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Around the Blawgosphere: SCOTUSblog’s Tom Goldstein a Guest on ‘The Daily Show with Jon Stewart’

Posted Apr 6, 2012 8:35 AM CDT
By Sarah Mui

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'Can he make it?'

Nova Southeastern University School of Law professor James B. Levy is rooting for a young lawyer who started blogging as "hangshingles" at I Just Want to Practice Law ... a few weeks ago.

"He's got $130K in educational debt and $3,500 in savings," Levy wrote at Legal Skills Prof Blog, referencing hangshingles' first post, Starting numbers (Day 5). "Can he make it?" Levy writes that he plans to continue checking out the blog to see. And so far, so good: Within two weeks, hangshingles had his first case; at press time, he has two paying gigs and two pro bono ones. He got his cases after spending time introducing himself to local judges and putting himself on the court-appointed lists in surrounding counties.

Levy—and thousands of others—found hangshingles' blog by way of a mention at Above the Law. The blogger was humbled by the experience. "In the past 24 hours, I have had nearly 10,000 people visit this blog, and those who contacted me have almost universally been supportive and positive. Everyone thinks I’m going to make it. Well thanks a lot, everyone, I was hoping to fail in the privacy of my own home. I’m kidding, but I can’t help but wonder if the odds are against me. In a few months will I be crawling to some established attorney, begging for a job? I mean, I hope not."


Talking Terms of Use

Social sharing website Pinterest updated its terms of use late last month (but they are effective as of today). Rocket Matter's Matthew Hickey noted at The Sociable Lawyer Blog that Pinterest’s original terms allowed the website to sell users' content for a profit. This item was removed from the updated terms.

The site also started providing a copyright infringement notification form for those who have trademark or copyright infringements to report. But some legal observers still don't think the new terms clarify whether pinning someone else's copyrighted material to your boards will get you in legal trouble.

"Pinterest changed it’s 'Pin Etiquette' from 'Avoid Self Promotion' to 'Be Authentic' because 'Pinterest is an expression of who you are.' Pinterest’s Terms of Service always prohibited users from sharing material they didn’t have rights to, but the prior language of the 'Pin Etiquette' arguably created a conflict with those terms of service. Although the new 'Pin Etiquette' is unlikely to actually change the way people use the site, it does resolve that conflict from the company’s standpoint. Most experts agree that if you a user using Pinterest, the only way to avoid potential liability for copyright infringement is to only 'pin' material which you have the right to use."

Kirsten Kowalski, a J.D. who tearfully deleted her Pinterest inspiration boards wrote a follow-up post at DDK Portraits expressing her disappointment with the new terms. She still doesn't feel safe posting others' copyrighted work.

"Basically, under the new terms, if a Pinterest user plans to use the 'pin it' button to pin work from third party websites (and, if we are being honest here, this is precisely what the site was intended for in the first place and what the vast majority of people’s pins consist of), that user must first analyze and determine if each pin might violate someone’s copyrights. In other words, for you to use Pinterest for its main purpose, you must stop, read, learn, think and play like a lawyer. You must first decide whether your pin or re-pin would be deemed by a court to be 'fair use' of whatever image you are pinning. As I stated in my original post, determining what constitutes 'fair use' can be a pretty complex and confusing analysis that is extremely fact-specific and must be done on a case by case basis. That is really not what I want to be doing when I just want to pin pretty pictures. Do you?"

Meanwhile, Gardere Wynne Sewell partner Peter Vogel also made note of LinkedIn's terms of use this week at Vogel Internet, Information Technology and e-Discovery Blog—namely that the site has an unrestricted license to everything posted. "Users should be mindful of what they post and messages they send using LinkedIn since LinkedIn has a license to all email messages, messages to and from connection, recommendations [and] PowerPoints posted.

"Most people are shocked to learn that LinkedIn has this license, so maybe people should take more time to read the ToS on websites so they would not be surprised," Vogel wrote. Why not, if you have 40 minutes a day to do so?


Blogger's 13 Minutes of Fame

SCOTUSblog's Tom Goldstein appeared on The Daily Show with John Stewart this week. Stewart's first question for Goldstein, who has argued 24 cases before the Supreme Court? "Which way are [the justices] going to rule on health care?"

"I would say it does not look great for the administration," Goldstein told Stewart. "I would say the administration's probably not going to have the best June."

As the 6½-minute segment started to come to a close, Stewart asked Goldstein to stay for more questions. So a second 6½-minute segment was posted on the Comedy Central website. In the second segment, Stewart's questioning revolved around Florence v. Board of Chosen Freeholders. Goldstein argued in that case that the strip searches of defendant Albert Florence after an arrest on a warrant for unpaid traffic fines, were in violation of the Fourth Amendment. But the justices upheld the strip searches in a 5-4 decision.

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