You don't see this one every day. A lawyer is suing the opposing lawyer in a high profile controversial case about a teenaged runaway, claiming that the opposing lawyer defamed him, by saying in a TV interview that he was "unqualified" and "that he has terrorist ties." While the latter clearly could be defamatory (the former might be... but seems more like a statement of opinion, not fact), it does make you wonder if such a lawsuit really is effective in preventing "damage to his reputation." I would think that most people would recognize the statements in context, rather than automatically assuming they were true.

We've seen plenty of stories of review or ranking sites that get sued by people upset about their reviews, but one such site that seems to get extra special attention is Avvo -- and that's because it's a ranking and review site for lawyers. Soon after the site was launched a few years back, it was sued -- leading a judge to dismiss the suit, pointing out that rankings are opinions and opinions are protected by that old First Amendment thing. However, it appears another lawyer is suing the site, claiming libel among other things.

Avvo hit back in a blog post highlighting some history that the lawyer in question, Joe Davis, probably doesn't want to generate any more attention (such as being "twice convicted and spent eight days in the pokey") and suggesting that it's the desire to hide this info that is the real reason behind the lawsuit.

So, how does Davis try to get around the whole "opinion/free speech" thing? Well, he tries to find some factual errors in his profile -- such as the page claiming that he practices "100% employment/labor law," which is apparently not the case. That said, it's difficult to see how such an error amounts to libel. Also, apparently Avvo has the wrong address, which Davis suggests is a "misrepresentation." He also claims that Avvo's "failure to take into account" Davis' Board Certification (which is mentioned over and over and over and over again in the complaint as if that, alone, conquers all) is a "misrepresentation" as well.

From there, Davis suggests that various fluctuations he saw in his ratings over a period of a few days "obviously occurred based solely" on his "level of participation" on the site, rather than "what is in the public record." Davis also gets upset that his profile points people to other, competing lawyers, and claims that Google forbids a similar practice. Unfortunately, I believe Davis is simply wrong on this point:

Google's AdWords' policies prohibit AdWords users from doing the very same thing that Avvo.com does--that is, to hijack a competitor's name as a key search word to trigger the appearance of a competitor's ad next to the competitor's search results.

But Google actually does allow that and has fought an awful lot of lawsuits that it's usually won, saying that such a practice is perfectly legal. In fact, Google just recently changed its European policy to have it match the US policy in allowing greater use of trademarked terms in AdWords.

There's also a suggestion that by using Davis' photo from his own website, Avvo may have violated copyright and local Florida statutes on using images of lawyers. The full complaint is a bit rambling, and at times rather informal, which makes for some fun reading, but seems like the sort of thing that a judge might not appreciate:

There have been questions lately about whether or not it makes sense for jurors and judges to use Google in the court of a trial, but what about lawyers? Obviously, they can use Google in general, but what about in court to do instant Google background checks on potential jurors. That ABA Journal article notes that lawyers are increasingly making use of the tools to learn about jurors as quickly as possible:

"Last month I had 50 jurors, and as the court clerk read out the names, I had two people in the courtroom and a third person back at the office, with all three of them doing research," says Kiesel, a partner with Kiesel, Boucher & Larson. Junior lawyers also assisted, and Kiesel estimates the social media research for that case cost less than $5,000.

Apparently, in that case, the Google searches turned up some relevant points that caused a juror they otherwise would have accepted to get rejected. However, the article notes that jurors might get creeped out knowing that lawyers were immediately checking them out on Google, and wonders if judges may crack down on the practice (the lawyer quoted in the article insists that there would be no legal basis for a crackdown...). I can't see why it's really a problem. It's not really a privacy issue since they're looking up public information. Either way, it's yet another example of how basic search technology is showing up in the courtroom more and more, even if the courts aren't fully ready for it...

We've been covering the bizarre and somewhat ridiculous fight that The North Face is putting up against a kid who created a parody line of clothing called The South Butt. You can read through the previous stories if you haven't been following this, but at its most basic, this is a trademark dispute. The North Face is claiming trademark infringement, and in doing so, demonstrating that it has no sense of humor. However, the latest legal shenanigans from the lawyers representing The North Face are bordering on cruel. In early depositions, it appears that they are trying to drag the names of the kid who created The South Butt and his father (Jimmy and James Winklemann) through the mud by digging up any kind of dirt on them that they can.

Joe Mullin points us to the news of a contentious deposition of the father, where The North Face's lawyers started bringing up a variety of old business partnerships, including one with someone who had pleaded guilty to stealing money from clients. What that has to do with your everyday trademark dispute is not clear, but it certainly angered the father (and also resulted in claims of a conflict of interest, in that the same law firm had apparently been involved with that former business partner in some manner).

Then there's the younger James (better known as Jimmy), and here the North Face lawyers chose to ask him about being charged as a minor for possessing alcohol at a party last fall, as well as being arrested for having a small amount of marijuana (a charge that was later changed to littering). Jimmy admits that this was embarassing, since his father was unaware of these minor infractions, but he ended up confessing to his father before the news of the deposition came out.

But, honestly, what is up with The North Face? They never should have filed this lawsuit in the first place, as it only makes them look like a bunch of bullies. If they were really concerned about protecting the trademark from being considered generic, why not give the kid a super cheap license and enjoy people finding the whole thing amusing. Instead, they're not just aggressively suing this kid, but bringing up a whole bunch of totally unrelated things to try to embarass both the son and his father. The North Face has gone from just being big corporate bullies to being out and out obnoxious jerks.

A few years back, UK law firm Davenport Lyons made a splash by sending out a ton of "pre-settlement" letters to people accused of file sharing, threatening to sue them if they didn't pay a few hundred pounds. The law firm used a default judgment (i.e., a case where the defendant didn't show up) to claim that it had the law on its side and would sue and win. Of course, an investigation into the thousands of letters being sent found that plenty of innocent bystanders were being sent those letters as well -- which certainly raised all sorts of questions about the legitimacy of the effort. The negative publicity resulted in some high profile Davenport Lyons customers backing out of their relationship, and eventually a new entity called ACS:Law to pop up to continue the effort -- though, an investigation found that the documents used by ACS:law were created by Davenport Lyons.

Despite many calls for sanctions against the lawyers for taking part in an effort that has remarkable similarities to a traditional shakedown scheme, there had been little response from regulators. However Marcus alerts us to the news that two Davenport Lyons lawyers have now been referred to the Solicitors Disciplinary Tribunal by the Solicitors Regulation Authority. I'm not quite sure how this process works in the UK, but it seems like it's about time that someone was checking in on these activities.

You may recall recently that the Florida Judicial Ethics Advisory Committee issued an opinion saying that judges shouldn't use Facebook to connect with any lawyers. This made little sense since judges can, in fact, be friendly with lawyers in real life. There must be something in the water down there, as new rules from the Florida Bar are so broad that they could potentially ban lawyer blogs because of an attempt to more carefully limit how lawyers "advertise" (found via Michael Scott):

The substantive rules provide, among other things, that an attorney website can't "describe or characterize the quality of legal services being offered." Rule 4-7.2(c)(2) Thus, I can't tell you in this post that I'm committed to using my legal skills to provide positive results for my clients (even though this is true). And I can't give you information regarding my past results, so I probably shouldn't tell you the true information that I lost a case I argued in a Florida court as cooperating counsel for the ACLU in a "John Doe" case. Rule 4-7.2(c)(1)(F). I also can't include testimonials; therefore, I request any former students or clients not to post comments saying what a wonderful lawyer and/or professor I am. Dramatizations and many other creative marketing devices are also verboten. Of course, my personal concerns about the new bar rules are trivial when set beside those of all the Florida law firms who must now spend vast sums of money to revamp their websites to try to comply with the new rules, not to mention the concerns of non-Florida firms that hire Florida attorneys.

That same blog post, by Lyrissa Lidsky, reasonably points out that the First Amendment should protect legal advertising as long as it's not inherently misleading. Of course, this issue has come up in the past as well. Five years ago, we wrote about concerns that laws in Kentucky required "filing fees" for lawyers to pay for "each advertisement" that would make legal blogging in the state prohibitively expensive.

Earlier this year, we wrote about a lawsuit in North Carolina, where the judge friended one of the lawyers, and read and exchanged messages about the case with the lawyer on Facebook. That, obviously, seemed a bit extreme -- but what about just the plain old act of "friending" between a judge and a lawyer. Down in Florida, they've decided that's simply not allowed at all:

Whether a judge may add lawyers who may appear before the judge as "friends" on a social networking site, and permit such lawyers to add the judge as their "friend."

ANSWER: No.

That doesn't leave much room for ambiguity, does it? But, as Venkat Balasubramani notes, this is somewhat ridiculous. Judges and lawyers often have social relationships beyond the court, and pretending those don't exist just on Facebook seems pretty artificial.

My question to the advisory committee is whether this means that it's now inappropriate for a judge to have lunch with a lawyer friend, or engage in email banter with lawyer friends? Is attending the same party now off limits? I assume these actions would still be viewed as appropriate, given that lawyers and judges interact socially (and publicly) all the time. What's so special about Facebook friendship?

The economy still isn't doing so great, and that impacts everyone -- even lawyers. So what are they to do in weak times? Eric Goldman points out that in the past, they'd become bankruptcy lawyers, but this time around, it looks like some are realizing a more lucrative strategy is to get involved in patent trolling -- though they prefer to call it "IP monetization." This is, of course, just a continuation of the whole ridiculous focus on squeezing cash from unused or ignored patents, following the publication of the book Rembrandts in the Attic, which kicked off this effort.

From an economic standpoint, this activity is a pure dead weight loss on economic activity. There is nothing good that comes from it. You basically have companies that have ignored a patent they got for whatever reason, suddenly rediscovering it and using it to go after totally unrelated companies who actually innovated and brought products to market (almost always with no knowledge whatsoever of the questionable patent in the first place). And suddenly the actual innovators have to pay up to a company that did absolutely nothing with the invention.

It's difficult not to become even more cynical when you read stories like the following one. Sent in by Eric Goldman, it's about a state law in California that was mainly written by two lawyers: Joaquin Avila, a law professor from Seattle, and Robert Rubin, the "legal director" for the Lawyers' Committee for Civil Rights of the San Francisco Bay Area. So, here's the interesting thing: since this state law has been put in place (seven years ago), the only lawsuits have been brought by Rubin's committee or Avila and they've made themselves over $4 million with a few more lawsuits pending and a bunch more threatened (again, all from either Avila or Rubin's committee).

What a great deal: write a law, and then be the only lawyers to use the law to make millions.

As for the law itself, it was a law that apparently very few people were asking for -- requiring that state courts carve out specific districts that favor minority groups, so they are not excluded from local elections. Here's how the AP describes it:

The California statute targets commonly used "at-large" elections -- those in which candidates run citywide or across an entire school district. Avila said that method can result in discrimination because whatever group constitutes the majority of voters can dominate the ballot box and block minorities from winning representation. As a remedy, the law empowers state courts to create smaller election districts favoring minority candidates.

Officials in several California communities said they never heard complaints of voter discrimination until the lawyers stepped forward. In one case, the Tulare Local Healthcare District, now known as Tulare Regional Medical Center, was sued even though its five-member governing board is a rainbow of diversity -- two emigres from India, a Hispanic, a black and a white. The lawsuit argues Hispanics, who make up about a third of local voters, have been shortchanged.

Of course, there are many reasons why the exact makeup of a governing board might not match the exact percentage of the population (including the simple fact that most people vote on issues, not the ethnicity of the people they're voting for). But, even if there was a problem it seems highly questionable that the two lawyers who wrote the bill are now profiting tremendously from it and appear to be the only ones who do so.

It's stories like this one that make us so nervous about so much legislation. This is the type of law they create: it maysound good (who's going to argue against diversity?). But, the actual law appears to have been nothing more than a way for these lawyers to go around collecting millions, while disrupting communities and schoolboards, and sending their taxpayer money to these lawyers.

Doug Lichtman's latest "IP Colloquium" podcast is on the question of whether or not "content can survive online." Specifically, it's a discussion about "online content business models." Oddly, though, rather than having business model experts, it's a conversation with four lawyers, starting with Doug, and including Brad Smith, General Counsel, Microsoft; Scott Martin, Executive Vice President, Intellectual Property, Paramount Pictures; and Dan Cooper, Vice President, Legal & Business Affairs, MySpace. Lichtman starts it off, oddly, by stating -- as if fact -- that talking about business models online is depressing because there's just not much in the way of business models online for content. I think that's damning things a bit early in the process -- something that comes up again later.

While I realize that the podcast is a legal podcast, it still strikes me as odd to bring together four lawyers to have them discuss business models, when their expertise is not in business at all, but in the law.

The podcast starts out with a discussion on the Google Book search and settlement, but oddly no one even seems to give any credit to the fair use question. But, again, since these are lawyers we're talking about, there really isn't much of a discussion on business models around Google Book Search, but on legal questions -- including a hope that Congress steps in to solve it. Amusingly, Microsoft's Smith early on suggests that it's a question Congress could solve "if the industry got behind it; if copyright holders got behind it." Striking, huh? He basically admits how copyright law works in this country. It's not about what's best for the overall society or economy. It's not about the politicians fixing things where they see a problem. It's not about consumers. It'll happen if the industry gets behind it. Welcome to the way things work in DC. The rest of this part of the discussion is interesting -- and it's one (rare) case where I mostly agree with Lichtman, that as a resource, Google's Book search is incredibly useful, and we should figure out some way for it to happen.

From there, the discussion moves on to other business models, and quickly seems to head off in directions that I don't think are accurate from a business model standpoint. It starts off with two premises set forth by Lichtman, each of which I think is suspect. First, he claims that piracy is a problem because "you can't compete with free." Frankly, I'm sick of this argument because it makes no sense economically or from a business standpoint. Economically, saying that you "can't compete with free" is the same thing as saying you can't compete -- period. It assumes, falsely, that the only way to compete is on price, but the history of the economy shows that's not true. You compete on price or you compete on benefits, and competing on price is often a losing battle anyway. Saying "you can't compete with free" just means you only know how to compete on price. If that's the case, you shouldn't be in business.

And, to make that point clear, tons of companies compete on benefits, and allow other companies to offer lower priced offerings. The popular example, of course, is "water," whereby it's free (or near free) to drink out of the tap, but the bottled water business is a multi-billion dollar business. Why? It tries to compete on other factors -- such as convenience, quality or safety (though, there are arguments that many of these benefits are perceived rather than real). But it's true in just about any other business as well. In the automobile business, a BMW costs more than an entry level Ford, and that's because BMW is seen to have a lot more scarce value. Ford could "copy" BMW, but BMW has its reputation and some amount of prestige that Ford simply can't copy.

Anyone who's in business recognizes that you don't just compete on price. So why is it that so many seem to assume that the only way to compete in the content market is on price?

Lichtman's second premise is that online business models don't work. He says that Hulu hasn't been a success because it doesn't make as much as TV, and that if Hulu displaces TV we "won't have the money to pay for" expensive TV show production. He claims that even if Hulu is really successful, it'll never make enough money to pay for the production of a show like Battlestar Galactica. First off, huh? How does he know that? If Hulu is successful, it absolutely could pay for such production. Already, we're seeing that some of the online ad rates are higher than TV ad rates. Hulu's barely been around for two years at this point. I'd be willing to bet that Hulu's revenue today greatly exceeds the revenue of television two years after it was invented. Give it time, Doug!

He then jumps on Redbox -- sarcastically saying "we're renting movies at a dollar per day?" Suggesting that this will never sustain the development of movies. Really? I always find it amusing when people insist that problems in the DVD market will mean the death of Hollywood. It really was just 25 years ago that Hollywood insisted that the VCR would kill the industry (Boston Strangler, anyone?). Now they finally get their "original" wish, and find that putting movies on recordable media is going away, and it's the worst thing in the world?

Either way, the economic fallacy that Doug seems to be relying on here is twofold. First, he assumes that early business model experiments are set in place and no further innovation will occur that allows them to flourish. He assumes that the markets won't grow, and some of these experiments won't click and get much bigger. Second, he seems to assume that the old revenue numbers for these industries need to be sustained. He doesn't consider that the old revenue numbers may have been a result of monopoly rents, limited competition or technological limits. Markets change all the time, and usually what comes out in the end is much better (subjective, I know, but I'm a believer that the world is a better place today than it was 25 years ago -- and that it will be even better 25 years from now).

But, of course, no one challenges him on this. Scott Martin at Paramount, of course, worries quite a bit about piracy of movies. While he admits (finally!) that he's just the lawyer, rather than the business guy, he discusses it in the terms of adding more windows to movie releases, rather than any discussion of adding more value to the product, or giving people reasons to buy beyond just the content. Then Martin repeats the myth that you can't compete with free, but leads in with a different myth -- claiming that the "copyleft" people say that piracy would go away if they just priced their movies better. That's a strawman argument. Perhaps someone out there made that argument, but it's hardly common. Then he says that "the idea that if we charged $2 a download instead of $10 a download, we'd get rid of piracy is a myth." Sure, it's a myth, but no one said that. You can't get rid of piracy. No one thinks you can get rid of piracy. No one suggested anything you do would "get rid of piracy." What many of us are suggesting is that you can build business models where that piracy isn't a problem. Even the people suggesting you just charge $2 instead of $10 aren't saying it would "get rid of piracy," but that at $2, enough people would pay for it that it would increase profits beyond what the $10 DRM'd version gets you.

Anyway, the discussion goes on from there, including a discussion of the DMCA that again doesn't make much sense to me, but the business/economic analysis throughout doesn't strike me as accurate at all. It's still an interesting discussion, but frustrating because I wish there were at least someone on the panel who would challenge a lot of the "accepted wisdom," put forth by everyone, that doesn't seem to be accurate. Brad Smith, at one point, does point out that this is all a "revenue" problem, and does a pretty good job describing the revenue problem... but then falls into the trap of saying the law needs to "fix the piracy problem" because without that, business models can't be built up.

The last analysis I'll talk about that is again faulty from an economics standpoint again comes from Scott Martin at Paramount, where he tries to defend the importance of DRM, noting that if he flies into JFK he has various price options on transportation: he can buy a car, rent a car, take a cab or take a train. So there are price differentials. He says that without DRM, content is like saying his only option is to buy a car. That is, if he had DRM, they could offer different "rental options" for content, with "one day pricing or one week pricing." But that's totally wrong again. There's a reason for the differential pricing in the transportation options: it's related to the marginal cost of each option and the competitiveness of the market. That's what sets the prices. But with content, the marginal costs are zero, so what he's doing is trying to set up an artificial barrier to pretend the markets are the same.

While I like listening to these discussions, I just find the economic fallacies frustrating.