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
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
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.
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.
The United States Copyright Code (Rappable Rhyming Version)
U.S. statutes often lack any rhythm and meter, making them difficult to read, let alone understand or memorize. Yehuda Berlinger's The United States Copyright Code, in Verse addresses the problem and might give you an enjoyable way to learn about the basics of copyright law.
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
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.
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.
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.
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.
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).
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.)
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.
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.
Fred von Lohmann's fascinating post on EFF Deep Links called "RIAA Says Ripping CDs to Your iPod is NOT Fair Use" suggests that the RIAA's aggressive policy on how NOT to make friends and influence people continues unabated.
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?
I've been intrigued by the ways people can use blogs and RSS for nonprofit organizations and other charitable efforts, especially after what we saw after the tsunami. A while back, I found Netsquared.org and became acquainted with Marshall Kirkpatrick, who writes a great blog of his own and is involved in the NetSquared effort.
Last night, Marshall and I did an interview session via Skype IM that he's published on the Netsquared site. I cover a wide-ranging list of topics and had a lot of fun doing the interview.
Netsquared has a cool upcoming conference that will bring nonprofit and tech people together. If my interview helps publicize what they are doing, that would be great. Please check out my interview, then spend some time on the Netsquared site and see if you might be able to help out.
So, in technology, Moore’s Law is alive and well. But technology does not operate in a vacuum. No business or government institution can change at 50 per cent a year. While stability and tradition are important, if a fundamental technology progresses far beyond society’s ability to absorb its impacts, a growing disconnection occurs. When, in the 19th century, technology proceeded at a rapid pace while social institutions did not, the results were upheavals and revolutions. Today, again, the key elements of the information economy are progressing at a scorching rate, while private and public institutions are lagging behind.
But, here's the money quote that lawyers those in the tech world should meditate on:
In businesses, competitive pressures lead to a speed-up of internal processes or companies fail. But for government the same is not true, even with globalisation. Courts can take years to resolve disputes. Regulators and legislators require years to establish rules. There is an entire industry out there, the main product of which is delay.
Some of the problems of these decision processes are inherent and based on the need to balance social objectives. But others could be remedied. In the US, the delay in courts could be alleviated by tripling the number of judges. Compared with the overall cost of government, judges are cheap. So are patent examiners. Streamlining administrative law, simplifying the appeals process or creating mandatory arbitration mechanisms should not be expensive. The economic benefits would be incalculable.
One needs focus not just on policy substance but also on its process – the small but constant frictions in the mechanism of government that grind down innovation and threaten to repeal Moore’s Law where physics could not.
Noam makes an interesting observation about patents and patent offices: "Patent offices everywhere are falling behind their workload. It may soon take more than five years to get a patent in the US."
Are we already seeing the symptoms of the increasing pace of the pace of change that Kurzweill has called the coming Singularity?
In other patent news, on Slashdot, ScuttleMonkey points to an article on The Register, based on research from a company that provides proofreading and other services, that says:
Almost every US patent contains at least one mistake, according to new research. The vast majority are trivial errors, most of them the fault of the USPTO; but two per cent of the patents examined were found to contain serious mistakes that weakened the core claims.
Draft of New Version 3 of General Public License Now Available
The biggest news in the world of Open Source licenses these days is that, after 15 years, the GNU General Public License is being revised from version 2 to version 3. THIS IS IMPORTANT. The current draft, more information, rationales for changes and areas to comment and discuss the changes are all available at the GPLv3 site.
From the home page:
The core legal mechanism of the GNU GPL is that of copyleft, which requires modified versions of GPL'd software to be GPL'd themselves. Copyleft is essential for preventing the enclosure of the free software commons, today as it was in 1991. But today's environment is more complex and diverse; thus, a fully effective copyleft calls for additional legal measures. Devising these measures is complicated by another aspect of our success: the worldwide adoption of free software principles. We hope and expect that contributors to GPLv3 will come from all over the globe, and from every developer, distributor, and user constituency.
Bookmark the site and follow and/or join the discussion.
Shelley "Burningbird" Powers in her post called "That Old Copyright Song" is asking all the right questions about how full text RSS feeds may be "repurposed" by other sites and whether and to what extent the copyright rules limit this usage or even apply in this context.
I noticed that Denise Howell, among others has added some comments to Shelley's post (and posted about the issue on Bag & Baggage).
I encourage our intellectual property lawyer audience to consider participating in the conversation in Shelley's comments section.
I've been intrigued by these questions, for which I have not found good answers, since I first saw my full text posts appearing on pages at Bloglines in a way that someone could have easily considered to have been my actual blog.
What I've found that interests me most is that there is an technological argument that "repurposing" full text RSS feeds involves a form of linking rather than a reproduction of the type classically associated with the current copyright law. If that is the case, then it may be that the early web page framing cases, rather than the copyright laws, provide the legal framework for analyzing these issues. To the extent that we call can learn more specifically what is actually happening when feed items are aggregated or repurposed, the discussion of the legal issues will become more focused and more helpful.
At this point, I think it's safe to say that most authors will have at least a visceral reaction to seeing someone making money, by ads or otherwise, by repurposing or publicly aggregating their feed content. On the other hand, most bloggers would probably give permission if asked.
Unfortunately, as Denise noted in her comments to Shelley's post, resolution of these issues in the courts could take years and still leave us with open questions. In the meantime, we all still need to make decisions about how to address these issues. In a nutshell, that points out one of the growing problems with a legal system 1.0 in a web 2.0 world.
It's often a very useful exercise to stand in someone else's shoes and see things through their eyes.
For lawyers, one exercise is to try to see things from the point of view of your clients. When it comes to legal technology, I usually refer to this approach as "client-driven technology."
Michael Kraft and Robert Enholm have written a great new article called "GC Tech Wish List for 2006" that will give lawyers some ideas about how legal technology looks from the corporate counsel's side of the table.
Ryan Paul has a great post on Ars Technica called "Congress Has Big Plans for Technology Reform in 2006." The post nicely summarizes the likely legislative proposals for 2006, all of which should be watched and some of which raise the question of what precisely the word "reform" means in the U.S.. Congress. It looks like there will be plenty to debate this year, although I question whether in an election year we'll see "technology reform" make it any further than "tax reform" or "social security reform" made it in 2005.
In the kind of story that fuels the general level of suspicion many people have about advice from huge consulting firms, I saw that CNET has an article called "Gartner's advice: Halt BlackBerry deployments" that makes the usual advice you get from lawyers seem clear and concise.
I can't resist quoting:
The research note advises enterprises to "stop or delay all mission-critical BlackBerry deployments and investments in the platform until RIM's legal position is clarified," because "U.S. BlackBerry users would lose messaging services...and international users would lose message service while traveling in the U.S."
However, Gartner expects the two companies to reach a settlement within three weeks because an agreement would be "in both companies' interests."
There is a possibility that RIM could bypass the patent dispute by deploying a workaround, but Gartner said this path could be "highly problematic."
"RIM claims its workaround is legally sound, but its history in the courts does not inspire confidence. Moreover, end-user validation and implementation would take time, resulting in a temporary loss of service," the research note said.
Gartner advises enterprises "not to sign any agreements that could involve them in the RIM-NTP dispute" and "demand that RIM discloses its workaround plans."
If RIM deployments are not mission-critical, Gartner said, enterprises could take no action for the moment but rather "assess the potential impact of operation outages of unknown duration."
I believe that advice covers every possible side of this issue and hedges every bet.
In fairness, I read only the article and not the full research report.
Perhaps this is the best summary of the report:
"If you read it closely, we're telling people to sort of take a break here and wait until this case settles within two to three weeks," Gartner analyst Ken Dulaney told Reuters.
Of course, if you expect the case to settle, as everyone seems to believe these days, why report that the sky is falling?
The Grateful Dead ended the controversial reversal in policy made to their long-time concert recording and sharing policy that I mentioned here a few days ago. In other words, the reversal was reversed, as Fred D. mentioned in the comments to my original post.
Fred Wilson sets the story in a traditional holiday framework in his "A Deadhead Carol."
It is difficult to estimate the number of articles and blog posts that have used as an example,the way the Grateful Dead allowed its fans to record concerts and share those recordings. Often, the Grateful Dead's approach was used as a counter-point to the "aggressive" policies of the RIAA. Some even suggested that this approach pointed us toward a future "enlightened" approach to fair use and other copyright policies toward music that reflected the ways people actually used and wanted to use music, especially as part of a community. Some even argue that the approach points to a highly-effective alternative business model for musicians.
Recently, Deadheads and more than a few pundits were surprised by a drastic change in the Grateful Dead's policy.
Dave Bollier's post called "The End of a Long, Strange Journey" does a nice job of summarizing the story (and launching a flurry of references to Grateful Dead song titles).
He reports:
As reported in today’s New York Times (November 30, 2005), they are trying to stop downloads of Dead music from an independent website that has made thousands of recordings of Dead concerts available. The band has asked the Live Music Archive – part of the indispensable Internet Archive run by Brewster Kahle – to make the music available for online streaming only, not downloads.
This has enraged many fans, who consider this move a deep violation of trust with the community of fans. They consider it a betrayal of the band’s deepest ideals. A petition drive has been launched calling for a boycott of Grateful Dead recordings and merchandise unless the decision is reversed.
Yes, in other words, and here comes the obligatory Grateful Dead title reference, the fans plan to keep on truckin' this petition until the policy gets changed.
Why is this important? As Bollier says, "The long, strange journey of the Grateful Dead has taken a new twist, one that forces us to ask – Who really owns music, the artists or the fans? Who owns the value (and values) generated by a band and its fan base, and how should that “wealth” be controlled and allocated? "
And the money quote:
A band spokesman, Dennis McNally, told the Times that Internet music-trading is radically different from the previous kind of sharing because the former does not build community: “One-to-one community building, tape trading, is something we’ve always been about. The idea of a massive one-stop Web site that does not build community is not what we had in mind. Our conclusion has been that it doesn’t represent Grateful Dead values.”
For a band that once celebrated its mystical idealism and blithe defiance of mainstream culture, this explanation has the whiff of lawyerly b.s (emphasis mine). Market control and profit maximization were never high on the list of Dead values. The band was cavalier about intellectual property because its members reaped an ample livelihood, not to mention great fun and joy, by concentrating instead on their be-here-now performances and humanity. The Dead’s franchise was based on their passion and purity, forged in collaboration with an adoring fan community. This not only made them a legend. It was a fantastic business model.
Has that been jettisoned by what remains of the Grateful Dead, who now want to cash in on their archives? Is this the real end of the long, strange journey – a fork in the road that the fans will reject?
The outcome of the dispute will say a lot about who really exerts control in the networked environment and where value resides. It’s a struggle that is playing out in countless permutations in other corners of the Internet. For myself, I’m betting that the Deadheads are likely to be the more enduring and powerful champions of Dead values than the band itself, R.I.P.
That's a big question: Who really exerts control in the networked environment and where does value reside? Another big question is whether our current copyright laws balance those interests and answer that question in a way that makes sense in our networked environment and reflects people's reasonable expectations and, in this case, a pattern of practice upon which people have relied?
In any event, I could not agree more with Bollier that "it’s a struggle that is playing out in countless permutations in other corners of the Internet."
It also raises one of my favorite questions: why isn't it OK to purchase/own a recording of a live concert that you bought a ticket for and attended?
Expect fans to be living under a dark star until this issue gets resolved.
In the article, I take a very practical approach to dealing with the legal risk management issues that arise when a business uses or wants to use Open Source software. I take the somewhat unusual point of view for lawyers that people might actually want to use Open Source software in many situations and that the standard lawyer approach of saying "no" to everything really is not useful. Check it out if Open Source software or that approach to it interests you.
I'll also note that the article grew out of a presentation of mine that helped me put together some of my initial ideas about "open source law." If you read the article, you may see some of the basis for some of my thinking about what we talk about on this blog from time to time under the topic of "open source lawyering."
If my writing on the Open Source licenses piques your interest to delve deeper into the topic, I recommend my article called "A Primer on Open Source Licensing Legal Issues: Copyright, Copyleft and Copyfuture" (PDF), which was one of the earlier law review articles on the Open Source licenses. It's much more academic, but I still think it's very accessible - it still gets downloaded a lot.
Denise Howell
Dennis M. Kennedy
Tom Mighell
Marty Schwimmer
Ernest Svenson
