joegratz.net

I’m liveblogging today from the University of San Francisco School of Law Fair Use Symposium. The first panel is called “Real Lawyers, Real Cases.”  The panelists:

• J. Thomas McCarthy (USF, Moderator)
• Annette Hurst (Orrick)
• Jason Schultz (Berkeley)
• Corynne McSherry (EFF)
• Bill Coats (White & Case)
• Ray Nimmer (University of Houston Law Center)

First, Bill Coats:

User Generated Content and Copyright Issues from the Entertainment Industry Point of View.

He represents many content owners, including one Japanese anime producer whose Japanese-broadcast shows appear on the internet, with English subtitles, before they have a chance to subtitle them and show them on Cartoon Network themselves.

[He does a very good presentation on the latest issues in online copyright law, including inducement and the "making available" question. Unfortunately, he runs out of time before going into depth on issues of fair use.]

LucasFilm, his client, sponsors interesting UGC contests.

Next, Annette Hurst:

The parody branch of the fair use defense, focusing on Mattel v. Walking Mountain.

The client was Tom Forsythe. He took photos of Barbie in “compromising positions with vintage kitchen appliances.”  Most of his sales of art prints were to Mattel’s private investigators. He also had a postcard for sale. He also had it on his business card. The precipitating factor for the lawsuit was going up on the web.

Mattel brought copyright claims based on its sculptural work (“the head of the doll without adornment”), trade dress claims (the appearance of the doll with adornment), and trademark claims for the word mark “BARBIE.”

One key issue was whether the works were satire or whether they were parody. (This was spun out in the Dr. Seuss case.) For example, the Barbie Enchiladas photo, Forsythe said, embodied his view that Barbieis being sold to us as a consumer food concoction that we are to blindly internalize. It helped atmospherically that the work had been lauded in a competition by Guggenheim curators.

Mattel struggled to argue that it’s simply a doll, not a symbol with social importance. The struggle they had with this is porrayed best in connection with Cutting Board Barbie. Mattel argued that this was a distrubing image, but was forced to concede that there’s more to the doll than a hunk of plastic. Once the photos stop being about just the doll, the parody case is close to being won.

Is satire/parody a specrum or a binary? From whose perspective — the artist’s, the public’s? Message evaluation is more often seen in trademark cases. Indeed, Mattel put in a survey. But if you’ve got a survey, you’re gonna beat summary judgment. So they argued that parody is a question of law — and the Ninth Circuit agreed.

And how do you prove a negative to win on summary judgment on the fourth factor? They put in an economic expert based on Mattel’s existing works and licensed derivatives. The economist said they’re not in the same market. Mattel responded that they have licensed high-end photographic works in the form of coffee table books.

Lucasfilm has realized that if they harness the market for UGC, even for parodic works, they will have a very good case for defeating the fourth factor even for parodic works.

Next, Ray Nimmer:

“Fair Use: Major Markets or Small Victories”

There are several views of fair use — should you protect small incursions, or is this an exercise in information market engineering? That is, is it “no harm, no foul” or a market allocation principle that allocates part of the market to non-owners?

There is a divide between “global” arguments — that a given clas of conduct should always be immune from copyright liability — and individual arguments that are much more specific to the facts of the particular case.

The “market harm” prong can be tantamount to saying “I’m not there yet — steal it from me.”

He’s involved in Scientology v. Leterese, in which he’s suing Scientology for using a sales book. They said it was de minimis, fair use, and asserted laches.

He thinks fair use should be about personal beefs, not about allocating markets among large companies. It’s meant to create a safety valve for claims that are stupid.

Corynne McSherry and Jason Schultz:

“From Due Process To No Process?: The Role of Fair Use in DMCA Takedowns”

Jason:

Not all fair use questions are impossibly vague. It can be fairly straightforward. Also, what does “fair” mean? Well, one of the things “fair” means is “due process.”

Before the DMCA, you had to file a lawsuit — and comply with Rule 11.

[He describes 512.]

[He discusses the Michael Crook, Electric Slide, Geller, and Truthiness/Falsiness cases.]

Corynne:

[She discusses the Dancing Baby case quite compellingly.]

Her proposal: OSPs should do human review when there is a counternotice, and immediately restore in the case of clear fair uses.

I’m at the Business Success Using Open Source Software panel at the ABA Annual Meeting in San Francisco. The participants are:

• Katherine Spelman (moderator, Cobalt LLP)
• Pam Samuelson (Boalt Hall)
• David Kappos (IBM)
• Karen Copenhaver (Choate Hall & Stewart; fmr. GC, Black Duck Software)
• David Marr (Sun)

As with all of my liveblogging, these are my impressions of the proceedings and are not for attribution to the participants, and certainly not to me.
David Kappos:

OSS has come a long way in the 20 years it’s been on the scene. It started as a set of programming tools put out by the FSF; we lawyers eventually came to understand and like the GPL, turning copyright law into a tool of inclusion rather than exclusion.

OSS has now grown in an amazing way; there are more than 150,000 OSS projects, dozens of license agreements, Wikipedia, world-class programming tools, Firefox, Linux, and a myriad of business models that make OSS as a development paradigm not only profitable but preferred.

We can’t find a software start-up in the Valley that isn’t using OSS. If you don’t think your clients are using OSS, you have a surprise coming.

And now governments are permitting and even mandating the presence of OSS in their bidding processes.

This brings us to some questions: How does business get profitably conducted around free software? What are the roots of OSS? Can it apply to other fields? Why haven’t other fields adopted open development models? How does the OSS model that works so well for copyrights work for patents? What are the limits of the OSS model, and what’s coming in the future?

A number of business models have emerged around OSS:

• Support and service. This is the Red Hat model. Software is distributed under an OSS license, with services offered for a fee.
• Building block model. This is the TiVo model. Companies are using OSS as a component of their business — embedded Linux, etc.
• Add-on solutions model. This is the IBM model. Using OSS (typically Linux) and offering solutions that build around that and integrate it into larger situations. This is an extremely successful business and scales well.
• Proprietary extension model. This involves developing proprietary software that links to OSS in conformance with the GPL, then donating that proprietary software to the community as its competitive advantage fades. IBm does this with WebSphere.

Most of those business models leverage shared infrastructure. This is all about avoiding spending money on unproductive effort and spending it close to customers’ needs.

Can this work outside of software? Yes. IBM instituted an organization called power.org, where we put a giant amount of architecture information about the power architecture (which is a microprocessor architecture) into the public domain. It’s working: there’s a vibrant community.

What about pharma? An organization called CAMBIA in Australia licenses bio innovations under open principles.

And it works for information, too: Wikipedia and, indeed, the GPL3 process itself. Open development will work wherever there is commonality of problems, opportunity for profit or reputational gain from contributions, and call for open standards for interoperability.

It can work for patents as well as copyrights. IBM donated 500 software patents for free use in OSS. We wanted to make patents less threateing to OSS — and even a tool to promote OSS. Many other companies, including OBM, have announced more pledges since then. Then there was the formation of OIN. Google just joined as a licensee. This is rationalizing the discoursein the OSS/patent area.

Also, Peer-to-Patent is bringing the two areas together. It’s allowing experts from all over the world to submit and comment on prior art. It’s apparent that this is going to be the wave of the future — “the USPTO meets the 21st century.”

So what about efforts to capture the millions of lines of OSS as prior art? We’ve been working on that — there’s lots still to do, but the idea is to categorize the code by patent classes so that they can easily be used by patent authorities.

OSS is on its way to turning patents to a positive force for OSS.

OSS is going to continue to flourish and grow in areas other than software. We had a CodeJam to help solve major world problems, and taking the IP stress out of the system allows people to collaborate better.

OSS is here to stay; it will grow; it will spread to other problems. It is showing that, like copyrights, patents can not only coexist with OSS but fuel its growth. The OSS model with thrive alongside proprietary development, and will create plenty of legal issues along the way.

Pam Samuelson:

I’ll be talking about OSS and competition. I got interested in this when I taught a class with Mitch Kapor. I’ve also written a paper on it.

Two perceptions:

• Proprietary software and OSS are in a deadly war, and one will strangle the other. (This is hyperbole. Eben Moglen writes about “triumph” over proprietary software; Craig Mundie writes similarly harshly about OSS. Pay no attention.)
• FOSS is hostile to IP. (This is also false. Some people who like OSS are also hostile to IP, but nothing inherent in OSS is outside the standard IP narrative.) The specifics of the license don’t matter that much to the developers. It’s a social constitution, a social norm. Not only will you get sued if you violate the license, but you’ll be shunned — and that’s sometimes worse.

I agree with David that FOSS and proprietary software can coexist in the same products, and will increasingly do so. Also, there are some sectors where one or the other will just prevail: avionics software will probably always be mostly proprietary.

But some places, there is head-to-head competition. IE v. Firefox. Linux v. various server OSes. You get more innovation in such situations, and that’s great. Firefox is driving innovation in IE, and vice versa. MySQL has put price pressure on Oracle. And so on.

OSS has significant development advantages: spreading out common work, a supportive community, and it can be (though it is not necessarily) cheaper. It’s certainly easier to modify internally, by its nature.

There are some risks. One is, “who do I call if it breaks?” For this reason, support services can be sold. Forking can lead to incompatability. Patent risks are still real. Linux may now be in a really good place, but not all projects have companies throwing patent licenses at them. And it’s not easy to transition a proprietary product into a successful OSS project. (Netscape had to be rebuilt substantially to make it into an OSS product.)

Overall, OSS can be less risky: less investment than proprietary development, and somewhat less chance for financial reward.

David Marr:

I’ll be talking about the GPL. The area that can be most difficult for us as lawyers — copyleft. Ask them:

• What GPL code is being used?
• What form are the bits in — binary or source?
• What has been done with the bits?

Then you get three hard questions:

• When is the source obligation triggered?
• What must we release?
• How must we release it?

[He has very good slides that explain the answers to these questions, including an amazing slide with a spectrum of situations drawing the line when copyleft attaches. I'll try to get a copy and post them.]

Karen Copenhaver:

Design that Matters is a company that started a number of years ago. You could graduate from an engineering school without having anything you designed get manufactured. These kids got this idea that people should put their designs up against manufactured products — and that they could put together a portfolio of products that NGOs around the world needed and use them as student design projects. Then the students could put their designs back into the portfolio, if they wished.

The first product was an IV clamp. (They were quite non-intuitive.) The second was a projector for schools. (Turns out school is at night, and there’s no light for books.) The third is a baby incubator. (Existing incubators required consistent electricity and frequent changes to the filters.)

Building a world where it’s easy (but not mandatory) to share — with an open source design model — was the goal. It’s a wonderful story. We’re five years into it, and we’ve never had an IP issue. The sharing rate is very high. The students realize the joy of being permitted to share.

When I think about OSS, I think about making things possible, like Wikipedia, that could not have been imagined before.

The idea I wanted you to get was that world-leading companies are embracing this model as a way to find efficiency — not just as a legal curiosity or a project for hairy geeks. None of us is alone, and OSS is a very sophisticated acknowledgement of our interdependence.

It has restored competition to the software industry, and the compeititon is perfect, due to the ability to fork any project. There’s more and more infrastructure that none of us wants to build alone. It is providing, and is going to provide, a platform for innovation.

[Then some very interesting questions and answers, which went too fast for me to write down.]

Denise Howell has the scoop on today’s California state court decision upholding bloggers’ anonymity in Apple v. Does.

I previously posted coverage of a discussion of the case at the Blog Law and Blogging for Lawyers conference. 

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.