LexBlog’s Kevin O’Keefe picked up on Judge Posner’s proposal to make linking and summarizing news stories copyright infringement, which I blogged about Friday. O’Keefe takes a different approach than I did, based in part upon a post by Jeff Jarvis at the Buzz Machine. O’Keefe argues that the issue is really that news spreads from newspapers faster today than it used to. But just as newspapers benefited from word of mouth about their stories twenty years ago, they benefit from links to their stories today. As a result, linking should not be limited in any way and certainly not just to prop up the newspaper industry:
Because news spreads faster we’re supposed to give newspapers a monopoly on the news? That’s crazy.
Jarvis makes a compelling point which lawyers advising newspapers ought to think about when counseling newspaper clients.
Schultz and the Marbergers complain about what they call the ‘free-riding’ of aggregators, et al. But they simply don’t understand the economics of the internet. It’s the newspapers that are free-riding, getting the benefit of links.
The framers of our Constitution, including the First Amendment, intended it to endure and cope with the effects of the anticipated changes of our nation.
Things have changed – changed quickly. But let’s be careful when thinking of following lawyers and Judges who may not understand the nature of the change.
I understand his view, although I am not sure it is the best decision from a policy stand point. It is important not to lose site of the fact that copyright holders with content on the internet still have significant protection. Direct copying of the stories is already protected by copyright law, especially if a paper registers its copyrights and can get statutory damages. Of course, as I pointed out Friday, it is hard to police the use of facts from news stories. So, it will be difficult to make an infringement case when someone truly summarizes a news story. But I can see the value in incentivizing traditional news media to continue spending on reporters and reporting. For example, a system of paying newspapers, and other content providers that would choose to opt into the system, a nominal fee for click-throughs on links from your site to a current news story. To me that seems like a reasonable compromise which would not cost most websites much, but could provide real economic benefit to news websites, thereby maintaining reporting staffs. Of course, newspapers could accomplish something similar and maybe even economically better by shifting to subscription-based sites, which has been received with mixed reactions and effects previously.
But more important than which position is correct, is the discussion. While the Constitution does give Congress the power to protect copyrights, it says little about how to protect them. That is left to Congress, which enacts copyright laws based upon the technology available when the law is drafted and some limited vision of technology to come. As a result, it is difficult to effectively apply the Copyright Act of 1976, even with more recent amendments and additions, to every aspect of the internet world. So, in light of the fast pace of technological change over the last ten to twenty years, an open dialogue about how to make the copyright laws adequately protect authors and the public is very important. And as O’Keefe and Jarvis point out, it is a dialogue that requires more than just lawyers, who understand the legal issues, but artists, newspapers, media consumers and many other copyright stakeholders.

Continue Reading More on Judge Posner and the Intersection of Copyright and the Internet

It is the time of year for the Best of 2008 lists. The legal blogosphere* is no different as evidenced by Blawg Review #193 — click here to read it — recounting the 51 weekly Reviews from this year and soliciting nominations for the annual Review of the Year award from anyone who has hosted or is scheduled to host a Review. As someone who has hosted (click here to read my 2008 Review # 173, and who plans to host another in 2009, I exercise my right to vote for the following Reviews:
Rush on Business — Click here to read Review #147 which followed law blogs as they participated in Iowa’s famous RAGBRAI cycling race/ride (I love cycling).
Patent Baristas — Click here to read Review #161 which provided a powerful message on Memorial Day.
Likelihood of Confusion — Click here to read Review #191 which took a legal look at the possible explanations for the miracle of Chanukah.
* Ed. how can you insist upon Blawg Review, but than refer to the legal blogosphere. Are you just trying to get to Mr. O’Keefe?

Continue Reading Best Blawg Reviews of 2008

Blawg Review #186 is up at Res Ipsa — click here to read it. Befitting a blog that focuses on the use of technology in the law, there is plenty of IP content:
* Traverse Legal has a great post, including a podcast, (click here to read/listen to it) explaining that while it is possible to register your marks without a lawyer, the smart decision is to use a lawyer that is an expert in the field.
* IP’s What’s Up makes the argument that open source licenses are a powerful use of a copyright — click here to read it.
* The mighty IPKat looks at the best IP advice provided by its readers in response to a recent contest — click here to read the advice and IP Kat’s thoughts.
Finally, it is not directly IP-related, but the Review also looks at an interesting technology debate that is occupying the legal blogosphere — the value of Twitter as a legal marketing tool. Calling himself a curmudgeon, David Giacalone at f/k/a argues against Twitter, or at least questions its business development value — click here to read the post, which has generated significant discussion and response. LexBlog’s Kevin O’Keefe responded strongly arguing Twitter’s value — click here to read it. O’Keefe’s arguments for Twitter boil down to the fact that Twitter is a powerful networking tool. It allows colleagues around the country and world with common backgrounds and issues to find each other and engage in far-reaching conversations. And building networks builds both professional satisfaction and business. I agree with O’Keefe whole-heartedly. But I also understand Giacalone’s uncertainty and lack of comfort with Twitter It takes most lawyers multiple tries to get Twitter and more than that to get comfortable using it. Hopefully, Giacalone will keep trying and figure it out eventually.

Continue Reading Blawg Review #186

Jones Day v. BlockShopper.com, No. 08 C 4572 (N.D. Ill.) (Darrah, J.).
As I have described in earlier posts (click here, here and here) plaintiff Jones Day sued defendants, BlockShopper LLC and two individuals associated with the website (collectively “Blockshopper”), for allegedly using Jones Day’s service marks and linking to its website in at least two articles discussing Chicago real estate transactions of Jones Day associates. Jones Day claims service mark infringement, Lanham Act false designation of origin, Lanham Act dilution, and state law deceptive trade practices and unfair competition. Plaintiff also moved for a temporary restraining order (“TRO”). The parties stipulated to a TRO which the Court entered ordering defendants not to: 1) use Jones Day’s service mark; 2) use any content from or link to Jones Day’s website; or reference Jones Day in Blockshopper headlines.
Last Friday, Blockshopper filed a motion to dismiss. And several public interest groups — the Electronic Frontier Foundation, Public Knowledge and the Citizen Media Law Project — has sought leave to file this amicus brief supporting Blockshopper’s motion to dismiss. Jones Day opposed the motion, arguing that the three groups and their arguments do not meet any of the Seventh Circuit’s standards for amicus filings. I will keep you posted about the case generally and as to whether the Court enters the amicus brief.
And the case continues to draw fairly strong legal blog interest:
The Prior Art
Real Lawyers Have Blogs (LexBlog’s Kevin O’Keefe)
Public Citizen at its Consumer Law & Policy blog (acknowledging that he was incorrect as to the timing of an alleged quote from Judge Darrah, which he also did in a comment to my post discussing the alleged quote)
Las Vegas Trademark Attorney
Citizen Vox
Ars Technica (and here, discussing the amicus brief)
The legal blog commentary continues to run heavily against Jones Day and in favor of Blockshopper.

Continue Reading Jones Day v. Blockshopper: Amicus Filing

Since writing my May Carnival of Trust post (click here for the post), several others have commented on Web Strategy by Jeremiah’s post suggesting that people do not trust bloggers. Of course, the real point of the studies Owyang cites is that people do not trust an unspecified blogger as much as their family or other unspecified news sources. As I said before, that should be an expected result and it shows good judgment. But it is easy to get caught up in the survey and miss the fact that people trust “their” bloggers — those that they have entered a conversation with, read regularly and, therefore, have developed a trust with. Several others have picked up on Owyang’s post and the surveys, with similar comments. I am posting them in an Addendum to avoid breaking the Carnival of Trust ten post rule (although I will update that post with a link to this one). Here are some of the commentaries:
Kevin O’Keefe at LexBlog and Real Lawyers Have Blogs says that he must be trusted, there is no explanation for his site traffic and speaking engagements except trust — click here for Kevin’s post:
People put their butts on the line at least once a month asking me to speak in front of large groups. Just received invites to speak at the Texas Bar Annual Conference and to keynote at a Wisconsin Bar Association Conference. I don’t know any of the people who invite me. They’re reading my blog. If they didn’t trust what I was writing, would I get an invite?
Law firms, from solo’s to the largest in the country, call me for advise on blogging. The same firms subscribe to LexBlog’s blog service. No other way those folks know me than my blogging.
And for the record, Kevin is wrong, he is pretty funny. But he is correct in that the legal community would not keep reading his blog for the humor alone, it is for his insights coupled with his delivery.
Kevin also cited Bill Ives at the Fast Foward Blog who had similar comments, arguing that blogs (as opposed to MSM sources) require more work on the part of readers to determine whether they should trust the blogger and on the part of the blogger to cultivate and earn that trust — click here for the post:
Blogs are conversations and they do put more responsibility on the reader to judge the material than say, the New York Times, with its army of fact checkers. But even the NYT gets it wrong some times and everyone has some type of bias. Blogs are also a medium. The NYT also has many of them. Do you trust a magazine article more than television? In each case, the answer would be it depends on the person. This is not say that communication channels do not have their own properties. Naturally, seeing someone on TV gives you more information than a magazine article. Blogs are usually the voice of a single person or a group of individuals and not an editorial board. However, a blogger has to build the trust of his or her audience by being consistent and transparent as the first commenter wrote above.

Continue Reading May Carnival of Trust — Addendum

Welcome to the May 2008 Carnival of Trust. For regular Blog readers, this will be a slight departure from the case analysis format you have come to expect. But I promise you the trust-related links will still be valuable reading for IP litigators and IP litigants. And in the spirit of the Carnival, I will now proceed to build your trust in me by following through on that promise.
The Carnival of Trust is a monthly, traveling review of ten of the last month’s best posts related to various aspects of trust in the business world. It is much like the weekly Blawg Reviews that I post links to and have hosted, but those generally contain far more than ten links. My job this month was to pick those ten posts for you and provide an introduction to each post that makes you want to click through and read more.
Do you trust me? Jeremiah Owyang at Web Strategy by Jeremiah says you do not , unless you are related to me. But the real point of Owyang’s post and the studies he cites is that people do not trust an unspecified blogger as much as their family or other unspecified news sources. That is not surprising and even shows good judgment. As Anne Reed at the Deliberations blog points out, choosing blogs is about developing trust. You find a few that you like and trust, trust developed by entering that blogger’s conversation and developing confidence in that person’s posts, and based on your trust in those blogs, you begin to find other quality blogs:
I learned the territory one or two blogs at a time, first coming to like and trust a few blogs (and bloggers) and then following their links and blogrolls to others.
Both the upside and downside of blogs is that you cannot develop an audience, or a community, by simply building an attractive, user-friendly site with good search engine optimization (although if you are going to run a law blog, you should do all of those things. People may come once for flash, but return visitors and respect within the blogging community is generated with strong, consistent content.
Kevin O’Keefe of LexBlog pairs up with his able VP of Client Development Kevin McKeown to advise bloggers and their employers, specifically law bloggers but the post applies more broadly, on how they can build trust with each other by devising a thoughtful corporate blogging policy and by meeting legal ethics standards — click here for the post.
In professional services circles, American Airlines’ serial MD-80 groundings was big news. Mark Bonkiewicz at World Class Trust argues that American Airlines, and airlines generally, have destroyed much of the public trust they built over decades of excellent service. And he contends that they have a long road ahead to regain the trust. But as a frequent flier who spent a lot of time during and around the MD-80 groundings on American Airlines flights, I disagree. In my experience, American largely handled cancelled flights and frustrated passengers well. This suggests that trust is subjective, a premise that squares with my personal experience.
Alex Meierhoefer at Leadership and Talent Development for Smart People asks: Is Trust a matter of Perspective? He looks at the “trust equation” and contends that trust should not be subjective, or at least is not subjective if parties in business deals, and presumably in politics as well, communicate openly. The problem with that is assuming open communication assumes trust. Additionally, sometimes unseen factors enter in to the other party’s decision making causing them to take actions that harm trust because of a lack of information. Perfect information and decent actors would guarantee trust, but absent perfect information trust will always be at least partially subjective.
My engineering background does not let me walk away from an equation without some discussion. And the Carnival of Truth’s own Charlie Green provides an excellent post at his Trust Matters blog discussing a version of the trust equation and providing a self-diagnosis tool which outputs a trust quotient (like an IQ score) on a fifteen point scale. Here is the equation the diagnostic is based upon:
Where C is credibility, R is reliability, I is intimacy and S is Self-Orientation. The diagnostic is interesting and the results may surprise you, they did me. Any tool that helps you take an honest look at yourself is a powerful resource for leaders and managers. The more honestly we can look at ourselves, the better we can care for and lead our teams.
Instead of using an equation, George Ambler at The Practice of Leadership asks What is Your Trust Rating? by looking at Robert Hurley’s ten primary trust factors. I like the equation, but the factors get to the same result. And as leaders, it is critical to evaluate how others perceive our trustworthiness. So, use the equation or the factors, but take the time to do it either way.
On the subject of trust-based leadership, Victoria Pynchon at the Settle It Now, Negotiation Blog has an excellent guide for maintaining your client’s trust during a difficult negotiation: How Can I Convince My Client to Lose More than Predicted and Still Maintain My Own Credibility? The answer is complex and multi-faceted, but it boils down to the fact that you have to get the stakeholders and decision makers face-to-face, get their buy in on resolution as a goal (in addition to winning), explore all avenues of resolution, and you have to let them explore all aspects of the dispute, even those that do not matter. The last point is a difficult one for lawyers. As a lawyer you generally want to remain focused on the settlement inputs — money, confidentiality provisions, sale of existing product if something about the product is being changed, etc. — but from a trust perspective it is important that the stakeholders resolve not just those issues that go into a final agreement, but any problems or concerns they have related to the dispute or the parties to the dispute.
And on a related topic, the Patent Baristas have a great post explaining how biotech companies can get past typical stereotypes, and sometimes realities, of doing deals with university tech transfer offices by, among other things, recognizing the other side’s by treating the other side with respect, and appreciating both their needs and their constraints — in other words, developing their trust.
Ed Moed at Measuring Up looks at the importance and power of building a trusted brand for sales: Build a trusted brand and the possibilities are endless… He was drawn in to a new diner in his local Whole Foods simply by the power the Whole Foods brand holds for him. As someone who grocery shops and then eats breakfast with his son at Whole Foods most Saturday mornings, I can appreciate Moed’s point. If my local Whole Foods opened a restaurant or a diner (we currently make breakfast out of items purchased from the store and eat in a small seating area at the front of the store), I would eat there at my first opportunity. Is your brand strong enough to draw people in that way?

Continue Reading May Carnival of Trust

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

I have run across a couple of items that fall outside of the Blog’s Northern District IP focus, but that are useful for all of us focused on resolving IP disputes in the courts:
An Idaho Business Review* article about a patent trial between Rambus and Micron reminded me of the importance of viewing trial proceedings through the eyes of the jury. The reporter explained that after a week and a half of proceedings, much of them under seal, the Court has issued an order requiring that the jury be provided daily refreshments paid for by the United States. That was the extent of what the reporter knew about the proceedings. Of course, the Court likely decided numerous complex issues during the week and a half, but all the reporter, and likely the jury, saw was mysterious and sometimes frustrating delay. Lawyers often forget how juries see repeated sidebars and morning or mid-day motion hearings. Do your best to fill in or at least explain the gaps and delays for your jury, otherwise they will do it themselves.
Patent Troll Tracker identified this blog by E.D. Texas patent defendant Desire2Learn chronicling its ongoing patent infringement trial. This is dangerous territory for a litigant, but it could be a fascinating look at the trial process from the corporate litigant’s vantage point.
* Why do I read the Idaho Business Review? I don’t. I found the article through the wonders of RSS feeds and content searches. Thank you Kevin O’Keefe and LexBlog for teaching me the power of RSS.

Continue Reading Unique Perspectives on Juries & Trials

I am hosting the 133rd weekly Blawg Review on Monday. For those of you new to the Blawg Review, it is a round up of the best law blog* posts of the last week based upon submissions and the host’s (that’s me) own additions. Feel free to nominate your own posts — click here for submission guidlines and a form for submitting your posts. And check back Monday morning for Blawg Review #133.
* I generally use the term “law blog.” The Blawg Review goes with “blawg” to mean the same thing. There has been considerable debate on which term is most appropriate — click here, here or here if you really want to know more about this debate from Kevin O’Keefe at LexBlog.

Continue Reading Chicago IP Litigation Blog Hosting Blawg Review #133