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.
So — what should Nixon Peabody have done when its embarrassing firm non-theme song made its inevitable way onto the Web? (And into the atmosphere of countless homes and offices, as its hapless victims hum and mutter it against their will and better judgment?)
If they'd have asked me (or perhaps 95% of the over 1,000 people who have voted in the Volokh Conspiracy poll), I'd have told them the last thing they should be doing is invoking the DMCA. Instead I'd have recommended:
applying an appropriately liberal Creative Commons license,
holding a mashup contest, and
showcasing the winner and the top 9 runners up on the firm's home page.
The other side of the professional blogging coin is looking at the business ramification of making money with your blogging. This session will cover the things to consider and that you may regret if you wait to long to address: copyright protection, tax ramifications, managing personal vs. paid-for blogging, your site policies, and blogging ethics.
Here are my top ten legal issues pertinent to this discussion; what are yours?
1. Communications policies (your own, or someone else's which may apply)
2. Intellectual property (your own and third parties')
3. Indirect liability for third party acts
4. Civility
5. Ethics
6. Privacy
7. E-commerce
8. Data ownership, responsibilities
9. Minors
10. Special considerations for regulated businesses/industries
As more and better communication and collaboration functions move to the Web (under non-negotiated, vendor-centric terms of use), what are our obligations as both tech- and ethics-savvy lawyers? I for one am not about to give up Gmail. So, what's the best practice?
Shun Web services, you simply can't control the data? Use Web services only when you have specific, confidentiality and reliability guaranteeing service level agreements? Use Web services liberally, but acquaint yourself with the applicable terms of use and make sure clients are amenable?
Defining community and loosely-joined individuals and interest groups
Community goals and governance (or lack thereof)
External innovation communities such as Procter & Gamble's and ownership issues
Intellectual and liability concerns for company-owned or associated communities
Whether an initiative similar to the Creative Commons movement has or is in the process of emerging
Ownership issues and risk-minimization around products or services that emerge from external ideas
Variations on open source licenses
Individual rights and protections for community contributors and participants
Anonymity and accountability
Nefarious community exploitation: gaming, hacking, spamming
Trust and reputation management
The use of trademark law to use and manage community involvement; selective enforcement, the expansion of certification marks
Insurance industry mechanisms and models
Defamation
Company-sponsored (and owned) communities, and the actions taken by participants who find the terms and conditions of such initiatives too draconian
"Innovator's dilemma" management and patent strategy and the tension between old, successful products and those developed with help from outsourced customer communities
Our rescheduled conference call in anticipation of Community 2.0 (details here) takes place today at 1:00 p.m. PST/3:00 p.m. EST. Call-in details are here, please join us if you are interested.
In connection with our session at the the upcoming Community 2.0 conference, law professor Mike Madison and I will be hosting a public conference call on Monday, February 26 beginning at 1:00 p.m. PST, and we'd love your participation to help us hone in on the ownership considerations (IP; attention; identity), and issues of governance and liability, most critical to the creation, maintenance, and long-term health of business communities. The call will be recorded and made available as a podcast from The Future of Communities blog. You can join us as follows:
From Skype: +990008275785861
From a regular phone (long distance costs apply): US: 1-605-475-8590
In Europe, call: Germany 01805 00 7620 UK 0870 738 0763
[Update, Monday 2/26 @ 1:15 p.m.:] Unfortunately, we had problems with the conferencing service lined up to support this, so are having to reschedule. I'll post the new date, time, and call-in details once they're available, sorry for the delay.
Martin Veitch, The Inquirer: "[T]he day that the language of the billiards hall reaches such depths here, we shall be forced to leave the United Kingdom. "
Unless you're our colleague Ernie, that is: "I don't want to put any disclaimers on my blog," said Ernest Svenson, a blogger better know as Ernie the Attorney. "It's a buy-in to a mindset that I want to go away." Well said, as to what should by rights be able to remain unsaid.
Illustrating the approaches toward blogging policies should be context-specific and not cookie cutter:
Sun Microsystems CEO Jonathan Schwartz: "Our blogging policy is 'Be authentic. Period.'" (It's been awhile since I was showing up bright eyed and bushy tailed for Larry Sonsini's Securities Regs class in law school, but I'd be willing to bet Sun's securities lawyers might want a qualifier or two.)
Summer camps, with camper identities to protect and other considerations, might understandably go a different route. That article also highlights, and Dennis pointed out (by pointing here) on our mailing list, the camps' attempts to police bloggy uses of their trademarks. I'll have to defer to Marty on this but what they're concerned about sounds like nominative fair use.
Gawker, re posting (and substituting) thumbnails of Shiloh Nouvel Jolie-Pitt to illustrate coverage of how "exclusive" magazine photos had leaked to the Web: "[W]e can’t even keep track of what we are and aren’t allowed to do anymore." (The Gawker "Legal" tag is worth following.)
There are a host of reasons (and probably a host of laws) why you wouldn't expect a prosecutor in a criminal case to blog tacky comments about opposing counsel and potentially inadmissible and prejudicial information about a defendant. Notwithstanding, some recent events have prompted the San Francisco D.A.'s office to specify "that criminal cases and office business should not be mentioned on the Internet."
Many, maybe most, weblogs involve some combination of personal and professional material. In recognition of this fact, and in an effort to understand how people are striking this balance in the real world, BlogHer recently conducted a survey and gave a presentation at SXSW, entitled "We Got Naked, Now What? Blogging Naked at Work." From the panel description: "Can you open your kimono in one blog post, and wear a button-down shirt in another?"
Lisa Stonelive-blogged the panel, moderator Elisa Camahort gives this rundown of the survey results, and The Washington Post has this postscript. Among other things, the survey found the majority of the respondents "draw distinct boundaries between public and private information," and (perhaps accordingly?) "83 percent of professional bloggers who responded to BlogHer’s survey indicated that they had never received negative feedback to the personal opinions, feelings and experiences included on their business blogs." The survey also showed the respondents, whether they self-identified as more "personal" or "professional" bloggers, shared a tendency to exercise judgment and discretion as to subject matter:
The top subjects that were considered not suitable for business blogging include romantic/sexual feelings (84 percent), salary/income (77 percent), religious/spiritual beliefs (63 percent), and sexual orientation (57 percent). Surprisingly, the personal bloggers were also likely to consider salary/income (68 percent) and romantic/sexual feelings (50 percent) off-limits. In addition, personal bloggers showed reluctance to discuss feelings about events at work (54 percent).
Alan Weinkrantz will be giving a corporate blogging strategies seminar in Tel Aviv, Israel on April 4. On the agenda, per the press release: "How to start a blogging initiative. What are the elements of a successful blog? What types of blogs should companies consider creating? What steps should companies take to set up a blog? What guidelines should companies have for bloggers? Establishing corporate blogging policies...," and generally how businesses can best use blogs "as a way to develop closer ties to all of their publics."
Also interesting in light of current news stories and discussion is this from the press release:
'A comprehensive blog communications strategy includes targeting specific blogs with relevant information and keeping a close eye on what influential bloggers are saying about one's business, brand, products, competitors or industry issues,' added Rakefet Sudri, sales and marketing manager of PR Newswire Israel. 'PR Newswire has been assisting our customers in targeting and monitoring blogs for some time now. ...'
If you've been following our posts concerning business blogging issues and blogging policies, or if you've just been paying attention to mainstream reporting over the last year or so, you know there has been a good deal of handwringing (some media prompted, some lawyer prompted, some both) about the unique or remarkable legal perils that weblogs and other Web-oriented communication tools supposedly pose for businesses. It was clear to me at last week's New Communications Forum that this meme has had an impact. Even in that very blog-friendly environment, concerns and uncertainties about the legal risks of wholly or partly unfiltered employee communications with the outside world were much in evidence.
Something interesting occurred to me along these lines in the course of being interviewed by Debbie Weil for her podcast. Specifically, of all the various communication tools available to employees, whether while on the job or off the job or both, blogging may actually be the least risky and most innocuous from a corporate risk management standpoint. Consider first that people commonly assume phone, email, cocktail party, and/or hallway discussions are invisible, transitory, and/or confidential. Any one of those situations is thus fairly likely to involve remarks that the speaker, rightly or wrongly, does not expect to come back to haunt them in a public way. Then consider the extent to which public blogs, podcasts, and similar tools are conceptually different from the get-go. The accessible nature of the information put out by these means is part of of the compact. Except in the limited case of behind-the-firewall blogging or podcasting, people using these tools are much more likely to comprehend that a broad audience is possible (usually, desired), and to tailor their communications accordingly.
Unlike a great deal of the reporting I read about the dangers and pitfalls of blogging, I have a hard time isolating any primary legal problems that inevitably go along with employees using communication tools of any sort. Instead, the potential problems are a direct product of the extent to which clear expectations have been set, and the extent to which a particular employee is oblivious or doesn't care. Though there are a host of situations whereby an employee's blog, podcast, photo, or video clip could conceivably subject an employer to third party liability — inadvertent disclosure of confidential or regulated information; harassment, discrimination, or other civil rights violations; false advertising or other unfair competition concerns; and much more — not only are none of them unique to online communications, but it seems to me those using such methods would be almost certain to appreciate that what they're doing is not "private."
Picture a world in which it was a newsworthy event every time someone was fired due to something said in an email or a hallway. Or every time company secrets were clandestinely or inadvertently shared over the phone or over drinks. You'd never hear about the dangers and pitfalls of blogging, because it would constitute such a small part of the overall "problem." (And we could all get back to concentrating on what's reallyimportant.)
Steve Nipper's post called "Comment Policy for this Blog" both highlights a practical (and friendly) approach to some of the legal issues involved with comments on blogs and points out some useful resources about those issues. Of special note is the EFF's FAQ on Section 230 Protections for Bloggers, which is required reading for all bloggers who allow comments and highly recommended reading for people who leave comments on blogs.
A teaser from the FAQ:
Your readers' comments, entries written by guest bloggers, tips sent by email, and information provided to you through an RSS feed would all likely be considered information provided by another content provider. This would mean that you would not be held liable for defamatory statements contained in it. However . . . .
When I set up my Google News alert for the name of my law firm, and added a similar entry to my Technorati watchlist, I thought it was mostly to keep an eye on what people were saying about the firm. Turns out, this is a pretty great way to stay more current on what things people in the law firm are doing — a potentially impossible task when you're talking something like 1,000 lawyers. Thus did I learn that:
Neither is something that would have filtered through the mass of internal email I receive. Both hit my radar instead because I actually pay attention to things I'm affirmatively looking for. I'm glad they did because both are topics I'm interested in.
For anyone fearful of being overwhelmed by their queries and subscriptions (and it's a very well placed fear): just follow Kevin Heller'slead. And for God's sake, use the "download most recent show only" option in iTunes. Your peace of mind will be tangible.
It strikes me that ads that solely announce that the advertiser is suing someone, are unusual. The Word Network is running blogads that are titled 'See Why We Are Suing Sirius' with no text, and a graphic that reproduces part of the caption of the complaint. That's the whole ad.
David Appell's post at TechnologyReview.com's blog called "Google Pettiness" raises the "what's good for the goose is good for the gander" question, among other questions about privacy, media relations and handling criticism. According to the post, it seems Google has ceased communications with CNET for a year because CNET published some information found via the Google search engine that Google apparently found a little embarrassing. Ironically, in so doing, Google has guaranteed that many stories will appear that repeat the information it found problematic.
Wonder where this story will rank on a Google search for "Oh yeah, then I'm not talking to you."
It all goes to show you that it's good to run a Google search on your own name from time to time to see what the Internet world sees when they are looking for you.
Google may suffer more potential harm for perceived high-handedness and vindictiveness than most other companies, so I'm surprised that they are not more careful about this type of things than they seem to be. Part of the aura of Google is that it is a search engine that simply indexes the Internet and helps us find whatever is out there, almost as if for the public good. The notion of the secret Google search algorithm promotes this notion. To the extent that the Google IPO resulted in certain Google people making tons of money, the sense of a "resource for the good of the public" is weakened. To the extent that Google manifests this type of pettiness directed at critics, it potentially damages the aura that the rankings are "objective" and derived from "algorithms. I can't even imagine why they'd take the risk at that kind of self-infllicted damage.
I suspect that we'll see that they soon back away from the "not talking to you" approach. At least Google didn't announce that it would hold its breath until it turned blue unless CNET did something about the story. The Internet audience can be a fickle one, and there has already been plenty of grumbling about Google for a variety of reasons this past year. Pettiness is not a good trait to be associated with a search engine.
All of this is food for thought for anyone who is trying to decide how to respond to what it perceives, rightly or wrongly, to be criticism in these blogging times.
"[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."
Here's a little tale of ketchup, pants, and email to add to your collection of lawyer emails and voicemails that have gone feral and taken on a life of their own. (Via Boing Boing)
NY Lawyer article on Sullivan & Cromwell sanctioned $5000 for delay in disclosing a settlement in a related lawsuit. $5000 is probably less than what the client was charged for dial-a-cars and meals on the case. Does a sanction this size deter or encourage similar behavior in the future?
But today's improved technology has introduced another wrinkle to this problem: missed deadlines due to e-mails mistaken for spam by filtering software. A recent study in the United Kingdom found that "false positives" caused four in ten workers to miss a deadline. Wow -- 40% is a significant number. I am aware of at least one case where a spam-blocker caused an attorney to miss a status conference; fortunately, the lawyer did not get sanctioned for his conduct.
How to avoid this problem? There are two ways, as I see it. First, make sure your spam filter is using "white list" technology, so that approved e-mails always get through. Second, firms that don't use white list technology should consider giving users access to their spam quarantine folders.
To what extent is it appropriate for the online research of government officials and the judiciary to be underwritten by private commercial enterprise? Context. More. (And see Berring on "Infotainment.")
A crazy person gave me a pamphlet one day (aside: I think Hoefler Frere-Jones should design a font called 'crazy person pamphlet' to capture the effect of manual typewritten words with no margins, repeated photo-copying and bad paper).
Most of the pamphlet's advice has been mooted by the fall of the Soviet Union but there was one thing worth remembering:
"It's the absence of small courtesies in everyday life that creates an atmosphere where evil can thrive. Say thank you to your bus driver and cashier."
As Instapundit would say, Indeed.
A colleague maintains a blog. Two months ago a law firm copied one of his case summaries word for word. He contacted them and they apologized and retracted.
Today he emails me again. Another blog has copied a different case summary of his, word for word.
Case summaries have a lot of short declarative unprotectable sentences, "the plaintiff say 'moo', the defendant said 'baaa,' the Court then issued findings of fact."
However they sometimes also (as in the case here), contain enough idiosyncratic phrases that the author can say "A poor thing but mine own."
Forget about copyright. Think of it in terms of manners. Do not copy word for word without credit. Show respect for the small things of others.
It is the absence of small courtesies in everyday life that creates an environment where evil can thrive.
Marty's excellent post today is the kind of thing that, before this blog existed, we might have chewed over in email without ever seeing it expressed on the Web with such pure voice. It's good to see it here.
On the ability of blogs by legal professionals to reduce widespread negative feelings about the law and lawyers, they won't solve the problem but they'll help. As the seats in the infinite auditorium continue to fill (to pilfer Ernie's recent metaphor), a more complete picture of the humans comprising the profession will be there and impossible to ignore. The stereotypes and hatred will get a run for their money. Of course, there will be jerks and lameheads too, and there will be a huge, mostly clumsy rush by lawyers and firms to adopt blogs for their much discussed and undeniable marketing power, without really understanding that what makes the good ones good is the kind of candor and accessiblity exemplified by Marty's post. Even so, as more of the constituent parts of the profession continue sharing what they know and who they are in this format, the harder it will be to generalize about how evil we are, the more accountable the jerks and lameheads will be forced to become, and the easier it will be to help clients do business and dissipate conflicts with fewer undue lawsuits and less undue rancor.
Marty, your post on the TAUBMANSUCKS page raises some larger questions about lawyers and their blawgs:
1. To what extent should a lawyer blawg about his/her own cases? and
2. To what extent should a lawyer use his/her blawg as a weapon?
[okay, these are actually questions you raised in an e-mail, but I found them sufficiently compelling to respond in public.]
With a few exceptions, I think the answers to both are NONE and NONE, for a few reasons:
1. I have seen lawyers blawg about specific lessons they have learned from their own cases, and I think that's a fine and appropriate way of educating other lawyers who may find themselves in similar situations, as long as it's done in a generic and professional way.
Do such posts cross a line when they are openly and personally critical of opposing counsel's conduct, or they set forth, word for word, correspondence between lawyers in a particular matter? I think so -- such posts do nothing to advance the concept of professionalism. I would hate to find words I had written in supposed confidence posted for all to see on the internet, whether my name is used or not.
2. You're right that a blawg has the potential to be a powerful weapon -- a lawyer doesn't like the way he/she is being treated in a case, and here's a forum to complain about it (and the other lawyer) to the entire world. But let's say weblogs didn't exist -- would you then send those thoughts about opposing counsel to your local or state bar journal, or any other publication for that matter, for printing? Probably not. Nor would you post it on your firm web site. Unfortunately, the informal nature of the blog makes it easier to speak your mind, and it can lull us into forgetting that we are still lawyers, communicating with the public at large.
At the risk of spouting off a bunch of cliches about "using a weapon for good," or "with great power comes great responsibility," I think weblogs have the power to transform the practice of law in amazing ways. That said, just because we build ourselves a soapbox doesn't mean we always have to use it.
Boing Boing posted about the TAUBMANSUCKS case, which led massive traffic to defendant's site, which has comprehensively indexed the registrant's (ultimately successful) litigation with plaintiff (and defendant's grievances with plaintiff's lawyer).
Denise Howell
Dennis M. Kennedy
Tom Mighell
Marty Schwimmer
Ernest Svenson
