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

The money quote:

Internet radio is a canary in the coal mine of an insane Net-hostile Regulatorium that stretches from the cableco/telco duopoly to the copyright oligarchs who are strangling what Professor Lessig calls Free Culture. That Regulatorium should be the enemy of every free-market Republican and every free-speech Democrat. It's slowing down the U.S. and its businesses as competitors in the World Wide Marketplace we call the Net.

Will this decision to execute the Internet radio canary motivate us to do what we should have been doing more of for the past ten years? That's up to you and me.

See also Copyright Ruling Sounds the Death of 'Net Radio and The Day the Internet Music Died.

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

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.

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).

[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.

Also included is a new article from Johnson called "The Life of Law Online" that I highly recommend to anyone who wants to think about where law is headed in an increasingly online world.

The new article ends with this paragraph:

Our geographical, sovereign law may be well suited for regulating physical things and protecting us from real world threats. It will undoubtedly persist in its own appropriate environmental niche. But, even in that context, we would do better to treat it as an organism, rather than a mechanism — viewing it as a complex whole, disallowing efforts to redesign it from outside, discrediting efforts to analyze it by reductionist means. In any event, we must recognize that our current legal organism, transplanted online, will not prosper. As we interact globally over the Internet, we create a new non–local citizenry, a netizenry, occupying many different kinds of online spaces that both need and can create rules of their own. The new global metabolism will produce new forms of social order that use fundamentally different forms of repair, goal setting and legitimation. Our old meta–meta–story of citizen consent to a social contract empowering a territorially local government just won’t work in this new context. But new repair mechanisms, new complex systems, new forms of social order will arise. These will involve voluntary navigation and filters, not voting. They will demand and receive deference from local legal regimes, because they will be better than any current legal systems at creating social order online. Long live the new legal organisms of the net.

A profound and fascinating article. Johnson's writings have been a big influence on my thinking for many years and he is one of the giants in both the legal aspects of technology and the use of technology by lawyers. I'm thrilled to learn that Johnson will be speaking at ABA TECHSHOW 2006, where I hope to meet him and say thank you in person.

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