Electronic Communications, Privacy, Data Protection, and More

The Marble and the Sculptor

2013-12-31T13:36:23Z

A few months^* ago, Keith Lee, who blogs at Associate's Mind, was kind enough to send me a review copy of his book titled "The Marble and the Sculptor". The book is a survival guide of sorts for newly minted lawyers, tackling a wide range of topics such as how to dress, whether networking should play a role in your daily grind, and tips on how to improve your writing. Even though I'm not a just-out-of-law-school lawyer, and I have an ambivalent relationship to self help books, I thought it was an enjoyable and worthwhile read. It was well put together, organized, and mixed anecdotes with practical tips. Will it provide you a silver bullet to use against the law practice beast? Probably not. Will it reaffirm and reinforce concepts that you probably know intuitively and perhaps offer one set of responses to those in doubt about the practical course of action? Yes.

In a sense, the book is somewhat self illustrative of the concepts Keith talks about. It must have taken a chunk of time to germinate the idea, get with a publisher, actually write and now market the book. It was obvious he took a professional approach to these tasks, rather then approaching it as some sort of hobby that could have just languished on the vine.

The content itself is a mix of parables, examples, and just nuts and bolts on particular topics. Again, none of it is a silver bullet (and of course one aspect of his point is that no such silver bullet exists), but it was generally useful stuff. I recommend the book to lawyers young and for that matter old.

[FWIW, a couple of years ago Keith wrote what is to this day one of my favorite posts about Twitter: "The Anticipation of Being Re-Tweeted".]

^* I feel guilty about the timing of this post. I get the sense that when you get a review copy you're supposed to crank through it and publish a post so the publisher can take advantage of it in marketing the book. For whatever reason I did not crank out the review in a timely fashion.

The Problem With the Sharknado Reference

2013-07-19T13:32:42Z

Judge Mills throws in a reference to Sharknado in Faulkner v. Woody Allen. (h/t @ericgoldman) The problem with the reference is this: five years from now, no one will know or recall what Sharknado was. Even today, many people reading the opinion won't know what Sharknado is. So they will have to look it up. On the internet. Forcing people to look up stuff online when reading judicial opinions--whether it's little known cultural references or obscure words--is never a good call. It's distracting, often seen as gratuitous, and many people prefer to not read opinions while they are connected to a device.

On the other hand, the #sharknado reference does show that judges, or at least their law clerks, are far less out of touch with things like social media than people give them credit for being. Kudos to them for this I suppose. Being the "first opinion to reference Sharknado" is a great way to get people talking about your opinion .. on Twitter!

Just Who Are the Change Agents in Law?

2013-01-19T17:40:16Z

Scott Greenfield has an interesting post up today with an equally interesting response from Keith Lee. Both posts nudge me in the direction of a "Godin-esque" question that's been percolating in my mind for a long long time now:

the legal profession is obviously undergoing tremendous pressure to change, and will obviously be transformed over the next 10, 15, 20 years . . . just who will be the "change agents"?

[Their posts don't directly address this or raise this question, but raised it in my mind.] Here are some possibilities:

apps or services who seek to displace or replace lawyers (e.g., LegalZoom; RocketLawyer)
consultants (Richard Susskind, author of two books on lawyering that are widely read by other consultants)
people who provide 'practice management' and other tools for lawyers (e.g., GoClio; RocketMatter)
apps or service providers who seek to give clients more control in choosing or working with lawyers (Q&A sites; Avvo; Quora)
companies that try to democratize and reduce costs but not necessarily exclusively client or lawyer focused (e.g., docracy?)
'alternative model' law firms (Axiom?)
practicing lawyers who "chip away" at established ways of doing things, experiment and come up with alternatives

We can say that it will be a combination of all of the above, but we all know that misses the definition of "change agent" (and the nature of change). It's also worth pointing out one basic assumption that I think everyone agrees on. Some of lawyering will never go away--someone who is charged with a serious crime will never turn to a computer or algorithm to represent them in court. (A traffic ticket, on the other hand, is something that people may feel comfortable handling via an app.) Some of it has already gone away--LegalZoom handles (some would say poorly) a great many transactions that are 'automated'.

I would place the large majority of lawyers I know from online interactions in the final category. Most blog. Most recognize that there are aspects of the legal practice that have been in place for years that could warrant reexamination or change. And most in their own way try to implement change and experiment, even if it's through something relatively small, such as blogging (sharing knowledge freely).

The consultants (bless their hearts) I view as most unable to effect change. They mostly rant and market to their prospective large firm clients about things that most of the lawyers who fit into the "lawyers who practice but try to 'chip away'" are already doing. I view the trade press as fairly non-consequential in the process as well. A quick look at their "legal rebels" feature is enough to confirm that they aren't the most tuned in to change in the profession, or have a tough time really capturing stuff that happens on the ground across the country.

A final note, a twitter exchange with Scott Greenfield also raised an interesting point. What obligation do we as lawyers have to be wards for the future of the profession? I readily admitted to Scott that it's tough for me as a practicing lawyer to worry about much beyond my own immediate sphere of influence--i.e., I will readily meet with any young lawyer who wants to have coffee or lunch, and I generally have a total open door/email policy. But beyond this, it's difficult to worry about big picture change beyond my own experimentation and tinkering.

Anyway, I'm curious about reactions or responses to this question!

I meant to include but did not initially mention a link I recently came across from Josh Blackman: "Robot, Esq." ("In the not-too-distant future, artificial intelligence systems will have the ability to reduce answering a legal question to the simplicity of performing a search. As transformational as this technology may be it raises fundamental questions about how we view our legal system, the representation of clients, and the development of our law.") (see also the comment by Jason Wilson)

[I added a category ... 'alternative model' law firms. Obviously, my list is far from exhaustive.]

Disconnection and Organization

2012-12-23T11:22:09Z

As I sat there drinking my cortado, I went through the checklist of people I had to email. All minor, small things to take (or to have taken) care of. Some internal; some external. All my emails would of course come with the courteous disclaimer that I "didn't expect a response until after the holidays."

I've always thought it was important to respect the schedules of others, including holiday schedules and vacation schedules. That's not to say that I didn't like to work over the holidays. Although I have rigorous vacation standards, for some odd reason, I find myself doing at least some work over traditional holidays. Perhaps it's a combination of not being a serious celebrant with the fact that the approximately six weeks or so of vacation has to be spread out over some time of the year. All of it does not fit within traditional holidays.

Anyway, coming back to my emails, I wondered how people would react or if they would react at all to the fact that I was sending out emails on the Sunday before Christmas Day and through Christmas Eve and Christmas Day. That's when it hit me. Many of these issues I would address in the emails are not "mission critical." They are far from it. As a good friend used to always say, "we're not exactly dealing with the Exxon Valdez here". Sure, I have my fair share of stuff that I end up devoting a lot of waking hours to, but in this instance I was thinking about cleaning up a bunch of smaller issues, where timing was not particularly important. Sure, I have my own practice and utilize entrepreneurial instincts in this endeavor, and some amount of 24/7 thinking about work was to be excused. But to send an email to the person that deals with invoicing that "let's make sure all of the November invoices were out by year end?" . . . did I really need to send this email today. Now?

I took a long look at this and thought about it and I think it boils down to a certain extent to disorganization. I am the type of person who doesn't go crazy on maintaining a to-do list with lots of bells and whistles. Apart from a few minor forays into GTD, I've never gotten anywhere with "to do" systems. Sure, I have a docket for when I have case deadlines, and I have an overall to-do list with big picture items, but beyond that I use the "brute force" method of making sure I get things done. A not-so close cousin to the "Pomodoro" method, it basically entails that you think about what's on your plate for an extra hour or two and you'll eventually make sure you don't miss anything. Sure, I'm the type of person who responds to emails and never (or rarely) "misses stuff" but this comes at a cost. Particularly under the current regime of organization. I wonder what the best way is to change this.

As for blogging while on vacation, let's not get started there. I always debate as to whether it's an indulgence, or more of the same.

Blogger Motivation

2012-11-20T13:58:43Z

I've posted a bunch about what motivates bloggers. My view is that it's a labor of love. You do it because you enjoy it. It may bring you some amount of recognition, but ultimately you enjoy shouting from the rooftops. You may or may not profit from it, but the correlation dollars and cents-wise is certainly not direct. It's so indirect that it's hard for me to even see it. I'm firmly convinced that unless you're among the handful of super high traffic/high audience bloggers in your niche, there are infinitely more profitable things you could spend your time on.

One of the most challenging aspects of being a blogger is finding the time to post. Regularly. I've given up on having any sort of a schedule, but I like posting on the weekends. Unless I post early in the morning (as I'm doing now), it's tough to justify interrupting the workday with a 45 minute blogging session. I also always try to post while I'm on vacation, but this never ever ends up panning out. Is it the lack of access to a printer? Not being at my desk? The wrong kind of coffee? The pull of wanting to explore the non-familiar environment? Who knows.

Anyway, on the topic of "finding the right time and/or circumstances" to blog, check out John McAfee, anti-virus software king, Belize resident, and man on the lam: "Who is McAfee?" Not only is he blogging while on the lam, he says with confidence that if he is captured, he has "pre-written" enough material that his blog will continue for "at least a year." That's pretty impressive.

Twitter

2012-07-07T17:15:30Z

I've been a big fan of Twitter from the point I first started using it (h/t Evan ... thanks for nothing). I can't say much for any personal branding benefits from my 20,000 or so Tweets (I'll leave that to my personal branding consultant).

I use it because it's fun--a great way to find information and pretty much chat with anyone. Being a chatty person by nature, I thoroughly enjoy this medium. As to the people who are driven by marketing purposes to use Twitter I sort of feel bad for them. Going down this road you will either find yourself in the town of disappointed expectations, or you will have a fairly staid and boring Twitter experience. If you signed up after attending a webinar then this is a triple whammy.

For no reason in particular, for the past couple of weeks, I scaled back on my Twitter usage. Shockingly, life went on, and pretty much stayed the same. I survived. It's sad and a tragically first world thing to say, but it was sort of a strange and liberating realization that I didn't need to send out 10-15 tweets a day. I also (coincidentally, on Twitter) came across Ta-Nehisi Coates' post on leaving Twitter: "I left Twitter." It's meta, but Ta-Nehisi was a really fun person to follow and a prolific twitterer. Here's what he had to say about why he left:

And so at times I'd find myself babbling, taking no real account of who I was babbling to, or what I was babbling about. All of it wasn't babbling. Twitter was great for improving my French, for instance. But I think the sheer ease with which one could speak--to thousands of people--was a problem. It should never be that easy for me. I must be forced to think. I must remember that I don't talk for the benefit of other people, but, primarily, for myself.

Maybe he'll be back, and I can't say I feel exactly the same way about it, but food for thought.

Leaving Facebook

2012-06-11T04:10:25Z

Prompted (nudged is probably more accurate) by a post from William Carleton, I finally deleted my Facebook account. I had been thinking about doing so forever, but just never got around to doing it.

Numerous others have written about why they "left Facebook" (see, e.g., Steve Coll: "Leaving Facebookistan"), and I'm skeptical that I have anything to add to the mix, but finally deleting my account feels like a very small (tiny pebble-size) weight off of my shoulders. I had approximately 200 friends, and about 100 friend requests pending, but I just never ended up logging in to Facebook. I'd say I logged in once per month at most. (I should note that I still use Instagram and couldn't get myself to delete my account there.)

Facebook's privacy settings were not the easiest to figure out and changed frequently. In particular, it seemed difficult to figure out how to control distribution of your posts, who could comment on your posts, and what account to post from if you have multiple accounts. I controlled my group of friends pretty carefully and they are all run-of-the-mill, mainstream, law abiding citizens (one or two exceptions notwithstanding), but I just couldn't shake the sense of paranoia that something could go wrong with my Facebook account. I never bothered with Facebook's mobile app. From what I heard, it wasn't very easy to use, and always seemed like the true grey area as far as user privacy was concerned. But what truly prompted me to leave was a feeling similar to the sentiment expressed by Eryn Loeb in this 2010 article from the Awl ("My Former Best Friend's Wedding"). I'd state Loeb's point in slightly different terms: why mess with the natural order of things when it comes to your past friendships and relationships?

Try as I might, I couldn't think of a good reason to do so.

Seattle Blawger Meetup

2012-04-15T18:07:55Z

I really enjoyed last week's Seattle blawger meet up. It was great to see a bunch of Seattle law bloggers and twitterers. (In attendance: Colette, Mike Atkins, Bruce Johnson, Tonya Gisselberg, Heather Morado, Asher Bearman, Ziff, Brian Rowe, Joe Skocilich, the 'other Kevin' from LexBlog, Eric Goldman, William Carleton, Josh King, and Mark Britton.)

I'm not sure what it is, but I've always enjoyed meeting law bloggers (and bloggers generally). Lawyer gatherings tend to be relatively mundane and mostly unenjoyable affairs, but law blogger gatherings are different. There's something about a law blogger's personality perhaps that makes finding common ground easier? On thing is for sure, it's the most painless form of networking that exists (in the lawyering world).

Here's @wac6's recap: "Last Night's Tweetup for Seattle Blawgers." (Thanks to Avvo for hosting.) [Do we look like a bunch of gangsters, or what? Check out the picture below:]

On a related note, I also enjoyed meeting Eric Goldman in person last week. It's funny to meet someone in person that you've exchanged thousands of emails with. This isn't the first time I've experienced this but there's that feeling of wondering whether the person will match up in person to their 'online personality'. Sort of a professional version of meeting someone in an online dating context after you've corresponded with them a bunch (in this case, a ton). Eric is great. Very fun to hang out with. He treated me to dinner at a vegetarian restaurant and to gelato (and they say blogging isn't profitable!).

A Reading List for the Novice Social Networking Lawyer

2012-04-06T04:50:44Z

The other day, a lawyer pinged me out of the blue and asked if I would be willing to chat about social networking and share some tips. This has only happened two or three times before, but this is still enough to concern me (you want to be known for your lawyering skills and not your social networking skills). Anyway, I did what I usually do, which is to drink the coffee and chat for 15 or 20 minutes. It was enjoyable.

The person asked me if I had any interesting links or reading materials to pass on about social networking for lawyers. I didn't have any links off-hand, but I thought about it again over the next few days and came up with (sorry, 'curated') a few links. I don't think you have to read anything if you are thinking about dipping your foot in the social networking waters, and it may even be preferable to not go in with any preconceptions, but here are a few of the articles (among the many thousands) that I think are worth reading beforehand:

1. "Lawyers: You're Being Played by Twitter" (Keith Lee). This is an excellent post by Keith Lee that talks about 'gamification' and social networks. It's a simple enough concept but crazy when you think about it--the fact that the gaming instinct is what drives so much of behavior on social networks. You put something on Facebook and Twitter and the anticipation of seeing how people react to it is what makes you click over and over again. I can't say that reading this article affected my behavior much, but it provides some very helpful context. It's tough to deny that the process described here doesn't at least form a part of everyone's social networking drive. This is not something I would have realized naturally, even after having spent a significant amount of time on social networks.

2. "Why Digg's MrBabyMan is the King of All Social Media" (Farhad Manjoo). This article profiles Andrew Sorcini, a Los Angeles area film-editor, who Manjoo describes as the "Michael Phelps of Digg." You may not have heard of Digg. That's not really important. (See below.) What I really liked about the story is that it gave a human face to someone that spends a lot of time on social networks, and describes his process for scouring the internet for interesting stories and posting these links to a social network. I'm not sure what Mr. Sorcini is up to these days and whether he still posts in Digg, but that's neither here nor there. This is the profile of someone who is (or was) a "power social networker."

3. "The Great and Powerful Reddit" (Farhad Manjoo): This is another Manjoo article that talks about Reddit. He describes Reddit as once having been a "second-tier aggregator" (it was formerly a Digg competitor) but is now a driving force in online discussions. Reddit has become a barometer for what news is important online (and thus to the world at large). It was very influential in the anti-SOPA/PIPA debates. The big takeaway for me on this one is that networks live and die. They constantly change. No network lasts forever. For that matter, nothing lasts forever, but this is stating the obvious.

Two bonus reads.

First, I would read anything by Brian Tannebaum. Tannebaum is one of my favorite social networking lawyers (of those that I've come across). Why? He seems to share my almost irrational dislike for legal marketing. I just have an instinctive aversion for how it plays out, particularly online. (This probably says more about me than about legal marketing, but again, that's neither here nor there.) Tannebaum is a die-hard skeptic about marketing over the internet. That's not entirely true. He writes a blog and sends out a fair amount of tweets, but let's just say he calls a lot of BS on what's going on out there. When it comes to online marketing, this is an extremely healthy trait.

The final read isn't an article, it's a book. A book by a former Rolling Stone reporter turned pickup artist, called "the Game". I'm happy in a long-term relationship and don't have much practical use for a book about getting dates, but it is a compelling read. A good friend of mine who was a lawyer mentioned it to me about ten years ago and told me that a mutual friend of ours who was a geeky lawyer read this book and achieved some success with it. I dismissed the whole story as typical pub chatter, although I was sort of curious about it. A couple of years ago, another friend actually sent me a copy of the book. It appeared to me that he had downloaded the copy from a torrent site and for some reason one morning I was feeling paranoid (maybe somewhat guilty) and decided to buy the book on Amazon. I never thought about it or read the book until I was sitting on a long plane ride and ran out of books to read on the Kindle. I started in on The Game and ended up blazing through it over the course of the next four or five days. The Game ended up providing some good insight into a topic I have forever been curious about: self help subculture. The book was marginally interesting for its treatment of the tricks of the pickup artist but what was more intriguing about the book was how it delved into the self-help world. This is something that is prevalent in social networks. Whether you talk about the "gratitude economy" or the "like economy," a very very interesting social phenomenon you will inevitably come across online is people building little communities that they then impart knowledge to, often for a small fee. (I haven't read Seth Godin but I think this is what his "Tribes" concept is all about.)

Anyway, here is my list of the key reads on social networking. Enjoy.

Randazza

2012-03-24T17:31:32Z

I meant to post a congratulatory note to Marc Randazza about four or five (or six) months ago on the Righthaven smackdown but never did. This post from Scott Greenfield reminded me that I never got around to doing it.

For the few who may not be familiar with him, Randazza is a~~n awesome~~ kick ass lawyer and uber blogger. He was and is one of the provocative voices in the blawgosphere who to me exemplifies what law blogging (and blogging in general) is all about. At the Legal Satyricon, he and his band of Satyriconistas post on a wide range of topics from online liability and the First Amendment to politics and the ethics of eating meat (see "Ethics challenge - come up with a good reason for being a carnivore"). In an era where lawyers and others are increasingly concerned with "brand perception" and "personal branding," it's refreshing to say the least to see someone who is not weighed down by these things. I haven't talked to him about it but I would guess that he scoffs at the idea of a personal branding consultant. I'm guessing he's not following Klout with keen interest either.

Anyway, Randazza (and others at the Randazza Legal Group) deserve serious kudos for taking down Righthaven, taking away their domain name, and their intellectual property. The domain name was bought at auction and now offers "hosting service with a spine." As Eric Goldman said, it's a pleasure to watch Randazza litigate. More important than his blogging exploits are his accomplishments as a lawyer. And Righthaven is just one of the many cases where he's achieved a big win. The Glenn Beck domain name smackdown is one that sticks out in my mind. (See "Glenn Beck's Attempt to Rape and Murder Free Speech in 2009 - Thwarted.") Here's a list of some of his successes, many of which vindicate First Amendment/free speech rights or involve pushing back aggressively against people who try to bully bloggers and others: "Marc Randazza: First Amendment Badass."

I sometimes get mildly depressed when I think about the era of the "social media lawyer" and lawyers doling out advice in 140 characters. It can be dispiriting to say the least to see the direction social media has taken much of the legal profession. It's nice to see people like Randazza out there in these times.

[That's not to say I don't disagree with some of the positions Randazza takes. I have some some core philosophical differences with the position he takes in this post, for example.]

Walmart Viewers

2012-02-10T16:25:07Z

This exchange between a defense lawyer and a security guard in a shoplifting trial struck me as funny.

The security guard says the accused is looking around furtively, like a shoplifter would. Defense counsel asks the security guard whether there may not be an alternate explanation for the defendant wanting to look around the aisles of a Walmart:

Q. [DEFENSE COUNSEL:] Okay. Now, Mr. Rowe, you were talking about she was leaving the isle [sic] and she appears to be looking around; is that correct?

A. [ROWE:] Yes, sir.

Q. That she's looking at other customers?

A. Yes, sir.

Q. Isn't there a phenomenon going on now concerning go [sic] to Walmart and watching the other customers, what do they call that? Have you heard about that?

A. I have not heard about this, sir.

Q. In fact, people are taking pictures of Walmart customers and putting them on my book [sic], my face [sic], or Facebook or You Tube or whatever, aren't they?

A. I--

Q. You don't know that?

A. No, I haven't heard about this.

Q. Okay. Called Walmart viewers or something like that, people checking out what other customers are doing. Checking out the different types of people that go into Walmart, have you not heard about this?

A. I have not heard about this.

Q. All right. Thank you. I have no further questions.

The jury convicted appellant of theft of property valued at $50 dollars or
more but less than $500.

Huff v. The State of Texas [link]; (People of Walmart).

Please be Honest and Tell me This Post Sucks

2012-02-08T21:49:17Z

Scott Greenfield posted a couple of weeks ago about the delusion of finding a mentor online: "Twitter and the Mentor Delusion." Honest criticism ("telling you when you suck") is a key part of mentorship. I would say it's integral. I have learned the most from lawyers (and others) who tell me unabashedly that my work product left a lot to be desired. I recently sent a brief off to a lawyer who falls in this category. I had labored over it for hours. Hours and hours. I knew it wasn't perfect but I thought it was pretty good. His first words: "you're off to a good start here."

Honest criticism is tough to find on the social web, and this is why we should be skeptical of the whole idea of online mentorship, particularly on sites such as Twitter and Facebook. Far from telling you that you suck, people tell you that your stuff is great. This is a double whammy.

I recently came across a post from a totally different realm that captured this nicely:

Positive reinforcement is your enemy. Your Facebook friends, your Twitter followers... hate you. Instead of taking ten seconds to say. "This doesn't work. You need to do better". They readily push that "like" button, because it's easy and they hope to get the same from you, but also because they're cowards.

They're afraid of the internet mob. Nobody wants to get on the wrong side of a mob, so it's easier to play nice. Go along to get along seems to be the secret to a happy online life.

("Chances Are, You Suck.")

For a second there I almost thought Scott Greenfield went off and started a photography blog and wrote those words.

I don't know that I necessarily subscribe 100% to why people are reluctant to be negative online (in the social context), but I think his point rings true. For whatever reason, people are free with their praise, and if you are looking to hone your craft, feedback from the social web isn't necessarily the best place to go. In fact, it's probably the worst.

Added: Pew Internet released a survey (Feb. 9, 2012): "The tone of life on social networking sites:"

The overall social and emotional climate of social networking sites (SNS) is a very positive one where adult users get personal rewards and satisfactions at far higher levels than they encounter anti-social people or have ill consequences from their encounters.

I'm shocked! (Two other parts of the survey were somewhat interesting, but the first finding was entirely predictable.)

(For what it's worth, I've met a lot of people online who I've learned a lot from so I don't recommend being closed off in this sense. Maybe not a lot. At least a few.)

Twitter's Decision to Censor

2012-01-28T21:33:28Z

Twitter recently announced its decision to censor tweets on a country-by-country basis. People were up in arms and planned a #twitterblackout. It was a big story last week. (Needless to say, I didn't participate in the blackout.)

As an initial note, Twitter's decision is entirely defensible and I thought Twitter (and its General Counsel Alexander Macgillivray) handled it with poise. I also don't know that its decision can easily be placed in the 'censorship' category since it's implemented by a private entity, which has tremendous discretion in blocking content. (Some of this depends on the actual policy, which we don't know the contours of.) Anyway, this is neither here nor there. What was striking about this story was how it played out in the media. In particular the muddled nature of the media narrative that followed this story.

What Types of Takedown Requests Will Twitter Honor?: I would have thought the key question here would be the contours of Twitter's policy--did it remove content in response to a court order? An administrative request? A takedown from a private party? Did it matter whether the request was premised on IP infringements? (no) Could it make certain topics totally off-limits in response to a government request? Would it block accounts? (yes) Hashtags? Would it make Twitter totally unavailable in a country? Here's a blurb from a NYT article titled "Censoring of Tweets Sets Off #Outrage" (italics added):

Twitter, like other Internet companies, has always had to remove content that is illegal in one country or another, whether it is a copyright violation, child pornography or something else. What is different about Twitter’s announcement is that it plans to redact messages only in those countries where they are illegal, and only if the authorities there make a valid request.

Huh? What's a "valid request"? An Associated Press story ("Twitter's new censorship plan rouses global furor") was similarly vague about what types of takedown requests Twitter would respond to:

Twitter said it has no plans to remove tweets unless it receives a request from government officials, companies or another outside party that believes the message is illegal. No message will be removed until an internal review determines there is a legal problem, according to Macgilliviray.

There's a big distinction between a takedown notice from a government, one from an individual (including one sent under a takedown regime such as the DMCA) or a corporation. Another story from the Times of India adds some detail and hints at this specific question ("Twitter's censor move with eye on China?"):

some experts wonder if Twitter's position was really different from that of Google or Facebook. "Google and Facebook have said that they would remove content if ordered by the courts, and Twitter too is saying that it can block tweets if required by the law," said an expert. "Where laws are codified, as in Germany and France about pro-Nazi propaganda, Twitter can block pro-Nazi tweets proactively. But in countries like India, where the laws are not that specific, this will be done reactively on the basis of court orders. That's all Twitter is saying."

(??) It's strange that the stories all described the key decision in question in totally vague terms. Obviously it wouldn't make sense for the stories to describe in painful detail the innumerable types of requests an entity such as Twitter receives and how it deals with each of these types of requests, but it was clear after reading these stories that the media didn't have a firm grasp on the contours of Twitter's 'policy'. This was somewhat strange because this was the crux of the story, right? There's one larger aspect of the story which was clear which is that Twitter decided that whatever its policy is regarding takedowns, its response can be limited by country or region--i.e., if one particular country or region decides to send a takedown this may not affect all Twitter users. (The content will be available elsewhere. Also, as others quickly pointed out, depending on how Twitter's policy is implemented, there are ways around the blocking of content even in the local jurisdiction.)

Not surprisingly, many press reports cited to EFF's statement regarding Twitter's policy but even EFF's statement was fairly vague on the particular point of what takedown requests Twitter will honor ("What Does Twitter’s Country-by-Country Takedown System Mean for Freedom of Expression?"):

Twitter already takes down some tweets and has done so for years. All of the other commercial platforms that we're aware of remove content, at a minimum, in response to valid court orders. Twitter removes some tweets because they are deemed to be abuse or spam, while others are removed in compliance with court orders or DMCA notifications. Until now, when Twitter has taken down content, it has had to do so globally. So for example, if Twitter had received a court order to take down a tweet that is defamatory to Ataturk--which is illegal under Turkish law--the only way it could comply would be to take it down for everybody. Now Twitter has the capability to take down the tweet for people with IP addresses that indicate that they are in Turkey and leave it up everywhere else. Right now, we can expect Twitter to comply with court orders from countries where they have offices and employees, a list that includes the United Kingdom, Ireland, Japan, and soon Germany.

From what I gather, Twitter's blocking policy will be implemented on a case by case basis and it didn't announce any sort of policy for what types of takedown requests Twitter will automatically honor. But to me this is a key point that none of the stories really dug into.

Will Twitter Implement its Policy Only Where it has People and Offices?: This is another question that I was curious about. Will Twitter honor requests from countries where it doesn't have offices or does this work on a case by case basis also? If Twitter's assets, offices, or people are at stake then this obviously changes the calculus, but what about far-flung jurisdictions where Twitter has no presence and no expected or future relationships? EFF's post also hints at this but doesn't really offer specifics:

Twitter's increasing need to remove content comes as a byproduct of its growth into new countries, with different laws that they must follow or risk that their local employees will be arrested or held in contempt, or similar sanctions. By opening offices and moving employees into other countries, Twitter increases the risks to its commitment to freedom of expression. Like all companies (and all people) Twitter is bound by the laws of the countries in which it operates, which results both in more laws to comply with and also laws that inevitably contradict one another. Twitter could have reduced its need to be the instrument of government censorship by keeping its assets and personnel within the borders of the United States, where legal protections exist like CDA 230 and the DMCA safe harbors (which do require takedowns but also give a path, albeit a lousy one, for republication).

For what it's worth, the tradeoff between keeping a local presence and complying with a foreign court order is not anything new. Google has dealt with it, among other countries in Italy. (For all I know @amac could have been one of the lawyers who dealt with this while at Google.) Yahoo! dealt with it in France when it was ordered to take down Nazi memorabilia. In evaluating Twitter's policy, I would guess what people would want to know most (apart from what types of takedowns Twitter intends to honor) would be what types of jurisdictions Twitter intends on screening content in.

__

Maybe Twitter's decision isn't really a policy decision to screen content at the request of governments or entities but to make available the capability to screen content by geographic regions. There's a fundamental difference between the two. I certainly got a clear sense that there was a policy change afoot from the stories announcing Twitter's decision. Either way, none of the stories bothered to get into the details on what I thought were the two core issues. We're not much wiser in terms of Twitter policy than we were when we started. On the one hand, this is somewhat strange, given that most reporters live and breathe Twitter, regardless of whether this is their reporting beat. On the other hand, maybe it's an example of how social media can infect journalism? Reporters are friendly with Twitter so maybe they were reluctant to ask the hard questions? Maybe everyone was in a rush to get their stories out so they didn't dig deep? Either way, I thought most of the stories were fundamentally lacking.

As for how the people on Twitter themselves reacted to the story, that's a depressing one. Take a cruise through the #twitterblackout hashtag and see for yourself.

[For my money, one of the best stories on this was from Al Jazeera, which raises the fundamental question of what Twitter's policy is exactly: "Making sense of Twitter's censorship."]

Other posts worth checking out:

Twitter's initial blog post which wasn't crystal clear on the issue: "Tweets still must flow."
Lauren Weinstein: "Twitter's censorship muddle."

Happy National Compliment Day

2012-01-24T23:13:08Z

This has been simmering around for like six months and I have to get it off my chest.

Is there a controller for National Days? Any sort of registry? Any process through which you have a National Day certified? Is there any sort of regulation of "National Days"? Should there be?

I ask because (probably owing to my time spent on Twitter) I've noticed that there's a "national day" for everything. I'm not taking about holidays, or days honoring a particular country's independence. I'm talking about things like National Donut Day, National Hugging Day, National Peanut Butter day, and National Day of Unplugging.

Do people just make up their own National Days and put up a website? Is it usually a commercial event?

I'm mildly curious.

BTW: on a related note, Happy National Compliment Day (You. Are. So. Awesome!). This National Day is my personal favorite and yielded a new rallying cry. YASAAAAAA! (h/t @LilyJang)

Why Lawyers Should Use Pinterest

2012-01-20T15:18:45Z

I don't know whether lawyers "should" use Pinterest. I don't know whether lawyers should use Instagram. I don't know whether lawyers should use Google+. I don't know whether lawyers should use Foursquare.

Why are people asking these questions? Why are people answering these questions? There are lawyers out there who are doing good work. Being hungry. Being ethical, zealous, and responsive. Helping people. Advancing causes. Mentoring other lawyers. Doing interesting things with their lives outside of lawyering.

Do you really want to be one of those lawyers who spends their time worrying about whether "lawyers should use Pinterest?"

Podcast: Honk if You Love Free Speech

2011-11-25T16:52:00Z

My first podcast, with Mike Reitz of the Supreme Court of Washington Blog (published by the Freedom Foundation): "Honk if you love free speech."

I've never done a podcast before, and Mike was a great host. We talked about State v. Immelt, a case where the Washington State Supreme Court struck down a Snohomish County noise ordinance which prohibits horn honking except when the honking is done for public safety or as part of a public event.

Check out the podcast here. Also, check out the excellent Supreme Court of Washington blog. It's a great resource for following the Washington State Supreme Court.

Of course, you can also follow Mike on Twitter.

Ceglia's New Lawyer Derides Facebook's iPad-Less Legal Team

2011-11-16T15:55:54Z

I posted some time back about lawyers and iPads ("What is the 'iPad for Lawyers' Crowd Smoking?"). At Simple Justice I see that the debate continues, and Scott mentions some back and forth that took place on Twitter. ("The 7 "P's" and the iPad"). (See the kind of stuff you miss out on if you aren't on Twitter?)

I'm over this debate. If you are a lawyer or other professional and you're extolling the virtues of having an iPad I can chalk it up to you pushing your pet issue. Maybe you don't like carrying briefcases? Maybe you're one of those people who likes their toys. Who knows? If you are a consultant of some sort, this is more problematic, and borders on negligent.

Anyway, I noticed that someone else chimed in on the whole debate, and it happened to be Paul Ceglia's latest lawyer! Ceglia, who is suing Mark Zuckerberg and claiming a significant ownership interest in Facebook, has been through several lawyers. ("Facebook Claimant Paul Ceglia Gets New Lawyer.") Ceglia's latest lawyer has posted a bunch about the Facebook dispute, but here is one post of his that caught my attention: "Tech Behemoth Facebook's Un-Techy Legal Team."

Another day another expedited discovery hearing in Ceglia v. Facebook. An amazing sight, which I am sure that Mr. Zuckerberg does not know. Let me paint the scene. I walked in to the courtroom and took my seat with Paul Argentieri, local counsel, and setup my iPad. No pen, no paper, just an iPad2 and some great apps like Goodreader and Evernote. In walks Facebook’s Dream Team. Three lawyers at the table and four other lawyers sitting on the bench behind the three. Seven lawyers and take a guess how many laptops? iPads? Think small. Think zero. An amazing irony today that between a huge law firm and a small town lawyer, the most tech savvy lawyer was NOT the one paid millions by one of the largest tech companies in the world.

I have no idea how Ceglia's lawsuit will turn out. Like most people, I'm skeptical. Also, you raise the skepticism meter as a litigant about a thousand notches when you go through a bunch of lawyers. I did think it was strange that his lawyer knocked Facebook's allegedly untechy legal team, and did so in a post that highlighted the virtues of the iPad! For what it's worth, I wasn't particularly sold on his post (really, he could find documents faster?), but as I said earlier I'm over the debate.

Athletes and Singers Have Coaches. Should Lawyers?

2011-10-06T18:08:58Z

I'm not a fan of talking about law practice consulting (coaching). One reason is that I don't think I've cracked the code on lawyering and I'm thus hesitant to opine on what goes on in the world of lawyer-consulting. I'm also not sure about whether someone needs to be a standout in a particular field in order to coach in it. (My strong instinct is, "yes," but one look at athletic coaches make me rethink this every time.)

However, I've noticed a proliferation of lawyer-coaches out there and I've developed a deep skepticism about their trade in general. While I know I may not have cracked the code, I'm fairly certain that no lawyer-consultant has cracked the code either. You know why? If they had, they would be lawyering and not consulting. Lawyer-consultants will offer up a variety of reasons for why they would rather be consulting than lawyering, but I think it pays to be skeptical of these justifications. The work-life balance justification, the flexibility justification. The modern law practice (at least as the consultants would have you believe) allows you to achieve all of this and still maintain a law practice. Why wouldn't they be doing it? Let's leave aside the question of money (you can easily draw your own conclusions there) but when pressed, lawyer-coaches rarely offer convincing justifications for why they do what they do. There's a final justification that I've seen often raised but I think this deserves to be dismissed this as an outright joke: they're doing it out of a sense of altruism or to improve the profession. Right.

At the end of the day, the minimal requirements to be a lawyer who keeps his or her head above water can be summarized in a few short sentences. I have yet to come across a lawyer who is implementing these strategies (tactics? -- I don't know the difference but I'm sure a consultant will be quick to point out the difference) but who is still struggling. Consider this my own contribution to the well of lawyer-consulting knowledge. If you're a lawyer and you are considering hiring a lawyer-coach, try implementing these strategies first and then come talk to me.

Here are the basic traits* a lawyer needs to survive:

be diligent
be zealous (as in, a zealous advocate)
be highly ethical
be honest
be friendly (as in, don't be a jerk)

If you develop these traits and you are still not surviving as a lawyer, drop me a comment. I'm happy to take you out to lunch and offer my consulting services. For free. (There's a final element which is getting more difficult for young lawyers and that's to gain experience in the field. I doubt a consultant will help you much in this regard, and this is something that has always been a challenge to young lawyers outside the organized firm/collective setting.)

In the three week lag between when I drafted this post and hit publish, I came across an article from author and surgeon Atul Gawande in the New Yorker: "Top Athletes and Singers Have Coaches. Should You?" This is a great article that explores this very question. I urge you to read it if you are interested in this topic. Gawande concludes that it's helpful for surgeons to have coaches so they can continue to develop (it's helpful to have an "outside perspective," he says, even for accomplished musicians, athletes, and even surgeons). Gawande grapples in the article with the question of whether coaches need to be standouts. Regardless of how he resolves the question ("no," he says), you'll notice one thing. The person who he picks to rely on for coaching is no slouch:

a retired general surgeon, whom I trained under during my residency, to see if he might consider the idea. He’s one of the surgeons I most hoped to emulate in my career. His operations were swift without seeming hurried and elegant without seeming showy. He was calm. I never once saw him lose his temper. He had a plan for every circumstance. He had impeccable judgment. And his patients had unusually few complications.

Food for thought.

* you will notice I did not include "become an expert marketer" on the list. If that's what you are hiring your consultant for, you have a long road ahead of you.

[I should add that mentorship is incredibly important as a lawyer, even for experienced lawyers. But in the legal realm, there's a grand canyon of difference between a mentor and a paid consultant.]

Lawyers and Klout

2011-08-25T14:17:35Z

Kevin O'Keefe posts about Klout and provides a sensible take ("Klout for Lawyers: what is it? does it matter?").

Other than if you are interested in snack foods and subway sandwiches, I don't know the answer to the question of whether "Klout really matters." (If you're into free snack foods and subway sandwiches, there's definitely some measurable ROI from Klout.) There's not a whole lot to disagree with in Kevin's post, but what struck me is that a lawyer actually asked Kevin this question. I understand that Kevin is steeped in blogging and the use of media by lawyers and often provides useful information and would very likely have an opinion on this topic, but let's step back for a second. A lawyer actually asked someone whether they should be using Klout?

Lawyers are supposed to be critical, be able to do their due diligence. We may not be whiz marketers, but something like the efficacy of Klout for our own practice should be something we should be able to readily develop an informed opinion on, right? This is the type of thing we're called on to do every day in our practices, whether you are evaluating a case, business transaction, an argument, etc. In the time you email someone to get their opinion on Klout, you could check out Klout's website and figure out what they are about. The next step is to determine whether any of your clients or potential clients use Klout or will care about it. There's a pretty obvious way to do this: ask them! (In fact asking one or two of your clients is probably a better way than reading any number of blog posts to figure out whether Klout is at all relevant to your professional life.)

I understand there may be a variety of opinions on Klout, but seriously people. Let's get it together. Should the legal profession really be having a discussion on whether Klout is useful for lawyers?

There are lots of reasons to fear for the future of the profession, but this definitely makes the list.

Added: I came across this detailed piece from The Time Blawg: "UK Law Firms With Klout -- A Clearer Picture," which takes a look at a 'report' from The Lawyer, a UK publication: "Top firms losing out to upstarts in social media sphere."

The picture looks bleak is about all I can say.

Koncision's NDA Builder

2011-06-16T16:49:45Z

Thanks to Ken Adams who blogs at The Koncise Drafter (f/k/a AdamsDrafting), I tried out Koncision's NDA builder product.

It basically takes you through a questionnaire aimed at the terms for your soon-to-be built non-disclosure agreement. After answering the various questions, the product generates a non-disclosure agreement tailored to your needs. You can then freely edit and use this document.

The product is easy to use and supported by the type of clean and precise drafting language that you would expect from a person such as Ken Adams.

My one very minor qualm is that it basically builds you a robust agreement and doesn't give you a choice to build the scaled back version. (It may have, but it wasn't apparent to me.) I have mixed feelings on NDAs and some people like them and others think they are useless. (Still others will refuse a meeting with you if you ask them to sign an NDA.) It would be nice to be able to choose between the scaled back/minimalist NDA and the big Kahuna, without having to answer all of the questions.

Either way, I was impressed with the product. It's intuitive and easy to use and I can see this being useful for in-house counsel or even business folks. Is this the Susskindian revolution in action? Time will tell. I can see many other agreements being templatized in this way. (Either way, good luck to Koncision. I've always been a fan of Ken's blog and work.)

Added (see Ken's comment below):

If you want a fewer-bells-and-whistles NDA, you would answer "No" to questions addressing issues that are irrelevant. Sure, that means you still have to answer all the questions, but once you're used to the questionnaire, you can zip through it.

And even simpler, if you want to create an NDA that closely resembles one you created previously using Koncision, you can simply relaunch that earlier questionnaire and make the necessary adjustments, thereby avoiding having to redo the entire questionnaire.

More:

from Carolyn Elefant: "How to get a Piece of Ken Adams, Without Paying an Arm or a Leg."

Are Social Media Legal Issues Overhyped?

2011-06-05T06:06:42Z

I have an interest in the legal issues raised by social media, but I wonder if the issues are being overhyped?

I attended a conference last week (where I actually presented on social media legal issues) and I happened to sit in and listen to another panel where the panelists also covered some related issues. Mark Herrmann, ex Drug and Device blogger and currently a columnist at Above The Law (and general counsel at Aon), was talking about social media policies. He pointed to some good resources, but ultimately he raised the question of whether a policy that is tailored specifically to social media really added anything to the mix. He posed the question of whether common sense and whatever existing policies you have in place get you 90% of the way there? (I'm paraphrasing, but this was what I took away from some of his comments.)

This got me thinking about the tremendous amount of attention that is paid by law bloggers, and the legal and tech media to the legal issues raised by social media. Mark also said something else that resonated--he said that the "blogging echo chamber" tends to disproportionately amplify legal issues related to the internet (and to blogs). This makes sense. If you are into spelunking as a hobby, you probably get excited to read about and discuss any issues, including legal issues, relating to caves. So it's not surprising that bloggers in general, and law bloggers in particular, get really excited about the legal issues that relate to the internet and to blogs.

For the most part, many of these legal issues will be resolved with reference to traditional rules. There are a few big exceptions obviously, such as the protection afforded to online intermediaries, but apart from these, a legal issue that presents itself in an online context may be novel from a factual standpoint, but the baseline rules are the same. Despite this, we as law bloggers get pretty excited when we see a legal issue that relates to Facebook or Twitter (or, in the old days, MySpace). I'm as guilty as the next person here. I have Lexis alerts set for many of these companies and a big portion of the cases in my blogging queue are cases involving these companies. However, it seems like a chunk of the legal profession seems to use these legal issues as a scare tactic to drum up business from clients and potential clients. I can't tell you how many posts I've seen that follow this formula:

there's a very cutting edge legal issue out there in the social media space and this presents significant risk for you or your company;
if you put in place a social media policy you can limit your risk with respect to this issue;
for further information, call me at xxx-xxx-xxxx -- I'd be more than happy to help draft a policy for you [for a small fee, of course].

The general public has a sense that the social media space is a legal minefield. And the ones who are significantly responsible for this misperception aren't necessarily the old school press or the lawyers who haven't yet joined the blogging and tweeting revolution. This leaves those lawyers who are active online. Are lawyers who blog and tweet actually responsible for this misperception? I don't know, but my sense is that we're certainly contributing to it (some more than others).

It's also worth stepping back and asking a big picture question of how social media has informed the general public and actually resulted in the dissemination of useful information in a way that will minimize waste with respect to dealing with lawyers. Through the slow and painful embrace of social media by lawyers, have clients become better informed in a way that has allowed them to save money and save dealing with lawyers for the real issues that matter? Have lawyers empowered clients to allow the clients to deal with many of the issues that would otherwise require a phone call or an email to the lawyer? Or have lawyers used the social media bugaboo to try to drum up more business for themselves? In other words, has social media ushered in the beginnings of a "revolution" that legal industry commentator Richard Susskind predicted or has it had the opposite effect in some ways? I don't know the answers to these questions, but I think it's a question worth asking. There are some interesting things going on such as wikis and drafting tools, and a push to standardize and templatize (and make paperless) certain contracts and transactions, but I don't see this much when it comes to social media. I don't get the sense that the general public has become well informed as to the true risks (if any) from using social media.

[While you are at it, take this survey about the "Impact of Social Media on Access to Legal Information" (via Scott Greenfield).]

Beware of the Online "Filter Bubble"

2011-05-18T05:32:00Z

Bubbles are bad, unless you happen to be a kid playing with those soap bubbles you blow. They have a bad connotation in the economic context. Most often they are used to describe someone whose views are limited. 'Living in a bubble' is the equivalent of wearing rose colored glasses. It's like having a fundamental block or a screen that prevents you from seeing the relationship of your day-to-day actions to the overall scheme of life.

I'm convinced that people can and do develop bubbles online. The social network or website where you most spend your time. It's probably a bubble. (That bubble for me, happens to be Twitter. Specifically, the group of people I follow and interact with on Twitter.) There's this view that online networks open you to connections in far flung regions of the world and subcultures that you would not otherwise experience offline. Therefore, interacting online presents less of a danger of the bubble. This seems like the exception to me. For the most part, you form a network online like you do offline, and you filter the information you take in through this network. I'm tempted to say that if your network is good, there's no real downside of having this filter, but my instinct is that this is wrong. It does not matter what your network consists of. A bubble is a bubble, and if you fall prey to it, it results in myopia. It does not matter if your network consists of tattoo artists, punk rock musicians, bloggers, Fortune 500 CEOs, entrepreneurs, marketers, multi-millionaires, high powered lawyers, or politicians. You may think you have carefully selected and curated your own eclectic and varied mix of online friends, but I'm really skeptical that this somehow negates the effects of the bubble. Virtually every single person I've observed and interacted with online (and in real life) has this bubble. I think the problem is that we're lulled into a false sense of security into thinking that since we're interacting online, the serendipity of online interactions will somehow save us from this bubble or negate its effects. I'm not so sure this is the case. (I posted a ways back about Journalists and the social media bubble: "Social Media and Journalism - Downsides?")

In thinking about the effects of the online bubble, I mostly considered the ever-narrowing influences of one's online friends. I did not think at all about the effect of another participant in this interaction - the social networking service itself. Google, Facebook, and others are increasingly interested in "personalizing" your online experience. The obvious reason is that the more personal the experience is, and the more targeted it is, the more the network could charge an advertiser. But what is the unconscious effect on the users of the network? Are we even aware that our bubble is being tweaked by the likes of Google or Facebook? We may be aware on a general level that the algorithms of Google or Facebook result in slight changes to our online experience and what we see and read, and who we interact with, but I doubt this is something any of us thinks about on a day to day basis when we spend increasing amounts of time online.

Eli Pariser has come out with a new book which delves into the effects of this: "The Filter Bubble." I just picked up the book and I'm very excited to read it. In the meantime, check out Pariser's TED Talk - this is really interesting and important stuff (h/t @rocketmatter):

Seeking: a Seth Godin Decoder Ring

2011-05-04T14:06:00Z

I've long struggled with the appeal of Seth Godin. He's a successful guy, having built and sold several companies and written several books, but I've found his writing (what little I've read of it) to be lacking practical value. There never really seems to be anything actionable there that will move your life or business forward. But maybe this is just me. I'm not a marketer by trade, or the sharpest marketing knife in the cabinet, and maybe this has something to do with it. He's a crack-shot marketer so maybe only other marketers truly understand him? I'm also not a huge reader of self help books, including those that can be categorized as professional self help. (For my money, Neil Strauss's "The Game" provides excellent insight into this issue, but that's a subject for another post.) Much of Seth's writing seems to fall into this category. Feel-good, but difficult to act on. But many people I like and respect from several different walks of life seem to like him and must find his advice useful. So I figured there must be something wrong with me. Some block I have that prevents me from grasping his gems of wisdom and putting them to use.

The few times I've read his stuff (while scratching my head) he's usually talking about marketing, or business organizations, or personal inspiration, so it's fairly tough for me to really assess if it's just me or his writing. These aren't topics in which I claim much expertise, so it's hard to say. Then he finally wrote about a subject I actually know about and have some personal experience with: the law ("Hard work vs. long work"). Finally, a topic where I could probably relate to his writing, if it was ever possible. I excitedly clicked over to see if I could digest (and hopefully put to use) his latest nuggets of wisdom and to see if they could unlock a whole new universe for me:

Long work is what the lawyer who bills 14 hours a day filling in forms [docs].

Hard work is what the insightful litigator does when she synthesizes four disparate ideas and comes up with an argument that wins the case--in less than five minutes.

Long work has a storied history. Farmers, hunters, factory workers... Always there was long work required to succeed. For generations, there was a huge benefit that came to those with the stamina and fortitude to do long work.

Hard work is frightening. We shy away from hard work because inherent in hard work is risk. Hard work is hard because you might fail. You can't fail at long work, you merely show up. You fail at hard work when you don't make an emotional connection, or when you don't solve the problem or when you hesitate.

Unfortunately, I fared no better with this than with the bits of his writing I had previously read.

I looked to the members of my peer group to see what they were saying about Seth's latest. They all passed it around. The law firm consultants surmised (not surprisingly): "Seth really nailed the legal profession with his latest." The mentors at large excitedly directed their mentees to immediately soak up Seth's wisdom and put it to use. I'm sure the legal marketers gave it the virtual thumbs up ("oh yeah...that's what I'm talkin' about!"). Pretty much everyone was nodding along as if they understood exactly what Seth was talking about. Except for me. I had no clue. It's almost as if Seth's post was written in an ancient forgotten language and everyone else had access to the translator but I didn't.

So...can someone please help me out and explain exactly what Seth was talking about here. Is it some variation of the "work smarter, not harder" rule that your Spicoli-esque co-worker at the pizza place or movie theater probably told you back in the day? Is this just the (similarly wonderful sounding but always elusive in application) so-called 80/20 rule, revisited? Or is there something more there? I understand his concept that in law, there is grunt work and there is more strategic work. That's stating the obvious. Everyone tries to avoid the grunt work as they gain experience and move up the food chain. Once you come to this (glaringly obvious) realization, what is Seth telling you that's putting you on that path? The "long work" will always need to get done. It will not magically disappear. You may be able to chip away at some of it and eliminate some parts of it, but nothing in Godin's post even comes close to helping you in this regard. Either way, there's still plenty of "long work" left to go around.

Maybe I'm missing something? I'm probably just not "thinking outside the box."

What Lawyers Can Learn From Journalists

2011-04-26T16:52:00Z

I'm not a fan of what "[___] can learn from [___] posts," both because anyone can learn something from anything, and because this type of a post has been stretched to the limit by blogs. But this article ("How Your Journalism Sausage Gets Made") by Susannah Breslin caught my eye, and I think lawyers can learn something from it. Breslin writes a blog called "Pink Slipped" for Forbes, and she decided she was going to chronicle an article from conception to printing (or posting).

Journalism is similar to lawyering in many ways. Of late, journalists are struggling with a professional malaise which bears an uncanny resemblance to one that seems to have afflicted lawyers. Both professions are under attack from all sides. Gone are the days when you aspire to have a comfortable and stable byline in a town (or city) newspaper or a partnership in a law firm (or established practice on your own). We both live in danger of being replaced by machines, algorithms, or content farms (LegalZoom . . . Huffington Post), or so goes the conventional wisdom. An enormous premium is placed on personal branding, and marketing one's self, in a way that almost eclipses the question of someone's actual work product. Twitter and social media are all the rage. Professional consultants, camps, and conferences dominate the advice landscape. Against this backdrop, it was refreshing to see Breslin's piece about how to be a journalist. It included none of this.

First and foremost, she dismissed (as "obvious and, frankly, rather dull") the conventional wisdom, which included advice to "intern, join a group, Twitter." That got my attention right there.

The second thing which caught my attention was that her vision was not clouded by technology. When she talked about what gear she packed she did mention an iPhone, but she mentioned something else:

Several pens. If you’re a writer, and you don’t have a pen, you look stupid.
Notebooks. I use 9.75 in x 7.5 in Composition books and 5 in x 3 in notepads.

Wow, a proponent of paper. Interesting. While most journalists (and lawyers) who dole out advice include mastery of social media (and of course, the iPad) near the top or at the top of the tools in a journalist's (or lawyer's) toolbox, it didn't make the list for her. She didn't say - "check with your Twitter stream to see what they think is interesting . . . find your story there."

Her overall advice was to get out of your comfort zone - it was focused on actually "doing stuff":

The real reason I like journalism is because I feel like it shows whether or not you are a coward. A couple of years ago, I wrote a big story about how the recession had effected the adult movie industry. Before I decided to go, I was very conflicted. I wanted to go, and yet I didn’t want to go. I couldn’t decide what to do. Finally, one day, I was cooking something, and I looked at the cupboard in front of me, and it occurred to me that the only question worth asking was: What kind of person do you want to be?
...

I hope you will go out and do good stories, the hard stories, the weird stories. Not because they need to be told, even though they do, but because they are fun, because they are the places in which you will find yourself, because they are the times that will crystallize your understanding of who you really are. That’s the thing about journalism I always forget until I’m back in it, until days like today. That packing up your gear and heading into the unknown of a story unfolding is really what journalism is all about, not jobs, not your peers, not the words. It’s just you and the story and whatever is about to happen.

I'm not a big proponent of self help materials, but the article is excellent, and young lawyers (particularly) would benefit from reading it from a professional development perspective.

Related: Her "what kind of person do you want to be" question reminded me of a post at Rebecca Tushnet's 43 (B)log about a lawyer who was on the tail end of a tongue-lashing from a court in a foreclosure case. The post (and entire transcript) are both worth a read as well.

Also related: Brian Tannebaum: "Where Have All the Lawyers Gone?"

The Vandals Blast Variety Magazine and its Lawyers

2011-04-18T20:42:00Z

First in court (in Delaware) and then on the internet. (h/t Brenda Speer)

Ouch!:

What is the "iPad for Lawyers" Crowd Smoking?

2011-04-10T21:23:00Z

I'm not sure what exactly the "iPad for lawyers" crowd is smoking, but whatever it is, it's potent.

A quick bit of personal disclosure on my own work experiences with the iPad. I tend to be pretty free in my purchases of gadgets and tech. tools. I don't have any sort of committee I have to ask when I buy something, and as a small business owner, I have the relative freedom to buy and experiment. (Some would say that I freely indulge.) I own an iPad and use it frequently (daily). However, I find it fairly difficult to use the iPad for anything more than "light work" without jumping through a lot of hoops. I may read a document here and there, send a few emails, but beyond that I rely on my iPad for one thing: surfing the web. (And for this, it's wonderful, unless you like to frequent flash sites.) My first jarring realization that the iPad could not function as a workhorse came when I decided to take the iPad instead of my computer on a trip. I was sitting in an airport lounge trying to crank out a blog post, and it was easily one of the clunkiest experiences of my entire life. I decided to scrap the post and move on to more mundane tasks such as paying my bills. This was easily as clunky. Let's just say that if you have to log on to a site in order to accomplish something, the iPad does not make this easy. Well, that's not entirely true, it can be easy, if you have the right app or add-on! The same goes with producing any sort of written material. If you want to crank out a short letter on the iPad, you have to hen-peck your way through the iPad's keyboard. I guess this can be made easy as well, if you have the auxiliary keyboard that you can use with the iPad. As I contemplated my increasingly poor-looking choice of deciding to use the iPad instead of a laptop (or netbook/Macbook air) an email popped up in my in-box. Someone had suggested redlines to a document I had written. I opened the email and the document. No redlines. Another task which would have been dead simple on a laptop seemed Herculean on an iPad. Again, it is accomplishable, if only you had the right app. (I think.) The fact that you could not even see the redlines on a document someone emailed you without purchasing something additional was a pretty clear indicator to me that the iPad was not going to be a substitute for my laptop any time soon. (On a loosely related note, Seattle lawyer and app mogul Michael Schneider released a track changes app for the iPhone. Check it out here.)

With this in mind, I'm constantly surprised by the refrain from many lawyers and consultants about their wonderful time and energy saving-experiences using the iPad. You almost get the sense that the iPad has transformed their practice (and their lives). Exhibit A: "A day in the Life of an iPad Lawyer." In this post, Josh Barrett provides an example of how he incorporates his iPad into his daily professional life, and uses the iPad in his lawyering. He wakes up, surfs a bit on his iPad. He listens to a podcast on his way to work on the iPad. Next he's at a client meeting and he takes notes on the iPad. Later in the day, a client asks for a current version of the agreement, and he accesses the document using GoodReader, annotates it and sends it off to the client. The post contains many similar examples, but they all have one thing in common. For every task, he calls on an app (e.g., Goodreader, DropBox, Elements, PlainText). (See "The iPad for Lawyers: All About Apps.") After reading this post, I'm left with a big question - "why?" What's the benefit of using the iPad and jumping through all these hoops to complete tasks which would be otherwise simple on the laptop? Does the one extra minute it takes you to boot up your laptop totally undermine your work experience? Does the profile of the laptop (which interposes a screen between you and the person you are meeting with) really detract so much from a client meeting? Does the extra 0.7 pounds that the MacBook Air require you to lug around really weigh you down that much? To each his or her own, but the choice to jump through a bunch of hoops to incorporate the iPad into your practice seems forced. We all know people who try a bit too hard telling you (and in the process themselves) that everything is going great. This is the iPad lawyer, when it comes to the iPad and productivity.

There's another question that's lurking in the background, and that is, does the modern lawyer really need to work so much "on the go?" Do we really need to be listening to podcasts in the car, and reviewing documents while at Starbucks? (I understand if you actually work from Starbucks full time, but that's a separate issue.) Even if you take the view (which I do) that the old style view of the work/life balance could use some shifting, it seems like a stretch to think that lawyers need to work on the go in order to maintain a liveable work/life balance. It's one thing to work remotely, work from home, etc., and have some flexibility in terms of where you work from. But do we need to really work from 4 or 5 different locations in a given day? Do we really need to work from mobile devices? And how does this affect the quality of our work? I don't know about everyone else, but I find it harder and harder to focus these days (thanks internet!) and my work product while I'm on the go (e.g., from an airport lounge) just lacks. There's no two ways about it.

The real question isn't the mobile work issue. If people want to work from the road, that's fine, but what about the time spent that is spent figuring out how to use your iPad in your legal practice. This is what gets me. There are entire sites devoted to "how to be an iPad lawyer." In this day and age, if you need to read stuff to figure out how to use a tool in your professional life (and the tool is not accomplishing something you otherwise could not do) it's probably a waste of time to incorporate this tool into your professional life. There's a reason why you don't see masses of blog posts devoted to "how to be a laptop lawyer," or "how to be a mobile phone lawyer." No one would read these posts. They state the obvious. At the end of the day, the iPad for lawyer guidance just seems overwrought. It would be one thing if people were telling you how to be more efficient, but they're just telling you how to get what you can get easily and effortlessly done on a laptop on an iPad. (In their defense, there is a coolness factor when you are working on the iPad. You may or may not be cranking out the work, but hey, at least you look cool. Seriously, if you are pressed for time, trying to juggle the various aspects of your life, wouldn't ramping up to use the iPad be the last thing you want to do? As a young lawyer who is trying to soak up as much experience and knowledge as possible, do you want to spend your precious time trying to figure out how to incorporate the iPad into your budding legal practice?)

Crazily, someone actually wrote a book for lawyers about how to incorporate the iPad into your legal practice (actually, it may be an app, not a book): "iPad in One Hour for Lawyers." I don't run any bar organizations, but if I did, I would consider automatically revoking the bar card of anyone who buys this book.

See also: "Bye Bye iPad" (William Carleton)

Added: if you go down the "iPad for Lawyers" route, check out this column by Niki Black "iPad Apps for Lawyers." I'm sure it's useful. (See also "The iPad as an Indispensable Lawyering Tool" from the Lawyerist.)

Also, a funny tweet from ABA's TechShow:

LOL RT @Ethics_Maven: 1/2 lawyers here have iPads, but conf materials are only on USB drive. Why no web download option? #fail #ABAtechshowless than a minute ago via TweetDeck Favorite Retweet ReplyJason Wilson
jasnwilsn

Flourishes in Judicial Opinions

2011-04-09T19:28:00Z

An article in the Globe and Mail ("The judge who writes like a paperback novelist") raises a good point about embellishments in judicial opinions. I cringe when I see overly indulgent prose in judicial opinions. The same goes for pop culture references.

The judge referenced in the Globe and Mail article changed his writing style to be "more accessible." Here's an example:

And in a murder case last year, R v Simon, Judge Watt commenced: "Handguns and drug deals are frequent companions, but not good friends. Rip-offs happen. Shootings do too. Caveat emptor. Caveat venditor. People get hurt. People get killed. Sometimes, the buyer. Other times, the seller. That happened here."

The article includes a few other examples as well.

There is no requirement that judicial opinions be dry. In fact, there are many judges whose opinions are a pleasure to read because the are the opposite of dry (e.g., Judge Kozinski). (These judges would probably all make good bloggers as well I'm guessing.) Good writing also helps the author make his or her point and judges are no different. However, at a certain point, prose can be overly indulgent, and if the judge is merely writing to demonstrate how clever he or she is, this is a disservice to the litigants and the public. There's also the point (made by Prof. Tanovich, a law clerk for former Supreme Court of Canada Chief Justice Antonio Lamer) that an opinion that is sarcastic or glib can "sensationalize and desensitize" tragic events that are the subject of opinions.

The article does not mention pop culture references but these are particularly problematic. These are the worst form of indulgences in court opinions. The judge is obviously citing the reference to show that he or she is "hip" or "with it." Pop culture references mean different things to different people, and are surely lost on people who aren't tuned in to pop culture. (Last year someone cited in a blog post to a Texas Supreme Court opinion which referenced Star Trek II: The Wrath of Khan. It was cute, and received attention in certain circles, but what if the litigants were not treekkies?) An opinion containing pop culture reference will also not stand the test of time. Justin Bieber may be popular now, but he may turn out to be unknown hundred years from now, and if you drop a reference to him in your opinion, people who are reading a hundred years from now may have no clue as to what you are talking about. (OK, this particular example isn't a great one, but . . .)

How about references to the quotations of historical figures which have withstood the test of time (in this case Sun Tzu)?

Survey Says?

2011-03-23T14:44:00Z

I swore off (and cut short my brief foray into) blogging about the future of the legal practice, but this deserves a comment. Apparently someone conducted a survey about where people look for legal services and a very low percentage of people use online sources to find a lawyer. Shockingly, most people - rather than searching online - ask a trusted source for a referral. People "consult" websites - 20% consult Facebook, 15% blogs, and 9% Twitter (??). The survey had a bunch of other facts and figures and if you're curious, you can access the survey here [pdf]: "Perspectives on Finding Personal Legal Services."

The kicker? The survey was conducted by polling people over land lines:

The survey of more than 1,000 adults was conducted through land line telephones. The results could be different if cellphone users were surveyed, the standing committee report cautions.

What forward thinking organization would conduct a survey by interrupting good people on their home phones when they are eating dinner to ask about where and how they shop for legal services? That would be the American Bar Association!

Paper.li Combines the Evils of Faux Curation and Spam

2011-02-19T17:37:00Z

I'm surprised that there is even a debate over the merits of paper.li. (I'm equally surprised that I'm wasting a blog post on this topic, but that's neither here nor there.)

Scott Greenfield complained about paper.li's use of content without attribution or the addition of anything meaningful. ("Rocket Doesn't Matter.") In response, Rocket Matter (whose daily prompted Scott's post) quickly commented, posted, and killed Rocket Matter's paper.li daily. ("Boy Did I Step into a Hornet's Nest with Paper.li.") Brian Inkster canvasses this activity, adds his own thoughts, and asks: "Should lawyers have their own Paper.li" (via Charon QC, who sums up my sentiments: "The *Seriously Sh*t Daily.Li* is OUT! – gawd help us…").

It's somewhat distressing that we even need to have this debate. I agree with Scott and Charon, and I'm surprised Brian even treats this one as a close question. (Read the comments to his post by the way.)

There are a few things that are wrong with paper.li:

1. faux curation: First, paper.li is billed as a "curator." Even if - unlike me - you don't think curators should be restricted to museums, or that curation is just an annoying buzzword du jour, paper.li is a terrible curator. Among other reasons, paper.li does not distinguish between positive and negative feedback. If someone in your stream mentions an article, it doesn't matter whether it's mentioned in a positive or negative light, it's signaled for inclusion into your "daily." As others have noted, this inclusion is attributed to you, and no commentary is added. I guess people can click through to the original tweet, but the daily itself omits any positive or negative feedback. Curation may or may not be on your list of top one million ideas for the new millenium, but paper.li is a terrible curator. (Not that algorithms make good curators to begin with, but that's a separate story. See "Rise of the Curators." If you're looking for a collection of tweets and stories from people in your stream that's presented in a nice, readable format, check out flipboard. I still prefer the serendipity of the twitter stream itself, but flipboard is a fun app.)

2. paper.li is spammy: Not only is paper.li a bad curator, paper.li is spammy. It may not fit within the conventional definition of spam, but this does not mean that it's not spammy. Its default settings are set to send out daily tweets with your "daily" - these tweets also mention the top "mentions," which are the people who get prominent billing in your daily. The sole currency of paper.li is people retweeting dailies because they are mentioned. (The bulk of traffic to paper.li dailies are from people who check to see whether their tweets are mentioned in the dailies.) I'm sure the traffic patterns to the dailies will verify this in a heartbeat. The fact that paper.li "publishers" send out daily tweets with links to their dailies - rather send out their dailies via email subscriptions or rss feeds - is telling. This is partially explained by paper.li's poor opt-in/default features, but the telling fact is that no one ever subscribes to a paper.li. You'd be hard pressed to find a paper.li with over 10 subscribers. A paper.li has a home on the web, but it does its dirty work on Twitter. "Publishers" send out tweets which reference people who are "mentioned" in the daily. And people who are mentioned blindly retweet these links. Brain Tannebaum captures everything that's wrong with this practice here. (As a side note, continuously letting people know via @twitter that you've mentioned them in a blog post or article is just bad form. Anyone with a pulse can figure it out for themselves, without you having to point it out. It's a growing pet peeve out there to see someone write an article and then follow it up with a series of -- "@johndoe, you've been mentioned in my blog post" - tweets.)

3. paper.li crosses the streams: A wise old social media guru once gave me four words of priceless social media wisdom: "don't cross the streams." Social media accounts should be kept largely separate. There's nothing wrong with cross-posting once in a while (or promoting your blog posts via Twitter or Facebook), but setting your accounts from one service to automatically post to another is a cardinal sin. Paper.li and its publishers violate this basic rule.

4. paper.li is an insult to newspapers: The newspaper industry is obviously going through cataclysmic shifts and has been over the past five to ten years, but it's a disrespect to newspapers everywhere to equate what paper.li puts out with even the smallest, dying, most irrelevant newspaper in the most obscure newspaper town. I'd take the Timbuktu Tribune over anyone's paper.li daily any day of the week. (Shockingly, the Guardian puts out the "Guardian Law" daily, which has a paltry 29 subscribers. Any newspaper publisher worth his or her salt would have killed this one a long time ago.)

__

So, if you fancy yourself a "publisher," and want to put out content that you have no control over and that's spammy, go for it. Set yourself up with a paper.li "daily."

Hotmail Updates

2011-02-07T16:55:00Z

Hotmail released a new feature I guess - temporary email addresses that you can use for things like "spam, lukewarm dates or evil deeds." Meanwhile, a British rapper (Dan Bull) released this Hotmail dis video that's pretty funny [via TNW; Seattle PI; Boing Boing]:

Google also has some fun at Microsoft's expense: http://www.hiybbprqag.com. [Marshall Kirkpatrick; John Paczkowski]

On a more useful note: "TigerText Service Allows for Temporary Text Messages That Delete Themselves." Also, there's a Farmville for Dummies coming out.

Tribes, and The Attention Marketing-Positivity Dynamic

2011-01-29T19:20:00Z

I've drafted and deleted several posts about Seth Godin. People I like and respect swear by him .. emphatically. I've had trouble digesting anything of his. It just never seemed that useful practically to me. He is a good marketer and businessman, and great at coming up with short posts that get you enthusiastic about doing stuff, but none of his writing ever resonated with me. But I think one of Godin's ideas is actually harmful: the so-called concept of the "tribe." I don't know if he came up with it, but he certainly popularized it (or is seen as having popularized it). (See, e.g., "Tribe Management.") As I understand this concept of the "tribe," companies and individuals are not supposed to market to their customers and prospective customers - instead they should connect with them personally, and build a circle of friends that they eventually will sell to. You're not really selling anything at this point, just recommending products or services (some of which happen to be your own) to your fellow tribesmen (or women). People have embraced this concept over the years and have built online tribes for themselves. Some helpful, and many (in my opinion) harmful. From what I see, the entire dynamic is harmful.

How do most people build tribes these days? In the old days, I imagine tribes were built or formed by necessity - your tribe is something that is marked out by nature that encompasses a group of people who endeavor to survive against the forces of nature. I wasn't around in the old days, but tribal life likely involved a fair amount of violence and force. In contrast to the tribes of old, the modern (online) tribe is not something that is characterized by violence. The modern tribe is built around positivity and enthusiasm, fueled by social media. You go out there and promote something you like - the chieftain of the tribe recognizes your promotion (and value to him or her) and voila, over time, you become a member of his or her tribe. (In the old days, people were battling for their limited piece of the survival pie - these days, we're battling for our piece of the attention pie.) What's the result of all this? A psychophantic cycle of online promotion. Another way of describing it would be a pyramid scheme built around attention marketing. (You promote my content or brand and I promote yours.) Geoff Livingston highlights this in a blog post that aptly captures the dynamic: "The Age of the Sycophant." It's tough to quantify something like this, but the emergence of actual business built around measuring influence (e.g., Klout) is to me a sure sign that there's probably a lot of this going on out there.

I've railed on the overabundance and excessiveness of online positivity here before. I am an avid user of Twitter, but one of my complaints about it is that it skews to thoughts and sentiments that are positive, and this may have negative consequences in the long run. (People are more positive than they are otherwise and positive about things they may not be off-line.) This positivity is a core ingredient in the online tribe's dynamic. What's the anecdote? Mike Cernovich has a very interesting post where he urges people to "Go Start a Fight." Mike flags the exact same dynamic that I'm seeing as the toxic ingredient in the mix:

People wake up wondering what nice things others have said about them. People actually Google their names on a daily basis! Mornings are made when someone has given us a virtual blow job.

Yet as a nation of druggie, we understand the unstated deal. The dealers dole out the good stuff to those who praise them. If you criticize others, you will not get the soma.

I am probably too peace-loving to take Cernovich's medicine, but he makes a great point and offers an intriguing solution to the problem. Either way, I'm convinced there's a problem, and that's the first step (as they say).

More on this topic from Scott Greenfield: "Because We're Not Really Friends."

CA Court of Appeals: State Spam Statute Imposes Strict Liability and is not Preempted by CAN-SPAM

2011-01-21T03:11:00Z

CAN-SPAM decisions over the years have been fairly unfriendly to plaintiffs, but one open question was the extent to which CAN-SPAM preempted state spam statutes. Lower courts, particularly in California, have been across the board on this. The California Court of Appeal recently issued a blockbuster of a decision in Hypertouch v. Valueclick.

The court held that CAN-SPAM does not preempt California's spam statute, even though the state's spam statute does not require plaintiffs to prove the elements of fraud. This means that plaintiffs can sue for emails that contain misleading subject lines, incorrect header information, or which are sent through domain names without the registrant's permission, all regardless of whether they can prove reliance and damages. Second, and even more important, the court held that companies whose products or services are advertised through non-compliant emails can be held liable, even if they didn't know or had no reason to know of the underlying violation - i.e., the statute imposes strict liability. This means that if a company contracts with someone else to market the company's product, even if the parties have an agreement in place that the marketing will comply with state and federal spam statutes (and even if the company spot checks the marketers work) the company can still be held liable for emails that are found to violate California's spam statute.

This is a pretty significant decision, which I'm sure will be appealed. We'll see what the State Supreme Court does with it if it decides to hear the case. I blogged in a bit more detail on the case at Professor Goldman's Technology & Marketing Law Blog (with comments from him as well): "CA Appeals Court: Claims Under State Spam Statute Not Preempted by CAN-SPAM."

Given the significance of this case, I can see companies or trade groups weighing in as amici on this case. They should certainly think about doing so.

Texting Fountain Lady Mulls Lawsuit

2011-01-20T19:25:00Z

I missed the video when it first came out but apparently a woman was walking while texting in a mall and fell into a fountain. She got up, brushed herself off, and went about her merry way . . . but the video of her texting while walking and falling into a fountain went viral (to the tune of 1.6 million views on Facebook and YouTube).

Mediaite reports that she's mulling her options and considering a lawsuit: "Fountain Lady Wants Revenge." My immediate reaction is: "she wants to bring even more ridicule on herself by suing?" But others pointed out that it may not have been proper for the security guards to release the video.

The only problem with the texting fountain lady is that she can't make up her mind as to what went wrong and why anyone should be held liable. Reading Eagle reports ("1 Step Leads Fountain Girl to Unwanted Fame") that one of her qualms is that the security guards were unprofessional and enjoyed a laugh at her expense, rather than helping her:

'My issue is I don't think security was professional because they didn't send anyone to check on me until 20 minutes later and I had already left,' Cathy said Wednesday in her first interview since the accident.

[via dlisted: "The Texting Fountain Lady Comes Out"] They didn't do the right thing, but their conduct hardly seems tortious. The mall/security company is investigating whether the release of the video violated any policy - I'm guessing they'll end up disciplining the security personnel involved.

As to her claim that the security guards improperly released the video, if you watch the video, you can't recognize her from it. Although the facts aren't clear, she seems to be the one that connected the dots between her and the video, by coming forward. She does state in one of her interviews that after the incident, a friend of her who watched the video called her to ask if she was OK. Apparently, the friend recognized the way she "walks"? (??)

We'll have to wait to see what happens, but her potential for a lawsuit is not looking so good right out of the gate.

Update: "texting fountain lady's problems bigger than YouTube fame."

Related: "Study Suggests There's a 'Texting While Walking' Epidemic"

Review: Typography for Lawyers

2011-01-14T15:38:00Z

Jason Wilson was kind enough to send me a review copy of Matthew Butterick's "Typography for Lawyers." Butterick - who runs a website also named Typography for Lawyers - has a visual-arts degree from Harvard and worked as a font designer and later a web-designer. He's now a lawyer who practices civil litigation in Los Angeles. His experience qualifies him to write this book.

TFL is full of helpful tips, ranging from the selection of appropriate fonts to spacing, sizing, the use of small caps (etc.). What makes the book incredibly useful is that Butterick:

explains his rules and suggestions;
talks about rules which are now outdated and why they developed the way they did; and
includes technical tips on how to implement his rules in various word processing programs.

You could literally open the book to any page, read for five minutes, and come away with some helpful information about typography and how it affects a document. You can then easily implement his rules and suggestions. The short book (216 pages, including the foreword and acknowledgments) covers just about every aspect of typography, and its thoroughness will seem daunting, even to those who are tuned in to typography and formatting. For example, here are the rules for text formatting that he covers:

Reading the book will cause most people to examine their basic formatting and typography practices that they have taken for granted their entire writing lives, and this is a very useful exercise. (Personally, I have focused much more on formatting than typography in the past. It will certainly take some time to implement the helpful suggestions from the book. Of course, typography is not something I pay much attention to when blogging, so don't bust my chops over poor typography practices when I write online.)

The book is not just useful for lawyers, but for drafters of all kinds of documents. It would make the perfect gift for the legal professional in your life. You can't go wrong if you are buying it for yourself. I highly recommend it. You can buy it at the Jones McClure website here or at Amazon here. At $25.00, it's a steal.

Other reviews: Scott Greenfield; Molly DiBianca; Ernie Svenson; Mark Bennett.

Added: Legal Geekery interviews Butterick in a podcast here: "Episode 21: Typography for Lawyers, CES, Searching Cell Phones, and More."

Related - The two space controversy: Farhad Manjoo in Slate pens a polemic on using two spaces after a period: "Why you should never, ever use two spaces after a period." Butterick of course has weighed in on this topic. Here is his take:

Some topics in this book will involve discretionary choices. Not this one.

Always put exactly one space between sentences.

Or more generally: put exactly one space after any punctuation.

There you have it!

Parties are not shy about splattering their spleens through cyberspace.

2011-01-14T02:41:00Z

An awesome line from a frustrated judge dealing with a contentious divorce case (footnote 23 in Bruni v. Bruni, 2010 ONSC 6568 (Nov. 29, 2010)) [pdf].

The rest of the footnote rings true as well:

In recent years, the evidence in family trials typically includes reams of text messages between the parties, helpfully laying bare their true characters. Asserting credibility is not nearly as difficult as it was before the use of e-mails and text messages became prolific. Parties are not shy about splattering their spleens through cyberspace.

(via Lowering the Bar) (Eric Goldman)

Loosely related: "Ex-BigLaw Partner Disbarred for Bogus Time Entries, Expensed Meals for Internet Dates":

Denti and the divorce client had both denied a sexual relationship, but flirtatious e-mails told a different story, according to the opinion. The document goes through a series of questions presented to Denti during the ethics hearing and his denials, including this question: “Let's talk about your e-mail. What are you talking about with a whole case of raincoats and using them all in one night?”

“I think I’m joking,” he replies, and then says it probably refers to the client's husband.

The emails and the explanation are a painful read - even funnier than the language quoted in the ABA Journal story is the fact that when asked about emails discussing soreness and fatigue from the evening before, Denti said it was because he or she had been using a new trampoline. "Three times," the questioner asked .. you used the trampoline "three times?" Oy.

[pdf].

Blog By Date - When is Something too Stale to Blog?

2011-01-11T17:06:00Z

A silly, menial, meta-question, I know, but the first sentence in this post by Ryan Gile brought it to mind.

UK Watchdog to Crack Down on Celebrity Tweets - Will the FTC Follow Suit?

2011-01-10T02:48:00Z

The celebrity Twittersphere is marginally interesting to me personally, but celebs seem to carry a fair amount of clout on Twitter and in the online space in general. It seems like celebrities are among the most followed (if not the most followed group on Twitter). They plug many products and services, and I often wonder whether there's any financial motivation behind these efforts. My instinct is that the answer is yes, and there has been some coverage on how much certain celebrities earn per Tweet. See these articles from Business Insider and SF Gate for some eye-popping figures: "How much celebrities and sport stars make per tweet" and "Startups cash in on Twitter with pay-per-Tweet."

The Daily Mail reports that UK's Office of Fair Trading (which seems like the US equivalent of the FTC) has ordered a crackdown on these celebrity tweets. (See "Stop Tweeting - or we will take you to court! Watchdog's crackdown on celebrities who plug products on Twitter" (via Leanne O'Donnell) and "Twitter endorsements face OFT clampdown".) The article asks around for comment on some of the products or services endorsed by these celebrities, and finds some instances of money (or discounts) changing hands - one involved Henry Holland and Range Rover:

Henry Holland (133,035 followers)
Range Rover
‘CAN’T WAIT FOR MY NEW RANGE ROVER . . .!!!!’ – November 24
‘It’s the dream! Waiting for me in the car park! – December 2

A Range Rover spokesman said their VIP scheme meant celebrities signed contracts ‘in return for them driving our cars.’ She added: ‘It’s not free...Under the terms of the deal they Tweet . . . ‘They Tweet about the car.’

Range Rover later told a different story, but its initial comment was interesting. Other celebs/products include:

Elizabeth Hurley (66,603 followers)
Estee Lauder

Peaches Geldof (97,919 followers)
The May Fair Hotel

Lily Allen (2,573,958 followers)
PlayStation and Grey Goose vodka

I wonder if the FTC will eventually crack down on this practice in the US. Obviously, under the FTC regulations promulgated last year, this is the type of thing that should come with a disclosure, and an endorsement without disclosure can subject both the celebrity and the company being endorsed to penalties. The sole crackdown to date under those regulations involved fake reviews for a game posted by a PR company. (See "FTC Dings PR Firm for Fake Reviews -- In re Reverb Communications.") I hadn't heard of either the PR company or the product it endorsed, and it seemed like an odd choice for an FTC poster child. It will be interesting to see what the FTC does with celebrity endorsements in 2011.

Loosely related: "Khloe Kardashian and Twitter Spam."

Also loosely related: "How 50 Cent Made $9M From One Weekend of Tweeting." I'm not suggesting there was anything improper with that 50 Cent did, but encouraging followers to invest through frequent tweeting and plugging (of a stock that you own) sounds like the type of thing that could raise some agency's eyebrows.

Portrait of a Lawyer Turned Anti-Spammer

2010-12-28T10:48:00Z

Ryan Burns of the North Coast Journal profiled Asis Internet, a long-time anti-spam crusader who ultimately closed up shop. (Previous post: "The Rise and Fall of a Spam Plaintiff.") The AP takes it turn on this topic, this time profiling Dan Balsam, a lawyer turned anti-spam crusader: "Man quits job, makes living suing e-mail spammers." (Balsam says the scourge of spam inspired him to go to law school.)

The AP's piece mentions the millions of dollars in judgments racked up by Balsam. However, it doesn't answer the critical question of what percentage of those judgments he actually collects on? Nor does the article mention Balsam's recent loss in the 9th Circuit, where he tried to hold a registrar and its privacy protection services liable for a million dollar judgment. (See "Domain Name Privacy Protection Services Not Liable for Failure to Disclose Identity of Alleged Spammer.")

In fact, this is something I've been curious about for a long time. Companies and individuals have been awarded millions in (often default) judgments against spammers. How much of these judgments have actually been realized? Inquiring minds want to know!

(h/t Eric Goldman)

In the Age of YouTube, there's no need to take my word for it

2010-12-18T18:33:00Z

In the Age of YouTube, there’s no need to take my word for it: There is a video of the incident that I’m “happy to allow . . . to speak for itself.” Scott v. Harris, 550 U.S. 372, 378 n.5 (2007); see www.youtube.com/watch?v=ZOssHWB6WBI (last visited Nov. 16, 2010) [no shortened URL?]. This video (also found in the record) clearly shows that Norse’s sieg heil was momentary and casual, causing no disruption whatsoever.

Interesting quote from Judge Kozinski in his 9th Cir. concurring opinion in Norse v. Santa Cruz.

(h/t Eric Goldman; see also Techdirt.)

ABA Journal Blawg 100 2010 - Recommendation No. 2 (Tech & Marketing Law Blog)

2010-12-18T18:28:00Z

My second recommendation for the ABA Journal Blawg 100 2010 - Eric Goldman's Technology & Marketing Law Blog.

Why? Because I guest blog there with some regularity, and Prof. Goldman has promised to double my pay if he wins. I'm kidding, even if he did double my pay, it would still be zero. Seriously, his blog has always been a go-to resource for those who follow tech. and marketing law developments. I was always amazed at his encyclopedic knowledge before I started posting over there, and I'd always exchanged emails with him on cases, but now I do so with some regularity, and I'm in awe of the volume of relevant material that must pass through his gmail and scribd accounts. In fact, one of the downsides of blogging over there is the sheer torrent of material that's available. I don't know how he does it, but he stays totally on top of ongoing cases. No (even loosely relevant) case passes by without him noticing.

How to Vote:

Register to vote here.

Cast your vote in the "Legal Tech." category here.

Bias alert: See above. Also, thanks to Ron Coleman for the kudos.

ABA Journal Blawg 100 2010 - Recommendation No. 1 (The Legal Satyricon)

2010-12-15T18:08:00Z

I wanted to take a moment to offer a vote recommendation for the ABA Journal Blawg 100. My blog-reading habits have changed over the years (like most people's), but one blog I have consistently read is The Legal Satyricon.

Why TLS? The Satyriconistas tackle a wide range of topics ranging from internet-related legal issues, to free speech, and politics, and my personal favorite - the wisdom of the laws and institutions of the fair state where its founder originally lived. Refreshingly, for a law blog, TLS's opinion is unabashed. (I said "tackle," they actually pummel topics.) Fear of how they will be perceived is not something that is even a remote consideration in their writing process. (This is not surprising, given the personality of its founder Marc Randazza.) Humor is a strong thread that runs through TLS posts. The photos and images are on point. They bash what deserves to be bashed and do it in a funny and unique way. At the end of the day, TLS embodies what blogging should be - opinionated, fearless, and funny.

How to Vote:

Register to vote here.

Vote in the IMHO (what?) category here.

This was not an easy recommendation to make. I have been a long-time reader of several other blogs on the list, including the always excellent Volokh Conspiracy. Charon QC publishes an excellent blog (and recently scored an interview with Julian Assange's lawyer). There's also Brian Tannebaum's blog (Brian plays a warm friendly lawyer on Twitter).

Bias Alert: I'm friends with Randazza.

NB: some posts have criticized the process behind (or around) the ABA 100 and they're worth a read in my opinion: "ABA Journal Blawg 100: Where the Hell Are the Womens' Blawgs?" (Niki Black) and "ABA Blawg 100: Death of the Beauty Pageant" (Scott Greenfield). That said, vote TLS!

David Kazzie Strikes Again - "So You Want to Close Your Facebook Account?"

2010-12-14T02:21:00Z

I'm in awe of David Kazzie. He's the man behind the breakout "So You Want to Go to Law School" video. Regardless of how you feel about his take on the practice of law, there's something really funny about the combination of his sarcastic and jaded script and the Xtranormal characters and scenes. (I personally liked the video.) His original video is almost at a million views on YouTube. (Here's a link to his YouTube channel and a link to his blog.)

I recently came across another funny YouTube video titled " So You Want to Write a Novel." After watching the video, I noticed that this was also by Kazzie, and it's also hilarious. This video also received a fair amount of attention. Here is yet another one from him, titled "So You Want to Close Your Facebook Account?":

This one is funny as well, and pokes fun at Facebook (or people's use of Facebook). I wonder if Kazzie plans to explore his Xtranormal writing skills as something more than a hobby? (Here's an interview at The Careerist with Kazzie: "Lawyer Behind the YouTube Hit.")

Either way, his stuff is funny. [I should also note that I'm a fan of Xtranormal, although I lack the talent to put it to good use.]

Father of Social Media Laments Lack of Klout

2010-12-07T17:01:00Z

Tragically, not an Onion story, but a true to life blog post: "Influencing Klout."

The gist of the post? I've written a book about social media and have had a lot of conversations about it, so why don't I have a higher Klout ("influence") score?

Oy.

[NB: one would think being a long-time player in the social media game, he would have picked up on the fact that texting while driving is not cool? No such luck.]

Crazy Story of the Week

2010-12-05T18:04:00Z

"Charles Manson had a cellphone?" (LA Times)

This raised (but didn't "beg") the obvious questions - who exactly was Manson calling, or texting? Was he surfing the web? Tweeting?

Records show that he made calls and send text messages to people in California, New Jersey, Florida and British Columbia.

One of the people Manson called released a recording of one of his rants: "Friend Releases Manson’s Cell Phone Rant From Prison."

News doesn't get much crazier or more bizarre than this.

Social Media and The Self Esteem Bubble

2010-12-03T19:23:00Z

Scott Greenfield has an interesting post about self esteem, and how the "self esteem movement" may not be all that it's cracked up to be. ("The Best Place to Find Self Esteem.") He notes that that "feeding your need for unwarranted high self-esteem won't produce Utopia." In fact, it could ultimately produce negative effects, and may ultimately be injurious to society.

Of course, what prompts the self esteem discussion is the internet - currently our favorite source for generating self esteem:

After all, isn't self-esteem what the internet is all about, allowing us to authentically engage with people of great accomplishment and talent despite our having nothing whatsoever to commend us? We're all worthy. Get a twit from your hero and you're just as important and heroic as anyone else, like a social media rock star.

What's interesting about this is that this is a relatively recent phenomenon. I don't have any claim for being an early active participant on the internet, but my anecdotal observations are that in the "early days," you could put yourself out there, but you were just as likely to be ripped to shreds as you were affirmed by the adoring masses (or by your "tribe"). In fact, one of the big benefits touted of the internet is that it is a gigantic merit-based system where the crowd functions as an adequate screening mechanism to separate the good ideas, arguments, and positions from the bad. You can put whatever you want out there, but chances are, someone else (somewhere) would cut it down to its appropriate size. Somewhere along the way, between GeoCities and Facebook, all of this changed.

What's changed? You guessed it. With interactions increasingly becoming social (i.e., attached to our "true" and "authentic" online personas), flattery and faux kudos are on the rise. In fact they are the norm. People compliment each other endlessly and mindlessly. The internet has become a giant self esteem pyramid scheme of sorts. [I have no idea what the precise cause is, but in my neck of the woods, increased use of social media by professionals as an overt branding tool definitely seems to contribute to this.]

All of this raises another point worth thinking about: apart from the negative effects of having people running out there with inflated senses of themselves, we may also be building a self esteem bubble. Should we be worried about what's going to happen when it bursts?

Related post: "Twitter and the Cult of Positivity."

Khloe Kardashian and Twitter Spam

2010-12-03T05:42:00Z

If there's ever a "what has my life come to" moment, searching on Twitter for "Kardashian" has got to be high (or low) on the list. Anyway, I found myself doing a search on Twitter for Kardashian, and I was surprised that I saw a few tweets coming from different people that had no links, but the exact same text. I did a search for the exact text and was surprised by what I saw:

It doesn't take an expert to spot the tell-tale signs. Generic sounding names with numbers all tweeting out the identical content. Looks like someone is trying to increase Ms. Kardashian's "relevance." (See "Google + Bing Confirm that Twitter/Facebook Influence SEO" [SEOmoz].)

As tragic as it was that I was doing a Twitter search for Kardashian, I was actually looking for an article that talked about her sister's pledge to stay off of social media in an effort to raise money for World AIDS Day and Keep a Child Alive (both laudable causes, no doubt). Her sister and other celebrities are staying "off-line" until people pledge 1 million dollars to these organizations, but as New York Magazine mentioned, the whole thing may backfire:

donations have been slim, topping out at just $160,000 this morning, which suggests that the celebrities may have to stay off Twitter far longer than intended.

I guess people are thinking they should give money to a charity (just not this one) and if the response is tepid enough, Kardashian may just stay off Twitter for good (or as long as she can hold out). [Crazily (in a sure sign that the apocalypse is near, or at least that things are not right and just in this world), Kardashian actually is paid to tweet: "Is she worth $10,000 per tweet? Kim Kardashian earns big money using her Twitter account to advertise to her 2 million fans."]

FBI Nabs Alleged Spam King in Vegas

2010-12-03T05:17:00Z

Ars Technica has the details of how the FBI nabbed someone who was allegedly behind the Mega-D botnet, which at one time was responsible for 32% of the world's spam:

So how did the FBI get its man this time around? By busting the US-based distributor of fake Rolex watches who used Mega-D to send a good chunk of his spam. That led them on a trail that culminated in ePassporte, a money transfer service, and they found Nikolaenka's name and e-mail addresses attached to his account.

Nikolaenko had made another mistake: the e-mail accounts were Gmail addresses, and it was no trouble at all for the US to get a subpoena, forcing Google to cough up the account information. FBI agents found copies of the botnet software and much else of interest among the e-mails.

With what they needed in hand, they waited—and it didn't take long for Nikolaenko to enter the US again at JFK. A few phone calls later and he was located at the Bellagio in Vegas. The FBI obtained and then executed an arrest warrant, and now Nikolaenko faces CAN-SPAM Act charges in, of all places, Milwaukee (where the FBI agent tracking him was located).

Ouch.

Some Fashion Advice From Spam Notes

2010-11-30T16:43:00Z

I don't have any delusions that I'm in a position to be doling out fashion advice. But there isn't even an alternate universe in which this makes fashion sense:

You would be better off throwing on a pair of pink UGG boots. [via BuzzFeed]

Texting, Tweeting, & Clutter

2010-11-26T04:51:00Z

A reader (whose last bill reflected 14,657 sent text messages) asks Unclutterer whether "texting [is] clutter:" ("Ask Unclutterer: Is Texting Clutter?")

Unclutterer offers a typically sober response:

Texting is certainly keeping you in touch with someone — friends, family, co-workers. And, if these people matter to you and keeping a close relationship with them is one of your priorities, then constant texting might not be clutter.

On the other hand, if texting is replacing a deeper relationship with these people, all the texting would be clutter. Additionally, it might be prohibiting you from focusing on people you’re with in the present, because you’re constantly looking at your phone.

Assuming it takes you on average 30 seconds to send a text, you spent a little more than 122 hours last month texting. If there are 720 hours per month, and you slept for 240 of those, you were probably awake about 480 hours last month. So, if you were writing texts 122 of 480 hours, about a quarter of your waking time was spent sending texts. And, since this doesn’t include reading texts from people who write back to you or thinking about your response, it’s possible texting is consuming half your waking life. [emphasis added]

I'm thinking I should submit a question to the Unclutterer, and ask about my 11,200! (and counting) tweets. On the other hand, maybe I'd rather not see a response which provides a rough accounting of my time spent tweeting?

Loosely related: Jonathan Fields asks: "Is Twitter the Ultimate Creation Killer?"

Food for thought.

A Law Blogging FAQ

2010-11-24T18:06:00Z

I resolved not to blog about blogging, but there's something about this topic that sucks me (and many other bloggers) in! Anyway, I was chatting with a young lawyer who was thinking about starting a blog recently, and the lawyer and I tossed around a few questions. Some of the answers to the questions seemed practical in nature, so I thought I would list those and other questions that seem to recur for law bloggers. (The standard caveat that no one-size-fits-all approach applies. You shouldn't take this as any sort of expert advice obviously. This is just based on my personal experience and on conversations with other law bloggers.)

1. Where's the best place to get material?

For me, the best place is Lexis alerts. I have alerts set up that perform daily searches and email me when a case is issued that fits those criteria. Any time a case mentions the word "spam" (or CAN-SPAM), or "Facebook" for example, I receive a copy of the case by email.

Apart from this, there are a couple of other sources for subject ideas: (1) other blogs (obviously) and (2) newspaper articles. I also check PACER frequently, and court websites. (Some court websites have RSS feeds set up which can be a convenient thing. The cost of PACER is negligible. Also, RECAP is a nice service that makes PACER documents available for free, but only documents which have been previously accessed by someone who also uses RECAP are available.) In the early days, I used to use Courthouse News Service (a subscription service that emails you a daily list of newly filed cases and summaries from selected jurisdictions), which I found to be an invaluable resource. Finally, people on occasion will email me stuff, and over the years, this has grown as a useful source for material. By far, the three best places for material are: Lexis alerts, Pacer, and emails from other people. All bloggers are different in this regard, and I think it would be useful to take in opinions from other bloggers about their practices.

[Sidenote: Lexis alerts and Westlaw alerts vary significantly. They both seem useful, but different cases come up for the same searches in both, and some cases show up on Lexis alerts but not on Westlaw (and vice versa). Also, Pacer should really set up an alerts system, or allow you to sign up to receive email notifications even if you are not involved in a case. It's something I would pay for.]

2. Blogging on a schedule?

Many bloggers have posting schedules. My view is that whatever gets you to post consistently is the way to go, but as far as writing goes, I write when inspired. I've blogged on vacation, while waiting at the airport, etc. I could never blog on a blogging schedule, but then again, some would say that my consistency reflects this.

3. Blogging about cases you're involved in?

I think it's a bad idea to blog about cases you're involved in. Some people (e.g., Randazza) do it well (mostly after the fact), but for me it's just too much of a hassle. You have to be ultra careful about revealing something that's going to come back to haunt you. (See generally, "Too Much Information: Blogging about your client's case.") You can't really give the backstory, which pretty much takes all the fun out of blogging the case. Finally - and this is something people don't consider - you should always get your client's approval before making a public statement about an ongoing case. Information travels in strange ways online, and even if you take a particular stance on a case, there's no guarantee that another blogger will do the same. Also, some clients are more interested in controlling (or trying to control) publicity around cases. You never want to have a situation where the client is unhappy about media attention that is paid to a case, and it turns out that you were one of the first few bloggers to have shined the light on the case in the first place.

I've had three or four cases that received some attention in other blogs, but I didn't blog about them. It would have been too much of a hassle.

4. How to deal with takedown requests?

Anyone who blogs will likely receive a takedown request at some point, and if you blog about cases or ongoing controversies, it's likely that you'll receive more than one. I'm not taking about DMCA takedown requests, requesting you to takedown copyrighted material. I'm taking about the request that's along the lines of "you wrote something unflattering about me, would you mind taking it down," or "you have deliberately lied and mischaracterized my involvement in a case, if you don't takedown what you said about me, I'm going to sue you IMMEDIATELY."

Unless there's a public interest at stake, I'm not interested in fighting the battle with people who are disgruntled because I've mentioned them on the blog. I have complied with one or two takedown requests. My reason (again) is that it's not worth the hassle. I don't think I've ever altered an entry at the request of someone (unless the entry was inaccurate). I also received a cease and desist letter that was so outlandish that I just ignored it.

Something that helps when blogging about cases is to characterize the facts as the court characterizes them (and to quote the court's order or opinion). My instinct is that you cannot be held liable for defamation if you accurately report something a court said, but I'm guessing there are some nuances and outliers there. However, I know it's enough of a hot button issue that one or more public interest groups would likely come to your aid if someone tried to sue you for a statement that accurately characterized a court's view of a case. Along these lines, Citizen Media and EFF (and others) make available excellent resources for bloggers. To the extent you're looking to find out more information on issues such as fair use and defamation, check out those resources.

5. How about posting logos and photos?

I would treat logos and photos slightly differently. When I'm talking about a company in a post I sometimes include their logo. (I go to their website and grab their logo.) This is pretty clearly fair use. Photos on the other hand I don't reproduce on the blog. Sometimes I go to flickr and do a creative commons search. Other times I email the copyright owner and ask for permission. I don't get too bogged down including images in blog posts, although the conventional wisdom probably says that an image enhances the readability of the post.

6. Making available source documents.

In my opinion, it's extremely valuable to make available source documents (briefs, opinions, etc.). If anyone disputes my take on a case, this allows them to easily access the court order and see for themselves whether I'm right or wrong. Most blogging platforms allow you to upload files pretty easily. For the past 8-9 months I've been using Scribd, and although I'm ticked off that they took an opt-out approach to making archived documents available behind a paywall, I still continue to use the service. (I typically post the version issued by the court (the official version), and not the version from Lexis. I'm guessing Lexis has better things to do than to worry about whether I'm improperly posting Lexis material (and I probably have a viable fair use argument), but it's not worth the hassle to worry about this.)

Either way, many people have commented that they find it extremely helpful when bloggers make source documents available. I personally find it mildly annoying when people post about a case and do not post the source documents (such as the court's opinion) or a link to these documents.

7. Worrying about people relying on the blog for legal advice - what about a disclaimer?

I think this concern is largely overblown, but I have a simple disclaimer that says "nothing on the blog is legal advice." I do receive solicitations through the blog once in a while, but I make it clear that my response to a random email should not be interpreted to mean that I'm now representing someone just because I responded to their email.

8. Metrics - what measuring blog traffic?

I'm not really into metrics. GoDaddy's platform makes available a pretty rudimentary system that lets you know where your visitors are coming from and who is linking to you. I also use Topsy to see what Twitter activity a post generates. I'm not a huge fan of using metrics as a way to tweak your writing style (or subject matter), but many people swear by this. I do think it's useful to see who is linking to your blog. (I used to be much better about interacting with people who link to the blog, or even acknowledging the link, but I've grown pretty lax in this department.)

9. Blogging Platforms/Software?

I don't have much to say about this, except that I started with GoDaddy and didn't think much about it. Several years later, I've been thinking about switching and this is much (much) easier said than done. I have also tried to blog using the iPad but there must be some super-secret decoder ring that you have to acquire before being able to use the iPad for even the most rudimentary blogging. Suffice it to say that I have yet to acquire it.

10. Dealing with the press?

Law blogging will not land you on the cover of Time magazine, but it may result in some press inquiries, particularly if you are consistent and blog about ongoing cases. One of the fun aspects of blogging is following and interacting with journalists in your space. I don't have any special tips for dealing with journalists, except that you should treat them almost like a prospective client, or a professional contact. Be responsive (they're often on deadline), helpful, and professional.

11. How about dealing with content scrapers?

Over the years, I've come across a few people who scraped content (multiple posts taken verbatim). A simple cease and desist letter (or DMCA takedown request) solved the problem.
__

I also came across this detailed "first 30 days of blogging" report by Keith Lee that looks pretty interesting [pdf]: "A Complete Analysis of the First 30 Days of a New Legal Blogger."

Taking Cell Phone Etiquette to the Next Level

2010-11-18T23:07:00Z

The question of whether you should answer your phone while you are out should probably have an obvious answer, but (for better or worse) cell phone etiquette questions continue to plague our society. Gizmodo posts about a nifty product that lets you loudly proclaim that you will not answer your phone during an outing . . . while at the same time blocking the phone signal, lest you should be tempted to even look at your messages.

How nifty . . . it's a cell phone kerchief (a "PHONEKERCHIEF")!

[Via Gizmodo; Book of Joe; Gadget Review]

NB: Etiquette 2.0 enthusiasts may be interested in this post at Slate by Emily Yoffe (aka "Prudie"): "Prudie counsels a reader who gave a thoughtful gift and received online gripes in return."

A Topic That Refuses to Die - What Drives the Law Blogger?

2010-11-17T23:18:00Z

The "why" of law blogging has spawned lots (and lots) of commentary. You would think everything that could be said about it will already have been said, but that's not the case. Via Max Kennerly I came across Gretchen Sween's piece in the Texas State Bar Section of Litigation's News for the Bar: [pdf; pp. 7-9] "If a Blawgger Blawgs in the Forest and No one Hears ...," along with Blawgletter®'s follow up thoughts ("Blawgging for Peanuts"). Both are worth checking out.

Sween looks at the many challenges in blogging (or law blogging specifically) and asks why "so many lawyers, while tending to busy practices, elect[] to shoulder the burden of a regular, extracurricular, pro bono writing obligation?" Despite the many challenges associated with law blogs, she notes that law blogs are "proliferating at a rate ordinarily associated with fruit flies." [I sense a slight pejorative tone here (fruit fly proliferation is not exactly a good thing), not that there's anything wrong with this.] Ultimately, she concludes that law blogging may be useful for a reason other than revenue-generation: it makes you a better lawyer.

Sween's article is worth reading, as is Blawgletter®'s follow up post. A key bit:

Almost no one tracks the economic plus side of blawgging. We'd guess the track-lack happens either because the aspiring tracker can't figure out how to do it in a reliable way or because he or she doesn't really want to know the answer.

Sometimes you can tie a contact directly to a blawg post or to the blawg more generally -- as when someone emails you about a post and invites a response. But what value does such a contact produce? A chance to look at a case counts for something. surely. But unless the look results in retention and the retention generates a fee, you can't assign to the post, or the blawg, a dollar value.

What about indirect results? What if a subscriber knows you already and, at the moment he or she needs the kind of legal help you provide, reads an on-point post you've just written -- and calls you? Or a potential client looking for a lawyer reads your web profile, clicks on the link to your blawg, confirms a positive image of you -- and asks for a meeting? Those should count, of course. But imagine the challenges of putting an economic value on the part the blawg played.

The dollars and cents analysis of the cost side, on the other hand, goes much easier. Multiply the number of your posts by the average time you spent writing them and multiply the result by your hourly rate, and -- presto -- you have a good idea of what you've invested.

No wonder no one can say whether a blawg pays for itself.

I can't disagree with either of them, but I thought one point was worth noting. When people talk about the efficacy of law blogs, people typically cite to the experiences of other lawyers - e.g., "what law blogs do my lawyer friends read?" No one ever thinks to survey the clients. Also, the blogging lawyers never seem to track the relationship between client development and blogging. (It's no surprise, for the reasons noted in the post linked above.) The only (meager) efforts in this regard have been by the marketers and practice consultants.

I'll also add two more reasons to why people blog. First, because it's fun. Bloggers are an opinionated crowd, and we like to get our opinions out there. Second, lawyers are creatures of affirmation. We live and die by the proverbial pats on the head, or by knowing we've gotten the better of someone's argument. For better or worse, these are rewards in themselves. A third reason may be to contribute to the "collective consciousness," but I don't have any delusions that I have the necessary altruistic instincts for this to be a legitimate reason.

Finally, I'll agree with both of them on the core point. Revenue isn't even on my list of reasons of why to blog. Your mileage may vary, and I'm no "rainmaker consultant," but the fact that no one has coherently put forth any data on what blogs clients read, or anything persuasive on the relationship between blogging and revenue should tell you all you need to know. An even more compelling metric for me (and I've said this before) is that when I sit down and tally the hours spent blogging, I can't even think about doing the cost/benefit. It's easily 3 or 4 vacations worth. And I take my vacations seriously.

Added: The Trial Warrior comments (and adds some other reasons) here: "Why Bother Blawging?" (And thanks also to Lance Godard for the link.)

Loosely related:

ATL: "Above the Law Launches a New Column for In-House Counsel" (Mark Hermann has "been out of blogging for nearly a year, and . . . was starting to suffer withdrawal symptoms.")

Paris Review: "What Bloggers Owe Montaigne"

The Atlantic: "I am a Blogger No Longer" (Marc Ambinder) ("Blogging is an ego-intensive process. Even in straight news stories, the format always requires you to put yourself into narrative.")

A Personal Landing Page (About.me)

2010-11-17T16:25:00Z

Several few months ago, I blogged about my thoughts around shutting down this blog, since I started blogging over at Professor Goldman's Technology & Marketing Law Blog. In that post, I mentioned that I still wanted to have my own online presence and that it would be nice to have a landing page - i.e., "a single spot . . . where you should aggregate your professional online activities." ("Should I Make a "Clean Break" With the Blog? -- Looking for a Little Help From Readers.")

So, eight months later, I still have not answered the question from my post. I'm blogging regularly at Eric Goldman's blog, and enjoying it a lot (more on this later). I don't like to cross-post what I post there here, so I've ended up posting content here that is more peripheral to the legal stuff that I blog about, or stuff that is more opinionated. However, I did come across a service that was along the lines of what I mentioned in my post about 8 months ago: About.me. My prayers have been answered! Here's a link to my About.me profile.

Seriously, it doesn't do everything I hoped. It pulls in feeds only from select services, and only allows you to add a limited amount of content. You could put together a page like this on your own fairly easily (without the service) and I've seen many people aggregate their on-line activities on one page. (Here's one good example I recently came across.)

It offers analytics, which is nice, but something you could pretty easily accomplish on your own as well, through using services like Google analytics. I'd love to be able to add links from the week's posts, and other tidbits, without having to manually enter in this information. I do know that it makes it easier for people to contact me. Since I've started using it, I've received several emails (through its "email" feature) from people trying to contact me. I've seen a few other lawyers I follow use it to put together their own pages as well. (See, for example: Lisa McGrath; Bruce Carton.)

Will people pay for it? Will it survive and thrive? I don't know, but it's a nice service.

Rise of the Curators?

2010-11-11T20:58:00Z

I would consider myself among the group of people who think that curators only belong in museums. For example, I cringed when I read this New York Times article: "The Word 'Curate' no Longer Belongs to the Museum Crowd." This may sound strange, coming from a blogger, but I was pretty slow to warm to the concept of content-curation. The idea that we'll all be curators of some sort in the long run always seemed really far-fetched, or even scary, to me. There's also this notion of curation that's crowd-sourced (e.g., Digg) or algorithm-based (e.g., Feedly; Google), and I'm even more skeptical that this will appeal to me, other than as a source of quick-fix entertainment, if that. The whole idea of networks (or friends in networks) recommending stuff that I might like seems to only work within pretty specific zones of interest. For example, I may follow a law blogger and chances are good that other law-related blogs they read will be of interest to me, but the minute we move to a different topic such as food (for example), the recommendations start to get less useful, very quickly. I'm still pretty lukewarm on the whole concept of algorithm-based "friend recommendations," but maybe that's just me. Maybe the algorithms are not at the point where they are very effective? I'm sure much tweaking will happen or is already happening in this world.

At any rate, I've come across a group of content curators over the past six months who I've come to rely on more and more in the course of my general interest reading, and they all seem to be human-driven. These include:

Give Me Something To Read (@somethingtoread);
Brain Pickings (@brainpicker - who spends 200 hours per month curating!);
Arts and Letters Daily (it's been around forever, but I only came across it a year or so ago);
Longreads (@longreads);
longform.org (@longformorg); and
The Browser (@TheBrowser).

Most of these sources highlight longer pieces (so-called "Long Form Content"). I'm not sure what the definition is for this, but in my book it's something that takes about 10 minutes or so to read. Something much longer than a blog post or a newspaper article. Something more along the lines of an in-depth article in Harper's Magazine or the Atlantic. Of the ones mentioned above, The Browser is probably my favorite, but they are all good.

I wonder what the future holds in store for these sites? None of them really have standout iPad apps (that I know of), but if they did, I would certainly rely on them for my iPad surfing. (For what it's worth, I've tried Flipboard, and I can't say I'm a huge fan.) I also wonder if there's room in the crowd-sourced space for a site that focuses on longer articles. I'm thinking of a site that ranks articles but has certain limitations, most importantly, a requirement that the article has to be a certain length in order to be included (maybe with a limited pool of sources). I'd love a Digg that just offers up articles that take at least 10 minutes to read.

Either way, I thought I would mention the ones I've come across that I've been relying on lately. Also, Twitter remains a pretty reliable source of content, but more useful for news and short articles.

Self-Described Quora for Legal Launches

2010-11-09T05:31:00Z

TechCrunch reports that LawPivot - which describes itself as a Quora for legal - recently launched. The "founders/execs are all attorneys with tech experience." (TechCrunch: "LawPivot Closes Angel Round For Quora-Like Startup Legal Advice.") [Note: the link to LawPivot wasn't working when I posted this. Maybe they weren't ready for all the traffic that a TechCrunch link brings?]

Are they harbingers of the long-awaited Susskindian revolution? As described by TechCrunch, the site will allow "companies to confidentially ask legal questions to expert attorneys." Will companies flock to the site in droves, abandoning traditional channels of finding their lawyers? Will lawyers now freely offer advice and compete for business in a forum where clients can more effectively evaluate their expertise and pricing? The core service offered by LawPivot sounds similar to one that an existing site already offers: Avvo's Answers. One point of differentiation between the two is that LawPivot seems to be aimed at technology companies in particular. Will young tech. companies abandon their habit of working with law firms recommended by their investors and venture capitalists?

I have no idea, but it's interesting to see how what I'm sure will not be the sole entrant into the space does. I'm not very familiar with it, but LegalRiver sounds somewhat similar as well. On a vaguely related note, I signed up for Quora but I haven't tried it. (By the time I get around to trying it, it will probably over-run with marketers and advertisers, but that's neither here nor there.) Also, any time I hear a service described as an [existing online service] for a [specific demographic], the bubble alarms start to go off in my head. I'm sure some of these companies will thrive and survive, but when you hear about things like a foursquare for beer lovers and one for food lovers, you start to wonder if companies are putting too much energy into building a service geared towards a particular demographic, when the service as a whole hasn't been proven to be viable from a business standpoint in the first place. Who knows, maybe this space is different, or maybe I'm wrong on all counts. There's certainly plenty of room for technology to allow consumers to be [further] empowered vis a vis the legal profession.

One point about LawPivot that I thought was interesting was that the advice offered through the site will not be publicly visible. I don't remember where I read this but someone argued that one of the problems of crowd-sourcing is being influenced by the answers of others, and making the crowd's answers not visible is one way to address one of the problems of crowd-sourcing. Also, as TechCrunch mentions, since the discussion is not made public, there is little or no opportunity for the SEO play. TechCrunch views this as a downside, but I think this may be a good thing in the long run.

Added: comments from Jay Parkhill:

I am registered on Law Pivot though I have not gotten any questions yet. It is really a lead gen site for lawyers more than a quora/vark "find public answers" site. Potential clients can ask questions, the site finds what it thinks are appropriate lawyers to respond, and then the client can choose among several possible lawyers to do the work based on their responses.

Also, looks like Justia Legal Answers just launched.

Rick Sanchez Keeps Twitter Account

2010-11-08T15:12:00Z

I blogged about the issues raised by the departing employee who has a Twitter account that may have some value ("Can a Departing Employee Take Her Twitter Account With Her?"). A quick update to the post - it looks like Sanchez did get to keep his Twitter account after all. (h/t TweetSmarter)

Center Network reports:

about a week ago, the @ricksanchezcnn account was moved to a new Twitter account, @ricksancheznews. Based on his counts, it looks like everything was transferred over to the new account. The old Twitter account points to the new account although I am unsure who “owns” the @ricksanchezcnn account at this time. Sanchez does appear to be actively using the new Twitter account. It’s a good deal for Sanchez as he gets to start with a Twitter account with a base of followers rather than starting from scratch.

There you have it. I still think the scenario raises some gray area issues that are best addressed by contractual provisions, but it's interesting to see how things played out in this case.

Legal Rebels Boycott Twitter

2010-11-02T21:32:00Z

Scott Greenfield takes a step back from Twitter and critically evaluates his Twitter experience: "No Signs of Intelligent Life on Twitter." Brian Tannebaum does the same: "Twitter - Still The Worst Place To Find A (Real) Lawyer."

I've posted before on the overdose of positive sentiments that Twitter seems to engender ("Twitter and the cult of positivity"). Not only do people not seem to take a critical look at much on Twitter, people seem to not want to take a critical look at Twitter itself or their own experiences with Twitter. This is partially explained by the fact that people supposedly respond well to positive feedback and kudos on Twitter. Since most people are concerned with follower counts and perception, this naturally leads everyone to say positive things on Twitter, including about their Twitter experience. This is not to say that people don't say critical things about Twitter, but much of this comes from people who haven't really used Twitter or who have dabbled, and who as a result prompt the predictable criticisms in response. (See, e.g., "Malcolm Gladwell Doesn’t Get Twitter (Because He Doesn’t Use It).") However, at 10,000 Tweets in Scott's case and 18,000 in Brian's case, it's tough to dismiss their posts as the criticisms of outsiders or dabblers. (Someone criticized Scott's post because Scott does not follow many people on Twitter, and this was the reason why Scott was down on Twitter. Sure, Scott doesn't follow many people on Twitter, but being the uber-technologist that he is, he did put tools like Tweetdeck to use, so he was keeping track of discussions.)

I've seen a few other posts about the "hype" surrounding the legal profession's use of social media, coming from some interesting quarters. Ron Friedmann posts on a conference where Steve Matthews and Tim Corcoran (both established and credible legal marketing types) talked about whether social media for law firms was "over hyped" ("Social Media - the Ultimate Business Development Tool or a Huge Waste of Time"):

Is Social Media Over-Hyped?

Steve Matthews

- Lots of press, but that does not equate to value. So yes, it’s over-hyped.
- Tendency in S/M to create an audience without having a clear message
- Quantifying S/M is hard. Followers is not necessarily a good metric. More followers does not equal bigger share of voice.
- But if your existing contacts and sources of biz are online, you should nurture those connections in S/M

Tim Corcoran

- Yes, over-hyped. Equivalent of an echo chamber
- It’s a tactic, not a strategy. You need a strategy first; S/M may be a good tactic to reach audience.

My purpose is not to inspire another round of discussion of whether it is overly hyped. Hopefully the profession can figure out for itself the answer to this question over time. Setting the hype issue aside, I think it's equally important (if not more so) to focus on whether there are any other downsides to adoption of this new tool, either on an individual level or a profession-wide level. At the very least, I think it's worth asking yourself this question. I also think it's worth noting that this sentiment is trickling around, and that credible people in the industry who are using the tool are voicing concerns about it (or more precisely, the profession's use of it). You would think this would be newsworthy, right? Although I must confess that I'm not a voracious reader of the legal press, I haven't seen much mention of this anywhere. This is not surprising, given my thoughts above on our reluctance to criticize Twitter, and the fact that much of the legal press has itself flocked to Twitter in droves. Meanwhile, people continue to churn out articles like this one: "How Lawyers May Use Social Media in the Future" and this one: "Tweet disposition - the tech-savvy lawyers making social media work for them." A note to anyone writing an article such as these: talk to Brian or Scott, or someone like them. Your credibility will go up like a zillion-fold if your article includes a comment from one of them, or from anyone who says anything negative at all about the legal profession's experience on Twitter. (The effect of Twitter on the media and the downsides of widespread embrace of this medium by journalists is an interesting topic as well. Although this topic is well above my pay-grade, and outside my realm of experience, I hope to post on this later.)

Back to Scott’s and Brian's posts. Both are worth reading and giving serious consideration.

Added: no sooner than when I hit publish on this post did I see this piece in the ABA Journal by Paul Lippe: "Should Lawyers Tweet." My reaction to this is the same as my reaction to the other articles linked above.

[I'm still a pretty avid user of Twitter. I think it's fun and a great way to keep abreast of developments in the space and connect with people. I should note that for me personally, among other downsides, it has tended to sap my blogging energy. More on that later!]

Update/correction: I chatted with Scott Greenfield and it turns out my characterization of a supposed "boycott" was inaccurate. Mea culpa!

Anatomy of a Misfired Direct Message

2010-10-17T06:27:00Z

There have been enough direct message snafus over Twitter's short lifespan that an instance of a misfired direct message revealing private (newsworthy) information is not exactly news. (For people who don't use Twitter, think of it as an email that is inadvertently sent to the wrong group of people, with a huge list of potential forwards.) Recently ESPN's "Sports Guy" tweeted "moss Vikings," and in the process unwittingly "broke" the store of Randy Moss's trade to the Vikings ("Accidental Tweet Breaks Huge NFL Story"). Again, the direct message snafu isn't exactly earth-shattering news, because it happens so often. (Another recent example here.)

However, Bill Simmons (the guy who sent the direct message in question) wrote a column about his particular misfired direct message that's a great read. His column ("The case of the accidental tweeter") describes in detail how the direct message misfired. Also, the column contains his thoughts on when he puts out breaking news on Twitter, ESPN's policy on tweets, how he often sends tips to fellow journalists, how he deals with sources, how people react to certain Tweets depending on what sort of spin he puts on them, and a whole bunch of other very interesting topics:

Whenever I stumble into relevant information -- it doesn't happen that often -- my first goal is always to assimilate that material into my column (as long as it's not time-sensitive). Sometimes I redirect the information to an ESPN colleague. Sometimes I keep it in my back pocket and wait for more details. It's a delicate balance. I have never totally figured out what to do.

...

Complicating matters: Twitter, which exacerbates the demands of immediacy, blurs the line between reporting and postulating, and forces writers to chase too many bum steers. With every media company unabashedly playing the "We Had It First!" game, reporters' salary and credibility hinges directly on how many stories they break. That entices reporters to become enslaved to certain sources (almost always agents or general managers), push transparent agendas (almost always from those same agents or GMs) and "break" news before there's anything to officially break. It also swings the source/reporter dynamic heavily toward the source. Take care of me and I will take care of you.

...

In the Twitter era, we see writers repeatedly toss out nuggets of information without taking full ownership. It's my least favorite thing about Twitter (because it's wishy-washy) and one of my favorite things about Twitter (because nonstop conjecture is so much fun for sports fans). We saw it happen during the LeBron saga, the baseball trade deadline, Favre's latest round of "I Might Come Back" … it's just part of following sports in 2010. Call it "pseudo-reporting": telling your audience that you think something happened or that you heard something happened, and somehow that sentiment becomes actual news.

You know what jerk pulled this trick last winter? Me!

I did it with this Dec. 10 tweet: "Hearing that Tom Brady jogged off field after first Miami TD because he broke ribs (plural). Came back wearing a flak jacket."

Hearing that … ?

Is that a report? (Not really.) Am I passing along a rumor? (Actually, no -- a good source gave me that one.) Was there a way I could have sounded more authoritative? (Yeah, probably … but wouldn't it look weird if I wrote "Exclusive report!" or "Breaking news by me!") Did I drop the ball? (Actually, yes. Everyone ignored the information because it seemed like I threw it out there. Brady played with broken ribs for two more weeks before anyone officially reported it.) In retrospect, I should have just presented the tweet more forcefully. With our current social media rules, ESPN would want it to look like this …

"JUST FILED TO ESPN: Tom Brady jogged off field after first Miami TD because he broke multiple ribs. Came back wearing a flak jacket. Confirmed by a source."

… and only after I called my editor, Rob King, and told him, "I trust my source, this is accurate, I am going to tweet it, I wanted to give the desk a heads-up." If Rob tells me, "Don't tweet that, I want to talk to you first" or "You have to get a second source or no go," I would hold off. Because that's what ESPN employees are supposed to do.

Simmons has a great writing style. I'm neither a sports fan nor a journalist, but by the end of the article, I was dying to know more about the details of his world.

Also: there have been many articles saying third party apps can access your direct messages. I have no idea whether or not this is true. I proceed on the assumption that contents of a direct message can be exposed, or that my message may suffer the same fate as Simmons's, minus the public interest of course. In any event, here is one such article: "Twitter Exploit Warning - How Anyone Can Easily Snatch Your Direct Messages."

[As a sidenote, does ESPN's "tweet approval policy" seem cumbersome, or what?]

Punctuation Wars

2010-10-07T18:19:00Z

One grammar rule that has plagued me forever is whether to put the punctuation inside quotation marks when you quote a single word (or even a two word phrase). I follow the American rule on punctuation - i.e., put punctuation inside quotation marks, but this has always looked awkward when you are just quoting a single word.

Scott Greenfield posted about this a couple of weeks back: "Bleg: End The Comma War (Update)." [It also feels awkward to put the period inside the quote here, since the period is not part of the original punctuation and was added by me, but that's neither here nor there. Also, the punctuation that always throws me off is not the comma, which rightly or wrongly I always put inside the quote, but the period. What throws me off even worse is the question mark which is not part of the original quote. The question mark inside the quote seems particularly awkward.]

Some highlights:

Max Kennerly advises us to look to what courts do and follow their convention.
Mark Bennett suggests a different rule for single quotes than for double quotes.
Marilou: putting the period outside the quotes is like "running around with a malfunctioning zipper."

Both the post and comments are worth reading.

On a loosely related note, many people have recommended "Typography for Lawyers," which receives a mention in the comments. A worthwhile and useful looking project in my opinion. I wish someone would come up with a "use of headings" website. Headings are the unsung heroes and heroines of legal writing, and often underutilized.

Can a Departing Employee Take Her Twitter Account With Her?

2010-10-03T17:02:00Z

CNN anchor Rich Sanchez was recently fired for some comments he made. Marshall Kirkpatrick (at ReadWriteWeb) asks the question of what happens to his Twitter account: "CNN's Social Media Pioneer Gets Fired: What Happens to Rick Sanchez on Twitter?" An employee's Twitter account may or may not be worth much, depending on who you ask, but Sanchez's departure presents an interesting set of questions.

As highlighted by Kirkpatrick:

Does Sanchez own his Twitter account or does CNN? Ought he be required to remove the reference to CNN from his name? Should he do so before or after making some public statement about being fired?

Good questions. My off-the-cuff two cents:

Most employment agreements have clauses which assign intellectual property that is generated or created by the employee (during the term) to the employer. Copyrighted materials, patents (etc.) generally fit the bill, but someone's Twitter followers or Twitter handle don't obviously fall into these categories. (The Tweets themselves are probably partially owned by CNN, although this could be complicated by the fact that Sanchez may have mixed in 'personal' tweets and 'professional' tweets, and probably did at least some of the tweeting on his own time. Nevertheless, this is likely the least valuable part of his Twitter account so this is less interesting of a question.)

Sanchez would argue (using an off-line analogy) that if he built up a fan-base as a result of his popularity, he's not required to turn over his "fans" to his employer. CNN would argue that he gained these followers by exploiting the CNN brand and by using company resources. Including CNN in the Twitter handle (and promotion that the account may have received through CNN or related to CNN) are things that complicate the issue and potentially weigh in CNN's favor. Who knows, CNN may have paid to promote Sanchez's Twitter account? It's tough to come up with a good analogy, but Sanchez's position sounds like the better of the two to me.

With respect to the issue of whether he would have to remove the CNN from his Twitter handle. I think he'd have a tough time arguing that he should be able to leave it as is, and as a practical matter, he probably does not want to anyway. That said, I'm not sure what cause of action CNN would assert. Dilution? Tarnishment? Unfair competition? (As a sidenote, here's a post that talks about what happens when you change your Twitter name: "How To Change Your Twitter Name Without Losing Followers." Although I've been often advised to change and shorten my Twitter handle (@VBalasubramani) I have no plans for doing so - unfortunately, I can't personally attest to the accuracy of the post.)

__

The fact that there are some gray areas around these issues make these prime candidates for issues that should be addressed by contract terms. I'm not a big fan of going overboard on corporate social media policies, but this is one instance where a policy would come in handy for CNN. If they had built in contractual protection, it could provide that upon termination: (1) Sanchez would stop using the account immediately; (2) CNN would have access to Sanchez's password at all times; (3) Sanchez would not post any public statements without CNN's approval; and (4) Sanchez would turn over the account to CNN. Interestingly, many of the sample social media policies I've seen do not contain these types of terms.

As Kirkpatrick notes, CNN has been through this once before, with the departure of Octavia Nasr, who seems to have transitioned her Tweets and followers to her personal account (from OctaviaNasrCNN to OctaviaNasr). Maybe she took the route advised in the "how to change your Twitter name without losing followers" post above?

The more interesting issues may be the non-legal/contractual ones. What's it going to be like for him to interact with his followers after this is over? How will the followers/co-workers (etc.) react?

[I've never watched Sanchez on CNN before, but I came across a Jon Stewart clip that does not place Sanchez in a particularly flattering light (as far as newscasters go): "Jon Stewart Eviscerates Rick Sanchez Over Tsunami Coverage." Ouch.]

Added: thanks to LBW for the link. In the comments, Antonin Pribetic pours a bucket of cold water over this hypothetical:

As far as Sanchez's 148,000 followers is concerned, there is no proprietary right to followers. In any event, this is a red herring since the number of followers one has is directly proportional to nothing.

The Rise and Fall of a Spam Plaintiff

2010-10-01T03:54:00Z

I've blogged a bunch about cases brought by Asis Internet:

I'd go so far as to say that they were a driving force for this blog through the years. Asis brought a slew of lawsuits (20 by one judge's count), and in the process, was partially responsible for rulings that touched on many different aspects of CAN-SPAM, and California's spam statute (much of it not favorable to plaintiffs).

Recently, Asis won a big judgment, but in a separate case was hit with a big ruling for fees: "CAN-SPAM Plaintiff Slammed With $800K Attorney Fee Award." Ultimately, this resulted in Asis abandoning its spam litigation efforts: "Veteran Spam Plaintiff Abandons Spam Lawsuit."

Ryan Burns of the North Coast Journal takes a look at the rise and fall of Asis: "Rise and Fall of a Spam Crusader." The article profiles the owner of Asis, as well as her lawyer, both of whom have apparently decided that they're done with spam litigation:

it’s past the time for arguments. White [the owner of Asis] left town this week to continue her studies of Vedanta and Sanskrit, but she’ll come back to her home in Garberville. Singleton’s law practice continues, though he says his days of prosecuting CAN-SPAM cases are over.

Ryan's article is worth checking out.

Laura Atkins offers her thoughts here: "Suing spammers."

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

2010-09-30T05:02:00Z

I previously blogged about whether you can subpoena someone's Facebook profile in a civil case. The issue came up again, this time in the context of a personal injury lawsuit, where the defendant sought copies of the plaintiff's Facebook page, including deleted messages and photos. Professor Goldman discusses the case in a post and I added my comments as well. I don't see a lot of value in cross-posting (posting what I post there here), but I thought in the interest of completeness, I'd link to all three posts:

So...Can you Subpoena Someone's Facebook Page? (Sept. 25, 2009)
Can You Subpoena Someone's Facebook Page in a Civil Case? [Revisited] (June 3, 2010)
Deleted Facebook and MySpace Posts Are Discoverable--Romano v. Steelcase (Sept. 29, 2010)

There you have it.

Facebook users may be bored, but, paradoxically, they also are easily amused

2010-09-24T05:01:00Z

I'm not a big fan of Facebook.

Among my qualms with Facebook are the fact that it's tough to use (its settings are hard to figure out), and the constant privacy overreaching (I can overlook this, but it just reflects a mindset I'd rather not support). Above all, I just don't like interacting in the way that Facebook lets you, or the way that people seem to interact on Facebook. I can't articulate it beyond this. So my account languishes, and the friend requests accumulate and are unattended to (this is probably a gross breach of etiquette, but whatever). I log in to my personal account about once a month to see what's going on. I don't have my account set to show the feeds of my friends as a default, so lately when I log in I don't even catch the status updates of my friends. (The only things I get are messages, and predictably, those are declining in frequency.) I'm not out to convince anyone that they should stop using it, but I'm just not a fan.

So I was excited to notice Gene Weingarten, writing in the Washington Post, tee off on Facebook ("Gene Weingarten: I hate Facebook sooooooooooooooooooooooooooooooo much"):

Critics contend I am unfair to Facebook merely because I have described it as an ocean of banalities shared among persons with lives so empty they echo. I defend my thesis but admit my evidence has been unscientific -- entirely anecdotal -- based on my occasional dips into this tepid, lifeless lagoon of dishwater-dull discourse.

Using Openbook, a site that aggregates (and makes searchable) Facebook status updates that are public, he offers some data points to justify his dislike for Facebook:

When people find it necessary to inform their friends about how unbearably arid and stultifying their lives are -- which they do at a rate of roughly 2,000 status updates an hour -- the word they choose most often is "boring." They tend to spell it with extra o's or r's, for emphasis . . . . for the record, the person who, by this metric, suffers the most crippling ennui on the planet, boring with 51 r's, is Heather S. of Waterloo, Ontario.

Over the course of 16 days, 130 people alerted their friends to the fact that they "have a pimple." . . . The most frequent location is the forehead, followed closely by the earlobe and then the buttock, most often the left one. The most colorful size comparison was to a tomato, but the largest was "Jupiter." M. Mandel of New York named her pimple Steve. (She also is a fan of Justin Bieber AND the Jonas Brothers, and, under favorite books, notes: "I don't like readingg.")

Literally thousands of people send out communiques describing their excretory imperatives. . . .

In a five-day period, 266 people referenced the chief executive of the United States as President "Oboma." Sixty-seven others called him President "Obamma." Almost all of these people were making the point that he is a stupid incompetent.

On a related note, Facebook was broken for a spell today. This generated a lot of commentary on Twitter (and elsewhere). For my money, the funniest thing I came across was this (from TheDollSays):

Facebook users are roaming the streets in tears, shoving photos of themselves in people's faces and screaming 'DO YOU LIKE THIS? DO YOU??'less than a minute ago via webDolly
TheDollSays

Infographic Spam?

2010-09-23T13:59:00Z

Buzzfeed has a cool infographic about infographics:

So, all those infographics? Turns out that it's all part of an incredibly sophisticated keyword-spamming operation! Which is convenient, because, honestly, we were all kind of getting a little tired of them. Here's an infographic to explain how the infographic-spam industry works.

The infographic also says if you link to one of these infographics, use a "no follow" tag in the html.

"The Truth About Infographics" (BuzzFeed) (via TechCrunch)

The Great "Vitality of the Legal Blogosphere" Debate

2010-09-14T21:47:00Z

Bob Ambrogi posted a law.com column recently in which he declared "blogging alive, well and thriving within the legal profession" ("Legal Blogs Are Dead!"). In his post, Bob offered up a list of newly launched law blogs. Not surprisingly, the critical response to Bob's column came from Scott Greenfield, and others. Scott's post: "The Blawgosphere is Alive (If You're Not Too Picky)."

I think both perspectives are useful, and whenever I meet with a young lawyer I always bring up the possibility of blogging, with the caveat that it's not for everyone. That said, I agree with people like Scott Greenfield and Mark Herrmann, the former author of Drug and Device Law (who moved in-house). (Herrmann's "Memoirs of a Blogger" [pdf] is a must read article on law blogging.) I think their perspective is also incredibly useful. Blogging takes a lot of time and while the benefits are plenty, you mostly do it to satisfy some sort of inner need. (I should say that I do it for this reason.) Scott's perspective - that blogging is not the path to riches - is a valuable thing for would-be bloggers to hear. There is no one size fits all approach, but I'm convinced that from a pure dollars and cents perspective, I could spend my time more usefully in ways other than blogging, or at least I could scale my (already sporadic) blogging back a bit. At the end of the day, sustained blogging takes a significant commitment of time. Time to keep track of the subject matter, time to respond to commenters and other bloggers, and time to write the blog posts themselves. I would say if you are not planning on spending at least three hours per week (150 hours a year), don't bother. I do it because I am interested in the subject matter, and I like to weigh in on the issues.

Anyway, back to Bob's list. I happened to see a blogger whose name I recognized, and when I clicked on his blog, I saw that it had last been updated in March of this year - that's over six months ago! I'm not sure what metric Bob is using to measure the vitality of blogs and for including active or newly launched blogs on his list, but six months is a bit more than a brief hiatus. (For what it's worth I used to read the Digital Media Lawyer Blog, and I'd read his blog if he started blogging again.) I didn't click on the rest of Bob's list and I'm not sure what the inclusion of this blog on the list says about Bob's overall point, but that's neither here nor there.

On a loosely related note, Carolyn Elefant mentioned something in a comment to a post here a couple of weeks ago:

I think that Twitter has had a positive effect on blogging. Used to be that weak bloggers would toss up a couple of links in a blog post without commentary or thought. Now they just tweet or RT them, which diminishes some of the white noise in the blogosphere.

Carolyn's point is an interesting one as well.

@TWITTERHULK SMASH INFRINGEMENT CLAIMS?

2010-08-23T18:46:00Z

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

2010-08-23T04:03:00Z

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

2010-08-21T21:55:00Z

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

[Say 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

2010-08-20T17:51:00Z

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?

2010-08-16T17:52:00Z

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?

2010-08-13T17:48:00Z

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?

2010-08-11T15:16:00Z

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?

2010-08-05T01:50:00Z

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

2010-07-02T15:35:00Z

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

2010-06-25T17:48:00Z

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

2010-06-21T19:27:00Z

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

2010-06-14T19:17:00Z

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

2010-06-08T14:59:00Z

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

2010-06-06T16:46:00Z

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]

2010-06-04T03:28:00Z

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?

2010-05-31T17:04:00Z

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

2010-05-28T18:48:00Z

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

2010-05-26T21:52:00Z

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

2010-05-21T17:04:00Z

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?

2010-05-07T14:40:00Z

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

2010-04-30T23:24:00Z

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

2010-04-27T16:07:00Z

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

2010-04-25T04:47:00Z

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!

2010-04-24T17:17:00Z

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

2010-04-19T14:09:00Z

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.

If You Compile a Book of Tweets from Other People Should you Ask for Permission?

2010-04-13T20:35:00Z

There was some discussion a ways back as to whether tweets are copyrightable, whether Twitter has a license, and what this all may mean to everyone's ability to exploit tweets. (Here's a link to a post from Evan Brown on the topic, and a whole blog devoted to it: "Twitterlogical . . . the misunderstandings of ownership".)

I don't have the energy to wade back into that (interesting) discussion at the moment, but recently came across an example of what could happen here. Let's say hypothetically you don't need to ask for permission. Is it a good idea to go ahead?

An author named Suzanne Schwalb apparently took this approach and compiled a book of tweets from other people. It seems like she didn't ask for permission.

For her efforts, she and her publisher earned some scathing reviews (including this particular one that stood out), endless negative publicity, and Amazon's coveted one star rating.

You can probably tell where I'm coming from as far as whether I think it's a good or a bad idea.

Related: great program this weekend from On the Media on how the world of comedy relies on the informal system of enforcement rather than on copyright rules ("Take my Joke, Please "). Techdirt had a recent post on this as well: "How Social Mores Often Work Better Than Copyright Law in 'Protecting' Works".

(h/t Don Cruse)

Added: Here's a post from William Carleton comparing the terms of various services/networks in the space.

Unvarnished - the Yelp for People: Attractive Nuisance? Privacy Nightmare?

2010-04-05T19:21:00Z

Unvarnished is a recently launched startup which is sort of a "Yelp for people."

It raises some interesting legal issues, two of which are covered in blog posts:

Ryan Calo: "Unvarnished and Unintelligible"; "Unvarnished Revisited"

Rebecca Tushnet: "230 Review Question"

Unvarnished is a "completely evil social network" that encourages people to set up profiles for others. TechCrunch calls it a "clean, well-lighted place for defamation." Users may claim their profiles, but not take them down or edit them to remove negative reviews. Close enough to Kozinski's harassthem.com? My guess is not. Just being an attractive nuisance isn't enough.

More: LAT Technology blog: "Unvarnished, a new website that rates people, triggers controversy." TechCrunch: "Unvarnished, a Clean Well-Lighted Place for Defamation."

Social Media and Journalism - Downsides?

2010-04-02T16:02:00Z

This is pretty far off-topic for this already "focus challenged" blog, but my post about law and fundamentals speculated a bit about the influence of social media in other professions. There's one that I'm really curious about, and that's journalism/news.

It's become pretty well accepted as conventional wisdom that journalists and news people of all stripes have to join the social media revolution. They have to do so in order to keep in touch with readers, respond instantly to feedback, and track down the sources that sometimes appear on social media (often a Facebook page may end up telling at least part of the story, right?). As a reader and consumer of news there's been a pretty fun byproduct of all this, and this is that I get to follow and often see the personal side of journalists and reporters who I'm interested in and read.

But I wonder if there's a downside to media folk spending a ton of time in social media? My own anecdotal observations - as a reader, I don't have any experience or expertise in journalism - is that it leads to a sort of tunnel vision. Over the past two or three years I've ended up filtering most of my news through the web, through blogs, and lately through Twitter, Facebook, etc. If it's not being mentioned on there, it's not viewed as important. Kevin O'Keefe sort of makes this point in a blog post ("How to get coverage in law blogs") giving advice to people who are looking to get coverage on law blogs:

If I have the time, I'll explain that I really don't know anything about them or their company so I have no idea if what they do is of interest to my readers. I'll further explain that for me to learn about them and their company they'll need to mention me or talk about items of interest to me in their own blog, if they have one, or other social media.

It's not that I have a big ego. It's just that until they mention me or subjects of interest to me, I can't see them. They'll not pop up in the items I follow in my RSS reader. Only then will I be able to see them, and possibly other people I follow talking about them. Until they do, they'll not get to the busy intersection of people discussing items of interest to me and my readers.

I'm pretty much the same (and that sounds like good advice to me). If it's not being talked about online or by people I interact with online, it may as well not exist. It certainly has no chance of being relevant. This may or may not be fine for me at a personal level, but to the extent reporters and journos end up in this position, I can see how it may negatively affect their coverage. They may end up writing about and focusing on what they encounter online, in their social media circles, to the detriment of what's occurring off-line. (This may make sense for journalists focused on the internet or tech space, but how about for other journalists. Actually, come to think about it, even if it makes sense for journalists in the tech space, their reporting may leave out people who are off-line, and I'm not sure whether this makes sense.)

Another thing I came across (and this may or may not be related) is a report [link] on the business press that talked about which companies get the most mentions. The one conclusion that was striking is that there's a weak connection between profit and media attention:

the companies that came in #4 and #5 in total business press mentions have yet to show a profit? Forget profits - some people think that Twitter (1336 clips) and Facebook (1314 clips) don't even have business models. Yet over the last six months they each received far more attention than Intel, Sony, Dell, or HP (the largest tech company in the world).

(I have no idea about how the survey was conducted; it seemed pretty informal.) In the tech news space my impression (again, as a reader) is that there's just a rabid and unhealthy focus on certain companies and spaces. (The iPad is coming!!!) The social media space in particular seems to get an inordinate amount of play. I guess you could say that social media is the new frontier, and it may make sense to keep track of these companies and the issues raised by these companies, but the attention that's paid to them is just over the top. To me, it seems imbalanced. A tweak to Twitter's home page ends up reported in the New York Times! (on one of its blogs, but these days, many people treat the two as one). Regardless of where you think Twitter will end up as a company, this piece of news can only be of interest to a Twitter user. It's inconsequential to someone outside of that bubble. And you have to think that the only reason reporters end up talking about it is because they themselves are users. It's their bubble that's being tweaked. As someone who is interested in the stuff (a user of social media who also has a professional interest) this makes sense, but for someone who isn't really participating in social media, this probably seems off-kilter.

I'm just throwing my observations out there as a consumer. I guess at the end of the day one way of looking at it is that media is in the business of capturing the attention of the people, and they're going to write about what people respond to. Social media provides a great tool for the media to tap into readership and figure out what readers want. But there's something unsettling about this way of looking at it.

Possibly related: "About That White House Blogger Post From Yesterday (NYT Gets Punked)" - law blogger Eric Turkewitz pulled off an elaborate 4/1 prank that ensnared NYT blogs, among others. I'm not a big fan of April fool's and I think the internet has taken all the fun out of what little fun there must have been in it to begin with. I'm also not saying that this illustrates my point, but I thought it was worth throwing out there as food for thought.

Added: media coverage of the (oddly divisive) #iPad launch I think illustrates this issue (and flags other ones as well). Kathy E. Gill:

MSM in love with iPad: NYT (which has an app, and thus vested interest) is live blogging launch.

Spam Filters Killed The Beaver

2010-03-30T14:25:00Z

The National Post reported in January [link] on a Canadian magazine which was forced to changed its name from "The Beaver" in response to overly zealous spam filters. I guess it changed its name to "Canada's History" (?)

The BBC has an article [link] on the problems faced by spam filters and filters in general that talks about the "spamming beaver problem". Switched summarizes [link]:

Since roughly 98-percent of the Internet is made up of pornography (we're rounding down), it becomes difficult for spam-catching programs to decide what's crude and what's not. Some spam is getting smarter, throwing spaces or errant letters into the middle of sexy words in order to slip past your filter unnoticed. But filters aren't smart enough, sometimes sending your perfectly reasonable e-mails into digital quarantine. Sheerin gives an example of spam filters replacing "flagged" words with more innocuous synonyms, like "breast" for "tit." In 2008, the American Family Association's Web site censored an Associated Press article about Olympic sprinter Tyson Gay; the headline was transformed into 'Homosexual eases into 100m final at Olympic trials.'

Switched also places some responsibility on the writers, and recommends that writers should use words that are not capable of double meanings. It's a bummer that things like spam and web filters are affecting how we write, but it is what it is I suppose. I guess search engine-considerations affect how some people write as well. Say what you will, but for me, writing is fun, and it can't be fun to write with the search engine in mind. (Not to mention how it must affect the quality.)

Added: Mike Masnick of Techdirt is not happy to find out that gmail is marking Techdirt emails as spam.

Related: I remember seeing an article [Slashdot] about SpamAssassin automatically flagging all mail sent in 2010 as spam because it was "too far in the future."

California AG Candidate (and Former Facebook Privacy Officer) Chris Kelly Buys Hillary's Email List?

2010-03-25T15:05:00Z

An LA Times post (feels strange to say that but ...) mentions that Chris Kelly, who is running for Attorney General in California, "bought" Hillary Clinton's email list. (h/t @gagnier)

I have no idea what the rules are here. I'm guessing people on the list can't really complain. Even if the applicable privacy policy said you could not transfer the information, it would be very difficult to make out a claim for damages. (Cherny v. Emigrant Bank, for example is a case that rejects this type of a claim.) That said, I really question how effective buying an email list is in the political context (or in any other context, for that matter). People are fatigued with emails, it seems like political emails can be particularly fatiguing. If potential voters realize that Kelly got the email list from Hillary will they be more or less inclined to vote for him? I'm not a California voter, but my answer is no (it would make me less likely to vote for him)!

Then there's also the fact that he was Facebook's Chief Privacy Officer. I would think from a policy standpoint he wouldn't be that excited about "buying an email list?" Then again maybe not?

(I remember reading somewhere about an instance where a candidate bought a donor list as a favor to the candidate selling the list, to help his or her campaign pay off debts. Maybe this is one of those arrangements?)

Emphasizing Tech and Social Media at the Expense of the Fundamentals?

2010-03-25T02:34:00Z

I recently followed tweets about American Bar Association's "TechShow" on Twitter.

One thing that bothered me about the content of the presentations was the glaring lack of emphasis on fundamentals. There was a lot of talk about how technology is changing the legal profession and how technology can be used to better deliver service and value to clients, etc. Technology can "transform your practice." (Oh, and technology is changing the marketing landscape too.) It would have been great for just one presenter to highlight the fact that all of the tech stuff at the techshow are just extras, or at least emphatically make the point that learning the fundamentals is equally as important (if not more so) as being exposed to the stuff that was being emphasized at "Techshow".

The message a young lawyer may take away from this (I'm assuming young lawyers attend these events, but maybe I'm wrong?) is that if you learn the tech and keep abreast of these technological developments (if you're an "early adopter") you are good to go. We're painting a picture that you can jump past the nuts and bolts of lawyering and focus on things like technology, social media etc. Heck, when the iPad comes out, if you can figure out how to use it, you'll have the whole lawyering thing covered. And better yet, you'll have one up on all those lawyers who don't know how to use an iPad ("game changer" that the iPad will be). And this message is being reinforced by the content of presentations at events like techshow and the show itself. We see statistics thrown around like X% of all Americans access social media once a day and people spend X hours a day accessing social media. All jurors are on social media 24/7. All clients and potential clients are on social media. So what? If you don't learn the fundamentals of lawyering - assessing your client's issue, figuring out what they want to accomplish, and above all, figuring out how to achieve the result within the legal system - you may as well go home. All of Susskind's pontifications aside, the core of lawyering (at least in an adversarial setting) will never evolve away from understanding and digesting the law, having solid writing skills, and engaging in advocacy in front of a factfinder or tribunal. Maybe I'm wrong, maybe it will. But the day it does, I'll happily pack my bags and finally open up that restaurant that I've mused about over the years.

I realize the focus of the show is on technology in the legal profession so you can expect the focus to be on technology, but I'm still bothered by the lack of mention of the fundamentals. I think it's a disservice to young lawyers who may be attending or following along. Given that the ABA is putting on the event I would think this would be a concern to them? It's a lot tougher to learn the fundamentals than it is to learn the tech/social media stuff. The ABA should emphasize that in the early years, we should be spending much more time and energy learning the fundamentals.

Marshall Isaacs has a post ("Demise of the Civil Litigator") that laments the "noticeable decline in the skill level of New York civil litigation attorneys." This is probably attributable to many different things (including the economic climate), but I wonder if at least part of this is attributable to the fact that younger lawyers are starting to focus on tech and other things rather than the fundamentals?

I wonder if other professions are experiencing a similar dynamic. Many other professions - from photography to journalism - are under severe economic pressure. And the solution that's thrown around always seems to be "technology and social media is the answer." I wonder if any downsides of this shift in focus away from fundamentals are becoming noticeable in other areas?

More: from Brian Tannebaum here ("Watching Law Ignite Into Flames"), Scott Greenfield here ("Conspiracy to Commit Wire Fraud"), and the Trial Warrior Blog here ("Star Trek, Social Media and Legal Ethics").

[I should add that I'm a huge fan of changes in the legal profession wrought by technology. But for me, this is a minimal part of the actual practice of law. I'm a beneficiary of the changes. I think we all are. Brian is. I bet Scott is. All of the lawyers who are viewed as railing against this trend are all bloggers and lawyers who use technology to their benefit. That's the odd part of all this. I don't think many people need evangelizing. I may be biased because I'm Seattle based, and entered the profession in the mid-late 90s, but by and large, 90% of the lawyers I know view technology as a good thing and use it to their benefit. The lawyers I know have always embraced it.]

A response: from Carolyn Elefant here. Worth reading.

The "Clean Break" Question - Follow Up

2010-03-19T16:30:00Z

Several other bloggers posted, weighing in on the "clean break" (or in some cases "should I shut down a blog") issue.

Ron Coleman (Likelihood of Confusion & Likelihood of Success): "Gotta get a Round Tuit"
Colin Samuels (Infamy or Praise) "A Round Tuit (23)"
Bob Ambrogi (LawSites) "Should I Shut Down LawSites and Start Anew"; "More on Whether to Scrap My Blog"
Kevin O'Keefe (Real Lawyers Have Blogs) "Focus on Engagement, Not the Title of Your Blog, For Blogging Success"
Bruce Carton (Legal Blog Watch) "Should I Scrap My Law Blog and Start a New One"
Eric Turkewitz (New York Personal Injury Law Blog) "Name That Law Blog!"

It was very helpful to see these comments and reactions, many from some grizzled veterans in the space. I appreciate the comments on my post and those I received via email. A few quick observations to throw out there.

1. This is what blogging is all about. Having a conversation, connecting with people, etc. As trite as it sounds, without a doubt this is one of the biggest benefits of blogging.

2. I'm not sure where I stand on the issue of whether the name is important. Like all other things branding-related, my view is that it depends. For some people it probably doesn't matter. For others it may matter more. (Although I'm a certified "Level 5 Social Media Guru," I'm far from a branding expert, so take this with a grain of salt.)

3. Kevin brings up a good point. It's all about the engagement. I think we all get that (see no. 1, above) but it's worth repeating.

4. Apart from the branding, the question I was getting at as if you have multiple online spaces where you are active, which one do you want to focus on (or tell other people to focus on)? More and more people seem to blog but do a bunch of stuff outside the blog. If you are speaking at a conference, what's the URL you give people when you say "here's where you can find me [engaging online]". What's the URL you leave when you leave comments? Many people have 2-3 options here. Steve Rubel has a post ("What URL Should You Emphasize") which asks this question. It's worth checking out.

5. Much of the attachment (for me at least) is emotional. I liked the way Ron Coleman described his process for deciding to shut down Likelihood of Success. That's a clean break!

6. Blogs are organic and live and die. I like the idea of a blog having a focus, but things always change. You will outgrow your blog at some point (or your blog may outgrow you).

7. You don't even necessarily need your own blog to blog. You just need to generate content and have some place to put it. Starting your own blog is helpful, but obviously not necessary. You could blog at a group blog. (But see no. 4, above.)

8. In the overall scheme of life, all of this may seem menial, and it is. If you are debating whether to start a blog or whether to start blogging, just do it!

Rhetorical Flourishes and Cutesy Phrases in Legal Documents - Thumbs Down

2010-03-16T05:23:00Z

Professor Volokh has a post at the Volokh Conspiracy asking if a particular bit of rhetorical flourish (humor?) is appropriate in a legal brief. He points to the following language from a brief filed in a case he was uninvolved with four years ago:

I. DÉJÀ VU

When I curled up in my cozy lounger two weeks ago to enjoy yet another defense motion in the series, this most recent page turner instantly stirs in my mind the astute words of a great American scholar: "It’s déjà vu all over again." [FN: Yogi Berra.] Though masquerading into the Clerk’s Office donning a clever disguise, we encounter an identical defense motion that re-introduces itself to us with an alias. This creature, with a few text substitutions for camouflage, is identical to "Defendants['] ... Motion in Limine" and brief of April 22, 2005. These two defendants, disappointed by the Court’s decision to defer resolution of all motions in limine until the start of trial in February 2006, re-file their Motion with the Clerk with a new name and citing a different court rule to rouse an earlier decision.

My answer: why risk it? (The comments to the VC post are worth reading.) It's possible that the lawyer was friends with the judge and knew the judge's sense or humor or personality and knew that he or she would appreciate this language. It's also possible that it rubs the judge, or his or her law clerk (or someone else) the wrong way. Who knows, maybe the case ends up on appeal, and one of the appellate judges doesn't particularly like baseball? Maybe a prospective client happens to read the brief? It's for this same reason that it never (or rarely) makes sense to make a pop culture reference or a political reference in a brief. You never know whether the reference will strike a chord with the ultimate decision-maker and adversely affect the outcome, or will otherwise prejudice you or your client's interests. This is not to say that legal documents should be sterile and free of fun. I'm sure I've thrown in the barbed footnote once or twice. (Actually, I can't recall a specific instance at the moment, so then again, maybe I haven't.)

In these matters, I think it's wise to heed the advice of Malcolm Gladwell, who in a Slate entry over a decade ago, made one of the best arguments against making extraneous statements ("The Theory of Disqualifying Statements"). I guess this could apply to blogging as well, but that's neither here nor there. There are of course, exceptions to every rule, and here's one classic example (from Randazza, obviously) of where snark turns out to be quite appropriate and effective.

I've also never been a fan of pop culture references or cutesy turns of phrases or "themes" in court opinions. While there are obviously exceptions to this rule, they are few and far between.

Loosely related: Carolyn Elefant laments the vanity footnote in a post here. (I don't necessarily agree with it, but I think it's worth reading and thinking about.)

Should I Make a "Clean Break" With the Blog? -- Looking for a Little Help From Readers

2010-03-15T17:49:00Z

Bob Ambrogi asked a question recently that's similar to one that has been plaguing me for about six months. (It's literally weighed me down so I'm glad to get it off of my chest.) The question (for me) is whether I should scrap this blog and re-launch another one. I'd love some feedback on this.

My Online Landscape: I've been blogging here for about 3.5 years. I have enjoyed it tremendously. I started the blog as a way to focus on spam-related legal issues, but over the years, my blogging interest has broadened to include all types of legal issues raised by online communities, UGC, and online businesses in general. This has coincided with the increased attention to legal issues that have arisen out of social networking. It's also coincided with my practice, a chunk of which has focused in this direction. That said, there's always been a tension for me about sticking with the original focus of this blog or broadening it a bit to deal with other legal issues that I regularly read about and have an opinion on (and once in a while, insight into).

For about the past three or four months I have been guest-blogging over at Professor Goldman's blog. This has been a great opportunity for me. It's something I have really enjoyed, has given me additional exposure, and most importantly, has sharpened my blogging. Guest-blogging at someone else's blog feels similar to cooking breakfast in someone's kitchen when you are a house-guest. You are more tentative because you are in someone else's place but you are pushed to do a better job. Guest-blogging does have one downside and this is that you are a lot less spontaneous and opinionated about what you blog. Either way, I plan on continuing my guest-blogging efforts at Professor Goldman's. Although the brand benefits aren't as good as they would be if I blogged on my own blog, on balance I think the benefits far outweigh the costs.

Reasons to Not Make a Clean Break: The biggest reasons that people give to not have a clean break are (1) "google juice," and (2) the loss of subscribers/regular readers. I've never placed much value on Google juice. The precise reasons are best left for another day, but I break down my blog-generated connections into two categories. One category includes people who "know" me or have some online or off-line connection to me. They have a good idea of what I do and read the blog or correspond with me from an informed position of what I do and how I may be able to help them or work with them. I would think many of these readers would (to the extent they are interested in the subject matter) read my writings at another location. The other category of people who form some connection with the blog includes people who find the blog through a random Google search. While the number of unsolicited reader communications I've received over the years has gone up significantly, the quality of those communications has never been particularly good. The typical email is along the lines of "Google is listing some unflattering results about me in response to a search, can you get Google to stop." I'm also not sold that the types of clients I have and am looking to cultivate find their lawyer through a Google search. I'm not saying it will never happened but by and large, the average Google searching reader doesn't seem to be someone that ends up engaging with me long term. At the end of the day, I've built up some sort of readership and brand recognition at this blog, but I like to think I could do the same at a new blog.

Reasons to Make a Clean Break: There are probably many more reasons to make a clean break. The first is "branding." When I started the blog, I intended to focus on spam-related legal disputes and having a blog that focuses on more than this is less than optimal from a branding standpoint. I'm also not a big fan of the name "Spam Notes" for a blog that more broadly focuses on online legal issues. (I have a personal/quirky affiliation with it but from a branding standpoint I'm not sold on it for anything other than a spam-related blog.) Having "spam" in the name also doesn't have the warmest connotations for some. (Maybe I'm wrong about this? As a sidenote, for a variety of reasons, I'm not a fan of SEO considerations being the primary driver behind a blog's name - e.g., "onlinelegalissuesblog." I'm not a professional brander, but when it comes to branding, I'm a fan of subtle and interesting.) Second, this blog is currently on a GoDaddy platform and I've long wanted to move to another one. WordPress is my preferred choice, although there are plenty of other platforms out there. The simple reason why I don't like GoDaddy is that GoDaddy makes it hard to do things like add on to the blog, port content, etc. I've set up a couple of blogs before and if I had a WordPress blog I could much more easily make some tweaks to the blog. Equally as important, there's a robust WordPress developer community. In contrast, the "GoDaddy developer community" is pretty much non-existent. Third, I think a clean break makes the most sense from a psychological standpoint. "Spam Notes" is great but it has a lot of baggage (not necessarily bad baggage mind you, but stuff that influences my writing and direction). No matter how much I re-focus the blog, I'm still thinking about old readers and what I envisioned the blog to be when I first started it. I am probably overestimating how much readers care and influence my writing, but writing with a clean slate will probably be liberating in many respects.

There's a final reason I'm in favor of a clean break and this is that my blogging has been pretty focused on having a conversation with other lawyers around legal issues (cases, legislation, etc.). I would not characterize it as particularly client friendly. The average business person is not likely to pick up this blog and find a bunch of useful, practical advice. I think there's a pretty big underserved niche here. I could focus my old-style law blogging elsewhere (e.g., on Professor Goldman's blog) but launch a new blog that's much more client friendly.

A Third Alternative - an Online Business Card/Portal: Another alternative that's been swirling around is to set up a portal of sorts at my old law firm website (which I've been meaning to kill or redirect for about a year now). It also enjoys a relative strength in terms of Google juice but doesn't accurately reflect what I'm doing. I've often thought that it's worthwhile to have a single spot (it could be a page, such as a landing page, on a site) where you should aggregate your professional online activities. In any given month I may guest-blog, receive a media mention or two, and write a few blog posts. It may be nice to aggregate this and update it on a weekly basis (relatively easy to automate) at balasubramani.com. What's the purpose of this? I could include this in my email footer so if I want to give people a nice snapshot of what I do online, I can just send them this link. I could include a mini bio and resume on there. People could obviously just do a Google search to find out what I'm doing, but I like the idea of being able to present this to people (not necessarily everyone but people who aren't familiar with my online activities) and control the presentation.

Organizing Your Online Presence: The final thought I want to add is that I've really struggled with "organizing my online presence." I generate a fair amount of content and put it out there in a pretty unorganized way. I've read a ton of blog posts on how to best organize your online presence, and while there's obviously no one size fits all approach, I haven't even come close to organizing my online approach much. Beyond the guest-blogging and plans for a new blog I have had thoughts about starting a video blog - a weekly recap of some interesting legal issues and practical advice. Where should I put this? Should I integrate this with my new blog? Should I put it on a separate blog?

Either way, I've been thinking about this a lot over the past six months, and I thought it would be helpful for me to just articulate my thoughts on this. I'd love to hear thoughts, feedback, etc.

Added: Bob posts his thoughts here. He's been blogging a lot longer, and has a much bigger readership and recognition, and a lot more reason to "keep the blog going." I'm not sure what the best approach is for him, but after writing this and reading his post, I'm convinced that at least for me, a chunk of the attachment is emotional. And this favors a clean break. (It's odd that we become attached to things like blogs, given that they are just a place to store and access your writing!)

Some loosely related links:

Mark Hermann recently wrote a piece in ABA's litigation magazine [pdf] about some blind spots he had when he first started his "Drug and Device Law" blog (which has now turned into a group blog - best of luck to Jim Beck and his co-bloggers!). This article is well worth reading, among other reasons because Hermann has a great writing style. It's just entertaining on its own.

Chris Brogan posts on this topic often. Although some of his advice doesn't fit as well for lawyers, I often enjoy reading his big picture thoughts on creating content and engaging an audience, and I find it helpful. (Unlike other people, I don't think lawyers necessarily want to build a community with a bunch of people commenting. Instinctively, this wouldn't work as well for lawyers, but I may be wrong.) If nothing, it gets me thinking. Here's a post (for example) worth checking out: "If I Started Today."

Kevin O'Keefe also posts a lot on blogging and law blogging. I seem to recall an older post of his about a blog being the most effective online "hub." I'm not sure this is that post, but it will give you a flavor of where Kevin is coming from: "Does a lawyer need to blog to make effective use of social media?" Niki Black also collected a bunch of tweets on this topic: "Does a lawyer need to blog to make effective use of social media?" For me, the answer to the question asked by Kevin and Niki is obvious. As far as interacting online, I'm happiest when blogging. I use Twitter and Facebook but it's mostly for fun or a mix of fun and for professional reasons (with the emphasis on fun). If I didn't blog I probably would not participate online in any professional capacity, or certainly would not participate as much.

Rocky Mountain Bank - Gmail Update - Judge Ware Denies MediaPost's Motion to Intervene and MediaPost Appeals

2010-03-06T18:12:00Z

I previously blogged about an incident where a judge in the Northern District of California ordered a gmail account shut down due to an errant transmission of sensitive financial information of Rocky Mountain Bank through (or to) a gmail account. See additional coverage at TechDirt, BNA's TechLaw, and Wired.

The parties ultimately resolved the dispute, but MediaPost sought to intervene to find out exactly what happened and what steps Google took. The court denied MediaPost's motion to intervene. Access Judge Ware's ruling at Scribd here. MediaPost has appealed.

I don't know what MediaPosts's chances are on appeal. My gut says not so good. Appeals are tough to begin with, but here a third party is trying to intervene in a case that the underlying parties have settled. There's obviously significant public interest issues lurking in the background, but I can see an appeals court leaving those for another day. I am personally curious to see what happened behind the scenes and would love to see MediaPost shed some light on the situation.