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.

Consider and discuss the technical, legal, and/or policy differences, if any, between this and this.

I'll be on a panel at BlogHer this weekend called Professional Blogging: Art and Commerce —

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

Here are George Lenard's posts on the subject:

Employers Using Facebook for Background Checking: Is It Legal?

More on using facebook et al. in recruiting and hiring (Part II)

Employers Using Facebook for Background Checking, Part III

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?

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.

The conference call Mike Madison and I recorded earlier this week in anticipation of our session at Community 2.0 (more here and here) is now available as part of the Bag and Baggage Podcast or from the Future of Communities blog.  We talked about:

• 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
• Personal data ownership and the Attention Trust

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

The Conference Room Number: 5785861

Hope to chat with you then.

(Cross-posted to Bag and Baggage and Lawgarithms) 

[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.

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:

#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.

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:

• Part 1
• Part 2
• Part 3

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.

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)

Ed Poll has a piece in the ABA's Law Practice Today on why associates are so dissatisfied. He says law firms have three fundamental defects:

• a flawed business model;
• a flawed financial focus; and
• flawed human resource strategies.

(Via Genie Tyburski) The world's hothouses are incapable of housing enough fresh lobby flowers to make it ok to let these kinds of issues fester.

I'm going to be offline for a week or so wanted to sprinkle these out there:

• Ari Kaplan, Lawyer Bloggers, Fact or Fiction?: "There are other explanations for why blogging is relatively scarce in large firms."
• Victoria Pynchon, BLAWGS:Your Clients are Reading. . . but you're not writing . . .: "[S]harpen up your blog skills to reach the speciality audience that will support your legal practice for the next two or three decades. It might even help you remember why practice used to be so thrilling."
• Jeneane Sessum, Oh, I just got it!: "Sillies! Yes you can. Nine out of ten Human Beings even prefer it."

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.

1. 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.
2. 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.
3. 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).

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 follow along), 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?

More:

• Engadget, Helio Launches
• Engadget, Interview with Sky Dayton
• Gizmodo, Helio Here
• Helio, In The News

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.

[Update:] Slashdotters weigh in.

Paul McNamara at Network World thinks this 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 these discussions of the limited nature of the fair reporting privilege.)

Employment lawyer James Erwin offers Six Steps Help Ensure At-Work Blogs Are An Asset:

1. Expressly include blogging within the same rules that govern acceptable use of email and Internet;
2. Prohibit employees from disclosing or discussing any confidential or proprietary information;
3. 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:
4. 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;
5. 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
6. 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.

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 Treem considers 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."

Also on point, Robert Scoble: Second Life +is+ an OS. (Hey, did you hear he's going to Google? Heh heh, heh heh, heh.)

In The Shifting Legal Landscape Of Blogginig, Jennifer Peterson discusses some interesting points concerning blogging and defamation law:

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.

Jennifer recently joined Ann Althouse and others for the Inaugural WisPolitics/WisOpinion Blog Summit. [Via WisBlawg's Bonnie Shucha] An abundance of related bloggage is available (and here's more, honing in just on posts mentioning Jennifer).

[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 Stone live-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).

No surprises there to me; you?

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.

Remember our posts about brochures, telephones, golf, and public speaking?

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 really important.)

I've been rereading Halley Suitt's A Blogger In Their Midst (Harvard Business Review Case Study and Commentary) in connection with a panel I'll be on later this week at the New Communications Forum. It was published in September 2003 but is still timely, featuring Halley's provocative vignette of a company's management grappling with its "blogging problem," and related analyses from David Weinberger, Pamela Samuelson, Ray Ozzie, and Erin Motameni. Two quotes in particular from the commentary struck a chord with me:

[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.

In a letter and recommendations of yesterday's date, the American Bar Association urged* 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.

*PDFs available at that link.

[Update:] More from Ernie Svenson; the blogosphere.

[Technorati tags: electronic surveillance; participatory law]

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.

Related, via Genie Tyburski: Web 2.0, Library 2.0, and Librarian 2.0: Preparing for the 2.0 World.

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."

• destinationCRM.com, A New Marketing Medium: "Less than 5 percent of the Fortune 1,000 is using blogs strategically, but that percentage will triple in the next two years..." (Want to watch it happen? Then monitor The Fortune 500 Business Blogging Wiki [via Doc Searls].)
• 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."

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's Daily Source Code #320. What do you think?

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:

• Technorati acquires AOL
• Corante acquires Six Apart
• Digg acquires Slashdot (after itself being gobbled by someone huge, rich, and smart)
• eBay acquires Martindale Hubbell ("What kind of pie?" — and fixes the latter's broken feedback system)
• The shelf life of cell phones and iPods shrinks from 8 to 4 months
• Laudable efforts to avoid the terms "vertical" and "space" in their business/economic sense become as challenging as in 2000 (if not more so)
• John Battelle renames his conference

[Technorati tag: predictions2006]

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:

1. 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.
2. 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.
3. 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.)
4. 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.
5. 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.

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 following the story closely (proving himself a Groupie groupie to the core of his being), had this headline this evening while pointing to a story about a cross-dressing policeman: At least he wasn't blogging like a woman.

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.

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:

• We have a lawyer in Pittsburgh, Chris Soller, who is thinking about the Aaron Wall dispute: Blogs vs. the law: A showdown about third party commentary.
• We have a lawyer in New York, Douglas Wood, who is thinking about what buzz marketers may have to disclose: Marketers May Face 'Buzz Disclosure' Oxymoron.

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's lead. 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.

The children were nestled all snug in their beds,
While unspeakable visions did dance in their heads.
And Ernie in his Treo, and I in my thong,
Had just settled down with a good Springsteen song.

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??"

For those who missed it, Nico Pitney of Think Progress captured Senator 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 won’t they just stop paying attention and let Senators hold the trite 15-minute hearings they really want?"

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.)
• Evan Schaeffer's Episode 35 offers a plaintiff's lawyer's perspective on the Vioxx litigation. (Feed)
• Catholic organization Fidelis has scooped the plawdosphere and will be podcasting next week's Supreme Court confirmation hearings for Judge John Roberts. (Feed) Anyone else podcasting the hearings? Let me know.
• Dana Greenlee does a Boston Legal podcast (called "Boston Illegal Radio;" feed), and has just learned she's won the CBS Podcaster competition. Congratulations!

Don't forget to visit the law node at Indiepodder.org, and Blawgcast.com, for more on podcasts of the legal persuasion.

For our podcasting readers: "Brian Russell of Audioactivism.org has just created a PSA that can be used by blogs and radio stations to promote donations to disaster relief..."

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.

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.

As I just posted at B&B, you can now

Search the published opinions of Judge John G. Roberts, courtesy of the folks at askSam:

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.

Via ResourceShelf, via Genie Tyburski.

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 of Jonathan 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."

Here's the IBM and the Future Of... podcast, and another one from their Systems and Technology group. I haven't listened to either yet, but really think podcasts from businesses will be a big deal.

Thanks, Mary Hodder and Ross Mayfield, for bringing us the Speaker's Wiki. Add yourself, add your event. This is a great resource, put it to good use.

Simply Hired's Dave McClure announces Simply Fired — "If you don't laugh, you'll cry" — and kicks things off with Mark Jen's story. Brilliant.

Three students at the School of Communication and Information, Nanyang Technological University (SCI/NTU) surveyed over 1,000 bloggers worldwide on ethical issues as their undergraduate honors thesis. Then, appropriately enough, they published their results as a blog: Weblog Ethics Survey Results. Some interesting nuggets:

• "[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."

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:

• Slate, The Supreme Court Shortlist
• Slate, A Different Shortlist
• Kos, (Poll) Who will Bush nominate to be the next Supreme Court justice?
• (out of date but still informative) Jurist: Honorable Mentions
• Writing two years ago, Professor Jack Balkin had more reasons why Judge Posner should be Chief Justice (but he harbored no illusions)
• Red Herring, Tech Loses Ally in O’Connor (via Copyfight)
• Article III Groupie, Potential Replacements for Justice O'Connor (I see no reason why, in addition to his or her myriad other qualifications, the next Justice could not be a Judicial Superhottie)

There are also a great many blogs that are consumed with the nomination and confirmation process. I'm probably just scratching the surface here:

• Goldstein & Howe, The Supreme Court Nomination Blog
• The National Women's Law Center's Nomination Watch
• The Republican National Lawyers Association's Judicial Confirmation Blog
• Redstate.org's Confirm Them (and see this Reuters story pointed to from there, titled Blogs seen as powerful new tool in U.S. court fight)
• I'm a big fan of Nomination Nation
• The Hedgehog recommends Real Clear Politics for its "good commentary and informed speculation"

• 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."
• Thursday, June 30. Apple Podcast Subscriptions Top A Million.

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.

[Technorati tag: Gnomedex2005]

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!

[Technorati tag: Gnomedex2005]

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?

Good for you, Enrico! (Careful about those wacky and endlessly confusing lawyer advertising rules though.)

[Update:] And see Enrico's comment to an earlier BL post.

To quote an Engadget commenter: "dude, pass the orb!"

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 another example 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:

1. The scope of copyright. What does and does not need to be protected in today's day and age, and when should protection attach?
2. 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.
3. 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, many already have 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.

Fredrik Wacka has "compared and categorized the corporate blogging policies and guidelines of IBM, Yahoo! (pdf), Hill & Knowlton, Plaxo, Thomas Nelson, Feedster, Groove and Sun." See Policies compared: Today's corporate blogging rules, and Frederik's CorporateBloggingBlog in general is a terrific resource.

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.)

Internetnews.com reports on Yahoo!'s blogging policy, posted by Jeremy Zawodny:

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."

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.

When you see the word "telephone" in a sentence, substitute the word "blog" to see if the sentence still makes sense (or is interesting):

1. Every law firm should have a telephone.
2. There should be telephone risk assessment teams.
3. The consultant charges $500 a month to talk on the firm's telephone.
4. What will telephones be like in 5 years?
5. Every lawyer has a moral obligation to telephone.
6. How will telephones affect the practice of law?

Chad Dickerson will be part of an excellent looking panel at the upcoming Syndicate conference. Voices From Within, Harnessing the Power of the Individual will touch on many of the interrelationships between businesses and blogging we've discussed here. See Chad's post for the details and how you can participate.

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?"
• An upcoming program sponsored by the Orange County Bar Association will discuss Legal Ethics in Cyberspace. The panel will consist of several professor and attorney experts on this subject, including members of the California Commission for the Revision of the Rules of Professional Conduct. I'd like to go but can't, schedule-wise. It sounds like J. Craig Williams will be there though, hopefully he'll be able to share some further thoughts.

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.

As a former colleague and mentor of mine likes to say: God be willin' and the creek don't rise.

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:

1. 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?
2. 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?
3. Do you email colleagues items you think they might want or need?
4. Do you make lists? (Mentally or otherwise.)
5. Do you spend much time using search engines?
6. Do you write about legal issues or developments for print publications or other outlets?
7. 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?
8. Do you like staying well informed about developments that affect your practice and your clients' lives and businesses?
9. Do you have a sense of humor?
10. Are there one or a few substantive areas of the law you know pretty well, or better yet, very well?
11. 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?
12. Are you sufficiently professional and comfortable in your skin that you will publicly acknowledge and correct mistakes?
13. Do you think your clients, potential clients, and colleagues probably already get more email and paper mail than they'd like?
14. 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?
15. 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?
16. 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.)

1. 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.
2. 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 your outboard brain, but everyone else's.)
3. "Attention is the scarcest resource available to knowledge-based businesses. It gets trampled everyday with overzealous push content approaches." Blogging makes you part of the solution, not part of the problem.

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.")

I don't really have anything to add to this, especially in light of the thoughtful comments so far, but did appreciate your reference over here to Simon Barsinister.

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:

• Blogging ALM Media's "CIO/CTO Summit"
• Practice Group Management Forum 2005

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 also Worthwhile 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."

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 interesting ideas 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?

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.

• Groove Networks' Employee Guidelines for Personal Website and Weblogs and Ray Ozzie's commentary
• Feedster's weblog policy and Scott Rafer's commentary
• The Thomas Nelson blogging guidelines (revised), and Michael Hyatt's commentary
• Plaxo's Public Internet Communication Policy, and much reader commentary
• Tom Reynolds, How To Blog And Not Lose Your Job (via)
• EFF, How to Blog Safely (About Work or Anything Else)
• Tim Bray, Ten Reasons Why Blogging is Good for Your Career
• Robert Scoble, Dave Sifry and Niall Kennedy in lesson on corporate blogging
• Robert Scoble's Corporate Weblog Manifesto and update, plus some further thoughts
• The Howard Rice law firm's alert on corporate blogging
• Dennis Kennedy, Corporate Blogging Policies and Déjà Vu; Seminar Materials on Blogging and Technology Use Policies
• George Lenard's firing bloggers series

(Ok, better stop there for now, we try to keep these things to 45 minutes!)

Some follow up thoughts from me on the issue of whether we should adopt a Creative Commons license, and if so which one:

1. 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.
2. 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 related metadata (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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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 great examples recently 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.

I really enjoyed Doc Searls' Tail Tales post yesterday, among other things reminding us of Kevin Marks' insights about the collective power of low traffic sites back in 2003, well before Chris Anderson's landmark essay made so many say: "Oh! Yeah!"

Though the legal field traditionally is considered part of the "establishment," with a few notable exceptions — 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.

A couple of quick responses:

1. 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.
2. 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.

Aldo Castañeda writes the DistributedOpenSourceFinancing blog, maintains the law node at iPodder.org, and is a JD/MBA candidate at Suffolk University Law School in Boston, Massachusetts. He's also writing his legal thesis — on the very important topic of open standards in identity management systems — online:

This blog is the home of my legal thesis.

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.

[1] Open Source Licensing, Software Freedom and Intellectual Property Law by Lawrence Rosen.

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 some context), 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.

Thanks to Donna and the Copyfight crew for aggregating comprehensive coverage 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.

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.