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.
Law Underground is: "a non-profit legal information project," which does (and will) aggregate topical information provided by volunteer lawyers and law students.
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.
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.
Howard Rheingold at Smart Mobs points to the Peer to Patent Project Blog. According to the site, "Sponsored by IBM, the Community Patent Project seeks to create a peer review system for patents that exploits network technology to enable innovation experts to inform the patent examination procedure."
Here's why I put it in the Law 2.0 category
The Community Patent Project aims to design and pilot an online system for peer review of patents. The Community Patent system will support a network of experts to advise the Patent Office on prior art as well as to assist with patentability determinations. By using social software, such as social reputation, collaborative filtering and information visualization tools, we can apply the “wisdom of the crowd” – or, more accurately the wisdom of the experts – to complex social and scientific problems. This could make it easier to protect the inventor’s investment while safeguarding the marketplace of ideas.
The Wired GC reports on recent developments in the "Law 2.0" discussion, which has taken a look at what the current notion of Web 2.0 may mean for the the delivery of legal services and the practice of law. Ideas like open source lawyering, self-service law, virtual law firms and new forms of delivery and billing for services and products all arise in this context.
The Wired GC notes that the Law 2.0 got some recognition, along with similar ideas in other fields, in Dion Hinchcliffe's excellent summary post called "The Web 2.0 Revolution Spawns Offshoots," which references, among other things, the articles that Tom Mighell and I, along with a few other pforward-looking thinkers, helped put together in the recent issue of Law Practice Today.
The money quote from Hinchcliffe's article:
The interrelated, mutually reinforcing concepts in Web 2.0 like true disintermediation, customer self-service, and harnessing collective intelligence, are resonating with many other industries. As it turns out, these industries are in the process of being transformed by technology including the relentless collapse of formal central controls, pervasive Web usage, rapid technological change, and more. These communities seem to be craving a new model for collaboration, relevance, and usefulness. And Web 2.0 seems to give them both a beacon to rally around and a useful set of practices that can then be used for constructive reinvention.
I spent some time today reading posts on Rob Hyndman's excellent blog and was well-rewarded for my efforts. As sometimes happens in blogging, I also noticed I had been unknowingly echo-blogging some of the same things he's been posting on. I recommend that you take a visit to his blog and subscribe to its feed.
In particular, note well his post called "Community Review of EULAs, which points to EULAscan, a new service that is starting to collect community reviews of End User License Agreements (EULAs).
Even if you don't get that whole wiki thing, put your imagination to the potential benefits of online repositories of comments, tips and pointers about certain types of agreements, legal situations, issues, forms and the like that would provide some helpful basic guidance and education. That's part of the notion of open source lawyering and Rob is one of the lawyers who has blog the most frequently about the open source lawyering concerpt.
On a related note, Tom Mighell pointed out to me a while back a software tool called the EULAlyzer (free personal version available), which will analyze the clickthrough agreements that pop-up in front of you everywhere you turn these days. The EULAlyzer doesn't, at this point, provide a lot of helpful legal analysis (at least in my opinion as someone who reviews these types of agreements), but that's not its purpose - it focuses on highlighting some of the interesting surprises you might find in EULAs these days.
I'm fascinated by how the EULAlyzer suggests a foundation from which a much more interesting legal tool set could be created. Imagine that kind of tool on the web as a service and you will get an idea of some of what people have in mind when they talk about legal apps in a Web 2.0 world.
As many of my friends know, I've been bitten by the Web 2.0 bug lately and done a lot of thinking (but not very much public writing yet) about how Web 2.0 might be applied in and to the delivery of legal services and practice of law. Steve Nipper has also recently raised the question about how to bring Web 2.0 into what is fundamentally a Web 1.0 world.
I think that this is a very important, yet quite esoteric, topic. However, The Wired GC has made an enormous contribution to the discussion with his post called "Web 2.0, Law Style," which definitely makes my "must read" category. It's both a good introduction and a map of the territory and its implications.
I expect to see not only more discussion of the topic (and I invite you to use the comments to this post as one method to do that), but some actual announcements of things that fall into the Web 2.0 category, including at least one of the ideas mentioned in the Wired GC's post in the very near future. In fact, I'm quite sure of it.
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.
A most interesting development that bears watching and thinking about:
For many, many years,Cornell's Legal Information Institute has been one of the best legal resouces on the Internet. They've now moved into the new era of wikis and other collaborative tools by announcing their WEX project - an online collaborative legal encyclopedia. It's like the Wikipedia concept, but with some constraints on who may contribute to WEX.
There's no doubt that this will become a premier legal resource.
However, I mention it also because it touches on a topic that has interested us at Between Lawyers for a long time - can something like an "open source" law be created and, if so, what will it look like? WEX strikes me as one model that fits into the concept of open source law. I invite you to discuss this topic.
Bruce MacEwen recently attended a couple of events generally reserved for insiders in the arena of law practice management. Except that Bruce attended these as an acknowledged blogger-in-residence, and has blogged his detailed reports of the proceedings. This is a classic example of the kind of information main stream media outlets can't or won't cover (and specialized media traditionally covers at a snail's pace), but that can be of great interest to a widely dispersed group of people who otherwise would have no way of taking part. So if that's you, go check out:
Guest post regarding our Group Annotation thread. Kevin Heller of TechLawAdvisor responds:
You asked whether group annotation of legal cases would be useful. I say let's find out. I've created a wiki at legal.jot.com . where blawgers and others can help annotate legal decisions. I think this would be much more useful than linking to a pdf file of the decision.
It's also pretty easy to do. First, go to any case page and click the drop down menu title "more actions..." and select Edit Page in WYSIWYG (I assume most everyone is familiar with this). From there you will have access to the text to edit and annotate using the MS word like toolbar.
In this episode, Denise and Tom begin to persuade me, but it's the notion of evolving toward open source law that I find convincing.
I have to admit that Tom and Denise are so darn reasonable and I seem, well, a little petty, almost as if I still hold some kind of grudge since the day the CC group amended the first set of licenses and pointed out the names of people who had suggested the changes and LEFT OUT A MENTION OF MY NAME. Fortunately, I don't let that kind of stuff bother me.
There's a comment on one of the posts in this thread from Karl-Friedricha Lenz, who has written as much and as well about the details of the CC licenses as anyone I know. He raises a great point - maybe now is a good time to consider simplifying the license language and making it a little easier to understand.
I'd also like to see a greater effort made to collect and maintain analysis and interpretative materials. I'd also like to see a stronger leadership role from the CC in letting us know how to enforce these licenses.
I was talking to Tom today about some other things and we discussed this issue a bit.
Tom asked, "Aren't we better off with some license than no license?" You can argue that not having a license allows you to retain as many of your copyright rights as possible and allows a user/publisher to claim as few rights as possible. However, you leave the scope of what someone else can do to later interpretation.
If you use a license (of any kind), you gain the benefit of (1) explicitly setting out the terms of the license and (2) as in the CC licenses, you can disclaim warranties, limit liability and cover other important matters. The second point is very important.
You'll probably agree that these two points make us want to have a license agreement rather than not have one.
That brings us to the second part of the analysis: CC license or custom license. Let's put aside for the moment that my fellow Between Lawyers generous offer of volunteering me to write a custom license in my free time in fact will move me to conclude that a CC license is the way to go.
As the five of us batted around the notion of "open source law," we were intrigued by the idea that by standardizing on a limited number of standard licenses (or standard blogging policies, terms of use, and the like), we all might be better off because we would have standard approaches, standard expectations and we could, in fact, make transactions smoother by limiting the number of approaches for common transactions. For many businesses, then, the legal aspect of these contracts would not be the drafting of contracts by lawyers but the selection of a type of contract that best met the business's comfort with handling legal risks and best matched the way they wanted to deal with their customers, handle disputes and the like.
Over time, disputes would be decreased because people would be working under standard agreements that gave them a known set of expectations and for which a body of interpretation would have grown up. The standardization would reduce the friction that custom (and often ill-matched and poorly drafted) contracts arguably place on transactions.
In a sense, then, we look to the 80/20 rule and say that we are better off with less than perfect contracts and smoother transactions with lower legal costs (with fewer disputes) than we are with contracts that attempt to provide us with perfect protection that cause more disputes and make transactions more difficult.
It's worth emphasizing that this is a radical approach. Yet, I'm coming to believe that it may be what is required in the Internet era.
In that light, the CC licenses represent a good example of this approach. If 14 million pages have CC licenses, then we start to get the benefits of standardization, common interpretation and a reduction in the friction of transactions.
Therefore, I think that it is important to see if we can use a CC license to help further this trend, even if I might quibble with the particulars of the language or find some of it largely impenetrable.
Now, the rest of us have to be a little careful with the reasonableness and low-key approaches of our litigators, Tom and Denise. In a real dispute, they'll both turn this language inside out and point out every bit of vagueness and inconsistency.
Here's an example:
Assume someone improperly uses my material in a "Collective Work" under the CC licenses. I want them to remove my material from the Collective Work. I look at the last sentence of Section 4(a) and it says:
"If You create a Collective Work, upon notice from any Licensor You must, to the extent practicable, remove from the Collective Work any reference to such Licensor or the Original Author, as requested."
Do they have to remove the material or just a reference to my name? Why would I want them to remove my name if the material is still in the Collective Work?
Do you think my easy-going litigator colleagues won't have a field day with that language if a dispute ever arises? Do you have any comfort about how a judge will interpret this language? Do you really think that the nice, easy-to-understand summary will carry the day?
On the other hand, it millions of people are using this license, I think it's more likely that we'll see a more reasonable interpretation than we might in a single contract between two parties.
In the case of the latest generation of the CC licenses, I think that we are past the 80/20 range and, for most authors, the license gets you most of what you want. With 14 million uses of the licenses, we might be able to lobby for clearer provisions.
What's most intriguing to me about the CC licenses (or, more accurately, the widespread adoption of them) is that we can use programming to ensure that material is used in accordance with the applicable license by incorporating the license restrictions into the material. A custom license probably would not offer that same opportunity. This will help everyone. I'd like to have the materials I want to use self-validate that I can use them in the way I want rather than try to figure that out for myself.
As I indicated yesterday, I expect to end up in favor of moving to a CC license. Like Denise, if we reach that decision, I lean toward the most restrictive of those licenses. In other words, I don't want others making money off my work without my permission or some form of revenue sharing; I don't want people using my materials without giving me credit (attribution); and I don't want people turning my material into something else without my permission. These are the premises of the CC license Denise suggested.
If, however, we were in a world of automatic transactions and payments, a license permitting commercial use upon automatic payments might be quite interesting.
Like others have noted, however, some aspects of this license still are not very clear, especially what the meaning of "non-commercial" is.
I think that unless we hear strong objections from Marty and Ernest, you'll be seeing a CC license on this blog in the very near future.
As I mentioned to Tom today, I've all but decided to put a CC license on my seminar materials and slides, so I've been leaning in this direction for a while. I just wish they'd clean up the language a bit.
All right Marty, so maybe no one is annotating circuit court decisions, but you can get your U.S. Code, annotated at GovTrack.us -- just sign up to follow a particular piece of legislation pending in Congress, and you'll receive updates whenever the House or Senate takes action, or when anybody in the blogosphere mentions the legislation by name. Can court opinions be far behind?
By the way, I happen to agree with the Scobleizer that while the NYT Annotated site is pretty cool, Memeorandum is a better annotated news site -- it pulls comments from more than one news source, and it's a heckuva lot easier to read.
Check out this 'annotated' version of the NY Times. Would this form of group annotation be a useful manner of presenting, for example, circuit court decisions? Hat tip, Micropersuasion.
Consistent with "Open Principles"[1] I anticipate that by putting my work online and inviting public comment the finished product will be superior to the result from a "closed" drafting process.
Aldo told me he initially decided to work on his thesis online because he and his mentor "had a heck of a time coordinating contact by phone." I think it's a fantastic idea, and if the topic intrigues you (here's somecontext), I'd encourage you to participate. It's great too to see more of this kind of collaborative, distributed approach being tried by those in the legal field.
Denise Howell
Dennis M. Kennedy
Tom Mighell
Marty Schwimmer
Ernest Svenson
