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.
Interestingly, I noticed in the post that legal blogs are apparently being called "blawgs" around the world, using the term that Between Lawyers' own Denise Howell coined several years ago. The genie is out of the bottle and I have strong doubts that current efforts to stifle the use of the term "blawg" will be successful, although I too marvel at the tenacity and passion people seem to have about the issue.
Tom and I have put together the details for the Sunday evening blogger meetup we're putting together while we are in New York for the LegalTech conference.
This is going out to everyone who expressed interest in meeting up (bloggers or otherwise) on Sunday night in NYC. Rather than try to find a restaurant that would fit all of us, we decided that you're on your own for dinner. Let's meet for drinks at 8:00 p.m. at the Hilton New York's Bridge Bar. The address is 1335 Avenue of the Americas. It's just off the lobby. The Hilton is where LegalTech will be held, so hopefully you'll all be somewhere in the neighborhood.
See you Sunday night!
Tom, Dennis and Marty(?) (we're still not sure whether Marty will be able to make it there)
I've been intrigued by the ways people can use blogs and RSS for nonprofit organizations and other charitable efforts, especially after what we saw after the tsunami. A while back, I found Netsquared.org and became acquainted with Marshall Kirkpatrick, who writes a great blog of his own and is involved in the NetSquared effort.
Last night, Marshall and I did an interview session via Skype IM that he's published on the Netsquared site. I cover a wide-ranging list of topics and had a lot of fun doing the interview.
Netsquared has a cool upcoming conference that will bring nonprofit and tech people together. If my interview helps publicize what they are doing, that would be great. Please check out my interview, then spend some time on the Netsquared site and see if you might be able to help out.
Genie Tyburski: "Perhaps more disturbing than the request itself is that we learned about it because Google refused to comply." Today Genie's TVC Alert also supplies a primer in the form of a definitve collection of links.
A December '05 "Monthly Question" from the ABA Section of Litigation found 57% of the respondents are reading blogs, and 19% are authoring them. (It also found our Ernie Svensen to be among the most widely read blawgers, something that surprises none of us and likely none of you.) [This one's a triple, coming my way via Ron Friedmann, via Alan Goodman, via Blawg Review #41] Says Ron Friedmann of the survey: "I would guess that respondents are lawyers who already spend a fair bit of time online, which would likely bias the sample toward blog readers and writers." I'd say that's a decent guess, given it was an online survey on an ABA section site — though I think it's just as possible the type and location of the survey made it more likely to attract those who don't read or write blogs; I know as one of the 19% I tend to spend my online time in places other than ABA section sites. Whatever you may conclude about the reliability of the survey, note that nothing about it keeps Ron (or me) from thinking blogs are "for real."
So, in technology, Moore’s Law is alive and well. But technology does not operate in a vacuum. No business or government institution can change at 50 per cent a year. While stability and tradition are important, if a fundamental technology progresses far beyond society’s ability to absorb its impacts, a growing disconnection occurs. When, in the 19th century, technology proceeded at a rapid pace while social institutions did not, the results were upheavals and revolutions. Today, again, the key elements of the information economy are progressing at a scorching rate, while private and public institutions are lagging behind.
But, here's the money quote that lawyers those in the tech world should meditate on:
In businesses, competitive pressures lead to a speed-up of internal processes or companies fail. But for government the same is not true, even with globalisation. Courts can take years to resolve disputes. Regulators and legislators require years to establish rules. There is an entire industry out there, the main product of which is delay.
Some of the problems of these decision processes are inherent and based on the need to balance social objectives. But others could be remedied. In the US, the delay in courts could be alleviated by tripling the number of judges. Compared with the overall cost of government, judges are cheap. So are patent examiners. Streamlining administrative law, simplifying the appeals process or creating mandatory arbitration mechanisms should not be expensive. The economic benefits would be incalculable.
One needs focus not just on policy substance but also on its process – the small but constant frictions in the mechanism of government that grind down innovation and threaten to repeal Moore’s Law where physics could not.
Noam makes an interesting observation about patents and patent offices: "Patent offices everywhere are falling behind their workload. It may soon take more than five years to get a patent in the US."
Are we already seeing the symptoms of the increasing pace of the pace of change that Kurzweill has called the coming Singularity?
In other patent news, on Slashdot, ScuttleMonkey points to an article on The Register, based on research from a company that provides proofreading and other services, that says:
Almost every US patent contains at least one mistake, according to new research. The vast majority are trivial errors, most of them the fault of the USPTO; but two per cent of the patents examined were found to contain serious mistakes that weakened the core claims.
Though I think there's the possibility an implied license argument could prevail in the right case(s) involving syndicated material, I don't for a second think it would fly in circumstances where the feed is automatically provided by a third party host, and it communicates applicable Creative Commons license commercial use restrictions. See (or more accurately, listen to) Adam Curry'sDaily Source Code #320. What do you think?
Steve Nipper's post called "Comment Policy for this Blog" both highlights a practical (and friendly) approach to some of the legal issues involved with comments on blogs and points out some useful resources about those issues. Of special note is the EFF's FAQ on Section 230 Protections for Bloggers, which is required reading for all bloggers who allow comments and highly recommended reading for people who leave comments on blogs.
A teaser from the FAQ:
Your readers' comments, entries written by guest bloggers, tips sent by email, and information provided to you through an RSS feed would all likely be considered information provided by another content provider. This would mean that you would not be held liable for defamatory statements contained in it. However . . . .
Draft of New Version 3 of General Public License Now Available
The biggest news in the world of Open Source licenses these days is that, after 15 years, the GNU General Public License is being revised from version 2 to version 3. THIS IS IMPORTANT. The current draft, more information, rationales for changes and areas to comment and discuss the changes are all available at the GPLv3 site.
From the home page:
The core legal mechanism of the GNU GPL is that of copyleft, which requires modified versions of GPL'd software to be GPL'd themselves. Copyleft is essential for preventing the enclosure of the free software commons, today as it was in 1991. But today's environment is more complex and diverse; thus, a fully effective copyleft calls for additional legal measures. Devising these measures is complicated by another aspect of our success: the worldwide adoption of free software principles. We hope and expect that contributors to GPLv3 will come from all over the globe, and from every developer, distributor, and user constituency.
Bookmark the site and follow and/or join the discussion.
Shelley "Burningbird" Powers in her post called "That Old Copyright Song" is asking all the right questions about how full text RSS feeds may be "repurposed" by other sites and whether and to what extent the copyright rules limit this usage or even apply in this context.
I noticed that Denise Howell, among others has added some comments to Shelley's post (and posted about the issue on Bag & Baggage).
I encourage our intellectual property lawyer audience to consider participating in the conversation in Shelley's comments section.
I've been intrigued by these questions, for which I have not found good answers, since I first saw my full text posts appearing on pages at Bloglines in a way that someone could have easily considered to have been my actual blog.
What I've found that interests me most is that there is an technological argument that "repurposing" full text RSS feeds involves a form of linking rather than a reproduction of the type classically associated with the current copyright law. If that is the case, then it may be that the early web page framing cases, rather than the copyright laws, provide the legal framework for analyzing these issues. To the extent that we call can learn more specifically what is actually happening when feed items are aggregated or repurposed, the discussion of the legal issues will become more focused and more helpful.
At this point, I think it's safe to say that most authors will have at least a visceral reaction to seeing someone making money, by ads or otherwise, by repurposing or publicly aggregating their feed content. On the other hand, most bloggers would probably give permission if asked.
Unfortunately, as Denise noted in her comments to Shelley's post, resolution of these issues in the courts could take years and still leave us with open questions. In the meantime, we all still need to make decisions about how to address these issues. In a nutshell, that points out one of the growing problems with a legal system 1.0 in a web 2.0 world.
Dahlia Lithwick, Revenge Of The Nerd:
"He is like a very, very smart rock."
Also: "Anyone can manage to be boring on boring subjects; Alito has seemingly perfected the art of being boring on controversial ones."
Howard Rheingold at Smart Mobs points to the Peer to Patent Project Blog. According to the site, "Sponsored by IBM, the Community Patent Project seeks to create a peer review system for patents that exploits network technology to enable innovation experts to inform the patent examination procedure."
Here's why I put it in the Law 2.0 category
The Community Patent Project aims to design and pilot an online system for peer review of patents. The Community Patent system will support a network of experts to advise the Patent Office on prior art as well as to assist with patentability determinations. By using social software, such as social reputation, collaborative filtering and information visualization tools, we can apply the “wisdom of the crowd” – or, more accurately the wisdom of the experts – to complex social and scientific problems. This could make it easier to protect the inventor’s investment while safeguarding the marketplace of ideas.
Actually, I have lots, some admittedly more lofty than others. One is that law firms and their clients will find ways to spend less on IT without sacrificing performance or convenience. Robin "Roblimo" Miller's book Point & Click OpenOffice.org seems like one of many excellent possible starting points.
When I met Tony Colleluori last year, I was reminded that it is far too easy these days to forget that many lawyers entered the legal profession because they see it as a caring profession,
Tony's post on That Lawyer Dude today about the death of one of his criminal defense lawyer friends demonstrates that sense of caring and concern that is often seen inside the legal profession, but, unfortunately, not so well known outside the profession.
In part, Tony writes:
I am older and wiser now. I am sitting at my desk and I am still working, but in part that is about the need to mourn an old friend. In part it is also to not let his death be in vain, but to serve as a warning to the Novices and experienced alike that what we do should never become who we are. That our duty to our clients ends at the beginning of our duty to our families and our God. That we can offer those whom we fight for, only ourselves, and if we allow ourselves to become nothing, then what can we offer those that need us?
It's a sad story, a cautionary story, and a touching story - one that will make you feel Tony's loss and show you the power of blogging, even lawyer blogging, to carry emotion, feeling and a sense of connection. Please read.
In honor of the Alito confirmation hearings, remember to answer Marty's question: "What experience/qualities would you like to see in a Supreme Court justice?"
Let's discuss rethinking the role of big law firms, says Dennis, suggesting (via the quoted article) that "for the really tough problems" small and elite is more effective than big and swarmlike. Seems to me this may be missing the Wisdom of the Crowd effect. No, I haven't (yet) read the book, and I heard author James Surowiecki's caveat yesterday on CBS News Sunday Morning about how a "herd mentality" or other influences can skew the results, but as I understand the premise Surowiecki's findings suggest the elite strike force works better when its actions are informed by the big swarm. In the legal context, this could be a firm, or a loosely joined, socially networked grouping coming together with the aid of online or other tools, or both.
The Wired GC reports on recent developments in the "Law 2.0" discussion, which has taken a look at what the current notion of Web 2.0 may mean for the the delivery of legal services and the practice of law. Ideas like open source lawyering, self-service law, virtual law firms and new forms of delivery and billing for services and products all arise in this context.
The Wired GC notes that the Law 2.0 got some recognition, along with similar ideas in other fields, in Dion Hinchcliffe's excellent summary post called "The Web 2.0 Revolution Spawns Offshoots," which references, among other things, the articles that Tom Mighell and I, along with a few other pforward-looking thinkers, helped put together in the recent issue of Law Practice Today.
The money quote from Hinchcliffe's article:
The interrelated, mutually reinforcing concepts in Web 2.0 like true disintermediation, customer self-service, and harnessing collective intelligence, are resonating with many other industries. As it turns out, these industries are in the process of being transformed by technology including the relentless collapse of formal central controls, pervasive Web usage, rapid technological change, and more. These communities seem to be craving a new model for collaboration, relevance, and usefulness. And Web 2.0 seems to give them both a beacon to rally around and a useful set of practices that can then be used for constructive reinvention.
Lamb concludes his excellent discussion with this:
For me, I believe that the best answer is better explained using a military metaphor. Sometimes the number of boots on the ground matter. That's why we have the Army and Marines. Sometimes, and almost always for the really tough problems, you're better off with an elite Navy Seal Team or the Delta Force. Small and elite is where you get the best of the best.
Andrew Sullivan writes about a Stephen Hayes article on terrorist training camps in Saddam's Iraq. In the Hayes article, we learn that of approximately two million seized documents, only 50.000 have been translated and analyzed in the last few years, causing growing levels of exasperation in the U.S. government and intelligence community.
It goes without saying that this state of affairs again raises the "are we safer now?" question and, if you read the entire article, you'll wonder where priorities really lie in the current bureaucratic approaches.
HOWEVER . . .
In the middle of Hayes' article comes one of the most intriguing, even innovative ideas we are likely to see in the field of intelligence analysis.
Consider this quote:
Following several weeks of debate, a consensus has emerged: The vast majority of the 2 million captured documents should be released publicly as soon as possible.
Defense Secretary Donald Rumsfeld has convened several meetings in recent weeks to discuss the Pentagon's role in expediting the release of this information. According to several sources familiar with his thinking, Rumsfeld is pushing aggressively for a massive dump of the captured documents. "He has a sense that public vetting of this information is likely to be as good an astringent as any other process we could develop," says Pentagon spokesman Larry DiRita.
Fascinating stuff. Surely putting thousands of eyes onto these documents must be better that storing them in boxes. It would also be interesting to see what cutting-edge scanning and analytical tools used in electronic discovery could do with these materials.
I encourage you to read the article and draw your own conclusions. I find this story quite troubling and think that it would be a good idea to "open source" this material rather than to keep it in closed boxes. A public debate over the issue would also be worthwhile. Consider this approach in contrast to John Robb's recent comments on the problems of isolated decision-making.
The 2005 Annual Report from the Law School Survey of Student Engagement, which "gives schools an idea of how well students are learning and what they put into and get out of their law school experience" (and is the basis for the article Dennis linked earlier), is here. (Via Genie Tyburski) "[T]hird-year students look similar to first- and second-year students in areas such as critical thinking, effective writing, and work-related knowledge or skills." If you were to survey practicing lawyers, you'd find resounding agreement on two points: very little about law school prepared them for for the bar exam, and even less prepared them for the actual practice of law. So why not just axe the third year? (My response: 'cause when else for the ensuing 40-odd years do former law students get to goof off?)
Scott Jaschik's "Goofing Off in Law School" in Inside HIgherEd News documents what many of us had only suspected - that there is a marked tendency for third-year law students to slack off in that third year of law school. Not that any of us at Between Lawyers did anything like that. No sirree.
I do remember an early morning class I had in my third year where on the last day of classes before the exam (the day you found out what was going to be covered on the exam) I noticed quite a few people were shaking hands with people they hadn't realized were even on the class roster because they hadn't seen each other all semester. In other words, I don't think that this story points to a new phenomenon or is symptomatic of a "new generation of law students."
I'd be curious to learn the correlation between these stats and time spent looking for a job, interviewing and working part-time jobs during the third year.
We want to welcome the Wall Street Journal to the world of blawgs. Peter Lattman, WSJ journalist via Forbes Magazine and former New York litigator, is the author of the just-launched (and cleverly-named) Law Blog. (feed). Check it out.
Peter writes:
Our mission: to scour the universe for compelling stories in two related areas: business and law, and the business of law. Law and business is a broad intersection, encompassing such current news as the Enron trial, the Merck litigation and the RIM patent dispute. The business of law is focused on law firms and in-house law departments. We’ll write about industry news and legal trends, with a sprinkle of good old-fashioned gossip.
We’ll link to the best coverage of law and lawyers from around the Web, report some news of our own and look to you for contributions. We heartily invite your comments, tips and insights.
We want to welcome Peter to the "blawgosphere" and look forward to the topical coverage the Law Blog will be providing.
It's often a very useful exercise to stand in someone else's shoes and see things through their eyes.
For lawyers, one exercise is to try to see things from the point of view of your clients. When it comes to legal technology, I usually refer to this approach as "client-driven technology."
Michael Kraft and Robert Enholm have written a great new article called "GC Tech Wish List for 2006" that will give lawyers some ideas about how legal technology looks from the corporate counsel's side of the table.
The January 2006 issue of PC Magazine has a nice list of tech resolutions you should be making this year. You will no doubt know that you should be doing all of these -- but we can always use a reminder. So here goes:
-- Back up your data. A few suggestions for easily backing up your important files: 1) buy a stand-alone hard drive, like the Maxtor One-Touch. An automatic back-up software program like Dantz Retrospect is great for using with an external hard drive. 2) a slightly more advanced option is the Mirra Personal Server -- it comes with all the software to automatically back you up, and you can also access your computer files from any computer that has an Internet connection. 3) Finally, an online solution I've been trying out lately called Mozy. You get 1GB of online storage for free, and an extra gig if you answer 3 simple demographic survey questions. 2GB for free is pretty good, and Mozy works great.
-- Keep Your Operating System Up to Date -- security researchers uncovered a record 5,198 flaws in operating systems last year -- gee, that's 14 a day. If you're using Windows XP, make sure you enable Automatic Updates. Then you don't even have to worry about this -- Windows will download and install critical updates without you having to do a thing.
-- Keep Your Antivirus Software Up To Date -- any antivirus program worth its salt has an automatic update feature. The antivirus companies are generally very good at keeping up with the latest viruses -- take advantage of their expertise and let them automatically update your computer with the latest definitions.
-- Run antispyware software -- if you're using Firefox, you probably don't have any problems with spyware. I certainly don't. But I still run three antispyware programs every few weeks. My favorite is Microsoft Antispyware; it updates automatically, and provides real-time protection. I also use SpyBot and Ad-Aware, and I'm wanting to try Spy Sweeper, which is regarded by many to be the best anti-spyware software out there.
-- Check System Restore Disks, and make them if you don't have them -- here's how to build an XP-SP2 Recovery Disk.
-- Check your firewall regularly -- enough said.
-- Change your passwords regularly -- learn how to create strong passwords, and keep them safe with a program like Roboform.
-- Check your credit reports regularly -- everyone is entitled to one free credit report per year; sign up for yours at www.annualcreditreport.com. If you want to check it more often, contact one of the credit agencies: Equifax, Experian, or TransUnion.
-- Back up again, and keep a copy in a safe location -- because it bears saying again.
Denise Howell
Dennis M. Kennedy
Tom Mighell
Marty Schwimmer
Ernest Svenson
