AUGUST 31, 2009

Cross posted on Solutions for Power, the Network Solutions blog.

Last month, Dallas Lawrence, Vice President of Digital Media at Levick Strategic Communications, and I spoke on a panel for lawyers sponsored by Grow Smart Business.

Our topic that morning: “Social Networking for Law Firms 102,” and specifically how lawyers can help clients use social media in times of crisis to get their messages out proactively. The crowd was made up mostly of lawyers and law firm marketing professionals, and while we did talk about crisis communications, some of the discussion also centered around how law firms can use their own social media – websites, topic-specific blogs, and even Twitter accounts, to attract clients and manage their own reputations.

As Dallas recommended, using keywords and search engine optimization on each page of a law firm website can help generate business simply by including strategic descriptions of practice areas and attorney expertise. Dallas also recommends that law firm HR departments “friend” their attorneys, so that they can see how the firm is being represented on social networks. We talked about some of the key points to consider when advising clients how to use social media to protect their reputation in a crisis:

(1) have a social media presence and a crisis plan in place in advance of the crisis;

(2) be willing to respond, engage, apologize, reassure and explain, for as long as it takes;

(3) don’t forget to engage your employees, who can become brand messengers; and

(4) use all of the tools (social and traditional) at your disposal to amplify your message.

Here are some other points that were raised on our panel:

Generally, bloggers write about what they are passionate about.

Helping clients engage in dialogue with social media on topics of shared interest can be very rewarding for both parties.

There are many tools available to clients trying to monitor what’s being said about them online. Google Alerts, BackTweet, Tweetdeck, and Tweetbeep are examples of free social media monitoring tools that can help track client names and issues, and provide instant notification of relevant discussions. Social media is also an excellent way to research jury pools and community opinion on issues related to litigation. There is no one tool that provides a silver bullet for communication today – clients need to be engaged in traditional media as well as different kinds of social media in order to reach their intended audiences.

Many thanks to Steptoe & Johnson LLP for hosting the panel.

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JUNE 2, 2009

After my last post went up, I got a few e-mails from friends and family (yeah, I send people my blog posts) wondering how the government could possibly “do something” about the nation’s food problems without raising costs for American families. And, unfortunately, the short answer is that they can’t - any successful government effort to reform America’s diet will mean higher costs for consumers. The reason? Modern management and scientific techniques have made our food industry insanely productive, yet those same techniques have led to the ethical, environmental and health problems I mentioned in my last post. Fixing the problems mean losing some (but not all) of the benefits of a productive food industry, which means higher costs for food. You can see this divide in the higher prices you pay for vegetables at a farmer’s market vs. those at a supermarket.

But, I’d respond with the fact that a reformed food industry ultimately means lower environmental, ethical and health costs. Incidences of diabetes and obesity, for instance, would likely decline if high-fructose corn syrup were not used to the extent it is today. And those two diseases account for a variety of other complications that cause health costs to rise, a serious threat to family budgets as well as the continued solvency of Medicare. It’s the same with the scarcity of fresh foods in poor urban areas. So ultimately, we’re paying for our Pop-Tarts and Coco-Puffs, but in a much less transparent and predictable way.

Economists call this an “externality” - a cost of a product not reflected in its price. Consider, for example, a hypothetical widget plant in Widgetville, VA. The total market value of the widgets produced there is $10,000,000, but, in the manufacturing process, the widget plant causes $1,000,000 worth of damage to Widgetville in the form of pollution. Those costs, under a strictly free market, are borne by the residents of Widgetville; they are not reflected in the price of the widgets everyone else buys. Not fair, right?

There are four ways to fix externalities: 1) make the external cost illegal - in this case, simply outlaw pollution in Widgetville; 2) pass tort legislation to allow lawsuits against the producers of external costs - in other words, allow Widgetvillians to sue the factory; 3) government provision - in other words, having the government take over the widget industry and set prices itself, to compensate for the external cost; and 4) taxes - in this case, creating a widget tax whose proceeds go to compensate for the external cost.

You can probably imagine that there are downsides to all of these. Making widget pollution illegal means no more widget business. Encouraging lawsuits means huge and unpredictable costs on widget producers, which would discourage the production of widgets, not to mention that damages paid would be ex post facto, requiring Widgetvillians to live in a polluted town. Government control of the industry means a lack of competition, which means poorer-quality widgets. Of these, only taxation manages to capture the true cost of widget production while spreading that impact out among the entire widget market. Widget buyers have to cope with a little additional cost, sure - but Widgetvillians are happy and compensated for their loss and the widget producers are still in business and profitable.

To cope with the external costs of the modern food industry, we’ve tried banning pollution and we’ve tried tort law. There are always loopholes in any pollution law, and the tort system would require someone to actually be poisoned by food before external costs can be imposed. Our political culture precludes attempting long-term nationalization of almost all industries, and it’s not a great idea in any case. What we haven’t tried, however, is a small tax that incentivizes local, healthy ingredients over mass-produced “food“. And with modern technology, we can easily create much more precise taxes that get closer to the true cost of a good - for instance, charging a 1-cent tax for every 25 miles an ingredient travels from its source to its retail outlet, which would help account for greenhouse gases released in the transportation process, or a small tax indexed to grams of saturated fat or high-fructose corn syrup - funds that could be diverted to Medicare or tax rebates to save people money on medical care. That way, people still have the choice to eat unhealthy foods, but at least those who do eat healthy wouldn’t have to pay for it down the line.

So, the long answer to the question is that yes, food prices would increase. But there are two important advantages in changing tax law to incentivize healthier foods - first, we’d have a dedicated revenue source to deal with unpredictable external costs, and second, families could opt out of paying those costs by making smarter choices at the supermarket.

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MAY 18, 2009

I finally had some time today to begin catching up on the many, many posts I’ve been neglecting in my Google Reader over the past few weeks. While I hate feeling so far behind, I love that when I finally spend a few hours going through it, I usually emerge with a broader sense of what’s going on than if I read each post individually. Today’s take-away, based on my quick sampling of posts: innovation is key. The bloggers in my reader cited tons of companies, individuals, and even government organizations who are coming up with new, unique ways to solve problems or adapt to the changing market. Of the group, my favorite comes from Danger Mouse (via PSFK).

I first started keeping tabs on Danger Mouse, a music producer whose real name is Brian Burton, in 2004 when he released The Grey Album, an amazing mash-up of Jay Z’s The Black Album and what is often referred to as the Beatles’ White Album. If that doesn’t ring a bell, he was also half of the musical duo Gnarls Barkley, who gave us the song that was stuck in my head for most of 2006 - “Crazy“.

Danger Mouse is making headlines today because of the less-than-traditional format of his new project “Dark Night of the Soul.”  The project includes an album-length piece of music featuring guest vocalists such as Iggy Pop, The Flaming Lips, and Julian Casablancas, along with a 100+ page book of original David Lynch photography inspired by the music. But that’s not what fans who pre-order through the project website will receive with their $50 purchase. According to the website, all copies will also be clearly labeled with the following statement: “For legal reasons, the enclosed CD-R contains no music. Use it as you will.”

That’s right, due to a legal dispute with EMI, Danger Mouse says he can’t release the music, but encourages fans to “hear the music, by whatever means” necessary. (If you’re interested in checking out Danger Mouse’s entire album, NPR is streaming it here.) As his past efforts show, Danger Mouse has never been one to shy away from controversy and selling a blank CD and boldly encouraging fans to pirate his work is bound to generate more.

We’ve written about a few of the music industry’s innovative services and even about some of its legal issues here on Undercurrents, but I’m always surprised by the ways artists and companies are redefining the traditional music model. Music is ground ripe for innovation. Artists like Radiohead and Wilco have taken stands for revamping the “old model” and much like in the news industry, the large, powerful companies who once maintained control of the music space are slowly losing power. In addition to battling artists, independent labels, and music start-ups, music’s power players also now have to fight forces from outside their industry. I’m sure that even 10 years ago the major labels would have never guessed that Apple would play such a pivotal role.

Innovation comes in all shapes and sizes, but one thing is certain: in a world as uncertain as the one we currently live in, we need a spirit of innovation. I applaud people like Danger Mouse who take on challenges in a bold, brazen way.

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MARCH 26, 2009

Since the days of Matlock and Perry Mason, the trial system in our country has remained largely unchanged. Today, we still have courtrooms with judges, lawyers, and a jury of our peers. However the legal institution is now facing new threats, with technology changing the way our society seeks and pushes information.

Last week I read a New York Times article that reveals a recent rash of mistrials due to jurors accessing the Internet either to seek information on the trial or spread information about their involvement.

The article describes several examples where a mistrial was called, or an appeal was filed, based on such actions. Take the story of Stoam Holdings, a company that was being sued for mismanaging investors’ funds. Jonathan Powell, a juror in the case, posted messages on his Twitter account that included, “So, Jonathan, what did you do today? Oh, nothing really. I just gave away TWELVE MILLION DOLLARS of somebody else’s money!”and, “Oh, and nobody buy Stoam. It’s bad mojo, and they’ll probably cease to exist, now that their wallet is $12M lighter.”

Once again I sought the opinion of my colleague Peter (who was in the process of deleting his Twitter account) on this topic, and we had a lot to say about it:

Peter: This is why Twitter makes me furious! People don’t use Twitter to actually read and care about what other people say. They post messages to get others to read them, and everyone panders to everyone else’s need for attention. Powell thought he was being cool with that message, that he would get everyone’s attention with a statement like that. It’s really sad.

Me: You are absolutely right, I think the world of blogging, Facebook, and Twitter. They have given society an outlet to grow their own egos. It is hard to tell a society that has embraced the idea of total transparency in their lives to be discreet with something that could be a sensational hit on their blog or Twitter feed. We also live in a world where people can seek answers instantly with the help of the Internet. Imagine being a juror in a trial without access to Wikipedia to answer that question he has about a theory. That juror will be tempted to find out the answer on his own at home when they go home for the day.

Peter: Yeah, people don’t want to be fed information now that we can find information on our own and arrive at our own opinions.

Me: True, but unfortunately when someone looks up information online, it’s not subject to cross-examination and the discovery rules that make the trial system fair and just. I’ll be afraid of the day law firms start trying to influence juries by planting information on Wikipedia and Google. I’m reading this article again and I bet this Powell guy was excited to say something more interesting than his daily routine as a photo manager at Wal-Mart.

Peter: This is why I think there’s no point to even have Twitter - it offends me deeply and that’s why I am deleting my account.

So where do courtrooms go from here? I am amazed that some courtrooms are allowing jurors to have their cell phones and Blackberry devices in the courtroom. Not only would I encourage stronger enforcement of keeping them out of the courtroom, I would also encourage judges to be more explicit about jurors going online and the possible consequences of their actions. Deliberations, a blog about trials and juries, has a post that describes a simple way that lawyers and judges can guide today’s tech-savvy jurors.

I agree with the post that while the court system hasn’t changed, the society it serves has. The justice system needs to pay attention to that fact and adapt, or else we may start seeing more of these “Twitter” mistrials.

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MARCH 23, 2009

By now, most everyone is aware of the negative consequences associated with posting too much about ourselves on social networking sites like Facebook and MySpace. We’ve talked about it several times before here on Undercurrents. We also know, either from experience or through various news outlets, that it is becoming more and more common for potential employees to be screened via Facebook.  However,  I was still surprised when I read that a girl was fired because she expressed her boredom at work in her status message on Facebook. Fired!

In another recent situation, a police officer posted descriptions on Facebook of his aggressive and negative feelings about his duties as an officer, and, consequently, his posts were subpoenaed and used in court. The case resulted in the acquittal of an offending ex-con.  In his defense, the police officer claimed, “You have your internet persona, and you have what you actually do on the street.”

As these scenarios demonstrate, technology is continually breeding transparency. It is becoming more and more difficult to maintain two selves - the “online” you and the “real life” you. And, our online actions can have serious real-world consequences. While I question whether information found on personal online sites should be used as a means for terminating employment or be admissible in court, it reminds me that the transparency that social media breeds is powerful and, in a sense, is leveling the playing field among all groups of people. Sites that were once populated almost entirely by tech-savvy, early adapters are now commonplace, easy to use, and home to a diverse, ever-expanding audience.

This broad accessibility and acceptance of social media means that all of our actions online - how CEOs run their businesses, how politicians conduct their private and public lives, and how people in general express themselves - are fair game, like it or not.

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MARCH 3, 2009

Stanford University academics Ryan Lampe and Petra Moser have recently been intensely debating the merits of patent pools.  A patent pool is basically a form of intellectual sharing.  It’s the result of two or more companies putting their competitive agendas aside and agreeing instead to cross-license various “patent pieces” that are required to build a single technology.  While the idea makes sense, the jury is still out as to whether patent pools actually encourage or hinder innovation.

As TechDirt’s Mike Masnic explains, “Patent pools tend to come about when you have a lot of patents in and around a particular product, creating ‘patent thickets’ where a bunch of different patent holders all hold onto important pieces of the puzzle.  The worst case scenario, then, is that nothing can get done, as it’s impossible for anyone to innovate without being hit by a ridiculous number of lawsuits.”

Professor Eric Maskin from the School of Social Science at the Institute for Advanced Study offers an equally compelling insight on patents and innovation.  Maskin argues that, when discoveries are “sequential,” (each successive invention building essentially on a preceding invention), patent protection is not as useful for encouraging innovation.  Not only does Maskin believe that society and the inventors themselves could be better off without such patent protection, but he also claims that an inventor’s prospective profit may actually be enhanced by competition and imitation.

Regulators and antitrust authorities in Washington tend to favor patent pools that encourage innovation in industries where overlapping patents and excessive litigation suppress innovation, such as the biotechnology arena.  Lampe and Moser, on the other hand, would argue that patent pools are not always the best solution.  Sometimes, it seems, pool members patent less as soon as the patent pool is established and only resume patenting after the pool dissolves.  Professor Maskin may then insist that it would be better to throw out such patents if they’re clearly hindering, rather than enabling, innovation.

So, when are patent pools a good solution?  Well, last June, six WiMAX firms teamed together to create the Open Patent Alliance, a group whose goal is to jointly license WiMAX patents so they can keep royalty rates in check and make the telecommunications technology more affordable.  The companies involved in the formation of the OPA included Cisco Systems, Intel Corp., Alcatel-Lucent, Clearwire, Sprint and Samsung.

In addition, according to a recent post from PatentHawk, patent pools for the SARS vaccines and HIV/AIDS drugs have risen lately.  That’s a good thing, right?  On February 13, in a speech to Harvard Medical School, GlaxoSmithKline CEO Andrew Witty announced that his company would contribute its own patents for technologies that might aid research into malaria, cholera and more than a dozen other diseases.

This type of approach is a refreshing mix of social responsibility and good business strategy.  I wonder: how many companies and industries will follow this model?

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JANUARY 29, 2009

I am a big believer in second chances, which is why I was especially happy to read this article in the New York Times about the impact drug courts are having across the country. According to the National Association of Drug Court Professionals, 70,000 offenders are in juvenile or adult drug courts at any given time nationwide, “the fastest-spreading innovation in criminal justice– giving arrested addicts a chance to avoid prison by agreeing to stringent oversight and addiction treatment.”

Offenders sent to drug courts represent a small fraction of addicted criminals, but these courts provide them with an opportunity to sign up for 9 to 18 months (or more) of extreme supervision by a judge, including group therapy, mandatory sobriety testing, and random drug testing. The intent of these drug courts is to emphasis true personal transformation. Many judges, like Chief Judge Judith S. Kaye, feel that these programs serve as interventions that actually work. In fact, studies mentioned in the New York Times article have shown that drug courts have reduced repeated bad behavior by 8-10% nationally and as much as 26% in New York State alone. (Needless to say, NY taxpayers are thrilled.)  Quite a few addicts say they never could have done it on their own, and brag that “drug court saved my life.”

Many lawyers, however, have a completely different take on the situation. A number of them feel that defendants’ rights are infringed upon because of the need to acknowledge guilt (or agree to a plea bargain and sentence) in order to enter the court. This means an addict may go to drug court in order to avoid prison, but may also be trapped by a guilty plea if treatment fails and he/she is expelled from the program. Some critics also worry that drug courts will use up scarce treatment slots at the expense of other addicts who desperately need help.

Regardless of where you stand on this issue, one thing is for sure: the courts are recognizing that one size does not fit all, especially when it comes to drug treatment and sentencing. While it’s no secret that we’re used to having things personalized nowadays - our Facebook pages, our medicine, our bodies, our beds – personalized criminal sentencing is a particularly interesting new example.

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DECEMBER 4, 2008

Batman is not too happy with The Dark Knight and is contemplating a scheme to take back what is rightfully his. No, this isn’t the plot for another Caped Crusader movie, rather, it  seems that the Mayor Huseyin Kalkin of Batman, a small town in southeastern Turkey is crying foul because he never gave The Dark Knight director Christopher Nolan permission to use the name of his city.  According to the Mayor Kalkin:  

The royalty of the name ‘Batman’ belongs to us. There is only one Batman in the world. The American producers used the name of our city without informing us. 

It appears that Mayor Kalkan has plans to sue Nolan for trademark infringement for royalties from the 2008 mega blockbuster. According to The Escapist Magazine, Kalkan’s claims are based on the fictional Batman having a negative affect on the city, blaming the movie on the several unsolved murders in the city, as well as a high suicide rate amongst females in the city. 

Pause.

I’m sorry, but what?!  I realize that intellectual property issues are exploding these days, but this particular case falls into the “ridiculous” category.  Copyrighted music and patented medications have long been an issue, but it seems that the assertion of intellectual property is now showing up where we’d least expect it. Is it simply a matter of respect?  Is it about money?  Or is it that “ownership” is being redefined?  With individuals and companies now staking claim to virtually everything  - from words to images to products - it’s possible consumers have lost a sense of what that means.  

Moving forward, there’s no doubt that the IP arena will be one of the most fundamental challenges of the 21st century.  Big money is at stake; litigation and legislation will impact the definition.  And who will ultimately define the boundaries?  Jurors and consumers. At TMG, we believe that listening to the public – understanding how they think and what they value – is the best place to start when attempting to get a handle on the issue like ownership and IP.

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NOVEMBER 7, 2008

I am big fan of internet snooping. It never ceases to amaze me, what I can learn about people through a simple Google search. I’ve tracked down wayward college classmates for our alumni website. I once planned a reunion for a summer journalism program I attended in 1986 and tracked down, online, almost 75% of the people who attended.  And that was all before Facebook and LinkedIn, two sites that have made internet snooping even richer.  It’s no surprise that it has been over two years since Merriam-Webster added the verb “to google” to the dictionary. Googling has become a way of life.

This week I came across an interesting angle on the Google culture.  Buried underneath all of the election news was this article in The Washington Post (and printed in various other papers) about litigation consultants using the internet to get information about potential jurors. For example, a trial consultant working for a client involved in a patent case learned via a potential juror’s website that she “had spent a lifetime marketing exclusive sequined gowns for beauty contestants, only to have them copied without compensation.” Clearly, she was a good jury candidate for a client bringing a patent suit, given her sympathy for intellectual property holders alleging infringement.

According to the article:

Now, with a wealth of information online - newspaper letters to the editor, petition signatures, club memberships, campaign contributions - retrievable with a couple of keystrokes, Internet surfing can produce a detailed picture of how an individual votes, spends money and sounds off on controversial issues.

For some reason, this development doesn’t sit right with me. I don’t fault the lawyers for using these tools to learn all they can about jurors - I wouldn’t expect them to shy away from a free resource that offers significant insight into the minds of the individuals in whose hands their clients’ fate rests. But I can’t shake a nagging feeling that this is not what the jury system was supposed to be built on. Jurors are basically supposed to be anonymous and seemingly impartial, and the Google effect basically makes that impossible.  Lawyers can now practically custom design their ideal jurors, based not just on demographic data and courtroom demeanor, but also on the jurors’ own thoughts, history, and actions.

Just another byproduct of the Information Age? A troubling intrusion into personal privacy? Or a fundamental flaw in our judicial system?

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