joegratz.net

The proposed revisions to the trademark dilution provisions found in section 43 of the Lanham Act have caused substantial confusion regarding whether they change the defenses applicable to section 43(a). The Trademark Blog cuts through the thicket.

Creative Commons has just released its Podcasting Legal Guide, prepared by Colette Vogele, Mia Garlick, and the Berkman Center Clinical Program in Cyberlaw.

Congratulations to Colette and Mia on the release of the Guide. I had the pleasure of helping with some revisions, and the guide should prove to be a valuable resource for podcasters.

Susan Crawford posts an excerpt from a 2001 interview with Jane Jacobs:

I’ll tell you something that had been worrying me: I liked to visit museums that showed old time machines and tools and so forth. And I was very struck. There was one of these museums in Fredricksburg, Virginia, which was my father’s hometown. He was from a farm near Fredricksburg. I was very struck with the way these old machines were painted. They were painted in a way to show you how they worked. Evidently the makers of them and the users of them cared about how these things were put together and how what moved what so that other people would be interested in them. I used to like to go to the railroad station in Scranton and watch the locomotives. I got a big bang out of seeing the locomotives and those pistons that moved the wheels. And that interested me how they were moved by those things and then the connection of that with the steam inside and so on. In the meantime, along had come these locomotives that had skirts on them and you couldn’t see how the wheels moved and that disturbed me. And it was supposed to be for some aerodynamics reason, but that didn’t make sense. And I began to notice how everything was being covered up and I thought that was kinda sick.

Jane Jacobs died Tuesday. The weekend before her death, I attended an event emblematic of the curiosity about the world and its workings whose loss Jacobs lamented. Make Magazine’s Maker Faire — bearing the motto, “If You Can’t Open It, You Don’t Own It” — drew a crowd of tens of thousands of intellectually curious tinkerers to the San Mateo County Fairgrounds to participate in workshops and meet with other tinkerers in what felt like a big, joyful adult science fair.

The “joyful” bit was what surprised me most. Attendees seemed genuinely, deeply happy that there were so many others who shared their curiosity and do-it-yourself spirit.

Many tinkering projects run afoul of intellectual property laws. Even leaving aside patent concerns, all tools that manipulate media are tools of copyright infringement, and tinkerers see no reason why laws initially intended to prevent unfair competition within the content industry should keep them from making and using cool new tools.

The publisher of Make Magazine, Dale Dougherty, gave a presentation to a very enthusiastic crowd at dorkbot a few months ago. After the presentation, I asked him whether the DIY attitude toward technology promoted by the magazine required hostility toward laws like the DMCA’s anti-circumvention provisions. His answer was telling. “It’s not a matter of ‘To do this, you must believe this,’” he said. “It’s more, ‘If you do this, you’ll come around to believing this.’”

Tens of thousands of people gathered last weekend because they didn’t like “how everything was being covered up,” and they wanted to celebrate the creativity and intellectual satisfaction of making things that work. What will happen when they all come around to believing that laws restricting what they do on their garage workbench represent misguided policy?

James Grimmelmann very amusingly and thoughtfully explores the issues raised by a French Connection ad that’s awfully similar to a Groovecutters music video.

The Department of Justice has submitted a legislative proposal to Congress (PDF courtesy CDT). It would:

• Triple the monetary penalties electronic communication services providers would pay for willfully failing to report child pornography pursuant to 42 U.S.C. 13032;
• Require commercial website operators to include, on each page containing sexually explicit material, all “marks and notices” prescribed by the Federal Trade Commission (which, the bill notes, will be “included in the code” of the websites if feasible); and
• Prohibit commercial website operators from including any sexually explicit content “on the website that is initially viewable, absent any further actions by the viewer.”

The latter two provisions apply only to websites which are “primarily operated for commercial purposes.” “Sexually explicit material” is limited to “material that depicts sexually explicit conduct” — which might mean it’s limited to images, but it might not. There is an exemption for sites on which the sexually explicit material “constitutes a small and insignificant part of the whole, the remainder of which is not primarily devoted to sexual matters.” So a newspaper could probably report the testimony of a rape victim without fear of criminal sanction, but a sex education site would seem to be “primarily devoted to sexual matters,” and its operators could be thrown in federal prison for five years if they failed to mark their site in conformance with FTC regulations.

I’m a bit troubled by the “initially viewable” provision, too, but my concerns are mostly practical; it’s tough to tell where someone’s going to land on a website, since, you know, deep linking exists. The provision is pretty clearly directed toward making sure that a site’s homepage doesn’t have sexually explicit material on it, and I don’t see why they couldn’t just say that. It’s unclear to me, though, whether such a regulation would be a violation of the First Amendment, since non-obscene sexually explicit material on commercial websites is protected as commercial speech, and there’s nothing inherently deceptive about putting particular speech on the front page of a site instead of behind a click-through wall.

Bill Patry has this great post on the Google / Joan Miro spat from a few days ago. His analysis is, as usual, spot on, but the most interesting part is his assertion that baseless copyright claims like that made by the Miro estate lower the status of copyright in general:

Last week the Estate of artist Joan Miro demonstrated why copyright has gotten a bad name; not just among those who don’t believe in protection at all, but among those, like myself, who have believed that the existence of protection is important and appropriate, and at a fair high level.

* * *

The tragedy is that such unseemly efforts give fodder to those who oppose any protection.

I think Patry points out an important turn, and one that could be dangerous for copyright holders in the long term. Copyright began as a regulatory regime, ordering relations among companies that made money from the creation, reproduction, and dissemination of creative works. As copyright extends into the personal sphere, and as rights holders like the Miro estate attempt to leverage copyright protection into a form of all-encompassing control of styles and concepts, copyright holders risk losing the support of the public. In a democracy, the loss of such support can be hazardous to owners of government-created exclusive rights.

Public Knowledge has made available a copy of this draft bill, currently titled the “Intellectual Property Protection Act of 2006.”

The bill strengthens several provisions of the Copyright Act, mostly related to criminal copyright infringement. It would increase penalties for various copyright crimes, provide additional funding for the investigation of copyright and computer crimes, and allow for broader forfeiture of property used to commit copyright crimes. It would also make it easier to prove “trafficking,” in all of the statutory provisions in which trafficking gives rise to liability.

In addition to these issues of investigation and punishment, the bill proposes three substantive changes to copyright law, one civil and two criminal.

First, the change to civil copyright infringement law. It is already copyright infringement to import, without the copyright holder’s permission, copies lawfully made outside the United States for the purpose of distribution within the United States. (Individuals are allowed to import copies for personal use, so I won’t be liable for ordering that Benjamin Biolay album from amazon.fr.) But this bill makes it an infringement to export infringing copies. A party that made and exported infringing copies would already be on the hook for the infringement itself, and a defendant who exported the copies without making them would probably already be on the hook for vicarious copyright infringement. This addition would just seem to make it easier to go after the exporters. It makes me a little uncomfortable that there’s civil liability for exporting copies “the making of which either constituted an infringement of copyright or would have constitued an infringement of copyright if this title had been applicable,” sec. 5(a)(4), since while the conditional applicability language is already in the statute, one could imagine an overzealous prosecutor thinking, erroneously, that various defenses to infringement like section 107 or section 1008 made Title 17 inapplicable instead of simply taking away liability. Other than that, though, this doesn’t seem to be a radical expansion of a copyright holder’s distribution right, since the new subsection only imposes liability for the distribution of copies that are already infringing. Does anyone else see more major problems here?

Second, the bill would criminalize attempted criminal copyright infringement and conspiracy to commit criminal copyright infringement. Most federal crimes include these ancillary crimes by default. It’s starting to get a little scary, though, when it’s a federal crime to attempt — but fail — to have a friend buy you a burrito for giving him a burned copy of Microsoft Office. (Wonks: That’s a violation of 506(a)(1), since a burrito is included in “anything of value” [at least if it’s from Taqueria Can-Cun].)

Third, the bill would remove the registration requirement for criminal copyright infringement prosecutions. Right now, the copyrights to the works at issue must be registered at the time the action is filed, whether for civil infringement actions or criminal prosecutions. Criminal copyright infringement requires willful action, which probably implies actual knowledge that the material is copyrighted; for this reason, the elimination of the registration requirement probably doesn’t expand the range of proscribed conduct much, and probably doesn’t give rise to a vagueness challenge. It does, however, make it easier for prosecutors to go after infringers without the cooperation or involvement of the copyright holders, and eliminates one impediment to the initiation of criminal copyright infringement prosecutions.

In all, the bill as currently drafted strikes me as unnecessary as a matter of copyright policy, and continues the unfortunate erosion of the traditional formalities upon which copyright protection has always been conditioned in the United States. The expansion of criminal copyright infringement to include conspiracy and attempt and the expanded definition of trafficking could, in the hands of an overzealous prosecutor, lead to prison time for ordinary people engaging in ordinary (though willful) acts of infringement, or for ordinary tinkerers who make their useful (though circumventing) software available to others.

One of the RIAA filesharing lawsuits was dismissed late last month — but not on the merits. Internet Law & Regulation has posted this four-page order from the Eastern District of Michigan dismissing a filesharing lawsuit against Brittany Chan, a 15-year-old.

The copyright holders initially sued Brittany’s mother, but that suit was dismissed, because all of the alleged filesharing was done by Brittany. The copyright holders filed a new complaint against Brittany; since she’s a minor, she is entitled to an adult representative of her interests (a guardian ad litem). The court ordered the copyright holders to come up with “a functional proposal for the appointment of a guardian ad litem for Brittany Chan, as well as a manner of paying such guardian ad litem during the pendency of this action.” The copyright holders argued vociferously that they shouldn’t have to pay the guardian’s fees, but failed to make the required proposal.

The judge dismissed the action, finding that the copyright holders’ “failure to respond to the order inexplicable in light of the efforts of the Court to work with the Plaintiffs in advancing this case and the fact that Plaintiffs were ordered to provide a proposal.”

The outcome has very little to do with copyright law, but lurking beneath the surface seems to be a distaste for the copyright holders’ litigation tactics — and with the fact that the suit was on the court’s docket in the first place. Plaintiffs were, after all, suing a 15-year-old girl for thousands of dollars in damages. Dismissal of the action may seem an extreme sanction for failure to respond to the court’s request for a proposed solution to a procedural problem, but the copyright holders’ obstinacy in the face of a practical judicial request seems to have tipped the equitable balance even further in the 15-year-old’s favor.

William Patry, who spent several years as deep as one gets in copyright policy work as copyright counsel to the House Judiciary Committee, has this post on how the process has gone wrong in the past ten years. He notes that Executive Branch control over treaty negotiation is allowing circumvention of the traditional domestic legislative process. Special interests with influence in the Executive Branch — during both the Clinton and Bush administrations — have been able to insert provisions into multilateral trade treaties that effectively force Congress to implement draconian copyright laws they would otherwise have rejected on policy grounds.

Since 1996, however, in the WTO copyright treaties, a dangerous route has been taken of having what will become domestic legislation negotiated in the context of a treaty. Congress is then presented with a fait accompli. Those involved in such international efforts are a very small group and in no way represent the public interest. The noegotating is done in private and may be over before one hears about the latest proposal. Those outside the group and objecting are left with the impossible task of attempting to get the same Administration that negotiated the deal not to ratify the treaty or to attempt to get Congress not to pass implementing legislation.

I had a great time at the Blog Law & Blogging for Lawyers conference, presented by Law Seminars International and chaired by Cathy Kirkman and Dennis Crouch. I got to meet dozens of really interesting people engaging with blogging and social media from many different angles. (So few of us, for example, think about the securities law problems posed by executive blogging!)

I tried to capture the key points of each presentation, but I couldn’t catch everything. Luckily, the conference producer recorded all of the proceedings on video, and will be offering a DVD set of the entire conference for home-study CLE credit. (The set costs $1,005, though, so it’s probably not an option for everyone.)

You can find a complete set of my posts about the conference here.

In addition to my posts, the event was liveblogged by David Maizenberg of the Decisis Blog. If I’m the play-by-play man, he’s the color commentator.

Thanks again to Cathy, Dennis, LSI, and all of the attendees for making the event such a success.

I’m liveblogging from Blog Law and Blogging for Lawyers, presented by Law Seminars International.

The panel consists of Bennet S. Koren, Gregory J. Kopta, and Denise Howell, and is moderated by Dennis Crouch.

Dennis Crouch:
There’s no doubting the marketing effect of a lawyer’s blog. My own case is demonstrative. A few years ago, I was an anonymous patent associate. Now, I’m no longer anonymous.

How did you all get started?

Bennet:

The Hurricane Law Blog started out of necessity, as the levees were breaking. The managing partner was in the room, and we came up with blogs as a way to disseminate information about the disaster. It’s been a very interesting project. We rely on all parts of our firm, but you need a lot of editors to start something like this. We have lots of hits from outside counsel, from inside counsel who we represent, and hits from the public (300-400 per day). Most of the information we post is public, but that doesn’t mean that clients want it posted. (There’s a fear of copycat lawsuits.) Another problem is taking a legal position on issues, since they could be used against us later in litigation if we turn out to come around to a different interpretation.

Greg:

I practice telecommunications law. It gets a little arcane and narrow. We decided that monitoring what’s happening at the FCC and at state PUCs was a good way to keep our clients, and potential clients, informed. We started the FCC Daily, as an email service. Then weblogs were used more, so we took the FCC Daily and created a weblog, the Telecom Law Blog. It takes a lot of time. Our firm has other blogs, including the privacy and security blog, but keeping pace with the issues as they arise. They get 10 times as many hits per day.

Denise:

I just sat down with Blogger and put together my blog. I clicked publish. It was thrilling. I had no idea what would happen with my blog and with blogs in general. One of my first posts was about getting Hello Kitty on a Visa card. I came into blogging through the help of some very smart people — it puts you in touch with an amazing array of smart people. My observation as to this conferene is that it’s a living, breathing testament to the power of the blogosphere — not because it’s about blogs, but because these conversations we’ve been having have been going on for a long time, and will continue after the conference. Blogs have been “de-silo-ing” the law, creating conversations across institutional boundaries. Look at who’s here — all sorts of people. The types of people who makes the blogosphere great. I began to discern these types of relationships early on, and they became my blogroll. (Back then, there were a lot fewer blogs to sift through.) People pay attention to traffic early on, or if they’re commercially-oriented. You rapidly realize, though, that the tools for tracking traffic are imprecise and that traffic ebbs and flows. Soon, I started getting recognized as an expert. But what was even more valuable was being recognized as a funnel. I agree with about 80% of what Kevin O’Keefe says, but I disagree with him when he says to stay on-message. He’s tailoring his message based on his own personal preferences, which is great — see what YOU want, and what YOU
find interesting, and push that out into the world. That’s a less mercenary marketing approach, but one that is powerful and effective. Read The Cluetrain Manifesto and Small Pieces Loosely Joined. They predicted what we’re seeing today.

Dennis:

I agree with Denise in a big way. One successful part of my blog is that, although I certainly don’t have as much personality as Denise, I try to put a little bit of humor and a little bit of personality in my blog. When I meet regular readers, I feel like they know me as a person. It’s a little scary, but it’s a cool, unique experience. I’ve met thousands of patent attorneys around the world. One real issue is that for a law firm, it’s scary to make one of their attorneys famous. They want to make the firm famous, since that associate who blogs really well might leave. Greg: I didn’t get any push-back about somebody being a star, but our blog doesn’t have that much personality. Our premium is speed, not personality. That’s easier, too, because people won’t sue us for our back-of-the-napkin opinions. Bennet: We encourage associates, partners, and everybody else to contribute, and we’ve had no problems getting those contributions. Denise: I don’t think yours lack personality — they’re focused on an area where your passions really shine. Elevating lawyers above invisibility is, or should be, the holy grail of law firm marketing.

Q: Do you seek to develop a dialogue with your readers? Is that an objective? What works? Denise: Any time you’re publishing your thoughts and opinions with an email address, you’re inviting a dialogue. Just doing that creates a dialogue. Very few people comment on my site, despite lots of readers. Bennet: We’ve had a number of inquiries from people who have suffered through the storm, and we’ve put them in touch with people who can help them when appropriate.

Q: Do you worry about jurisdictional issues? Do you worry about someone relying on your advice? Greg: We generally do not give anything like legal advice — it’s just an objective recitation of what’s happened. Bennet: The litigators didn’t want me to take public positions on anythign we might be litigating someplace down the line. Denise: I worry about it very seldom. First, I don’t give anything that someone could construe as specific legal advice. I have conversations off-blog, and I treat them just like real-life interactions.

Q: If you’re about to post something, what type of review process do you go through? Greg: We established early on that we were going to be neutral and factual, so we don’t run it by anyone else first. If we were going to provide something more in depth, we would run that by someone on our Quality Assurance committee first to make sure it doesn’t raise liability issues and won’t be embarrassing later.

Q: How have you had to alter blog posts, and how often? Greg: Not often. Bennet: Everything goes through our marketing director, and she has parameters about controversial topics. Denise: I self-police, since my site is not affiliated with the firm. But they nonetheless are connected with the folsk you work with, and to my ethical duties as an attorney, and I’ve had conversations with folks in the firm about posts. I check for conflicts.

Q: Do you give any thought to what Bag and Baggage will be 10 years from now? Denise: No. I didn’t give it any thought when I started it, and it’s fun and useful, and I hope it still will be later on.

Q: On your blogs, Greg and Bennet, the posts seem to be by the firm, not by the lawyers. But people hire lawyers, not firms, much of the time. Having the face of the person who did the post come through might be good. Bennet: I don’t have a good answer, but we do list all of our editors. We decided to make it less personal. Greg: We do a combination of things. For a short post, there’s no real authorship, just editing. But when there’s something big that comes out and requires some limited analysis, we give credit.

Q: Will there ever be a time when there will be lawyers who will do nothing but blog? Clients hire lawyers, but long ago you had one rainmaker — the social guy — and technicians. Denise: I think you’ll see peopel give that a try. It’s one approach to trying out the tools. But now, everyone has to be a rainmaker in one way or another, in a way that doesn’t make people feel like craven business mercenaries, and also have a normal life. Blogging has a powerful role to play there. How do we know that you are who you say you are, and you have the traits you say you do? Well, your online trail — and your blog. Greg: Blogging is great because it shows people you know what you’re talking about. If the person showing the expertise isn’t the one doing the legal work, that value goes away.

Q: What do you use to measure the success of your blog? Bennet: I don’t focus on it a whole lot. I sometimes look at hits, and I hear about contacts made because of the blog. I’m not running a cost-benefit analysis on it. Greg: Marketers look at hits. I agree with Denise — hits may not do you much good. It’s exceedingly hard to measure. The more you get your name out there, the more you show your expertise, the more they’re going to call you with a problem. Denise: The tools can tell you some really cool things. When you’re getting hits from uscourts.gov, that’s cool to see. Who knows, it could be the janitor — but it’s interesting to see. Dennis: It depends on WHO the hits are from. Denise: That’s right. Tiny but influential numbers of readers are better than huge numbers of people who are not as influential.

Kevin O’Keefe: There are going to be different ways to measure stats. Most stats packages are free, and you get what you pay for. [*scowl*].

Dennis: Attorneys are crunched for time. How much attorney time is going into writing this blog on a daily or weekly basis, and have you gotten pushback? Greg: There’s an expectation that people will put in a fair amount of hours on these kind of things. Our billables are lower for partners, and this is the sort of thing partners have to do. Bennet: Most of the time investment was on the front end, setting it up. Taking a little time froma lot of lawyers isn’t that much of a hit. Dennis: I spent no time setting mine up, but spend a lot of time — an hour a day — on by blog. Denise: I’m at a firm that recognizes that lawyers have to be out there communicating their expertise. My firm understands that it is an effective publication platform. Also, because I am in an appellate arena, there’s a particular emphasis on writing and new developments.

Q: Why aren’t email addresses on some of these? Bennet: Many of our hits come from the general public, and we didn’t want that kind of response. Greg: We don’t do as well as we could at getting our writers’ names and contact details out there on the blog. Denise: I’m constantly cross-marketing to other lawyers in the firm based on emails I get.

Q: What’s off-limits? A: Nobody wants to make life more difficult for themselves at work or at home, and nobody wants to jeopardize their safety or the safety of others.

Q: You mentioned your time was front-loaded, Bennet. How long from idea to launch? A: Ninety days. The hardest thing was figuring out what we wanted to cover. We wanted a public sphere making available documents and news of interest to people following the situation. It took a lot of work to sift through the types of information to decide what to include. Dennis: When I first started, I went live within 24 hours, but I didn’t put my name on it. Some people do a private blog for a few weeks first. Bennet: Another group of lawyers had already started blogging by the time I started.

Q: What’s going to happen with New Orleans? Bennet: I have a presentation on this. By September or October, you could visit the tourist areas and you wouldn’t know there had been a hurricane. If you travel north toward Lake Pontchartrain, it will look like Berlin at the end of World War II. Of you go East into Mississippi, you’ll see areas the water was pumped out of that haven’t been touched since. It’s horrific to see. Until there’s a commitment from the govenrment as to what the levees will look like, the insurance companies won’t write policies; without insurance, people won’t move back in.

Q: Does podcasting have any place for lawyers in the future? Denise: Oh, yeah. Both internally and externally. The legal community isn’t that technologically innovative, though, so it will take some time.

Q: Advice for jumping into the process? Bennet: Talk to everyone in your firm that you want to participate with and make sure you have your game plan down. The last thing you want is to set up your site and then have partners coming in with additions. Greg: Look at what you know, and consider how best to communicate it. Find your own voice and your own target audience. Make it fun. Denise: Know what you know, but also know what information you’re processing and approach blogging from the standpoint of making it useful and compelling to you first. Other people’s aggregation rocks, and yours does for other people.

I’m liveblogging from Blog Law and Blogging for Lawyers, presented by Law Seminars International.

Glenn Otis Brown:

[He’s product counsel at Google, in addition to the stuff in the bio linked above.]

Tools. Blog-related tools Google runs include Blogger, BlogSpot, Orkut, Google Pages, Google Blog Search, and Google Reader.

Blogs. There are a lot of Google blogs. Each product has a blog. We tell employees who blog personally to stick to their NDAs and other confidentiality agreements. There are a lot of internal blogs, too.

Law. With regard to defamation, we rely on the CDA. We aren’t in a position to be arbiters of the truth. The EFF Legal Guide for Bloggers is a good resource for this sort of question.

With regard to copyright, we rely on section 512. We get a lot of complaints that don’t meet the 512 requirements.

When we do take something down, we submit the letter to chillingeffects.org. This provides a public reason for any edits made to the database.

Policy. We sometimes take action even though we don’t necessarily put a splash page in front of pornographic or otherwise objectionable content. That also takes them out of the random rotation.

Q: Are there localized versions? A: Nope. Q: How do you deal with French laws against Nazi speech? A: Our position is that this is a U.S. service. This gets us blocked in, say, Iran, but that’s the price we pay.

AdSense. He talks about the Christian Science Monitor article on “Google’s Hidden Payroll.”

[Here we start Q&A with both Lauren and Glenn.]

Q: How does the net neutrality debate shake out in Congress? Lauren: It’s hard to predict what Congress will do, but their hand may be forced by the telecom companies’ actions in the market. We’re hoping to see tech companies step up their efforts to keep the net end-to-end.

Q: What’s to stop Google from refusing to pay if the telecom companies shake them down for access to the pipes? Glenn: Broadband isn’t a very competitive market, so relying on the market to work isn’t great.

Q: How many staff does it take to deal with the flagging? Glenn: It generates a lot of work, but it’s important.

Q: Are you looking at copyright questions on the merits? A: Sometimes. The obvious cases get responses saying that you haven’t alleged a valid copyright interest.

Q: What about 2257? Is this a problem? Glenn: We’re engaged in policy discussions in Washington, but things haven’t changed too much yet.

Q: What about splogs? Are you doing more than 512 requires? A: We’re making it harder to create accounts with a bot. We haven’t taken any legal action against sploggers, but I wouldn’t rule it out.

Q: What is an ideal to combat the telecom lobby on net neutrality issues? Primarily nonprofits? What’s most effective? Lauren: Not just nonprofits. Companies need to step forward and make the business case.

Q: Are private networks’ rules a threat to net neutrality? A: Tiered access in emergencies is fine, but the trigger must be neutral. Q: There are several kinds of networks — they’re not all the same. Is the assault on network neutrality going to be structured in a way that threatens all networks equally, or will some (like retail customers) be more threatened than others? Lauren: I don’t know enough about your clients to say much.

Q: Is this whole vague description of “favoring some content over other” is the problem with getting traction on the Hill? Glenn: Net Neutrality means lots of different things to lots of different people. Vint Cerf’s testimony before Congress was very clear, and Google stands behind it. [Cerf, who invented large chunks of the internet’s architecture, works at Google now.]

Q: Senior VCs I talk to say it’ll never happpen. Are they in denial? Also, is this different internationally? Glenn: On the first, I don’t know; on the second, there’s more broadband competition elsewhere. Lauren: I hope the VCs are right. But telecom companies are a strong business interest in favor of a tiered internet. [She talks about Susan Crawford’s talk at the Cultural Environmentalism conference.]

I’m liveblogging from Blog Law and Blogging for Lawyers, presented by Law Seminars International.

[A programming note: I spent an exceedingly enjoyable summer during law school working for Lauren Gelman at the Stanford Law School Center for Internet and Society.]

Lauren Gelman:

The issue is network architecture. The net has eliminated the need for intermediaries in the market. An open, neutral environment is necessary for blogging to thrive. Spectrum policy and network neutrality is terribly important for bloggers.

Network Neutrality. What is network neutrality about? Well, all bits are equal. The network doesn’t need to know what’s in the packets. The network shouldn’t be able to ban certain programs or certain types of devices, or to favor certain traffic over other traffic.

In 2004, FCC Chairman Powell set forth four principles of network freedom. [PDF of Powell’s speech.] Network users may access the lawful content of their choice; may run applications and services of their choice, subject to the needs of law enforcement; are entitled to their choice of legal devices that do not harm the network; are entitled to competition among network and service providers.

There is currently a live policy debate about network neutrality, and whether it should be embedded in any revision to the 1996 Telecommunications Act.

Spectrum. Spectrum is like the air we breathe, but it’s licensed by the government. Running wires is expensive, but transmitting radio signals is relatively cheap.

The most desirable spectrum is already licensed. The government has left unlicensed certain less desirable wavelengths.

Why is this important to bloggers? It allows us to step outside wired connections and blog from anywhere. It also facilitates competition on markets for services bloggers use.

Perhaps the movement toward participatory media changes the First Amendment analysis in balancing protections for listeners and speakers [– spectrum auctions, the scarcity rationale, Red Lion, all that].

NBC v. United States: Radio inherently is not available to all, and is thus subject to regulation. So what if radio really could be available to all?

Red Lion v. FCC: The scarcity rationale. “It is the right of viewers and listeners, not the right of broadcasters, which is paramount.” So what if antennas were smart?

ACLU v. Reno: Red Lion doesn’t apply to the internet.

Why should bloggers care? The net has eliminated intermediaries, but the people who own the wires may attempt to introduce themselves as new intermediaries.

I’m liveblogging from Blog Law and Blogging for Lawyers, presented by Law Seminars International.

David Hricik:

This really is applying old law to a new form. There’s no new ethics for blogging — we’re just applying existing rules. There are problems, but it’s generally applicable.

The same people who will decide defamation issues will decide ethics issues. Many judges don’t know what blogs are.

I blog on Legal Ethics Forum. [With my friend and prof David McGowan!]

A lawyer’s blog could harm client relations, harm intra-firm reputation, cause improper ex parte contact, waive confidentiality, advertise improperly, constitute the unauthorized practice of law, waste firm resources, cause IP problems, or constitute admissions in malpractice litigation.

Harm to client relations. While “ethical”, some statementc cause problems with clients because they’re embarrassing. A large echo is possible. Flame wars, badmouthing other firms and lawyers semi-anonymously, etc. Don’t say dumb or mean things about your client or your firm (or at all).

Ex parte contacts. The ease of communication available on blogs implicates Model Rule 4.2. That rule says no knowing material ex parte communication with represented persons — but represented persons include employees of the corporation you’re suing in some circumstances (employees whose conduct is an admssion, whose conduct was at issue in the suit, etc.).

The “knowingly” requirement is tough. In the real world, the lawyer needs actual knowledge that the person is represented by counsel. The LA and Oregon bar have issued opinions that seem to apply a “should have known” approach, which is probably wrong.

“Communication” is also limiting. It’s not improper to go to a blog run by a party represented by counsel. No problem if a represetned person reads your blog post about the matter. But you shouldn’t go to a site run by a represented person and discuss the matter. You should dissuade represented persons from posting about the matter if you knows the person is represented by counsel.

Q: Isn’t a blog comment like an open letter? A: It’s the invitation to response that creates the problem. You’re not supposed to induce represented persons to violate the rule. An open letter published in the paper doesn’t say that. Someone who doesn’t understand blogs would certainly consider that a communication — like a letter, not an open letter.

Lawyers still have an obligation to dissuade the disclosure of confidential information.

Say I just run across confidential info on the net. Do I still have to dissuade? Probably not.

Q: Does this extend to having to warn people ahead of time not to post confidential things, or does it arise after the stuff is posted or almost posted? A: Well, might be a good idea. Probably not. Make clear it’s public, though. Any obligation on a third party site? Probably not. But if you start questioning them under some pseudonym, you’ve probably induced.

Confidentiality. This covers all information relating to a representation, not just embarrassing and secret information. Can you blog about a matter by genericizing it? If it’s “identifiable to particular cases or controversies”, there’s a problem. That may not be possible. Mask the client identity; avoid blogging about ongoing matters; it’s more appropriate if the information is already public.

Q: How about posting briefs? A: It’s harder than it looks. There’s weird law about confidentiality of public information.

Lawyers violate this all the time — they hypothesize, but not nearly enough.

What if somebody posts about a case you’re working on? Do you have to stop them? Can you use it? (Does it matter whether they know you’re a member of the audience? Do you have to tell them?)

Advertising. Is a blog an ad? Well, if it’s an ad tha thappens to have blog functions is still an ad. How about if it’s just a blog? The Kentucky bar association compromised — as long as you submit the page as an ad to the bar association, you’re fine.

Unauthorized practice of law. People ask legal questions on listservs all the time. If you’re providing advice to someone in a jurisdiction in which you’re not licensed, that could be UPL. There’s some authority that you need a disclaimer on everything.

Admissions. A med. mal. lawyer says at a CLE that you always have to hire an expert and get all the medical records. Somebody hires him and he doesn’t think it’s necessary to do that. The case goes south; the client sues; she seeks to admit the statements at the CLE. the judge let the evidence in as an admission.

I’m liveblogging from Blog Law and Blogging for Lawyers, presented by Law Seminars International.

The panel is moderated by Cathy Kirkman.

The issues are manifold. Privilege, anonymity, the line between bloggers and journalists (assuming such a line exists), etc.

Bloggers’ Perspective: Terry Gross, Kurt Opsahl

Kurt:

There was an oral argument in the Apple v. Does appeal yesterday. In December of 2004, Apple filed a lawsuit against a group of Does who they believed had misused their trade secrets. In the course of that litigation, they issued subpoenas to the host of various Apple news sites. The Does moved for a protective order; the trial court denied it; the Does appealed, and oral argument was yesterday. It was an unusual format — in the initial part, the Does argued, followed by their amicus, then Apple, and their amicus, the court took a 30-minute recess, then came back for more argument. “The First Amendment protects journalism, not journalists.”

There will be a ruling within 90 days.

Terry:

At the same time that Apple filed against the Does, they filed against my client, ThinkSecret, which turns out to be run by a Harvard freshman. They sued not only for the identity of the leaker, but also for trade secret infringement. Apple has a lot of nerve to file this suit. If this had been the NY Times, everyone would have called it a scoop. They didn’t disclose source code, they didn’t do anything that would help a competitor much — they just talked about product launches before they happened. Trade secrets don’t protect the timing of release of information to the media. They thought the sites would just fold. It’s lucky the EFF exists.

We told Apple there was a clear First Amendment bar to the suit; we filed an anti-SLAPP motion. Bartnicki is on point.

In our half, Apple has backed down a bit but hasn’t dismissed yet.

Trade Secret Owner’s Perspective: Marc S. Martin

I have to be careful — my firm represents Apple, though not in this matter.

As a general matter, the issue about a company’s desire to control the release of trade secret information is fairly critical. Controlling when they’re released can be critical. There can be significant consequences springing from the timing and circumstances of the release of proprietary information. I agree that there is a lot of case law that speaks of matters of public concern, and how the First Amendment can trump. But even in Bartnicki, the court said it didn’t apply to private matters (like trade secrets).

Q: Is this a question of what’s a trade secret, or is it a valid trade secret against the First Amendment? A better hypo might be the Mike Lynn Cisco situation. A: Specs, in a competitive industry, can be importnat if the product is going to be disruptive. What’s the difference between publishing and giving it to the archrival in advance? This is private proprietary information. If it’s a whistleblower circumstance, or there are issues around lawfulness of corporate conduct, or a public health issue, it might be a different story.

Media Law Perspective: Bruce E.H. Johnson

I think there’s a sliding scale here. Imagine a year ago you had some people talking about the Sony rootkit. That’s a matter of public concern, for sure. Is it purely private, or is a matter of public concern.

Q: Does the nature of dissemination matter? Is “Hey, look at this leaked thing!” different from a serious discussion of the information? A: The problem is that judges know nothing about technlogy. “We’re talking about people who, instead of getting computers for their eighth birthdays, got briefcases.” The courts have recognized that established media outlets distribute matters of public concern, since you’ve got to be if there’s an audience. The Washingtonienne case is relevant — Wonkette picked it up, and there were problems.

The $30,000 issue is that the First Amendment protects the press, but we must define the press eventually.

Discussion:

Kurt: Why not use the Shoen test? There are some weird sheild laws out there — Alabama doesn’t include magazines, for example. But for the purposes of the First Amdendment, it’s everything that’s a vehicle of free expression.

Q: What about the various levels of privilege? A: Freedom from subpoena is qualified; confidential source revelation is usually absolute as a statutory amtter, but qualified as a First Amendment matter.

Kurt: The California constitution provides additional help to journalists. It’s fairly broad, but has not yet been fully tested.

Q: Does the case law equate privacy protection and trade secret protection? Could you elaborate on the public concern test and how that plays out for 1A purposes? Is it a balancing test that everybody must engage in?
A (Bruce): “Public interest and concern” is what gets us into Sullivan. Then we’ve got Dun & Bradstreet. If you don’t have that, you drop down to English common law circa 1890, placing the burden of proving truth on the defendant. (Terry): That’s the interface between bloggers and mainstream media. Everybody has to do the same analysis. Is this private and salacious? This is what we look at when we do libel clearance. This also goes the other way; any of us automatically have a 1A right attached to our dissemination. The little people don’t have the resources to fight against the big guys. The law is used as a tool of oppression.

Q: Do the old definitions of public concern make sense in the blog context, where there are intense communities that care about things everybody else doesn’t care about? A (Terry): Bunner sheds some light on this. Bartnicki applies. It just has to be of concern to some large enough group of people. (Marc): This area is uncertain, and there’s risk. Who knows how the analysis will come out?

Bruce: Try to approach a situation where you want these protections as if yo’re a journalists. Make a transformative use, not a gotcha. If Jessica Cutler had talked about Washington law and politics and the typicality of power- and sex-obsessed more, she’d have a better case, arguably.

Q: Wasn’t the EFF in Bunner? Didn’t you say posting code was political speech? [He’d said that this isn’t like posting code earlier.] A(Kurt): [He discusses Bunner a bit.] About small communities, small offline publications get full protection, even if they have relatively small circulations.

Q: What should the recipient of a tip do? A(Terry): Journalists do this all the time. The key is whether the journalist does anything wrong in OBTAINING the information. If it’s source code or something, it’s a very tough call.

Q: Journalists are third parties; bloggers are personally involved, right? A(Bruce): Newspapers have editors. Bloggers don’t.

Q: To what extent would a commercial speech analysis invade, if it’s a corporate or corporate-affiliated blogger? A(Marc): Posting privileged information is obviously verboten.

Q: What about anonymity? A(Kurt): You have a 1A right to speak anonymously. There’s a test — there are variations, See’s Candy, Dendrite, etc.

[There’s a discussion of getting the identities of anonymous speakers by civil process and in the course of a criminal investigation.]

Q: Does the result of the Apple case dictate national policy for blogs? A(Kurt): It’s persuasive authority within California; other states may look at it. (Bruce): So long as there are relatively few cases, this will be an important one.

Q: Is this part of a trend? A(Kurt): From a legal perspective, there’s no distinction between putting info on a website and publishing via blogs. And there’s not much of a difference betwene that and traditional publishing. Is there “law of the blog” — is this “law of the horse“?

Bruce: Take a look at your insurance coverage. Should you be buying the same sort of insurance that the mainstream media does?

Q: If every goofball has a blog, how do we insure? A: There are products out there that help with that. If you’re an individual, check your homeowner’s or renter’s insurance policy for defamation coverage. Consider umbrella policies.

Q: You at EFF represent those who don’t have insurance. Talk about what EFF is and where you get your funding and whether you have enough resources. A: The EFF is member supported, under-resourced to do all of the cases they want to, etc. [Go give them money.] Bruce: Reporters Committee for the Freedom of the Press is great, too.

Q: What about the proposals for a national shield law? A: Bruce: After the Judy Miller problem, there were various proposals. The controversy turns on whether bloggers are protected, and the latest draft (Luger’s) doesn’t include protection for bloggers. But those bills won’t get past the White House in this administration anyway.

Q: Back to insurance. Could my blog host offer me insurance? Can Yahoo and Aetna talk? A: [That would be cool.]

Q: How should bloggers think of themselves as public figures? A(Bruce): This is really interesting online. Classically, it’s “unique or special access to the media”, so they could talk back against the defamation. The internet has leveled that playing field a lot. As a consequence, a blog may have the same reach as a newspaper. Can’t wait to see a blogger as plaintiff.

Q: Couldn’t the flip side happen, too, so that nobody is any more public than anyone else? A(Kurt): Maybe a Technorati search will determine whether you’re a public figure. Bruce: Look at MySpace — different public/private boundaries in the next generation.

Q: How about territoriality? A: The jurisdiction cases are all over the map — they’re website cases. The general rule is that unless you’re specifically targeting that state, you shouldn’t be sued in that state. Overseas, the rule may not be so simple.

Q: How about the interactivity issue? Do comments make a site interactive? A(Bruce): The early jurisdiction cases focused on passive versus active websites. These all turn on commercial transactions. Comments aren’t the same sort of activity.

Q: What’s next? A(Kurt): Pin down the federal constitutional protection, then the question will be individual for each state’s shield laws. (Bruce): The conference materials include what we did in WA with the shield law, which is designed to be media-neutral but not cover all bloggers. That bill nearly got through. I’m hoping it will be reintroduced next year. There are bills in many other states.

Q: Why did the bill die? A(Bruce): USAA, an insurance company, was eager to get back at the media, so they hired a lobbyist who kept it bottled up. Also, the definition of bloggers was very tough. It’s hard to create a privilege that applies to everyone — you’ve got to cabin it.

Q: Why isn’t a 13 year old on MySpace capable of journalism under certain circumstances? A: She is, sometimes. It’s like a student newspaper.

I’m liveblogging from Blog Law and Blogging for Lawyers, presented by Law Seminars International.

Mia Garlick:

Blogging and CC are old friends. Early bloggers used CC licenses, and like the idea of sharing and reuse. Bloggers want to disseminate their works widely.

Cc licenses enable clear signaling of what uses are permitted and what uses are not permitted. It allows legal distribution and redistribution of blog posts. CC licenses can help you get noticed.

Attribution. This is required by all CC licenses, and can be to the author or to a third party designated by the author.

[She explains the various license conditions available under CC licenses.]

The least restrictive is Attribution; the most restrictive is …

Q: How do we know which elements of the page are CC licensed? A: It’s difficult to make clear what elements are licensed under what terms. It’s a notice issue.

The most restrictive is Attirbution-NonCommercial-NoDerivs.

The license is produced in three formats: Human-readable, machine-readable, and lawyer-readable.

It’s international — 30 jurisdictions. We just got into China, where we were hailed as increasing copyright protection in the newspaper. I guess it depends on where you’re coming from.

Details for lawyers! They don’t limit fair use rights. they’re nonexclusive and irrevocable. The CC licensor enters into a separte license agreement with each user; the license runs with the work. You can’t thwart the license’s purposes with DRM. There are no warranties. The license terminates immediately upon breach. The licensor may withdraw the work to new licensees at any time.

Q: How do you withdraw? A: You just pull the cource copy, but people who get copies of existing copies are still licensees.

Q: Is this geared to individual bloggers, not corporate bloggers? A: There are a lot of individuals who use it. In terms of who uses it, the categories are idealists, pragmatists (getting the work noticed), educators (OpenCourseWare), artists who sample giving back to the commons, artists engaging in a creative dialogue with their fans, and citizen journalists.

Two recent court cases. Curry v. Audax, Dist. Ct. of Amsterdam (March 9, 2006) (CC license applied to images; D failed to comply with attribution and noncommercial limitations, and was infringing). SGAE v. Fernandez, Lower Ct. of Bajadoz (Feb. 2006) (bar that played CC licensed music did not need to pay collecting society, since the authors were not collecting society members).

It’s possible to embed license elements in a document, including feeds.

Tips! Be specific about what you’re licensing — text? design? photos? Identify differently licensed content. When you’re getting contributors of content, make sure you’re telling them what license their content will be released under.

The question: Is “Syndicate this site! CC Attribution-NonCommercial” contradictory? Depends on the circumstances. If you choose a NoDerivs license, you can control the amount of content that goes into the feed. What about fair use? What about NonCommercial? There are draft guidelines on NonCommercial out.

I’m liveblogging from Blog Law and Blogging for Lawyers, presented by Law Seminars International.

Rick Danis is a Senior Legal Director at Yahoo! Inc. where he provides legal and business counseling to the Yahoo! Media Group, including the Yahoo! News, Finance, Games, Health, Sports, Tech, Education and Yahooligans sites. He has worked extensively on business and licensing issues concerning the aggregation and distribution of blogs.

Rick Danis:

We’ll cover types of content syndication, legal and business issues, and then examples.

[The same Technorati stats we got a few times yesterday.]

Traditionally, content syndication was distributing content for money. Now, it’s distribution for traffic, money, PR, enthusiasm, etc.

[He defines RSS and describes its benefits.]

The disadvantages of RSS are the lack of a deep business relationship and the lack of direct monetization, and the lack of feedback and control.

You should have terms of use for your RSS feeds. Mention that use of your blog through the RSS feed is for personal, noncommercial uses, with an attribution requirement, reservation of ownership rights, reservation of trademark rights, a prohibition against altering the content, the right to discontinue the feed, and make it subject to the overall ToS.

We’re licensing IN or OUT rights to blog content. This is a lot like traditinal content syndication. There’s a 1-to-1 relationship; you cna negotiate for what you want.

Some example of content we license include Wonkette, Huffington Post, etc.

What are the rights being licensed? Rights to “distribute on the internet”? Rights to distribute in other media? Wireless distribution rights? Future technologies? Translation rights? Worldwide scope? (Restricting it to a specific territory is really tough and unreliable.)

What’s is the goal of the license? Traffic, money, PR, sales, etc.

A blogger might want links back to get traffic — with specific obligations for number and placement of links. A licensee wants compelling content, and may not want to link back to send away traffic.

Money-wise, we could have a license fee, ad revenue share, or minimum payment plus ad revenue share. Licensees may prefer aad revenue share, since there’s no out-of-pocket.

In terms of marketing, the blogger may want promotion and press releases, links driving content to the blog, etc. The licensee may want the blogger to commit to trade show or press aprrearances, or a revenue share on traffic sent back to the blogger’s site (book sales, for example), or placing restrictions on where links go on the blogger’s site.

In terms of owneship, the blogger will want to maintain ownership; if the licensee wants to own it, they may want to just hire the blogger.

In terms of exclusivity, the blogger will want a short term and more value for making it an exclusive deal, and perhaps an obligation to use the content. The scope of exclusivity is negotiable and varies widely — use on the blogger’s own site, in a book, etc.

[He describes the types of Creative Commons licenses.]

There are various ad services, but few people are making much more than the site costs them to host. Ads are easy to set up at little cost. You must comply with program policies, though, which include placement and number of ads, prohibitions on certain kinds of content, and compliance with certain site guidelines.

Blog aggregation sites include Gawker Media, HuffPost, Technorati, BoingBoing, etc. [This seems to mash together lots of different models.]

Other business uses of blogs. We’re hiring a lot of in-house bloggers for specific projects. It can act as a free sample of paid content. In-house bloggers are independent contractors or employees who blog about specific expert subject areas, such as health.

[Talks about Kevin Sites in the Hot Zone.]

Many online companies have incorporated blogs about theirservices. flickr and del.icio.us, for example, have their own blogs.

Old businesses are using blogging and bloggers — GE met with environmental bloggers to build support. Wal-Mart was pushing scoops to bloggers who wrote positive news about them, but it was getting posted without revealing the source.

Yahoo finance columnists have links to Yahoo shopping to buy the columnists’ books.

Hiring bloggers. The independent contractor versus employee issue is important. It’s a question of ownership, as well.

Policies are important, and journalistic ethics are sometimes applicable.

Q: Is posting an RSS feed an implied license to use it in an aggregator like My Yahoo!? A: Yes. Q: What if it’s an unauthorized RSS scrape? A: That’s a tough question.

Q: What about China and Chinese bloggers? A: I don’t work with China; I can’t comment.

Q: What’s the decisionmaking process like in deciding who to license? A: It can happen very quickly. Our business development people make deals when we need deals made.