Dennis Kennedy

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April 04, 2006

How to Identify an Anonymous Blogger (Other Than by Litigation)

Marty Schwimmer pointed me today to an article called "How to Unmask and Anonymous Blogger."

I thought it would be a compilation of some of the practical "Internet detective" tips many people use these days to track down owners of websites, commenters and the like. Instead, it focused on subpoenas and other litigation techniques.

Where's the fun in that?

There are a whole set of techniques that can be used that may be more effective and certainly will be cheaper than the techniques mentioned in the article, which I see as last resorts to take if the practical techniques don't work. If you work from that premise, the article is a good one, but mis-titled.

For some good examples of practical tactics I referred to, do some exploring in the links from Doc Searls post "Tale of Whoa."

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Learn more about legal technology at Dennis Kennedy's Legal Technology Central page.

Technorati tags: technology law anonymity

Posted by dmk at 09:07 PM | Comments (0)

March 09, 2006

Blogging: The Safest Form of Employee Communication?

On the Between Lawyers group blog that I am a part of, we have had an ongoing discussion about corporate blogging policies and the related legal and other issues that arise when employees (and officers) blog. In part, our discussion has been a response to the "the sky will fall if you don't have a blog policy" marketing some law firms are doing these days.

I mention this because Denise Howell has posted "Blogs: Least Risky of All?" It's an an analysis of blogging as part of the overall communications channels that a business or organization might use. Denise concludes that blogging, properly understood, rather than being feared, might in fact be the least risky of all corporate communications channels. Her reasoning is compelling.

Let me quote a couple of key passages:

Specifically, of all the various communication tools available to employees, whether while on the job or off the job or both, blogging may actually be the least risky and most innocuous from a corporate risk management standpoint. Consider first that people commonly assume phone, email, cocktail party, and/or hallway discussions are invisible, transitory, and/or confidential. Any one of those situations is thus fairly likely to involve remarks that the speaker, rightly or wrongly, does not expect to come back to haunt them in a public way. Then consider the extent to which public blogs, podcasts, and similar tools are conceptually different from the get-go. The accessible nature of the information put out by these means is part of of the compact. Except in the limited case of behind-the-firewall blogging or podcasting, people using these tools are much more likely to comprehend that a broad audience is possible (usually, desired), and to tailor their communications accordingly.

Denise goes on to say:

Though there are a host of situations whereby an employee's blog, podcast, photo, or video clip could conceivably subject an employer to third party liability — inadvertent disclosure of confidential or regulated information; harassment, discrimination, or other civil rights violations; false advertising or other unfair competition concerns; and much more — not only are none of them unique to online communications, but it seems to me those using such methods would be almost certain to appreciate that what they're doing is not "private." Picture a world in which it was a newsworthy event every time someone was fired due to something said in an email or a hallway. Or every time company secrets were clandestinely or inadvertently shared over the phone or over drinks. You'd never hear about the dangers and pitfalls of blogging, because it would constitute such a small part of the overall "problem."

And, finally, to me, the key theme in all of these issues:

Unlike a great deal of the reporting I read about the dangers and pitfalls of blogging, I have a hard time isolating any primary legal problems that inevitably go along with employees using communication tools of any sort. Instead, the potential problems are a direct product of the extent to which clear expectations have been set, and the extent to which a particular employee is oblivious or doesn't care.

I was interviewed yesterday for an article on Internet use policies and used the occasion to make my usual point when I talk about these issues: Policies are good things, but, without proper emphasis on training and enforcement, they may do more harm than good. Also, when I hear people talking about "blogging policies" in isolation from "communications policies" or "technology use policies," I cringe.

When I discuss the "dangers" of blogging, I like to point out that under the standards people want to apply to new technologies, use of the telephone could never be adopted today - just think of the untold damage caused over the years by telephone calls.

So, check out Denise's post, in its entirety. I believe this post is a very important contribution to this debate and deserves much more attention.

While you are there, check out the other recent posts at Between Lawyers and you'll see why it's one of my favorite law-related blogs (although I may be a little biased).

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Like what you are reading? Check out the other blogs where I post - Between Lawyers (feed) and the LexThink Blog (feed).

Technorati tag: blogging policies

Posted by dmk at 04:32 PM | Comments (0)

February 06, 2006

What Happens to Blogs, Email and the Rest of Your Online Presence When You Die?

Scott Reeves (Forbes) has a good article called "What happens to your e-mail when you die?" that addresses some of the issues involving email, blogs, websites and the rest of your online empire that arise when you die. These issues will only continue to grow in importance.

Tax professor blogger Jim Maule and I were quoted in another good article on probate and estate planning issues we will increasingly be running into as we move to an Internet society. The article, by Susan Shor, is called "Digital Property and the Laws of Inheritance" Read it along with the Forbes article and you will get a good intro to these issues.

I like this quote from me that was used in the article:

If someone dies, there are a lot of people who should be notified. The fact that someone has died is very meaningful and a paper address book may not have closest friends. Those people who are known mainly through e-mail or online may wonder what happened. By the time things get sorted out, the funeral is long over, and it's too late.

Estate planning and probate law is another area of law in which the Internet is having some surprising consequences. If you have a significant online presence and intellectual property, you probably want to do some shopping around for a lawyer who understands the value of what you have and the implications of what must happen when you die to pass the value of what you have to your survivors.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Like what you are reading? Check out the other blogs where I post - Between Lawyers (feed) and the LexThink Blog (feed).bb

Posted by dmk at 05:24 PM | Comments (0)

January 22, 2006

How Do I Trace an Email?

Raven on Onimoto has posted a step-by-step explanation, with screen shots, that covers the basics of tracing the paths of emails back to their senders. You can run into the need to trace emails in any number of situations. Keep this helpful guide handy.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)

This post brought to you by Dennis Kennedy's half-day electronic discovery seminar - "Preparing for the New World of Electronic Discovery: Easing Your Transition from Paper to Electronic Discovery." Contact Dennis today for more information and to schedule a seminar for your firm or legal department.

Technorati tags: electronic discovery email tracing

Posted by dmk at 10:20 AM | Comments (0)

January 02, 2006

What is Contract Life Cycle Management and How Does it Fit into Legal Technology and Law 2.0 in 2006?

Michael Kraft and Robert Enholm, in their excellent "GC Tech Wish List for 2006," talk about contract life cycle management (CLCM) in terms of "applying technology to the contract process from letter of intent through negotiation and execution to performance, amendment and contract renewal." They also say, "The emergence of enterprise resource planning software over the past decade has helped businesses with "workflow" processes, and GCs are exploring how to apply these principles to the activities of corporate law departments." And CLCM is one good example.

In short, CLCM is about finding ways to look at the contracting process as a business workflow process that can be tuned in ways that benefit businesses rather than as a series of independent, unrelated legal projects.

It's a difference that, as they say, makes all the difference.

I've been thinking, off and on, about CLCM over the past few years, including most recently in some discussions I had involving a large company that wanted to get some control over a very ad hoc approach they had to generating first drafts of standard documents. The business case for CLCM is pretty easy to make.

When I think about contracts (or other legal documents) as part of a process, I invariably think about the potential role of document assembly.

I'm not surprised that Kraft and Enholm move in the same direction in their article. They say, "'document assembly software' is coming to be seen as merely one link in the chain of the contract management process. GCs must be alert to opportunities to use this technology to expedite contract management process."

The "one link in the chain" is the important part of this quote. Too many people I talk to see the goal of document assembly as being to generate finished documents with a "push of the button." That's not it at all. My goal is always to generate significant improvements in generating first drafts - versions of documents that are in "good enough" form that you can start immediately to do custom work and tailoring. People who look for the 100% solution from document assembly are inevitably disappointed and forego the benefits that 80%, 60% or even 20% solutions can bring them.

In a way, they remind me of people who see the benefit of electronic discovery only as a way of finding "the smoking gun." Long-time users of electronic discovery rarely talk about "smoking guns." Instead, they talk about the benefits of productivity, efficiency, organization, streamlining, telling a better story and focusing on the key issues. In other words, there are substantial benefits that flow from improved processes and procedures.

Document assembly brings with it a set of similar benefits beyond the "push button drafts" that most people concentrate on. They are similar to those you find in electronic discovery. Kraft and Enholm mention these other benefits: "GCs that effectively adopt these tools can conserve legal resources and time -- and contribute to the competitiveness of the company."

I've seen the benefits of document assembly coming in not just efficiency, but standardization, quality control, consistency, training, and effective use of learning from previous deals and documents. In fact, I've sometime described document assembly software as a tool for applied knowledge management. As you think in terms of CLCM, you will start to see the role that document assembly might play in the process.

Kraft and Enholm go on to say, "'Contract process software' is perhaps an apt label for the products that bridge document assembly and contract management."

In 2005, Cisco's NDA Central project (demo and white paper accessible from DealBuilder here (free registration required) has deservedly garnered a lot of attention. NDA Central took an undisciplined method of handling simple legal projects and used document assembly as a tool not just to create legal documents, but to manage and improve a business process with positive business results to the company and improved workflow and higher-value work for the legal department and outside counsel.

Again, Kraft and Enholm, "GCs want help from outside counsel to establish processes and protocols, help draft underlying documents and maintain the systems in our ever-changing legal environment." Here's the key to CLCM and the new approaches to using technology in the practice of law starting to be known as Law 2.0 - there are clear benefits to both clients and lawyers. Often, it allows the lawyer to do higher-level work, often the type that the client really wishes the lawyer had more time to do.

Kraft and Enholm provide an excellent, brief introduction to an area that could become as significant to transactional corporate lawyers as electronic discovery is to litigation lawyers. The rest of their article is well worth your while to read as well.

What do I think of the interplay of CLCM and document assembly and the potential that it has? Let's put it this way, if I spent the whole of 2006 working only on these types of projects, 2006 would be a great year indeed. This is one topic you'll being hearing more about from me in 2006.

Technorati tags: law2.0 4g legal technology legal technology document assembly contract life cycle management general counsel technology law contract process software

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

This post brought to you by Dennis Kennedy's legal technology consulting services, featuring RSS and blogging consulting, technology audit, strategic planning and technology committee coaching packages especially for medium-sized law firms (15 - 100 lawyers) and corporate legal departments.

Posted by dmk at 01:51 PM | Comments (0)

December 17, 2005

Just a Reminder about Getting Permission Before Reproducing My Posts on Your Blog

I noticed this week that my recent posts were regularly appearing on a site at the aspsurvival.com domain name. I'm talking about my full posts, not just excerpts. In at least one case, another blogger linked to a post on that domain, thinking they were linking to my post.

Let me make it crystal clear that I have nothing to do with the aspsurvival.com site.

Just to make the obvious even more clear, you will need to get my permission, which I usually grant, to reproduce and reuse my posts in a manner that goes beyond fair use.

I'll also note that there has been a growing growing amount of comment and concern about instances of blogs "repurposing" content of other blogs to take advantage of ad programs. At an extreme end of the spectrum is a phenomenon known as "splogs." Steve Rubel has some posts on the topic of splogs and related matters here, here and here. I definitely recommend that you read these posts (and the comments) and think carefully how you use posts from other blogs, whether they explicitly have a Creative Commons or other license, or whether they are silent on the issue of licenses and permissions. It's a good idea to familiarize yourself with the basic concepts and recent developments in fair use on a regular basis. As a reminder, I have specifically chosen not to use a Creative Commons license on this blog even though we use one on the Between Lawyers blog.

Interestingly, Frederik Hermann has, with more than a bit of irony, suggested that maybe blogs that mirror or echo your posts might be a backup source in case you have a problem with your blog.

One of the reasons I place the "originally posted on DennisKennedy.Blog" note at the bottom of each of my posts is to try to be sure that some kind of attribution stays with my posts if they are harvested and repurposed.

It will certainly be interesting to see where, if anywhere, this post gets automatically reposted. That also will have more than a bit of irony, to say the least.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Like what you are reading? Check out the other blogs where I post - Between Lawyers (feed) and the LexThink Blog (feed).

Posted by dmk at 11:08 AM | Comments (0)

December 04, 2005

Data Diligence - Legal Issues in ASP Contracts

Jennifer Jones has a very good article in ComputerWorld called "Data Diligence: It takes a skilled lawyer to skirt danger zones in a managed service provider agreement." I was fortunate enough to be one of the people quoted in the article, which is my first appearance in ComputerWorld, a publication I have read and admired for many years.

The article is a great primer on the many issues that can be raised when entering even the simplest "managed service provider" (MSP) or "application service provider" (ASP) agreements. In this area, small and medium-sized businesses often face the most pitfalls.

From the article:

"Vigilance is prudent, not because MSPs are neglectful but because problems are common, experts say. "When outsourcing, it is surprisingly easy to do things like run afoul of a privacy policy," says Dennis Kennedy, an IT attorney in St. Louis."

If you are considering this type of arrangement for IT services - and most everyone is these days - be sure to check out the article.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

This post brought to you by Dennis Kennedy's half-day electronic discovery seminar - "Preparing for the New World of Electronic Discovery: Easing Your Transition from Paper to Electronic Discovery." Contact Dennis today for more information and to schedule a seminar for your firm or legal department.

Posted by dmk at 11:36 AM | Comments (0)

December 02, 2005

Law and Order in Open Source

If you were interested in my recent article on best practice for using Open Source software on LLRX.com, Computerworld has a good article called "Law and Order on the Open-Source Range" that addresses some of the practical issues and approaches businesses are taking when they use Open Source software.

The approach of Fidelity Investments mentioned in the article - in essence, an internal Open Source task force - is especially interesting.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog)]

Like what you are reading? Check out the other blogs where I post - Between Lawyers (feed) and the LexThink Blog (feed).

Posted by dmk at 05:09 PM | Comments (0)

December 01, 2005

Seven Quick Negotiating Tips from Columbo - Article

[NOTE: This is another in the series of repostings of my previously-published articles. This article is from my "Practical Technology Contract Review News," a newsletter I did a couple of years ago, before concentrating on blogging and other writing efforts. This article is meant to be fun, but still give you some helpful tips about negotiation. And, yep, my daughter and I are still Columbo fans.]

Seven Quick Negotiating Tips from Columbo.

My daughter and I have been watching reruns of the old Columbo TV show. It struck me that there are some good lessons to learn from these shows about contract negotiations. Consider these:

1. Do Not Underestimate the Opposing Party. The criminals always make the assumption that Columbo is not an opponent who matches up to the high opinion they have of themselves.

2. "Bear with me, I'm just trying to understand this." Columbo often uses this tactic to get his adversary to spin out explanations of events in ways that show contradictions. Try this: "Bear with me, I'm just trying to understand how if your software infringes someone's copyright, and we can't even see the source code, why should we bear the risk of an infringement claim instead of you."

3. "My superiors want me to tie up all the loose ends. You know how they can be." This tactic is actually a variation of #2. The advantage is that you can keep a friendly relationship and blame the boss.

4. Be Polite But Be Persistent. Columbo uses a very high level of patience combined with a dogged persistence. He remains personally likeable while continuing to move toward his goal. The opposing party still likes you, but they reach a point where they just want you to stop coming back to the same point about the damage cap, and may become willing to give on the point.

5. Ask for the Opposing Party's Help. A good tactic when you reach the endgame stage. "Can you help me out? If we can just get these two points - and they really are minor points when you think about it - then I know we'll get the signature and put this one to bed."

6. "Just one more thing." Columbo says this signature line as he gets to the door to leave, as if he has just remembered a small point that slipped his mind - almost as an afterthought. The "one more thing," in fact, deals with his major reason for having the conversation in the first place. Psychologically, Columbo's opponent has already mentally "closed the door" on the conversation, dropping his or her guard, and leaving an opening to make the point with greater effect.

7. Keep Your Focus. Misdirection plays an important role in Columbo's style and approach. However, his focus never wavers from his goal of solving the case.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

This post brought to you by Dennis Kennedy's legal technology consulting services, featuring RSS and blogging consulting, technology audit, strategic planning and technology committee coaching packages especially for medium-sized law firms (15 - 100 lawyers) and corporate legal departments.

Posted by dmk at 07:09 PM | Comments (0)

November 28, 2005

A Practical and Reasonable Approach to Working with Open Source Licenses

LLRX.com is my favorite place to publish my new articles. The newest issue of LLRX.com, in addition to its usual excellent collection of articles, contains a new article from me called "Best Legal Practices for Open Source Software: Ten Tips For Managing Legal Risks for Businesses Using Open Source Software." I like the description of the article on the site: "Dennis Kennedy's checklist is a practical evaluation of key factors that will ensure a sound decision making process in the adoption and implementation of open source applications within various legal settings."

The article grows out of a presentation I've given (and would like to give much more often) that introduces the Open Source licenses and then discusses how best to assess and manage the legal risks involved in using Open Source software. I also wanted to write something that was practical - there are plenty of good academic articles on the Open Source licenses. I should know - I've written a couple of them, including this law review article a few years ago.

Here's my variation from the standard legal presentations you might see and hear on this topic: I take the approach that you've made the business decision to use Open Source software and that you want to take a realistic approach to handling the legal issues, not that you want to hear from a lawyer a million reasons not to use Open Source software regardless of the business rationale for using it. I also tell the audience how to talk to their lawyers about Open Source, what questions to ask, and how to tell if your lawyer really knows what he or she is talking about when it comes to Open Source. Sometimes it's better to know more than the lawyers when you go into the meeting.

In any event, I gave the presentation from which this article comes to a group of IT and business people (no other lawyers there) and it was one of the most fun presentations I've ever done.

During the presentation, it struck me that, especially in this context, legal risks are just one component of the total risk management picture and, this may be why people say that I don't sound like all the other lawyers they know, it may not even be the most important component. As I said, there are many ways for lawyers to say "no" to Open Source software - I want to provide a framework where you can say "yes, and here's how," if that's where the business logic and your approach to risk management lead you.

So, the article pulls from a "practical tips" section of that presentation and offers what I hope are some helpful tips to help you make good, solid decisions about when and how to use Open Source software in your business.

At the same time, the presentation and the article helped me think through some of the aspects of what I might call "open source law," or ways that we can apply Open Source licensing principles to the delivery of legal services. I write about that topic from time to time, but not as much as I'd like to, on the Between Lawyers blog.

Let me recommend my article and this whole issue of LLRX.com to you, especially Donna Cavallini and Sabrina Pacifici's article on resource for competitive intelligence and John Alber's important article on ERP and data warehousing (trust me, it's a must-read). Sabrina has done her usual stellar job with this issue and it's always a pleasure for me to publish my new articles there. As an aside, I thoroughly enjoyed getting the chance to present with and talk with Sabrina at BlawgThink.

Oh, yeah. The money quote from my article:

If the lawyer only looks at the legal issues and the CIO looks only at the IT issues, you increase the likelihood of finger-pointing when an unexpected, but quite predictable, bad result occurs. No one, especially me, likes the idea of yet another committee meeting, but Open Source is a good example where time and effort spent on the front-end will pay off substantially over the alternative of cleaning up potentially messy and expensive situations in which you may one day find yourself.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

This post brought to you by Dennis Kennedy's speaking services. Contact Dennis today for more information and to schedule a seminar for your firm, legal department or other group.

Posted by dmk at 05:12 PM | Comments (1)

September 26, 2005

Electronic Signatures Approved for Wills

The Wills, Trusts & Estates Prof Blog has a post discussing a recent Tennessee case holding that a computer-generated signature was vaild on a will. The post quotes from Chad Ross's case comment in the University of Memphis Law Review.

The money quote comes from Chad's article:

With its holding in Taylor, the Tennessee Court of Appeals becomes the first in the nation to rule on the validity of a testator's computer-generated signature. . . . In so doing, the court has issued a well-founded opinion that proves that the statute of wills can accommodate the advances of technology without sacrificing the goals that underlie the statute.

People often ask me why we can't use electronic signatures for transactions these days. I always say, "You can." See this article Chip Fendell and I wrote on electronic signatures a few years ago here.

I applaud the Tennessee opinion for its very reasonable approach to dealing with the intersection of traditional legal principles and technology.

I also hope that it helps get the word out on the validity of electronic signatures. I still can't get over the number of companies that send me forms they want me to sign and fax back to them. Think about the absurdity of that for a minute.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

This post brought to you by Dennis Kennedy's eBooks - Preparing Your Law Firm for the Internet Era: 150 Steps Toward a 21st Century Practice of Law, Dennis Kennedy’s Legal Technology Primer and Unlocking the Secrets of Legal Technology and Technology Law: Finding Your Way in the First Internet Era.

Posted by dmk at 09:55 PM | Comments (0)

August 26, 2005

Podcasting : The Need to Read Digital Music and Other License Language Carefully

Cory Doctorow read the PodShow license for use of commercial music in podcasts and recovered enough from the shock to post about it. He illustrates why it's important to read the fine print. After all, you might want to simply to use the music, not limit what you can and cannot talk about.

As Marty Schwimmer recently said, "Maximizing every short term advantage may not be the best long-term strategy."

For a great article on available resources on digital copyright and licensing issues, see Therese A. Clarke Arado's "Copyright and Licensing Digital Materials - A Resource Guide" on the always excellent LLRX.com site.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

This post brought to you by Dennis Kennedy's eBooks - Preparing Your Law Firm for the Internet Era: 150 Steps Toward a 21st Century Practice of Law, Dennis Kennedy's Legal Technology Primer and Unlocking the Secrets of Legal Technology and Technology Law: Finding Your Way in the First Internet Era.

Posted by dmk at 07:47 PM | Comments (0)

August 12, 2005

Sarbanes Oxley Compliance Revisited

While Sarbanes Oxley (or SarbOx or SOX, depending on your preference) can seem, well, so 2004, an article in CIO Insight called "SarbOx Complications Overwhelm Preparations" does a great job of illustrating how the devil is in the details. This article gives a verry practical look at the real world consequences of SarbOx compliance. Interestingly, I didn't see anything in there about lawyers helping out in the process.

The money quote:

Compounding the catch-up costs is the fact that the Securities and Exchange Commission has provided little leadership over exactly what the scope of SOX should be, and as a result, "the audit firms have jumped in and decided what they want," says Tillman of ARMA. "The CEO doesn't want to go to jail, so he says, 'Pay the auditor.' It's a recipe for disaster." Because internal and external audit teams have different definitions of compliance—and methodologies for achieving it—a costly and time-consuming tug-of-war ensues. "Auditor A does it one way, auditor B does it another, and they will never admit the other is right, because then the billable hours go down," says Blue Rhino's Travatello.

I guarantee that this article will give you a lot to think about, as SarbOx consequences often do.

[Originaily published on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

This post brought to you by Dennis Kennedy's consulting services, featuring RSS and advanced blogging consulting and technology committee coaching packages for law firms, corporate legal departments and other professional services providers.

Posted by dmk at 01:32 PM | Comments (0)

August 11, 2005

PLI All-Star Briefing - A Consistently Excellent Free Resource

I received in my email inbox today the latest issue of the PLI All-Star Briefing, which has become one of my favorite legal email newsletters and legal resources. And it now has an RSS feed (note: includes other PLI newsletters as well - This, in my opinion is a must-subscribe RSS feed for business lawyers).

Today's issue, not yet available on the web, covers the topic of Circular 230, which has implications for lawyers giving any kind of tax-related advice. The newsletter contained an excellent overview from well-known estate tax guru Jonathan Blattmachr that provided exactly the kind of overview of this topic that I have been wanting to see. It also provided a short excerpt from his PLI seminar on the topic. Best of all, as it does each week, the newsletter had a URL to downloab an excellent article on the topic, in this case and article by Blattmachr and others called "Overviw of Circular 230 for Tax Practitioners."

While the newsletter doesn't cover topics of interest to me every week, it does so on a consistent basis and each issue has free downloads of a handout, article or forms.

Obviously, the newsletter is designed to market PLI's excellent seminars, but, as I told John Mastandrea of PLI earlier this year, it's done a great job of turning me into a fan of PLI and increasing the likelihood that I would attend or recommend that someone else would attend a PLI event.

For organizations struggling with the proper balance between giving away content and "gating" information so only members or subscribers can see it, the PLI model is an excellent one to follow.

How about a money quote from today's newsletter:

"Taken literally, the changes are extremely broad, inhibiting the free flow of information about Federal tax matters from lawyers and accountants to their clients—and will increase the cost of delivering written work product to clients. The Circular 230 amendments represent one of the most significant developments in practice in recent years."

Two action steps for you:

1. Take a run through the archives to see why I am so enthusiastic about this resource.

2. Subscribe to the newsletter (info here) or to the RSS feed. You can thank me later. A tip of the hat to John Mastandrea and the crew at PLI for providing this resource.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

This post brought to you by Dennis Kennedy's half-day electronic discovery seminar - "Preparing for the New World of Electronic Discovery: Easing Your Transition from Paper to Electronic Discovery." Contact Dennis today for more information and to schedule a seminar for your firm or legal department.

Posted by dmk at 11:01 AM | Comments (0)

July 19, 2005

Marty Schwimmer on Similar Blog Names and Blog Trademarks

Leading legal blogger and Moneyball fan Marty "The Trademark Blog" Schwimmer hits a home run with a great, concise discussion of the issues arising out of similar blog names and blog-related trademark issues.

There are few things that will upset a blogger more than seeing someone start a blog with a very similar name. If you've found yourself in that place, you'll appreciate Marty's post. And you'll find a lot of other great material on his blog.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

This post brought to you by Dennis Kennedy's half-day electronic discovery seminar - "Preparing for the New World of Electronic Discovery: Easing Your Transition from Paper to Electronic Discovery." Contact Dennis today for more information and to schedule a seminar for your firm or legal department.

Posted by dmk at 08:54 PM | Comments (0)

June 27, 2005

WSJ Grokster Roundtable Illustrates Benefits of Blogs for Serious Discussion of Legal News

The traditional model: Supreme Court decides major case and 6 to 12 months later (or even later) serious discussion of the case and its implications appear in law review articles.

The new model: Supreme Court decides major case and immediately serious discussion of the case by a stellar panel of experts appears on a group blog set up for the purpose.

Check of the WSJ Grokster Roundtable and see which approach you prefer and ponder the future of the traditional approach.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

This post brought to you by LexThink!(tm) - The Conference, Re-imagined. LexThink! - Think big thoughts, do cool things, change the world.

Posted by dmk at 09:08 PM | Comments (0)

May 09, 2005

Hot Property - The Book and the Whole IP Debate

I was at my public library the other day and found a new book called Hot Property: The Stealing of Ideas in an Age of Globalization, by Pat Choate.

I recommend the book for your summer reading list on intellectual property because it tells so well the stories that led to the evolution of today's approaches to intellectual property protection.

Although I suspect that most peoples' reaction to this book will reflect their political persuasion, this review in Business Week strikes me as a fair one, even though I think that the reviewer underestimates the final third of the book, in which Choate suggests that the U.S. textile industry (and perhaps a million jobs) was sacrificed to an attempt, as yet unsuccessful, to bring the world to a more United States-like regime of intellectual property protection.

I'll note the following:

1. You'll be hard pressed to find a more thorough and well-stated defense of strong intellectual property laws. The most interesting question is, given that, will you find it convincing?

2. You'll get just a hint that our IP laws favor businesses that own IP rather than individual inventors.

3. You'll notice that the stories of inventors we got in school left out all of the most interesting parts of the stories.

4. You'll question the sanity of an approach to IP law that throws lots of resources and effort at high school and college students sharing music files when billions of dollars worth of IP is systematically pirated in other countries.

5. You'll wonder, if just for a moment, whether our government has been involved in the biggest giveaway of this country's intellectual property legacy while our representatives busily work to earn the contributions of the entertainment industry.

It will make you think, and that's a good thing. Put this one on your summer reading list.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Posted by dmk at 09:24 PM

April 10, 2005

The Debut of the rethink(IP) Blog

As you may know, I have a general policy not to routinely mention new legal blogs.

Today, I gladly break that policy to announce the new rethink(ip) blog. The people behind rethink(ip) have impressed the heck out of me and it's well worth your while to pay attention to whatever they are doing. They didn't even ask me to mention their new blog, which shows that the best way to get mentions on other blogs is not to ask for reciprocal links, but to do cool stuff and post great content.

The other excellent new blog that I want to highlight is Between Lawyers, but I think you'll understand the reason for that.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Posted by dmk at 02:32 PM

February 22, 2005

By Request Friday – Given the Years that You Spent in Estate Planning Earlier in Your Career, Do You Have Any Insights into Some of the New Issues Arising Over Digital Information, Email, Blogs and Websites When Someone Dies?

Great question! And a timely one as well.

I was recently interviewed by Susan Shor on this very topic for an article that just appeared at http://www.technewsworld.com/story/40578.html. Susan's excellent article covers a good number of thought-provoking issues that are both theoretical and practical at the same time.

In many cases, the traditional rules and procedures that we use in the paper world will cover what is needed in the digital world, if only we could take a deep breath and not panic and think that "the Internet changes everything and we need different rules because the old rules don't apply."

The difficulties come in three ways: (1) the traditional processes may be way too slow, (2) there is not a history and degree of comfort with what happens in the digital world on death that you find in standard "probate" procedures, and (3) non-Internet savvy lawyers, executors and trustees can easily overlook digital "assets" and may have no appreciation of the value of digital and intellectual property assets.

Here's an example. Imagine Hunter S. Thompson had never published any books, but that all of his writings were on his blog. On his death, what value do you put on the estate tax return for the value of his "blog assets"? Trick question – of course, you want to value them at zero. However, what value will the IRS want to see and what will the IRS agree to accept?

Is your blog simply a hosting contract that should be terminated to as an ongoing liability to be extinguished or is it a potential source of income to look after your survivors?

It's not so easy, is it? What do you think the lawyer who prepared your will / living trust will say when you ask these questions about your blog, your email and the rest of your digital life and digital assets? What is a reasonable expectation for legal representation in our increasingly digital world?

A little scary, isn’t it?

It's another example how if you discuss blogging in almost any context, you almost invariably find yourself addressing very fundamental core questions.

Susan quotes me in the article on what, to me, became the most interesting issue raised during our phone call:

"More and more social relationships are people we know on the Internet," [Kennedy] told TechNewsWorld. "If someone dies, there are a lot of people who should be notified. The fact that someone has died is very meaningful and a paper address book may not have closest friends. Those people who are known mainly through e-mail or online may wonder what happened. By the time things get sorted out, the funeral is long over, and it's too late."

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Posted by dmk at 09:54 PM

February 16, 2005

The Hayekian Structure of Blogging

As part of my continuing, and increasingly desperate, effort to reach out and attempt to get the law professor blogs to take notice of practicing lawyer bloggers (especially me), I again highlight one of the law professor blogs I read on a regular basis.

Larry Ribstein's Ideoblog is a regular read in FeedDemon for me. Some people believe that I am having fun with this series of posts on law professor blogs (and perhaps I am), but the truth is that I am mentioning blogs that I regularly read the feeds of and find quite valuable.

Today, Professor Ribstein made an excellent point that I probably would have never otherwise considered in his post called "The law and economics of blogging."

Here, at least for me, is the money quote:

"[T]his sort of blogging (I'm still deciding what to call it) involves at least two characteristics: (1) a Hayekian system for creating knowledge; and (2) an alternative incentive system for spurring this creation. . . . By a Hayekian system, I mean that the web is a decentralized information market, where nearly infinite inputs, each perhaps inconsequential, create valuable knowledge."

While some other practicing lawyer bloggers might use words like "impenetrable" to describe this passage, I, on the other hand, after an initial bout of dizziness, am quite intrigued by Professor Ribstein's approach and his conclusions, which I like:

"This leads to some specific applications.

+ We should be wary about creating broad vicarious liability for co-bloggers. This is not the sort of business in the conventional sense that generally gives rise to partnership-type liability, even if the blogger does take ads.

+ "Loss-leader" posters should not face the sort of professional liability that is triggered by conventional professional advice.

+ Bloggers should get journalist-type (though possibly at a lower level) first amendment protection, e.g., as from testifying in the Plame case."

Here's my interpretation: Look, bloggers just want to have fun and we are having fun (even the lawyer bloggers are having fun!), so, for God's sake can we go slow on having the non-blogging lawyers and legislators move in and ruin the fun for everyone.

If it takes a Hayekian analysis to keep the fun in blogging, then, by all means, bring on the Hayek. Can I get Hayek's works on iTunes?

Professor Ribstein's post sets out his thoughts for an upcoming presentation next month. Illinois is close enough to St. Louis that I might actually attend this presentation.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Posted by dmk at 08:52 PM

January 24, 2005

Kevin Buckley Named One of St. Louis's 40 Under 40

My friend, biotech guru, occasional bicycling buddy, rock climbing teacher and patent lawyer, Kevin Buckley made the St. Louis Business Journal's list of 40 under 40 announced last week. He certainly deserves the recognition and it's an honor to be one of the people quoted in the article about Kevin.

As I told Kevin when he told me about this a few weeks ago, I know I'm more excited about this than Kevin is - I really like to see my friends do well and get some attention.

Kevin cares about people and he cares about biotech. It's rare to see a lawyer with Kevin's enthusiasm and passion about both the subject matter of the area of the law and the people involved in it.

If, in fifty years, someone writes a book on the history of the biotech industry in St. Louis, there will definitely be a chapter on Kevin. In it, Kevin will (1) consistently point to everyone other than himself for their efforts and (2) keep emphasizing that the best is yet to come. In it, other people will point to all the things Kevin has done, most of it behind the scenes, to put together people and make the industry happen.

Once Kevin has a little time to celebrate, I'll go back to twisting his arm to start a blog.

As an aside, I've always said that a key question to ask any lawyer is, "What do you like about practicing law?" The best lawyers I've known invariably say something about liking to help people. Note Kevin's quote in the article:

"There's this huge disconnect between research and providing a final product to sell," he said. "That's really where I want to target my practice, and really where I want to help entrepreneurs."

Posted by dmk at 09:27 PM

January 14, 2005

Blogline.com's Blog "Mapping" Policy Forces Bloggers to Move to Ads in RSS Feeds, Says Prominent Lawyer Blogger

In almost ten years of having his own website, Dennis Kennedy says he has seen his content show up in many unexpected places. However, even he was surprised when he found a twin of his blog on the website of Bloglines.com, a very popular blog tools and RSS newsreader service.

"I had done a search on Google and found that one of my blog posts was one of the top results," he says. "Then I noticed that the address for my post was not on my website, but instead on the Bloglines.com site."

When he went to http://www.bloglines.com/preview?siteid=546436, he says, "I found a doppelganger of my blog. I saw my full posts mapped onto something that someone might think was my blog, but it definitely was not my blog. Worse yet, the URL in the address box in my browser showed a bloglines.com address, not a denniskennedy.com address. Anyone who came to this page would definitely think that it was my blog and probably conclude that I was part of the Bloglines team."

When he did some more checking, Kennedy found another big surprise. The Bloglines.com addresses for his posts sometimes were ranked higher than those on his own site. In one case, however, a visit to http://www.bloglines.com/blog/cchick?subid=4563300 brought up a page that mapped his posts onto a version of Cindy Chick's LawLibTech blog. "Hey, it's an honor to be associated with Cindy's great blog, but it's extremely confusing and someone could easily believe that I was copying Cindy's material on my own blog, or vice versa. Talk about the worst of all worlds."

Even though Kennedy reports that his web pages have been "repurposed" by other sites more times than he ever expected over his years on the Internet, he says this time was especially unsettling. "I have to admit that my first reaction was to think that they had stolen my blog. I even went back to my own blog to check to make sure it was there."

Kennedy, whose law practice includes intellectual property licensing matters, raises a number of questions about Bloglines.com's practices. "There's no question that fair use is a complicated area in copyright law, but it's difficult to find ways to fit this example into traditional notions of fair use. I'd be surprised if they hadn't gotten a legal opinion on this approach, since it seems so central to their business model, but I'd like to see the reasoning in that opinion."

His main question, however, relates to the commercial benefits Bloglines.com seems to gain from his content. "With my content on their site, they are able to surround my content with their own ads and make it part of other revenue-producing activities. At the same time, they are not showing any ads or sponsor logos I have on my blog. Presumably, the Bloglines.com twin of my blog diminishes the traffic to my blog. It's all very analogous to the early controversies over the framing of web pages, even though the technologies are different."

However, more than intellectual property law may be at play. "Everywhere we go on the Internet, we are clicking our agreement to all sort of contracts that we may not read carefully enough," notes Kennedy. "I'd hate to think, however, that we are giving our permission for this type of use with a click of the mouse or simply by using the Bloglines.com website."

He sees no clear answer, for himself or other bloggers. "It's difficult to sort these issues out. In a sense, by using an RSS feed I am exposing my content to the world and, as my friends will tell you, I probably won't be satisfied until everyone in the world is reading my posts. In some ways, the whole scenario reminds me of a law school exam question. Fair use or not? What controls? Their clickwrap agreement, if any, the "terms of use" language on a blogger's site or something like a Creative Commons license for the bloggers who use these licenses?"

Kennedy admits that he has expected to see some action or discussion from the Creative Commons group. "One of the Creative Commons licenses you see frequently specifies no commercial use. Wouldn't this be commercial use? The silence from Professor Lessig and the Creative Commons group has been overwhelming. It raises serious questions about what the CC licenses really mean and how their terms will be enforced. I don't use the CC licenses because I don't think that they make sense for me, but many bloggers routinely apply one of these licenses."

Do bloggers have any recourse? "That's a great question," says Kennedy. "Bloglines offers an RSS feed reader tool that many people I know really like. I'm one of the biggest advocates of the power of RSS feeds you'll find. I hate the idea of seeing the development of RSS feeds slowed down to any degree whatsoever because of lawyers and legal issues. I really want to hear more from Bloglines about this issue before making any final judgments."

Kennedy suspects that there may not be any simple practical solutions. "Of course, I'd love to see some of the venture capital money that Bloglines has gotten or will get make it back to me," he chuckles. "Your first thought, of course, is that there should be some form of payment to the bloggers whose content is harvested and mapped onto the Bloglines site, but creating a mechanism would not be an easy job. In addition, you have the Google model, where, as I understand it, Google has actually copied my content into its databases. I haven't gotten my check for my small contribution to Google's successful IPO and I'm not holding my breath waiting for it to arrive," he says, laughing.

"I always prefer practical technology solutions to legal solutions," say Kennedy. "Maybe that's why people also tell me that I'm not like most lawyers they meet. So, I've been thinking of practical alternatives."

Has he found any good ones? "Well, Bloglines seems to be capturing and repurposing feeds rather than reproducing blog content, if I can make that fine a distinction. I look to the feeds for the solution. Although it puts a burden on bloggers, I'm giving serious thought to including a statement at the bottom of each of my feed items that gives the post's real URL on my site and makes it clear that I'm not a participant in or an endorser of the Bloglines site. But, that only covers half the problem."

Some may be surprised to find that in the free-ranging world of bloggers, there is one place most bloggers are afraid to venture. "The last taboo in blogging is definitely placing ads in feeds. The group of bloggers who most of us see as the inventors of blogging debate this issue endlessly and treat placing ads in RSS feeds as a defining moral issue. Those who have tried putting ads in feeds have really taken some heat."

Kennedy laments the fact that the debate has gone on and on and seems no closer to resolution. "Between Thanksgiving and the end of 2004, I collected more than 150 blog posts on the topic of ads in feeds. It's sad to see highly-regarded and popular bloggers resorting to pledge drives, begging and randomly-served ad schemes that probably only benefit blogs with huge numbers. It breaks my heart to see a blogger who provides great computer tips or other great information begging for donations when his or her aging computer dies, especially when companies would gladly pay for even a simple sponsor logo in that blog's RSS feed."

Today, Kennedy feels the debate over ads in feeds has reached the "how many angels can dance on the head of a pin" stage, with a focus on semantics and metaphysics. "I minored in philosophy in college, but the discussions in this debate can make my head spin. I hate to even comment on the current argument that it is OK to make money from blogs but not to make money with blogs. By the way, it is essential to italicize the "from" and "with" to get the real flavor of this discussion. As a practical matter, some of the explanations why one practice is a "from" and another is a "with," make you long for the clarity of Bill Clinton and what the meaning of "is" is. I don't want to be critical, but it's possible for a disinterested observer to conclude that "from" is what the person making the argument does and "with" is what someone else does, at least in some of these discussions. The irony is that the whole debate has ended up putting most bloggers in the worst of all worlds – the world of randomly-served ads. How in the world that isn't a "with" I'll never understand. Sorry for all this inside baseball talk about blogging esoterica."

Kennedy says that he and others are losing patience with the debate and the world of randomly-served ads that the endless debating has created. "I want to be a good citizen in the blogosphere. Lawyers already have a place in Internet history as the creators of spam. I've been reluctant to move to ads in feeds, despite the inquiries I have had, without a clear signal from the leading bloggers who dominate this issue."

He reflects for a moment and then says, seriously, "The approach Bloglines has adopted, especially in my case, changes the whole nature of this debate about ads in feeds. In fact, I'd argue that it ends the debate. If my blog can be duplicated in another location without the ads on my blog or any of the other materials I might have on my blog about my products or services or other ways I might make money "from" my blog, then what are we left to talk about? The only effective choice I have to realize the value of my blog's content and audience is to sell ads in my feed. Bloglines has brought the issue to a head. In fairness, Bloglines is not alone – you will find other examples."

Kennedy plans to take steps soon, but he's not looking to fill his feeds with intrusive ads. "I don't even understand why bloggers would use randomly-served ads. It not only works against the sense of trust and authority that a top blogger can establish, but it also introduces the possibility that a randomly-served ad may make it look like you have a conflict of interest. I've always thought that the sponsorship approach is the way to go, with a small, tasteful logo and tagline, and possibly with a link that allowed the blogger to earn commissions on sales generated through the feed. That approach also has the benefit of disclosing a blogger's financial relationships. It helps readers adjust for potential bias or conflicts, while offering good compensation to niche bloggers."

Kennedy warms to the subject, "Sponsored ads in feeds are such a logical step that I've been surprised that there has been such a fight against them. Blogging is about freedom, but the one thing I've never felt free to do as a blogger is put an ad in my feed. I understand the concern about spammers and pop-up ads, but that concern doesn't come up in the case of sponsored feeds. Each blogger can make his or her own decision. Now only the highly popular blogs can earn anything significant from ads on their blogs and corporate and academic blogs are almost immune from the question. Let's end the debate and start experimenting. At this point, Bloglines has forced the issue and I feel compelled to move to the ads in feeds approach rather than stand idly by and watch others make money off my content."

With a twinkle in his eye, Kennedy smiles and concludes, "As the song says, if ads in feeds are wrong, I don't wanna be right. I'm willing to take the heat, but Bloglines has forced my hand."

Does your blog have a twin out there?

Posted by dmk at 05:43 PM

January 06, 2005

SDN Compliance – Another Huge Compliance Issue Flying Under the Radar

Sarbanes Oxley is sucking away almost all of the oxygen in the coverage and discussion of records management and related issues. However, many businesses are finding that they may have issues relating to the Patriot Act, "deemed exports" and "specially designated nationals and blocked entities."

I had an interesting discussion yesterday with Sean Tierney of Legal Technology Consulting, Inc. about the later topic yesterday. He's developed a web-based compliance tool and is working on other compliance tools.

Let me simply give you the summary from LTC's SDNCompliance.com site:

"The Office for Foreign Assets Control is a branch of the US Treasury and has the duty of enforcing sanctions against "enemies of the United States" as designated on a master list called the "Specially Designated Nationals and Blocked Entities." OFAC has strict regulations regarding the acceptance of payment from individuals suspected of aiding terrorists. Many law firms may be unaware that they are expected to screen all past and potential clients against a list of nearly 5000 entities that changes daily. Those firms that are aware are grappling with the procedural and technological difficulty of adhering to a very tedious and challenging task. Penalty for violating OFAC regulations (whether knowingly or unknowingly) can result in fines of up to $10,000,000 and 30 years of imprisonment."

As Sean noted, that last sentence will get your attention. Add one more item to your 2005 to do list.

Posted by dmk at 11:52 AM

Macs in Law Offices

I'm working on an article for Law Office Computing about the technology you need to start a law office. My guess is that I'll use the article as a springboard to writing a more comprehensive eBook on the topic.

I decided that I want to have a section in the article about the Macintosh option, which seems more realistic now than perhaps it ever has. I don't have a contact at Apple who works in or has responsibility for the legal services vertical market. If someone can point me to the right contact, I'd be grateful and be willing to see if I can a similar favor for you.

Posted by dmk at 11:50 AM

December 10, 2004

Biden's Pre-Announcement as 2008 Presidential Candidacy Buoys Hopes of Copyfighters

The recent stories of Joe Biden's pre-announcement of his candidacy for president in 2008 have raised the hopes of opponents of the entertainment industry's bulldozer drive through the world of copyright and its recent attempts to beef up copyright laws in its favor. Biden, perhaps the leading pioneer in the world of political speech sampling, can be expected to take an expansive view of fair use, sampling and other creative uses of copyrighted materials by artists.

Posted by dmk at 09:45 AM

December 09, 2004

A Manual of Style for Contract Drafting

I get a surprising number of requests from people wanting to know good resources to learn about how to review and draft contracts.

I've found a great new book that I will consistently be recommending. It's by Kenneth A. Adams and it's called "A Manual of Style for Contract Drafting."

From the back cover:

"The focus of this manual is not what provisions to include in a given contract, but instead how to express those provisions in prose that is free of the problems that often afflict contracts. This manual highlights common sources of inefficiency, dispute, and misunderstanding and recommends how to avoid them. It offers a level of practical detail not found elsewhere in the literature on drafting."

That sums it up nicely. For example, there is a whole chapter on "vagueness," that covers the common problems and shows great ways to clear up the problems and make contracts easy to understand.

I must confess that I ended up reading it from cover to cover in one sitting and got a lot of great ideas. In my defense, however, I did have the book on my "to read" shelf for a while before I worked up the nerve to get started on it. Even if you have to put it in a plain brown wrapper to hide from your friends, you will want to read this book if you play any role, as a lawyer or not, in drafting and reviewing contracts.

If enough people read this book and follow its principles and examples, we'll all have an easier time dealing with contracts.

I'll give you three choices for learning more about the book and purchasing it.

First, you can go to Ken's website to learn more about Ken and the book.

Second, you can go directly to the ABA Web Store to purchase the book. The current special holiday sale price is $35.95 (a bargain, especially considering the prices of most books for lawyers) and this link should take you directly to the book's order page.

Third, you can buy the book through Amazon through my affiliate link and currently find a $29.97 price and earn me a small commission. The downside of this approach is there appears to be a 3 to 5 week delay in shipping the book from Amazon. The upside is that you can, at the same time, buy Ken's other highly-regarded book, Legal Usage in Drafting Corporate Agreements.

I'll let you decide the approach you want to take, but the decision to buy the book is an easy one.

While you're at the ABA Web Store, be sure to take a close look at the following:

1. For a great set of forms for IT, e-commerce and related agreements (with usable forms on CD - highly recommended), consider The E-Business Legal Arsenal with Forms.

2. David Masters - The Lawyer's Guide to Adobe Acrobat.

3. Tom Grella and Michael Hudkins - The Lawyer's Guide to Strategic Planning: Defining, Setting, and Achieving Your Firm's Goals.

Note that a 10% discount is available for books 2 and 3 if you are a member of the ABA's Law Practice Management Section. If you aren't a member, well, darn it, you should be and this discount might be just the motivator you need.

Posted by dmk at 11:20 AM

December 01, 2004

OPEN SOURCING BIOTECH

Jamais Cascio's "Generic Biomedicine" post on the appropriately named "Worldchanging" blog poses a simple question. "The American patent on Human Growth Hormone -- useful for fighting wasting diseases associated with AIDS -- expired in 2003. So why isn't there a far-less-expensive "generic" version available in the US?" His answer includes both the technical answer and a fascinating discussion of the application of "Open Source" principles to biotechnology, including what is already happening and what may well happen in the future.

Posted by dmk at 08:56 PM

October 22, 2004

Ten Tips For Effectively Managing Open Source Software Legal Risks for Businesses

I'm giving a presentation next week on legal issues businesses must consider when jumping into the world of Open Source software. For the handout materials, I've written a new article I'm now calling, until something snappier comes to mind, "Best Legal Practices for Open Source Software: Ten Tips For Managing Legal Risks for Businesses Using Open Source Software."

My approach is my usual one - avoid the relentless nay-saying and theorizing that many lawyers are known for and try to establish a basis for making informed decisions that reasonably manage legal risks in the context of sound business decisions. Don't get me wrong, debating philosophy and theory has its place, but I'm the more practical kind.

I haven't decided yet how and where I'll publish this article (inquiries welcomed), but I thought I'd excerpt some of it here as a bit of a teaser. The result has a little bit of a Zen feel in comparison to the full article. The full article will be available to attendees of my presentation.

+++++

The following ten tips are intended to help you deal with some of the big legal and practical issues. They are, of course, not intended to cover all issues, but they will give you a good checklist to help guide your discussion and make good decisions.

1. Understand the Different Approaches That the Open Source Licenses Take. It is important not to think about the Open Source licenses in monolithic terms.

2. Pay Special Attention to the General Public License. If you choose only one thing to have policies about and require special review of, it should be the General Public License.

3. Remember the Source Code. In simplest terms, the biggest difference between Open Source software and commercial software relates to the source code of the program.

4. Make Reasonable Comparisons with Commercial Software. It's easy to find frantic concerns about Open Source software over reasons that apply just as easily to commercial software.

5. Think in Terms of Choosing, Rather Than Negotiating, Open Source Licenses. As frustrating as it can be to lawyers, the best approach is to evaluate the available choices and weigh the consequences, not to think in terms of ways to tinker with or improve the terms of agreements.

6. Do Not Confuse Open Source with Public Domain. Make no mistake – Open Source software is real intellectual property that is governed by a real license that puts limits on your rights and imposes certain obligations.

7. Inventory and Assess What You May Already Be Using. It has become very important for both business decision-makers and lawyers to have a good understanding of the technology issues, including what the software does and the alternatives available.

8. Open Source Use Requires Open Source Training. Knowing the right questions to ask is half the battle, but IT staff, contract negotiators and legal personnel, including outside lawyers, must be trained on the legal issues involved with Open Source as well as on the policies and procedures that you decide to take.

9. Reasonable Policies and Procedures Are Not Optional. Many business people believe that if you give a lawyer a look at a business process and he or she will find the need for a written policy. However, a reasonable, evolving set of policies and procedures crafted to fit the business needs and corporate risk comfort level of your company will invariably be the best approach to take.

10. Treat Open Source Policy as a Team Game. If the lawyer only looks at the legal issues and the CIO looks only at the IT issues, you increase the likelihood of finger-pointing when an unexpected, but quite predictable, bad result occurs.

Don't be an Open Source ostrich. Addressing this area from a reasonable knowledge base, with your eyes wide open, only makes good sense in today's business environment. These ten tips will help you get your Open Source house in order and pave the way for effective and wise use of Open Source software with your legal risks kept within your level of comfort.

Posted by dmk at 02:50 PM

October 20, 2004

Upcoming Presentation:

I'm thrilled to be part of a major St. Louis Open Source education event produced by the great people at Washington University's Center for the Application of Information Technology. Bill Darte at CAIT has outdone himself in putting together a group of sessions that address where the rubber meets the road in Open Source use and development.

It will take place on October 28th and 29th. I'll be covering the legal aspects of the Open Source licenses on the afternoon of the 28th and may sneak onto a panel or two on the 29th to provide some legal perspective. Otherwise, I'm looking forward to learning a lot of practical information about real world uses of Open Source software. Note the special fee arrangement for corporate counsel.

Here's a copy of the notice. Registration info may be found at http://www.cait.wustl.edu/courses/OPEN50.co

Open Source Software in the IT Mix

Description: This event will provide a comprehensive view of Open Source as an increasingly important IT alternative to the dominant commercial software alternatives. Across the board from niche security products to mainstream applications development these technologies are taking hold. Linux has made major inroads into the corporate server environment and even the dominant Windows desktop is increasingly threatened. Often thought of as ‘Free’ software, Open Source alternatives can pose a complicated licensing issue for organizations. Many other issues related to contracts, version updates and user enhancements cloud this realm of IT decision making. CAIT will explore this topic using Open Source experts and a panel of local IT professionals who are engaged in analysis or implementation of Open Source solutions.

Audience: IT managers across all technologies will benefit from hearing what colleagues have to say about their Open Source experience. IT executives will benefit from the discussion about policy and licensing issues as will corporate Legal Counsel.

Prerequisites: There are no prerequisites.

Objectives: After completing this seminar, participants will be able to:

Evaluate open source alternatives
Understand legal and licensing issues
Know of other open source initiatives in St. Louis

Course Outline:

Day 1
Open Source: A complicated but Important Issue for IT (David Shields - IBM)
Open Source License Legal Issues - Does "Free" Really Mean Free? ** (Dennis Kennedy – Washington University Law School)

** Corporate Attorneys from CAIT Member Companies may attend this session at no charge. 3.6 CLE credits will be awarded for this session through the Missouri Bar.

Day 2

Open Source Alternatives
Linux on the Desktop (Pulitzer Inc.)
Linux as a Server Platform (Tsunami Research)
Open Source Security Tools (Maritz)
Developing Applications with Open Source Technology (Global Velocity)
Open Source Network Management Tools (Maritz)
Other Rational Open Source Policy (CAIT – Washington University)

Pricing

Pricing for 1st Individual
CAIT$ $ 610
Member $ 670
Non-Member $ 820

Pricing for all additional Individuals (1/2 price)
CAIT$ $ 305
Member $ 335
Non-Member $ 410

Lunch is served daily

Note: My earlier articles on the Open Source licenses are now available on my new eBook called "Unlocking the Secrets of Technology Law and Legal Technology."

Posted by dmk at 12:14 PM

October 03, 2004

"Profiting from and Protecting Your Intellectual Capital"

"Profiting from and Protecting Your Intellectual Capital" is the title of my upcoming presentation at the IMC Consultant's University in St. Louis. My talk will be the most practical talk I've ever given about intellectual property, with lots of examples from my own experiences in writing, speaking and creating learning products.

The IMC Consultant's University is traditionally the best one-day education seminar for consultants in the St. Louis area. The 2005 slate of programs look great. Here's the info:

The Institute of Management Consultants - St. Louis announces:
The Second Annual...CONSULTANT'S UNIVERSITY...A full-day conference for management consultants who want to enhance performance and results!

When: October 15th 2004

Where: The Junior League, 10435 Clayton Road in Frontenac

Time: 8:00 to 4:30

Cost: $75.00 for members/$95 for non-members

Highlights:

. Two motivating general sessions

. Four sets of concurrent sessions to choose from . Lunch and energy breaks included . Vendor area . Lots of networking time . Receive valuable materials from sessions

GREAT TOPICS and TERRIFIC PRESENTERS:

Keynote Speaker: Linda Nash http://www.lindanash.com/ "Rhythm and Blues" - The ups and downs of the consulting business - Nationally known and televised personality.

Concurrent sessions so valuable it will be hard to choose:

"Effective Networking Skills" - Cheri Hanstein .

"Dealing with Difficult Clients" - Jan Daker

"Getting on The List": "How to learn about and get government contracts" - Rich Fyke

"Powerful Questions" - Ron Moore
"Monopolize Your Market": "Marketing the professional services firm" - Danette Kohrs

"Extra Hands or Trusted Advisor" - Jim Mittler

"Profiting from and Protecting Your Intellectual Capital" - Dennis Kennedy

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Posted by dmk at 08:48 AM

August 10, 2004

This Week's Issue of IP Memes

Here are few selections from this week's issue of TechnoLawyer.com's IP Memes newsletter. The IP Memes newsletter is available for a free registration and this week's issue was put together by me.

The Presidential Election, Copyright, INDUCE Act (IICA) and Tech Policy

Ernest Miller's blog, "The Importance of . . .," has become a focal point for information and news for the controversial INDUCE Act. He's also begun to pull together information, when he and others can drag it out of the candidates, about the intellectual property stands of the presidential candidates. It's a great place to check if you are interested in trying to learn what might happen in IP law after the 2004 election.

Link to Election Post

Safeguarding Trade Secrets in the Information Age

Sheryl Willert has a comprehensive article on trade secret protection in the August issue of FindLaw's Modern Practice webzine. As she says, "There are no easy solutions to the problem of protecting trade secrets in the information age. But there are definite steps the employer can take, and these include monitoring business equipment and promulgating unambiguous policies." Getting to "unambiguous? is no easy task, but this article will give you a handy primer of the issues you must consider.

Link to Trade Secrets Article

Exploring the Patent Explosion

Berkeley's Bronwyn Hall recent paper takes a close look at the various sources of patent growth in the United States since 1984, drawing some interesting conclusions. Hall notes increases in market value of companies in industries where patent growth surged. The paper also draws some conclusions about the difference in approaches between entry companies and incumbent companies.

Link to Hall's Paper

If You Have Been Feeling that it's Taking Longer to Get Patents

For chart and graphics fans, IPO.org has a great chart showing the ebb and flow of the length of the pendency of patent applications since 1979, all compared to the baseline goal of 18 months.

Link to Patent Chart

Copyscape Internet Infringement Protection

To my surprise, Copyscape's new "infringement protection" service has generated some buzz recently. I've been finding "republishers" of my articles for years by running searches on selected quotes and titles of articles. However, Copyscape offers some nice enhancements and you can run a search on the URL of your article or image. In my test, I found a good number of results that did not seem relevant to my selected article, but I'll be darned if I didn't find a 100% reproduction of my article with no attribution to me whatsoever. I'm impressed enough to recommend that you try Copyscape, although "searching by hand" continues to work quite well.

Link to Copyscape

Columbia University Law Library Music Copyright Infringement Online Archive

The resources you can now find on the Internet are almost without limit. Matt Buchanan's IP blog, Promote the Progress, recently put the spotlight on Columbia Law Library?s online archive about well-known music copyright infringement cases over the years. I agree with Matt's comment that providing music downloads of the songs at issue would be a cool next step.

Link to Columbia Online Archive

Link to Promote the Progress post

Posted by dmk at 11:09 PM

August 05, 2004

Seminars I Wish I Could Attend - Free Software Foundation

The General Public License might well be one of the top ten most influential legal documents of the 20th century. It certainly is one of the most influential legal documents that most lawyers have no awareness of.

On August 24 and 25, the Free Software Foundation will be putting on a two-day, in-depth seminar at Stanford University on the GPL and other aspects of Free Software and Open Source software. If you are involved in technology law, this program is one to take a good hard look at to see if you can attend. With presenters like Dan Ravicher, you are going to get as good an understanding of the GPL as it is possible to get in two days. For more information on the GPL and the Open Source licenses, my Open Source License Law Resource Page is a good starting point.

In my case, I'll be at LawNet at the same time, where I'll be speaking about KM on behalf of SydneyPLUS and hoping to get the chance to meet up with some of the legal tech bloggers who will be attending.

I got the grand tour of SydneyPLUS's kmBuilder yesterday and it impressed the heck out of me for several reasons. First, it seems extraordinarily "forgiving" in that it allows you to make major modifications and revisions to database templates and fields on the fly, allowing great customization. Second, they come into legal KM from a strong library and library science background, making their approach to handling information much more nuanced and friendly than the typical law firm IT department approach. Third, well, you will have to attend my presentation.

Posted by dmk at 03:55 PM

August 04, 2004

A Great Example of the Type of Technology Law Articles I Like to Find

Edward Perlman's "Integrating Business Goals And The Law In Licensing Deals" is a great example of the practical, tell-me-the important-stuff articles I like to find and recommend to non-lawyers.

The money quote:

"Lawyers and business executives have very different perspectives on the topic of licensing. Your outside counsel probably focus on what rights, obligations and liabilities are created in your company's license agreements. As in-house counsel, you want to know whether the license will successfully advance your company's business strategy of obtaining a technology or financial profit, or both. Obviously, integrating both sides is critical."

Perlman makes short, solid points that summarize the business goals (the "whys") and the approaches you can take (the "hows"). Lawyers often assume that you have thought through all the business issues and options. Businesspeople often have an unstated assumption that they expect their lawyers to bring up alternatives rather than stick to the draft agreement at hand.

Lawyers need to consider both viewpoints. Clients need to consider both viewpoints. In many cases, that does not happen, especially when lawyers are unfamiliar with licensing in general, with licensing and related strategies in your industry, and, worst of all, with the technologies at issue in the license.

Perlman's article is a great example of a way to bridge that gap. Highly recommended.

Posted by dmk at 07:01 PM

July 20, 2004

IP Memes Sampler

I keep forgetting to follow the lead of my fellow IP Memesters Denise Howell and Stephen Nipper and post a sampling of the IP Memes Newsletter I work on at TechnoLawyer.com - (email subscription available with free reqistration).

Here's a sampling from the July 12 issue I put together.

From the �Internet Avenger� to the Tenth Anniversary of TRIPs � �Do Something Constructive� and Read This Edition of IP Memes

The Arrival of the �Internet Avenger� � Glickman to Replace Valenti at MPAA

Former U.S. Department of Agriculture, Dan Glickman, has been named to replace the retiring Jack Valenti, who came to symbolize the U.S. entertainment industry and forcefully asserted its views of intellectual property rights during his long tenure as the head of the Motion Picture Association of America. Although I must admit to hearing a few notes of the �Green Acres� theme song in my head every time I think of a former Ag Secretary moving to Hollywood, some commentators have referred to Glickman as the �Internet Avenger� and expect his approach to differ from that of Valenti in some significant ways. In fact, his approach to complaints about the threat of Internet competition to the entertainment industry has been described as �do something constructive about it.� Others expect little change. If you want to single out one place to watch for IP developments in the U.S., that place would have to be what happens in the wake of Valenti�s departure.

Lockergnome Bits and Bytes �Internet Avenger� Story - http://channels.lockergnome.com/news/archives/20040706_hollywoods_internet_avenger.phtml

More from Wired - http://www.wired.com/news/business/0,1367,64063,00.html

More from Yahoo News - http://story.news.yahoo.com/news?tmpl=story2&u=/washpost/20040701/tc_washpost/a21151_2004jul1

More from Broadband Reports - http://www.broadbandreports.com/shownews/47269

Primer on Eighteen Hot IP Issues

Foley and Lardner�s Hal Wegner generated a lot of buzz this past week with his �18 Hot Issues in IP � A Checklist.� The list is a good one and picks up on a number of topics mentioned in the IP Memes newsletter over the past six months or so. I highly recommend it, but you may find it to be focused more on very specific issues and cases than on �big picture� matters. On the other hand, you will be hard-pressed to find a better list in one place with specific case and statute citations and links to key upcoming cases than Wegner�s list. As an aside, Wegner�s article illustrates the continuing ability of big law firms to �get� the Internet � there�s not a sign of Wegner�s article on the Foley website. As a result, the link below does not go to the Foley website. A great opportunity missed.

IP Memester Stephen Nipper�s Coverage - http://nip.blogs.com/patent/2004/07/primer_on_hot_i.html

Link to article on Foley website � Oops, Another Big Law Firm Missed a Good Web Opportunity.

[NOTE: I've recently heard that Foley, perhaps shamed by my comments (but I doubt it), is working on and may have now posted the article on their site. Unfortunately, they fooled me once and I'm not heading back to the site again to check.]

How Free Became Open and Everything Else Under the Sun

You can never have too much of an understanding of the Open Source licenses and the Open Source movement. Biella Coleman and Mako Hill�s recent paper, �How Free Became Open and Everything Else Under the Sun,� is a good addition to the Open Source literature, especially in an election year. It attempts to cover how Open Source works and the opportunities it offers for people and businesses of all political and economic stripes. For those who like to align their software and their politics, recent articles suggest that Republican websites run on Microsoft software and Democratic websites run on Open Source software. You are free to draw your own conclusions.

Free and Open Source Paper - http://www.media-culture.org.au/0406/02_Coleman-Hill.html

Trademark Licensing � The Good, The Bad and the Ugly.

As much as I hate to give away one of my best resources, I must mention the exceedingly valuable PLI Lawyer�s Toolbox email newsletter. What�s so great? In nearly every weekly issue is at least one link to a free download of an outline from a recent PLI program on intellectual property issues. The recent �Trademark Licensing - The Good, The Bad and the Ugly� is a great example of the useful material you can find. I�ll be kicking myself if PLI drops this feature because I mention it, but, until they do, it�s a fantastic resource, and it definitely makes it more likely that you will attend a PLI conference. :-)

Trademark Licensing Outline - http://www.pli.edu/emktg/toolbox/Trademark_Lic25.htm

TRIPS at Ten

The IPKAT blog is always worth a visit. Take a look at the coverage of the recent �TRIPs � Ten Years Later� conference honoring the tenth anniversary of the TRIPs agreement, designed, as you may recall, to globalize intellectual property law. IPKAT highlights some of the key issues that arose at the conference and point to useful links and resources.

IPKAT TRIPs Post - http://ipkitten.blogspot.com/2004/06/ipkat-trips-light-fantastic.html

To Litigate or Innovate

It might be today�s most important IP question � �Litigate or innovate?� Donna Wentworth�s Copyfight blog collects three big IP hitters, Terry Fisher, Fred von Lohmann, and Kembrew McLeod, on exploring alternatives to common responses like mass lawsuits against filesharers and/or controversial and fast-tracked legislation like the Induce Act.

Copyfight post - http://www.corante.com/copyfight/archives/004597.html

Posted by dmk at 10:24 PM

July 12, 2004

The Clearest Picture of the Future Practice of Law Comes From . . . Non-Lawyers

Ross Mayfield wrote a post called Standard Weblog Employee Policy in which he lamented the current state of affairs for policies that govern employee bloggers. Ross's concern was not so much what should be in the policies (although he obviously has an opinion), but more the fact that there are no "standard" guidelines for these kinds of policies. What's worse, he fears, and I agree, is what will happen when lawyers jump in with deluxe blogger policies.

Ross sums up the concern as follows:

"Enter the lawyers. The problem is most lawyers didn't study under Lawrence Lessig or Jochai Benkler, read Cluetrain and Gonzo, and are card carrying members of the EFF. They come from the school of fear and greed. Just think of the billable hours possible for surveying every risk, asserting control and property and taking what they can from the market. They will come up with their own agreement, backed by their opinions. The human voice of the company will be muffled and the enterprise gains little benefit."

I'll add that the problem is further complicated when a company compartmentalizes the legal project as an "employment law matter." In that case, it really becomes a hit or miss proposition whether the lawyer drafting the policy knows anything at all about blogging and the blogging policy is likely to be modeled on the hardware and software use plicy or email use policy, whichever is handy. Even though I practice in the area of computer law and like to believe I have some knowledge of blogging and the related issues, I would predict that, in most cases, a company would not seek to obtain recommendations from someone like me. As a result, Ross's fears are more than warranted.

More specifically, he says:

"Right now, they can point to the Sun Policy on Public Discourse, Groove Weblog Policy and the evolving Corporate Weblogger Manifesto as examples. They can talk their executives into considering it by pointing to Jonathan Schwartz, me (heh) and Bill Gates any day now. But its still an emerging issue.

When an employee proposes external enterprise blogging, she needs to kill off policy debate by pointing to an open and accepted agreement. Either that or wait until a court decision on corporate exposure."

Although Ross gives the two options, it is clear that no one other than lawyers prefers the second option. The practices of lawyers are increasingly becoming a significant "friction" in processes that people would like to streamline. It's one thing when the friction we bring into the process is legitimate risk management that addresses real concerns and issues, but it's quite another thing when the "friction" is just plain "friction" that doesn't seem to help anyone out other than lawyers.

Ross suggests an approach where there may exist one or more approaches that are generally acceptable, given an employer's approach to legal risk management and its willingness to accommodate its employers, its ability to see the benefits of blogging, etc. In a manner similar to, for example, the GPL or the BSD License, a company might choose a standard approach and use a standardand easily (and cheaply) available agreement that matches its desired approach. Rather than have lawyers customize all sorts of elaborate language, the company could use lawyers to help them understand the legal risks of the different approaches and any unique issues that might need to be addressed.

Ross has stated something very important and Robert Scoble and others have picked up on the points he makes. Among other things, he has given us a good practical example of the ways that law and software do have some tendency to merge and the general concern (see, e.g., CAN-SPAM) that laws and lawyers trail too far behind where most people, not just technologies, are today. The longer lawyers offer only the option of waiting three or more years for a court to decide issues that everyone knows have practical solutions that can be quickly implemented, lawyers practicing in traditional ways risk becoming increasingly less relevant.

Mayfield's post should be studied carefully by lawyers. Increasingly, lawyers will see clients tire of waiting for lawyers to bring them solutions to new problems and seek to find solutions that have some industry-wide acceptance and ask their lawyers to work within the constraints of those solutions. For what it's worth, my own interests take me increasingly toward models of delivery of legal services that look more like software applications than the traditional document preparation that lawyers have done for years.

Posted by dmk at 12:53 AM

June 18, 2004

Missouri Nanotechnology - Standing at the Molecular Crossroads

Late last year, my friend and personal biotech guru and attorney, Kevin Buckley, and I wrote a white paper on the state of nanotechnology in Missouri. I wanted to bring it out to a wider audience, both becaue I think it is quite good and because I'd like to see our ideas get a bigger audience and produce some results. The paper is called Standing at the Molecular Crossroads: Report on Nanotechnology in Missouri.

If you are in a state that's working on bringing together and developing your nanotech industry and community, please feel free to consider, borrow and use our ideas (but please attribute them to us). We're also more than happy to talk to people in greater detail about the white paper, our perspectives and our more recent ideas.

Posted by dmk at 10:45 AM

June 16, 2004

Spread the Meme - A Balanced Approach to Copyright Reform

Via the Lessig Blog:

Well-known intellectual property law scholar Michael Geist (who can also write columns that non-academics can read and understand) has a new column that advocates a balanced approach to copyright reform and is an article that deserves a wide audience, says Larry Lessig, another well-known intellectual property law scholar (who writes books and articles that are a bit harder for non-academics to read (especially because of the too-tiny print in his first book, at least to these aging eyes) and understand.

I agree.

We may come at these issues from different places and want different results, but, if all interests have a seat at the discussion table and play a role in shaping the results, then we'll reach better results than the current state of affairs in the U.S. where many, many people believe that the entertainment industry drives all legislation in this area for its own benefit.

Why do I have my doubts that this issue will be discussed in the 2004 presidential campaign?

Posted by dmk at 09:31 PM

FTC Shows That People Are Getting the Lesson of the CAN-SPAM Act

From the excellent GigaLaw.com site:

FTC Says "Do-Not-E-mail" Registry Could Make Spam Worse

"A national "do not e-mail" registry would do little to prevent the proliferation of junk e-mail and could even make the spam problem worse, said the Federal Trade Commission in a report. The FTC was required to produce the report for Congress under a provision of the federal Can-Spam Act, which went into effect in January."

I gave a presentation that discussed spam last week. For my opening, I argued that the CAN-SPAM Act had all but eliminated the spam issue. I noted that since the enactment of the CAN-SPAM Act, as best as I can tell from the stats that I've found:

+ Spam now constitutes a miniscule 70% of all Internet email.

+ A mere 50% of spam contains viruses, spyware or other malware.

+ A whopping 0.3% to 1% of mass emailings comply with the CAN-SPAM Act

+ Spammers are cowering in fear from the zero prosecutions to date.

Ok, I was making a rhetorical point to get my audience's attention. However, the spam problem seems to have grown exponentiallly since the Act came into effect.

Putting together a "Do Not Spam" Registry seems like it would create the ultimate target for spammers who want to harvest "live" email addresses. I would expect that database to be penetrated, copied and distributed in short order. I can't imagine how violations of the list would be enforced and, as the 99+% non-compliance rate with CAN-SPAM suggests, how many expect that most spammers would care about the registry.

Oh, yeah. I forgot. We could get a few small players and well-intentioned individuals who couldn't figure out the rules or made little mistakes and were easy to catch. That will help.

Why not do some simple things that would help? Here are a few:

Stop automatically sending out "you sent a virus" warning messages - there's little chance these days that it actually came from the "sender of record" and it's fair to say that these messages now constitute a substantial portion of all spam and use up bandwidth for the rest of us. What's the point?

Stop opening attachments that you do not expect (even if they come from someone you know) or are not in a format you expect.

Stop clicking on links in unsolicited commercial email messages.

Stop opening messages you think might be spam and spend a minute or two learning about web bugs and other ways spammers can find that you have a live email address.

The bad news is that user behavior is what keeps spam rolling and growing. If you rely on spam filters, but use spammer-friendly habits with your email, you are part of the problem - like the driver with one foot pushing the accelerator and the other pushing the brake at the same time and wondering why the car isn't working right.

It's good to see the FTC willing to back away from a "create a new law" approach in this area.

Posted by dmk at 09:09 PM

May 24, 2004

Articles on CAN-SPAM Continue to Outpace Prosecutions

LawMeme points to GigaLaw's growing collection of over 30 articles on the legal aspects of the CAN-SPAM Act.

The GigaLaw collection is very useful for those of us conscientiously trying to follow the law for e-mailings that no one could reasonably believe were spam and wondering why our inboxes are filling with spam that does not comply with the law every day.

For further evidence of the sorry results from "well-intentioned" technology laws, take a look at Declan McCullagh's FBI plans spammer smackdown, which notes that there have been zero criminal prosecutions under CAN-SPAM. I'm also concerned that FBI resources that could be devoted to homeland security are seemingly being directed at spammers. Spam is a nuisance, but do we have the right priorities here?

Posted by dmk at 10:02 PM

May 12, 2004

Good Use of Lawyers in IT Projects

John Gliedman has an article in the May issue of Darwin Magazine called "First, Use All the Lawyers," that offers a good checklist of ways to use lawyers effectively in IT transactions.

His conclusion, which I heartily agree with, is:

"If you include your lawyer as an advisor to the business team early on, you can make sure that your deal starts off on a sound footing and that you are comfortable with the process that lies ahead."

Bringing in your lawyer late in the deal almost always results in higher legal costs.

Gliedman sets out four key areas in which lawyers can help th deal process:

1. The well-utilized lawyer can ask you strategic questions and help you achieve your goals.

2. The well-utilized business lawyer can give you process-related advice to help you get from Point A to Point B.

3. The well-utilized business lawyer works as part of the negotiating team.

4. The well-utilized business lawyer can document your intentions clearly.

The article is the latest in a series of excellent columns that run under the heading of "Legally Speaking" on Darwin.com.

Posted by dmk at 07:14 PM

May 11, 2004

Using IT to Comply with Sarbanes-Oxley

While Sarbanes-Oxley compliance is at or near the top of the list of corporate IT concerns, there has been little detailed discussion of the implications of Sarbanes-Oxley for how law firms handle their clients' information or for law firms themselves. Now, part of the reason for that may be that legal profession, fresh off a victory in a ruling that Graham-Leech-Bliley does not apply to lawyers (we'll leave the negative PR implications of that "victory" aside for now), remains confident that Sarbanes-Oxley will not apply to law firms.

However, I'm not sure that corporations spending millions of dollars on Sarbanes-Oxley compliance want to be so cavalier about the legal profession's notoriously less-than-air-tight approach to information security.

I collect good, practical articles on Sarbanes-Oxley compliance and have found a gem of a short overview called "Using IT to Comply with Sarbanes-Oxley by Elvia Novak. It's not a detailed article, but it strikes me an excellent high-altitude view of what's important.

The article can be found on the excellent SmartPros Accounting website. It's not often that you can say that a publication with articles for accountants is a must-read, but I've found the SmartPros e-mail newsletter a consistently great source of useful information and a regular part of my Monday morning reading routine.

Posted by dmk at 09:28 AM

May 04, 2004

New Issue of IP Memes Newsletter Released

I'm a contributing editor of TechnoLawyer's IP Memes newsletter (free subscription after registration). Yesterday, the new issue that I was responsible for was released.

The title of the new issue is "IP Memes: Spyware, The New Sport of Kings, Driver's Ed Movies ? and Other Hot IP Issues."

Here are a few of the items I cover in the newsletter:

PATENT LITIGATION: THE SPORT OF KINGS

This article is a must-read for the title alone. From the article: "Patent litigation is a growth industry. According to the American Intellectual Property Law Association, in cases where between $1 million and $25 million is at risk, a patent owner should expect to spend more than $2 million to litigate a patent through trial and appeal. Where more than $25 million is at risk, costs climb above $4 million. All this, to litigate a patent that an attorney likely wrote in a week or two, and that the U.S. Patent and Trademark Office probably spent less than 20 hours examining." [Note: A free registration might be required, but it's worth the effort.] Technology Review Article

THE NEW SURVEILLANCE

Sonia Katyal's winning entry for the 2004 Yale Law School Cybercrime and Digital Law Enforcement Conference writing competition addresses the intersection of anti-piracy efforts and privacy concerns. From the abstract: "In the past, legislators and scholars have focused their attention on other, more visible methods of surveillance relating to employment, marketing, and national security. Piracy surveillance, however, represents an overlooked fourth area that is completely distinct from these other types, yet incompletely theorized, technologically unbounded, and, potentially, legally unrestrained. The goals of this Article are threefold: first, to trace the origins of piracy surveillance through recent jurisprudence involving copyright; second, to provide an analysis of the tradeoffs between public and private enforcement of copyright; and third, to suggest some ways that the law can restore a balance between the protection of copyright and civil liberties in cyberspace." Social Science Research Network Electronic Library Article

LEGAL PROTECTION OF CULTURAL PROPERTY

A useful outline of resources relating to the protection of important cultural treasures, international trade in cultural property, and illegal traffic in art and antiquities. A cultural legacy is an important thing not to lose. LLRX.com Article

TECHNOLOGY TO WATCH - ON DEMAND COMPUTING

Those with sharp eyes will notice quite a bit of the "application service provider" model in the new buzzword "on demand computing" that is a primary technology initiative of IBM. The concept, however, has made inroads wel outside the IBM marketing world because of the attractiveness of cost-cutting opportunities. Watch for a big push and greater visibility for the notion of on demand computing. It is an important concept with lots of implications for software licenses, IT agreements and intellectual property rights of all kinds. The term is also expanding to take in the notions of "grid computing," "utility computing," and "virtualization," with applications in e-commerce, bioinformatics and other hot areas. ZapThink Article & IBM Article

FILE-SHARING PROHIBITIONS AND UNINTENDED CONSEQUENCES

Edward Felten has posted a short but fascinating discussion on the Freedom to Tinker blog about file-sharing, stopgap measures and the negative effects stopgap measures have on security. The article will get you thinking in some new ways. Freedom to Tinker Article

AT LEAST WE HAVEN'T GONE QUITE THIS FAR ON INFRINGEMENT EDUCATION -YET

John Farmer of the Leading-Edge Law Group PLC suggests the use of intellectual property videos similar to the old high school driving movies, i.e., showing the death, carnage and mayhem that results from poor patent, copyright and trademark planning. It's an attention-getting device (especially for those of us who have seen those movies) for a good discussion on the benefits of intellectual property management and planning. PHOSITA Article

Posted by dmk at 11:00 AM

April 29, 2004

The Trademark Blogger at INTA

Marty Schwimmer is the author of the excellent The Trademark Blog, a premier example of the focused-topic legal blog. Marty is also a super-nice person. I was trying to convince Marty the other day that he is in fact a blogging celebrity and that the response he gets when he attends the INTA (International Trademark Association) meeting in Atlanta will demonstrate that to him.

Unfortunately, his ID badge will say MARTY SCHWIMMER, not THE TRADEMARK BLOGGER (an important consideration for those of you currently in the process of naming your blogs). I suggested that he changed his badge to MARTY "The Trademark Blog" SCHWIMMER.

Marty posted today about the INTA meeting and invited all his readers to introduce themselves and say hello.

I won't be at the INTA meeting, but I will say that Marty is definitely someone that you should try to meet if you are there, especially if you have any interest at all in blogging. Please help make him feel like the celebrity he should be.

Posted by dmk at 11:01 AM

April 05, 2004

Sixteen Simple Rules for Negotiating IT Contracts

My Practical Technology Contract Review News is now a subscription-only newsletter. I sent out the latest issue this evening and it contains a long article based in large part on a recent experience I had where an attorney broke all of these "rules" in a single conference call.

The article discusses each of these rules in detail and also sets out my approach to contract negotiations. I thought I'd share the list of my simple rules and the conclusion of the article. Subscription information is available through the above link.

Sixteen Simple Rules for Negotiating IT Contracts

1. Know the Purpose of the Meeting.
2. Discuss Your Role in the Meeting with Your Client Ahead of Time.
3. Agree on Your Signals.
4. Do Not Confess Your Lack of Preparation.
5. Do Not Bluff on Your Knowledge or Your Experience.
6. Know When to Move On.
7. Understand Standard Negotiation Practices.
8. Avoid High Pressure Sales Techniques.
9. Avoid Explaining Basic Law School Concepts and Turning Everything into Legal Jargon.
10. Remember Business People Are Not As Fascinated by Legal Issues As Lawyers Are.
11. Don’t Be a Know-it-all
12. Don’t Be Condescending.
13. Don’t Cut Off or Undercut Your Client.
14. Don’t Interrupt or Talk Over the Other Party.
15. Don’t Imply That You Don’t Trust the Other Side For No Reason.
16. Remember That It’s About the Deal, Not About You

Conclusion. It is no easy chore to try to follow each of these rules, but they give lawyers a good target to shoot at and clients a good checklist to use in preparing and evaluating their lawyers. Notice that all these rules can be followed no matter how easy-going or aggressive a lawyer might be. Those tactics can and do vary from one deal to the next and you can be extremely aggressive and still follow every one of these rules. These rules create a solid foundation from which you can advance a deal, protect clients and treat everyone in a way that will lead to good ongoing relationships. The contract is important, but ultimately the resulting business relationship matters most.

Posted by dmk at 09:43 PM

March 18, 2004

What Lawyers Need to Know About the Open Source Licenses

My new article on the Open Source licenses has appeared in the February 2004 issue of the Journal of Internet Law. The article is called "What Lawyers Need to Know About the Open Source Licenses." It is the practical and in-depth article on the Open Source licenses that I've been wanting to write for several years. I'm pleased that it found a home in one of the most-read publications for computer lawyers.

Unfortunately, the Journal of Internet Law is a print publication only. However, I have eight extra copies of the issue in which the article appears. As a benefit for readers of my blog, I'll send a copy of the issue to each of the first eight people whose e-mails requesting a copy I receive (dmk @ denniskennedy.com).

Otherwise, you may obtain reprints from the Journal of Internet Law, find a copy in a law library or, even better, obtain my original version of the article as part of my new "Practical Principles of Legal Tech and Tech Law (1996 - 2003)" CD - a collection of nearly 500 pages of my best articles in the PDF format.

I've also collected my well-known "online book" I call "Dennis Kennedy's Legal Technology Primer" and am also making that available in the PDF format. Both collections will soon be available from a number of sources as downloadable eBooks. Until then, you can obtain the collections in the old-fashioned way - by mailing me an order form with your check. If you are interested in licensing my original version of the article for distribution in your organization, please contact me. Because I do appreciate there is some irony involved here, I expect to make a version of the article available for free sometime later this year.

Remember that I keep a list of Open Source license law resources on my website at http://www.denniskennedy.com/opensourcelaw.htm.

Posted by dmk at 10:45 PM

February 09, 2004

New IP Memes for 2004

TechnoLawyer.com has launched the 2004 volume of the IP Memes Newsletter, which "consists of technology-related intellectual property 'memes' — IP issues that have just begun to surface and may soon become important legal issues."

In 2003, Gail Standish, Kevin Grierson and I (along with a lot of behind the scenes helps from the TechnoLawyer staff) co-wrote each week's issue.

In 2004, we are adding two new stellar contributors, Kurt Calia and world famous legal blogger, Denise "Bag & Baggage" Howell, and taking a different approach where each of us will write entire issues on a rotating basis. I drew the short straw and led off 2004 with the issue that came out today.

This issue covers the Eolas patent issue, the current debate over software patents in the European Union, the recent Japanese court decision that awarded the inventor of the blue LED 20 billion yen, the useful resources at the US Department of Justice Computer Crime and Intellectual Property Section, new digital rights management developments in wireless, and intellectual property issues in the virtual gaming world.

Here's the good news - you can subscribe to the IP Memes newsletter for free simply by joining the TechnoLawyer Community (a reasonably convenient registration process is required). Even better news - a good number of other features and newsletters related to the use of technology in the practice of law are also available to members of the TechnoLawyer Community. Check it out.

Posted by dmk at 09:28 PM

February 03, 2004

CIO.com: Software License Disputes: You Sue, You Lose

Scott Berinato's CIO.com article, You Sue, You Lose: The High Cost of Litigation is such a direct and to-the-point discussion of the no-win world of litigating software and IT project disputes and the necessity for negotiating good contract language that I wish that I had written it as a marketing piece for my legal practice.

Here's the summary:

"The rise in lawsuits over failed software projects demonstrates a truism — everyone loses in court. CIOs can avoid a legal morass by doing up-front contract work to protect their companies' interests.

The money quote: "What shocks lawyers about software project disputes is the utter avoidability of the complaints. These suits are about the failure of CIOs and other executives to legally prepare for failed projects."

Amen. This article is an excellent primer for anyone working on, reviewing or negotiating an IT project agreement of any kind. Focusing on some key issues at the front end of the process may well save you heartache down the road. It will give you some solid, practical information of the kind that I try to provide on a regular basis in my Practical Technology Contract Review News.

Posted by dmk at 09:39 AM

January 27, 2004

Good Summary of 2003 Cyberlaw Cases

As far as I can tell, this article on cyberliability cases in 2003 by Jeffrey Cunard and Jennifer Coplan of Debevoise & Plimpton is available for free from the well-known continuing legal education provider PLI.

PLI offers several free newsletters, including one called the Lawyer's Toolbox, which gives you highlights from seminars and links to excellent program materials. It's a very good resource that I doubt that many people know about.

Posted by dmk at 10:45 AM

December 30, 2003

Announcing the Debut of DennisKennedyLaw.com

I've just finished putting together a new website just for my legal practice at www.denniskennedylaw.com. It's hosted and build on templates and tools provided by Martindale-Hubbell.

For those who want to know what my legal practice is, the new site is the place to find out. I wanted to clearly define my legal practice by separating it from the other things that I'm doing (consulting, speaking, writing, products), which will all stay (for now) at the DennisKennedy.com website.

I also wanted to experiment with the Martindale-Hubbell approach to websites. I'm quite pleased with the process and results, although as someone long used to writing my own HTML, it can be a little frustrating not to be able dig into the code to get the results you want. On the other hand, I got a consistently-designed site in a very short time.

This templated approach to web design is a good development - I am thrilled with the way Movable Type generates my blog.

My experience also validates, in my mind, the "$80 necktie theory of web design" proposed by the ever-wise Jerry Lawson here and here.

Jerry says:

"the increasing popularity of high quality templates, templates, driven by the database and cascading style sheets used in sophisticated blog software, will make the graphics and layout part of web site development increasingly easy and inexpensive. We will come to consider our blog's graphic look and layout to be no more important than men consider their neckties. . . . The average clothes designer lacks the style of Ralph Lauren. Mass marketing lets many people own Ralph Lauren clothes. Similarly, most web site designers lack the style sense of the top designers. Clever use of templates will make the style sense of the world’s absolute best designers as affordable as a Ralph Lauren off the rack necktie."

In my case, Martindale-Hubbell gave me a template that had a reasonably modern look and created a good container for the content I wanted. It's comfortable necktie that I'm quite comfortable to wear in a professional setting.

Check it out and let me know what you think.

Posted by dmk at 09:54 PM

December 29, 2003

A Good Summary of Internet Law in 2003

Doug Isenberg, founder of the great GigaLaw.com site, writes a good retrospective on developments in Internet law in 2003. He discusses anti-spam laws, pop-up ads, file-sharing, domain names, taxes and other 2003 legal issues. A handy and useful summary.

Posted by dmk at 01:21 PM

December 15, 2003

Open Source Families and Facts

A good day for finding helpful resources on the Open Source licenses.

First, my article, "Open Source Families and Facts," has appeared on UnixReview.com. It's a useful little article that sorts the Open Source licenses into four families and then illustrates some of the key features and differences among the various families. I also include a section on "Ten Practical Tips for Choosing, Using, and Living with an Open Source License." It's exciting for me to be published in a techie publication rather than a legal publication for a change.

Also, Pamela Jones's post called "The GPL is a License, Not a Contract, Which is Why the Sky Isn't Falling," a helpful analysis of the "viral effect" question that arises with the General Public License. I'm not sure I buy the license vs. contract argument in its entirety, but I think that the discussion helps people understand the "viral" issue and shows how derivative works under the GPL should be handled.

A third greaat find is Joel Spolsky's "Biculturalism," a fascinating discussion of the differences between UNIX and Windows programmers that occurs in the context of Spolsky's review of Open Source guru Eric Raymond's new book, The Art of UNIX Programming. Spolsky's essay can be read as a fascinating response and follow-up to Raymond's seminal The Cathedral and the Bazaar.

I keep a page of Open Source license resources, including the law review article I wrote on the Open Source licenses in 2001 (watch for an updated, less-academic version of the article to appear soon in the Journal of Internet Law), on my web site.

The Open Source license are very important and, as Pamela Jones points out, it is also important that lawyers understand these licenses because there is some FUD out there. I hope that my articles and these resources help clarify some of the issues.

Posted by dmk at 07:19 PM

December 03, 2003

Good Article on the New Nanotech Act

A very good article in Small Times does a great job of summarizing the new nanotech act signed into law by the president this week.

One of the authors, Howard Lovy, has a great blog on nanotech developments called "Howard Lovy's Nanobot.

Posted by dmk at 09:25 PM

Hijacked Computers Responsible For One-Third Of All Spam

TechDirt reports that one-third of spam is sent from "zombie" computers that have been taken over as a result of "Trojan horse" programs.

The important lessons:

1. Even if you think that you are too small or uninteresting for the bad guys to want to break into your system, there are many other reasons than getting your data that make your unsecured computer an inviting target, no matter who you are.

2. Good security practices are a social responsibility of all users of the Internet.

3. I was recently on a panel with an FBI agent who said that some Eastern European hackers command networks of thousands of "zombie" computers. More worrisome, no one knows exactly what damage these networks might produce or exactly why they have been created.

4. At the very least, implement the recommended three basic security steps.

5. Look for Trojans on your computer with appropriate anti-virus or spyware detection software.

Posted by dmk at 07:52 PM

Legal Is from Mars, Security Is from Venus

David Holtzman wrote a very good little article for CSO magazine called "Legal Is from Mars, Security Is from Venus," which points out the often-too-obvious fact that many times lawyers and IT people speak in completely different languages. Holtzman makes some good observations and draws a good conclusion - we can learn from each other. I'm consistently shocked by the number of lawyers who are unfamiliar with even the language of computer security, let alone the techniques and issues. I sometimes feel like a long lost friend who has finally returned when IT people realize that I can talk in their language and understand what they are saying and their points of view. I'm afraid to think about what happens in contracts and other legal work when there isn't even a basic level of understanding.

Posted by dmk at 07:39 PM

December 01, 2003

December Issue of Dennis Kennedy's Practical Technology Contract Review News

The latest issue of Dennis Kennedy's Practical Technology Contract Review News features the article "Common Concerns with Confidentiality Clauses" and includes other tips and resources useful to all who deal with information technology agreements, licenses and other technology contracts.

Announcement:

As a result of several recent interventions staged by friends and colleagues concerned that I give away too much of my content, I will be making several changes in the near future that will greatly reduce (but not eliminate) the amount of free content I provide on my web site and elsewhere.

Starting with the January 1, 2004 issue of "Dennis Kennedy's Practical Technology Contract Review News," access to the newsletter will require a US$125 per 12 months subscription. The 2003 newsletter archives will also be available for a fee. The newsletter continue to be free to (1) my clients and (2) subscribers as of December 1. As a special offer to the readers of my blog, I will give anyone who subscribes on or before December 15, 2003 and mentions this blog a free 12-month subscription for 2004.

Posted by dmk at 03:49 PM

November 04, 2003

Ten Ways to Address Security Concerns in IT Contracts

I've posted the November issue of Dennis Kennedy's Practical Technology Contract Review News on my web site.

The feature article this month is called "Ten Ways to Address Security Concerns in IT Contracts," a fairly self-explanatory title. In addition to pointers to some useful resources, I also provide a tip on protecting customer data in contracts and discuss a few details about survivability clauses.

Posted by dmk at 03:55 PM

October 01, 2003

New Issue of My Newsletter - Wise Warranty Choices

The October issue of Dennis Kennedy's Practical Technology Contract Review News is out.

This month's feature is called "Wise Representation and Warranty Choices" and deals with a number of standard warranty provisions for IT and IP licenses and agreements, with some tips on how to improve the language you are likely to see. There are also other tips, links and resources.

Posted by dmk at 03:27 PM

September 24, 2003

Does Patent Litigation Stifle Innovation? Ask Wilbur Wright

There's an ongoing debate about the role that patents play in promoting creativity and innovation. The Washington Post has a fascinating story commemorating the 100th anniversary of the Wright Brothers' first flight, and suggests that Wilbur Wright may have paid the ultimate price in patent litigation.

The story is also interesting for its discussion of the history of a prominent patent law firm and the attitudes and approaches that lawyers had to their clients in the early part of the century.

A quote:

"In the interest of full disclosure, I must tell you that the Wright Brothers case went on for so long it may have killed Wilbur in the process. A little known fact is that we dragged him to Boston for a deposition, where he became ill. He never recovered."

Worth thinking about is another quote from the article with the words of Wilbur Wright:

"Wilbur Wright died of typhoid fever in May 1912. His last letter to Fish complained about how long the case was taking. 'Unnecessary delays by stipulation of counsel have already destroyed fully three fourths of the value of our patent,' he wrote on May 4, from Dayton, Ohio. 'The opportunities of the last two years will never return again. At the present moment almost innumerable competitors are entering the field, and for the first time are producing machines which will really fly.'"

Posted by dmk at 04:27 PM

September 23, 2003

Intellectual Property Law in Two Pages

Professor John R. Kettle, III of the Rutgers School of Law has prepared a great two-page chart summarizing intellectual property law called "What Every Litigator Must Know About Intellectual Property." By the way, when you see an article on law that includes something like "A Litigator's Guide to . . ." you should know that you have found the legal literature equivalent to the "for Dummies" books - that's not a bad thing (although I enjoy getting in the occasional dig against litigators), but it indicates you will get a short, easy to understand and to the point explanation of the subject matter.

Professor Kettle's chart is a very useful resource and will be helpful to lawyers and non-lawyers alike. He prepared the chart in connection with a Practising Law Institute (PLI) coursebook also called "What Every Litigator Must Know About Intellectual Property, which I also recommend to your attention.

Posted by dmk at 11:48 AM

September 22, 2003

Creative Commons License Warranty - Follow-up

There has been some follow-up on the Creative Commons license warranty issues raised by me and others recently.

[Note: I would have simply made the following points as a comment to the Creative Commons blog, but making a comment there seems to require acceptance of a CC license for the comment.]

Glenn Otis Brown, who, to the best of my knowledge after reasonable inquiry, is at the Creative Commons or generally able to speak on its behalf, says:

"And again, all the hysteria about getting sent to the poor house is way off base. Read my old posts on the subject again. (1, 2, 3.) There is a "reasonableness" modifier on the warranty. Liability is not unlimited to the ends of the earth. It's simply not."

At risk of being characterized as "hysterical" on the subject, I want to point out that the qualifying language of "reasonable inquiry" to which Glenn refers simply limits the instances in which a licensor might be found liable for a breach of the warranty; it has nothing to do with a cap on the amount of damages based on that liability, even if that is what was intended.

Going to the poorhouse still remains a possibility under the current language, although only in cases where there has not been "reasonable inquiry," whatever they may be found to mean.

Glenn goes on to say:

"Licensors should make a reasonable effort to verify that they're not licensing someone else's content, or that if they have, they're making a fair use. If in doubt, they should tell the world what pieces of content in their licensed work they're not sure about. If they're still in doubt, they shouldn't license their work. That's it."

I think that Glenn meant to say "using" rather than "licensing" in the first sentence, but that statement captures my point of concern. Potential licensors should be conspicuously alerted to the warranty provisions and informed that using the CC licenses requires making important choices with significant legal consequences.

That, by the way, is not a bad thing. My real concern has been that the atmosphere around the Creative Commons licenses promotes a "join up with the in-crowd" mindset when in fact people might be better advised to go slow - especially authors and content creators, given that from Glenn's comments, it is definitely not the intent of the CC licenses to maximize protection for authors.

Karl-Friederich Lenz has done a nice job of commenting on these issues here and here and here.

The last comment by Professor Lenz is in response to the point that the CC Licenses themselves explicitly contained an as-is clause and a disclaimer of all warranties, which was somewhat ironic. Glenn's comment on the CC's change to that language remains unconvincing to me, but I think even the changed language brings home the point that authors are very reluctant to give warranties of any kind when they are licensing content without any compensation (and even when they are).

The bottom line for me is that the waranties are still being discussed and, as a result, I believe the purposes of the CC licenses will be better clarified so that we can make a good decision about when and if they may be appropriate for us. For now, I personally will not use the licenses, laudable as their intent may be.

Posted by dmk at 05:34 PM

Four Legal Land Mines for CIOs

Kathleen Melymuka has a very solid primer in Computerworld on the big ticking legal timebombs in the IT landscape called Legal Land Mines for CIOs. It's a straightforward piece that highlights issues but does not delve into them in depth.

She covers security, data retention, privacy and software license violations. Each topic is followed with a brief section on why you should care and what you should do.

Pass this article on to your favorite CIO or anyone else who may have an interest in practical legal issues in the IT area.

Posted by dmk at 02:30 PM

September 17, 2003

Second Pair of Eyes - Services for Lawyers

I can't even count the number of people lately who tell me that I should be offering my services to other lawyers who are unfamiliar with IT and e-commerce contracts.

Even I can get the message.

As a result, I'll be doing something new, which I call "A Second Pair of Eyes." Essentially, I will review contracts and agreements related to IT contracts, software and IP licenses, e-commerce and other Internet agreements, for other attorneys who would like to get another set of eyes to check to see if they've missed anything major, mishandled an important issue or left important issues unaddressed. I'll do that with respect to agreements being drafted, agreements being negotiated, and agreements being evaluated and interpreted for further action. And, I'll do that on a flat fee or hourly basis. The idea is to consult with you and help you out, in the background.

The problem I see is that most attorneys do not see documents in this area often enough to be comfortable working with them or reviewing them. Many attorneys also have little understanding of the underlying technologies and the common issues, let alone the areas that are commonly subject to negotiation.

Sound appealing? Just get in touch with me and we can talk about your needs.

Posted by dmk at 01:09 PM

September 15, 2003

See Me on AITP Expert Panel on Computer Security in October

I'll be one of the speakers on what promises to be a great session on computer security at the Chief Information Officer Security Forum on October 25, 2003 in St. Louis. It's a great panel and there will be plenty of time to cover a wide range of issues. I'm excited to hear what everybody else has to say, let alone be a speaker too.

Here's the press release with more details:

AITP CONFERENCE TACKLES INTERNET SECURITY TOPIC

How does your information technology department protect office computers from being invaded by the latest worm, virus or Trojan horse? How are you going to handle the Sarbanes-Oxley Act? What are the legal issues involved?

Internet security is just one of the hot topics that will be discussed at the 2003 Association for Information Technology Professionals Conference to be held Thursday through Saturday, Oct. 23-25, at the Millennium Hotel in St. Louis.

Information technology executives responsible for security are invited to the highlight of the conference, the Chief Information Officer Security Forum, from 9 a.m. to 2:30 p.m., Saturday, Oct. 25. A panel of experts from a variety of industries will discuss risk management, Web security, wireless security, legal and regulatory issues and best practices.

“Security is not just a technological issue anymore,” said Attorney Dennis M. Kennedy, one of the CIO Security Forum panel members. “There are legal implications of your security practices. With virus authors now facing prison time, no one should be surprised to see lawsuits against businesses that do not take adequate procedures to prevent the spread of viruses, worms and other malicious software.”

The panel also includes experts from MasterCard International, Omni Tech, SBC Services, Washington University, Novell, People’s Energy, FBI St. Louis office, A.G. Edwards, and Robert Half Technology.

“This diverse panel was put together with the purpose of demonstrating to attendees that all industries have security issues and that all security issues are not created equal,” said Christine Leja, Security Forum coordinator and chief information officer at Southwestern Illinois College in Belleville, Ill. “Our hope is that critical business industries are represented so that everyone in the audience can relate their set of issues to those of a panel member’s.”

Leading up to Saturday’s CIO Security Forum, conference participants can choose from three seminar tracks that will take place Thursday and Friday, Oct. 23-24.

The Security track will include discussions on trends, case studies, the myths of HIPPA Security and much more. This track is presented by Data Connectors of St. Louis.

The Management track will cover topics such as disaster recovery, IT portfolio management, and successful project Management.

The Technical track will address the topics of application management, trustworthy computing, and network security.

Registration information and a complete list of seminar topics and speakers can be found online at www.aitpstlouis.org/conference.

Posted by dmk at 11:24 AM

September 04, 2003

Contract-oriented Architecture - SLAs

IT contracts really do matter. It makes little sense as a business or legal matter to enter into vague service level agreements. This piece on the Loosely Coupled weblog does a very good job of concisely explaining this point and suggests a much better way to approach these agreements.

Posted by dmk at 09:49 AM

September 02, 2003

Issue 5 of My Newsletter - Checklist of IP Ownership Issues

The latest issue of my Practical Technology Contract Review News is now on my web site. The feature article is called "Ten Key Intellectual Property Ownership Categories You Must Understand" and gives an overview of my approach to uncovering and dealing with intellectual property ownership issues in technology contracts. As ever, my focus is on the practical issues. The issue also includes some good links and tips.

When I was watching the Nascar Southern 500 this weekend, a practice that has been condemned by commentators who seem to advocate only personality-free blawgs, I started to think about the whole Nascar approach to sponsorship and advertising. My only logical conclusion: maybe it's time to find a sponsor or two for some of my efforts, such as my influential newsletter with a good and growing audience of people involved in technology law.

Interested? Let's talk.

Posted by dmk at 02:17 PM

August 25, 2003

Open Source Software Law Blog

I ran across Rod Dixon's Open Source Software Law blog, which looks like it may become a premier "go to" site for coverage of Open Source legal issues.

Since I have been feeling that I have inadequately covered Open Source license legal issues on my web page devoted to these issues, it's great to find a site focusing on comprehensive coverage of news and developments.

Posted by dmk at 11:04 PM

August 01, 2003

New Issue of My Newsletter Released

"What Did I Really License?" is the lead article in the latest issue of Dennis Kennedy's Practical Technology Contract Review News. Check it out.

Posted by dmk at 06:07 PM

July 23, 2003

Missouri Biotech: From Burbank to Biobelt

A week or so ago my friend and personal biotech guru, Kevin Buckley, invited me to a bill signing for Missouri House Bill 688, which Kevin played a key role in drafting. The new law is pretty cool - dedicating a portion of Missouri's tobacco settlement funds to life sciences research and development.

His invitation prompted me to pull out the copy of Matt Ridley's Genome that I had been wanting to read for a while. As I read a chapter on Gregor Mendel the night before the signing, I found myself wondering whatever happened to all the notes and research that Luther Burbank did with plants. I made a mental note to check into that.

The next day at the signing, Kevin and I were talking with Dennis Roedemeier of the Missouri Department of Economic Development and, much to my surprise, he started talking about Luther Burbank.

As it turns out, Burbank was so impressed by the work at the Stark Brothers nurseries in Louisiana, Missouri (still a major seed and plant supplier) that he assigned them his patents and materials. Part of this fascinating story is told in this paper written by Dan Kevles for a Yale Law School legal theory workshop.

Missouri has been billing itself as the "Biobelt" recently, which seemed a bit of an overreach to me (because I didn't know the history), but, as I now consider the lineage of Burbank and Stark Bros., the work of Peter Raven at the Missouri Botanical Garden, and the world-renowned work on Washington University, Monsanto and other Missouri entities in the plant sciences, that moniker now seems quite fitting.

There is no one who is more enthusiastic about the future of biotech in Missouri than my friend Kevin Buckley and his enthusiasm grew by leaps and bounds as we heard this story. I thought that I might even be driving with him out to Stark Bros. that same afternoon, but we're saving that for another day. Given the Burbank pedigree, the great history of Missouri biotech seems highly likely to evolve into quite a future.

By the way, this was my first bill signing. Governor Holden won a vote by personalizing an autograph to my daughter and giving her a signed copy of the bill and the pen he used. Thanks to the governor for letting me score some major Dad points.

Posted by dmk at 09:31 PM

July 01, 2003

Issue #3 of Practical Tech Contract Review News

The newest issue of my monthly Practical Technology Contract Review News email newsletter has been released. It features an article called "The 5 Ws of License Grants" and some other useful resources. The URL for the online version is http://www.denniskennedy.com/ptcrn3.htm.

Posted by dmk at 12:51 PM

June 23, 2003

Useful Sarbanes Oxley Resources

Companies are increasingly finding that the implications of dealing with the corporate accountability requirements of the Sarbanes Oxley Act are larger and thornier than they ever expected. I thought I'd pass along some links to resources that I've found recently that are good starting points for dealing with Sarbanes Oxley Act issues, especially from the IT point of view. Five Things IT Needs To Know About Sarbanes-Oxley Compliance (CIO.com); Sarbanes-Oxley: Tech to the Rescue? (CFO.com); Sarbanes Action Plan (Computerworld); Surviving Sarbanes-Oxley (Optimize Magazine); Making Sarbanes-Oxley Pay: Achieve an ROI from Regulatory Compliance (IntelligentBPM.com); and Sarbanes-Oxley Information Center (PriceWaterhouseCoopers/CFODirect.com).

A good summary of the current state of affairs is found in the Computerworld article:

"'There's a tremendous amount of confusion'" about what IT should be doing to ensure compliance with Sarbanes-Oxley, says John Hagerty, an analyst at AMR Research Inc. in Boston. A recent AMR poll of 60 companies found that while 85% are anticipating changes in system and application infrastructures, an equally whopping 80% are unsure of what the changes will be."

Posted by dmk at 10:24 PM

June 16, 2003

Missouri Enacts UETA

Possibly influenced by the article Chip Fendell and I wrote called "Electronic Signatures In Missouri: Moving To UETA Or Staying With E-SIGN," published at the end of last year in the St. Louis Bar Journal, Missouri has just joined the vast majority of states that have enacted the Uniform Electronic Transactions Act. The ever-excellent BeSpacific.com blog points to a set of PowerPoint slides on UETA and UCITA (the Uniform Computer Information Transactions Act) and their role in electronic commerce from Professor Patricia Brumfield Fry, who played an instrumental role in the UETA drafting process.

The slides are a good intro to the laws. I also like our article for basic UETA coverage, but I may be biased on that topic. I'll note that Chip and I's July 2001 article on UETA seems to show that we were too far out ahead of the curve, but by stubbornly refusing to drop the topic, we managed to get another publication with a better article and better results - well, at least the article was closer to the actual passage of the act than the first one was.

Posted by dmk at 10:40 PM

June 04, 2003

PatentWork.com

Speaking of friends of mine starting new things. My buddy, Dan Klotzer, is a super-smart physicist and a patent agent. He has his own patent agent business and launched his web page today. One of the things I like about Dan is his desire to put technology to work for the benefit of disabled people, including with inventions of his own.

Posted by dmk at 08:13 PM

June 02, 2003

Practical Technology Contract Review News, Issue #2

Issue #2 of my free email newsletter, Practical Technology Contract Review News, is now available. The newsletter covers practical matters relating to technology contracts and software licenses and includes my checklists, resources and other helpful tips. In this issue, I address the seemingly mundane, but critically important when a dispute arises, issue of how to review and negotiate definitions and what to ask for in the definition sections of your contracts.

Posted by dmk at 05:03 PM

May 19, 2003

Revolution OS DVD

Many people would like to get a solid understanding of Open Source and Free software and, unfortunately, have not found a good, easy way to do so. Even my law review article on the Open Source licenses probably won't do the trick for most people, much as I hate to admit that.

I just watched today a DVD of a documentary called "Revolution OS" that is an excellent introduction to what is going on in the Open Source Movement, the Free Software Movement, Linux and the licensing and IP implications involved. It tells the story well, through interviews with most of the major players. I thoroughly recommend this DVD as an introduction to these topics. My only critique might be that it is a little light on the MIT/BSD family of licenses, but, in fairness, the focus of the film is on the GPL and Linux.

Posted by dmk at 08:44 PM

May 12, 2003

Companies Unprepared for California Data Privacy Law

Every piece of legislation directed at technology seems to have unintended consequences. I mentioned last week that companies are now stepping up to unintended consequences and costs of the Patriot Act. Add another to the list.

Jaikumar Vijayan's article in ComputerWorld suggests that a new California Data Privacy Law intended to protect Californians against identity theft may have wide-ranging and unexpected consequences for any company doing business in California. In simplest terms, a company may have an obligation to notify California citizens in the event of a security breach that might lead to identity theft. But it's not so simple. As the article indicates, some have found the statutory language ambiguous and a company that notifies only Californians of a security breach invites a public relations nightmare.

If that's not fun enough, imagine 50 different state identity theft laws, plus federal laws on the subject as well.

Posted by dmk at 09:36 PM

May 09, 2003

The Rising Cost of Patriot Act Compliance

If you want to find classic examples of unintended consequences just look at what happens when legislation and technology mix. The aims and intentions are usually laudable, but law do not seem to be able to keep up with technology and legislators seem equally unable to foresee the consequences of new statutes and regulations.

Tamara Loomis's New York Law Journal article, "The Rising Costs of Patriot Act Compliance," gives us some more examples and more expensive news for financial institutions and other businesses who had a hard enough time navigating through the shoals of Graham-Leach-Bliley and HIPAA.

She points out: "A year and a half later, many experts say we may never know whether the law is working as intended. Yet, effective or not, it is now an expensive fact of life for the financial firms that fall within its gamut.Although still a moving target at this point, the cost of compliance is expected to be staggering. According to research firm TowerGroup in Needham, Mass., securities firms alone will spend nearly $700 million on compliance over the next several years. The list of tasks is long and still growing. Just last week, the U.S. Treasury Department, the agency administering the new law, issued seven new sets of Patriot Act regulations."

Posted by dmk at 11:42 AM

April 24, 2003

Postcards from the Edge

Law.com has a very good collection of articles on innovative ways five featured companies are using their intellectual property. As Mark Voorhees says in his introduction to the articles, "But there is perhaps one common element in these tales. The lawyers are playing against type. . . . They don't teach this stuff in law school." Highly recommended reading.

Posted by dmk at 09:59 AM

April 22, 2003

Practical Protection Practices for Your Intellectual Property

A great article in CSO (Chief Security Officer) Magazine covers the practical "where the rubber meets the road" issues of protecting a company's IP on an every day, in the trenches, basis. The article contains excellent examples of what companies like Sony and W. L. Gore do to protect intellectual property through technical, administrative and policy approaches. It all starts with thinking of IP as "intellectual capital."

Posted by dmk at 02:46 PM

April 15, 2003

Happy HIPAA

To celebrate the official April 14 HIPAA privacy deadline, two useful overview resources:

HIPAA Basics: Medical Privacy in the Electronic Age from the Privacy Rights Clearinghouse

and

Many Unaware of Medical Records Privacy Rules

I'm keeping a list of HIPAA resources at http://www.denniskennedy.com/hipaa.htm.

Posted by dmk at 12:03 AM

March 26, 2003

How CIOs Are Responding to Economic Pressures

In tbe CIO Roundtable--Leadership for Tough Times, 5 CIOs discuss their responses to current economic pressures and the emphasis on value. Among the items discussed: outsourcing, maintenance license renegotiation and reduced service levels for cost cutting purposes. This economic reality brings to the surface a legal reality: each of these items raise difficult and important legal issues that can and should be addressed up front.

Posted by dmk at 10:32 PM

March 18, 2003

Open Source in the Corporate Environment - Practical Issues

I found two great articles today on the practical issues involved in using Open Source software (Linux, et al.) in the corporate environment.

The first comes from the ever useful CIO Magazine (free to qualified subscribers) and is called "Your Open Source Plan." The abstract says, "Once a toy for geeks, open source is slowly but surely filtering into the enterprise and transforming the way software is designed, sold and supported. And any CIO without an open-source strategy in 2003 will be paying too much for IT in 2004." This article is as good a piece as I've seen on practical aspects of Open Source in the corporate enterprise, and includes a good number of actual "from the trenches" reports. Highly recommended.

The second, called "Free and Clear?" by Sanjay Murthi in Intelligent Enterprise, sets out a good summary of business issues involved in selecting Open Sources options, concluding that looking at only licensing costs is unwise indeed. It's a good companion piece for the optimistic CIO article.

Are there many legal issues with the Open Source licenses? Only enough for me to write a law review article. See "A Primer on Open Source License Legal Issues: Copyright, Copyleft and Copyfuture," from the St. Louis U. Public Law Review. I also keep a set of links to resources on Legal issues on the Open Source licenses at http://www.denniskennedy.com/opensourcelaw.htm.

Posted by dmk at 10:45 PM

February 26, 2003

Legal Trends in Technology Outsourcing for 2003

Probably the most important development in information technology law has been the movement away from classic software licensing to technology outsourcing arrangments, such as application service providers. The number of issues in a standard software license deal pale in comparison to the number of legal and business issues raised when outsourcing is involved. Many companies have learned a painful and expensive lesson in the past year or two by treating outsourcing deals on a "contracts as usual" basis.

Paul Roy has an excellent article in Outsourcing Journal called "Legal Outsourcing Trends - A Look Ahead" that highlights some of the key issues and developments in this growing area of law. Based on my experience, his comments are dead-on correct. I'm not saying that this area is the equivalent of legal brain surgery, but this is definitely one area where good intentions, good feelings and a "let's just keep it really simple and not involve the lawyers" approach makes sense. Nor does it make much more sense for lawyers unfamiliar with the special issues to jump in without any help.

Posted by dmk at 07:50 PM

The Double Helix at 50

I love Internet resources that allow me to jump in and get up to speed on a topic, all in one place, particularly good, readable, plain language stories about scientific concepts. The New York Times has a nice retrospective set of articles on the 50th anniversary of the discovery of DNA (free registration required) that makes for a pleasant and educational diversion.

Posted by dmk at 07:30 PM

February 18, 2003

IP Memes Newsletter

One of the cool new projects I've gotten involved with is "IP Memes," a weekly e-mail newsletter from The TechnoLawyer Community. In IP Memes, Kevin Grierson, Gail Standish and I provide links to IP developments, articles and resources, with an eye toward identifying themes that will come into play on the horizon - new technologies, newly-introduced legislation, speeches and articles from important thinkers, and much more.

It's turned into a very interesting and fun publication. The newsletter itself consists of short summaries with hyperlinks to follow if a summary catches your attention.

The target audience is probably IP lawyers, corporate counsel and business decision-makers, but there are usually interesting stories for any one interested in the future of IP and law.

To subscribe, you simply need to go to http://www.technolawyer.com and join The Technolawyer Community, which is a great resource on legal technology matters. One of your membership choices will be to choose which newsletters you want to get. Just select IP Memes.

Posted by dmk at 03:37 PM

Electronic Signature Law in Missouri

Missouri remains one of the minority of states that has not adopted the Uniform Electronic Transactions Act ("UETA"). Chip Fendell and I have written an article discussing UETA, the federal E-SIGN act, their interplay, and the implications of Missouri's non-adoption of UETA.

It's called Electronic Signatures In Missouri: Moving To UETA Or Staying With E-SIGN and originally appeared in the Winter 2003 issue of the St. Louis Bar Journal.

Posted by dmk at 03:35 PM