Monday, March 28, 2005

Legal Blog Article

Folks...here's the article I wrote on blawgs in my final journalism class at OU. Enjoy!
BW


Spanning the “Blawgsphere”
Web coming to forefront for lawyers, scholars of law
By Ben Wickert

When people think of lawyers, a variety of stereotypical images often manifest themselves. The poor soul stuck behind a desk, languishing in seemingly endless sea of papers. The greedy, cutthroat power monger. The Web-savvy, forward-thinking, passionate public apologist for her profession.

Come again?
Until relatively recently, that last moniker would never have even been draped on an attorney’s coat rack. But now, lawyers, law professors, law students, and even judges have grasped the Web as a medium of expression. Message boards, databases, and weblogs all over the internet have exponentially increased the dissemination of law-related information available to the public. Material once accessible only in trade journals or law libraries now can be found at the click of a button.

Even so, there is sentiment that some lawyers have been slow to embrace the Web phenomenon.

“Lawyers are traditionally…traditional,” said Andrew Sinclair, a software attorney living in Cambridge, Massachusetts. “The practice of law, by nature, focuses on applying past experiences. I don’t think it’s very forward looking and I think lawyers tend to be laggards in technology adoption.”

It was partly out of frustration that Sinclair took steps to eschew that trend. When he was applying to law schools, Sinclair felt he didn’t have anyone with whom to discuss the process. After sifting through a variety of unorganized, hostile, and slow message boards, he founded lawschooldiscussion.org.

Law School Discussion, according to the site, is “an online community where law school related issues can be discussed in an organized, friendly, and informative manner.” The site utilizes password-protected registration and moderators, which allows for both privacy and some censorship of offensive language. Topics vary from scholarship information about particular schools, to what school has the best looking students and professors, to the political affiliation of registered users. Whether a visitor to Law School Discussion wants serious information or a flippant discourse on nonsensical topics, his needs will be met.

The message board is only one aspect of Law School Discussion that allows students to access helpful legal information. In addition, the site includes free information about admissions essays and exams, and links to several law journals and books. Material that was once too hard to find, or completely inaccessible, is compiled neatly into one site.

Sinclair said prospective law students have the most to gain from law-related material on the Web, whether they are trying to gain admission to a school or seeking information on current legal issues.

“I think most applicants have similar experiences, but many do not have real world contacts to talk to,” Sinclair said. “(The internet) is enabling greater discourse among law students and lawyers.”

Entering the “Blawgsphere”

Although message boards are a prevalent mode of disseminating law-related information on the Web, another form is much more abundant: the weblog, or “blog.” Quite simply, a blog works like this: a person (not so creatively called a “blogger”) makes posts onto a personal message board (the blog), onto which other bloggers can make comments.

Blogs are similar in nature to message boards such as Law School Discussion, but typically take on a more personalized feel. Because blogs can be updated and edited continually, the blogger has almost exclusive control over the blog’s content. Also, blogs list postings in reverse chronological order, giving more temporal relevance than a static website can provide. As more people realize the convenience and ease with which blogs can circulate information, the number of blogs on the Web continues to explode.

Despite the common stereotyping of lawyers as technological “dinosaurs”, blogging has begun to establish itself as a staple of many lawyers’ daily activities. The influx of law-related blogs (or “bLAWgs” as legal aficionados like to call them) present on the Web seem to thwart the cliché “you can’t teach an old dog new tricks.” (Or, perhaps more germane to the topic, “you can’t teach an old lawyer new technology.”)

All kidding aside, many prominent lawyers and law professors operate blogs that receive several thousand hits a day. One of the most-trafficked legal blogs belongs to a California intellectual property attorney named Denise Howell. Howell’s blog “Bag and Baggage” focuses mainly on issues pertinent to her field, with the occasional random musing on other non-legal subjects.

Howell recognizes that many lawyers are not “programmers or Web developers,” which represents a potential snag in online creativity. Nonetheless, she said, software has made blogging so simple that little or no technical expertise is necessary to operate a blog. Simply registering a username and password, typing what you want to communicate, and hitting “Post message” will do the trick.

For Howell, who is credited with coining the term “blawg,” operating a blog represents a valuable component of her legal career. She said it keeps her well-informed about issues important to her practice, and allows her to connect with potential clients.

“(Blogging) has become a critical part in how I gather news, manage and share knowledge, and network,” Howell said.

Howell said when she started “Bag and Baggage” in 2001, it was one of about a dozen legal blogs on the internet. Since then, that number has risen to many hundreds. Howell said the rising number of blogs has had a profound impact on the communication among people in the legal field.

“There is a fluid interaction between persons in the legal field that otherwise would have no occasion at all to talk to one another,” Howell said. “Blogs break down the communication walls between firms, academia, the judicial system, and other aspects of (the law).”

Another positive feature of legal blogs is that they allow everyday people to connect personally with a legal expert. Websites for courts or law firms have traditionally been chock full of useful “nuts and bolts” information. Such sites, however, often lack crucial personalized assistance and interaction people are looking for, Howell said. Maintaining a blog allows a lawyer to amalgamate professional expertise with a degree of personal touch.

Building rapport with the masses

In addition to facilitating communication between lawyers and potential clients, blogs provide lawyers a forum for dispelling common misconceptions about the profession.

“Everyone knows that lawyers in general have a bad reputation for various stereotyped attributes,” said Evan Brown, an intellectual property attorney based in Chicago. “Lawyers are criticized for being greedy, stingy, and uncaring.”

Brown started his blog, internetcases.com, mainly because of his passion for the subject matter-- internet law. He said operating the blog has allowed him to communicate that passion in a quick and easy format, at the same time projecting a more positive image of his trade.

“I hope that by giving thoughtful analysis (in my blog), I can help change the public’s perception about the profession,” Brown said.

For many lawyers, connecting with blog readers translates into success for his or her law firm. J. Craig Williams, a business litigation attorney based in California, said his firm has received a significant number of clients and referrals from his blog. The blog, “May it Please the Court,” receives around 6 million unique visitors a year. That makes it the most-trafficked legal blog of all time, according to blawg.org, a site that measures click-through rates for legal blogs.

Williams cited the Web as the best means for people to obtain legal help.

“People who need your assistance as an attorney are much more likely to find you on the internet than by any other means,” he said. By accessing his blog, Williams said, readers can better identify areas in which they might need legal help.

Williams also cited blogs as a vital marketing tool for all specialized professionals, including lawyers.

“Blogs (provide) the biggest bang for the buck,” he said. “You’ll reach more people for the least amount of money. If you’re trying to develop relationships, there are better ways. Nothing can substitute for getting to know someone face-to-face, but blogs are the next best thing.”

In addition to their regular postings, both Williams and Brown have incorporated another new form of internet technology in their blogs—podcasting. A person can access a podcast by subscribing to a set of feeds, from which different audio recordings appear. Then, all one needs to do is play the recording on an iPod MP3 device, or one similar to it.
So in addition to reading a lawyer’s comments on a certain issue or court case, someone can listen to the lawyer.

Brown said it is tough to tell whether legal podcasting will catch on, given the lack of any similar pre-internet forerunner.

“Legal blogging has as its predecessor the law review article or bar association publication,” Brown said. “Lawyers have not been known to routinely do radio shows, so I really cannot give an educated guess about whether (podcasting) will catch on.”

Despite uncertainty about whether the general public will latch on to legal podcasts, Brown said such technology likely will enhance lawyers’ own career development.

“Attorneys will continue to see the benefit of taking information with them,” Brown said. “The ease of access to information (in podcasts) will allow for a more efficient mechanism whereby legal professionals will be able to stay up to date with new developments.”

The big debate: is blogging journalism?

So it sounds like blogging is a legitimate form of journalism.

Many agree. Many of the same people encouraging the use of podcasts (and likely many more) are strong supporters of the blogging phenomenon. After all, who’s to inhibit the free flow of information, especially if it is presented by a knowledgeable professional for the benefit of many?

That question is one that members of the “mainstream media” have wrangled with for some time now. The main argument against blogs is that anyone with internet access can become a “journalist,” given the instant publishing ability a blog provides. The same criticisms have been leveled against podcasting, accusing the technology of cutting into radio broadcasts listeners.

All in all, the claim advanced by many members of “established” media organizations is simple: bloggers are not journalists.

Lawyers sound off

In a Feb. 16 posting to his blog, Craig Williams made a strong defense of blogging as a form of journalism. As a response to a National Public Radio story he thought was unfavorable to blogs, Williams posed the hypothetical:
“…if you have a legal question, who would you rather hear the answer from? A newspaper reporter who asked a lawyer, or from a lawyer who’s also a highly respected law professor? Plus, if you’d like, you can comment directly to me, the writer, and post your comments (written or audio) to the very same article you want to comment on. Try doing that on a newspaper article, TV, or radio broadcast.”

Williams’ post raises an intriguing question. He cited one significant difference between bloggers and “mainstream media” (MSM): blogs lack the “middlemen” such as editors and publishers that comprise (and often define) MSM outlets.

In light of that, should a tabloid magazine like the National Enquirer (presumably a member of the vaunted MSM brethren) automatically be considered “journalism?” Furthermore, does Craig Williams need to find himself an editor and publisher before his expert opinions will qualify him as a journalist? It’s probably a good bet that Williams would answer “no” to that little query.

Other lawyers who operate blogs recognize the blogger-journalist debate, but downplay its significance.

Ernest Svenson, a lawyer who operates the blog “Ernie the Attorney,” acknowledged that blogs have ignited a controversy over what constitutes journalism.

“We’ve never had to agree on the definition (of journalism) because we didn’t have platoons of ‘citizen journalists’ that were armed with a world-wide distribution system,” Svenson said. “Now that we have them, we have to decide if they are members of this club called ‘real journalism’.”

Nonetheless, Svenson downplayed the controversy as insignificant. Instead, like Williams, he implied that one should carefully evaluate the quality of sources on a case-by-case basis, regardless of the medium.

“There are clearly blogs out there that are poor purveyors of useful information,” he said. And there are media employees who make up news or who act inappropriately. What’s the point of analyzing the multi-dimensional problem?”

Evan Brown also downplayed the controversy, and offered a reason for its prevalence in today’s society.

“(The controversy surrounding bloggers) is in the public consciousness because it is being ‘reported on’ by the vociferous types that want to be like journalists,” he said. “The loudness of their voices, however, is not proportional to their actual prevalence. There remains a ‘silent majority’ of non-journalistic type bloggers.”

Brown said he does not hold himself out to be a journalist, and that he doesn’t intend to become one. Rather, he views his blog as an “opportunity to express my creativity and write on a subject about which I feel passionately.”

Brown also made the point that the type of writing he does on his blog is not new. He said the only difference between what he writes on internetcases.com, and what he has written in the past for bar association journals, is the speed with which he was able to publish each.

“Before (blogs), the amount of time it took for substantive legal analysis to be available to a wide readership was measured in weeks and months,” Brown said. “Now, I can be notified of a court decision, draft an analysis of it, post the work to my blog, and have readers from around the world read my posting, all within 24 hours of the court’s decision.”

Should we care?

Evan Brown and Ernest Svenson don’t really care whether members of the mainstream media consider them journalists. They will continue to post onto their blogs, probably not giving a second thought about whether a New York Times columnist or NPR reporter considers their work journalism.

Heck, should anybody even care?

Theoretically, the debate could fizzle out at any time. The journalist-blogger debate, however, has taken a new twist—one with legal implications.

A California Superior Court judge recently ordered three independent online reporters to divulge confidential sources in a suit brought by Apple Computer Inc. According to the suit, Apple brought action against unnamed individuals who allegedly leaked information about one of its unreleased products.

Judge James Kleinberg ruled that neither the First Amendment nor California’s shield law, which protects journalists from revealing confidential sources, could be used as protection against Apple’s subpoenas.

One of the journalists is being represented in court by an attorney for the Electronic Frontier Foundation, a non-profit group seeking to protect digital rights. The court’s ruling disappointed EFF Staff Attorney Kurt Opsahl.

“The trial court ignored the Supreme Court’s requirement that seeking a journalist’s confidential sources be a ‘last resort’ in civil discovery,” Opsahl said.

Several lawyers who operate blogs were quick to jump on the decision, feeling the court denied shield protection to the bloggers because they were bloggers.

Monica Bay, an attorney who posts on the blog TheCommonScold.com, said the Apple case was problematic in that it did not accept the bloggers as legitimate journalists.

“Would (the court) suggest that a story that runs on the San Jose Mercury News or the New York Times is not legitimate journalism?” Bay said. “I don’t think so.”

A closer examination of the court’s ruling, however, reveals that there was no mention of the journalistic status of bloggers. In fact, the opinion focused more on the violation of the state’s trade secrets law than on the bloggers’ status as journalists. In it, Kleinberg said:
“…Whether (the movant to block the subpoena) fits the definition of a journalist, a blogger, or anything else need not be decided at this juncture for this fundamental reason: there is no license conferred on anyone to violate valid criminal laws.”

Despite that text, the Apple case seems to open the door for further judicial review about the status of bloggers as journalists. What if, for example, a similar case arises where there was no alleged violation of a criminal statute? Will bloggers be protected under state shield laws and/or the First Amendment?

Svenson implied that the Apple case is merely a precursor to further judicial action.

“I seriously doubt (Apple) is going to be the last word from the judiciary on the topic,” Svenson said.

Further Conflicts, Controversies

The legal profession dictates that lawyers be very careful in the words they choose. For practicing attorneys, an insignificant verbal slip-up can violate attorney-client privilege. Also, lawyers must be careful not to create a conflict of interest with their employers.

Svenson said he is proactive and tries to avoid posting anything on his blog about the work he does for clients. Nonetheless, he said he is sure that “one day (his blog) will cause a conflict of interest” with his employer.

On his blog, Brown lists a disclaimer at the bottom warning readers that the blog “does not constitute legal advice, is not a substitute for legal advice, and is for informational purposes only.”

Another potential conflict of interest can be found in the blogs of law professors. Although their job is to teach students the law, many law professors maintain blogs that reveal their personal biases on very controversial topics. Although not as potentially destructive as a breach of attorney-client privilege, a professor’s inciting of controversy seemingly could cause a rift for students.

Nonetheless, controversy is not something that scares Eugene Volokh.

Volokh, a law professor at UCLA, operates The Volokh Conspiracy, one of the most popular legal blogs on the Web. Volokh said he is happy to cause debate, as long as he thinks he’s right.

“I am extra careful with particular posts that I think will be controversial,” Volokh said. “I don’t want those controversies in which I end up looking like a fool. But if I think my point is sound, then I’ll make it.”

Volokh lamented the fact that none of his students have challenged the beliefs he posts on his blog.

“It’s too bad, since I think students should argue with them (politely) when they disagree,” Volokh said.

Adopting the web culture: A shift from tradition

Despite the apparent reluctance of many “traditional” legal experts to adopt the internet as a primary means of communication, one thing is becoming apparently clear: the law has made an excellent transition into the digital age. It doesn’t seem like a stretch, then, to say those who don’t make the transition will be left behind.

Evan Brown concurs.
“The ability to instantly distribute legal analysis will result in a quicker progression in the development of areas of the law,” Brown said. “(The progression) is essential to keep up with (rapidly) changing technology.”

Denise Howell feels that legal blogs have improved, and will continue to improve, the legal field.

“Communication within particular organizations, and the legal field as a whole, is improved (by blogs),” she said. “It’s societally healthy to have professionals in any field engaged in public discourse.”

Sounds like a better proposition than being a “digital dinosaur.”

Ben Wickert is a journalist, a blogger, a future lawyer, and registered user of LawSchoolDiscussion.org. He will graduate from Ohio University March 16, 2005, one day after the publication of this article.



Sources Consulted

Apple Wins. Retrieved March 14, 2005 from: http://jurispundit.com/
Associated Press. (2005, March 11). Apple Wins Dispute Over Published Trade Secrets.
Retrieved March 14, 2005, from: http://www.theksbwchannel.com/print/4277108/detail.html
Bag and Baggage weblog. http://bgbg.blogspot.com/

Bay, Monica. Personal interview, via e-mail, March 7, 2005.

Blawg.org. Retrieved March 14, 2005 from: http://blawg.org/

Brown, Evan. Personal interview, via e-mail, March 9, 2005.

The Common Scold weblog. http://commonscold.typepad.com/

Electronic Frontier Foundation. (2005, March 11). Court Crushes Online Journalists’

Rights. Retrieved 14 March, 2005, from http:/

eff.org/news/archives/2005_03.php.

Electronic Frontier Foundation. Copy of Motion from Superior Court of California, 11 March 2005. Retrieved March 14, 2005, from: http://www.eff.org/Censorship/Apple_v_Does/20050311_apple_decision.pdf
Ernie the Attorney weblog. http://www.ernietheattorney.net/
Howell, Denise. (2002, April 15). Imagination Set Free. California Law Business. Retrieved March 9, 2005, from: http://www.reedsmith.com/library/publicationView.cfm?itemid=20934
Howell, Denise. Personal interview, via e-mail, March 7, 2005.
Internet Cases weblog. http://internetcases.com/
Law School Discussion. http://lawschooldiscussion.org/
May It Please the Court weblog. http://www.mayitpleasethecourt.net
Sinclair, Andrew. Personal interview, via e-mail, March 7, 2005.
Svenson, Ernest. Personal interview, via e-mail, March 7, 2005.
The Volokh Conspiracy weblog. http://volokh.com
Volokh, Eugene. Personal interview, via e-mail, March 7, 2005.
Williams, J. Craig. Personal interview, via e-mail, March 10, 2005.
Williams, J. Craig. (18 February, 2005). MSM Attacks Blogs. Ask Yourself Why Before Reaching a Conclusion. Retrieved March 14, 2005, from: http://www.mayitpleasethecourt.net/journal.asp?blogId=704

Tuesday, March 15, 2005

Guide to the Presentation

Databases:
Law School Numbers

Message Boards:
Law School Discussion
XOXOHTH

Blawgs:
Internet Cases
May it Please the Court
The Volokh Conspiracy

Other links:
Craig Williams' defense of Blogs
California Apple Decision....
...and the Electronic Frontier Foundation's Response

Monday, March 07, 2005

Bloggers take a hit

Found a great link to comments on a recent court ruling:

California Shield Laws Don't Protect Bloggers

In this case, a judge ruled that the state's shield laws that protect journalists from revealing confidential sources do NOT apply to bloggers. In the case Apple v. Doe, California Superior Court Judge James Kleinberg ruled that three bloggers had to reveal the sources that told them about new products Apple would be releasing.

From the facts of the case, it seems Judge Kleinberg does not recognize blogging as a form of journalism worthy of First Amendment protection. His opinion seems aligned with many in the "mainstream media", who dismiss blogging as nothing more than "trash writing."

Monday, February 28, 2005

Outline of Congressional Action

I Found this link that speaks about actions Congress is likely to take after the Grokster decision is made in Court:

www.freedom-to-tinker.com/archives/000775.html

The article, written by Cameron Wilson, Director of the ACM Public Policy Office in Washington, examines the views of speaks to the checks and balances within our government. Once the Supreme Court lays down its decision, Wilson expects Congress to establish a sub-committee on intellectual property. Interest groups will butt heads, and the P2P saga will likely stay at the forefront.

According to Wilson's predictions, the 109th Congress will take a much stronger position on IP issues than its predecessor. I tend to agree, given the great controversy surrounding intellectual property today. Congressional action is not only a plus, it is a necessity.

Friday, February 18, 2005

A Vehement Defense of Blogs....

It might be a little ironic that I make this post for the second time, after the lovely "cannot find server" popped up and I lost everything....

Anyway, here's an awesome apology for blogs as a legit form of journalism....
http://www.mayitpleasethecourt.net/journal.asp#2
An excerpt:
"The difference between blogs and MSM is the elimination of most of the middlemen. When you read blogs, such as this one, you get the "reporter." You don't get the copywriter, editor, producer and owner in the way, paring down what I write.The only two filters are you and me. "

Enjoy...

A Vehement Defense of Blogs....

I found an interesting apology for blogging as a legitimate form of journalism:
http://www.mayitpleasethecourt.net/journal.asp#2

I completely agree with many of the points made here by the author, attorney J. Craig Williams. He makes an interesting defense by saying, "The difference between blogs and MSM is the elimination of most of the middlemen. When you read blogs, such as this one, you get the "reporter." You don't get the copywriter, editor, producer and owner in the way, paring down what I write.The only two filters are you and me."

The only real argument blogging "haters" have is that there is a lack of accountability or oversight. But what makes a blog less credible than, say, the National Enquirer? I think we'll all enjoy it...

Monday, February 14, 2005

Defining a Middle Ground

Here's another post from the Copyfighter's Musings IP law blog regarding the P2P dilemma:
http://blogs.law.harvard.edu/cmusings/2005/02/09#a1033

As with most of my other posts, this deals with the ongoing P2P file-sharing controversy. Defining a middle ground, according to Derek Slater, involves "providing sufficient (monetary) incentives so that creative material will be created and distributed for the public's benefit while b) minimizing damage to innovation, legitimate consumer rights, and other public interests."

I believe a good step in the right direction would be for software companies to issue stricter warnings to users about infringing uses of their product. If the government defined standards for what constituted a good warning, it would allow companies to protect themselves from secondary liability. Opponents of such measures think the accountability is strictly in the hands of the user, and not the company.

Still more to come....

Thursday, February 10, 2005

Feds nab file sharers....

http://www.pcworld.com/news/article/0,aid,119342,00.asp

Excerpt.....

Operators of two peer-to-peer services have pleaded guilty to felony criminal copyright infringement charges in the first U.S. federal convictions for copyright violations using P-to-P networks, the U.S. Department of Justice announced this week.

William R. Trowbridge of Johnson City, New York, and Michael Chicoine of San Antonio, Texas, each pleaded guilty to one count of conspiracy to commit felony criminal copyright infringement. The pleas were entered Tuesday in the U.S. District Court for the District of Columbia.

Trowbridge operated at P-to-P hub named Movie Room between August 2002 and August 2004, and Chicoine operated a P-to-P hub named Achenon's Alley TM, according to the DOJ. The two sites offered a wide variety of computer software, computer games, music, and movies in digital format, including some software titles that legitimately sell for thousands of dollars, the DOJ says.

During an investigation, government agents downloaded 35 copyright works worth $4820.66 from Chicoine's site and more than 70 copyright works worth $20,648.63 from Trowbridge's site, the DOJ says. Both men pleaded guilty to acting for commercial advantage or private financial gain--the DOJ accused the two of operating their sites with the intent of obtaining copyrighted works from others.

"Those who steal copyrighted material will be caught, even when they use the tools of technology to commit their crimes," U.S. Attorney General John Ashcroft says in a statement. "The theft of intellectual property victimizes not only its owners and their employees, but also the American people, who shoulder the burden of increased costs for goods and services."

LOOKS LIKE THE GOVERNMENT IS LAYING DOWN THE LAW......