I write a bi-monthly column for the New York Law Journal's "Technology Today" feature. It sometimes gets picked up by one or more affiliated websites or publications. While the title is maybe a little too cute (I do have editors), here is "Tools and Tactics to Tweet Well on Twitter."
A recent Federal Circuit case highlights the contrast between claims of patent infringement and violation of the Lanham Act.
In Baden Sports, Inc. v. Molten USA, Inc., Baden Sports patented a padded basketball that it marketed as containing “cushion control technology.” It sued Molten USA in the Western District of Washington for patent infringement arising out of Molten’s sales of basketballs containing “dual-cushion technology.”
Baden later amended its complaint to add claims that Molten’s advertising of its dual-cushion basketballs violated Section 43 of the Lanham Act, in particular because Molten’s ads for its basketballs had used the terms “proprietary,” “exclusive,” and “innovative.” The district court granted Baden's motion for summary judgment on its patent infringement claims.
The district court dismissed Baden’s Section 43 claims relating to Molten’s use of “proprietary” and “exclusive” because those terms suggested that Molten had invented the technology and were precluded by the Supreme Court’s decision in Dastar Corp. v. Twentieth Century Fox Film Corp. It allowed the claims concerning Molten's use of the term “innovative” to go to trial, however, reasoning that it could relate to the “nature, characteristics, or qualities of the basketballs themselves.”
At trial, the jury found in Baden’s favor on the false advertising claim. It awarded Baden a relatively modest $38,031 for patent infringement and a whopping $8,054,579 for intentional false advertising. Molten moved for a JMOL and a new trial; both were denied.
Because this was a patent case, the Federal Circuit caught the appeal, but applied the law of the 9th Circuit on non-patent issues. It analyzed the Section 43(a) issues in two stages, and concluded that “Section 43(a) of the Lanham Act does not create liability from Molten’s advertisements because those advertisements do not concern the ‘origin of goods,’ to which section 43(a)(1)(A) is directed, nor do they concern the ‘nature, characteristics, [or] qualities’ of the goods, which is what Ninth Circuit law has interpreted Section 43(a)(1)(B) to address.”
The Federal Circuit pointed out that there was nothing in the record to show that Molten’s advertising suggested that Molten was not the source of the infringing basketballs that it was marketing. Accordingly, there was no claim under Section 43(a)(1)(A).
As for Molten’s claim that its basketballs were “innovative,” the Federal Circuit noted that “[n]o physical or functional attributes of the basketballs are implied by Molten’s advertisements. ‘Innovative’ only indicates, at most, that is manufacturer created something new, or that the product is new, irrespective of who created it.” Accordingly, there was no claim under Section 43(a)(1)(B) either.
The court noted that there were a number of other arguments that could have been advanced in support of Baden’s false advertising claims, but that the arguments had not been pursued at trial.
Takeaway: Be careful how you present Lanham Act claims arising out of patent infringement allegations. An patent infringer is not automatically liable for Lanham Act false advertising; such a finding will require its own set of carefully-developed proofs.
In what the ABA Journal characterizes as a "Fig Leaf" settlement, Jones Day and Blockshopper have settled the lawsuit that Jones Day brought when Blockshopper had the temerity to link to the bios of two Jones Day attorneys when it reported on (public) real estate transactions involving the two lawyers.
In the settlement, Blockshopper agrees that while it will not use any "Embedded Links" to the Jones Day website in the future, it may use "Deep Links" to the site. Blockshopper must also make some sort of statement indicating that the reference individual is employed by Jones Day, and that more information about the person can be obtained at http://www.jonesday.com/, adding the appropriate internal reference to the web address.
So what would formerly have read as follows:
Embedded (bad): Steve Brogan, Jones Day's managing partner, recruited me when I was a law student at Notre Dame.
Now must read thus:
Deep (good): Steve Brogan, who is employed by Jones Day as its managing partner, recruited me when I was a law student at Notre Dame. More information about Steve Brogan can be obtained at http://www.jonesday.com/sjbrogan/.
I have to admit that I hadn't heard of the term "fig leaf" settlement; I looked it up, but all I could find were other blogs and newsletters that referenced the Jones Day/Blockshopper case. Wikipedia, in addition to teaching me about a turn-of-the-last-century bodybuilder named Eugen Sandow who used to pose nude save for the protective covering of a fig leaf, provided some information that I think pretty much covers (pun intended) the settlement:
"The expression fig leaf has a perjorative metaphorical sense meaning a cover for any thing or behaviour that might be considered shameful, with the implication that the cover is only a token gesture and the truth is obvious to all who choose to see it."
This blog is nominally devoted to IP and Technology law, but anyone who knows me well has had to put up with my frequent rants over the increasingly-intrusive nature of our government’s efforts to secure our country against future attacks of the type we endured in September 2001.
My views are that much of what passes for security is nonsense, or “security theater.” (Yes, I read and like much of what Bruce Schneier has to say on security measures, but I’m not going to presume that he would agree with anything I might do with that information.) Efforts such as random bag checks and heavily-armored patrols in subways, virtual strip-searching and shoe-scanning by TSA personnel in airports, attempted bans on photographing plainly-visible infrastructure such as bridges and trains, and mass information capture and data mining by the NSA do little to help make us more secure, but much to erode our individual Constitutional rights.
One thing I understand is that many of these efforts have been justified as evils that are necessary in our continuing War on Terror. I also understand that many, many people are satisfied with that explanation, and are willing to part with a little bit of their liberty in exchange for feeling a little bit safer. That willingness implies as well that many, many people trust our government to do the right thing, and not to abuse its power even as it intrudes further into our personal lives. For more that seven years, people have been conditioned to leave much of their personal security, and some of their personal rights, freedom, and information, in our government’s hands.
Two columns in today’s New York Times about our current economic crisis have caused me to wonder whether the government’s increasingly-intrusive security measures on behalf of the War on Terror may have contributed to the crisis of confidence that a number of commentators seem to believe is at the root of this recession.
Now I am not an economist, and frankly am a bit mystified (if not terrified) at the strongly-held, often completely divergent solutions economists of differing ideological stripes are advocating as “the way” to pull us out of this recession. But if there is a common theme that runs through any of the pieces I’ve read, it’s that nothing positive is going to happen until consumers begin to believe in whatever solution is implemented, open their wallets, and begin spending again.
In “The Worst-Case Scenario,” David Brooks looks back from a hypothetical future and analyzes what made the recovery efforts fail:
“The crisis was labeled an economic crisis, but it was really a psychological crisis. . . . Essentially, Americans had migrated from one society to another – from a society of high trust to a society of low trust, from a society of optimisim to a society of foreboding, from a society in which certain financial habits applied to a society in which they did not.”
Did that social migration begin with the September 2001 attacks? Just look at how we reacted: after a brief period of collective patriotism, mourning, and general flailing about, we settled in to a steady state of government-sponsored security warnings, threat-levels, illegal surveillance, and all manner of terror-driven searches and seizures. We started and have continued two wars, and have interred and detained thousands of people in the furtherance of the War on Terror. Against all of that, how could we not have moved from a “society of high trust to a society of low trust,” and become a “society of foreboding?”
Our government has repeatedly justified its efforts as necessary, if perhaps unpleasant, if we wanted to defeat our widely-dispersed enemies and assure our national security. We were asked to trust that the little intrusions as well as major incursions were in our collective self-interest. And the economy? Well, that was the least of our worries, of course. The economy was humming along more or less nicely, and could pretty much take care of itself. Those pesky terrorists, on the other hand . . . that’s where our attention should be focused.
So while we were waging this War on Terror, the economy didn’t take care of itself. In fact, it turned out that nobody had really been minding the store, and here we are scrambling. Who could blame consumers for their current lack of trust? Consumers had been set up.
Moving across the Times’s editorial page, Paul Krugman in “Failure to Rise” says that he has “a sick feeling in the pit of my stomach – a feeling that America just isn’t rising to the greatest economic challenge in 70 years. The best may not lack conviction, but they seem willing to settle for half-measures. And the worst are, as ever, full of passionate intensity, oblivious to the grotesque failure of their doctrine in practice.”
Layer that statement over the way that we responded following the September 2001 attacks. We didn’t rise to that challenge either. Instead of embracing the principles of freedom and liberty that built this country and made it great, we showed a lack of conviction. We chose safety and security over our rights and liberties; we settled for the illusion of protection as a band-aid applied over the government-induced wound of a potential future terror attack. We forgot that with freedom comes responsibility and risk; we were unwilling to assume the risk, and preferred instead to yield our freedom. We settled, and got used to doing so. And we may be doing so again.
This was essentially a panel on starting and maintaining a blog. It was well-run, spirited, and informative – even for existing bloggers. Moderator Maia Benson kept the five-person panel on-topic, asking key questions, allowing a reasonable amount of discussion, and moving things along to the next point.
Starting from the beginning, the panel discussed their reasons for blogging and why they selected their particular blogging platform. There are a number of different blogging platforms – Blogger, Wordpress, and MoveableType are several popular ones. For a survey article discussing popular blog platforms, check here.
The panelists each agreed that their blogs consumed more time than they initially thought they would. The general consensus among individual bloggers was that their blogs consumed more than an hour a day on average. Two of the blogs were law firm projects, with teams of attorneys assigned to creating content and editing posts.
The next point was what the panelists considered the value of their blogs to be.
Roland Goss pointed out that the question of value was more properly stated as “value to whom?” His view was that blog value in the firm context can sometimes be a hard sell. Blogs have a connotation to some people as being a loose form of communications. While it is difficult to measure client generations as a result of a blog, his point was that institutional clients are looking for their law firms to provide them value. If you are trying to reach that audience, your blog should target their perceived needs. If you do a good job of identifing your audience, you’ll hit the mark.
In the case of the Jorden Burt firm, when Goss was considering developing a blog, he noted that there did not appear to be a one-stop place for information on reinsurance arbitration. So he built one. In the course of running the blog, analytical tools helped him see that readers were gravitating to law review articles on insurance and reinsurance, so he made that more prominent and easy to find. It helps for people to know that you have timely and deep knowledge in your area.
The next question focused on audience; who is your audience? What value are you trying to give?
Rees Morrison, in a bit of a tangent, made a strong argument on several points: make your header clear; keep your posts “short and sweet;” identify your sources; and back-reference your content. While not strictly responsive to the question, they were good points and are worth keeping in mind.
Brian Green pointed out one dilemma that his firm’s blog faced: whether to write about news developments that affected the client’s industry. He noted that the audience was reading those news posts, so the coverage shifted slightly to include the news. (I will note that Brian and I each work for the same firm, but I have no involvement in the operation of the blog.)
David Gottlieb’s audience consists of attorneys he sees in court. He finds that their feedback is helpful. In addition to legal posts, he includes more personal, perhaps somewhat off-topic posts such as family pictures and workplace commentary – one of his more popular posts was a seating chart showing where the “regulars” tended to sit in one of the courtrooms he frequents. This point echoes one raised in Tuesday’s Twitter panel – to develop a relationship with your readers don’t make your posts completely business. Inject some personality into your blog. (This obviously makes more sense with individually-authored blogs than group or firm efforts, though there is no reason why a firm blog could not include the occasional personal note as well.)
Roy Mura said that he believes that he as several categories of readers, ranging from individual clients to “everyone.”
The next question asked what kinds of feedback or anecdotes the panelists were hearing as a result of the their blogs.
David Gottlieb said that almost everyone who practices in his area reads it, including judges, clerks, and other attorneys. He noted, as a result, that this meant that he had some control over what that audience saw. He warned against using the blog as an advertisement. The goal is to provide value.
Roy Mura could count one discrete matter resulting from his blog.
Roland Goss pointed out that blogs aren’t only about getting new clients. He believes that his firm’s blog provides a lot of value as a cross-selling tool, a good way to show existing clients in other areas what else you can do. The blog is also a good way to increase the knowledge base of your attorney writers – a point that applies both to team-written blogs and single-author efforts.
Rees Morrison pointed out that an active blog is a good resource for creating articles. It becomes easy to put together an article on a particular topic by combinging and editing related blog posts. The topic then turned to metrics – how the bloggers used various tools to learn more about their audience. Rees Morrison jumped up and ran through a nice set of screens that identified some of the tools he uses to help him with his blogs. These include:
SiteMeter – details re: every visit, can drill down to individual visitor
TypePad – gives some stats for its blogs. Also gives you what search led to view.
Feedburner – tells you how many RSS subscribers you have, how many came directly, how many from searches, how many from another site.
Technorati – how many other blogs are referring to you – find out who is writing about you.
Roy Mura said that he uses Feedblitz for subscriptions – a vehicle by which readers can subscribe and get an email summary to new posts. Monday night to Tuesday morning is when most people seem to read.
Maia Benson recommended putting a phone number on your blog because it’s tracked. If someone calls you because of the blog, you’ll know it.
One set of concerns – and an area of polite difference – related to whether blogs should accommodate comments.
Brian Green said that his blog does not allow comments because of concerns regarding attorney-client relationships and inadvertent disclosure of confidential information. In the event a dialog takes place, there is a concern that the give-and-take will lead to an inadvertent attorney-client relationship.
Roland Goss’s firm’s blog also does not accept comments, for same reasons. As a firm-authored blog, he pointed out that not having to deal with comments also helps reduce the time associated with managing the blog.
Roy Mura’s blog originally accepted comments without requiring each comment to be moderated. He said that he thought that comments would be an academic exercise, until a completely unacceptable comment was psoted. He now moderates comments, as do David Gottlieb and Rees Morrison.
This panel provided a great overview of issues related to starting and maintaining blogs. It was an extremely worthwhile presentation, and I’m afraid that this post does not do it justice.
The best thing about this panel was its moderator, Bob Ambrogi, who made several polite but ultimately unsuccessful attempts to steer the panelists somewhere in the vicinity of their panel's promised subject matter.
Here is what was promised in the LegalTech brochure:
- Opportunities in online networking for attorneys
- Re-energize the traditional, valuable art of networking with tightened budgets, time and resources
- Growth areas, benefits and challenges of online networking
- Best practices on selecting a network
- Gaining the strategic advantage of an online network
Here is what was delivered:
- Martindale-Hubbell Connected, a "gated community" attorney networking system currently in private beta, with features that are yet to be finalized, is going to be the best way ever for private practice lawyers to network and for in-house counsel to get free information.
- Other kinds of networking - the ones where you aren't in a "gated community," apparently - present all sorts of dangers to lawyers, who might inadvertently disclose confidential client information or create surprise attorney-client relationships as a result of said networking.
I had the "if you can't say anything nice, then don't say anything at all" refrain drilled into me as a child, so I won't post the names of the panelists here.
This was an information-packed session presented by Mary Abraham (lawyer and “knowledge manager”) and Lee Bryant (director at Headshift, London). The focus of this presentation was on tools used within the enterprise.
The presentation began on an ironic note – with a wifi signal freely available, no password codes were available for those hoping to live blog. This was not an auspicious start for the first of a set of three presentations focusing on “Web 2.0 Technology.” That said, once the presentation was underway, passwords were distributed to those who were blogging. That said, I couldn’t get my connection going. Perhaps I digress (but please, in the future give all LegalTech conference attendees a strong, free Wifi signal.)
If this session suffered from anything it was information overload. I was very impressed with both panelists; they kept things moving quickly, and each had a lot of information to share. Some of the points they made follow.
-- Web 2.0 makes sense in a downturn
The recession provides perfect conditions to move forward with these tools and strategies. We have to demonstrate value quickly; but that doesn’t mean a retreat into existing projects or a failure to start new projects. Adding a “social layer” to existing enterprise tools can rejuvinate old, unloved systems. Existing systems can do the heavy lifting well – the data management. What they don’t do too well is the last mile – connecting the information and the users. The new tools should build on the existing systems.
-- There are several levels of collaboration tools. These were presented in the form of a “social stack”:
-- at the base level, these consist of public feeds and flows; RSS feeds, and email;
-- the next level includes bookmarks and tags that create “signals of relevance” for users to share and comment. Clay Shirkey talks about information overload; bookmarks and tags help users filter information for each other.
-- the third level includes blogs and networks, with items or topics shared within networks or discussed in blogs. This information can come from the bookmarks and tags. Professional bloggers typically self-filter this information; they will take in many news feeds, tagging some of them (for later review, in my experience), and then will blog about a lesser number. (Consider the “old” way of doing this, where someone in the firm would circulate an email with some piece of relevant information).
-- the fourth level involves group collaboration – groups or teams that organize knowledge in wikis and group systems, with features such as reviews and voting. The hard part here is getting things started, getting that first draft down. This is becoming popular, with in-firm wikis being managed within groups or subgroups of firms.
Michael Idinopolous says that it’s best to leave knowledge workers “in the flow” of the information to make it easier for them to share useful information. We shouldn’t workers to step “out of the flow” if we want them to share. Our systems should try to make it easy for people to share, and to see what’s been shared. Asking people to share day-to-day just for the heck of it is not going to work.
-- the fifth level: personal tools allow people to organize their own information by tags, or a portal, or a newsreader (for example).
(I wonder whether the fourth and fifth levels should switch places. It seems to me that group collaboration is some higher order byproduct of the use of Web 2.0 tools, sort of the ultimate goal here, the most focused result of the use of the other tools.)
There are many tools available for this. Reading, writing, collaborating, messaging, sharing, and some all-in-one.
-- How to make the business case.
The fact that the tools are relatively cheap and easy to roll out make it easier to sell. They can replace expensive systems (for example, the typical “intranet project” or CRM tool can sometimes be replaced with cheaper, more effective tools).
The key is to select the right tools – many of which are open source. Mallesons in Sydney is an example of a firm that has done very interesting things using social networking tools. There were failures, but they used cheap tools, rolled them out quickly, integrated user feedback, and worked fast.
-- Some examples are as follows:
-- Internal wikis allow multiple users to view, comment, and modify the same document: using something called “Confluences” – seeing hundreds of edits a day to wikis, 1000 page views.
-- Social tools are not about personal blogs, what you’ve had for lunch, etc. Often a group blog is adopted. Freshfields has adopted groups of wikis; only certain people have permission to edit. Trusted editors are a premise behind much social software. You have to trust people to act in a responsible manner. Many existing systems are built on a platform of distrust.
Lawyers don’t seem to be so worried about sharing knowledge; it’s more like projecting ego. It does depend on the context – internal sharing is going to see much more sharing than external.
There was additional discussion of some of the tools available to help implement these projects. Frankly, this moved a bit quickly for my notes. Suffice to say there are more than a few layers of collaboration tools available to those seeking to increase the level of internal collaboration. This was an excellent session, with more information presented than your humble narrator was able to repeat. My takeaway point: it is past time to begin thinking about ways to manage information flow. The technology is now at the point where it is feasible to start implementing some of those “gee, wouldn’t it be nice if . . .” projects from the past.
I attended an excellent LegalTech panel discussion yesterday titled “What is Twitter and How Can I Use it?” Bob Ambrogi introduced the panel (each introduction done in 140 characters or less), which consisted of Kevin O’Keefe (@kevinokeefe), Matthew W. Homann (@matthoman), Chris Winfield (@chriswinfield), and Monica Bay (@commonscold).
Monica, who is the editor-in-chief of Law Technology News, moderated the panel and opened by noting that she was a very reluctant social networker who finally gave up (particularly when she took the post at Law Technology News), and was instantly hooked. She is actively participating on a number of social networking sites, and has three Twitter accounts. She offered an example of using Twitter to troll for story pitches for her publication, and was impressed with how quickly she received substantive proposals from contributors.
Chris Winfield, president of 10e20, a social media marketing consultancy, spoke next. He provided a thorough overview of what Twitter is, starting with the signup page and moving through the various user features that the basic Twitter site offers.
He noted that Twitter is essentially a communications tool – it’s about talking and communicating. I think that this is a great point that is sometimes lost in the back-and-forth questioning of what Twitter is. Just as the telephone can be used to deliver messages ranging from the most trivial to the most important, so can Twitter. It’s up to the user to decide whether and how to use Twitter.
Chris highlighted Twitter’s search function – which has improved over the past couple of months – to highlight how flexible it is. Users can search for specific terms within tweets, or for specific user names.
As a demonstration of Twitter’s utility, Chris showed how he used it to help him create his presentation. A few days before the panel discussion, he tweeted three questions for the presentation and in short order received 135 responses, saving him a lot of work. The questions, and my favorite responses, follow:
- How would you explain Twitter in 140 characters or less? “A social conversation tool that allows people to connect within communities.”
- How could a lawyer or someone in the legal field use Twitter effectively? Answers included using it for education; to answer client or potential client questions; for personal branding; to help with relationship building; to interact with a community; to make connections, to keep up with people in a particular field or industry; to gain insight by using polls.
Matt Homann is the founder of LexThink LLC and writes the [non]billable hour blog. His experience with Twitter is similar to mine, in that he had been on Twitter for a couple of years, but only started using it regularly during last 6 months. He made the following excellent points about the Twitter tool:
- Twitter is easy to learn to use.
- It can be hard to understand why Twitter should be used– why do I want to follow people, why would they follow me?
- Twitter is a “kool-aid technology;” once you get it, you can’t stop telling other people about it.
- Twitter’s greatest value comes from knowing what people are thinking (not what they’re doing). It’s a form of “instant anthropology,” allowing you to plug in to what people are discussing all over the world. He highlighted the “Trending Topics” posted on the Twitter search page as an indication of what Twitter users were talking about at any given point in time. This can provide Twitter users with faster news, particularly about breaking stories.
- To effectively use Twitter in a work context, it’s important to be yourself. Use your name, or your company’s name, if you want to build relationships.
- If you fear that Twitter will interfere with your ability to get your work done, you’re not afraid of Twitter, you’re afraid of doing your work. He made an excellent point that you don’t have to use Twitter all the time, but can “dip in” to the Twitter “stream” whenever you have the time to do so. This makes most sense when you use enhanced search tools such as those available on Tweetdeck that allow you to view multiple search results on one screen.
- To use Twitter most effectively, you should integrate it with you phone. This doesn’t necessarily mean tweeting from your phone; it means bridging the gap between communicating with people via Twitter and then picking up the phone and calling them in person. This is the best way to use Twitter to build client and personal relationships. The successful Twitter user is one who turn Twitter friends into real-life friends.
- Matt described Twitter as being like a networking meeting on steroids – though the conversation’s better and there’s a lot fewer insurance salesmen in the room. From my perspective, the unfiltered feeds can sometimes resemble an Internet chat room, with multiple cross-conversations going on simultaneously. This is why effective use of search tools is so important.
- Finally, Matt noted that the number of followers you have is far less important than the number of followers you deserve. You should always work to deserve more, by contributing to the conversation and building your community.
Kevin O’Keefe is the CEO of LexBlog, Inc., and the author of Real Lawyers Have Blogs. His points were as follows:
- From a big picture perspective, Twitter is a great tool, but sometimes dangerous.
- Kevin provided a number of examples of ways that he could trace new business to his use of Twitter. What I liked about these examples is that they each involved a personal tweet – a comment about a ball game, or a poll-type question about whether a golfer was going to make a putt – that connected with a client or potential client and generated a follow-up. The takeaway from this – and it was a point that Matt raised as well – is that at least some of your tweets should reflect your personality.
- Kevin firmly believes that social media, such as Twitter, is more important than maximizing the hits on your blog or website. Twitter is a tool that allows your message to spread not only to those who follow you directly, but virally as well. People who re-tweet messages help spread your word beyond your immediate network.
- Twitter is not a kids’ tool; its demographics are strong. There are a lot of well-educated, forward-thinking adults using Twitter.
- In Kevin’s personal experience, nothing has had the impact on his company LexBlog quite like Twitter. He’s seen this happen just in past six months. He quoted Guy Kawasaki: Twitter is the single biggest branding tool since TV. Kevin is convinced that Twitter is here to stay.
- He suggests using Twitter to discover people you’d like to get to know and would like to have a conversation with.
- Kevin tweets things that his target audience is interested in; he tries to make his tweets relevant to his target audience, and includes some personal items (within reason).
- He pointed out how his company is helping law firms use Twitter to develop micro-blogging site pages that show what firm lawyers are doing or have to say on a particular topic.
There were a number of questions after the presentations; one that stuck with me was about fair use copyright issues. Presumably this relates to re-tweeting of tweets. My immediate take on this is that one of the things you consent to when you submit a tweet via Twitter is to the re-tweeting of that tweet. While I could see there being an issue if someone were to aggregate multiple tweets in a book or article. I’ve commented on this in the blog post context elsewhere.
1. Take advantage of Twitter's search features, particularly those available on Tweetdeck, to receive up-to-date news and information on topics that matter to you from people all over the world.
2. Contribute some of your personality to your tweets. Don't be a corporate drone all the time; occasionally reveal your interests and show that you are a real person.
3. Twitter relationships are a start. It's up to you to take them to the next level.