JD Scoop

Of interest, a new HOT DOCS from top contributor Electronic Frontier Foundation:

The case in question (Capitol Records, Inc., v. Jammie Thomas) is, by itself, interesting for anyone following the ongoing story of copyright infringement and file sharing. And yet equally striking for us is that this is a story of a retrial - in other words, a story of checks and balances in the legal system.

From EFF's document summary:

... Jammie Thomas was found liable for copyright infringement for file sharing, and hit with a $222,000 judgment. Thomas' case was the first file sharing lawsuit to reach a jury verdict.

On May 15, 2008, Judge Michael Davis requested briefing on whether Thomas should receive a new trial. The court said it was concerned that it might have made a mistake by instructing the jury that Thomas could be found liable if she simply made copyrighted songs available in a shared folder. There's good reason for this concern — as EFF noted at the time, and several courts have since affirmed, "making available" is not a cause of action under copyright law.

The system at work:

• Capitol Records, Inc., a Delaware Corporation, et al., v. Jammie Thomas: Order Re: Motion for New Trial

Interesting blog post yesterday by Kevin O'Keefe at LexBlog on the practice of presence marketing. Kevin's post is in response to another on the topic by Technosailor's Aaron Brazell (titled Effective Presence Marketing in Social Media).

The idea (quoting Kevin quoting Aaron):

Presence Marketing is the recognition and exposure that a person or company gets simply by being there. Where is there? It is simply anywhere that people are.

... By being active on blogs, social networks or any other format that places a high dividend on visibility, companies and brands are engaging in Presence Marketing.

Straightforward enough. And as Kevin says: "Lawyers do online presence marketing through effective blogging and the making use of social media."

He cites as an example Francis Pileggi whose blog content (and its subsequent syndication in high profile places like the WSJ) has created for him "a brand name in the area of Delaware corporate litigation."

In other words: be there. Participate.

For members of the legal industry this means, among other things, participating on the targeted, destination websites that do a good job of aggregating useful legal information - lots of it - to a wide audience of consumers and colleagues. You participate by sharing your work; that's our model.

The destination websites also influence search results. If for a moment we only consider how people use the search engines  - how they find information, services, other people online - we see again why presence marketing is so crucial. To whit:


- If people don't know who you are (don't know your name, your firm's name) the dynamics of online search today are such that they'll more likely stumble upon your work before they ever find you.

Search engines like Yahoo! and Google are not directories (although Yahoo! once was). In general terms, they don't catalogue the web, site by site - they index it, page by page. And they match what's been indexed to some pretty darn specific queries. The search engines don't simply deliver website listings; they deliver the most relevant information they can find.

Of course this applies not just to searching the engines but also jumping to those destination sites. The more substantive pages of work you publish online, the more chances you have of being "relevant," of being noticed in the crowd. Someone finds your work; as a consequence they find you. A single website is no longer enough, as if it ever was.

(What if there wasn't any work? People probably wouldn't find you, your website.)


- If people do know who you are (know your name, your firm's name), you already have an online presence, whether you want one or not.

This is true even if the search results come up empty (which is, simply, the weakest kind of online presence of all). We've said this already in another context: in the age of Google, you will be Googled.

Do you happen to know what a referral or prospective client will find among the search results, when they inevitably Google you? Whatever the answer, that's your online presence.

Never before have you had so many opportunities to manage what is seen of you online. Publishing work on the Internet is not just presence marketing, it's presence management.

From high-visibility destinations (information portals) to search engine results, the question becomes: what are you doing to manage your online presence?

Here's a look at some of the JD Supra members coming to us from outside North America. Their presence in the community helps to diversify even further what is already an amazing pool of talent, experience, and expertise. Welcome!

From China:

Liang Yongwe - with offices in Beijing; specializing in FDI and overseas direct investment, project contracting, arbitration, CDM legal affairs, and more. Member of the International Investment Commission under Beijing Municipal Lawyers Association.


From Italy:

Studio legale Tedioli - located in Mantova, Italy; offering services for matters including debt collection, bankruptcy proceedings and liquidations, contract law, and international purchase law.


From Spain:

Goñi y Cajigas Abogados - located in Madrid; mainly focused in Corporate Law, Contractual Law – both national and international - and merger and acquisitions. The firm includes lawyers who have a broad experience regarding additional areas of practice as Administrative Law, Bankruptcy Proceeding and Company Tax Law.


From South Africa:

DE Professional Consultants - with offices in Mauritius, the United Kingdom, and South Africa (and New York and Florida); specializes in tax controversy and risk management, assisting tax lawyers and consultants to formulate tax risk management strategies for their clients, to eliminate surprise IRS audits and Tax Court litigation.


From the United Kingdom:

Nabarro - Operating in a number of industry sectors and legal disciplines; headquartered in central London, with offices in Sheffield and Brussels. "We draw on longstanding relationships with a network of selected firms worldwide for our cross-border work. We have strategic alliances with partner firms GSK Stockmann & Kollegen in Germany and August & Debouzy in France."

infolaw - "Established in 1991 to provide forms and precedents and law publishing services ... have broadened the range of our services to cover all web-based publishing activity. Our products and services are used by over 1,200 law firms, corporate legal departments, barristers, academics, students and a number of law publishers."

There are enough Canadian firms and lawyers in the mix to merit their own roundup in a separate posting. Stayed tuned.

In the meantime, did we leave anyone out? Please let us know. Drop us a comment below.


[In our headphones via Internet Archive: Eyes of the World, the Grateful Dead, May 21, 1974. The University of Washington, Seattle, WA - thirty-four years ago today.]

Top-ten JD Supra contributor Lane Powell PC has uploaded an interesting analysis of the U.S. Interior Department 's recent decision (via the Fish and  Wildlife Service) to place polar bears on the "endangered" list.

Polar bears are the first animals to be protected by the U.S. government's Endangered Species Act because of global warming; and yet, in what many see as a bitter twist of irony, last week's decision was accompanied by guidance limiting when Fish and WIldlife "will consider climate change in evaluating agency actions that might affect not just polar bears but any listed species."

The listing, however, specifically carves out from future considerations about the polar bear and its habitat any climate change impacts of facilities in the lower 48 states that emit greenhouse gases. According to the listing, '[T]he best scientific data available today are not sufficient to draw a causal connection between greenhouse gas emissions from a facility to effects posed to polar bears or their habitat in the Arctic.'

In other words, while we'll see a decrease in illegal hunting of polar bears, the government's decision does very little to curb the real reason for putting these magnificent animals on the list in the first place.

Interior Secretary Dirk Kempthorne, in his announcement of the listing and the Service's memo, said that the ESA is not the right tool to set U.S. climate policy, and he would not allow the listing of polar bears to open the door for the ESA to regulate greenhouse gas emissions from automobiles, power plants and other sources.

Lane Powell argues that this position "runs contrary to a growing trend among the courts, including the U.S.  Supreme Court and the Ninth Circuit, to use statutes such as the ESA, the Clean Air Act and state environmental laws, to require that government agencies consider climate change impacts in their planning and permitting decisions."

No doubt the decision is a move in the right direction for polar bear survival - but is it enough? And should statutes like the ESA be used to influence climate-change planning? What's your call? Let us know.

Further reading:

• Polar Bears Listed as Threatened Species, but Fish and Wildlife Takes Climate Change Out of Most Endangered Species Act Determinations (Lane Powell on JD Supra)
• Lane Powel PC on JD Supra
• U.S. to list polar bears as threatened species (San Francisco Chronicle)
• Government: Polar Bear to Be 'Threatened' Species (ABC News)
• Polar Bear Threatened Listing Weakened by Contradictions (National Wildlife Federation)
• Polar Bears 'Threatened' (Truthdig)

Here's an interesting JD Supra Hot Doc from The Law Office of Steven Siegler, one of our newest contributors, located in New Jersey and practicing in all areas of employment law.

Boywitt v. Brunswick Bancorp is a case of unlawful termination involving a potential money laundering scheme and the alleged firing of the bank officer/whistleblower who first discovered and reported the scheme. 

According to Mr. Seigler's document summary:

In late March or early April 2007, Mr. Boywitt learned that a bank customer had repeatedly exchanged thousands of dollars in old $5 bills for new cash. When Mr. Boywitt questioned the Bank's two head tellers about the transactions, they stonewalled him, refused to follow his instruction to monitor the customer further, and allegedly lied to him regarding a transaction where $8,000 of the old cash was exchanged for new.


The Complaint further alleges that Mr. Boywitt, who was obligated by law to report this suspicious activity, notified his boss ... of his intent to file a report with FinCen. Two days later, [his boss] allegedly cursed out Mr. Boywitt and abruptly fired him, saying "you would file [a suspicious activity report] against [Bank] employees? Are you f-----g out of your mind? You're fired!"

In our collection of tips on how to write compelling document summaries ("Pitching Your Hot Documents") we recommend finding the story and wasting no time to tell in clear terms. Mr. Siegler's summary lives up to the job, as does the complaint.

From the complaint here's a detail that reads as though lifted from a dime store detective novel. When the customer in question came to the bank to "exchange several thousand dollars in cash" the teller remarked that the bills smelled old.

The customer's explanation was that his mother died and that he is "finding money" throughout her house.

The teller said that she would've reported the transaction sooner but was told not to by another bank employee.

We checked in by telephone with Mr. Siegler, who has been practicing employment law for ten years in New Jersey ("an employee-friendly state") and in that time has "never seen such a blatant retaliation against someone just doing his job."

"Whether or not there was money laundering, here's the case of a bank's Secrecy Act Compliance Officer simply doing what's required by the law and being fired for it. If every bank in the country was allowed to continue this type of thing it would be open season on these officers - that would be a problem for everyone."

Undoubtedly the bank's version of events will be made available during the case. We look forward to reporting them here as the story unfolds.

Here's a round-up of some of our the newest members who started sharing their work on JD Supra this past week:

	Levin & Perconti - a Chicago  "law firm concentrating in all types of personal injury, medical malpractice and wrongful death litigation . . . Levin & Perconti has recovered more than $250 million in verdicts and settlements for [their] clients, many of them in high-profile cases that received national media attention."
	Richard Farkas - whose firm, "based in Sherman Oaks, California, is a practice engaged in general civil, commercial and corporate litigation in all California State and Federal Courts, business planning, insurance and computer law. The firm has been actively involved in complex, multi-party business litigation, civil appeals (State and Federal), as well as wrongful termination, business organization and maintenance, and commercial and corporate transactions."
	Ellyn Law LLP - "a Toronto business litigation, commercial litigation, shareholder litigation and enforcement judgments."  The firm is "a member of the International Network of Boutique Law Firms (INBLF) and of the Association of European Lawyers, a global legal network with more than 400 legal offices."
	William Walzer - "head of the Real Estate practice at Roy P. Kozupsky & Associates, LLP. The firm negotiates and documents sophisticated real estate matters, including sales and acquisitions, financing, construction anddevelopment, retail, office and industrial leasing, property management and multi-party, tax-deferred exchanges.
	Kenneth Fink of Cheriff & Fink, PC - a New York firm that "offers a wide array of legal services including civil litigation, real estate, corporate and business law, estate planning, and entertainment law." The firm "is driven by the twin guiding principles of providing effective professional representation and establishing and maintaining long lasting attorney-client relationships."
	PCT Law Group, PLLC - a law firm with offices in Washington, D.C. and McLean, Virginia. The firm's "practice focuses on providing legal counsel and representation in the complimentary core areas of: Corporate, Intellectual Property and Litigation.
	Simons & Wiskin - a New Jersey firm that "concentrates its practice in the area of customs, export, international trade and related transactional law.
	Teresa R. Martin - owner of a "New York based Real Estate, Bankruptcy and Foreclosure Defense Firm representing purchasers, sellers and investors in all aspects of the real estate transactions including asset protection and litigation. Additional service areas include credit restoration and real estate education and consulting services."
	Ryan, Swanson & Cleveland, PLLC - a Washington state firm which provides "legal counsel and representation for businesses - small and large, privately-held and public, domestic and international."

A simple definition of marketing: "Getting someone who has a need to know, like, and trust you." (Italics are ours.)

The language comes from marketing coach John Jantsch (author of Duct Tape Marketing) by way of Joe Pulizzi in a post yesterday at Pulizzi's excellent Junta42 blog.

Pulizzi recently attended a presentation by Jantsch; yesterday's post is a recap of the event, a must-read not only for small business marketers and entrepreneurs, but for anyone who is interested in making the most of online technologies to reach new clients. To reach someone with a need.

Despite the slightly awkward construction, we like this simple explanation of marketing - it brings your audience front-and-center: "someone who has a need." And it focuses on your job in the transaction: "getting [them] to know, like, and trust you."

In our particular context "someone who has a need" is easy to understand: people have a daily need for legal information and legal services. (You know this already.)

So the question becomes: how do you get all of those people to notice you?

Share your work. It speaks for itself as one of the best examples of your excellence and expertise.

And cast a wide net. Don't simply build a profile, upload two documents from a recent project, and wait for something to happen.

Be proactive - it's how to stand out in an online crowd. The more you share the more you increase your odds of making a connection with someone looking for legal information. That is the nature of content marketing. That is how to start a relationship with someone (a colleague, a new client, a referral)  that potentially leads to being known, trusted, liked - and we should add: employed.
 

So many of our contributors have interesting and distinguished histories. Here are just a few of them:

J. Hue Henry - "Some highlights of Mr. Henry's appellate practice include a case of first impression establishing a client's right to access his attorney's files, and other cases of first impression recognizing torts in Georgia for embracery (jury tampering) and breach of hospital bylaws. The appellate decisions resolving those issues are posted on this site [JD Supra]."

Thomas H. Clarke, Jr., Senior Partner at Ropers Majeski Kohn & Bentley - who previously served as Principal Consultant (Chief of Staff) to the Assembly Committee on Criminal Justice and worked for President Carter in the Executive Office of the President, Council on Environmental Quality (CEQ).

Michael Hamden - former executive director of North Carolina Prisoner Legal Services and co-editor, The Law & Policy of Sentencing & Corrections (7th ed. WestLaw American Case Law Series, 2005).

Gary B. Freidman, partner at  Greenfield Stein & Senior, LLP - former appellate law assistant to the Justices of the Appellate Division of the New York Supreme Court, Second Judicial Department.

G. William Hubbard of Hubbard Business Counsel - formerly an infantry officer in the U.S. Army in Berlin and, after law school, as a Staff Judge Advocate in Augsburg, Germany, where he prosecuted more than 100 courts-martial and managed the law office. Author and co-author of numerous publications in his field of practice, as business legal counsel to primarily closely held corporations.

Kristen Patty - legal ghost writer who clerked for for the Hon. James A. Pusateri of the United States Bankruptcy Court for the District of Kansas in Topeka.

Jay Bernstein of Kirsch, Gelband, & Stone - former legal clerk for the Ministry of Justice, State of Israel, in Jerusalem, and original founding member of the NJ Mass Disaster Legal Response Program, which has served families of the 9/11 Terror attack, and hurricane and flood victims in the region, giving free legal aid and services.

Jimmy L. Verner, partner at Verner & Brumley - former law clerk to the Honorable William C. Keady, Chief Judge, United States District Court, Northern District of Mississippi.

Stephen J. Hyland -  appointed by Governor Jon Corzine to the New Jersey Civil Union Review Commission, for which he is the Secretary. He was also appointed by the New Jersey Supreme Court to serve a two-year term on the Family Practice Committee of the Administrative Office of the Courts. In December 2007, Mr. Hyland was honored with a Distinguished Legislative Services Award by the New Jersey State Bar Association Board of Trustees.

David Newdorf of the San Francisco City Attorney's Office - earlier in his career took a one-year hiatus  to clerk for Judge Charles A. Legge in the U.S. District Court for the Northern District of California.

Michael W. Dolan - former law clerk to Judge Catherine B. Kelly, District of Columbia Court of Appeals.