Nature Authors “Waive” Goodbye To Moral Rights

Nature publishing group requires faculty authors to waive ‘moral rights’ (Chronicle of Higher Ed, 31 March 2014) – Faculty authors who contract to write for the publisher of Nature, Scientific American, and many other journals should know that they could be signing away more than just the economic rights to their work, according to the director of the Office of Copyright and Scholarly Communication at Duke University. Kevin Smith, the Duke official, said he stumbled across a clause in the Nature Publishing Group’s license agreement last week that states that authors waive or agree not to assert “any and all moral rights they may now or in the future hold” related to their work. In the context of scholarly publishing, “moral rights” include the right of the author always to have his or her name associated with the work and the right to have the integrity of the work protected such that it is not changed in a way that could result in reputational harm. “In many countries, you can’t waive them as an author,” Mr. Smith said. “But in the Nature publishing agreement you are required to waive them, and if you are in a country where a waiver is not allowed, you have to assert in the contract you won’t insist on those rights.” Mr. Smith first questioned the details of the Nature Publishing Group’s license agreement on his blog on Thursday. Calling the moral-rights stipulation “bizarre” and an attack “on core academic values,” he wrote that in some countries authors are forbidden to waive those rights. “The United States is something of an outlier in that we do not have a formal recognition of moral rights in our copyright law, although we always assert that these values are protected by other laws,” he wrote. His comments were part of a longer post noting that the powerful scholarly publisher has apparently begun enforcing at Duke a requirement that authors at institutions with open-access policies secure waivers exempting their work from those policies.

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Target’s Derivative Lawsuit

A new “target” on their backs: Target’s officers and directors face derivative action arising out of data breach (Global Regulatory Enforcement Law Blog, 30 Jan 2014) – In the wake of its massive data breach, Target now faces a shareholder derivative lawsuit, filed January 29, 2014. The suit alleges that Target’s board members and directors breached their fiduciary duties to the company by ignoring warning signs that such a breach could occur, and misleading affected consumers about the scope of the breach after it occurred. Target already faces dozens of consumer class actions filed by those affected by the breach, putative class actions filed by banks, federal and state law enforcement investigations, and congressional inquiries. This derivative action alleges that Target’s board members and directors failed to comply with internal processes related to data security and “participated in the maintenance of inadequate cyber-security controls.” In addition, the suit alleges that Target was likely not in compliance with the Payment Card Industry’s (PCI) Data Security Standards for handling payment card information. The complaint goes on to allege that Target is damaged by having to expend significant resources to: investigate the breach, notify affected customers, provide credit monitoring to affected customers, cooperate with federal and state law enforcement agency investigations, and defend the multitude of class actions. The derivate action also alleges that Target has suffered significant reputational damage that has directly impacted the retailer’s revenue.

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Avvo Issues: When Online Reviews Go Bad

Lawyer accused of revealing TMI in response to bad Avvo review is reprimanded (ABA Journal, 21 Jan 2014) – A Chicago lawyer accused of disclosing confidential information about a client in response to his bad Avvo review has been reprimanded partly for the revelation. Employment lawyer Betty Tsamis “exceeded what was necessary to respond to [the client’s] accusations,” according to stipulated findings of fact. The Legal Profession Blog links to the joint stipulation and reprimand by the Hearing Board of the Illinois Attorney Registration and Disciplinary Commission. Tsamis also bounced a check to a client, partly because she failed to account for credit card fees charged to her client trust account, according to the stipulated facts. She made good on the check with money from her own funds. Tsamis’ Avvo revelation occurred as a result of a negative online review by an American Airlines flight attendant who hired Tsamis in an unsuccessful effort to secure unemployment benefits. The attendant had been fired for allegedly assaulting a co-worker. Tsamis asked the former client to remove his first review, posted in February 2013, and he responded that he would do so if Tsamis returned his files and the $1,500 he had paid in attorney fees. Avvo removed the post, spurring a second negative review by the former client. This time, Tsamis responded to the post and revealed confidential information about the case, according to the stipulated facts. The disciplinary complaint had alleged that Tsamis wrote this: “I dislike it very much when my clients lose, but I cannot invent positive facts for clients when they are not there. I feel badly for him, but his own actions in beating up a female co-worker are what caused the consequences he is now so upset about.” One of Tsamis’ lawyers has said he thinks the client was not identified by last name on the Avvo website when Tsamis responded to his criticism. In mitigation, Tsamis has already taken steps to improve her financial record-keeping, she has no prior disciplinary history, and she has expressed remorse for her conduct, the stipulated facts said. One of Tsamis’ lawyers, Kathryne Hayes, gave this statement to the ABA Journal: “While we believe that Ms. Tsamis’ conduct was within the [ethics rules], this matter raises an important issue for all lawyers-especially those who are active on attorney-review websites and have the opportunity to comment on client reviews posted to these types of websites.

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The Ethics of Online Marketing

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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Florida Tough on LinkedIn and Twitter Lawyers

Is Florida too tough on lawyers using LinkedIn and Twitter? Endorsements and short skirts targeted(ABA Journal, 30 Sept 2013) – Orlando lawyer Luis Gonzalez has no plans to block endorsements on LinkedIn, no matter what the new Florida ethics rules require. “I’m not changing a damn thing,” he tells the Daily Business Review . “I want the bar to come after me. I’m 61 years old, and I’m not going to tolerate garbage like that.” Gonzalez is one of several lawyers criticizing the state bar’s new social media rules, enacted as part of new rules on lawyer advertising approved in May by the Florida Supreme Court. Many law firms consider the rules regarding Facebook, Twitter and LinkedIn to be the toughest in the country, the story says. According to this summary(PDF), the guidelines require advertising lawyers to list their names and office addresses, bar misrepresentative testimonials and restrict the use of the words “specialist” and “expert,” as well as their variations. Lawyers on Twitter are concerned about the need to state an office location on each tweet, the story says. Lawyers on LinkedIn also are concerned about the need to ban third-party endorsements and to refrain from using the word “expertise.” For lawyers on Facebook there is another potential problem-the need to refrain from posting inappropriate or unprofessional photos and videos. Kathy Bible, advertising counsel for The Florida Bar, told the Daily Business Review that the bar is involved in two disciplinary probes regarding LinkedIn, but there are no probes of Twitter violations. She added she has privately talked to some lawyers about inappropriate Facebook photos. “One lawyer had pictures of his staff with skirts too short,” she told the Daily Business Review. “He kindly removed them when we asked.”

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