Blawg Review #176 is hosted by Legal Literacy — click here for the Review — on the United Nations’ International Literacy Day. Literacy is worthy of far more than a single day of focus, and it turns out that the United Nations agrees. Apparently, we are halfway through the Literacy Decade (running from 2003 until 2012).
Legal Literacy’s Review is full of great content, including some interesting IP-related topics. Thomas Colson at Securing Innovations (another LexBlog site) has a very interesting post (click here) on a new series of commercials by the PTO and Invent Now, among others, aimed at encouraging 8 – 11 year old boys and girls to invent. Colson is concerned that the commercials feed gender stereotypes and links to A Girl Named Pants his series of children’s books that motivate young girls to overcome gender stereotypes.
I can see the stereotype concerns to a degree, but the ads that I found were pretty powerful and funny. Click here for the LA Times article Colson links to containing a video of one add — I would love to add a suction bike to my bike collection. And to the extent that there is stereotyping, I think it is far outweighed by the potential good of the program. Having said that, I am impressed by Colson’s books and vision. When my daughter is old enough, I will be reading to her about the adventures of Pants.
Continue Reading Blawg Review #176 — Fighting for Literacy
LexBlog
Blawg Review & the September Carnival of Trust
Blawg Review #175 is up at Jamie Spencer’s Austin DWI Lawyer (another LexBlog site) — click here to read the Review. Fitting with Ed.’s sense of humor, a DWI lawyer was chosen to host the Labor Day Review, instead of a more traditional pick, like a labor lawyer. Of course, there are lots of interesting DWI posts, and a few good IP links. Spencer links to Victoria Pynchon’s post at the IP ADR Blog about the arrest of a blogger who posted new Guns N’ Roses tracks before the group released its new album — click here to read it. In a “teeny tiny” act of civil disobedience, Pynchon posted the entire text of the LA Times story on the arrest. While I will admit to one or two acts of civil disobedience in my day, today you are just getting a link to the Chicago Tribune’s story by Michelle Quinn and Swati Pandey on the arrest and the increasing use of criminal copyright infringement prosecutions — click here.
September’s Carnival of Trust is up at Compensation Force — click here for the Carnival. There are no specific legal or IP posts this month, but lots of great stuff on building and maintaining relationships with trust.
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Continue Reading Blawg Review & the September Carnival of Trust
Blawg Review #173
Last week’s Olympic edition Blawg Review focused on the medals. Building on that, this week I discuss the elements of a world record swim. If you were watching last week, instead of blogging, you saw 20 of them in the Olympic pool; seven by Mr. Phelps.
Practice
Nothing is more critical than preparation. A big part of preparation is tightening your stroke and cutting out unnecessary motion. Reese Morrison, at the Law Department Management blog, discusses blunt suggestions for trimming legal bills.
Endless hours in the pool alone are not enough, you need a good coach. Business development coach Cordell Parvin provides an excellent three part series at his Law Consulting Blog – one, two, and three – on persistence, an important element of any Olympic training program. In an Olympic caliber display of persistence, Drug & Device Law had an exhaustive post discussing and classifying each medical device preemption case since the landmark Supreme Court decision in Riegel v. Medtronic, Inc., 128 S. Ct. 999 (2008).
You also need a support network to help you get through all of the pool time. Bruce Allen, at Marketing Catalyst, teaches us how to avoid the cocktail conversation you cannot escape from at a networking event. At Copyblogger, John Morrow explains that content is no longer king in the blogosphere, you need friends. And he teaches you how to get them. At BlawgIT, Brett Trout – who is a fighter, not a swimmer – has an interesting post about how to work together as a community to thwart webjackings (the hijacking of a website). And Mediation Channel’s Diane Levin discusses the social side of blogging, and reading blogs.
Of course, if you do not have time to practice you will never set the record. So, you need a job, or at least some cash. On that note, Harmful Error posts the great news that loan forgiveness programs were expanded this week for legal aid lawyers, state prosecutors and public defenders.
The Suit
The clothes make the man (or the woman). This year the go-to duds were Speedo’s LZR suits. Patent Librarian Michael White tells us that, no surprise, Speedo patented the LZR. IPKat expands on swimming patents, providing a broader view of Olympics-related patents.
Genes
As a guy who swam for a lot of years and practiced hard throughout, I can tell you not everyone has what it takes to set world records. The closest I came was getting beat by an Olympian and world record holder. Of course, you might be less impressed by my loss if you knew that at the time his Olympic medals were four or five decades old, and I was 19. At Idealawg, Stephanie West Allen discusses the traits that make entrepreneurs entrepreneurial.
Mental Focus
One of the big stories on Phelps this week was how he thinks of nothing but not losing during a race. At Litigation & Trial, Maxwell Kennerly tells us that you have to know when you are sweating the details more than your client would want by over emphasizing proof-reading. Of course, even Kennerly agrees that some details matter.
Knowing the Rules
You have to know the rules. Turn wrong or break the rules for your stroke and beating a record by ten seconds will not matter. At the Legal Juice, John Mesirow reports that kids at the Lake County Florida library are allowed to rent R-rated movies because they believe it is an unconstitutional delegation of authority for the Motion Picture Association of America’s guidelines for determining obscenity. I am sure kids from all over that area are flocking to the Lake County library because the rules are on their side, at least for now.
Filewrapper reports on a Federal Circuit decision holding that copyright infringement, and not just breach of contract, when the terms of an open source license governing the copyrighted material are breached. For more on this major decision in the IP world, check out: BLT; Law Pundit; and Patently-O.
Seattle Trademark Lawyer Mike Graham shows the consequences of not following the rules using two Western District of Washington opinions.
Ethan Lieb, guest blogging at Freakonomics, argues that we need to change the rules requiring unanimous juries. And the WSJ Law Blog discusses a judge and a juror who clashed over jury nullification.
The Start
A bad start is hard to recover from, especially when you are chasing the fastest time ever. Evan Schaeffer shows how to open well at trial at the Illinois Trial Practice Weblog, and he links to Trial Theatre’s opening statement quiz.
Turns
Coming off the wall in a turn is the fastest a swimmer goes during a race. So, you need good turns. IntLawGrrls discuss how to turn around the conflict between Georgia and Russia (sorry the turns section was tough).
Legal Literacy discusses Whole Foods’ turned around (or recalled) beef and looks behind the scenes at how it happened and Whole Foods’ impressively quick response.
The Finish
Do you do an extra stroke or do you glide in hard? Always a tough question, but the .01 seconds the decision costs you can mean the race and the record.
At his E.D. Texas Weblog, Michael Smith reports that while the E.D. Texas started out as a rocket docket, particularly for patents, it has now slowed down and let many other districts catch it with a time to trial of 24 – 30 months.
The Law and Magic Blog reminds us that we cannot always win, and that trying to rig the system to guarantee wins – he is talking about the stock market, but it holds true for the pool – is dangerous work.
At the IP ADR Blog, Victoria Pynchon praises several Perkins Coie attorneys who went the distance for their pro bono clients at Gitmo and earned the clients’ respect for providing them an able defense.
** Images provided via a Creative Commons license by A. Dawson or Andre from Flicker. **
Next week’s Blawg Review will be at fellow LexBlog site, the Texas Appellate Law Blog.
Blawg Review has information about next week’s host, and instructions on how to get your blawg posts reviewed in upcoming issues.
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Continue Reading Blawg Review #173
Where Have All the IP Addresses Gone?
Proskauer Rose’s just launched New Media & Technology Law Blog* has a very interesting post by Jeff Neuberger on the upcoming scarcity of IP addresses (the numeric identifier required for each unique location on the internet) — click here to read the post. The current IP address protocol, IPv4, is a 32-bit scheme that provides about 4.3B addresses. That is an astounding number, but according to some reports we could use all of those addresses as early as 2010 or 2011. The most likely solution to the problem is a switch to the 128-bit scheme that is known as IPv6. But doing that will come at the cost of switching out hardware not designed for IPv6 and retraining network operators.
You may be wondering whether there is a legal take away from this, and here it is. Proskauer’s post discusses the US government’s efforts to prepare for the change over by beginning to require new equipment to be IPv6 compliant. Of course, this is just as much an issue for corporations as it is for governments. And if we are running out of IPv4 addresses and if there is a switch to IPv6, we could see a large number of technology contract disputes and law suits over whether agreements were breached by failing to provide IPv6 ready hardware. But those suits will be more effective if you add a IPv6 representation and warranty to your new agreements, as Proskauer explains:
If you are an attorney involved in technology transactions, at a minimum, become IPv6 aware. You might want to query your clients on the need for representations and warranties on IPv6 capability in technology transactions. And keep your eye on the horizon for legal developments related to IPv6. If the alarmists are right and scarcity of addresses is truly looming, we may see legal disputes over issues such as hoarding of IP addresses, and efforts to create a market for IP addresses, the allocation of which is currently controlled by non-profit corporations.
* The New Media & Technology Law Blog, another LexBlog site, is off to a great start and is worth a spot in your RSS feed. In particular, I was very impressed with the quality of the writing.
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Continue Reading Where Have All the IP Addresses Gone?
May Carnival of Trust — Addendum
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.
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Continue Reading May Carnival of Trust — Addendum
May Carnival of Trust
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?
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Continue Reading May Carnival of Trust
New Regional IP Blogs
Since my last post listing the Blog’s “cousin” blogs — regional IP blogs – another has joined the family. The Los Angeles Intellectual Property Trademark Attorney Blog, published by Milord & Associates. Welcome to the family. Here is the revised list:
Australian Trademarks Law Blog*
Canadian Trademark Blog
Delaware IP Law Blog
E. D. Texas Blog
Florida IP Blog*
Illinois Trial Pratice Weblog (okay, it is not IP specific, but it is regional and provides excellent content)
IP Dragon(China)
IP Legal Lounge
Las Vegas Trademark Attorney
Los Angeles Intellectual Property Trademark Attorney Blog
Maryland Intellectual Property Law Blog*
Patent Trademark Blog(some Orange County focus)
Seattle Trademark Lawyer Blog
Tech Law Forum Blog (N.D. Cal.)
If you know of other regional IP blogs, post a comment or send me an email and I will add them to the list. A hat tip to Mike Atkins for pointing out the new blog at his Seattle Trademark Lawyer blog.
*These are blogs developed and hosted by LexBlog just like this Blog.
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Troll Tracker Allowed to Blog
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.
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Continue Reading Troll Tracker Allowed to Blog
Anonymous Bloggers Carry on Tradition of the Federalist Papers
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.
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Continue Reading Anonymous Bloggers Carry on Tradition of the Federalist Papers
Unique Perspectives on Juries & Trials
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.
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