In the early 2000s, the Internet was eclipsing other mass media like print publications and broadcasting.  Panicked by this development, some scholars projected a dystopian future where Internet users would create their own "Daily Me" (a term popularized in Nicholas Negroponte's 1995 book, Being Digital [affiliate link]) of customized information sources.  As people relied on their Daily Me instead of traditional media sources, the dystopians feared that people would only consume information that reinforced their existing beliefs, rather than being serendipitously exposed to content that challenged or conflicted with their existing perceptions.  For example, in his 2001 book Republic.com [affiliate link], Cass Sunstein wrote:

For countless people, the Internet is producing a substantial decrease in unanticipated, unchosen interactions with others.

The resulting lack of intellectual diversity may produce "echo chambers," where only like-minded people talked to each other and reinforce each others' own increasingly polarized viewpoints.  This in turn jeopardizes core democratic principles.

The past dozen years have suggested that these dystopian fears aren't completely unfounded.  As one example, many people now rely on social media as a primary news source.  In many cases--especially with "bi-directional" services like Facebook or LinkedIn where people only connect with "friends"--social media only surfaces content from people who are likely to share common viewpoints.  Plus, those posts are culled by mysterious algorithms (such as the algorithm controlling Facebook's newsfeed) that further reduce exposure to diverse viewpoints.

Still, I never believed these dystopian predictions, mostly because I believed technological tools like RSS would triumph over them.  (For my more detailed rebuttal to the dystopians, see this article).  RSS makes it easy and quick to keep up with dynamically changing online sources.  The effectively zero transaction cost means that readers can easily monitor a smorgasbord of sources--including a greater diversity of source--than was possible with other technologies.  Plus, RSS feeds bypass third parties' black-box algorithmic filtering that might suppress countervailing views; RSS enables a direct communication from the publisher to the reader.

In my case, the costlessness of subscribing to RSS feeds, plus the simplicity and reliability of Google Reader, has helped me aggregate a vast number of RSS subscriptions (over 220).  With that many subscriptions, I can track developments across a wide variety of industries, topical areas,  databases, and yes, viewpoints.  Rather than circumscribe my worldview, the Internet in general, and RSS in particular, have vastly increased the diversity of my information consumption compared to the heyday of mass-media offline publications.

People have been predicting the death of RSS for years (see, e.g., this 2009 TechCrunch article), but the death of Google Reader moves us closer to RSS's demise than ever before.  Without an obvious RSS reader alternative to Google Reader (and with heightened fears that any replacement RSS reader might exit the market, just like Google and Bloglines), some folks will simply give up on RSS altogether and rely exclusively on social media, email alerts or bookmarks.  Others will use RSS less frequently because the alternative provider isn't as reliable or elegant as Google Reader.  Collectively, with reduced reader demand, fewer publishers may support RSS feeds, creating the possibility of RSS's downward spiral.

The potential death of RSS increases the odds that the dystopian predictions will come true.  Without a viable RSS reader, I would dramatically reduce the sources of news I consult, probably by 90% or more.  It's not feasible to keep up with hundreds of sources via bookmarks (seriously?!).  Email alerts?  I have a tough time managing my in-box as it is.  Social media?  I already use it extensively as a complement to RSS, but it's scattershot and much slower to read.   Plus, some sources I current track don't enable any of these RSS alternatives today.  Without an RSS reader as reliable and efficient as Google Reader, my information flows will be lower-volume, slower, more heavily intermediated by third party algorithms, and--as the dystopians predicted--less diverse.  And if I and others circumscribe our reading sources, publishers will get fewer readers, and the entire Internet ecosystem will shrink.

I don't blame Google.  It's their choice to kill a service, especially one they offered for free.  Still, I'm hoping that one or more RSS reader competitors will emerge a trustworthy addition to my daily routine.  RSS may not be a mainstream tool, but for those of us who use it, its loss would be a major blow.  If Google Reader's demise accelerates that unfortunate outcome, we will have lost something of significant social value.

Jaszczyszyn v. Advantage Health Physician Network, 2012 WL 5416616 (6th Cir. Nov. 7, 2012)

Another entry in the ever-popular series of litigants foiled by social media evidence. Sara Jaszczyszyn (an even more impressive name than Balasubramani...is this her?) took FMLA leave from work due to back pain. This FMLA leave was intermittent, allowing her to be out only on days when she had a flare-up, but the court says "Jaszczyszyn appears to have treated the leave as continuous, open-ended, and effective immediately." For a while, company employees tried to accommodate her ongoing absences, but apparently the mood soured after "Jaszczyszyn attended Pulaski Days, a local Polish heritage festival. Over a period of at least eight hours, she visited three Polish Halls with a group of her friends. One friend shared approximately 127 pictures from that day with Jaszczyszyn, who posted, on her Facebook page, 9 pictures featuring herself." During that same weekend, Jaszczyszyn left another voicemail with her supervisor indicating she was in pain and couldn't come to work on Monday.

Her managers summoned Jaszczyszyn into the office and confronted her with the photos. The court recounts what happened next:

Jaszczyszyn did not agree with their characterization of the pictures, but she did not voice that disagreement at the meeting. She defended attending the festival by arguing that no one had told her it was prohibited. When asked to explain the discrepancy between her claim of complete incapacitation and her activity in the photos, she did not have a response and was often silent, occasionally saying that she was in pain at the festival and just was not showing it.

Apparently not good enough. The employer terminated Jaszczyszyn. Jaszczyszyn responded with a lawsuit claiming FMLA violations. The Sixth Circuit (how in the world did this case get to the Sixth Circuit???) affirmed the legitimacy of the firing.

The subsequent news is mixed for Jaszczyszyn. In a seemingly gratuitous footnote, the court recaps the good--and miraculous?--news that "Jaszczyszyn appears to have made a full recovery very shortly after she was terminated," but also the bad news that she was subsequently fired from her next job for excessive absenteeism. Oh, those millennials!

Other posts in the series:

* Plaintiff's Claims to Be "Bedridden" and "Vegetative" Rebutted by Facebook Evidence--Cajamarca v. Regal Entertainment
* Facebook Jokes About "Naked Twister" Could Undermine Sex Discrimination Claim--Targonski v. Oak Ridge
* Protip: Kegstands and Vertigo Are Inconsistent With Each Other--Johnson v. Ingalls
* Facebook Boasts/Taunts Undermine the Legal Defense for a Fight at a House Party--In re DLW
* Social Media Photos Foil Yet Another Litigant--Clement v. Johnson's Warehouse
* YouTube Video Impeaches Witness' Credibility--Ensign Yacht v. Arrigoni
* Facebook Entries Negate Car Crash Victims' Physical Injury Claims
* Contrary MySpace Evidence Strikes a Litigant Again--HAC, Inc. v. Box
* MySpace Postings Foil Another Litigant--Sedie v. U.S.
* Disturbingly Humorous MySpace Posts Used as Impeaching Evidence in Spousal Abuse Case--Embry v. State
* Latest Example of Social Networking Site Evidence Contradicting In-Court Testimony--People v. Franco

As a long-time blogger, I get pitches from press relations folks all of the time. Many times the pitches are not very well tailored. Instead, it seems like the PR rep gathers up a list of random bloggers' emails addresses and then send the same message to everyone, regardless of topical relevance. Tip to PR folks: spamming an announcement isn't press relations, it's spamming.

I recently got an email from Nelson Hudes, of Hudes Communications International, hawking a new product, the netTALK DUO WiFi, a phone-like device that makes free VOIP calls over WiFi. Normally I immediately delete and spam-block irrelevant PR pitches, but this one caught my eye. I don't currently own a cellphone, but I have signed up for Republic Wireless, a phone that, for a low monthly fee, rides on WiFi signals when available but has a cellular network backup when WiFi signals aren't available. Unfortunately, I'm buried on the waitlist for a phone, and Republic Wireless doesn't seem to be moving very fast. So I would, in fact, be interested in a WiFi-only option, both as a stopgap until Republic Wireless clears its waitlist, and possibly as a complete substitute if I found it sufficiently robust. Because a WiFi-only "telephone" is an interesting solution, I'd be willing to share my experiences on the blog, and naturally I would disclose my receipt of the device in my review.

The entire personalized text of the email Nelson Hudes sent to me before the cut-and-paste press release (emphasis added):

Below read below and let me know if you'd be interested in doing a story on the netTALK DUO WiFi, it is the World’s First Wi-Fi VoIP Device
If you are, all I need is your address and telephone number and I will send you one to try out.
If you've already received this email, please disregard

With great suspicion, I sent in my contact info. In reply, I got the following response from Nelson Hudes:

I will put you into the system and see if the client approves you. In order to do that, I will need all of your social media stats , how often you post and what type of blogger you are

Wait, what? Remember his initial email said: "all I need is your address and telephone number and I will send you one to try out." Somehow it seems like they needed something more than my contact info after all. (I'll also add that the info he requested is publicly available, and probably should have been reviewed before sending an email at all). I pointed out the initial email's language to Nelson Hudes, and he replied:

sorry about that, I should have removed that phrase before the email went out.

Go back and read the initial email. All two sentences of it. Let me know if you think my reply was appropriate:

I can see how you overlooked that. It wasn't a very important part of your initial pitch to me.

Tip to companies seeking coverage from bloggers: sketchy PR pitches to bloggers do not help build your brand.

Tip to PR "professionals": if you want some love from bloggers, treat them with respect. It's always safe to assume the blogger will publicly mock disrespectful emails.

Tip to netTALK: go ahead and remove me from consideration. At this point, it would be hard for me to provide an objective review in light of my annoyance about your bad PR pitch.

Cajamarca v. Regal Entertainment Group, 2012 WL 3782437 (E.D.N.Y. August 31, 2012)

Yet another entry in the running series of litigants getting ensnared by contrary evidence on social media. The underlying case involved a "break room incident." The plaintiff alleged that another employee masturbated in front of her in the breakroom; the other employee claimed "all that happened in the break room was that he gave plaintiff a friendly kiss" (note to employees: "friendly kisses" in the breakroom are almost always potential litigation bait). After the defendants got summary judgment, they turned around and sought sanctions for the plaintiff's evidence in the case. Among other things that emerged:

Plaintiff lied at her deposition, and to her own expert psychiatrist, in describing the emotional effects of the break room incident and omitting her own sexual history. In fact, she enjoyed an extraordinarily active travel and social life during the time she described herself as being “bedridden” and in a “vegetative state” as a result of the incident, including engaging in sexual banter with friends on Facebook.

Note to plaintiffs: Facebook will destroy any false claims of being bedridden and vegetative, except perhaps for a claim that using Facebook generally makes its users a bit vegetative.

The plaintiff's lawyer in this case also gets a bad benchslap:

plaintiff's lawyer should be roundly embarrassed. At the very least, he did an extraordinarily poor job of client intake in not learning highly material information about his client, and setting up an expert psychiatric interview where the psychiatrist, charged with diagnosing a claim of PTSD solely as a result of an alleged five minute instance of exhibitionism, had no idea that plaintiff was a former prostitute.

Prior blog posts in this series:

* Facebook Jokes About "Naked Twister" Could Undermine Sex Discrimination Claim--Targonski v. Oak Ridge
* Protip: Kegstands and Vertigo Are Inconsistent With Each Other--Johnson v. Ingalls
* Facebook Boasts/Taunts Undermine the Legal Defense for a Fight at a House Party--In re DLW
* Social Media Photos Foil Yet Another Litigant--Clement v. Johnson's Warehouse
* YouTube Video Impeaches Witness' Credibility--Ensign Yacht v. Arrigoni
* Facebook Entries Negate Car Crash Victims' Physical Injury Claims
* Contrary MySpace Evidence Strikes a Litigant Again--HAC, Inc. v. Box
* MySpace Postings Foil Another Litigant--Sedie v. U.S.
* Disturbingly Humorous MySpace Posts Used as Impeaching Evidence in Spousal Abuse Case--Embry v. State
* Latest Example of Social Networking Site Evidence Contradicting In-Court Testimony--People v. Franco

Targonski v. City of Oak Ridge, 2012 U.S. Dist. LEXIS 99693 (E.D. Tenn. July 18, 2012). The EEOC complaint.

The latest entry in the ever-popular annals of social media evidence potentially undermining a litigant's judicial posture. In this case, Targonski is suing for sex discrimination at work. According to this article, her co-worker "told [other] co-workers she was a lesbian, had orgies in her house, kept a "sex calendar" and handed out nude photos of herself to other officers."

In light of these allegations, the court recounts some of the evidence before it:

Plaintiff testified at her deposition, "I'm a Christian and I strive really hard to be a moral person. So for someone to start thinking of me as someone who has orgy parties at my house while my son is home, that's severely humiliating to me." Plaintiff further testified that she would never "go out and talk to people about" such things, even in a joking manner. Curiously, however, on February 23, 2010, plaintiff was herself discussing on Facebook her desire for a female friend to join her "naked in the hot tub." The previous day on her Facebook page, plaintiff was discussing "naked Twister." May 22, 2010 postings on plaintiff's Facebook page by her Facebook "friends" talked about female orgies involving plaintiff, Cassie Bridges, and others, to be filmed by plaintiff's husband.

The court dismisses all of her claims except the hostile work environment claim, which goes to the jury. With respect to her Facebook posts, the court says:

plaintiff testified that the Facebook postings were "obviously" jokes. Plaintiff testified that these "jokes" were not embarrassing or humiliating to her because they were "between friends"....the jury will have ample opportunity to consider the Facebook evidence and reach its own conclusions in this matter.

This case is also an entry in the steady stream of cases I'm seeing involving an employee's rough treatment by co-workers. See, e.g., Espinoza v. Orange County.

Prior blog posts in this series:

* Protip: Kegstands and Vertigo Are Inconsistent With Each Other--Johnson v. Ingalls
* Facebook Boasts/Taunts Undermine the Legal Defense for a Fight at a House Party--In re DLW
* Social Media Photos Foil Yet Another Litigant--Clement v. Johnson's Warehouse
* YouTube Video Impeaches Witness' Credibility--Ensign Yacht v. Arrigoni
* Facebook Entries Negate Car Crash Victims' Physical Injury Claims
* Contrary MySpace Evidence Strikes a Litigant Again--HAC, Inc. v. Box
* MySpace Postings Foil Another Litigant--Sedie v. U.S.
* Disturbingly Humorous MySpace Posts Used as Impeaching Evidence in Spousal Abuse Case--Embry v. State
* Latest Example of Social Networking Site Evidence Contradicting In-Court Testimony--People v. Franco

Johnson v. Ingalls, 2012 WL 1537480 (N.Y. App. Div. May 3, 2012)

The latest entry in my popular series of blog posts about plaintiffs burned by inconsistent evidence in their social media accounts. Today's case addresses the admission of about 20 Facebook photos in a vehicular personal injury lawsuit that resulted in a defense verdict from the jury. The court says the photos are admissible:

Plaintiff claimed that, as a result of her injury, she suffered severe anxiety, vertigo, constant migraines and pain for a period of about two years, that her anxiety prevented her from going out or socializing with friends, and that she required antidepressant medication. The [Facebook] photos admitted were taken over a 1 1/2-year period beginning shortly after the accident. They depicted plaintiff attending parties, socializing and vacationing with friends, dancing, drinking beer in an inverted position referred to in testimony as a “keg stand,” and otherwise appearing to be active, socially engaged and happy. They further revealed that plaintiff consumed alcohol during this period, contrary to medical advice and her reports to her physicians.

Prior blog posts in this series:

* Protip: Kegstands and Vertigo Are Inconsistent With Each Other--Johnson v. Ingalls
* Social Media Photos Foil Yet Another Litigant--Clement v. Johnson's Warehouse
* YouTube Video Impeaches Witness' Credibility--Ensign Yacht v. Arrigoni
* Facebook Entries Negate Car Crash Victims' Physical Injury Claims
* Contrary MySpace Evidence Strikes a Litigant Again--HAC, Inc. v. Box
* MySpace Postings Foil Another Litigant--Sedie v. U.S.
* Disturbingly Humorous MySpace Posts Used as Impeaching Evidence in Spousal Abuse Case--Embry v. State
* Latest Example of Social Networking Site Evidence Contradicting In-Court Testimony--People v. Franco

A few years ago, SCU hosted a series of Bay Area Blawger gatherings. I've included some links at the bottom of this post. Our goal was to give legal bloggers a chance to meet each other in person and discuss topics of mutual interest. We had pretty good turnouts at most of the events, and I believe attendees had a good time.

I haven’t organized a Bay Area Blawgers event since 2009. First, my schedule has been busy. Second, and perhaps more importantly, blogging has changed a lot in the last couple of years. Many bloggers have moved some or all of their activity to other social media, like Twitter, which has sucked some of the air out of the blogosphere. A lot of early bloggers have turned over as part of the ordinary life cycle of blogging. And many new legal bloggers are law firm attorneys blogging for corporate interests and who may not even self-identify as BLOGGERS. So I’m not sure who would come if we held another Bay Area Blawgers gathering—or if anyone would come! If you have thoughts about the merits of another gathering, please email me. I’m willing to put something together if there’s enough interest.

Earlier this month, I had an excuse to visit Seattle for the first time in several years. See my Seattle photo album and video from Mt. Si. Among other benefits, it meant that I could finally meet my co-blogger Venkat in person for the first time. It’s odd that I had worked so closely with Venkat over the past 3 years but never met him in person. (I email Venkat more than I email any other person, even my wife). So having a chance to spend time with him was a real plus.

As part of my Seattle visit, Venkat and Josh King of Avvo helped organize a gathering of Seattle Blawgers. The group photo. I believe this group had gotten together in the past. About 20 blawgers showed up at Avvo’s palatial subleased space in downtown Seattle to shoot the breeze and compare notes. Unlike the SCU blawgers events, there wasn’t any structured discussion, but I think mostly people just welcomed the opportunity to chat face-to-face and enjoy someone else’s food and libations. Many thanks to Josh King and Mark Britton of Avvo for sponsoring the event, to Venkat for doing some of the marketing (see the Tweetup registration), and to everyone who showed up for a great time!

Other Recaps of the Seattle Blawgers Gathering

* Venkat (with another photo!)
* William Carleton (and a different photo!)

Past Coverage of Bay Area Blawgers Activity

* Announcements of Bay Area Blawgers 1.0, 2.0, 3.0 and 4.0.
* Recaps of the first, third and fourth gatherings. Beth Grimm has written an interesting meta-recap.
* Photos from the second and third gatherings.
* List of possible issues for a blawgers' discussion.
* Census of Bay Area Blawgers.

Clement v. Johnson's Warehouse Showroom, Inc., 2012 Ark. App. 17 (Jan. 4, 2012)

In my long-running series of litigants saying one thing in court and another when talking to their friends online, consider this from a worker's comp case after a refrigerator fell on Clement:

The first issue Clement raises in his brief is whether pictures of him that appeared on Facebook and MySpace should have been admitted into evidence. He complains that the pictures “are a disgrace to the dignity of the workers' compensation proceedings and the legal system” and have nothing to do with his medical treatment....

We find no abuse of discretion in the allowance of the photographs. Clement contended that he was in excruciating pain, but these pictures show him drinking and partying. Certainly these pictures could have a bearing on Clement's credibility, albeit a negative effect that Clement might not wish to be demonstrated to the ALJ or the Commission. We hold that there was not an abuse of discretion in allowing the photographs.

Now that Facebook can do facial recognition, it should next develop a tool to automatically detect photos depicting alcoholic drinks and give users a way to automatically opt-out of those photos!

Prior blog posts in this series:

* YouTube Video Impeaches Witness' Credibility--Ensign Yacht v. Arrigoni
* Facebook Entries Negate Car Crash Victims' Physical Injury Claims
* Contrary MySpace Evidence Strikes a Litigant Again--HAC, Inc. v. Box
* MySpace Postings Foil Another Litigant--Sedie v. U.S.
* Disturbingly Humorous MySpace Posts Used as Impeaching Evidence in Spousal Abuse Case--Embry v. State
* Latest Example of Social Networking Site Evidence Contradicting In-Court Testimony--People v. Franco

Johnson v. Arlotta, 2011 WL 6141651 (Minn. App. Ct. Dec. 12, 2011)

Johnson and Arlotta dated. After the breakup, Johnson got a "harassment restraining order" (HRO) against Arlotta that:

prohibited him from (1) committing any acts "intended to adversely affect [Johnson's] safety, security, or privacy," (2) having "any contact" with Johnson "in person, by work or home e-mail, by telephone, or by other means or persons," and (3) visiting Johnson's Morgan Stanley "worksite."

Almost immediately thereafter, Arlotta created a blog titled "Help Ann Johnson," written in the third person. The blog "documented Arlotta's ongoing relationship issues with Johnson [and] discussed personal information about Johnson, including her involvement in sexually and physically abusive relationships, and questioned the state of her
mental health." Under pseudonyms, Arlotta then promoted the blog to Johnson's family, friends, contacts and employer as well as some unaffiliated parties, like the local media. Needless to say, many of these folks contacted Johnson regarding Arlotta's communications. The lower court found that Arlotta violated the HRO and ordered a new HRO that extended for 51 years (the appeals court adjusted this down to 50 years, the statutory maximum). The lower court also ordered the blog deleted (which has happened).

The appellate court agreed that Arlotta violated the prior HRO. Arlotta argued that his communications weren't directed to Johnson, but the court rejected that argument: "Arlotta intended his communications to reach Johnson and that they did, causing her humiliation and embarrassment." Johnson also argued that his information was truthful and lawfully obtained, but the court says harassment can occur even if those attributes are true.

The court rejected a constitutional challenge to the HRO, basically treating harassing speech as a class of content categorically excluded from First Amendment protection. I'm not sure about this approach. It seems like this was more appropriately treated as a situation where speech is also conduct, and the HRO regulated his conduct. I believe treating harassing speech as outside the First Amendment invites more mischief than playing with the speech/conduct divide.

The court also concluded that the HRO wasn't impermissibly vague. Arlotta argued that the HRO never expressly said he couldn't contact people in Johnson's network. The court says that's not a problem because the HRO

prohibits communications that are "intentionally calculated" to harass Johnson or have the effect of harassment, directly or indirectly, as exemplified by Arlotta's "Help Ann Johnson" blog and his contact with people close to Johnson.

Finally, Arlotta argued that Johnson could send takedown notices or sue for defamation or public disclosure of private facts, and these alternative ways of proceeding mooted the need for an HRO. The court rejected that based on the statute.

From my perspective, each of Arlotta's arguments had a point, in a tendentious sort of way. Yet, the arguments fell completely flat in light of the fact that Arlotta was, at best, trying to get around an existing HRO. We all know what Arlotta was trying to do, and his arguments felt very disingenuous.

This ruling leaves open a key question. Even under the prior HRO, could Arlotta have blogged about his dealings with Johnson if he did not try to bring it to the attention of others? After all, if his statements are true and not based on restricted information, Arlotta should be able to tell his story. Then again, a blog will show up in the search results, so a blog could be a passive-aggressive way of getting back to Johnson, and just as (if not more) effective as affirmatively reaching out to call attention to the blog. So try a different hypothetical: could Arlotta write and publish a book telling his story? I think the answer should be yes, so long as he lacked malicious intent (recall the initial HRO restricted him from intending to hurt Johnson's privacy).

This makes the court's remedy of ordering the blog deleted somewhat uncomfortable. Arlotta is allowed to speak his mind, and the court may have been able to excise the "harassing" component of the blog without wiping the entire blog off the Internet. Given the constitutional dimensions of this case, it's troubling that the court didn't evaluate that option more carefully.

Kash Hill's post on this case.

Ensign Yachts, Inc. v. Arrigoni, 2011 WL 5325174 (D. Conn. Nov. 2, 2011)

Another entry in the annals of social media evidence undercutting a litigant's testimony. This time, a YouTube video becomes the "gotcha":

Ross Sr.'s credibility was severely impeached at trial, most notably through the introduction of a YouTube video of Ross Sr. and Fabrice Fontanez on a yacht in the South of France directly contradicting Ross Sr.'s sworn testimony that he had only seen Fontanez on one occasion, at the Norwalk Cove Marina in Connecticut, since the dealings regarding the sale of the yacht and that he had no business relationship with Fontanez. Contrary to this testimony, the YouTube video, a promotional video for NuMarine, displayed Ross Sr. with one of his yacht dealers on a yacht in St. Tropez with Fabrice Fontanez in 2010, establishing that he had not only seen Fontanez on at least one additional occasion, but also that he had a business relationship with Fontanez. Further, when presented with this video on cross-examination, Ross Sr. was at best evasive in answering questions concerning the identities of the people shown in the video.

Paff v. Chatham, 2011 WL 5105477 (N.J. Super. A.D. Oct. 28, 2011)

A blogger asked the city how long it suspended a rogue police officer. The city refused the blogger's sunshine request. The court did too, saying as part of its multi-factor analysis:

The threshold consideration under the common law right to access is whether the plaintiff has standing. Newspapers are afforded standing as entities that collectively represent the public interest. See Home News v. State Dep't of Health, 144 N.J. 446, 454 (1996) (“The press's role as ‘the eyes and ears of the public’ generally is sufficient to confer standing on a newspaper that seeks access to public documents.”). Both parties agree that Paff's sporadic blogging activity does not qualify him as a journalist. See Too Much Media, LLC v. Hale, 206 N.J. 209, 237 (2011). Thus, his interest in the subject matter at issue is not that of a news source. [some cites omitted]

It's hard to stand up for the blogger if he gives up the issue himself. But even a sporadic blogger can act as "the eyes and ears of the public," especially a niche watchdog blog like "NJ Public Employee Discipline Appeals." Then again, given the troubling Hale precedent, maybe the New Jersey courts have just decided to privilege newspapers over bloggers. It would be great if courts like this explicitly acknowledged that they're making a silly and incoherent choice.

On the ever-popular subject of social media posts that belie the statements litigants make in court, consider Boudwin v. General Ins. Co. of America, 2011 WL 4433578 (La. App. Ct. Sept. 14, 2011). The litigation is the result of a serious car accident, and two of the injured victims (Jessi and Lee) believed the insurance company shorted them. In a jury trial, the jury didn't award anything to the litigants for loss of enjoyment of life or physical disability. The court recounts the situation:

At trial, both Jessi and Lee were specifically asked about how their lives had changed following the accident, and both of them gave very similar responses. Jessi, who at the time of the accident had just graduated from high school, testified that before the accident, she studied all the time. Following the accident, she stated she still studied, but it was painful. She said the only thing she could not do following the accident was sit ups and study for long periods of time. At the time of trial, Jessi was a senior at Nicholls State University maintaining a 4.0 grade point average.

Jessi was also questioned regarding some of her routine physical activities, especially in regard to entries she made on her Facebook page. She acknowledged that she runs, or rather jogs, regularly to stay in shape, and even attempted to do an exercise program called P9OX with a friend, which she described as being “really tough.”...

Lee likewise testified that his lifestyle before and after the accident were pretty much the same. He still participated in all the same activities and maintained his military commitment, including successfully completing physical aptitude tests required by the Army twice a year. Still, Lee testified that before the accident, he always stayed active and played a lot of sports, and following the accident, while he continued to stay active, it was “not as much, because I find that after activity that it's a lot more pain than usual.”

On cross examination, however, Lee acknowledged several entries from his Facebook page where he reported frequently “working out” and also playing sports such as basketball, tennis, “ultimate Frisbee,” and softball, sometimes engaging in multiple sessions of sporting activities in a single day. He further acknowledged that he wrote on his Facebook page that he had participated in a softball tournament in the month before trial, which happened to be two days before his final visit with. Dr. Cenac. When asked if he had informed Dr. Cenac of any of injuries he had sustained while playing sports, he stated that he told Dr. Cenac that he stayed “active,” but that he was “not inclined” to tell Dr. Cenac that he was playing on softball teams.

Considering the testimony and medical evidence presented, we cannot say that the jury was manifestly erroneous in refusing to award any damages for physical disability or loss of enjoyment of life. The record clearly shows that neither Jessi nor Lee have experienced any significant limitations or impairments as a result of the injuries they sustained in the May 31, 2008 accident.

More examples in this line of cases:

* Contrary MySpace Evidence Strikes a Litigant Again--HAC, Inc. v. Box
* MySpace Postings Foil Another Litigant--Sedie v. U.S.
* Disturbingly Humorous MySpace Posts Used as Impeaching Evidence in Spousal Abuse Case--Embry v. State
* Latest Example of Social Networking Site Evidence Contradicting In-Court Testimony--People v. Franco

Gillum (Davies) v. Gillum, 2011 WL 2084148 (Ohio App. Ct. May 27, 2011)

The parents are divorced, and mom has custody of the kids. The dad is now trying to obtain custody. There is some mildly amusing discussion about which parent is the bigger pothead, but the focus of this post is the family's use of MySpace. The dad makes two allegations: (1) the kids are posting inappropriate things, thus evidencing mom's lack of adequate supervision, and (2) mom is saying not-nice things about dad on her MySpace page, which the kids are likely to see, and in private MySpace messages. With respect to #1, the court summarizes:

The images to which Gillum objected included pictures of the thirteen-year-old daughter kissing one of her girlfriends on the cheek and pictures of the fifteen-year-old wearing a bikini and cowboy hat at the beach. The pictures of the younger daughter and her friend included the daughter's captions such as "sexii" and "kisses;" the pictures of the older daughter included her captions such as "one sexii cowgirl" and "im the hottest cowgirl you've ever seen." Gillum contends that Davies' failure to object to the girls' posting of such pictures or her ignorance of this fact shows that she was not adequately supervising the children's Internet usage and that she was "in denial that child predators exist."

The dad's argument failed to sway the trial court, and the appellate court didn't see any reason to overrule the trial court:

Although the wisdom of allowing Internet posts of a bikini-clad girl or of young girls kissing is certainly problematic, Gillum's characterization of the photographs as "sexually exploitive" is also debatable. The magistrate and trial court, as is unfortunately often the situation, had to weigh this and other conflicting evidence. Viewing the evidence as a whole, the trial court did not abuse its discretion in finding (implicitly) that the danger posed by such postings and Davies' knowledge of or failure to prevent such postings did not demonstrate that a change of custody was in the children's best interest.

My eldest is only 8 years old and has shown zero interest in social networking sites so far. I'm sure that will change soon enough. For now, I haven't had the personal experience of trying to manage my teenagers' use of social networking sites. However, I don't look forward to those days, because everyone who has had first-hand experience has told me it's effectively impossible. (As a separate matter, I had thought 13 year olds weren't allowed on MySpace, although we know social networking sites' efforts to screen out young teens have failed miserably).

Therefore, it would be odd, indeed, if a parent's inability to control a child's social networking site activity became a grounds for switching custody, because it's probable that neither parent can do better than the other at controlling kids' online behavior. While I can't say I would be excited if my kids did the things described in this court opinion, on the scale of good-to-bad teen usage of social networking sites, these kids look like they are doing OK, all things considered.

Meanwhile, if anyone has developed the elixir for causing teens to make adult choices when given the very adult publishing power of social networking sites, I'll pay a lot for a bottle. Or two.

State v. Komisarjevsky, 2011 WL 1032111 (Conn. Super. Ct. Feb. 22, 2011)

In a sexual assault and homicide case, the defendant asked the judge to ban the media from posting tweets from the courtroom. Connecticut court rules explicitly prohibit "broadcasting" of the trial. The defendant argued that tweeting the trial was "broadcasting"--an argument that has come up occasionally before. No media representatives fought this motion, but the court noted that they live-tweeted the hearing on the motion.

The court engages a typical statutory analysis of the word "broadcasting." It rejects Webster's Dictionary as a reliable source because it was written in 1971, and other statutory definitions of the term are similarly antiquated. Therefore, the court turns to first principles. It says the rule was designed "to spare a sexual assault victim from the indignity of having his or her ordeal vividly conveyed to the world by the use of actual voices and photographic or televised images projected from the courtroom." Because the rule protects visual images, it does not restrict textual accounts of the proceedings.

As a result, the rule doesn't ban live-tweeting from the courtroom. The court declined to block Twitter on an ad hoc basis either, although it reserved the right to bar disruptive behavior.

This is a sensible result. Indeed, it's so obvious to me that tweeting isn't "broadcasting" that I could have imagined an even more concise opinion reaching the same result. Still, however the judge got there, at least he got there. Kudos Judge Jon C. Blue.

My previous post on this topic: Courtroom Coverage in the Internet Era--a Conference Recap, which discusses US v. Shelnutt, mistakenly reaching the opposite result.

More on the ruling from CYB3RCRIM3, which points to a news story describing the underlying alleged crimes. See also this article on the co-defendant's fight against Twitter.

Earlier this year, I gave an informal talk to our faculty and staff about how I use blogging and my personal website. My talk slides.

As you can see, I made one basic point: like-minded people may be interested in our work as faculty members, but we often give them no way to keep track of us. Blogging, Twitter and my personal website all help plug that gap.

The remainder of my slides show, step-by-step, how I post content, starting at my website and ending at Twitter. I wanted my colleagues to see that it's not really that complicated, and it doesn't take a lot of extra time to share everything I do. I also showed some of the ways I get feedback from the content I share, including stats and @replies at Twitter.

I previously blogged about my problems with Scribd, the document hosting service, when they put up a paywall on user-uploaded documents. Scribd tried to soft-pedal the change by giving users an opt-out, but they never fully acknowledged how they changed their basic business proposition or how their move basically pitted Scribd against its users.

In my blog post, I solicited alternatives to Scribd. The reality is that only one solution--hosting at my own domain--gives me full control over my own fate. Any other solution puts me at risk that something will go wrong with the vendor: they will go out of business, make a goofy business choice like Scribd, or otherwise disrupt my expectations. Self-hosting has its own downsides, though. I have to bear the hosting costs (which in aggregate could start to add up), and publishing via Scribd is substantially quicker than self-hosting (an important consideration when I am publishing lots of files).

Recently, I've had two other moments where cloud service providers have disrupted my expectations as well. I'll blog about my Gmail experiences in the near future. Today, I'm blogging about a conflict between two of my vendors, Facebook and Bit.ly.

I have been using a link shortener for a couple years now (ever since I ramped up my Twitter activity). Link shorteners are a necessary evil now. It's really not possible to use Twitter without some link shortener. The reality is that if I want complete control over my fate, I should run my own link shortener at a domain I control. Without doing that, I am at the mercy of the link shortener vendor. This point was hammered home when my initial preferred link shortening vendor, bit.ly, pulled the plug on links at the request of the Libyan government. I don't think I link to the kind of URLs that would interest the Libyan government, but its capricious exercise of influence over a US company was enough to send me looking for alternatives.

It was easy enough to switch to j.mp, another shortener run by bit.ly but with a TLD under the United States aegis. (After the Wikileaks debacle, our government's censorial impulses remain highly questionable, but I'll take the US government's abuses over the Libyan government's). Because it was part of the bit.ly family, the web interface was identical and my previous bit.ly links showed up in my j.mp account.

Late at night last Wednesday (i.e., right before the Christmas break), Facebook blocked all j.mp links and all status updates containing j.mp links, showing its all-too-familiar disclosure:

"This message contains blocked content that has previously been flagged as abusive or spammy. Let us know if you think this is an error."

I hate the passive voice of this disclosure, which makes the disclosure false more often than not. I let Facebook know via the specified feedback mechanism and, as usual, heard nothing back. I did, however, get responses from my other channels.

Facebook's position is that over 70% of j.mp links were spam or for malware. Taking Facebook at face value, apparently I was one of the relatively rare folks who used j.mp for legitimate activity. For those few of us, Facebook's remedy was troubling: Facebook took down all status reports containing j.mp links, irrespective of the links' legitimacy. Because I automatically repost my Twitter posts as my Facebook status updates--most of which are links to other stuff using a link shortener--Facebook's categorical takedown of j.mp links basically gutted the last 3 months of my status updates. Not only that, but many of my posts have comments from my Facebook friends, and all those comments disappeared.

The story reached a reasonably happy conclusion (for now). Within 24 hours, Facebook and bit.ly apparently reached an accommodation, and my previously deleted status updates were restored.

Even so, I have unanswered questions about this incident. Most importantly, how hard did Facebook work to resolve problems with bit.ly before Facebook wiped away user updates and the attached comments? From my perspective, because j.mp was a major link shortener, Facebook should tread really cautiously and give bit.ly lots of notice and opportunity to fix the problem before pulling the plug on j.mp. Then again, Facebook is uncomfortably free with its anti-spam block, as I noted in my post about Facebook's block of any post containing the word "power.com" (even when the phrase is not an active hyperlink), despite a pending (at the time) Power.com antitrust lawsuit against Facebook. Don’t underestimate Facebook's willingness to impose ill-advised "anti-spam" blocks.

Without knowing what Facebook did to resolve the problem before blocking j.mp, I'm not sure how to allocate blame for this incident. If bit.ly got clear advance notice of Facebook's impending block and didn't find a way to avoid it, then shame on bit.ly for not combating spam and malware better. If Facebook didn't give adequate warning to bit.ly before ripping down thousands (millions?) of legitimate status updates with legitimate j.mp links, then shame on Facebook for so cavalierly interrupting legitimate conversations between its users.

Either way, at least one of my cloud service providers isn't trustworthy; most likely, both are untrustworthy. I'm not sure what to do about finding an alternative link shortening service to j.mp/bit.ly. I'm still thinking about that. Regarding Facebook, this incident reinforces why I rely mostly on my Twitter account. Even though Twitter's uptime is shaky, they have never pulled any stunt like Facebook's mass content takedown. I urge anyone who reads my posts in Facebook to follow me at Twitter instead. I post the same content in both places, but Twitter has a higher likelihood of actually showing up.

HAC, Inc. v. Box, 2010 OK 89 (Okla. Dec. 14, 2010)

I've repeatedly blogged on social networking sites providing evidence that undercuts a litigant's position (my last post on the topic). Today's example involves a minor working in a grocery store. A co-worker throws a roll of toilet paper at the minor. The minor responds to the provocation by going to the co-worker and yelling at him. They scuffle, tangle their feet, and fall down. The fall permanently injures the minor's arms.

The minor seeks workers' comp. The store responds that he was engaged in "horseplay" and therefore isn't entitled to compensation. The Oklahoma Supreme Court provides a detailed definition of compensable vs. non-compensable "horseplay" for workers' comp purposes, and voluntary horseplay isn't compensable. The court then further concludes that the minor had, in fact, engaged in voluntary horseplay. In support of this conclusion, the court cites (among other things) this part of the minor's deposition:

"At page 26, Box testified:

Q. And isn't it true that on your MySpace page and on their MySpace page, however that works, you told some of your friends that this accident happened when you were roughhousing and wrestling. Correct?

A. Yes."

Workers' comp claim denied.

I do love the technological savvy of the grocery store's lawyer in discussing MySpace: "however that works." Sounds like counsel was well-prepped for the deposition. Then again, I confess that I don't really understand MySpace either...!

Over the last year, I've become a heavy user of Scribd. I have posted over 100 documents to Scribd that have generated over 100,000 reads. Posting to Scribd is fast and easy--much easier than using my extremely cumbersome web hosting solution at the university--and the documents are automatically indexed in Google for increased visibility. I also like getting the stats, which are easier to see than through my university solution. Finally, I used Scribd for a surprisingly effective self-publication experiment with my Internet Law course reader; I'll write more about that experiment soon.

Unfortunately, Scribd recently made two really bad choices that totally destroyed my trust. First, they changed their default settings so that the site automatically "readcasts" (i.e., announces on my Scribd home page) any documents that I visited. Once I realized they were doing this, I self-discovered that I could opt-out on the settings page (buried under "sharing"), but I don't feel I got adequate notice of the change. Haven't they learned anything from Facebook's Beacon fiasco or Google's Buzz fiasco? Since apparently the message isn't sinking in, let me spell out what should have been obvious: PEOPLE DON'T WANT TO AUTOMATICALLY PUBLICLY ANNOUNCE THE DOCUMENTS THEY ARE READING.

With the deep goodwill I've developed towards Scribd over the past year, I might be able to excuse that mistake (barely) as overzealous cluelessness. However, the other mistake simply isn't excusable. With inadequate notice to account-holders, Scribd set up a new program where old files on Scribd (it's unclear how old; their FAQ simply says the conversion happens after "an initial period of time on Scribd") are automatically put behind a paywall where readers have to pay Scribd to access them. [Update: Evil Wylie reports that the files are archived after 2 months.]

On the settings page, I am given the opportunity to categorically opt out of having my documents go behind their paywall, but the setting is hardly clear. The configuration choice reads "Do not include my documents in the Scribd Archive program." I presume this opaque wording was implicitly designed to communicate that being in the Scribd Archive is a good thing and I should want to do, but staying in the program sure isn't in the best interests of me or my readers. [Contrast the communicative effect of a toggle option saying "I don't want my old documents behind Scribd's paywall."] I don't recall any other notice that Scribd had put my documents behind a paywall; I learned about it from a reader who got prompted to pay to access an older post.

Scribd's paywall stunt instantly put Scribd on my shitlist because it vitiates the reason I chose to use Scribd in the first place. I don't know that they ever promised me perpetual free access to the documents I post, but their value proposition always has been open access to the documents--freely shared with everyone and indexed in the search engines. The paywall destroys that value proposition. They've taken the documents that I wanted to freely share with the public (many of them public documents like court rulings and filings) and made them inaccessible. If my readers can't freely get the documents I wanted to share with them, then what's the point of using Scribd in the first place???

I also feel like Scribd used me. With their implicit promise of open access, they got me to share a lot of high-interest documents and generate lots of link love, then they flipped the default (from free to paywall) as part of a cash grab. I could check out of Scribd, but then I would break a lot of links and it would take a lot of time. So now I feel trapped. It's a terrible feeling.

[Note: I always knew that Scribd could shut down and break the links, but I was willing to take the gamble that Scribd would succeed or someone would want to buy them up if they didn't. I didn't expect they would pull a bush league move like this.]

[Also: it would be nice if Scribd provided a bulk exporter tool that would allow me to easily port all the posts to another provider. That would give me another way to get the documents out from behind their paywall, although it wouldn't really help moving the archive to another provider because I'd still have to fix the existing links to those files.]

The most frustrating aspect is that I can't imagine Scribd's paywall will be a path to riches for them. People hate paywalls, and in many cases the materials can be found freely elsewhere on the web through a search. Plus, when Scribd's power users opt out of the paywall (as I would expect them to do once they realize Scribd screwed them), many of the most popular documents will end up outside the program anyway. As a result, this seems like an ill-conceived and possibly desperate move--they are trying to grab a few shekels now at the expense of destroying the trust of their power users.

If you are a Scribd user, I recommend two things:

1) Immediately change your settings to opt out of their paywall program. This FAQ tells you how.

2) I'm taking my business elsewhere, and you might consider joining me. I don't have a new destination yet, but I'll post it here when I decide. Meanwhile, I welcome your recommendations of a more trustworthy file hosting service than Scribd. Others have referred me to Rapidshare and Docstoc. [Update: also Slideshare and Docs.com.] What do you think of those services as alternatives to Scribd? Are there better ones? If we decide there isn't a better choice than Scribd, then I will go back to using my cumbersome university hosting option.
____

As a courtesy, I sent a prepublication draft of the above post to Scribd's press team and asked for a response. They were kind enough to reply to me pretty quickly with the following:

Thanks again for your note and the opportunity to respond. You’re right that our communication around the Archive should have been more clear. We've been working on ways to better message the changes and tweak Archives to be more user-friendly, and hopefully, you'll notice these changes soon.

Our goal has always been to develop easy-to-use products that provide open access to information and that our community finds useful and fun; it's why we don't restrict reading access online or on mobile devices, for example, and why we've given content uploaders the option to remove all their material from the Archive permanently.

As a start-up, we're constantly trying to strike the right balance: building products that people love but that also help us make money (to cover server cost and everything else associated with running a company). We're learning, and there's a lot we can do better.

That's why we'd like to invite you to participate in our newly created User Advisory Board, which we're putting together to ensure that user feedback is incorporated in our product development. I'd also like to extend an open invitation for you to come in and meet the team.

This isn't much of a response, although I'll be interested to see what changes they roll out. The only thing that makes sense is for them to kibosh the Archive program altogether. Even if they do, I still don't think I can trust a company that thought the paywall was a good idea, and their concerns about server costs make me wonder if they are financially wobbly. As a result, I'm still on my quest for more trustworthy alternatives, and I welcome your input.

UPDATE: In response to my post, some folks invoked the misguided meme: "If you are not paying for it, you're not the customer; you're the product being sold." Mike Masnick tackles--and busts--the meme.

UPDATE 2 (Sept. 28): Scribd ultimately apologized for its launching of Scribd Archive, but not after some second thoughts. Techcrunch covered their vacillation. Scribd further made Readcasts opt-in instead of opt-out, but no apologies for that poor choice. I'm still researching alternatives to Scribd.

The New York Times has a nice feature on Joshua Fisher, a Minnesota Law 3L who runs "dodgerdivorce.com," which tracks every detail in the messy divorce between the owners of the Los Angeles Dodgers. Through his blog coverage, Fisher has become a go-to commentator on the divorce and its implications for the team.

With respect to his job search, the article quotes Fisher as saying "Employers like people with a story, and I have a better story now than I did a year ago and I see the difference." *This* is one way you can jumpstart your job search. We can't all get lucky enough to spot a big issue as it's exploding. However, every law student has the capacity to develop specialized expertise on a commercially valuable topic, demonstrate that expertise to future employers through written work product, and become an authoritative and respected source on that topic. As Fisher indicates, doing so creates a completely different dynamic with employers than simply presenting oneself as a smart candidate with a lot of promise.

I get emails asking me for links, both free and for-pay, just about every day from folks looking for a little PageRank love. Here's an example of one I got today:
________

Hello,

I ran across your page on

http://blog.ericgoldman.org/

and would like to purchase a link in one of your individual posts. This is for a site related to [ABC].

My budget is $100 for a permanent link and can pay via PayPal. Here are some of the details of the link:

(1) We'd add one or two sentences into the post with a link to the [ABC] site. Since there are many [ABCs] offered, making the sentences seem relevant to your post is not difficult.

(2) There would also be one more link, to a .gov, .edu or scholarly reference site that relate to your original post topic. This way both links look normal and not out of place. If you had a post about [XYZ], then we'd find a .gov or .edu link giving [XYZ] advice.

Let me know if you are interested and I'll send over the rest of the details and give you the site we'd link to.
________

I said no to this, as I do to all such requests. However, it does boggle the mind that a single link might be worth $100 from a relatively obscure/low traffic site like mine. To contextualize this, it's 2.5-3x as much as I make from AdSense in a month from across my entire website and blogs (i.e., many thousands of pages). Of course, that could say something about how badly AdSense performs for me...

QVC, Inc. v. Your Vitamins, Inc., 2010 WL 2985801 (D. Del. July 27, 2010)

This case involves two competitive products. Lessman, the principal behind one of the products, posted 4 blog posts deconstructing his competitor's products. The competitor sued Lessman and others for false advertising and related claims. The court discusses introducing comments to the 4 blog posts as evidence:
_____

To the extent plaintiffs address implied falsity, they offer responsive posts to Lessman's blogs as evidence of actual confusion.FN14 (D.I. 34 at 5 (“no one has written to express relief that any cancer risk is abated by the small quantities of unabsorbabilityl”)) There are sixty-seven (67) comments to the 99% additives article FN15 and fifty (50) comments to the Revesterol article.FN16 Though many of these are negative to QVC (as compared to simply supportive of Lessman), only a few correlate a decision not to buy Nature's Code Hair with Lessman's particular statements as discussed above.

FN14. The parties have each submitted statements regarding the traffic on Lessman's blog. At oral argument, defendants confirmed that there is no way to determine the number of lawyer or staff visits to Lessman's site as compared to consumer visits. (D.I. 41 at 2) Notwithstanding, the number of “hits” on a given page are not indicative of actual confusion imparted by the substance of Lessman's messages. Insofar as the court does not reach the issue of harms to the respective parties, the court need not evaluate the evidence further. Plaintiffs' motion to strike defendants' submissions regarding website traffic is, therefore, denied as moot.

FN15. As of July 20, 2010. The 99% additives article was posted by Lessman in January 2010. All but two comments were posted in January 2010. One substantive comment (negative to Lessman) was posted in April 2010.

FN16. Certain individuals engaged in online conversations via the blogs and posted several comments; therefore, there were less than 67 and 50 total responders to each article, respectively.

Only three posts to the 99% article appear to address HA and/or cancer. One asks Lessman whether HA poses a risk in creams or lotions.FN17 Another generally reflects that QVC is “criminal” for posing risks to “people's health.” One reader stated that “I did read that HA was linked in some cases [to] cancers,” but stated that the “primary reason” for discontinuing the use of Nature's Code Hair was how it made her feel (edgy and anxious). Similarly, four reiterate the 99% number or the high percentage of additives contained in Nature's Code Hair. Only one appears to address silica, and it came in the context of a question to Lessman regarding the silica in Healthy Hair. None of the comments to the Resveratrol article relate a decision not to purchase Resveratrex® with the source of resveratrol or sugar content. FN18 The court finds that plaintiffs have not demonstrated a “likelihood of success” with respect to implied falsity on this limited record and, therefore, need not evaluate the remaining preliminary injunction factors. FN19

FN17. Lessman responded to this post that he can see no risk by HA in topical products. A later blogger thanked Lessman for this additional HA information.

FN18. Plaintiffs stated at oral argument that the blogs and videos at issue are linked-to on other media, such as Facebook®. It is unclear on this record the extent of such dissemination, and the court does not have before it any consumer comments from other websites.

FN19. The court need not definitively determine, therefore, whether blog posts should be deemed relevant and credible evidence (generally and, in this context, as evidence of consumer confusion)-an issue of first impression for this court. Blog posts such as those in this case may be more reliable than broad-based surveys, insofar as they represent direct feedback from consumers specifically interested in the product(s) at issue, although concerns regarding such posts' authenticity are not ill-founded. Courts have reached differing conclusions on the issue. Compare Blue Bell Creameries, LP. v. Denali Co., LLC, Civ. No. 99-594, 2008 WL 2965655 at *5 & n.4 (S.D.Tex. July 31, 2008) (declining to admit blog entries as evidence of actual consumer confusion in a trademark infringement case stating that they “lack[ed] sufficient indicia of reliability” and “[n]othing is known about the persons who made the entries, about whether they are related in any way to either party or whether they are describing true events and impressions”); with Volkswagen AG v. Verdier Microbus and Camper, Inc., Civ. No. 09-231, 2009 WL 928130 at *4 (N.D.Cal. Apr. 3, 2009) (allowing internet postings and blogs “suggest[ing] that consumers believe the Verdier vehicle is a [Volkswagen] product” as evidence weighing in favor of actual consumer confusion). See also, gen., Victaulic Co. v. Tieman, 499 F.3d 227, 236 (3d Cir.2007) (web pages must be authenticated before they can be admitted pursuant to Federal Rule of Evidence 902).

Just to reiterate the language in FN 19, the court says "Blog posts such as those in this case may be more reliable than broad-based surveys, insofar as they represent direct feedback from consumers specifically interested in the product(s) at issue, although concerns regarding such posts' authenticity are not ill-founded." This does present a new source of evidence for litigants compared to the information available pre-Internet, when it was hard to find consumers publishing their thoughts about various brands.

More on this topic:

* Online Word of Mouth and its Implications for Trademark Law
* Blog Posts Not Reliable Evidence of Consumer Confusion--Blue Bell v. Denali

Sedie v. U.S., 2010 WL 1644252 (N.D. Cal. April 21, 2010)

I've previously blogged about online postings exposing litigant duplicity, i.e., arguing one thing in court but saying something contrary online. (1, 2) This case is typical of the trend I'm seeing. The plaintiff was on the losing side of a 2006 bicycle-meets-postal truck collision. Seeking recompense in court, the judge found the plaintiff was not entirely credible due to juxtapositions like this (citations omitted):

"Plaintiff testified that he spends much of his time lying down, and there are times that he does not leave his room because he is depressed about his overall situation. However, the Court finds this testimony is only partially accurate, and is exaggerated given the other evidence of his actual activities and his pattern of exaggeration. For example, Plaintiff's online writings show that his life was not constantly “hell on earth” as he claimed. Plaintiff maintained his pages on MySpace and Facebook since the accident , and as of January 12, 2010, his MySpace page listed various activities and hobbies, and friends of Plaintiff. Plaintiff wrote entries on his MySpace page, including one on June 3, 2007, in which he described painting as a frustrating activity when his arm hairs would get caught in paint. Yet painting was on the list of activities that Plaintiff claims were adversely affected by the accident. Plaintiff also testified that he had not done any painting since the accident, but the MySpace entry was written in the present tense at a time just prior to his microdiscectomy. Plaintiff testified that the MySpace entry was a joke, but the Court did not find the testimony credible."

Funny joke. Why does it always seem to be MySpace in these duplicity cases...?

Embry v. State, 2010 WL 768755 (Ind. App. Ct. March 8, 2010)

I've blogged before about the use of postings to MySpace or other social networking sites as a new source of impeaching evidence. In this case, an ex-husband was accused of beating his ex-wife. He unsuccessfully argued self-defense. The court quotes the following testimony about the wife's attitudes towards her husband:
____

"On cross-examination, the defense questioned her about a number of derogatory statements she had posted about Embry on her MySpace blog prior to the incident in question:

BY [DEFENSE]: ... Prior to Au-April 22nd, 2008 had you ever expressed or communicated in any way that you wanted your ex to die a slow painful death?

A I believe you're referring to my “My Space” ...

Q I'm not-I-no, I'm not referring to anything. I'm just asking you a simple question: if you'd ever expressed or communicated in any way that you wanted your ex-husband, Mr. Embry, to die a slow painful death?

A I see it right there on your desk.

Q Okay.

A It's my “My Space” blog.

Q Okay, did you say it?

A I typed it.

Q Okay. But the answer is, did you say it? I mean is that your communication.

A I typed it.

Q Okay. And did you ever express um, or communicate in any way that you wanted to be present and dance the cha-cha around his slow painful death?

A It's all there in the blog.

Q Okay. The answer's a simple yes or no. You said it; you've communicated it some way, did you?

A If you want to put that blog there, I ...

Q I'm just asking you a simple question.

BY COURT: Ma‘am, will ya just answer the question yes or no?

A Yes, I did.

Q Did you ever refer to Mr. Embry or communicate in any way that he was a worthless bag of monkey shit?

A Yes.

Q Did you ever refer to him as dog piss?

A Yes.

Q Did you ever refer to him as a worm puke stale crusty moldy inhuman horrible human oxygen sucking moron?

A Yes.

Q Did you ever communicate the desire, that because he's older and more stupid than you, he will die way before you do?

A I believe I said please assure me that it was possible that he would pass before me."
___

The state's attorney redirects with this understated summary:

"BY [STATE]: Ms. Embry, is it fair-fair to say that you're not very fond of your former husband?

A No, I am not fond of him at all."

I continue to get emailed complaints about Phone to Phone Inc. A recent email (as usual, posted with permission):
_________

[begin third party email]

Many thanks for your exposure of Phone2Phone. I manage a public library website and we have gotten emails and phone calls from various websites which have the mailing address 1 International Blvd, Mahwah, New Jersey, including Chessboss.com, Science.org, and Hospital.com. Under 'about us', Hospital.com mentions 4 affiliate sites: Physician.com, Pathology.org, Medicalschool.org and Disease.com. None of these medical sites lists any writers' names or credentials, legitimate organizational affiliations, or authoritative advisory board (or advisory board of any kind). They just claim that they have a 'top-notch writing staff'. (All the articles I saw were written by 'admin'.)

The email from Hospital.com also claims they are in compliance with MedlinePlus/National Library of Medicine Quality Guidelines, though a quick check of the MedlinePlus guidelines refutes this claim. The guidelines state, for example: ".. The source of the content is established, respected and dependable. The organization publishes a list of advisory board members or consultants on the site."

Since they are putting out scientific, legal, and medical information without proper credentials, I wouldn't have put their links on our website in any case - but I fear they may fool others who are more credulous. Just look at how many doctors they've got signed up on Newdoctor.com! Scary.

[end third party email]
_________

My previous coverage of Phone to Phone Inc. and related entities:

* Phone to Phone Inc. is Spamming Again--This Time for Lawschool.org (Jan. 14, 2010)
* Another Phone to Phone Inc. Employee Speaks Out (Dec. 15, 2009)
* Questionable Employment and SEO Practices at Phone to Phone Inc.? (Dec. 10, 2009)
* Attorney.org is Latest Phone to Phone Inc. Website to Spam Me (Oct. 28, 2009)
* More Spam from Phone to Phone Inc.--This Time on Behalf of Laws.com (Oct. 23, 2009)
* Newlawyer.com Spams Me Again (Twice in One Day!) (Oct. 19, 2009)
* Newlawyer.com: Persistent Telemarketer, and Now a Spammer (Oct. 2, 2009)

I also wrote a review of Newlawyer.com at SiteJabber.

I have received numerous promises from Phone to Phone Inc. that they will stop spamming me, but either they have ignored those promises or they have an incredibly weak internal data tracking system. My latest spammed email from Phone to Phone Inc. (which, characteristically, I received twice, nine minutes apart):
____

from Michael Geller
to egoldman@gmail.com
date Thu, Jan 14, 2010 at 11:18 AM
subject Regarding a Partnership Opportunity

To whom it may concern,

My name is Mike Geller and I am an assistant editor with LawSchool.org. I came across your website and noticed that you have law school related resources on your page, so I wanted to reach out to you to discuss the potential of having LawSchool.org added.

LawSchool.org offers a number of features like a legal career center, up to date law school information and news, profiles of law schools around the country, and information regarding admission standards and financial aid. Several universities and colleges around the country like Syracuse Law School, University of Colorado, and NYU utilize LawSchool.org as a resource for their students. If you have any questions feel free to contact me and please let me know if you are able to make this addition. Thank you very much.

Mike
_____

Obviously Mike didn't actually look at my website (at least, not very closely). If he had, it would have been impossible to miss my repeated blog criticisms of his employer.

I have formulated a new hypothesis that Phone to Phone Inc. is a domainer, i.e., they have a sizable portfolio of domain names, which they are trying to build content for using cheap student labor. Let me offer some support for this theory.

First, they have a portfolio of generic domain names. I don't know how many, in part because the ones I've checked are registered via domain proxies to mask Phone to Phone Inc. as the owner. I believe all of the following domain names are associated with Phone to Phone Inc.:

Attorney.org
Chessboss.com (check out the associated Twitter account--wow!)
Disease.com
Docket.com
Hospital.com
Laws.com
LawSchool.org
Medicalschool.org
Newdoctor.com
NewLawyer.com
Pathology.org
Physician.com
Science.org

I'm pretty sure this list is incomplete. If you know of other domain names in their portfolio, please let me know.

Second, many of their sites are built on the same basic design template. Take a look at a few of the sites and you'll see what I mean.

Third, they use Craigslist aggressively to recruit new employees. See the Craigslist listings for Mahwah, New Jersey and notice how often Phone to Phone Inc. shows up:

* Jan 14 - Looking for Skilled Writers - (Mahwah, NJ) << writing/editing
* Jan 14 - Looking For Marketers - (Mahwah, NJ) << marketing/advertising/PR
* Jan 14 - MARKETING POSITIONS AVAILABLE - (Mahwah, NJ) << marketing/advertising/PR
* Jan 14 - Writing Positions Available - (Mahwah, NJ) << writing/editing
* Jan 14 - Great Postions for Recent College Grads - (Mahwah, NJ) << marketing/advertising/PR
* Jan 14 - Marketing Positions Available - (Mahwah, NJ) << marketing/advertising/PR
* Jan 14 - Marketing JOb Opportunities - (Mahwah, NJ) << marketing/advertising/PR
* Jan 14 - Looking For Writers - (Mahwah, NJ) << writing/editing
* Jan 14 - Limited Number of Marketing Opportunities Available - (Mahwah, NJ) << marketing/advertising/PR
* Jan 13 - MARKETING POSITIONS AVAILABLE - (Mahwah, NJ) << marketing/advertising/PR
* Jan 13 - Limited Number of Marketing Opportunities Available - (Mahwah, NJ) << marketing/advertising/PR
* Jan 13 - Marketing Joba Available - (Mahwah, NJ) << marketing/advertising/PR
* Jan 13 - Limited Number of Marketing Opportunities Available - ((Mahwah, NJ) ) << marketing/advertising/PR
* Jan 11 - Limited Number of Marketing Opportunities Available - (Mahwah, NJ) << marketing/advertising/PR
* Jan 5 - Entry Level Marketing - (Mahwah NJ) << marketing/advertising/PR
* Jan 5 - Writers Needed - (Mahwah NJ) << writing/editing
* Dec 28 - Entry Level Marketing - (Mahwah NJ) << admin/office

I count no less than 9 postings on January 14, 2010 alone! [Update: I count another 7 postings on Jan. 15]. Most of the postings are blind, but they seem to follow some common formats that give me reason to believe that all of these listings are related.

Why does the company need to run so many ads? Are people not responding to the ads? (An unlikely prospect given this down market). Does the company have a large or rapidly growing workforce? Does it have unusually high turnover?

You will notice that the listings clearly target student workers, mentioning that they are hiring graduating college seniors/recent graduates and promising volleyball courts and free Red Bull. I wonder if college students, desperate for a job in a down market, are particularly vulnerable to some of the tactics alleged by a previous tipster?

I am curious about their cost model of developing content. A previous tipster indicated that employees are expected to write about one 500 word article every 30 minutes. At a salary of $12/hr, fully loaded to approx. $15/hr including benefits, this would work out to about $7.50 per 500 word article. (I'm discounting the allegations that they don't pay some folks at all for the work they do, which if true would result in extremely cheap content). I'm pretty sure $7.50 for 500 words is relatively cheap for content acquisition, but you get what you pay for. My personal assessment of the content I've seen is that it's crap--it's low-quality search engine bait that indexes well but is useless to humans who actually read it. Google needs to do a better job coping with these attacks on the integrity of their algorithms. I suspect, in the end, Google will have to make manual downgrades of crummy sites that they discover are engaged in pumping out lots of low content quality. In any case, it appears that Phone to Phone Inc. is aggregating cheap but junky content that will not improve readers' impressions of their brand. No surprises there.

My previous coverage of Phone to Phone Inc. and related entities:

* Another Phone to Phone Inc. Employee Speaks Out (Dec. 15, 2009)
* Questionable Employment and SEO Practices at Phone to Phone Inc.? (Dec. 10, 2009)
* Attorney.org is Latest Phone to Phone Inc. Website to Spam Me (Oct. 28, 2009)
* More Spam from Phone to Phone Inc.--This Time on Behalf of Laws.com (Oct. 23, 2009)
* Newlawyer.com Spams Me Again (Twice in One Day!) (Oct. 19, 2009)
* Newlawyer.com: Persistent Telemarketer, and Now a Spammer (Oct. 2, 2009)

I also wrote a review of Newlawyer.com at SiteJabber.

By Eric Goldman

In November 2009, I spoke at an interesting and unusual event sponsored by the Ninth Circuit Public Information and Community Outreach Committee, a group I'd never heard of before. The group regularly sponsors a conference called the "Northern California Federal Courts Media Conference," which brings together journalists, judges and court administrators to talk about media coverage of the federal courts. This year's event was entitled "New Media in the Courtroom: How Blogs, Twitter and Social Media Are Changing Legal Reporting." You can watch some of the conference proceedings here.

Broadcasting Courtroom Proceedings

The OJ Simpson trial in the early 1990s reshaped media coverage in the courtroom. The trial was documented exhaustively by the cameras and left many with the perception that the judge and attorneys mugged for the in-courtroom cameras (although Kelli Sager's position is that the mugging did not decrease when the cameras were off). Shortly after the OJ trial, the federal courts (and many state courts) adopted ruled prohibiting recording and broadcasting of events within the courtroom. The federal rules even take the discretion out of district court judges' hands to waive the rule if they choose.

As an example of the anti-broadcasting rules, Federal Rules of Criminal Procedure 53 says:

Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.

This rule is fairly easily applied to Big Media representatives who show up with bulky TV or still cameras and are repeat players known to court administrators. But what does it mean to "broadcast" courtroom proceedings in an era where cheap and ubiquitous technological devices have turned every courtroom audience member into a potential broadcaster? In some courtrooms, judges are excluding cellphones and potentially even laptops (Judge Illston says she allows computers unless the typing noise is too distracting). Even more extreme, in November, a district court judge barred a journalist from live-Twittering the proceedings via his Blackberry because the judge took the position (wrongly, IMO) that Twittering is a prohibited "broadcasting" of the event. See US v. Shelnutt, 2009 WL 3681827 (M.D .Ga. Nov. 2, 2009). The judge said:

the contemporaneous transmission of electronic messages from the courtroom describing the trial proceedings, and the dissemination of those messages in a manner such that they are widely and instantaneously accessible to the general public, falls within the definition of "broadcasting" as used in Rule 53. Therefore, this type of broadcasting is prohibited under Rule 53.

The illogic of this rule is overwhelming. Is one Twitter post enough? Does it matter if the poster has no followers? What if the posts are impressions and not factual descriptions? More importantly, does it change the analysis if the reporter writes his posts contemporaneously and then uploads them at the breaks or the end of the day? It seems like it would in the Shelnutt case, but this is silly--it's the exact same content, just posted on a delay.

I don't want to speak for others, but my impression is that none of the conference attendees supported the current categorical ban against courtroom broadcasting. Obviously the journalists and First Amendment types don't like it; but neither did the judges, who would rather have discretion over administrating their courtrooms. Further, a comprehensive recording of trial proceedings could help appellate review as well as future researchers trying to understand a case's context.

There was some hope expressed at the conference that the no-broadcasting rule would be relaxed in the next year or two. In my opinion, the rule has long outlived any usefulness it had. However, Judge Illston sounded a cautionary note when she said that the court reporter lobby is "a force to be reckoned with." Perhaps economic protectionism will make the deregulation process harder than it should be.

We discussed the allocation of scarce resources among potential media sources, such as courtroom seats when audience demand exceeds room capacity. Where encountering scarcities, judges inevitably draw lines between "credible" journalists and other media representatives, even though they don't want to make those distinctions--and no one else wants them to make those distinctions either. For now, my impression is that judges treat Big Media better than bloggers when doling out scarce resources, although as Big Media fades away and citizen journalists continue to prove their credibility and become repeat players, I could see this changing. Obviously the better solution is to eliminate scarcity when possible so every media representative can get equal treatment. Live broadcasting of courtroom proceedings would be a huge step forward in alleviating any seat scarcity issues.

Juror Exposure to Case Information

We also discussed juror exposure to case information. The rule is simple--jurors are supposed to consider only evidence presented in court. In practice, this rule is out-of-sync with modern information flows and people's temptation to self-educate by doing their own research. Certainly that's how I usually proceed when I'm trying to learn something new. I do Google searches and often look through multiple search results, and when I can't do that, I feel bereft. So walling off judicial proceedings both from modern life and people's normal learning processes is fundamentally anachronistic. Evan Brown has more to say on this topic (and supports the anachronism).

Nevertheless, judges are trying to restrict the infoglut by giving jurors increasingly long lists of things they cannot do while in a trial. Not only does this include restrictions on seeking out case information, but it also includes enjoying technological devices that may passively expose the juror to case information. Taken to an extreme, this could include reading one's email, because someone might inadvertently email case information to the juror. As Judge Illston described it, the restriction lists are like trying to sequester jurors without sequestering them--in other words, cut off their information flows without physically restraining them, Jennifer Granick suggested that judges may need to designate more alternate jurors so that the inevitable juror slip-ups don't require a complete process restart.

The de facto info-sequestration raises some interesting questions about whether depriving jurors of their normal tools actually degrades jurors' decision-making. It reminds me a little of the mental confusion that can occur when law professors force law students to take law school exams using hand-written bluebooks when all of the students spent the entire semester learning the material and expressing themselves via computer. Carol Williams from the LA Times also pointed out that info-sequestration poses problems for potential jurors who need to use the Internet for professional and personal reasons. Ultimately, these folks may be removed from the jury pool, directly or because they try to wiggle out of the obligation, and either way this change in the jury pool could have other unwanted consequences.

This discussion suggested a sure-to-work way to get kicked off a jury or avoid being empaneled in the first place--simply search for case information using your mobile device while you're waiting, and off you go. Of course, if they judge instructs you not to do that, it would be inappropriate and potentially punishable to disregard the judge's instructions.

A related issue: In many cases, testifying witnesses are not supposed to monitor trial proceedings. However, with the advent of real-time reporting on cases, it's possible to do so remotely--and frequently judges do not have a chance to admonish witnesses until they appear in the courtroom, which might be too late. Judges can tell lawyers to instruct their witnesses not to monitor the trial proceedings, but lawyers might drop the ball or witnesses might not heed the warning (especially if the witness is adverse or would give more credit to a warning directly from the judge). Lawyers cross-examining a witness might increasingly ask the witness what research he/she has done to learn more about the trial proceedings.

Conclusion

The interplay between court administration and media/blogger coverage is an interesting, rich and multi-faceted topic. The conference covered a lot of ground but left many questions open. For more reading about the conference, see Joyce Cutler's BNA recap and John Steele's live-blogging of the first session.

Some recent topically related articles include Rachel Lee, "Ex Parte Blogging: The Legal Ethics of Supreme Court Advocacy in the Internet Era" and the recently issued and very useful CMLP Guilde to Live-Blogging and Tweeting from Court.

Media Alerts Initiative

In a separate but related announcement, Judge McKeown previewed the new Media Alerts on Federal Courts of Appeals, where academics will select and summarize key federal appellate court rulings. The site describes its mission as:

This website is designed to provide reporters, lawyers, educators, and the public with prompt, accurate, unbiased information about newsworthy and legally significant cases pending in and decided by the Federal Courts of Appeals. Our goal is to assist the media’s efforts to provide timely and extensive reporting about federal court decisions.

I think this is a great objective, although I wonder how useful media folks will find the website, especially given that it is effectively competing with existing blog coverage. I also wonder how invested the academics and their students will be in this endeavor. For example, just looking at the Ninth Circuit roster, the featured "upcoming cases" have an argument date of Dec. 14. Hmm....

In response to my prior post of a Phone to Phone Inc. employee's email, I got the following email (reposted with permission):
_____________

[begin third party email]

Good evening Mr. Goldman,

I am a former "employee" of Phone To Phone Inc. I looked them up on Google and found your article on New Lawyer as it was one of the top links to pop up. Phone To Phone Inc itself as a company is a scam. They tell you you're on a training period of three (3) days, during which time you will be payed $12.00 per hour, and IF YOU PASS THE TRAINING, you will become a full time employee. However, during those three days, they had me making 150-200 phone calls, 100 E-mails, with expectations of getting a minimum of 3 "links" per day, without ANY actual training!

I didn't even know what a link was, but they felt confident enough to throw me on the phones and put the company name in the dumpster with my lack of knowledge, which I surely did, proudly.

On my second day of "training", another employee I became relativity close with told me the President of the company Borris, along with one of the managers Domenik, brought him in the back room and told him he wasn't working out, and they'd like him to quit. With no second thoughts, he told them he quit. Well, because he "quit", they claimed that there was a company policy (which was NOT made available to sign when given three vague papers to read on the first day of training) that claims if the trainee quits during the first TWO WEEKS of working at Phone To Phone, then the company DOES NOT have to pay the trainee/employee.

On my third day, I get called into the back office. I get asked to quit, because it wasn't working out. Fortunately, I was made aware of their scam by my friend the day before, so I declined to quit. I sat in the office arguing with Domenik for nearly an HOUR before he finally got the idea that I was not budging. I asked him for the papers stating the "not getting paid if quit within 2 weeks", which is when he came back and offered to pay me for one of the 3 days I worked. When I told him paying me for one of the three days I worked was NOT a favor, that I still wanted the papers, he said they'll write me a check without taking out any taxes, despite the fact they didn't even have me fill out any tax forms. (Supposedly, all that legitimate stuff comes after the training period.) At that point, I realized what a scam it was, until they gave me the HAND WRITTEN check of $96.00, that's when I realized it was a JOKE.

Phone To Phone is NOTHING more then a scam, and the sites they represent are far from adequate. You have my permission to use this E-mail on your website or any other resource you so choose, I just ask that you please change my name and do not publicize my E-mail address.

I hope this has given you a better insight as to what Phone To Phone is all about.

[end third party email]
_____________

I then got a follow-up email from the same person addressing my confusion about the myriad of folks who all listed the same job title in their spams:
_____________

[begin third party email]

[a quote of mine from a prior blog post] "Interestingly, Dominic's email indicated that he was the director of marketing. So either they have multiple directors of marketing, or Dominic got the sack (wishful thinking) or everyone who uses their template falsely claims to be the director of marketing."

You are very correct. On my first day of training, I ask Dominic what the name of my position was, and he told I am "free to choose" between Senior Marketing Executive, or Director of Marketing. When I asked him how it's possible I can be holding a "senior" or "director" word in my position name on my FIRST DAY OF TRAINING, he said to me "It just makes the person you're talking to feel like they're talking to someone high up in the ranks." But in reality Eric, other then Dominic and a few others, every other "director of marketing" or "senior marketing exec" are in fact not directors and seniors, but merely college students on a three day "volunteer" training period.

[end third party email]
_____________

All of this helps explain why we as bloggers kept getting hammered in a short period of time by repeated telemarketing and spam despite our opt-out requests. These emails also reinforce that we should be asking some very tough questions about the legitimacy of Phone to Phone Inc.'s practices.

In response to my blogging about Phone to Phone Inc. (1, 2, 3, 4), which operates newlawyer.com, laws.com, attorney.org, science.org and other websites, I recently received the following self-explanatory email from a Phone to Phone Inc. employee raising some issues about Phone to Phone Inc.'s employment and SEO practices. For obvious reasons, I've redacted information that would be likely to identify the author. I have not been able to verify the accuracy of this email, but it is consistent with a telephone conversation I had with someone else who was recruited for a Phone to Phone Inc. position.
__________

[begin third party email]

"They hired me as an article writer for their "websites". Which if you haven't seen... compare the following two of their big ones

www.attorney.org
www.science.org

And click a few links. They had me write 15 500 word articles based on keywords. I spent the day writing 500 word articles with the keyword [redacted]. Where there must be 30 total instances of the keywords in each article and they do zero fact checking.

In order to hopefully gain full employment I would have to show up at their office each day, write 15 of these a day. On the third day, they could let me go, and keep all 45 of the articles I wrote. They bring in about 20 new people a day, having them do something similar. Though most people are hired to make calls, and they have them make at least 150 calls each day for three days before informing them if they've been accepted for employment.

They bring in about 20 "prospectives" a day, and hire very very few. This gets them a lot of "free" work.

You will notice that the articles on their websites are not, in fact, articles based on the content, but based on keywords. Try a few of the links and you'll notice on science.org in one 500 word article the word science appears approx 25 times.

All attempts to get their site to be the number one hit on key terms without having any actual content to speak of."

[end third party email]
__________

This email prompted me to poke around both science.org and attorney.org. I was completely unimpressed by the quality of content I saw. I thought this junk article (I nofollowed the link--no link juice from me!) on "Patent Laws for Inventors" was a fine exemplar of the (low) article quality on science.org. Check it out and evaluate it for yourself. I don't mean to be snarky, but I would expect most seventh graders to do a better writing job than the writing in this article. A few representative quotes:

* "Inventors may come up with ideas that are in regard to machines or processes."
* Referring to design patents, "A design is the face of the product or the company and should be protected. Designs distinguish and separate one company from the next and it is because of this that this type of patent is required for businesses and manufacturers alike." [this was not about trade dress or trademarks; it was about design patents]
* "A patent should not be confuse [sic] with a copyright. A copyright will provide inventors with the rights to prevent any other inventors from producing material in the same way or with the same expression."
* "Keep in mind that not everything can be patented and some things are already, so make sure you have a solid and original idea before you even apply for one."
* "It should be also noted that the process may be lengthy and is not conducted over night."

A sterling contribution to the literature. Anyone who knows IP law can immediately spot ambiguities or outright flaws in the above quotes. Frankly, if it weren't so spammy (out of 516 words, I count 18 references to "patent" and 15 to "inventor"), I'd actually wonder if this was intended to be a spoof or satire about how seriously people take patents. Even if that wasn't the intent, the article has far more value as a satire than it does as an educative piece.

I apologize for the flurry of blog posts on the spam I'm receiving from Phone to Phone Inc. websites, but I've found that lots of folks are experiencing the same problem. I've already criticized Phone to Phone Inc. for their spam promotion of Newlawyer.com (including my SiteJabber post on Newlawyer.com) and Laws.com, but their relentless spamming continues. I remain very impressed that they have so many different marketing executives at Phone to Phone Inc. (unless, of course, they are lying about the sender's identity, which I know they wouldn't do...would they?). Yet, for all of that in-house marketing expertise, apparently none of these executives have successfully convinced Phone to Phone Inc. that their spamming campaign is counterproductive to their long term objectives. Given that, I don't expect my shaming blog post will convince them either, but a lawsuit, Google de-indexing or a properly organized Googlebomb might be a different story. And I think the company might reconsider the quality of guidance it's getting from its marketing executives.

Here's the text of the spam promoting Attorney.org. Uh, no thanks.
_______

from Michael Foti
to egoldman@gmail.com
date Mon, Oct 26, 2009 at 7:31 AM
subject About Your Blog

Dear Eric,

My name is Michael Foti and I am the Executive Director of Marketing for Attorney.org. I am writing you this email to better inform you about our website and in hopes of reaching a mutually beneficial strategic partnership. Attorney.org is one of the top sources of free legal information on the Internet. We provide articles of general and specific information to our visitors regarding common legal issues as well as breaking legal news. In addition to providing information, Attorney.org will be profiling noteworthy attorneys from around the country, attorney generals, district attorneys, and high-ranking local, state, and federal government officials. It is not only a great networking tool for attorneys, but it is also an efficient way to reach out to prospective clients. I believe that your blog can benefit greatly from a new audience of 10,000 unique visitors a month.

We want to list your blog as a source of information on our resources page, and potentially highlight you as a top blog on the Internet in an article on Attorney.org. Our website currently ranks in the top 50 for the anchors "attorney" and "attorneys", and will only continue to move up. I am hoping that in return, you will be able to include a link to Attorney.org somewhere on your blog (preferably as an addition to your blog roll). This would increase the free flow of information and provide an additional source of information for the readers of both our websites.

There is no doubt in my mind that your blog will be a valuable resource to our Attorney.org users. I believe that we can both benefit from this prospective strategic partnership as the increased traffic will drive new users to both our websites. Should you have any questions at all, please do not hesitate to contact me. I have included the link information as well as my contact information below.

Title: Attorney, Attorneys (Attorney.org)
Description: Attorney.org

Michael Foti
Executive Director of Marketing, Legal Network
1 International Blvd. Suite 211 Mahwah, NJ 07495
Office: 201-252-8255
Cell:551-795-2806

I've been kvetching about the heavy barrage of spam and telemarketing from Newlawyer.com. I haven't previously mentioned that they are an operation of Phone to Phone Inc., which apparently has branched out into spamming for other sites it operates. This week a number of folks complained about being spammed with an email congratulating them as a top 100 law blog. See, e.g., Bob Ambrogi's post. I never received the top 100 honor spam but I was privileged enough to get a different spam from Laws.com:
___

from Partick Coleman
to egoldman@gmail.com
date Wed, Oct 21, 2009 at 12:47 PM
subject Love this site -http://www.ericgoldman.org

Dear Webmaster,

Our website Laws.com is considered one of the largest legal informational database in the world, containing crucial information on jurisdictions and breaking legal news. We have offered this site to the public to increase the FREE flow of information. There is little to be said for the many judicial systems around the country and we strive to offer the information much of the public seeks. The only way to increase the information we offer is to seek out some of the top informational resources online. Your blog seems to be an excellent informational resource and would bring a great resource to our viewing public. We would be pleased to offer your inclusion in Laws.com as a featured blogger, as well as giving you the Laws.com Featured Blogger Badge. This is a prestigious award given to some of the brightest bloggers around the country to recognize their dedication and hard work. You will see the code for the featured blogger badge within this email, please get back to us with your blogs banner so we may make your blog available to our public ASAP. Thanks!, keep up the great work.

[code omitted to ensure that they get no link love here]

Nick Fox
Senior Marketing Executive
Phone to Phone Inc.
1 International Blvd. Suite 203
Mahwah, New Jersey
+1(551) 655 6828
Laws.com
_________

If this is the first time I had heard from this outfit, I simply would have marked it as spam as another link request and then moved on. But because of the Phone to Phone Inc. connection, this just becomes more evidence of Phone to Phone Inc.'s shadiness. Another piece of evidence of their shadiness: the email purported to be from "Partick Coleman" but the sig block says "Nick Fox." Spamming lawyers and bloggers is bad enough, but sloppy spam is inexcusable!

I am now skeptical of all Phone to Phone Inc. operated websites, which (according to Bob) include Laws.com, NewLawyer.com, Attorney.org, LawSchool.org and Docket.com. Great way to build your brand, guys.

Newlawyer.com continues to earn my antipathy. You may recall that a few weeks ago, I got spammed by Dominic Sebahia on behalf of Newlawyer.com. At that time, I sent my blog post to Dominic and got the following reply:

"Sorry about it, Sir. But, there was no harm intention to hurt you. I am promising you that no one from our firm will be contacting you in future. Our emails are not spam. We just need co-operation from people like you. We are here to help people. Anyways sir, I am sorry again." (emphasis added)

A broken promise! This morning I got a virtually identical spam from Steven Kim under the subject line "We love your blog" (aww, how sweet, but I'm beginning to wish they loved me a little less):
_________

from Steven Kim
to egoldman@gmail.com
date Mon, Oct 19, 2009 at 9:18 AM
subject We love your blog

Hi,

My name is Steven and I am the Director of Marketing for NewLawyer.com.I found your blog/website interesting. Our blogs are posted in most of the websites. I want to feature you onto our website and that for absolutely free. Our website is the first telelegal portal that connects attorneys to those in need of legal advice through phone to phone consultations via the technology on our website. I would love to feature your blog on NewLawyer as I believe that many of our Lawyers would enjoy your blog. I was hoping to have NewLawyer added to your blog roll if that would be at all possible. I've included some additional information below and if you have any questions feel free to find my contact info below and call me. I look forward to hearing from you.

We would like to list your blog on our site as an additional resource to our users. We believe that your blog would be a great addition. The blog's website would be linked to our page so that our users would be able to click the link and utilize your website and find more information. We believe in the free flow of information and want to provide the best resources for our users. The following information is to reciprocate the link on your own website:

Title: Lawyer, Attorney , Legal Advice , New Lawyer (NewLawyer dot com)

Description: Personal Injury Lawyer, Accident Lawyer, Divorce Lawyer, Attorneys, Legal Information

The following are points of information listed on our website:

* Listings of licensed legal professionals
* Blogging information
* Legal news around the country
* Additional resources for the users to take advantage of.
_________

Interestingly, Dominic's email indicated that he was the director of marketing. So either they have multiple directors of marketing, or Dominic got the sack (wishful thinking) or everyone who uses their template falsely claims to be the director of marketing.

I am beginning to get emails from other folks who are ticked at Newlawyer.com. For example, I recently got the following email:

"I just wanted to write and thank you, post reading your article on NewLawyer.com. They approached me this evening with the standardised letter and I found the whole affair a little dubious. Google flagged up your article and it confirmed my sentiments. As there is nowhere on your site to comment, I am e mailing just to say your post is appreciated."

It just seems inevitable that if Newlawyer.com keeps annoying lawyers, eventually one will turn litigious. You've been warned.

UPDATE: I got a second identical email from Steven Kim about 3 hours later. What will it take to stop their emails?

UPDATE 2: Ryan Gile of Las Vegas Trademark Attorney blog also got nailed with the following message:

Dear Mr. Gile,

My name is Michael Foti and I am the Director of Marketing for a network of legal websites that includes Laws.com, NewLawyer.com, Attorney.org, LawSchool.org, and Docket.com. Here at NewLawyer.com, we are running a campaign to highlight some of the top blawgs on the internet. After reviewing your blog, we'd like to include you, and your blawg, in that feature. Below, I've included the code for you to copy and paste into your source to display your NewLawyer.com Top Legal Resource award button. An extraordinary amount of time and effort goes into making a feature like this possible, so all we ask in return is that you display your award banner prominently for all your readers to see. Please email me once you post it so I can check it out. Thank you and congratulations on being one of the top legal resources on the internet!

[snip]

Michael Foti
Director of Marketing, PhoneToPhone Inc.
1 International Blvd. Suite 211 Mahwah, NJ 07495
Office: 201-252-8255
Cell:551-795-2806

UPDATE 3: I posted a critique of Newlawyer.com on SiteJabber.

I have Westlaw alerts set up to notify me when court opinions discuss the major social networking sites. As a result, I am now seeing a steady stream of cases where Facebook or MySpace postings are being used to contradict a litigant's or witness' testimony in a court case. I think the following excerpt from People v. Franco, 2009 WL 3165840 (Cal. App. Ct. Oct. 5, 2009), where a jury convicted the defendant Franco of vehicular manslaughter with gross negligence, exemplifies what I'm seeing:

At about 10:30 a.m. on June 6, 2006, Franco and Henry Chavez were seen racing each other in their Mustang vehicles on the Ventura Freeway, each reaching speeds of approximately 100 miles per hour. Franco applied her brakes while Chavez was directly behind her, causing him to lose control of his vehicle. The vehicle travelled to the other side of the freeway, flipped, and landed in a strawberry field. Chavez was killed. Franco did not stop.

Franco testified that she was driving approximately 75 miles an hour on the freeway when Chavez began tailgating her. When she changed lanes, he followed her. Noticing that her speed had increased, she tapped on her brakes to slow down. Chavez veered to avoid hitting her, then lost control of his vehicle. She saw a plume of dust but kept driving as her boyfriend advised when she called him on her cell phone. The day before the accident, however, Franco had written on her MySpace page, “If you find me on the freeway and you can keep up I have a really bad habit of racing random people.”

I know most of us already know this lesson, but this case reminds us that our statements on social networking sites can and will be used against us. It also reminds us how hard it's becoming to maintain multiple persona--in this case, the in-court persona of being a safe and courteous driver while simultaneously maintaining an alternative persona as a "secret" street racer.

If I may, let me propose three rules for avoiding unnecessary trouble:

1) Never tick off a lawyer. They tend to be, you know, litigious by nature.
2) Never tick off a blogger. They tend to be very noisy about their gripes.
3) Never, ever tick off lawyers who also blog. A toxic combination.

Newlawyer.com has pulled off an impressive hat trick of rule violations. I'm not exactly sure I fully understand Newlawyer.com's business, but my superficial review of the site suggests it is some sort of lead generation engine for lawyers.

For some reason, Newlawyer.com has been one of the most aggressive and persistent solicitors of a link exchange I've encountered. Despite the relatively small footprint of my blogs, I get plenty of requests from folks for link exchanges, all of which I categorically turn down. Usually I hit the "report spam" button on Gmail and occasionally I'll write a "no thanks" reply, and either way that ends that. In contrast, I've had more difficulty evading Newlawyer.com because they have telemarketed me at least 6 times, including three phone calls in a 36 hour span earlier this week. I don't understand what kind of boiler room operation they are running, but I can't imagine how calling me 6 times can be cost-justified even if I did agree to the link exchange (which I won't, and you'll notice they aren't getting any link love in this post either). Just how much is a link from my blog worth to them???

I've tried to politely but firmly tell them to buzz off each of the six times they have called me, and each time I get a mea culpa and a broken promise not to keep calling. But I guess in a technical way they have finally honored their promises because today I got a spam from them (see, no phone call!) once again soliciting a link exchange. The email text:
_______

from dominic sebahia
to egoldman@gmail.com
date Fri, Oct 2, 2009 at 7:46 AM
subject i like your blog

Hi,
My name is Dominic and I am the Director of Marketing for NewLawyer.com.I found your blog/website interesting. Our blogs are posted in most of the websites. I want to feature you onto our website and that for absolutely free. Our website is the first telelegal portal that connects attorneys to those in need of legal advice through phone to phone consultations via the technology on our website. I would love to feature your blog on NewLawyer as I believe that many of our Lawyers would enjoy your blog. I was hoping to have NewLawyer added to your blog roll if that would be at all possible. I've included some additional information below and if you have any questions feel free to find my contact info below and call me. I look forward to hearing from you.

We would like to list your blog on our site as an additional resource to our users. We believe that your blog would be a great addition. The blog's website would be linked to our page so that our users would be able to click the link and utilize your website and find more information. We believe in the free flow of information and want to provide the best resources for our users. The following information is to reciprocate the link on your own website:

Title: Lawyer, Attorney , Legal Advice , New Lawyer (NewLawyer.com)

Description: Personal Injury Lawyer, Accident Lawyer, Divorce Lawyer, Attorneys, Legal Information

URL: http://www.newlawyer.com

The following are points of information listed on our website:

* Listings of licensed legal professionals
* Blogging information
* Legal news around the country
* Additional resources for the users to take advantage of.

Dominic
Director of Marketing, PhoneToPhone Inc.
1 International Blvd. Suite 211 Mahwah, NJ 07495
Office: 201-252-8255
Cell:201-663-2565
_______

The silly thing is that if they really believe that linking to my blogs is valuable to their audience, they don't need my permission, and they know it (if for no other reason than I've told them so in a couple of our phone chats). But clearly the flattery and the request to link to me is just a ruse to get me to consider the reciprocal link exchange. Also telling is the reference to my non-existent blogroll (something I've also mentioned to them on the phone).

Now, I'm not a litigious person, so I'm not personally interested in investigating my legal rights against Newlawyer.com for their repeated disregard of my requests. However, in response to my anti-Newlawyer.com Twitter posts, I saw that several other lawyers have been getting bombarded by Newlawyer.com solicitations. It's possible they are not as reticent as I am.

Irrespective of their ultimate legal disposition, it seems like Newlawyer.com is doing a fantastic job of alienating one of its core audiences (lawyers) and building a reputation (but not a good one). Further, should Google get wise to Newlawyer.com's aggressive efforts to generate link exchanges, Newlawyer.com's strategy could very well backfire in a big way.

Today, the Seventh Circuit issued an opinion in Wiesmueller v. Kosobucki, written by Judge Posner. This lawsuit is a class-action challenge to Wisconsin's diploma privilege, which allows graduates of UW Madison and Marquette to become lawyers in Wisconsin without taking a bar exam. Licensed lawyers in some other jurisdictions who have sufficient practice experience can also obtain a Wisconsin law license without taking a Wisconsin bar exam, but everyone else has to take the bar exam to get a Wisconsin license. For example, California does not have reciprocity with Wisconsin, so when I moved to Wisconsin, I would have had to take the Wisconsin bar exam to obtain a Wisconsin license despite my California license and eight years of practice experience.

Many states used to have a diploma privilege, but over the years all of the other states have adopted a bar exam requirement, leaving Wisconsin as the only state still with a diploma privilege.

As I have written before, I am not a fan of the diploma privilege. Its effect was to encourage/pressure Marquette students to stay in Wisconsin rather than exploring other labor markets which required a bar exam that required months of painful and joyless studying without a salary to prepare for. This distortion in out-migration meant that Marquette's reputation was heavily regional because the geographic footprint of its alumni was comparatively limited.

As a professor, the diploma privilege was stressful. Posner writes that Marquette and UW Madison might have "less incentive to spend time drilling them on Wisconsin law than the faculty of most law schools in other states would have” because there is no pressure to prepare students for the bar exam. In fact, the opposite was true. My Marquette colleagues and I were acutely aware of our responsibilities to Wisconsin citizens. We knew that our students could hit the streets the day after graduation and set up a shingle without any bar exam "filter" or even the doctrinal review that most students get from their bar exam preparation course. Knowing that I was the "last stop" in evaluating my students’ mastery of legal doctrines, I felt significant pressure to ensure my students had really mastered the law—perhaps more pressure than I feel today knowing that my current students will have to survive one more major examination of their doctrinal knowledge before they get unleashed onto the public.

In this ruling, the Seventh Circuit revives the legal challenge to the Wisconsin diploma privilege and remanded the case to the district court for more fact-finding. Much of the opinion implicitly espouses a skepticism that UW Madison and Marquette do anything special to teach students Wisconsin law.

I understand this skepticism, but I think it’s unwarranted. From my perspective, Marquette emphasized Wisconsin law plenty. To reinforce this message, Dean Kearney's ridiculously oppressive Faculty Activity Report form always asked us to identify how we incorporated Wisconsin law into our courses. Given that this report was tied to our compensation, I certainly got the message. I included Wisconsin-specific legal doctrines in all of my courses—even my Cyberlaw course, which is not so easy given the borderless nature of the subject material!

To be clear, I didn't emphasize Wisconsin law to the exclusion of national legal principles. After all, some of my students were leaving Wisconsin, and I needed to prepare those students as well. As a result, it's not clear to me if Marquette emphasizes Wisconsin law more than other schools emphasize their local state’s laws. My guess is Marquette's balance between state and national law is fairly similar to many other schools' balance. But we definitely taught Wisconsin law!

Others have already provided some analysis of the opinion. Some worth checking out include:

* Dean Kearney. Among other things, Joe says "I expect that on remand (and any subsequent appeal) the diploma privilege will pass constitutional muster."
* my former colleague Christine Hurt
* State Bar of Wisconsin report

Today's opinion was exciting for another (and wholly unexpected) reason. The opinion provides a lengthy shout-out to a 2006 post from this blog about the Wisconsin diploma privilege. It is always satisfying to be cited by a judge, and it does not happen every day for me. My works have been cited in less than a half-dozen judicial opinions, and I believe this is the first time I've been cited in a federal appellate opinion. And being cited by Judge Posner, one of the most esteemed jurists of our time, is especially gratifying.

Ironically, the blog post in question is hardly one of my most brilliant contributions to the dialogue. It's a simple 3 paragraph post (partially recapping and responding to a video from a local Wisconsin station) that probably took me less than 30 minutes to research and write, compared to some of my thoroughly researched multi-thousand word entries that take over a dozen hours to write. I've experienced this before in the sense that my most heavily trafficked blog post of all time (and thus, one of my most widely read works ever) was a single paragraph blog post I pounded out in less than 60 minutes making a snarky point about a New York state law banning domain name sales to terrorists. It's a fine post for what it is, but I never expected that it would get the attention it got.

These are vivid reminders that we as bloggers need to stand behind every post we make. We never know who is going to read a post (however lightweight it is) and cite it in a federal appellate opinion.

I finally got fed up with Internet Explorer 7. The last straw was the fact that it was choking on Ajax-heavy websites. When I would have the combination of Gmail, Google Calendar and Facebook (or even a subset of these) open as windows, my computer RAM would go into a downward spiral that led to chip overheating, causing the fan to essentially run continuously. This was also destabilizing the windows, leading to at least one browser crash a day.

I decided to try Google Chrome. After all, Google owns almost every aspect of the rest of my life; why not my web browser too? I've been running Chrome for the past few days and so far it has been very stable. I have also had almost no situations of runaway chip usage due to Ajax-intensive sites. So far I'd consider the test a success.

However, Chrome also has some quirky aspects. If you have any thoughts about how to deal with these, I would welcome input.

* my biggest frustration with Chrome is that the default screen size is much smaller than my actual monitor size, causing Chrome to render most pages in microscopic type with an excess of white spaces on the page. I can fix this on an ad hoc basis by "zooming" in, although that sometimes distorts page rendering. Is there a way to permanently boost the default screen display so that every new Chrome window shows web pages larger? I have tried boosting the default font size, but that works inconsistently and often just distorts the page layout without improving readability.

* I miss certain aspects of the Google toolbar. Most obviously, I liked being able to see the PageRank of a site. Is there an easy way to view a site's PageRank in Chrome? I also like Chrome's native spellchecker, but I don't fully trust it is working all the time. Is there a way to force spellchecking on demand?

* There are some buttons in my Movable Type pages (probably Flash; maybe Java) that just don't show up. Any thoughts why? I'm assuming I'm missing some essential plug-in, but I'm not sure what it is or how to get it.

* IE has a feature that automatically tells me if a web page has an RSS feed. Is there an equivalent capability for Chrome?

I gave another talk today for PLI describing social networking sites and blogs. Even though it was for a lawyer audience, it was more fun than a typical CLE talk because it had no law. My talk slides.

A couple of weeks ago, the High Tech Law Institute hosted the fourth gathering of Bay Area legal bloggers. About 20 bloggers and friends gathered on campus for a very spirited discussion. Attendees included Harry Boadwee, Cathy Gellis, Eric Goldman, Joy Haas, Kirk Hanson, Eric Hartnett, Greg Haverkamp, Gordon Johnson, Kimberly Kralowec, Mike Masnick, Cathy Moran, Amy Morganstern, Joe Mullin, Simon Offord, Chris Peeples, Colin Samuels, Michael Sardina, Mister Thorne, Kevin Underhill and Julia Wei.

We talked about blogger burnout. While updating the census of local blawgers, I noted that many bloggers who started in 2005 and 2006 have either stopped or substantially curtailed their blogging. We came up with a number of possible explanations for this phenomenon:

* one blogger said he had run out of things to say. I think this may be more common than people realize.
* a few bloggers discussed the rise of competing publishing platforms, such as Facebook and Twitter. As one blogger described it, the increased number of communication channels has dissipated efforts across all channels. This is definitely different from our first Blawger gathering 2 years ago, when Facebook and Twitter were far less popular than today. In my case, Twitter (which I automatically link to my Facebook status report) has unquestionably usurped some of the posts I used to make at this blog.
* a few bloggers discussed the lack of time to blog. This is an age-old issue. One blogger described how she goes through cycles of blogging depending on her schedule. Unfortunately, bloggers can have difficulties maintaining audience if they go silent for an extended period of time, so blogging in cycles isn't the easiest thing to do. (It can help to have reliable co-bloggers who can smooth out the publication cycle).
* one blogger described how she is burned out on reading blogs. I've definitely been there! In my case, switching from Bloglines to Google Reader has helped reinvigorate my reading excitement by expediting my ability to manage my data inflow. It's also allowed me to expand the blogs I'm reading, especially those that are episodic.

We then moved into a discussion about managing comments to blog posts. I don't have much to contribute to that discussion because my blogs don't have open comments, the legacy of a pernicious comment spam attack that caused my blog host to shut me down for a morning. Bloggers have very disparate attitudes towards comments to their blog posts. One blogger mentioned how she didn't really like comments because of the risk of commenters disclosing personal details (which can be a real problem for prospective clients). A different blogger preferred comments over email because of the public response; several bloggers discussed how it can be embarrassing and self-perpetuating for a blog to allow comments but never get any. As one blogger said, people don't want to feel like they are talking to themselves. Several bloggers also noted that lawyer-readers can be especially reluctant to comment to blog posts because they don't want the accountability. When I did allow comments, I definitely had that perception.

We also discussed Twitter. For a while, I was confused about Twitter's value proposition because, like blogging in its early days, the early adopters of Twitter used it to chronicle their personal life. Much like this early usage defined bloggers as self-absorbed and exhibitionist, I initially had the same impression of Twitter. However, once I figured out that Twitter was just another content publication platform, I found it could extend my reach. As a result, many of my tweets simply promote my blog posts, but I do make other types of tweets, including short entries that would have previously made it onto this blog and various personal observations that would never have warranted a blog post at all. One blogger commented that this mixing of personal and professional can help humanize a person.

What has amazed me about Twitter is that I've aggregated a bunch of lawyer-readers who would never have found or subscribed to my blog. This baffles me because Twitter is IMO a terrible reading interface. I find Google Reader a much more intuitive way to subscribe to and manage incoming content. As a result, I subscribe to very few people on Twitter because I'd rather read them in my RSS reader if I can. However, having identified a way to aggregate new readers shows me that people consume content using a variety of different interfaces. If people find Twitter a good substitute for an RSS reader (even if I don't), then it's in my self-interest to publish my content in the places people are reading.

There can be too much of a good thing, and we did discuss that some people are too noisy/frequent with their tweets, which can actually drive away readers/subscribers. We discussed at the meeting (and I've since heard elsewhere) that people are putting themselves on a Twitter "diet," i.e., a maximum number of tweets per day.

I'm not sure what the future holds for the Bay Area Blawgers group. Attendance has dropped significantly from the first gathering. Further, blogging is changing rapidly between the influx of "corporate" bloggers (i.e., law firms that are setting up blogs principally for SEO juice) and the splintering of publication options. It's not clear to me if there remains a blogging community sufficient to support a standalone event about blogging. Nevertheless, maybe we'll try to gather the group again in late 2009/early 2010, perhaps in San Francisco, and see who shows.

Prior resources related to the Bay Area Blawgers:

* Announcements of Bay Area Blawgers 1.0, 2.0, 3.0 and 4.0.
* Recaps of the first and third gatherings. Beth Grimm has written an interesting meta-recap.
* Photos from the second and third gatherings.
* List of possible issues for a blawgers' discussion.
* Census of Bay Area Blawgers.

Please mark your calendar for March 18, 6 pm-8pm, for the fourth gathering of the Bay Area Blawgers. We'll make a more formal announcement of the event soon. This event is open to everyone and there's no admission charge, but it will be especially interesting to legal bloggers. If you are not on the list of Bay Area Blawgers, please contact me so I can add you. Otherwise, please let me know if you think you can make the event so I can add you to the list of expected attendees in the formal event announcement.

BTW, the theme for Bay Area Blawgers 4.0 will be "Blawger Burnout." I've noticed a very heavy turnover of blawgers in the past 12 months, and I think that will be a good topic for us to explore. There should be plenty of time to discuss other topics and to mingle with other local bloggers.

Prior resources related to the Bay Area Blawgers:

* Announcements of Bay Area Blawgers 1.0, 2.0 and 3.0.
* Recaps of the first and third gatherings. Beth Grimm has written an interesting meta-recap.
* Photos from the second and third gatherings.
* List of possible issues for a blawgers' discussion.
* Census of Bay Area Blawgers.

I've been running two blogs for about 4 years now, and much of that time, the blogs have operated in relative obscurity. Don't get me wrong, I am very grateful for the blog's many readers, and I'm always amazed when I meet people for the first time and they mention that they are blog readers. And there have been a few high points, such as occasional blog pickups in Digg, Slashdot, Wonkette (back when that mattered) and the New York Times, but those have been rare--and even rarer in the past 2 years, which I think has contributed to the blog's Technorati ranking now being only about half of its all-time high.

Then, mysteriously, in the past couple of months, the blog has started to pick up "best of" awards (about a half-dozen in Q4 2008). I say "mysteriously" because the blog really didn't receive many such honors in its first 3 1/2 years, so to have them come in a bunch was very odd. I don't have a good explanation for the sudden recognition; perhaps the blog has earned extra gravitas simply due to its venerability, while many other top bloggers of its era have moved on to other things.

In light of this history, you can imagine my surprise to learn that the Technology & Marketing Law blog is one of 10 finalists for the "Best Law Blog" Weblog Award. First, there are many excellent and much-better-known blawgs that didn't make the list but should have. Second, the blog has never tried to cater to a general audience, and the blog intentionally assumes a lot of foundational knowledge about its subject matter. I get emails all the time from readers asking me to explain the legal basics better and stop using so many acronyms, but we've deliberately kept the conversation sophisticated. Third, the blog doesn't look like a paradigmatic "blog"--the average post is probably close to 700 words (with some posts over 2,000 words), and there are almost never as many as 5 posts in a week. So to be recognized as a finalist despite all of these irregularities is stunning to me.

I have no illusions about the blog's chances of winning--they are zero (not 1%, but 0%). There are 4 major players in the category that have defined the public's perception of what a legal blog looks like (Bashman, Volokh, Above the Law and the WSJ Law Blog). Each of those sites has at least 10x the number of readers that the Technology & Marketing Law Blog has, and it would be truly shocking if one of those four didn't win. So feel free to vote for the blog if you want, but consider it more like a statement vote (like writing in Daffy Duck for president), and I won't be campaigning for votes. For a niche blog with a small target audience, just being a finalist is plenty of recognition.

As always, many thanks for your continued readership. Happy new year!

I've been thinking about the lifecycle of blogging. This is prompted by my move from Bloglines to Google Reader, which (among other salutary benefits) has allowed me to add new blogs again after having repeatedly cut my blog subscriptions in Bloglines. I had subscribed to and then dropped a lot of blogs over the course of my Bloglines relationship, so I have been checking out the latest status of many of these old favorites.

Based on this ad hoc review, I've observed a possible pattern to the lifecycle of bloggers. Bloggers typically start with a ton of enthusiasm, enamored by the freedom to write and the positive strokes received in return (I'm reminded of Dan Solove's humorous post about that), plus new bloggers often have a backlog of topics to cover. Then, one of two outcomes seems to occur:

One main outcome is that the blogger flames out pretty quickly (in a few months). The blogger may run out of ideas for new posts, or find that blogging takes more time than expected, or something else. Either way, the blog quickly becomes orphaned.

The other main outcome is that the blogger becomes successful. As a result, the blogger garners some attention for his/her blogging, which generates more demand for the blogger's attention that predictably increases the blogger's workload--more speaking invites, more invitations to write elsewhere, more press calls, more prospective client calls, etc. This is a successful and usually desirable consequence of blogging, but inevitably the increased demands have the collateral effect of cutting into blogging time, meaning that the successful blogger progressively reduces the overall quantity of blogging. Accordingly, some of my longtime blogging favorites from 2005 and 2006 have effectively stopped blogging or are blogging very, very infrequently. I saw very few bloggers from 2005 and 2006 who blog as much today as they did in 2005-06.

Blawger burnout seems like a perfect topic for our next gathering of the Bay Area Blawgers. In January, I'll send out more information about our fourth gathering.

I've been using Twitter more and more. It's another reason why blogging at this blog has sagged in the past year. Some of the ideas I might have posted here are instead ending up at Twitter, which is quicker and easier than posting here. Plus, now that I've tied together Twitter and Facebook so that my Twitter posts also publish as my Facebook status, I might have a bigger audience at Twitter/Facebook than I do here.

I still haven't quite figured out when I want to follow people at Twitter. I do check the Twitter feed a few times a day, but I can get overwhelmed when I follow someone who is tweeting his/her life. So, after trying a few different combinations, I pruned my list of people I'm following down to a fairly small number. Reflecting on this group, I've noticed that all but 2 of them are people I've known for a decade or more. (The other 2 are blogging buddies that I frequently connect with). This is in contrast with Facebook or LinkedIn, where my friending standards are much more inclusive. It turns out that for Twitter, I've implicitly decided to track only a fairly small sphere of my broader social network. There may be a research paper on the topic of how and why people decide to define their social networks differently in different social networking sites.

When I was looking into people who had Twitter accounts, I was surprised by the number of my friends who had invitation-only Twitter accounts (i.e., their tweets aren't public; you need permission to see them). Even if I wanted to do so, I feel somewhat forward asking to join this inner circle unless they are a really, really close friend. (Otherwise, it's like I may be intruding into a private conversation where I may not be welcome). So the protection system acts as another psychological barrier to following friends.

I've used Bloglines as my RSS reader for almost 4 years. Bloglines has become an essential part of my daily routine. In general, whenever I log into the computer at work, I keep three windows open all the time--my school email account (on GroupWise--don't get me started), my main email account (Gmail), and Bloglines. As a result, I interact with Bloglines dozens of times per day. Among other things, Bloglines is my main source of online news and events (more so than email alerts or going to individual websites). It's also my main blogging resource--it's how I read other blogs and usually decide what material to blog myself.

Bloglines has never been perfect, but for the most part, I've been a satisfied customer. Indeed, I've personally evangelized Bloglines to at least a dozen other folks over the years, such as my wife, who now uses it religiously to read vegan blogs and Cute Overload.

However, I've hit my limit with Bloglines. Among my gripes with Bloglines is that it randomly and mysteriously drops some subscriptions without announcing it. All of the sudden, I'm unsubscribed. I don't always notice, and being surreptitiously dropped is annoying. But the last straw is that for the past week or more, Bloglines simply has not updated about 15% of my subscriptions. It's offered no explanation for the problem (or even identified that there is a problem) and I haven't been able to develop a workaround. This simply doesn't work for me. I carefully manage my list of subscriptions, so when a sizable chunk of them aren't updating, I'm operating with a big blind spot. Uncool.

As a result, I've decided to cut over to Google Reader. I can already tell that there are some oddities of Google Reader that I will have to cope with (for example, the AP feeds don't work very well). However, as far as I can tell, it's way more stable than Bloglines.

So many thanks for a great 4 years, Bloglines. I've enjoyed the ride, but I am moving on.

Bloggers have a new insurance option. The CMLP writeup. This is a huge step in the right direction, and kudos to all involved for spearheading the effort. Even so, I'm hoping that some marketplace competition will help drive down the cost such that it becomes a no-brainer decision for every active blogger.

In particular, I still think the major blog service providers like Six Apart or Blogger should obtain a group insurance plan for all of their customers. From my outsider's perspective, it seems like these companies could put together a ready-made market for a forward-thinking insurance company.

I was horrified to see how blogging has dropped off at this blog. It's odd because I really do enjoy blogging and wish I had more time in my schedule for it. The last 6 months have been very busy and I have to prioritize. I find that this blog suffers the most for it. I'm not going to promise to do better because I'm not sure I can keep that promise, but I do hope I will find more time.

However, there may be another dynamic at work. I have mentioned before that I aggressively prune my blogroll from time to time. Recently I did another purge and dropped several blogs that I had subscribed to for a long time (2 or more years). In some cases the blogs had changed--new co-bloggers who were diluting the posts of interest, or a dropoff in blogging activity (much like my own). In other cases, it was simply a recognition that I wasn't getting as much from the blog as I used to, and I am aggressively trying to skinny up the amount of time I spend in Bloglines to free up time elsewhere.

Perhaps the purge may have gone too far, because I'm finding less things in my Bloglines account that I feel compelled to blog. It seems like there is a magic mix of RSS subscriptions that yields a steady diet of bloggable items. Too many subscriptions, and I drown in infoglut. Too few subscriptions, or the wrong mix of subscriptions, and I find less blogging inspiration. I fear my last purge screwed up the secret sauce, and now I'm trying to figure out how to get my Bloglines mojo back.

Congratulations to my former colleagues at Marquette for the launch of the Marquette University Law School Faculty Blog, which looks like it is off to a promising start.

Blue Bell Creameries, L.P. v. Denali Co., LLC, 2008 WL 2965655 (S.D. Tex. July 31, 2008)

In a trademark infringement lawsuit over whether "Mooo Tracks" ice cream infringes "Moose Track" ice cream, the plaintiff tried to introduce some blog posts as evidence of consumer confusion. The court says no for fear that they are shill postings:

In this case, Denali offered Internet blog entries as evidence of actual confusion. The Court declines to consider these postings in reaching its decision. The Court is concerned, on this record, that the blog entries lack sufficient indicia of reliability.FN4 Nothing is known about the persons who made the entries, about whether they are related in any way to either party or whether they are describing true events and impressions. Moreover, the authors' meaning and the import of the blog entries are far from clear.

FN4. This should not be construed as a ruling by the Court that entries on Internet blogs could not, on a different record, be reliable and admissible.

Recently, I have proliferated the online venues where I am publishing content. This blog post enumerates all of the various places I hang out online:

Technology & Marketing Law Blog. This is my main ongoing publication outlet. I try to post there about 15-20 times a month.

Goldman's Observations. Since you're here, you already know about this one! I post here when I have something to say that doesn't fit into the Technology & Marketing Law Blog. Typically, that's around 8-10 times a month.

Personal Website. I use this for archival storage and navigation-driven retrieval. Often, when I post something online there, I will blog about its availability. There's no other easy way to find out when new content is added there.

Epinions.com. I don't write new product reviews often. When I do, I will often double-post them here or at least post a link to the new review. I also occasionally post to TripAdvisor--same deal about cross-posting.

SSRN. SSRN always has the "canonical" and "final" version of my academic articles. I will always blog about a new SSRN posting.

InformIT. I occasionally publish articles there. Sometimes they are reposted to the blog.

Twitter. I've launched a Twitter account but I still don't know what to do with it.

Facebook and LinkedIn. If we're not already friends, send me an invitation (but see my friending policy below). Like Twitter, I'm still trying to figure out what to do with these sites. I probably still have accounts at Friendster and Orkut, but I haven't been to either site in ages.

My slinky store. I used Zlio to put together a slinky store. It's not been successful, but part of the problem is that Zlio doesn't carry enough slinky items to make a unique store.

YouTube. I launched a YouTube channel to post my Alaska videos. My wife's YouTube channel is a better source of videos of the kids.

Picture Sites. I've posted pictures both to Kodak Gallery and Flickr (co-opting my wife's Yahoo account).

Chat. I use AOL's IM (which very few people seem to use any more--email me if you want my IM screen name) and Gmail's Chat.

Others. I'm sure I have other digital hangouts, but if they didn't make this list, I'm probably not investing very much in them.

My Friending Policy

I'm pretty liberal about accepting friend invitations at Facebook and LinkedIn. However, there are two main reasons why I might decline or ignore a friend invitation:

1) If we have never met face-to-face, I may not accept your invitation. I've made a lot of friends through my online activities, and FTF isn't a prerequisite to friendship in my book. However, over my 3.5 years of blogging, I've found that eventually I cross paths with my virtual friends in physical space for some reason or another. I do have some Facebook and LinkedIn friends who I've never met, but that's a pretty small group.

2) If I don't recognize your name, then I probably won't accept your invitation. This doesn't mean that we won't become friends in the future, but we'll probably have to get to know each other first before I am ready to close the loop on a social networking site.

Just like my blogroll, I occasionally purge my friends list.

Last week, we had the third gathering of Bay Area Blawgers at UC Berkeley Law School. Over 2 dozen bloggers and friends convened to discuss topics of interest to legal bloggers [see list of attendees below]. Some photos from the event. This event was co-hosted by the Berkeley Center for Law & Technology, and a special thanks to them for their help (especially given that the event was scheduled at a very busy time for them).

This time, we started out with a short presentation by Mark Goldowitz on the application of California's anti-SLAPP law (California Code of Civil Procedure Sec. 425.16) to bloggers. The anti-SLAPP statute is a powerful defense tool that can result in the plaintiff paying attorneys fees. It also has certain procedural benefits for defendants, such as an automatic right of appeal for an unsuccessful anti-SLAPP motion. The statute is interesting to blawgers because it should apply to common activities by legal bloggers, such as blogging about lawsuits. Anti-SLAPP protection has been rarely applied to bloggers (we couldn't think of any cases around the table, but I had forgotten that the GTX v. Left case involved a blogger), but it looks like a powerful and important tool that bloggers--especially those actually facing a lawsuit--should keep in mind.

We talked about a variety of other issues, including how to respond to grousy/threatening emails from lawyers whose cases we're blogging about, bloggers posting C&D letters, rich content tools available for bloggers (including Redlasso and iMeem), and how courts are conceptualizing bloggers as journalists for various defenses to IP claims (such as how the blogger in the BidZirk case defeated a TM claim because of his role in producing news commentary). Next time, we'll try to talk about blawgers going on vacation or hiatus--a question on several attendees' minds as they have stopped blogging deliberately or implicitly. I'm also interested in how and why some bloggers (like me) write through multiple blogs. Good stuff for the next gathering, which I'm thinking will be early next year in the South Bay. If you aren't on the mail list and would like to be, let me know.

[Attendees at this event included: Tsan Abrahamson, Jerry Bame, Hudson Bair, Robert Barr, Bob Eisenbach, Cathy Gellis, Mark Goldowitz, Eric Goldman, Joe Gratz, Beth Grimm, Greg Haverkamp, Matt Holohan, Ethan Leib, Joe Mullin, Deborah Neville, Chris Peeples, Mark Perlman, Colin Samuels, Daniel Schulman, Jason Schultz, Tim Stanley, Colette Vogele, and Fred von Lohmann]

More resources related to the Bay Area Blawgers:

* Announcements of Bay Area Blawgers 1.0, 2.0 and 3.0.
* Recap of the first gathering. Beth Grimm has written an interesting meta-recap.
* Photos from the second gathering at Fenwick & West's San Francisco office. More photos.
* List of possible issues for a blawgers' discussion.
* Census of Bay Area Blawgers.

Brandt Goldstein, Lost in translation? Some brief notes on writing about law for the layperson. 52 N.Y.L. Sch. L. Rev. 373-385 (2007-08). This article provides an overview of the issues that arising when writing about legal topics for a non-legal audience--which, of course, is what many bloggers do. This article doesn't break a ton of new ground, but it provides an interesting contrast between the issues faced by mainstream journalists and legal bloggers.

Oh come on, not again. The NYT once again is trying to suggest that blogging kills bloggers. See the last time this topic came up. Hey NYT, I venture to say that working for the NY Times is, per capita, far more hazardous to one's health than blogging. Why don't you write THAT story?

Maybe I'm just a killjoy, but I don't think that bloggers' April Fools jokes are funny. I feel like we as bloggers have to work really hard to develop credibility, and the whole point of an April Fools joke is to abuse that credibility to get readers to buy into the implausibility of the gag. As a result of April Fools, the blogosphere is awash today with lots of not-credible information, and we as readers are struggling to sort truth from fiction. It makes for a tough blogging day.

I think the problem is especially acute with legal-related April Fools joke. The problem is that at this point, there are so many true stories of ridiculous legal claims and other tomfoolery that it's impossible now to disbelieve anything. In this respect, I'm reminded of the Coca-Cola advertising campaign where Coke executives were thinking about suing Coke Zero for "taste infringement." This is supposed to be funny--putatively, there isn't such a thing as "taste infringement," is there?--but in fact such a claim is hardly inconceivable and, if brought, would not be all that funny for the defendant or consumers generally. More generally, it's almost impossible to create a ridiculous enough fictional legal claim as the basis of an April Fools gag when reality far outstrips our wildest imagination.

So my recommendation to bloggers: if you want to keep me as a reader, don't abuse my trust with an April Fools gag. Rather, if you want to do something humorous, entertain me and your readers with the numerous real-life stories that are even more outrageous.

Today I received the following correspondence:
__

March 4, 2008

Via Regular and Certified Mail

Eric Goldman
Ericgoldman.org
Santa Clara University School of Law
500 El Camino Real
Santa Clara, CA 95053

Via E-Mail

Eric Goldman
Ericgoldman.org
egoldman@gmail.com

Re: WBG Builders

Dear Sir or Madam:

This office represents WBG Builders. Attached please find a print-out from Ericgoldman.org which references WBG Builders. We ask that you kindly remove your reference to WBG Builders in your posting. Please note that the article to which you link no longer exists and/or does not mention WBG Builders.

Very truly yours,
Nash Law Firm LLC

Alan A. Reuter, Esquire

Enc.
___

See the original post in question about WBG Builders (with link fixed). Notice that this letter was sent on official law firm stationery by regular mail, certified mail and email--same content, received 3 times (all in the span of about 1 hour, as it turns out). I imagine many recipients would find repeated delivery of a letter like this intimidating and would happily comply to avoid further interactions with a lawyer.

Also interesting is that the letter requests that I fix a dead link by removing references to WBG Builders. Huh? Even if the link is dead, there's no need to change the text. And as it turns out, it was easy enough to fix the link.

Instead, this approach suggests to me that perhaps WBG Builders is trying to do some reputation management and may not want consumers to know that it might sue them for saying things it doesn't like. But absolutely consumers should know this in forming their opinions about WBG Builders, and any effort to scrub the Net of undesirable WBG Builder references is both distressing and doomed to fail.

Today marks the three-year anniversary of my blogs. It has been an absolutely terrific ride, with about 1,200 posts and about 5.7M page views over the past three years. You can read some of the highlights and lowlights in my Blog Years-in-Review from 2005, 2006 and 2007. I am very grateful for your continued readership, especially long-time readers who have allocated a little piece of the past 3 years to reading the blog. You make it all worthwhile!

Over at LexBlog, I had a two-part interview about blogging and the role of blogs in legal scholarship. See parts 1 and 2.

Mark Hermann at the Drug & Device Law Blog celebrated his one year blogiversary with a retrospective on four lessons he learned about blogging:

1) "blogging — or, at a minimum, blogging about substantive legal issues — is hard." Eric's comment: personally, I find blogging is easy--much easier than writing a law review article. What's hard for me is finding the time to blog.

2) "blogging is personally satisfying."

3) "law firms, like law schools, are clueless about how to value blogs." Eric's comment: I certainly sympathize with this observation, but implicit in it is that there is a right method to value blogs and it's different from the valuation method we're using now. Personally, I haven't settled on a preferred valuation method, so it's hard to say we're getting it wrong right now.

4) "Blogging pays off." He follows up this observation with a specific example that rings true for me:

It pays off in part by being a self-fulfilling prophecy. Whether or not you know anything about drug and device products liability law, you appear to be an expert in that field as of the day you launch the "Drug and Device Law Blog." Impressed by your expertise, and hoping that you'll mention them online, complete strangers begin sending you e-mails containing unpublished decisions, creative ideas and endless other tidbits relating to drug and device law. Eventually, your blog becomes a clearinghouse for information about the subject it covers. By staking a claim to some online turf, you gradually come to dominate that turf and to become an insider on events in that field.

The law library has prepared this helpful list of blogs with a Santa Clara Law School affiliation.

The NYT speculates that perhaps the stress of blogging contributed to Om Malik's heart attack at age 41. (BTW, the article also does mention smoking, drinking, fatty foods and coffee). Yet another way that blogging is a major peril to society.

Back in April 2006, a first-rate group of law professor bloggers (and a few other bloggers) gathered for the Bloggership conference to discuss how blogs affected legal scholarship and our lives as law professors. My recap from the event. I thought the experience of meeting other bloggers face-to-face to discuss blog-related issues was so terrific that it inspired me to initiate a local variation, the Bay Area Blawger gatherings.

At the event, a number of the speakers discussed the disintermediation of law reviews by new electronic publishing tools such as SSRN, as well as the difficulty of dead trees publications to compete with the blogosphere's speed at disseminating commentary and digesting events. As if to reinforce the points, the Washington University Law Review has now published the collection of papers from the Bloggership conference, about a year-and-a-half after the event was held and the early drafts of the papers were published via SSRN. Paul Caron has helpfully posted a comprehensive index to the papers as published in the Washington University Law Review as well as links to a variety of other goodies related to the event. My paper on Co-Blogging, in its final published form, is here.

Earlier this week, I spent a ridiculous 3 hours perusing my blogroll accumulation from a single day of being offline. Too much! Today, the great blogroll purge--I trimmed my blogroll by about 30%, including a number of blogs I had subscribed to for well over 2 years. It's kind of like purging my contacts database of people I haven't been in touch with for a number of years--I may still have lots of positive goodwill towards these people, but it's time to face the facts about the future. In any case, I feel newly liberated by my streamlined blogroll. Now, we'll see if it actually frees up some time!

Last month I blogged about the AALS/National Law Journal event we hosted at SCU entitled "Blogging, Scholarship and the Bench and Bar." The National Law Journal published the transcript from the event (National Law Journal, Oct. 8, 2007 at 22). Law.com has the electronic copy if you are a registered user. Jessie Seyfer of the Recorder also published a brief recap.

UPDATE: You are now able to freely read excerpts from the event here.

On Monday, we held a panel discussion on campus entitled "Blogging, Scholarship and the Bench and Bar." Panelists included Paul Butler, Cindy Cohn, Judge Michael Hawkins, Larry Solum and myself, and the conversation was led by Nancy Rogers and Leigh Jones (a reporter at the National Law Journal). Larry Solum's brief recap. The conversation covered a number of topics, but the main threads were (1) how can blogs help lawyers and judges do their work?, and (2) how does blogging fit into the activities of law professors? We have posted the video online; see here (this video should be accessible for 30 days).

Before the event, I was given a few questions that I might be asked. The notes I prepared in anticipation of the panel:
_______

"How much time should a professor spend on blogging? When is it too much?"

• Assuming that a professor chooses to blog…
• Minimum amount of time: enough to ensure that the posts enhance the professor’s reputation.
- This means extra time to clean up first draft writing and, more importantly, doing verification/fact investigation to ensure accuracy
- For example, I don’t blog on a case/statute unless I’ve read the original source material. No way that I would rely on news reports or other bloggers’ characterizations
- Very uncool for bloggers to spread misinformation
- I also do a precedent check to ensure my comments are adding new incremental material rather than rehashing.
- So I rarely post in less than 1 hour; I have spent 10+ hours on some posts
• Maximum amount of time: such that blogging doesn’t interfere with professor’s other duties
- From my perspective, blogging doesn’t displace obligation to produce legal scholarship
- So if blogging is preventing me from contributing to scholarly discourse through more traditional format, then I’m spending too much time on it.
_______

"How can someone tell the difference between a good blog and a bad blog? How can the reader know if what's on a blog is accurate and truthful?"

• I try to avoid snap judgments about blogs I’m encountering for the first time
- I look at topical focus, length of time blogging, how regularly the blog is updated and if the posts look like they are adding new incremental material to the discussion.
- I also check external measures of popularity, like Technorati’s link count or Google PageRank
- When I find a topically relevant blog that looks like it has credibility and is being regularly maintained, I often add the blog to my RSS subscription list and “watch it” to see if I get new incremental and useful material from it. This also means that I regularly drop blogs from my RSS list.
• At the moment, I do not subscribe to any pseudonymous blogs.
- This is a matter of personal taste.
- For me, knowing the author’s identity is crucial to assessing the author’s credibility. I’ve also found that pseudonymous blogs tend to flame out quicker
- In many ways, my blog subscription list mirrors my social network—I tend to read blogs of people I’ve met offline and have developed trust in their expertise
_______

"What suggestions do you have regarding the format of law review articles that are drawn from your blogging experience?"

• Blogs offer quick publication, the ability to easily review cited sources, and often the ability of readers to interact with the author and other readers.
- Law reviews are already experimenting with similar offerings through online complements.
- However, law reviews are still trying to manage the community aspect. I’ve seen many journals with no comments; and others overrun by comment spammers and trolls—neither of which reflect well on the journal or make authors very happy
• The blogosphere’s quick publication cycles mean that new cases and statutes are digested very quickly.
- As a result, I think law reviews should categorically get out of the business of publishing case notes or recent updates unless they operate at blog speed.
- Otherwise, a law review has almost no chance of making any useful substantive contribution to the dialogue 12-18 months after a new case/statute when the blogs have already vetted the issue 12-18 hours after it occurred
• Law reviews also need to learn that publishing articles without additional marketing isn’t that useful for the journals or the authors.
- Therefore, each publication should be an event that sparks dialogue, which may require journals to more actively market new releases.
- Some journals have made limited progress on this front, but law reviews have a lot to learn from blogs about how to engage in bona fide conversations.
_______

"Law school gossip -- who has an offer from what law school, for example -- travels quickly on blogs. Has this been a positive or negative development on balance?"

• Blogs help form new communities that couldn’t exist in physical space
- For someone who doesn’t have physical access to information about law schools or law firms, blogs provide much needed access to very useful information
• However, “gossip blogs” can lead to unfortunate socialization
- Obsessing about every detail can lead to lots of efforts to improve relative positioning and make people feel like someone is always getting a better deal
- This can lead people to feel like they should be worrying about these details even if they otherwise wouldn’t care
- This is unfortunate, but it’s also the inevitable consequence of information democratization
• Blogs have also captured gossip that normally was ephemeral, but now this gossip is preserved forever and published to the world. Unfortunately, some of this gossip has had a greater detrimental effect than its off-line equivalent.
- Some of this gossip isn’t good, but it is inevitable, and I hope (over time) people will learn to better wield the power of publication
_______

I was also on deck to discuss gender disparities among bloggers--a topic I'm happy to defer to others. Cf. Dahlia Lithwick, who wrote that on the subject of the dearth of women opinion writers, men “are terrified to opine on the debate because the inquiry is so fraught with the possibility of career-terminating levels of politically correct blowback—à la Larry Summers—that they deem it better to hold their tongues and wait for the storm to pass.” In that vein, fortunately for me, this topic didn't arise in the panel discussion.

Yesterday, I noted that some bloggers are making a surprising amount of money. Today, we learn that the money going into blogs is coming at the expense of the mainstream media covering technology issues.

BusinessWeek estimates the earnings of some top bloggers. Some bloggers are earning surprisingly large amounts of cash from blogging. I can assure you I'm not!

The National Law Journal runs a glowing article on how law students have gotten jobs/offers from blogging. This is great to hear, and done properly a blog can turn a law student into a superstar while still in school. But as the article only hints at, blogs also have the potential to produce the directly opposite effect, as evidenced most recently by the AutoAdmit fiasco. I caution law students to consider both the upsides and downsides of blogging before entering the blogosphere.

This Washington Post article discusses how interview subjects are redefining their relationship with reporters:

The humble interview, the linchpin of journalism for centuries, is under assault....[I]n the digital age, some executives and commentators are saying they will respond only by e-mail, which allows them to post the entire exchange if they feel they have been misrepresented, truncated or otherwise disrespected. And some go further, saying, You want to know what I think? Read my blog.

Some observations:

1) I like email interviews with reporters because I think I generally express myself better in writing than babbling in real-time, plus reporters often can't keep up with my fast talking. However, sometimes phone interviews have a spontaneity that leads me to say more outrageous things than I would write, and in some cases phone interviews take less time than email interviews.

2) I still find it odd when reporters quote from a blog post without verifying authenticity, but I do love it when my blog is quoted with or without my permission: it takes no additional time on my part and I get extra credit for the work I've already done, plus usually my blog post says exactly what I wanted to say. (Even better is when the resulting story gives me a little link love). In fact, I'm a little surprised when reporters who read my blog post nevertheless want to conduct a separate phone interview to get my comments. Huh? (Believe it or not, this happens with some frequency).

3) Not infrequently, if I get two or more calls on a particular story and I haven't blogged it, I go ahead and write up a blog post recapping what I told those reporters. I can then direct future reporter inquiries to the post. If I conduct an email interview with a reporter, almost invariably my emailed remarks go up on my blog--not because I worry about misquoting, but simply because I want to recycle the work. (A blogger's credo: No good thought goes unblogged).

On Monday, SCU had a "thank you" lunch for professors and administrators who had media exposure this year. The formal program included three speakers: Ed Clendaniel, San Jose Mercury News opinion page writer; Dana Nachman, NBC 11 special projects producer; and myself.

Ed spoke about getting op-ed pieces published in a newspaper. He said that the Mercury News gets about 20,000 op-ed submissions a year for less than 1,000 publication spots--a <5% publication rate. His suggestions for improving the odds:
* "don't bore me"
* the editors can't do very much editing of pieces, so the articles should match the newspaper's style--relevant topic, evoke an emotional response (be compelling, express an opinion), have an insight
* be conversational and use anecdotes
* 650 word limit means 650 words!

Personally, I found the whole idea of op-eds a little anachronistic. I've written a few op-eds in my day, but my blog has effectively usurped that writing role for me. My blog may not have as big an audience as a major newspaper, but I get instant access to the conversation and complete control of my words. In the past, there used to be enhanced validation/credibility by getting an op-ed into a major paper, but I just don't feel that's too important (at least for me) any more.

Dana spoke about interviewing with TV reporters. She explained that a typical news story gets about 75 seconds of airtime, so most interviewers get 5-20 seconds of that. Unlike Ed, she said that TV reporters *don't like* anecdotes because they usually take too long and can't be aired. TV reporters also hate it when interviewees say "As I said before..." in the middle of a thought, because that thought can't be aired. To avoid this, TV reporters generally don't like chit-chatting about the story before the camera is rolling. She said that after the interviews, most reporters transcribe the interview, circle the useful soundbites and use the rest as background material for the story. She said that if an interviewee really wants to convey a particular message, the interviewee should just keep repeating it (but don't say "As I said before!").

I spoke about how blogs have helped increase my exposure to reporters in at least three ways:

1) Reporters routinely use search engines to find sources, so my blog acts as a "magnet" for attracting those reporters. In some cases, reporters will quote the blog directly without even speaking with me. Further, my blog lends some internal credibility to my authority as a source.

2) Blog readers act as a type of distributed referral network, regularly referring reporters to me.

3) Reporters may become subscribers to my blog, in which case they may regularly report on stories I write about and quote my blog/contact me for more quotes.

I also noted that, by participating in the blogosphere, I could get access to websites such as Slashdot and Digg where the visibility of being linked may rival or exceed the exposure from being quoted in the mainstream media Given the choice between a quote in the NY Times or a link from Slashdot, I'd likely take the Slashdot link!

I did sound a few cautionary notes about blogging for professors. It's time-consuming; not everyone has a blogging personality; and there are a variety of risks (legal, reputational, and ruffled feathers).

From ProBlogger:

"34 Reasons Why People Unsubscribe from RSS feeds:

[1] Too many posts (the post levels are too overwhelming)
[2] Infrequent Posting (or the blog is effectively dead)
[3] Partial Excerpts Feeds
[4] Blog Changes Focus (too much off topic posting)
[5] Too many posts that I see elsewhere (Redundant, Repeated or Recycled News)..."

This reinforces that there's a "sweet spot" of blog volume--not too much, not too little.

IMHO, last night's gathering of Bay Area Blawgers was a smashing success!

The Crowd

We had over 45 people show up at the event, exceeding our seating capacity! Typically, a fair number of lawyers who RSVP to an event don't show because of last-minute crises, etc. (This is especially true when there's no registration fee). Remarkably, all but a tiny handful of RSVPs actually showed up. I think this reflects bloggers' strong interest in meetups like this--we had attendees who fought a lot of traffic to make it from distant points, including SF, Marin and the Central Valley.

I was also struck by the bloggers' diversity. Just about every segment of the legal industry was represented: big firm lawyers, small firm lawyers, solo practitioners, in-house lawyers, government lawyers, non-profit lawyers, academics, law students, librarians/knowledge managers and legal reporters. Bloggers also covered a diverse range of topics/practice areas: we had a strong group of IP/tech bloggers, but we also had bloggers covering real estate law, immigration law, corporate law, unfair competition law, government law, professional responsibility, politics, legal humor and much more. Finally, we had all of the generations represented; we had lawyers with decades of experience and law students just starting their career.

Thus, this event cut across a lot of the normal divisions within the legal community, yet everyone had something to contribute, and people mingled freely. I can think of few other contexts where such a diverse group of lawyers (and legal-types) eagerly and easily interact with each other. Blogging truly does bring people together--in this case, people from many different backgrounds and walks of life. The main commonalities were (1) we went to law school, and (2) we blog. Apparently, that's enough commonality to form a solid community despite the many other differences.

One other point about the crowd. There's been a lot written about the dearth of women bloggers, a topic that regularly sparks blogwars. See, e.g., here, here (noting that 25% of law prof bloggers are women) and here/here (observing the phenomenon in political blogs). But last night, we had a terrific turnout of top-notch women bloggers. At least in the Bay Area, there's no obvious gender disparity.

The Discussion

In my introduction, I observed that blogging allows us to make virtual friends across the globe, so it’s a little ironic to meet physically, which by necessity limits attendance to people locally. This brings to mind the environmentalists’ 1970s mantra: “Think Globally, Act Locally.” Perhaps in the digital age, we might update that motto to: “Blog Globally, Meet Locally.”

During the discussion, we talked about why people blogged, the challenges that bloggers face, how bloggers develop their voice and strike a balance between personal and professional topics, how bloggers manage reader comments, some risk management issues (like liability for infringing comments), and how blogs may be affecting the development of the law. Although we had a formal discussion for almost 90 minutes, I felt like we barely scratched the surface of these topics, and there were many, many times I would have loved to ask follow-up questions and really explored someone's remark.

We ended up spending a surprising amount of time discussing blogs as an extension of a lawyer's identity and the obligations/challenges of owning one's words. We want freedom to express ourselves, but we also face a lot of constraints due to the possible implications of our words on our reputation or on third parties (such as our clients). Kim Kralowec was a perfect example, as she started out by blogging pseudonymously for a year before taking the cloak off. Then, she was reluctant to blog on defense-favorable cases given her plaintiff-side practice, but ultimately her firm's managing partner encouraged her to blog all sides.

As this indicates, many lawyers fear blogging because of possible future estoppel--i.e., lawyer takes position A on the blog, and then wants to argue contrary position B in the future for a client. On this point, Jason Schultz asked if anyone in the room had their blog cited against them by an adversary. His working theory is that adversaries may raise a lawyer's public statements against them, but that such citations rarely have any adverse consequence.

I had a personal experience with this. When I was being deposed as an expert witness, the opposing lawyer asked me about a post I had made to an email list. (The printout was actually garbled, but that's a different point). But, consistent with Jason's theory, this citation was inconsequential to my testimony or my credibility. In response to Jason's inquiry, John Steele also noted that he knew of 2 different law firms who had their client newsletters cited against them, but again it's not clear that those citations had any effect. So while blogging still has a theoretical risk of further adverse citation, we’re still looking for actual evidence of such adversity in practice.

However, I couldn't resist pointing out how I had been listed on a Rule 26 supplemental disclosure in the Bar/Bri litigation as a witness with potentially discoverable evidence because I had written a few general blog posts on the case.

Kurt Opsahl conducted 2 interesting surveys. First, he asked how many bloggers had filed a 512 OSP registration with the copyright office. No hands, although Mike Masnick from Techdirt said he was in the process of doing so. This result is consistent with my research on the OSP registration database last summer (see here), where I identified only about a dozen blogs that had filed registrations.

Second, Kurt asked how many bloggers had received a cease-and-desist letter. About 10 bloggers raised their hands. I raised my hand even though I don't think I've ever received a "true" cease-and-desist. I have gotten some nasty emails from litigants (typically plaintiffs) unhappy with my blogging on their case, but those rarely contain anything close to an implied legal threat.

However, I did have one situation that's close enough. In that case, a "reporter" (which I put in quotes for reasons that will be obvious in a moment) was surprised by my strong words in a post where I dissected an ill-conceived lawsuit. The reporter emailed me to ask if I thought my remarks were defamatory, and of course I replied that I thought not. This enterprising "reporter" then wrote a story about how bloggers can be irresponsible with their word choices, citing how a law professor (me) had written a blog post that could be defamatory. As part of this reporter's research, he called up the litigants in the deconstructed case and asked them "Hey, do you think Goldman defamed ya? And do you plan to do anything about that?" I think it's fair to insert a "hint hint" after those questions, and I'll let you form your own opinions about whether such questions are consistent with standard journalistic ethics. Then, to complete the campaign, the reporter submitted this story to Slashdot. Fortunately, when other bloggers with actual legal training weighed in, they all were as dismissive of the defamation characterization as I was. But it's never fun having people running around asking other people if they are planning to sue me!

One last point from the discussion: Cathy Gellis said that she went to law school in part to have a say in important matters. But then she realized that to have a say, she needed to speak up--which she now does via her blog. To me, this was one of the best justifications for blogging that I've heard.

Next Steps

At the event's end, I asked if there was sufficient interest in reconvening another gathering of Bay Area Blawgers, but I think the answer was already fairly obvious. It was absolutely terrific to meet people face-to-face, and we clearly have more things we could learn from each other. Therefore, the High Tech Law Institute plans to sponsor a second gathering of Bay Area Blawgers in Fall sometime. More details to come. If you didn't RSVP yes to the initial event, or if you're not on the list of Bay Area Blawgers, then I don't have you on the email list--please contact me and I'll add you.

Other Recaps

Blawg Review
Matt Cutts
Cathy Gellis
Matt Holohan
Kim Kralowec
Mary Minow
Kristie Prinz
John Steele
Supra

Other Blog-Related Resources

List of Bay Area Blawgers
Blawger Discussion Issues
My collection of blog law and blogging related materials

I compiled a list of Bay Area Blawgers. I welcome any updates or corrections.

A new research study from Yale suggests that outgoing links, even to competitors, builds traffic. The argument goes: outgoing links can help a blog's readers answer their informational needs, even if the content isn't originated at the linking blog. Therefore, blog readers will become more loyal to the blog even though they are being directed to competitors.

This argument sounds OK as a theoretical long run explanation, but I think there's another explanation for the value of ongoing links that has significantly more short-term currency. Many bloggers maintain vanity monitoring tools which notify them when another blogger links to their blog. An outgoing link triggers these notification tools. It's like sending the other bloggers an email, except that these notifications aren't blocked by spam filters. Therefore, outgoing links bring a blog to the attention of other bloggers, some of whom either establish reciprocal links immediately or become regular readers and start linking to the blog in the ordinary course of blogging.

HT: Kevin at LexBlog

One underwriter (rightly or wrongly) says that lawyer blogging would void its malpractice insurance coverage. I suspect this is one of those early overreactions to theoretical risks by an insurance carrier, and the insurance industry will wise up after a number of years of better understanding the (low) malpractice risk profile of blogging.

More by Kevin at LexBlog.

UPDATE: Kevin had a good exchange with Chubb, posted here. They've partially backtracked to say that they may not insure "advisory" blogs where law firms "offer advice," but informational blogs are OK. This makes sense, a little, in that lawyers would be ill-advised to render legal advice via a public blog, but I can't imagine many (any?) lawyers are doing that.

I've concluded my guest blogging stint at Concurring Opinions. A list of my posts there:

* Best and Worst Internet Laws
* Suggestions for Conference Organizers
* Real Estate Appraisals and Copyrighting Facts
* MySpace Sued for Facilitating Offline Sexual Assaults
* Curriculum Proliferation
* Favorite Holiday-Themed Cases
* A Guest Blogger's "Meta" Post About Guest Blogging

I'm helping to organize a roundtable discussion for blawgers (scheduled for March 28, 6-8pm at SCU--please email me if you're interested in coming). This got me thinking about topics I'd like to explore with other blawgers. My list:

General

* why do you blog?
* who is your intended audience?
* what is your favorite/most memorable blogging experience?
* how did you get into blogging?
* who are your favorite bloggers?
* what would do with your blog if you had more time?
* how would you characterize your blog voice/style?

Blogging Mechanics

* how are you dealing with comment/referral spam?
* what do you do to promote your blog?
* what are you using as a stats package?
* any luck with tools like Feedburner or a service that converts blog posts into an email alert?
* what's your philosophy for building/managing your blogroll?
* are there better ways to generate revenue than Google AdSense? Are you concerned about generating revenues from the blog?
* what are your experiences with podcasting and video?
* do you have any special tricks to sourcing content for your blog?

Risk Management

* are you getting any good business/referrals from the blog? How do you respond to requests for legal input from blog readers?
* how are you dealing with emails from litigants in the cases you blog about? (many of these emails want to relitigate the case via the blog)
* what are you doing to manage legal risk for comments, guest bloggers, joint bloggers? (recognizing that 47 USC 230 and other legal doctrines may limit liability here)
* what is your policy about taking down user comments? Accepting trackbacks?
* are you registering your copyrights? Should you? Have you registered as an OSP under 17 USC 512? Should you?
* how much research do you do before blogging on a topic? How much should you do?
* do you have insurance that covers your blogging? Does your malpractice insurance carrier care if you're blogging?

Professional Responsibilities

* what are law firm policies about attorney blogging? How do clients feel about blogging? Has a blog post been cited against you?
* what are the rules for company employees blogging, and are the rules different for in-house counsel (and should they be?)?
* are you concerned that blawging will be regulated as legal marketing?
* what disclosures do you make about your allegiances? What disclosures should be made?

If you have any other thoughts of topics you'd like to discuss, please email me.

I'm guest blogging this month at Concurring Opinions. You can find my posts here.

Back to the comment spam issue. I recalibrated the settings in Movable Type and opened up comments in April. Unbeknowst to me (and contrary to my configurations), MT put all of the comments in a moderation queue that wasn't obvious (at least, to me). I found this stash today and the picture wasn't pretty. I had a total of about 6,400 comment spam that queued up since mid-April (and I think MT auto-deleted about 1,000 more). I did a "quick" pass (took about 2 hours) through this queue and came up with about 45 legitimate comments, or well less than 1%. So, what do you think--should I close comments? Tighten them up further? (when I required authentication, I got numerous reports that the MT tools didn't work). Slog through this heavy spamfest for the nuggets? (many of the comments were terrific) I recalibrated the filters again and we'll see how that goes for a bit. But it may be that I'll have to take more drastic measures.

One last gripe. I still don't understand why MT doesn't do more to auto-kill comment spam. Here's a tip: if the comment contains the word "ringtone," KILL IT. MT should also allow comments to be sorted/filtered by score.

Comments are open on this post, but if you don't get scored as "not spam," watch out! If the comment gets buried in the comment spam pile, all hope may be lost...

At the Bloggership conference, a few of us discussed tools to track citations to our blogs or articles. It quickly became apparent that I ranked high on the vanity-o-meter due to my extensive knowledge on this topic. So, at the risk of publicly confirming my vanity, this post discusses some of the vanity monitoring tools that I use:

Blog Rankings

* Technorati. Technorati is notorious for having rankings that are out-of-date and for randomly failing to count links it knows about, but it's still a very large and useful database.
* Alexa. Alexa generates its data based on people who use its toolbar; but my understanding is that marketing types are the principal users of the toolbar (because they are trying to get this data). So I'm not sure if the rankings are very reliable.
* PubSub. They offer a daily RSS feed.
* BlogShares. I don't totally understand this site. It tries to establish a trading market for blogs, so in theory it's possible to compare market values of blogs. However, its link calculations are woefully incomplete, and I don't understand how it calculates the market value. I use it mostly to see if it picked up inlinks that other sites missed.
* Kinja. Another aggregation of stats.
* MarketLeap. This site allows searches on the number of in-links from various search engines. I don't find it all that valuable.

I know a lot of bloggers use The Truth Laid Bear, but I can't figure out this site or how to get ranked by it.

Another blog ranking service, of sorts, is Google's PageRank. I use Google's toolbar, so I see the PageRank for every site I visit.

Blog Citation Alerts

* Technorati. I have Technorati alerts set up on my name and my blog URLs. This gets delivered via RSS. I find that this RSS feed in Bloglines is inoperable a lot.
* Google Blog Search. Google allows you to set up an RSS feed for search terms. This has worked pretty well for me.
* BlogPulse. This tool is pretty flaky, buyt it does offer an RSS feed.
* Talk Digger. A meta search engine that combines results from a variety of sources. The searches can sometimes produce some interesting results.

General Citations

* Google News alerts. I've set up an automatic search in Google News for "Eric Goldman" and some of my article titles. These results are delivered via an RSS feed. Unfortunately, this RSS feed doesn't do a good job screening out past results, so I get identical results every time I access Bloglines.
* Westlaw Westclip and Lexis Alerts. I have alerts set up for my name and my articles in the law journal and news databases (as well as some KeyCite alerts set up for my articles). These results are emailed to me.

Google supports alerts from its main organic database (in addition to its news and blog search databases). I've tried setting up alerts there as well, but I've had little success with this.

Please email me or comment if I've missed a good tool. Please do NOT email me telling me to get a life or to bash my obsessive navel-gazing (I know).

Regular readers may recall that I've occasionally blogged about the Bar/Bri antitrust lawsuits. See, e.g., here and here and here and here. (And, FWIW, there's now another one: Park v. Thomson Corp. in the SDNY). I was also quoted in an article on the lawsuit. And, a dozen years ago, I was a Bar/Bri customer.

That pretty much describes my total universe of interactions with Bar/Bri in my lifetime. So you can imagine my surprise when I got a call from the law firm of Shearman and Sterling, an old-line NY firm that is one of the biggest, most prestigious and most expensive law firms in the country. They also happen to defend Bar/Bri. They informed me that my name had appeared on a Rule 26 supplemental disclosure filed by the plaintiff, flagging me as a party that may have potentially discoverable evidence. They were calling to try to figure out why I was on the list.

I'm trying to figure out the same thing! I think it's a little odd to show up on a witness list like this without being contacted first. And I REALLY don't want to be a witness in this case. So now I'm in the awkward position of scrambling to proclaim my incompetence. All I did was blog a few posts and give a reporter some quotes; that doesn't actually mean that I know anything!

More generally, this incident suggests a new hazard of blogging about pending lawsuits--litigants may try to drag the blogger into the suit as a witness. Good to know...

If you're interested in blog law, you might check out my paper called "Co-Blogging Law." In it, I discuss the legal implications of joint/group blogging and guest blogging. I wrote this paper for the Bloggership Symposium at Harvard Law School; read more about that event here. The paper 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

The blogosphere is starting to generate comments about the article. See:
* Done With Mirrors
* Truth on the Market

It appears that the new status symbol for moms is a baby blog. Two examples from our friends Alex and Lara and Erin and Josh. My wife reads them regularly. But she doesn't read my blogs, which (I must confess) is a little tough on the ego. When cornered, her first response: "I don't know where your blogs are located." (Try Googling "eric goldman blog" or looking at the signature line of every email I send). Quickly recognizing the weakness of that retort, she went for the jugular: "I'd read your blogs if you wrote about something interesting." Other people's babies = interesting; husband's own writing = not!

Congratulations to my colleague Jason Czarnezki on the launch of his new blog, the Empirical Legal Studies blog. According to its first post, "the ELS blog will advance productive and interdisciplinary discourse among empirical legal scholars." Good luck!

I get a surprising and steadily increasing flow of emails related to my blogs. Just today, I got the following emails:

* an email from an attorney working on a case I blogged about, wanting to clarify the case. I actually get several of these types of emails a week; it's interesting how many litigators Google their cases to see what people are saying about them. (I swapped emails with her and ended up posting an addition to my blog post)
* a cryptic email from some company that helps mobile phone users read blogs, asking if they could offer my blog to their subscribers. (I didn't understand the request, but I said yes so long as I could change my mind)
* an email from a blogger notifying me that he had posted on a topic of putative interest, with the implied request that I link to the post (I did check out the post, but I'm not going to link to it; others appear to have gotten the same message and have already promoted his site)
* an email from an undergraduate who was sued by the RIAA and who is now trying to recoup his settlement payment through a donations website. The email asked me for a link (I told him good luck on his endeavors)
* an email from a former student saying that he had perused my blog and had a follow-up question about a legal point (I pointed him to a speech outline on my website that answered his question)

Whew! I've never been so popular in my life. And I didn't even get any PR contacts today, but I get those pretty regularly now.

As I've said before, my blogs are pretty small-potatoes as blogs go. So if I'm seeing this type of inflow, I shudder to imagine what real bloggers get.

I reviewed a recent report called Public RelationSHIPS: Communications in the Age of Personal Media. The methodology is a little suspect because people self-selected to participate, but a few interesting tidbits from the survey:

Why do bloggers blog? According to the survey:

34% = establish themselves as an authority in their field
32% = create a record of their thoughts [I'm surprised that a third of bloggers recognize this benefit--it often gets overlooked]
20% = "connecting with others"

Contacts with PR Agencies. "Nearly half of all bloggers (48%) reported never having contact with companies or their public relations representatives." (A methodology note reflects some inter-question inconsistencies on this point, but in ways that don't affect my comment). So, by inference, a majority of bloggers have been contacted by PR agencies...? If so, I'm shocked by how many bloggers are getting PR contacts--there are so many bloggers out there, and a lot of them don't have a whole lot of traffic. It appears that buzz marketing is growing, and PR agencies are treating blogs--even relatively small blogs--as a major publicity enterprise.

How Bloggers Correct Errors. I think bloggers generally struggle with the best way to correct errors. According to the survey, bloggers correct errors as follows:

39% = strikethrough error and correct
25% = create new post with new information
24% = remove post
6% = leave error but add correction
5% = leave error but rely on comments to correct
2% = leave post as is

I never make errors, but if the inconceivable happened, I generally add updates to my post. If there were new developments, I may add an entirely new post as well (with cross-links between the posts).

Conclusion. The report's conclusion: "The survey results and anecdotes demonstrate that online community members welcome involving company representatives into “the conversation,” as long as their interaction with them is truly participatory and honest—that it benefits both sides."

I think that's generally right. I always welcome emails about my blogs and suggestions of things I should look at, even if I blog on those suggestions fairly infrequently. If the person emailing me the tip has some skin in the game, I'd welcome the open disclosure of that--however, I don't view such disclosures as essential because I'm skeptical about the motivations of all unsolicited email suggestions I get.

I left for California very early Monday morning. Since then, I got hit by hundreds of automated comment spams, including an incredible 225 on a single blog post (on why Wikipedia will fail in 5 years) in a 3 day period. I'm pretty frustrated that Movable Type appears to do little or nothing to control the automated submissions; it seems like it would be pretty easy for Movable Type to figure out that a comment spammer is in action. In any case, I've had to put "shields up" on comments to fend off the spammers. Sorry for the extra hassle.

One more thing while I'm grousing about blog spam. Movable Type also appears to do little or nothing to control referral spam. I've never fully understand the value of referral spam, but I get a fair amount of it. It's annoying because it distorts my statistics. It would be great if Movable Type gave me a tool to let me designate something as referral spam, at which point Movable Type would completely ignore the referral from all of my statistics now and in the future.

I know there are plenty of unresolved issues about whether bloggers are journalists. Where ever you come out on that question, consider the following. I've been receiving a noticeable increase in personalized spam in the form of press releases and other marketing announcements. Last week, I even got a call from a PR agency asking if I had received a book they had sent for my review (I hadn't; they are sending another copy).

Clearly, the PR agencies view bloggers as potential influencers, just like other forms of media. Perhaps this just another manifestation of the latest fad called "buzz marketing."

Ironically, my blogs are pretty mom-and-pop as blogs go. As far as I know, I don't crack the top 1,000 blogs on any blog ranking list (and, probably, more accurately, I don't crack the top 10,000). So if the PR people are calling me, they must view blog exposure as valuable enough to chase down comparatively low-traffic/low-market-share blogs.

I've also noticed that the PR contacts/press releases have been pretty tightly focused on marketing issues. This isn't to say that they have been interesting, but the relevance is significantly higher than the average spam I get.

I am going to blog occasionally at the ContractsProf blog. My first post is about teaching Stambovsky v. Ackley, the haunted house case.

This is the third of a three part series about blogging based on my presentation at a Minnesota IP CLE in September. Today's question: assuming that you want to get into blogging, how should you get started?

I have a single succinct response to this question: start out as a guest blogger somewhere. Don't try to start up a blog from scratch on your own, at least not as a first-time blogger. Let me make my case to you why it's better to start as a guest blogger:

1) Blogging has high start-up costs. There are various start-up costs to blogging, including:

* picking the right vendor
* configuring the blog
* generating enough content to be noticed. In this respect, blogging is like a flywheel--you need to crank hard in the beginning to get the wheel turning. You can ease off a bit after the blog is established, but a strong and steady stream of posts in the beginning is critical to building the blog and its readership
* marketing the blog

Meanwhile, by joining an existing blog, there are zero start-up costs--someone has already incurred those for you.

2) Develop your blogging skills and preferences before you commit. By blogging somewhere else, you can learn what you like and don't like about various blog vendors. Switching after the blog is up is far more difficult than picking right from the beginning.

You can also develop your blogging voice. I stand behind all of my posts, but some of my early posts were, frankly, a little goofy, and there are definitely some posts I would handle differently now. It took me a while to establish my norms for what's blog-worthy and how best to present that information. In the context of a multi-person blog, you'll have some role models to emulate and some mentors to coach you.

Finally, as a guest, you can get a sense of the actual time it takes to blog on an ongoing basis. It's easy to underestimate this time, which is why I think so many blogs quickly fail. You can assess this time commitment without incurring start-up or wind-down costs.

3) Built-in readership. By joining an existing blog, you get access to an existing audience--readers on day 1. If you decide to launch your own blog or move to another blog, some of those readers will follow you.

You also get the blog's existing Google PageRank for search engine traffic. It takes some time for Google to assign a rank to a new blog, so your posts probably will get better search engine traffic by being at a site with existing PageRank. Further, if your co-blogger(s) has a good reputation generally, you can get the branding benefit of associating with their brand.

4) No wind-down costs. I think one of the best reasons to blog is to build a personal brand. Thus, you don't want to do anything with your blog that may undermine your brand.

Personally, I think there can be negative brand implications from stopping a blog mid-stream. (It depends on the circumstances, but there can be a taint to stopping an existing blog). In contrast, if you're a guest blogger, and you decide not to continue, there's no taint--by definition, the guest stint can be time-limited, so there's no consequence to letting the stint lapse.

How Do I Find a Guest Stint?

If you have good personal relationships with bloggers, just approach them. But if you don't, you might consider approaching some of your favorite bloggers and asking about an arrangement. Many bloggers are looking for good guest bloggers as a way to add diversity to the blog (and maybe lighten their writing load), so bloggers may be more receptive than you think.

[Note: I recognize that some of this post could be read as an implied request or encouragement to approach me for a guest blogging stint. That's not my intent. This blog tends to be fairly personal, so for now I don't plan to add other bloggers to this one. My other blog does have some guests, but I'm not sure how many more guests I'd like to add.]

Conclusion

Increasingly, we're seeing multi-person blogs, blog mergers and other consolidations. There are good reasons for consolidation: it's hard to bear the writing and operational responsibility of being a single-person blogger, a diversity of views makes the blog more interesting, and having multiple people marketing the blog tends to increase traffic for the blog across-the-board. As a result, I think the days of single-person blogs are coming to an end.

In my case, I wouldn't be a bit surprised to see this blog (or my other blog) roll up into a larger structure in the future. I like blogging, but I also think there is such strength in numbers that I'll be better off combining my talents with others. Stated in another way, based on 9 months of solo blogging experience, if I had to do it all over again I would start out in a group blog rather than on my own.

One final thought: if you do decide to invest long-term in a joint blogger as an equal participant, make sure you lay out a deal with your joint bloggers in advance. Hope for the best, but prepare for the worst.

This post is part of a three-part series:
Part 1 of 3: How I decide which blogs to read?
Part 2 of 3: Should I blog?
Part 3 of 3: If I decide I want to blog, how do I get started?

This is the second of a three part series about blogging based on my presentation at a Minnesota IP CLE last month. Today's question: should I blog?

The answer is purely based on cost-benefit. What does blogging cost, and what are its benefits? Let me recap some of the advantages and costs of blogging:

Advantages:

1) Blogging helps build a personal brand. Blogging is a form of content production, and content is the best form of marketing. Blogging allows me to demonstrate my expertise, either through my words or through my sheer repetition on a particular topic. Personal brand-building creates all kinds of opportunities for academic pursuits, policy-making and, in some cases, profit.

2) Blogging allows me to learn a little more about who is reading my work. Bloggers tend to be pretty stat-obsessed, and our desire for information about our readers is generally unfulfilled through most traditional media. Even electronic publishing tools like SSRN, which give us some download counts, don't give any insights beyond the raw download numbers.

With blogging, I can see all kinds of stats about my readers--where they are located geographically, who is linking to my work, what pages are popular. All of this gives helpful feedback to me as a writer, and incidentally allows for much better quantitative benchmarking of success.

3) Blogging is a way of organizing data for my own future retrieval. For example, for the last 2 years, John Ottaviani and I have published a list of the top 10 cyberlaw/IP cases of the prior year. With the blog, it's very easy to see what I've blogged about and pick the top cases from that.

4) Blogging is fun. I like to write and I have a lot to say (or, at least, I think I do). Having a platform to weigh in with my thoughts about issues is rewarding and enjoyable. Not everyone likes to write, and not everyone finds it fun. I do.

5) Blogging can generate revenues. I wouldn't say it's profitable, but still, there can be cash from blogging.

Disadvantages:

1) Blogs are very time-consuming. It's tempting to think that blogging is strictly about posting new content, but that's only a modest fraction of the work. In addition to generating new content, the time requirements include:

* setting up the blog's infrastructure
* maintaining the infrastructure
* responding to public comments and private emails
* dealing with trackback and comment spam (if you enable to those features)
* marketing the blog to build readership (getting indexed, emailing other bloggers to let them know of a posting)
* lining up guests (if applicable)

In addition, many bloggers choose to subscribe a wide variety of other blogs so that they can feel like part of the conversation. And many bloggers also obsess about the stats. While neither of these is required for blogging, these activities also take a significant amount of time.

2) I have all of the legal risks of being a publisher, including the risk of being sued for copyright infringement, defamation, etc.

3) I have non-legal risks from publishing content. In my case, I have the risk that my blog could be held against me for tenure, promotion or compensation purposes. In a typical lawyer case, a lawyer may have limits on their ability to blog about client matters, either expressly under the Rules of Professional Conduct or implicitly under concerns about strategic conflicts (i.e., ticking off an important client). Certainly any public position I take on the blog has the risk of being cited back against me in future negotiations or evaluations. And, to the extent that I try to work quickly, many of my blog posts lack the same degree of polish as other publications; but increasing their precision also increases my time investment.

Net conclusion:

Whether the time invested in blogging justifies the benefits is a question that can be answered only by each person looking at their situation. However, there's no question that blogging can be very beneficial. There's also no question that those benefits come at a significant opportunity cost--in the latter case, blogging can come at the expense of time that could be spent writing articles, speaking, networking, playing with the kids or doing a hobby. Is blogging the best allocation of that time? Before you begin, make sure it’s worth it.

In the next part, I'll talk about how to get started if you decide to join in the fun.

This post is part of a three-part series:
Part 1 of 3: How I decide which blogs to read?
Part 2 of 3: Should I blog?
Part 3 of 3: If I decide I want to blog, how do I get started?

Last month, I gave a talk at a Minnesota CLE program about law blogging (along with Marty Schwimmer of Trademark Blog and John Welch of TTABlog). We discussed some rather basic points, like:

* what is a blog? (Answer: just another form of electronic-mediated human communication, with certain structural conventions/norms like putting the latest posting at the top of a page)

* how should I read blogs? (Answer: use an aggregator, either a client-side aggregator like SharpReader or a web service like Bloglines...forget bookmarking or trying to sign up by email).

I'm going to discuss some additional points from the presentation in a three-part series. Today's topic: how I pick blogs to read. I use the following criteria to decide if I'm going to add a blog to my aggregator:

Topical Relevance

This is the most important factor--am I interested in the blog's topical focus? I have tightly defined interests, and my subscriptions hew to those interests pretty closely.

I know that many "general interest" and topically-expansive blogs are popular, but not with me. I subscribe to a few, but usually there's a personal relationship behind that subscription. A little topical diversity is fine, but too much diffuseness and the signal-to-noise ratio gets out of whack. Also, I avoid blogs where the blogger is a troll for controversy. Life's too short.

Recency of Updating

I don't expect blogs to update daily, but I usually avoid (or drop) dormant blogs. If the blogger hasn't blogged in a few months, I figure the blogger is out of business.

Author Identity

A number of my subscriptions are attributable to some out-of-the-blogosphere personal relationship. In many cases, the blog becomes part of our relationship, and we might communicate via blog posts, email or offline. At the same time, as I've explained earlier, I rarely subscribe to anonymous blogs. I need to know the blogger's life experiences and biases before I can give them full credibility.

Volume of Posts

There can be too much of a good thing. High-volume blogs are tough to keep up with.

Post Uniqueness

There are several styles of blogs:

* personal diaries
* clipping services (i.e., links to news reports with little commentary)
* policy rants
* commentary on recent developments
* true news reporting (some blogs break news)

I tend not to be interested in personal diaries (unless the blogger is a close friend) or policy rants (especially political ones).

I do subscribe to some clipping services, but only if I think the person is monitoring sources I wouldn't otherwise track. At this point, when something interesting happens, I usually see multiple blog posts through redundant sources, so I definitely don't need more of the same.

I like blogs that provide some personalized commentary on recent developments. I think of these blogs as a way of capturing the word of mouth--"hey, X just lost a lawsuit, what do you think?"

I also like blogs that break news or originate content. At this level, it's hard to distinguish blogs from traditional news media.

If you're interested, my blogroll.

This post is part of a three-part series:
Part 1 of 3: How I decide which blogs to read?
Part 2 of 3: Should I blog?
Part 3 of 3: If I decide I want to blog, how do I get started?

Marianna Moss is a friend (as well as the wife of my colleague Scott). She and some of her colleagues are running an interesting blog about working mothers that I recommend you check out if you're in the target audience. Keep up the great work, Marianna!

A study reveals that "51% of journalists consult blogs for story ideas while 28% of them relied on blogs to provide them with day-to-day information," numbers that are well above-average for blog usage by the general population.

My own experience on this front may be revealing. I've been called about a dozen times by reporters who found me because of my blog posts on a topic related to their story. And, about a half-dozen times, reporters have "quoted" me by lifting statements from my blog without speaking with me or confirming the quote. I don't mind this but, given the number of spoof blogs (like the fake Harriett Miers blog), I'd like to think that reporters would be reluctant to pull content off the Internet without validation.

I'm giving a talk next week to lawyers about participating in the blogosphere, and this has been a good opportunity for me to think about how I choose blogs to read. In looking over my blogroll, I realized that I had almost no anonymously-authored blogs on it--Cracker of an Issue and Law on Caffeine are the only two that I can recall (and I know who writes Law on Caffeine).

I've been trying to isolate why anonymous blogs don't make my blogroll. I can offer 2 possible (and overlapping) reasons:

1) Part of my decision to add blogs is based on the credibility of the author. If I can't determine the author, then I can't gauge the appropriate level of credibility to give the blog.

In this respect, it prompts me to think of Ender's Game, where a young punk was able to change the world through prolific pseudonymous postings. In theory, it's possible for words alone to be compelling enough to subscribe to them, but that's a very rare feat. Indeed, a number of blogs I subscribe to solely because I've grown to know and respect the author from offline contacts.

2) I think there may be a cause-effect between the motivations for retaining anonymity and the quality of the blog. Anecdotally, I've found that anonymous blogs tend to be lower-volume and to fizzle out more often/more rapidly. I don't know if the lack of attribution diminishes the incentives, or if the motivations for anonymity affect the ability to produce blog content. Whatever the case, I've found that anonymous blogs rarely pay off the reader as much as attributed blogs do.

So, a friendly tip to bloggers: if you want my readership, you should plan to stand behind your words!

UPDATE: Unused and Probably Unusable (an anonymous blog) has collected various postings about anonymous blogging.

Lydia Loren reminds her Cyberlaw students during the first class to sign up for an account on her blog. What happens? Students sign up right then and there--during class! (She knows because the account sign-ups are time-stamped). She wonders about the future: "Will my students be blogging my class during class?"

I think we all know the answer. Students engage in the full range of human activities during class--they sleep, they eat, they talk to others (especially over IM, although back in my day we used to pass notes), they play (especially computer games, although I was a crossword puzzle kind of guy myself), they flirt (not aware of that going further in class, although with cybersex, who knows?), they take care of administrative errands (in Lydia's case, signing up for accounts) and, yes, they probably even blog on all of the foregoing during class.

Frankly, of all of the foregoing activities, I think blogging about the class during class would be most consistent with my pedagogical goals. I'm happy any time a student does something a little extra with class-related material. But, no question, I'd also prefer if students could defer the blogging until after class. Personally, I've tried blogging on conferences real-time and I simply can't do it--I can't split my brain that way. Maybe my students are more skilled than I am, but if not, classroom-learning and blogging may be a zero sum game where one task wins at the other's expense.

Lydia's post is also a reminder that our activities in cyberspace leave data trails that others can notice and observe. In particular, this may be a reminder to students that we as professors are developing new ways to monitor your behavior. Personally, I'd love a to have digital avatar that could automatically detect a student engaging in an IM chat and insert a picture of my smiling face in the conversation saying "Hi! You might want to chat later. You've got some classroom learning to do first!" (Some of you may recall that the RIAA did something similar with P2P file sharers).

UPDATE: Gordon makes some similar observations about the attention pie problem. Then again, he blogs during faculty meetings...

Brian Leiter’s Leiter Reports is one of the most popular law professor blogs around. I’ve been a reader/subscriber for some time but always with mixed emotions. His blog contains the best gossip about the legal education community, but it is also heavily populated with lots of other topics that I have zero interest in. For a long time, I simply didn’t read his blog (too much noise to signal); later, I simply bookmarked his page on law school updates and checked that regularly; more recently, I added his entire blog to my RSS reader, but I quickly deleted any posts that didn’t relate to law school news.

Brian announced last week that he will be dividing his blog into two, moving the law school news into a separate blog. For me, this finally solves my problem—I can keep up with the gossip in my RSS reader but I don’t have to spend time sorting through the other posts.

If anything, I could have seen him go one step further and divide his blog into three. Brian straddles two academic disciplines (philosophy and law) and provides interesting gossip on each; in addition, he frequently posts commentary on news and politics of the day. Thus, I could have seen him divide his blog into three: a law school gossip blog, a philosophy gossip blog, and a commentary blog. There may be distinct audiences for each of those three topics.

Brian’s decision raises a difficult question: what is the best way for a blogger with diverse interests to organize a blog? There is no single right answer to this question. Each approach has its pros:

Pros of a single topically-diverse blog
· ease of administration and marketing (only one blog to maintain and promote)
· many diverse topics end up bleeding into each other
· readers like discovering new topics that they might not otherwise encounter
· readers can keep up with only so many blogs, so it’s tough to get them to follow multiple blogs (meaning that some readers who would be interested in a second blog just won’t try)

Pros of dividing blogs topically
· Audience segmentation. Each blog can optimize for the interests of its audience. Readers won’t be bombarded with repeated topics that they consider off-topic
· Perceived domain expertise. A narrowly-focused blog can be perceived as a leading blog on the topic. Off-topic postings in single blogs can dilute the strength of an otherwise-strong blog
· Easier to get guest-bloggers with topical expertise

When I decided to enter the blogosphere, I weighed my options. I knew that I was going to regularly post on my core substantive areas of interest (Cyberlaw, IP and marketing). However, I also knew I was going to post on the business of law, including legal ethics, the legal industry and the legal education industry. Plus, I had hoped to provide a forum for some of my personal interests, including in particular my interests in vegetarianism.

In the end, I decided to launch two blogs—the Technology and Marketing Law Blog and Goldman’s Observations. I think this decision has worked out OK so far, but it’s definitely not perfect. Traffic is significantly higher at the Technology and Marketing Law Blog than this blog, although this blog has had several of my all-time most popular posts.

I also occasionally wrestle with topic bleed. The most obvious example is my series of posts on the regulation of Internet hunting, which implicate both my interests in vegetarianism and Internet regulation. I’ve chosen to blog on the issue here, although I’m sure that many readers of my other blog would have been interested in the topic as well.

Nevertheless, I think the audience segmentation has worked pretty well. I think I’ve been able to get a good group of non-lawyer techies to read my other blog. I’m not sure that I could keep that audience happy if I kept pelting them with posts on legal ethics or vegetarianism. On this topic, I agree with Michael Madison.

Ironically, the solution to this organizational dilemma is technological: category-level RSS feeds. For example, if Brian had offered an RSS feed for just his law school news category from his existing blog, I would have happily subscribed to that rather than having to move with him to a new blog. In my case, I could have combined my blogs but offered category-level RSS feeds that would have been a good choice for readers whose interests overlap only a portion of mine. I don’t think that RSS is ubiquitous enough yet to make this technological solution a good substitute, but it seems like only a matter of time before we can offer single multi-topic blogs and still keep diverse audiences happy.

In this post, my colleague Christine Hurt explains her choice to run a single multi-topic blog called the Conglomerate. I like the Conglomerate a lot, but I’ve also hassled her (and Gordon) frequently when the signal-to-noise ratio gets out of whack (i.e., too many posts on cheese and movies to the exclusion of posts on substantive corporate law). Then again, I may not be in the sweet spot of their audience. I do disagree with her on one point though. She writes:

“Some bloggers have explained to me that folding in the other light-hearted stuff may get you more readers, but maybe not the serious readers you want. I'm not sure there's any kind of reader I don't want.”

I think this misses the point. A little levity/personal touch is always welcome. Too much levity/personal touch/off-topic postings becomes spam. When the balance gets out of whack, I drop a blog. When I visit a blog for the first time, and I can’t sense its topical focus or see that focus overly diluted, it has almost zero chance of getting into my RSS reader (that’s just me—I know other people feel differently). So the risk of off-topic postings (light and personal or otherwise) isn’t that you’ll get readers you don’t want—it’s that you’ll not get the readers you do want.

UPDATE: Victor Fleischer has some interesting thoughts about RSS and blog mergers.

There has been a recent proliferation of blogs with a connection to Marquette University Law School (I've noticed a spike in blog activity around final exam time--blogging is the quintessential way to procrastinate!). Here are the ones I know about:

Conglomerate (Prof. Christine Hurt is a co-blogger)
Rex Holmes’ Blog (Rex is a 3L and the “blogmaster” behind my blogs—thanks, Rex!)
Fsck Law (Matt Goeden is a 3L)
Law on Caffeine (not sure who is running this blog)

Then there are my two blogs:

Technology & Marketing Law Blog
Goldman’s Observations

If I missed any, please let me know so I can update.

UPDATE: I forgot to mention the MULS Federalists blog.