Leading legal blogger and Moneyball fan Marty “The Trademark Blog” Schwimmer hits a home run with a great, concise discussion of the issues arising out of similar blog names and blog-related trademark issues.
There are few things that will upset a blogger more than seeing someone start a blog with a very similar name. If you’ve found yourself in that place, you’ll appreciate Marty’s post. And you’ll find a lot of other great material on his blog.
[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]
This post brought to you by Dennis Kennedy’s half-day electronic discovery seminar – “Preparing for the New World of Electronic Discovery: Easing Your Transition from Paper to Electronic Discovery.” Contact Dennis today for more information and to schedule a seminar for your firm or legal department.

The traditional model: Supreme Court decides major case and 6 to 12 months later (or even later) serious discussion of the case and its implications appear in law review articles.
The new model: Supreme Court decides major case and immediately serious discussion of the case by a stellar panel of experts appears on a group blog set up for the purpose.
Check of the WSJ Grokster Roundtable and see which approach you prefer and ponder the future of the traditional approach.
[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]
This post brought to you by LexThink!(tm) – The Conference, Re-imagined. LexThink! – Think big thoughts, do cool things, change the world.

I was at my public library the other day and found a new book called Hot Property: The Stealing of Ideas in an Age of Globalization, by Pat Choate.
I recommend the book for your summer reading list on intellectual property because it tells so well the stories that led to the evolution of today’s approaches to intellectual property protection.
Although I suspect that most peoples’ reaction to this book will reflect their political persuasion, this review in Business Week strikes me as a fair one, even though I think that the reviewer underestimates the final third of the book, in which Choate suggests that the U.S. textile industry (and perhaps a million jobs) was sacrificed to an attempt, as yet unsuccessful, to bring the world to a more United States-like regime of intellectual property protection.
I’ll note the following:
1. You’ll be hard pressed to find a more thorough and well-stated defense of strong intellectual property laws. The most interesting question is, given that, will you find it convincing?
2. You’ll get just a hint that our IP laws favor businesses that own IP rather than individual inventors.
3. You’ll notice that the stories of inventors we got in school left out all of the most interesting parts of the stories.
4. You’ll question the sanity of an approach to IP law that throws lots of resources and effort at high school and college students sharing music files when billions of dollars worth of IP is systematically pirated in other countries.
5. You’ll wonder, if just for a moment, whether our government has been involved in the biggest giveaway of this country’s intellectual property legacy while our representatives busily work to earn the contributions of the entertainment industry.
It will make you think, and that’s a good thing. Put this one on your summer reading list.
[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

As you may know, I have a general policy not to routinely mention new legal blogs.
Today, I gladly break that policy to announce the new rethink(ip) blog. The people behind rethink(ip) have impressed the heck out of me and it’s well worth your while to pay attention to whatever they are doing. They didn’t even ask me to mention their new blog, which shows that the best way to get mentions on other blogs is not to ask for reciprocal links, but to do cool stuff and post great content.
The other excellent new blog that I want to highlight is Between Lawyers, but I think you’ll understand the reason for that.
[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Great question! And a timely one as well.
I was recently interviewed by Susan Shor on this very topic for an article that just appeared at http://www.technewsworld.com/story/40578.html. Susan’s excellent article covers a good number of thought-provoking issues that are both theoretical and practical at the same time.
In many cases, the traditional rules and procedures that we use in the paper world will cover what is needed in the digital world, if only we could take a deep breath and not panic and think that “the Internet changes everything and we need different rules because the old rules don’t apply.”
The difficulties come in three ways: (1) the traditional processes may be way too slow, (2) there is not a history and degree of comfort with what happens in the digital world on death that you find in standard “probate” procedures, and (3) non-Internet savvy lawyers, executors and trustees can easily overlook digital “assets” and may have no appreciation of the value of digital and intellectual property assets.
Here’s an example. Imagine Hunter S. Thompson had never published any books, but that all of his writings were on his blog. On his death, what value do you put on the estate tax return for the value of his “blog assets”? Trick question – of course, you want to value them at zero. However, what value will the IRS want to see and what will the IRS agree to accept?
Is your blog simply a hosting contract that should be terminated to as an ongoing liability to be extinguished or is it a potential source of income to look after your survivors?
It’s not so easy, is it? What do you think the lawyer who prepared your will / living trust will say when you ask these questions about your blog, your email and the rest of your digital life and digital assets? What is a reasonable expectation for legal representation in our increasingly digital world?
A little scary, isn’t it?
It’s another example how if you discuss blogging in almost any context, you almost invariably find yourself addressing very fundamental core questions.
Susan quotes me in the article on what, to me, became the most interesting issue raised during our phone call:
“More and more social relationships are people we know on the Internet,” [Kennedy] told TechNewsWorld. “If someone dies, there are a lot of people who should be notified. The fact that someone has died is very meaningful and a paper address book may not have closest friends. Those people who are known mainly through e-mail or online may wonder what happened. By the time things get sorted out, the funeral is long over, and it’s too late.”
[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

As part of my continuing, and increasingly desperate, effort to reach out and attempt to get the law professor blogs to take notice of practicing lawyer bloggers (especially me), I again highlight one of the law professor blogs I read on a regular basis.
Larry Ribstein’s Ideoblog is a regular read in FeedDemon for me. Some people believe that I am having fun with this series of posts on law professor blogs (and perhaps I am), but the truth is that I am mentioning blogs that I regularly read the feeds of and find quite valuable.
Today, Professor Ribstein made an excellent point that I probably would have never otherwise considered in his post called “The law and economics of blogging.”
Here, at least for me, is the money quote:
“[T]his sort of blogging (I’m still deciding what to call it) involves at least two characteristics: (1) a Hayekian system for creating knowledge; and (2) an alternative incentive system for spurring this creation. . . . By a Hayekian system, I mean that the web is a decentralized information market, where nearly infinite inputs, each perhaps inconsequential, create valuable knowledge.”
While some other practicing lawyer bloggers might use words like “impenetrable” to describe this passage, I, on the other hand, after an initial bout of dizziness, am quite intrigued by Professor Ribstein’s approach and his conclusions, which I like:
“This leads to some specific applications.
+ We should be wary about creating broad vicarious liability for co-bloggers. This is not the sort of business in the conventional sense that generally gives rise to partnership-type liability, even if the blogger does take ads.
+ “Loss-leader” posters should not face the sort of professional liability that is triggered by conventional professional advice.
+ Bloggers should get journalist-type (though possibly at a lower level) first amendment protection, e.g., as from testifying in the Plame case.”
Here’s my interpretation: Look, bloggers just want to have fun and we are having fun (even the lawyer bloggers are having fun!), so, for God’s sake can we go slow on having the non-blogging lawyers and legislators move in and ruin the fun for everyone.
If it takes a Hayekian analysis to keep the fun in blogging, then, by all means, bring on the Hayek. Can I get Hayek’s works on iTunes?
Professor Ribstein’s post sets out his thoughts for an upcoming presentation next month. Illinois is close enough to St. Louis that I might actually attend this presentation.
[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

My friend, biotech guru, occasional bicycling buddy, rock climbing teacher and patent lawyer, Kevin Buckley made the St. Louis Business Journal’s list of 40 under 40 announced last week. He certainly deserves the recognition and it’s an honor to be one of the people quoted in the article about Kevin.
As I told Kevin when he told me about this a few weeks ago, I know I’m more excited about this than Kevin is – I really like to see my friends do well and get some attention.
Kevin cares about people and he cares about biotech. It’s rare to see a lawyer with Kevin’s enthusiasm and passion about both the subject matter of the area of the law and the people involved in it.
If, in fifty years, someone writes a book on the history of the biotech industry in St. Louis, there will definitely be a chapter on Kevin. In it, Kevin will (1) consistently point to everyone other than himself for their efforts and (2) keep emphasizing that the best is yet to come. In it, other people will point to all the things Kevin has done, most of it behind the scenes, to put together people and make the industry happen.
Once Kevin has a little time to celebrate, I’ll go back to twisting his arm to start a blog.
As an aside, I’ve always said that a key question to ask any lawyer is, “What do you like about practicing law?” The best lawyers I’ve known invariably say something about liking to help people. Note Kevin’s quote in the article:
“There’s this huge disconnect between research and providing a final product to sell,” he said. “That’s really where I want to target my practice, and really where I want to help entrepreneurs.”

In almost ten years of having his own website, Dennis Kennedy says he has seen his content show up in many unexpected places. However, even he was surprised when he found a twin of his blog on the website of Bloglines.com, a very popular blog tools and RSS newsreader service.
“I had done a search on Google and found that one of my blog posts was one of the top results,” he says. “Then I noticed that the address for my post was not on my website, but instead on the Bloglines.com site.”
When he went to http://www.bloglines.com/preview?siteid=546436, he says, “I found a doppelganger of my blog. I saw my full posts mapped onto something that someone might think was my blog, but it definitely was not my blog. Worse yet, the URL in the address box in my browser showed a bloglines.com address, not a denniskennedy.com address. Anyone who came to this page would definitely think that it was my blog and probably conclude that I was part of the Bloglines team.”
When he did some more checking, Kennedy found another big surprise. The Bloglines.com addresses for his posts sometimes were ranked higher than those on his own site. In one case, however, a visit to http://www.bloglines.com/blog/cchick?subid=4563300 brought up a page that mapped his posts onto a version of Cindy Chick’s LawLibTech blog. “Hey, it’s an honor to be associated with Cindy’s great blog, but it’s extremely confusing and someone could easily believe that I was copying Cindy’s material on my own blog, or vice versa. Talk about the worst of all worlds.”
Even though Kennedy reports that his web pages have been “repurposed” by other sites more times than he ever expected over his years on the Internet, he says this time was especially unsettling. “I have to admit that my first reaction was to think that they had stolen my blog. I even went back to my own blog to check to make sure it was there.”
Kennedy, whose law practice includes intellectual property licensing matters, raises a number of questions about Bloglines.com’s practices. “There’s no question that fair use is a complicated area in copyright law, but it’s difficult to find ways to fit this example into traditional notions of fair use. I’d be surprised if they hadn’t gotten a legal opinion on this approach, since it seems so central to their business model, but I’d like to see the reasoning in that opinion.”
His main question, however, relates to the commercial benefits Bloglines.com seems to gain from his content. “With my content on their site, they are able to surround my content with their own ads and make it part of other revenue-producing activities. At the same time, they are not showing any ads or sponsor logos I have on my blog. Presumably, the Bloglines.com twin of my blog diminishes the traffic to my blog. It’s all very analogous to the early controversies over the framing of web pages, even though the technologies are different.”
However, more than intellectual property law may be at play. “Everywhere we go on the Internet, we are clicking our agreement to all sort of contracts that we may not read carefully enough,” notes Kennedy. “I’d hate to think, however, that we are giving our permission for this type of use with a click of the mouse or simply by using the Bloglines.com website.”
He sees no clear answer, for himself or other bloggers. “It’s difficult to sort these issues out. In a sense, by using an RSS feed I am exposing my content to the world and, as my friends will tell you, I probably won’t be satisfied until everyone in the world is reading my posts. In some ways, the whole scenario reminds me of a law school exam question. Fair use or not? What controls? Their clickwrap agreement, if any, the “terms of use” language on a blogger’s site or something like a Creative Commons license for the bloggers who use these licenses?”
Kennedy admits that he has expected to see some action or discussion from the Creative Commons group. “One of the Creative Commons licenses you see frequently specifies no commercial use. Wouldn’t this be commercial use? The silence from Professor Lessig and the Creative Commons group has been overwhelming. It raises serious questions about what the CC licenses really mean and how their terms will be enforced. I don’t use the CC licenses because I don’t think that they make sense for me, but many bloggers routinely apply one of these licenses.”
Do bloggers have any recourse? “That’s a great question,” says Kennedy. “Bloglines offers an RSS feed reader tool that many people I know really like. I’m one of the biggest advocates of the power of RSS feeds you’ll find. I hate the idea of seeing the development of RSS feeds slowed down to any degree whatsoever because of lawyers and legal issues. I really want to hear more from Bloglines about this issue before making any final judgments.”
Kennedy suspects that there may not be any simple practical solutions. “Of course, I’d love to see some of the venture capital money that Bloglines has gotten or will get make it back to me,” he chuckles. “Your first thought, of course, is that there should be some form of payment to the bloggers whose content is harvested and mapped onto the Bloglines site, but creating a mechanism would not be an easy job. In addition, you have the Google model, where, as I understand it, Google has actually copied my content into its databases. I haven’t gotten my check for my small contribution to Google’s successful IPO and I’m not holding my breath waiting for it to arrive,” he says, laughing.
“I always prefer practical technology solutions to legal solutions,” say Kennedy. “Maybe that’s why people also tell me that I’m not like most lawyers they meet. So, I’ve been thinking of practical alternatives.”
Has he found any good ones? “Well, Bloglines seems to be capturing and repurposing feeds rather than reproducing blog content, if I can make that fine a distinction. I look to the feeds for the solution. Although it puts a burden on bloggers, I’m giving serious thought to including a statement at the bottom of each of my feed items that gives the post’s real URL on my site and makes it clear that I’m not a participant in or an endorser of the Bloglines site. But, that only covers half the problem.”
Some may be surprised to find that in the free-ranging world of bloggers, there is one place most bloggers are afraid to venture. “The last taboo in blogging is definitely placing ads in feeds. The group of bloggers who most of us see as the inventors of blogging debate this issue endlessly and treat placing ads in RSS feeds as a defining moral issue. Those who have tried putting ads in feeds have really taken some heat.”
Kennedy laments the fact that the debate has gone on and on and seems no closer to resolution. “Between Thanksgiving and the end of 2004, I collected more than 150 blog posts on the topic of ads in feeds. It’s sad to see highly-regarded and popular bloggers resorting to pledge drives, begging and randomly-served ad schemes that probably only benefit blogs with huge numbers. It breaks my heart to see a blogger who provides great computer tips or other great information begging for donations when his or her aging computer dies, especially when companies would gladly pay for even a simple sponsor logo in that blog’s RSS feed.”
Today, Kennedy feels the debate over ads in feeds has reached the “how many angels can dance on the head of a pin” stage, with a focus on semantics and metaphysics. “I minored in philosophy in college, but the discussions in this debate can make my head spin. I hate to even comment on the current argument that it is OK to make money from blogs but not to make money with blogs. By the way, it is essential to italicize the “from” and “with” to get the real flavor of this discussion. As a practical matter, some of the explanations why one practice is a “from” and another is a “with,” make you long for the clarity of Bill Clinton and what the meaning of “is” is. I don’t want to be critical, but it’s possible for a disinterested observer to conclude that “from” is what the person making the argument does and “with” is what someone else does, at least in some of these discussions. The irony is that the whole debate has ended up putting most bloggers in the worst of all worlds – the world of randomly-served ads. How in the world that isn’t a “with” I’ll never understand. Sorry for all this inside baseball talk about blogging esoterica.”
Kennedy says that he and others are losing patience with the debate and the world of randomly-served ads that the endless debating has created. “I want to be a good citizen in the blogosphere. Lawyers already have a place in Internet history as the creators of spam. I’ve been reluctant to move to ads in feeds, despite the inquiries I have had, without a clear signal from the leading bloggers who dominate this issue.”
He reflects for a moment and then says, seriously, “The approach Bloglines has adopted, especially in my case, changes the whole nature of this debate about ads in feeds. In fact, I’d argue that it ends the debate. If my blog can be duplicated in another location without the ads on my blog or any of the other materials I might have on my blog about my products or services or other ways I might make money “from” my blog, then what are we left to talk about? The only effective choice I have to realize the value of my blog’s content and audience is to sell ads in my feed. Bloglines has brought the issue to a head. In fairness, Bloglines is not alone – you will find other examples.”
Kennedy plans to take steps soon, but he’s not looking to fill his feeds with intrusive ads. “I don’t even understand why bloggers would use randomly-served ads. It not only works against the sense of trust and authority that a top blogger can establish, but it also introduces the possibility that a randomly-served ad may make it look like you have a conflict of interest. I’ve always thought that the sponsorship approach is the way to go, with a small, tasteful logo and tagline, and possibly with a link that allowed the blogger to earn commissions on sales generated through the feed. That approach also has the benefit of disclosing a blogger’s financial relationships. It helps readers adjust for potential bias or conflicts, while offering good compensation to niche bloggers.”
Kennedy warms to the subject, “Sponsored ads in feeds are such a logical step that I’ve been surprised that there has been such a fight against them. Blogging is about freedom, but the one thing I’ve never felt free to do as a blogger is put an ad in my feed. I understand the concern about spammers and pop-up ads, but that concern doesn’t come up in the case of sponsored feeds. Each blogger can make his or her own decision. Now only the highly popular blogs can earn anything significant from ads on their blogs and corporate and academic blogs are almost immune from the question. Let’s end the debate and start experimenting. At this point, Bloglines has forced the issue and I feel compelled to move to the ads in feeds approach rather than stand idly by and watch others make money off my content.”
With a twinkle in his eye, Kennedy smiles and concludes, “As the song says, if ads in feeds are wrong, I don’t wanna be right. I’m willing to take the heat, but Bloglines has forced my hand.”
Does your blog have a twin out there?

Sarbanes Oxley is sucking away almost all of the oxygen in the coverage and discussion of records management and related issues. However, many businesses are finding that they may have issues relating to the Patriot Act, “deemed exports” and “specially designated nationals and blocked entities.”
I had an interesting discussion yesterday with Sean Tierney of Legal Technology Consulting, Inc. about the later topic yesterday. He’s developed a web-based compliance tool and is working on other compliance tools.
Let me simply give you the summary from LTC’s SDNCompliance.com site:
“The Office for Foreign Assets Control is a branch of the US Treasury and has the duty of enforcing sanctions against “enemies of the United States” as designated on a master list called the “Specially Designated Nationals and Blocked Entities.” OFAC has strict regulations regarding the acceptance of payment from individuals suspected of aiding terrorists. Many law firms may be unaware that they are expected to screen all past and potential clients against a list of nearly 5000 entities that changes daily. Those firms that are aware are grappling with the procedural and technological difficulty of adhering to a very tedious and challenging task. Penalty for violating OFAC regulations (whether knowingly or unknowingly) can result in fines of up to $10,000,000 and 30 years of imprisonment.”
As Sean noted, that last sentence will get your attention. Add one more item to your 2005 to do list.

I’m working on an article for Law Office Computing about the technology you need to start a law office. My guess is that I’ll use the article as a springboard to writing a more comprehensive eBook on the topic.
I decided that I want to have a section in the article about the Macintosh option, which seems more realistic now than perhaps it ever has. I don’t have a contact at Apple who works in or has responsibility for the legal services vertical market. If someone can point me to the right contact, I’d be grateful and be willing to see if I can a similar favor for you.