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