Monday, August 27, 2007

Innovation without Permission

This article today in the New York Times about Serena Software's effort to create a Web 2.0 platform for company employees to create their own mashups caught my eye.

The company claims that in the current environment of severe cut-backs, company IT departments probably won't be able to satisfy a company's application development needs. The frustrated employees will need to turn elsewhere.
“The generation that is sitting in their dorm rooms building Facebook applications is going into the workplace in the next few years,” Mr. Burton said. “The whole mindset is innovation without permission.”

How should in-house lawyers respond to this trend and these tools? Sounds like a project for CAIT (Committe on Corporate Aspects of IT). What do you think Don?

Sunday, August 12, 2007

Boing Boing claims Google Video robs customers of the videos they "own"

Boing Boing has an interesting post this morning about a Google user who received a letter telling him that the video's he paid for on Google's Video service were no longer going to be available to him. In exchange, they're giving him a credit on the Google Checkout service that will last for only 60 days. Kind of takes the "own" out of Download to "Own" doesn't it.

Why not kick this one around at the meeting.

Saturday, August 11, 2007

Committee Forum: Website Agreements -- I Didn't Agree to Those Terms, Did I?

The Committee continued its long-standing leadership in the electronic contracting arena. After our groundbreaking articles on Click-Through Agreements and Browse-Wrap Agreements, it was time to revisit some new topics that we've seen bouncing around in recent years.

After spending some time in reviewing the prior scholarship, Chris Kunz, Kathy Porter and Juliet Moringiello went over recent cases involving modifications and amendments to contracts done via electronic means. The cases are still in flux, but we see trends that tell us that principals of 'notice' and basic fairness still apply. The biggest sit-up-and-take-notice moment was discussions of a growing trend in a number of states that find that terms in a contract that allow amendment by unilateral postings on a web site may not only be unenforceable on their own, but might even go so far as to cause the original underlying contract itself to be voided!

Eran Kahana and John Ottaviani spoke on the recent discussions (and very thin case law) regarding 'bots' and their abilities to enter into contracts. While it is pretty clear that 'bots' are recognizable players in a contracting situation, we still wait to see how far the courts are willing to let those things play out.

Putting the Winter Back into Winter Working Meeting!

The Minnesota contingent of our committee is proud to invite all members to the 2008 Winter Working Meeting of the Committee to be held in the Twin Cities on January 25 and 26, 2008.

The event will be held at the Executive Conference Center at the Mall of America in Bloomington.

The world-famous mall is very near to the Minneapolis-St Paul Airport. We will have a block of rooms at a very reasonable price at the Embassy Suites Minneapolis Airport. Free shuttles from the airport and to the mall will be available. And, the MSP International Airport is a very easy airport to reach.

Along with the mall itself, those with families might consider the nearby Waterpark of America as a reason to bring some kids along.

We do promise to keep everybody warm!

More details to follow -- But, we want you all to hold the dates and plan to be with us for Winter Working Meeting 2008!

Friday, August 10, 2007

Program: Net Neutrality--The Great US and Global Debate--What it is About and Why Your Clients Should Care

Hank Judy and Tom Laudise, co-chairs of the Internet Law Subcommittee, gathered a first-class panel of speakers for the Net Neutrality program held on Friday morning at the 2007 Annual Meeting. The program was sponsored by the Business Section Technology Committee, and co-sponsored by the Cyberspace Committee and the Section of Science and Technology.

Greg Luib from the FTC first gave a helpful overview of the debate, which does require some technological background to follow and he gave it the yeoman's effort to teach a bunch of lawyers how routers work. My own common sense suggests that trying to summarize that description is unwise, particularly since one of Greg's points was that

Then, the debate began. Examples on one side -- Imagine you placed a phone call to reach your local pizza joint, and the phone company suggests that instead of your choice of pizza it might be nicer if you tried their chosen pizza provider, but if you really want to talk to your original joint please hold for three minutes (while others are already placing their orders for hot juicy pizzas from the preferred pizza provider, or PPP). The stronger statements were along the lines of "Don't break the Internet." The argument is that by ensuring that even the smallest of new content provider can get access to the Internet consumer, we can have a chance to allow a garage company of today to become an important player, be it by financial success to become the next Google, or be it by having an ability to reach people it couldn't otherwise reach through traditional media or means of communication.

On the other side of the debate, it was suggested that it is over-reacting to enter into regulation prior to knowing if there is a harm to be resolved, as well as questioning if consumers are being harmed in any of the discussed scenarios. "Balancing the risks is a complex empirical question." Another primary argument is that the ability to add new networks, and create further competition, is a better way to resolve the problem rather than to regulate those networks that already exist. The economic arguments often followed a line that regulating today may lead to results we cannot anticipate. Quoting panelist Michael Katz from an article he recently published, "Public policy should intervene where anti-competitive actions can be identified and the cure will not be worse than the disease. Policymakers must tread carefully, however, because it can be difficult, if not impossible, to determine in advance whether a particular practice promotes or harms competition."

Many speakers cited to a recent report issued through the Federal Trade Commission, a copy of which is found here. In the end, the executive summary of the FTC's report followed the 'caution' model: "In evaluating whether new proscriptions are necessary, we advise proceeding with caution before enacting broad, ex ante restrictions in an unsettled, dynamic environment."

The committee thanks participants on the panel -- Michael Katz, professor of economics at the University of California at Berkeley, David Sohn from the Center for Democracy and Technology, Gail Levine from Verizon, and Markham Erickson representing a group of content providers through his firm Holch & Erickson.

Thursday, August 02, 2007

Minneapolis Disaster

Many of you in our committee have been calling around looking for news about fellow members and friends who live here in Minneapolis in light of the bridge disaster.

I've already heard from a number of members based here in the Twin Cities. I've heard nothing to this moment that suggests any of our members have been directly impacted by this event. Give me a ring or send an e-mail if you've got any particular questions or concerns.