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, Robert Barr, Larry Downes, Eli Edwards, Bob Eisenbach, Cathy Gellis, Eric Goldman, Beth Grimm, Greg Haverkamp, Matt Holohan, Cathy Kirkman, Kimberly Kralowec, Ethan Leib, Cathy Moran, Joe Mullin, Deborah Neville, David Newdorf, Dana Nguyen, Aaron Perzanowski, Elizabeth Pianca, Mark Radcliffe, Ash Remwa, Colin Samuels, Jason Schultz, Tim Stanley, Stacy Stern, John Steele, Kevin Underhill, 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:
Most Popular Blog Posts
1) The Most Effective Anti-Terrorism Law EVER
2) Utah Bans Keyword Advertising
3) Rescuecom v. Google Law Professors' Amicus Brief [overflow from #1]
4) Sex.com -- An Update
5) Regulating "Stealth" Marketing [overflow from #2]
6) Keyword Ads and Metatags Don't Confuse Consumers--J.G. Wentworth v. Settlement Funding
7) American Airlines Sues Google Over Keyword Ads
8) Search Engines Defeat "Must-Carry" Lawsuit--Langdon v. Google
Some Posts You Might Have Missed the First Time Around
* The Victorian Internet
* Best and Worst Internet Laws
* Gifts for Incoming First Year Law Students
* Israel Trip Reflections
* Suggestions for Conference Organizers
Blog Statistics
* 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.
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