Silicon Valley Media Law Blog

Hope to see you at the E-Commerce Best Practices Conference at Stanford Law School on June 13.   I think it's consistently one of the best events around about online legal issues -- credit organizers Roland Vogl, Mark Lemley, and Ian Ballon, among others.  I'm moderating a panel -- the agenda's here.   It's really the audience that makes the event what it is-- always a great turn-out of the Valley legal crowd.

Last night Creative Commons celebrated the 5th anniversary of the launch of the Creative Commons licenses!    I attended the San Francisco celebration -- JD Lasica has blogged what was a wonderful event.   Also blogged by Freedom for IP.

In connection with the celebration, Science Commons announced a Protocol for Implementing Open Access Data,  to enable scientific databases to be legally integrated with each other.

I was asked to give a few words at the reception before the event about my involvement with Creative Commons.  For me what was most remarkable were two things -- how Creative Commons has helped enable participatory media, and how Creative Commons represents an unprecedented collaboration by lawyers worldwide.

My law firm has been at the center of innovation in Silicon Valley, having taken Apple, Netscape and Google public, for example.  I personally came back to Palo Alto fifteen years ago after practicing as an entertainment lawyer in Los Angeles.  Back then we talked about “multimedia” and the promise of media and technology convergence.

But it turned out the promise couldn’t be realized just by corporations pursuing a holy grail of sorts, for many reasons. Some entrenched interests saw this as a side show for “ancillary rights,” or as a legal rights-clearance minefield, or as a potential threat to their core business models.

What happened instead as everyone knows in breaking down the barriers to convergence was consumer empowerment through technology -- the end to consumer passivity. Consumers deciding when, where and how to experience content. Consumers deciding to publish and share their own content – video, music, photos, blogs. 

What was missing were tools for consumer empowerment, to enable the necessary legal licensing permissions.  As a lawyer, Larry Lessig and the other founders saw how the perfect storm of digital copyrights could be an impediment to participatory media. Creative Commons created a solution, a legal licensing toolkit, in the manner that the open source software licenses gave developers tools to share their code.

We wanted to be part of the solution, so we joined the pro bono legal team at the outset. We’ve helped with the core licenses, some of the variations, and various legal issues along the way, for general counsels, Glenn Otis Brown and Mia Garlick, and now Virginia Rutledge. 

In fact, the Creative Commons story involves a tremendous collaboration in the legal field. We worked as a team with other lawyers, including John Brockland – the goal was clarity so that creators and lawyers alike would have a usable document that people could actually understand and rely upon. The internationalization of the license on a country-by-country case is an unprecedented achievement, occasioned by the unique issues around content rights that vary by territory.  It’s like a legal wiki and we’re proud to be a part of all that teamwork. Stanford Lawyer did an article a few years ago about it, called "Some Rights Reserved," which is posted here in this issue with my partner Nicki Locker on the cover.

To bring the media convergence story current, in the Web 2.0 world of long-tail content and participatory media, plenty of business ventures that we work with ask us how can they use Creative Commons and make those licenses an option for individuals who are sharing content on their social networks or publishing platforms. 

To measure the reach of Creative Commons, I did a Google search yesterday and got 29 million results. To put it in perspective, that beats Elvis Presley at 21 million and American Idol’s 27 million. However Paris Hilton and Britney Spears are still way ahead at 42 and 62 million respectively, so there’s clearly still plenty of opportunity!

So here’s to 5 years of hard work by everyone and to the great success of Creative Commons, the incredible passion and energy of the dedicated people literally throughout the world who have made Creative Commons what it is today, and to its bright future!

Hello again and happy fall. If you follow my blog you may have noticed that I took a hiatus that lasted through the summer. While I’ve enjoyed some time offline, now I’m really missing the blogging community and glad to be jumping back into the conversation. 

Since my last post was about a law school event at Yale, I guess it’s fitting to restart with a note about an upcoming event at Harvard. I am participating in the 2007 Law, Technology & IP Career Panel, hosted by the Harvard Journal of Law & Technology, and speaking on a panel about "Why Practice Technology and IP Law?"

I’m looking forward to the panel as it’s a great opportunity to reflect on why I love what I do and to meet others who are excited about this area of practice. My focus is on the media law side of technology, namely the on-going theme of digital convergence and the intersection points of technological innovation and artistic creativity. It’s about new uses of digital content and the evolving habits of the digital consumer, so what I deal with is always something novel, innovative, and intellectually interesting.

Here are the details:

Date: Tuesday, September 18
Location: John Chipman Gray room, Pound Hall (2nd Floor), Harvard Law School
Check-in: 6:30-7:00pm
Panels: 7:00-8:30pm
Reception: 8:30-10:00pm

Harvard is my undergraduate alma mater so I am looking forward to being in Cambridge. I’m going with my son, who plays Pop Warner football, so we’ll probably head over to Soldier’s Field too. Hope to bump into old or new friends while we’re there!

Yale Law Women host a conference March 31 titled “Legally Female: What Does It Mean to Be Ms. JD?" where Ms. JD, a new weblog and online community for women in the legal profession will be introduced.  Here is the conference schedule.

I am participating on a panel titled "Technology as Tool", which will "focus on the practical implications of the technology revolution for the lives and careers of women in the legal profession.  Panelists will discuss how women can harness technology to achieve their goals, including a special look at blogging as a mobilization and empowerment tool."  My fellow panelists include Ann Bartow and Katherine McDaniel. 

For this exceptional event I will gladly take some Lux with my Veritas.

Santa Clara University's High Tech Law Institute is sponsoring a get-together for Bay Area legal bloggers, and other kindred spirits who blog or are interested in blogging, this coming Wednesday night March 28 from 6-8pm at SCU:

Says organizer/host Eric Goldman:  "Our goal is to get all of us together in a room to meet each other, socialize a bit, and discuss topics of common interest in a group discussion" -- potential discussion topics here.

We're looking forward to it!  More details are here. 

I was interviewed recently by Ari Kaplan of Law.com for an article on lawyer blogging. Ari got a great quote from Doc Searls that was right on point:

"Lawyers are ahead of most professions because they're trained to write and they're trained to think out loud, which is a lot of what blogging is about," says veteran blogger and co-author of "The Cluetrain Manifesto," Doc Searls. 

My point in the article was that if business people are reading blogs for business intelligence, shouldn't lawyers be tapped in as well, at least as readers to know what's going on, but also potentially as contributors to add value to the conversation.

"Kirkman's point is supported by a Harris Interactive / Makovsky & Company State of Corporate Blogging Survey released in early May. It revealed that corporate executives are reading blogs, possibly more often than their lawyers think."

Of course since you're reading this on a blog, we're preaching to the choir.

Guy Kawasaki has a post about BlogHer -- it has a photo reel of attendees, which includes a slide of myself with fellow panelist Nina Smith.  I enjoyed talking with Guy, and I like the FilmLoop offering he's promoting.  I am going to try using it -- it provides an unobtrusive way to embed rich content into a blog post.  

Here's also a photo with my other fellow panelist Deni Bonet.  She's a singer who plays with folks like Cyndi Lauper and thus compensates for my staid lawyer factor.   Heather Barmore liveblogged our session on transforming your life through blogging, check it out here (thanks Heather!).  Colette Vogele has a post about another session on the impact of blogging, here.

In addition to Colette, it was nice to see other law bloggers there.  Kimberly Kralowec of the UCL Practitioner Blog has already posted on this.  Also great to see Craig Williams of May it Please the Court Blog, who is part of the law.com network like myself.  Thanks also to Francis Pileggi for taking note and being there in spirit-- his blog on Delaware litigation is a terrific resource.   Both Francis' and my blogs are hosted by Lexblog, and Kevin O'Keefe also did a post on this.

Also enjoyed speaking with Marc Canter -- I didn't mix him up with Dave Winer, but then again I'm a brunette, cf. Winer's post, which also has some fine insights about what it feels like when the norm that you're used to is turned on its head.   It was also great to see Maryam Ghaemmaghami Scoble there, whose post provides the perfect counterpoint, especially given that she certainly has seen it all when it comes to tech conferences.  

Hope to see you all there at BlogHer next year!

I'm speaking on a panel today at BlogHer 2006, on the topic of "transforming your life with blogging."   As timely evidence of the impact of blogging, yesterday the San Jose Mercury News ran a page one story on the conference, which mentioned me and my blog, along with several other local blogs written by women, including Charlene Li of Forrester Research, Christine Herron of Omidyar Network, and  Grace Davis of the Hurricane Katrina Direct Relief Blog.   See post by Beth Blecherman of Silicon Valley Moms Blog, which was also featured in the article, for more details.

Here's the blurb on the session today:

Transforming Your Life. Yes, with blogging: Nina Smith, Deni Bonet and Cathy Kirkman each have very different stories about how they used blogging to make radical changes that transformed their lives. A lot of other BlogHers do too. Get inspired. Get an idea.

I would  suggest that in classic Silicon Valley style, BlogHer founders Elisa Camahort, Jory Des Jardins and Lisa Stone have also had a transformative experience with BlogHer -- first a great idea, and now a business venture.   As Elisa Camahort told the Mercury News, "BlogHer the conference became BlogHer the community and then BlogHer the business."   Congratulations to these entrepreneurs on the success of the venture to date, and we'll continue to watch them take it scale!

 Technorati Tags: BlogHer, blogging, blogher06

It's summertime, hence less blogging, and more reading like Paul Goldstein's new novel, Errors and Omissions, which was published this month by Doubleday. 

It's a Hollywood suspense thriller about a copyright lawyer named Michael Seeley who is drawn into a web of intrigue when he is asked to research who owns the rights to a blockbuster movie property.   Seeley is an author's rights lawyer who's already dealing with a few problems, like potential disbarment, and now has to deal with a script written during the Blacklist era.  The characters are memorable, from Mayer Bermann, the manipulative studio head with Old World secrets, to Dr. Reimer, the fastidious young German lawyer who would rather get beat up than break attorney-client privilege.

Paul Goldstein was my copyright professor at Stanford, so I admit my bias, and of course I think being a copyright lawyer is super exciting.  That said, I couldn't put the book down -- it's easy vacation reading that keeps moving and has great plot twists.   When you're done you want more -- the sequel, the film.  Here's a transcript of my interview with Paul:

CK:  What made you decide to write a novel?  Your list of publications is very long, but has always been about the substantive law as far as I recall, although Copyright's Highway was the work of a storyteller.  

PG:  I wrote fiction--mostly short stories-- actively all through high school and college. Years later, at about the time Copyright's Highway was getting me back into the rhythm of narrative, I worked on a  fascinating copyright case involving the James Bond movie franchise, and had one of those "What if?' moments that triggers so much fiction. You know, what if the screenplay was written during the Blacklist era....And that's what led to Errors and Omissions. 
 
CK:  How did you decide on the subject matter?  Was this already an area of special interest?  (I wrote my senior thesis on Thomas Mann and now think the topic of his Hollywood days would have been far more interesting than what I selected).

PG:  I've long been interested in the Blacklist and in the era of the old Hollywood moguls. This was a good occasion to do some deeper research into both. 
 
CK:  How does the story draw from your personal experience?  I expect you have dealt with some intricate chain of title issues, for example.

PG:  Certainly, work on the James Bond case provided insights--Pierce O'Donnell was the lead trial lawyer in the case and did a wonderful job-- as did my work sorting through copyright chains of title--particularly, as in Errors and Omissions, when the work implicates foreign points of attachment. My work on Tasini v. N.Y. Times also helped sharpen my views on the importance of protecting authors' rights which, as you know, is a central theme in the book. 
 
CK:   I really like your easy style and on-the-mark but unforced descriptions.  Who are your literary heroes and inspirations?

PG:  In the field of legal fiction, I've always admired Scott Turow's work, but my tastes--and I suppose my influences--are fairly catholic, and would certainly include Chandler, Hemingway and Raymond Carver. 
 
CK:  It feels like there could easily be a screenplay and/or sequel here – any word on this?

PG:  Definitely a sequel--which I'm working on now and will find Michael Seeley in and around San Francisco and Silicon Valley. 
 
CK:  In terms of the copyright law in general, what issues or developments are most interesting to you these days, in terms of recent cases, proposed legislation, etc. -- any words of wisdom to share?

PG:  I'd keep my eyes on the Orphan Works legislation and on the AAP v. Google litigation.
 
CK:   In terms of Grokster, at the Stanford forum last summer on Grokster I think you said intent-based tests are a disaster and the case ultimately might not be that significant and instead might be viewed as a unique set of facts.  Am I misstating this, and/or where do you think we are a year later?

PG:  I predicted that, apart from possibly making summary judgment harder to get in these cases because of the new factual focus, Grokster would have little effect. Nothing I've seen so far suggests different. 
  
CK:   What does it feel like to switch out of serious law professor mode to novelist mode?  I hope you're having fun with it.  That's it -- I won't abuse your kindness with another question.  

PG:  Who said I switched out of serious law professor mode? I've always enjoyed keeping several projects going at once, particularly when--as with my teaching, writing and practice, and now fiction--they are complementary in so many ways.

Colette Vogele is live-blogging the 3rd Annual Stanford E-Commerce Best Practices Conference here.  We contributed to the content syndication and monetization panel, with Bambi Francisco of Dow Jones MarketWatch and Matt Burrows of Apple Computer.  Other blogged panels include copyright risks, end user agreements, general counsel forum, employee activities, data privacy, and international issues.   The conference was organized by Mark Lemley of Stanford Law and Ian Ballon of Greenberg Traurig.   Great conference -- a lot of practical advice you can use and feels like reunion time for Silicon Valley legal players.  See prior post with background on the conference.

Update:  Collette's blog.  She also is co-author with Mia Garlick of the Podcasting Legal Guide, a terrific resource.  See Larry Lessig's foreword to the guide.

Stanford Law School is putting on the 3rd Annual E-Commerce Best Practices Conference next Monday, June 12th. Here's a link to the program.

We're doing a panel on content syndication and monetization with Bambi Francisco of Dow Jones MarketWatch, Matt Burrows, of Apple Computer, and Melinda Demsky, of Fox Group Legal.

Neglected to blog a panel we did last month, on deal structures in online content distribution at the USC IP Law Institute with Kevin Saul of Apple, Larry Shapiro of Walt Disney Internet Group and Rusty Weiss of Morrison & Foerster.

Here's a nice article naming us to the "Law Star Hall of Fame" on LawCrossing.com. What an honor, in amazing company, including F. Lee Bailey, Gloria Allred, among others!

We attended Entrepreneur 27's Women 2.0 conference today in Mountain View, which focused "on women entrepreneurs making extraordinary leaps in the technology world."

The organizers of the conference, Shivany Sopory, Wen-Wen Lam, Shaherose Charania and Angie Chang, did a tremendous job -- it was 3 hours long: first hour, interactive discussion groups, second hour, entrepreneur panel, and third hour, lunch. Perfectly done for great content and connecting with others sans exhaustion or need to duck out early and miss the buzz of the event.

We led a roundtable discussion on developing your professional profile or brand. We talked about defining a concise sound byte about who you are and what you do, and brainstormed about concrete steps to engage in your relevant community and become an active participant. This included adapting one's vision of work, and schedule, to make time to participate in your industry area.

One theme that developed was inserting oneself into the conversation -- whether in a meeting, event, or industry network. Over half the participants had their own blogs and viewed them as an effective way to communicate and connect with others. There was also talk about "un-branding", in terms of not purposefully seeking to create a brand, but rather to allow one's authentic self to come forward through one's blog or otherwise.

Other discussion leaders were:

Patricia Nakache, Trinity Ventures
Eve Phillips, Greylock Ventures
Indu Navar, Serus
Carol Sands, Halo Fund / Angel Forum
Elizabeth Bastiaanse, OQO

The main event was a terrific panel of women entrepreneurs, including:

Mary Hodder, Dabble founder
Jessica Hardwick, SwapThing founder
Elaine Wherry, Meebo co-founder
Sandy Jen, Meebo co-founder
Joyce Park, Renkoo founder
Emily Chang, IdeaCodes co-founder

Here are our notes from the conference:

1. What is different about your approach?

Mary Hodder: We have engaged in extensive usability studies, rather than just staying up all night and building something. Dabble wants to appeal beyond our ubergeek circle, to those who have never heard of Flickr. We put usability into our coding cycle, so we code for one week and the next week do usability testing. We hope this becomes normal in terms of best practices.

Jessica Hardwick: We talked to over 6 thousand users and then built the product. Also we looked at what went wrong in Web 1.0 to learn from that.

Elaine Wherry: We built on what's out there -- don't reinvent the wheel if there is open source that makes sense to use.

Joyce Park: One difference from before is now web developers are founding companies.

Emily Chang: You don't need the overhead you did before. You can market yourself through writing and blogging.

2. Is there a Web 2.0 bubble?

Mary Hodder: I think we're in a bubble. Last time, at the end of the bubble, there were no parking spots, no apartments, it took forever to check out at the grocery line. We're not at that point. But you see Dave Hornik's post on the Web 2.0 list with all these new companies, including all these video hosting sites. We'd like to partner with them, but how many do you need?

Jessica Hardwick: We are absolutely in a bubble -- people are doing a "me too" thing. Anytime you see ideas getting funded that don't really make sense, and when you see VCs without past expertise jumping into the consumer Internet space, you have to wonder.

Sandy Jen: It's an entrepreneurial bubble. But don't let labels get in the way. Don't let what people say is a bubble stop you.

Joyce Park: A bubble is a negative way to spin a positive phenomenon of rapid evolution. A lot of companies in the Web 1.0 period didn't fail, they just lost market cap. Their products are still out there. These are times when you can experiment, when the business climate will support it. In this environment, make a lot of bets on smaller ideas and let them fight it out in the market place, versus trying to boil the ocean.

3. How easy is it to get funded?

Mary Hodder: We are seed funded. Our event is building the product, versus getting the funding. However we have had VCs come to us and have received term sheets without seeking it. It's definitely a seller's market. Compared to 5 of 6 years ago, since costs are about 1/10th, you don't necessarily need to take a lot of money.

Jessica Hardwick: If you can't get money from friends and family, you probably can't get it from people who don't love you.

Elaine Wherry: During Web 1.0 you needed a vision. In Web 2.0 you need a product.

4. What is unique about being a woman entrepreneur?

Mary Hodder: The way women are socialized helps with open and inclusive communication styles, in consensus-building. However you can't worry too much about people's feelings, you have to be able to get over that and move, make a decision. You need to have confidence and be a leader.

Joyce Park: The VC community selects for extremely aggressive people. Some of the guys in the community project ultra-confidence. So this process of selection may go against women, if you are young and they don't know you, and don't have a long-standing reputation like Mary.

Mary Hodder: It can be good to have a partner or co-founder who can speak up for how great you are, as it is harder for us to self-promote. Often at conferences it's he who yells the loudest who is thought of as having the best ideas.

Jessica Hardwick: The old boy's club is alive and well, and if you're female you can't become a boy. But you can create your own network.

Elaine Wherry: It's a male-dominated industry. We're used to being among just 3 or 4 women in a computer science class. The only place it may be an issue is when people think it must have been easier to do the development work that we did because we're female, when actually we've solved something quite challenging.

Mary Hodder: We have 50% women engineers. We do communicate in different ways, and care about different things, and we think this makes the product better. Guys will name it and criticize it and move on, not taking it personally. So women need to get over being criticized.

Joyce Park: Many male engineers are unleashing their "inner cuteness" in terms of their work on Web 2.0 design.

Denise Howell has kindly noted that we're speaking tomorrow at the Milken Institute Global Conference on the subject of Intellectual Property and the New Video Revolution, along with Chad Hurley of YouTube, Darcy Antonellis of Warner Bros., Richard Cotton of NBC Universal, on a panel moderated by Dennis Kneale of Forbes.

Jason Calcanis is blogging the conference -- I plan to post my notes on the sessions I've attended. The conference has a terrific media track, for those of you thinking about attending next year.

Joe Gratz has a nice recap of the Law Seminars International blog law conference that we co-chaired with Dennis Crouch. Joe live-blogged the event, as did David Maizenberg of the effervescent Decisis blog.

Our goals for the conference were three-fold: (1) to cover what blogs mean to clients and their legal issues; (2) to discuss what blogs mean to the legal profession; and (3) to create dynamic linkages among attendees. We covered a lot of ground in two days and feel our speakers, including the likes of Mary Hodder and Denise Howell, made a substantial contribution to clarifying the state of the law in the blogosphere.

Kevin O'Keefe of Lexblog, who also spoke at the conference, has posted this recap, in which he says:

"Came out of the Blogging and the Law Conference yesterday knowing more than ever something big was afoot. This conference represented a meeting of the law with the Internet media on the subject of blogs. It's never happened before."

Back to the live-bloggers. Joe's ability in live-blogging to document and synthesize the event in real-time was almost uncanny. Joe summed it up when he said:

"I got to meet dozens of really interesting people engaging with blogging and social media from many different angles. (So few of us, for example, think about the securities law problems posed by executive blogging!)"

That's a nod to my partner Page Mailliard, who spoke about securities law issues and blogging. See Joe's live-blog summary of her talk.

As Joe puts it, Dave was the color commentary in live-blogging the event, and Dave said in this post:

"[I]t gives me hope when I meet a smart and successful attorney who is also very much a soulful human being, with wide-ranging interests and a real passion for living."

"I met more people who fit that description at the Blog Law and Legal Blogging Conference these past two days than at any other law-related conference I've ever attended. I won't try to analyze it, but obviously there is something about blogging/writing that brings such people together; perhaps the freedom of expression, or the independence of mind and self-confidence it takes to stake out an imperfect and non-corporate public identity."

What a fresh viewpoint on why we came away with such a positive feeling about the conference! We learned a lot and connected with a lot of great people. Hope to see you at the next one if you missed it. Here are my posts for day 1 and day 2. Thanks again to Dennis and the folks at LSI.

Joe Gratz is live-blogging the day again at the Law Seminars International blog law conference that we are co-chairing with Dennis Crouch of the Patently-O Law Blog. Thanks again to Joe for his incredible contribution!

See his posts today:

Rick Danis of Yahoo! on commercial content syndication

Mia Garlick of Creative Commons on open content syndication

Case study on Apple v. Does, with Kurt Opsahl, Terry Gross, Marc Martin and Bruce Johnson, moderated by myself

David Hrick of Mercer Law on ethics

Lauren Gelman of Stanford CIS on blogs and the broader cyberworld

Glenn Otis Brown on Google's experience

Report from leading bloggers, including Denise Howell, Greg Kopta and Bennett Koren, moderated by Dennis Crouch

In fact we're listening right now to Denise Howell in our final session talk about her perspective on blogging. Your resume is your cookie-trail online. Be a filter for topics that you're passionate about -- about the law and otherwise.

Denise was also kind enough to say that our conference today was a living, breathing reflection of the power of the blogosphere -- a microcosm of what is going on in the blogosphere. Thanks Denise! We think that's because of the amazing folks who decided to come and participate.

Dennis Crouch talked about how his regular readers feel like they already know him as a person when they meet.

Greg Kopta talked about being a source of expertise, such as his very specific and valuable Telecom Law Blog.

Bennett Koren of the Hurricane Law Blog discussed how his firm wanted it to be a resource rather than a marketing tool. We would submit that a quality resource can't help being both.

Denise Howell attended today's Law Seminars International blog law conference that we are co-chairing with Dennis Crouch, and Denise will be speaking tomorrow on a panel on "Real-World Report from Some Leading Blawgers."
See her comments here.

We are also looking forward to moderating a panel discussion on bloggers as journalists, featuring Kurt Opsahl of EFF. The panel was scheduled for today, but had to be moved because Kurt was in court today arguing the point. Great timing!

Tomorrow also includes "Blogging's Relationship with the Broader CyberWorld," with Lauren Gelman of Stanford and Glenn Otis Brown of Google.

Rick Danis of Yahoo! and Mia Garlick of Creative Commons will discuss content syndication models and legal issues.

And Rory Little of Hastings Law and David Hricik of Mercer Law will discuss ethical issues for lawyers in connection with blogging.

More details here.

Hope to see you there, or check out Joe Gratz, who is live blogging the conference.

Joe Gratz is live-blogging the Law Seminars International conference that we are co-chairing with Dennis Crouch of the Patently-O Patent Law Blog in San Francisco today, on Blog Law and Blogging for Lawyers.

See Joe's posts on:

Blog Technology by Mary Hodder. See also her recent post on maturation of the blogosphere.

Blogs in the Corporate World by Jodi Baumann.

Blogs and IP issues by Ray Nimmer.

Blogs and defamation law by Evan Brown.

Business of blogging by Kevin O'Keefe.

Blogs and employment law issues by Ray Hixson.

Corporate law issues and blogs by Page Mailliard.

See prior post for more details about the conference.

Update: David Maizenberg of the Decisis blog has also blogged today's session.

See also Dennis Crouch's recap of day one, and Kevin O'Keefe's post.

Thanks guys!

Law Seminars International is graciously offering a couple of free blogger passes for the upcoming Blog Law and Blogging for Lawyers Conference on April 20-21 in San Francisco. See conference agenda,Download file, or prior post for details. We're co-chairing with Dennis Crouch of Patently-O Law Blog. Please email me at ckirkman@wsgr.com if you're interested.

Here is our powerpoint,Download file, and short paper,Download file, from a talk we gave at Practicing Law Institute's 26th Annual Computer and Internet Law Institute in New York last week. The program was chaired by Peter Brown of Brown Raysman, whose firm's Technology Law Update Blog is here.

We'd welcome any comments on these materials, which are works in progress, given the rapidly evolving DRM landscape. Also, they are licensed under a Creative Commons license, so please reuse if useful!

Update #1: Dale Dietrich has suggested that we add reference to pending legislation in France that could permit circumvention of DRM to permit consumers to transfer media from format to format. See his on-going coverage here.

Update #2: Mark Cuban's provocative post on the "collateral damage" of DRM. No mention of DMCA.

Here are links to our first podcast titled "earSHOT: Ethics; Law & Social Media", as noted on the Edelman TalkShop blog:

"Edelman's Matt Harrington (President, Eastern Region) discusses "The Proper Power Of Persuasion," and Cathy Kirkman (http://svmedialaw.com/), partner at Wilson Sonsini Goodrich & Rosati talks about the key intersections between the law and social media."

We were invited to participate in the Edelman Insight podcast series by host and long-time blogger Phil Gomes. Our podcast followed the inaugural episode featuring dispatches from Davos by blogger Richard Edelman, president and CEO of the PR firm.

Thanks again to Edelman for having us on the show!

We're attending Stanford's Media X Conference, which focuses on questions of importance to academia and industry at the intersection of people and technology.

According to program director Ellen Levy, the goal of Media X is to pose the right question and seek answers across disciplines at Stanford. Media X partners include companies such as TimeWarner, Microsoft, Philips, Cisco, Reuters, Sesame Workshop, IBM, Cox, NBC Universal, Fox, France Telecom and British Telecom.

The first day featured half-hour talks, and the second day consists of student demos and six-minute presentations, in a veritable marketplace of ideas. A few tidbits:

Byron Reeves, faculty co-director of Media X, spoke yesterday about "all things gaming." He identified the following characteristics of a new gaming generation:

Competition is fun and familiar
Failure doesn't hurt
Risk is part of the game
Feedback needs to be immediate
Trial and error is often the best plan
There's always an answer
I can figure it out
Bosses and rules are less important
Gamers are used to group action
Bonds are forged beyond cultural background

This morning Nick McKeown announced a new research program at Stanford, the Clean Slate Design for the Internet. The goal of the program is to work on a future Internet that is simple, efficient and reliable. His point is that it doesn't make sense to rely on a network that is unreliable, opaque, insecure, and full of band-aids. Instead the project is working on a "future Internet" that is robust and available, inherently secure, with anonymity "where prudent" and accountabiility "where necessary".

Cliff Nass, director of CHIMe Lab at Stanford, spoke about critical trends in 21st century media. He highlighted the following:

New media steals time from other media activities
It also steals from non-media activities
No single information product will be a primary focus of users
Attention will be permanently fragmented
"Horizontalization" of media use
Attention is continually split -- even same modality media are used in tandem
Mobility is integrated with media use -- cars are fastest growing segment
Design and testing must assume multi-tasking and distraction

Update:

This afternoon Roy Pea, faculty co-director of Media X, talked about the DIVER project, which he calls a cultural remix tool for web video. He noted the following challenges with Web 2.0:

Need to move beyond tagging whole videos to address content more specifically.
Need to point to specific segments in space and time.
When you want to talk about video, why can you only use text to do it?

DIVER is a platform for marking video moments as link-addressable. It enables cultural remixing on the fly, and is all at the metadata level with no new video created. Video remixes such as through DIVER will be created, shared, rated, annotated, and discussed. He noted that user-generated and public domain content can be easily leveraged, and invited content companies to allow remixing long-tail content and experimental use of news and popular media.

Alan Sorensen discussed his paper, co-authored with Julie Mortimer, "Supply Responses to Digital Distribution: Recorded Music and Live Performances."

According to their analysis, "Overall, the patterns in the data suggest that while file-sharing may have eroded profits from CD sales, it also increased the profitability of live performances." He noted that while record labels control the lion's share of revenues from music sales, the artist controls live performance income, and thus the interests of labels and artists may not be aligned in this regard. Their analysis suggests that for every dollar received from CD sales, artists receive 2.5 dollars from concerts, up from around 1.5 in the late 90's.

In case you missed it -- Jon Stewart hosting the Academy Awards:

"Hasn't been the best year for Hollywood. The box office was -- a little bit down. Piracy continues to be a problem. So let me just say if there's anyone out there involved in illegal movie piracy, don't do it. Take a good look at these people. These are the people you're stealing from. Look at them! Face what you've done! There are women here who could barely afford enough gown to cover their breasts."

It's interesting that Hollywood can joke about this, given the fact that the MPAA does not consider it a laughing matter, with a steady stream of press releases about anti-piracy efforts.

Also, if you want to keep track of Hollywood box office, check out Qualia Capital's Qview which among other things follows week-end box office.

Please join us if you can here in San Francisco April 20-21 at Blog Law and Blogging for Lawyers Conference, which is being put on by Law Seminars International.

I am co-chairing along with Dennis Crouch of the Patently-O Law Blog, who is more organized than I am and has already blogged this. Dennis is a terrific example of how a substantive law blog can serve as a top-notch legal resource and showcase his talent and law firm McDonnell Boehnen at the same time.

What I really like about LSI conferences is they are designed for interacting and connecting, as opposed to just message broadcasting --isn't that the point of taking the time to attend in person? So we hope everyone who comes will participate and leave with new friends and ideas.

Kevin Heller at Techlawadvisor has also been very kind to post about the conference. He notes the influx of lawyers from big firms into the blogosphere, like myself and the bloggers at Davis Wright Tremaine and McGlinchey Stafford, which must be a sign of the mainstream trend to a veteran like Kevin.

Also Kevin O'Keefe of LexBlog, who is speaking about the business of legal blogging, has posted about the conference. If it weren't for Kevin, I would probably still just be thinking about having a blog in my copious free time.

We are hoping to have a lively mix of perspectives at the conference, and we are very lucky that top bloggers Denise Howell of Bag and Baggage, who has posted about the conference on Between Lawyers, and Mary Hodder of Napsterization have agreed to speak. They are both prime examples of how generous and welcoming the blogosphere and its so-called A-List crowd can be.

On the academic side, we have Lauren Gelman of Stanford Law School's Center for Internet and Society, Ray Nimmer of University of Houston Law Center, Rory Little of UC Hastings Law School, and David Hricik of Mercer Law School.

On the public interest side, we have Kurt Opsahl of the EFF, Mia Garlick of Creative Commons, and Terry Gross of Gross & Belsky.

On the corporate media side we have Jennifer Collins of American Lawyer Media's Law.com, Glenn Otis Brown of Google, Rick Danis of Yahoo!, and Jodi Baumann of Network Appliance's PR.

On the law firm side, we have Raymond Hixson of Heller Ehrman, Bruce Johnson and Greg Kopta of Davis Wright Tremaine, Bennett Koren of McGlinchey Stafford, Page Mailliard of Wilson Sonsini, Marc Martin of Kirkpatrick & Lockhart, and Uli Widmaier of Pattishall McAuliffe.

So hopefully this mix will result in a good discussion about where the blogosphere is coming from and where it is going, and a chance to meet other birds of a feather!

We also think this roster reflects a nice cross-section of speakers, in reference toLisa Stone's Surfette classic post on the subject. Lisa, along with Elisa Camahort and Jori Des Jardins, founded BlogHerCon, which is being held again this July.

Davis Guggenheim's "TEACH" documentary is now available online for free to the public through a Creative Commons license. The film chronicles outstanding teachers in South Central L.A. and the difference they make. Professor Larry Lessig and Elisabeth Shue hosted a screening this evening in San Francisco.

The film is released under an attribution/no derivatives/non-commercial license. Guggenheim commented that this license enables him to preserve the integrity of the film, and his promise to the parents and youth he filmed, while allowing for mass distribution. He also commented that the rightsholder in the film, PBS, wasn't doing anything with it, and thus with its cooperation the message of the film could now reach and inspire new audiences to consider the teaching profession. It seems important that this director who has both critical acclaim and commercial success has chosen this release approach for this film.

See this Copyright Office report, on Rights Expression Languages, which includes a discussion of the Creative Commons license tools.

Info on our involvement with CC here.

Jacqueline Charlesworth has been named SVP and general counsel at the NMPA, with Michael Simon succeeding her in the role of SVP and GC at Harry Fox. See the release.

We'll be speaking at Blawgthink 2005 tomorrow in Chicago, on the subject of blogging within law firms, myself from the large law firm perspective. We're on a panel with Carolyn Elefant, Patrick Lamb, and David Bowerman. Matt Homann and Dennis Kennedy are true visionaries in the legal blogosphere, so we'll be blogging what we learn from them and the rest of the amazing group they've assembled over the next two days!

Our blog, which focuses on media law from a Silicon Valley perspective, has joined the Law.com affiliate network, starting today. We're very excited to be syndicated through American Lawyer Media's Law.com platform, and honored to join the other bloggers on Law.com, including:

Legal Blog Watch

Robert Ambrogi's LawSites

Blawg Review

Adam Smith, Esq.

I/P Updates

Inhouse Blog

MyShingle

Prism Legal

May It Please The Court

Law Department Management

Insurance Scrawl

Crime & Federalism

The Wired GC

The Common Scold

Excited Utterances

Jottings By an Employer's Lawyer

Thanks to Lisa Stone at Legal Blog Watch for her warm welcome. These folks are some of the best legal bloggers, so we'll just try to keep up with them, and we thank them for being so welcoming.

Special thanks to Jennifer Collins of ALM for her support. And of course thanks to Kevin O'Keefe at Lexblog who hosts my blog and makes all the design and infrastructure happen for me.

We're live blogging at Bloghercon. Lisa Stone is moderating a panel titled "Suffragette Journalists: Op-ed Pages of Our Own." The panel is discussing citizen journalism by/for women, including Anastasia Goodstein, Evelyn Rodriguez, and Chris Nolan.

Lisa Stone led off by mentioning that she is a journalist who went into blogging. She doesn't want a bloggers versus journalists debate.

She asked how many bloggers were already journalists, and she asked how many people would be interested in writing for a mainstream media outlet, and found the audience mixed with both. Lisa mentioned how journalists are turning to blogging, which is emancipating them from the printed page.

Chris Stone is a journalist who started to write online, starting with the San Francisco's mayor's race. Her site went national when Gavin Newsome addressed the same sex marriage issue.

Anastasia Goodstein started Ypulse on teen issues because of her interest in youth issues, and has a journalist background also. She worked with Oxygen on their teen-produced programming.

Evelyn Rodriguez said she is not a journalist, but she is up on the panel because anyone can become a citizen journalist at anytime. She is in the technology field and started blogging since everyone else was blogging and she loves writing.

She happened to be on vacation in Thailand on December 26 when the tsunami hit. She saw the wall of water, yelled run and everyone around her started running. It took her a day or so to get online from the hospital and she posted about her situation, and continued to post from a personal perspective.

She found that a lot of people responded and saw the importance of the personal aspect of the story as part of citizen's journalism. She is going back for the one-year anniversary to blog more about it.

The question was raised whether one person's personal story is journalism. Chris mentioned that often a person story is not unique and therefore not newsworthy. However when someone is at a newsworthy event, a citizen journalist can provide a unique perspective.

Chris said the news gathering process has left the building - people feel they can make the same news judgments as salaried journalist. But it's not always true, and a lot of people are trying to figure out whether or not it's journalism. People in the business say "it depends."

blogher

We're live blogging at Boghercon. Bloghercon's panel on legal issues discusses what you need to know to blog. Moderator Jennifer Collins covers the issues with attorneys Lauren Gelman and Wendy Seltzer.

Jennifer Collins is the content director for ALM's law.com site. Lauren Gelman is the associate director of Stanford Law School's Center for Internet and Society. Wendy Seltzer is an attorney with the Electronic Frontier Foundation and is going to be teaching at Brooklyn Law School.

Jennifer Collins made the obligatory disclaimer about the panel not providing legal advice. She is asking the audience to provide case studies to discuss the issues.

One question from the audience is what sort of liability attaches to third-party comments posted on servers owned by the company?

Wendy is answering this by first defining the overall issues that come up with blogs. Substantive law includes intellectual property law and defamation law. When companies host this information, you have questions of legal liability and public relations exposure. On the legal side, there's an important protection in CDA Section 230, which gives immunity to the host of online content for defamation liability. This does not protect against criminal liability or intellectual property liability, however.

If it involved copyright infringement, you would have to look at secondary copyright liability, and DMCA safe harbor protection.
Jennifer asked the question how much risk are you assuming in this regard?

Wendy answered that usually you won't get sued, but rather you might receive a cease and desist letter to take the content down. The host who is not encouraging the infringing content should not be liable if they take the content down when asked. You don't have to refrain from hosting material - when confronted with a specific problem you should seek legal counsel as to whether to remove the content or resist the request.

Lauren says the rules while blogging are no different from the off-line world. Saying someone is a crook is no different from doing that off-line. The difference is that now publishing these things to the world in your blog, there is more ire that can be raised. These legal rules should not silence you, but you should exercise the same cautions that you would exercise in the real world.

blogher

We're live blogging at Bloghercon. Charlene Li, Halley Suit and Lisa Stone are debating how best to use the power that women bloggers have at their fingertips. The question posed is, should women play by today's rules or change the game?

Lisa has been working with various media companies to help them identify bloggers in different subject matter areas. When you go on Technorati or Google, the visibility of women bloggers is only as good as the search results.

Charlene Li says it truly matters because the game is out there and is being played, and there are certain rules -80% of traffic is generated by 20% of the blogs. People have the inclination to go where people have gone in the past. If you do care about visibility of your blog, you need to learn the rules.

Charlene thinks about bloggers as follows - wanting to be an A list blogger, those blogging for themselves. The hardest thing is playing by the rules and not "checking yourself at the door".

Halley Suitt says we should go back a bit about blogging - which is about not playing by the rules. It's a brand new medium, and it's kicking conventional rules in the ass, and isn't it high time to do something different. Blogs came of age on September 11. The NY Times set a series of essays going about 9/11. And the tone of that language was blogging. And we saw the reverberation of this within mainstream media.

A question from the audience: what are the rules of the game? This conference changes the rules, according to Charlene. First - women need to network. Two things: tell people what you can give and how you can help them, and tell people what you need. Be good at networking and that's how you get links. Second - be relevant. People find bloggers from the A-list.

Halley says her traffic came about the same way - in the beginning she happened to know many of the A list bloggers and said would you please mention the stuff I am writing about? She kept going back and asked for exposure. She is shocked that women generally don't ask. Halley so who cares if people find it offensive that you are asking for links. Ask again and again, because people are busy, and send them a link to use.

Comment from audience is that a lot of the top bloggers are friends of the people who created the technology for the feeds. Halley says if you keep asking, they will give you traffic. Push-back from audience members that have asked for links and been unsuccessful

Charlene says that A list is not Technorati 100. It depends on the field. Network, be relevant, and be unique.
Halley says whether male or female, don't limit your vision of blogging to politics. It's a technology developed to go beyond this and be very specific and far afield.

Comment from audience - do we need to be validated by traditional media? We are our own validation. We have done far more for ourselves than has been done for the past. Charlene challenges, how much farther could you go with that validation, to take it further and get your voice out?

Comment from audience - men and women network differently. Women have dense networks, while men spread out with more contacts and less depth. So be aware what the concept of "network" means in this context.

Comment from audience - people need to think about their goals, in terms of who you are writing to reach, as opposed to just getting traffic.

Comment from audience -- say something relevant and become the source on that, rather than worry about overall "top blog" lists.

blogher

We're live blogging at Bloghercon in Santa Clara. Lisa Stone, conference organizer, - wants to get beyond "where are the women bloggers" to discuss what women are doing with blogging everywhere. The mission is education, exposure and community. We also want to know how do we serve the needs of hundreds of women who have emailed us and are unable to be here? We want to create the "mother of all to-do lists" by the end of the conference. What have we learned? What would you share with other people around the world about this?

Elisa Camahort tells us that they started the process by putting up a site and getting feedback. They did a survey with an overwhelming response. Attendees are 80% women, 20% men. 1/3 have a blog, 1/3 have two or more blogs. About 15% are newbies. More than half from outside the Bay Area, many from international locations. 75% of respondents care about traffic and links, while others view blogging as purely personal - or "I don't play that game".

blogher

Mark Lemley, law professor and counsel to Grokster, and Ian Ballon, of Manatt Phelps and counsel to copyright owners, debated the merits of the Grokster ruling before a packed house at Stanford Law School yesterday on a panel moderated by law professor and copyright treatise author Paul Goldstein.

Opening remarks

Ballon commented that he hadn't held out high hopes for the Court to get it right, so he was astonished to see a 9-0 decision that in his view makes a lot of sense. He said that if you look at the Rehnquist Court's past treatment of technology cases, there's a theme of lack of specificity -- Lotus v. Borland had no outcome, and in the Tasini case the court used concepts like the feel of the morning newspaper.

Professor Lemley made clear that he was speaking as a law professor and not on behalf of Grokster. He commented that if you saw the oral argument it was predictable that the Court was going to go the inducement route. He predicted that the Grokster rule will only be as clear as an intent standard can ever possibly be. Lemley said there are two ways to read this analysis of the evidence: (i) it's an amorphous multi-factor test that will be hard to apply; or (ii) it's really a unique set of circumstances and all must be present. If it's the latter, then the holding may not be of great significance, which Professor Goldstein suggested.

Professor Goldstein said that in general intent-based tests are a disaster. He noted the historical basis in copyright for inducement, based on the Kalem Bros. case, and recalled that one of the counts in the Sony Betamax case, which he worked on, was for inducement, based on advertising. Reading assignment -- see chapter six of his treatise.

According to Professor Lemley, the impact of this case will be that the other theories of indirect liability will fade into relative insignificance, because as a plaintiff you don't have to worry about Sony and the DMCA safe harbors if you can prove intent. In other words, you can plead around these defenses by pleading intent.

A win for copyright owners

Ballon said that for copyright owners this is a big win because it encourages companies to be compliance oriented. He also opined that Grokster is a good decision for technology companies, because of limitations on vicarious liability and by making the Sony Betamax doctrine a safe harbor defense. Lemley countered that the case is only pro-technology in the sense that now they can assert three causes of action and only win one against you, but one is all you need to prevail. Goldstein agreed that the case is a pro-rights-holder decision. He argued that the discursive writing style of Judge Souter lends itself to open-ended interpretations of how to apply the inducement factors.

Limitations on vicarious liability

Both Ballon and Lemley agreed that the Court's brief discussion of vicarious liability may cause this doctrine to be tightened up. The Court stated the standard more narrowly than the 9th Circuit has done - which loosened the requirement of direct financial benefit to include more indirect benefits such as derived by swap meet proprietors (Fonoviso) and to say that even if there's no money involved there can be a financial benefit (Napster). Lemley also referred to another Supreme Court case that may result in a cutting back of vicarious liability -- Meyer vs. Holley - which applied a narrow vicarious liability standard in the employment context.

Corporate responsibility

Ballon opined that the case reflects a broader trend in the law, in terms of corporate responsibility, and the need for companies to be compliance-oriented. If you are compliance-oriented, you're not going to have a problem, he said. Lemley agreed that that's what the Court was trying to do. They are trying to differentiate the bad guys from the good guys. However the problem is not in this ambition, but in how this will end up being worked out in more litigation. As a result, he said that there's now a premium on being a big company with lawyers involved. If you're a small company, God help you.

Ballon emphasized that in discovery you're going to see a focus on internal documents. Ballon emphasized that you want lawyers involved in the R&D stage and in review of the business model. You will have a paper trail, so you want lawyers involved, and get a memo. He said that in practice there's enough uncertainty in pursuing inducement claims that there shouldn't be an incentive to sue over baseless claims.

Copyright versus patent intent

Professor Lemley addressed a question about why inducement is bad for copyright if it's fine for patent and trademark law. He said he's not opposed in concept - the problem is the way it has been applied here. If the court had simply said you encouraged infringement, that would be acceptable as inducement, but the sale of a product with bad intent as inducement is troubling. He said that the decision expands the doctrine beyond the limits of patent law, which could detrimentally affect patent doctrine. In fact, he reported that the patent bar wants a resolution that Grokster is not their inducement standard, and they don't want it imported back into patent law.

Intent for collaborative projects

Another question was how will the intent standard apply to collaborative software development projects, such as through Sourceforge? Professor Lemley responded that this illustrates how an intent standard is hard to apply. It is difficult enough to figure out a corporation's intent - the problem gets worse outside of a corporate environment. Ballon noted that in Grokster the Court pointed to marketing materials that had been prepared but not released. He emphasized the need for legal review -- if you have that bad evidence, you need to filter or do whatever you can to show compliance.

Chilling effect

Another questions was what will the chilling effect be on the technology marketplace, and what technologies are most vulnerable? Professor Lemley opined that the copyright owners have been casting about for the magic bullet -- sue somebody and make the problem go away. They've sued a succession of "somebodies" to create a choke point, but it hasn't gone away. One good thing is that it has prompted the industry to see that it's not going away and they need to participate in the market. He suggested there could be a deliberate strategy by copyright owners to discourage investment. And Grokster gives another tool to copyright owners who want to overreach. Both panelists suggested that Bittorrent may get sued, and Ballon predicted that if you type "free plus eminem" on Google, the companies in the search results are the likely candidates to be sued.

Legislation

Another question was whether legislation would shift power back to consumers. Lemley noted that the history of copyright is one of continual expansion, with exceptions granted for those with lobbying capabilities. However the technology industry woke up when the inducement bill was introduced last year, and Congress got the message that there are two sides to this debate. We might see legislative initiatives that are more sensitive to needs of technology companies. However the problem with exceptions like the DMCA safe harbor, was that those exceptions don't necessarily carry forward to cover new technologies -- it's great if your technology was considered important in 1998 when the DMCA was enacted, but the next technology won't benefit, unless it can wedge itself into one of those exceptions.

Professor Goldstein commented that in the past century, Congress has expanded copyright, while the courts have generally withdrawn copyright protection. He also pointed out that there is an international setting to this - there are limits on how much the US can reduce rights under Berne and TRIPS - for example, certain forms of compulsory licenses can't be adopted.

Closing

Professor Goldstein concluded: I get the sense that p2p is here to stay. It is a technology that has huge attractions to consumer. It has virtues over one-to-one relationships. I will be interested in licensed alternatives.

Dan Gillmor gave a talk today on "grassroots media" at the Stanford Law School Center for Internet and Society, where he is a Fellow. He commented that in the 1990s the Web was a consumption space, but today it is a creation space - the "read/write Web". He talked about the trend toward citizen journalists, and a "world of stringers" using the Flickr photo-sharing site - for "news as it happens by a whole mob of people."

However the downside that he pointed out is that there are numerous potential liability issues (e.g., defamation, copyright infringement, trade secret misappropriation) for all of these solo publishers - most of whom lack journalistic training or legal infrastructure to minimize risk. Insurance may be difficult to get due to lack of journalistic credentials, although a pooled solution could be a possibility. Pro bono and public interest legal assistance should be vital.

Cyberlaw in the Supreme Court
April 30, 2005
Stanford Law School
http://cyberlaw.stanford.edu/supreme/

This all-day program will discuss two cases before the U.S. Supreme Court: MGM v. Grokster (P2P copyright infringement) and Brand X v. FCC (FCC regulation of cable modem services).

Open Source and Intellectual Property Rights
April 28, 2005
Federalist Society
http://www.fed-soc.org/events/2005/opensource/promo.htm

This program will feature a debate between Professor Lawrence Lessig of Stanford Law School and Professor Scott Kief of Washington University School of Law and the Hoover Institute at Stanford.

Games & Mobile Forum
April 21, 2005 | New York City
http://www.gamesandmobile.com

TechInvest 2005
May 18-20, 2005 | Palo Alto
http://www.techinvest.com

We will be speaking on IP issues relating to venture investments.

USC Intellectual Property Institute
May 24, 2005 | Los Angeles
http://lawweb.usc.edu/cle/ip/

We are on the advisory board of this conference. It is a forum for cutting edge IP issues.