Joe Mullin, an IP Law & Business reporter, has an excellent series of posts on his The Prior Art blog discussing the Harris v. Fish & Richardson case and the Patent Troll Tracker — click here for this blog’s coverage of the Harris case. Mullin has three posts with lots of details and has promised a fourth:
1. Harris has dropped his subpoena for a deposition of Rick Frenkel, the previously anonymous creator and author of the Patent Troll Tracker — click here for the post. The post includes detailed analysis of each party’s declaratioins and allegations about the other.
2. Frenkel, in a declaration related to the subpoena for his deposition, stated that his Patent Troll Tracker blog will return — click here for the post. Unfortunately, Frenkel did not give a date for his blog’s return. While I have not always agreed with the Troll Tracker (for example, I am not a fan of the “Troll” name), Frenkel researches and writes very well and it will be good to have his voice back as part of the blog conversation.
3. Mullin’s third post is a detailed analysis of whether Frenkel is a reporter, including an analysis of Harris’s arguments, through the Niro Scavone firm, that he is not — click here for Mullin’s post. Mullin concludes that Frenkel is a reporter. The facts that he wrote anonymously, did not reveal his sources and was advocating a position (which Harris argued meant Frenkel was not a reporter) do not mean Frenkel could not be reporting. Mullin explains that there is a long history of both advocacy in reporting and anonymous reporting, and that reporters generally do not reveal anonymous sources.
4. Mullin promised a fourth post this week about anonymous blogging, a subject I have weighed in on several times — click here for the Blog’s anonymous blogging posts. I will likely comment on Mullin’s post once it is up. But I think he previewed his position when he posted over the weekend that he was discontinuing moderation of comments and welcomed anonymous comments.

Continue Reading Harris v. Fish & Richardson Update: Patent Troll Tracker Returning

Blawg Review #154 is up at the Health Blawg, which covers health care law. The Review’s theme this week is World Health Day, but it also points to an interesting story related to anonymous blog comments. SCOTUS Blog eliminated its comments feature — click here for the SCOTUS post explaining their reasoning. This is especially interesting because in October 2006, SCOTUS began requiring that commenters provide their full names before posting. They hoped that this would stop “silly sniping” by anonymous commenters. Unfortunately, after eighteen months, the sniping had not stopped. So, they closed comments completely, although you can still email them comments and they will consider adding the best directly to the posts.
Unfortunately, the SCOTUS experiment suggests that civility may not be enforceable on the internet. Perhaps the social constructs that maintain civility in real world conversations — knowing that you will have to work with the target of your words the next day, watching your target’s reaction in real time, or bystanders acting as civility referees — cannot be duplicated online.
Below is Crime & Consequences’ take on the SCOTUS comments decision:
I, for one, enjoy exchanging ideas with people who can remain civil while disagreeing. Regrettably, commenting on blogs too often involves opening oneself to ad hominem attacks and choosing between letting a public attack go unanswered or wasting time responding. The choices for a blog that has this problem are to (1) let it go uncorrected; (2) police the comments, an expenditure of time that few sponsors wish to make; or (3) turn off the comments, as SCOTUSblog has now done. If the sponsor chooses to let the problem go uncorrected, what typically happens is that thoughtful people stop or greatly reduce commenting, and the insult slingers come to dominate the comments. Choices (1) and (3) lead to the same result, then, that a useful medium is eliminated either de facto or de jure.
So the decline in civility of our society claims another victim. The SCOTUSblog experiment shows that uncivil behavior is reduced when people have to show themselves in public, but it is not eliminated. I suppose the result was to be expected, but it is sad nonetheless.

Continue Reading Blawg Review #154 & Anonymous Comments

I thought I was done discussing anonymous blogging — click here for my posts about Troll Tracker and anonymous blogging. But the Legal Talk Network’s Lawyer 2 Lawyer podcast has just published an edition about Troll Tracker and anonymous blogging featuring Ray Niro Sr. of Niro Scavone (who offered $15,000 for anyone who revealed Troll Tracker’s identity) and Dennis Crouch of Patently-O. It is a very interesting set of interviews. I only wish that Niro and Crouch had been on together, instead of in separate interviews. Here are some highlights:
Niro stated that no one has claimed the $15,000 reward for identifying Troll Tracker.
Niro emailed Troll Tracker and offered to donate the reward to charity (at that time it was $10,000) and fly Troll Tracker to Chicago to meet with Niro and see his firm.
Niro went back and forth between saying that anonymous blogging was wrong and that it was harmful and should not be allowed because you could not judge the author’s credibility.
Crouch supported anonymous blogging, done correctly, but acknowledged that anonymous comments on his site tended to be more aggressive than those with identified authors.
Crouch offered Troll Tracker an opportunity to contribute to Patently-O.
Crouch sees much of this as a generational change. Among other things, those under thirty have no expectation of privacy or concern at revealing their identity on the internet. Those over thirty are careful with their privacy and identity, making anonymity more enticing. That suggests that anonymous blogs will become less prevalent with time. Troll Tracker is likely mid-thirties, putting him right on the cusp of Crouch’s dividing line.
Crouch’s generation-split argument may have been displayed when Niro and Crouch were asked for their contact information. Crouch told people to go to Patently-O. Niro was uncomfortable providing his contact information and, when gently prodded, explained that he could be contacted through his firm, Niro Scavone. Of course, Niro’s reluctance could also be explained by the anonymous threats made against him in the recent past.
Finally, Business Week has a good article detailing the Troll Tracker story — click here to read it.

Continue Reading Ray Niro & Dennis Crouch on Anonymous Blogging

Dennis Crouch at Patently-O is reporting that Cisco has amended its employee blogging policy to require that any Cisco employee blogging about issues involving or related to Cisco identify themselves as a Cisco employee and provide a disclaimer that the opinions are those of the employee alone and not necessarily Cisco. This is a reasonable policy. It provides Cisco’s employees the freedom to blog while protecting both Cisco and its employees. And it prevents future occurences of the mistake Troll Tracker made (anonymously commenting on cases his employer was involved in), as I discussed in my post on anonymous blogging last week, click here for the post.
Cisco also told Crouch that Troll Tracker would be free to continue blogging, presumably as long as he follows the policy. Hopefully, that means that Troll Tracker will return to the patent litigation conversation soon, although it is easy to believe that this experience may have soured him on blogging or changed his voice substantially. Here is Cisco’s explanation of Troll Tracker’s status from Cisco’s official blog, The Platform:
As an employee, Rick is free to continue his personal blog, Patent Troll Tracker, in compliance with the revised policy. Rick has many fans who appreciate the information he collects and disseminates on patent litigation trends and recognize his blog as an important voice in the on-going national dialogue on patent issues.
IP Law360 (subscription required) has a detailed article this morning outlining Troll Tracker’s history, including several quotes from Ray Niro of Niro Scavone who received substantial media attention after offering a reward for Troll Tracker’s identity. Niro reportedly likened Cisco’s policy to “repairing a sidewalk after someone was hurt” and said that some of Troll Tracker’s statements were “hurtful, harmful and, in many cases, 100% inaccurate.” According to the article, Niro plans to depose Troll Tracker in Illinois Computer Research, LLC v. Fish & Richardson, No. 07 C 5081 (N.D. Ill.) (Pallmeyer, J.) — click here to read more about the case in the Blog’s archives.
Another note on anonymous blogging and commenting, Rob LaGatta at LexBlog addressed the Troll Tracker situation and my anonymous blogging post last week with an important point, click here for Rob’s post. Anonymous blogging and commenting is a relatively small part of legal blogging and most anonymous material is not problematic. It is easy to get side-tracked by the occasional offensive anonymous content. But the vast majority of legal blogs operate without problems with either unprofessional or anonymous content.

Continue Reading Troll Tracker Allowed to Blog

There has been a lot of coverage of Troll Tracker’s recently disclosed identity.* Troll Tracker ended his anonymity a few weeks ago and now faces a libel law suit along with his employer, Cisco, based upon statements he made about a case involving Cisco — this is one of the many reasons I do not write about cases that my firm or I are involved in.
I did not intend to weigh in on this story because there was not much to add (see below for links to some of the best coverage). But then I read Joe Hosteny’s March 2008 IP Today article – click here for the article — about anonymous blogging and anonymous commenting. Hosteny is a partner in the Niro Scavone firm, a firm that was often a focus of the . I have not always seen eye to eye with Hosteny in the courtroom, but I found his article both very good and thought provoking.
Hosteny raises real concerns about how the anger surrounding the non-practicing entity dispute has gotten out of hand. Death threats over patent litigation (even assuming they are idle threats) cannot be tolerated. These threats make me question whether the patent litigation bar is maintaining the levels of civility and sanity required by our professional standards.
Violent threats and, more broadly, incivility have no more place in the realm of legal blogs than in the legal system. But it does not follow that anonymous blogging and commenting are inherently bad – the issue is more complex than that. Lots of electrons have been spilled over the pros and cons of anonymous blogging – blog guru Kevin O’Keefe is no fan of anonymous blogging, whereas the anonymous editor of Blawg Review provides a great service to both the legal and the blogging communities with the weekly Blawg Review, despite his anonymity.
Anonymous blogging is not the problem. The problem is with anonymous bloggers who believe that anonymity allows them to comment on cases involving themselves or their clients , or to post threatening comments (Troll Tracker, of course, never posted any threats that I am aware of). If Troll Tracker had not blogged about his client’s case and if he had stuck to the verifiable facts, he likely would not have gotten sued.
Similarly, anonymous commenting is not the problem if legal bloggers, including Troll Tracker, monitored and approved comments before** they went live, the death threats against Niro never would have been published. I moderate the comments to this Blog and, as a result, angry rants against a judge or an attorney (none have been violent) do not make it on the Blog. And that anonymity may have provided the writer with false courage. But I prevent that, and so can any blogger, by acting as a gatekeeper.
Hosteny argued that anonymity is cowardly and not in the tradition of the First Amendment because the Declaration of Independence was signed by the Continental Congress. But he leaves out that the Federalist Papers were signed with aliases. Anonymity can be useful in that it can provide courage to voice ideas that otherwise might not be interjected into public discourse. For that reason, I think there is a place for anonymous blogging and commenting, as long as anonymous bloggers do not use anonymity as an excuse to avoid the rules of our profession and of common sense.
As promised above, for more coverage of Troll Tracker and the defamation suit, see:
E.D. Texas Blog
IP Law360 (subscription required, but a very thorough history)
Patently O — discussing a related federal suit filed in the District of Arkansas, including a link to the complaint.
Prior Art Blog — detailing the history of the suit and here and here on other aspects of the story as well.
WSJ Law Blog
* There are no Troll Tracker links because the site is currently either down or subscriber only.
** Troll Tracker did remove violent and offensive comments, but only after they were posted and he became aware of them.

Continue Reading Anonymous Bloggers Carry on Tradition of the Federalist Papers