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.
He also has a great sense of style and humor when analyzing legal issues.
Here are two recent examples.
1. Professor Lenz dissects some comments by John Dvorak about the CC licenses. In the process, he both points out a few flaws in Dvorak's arguments (to put it mildly) and succinctly explains some of the key elements of the Creative Commons licensing approach.
2. He has a great, concise analysis of a Microsooft patent application for "custom emoticons." You should read the whole thing, but here's the money quote:
"While the patent office should reply with a big custom emoticon for 'Rolling on the Floor Laughing' to this application, they probably won't."
Over at my blog I've been on rant about boilerplate language, specifically the verbose stuff that many lawyers (particularly those who work in large firms) are adding to their emails. Whenever I bring this up I always get emails from lawyers who point out why the addition of this linguistic linguini is beneficial. I understand what they are saying (I am an attorney after all and have trained my mind to send and receive 'lawyer speak'), but I have serious concerns about having an email program automatically add verbiage to all outbound emails.
In fact, I have a lot of questions about this method of attaching qualifiers to our emails:
Aren't lawyers supposed to be versed in the art of critical, focused thinking?
Is there no way to be more selective about the boilerplate that we add to emails?
The automatic inclusion of dense language will (over time) actually diminish the likelihood that people will read this stuff. Should that fact play a role in deciding if we should indiscriminately add boilerplate?
And if no one is reading or understanding the boilerplate then why are we being required to add it?
It all seems like a very complex version of 'Mother may I'. If we indiscriminately add the dense language then we are automatically immune from any possible liability. We are immune because we will have discharged our lawyerly obligation to notify our client of something that is supposedly quite important, and which requires special attention. Yet, we discharge this obligation in a way that is guaranteed to make people's eyes glaze over and has almost no chance of providing people with meaningful information.
Does this really make sense? Maybe it does to some people.
I guess it does if you believe that maybe our evolutionary break from the primates isn't all that large. Then it makes a lot of sense.
"[O]ur findings show that non-personal bloggers are more likely to be male, significantly older and have more formal years of education compared with personal bloggers."
"[N]on-personal bloggers valued attribution and truth telling the most, but for personal bloggers truth telling was less important than attribution and minimizing harm."
"Our findings show that both personal and non-personal bloggers are quite ambivalent as to whether a blogging code of ethics is needed."
A woman was near death from a special kind of cancer. There was one drug that the doctors thought might save her. It was a form of radium that a druggist in the same town had recently discovered. The drug was expensive to make, but the druggist was charging ten times what the drug cost him to make. He paid $2000 for the raw material for the drug and charged $20,000 for a small dose of the drug. The sick woman's husband went to everyone he knew to borrow the money, but he could only get together about $10,000 which is half of what it cost. He told the druggist that his wife was dying and asked him to sell it cheaper or let him pay later. But the druggist said: "No, I discovered the drug and I'm going to make money from it." So the husband got desperate and broke into the man's store to steal the drug for his wife. Should the husband have done that?
Can headlines and titles of blog posts about blogs and RSS feeds inadvertently create hype about blogging and/or the blog or organization reporting the story?
A helpful study about blogs and RSS feeds from AskJeeves attempts to document the number of RSS feeds that actually matter. Before you get too excited that this study might help you actually cut down on the number of feeds in your news aggregator, be aware that the number of feeds that matter is a svelte list of 1,121,655 feeds. [Note: Does this mean that Robert Scoble will have to add 121,000 new feeds to his subscription list?]
You'll be intrigued to see the distinguishing factor each of these blogs had in common.
No word yet from AskJeevesas to whether an OPML file for the entire list is available.
It's certainly an honor to join the list of other "feeds that matter" and the team at Between Lawyers wants to thank our subscribers who made this achievement possible. We're planning a brief celebration and then we'll be right back to work.
Today we see that 'plaidgate' has been linked to by Instapundit and by the Washington Post's media critic who characterizes the transformation as 'an overheated interpretation of some mostly tongue-in-cheek posts' but nevertheless quotes the Charmaine Yost piece verbatim (keeping links intact).
The August issue of Fast Company has this succinct and on point guide to Business Blogging for Beginners (which is useful even, or maybe particularly, if you're not into cocktail parties).
Wikipedia's bio of John Roberts indicated that he went to an all-male boarding school, and was on the wrestling team.
Manhattan Offender, which appears to be a small personal blog, points this out, along with the fact that he took French and sang in the choir, and jokes that he might be gay. At least it is my conjecture that in this context, it was intended as an ironic remark, and that readers of a Manhattan gossip blog will perceive it as such.
Wonkette cites the Manhattan Offender joke and adds that Roberts must be a flame-thrower because he edited the school paper, The Torch. To add to the joke, she cited a NY Times piece entitled 'Court Nominee's Life Is Rooted in Faith and Respect for Law' for the bit that Roberts had played 'Peppermint Patty' in a high school play.
Ann Althouse a law professor, reads Wonkette's piece, notes that she had come to the same 'conclusion' that Wonkette did, and therefore she concludes that the NY Times had intentionally placed the bits about Peppermint Patty (and a photo of Roberts in a 'all-male wedding photograph' (as in photo of the groomsmen)) to plant the notion that Roberts was closeted.
Charmaine Yoest, an author and policy consultant, cites Manhattan Offender, Wonkette and Althouse's posts for the proposition that the 'left' has begun a whisper campaign against Roberts. She suggests that the left are homophobic.
Powerline , a high-profile conservative blog, in a piece entitled 'They Were Already Beneath Contempt,' cites Yost for the proposition that the 'Democrats' are hinting that Roberts is gay. He also adds that the Democrats were in favor of slavery.
Gordon Allport, in the 'The Psychology of Rumor' describes the manner in which rumors are transmitted (I'm using Malcolm Gladwell's summary of Allport from his book 'The Tipping Point'): The story is leveled - details essential for understanding (such as the fact that Wonkette is a humorist) are removed. The story is sharpened - the source of the 'facts' are no longer Wikipedia and the NY Times but 'the left' and 'Democrats.' The story is assimilated - the story is changed to make sense to those spreading the rumor.
The Democrats are spreading a scandalous rumor about the innocent nominee for their own purposes - that story will make more sense than the story that someone made a not particularly funny joke about Roberts being on the wrestling team. At least it will make more sense to those who will link to the Powerline without checking the links back to Manhattan Offender and Wonkette.
Like the Becker-Posner blog, it illustrates (to me) the point of blogs, in that it disintermediates the whole publishing industry thing, and makes it easier to hear from a brilliant person on a regular basis.
There is such a thing as the Uniform Code Council that governs the universal product code. If you want to print UPC bar codes, you have to join this organization. Membership doesn't seem inexpensive. The UCC (this UCC) was created in 1971 and has over a million members.
NY Lawyer: : Firm can sue former associate for allegedly jumping the gun as to soliciting clients for her new firm, however firm didn't plead defamation with particularity with regard to alleged comments by associate that her former boss was abusive, nasty and difficult.
I'm a bit behind in discussing this (and Copyfight has already mentioned the issue here and here), but it appears the Internet Archive has been sued for making archived web site pages available after the plaintiff had attempted to block them from being displayed.
I'm no copyright lawyer, and there's a terrific discussion of the legal issues at the Patry Copyright Blog, but this whole thing seems pretty flimsy to me. Any thoughts from the more IP-enlightened here?
IBM has released a trial enterprise blogging tool that will integrate with its Workplace Collaboration Services: "Weblog Preview provides the basic functionality usually expected of personal weblogs. For instance, Weblog Preview supports the posting of content in a journal format, emphasizing a personal point of view. The weblogs are public by default; that is, any authenticated Workplace user can read the blog. In addition, all authenticated users can comment on or link to the posts via 'permalinks.' The weblog owners, however, can restrict access to their blogs via the Workplace membership portlet, just as with any Workplace component." I don't know much about "portlets," but this strikes me as a positive and useful step in encouraging weblog use by businesses. Via Techworld, which has this quote from IBM's Ed Brill: "By putting that into Workplace, we are saying that we expect everybody in an organisation to be able to be a publisher, not just a consumer of information." Mr. Brill's blog looks like an excellent related resource.
Let's assume the CEO of your client came to you and said: "Loyalty has long been the most hallowed virtue in this company and I want you to draft a code of conduct for my officers, providing guidelines as to how an officer executes his or her duties so as to display loyalty to his or her superiors, peers and employees."
So if you were drafting a code of conduct, how would you define loyalty in the context of an organization?
Presumptions in favor of incumbents vis a vis outsiders?
Preferences in favor of incumbents?
Discrimination in favor of incumbents?
Is loyalty always a virtue?
Can loyalty be an over-riding managment principle?
How would you articulate proper limits to loyalty (if you would)?
I really like the guys over Rethink(ip). One of their recent posts called "Milking It" is mandatory reading for anyone who has ever wondered if the current emphasis on billable hours in law firms is really a good thing for clients or lawyers.
I'll let you decide about whether and when the practices described in the post might actually be appropriate (I expect that in certain cases they may well be), but I suspect that you may pick up a whiff of barnyard odor as you read the details of these practices. That might just be because the visual image helps prompt an sympathetic olfactory response. Words and pictures - a great combination. Check out the post and you'll see what I mean.
I don't have anything to add to Dennis on the parallels (or desired parallels) between tax and copyright policy, except that I enjoyed it (and I assume his concluding sentence is either rhetorical or hoping to prompt a discussion). In somewhat similar vein, don't miss Marty's post on blogs, print, and trademarks.
From today's SmartPros newsletter comes a fascinating story about tax compliance that I invite you to think about in the context of copyright compliance in digital music, Internet content and the like, as well as the role that an actively-managed Creative Commons licensing system might play. The article is called Taxpayer Advocate Says Voluntary Compliance Is Key.
From the summary:
"Excessive focus on enforcement at the expense of taxpayer service could have the effect of both reducing voluntary compliance and alienating taxpayers, according to a report delivered to Congress last week."
The money quote:
Commenting on taxpayer service research, Olson points out the IRS strategic plan for 2005-2009 -- "Service + Enforcement = Compliance" -- and states that the IRS has not conducted research seeking to determine the optimal allocation of resources between service and enforcement. "Consequently," Olson writes, "the IRS does not know whether recently proposed reductions in customer service will save the government money, since the potential impact on taxpayer compliance can not be quantified."
As we try to determine what you can and can't do in putting music you think you already own on iPods and how you can use music legally on your podcast, it is a worthwhile exercise to think about ways to set clear guidleines and make it easy for people to comply with the law. If you make it easy for people to comply with the law, they generally will comply with the law.
Here's a great example. I listened to a podcast interview with Brian Ibbott of Coverville on Podccast 411. The interview is a tremendous resource for anyone who uses or wnats to use music on a podcast. I listened to all the efforts Brian has made to talk to the appropriate people to get the licenses he needs to use music on his podcast. His experience has been Kafkaesque. There comes a point in the interview where he says that he hopes that they won't come after someone like him who has made a concerted effort to comply with the law and the licensing procedures and instead focus on people who have made no efforts. He then acknowledges that he's not sure that he hasn't made himself a bigger target by trying to do the right thing in a public way. That's sad.
If, ultimately, you are after more of the revenues that you are entitled to, is it better to focus on making it easy for people to voluntarily comply or spending most of your money and effort on expensive enforcement efforts that generate ill-will and negative publicity? In copyright aas well as taxes, should we be tipping the balance more toward voluntary compliance than on enforcement?
With all due respect (and copious amounts of respect are due) to Doc and Dennis, I am about the last person who can or should be sounding off about the monumentally important issue of who should succeed Justice O'Connor, as I am about as woefully underinformed about our options as a legal professional can be. Off the top of my head, I'll wholeheartedly agree with Dennis that the country would be well served by Judge Posner. The biggest knock I hear on Judge Posner is his age, 66 — a milestone I've considered most youthful and invigorated ever since my dad hit it earlier this year. As Slate says, Posner is "brilliant, unpredictable, and generally viewed as one of the country's leading legal minds." Anyone who has seen fit to embrace blogging within the last eight months is plenty young enough to be appointed in my book. I'll also disagree with Dennis that Dennis himself would not make an excellent candidate. I can think of no one better suited to maximize (or perhaps max out) the Court's technology budget and, in trickle-down manner, RSS-ify the entire textual, audio, and visual output of the country's judicial system — something I think we would all find most welcome. And the present and future Justices Kennedy could work out the whole name multiplicity thing in in short order.
But as I said, I'm not the person to whom you should be listening about the identity and qualifications of the next member of the Court. So maybe the biggest contribution I can make (as is often the case) is to point you to who and what I'm reading in an effort to become better informed on the subject:
Doc Searls recently suggested that it would be helpful (or at least interesting) for lawyer bloggers to discuss the current Supreme Court vacancy and potential appointment candidates. I thought we should jump into the fray before the Mainstream Media turns the analysis of the next Supreme Court appointment over to Tom, Cruise, Barbra Streisand and other celebrity thought leaders.
First of all, we all need to appreciate how truly difficult it is for a President to make this kind of decision. If I were President, I'd be agonizing over which of my colleagues Denise, Ernie, Marty and Tom to appoint first.
However, it's not my decision to make. So, let's consider my analysis.
1. The Current Model for Selecting a Supreme Court Justice. A President searches far and wide to find a candidate who seems to match the ideology of the party in power, but who has virtually no paper trail. Many trial balloons are floated, but the eventual appointee is probably not well-known. After the nomination, a confirmation process ensues that takes the term "politics of personal destruction" to a new level. To the extent the candidate is not ideologically polarized going into the process, he or she probably is by the end of the process. After the appointee is confirmed, the political parties gear up to make the next confirmation process even more destructive.
2. The "Why Wouldn't This Approach be a Little More Reasonable?" Process. I may be a Pollyanna, but I struggle with the idea that process #1 is good for anyone and wonder if there may be a better way. Here's my modest proposal. We start to look at a Supreme Court nomination in most cases as a promotion from the Federal Courts of Appeals. At any given time, there are a number of these judges who are highly regarded for their skills, aptitude, wisdom and temperament. Simply appoint one of them. If the Republicans are in power, they get to pick one of the judges who is right of center and, if the Democrats are in power, they get to pick one of the judges is left of center. The confirmation process is then friendly and respectful and we do not expect much uproar unless an appointee has truly unique issues. As a result, we avoid a process that undercuts the authority of and respect for the Supreme Court.
In the current case, for example, here's what might happen. Justice O'Connor has resigned. To illustrate my approach with an example, I would personally find Judge Richard Posner as a perfectly reasonable choice (and he's a blogger too!). He's a Federal appellate judge, experienced, widely respected and, based on my one observation of seeing him speak, seems well-suited to be a Supreme Court judge. The Republicans are in power and, regardless of my own politics, I think it is their right to pick a judge perceived as right of center. We then have a friendly and respectful process that brings out the best aspects of Judge Posner and he quickly gets confirmed.
Now, the current vacancy raises the diversity issue and I'm quite sensitive about that issue. Any reluctance I might have about a Posner appointment in my example relates to the diversity question. However, I am OK with replacing a female justice in this case with a white male justice because Posner is not a young man and other vacancies may occur in the near term allowing the diversity issues to be addressed in the near term.
Obviously I've over-simplified the issues and examples to start the discussion and to move the focus on what might become a more civil and civilized process.
Now, believe or not, I've gotten a few questions about my own prospects for being named to this Supreme Court vacancy. I think that we all can agree that this blog post (especially what follows) should put an abrupt end to whatever slim chances I might have had. Nonetheless, let me kick in with one of those "top ten" lists that pass for political analysis these days and give you the ten reasons Dennis Kennedy won't be appointed to the Supreme Court anytime in the foreseeable future.
10. There's already a Justice Kennedy. There'd be way too much confusion.
9. There's that now-legendary Metallica blog post I wrote.
8. I'd want to do some "All Request Tuesdays" for the Supreme Court to give quick answers to burning legal questions.
7. I can't even think of one argument for not televising arguments before the Court.
6. There is such an opening to be known historically as the "Justice with a sense of humor" that I'd probably try to hard to earn the title.
5. You can't use emoticons to indicate when you are being ironic in Supreme Court opinions. I'd be worried that an ironic comment would be misinterpreted as the law of the land.
4. My motto would be: "Decide more cases. Write shorter opinions."
3. It looks like the Supreme Court spends most of its time deciding cases in areas of law that I have spent my whole career trying to avoid.
2. I wouldn't want to take a step backward in the technology I use at work.
1. There are many other legal bloggers who deserve much more than I do the honor of being the first blogger named to the Supreme Court. It'd be nice if one of them were considered for an opening in the Court one of these days.
From Swissinfo.com, Registered E-post will soon be reality: "Since the beginning of 2005, the electronic signature in Switzerland has had the same status as a handwritten signature for contracts and business transactions."
It's a good day to read and contemplate the original text of the Declaration of Independence with fresh eyes. It won't take you long. For our provocations category, I'm hard pressed to find a better example of a provocation as a call to think, to consider and to act upon what we think is most important. Although Thomas Jefferson did not podcast the Declaration of Independence, you can check out a video performance here.
Still relevant for you today? How so? If not, why not? Think about it.
Monday, June 27.Grokster decision issues from U.S. Supreme Court. Court concludes that "statements or actions directed to promoting infringement" should trump the safe harbor represented by the Sony-Betamax decision. Applies to secondary liability for user infringement in connection with all products "capable of both lawful and unlawful use." Fact of probable "staggering" scope of direct infringement by users, while not controlling, undeniably shades the analysis.
Tuesday, June 28. iTunes 4.9 debuts, now with podcasts. The good news: many podcasts are copyright friendly. The bad news: many, not so much.
Wednesday, June 29. The Wall Street Journal reports that "Apple will weed out podcasts that include full-length songs for which [sic] podcasters don't have permission to use," and that "Mr. Jobs says Apple has an agreement from music companies that allows podcasters to play 30-second song clips in their shows."
Hmm. I begin to understand what Ernie Miller meant by "ironically." Like the business models of Grokster and StreamCast, the iPod business model hinges on users having worthwhile, perhaps frequently infringing, listening material. In podcasting then, Apple has the proverbial Tiger (no pun intended) by the tail. Will it behave, or not? (Playing with fire and bargaining with the devil are two other hackneyed but apropos expressions that come to mind.) Will podcasts strengthen Apple's ability to fend off secondary liability claims, or just multiply the number of direct user infringements being facilitated? It's tough to say, but I bet it's got legal in a tizzy.
Denise Howell
Dennis M. Kennedy
Tom Mighell
Marty Schwimmer
Ernest Svenson
