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Denise Howell is a seasoned appellate and intellectual property litigator based in Los Angeles. Denise writes one of the first and most popular law-related blogs, Bag and Baggage, coined the term "blawg" and helped pioneer podcasting for lawyers. Microcontent obsessed since 2001, she is frequently quoted in the media on legal issues involving intellectual property and technology law. "Sound Policy" is Denise's show at IT Conversations, and it's also what she hopes results from the briefs she submits to court. Email Denise at 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.
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So — what should Nixon Peabody have done when its embarrassing firm non-theme song made its inevitable way onto the Web? (And into the atmosphere of countless homes and offices, as its hapless victims hum and mutter it against their will and better judgment?)
If they'd have asked me (or perhaps 95% of the over 1,000 people who have voted in the Volokh Conspiracy poll), I'd have told them the last thing they should be doing is invoking the DMCA. Instead I'd have recommended:
applying an appropriately liberal Creative Commons license,
holding a mashup contest, and
showcasing the winner and the top 9 runners up on the firm's home page.
The other side of the professional blogging coin is looking at the business ramification of making money with your blogging. This session will cover the things to consider and that you may regret if you wait to long to address: copyright protection, tax ramifications, managing personal vs. paid-for blogging, your site policies, and blogging ethics.
Here are my top ten legal issues pertinent to this discussion; what are yours?
1. Communications policies (your own, or someone else's which may apply)
2. Intellectual property (your own and third parties')
3. Indirect liability for third party acts
4. Civility
5. Ethics
6. Privacy
7. E-commerce
8. Data ownership, responsibilities
9. Minors
10. Special considerations for regulated businesses/industries
This might be better suited to Overlawyered than Between Lawyers, but I'm posting it here anyway because it's a great series of posts. One thing I don't see addressed: one of the most powerful features of Facebook (and a host of other social networking sites) is the fine-grained privacy control users have over the visibility their data. Often, only "friends" have access to the kinds of details George discusses. But, lots of people do make their data more generally visible. It's ironic that employment laws are such that though "the public" may be invited to view such information, lucrative damages awards or settlements could be associated with doing so in the context of employment or potential employment.
As more and better communication and collaboration functions move to the Web (under non-negotiated, vendor-centric terms of use), what are our obligations as both tech- and ethics-savvy lawyers? I for one am not about to give up Gmail. So, what's the best practice?
Shun Web services, you simply can't control the data? Use Web services only when you have specific, confidentiality and reliability guaranteeing service level agreements? Use Web services liberally, but acquaint yourself with the applicable terms of use and make sure clients are amenable?
Yet Another Use For Social Media: Narrowing The Defendant List
Blogger co-founder Evan Williams Twitters: "Dear person from law firm who wants to find the right person to threaten to sue at Blogger.com: Nope, not me."
I was listening yesterday to the terrific CalacanisCast interview with Dan Albritton of iminlikewithyou.com, and was struck yet again by the way indicia of reputation, trustworthiness, and credibility are shifting and quantifying. I'm not sure what tomorrow's AV rating will look like, but I suspect it will be less subjective, more egalitarian, and more task-oriented.
Defining community and loosely-joined individuals and interest groups
Community goals and governance (or lack thereof)
External innovation communities such as Procter & Gamble's and ownership issues
Intellectual and liability concerns for company-owned or associated communities
Whether an initiative similar to the Creative Commons movement has or is in the process of emerging
Ownership issues and risk-minimization around products or services that emerge from external ideas
Variations on open source licenses
Individual rights and protections for community contributors and participants
Anonymity and accountability
Nefarious community exploitation: gaming, hacking, spamming
Trust and reputation management
The use of trademark law to use and manage community involvement; selective enforcement, the expansion of certification marks
Insurance industry mechanisms and models
Defamation
Company-sponsored (and owned) communities, and the actions taken by participants who find the terms and conditions of such initiatives too draconian
"Innovator's dilemma" management and patent strategy and the tension between old, successful products and those developed with help from outsourced customer communities
Our rescheduled conference call in anticipation of Community 2.0 (details here) takes place today at 1:00 p.m. PST/3:00 p.m. EST. Call-in details are here, please join us if you are interested.
In connection with our session at the the upcoming Community 2.0 conference, law professor Mike Madison and I will be hosting a public conference call on Monday, February 26 beginning at 1:00 p.m. PST, and we'd love your participation to help us hone in on the ownership considerations (IP; attention; identity), and issues of governance and liability, most critical to the creation, maintenance, and long-term health of business communities. The call will be recorded and made available as a podcast from The Future of Communities blog. You can join us as follows:
From Skype: +990008275785861
From a regular phone (long distance costs apply): US: 1-605-475-8590
In Europe, call: Germany 01805 00 7620 UK 0870 738 0763
[Update, Monday 2/26 @ 1:15 p.m.:] Unfortunately, we had problems with the conferencing service lined up to support this, so are having to reschedule. I'll post the new date, time, and call-in details once they're available, sorry for the delay.
David Lat, on the New York Post's Lawyers, Fun, & Money piece (about midlevel attorneys leaving large firms): "As the Book of Revelation teaches, when Fortune 500 document dumps are being reviewed by Cardozo rather than Columbia grads, the end is near."
Attorney and Chicago area blogger Mazyar M. Hedayat has drafted and released a blogging policy for the DuPage County Bar Association, "as well as any committee, firm, or bar association thinking of establishing blogs or wikis in order to foster communication with their members or the public." It is a concise nine points in length, and I like every one of them:
#1 know and follow bar association guidelines for conduct, as well as the rules of good legal writing. no need to use Blue Book citations, but be accurate in your posts: others will look to them as a source of information and news, if not actual research.
#2 be mindful of what you write. remember that you have an audience.
#3 identify yourself and write in first person. make it clear that you are not necessarily speaking for the bar association as a whole. be sure to disclose any information necessary to keep your statements from being misleading. use the following disclaimer on your blog or wiki with respect to all posts:
unless indicated to the contrary posts do not reflect the views of the bar association, its members, executives, staff, board, or committees, and are the opinion of the writer
#4 respect copyright and fair use. do not plagiarize. give credit where due by citing to the author of a statement or passage.
#5 do not reveal confidential information that could result in liability to yourself, your committee, other bar association members, or the bar association itself.
#6 do not comment on active cases or client matters by name except with the approval of those referred to in the post.
#7 do not use ethnic slurs, insults, or obscenity. Avoid writing about inflammatory topics solely to pique prurient interests.
#8 always try to add to a discussion constructively and ultimately to add value. do not let your ego get in the way. you are here for the good of the bar association after all.
#9 have fun. a blog or wiki can be loads of fun and a terrific way to share the best of your committee with the world.
Martin Veitch, The Inquirer: "[T]he day that the language of the billiards hall reaches such depths here, we shall be forced to leave the United Kingdom. "
Unless you're our colleague Ernie, that is: "I don't want to put any disclaimers on my blog," said Ernest Svenson, a blogger better know as Ernie the Attorney. "It's a buy-in to a mindset that I want to go away." Well said, as to what should by rights be able to remain unsaid.
Law Underground is: "a non-profit legal information project," which does (and will) aggregate topical information provided by volunteer lawyers and law students.
This might sound a bit acronym-soupy and cryptic, but the proverbial lightbulb is over my head at the moment, and I think it will have more impact if you attempt to understand why yourself rather than having me explain. So first, please listen to the current episode of the Gillmor Gang:
Then: consider how a virtual law firm (or a very forward thinking conventional one) might be in the perfect position to leapfrog ahead by eliminating the CRM (customer relationship management) line item from its technology and marketing budgets, and instead adopting a client driven, "vendor relationship management" approach to business development.
WisBlawg's Bonnie Shucha reports that LexisNexis is now including a lengthy list of blogs (including this one) in its Newstex database. Yet another example of the paid online legal database companies tying their business models to the location of relevant information that already is online for free. Makes me wonder how long it will take before a well designed, ad-supported free legal search competitor comes in and seriously syphons off subscribers. Google undoubtedly does this already, even though it doesn't (yet) do vertical search.
History in the making and participatory law in action — behold LawClinic.TV. From the press release: "Fordham University School of Law today became the first academic institution to launch a video blog or 'vlog.' The vlog, LawClinic.TV, features one-to-two minute videos of clinical law professors and students sharing their thoughts on clinical law education and written commentary from Fordham’s director of clinical education, Professor Ian Weinstein."
It has been fascinating in the last several years to watch what has unfolded as the world's first online war. The fact that stories can be and are told and read globally by representatives of all of the parties involved — journalists, soldiers, natives to occupation zones — has fundamentally changed the way public opinion develops (and thus, at least to some extent, the way strategic policy is formed).
But for those in the military, as is true of so much they do, their online activities take place in an environment of uncertainty and danger. As the Jacksonville Daily News reports, though use of tools like MySpace is increasingly common, "DoD does not currently have a specific 'blogging' policy." This can leave soldiers like Matt Austin and his family and friends wondering what exactly has led to the curtailing of activities that provide a thin yet powerful lifeline home.
There's an excellent article at APC Magazine, warning businesses who lock down their Internet access that they're in danger of losing employees. But that's not all they're in danger of losing. There's a reason "digital natives" are so reliant on the 'Net they will resort to elaborate and policy-violating workarounds: they get things done there. They knowledge-gather. They connect. They market. They produce. What's at stake for businesses who fail to grok this goes far beyond recruiting and employee retention. I give any such outfit five years of soulless survival, at the outside. (Via Techmeme)
On February 26, 2003, Robert Scoble penned (keyboarded?) his Corporate Weblog Manifesto, possibly the single most important thing business people can read (other than, of course, Robert's book) to understand what it takes to navigate and thrive in the blogosphere. Over time there have been a couple of addendums (I may be missing some), which also are key reading. Today, Robert has more in the same vein with Rule #1: Don’t pull down posts — a real world cautionary tale that warrants taking to heart.
CFO.com, When Talk Isn't Cheap: "It's not always employees whose online postings put companies in a tough spot."
Also, here's Tom Keating'srundown of the referenced June '06 survey: "2006 Proofpoint Survey Finds that 7.1% of Large US Companies Fired Employees for Blogging and Message Board Infractions In Last 12 Months."
Indianapolis Star columnist Dana Knight has a thorough and balanced piece on employee blogging: Words of caution. There's a little bit of everything there, including approaches of different companies, blogs and marketing, recent Pew blogging survey results, and do's and don'ts for employers and employees.
The Yale Law Journal is looking for submissions on topics "both contentious and suitable to thorough and engaging discussion." If you have something in mind you'd better get a move on, the deadline is August 1.
While that bit of information is interesting in its own right, perhaps more interesting is the way I know about it: YLJ went out of its way to thank blawger Sean Sirrine, and ask him once again to help get the word out about the opportunity (which he did). Just another example of blawgs throwing a courtyard bazaar at the ivory tower and fostering a culture of participatory law. I can't think of a more effective way to engage those who might have something intriguing to say.
Just out this week, Socialtext Open: "Socialtext Open is released under a standard open source license, and contains all of Socialtext's enterprise grade code aside from enterprise management and enterprise integration tools."
Wikis at work,
BEA, IBM, Oracle, SAP Ramp SOA Spec Efforts: "The group also has setup what they call a 'vendor-neutral Web site, designed as a wiki' they will use to collaborate, communicate and gain feedback from developers. There's a place for news, white papers, public specifications and access to information on early deployments."
Illustrating the approaches toward blogging policies should be context-specific and not cookie cutter:
Sun Microsystems CEO Jonathan Schwartz: "Our blogging policy is 'Be authentic. Period.'" (It's been awhile since I was showing up bright eyed and bushy tailed for Larry Sonsini's Securities Regs class in law school, but I'd be willing to bet Sun's securities lawyers might want a qualifier or two.)
Summer camps, with camper identities to protect and other considerations, might understandably go a different route. That article also highlights, and Dennis pointed out (by pointing here) on our mailing list, the camps' attempts to police bloggy uses of their trademarks. I'll have to defer to Marty on this but what they're concerned about sounds like nominative fair use.
Corporate blogging aficionista Debbie Weil is poised to unleash her Corporate Blogging Book on August 3. In the meantime she's offering freebies to tease and entice &mdash the complete first chapter, called "Top 20 Questions About Corporate Blogging," and, if you preorder at Amazon, the book's chart highlights — which you can check out at the book's site.
There's a slew of law related RSS feeds — for press releases and news articles related to "Deals," "People," "Prosecutions," "Lawsuits," "Awards/Rankings," and "Announcements" — at LawFuel.com.
A colleague recently asked me what concrete steps I thought an organization could take to help ensure the concepts underlying a blogging policy are actually understood and implemented. Bearing in mind I am so not an employment lawyer, I did have a few thoughts.
Blog. I suspect that companies pursuing their own blogging initiatives in addition to implementing policies intended to cover unsanctioned employee blogs will run into fewer problems with employee mistakes or misunderstandings. This is because the management and culture throughout the organization is bound to better grasp the process and related security and compliance issues. IMO, the best "training" occurs by example and widespread use.
Breathe. As I've pontificated here before, there's a pretty good case to be made that blogs and their ilk are
actually the least risky form of corporate communication. If a company adequately gets across the reasons it expects certain employee conduct with regard to external communications, confidential
information, and technology use, blogs, etc. are at least as "safe" as email and the phone; in fact, because people are more likely to understand up front these technologies are designed to accomplish wide and persistent information distribution, people are more likely to approach their use with caution and respect.
Mix. Organizations need to make sure their P.R./marketing and legal arms are communicating about how employees should be relaying work related information to third parties or the world at large, and they need to have an open-eyed appreciation of all the ways people might be or are using technology to do so. Brace yourself: P.R. and legal goals just might compete. Management needs to understand those conflicts and decide what resolution best fits what they're trying to accomplish (and what the law insists they accomplish).
Gawker, re posting (and substituting) thumbnails of Shiloh Nouvel Jolie-Pitt to illustrate coverage of how "exclusive" magazine photos had leaked to the Web: "[W]e can’t even keep track of what we are and aren’t allowed to do anymore." (The Gawker "Legal" tag is worth following.)
Dahlia Lithwick, Blawgs on a Roll: "The blogosphere thrives precisely because it exists at the interstices of the ivory tower and pop culture. As a result, it's the most fertile ground for cutting-edge law talk. " [via Bob Ambrogi]
Be sure not to miss the Memorial Day edition of Blawg Review this week, and get ready for next week's #60, to be hosted by our own Marty Schwimmer. (I picked a fine week to slack off on my blogging activity.* And WTF am I doing driving more traffic to Marty? Ah well.)
I've finally been getting around to reading some back issues of Wired Magazine this weekend, which is always a worthwhile thing to do. (My regular magazine reading consists of: Wired, Technology Review, Popular Science, Fast Company, MacAddict — Dennis, you should subscribe to this, it will take your MacBook usage and enjoyment to new heights — and any of the free, locally ad-supported, parent-focused pubs available at the grocery store and My Gym. Put that in your demographic pipe and smoke it.) There, I may have found an answer to Dennis' recent lament, "I doubt that anyone has more trouble with or dislikes cell phone service more than I do." It's the MVNO, "mobile virtual network operator." What I do know thanks to Wired — Sky Dayton Gets Mobile — is that MVNOs, which piggy back on the carriers' spectrum and resell wireless services under their own name, will be a breath of fresh air to those frustrated by the products, features, and plans available from the big boys in the world of cellular services. What I don't know (and I'd love it if someone could enlighten me) is whether MVNOs, in addition to satisfying our longing for variety and flexibility, can do anything to offer improved reliability and/or speed; since their service backbone is the infrastructure of the existing cellular networks, they may just be putting lipstick on a pig.
The Wired article is several months old now (January oops, March; reading January now), and though it got me thorougly jazzed to own a Helio phone named after Y.T. from Snow Crash, it looks like only Hiro ultimately got the nod, and then with a spelling change (*sigh*). Ah well, it still is a terribly attractive notion to hitch one's cellular service wagon to a company that thinks of itself as "a gang of miltant consumers who barricade themselves inside a carrier's headquarters and refuse to leave until they get what they want." Though Helio is clearly targeting someone younger than me with more free time (or maybe a different way of looking at it is they're going after those inclined to post to Slashdot and Digg rather than just followalong), I find the whole notion refreshing, and look forward to more — whether from Helio or another MVNO.
Great marketing partnership for MySpace by the way. Though I'd probably never create a MySpace page on my own, if my phone were well integrated with it I just might. Also: when was the last time you encountered a cellular service provider with a blog?
Our co-blogger Dennis Kennedy is quoted today in the New York Times: Interns? No Bloggers Need Apply. Dennis' interesting, and I'm sure far more nuanced, discussion with reporter Anna Bahney was distilled down to a truth about modern attitudes toward personal values and employment — "It's like, 'This is who I am. Consequences are what they are. I'll go work for someone who doesn't have a problem with it.'" Just as she missed the chance to round out her piece with more of Dennis' well-considered insights on this topic, the reporter missed the opportunity to tell the more accurate, important, and complicated story. Specifically, Ms. Bahney took the approach that the issue of individuals, their blogs, and their employers, is one of youth culture vs. Killjoy Lawyer III and co. E.g.:
[T]he line between what is public and what is private is increasingly fuzzy for young people comfortable with broadcasting nearly every aspect of their lives on the Web, posting pictures of their grandmother at graduation next to one of them eating whipped cream off a woman's belly. For them, shifting from a like-minded audience of peers to an intergenerational, hierarchical workplace can be jarring.
(Emphasis added.) While I appreciate the clever juxtaposition, and the point that there undeniably is a generation gap between the online mores of under-thirty-somethings and their elders, to suggest that boundary blurring of this sort is an issue unique to the young is to ignore at least the last six years of Web-enabled communications. And to note almost in passing that "some bloggers" say "[a] blog and a job don't necessarily have to clash," is to ignore at least three years worth (and counting) of seismic shift in corporate attitudes toward communications with the outside world. Yes, it's a slow change. But to suggest the change isn't happening — "No Bloggers Need Apply" — misses the boat, and here, I fear, resulted in an alarmist headline and a story that attempted to paint the varied picture of today's business attitudes and relationships with a two-color palette.
Legal publishing conglomerate Thomson West is venturing into the podcasting arena with Westcast. I don't know what it says about West's perceptions of this endeavor that at the moment the podcast doesn't have its own page, but instead lives in the sidebar of West's News Room. The show does, however, have a feed, and three episodes in the can — covering bankruptcy reform, technology trends, and the Supreme Court's Kelo (eminent domain) decision, respectively.
Spherepromises not only excellent blog search but a bookmarklet that will "change your life " ("Note that the Sphere It! Bookmarklet finds blog posts related to the content of the page you're reading, instead of just using links...").
Looking for another unique, technologically attuned way to market yourself, firm, and/or practice? You could always try gaming MySpace. Or Digg, for that matter. (Please know I'm just kidding, and think those who game social networking sites are a life form on the same sub-primate order as spammers.)
Paul McNamara at Network Worldthinksthis post by Marquette law professor Eric Goldman, critiquing recent lawsuits against Yahoo!, may be defamatory, because the post says Professor Goldman "think[s] these lawsuits are nothing more than a shakedown for cash," and calls the plaintiffs "extortionists." According to Mr. McNamara, "[Professor Goldman's] words practically scream libel." But, as Mr. McNamara clarifies, a lawyer for the Media Law Resource Center assessed things as follows:
In doing a quick search, I found court decisions holding both ways when dealing with similar accusations of 'extortion,' ... The legal issue would likely be whether the statements were actual imputations of a crime, or were 'rhetorical hyperbole,' essentially a statement of opinion, not of fact. The former could be considered libelous, while the latter could not.
Also notable is an observation from one of the plaintiffs' lawyers, Thomas More Marrone, about the amplification role the Web adds to the mix: "It's like a guy standing on a street corner talking to his friends except he's writing it down and disseminating it to hundreds, thousands, millions of people."
The moral, I suppose, is that if you're going to use an online medium to discuss others' potentially wrongful acts (and there's no getting around that a blog or podcast is an attractive place for commenting on disturbing conduct), a little attention to phrasing and characterization can wind up going a long way. (See also thesediscussions of the limited nature of the fair reporting privilege.)
Wired Magazine has a concise, pragmatic, and I daresay super-effective guide to producing and distributing online video. (VOD = video podcast/video on demand.) If you've been thinking about how cool it would be to do a firm or practice-oriented videocast, this is a great quick-start guide (with the added bonus it presumes you want to do this on a shoestring, which is no problem a-tall).
Expressly include blogging within the same rules that govern acceptable use of email and Internet;
Prohibit employees from disclosing or discussing any confidential or proprietary information;
Remind employees that they are expected to be respectful of the company, its employees, its customers and its competitors; and are not to post material that contains harassing, discriminatory or threatening content, no matter when or where the blogging is conducted:
Require employees to use their real name, not an alias, and; employees must make it clear that the views they express online are their own and not those of the employer. This policy adds credibility to the blog, as it will be viewed by readers as an independent source of information;
Require that any reader responses to a blog be edited for profanity, harassing, discriminatory or threatening content directed toward the company, its employees, its customers, and its competitors; and
Create an agreement with each blogger as to the purpose of the blog, the amount of company time you will allow the blogger to devote to the practice, and any necessary restrictions regarding overtime compensation for off-site blogging.
Interesting. As far as I know the overtime issue has not really surfaced yet, but I would think it's bound to play an evidentiary role in cases where classification of employees as exempt or nonexempt is an issue.
The Wiki-Law concept is pretty cool on all fronts, but among its nicest features is its "Digg-for-law-types" aspect. In other words, users submit articles, readers vote. Those with the most votes and comments get sorted to the front page. Still obviously very much a work in process, but I like the idea.
There are a host of reasons (and probably a host of laws) why you wouldn't expect a prosecutor in a criminal case to blog tacky comments about opposing counsel and potentially inadmissible and prejudicial information about a defendant. Notwithstanding, some recent events have prompted the San Francisco D.A.'s office to specify "that criminal cases and office business should not be mentioned on the Internet."
I loved Dennis' last post and the posts it referenced. More in the same vein was discussed in yesterday's Wall Street Journal, specifically an article by William M. Bulkeley called The Inside View (subscription req'd), on corporate America joining the blogosphere. Among the companies and blogs discussed are Thomas Nelson Publishing and its CEO Michael Hyatt:
[Mr. Hyatt] posted a proposed company policy on blogging on his personal blog and then changed it in response to posted suggestions, cutting the rules to 10 from 14 by combining several into "Obey the law."
Mr. Hyatt's March '05 post on the subject and the revised policy are available on his Working Smart blog. Thomas Nelson doesn't host its employees' blogs (see the policy on that point), but it does aggregate them, here.
[Update:] Jeffrey Treemconsiders the WSJ article, and points out the distinction between corporate and employee blogs (noting the largish and potentially legally challenging fuzzy area between).
Wired Magazine's April '06 issue has an appropriately engrossing series of articles about videogames. Particularly interesting for anyone who realizes that popular "recreational" technologies inevitably come to have critical significance in other arenas, including the workplace, a.k.a. (beam me up) The Enterprise:
You Play World of Warcraft? You're Hired!: "The day may not be far off when companies receive résumés that include a line reading 'level 60 tauren shaman in World of Warcraft.'"
When Virtual Worlds Collide: "All virtual worlds require a communication protocol that lets you talk with other people, a software platform that lets you build things on top of it, and a currency that enables trade. These three elements share one thing: a gravitational pull toward a common standard."
But whose? "YouTube co-founder Chad Hurley says in some cases, the same company is both uploading video and ordering YouTube to take it down. 'There's been a few examples of marketing departments uploading content directly to the site, while on the other side of the company their attorney is demanding we remove this content.'" From Cory Bergman, via Boing Boing.
For now, it is likely that the traditional defamation standards, including the private/public figure distinction, will continue to apply to defamation cases involving blogs. The very accessibility of blogs, however, may lead courts to reevaluate defamation law standards.
[Via Ian Best] She also looks at the protections afforded by Section 230 of the Communications Decency Act, and I agree with her that "the policies underlying Congress's enactment of the law may encourage courts to extend the provisions immunity to bloggers." (Context; more context.) Also by Jennifer, a more condensed piece on the same themes: Blogs Raise Thorny Legal Issues.
[Update]: This musty Bag and Baggage post is also on point, Are You A "Public Figure?" "Can the day be far off when a blogger will attempt to answer libel allegations . . . by pointing to the subject's Daypop and Blogdex numbers?" (Or the like; Technorati's just a baby you know, albeit a mighty precocious one.)
Many, maybe most, weblogs involve some combination of personal and professional material. In recognition of this fact, and in an effort to understand how people are striking this balance in the real world, BlogHer recently conducted a survey and gave a presentation at SXSW, entitled "We Got Naked, Now What? Blogging Naked at Work." From the panel description: "Can you open your kimono in one blog post, and wear a button-down shirt in another?"
Lisa Stonelive-blogged the panel, moderator Elisa Camahort gives this rundown of the survey results, and The Washington Post has this postscript. Among other things, the survey found the majority of the respondents "draw distinct boundaries between public and private information," and (perhaps accordingly?) "83 percent of professional bloggers who responded to BlogHer’s survey indicated that they had never received negative feedback to the personal opinions, feelings and experiences included on their business blogs." The survey also showed the respondents, whether they self-identified as more "personal" or "professional" bloggers, shared a tendency to exercise judgment and discretion as to subject matter:
The top subjects that were considered not suitable for business blogging include romantic/sexual feelings (84 percent), salary/income (77 percent), religious/spiritual beliefs (63 percent), and sexual orientation (57 percent). Surprisingly, the personal bloggers were also likely to consider salary/income (68 percent) and romantic/sexual feelings (50 percent) off-limits. In addition, personal bloggers showed reluctance to discuss feelings about events at work (54 percent).
Danny Sullivan has this thorough and link rich post describing Google's new program that enables its Book Search partners to sell works online. (Note the messages in BOLD CAPS, and read all the links.)
There's an intelligent if somewhat limited piece on employee blogging in the Northwest Indiana Times: Employees need to be careful if they blog. Missing from the article: anything concerning business blogging or blogging on the company nickel. Present in the article: a good quote from Charles Krugel: "With blogging, there is this idea about the Wild West and it being a renegade form of communication . . . But it's just another form of electronic communication."
I think it was in the March 3 edition of The Gillmor Gang that Steve Gillmor had some characteristically blunt and insightful commentary about the reluctance of corporate IT departments to embrace new technologies that are compelling but disruptive of the existing infrastructure. This can be both frustrating for users and counterproductive from a business standpoint. Against this backdrop I was interested to read Paul Chin's article in Intranet Journal,The Value of User Generated Content, Part 1. [Via Genie Tyburski] Part 1 puts the issue of things like blogs, wikis, and discussion groups (discussion groups? less relevant at the moment than podcasts, I would think) in a corporate IT person's context, comparing these media forms to the "engineered content" (apt phrase) that heretofore has populated intranets. Part 2 (still to come) will examine how "[i]n order to find a happy middle ground when using UGC, and not to appear overly controlling, a formal set of content posting guidelines should be agreed upon by both the intranet owners and users." (Emphasis mine.)
So, it seems that IT departments may be beginning to come to terms with "UGC" and its inevitability as part of the corporate environment. As to the important related policy decisions, though, I certainly hope the norm will be for these to be the ultimate province of other parts of the organization.
Alan Weinkrantz will be giving a corporate blogging strategies seminar in Tel Aviv, Israel on April 4. On the agenda, per the press release: "How to start a blogging initiative. What are the elements of a successful blog? What types of blogs should companies consider creating? What steps should companies take to set up a blog? What guidelines should companies have for bloggers? Establishing corporate blogging policies...," and generally how businesses can best use blogs "as a way to develop closer ties to all of their publics."
Also interesting in light of current news stories and discussion is this from the press release:
'A comprehensive blog communications strategy includes targeting specific blogs with relevant information and keeping a close eye on what influential bloggers are saying about one's business, brand, products, competitors or industry issues,' added Rakefet Sudri, sales and marketing manager of PR Newswire Israel. 'PR Newswire has been assisting our customers in targeting and monitoring blogs for some time now. ...'
If you've been following our posts concerning business blogging issues and blogging policies, or if you've just been paying attention to mainstream reporting over the last year or so, you know there has been a good deal of handwringing (some media prompted, some lawyer prompted, some both) about the unique or remarkable legal perils that weblogs and other Web-oriented communication tools supposedly pose for businesses. It was clear to me at last week's New Communications Forum that this meme has had an impact. Even in that very blog-friendly environment, concerns and uncertainties about the legal risks of wholly or partly unfiltered employee communications with the outside world were much in evidence.
Something interesting occurred to me along these lines in the course of being interviewed by Debbie Weil for her podcast. Specifically, of all the various communication tools available to employees, whether while on the job or off the job or both, blogging may actually be the least risky and most innocuous from a corporate risk management standpoint. Consider first that people commonly assume phone, email, cocktail party, and/or hallway discussions are invisible, transitory, and/or confidential. Any one of those situations is thus fairly likely to involve remarks that the speaker, rightly or wrongly, does not expect to come back to haunt them in a public way. Then consider the extent to which public blogs, podcasts, and similar tools are conceptually different from the get-go. The accessible nature of the information put out by these means is part of of the compact. Except in the limited case of behind-the-firewall blogging or podcasting, people using these tools are much more likely to comprehend that a broad audience is possible (usually, desired), and to tailor their communications accordingly.
Unlike a great deal of the reporting I read about the dangers and pitfalls of blogging, I have a hard time isolating any primary legal problems that inevitably go along with employees using communication tools of any sort. Instead, the potential problems are a direct product of the extent to which clear expectations have been set, and the extent to which a particular employee is oblivious or doesn't care. Though there are a host of situations whereby an employee's blog, podcast, photo, or video clip could conceivably subject an employer to third party liability — inadvertent disclosure of confidential or regulated information; harassment, discrimination, or other civil rights violations; false advertising or other unfair competition concerns; and much more — not only are none of them unique to online communications, but it seems to me those using such methods would be almost certain to appreciate that what they're doing is not "private."
Picture a world in which it was a newsworthy event every time someone was fired due to something said in an email or a hallway. Or every time company secrets were clandestinely or inadvertently shared over the phone or over drinks. You'd never hear about the dangers and pitfalls of blogging, because it would constitute such a small part of the overall "problem." (And we could all get back to concentrating on what's reallyimportant.)
[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.
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
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.
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.)
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.
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.
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."
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."
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?
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."
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.
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 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?)
Something about this time of year (particularly wicked eggnog?) always gets me thinking about what the next year will hold. So far, I've decided the following are foregone conclusions:
Like AKMA and Dennis (and probably everyone who posts with any degree of regularity — and my regularity is anything but), I too get asked about time, time, time, all the time. No one has time. I'm certainly no exception.
Which is why I thought it was pretty funny when Sandra Rosenzweig, the California Lawyer's technology editor, included me in her send recently to "the ten most efficient people I know." (Sandra, we need to see about getting you out more often.) She's doing a story on time management and wanted tips. When I got a little time, I sent her some. Here they are:
Pick the 1 or 2 devices you like best and consolidate your
activities on them. If you can manage most aspects of your life with
one or maybe two devices, you can do almost anything from almost
anywhere and make efficient use of downtime. In my case they're a
cell phone and a PowerBook. You could get away with a laptop alone,
using Skype or Gizmo to handle the phone part, but WiFi penetration
isn't yet ubiquitous and cheap enough to make that work well, and I
spend too much time in the car to make the laptop my only means of
audio communication. Key to this is getting a phone that is both full
featured and easy enough to use that the features don't just languish.
Aside from its traditional function, the features I use the most on
my phone are email and the camera. With this system, I've never felt
the need for a Blackberry or a Treo.
Get a Gmail account. If it makes sense, get several. Eliminating time once spent searching for and/or attempting to organize email is
enormously helpful.
Try making all online communications (e.g., writing and responding
to emails, blogging) a secondary priority, turning to them only when
the day's "offline" communication tasks (meetings, calls, errands) are
complete. Most online communications are meant to be asynchronous
(i.e., unlike offline communications, the participants need not
participate simultaneously). Take advantage. (Can you tell I'm not a
big IM-er? This is why.)
Make your errands come to you rather than vice versa. E.g., four
words that will change your life (if they have not already done so):
home delivery dry cleaning.
Read The Support Economy, then
do your best to help it along (both in the services you use and in
those you may provide).
So that's how I find the occasional two minutes to blog. Tiny investment, immediate dividends. Speaking of which, thanks Sandra, for getting that bloggers who contribute to such pieces are genetically hardwired not to wait for the print production schedule to run its course before posting their bit; that's what the next two spare minutes are for.
IBM now has both a blogging policy and a podcasting policy. PC Advisor, IBM employees play with podcasting: "Then it sat back to see what IBM staffers would create."
Where have you gone, Joe Dimaggio...? Wait — wrong generation. Where have you gone, Article III Groupie? (A.k.a. Asst. U.S. Attorney David Lat.) We hardly knew ye. This article from Amy Klein at a New Jersey newspaper suggests that Underneath Their Robes has vanished from view due to discomfort or discomfiture on the part of the Groupie, the Groupie's employer, or both. Whatever the cause, the New Yorker article linked above ran yesterday, and apparently by 5:00 p.m. over a year's worth irascible irony was no more. The *still* anonymous editor of Blawg Review offers this tribute. (He or she emailed that he or she thought I might have been A3G, which I took as a big compliment; would that I had A3G's unflagging wit and fervor for the federal bench.) And the rest of the blog- and blawgospheres are rending their hearts and garments as well. Howard Bashman, who has been followingthestoryclosely (provinghimselfaGroupiegroupietothecoreofhisbeing), had this headline this evening while pointing to a story about a cross-dressing policeman: At least he wasn't blogging like a woman.
Dennis Kennedy in the New York Times today on metadata, Beware Your Trail of Digital Fingerprints: "If you take the time to educate yourself a little and know the issues, you can avoid problems pretty easily." (I'm less sanguine about that for the nonbusiness or small business user, whose document distribution habits aren't being scrutinized by a department of minions dedicated to avoiding these sorts of snafus. How many users do you know, for example, who have the time or inclination to make heads or tails of these search results?)
The new FindLaw homepages — one geared toward the legal profession and one geared toward everyone else — go live tomorrow but you can preview them now. They're considerably cleaner — less cluttered, more usable. Looks like a most welcome upgrade. Thanks to FindLaw's Scott Kinney for the heads up.
Apple, Creating Video Podcasts on Mac OS X: "The next generation of podcasting has arrived. Now you can create video podcasts and have them posted in the iTunes Podcast Directory for millions to view and download to their iPods." (Via Podcasting News)
The folks at Lulu have come up with The Blooker Prize, "the world's first literary prize devoted to 'blooks': books based on blogs or websites." And don't miss the Blooker Blog.
Earlier this week, Professor Bainbridge (and others; see the links at the end of the good Professor's post) blogged a conference call to which they were invited, featuring RNC Chairman Ken Mehlman on the Harriet Miers nomination. From Professor Bainbridge: "It was a lot of assurances but not a lot of facts. And facts are what we need." From the Financial Times: "Within minutes, bloggers posted their reaction to the call: most were unpersuaded."
When I set up my Google News alert for the name of my law firm, and added a similar entry to my Technorati watchlist, I thought it was mostly to keep an eye on what people were saying about the firm. Turns out, this is a pretty great way to stay more current on what things people in the law firm are doing — a potentially impossible task when you're talking something like 1,000 lawyers. Thus did I learn that:
Neither is something that would have filtered through the mass of internal email I receive. Both hit my radar instead because I actually pay attention to things I'm affirmatively looking for. I'm glad they did because both are topics I'm interested in.
For anyone fearful of being overwhelmed by their queries and subscriptions (and it's a very well placed fear): just follow Kevin Heller'slead. And for God's sake, use the "download most recent show only" option in iTunes. Your peace of mind will be tangible.
I expect people (Tom?) do this a lot, I just noticed it this morning and realized I do it all the time: thinking in search. What it is: absently stringing together queries in your head that you need to plug in the next time you're in front of a search engine, in order to get things done in work and life. At the moment, mine have to do with an obscure California statute, and Snoopy.
'Twas the night before Zeitgeist, when all through the fog,
Not a creature was stirring, not even a blawg.
The shingles were hung on the Web with such care,
In hope that Saint BusDev soon would be there.
When out in the Ninth there arose such a clatter,
(And not just 'cause the Supremes think us Mad as a Hatter).
On over to Howard's I clicked (without Flash),
Tore into the case, and turned down the mash.
It took a few moments, though I'm far from deaf,
for the file to load up ('twas a cursed PDF).
When, what to my wondering eyes should appear,
A lustrous dissent! And the word "blawg" so clear!
With a little old author, so lively and hot,
I knew in a moment Kozinski I'd got.
More legal than eagles, his sources they came,
And he chided and scolded and called them by name!
"Through these lengthy proceedings, this judge, if he's that,
based his actions on something right out of a hat.
Not a case, not a statute, not treatise nor tome,
Was cited to justify where he did roam."
As questionable authorities before the wild hurricane fly,
when they meet with sound precedent, up to the sky,
So up to the house top, and on through the smog:
"Not a law review article — not even a blawg!"
And then, in a twinkling, I heard in the land,
the wailing and weeping of Unlearned Hand.
As I drew up my head, and was turning around,
I knew I had run the cause right to the ground.
Oh why, Judge Kozinski? Your timing does blow! Just 400, you know, will be all who will go!
A bundle of blawgers would give their eyeteeth,
to hear Larry and Barry and Sergey — (no Keith?).
Our hopes — how you've dashed them! The world now — how chary!
Of those at the end of your list they'll be wary.
Your nod to our presence, though lovely and fine,
Has put us, no bones, at the end of the line,
Of writers whose words perhaps warrant belief.
Your list does encircle our PageRanks like a wreath.
It has a broad reach, near as broad as the telly,
And leaves little blawgs in a heap sort of smelly.
We were clubby and pumped, a right jolly old meme,
With more juice when we posted than it might have seemed.
But a blink of your eye and a shake of your head,
Soon gave us to know we had much left to dread.
For together with those who think "blawg" is distasteful,
(And those who think words not in Webster's are wasteful),
I'm afraid that the finger is all that we've got,
From Google, re Zeitgeist — invited, we're not.
(Rick or Glenn, if you are, I just don't want to hear it.
There's already too much that's crushing my spirit.)
But I heard them exclaim, as they blawged late at night,
"If you're going to dis us, then link us — all right??"
Red Herring, Bloggers Face the Law: "Bloggers are an unstable subset of many categories, so it’s not always clear which precedents apply." (Thanks, Buzz!)
Here's the Supreme Court Watch Podcast from Alliance for Justice, featuring (per its press release) "live blogging [of the Roberts confirmation hearings] to provide response and commentary in real time, as well as daily wrap-up podcasts to provide further in-depth discussion and analysis available to listeners at any time, anywhere."
For those who missed it, Nico Pitney of Think ProgresscapturedSenator Grassley's comments about the nefarious blogosphere and its, in his mind, unfortunate but now unavoidable role in the judicial confirmation process. Good for a laugh. Sez Nico: "Bloggers, always characterizing documents and opining! Why wont they just stop paying attention and let Senators hold the trite 15-minute hearings they really want?"
Weblogs Work is running a series of interviews with blogging lawyers (I was one of the interviewees, and John Day's is also up): "Weblogs seem to work well for lawyers. We tried to find out why."
Some topical and timely law related podcasts you might want to check out:
Craig Williams and Robert Ambrogi have a new show called Coast to Coast, and are off to a great start with interviews from ABA President Michael S. Greco, who addresses concerns about the relevance of the ABA to solo and small firms (which he says are the fastest growing segment of the legal profession, and already are home to 80% of the practitioners in the U.S.), and Professor Erwin Chemerinsky, who discusses the Kelo case, and takes on the notion that there are any appellate jurists who do not, as part of their job descriptions, make law. Good show, looking forward to more. (Craig, fix your audio dude! Try Google Talk instead of Skype, I hear people are liking the audio quality. Also guys, your show needs its own feed.)
It's so good to see Ernie's ongoing posts and pictures from the New Orleans environs (true to form, Ernie doesn't let a little thing like a disaster of near Biblical proportions and attendant lack of electricity and regular 'Net access get in the way of his blogging). His reports — and those of people who are also getting the word out via Ernie's blog, like Dr. Gregory Henderson — are downright chilling, e.g.: "The looters had to be held back at gun point."
National Geographic's news service has put together this timely list of aid organizations that could use all of our help as Ernie, his neighbors, and the entire region begin to recover.
Here's FindLaw's lawyer marketing page, launched this week, including this article mentioning BL, quoting Tom, and weighing in on the "are blogs advertising" issue: "Do lawyers need to be concerned about the ethics rules on lawyer marketing when they blog? Well, yes. But no more so than in any other forum in which a lawyer writes or speaks."
Windows SharePoint Services Applications Template: Legal Document Review: "This application for Windows SharePoint Services is for company legal departments to post legal documents and templates, communicate requirements and processes, and provide contact information. It also features a legal document review tool for managing, prioritizing, and tracking employee requests to review contracts and documents." (Thanks, Steve!)
The Inquirer reports that "According to an NOP World survey, 50% of law firms in the UK are missing basic security measures and just under half have no budget dedicated to digital security..." (Thanks, Steve!)
Doug Soroccounpacks the Microsoft/Apple/iPod interface patent hype: "[F]olks need to do their research and understand the issues. If the claims don't cover it - it doesn't infringe." Ahh, that's better!
Littler Mendelson: DOOCES WILD: How Employers Can Survive the New Technological Poker Game of Employee Blogging. Poker game? Though I like the piece and think it takes a balanced and sensible approach to the issues it addresses, the title is yet another unfortunate example of the breathless, "omigod!" hype around businesses, employees, and the participatory Web. Employees with blogs or podcasts aren't playing poker any more or less than those with telephones, email, Skype, IM, or the myriad other means by which they might engage in conversation with those outside the workplace. I hate to metaphor-pick, but feel compelled to point out it's more apt to say that while blogging and podcasting might up the ante, the "game" has been around for centuries.
Boston University School of Law will hold a colloquium on February 11, 2006 "to consider the legal complexities facing the growing blogging community." More information is available from BU's Journal of Science and Technology Law, including a Call for Papers (PDF). Among the multifaceted issues on the table:
Are bloggers journalists? If so, what liabilities and privileges do
they have?
How do intellectual property laws affect what bloggers can or cannot post?
What are the ethical issues bloggers need to consider?
Can bloggers be fired for blogging?
How does the First Amendment apply to blogging?
How do jurisdictional boundaries, international and domestic, affect
the legal issues potentially raised by blogging?
How do any of these issues change with the introduction of
syndication, inline advertisements or tip jars, podcasting, or multiple
authors on a single blog?
Law student podcaster Darryl Fallin sent me the link to this story on Groklaw: Hey, This First To File Thing Is Scary. I'd love to see some commentary on this from the patent blawgers out there, like the folks at RethinkIP and Dennis Crouch. I understand there may be some misinformation about the "iPod interface" patent bubbling out from the coverage and commentary (see, er, hear TWiT#18 for more; by the way, Lulu sounds very cool), and I'd like to know more about the pending Patent Act of 2005 (conveniently enough, J. Matthew Buchanan has a post topic designed to help out in that regard).
If you know of anyone offering informed insights on the Microsoft/Apple/iPod story, and/or the proposed legislation, please comment and enlighten us.
Search and analyze the published opinions of Supreme Court nominee, Judge John G Roberts. On July 19, 2005, Judge John G. Roberts was nominated by President George W. Bush to fill the vacancy on the U.S. Supreme Court left by the retirement of Associate Justice Sandra Day O'Connor. In two years on the U.S. Court of Appeals for the District of Columbia Circuit, Judge Roberts has helped decide about 120 cases and written 49 published opinions.
I'm all a-tingle about this one because it's a brilliant marketing move if, like askSam, you offer information management tools, and because it fills a gap in access to and searchability of these opinions. To the extent judicial opinions are freely available online, they're generally PDFs or Word documents. As far as I know this is the first time someone has aggregated all the published Roberts opinions and made them freely and easily searchable.
SearchCIO has a report on executive("C")-level bloggers and says they "Follow the Rules." That's one way of looking at it. Another is, they're changing them.
The article is worth reading for many reasons, chief (sorry) among them being this quote from one ofJonathan Schwartz's April 1 entries, which I'd missed until now: "The downside of being an officer of a public corporation is that it's very difficult to write a good April Fools blog without feeling the need for serious engagement from the corporate legal team."
"[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."
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).
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.
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.
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:
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."
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.
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!
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."
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?
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.
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'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.
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.
AKMA, in 2003 (and again): "Bloggers, remember that thou art dust, and to dust thou shalt return. . . ."
Appropriately enough on the Sunday of Memorial Day weekend, John Boudreau of the Mercury News picked up the theme again: Pondering new puzzle: who inherits digital data. These are issues it makes sense for today's netizens and estate planning attorneys to pay attention to, e.g.: "People might even want to name a trustee to handle digital information, with instructions on what should be destroyed and who should gain access to e-mails and other material."
My nominee for clueful thought of the day from Bruce MacEwen: "Too flaky for your firm? If that's your reaction, are 'pens and paper' flaky? Email? Blogs and wikis are among the new tools in the technological arms race. Are you going to let your competitors steal a march?"
Shelley Powers has a new theme that rings a bit familiar. What do you think of her interpretation of the Creative Commons license we applied to Between Lawyers? If she's wrong, does she have a good parody argument? If we and/or Corante wanted to make sure the Web does not suddenly become a uniform, 3-column, red-white-and-gray place, would some minor adjustments to the notice announcing the BL CC license do the trick?
Birdfood for thought.
[Update:] Though Shelley makes some excellent points and she and I have been having fun, I had to go and get a little lecture-y about the risks of this kind of thing. And you should read the whole comment thread.
Dennis was kind enough to ask me to co-present with him at the LawTech Summit this afternoon in Palm Desert, not sure what the rest of the 'Tweeners are up to.
Dennis writes that, despite his far from meager intellect and his best efforts to be a good soldier, he doesn't "have a clue about what you can and can't do anymore" regarding being a lawyer and being on the Web, and prays for rules that make sense for 2005 and beyond. Amen to that. Two quick hits as well in response:
An old post of mine discussing the blurring of distinctions between the personal and professional online, and the failure of the ethical rules to keep up: "[W]hat's a 'blawger' to do?"
See my "should every lawyer and law firm" answer. If you're going to do it, write about what interests you. Write often. ("Often" is subjective.) Write briefly or lengthily as the subject warrants and time permits. Point to and comment on things that delight you, depress you, or piss you off. Float trial balloons, test secret theories. Observe and report, with common courtesy and discretion. List and chronicle. Above all, be yourself. Give yourself permission to be personal, quirky, and passionate. It's often not that easy (especially for those in the sometimes rigor bound profession of law), but it's invariably the best stuff you'll write.
Dennis makes good points in response to this. Blogging will make more relevant, quality legal information more readily available, which will put its own pressures on the practice. It will serve to make clients and members of the profession increasingly better informed about resources and options.
Early and visionary blawger Rory Perry, the clerk of the Supreme Court of West Virginia, coined a phrase a few years ago: "Building the new Blackstone, blog by blog." That will start to really come into its own. I expect the increasing uptake and popularity of blogging and related Web distribution tools will continue to break down barriers between the public and the legal field, and build bridges between its constituent parts.
Though people (myself included) often talk about the potential for blogs to humanize and improve the perception of a much maligned profession, the fact is they'll also continue to expose unpleasant and unsavory aspects too. There will be great opportunities for firms and other institutions to engage in real conversation and hopefully accomplish meaningful change about common areas of criticism and discontent. There likewise will be opportunities to look foolish, be ridiculed, and lose business and goodwill for firms and institutions that mistakenly conclude they can afford to turn a deaf ear to these voices.
Hard question, they're all important. I'll rank them though as follows.
First: Blogs. Ordinary, mostly nontechnical people like lawyers need an easy way to participate in online discourse, and it's important psychologically somehow (and useful from a practical standpoint) to have a "place" that's all your own.
Second: RSS. It's hard to separate this from #1, because the idea of blogging without syndication, especially given the capabilities of the blogging tools available today, is just silly. Syndication of not just text but audio and video makes whatever it is you have to say extremely user friendly. This is Good for all concerned.
Third: Collaborations among bloggers. It's hard to separate this from #1, because it's hard to blog in a vacuum. But active collaboration adds another layer that perhaps not everyone needs. If all your schedule permits is posting your insights from time to time to a (syndicated) blog, that's great. You're already collaborating and communicating across organizations and disciplines in a way you couldn't have done without blogging.
Not number of readers, and not dollars in the door. If it's useful to the writer and interesting or helpful to even a tiny universe of readers, it's a success. If you think that's too forgiving a definition, consider 1) the trivial or nonexistent cost of getting a blog out there, and 2) the ease and speed with which you can reach a literally global audience. Small investment + disproportionate return = success. Of course, the more time, thought, and effort you put in to creating something compelling, the greater will be the return.
No, it's inaccurately hyped. Main stream media likes to cover blogging for a variety of reasons, including that the volume is beginning to be such that it'd be irresponsible to ignore it. Blogging also is "new" enough that there's some shock and sensationalism to be milked from the coverage ("Your employees are blogging your company secrets! Film at 11:00"), and there's still the unfortunate tendency by media outlets to treat weblogs like something in the sky over Roswell, NM — interesting but hokey. The best writing about blogging is the product of those who have done their homework and/or have firsthand experience (e.g., BusinessWeek, Dan Gillmor, Online Journalism Review). And from those sorts of sources, you're less likely to get hype and more likely to get a straightforward assessment.
Any way I slice this question the answer is no, but I get there sort of circuitously.
Not every lawyer should have a blog, because not everyone is predisposed to processing and sharing information in the way blogs facilitate. Lawyers who answer "yes" to more than one of the following questions but don't have a blog should think about starting one:
Do you read or otherwise take in many materials related to your practice, above and beyond what strictly speaking you need to get through your daily workload?
Does your practice put you in places and situations that don't get much or any news coverage, but you think others might nonetheless find interesting or informative?
Do you email colleagues items you think they might want or need?
Do you make lists? (Mentally or otherwise.)
Do you spend much time using search engines?
Do you write about legal issues or developments for print publications or other outlets?
Do you hate the idea of keeping extraneous paper around, but like being able to find and refer to things you've read and found significant for one reason or another?
Do you like staying well informed about developments that affect your practice and your clients' lives and businesses?
Do you have a sense of humor?
Are there one or a few substantive areas of the law you know pretty well, or better yet, very well?
Are you sufficiently professional and comfortable in your skin that you will link generously to material — including competitors — that's not part of yourlawfirm.com without worrying that you'll never see that reader again?
Are you sufficiently professional and comfortable in your skin that you will publicly acknowledge and correct mistakes?
Do you think your clients, potential clients, and colleagues probably already get more email and paper mail than they'd like?
Are you less than thrilled with your ability to manage your conventional practice-related Web site and keep it up to date? Are you less than thrilled with its ability to get your message out to colleagues, clients, and potential clients?
Are you willing to engage in public discourse with people you don't yet know that will raise your profile and sharpen your writing and thinking, but might not translate directly or immediately into paying work?
Are you basically a good egg? (Lawyers who think hiding associate contact information is a good idea, for example, might not be the best candidates for blogging. Then again, it could prompt some sort of "born again" epiphany.)
Law firms are a different story. Before a firm decides to publish one or more weblogs, it and its prospective bloggers in residence (and I do hope they are "in residence," rather than commissioned for the purpose of generating weblog posts) had better be able to answer all of these questions affirmatively. Law firms (like all businesses) aren't a who, they're a what, and blogging (when done effectively) is a who-oriented pursuit. All the firms to date I've seen successfully embrace blogging are small or solo shops. I'm not saying a large firm can't do it, I just think there are more hurdles to overcome in that setting. Until weblogs are mainstream enough that thoughts like these are a quaint anachronism and people just know what works well and what doesn't, businesses (including law firms) should think hard about whether they've got what it takes to do a good "official" blog. If not, following in the footsteps of Microsoft, Sun, and Harvard is worth considered thought — i.e., we're not people but we've got people, spectacular ones, here they are. (I'm also assuming this question was aimed at public blogs. I think most law firms would save all kinds of time, money, and lawyer brain cells by replacing their existing intranets with a network of internal, syndicated, well-indexed and searchable blogs.)
Easy, effective, fast, flexible, well-organized, persistent, participatory, distributed communication at marginal cost. Non-weblog oriented Web tools have a tough time competing on any of these factors.
Exposure to a flattened cross-section of others' thoughts, musings, research, analyses, etc., to which you would otherwise be oblivious, some of which at any given moment is precisely relevant to whatever it is you need or want to be doing. (In other words, not just youroutboard brain, but everyone else's.)
I'm guessing there must be well over 1,000 weblogs maintained by legal professionals, given that the Blawg Ring includes some 650, and probably only a small percentage of those out there submit to or are listed in directories. If I'm right, this means more than a hundredfold increase in the number of legal weblogs since I started paying attention to such things in early 2002.
I see no sign of this growth slowing down, and no reason to think there can ever be "too many" weblogs of any kind, legal or otherwise. Every author or group of authors has perspective, knowledge, expertise, talent, interests, etc. that are totally unique, and of immeasurable value to those who want or need access to that precise informational blend. In other words, it's a great time to start a law oriented weblog. There's a considerable frame of reference for what people are already doing, yet enormous room for innovation and perhaps an infinite number of interesting niches to help fill.
To what extent is it appropriate for the online research of government officials and the judiciary to be underwritten by private commercial enterprise? Context. More. (And see Berring on "Infotainment.")
The NewPRWiki, a collaboration among some clueful PR professionals to share ideas and information, includes a list of resources aimed at legal issues related to business blogging.
Futher to our discussion here that blogging is not necessarily all that different from technological waters companies have been navigating for some time: Evan Brown has a write-up of a recent federal trial court decision that stands behind an employer's ability to fire those who violate its email policy.
My dad just let me know about this interview with Adobe's CEO Bruce Chizen in the San Francisco Chronicle. There's a lengthy discussion of his views on software piracy (he's "con"), including his hope that the U.S. Supreme Court winds up "making it illegal for companies like Grokster to share intellectual property."
Ouch. Maybe this was just a misstatement. (With all due respect to Mr. Chizen, whatever your views on P2P networks there's no getting around the fact the sense of this sentence could have been greatly improved by the addition of just one word, e.g.: "unlawfully share intellectual property," or, better and shorter, "share our intellectual property." A great deal of the intellectual property being shared on P2P networks is there because its creators want it there. Also problematic is the fact that based on this phrasing Mr. Chizen might be confused about just who is doing the sharing.) But misstatements like this from CEOs of major technology companies are just...sad. Maybe the rethink(ip) folks are right that in this day and age intellectual property law needs to become part of the standard educational curriculum.
Bruce MacEwen recently attended a couple of events generally reserved for insiders in the arena of law practice management. Except that Bruce attended these as an acknowledged blogger-in-residence, and has blogged his detailed reports of the proceedings. This is a classic example of the kind of information main stream media outlets can't or won't cover (and specialized media traditionally covers at a snail's pace), but that can be of great interest to a widely dispersed group of people who otherwise would have no way of taking part. So if that's you, go check out:
Tom Zeller in the New York Times, When the Blogger Blogs, Can the Employer Intervene?: "None of this, of course, answers the question of where the status of employee ends and that of private citizen begins." That's the part of all this I find the most intriguing. (See alsoWorthwhile Magazine.)
The article quotes our neighbor and Corante COO Stowe Boyd, who isn't happy about the conclusions to be drawn: be aware that an employer might react negatively to something, or blog anonymously. Me? I like the comment from Technorati's Adam Hertz with which the article wraps up. It has wisdom for all concerned:
"I had a high school teacher,' he recalled, 'who used to say 'I have only two rules: Don't roller-skate in the hallway and don't be a damn fool."
Today brings news that a group of bloggers has submitted an amicus brief in the writ proceedings concerning Apple's efforts to discover the sources of certain rumor site stories. As far as I know this is the first time bloggers have banded together to use the legal process to weigh in on a pending legal issue — in addition to blogging about it, of course.
[Update] Thanks to xrlq for pointing out this may be the first case, but (by a few days) not the first time: Bloggers speak up in Apple case
Great post, Dennis. I can only speak as someone who primarily helps folks sort out problems once they've arisen, but my common sense gene tells me that you're right to put the focus on overarching, big picture goals and not minutia. So here's my request for a "Part 3:" in today's world how do you do training that people will actually attend, enjoy (I mean, as much as possible), retain, and feel motivated to live out in their daily lives? My firm has some interestingideas along these lines. I also was intrigued by this interview with Dr. Henry Jenkins at IT Conversations regarding the learning power of game play. What do you think of these concepts, and what else would you suggest when it comes to communicating through training?
As part of its Top 25 series, CNN has announced its Top 25 Technological Breakthroughs. Topping the list: "Wireless world." Interesting that the Internet doesn't get its own billing; instead, it's implicit in many of the others. Also interesting that #20, "E-baggage" (spam, spim, phishing, virii, worms, etc.), is included as a "breakthrough" at all.
On Wednesday we'll be recording the next Sound Policy show, which will focus on the interrelationship between businesses, weblogs, and employees. It'll be great to talk these issues over with lawyer and employment law blogger George Lenard, PR strategist and blogger Steve Rubel, and Groove Networks General Counsel (and newly minted Microsoftie) Jeff Seul. Here are some links that will help inform our discussion. If you have others to suggest, please let me know.
Well it's official: our back and forth here has resulted in consensus, and we'll be applying a Creative Commons license to Between Lawyers. Thanks to everyone who provided input and feedback. Our new licensing will show up here graphically and in our feed very soon.
Adam Curry is testing beta podcasting software that PodShow eventually will be offering for Windows. Among other things, it sounds like it will encode the ID3 tags without fuss or muss for the user. I just pointed him toward the Creative Commons information on embedding licenses in audio. With any luck that'll get built in too.
Dennis wrote: "...as in the CC licenses, you can disclaim warranties, limit liability and cover other important matters. The second point is very important." I remember seeing recently that VentureBlog is doing this kind of thing via "terms of service." From a purely personal and nonlawyerly standpoint, terms of service strike me as a little off-putting and overbearing on a weblog as opposed to a Web site. But as a practical matter there's not much "as opposed to" about it, and I'll wager Venture blog isn't/won't be the only one to go this route, so I guess I'd better start thinking more sympathetically about the idea.
Some follow up thoughts from me on the issue of whether we should adopt a Creative Commons license, and if so which one:
I find myself in Tom's camp rather than Dennis' on the issue of the clarity (or lack thereof) of the language included in the long/actual versions of the CC licenses. (Is this any surprise given that Tom and I are both litigators, and thus don't actually draft these sorts of things?) My take is the licenses get their essential messages and points across, and to the extent there is any ambiguity in their actual text, one of the first pieces of interpretive evidence is likely to be the short, "human readable" version. Dennis' concerns are well thought out and well taken, but I'm comforted by the fact that the initial and revised versions of the licenses have the benefit of considerable sage input, and, as Tom points out, all similarly situated CC licensors will be in the same boat on issues of interpretation, which seems like it can only help reasonable and sensible interpretations of the licenses to carry the day.
More troubling to me than the language are the implementation issues, but I think we can deal with those. Things any potential CC licensor needs to carefully consider are how to tag works (including whether to separately tag individual bits of work or apply one tag broadly), and how to most effectively include license information in any relatedmetadata (for us, the site's RSS feed). As long as these multiple moving parts convey a consistent message, as the rights holder I think you've done your job in communicating the license terms.
The only thing CC licensors (creators) and licensees (users) can do if third parties muddy things up (see Phil's Technorati example) is complain about it and seek better functionality if things are causing confusion, and compliance if license terms are being ignored or arguably violated. Things move quickly on the Web and lots of eyes are on Creative Commons. I'm optimistic that many of these glitches are inevitable growing pains that can and will be cooperatively addressed.
Dennis asks, "[I]f someone copies a post and uses it on a site that runs GoogleAds, would that be a commercial use and a violation of the license?" I think there's definitely the potential for violation of the noncommercial use licenses in any situation where the use has any kind of commercial context. However, in instances where the use meets a sufficient number of the fair use criteria, I think the fair use doctrine will likely control.
With three litigators and a trademark guy as the alternatives, Dennis, you'd definitely be drafting any kind of custom license. ;) Much as you're my hero in so many ways, and much as I have faith in your ability to draft something that is the epitome of clarity and effectiveness, I have a couple of reservations about going "off CC." For one thing, Corante uses RSS 2.0 to syndicate its blogs, and I don't know if (and doubt?) there is an RSS 2.0 module that would accomodate a custom license. So I don't know if our feed could effectively communicate our license information if we went custom. Also, see my comments above about the potential benefits of the collaborative input the CC licenses have and continue to receive, and of the influence of CC licensors as a group.
Tom's point about "needing a Creative Commons license to protect our content" needs some clarification. In my opinion our work here already has more protection under existing copyright law than we actually care about it having. A license lets us identify some reuses of our work that we think are just fine, and in fact welcome, while also specifying which copyright protections that otherwise apply by default we would like to retain. This helps us by encouraging others to discuss and build on our ideas, and helps those who would like to do so understand the parameters we've expressly approved.
I'd rather see Dennis further enlighten us about the mysteries of law, tech, and his inbox than become our Leonberger of licensing.
I'll come out of the gate as someone who favors applying a Creative Commons license to this weblog. As I see it, part of the reason we're writing this is to distribute the information as widely and effectively as possible, without completely giving away the farm as to our copyrights. As long as reuse of our work is reasonable and within parameters we can all live with, everyone benefits. The particular license I like for our purposes is the attribution-noncommercial-no derivs flavor. It tells people we want attribution, and it essentially tells them to get our permission before using our work commercially and/or in a derivative work. It's the closest to full copyright protection of the text-appropriate CC licenses, and I think it strikes a good balance conceptually.
It's once you leave the conceptual realm and enter the realm of execution that things get messy. Shelley Powers and Phil Ringnalda have pointed to some greatexamplesrecently of how efforts to locate CC licensed works or communicate the applicable CC license can be imprecise, inaccurate, or confusing. There's no doubt that it's early on in the implementation of tools that are intended to either convey the license the rightsholder wants applied to a particular work, or find works that are available for a desired use. (On the latter point, my take is ourmedia and the Internet Archive are probably more accurate at this point than the Yahoo! CC search.) As Shelley's post illustrates, the process of communicating whether and how a work is licensed is still being hammered out and may be for some time. (Example: Atom 1.0 includes the ability to specify different copyright treatment at the item level in a feed, while other means of syndication apparently don't.) There's also no doubt there are and will continue to be those whose attitude toward the terms of the actual license — or in the case of unlicensed works, the effect of the copyright — is more cavalier than it should be.
Is any of this a reason for us to forego a CC license for Between Lawyers? I don't think so. There is much we can do to help communicate our intentions clearly. We can make sure any license we choose is referenced visually and in our feed. And for our purposes, I don't see us needing or wanting to specify different licenses for different aspects of our work here, but if the need should arise it shouldn't be too difficult to clearly spell out our intentions. (For others who make lots of different media types available from one source, this might be a much bigger concern.) The implementation and communication of licenses online is an area that will continue to develop, and the confusion we see today might well find its way into some legal disputes. But I don't think that's a reason to throw the baby out with the bath water. Instead, if you think it's in your interest to adopt a license (as I do for us here), it's something to to be aware of and take reasonable steps to address.
Following up on yesterday's Bag and Baggage podcast (and my earlier post here about del.icio.us), I've blogged from time to time before about electronic discovery and weblogs. Folksonomies have me thinking along the same lines. While it's not a big leap to imagine a lawyer combing through an opposing party's weblog archives for statements that might prove useful in litigation, it's less obvious but no less true that one's information tagging activities could also be examined with that goal in mind.
Say, for example, you have parties arguing about the meaning of terms used in a contract. Assuming there's enough ambiguity in the language that the court agrees to consider parol evidence, the lawyers and the court might be very interested in how the parties have treated the terms in question when categorizing information online. Sure, it's a bit of a stretch and/or a nonissue today because these tools are not all that widespread. Twenty years ago, the same thing was true of hard drives. I'm curious whether my coauthors agree — or think maybe I've been smoking a few too many tags.
A few weeks ago Steve Rubel asked his readers to pitch.him del.icio.usly. I love this idea, not just because it helps deal with email glut, but because it has the potential to work like a public "trackforward" process for your weblog. It completes the temporal context picture. Trackbacks and comments handle the past ("Here's what I think about what you wrote"), but a page full of del.icio.us tagged material points to the future ("Here's what I think you should write, or hope you will"). And it's there for the world to read, so if the weblog authors don't or can't get around to discussing your issue, at least it's out there and contextually tied to the blog in some way. The potential for link spam is big I guess, but what the hey, let's see how it goes. Ping us at the betweenlawyers tag in del.icio.us, and as long as the page remains reasonably free of poker and Prevacid we'll check it regularly. Fellow 'tweeners (and anyone else who's interested): here's the feed.
If you were reading Bag and Baggage in 2002 (and you know who you three are), you might remember a post I did about adopting a Creative Commons license. I'm still using the same license I selected back then, updated to its 2.0 version. Soon (hopefully next week when three of our contributors get back from a conference), we're going to go through a similar process of deciding whether to apply a CC license to Between Lawyers, and if so which one. And we're going to do it through conversational posts here, so if you're interested in our thinking stay tuned. Shelley Powers has raised some timely related issues, so we'll try to grok their intricacies and fold them into the discussion.
Though the legal field traditionally is considered part of the "establishment," with a fewnotableexceptions — all of whom are strong voiced individuals or groups thereof — on the Web legal types are firmly ensconced in the long tail. This might come as an eye-opener to some firms and other legal institutions, but it's a healthy reversal. With their typically specific focuses and narrow appeal (and the innate hurdles they must overcome to achieve a compelling voice), those members of the profession whose sense of self-importance might be a tad overinflated must accept and understand the reality that many "lowly" law students, associates, and librarians will garner more readers than they do, and Boing Boing will cream just about anyone in a Google Fight.
Stowe Boyd, First, We Kill All The Lawyers: "This is also known as corporate eyewash, but it is certainly not blogging." (Do not think for a second that the irony and pathos of the title of Stowe's post are lost on us.)
Circular Logic: "The legal team at my company has started showing signs of agitation about our blogging experiments in marketing. ..." Calling Judge Kozinski!
Marty's excellent post today is the kind of thing that, before this blog existed, we might have chewed over in email without ever seeing it expressed on the Web with such pure voice. It's good to see it here.
On the ability of blogs by legal professionals to reduce widespread negative feelings about the law and lawyers, they won't solve the problem but they'll help. As the seats in the infinite auditorium continue to fill (to pilfer Ernie's recent metaphor), a more complete picture of the humans comprising the profession will be there and impossible to ignore. The stereotypes and hatred will get a run for their money. Of course, there will be jerks and lameheads too, and there will be a huge, mostly clumsy rush by lawyers and firms to adopt blogs for their much discussed and undeniable marketing power, without really understanding that what makes the good ones good is the kind of candor and accessiblity exemplified by Marty's post. Even so, as more of the constituent parts of the profession continue sharing what they know and who they are in this format, the harder it will be to generalize about how evil we are, the more accountable the jerks and lameheads will be forced to become, and the easier it will be to help clients do business and dissipate conflicts with fewer undue lawsuits and less undue rancor.
Alex Wellen (of Barman fame) has some succinct tips for copying music legally, covering time-and-place shifting, mix CDs, and CD rings. (Alex is still technically a newlywed, and itshows: "A mix CD for your lover is generally acceptable, but if you get married and you give that mix to all of your guests as a wedding memento, you risk your happily-ever-after status.")
Consistent with "Open Principles"[1] I anticipate that by putting my work online and inviting public comment the finished product will be superior to the result from a "closed" drafting process.
Aldo told me he initially decided to work on his thesis online because he and his mentor "had a heck of a time coordinating contact by phone." I think it's a fantastic idea, and if the topic intrigues you (here's somecontext), I'd encourage you to participate. It's great too to see more of this kind of collaborative, distributed approach being tried by those in the legal field.
VentureBlog's David Hornik received the recent Howard Rice alert on corporate blogging as well, and drily observes, "When the stakes are high, the lawyers come rolling in from all directions." He also discusses drafting VentureBlog's terms of use.
Thanks to Donna and the Copyfight crew for aggregating comprehensivecoverage and providing showdown background regarding today's argument before the U.S. Supreme Court in MGM v. Grokster. It's interesting to see too that the legal process itself is starting to be responsible for its own chunk of P2P noninfringing uses.
I spend lots of time in cars and airplanes and behind strollers
(running and walking). Thank goodness for podcasts. And for iPodder and similar applications. When things that interest you are being automatically delivered to a device you have with you all the time, you don't need to "make time" to listen.
Time makes itself. Driving around, getting an oil change, etc.
Whenever I'm going to be stuck somewhere is when I listen. So, some
days I catch a few shows, some days I catch a whole bunch, some days none. This translates into lots of intellectual candy for
me, and no more "what am I going to listen to?" thoughts or
housekeeping before running out the door. I love the degree of
control it gives you over the signal:noise ratio in your life.
As far as the intersection of podcasting and the legal field, as
with blogs this is a great vehicle for lawyers and firms to
demonstrate expertise and distribute information on important,
complicated, and/or controversial topics. Or maybe just to lighten up a little. It also strikes me as a great tool to use internally: in-house MCLE, training, informational meetings, etc. could be captured as podcasts for those unable to be there in person or even virtually at the particular scheduled time. There are a whole host of internal administrative uses I would think.
But enough about that — I couldn't agree with Marty more about timeshifted and portable appellate oral argument. Though forward-looking courts are Webcasting, I really hope we'll start to see some syndicating their audio before long as well, or adopting an encouraging attitude toward those who want to do so.
As far as excellent production values and relentlessly engaging material go, it's tough to beat Evan Schaeffer and his various podcasts including "Law Related Things That Suck." The current installment is some biting political commentary regarding the Schiavo case: "In these sorts of complex cases, when it comes to judges President Bush and Congress want a judge who's less like Flounder and more like Dean Wormer — in other words, a good old-fashioned federal judge."
Also, podcasting will only get more and more accessible on both the production and listener fronts. Witness the Podcast Hotel Corante is planning, and BlawgCast, as examples.
Bruce MacEwandescribes an interesting recent Wall Street Journal article, "On The Case: rising legal costs may have finally met their match: technology." In pertinent part he writes, "Cisco and DuPont, together with FMC and Clorox, are developing a 'virtual lawyer' to provide automated online responses to routine legal questions concerning, for example, human resource policies. And lest you think they're all alone out there on the early-adopter curve, they plan to license this tool to all comers." (Via Michael Fox, via George Lenard's first podcast.)
Though this weblog will be about many things, it will almost always be about this: technology changes constantly, and technology changes everything. It changes the way humans in society interact with each other and the world around them. It changes the way they entertain and educate themselves. It changes the way they love, the way they fight, and the way they attempt to govern. The law does its best to keep up, but while technology changes rapidly, the law and its institutions move at what some would call a more measured — and others would dub simply a snail's — pace.
The legal field increasingly finds itself at the intersection of modern life and the often ill-fitting or conflicting precedents that might determine the outcome of a particular dispute. Lawyers are trained to spot and analyze these sorts of issues, and to help clients, courts, and legislatures attempt to work through them. But historically, the thought processes behind our lawmaking have been largely invisible. Legal discourse has been readily accessible only to a closed loop of professionals, academics, jurists, and politicians. Even within the profession itself, "knowledge sharing" remains a somewhat novel concept. Unless you're helping generate billable hours or paying handsomely for them, until quite recently odds are your exposure to timely commentary on topical legal issues has been limited to media sound bites.
Weblogs by those across the legal field are changing this, and Between Lawyers is an effort to keep accelerating that change. Its contributors are five lawyers with disparate backgrounds who live with and strive to understand the impact of technology on our world. They are all bloggers with a track record of being able to explain complex legal issues in ways that others can understand. They find their backchannel conversations about technology, the law, their profession, and society pretty interesting, and they hope that by having these discussions in public — and inviting your participation — everyone concerned can learn a thing or two more than they otherwise would.
So, whether you're already well represented or Between Lawyers right now, we're glad you're reading and hope you'll do so often.