18 November 2009

A Round Tuit (9)

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.

This week's legal developments seem unusually focused-upon Google. The long-awaited revision of the class action settlement concerning the Google Books project (after the initial settlement unraveled under Justice Department criticism) was released this past Friday. As it involves Google, the settlement was printed in bright primary colors and is expected to remain in beta for the next several years.

Matthew Sag provides an excellent overview of the pertinent developments since the initial attempt at a settlement. The new arrangement would be limited to books published in the United States, Canada, the United Kingdom, and Australia, as well as any other foreign works which are registered with the U.S. Copyright Office; it is estimated that approximately 95% of foreign works will now be excluded from the Google Books project. As Sag notes, however, "The most significant change appears to be the narrowing of the scope of out-of-print works." He continues:
As predicted, the revised agreement now includes greater protections for rights holders who cannot be traced before a book is scanned and made available online. Money derived from orphan works will be held for 10 years and unclaimed funds will now be distributed to charities in Australia, Canada, the UK and the US. Under the previous version of the Settlement, the Registry actually benefited from failing to locate the relevant copyright owners.
As an information consumer rather than an author, I tend toward a pragmatic view that anything which builds the Google Books database of scanned and freely-accessible works sounds like a good thing. Fred von Lohmann discusses the promise of enhanced — unprecedented, even — public access to written works, but cautions that it may not prove to be as widespread or as beneficial as some anticipate (cites omitted):
[T]he Google Books project could potentially provide Americans (and only Americans, as the settlement only authorizes Google to offer Display Uses of in-copyright books to U.S. Internet users) with unprecedented instant access to a large collection of books that previously were available only in research university libraries. In particular, like the Internet before it, Google Books could make specialized resources available to people who otherwise might never be able to access them (see, e.g., Google's agreements to digitize U. of Wisconsin's Native American collection and U. of Texas' Benson Latin American collection).

In addition to enabling search and reading, the products and services envisioned by the settlement could also unleash innovative, transformative new uses for the information inside these books.

But the promise of what the settlement might accomplish is no guarantee of ultimate results.

First, under the settlement copyright owners can pull their books out of all the products and services envisioned by the settlement, including full-text search and limited "snippet view" access. This is essentially the "take the money and run" option—the copyright owner collects a per-book payment from Google for books already scanned, but then the public gets no online access to these books unless and until the copyright owners negotiate new deals with Google or other online providers. This effectively gives copyright owners a unilateral right to trump fair use, essentially "unpublishing" their books online. Some observers expect that most major publishers will opt to "take the money and run" for both their in-print and out-of-print titles, leaving gaping holes on the virtual shelves of Google Books. If this takes place, then the settlement would only foster access to orphan and unclaimed works. Still good, but far short of full access to every book in the University of Michigan library.

Second, Google is not required to offer all the products and services envisioned in the settlement. The settlement only compels Google to offer the following within 5 years:
  1. Consumer Purchase (not clear what percentage of the scanned books must be made available)
  2. Institutional Subscription for Higher Education, including Accommodated Service (for at least 85% of books scanned)
  3. Public Access Service (for at least 85% of books scanned)
  4. free search services (including Snippet View and Preview, for at least 85% of books scanned)
  5. Library links that will help you find a library with hard copy (for at least 85% of books scanned)

Third, the public gets only the kinds of access that Google makes available, only through interfaces that Google chooses to expose. And while this level of access is certainly preferable to no access at all, the "One Interface to Rule Them All" approach is likely to impede innovation, which ultimately means less access. It would be preferable if others had access to the underlying book scans, just as Google had access to the World Wide Web when it built its own search engine.
This last point, that Google's competitors are not included in the settlement and will not have access to the Google Books scanned images, was also touched upon by Matthew Sag, who advised that providing such access "will still require legislative intervention." The Wall Street Journal Law Blog discussed the possibilities for such intervention:
[T]he problem, say critics like Sherwin Siy of Public Knowledge, a nonprofit that advocates for digital rights, is that right now it doesn’t seem like such a license would be permitted under the law.

Some are claiming now that the government needs to get involved; that the solution is not one best left to the courts to decide. Siy, for example, suggested that "a legislative solution would allow anyone the access of orphan works," without making one company the gatekeeper.

"Nobody should get a license to orphans without congressional action," said Pamela Samuelson, a professor at UC-Berkeley School of Law. "This is a legislative matter — you shouldn't use a class action for that."
As I've never written anything worth reading, let alone scanning, indexing, or stealing, I'm probably not the best person to unpack the competing copyright, business, and other concerns involved in this settlement and the broader project objectives; I'll merely note in passing that this week's Blawg Review host, Joel Rosenberg, the published author of dozens of books indicated that he was personally opposed to the settlement. Mike Masnick comes out on the other side, terming the revisions to the settlement overhyped and suggesting that Google's acquiescence to a settlement of the legal claims brought against it is damaging to public interests in itself:
I think this is all something of a sideshow. I still stand by my original feeling towards the settlement, which is that I'm upset anyone felt it was necessary at all. Google had a strong fair use claim that I would have liked to have seen taken all the way through the courts. And, of course, this settlement really has nothing at all to do with the main issue of the lawsuit (that fair use question) and is really a debate over a separate issue: how to take the books Google scans and trying to turn them into a "book store" rather than more of a "library." And, in doing so, the important fair use question gets completely buried -- which I find unfortunate.
Another Google effort met this week with more unequivocal acclaim. Late on Monday evening, word spread about a major enhancement to the Google Scholar project — the addition of search and review capability for full-text legal opinions from federal and state district, appellate and supreme courts in the United States. The Official Google Blog expressed the company's hopes for the enhanced project:
We think this addition to Google Scholar will empower the average citizen by helping everyone learn more about the laws that govern us all. To understand how an opinion has influenced other decisions, you can explore citing and related cases using the Cited by and Related articles links on search result pages. As you read an opinion, you can follow citations to the opinions to which it refers. You can also see how individual cases have been quoted or discussed in other opinions and in articles from law journals. Browse these by clicking on the "How Cited" link next to the case title.
Many practitioners, including Ernie Svenson were enthusiastic:
[M]aybe this is not the perfect solution for lawyers. But it's an interesting start. I can envision Google adding to the database as it gets more use, which it should. Here's why.

First, even if you have Westlaw or Lexis (or Fastcase), there are some great advantages to Google Scholar, such as dispensing with the need to login. If you're just looking for a recent case then clearly this is the way to go. And if you want to share a link to a case that's easy to do, again because there is no login barrier.... You click the link and see the case right away. How cool is that?!

You can search by state, or pick the states that you want to search in (there is no way that I could find to restrict federal case searches to just one circuit, unfortunately). Finally, Google Scholar has a nice way of organizing the cases you search for, displaying a tab called How Cited that lists other cases that have cited the key case and brief description of the citing language. Very nice!
As a practitioner myself, I share his optimism. I am a member of two state bar associations and have access to many free research tools through those organizations and otherwise. While these sites have their uses, they are limited and clunky to a ridiculous degree. I share Svenson's belief that statutory and case law should be available online for free; while vendors should be able to charge users for tools which offer a meaningful improvement in the use of such laws, basic access should be free to all. Notwithstanding, it's simply not feasible to derive much value from freely-accessible legal text without robust search capabilities and this is where the available free sites have, to this point, fallen short. Google's effort promises more comprehensive access and will do it with Google's tremendous search capabilities enhancing the underlying legal text. Huzzah! No longer will practitioners, citizens, and other interested folks be forced to suck hind teat simply because they're unwilling to pay a substantial amount of money for one of the major legal information services.

While it has only an incidental relation to the Books or Scholar developments, I would like to highlight another post by Mike Masnick concerning Google's business. Masnick touches on a key aspect of that business and the fact that Google behaves very differently from some of its larger competitors:
In the various debates we have on intellectual property, we often hear people insisting that Google's dominance is based on intellectual property -- even though there's very little evidence to support this at all.


Google does, in fact, have a bunch of patents -- but I watch the patent app filings and patent grants on a bunch of different companies each week, and Google tends to file significantly fewer patents than other comparable companies. Furthermore, I don't know of a single case where Google even hinted at or threatened another company with a patent infringement suit (if there are any examples, please let me know). It appears that Google has focused very much on just using patents for defensive purposes, since it is regularly sued by others for infringement.


Google, for its part, is open sourcing Microsoft, one line of code at a time, and Microsoft hasn't a clue as to how to respond, because it only knows the old world: competition through better IP.

And that -- right there -- is the key point we keep trying to make around here. You don't need to rely on intellectual property. And, if you do, you are opening yourself up wide to competition that doesn't rely on IP and innovates in a way that simply cuts your legs out from under you. Yet... we'll still hear stories for years about how all of Google's billions are because of its intellectual property, even as it gives away more and more of it each and every day.

Marketing seems to be a consistent topic of discussion in the blawgosphere, week in and week out. It seems that more and more, positions have been established and sides are being taken. Eric Turkewitz has been one of the leading voices on the side which is more critical of recent developments in legal marketing and trends in consulting relating thereto; Turkewitz originated the "outsource your marketing, outsource your ethics" refrain which has been widely-cited and repeated in the course of this debate and which encapsulates so well the main criticism of current trends in legal marketing. This week, Turkewitz comments once again on this topic, discussing the recent "Connecticut Five" matter and other developments:
When lawyers outsource their marketing to others -- be it a "search engine optimization" company, an attorney search company, or some hybrid -- they are hiring agents to do their advertising. Agents. We learned about that stuff in law school. The concept has a long and deep legal history. The web didn't make it go away.


So what's the downside to all this? Well, the lawyers that hire others to do their marketing might find that company violating copyright law (content scraping) or ethics rules and subject them to litigation. Litigation can be long and expensive.

But it's actually a lot worse than that because litigation takes time and money and many don't want to do it unless they absolutely have to.
Mark Bennett is on Turkewitz' side of this argument and a post he wrote this week illustrates quite well that those questioning the ethics of some who engage in legal marketing are not against legal marketing per se. Bennett's post offers sixteen rules for attorneys who want to engage in online marketing without checking their ethical responsibilities or professionalism at the door. It's all worth reading and considering carefully, but I think some of the choicer bits of good advice include "online (as in the real world) your reputation is everything"; "the State Bar is not watching very closely what you say here, but others are. The internet may be mostly lawless, but it is not without order. If you write dishonest content, people will link to it and discuss it and pretty soon it’ll be part of your reputation"; and "Don’t trust the marketers. Even if the marketers make what sound like the right noises...."

Another leading blogger who has devoted considerable time online to discussing the ethical implications of aggressive legal marketing is Scott Greenfield. There are certainly many others, but why am I highlighting these folks, all on one side of the argument? Simply put, I'm on that side as well, much lower down the totem pole, but there nonetheless. That's my opinion, this is my blog, and I don't feel any great inclination to feign impartiality. Anyhow, Greenfield posts this week in a more gently critical tone than he sometimes takes, taking Kevin O'Keefe to task for his defense of the marketing firm involved and marketing tactics at issue in the "Connecticut Five" matter:
While Kevin provides the tools, he also has been a strong advocate for using the tools properly. Granted, he may encourage lawyers to blog for the wrong reason (in my opinion), and perhaps his methodology is a bit over the top (using blog names that tend to grossly exaggerate his customers' relative merit), but he's got a business to run. At least he emphasizes that a blog without substance is a failed blog, one that will never bring in business and never receive recognition. I've always respected Kevin for this.

But now he's gone off the reservation....
This week the State of Connecticut began hearings on whether five attorneys violated state ethics rules by participating in an Internet advertising program run by Total Attorneys.

Cast in the light of protecting consumers, Connecticut's action is another step backward for consumers and the lawyers who serve consumers by providing legal services at reasonable prices.
Unlike Carolyn Elefant, whose concern was for the five solo practitioners who have been targeted as the scapegoats for Total Attorneys' total impropriety, Kevin hops on the marketer bandwagon to back up the business interests whose existence depends on desperate lawyers willing to wear short shorts and walk the streets.


Of course, it's true that the elimination of ethical proscriptions on all the things that make it harder for the least competent, least ethical, least worthy lawyer to get clients would benefit the lowest echelon of the legal business. And why not, marketers implore, since the competent, ethical and worthy don't need their services, instead having clients seek out their services because of their reputation for excellence.

Kevin used to tell lawyers who used Lexblog to be excellent. He used to tell them that the way to success was to demonstrate the finest qualities that a lawyer could possess on their blogs. That was the sort of advice, if not command, that flowed from the brain of the Kevin O'Keefe I knew.

Who stole Kevin's brain? Please give it back. Immediately. He needs it. And so do the rest of us.
Missing brains? I think we all know who — or what — is responsible for that. Yes, it appears that zombies have reared their ugly, decomposing heads in the blawgosphere. A recent post by blogger "TJIC", alleging that "new-school" fast zombies (think something along the lines of the infected folks in 28 Days Later or the Reavers in Serenity) are more scary than the "old-school" slow zombies (as in George Romero's Night of the Living Dead); Patrick at the Popehat blog responded:
Our disputant TJIC has this profoundly moronic observation on the walking dead:
slow old-school Zombies … are a lot less terrifying than the new-school type. You can just walk away, as long as there aren’t too many of them.

It’s silly to think that the dead can run. But it isn’t silly to say they’re “not scary” because they can’t. It’s criminal nonsense, and those dangerous nutcases who claim such, that we should ignore the problem because, "Oh, I could just walk away..." would be stoned in public squares if we ruled this country.

The dead can’t run, but they don’t need to. Because they walk. They walk to us. And they never stop walking. Or crawling, if need be. They know that we are not like them, and they are drawn to us. Inexorably. While they’ll happily, if they have such an emotion, consume us skin and bone, all that it takes is one bite to kill us. The infection is irreversible. Better, in fact, that they did eat us entirely. Because the bitten die, only to rise and BECOME THEM!

And so the cycle renews. Many is the internet-tough-guy who’s asserted, “Oh, I’ll just walk away,” only to find, hours later, that he could walk no further. That he could climb no further. And still they came, never tiring, never resting. And never going away, until finally, in despair, he dropped out of the tree, yielding to the inevitable. Until he (or what was left of him) was put down by citizens who took the threat seriously. Who didn’t claim, “I’m not afraid because I can outrun them,” only to find that they could just run so far. Who kept firearms on their persons, in their homes, in their offices, and in their trunks, at all times. Citizens who knew that one must kill the brain, so the body will die.

But one day, some ninny like TJIC will be caught, alone and defenseless, thinking he can just run. Or he can just climb that tree and wait. Then he will become two. Two will become four. Four will become eight. And the rest of us will learn the sorry lesson in mathematics that he failed to comprehend, until it was too late.

Have you cleaned and reloaded your firearms today?
Mark Draughn probably does have his firearms cleaned and loaded, but he's buying none of Patrick's "irresponsible alarmist claptrap" and describes in impressive detail six reasons why zombies do not pose a meaningful threat to humanity on the whole, including zombies' vulnerability to being shot in the head, their inability to use tools, inherent disparities in numbers between them and us, and their inability to organize and act collectively toward common objectives. He concludes:
I'm not a zombie denialist, and I certainly have no sympathy for the zombie coddlers who advocate we follow a live-and-let-rot policy. Nevertheless, zombie outbreaks are purely a local problem. Talk of a "worldwide holocaust" is at best misinformed and at worst a deliberate manipulation for political or financial gain.


[Z]ombies are not a significant threat to national or species security. Zombies victories are almost always the result of an unexpected outbreak hitting a small group of people. Once the alarm is sounded and professional counterzombie forces are brought to bear on the problem, it is quickly resolved. At the end of the day, we just have to shoot them in the head.

British blogger Jack of Kent praised the release of a report criticizing Britain's notably lax libel laws, which have led to "libel tourism" by famous folks who seek to chill unflattering speech about themselves. While the report is a good one, Jack of Kent cautions that it is only a first step toward remedying an international problem:
By itself it changes nothing.

Law can only be changed by influencing the legislature, or the case-by-case development of the law by the courts. It will not be enough to read and admire the report: it should be sent to every MP, senior civil servant, and judge.

Each political party should now address the report and, if possible, make a manifesto commitment to make parliamentary time - and civil service resources - available for libel reform, which should proceed on a all-party basis.

It is now undeniable that libel law needs drastic reform.

For me, this is because it dangerously elevates a private right to reputation above the need for fully-informed debates on matters of public importance, such as public health and public safety.

There are those who perhaps think that libel law itself should be abolished and that the tort of malicious falsehood should be widened instead; after all, if an area of law needs reforming in at least ten areas, then it may be that the law itself is beyond repair. I think this view has great force, though I doubt it is practical politics.
Things may be starting to change, however slowly. The Pinsent Masons firm reports that at least one libel tourism case has been booted for the plaintiffs' failure to show meaningful British traffic to the allegedly-libelous statements:
A libel action over an article that appeared on the website of a South African magazine has been dismissed by a court in England. Evidence suggested that the article had received only four visits from the UK in a two month period.

Describing the claim as being "totally without merit," Mr Justice Tugendhat said the claimants had failed to establish "substantial publication" within the court's jurisdiction.


Mr Justice Tugendhat said that in allegations of online libel, the claimant must prove publication within England and Wales. Previous cases have established that 'publication' requires evidence of readership, not just availability. The claimants failed to prove that.

They argued that "a significant proportion" of the magazine's online traffic came from England and Wales but failed to provide supporting evidence for that assertion.

[The plaintiffs] presented evidence of traffic figures from the website for the two months following the date of first publication. The publishers had recorded a total of 65 visits for the contentious article.

"It is not possible to say whether these visits included more than one visit by the same person," noted Mr Justice Tugendhat. "Nor is it possible to say in which jurisdiction the visitors were located."

The publishers did say that on average approximately 6.79% of visits to their website are made by users of the internet based in the UK. "If the average percentage of 6.79% is applied to the 65 visits, the result is that about 4 visits might have been made by one or more visitors based in the UK," said the judgment.
W. Scott Blackmer suggests something which, as counsel for a technology company making regular use of NDAs, I found compelling — a considerable proportion of the NDAs I'm routinely generating may not be worth my effort:
My seatmate on a recent cross-country flight was an entrepreneur who has established an innovative and successful online financial services business. “I never use NDAs,” he insisted. “Too much trouble, and too hard to enforce, anyway.”

That’s not an uncommon view of confidentiality or nondisclosure agreements (NDAs), at least outside the context of employment and independent contractor agreements, where they are routine and well accepted. It’s easy to understand why an employer would want to ensure that employees are cautioned to keep trade secrets secret, for example. With an employee confidentiality agreement, the employer can more credibly threaten termination and a possible lawsuit that does not have to rely on implied duties under general tort or contract law, or the more remote prospect of criminal sanctions for theft, fraud, or commercial espionage.

But in business or technical discussions with potential investors, customers, suppliers, licensors, franchisees, or joint venture partners, it is often very difficult to determine how much needs to be disclosed and exactly who “owns” which information and ideas. Were the parties just brainstorming? Did they independently develop a similar approach to a problem? Litigation over NDAs can be costly, public, and ultimately unsatisfactory to the party claiming a breach, especially if it is hard to prove the intended scope of the agreement and the actual source of information.
Blackmer offers some wide suggestions about fine-tuning and selectively-using NDAs to make those we enter into worth the effort (and potential litigation).

Finally, a post from Russell Cawyer caught my eye this week. Cawyer discussed the recent season-ending episode of the series Mad Men wherein (WARNING: The following may be spoilers; I've no clue because I don't watch the program) several of the principal characters orchestrated their separation from an advertising firm to which they were bound by noncompetition agreements, to form a new firm in competition with their old one. Cawyer suggests that the actions depicted in the show are a tremendous advertisement for what not to do:
In today's times, I would expect the next season would begin, and end, as follows. The episode opens in a courtroom where Draper, Sterling and Cooper are about to be sentenced for certain criminal offenses. The next scene then flashes back to last season's finale with Draper and company wheeling out boxes and boxes of information from their old employer; making solicitations to the customers of their old firm; and competing fiercely for new business. Lawyers are engaged; lawsuits are filed. Draper and company are slapped with injunctions that prohibit them from calling on or doing business with old firm clients and from using the confidential, proprietary information that was misappropriated from the old employer. Next, a grand jury is summoned by the U.S. Attorney for the Southern District of New York. Our heroes are indicted for theft of trade secrets and a whole host of other misconduct. Draper files for bankruptcy since his resources are drained by being a partner in an advertising firm that is enjoined from working with clients --not to mention the divorce from his lovely wife Betty. Finally, our Mad Men plead guilty to criminal offenses and are sentenced to moderately lengthy prison sentences. Next season's opener ends up being the series finale because the protagonists misappropriated and used information that belonged to their old employer.

What this episode of "Mad Men" teaches is that if one is going to leave an employer and either work for a competitor or start a competing venture; don't do it like the Mad Men. Departing employees should 1) honor reasonable and enforceable contractual agreements regarding competition and nondisclosure of confidential information; 2) not take or use anything from the former employer; and 3) compete fairly.

Well, that's it for this somewhat abbreviated edition of "A Round Tuit"; thanks for playing!

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., DailyApps, MotivatedPhotos.com, and Paris Odds n Ends Thrift Store.

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