Denise Howell is a seasoned appellate and intellectual property litigator based in Los Angeles. Denise writes one of the first and most popular law-related blogs, Bag and Baggage, coined the term "blawg" and helped pioneer podcasting for lawyers. Microcontent obsessed since 2001, she is frequently quoted in the media on legal issues involving intellectual property and technology law. "Sound Policy" is Denise's show at IT Conversations, and it's also what she hopes results from the briefs she submits to court. Email Denise at email@example.com.
Dennis Kennedy is a computer lawyer and legal technology expert based in St. Louis, Missouri. An award-winning author, a frequent speaker and a widely-read blogger, he has more than 300 publications on legal, technology and Internet topics, many of which are collected in his e-books. Dennis has been described as someone who knows almost every rock song in existence and, more importantly, how they apply to technology and law. Email Dennis at his gmail address.
Tom Mighell is Senior Counsel and Litigation Technology Support Coordinator at Cowles & Thompson in Dallas. He has published the Internet Legal Research Weekly newsletter since 2000 and blogged about the Internet and legal technology at Inter Alia since August of 2002. With Tom's singing, Ernie on guitar and Dennis' encylopedic knowledge of rock music, we may have the beginnings of a good band, if this whole blog thing doesn't work out. Email Tom at firstname.lastname@example.org.
Marty Schwimmer left a partnership in the largest trademark practice in the world and founded Schwimmer Mitchell, a full-service IP micro-boutique in Westchester County, New York, where he represents owners of famous and not yet famous trademarks. He founded The Trademark Blog, the first IP law blog and the one with the most pictures. He is the first to come in and the last to leave in his firm. Email Marty at email@example.com.
Ernest Svenson practices law with a mid-sized law firm in New Orleans, specializing in business-related lawsuits. Most of his practice takes place in federal court, especially the Eastern District. He is best known for his weblog Ernie the Attorney, which he started as an experiment. Like many experiments it got out of control. Nevertheless, he continues to practice law and, occasionally,
to seek enlightenment. Email Ernest at firstname.lastname@example.org.
About this blog
Between Lawyers provides just-in-time group commentary on the issues
raised when technology, culture and the law intersect. We take you
behind the firewalls and conference room doors to show you how
experienced lawyers deal with these issues and help you prepare for
the new challenges we all face. For more, see our introductory post.
Law Tech Guru post on Attention Deficit Trait (as opposed to Attention Deficit Disorder), where is the window with the url? why are there so many windows open on my desktop, oh great, another email from them, hey, CNN Breaking News, oh, big deal, he pled guily, who cares, there's the phone, I have to get a new phone, I'll let that go to voice mail, I didn't return Dennis' call, now he's going to think I'm angry at him, more email, I should turn off that feature, I wonder how to turn it off, spam seems to be creeping back up, oh, another email from her, clients, can't live with them . . ., what's up with the news reader, what was I doing? Oh, there's a Law Tech Guru post on attention deficit trait.
The EFF Action Alert lets you send a standard or personalized email to your Senators about the efforts to pass the National Weather Services Duties Act of 2005 that Marty and others have criticized.
I tried out the automatic sending feature and, although the form and instructions are a little confusing, it seemed to work well. It's a great idea for generating ways for the public to communicate their opinions to their legislators, although I wonder how effective email campaigns to legislators will be. The old letter-writing style might work better, but not as well, apparently, as a well-funded effort by well-heeled lobbyists.
It would be great to create a similar approach to automating the sending of Marty's email by those who are so inclined. Perhaps we could look into whether EFF would allow third parties to draft letters that could be incorporated into its action alert service.
To what extent is it appropriate for the online research of government officials and the judiciary to be underwritten by private commercial enterprise? Context. More. (And see Berring on "Infotainment.")
Marty's post with his draft of a letter to his Congressional representative got me thinking about our idea to have Between Lawyers show you what happens behind the conference room doors in law firms. I thought it make for a good case study to react to Marty's draft in the same way I might if we were practicing in the same law firm.
So, here are my initial reactions to Marty's letter and the directions he/we might take it:
I can't believe that I finally get the chance to say to Marty what he always says to me - I think your letter is way too long. I really like what you are saying, but I think that it takes too long to get to the point. How about a few bullet points about what you want the congressperson to do?
I think that you are saying:
1. Current methods of getting good information about pending legislation are not only inadequate for those of us who want to learn more about the bills but they also create the impression that bills are the products of secret negotiations with "special interests."
2. You have two recent examples to illustrate this.
3. The lack of information about these laws will increase the suspicion people have about legislators, increase public skepticism about laws and increase the level of cynicism about the political process in general.
4. No one thinks that any of these results can be good things.
5. You have seen the benefits that discussion in the blog world can bring to these kinds of matters and it is a simple and free way to provide citizens with information they really want to have, with the side benefit of giving legislators credit for opening the process and better serving their constituents. Note: I'd expand the notion to blogs in general, not just legal blogs.
6. If they need help setting up a blog, we can help. ;-)
I suggest that you change your approach to the letter/post in the following
1. Simplify and shorten the letter - some of the explanatory material makes sense in your post but not in a letter that someone with a busy schedule will read. Make it simple enough that even a lawyer will read it.
2. Turn the letter into an action. Post the letter as something that readers who agree with you can copy and send to their Senators and Representatives. Add some links so people can get the contact info easily, so that they will in fact send copies to their Senators and Reps. Tom probably has some good suggestions for those types of resources.
3. Turn the core idea into a movement - Congress should be more open and more blog-friendly and produce RSS feeds for bill tracking and the like. Why not try to make it happen? Why not see if you can show the Congressperson a real-life example of what blogs can do? Why give them one letter from you when your opinions reflect a much bigger constituency? As they say, let 'em know.
4. Invite people to comment on and even revise the letter. See if we can improve it over the next few days.
My two cents.
I hope that your interest in bankruptcy law isn't a reflection on the amounts of money most bloggers currently make from their blogs.
I received a notice today from a foreign law firm (that has many U.S. clients)that while it has been able to hold its fees down over the years due to its efficient use of technology, it had no choice but to raise its rates 5%, due to the weak U.S. dollar.
I'm thinking of sending my Congressman an open letter (to be posted here) suggesting that they engage in a dialog with legal blogs about pending legislation in general and the 'Simon Barsinister' weather bill in particular. Maybe you would consider sending a similar letter to your representatives (and posting the letter on your blog).
Dear Congressman ____:
I am a registered voter. My home and business (a law firm) are located in your District. I also write for two blogs, The Trademark Blog and Between Lawyers.
You may be prepared to agree that the US Congress sometimes passes bad laws. There are of course many explanations, but one is the role of special interests, who are able to both hide in smoke-filled rooms and hide in plain sight. They count on the fact that opponents will not be able to mobilize against them, in time or perhaps ever, simply because information about the pending legislation was not disseminated effectively to the right group (I think, for better or worse, the recent Bankruptcy Bill may possibly be an example of legislation that snuck through in broad daylight).
A problem is that only groups that seem to be motivated to effectively track pending legislation are the special interest groups themselves.
However besides the special interests and the uninterested is a 'general interest' group of unknown size and influence. They would understand nuances and implications and would be prepared to communicate their views to their elected representatives. For want of a better term, they are 'concerned citizens.'
I think that this is a group that mainstream media has failed.
I encourage you, in your special role as 'expert federal legislator,' to consider participating in a somewhat novel communications network for creating a conversation about legislation with concerned citizens: legal blogs.
While you cannot avoid stories about the 'blogosphere' these days, there is less general coverage of blogs written by legal professionals (practitioners, academics, students, paralegals) (I learned what little detail I could about the bankruptcy bill not from the Wall Street Journal or the NY Times, but from lawyer-bloggers).
Legal blogs represent a new type of forum for discussing proposed legislation. It is not a gathering of extremist constituencies, nor is it a 'town hall' meeting of the uninformed. It is a good place to get good feedback from an articulate, broad spectrum of voters.
There is now an opportunity for you as an elected representative to reach out and participate in a conversation about a new odd piece of proposed legislation.
I refer to Senate Bill 786 titled A bill to clarify the duties and responsibilities of the National Oceanic and Atmospheric Administration and the National Weather Service, and for other purposes. In short, it prohibits the National Weather Service from disseminating weather information.
A collection of introductory links about the bill can be found here.
It is easy to come to the conclusion that this is a destructive bill intended solely to benefit a for-profit weather information provider that has contributed money to its sponsor. In other words, Washington at its worst.
If the bill is as bad as it seems, and it passes, then that represents one more bit of proof that 'the game is rigged.'
If the bill is not as bad as it seems, then we're interested in learning why it isn't.
But we and our readership can't make an informed opinion yet. May we look to you to 'set us straight'? May we look to your office for commentary, advice and analysis (for the purposes of posting on our website)?
We would also happily advise on setting up your office's RSS feed for legislative information ;-)
We all know how much money Jane Fonda made with her special exercise videos back in the 80's. Since then there have been a host of other exercise programs that have successfully emerged. Most of these programs have lost luster, leading many to conclude that the fitness market is saturated and no longer worth examining.
I think, however, we are overlooking a lucrative niche market: lawyers. In particular, litigators. These are people who lead highly stressful lives where being combative and ill-tempered is pretty much the norm. So what kind of exercise regimen could be devised to help these tense souls dissipate all that internalized aggression?
I'm thinking 'some form of stretching, coupled with the indiscriminate use of automatic weapons.'
In San Francsico, Alameda and Santa Clara counties in California, plaintiffs in civil jury trials prevail 60% of the time. In Solano county, plaintiffs prevail only 33% of the time. Via DailyRepublic.com.
My wife, my daughter (the young drummer) and I recently went to the St. Louis stop on the Steve Gadd drum clinic tour (details here). Gadd, perhaps the most respected drummer in the music business today, played drums and answered lots of questions.
Of special interest to me were his comments about the culture of drumming and creativity. He explained how he used to play records at slow speeds to learn how drummers played on certain tracks. He talked about all the drummers he had learned from, drummers he borrowed ideas from and how drummershave always shared ideas and techniques and learned from each other.
He stressed the notion of a great continuing conversation between drummers and that the learning of drumming was transferred by drummers talking to each other and sharing what they knew.
He painted a picture of an exciting, creative space where drum ideas were put out into the world at large and used and modified by other drummers to create an evolving, vibrant music.
He pointed to a number of his tracks that were subtle variations on other drum tracks and how ideas were incorporated into some of the most famous drum tracks in popular music.
When people talk these days about the remix culture, I see the world of drumming that Gadd described. With a culture of sharing, music and art grows, evolves, honors the past and creates the future. And thats how its been for thousands of years.
Today, we look at intellectual property rights, digital rights management, ownership and control with a such a fierce determination and a fixation on property that I worry about whether well be left owning bundles of more and more elaborate IP rights to less and less interesting works and leave a legacy of art and culture that is much poorer than when it was turned over to us so that we could leave our own mark on human culture.
Laws have consequences, often unintended ones. Lets be very careful out there. Marty points to efforts to control and exploit for financial gain the ownership of weather data. Maybe its important. Maybe its very important. But I cant say that its not important. Try explaining to your children how someone can own the weather information.
In fact, theres an important kind of creativity based on reorganizing, recasting and repositioning existing ideas and materials in new and unexpected ways that let us see new connections and see with new eyes. Are we now in danger of legislating and litigating this type of human creativity out of existence?
What is the value of your song if youve made it so only a few can hear it? I cant dance to a copy of your copyright registration form.
Monetarily, it might be greater, at least by record company calculations, but the musicians Ive known want as many people as possible to hear his or her song. Its about hit records and hearing your song played and enjoyed by people.
Lets not forget that there is a lot at stake in almost every intellectual property legal issue we face today. I hope we are not creating a world where my daughter cant learn Steve Gadds drum techniques or play his tracks and try to evolve them into her own without having lawyers negotiate for her rights to do so.
Note: This post was inspired by my first listen to Bruce Springsteens new Devils and Dust CD.
Futher to our discussion here that blogging is not necessarily all that different from technological waters companies have been navigating for some time: Evan Brown has a write-up of a recent federal trial court decision that stands behind an employer's ability to fire those who violate its email policy.
The Senator indicates that clarification was needed because NWS has backed away from a 'pledge' not to provide services that could have been provided by the commercial weather industry (but NWS will instead merely give such a policy due consdieration).
The bill has an exemption for the NWS warning the public of hazardous weather. A senator from the hazardous weather state, Florida, has come out against the bill, indicating that while the wind howls, the NWS would be busy consulting lawyers whether some condition is hazardous or not.
Well, this explains a lot. A UK researcher found that the IQ of those who tried to juggle messages and work fell by 10 points -- the equivalent to missing a whole night's sleep and more than double the 4-point fall seen after smoking marijuana." More on the bad effects of email here.
My dad just let me know about this interview with Adobe's CEO Bruce Chizen in the San Francisco Chronicle. There's a lengthy discussion of his views on software piracy (he's "con"), including his hope that the U.S. Supreme Court winds up "making it illegal for companies like Grokster to share intellectual property."
Ouch. Maybe this was just a misstatement. (With all due respect to Mr. Chizen, whatever your views on P2P networks there's no getting around the fact the sense of this sentence could have been greatly improved by the addition of just one word, e.g.: "unlawfully share intellectual property," or, better and shorter, "share our intellectual property." A great deal of the intellectual property being shared on P2P networks is there because its creators want it there. Also problematic is the fact that based on this phrasing Mr. Chizen might be confused about just who is doing the sharing.) But misstatements like this from CEOs of major technology companies are just...sad. Maybe the rethink(ip) folks are right that in this day and age intellectual property law needs to become part of the standard educational curriculum.
Bruce MacEwen recently attended a couple of events generally reserved for insiders in the arena of law practice management. Except that Bruce attended these as an acknowledged blogger-in-residence, and has blogged his detailed reports of the proceedings. This is a classic example of the kind of information main stream media outlets can't or won't cover (and specialized media traditionally covers at a snail's pace), but that can be of great interest to a widely dispersed group of people who otherwise would have no way of taking part. So if that's you, go check out:
Denise mentioned the intriguing question of where the status of employee ends and that of private citizen begins.
I'm fascinated how discussions of the implications of blogging so frequently lead to fundamental issues like this one.
Dancing around the discussion of blogging policies is some sense that an employer can reach too far in trying to control the private life and behavior of an employee. The line is not as easy to draw as people might initially think.
If an employer reaches too far, the employer will lose its best and most creative employees. If an employer doesn't reach far enough, especially if it does not follow-up with education and training about laws, regulations and other rules, the employer runs the risk of legal and other problems.
It's interesting to compare the multi-paged, heavy-handed and legalistic approaches employers take with their adult employees to the shorter, simpler, more direct and generally more respectful approach advocated for Internet safety in the often-recommended family Internet use contracts for teenagers, such as this one, this one, this one and this one.
Interesting exercise: compare your Internet usage policy to these "contracts" and consider which approach might give you better results.
The article quotes our neighbor and Corante COO Stowe Boyd, who isn't happy about the conclusions to be drawn: be aware that an employer might react negatively to something, or blog anonymously. Me? I like the comment from Technorati's Adam Hertz with which the article wraps up. It has wisdom for all concerned:
"I had a high school teacher,' he recalled, 'who used to say 'I have only two rules: Don't roller-skate in the hallway and don't be a damn fool."
Today brings news that a group of bloggers has submitted an amicus brief in the writ proceedings concerning Apple's efforts to discover the sources of certain rumor site stories. As far as I know this is the first time bloggers have banded together to use the legal process to weigh in on a pending legal issue — in addition to blogging about it, of course.
[Update] Thanks to xrlq for pointing out this may be the first case, but (by a few days) not the first time: Bloggers speak up in Apple case
The News.com headline screams: "Blogging Censorship Gains Support." The summary says: "Most Americans believe bloggers should not be allowed to publish sensitive personal information about individuals, according to a new survey."
As I read more, I see that the story is based on a survey conducted by a web hosting company. That's right, a web hosting company. No mention of the scientific validity of the survey.
While only 30% of the respondents had actually visited a blog and 1/3 had not even heard of blogs, 70 - 80% of respondents were in favor of limitations on blogging content.
Most importantly, "the survey revealed bloggers are not taken as seriously as traditional media."
I wonder if the survey results reflect the effects of a steady diet of traditional media stories.
While I don't know whether to laugh or cry when I see this kind of stuff, I do know that we are increasingly likely to see efforts to regulate blogging because of stories and headlines like these.
I am convinced that there is no more important skill to teach our children than the ability to read critically.
Great post, Dennis. I can only speak as someone who primarily helps folks sort out problems once they've arisen, but my common sense gene tells me that you're right to put the focus on overarching, big picture goals and not minutia. So here's my request for a "Part 3:" in today's world how do you do training that people will actually attend, enjoy (I mean, as much as possible), retain, and feel motivated to live out in their daily lives? My firm has some interestingideas along these lines. I also was intrigued by this interview with Dr. Henry Jenkins at IT Conversations regarding the learning power of game play. What do you think of these concepts, and what else would you suggest when it comes to communicating through training?
Marty sent us an email yesterday that suggested that we do some posts he wanted to call "Deliberate Provocations" designed to start some conversations. He also indicated that he thought that I, rather than he, should start this new line of posts. I'm not sure why he wanted me to take the lead.
My first reaction was, wow, this is great, some bloggers are actually going to make some money with a major league sponsor.
My second reaction was remembering how I have seen the most criticism for wanting to do sponsorships on blogs from one specific group - professors. I've heard it all - conflicts, tossing away my credibility, blogs must be free, you name it.
Then, today, a group of professors takes the lead in blog sponsorships.
They are even openly inviting other professors to join their network. I'm not seeing any talk yet of sullying the hallowed halls of academia or anything like that.
In the old days of blogging (before today), the professors warned us against going commercial. Now they take the lead. What lessons are we supposed to take from the actions of our teachers? Is it a case of do what the profs say, but don't look at what they actually do?
My initial feeling is that if it's OK for the professors to take the dough, then what will stop the practicing lawyers, who are generally considered to be looking to make money off of this blogging thing rather than to educate, from jumping in? I mean, we look to the profs to set an example for us.
If the Law.com network was a baby step for legal bloggers, then the Law Professor Blog Network move seems like a giant step. Have the barriers to blog sponsorship been knocked down? Or, are the profs just a better marketing vehicle than other bloggers? Or am I making more out of this than is really there? Or am I simply suggesting to other sponsors who haven't jumped on the blogging bandwagon that they might have better options than the ones that have already been taken by the early sponsors?
The second often-neglected and not-usually-thought-of-as-legal-work part of these policies is TRAINING. In my recent presentation on this topic, I noted that a written policy without accompanying training all but guarantees later problems.
Marty mentioned some of the risks that use of technology, including blogging, can raise. I can mention several more, especially for executives in publicly-traded companies or those in companies working toward IPOs. Law schools teach lawyers to spot all of those issues.
I had an instructive conversation with a friend of mine on the plane trip to Chicago for ABA TECHSHOW. I told her that I was speaking on technology use policies. She said that her organization needed to put together a new policy. As we chatted about the types of issues we see today, I could see that, rather than helping, I was making the task seem more daunting, which wasnt my intention.
I changed the conversation to focus more about whether a cover every possibility approach made sense for her or anyone else and whether there were more reasonable approaches to take.
My basic premise is that technology changes so quickly that the more precise you are, the more likely your policy will be outdated and be difficult to interpret in the future. My second premise is that the ways you want people to behave seldom change. My third premise is that if people understand what the risks and dangers are, they will tend to make good decisions. You are free to disagree with any of those premises.
To me, then, a good policy should be based on setting out your core principles (dont break the law; dont put key systems or information at risk; behave like you are in a work environment, not a frat house) and setting out the most important rules. Then, you put serious effort into training people how to use technology in ways that do not violate those principles and rules.
Heres a favorite example of mine. You will see many policies that prohibit people from introducing a virus into the office system. At the same time, there is no effort made to teach people safe behavior with respect to virus issues. As a result, the office consistently gets hit with viruses and it will be difficult to discipline a problem employee because there will be many other offenders. You have a great usage policy in the legal sense, but as a practical matter, its kind of a disaster waiting to happen.
The more that people understand the whys and hows, the better job theyll do at behaving in the ways that you want them to do under your policy. Thats training. Thats also common sense. Its also something that can get forgotten when you focus solely on the legal issues and see the item get blogging use policy done on your legal to-do list.
The two most commonly overlooked components of a technology use policy or blogging policy are communications and training. Interestingly, companies rarely involve lawyers in either of these issues, admittedly, sometimes for good reasons. Let me tell you that if you don't address these practical issues, you probably won't get good value for your dollars spent on legal services.
I'll give you these tips for free. You can thank me if you think they are helpful - that will help my feel like I'm doing some good.
In this post, I want to talk about communications. Ill talk about training tomorrow.
If someone took a close look at the cases involving bloggers and others getting into trouble for violating company policies, it wouldnt surprise me to find that nearly all of them involved some kind of communications failure. As a practical matter, I suspect that any existing policies and restrictions were not, as a practical matter, effectively communicated to the person who got in trouble. In fairness to some employers, however, the communications breakdown might have happened when a person failed to read a policy or listen to instructions despite an employer's best effort.
An important part of any usage policy is simply getting into a form and format that people can easily read, and will read. This involves factors like readability, headings, bullet points, highlighting the main points, sequencing of categories, organization and even font selection and sizing. Lawyers are not known for excelling at any of these areas. I always like to see clients who want to improve the look and feel of legal documents.
When I speak on this topic, I emphasize that you need to think carefully about who the audience is for your policy and when and under what circumstances they will be reading the policy. The fact is that people will rarely read your policy for the fun of it. They will be reading it either to determine whether a specific activity is or isnt allowed and commonly when there is a serious problem with potentially serious consequences.
If you have a policy that is 25 pages of single-spaced, dense legalese, people simply will not be able to find the answers that they want. Ideally, you want to make these policies very usable.
I think that you also want to be realistic about whether employees will read these policies. If you stick them up in an obscure place on your intranet or bury them in a stack of other paperwork, they probably will not get read. You also indicate that by your behavior that these policies are not all that important and that they are simply more paperwork.
Compare an approach where you take 15 minutes of a meeting to go over the highlights of the policy the big points and explain the need for people to follow the policy. Hand them a one page bullet-pointed summary at the end of the meeting. If you also use the meeting to confirm your trust in your employees and your appreciation for the value that they bring to your company, your chances of avoiding technology use problems increase dramatically.
Now, I think that this is all common sense. However, by treating blogging or, more accurately, technology use policies as purely legal issues and simply treating them as necessary legal obligations, you run the risk of neglecting common sense practices, like basic communications, the neglect of which will increase your chances of later legal difficulties.
Have you really communicated what policies you have? Care to see the results of a quiz for your employees about what is in the policies? See the problem?
Now, you can do a lot of these bad things in other forms of communication. It's just that there's more haste in blawging than in preparing, for example, a CLE paper, and therefore more opportunity to do dumb things.
So a blogging policy for law firms would address these issues (although does the discussion need to go beyond a blanket prohibition of dumb thnigs?)
The New York Law Journal on Friday quoted Denise and me in an article on blogging. Denise was referred to as an Internet Pioneer. I was referred to as "an old-timer in the expanding world of blawging." Some big firms may start blogging. Some may not. Everybody should. Your blawgage may vary. Sub. req.
First of all, I admire Randy for actually reading any article on blogging in 2005 that defines blogs in the opening sentence as "personal Web diaries." In my own system of scanning and triaging what I read, I'd move on to something else immediately.
In fairness, the article does point to some recent "guidelines" from the Electronic Frontier Foundation that offer some common sense approaches for employees who blog. And, in fairness, the article does a good job of summarizing some of the relevant legal concerns. It's unfortunate that the author didn't have the chance to read Randy's post about the article to see how a blogger like Randy can use his "personal diary" to write a good article that makes a good point, offers a balanced approach and provides some humor.
But, gee whiz, the hyperbole setting for the CNN Money article is turned all the way up to 10 and the Reefer Madness reference does seem appropriate.
I also got just a tiny sense that perhaps the author is not a blogger and probably hasn't read a lot of blogs.
The money quote:
"The Safest Way of All This isn't in the how-to blog guide, but remember the old days of paper and pen diaries? True, the audience is limited to the authors themselves and maybe a snooping sibling or two. Ones with a lock and key work best."
I'm tempted to write an article about how to write safely about blogging for traditional news publications. I'm not sure that CNN Money understands the major hit its credibility takes when they publish pieces like this one. In my own case, I've knocked CNN Money's credibility as a news resource way down as a result of this article. I've moved Randy's way up.
Look, the issues of blogging by employees are complex and a large number of factors must be considered. Articles like this one don't help the needed discussion (except to the extent that they provoke discussion).
I'm not sure that any company seriously wants to adopt a "put your blog under lock and key" blogging policy, especially if they want to keep their best and most creative and innovative employees. The issues of confidentiality, trade secrets, who speaks on behalf of the company, criticism of the company, and others are important issues that should be addressed (although I'm still surprised to find that they aren't already addressed by exisitng policies in most companies). The key in adopting policies is to balance the competing concerns and to reflect the philosophy and culture of your organization. That's not a purely "legal" decision.
My concern is that the more alarmist and sensational the reporting, the more difficult it will be for employers and employees to reach a reasonable balance in developing policies about blogging.
As I said in my presentation, I'd like to see policies based on a notion of "use common sense and good judgment," with the policies specifying the details necessary to help people stay within that philosophy and comply with applicable laws, regulations and contractual requirements. That's quite different than the "use a lock and key" approach. Both are possibilities, but I think your most valuable employees will prefer my approach to the "lock and key" approach.
In today's efforts to land and retain the best talent, you will want to give plenty of thought to the real world consequences of your blogging policies, not just the purely legal issues. Overly alarmist articles are not helpful to your decision-making.
As part of its Top 25 series, CNN has announced its Top 25 Technological Breakthroughs. Topping the list: "Wireless world." Interesting that the Internet doesn't get its own billing; instead, it's implicit in many of the others. Also interesting that #20, "E-baggage" (spam, spim, phishing, virii, worms, etc.), is included as a "breakthrough" at all.
On Wednesday we'll be recording the next Sound Policy show, which will focus on the interrelationship between businesses, weblogs, and employees. It'll be great to talk these issues over with lawyer and employment law blogger George Lenard, PR strategist and blogger Steve Rubel, and Groove Networks General Counsel (and newly minted Microsoftie) Jeff Seul. Here are some links that will help inform our discussion. If you have others to suggest, please let me know.
Well it's official: our back and forth here has resulted in consensus, and we'll be applying a Creative Commons license to Between Lawyers. Thanks to everyone who provided input and feedback. Our new licensing will show up here graphically and in our feed very soon.
I have to admire Ernie's way of apologetically talking about his simplistic analysis and then offering a very convincing argument. He convinced me.
Let me flip Ernie's Robert Frost reference. The selling point of the CC license is that it creates a "road more traveled." The benefits of this approach to licensing come from its widespread use.
Lawyers are known for always saying "no" to new things. Part of what Between Lawyers is about is showing ways lawyers can say "yes."
"I say we go with the CC license and work from within that system to make it better, more understandable and more predictable. If lawyers aren't willing to give it a shot, then why would ordinary artists and creators? Copyright laws are out of synch with reality. We need a new approach, and the best proposal so far is the CC license. It's not perfect, but it can be improved and we should improve it. But first we should adopt it."
As I've said, I like the direction the CC licenses are taking us. I like the directions the Open Source licenses are taking us. It's important to look at what the licenses say and push for changes that will improve them. My own history shows that the CC group will listen to constructive criticism and make reasonable changes.
Let's help push this approach forward. Count me in.
Marty, I'm feeling like we're reaching a consensus here. What's your call? If you're in, we can get the license applied to this blog and maybe write a bit about that process. I believe that the general rule would be that since Denise recommended that we adopt the license that she volunteered to be in charge of implementing it, right?
We'll have to talk about how far out of synch copyright law is with real world behavior one of these days.
I'll bet I win the award for the most simplistic analysis of the CC issue. My only defense is that I'm not as versed in copyright law as either Dennis or Marty, and I'm not as smart or industrious as any of my fellow BL contributors.
I share the concerns of Dennis and Marty, which I interpret as sensible concerns about how the CC license will be interpreted. But, after reading Denise and Tom's take, I realize that my concerns about the uncertainties of future interpretation are outweighed by my desire to promote the 'CC brand.'
I like Larry Lessig and I think what he has done in creating the CC license is bold and visionary. Of course, it makes tradionalists nervous, and that's completely understandable. We lawyers like to know exactly what rights we are giving up; experimenting with the law is not something we understand. The CC license is too new and too radical to accomplish the laudable task of making good lawyers feel sanguine. Perhaps I'm not a good enough lawyer, or maybe it's just my marginally substantiated belief that adopting a CC license 'is the right thing to do.'
What's the risk? I'm sure there is some risk, and if I let myself get embroiled in calculating the risk of adopting a CC license I could become nervous. But sometimes, as Robert Frost reminded us, you have to take the road less travelled. I say we go with the CC license and work from within that system to make it better, more understandable and more predictable.
If lawyers aren't willing to give it a shot, then why would ordinary artists and creators? Copyright laws are out of synch with reality. We need a new approach, and the best proposal so far is the CC license. It's not perfect; but it can be improved, and we should improve it. First, though, we should adopt it. That's my take.
Dennis wrote: "...as in the CC licenses, you can disclaim warranties, limit liability and cover other important matters. The second point is very important." I remember seeing recently that VentureBlog is doing this kind of thing via "terms of service." From a purely personal and nonlawyerly standpoint, terms of service strike me as a little off-putting and overbearing on a weblog as opposed to a Web site. But as a practical matter there's not much "as opposed to" about it, and I'll wager Venture blog isn't/won't be the only one to go this route, so I guess I'd better start thinking more sympathetically about the idea.
Guest post regarding our Group Annotation thread. Kevin Heller of TechLawAdvisor responds:
You asked whether group annotation of legal cases would be useful. I say let's find out. I've created a wiki at legal.jot.com . where blawgers and others can help annotate legal decisions. I think this would be much more useful than linking to a pdf file of the decision.
It's also pretty easy to do. First, go to any case page and click the drop down menu title "more actions..." and select Edit Page in WYSIWYG (I assume most everyone is familiar with this). From there you will have access to the text to edit and annotate using the MS word like toolbar.
In this episode, Denise and Tom begin to persuade me, but it's the notion of evolving toward open source law that I find convincing.
I have to admit that Tom and Denise are so darn reasonable and I seem, well, a little petty, almost as if I still hold some kind of grudge since the day the CC group amended the first set of licenses and pointed out the names of people who had suggested the changes and LEFT OUT A MENTION OF MY NAME. Fortunately, I don't let that kind of stuff bother me.
There's a comment on one of the posts in this thread from Karl-Friedricha Lenz, who has written as much and as well about the details of the CC licenses as anyone I know. He raises a great point - maybe now is a good time to consider simplifying the license language and making it a little easier to understand.
I'd also like to see a greater effort made to collect and maintain analysis and interpretative materials. I'd also like to see a stronger leadership role from the CC in letting us know how to enforce these licenses.
I was talking to Tom today about some other things and we discussed this issue a bit.
Tom asked, "Aren't we better off with some license than no license?" You can argue that not having a license allows you to retain as many of your copyright rights as possible and allows a user/publisher to claim as few rights as possible. However, you leave the scope of what someone else can do to later interpretation.
If you use a license (of any kind), you gain the benefit of (1) explicitly setting out the terms of the license and (2) as in the CC licenses, you can disclaim warranties, limit liability and cover other important matters. The second point is very important.
You'll probably agree that these two points make us want to have a license agreement rather than not have one.
That brings us to the second part of the analysis: CC license or custom license. Let's put aside for the moment that my fellow Between Lawyers generous offer of volunteering me to write a custom license in my free time in fact will move me to conclude that a CC license is the way to go.
Over time, disputes would be decreased because people would be working under standard agreements that gave them a known set of expectations and for which a body of interpretation would have grown up. The standardization would reduce the friction that custom (and often ill-matched and poorly drafted) contracts arguably place on transactions.
In a sense, then, we look to the 80/20 rule and say that we are better off with less than perfect contracts and smoother transactions with lower legal costs (with fewer disputes) than we are with contracts that attempt to provide us with perfect protection that cause more disputes and make transactions more difficult.
It's worth emphasizing that this is a radical approach. Yet, I'm coming to believe that it may be what is required in the Internet era.
In that light, the CC licenses represent a good example of this approach. If 14 million pages have CC licenses, then we start to get the benefits of standardization, common interpretation and a reduction in the friction of transactions.
Therefore, I think that it is important to see if we can use a CC license to help further this trend, even if I might quibble with the particulars of the language or find some of it largely impenetrable.
Now, the rest of us have to be a little careful with the reasonableness and low-key approaches of our litigators, Tom and Denise. In a real dispute, they'll both turn this language inside out and point out every bit of vagueness and inconsistency.
Here's an example:
Assume someone improperly uses my material in a "Collective Work" under the CC licenses. I want them to remove my material from the Collective Work. I look at the last sentence of Section 4(a) and it says:
"If You create a Collective Work, upon notice from any Licensor You must, to the extent practicable, remove from the Collective Work any reference to such Licensor or the Original Author, as requested."
Do they have to remove the material or just a reference to my name? Why would I want them to remove my name if the material is still in the Collective Work?
Do you think my easy-going litigator colleagues won't have a field day with that language if a dispute ever arises? Do you have any comfort about how a judge will interpret this language? Do you really think that the nice, easy-to-understand summary will carry the day?
On the other hand, it millions of people are using this license, I think it's more likely that we'll see a more reasonable interpretation than we might in a single contract between two parties.
In the case of the latest generation of the CC licenses, I think that we are past the 80/20 range and, for most authors, the license gets you most of what you want. With 14 million uses of the licenses, we might be able to lobby for clearer provisions.
What's most intriguing to me about the CC licenses (or, more accurately, the widespread adoption of them) is that we can use programming to ensure that material is used in accordance with the applicable license by incorporating the license restrictions into the material. A custom license probably would not offer that same opportunity. This will help everyone. I'd like to have the materials I want to use self-validate that I can use them in the way I want rather than try to figure that out for myself.
As I indicated yesterday, I expect to end up in favor of moving to a CC license. Like Denise, if we reach that decision, I lean toward the most restrictive of those licenses. In other words, I don't want others making money off my work without my permission or some form of revenue sharing; I don't want people using my materials without giving me credit (attribution); and I don't want people turning my material into something else without my permission. These are the premises of the CC license Denise suggested.
If, however, we were in a world of automatic transactions and payments, a license permitting commercial use upon automatic payments might be quite interesting.
Like others have noted, however, some aspects of this license still are not very clear, especially what the meaning of "non-commercial" is.
I think that unless we hear strong objections from Marty and Ernest, you'll be seeing a CC license on this blog in the very near future.
As I mentioned to Tom today, I've all but decided to put a CC license on my seminar materials and slides, so I've been leaning in this direction for a while. I just wish they'd clean up the language a bit.
Some follow up thoughts from me on the issue of whether we should adopt a Creative Commons license, and if so which one:
I find myself in Tom's camp rather than Dennis' on the issue of the clarity (or lack thereof) of the language included in the long/actual versions of the CC licenses. (Is this any surprise given that Tom and I are both litigators, and thus don't actually draft these sorts of things?) My take is the licenses get their essential messages and points across, and to the extent there is any ambiguity in their actual text, one of the first pieces of interpretive evidence is likely to be the short, "human readable" version. Dennis' concerns are well thought out and well taken, but I'm comforted by the fact that the initial and revised versions of the licenses have the benefit of considerable sage input, and, as Tom points out, all similarly situated CC licensors will be in the same boat on issues of interpretation, which seems like it can only help reasonable and sensible interpretations of the licenses to carry the day.
More troubling to me than the language are the implementation issues, but I think we can deal with those. Things any potential CC licensor needs to carefully consider are how to tag works (including whether to separately tag individual bits of work or apply one tag broadly), and how to most effectively include license information in any relatedmetadata (for us, the site's RSS feed). As long as these multiple moving parts convey a consistent message, as the rights holder I think you've done your job in communicating the license terms.
The only thing CC licensors (creators) and licensees (users) can do if third parties muddy things up (see Phil's Technorati example) is complain about it and seek better functionality if things are causing confusion, and compliance if license terms are being ignored or arguably violated. Things move quickly on the Web and lots of eyes are on Creative Commons. I'm optimistic that many of these glitches are inevitable growing pains that can and will be cooperatively addressed.
Dennis asks, "[I]f someone copies a post and uses it on a site that runs GoogleAds, would that be a commercial use and a violation of the license?" I think there's definitely the potential for violation of the noncommercial use licenses in any situation where the use has any kind of commercial context. However, in instances where the use meets a sufficient number of the fair use criteria, I think the fair use doctrine will likely control.
With three litigators and a trademark guy as the alternatives, Dennis, you'd definitely be drafting any kind of custom license. ;) Much as you're my hero in so many ways, and much as I have faith in your ability to draft something that is the epitome of clarity and effectiveness, I have a couple of reservations about going "off CC." For one thing, Corante uses RSS 2.0 to syndicate its blogs, and I don't know if (and doubt?) there is an RSS 2.0 module that would accomodate a custom license. So I don't know if our feed could effectively communicate our license information if we went custom. Also, see my comments above about the potential benefits of the collaborative input the CC licenses have and continue to receive, and of the influence of CC licensors as a group.
Tom's point about "needing a Creative Commons license to protect our content" needs some clarification. In my opinion our work here already has more protection under existing copyright law than we actually care about it having. A license lets us identify some reuses of our work that we think are just fine, and in fact welcome, while also specifying which copyright protections that otherwise apply by default we would like to retain. This helps us by encouraging others to discuss and build on our ideas, and helps those who would like to do so understand the parameters we've expressly approved.
I'd rather see Dennis further enlighten us about the mysteries of law, tech, and his inbox than become our Leonberger of licensing.
Okay, I'll wade in and offer the insurance defense lawyer's take on this whole CC business. Denise says we need a CC license to protect our content, while at the same time allowing it to be distributed as widely and effectively as possible. Dennis is not convinced; he believes the CC license is poorly worded and confusing. He does not say, however, that we don't need a license to protect our content (at least, I don't think he says that).
That's it? As the son of a mediator, I say we can get this settled and make it home in time for dinner. I don't think anybody disagrees we should have some sort of protections for the materials posted on this site -- after all, we expect to do great things here, right? That leaves us with two choices, as I see it: a CC license, or our own license (no doubt drafted by Dennis). I agree that certain portions of the full license are pretty dense, although I have to say the human-readable summary provides an easy-to-understand (if somewhat incomplete) description of what publishers can and cannot do. If the consensus is that language is unreasonably confusing, we need to either edit it or come up with our own license. Easy for me to say, I suppose, when the most complex documents I draft are settlement agreements and motions for summary judgment.
Should our uncertainty of how a publisher or court will interpret the license prevent us from obtaining a license at all? I don't think so. We won't be in any better or worse position than anybody else with a CC license -- we are all in the same boat from an interpretation standpoint, until some case law comes down that sheds light on what these provisions really mean. If the rest of you IP-types aren't comfortable with that, then Dennis, pull out your tablet PC and start drafting. Otherwise, I say let's go with the CC license.
So there's my vote, and my incredibly simplistic reasoning for it. I'll go back now to my torts, mental anguish, and soft tissue injuries.
I have some history on the the CC licenses, but I'd like to take a fresh look at them with the idea that we might try to apply one to this blog.
I suspect that I'll end up with agreeing with Denise on which Creative Commons license to apply to this blog (the attribution-noncommercial-no derivs license), but I actually read the license language this evening and it is hard slogging. I wonder how many people who apply the CC licenses actually read the underlying license language.
The CC licenses are also very hard to find on the CC website. A visit to the CC site and blog will make you sympathetic to the arguments of those who criticize the CC licenses as more of a marketing gimmick than a legal standard. I'd like to see more explanation of the licenses and discussion of current issues (e.g., the issues Marty Schwimmer raised about Bloglines) and less self-congratulatory material.
The summary of the license seems good, but, as someone who reviews lots of licenses, I find the actual license text to be really legalistic and hard to understand. There are a couple of sentences in there that I'm still not sure that I know what they mean.
On the other hand, I really like the strong, clear language in the CC's disclaimers of any liabilty that are prominently displayed at the top of the text of the actual license.
I've always liked the idea behind the CC licenses, but I've found the execution flawed. In fact, I was one of the people who complained about the warranty provisions in version 1.0 of the licenses. These provisions were changed to be more favorable to authors. I don't claim any credit for that, but I was pleased that CC looked closely at the issues and made some good changes.
In the earlier versions, I thought that the licenses favored publishers over authors. Now, I feel that they are much better for authors, but publishers will now probably struggle with the dense language of the license grants.
I hate the idea of applying a license when it contains language that I don't fully understand. In the case of the CC licenses, we can't change or clarify the language. I wish I could find more discussion of what is intended by some of the language in the license. For example, in Section 2, there's a notion of no intention to limit a limitation that is really difficult to understand. I don't think you'll find that manner of construction recommended in Ken Adam's excellent A Manual of Style for Contract Drafting. The examples given on the CC website are the least complicated examples you'll run into.
I'd like to encourage more people to read the actual language of the license. I'd love to find out that most people think that this license language is simple and clear and that I'm seeing issues that aren't really there, but I suspect that many others will find the language pretty opaque.
By way of comparison, I like the Open Source licenses because (1) they are not dense with legalese and (2) the Open Source community encourages and keeps up a lot of discussion about the interpretation questions arising in the licenses. The CC website, however, does look really nice.
I'm curious about what others think. As I said, I like the idea behind the CC licenses. If we apply one, I agree with Denise's choice. However, I'm reluctant to apply a license to this blog with provisions that are not very clear. Admittedly, as lawyers, we can easily (and cheaply) write our own custom license (although I suspect that task would fall to me - another reason the CC license has a certain appeal to me).
I couldn't find any examples of how the license might be interpreted in various circumstances. For example, if someone copies a post and uses it on a site that runs GoogleAds, would that be a commercial use and a violation of the license?
More importantly, if someone who wants to republish or reuse our content cannot easily understand what they can do under the license we apply, how does the CC license really help us?
I must admit that I'm not convinced that going the CC route is something that we need to do. However, if we can apply one and get a mention on CC blog, that might be good for enhancing our traffic and search engine rankings. That's definitely something to consider.
I'll come out of the gate as someone who favors applying a Creative Commons license to this weblog. As I see it, part of the reason we're writing this is to distribute the information as widely and effectively as possible, without completely giving away the farm as to our copyrights. As long as reuse of our work is reasonable and within parameters we can all live with, everyone benefits. The particular license I like for our purposes is the attribution-noncommercial-no derivs flavor. It tells people we want attribution, and it essentially tells them to get our permission before using our work commercially and/or in a derivative work. It's the closest to full copyright protection of the text-appropriate CC licenses, and I think it strikes a good balance conceptually.
It's once you leave the conceptual realm and enter the realm of execution that things get messy. Shelley Powers and Phil Ringnalda have pointed to some greatexamplesrecently of how efforts to locate CC licensed works or communicate the applicable CC license can be imprecise, inaccurate, or confusing. There's no doubt that it's early on in the implementation of tools that are intended to either convey the license the rightsholder wants applied to a particular work, or find works that are available for a desired use. (On the latter point, my take is ourmedia and the Internet Archive are probably more accurate at this point than the Yahoo! CC search.) As Shelley's post illustrates, the process of communicating whether and how a work is licensed is still being hammered out and may be for some time. (Example: Atom 1.0 includes the ability to specify different copyright treatment at the item level in a feed, while other means of syndication apparently don't.) There's also no doubt there are and will continue to be those whose attitude toward the terms of the actual license — or in the case of unlicensed works, the effect of the copyright — is more cavalier than it should be.
Is any of this a reason for us to forego a CC license for Between Lawyers? I don't think so. There is much we can do to help communicate our intentions clearly. We can make sure any license we choose is referenced visually and in our feed. And for our purposes, I don't see us needing or wanting to specify different licenses for different aspects of our work here, but if the need should arise it shouldn't be too difficult to clearly spell out our intentions. (For others who make lots of different media types available from one source, this might be a much bigger concern.) The implementation and communication of licenses online is an area that will continue to develop, and the confusion we see today might well find its way into some legal disputes. But I don't think that's a reason to throw the baby out with the bath water. Instead, if you think it's in your interest to adopt a license (as I do for us here), it's something to to be aware of and take reasonable steps to address.
An argument for the Creative Common license is that many disputes over utilization of intellectual property can be alleviated through the use of tagging content with code such as the CC license. If AFP could use code to prevent Google from scraping its headlines, then no lawsuit.
How are the CC license and other coding solutions doing in developing their potential? If bad guys aren't going to program their software to recognize such tags, then is there a point to it?
All right Marty, so maybe no one is annotating circuit court decisions, but you can get your U.S. Code, annotated at GovTrack.us -- just sign up to follow a particular piece of legislation pending in Congress, and you'll receive updates whenever the House or Senate takes action, or when anybody in the blogosphere mentions the legislation by name. Can court opinions be far behind?
By the way, I happen to agree with the Scobleizer that while the NYT Annotated site is pretty cool, Memeorandum is a better annotated news site -- it pulls comments from more than one news source, and it's a heckuva lot easier to read.
Thankfully, the guardians of the gates of law professor hiring are busily at work keeping people like the lawyer bloggers well away from teaching any law students.
Heck, one of the reasons we started "Between Lawyers" was because we had to research and answer questions on new legal issues long before any academic search was available. I'm sorry, but law review articles that come out a year after the fact don't make a lot of sense in today's world, but it is quaint to read about people who think that they are the most important factor in hiring law professors.
I'm curious about how innovation takes place in that environment.
Following up on yesterday's Bag and Baggage podcast (and my earlier post here about del.icio.us), I've blogged from time to time before about electronic discovery and weblogs. Folksonomies have me thinking along the same lines. While it's not a big leap to imagine a lawyer combing through an opposing party's weblog archives for statements that might prove useful in litigation, it's less obvious but no less true that one's information tagging activities could also be examined with that goal in mind.
Say, for example, you have parties arguing about the meaning of terms used in a contract. Assuming there's enough ambiguity in the language that the court agrees to consider parol evidence, the lawyers and the court might be very interested in how the parties have treated the terms in question when categorizing information online. Sure, it's a bit of a stretch and/or a nonissue today because these tools are not all that widespread. Twenty years ago, the same thing was true of hard drives. I'm curious whether my coauthors agree — or think maybe I've been smoking a few too many tags.
One of the things that Law School is supposed to teach you is legal reasoning. And legal reasoning is supposed to be based on logical reasoning. If you would like to acquire better reasoning skills, but don't want to spend $60,000 just buy Crimes Against Logic by Jamie Whyte. Oh yes, and be sure to read it too.
A few weeks ago Steve Rubel asked his readers to pitch.him del.icio.usly. I love this idea, not just because it helps deal with email glut, but because it has the potential to work like a public "trackforward" process for your weblog. It completes the temporal context picture. Trackbacks and comments handle the past ("Here's what I think about what you wrote"), but a page full of del.icio.us tagged material points to the future ("Here's what I think you should write, or hope you will"). And it's there for the world to read, so if the weblog authors don't or can't get around to discussing your issue, at least it's out there and contextually tied to the blog in some way. The potential for link spam is big I guess, but what the hey, let's see how it goes. Ping us at the betweenlawyers tag in del.icio.us, and as long as the page remains reasonably free of poker and Prevacid we'll check it regularly. Fellow 'tweeners (and anyone else who's interested): here's the feed.
Tom asked me the other day if I could make a form or two for technology use policies available.
The short answer is "yes." The long answer is that it might take me a little while to do that and I think it is important to help people understand that there are dangers in using forms.
As a down payment, I've placed a PDF version (<100kb) of my handout materials for the recent presentation called "The Annotated Technology Use Policy)" that Blair Janis and I gave yesterday at ABA TECHSHOW 2005. It includes:
Ten Tips for Improving Your Technology Use Policies
Seven Dangers in Using "Standard" Forms
Hot Topics in Technology Use Policies for 2005 A Checklist
Sample Technology Use Policy - Internet and Email
Resources for Learning About Technology Use Policy Issues
I'll put those materials into HTML next week for those of you who don't like PDF files.
I am curious whether people might be interested in Between Lawyers creating a repository for sample technology use policies so that people will have a single place to go to find a variety of forms to compare approaches, see how others handle issues, what is typically covered and the like.
We'd be happy to take that project on if there is interest in the idea.
A crazy person gave me a pamphlet one day (aside: I think Hoefler Frere-Jones should design a font called 'crazy person pamphlet' to capture the effect of manual typewritten words with no margins, repeated photo-copying and bad paper).
Most of the pamphlet's advice has been mooted by the fall of the Soviet Union but there was one thing worth remembering:
"It's the absence of small courtesies in everyday life that creates an atmosphere where evil can thrive. Say thank you to your bus driver and cashier."
As Instapundit would say, Indeed.
A colleague maintains a blog. Two months ago a law firm copied one of his case summaries word for word. He contacted them and they apologized and retracted.
Today he emails me again. Another blog has copied a different case summary of his, word for word.
Case summaries have a lot of short declarative unprotectable sentences, "the plaintiff say 'moo', the defendant said 'baaa,' the Court then issued findings of fact."
However they sometimes also (as in the case here), contain enough idiosyncratic phrases that the author can say "A poor thing but mine own."
Forget about copyright. Think of it in terms of manners. Do not copy word for word without credit. Show respect for the small things of others.
It is the absence of small courtesies in everyday life that creates an environment where evil can thrive.