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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

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

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

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
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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.
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May 21, 2005

Sincerest Form Of Birdery

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Posted by Denise Howell

Shelley Powers has a new theme that rings a bit familiar. What do you think of her interpretation of the Creative Commons license we applied to Between Lawyers? If she's wrong, does she have a good parody argument? If we and/or Corante wanted to make sure the Web does not suddenly become a uniform, 3-column, red-white-and-gray place, would some minor adjustments to the notice announcing the BL CC license do the trick?

Birdfood for thought.

[Update:] Though Shelley makes some excellent points and she and I have been having fun, I had to go and get a little lecture-y about the risks of this kind of thing. And you should read the whole comment thread.

Comments (4) + TrackBacks (0) | Category: Copyright | Creative Commons


1. Phil Ringnalda on May 22, 2005 1:09 AM writes...

I have to agree with your assessment of the situation in Shelley's comments.

So, please, if you will only listen to me once in this lifetime, *please* consider whether you have any ethical option other than to remove your CC license.

As Shell said, CC has exactly one purpose, one point: to say "here, you can take this without asking, I'll tell you just what you can have and how you can use it." Now, "my" IP lawyer says that it says "here, you can hire lawyer to advise you as to what you can use and how." That makes it pointless: a competant lawyer should say "you want to use some of that, ask them for permission, anything else is too risky."

You've now said that some of the stuff here can be used freely without asking, and using some of the stuff here will make you Hylton's pool boy, and all you've offered to tell the difference is "all material included in this weblog." If you can't tell me what I can and can't use, what's the point?

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2. Denise Howell on May 22, 2005 2:18 AM writes...

Shelley's done a good deed by illustrating the issue of content v. code in the CC context. I'm going to talk with Hylton, I'm not sure he's seen any of this discussion yet. My technical proficiencies (and server access?) don't permit me to know one way or the other whether specific copyright reservations appear in our site's underlying templates, CSS, and other digital wizardry. I'm also not Corante's lawyer, and haven't done a bit of research on the issue of whether including such language is even necessary. Hylton gives his authors great latitude about whether to CC license the particular blogs, and which license to apply. I want to be sure he's aware of the issue, that he gives some thought to what copyright protections should apply on the "code" side, and that he gets some good advice about whether some different implementation is in order so that whatever protections he might want to retain are preserved notwithstanding CC licenses on the individual Corante blogs.

So no, I don't think any ethical considerations compel abandoning our CC license. But it's been our hope all along to implement it in a way that's clear and unambiguous, and we'll do our best to get to the bottom of the issue (and keep you and Shelley employed somewhere other than Hylton's back yard).

By the way, I hope to have the opportunity to listen to you many more times than just once in this lifetime.

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3. yclipse on May 22, 2005 6:42 AM writes...

I have two things which may rise to the level of thoughts this early morning:

1. The layout and color scheme is far from being a quasi-trademark for either BL or Corante.
2. She started right out by acknowledging that she adopted the presentation scheme and even thanking you for it.

In the spirit of CC, perhaps the best response would be "you're welcome" and a request that (if she continued to use it, which she has not) she occasionally acknowledge the source. She likely would.

Perhaps the biggest reason that this didn't lead to a T&T (thunder and threaten) letter: it's not all that important. But her F&F (fiction and fraud) comment is a good one.

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4. Erik on May 23, 2005 3:02 PM writes...

The terms of use defines "Proprietary Rights", wouldn't materials apply to the CSS? (

Unless all of Corante's site is licensed under CC then I would think standard copyright rules would apply. I would think a weblog's license would be subordinate to the overall sites on items that cross weblog boundaries like the CSS theme.

If CC did apply (under the BL CC choice), attribution was given in a non-commercial use, and
the copied CSS was not modified would that be complying with the license? What if another CSS was created and used to override specific settings, would that be a derivative?

my thoughts,
*disclaimer* I am a future lawyer and 1L so don't abuse my comments too bad.

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