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The Latest Developments - January-March, 2001
03/18/01: The ABA: As the Organization Founders, Its Members Gain
03/14/01: West Group and Big Blue: Marketing the Unhappy Web Site Experiences
03/09/01: Get Your Legal Services Online
03/01/01: Iowa’s Ethics Board and the Web: Still at Odds
02/27/01: Would You Like Some Frequent Flyer Miles with Your Legal Work?
02/19/01: Seeking Sixty Sites
02/05/01: Three Things West Must Do with Findlaw
01/30/01: First White House Web Site Transition
01/22/01: Memo to Rehnquist: No Raise for You
01/08/01: New Year's Resolution for Trademark Lawyers: Get a Life
01/02/01: 'Scusi-- Parla Internet?
It’s Freelancers’ Time ! They Win Against the
National Geographic; Supreme Court Hears the Tasini
Case Today (03/27/01)
Today, the U.S. Supreme Court hears the freelancers’ case against the New York Times and electronic publishers who re-use (or republish) freelance articles in databases, without additional payments to the authors, and, until recently, without permission. The Court should render a decision in Tasini v. The New York Times Co. by June.
But on Thursday, March 22, a three-judge Court of Appeals in Atlanta decided a virtually identical case against the publishers of the National Geographic. Greenberg v. National Geographic Society, No. 00-10510-C (11th Cir. Oct. 3, 2000). The Court of Appeals decision in favor of the freelancer unanimously reversed the ruling of a Miami district court judge.
A freelance photographer, Jerry Greenberg, had sued the National Geographic, which had republished his photos when it issued thirty CD- ROMs consisting of every issue of the magazine from 1888 to 1996. The freelancer claims that this re-use of his work required additional payment (not to mention his permission). Publishers argue that they have the right to issue compilations, on paper or on screen, without determining whether or not these “new works” contain contributions by freelancers. Recently, historians such as Doris Kearns Goodwin have weighed in in favor of the publishers, stating the compilations of published works are an important part of our cultural heritage.
In a better world, a good compromise could be reached, such as the establishment of a registration and licensing agreement, much the way radio stations pay small copyright fees when they play songs (Napster, anyone?). But the Supreme Court can’t order that one be buillt. And newspaper publishers, like many old world powers, are used to treating most freelancers--and many staff reporters and writers--as poorly paid, fungible pieces of excrement. (Hollywood strike, anyone?) If the publishers lose this case, and the Greenberg and Napster cases imply that they might, a major shift in mindset will be required.
A quick example from personal experience: many years ago, when the American Lawyer magazine was under different management, freelance contributors, such as lawyers who wrote articles on the areas of their specialty, would be charged “copyright fees” when they wanted reprints of their own articles. Of course, the freelancers had never given up the copyrights to their works. (A copyright can only be transferred in writing).
The magazine was charging people for something--the copyright--that the outside writers always owned and had never relinquished to the publication. And the writers paid it! Even if they were lawyers! And sometimes they were copyright lawyers who should have known better! (I’d like to think they were advising their clients with more care). Photographers were always much savvier about their copyright rights--we called them for reprint permission. When I tried to change our reprint policy towards freelancers, the response from the legal department was a six-page, single-spaced form that required freelancers to give up all copyright rights and, I think, their first-born children. (Lawyers, anyone?). Eventually the magazine just increased the reprint fees, incorporating the copyright fees but dropping the separate line item stating “copyright fee.” Progress.
A good article about the National Geographic case is on the site of Inside, written by former American Lawyer senior reporter Roger Parloff, at www.inside.com/jcs/Story?article_id=26636&pod_id=7.
The ABA: As the Organization Founders, Its Members Gain
(03/18/01)
I've just returned from an excellent technology show at the American Bar Association. I'll write more extensively about it later, but it was clear to me that the technology had improved slightly in meeting lawyers' and clients needs--but the lawyers and legal tech staffs have improved mightily in knowing what to do with the gadgets, and in harnessing the power of the Internet to serve clients. "They finally get it," said one longtime vendor on the crowded TechShow floor. Many of the speakers, especially practicing lawyers, spoke in practical terms of how the technology helped them and their clients in their daily lives. People were also refereshingly frank about admitting how much time, or support, or money the technology required--the irresponsible "hype" of the past was gone, replaced by real experience and valuable advice from those who had made expensive mistakes.
But unlike those attending TechShow, the TechShow's sponsor, the American Bar Association, is weakening. Recently the Bush administration announced it would begin to end the ABA's traditional role in the selection and screening of judges. The other high-profile role the ABA plays is in accrediting law schools--and as online education begins to emerge, the ABA is not apparently moving to meet the challenge.
Basically the ABA has become less connected to the daily lives of lawyers and clients. Its vote this past summer to reject Multi-Disciplinary Practices (MDPs), where lawyers team up with accountants or other professionals to better serve clients, placed it at odds with many lawyers--and their clients. It is clients who have driven most of the high-tech and structural changes which are changing the profession. According to its own by-laws, the ABA cannot consider the issue again for two years.
Ethics rules against Multi-Jurisdictional Practices (MJP) are routinely ignored. Indeed, it was refreshing when Martha Barnett, president of the ABA, opened the conference by noting that her Florida firm had sent associates to assist its Chicago branch in a major litigation, including taking depositions. "If any of those attorneys were licensed in Illinois, it would be a coincidence," she said. Technically, the lawyers are engaged in UPL--the unlicensed, or unauthorized, practice of law, since they are practicing outside of their jurisdictions. She is setting up a task force to study the ban on MJP, but if lawyers are routinely ignoring the rules, will new rules matter? TechShow had two superb discussions of the issues, led by Canadians. Canada abolished its ban on MJPs long ago. France did so in February.
The proliferation of three-letter acronyms--MDPs, MJPs, UPL--is part of any high-tech event, of course. The question is whether the three letters "ABA" still carry much importance in setting policy, or whether the members have moved far ahead, in seeking to provide better client service.
West Group and Big Blue: Marketing the Unhappy Web Site
Experiences (03/14/01)
People are watching to see how (or whether) FindLaw, a free site, will grow now that it's been acquired by West Group, the company that has gone to the Supreme Court to charge people for citing to the page numbers of its books. Now, the first signs are in. My Web designer, Barbara Leff, went to FindLaw to add a client's site to the FindLaw directory. This used to be a free service. Now, you are no longer able to do that.
Instead, when you click on the "Add URL" link at the bottom of FindLaw's home page, you reach a page that contains a link if you want to submit a law firm site. However, when you click on that link, you get a page (http://firms.findlaw.com/directory/index.html) that states that FindLaw has been acquired by West Group, and you're redirected to West's confusing, sprawling site, Lawoffice.com.
Large companies, especially West, do not seem to be able to provide an easy online experience for their users. If you'd like to read an entertaining article from the New York Times about trying to buy a laptop from IBM, checkout Expecting Better from Big Blue at www.nytimes.com/2001/03/08/technology/08SHOP.html. (Note: You will need to register in order to view this article on the New York Times site.)
We expect better from Findlaw. And from West. To read incisive monthly updates about Web sites good and bad, bookmark Mark Hurt's wonderful reports, at www.goodexperience.com. You can also receive his free reports by e-mail if you register at the site.
Get Your Legal Services
Online (03/09/01)
MyCounsel.com has opened on the Web. The site seems to be a serious online provider of immediate access to legal services. Many other sites, such as Nolo.com and Richard S. Granat's Divorce Law site, at www.divorcelawinfo.com, let visitors do-it-themselves. But MyCounsel explicitly offers legal advice--practices law online. It will be interesting to see if state bar associations take action to limit the site, by, for example, threatening the law licenses of those who serve clients at MyCounsel, or clients referred to them from MyCounsel. A news item about the site is at http://news.cnet.com/news/0-1005-200-4880241.html.
Iowa’s Ethics Board
and the Web: Still at Odds (03/01/01)
The state of Iowa is well-regarded in so many ways, and it’s home to some of the highest of high-tech practitioners. You’d think that Iowa lawyers would be setting the pace for ethical Web practices. But their state ethics board is populated by Luddites who don’t seem to be able to accommodate the Internet. They at first refused to allow Iowa lawyers to use e-mail to communicate with clients, for example. When it comes to Web sites that could provide useful referral services and information for clients, the fun continues:
Iowa Opinion #00-07: The Iowa Supreme Court Board of Professional Ethics and Conduct ruled that an Iowa attorney may not link to and participate in an online referral service that provides consumers with a way to find attorneys by specialty and locale and publishes a wealth of consumer legal content and attorney resources. Iowa 00-07 (12/5/00).
Thanks to Peter Krakaur, who maintains a superb Legal Ethics Web site for pointing out this opinion. To read the opinion, go to Peter’s site at www.legalethics.com/ethics.law?state=Iowa.
Let’s hope that a few people on the board are headed for much-deserved retirement soon. People seeking legal advice nowadays increasingly turn to the Internet--a responsible state ethics board could help, rather than hinder, people seeking guidance. Right now, they are just supposed to call the state bar association and get a referral to a randomly-selected lawyer. We can do better--but Iowa, sadly, will be lagging behind.
Would You Like Some
Frequent Flyer Miles with Your Legal Work?
(02/27/01)
In late February, the Bermuda-based law firm of Appleby Spurling & Kempe launched a new marketing program under which clients who register their trademarks, service marks or patents with the firm will receive American Airlines Aadvantage miles.
Clients receive 1,000 miles for each registration, 500 miles for each renewal. For those organisations that are not allowed to accept such rewards, AS&K will donate the miles in their name to American's Miles for Kids in Need program. The program passes ethical muster with the local bar, says the firm’s marketing director, Roberta Montafia, whose brainchild this was. To read further details about the program and about registering marks in Bermuda, click on the icon on the firm’s home page at www.ask.bm.
I think this brings client service to a whole new level, and applaud AS&K for their creativity.
Seeking Sixty Sites
(02/19/01)
Burgess Allison, at allison@mitre.org, is looking for additions to his wonderful Sixty Sites in Sixty Minutes, a presenation he makes with Jeff Flax every year at the American Bar Association's TechShow in Chicago in March. Please submit great sites to him.
60 Sites from past years can be viewed at
Three Things West Must Do
with Findlaw (02/05/01)
Recently, West Group acquired Findlaw for about $37 million. The good news is that Findlaw, one of the oldest legal portals, is not going to go under in this wave of “dot com dot gone.” There will probably be layoffs, and we can expect more of Findlaw’s sprawling content to suddenly become proprietary (“enter your West identification number here to access this material.”) But the real bad news is that neither West nor Findlaw has indicated that it understands legal research on the Web. Will Findlaw sites now be required to bear page numbers, in keeping with West’s obsession with copyrighted page numbers? Will Findlaw have to start charging exhorbitant and unpredictable sums for its services, in keeping with Westlaw’s billing practices? Stay tuned.
Here are the top three things that would be wonderful to see:
1. Search engine, anyone? Findlaw desperately needs a better search engine. I don’t know anyone who uses it for legal research when the academic sites (Cornell, Emory, Villanova’s Federal Law Locator, Washburn) have search engines that actually retrieve results related to the seeker’s search terms. It’s embarrassing to see a site like Findlaw, which has affiliations with Stanford University, fall so short in the technology area. Yes, search technology is tough--but Findlaw’s search capabilities used to be a lot better. And Stanford spawned Google.com, one of the finest search engines on the Web. Maybe West can make Boolean search terms work well again on Findlaw.
2. Comprehensiveness: Findlaw seemed to stop collecting content or indexing what it had years ago. (Some people started calling it “Lostlaw.”) Anyone looking for a lawyer wouldn’t touch the outdated listings of Findlaw or West--you’d go to Martindale-Hubbell’s Lawyers.com. LexisOne offers far more in terms of free resources-- statutes, cases--than West ever did on the Web. So Findlaw is free, but offers stale content. West is expensive, but offers incomplete content. Can West bring up-to-date content to Findlaw and index it correctly? Can this marriage work?
3. Finally, news. Once upon a time--five years ago?--West launched a legal news service called, if I recall correctly, Westnews. It was one of the finest legal news services on the Web. You could select the topics of cases you were interested in--employment law, intellectual property, real estate--by topic, judge, or West key number. You could also specify geographic area (New Jersey, Second Circuit). The news would be delivered to your e-mail box in the morning, or you could search one of the finest Web sites with your subscriber i.d. and get targeted, useful legal briefings. These news bulletins were the finest “press conferences” I ever attended. No other legal news service has come close. Law.com is too general. BNA is too expensive and not tailored geographically. If West could bring this back--the service was discontinued--they would be harnessing Findlaw’s news bulletins, which currently offer wire copy, with West’s law engine. The lawyers would follow; after a trial period, people would be ready to pay. The legal news marketplace on the Web would be theirs.
First White House Web
Site Transition (01/30/01)
This election was not only among the most controversial in U.S. history, but also required the first transition of the White House Web site at www.whitehouse.gov. At noon on January 20, the Clinton White House Web site was archived without incident by the National Archives.
But the new Bush White House Web site had many glitches upon its debut--dead links, broken images, and a button that read, "PUT SOMETHING MEANINGFUL HERE." No, these weren't pranks from bitter, departing Democrats. These were minor mistakes from incoming Web folks. The site, with its mistakes, was archived for history at www.wired.com/news/politics/0,1283,41319,00.html.
A week after the inauguration, the glitches are gone, but content is scant. Now noted Web designer Jakob Nielsen, whose own site is www.useit.com, makes some suggestions for the new White House site. It's an interesting interview, at www.wired.com/news/politics/0,1283,41325,00.html. But I don't think they can do anything about the porn site at whitehouse.com.
Memo to Rehnquist: No
Raise for You (01/22/01)
Our Chief Justice of the Supreme Court, William H. Rehnquist, is demanding a raise. His annual report on the federal judiciary, issued in mid-January, included a lengthy lament concerning poor judicial pay, which he called "the most pressing issue facing the federal courts." Associate justices earn $178,300 a year. The Chief Justice makes $186,300. He is also allowed, like all federal judges, to earn $21,000 a year teaching. A bill that would have allowed federal judges to earn honoria for lectures, dubbed "The Rehnquist Bill," sponsored by Senator Mitch McConnell of Kentucky, failed. Apparently the Senators did not believe that judges could pocket thousands of dollars in lecture fees from private companies and then judge issues impartially. If they could, they wouldn't be called "judges"; they'd be called "saints."
New
Year's Resolution for Trademark Lawyers: Get a Life
(01/08/01)
The trademark infringement suits are flying thick and fast. As the old year ended, Harvard University sued Harvard Bioscience in Boston federal court, alleging that the company's use of the name Harvard suggested an association with the university. But the company, which was founded by a Harvard University graduate, has used the name since 1901, according to its Web site at www.harvardapparatus.com, without any evidence of consumer confusion--the crux of trademark infringement.
'Scusi--Parla
Internet? (01/02/01)
A lawyer in Washington, D.C. has been retained as chief legal adviser to an Italian government agency to help determine how Italy's laws should be adapted to accommodate the Internet's growth and the convergence of various media on the Net. James J. Halpert, a telecommunications partner at Piper Marbury Rudnick & Wolfe, has worked on Internet policy issues since 1995. He advised the U.S. Congress on the Communications Decency Act, the Digital Millennium Copyright Act, and an Internet gambling bill. (The gambling bill failed, he notes.)
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