If you are involved in the use of social media by and for non-profit organizations or just generally interested in legal issues arising out of the use of social media, and you will be in St. Louis on the afternoon of March 10, I have a panel presentation for you.

Here are the details:

Online Communities for Your Nonprofit: Legal Aspects of Social Media

March 10 – 3:00PM – 4:30PM

A panel of information technology attorneys from the St. Louis Corporate Counsel Association Pro Bono Committee will discuss the potential benefits of social media for nonprofits and provide an understanding of the legal issues and risks involved. They will suggest ways to create a successful online community without unhappy surprises.

Call 314-539-0357 to reserve your seat.

Schlafly Branch of the St. Louis Public Library (225 North Euclid Avenue, St. Louis, MO 63108 (314) 367-4120)

The panelists for the presentation will be JulieAnn Broyles (Ascension Healthcare), Elizabeth Cox, Peter Salsich and me.

We’re planning to do lots of Q & A and try to cover what’s on our audience’s minds. Bring your questions. We hope to see you there.

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

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I can see no benefits to treating your regular customers like they are criminals, but I’m not in the music industry, where that seems to be a standard practice.
I bought some CDs from Amazon and they arrived today.
I tried to open them so I could play them.
Five full minutes, a pair of scissors, and a sharp knife later, I was ready to give up on getting the last one open before it finally relented and I could remove the shrinkwrap and get started on that sticky tape that keeps the jewel case closed and sticks persistently to your fingers when you try to throw it away. I honestly don’t know how people with arthritis or disabilities get these things opened.
At the end of my ordeal, I was no longer excited about playing the music. I was too tired to put the CDs into a CD player, let alone rip songs into iTunes to put on my iPod.
However, that might be the purpose of the shrinkwrap obstacle course. In Good Morning Silicon Valley last week, Jennifer Pariser, the head of litigation for Sony BMG, was quoted as saying:

“When an individual makes a copy of a song for himself, I suppose we can say he stole a song. [Making a copy of a purchased song is] a nice way of saying ’steals just one copy’.”

The music industry, like many others, is at a crossroads. Improving the experience for regular customers has to be part of the right path, doesn’t it? Music is especially interesting because people who listen to a lot of music and like music, recommend it to their friends and others, resulting in more sales, larger concert attendance, et al. Word of mouth is a huge thing for bands.
Yet, rather tha making it even easier to listen to music and talk about it and recommend it, the music industry does things like raise questions whether copying music you already own is “stealing.”
Since two of the CDs are from Sony’s labels, I’ll now have to determine whether ripping to iTunes is “stealing just one copy” or whether it’s part of what I got when I bought the CD. I’m wondering if playing the CD in my car and at home will also be seen as a way of “stealing just one copy.” Maybe I’ll just play the CDs on Sony CD players, that should be a safe harbor, I would hope.
Sony also got a “thumbs down” on its approach to DRM on Movie DVDs in the post “Paying Customers Are the Enemy” on the Technology Liberation Front blog (hmm, notice a common theme). The money quote:

It’s worth keeping in mind that only the legitimate customers have to jump through these kinds of hoops. If you’re stupid enough to follow the rules and pay hard-earned cash for your movies, Hollywood rewards you by making you spend a relaxing evening learning how to update your movie player’s firmware. People who break the law and get their movies via a P2P network don’t have to worry about these sorts of headaches, as those files tend to come pre-cracked and in an open format playable on any device.

As many have said before, the entertainment industry needs to focus on ways to make it simpler and easier to comply with legal requirements than it is not to comply with them. Unfortunately, suggesting that making copies for your own use is “stealing” is not a step in that direction.
Update: Check out Ian’ Rogers’ presentation Convenience Wins, Hubris Loses and Content vs. Context, a Presentation for Some Music Industry Friends.
[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]
Read the blog posts and RSS feed items I find most interesting on Google Reader Shared Items or subscribe to its RSS feed. High volume, but lots of interesting items that will get you thinking.
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Elinor Mills has an article on CNET.com (and also in the NY Times) called “Please Don’t Steal This Web Content” that I recommend to anyone who publishes materials on the Web. Elinor talked to me during her preparation and there are some small quotes from me in the article, briefly summarizing some basic legal points.
The money quote, from Matt Cutts of Google:

For sites that syndicate their content through feeds, adding a link to the original source of the article at the top or the bottom of a page with wording to the effect of “this article was originally printed here” will help ensure that Google’s search engine displays the original item, not a reproduction, on a scraped site, [Cutts] said.

I like that quote because it validates the technique I decided to adopt quite a while ago as the best practical defense against splogs and automatic “repurposing” of my posts.
In response to the article, John Palfrey made some excellent points in his post “CNET Touches on Blogs and Copyright Issue“about how it’s difficult to believe that there’s still so much uncertainty and such a lack of workable enforcement or compensation mechanisms. It’s something that more of us should be thinking about. I’ve wished for a few years that Creative Commons would take more of a lead role in the practical aspects, but maybe it’s time to look in other directions.
Denise Howell makes a similar point here when she writes: “I have long thought Creative Commons moves us significantly closer to this third estate media ecosystem, but doesn’t quite take us all the way there.”
[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]
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Thanks to Charles Stricklin and Aaron Brazell at the WordPress Podcast, I got to join them and answer questions and talk about intellectual property and licensing issues facing bloggers, with a special focus on Open Source licenses, the GPL (GNU General Public LIcense), and the Creative Commons licenses. We also talked a bit about GPL 3.0. I had a great time talking with Aaron and Charles and recommend their podcast, especially for WordPress users and those thinking about moving their blogs to WordPress. It’s episode #26 for the WordPress Podcast and the episode is here.
The idea of the podcast was to give a general overview of these issues and give people a general framework for considering the licensing issues. There are a lot of misconceptions and questions about these licenses. I hope that the podcast contributes to the general discussion and shows people the nuances and difficulties of some of these issues. I might have raised more new questions than I provided answers.
I’ve written about the Open Source licenses before (see my article here) and our discussion on Between Lawyers about whether to apply a Creative Commons license to our blog is still a great, practical lesson about the issues involved with the Creative Commons licenses.
I also noticed today that Dave Winer has started a discussion about the Creative Commons licenses. I recommend following that discussion as well if you are interested in these licenses, especially if you’ve already applied one to your work.
Link to podcast. Thanks again Charles and Aaron.
[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).
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Check out the article in today’s NY Times called “Interns? No Bloggers Need Apply” by Anna Bahney, which explores the intersection of blogging and employment.
Anna and I spoke earlier this week while she was working on the article and there’s a quote from me in the article toward the end of the piece. Our conversation was quite interesting and I may return to some of the ideas we discussed in future posts on my blog. I thank Anna for including me.
I’ve written quite a bit on blogging policies and blogging and employment/expression issues on the Between Lawyers blog. Our archive of posts on blogging policies is an excellent collection of writings on these topics.
As they say, there’s nothing like being able to drop casually into a conversation, “oh, I was quoted in the New York Times this morning.”
[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).
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Let me recommend a fascinating post from David Munn called “Contract Terms and Negotiation – IACCM Project.”
David comments on a new project called the Contract Negotiations Guide project from the International Association for Contract and Commercial Management (IACCM). IACCM’s Executive Director,Tim Cummins, says:

Our aim is to create a baseline that is broadly accepted as ‘reasonable’ for both buy side and sell side, to generate greater mutual understanding of the factors that cause variations from this position, to outline the spectrum of negotiated terms that typically result. We believe such a guide will assist in cutting lead-times and reducing the extent of confrontation when one side or the other is seen as ‘unreasonable’ in its position, relative to the value or risks perceived by the other side.

The money quote (from David):

At the very least we should end up with a thoughtful analysis of contract terms that we can use for reference and training. At best it could result in a set of best-practice contract terms that reasonable buyers and sellers can use to greatly reduce the amount of time spent on unproductive contract review, revision, and negotiation.

Since I routinely review and assist in negotiation of software licenses and IT contracts in my law practice, I’ve seen some of the same trends that David notes in his post and I, too, welcome an effort that might produce some basic reasonable models that many companies will find useful to adopt as more or less standard approaches. It’s easier to make it to common ground if the starting point is closer to the likely ending point of the negotiations.
These types of group approaches at creating reasonable legal models and letting people adopt standard approaches that work well reflect some of the spirit of the Open Source licensing approach and may be help us move to both friction-free capitalism and what Bill Gates has called friction-free innovation.
I will be taking a close look at the IACCM project and encourage other technology lawyers and executives who deal with these kinds of contracts to consider getting involved in the effort.
[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]
Learn more about electronic discovery at Dennis Kennedy’s Electronic Discovery Resources page.
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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.
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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/)]
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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

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.
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