09 September 2009

A Round Tuit (2)

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

The blogosphere is a sociable place and the legal end of the neighborhood is generally no exception. Hop around from blawg to blawg and you're certain to see many guest posts from writers not normally associated with those blogs. For those unfamiliar with the common practice of guest blogging, in general the keys for using posts written by others are to 1) identify the writer and 2) secure the writer's permission to use the post. If you fail to abide by these simple rules, you are 1) misrepresenting others' work as your own (or at minimum failing to give proper credit where due) and/or 2) stealing. If you are a practicing attorney, this demonstrates that you are 1) an asshat and/or 2) an unethical attorney. If the content you're taken is that of the widely-known and well-respected Texas criminal defense attorney Mark Bennett, you are 1) stupid and 2) stupid.

Some months back, Scott Greenfield was displeased to discover that his RSS feed was being "scraped" and reproduced by an outfit called USLaw. When confronted by Greenfield, USLaw behaved unprofessionally; their unsatisfactory response prompted Greenfield to reconfigure his feed to offer only partial posts. While this is entirely understandable and part of a Greenfield post beats a dozen posts from most bloggers, the change was not in Greenfield's interests or his readers'; it was a necessary but regrettable response to unprofessional behavior. For what it's worth, while it was well beyond fair use for them to reproduce the posts as they did, USLaw didn't represent Greenfield's writing as anything but his work. USLaw behaved unprofessionally, but they were not obligated to do otherwise. As far as I can tell, they are not practicing attorneys; although they operate in the broader legal internet space, they are not legal professionals bound by codes of ethical conduct and subject to discipline for unethical behavior.

Without excusing USLaw's conduct, what's been done by attorney Melina Bennighoff or on her behalf by a marketer is much more objectionable. As Bennett explains, Benninghoff scraped posts from Bennett's blog and others' without those authors' consents and reposted these on Benninghoff's blog. It is noteworthy that the reposted items are identified as "by benninghofflaw". A cursory search online revealed that Benninghoff has also set up several Twitter accounts with false names and pictures to drive traffic to her singularly ridiculous blog and boost her position in search engines.

What this boils down to is a practicing attorney lifting copyrighted content from other sites and presenting it as her own work for commercial benefit. That she may have hired a marketing consultant who has done these things in her name and for her benefit may be meaningful to some, but it shouldn't matter; attorneys are, and should be, ethically responsible for their own actions and those of their agents. As Bennett notes:
Melina Bennighoff is suffering from one of two indistinguishable conditions: either she has hired a legal marketing “expert”, or she is absolutely batshit insane. No sane and ethical lawyer would possibly think that what she’s doing is a good idea, but when you outsource your marketing you also outsource your ethics.
If that seems appalling to you, you're not alone. Brian Tannebaum found that, nearly as quickly as her online transgressions were publicized, Bennighoff's blog and Twitter presences were yanked from public view. He properly holds her responsible for her marketer's activities on her behalf:
Ms. Benninghoff is yet another criminal defense lawyer whose internet presence is nothing more than other's writings. Not a single blog post is hers. Her twitterstream, is not her talking to others, it's just repetitive posts linking to stuff she hasn't written.

I know how this happens.

Lawyers desperate for business meet internet marketers desperate for business. The lawyer says they have no time for twitter or blogging or any other internet marketing.

Not a problem. Some tech scum can aggregate stories and blog posts written by others so it creates "content." Then, the links can be auto tweeted, and the lawyer has to do nothing.

It's disgraceful.
Scott Greenfield suggests that, as it brings our profession into (greater) disrepute, the theft of online content is particularly reprehensible when committed by legal professionals; notwithstanding, as he points out, it's a much more widespread problem — the ease with which content can be stolen has given rise to a sense of "geek entitlement". He writes that naming-and-shaming is an imperfect remedy, but an appropriate and at times effective one:
We can shame them by making sure that as many people as possible are aware of the fact that they haven chosen to engage in unethical, scummy conduct. We can undermine their purpose by using our page rank to surpass their page rank, so that when they not only obtain no benefit from their sleazeball tactics, but our perpetually held out to ridicule for what they've done.

It's possible that Melina Benninghoff doesn't even realize that she's become the butt of some very harsh criticism. It's possible that she allowed some ignoramus to have his way with her lawyer marketing strategy. But this remains her responsibility; Responsibility is what being a lawyer is all about (and no, it's not about making lots of money so you can achieve work/life balance). Whether she actively or passively failed to take responsibility for her online presence, she remains responsible. That's one of the burdens that comes along with a law license. Too hard to do? Tough.

If Benninghoff is a real lawyer, then she will profusely apologize to Bennett, and everyone else she's harmed. She will admit her wrong and acknowledge that she has wallowed in the gutter. She will learn from this egregious wrong. She will no doubt be given a stern lecture, but will ultimately be forgiven, for she is but one of a multitude of bone-headed lawyers who have been taken in by the culture of legal marketing and social media that has undermined what little remains of the integrity of the profession. In other words, she's neither alone nor special.
Jeff Gamso shares Greenfield's concerns about the effects of this sort of activity on the profession's image generally, and he minces no words in expressing that:
There are any number of reasons, some of them good, why people don't trust lawyers. And when we're out here on the web, when we lay ourselves out, reveal our beliefs and attitudes, our passions, our concerns, we open ourselves up.

And then the Melina Benninghoffs come along. She's an ethics complaint in waiting, a disbarment to come. She's a liar and a thief. Even if she's a great litigator (and it's hard to imagine that she is), you shouldn't hire her. You don't want her in your corner.

But if she has an enemies list, it'd probably be an honor to be on it.
Confronted by Bennett, Benninghoff's marketer, Wayne Conley, responded unconvincingly and set-up a fake Twitter account using Bannett's wife's name. At Legal Blog Watch, Carolyn Elefant wrote about the whole sorry affair, calling it "Law Firm Marketer Gone Wild". She advises that, "The moral of the story. Be careful -- very careful -- of who you allow to market for you online. As this incident bears out, bad publicity is NOT always better than no publicity." Bad publicity travels far and wide online, and quickly. More than four thousand miles away, British legal blogger Charon QC wrote, "Frankly, I am appalled by this – it is a form of highway robbery and when done by a lawyer blogger it is pretty piss poor."

I'm an admitted fan of Google's book scanning and indexing efforts. Even I'm a little concerned though, about the proposed settlement being hammered-out by the company. Deven Desai notes that "the question of how society governs access-to-knowledge is subject to a private deal between private parties who have little concern for society’s claim to access and use the works in question." He explains why that should concern us:
It reminds a little too much of entertainment deals I have read in practice. Some clauses are opaque; some bizarre. All protect one party and ignore others.


[I]n brief, the assumption that the objective of market rates and the realization of broad public access are compatible is on the surface semi-plausible but facile. The following sub-clauses make it clear that broad public access is not the animating force on the deal. Intense control over access and the ability to price discriminate (including a ban on k-12 access unless the Registry (publishers) agree) are the goals.


Last, I suggest that this deal is so important that Congress has to be involved. As private re-writing of the Copyright Act is not the correct way to proceed. It will likely take away the chance for copyright to roar into the twenty-first century with a winning solution for authors, publishers, and society at large and instead will repeat history with the system being captured and benefiting only a narrow class of stakeholders.
Back in July, law librarian Mary Minow expressed serious reservations about the lack of reader privacy protections in the settlement; Peter Hirtle reports that Google has since issued a new privacy policy for its Google Books project. He notes that the new policy meets current guidelines but is nonetheless criticized by some:
Google is more than compliant with current library standards for 3rd-party privacy protection. EFF argues that "Given the important free expression interests at stake and the long history of protecting reader privacy by libraries and bookstores, readers need a durable guarantee of protection enforceable by a court." No library has been demanding such a guarantee before now. One has to wonder if the current criticism of Google wouldn't be better directed at libraries and their privacy requirements when working with outside vendors.
Writing for EFF (the advocacy group Electronic Frontier Foundation), Cindy Cohn points out that many aspects of Google's new policy are aspirational rather than binding commitments and that its recourse to limited state laws on this subject are inadequate both for domestic and international readers. She writes, "We're pleased that Google is taking these good positions, among others, on issues we raised during our discussions with them over the summer. But to do right by readers — and the authors and publishers who stand with them for reader privacy — Google needs to do more."

If you spend as much time watching and listening to Major League Baseball broadcasts as I do, you've probably heard their "no rebroadcast, retransmission, blah, blah, blah, account of this game, express written consent" nonsense so often that it really no longer registers. The effort of one consumer blogger to get express written consent allowing him to provide an account of a game to his buddy was met with some confusion (but no consent) from Major League Baseball. Mike Masnick wrote about the request and MLB's ongoing copyright overreach:
Now, obviously, this is a bit of a joke (and a funny one), but it does highlight a rather serious problem. Copyright holders are pretty regularly claiming significantly more rights than they actually hold over content, and many people simply assume that they can do this. This leads to them to think that they don't have basic rights concerning not just "fair use" but stuff that is obviously not covered by copyright, such as an "account of this game." There really should be sanctions against such copyfraud.
Eriq Gardner doesn't necessarily disagree with Masnick that "there oughta be a law", but he can at least suggest a motive for MLB's position: "MLB's claims of authority over the "account" of a game could be obsolete, but with the development of instant-media technologies, it probably wants to stake its ground just in case."

This week's SCOTUS arguments in the Citizens United campaign finance case were very ably previewed by Lyle Denniston. I remarked on Twitter that this post demonstrates again that Denniston is simply the best Supreme Court reporter around today. Full stop. No "amongst bloggers" or "apart from [insert print journalist name here]" caveats needed. Denniston explains the significance of this case:
[T]here has been fundamental disagreement on whether the various curbs on corporate political activity, often reinforced, have been effective, or whether corporations have easily found ways to evade the restrictions. That disagreement still looms in the background of the Citizens United case.

There are two other layers of disagreement in that background. One is over whether it makes constitutional sense to treat the spending of money as “speech,” and the spending of money on election campaigns as “political speech.” But that is a disagreement outside the Court; it is clear that the Court regards such spending to be speech that has at least some protection under the First Amendment. The Citizens United case may determine how much.

And the other layer of disagreement is whether corporations are entitled to some of the same protection, under the Constitution, as real people: in other words, should they be treated as “persons” who actually have constitutional rights? Once again, that appears not to be open to doubt within the Court. The origins of the notion that corporations are “persons” with constitutional rights are somewhat obscure... but the Court does not question that they are persons in a legal sense. The coming decision in Citizens United will accept that as a premise for whatever rights corporations are found to have as political financiers.


What apparently is not at stake (unless the Court ultimately speaks very broadly in favor of corporate “political speech”) are laws that bar corporations from donating their money directly to candidates — the type of ban in effect for more than a century. The restriction now in dispute — lesser, but still resented by many corporations and their defenders – forbid them from using corporate money to advocate, independently of any candidate organization, the election or defeat of a candidate. That is what is called “independent spending” on campaigns. The Supreme Court has upheld that kind of ban — at least when applied to corporations. Two of the Court’s most important precedents that did so must now withstand fresh scrutiny.

Dan Hull observes:
[I]f you are outside counsel, or even inside counsel, and "do" litigation, you are presented with all manner of improvements and changes a good client can and should make to its operations right away.

Like now.

Now, before the next order is received, before the next shipment is made, before the next employee termination, before the next disposal of that residual waste from day-to-day operations.

But how many of us--outside counsel, and even GCs in litigation management and oversight--don't say or do anything, or simply put it off, because we think it's not part of our "litigation" job?

Or we think it's a problem we'll mention to the polite transactional and tax lawyers down the hall--the ones the client has used to plan and grow for decades--when and if we get around to it? But we never do take action on it. It becomes a well-meaning "things-to-do" note made in the excitement of the beginning of a fight.

Litigation often hands you the chance to add long-term value immediately--and solve an operations problem before you finish the barest outline of the Answer or Rule 12 Motion.
As an in-house attorney, I've been fortunate to work with some great outside counsel on various matters over the years. These folks are all highly-educated, intelligent, experienced, professional problem-solvers; the best of them aren't busybodies but they also aren't shy about making the sorts of suggestions Hull outlines. It's true that not every suggestion is pure gold and few outside counsel understand our business so well that they can adequately consider all that their suggestions would affect. They shouldn't worry so much about that. Leave that evaluation to us. Outside counsel should just understand that if they spot an issue affecting a client's longer-term interests, they shouldn't hesitate to point it out or, better yet, suggest a course of action.

Where does one go to recruit that kind of attorney? Hull has often blogged about the difficulties he's faced in finding the sorts of young lawyers his firm and his clients need and deserve. Hull's co-blogger, Rob Bodine, writes that "graduates of elite law schools are less satisfied with the long hours associated with those jobs, in part because they view them as mere stepping stones towards their actual target positions. Nevertheless, large law firms cling to the policy of preference for the elite graduates. Should they?" He suggests that firms need to focus some attention on finding quality "grunts" at non-elite law schools.


Dan Hull said...

Thanks, Colin...greetings from a hotel lobby in way northeast PA...some nice writing and coverage, sir.

FYI, re: suggestions to GCs, note: all posts at WAC? presuppose no one-night stands (zero) and instead longstanding relationships with repeat large and generally publicly-traded clients: 8 years at the very least.

Our firm's average is likely about 12 years, with some at 20 plus--which ANY firm can do if it wants. There is no other relationship to have, we think; it is doable by any good firm--not a luxury--and should be any biz law firm's default position.

If you have that kind of relationship, you can--and are likely expected to--"suggest away" to the GC, early and often, like a big eager happy goddamn dog. Ya' know?

shg said...

Colin, you've shamed me into returning my RSS feed to full posts, despite the sleazy,scumbag scrapers out there who should all suffocate on geeklawyer's feces.

And where did you ever find that picture of me on the phone? I have since removed the mustache and look much younger.

Unknown said...


It's clicheed but true that it takes two to tango. Many relationships between inside and outside counsel are longstanding but not close ones. Just as outside counsel need to understand and promote a client's interests beyond the matter at hand, inside counsel need to allow them to do that. From concerns about cost, jealous guarding of "territory", or simple resistance to others' suggestions, too often we on the inside do not fully engage with our outside counsel. It's a two-way street, to borrow another cliche.

It sounds very high-minded for me to suggest that firms need to do this and that to better serve their corporate clients, but it also takes a bit of longer-term thinking and regular soul-searching for inside counsel (myself included perhaps more than many) to not just expect greater engagement from our outside counsel but to truly enable and encourage it.

Unknown said...


My comment about your RSS feed was akin to an old fart lamenting the long-gone days when no one locked their doors at night. It's sad but true that times change and the ease with which content can be lifted and repurposed has caused such a change in the blogosphere. This means that those of us (meaning, for purposes of this conversation between you and I, just you) with content worth stealing need to take steps to protect that content beforehand, commit to "protecting" it afterward on a thief-by-thief basis, or resign themselves to involuntarily guest-blogging at sleazy, marketing-driven sites.

I don't begrudge your earlier decision to abbreviate your posts in your feed; I understand it completely. While it's a minor inconvenience to click-through for full content, it's worth doing for sites which have full content worth reading. While I might be nostalgic for the days when sites like Simple Justice could leave their doors unlocked, I'm not so naive to believe that we can return to those days easily or soon.

The bad players in the blogosphere have created a burden for some content providers; I see nothing wrong with asking readers to share some of that burden by clicking-through partial feeds, entering a captcha to comment, or providing a verifiable online identifier to participate in conversations.

To insist that content creators bear the entire burden to chase down content thieves after the fact and to spend significant amounts of time deleting spam comments which could have been prevented with simple, minimally-inconvenient measures would deter some from creating content in the first place. That's a much higher cost for us all to pay.

Keep creating and do what you will to protect your work; your readers may whine but we'll adjust.

Dan Hull said...

Who is this SHG guy? Do I know him? Is he the one who led the student crowd in a free speech demonstration in Barcelona last month?