• big mistake
• serious trouble
• too late
• uncomfortable
• not comfortable
• I don’t think we should
• don’t share this
• between you and me
• just between us

* Review your usual news sources, blogs, RSS feeds, court opinions or whatever.
* Read some or all of the items that strike your fancy.
* Choose an item or theme to write about.
* Mentally compose your thoughts.
* Put those thoughts in writing.
* Give it a second read to see if it makes any sense.
* Hit that “publish” button.

* Check PACER to see if there's been any activity in cases you've blogged about. 
* Take a quick look at the pleadings or briefs if you are writing about a case.
* Upload the pleadings or case documents to scribd or a similar service.
* Research/confirm any peripheral legal or factual points that may be relevant to your post.
* Double check grammar/word usage rules to make sure you're not making an obvious mistake.
(I'm no grammar whiz, so I have to do things like google "timesink" to make sure it's actually a word.)

Welcome to Blawg Review # 267 on Spam Notes!

I was considering doing a Gandhi-themed (or "Gandhiji-themed," to use a term of respect) blawg review.  As Gandhian as I am in my outlook (in many respects) it just seemed cliché.  Instead, I decided to pick a topic that rarely receives any attention in the blawgosphere. 

Blogging:

A certain heavyweight blogger led things off with a discussion titled "Through the Eyes of Scott Greenfield."  The author provides us with an excellent example of "navel-gazing," which is a must have tool in the toolbox of every blogger.

Meanwhile, Norm Pattis [whose writing I love, incidentally] responds to one of Scott's earlier posts in a post titled:  "I'll Regret This Internecine Squabble, But . . . "   Also a member of the CDL Clique, Brian Tannebaum provides some sage advice to lawyers that may have trouble seeing where the ethical lines lie as far as lawyers and blawgging goes:  "Lawyer Blogging Tip:  When the Judge is a 'Total Asshole.'"

I sometimes wonder where blawgers (especially "prolific" ones, like Scott Greenfield) come up with time and energy to think of topics for their posts.  Adrian Dayton must be thinking the same thing, as he posts about inspiration for blawgging topics:  "Do you Think up Blog Posts in the Shower? "  [Scott: please don't answer that.]

Blogging, leads naturally to another activity, which happens to also be the topic of this blawg review.  [Some say blawgging is the gateway drug.]  Mirriam Sediqq responds to a Mashable article on the use of social media by lawyers and wonders what it all means:  "Things I Don't Understand."  [Sounds to me, Mirriam like you need to find yourself a good social media consultant!]  Jamison Koehler, who also happens to be a criminal defense lawyer, posts about blawgging and perceived censors:  "Writing for Scott Greenfield and Other Censors."  [Are we sure this edition of blawg review shouldn't just be called the 'Scott Greenfield' edition?]

Moving closer to home, my buddy Dan Harris recently blogged about his blawg's switch to a new home:  "Meet the New China Law Blog - Same as the Old."  [Congrats on the move, Dan!]   Speaking of which, he moved over to Kevin O'Keefe's LexBlog platform.  Kevin - also a powerhouse law blogger - blogged recently about lawyers and social media: "The Indy 500 and Social Media for Lawyers."

Some lawyers blog about their cases or clients, and others don’t.  Most blog about their notable victories.  Mark Bennett notes one such lawyer who does not.

Facebook:

Last edition's host of Blawg Review, Peter Black, blogged about a topic that's near and dear to all of our hearts, and that seems to warrant frequent attention:  "Facebook's Privacy Update."  Facebook's numerous privacy policy changes and gaffes have prompted more than a few notables to quit Facebook.  Ken at Popehat provides his reasons here:  "Why I'm Quitting Facebook."

Professor Goldman blogged recently about a copyright case involving Facebook that just doesn’t seem to go away: "Contributory Copyright Infringement Claim May Need Direct Infringer as a Defendant to Succeed." 

Molly DiBianca blogged about a waitress who was fired for making intemperate comments on Facebook:  "Waitress Is Fired for Her Complaint on Facebook: Lesson Learned for Employers?"

Facebook's CEO has been in the hot-seat recently, and Fred Abramson posted about Facebook's privacy double standard, with a bonus of some video of its CEO sweating it out in the hot-seat:  "Watch For Yourself: CEO of Facebook Mark Zuckerberg Speaks About Privacy."  The Zuckerberg interview prompted a blog to look into the strange insignia inside CEO-Zuckerberg's hoodie:  "Zuckerberg's Bizarre Facebook Insignia Revealed, and What it Means."  [Personally I think it's cool that he wears a hoodie on stage, regardless of what insignia it has inside it!  The sandals I could do without though, not that I’m in a position to provide fashion advice to anyone.]

Finally, Declan McCullagh posts at CNET about Facebook's recent implementation of the "like" button, and how it drew the ire of privacy advocates:  "Facebook 'Like' Button Draws Privacy Scrutiny."

Spam/Email:

Before there was social media, there was spam, and before spam, email.  So it's fitting that this edition of blawg review should note some posts about spam and email.

Professor Michael Geist posts about proposed anti-spam legislation in Canada:  "The Anti-Spam Bill: New Name, Roughly Same Bill."  [I'm hoping you all take into account the experience of your Southerly neighbors...]

Meanwhile, in the US, there has been some activity around email "bombardement campaigns."  Kevin Thompson ("FTC v. Trudeau – Are Emails Within a Judge’s 'Presence'?") and Eric Robinson ("Seventh Circuit Vacates Contempt for E-Mail Barrage") both blogged about the Seventh Circuit's reversal of a district judge’s contempt order in response to a defendant’s encouragement of his fans to send mass amounts of emails to the judge. 

Not to be outdone, AT&T recently tried to threaten a customer - who emailed its CEO - with a cease and desist letter.  It quickly backtracked, as noted by Mike Masnick here.  That’s not all in the ‘email harassment’ category.  Masnick also notes that someone was charged with harassment for sending an email complaint to Senator Bunning.   [If the Free Speech Clause doesn’t help this guy out, maybe the Petition Clause will!]

Twitter:

In the realm of social media, if there’s one topic that seems to receive a fair amount of attention, at least from the subset of lawyers that are taking their social media medicine, that would be Twitter.  Our favorite little pajarito is the topic of many blog posts, and of course, tweets. 

Chris Vail posts about an enlightened approach to brand management in social media that global energy company "BP" may want to consider taking vis a vis the proprietor of the hilarious (and wildly popular) "BPGlobalPR" Twitter account.  [On a related note, netizens have recognized the tarnishment that BP’s brand has suffered and have risen to the occasion by putting together a 'crowdsourced' contest to find a replacement brand for BP. ]

Professor Volokh notes that the Pennsylvania Attorney General, who caused an uproar by issuing subpoenas seeking the identity of Twitter users, wisely withdrew these subpoenas in response to public criticism. 

Lest you think all us Twitter users live in some sort of First Amendment nirvana where anything goes, the Guardian notes that the Twitter user [that’s ‘Tweep’ in our parlance] who was convicted of sending a Tweet about intending to blow up an airport has appealed his conviction.  On a loosely related note, James Fallows asked a pretty interesting question in the Atlantic about whether Twitter (and the internet) is more of a tool for dissidenters or dictators.

MySpace:

MySpace may no longer be the premier social networking website, but it still seems to generate a slew of activity in the courts.

Evan Brown warns about the dangers of creating a fake MySpace page here ("That bogus social networking website can send you to jail").  Howard Bashman posts about the Third Circuit’s consideration of a MySpace/school discipline case here.

Craigslist:

Kashmir Hill (of Above the Law) posts at her True/Slant blog about her own personal experience in being the victim of a crowdsourced Craigslist revenge scheme.   Legal Blog Watch picks up on Kash’s post here.

YouTube/Google:

Above The Law (Elie) posts about the much maligned 'Star Wars kid' who after therapy and litigation, finally righted his ship, and . . . is en route to becoming a lawyer (??): "Law Student of the Day: Star Wars Kid."  [Someone should tell him that lawyers are an angst-ridden bunch.]

Ron Coleman wonders whether YouTube is a "Copyright Infringement Mecca."

THR, Esq., updates us on goings on in the Viacom/YouTube case that’s spawned a lot of commentary: "Ebay, Facebook, Yahoo Back YouTube in Viacom Case."

Meanwhile, Ars Technica, updates us on the status of the Wi-Fi data purloined by Google: "Google relents, to give WiFi data to Germany, France, Spain."  The Google Wi-Fi story has an additional twist, noted by Wired here: "Lawyers Claim Google Wi-Fi Sniffing 'Is Not An Accident.'"

LinkedIn:

Nixon Peabody provides an update on a lawsuit that raises "novel, far-reaching questions" for employers:  "Restrictive-covenant federal lawsuit over social media conduct raises novel, far-reaching questions for employers."

This raises the question of whether a social media policy could help a company in a situation like that.  I actually came across an excellent social media policy while surfing Twitter [naturally]:

That last Tweet was courtesy of Eric Meyer.

Yahoo!:

It looks like Yahoo! is still trying to stay relevant in the social networking space.  EFF helpfully provided instructions on how to opt-out of Yahoo!’s latest efforts to use your Yahoo! mail contacts: "Opt-Out Required to Prevent Your Yahoo! Mail Contacts From Being Used for Social Network."

The Answering Machine:

Although lawyers in the pre-social media days didn’t have to deal with social media spammers and scammers, they had to deal with other irritants. Niki Black posts about one such irritant (but with a nice twist at the end): "Answering Machine Hell."  

Bullying, Harassment, and Stalking:

The internet and social media has brought about a new species of harassment that has vexed individuals and lawyers (and lawmakers) alike.

Victoria Pynchon posts at Forbes about New York’s Anti-Bullying Law and why it’s a bad idea:  "New York Anti-Bullying Law A Big Bad Idea." [Congrats Victoria!]

Marco Randazza, a blogger who often stands up to (and on occasion defends) alleged online bullies, gets some well deserved ink in the New York Times "Dear Leader Randazza Quoted in NYT Article on SLAPP Suits."  [Congrats!]  

Antonin P. (aka, The Trial Warrior) provides a "Selected Internet Law Bibiography," in response to a Norm Pattis post which “provides a Lockeian and Hobbesian perspective on cyber-stalking, cyber-bulllying and cyber-harassment . . . ."

Professor Danielle Citron posts at Concurring Opinions about DirtyPhoneBook.com: "The Potential Price of Sharing Your Phone Number."

Walter Olson blogs at Overlawyered about law enforcement efforts to squelch video and photography "[i]n response to a flood of Facebook and YouTube videos that depict police abuse."  The Gizmodo post referenced by Walter also links to Carlos Miller’s "Photography is Not a Crime," an excellent blog that’s been chronicling abuse of photographers for some time now: "Gizmodo Mentions PINAC in an Article."

Finally, if you’re a lawyer and you send out a cease and desist letter in response to some perceived online harassment or infringement, it’s well worth considering how the letter will be received on the internet.  In fact, Richard Russeth thinks (and I don’t disagree, judging from what goes on out there), that "[t]here should be a course on writing cease and desist letters that don’t look silly when they go viral on the Net."

The iPad (!!!!):

No post on blawggers and social media would be complete without an obligatory reference to that old game-changer . . . the iPad!  [I think game-changers are new by definition, but . . . ]

Charon QC has been hard at work designing his own version of the iPad – the 5.0 (!): "Postcard From the Staterooms-on-Thames - iPad Edition."  [Hopefully Gizmodo doesn’t kidnap Charon in an effort to leak photos of the iPad 5.0’s innards.]

Also across the pond, Jason Plant asks again whether or not the iPad will accelerate efforts of lawyers to go paperless "Stop Printing Your Emails – the iPad’s a Game Changer!"

The Internet & Stupidity:

While we’re all spending increasing amounts of time online, it’s worth asking whether this has any peripheral effects.  NPR profiles a new book which asks whether the internet is making us stupid.  Over at Madisonian.net, this spurred a discussion of whether Cyberlaw is making us stupid:  "Is Cyberlaw Making us Stupid."

It’s an important topic, but my reaction to this was similar to Andy Borowitz’s:

Sick of the Social Media BS?:

I myself am a convert, and see many benefits to social media, but if you are not one of those in my camp, what are your options?

First, you could consider deleting all of your social media accounts.  Michael Zimmer provides a good look at how easy it is to delete various social media accounts:  "Comparing Ease of Deleting Accounts."

Another alternative is to call BS on the social media gurus.  Seattle-based author Scott Berkun, provides a roadmap for this:  "Calling BS on Social Media Gurus (Slides)."   You could also buy Amy Derby’s book which has been forthcoming for some time now.  [WindyPundit posted about a Chicago Tweetup with the "Chicago Twitter sensation" and others that looked pretty fun.]

When all else fails, you could log-out for a bit, and do what Colin Samuels did recently.
__

Thanks for reading.

The next edition of Blawg Review will be hosted by David Harlow's HealthBlawg.

is @BPGlobalPR user name/trade name hijacking, protectible fair use, or both?

1. Dilution/Tarnishment:  Of the available causes of action, I would think BP would look to dilution/tarnishment, rather than garden variety infringement.  I say this because BPGlobalPR isn't selling any goods or services that are competitive with BP.  The Trademark Dilution Revision Act of 2006 (covered by Prof. Goldman here) and the recent Victoria Secret case are two pieces of law worth checking out. 
   
   
2. Shirt Sales:  One area of dispute will be whether BPGlobalPR's use of BP's marks constitutes "use in commerce."  BPGlobalPR is selling shirts.  Brand owners going after commentary/parody uses often focus on this, although this type of commerce isn't a killer for the fair use defendant.  (See Citizen Media's Wal-Mart v. Smith page.) (I'm muddling various issues which deserve a much more nuanced look in points one and two, but you get the idea.)
   
   
3. Laches:  A laches argument in the trademark context is tough to make, but I wonder if a court will compress the time necessary to raise a colorable argument in this type of a factual context?  I don't think it's even close here, but given the rapid growth in BPGlobalPR's follower count, and the public attention that the account has received (including multiple reactions from BP spokespersons), if I were BP, I'd keep this in the back of my mind.
   
   
4. Cybersquatting:  Use of a mark in a Twitter account handle doesn't get you much as far as UDRP or the ACPA.  (See "No UDRP Relief for Post-Domain Use of Trademark.")
   
   
5. Claims Against Twitter:  Claims against Twitter by BP would be ill-advised.  (See "Tony La Russa's Legal Claims Against Twitter Look Tenuous.") 
   
   
6. Twitter's Designation of the Account as a Parody Account:  The most interesting aspect of the situation, and one I hadn't focused on before, is that Twitter has guidelines for registering and using Twitter accounts for parody, commentary, and fan purposes.  (See "Parody, Commentary, and Fan Accounts Policy.")  Twitter could do something interesting that could have an effect on how these situations play out from a legal standpoint.  It could add a designation to parody/commentary accounts that lets end users know that the account in question is not an "official account," and is one that exists for commentary, parody, or other fair use purposes.  I'm thinking of something similar to what Twitter does this with "Verified Accounts."  What would be the effect of this?  It could remove the factual issue of whether end users reasonably perceived the account as an official BP account, or at least significantly bolster BPGlobalPR's arguments that it was engaged in a use that is likely protected by the First Amendment.  (From what I've seen, this argument is pretty strong to begin with.)
   

1.  The name dropper:  Evan Brown points to a situation where someone objected to a subpoena seeking the person's identity, but included his name in the filing:  "Anonymous accused Bittorrent user moves to quash subpoena using real name."

2.  Posting the top secret agreement online:  Ben Sheffner points to a second example, also from the bittorrent litigation, where lawyers suing bittorrent users publicly posted a copy of a proposed settlement agreement which settling bittorrent users would enter into:  "Adventures in settlement confidentiality."  (Here's the Boll AG Settlement page , which contains a link to the agreement.)  The problem?  The unredacted form settlement agreement contains a clause requiring the parties to keep the terms of the settlement agreement "strictly" confidential. The confidentiality provision also has a liquidated damages clause associated with it:  $15,000 in the event of a breach of confidentiality.  Good luck enforcing that provision, or trying to keep these settlements sealed in the future.  [I forgot to mention that Eriq Gardner at THR, Esq. first noted the online version of the agreement.]

There's been a lot of anxiety provoked (and money made) predicting a "parade of terribles" in the workplace as a result of social networking sites and employee blogs. While there is no doubt that these sites provide additional opportunities for employees to be distracted from getting their work done, I contend that not all that much has changed.

Employees that are wasting their time on social networking sites today were gossiping at the water cooler in yesteryear, and the solution is the same: thoughtful policy implementation and vigilant managerial oversight.

His point is that social networking and social media have affected employer/employee relations.  Employment policies and practices will require some "updates," but that none of these changes warrant a complete overhaul - i.e., there's no need to freak out over the fact that you don't have a social media policy in place at the moment that specifically addresses the use of Twitter. 

Stepping away from the employment context, in general, the development of "social" aspects of the internet have not fundamentally altered the legal rules in place.  In fact, it's worth reminding ourselves that with a few very significant exceptions (Section 230, DMCA, etc.) even the internet has not fundamentally altered the legal rules in place.  OK, as I write this last sentence I'm sure this flies, or at least it's debatable when it comes to the internet and legal rules.  But from my vantage point I haven't really seen that many significant "new issues" presented by social media or social networks that should cause people to rethink their entire approach from a legal standpoint.  Sure, there's the issue of whether you should friend opposing counsel, the judge, or a witness in litigation.  There's also the issue of who owns the data and relationships underlying an employee's personal social networking account when the employee creates content on the job that's related to his or her employment.  There's even the interesting question of who owns the copyright in your tweets.  But often you get the sense from reading law.com articles and law firm advisories that the landscape has now fundamentally changed, and if you don't get on the bandwagon from a legal standpoint, you'll be looking at a flurry of lawsuits that will bankrupt your company.  Whether this is motivated by our desire as lawyers to stay relevant or our desire to mine our professional lives and find stuff that's "interesting" (or our desire to create work that we can bill for) I don't know.

One example of this that hit home for me was around the Facebook vanity URL and Twitter user name "land rush."  You couldn't turn around without bumping into an article that warned of the risks of Facebook squatting (e.g., "Facebook's imminent 'username' registration raises risks of cyber-squatting"; "Protecting Your Trademark From Facebook Username Abuse") and Twitter squatting (e.g., "How To Twittersquat The Top 100 Brands") and what you should do to prevent this.  How has this translated into actual real live legal disputes?  Zilch.  Apart from one well-publicized lawsuit involving Tony La Russa, who brought and quickly withdrew a pretty flimsy lawsuit against Twitter ("Tony La Russa's Legal Claims Against Twitter Look Tenuous"), there hasn't been much in the way of lawsuits involving either Twitter or Facebook around this issue.  (This may be a testament to their private dispute resolution features, which seem fairly effective.)  I'm not suggesting that tweaks aren't required and that you shouldn't pay attention to what's going on in the space.  I'm merely saying that the rules haven't been re-written, and a heaping dose of common sense can often cure a lot of problems.  I should also make clear that discussion in blogs around these issues is very worthwhile.  It's the more cautionary/alarmist stuff that prompted this post.

A separate but somewhat related question from Daniel Schwartz (@danielschwartz):  "Do You Need to Use Social Media to Provide Legal Advice on it to Employers?"  The answer to me, is obviously not.  (That said, it pays to gain some familiarity with what's going on.  You probably want to avoid the scenario described here: "Lawsuit Over Haitian Earthquake Photos is a Disaster.")  There's nothing that makes social media unique.  As lawyers we've forever been addressing client issues in factual scenarios that we don't necessarily have personal experience with.  A litigator may deal with an oil spill dispute - does he or she need to have work experience in the oil industry?  The mark of a good lawyer is to tackle factual scenarios and subject areas that we don't necessarily have personal experience with, or knowledge about, and understand them well enough to argue the facts to the judge and jury (or advise the client).  Good lawyers "grok," and distill facts and issues effectively.  The best response to Dan's question came from Michael Fleming (@FlemingMF):

Seems to me that it's hard to understand SM well enough to advise on it w/o participating. But, don't have to go Scoble.