Adjunct Law Prof Blog

Do Employer's Need A Blogging Policy??

I usually do not post law firm newsletter or client information reports because most of the time I find them to simply be a form of advertising. However, I found one such report by Littler Mendelson to be particularly worth a read-though I still consider it a type of lawyer advertising.

Philip L. Gordon and Christopher E. Cobey  in a story entitled   DOOCES WILD: How Employers Can Survive the New Technological Poker Game of Employee Blogging recommends that employers adopt employee blogging policies (you know who drafts such policies and that is where the advertising comes in).

The authors point out that a number of employees have been "dooced" (fired because of the harmful content and public availability of their blog) and employers and employees can benefit by clear employer policies. What should these policies provide? The authors state:

All blogging policies should specify the types of conduct, especially that peculiar to the public nature of blogging, which could result in discipline. Categories of conduct normally addressed in blogging policies include the following:

• Disclaimer of Corporate Responsibility: Bloggers should be instructed to state that the opinions expressed in the blog about work-related matters are their own and have not been reviewed or approved by the employer. In the same vein, bloggers should also be instructed to state that they assume full responsibility and liability for any work-related content contained in the blog. These statements are particularly important when the employer otherwise encourages blogging by its employees.
• Confidential Company Information: Bloggers are required to comply with the company's policies protecting its trade secrets and other confidential information and with provisions protecting trade secrets contained in any employment agreement.
• Securities Regulations: Bloggers should not disclose "insider information" and may be required by the employer not to address any company-related activity during certain black out periods required by securities laws and regulations.
• Company Logo/Trademark: The policy should explain when, if at all, the employee-blogger may reproduce the company's identifying marks within the blog.
• Copyrighted Material: The policy should explain the potential civil and criminal penalties of posting in the blog copyrighted material without authorization.
• Be Respectful: The blog should not become a vehicle for personal attacks on the company, its products, its executives, supervisors, coworkers, competitors, or competitors' products.

To avoid having the blogging policy become encyclopedic while ensuring its completeness, the policy should cross-reference related policies, such as the company's policies on the proper use of electronic resources, prohibiting discrimination and harassment, and addressing confidential and insider information.

This article is not dated, but I first saw it on Find Law on July 15, 2008. I am not sure that I would go so far as recommend that employers "must have" blogging policies, but I suppose it could not hurt to have one. Query whether such policies are a mandatory subject of collective bargaining for unionized employees and query whether such policies would cut down employer exposure in wrongful discharge type suits. Some law review commentary may well be worth exploring these issues.

Mitchell H. Rubinstein

Major Decision Re: Blogging- NY Court Orders Newspaper To Disclosure Identity of Anonyomous Blogger

Ottinger v. The Journal News, ___Misc. 3d ___ (Westchester Co. July 8, 2008) is an extremely important case of first impression in New York. The plaintiff, a former Dean of Pace Law School, claimed that an anonyomous blogger defamed him on a blog maintained by a newspaper. The problem was that the plaintiff did not know the identity of the blogger. He successfully filed an action for precomplaint disclosure and the newspaper was ordered to disclose the identity of the blogger. As the court reasoned:

There is no question that the First Amendment protects the right of a person to speak anonymously. That protection, however, is no greater than the right of a person to speak when their identity is known. . ."

Judge Bellantoni then turned to the four-step test set forth by the Superior Court of New Jersey, Appellate Division, in Dendrite International v. Doe, 775 A.2d 756 (2001), to guide his inquiry.
In Dendrite, the court held that a plaintiff who wants an Internet service provider to disclose the identity of anonymous posters must first "undertake efforts" to inform the writers that "they are the subject of a subpoena or application for an order of disclosure." A plaintiff must also identify the "exact" alleged defamatory statements and "produce sufficient evidence supporting each element of its cause of action, on a prima facie basis." Finally, a court "must balance the defendant's First Amendment right of anonymous free speech against the strength" of the plaintiff's case.

A July 14, 2008 New York Law Journal article about this case is available here. I am sure that we are going to hear alot more about this case.

Mitchell H. Rubinstein 

AP sets up a toll booth for bloggers citing its stories

AP sets up a toll booth for bloggers citing its stories is an important story for us bloggers from Beta News. It reports that the Associated Press will now charge us bloggers for quoting their stories. As the article states:

The pricing scale for excerpting AP content begins at $12.50 for 5-25 words and goes as high as $100 for 251 words and up. Nonprofit organizations and educational institutions enjoy a discounted rate.

This scale is likely only a temporary solution, as it raises a truckload of questions. For instance: Suppose a news source holds a press conference, and makes a statement to several attendees including an AP correspondent. Does the citation of that quote count as an excerpt of an AP story? What if Reuters cited the same quote? Or worse, what if Reuters cited the quote differently, and a blogger noticed the difference and excerpted both for comparison? If the AP citation turned out to be in error, would the blogger still owe?

This is too bad. The A.P. is a wonderful source for information. Perhaps, if bloggers stop quoting them, they might reverse this policy.

Mitchell H. Rubinstein

 

Who Is Responsible For Blogging Comments??

Professors Sunstein and Volokh had an interesting video debate about who owns comments posted on blogs. That is an important issue and is likely to become more important as the use of blogs continues to increase. There debate can be viewed here.

Professor Leiter, who runs multiple blogs and who discussed this on his Law School Report Report Blog,  offers a simple solution to limit liablity. Limit who could post and pick and choose which comments are  actually posted on your blog.(For example, Brian has rejected a number of my comments in the past). That is exactly the problem, however. With respect to Professor Leiter, if a blog editor moderates what could be posted he or she is making a value judgement that later may be challenged.

One thing blog editors could do would be to include a disclaimer on their blog. I have one on mine which readers of this posting are authorized to copy if they would like. I am frankly stunned that most law professors do not include such disclaimers. I would even go a step further and recommend that Network owners include disclaimers. I have mentioned this to several well known professor bloggers, but no one seems to be listening. Perhaps, the Sunstein/Volokh debate may open up some professor's eyes.

In any event, this is also an excellent issue that is ripe for law review commentary.

Mitchell H. Rubinstein

Bloggers Beware; Associated Press About To Set Fair Use Guidelines

The Associated Press to Set Guidelines for Using Its Articles in Blogs is an important June 16, 2008 N. Y. Times article by Susan Hansell that all bloggers should read. The N.Y. Times reports that the Associated Press sent letters to a blog that quoted 7 A.P. articles that ranged from 39-79 words. The A.P. apparently felt that these quotes interfeared with its copyright. Though the A.P. later said it was going to rethink its position, it is also planning to set fair use guidelines about how much of an article bloggers may quote. As the article states:

On Friday, The A.P. issued a statement defending its action, saying it was going to challenge blog postings containing excerpts of A.P. articles “when we feel the use is more reproduction than reference, or when others are encouraged to cut and paste.” An A.P. spokesman declined Friday to further explain the association’s position.

After that, however, the news association convened a meeting of its executives at which it decided to suspend its efforts to challenge blogs until it creates a more thoughtful standard.

“We don’t want to cast a pall over the blogosphere by being heavy-handed, so we have to figure out a better and more positive way to do this,” Mr. Kennedy said.

Mr. Kennedy said the company was going to meet with representatives of the Media Bloggers Association, a trade group, and others. He said he hopes that these discussions can all occur this week so that guidelines can be released soon.

Still, Mr. Kennedy said that the organization has not withdrawn its request that Drudge Retort remove the seven items. And he said that he still believes that it is more appropriate for blogs to use short summaries of A.P. articles rather than direct quotations, even short ones.

“Cutting and pasting a lot of content into a blog is not what we want to see,” he said. “It is more consistent with the spirit of the Internet to link to content so people can read the whole thing in context.”

Mitchell H. Rubinstein

   

Bloggers Beware Copyright Law Applies To Us Too

IEE Spectrum has a light article reminding us bloggers that copyright law applies to us and the article summarizes the fair use defense as follows:

If you copy anything that is not yours, a potential copyright-infringement problem should raise a red flag. You already know you cannot copy songs, but what about text, pictures, and drawings? Copying these works and just crediting the author will not cut it. Copying only a little of the text matters in a fair-use defense, but that does not mean that copying only one picture or a single drawing from a Web site is fair use, since each picture or drawing is itself copyrighted. That’s not the end of the line, however, since fair use also requires an analysis of several other factors, including…

Why You Take It

Who You Are

What Technology You Use

Other Factors

To determine fair use, the effect on the market for or the value of the copied work are also considered.

Mitchell H. Rubinstein

Hat Tip: Law X.O

Blogger Burn Out

In Web World of 24/7 Stress, Writers Blog Till They Drop is an interesting April 6, 2008 New York TImes article by MATT RICHTEL which literally discusses the fact that some bloggers simply blog too much. They are under tremendous pressure to immediately publish and face intense competition. As a result, several bloggers have literally had heart attacks. As this article states:

Bloggers at some of the bigger sites say most writers earn about $30,000 a year starting out, and some can make as much as $70,000. A tireless few bloggers reach six figures, and some entrepreneurs in the field have built mini-empires on the Web that are generating hundreds of thousands of dollars a month. Others who are trying to turn blogging into a career say they can end up with just $1,000 a month.

Speed can be of the essence. If a blogger is beaten by a millisecond, someone else’s post on the subject will bring in the audience, the links and the bigger share of the ad revenue.

I think the article may by puffing a bit. As I blogger, I fail to see how blogging places more stress on the invididual than a newspaper deadline or a brief deadline. The article makes an interesting read, however.

Mitchell H. Rubinstein

Blogging Tips

The March 20, 2008 New York Times ran an interesting article about blogging entitled So You Want To Be A Blogging Star which included some common sense advice. The articles offers the following advice:

Don’t expect to get rich

Fit blogging into the holes in your schedule

Just post it already!

Keep a regular rhythm

Join the community, such as it is

Plug yourself

Mitchell H. Rubinstein

Hat Tip: Law X.O Blog

First Ever Strike By Bloggers

The AFL-CIO Blog reported on March 8, 2008 about the first ever blogger labor strike.  The bloggers are writers at The Honolulu Advertiser and members of The Newspaper Guild-CWA Local 39117. There strike has purportedly been successful. As the article states:

In what may be the first-ever blog strike, writers at The Honolulu Advertiser, members of The Newspaper Guild-CWA Local 39117, got management to return to the bargaining table by refusing to post online blogs, including the blogs on an especially popular sports site. Many of the writers left messages for readers explaining their absence from blog duty, which is voluntary. Reporters, photographers and artists withheld bylines and credit lines from the newspaper’s print edition.

The strike worked. Coupled with an overwhelming strike vote by the six unions at the paper, the byline/blog strike pushed management to back down from its “last and final” contract offer and agree to new talks, which began last Thursday.

Mitchell H. Rubinstein

The Assimilation of Blogs into the Structure of Legal Literature

Joe Hodnicki over at Law Librarian Blog wrote a wonderful Feb. 5, 2008 posting entitled Some Evidence for the Assimilation of Blogs into the Structure of Legal Literature which documents the increased blog citations in both law reviews and courts. Joe also answers the question why cite to blogs in a side bar which is reproduced below.

Why Cite to Blogs?

There are a number of reasons to cite to blogs. Ones usually identified are factual assertions, crediting/criticizing ideas, and using a blog post as supporting authority but one largely overlooked reason is the role blogs play as informal repositories of downloadable documents.

Joe did an empirical of citations using Lexis/Nexis data base and documented his findings in a blog posting that took up about one page. Before blogs, this type of study would have been the subject of a lengthly law review article that many would not even read. More than anything this fact demonstrates the utility of blogs.

Mitchell H. Rubinstein   

Blogging and Stress

Fellow bloggers may be interested in checking out Some Brand-Name Bloggers Say Stress of Posting Is a Hazard to Their Health which is a Jan. 7, 2008 New York Times story by Dan Fost. In this article, the author discusses the stress blogger Om Malik feels with respect to his blog, GigaOm. The article implies that this bloggers recent heart attack was due to the stress from blogging. In describing the stress, the article states:

I was a corporate lawyer and an entrepreneur, and I know about working all the time. But now, you’re always worried a big story is breaking in your e-mail, and if you wait an hour, you’ll miss it. Every morning when I wake up, the panic hits and I have to see my e-mail as soon as possible.”

To me blogging is fun and gives me a chance, in a small way, the development of the law and public opinion. If you think about it, that is what we professors due when we write law review articles. As for stress, get a life. As most adjuncts know, stress is when you have 2 briefs due the next day, you have to prepare for class and cannot get an extension of time.

Mitchell H. Rubinstein 

The 10 Fundamental Principles Of Blogging

The 10 Fundamental Principles Of Blogging by the Blog Mill (which makes blogs for a fee) are as follows:

1.) Blog on your passions - Write on something that you are passionate about. Something that you have somewhat achieved a level of expertise in, something that puts you on fire, something that makes your eyes wide open when discussed about, something that awes and amazes you and opens your mouth wide open.

2.) Blog for people  - Although search engine optimization is something that should be seriously considered by all bloggers, it should not take precedence over people. Blogs should not be all about keywords, tags or any other gimmick out there in order to make sure that we all each get a higher search engine. What is important that people keep coming back to your site because your post actually helps them or is relevant to them. I believe it was legendary marketer John Chow who said “People First before Google.”

3.) Blog frequently -  The length of the post is not as important as it’s frequency. Posts may be long or short depending on the topic covered. What is important about the blog is that the blogger frequently updates his blogs.

4.) Just blog - If you are a new blogger, don’t worry about your site statistics or that you still do not have comments on your site. Just blog away ! It takes a while for search engines to index your site.  Also if you write good posts and you are blogging for people the traffic will just flow.

5.) Learn more about blogging - Bloggers should not stop learning about how to be more effective in their craft. Learn more about topics on how to be effective on your blogging, about search engine optimization, etc. The moment you stop learning, you stop to blog.

6.) Bloggers are readers - Personally I believe that there is nothing to blog about if you do not read about your passions. You must have an insatiable thirst for learning and a passion to communicate what you have learned to your readers.

7.) Blog with a schedule - This is something that I have not read but something I am personally trying to implement. I believe having a blogging schedule will force you to think of something to blog about. This may not work for others as they just blog whatever comes into their mind. Being a structured person, I work best when I submit myself to a structured way of doing things. Using a blog schedule will also ensure that I have balanced the number of articles on the categories that I wish to blog.

8.) Personalize your blog - When readers read your post they must feel that it is as if you are personally talking to them. Don’t use highfalutin words nor should you be too scholarly that your readers will have to look into a dictionary before they could even understand what you are saying. Talk to them in layman’s term as much as possible, no matter how technical the subject is. Inject some humor if you like.

9.) Aim for excellence in your blog - Edit your posts, review your presentation and layout. Make sure it is user friendly and not an eye sore. The principle of excellence very much well applies when it comes to blogging.

10.) Blog for life - Don’t view blogging as something that you are temporarily doing just because you don’t have anything to do as of now or something which you do in order to achieve a certain amount of money and afterwards you will then stop blogging since you have already achieved your goal. Plan to blog for life. Blogging may bring you monetary “blessings.” However always consider that such is only secondary. As you go about your day to day experience, having an attitude of blogging for life will make you further appreciate such experiences since you will looking forward to writing it to on your next posts.

Much of this seems like good advice.

Mitchell H. Rubinstein

College Student Blogger Arrested For On-line Threat On College Blog

Blogger Threatens LA Campus Shooting is a December 9, 2007 Associated Press article which reports on a college student blogger who threatened to shoot people at Loyola Marymount University. The student made this threat on a blog called juicycampus which is frequented by college students. As the article states:

Los Angeles police arrested a 21-year-old Loyola Marymount University student in connection with an online threat to shoot people on campus, officials said Saturday.

Police arrested Carlos Huerta, a senior at Loyola, for investigation of making criminal threats. Huerta was taken into custody on Saturday night near his apartment on campus.

Huerta is suspected of posting a message that he would shoot and kill as many people as possible on campus before being killed himself by police, authorities said. The anonymous threat appeared on a blog called Juicycampus.com, used primarily by college students.

If true, this college student appears to be a copycat that we see so often in criminal law.

Mitchell H. Rubinstein

Blogs Cited as Reason for Attorney's Change-of-Venue Request

Blogs Cited as Reason for Attorney's Change-of-Venue Request is an interesting December 4, 2007 National Law Journal article by Peter Page which is about a change of venue motion in a criminal case based in part upon what had been said in blogs. As the article states:

A Tennessee defense attorney is arguing for a change of venue in a racially charged double murder by citing postings on Internet blogs along with newspaper and television reporting -- a move that legal observers say may become more common.

Attorney Philip Lomonaco of Knoxville, Tenn., called the Internet "the largest unregulated source for information" in the community, and said it had been used to "outrage and taint any jury pool" that could be seated to hear the case against Eric Dewayne Boyd.

Boyd, 34, faces federal charges of hiding the alleged ringleader of four suspects in a carjacking that resulted in the abduction, rape, torture and murder of a young couple on a date. The victims were both white, while all the suspects are black.

The case is U.S. v Boyd.

Internet postings insisted the victims were each sexually mutilated, a false allegation that authorities did not refute for five months, Lomonaco alleged in his motion.

While this motion is certainly different, I doubt very much whether a blog will be treated any different than a newspaper article from a national paper. Blogs can be read by people all over the world, just like the New York Times.

Mitchell H. Rubinstein

The Dark Side of Blogging and Law Professor Writings

Leonard Link run by NY Law School Professor Arthur Leonard has an excellent November 17, 2007 story entitled entitled "Personal Diary: The Pains and Perils of Journalism and the Internet" which is about a painful phone call Professor Leonard received who was a party to a case he wrote about.  Professor Leonard wrote about his case 5 years ago and but for the internet, only lawyers may have discovered it. Now, if you Google this persons name you can find out that he sued his employer for sex discrimination by claiming that he was illegally fired because he was gay. As Professor Leonard explains:

    I just experienced a painful phone call that derives entirely from the recently developed phenomenon of what I call "auto-googling."  Most people with an internet presence will google their own names from time to time, mainly out of curiosity to see where they are being mentioned.  As access to the internet has become more and more widespread, this phenomenon increases... And it has, I suspect, become as much of a pain to others who have practiced journalism on-line as it has become to me.

Before the advent of the internet and blogs much of what we write about would only be accessible by legal researchers and law professors. It is easy to forget that there are real people and real lives behind what we write about. Prudent lawyers should inform their clients that if they go to court, there story is going to be public. In this day and age, that means that there story may get out.

Mitchell H. Rubinstein 

Navigating Social Networking Tools: Blogs, Wikis, RSS Feeds and Beyond

University of Georgia School of Law Professor Elizabeth Geesy Holmes wrote a very interesting article entitled "Navigating Social Networking Tools: Blogs, Wikis, RSS Feeds and Beyond" which provides an excellent description of recent internet developments. The abstract provides:

What are “social networking” tools, and why should lawyers care about them? Wikipedia, itself built on social networking software, notes that social networking refers to a category of Internet applications to help connect friends, business partners, or other individuals together using a variety of tools. These applications, known as online social networks are becoming increasingly popular. This phenomenon is also known as Web 2.0. Jack Maness, a librarian at University of Colorado at Boulder, defines it as, "not a web of textual publication, but a web of multi-sensory communication … a matrix of dialogues, not a collection of monologues. It is a user-centered Web in ways it has not been thus far." In Web 2.0 the end user – you – is (or at least has the option to be) an integral part of the data. Some of the social networking tools you may or may not be familiar with are: Blogs, Wikis, RSS Feeds, Tagging/Bookmark sites, Podcasts and Vodcasts. I will discuss these tools, how to find them, how to use them, and their possible relevance for lawyers and for legal research.

Hat Tip: Law X.0

Mitchell H. Rubinstein

Is a Law Blogger a Journalist?

Legal Blog Watch raises an interesting question about whether a blogger is a journalist. Apparently, Howard Bashman who runs How Appealing was asked to remove a case he uploaded because the court included it on its web site by mistake. The court claimed that it was security reasons and Mr. Bashman refused to remove it. In a letter to the ABA Bashman writes that no one explained to him how the publication of the opinion raised security concerns.

I believe Mr. Bashman's actions were shamful. As for bloggers being journalists, I think we certainly are journalists. Today all of the major newspapers have web editions and I do not see us any different than an independent journalist. I also believe that most journalists would have complied with the Second Circuit's request.

Mitchell H. Rubinstein

Does the Americans With Disabilities Act Apply In Cyberspace?

On September 6, 2007, Sherry Karabin wrote a very interesting article for law.com entitled "Companies, Courts Debate Whether ADA Applies to Web Sites".

The legal issue is whether Title III of the ADA which applies to "places of public accommodation" is applicable. If a web site is considered a "service" of a place of public accommodation, the statute is probably applicable.

Thus, far most of the litigation has focused on whether there is any duty to accommodate the visually impaired. Though only a handful of lawsuits have been filed, some companies are never-the-less, making appropriate accommodations. The article discusses current litigation involving Target and the National Federation of the Blind where Target is apparently arguing that the ADA is not applicable.

Other than a web site that is maintained purely for advertising purposes, I cannot imagine that the ADA would not found to be applicable. Today, millions of individuals purchase products on line and use the internet to research products. From a legal point of view, I do not see a difference if an individual comes into a store to purchase a handbag or decides to purchase it on-line.

It also must be remembered that the duty to accommodate is not absolute. If an undue hardship is presented, a certain accommodation may not be required.  It seems to me that we can debate what level of accommodation is required, but as to the applicable of the ADA-that seems like a no-brainer.

Some scholarly commentary is surely needed with respect to this area of law.

Mitchell H. Rubinstein         

How to Find Material To Blog About?

I recently came a RSS feeder that has made it easier to to find material to blog about. The site is www.netvibes.com It enables you to see several postings from each of your blogs at the same time. Thus, on one large web page you get a series of boxes which show all the information. Prior to this find, I was using bloglines, which works great but you have to click on each individual feed to get content. I still use bloglines mobile on my Treo to be able to read Feeds on my phone.

Anyone else have any recommendations??

Mitchell H. Rubinstein 

Unauthorized Practice of Law in Cyberspace

Shari Claire Lewis has written an interesting article in the June 5, 2007 New York Journal entitled "Unauthorized Practice of Law in Cyberspace."  In this article she raises the spector that lawyers may be unknowing engaging in the unauthorized practice of law by corresponding with individuals in other states over the internet. She also discusses a 9th Circuit case where a company that designed an interactive software program to prepare a Bankruptcy Petition was found to have engaged in the unauthorized practice of law. The company had  provided "automated counsel" to fill out the document and was found to have acted unlawfully even though a live person was not interacting with the client.

This piece certainly raises issues that we users of the internet need to think about.

Oh, did I include my disclaimer! Nothing contained herein should be construed as legal advice. This blog is designed for educational purposes only. Please consult with an attorney of your choice to discuss your specific situation. 

Mitchell H. Rubinstein   

Bloggers Beware-Short Primer on Fair Use

Julie Hilden, a Find Law columnist, wrote a nice summary of the Fair Use doctrine in Copyright Law and she reminds us bloggers to stop and think before we cut and paste material off of the internet. Her column entitled Perez Hilton, Michell Malkin, and the "Fair Use" Exception to Copyright Law: What are the Rules When Bloggers Use Video Excerpts and Photographs Without Permission, published on May 16, 2007, does a nice job of summarizing the four major factors courts examine under the Fair Use doctrine and she applies those factors to high profile recent disputes involving bloggers.

Mitchell H. Rubinstein