SPAM NOTES:
a law blog covering electronic communications,
email, social networks, privacy, and more
a law blog covering electronic communications,
email, social networks, privacy, and more
Electronic Communications, Privacy, Data Protection, and More
@TWITTERHULK SMASH INFRINGEMENT CLAIMS?
There has been a proliferation of HULK-themed Twitter accounts.
Some of the fun ones I've come across are:
[h/t @Fritinancy; @mayleechai]
The Boston Globe has a piece by Erin McKean covering this phenomenon - the article notes the differen
t styles employed by the HULKS:
Claims against Twitter are pretty tough, since Twitter is just an intermediary. (See "Tony La Russa's Legal Claims Against Twitter Look Tenuous" and "eBay Mostly Beats Tiffany in the Second Circuit, but False Advertising Claims Remanded.")
As far as claims against the operators of the HULK accounts, the bulk of them fall in the non-commercial category. None of the accounts are selling any products or services that I saw, and this makes trademark infringement, unfair competition, or false endorsement claims tough to bring. (You can see some fine examples of HULK hawking products here ("Hulk Smash Copyright Infringement!").)
How about dilution? I guess there's an argument to be made that to the extent HULK is a famous mark, use of the HULK marks by these HULK-themed twitter accounts dilutes the brand. But, the operators of the HULK accounts have a First Amendment argument that the trademark dilution statute should not reach their actions. As authors of this article note, the recent revisions to the trademark dilution statute incorporate First Amendment defenses:
On to the more important question: who is going to start a @LAWYERHULK (@LEXHULK, @HULKESQ) account?
Some of the fun ones I've come across are:
[h/t @Fritinancy; @mayleechai]
The Boston Globe has a piece by Erin McKean covering this phenomenon - the article notes the differen
t styles employed by the HULKS:I wondered as I read the article whether the owners of the HULK family of marks (probably Marvel or some corporate affiliate of its) would at some point try to shut these accounts down.Some Hulks are purely comedy ploys, rooted more in Hulk persona than Hulk’s speech patterns. . . . . Some Hulks are used as parables . . . . [b]ut the most interesting Hulks are those who exploit the incongruity between Hulkspeak Twitter style and the subject matter of the tweets themselves. By appropriating a lowbrow comic book style to talk about highbrow subjects, the people behind these Hulk Twitter accounts can perform acts of stylistic irony.
Claims against Twitter are pretty tough, since Twitter is just an intermediary. (See "Tony La Russa's Legal Claims Against Twitter Look Tenuous" and "eBay Mostly Beats Tiffany in the Second Circuit, but False Advertising Claims Remanded.")
As far as claims against the operators of the HULK accounts, the bulk of them fall in the non-commercial category. None of the accounts are selling any products or services that I saw, and this makes trademark infringement, unfair competition, or false endorsement claims tough to bring. (You can see some fine examples of HULK hawking products here ("Hulk Smash Copyright Infringement!").)
How about dilution? I guess there's an argument to be made that to the extent HULK is a famous mark, use of the HULK marks by these HULK-themed twitter accounts dilutes the brand. But, the operators of the HULK accounts have a First Amendment argument that the trademark dilution statute should not reach their actions. As authors of this article note, the recent revisions to the trademark dilution statute incorporate First Amendment defenses:
Maybe there's some sort of claim under personality rights statutes? I would guess any such claims would bump up against First Amendment defenses as well. Obviously, the trademark owners may want to consider public reaction and weigh the cost benefit here (and the fact that many of the accounts are entertaining!).Cases decided over the past ten years show that the FTDA always provided ample protection to free speech rights. The TDRA, which makes clear that parody, criticism, and commentary are not actionable under federal dilution law, will serve only to strengthen those protections. Moreover, defendants in § 43(a) cases may still argue that their use is a permissible fair use. In short, concerns that the TDRA will threaten First Amendment rights are unfounded.
On to the more important question: who is going to start a @LAWYERHULK (@LEXHULK, @HULKESQ) account?
Twitter and the Cult of Positivity
A blog post from Kevin Drum ("Bad Mood Blogging") reminded me of something I'd been meaning to post about for a long time: why criticism and critical thinking is the norm in the blogosphere, but not on Twitter.
Blogging: Kevin twisted his ankle and as a result will be on crutches for the next week, and as a result of being on crutches will be in a bad mood. Guess what? He's wound up to blog, rightly thinking that his bad mood should not go do waste:
Blogging stands in sharp contrast to Twitter.
Twitter: Twitter is a big place, and I can't speak for much of Twitter, but my impression is that the mainstream Twitter user is overwhelmingly positive. Positivity certainly reigns supreme in the corner of the Twittersphere that I frequent, and my impression is that there are other pockets of it that are overwhelmingly positive as well. Twitter is all about highlighting positive things and people. The virtual high five or pat on the back is currency on Twitter. Indeed, research is passed around which shows that "negative remarks lead to fewer followers." In my (admittedly anecdotal experience), while there are a few people who call it like they see it, most legal birds are effusive in their praise and quick to withhold criticism. And this extends to points of view taken, articles passed around, etc. It's almost as if it's socially unacceptable to say that something sucks. There are few exceptions to this (again, Twitter is a big place, so there are probably entire pockets of Twitter that are just straight up negative and noir, but I've not really come across them).
One of the exceptions in my Twitter stream is Brian Tannebaum. Brian has a post today talking about how he has been invited to give a talk on online branding. In his post, he notes the same thing that I mention here - that people on Twitter don't look for or foster "dissent":
Now you may or may not share Brian's view of why there's less dissent or critical thinking on Twitter. But I will say one thing. I do note the negative effects of overwhelming positivity: bad content gets passed around freely and praised. Bad ideas too. Bad conferences. Bad people. Bad media. Blogs are a much much better filter of stuff for me (granted you can say more when you are not limited to 140 characters). On Twitter, I'm routinely disappointed with what someone (or many people) often describe as a "great article!"
In fact, I wonder if Twitter overall has had a negative effect on blogs and content from a quality standpoint. Twitter is a huge content promotion and feedback mechanism for blogs and content in general, but people only ever say nice things about blog posts and content on Twitter (the big exception is probably the political Twittersphere, but I'm not too into the 140 character political rants, so I don't know for sure). Rarely do you hear someone say "this blog post sucks" (and trust me, I've come across many blog posts on Twitter where this would have been appropriate). Twitter probably skews in favor of positive blog posts too. I get the feeling critical blog posts don't get a much play on Twitter.
Whether you are a casual Twitter user or someone who Tweets all day, I think it's worth thinking about the effects of this. I also think it's worth thinking about the collective effects. Twitter is hugely influential on everything from movies to journalism to cars. What's the effect of the cult of positivity in other segments or industries? Is it good for entrepreneurs or business people? Journalists? Non-profits? I don't know, but I don't think it's entirely a positive thing for legal birds.
[Don't get me wrong, I'm a huge fan of positivity. I've been described (in-person) as annoyingly enthusiastic or positive. !High five!]
Added:
Blogging: Kevin twisted his ankle and as a result will be on crutches for the next week, and as a result of being on crutches will be in a bad mood. Guess what? He's wound up to blog, rightly thinking that his bad mood should not go do waste:
His last line is interesting. Drum is an old school blogger (one that you may remember reading from his days at CalPundit) and even though I'm a law blogger, I agree with him 100% that while you can say nice things about someone in a blog post, many of the better blog posts involve skewering someone. Although I was never part of the political blogosphere, a "takedown" was traditionally the blogger's stock in trade. That's where bloggers shine.Well, I fell off the bottom rung of a stepladder a couple of hours ago and bent my ankle about 30 or 40 degrees further than nature intended. The good news is that it turned out not to be broken. (Bonus good news: the emergency room was quiet tonight and they got right to me.) The bad news is that it hurts like hell and I'm going to be on crutches for the next week. Needless, to say, this puts me in a terrible mood.
Which shouldn't go to waste! By Monday morning I should be in a nice, foul temper indeed, ready to vent righteously on anybody or anything that crosses my path. So go ahead and leave your requests in comments. Who or what would you like me to skewer?
Blogging stands in sharp contrast to Twitter.
Twitter: Twitter is a big place, and I can't speak for much of Twitter, but my impression is that the mainstream Twitter user is overwhelmingly positive. Positivity certainly reigns supreme in the corner of the Twittersphere that I frequent, and my impression is that there are other pockets of it that are overwhelmingly positive as well. Twitter is all about highlighting positive things and people. The virtual high five or pat on the back is currency on Twitter. Indeed, research is passed around which shows that "negative remarks lead to fewer followers." In my (admittedly anecdotal experience), while there are a few people who call it like they see it, most legal birds are effusive in their praise and quick to withhold criticism. And this extends to points of view taken, articles passed around, etc. It's almost as if it's socially unacceptable to say that something sucks. There are few exceptions to this (again, Twitter is a big place, so there are probably entire pockets of Twitter that are just straight up negative and noir, but I've not really come across them).
One of the exceptions in my Twitter stream is Brian Tannebaum. Brian has a post today talking about how he has been invited to give a talk on online branding. In his post, he notes the same thing that I mention here - that people on Twitter don't look for or foster "dissent":
___The social media folk will never understand the value of negativity. The value of accepting a dissenting voice, a person who questions both it, and the people behind the curtain. To the social media types, transparency is the enemy of their business.
Now you may or may not share Brian's view of why there's less dissent or critical thinking on Twitter. But I will say one thing. I do note the negative effects of overwhelming positivity: bad content gets passed around freely and praised. Bad ideas too. Bad conferences. Bad people. Bad media. Blogs are a much much better filter of stuff for me (granted you can say more when you are not limited to 140 characters). On Twitter, I'm routinely disappointed with what someone (or many people) often describe as a "great article!"
In fact, I wonder if Twitter overall has had a negative effect on blogs and content from a quality standpoint. Twitter is a huge content promotion and feedback mechanism for blogs and content in general, but people only ever say nice things about blog posts and content on Twitter (the big exception is probably the political Twittersphere, but I'm not too into the 140 character political rants, so I don't know for sure). Rarely do you hear someone say "this blog post sucks" (and trust me, I've come across many blog posts on Twitter where this would have been appropriate). Twitter probably skews in favor of positive blog posts too. I get the feeling critical blog posts don't get a much play on Twitter.
Whether you are a casual Twitter user or someone who Tweets all day, I think it's worth thinking about the effects of this. I also think it's worth thinking about the collective effects. Twitter is hugely influential on everything from movies to journalism to cars. What's the effect of the cult of positivity in other segments or industries? Is it good for entrepreneurs or business people? Journalists? Non-profits? I don't know, but I don't think it's entirely a positive thing for legal birds.
[Don't get me wrong, I'm a huge fan of positivity. I've been described (in-person) as annoyingly enthusiastic or positive. !High five!]
Added:
"Think People Are Too Negative Online? Welcome to the Internet" (An Associate's Mind)
"What Is It About Twitter" (Simple Justice)
First Amendment-Challenged Constitutionalist Puts Foot in Tweet
Dr. Laura, a radio show host (whose show I've never listened to, and for better or worse will never be able to listen to), recently came under fire for saying some inflammatory stuff. In light of the response, she quit her program. Sarah Palin offered Dr. Laura support by tweeting the following:
[Saw what you will about Palin, I'm guessing basedon this that you can't accuse her of using a ghost-tweeter . . . but younever know.]
I noticed that Marc Randazza posted about Dr. Laura's decision, in an interesting post arguing that allowing people to come after Dr. Laura with pitchforks because she uttered a word that was off-limits unduly empowered the word. I don't comment on political stuff much but I was surprised that Randazza did not mention Sarah Palin's comments in his post. Her comments may have come after Randazza's post (and I know Randazza is not big on Twitter anyway) so I forwarded him Palin's tweet along with a few comments.
True to form, Randazza takes Palin to task for her First Amendment challenged comments and gives her a necessary lesson in the First Amendment. Check out his post: "Dr. Laura, Bible Spice, and the First Amendment." Also check out a related post ("The First Amendment, Simplified") from Scott Greenfield, who includes a gratuitous reference to me in his post. (I thanked Scott in the comments, and Scott responded that this is the beauty of a gratuitous reference - he needn't be thanked for it. This is true, except when you consider how hard it can be to spell my name (unless you cut and paste, which I'm guessing most people do)!)
Anyway, I'm glad Scott and Marc gave Ms. Palin a much needed lesson in the First Amendment. Also, congrats also to Randazza and the crew, who recently completed the 2000 post milestone.
Dr.Laura:don't retreat...reload! (Steps aside bc her 1st Amend.rights ceased 2exist thx 2activists trying 2silence"isn't American,not fair")
Sarah Palin
SarahPalinUSA
[Saw what you will about Palin, I'm guessing basedon this that you can't accuse her of using a ghost-tweeter . . . but younever know.]
I noticed that Marc Randazza posted about Dr. Laura's decision, in an interesting post arguing that allowing people to come after Dr. Laura with pitchforks because she uttered a word that was off-limits unduly empowered the word. I don't comment on political stuff much but I was surprised that Randazza did not mention Sarah Palin's comments in his post. Her comments may have come after Randazza's post (and I know Randazza is not big on Twitter anyway) so I forwarded him Palin's tweet along with a few comments.
True to form, Randazza takes Palin to task for her First Amendment challenged comments and gives her a necessary lesson in the First Amendment. Check out his post: "Dr. Laura, Bible Spice, and the First Amendment." Also check out a related post ("The First Amendment, Simplified") from Scott Greenfield, who includes a gratuitous reference to me in his post. (I thanked Scott in the comments, and Scott responded that this is the beauty of a gratuitous reference - he needn't be thanked for it. This is true, except when you consider how hard it can be to spell my name (unless you cut and paste, which I'm guessing most people do)!)
Anyway, I'm glad Scott and Marc gave Ms. Palin a much needed lesson in the First Amendment. Also, congrats also to Randazza and the crew, who recently completed the 2000 post milestone.
SMC Seattle Workshop: Social Media & the Law
I recently had a chance to speak on a panel titled "Social Media & the Law," organized by SMC Seattle. Also on the panel were Bill Carleton, Madhu Singh, and Rebecca Yoshitani. Thanks to Maya Bisineer and Richard Wood for organizing the event and to Summit Law for hosting!
There were good questions and discussion, and SMC Seattle seems like a fun group (I hope to make it to other events). My part of the discussion focused on third party platforms (from a consumer perspective). I uploaded my presentation to Scribd and you can access it here.
William has a recap of the event, with a photo. His part of the discussion was, as he described it, abstract, which made it fun and interesting.
One message which I hoped to get across is that while there are many interesting legal issues around the fringes, and many opportunities to say and do imprudent things while trying to get a handle on social media, outside of certain very narrow exceptions, you shouldn't let risk of liability stop you from going online and using online tools.
There were good questions and discussion, and SMC Seattle seems like a fun group (I hope to make it to other events). My part of the discussion focused on third party platforms (from a consumer perspective). I uploaded my presentation to Scribd and you can access it here.
William has a recap of the event, with a photo. His part of the discussion was, as he described it, abstract, which made it fun and interesting.
One message which I hoped to get across is that while there are many interesting legal issues around the fringes, and many opportunities to say and do imprudent things while trying to get a handle on social media, outside of certain very narrow exceptions, you shouldn't let risk of liability stop you from going online and using online tools.
Waiting for the Parade of Twitter Lawsuits?
Legal Blog Watch asks "What Damages, Crimes and Injuries Has Twitter Led To?" (They're crowdsourcing this one, so if you have any input, head on over to LBW and weigh in.)
As legal professionals embraced Twitter, we wondered how this would change the legal landscape. We wondered if it would turn the legal world upside down (soon we'll be effecting service of process through Twitter!). Given the premise of Twitter - to disclose bits of personal information, often driven by impulse - you would think we would have seen a host of "Twitter lawsuits" by now? No such luck.
It's possible that lawsuits have been filed and haven't percolated through the system yet, but from the perspective of someone who keeps loose tabs on lawsuits in the social media space, we've seen very few lawsuits involving activity on Twitter, and even fewer that were uniquely caused by activity on Twitter.
Twitter is nothing more than another mode of communication. In the same way that blog posts and email (and other modes of communication) have spawned lawsuits, Twitter has spawned a few. The three that come to mind are: (1) the lawsuit against Courtney Love brought by her ex-designer; (2) the lawsuit filed against the ex-tenant who complained about her apartment being moldy; and (3) the dispute between AFP and the Haitian photographer where AFP allegedly took images from a twitpic account and broadly disseminated them thinking they obtained a license. Twitter has also spawned a few criminal prosecutions: (1) the guy in New York who tweeted the locations of the police who were engaging in crowd control; and (2) the guy who tweeted a bomb joke while at the airport. (I don't recall exactly, but I think incidents of Twitter hacking have resulted in a prosecution or two, and I wouldn't be surprised to see criminal prosecutions arising from phishing or other similar activity engaged in through Twitter.) Twitter activity has been cited by plaintiffs in a few brand-related lawsuits, but usually as part of a longer list of other actions taken by the defendant (e.g., defendant used my trademark on Facebook, on the internet, and on Twitter). [Tony La Russa's ill-fated lawsuit against Twitter is one exception. This lawsuit centered around a fake Twitter account.]
We'll have to wait and see, but my instinct is that there haven't been, and nor will there be, a flurry of lawsuits "caused by activity on Twitter." I think this is partially a function of the fact that it's tough to premise liability on links, and this leaves just 140 characters. As far as claims based on the text of tweets themselves, unless you are really consciously engaging in injurious activity, I would think it would be tough to get into trouble. On the civil side, I can think of a few bases of liability based on Twitter activity, and even these feel like a stretch when you look at a person's typical Twitter stream: (1) defamation; (2) brand-related injuries; (3) disclosure of confidential information (this is an off-the-cuff and obviously incomplete list).
At this point at least, civil liability caused by activity on Twitter has been far eclipsed by brand fallout from Twitter activity. So why is there an impression out there of widespread liability from Twitter use? I think it's a combination of lawyers and the media being overly excited about Twitter and bringing an inordinate amount of attention to anything involving Twitter (I'm probably part of the guilty crowd here). A run of the mill defamation lawsuit filed against Courtney Love would (much to Ms. Love's chagrin) likely receive minimal attention (except maybe in the gossip and entertainment industry publications). But because the lawsuit against Ms. Love involved Twitter, it received extensive coverage.
So, to answer LBW's question, of "what damages, crimes, and injuries" has Twitter led to? In my estimation, not much. As far as "Twitter law," which is mentioned in LBW's post, I'll leave that one to the experts . . . I'm most definitely not one!
As legal professionals embraced Twitter, we wondered how this would change the legal landscape. We wondered if it would turn the legal world upside down (soon we'll be effecting service of process through Twitter!). Given the premise of Twitter - to disclose bits of personal information, often driven by impulse - you would think we would have seen a host of "Twitter lawsuits" by now? No such luck.
It's possible that lawsuits have been filed and haven't percolated through the system yet, but from the perspective of someone who keeps loose tabs on lawsuits in the social media space, we've seen very few lawsuits involving activity on Twitter, and even fewer that were uniquely caused by activity on Twitter. Twitter is nothing more than another mode of communication. In the same way that blog posts and email (and other modes of communication) have spawned lawsuits, Twitter has spawned a few. The three that come to mind are: (1) the lawsuit against Courtney Love brought by her ex-designer; (2) the lawsuit filed against the ex-tenant who complained about her apartment being moldy; and (3) the dispute between AFP and the Haitian photographer where AFP allegedly took images from a twitpic account and broadly disseminated them thinking they obtained a license. Twitter has also spawned a few criminal prosecutions: (1) the guy in New York who tweeted the locations of the police who were engaging in crowd control; and (2) the guy who tweeted a bomb joke while at the airport. (I don't recall exactly, but I think incidents of Twitter hacking have resulted in a prosecution or two, and I wouldn't be surprised to see criminal prosecutions arising from phishing or other similar activity engaged in through Twitter.) Twitter activity has been cited by plaintiffs in a few brand-related lawsuits, but usually as part of a longer list of other actions taken by the defendant (e.g., defendant used my trademark on Facebook, on the internet, and on Twitter). [Tony La Russa's ill-fated lawsuit against Twitter is one exception. This lawsuit centered around a fake Twitter account.]
We'll have to wait and see, but my instinct is that there haven't been, and nor will there be, a flurry of lawsuits "caused by activity on Twitter." I think this is partially a function of the fact that it's tough to premise liability on links, and this leaves just 140 characters. As far as claims based on the text of tweets themselves, unless you are really consciously engaging in injurious activity, I would think it would be tough to get into trouble. On the civil side, I can think of a few bases of liability based on Twitter activity, and even these feel like a stretch when you look at a person's typical Twitter stream: (1) defamation; (2) brand-related injuries; (3) disclosure of confidential information (this is an off-the-cuff and obviously incomplete list).
At this point at least, civil liability caused by activity on Twitter has been far eclipsed by brand fallout from Twitter activity. So why is there an impression out there of widespread liability from Twitter use? I think it's a combination of lawyers and the media being overly excited about Twitter and bringing an inordinate amount of attention to anything involving Twitter (I'm probably part of the guilty crowd here). A run of the mill defamation lawsuit filed against Courtney Love would (much to Ms. Love's chagrin) likely receive minimal attention (except maybe in the gossip and entertainment industry publications). But because the lawsuit against Ms. Love involved Twitter, it received extensive coverage.
So, to answer LBW's question, of "what damages, crimes, and injuries" has Twitter led to? In my estimation, not much. As far as "Twitter law," which is mentioned in LBW's post, I'll leave that one to the experts . . . I'm most definitely not one!
First Voice Mail and Now the Phone Call?
A pair of posts that talk about the death of voice mail and the phone.
Legal Blog Watch talks about a recent article and a Deloitte report that looks into whether Gen X and Gen Y no longer prefer (or even respond to) voice mail: "Why No One Under 30 Answers Your Voice Mail." Good post with good comments. I'm anti-voice mail myself and for me there's a simple reason. I read a lot faster than I process audio (I strongly prefer blog posts to podcasts for this reason). There's probably a bit of the shortened attention span/immediate gratification going on here as well, but the bottom line is that for simple messages, email is more efficient for me, as the recipient. I have to give a quick nod to a comment from Scott Greenfield, which takes the subjects of one of the studies to task for not listening to voice mails left by their employers. This is on point (although it's odd that the employers were complaining about "broadcast messages" which are typically worth deleting without a listen). She who signs the paycheck gets to dictate the mode of communication. It's tough to argue with this. I have a short list of people whose voice mails I will listen to and this obviously includes clients.
[If you are leaving a voice mail and you're worried about whether the recipient will listen to it, maybe you can also have it transcribed and emailed to them, or as one of the articles suggest, emailed as an audio file.]
At the end of the day, I wont lament the loss of voice mail. I'm sure it was a useful invention for a spell, but its time has come and gone.
Wired magazine has a piece by Clive Thompson "on the Death of the Phone Call" and the reasons for this [via Bobulate/ Don Cruse]:
I'm sure a lot of ink will be spilled on whether the shift away from the phone to other modes of communication is good or bad, from the perspective of human interaction, etiquette, productivity, etc., but I can unequivocally state that I won't miss either the phone call or voice mail.
Hopefully over time, I can shorten the list of people (through training - you may notice my email response is slightly quicker than my response to voice mail) whose voice mails I have to respond to!
Legal Blog Watch talks about a recent article and a Deloitte report that looks into whether Gen X and Gen Y no longer prefer (or even respond to) voice mail: "Why No One Under 30 Answers Your Voice Mail." Good post with good comments. I'm anti-voice mail myself and for me there's a simple reason. I read a lot faster than I process audio (I strongly prefer blog posts to podcasts for this reason). There's probably a bit of the shortened attention span/immediate gratification going on here as well, but the bottom line is that for simple messages, email is more efficient for me, as the recipient. I have to give a quick nod to a comment from Scott Greenfield, which takes the subjects of one of the studies to task for not listening to voice mails left by their employers. This is on point (although it's odd that the employers were complaining about "broadcast messages" which are typically worth deleting without a listen). She who signs the paycheck gets to dictate the mode of communication. It's tough to argue with this. I have a short list of people whose voice mails I will listen to and this obviously includes clients.
[If you are leaving a voice mail and you're worried about whether the recipient will listen to it, maybe you can also have it transcribed and emailed to them, or as one of the articles suggest, emailed as an audio file.]
At the end of the day, I wont lament the loss of voice mail. I'm sure it was a useful invention for a spell, but its time has come and gone.
Wired magazine has a piece by Clive Thompson "on the Death of the Phone Call" and the reasons for this [via Bobulate/ Don Cruse]:
As far as the phone call goes I think I have an irrational dislike - maybe even a phobia - of phone calls. I have no idea why, but I've never liked the phone call, particularly the business call (it doesn't matter whether I'm initiating the call or the recipient of a call). I deal well with people in person and can speak reasonably well publicly/in court, etc. But I don't like making even a mundane phone call. The conference call is even worse. Rare is the conference call when you're not sitting there with someone droning on.This generation doesn’t make phone calls, because everyone is in constant, lightweight contact in so many other ways: texting, chatting, and social-network messaging. And we don’t just have more options than we used to. We have better ones: These new forms of communication have exposed the fact that the voice call is badly designed. It deserves to die.
Consider: If I suddenly decide I want to dial you up, I have no way of knowing whether you’re busy, and you have no idea why I’m calling. We have to open Schrödinger’s box every time, having a conversation to figure out whether it’s OK to have a conversation. Plus, voice calls are emotionally high-bandwidth, which is why it’s so weirdly exhausting to be interrupted by one. (We apparently find voicemail even more excruciating: Studies show that more than a fifth of all voice messages are never listened to.)
The telephone, in other words, doesn’t provide any information about status, so we are constantly interrupting one another. The other tools at our disposal are more polite. Instant messaging lets us detect whether our friends are busy without our bugging them, and texting lets us ping one another asynchronously. (Plus, we can spend more time thinking about what we want to say.) For all the hue and cry about becoming an “always on” society, we’re actually moving away from the demand that everyone be available immediately.
I'm sure a lot of ink will be spilled on whether the shift away from the phone to other modes of communication is good or bad, from the perspective of human interaction, etiquette, productivity, etc., but I can unequivocally state that I won't miss either the phone call or voice mail.
Hopefully over time, I can shorten the list of people (through training - you may notice my email response is slightly quicker than my response to voice mail) whose voice mails I have to respond to!
Is JetBlue [Social-Media] Being Muzzled by its Lawyers?
An interesting article in Ad Age speculates as to why JetBlue has been strangely silent over the whole Steve Slater (the drop a few F-bombs, take a bottle of beer or two, and slide off the inflatable slide @ JFK guy - in other words, a folk hero!) incident.
Slater has spawned a slew of websites and activity on the internet and elsewhere (Facebook pages, legal defense funds, Today Show appearances, etc.). Yet JetBlue has said nothing or virtually nothing about this. Ad Age asked around and JetBlue declined to comment. The answer may lie in JetBlue's legal department:
While Mr. Slater's actions have been overwhelmingly met with cheers from the public, the legal ramifications of his behavior are numerous. "People are laughing in support of this guy, but as much as they would like to keep that humor about it, they have to worry about lawsuits," said Michael J. McSunas, a lawyer with Chambliss, Bahner & Stophel, P.C.
McSunas's thinking seems sound to me, although I wonder if it falls on the conservative side of the spectrum for two reasons:
Added: Slater wins the "Alpha Dog of the Week" award from Colbert (hilarious clip):
More:
Slater has spawned a slew of websites and activity on the internet and elsewhere (Facebook pages, legal defense funds, Today Show appearances, etc.). Yet JetBlue has said nothing or virtually nothing about this. Ad Age asked around and JetBlue declined to comment. The answer may lie in JetBlue's legal department:
While Mr. Slater's actions have been overwhelmingly met with cheers from the public, the legal ramifications of his behavior are numerous. "People are laughing in support of this guy, but as much as they would like to keep that humor about it, they have to worry about lawsuits," said Michael J. McSunas, a lawyer with Chambliss, Bahner & Stophel, P.C.As Ad Age notes, in the eyes of the public, this results in a strange inconsistency. The (online) public is used to getting everything straight from JetBlue, but here they are being silent on an issue that's fully captured the public's attention.
Mr. McSunas said that if JetBlue is observed to be taking the matter lightly on Twitter or in discussions with the media, it could be used against the company by Mr. Slater or the Federal Aviation Authority. "He can say the company's position was that it wasn't a serious issue. ... The FAA could say this is a major breach and you're not taking it seriously and are making light of it." It's possible that passengers on the flight could bring legal action too.
"I guess they could say they suffered emotional trauma. Whether they'd be successful or not is a different story," said Mr. McSunas. "I would advise a client to not necessarily address the matter on Twitter or Facebook, but if people are posting about it, respond with something like, 'Joking aside, this is a serious issue, and our passengers safety and security is the number one priority for us.'"
McSunas's thinking seems sound to me, although I wonder if it falls on the conservative side of the spectrum for two reasons:
1. You don't have to be an employment law whiz to see that Slater probably doesn't have colorable claims against JetBlue based on this incident (assuming it doesn't say anything defamatory or otherwise get into trouble based on after-the-fact statements or disclosures) and any claims Slater has will probably be more than offset by JetBlue's on claims against him. (Unless JetBlue does something really crazy, I can't see Slater wanting to sue it anyway.) I guess passengers may try to assert claims, but how useful will JetBlue's after-the-fact reaction be to the passengers' legal claims?Food for thought.
2. I think any response from JetBlue should be thought out, but I wonder if humor is an effective vehicle here. Are courts hip enough to online conversations to realize when something is said for humorous effect and not intended to be taken seriously?
Added: Slater wins the "Alpha Dog of the Week" award from Colbert (hilarious clip):
| The Colbert Report | Mon - Thurs 11:30pm / 10:30c | |||
| Alpha Dog of the Week - Steven Slater | ||||
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More:
JetBlue blog dies after the company mentions Sliding Steven Slater. http://bit.ly/aQEAyz Story: http://bit.ly/cUST9H
Robert McMillan
bobmcmillan
Was a Copy of the Prop 8 Decision Leaked?
I followed the Prop 8 coverage mostly on Twitter, and the first place to break the news about the decision (which I came across) was New York Magazine. Its initial post (now updated) cited to a source and indicated that Judge Walker's decision struck down Prop 8. At this point, the decision had not been released.
At some point, the decision was released and many news organizations and websites posted a copy of it, but someone I followed on Twitter raised the question of whether a version on scribd was the actual signed order:
I also came across another tweet that mentioned people waiting at the clerk's office which indicated that the decision would be released at 2pm, while at the same time media were reporting on the decision:
I'm totally speculating here (and this feels peripheral to the outcome), but this just struck me as odd. (I'm not sure how the judge's signature>clerk's office>ECF/public posting process or timing works, and come to think of it, I'm curious!)
Added: Advocate.com (Breaking: Prop. 8 Overturned): "The decision was released on the court website shortly after 2 p.m., though a leaked version went viral on the Internet shortly after 1 p.m. Pacific time."
At some point, the decision was released and many news organizations and websites posted a copy of it, but someone I followed on Twitter raised the question of whether a version on scribd was the actual signed order:
Purported #Prop8 decision on Scribd http://scr.bi/beFRhv not dated or stamped
Robert Richards
richards1000
I also came across another tweet that mentioned people waiting at the clerk's office which indicated that the decision would be released at 2pm, while at the same time media were reporting on the decision:
RT @moyalynne (at ct) Bizarre - Clerk told us wait downstairs for paper copies that will come out 2p. Some tweets already reporting #prop8
ilona
ilona
I'm totally speculating here (and this feels peripheral to the outcome), but this just struck me as odd. (I'm not sure how the judge's signature>clerk's office>ECF/public posting process or timing works, and come to think of it, I'm curious!)
Added: Advocate.com (Breaking: Prop. 8 Overturned): "The decision was released on the court website shortly after 2 p.m., though a leaked version went viral on the Internet shortly after 1 p.m. Pacific time."
Miami-Dade Metro Tries to Impose Lifetime Ban on Photojournalists for Taking Photos
The harassment of photographers by law enforcement is an unfortunately common scenario, which occurs in the United States. It has received a growing amount of attention, but nevertheless seems to continue. 
Websites such as Boing Boing have done a good job of highlighting these scenarios. The ACLU has often been involved on the side of photographers: "ACLU of Washington Wins Compensation For Wrongfully Arrested Photographer." (The role of the internet and YouTube in raising awareness is also worthy of mention: "Traffic stop video on YouTube sparks debate on police use of Md. wiretap laws.") Security expert Bruce Schneier has posted on the war on photography before, and in one post in particular, he argued that terrorists don't photograph in preparation for their activities.
Enter Carlos Miller, who publishes Photography is Not a Crime, an excellent blog which shines the spotlight on these types of situations and the rights of photographers in general. Mr. Miller has been involved in one or more such situations himself. Miller and veteran photojournalist Stretch Ledford ratcheted things up a notch, when they decided to ride the Miami-Dade Metrorail and take some photographs in the process. Unfortunately for Miami-Dade Metro, Miller and Ledford also happened to have a video camera with them.
Check out Miller's account of the episode at his blog here and Ledford's account here. (Ledford has been harassed by authorities (while trying to photograph) in a long list of countries, and it does not look like he is inclined to put up with it in the United States.) Miller and Ledford did their homework. They contacted Miami-Dade Metro head of security ahead of time. They brought along a video camera. And they lined up a First Amendment/media lawyer. According to Miller, Miller and Ledford were not allowed to take (or make, in photographer parlance) any photos. Worse yet, they were permanently banned from setting foot on Metrorail property.
I don't think this is going to end well for Miami-Data Metro, which is probably going to have to retract the permanent ban, and at least offer to train the security guards who are contracted for security by Metro.
Two things worth noting. First, numerous law enforcement figures were involved in the situation, and all of the authorities kept ceding jurisdiction to someone else. If terrorism-related photography was truly a concern, you would think that escalating the situation would result in involvement by someone who could actually make a call as to what the right thing to do was in the situation. No offense against security guards, but ceding jurisdiction to "50 State Security" over the issue of whether Ledford and Miller should have been allowed to photograph does not do much for the overall argument that photography should be restricted for security reasons. Second, there's a written policy in place. The policy is far from a model of clarity, and there are plenty of reasons to fault the policy, but what's striking is the disconnect between the policy and what the security guards and law enforcement say about what is permitted.
Some tips to be gleaned from Miller and Ledford's approach: (1) they were courteous but informed in advance about their rights; (2) they clearly and calmly explained to the authorities why they were in the right; (3) they demonstrated an ability to defuse the situation; and (4) they documented the situation.
[Photo by WordWridden/Creative Commons license]
Websites such as Boing Boing have done a good job of highlighting these scenarios. The ACLU has often been involved on the side of photographers: "ACLU of Washington Wins Compensation For Wrongfully Arrested Photographer." (The role of the internet and YouTube in raising awareness is also worthy of mention: "Traffic stop video on YouTube sparks debate on police use of Md. wiretap laws.") Security expert Bruce Schneier has posted on the war on photography before, and in one post in particular, he argued that terrorists don't photograph in preparation for their activities. Enter Carlos Miller, who publishes Photography is Not a Crime, an excellent blog which shines the spotlight on these types of situations and the rights of photographers in general. Mr. Miller has been involved in one or more such situations himself. Miller and veteran photojournalist Stretch Ledford ratcheted things up a notch, when they decided to ride the Miami-Dade Metrorail and take some photographs in the process. Unfortunately for Miami-Dade Metro, Miller and Ledford also happened to have a video camera with them.
Check out Miller's account of the episode at his blog here and Ledford's account here. (Ledford has been harassed by authorities (while trying to photograph) in a long list of countries, and it does not look like he is inclined to put up with it in the United States.) Miller and Ledford did their homework. They contacted Miami-Dade Metro head of security ahead of time. They brought along a video camera. And they lined up a First Amendment/media lawyer. According to Miller, Miller and Ledford were not allowed to take (or make, in photographer parlance) any photos. Worse yet, they were permanently banned from setting foot on Metrorail property.
I don't think this is going to end well for Miami-Data Metro, which is probably going to have to retract the permanent ban, and at least offer to train the security guards who are contracted for security by Metro.
Two things worth noting. First, numerous law enforcement figures were involved in the situation, and all of the authorities kept ceding jurisdiction to someone else. If terrorism-related photography was truly a concern, you would think that escalating the situation would result in involvement by someone who could actually make a call as to what the right thing to do was in the situation. No offense against security guards, but ceding jurisdiction to "50 State Security" over the issue of whether Ledford and Miller should have been allowed to photograph does not do much for the overall argument that photography should be restricted for security reasons. Second, there's a written policy in place. The policy is far from a model of clarity, and there are plenty of reasons to fault the policy, but what's striking is the disconnect between the policy and what the security guards and law enforcement say about what is permitted.
Some tips to be gleaned from Miller and Ledford's approach: (1) they were courteous but informed in advance about their rights; (2) they clearly and calmly explained to the authorities why they were in the right; (3) they demonstrated an ability to defuse the situation; and (4) they documented the situation.
[Photo by WordWridden/Creative Commons license]
There's No Such Thing as Off-The-Record With 400 People
Washington Post blogger David Weigel resigns after his "unvarnished" comments to JournoList (a listserv) are leaked to FishBowl DC.
Politico [annoying pop-up ads and all] reports on the story, and includes a comment from Nation columnist and journalism professor Eric Alterman:
For what it's worth - and I'm not a journalist, so it's not worth much - there's no such thing as "off-the-record," unless (1) you have a relationship with the person you are talking to, and (2) you make clear affirmatively that something is off the record.
Added: worth reading from the (always worth reading) Kevin Drum: "Dave Weigel and the Culture of Exposure."
Politico [annoying pop-up ads and all] reports on the story, and includes a comment from Nation columnist and journalism professor Eric Alterman:
That statement deserves a permanent place in the dictionary under the definition of "obvious" (particularly since it comes from a journalist). Nevertheless, a good reminder.I think it’s unwise to put anything on that list that you can’t defend in public. There’s no such thing as off-the-record with 400 people.
For what it's worth - and I'm not a journalist, so it's not worth much - there's no such thing as "off-the-record," unless (1) you have a relationship with the person you are talking to, and (2) you make clear affirmatively that something is off the record.
Added: worth reading from the (always worth reading) Kevin Drum: "Dave Weigel and the Culture of Exposure."
