Wednesday, January 31, 2007

Photo Gallery

Since I couldn't possibly post all of the wonderful photographs that people shared with me, including those from Roland and from Francoise, I've taken many of them and put them up in a separate gallery, which you can visit here.

From CLCC WWM 2007...

Please go enjoy! Someday when I have time I'll try to add captions... (Time -- What a concept.)

And, if you took some (reasonable number of...) photos you would like to share with the rest of us, please e-mail them to me and I will be glad to add them.

Floppies Are Dead

The BBC is carrying a story that "Computing superstore PC World said it will no longer sell the storage devices, affectionately known as floppies, once existing stock runs out."

Cue the funeral dirge.

Anyone want to guess how many years it will take for the USB Thumbdrive to die?

Tuesday, January 30, 2007

USS Agin (NCC-2007)

As a dedicated fan of this blog, Warren Agin took to heart our request that we have some Enterprise models made out of old diskette cases brought down to Little Rock. Not only did Warren follow through, he made his own improvement on the design by using some of the actual diskette as a new piece of cowling for the front of the ship.

Of course, after asking all of you do to the same thing, I'm unhappy to report that I rummaged through my home and could not find an old floppy. I must have taken housecleaning to too much of an extreme...

PREVIOUSLY: What it's Really All About...

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Monday, January 29, 2007

Kudos for Our Writing Teams

Eran Kahana and Elizabeth Bowles, co-authors of a recently published Business Law Today article on the famous incident regarding Sony-BMG and DRM software that ran amuk, have been receiving kudos from readers regarding their work. "Very well-written and helpful and, of all things, refreshingly clear," said one reader. I, of course, totally agree.

And, if that sort of thing does not suggest to you that writing for BLT is a good thing for you to get recognized in the national legal community, well -- I don't know what would! Remember -- If you think you should be the next one of the Committee's members who gets that sort of message, get in touch with Vince P, Juliet M, Candace J or myself and we shall set you on the path.

EFF's Internet Law Treatise

We were joined at WWM this year by Lee Tien, Senior Staff Attorney at the Electronic Freedom Foundation. Lee sat in and added his own and his organization's point of view to many of our discussions, and we all look forward to more time with him in the future. You can pick up a bit of Lee's own bio by scrolling down on the EFF's staff page at

Lee pointed out to me that the EFF is currently in the process of drafting its own wiki-based summary of Internet law, currently housed at The Internet Law Treatise is a project to maintain a treatise summarizing the law related to the Internet with the cooperation of a wide variety of attorneys, law students and others. It is apparently based on an earlier publication issued by the Perkins Coie firm from 2003, which has allowed EFF to run with this on the proviso that we all acknowledge that Perkins is not responsible for the results. (In a sense, this is quite similar to how Prof. Larry Lessig has issued a 2nd edition of his famous Code and Other Laws of Cyberspace, known as Codev2, which was largely developed by others working on top of the 1st edition through a wiki set up by Prof. Lessig.)

The EFF's project is not officially sanctioned by the Committee, nor do we participate in it as an ABA effort. But, we are happy to pass on Lee's request that we let our members know about this, since we are certainly not the only game in this town. If you are interested, contact Kurt Opsahl at the EFF for information on getting access to the wiki for participation. (And, let us know if you get involved!)

UPDATE: Kurt himself just contacted me to remind me to remind you that the current draft you see of the Internet Law Treatise is most definitely a beta, and should be read with that in mind -- Which demonstrates the need for good lawyers to come in and assist!

Sunday, January 28, 2007

Taking EULAs to Task

Boing Boing comes through yet again with a very interesting site dedicated to lampooning those horrible, one-sided EULAs. Claiming they are likely not enforceable, this site is dedicated to helping the little guy fight back.

Here's the text of their Anti-EULA:

READ CAREFULLY. By [accepting this material|accepting this payment|accepting this business-card|viewing this t-shirt|reading this sticker] you agree, on behalf of your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies ("BOGUS AGREEMENTS") that I have entered into with your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to my ongoing rights and privileges. You further represent that you have the authority to release me from any BOGUS AGREEMENTS on behalf of your employer.
They even have t-shirts, bumper stickers, and stickers you can add to your stationery, the backs of your checks, etc. Here's a sample of the t-shirts:

At the wrap up from the Winter Working Meeting, Chris Kunz mentioned they were contemplating another article on the enforceability of online agreements. They've covered how to get a binding click, and whether click free can still constitute a contract or otherwise bind a party. The next article is to be about modifying online agreements. Perhaps we should invite these guys to participate in the process. It would certainly make for an interesting discussion.

They even have a link to submit examples of abusive EULAs. I bet we'll find some good examples during the drafting process for the third article. Here's the link.

Finally, the profits from the sale of a lot of the paraphernalia go to EFF.

Swedish Embassy in Second Life

Proving yet again, that our meetings cover the most timely of topics, I read a news blurb on the world's best Blog, Boing Boing, that the Swedish Institute, an agency of the Swedish foreign ministry, will be establishing an embassy in Second Life. And we thought we were being avante garde by talking about the tax implications of gigs like Second Life.

Just think of the legal issues surrounding the establishment of an embassy: Passports, Visas, even requests for Asylum. Let's do a joint program with the Immigration Section of the ABA.

Here are links if you'd like to read more:

Boing Boing Post
Swedish News Article
The Swedish Insitute

Yag tale inte Svenska. (Which I think means, "I Love Sweden," but my Swedish is a bit rough.)

Saturday, January 27, 2007

The Transferrable Records Guys

Mattias, Mike, and David, asking, whether it's a payment intangible, a general intangible, a receivable, or something else. Why, Oh Why, can't we just create Article 3A?
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Perusing History

Michael Gordon, checking out the history walls in the Library.
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Sitting in the Big Guy's Chair

Elizabeth Bowles arranged for a tour and dinnner at the William J. Clinton Presidential Library. Several of us had the opportunity to sit in the President's chair at a replica of the Cabinet Room. I think John Gregory looks the most Presidential (which is odd, since Canada doesn't have a President, go figure!).
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If anyone want's the image file for their picture, send me an email. I'm not posting my address here for obvious reasons. Candace or Michael Fleming have my gmail address if you don't.

Friday, January 26, 2007

Can you spot Clinton's laptop?

From the Oval Office reproduction at the Clinton Library...

The President's laptop (and it isn't a Macintosh!) looks like a clunky IBM ThinkPad. But, it has a cool logo on the lid.

(the Macintoshes were downstairs)

Watching Presidential Comedy at the Clinton Library

From Friday night's dinner at the Clinton Library, a crowd of Cyber-spacers entranced by President Clinton's videos.

CAIT "blog-policy" project

The CAIT subcommittee discussed (09:00-11:00 today) the question of company-related blogs (both "official" and unofficial, including employee off-company blogs), and the related legal exposure issues. Steve Hollman prepared a good collection of related news and materials, and others (Will Suchan and Robt. McKew) sketched specific implications for speciality employers (i.e., the US Military, and outside law firms, respectively). Vince Polley referenced a 2002 ABA book on "Employee Use of the Internet & E-Mail (a model corporate policy)" which pre-dates blogs, wikis, podcasts, IMs, and VoIP exchanges; this book is ripe for an update.

The group determined to pursue a possible panel program at the ABA Annual Meeting in San Francisco this coming August on this subject, with an objective of producing material that can be integrated into an update of this ABA book. The program presentations (e.g., in PowerPoint) would be designed to be re-deliverable by audience members to other, downstream audiences (with detailed speakers notes, ancillary materials, and audio-recording of the August presentation).

As a first matter, the group will refine a list of possible legal issues (prepared by Steve Hollman), and begin to build a list of possible panel participants who would help build the internal program-application to Candace. If you're interested in participating, please contact Steve Hollman or Bill Denny.

Plenary Session Opens

We are underway in Little Rock!

(And, many of us are actually awake!)

Committee Chair Candace Jones, overcoming her dislike of Mics (not Mikes though) had her famously short plenary session going -- And then, we're all off to work!

Wednesday, January 24, 2007

Little Rock Restaurants

Elizabeth Bowles has provided us with a directory of restaurants (PDF - about 3 MB) from the local Convention and Visitors Bureau. Elizabeth has also added her own editorial commentary, complete with ratings (ranked by number of Aristotles -- You'll just have to look I guess...). Don't be stuck in the hotel restaurant all the time!

Tuesday, January 23, 2007

The Debate over Deep Linking Isn't Over

A Texas Court ruled that deep links to an audio file posted on the Internet violate copyrights. Hmmm. I thought we'd figured this one out already--with the opposite result being the usual result.

It turns out the defendant was pro se. Maybe that had something to do with it.

Here's a link to the Judge's decision.

It's only 319 miles from Little Rock to Dallas. Maybe we should make a road trip from the Winter Working Meeting and see if we can file an amici in person?

Sunday, January 21, 2007

What it's Really All About...

So, despite all of the time we spend convincing our bosses and spouses that we're working on this cyberlaw stuff because it has deep and overarching meaning for the future of the world, we all know better, right?

It's because we get to hang out on the Web long enough to eventually find out how to turn metal parts out of old floppy disks into models of the Starship Enterprise.

I'll expect to see at least 50 of these when we meet in Little Rock. (Be careful -- Sharp edges! And, from the wiki -- "Warning: Do not attempt to place your new model into a floppy disk drive.")

[props to Lifehacker]

Saturday, January 20, 2007

Schneier Revisits Vendor Liability as The Cure to Bad Software

Bruce Schneier, long a favorite of many of us, has posted an essay on his blog that revisits his long-standing position that one reason software continues to be so bad is that vendors continue get away with walking away from responsibility for their actions. This time, he puts it in terms we may remember from freshman economics:
[W]hat the vendors do not look at is the total costs of insecure software; they only look at what insecure software costs them. And because of that, they miss a lot of the costs: all the money we, the software product buyers, are spending on security. In economics, this is known as an externality: the cost of a decision that is borne by people other than those taking the decision.

I was reminded yet again today of those externalities when I opened my (snail) mail to news from my bank that my debit card was about to be replaced (again for the 2nd time in a year!) because the cardholder association had alerted the bank that an un-named retailer had been hacked and our card was one of the victims. "Oh, and by the way, be sure to look carefully to see if you're card has any unusual charges on it."

Not only is the software vendor who put out junk that was so easily hackable going to get out of paying me for my own costs and added risks, but the retailer who chose to buy that junk is probably going to suffer little but a slap on the hand from the cardholder association. Our bank points out that it will not be informed which retailer managed to blow it this time because of confidentiality rules imposed by the cardholder association. My wife pointed out that if she knew which store had blown it this time she would be sure to take her business elsewhere -- Hit 'em where it hurts.

Thursday, January 18, 2007

Business Section Spring Meeting -- Early Bird Registration Closes on Friday Jan 19!

If you are planning to be at our Washington DC meetings this March, the Early Bird Registration deadline is Friday January 19. Go here to register!

(That's not the last date to register - Just to get the cheaper price! You'll still be welcome if you sign up after the 19th of course.)

Smokers Alert for Little Rock

As have many other states, Arkansas has passed its own Clean Indoor Air Act. You'll need to be outside to smoke, or in a 'bar' -- Which doesn't include most restaurants. I'm sure you'll find details once on the ground, but you are hereby warned.

Tuesday, January 16, 2007

Judge Tries to Unring Bell Hanging Around Neck of Horse Already Out of Barn Being Carried on Ship That Has Sailed

In a rather interesting story, it turns out Eli Lilly, some lawyers, a wiki, and its contributors are having a bit of fun with freedom of the press and prior restraint. Apparently, some documents under seal were subpoenaed, found their way onto a few web sites and then onto a wiki. The Judge has issued a rather expansive order demanding that the distribution stop and that copies be pulled back in.

There's a showdown in federal court on this issue this week.

Here's a link to the web site of the lawyer who apparently managed to "free" the documents.

Here's a link to a story on the New York Times web site.

And finally, here's a link to a blog maintained by a law professor that refers to this issue. I borrowed the very imaginative title of this post from his site.

Whatever your thoughts about the merits of the underlying dispute, this case is a good lesson in how futile it may be in today's hyperconnected world to enforce protective orders, or at least to clean up after documents are released into the wild.

Monday, January 15, 2007

Business Blogging Article Published

Our Committee's own John Ottaviani, Prof. John Bagby and Kristie Prinz have been published in the new issue of Business Law Today. Their article, entitled When a Business Begins a Blog--It's easy, but is it safe?, addresses the phenomenon of companies starting their own blogs for marketing purposes. ABA Business Section members can click on the preceding link and read away.

Given this and the Kahana/Bowles article published in the same issue of BLT, the Cyberspace Law Committee continues its run as one of the most-published entities within the Section of Business Law (if not the whole ABA!).

Congratulations, and a big thanks, to all of our newly published authors.

And, if you are in the committee and want to be the next one to gather kudos about this, be sure to get in touch with our committee's Publications Chair Prof. Juliet Moringiello -- She has all of the details, including word on the new short-format articles (600 or so words) that the magazine is constantly looking to receive.

Friday, January 12, 2007

Arrivals and Departures

To help facilitate ride sharing, and the reconnection of old friends, I thought I'd post arrival and departure times that I'm aware of. If you have additional times, put them in a comment below, and I'll update the list (until I get overwhelmed and give up).

In deference to Roland, all times are given military style. Of course, all times here are local time in Little Rock (Central Standard Time).





  • Michael Fleming
  • Michael McGuire (Yes, Believe it or not, I'm coming)
  • Chris Kunz
  • Eran Kahana
  • Lisa Lifshitz
  • John Ottaviani
  • Bill Denny
  • David Satola
  • Steve Middlebrook

  • Vince Polley


  • Kristine Dorrain
  • Candace Jones

  • Mattias Hallendorff
  • John Gregory






  • Lisa Lifshitz
  • John Ottaviani
  • David Satola


  • Candace Jones
  • Bill Denny
  • Steve Middlebrook


  • Chris Kunz
  • Vince Polley



  • Kristine Dorrain
  • Eran Kahana



  • Michael Fleming
  • John Gregory

Wednesday, January 10, 2007

Little Rock -- Transportation Concerns

Some committee members have been asking if they should rent a car, depend on taxis, and so forth during the Little Rock meeting.

The Doubletree Inn is about 7 miles from the airport. The hotel's web site suggests you can get a cab for $14, but the hotel also has a courtesy shuttle between the airport and the hotel (and presumably back again!). If interested in the shuttle bus, call the hotel at 501-372-4371.

If you do choose to rent a car, the hotel has free parking for registered guests.

For transportation within the downtown environs, our host Elizabeth Bowles recommends use of the trolley system. It runs from about 11 AM until midnight (5 PM closing on Sunday), and costs 50 cents a trip. We will all be likely using the trolley when we are heading over to the Clinton Library on Friday night. It would seem likely that most of our group socializing over the weekend will be either walking distance from our hotel and/or trolley distance.

(Click on the map for a larger version.)

If your plans were to do any serious touring outside of the downtown area, a rental car is definitely called for.

Thursday, January 04, 2007

Creative Commons Tool to Terminate Transfers of Copyright

Here is an interesting post from the Creative Commons Weblog. They have created a tool to allow creators a way to exploit the 35 year limit in the Copyright Act on certain transfers of copyright.

Here's the introduction to the Blog posting:

Creative Commons is excited to launch a beta version of its “Returning Authors Rights: Termination of Transfer” tool. The tool has been included in ccLabs — CC’s platform for demoing new tech tools. It’s a beta demo so it doesn’t produce any useable results at this stage. We have launched it to get your feedback.

Briefly, the U.S. Copyright Act gives creators a mechanism by which they can reclaim rights that they sold or licensed away many years ago. Often artists sign away their rights at the start of their careers when they lack sophisticated negotiating experience, access to good legal advice or any knowledge of the true value of their work so they face an unequal bargaining situation. The “termination of transfer” provisions are intended to give artists a way to rebalance the bargain, giving them a “second bite of the apple.” By allowing artists to reclaim their rights, the U.S. Congress hoped that authors could renegotiate old deals or negotiate new deals on stronger footing (and hopefully with greater remuneration too!!). A longer explanation of the purpose of the “termination of transfer” provisions is set out in this FAQ.

And here's the link to a very well organized FAQ on the provision of the Copyright Act and the tool:

Wednesday, January 03, 2007

Sony Settles DRM Class Action in 40 States & DC

Knowledgeable Cyberspace Law Committee members will recall that our own Eran Kahana presented a great 'Hot Topics' discussion at last Spring's Business Law Section Spring Meeting in Tampa, Florida regarding the Sony DRM fiasco. For Section members, you can grab a copy of the materials from that presentation here. Eran and his fellow member Elizabeth Bowles are now slated for publication in a future published in the current issue of the Section's monthly Business Law Today, discussing this matter with a bit more hindsight, and focusing on how businesses might avoid stepping into such public relations nightmares by being a bit less cavalier about use of electronic contracting but rather being a bit more willing to open up to the consumers who are being impacted.

But, what about the 'rest of the story' for Sony?

On December 21, 2006, forty states and the District of Columbia settled with Sony BMG Music Entertainment ("Sony") regarding the anti-copying software which was installed allegedly without consumer knowledge or agreement via music compact discs distributed in 2005. On December 21, Sony entered into an Assurance of Voluntary Compliance or Discontinuance and agreed to pay $4.25 million to the states, and also to pay up to $175 per consumer who incurred damage while trying to uninstall the software.

Sony has also agreed that it will not distribute music CDs with DRM software without first going through a series of corporate reforms, and that it will replace all of the affected CDs at no charge. I note that Sony has gone to great lengths to publish a 3rd party's audit report, which states the auditor's opinion that Sony never took advantage of any access it might have had to individual's personal information by way of the DRM software. (Personal identity information might have been the lurking issue underneath all of the discussions about people's computers getting trashed by the software that was getting the major press.)

Maybe this will mean a great deal for those of us who were ultimately concerned about the sanctity of our own computers, as well as the use of electronic contracting techniques to 'sneak' unexpected terms by unsuspecting consumers. In the end, those are the issues that should have mattered through this whole discussion.

But, one sitting above the fray might suspect that the public outcry was really less about computer sanctity and the majesty of knowing-contract, and really just another public protest against the whole concept of DRM. In that regard, the victory here is short-lived and rather meaningless. As I stare right now at my own iPod, of which about 25% is filled with tunes I downloaded off of Apple's store, I realize that the battle over copy protection is being waged (and likely won) through less obnoxious means than secretive software that takes over my computer's root functions. (And, before you ask—The other 75% are copies from my own purchased CDs—What do you take me for?)

(Fleming's aside: If you still believe regular folks were really up in arms over the 'sanctity of the computer' instead of just protesting copy-protection, I'd suggest that all of us tech-savvy readers, of which I suspect most of you reading this might be, go back and look carefully at your Uncle Alfred's vintage 1999 Windows ME machine, which he's just happy with using every day for e-mail and the occasional Web surf, particularly since he found all of those nice smiley-faced icons for his mouse that that one Web site was offering for free one day last year... Same goes for your 15 year old niece's machine that you get called about every few months because her home page keeps changing to some oddball search engine without warning instead of her boyfriend's mySpace page. You guys with me now? OK.)

Information on the Sony settlement is available here. For the time being I have posted a copy of the Assurance document here. (Given very limited space, I won't leave that document up for more than a couple of weeks, so get your copy soon!).

(Irony time: One of the 10 states that had not settled with Sony as of December 21 was my own home state of Minnesota—The company that is processing the consumer claims for the settlement is located in (you guessed it) Minnesota. What does that say about us? Anyway, I can't find any resource to find out which other states might have opted in since December 21.)

(UPDATE: I should have noted that California and Texas also entered into their own settlement with Sony apart from this 40 state thing. I have not had time to peruse whether the $175 to consumer part will apply to Californians and Texans as well. New York is apparently part of the 40 state thing, even though it had an earlier settlement with Sony from December, 2005.)

(Another aside: Is there any doubt that keyword advertising has come of age? Sony was obligated to publicize this settlement as follows:

SONY BMG shall continue, for at least 12 months from the date of this Assurance, its program of using “keyword buys” ” and “bannering” on capable CDs to give consumers notice of the known forms of security vulnerabilities to their computers and of information consumers can obtain regarding the protection of their property. The “keyword buys” and “bannering” shall also disclose to consumers any known loss of functionality that can occur following use of XCP or Media Max CDs, including, but not limited to, the disabling of a CD-ROM drive. SONY BMG shall consider in good faith any suggestions the States may offer concerning possible adjustments to the specific terms of the keyword buys program and the language displayed to consumers in connection with the relevant links and landing pages. SONY BMG shall adopt procedures to monitor and ensure that such keyword buys result in consumers receiving a Clear and Conspicuous link on the first page of returned results. The return result shall provide a warning of the security vulnerabilities and direct consumers to additional information on XCP and MediaMax patching and removal. SONY BMG shall adopt procedures to monitor and ensure that banner ads function properly and provide consumers with a Clear and Conspicuous warning of known forms of security vulnerabilities and the website address to obtain additional information on XCP and MediaMax patching and removal.

So, that means you now get this when you search for SONY DRM on Google (click to see a bit bigger):

Surely this is the coming of age for keyword advertising, no?