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Movable Type 4 supports John Gruber’s Markdown, which is a neat text-to-HTML conversion tool to make writing for the web easier. However, if you have certain out-of-date Movable Type templates, as I did, the Markdown code won’t convert to HTML for display in your feeds, resulting in ugliness. There’s a fix here at Learning Movable Type.

But I’m guessing that anyone else who has run into this problem already knows how to fix it because they post more often than I do. (It wouldn’t take much.)

The London office of Baker & McKenzie LLP apparently thought it necessary to send the editors of the popular BoingBoing weblog a warning letter — yes, a warning letter, even more obnoxious than an unmerited cease-and-desist — letting the editors know that Baker would be "actively monitoring your website ... to identify unlawful activity...." The "unlawful activity" they had in mind: any reproduction of media that would infringe on the rights of a company that must be (I'm guessing) the distributor of World Cup footage.

Did Baker & McKenzie send this letter to every website that has a high-traffic reputation? BoingBoing's editors, as they point out in their post, couldn't care less about the World Cup or professional sports in general (as anyone familiar with the site would know). Did the solicitors of Baker & McKenzie know that their letter would itself be posted on BoingBoing for its 1.75 million daily visitors to see and ridicule? They should have. What on earth were they thinking? I doubt that this tactic helps them or their client be taken more seriously; in fact, I'd guess that it has the opposite effect.

(Via Kevin O'Keefe.)

Kevin O'Keefe (who sells blog development services to law firms, among others) refers us to this Times (UK) story on blogging law firms.

Dennis Kennedy muses at Between Lawyers about corporate blogging policies.

Occasionally it's amusing to check the website statistics to see what search keyphrases lead people here from search engines like Google.

sorry scanner could not be initialized

No kidding. The scanner I bought from Denise on eBay didn't get along with my computer. It lives in the basement now.

gorsuch kirgis

Yeah, not any more.

verizon wireless legal department

I dealt with its subpoena response group once when I was trying to get some phone records, but I didn't write about it here. Maybe I wrote about those John Doe subpoena cases a few years ago. I did write about how Verizon Wireless tests its network coverage.

highest paid professional

That would be someone else — and I'm not complaining.

a poem about math class

Good luck with that.

I'm amused that people got to this blog using that search phrase not just once, but four times.

Here's one I found, but I can't say it does much for me.

math 3.14

"What was that number supposed to be again? I can remember part of the number, but I can't remember what they called it. It sounded like some kind of food?"

tph-lex

It's dot com.

treating employees with respect

A good idea. I've worked places where it wasn't done. Then I stopped.

any creative commons license

You wanted the Creative Commons website. Anything I may once have written on the CC licenses is way out of date.

On Between Lawyers, Denise Howell compliments Holland & Hart for venturing into weblogging despite some doubts.

For those of you who don't know, Denise is a litigator at Reed Smith. She's also the one who coined the term "blawg" a few years back. She's been writing at Bag and Baggage since 2001.

In a post vividly titled Lawyers and blogging go together like witches and stoning, Kevin Heller quoted a Wall Street Journal article about weblogging lawyers on Friday:

According to a survey conducted by blogads.com, lawyers ranked fourth among both readers and posters to blogs. Many of the best- known blogs, such as instapundit.com, are run by lawyers. It's easy to understand why blogging attracts the J.D. set: Few professions combine as much creative talent with so much mind-numbing work.

Well, that's a little uncharitable toward lawyers' work. Sure, I have tedious days, but there are countless jobs out there that are tedious every day, so I consider myself fortunate to have them only from time to time.

Even so, what we do tends to be craft rather than art, and those who have a more artistic or expressive bent naturally look for ways to develop and apply it that they don't find in their work. (I have to admit that sometimes I long for the day when I'll be able to draw on my fondness for design and typography to draft an agreement that looks like a high-quality printed product rather than something that came out of a glorified typewriter, but I don't think that's likely to happen anytime soon!)

The Denver Post article I interviewed for ran today. It's available online here. I'm quoted near the end.

I was a little surprised at first that the article tended to focus on the difficulties and resistance some lawyers have encountered because of their weblogs. I'm not surprised at the resistance itself, though. Law firms generally tend to be conservative, especially when it comes to the ways they present themselves to the world.

Knowing that, many young attorneys write anonymously. I explained this to the reporter, Greg Griffin, and it was on this point that he quoted me: It was on this point that Griffin quoted me: "I think I share with a lot of associates a general anxiety about saying something that someone with control over my future might think is unprofessional." I probably have less to worry about because I generally don't write about my practice, and I avoid ever writing about my firm. (Suffice it to say I think it's a great firm that does high-quality work and I enjoy working there. When I comment here on issues that seem to afflict the profession or certain segments of it, I hope you will not think that my firm is similarly afflicted.)

Fortunately, the article turned more optimistic after its initial paragraphs. For those who would think about writing as part of their law practice, consider this statement about Greg Piche's blog: "The blog also brings in business, in part, he admits, because it shows off his expertise. Piche said about a third of his clients found him through the site."

Apparently once Holland & Hart got over its initial anxiety about Piche's weblog, it saw fit to launch two more firm-sponsored weblogs, and I doubt they'll stop there. As the Post article explains:

For many lawyers, blogs are a natural way to stay abreast of an ever-changing legal landscape - and to set themselves apart as experts in their domain. Increasingly, law firms see blogs as a key marketing tool that's far more dynamic than the traditional website and newsletter.

I suspect that law firm marketing will, in the long run, head in the general direction that weblogs represent. I've got a feeling that regional firms and specialty boutiques stand to benefit the most from weblogs as marketing devices. But for now, I'm quite content to keep my writing here separate from my work.

When I returned from my hearing today, my secretary greeted me and said, "You had a weird phone call — it's in your voicemail. Someone from the Denver Post called wanting to ask about blogs." The intonation of the second sentence trailed upward as though it were a question, specifically, "Why does a reporter want to ask you about that?"

Greg Griffin of the Denver Post wanted to ask me about this weblog and legal weblogs in general. I hesitantly called him back — hesitantly, because the only interview I ever gave, with a college paper, ended up in some selective quoting that left me a little unhappy.

Our conversation left me wondering what I'm trying to accomplish here. He remarked that my weblog seemed a little more "eclectic" than some of the other ones written by lawyers. "Eclectic?" I wondered. "No," I thought, "Haphazard" would be a better word.

This blog has always been an experimental testing ground, and it has yet to expand into anything more. Back in 2002, curious about the emerging world of weblogs and curious how I might participate in its conversations, I downloaded a copy of Movable Type and started tinkering. I had some time on my hands, because back then I was waiting for my bar exam results and looking for full-time work.

I've put the weblog down and picked it up again from time to time, but I have yet to find a consistent voice. Greg asked me where I think I'm going with this weblog, and I had to say I had no idea. Sometimes something draws my attention and I write, but far more ideas fall through the cracks than actually find their way onto this page.

I've been writing more often recently in yet another effort to find a voice for this space. But I find myself encumbered by a peculiar kind of writer's block, one that I mentioned to Greg. Not only do I have the hesitation that comes from being a relatively quiet, private person, but I feel constrained by my professional role as an attorney (and a relatively young one at that). I have to admit that to some extent I brought that on myself by adopting an analytical tone early on. The "about" column on the right even identifies me as a lawyer. I'm proud of the profession, of course, but it's not the defining feature of my personality — in fact, it's not a personality trait at all, though it can shape them.

I commented to Greg that I've got the impression that a lot of lawyers in the early stages of their careers seem to prefer to write anonymously. I was going to elaborate on this topic here until I realized I wrote about it a year ago, here and here.

I still tend toward caution, and that caution (overcaution?) tends most often to express itself in silence. Some of the webloggers I admire most are those who, like Ernest Svenson, manage compelling forays into the personal alongside posts about the law, or politics, or music, or whatever else may interest the writer. Another favorite blog of mine is Scheherazade Fowler's, which chronicles, among other things, a journey that took her away from the law to something very different.

I don't know if I have the extraversion and sense of personal comfort to produce quite that kind of writing for a public audience. Still, I'm going to try to write here a little more often to see what develops this time around, and I'm going to try to shake some of the stiffness out of the style.

John Gruber translates Adobe's FAQ about its acquisition of Macromedia into plain English.

Here's an excerpt of one of my favorites:

Do you anticipate a reduction in force as a result of this transaction?

When two successful growing companies join together, the result is a combined organization that creates new and exciting opportunities. The combination will lead to powerful new areas of innovation, new products and solutions, and an acceleration of our respective growth agendas. At the same time, there will be some duplication of employee functions between the two companies, and upon the close of the transaction, we anticipate some level of reduction in force. While we anticipate the integration team will identify opportunities for cost savings, the primary motivation for this acquisition is to continue to expand and grow our businesses into new markets.

Yes.

Have a look at the whole thing. I was amazed how much marketing bulltwacky Adobe's FAQ contained.

While a bunch of smart people were attending the LexThink! gathering in Chicago recently, the Anonymous Lawyer must have been attending whatever the antithesis of LexThink! is. Here are his sentiments.

Cross-reference: Jeremy Blachman, The Attorney-Client Relationship (for those who don't know, Jeremy is known as, among other things, the creator and author of a fictional weblog called "Anonymous Lawyer." And he attended the real LexThink! gathering.)

Also: Douglas Sorocco (on rethink(ip)), Is your attorney working for you or against you?; Meaningful and Nonbillable Conversations with Clients, and — heck, just go over to rethink(ip) and read everything there. It's not just about intellectual property law. Not by a long shot.

Ernie the Attorney: "I think that many of the lawyer bloggers who refer to each other in posts are essentially acting like an 'Internet Bar Association.'"

Works for me. And like Ernie, I'm enjoying watching three leading members of the "patent section" of the Internet Bar over at rethink(ip). I don't work in the area of patent law, but their astute observations about patent practice tend to translate well to other practice areas.

Ernie the Attorney muses today about his motives for posting about personal topics. Blogger, know thyself; Reader, find something better to do. He concludes that he doesn't necessarily have any explanations for many of his decisions about which stories to tell, particularly in those posts that he calls "self-referential."

I have a blog and you don’t. Let’s say we meet. You tell me you’ve read my blog, and you ask me about one of my ‘personal observation’ posts. At some point I come to understand that you have read a lot of my blog, obviously trying to get a sense of who I am. Lately, this has happened a lot. …

… Every once in a while, in one of these strange encounters, the person will hesitantly tell me that they have a question. Invariably what they will focus on is how I often speak freely about certain personal observations. They just don't quite understand that. Aren't I afraid of the consequences? How can I be so open? That's what intrigues them.

Ernie discusses a theory that some of his decisions about what to write might be based on unconscious mental processes that he isn't really in a position to articulate. He concludes with this advice for the reader:

… So feel free to comb through my weblog for clues and feel free to form judgments about my personality. Just don't ask me to explain why I am the way I am or why I talk about certain things. I really don't have a good answer. I'm flattered that you ask the question, but I politely suggest that there are more important questions for you to be asking. Aim your curiousity at something truly important, which is not certainly not me and my motivations.

If I were you I'd just go outside and enjoy the nice day. Or, even if it's not a nice day, then surely there's something more interesting to do than read my self-referential blog posts. Don't you think?

I don't spend time wondering why Ernie or other "self-referential" bloggers write what they do, but I am often glad that they choose to tell some personal stories. Sherry Fowler, for example, is one of my favorite bloggers because of how well she tells her stories. Her blog isn't even in the "Legal" category in my RSS reader, because her blog doesn't try to be about law. (Her blog focusing on professional life, however, is in the "Legal" category.)

When we first meet in online or physical space, we tend to label each other; in the United States, we most commonly choose labels associated with what we do for work. "Attorney" or "Lawyer," for example. But of course such labels tell us very little about the person so labeled. They're shorthand for general traits — stereotypes, at that, which may or may not express themselves in a particular individual.

Those "self-referential" posts with personal stories often tell me something about someone who would otherwise be just a name with a few labels attached. They put flesh on a skeleton, and a face on the flesh. When they appear in lawyer-blogs, they give me a sense of humanity in a profession that often tends to be bound up in formalities. They create people I respect rather than websites that I read. They often make me wish that I could write more personal posts.

But the "self-referential" posts I appreciate the most show me something about myself as well. Ernie, Sherry, and others have done just that on numerous occasions, and I thank them all.

Many people have linked to the Electronic Frontier Foundation's article,. Several people have shared their personal experiences about (not) blogging anonymously, like Scheherazade Fowler. Her blog is among my very favorites because of how she so artfully writes about her life and its many dimensions apart from the law.

Back in February, I posted an entry about why many lawyers might choose to blog anonymously.

The title of the EFF article is a little overly optimistic, because half of the article is dedicated to identifying topics that one might want to avoid. But I think that it provides some useful tools that one can combine as needed to reduce the risk of a clash with one's employer. Which combination is "right" will depend on the circumstances. They're not the only tools out there, but they're some of the most significant ones.

Jeff Lewis has redesigned his SoCalLawBlog, and it looks good. He's set the page to a fixed width so that the center column doesn't scale relative to the browser windows, he's adjusted the color scheme, and he has a nifty new image in the upper left corner. Setting a fixed width keeps advertisements encroaching on the body text or distracting from it, without diminishing the ads in a way that would be unfair to his sponsors.

I commented on the old design a few weeks back in linking to one of the SoCalLawBlog posts. I think I phrased my comment too harshly, and I want to apologize to him for that. Jeff revealed in the comments that he had a sense of humor about the ads, but I wish I'd chosen a more constructive way of expressing my irritation with what I took to be blog ads that overwhelmed the content. Thanks for letting me know about the updates, Jeff, and I'm sorry I wasn't more helpful from the start.

We see all the time those blog posts where people apologize for not having written lately. I know I've done it. Frank Pape [here] decided to construct Google and Technorati searches to find out who hasn't been blogging lately.

A VC (that's the name of the blog) observes, "Apple survived the WinTel dominance in the PC business by becoming a "we" company. … But in the past couple months, Apple has made some very "they" company decisions." He outlines a few.

A commenter on that post responds,

As a long time Apple developer back in the early 80's, the common comment has always been, "Love the computers, hate the company" when it came to Apple. You might think that Apple switched from a "we" company to a "they" company, but those close to the company have always thought of it as a "they" company. … Apple's continued pursuit of the bloggers is a direct reflection of how Apple (Jobs) ISN'T in tune with their user base out in the real world. Apple has never understood the passion of it's users, though some employees over time have. (ie. Guy Kawasaki)

There's more. Have a look.

Meanwhile, Robert Scoble loathes the notion that Microsoft is a "they" company. His perception from inside the company is that they're not.

I've long felt that Microsoft was focused on itself and took an exploitative attitude toward its customers. But recently, I've encountered a remarkable counteragent to that perception in the form of the many bloggers at Microsoft. They help humanize this consumer's perception of an apparently monolithic corporation that wields great power over a great many consumers. I'm still skeptical of much of Microsoft's management and some of its tactics (I mean, come on — patenting storing word processor files in XML?), but it still helps to hear from developers about their genuine enthusiasm for putting tools in the hands of other developers and consumers.

The Mercury News is running an editorial about (Cal.) Superior Court Judge James Kleinberg's ruling in Apple v. Does just over a week ago. [Via Donna Wentworth.]

Let's be careful with the extent to which we call this case a "precedent." It has no authoritative precedential force within the law, because it comes from a trial court. But there is a possibility that an important appellate court could agree with the reasoning, establishing more authoritative precedent. Or, other trial courts could simply find the reasoning persuasive in the absence of other more binding authority.

When should website operators who post information they receive about business activities be able to claim either:

• A privilege not to disclose the identity of their sources?
• An immunity from civil suit or criminal penalties for disclosing information?

I'll call the first of these a "journalistic privilege" and the second "journalistic immunity." In this post I'm just going to talk about privilege, but it helps to remember that we are talking about at least two kinds of protections. Still a different kind of privilege protects publishers from prior restraint in most cases.

Ernest Miller (The Importance Of....) has an idea for an answer to those questions above. It's pretty simple. But it may be too simple, and efforts to refine it tend to lead to some of the more complicated inquiries that I think he'd prefer to leave out of the test.

Mr. Miller argues in this post for a standard that would make it very easy to obtain legal protection for disseminating information one receives from business or government insiders. On Mr. Miller's view, we should not focus on the speaker, the content of the speech, or the medium of communication. See his post for a quite articulate summary of that part of the argument. (Mr. Miller cites Linda Berger, Shielding the Unmedia: Using the Process of Journalism to Protect the Journalist's Privilege in an Infinite Universe of Publication, 39 Hous. L.R. 1371 (2003)). Mr. Miller and Prof. Berger argue for approaches where what counts is whether the speaker is "engaged in the process of journalism."

Miller and Berger argue for different standards. Prof. Berger provides a pragmatic (but still a bit fuzzy) outline of what sorts of behaviors and attributes characterize the "journalistic processes" that law should protect. Mr. Miller argues that Prof. Berger's standard should really be stripped down to just two or three elements. I'm going to focus on his argument below and leave Prof. Berger's aside, mainly because I haven't had time yet to give her article the closer reading it deserves.

Prof. Berger's article also provides a very handy historical summary of journalistic privilege (or its absence) under federal and state law. Note that she and Mr. Miller are arguing for reformulations of privilege law — that's really another way of saying "new law". I'm not "dissing" either's argument, which may be sound and valid from the perspectives of First Amendment values — specifically, the free flow of information — and jurisprudential efficacy. I'm just saying their arguments are not what the courts have been doing so far.

So how should we tell who is "engaged in the process of journalism?" Mr. Miller writes, "The 'press' and journalism boils down to two things: gather information and publish it publicly." So, he asks, "Isn't the only process we need to know about is that information was gathered and then it was publicly published (or there was intent to publicly publish)?"

If I'm reading Mr. Miller's post right, the elements of the journalistic privilege would go like this:

If

• Insider communicates information to Outsider; and
• Outsider
  • publicly publishes the information or
  • intends to publish it publicly;

• Outsider cannot be compelled by law to identify Insider.

It looks simple, but there are still some tricky parts.

For example, there's still some question what it would mean to "publish" information. Assume that any widely disseminated medium counts as publishing — including publicly accessible websites. That does away with the blogger/journalist issue. But the bigger problem word in this test is "publicly." Is it "publicly publishing" if Outsider only shares the secret information with his or her family? What if Outsider puts together a "publication" that consists of a for-profit newsletter distributed only to a trade group? Or only to certain competitors of Insider's employer? When does the further dissemination of the information become a "public" publishing?

Mr. Miller's test also has a subjective element, in that Outsider's subjective intent to publish would qualify Outsider for the privilege. Suppose we have an Outsider who has engaged in some of the more questionable practices described two paragraphs above. When Outsider gets a subpoena (because yet someone else leaked Outsider's newsletters or a copy of Outsider's private website), is it enough for Outsider to say, "I planned to release that information to the public at large next week"?

The hunt for a description of "public" smells to me like a search for the kinds of journalistic processes that we consider to be more for the benefit of the public at large than for select groups. If we go down that path, it dredges up the questions of disclosure, journalist track-records, and other scrutiny of Outsider that Mr. Miller's proposed test aimed to avoid in the first place.

Even if these questions show up difficulties in Mr. Miller's proposed test, he could quite aptly point out that it's often better to have one hard-to-apply word or element in a law than to have two, five, or ten, especially when that law is designed to protect the flow of information and public discourse. Maybe that's true, or maybe this topic is trickier than it looks so that we may have to put up with more complexity. Based on what I've read so far, I suspect Prof. Berger's approach admits of more of that complexity. On the other hand, her approach may be more difficult to apply, and she may overly favor "established media" outlets.

All that, and we haven't even reached the core policy issues, though I'm trying to illustrate some of them with the hypothetical questions I've asked in the last few paragraphs. You can find more detailed discussions elsewhere (Prof. Berger's article might be a good place to start).

Notice that Insider still gets no special protection. That's the same as in current law. If Insider's employer can identify Insider through other means, Insider is still in trouble unless some kind of "whistleblowing" law applies. Regardless of how we treat the journalist, I don't think the rules that apply to Insider should change. Except in extreme circumstances, no business should be compelled to employ someone who leaks private business information.

If you're interested in the topic and you haven't read Mr. Miller's post already, have a look at it and think about it for a while. If you're really interested in the legal background, also look at Prof. Berger's article.

Peter Burrows, BusinessWeek's Computer department editor, has a column describing why Apple's choice to sue fan-driven websites is a bad business call that "could tarnish the Apple brand." ("Memo to Apple: Lay Off Your Fans")

There's a certain irony to this. Remember the Orwell-inspired ad that ran during the 1984 Super Bowl, that one that depicted Apple as the free-thinking company breaking the Big Brother dogma of the computer industry? Through conscious marketing efforts, Apple has long stood for innovation and creativity, and has been embraced creative sorts like artists and writers -- not people who usually care for big corporations pursuing lawsuits against 19-year-olds. That may vastly oversimplify the nuanced legal issues Apple's lawyers are trying to address, but it could well be the overriding impression that results.

A large QuickTime .mov file of the 1984 advertisement is available here. There are smaller copies floating out around the internet.

By now, everyone who reads law and technology related weblogs is aware that a California court has permitted Apple Computer, Inc. to issue subpoenas to weblog author-editors and ISPs. Apple aims to discover who leaked information about an Apple project called "Asteroid." The court order rejecting the webloggers' motion to quash the subpoenas is here [via EFF].

To comply with the subpoenas and order, the webloggers will have to disclose the sources underlying the articles they published. The webloggers are not currently defendants in the lawsuit — the defendants are the people from whom the webloggers received the information in the first place. Apple might, under the circumstances, be able to join the webloggers as defendants for disseminating trade secret information. But it currently seems that Apple's primary goal is to rout out its employees who leaked the information, firing them and maybe (or maybe not) maintaining its suit against them.

Here's a very non-exclusive list of what some people have had to say about this case in the legal and technical blogosphere since the court released its ruling:

• Denise Howell (Bag and Baggage): Links and information.
• SoCal Law Blog: Brief comment. (I would not normally endorse a weblog so drowned in advertisements that one can scarcely find the text. –tph)
• JMoore (JurisPundit): JMoore was hoping for some analysis on the role of blogger-as-journalist, an issue the judge sidestepped by holding that no journalistic privilege at all applied in the case.
• News release, Electronic Frontier Foundation. The EFF provided legal support to the webloggers.
• Donna Wentworth (Copyfight): Donna criticizes the judge's determination that no First Amendment journalistic privilege applied in the case, and links to—
• An exchange [one] [two] between Susan Crawford and Ernest Miller on the proper scope of First Amendment journalistic privilege.
• Dan Gillmor worries that if this ruling is upheld on appeal (assuming there's an appeal), business reporting will become too dangerous for reporters.
• The Mercury News's Mike Langberg asks Apple to reconsider its legal approach toward enthusiasts because it communicates arrogance and attacks people who love Apple and its products.

It seems to me that the main thing that really bothers Apple enthusiasts about these subpoenas (as well as some other claims Apple has been pursuing against enthusiasts who spread leaked information) is that they convey the impression that Apple wants to punish webloggers who are enthusiastic about its products. This impression relates to Langberg's argument in his editorial. As I've followed the news and commentary, I've been wondering about Apple's business decision to proceed with these lawsuits more than the nuances of the legal doctrines that apply (though the latter are important). I have to admit that my first impression of Apple's lawsuits was that they seemed eager to stifle the very kinds of enthusiasts who provide valuable word-of-mouth marketing for their products — the kind of marketing that you just can't buy.

Apple hasn't even tried to justify its strategy to the public, and if it tried to do so using one of those "we just have to protect our intellectual property in all cases" arguments, I'd be sorely disappointed. Still, I've tried to imagine why Apple might want to pursue these cases knowing that there is some risk that it might alienate some enthusiasts. What might the people in charge of this policy at Apple be thinking? My first impression is that Apple likes word-of-mouth and media hype for its products, but it really wants to be able to control that hype itself. Is that just the symptom of obsession for control, or can one justify the desire for control?

In some circumstances, Apple might want to conceal new product plans because it wants the maximum lead time in the market before competitors could develop a competing product. But this case doesn't look to me like a situation involving intense competition in a particular market space. The secret information at issue in Apple v. Does relates to an improvement to theGarageBand music sequencing software in the iLife software suite.

Maybe there was a major concern about competitive advantage for Apple in this case — I don't pretend to know all about the market for music sequencing software. But it looks to me like Apple is trying to enforce a blanket policy regardless of whether this particular leak is comparatively a "big deal."

Concerns about employee discipline provide one potential justification for pursuing "leakers" even if the leak didn't cause severe damage. Assuming that Apple has a blanket policy of secrecy — and it has had just such a policy since the 1970s — it probably wants to be very sure that it employs only people who can honor that policy, and it probably wants to fire those who don't honor it. It's probably wrong to label such firings "retaliation," since Apple has reasons other than spite for discharging people who break their agreements. For example, distributing certain information about forthcoming Apple products may in fact cause Apple harm if it tips off competitors. Also, leaking information about the company's projects may hurt morale, given that Apple has many employees who do act very cautiously to protect information about its development efforts. They probably don't want to feel that their own co-workers are disseminating the very information that they are trying to protect. I don't know how much of a problem that is because I don't know anyone who works at Apple.

I think Apple should have some right — probably a right with a lot of enforcement leverage — to demand confidentiality from its employees. I also think it should be able to use legal tools to do so. I'm just not sure where the line should be drawn as a policy matter. Maybe those tools should be limited, or maybe they should have a broad reach except in those cases that would classify as "whistleblowing."

I've seen a lot of discussion about whether the webloggers affected by subpoenas in Apple v. Does should be treated as journalists. Most people assumed the court's ruling would focus on that question. But the court concluded that regardless of webloggers' status, disclosures by Apple's employees about Apple's forthcoming products didn't implicate a journalistic First Amendment privilege at all.

That conclusion raises the question, When do communications to a journalist (however that word may be defined) about a company's business or research activities obtain a privilege such the journalist cannot be compelled to identify the source of the information? That question is probably more important than the journalist/weblogger question, and it's the core of a conversation that's started over the weekend (see, e.g., Crawford and Miller), and it's an important one.

I'm not sure where I stand on that issue, and if I have enough time this week I'll play around in this space with some possible arguments related to that question. I don't want a policy under which companies designate everything under the sun as "trade secrets" to prevent dissemination, but I also don't want a policy under which employees can feel free to share whatever company secrets they want as long as they're talking to a journalist.

In the meantime, I'll look forward to reading more arguments about the legal standards that apply and about Apple's policy in particular. I'll be especially curious to read any arguments people might test out in support of Apple's policy, since I didn't exactly work philosophical or rhetorical wonders in its favor earlier in this post. Before we can really evaluate the legal standards that apply, I think we need to try to understand why Apple might want to draw close the cloak of secrecy. If we don't give serious attention to that viewpoint, the perspective of the business that generates the information that it then seeks to protect, our discussion of the legal standards will be under-informed and imbalanced.

Tim Bray reports that he visited Technorati on Friday and advised them to shut down their free service. Tim says, "I'm surprised this is controversial," explaining that "the notion that small companies with poor cash-flow should give things away is so 1999."

I'd be sad to see Technorati's free service go away, because I'm just beginning to understand how it works and how it can be used to Do Cool Stuff. But maybe that's the signal that they should start charging — people are figuring out how to make it Do Cool Stuff, which means there's probably some kind of a market there. Tim also points out that a direct-payment system may be more emotionally acceptable than an advertising based system; he'd prefer it that way, and lots of other people feel squeamish about the notion of advertising in RSS-derived services.

It would be nice to have something like Technorati available perpetually for free, and I'd be sad to see it go the way of a pay service. But I'd be sadder to see it coated with advertisements or, worse yet, gone. I know better than to think that we're going to get something for nothing, and the Technorati service has to pay for itself somehow.

After my long post earlier this evening about weblogs and law firms, I would be remiss if I didn't note Dennis Kennedy's post By Request Tuesday – Is There Still Room for Small Firm or Solo Lawyer Blogs?

His answer to that question — followed by a set of great observations — is, "Are you serious? There's more room than ever and better prospects than ever." And he's right on. I think these two points he made, about the individual blog that bears its author's personal voice, are especially important:

4. Let's face it, big law firms are looking at blogging for marketing purposes. The long-time individual practicing lawyer bloggers (and other individual legal bloggers) are blogging because they have passion for their topics and blogging itself. Blogging has become part of who they are and they understand their audiences' interests and needs. Marketing might be part of why they are blogging, but it's not the only reason – not by a long shot.

5. Personality is a big part of any successful blog. Personality is hard to develop in any group blog. In an official big law firm blog – fuggettaboutit.

Dennis and I had a good conversation about this point that parallelled my post on anonymous weblogging. Since then, I've been trying to let my personal voice find a little more expression here.

What will weblogs mean for law firms? It's too early to tell anything for sure, but law firms face a slightly different business reality than most other businesses, and that will affect how law-firm and other legal weblogs develop. There'll be no legal analogue to the Scobleizer. But both firm-sponsored corporate blogs and privately-maintained individual lawyer weblogs could have great positive effects for law firms. Firm-sponsored weblogs showcase firm expertise and keep clients up-to-date on new developments in the law. Meanwhile, independent weblogs humanize the practice of law while demonstrating individuals' talents and participating in worthwhile conversations.

Microsoft may be one of the greatest implementers and beneficiaries of weblogs in business these days, between its MSDN blogs and Robert Scoble. As weblogs begin flourishing in a business context, I wonder more and more what impact they will have on the business of law practice.

Law firms have a different kind of customer relationship and a different kind of culture from what you would find at Microsoft. That reminds me of stories from lawyers who have worked for Microsoft as outside counsel about how they love visiting the Microsoft campus because of its different company culture, but those aren't my stories to tell. Can you imagine a law firm where an associate publicly criticized a controversial product or service the firm had once provided? (Scoble: "SmartTags in IE were evil".) How about where an associate criticizes an unnamed department for making a bad internet marketing decision? (Scoble: "You should be fired if you do a marketing site without an RSS feed.")

I'm sure Scoble is making more than a few people at Microsoft anxious, but the awareness that these kinds of conversations might be happening at Microsoft plants in me a seed of hope for a company I haven't trusted for ages. (Just a seed, folks. I'm still planning to switch, although Apple's recently aggressive legal strategies have been bothering me.) I hope they'll realize there's an opportunity there.

One reason you won't see this sort of blogging at a law firm is that most of what lawyers do involves the confidences of their clients. I certainly can't say anything that would reveal my client's confidences. If I'm working on litigation, I may not want to disclose aspects of my litigation strategy until a certain time in the case. Most anything a lawyer could say about a case would come across as an attempt to try the case to the general public rather than a jury or the judge — just an attempt "to try the case in the [new] media." In the legal industry, the customer depends on confidential advice tailored to the client's specific situation. This conversation between the service provider and the customer cannot take place in an open forum.

A lawyer-weblogger would also have to take extreme care in criticizing any of the firm's prior work. When it comes down to the strategic decisions a law firm makes, no one can say, "I think we should have argued that losing case differently to the judge," because that's tantamount to saying, "Our client should consider suing us." Even if the perhaps-faulty strategic decision doesn't rise to the level of malpractice (and many bad decisions don't), that's a door you just don't want to open.

I suppose one could criticize the firm's marketing approach, or any of the very few other aspects of the firm that don't directly involve client service, but you had better not criticize your firm's methods of delivering its services. After all, as Andy Havens pointed out last week, your clients don't need you, and they can probably get comparable services from another firm. On the other hand, open criticism of old billing methods might fit well into an effort to show how clients get more better service under a new approach.

I also just haven't met that many law firms where people feel like saying, "This is a great place to work and we do wonderful things for our clients!" Microsoft gets that benefit from its employees' blogs, but most law firms won't. Perhaps that betrays something else wrong with law practice, but I'm not going to go there right now. This topic is more than enough to work on already. I'll just say that if I did find lawyers who were that enthusiastic about their firm, they'd get my attention very quickly.

So large law firms probably won't have the kinds of weblogs where the rank-and-file employees gloat about their amazing employer or where they openly criticize current or past company practices. The weblogs that law firms sponsor will probably be those that are designed to showcase a firm's talent in a particular area, demonstrate that the firm is on top of the latest developments in that field, and signal clients about developments in the law on which clients might want consultation. Off the top of my head, I can think of several large-firm weblogs in this vein that are already off and running: the Holland & Hart Health Care Law Blog, the Davis Wright Tremaine Telecom Law Blog, and Preston Gates Ellis's Electronic Discovery Law. There are more, and I expect they will serve as helpful marketing tools.

I've been focusing on firm-sponsored weblogs, especially in the large-firm world. But the weblogs that attorneys independently keep can also bring incidental benefits to their firms. In their independently-maintained weblogs, writers often participate in cross-blog conversations that thus far tend to exclude the staid corporate weblogs. I think that, as long as attorneys show a modicum of discretion in talking about their work, their personal weblogs can reflect positively on firms large and small. Consider: If you or a client had a civil legal problem arise in Louisiana, whom would you call first? I'd call Ernest Svenson without thinking twice. A case in California? Denise Howell would come to mind right away. And there are many more people whom I'd think of contacting first because of their weblogs, people who I'd trust to handle the matter well or to refer it either within their firms or to someone else qualified. Many webloggers cast a positive light on their partners and employers by their positive presence in the blogosphere.

What's more, I like to know that the lawyers I work with are real human beings with real lives and interests outside the law. The legal weblogs I read most avidly talk about more than law practice. (I could stand to improve my own writing in that respect.) They include glimpses of the author above and beyond that person's role as a practitioner. I deeply appreciate those glimpses, and they tend to promote my trust in the lawyer's integrity and wisdom. I trust the judgment of the well-rounded person more than I trust the person who never leaves the office, and that's also the kind of person I'd rather spend time with.

Now of course, a firm that has outspoken, lousy people for lawyers probably won't stand to gain from its lawyers' blogs, but I'll shed no tears for them. If a firm has to worry about that, it has more serious problems to think about than anything related to blogging.

I'm looking forward to seeing what kind of an imprint blogging makes on this profession. It's an exciting time, and I'm glad to be a small part of it.

Dennis Kennedy has another good post on weblogging. In this one he offers observations about weblogging from the perspective of one who reads a large volume of weblog content using newsreader software.

Dennis continues to stress the importance of offering full-text RSS feeds so that readers don't have to click through to see the whole post. One of his earlier posts made me decide to do just that. From the reader's point of view, I'm finding full-text feeds awfully important myself, because I also read a lot of feeds (though nowhere near the 600+ that Dennis describes). I had to edit my three MovableType feed templates to make the change properly on my own weblog, but it was relatively easy with a little help from the Template Tags section of the manual.

There are a lot of weblogs, legal and otherwise, whose authors still haven't gone to full-text feeds. Why not? Most of them don't have advertising for which they need viewers. Is it just because many weblogs have excerpt feeds on by default? That can be changed easily enough. If you want tips on editing preferences and templates in Movable Type, let me know and I'll be glad to share my templates and MT settings.

If you're worried that some people might want only an excerpt feed of your weblog, you might take the approach Denise Howell used. Her weblog offers both full-text and excerpt feeds. I haven't tried to set that up in MovableType, but one could do it by making duplicate feed templates and tweaking the tags.

Lots of people are welcoming the new weblog of Reid Trautz, a practice management advisor for the D.C. Bar. He writes that he hopes "to help my fellow lawyers find and implement solutions to improve the business side of the legal profession. Because, quite frankly, that's what I enjoy."

I'll be looking forward to reading it — and it's very clear that I'm not alone! Welcome, Reid!

(First spotted through Jim Calloway's Law Practice Tips Blog.)

Dennis Kennedy is skeptical about anonymous weblogging. In his guidelines to would be bloggers, he includes the following bit of advice:

6. Think Carefully About This Anonymous Thing. I really struggle with the idea of anonymous legal blogs, but I'm an old-school kind of guy. On the one hand, I am very disturbed by the current legal culture in which associates in law firms live in such a state of terror that they will not blog unless they are anonymous. On the other hand, I don't understand how blogging anonymously helps you. Of course, look what I named my blog.

On one hand, I can see his point, especially since he is coming from the perspective of a seasoned lawyer who uses his weblog primarily to comment on what he sees as the future of law practice. But not every weblog author shares that perspective, and I can understand their point of view as well.

I've gone from writing anonymously, to publicly, back to anonymously, and back to public again. I recently gave up on anonymity simply because publicity in early 2003 means that Googling my name leads people here anyway. The tph-lex.com domain is on my business cards, and I use it for my business-related e-mail. It's not hard to figure out who this is.

Many lawyers avoid thinking of their weblogs as marketing devices. They're looking for an outlet that they can use to communicate with other lawyers and non-lawyers about whatever is on their minds. (Some may want to take the potentially dangerous step of writing about work.)

If these authors write under their own names, they will feel the pressure of marketing standards. Firms generally want to present a unified image, a "brand," if you will. They want clients to see a particular professional image that may clash with the writer's desire to write about his or her personal life. (This facially good marketing idea can have poor side effects, but that will have to wait for another post.) They worry about losing their jobs or not getting jobs that they want.

The public weblogger who is looking for work experiences the same constraints. The job-seeker or client-seeker must hone, or at least be attentive to, a public image that may exclude some of the very topics the writer feels a need to express. This is probably especially true among many of the law school webloggers. They're acculturated and trained to be very concerned about the image that they present to potential employers, but they're also going through a trying experience that prompts many people to seek expressive outlets.

I often feel like my entries are too "stuffy," so I always laugh at myself a bit when Evan Schaeffer asks the question, "Why are lawyers so stuffy?" In my case, it's for the very kind of reason I discussed above — I feel a need to be very cautious because I don't want to say anything to dissuade employers or clients. I'm probably overcautious, and there are probably ways to be careful without being "stuffy."

What do you think?

See also: Robert Scoble, A little more on Mark Jen's story.

Shelley Powers came up with an interesting idea to employ Technorati tags as a sort of replacement for Trackback.

I have to confess I'm a little behind on the tagging phenomenon; I can sense that it seems to have a lot of potential for many uses, but I haven't thoroughly thought it through. (And how's that for a lot of th-s and gh-s?)

I'll participate and give this little proof-of-concept experiment a try here. Shelley assigns this topic a tagback-tag of "bbintroducingtagback". I guess I have two initial observations. The first is that if people spread the same discussion topic out over a bunch of different tags, it would be difficult to keep track of the conversation. But that was somewhat beyond the scope of Trackback anyway, and this might work better. The second is that this system could impose costs on Technorati, but it could also just make Technorati even more useful. Shelley points out that Technorati can tune the system to avoid spam:

Since Technorati scarfs up delicious tags and flickr tags, all of these items will eventually appear in my Tagback page, along with weblog posts where people have linked to the tag directly in the post. And if Technorati excludes googlebots and other bots in the tags pages, there is not impetus for spammers to spam this page. As long as Technorati excludes pagerank from these pages. Hint. Hint.

Ann Althouse has this interesting this post about the article "Our Godless Constitution," in The Nation. She shows how the article incorporates shoddy scholarship and, more importantly, explains how the article's inflammatory approach will utterly fail to explain the importance of separation of church and state to religious people. There are many arguments, including those adopted by the founders of the United States, that would demonstrate the social and religious importance of the separation of church and state.

Andrew Raff's IPTAblog has an article following up on the controversy that blew up last month when Martin Schwimmer asked Bloglines to remove his Trademark Blog from the Bloglines service. He frames and summarizes the issues well, I think.

My jaw dropped a bit, though, at the Sieblogs site that Andrew linked to. Sieblogs aggregates content from what must be a collection of hundreds of weblogs and mass media sources. It then displays that content by category. There's nothing on the main page or entry page that indicates the original content author. That's a violation all of the Creative Commons attribution licenses, and the sheer copying and re-display of the content is a violation of general copyright law, although it is something many weblog authors would permit if asked. Even though there are no advertisements yet, the utter failure to credit the author and source weblog really surprised me. They at least link to the original article.

JDBliss posted this interview with Ernest Svenson, a/k/a Ernie the Attorney.

Ernie the Attorney's weblog was one of the first that I began reading back in 2002, and I've long admired his efforts to encourage improvement in law practice through better use of technology and other practices. He's looking forward in a business that spends most of its energy looking backward.

Sweet. I don't pay much for hosting and don't have much space, and I won't get much traffic, either. So, using PHP and dynamic page generation in Movable Type probably won't cause too much trouble. I was trying to limit the forms of archiving MT would use so that I wouldn't have to worry about using up my scarce disk space on the server. Now I don't have to worry about that as much.

I've tried to modify the page to be a little more anonymous, but thanks to the Google cache and the fact that I wrote under my own name for half a year, I don't think that this will become anonymous enough for me to post the ongoing Tales of the Office Where No One Smiles. Ah well. It's probably not a great loss for the world.

Rory Perry returns after a brief hiatus and says some things that echo some feelings I've had lately:

Whew. No posts to this weblog for nearly two weeks, due to [lots of things going on!] and, I'm afraid, more than a touch of the disaggregating funk: an irritation with newsreaders and weblogs, combined with a sense of unease at all the fertile thoughts and material therein that I cannot fully absorb, or respond to, or even remember.

Ah, I have felt this! The wonders of XML syndication and the efforts of so many make it possible for us to bring lots of ideas and information to our computers and promptly drown ourselves in it. You'll never hear me say that being informed and reflective are bad things in themselves, but -- to use economic terms -- there's an opportunity cost built into the time we spend trying to process all of this information, let alone comment on it or add to it. There are other things we could do with that time, and sometimes those other things will be more worthwhile.

And that's a good thing.

Ted Barlow describes the number one reason -- well, okay, it's in the top three at least -- why I avoid talking about the war online.

I've long told myself that I wouldn't be caught gushing online about how great RSS feeds are, but like so many others in the blogosphere, I've become rather RSS-dependent.

I have 108 feeds subscribed in Syndirella right now. I tried out Syndirella on a whim after seeing it mentioned on Jerry Lawson's net.law.blog. I'd been using Aggie and had tried Amphetadesk, but I was getting tired of viewing the results in the form of a webpage, and Aggie's RSS parser was a tad sensitive. After two days, Syndirella is working rather well. People who want to try it should follow the advice here, and grab the programmer's "blog" version rather than the "webpage" version. He puts links to the most recent testing versions in his blog rather than on the webpage.

The only problem I've run into now is that a few blog*spot RSS feeds don't seem to be updating the way they should, and that's definitely not an aggregator problem. Perhaps this results from transitions following on the Google purchase of Pyra Labs. In any event, the How Appealing RSS file hasn't been updated since early Thursday. (The site most certainly has!) For a legal blogreader, that's the worst site to be out of touch with. Here's hoping that's patched up soon. Now I'll actually have to remember to check manually! What a disgrace!

LiveJournal has been under a Distributed Denial of Service attack since yesterday afternoon. The latest is at status.livejournal.com, which presently reads:

At 3:57 am EST on Thursday, February 20th, Admin lisa writes :

LiveJournal is currently under a Distributed Denial of Service attack, and has been since about 5:30pm PST (1:30 AM GMT) tonight. We have been working with our upstream providers (including several major backbones) to filter traffic as quickly and effectively as possible.

Due to the fact that a DDOS attack involves potentially tens of thousands of hosts all working together against a single target (in this case, us), it is extremely difficult to find one group of IP addresses to block to prevent the attack from affecting our services any further. Our upstream providers are currently filtering somewhere around 1/4 of the IPs on the internet from reaching LiveJournal. Unfortunately, these filters also block legitimate traffic from some users. When the attack has subsided we will remove the filters.

We will continue to monitor and block hosts as we gather more information regarding this attack. We seriously apologize for the inconvenience, and hope you understand we are doing everything in our power to get the site back functioning as normal.

LiveJournal offers some nice, easy-to-use tools. Unfortunately, it presents a big target as well. It's still a little beyond me why someone would select LiveJournal in particular as a DDOS target. I know it's unlikely, but I hope they figure out who's responsible for the attack.

At least one internet filtering system has decided that Howard Bashman's unparalleled appellate law weblog, "How Appealing," is pornography. Howard jokes, "Look on the bright side, though: If my Web log is classified as 'pornography,' perhaps some actual pornography has been classified as a Web log devoted to appell