July 2005 Archives

Gratz on Dvorak on Creative Commons

Joe Gratz corrects John C. Dvorak's muckraking mistakes about Creative Commons and copyright registration: Dvorak on Creative Commons: “Humbug!”: "Some of his criticisms are valid; others, based on a misunderstanding of the Creative Commons licenses or the role of Creative Commons as an organization; others still, based on dangerous misconceptions about the law."

Blogging about blogging

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Blogging is so many different things to different people and includes many different ways of using blogs that it is difficult to peg down any single rule or lesson. This post will attempt to bring together a bunch of links and ideas that I've seen over the last few weeks.

The Dangers of the Personal Blog
The biggest danger of having an identifiable personal blog is the negative impact it may have on one's career. Getting Dooced may become more common as more people blog from and about work, since labor law offers few protections for bloggers.

Today, we get a view from both sides of an employer firing an employee for the employee's blog posts. In today's Times, writer Helaine Olen describes her reasons for firing her nanny, based on reading the nanny's blog: The New Nanny Diaries Are Online: "Within two months of my starting to read her entries our entire relationship unraveled. Not only were there things I didn't want to know about the person who was watching my children, it turned out her online revelations brought feelings of mine to the surface I'd just as soon not have to face as well."

This being the internet, the former nanny posted a response: Sorry to Disappoint You: "If you have come to this little blog today looking for prurient details of a "nanny gone wild" and another "nanny diary" detailing the sordid life of a family she works for, I am very sorry to disappoint you. Contrary to an essay published in the Style section of the NYTIMES, I am not a pill popping alcoholic who has promiscuous sex and cares nothing for the children for whom she works with."

Follow-ups to this story at Bitch Ph.D and Pandagon.

A pseudonymous essay in the Chronicle of Higher Education warned potential college faculties members about the dangers of blogging: Bloggers Need Not Apply

A candidate's blog is more accessible to the search committee than most forms of scholarly output. It can be hard to lay your hands on an obscure journal or book chapter, but the applicant's blog comes up on any computer. Several members of our search committee found the sheer volume of blog entries daunting enough to quit after reading a few. Others persisted into what turned out, in some cases, to be the dank, dark depths of the blogger's tormented soul; in other cases, the far limits of techno-geekdom; and in one case, a cat better off left in the bag.

The AP also took this angle: Blog it now, regret it later? "Blogs are everywhere — increasingly, the place where young people go to bare their souls, to vent, to gossip. And often they do so with unabashed fervor and little self-editing, posting their innermost thoughts for any number of Web surfers to see."

But the personal blog is not the only way to use reverse chronologically posting things to a web page. For individuals and companies, the blog is a way of keeping track of and categorizing new information and sharing that with co-workers, clients, or potential employers.

The upsides of smart blogging likely outweigh the dangers of imprudent blogging. Let's look at two general ways of using blogs for good:

  1. Knowledge Management
  2. Communication and Shameless Self-Promotion

The Private Blog: Knowledge Management
Posting relevant links to a blog is the easiest way of filing such information. It gives you an archive by date and by subject and is searchable. At the job I had immediately before starting law school in 2002, I launched the use of blogs to keep track of information. If nothing else, I found it very useful. Of course, a blog is not the only way to do this-- a wiki or expensive software may be used for the same purpose, but with blogging, it is obvious when the information contained within is dated.

These blogs are not meant to be posted to the internet as a whole. Living on private servers or behind password protection, these blogs will not have the same potential external impact as a public site, but may be substantially more useful, as private bloggers do not have to worry about the rest of the world reading their posts.

Bruce MacEwen, Adam Smith Esq: Blogs As KM Platforms: One Result Is In

After six months or a year, your firm would have a valuable—and proprietary to you—knowledgebase in, to my mind, a near-perfect format: By default, sorted chronologically so that whenever "timeliness" is deemed important, it's automatically presented in that format; archived by category so that subtopics can be immediately zeroed in on; and open to comment threads so that the author's first draft is not necessarily the last word, and ideas can be refined through interchange. Even better, no one has to be trained to create and maintain a blog; as a Sun Microsystems analyst observed, "they're like pencils and paper; people know what to do with them."

Blogs may not only be easier to use than specialized software, but also much cheaper.

Keeping a constantly updated flow of information is valuable. The value of transparency and a flow of information can make blogs a useful tool on the public web, as well.

The Public Blog: Communication and Shameless Self-Promotion
Robert J. Ambrogi: Blogging's contrarians: ""As sure as thesis breeds antithesis, blogging's popularity within the legal profession is drawing some to question its value, mostly with regard to marketing."

The more transparently the blog is used for shameless self promotion, the less valuable it will be as a tool for that purpose. Simply putting forward well-written information is the best way to make a good impression.

In Between Lawyers Roundtable: The Future of Legal Blogging, Tom Mighell elaborates on how lawyers can use blogs to promote their practices: "By publishing regularly updated content in your area of practice, you can become known as a 'go-to' person in that field. Clients and would-be clients will send you work because of the valuable information you provide to them, and other lawyers who read your blog will refer work to you because you are a trusted authority in that area of law."

Kevin Heller emphasizes the importance of having an authentic voice and not trying to be obviously marketing, "Fundamentally, blogs are about connecting with others, not shilling"

For example, Wired editor Chris Anderson addressed concerns about the magazine's subscription policies on his blog: Wired subscription concerns

I normally don't delve into my day job here, but I'll make an exception today for expediency's sake. On Friday, the SF Chronicle's consumer-rights columnist ran a piece about complaints from Wired subscribers that they were getting threatening letters from a collection agency when they let their subscription lapse.
Without using his blog, Anderson would have had to wait until the next issue of Wired or edit his response to fit the constraints of a letter to the editor in the Chronicle.

For aspiring writers seeking to break into a different field, a blog is a cheap and easy way of getting noticed.

Gawkerist blogged about Gawker and eventually got a job at Gawker Media: Nick Denton Finally Pays Us to Stop Blogging: "Many correctly guessed that Gawkerist was a stunt to attract attention and finagle work through nontraditional channels. What I didn't necessarily expect was that the first people to guess this (on day 2 actually) would be everyone at Gawker Media."

Jeremy Blachman managed to turn The Anonymous Lawyer from a blog into a book deal. I wouldn't be surprised if the number of people who have managed to use a blog as an entrée to a book deal, paid blogging gig, or simply a better job vastly outnumbers-- by an order of magnitude-- the number of people fired for indiscriminate personal blogging.

However, these two examples of people who managed to turn their blogs into something more lucrative were both anonymous. Those of us who are looking for work while blogging under our own names may be creating more problems for ourselves with pointless non-proofread posts that have no worthwhile conclusion.

(also posted at AndrewRaff.com)

Redskins Name Can Be Challenged

The Washington Post reports: Redskins Name Can Be Challenged: "The football franchise had appeared to prevail in the longstanding trademark fight when a federal judge ruled in its favor nearly two years ago. But yesterday the U.S. Court of Appeals said the case deserves another look because one of the plaintiffs might have been unfairly denied the right to pursue."

Anheuser-Busch takes Hungary

The AP reports that Anheuser-Busch won in the latest counrty to weigh in on the long-running trademark dispute over the Budweiser trademark: Anheuser-Busch Wins Latest Court Battle: "A Hungarian court has ruled in favor of the St. Louis-based brewer, ordering cancellation for Czech beer-maker Budejovicky Budvar's use of the "Bud," "Budweiser Budvar" and "Budweiser Bier-Budvar" labels in Hungary"

Previously: More Budweiser TM, Beer, Branding and Human rights, This trademark's for who?

Internet Archive and Copy Controls

The NY Times reports: Keeper of Expired Web Pages Is Sued Because Archive Was Used in Another Suit:

Last week Healthcare Advocates sued both the Harding Earley firm and the Internet Archive, saying the access to its old Web pages, stored in the Internet Archive's database, was unauthorized and illegal.

The lawsuit, filed in Federal District Court in Philadelphia, seeks unspecified damages for copyright infringement and violations of two federal laws: the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act.

'The firm at issue professes to be expert in Internet law and intellectual property law,' said Scott S. Christie, a lawyer at the Newark firm of McCarter & English, which is representing Healthcare Advocates. 'You would think, of anyone, they would know better.'

William Patry: The Way Back Machine and Robots.txt:

On July 8th, a complaint was filed in the United States District Court for the Eastern District of Pennsylvania, Healthcare Advocates, Inc. v. Harding, Early, Follmer & Frailey, et al. This is such an extraordinary document that I will break with my usual practice of not commenting on complaints or motions. Those who decry the DMCA as an (attempted) tool of oppression will find more than ample support in this effort. Other laws are implicated too, including some I venture to guess most IP lawyers have never heard of at least in the IP context, for example, a Greta Garbo like claim for 'Intrusion upon Seclusion.' Others, such as the Computer Fraud & Abuse Act and trespass to chattels have become better known recently but are invoked here in a novel way, to say the least. In my opinion (and all this is opinion whether denominated as such or not), the Healthcare Advocates complaint represents a misuse of the legal process.

Jonathan Weinberg, guestblogging at Discourse.net: #$%%^*@#$ Lawyers: "This is silly. The copyright claim against Harding Earley is silly. Setting aside anything else, if there ever were a textbook example of fair use, reproducing a once-publicly available web page because its content was relevant to the proper disposition of a lawsuit would be it. The DMCA claim is, if not silly, at least wrong."

Not classic enough

Newsday reports: AMC judged to be not classic enough:

The American Movie Classics channel runs too many films that are not classic enough, violating its contract with Time Warner Cable, a State Supreme Court justice has ruled.

As a result, Justice Bernard Fried of State Supreme Court in Manhattan said Time Warner Cable, the second-biggest cable operator in the nation with 11 million subscribers, has the right to cancel its contract to carry AMC, which is owned by Cablevision Systems Corp.

Communications Act reform

In a News.com op-ed, Progress & Freedom Foundation fellow Randolph May proposes one model for reform of the Telecommunications Act: Time for a Digital Age Communications Act: "Even while technology forces changes in the marketplace, the 1996 [Telecom] Act's regulatory regime continues to act as a drag on investment in new networks and on innovation in new services. Services are classified based on technofunctional constructs that no longer make sense in a digital world in which a bit is a bit is a bit."

Seeking permission

J.D. Lasica attempts to get permission to use short clips from commercial films in non-commercial home videos: When the studios won't give permission: "This is the quandary millions of us face today: The Hollywood studios demand that we ask for permission to borrow from their works — and then they deny our requests as a matter of course. Here is the paper and electronic trail of my correspondence with the Hollywood studios…"

A taxing prior restraint?

The Third Circut rules that a permanent injunction barring promoting and selling unlawful tax advice is permissible under the First Amendment: U.S. v. Bell (No. 04-1640, Jul. 12, 2005). "Packaging a commercial message with token political commentary does not insulate commercial speech from appropriate restrictions."

(via How Appealing)

John Ottaviani and Eric Goldman offer their list of the Top Internet IP Cases of 2005 (So Far).

More Grokster Links

Pamela Samuelson: Legally Speaking: Did MGM Really Win the Grokster Case?

MGM didn’t really want to win Grokster on an active inducement theory. It has been so wary of this theory that it didn’t actively pursue the theory in the lower courts. What MGM really wanted in Grokster was for the Supreme Court to overturn or radically reinterpret the Sony decision and eliminate the safe harbor for technologies capable of SNIUs. MGM thought that the Supreme Court would be so shocked by the exceptionally large volume of unauthorized up- and downloading of copyrighted sound recordings and movies with the aid of p2p technologies, and so outraged by Grokster’s advertising revenues—which rise as the volume of infringing uses goes up—that it would abandon the Sony safe harbor in favor of one of the much stricter rules MGM proposed to the Court. These stricter rules would have given MGM and other copyright industry groups much greater leverage in challenging disruptive technologies, such as p2p software. Viewed in this light, MGM actually lost the case for which it was fighting.

Richard Posner: Grokster, File Sharing, and Contributory Infringement: "There is a possible middle way that should be considered, and that is to provide a safe harbor to potential contributory infringers who take all reasonable (cost-justified) measures to prevent the use of their product or service by infringers."

Gary Becker: Grokster and the Scope of Judicial Power: "Do we really want the courts determining when the fraction of the total value due to legal sales is high enough to exonerate manufacturers from contributory infringement? Neither the wisest courts nor wisest economists have enough knowledge to make that decision in a way that is likely to produce more benefits than harm. Does the fraction of legitimate value have to be higher than 50 per cent, 75 per cent, 10 per cent, or some other number?"

Anupam Chander and Madhavi Sunder, FindLaw: Apple Rips While Grokster Burns: How MGM v. Grokster Benefits Information Technology Companies: "Given this evidence of inducement, the Court ruled that Grokster could not avail itself of the Sony safe harbor for products with substantial non-infringing uses. That exception to liability, it said, only applied in the absence of evidence of inducement."

Business Week interviews Larry Lessig: "Ten Years of Chilled Innovation": "This is a pretty significant defeat here. Certainly the result is better than what the MGM companies wanted -- because they wanted the Sony case modified -- and [Justice David Souter, who wrote the decision, isn't] modifying Sony. But still, this intent standard...will invite all sorts of strategic behavior that will dramatically increase the cost of innovating around these technologies."

Jon Pareles, The New York Times: The Court Has Ruled So Enter the Geeks: "But the court did not give the movie and recording businesses much ammunition to attack the Robin Hoods of the Internet: those software geeks and culture fans who really just want to share. They are online right now building Web sites that don't make a dime and spending hours writing and editing 'mp3 blogs' - Web page collections of downloadable songs. They hook people up, basically because they can and because people want access to art."

Tom Zeller, The New York Times: The Imps of File Sharing May Lose in Court, but They Are Winning in the Marketplace: "Even the most ardent supporters of Big Entertainment concede that, in the long run, copyright holders are no match for the ability of file-sharing technology to adapt, mutate, evolve and expand. In fairness to Ms. Rosen, it is a stark reality she noted early on."

Legal Fiction: The Court's Big Day: "It’s easy to conceptualize Grokster as a David vs. Goliath, or as the little guy vs. the man. But it’s much more than that. The record companies have no love for Grokster, but what they really wanted was a test that would have allowed them to drag Microsoft (and other “software” entities) or Dell (and other “hardware” entities) into court. Stopping Grokster certainly doesn’t hurt, but the record industry could never obtain real damages from Grokster for lost royalties. But man oh man, Microsoft is a completely different story."

Mike Godwin, Reason Online: Don't Stop Grokkin': "If you had a chance to listen to the content companies' press conference on the afternoon the Supreme Court's decision in MGM v. Grokster was announced, you heard nothing but crows of victory. The word "unanimous" was repeated umpteen times (the decision was 9-0 against the peer-to-peer company defendants), and much was said about how unequivocal the record companies' and movie companies' victory was."

Pan-European Digital Music Licenses

Reuters: EU seeks pan-European license for online music: "The European Commission will push for measures to establish a pan-European copyright license for online music use by October to allow EU industry to compete
better with the United States."

New York Times: He Says He Owns the Word 'Stealth' (Actually, He Claims 'Chutzpah,' Too):

Over the last few years, Leo Stoller has written dozens of letters to companies and organizations and individuals stating that he owns the trademark to 'stealth.' He has threatened to sue people who have used the word without his permission. In some cases, he has offered to drop objections in exchange for thousands of dollars. And in a few of those instances, people or companies have paid up.

'If a trademark owner doesn't go up to the plate each day and police his mark, he will be overrun by third-party infringers,' Mr. Stoller, a 59-year-old entrepreneur, said in a telephone interview from his office in Chicago. 'We sue a lot of companies.'

Joe Gratz has more details: Idiotic Trademark Abuse: "The attached response letter from Aimee Wolfson, Columbia Pictures’ VP for Legal Affairs, is a superb smackdown; it’s one of the first big-studio legal documents I’ve read that I’ve enjoyed."