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Denise Howell Denise Howell
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Dennis M. Kennedy Dennis M. Kennedy
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Tom Mighell Tom Mighell
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Marty Schwimmer Marty Schwimmer
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Ernest Svenson Ernest Svenson
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Denise Howell is a seasoned appellate and intellectual property litigator based in Los Angeles. Denise writes one of the first and most popular law-related blogs, Bag and Baggage, coined the term "blawg" and helped pioneer podcasting for lawyers. Microcontent obsessed since 2001, she is frequently quoted in the media on legal issues involving intellectual property and technology law. "Sound Policy" is Denise's show at IT Conversations, and it's also what she hopes results from the briefs she submits to court. Email Denise at dhowell@gmail.com.

Dennis Kennedy is a computer lawyer and legal technology expert based in St. Louis, Missouri. An award-winning author, a frequent speaker and a widely-read blogger, he has more than 300 publications on legal, technology and Internet topics, many of which are collected in his e-books. Dennis has been described as someone who knows almost every rock song in existence and, more importantly, how they apply to technology and law. Email Dennis at his gmail address.

Tom Mighell is Senior Counsel and Litigation Technology Support Coordinator at Cowles & Thompson in Dallas. He has published the Internet Legal Research Weekly newsletter since 2000 and blogged about the Internet and legal technology at Inter Alia since August of 2002. With Tom's singing, Ernie on guitar and Dennis' encylopedic knowledge of rock music, we may have the beginnings of a good band, if this whole blog thing doesn't work out. Email Tom at tmighell@swbell.net.

Marty Schwimmer left a partnership in the largest trademark practice in the world and founded Schwimmer Mitchell, a full-service IP micro-boutique in Westchester County, New York, where he represents owners of famous and not yet famous trademarks. He founded The Trademark Blog, the first IP law blog and the one with the most pictures. He is the first to come in and the last to leave in his firm. Email Marty at marty@schwimmerlegal.com.

Ernest Svenson practices law with a mid-sized law firm in New Orleans, specializing in business-related lawsuits. Most of his practice takes place in federal court, especially the Eastern District. He is best known for his weblog Ernie the Attorney, which he started as an experiment. Like many experiments it got out of control. Nevertheless, he continues to practice law and, occasionally, to seek enlightenment. Email Ernest at esvenson@gmail.com.
About this blog
Between Lawyers provides just-in-time group commentary on the issues raised when technology, culture and the law intersect. We take you behind the firewalls and conference room doors to show you how experienced lawyers deal with these issues and help you prepare for the new challenges we all face. For more, see our introductory post.

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July 26, 2007

Legal Issues Of Law And Commerce

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Posted by Denise Howell

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

Comments (0) + TrackBacks (0) | Category: BL on Tour | Blogging Policies | Copyright | Ethics, Decorum and Manners | Intellectual Property and Technology Law | Participatory Law | Web 2.0

March 9, 2007

Podcast on the law of business communities

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Posted by Denise Howell

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

Comments (0) + TrackBacks (0) | Category: BL on Tour | Blogging Legal Developments | Blogging Policies | Copyright | Ethics, Decorum and Manners | Intellectual Property and Technology Law

March 7, 2007

Take Two: Public Conference Call On The Law Of Business Communities

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Posted by Denise Howell

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.

Comments (0) + TrackBacks (0) | Category: BL on Tour | Blogging Legal Developments | Blogging Policies | Copyright | Ethics, Decorum and Manners | Intellectual Property and Technology Law

February 24, 2007

Join us Monday for a public conference call on the law of business communities

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Posted by Denise Howell


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.

Comments (0) + TrackBacks (0) | Category: BL on Tour | Blogging Legal Developments | Blogging Policies | Copyright | Ethics, Decorum and Manners | Intellectual Property and Technology Law | Web 2.0

November 15, 2006

New Bar Blogging Policy Emphasizes Cluefulness, Participation

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Posted by Denise Howell

Attorney and Chicago area blogger Mazyar M. Hedayat has drafted and released a blogging policy for the DuPage County Bar Association, "as well as any committee, firm, or bar association thinking of establishing blogs or wikis in order to foster communication with their members or the public." It is a concise nine points in length, and I like every one of them:

#1 know and follow bar association guidelines for conduct, as well as the rules of good legal writing. no need to use Blue Book citations, but be accurate in your posts: others will look to them as a source of information and news, if not actual research.

#2 be mindful of what you write. remember that you have an audience.

#3 identify yourself and write in first person. make it clear that you are not necessarily speaking for the bar association as a whole. be sure to disclose any information necessary to keep your statements from being misleading. use the following disclaimer on your blog or wiki with respect to all posts:

unless indicated to the contrary posts do not reflect the views of the bar association, its members, executives, staff, board, or committees, and are the opinion of the writer

#4 respect copyright and fair use. do not plagiarize. give credit where due by citing to the author of a statement or passage.

#5 do not reveal confidential information that could result in liability to yourself, your committee, other bar association members, or the bar association itself.

#6 do not comment on active cases or client matters by name except with the approval of those referred to in the post.

#7 do not use ethnic slurs, insults, or obscenity. Avoid writing about inflammatory topics solely to pique prurient interests.

#8 always try to add to a discussion constructively and ultimately to add value. do not let your ego get in the way. you are here for the good of the bar association after all.

#9 have fun. a blog or wiki can be loads of fun and a terrific way to share the best of your committee with the world.

Comments (1) + TrackBacks (0) | Category: Blawgs | Blogging Policies | Law Practice Management | Participatory Law | Practice of Law | Web 2.0

October 25, 2006

August 27, 2006

Online On The Front Lines

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Posted by Denise Howell

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.

Comments (0) + TrackBacks (0) | Category: Blogging Policies | Current Events | Leaks | Participatory Law

August 23, 2006

Rule #1: Don't Be Stupid

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Posted by Denise Howell

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)

Comments (0) + TrackBacks (0) | Category: Blawgs | Blogging Policies | Law 2.0 | Law Is A Business | Law Practice Management | Legal Technology | Participatory Law | Practice of Law

August 17, 2006

August 11, 2006

August 9, 2006

June 26, 2006

June 19, 2006

June 13, 2006

Without Corporate Blogging Policies "All Hell Breaks Loose"

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Posted by Dennis M. Kennedy

In an interesting bit of irony, PodTech.Net takes the occasion of the move of leading corporate blogger Robert Scoble to its ranks to unleash a breathless story (and accompanying podcast) about the dangers of corporate blogging. In the article and podcast, Allen Weiner, a media analyst and Research Vice President with Gartner, Inc. says he thinks companies need policies that govern in-house blogging, or, "all hell breaks loose." Yikes!

Weiner adds that “Unsanctioned corporate blogging is absolutely a tough call. And it happens in just about every organization.” Hmmm . . . "just about every organization," he says. I'd love to see the stats backing that assertion. In fairness, I'll note that I pulled the quotes from the overview article and suggest that people listen to the podcast of the interview of Weiner to get a fuller picture of his views.

Let me simply say that in "almost every organization" there probably is a corporate communication policy or Internet use policy already in place that comfortably covers blogging and bloggers. As we've mentioned many times on this blog, considering policies in a vacuum, or rushing in with standardized and ill-conceived "blogging policies" will be the recipe for making all hell break loose. Any reasonable approach to these issues involves a three-sided approach, reasonable policy, consistent enforcement and excellent training. Skimp on any of the three and you will have problems. Focus only on the "blogging policy" issue (especially without integrating the other aspects of corporate communications) and all hell may break loose.

We've covered the issue of "blogging policies" repeatedly and, we believe, reasonably on the Between Lawyers blog. It's sad to see that the hype and selling of corporate blogging policies continues unabated. For a very reasonable approach to this issue, see Denise's recent post "Blog in Peace." She doesn't talk about hell breaking loose even once in the post.

It'll be interested in seeing see if and how PodTech.Net implements Weiner's approach with Scoble, won't it? We'd certainly hate to see all hell break loose at PodTech.Net because of Scoble's blogging. I'm just noting the irony of the timing of this article and Scoble's move.

What might be quite useful to the blogging community at large would be for PodTech.Net and Scoble to share the "blogging policy" that will apply to Scoble so it might be analyzed and critiqued and possibly used as a model for companies taking progressive approaches to employee bloggers. Just a thought and an example of what we call open source lawyering might look like.

Comments (1) + TrackBacks (0) | Category: Blogging Policies | Open Source Lawyering

June 9, 2006

Blog In Peace

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Posted by Denise Howell

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).

Comments (0) + TrackBacks (0) | Category: Blawgs | Blogging Legal Developments | Blogging Policies | E-Mail | Intellectual Property and Technology Law | Law Practice Management | Leaks | Practice of Law | Technology

May 25, 2006

Generations, Culture, And Corporate Communications

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Posted by Denise Howell

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.

Comments (4) + TrackBacks (0) | Category: BL News | Blawgs | Blogging Policies | Copyright | Ethics and Technology | Intellectual Property and Technology Law | Open Source Lawyering | Practice of Law | Privacy | Technology

May 15, 2006

(Cue Tattoo:) Defame! Defame!

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Posted by Denise Howell

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.)

Comments (0) + TrackBacks (1) | Category: Blawgs | Blogging Legal Developments | Blogging Policies | Participatory Law | Podcasting

May 10, 2006

Six Tips

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Posted by Denise Howell

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.

Comments (0) + TrackBacks (0) | Category: Blogging Policies

April 30, 2006

April 20, 2006

April 4, 2006

More Diet Tips For Corporate Blogging Policies

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Posted by Denise Howell

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).

Comments (0) + TrackBacks (0) | Category: Blogging Policies

April 1, 2006

A One Sentence Corporate Blogging Policy?

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Posted by Dennis M. Kennedy

Julian at Exceller8ion has a great discussion of corporate blogging policies, the need for them and the forms they might take.

He concludes with a suggested one sentence corporate blogging policy:

When blogging: better to be a smart ass than a dumb ass.

You might have a little trouble getting your lawyer to sign off on that one, but Julian's discussion will help you think through what approach you do want to take.

In response, Heather Hamilton has a great post that gets to the root of the corporate blogging question with her post called "The difference between companies that WANT their employees to blog and companies that ALLOW their employees to blog."

The money quote:

It's not necessarily any one policy that concerns me but that, taken together, they seem to represent a fear of allowing employees to blog. As if to say: "we don't really want you to blog, but if you must, follow these vague rules". Telling people not to violate agreements they have signed? Duh! You can't disclose proprietary information? Duh! No obscene material? Wait while I delete a post I've been working on. I guess my position is that if you need to spell it out for people this plainly, you really don't trust them to blog in the first place and/or you need to raise your hiring bar. Are you trying to scare them off blogging? Giving yourself something to point to if you don't like what they say? I'm not trying to criticize any one company; I just don't buy into these extensive blogging policies.I prefer the "don't do anything stupid" policy, which assumes (hopefully based on proof) that you hire smart people.

Excellent contributions to the ongoing discussion of corporate blogging policies in the real world and the hidden dangers of adopting "standard" and draconian policies.

Comments (0) + TrackBacks (0) | Category: Blogging Policies

March 27, 2006

March 20, 2006

Survey Says: Good Sense Prevails For Personal+Professional Bloggers

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Posted by Denise Howell

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?

Comments (4) + TrackBacks (0) | Category: Blawgs | Blogging Policies | Ethics and Technology | Ethics, Decorum and Manners | Law Practice Management

March 16, 2006

Corporate Blogging and the OODA Loop

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Posted by Dennis M. Kennedy

Via John Robb:

Jesper Bindslev's post "Strategic Agility and Corporate Blogging - The OODA loop as a model for organizing corporate blogging activities" is an important contribution to the discussion of corporate blogs and employee blogging.

The post may be a little bit of hard sledding for those not familiar with John Boyd's notion of the OODA Loop, but the patient reader will be well rewarded.

The money quote:


Internal blogging combined with external blogging, rss aggregators and social tagging are all important tools which enable the team to organize information efficiently to insure that the data is activated and distributed to the right people at the right time. From this angle blogging helps companies cope with challenges like complex environments, gathering and activation of information and efficient, up-to-date decision-making for various team efforts. As such blogging can efficiently help organization on one of the contemporary top-priori[ty] business imperatives: corporate agility.

Something to think about for companies thinking about slapping on draconian employee blogging policies.


Technorati tags:

Comments (0) + TrackBacks (0) | Category: Blogging Policies

March 14, 2006

Employee Blogging In the Northwest Indiana Times

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Posted by Denise Howell

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."

Comments (0) + TrackBacks (0) | Category: Blogging Policies

March 10, 2006

ABC, 123, IT Considers The Value Of UGC

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Posted by Denise Howell

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.

Comments (0) + TrackBacks (0) | Category: Blogging Policies | Law Is A Business | Law Practice Management | Legal Technology | Technology

March 8, 2006

Blogging Strategies From Texas To Tel Aviv

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Posted by Denise Howell

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. ...'

Comments (0) + TrackBacks (0) | Category: Blogging Policies | Ethics and Technology | Ethics, Decorum and Manners

March 6, 2006

Blogs: Least Risky Of All?

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Posted by Denise Howell

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.)

Comments (3) + TrackBacks (2) | Category: Blawgs | Blogging Legal Developments | Blogging Policies | Ethics, Decorum and Manners | Leaks | Podcasting | Technology

March 2, 2006

Best Corporate Blogging Tips vs. Corporate Blogging Policies

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Posted by Dennis M. Kennedy

From Scout comes a good list of "10 Tips for Becoming a Great Corporate Blogger."

Interestingly, it must not have been written by a lawyer caught up in the latest blog policy marketing fad - not one of the ten tips talks about implementing a draconian "standard" blogging policy. Food for thought.

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February 28, 2006

Glove Affair

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Posted by Denise Howell

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.

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February 21, 2006

Lack of Blogging Policies for Employees Causes Employers to Grow Three Heads (and Creates Other Dangers Too Horrible to Describe)

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Posted by Dennis M. Kennedy

It's hard to believe that it was almost a year ago that we were discussing on the Between Lawyers blog a series of breathless announcements from lawyers and other pundits about the dramatic dangers for employers who did not have a "blogging policy" in place. Too many of those announcements suggested that "thou shalt not blog" was the best policy, not realizing that there might even be positive benefits of employee blogging in the sense of the Cluetrain Manifesto and other thoughtful approaches.

Concerned that the general public would see the new-found concern of lawyers as being simply a law firm marketing flavor of the day, we decided to shine a little light on the topic, cut through the hype and take an approach that focused on education rather than fear. You can find our posts on this topic in the blogging policies archive of the Between Lawyers blog. I've just read through the posts and they seem so reasonable that you may wonder if lawyers actually wrote them. There are also some great links and resources.

I think that the discussion here did some good because I didn't see any "Blogging Policy Alerts" for quite a few months after we (and others in the blog world) discussed the topic.

Well, it was a short ceasefire. A new article at Forbes.com called "Protecting Employers Against Bloggers" is a recent example of the alarms being sounded again.

I've read a whole bunch of these articles on the dire need for "blogging policies" and I'm forced to conclude that I'm just a dumb country lawyer who doesn't get what all the brouhaha is and maybe my experience as a blogger really has not given me any insights into these issues. I'm also a little more dubious of surveys than most people seem to be.

Maybe someone can help me understand why I can't understand why having or not having a "blogging policy" is such a cause for alarm.

As I see it, if you have the normal sort of well-drafted employee manual or guidelines, Internet or technology use policies and corporate communications policies, it seems like you should have blogging covered. I just cannot see how blogging raises issues that are any different from public speaking, email, websites, and even use of the telephone. In fact, if you substitute "telephone" for "blog" in the recommendations at the end of the Forbes.com article, you'll see that the same principles apply equally to telephone use.

On the other hand, if you have none of these policies, then concentrating on "blogging policies" without addressing the other policies seems a little silly.

In all events, expecting to find a one-size-fits-all policy is not a wise move. These policies need to fit your culture and the unique circumstances of your business. The Forbes.com article ends with what I believe is the most important point of all in this area (and it's not a legal one) - training. As the article says, "Employees should be trained about the existence and contents of these policies and their obligation to maintain the employer’s reputation in the community at large." Bingo. Policies without training and leadership at the top levels create their own set of problems, especially if the exercise is just to slap a "standard policy" into place.

However, I'm willing to learn where I'm missing the point. In the meantime, I recommend that you read the posts in our archive in addition to the dire warnings about blog policies that seem to be bubbling back up to the surface in recent weeks.

Comments (3) + TrackBacks (1) | Category: Blogging Policies

February 20, 2006

February 8, 2006

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February 6, 2006

Employment Lawyers' Poll On Employee Blogging

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Posted by Denise Howell

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."

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February 3, 2006

Recent Worthwhile Reads And Resources On Business And Employee Blogging

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Posted by Denise Howell

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November 25, 2005

November 15, 2005

RIP A3G

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Posted by Denise Howell

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.

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November 1, 2005

Watch 'em, Fight 'em, Join 'em, Buy 'em, Sue 'em

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Posted by Marty Schwimmer

The following suggestions from Forbes as to how to fight back against an 'all-out attack' by bloggers:

MONITOR THE BLOGOSPHERE. Put your own people on this or hire a watchdog (Cymfony, Intelliseek or Biz360, among others). Spot blog smears early, before they can spread, and stamp them out by publishing the truth.

START YOUR OWN BLOG. Hire a blogger to do a company blog or encourage your employees to write their own, adding your voice to the mix.

BUILD A BLOG SWARM. Reach out to key bloggers and get them on your side. Lavish them with attention. Or cash.Earlier this year Marqui, a tiny Portland, Ore. software shop, began paying 21 bloggers $800 per month to post items about Marqui, while requiring them to disclose the payments. Marqui's listings soared on Google from 2,000 to 250,000 results. Never mind that one blogger took the money and bashed a Marqui marketing strategy anyway.

BASH BACK. If you get attacked, dig up dirt on your assailant and feed it to sympathetic bloggers. Discredit him.

ATTACK THE HOST. Find some copyrighted text that a blogger has lifted from your Web site and threaten to sue his Internet service provider under the Digital Millennium Copyright Act. That may prompt the ISP to shut him down. Or threaten to drag the host into a defamation suit against the blogger. The host isn't liable but may skip the hassle and cut off the blogger's access anyway. Also:Subpoena the host company, demanding the blogger's name or Internet address.

SUE THE BLOGGER. If all else fails, you can sue your attacker for defamation, at the risk of getting mocked. You will have to chase him for years to collect damages. Settle for a court order forcing him to take down his material.

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October 18, 2005

August 17, 2005

Littler Says: Businesses Need A Blogging Policy

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Posted by Denise Howell

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.

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August 11, 2005

C'n And Heard

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Posted by Denise Howell

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."

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August 1, 2005

Death, Taxes, Marketing

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Posted by Denise Howell

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.

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July 27, 2005

Studiously Ethical

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Posted by Denise Howell

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."

Comments (0) + TrackBacks (0) | Category: Blogging Policies | Ethics, Decorum and Manners

July 23, 2005

July 15, 2005

June 23, 2005

Dave Pollard on Corporate Blogging Policies

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Posted by Dennis M. Kennedy

I mentioned the other day that I was interested in reading fresh perspectives on the issue of corporate blogging policies that reflected the views of actual bloggers.

One of my favorite bloggers, Dave Pollard, provides a great example of what I would like to see more of in his excellent and thoughtful post called "What Should Your Corporate Policy Be On Blogs?" I highly recommend it as a fresh take on the corporate blogging discussion.

An update on my recent post about blogging policies:

If you've followed the comments, you know that I've now had the chance to download and read the Covington & Burling article mentioned in that post. I've been thinking about the next-to-last paragraph in that article that says:

"Clearly, not every employee blog will reflect poorly on an employer or disclose sensitive information. On the contrary, blogging employees may be among the most creative, entrepreneurial and technologically savvy members of an organization, and may serve as powerful advocates for the companies they work for. Given that, and in light of the risks in banning off-site blogging, the better approach may be to balance the positive aspects of the blog with appropriate safeguards against the greatest risks."

I like this paragraph and wish that it would have led the article, but I want to focus on a couple of points raised by this paragraph.

Sentence #1 reflects the most common assumptions about employees who blog. If you make those assumptions, your blog policy will have a certain kind of substance and tone, the kind that lawyers excel at drafting.

Consider sentence #2, which reflects my general assumption about bloggers. Assume for a moment that your employees who blog are the types of employees described in sentence #2. Now aks yourself the following three questions:

1. How would the tone and substance of your blogging policy change?

2. How will those employees respond to a policy that is written based on the assumptions in sentence #1 of that paragraph in the article?

3. How wise is it to adopt some kind of "standard" or "one size fits all" policy to cover blogging?

Now, go take a look at Pollard's article

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June 20, 2005

Dennis Re Covington & Burling on Employeee Blogging

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Posted by Dennis M. Kennedy

I've looked all over the Covington & Burling website and can't find that the firm has a blog. Would someone help me out by directing me to the URL of the C & B blog? I'm sure that I'm just overlooking it.

Anyone else wonder about the credibility of advice on blogging policies from law firms that do not have blogs? I'm not being critical - I just raise the question.

I haven't had the chance to read the C & B article yet, because it locked up my browser when I tried to download it. Perhaps that makes me a bit irritable, but I still have a funny feeling that the article will take a rather negative view of blogging and highlight lots of dangers of blogging that can be solved only by using the services of a firm like C & B.

Certainly, law firms have every right to take these marketing approaches, and I'm not being critical, but I personally am more interested in the conclusions and recommendations of lawyers who have experience with their own blogs than those who seem to be jumping on a fad of creating a blogging policy practice area.

I'll reserve judgment on the C & B article until I am able to read it.

I still like the discussions and resources we've mentioned and collected on Between Lawyers are the best place to start research on "blogging policy" issues, but I may be a little biased.

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Covington & Burling on Blogging

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Posted by Marty Schwimmer

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June 13, 2005

June 7, 2005

A Survey Of Corporate Blogging Policies

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Posted by Denise Howell

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.


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June 3, 2005

Yahoo!'s Blogging Policy

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Posted by Denise Howell

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.

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May 18, 2005

Dennis re: Marty's Mental Exercise – Public Speaking

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Posted by Dennis M. Kennedy

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

1, Every law firm should have lawyers who do public speaking.
2, There should be public speaking risk assessment teams.
3. The consultant charges $500 a month to teach the firm's lawyers to do public speaking.
4, What will public speaking be like in 5 years?
5. Every lawyer has a moral obligation to do public speaking.
6. How will public speaking affect the practice of law?

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Dennis re: Marty's Mental Exercise

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Posted by Dennis M. Kennedy

Hey, this is kind of fun.

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

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

I was struck by the fact that a firm's exposure to errant golf shots and bad behavior on the golf course might well exceed the dangers of lawyer blogging. Oh, where is the outcry and the call for golfing policies?

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Denise re: Marty's Mental Exercise

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Posted by Denise Howell

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?

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May 17, 2005

Mental Exercise

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Posted by Marty Schwimmer

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

Here are some starter sentences:

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

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Syndicate Panel

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Posted by Denise Howell

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.

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May 16, 2005

April 26, 2005

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April 20, 2005

April 19, 2005

RE: Brand New Pear

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Posted by Dennis M. Kennedy

Denise mentioned the intriguing question of where the status of employee ends and that of private citizen begins.

I'm fascinated how discussions of the implications of blogging so frequently lead to fundamental issues like this one.

Dancing around the discussion of blogging policies is some sense that an employer can reach too far in trying to control the private life and behavior of an employee. The line is not as easy to draw as people might initially think.

If an employer reaches too far, the employer will lose its best and most creative employees. If an employer doesn't reach far enough, especially if it does not follow-up with education and training about laws, regulations and other rules, the employer runs the risk of legal and other problems.

It's interesting to compare the multi-paged, heavy-handed and legalistic approaches employers take with their adult employees to the shorter, simpler, more direct and generally more respectful approach advocated for Internet safety in the often-recommended family Internet use contracts for teenagers, such as this one, this one, this one and this one.

Interesting exercise: compare your Internet usage policy to these "contracts" and consider which approach might give you better results.

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April 18, 2005

Brand New Pear

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Posted by Denise Howell

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."

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April 12, 2005

Re: Blogging Policies - Not Only Legal Issues, Part 2

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Posted by Denise Howell

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?

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Blogging Policies - Not Only Legal Issues, Part 2

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Posted by Dennis M. Kennedy

I’ve earlier mentioned the importance of communication as an underestimated part of a sound legal approach to technology use or blogging policies.

The second often-neglected and not-usually-thought-of-as-legal-work part of these policies is TRAINING. In my recent presentation on this topic, I noted that a written policy without accompanying training all but guarantees later problems.

Marty mentioned some of the risks that use of technology, including blogging, can raise. I can mention several more, especially for executives in publicly-traded companies or those in companies working toward IPOs. Law schools teach lawyers to spot all of those issues.

I had an instructive conversation with a friend of mine on the plane trip to Chicago for ABA TECHSHOW. I told her that I was speaking on technology use policies. She said that her organization needed to put together a new policy. As we chatted about the types of issues we see today, I could see that, rather than helping, I was making the task seem more daunting, which wasn’t my intention.

I changed the conversation to focus more about whether a “cover every possibility” approach made sense for her or anyone else and whether there were more reasonable approaches to take.

My basic premise is that technology changes so quickly that the more precise you are, the more likely your policy will be outdated and be difficult to interpret in the future. My second premise is that the ways you want people to behave seldom change. My third premise is that if people understand what the risks and dangers are, they will tend to make good decisions. You are free to disagree with any of those premises.

To me, then, a good policy should be based on setting out your core principles (don’t break the law; don’t put key systems or information at risk; behave like you are in a work environment, not a frat house) and setting out the most important rules. Then, you put serious effort into training people how to use technology in ways that do not violate those principles and rules.

Here’s a favorite example of mine. You will see many policies that prohibit people from introducing a virus into the office system. At the same time, there is no effort made to teach people safe behavior with respect to virus issues. As a result, the office consistently gets hit with viruses and it will be difficult to discipline a problem employee because there will be many other offenders. You have a great usage policy in the legal sense, but as a practical matter, it’s kind of a disaster waiting to happen.

The more that people understand the whys and hows, the better job they’ll do at behaving in the ways that you want them to do under your policy. That’s training. That’s also common sense. It’s also something that can get forgotten when you focus solely on the legal issues and see the item “get blogging use policy done” on your legal to-do list.

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April 11, 2005

Blogging Policies - Not Only Legal Issues, Part 1

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Posted by Dennis M. Kennedy

The two most commonly overlooked components of a technology use policy or blogging policy are communications and training. Interestingly, companies rarely involve lawyers in either of these issues, admittedly, sometimes for good reasons. Let me tell you that if you don't address these practical issues, you probably won't get good value for your dollars spent on legal services.

I'll give you these tips for free. You can thank me if you think they are helpful - that will help my feel like I'm doing some good.

In this post, I want to talk about communications. I’ll talk about training tomorrow.

If someone took a close look at the cases involving bloggers and others getting into trouble for violating company policies, it wouldn’t surprise me to find that nearly all of them involved some kind of communications failure. As a practical matter, I suspect that any existing policies and restrictions were not, as a practical matter, effectively communicated to the person who got in trouble. In fairness to some employers, however, the communications breakdown might have happened when a person failed to read a policy or listen to instructions despite an employer's best effort.

An important part of any usage policy is simply getting into a form and format that people can easily read, and will read. This involves factors like readability, headings, bullet points, highlighting the main points, sequencing of categories, organization and even font selection and sizing. Lawyers are not known for excelling at any of these areas. I always like to see clients who want to improve the look and feel of legal documents.

When I speak on this topic, I emphasize that you need to think carefully about who the audience is for your policy and when and under what circumstances they will be reading the policy. The fact is that people will rarely read your policy for the fun of it. They will be reading it either to determine whether a specific activity is or isn’t allowed and commonly when there is a serious problem with potentially serious consequences.

If you have a policy that is 25 pages of single-spaced, dense legalese, people simply will not be able to find the answers that they want. Ideally, you want to make these policies very usable.

I think that you also want to be realistic about whether employees will read these policies. If you stick them up in an obscure place on your intranet or bury them in a stack of other paperwork, they probably will not get read. You also indicate that by your behavior that these policies are not all that important and that they are simply more “paperwork.”

Compare an approach where you take 15 minutes of a meeting to go over the highlights of the policy – the big points – and explain the need for people to follow the policy. Hand them a one page bullet-pointed summary at the end of the meeting. If you also use the meeting to confirm your trust in your employees and your appreciation for the value that they bring to your company, your chances of avoiding technology use problems increase dramatically.

Now, I think that this is all common sense. However, by treating blogging or, more accurately, technology use policies as purely legal issues and simply treating them as necessary legal obligations, you run the risk of neglecting common sense practices, like basic communications, the neglect of which will increase your chances of later legal difficulties.

Have you really communicated what policies you have? Care to see the results of a quiz for your employees about what is in the policies? See the problem?

Next stop: the training component.

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April 10, 2005

"Blogger Madness"?

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Posted by Dennis M. Kennedy

Denise, here's another item to add to the mix for your next Sound Policy program.

Randy Holloway alerted me to a CNN Money article on "blogging safely" that he compared to the classic documentary scare film, Reefer Madness, because of its breathless alarmism.

First of all, I admire Randy for actually reading any article on blogging in 2005 that defines blogs in the opening sentence as "personal Web diaries." In my own system of scanning and triaging what I read, I'd move on to something else immediately.

In fairness, the article does point to some recent "guidelines" from the Electronic Frontier Foundation that offer some common sense approaches for employees who blog. And, in fairness, the article does a good job of summarizing some of the relevant legal concerns. It's unfortunate that the author didn't have the chance to read Randy's post about the article to see how a blogger like Randy can use his "personal diary" to write a good article that makes a good point, offers a balanced approach and provides some humor.

But, gee whiz, the hyperbole setting for the CNN Money article is turned all the way up to 10 and the Reefer Madness reference does seem appropriate.

I also got just a tiny sense that perhaps the author is not a blogger and probably hasn't read a lot of blogs.

The money quote:

"The Safest Way of All This isn't in the how-to blog guide, but remember the old days of paper and pen diaries? True, the audience is limited to the authors themselves and maybe a snooping sibling or two. Ones with a lock and key work best."

I'm tempted to write an article about how to write safely about blogging for traditional news publications. I'm not sure that CNN Money understands the major hit its credibility takes when they publish pieces like this one. In my own case, I've knocked CNN Money's credibility as a news resource way down as a result of this article. I've moved Randy's way up.

Look, the issues of blogging by employees are complex and a large number of factors must be considered. Articles like this one don't help the needed discussion (except to the extent that they provoke discussion).

I'm not sure that any company seriously wants to adopt a "put your blog under lock and key" blogging policy, especially if they want to keep their best and most creative and innovative employees. The issues of confidentiality, trade secrets, who speaks on behalf of the company, criticism of the company, and others are important issues that should be addressed (although I'm still surprised to find that they aren't already addressed by exisitng policies in most companies). The key in adopting policies is to balance the competing concerns and to reflect the philosophy and culture of your organization. That's not a purely "legal" decision.

Let me point again to the set of handout materials I prepared for my recent presentation at ABA TECHSHOW on technology use policies, where I tried to take a practical. "fair and balanced" (oops, that's CNN's competitor's tag line, isn't it?) approach to the issues involved in putting together these policies. You can get a PDF file (about 100KB) of that handout here.

My concern is that the more alarmist and sensational the reporting, the more difficult it will be for employers and employees to reach a reasonable balance in developing policies about blogging.

As I said in my presentation, I'd like to see policies based on a notion of "use common sense and good judgment," with the policies specifying the details necessary to help people stay within that philosophy and comply with applicable laws, regulations and contractual requirements. That's quite different than the "use a lock and key" approach. Both are possibilities, but I think your most valuable employees will prefer my approach to the "lock and key" approach.

In today's efforts to land and retain the best talent, you will want to give plenty of thought to the real world consequences of your blogging policies, not just the purely legal issues. Overly alarmist articles are not helpful to your decision-making.

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April 9, 2005

Sound Policy Show Prep: Business Blogging

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Posted by Denise Howell

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.

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

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April 8, 2005

April 3, 2005

April 2, 2005

Seminar Materials on Blogging and Technology Use Policies

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Posted by Dennis M. Kennedy

Tom asked me the other day if I could make a form or two for technology use policies available.

The short answer is "yes." The long answer is that it might take me a little while to do that and I think it is important to help people understand that there are dangers in using forms.

As a down payment, I've placed a PDF version (<100kb) of my handout materials for the recent presentation called "The Annotated Technology Use Policy)" that Blair Janis and I gave yesterday at ABA TECHSHOW 2005. It includes:

Ten Tips for Improving Your Technology Use Policies

Seven Dangers in Using "Standard" Forms

Hot Topics in Technology Use Policies for 2005 – A Checklist
Sample Technology Use Policy - Internet and Email

Resources for Learning About Technology Use Policy Issues

I'll put those materials into HTML next week for those of you who don't like PDF files.

I am curious whether people might be interested in Between Lawyers creating a repository for sample technology use policies so that people will have a single place to go to find a variety of forms to compare approaches, see how others handle issues, what is typically covered and the like.

We'd be happy to take that project on if there is interest in the idea.

PDF file here

...continue reading.

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March 30, 2005

March 29, 2005

Blogging Policy: Ghost-writers?

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Posted by Marty Schwimmer

What's your view on ghost-written blogs? I'm not personally aware of any (;-])but I have seen solicitations for such services. Seems, at a minimum, to defeat one of the points of blogging, and if the blog is identified as the work of a specific lawyer then more troubling issues are raised.

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March 28, 2005

Re: Corporate Blogging Policies and Deja Vu

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Posted by Tom Mighell

You're both right: an internet/technology use policy should cover blogging, but lawyers (or corporate employees) should also at least educate themselves on the niceties of blogging -- how it's different from other types of publishing, and the particular rules of blog-etiquette.

A properly-drafted technology use policy should cover each and every method a lawyer may use to communicate with the outside world -- e-mail, chat rooms, bulletin boards, weblogs, and any other type of online communication.

In addition, I think the surge in law firm blogs may require technology use policies to place more emphasis on compliance with your state bar's particular rules relating to lawyer advertising. More so than any other type of electronic communication, blogs have the potential to contain representations about a lawyer's practice. In Texas, the representations on our firm web site must be approved by the state bar -- in advance of publication, if possible. That's just not realistic with a blog post -- but there may be an even greater risk of violation on blogs, given (as Marty states) the fact that bloggers often post with less introspection than is probably warranted.

Dennis, I know you are giving a presentation on "The Annotated Technology Use Policy: Reining In Your Click-Happy Firm," at ABA TECHSHOW -- will you be able to provide us with a sample policy to share with our readers?

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Blogging Policy: Well, Blogging Is A Little Different

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Posted by Marty Schwimmer

I'm not sure that blogging policy falls squarely under technology use policy, it seems more a species of communications and firm image policy.

I agree that with your main point: there's no good reason why the over-riding content principle of a firm's communications policy that applies to attorneys' other forms of communication would or should apply differently to a blog. Often that policy is going to be: submit to prior review or make sure our name doesn't appear on it (point to discuss later - can a firm effectively disassociate itself from an employee's blog - for example, do people (correctly) perceive that Scobelizer is not a Microsoft blog?).

Assuming a firm is going to allow blogging, it wouldn't hurt if the firm gave pointers, Blogging is different from, for example, a prepared article or speech. For one thing, similar to press interviews, the reduced proofing time creates a greater likelihood of mis-statement and error.

It wouldn't be so horrible if there were guidelines to minimize disasters between firm and blogger, and between blogger and the world. Got any?

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Corporate Blogging Policies and Déjà Vu

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Posted by Dennis M. Kennedy

I’ve been doing some research to put the finishing touches on an upcoming presentation on technology use policies.

I was struck by the number of breathless warnings I found about the need to have “corporate blogging policies” and the hand-wringing concerns about the consequences for corporations who do not step up to the dire need for these policies. Fortunately, and perhaps not surprisingly, the law firms of the authors of most of the articles are prepared to draft these policies for unsuspecting corporations.

If you read enough of these articles, you have the sense that you’ve gotten a glimpse at the legal marketing playbook for 2005.

I don’t mean to diminish the importance of having some kind of coverage of blogging within the context of an overall technology use policy, but I’m a little suspicious of dire warnings on these issues from law firms that show little understanding of or experience with blogging or technology use policies.

Here’s the tip-off – why is anyone talking about a corporate blogging policy as if it is something separate from an organization’s other technology use policy?

I’ve heard people try to argue that “blogs are somehow different,” but I don’t buy it. Maybe my point of view is different because I’ve had a website for nearly ten years and a blog for more than two years, but I just don’t see how blogs raise issues that require a separate kind of treatment.

Blogs raise the same issues as any public-facing technology or, for that matter, any public communications or appearances. If you have a policy that covers websites, email, chat rooms, newsgroups, public speaking, letters to the editor and the like, it’s hard to see how blogs would not be covered.

The irony in all this hype about corporate blogging policies is that ten years ago, the same breathless concerns about websites and email from lawyers prompted the rise of Internet use, email use and technology use policies. How quickly we forget.

Look, using the appearance of blogs as a reason to review and reconsider your existing technology use policy is not a bad thing, and it’s something you probably should do. If you have no technology use policy whatsoever today, using blogging as a catalyst to get that done is a good thing. However, dealing only with blogging issues while leaving security, password, document retention, confidentiality and alone is not a wise move.

Recognize the focus on blogging policies by law firms as the marketing effort that it is, but look behind the marketing message to see if it suggests some re-evaluation that you want to make.

And, if you have the sense that you’ve heard the rationale for blogging policies before, you are correct. I heard most of these arguments almost ten years ago from lawyers who didn’t have much experience with or understanding of the Internet back then either. In the rush to develop the new corporate blogging policy industry, they apparently have forgotten about the other policies they helped you put in place years ago.

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Blogging Policies: Minimizing Legal Risk Can Have Other Consequences

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Posted by Dennis M. Kennedy

A number of friends who want to start blogs have found that their employer’s blogging policy is quite simple: “thou shalt not blog.”

Their experiences point out the fallacy of assuming that there can be one “standard” blogging policy that can simply be adopted by your company.

The “thou shalt not blog” policy is certainly a simple one and it minimizes the legal risk that might arise out of employee blogs.

On the other hand, it also eliminates any potential benefits from employee blogs – increased sales, greater visibility, better customer service and responsiveness and the like. Oh, yeah, and it also guarantees that your most innovative employees will leave your company.

But it does minimize legal risk. Of course, some lawyers would be happy if you stopped selling your products and services in order to minimize your legal risks. It always makes sense to give the legal advice you get a little reality check.

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