Electronic Communications, Privacy, Data Protection, and More

@TWITTERHULK SMASH INFRINGEMENT CLAIMS?

Venkat — Mon, 23 Aug 2010 18:46:00 GMT

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 different styles employed by the HULKS:

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.

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.

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:

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.

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!).

On to the more important question: who is going to start a @LAWYERHULK (@LEXHULK, @HULKESQ) account?

Twitter and the Cult of Positivity

Venkat — Mon, 23 Aug 2010 04:03:00 GMT

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:

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?

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.

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

Venkat — Sat, 21 Aug 2010 21:55:00 GMT

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:

Dr.Laura:don't retreat...reload! (Steps aside bc her 1st Amend.rights ceased 2exist thx 2activists trying 2silence"isn't American,not fair")less than a minute ago via Twitter for BlackBerry®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

Venkat — Fri, 20 Aug 2010 17:51:00 GMT

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.

Waiting for the Parade of Twitter Lawsuits?

Venkat — Mon, 16 Aug 2010 17:52:00 GMT

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!

First Voice Mail and Now the Phone Call?

Venkat — Fri, 13 Aug 2010 17:48:00 GMT

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]:

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.

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.

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?

Venkat — Wed, 11 Aug 2010 15:16:00 GMT

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.

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.'"

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.

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?

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?

Food for thought.

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

www.colbertnation.com

Colbert Report Full Episodes

2010 Election

Fox News

More:

JetBlue blog dies after the company mentions Sliding Steven Slater. http://bit.ly/aQEAyz Story: http://bit.ly/cUST9Hless than a minute ago via TweetDeckRobert McMillan
bobmcmillan

Was a Copy of the Prop 8 Decision Leaked?

Venkat — Thu, 05 Aug 2010 01:50:00 GMT

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:

Purported #Prop8 decision on Scribd http://scr.bi/beFRhv not dated or stampedless than a minute ago via BrizzlyRobert 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 #prop8less than a minute ago via webilona
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

Venkat — Fri, 02 Jul 2010 15:35:00 GMT

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]

There's No Such Thing as Off-The-Record With 400 People

Venkat — Fri, 25 Jun 2010 17:48:00 GMT

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:

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.

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.

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."

When Cease and Desist Letters Go South

Venkat — Mon, 21 Jun 2010 19:27:00 GMT

Lawyers send a cease and desist letter - a 12 page letter, no less - to a site that's selling "Canned Unicorn Meat."

Here is ThinkGeek's post, which highlights the letter, in all of its porky glory! The transgression? The fake "product" (released on April 1) infringes on the "The Other White Meat" marks held by the National Pork Board.

Oops. The letter was very well researched, according to ThinkGeek, "except on one point."

If I were the National Pork Board, I'd just embrace the situation and offer up an apology. Maybe send over some free pork chops, or whatever it is that the National Pork Board provides.

The law firm should consider doing the same. At the very least, I'd spin this as a pro bono project, and offer a 100% discount on the fees charged to the National Pork Board.

"We Probably Shouldn't Put This in Email," and Other Words You Should Never Use in an Email

Venkat — Mon, 14 Jun 2010 19:17:00 GMT

We can never be reminded often enough of the "things you should not say over email." This is one topic that deserves the endless flogging from the media and bloggers (and from lawyers) that it seems to receive.

NPR has a nice little list ("23 Things Not to Write in an E-mail") of 23 words and phrases that are red flags for problematic emails - here are a few of the choice ones:

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

I'd add "we probably should not put this in an email," which is something I've actually seen in an email.

The list came from a report prepared by the Lehman Brothers bankruptcy examiner who used these and other terms to search for problematic emails. Bloomberg news covers the report here, in an article that's well worth reading.

Another recent reminder of the perils of putting stuff in emails came from the Viacom v. YouTube case. Farhad Manjoo of Slate looks at some of the juicy emails here. There are also the Wikileaks-related chats between a (now-former) army intelligence analyst and a former hacker where the analyst throws in "I can't believe what I'm confessing to you" in his chats with the former hacker. Threat Level published excerpts of those chats which make for interesting reading.

I'm surprised email programs don't contain standard filters which screen for red flags. Judging from our propensity to put stuff in email that makes us look bad, something like this would be useful and worth the hassle.

[When I make this point, I always wonder if it comes across like I'm telling people it's fine if they engage in shenanigans, but they should just take care to not document it. The point is that emails can be misconstrued or presented without context, and it's worth trying to minimize this by watching what you say on email. Of course, some would say that if you are going to do something that you're worried about discussing on email, you should probably think twice about doing it in the first place, but that's neither here nor there.]

Added: Gabriel Gunderson makes a good point in comments about BP. The BP emails will soon be "gushing forth," if they haven't already.

Blogging as a Timesink

Venkat — Tue, 08 Jun 2010 14:59:00 GMT

Bob Ambrogi estimates how long on average it takes to write a blog post. His conclusion? Approximately 45 minutes. He makes a good point that is not often discussed by law bloggers, and one that's worth thinking about for anyone looking to join the blogging revolution.

He also provides a helpful summary of the steps that everyone goes through before hitting the publish button:

* 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.

I'll add a few to the list:

* 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.)

I don't begrudge those who blog for profit, but never once have I stopped to sit down and think about how much time I've spent blogging. Easily a couple of vacations worth. And I take my vacations seriously, so if there's anything that would get me to think twice about blogging it would be sitting down and actually calculating the amount of time spent in terms of vacation days. You'll also notice I didn't include "collect seven figure Google Adwords check" in the list, but that's neither here nor there.

Blogging brings many many benefits, but most law bloggers that I've struck up a connection with blog because they see it as a fulfilling activity in itself. (At the very least, they start out this way.) I certainly fall in this category. Chances are, if I'm a regular reader of your blog, you do too.

[For the record, I think this post took about 15 minutes, not counting the interruption it caused in my schedule, which is another thing I'd add to my list.] [I added a few edits which took me another five minutes!]

Blawg Review #267 on Spam Notes

Venkat — Sun, 06 Jun 2010 16:46:00 GMT

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]:

Best social media policy: 'Don't be stupid' ~ love it!!!less than a minute ago via Twitter for iPhone Amy D. Howell
HowellMarketing

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:

The WSJ has a piece on how the Internet makes us smarter, which I will read once I'm done feeding my virtual sheep.less than a minute ago via web Andy Borowitz
BorowitzReport

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.

Can You Subpoena Someone's Facebook Page in a Civil Case? [Revisited]

Venkat — Fri, 04 Jun 2010 03:28:00 GMT

A while back I speculated as to whether you could subpoena someone's Facebook profile information in a civil lawsuit. I blogged about a case involving a civil subpoena seeking AOL user information, and speculated as to whether a similar analysis would play out with respect to Facebook profiles and information.

A federal court in California took a look at this issue, and concluded that Facebook messages and information that is not publicly accessible fall under the Stored Communications Act, and cannot be produced by Facebook pursuant to a civil subpoena. (Here's my post at Professor Goldman's Technology & Marketing Law blog summarizing the decision. The case is Crispin v. Audigier [scribd].)

The case involved copyright claims brought by a plaintiff who licensed his artwork to a garment maker. The plaintiff claimed that the defendant-licensee used the copyrighted material outside the scope of the license and breached the license agreement. The defendant-licensee issued a subpoena to Facebook seeking the plaintiff's Facebook wall posts, profile information, and communications with a third party. The plaintiff moved to quash the subpoena, arguing that the Facebook messages, wall postings, and certain profile information fell under the Stored Communications Act and therefore could not be produced by Facebook pursuant to a civil subpoena.

The court largely agreed, although it remanded to the magistrate judge for the magistrate judge to address the factual issue of whether certain of the sought after information was publicly available. To the extent the privacy settings on the profile page allowed the general public to access the information it could be produced by Facebook, but non-public information would be treated differently.

The decision is worth reading, and illustrates the statutory complexities and the difficulties in subpoenaing someone's Facebook page in a civil case. Judging from media reports of the use of social media evidence in civil lawsuits, you would think it is easy to subpoena this information from Facebook, right? As this case makes clear, that's not necessarily true. Of course, getting the witness to sign a waiver is one way to go about it, or getting the witness to actually access and produce the documents is another option, but these approaches are a bit more cumbersome than obtaining unfettered access through a subpoena to Facebook.

For a good summary of this approach, check out this post ("Obtaining Records From Facebook, LinkedIn, Google, and Other Social Networking Websites and Internet Service Providers"), and the pdf linked in the post.

Does @BPGlobalPR Infringe on BP's Marks?

Venkat — Mon, 31 May 2010 17:04:00 GMT

There's been a boatload of coverage of the obviously fake BP twitter account (BPGlobalPR), but Jay Parkhill asks a question that I'm surprised hasn't received much attention:

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

With the caveat that I don't necessarily fit the bill as far as people Jay was looking for a response from, I wanted to offer a few thoughts.

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.
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.)
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.
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.")
Claims Against Twitter: Claims against Twitter by BP would be ill-advised. (See "Tony La Russa's Legal Claims Against Twitter Look Tenuous.")
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.)

US v. Foreign Law? A final issue that I didn't even consider, is whether BP could try to use UK/EU trademark rules? Since BP has its own Twitter account and agreed to Twitter's term of service, there's probably an argument to be made that the choice of law clause in Twitter's terms of service govern, but if BP brought a claim against @BPGlobalPR, does that really fit within the scope of a dispute that's governed by Twitter's terms of service?

Will @BPGlobalPR be Outed or Out Him or Herself? Of course, there's also the issue that before suing @BPGlobalPR, BP would first have to find out who is behind the account. That could turn into its own separate dispute that could have an effect on how BP proceeds. Another interesting issue is when and whether @BPGlobalPR will be outed or will out him/herself. There were rumblings of this last week ("Fake BP Account Remains Shrouded in Mystery"). I predict that the person will voluntarily disclose his or her identity or be outed by June 15, 2010. (As a side note, if you run this account, there's no way you could not have told your closest confidants. So far, they're doing a good job of not blowing your cover.)

[image used from the BPGlobalPR account - I'm pretty sure it's fair use...I did put a brown sludge-colored border around it!]

Related: "Steps Brand Owners Can Take to Deal With Brandjacking on Social Networks"

Added: thanks to Legal Blog Watch for the link! I should add (to the extent it's not clear from my post) that @BPGlobalPR's position is strong, and BP's claims are weak. Regardless of how colorable BP's claims may be, it would be beyond foolish for BP to try to go after @BPGlobalPR. Not only would it be a terrible PR move, attorneys and public interest organizations would line up out the door to defend @BPGlobalPR (it would be an expensive, hard fought dispute for BP). It would also highlight another question that I'm sure BP does not want to shine the spotlight on: "doesn't BP have better things to do with its time right now?" Finally, BP's brand seems somewhat . . . "tarnished" right now; people have already started putting together contests to crowdsource a replacement brand for BP.

Disclosure Debacles - Letting the Cat Out of the Bag Edition

Venkat — Fri, 28 May 2010 18:48:00 GMT

For some reason I don't relish highlighting the mistakes of litigants (or their lawyers) when I blog. It's not really out of professional courtesy or anything - it's more of a Karmic thing.

But I recently saw two examples that I couldn't let pass by without flagging:

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.]

D'oh!

[image courtesy of lmmortel / Flickr Creative Commons license]

[Facebook] Beacon Class Action Lawyers Awarded $2.3MM in Fees

Venkat — Wed, 26 May 2010 21:52:00 GMT

Lane v. Facebook, Case No. 08-3845 RS (N.D. Cal.) (Order re Attorney Fees)

The lawsuit over Facebook's ill-fated Beacon program generated three lawsuits, a lot of wrangling by class action lawyers, and more than a few blog posts (e.g., "Beacon Class Action Settlement Approved;" "Stop Saying 'We Can Amend This Agreement Whenever We Want'!;" "Texas Class Action Aims to Derail Facebook Beacon Settlement"). Judge Seeborg recently approved the settlement, which included the formation of a privacy foundation funded by Facebook. (Here's an earlier post of mine summarizing the then-proposed terms of the settlement.)The one item pending was the amount of fees which class counsel would be entitled to.

Judge Seeborg issued an order on Monday awarding plaintiffs' counsel $2,322,763.00 in fees and $42,210.58 in costs, for a total award of $2,364,973.58. Counsel expended approximately 2500 hours of work on the case, and sought a multiplier of 2.4. The court ruled that a multiplier of 2 was appropriate. The court also found that the hours attributable to the Harris plaintiffs should be "excised," given that "those attorneys attempted to derail the settlement of [Lane v. Facebook] at the preliminary approval stage, before later coming to support it."

[For an explanation of the lawsuit brought by a second group of plaintiffs (Harris v. Facebook) who initially objected to the settlement, check out this post: "Texas Class Action Aims to Derail Facebook Beacon Settlement."]

Although several of the named plaintiffs recovered nominal amounts for their efforts, the class members recovered zero dollars as part of this settlement. The settlement was heralded because it brought significant non-monetary benefits: (1) the establishment of a privacy foundation and (2) a change in Facebook's behavior. Given recent events, I'm sure many are probably left questioning the efficacy of one or both of these.

[cross posted at Prof. Goldman's]

Justices Scalia and Breyer Weigh in on Twitter

Venkat — Fri, 21 May 2010 17:04:00 GMT

Justices Scalia and Breyer respond to the question of whether they've considered tweeting (or "twitting"):

Justice Scalia: "I don't know even what it is . . . I've heard it talked about"

Justice Breyer: "remember when they had that disturbance in Iran . . . there were some Twitters as I call them . . . but there were people there with photos as it went on . . . I sat there for two hours, absolutely hypnotized . . . it's instant and people react instantly . . . it's not something that's going to go away"

Added: Maybe Twitter will help usher cameras into the courtroom? On the other hand, Justice Scalia finds himself in good company, as far as people who aren't Twitter enthusiasts go. One of my favorite bloggers - Marc Randazza - still hasn't jumped on the bandwagon (although his blog does have a Twitter feed)!

[via Andrew Cohen (@cbsandrewcohen)]

Has Social Media Really Changed the Legal Landscape?

Venkat — Fri, 07 May 2010 14:40:00 GMT

Gary Gansle has a guest post at Read Write Web [link] where he makes a point that I've been meaning to make for a long time:

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.

If you don't now who or what "Scoble" is, don't worry, you're not missing much.

Added: there is one big change, and that's discussed in this post here: "A new imperative for corporate lawyers: Don't make the children cry."

[Disclaimer: nothing in this post, or this blog for that matter, should be taken as legal advice. If you are on the verge of implementing a Twitter policy, you should probably go ahead and do it.]

[Image courtesy of christooss on Flickr (creative commons license).]

That'll Be $60 Per Email (or $7.50 per word) Please

Venkat — Fri, 30 Apr 2010 23:24:00 GMT

There are some topics that I tend to stay away from, and improving the legal profession is one of them. I'm not really sure why. It's not that I don't believe that the legal profession needs improving. It surely does. For whatever reason, I'm content to suck up knowledge from elsewhere, maintain an open mind, try to implement improvements in my own way, and leave it at that. Maybe my thinking is that as far as blogging goes, I'll leave this topic to the people who obviously do a much better job of blogging about it.

However, I saw something recently that I couldn't let go by, and that's highlighted in this blog post (titled "How do Lawyers Even Get Away With This Stuff") at the "You're the Boss" blog (New York Times). The basic story is that a small business owner is moving and she enlists the help of a real estate firm to review her lease. She's told that it would cost roughly $2,500 dollars. She signs up, happily leaves everything to her lawyers, who appear to have treated the small business real estate lease documents as if they were the financing documents for the Trump Towers. They [over]lawyer it up and send her a few invoices which end up being well over the initial estimated $2,500.

This doesn't sit well with Ms. Walzer who calls and asks to speak about this bill. In the process of reviewing her bill, here's one thing that catches her eye:

0.2 hours at $300 an hour ($60) for one lawyer’s reply to an e-mail I’d written letting him know that I was not going to be available and would review his comments when I was back in my office.

She raises the issue that she never requested a response and shouldn't be billed $60 for her lawyer letting her know that she should "take her time." Her lawyer strikes back, and says that the email pulled him away from the multimillion dollar transaction he'd been working on, and it was thus justified for them to bill the 0.2 hours at $300 per hour. (??)

This is a failure on many levels. Among other things, I'm not sure why it took the lawyer 0.2 hours to respond to the email, or why he even responded at all. But the bottom line is that clients don't like being billed for non-substantive email responses, or email responses in general. It's an embarrassment to the profession that someone even tried to justify this.

Ms. Walzer's post also reminded me of a post I read a ways back by Seattle investor Andy Sack. One month he received an invoice for a total of $35 for a phone call (and blogged about it).

Loosely related: post from William Carleton (post and comments are worth reading): "Picking a Law Firm: How Size Does and Doesn't Matter."

22 Tweets - Kudos to @lancegodard

Venkat — Tue, 27 Apr 2010 16:07:00 GMT

About a year ago I chatted with Lance Godard about lawyering, social media, and a variety of other topics. You can see those questions and answers here.

Lance recently did a follow up chat with me on twitter, which you can see here.

Lance had good questions, many of which were swirling around in my head anyway. It was a good exercise. Thanks Lance! (Kudos to Lance for coming up with the idea and actually implementing it. I think it's a testament to his chops as a marketing professional.)

If you want to get a wide-ranging sense of the views of a bunch of lawyers who use Twitter, check out his 22 Tweets page.

Also: with apologies to Brian Tannebaum (@btannebaum), I haven't had a chance to properly thank all those who retweeted the interview. Thanks - @GinaRubel, @AdvertisingLaw, @thetrialwarrior, @lancegodard, @DanHarris, @NancyMyrland, @richards1000, @BeelJDPhD, @lindsaygriffith, @JeenaBelil (and anyone I may have missed).

FTC Closes First Blogger Endorsement Investigation

Venkat — Sun, 25 Apr 2010 04:47:00 GMT

I haven't taken a close look at the FTC's blogger endorsement rules - which I gather cover when bloggers must disclose conflicts of interest and freebies, and what steps companies must take in order to prevent bloggers from blogging about freebies and companies with which the blogger has a material relationship without disclosure. Truth be told, I've never sat down and read the FTC's recently promulgated guidelines: [pdf] "Guides Concerning the Use of Endorsements and Testimonials in Advertising".

My thinking has always been that at least when it comes to blogs, the "problem" is overblown. There's just not that many undisclosed free items discussed by bloggers that improperly sway the thinking of consumers and readers. Most bloggers are driven by common sense and some sort of sense of responsibility to their readers; they do the right thing for the most part. Blog readers are fairly savvy (maybe more than TV viewers?) and they can figure out what's what. I've also thought that bloggers paid a disproportionate amount of attention to the rules and their promulgation. I'm not talking about law bloggers, who discussed this issue for obvious reasons, but more about bloggers who were telling other bloggers that the sky will fall on the blogosphere when these new rules went into effect. The prospect of the FTC cracking down on a blogger for an isolated incident of blogging without adequate disclosure seemed pretty far-fetched. (My thinking is somewhat colored by the blogs that I read, so take this with a grain of salt. This may be a rampant problem in a corner of the blogosphere that I don't frequent.)

Anyway, the FTC recently closed an investigation of Ann Taylor around whether these rules were violated. A few people have blogged about the FTC's closure of its investigation:

Ad Law By Request: "FTC Issues Closing Letter in Gift to Blogger Case"
Prof. Goldman: "FTC Drops Investigation of Advertiser Who Gave Gifts to Bloggers"
Chris Vail: "Thoughts on the FTC's Blogger Endorsement Investigation"

All three of these posts are worth reading. I don't have anything of consequence to add on this topic at the moment, but I thought it was worth point out these posts.

OMG - Twitter Releases a New Feature With No Media Coverage!

Venkat — Sat, 24 Apr 2010 17:17:00 GMT

I was very surprised to see that Twitter released a new feature the other day and there's been no significant media coverage of it!! (Not that this is a bad thing, mind you.)

Anyway, Twitter is working with other organizations and people to end malaria. A cool initiative all around. The other day I notice a tweet from a friend which had a little mosquito symbol:

It's also on Twitter's home page:

You can click on the symbol/icon and go to the end malaria website. I don't think I've seen this before - a hyperlinked single character?

Maybe I'm missing something, but this seems new, and exciting! What's next, a sarcasm font??

Recent Spam Litigation Activity in California Courts

Venkat — Mon, 19 Apr 2010 14:09:00 GMT

In August 2009, the Ninth Circuit issued its decision in Gordon v. Virtumundo, where it found that James Gordon did not have standing to sue under CAN-SPAM because he didn't suffer damage in the way a typical ISP would. Many, including myself, thought this would mean the end of spam litigation, at least the lawsuits brought by people who either are not really ISPs or who are nominally ISPs. Following this decision, courts in Washington have rejected a slew of cases, including many filed by Gordon himself.

However, there's been recent activity in California worth keeping an eye on. I blogged about this at Professor Goldman's Technology and Marketing Law blog:

First, a plaintiff took a spam case to trial and was awarded damages: "Plaintiff Wins $7000 Following Bench Trial on Claims Under California Anti-Spam Statute -- Balsam v. Trancos"

Second, a judge hearing a lawsuit against Reunion.com who earlier found the plaintiffs' claims preempted by CAN-SPAM reversed herself: "Reunion.com Revisited Again -- Claims Under CA Spam Law Not Preempted by CAN-SPAM -- Hoang v. Reunion.com"

Third, a court found that claims under the California spam statute brought by a small ISP (Asis Internet -- which has brought many different spam suits) against Subscriberbase Inc. were also not preempted: "N.D. Cal. Rejects Preemption and Standing Defenses Against Claims Under CA Spam Statute -- Asis Internet Servs. v. Subscriberbase Inc."

For now at least, spam plaintiffs are not receiving as chilly of a reception in California courts as one would expect. We'll see what the future holds in store for them.