Dennis Kennedy

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Dennis Kennedy, a lawyer and legal technology expert in St. Louis, Mo., has been a significant influence in the ever-evolving relationship between lawyers and the Web. - Robert Ambrogi

Archive for July, 2004

IP Memes Sampler

Tuesday, July 20th, 2004

I keep forgetting to follow the lead of my fellow IP Memesters Denise Howell and Stephen Nipper and post a sampling of the IP Memes Newsletter I work on at – (email subscription available with free reqistration).
Here’s a sampling from the July 12 issue I put together.
From the �Internet Avenger� to the Tenth Anniversary of TRIPs � �Do Something Constructive� and Read This Edition of IP Memes
The Arrival of the �Internet Avenger� � Glickman to Replace Valenti at MPAA
Former U.S. Department of Agriculture, Dan Glickman, has been named to replace the retiring Jack Valenti, who came to symbolize the U.S. entertainment industry and forcefully asserted its views of intellectual property rights during his long tenure as the head of the Motion Picture Association of America. Although I must admit to hearing a few notes of the �Green Acres� theme song in my head every time I think of a former Ag Secretary moving to Hollywood, some commentators have referred to Glickman as the �Internet Avenger� and expect his approach to differ from that of Valenti in some significant ways. In fact, his approach to complaints about the threat of Internet competition to the entertainment industry has been described as �do something constructive about it.� Others expect little change. If you want to single out one place to watch for IP developments in the U.S., that place would have to be what happens in the wake of Valenti�s departure.
Lockergnome Bits and Bytes �Internet Avenger� Story –
More from Wired –,1367,64063,00.html
More from Yahoo News –
More from Broadband Reports –
Primer on Eighteen Hot IP Issues
Foley and Lardner�s Hal Wegner generated a lot of buzz this past week with his �18 Hot Issues in IP � A Checklist.� The list is a good one and picks up on a number of topics mentioned in the IP Memes newsletter over the past six months or so. I highly recommend it, but you may find it to be focused more on very specific issues and cases than on �big picture� matters. On the other hand, you will be hard-pressed to find a better list in one place with specific case and statute citations and links to key upcoming cases than Wegner�s list. As an aside, Wegner�s article illustrates the continuing ability of big law firms to �get� the Internet � there�s not a sign of Wegner�s article on the Foley website. As a result, the link below does not go to the Foley website. A great opportunity missed.
IP Memester Stephen Nipper�s Coverage –
Link to article on Foley website � Oops, Another Big Law Firm Missed a Good Web Opportunity.
[NOTE: I've recently heard that Foley, perhaps shamed by my comments (but I doubt it), is working on and may have now posted the article on their site. Unfortunately, they fooled me once and I'm not heading back to the site again to check.]
How Free Became Open and Everything Else Under the Sun
You can never have too much of an understanding of the Open Source licenses and the Open Source movement. Biella Coleman and Mako Hill�s recent paper, �How Free Became Open and Everything Else Under the Sun,� is a good addition to the Open Source literature, especially in an election year. It attempts to cover how Open Source works and the opportunities it offers for people and businesses of all political and economic stripes. For those who like to align their software and their politics, recent articles suggest that Republican websites run on Microsoft software and Democratic websites run on Open Source software. You are free to draw your own conclusions.
Free and Open Source Paper –
Trademark Licensing � The Good, The Bad and the Ugly.
As much as I hate to give away one of my best resources, I must mention the exceedingly valuable PLI Lawyer�s Toolbox email newsletter. What�s so great? In nearly every weekly issue is at least one link to a free download of an outline from a recent PLI program on intellectual property issues. The recent �Trademark Licensing – The Good, The Bad and the Ugly� is a great example of the useful material you can find. I�ll be kicking myself if PLI drops this feature because I mention it, but, until they do, it�s a fantastic resource, and it definitely makes it more likely that you will attend a PLI conference. :-)
Trademark Licensing Outline –
TRIPS at Ten
The IPKAT blog is always worth a visit. Take a look at the coverage of the recent �TRIPs � Ten Years Later� conference honoring the tenth anniversary of the TRIPs agreement, designed, as you may recall, to globalize intellectual property law. IPKAT highlights some of the key issues that arose at the conference and point to useful links and resources.
To Litigate or Innovate
It might be today�s most important IP question � �Litigate or innovate?� Donna Wentworth�s Copyfight blog collects three big IP hitters, Terry Fisher, Fred von Lohmann, and Kembrew McLeod, on exploring alternatives to common responses like mass lawsuits against filesharers and/or controversial and fast-tracked legislation like the Induce Act.
Copyfight post –

Killing the Goose that Laid the Golden Egg: My New Policy on Announcing Your New Blog

Tuesday, July 20th, 2004

I was shocked by the �perfect mini-storm� of blog posts I saw in the last few days advocating the following �search engine optimization� or �PR optimization� strategy.
In a nutshell, here’s how the “strategy” is described. When launching a new blog, website, business, whatever, simply contact a group of prominent bloggers and ask them to �announce� your news on their blogs. As the argument goes, you end up with great search engine placement, �buzz,� and visibility far beyond what you can expect by any other means and, best of all, it�s all free. You can use the audience and placement of the prominent bloggers to your own advantage, all for free. This �advice,� as best as I can tell, is offered without any sense of shame or conscience.
I saw examples of people advocating this strategy here, here, here, here and here.
One irony, by the way, is that I noticed these posts because I am a fan of these bloggers and might well have mentioned any of them on the strength of their posts alone. If that weren�t the case, I wouldn�t link to the posts in question and give another potential bump in their ratings. I agree with their assessment of the results of this strategy; I disagree with their approach of not considering all of the consequences of advocating this approach.
Kevin O�Keeffe, a legal web pioneer I admire greatly, also discusses this strategy in the legal blogspace in a nuanced fashion, but the casual reader of his post might easily take away a much less subtle notion of Kevin’s approach than he intends (note that Kevin’s post carefully (note that Kevin begins by saying that he was �politely asking fellow law bloggers by email if they would be nice enough to link to my blog from their law blog� � that little detail makes a world of difference).
I didn�t notice much mention in any of these posts about thanking, let alone compensating, the prominent bloggers. See the quote at the bottom of this post for one comment that was made that was especially memorable.
I don�t know that I�ve ever seen a clearer example of trying to kill the goose that laid the golden egg.
This subject (seeking blog mentions and links as a calculated method of optimizing search engine results) has been a source of irritation to me for a while now. A few months ago, someone said something to me that led me to the conclusion that some search engine placement consultants might be charging their law firm clients for the advice that the law firms could enhance their Google rankings by trying to get me and other prominent legal bloggers, all of whom you would know, to post something about the a firm’s website on our blogs. I�ve commiserated with a number of these bloggers in the last few months about the number of requests they get. I�ll also mention that I’ve seen requests that feel like orders (with an astonishing sense of entitlement), are not followed up by thank yous, do not result in my blog being listed on the blogroll of the requesting party, etc. You understand my point.
It�s clear that the promotion of this �strategy� will increase the number of requests for mentions of new blogs that I and others get. Am I right Ernie, Tom, Denise and Jerry? Of course, if you read on, you�ll see that my requests will probably decline in number, but I�ll be much more attentive to the ones I do get.
By the way, there�s no question that this �strategy� works. I�m happy to tell you that either for free or for half the amount that you are paying someone to tell you the same thing, except that I�ll tell you to ask nicely, respectfully and personally, to thank the bloggers you ask when they do mention you, and to offer something, even small, in return. The bloggers you ask would probably faint in shock.
Here�s an example of how I can illustrate the success of the strategy:
I published a post on my blog about my law firm annual meeting. Within about a week, my post was the #1 result to a Google search on �law firm retreat.� To me, that shows more about Google than about my �clout,� but that�s the world of search engines we live now live in. I also have nine years of experience getting my pages into search engines at very high rankings on the terms that I want without paying any �optimizers.� For free, here’s the biggest �secret� in search engine placement � care about what you are doing on your site.
Unfortunately, we�ve now moved to a world where blog mentions and the accompanying links are treated as one-sided economic transactions � all take and no give. Read the enthusiastic comments about the results of this strategy here and come up with a number for the dollars of economic value obtained by the use of this strategy. Consider that the bloggers who �implemented� the strategy for the beneficiaries got nothing (other than, arguably, to be shown as the chumps in crowing articles about this smart strategy). While it�s true that many of the most prominent bloggers are true believers who routinely list new blogs just as part of their efforts to promote the blog world, no one likes to feel that they�ve been publicly taken advantage of.
I�ve pulled way back from simply announcing new legal blogs already. Perhaps it was one snippy request too many. Perhaps it was seeing other blogs prominently mentioned on a blog I “announced” for someone and mine not mentioned at all. Mainly, though, people who launch blogs using this strategy tend not to follow through. They don�t have the commitment and the blog fades away and I�m left with a link to a dead blog in one of my posts that talks about �the great promise� of that new blog – chumped out twice.
Here�s what I do now. For my friends and people I like and respect, I will announce their new blog. If you send me a note about your posts that I might truly find interesting and I see, over a period of time, that you post consistently good content, I probably will mention you. If you are doing cool things and have great content on your blog, I�ll probably mention you consistently, because that�s what I care about.
Now, in response to the apparent advocacy of this “take advantage of the prominent bloggers” strategy, I�m formally adopting a new policy on mentioning new blogs when people send me an unsolicited request to mention them on my blog.
In these cases, I’ll announce new blogs that I find acceptable to me in exchange for one of the following:
1. You provide me with five decision-maker level personal referrals to potential clients for my services;
2. You purchase a sponsorship or advertising option on my site which will include placement in a list of �highlighted blogs� on my site for a limited amount of time, which can be extended for further payment;
3. You provide a reasonably equivalent mutual benefit to me in exchange � I�m willing to be creative and there are audiences that I currently do not reach that I would like to be in front of;
4. If we can agree, you pay me an amount that fairly reflects the economic value you believe you will obtain from the mention.
Otherwise, I�ll mention blogs because I like the people, what they are doing or the quality and usefulness of their content, which is probably how it should be anyway.
It never had to be �just business,� but now it appears that that�s where we are headed. If you want to reduce interactions with bloggers to purely economic transactions, I suggest that one think twice before taking an approach that makes them totally one-sided in your favor. As for this goose, I ain�t laying no more golden eggs for free no more.
Here�s the quote to remember: �Let me repeat – 5,000 links, lots of discussion, 130,000 downloads, and 6m links/hits all generated for $0 – yes, no money!�
It�s a powerful testament to the power of blogs and feeds, but half of the equation is missing. Is this the blog world we want to create? Do principled stands like the voluntary moratorium against placing ads in feeds still make sense when others are encouraged to take advantage of the audience prominent bloggers have worked to build over the years? I don�t know the answers, but I do know that the playing field may be rapidly changing and tilting away from the “old school” philosophies of blogging.
[Note: Links now should work - an example of the dreaded "curly quote marks" problem. Thanks for the heads-up from the TechLawAdvisor.]

New Study Gives Procrastinators a Great New Ethical Argument

Monday, July 19th, 2004

Note: This is a reconstruction of the post I lost the other day when I lost my mind about Windows Updates.
Do the procrastinators in the world need any more justifications for their inactions? A new study from professors at Wharton will give procrastinators a way to take the moral high-ground when questioned about why they are lying on the couch all day watching television instead of doing something �productive.�
From the excellent Knowledge@Wharton email newsletter (now with a feed):
Goal-setting and Cheating: Why They Often Go Together in the Work Place
�From childhood on, individuals are told that setting goals for themselves will make them more successful in whatever they set out to do — whether it’s win tennis games, ace their exams or become CEO of their company. But goal-setting also has a dark side to it, according to a recent research paper by a Wharton faculty member and two colleagues. In addition to motivating constructive behavior, goal setting — especially if it involves rewards such as bonuses or perks — can also motivate unethical behavior when people fall short of the goals they set or that are set for them.�
I�ve often found �getting around to goal-setting� to be at least as problematic. The breakthrough I had on that subject, however, came from some comments from goals guru Brian Tracy. Tracy says that if at the beginning of each year, you take the time to formulate ten legitimate goals (specific, measurable, attainable, etc.), write them down on a piece of paper, and then fold up the piece of paper, put it away and never look at it again for the whole year, you will still find that in the average year you will achieve at least six or seven of your written goals. How liberating is that?
Don�t even get me started on the �working toward the goal� piece of the puzzle. Here, fortunately, David Allen�s �Getting Things Done� approach of identifying the �next physical action� is a huge help.
The aspect of goal-setting that gets too little attention and causes the greatest problem for many people I know is what happens when you attain a major goal, especially if you do so much more quickly than you ever imagined. I�ve seen this throw people way out of equilibrium. I have some examples, but my friends might not appreciate their stories being used to illustrate this point.
So, I look to myself as an example. For many years, I never got the hang of �goals.� I just did not compute. I blame that on the Cold War and the nuclear war drills we had in elementary school.
Finally, as my writing career started to unfold, I read an article by a famous expert I really admired that mentioned that he had published over 150 articles in his long career. I told my wife that I had found a real �goal� that I wanted to try. My goal would be to try to publish 100 articles in my career. Since I had gotten off to a late start in writing, I didn�t expect to reach the goal, but I thought that it was a good one to try for. Not quite two years later, I had blown past the 100 article goal. I soon left 150 behind and, when I last counted, I had gone by 300.
The point is not to say, look at me, look how I made my goal, but instead to focus on what happens when you achieve what feels like a very significant goal in a ridiculously short time. I really didn�t know what to think. I didn�t think that it meant that I should stop, but I didn�t know what it meant.
I felt like I stumbled around for a while trying to figure out what would come next. Blogs provided the answer. Think of Lou Reed�s song, �Rock and Roll,� and substitute �blog� and �blogging� where appropriate.
I decided that I had found a comfortable niche that I both enjoyed and in which I excelled � writing about technology in ways that lawyers especially found helpful and understandable. I knew from the way my friends ribbed me that I had mastered the �Ten Tips,� Six Steps,� style of articles. (But, it wasn�t as easy as you thought when you tried it, was it?) I wanted to keep doing that, but I wanted to do some other things with my writing, too.
My idea was to use this blog as a way to write in new ways, on new topics, and let my writing find a new audience. It�s a continuing experiment, a rewarding experiment and a great new goal for me � one that�s hard for me to cheat on. I�ve used a portion of the summer to push a little harder on that aspect of this blog, but will soon return to an approach that will either bring my posts on legal technology and technology law back to the forefront or put them into separate feeds or separate blogs.
Or, I might have another surprise in store, because now I have a new goal in mind.
Here are a few great books I�ve found to be quite helpful on goals over the last few years:
Brian Tracy�s Goals: How to Get Everything You Want-Faster Than You Ever Thought Possible – a classic work form one of the gurus.
Wade Cook’s Don’t Set Goals (the Old Way) – the �contrarian� approach really works for me.
David Allen�s Getting Things Done � the new classic that helps you accomplish exactly what the title says.

People I Know Who Are Doing Some Cool Stuff � Dativoci and BlackBerries

Monday, July 19th, 2004

In the world of big law firms, BlackBerries are hot. For many other law firms, BlackBerries are on the �we must talk about this� lists.
My friends at Dativoci are doing some cool things in the BlackBerry world that might help law firms and other small businesses.
Dativoci is a Nextel Partner who develops, integrates and licenses mobile business solutions software for iDEN handsets and BlackBerry devices. It�s also a BlackBerry Alliance Partner whose products are featured in the most current BlackBerry Solutions Guide.
Dativoci usual work entails either deploying turnkey Microsoft Exchange and BlackBerry Enterprise Server infrastructure and/or extending existing back office applications into the mobile environment.
For a law firm, Dativoci might do projects ranging from getting a firm�s document management system to work on the attorneys� BlackBerrys to supplying a full-blown Microsoft Exchange / BlackBerry Server system either as an ASP or as an onsite turnkey system. I make no secret of my leanings toward the ASP environment in the small/medium business setting.
If you are one of the many law firms considering projects in these areas, check out what Dativoci might be able to do for you.

Paczkowski Solidifies Hold on King of Headlines Title

Thursday, July 15th, 2004

There’s no one who consistently brings a new perspective on tech news and writes better headlines that John Paczkowski on Good Morning Silicon Valley.
Today, he unleashed another gem:
Maybe you should rename it AIEEEEEEE!!!!!!
Not content to rest on his laurels, Paczkowski, on the same day, follows up with:
Jackhammer noise of IE repairs finally getting through to browser users
Industry giants form “Coalition of the Willing to Hobble Your Gadgets”
Ellison takes top honors in Peoplesoft-baiting contest
Just another day in the office for John. How were your headlines today?
More headline highlights can be found here, including recent classics like:
Seagate defrags workforce
Microsoft to ask court for more time to kill off competitors
Feds supersize Ebbers’ indictment
He’s not just a headliner either – he gets off great lines in his news summaries with a seemingly effortless regularity.
Here’s the feed.

It’s Not That I’m Ungrateful: Ten Reasons Windows Update Will Drive You Crazy

Wednesday, July 14th, 2004

OK, it’s the day after the second Tuesday of the month. I know that the second Tuesday of each month is now Windows critical updates day. However, I know that I am safe because I have the automatic update setting turned on.
Of course, I wasn’t safe and here are ten reasons why the Windows Update process (which is very laudable) will drive even the most diligent and well-intentioned Microsft customers to hurl epithets toward Redmond.
1. The Windows Update URL Could Be Just a Little Easier to Find. I love this. Like anyone else who uses the Internet on a regular basis, I know that I should always be able to find the Windows Update (or at least be redirected to it) by typing in or No one can memorize the actual URL for Windows Update. In fact, if you want to choose a strong, uncrackable password, there are few better choices that the URL for Windows Update. Put it in your Favorites? Ha-ha-ha. No website in the history of the Internet has ever changed URLs of pages more often and with fewer redirectors than Finally, how about keeping the link to Windows Update in a prominent place where I can find it instead of moving it around all the time? I know the page looked different a couple of days ago. Why not keep it like it is today?
2. How about Making “Automatic” mean Automatic? If I turn on Automatic Updates, shouldn’t I be safe in assuming that when I connected to the Internet last night and this morning the updates would be loaded and installed? Here’s a suggestion: make the Automatic Update at least as persistent as the damn Windows Messenger, which one again has return to haunt me after I thought I tracked it down and finally got it out of my startup menu. The Windows Messenger team might talk with the Windows Update team and share some tips.
3. Inconvenience Me for Using Good Security Settings. Ready to get started? Oops, need to give permission for an ActiveX control to run. I wouldn’t have to be inconvenienced if I took a more risky approach to security. Here’s an idea: inconvenience the people who don’t use good security practices, not the ones who do. Suggestion: make it really easy to find and set up a setting that will permit only the Windows Update Active X controls to run without a prompt.
4. A 3.8 Megabyte Download? Does nayone really wonder why so many home users are running unpatched versions of Windows. Memo to Microsoft: either provide broadband with the purchase of Windows or make patches available in formats that are friendly to dial-up users. As many people have pointed out recently, a visit to your parents often involves installing Windows updates and other security updates. Has anyone calculated how long it takes on a dial-up line to download all Windows XP critical updates?
5. Adding Insult to Injury – the Five Minute Installation. The updates(s) are downloaded and the installation begins. All but the foolhardy wait for the installation to complete before doing anything else. I have a reasonably fast computer and the installation took roughly five minutes.
6. Don’t Let Me Walk Away and Do Something Else. Three times ZoneAlarm asked permission to allow what seemed to be the same program to access the Internet, even though I checked the “remember this setting” box. Nothing more fun than walking away for a short break and then finding that the installation process has barely begun when you return because you needed to give a permission or check a box in a pop-up window.
7. Make Me Reboot. I knew it was coming, but I remained an optimist. Great choices: close up everything that I’ve been working on or continuing to work in an unsafe OS.
8. Make Me Feel Like You Are Punishing Me For Delaying the Reboot. I really do know that these two things are probably unrelated, but why did I lose a blog post I was working on (admittedly I should know better than this) when IE would not connect to the Internet when I tried to save the post right after I chose not to reboot immediately? Why is FireFox not the answer? 1. As best as I can tell FireFox’s pop-up blocking or something else keeps me from using the formatting and URL buttons in Movable Type. 2. You can try to run Windows Update through a browser other than IE – I’ll watch. In fact, I did try it and the page would not display.
9. Don’t Give Me Any Reassurances. The reason I chose not to reboot was because I was afraid something wacky might have happened when I did. How about a little message that says “update successful and everything is working great” that promptly displays when I reboot?
10. Microsoft Isn’t the Only One. I actually like many things Microsoft does and take some criticism because I do. My beef is that they continue to make it too difficult to be a good customer. I have a whole list of others I could pick on, but they didn’t make me lose a blog post today. It’s not really fair to criticize FireFox yet on “customer service” issues, but jeez Louise there is a lot of work that needs to be done before that’s a 1.0 product. McAfee – thank you for setting up your updates so I can’t download them directly from your site with either IE or FireFox even when I turn off pop-up blockers like you tell me. There are others – you know who you are.
Look, here’s my point of view. Microsoft works hard on fixing security problems. That’s a good thing. I’d like to be happy in the Microsft desktop world because, well, because that’s where I happen to be. The last project I feel like taking on now is a full conversion out of the Microsoft world. I’m not sure anyone is ready yet to see how the Open Source model will work for security patches when Open Source apps come under the same intense and frequent attacks as Windows does. We got a taste of that in the past week when a security hole was identified and fixed in Mozilla/FireFox. (Note to FireFox – consider making it clear on the download site that by downloading the newest version and installing it I did in fact patch the problem).
It’s hard to be careful out there. Maybe we should be working on ways to make it less difficult.
Coming soon: I question why when I set up Outlook to prompt me if someone requests a receipt that I have received his or her message that the default behavior is to turn back on automatic responses for all messages. I certainly believe that I have only authorized a response to a selected message. Could that be why I suddenly got more spam until I noticed that the default setting had been changed, primarily because I saw outgoing messages being sent when I knew that I wasn’t sending any? Maybe spammers sending messages asking for receipts were getting validation that my email address was active and I inadvertently undid all the benefits of my “safe” email practices? Ironically, I noticed this after I gave a talk on spam prevention where I told people to turn the automatic response setting either to “off” or “prompt,” so my audience didn’t get to play “laugh at the expert.”
The morale of the story: when I lost a blog post, somebody is going to get criticized and the more significant I feel the loss is, the less likely it is that I’ll be criticizing myself. And, yes, not only have I heard of SharpMT, I have actually installed and used it. Unfortunately, not earlier today. Will I learn a lesson? Who knows.

A Must-read Tim O’Reilly Article on Three Key Tech Trends

Wednesday, July 14th, 2004

Every now and then, someone will ask me where I really think technology is taking us. Unfortunately, they tend to want a twenty-second answer. Lately, I tend to focus on the excitement I have about the potential of RSS feeds and how I fascinated by the potential of web services.
In fact, this afternoon, I was talking with a friend of mine who suggested that I should focus my law practice more explicitly on some advanced information technology areas and the legal issues that arise with them. He probably knew that the first words out of my month would be “you mean web services?” A while back I worked with a client who rolled out a web services app that saved them approximately $200,000 a month. My role was to develop and draft the prototype standard agreement that could be used as this company rolled out even more of these apps. For lawyers who practice the type of law that I do, those are the types of projects that are really fun. They involve creativity, judgment and ways to manage legal risks in ways that produce business benefits. I’ve never understood the approach of the “nay-saying” types of lawyers who start from the premise that in the absence of court decisions, you don’t want to do anything innovative.
That’s an aside.
Later this afternoon, I was a conference call with some of my favorite people – the other people on the board of the ABA TECHSHOW. One of Canada’s premier legal technologists, Dan Pinnington, is on that board. I received an email from him this evening with a URL for Tim O’Reilly’s recent article, “The Open Source Paradigm Shift,” which Dan noted he had read twice in the last day or so. That’s plenty enough recommendation for me.
O’Reilly’s article is an important one, that I also recommend to all. He synthesizes a lot of ideas I strongly agree with and makes them clear. As with all great articles, the artice is really about something bigger than Open Source and paradigms. My only criticism is that his conclusion is disappointing because it comes back to the more specific topics and doesn’t push his argument to its logical ends.
Because it is possible that many readers may focus on O’Reilly’s critique of looking solely through “Open Source” or “Free Software” lenses and the article may become more known for that than his underlying thesis, I encourage you to read the article carefully and hold on to your judgments for at least one pass through the article.
It’s more important to focus on the core of this article, which is encapsulated in these lines:
“Artificial intelligence pioneer Ray Kurzweil once said, “I’m an inventor. I became interested in long-term trends because an invention has to make sense in the world in which it is finished, not the world in which it is started.”[2]
I find it useful to see open source as an expression of three deep, long-term trends:
* The commoditization of software
* Network-enabled collaboration
* Software customizability (software as a service)”
When I use the term “web services,” I use it in the sense of the apps and tools that bring together these three trends. There’s a lot of very important thinking in this article. It’s fashionable these days to dismiss Kuhn’s notion of “paradigm shifts,” but get past that as well. This article is as important as anything else you may read this summer and it will reward repeated study.

Dave Winer and the Best Political Analysis You Are Likely to See in this Campaign Season

Monday, July 12th, 2004

While I admire Dave Winer‘s role in blogging, RSS and all that is happening now, I have to say that I truly admire his courage in continuing to sing his song when so often he is the target of slings and arrows.
I don’t always agree with Dave, but he’s long been a daily read of mine. A few days ago, he posted a gem of a comment on Joe Trippi and the Democrats’ “adoption” of blogging that struck me as being exactly on target.
Consider this. Dave says:
“Joe Trippi, get a clue. Geez Louise. He thinks the role of the Internet in politics is to raise money so they can run ads on TV. Look at how much good all those TV ads did for Howard Dean. You think he would have figured it out by now. The election will happen here, not there. Probably not the Presidential election of 2004. Perhaps one of our goals for the DNC is to smoke out innovative uses of the Internet by Democrats, where they’re doing more than raise money for TV ads. Put that one on the list for sure.”
I shake my head when I see John Kerry using the Internet only to raise money for more and more TV ads. I don’t get the reason this is someohow considered new politics.
If Kerry instead were focusing less on his ads and his good hair and more on the truly cool Internet technology that his campaign already has (maybe he knows about it(?)), I might be able to understand how he is able to claim his Internet savvy.
I’d like you to take a look at what Kerry’s campaign has at its disposal as a dedicated feed reader at and tell me whether you find that a little more exciting and a little more “new politics” than millions of more dollars of superficial TV ads. It’s an innovative approach that intrigues me greatly with its potential and has me discussing other uses of this technology, in law and elsewhere, with the people at MyST Technology Partners, who were heavily involved in the development of the Kerry Reader. Put that innovation as one on your list, Dave.
Of course, there is an ironic analogy with the heady days of the dot-com era where companies convinced investors that the Internet was the future and then used most of their capital to buy expensive TV ads. All that money spent on ads didn’t buy too many people’s loyalty either.

The Clearest Picture of the Future Practice of Law Comes From . . . Non-Lawyers

Monday, July 12th, 2004

Ross Mayfield wrote a post called Standard Weblog Employee Policy in which he lamented the current state of affairs for policies that govern employee bloggers. Ross’s concern was not so much what should be in the policies (although he obviously has an opinion), but more the fact that there are no “standard” guidelines for these kinds of policies. What’s worse, he fears, and I agree, is what will happen when lawyers jump in with deluxe blogger policies.
Ross sums up the concern as follows:
“Enter the lawyers. The problem is most lawyers didn’t study under Lawrence Lessig or Jochai Benkler, read Cluetrain and Gonzo, and are card carrying members of the EFF. They come from the school of fear and greed. Just think of the billable hours possible for surveying every risk, asserting control and property and taking what they can from the market. They will come up with their own agreement, backed by their opinions. The human voice of the company will be muffled and the enterprise gains little benefit.”
I’ll add that the problem is further complicated when a company compartmentalizes the legal project as an “employment law matter.” In that case, it really becomes a hit or miss proposition whether the lawyer drafting the policy knows anything at all about blogging and the blogging policy is likely to be modeled on the hardware and software use plicy or email use policy, whichever is handy. Even though I practice in the area of computer law and like to believe I have some knowledge of blogging and the related issues, I would predict that, in most cases, a company would not seek to obtain recommendations from someone like me. As a result, Ross’s fears are more than warranted.
More specifically, he says:
“Right now, they can point to the Sun Policy on Public Discourse, Groove Weblog Policy and the evolving Corporate Weblogger Manifesto as examples. They can talk their executives into considering it by pointing to Jonathan Schwartz, me (heh) and Bill Gates any day now. But its still an emerging issue.
When an employee proposes external enterprise blogging, she needs to kill off policy debate by pointing to an open and accepted agreement. Either that or wait until a court decision on corporate exposure.”
Although Ross gives the two options, it is clear that no one other than lawyers prefers the second option. The practices of lawyers are increasingly becoming a significant “friction” in processes that people would like to streamline. It’s one thing when the friction we bring into the process is legitimate risk management that addresses real concerns and issues, but it’s quite another thing when the “friction” is just plain “friction” that doesn’t seem to help anyone out other than lawyers.
Ross suggests an approach where there may exist one or more approaches that are generally acceptable, given an employer’s approach to legal risk management and its willingness to accommodate its employers, its ability to see the benefits of blogging, etc. In a manner similar to, for example, the GPL or the BSD License, a company might choose a standard approach and use a standardand easily (and cheaply) available agreement that matches its desired approach. Rather than have lawyers customize all sorts of elaborate language, the company could use lawyers to help them understand the legal risks of the different approaches and any unique issues that might need to be addressed.
Ross has stated something very important and Robert Scoble and others have picked up on the points he makes. Among other things, he has given us a good practical example of the ways that law and software do have some tendency to merge and the general concern (see, e.g., CAN-SPAM) that laws and lawyers trail too far behind where most people, not just technologies, are today. The longer lawyers offer only the option of waiting three or more years for a court to decide issues that everyone knows have practical solutions that can be quickly implemented, lawyers practicing in traditional ways risk becoming increasingly less relevant.
Mayfield’s post should be studied carefully by lawyers. Increasingly, lawyers will see clients tire of waiting for lawyers to bring them solutions to new problems and seek to find solutions that have some industry-wide acceptance and ask their lawyers to work within the constraints of those solutions. For what it’s worth, my own interests take me increasingly toward models of delivery of legal services that look more like software applications than the traditional document preparation that lawyers have done for years.

A New Approach to Blog Archives

Sunday, July 11th, 2004

One of the drawbacks of the most blogs today (or at least mine) is that if you find a blog that you like, it’s difficult to take a leisurely look through the archives of the blog to find out what all is there. With both blogs and feeds, the view you get of a blog tends to be immediate and typically does not extend too far into the past, unless you decide to devote some effort, online, to trolling through the archives.
Today, I had the idea of trying to address this problem in a simple way. I have created a simple PDF file of all of the archives of my blog, which I will make freely downloadable, so that you can read the archive offline, print it out, read it as an eBook, whatever works best for you. It’s not a small file, but I got it down to somewhat less than 700K. I’ll then update the archive PDF file around the first of every month. As a result, you should be able at any time to read all of the blog posts either on the front page of the blog or in the PDF file.
I’m not sure whether it is a good solution or even a solution at all. Maybe I’m the only one who sees this as a problem, but I consistently find blogs that I’d like to spend some time later reading through the archives.
If you think it works, or you see problems with the approach, let me know.