Is It Public Domain?

Berkeley Law just released a handbook on determining the copyright status of works created between 1923 and 1978:

Is It In the Public Domain? A Handbook for Evaluating the Copyright Status of a Work Created in the United States Between January 1, 1923 and December 31, 1977

It’s a really great resource, though I can’t pretend not to be a bit saddened by the need for such a handbook at all. We’re basically living in a period of eternal copyright and it’s ludicrous to think that a significant chunk of our 20th century art and culture might never enter the public domain (if companies like Disney and Sony have anything to say about it). 

Hey, let's have fun, okay? Because soon I won't be able to.

This just in from Berkeley – the class schedule for my inaugural semester as a law school student!

  • Civil Procedure
  • Criminal Law
  • Torts
  • Legal Research & Writing

It’s getting real, people. 

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California Fracking Activity Set to Mushroom

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Friday, Berkeley Law released a new report on hydraulic fracturing (“fracking”) in California, focusing on wastewater and potential water quality impacts. The report, “Regulation of Hydraulic Fracturing in California: A Wastewater and Water Quality Perspective,” is an independent analysis produced by Berkeley Law’s Center for Law, Energy & the Environment (CLEE) through its new initiative, the Wheeler Institute for Water Law & Policy (Wheeler Institute).

Hydraulic fracturing is the process of injecting fluids under high pressure to crack underground rocks and release tightly held oil or gas. The hydraulic fracturing process also yields byproducts, including wastewater, which must be properly managed in order to reduce any risk to human health and the environment.

Co-authored with Wheeler Institute associate director Michael Kiparsky, the report notes that while oil and gas producers have used fracking in California for many years, we are witnessing potentially alarming projections of dramatically increased fracking activity in California due to the availability of new fracturing techniques.

The report comes out at a time of intense activity and interest in California in fracking. On April 8, a federal judge issued the first major ruling in a California fracking lawsuit, finding that the Bureau of Land Management (BLM) failed to adequately consider the risks presented by fracking in its issuance of oil and gas leases on federal lands. And the California Department of Conservation’s Division of Oil, Gas & Geothermal Resources (DOGGR) is currently undergoing a pre-rulemaking process with stakeholders, gathering information that will influence new and revised regulations. Nine bills on fracking have been introduced in California’s current legislative session, several lawsuits have been filed, and there is surging public attention on to the issue.

Contrary to its traditional role as a leader in environmental protection, California lags behind other states on hydraulic fracturing regulation. Wyoming, Colorado, and other states currently set stronger standards for transparency, safety, and environmental stewardship.

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The risks presented by hydraulic fracturing include potential contamination of ground and surface waters from well casing failure, improper fluid handling at the well site, and improper treatment and discharge of fracking “produced water” that contains harmful substances. Additional risks include the potential for induced seismicity from injection wells, as experienced in other states, and potential air quality and climate change impacts, which are especially relevant to the development of oil-rich shale formations in California.

While some peer-reviewed studies on risks to the environment and human health from fracking exist, there is a need for additional research. In the face of such scientific uncertainty, our own report urges caution, greater transparency, and increased accountability for oil and gas operators.

First, to enable public participation and drive greater accountability, regulatory agencies and the public require comprehensive information on where, when, and how fracking will occur in the State. While the applicability of the California Environmental Quality Act (CEQA) environmental review and public participation process is litigated in court, we support near-term changes to the current regulations, including:

  • At least 30 days advanced public notice of all fracking events, included the full list of chemicals to be used in fracking fluid;
  • Mailed notice to all property owners near planned fracking or injection sites;
  • Baseline testing of water quality in aquifers near oil and gas production activity, to enable tracing potential contamination to operators and assess pre-fracking water quality; and
  • Development of a formal process by which concerned citizens can respond to planned fracking events.

Second, we urge better inter-agency coordination and planning to prepare for and mitigate the harmful effects of fracking. We recommend:

  • Increased engagement among DOGGR, the State Water Resources Control Board (SWRCB), Regional Water Quality Control Boards, the U.S. Bureau of Land Management, and the California Air Resources Board (CARB), all of which have jurisdiction over some aspects of unconventional oil and gas development in the State; and
  • More peer-reviewed studies on the risks presented to California water sources from fracking, the risk of induced seismic events, and potential air quality and climate change impacts.

Third, we recommend better tracking and handling of fracking wastewater to protect against potential water impacts, including:

  • Requiring more extensive recordkeeping and reporting on the disposal of fracking wastewater;
  • Considering the use of unique chemical tracers placed into fracking fluid to aid in identifying potential contamination events and assessing liability;
  • Providing clear information on how fracking produced water may be safely reused or recycled to reduce pressure on California’s water supply;

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  • Prohibiting the discharge of fracking wastewater to publicly-owned treatment works (POTWs), at least until EPA issues pretreatment guidelines; and
  • Requiring more stringent regulation and enforcement of fluid storage and handling at well sites.

Historically, California has set the bar for environmental protection and stewardship. With mounting public attention to the issue,we urge the State to take a proactive stance to protect our environment in the face of uncertainty.

Jayni Foley Hein
The Berkeley Blog

Saturday, 13 February 2013

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Redefining Mental Illness

This is a radically different vision of severe mental illness from the one held by most Americans, and indeed many American psychiatrists. …. Moreover, the perspective is surprisingly consonant — in some ways — with the new approach by our own National Institute of Mental Health, which funds much of the research on mental illness in this country. For decades, American psychiatric science took…

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Researchers Examine Emerging Market for Used Electric Vehicle Batteries

Researchers Examine Emerging Market for Used Electric Vehicle Batteries

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A new report from UCLA and UC Berkeley shows that used electric car batteries could help California achieve its renewable energy, greenhouse gas reduction and energy storage goals more efficiently — and could lower the cost of owning an electric car.

As California searches for cheap energy storage options, a new report by the Climate Change and Business Research Initiative at the UCLA and UC…

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A summer course for foreign lawyers interested in US environmental law

A summer course for foreign lawyers interested in US environmental law

By Eric Biber This summer Berkeley Law is providing an exciting opportunity for lawyers around the world who are interested in learning more about US environmental law. Our seventeen-day course in late June and early July provides a thorough grounding in all the major issues in US environmental law (ranging from air pollution to natural resources, water rights to environmental justice). The…

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Eduardo Luna, University of California, Berkeley - School of Law
  • “Despite common misconceptions, M’s/M.A.’s have contributed significantly to general civil rights struggles & specifically to public school desegregation…for as long as their Black counterparts. This fact is worth noting because it more completely describes the civil rights history of the U.S… Scholars all too often overlook this chapter in the book of legal history.”
  • “… some legal scholars, including several of the most eminent, have characterized non-Black minorities contributions to civil rights as secondary to those of Blacks at best, & at worst, have omitted their contributions altogether… Cornell West describes non-Black minorities’ contributions to civil rights as ‘slight though significant’… As long as civil rights scholarship is incompletely written, students & their scholarship will…fail to include the continuing civil rights struggles of M’s/M.A.’s & other communities of color…”
  • “Among the common justifications scholars offer for deliberately omitting M/M.A. civil rights history is that M’s/M.A.’s do not suffer from discriminationAndrew Hacker…describes M’s/M.A.’s, Asians/Asian-Americans & other immigrant groups as less affected by discrimination because, ‘none of the presumptions of inferiority associated with Africa & slavery are imposed on these other ethnicities.’ Hacker’s assertion is flawed. True, [these] immigrant communities do not have the same association with slavery that Blacks do, but a history of slavery exists nonetheless. M’s/M.A.’s & other immigrants do not suffer any less from discrimination than Blacks do.”
  • “Additionally, I agree with both Harris’ & Hacker’s assertions that Blacks’ unique association with slavery has influenced subsequent discrimination based on race/ethnicity in the U.S. like no other community. However, the claim becomes dangerous where it exclusively focuses on the Black experience at the expense of omitting the experiences of others… why many Americans believe that the discrimination from which Blacks suffer is not only the most oppressive, but also an accurate model by which to understand & remedy the discrimination that all racial/ethnic communities suffer… It is…widely assumed that by addressing the discrimination suffered by Blacks, other racial/ethnic groups necessarily will benefit. The logic is as follows… eliminating the discrimination from which they [Blacks] suffer will necessarily eliminate the discrimination from which other communities suffer… True, M’s/M.A.’s & Blacks suffer from some similar forms of discrimination. But, discrimination also exists that is unique to each communitycourts frequently ignore discrimination from which M’s/M.A.’s uniquely suffer.”
  • “Latinos comprise the most impoverished racial/ethnic group, are least likely to have health insurance, & are the least educated… Unconsciously for many, yet consciously for some, Black historical legal experiences are positioned on center stage, & the experiences of other minority groups are relegated to secondarythe Black community is held out as representative of all oppressed racial/ethnic communities.
  • “Could it be that some Blacks have distanced themselves from immigrant communities as a means of establishing themselves as more entitled than immigrants to material & social benefits? Perhaps some Blacks have aligned themselves with the dominant White majority in an effort to marginalize M’s/M.A.’s… In the past decade, Black voters in California were divided over legislation that curbed immigrant rights & bilingual education, & in Los Angeles they voted against a progressive M.A. mayoral candidateIn 1994, California voters passed Prop-187… obviously aimed at Mexican immigrants… According to several scholars…Prop 187…enjoyed only 22% of the Latino vote but received approx. 50%  of the Black votes… in 2001, Black voters voted overwhelmingly in favor of White mayoral candidate Jim Hahn instead of… Antonio VillaraigosaDespite Villaraigosa’s clearly more progressive stance, 80% of Blacks voted in favor of Jim Hahn…”
  • “Despite a long history of involvement, academics frequently overlook M/M.A. contributions to civil rights struggles… M’s/M.A.’s have struggled to end desegregation since at least the 1930s. They probably did not undertake similar efforts before the 1930s because a formal public education was not established before that time… But M/M.A. schoolchildren were segregated even before then… Although rarely cited in legal history books & rarely recognized at large, the first successful court-ordered public school desegregation for M’s/M.A.’s occurred in… 1931, in Alvarez v. Owen… The next apparent school desegregation case litigated by M’s/M.A.’s is Mendez v. Westminister School District of Orange County… Mendez’s impact on public school desegregation was well understood by the legal community. Several legal scholars commented on the support that Mendez would provide for efforts to desegregate public schools for Black pupils… Mendez’s contributions to Brown do not end with…social science to support desegregation.”
  • “The Supreme Court finally considered discrimination against M’s/M.A.’s in Hernandez v. Texas. Interestingly, it was decided a mere 12 days before Brown… its importance to the desegregation of public schools is worth mentioning… While Brown clearly prohibited the segregation of Black school children, its protection of their M/M.A. counterparts was more ambiguous. For 16 years, not a single court interpreted Brown to prohibit segregation of M/M.A.’s. It wasn’t until 1970 in Cisneros v. Corpus Christi Independent School District that a court held that Brown protected M/M.A.’s as well… The 5th Circuit recognized the novelty [newness] of Cisneros because it involved de facto segregation… The Cisneros court interpreted Brown to prohibit both de jure & de facto segregation.”
  • “Contrary to what I suspect many will believe, my intent is not an attempt to win ‘the race to the bottom’ or the ‘oppression sweepstakes’ for M’s/M.A.’s. Rather, it is to explain that… these facts are repeatedly unrecognized… The marginalization of Latinos, & M’s/M.A.’s particularly is alarming. But if M’s/M.A.’s are so marginalized, why have scholars overlooked their experiences? … Bowman notes, ‘Latinos suffer… by a society that never learns about Latino’s unique history & present experiences’Constitutional law textbooks similarly fail to include the contributions of M’s/M.A.’sM’s/M.A.’s contributions to civil rights are almost completely omitted… Indeed, M/M.A. contributions to civil rights are lengthy, continuous and extend far beyond the cases mentioned… The observation of which makes the continuing omission of their history inexcusable. The omission of M/M.A. experiences extends far beyond legal academia… The coverage of the [1992] Los Angeles riots by news media supports such an assertion… journalistic and scholarly works focused on the dynamics between Whites, Blacks and Koreans… Professor Perea notes that, ‘only one published article focuses exclusively on describing and explaining the role of Latinos during the Los Angeles riots.’ …The majority of the victims of early riot violence were Latinos. A full third of the dead victims of the riots were Latinos. Between 20-40% of the businesses damaged were Latinos owned, and Latinos comprised one half of all the arrested…"

Sony Pictures Taps Daniel Floyd to Oversee Litigation

Sony Pictures Entertainment is turning to Daniel Floyd to assume responsibilities for all litigation matters at the studio.

As the new executive vp litigation, Floyd will oversee the company’s prosecution and defense of matters in courtrooms and arbitration forums, reporting to general counsel Leah Weil.

Floyd comes to Sony from Gibson, Dunn & Crutcher, where he served as co-chair of the firm’s litigation department and represented such clients as Apple, Intel and Herbalife. The UC Berkeley law graduate replaces Len Venger, a veteran litigator who is retiring.

“Daniel Floyd is a respected litigator, who brings with him a wealth of experience. He will be a meaningful addition to our legal team,” Weil said Monday in a statement.

On Sony’s court docket at the moment: the defense of an antitrust lawsuit brought by digital animation workers alleging they were denied better work opportunities via anti-poaching pacts in the industry; a proposed settlement with former workers alleging Sony didn’t better safeguard private data before a hacking; and a wage lawsuit by those tasked with defending parking spots for Sony-produced television shows.