If they'd have asked me (or perhaps 95% of the over 1,000 people who have voted in the Volokh Conspiracy poll), I'd have told them the last thing they should be doing is invoking the DMCA. Instead I'd have recommended:

• applying an appropriately liberal Creative Commons license,


• holding a mashup contest, and


• showcasing the winner and the top 9 runners up on the firm's home page.

The other side of the professional blogging coin is looking at the business ramification of making money with your blogging. This session will cover the things to consider and that you may regret if you wait to long to address: copyright protection, tax ramifications, managing personal vs. paid-for blogging, your site policies, and blogging ethics.

Here are my top ten legal issues pertinent to this discussion; what are yours?

1. Communications policies (your own, or someone else's which may apply)

2. Intellectual property (your own and third parties')

3. Indirect liability for third party acts

4. Civility

5. Ethics

6. Privacy

7. E-commerce

8. Data ownership, responsibilities

9. Minors

10. Special considerations for regulated businesses/industries

• 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

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.

A little caveat, however:

You can do a lot worse
than learning copyright by verse,
but please be sure to think twice
before acting without a lawyer's advice

[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.

In one of our occasional posts on what goes on behind the scenes at Between Lawyers in which we open the door on how lawyers really discuss legal issues of the day, here's the very learned discussion that ensued:

Dennis (note that Dennis did not realize that Denise had already posted on this topic):"Here's an interesting list on IP extremes [from Mother Jones mag], but when you read the blurb about John Cage below, it makes you wonder whether Marty might have been the lawyer in the case."

The blurb: "FOR INCLUDING a 60-second piece of silence on their album, the Planets were threatened with a lawsuit by the estate of composer John Cage, which said they’d ripped off his silent work 4’33”. The Planets countered that the estate failed to specify which 60 of the 273 seconds in Cage’s piece had been pilfered."

Marty: "I've never heard one of Cage's actual pieces. Are they 'dead air' or is the point that you hear the ambient noises (musicians sitting quietly)?"

Dennis: "Well, 4'33" is an anomalous work in Cage's canon - an intellectual witticism and a response of sorts to critics who thought his music was so darn weird. The answer to your question on the piece is, therefore, "yes." The intention of the silence would be to force you to reconsider what music, sound, silence and performance really are - a riff on Magritte's "Ceci n'est pas une Pipe" painting. It's kind of one trick pony, though, because you can only do something like that once. In its context, then, the lawyer's response to the lawsuit is the perfect artistic response and, in my mind, perhaps the artistic zenith of the legal profession in the last however many hundreds of years. Another contemporary analogy, of course, would be Lou Reed's Metal Machine Music. Excuse me, while I go crank that up and meditate on these artistic thoughts. Just my two cents."

Marty: "I guess my question really was, how did Cage's lawyers know that it was Cage's silence at all? Agreed that it is a truly great response."

Denise: (who noticed that neither Dennis nor Marty had been aware of her post on the topic) "Given that I blogged the Mother Jones List on BL, PLEASE blog at least some of the delightful context set forth in these emails there as well. (And don't be callin' ME no one trick pony, because there obviously are no limits to how many times I can persuasively urge you/all to "blog it.")"

Danny Sullivan has this thorough and link rich post describing Google's new program that enables its Book Search partners to sell works online. (Note the messages in BOLD CAPS, and read all the links.)

The money quote:

So your ability to continue to make copies of your own CDs on your own iPod is entirely a matter of [the RIAA's] sufferance.

Although it was predictable that the RIAA would take this position, it's still sad to see that they want to go down this road. Wouldn't it make more sense to do things that help people enjoy music rather than to try to exact a tribute payment for each way people normally use music?