Technology & Marketing Law Blog: General Archives

Technology & Marketing Law Blog

May 02, 2009

Upcoming Talks in May and June

By Eric Goldman

May and June have become unexpectedly busy. I've got over a half-dozen public speaking engagements scheduled for the next two months. Where you can find me:

* May 7, Arlington, VA. Law and Economics of Innovation conference co-sponsored by George Mason University and Microsoft. I'll be speaking about my Economics of Reputational Information project.

* May 14, Stanford. Legal Frontiers in Digital Media co-sponsored by the Media Law Resource Center and Stanford. I'll be speaking about behavioral advertising.

* May 19, SCU, 11:45-1. Memory and the Web, a lunchtime talk by SCU Prof. Geof Bowker. I'll be commenting on his talk.

* June 2, Palo Alto, 8-10. Marked for Confusion: Has the Internet Changed Trademark Law? co-sponsored by HTLI and Bingham. Other panelists will be Mary Huser from eBay and Tom Kuhnle from Bingham. The RSVP page isn't up yet; contact me if you're interested in coming.

* June 4-5, Berkeley. Privacy Law Scholars Conference, I'll be speaking on my Economics of Reputational Information project.

* June 12, Stanford. 6th Annual E-Commerce Best Practices Conference. I'll be speaking about affiliate liability issues.

* June 18-19, Washington DC. Consumer Protection Conference sponsored by the ABA Antitrust Section. I'll be speaking about 47 USC 230.

As always, it would be a delight to see you there!

Posted by Eric at 06:54 PM | General | TrackBack

March 18, 2009

Call for Papers: AALS 2010 Annual Meeting, Law & Computers Section: "Law & Wikis"

By Eric Goldman

[feel free to redistribute this post widely]

Call for Papers on the Topic of “Law and Wikis”
2010 AALS Annual Meeting, New Orleans, Jan. 6-10, 2010

The AALS Section on Law and Computers invites you to submit a request to present on the topic of “Law and Wikis” at the Section’s session at the 2010 AALS Annual Meeting in New Orleans, Louisiana. The Annual Meeting will be held January 6-10, 2010; the session’s exact day and time is TBD. Selected speakers must submit a paper to AALS prior to the Annual Meeting for posting to the AALS website; those papers may be accepted for publication in other venues so long as the paper is not published before the Annual Meeting. The Section hopes to place the group of selected speakers’ papers in a to-be-designated law journal.

About the Topic: Wiki technologies offer novel and interesting ways for people to work online collaboratively. The best-known wiki application is Wikipedia, a highly successful website that has generated millions of encyclopedic articles from volunteer contributors. This panel will explore the interaction between law and wiki technologies, including Wikipedia. We are interested in presentations that address any aspect of wikis or Wikipedia. Example topics might include:

* Ownership of content created using wikis
* Who (if anyone) is responsible for ensuring the accuracy of wiki-generated content?
* Wikipedia governance structures
* Should the legal regulation of wikis differ from other Internet communications technologies?
* Wikis and deliberative democracy
* The use of wikis in legal pedagogy

How to Apply: Please email your presentation proposal to the section chair, Professor Eric Goldman, Santa Clara University School of Law, no later than April 6, 2009, noon Pacific time. Email address: egoldman@gmail.com. Your proposal should include your name, professional title, professional affiliation(s), contact information, presentation title, short abstract (less than 500 words please), estimated length of your paper, and (if applicable) any information about the paper’s publication status. Abstracts will be reviewed by a working group of the AALS Law & Computers Section, and selected speakers will be contacted no later than April 25, 2009. Selected speakers must bear their own travel and conference registration expenses.

Posted by Eric at 03:55 PM | General | TrackBack

February 23, 2009

Bay Area Blawgers 4.0, March 18, 6-8 pm, SCU

By Eric Goldman

The High Tech Law Institute at SCU Law is sponsoring the fourth gathering of Bay Area legal bloggers/blawgers. We'll have an hour of structured discussion and lots of mingle time. The theme for the discussion will be "Blawger Burnout." Light refreshments will be served. The details:

Who: The event will cater principally to legal bloggers in the Bay Area, but everyone is welcome. Expected attendees include Harry Boadwee, Anthony Corso, Cathy Gellis, Eric Goldman, Paul Gowder, Rudy Guyon, Joy Haas, Kirk Hanson, Eric Hartnett, Greg Haverkamp, Gordon Johnson, Brandy Karl (maybe), Kimberly Kralowec, Linsey Krolik, Mike Masnick, Cathy Moran, Amy Morganstern, Joe Mullin, Deborah Neville, Colin Samuels, Michael Sardina, Erik Schmidt, Mister Thorne, Kevin Underhill, Virginia Waite and Julia Wei.

When: March 18, 6-8 pm

Where: Wiegand Room, Arts & Sciences Building, Santa Clara University. Directions to campus.

Cost: Free.

CLE: This event qualifies for 1 hour of general CLE credit. Santa Clara University School of Law is a State Bar of California approved MCLE provider.

How: Please RSVP to Eric Goldman

EVERYONE IS WELCOME! Please extend the invitation to anyone you think might be interested.

Posted by Eric at 09:21 AM | General | TrackBack

January 29, 2009

Erika Rottenberg Talk Recap

By Eric Goldman

Yesterday, in celebration of International Data Privacy Day, Santa Clara University hosted Erika Rottenberg, LinkedIn's GC, for a lunchtime talk. Despite putting the event together at the last minute, we had a strong turnout of about 90 folks in the audience. Erika focused her remarks mostly for the students in the audience, encouraging them to think about the future implications of their online activities. Some of the parts of her talk that I found most interesting:

* LinkedIn has 34M users and is adding about 1.5M new users a month
* Approx. 29,000 LinkedIn users have an SCU affiliation (such as current or former students)
* LinkedIn gets about 2 subpoenas a month. [corrected from the talk]

She talked about how employers are researching job candidates online (for yet another story on this topic, see this Sun-Sentinel article). Though hearsay, she’s been told that approximately 10% of final job applicants don't actually get an offer due to inappropriate online activities. She gave some great examples of good and bad uses of online networking sites:

The good. She discussed Henk van Ess, the "Accidental Entrepreneur," who became a successful web retailer after discovering a better iPhone battery from China and then generating customers for it through his LinkedIn activity. She also discussed that company recruiters are trolling through sites like LinkedIn looking for new employees, leading to serendipitous job offers.

The bad. Her flagship case study was Joshua Lipton (see the AP story). Lipton was awaiting sentencing in a drunk driving incident that caused serious injuries to a victim. During this time, he went to a Halloween party in a "jailbird" costume wearing jailhouse attire, and photos from the party were posted to his Facebook page. The prosecutor submitted the photos to the judge, which prompted the judge to give a harsher sentence in response to his apparent lack of remorse.

Erika also discussed James Andrews, a Ketchum advertising executive who flew to Memphis to train FedEx employees about using social media like Twitter. While traveling, he tweeted "True confession but I’m in one of those towns where I scratch my head and say 'I would die if I had to live here!'" Perhaps not surprisingly, a FedEx employee saw Andrews' tweet, was offended by the seeming denigration of Memphis, and shared the tweet with FedEx's big brass. The result was a strong rebuke by FedEx to Andrews and his employer Ketchum, putting a lucrative advertising account in some jeopardy, and some questions about whether Andrew had the personal expertise to teach others about using social media given the apparent faux pas. (There's a lot written on the Andrews situation; here is the blog post that broke the story).

[Edited to make some changes]

Posted by Eric at 11:04 AM | General | TrackBack

January 13, 2009

Eric Goldman Road Show Spring 2009

By Eric Goldman

As usual at this point in the semester, I'm still scheduling events for the semester, but this post enumerates some of the events I have calendared so far. Some of these are High Tech Law Institute events, so we'll be disseminating more information about those as it comes available. As usual, if I'm going to be in your area or if we are going to be at the same conference, please let me know! If I'm speaking, my topic is in parenthesis after the event.

Jan. 13 (TONIGHT!), Sacramento: Navigating the Hazards of Cyberspace, Sacramento County Bar Association Intellectual Property Law Section (47 USC 230). This is a free event, so if you're in the area, please come!

Jan. 28, SCU: HTLI special noontime speaker on privacy issues. More info to come.

Jan. 30, San Jose: The journal's patent law symposium. I may be around at the conference some, but I'm double-booked with...

Jan. 30-31, SCU: The HTLI is hosting the ABA Business Law Section Cyberspace Committee's Winter Working Meeting. Come interact with cyberlawyers from around the country (and the globe) as they work on their various work projects. The Winter Working Meeting is all about work, not about presentations, so it's a unique and interesting way to get to know your colleagues. Hope you can make it!

Feb. 7-9, Boulder: The Digital Broadband Migration: Imagining The Internet’s Future, University of Colorado Boulder/Silicon Flatirons (Why Wikipedia Will Fail)

Feb. 11, Santa Clara: SMX West (Legally Speaking: Recent Legal News About Search)

Early March at SCU: the HTLI will be scheduling Bay Area Blawgers 4.0. If you are a Bay Area-based legal blogger and have never received an email about the event before, please contact me so I can add you to our list. More info to come.

March 11, Santa Clara: IEEE Communications Society, Santa Clara Valley Chapter (Internet Law Frontiers)

March 13, SCU: HTLI is hosting Prof. Barton Beebe of Cardozo Law (visiting at Stanford Law this semester) for a lunchtime talk to the faculty. Please contact me if you are interested in attending.

March 26, SCU: HTLI is co-sponsoring a careers in trademark panel on campus with INTA. It will be primarily student-focused, but everyone will be welcome. I won't be there because I'll be traveling to...

March 27, New York: Intermediaries in the Information Society, Fordham Center on Law and Information Policy (Content and CDA Immunity)

April 2, San Francisco: PLI Information Technology Law Institute 2009: Web 2.0 and the Future of Mobile Computing (Social Networks & Blogs)

April 30, SCU: The HTLI is co-sponsoring with the Berkeley Center for Law & Technology a full-day academic symposium on the 1909 Copyright Act. We haven't finished our marketing materials, but I guarantee the speaker list will be fabulous. Please reserve the date on your calendar now!

I'm still working on my summer event list, but one I'll mention now:

June 4-5, Berkeley: Berkeley-GW Privacy Law Scholars Conference, UC Berkeley Law School (Economics of Reputational Information)

Posted by Eric at 09:42 AM | General | TrackBack

October 20, 2008

Economics of Reputational Information Talks

By Eric Goldman

In the past 2 weeks, I traveled around the country presenting different versions of my Economics of Reputational Information research project to three slightly different audiences. As a result, this troika of presentations provides a nice snapshot of how I develop a topic from talk to talk. I've gotten some really terrific feedback on the project. If you have any thoughts on these slides, I would gratefully welcome them. My next step is to work up a definitive outline of my first writing project on this topic, so I'm still at a very early stage that would benefit from your input. My slides from the talks:

* Works in Progress Intellectual Property (WIPIP) Colloquium, Tulane University School of Law
* Midwestern Law and Economics Association Annual Meeting, Northwestern University School of Law
* IP Speaker Series, Cardozo Law School

You may recall my initial post on this topic about my presentation at IPSC at Stanford Law.

Posted by Eric at 10:02 AM | General | TrackBack

October 08, 2008

NYC Talk on Economics of Reputational Information

This coming Monday (Oct. 13) at noon, I will be speaking at Cardozo Law School on my Economics of Reputational Information project. If you are in the NYC area, I would love to have you come to the event and share your comments on my work. Lunch will be provided. The details:

Benjamin N. Cardozo School of Law
55 Fifth Avenue
New York, NY 10003
Room 1008
RSVP: ipprogram@yu.edu or 212-790-0207

Posted by Eric at 08:58 AM | General | TrackBack

September 17, 2008

Road Show Fall 2008

By Eric Goldman

This post highlights some of my talks and events scheduled for this semester. As always, if I'm going to be in your area, it would be a delight to see you--let me know.

October 3: Works in Progress Intellectual Property (WIPIP) Colloquium, Tulane University School of Law, New Orleans

October 4: Midwestern Law and Economics Association Annual Meeting, Northwestern University School of Law, Chicago

October 13 (noon-1): Cardozo Law School (NYC), IP Speaker Series. I'll be speaking about my Economics of Reputational Information project. I believe this event will be free and open to the public, so if you're in the NYC area, please plan to come!

October 17: All-day symposium at Santa Clara. More details soon.

November 4: Federal Circuit oral arguments at Santa Clara University. More details soon.

November 14-15: Virtual Worlds, Social Networks & User-Generated Content Roundtable, Vanderbilt Law (Nashville)

December 8: 2008 IP and the Internet Conference, California State Bar IP Section, Santa Monica

December 10: 2008 IP and the Internet Conference, California State Bar IP Section, San Francisco

Early January: AALS in San Diego

Posted by Eric at 10:14 PM | General | TrackBack

August 19, 2008

State of the Net West 2008 Recap

By Eric Goldman

Earlier this month, the High Tech Law Institute co-sponsored "State of the Net West," an event designed to facilitate a conversation between DC policy makers and Silicon Valley technology folks. We had a terrific turnout (especially given that we held it during peak vacation season) and some stimulating conversation. We recorded the discussion, so take a listen [these are at iTunesU, so you need the iTunes client to access them]:

* Welcome and Panel 1 on reputation, anonymity and social networking
* Panel 2 on 47 USC 230. See Larry Magid's writeup of this panel.
* Panel 3 on cloud computing and the privacy of remotely stored information. See a writeup of this panel.

Some interesting tidbits from the day:

* Rep. Goodlatte's son now works at Facebook
* Rep. Lofgren called the Roommates.com decision a "real stretch"
* Michael Fertik said that it only takes 20 minutes to ruin someone's reputation online while it can take 20-200 hours to repair the damage
* there was some discussion about ways that copyright law attempts to protect individual privacy. Copyright law wasn't designed to do that, so it functions poorly in that regard (and probably others). If you're looking for a paper topic, there may be some merit to exploring copyright's role as a privacy protection tool.

Posted by Eric at 06:10 PM | General | TrackBack

August 14, 2008

Fall 2008 Cyberspace Law Syllabus

By Eric Goldman

I've posted my latest Cyberspace Law course syllabus. Some changes from last year:

* added an August 2007 Search Engine Land article by Chris Silver Smith on geolocation technologies and their efficacy.

* added California Penal Code Sec. 502.

* added my slides on trespass to chattels and related doctrines (to save some classtime laying out these complex doctrines).

* added my Fair Use Cheat Sheet (I had routinely distributed it to students during the semester, but this year I finally remembered to include it in the reader).

* substituted the Second Circuit ruling Cartoon Networks v. CSC for the district court ruling in Cablevision. I deleted the Field v. Google case because it became largely redundant with the Cartoon Networks ruling for the pedagogical point about volitional activity.

* substituted the amended Ninth Circuit opinion in Perfect 10 v. Amazon.

* added the Ticketmaster v. RMG case. I'm not sure what to do with this case, but I'm thinking of using it as a mid-semester mini-review.

* deleted the Lockheed v. NSI case and added the Tiffany v. eBay case. The Lockheed case is probably more general in nature and is a 9th Circuit case (and it's a lot shorter!), so this was a tough call. On the other hand, I think the facts in the Tiffany case better reflect the modern web economy than the 1990s-era Lockheed case.

* substituted the Roommates.com en banc ruling for the 3 judge panel ruling. Fortunately, last year, by the time I got to Roommates.com, the 3 judge panel ruling had already been wiped away by the en banc grant, so I never had to teach that hairball.

* substituted the FTC's updated CAN-SPAM regulations.

* substituted the Fifth Circuit Doe v. MySpace ruling for the district court opinion.

* deleted the module on spyware/adware. I've not been able to get there in the past 2 years, and I don't see how that will change this year.

Cases from this year that barely missed the cut:

* A.V. v. iParadigms
* Mazur v. eBay
* Zango v. Kaspersky

I need to look at yesterday's Federal Circuit Jacobsen case. This may be a post-printing addition.

There are still some areas I'm not happy with:

* the Perfect 10 troika of cases regarding secondary copyright liability. They are a big chunk of reading with a low pedagogical payoff because the legal rules are incoherent.

* the keyword advertising cases. I'm still waiting for a great teaching case on keyword advertising. The FragranceNet case is an OK summary of the discussion, and the Playboy v. Netscape case has a number of useful pedagogical angles, but neither is ideal.

August 13, 2008

Economics of Reputational Information Talk

By Eric Goldman

I am nearing the end of my last major research project (the Brand Spillovers project--see [1] and [2]). I hope to post a near-final draft to SSRN in the next couple of months.

Meanwhile, I'm now moving on to my next major project, which I am currently calling "the Economics of Reputational Information." This project isn't an IP paper specifically, but it is a natural extension of my last couple of papers that discussed how trademarks could suppress socially useful Internet content. I presented some very initial thoughts about the project at IPSC last week at Stanford. My slides.

Posted by Eric at 04:48 PM | General | TrackBack

July 21, 2008

Teaching Cyberlaw Article

By Eric Goldman

As part of the recent St. Louis University Law Journal's issue on Teaching Intellectual Property Law, I published a short article entitled "Teaching Cyberlaw." The abstract:

"Over the past dozen years, Cyberlaw courses have become a staple of the law school curriculum. This Essay, part of a Spring 2008 St. Louis University Law Journal issue on Teaching Intellectual Property Law, explores methodological and pedagogical issues raised by these courses."

This article, based on my experiences teaching Cyberlaw for the past 13 years, organizes my thoughts about the pedagogy of teaching Cyberlaw, including course titling, doctrinal coverage, teaching materials and more. I think the article will be particularly interesting to folks teaching the course for the first time, but I expect veteran Cyberlaw professors will find a few interesting tidbits as well. I was given a limited word count cap, so I didn't intend to make this article exhaustive. Instead, I view it as a tentative and limited effort to help kick off a community discussion about how we teach the course.

On that front, I am scheduled to be the Chair of the AALS Law & Computers Section in 2009, which principally means that I will help organize the Law & Computers session at the AALS Annual Meeting in New Orleans in January 2010. (Hard to believe, but it's less than 18 months away!). One idea I've been considering is to have a panel discussion about Teaching Cyberlaw issues at that session. Comments/thoughts?

When i did my research for my Teaching Cyberlaw article, I didn't find any other law review-style articles that addressed Cyberlaw pedagogy at any length. Then, just as my article was going to press (and therefore after I could make any changes), a topical article emerged: Patrick Quirk, Curriculum Themes: Teaching Global Cyberlaw, International Journal of Law and Information Technology, March 2008. Quirk uses the article to enumerate 10 topical "themes" that are likely to be omnipresent in Cyberlaw courses both today and in the future:

"Where are we? (Jurisdiction),
Who are we? (Transacting via networks),
Who pays us? (E-money and funds transfer),
Who protects us? (Spreading and transferring transactional risk),
Who funds us? (The other type of computer ‘security’),
Who taxes us? (Who doesn’t?),
Who bugs me? (Network crimes and misdemeanors),
Who came before me? (Historical analogies for technology regulation),
Who watches (over) us? (Ubiquitous privacy issues),
The pervasive problems of intellectual property."

I definitely organize my course differently, but vetting different organizational approaches is part of the pedagogical fun.

Posted by Eric at 08:37 AM | General , Internet History | TrackBack

July 14, 2008

State of the Net West 2008, August 6, SCU

By Eric Goldman

I would like to invite you to attend State of the Net West 2008, co-sponsored by the Advisory Committee to the Congressional Internet Caucus and the High Tech Law Institute. This event is a complement to the very popular State of the Net event in DC held each January, which has become the "must attend" event for technology policy wonks and lobbyists. See my recap of this year's event. On August 6 at Santa Clara University, we'll have a West Coast version of the DC event, with three members of Congress guiding our discussion on cutting-edge policy issues related to Internet content protections. As usual, registration is free, so submit your RSVP here. I look forward to seeing you there!
__________

The full description:

In August The Congressional Internet Caucus Advisory Committee in collaboration with the High Tech Law Institute at Santa Clara School of Law cordially invites you to attend the 2nd Annual State of the Net West Conference on Wednesday, August 6th, 2008, in the California Room at the Benson Center of the Santa Clara University School of Law, from 8:30 a.m. to 2:30 p.m. The discussion will feature leaders of the Congressional Internet Caucus, including Congresswoman Zoe Lofgren, Congressman Mike Honda, and Congressman Bob Goodlatte. Other participants will include West Coast academic scholars, public interest advocates, and industry executives during a series of discussions on current, important technology policy issues. State of the Net West is designed to channel West Coast thought leadership from the academic community and private sector to help inform the technology policy issues being debated in Washington.

The State of the Net West Conference allows for bicoastal networking and dialogue on key policy issues to take place in the heart of Silicon Valley. Participate in lively debates exploring the following topics:

"Will Our Reputations and Privacy Survive the Age of Social Networking?"

"Can ISP Immunity Survive the Onslaught of Web 2.0"

"The Movement of Information from the Crowd to the Cloud"

The Congressional Internet Caucus Advisory Committee hosts the annual "State of the Net Conference" in Washington to frame many of the technology policy debates that Congress grapples with throughout the year. State of the Net has grown into the largest and most influential information technology policy conference in the country to discuss technology trends and the enormous challenges that lawmakers, industry leaders, and citizens must confront and resolve. While the State of the Net Conference has been an unmitigated success at framing the debate in Washington, an infusion of intellectual capital from the West Coast significantly enhances the State of the Net discussions.

Posted by Eric at 03:24 AM | General | TrackBack

June 07, 2008

Vacation and Guest Bloggers

By Eric Goldman

For the next two weeks, I will be enjoying a celebratory river-rafting trip on the Hulahula River in the Arctic National Wildlife Refuge. This is a supremely remote destination--it takes 4 airplanes to get there from the Bay Area (the last one being a bush plane that will land on a gravel bar of the river), and needless to say, it won't be possible to blog from there even if I wanted to.

While I won't be blogging for the next couple of weeks, long-time guest bloggers John Ottaviani and Ethan Ackerman will be around to keep the conversation going. I hope you enjoy their posts, and I'll see you the week of June 23.

Posted by Eric at 09:55 PM | General | TrackBack

April 29, 2008

Wikipedia Ethics Event, May 15 at SCU

By Eric Goldman

The High Tech Law Institute is cosponsoring (along with the Center for Science, Technology and Society and the Markkula Center for Applied Ethics) the following event:

The World that Wikipedia Made: The Ethics and Values of Public Knowledge
May 15, 2008, 6.30-8.00 p.m., de Saisset Museum, Santa Clara University
Speakers: Mike Godwin (GC of Wikimedia and one of the pioneers of Cyberlaw) and Carl Hewitt. Pedro Hernández-Ramos will moderate.
Admission is free; parking is $6. RSVPs aren't required.
More details about the event and bios for the participants.

This event should be a great opportunity to explore the ethical, legal and credibility issues associated with Wikipedia's editing structure (something I've critiqued before). I haven't heard Carl speak before, but I can confirm that Mike Godwin is a brilliant and entertaining speaker.

Posted by Eric at 05:46 PM | General | TrackBack

April 23, 2008

Two Open Positions at the High Tech Law Institute, Santa Clara University

By Eric Goldman

We're hiring! Please send interested candidates to the online job descriptions and application mechanism.
_________

The High Tech Law Institute (HTLI) is the umbrella organization that sponsors and helps administer Santa Clara University School of Law's well-regarded program in high tech and intellectual property law. Among other duties, the HTLI manages SCU's rich curriculum of high tech and IP courses and offers events for academics, Silicon Valley lawyers and others.

The HTLI is looking to fill two important administrative positions:

1) Assistant Director of the HTLI. See the job description.

2) Program Manager, HTLI. See the job description.

Each position provides an excellent opportunity for a motivated and entrepreneurial individual to play a pivotal role in defining and enhancing the services provided by the HTLI.

Interested applicants should submit an online application via the "apply" button at the end of the job description. We are considering applications as they arrive, so applicants are encouraged to apply as soon as possible. We would be very grateful if you could help spread the word!

Santa Clara University is an Equal Opportunity/Affirmative Action employer, committed to excellence through diversity, and, in this spirit, particularly welcomes applications from women, persons of color, and members of
historically underrepresented groups. The University will provide reasonable accommodations to all qualified individuals with a disability.

Posted by Eric at 09:16 PM | General | TrackBack

April 20, 2008

Bay Area Blawgers 3.0, May 20, Berkeley

By Eric Goldman

The High Tech Law Institute at Santa Clara University School of Law is pleased to sponsor Bay Area Blawgers 3.0, the third gathering of legal bloggers in the Bay Area and friends. This time we're thrilled to co-host the event with the Berkeley Center for Law & Technology at the UC Berkeley Law School. As we have done in the past, we'll spend about 1 hour of our time in a structured discussion, with the balance of our time for informal chit-chatting. The details:

When: May 20, 6-8 pm

Where: Goldberg Room, UC Berkeley Law School. Directions and parking.

Who: Everyone is welcome, but this event principally will cater to active legal bloggers. Bloggers and friends who have said they plan to attend include: Tsan Abrahamson, Jerry Bame, Hudson Bair, Robert Barr, Larry Downes, Eli Edwards, Bob Eisenbach, Cathy Gellis, Mark Goldowitz (maybe), Susan Gluss, Eric Goldman, Beth Grimm, Greg Haverkamp, Matt Holohan, Cathy Kirkman, Kimberly Kralowec, Ethan Leib, Cathy Moran, Joe Mullin, Deborah Neville, David Newdorf, Dana Nguyen, Chris Peeples, Aaron Perzanowski, Elizabeth Pianca, Mark Radcliffe, Ash Remwa, Colin Samuels, Jason Schultz, Tim Stanley, Stacy Stern, John Steele, Kevin Underhill, Tom Villeneuve, Fred von Lohmann, J. Craig Williams and Cicely Wilson. (This list will be updated as new blawgers and friends RSVP).

Cost: Admission is free.

CLE: This event qualifies for 1 hour of general CLE credit. Santa Clara University School of Law is a State Bar of California approved MCLE provider.

RSVPs: RSVP to Eric Goldman (egoldman@gmail.com).

Some background materials:

* Announcements of Bay Area Blawgers 1.0 and 2.0.
* Recap of the first gathering
* Photos from the second gathering at Fenwick & West's San Francisco office. More photos.
* List of possible discussion issues
* Census of Bay Area Blawgers

Posted by Eric at 05:05 PM | General | TrackBack

March 31, 2008

PLI Presentation on Social Networking Sites and Blogs

By Eric Goldman

Last week I gave a brief overview talk about social networking sites and blogs at a PLI conference. My slides. For each screen shot, you'll have to imagine some of the faux-witty remarks I might have made. To help you along as an example, on the fourth slide I noted that Ian Ballon doesn't look a day over 70. (You can see a different assessment of Ian's age here).

Posted by Eric at 10:09 AM | General | TrackBack

January 11, 2008

Top Cyberlaw Developments of 2007

By Eric Goldman

I have posted my annual Cyberlaw recap, enumerating the top 10 Cyberlaw developments from 2007, at InformIT. You'll have to read the whole thing to find out my votes for the biggest developments from last year (can you guess my #1???). From the article, some of the runners-up:

* Jammie Thomas Loses P2P File Sharing Jury Trial. Even a jury of our peers knows that P2P file-sharing of copyright works isn't legit.

* DVR-as-a-Service Isn't Permissible. You can record broadcasted shows on a device in your house. Just don't ask anyone to do it for you.

* AutoAdmit Controversy Spills Over Into a Lawsuit. Some sophomoric online banter among law students is all fun-and-games until someone gets sued.

* Commercial Referential Trademark Use Is Successful Defense. A trademark owner can't use trademark law to stop people chattering about its business on a message board.

* Anti-Spyware Vendor Protected by 47 U.S.C. 230(c)(2). A company that doesn't like being called spyware can't use the judicial system to force a different label.

Curious what I thought was more exciting than these developments? Go check out the whole thing!

As an aside, you may be wondering why I published the recap at InformIT instead of here on this blog. I've complained before about my crummy AdSense revenues. Apparently InformIT is much better at monetizing content than AdSense is, because InformIT pays me easily 100X (or more) what I would expect to earn by posting the article here. So whether InformIT is monetizing better or just spending like drunken fools, that ratio is enough to get my attention. As an added bonus, I spiked the InformIT article with generous links back to my site, and I never mind getting some extra link love from reputable third party domains.

Posted by Eric at 11:45 AM | General | TrackBack

January 08, 2008

Road Show Spring 2008

Some of the places I'll be this semester. As always, please let me know if I should plan to see you there!

January

Jan. 15: Best Practices for Businesses Exploring…Exploiting…and Expanding in Web 2.0, Pike & Fischer teleconference

Jan. 26: The Toll Roads: The Legal and Political Debate Over Network Neutrality, University of San Francisco School of Law. I'm moderating an afternoon panel.

Jan. 30: Congressional Internet Caucus Advisory Committee's 4th annual State of the Net Conference, Washington DC. Check out the panel I'll be on--there could be some sparks!

Jan. 31: Spyware: What's Worked, What's Left, and What's Coming, Anti-Spyware Coalition, Washington DC. I'm really excited about the panel topic of "Is Adware Dead?" I have some strong thoughts on this topic!

February

Feb. 1: Internet Collaboration: Charting the Waters of Virtual Worlds, Web 2.0, and the GPL, Santa Clara Computer & High Tech Law Journal. Judge Kozinski, a frequent presence on this blog, will be the keynote speaker, and the speaker list is studded with other luminaries.

Feb. 8-9: Fourth International Conference on Contracts, McGeorge School of Law in Sacramento.

Feb. 26 SMX West, Santa Clara

March

Mar. 24: Information Technology Law Institute 2008, Practicing Law Institute, San Francisco

April

Apr. 18: Co-sponsored event with Berkeley Center for Law & Technology to be held in Berkeley. This hasn't been publicly announced, but I promise you it will be relevant to this blog's audience and a top-notch event, so mark your calendars now.

Posted by Eric at 09:32 PM | General | TrackBack

December 31, 2007

2007 Blog Year-in-Review

By Eric Goldman

A look back at 2007:

* Despite the overall softness in the legal blogosphere market, all of the blogs' key metrics (unique visitors, visits, page views) roughly doubled in 2007 compared to 2006.
* Google represented about 90% of search engine referrals.
* Top 10 referral search terms: "sex.com"; "barbri class action"; "law professor salaries"; "law professor salary"; "eric goldman blog"; "donotcall.gov"; "facebook connectu"; "eric goldman"; "goldman"; "american blinds". This is the third year in a row that "law professor salary" was a top 5 referral term. I wonder why such a small number prompts such great interest?
* The blogs had about 320 posts this year. Top categories include derivative liability, search engines and trademarks, each with about 70 posts this year.
* According to Google Analytics, I had visitors from 184 countries, including countries with low Internet usage (<50k Internet users per CIA Factbook) such as Greenland, Guinea-Bissau, Andorra and Reunion.
* AdSense continues to disappoint. My eCPM has been progressively decreasing over time, and it's down to $1.60 in 2007. As confirmation of how poorly AdSense performs for my site, in the month of December, I earned about 3X from Amazon Affiliates program than I did from my AdSense on my blogs, even though I have affiliate links only on about a half-dozen pages (compared to the couple thousand pages displaying AdSense ads).

Blog Year-in-Review from 2005 and 2006

Posted by Eric at 10:45 AM | General | TrackBack

October 12, 2007

Bay Area Blawgers 2.0

By Eric Goldman

The High Tech Law Institute at Santa Clara Law School and Six Apart are pleased to announce Bay Area Blawgers 2.0, the second gathering of legal bloggers in the Bay Area. See a recap of the first gathering. This time, we'll spend an hour in a structured discussion starting around 6:15 (see some possible discussion topics). We'll spend the rest of the time schmoozing/chit-chatting.

When: November 5, 6-8 pm.

Where: San Francisco office of Fenwick & West, 555 California Street, 12th Floor, San Francisco, CA. Directions.

Who: Everyone is welcome, but this event principally will cater to active legal bloggers. People who have indicated they plan to attend: Tsan Abrahamson, Ann Althouse, Harry Boadwee, Michael Bond, Brian Crossman, Aviva Cuyler, Robert Eisenbach, David Friedman, Sujatha Ganesan, Cathy Gellis, Eric Goldman, Joe Gratz, Beth Grimm, Chris Hoofnagle, Kimberly Kralowec, Matthew Lasar, David Levine, Tom Levis, Ethan Leib, Susan Nevelow Mart, Mike Masnick (maybe), Mary Minow, Cathy Moran, Amy Morganstern, Joe Mullin, Keith Nagayama, Deborah Neville, David Newdorf, Bruce Nye, Kevin O'Keefe, Jay Parkhill, Bertrand Pautrot, Aaron Perzanowski, Benjamin Reyes, Scott Righthand, Colin Samuels, Jason Schultz, Derek Slater, Peter Smith, Tim Stanley, John Steele, Stacy Stern, Kelly Stewart, Victoria Stodden, Gene Takagi, Chris Vail, Colette Vogele, Fred von Lohmann, Julia Wei and Cicely Wilson.

Cost: Admission is free, but parking is not!

CLE: This event qualifies for 1 hour of general CLE credit. Santa Clara University School of Law is a State Bar of California approved MCLE provider.

RSVPs: RSVP are ESSENTIAL for this event because of security procedures at 555 California Street. RSVP to Eric Goldman (egoldman@gmail.com).

UPDATE: Michael Atkins of Seattle Trademark Lawyer Blog is organizing a similar gathering for Seattle-area blawgers.

UPDATE 2: Stanford CIS/SLATA scheduled an attractive complementary event for the same day (Nov 5 at noon) entitled "How Blogs Impact Legal Discourse."

Posted by Eric at 09:21 AM | General | TrackBack

September 12, 2007

Fall 2007 Tour Schedule

By Eric Goldman

L'Shanah Tovah! Here are some events I'll be attending this semester. It would be a delight to see you at one or more of these:

Sept. 17: Blogging, Scholarship and the Bench and Bar, Santa Clara University
Sept. 17: IT Security World, SF (topic: Blog Law)
Sept. 28-29: Works in Progress Intellectual Property, Washington DC
Sept. 29: TPRC, Arlington, VA (topic: Brand Spillovers)
Oct. 1: New Media Law Conference, SF (topic: Keyword Advertising)
Oct. 2: Trust Online, Santa Clara University
Oct. 5: Trademark Dilution: Theoretical and Empirical Inquiries, Santa Clara University
Oct. 18: Association of Internet Researchers, Vancouver (topic: investment decisions in virtual worlds)
Nov. 1: Jonathan Zittrain lecture, Santa Clara University
Nov. 5: Bay Area Blawgers, SF

Posted by Eric at 02:37 PM | General | TrackBack

September 10, 2007

Fall 2007 High Tech Law Institute Events

By Eric Goldman

I realize this is a self-serving assessment, but I think we have an absolutely terrific roster of events lined up this Fall! Check out some highlights:
________

Sept. 17, 10:30am-12pm. Blogging, Scholarship, and the Bench and Bar, sponsored by the American Association of Law Schools (AALS) & the National Law Journal. This panel will discuss the effect of blogs on legal scholarship, judges and practicing lawyers. To discuss these issues, we have some top-notch bloggers (Larry Solum and Paul Butler, and I'll be there too), Judge Berzon from the Ninth Circuit, and Cindy Cohn from the EFF. If you attend in person, you get the free CLE; alternatively, you can watch it live from your desktop via our real-time webcast. See the details here.
________

Oct. 2, 8:30am-2pm. Trust Online, co-sponsored with the Center for Science, Technology & Society, Markkula Center for Applied Ethics and Microsoft Corporation. This half-day event will gather lawyers, technologists and policy-makers to discuss how online businesses can engender trust from their users. The big name draw is Richard Clarke, but I'm equally excited to hear about some recent academic research by the always-interesting Chris Hoofnagle and Alessandro Acquisti.
________

Oct. 5, 8:45am-5:15pm. Trademark Dilution: Theoretical and Empirical Inquiries, a full-day academic conference on trademark dilution. Take a look at the schedule/speaker list and you'll see why I'm so excited about this conference. If an all-out trademark geekfest appeals to you, this really is a can't miss event. As a bonus, you'll get a boatload of free CLEs.
________

Oct. 12, noon-1pm. Prof. Mike Madison, Univ. of Pittsburgh School of Law, will give a faculty workshop on the topic of "Information Governance." This event is limited to academic faculty and staff; so please email me directly if you want to come.
________

Nov. 1, 6:30-8pm, Distinguished Lecture by the well-known and highly respected Cyberlaw Prof. Jonathan Zittrain, Oxford Internet institute, entitled “The Future of the Internet--And How to Stop It.” RSVP to Jasmine Pilgeram.
________

Nov. 5, 6-8pm. Bay Area Blawgers Roundtable at Fenwick & West's San Francisco office. This is the second gathering of local legal bloggers, following on the very popular first gathering from March. See my recap of the first event. I'll put out a more formal announcement later; for now, RSVP directly to me.
________

Check out our events page for the complete run-down. Hope to see you at these events!

Posted by Eric at 05:26 PM | General | TrackBack

September 07, 2007

August 2007 Quick Links, Part II

By Eric Goldman

* e360 Insight v. Spamhaus Project, 2007 U.S. App. LEXIS 20725 (7th Cir. Aug. 30, 2007). An email marketing company was listed on Spamhaus' ROSKO and sued for defamation and other torts in Illinois. Spamhaus took the position that US courts have no authority to render a judgment on a UK-based operation. The district court ultimately awarded $11.7M in damages and various equitable relief. The Seventh Circuit affirmed the default judgment but vacated the damages and equitable relief, sending those back to the district court to reevaluate the appropriate remedies. I understand that Spamhaus wanted to make a philosophical point by not fighting the lawsuit in the US, but had they overlooked their philosophical objections, they should have won a quick victory per 47 USC 230(c)(2).

* Perfect 10 has appealed its Ninth Circuit 230 loss in ccBill to the US Supreme Court.

* Search Engine Land had a good overview/recap article on geolocation technology. It provides a clear and easy-to-read explanation why the folks who think online businesses can just stay out of a state that enacts dumb regulations are full of crud.

* Pisciotta v. Old National Bancorp, No. 06-3817 (7th Cir. Aug. 23, 2007). Another court (this time, the Seventh Circuit) says that consumer fretting about possible future identity theft isn't enough harm to support a lawsuit. See the analogous JetBlue, Acxiom and Key cases.

* Wikipedia Scanner--an automated tool to determine who is editing Wikipedia pages. Katie Hafner's NYT article on the matter. David Hoffman does a little sleuthing on law firm edits.

* NYT: In the 1990s, a lot of people sought to build an infrastructure for micropayments. Consumers resisted them, but today those efforts seem a little silly--AdSense advertising can generate the same financial benefits for a web publisher without the overhead. Meanwhile, the credit card systems are being stretched to cover micro-transactions because merchants are aggregating a consumer's orders and processing them in bulk (rather than processing each one individually) as a way to reduce the transaction costs.

* NYT: "As video games have surged in popularity in recent years, politicians around the country have tried to outlaw the sale of some violent games to children. So far all such efforts have failed."

* AP: Chinese animated cops will be patrolling the Information Superhighway beat.

* Tired of negative reviews on Yelp, a San Francisco restaurant put up a sign saying "no Yelpers." I wonder if a sign like that lessens or exacerbates negative publicity.

* NYT: Book authors obsessively check Amazon sales rankings and try to game them.

* Facebook accidentally posted some of its source code to a public website. Surely an interesting development for ConnectU's discovery team!

* Another Internet company hires its own in-house economist--this time, virtual world Eve Online.

* A nice retrospective on the Cleveland Free-net, which at one point was a prominent component of the Cyberspace community.

* I have one free guest pass to the CLE International New Media Law conference in SF on Oct. 1-2. Free to the first person who sends me an email request. [SORRY--TAKEN!]

Posted by Eric at 09:48 AM | Content Regulation , Derivative Liability , E-Commerce , General , Internet History , Privacy/Security , Virtual Worlds | TrackBack

August 01, 2007

July 2007 Quick Links, Part II

By Eric Goldman

Virtual Worlds

* After a remarkable run as media darlings, Second Life is now experiencing some of the inevitable backlash. Case in point: Wired's "How Madison Avenue Is Wasting Millions on a Deserted Second Life." In this respect, Second Life reminds me a little of Keen.com--both provide fantastic platforms for monetizing user-generated content, but that powerful economic platform is likely to take root primarily in the sin businesses (porn, gambling, etc.). (FWIW, Keen.com appears to have cleaned up the dial-a-porn and is now focused exclusively on dial-a-horoscopes). As a result, it will be interesting to see what happens to Second Life's numbers in response to their anti-gambling crackdown. Meanwhile, lawyers--the classic late adopters--are gushing about Second Life's potential as a business generator--an interesting counter-perspective to the Wired article.

* World Copyright Law Report: "Some residents have been using a rogue version of a program called CopyBot to make a copy of anything in the Second Life world, thus threatening to undermine the whole basis of the Second Life economy."

Wikipedia

* More marketers wake up to the value of inserting links into Wikipedia despite Wikipedia's nofollow tag. See my earlier explanation of this. Meanwhile, a Wikipedia administrator talks about what Wikipedians consider white hat practices for marketers.

* Willing to cite to Wikipedia in your legal briefs? Need some custom-tailored authority to support your argument? Edit Wikipedia to say what you want!

* Mike Godwin has become Wikimedia’s GC. You may recall that Mike and I bet about Wikipedia’s future; it appears he has raised the stakes on that bet substantially!

User Generated Content

* "GC's Client from Hell": Whole Food's CEO John Mackey pseudonymously posted about his company's stock and his competitor's stock on Yahoo Finance. The WSJ article has some of the juiciest postings. The NYT on CEO "sock puppetry."

* A restaurant owner used consumer reviews from Yelp as part of deciding to fire employees.

* Interesting interview with the pseudonymous founder of a pay-for-Diggs business.

Blogs

* The ABA Journal has entered the crowded field of blawg directories with one of their own.

* Blawgworld 2007: 77 blawgers chose their favorite posts, which were compiled into an e-book. The compilation turns out to be a great way to get noisy blawgers to promote their brilliant contributions to the e-book, which generates traffic and link love for the publisher, which in turn creates a nice delivery vehicle for sponsored content/advertising.

Miscellaneous

* Asch Webhosting, Inc. v. Adelphia Business Solutions Investment, LLC, 2007 U.S. Dist. LEXIS 52932 (D. N.J. July 23, 2007). IAP terminates customer based on complaints that customer was a spammer. Court holds that the consequential damages waiver applies, effectively negating customer's alleged damages. Rejecting the customer's argument that the termination was in bad faith, the court says: "Plaintiff’s arguments about the accuracy of the spamming complaints do not change the Court’s determination because regardless of the ultimate accuracy or veracity of the spamming complaints, defendant was entitled to rely on those complaints so long as it did so in good faith, and plaintiff has not demonstrated any bad faith by defendant." HT: Technology Law Update.

* Consumer Law & Policy Blog: "companies in two recently filed federal cases explicitly invoke [the recent Supreme Court decision in] Leegin as a justification for terminating the eBay auctions of competitors that charge lower prices online."

* Declan on whether anti-spyware vendors are screening for "fedware" (government keystroke loggers designed to capture data before it's encrypted).

Fun

* More proof that technology can save lives: During a power outage at a hospital, doctors were able to complete a surgery using the light of open cellphones.

* I’m a new fan of Oddee. Some recent posts (it helps to think about sexual connotations when interpreting the photos):
- "15 Unfortunately Placed Ads."
- "Most Unfortunate Logos Ever"
- "Unfortunate Business Names.”

Posted by Eric at 11:06 AM | Adware/Spyware , E-Commerce , General , Internet History , Marketing , Spam , Virtual Worlds | TrackBack

March 24, 2007

Entrepreneurs & IP Talk

By Eric Goldman

I gave a talk to a group of local entrepreneurs on general IP issues in the process of being an entrepreneur. For most of you, this talk is very, very basic, but if you're interested, here are my slides.

Posted by Eric at 02:46 PM | General | TrackBack

March 14, 2007

Eric Goldman Road Show Spring 2007

By Eric Goldman

I have a busy schedule over the next 3 months. As always, I'd welcome the opportunity to meet, either at the events below or if I am in your neighborhood.

March 14: [TODAY!] Radio interview with David Levine on "Hearsay Culture." The live broadcast will air in the Bay Area between 5-6 pm on KZSU, 90.1 fm, or the podcast will be loaded here in the next week or so. David and I discuss domain name regulation, my Coasean Analysis of Marketing paper, online trademark law and anti-adware laws.

UPDATE: Podcast available here.

March 22: Originality, Software and Moral Rights with Prof. Bobbi Kwall

March 26: Virtues and Vices of Open Source Software with Prof. Eben Moglen

March 28: Bay Area Blawgers (about 2 dozen blawgers coming!)

April 5 (noon): Faculty Colloquium at SCU Law. Topic: Brand Spillovers. Please email me if you want to come (space is very limited).

April 6 (10 am): Law, Science & Technology LLM Colloquium, Stanford Law School. Topic: Brand Spillovers (yes, same topic as the day before). This event may have limited access to the public; contact me if you want to come.

April 13: Emerging Issues in Computer and Technology Law, SMU Dedman School of Law, Dallas, TX. Topic: Keyword Law.

April 30: When Spam Isn't Spam: An Unfiltered Look at Self-Regulation and the Law Behind E-mail, Touro Law School, Central Islip, NY. Topic: Anti-Spam and Anti-Blocklist Lawsuits: Past and Future.

May 14: American Law Institute meeting, San Francisco

June 7: 2007 International IT Law Conference, Southwestern Law School (Los Angeles). Topic: On-line Marketing Issues and What to Do About Them.

June 18: Fourth Annual Ecommerce Best Practices Conference, Stanford Law School. Topic: Navigating the Shoals of State Regulation.

Posted by Eric at 09:10 AM | General | TrackBack

March 07, 2007

March High Tech Law Institute Events

By Eric Goldman

The High Tech Law Institute at Santa Clara University School of Law has a terrific series of three events over the next few weeks. I hope to you can join us.

Originality, Software and Moral Rights (details here)
March 22, 2007, 5-7pm
Professor Roberta Rosenthal Kwall, DePaul University College of Law, will lead a discussion on the nature of creative endeavors, the role of moral rights, protection, and the application of these principles to software development. This should be a great event for technology lawyers who wrestle with moral rights issues when doing overseas development. RSVP to Jasmine Pilgeram by March 19, 2007.
This event qualifies for 1 hour of general CLE credit. Santa Clara University School of Law is a State Bar of California approved MCLE provider.

Virtues and Vices of Open Source Software with Eben Moglen (details here)
March 26, 2007, 5:30-6:45pm
Professor Eben Moglen, Columbia Law School, of GPL fame/infamy, will discuss his views on the merits of open source software development (and, I anticipate, the demerits of commercial software development), followed by some commentary/pushback by Prof. Geof Bowker and myself. Eben is a colorful, dynamic and frequently hyperbolic speaker, so I expect this event will be very fun and maybe a little controversial. If you work with open source software, this should be an especially interesting event. RSVP to Sherrill Dale by March 22, 2007

Bay Area Legal Blawgers Event (details here)
March 28, 2007, 6-8pm
We now have over 20 Bay area blawgers who have said they are coming, plus a few other non-blogging luminaries. (I'm constantly updating the original post to reflect the master list of attendees). This should be a great opportunity for local bloggers to meet-and-greet and trade tips. RSVP to me by March 26, 2007
This event qualifies for 1 hour of general CLE credit. Santa Clara University School of Law is a State Bar of California approved MCLE provider.

Posted by Eric at 03:40 PM | General | TrackBack

March 01, 2007

Bay Area Blawgers Get-Together, March 28, 6-8 pm

By Eric Goldman

The High Tech Law Institute at SCU Law is sponsoring a gathering for Bay Area legal bloggers/blawgers. Our goal is to get all of us together in a room to meet each other, socialize a bit, and discuss topics of common interest in a group discussion. Light refreshments will be served. The details:

Who: The event will cater principally to legal bloggers in the Bay Area, but everyone is welcome. Confirmed blogger-attendees so far include Harry Boadwee, the Blawg Review editor, Matt Cutts of Google (75% confirmed), Stephen Diamond, Mike Dillon of Sun, Sean Garrett of 463 Communications (trying to make it), Cathy Gellis, Eric Goldman of SCU, Joe Gratz of Keker & Van Nest, Beth Grimm, Patrick Guevara of Randick O'Dea, Matt Holohan, Chris Hoofnagle of Boalt, Cathy Kirkman of Wilson Sonsini, Kim Kralowec of the Furth firm, David Levine of Stanford Law CIS, Mike Masnick of TechDirt, Mary Minow, Kurt Opsahl of EFF, Jay Parkhill, Leah Peachey of Meyers Nave, Aaron Perzanowski of Boalt, Elizabeth Pianca of Meyers Nave, Kristie Prinz, Colin Rule of eBay/PayPal, Colin Samuels, Erik Schmidt of SCU, Jason Schultz of EFF, Mark Smith of SCU, John Steele of Fish & Richardson, Transmogriflaw, Kevin Underhill of Shook Hardy, and Colette Vogele. Other expected attendees include Craig Anderson of the SF Daily Journal, Bob Cullen, Rudy Guyon of Fujitsu, Tom Levis of Backweb, Jan Lewis of Wilson Sonsini, Kevin Martin of Randick O'Dea, Amy Morganstern, Elizabeth Nevis, Benedict O'Mahoney, Risa Schwartz of Cisco, Martin Stone, Andrew Tolve, Cicely Wilson of Justia and Louis Wu.
When: March 28, 6-8 pm
Where: Wiegand Room, Arts & Sciences Building, Santa Clara University. Directions to campus.
Cost: Free. Parking is available for $5
CLE: This event qualifies for 1 hour of general CLE credit. Santa Clara University School of Law is a State Bar of California approved MCLE provider.
How: Please RSVP to Eric Goldman.

Feel free to pass along this notice to anyone you think might be interested.

UPDATE: A superset of possible discussion topics we might address at the event.

UPDATE 2: A roster of the Bay Area Blawgers I could find.

UPDATE 3: My recap from the event.

Posted by Eric at 12:20 PM | General | TrackBack

February 21, 2007

Cyberspace Law Readers--Free to Good Home

By Eric Goldman

[UPDATE: Sorry, they are all gone!]

I have six leftover casebooks from my Cyberspace Law class last semester. These are lightly edited compilations of cases and statutes that I teach in class. (See my syllabus for the table of contents). Email me if you want a free copy--first come, first serve, and only to US mailing addresses.

Posted by Eric at 10:16 AM | General | TrackBack

January 10, 2007

December 2006 Quick Links

By Eric Goldman

* JP Enterprises, Inc. v. HDVE, LLC, 1:06-cv-01046-REB-PAC (D. Colo.). In June 2006, JP Enterprises sued Yahoo for selling its trademarks for keyword-triggered ads. In December, JP Enterprises and Yahoo stipulated a dismissal of the case against Yahoo (the remaining defendants weren't affected), presumably based on a settlement.

* Domain name valuations continue to rise. The latest overvalued domain name? Vodka.com, selling for $3M. This totally perplexes me. Can you imagine what $3M of well-spent PPC advertising would do?

* Amidst the TLD proliferation, ICANN is thinking about retiring some TLDs, such as .su for the (extinct) Soviet Union.

* According to ClickTales, "76% of the page-views with a scroll-bar, were scrolled to some extent[, and] 22% of the page-views with a scroll-bar, were scrolled all the way to the bottom." From a legal standpoint, currently we assume that content “below the fold” usually is legally irrelevant. However, if users routinely scroll down on pages, this may require rethinking.

* Forbes' special report: "Books." Especially interesting stories:
- The Secret Life Of An Online Book Reviewer
- Cory Doctorow, Giving It Away
- Stop Worrying About Copyrights
- Publish And Perish (about picking storage media to archive human knowledge)
- The Networked Book (about using blogs as a complement to the book authoring process)

* How about this manipulative practice? Yelp, the local consumer review guide, pays "marketing assistants" to leave positive comments for review authors to "help make Yelp appear to be a vibrant and outgoing community in hopes that it will actually become one." As the BusinessWeek article says, "Some reviewers may be turned off by the notion that an ostensibly disinterested fellow user is getting paid to compliment their writing." Ya think? Hiring professional back-patters crosses my line.

UPDATE: I got the following email from Jeremy Stoppelman, founder of Yelp:

The Businessweek article is misleading so I can understand how you got that impression. Our system breaks down as follows:

Community Managers - responsible for local marketing & pr, organizing yelp events (offline) and for welcoming people to the site. People who are active in the community generally know this person (and that they are an employee) since they are organizing local events and emailing users all the time.

Marketing Assistants - the first people in a new market (that has little-to-no community), they are paid to update our crappy yellow pages data and write some of the first reviews (e.g. make the site not empty). We initially suggested they get active (post on talk, compliment if someone shows up), but turned away from that quickly (for the same concerns you raised).

The only critique left is that these people aren't badged and I totally understand this issue (minor, but real). Therefore we decided before Christmas break we should badge all our marketing & community staff. This change should be out later tonight.

* The magazine Nature has ended its experiment with an open peer review process. Why? According to the AP, "The journal concluded that many researchers were either too busy or had no real incentive in evaluating their colleagues' work publicly. In addition, none of the editors found the posted comments influenced their decision whether a paper gets published." No point in manufacturing metadata if it's not going to change the decision anyway! But this raises a related question--what incentives are needed to produce useful metadata?

* As written up in the NYT, Sao Paulo has outlawed a wide variety of outdoor advertising, including billboards, leaflets, advertising on the sides of buses/taxis, and via airplanes and blimps, and has promulgated strict rules on commercial signage. This is a radical experiment in the effort to reduce visual clutter by squelching the availability of a major class of advertising. But Chris Hoofnagle (who pointed out the article to me) wonders, where are these ad dollars going to go? Presumably they will be redirected into different ad media, with uncertain consequences. For more on the effect of regulation in one advertising medium on advertising in other media, see my Coasean Analysis of Marketing article.

* In response to the Google/China flap, the State Department in February 2006 established the Global Internet Freedom Task Force (GIFT). On December 20, the GIFT issued a press statement outlining its "GIFT Strategy" consisting of 3 principal points:
- MONITORING Internet freedom in countries around the world
- RESPONDING to challenges to Internet freedom.
- ADVANCING Internet freedom by expanding access to the Internet.
I wonder if this effort will moot the need for the Global Online Freedom Act?

* BusinessWeek article on domain tasting (with the wildly hyperbolic title "The Great Internet Brand Rip-Off"--an editor ran amok!). Domain tasting always has struck me as a silly issue. Of course if you offer marketers a way to get exposure to consumers for free, some of them will abuse it! But I just have to believe that the legitimate utility of the 5 day refund period is low, if not zero. So the refund period should be killed, and consumers who make a typographical error when registering domain names should be SOL (much like it's almost impossible to fix an error if a consumer buys the wrong non-refundable airline tickets).

* Rick Skrenta: "RIP DMOZ: 1998-2006."

* AP Story updating the Steinbuch v. Cutler case. The case is in discovery now, and there's no sign that it will avoid a trial.

* Tom Smedinghoff wrote an excellent recap of last year's developments in the field of information security law: Where We're Headed — New Developments and Trends in the Law of Information Security.

* In December, Shuman (Google's click fraud czar) reportedly said that Google's click fraud rates were less than 2%, but then Google backpedaled and obfuscated about what Shuman had really said. In yet another terrific post, Danny sorts through the mess and tells us what we know and don't know about click fraud rates. Read the whole thing.

* Jeffrey Rohrs is one of the people I trust for expert opinions. I don't agree with his plaintiff-side orientation, but I respect his perspectives. He's written an analysis of the click fraud issue that he calls the Sausage Manifesto. A recap of Google's responses to the manifesto.

* Jennifer Granick predicts that EULAs and the law of mass surveillance will be the hot legal issues of 2007. Both seem good bets; I'd add to that list that this year we'll spend a lot of time irresolutely chasing our tail on the net neutrality issue.

Posted by Eric at 10:00 AM | Domain Names , General , Licensing/Contracts , Marketing , Privacy/Security , Search Engines , Trademark | TrackBack

January 04, 2007

Cross-Border Legal Challenges in High Tech Law, January 26

By Eric Goldman

Our student-run Computer & High Tech Law Journal is putting on a conference, Cross-Border Legal Challenges in High Tech Law, January 26 at the San Jose Museum of Art. See the conference website. It would be great to see you there.

Posted by Eric at 06:04 PM | General | TrackBack

January 01, 2007

2006 Blog Year-in-Review

by Eric Goldman

Most Popular Blog Posts of the Year

1) O'Reilly and the "Web 2.0" Trademark
2) NYT on Fair Use and Documentaries (overflow from Slashdotting of #1)
3) GEICO v. Google Opinion (Finally) Issued
4) Competitor's Keyword Ad Purchase May Be Trademark Infringement--Edina Realty v. TheMLSonline
5) Lane's Gifts Click Fraud Lawsuit Near Settlement
6) Keyword Purchases Not a Trademark Use--Merck v. Mediplan Health Consulting
7) Griper Gets 47 USC 230 Defense for Reposted Article--D'Alonzo v. Truscello (I'm not sure why this post made the top 10 list. I think it may be fueled by comment/referral spam)
8) Downloading Music Isn't Fair Use--BMG v. Gonzalez
9) Search Engine Liability for Selling Keywords Redux--800-JR Cigar v. GoTo.com
10) KinderStart Second Amended Complaint

Overlooked Posts (some of my favorites that didn't get the traffic they might have)

* Unlawful Internet Gambling Enforcement Act of 2006
* Princess Bride and Jurisprudence
* Slinky Factory Tour
* Sexy Professors are Better Professors (?)
* Trademark Travesty of the Month--SMJ Group v. 417 Lafayette Restaurant
* Teenager Busted for Creating Fake "News" Story
* Piracy Loss Estimates as a Managed Number
* Your License, Registration and DNA, Please? (by Ethan Ackerman)

Blog Statistics

* The number of unique vistors in December 2006 was over double those in December 2005, and total visits and pageviews for the year were about 3X that from 2005. It's unclear how much of this was due to comment/referral spammers and other robotic activity.
* Google provided 88% of the referrals from search engines (last year it was 78%).
* Top 10 search phrases used by referrals to find the blog: geico, sex.com, barbri class action, 50.cent oprah, law professor salary, eric goldman blog, gifts for professors, law professor salaries, eric goldman, donotcall.gov
* The blogs have a total of about 860 posts, of which about 300 were made this year. Most commonly blogged categories include search engines (67 posts this year), derivative liability (47 posts), trademark (43 posts), copyright (37 posts) and adware/spyware (27 posts).
* As with last year, only about half of blog visitors used Windows Internet Explorer as their browser.
* Visitors came from over 150 countries, including Australia, Germany (#2 and #3), Malawi and Saint Vincent & Grenadines (with 8,000 Internet users in 2005 per the CIA factbook)
* Ad clickthrough rate of 0.38% with eCPM of $2.41. I'm not thrilled with these numbers.

2005 Blog Year-in-Review

Posted by Eric at 05:20 PM | General | TrackBack

December 29, 2006

My Wikipedia Page is Safe (For Now...)

By Eric Goldman

In my last post on Wikipedia, I mentioned that my personal Wikipedia page had been tagged "article lacks information on the importance of the subject matter." Shortly thereafter, things took the inevitable turn for the worse--the page got nominated for deletion. The Wikipedians huddled on a discussion page and failed to reach a consensus: 7 voted to keep the page, and 7 voted to delete it and/or merge it into another page. Apparently, this preserves the status quo, so my Wikipedia page was saved from deletion for now. It's not exactly the most ringing endorsement, but it's better than having to report to mom that Wikipedia deemed me "non-notable"!

UPDATE: I feel a little better now that I know Matt Cutts was nominated for deletion too. This is the problem of having contributions from people who aren't experts in the applicable area.

Posted by Eric at 03:42 PM | General | TrackBack

December 14, 2006

Site Outage and Comments

By Eric Goldman

The website and blogs had a 4+ hour outage today. My web host pulled the plug (sadly, without warning me) because "it was crashing the server with 250 other customers on it. Something on your website is causing very high server loads." We haven't been able to determine the cause yet, although comment spammers are the most likely culprit. So to convince the web host to put me back online, I agreed to shut down comments for now. Because I'm going to be in Israel for most of the rest of the year, I'm going to leave comments off until January. I'll reassess what to do then. Sorry for any inconvenience if you tried to access the blog and got the scary "this website has been suspended" notice.

Posted by Eric at 12:28 PM | General | TrackBack

August 13, 2006

Fall 2006 Cyberlaw Syllabus

By Eric Goldman

I've posted the syllabus for my Fall 2006 Cyberspace Law course. As I have done for the past 11 years, I prepared my own materials. To do so, I cull through all of the action from the past year to see what changes I should make from the prior year's syllabus. In the late 1990s, a lot--1/3 to 1/2--of the pages would change from year-to-year. In the past couple of years, this pace has slowed considerably. This year, I added only 3 new cases and 1 new statute to the reader:

* the Lamparello case (which I actually substituted in last year after I prepared my 2005 syllabus)
* Perfect 10 v. Google and Field v. Google. They make an excellent compare-contrast unit. They also provide enough material to moot the 2003 Ticketmaster ruling, which I dropped this year.
* I substituted in the Alaska anti-adware law to replace Utah's anti-adware law.

Beyond those additions, I substituted in the 7th circuit ruling in the BMG v. Gonzalez case for the district court ruling, and I dropped the FTC v. Phoenix Avatar spam case and my short editorial on advertiser liability for adware (neither of which I had time to cover).

I could make an argument that the past 12 months have been comparatively slow in cyberlaw (by cyberlaw's historical standards), at least in terms of significant precedent. There have been some fairly important rulings (the KinderStart, JR Cigar, Merck v. Mediplan and Edina Realty cases come to mind) and interesting developments (the Sony DRM episode, click fraud lawsuits and the battles over search engine queries come to mind), but very few of these cases or episodes resulted in important/pedagogically useful precedent or statutes. Not that I'm complaining--it may just be a sign of cyberlaw's maturation.

Interestingly, although blog law is hot, I couldn't really find anything useful to teach on the topic. I think this reflects that blog law is just a seamless part of cyberlaw. As a result, I'm sure I'll integrate blog issues into the course throughout the semester.

Posted by Eric at 08:34 AM | General , Internet History | Comments (2) | TrackBack

July 26, 2006

Blog Law Recap

By Eric Goldman

Spring was a busy time for blog law! This post recap some blog law resources:

* My talk on blogs and intellectual property at the Milwaukee Bar Association (newly posted)
* Notes from my talk on blog law and my experiences as a blogger (newly posted)
* My paper on the law of co-blogging (joint blogging, group blogging and guest blogging)
* EFF's Legal Guide for Bloggers
* Recap from blog law conference at Univ.of North Carolina
* Recap from Bloggership conference at Harvard
* Blog post on risks of employee blogging

Some blog posts about the mechanics of blogging:

* How to decide which blogs to read
* Should you become a blogger?
* How to get started as a blogger
* Vanity monitoring tools (ways to track who's talking about you or your blog)

Finally, if you're interested, my blogroll. Note I add and drop blogs pretty frequently.

Posted by Eric at 11:20 AM | General

June 27, 2006

June 2006 Quick Links

By Eric Goldman

I have had virtually no Internet access over the past 10 days due to my move and travels, so my Bloglines account was bulging with more than 1700 articles. Here's a quick look at some of the items that have caught my attention this month:

* The FTC announced its own data breach due to a stolen laptop. Hmm...is it just me, or is this incident dripping with irony?

* Microsoft appears to be in its "benevolent" dictator mode again. Last year I blogged about how Microsoft made the unilateral decision to wipe some "malicious" software off users' computers without user notice or consent. (If it makes you feel any better, AOL has done the same thing). Now, Microsoft is installing mandatory software that phones home and doesn't tell users it's phoning home. Most people would categorize the phone home capability as spyware, and I'll be interested to see how the undisclosed feature doesn't violate 18 USC 1030(a)(2)(C). Yet, as Andy Patrizio wonders, where's the outrage? The consumer protection lawsuits? Andy writes:

All manner of hell broke loose over the major phone companies reportedly cooperating with the National Security Agency over international phone calls, but the news that Microsoft is watching every single Windows XP PC has been met with deafening silence.

Suzi rounds up the situation.

[UPDATE: First lawsiut over WGA filed. I'm sure more are coming.]

* JP Enterprises v. Yahoo, No. 06-cv-01046-REB-PAC (D. Colo. amended complaint filed June 6, 2006). Complaint against Yahoo Dating and other dating sites for purchasing keywords of a competitor, LoveCity. I'm not optimistic about the plaintiff's chances here, given that it doesn't seem to understand the differences between metatags and keyword triggers. Also, note the irony that Yahoo is buying ads from competitor Google.

* The WSJ writes about the accuracy of recommendation engines. The article explains how consumers make some decisions based on brand perceptions rather than actual utility they derive from the product. As a result, recommendation engines do a better job serving consumer desires by watching consumer behavior rather than relying on self-reported consumer preferences.

This also raises interesting implications for the role of brands in the search process. Brands may help consumers find what they think they are looking for, but at the same time may interfere with utility maximization. To avoid this, one recommendation engine contemplated hiding brands from the consumers.

* Heidi Cohen states the obvious. (Well, she and I think it's obvious, but apparently most marketers still don't get it.) Marketers are in the content publishing business, so they need to think like publishers, not marketers. And, from a policy standpoint, this continues to reinforce the illusory line between marketing content and editorial content.

* Another shocker: Marketers pay-for-placement in editorial content in print publications.

* Michael Scott (from his new blog, Singularity) writes a fun article about the implications of three generations of cyberlawyers: the veteran "computer lawyers" from the 1980s (that includes him), the dot com boomers from the 1990s (which I belong to), and the post-dot com busters from the 2000s.

* More evidence of "banner blindness." As usual, consumers can organically adjust to annoying marketer tactics if legislators avoid jumping into the fray.

* Finally, an article on fake consumer reviews. This is hardly the first article on the topic, but interestingly it hints that some merchants may be outsourcing/offshoring the creation of fake reviews. Forget click fraud shops in India and gold farming in China; those are passe. Instead, here's a new possible tort for you plaintiffs' lawyers--review "fraud"?

Posted by Eric at 05:50 PM | Adware/Spyware , General , Internet History , Licensing/Contracts , Marketing , Privacy/Security , Trademark

May 11, 2006

Quick Links May 2006

By Eric Goldman

My blogging queue has gotten too thick. Here's some items that caught my attention that I've been meaning to blog and simply haven't gotten to.

* I previously blogged about Chris Wilson, the website operator who allowed users to post pornography and was then prosecuted for distributing pornography under state law. I argued then that such prosecutions were immunized by 230. According to AP, in January, Chris pleaded no contest to 5 counts of possession of obscene material (this news report sounds garbled; the crime of possessing obscene material, without more, should protected by Stanley v. Georgia). For this, in April, he was sentenced to 5 years probation.

* Deborah Wilcox has written an article about situations when trademark owners should NOT send a trademark cease-and-desist letter. Given how many trademark plaintiffs' lawyers mistakenly shoot first and ask questions later, this article raises an important but overlooked perspective.

* The blogosphere is doubling every six months. 4 million bloggers update their blogs at least weekly.

* Cedric reports that, in February, Google finally won an AdWords case in France.

* 310,000 consumers were affected by Lexis-Nexis' data breach. Lexis-Nexis offered them a free year of credit monitoring services. Only 6% took Lexis-Nexis up on the offer, a number that's similar to other such offers (Citibank only had a 4% signup rate). Bob Sullivan tries to figure out why. Among the theories:
- consumers discarded/ignored the notification as junk mail
- consumers were suspicious that the free offer wasn't going to be free in the end
- consumers are apathetic about privacy issues
I have my own speculation about this, but I think the time for relying on intuition is long past. Instead, I think further empirical research is critical before more legislatures robotically rubber-stamp existing legislation designed to remediate data breaches. I remain suspicious that these mandated solutions are doing nothing to help the problem, and may in fact be exacerbating the problems.

* Barton Beebe's slides from his presentation, US Contextual Advertising Law, at the Fordham International IP conference in April.

Posted by Eric at 09:03 AM | Adware/Spyware , Content Regulation , General , Privacy/Security , Search Engines , Trademark

May 02, 2006

North Carolina Blogging Conference Recap

By Eric Goldman

Sorry to post yet another conference recap on blog law, but it's been a busy conference season, and everyone wants to talk about blogs! I previously blogged on my presentation at the University of North Carolina's conference on employee blogging. At the end of the day, the conference organizers asked me to recap my observations about the day. Here's how I summarized the conference.

I divided my observations into three categories: what we know, what we don't know, and some predictions for the future.

What We Know

1. There's no such thing as a "private blog." It's an oxymoron. Think of all the people who have learned this lesson the hard way: Jessica Cutler, who used her supposedly limited-distribution blog to share some very intimate details; Jay Kuo, an attorney who blogged on a live case in a password-protected blog and got rebuked by the judge for it; and the many, many students who are making regrettable postings to their MySpace, Facebook or LiveJournal pages (even though places like Facebook limit access). Blog posts restricted to an Intranet may, in theory, remain limited in their distribution, but even then, bits have a funny way of migrating to the most unwanted places.

Because blog posts are effectively public, blog posts are effectively permanent. They live on forever as part of the author's permanent record. Thus, the maxim: "blog in haste, regret at leisure." The ease of blogging seduces people to blog first and ask questions later, but the permanence of blogging makes such tactics unwise.

2. Speech is Good, Speech is Bad. At the conference, Ed Cone said that blogs are "dangerous but useful." This is exactly right. Blogs are generating good speech and bad speech. It would be a mistake to oversimplify the output in either direction--both good and bad speech are an integral part of the blogging phenomenon.

3. Blogs Put Pressure on Companies That Rely on Secrecy/Data Scarcity. The proliferation and democratization of information makes it very hard to sustain businesses that rely on data scarcity or secrecy. Ed Cone gave the analogy of a basketball game. There's a certain secrecy inherent in playing the basketball game inside a closed pavilion. With bloggers recording every move during the game in real-time, the value proposition derived from the game's secrecy degrades. As a result, the game operators aren't selling access to information, and they make a huge misstep trying to do so by futilely restricting the flow of information. Instead, they need to sell other stuff that can't be easily replicated in an information-rich environment. Thus, the businesses that thrive in the blogging era will build businesses that make more money from the widespread dissemination of data.

Along this lines, companies with branded products need to realize that they are in the business of building fan bases. Blogs can help build fan bases by disseminating information to the company's most dedicated customers, thereby rewarding and further encouraging their loyalty. Thus, companies may find value in building their own blogs, and they should tolerate company-related blogs built by the company's fans.

4. Employers Need to Educate, and then Trust, Their Employees. It is unrealistic to expect employees to know what's appropriate/inappropriate regarding blogging without any training. Instead, companies should educate and train their employees about blogging. And, where an employer has decided to restrict employees' blogging activities, the employer should explain the rationale for the restriction so that employees know both the "what" and the "why" and can better apply the rules themselves. At the same time, with adequate training, employers should then trust their employees to make good choices rather than assuming the worst about employees.

What We Don't Know

1. While we know that blogging will produce a mixture of good speech and bad speech, we don't know how to develop restrictions that curtail unwanted speech without also affecting desired speech.

2. It's easy to say that businesses should build businesses that generate value from speech proliferation due to blogging, but it's not clear how businesses will do that. (If I knew how to do this, maybe I could afford a house in Palo Alto!)

Predictions for the Future

1. 10 years from now, it will seem bizarre that we had a standalone conference on blog law. Blogs are just a subset of Internet-mediated communication--nothing more (and nothing less). As Ed Cone said, "blogs are not exotica." After the novelty of blogs wears off, we'll realize that they are just another communication medium, and we'll stop trying to treat them as unique.

2. Corporation-sponsored blogging will increase as a way to grow and cater to brands' fan bases.

3. People will make poor choices about blogging--they will use blogs to do stupid things, make stupid posts, and generally engage in bad behavior. This is basic human nature.

4. Despite the glut of poor choices, I think there will be less blog-related litigation than we might expect. Typically, there just won't be enough money involved to fight about.

Posted by Eric at 02:21 PM | General

April 29, 2006

Bloggership Conference Recap

By Eric Goldman

I spent yesterday at the Bloggership: How Blogs are Transforming Legal Scholarship conference at Harvard Law School. As one might expect, the day was filled with self-referential navel-gazing of the first order, kicked off by Paul Caron's introduction that provided a battery of statistics proving that we thought we were an important group. Here's my notes from the conference:

Doug Berman provided some evidence that law review articles have grown in length over the decades, in part because it has become technologically feasible to write long articles. The articles have also grown less practitioner-oriented. Blogging can fill those gaps by providing shorter commentary that helps practitioners. As a result, blogging fills all three of the main duties of law professors: teaching, scholarship and service.

Larry Solum said that scholars want their works read. To get readers, scholars have to reduce the costs of reading. These costs will be lowered by shortening articles and removing copyright limitations. Thus, he predicted that the future of legal scholarship is "short form" (as opposed to lengthy) open access articles.

Kate Litvak was supposed to be the token naysayer by explaining why bloggers need to get over themselves. Instead, she disappointed the bloodthirsty with a surprisingly mild critique of blogging--she argued that blogging is just one of many changes currently taking in legal scholarship, and perhaps not an especially important one.

Paul Bulter commented on the first three panelists. He was the most rah-rah blogger of the day, declaring blogs "amazingly cool." He also had the best soundbites. He said that bloggers are walking up to legal scholarship and slapping it in the face. In support of this, he drew an analogy that blogs +> legal scholarship is like music videos => movies--in other words, the short and quick nature of blogs will reshape legal scholarship just like music videos have changed the editing and scripting of movies. He concluded that "blogs are about power to the people." (My link, not his)

In response to the question "Is Blogging Scholarship?," Jim Lindgren had a very Jewish response of answering the question with his own question: "Why did you want to know?"

Ellen Podgor said that she may be the first person to affirmatively ding someone in their P&T letter for failing to keep up with the blogosphere. (Note to Ellen: even though I think your remarks were designed to lift the spirits of bloggers, the mere suggestion that some P&T reference letters might contain negative feedback sent most of us untenured folk into a tailspin!).

Gail Heriot said that she found blogging fun, and this created an internal conflict for her: does she want blogging to be recognized as scholarship for legitimate reasons, or because she just wants an excuse to keep having fun?

Orin Kerr talked about the "tyranny of reverse chronological order"--how the presentation of posts by date obscures the most valuable posts.

(Note: I think Orin has a good point. Because of this phenomenon, I rarely make "non-substantive" posts on my blog so that the top post is invariably a significant post. I have also noticed that when one of my blog posts gets a lot of traffic, the immediately following blog post gets overflow traffic (it gets a prominent link in the upper right corner that really catches people's attention). Because of this phenomenon, I don't want to have a blah post following a major hit, and I often don't know which post will be a major hit. So I cut down on the non-substantive posts to minimize that. And if I think a post will be a hit, I try to follow it up with a topically-relevant post so that I can enhance the spillover effect.)

(Having said all that, I don't think the tyrannical effect Orin fears is all that significant. There are lots of ways to merchandise and display blog posts, so there will be evolving solutions. Plus, a lot of blog traffic comes from deep links and search engines).

Gordon Smith gave examples of how he used his blog to engage in a scholarly discourse about the Disney opinion.

Randy Barnett followed up on Gail's talk by warning about the "flight from scholarship." He said that blogging is a temptation to avoid doing scholarship because scholarship is hard. He amused the crowd by observing that many professors don't like to do scholarship because it's hard, but then again many professors don't like to teach and almost no professors like to do university service--making all of the law professors in the room question whether we really have a great job. (We do).

Michael Froomkin talked about how he has different writing voices--he runs different blogs with different voices for each. He also announced the "Journal of Things We Like (Lots)" (or Jotwell.com), a place where people can provide short critiques of law review scholarship as a way of calling attention to the good scholarship that others should read.

Glenn Reynolds spoke by videoconference. (Always a tough thing to do, although he did it well). He explained why bloggers don't get sued for defamation very often and why they should be excused from liability in many cases.

Eugene Volokh gave various examples of how legislators have protected speech beyond the constitutional imperatives of the First Amendment. He raised an interesting question that I hadn't really considered before and can't recall seeing discussed in the literature--could someone raise a constitutional challenge to 47 USC 230 because it provides different levels of protections to different types of media? My instinct is no, but I could see this question being more complicated. If this hasn't been covered in the literature, it seems like an excellent law review article. I wonder if plaintiff will bring this constitutional challenge.

I spoke a little about the liability facing bloggers who work together, such as group blogging and guest blogging arrangements. See my talk notes here. My principal point is that group/guest bloggers are in for some surprises. For example, 47 USC 230 might be defeated if a plaintiff can show that the bloggers were in a partnership or employment relationship, and a blogger might lose the ability to stop republication of his/her posts upon departure from a blog if the arrangement is characterized as a partnership, or the blogger is an employee, or if the blog posts are considered to be contributions to collective works under 17 USC 201(c). I didn't mean to scare bloggers about these issues, but I think a lot of bloggers--including law professors--aren't paying adequate attention to these issues, so I wanted to raise the profile of these issues. Read my entire paper here.

Betsy Malloy talked a little about the importance of anonymous blogging.

Dan Solove said that we are celebrating the blogger as "Davids" against the Goliaths (such as the thesis of Glenn Reynolds' book). However, he explained how the Davids are romanticized as responsible parties who are trying to build personal reputations, but the reality is that most bloggers are teenagers who may not fit our romantic ideal.

Larry Ribstein talked about "publicly engaged academic posts" or "PEAPs." Some of us thought he might be talking about marshmallow peeps.

Ann Althouse described her very laissez-faire attitude towards blogging--it's fun, and it's liberating to press "publish" and then be presented with a new blank window to be populated with new thoughts.

Chrstine Hurt talked about blogging while untenured. She said the two big risks of blogging were that it takes time and risks unfavorable exposure. But then she explained that blogging saves her time by forcing her to keep up with and self-organize the literature (which allows her to get a faster start on her scholarship come summer) and disciplining her to keep her reading/blogging within a fixed time block of her day. Exposure depends on the type of blog the professor maintains. (Or, as she asked in reference to Gordon Smith's cheese obsession: "What will your cheese ratio be?"). A blog that is non-law related can have lower risk of negative exposure, but doesn't do much to build the professor's reputation in the law professor community. Meanwhile, the exposure provided by blogs can open up doors--Christine explained how it allowed her to meet a lot of people who would have never known about her otherwise. (Certainly, both Christine and I felt very fortunate that our blogs opened the door to participate in such a terrific event).

Howard Bashman described how his blog had generated new clients for him. He also said that journalists seek out links from his blog (not vice versa!).

Peter Lattman described how his reporting is affected by reading blogs. From his perspective, journalists view blogs as useful resources, not competitors.

An interesting aspect of the conference. The event was scheduled during reunion weekend at Harvard Law School, and I believe it was billed as a way for alumni to get free CLE. As a result, there was a steady stream of alumni coming and going, many of whom had badges with little labels saying that they were attending their 25th, 35th, 40th or even 50th reunion. I don't want to overstereotype this group, but many of them were elderly men who, I suspect, had never read a blog in their lives. This created an interesting cultural dynamic in the few situations when the blogger crowd interacted with the alumni crowd. The most visible is when one alumnus asked if the bloggers wanted him as a reader. TWO different panelists said (only partially in jest) "no, I don't want you as a reader" right to his face! Ouch!

Many thanks to Paul Caron for organizing a great event and to the Berkman Center for hosting the event.

Other recaps:

* Tim Armstrong (a thorough and insightful recap with links to comments on all of the panels)
* Doug Berman
* Ann Althouse
* Dan Solove (a caricature post)
* Opinio Juris/Roger Alford (a collection of quotes from the event)
* Larry Solum (see April 28)
* Eric Muller
* Jim Lindgren
* Larry Ribstein

Ian Best provides the most thorough meta-post.

Posted by Eric at 02:58 PM | General | Comments (2)

April 26, 2006

Employee Blogging Risks

By Eric Goldman

A couple of weeks ago, I spoke at the North Carolina Journal of Law & Technology's symposium called "Attack of the Blog: Legal Horrors in the Workplace." (I definitely did not pick the name!) In the morning, I spoke about the risks that companies face when their employees blog. I see blogging as a subset of Internet communications generally, so I'm not sure these risks are limited to blogging. Nevertheless, the following risks are possible:

Non-Legal Risks

* Employee relations risk. A personal dispute between employees could be taken online, triggering a flame war or exposing the personal dispute to a broad audience within and outside the company.

* Customer relations risk. Employees could make disclosures that undermine customer confidence in the company's products by revealing too much about the company's inner workings or by disparaging the company's products. Employees could also oversell customers by making overstated claims about the products.

* Reputational risk. Employees might make personal disclosures about other employees/stakeholders that degrade the overall public perception of the company.

Legal Risks

* Admissions. Blog posts could be party admissions. Even if not, they could be adverse evidence introduced in litigation.

* Trade Libel. Employees could actionably disparage competitors' products.

* Disclosure of Non-Public Information. There are several ways that employees could convert non-public information into public information in ways that have legal significance.

- If the company is publicly traded, these disclosures may manipulate the stock price or constitute securities fraud
- Employees could undermine the company's position by tipping off competitors about plans in the works. If the employee publishes company trade secrets to the blog, in most cases that information will be irretrievably lost as a trade secret.
- Employees might disclose third party trade secrets, which could lead those third parties to bring a trade secret misappropriation claim.
- Employees might disclose patentable information that jeopardizes the company's ability to obtain a patent using that information. For example, a blog post should start the 1 year clock ticking under 102(b). Similarly, if the foreign patent applications have not yet been filed, the blog post should negate the company's ability to seek foreign patents on the published information. This is a real gotcha that may catch some unsuspecting companies.

Conclusion

Just to be clear, I'm not convinced these risks are all that serious. The emergence of blogs might lower the guard or caution of employees, but all of these risks would exist even without blogs, and most employees will make good choices. Even so, some employees will make poor choices, and thus companies who are concerned about employee blogging might choose to address blogging as part of an overall policy on Internet usage or disclosure of company information. At the same time, employee blogging can be a significant asset to the company, so companies might look at employee blogging as an resource to nurture rather than risky behavior to squelch.

Posted by Eric at 08:05 PM | General , Patents , Trade Secrets

April 24, 2006

Bloggership Conference and Co-Blogging Law Paper

By Eric Goldman

On Friday, I'm participating in the "Bloggership: How Blogs Are Transforming Legal Scholarship" symposium at the Berkman Center for Internet & Society at Harvard Law School. This event is shaping up as a world class blogger-fest. If you're in the Boston area on Friday and want to experience "oral blogging" first-hand, you should definitely come! Or, at least come to the after-party from 9-11 pm where we'll all be hanging out and socializing. If you introduce yourself to me as a loyal reader, I might even buy you a libation. (If you don't know what I look like, see here--then add 4 years, subtract some hair, and add a few pounds).

If you can't make it in person, you can listen in via the webcast. Or, you can just wait for the inevitable torrent of post-symposium blog posts. Given the panel composition, I'm fairly confident that this event will be one of the most heavily-blogged-about events in the short history of blogs.

Whether you participate, listen in, or just sit silently bemused by all of the navel gazing, you should check out the symposium papers. I think this is a remarkable collection of papers about blog law and the role of blogs in advancing social knowledge.

My contribution to this collection is comparatively pragmatic. The paper is called "Co-Blogging Law" and takes a practical look at the legal consequences of joint/group blogging and guest blogging. It's still in draft form, so I'd very much welcome any comments. The abstract:

Bloggers frequently combine their efforts through joint blogging and guest blogging arrangements. These combinations may be informal from a social networks perspective, but they can have significant and unexpected legal consequences. This Essay looks at some of the ownership and liability consequences of co-blogging and guest blogging. To do so, the Essay will consider different possible legal characterizations of co-blogging, such as partnership, employment and joint ownership. The Essay concludes with some recommendations to minimize the implications of unexpected legal characterizations, including encouraging bloggers to make private agreements, educating bloggers about their choices, and exercising judicial restraint

I hope to see you in Boston!

UPDATE: The Friday after-party will be at Zephyr Lounge in the Hyatt Regency Cambridge, 575 Memorial Drive.

UPDATE 2: I must have been confused--the after-party was a pre-party on THURSDAY niight--sorry if I steered you in the wrong direction. But please come to the conference!

Posted by Eric at 07:19 AM | General

April 17, 2006

Movable Type Upgrade and Liberalized Comments Policy

By Eric Goldman

I've upgraded the blog to the new version of Movable Type with the comment spam filter that everyone is praising. So I'll experiment again with allowing comments without a Typekey account. I hope the lower barrier to entry will encourage you to comment more freely. Meanwhile, we'll see if the comment spammers nail the blog again....

Posted by Eric at 02:36 PM | General

April 06, 2006

Goldman from Marquette to Santa Clara

By Eric Goldman

Starting next academic year, I have accepted an appointment as an Assistant Professor and Director of the High Technology Law Institute at Santa Clara University School of Law. The school's news release. I have posted more details and some personal thoughts here.

Posted by Eric at 11:43 AM | General

March 09, 2006

Smoking Gun on Movie Budgets

By Eric Goldman

The Smoking Gun runs an interesting feature on movie budgets. Among the goodies include the entire line-by-line budget for the movie "The Village," and various excerpts from other budgets of movies by M. Night Shyamalan. Very interesting reading if you're interested in Hollywood accounting...or if you're curious about movie star paydays and perks.

Posted by Eric at 08:16 AM | General

January 15, 2006

My Own Wikipedia Page

By Eric Goldman

Previously, I found my own personal search engine spam page. That was surprising but it wasn't very thrilling. In contrast, I was pretty excited to find my own Wikipedia page. I recognize that Wikipedia is (mostly) open-access, so the barriers to getting a vanity Wikipedia page are virtually zero. But I didn't create this one myself, and I don't know "Ancheta Wis" (the page creator).

So, what did I do that was noteworthy enough to prompt a stranger to create a Wikipedia page about me? (This is one of those tough existential questions--what do I want to be remembered for in history?) Was it my brilliant contributions to legal scholarship? My unparalleled performance as a legal educator? My heart-felt devotion as a husband and father? My freakish Slinky obsession?

Of course it was none of that. Instead, it was my bet with Mike Godwin that Wikipedia will fail in 5 years. In other words, what got the attention of the Wikipedia editors was my discussion about their future. It appears that Wikipedians are as self-referential as law professors!

Now, I'm caught in the dilemma faced by Jimmy Wales--should I edit my own biography? I know LOTS of FASCINATING details about the page's subject matter... Actually, I don't currently plan to edit the page with one glaring exception. If, in 2010, it looks like my prediction is wrong, I'll edit the page to flip the bet around (i.e., so that Mike predicted that Wikipedia will fail).

Posted by Eric at 05:07 PM | General | Comments (1)

January 01, 2006

2005 Blog Year-in-Review

By Eric Goldman

I generally avoid overly self-referential postings, but this post is a glaring exception. In this post, I'll recap some of the blog highlights (and lowlights) of the past year, covering both this blog and my personal blog. I hope you find this at least mildly interesting.

Top 10 Blog Posts (excluding category pages)

1. What Happens to BitTorrent After Grokster? (by Mark Schultz). This post got 50% more page views than the next closest post.

2. Sony, DRM and Trespass to Chattels

3. Important 2d Circuit Adware Case--1-800 Contacts v. WhenU. This is one of my favorite posts of the year.

4. Grokster Supreme Court Ruling

5. Steinbuch v. Cutler Update--Cutler's Motion to Dismiss. This one got unexpectedly large traffic from a Wonkette link (Its tagline: "Politics for people with dirty minds").

6. Artists' Rights and Theft Prevention Act--New Criminal Copyright Infringement Standards

7. Adware Witchhunt Gone Awry

8. Is Sony's DRM Spyware?

9. Grokster Ruling Commentary

10. Wikipedia Will Fail Within 5 Years. I think my statistics generally were distorted by referral spam, comment spam and other robotic activity, but this post's top 10 placement may be due to robots because it got 225 robotic comments in 3 days.

Undiscovered Gems

Some of my favorite blog posts that you may have overlooked.

* Faculty Activity Reports

* Product Placement and the Apprentice TV Show

* Infomediaries--Where Are They?

* Spyware, the Pew Report, Anti-Terrorism Efforts and Coping with Spam

* Taxes, Attention Consumption and Competition

There were some fantastic posts from guest bloggers that may have been overlooked as well--check out Mark Schultz's Stealing Mickey's Mojo, Mark McKenna's Branded Products as Ingredients, John Ottaviani's Federal Circuit Refuses to Register Pennzoil's Clear Motor Oil Bottle as a Trademark and Judge Patel: Maintaining An Index of Downloadable Files is Not "Distributing" the Files, and Ethan Ackerman's Law Enforcement Collection of DNA.

Lowlights

With almost 600 posts this year written at "blog speed," not surprisingly the bottom 1% of posts aren't that great. Among my least-favorite posts: low-value-added posts (e.g., here and here), inflammatory posts, and error-riddled posts (e.g., here, here and here). By definition, I'll always have a bottom 1% of posts, but in 2006 I'll endeavor to avoid such obvious mistakes.

Some Blog Statistics

* 573 posts this year, or about 2/day since the blogs began in early February. The most common topical categories include copyright (87 posts), adware/spyware (85 posts), search engines (77 posts) and trademarks (77 posts).

* Visitors from over 140 countries, some obscure (e.g., Burkina Faso, Moldova) and some tiny (e.g., Faroe Islands, with only 25,000 Internet users in 2002).

* 78% of the search engine referrals came from Google. The next closest was Yahoo with 10%. The top search keyword used to find the blog? "Law professor salary."

* Reflecting the blog's techie audience, about 10% of readers use a Linux OS instead of Windows, and less than half use Microsoft Internet Explorer as their browser.

AdSense (this also covers my personal website)

For the year, the websites had a clickthrough rate of 0.5% (i.e., 1 out of every 200 pages with ads generated a click) and an ECPM of about $3.75 (i.e., every pageview containing ads generated less than half a penny).

I'm not complaining too much about my modest AdSense earnings, but at the same time I think the websites have a lot of untapped revenue potential being obscured by AdSense's poor automated assessments. In particular, I'm frustrated by the omnipresent "Smart Link Marketing"/www.Text-Link-Ads.com display ads that are just not relevant or useful to this audience. I understand that presumably these ads generate more total revenue than other ads that Google might display, but this is because AdSense's algorithms are missing a lot of good keywords. For example, ads for anti-spam or anti-spyware/adware products would be very high CPC and relevant to the audience, but AdSense figures that out pretty rarely.

Thanks for Reading

If you've read this far, you're either a loyal reader or a voyeur (if you're the latter, sorry to omit the juiciest stats like total visitors, pageviews or AdSense earnings, but I don't want to embarrass myself by confirming that the blogs are small potatoes). Either way, thanks for reading in 2005, and I look forward to your continued readership in 2006. Have a wonderful new year!

Posted by Eric at 10:04 AM | General

October 31, 2005

Domain Name Outage This Morning

By Eric Goldman

This morning the blog suffered an outage due to a problem with the domain name renewal. With Rex's help, we got everything straightened out and we should be back in business. Fortunately, the domain never really left my host's control, so there was never a serious risk of porn-napping. I will say this, though--the administrative procedures to manage a domain name at a place like GoDaddy are very taxing, even to me.

Posted by Eric at 04:55 PM | General

September 29, 2005

IP Blogs (and Other Blogs) Worth Considering

By Eric Goldman

Yesterday at a CLE conference in Minnesota, I spoke on a panel about IP blogging with Marty Schwimmer and John Welch. Collectively, we combined our blogrolls to create a master list of the blogs that the three of us read. If you want to check out our collective "wisdom," you can find the list (annoyingly, in Word format) here.

Posted by Eric at 06:07 PM | General | Comments (1)

Women and Law School

By Mark McKenna

If I told you that a famous professor from a well-known law school was arguing on his/her blog that law schools should consider discounting their tuition by 1% for each year a graduate stayed in the work force (with the purpose of encouraging attendance by those to whom the law school education would add the most value), what school would you guess that professor was from? It's an easy question for me - University of Chicago, where everything can be reduced to dollars and cents. And that's precisely right - it's Judge Posner, responding to an article in the New York Times a couple of weeks ago about how some female Yale undergrads expect to leave the workforce at some point after having children [The article was not empirical, and it has been very controversial].

I think Posner is greatly oversimplifying the economics involved here. The evidence pretty clearly suggests that fewer and fewer people are advancing to partnership at big firms (where the big money is), as firms create ever more heirarchical structures. Thus, going to law school with the expectation of making a lot of money down the road is becoming more and more like a lottery, with lots of people buying tickets and few hitting the jackpot. [I realize that, in the big scheme of things, first year associates making $135,000 is hardly peanuts. But I take it that Posner is talking about people who stay in the workforce for a long time, and you can't stay an associate forever]. But people's willingness to pay huge amounts of money to go to law school is based in large part (and, according to Posner, should be based entirely) on that person's expected lifetime return. Lifetime return, of course, is determined by the supply and demand in the market for attorneys - and that market presumes that a certain percentage of lawyers will drop out, whether to raise children, become a high school english teacher, or whatever. If we adopted Posner's system, it seems to me that the expected return would have to go down, since supply of attorneys would rise without any reason to believe demand would rise at the same time. Thus, students' willingness to spend exorbitantly on law school may well go down.

I don't know whether that would happen or not, but it seems to me an equally plausible scenario as Judge Posner's, and determining which one is more likely requires a lot more data. This is one of the reasons I have a hard time with law and economists sometimes - you can make a lot of assumptions that greatly oversimplify reality and then smuggle in normative goals under the guise of "neutral" economics. And it seems to me that is precisely what Posner is doing.

On its face, that point has little to do with marketing. Dig a little deeper though, and you'll see that a great deal of the economic assumptions made in the context of trademark law are just the type of assumption Posner made. They assume that consumers will behave in certain ways and make little attempt to empirically demonstrate that behavior. Those assumptions are normatively loaded, but they are often expressed as though they were neutral descriptions of the way the market works. It doesn't have to be that way; we can learn a lot about consumer behavior if we only learn to ask the right questions.

As a final, and to some extent unrelated point, let me loop back to the beginning of my post. I asked at the outset which school you would associate Judge Posner's position with. If it was an easy answer for you as it was for me, it is because the University of Chicago has done a good job of branding itself. What we make of that brand is a different, and more interesting, question.

Posted by Mark McKenna at 03:09 PM | General , Marketing , Marketing | Comments (1)

September 13, 2005

More on Shortsightedness

By Mark McKenna

Guest blogger Brett Frischmann has a really good post over at madisonian.net. He argues that at least some of the problems New Orleans has experienced in the aftermath of Hurricane Katrina are consequences of shortsightedness. I've been thinking a lot about this lately, in very similar terms.

Brett notes that much of the destruction could have been avoided if we had only invested in infrastructure. We don't because the benefits of those investments are fuzzy and won't be realized until sometime in the distant future. The costs, on the other hand, must be incurred now. This certainly is true in the context of New Orleans, but there's a much broader point to be made here, which Brett hints at. Shortsightedness is pervasive in American public policy.

In his article, Brett mentions social security and the environment as examples of our failure to invest current funds to avoid much more expensive problems down the road. There are many other examples that could be added to the list. The budget deficit is an obvious place to start.

There are several less obvious examples too. We have very good information about the kinds of programs that work to reduce violent crime and keep young kids involved in productive activities. Nevertheless, our prisons are bursting at the seams. Because we refuse to make the necessary investments, we have a much more expensive problem on our hands down the road. A similar story could be told about early childhood education. Unfortunately, but predicatably, the costs of shortsightedness tend to fall disproportionately on those who can afford it least. There's another level on which class has everything to do with the hurricane.

So what in the world does this have to do with technology and marketing? Not very much, except that cognitive science has a lot to say about the natural tendency to be shortsighted. Maybe if we pay more attention to that tendency we can work to offset it.

Posted by Mark McKenna at 01:38 PM | General | Comments (3)

September 01, 2005

Guest Blogger Mark McKenna

I'm pleased to introduce Mark McKenna as a guest blogger. Mark is an Assistant Professor of Law at St. Louis University School of Law, where he teaches IP courses and civil procedure. Prior to becoming an academic, Mark was a trademark and copyright litigator at Pattishall, McAuliffe, Newbury, Hilliard & Geraldson in Chicago. Mark has been doing some interesting work on the trademark and right of publicity fronts, so I'm looking forward to his contributions.

The timing of Mark's and Ethan's stints as guest bloggers is directly related to a new addition to the Goldman household. I'm very grateful to all the guest bloggers for their contributions while my attention is stretched particularly thin.

Posted by Eric at 07:10 AM | General

August 29, 2005

Guest Blogger Ethan Ackerman

I'm pleased to introduce Ethan Ackerman as a guest blogger. Ethan Ackerman is an attorney in Washington DC and previously has been a legislative and technology counsel in the US Senate. He wrote portions of the CAN-SPAM Act and was an amicus attorney in Wahington v. Heckel, one of the early landmarks in spam law. I expect that he will have a lot to say about spam issues, but I welcome his contributions on all fronts.

Posted by Eric at 09:31 PM | General

August 14, 2005

Fall 2005 Cyberlaw Syllabus

It's hard to believe that this is going to be my 11th year teaching Cyberlaw. I've posted my newest syllabus for Fall 2005. The material I've assigned for the first time this year:

Copyright

* BMG v. Gonzalez (confirming direct liability for file sharers)
* Grokster Supreme Court ruling
* 17 USC 506(a) (showing the additions from the ART Act)
* Corbis v. Amazon (an extremely lucid opinion applying the 512 safe harbors--this is an overlooked gem of a case from a pedagogical standpoint)

Trademark

* Bosley v. Kremer (the case nicely encapsulates several facets of a gripe site lawsuit, including infringement, ACPA and SLAPP)

Spam

* My article on the harms caused by spam
* 16 CFR 316 (the various regulations promulgated under CAN-SPAM)
* FTC v. Phoenix Avatar (the case describes in accessible terms the complex evidentiary and financial trail that anti-spam enforcers must unravel)

Adware/Spyware

* The Congressional Research Service report
* 1-800 Contacts v. WhenU 2nd Circuit ruling
* Utah Spyware Control Act (amended)
* My CNET editorial on adware advertiser liability

ALthough this may seem like a lot of changes, it's noticeably less than I've historically made. I think this lower rate-of-change reflects that we are slowly but undeniably developing a body of "classic" cyberlaw cases that are both important precedent and good teaching cases, such as Specht, Hamidi, Reno v. ACLU and Zeran. I also have my "hidden favorites" that aren't especially important cases but still fun to teach, like the Noah, Promatek and Pharmatrak cases.

I did struggle a little with organizing the trademark cases. I don't think there's a single definitive teaching case for trademarks yet that nicely illustrates infringement (and applicable defenses), dilution and ACPA. Instead, I have five trademark cases that each make important but limited points:

* Bosley--good illustration of a gripe site lawsuit, but holding is fairly limited (narrow illustration of what constitutes use in commerce)
* Promatek--great illustration of initial interest confusion (especially with the bell-ringing line), metatags, how the parties can lose sight of the big picture and how judges cut corners, but hardly a traditional trademark infringement analysis
* Lockheed v. NSI--best teaching case for contributory infringement, but effectively mooted by ACPA's safe harbor for registrars
* Playboy v. Netscape--important case on keyword usage and search engines, but the case is extremely disorganized and error-filled
* 1-800 Contacts--important discussion on use in commerce and user control over their software, but very fact-specific

Worse, these five cases are spread out over the sections on trademarks, search engines and adware/spyware. I'd welcome any suggestions on other ways to think about and organize the trademark materials.

Meanwhile, if you want a blast from the past, consider my syllabus from Spring 1996. I taught this course shortly following Netscape going public, before the Communications Decency Act (it passed during the semester) and the resulting litigation, before the Zs (Zippo, Zeran and Zuccarini), and before the DMCA. Back then, "spam" meant Canter & Siegel's inappropriate postings in USENET, "crypto" was one of the top items on EFF's agenda, and the words "adware" and "spyware" had not yet been coined.

As a sign of the changes since then, I continue to teach precisely ZERO of the materials I assigned. However, a small number of the materials would still be useful today; for example, I do still teach John Perry Barlow's essay in my copyright seminar. Of course, some things never change. I taught a Playboy case in 1996, and I teach a Playboy case today (surprisingly, only 1). I suspect some Playboy case will be part of every Cyberlaw packet forevermore.

Posted by Eric at 01:20 PM | General , Internet History

August 01, 2005

New Case Law Lists

Sorry for the catch-all posting, but I have uploaded several new resources to my website:

A list of online contracts cases (emphasizing, in particular, online contract formation).

A list of online service provider liability cases (copyright, trademark, 47 USC 230).

A list of initial interest confusion cases.

None of these lists are intended to be comprehensive, but I use them as databases for their respective topics. I hope you find them helpful.

Posted by Eric at 04:42 PM | Derivative Liability , General , Licensing/Contracts , Trademark

June 28, 2005

Guest Blogger--Mark Schultz

I'm pleased to introduce Mark Schultz as a guest blogger. Mark is a law professor at Southern Illinois University, where he teaches intellectual property courses and legal ethics. Prior to becoming a law professor, Mark was an IT and IP attorney at Baker & McKenzie and the Pattishall firm (both in Chicago). Mark and I share many common interests, and I'm looking forward to hearing what he has to say.

Meanwhile, John Ottaviani will continue to guest-blog. Only a vacation kept him away from sharing his thoughts on Grokster yesterday (an omission that I'm sure will be cured on his return...!).

Posted by Eric at 09:11 AM | General

June 23, 2005

EFF's Legal Guide for Bloggers

The EFF has released the wonderful resource “Legal Guide for Bloggers.” It successfully strikes a delicate balance between being comprehensive, accurate and accessible to lay readers. If you’re wondering about the law of blogging, this guide will most likely answer your questions.

Unfortunately, the guide doesn’t address a set of topics on my mind: the relationship between joint bloggers and issues raised by guest bloggers. I expect to see fights over attribution, the blog title/URL, use of postings after the relationship ends, and even who gets the AdSense revenue. Unfortunately, the law in this area is destined to be complex and counterintuitive. Joint bloggers may very well be treated as “partners” under the applicable corporations law, subject to a complex set of statutory defaults. Therefore, it would make a lot of sense for joint bloggers to have a “Joint Blogger Agreement” spelling out their relationship, although I am guessing that virtually no joint bloggers (even lawyers/law professors) have anything of the sort. I have yet to see any models or examples posted online.

Meanwhile, I do plan to say more about the legal issues raised by guest bloggers. Indeed, this summer I plan to draft and enter into a “guest blogger agreement” with John O. I’ll post a copy when I draft it.

I understand why the EFF’s guide doesn’t get into these topics—they are peripheral at best to the EFF’s core objective of encouraging bloggers to exercise their free speech rights. Therefore, even with these omissions, I still heartily recommend that all bloggers read the EFF guide.

Posted by Eric at 10:59 AM | Content Regulation , General

May 19, 2005

Travel Plans and Presentations

I'll be on the West Coast for the next three weeks. During that time, I’ll be making three presentations:

Conference: Second Conference on Online Deliberation: Design, Research, and Practice / DIAC 2005 at Stanford University
Topic: Media Regulation and Deliberative Democracy (raw paper draft)

Conference: Law & Society Association Annual Meeting in Las Vegas
Topic: Trademark Adjacency (I haven’t prepared my notes yet)

Conference: International IT Law Conference at Southwestern University School of Law in Los Angeles
Topic: 47 USC 230 (I’ll post a detailed handout on 47 USC 230 cases when I get back)

During my travels, I will have spotty access to the Internet, so I won’t be blogging at the normal level (I’ll blog when I can). In my absence, John Ottaviani will continue to guest-blog, so look forward to more good posts from him.

I’ll be back in Milwaukee June 13, so my blogging should return to normal then.

Posted by Eric at 11:26 AM | General

May 12, 2005

Internet Explorer Market Share Dips Below 90%

Microsoft’s share of the browser market has dipped below 90%. On my blogs, the numbers are even less favorable for Microsoft. Consider my blog stats in the month of May (so far):

“Unknown” 50.9 % (I believe this includes RSS readers and robots)
Internet Explorer 26.3 %
Firefox 10.9 %
Mozilla 6 %
Konqueror 2.2 %
Opera 0.8 %
Safari 0.8 %
Netscape 0.8 %
NetNewsWire 0.7 %
Lynx 0.1 %

In other words, excluding the unknown traffic, IE accounts for only 53.6% of my hits. Admittedly I skew towards a tech audience, but these stats certainly suggest that IE’s lock on the browser marketplace is experiencing significant pressure.

Posted by Eric at 03:06 PM | General , Internet History

May 11, 2005

MacMillan on RSS

Robert MacMillan at the Washington Post wrote a very good column on the joys and limitations of RSS, harping on the fact that it’s not as simple as it should be (I agree). RSS is one of those technologies where you don’t realize how much you need it until you try it. I now have over 40 blogs and websites in my RSS reader, and I can check all of those sites instantly with a single click of a button. There’s simply no way I would be able to keep up with these sites otherwise. And for sites that don’t have an RSS reader, well, either I’m not reading you at all or you are at a high risk of being dropped from my daily routine.

I use SharpReader as my RSS reader. SharpReader is pretty good—I haven’t had any bugs, and the user interface is acceptable (not great, not bad). The big downside is that it doesn’t check my RSSed sites when I’m out of the office, and that usually means that I will miss some postings from some websites (especially high-volume sites like News.com and Slashdot). Hey, News.com and Slashdot—your RSS feeds should not drop articles so quickly! An RSS website like Bloglines would solve my travel problem as well, but I haven’t made that switch.

For any of my readers not using RSS, you should really get onto the RSS system. [Alternatively, if you're not ready to make the leap, I can add you to an email list to be notified when I post new items (unlike RSS, this is not self-service; I have to add you manually).] You will love RSS because it will save you the time of having to check each website manually. However, on balance, it will probably cost you time as you significantly increase the scope of material you monitor!

Posted by Eric at 09:21 AM | General

May 04, 2005

Guest Blogger--John Ottaviani

I'm pleased to introduce John Ottaviani as a guest blogger. John is a partner at Edwards & Angell in Providence, RI. John practices technology and IP law and is co-chair (along with me) of the Intellectual Property subcommittee of the Cyberspace Law Committee of the ABA Business Law Section. John has a lot to share, so I'm looking forward to his contributions.

Posted by Eric at 09:40 AM | General

February 16, 2005

A blog worth watching

There are a lot of good blogs out there, and at some point I’ll provide a list of the ones I check regularly. But today, by accident, I stumbled across the Guiding Rights blog by Mark Partridge and immediately added it to my RSS reader. Looks like a low volume but high quality contribution to the blogosphere.

Posted by Eric at 10:06 AM | General

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