Archive for the ‘about this blog’ Category

Blog Law Blog Has Never Cooperated with NSA’s Special Source Operations

Thursday, June 6th, 2013

Well, it’s been a busy day for cybernews.

The Washington Post has broken a huge story that the U.S. government, specifically the NSA and the FBI, are accessing e-mails, photos, videos, and other personal data via its “Special Source Operations” – NSA talk for buddy-bud tech companies. The cooperators in this outed “PRISM” program are, according to the Post story, “nine leading U.S. Internet companies”: Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube, and Apple.

(Hey, good for AOL getting lumped into the category of “leading U.S. Internet companies.” No doubt they were super-psyched to see that.)

Well, for my part, I can state unequivocally that Blog Law Blog has never cooperated with the NSA or FBI in sharing any data. (But I do use Google Analytics, as do bazillions of others – so be warned.)

In the same news cycle comes the revelation that Chinese government hacking into private American computer systems is far wider and deeper than previously known. They even hacked the 2008 Obama and McCain presidential campaigns.

Unfortunately, I can make no guarantees that Blog Law Blog has not been hacked by the Chinese government. The only real protection I have against being hacked by China is staying below their radar. Which I’m guessing I probably have. (Although I’ve certainly discussed how China is a leading jailer of bloggers, among other things.)

Hey, by the way, did you notice who is missing from that Special Source Operations list? Yup, no Twitter. Good for Twitter. They’ve certainly shown their user-privacy backbone before. And no Amazon or eBay either.

The New Blawg 100

Thursday, December 20th, 2012

ABA Journal December 2012 coverThe ABA’s 2012 Blawg 100 is out, and, though Blog Law Blog made the list last year, this year it was not to be.

But plenty of great blogs are on the list. And through tomorrow, you can vote for the readers’ choice favorites by going to the page.

You really, actually, should vote. Why? Extremely low voter turnout is making this one election where you can really make a difference. Did your vote for president last month really matter? But your vote here might literally make the difference. Blogs that are really crushing it might have a couple hundred votes. Meanwhile, there are super-deserving blogs just barely in the double-digits. So vote!

Here’s Blog Law Blog’s suggestions for who deserves your ballot, and who’ve already gotten mine:

  • Technology & Marketing Law Blog by Eric Goldman and Venkat Balasubramani. This is the best blog out there closest to the subject matter covered on Blog Law Blog. And maybe the only honor better than Blog Law Blog’s making the Blawg 100 last year was that the description included a quote from Eric G. himself with a complement. So vote for T&M Law Blog.
  • The Volokh Conspiracy by Eugene Volokh and others. This is an old-line prestige blog, dating all the way back to January 4, 2004. It’s still one of the best.
  • SCOTUSblog. I agree with the fan quoted in the ABA Journal who called SCOTUSblog “extraordinary.” But I’ve got to strongly disagree as that admirer goes on to say SCOTUSblog “sets the gold standard to which all blawgs should aspire.” That’s insane. For most bloggers, aspiring to do what SCOTUSblog does would just make you go crazy. Not even aspiring, but just thinking about aspiring makes me exhausted.
  • 43(B)log by Rebecca Tushnet. Rebecca’s prolificness also exhausts me – maybe even more so than SCOTUSblog, since Rebecca’s blog is a solo effort. One of my favorite features is the play-by-play coverage of academic conferences. (And yes, her coverage goes well beyond Section 43(b) of the Lanham Act – banning importation trademark-infringing goods – but she does keep a germanely close eye on trademark law.
  • Wall Street Journal’s Law Blog. I’m getting the shout out to these folks despite their generic name. “Law Blog” is really uninspired and too close to “Blog Law Blog” for my taste. But this is still a great blog.

Also, vote for these Blawg 100 honorees from colleagues of mine at Texas Tech. They’re not on subjects close to Blog Law Blog’s usual fare, but they are great blogs nonetheless:

Introducing Contributing Blogger John S. Merculief II

Tuesday, September 25th, 2012

John C Merculief II self-portrait in automobile windowI’m tremendously excited to introduce Blog Law Blog’s first contributor, John S. Merculief II.

John is a second-year student at the Texas Tech University School of Law, where I am currently a visiting professor. He put up his first post last week.

A veteran journalist, John worked in newspapers for over a decade, including a tour of Texas dailies in San Angelo, Abilene, and the Houston area. He got into reporting after getting a bachelor’s in liberal arts from the University of Texas at Austin and a master’s degree in newspaper journalism from the renowned program at Syracuse University.

As a journalist-turned-budding-lawyer, it’s no surprise that John has a particular interest in media law. That will be extremely helpful for Blog Law Blog blogging. And as a bonus, he also happens to have an interest in municipal law. Regular readers know that that will definitely be a plus as we see more and more and moooooooooooore blog law scuffles involving local government officials.

Tomorrow, John returns with a post about what happens when you mix blogging, bad-mouthing, and bar-tending!

Bloggers’ Blog Law Summit in Grand Forks!

Wednesday, June 20th, 2012

cell phone picture of Eric E Johnson and Eric P Robinson

Me and Eric P. Robinson

Yesterday I was thrilled to hear from Eric P. Robinson, who happened to be in Grand Forks, North Dakota as he was meandering cross-country from Reno, Nevada to New York.

It’s not often we get visitors up here in Grand Forks. It’s even less often that we get visitors who blog about the law of blogging. Actually, Eric writes the only other blog out there, so far as I know, that is focused primarily on blog law: Blog Law Online. So, I’m grandiosely calling our meeting over coffee a “summit.”

Speaking of Blog Law Online, I definitely recommend Eric’s recent post on the Sixth CIrcuit’s decision in the Jones v. case which includes a concise explanation of the factual and legal context of what may turn out to be an important precedent-setting case.

Happy trails, Eric.

Shareholder Lawsuits Quickly Follow Facebook’s IPO

Thursday, May 24th, 2012

Nasdaq chart of Facebook stock
Facebook’s falling stock. (Image: Nasdaq)

Facebook and its investment bankers are being sued over an IPO that didn’t “pop” the way so many investors were hoping. After debuting at an issue price of $38, Facebook’s stock has fallen to a low of $30.94. As I write this, it’s trading at a little over $32.

On Friday, I did a post about the law of IPOs. I talked about how much paperwork you have to file with the SEC in order to do a public offering, including a long, boring document called an S-1. So tedious, almost no one will read it. Almost. As I said:

You know who reads S-1s? Other lawyers. In particular, litigators. Lawyers who are looking for some misstatement or some unmentioned fact that will serve as a basis for a lawsuit based on federal securities law. And then it’s off to the courthouse!

Ahem. That didn’t take long. According an Associated Press story published yesterday:

One suit, filed in U.S. District Court in New York, claims Facebook’s IPO documents contained untrue statements and omitted important facts, such as a “severe reduction in revenue growth” that Facebook was experiencing at the time of the offering.

AnnaMaria Andriotis at SmartMoney adds an interesting footnote to this whole story about a trend of declining payouts in securities class-actions. That means the Facebook lawsuits may be just as disappointing to investors as the IPO.

Updating Stories from the Past on Blog Law Blog

Wednesday, May 23rd, 2012

In the coming weeks and months I’m going to try to follow up on some of the many blog lawsuits that I’ve covered on Blog Law Blog.

Yesterday I started this effort with a post on TechnoBuffalo defense of a suit brought by a commercial printer trying to get to the source of a corporate leak.

Do you have a story you want me to follow up on? E-mail me and let me know about it – I’ll do my best.

If you were involved in a dispute covered on Blog Law Blog (and I know my readership includes blogger-litigants!) I’d love to hear from you with updates, postscripts, rants, or reflections.

Update on Johns-Byrne Co. v. TechnoBuffalo

Tuesday, May 22nd, 2012

TechnoBuffalo logo and headshot of CEO Jon Rettinger

In the case of Johns-Bryne Co. v. TechnoBuffalo, a commercial printer is suing a venerable gadget blog to find out who leaked photos of some new cell phone packaging the printer was producing for Motorola. When I last blogged about this in January, an Illinois state trial-level court had just rebuffed TechnoBuffalo’s attempt to use Illinois’s reporter’s privilege law to prevent having to turn over information about the leak. The court said TechnoBuffalo wasn’t a “news medium,” and its bloggers aren’t “reporters.” TechnoBuffalo turned around and asked the court to reconsider the ruling and vowed to appeal if necessary.

I contacted TechnoBuffalo’s CEO Jon Rettinger (heroic Twitter profile pic above left) to ask for an update. We talked on the phone. I was impressed with his sense of conviction – he is working hard to protect the blog’s source.

The motion for reconsideration is, at this point, still pending. On reconsideration, TechnoBuffalo has sought to put more support behind the notion that blogs are real news outlets. To beef-up bloggery bona-fides, TechnoBuffalo pointed out that a blog (HuffPo) recently won a Pulitzer. They also pointed out that TechnoBuffalo is syndicated word-for-word on more traditional news outlets, such as Business Insider, and that TechnoBuffalo bloggers are commonly tapped to make appearances on the cable news channels.

This will continue to be an interesting case to watch as it gets right at the heart of the matter the most salient question of blog law: To what extent the law will blogging inherit the privileged legal status of heritage journalism?

Review of a Review of 2011

Monday, January 9th, 2012

2011As Blog Law Blog continues it’s look back at 2011, I’d like to note a very good wrap-up article over at PBS’s MediaShift:

The article covers the principal stories in media law over the past year, and it does a nice job of hitting the important topics, but the legal analysis isn’t always right on. I’ll just look at one example – what the article lists as the number-one topic in media law over 2011: “‘Wiretapping’ the Police.”

“Wiretapping” sounds like it should involve a man in a headset sitting in a van listening in on your telephone calls. But the legal definition is often far broader — as many journalists and ordinary citizens found out after being charged with a felony for simply filming a few seconds of police activity in public.

It’s true that laws against making surreptitious audio recordings do go well beyond classic “wiretapping,” but I’m aware of no law that purports to make criminal “filming” police activity taking place in public. The an Illinois statute mentioned in the article prohibits recording audio of any conversation without the consent of all persons speaking. That was used against someone with a video camera that was also capturing sound, but the case was ultimately dropped, and it’s not clear that any recent prosecutions have happened under similar circumstances.

In general, however, the problem is not laws themselves – the problem is police arresting people for conduct that does not violate any law.

For instance, when attorney Simon Glik used his cell phone to record Boston Police officers arresting a homeless man in a public park, the officers arrested Glik under a law (Mass. Gen. Laws ch. 272, § 99) that prohibits “secretly” recording wire or oral communications. Glik wasn’t being secret. He was recording openly. His conduct didn’t violate the law. The problem there was that police were arresting Glik for doing something that wasn’t against the law. Indeed, the charges were soon dismissed. (Post-dismissal, Glik filed a lawsuit that successfully established constitutional rights to make such recordings as well.)

Another instance of this coming up – not mentioned in the PBS article – was the Baltimore Police’s action against Christopher Sharp, who recorded the arrest and apparent abuse of a woman at the Preakness Stakes. The problem there was not that Maryland law prohibited Sharp’s conduct – it didn’t. The problem was that the police seized Sharp’s cellphone on the spot and deleted a bunch of videos (including personal ones as well as the one of the police). At the time, one police officer made the completely absurd claim that it is “illegal to record anybody’s voice or anything else in the state of Maryland.” But, as I explained, that’s not the law.

That’s why the article kind of misses the point when it says:

The importance of the wiretapping cases cannot be overstated. If the government is permitted to prosecute citizens for collecting and disseminating accurate information about acts of official misconduct, specifically when those acts occur in a public place, both citizen and professional journalism — and by extension the public at large — will suffer greatly.

The problem is not the prosecutions. The prosecutions almost never happen. The problem is the police acting lawlessly on the scene.

2011 in Review: Bad Legislation

Monday, January 2nd, 2012

2011Unlike a lot of tawdry, pandering, cut-rate journalistic operations out there (Time, CNN, etc.) who claim to review 2011 before it’s over yet, here at Blog Law Blog, your faithful blogger waited until it was all over before claiming to look back at it.

So now it’s time. What characterized 2011 in blog law?

First up: Bad legislating. This was a year when legislatures engaged in all kinds of nonsense that, at best, was dopey, and, at worst, was potentially disastrous.

The California legislature outdid itself this year. First there was the absurd new statute threatening jurors with jail time if they tweet, blog, or otherwise use the internet to communicate about their trial. The law’s not inane because I have an affection for tweeting jurors. It’s inane because, when you look at it closely, it’s inane:

Could the California legislature have felt egged on by reading my withering critique? Well, they urned around and did something even worse with their Reader Privacy Act. Some laws I just disagree with. But the California Reader Privacy Act actually makes no sense. Here’s an actual quote from me about this law:

That’s P.O. Box Crazy Crazy Crazy, Crazytown Station, Crazy Valley Acres, California 95814.

For a more in-depth explanation:

Now, the worst legislation of 2011 was a set of related measure working their way through the U.S. Congress: the Protect IP Act (PIPA) in the U.S. Senate and the Stop Online Piracy Act (SOPA) in the House of Representatives. Now this stuff hasn’t become law yet – it’s still a bill (sittin’ there on Capitol Hill). But it’s really bad. The House Judiciary Committee will be taking SOPA back up this month. Let’s hope 2012 is a better year for legislation than 2011 was.

Woo-Hoo! I Made the ABA Blawg 100

Friday, December 2nd, 2011

Blawg 100 logo

The ABA Journal’s list of the top law blogs of 2011 is out and Blog Law Blog is among the honorees!

This is completely awesome. I’d like to thank Eric Goldman, for nominating me and for saying kind things, which were quoted in the write-up, and I’d like to my wife, for reading many of my draft blog posts – especially the ones where I try to be funny. And maybe now that this is a Top 100 blawg, she might even read it when I don’t specifically ask her to. I’d like to thank the American Bar Association for this honor. And of course, I’d like to thank all of my readers – the ones who write, the ones who comment, and all the ones who show up as blips on my Google Analytics reports. Without you, blogging would be a silly exercise in self-aggrandizement, which, of course, many people conclude it is anyway (but look how awesome I am now!). And I’d also like to thank – wait! Don’t play the music yet! I’d also like to encourage you to vote for Blog Law Blog in the ABA Journal’s fan favorite polling that is going on now through December 30. Thank you!

10,000th Konomarked Photo

Tuesday, November 22nd, 2011

icon of a pineapple in a thick black circleI just uploaded my 10,000th konomarked photo to Flickr.

Konomark is a project I’ve started to help facilitate sharing of photos and other copyrighted content on the internet. My putting a “konomark” on your copyrighted content, you invite strangers to e-mail you and ask for permission for gratis re-use.

You may have noticed this blog is konomarked, and there’s a line of konomarked photos that appears running down the column on the right.

If you’d like to konomark a photo on Flickr, here’s the best way to do it.

First, tag the photo with the word “konomark”.

Second, insert the following into the description for the photo:

This photo is <b><a href=”” rel=”nofollow”>konomarked</a></b> (“Most Rights Sharable”): If you would like to use this image without paying anything, e-mail me and ask. I’m generally willing to share.

Wow! I’ve Never Made My Students So Bored

Monday, September 26th, 2011

View from bottom up broadcast towerJudging by the looks on my students’ faces, last week, in my Media & Entertainment Law class, I gave what may have been the most boring lecture of my career. It was the lecture in which I explain how the FCC allocates frequency spectrum and doles out broadcast licenses.

What’s so strange is that the same lecture was a huge hit when I first taught this class back in 2005.

Of course, after class, I realized what the difference is. As recently as 2005, frequency spectrum and FCC licenses represented – as they had for nearly a century – the keys to the kingdom. If you wanted to get your message out there, you found a radio or television station.

Just six years later, it’s hard to talk about broadcast licenses without feeling like they are a quaint anachronism.

By the way, you may wonder how it is that I could tell my students were bored. Well, I’ve never witnessed a higher level of IM’ing, Facebooking, and Tweeting in class. And no, I don’t have mirrors in the back of class to see what’s on students’ laptops. I can see it clearly reflected in students’ faces. Messages were zipping through the wireless and around the internet at a furious pace.

And, of course, that’s the irony: Web 2.0 was not merely the symptom of the boredom; it was the cause.

Who cares about getting an FCC license, a giant steel tower, and a gargantuan electric bill when you can better reach an audience with your laptop and a wireless connection?

For an ex-radio-disc-jockey, I have to say it’s a little sad for me to face up to the reality. But, then again, it’s nothing I didn’t know. I mean, look at me: I’m off the airwaves and blogging to you. I’d like to say that I’m BLOGGING TO YOU FROM THE TOP OF MCCLELLAN PEAK WITH EIGHTY-SEVEN THOUSAND WATTS OF POWER IN THE MIDDLE OF 45 MINUTES OF CONTINUOUS HIT MUSIC.

But of course, I’m not. And I gotta say, it’s not the same to type that. Even in italics and all caps.

Video didn’t kill the radio star. But Web 2.0 sure did.

Qualitex Swatches for IP Teachers

Tuesday, September 6th, 2011

Qualitex press pad coverI know that there’s a contingent of Blog Law Blog readers out there who teach Intellectual Property in law school. If you do, I want to make sure you know about something I’m doing to celebrate the grand-reopening of my Museum of Intellectual Property.

I am offering to any bona fide teacher of Intellectual Property or Trademark Law a swatch of fabric from an actual Qualitex press pad cover, resplendent in its trademarked Qualitex green-gold color.

What is a Qualitex press-pad cover and why would I care? If you have to ask, I’m sorry to say, you won’t qualify for a swatch. It’s an IP-geek thing. In a landmark IP case, Qualitex successfully defended its color as a registered trademark. Qualitex Co. v. Jacobson Products Co., 514 U.S. 159 (1995) (holding that color can be registered as a trademark, overruling the Ninth Circuit).

I say “landmark IP case” because, let’s be honest, even though it was at the U.S. Supreme Court, it doesn’t really qualify as a “landmark Supreme Court case.” Like I said, it’s an IP-geek thing.

Anyway, having a swatch of the fabric as a teacher is helpful, because you can’t really experience the trademarked Qualitex hue except in person. As Qualitex notes on its website:

The Unique Green Gold Color is a Registered Trademark of the Qualitex Company. (The color on your screen may NOT be an accurate display of the Qualitex Green Gold!)

To claim your swatch, please send me an e-mail ( with your physical mailing address by September 19. I need the cut-off date so that I can know how finely to divide up the material that I have on hand.

Of course, even after I divide up the sample of material I have, the Museum of Intellectual Property will retain a full, intact Qualitex press pad on display. So go ahead and plan that family vacation around a visit to North Dakota to see the Museum of Intellectual Property in person.

I’m Joining Stanford CIS as an Affiliate Scholar

Friday, August 19th, 2011

Stanford Center for Internet and Society logoI’m very excited to say that I’ve joined Stanford Law School’s Center for Internet and Society as an affiliate scholar – a non-residential position I’ll hold as I serve on the faculty at the University of North Dakota School of Law.

My primary work through the center will be my Konomark project, which seeks to facilitate sharing of intellectual property on the internet. (You may have noticed that this blog is konomarked – as evidenced by the logo and sign on the right.) I’ll also be blogging at CIS – something I’ll do simultaneously with blogging here.

Through its Fair Use Project and its many other endeavors, Stanford CIS has done a lot in the service of freedom and democracy on the internet. They’ve been very good for bloggers and very good for cyberspace as a whole. I’m very honored to be invited on board.

I’m Trying Out Quora

Monday, May 16th, 2011

Quora logoI’m trying Quora. If you have questions about blog law, you can try posting them there, and I’ll consider answering them, especially if you tip me off by e-mail.

It’s Blog Law Blog’s One-Year Anniversary!

Thursday, April 28th, 2011


Yahoo Style Guide book coverIt’s been one whole year of Blog Law Blog! I feel like I should have a giveaway.

Since the first anniversary is the “paper” anniversary, I’ll give away a couple copies of the paperback manual of online content, the Yahoo Style Guide, which includes a chapter on the legal aspects of writing online.

Send me an e-mail at Put “blog law blog contest” in the subject line. I’ll send one copy to the first entrant, and I’ll put the the next 50 entrants into a drawing, the winner of which will receive the other copy.

Open to persons with a U.S. address. Entries must be received on or before Monday, May 2, 2011. Void where prohibited. Good luck! And thanks for reading Blog Law Blog!

The Top Blog Law Story of 2010

Friday, December 31st, 2010

The top blog law story of 2010 is …

What else could it be?

Happy New Year, everybody!

Photo from

Tweet Law Tweets

Thursday, December 30th, 2010

gavel coming down on twitter bird logo

If you like Blog Law Blog, try @tweetlawtweets, my new twitter feed, wherein I tweet about the legal aspects of tweets and Twitter.

Alan Schwarz: “I have no problem with bloggers.”

Friday, July 9th, 2010

I got a call today from New York Times sports reporter Alan Schwarz. He read my post from yesterday – via his Google alert – which discussed a recent podcast interview he did.

Mr. Schwarz took issue with something I wrote.

In introducing the blockquote in that post, I originally used this sentence: “Like many mainstream journalists, Schwarz sees bloggers as endangering traditional journalism.”

Mr. Schwarz disagrees with that characterization. I listened to the podcast in its entirety, and I chose my words carefully. I think my characterization was fair. Nonetheless, no one knows better what Mr. Schwarz thinks than he does. So if other words better reflect his opinion, I’m happy to use them. Indeed, the flexibility and updatability of blogging is one of its great attributes. Thus, I replaced the contested sentence with: “Schwarz is critical of bloggers who go too far in using copyrighted content.”

In his phone call with me, Mr. Schwarz emphasized that the gravamen of his complaint is copyright infringement.

“I have no problem with bloggers. I have a problem with thieves,” Mr. Schwarz said on the phone. In general, he sees value in blogging, and he does not regard blogging itself to be a threat to the continued existence of the traditional news media. His problem is with what he characterizes as stealing.

“Thieves endanger traditional journalism,” he said, regardless of whether they are bloggers, other traditional journalists, or whomever.

So noted. But Mr. Schwarz’s distinction points to a deeper question: What counts as theft? There are, after all, usually two sides to a copyright dispute.

We might be tempted to say that some cases are easy. What about when someone, who is not the copyright owner, takes an entire newspaper story and posts it online? You might figure that is clear case of theft, but that is exactly what the New York Times did in the case of New York Times v. Tasini.

In that case, the New York Times uploaded articles written by freelance writers to an electronic database, accessible to paying online customers, despite the fact that the freelancers, who owned the copyright to their stories, never provided the New York Times with the relevant permission. Of course, the New York Times argued that what they did was entirely proper.

As it turns out, the U.S. Supreme Court disagreed and sided with the freelancers. But it goes to show, what one person regards as theft, another person may regard as being productive.

The questions, of course, will continue.

A Blog Dedicated to Blog Law

Wednesday, April 28th, 2010

Should there be a blog dedicated to blog law? Yours truly thinks so. It has been said that pamphleteers of the American Revolution were the USA’s original bloggers, and that the First Amendment was written with them in mind. So if that’s true, blogging is the core inside the core of constitutionally protected free expression. It’s not clear, however, that the courts see things that way.

The power of the one-person-press is on the rise. I’m interested in exploring how the law is responding. The courts have long accorded considerable deference to newspapers. The question now is, when it comes to the sword and shield of the law, will bloggers will find themselves in a position superior to, equal to, or inferior to the paper-truck-and-honor-box media? There’s evidence for all three positions. We’ll see how it shakes out.