The Ethics of Online Marketing

January 8, 2014 Administrator Leave a comment Ethics

Florida allows competitive keyword advertising by lawyers (Eric Goldman on Forbes, 18 Dec 2013) – In March, the Florida State Bar’s Standing Committee on Advertising proposed an ethics opinion (Proposed Advisory Opinion A-12-1). The opinion was designed to help Florida lawyers understand what they could ethically do with online marketing. It targeted a melange of now-outdated search engine optimization (SEO) practices, such as hidden text and keyword metatags. It also restricted competitive keyword advertising-“[l]awyers may not purchase the name of another lawyer or law firm as a key word in search engines”-even though it’s becoming increasingly clear over the years that such competitive keyword advertising purchases are legal and legitimate (see, e.g., Habush v. Cannon ). Rather than enlighten attorneys about their ethical obligations, this proposal was both hopelessly antiquated and potentially detrimental to legitimate competition. Normally, a proposal like this get rubber-stamped through a state bar’s review process, so its approval seemed inevitable. Nevertheless, working with two law professors in Florida, Faye Jones and Lyrissa Lidsky , and my student research assistant, Jake McGowan, we submitted comments opposing the proposal . My prior blog post . I also made two telephonic appearances before one of the reviewing bodies, the Board Review Committee on Professional Ethics (the BRC), and Google submitted comments as well. Last week, in a surprising development, the BRC rejected the proposal (voting 6-2), and the Florida Bar’s Board of Governors-the ultimate decision-maker-accepted that conclusion (voting 23-18). As a result, the Standing Committee on Advertising’s proposed opinion is dead. The Florida Bar’s Ethics Counsel explained that the BRC: is of the opinion that the purchase of ad words is permissible as long as the resulting sponsored links clearly are advertising, and because meta tags and hidden text are outdated forms of web optimization that can be dealt with via existing rules prohibiting misleading forms of advertising. Still, much work remains. North Carolina has a similar ban on lawyers’ competitive keyword advertising that was quietly enacted last year ( 2010 Formal Ethics Opinion 14 ). I’ll be tackling that next. And Florida has plenty of other ill-advised restrictions on Internet marketing by lawyers, such as restrictions on lawyers making “garden-variety” descriptions of their practices on blogs and websites (see the complaint ) and letting LinkedIn members endorse the lawyer for “skills and expertise” (although at the same Board of Governors’ meeting, that position was reversed and sent for further study).

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Image courtesy of FreeDigitalPhotos.net/Stuart Miles.

Reconsidering Resale Royalties

January 7, 2014 Administrator Leave a comment Copyright

Copyright Office calls for congress to reconsider royalties for artists (NYT, 16 Dec 2013) – The last time the United States Copyright Office examined the issue of whether visual artists should receive a share of the profits when their work is resold, in 1992, it concluded that resale royalties – known internationally by the French term droit de suite – were not a good idea. Now, after a recent re-examination of the issue, the Copyright Office has reversed itself. In a report issued Friday, it recommended that painters, illustrators, sculptors, photographers and the like deserve a royalty when their work is resold at a profit. Acknowledging that the current system leaves visual artists at a practical disadvantage relative to other creators such as writers or composers, the office urged Congress to “consider ways to rectify the problem” and give artists a financial interest in the future sale of their work. The office noted that in the past two decades, resale royalties have become more common around the globe, with more than 70 countries adopting some version of the droit de suite rule. A bill to institute a resale royalty was introduced in 2011 by New York Representative Jerrold Nadler, but it failed to gain support. Mr. Nadler is supporting a revised version of his bill, named the Equity for Visual Artists Act. The only state to have a resale royalty law was California, but in 2012, a federal judge struck down the law as unconstitutional.

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Image courtesy of FreeDigitalPhotos.net/Grant Cochrane.

NSA Fallout- An Economic Perspective

January 6, 2014 Administrator Leave a comment Economy

The foreign policy essay: Cheng Li and Ryan McElveen on “NSA revelations have irreparably hurt US corporations in China” (Lawfare, 8 Dec 2013) – Lawfare readers have followed and discussed the Snowden revelations with a mixture of dread and excitement. Our focus, understandably, is on the impact of the leaks on the intelligence community and on U.S. national security policy. The seemingly endless disclosures and associated news stories, along with the many declassified documents from the ODNI, have sparked discussions on technological change, government accountability and oversight, FISA reform, and other important issues. For many Americans, however, the bigger problem is the leaks’ impact on the U.S. economy and on American businesses-many of whom do business overseas. European allies may eventually shrug off their frustrations with the NSA, but my Brookings colleagues Cheng Li and Ryan McElveen argue that China is far less likely to do so. The revelations are leading to a policy shift that may hinder U.S. technology firms in China for years or even decades. Cheng Li is director of research and a senior fellow at the John L. Thornton China Center in the Foreign Policy program at Brookings, and is a director of the National Committee on U.S.-China Relations. Ryan McElveen is a research assistant at the Thornton Center.

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Image courtesy of FreeDigitalPhotos.net/Keattikorn.

Livestreaming the 9th Circuit

January 3, 2014 Administrator Leave a comment Tech

9th Circuit to provide live Internet coverage of en banc oral arguments (ABA Journal, 4 Dec 2013) – In what is believed to be the first such effort by a federal appeals court, the 9th U.S. Circuit Court of Appeals will launch live streaming Internet coverage of its en banc oral arguments in San Francisco on Monday. “The 9th Circuit has a long history of using advances in technology to make the court more accessible and transparent,” said Chief Judge Alex Kozinski said in a written statement provided to Courthouse News . “Video streaming is a way to open the court’s doors even wider so that more people can see and hear what transpires in the courtroom, particularly in regard to some of our most important cases.” A page on the court’s website provides further details.

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Image courtesy of FreeDigitalPhotos.net/Kookkai_nak.

Social Media Raises More 1st Amendment Questions in Court

December 28, 2013 Administrator Leave a comment Justice

Fear of juror Googling didn’t justify order to remove pages from lawyer website, appeals court says (ABA Journal, 4 Nov 2013) – A judge violated a lawyer’s First Amendment rights when he ordered the lawyer to take down references to asbestos wins on her website during a 2011 trial on similar issues, a California appeals court has ruled. The Second District Court of Appeal ruled on behalf of lawyer Simona Farrise last week, the Recorder reports. The order was a prior restraint on speech that violated the U.S. and California constitutions, according to the decision (PDF) by the California Second District Court of Appeal. The trial judge, Thomas Anderle of Santa Barbara County, had ordered Farrise to remove two pages from her website touting victories in asbestos cases against Ford Motor Co., one of the automaker defendants in the suit being tried before Anderle. The plaintiffs, Richard and Christie Steiner, had claimed asbestos exposure from Richard’s Steiner’s work on automobiles contributed to his lung cancer. One Web page subject to the order touted a $1.6 million verdict against Ford and others. The write-up asserted that “at least one jury managed to successfully navigate defendants’ courtroom confusion and find these companies at fault.” The other Web page, also ordered removed, described a $4.35 million verdict against Ford. Volkswagen Group of America had sought removal of the Web pages, citing the possibility that a juror would find it, and Ford Motor Co. joined in the motion. Anderle granted the request, though he also told jurors they could not Google the lawyers and could not conduct independent research. Jury instructions, coupled with the possibility of contempt for those who disobey, is the proper way to handle the issue, the appeals court said.

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Image courtesy of FreeDigitalPhotos.net/KROMKRATHOG.

Creative Commons’ New Features

December 26, 2013 Administrator Leave a comment Copyright

Creative Commons next generation licenses — Welcome version 4.0! (Creative Commons, 25 Nov 2013) – We proudly introduce our 4.0 licenses, now available for adoption worldwide. The 4.0 licenses — more than two years in the making — are the most global, legally robust licenses produced by CC to date. We have incorporated dozens of improvements that make sharing and reusing CC-licensed materials easier and more dependable than ever before. The 4.0 licenses are extremely well-suited for use by governments and publishers of public sector information and other data, especially for those in the European Union. This is due to the expansion in license scope, which now covers sui generis database rights that exist there and in a handful of other countries. Among other exciting new features are improved readability and organization, common-sense attribution, and a new mechanism that allows those who violate the license inadvertently to regain their rights automatically if the violation is corrected in a timely manner. You can find highlights of the most significant improvements on our website, track the course of the public discussion and evolution of the license drafts on the 4.0 wiki page, and view a recap of the central policy decisions made over the course of the versioning process.

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Image courtesy of FreeDigitalPhotos.net/lamnee.