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.
Whether you call them blogs or blawgs, you have to admit that law-related weblogs (and the people who publish them) occupy a pretty special place on the 'Net. The guys at Rethink(IP) and Kevin Heller recognized that uniqueness when they created Blawgr, a community weblog "where blawgers and attorneys discuss whatever is on their minds." They freely admit it's a weird concept -- and yet it also makes perfect sense. Check it out.
[From Professor Sameulson:] Rather than impose a set of rules, [the CEO] should start a conversation within the firm about the risks and opportunities that blogging poses. [The company] should establish norms, tailored to its own market and culture, that respond to the challenges posed by blogging and other Web phenomena.
[From Ray Ozzie, regarding Groove Networks' pioneering blogging policy:] The policy was designed to address four areas of concern: that the public would consider an employee's postings to be official company communications, rather than expressions of personal opinion; that confidential information—our own or a third party's—would be inadvertently or intentionally disclosed; that the company, its employees, partners, or customers would be disparaged; and that quiet periods imposed by securities laws or other regulations would be violated.
I purchased a license for "A Blogger In Their Midst" that will let me distribute copies. I should have some extras after the conference, so if you're interested let me know and I'll be happy to forward one.
He discusses the debate in academia over whether academics should be blogging or, instead, confine themselves only to traditional academic vehicles. He frames the issue: "From my vantage point, it appears that the so-called traditionalists are beginning to sense the threat to their way of academic life that blogs, and technology generally, pose. Understandably, they seem concerned that the foundations of the think/write/publish routine to which they are accustomed and with which they are comfortable are beginning to crumble. The irony is that the approach held so dear by traditionalists probably isn't old enough to qualify as a tradition."
The money quote (but you should read the whole post):
If there is a difference, it's that I have almost instantaneous access to what others are thinking, ideas that would not see, and do not see, the light of day in the world of student-edited, paper format reviews that often are too late to be of use. Sometimes I seek feedback, and learn far more from listserv discussion than I would chatting with the one or two members of my faculty who have expertise in my area of the law. Then I write. The difference is that when I'm ready to publish, I publish. I don't go begging to second-year and third-year law students who have little if anything to add to the analysis, and whose focus on the technical insanities of the Blue Book or whatever citation format directive is in vogue adds weeks if not months to the process without adding anything to the message.
Farmshoring has a catchy ring to it. According to Wikipedia, "Where offshoring is the relocation of business labor to foreign nations, farmshoring is the relocation of business labor to small rural American towns."
I've heard the terms "homesourcing" and "insourcing" to refer to outsourcing work, including legal work, to the US Midwest and other "non-coastal parts of the US. It's an idea that starting to get a lot of discussion and some traction, including in the discussion of Law 2.0. One more piece of "the world is flat" conversation and a new meme to watch..
Also included is a new article from Johnson called "The Life of Law Online" that I highly recommend to anyone who wants to think about where law is headed in an increasingly online world.
The new article ends with this paragraph:
Our geographical, sovereign law may be well suited for regulating physical things and protecting us from real world threats. It will undoubtedly persist in its own appropriate environmental niche. But, even in that context, we would do better to treat it as an organism, rather than a mechanism — viewing it as a complex whole, disallowing efforts to redesign it from outside, discrediting efforts to analyze it by reductionist means. In any event, we must recognize that our current legal organism, transplanted online, will not prosper. As we interact globally over the Internet, we create a new non–local citizenry, a netizenry, occupying many different kinds of online spaces that both need and can create rules of their own. The new global metabolism will produce new forms of social order that use fundamentally different forms of repair, goal setting and legitimation. Our old meta–meta–story of citizen consent to a social contract empowering a territorially local government just won’t work in this new context. But new repair mechanisms, new complex systems, new forms of social order will arise. These will involve voluntary navigation and filters, not voting. They will demand and receive deference from local legal regimes, because they will be better than any current legal systems at creating social order online. Long live the new legal organisms of the net.
A profound and fascinating article. Johnson's writings have been a big influence on my thinking for many years and he is one of the giants in both the legal aspects of technology and the use of technology by lawyers. I'm thrilled to learn that Johnson will be speaking at ABA TECHSHOW 2006, where I hope to meet him and say thank you in person.
It's hard to believe that it was almost a year ago that we were discussing on the Between Lawyers blog a series of breathless announcements from lawyers and other pundits about the dramatic dangers for employers who did not have a "blogging policy" in place. Too many of those announcements suggested that "thou shalt not blog" was the best policy, not realizing that there might even be positive benefits of employee blogging in the sense of the Cluetrain Manifesto and other thoughtful approaches.
Concerned that the general public would see the new-found concern of lawyers as being simply a law firm marketing flavor of the day, we decided to shine a little light on the topic, cut through the hype and take an approach that focused on education rather than fear. You can find our posts on this topic in the blogging policies archive of the Between Lawyers blog. I've just read through the posts and they seem so reasonable that you may wonder if lawyers actually wrote them. There are also some great links and resources.
I think that the discussion here did some good because I didn't see any "Blogging Policy Alerts" for quite a few months after we (and others in the blog world) discussed the topic.
Well, it was a short ceasefire. A new article at Forbes.com called "Protecting Employers Against Bloggers" is a recent example of the alarms being sounded again.
I've read a whole bunch of these articles on the dire need for "blogging policies" and I'm forced to conclude that I'm just a dumb country lawyer who doesn't get what all the brouhaha is and maybe my experience as a blogger really has not given me any insights into these issues. I'm also a little more dubious of surveys than most people seem to be.
Maybe someone can help me understand why I can't understand why having or not having a "blogging policy" is such a cause for alarm.
As I see it, if you have the normal sort of well-drafted employee manual or guidelines, Internet or technology use policies and corporate communications policies, it seems like you should have blogging covered. I just cannot see how blogging raises issues that are any different from public speaking, email, websites, and even use of the telephone. In fact, if you substitute "telephone" for "blog" in the recommendations at the end of the Forbes.com article, you'll see that the same principles apply equally to telephone use.
On the other hand, if you have none of these policies, then concentrating on "blogging policies" without addressing the other policies seems a little silly.
In all events, expecting to find a one-size-fits-all policy is not a wise move. These policies need to fit your culture and the unique circumstances of your business. The Forbes.com article ends with what I believe is the most important point of all in this area (and it's not a legal one) - training. As the article says, "Employees should be trained about the existence and contents of these policies and their obligation to maintain the employer’s reputation in the community at large." Bingo. Policies without training and leadership at the top levels create their own set of problems, especially if the exercise is just to slap a "standard policy" into place.
However, I'm willing to learn where I'm missing the point. In the meantime, I recommend that you read the posts in our archive in addition to the dire warnings about blog policies that seem to be bubbling back up to the surface in recent weeks.
I just tried to email a document to Marty, but of course sent the email without the document, as we all inevitably do. (Please tell me it's not just me.) In response, Marty offered a would-be — correction, would be HUGE — t-shirt slogan: THIS TIME WITH ATTACHMENT
Did you ever wish that you could have old email addresses forward to your new email address? How about a way to remember which of your throw-away email addresses you might have used to register on a website?
A story on the ComputerWorld website reports that Miller Brewing has touched off some controversy by sending follow-up emails to the "real" email addresses of people who register with "throw-away" email addresses. Some describe it as a little eerie or feeling a little like being stalked. I'm wondering if there might be a business model in providing a service that eventually reaches you at a good email address as you change, forget and move through a variety of email addresses.
I'll let you decide how creepy this story seems to you.
The detective efforts of the people involved are noteworthy for giving you excellent practical tips for digging for this type of information.
Do you write a blog that falls somewhere along the broad continuum between "personal" and "business?" If you sometimes write about personal things on your business blog, or business things on your personal blog, or you're not sure you can cubby-hole whatever it is you do into one category or ther other, the answer is "yes." In that case, you should go take the BlogHersurvey on Blogging Naked at Work. (Po Bronson would approve.) I for one am interested to see what sort of mores, norms, and expectations are developing, and this is a great way to begin to get a handle on it. All genders welcome.
Fred von Lohmann's fascinating post on EFF Deep Links called "RIAA Says Ripping CDs to Your iPod is NOT Fair Use" suggests that the RIAA's aggressive policy on how NOT to make friends and influence people continues unabated.
The money quote:
So your ability to continue to make copies of your own CDs on your own iPod is entirely a matter of [the RIAA's] sufferance.
Although it was predictable that the RIAA would take this position, it's still sad to see that they want to go down this road. Wouldn't it make more sense to do things that help people enjoy music rather than to try to exact a tribute payment for each way people normally use music?
Dave Pollard has a great post called "That's Not What I Meant" about the importance of communication, context, tone and other cues in a world where some say that the tone, and often the intent, of half of all e-mail is misconstrued by readers. That also happens every now and then with blog posts. ;-)
Let me say this as simply as possible: Ron Baker's post called "Attorneys Aren't Knowledge Workers" must be read and discussed by all lawyers. No excuses - read it.
In a letter and recommendations of yesterday's date, the American Bar Associationurged* President Bush, among other things, to avoid "any future electronic surveillance inside the United States by any U.S. government agency for foreign intelligence purposes that does not comply with the provisions of the Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1801 et. seq. (FISA)," and "to seek appropriate new amendments or new legislation rather than acting without explicit statutory authorization[.]" The Electronic Frontier Foundation has a concise summary of how and why it believes the administration's domestic electronic surveillance actions have run afoul of "the Fourth Amendment, FISA, the Wiretap Act, [] most likely the Electronic Communications Privacy Act," and the executive power authority granted by the Constitution.
Thomson West has a new tool, Westlaw Watch, that sounds like a subscription based aggregator for materials available from West. From the press release: "The new clipping functionality provides a way to target relevant legal and business information and distribute it in a timely manner. . . . Users can access their Westlaw Watch results in a variety of ways including e-mail, personal digital assistants (PDAs), RSS, intranet/portal, and XML."
From what I can tell (I kicked the tires for about 5 minutes) the idea is good but the implementation could use some work work. Curious to know if anyone else is more impressed. Curious to know what it costs.
(Also interesting, at least to me: that Thomson West has my personal/blogging email address on its press release distribution list.)
The latest version of the Google Desktop is out, and among its newer features is the ability to "search across computers." Let's say you have a computer at work, a laptop you use for travel, and a PC at home. If you have the Google Desktop installed on all three computers, you can enable the "search across computers" feature, so that if you're at work and you need something from a Word document at home, you can search for it. But to be able to do that, your data has to reside on Google's servers.
The feature is turned off by default, your data is encrypted online, you can delete all the data on the Google servers with a click of a button, and Google is falling all over itself to ensure its users that their private data will remain private. I'll be interested to see how many people really take advantage of this new feature.
David Lat, on the recent blog-occasioned sacking of Senate staffer Stormie Janzen: "Merely working for the government should not prevent you from expressing yourself on matters not directly related to your employment (with direct relation construed narrowly). To adopt a contrary rule would exert an unwanted chilling effect, deterring anyone remotely interesting, creative, witty, or fun from entering government service — which, if the current Congress is any indication, has already happened." Much more, at Wonkette.
The AP's Brian Bergstein has a recent story on the e-discovery field: E-Discovery Is Big Business. "With so much work done via e-mail, instant messaging and other online platforms, 'nothing's in the file cabinets anymore,'" he writes, quoting Michele Lange, staff attorney for legal technologies at Kroll Ontrack. It's an interesting article and a good overview of the explosive growth happening in the e-discovery arena. What struck me about the article though was the fact it didn't mention Web 2.0 companies and services — also experiencing explosive growth and uptake. Ms Lange is of course correct that nothing is in file cabinets anymore, but increasingly — with employees using Web mail, blogs, wikis, online news aggregators, social bookmarking, and other hosted means of communication and knowledge management for business purposes (which might violate a technology use policy, but that doesn't mean it doesn't happen) — material of great relevance to a legal dispute might not be anywhere under a litigant's direct control.
I hear the wheels turning in the heads of our trial court litigator readers: what I'm describing has some competing aspects. On the one hand, it lets a party respond to a discovery request by saying, gee, we'd be happy to give you that but we just don't have it. On the other, someone, a third party, does have it, and things that might ordinarily be known about and subjected to a document (non)retention policy can and probably will persist in that third party's database.
The article talks about companies employing e-discovery firms proactively, so as not to have to scramble or be caught unawares when the inevitable discovery requests roll in. (Included factoid: "The average company bigger than $1 billion is wrestling with 147 lawsuits.") In this vein, it concludes with Gerald Massey of Fios speculating, "The names we'll associate with the services we provide in three, four, five years from now will be like IBM and EMC and Oracle." I think that's right, but I wonder too if (and doubt whether) many Web 2.0 companies have tried to factor responding to third party discovery into their cost of doing business. By definition, they are bound to be subjected to the expense and inconvenience of more subpoenas duces tecum than would otherwise be the case.
Also related: part 1 and part 2 of my recent appearance on The M Show, where I discuss the procedural, third party discovery aspects of the government's COPA-related subpenas to search companies.
Another Way to Look at the Intersection of Web 2.0 and Law 2.0
The Infectious Greed blog has a post called "Web 2.0 as Law 2.0" in which Paul Kedrosky's notes his growing discomfort with the way Web 2.0 company names can be combined in ways that sound like names of law firms.
The Employment Law Alliance (self-described without blushing as "2,000 of the finest employment and labor lawyers from more than 50 nations") today released the results of a poll on "Blogging and the American Workplace." Though I don't yet see the report or a press release on the ELA site, the pertinent details are summarized here: Work related blogs proliferate. The gist, if you trust the methodology and/or sample:
at least 5% of U.S. workers are blogging; and
15% of U.S. employers have "specific policies addressing work-related blogging."
There's more, go read. Though I haven't seen the actual results yet, I have a number of questions and potential areas of concern. First, it doesn't sound to me from the summary like the survey made an effort to distinguish between purely personal blogging, at one end of the spectrum, and officially sanctioned blogging, at the other. By the same token, it doesn't sound like it begins to address the enormous gray area between the two poles: i.e., blogging that can be sometimes personal, sometimes work-related (like, say, people are), and which may or may not be acknowledged or embraced by an employer. The survey also seems like it could be hyper-focused on issues like whether an employee's blog might include "confidential or proprietary information concerning the employer," "damaging, embarrassing, negative information about the employer," and "criticism or satire about employers, co-workers, supervisors, customers, or clients," while ignoring the myriad potential benefits that also go along with a blogging work force.
I was surprised the survey found 15% of the participants' employers had an actual policy; I would have guessed lower. I was also surprised their research shows "as many as 10 million bloggers among the American workforce;" I would have guessed higher. Whatever my quibbles and questions, I agree with the ELA's implicit suggestion that companies and their lawyers should be paying attention to the impact of employee blogs. I would just urge them to endeavor to address the overall picture, and not limit themselves to a knee-jerk pouring of cold water on potential IP and liability fires; it's bound to splash on PR and marketing ones better left to rage. (Put another way: anyone have 2,000 copies of The Cluetrain Manifesto and/or Gonzo Marketing handy? For dessert: might I suggest a little World of Ends and Long Tail?)
[Update:] I wanted to clarify this is not intended as a criticism of the ELA, its members, or this survey. In fact, I applaud the organization for recognizing an important area of discussion, and adding to the discussion with its polling. I've chatted often with at least one ELA member, my colleague Sara Begley, who understands these nuances perfectly. It's worth emphasizing that I've only looked at a summary of the survey and its results, and — though my suggested reading list is an excellent one, if I do say so myself ;) — that it's highly unlikely Sara is alone in her insights.
[Update:] Related information is now available on the ELA site, including seven pages of charts (PDF). Among the additional items reported:
"Among workers employed by companies with blogging policies, 18% say that the policy encourages employees to promote the company's business or reputation on their blogs."
"49% of American workers employed by companies with blogging policies report that the policy distinguishes between blogging done from the employer's computer system and blogging done from home or other non-workplace locations."
Austin American-Statesman, Judge takes Congress to task in bankruptcy case. Among the interesting aspects of the article is its mention of the role of the blawgosphere in propagating the discussion. Though I came up fairly empty with related — "monroe bankruptcy" — searches in Technorati and Feedster, I did find more from Steve Jakubowski.
If you're a regular reader you'll already know that we here at Between Lawyers are big believers in RSS, and the power it holds to convey information to lawyers (and the rest of the world, of course). The problem with RSS is that it's still too darn complicated for the average lawyer to use. That's why many blogs are using services like FeedBlitz, to make sure readers who don't "get" RSS can still read blog posts via e-mail.
Today, in How RSS Can Bust Through, Dave Winer responds to VC Fred Wilson's comment that "RSS has to become brain-dead simple to use." He's absolutely right -- in order to get to the point where RSS becomes easy to use, it's going to require a pretty big shift in the way RSS is currently handled on the Internet.
Maybe the answer lies (somewhat) in reading lists, which you may see us talking about here in the near future.
If you want to hear some more of my thoughts on where technology is taking the practice of law, I'm interviewed as part of a new podcast from Thomson West and locatable here as episode 2.
Tom and I have been discussing and starting to work on a podcast series that we hope to launch by the first of March.
destinationCRM.com, A New Platform Could Power Up Corporate Blogging; iUpload has a product that "integrates with Salesforce.com and NetSuite, and includes an editorial approval option, compliance reporting, and additional security, according to the company."
Jeremy Pepper, Going for that 25 Percent: "Were those comments from Alaska Airlines? Were those comments from Tello employees or its PR firm? I don't know - but the IP addresses (while they can be spoofed) usually don't lie."
Denise Howell
Dennis M. Kennedy
Tom Mighell
Marty Schwimmer
Ernest Svenson
