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 dhowell@gmail.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 tmighell@swbell.net.
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 marty@schwimmerlegal.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 esvenson@gmail.com.
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.
However, I wanted to emphasize Tom and I's article in this issue called "MP3s, Podcasts and Internet Audio Resources for Lawyers," which points to a variety of great resources for lawyers interested in podcasting, either as consumers or producers. We tried to make it a handy starting point for lawyers and others wanting to find good entry points into the world of podcasting.
There is an allusion in the article to future Between Lawyers podcasts and I can confirm that we are talking about that internally and externally. I'd welcome hearing in the comments your thoughts and ideas about a Between Lawyers podcast series, or even the possibility of multiple types of Between Lawyers podcasts.
In the meantime, check out some of the podcast links in Tom and I's article and visit Bag and Baggage for links to some new podcasts from Denise.
This blog account of jury duty begins with this passage: "Oftentimes people will watch news coverage of trials and react with bewilderment when the defendant is found not guilty. They ask 'How could any jury possibly find that person innocent? How stupid can these people be?' When you actually take part in the process you come to realize how complicated finding someone guilty actually is, and you start to understand some of what may have been going on in the deliberations of those newsworthy trials that led the jury not to convict. The fact of the matter is you don’t find someone innocent: you have to find someone guilty..."
So here is this important opinion, freshly squeezed from the High Court this morning. And already we've got, not one, but two or more discussion threads going between some major legal/tech eagles. I realize these discussions do not conform to the Bluebook Uniform System of Citation and haven't been sub-and-cited (see duty #3) by bookish law students, but this is some pretty amazing stuff. And five years ago the possibilities of this sort of technology wasn't more than a gleam in some techie's eyes.
I wonder what the future holds for P2P file sharing? I don't know, but I doubt anyone else does either. The Supreme Court opinion will have a strong short-term influence. But the fact is that information is hard to contain, and I think that routing around obstacles is now built into our information-matrix. I hate to say that the Supreme Court opinion is a mere obstacle, but somewhere out there is a techie or two that will see it that way. That much, I do know.
For cutting edge and up to the minute discussion and analysis of the today's Grokster decision, check out the Wall Street Journal's Grokster Roundtable, which includes Denise Howell of Between Lawyers among its imposing list of expert panelists.
The other central issue permeating much of this discussion here at Gnomedex is how the law will deal with the commonplace uses of mass produced entertainment made possible by technology. (e.g., incorporating music, video, etc. into other works; time-and-place shifting entertainment you have purchased.) Will there be a legal solution? A commercial one? Both? Neither? Lots of opinions in all directions.
I'm at Gnomedex, taking in the comprehensive schedule that focuses on what's new and important in Web communication and technology, and what's on the horizon. Here are what I perceive to be the critical legal issues swirling around the talks so far:
Feeds and copyright. The notion of whether an implied license or waiver exists by virtue of the publication of a feed is going to get litigated, somewhere, somehow. A wrinkle I haven't seen discussed much yet: the fact that mom and pop users posting text or other material to the Web using today's ever more sophisticated and syndication-aware authoring tools might have no idea they are, in addition to creating a Web page, syndicating their material. In order for a court to conclude that a publisher has relinquished otherwise applicable copyrights, I think at minimum someone would have to show that an express intent to authorize broad re-use was present. There's thus an education gap on the user side that is poised to either work against those who urge an implied license or waiver, or against the tool providers. (I.e., "What? No one told me there might be copyright ramifications of publishing a feed.")
Someone needs to register and populate noninfringingbittorent.org.
I'm struggling with how the legal panel is going to compete with all new product previews and launches here. It's already past close of business for the week on the east coast, so maybe the Pacific time zone can come up with some radical new legal framework before day's end? Let me know!
I mentioned the other day that I was interested in reading fresh perspectives on the issue of corporate blogging policies that reflected the views of actual bloggers.
One of my favorite bloggers, Dave Pollard, provides a great example of what I would like to see more of in his excellent and thoughtful post called "What Should Your Corporate Policy Be On Blogs?" I highly recommend it as a fresh take on the corporate blogging discussion.
If you've followed the comments, you know that I've now had the chance to download and read the Covington & Burling article mentioned in that post. I've been thinking about the next-to-last paragraph in that article that says:
"Clearly, not every employee blog will reflect poorly on an employer or disclose sensitive information. On the contrary, blogging employees may be among the most creative, entrepreneurial and technologically savvy members of an organization, and may serve as powerful advocates for the companies they work for. Given that, and in light of the risks in banning off-site blogging, the better approach may be to balance the positive aspects of the blog with appropriate safeguards against the greatest risks."
I like this paragraph and wish that it would have led the article, but I want to focus on a couple of points raised by this paragraph.
Sentence #1 reflects the most common assumptions about employees who blog. If you make those assumptions, your blog policy will have a certain kind of substance and tone, the kind that lawyers excel at drafting.
Consider sentence #2, which reflects my general assumption about bloggers. Assume for a moment that your employees who blog are the types of employees described in sentence #2. Now aks yourself the following three questions:
1. How would the tone and substance of your blogging policy change?
2. How will those employees respond to a policy that is written based on the assumptions in sentence #1 of that paragraph in the article?
3. How wise is it to adopt some kind of "standard" or "one size fits all" policy to cover blogging?
Perhaps the commenters in question have read Cluetrain and might be have focused on Cluetrain #6 - "The Internet is enabling conversations among human beings that were simply not possible in the era of mass media," although perhaps not in the way the authors intended.
At this moment, of the five most recent comments to this blog, two are about poker, and three are about penis enlargement. What precisely did the Cluetrain Manifesto say about conversations?
Between Lawyers's own Denise Howell was named as one of the 50 honorable mentions to the new AO/Technorati Open Media 100 list.
As Denise notes in her comments about this on her blog, this list is chock full with people who greatly influenced my blogging, my understanding of the new Internet world and my approach and thinking about many topics. And Denise is definitely one of the people who has done so.
Great work, Denise, and well-deserved recognition. I hope that Ernie or Matt at least bought you lunch today. Take a day or two off from Between Lawyers and celebrate. We should do a BL podcast just so we can do a little whooting about this.
Memo to Reed Smith management committee - it may be time for a bonus for Denise.
I've looked all over the Covington & Burling website and can't find that the firm has a blog. Would someone help me out by directing me to the URL of the C & B blog? I'm sure that I'm just overlooking it.
Anyone else wonder about the credibility of advice on blogging policies from law firms that do not have blogs? I'm not being critical - I just raise the question.
I haven't had the chance to read the C & B article yet, because it locked up my browser when I tried to download it. Perhaps that makes me a bit irritable, but I still have a funny feeling that the article will take a rather negative view of blogging and highlight lots of dangers of blogging that can be solved only by using the services of a firm like C & B.
Certainly, law firms have every right to take these marketing approaches, and I'm not being critical, but I personally am more interested in the conclusions and recommendations of lawyers who have experience with their own blogs than those who seem to be jumping on a fad of creating a blogging policy practice area.
I'll reserve judgment on the C & B article until I am able to read it.
I never miss an opportunity to use the word Champerty in a sentence. Via Overlawyered, a story on how casino operators are funding litigation by Shinnecock Indians to claim land in the Hamptons.
Here's a little tale of ketchup, pants, and email to add to your collection of lawyer emails and voicemails that have gone feral and taken on a life of their own. (Via Boing Boing)
Any person in a business or other organization who cares about the entity's financial and technological well being would be better off for listening to Dan Bricklin's Software Licensing Podcast.
ABA Journal eReport, Is a Lawyer's Blog an Ad?: "'The rules always lag behind the technology,' [J. David Boswell, chair of the Kentucky Attorneys' Advertising Commission] says."
Marty and I talked about this question on the phone a few weeks ago. I’m intrigued by the addition of the search and OPML tools to the mix.
Let’s state a few assumptions, so that people do not misinterpret what I’m saying.
A. I’m discussing the feasibility of this approach, not whether it is the “best” universal approach.
B. We all accept that dedicated case management tools, hosted services (e.g., Sharepoint Services) and other options offer better features than what Marty has described and a wide variety of benefits.
C. Marty’s approach, to state the obvious, makes the most sense for lawyers who are already blogging.
D. The best case management tool is the one that actually gets used.
E. You must consider any proposed solution by comparing it to what you are doing now. Yeah, it might not do X, Y and Z, but you might not even be doing A, B and C with what you are using now, let alone X, Y or Z. Let’s not let the best be the enemy of the good.
Here are my thoughts:
1. While Marty might initially seem like the person whose only tool is a hammer and to whom all problems look like nails, the truth is that blogs, RSS and blogging tools do seem to have the flexibility to do almost anything that you want.
2. I see that the idea can work for low-volume practices, but I wonder whether it scales up to a large number of matters.
3. Although the idea of a separate blog for each matter at first seems appealing, I can assure you that writing for several blogs is difficult to manage. I lean toward having one blog and treating matters as separate categories, rather than creating separate blogs for each matter. This may be just my personal preference. In either case, the issue I raised in #2 will come into play.
4. The use of (and improvement of) blog authoring tools (BlogJet, ecto, SharpMT) seems to be an essential piece of this system. It must be easy to link to files, create and use categories, and author posts, and while Movable Type, for example, isn’t bad, it’s not good for managing multiple blogs and its authoring tools can definitely be improved.
5. I think that you would want to hyperlink directly to the underlying files rather than use the desktop search tools. That seems simpler and easier than using the desktop search tools to create saved search folders or in other ways. I’d then use the desktop search tools as a backup search feature to the main system. The use of hyperlinks to files should work OK, but raises the issue of what happens when you create new versions or have links to obsolete files.
6. Of course, it’s difficult to comment on Dave Winer’s OPML outliner tool before it appears, but it’s likely that, given Dave’s place in the history of blogging and RSS, the tool will have some beneficial impact on this type of system. I just cannot comment on what it will be. Perhaps Dave will let us be beta testers.
7. The system relies on the lawyer actually (1) using it and (2) using it correctly and on a regular basis. As we all know, these are HUGE assumptions. However, for bloggers, the blog interface should be a very comfortable one and bodes well for the actual use of the system.
8. I’m intrigued by the use of this approach, especially with RSS, for project and workflow management. E.g., I might assign a project to someone in the blog and they would get the assignment via RSS in a newsreader. The comment feature might also develop into something useful in this regard.
9. As someone commented, this system also might allow for certain posts (items) to flow out to clients as RSS feeds. You also have other potential benefits from using RSS and XML that we don’t need to discuss here.
10. The use of categories, especially multiple categories, might help you establish simple and useful knowledge management, forms, training or other repositories. Similarly, using scripts or aggregation tools, you might be able to “flow” new information into your case management blog.
11. Although I think that there is still much work to be done on search tools for blogs, it does seem possible to use the desktop search tools focused directly on your blog dataset to enhance or replace the search tools in blogging apps.
12. This approach seems clunky to me when compared to the other case management tools that are out there, BUT when you consider assumption D (the best tool is the one that you actually will use), this approach becomes very interesting for people familiar with blogging or who might appreciate the simple interface and methods that blogging tools give you. As an aside, my sense is that this blog-based approach does not offer you a platform (at least now) to incorporate and integrate document assembly and other automation tools, and may work best where a lawyer has not done a lot of automation and integration to this point.
I find myself feeling much more positive about this idea than I did when Marty and I originally spoke about it. There are definitely some hurdles with this approach, but they don’t seem to be insurmountable. And this is the key point, it just might work for some lawyers and make their lives much easier than they are now. In other words, how would this approach work as compared to what you are doing now?
I hope the conversation on this approach, and variations on it, continues. Maybe we can come up with a new tool or give the makers of existing case management programs some ideas for making their products more useful to lawyers.
Commenting on a post at my other blog about the session on "The Law Now" that will be part of next week's Gnomedex, Enrico Schaeffer writes:
The thought that new business models in the law can thrive is starting to take hold. I have launched a firm, branded, marketed and implemented around the concepts of technology and service. We use flat fee, project-based and shared risk billing models which clients love. Our blog generates several new clients per month and will certainly generate six figures in revenue this year. Within 4 months, we have grown from one attorney and one secretary to include one additional office staff person, three virtual law clerks and one virtual paralegal. We have already grown out of our space.
I attribute our success to our alternative business model. How hard is it to distinguish yourself from a bunch of stuffed suits who can't see beyond hourly billing?
Total volume of music I own: 500 albums, all formats?
Last CD purchased: actual CD? 'Here Come The ABCs' by They Might Be Giants. Downloaded CD is 'Guero' by Beck.
Song playing now: 'Dear Prudence' by Siouxsie and the Banshees.
5 special songs: Hmm, most played songs these days are 'Wonderwall' by Oasis, 'Hey Ya' by Outkast, 'Jane Says' by Jane's Addiction, 'Close to Me' by The Cure.
Over the years? 'Skin I'm In' by The Clash, 'Idiot Wind' by Dylan, 'I Don't Want To Go To Chelsea' by Elvis Costello, 'Hey Bulldog' by The Beatles, 'Happy Together' by The Turtles, 'Air That I Breathe' by The Mavericks, 'Personal Jesus' by Johnny Cash, and of course, 'Abaddon's Bolero' by ELP.
And let's not forget what Yes teaches us:
'Mountains come out of the sky and they stand there.'
Okay, I pass the baton to anyone who hasn't had the baton passed to them yet.
Marty asks about real estate prices for lawyers. He categorizes this post in the virtual lawyers group. That prompted me to think about 'virtual lawyering,' which I do fairly often because I think that it's an inevitable trend for many lawyers. And I think it will be a client-driven phenomenon.
Here's my take on the overall trend in what clients want (or will increasingly will want):
1) a really good attorney
2) who is responsive and able to do what's got to be done and does it efficiently and cost-effectively
3) which in litigation means (a) knowing the tendencies and preferences of the judge, along with the 'unwritten rules of the road' applicable to the court where the case is pending; (b) being able to easily file things in that court and serve counsel, and; (c) being able to manage the documents and logistics of litigation.
4) Only sub-part a of #3 above requires local presence, and you can get that by hiring a local attorney to help out. Sub-part b is going to be increasingly irrelevant as more courts move to e-filling, which they inevitably will. Sub-part c is already something that does not depend on physical location.
5) Since the savvy client will recognize that 'presence' is a small (but nevertheless important) part of the equation (one that can be achieved by the aforementioned local-counsel-hiring trick) they will not care so much where their lead litigation attorney is EXCEPT that
6) they will (if they are savvy) recognize that paying for an attorney to operate from Class A office space is a cost-burden that often runs counter to their economic interest (kind of like an attorney paying for a full-time secretary to be available in case he/she needs stuff typed. Hey, why not hire Cybersecretaries, who are available basically 24/7 and you only have to pay for that service when you use it?)
In short, office space is going to always matter and be used by many attorneys, but attorneys who do need office space are going to likely need less of it. And they are less likely to need it in the prime locations. And some attorneys will figure out how to make get by quite nicely without much space at all.
[Music starts and childish Disney-like singing begins: 'It's a Cyberworld after all...']
Law Firm fails to prove it sent bills to client (and failed to provide updated retainer agreements and failed to get consent for rate increases). Via NY Lawyer.
Dennis, Dennis, Dennis. There you go again, changing the rules. Where in your first post did you say "coolest" gadget? You said "best gadget for lawyers," and "best bang for the buck." Which clearly points to the Treo. Now suddenly we're talking fun and cool. My thought about the iPod is similar to yours about the Treo -- to me, it's wholly "fun"-related. I'd never use it for work. I'd rather use a 1GB flash drive to hold my work files than an iPod.
Treos and Blackberries – YA-A-A-AWN. The question was what was a "cool" gadget.
My criteria would be that if I won it, I would at least say "YES!!!" If I won a Blackberry or Treo, I'd be wondering whether I had to get new phone service, what support issues I'd run into, what out-of-pocket costs I'd have and the like. If I were at a firm that had an IT department, I'd be wondering whether they would even let me use it. I confess that I'd probably give one of those away if I won one.
Admittedly, part of my reaction is because they do not fit the way I work today. In today's WiFi word, I'd rather have a notebook or Tablet PC to connect to the internet and bring my full arsenal of computer power and programs to bear, and then focus on a gadget that is, well, cool. Another part of my reaction is that the Treo is a gadget that seems to be wholly work-related. Where's the fun?
I'd rather get one of those high-powered green laser pointers or a 1-gigabyte USB flash drive than a Treo. Tom, I think you decided not to mention the Treo to me on the phone because you knew that I'd burst out laughing.
Ernie Miller has kicked off an interesting discussion on whether the DMCA's notice-and-takedown provisions are so intrinsically messed up they should be avoided altogether.
C'Mon, Dennis -- an iPod? Sure, it satisfies the "cool" factor of a gadget -- who wouldn't want an iPod? But if I'm giving away a gadget in a prize drawing for lawyers, the answer is obvious -- the Treo. (I knew this the moment you asked me the question on the phone - I just didn't want to discourage you from posting due to the obvious rightness of my answer...:-) )
Sure, with an iPod you can listen to podcasts, store and view pictures, and even use it as a backup system for your files, but my guess is most lawyers would use an iPod simply to listen to music if they got one. A Treo, on the other hand, provides real practical value for the lawyer, PLUS it has the "wow" factor of a great gadget. Phone, e-mail, and you can listen to music or podcasts on it too, if you want.
Someone asked me the other day “what is the best gadget for lawyers?” In context, that meant “If we are giving a gadget in a prize drawing for lawyers, what gadget would give us the most bang for our buck with the audience?”
My answer was an iPod - I couldn’t even think of something that would be in second place.
I spoke with Tom on the phone and mentioned the question. He thought that there might be other answers, but none came immediately to mind for him.
The assumption in the question is that the gadget must have universal appeal to lawyers and, of course, that something like a Tablet PC is not a “gadget.”
Am I right? Am I wrong? What would your answer be: iPod or something else?
As we’ve mentioned, Shelley “Burningbird” Powers raised a number of excellent issues about the Creative Commons licenses and their interpretations. As I’ve mentioned on several occasions, it is easy to draw the conclusion that the CC licenses are more of a marketing effort for CC than a pioneering legal effort because the CC group tends to stay silent about practical questions involving the CC licenses while running victory laps every time a celebrity adopts a CC license or the number of licenses reaches another milestone.
Shelley, like me, lives in St. Louis, and we both have that Missouri “Show me” attitude toward things. However, I was surprised that the discussion Shelley initiated a while back and the conversation we at Between Lawyers had about applying a CC license drew nary a notice from the CC group.
Shelly’s latest effort, called "What We Hear" did raise the CC people from their slumber and I highly recommend Shelley’s post and the comments to it as a great resource on some of the practical issues involved in the CC licenses.
I think that Shelley by far has the best of the argument. As I mentioned when Between Lawyers decided to adopt a CC license, there is a disconnect between the way the CC licenses are presented and the actual language of the licenses. It is important to realize that the licenses tend to favor publishers and re-users rather than authors. That’s OK, but it’s not clear that everyone who applies these licenses understands that they do have legal consequences and that the licenses are more than a badge showing that you are a member of the CC club.
That said, there are also legal consequences of not having a CC or other kind of license. Those consequences might be OK with you, or they might not. For example, I prefer not to have a CC license on my personal blog. The CC licenses do not work for what I intend there and I prefer to retain as many rights as possible.
As Shelley points out, if you post a graphic showing use and non-use of CC licenses and suggest that the non-using world "is yet to be liberated," it raises some expectations about what's in the licenses, the benefits of them and the type of help you are likely to get from the CC in the case of disputes. As in all things, it's best to read the licenses carefully rather than to assume what they say from descriptions and summaries.
Shelley and others have asked us why Between Lawyers does not remove the CC license from our blog, especially in light of the lack of response from the CC group to issues we raised. That’s a fair question. The answer is this: we wanted to discuss the CC licenses, decide whether to apply one, apply it and report on our experiences – good and bad. That is the essence of our public CC experiment. If we document our experience, it will help others make sound decisions about the CC licenses.
Of the five of us, I am the one most likely to want to yank the CC license, but I’m committed to the experiment. I’m also encouraged that CC spokespeople are providing comments on Shelley’s blog.
As we’ve said, there are substantial benefits to the Internet community through standardization on a limited number of content licenses. CC is a laudable experiment in that regard, but CC also has some responsibility to spend some time helping licensees understand the practical impact of the licenses and determine how to treat specific issues that arise. If they do not do so, they need to "show me" how the CC licenses "liberate" me.
Shelley’s efforts have contributed greatly to the public good and I hope that the CC group answers her call. Even better, it'd be good if this leads to a larger discussion of a wider set of issues involving these topics.
SF Gate has a good article today on Writing the codes on blogs: "Jeff Sandquist, a Microsoft manager, said blogging has become so commonplace at the Redmond, Wash., firm that employees conversing about specific topics typically ask each other: 'Are you planning on blogging that?'"
I'm looking for office space here. I'm interested in what rates for legal space are across the country (and world) for (1) class A downtown; (2) class C downtown; (3) Class A exurban (as in office park).
Around here (Westchester), Class A exurban seems to be about $29/sf, across the border in Fairfield County, about $31/sf.
I've enjoyed reading the discussion here and elsewhere this week about the uncertain and unpredictable nature of copyright law today and whether and why it matters. (Some links aggregated here.) To answer Marty's earlier question to Dennis, the reason I worry about this stuff is to me it's anotherexample of a problem we've historically created and relatively recently identified, but haven't solved and now threaten to foist upon our kids and grandkids.
Copyright law is like an aging house. Though it may still serve its central purpose of providing a roof overhead for its owners, its infrastructure and plumbing have reached the end of their useful lives, and need to be updated if the whole structure is to remain sound for decades to come. The areas most desperately in need of renovation are:
The scope of copyright. What does and does not need to be protected in today's day and age, and when should protection attach?
The definition of infringement. Where should the focus be, e.g., on copying, or as Ernie Miller suggests, distribution? Certain forms of copying and distribution deserve to be treated differently than others from a policy standpoint, and they should be definitively carved out of the definition.
The requirement of harm. In cases where an activity is technically infringing but actually confers economic benefits on the rights holder and cultural benefits on society, there should be more roadblocks to a legal recovery than are in place today.
How do we know the current copyright structure really needs this remodel? Dennis' post is illustrative, and one could devote many hours (indeed, manyalreadyhave and regularly do) to chronicling similar examples. The cornerstones of "thievery" and "piracy" have been eroded by technology and utility, and by the old fair use standbys of news, commentary, art, education, and science. When your child takes something from a store, you explain why that was wrong and take her back to apologize and return it. When she mods her Xbox so she can back up her games to its hard drive and improve its performance, a similar trip to Redmond is the last thing on your mind. You're too busy considering her prospects and potential.
Who are the general and sub-contractors of this remodel? We all are. Participatory journalism gets a good deal of attention, but with the kind of unprecedented, unmediated, and distributed influence on the lawmaking process becoming possible today, "participatory law" is just as important, if not more so. Conversations like this one can become part of the analysis, and so can ideas generated around Creative Commons, collective licensing, and collaborative editing of scholarly texts. Keep hacking and hammering folks, and just maybe our children will inherit fewer constraints and uncertainties, and a better world.
I frequently give seminars on e-mail management, and one of the mantras I try to hammer home is this: unsubscribing from spam doesn't work. Well, that's not quite true; most reputable vendors will honor your Unsubscribe request, and remove you from their lists. But if you request a spammer to remove your address from its list, you can find yourself the recipient of an even greater amount of spam -- often the spammers will take your Unsub as proof of a valid e-mail address, which increases its value for sale to other spammers. The problem: how to tell the reputable vendors from the spammers?
Here's one way: try Lashback, a company that claims to be able to safely unsubscribe you from spam. Just install the toolbar (Basic is free, Advanced is $29.95), and click a button when you want to unsubscribe. Lashback checks its database -- if it's a reputable vendor, it submits an Unsub request, and you're off the list. If it's a known violator of Unsub requests, it essentially does nothing.
So at best it's a half-solution to the problem of unsubscribing -- it identifies spammers from whom you may safely unsubscribe, but it does nothing to eliminate the spam you receive from other spammers. But half a solution may be better than none at all.
I agree with Dennis that the fair use test is uncertain in its application. The lawyers for the Bill Graham Archives learned that recently in the Southern District of New York (subtle link to my post in the Trademark Blog here).
While I agree with Dennis that new technology can inject uncertainty, this most recent demonstration of someone betting wrong on a legal outcome arose in the old medium of books.
As for uncertainty, well, we make our living, in a sense, at being a decent guessers, and we call it legal risk management.
My real point to Dennis is - is that if he were leaning in the doorway of my office, worrying whether various personal activities were copyright infringements, I would say, yes, copyright law is uncertain, as is the tax code. However the copyright cases that are presented to us as being egregious (City of Heroes and the 'RIAA sues dead grandmother' cases leap to mind), are (in my anecdotal perception), those that involve people performing some public act with regard to the copyrighted work. In other words, if they were wronged by the copyright holder, it wasn't because of intrusion upon seclusion.
I acknowledge that the Internet may be blurring the distinction between personal and public acts, but the copyright cases that are getting the headlines are, to my mind, not unclear on this point. This isn't private (using private to mean solitary) behavior.
So I would say to Dennis, why do you worry about this stuff? and then either tell him to go back to his office, or I would change the topic to the new season of "Six Feet Under."
From David Giacalone comes a troubling, but not unexpected, story of the Kentucky Attorney's Advertising Commission's efforts to treat all blogs by lawyers as advertising. At the heart of the story is one of the nicest people I've met through blogging, Ben Cowgill, who, ironically, writes the Legal Ethics Blog. Ben has been working hard to explain blogging to the commission and pave the way for other Kentucky lawyers to blog without falling under difficult rules, and I want to thank him publicly for all of his efforts and wish him success in his efforts.
If those of us in the legal blogging community can do anything to help, Ben, just ask and we'll get the word out.
As I've mentioned before, it is quite difficult to understand when and how legal advertising rules might apply to blogs, which traditionally are geared toward providing education and information and have done a good job of improving the reputation of lawyers. What will be especially difficult is if disciplinary bodies decide to treat blogs differently from how websites have historically been treated. Let's hope that we don't see a case of "letting no good deed go unpunished," especially in the case of a good-hearted and well-intentioned lawyer like Ben Cowgill.
I've always considered Between Lawyers to be a pure education and information blog. Now I'm wondering if we need to load it up with a bunch of advertising and other disclaimers. Blogging is a lot of fun, but being a lawyer who blogs makes it harder to have fun blogging. That's sad to me.
Marty asked why I worry about this sort of stuff. I worry about this sort of stuff because I want to be the voice of the common people on this blog - the people who want to play by the rules and do the right thing, only to find a legal system that is so impossibly confusing that they don't know what the right thing to do is.
Of course, I also worry because the borrowing CDs from the library idea hit me and it seemed to good to be true, so I thought I'd post about it on Between Lawyers to see what people thought about it.
Marty, you might also notice that, just from the Trackbacks that post already received, this sort of stuff is thought about by people all around the world, including our Corante blogging colleague, Ernest Miller (who has an excellent post on these issues, despite his somewhat disconcerting habit of calling me "Kennedy" throughout the post - it's more than OK to call me Dennis). Perhaps the world doesn't revolve around trademarks, eh, Mr. Trademark Blog?
As an interesting aside, Miller's post shows the all-too-frequent divide between lawyers and legal academia where lawyers (for example, me) raise issues that seem to show that they are pretty much unaware of debates that have been raging in academic circles on the issues for years. On the other hand, I might be more aware of these debates than you might expect, but might have decided to take another approach in my original post. Who can be certain about copyright law interpretations or blogger's intentions these days? Not me.
As for me, I just want to play Columbo in all this: "I just have a simple question - it shouldn't take more than a minute to resolve."
When we started the Between Lawyers blog, we wanted to look at the question of how do you try to comply with the law when the application of the law is uncertain and there are no settled cases to give you any good level of comfort, let alone certainty. In other words, what do we do when technology starts to outpace the law?
My usual approach to these areas is to ask the simplest, most basic practical questions I can and see whether there are clear answers. Then I complicate the matters a bit to see where we get into the gray areas. I also assume that most people really do want to do the right thing and behave in ways that comply with the law.
Lately, I’ve been thinking about copyright law, music, and changing technology, with the iPod as my example.
I want to think about what I can confidently do with my music collection today. I’m looking for what I’m certain I can do if I take a very cautious approach to the legal issues.
Let’s assume that I want to make no commercial use of musical recording whatsoever – I just want to listen to the music. Here’s what I’m certain of (until someone corrects me):
1. If I buy a music CD, I am certain that I can play it on one CD player. I’m quite confident, or at least I was until those DVDs with geographic limitations came out, that I can probably safely play the CD on all of the CD players I own, wherever I might take them. I am assuming there are no limitations under a license that I don’t realize exists.
2. If I download a song from the iTunes store, or a similar online digital music store, I can play the song where the license permits me to play it. In most cases, I won’t run into any limitations that will bother me, but I must admit that I do not understand completely what limitations there may be in pulling a song off my iPod and using it on another device.
In example #1, there are some standard copyright principles, some specific laws, some history, and some common sense at play. In example #2, a specific license governs our use. Let’s assume that cassettes, LPs, videocassettes and the like fall into category #1 and commercial digital music probably falls into category #2.
The famous Betamax copyright decision focused on the notion of time-shifting, or, in a difference sense, control over when we watched a program we recorded so we could view it at a more convenient time. Despite the anguish at the time, history suggests that allowing the normal types of copying and time-shifting resulted in a great economic boon for the entertainment industry.
We now live in an amazing time when I can listen to a song on a variety of players, indoors, outdoors, in the car, on a network, wirelessly, and many other ways. Increasingly, especially after I own an iPod, I want to listen to my music where I am, in the most convenient way possible. I do not to become a licensing or copyright specialist.
Here’s where the difficulty lies. I believe that what I am doing is playing my music and listening to it. Unfortunately, in our digital world, what is also happening is that we (or our computers, other hardware and software) are making many, many copies of the digital information carrying the song as we listen to our music in many ways and in many places.
Copyright law deals with reproductions and copies. What copying is allowed and what is not? Is automatic “copying” as part of the normal mechanical or computer process (e.g., your browser caching a copy or two of this page while you read it) an infringing kind of copying? There certainly have been court decisions that would lead you to that conclusion, even though that’s a very unexpected result
Historically, we have looked at “fair use” to cover the normal, expected ways that someone might make use of a creative work without infringing the copyright. There’s a well-known four-part test for determining whether a use is a fair use. One of them is the extent of the copying. .In a digital copy of a song, you have a perfect copy of 100% of the work. You fail that part of the fair use test every time and you have to make your stand on the other factors, which, frankly, don’t relate to playing your favorite music wherever you want to play it.
I’m coming to the conclusion that “fair use” really doesn’t apply in the setting of the normal use of copyrighted works, especially when you consider the common examples of what uses “fair use” is meant to protect - , comment, news reporting, teaching, scholarship and research In fact, fair use is a notion that applies to certain specific types of public uses rather than private or personal use. You can’t really stretch it to the point of covering the standards uses we all make in the normal course of playing our music.
Here’s a list of a few things that I might do with music these days and my thoughts about whether it is clear under current law whether I can do them.
1. “Ripping” songs from CD I have purchased to copy the songs so that I can play them on my iPod, computer(s), PDAs, and other devices. Make no mistake, this is copying. I feel reasonably comfortable about ripping a song into iTunes and putting it onto an iPod, but I must admit that my comfort comes from the fact that “ripping” is a feature of the software and that Apple and the recording industry seem to have come to an accommodation on this issue. I’m not sure that I would have the same level of comfort if I only looked at the statutes and case law. When someone starts to have a half dozen or more copies of the same song file on various drives and devices, probably in a variety of file formats, I start to wonder whether you reach a point where it can be argued that having “too many” copies can expose you to liability.
2. Converting analog recordings to a digital file format. Again, largely because of the hardware and software that is available for this purpose, I’m reasonably comfortable, but I wonder about copying and reusing old recordings with technologies that were not contemplated at the time of the pressing of the original vinyl.
3. For convenience, storing all my digital music files on a server on the Internet so I can access all of my songs wherever I am. On convenience grounds, this is a very reasonable action to take, especially if I’m concerned about device failures. However, the Napster-era decisions make me nervous about this use, even if I have password-protected access to my server.
4. Using CDs or digital files that I haven’t purchased to make copies of analog recordings that I own. If you have read this far, you now understand where I was going with all of this. If you rip your CD collection and put it on your iPod, you’ll notice that you have songs on cassettes and LPs that you’d also like to have on your iPod. You have three standard choices. (1) Purchase the songs you want individually from the iTunes store or an equivalent source. Unfortunately, if you have thousands of songs, you potentially pay thousands of dollars for copies of songs you already purchased once. (2) Buy some hardware and software and convert your analog songs to digital in a real-time fashion that could take months. (3) Pay a service something like $6 to convert your analog recordings to digital files.
However, once you start thinking in terms of control, convenience and time-shifting, other options become quite logical, if you proceed from the premise that you already bought the song once. For example, you could save time by checking out CDs of albums you own from a public library and ripping them. You might borrow CDs or copy digital files from a friend. You might have other ideas as well. For example, think about a website where you signed an electronic affidavit that you owned a cassette tape of LP version of an album and then could download the digital files at a very small cost. After the Napster-era litigation and decisions, that one, logical as it may be, is probably a non-starter.
Again, assume that your purpose is always simply to listen to the music how and where you want.
Let’s consider some other examples outside the music realm. Assume that you want to print out a copy of this blog post to read at a more convenient time because the post is too damn long. That should be OK. There’s probably an implied license to print out a copy. How about two copies? Three? Emailing a copying to a friend? A few hundred friends? Printing as a PDF file and keeping the PDF files on several computers?
How about this one? What if I routinely print out paper copies of blog posts I like and store them in manila folders in a file cabinet? Should be OK, right? What if I “print” them as PDF files, store copies of several computers and use the features of Adobe Acrobat to create a great research collection or personal knowledgebase? Same answer, right? Maybe not. I don’t feel as comfortable with my answer as I did with the file cabinet answer. I’m not sure why – either why I’m uncomfortable or why there should be any difference.
I’ve lately started to feel, as have others, that there is a certain common sense approach to the use of digital copyrighted materials that (1) reflects our normal expectations about what we should be able to do with a copyrighted work just to use it in ordinary ways that do not seem to hurt the author of the work and (2) recognizes that the more we try to stretch the notion of fair use to cover these normal uses, the more we risk fracturing the protections that the fair use doctrine does provide.
My thought, and what prompted the title of this post, is that we are overdue for a reconsideration of the practical meaning of copyright law for real people in a digital world and that the subject of defining a “personal use” exception to copyright infringement that reflects the way people normally behave that would be separate from “fair use” should be considered and debated, while leaving the “fair use” doctrine in place to cover what it was intended to cover. In a sense, I’m advocating something in the spirit of what my friends at rethink(ip) raise in the title of their blog.
This area now seems to be one where the technology, and the uses of the technology, have zoomed way ahead of where the law is. Unfortunately, it seems to have moved so far ahead that I can’t see that there are any certain answers to very basic questions about what confidently can be done under the copyright law, as it now exists. I’m hoping that other people can help me. As a practical matter, we all have to make a determination about what level of legal risk and uncertainty with which we are comfortable. As you move to the conservative and cautious end of the spectrum, I think that you find very little ground to stand on.
As I said, I don’t have the answers, but I’m happy to raise the issues and offer Between Lawyers as a forum to discuss the issues.
Note that I did not go so far yet as to suggest that I should be permitted to buy bootleg recordings of concerts that I actually attended because they are simply ways to supplement the memories I already have.
Our neighbor Ernie Miller has called for Congress to podcast. Here's his roundup of responses, pro and con. I'm stunned no one yet has raised the critical public safety issue of all those drivers nodding off on the road. (Kidding, I think it's a great idea and high time.)
Any mention of things that haven't been made public is a no-no, of course, and bloggers are advised to notify the corporate PR department if nosy journalists contact them.
They're also encouraged to contact members of the relevant Yahoo team before criticizing their work.
NY Lawyer article on Sullivan & Cromwell sanctioned $5000 for delay in disclosing a settlement in a related lawsuit. $5000 is probably less than what the client was charged for dial-a-cars and meals on the case. Does a sanction this size deter or encourage similar behavior in the future?
Denise Howell
Dennis M. Kennedy
Tom Mighell
Marty Schwimmer
Ernest Svenson
