Electronic Frontier Foundation

Okay, so I’m probably never going to be a world class blogger, but some of you might keep this up.  With that in mind and the end of class upon us, I wanted to share a few sites about the legal concerns of blogging, whether you end up authoring Dorf-like blawgs or just blogging daily about your cute pet hamster.

First, if you just want a quick overview of what laws might apply to your blog posts, check out  12 Important U.S. Laws Every Blogger Needs to Know or 20 Law-Related Questions Every Blogger Should Know or The Bloggers’ Legal Guide at the Electronic Frontier Foundation.

The Electronic Frontier Foundation (http://www.eff.org) is the self-proclaimed “leading civil liberties group defending your rights in the digital world.”  It’s a nonprofit organization that was founded way back in 1990 (almost before Al Gore even invented the internet) and uses the expertise of lawyers, policy analysts, activists, and technologists to “fight[] for freedom primarily in the courts, bringing and defending lawsuits even when that means taking on the US government or large corporations.”   As a nonprofit engaged in costly litigation, EFF happily takes donations or lets you buy from the EFF shop.  But as far as sites go, this is easily one of the most transparent – it provides its last three annual reports for public viewing and has pictures and bios of all of its staff and directors (including lots of staff attorneys and legal fellows).  It also thanks other groups that have helped make it possible like the John D. and Catherine T. MacArthur Foundation – definitely a legit enterprise.  EFF’s history page is really interesting, describing how the organization started with a lawsuit against the Secret Service.  It was actually the case that decided that the government needs a warrant to read emails the same as intercepting phone calls – something that we take for granted today.  Read the history and all of the cool cases EFF has been a part of – it’s totally the stuff of movies.

EFF also has a tab of “Our Work” which allows you to click on their legal victories.  Besides just giving you a brief summary of the case and the holding, EFF also gives you PDFs of pretty much all of their court documents – complaints, motions, briefs, transcripts, tables of authorities, exhibits, and the court’s decision – as well as links to press and blog coverings of the issue.  That was surprisingly much more information than I anticipated from their gloat page.  Sure, it’s not searchable, but other than that it’s amazing and would definitely be the first place I would look if I had a digital freedom-type case to look up.  Why go to PACER or Westlaw when all of this is in one place for you?

Besides just the victories in the “Our Work” area, the site also gives a list of all EFF litigation.  And again, it’s surprisingly better than what I expected.  It’s not just a list – it’s sorted by topics (anonymity, bloggers’ rights, CyberSLAPP, etc.) so it’s pretty useful if you’re looking for authority on a particular electronic topic.  Even though these are older cases than those highlighted in their more current victories, they still provide helpful summaries of the cases (for instance, in addition to the Doe v. Cahill summary is this tidbit – “This is the first state supreme court to rule on a “John Doe” subpoena or to address bloggers’ rights”) and PDFs of the court documents.  The “Our Work” section also includes links to the issues that EFF addresses and something called “Whitepapers” which “reflect the results of EFF’s clear thinking on issues at the cutting-edge of law and technology.”  I read through one called Digital Books and Your Rights: A Checklist for Readers and it was very well researched (and footnoted), thorough, and thoughtful.

The site also has “Deeplinks,” which seem to be EFF’s version of blog posts – “noteworthy news from around the internet” written by staff – and “Press Releases” detailing EFF’s current projects and headlines.  Lastly (besides the joining, shopping, and donating areas), is an “Action Center” where EFF lets you easily send emails to your representatives, or a particular senator, or even the Google CEO to urge them to take or not take certain actions relating to privacy or digital freedom.  And unlike a lot of sites that write your political letters for you, EFF still gives you a link for more info on the subject so you can read up and educate yourself before sending if you want.

[Completely random side note – they have an “Opportunities” section on the left sidebar for job openings, internships, and volunteer positions.  It denied me access to the jobs page, but looking at the fun-looking people currently working there and the fact that they accept law student interns and do such interesting stuff, it looks like a great place to work…]

This field is currently such an ever-changing one that it was really nice to have stumbled upon such a well-run and informative website keeping tabs on all of it for us.  Not only keeping tabs on it, but actively playing a role in helping to shape and protect the legal realm of the internet.  Not to gush but even a technophobe like me thinks that this is really a great site and I highly recommend it to anyone interested in this line of work.  And anyone not interested should at least buy a roll of this Fourth Amendment packing tape!

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The Digital Public Library of America: The Future of Free Online Resources?

Robert Darnton of the Harvard University Library has a vision: digitalize all information and make it free for the public.  Sound crazy?  Maybe, but when “42 top-level representatives from foundations, cultural institutions, and the library and scholarly worlds”  meet to discuss making this a reality, it doesn’t sound as crazy.   The Digital Public Library of America or the National Digital Library “would be the digital equivalent of the Library of Congress, but instead of being confined to Capitol Hill, it would exist everywhere, bringing millions of books and other digitized material within clicking distance of public libraries, high schools, junior colleges, universities, retirement communities, and any person with access to the Internet.”

The idea is very simple, but of course, there are intellectual property issues, funding issues, and plain maintenance issues.  Despite these hurdles, such an undertaking can be feasible; smaller scale versions of digital libraries have existed such as the California Digital Library, the HathiTrust, or the Internet Archive.  Moreover, there are many foundations committed to the idea of free information and are willing to back it up with significant financial support.   Moreover, as Darnton notes, “Virtually every developed country has launched some kind of national digital library, and many developing countries are doing the same.”

Best of all, it truly is an open project as Darnton and the Harvard Berkman Center has set up a wiki in which anyone can contribute– in every sense of the word.  There is also a public e-mail list dedicated to the discussion of the Digital Public Library of America.  Granted, at the moment, there isn’t much discussion going on right now given its recent establishment; nevertheless, the site’s membership is already filled with many librarians and others interested in this cutting edge project, which is a great sign.

I think we can all agree that the idea of a national digital library is fantastic, but let’s consider the potential issues  and concerns in more depth.  First, isn’t this best left to the Library of Congress?  Why are we abdicating this role to the private sector?  Is this project really going to be a project funded and paid for by private foundations…forever? Could this potentially lead to conflicts of interest? I admire private foundations as much as the next person, but I am, nevertheless, concerned a bit about their private agenda– even when they usually are in line with my beliefs.  I am one who would prefer that the control or manipulation of knowledge be in the hands of…bureaucrats or some extremely neutral group of individuals.  What would happen if these foundations stop funding the project?

Second, this is a very, very long term project that wouldn’t lead to tangible results until far into the future.  And, I am concerned that people and contributors would lose interest in the project in favor of more established digital collections.  While there might be some collaborative efforts between this project and other organizations, I wonder if this is sufficient to overcome this potential problem.

Third, the elephant in the room– Google.  GoogleBooks had tried a similar project before and hit an intense roadblock known as intellectual property.  I don’t know enough since this project is relatively new, but I would be interested in knowing how this project could overcome this problem.  After all, Google managed to convince several university libraries like Harvard and Yale to let it scan their books, but that didn’t go too far for the above reason.  It’s not resistance from non-profits and academia, but from publishers, authors, and sometimes even states.

Side note: Some states even try to assert copyright on their statutes!

Fourth, why not support Google instead of trying to reinvent the wheel? Other than bashing it for taking over our lives (which it is) and for being a for-profit corporation, it has the resources, energy, and most of all, a head start on the project?

Critiques aside, I am very excited at the thought of having a national digital archive for not just legal works, but works of fiction, non-fiction, and the like.  Information should be free and the best way to set it free is by sending it out on a medium with the greatest reach–the internet.  And, for the record, I wholeheartedly support Darnton’s proposal and look forward with much anticipation on how it will turn out.

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Snyder v. Phelps: Commentary

March 2, 2011 Leave a comment

Much of this class has focused on how to go about researching the law online. And, seeing as how the course is entitled “Online Legal Research: Free Sources,” this was something I fully anticipated. But this course also touched on the concept of a blawg (i.e., a blog that focuses on legal issues). To be sure, in addition to using the internet to conduct legal research, the web can also be used to find legal commentary. Further, given the fast-past of the internet, one can find such commentary very quickly. Earlier today the Supreme Court handed down its decision in Snyder v. Phelps. This controversy at issue in this case stems from the funeral of an American soldier. Near the funeral site members of the Westboro Baptist Church, Inc. (and especially Fred, Shirley, and Rebekah Phelps) arrived on site picketing signs with such phrases as “God Hates the USA”, “Thank God for 9/11”, “Fag Troops” and “Thank God for Dead Soldiers.” The soldier’s family brought a tort action against the Phelps for, among other things, intentional infliction of emotional distress.

The Supreme Court granted certiorari to address decide whether the family’s interest in recovering in tort for the funeral disruption outweighs the disrupters’ freedom of speech rights. Today the Court decided 8-1 in the negative. Because the First Amendment is one of those areas of law that people tend to widely diverge on, I thought it would be interesting to read some blawgs and commentaries discussing this case. The remainder of this post will address and comment on some of two of the commentaries that I read.

The first commentary I looked at was written by a military veteran. He expresses disgust and shock at the Court’s willingness to allow the desecration of a funeral in exchange for what seems to be, at heart, media attention. Although the commentary seems to emphasize that the demonstration was particularly heinous in light of the fact that the funeral was commemorating a fallen soldier, the veteran does reveal that he thinks society should “respect funerals, regardless of who died.” A particular point that I find to be particularly insightful (and ironic) is the actuality that the protestors are condemning soldiers, but it is “the soldier[s] who fought and died to give them free speech in the first place.” The veteran then goes on to question why the funeral site is a venue worth protecting. He points out that AM talk radio is a protected forum both under the Constitution and the FCC. Although the intentions of the Church demonstrators were likely already obvious, this fact is what upsets me the most. The way I see it: the First Amendment protects the communication of ideas to the public. And it absolutely should and must. But does that necessarily also mean that people get to choose where to speak? Why speak at the funeral site if not to inflict some sort of harm? Wouldn’t their message reach a larger audience on AM radio anyway? And if their concern is with reaching a particular audience (e.g., this particular family), why not send them a one-time letter expressing their views? Although funeral-goers are likely not the traditional captive audience, it’s also likely that people present at a funeral don’t necessarily feel free to just up and leave if they’re emotionally injured. Why? Well, as the veteran in this commentary himself explains, “funerals are solemn, sacred ceremonies, respected by individuals and religions around the world.” Ultimately, I find a lot of merit in the veteran’s argument that “common decency must take precedent when people are at their most vulnerable” and that “[f]unerals are no place for political or any other kind of protest.”

The second commentary that I considered was a paper written by Eliyahu Fink, the Rabbi at the Pacific Jewish Center in Venice, California. Fink proposes that the First Amendment should give way when words outrageously cause actual and intentional injuries. He reasons that when words cause injuries, the result may not be different from battery or assault. In effect, he suggests that societal interests in freedom of speech don’t justify allowing speech to intentionally cause identifiable injury. He posits, “when someone is so affected by words that they cause physical harms perhaps the speech should be unprotected and allow for tort claims and let the jury decide if the claim is meritorious.” I think this proposal has some initial appeal intuitively. My concern with this the flexibility which this standard creates. Are we more concerned with the intentional infliction of distress or with the resulting distress? Because clearly, they don’t often go hand in hand. Under this proposal, I’m not sure what we do when we have a particularly susceptible or vulnerable victim who is very much damaged by words, when those same words would be unlikely to similarly damage other people. Is this something the jury is going to deal with? Do we invoke the eggshell doctrine into this context? I think this is a good starting point that can be expanded upon.

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LexBlog

March 2, 2011 Leave a comment

LexBlog is of the same family (and the parent site, I suppose) of websites such as LexTweet and LexMonitor. LexBlog itself is an company that provides Web-based services to customers, and is targeted toward lawyers and law firms looking to start a blog.  While it is a for-profit company that “designs, markets, and supports” blogs and bloggers related to the legal field, the fruits of LexBlog – namely, the blogs themselves – are available to the public in a well-organized fashion. This can be very helpful when trying to research a topic or look for trustworthy and authoritative views from notable firms and distinguished practitioners.

One might think that LexBlog’s sister (daughter? second cousin?) site, LexMonitor, would be the more relevant one when discussing blogs, since it is billed as “a daily review of law blogs and journals”. While LexMonitor is useful in providing a daily digest of blog posts on various topics, and had some handy features, it was difficult to find what I was looking for. LexMonitor categorizes blogs by practice area, and the site also contains an alphabetical list of blogs and authors. However, it was difficult to tell with any certainty what topics were covered by each blog from their title alone, and searching within that list was difficult. While LexMonitor provides some sort of search capability, a search for “trademark law blog” on the home page only turned up a list of the “Best in Law Blawgs” and other digests taken directly from LexBlog. The results also did not appear to be listed either by date or relevance, and I was perplexed at the lack of blogs that met my criteria. Finally, the content itself differed from LexBlog. While LexMonitor had a useful practice group breakdown, and even categorized blogs based on the focus (practice group or academic – even including a list of blogs by law students), some of their law students posts did not discuss the law at all. In fact, one blog in that section came from a veterinary college and was devoted entirely to treating horse diseases.

Not so with LexBlog, where after clicking on the “Network” tab on their main page and then clicking on the link to their list of AmLaw 200 blogs, a search for “trademark law blog” resulted in dozens of blawgs written by all types of firms on intellectual property matters, including trademark law. Most of the blawgs listed were quite good, focusing on current events and upcoming or pending cases. Another plus – they were listed in chronological order! Clicking on each result brought me to an overview of each site, and listed the relevant topics that each blog covered, so I was able to see at a glance where a blog might be more or less helpful to me. I realized that the disparity between the two sites and the blogs covered probably came from the fact that LexBlog lists the blawgs it helped produce (increasing both the quality and relevance of each blawg), while LexMonitor seems to be more of a collection of various blogs, though some of the same blogs appeared on both sites.

Overall, neither LexBlog nor LexMonitor was particularly user-friendly, though LexBlog provided more helpful results, and if LexBlog also had the ability to sort blawgs by practice group, that would be an immense help. I would not want to use either site to find the answer to a particular research question, but LexBlog seems to have some news and blawg posts that would be helpful to those interested in learning more about the current landscape of an area of law and seeing what issues are popular right now.

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Mark Litwak’s Entertainment Law Resources

March 1, 2011 Leave a comment

Mark Litwak is an entertainment lawyer based in Beverly Hills, California. He has written several books in the field of entertainment law and the entertainment industry more generally. (The books, as well as software programs on entertainment contracts, are available for purchase on his website at http://www.marklitwak.com/store/.)

I first came across Mark Litwak’s website on entertainment law resources (http://www.marklitwak.com/) back when I was applying to law schools, out of curiosity as to which law schools have good entertainment law programs. (Evidently, my choice of law school was more influenced by other factors in the end.) The most applicable part of the website to me at that time was his FAQ page on Career Advice where he answers several typical questions, including which law schools have good entertainment law programs, how to learn more about entertainment law, and how to break into the entertainment law field.

Besides Career Advice, the website also has several other FAQ pages. For example, the FAQ page on “Copyright” answers practical questions writers may have about protecting their work and avoiding copyright infringement of others’ work. In addition, the website has numerous articles covering such topics as how to break into showbiz (as lawyers, actors, writers, etc.), a glossary of industry terms, and tactics and strategies in a film distribution deal. Further, the Resources page provides a myriad of useful links, ranging from industry links (e.g., filmmaker incentive programs), to government websites (e.g., U.S. Patent and Trademark Office), to legal research and information (e.g., Volunteer Lawyers for the Arts). And for a fun and interesting look at various film festivals around the world, click on the website’s Film Festivals tab. Lastly, the website also links to Litwak’s blog, which posts information about recent entertainment law cases as well as more practical information (e.g., a checklist of information you’ll need in order to register your scripts and films online with the Electronic Copyright Office).

All in all, Mark Litwak’s Entertainment Law Resources provide a wealth of helpful information to people in the entertainment industry.

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Doing Business

March 1, 2011 Leave a comment

I am quite surprised by Doing Business, which provides a list of comprehensive research reports of the regulatory environment conducive to operating a mall and medium size business across 183 economies. All of them are free, which is too good to make me believe. With the doubt about its authority, I searched “doing business” in Google but got nothing special. Then I changed the keywords to “Doing Business Report” (DBR). Then Google showed me a list of different news citing different versions of DBR. I was convinced then this is an excellent website!  

“Doing Business” is the official site of “Doing Business Project” by World Bank Group. The Project “provides objective measures of business regulations and their enforcement across 183 economies and selected cities at the sub-national and regional level”. The research is conducted in a cross boarder co-operative way. The contributors of the reports are more than 8,200 lawyers, accountants, judges, businesspeople and public officials of 183 economies (among which China has 53, who agreed to be acknowledged) I again checked the name list of those participants from China. Majority of them come from leading law firms, accountant firms and companies. In large extent, I think it assures the accuracy of the reports.

The bulk of the data in Doing Business consists of annual reports from 2003. As time goes by, the coverage of economies and the number of indicators become larger and larger. (The first Doing Business report, published in 2003, covered 5 indicator sets and 133 economies. The 2011 Report covers 11 indicator sets and 183 economies. ) Topics covered are basically categorized under  Starting a business, Dealing with construction permits, Registering property, Getting credit, Protecting investors, Paying taxes, Trading across borders, Enforcing contracts, Closing a business. Another worth mentioned feature of Doing Business is its “Ease of Doing Business Index”. Economies are ranked on their ease of doing business, from 1 – 183.

Doing Business is focusing the relationship between laws and economic outcomes in its broad covered economies. The aims are “not only to describe and explain various features of legal systems but also to explore how they work in practice rather than in theory, to compare the legal systems of different countries, to draw inferences about how the characteristics of legal systems are related to various social and economic outcomes, and, last but not least, to propose legal reforms. See the related article here”. There is a tab named “Law Library” in Doing Business. It allows you to search within the 183 economies for a comprehensive lists of law related to operating business in the economy. Again I tried Chinese Law I checked “all “topics. It gave me a long list of laws under Trade Laws, Tax Law, Securities Law, Land and Building Law, Labor Law, Constitutions, Commercial and Company Laws, Civil Procedure Codes, Bankruptcy and Collateral Laws, Banking and Credit Laws. Most of them link to me active website of very official and lated version of the law.

My last comment- I believe Doing Business will not disappoint you!  

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Domain tools

February 27, 2011 Leave a comment

The investigative skills of an attorney can be the difference between winning and losing. With more and more of what we do happening online, being able to track down web users and website information will become a very important part of online investigative work. “E-discovery” is essentially discovery dealing with evidence in electronic format. A quick google search of “computer forensics” reveals numerous tools that allow individuals to gain access to hidden data on a computer. E-discovery and computer forensics is a broad and fascinating subject. Today, I will focus on the online aspects of computer forensics, which includes WHOIS, reverse WHOIS, DNS, or IP searches.

Want to find out more information about a site making defamatory comments about a client or infringing on a client’s trademark rights? Using a WHOIS look up on a website address can yield useful information as to who registered the site, when it was registered, when registration will expire, and where the site was registered. You can also find out what other websites were registered by the same person (or company). Often times, contact information such as phone number, (real world) address, and an email address can be found when conducting a WHOIS look up. A WHOIS look up is probably the single most important query you can use to track down information about a website and it’s administrators. A DNS or IP search seem to both track down information based on an IP address.

An IP address is basically the address that your computer uses while online. It can be used to track down your location or access your computer (with or without your permission). An IP address can also be used as a website address if the site does not have a registered name. For example, wikileaks’ domain name was shut down recently, which is why they now use an IP address for those wanting to access their site. Using an IP query, you can look up their IP address, which yields a PO Box number in Australia.

When “cornell.edu” is used in a WHOIS look up, you can see that the domain name was first registered in 1985 and the contact information for a “technical contact” as well as an “administrative contact” are available.

A “reverse WHOIS” look up is used to determine what domain names are associated with a particular individual’s name, email address, or physical address.

Most domain tools websites allow you to make basic queries, but to get in-depth reports you almost always have to pay a small fee. One of the more popular domain tools websites used is http://www.domaintools.com/.

 

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