Friday, December 03, 2004
Legal Representation Is A Conversation
I have a bunch of thoughts about Jeff's Blogger's Legal Defense Society post from yesterday, but what I don't have at the moment is the time to flesh them out the way I'd like. So instead, here are some stream of consciousness notes and links, in no particular order.
Every time a blogger receives a cease and desist letter regarding some blog related activity (whether or not ceasing and desisting might actually be warranted on the particular facts), it's in everyone's interest if they submit it to this site. There are all kinds of good reasons to do this. Chilling Effects is a joint project of the EFF and some of the best Internet law legal clinics in the U.S. While they don't provide legal advice or representation, what they do with the letters they accept is basically publicly fisk them:
This website cannot provide individual legal advice — we cannot analyze your particular website or activity to assure you it is legal. (This is for your protection and ours — we do not have the resources to analyze every site individually, and we don't want to give the impression that we have.) What we can do is help present the issues as lawyers think about them and answer general questions: Does the law really say that? What is the scope of copyright, trademark, or defamation law? What defenses exist for a given claim? [...]
When you send us a cease and desist notice, we will categorize it and add it to the "chilling effects" database. The law school clinics will then review the general issues raised and add to the developing set of FAQs on the subject(s). Each letter or incident added to the database also helps describe the scope of the "chilling" problem: How much legitimate activity is being stopped by meritless threats, and who is sending ungrounded claims?
Hopefully, you can readily grasp the benefits of this, including tangible personal benefits for the blogger who receives such a letter. 1) You've gotten your issue in front of some very smart folks who also happen to be among the most likely to consider taking on your case on a pro bono basis if it's particularly egregious/milestone in nature. 2) If the analysis goes your way when they post the marked up letter (and bear in mind there's no guarantee it will; as far as the law is concerned you might have done something perfectly cease-and-desist-worthy), you have some good ammunition for responding to the sender. 3) The richer the Chilling Effects database, the more people it potentially can help.
Pro Bono Bloglico
Jeff's post envisions that lawyers will volunteer to respond to blogger distress calls pro bono. Let's get real and practical here for a moment. Most lawyers, while committed to devoting a portion of their practice to pro bono activities, aren't really in the big-ass yacht league. The pro bono work they take on thus generally (and this admittedly is a sweeping generality) has to be exceptionally and personally compelling to them. Think big, politically charged issues like death penalty, abortion, affirmative action. Coming to the rank and file of the legal profession with "X says I defamed/infringed/circumvented, etc., and I can't afford a lawyer" probably won't get you a whole lot of pro bono love. That said, there probably are avenues for receiving pro bono help with these sorts of cases, I just don't think it's going to be all that easy to come by. The organizations involved in Chilling Effects, along with Stanford's CIS, should be the first line of inquiry for now I would think. What might be interesting to try to accomplish, and this is in keeping with what Jeff has in mind, is to set up a new legal clinic that is entirely devoted to providing pro bono services for these sorts of cases. Back in the early '90's, for example, I volunteered at a legal clinic that had sprung up to provide help to the families of Gulf War soldiers who were having trouble with creditors, landlords, etc. while their breadwinners were detained overseas. I would think the same kind of thing could be set up in a virtual manner for bloggers in need. To enhance its stability and success it would help if it could be affiliated with an organization like a law school, the technology section of a regional bar association, or the EFF.
Know Your Risks/No Free Lunch
Your chances of wrecking your car aren't all that great, but you find a way to insure it. House burning down or sliding seismically into the Pacific, same thing. If you're a blogger (particularly one who enjoys pushing other people's, sometimes big-ass yacht people's, buttons), it's silly not to investigate your insurance options and coverage. If you already have a homeowner's or renter's policy, talk this issue over with your broker or agent. You may be surprised to learn you already have some kind of coverage, or can add a rider without breaking the bank. Jeff also is on to something about coalescing as a group and negotiating reduced rates. The problem with relying on insurance to look after your interests in these kinds of situations is there inevitably are issues concerning the existence and scope of the coverage, and depending on the laws in your state you may not be able to hire the lawyer you want, either because you're saddled with whomever the insurance company may choose (medical analogy: HMO care), or with prohibitive extra cost (medical analogy: the $$ you shell out to see a non-network provider). So, there's always...
I think Kevin Heller's post on this is tongue-in-cheek, but I also think there's something there to explore. Jeff Jarvis is already talking about a blogger's trade association of some kind, I think this has been a popular topic at BloggerCon. Suppose members paid dues that went into a fund that paid the fees of lawyers on call to assist members with blog-related legal needs? These sorts of prepaid legal services scenarios do exist. (I seen 'em on TV.)
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