Join the Cyberspace Law Committee at the ABA 2004 Annual Meeting

Fry, Ritter, and Boss Receive Award

2004-09-02T22:48:00.000-05:00

Each year, the Committee selects one or more recipients of a Cyberspace Law Excellence Award. This year's winners were Pat Fry, Jeff Ritter, Amy Boss were present to receive the award.

Land is the only thing in the world that amounts to anything.

2004-08-09T22:42:00.000-05:00

Thank you Atlanta for wonderful hospitality and a warm welcome to us all. We bid you goodnight.

Oh The Places We've Been

2004-08-09T21:54:00.000-05:00

The free tracking program we're using to track visitors, page loads, repeat visitors, etc. to the Blog has shown a surprising array of activity. We've received visits to the Blog from the following locations:

United States
Australia
Canada
Denmark
Germany
Israel
Italy
Japan
Netherlands
Norway
Portugal
Singapore
Sweden

The power of the Internet to reach new audiences never ceases to amaze us.

We've opened up the tracking site so that everyone can view the stats:

View Hits

Final Wrap for Committee Leadership

2004-08-09T15:46:00.000-05:00

Monday afternoon, Vince and Candace called to order the last official meeting for the Committee at the 2004 Annual Meeting. Vince reminded of us some of the recent changes to the committee leadership structure, including:

The Internet Jurisdiction subcommittee and the Subcommittee on Global E-Commerce are merging into a single group, to be named at a later date. Michael Geist and John Gregory will co-lead the group (and will certainly propose that an upcoming Winter Working Meeting be held somewhere in Canada -- will the Minneapolis contingent be able to bear with the competition?).

John Lunseth is taking over the Programs chair from Hank Judy, and John has already begun to schedule out the Spring and Summer sessions for next year! Don't hesitate to get your ideas before John if you wish to be on the podium in the coming year.

Mike McGuire is passing on some of his current portfolio -- the seat on the ABA Publications Board -- to Eric Goldman. Mike will continue to hold the publications chair for the Committee, and has been tasked to expand the Committee's use of technology to communicate and work with its members (including the continuing expansion of this very blog!).

We were joined during our meeting by the Chair of the ABA's Diversity Committee, Jackie Parker. Jackie and Vince reminded all of us of the ABA's -- and the Committee's -- standing goals to expand and maintain the diversity of our membership, leadership and those who present and create product for our committee. Jackie reminded us of many of the tools available to our groups. For example, the ABA and the Diversity Committee stand ready to provide references for potential speakers or authors with specific interests and areas of practice to join a panel. The ABA has programs to assist potential new members of our Committee with travel expenses, such as an outstanding program in conjunction with the Young Lawyers Division. If you would like to discuss any of these programs or ideas, be sure to contact Jackie: jacqueline-parker [at] bankone [dot] com.

And with that, we had planes to catch, and bills to pay. The sessions were officially closed.

So long, and thanks for all the fish!

2004-08-09T15:42:00.000-05:00

The ABA Cyberspace committee meetings have come to an end in Atlanta. My personal, heartfelt thanks to those of you who participated in-person, and thru the blog (we THINK we've had on the order of 500 readers over the past week). My special thanks to blog-commanders Michael Fleming and Michael McGuire, and to outgoing program-commander Hank Judy.

We've made a great deal of progress in Atlanta. Come join us at our winter working meeting at Stanford, January 28-29, 2005 (where we'll no doubt run another blog, and a wiki, too).

Vince

Ephemeral Nature of Blogs

2004-08-09T15:29:00.000-05:00

Don't Forget -- These Blogs are meant for Real Time discourse, but are not well designed as long term archival tools.

Thus, remember the Law Hub -- the Cyberspace Committee's unofficial official home. Many of the materials you see discussed here are already posted there, and more to follow. If you would like to become a member, contact Vince Polley at vpolley <@> slb.com.

New Sci Fi Book Plays out Cyberspace Law Issues (item moved)

2004-08-09T10:16:00.000-05:00

In the interest of space management, we've moved McGuire's fun (but long...) post on the brave new world of fictional electronic contracting (fiction about electronic contracts???) down to here.

Epstein Demo of New Web Site

2004-08-09T09:51:00.000-05:00

Jason Epstein demonstrates the new Model Corporate Website tool before the CAIT meeting on Monday morning.

CAIT

2004-08-09T09:20:00.000-05:00

Vendor Liability for Security Flaws

Don Cohn started the meeting with a description of a suggestion for a new project to create a standard set of reps and warrants that companies could demand from software vendors relating to the lack of security flaws in the vendor's products [Watch 6mb Quicktime Movie of Don]. If you're interested in this as a potential project, please contact Don.

Assessing the Security Risks of Third Party Vendors

Continuing the general subject, Michael Fleming then described an existing project that focused on how to conduct due diligence or assessments of third party vendors. GLBA and other laws now require that some companies only use vendors who have demonstrated they are capable of maintaining appropriate safeguards for data.

Mike demonstrated a sample self-assessment checklist to start the project. It will soon be loaded to the LawHub. Given the draft nature of the document, it will not be publicly available until later.

The interesting twist on this project is that Fleming plans to use a Wiki for group members to comment on and to develop the text for the security document. He showed a live Wiki he has created for the project. This will be a fun way to try out one of the latest collaborative authoring tools. Group members will be able to edit the document, show their edits to others, and the group can "vote" the changes up and down. This will be a fun experiment. [LINK TO BE POSTED LATER]

The Wiki is being hosted by editme.

Demonstration of the Model Web Site

Jason Epstein then demonstrated the current version of the Model Website. It will eventually be packaged as a book and CD combination for publication and sale by the ABA. The Model Web site is intended for use by lawyers and businesses to help them understand the legal challenges involved in operating a Web site to sell goods or services. It contains sample Web pages with annotations and pop-up text to identify issues and suggest ways of resolving them.

The group was in general agreement that this was one of the most innovative projects we've had in a long time. It's interactive, it breaks our traditinal publication models, and it presents material in a whole new way.

ABA Model Trading Partner Protocol

2004-08-09T07:29:00.000-05:00

The group met this morning to enjoy Chocolate (yes, Jamie came through on the advertised promise) and work towards pushing the project across the finish line. The Model Electronic Commerce Trading Partner Covenants (2004) are nearly finished.

The group today included a few new members, and it also demonstrated a unique phenomenon that many of us enjoy about the Cyberspace Law Committee--the group included private practitioners, law professors, government regulators, representatives of standards-setting bodies, and in house lawyers. Together, they continued to grapple with the challenges of how to create contracts that will actually facilitate commerce and that won't stretch the current legal frameworks too much. Quintessential work of the Cyberspace Law Committee.

The draft of the 2004 Update is available here.

And, because we have the capabilities, but we haven't done it yet, we took a short Quicktime movie at the Working Group meeting. For history's sake. It's safe for viewing at work or in public places.

Working Group on Electronic Contracting Practices

2004-08-08T15:44:00.000-05:00

The Lottery Case
The Working Group opened its meeting with a discussion of unilateral modifications of contract terms. The first item for discussion was a Michigan case involving the interpretation of a contract for a subscription to a lottery. Paulsen v. Bureau of State Lottery, 421 N.W.2d 678 (Mich.App. 1988). The plaintiff purchased the ability to play the same lottery number for 52 drawings. The contract clearly stated it's terms were subject to the rules and directives of the Bureau of State Lottery. After the contract was signed, the Bureau decided to hold drawings twice a week, rather than once per week. Thus, reducing the period of weeks, but not the number of drawings, in which the Plaintiff would participating in the lottery with their pre-chosen lottery number. The plaintiff relocated before the change in terms occurred and did not receive the mailed notice of the change from the Bureau. Later, the Plaintiff's regular lottery number was selected in a $3.6 million lottery. The Plaintiff notified the Bureau her number was selected. The Bureau responded that her pre-purchased 52 drawings had all been used a few short weeks prior. The Plaintiff sued and lost. The court held the change in the lottery schedule was not an impermissible modification of the contract and that making the contract subject to the rules, regulations, and directives of the Bureau was not unconsciounable.

Effective Email Notices
The group also discussed a recent case in Massachusetts in which the court held that email was not an effective way to provide a binding notice to company employees. See It's Official--You Don't Have to Read Your Boss's Emails (Steptoe & Johnson’s Ecommerce Law Week, 3 July 2004).

Elaine's Article
Elaine Ziff and Hawa Allan of Skadden Arps distributed a recent paper they concluded for the Working Group on Using Opt-In or Opt-Out Mechanisms to Obtain Customer Assent to Modifications of Standard Form Electronic Arguments. The article contains numerous examples of real situations where these principles were at work.

John's Article
During the meeting, John Tomaszewski commandeered my computer and dug up an old article he wrote many years ago on a similar topic. John P. Tomaszewski, The Enforceability of Adhesive Arbitration Clauses in International Software Licenses, 3.1 J. Tech. L. & Pol'y 4 (1997).

Novation?
The Group also mentioned that we may want to look closely at the applicability of the legal doctrine of novation. In other words, when terms change on a Web site, are you modifying a prior agreement or are you entering into a new agreement?

Next Steps
The group will probably begin working on a detailed draft of a PowerPoint presentation for use at the January meeting. We will likely create the presentation draft using the LawHub' collaboration tools. Look for an announcement to the group via the listserve.

Adware, Spyware Presentation

2004-08-08T14:32:00.000-05:00

When you get two opposing lawyers from real, pending cases, you almost always have an interesting time. The Adware presentation today was no exception. Terrence Ross of Gibson, Dunn, and Crutcher and Celia Goldwag Barenholtz of Kronish Lieb Weiner & Hellman sparred with one another and recapped the debates of many of the cases involved Gator and When U. The audience was treated to a very good debate on the issues.

The other presenters, Jeffrey K. Rohrs, the President of Optiem, Neil Smith of the Howard Rice firm also provided excellent background. The additional PowerPoint materials from the presentation will soon be avaialble on the LawHub.

John Ottaviani of Edwards and Angell and Eric Goldman moderated.

The advance presentation materials are available here. [ABA Web Site ID Required]

WG on Transferrability of Electronic Financial Assets

2004-08-08T13:28:00.001-05:00

At the Working Group on Electronic Financial Assets' meeting co-chair Linda Rusch gave a presentation on current industry activity with respect to electronic bills of lading and warehouse receipts. Apparently, they are in use in fivc settings, often based on private agreements and special regulatory provisions, rather than relying on the provisions of the UETA and revised Article 7. These settings include the cotton warehousing industry (eCotten), the Bolero system, eCOPS (the New York Board of Trade, for warehousing of coffee and cocoa), transmission of information from shippers to carriers, and an XML program developed for petroleum products. Linda prepared a handout titled Examples of Electronic Document of Title Systems. You can view the document by visiting the LawHub page for the Subcommittee on Electronic Financial Services [Members Only]

However, the current (and long-standing) problem to be solved is how attorneys can reliably assess whether a computer system meets the "control" test in UCC Article 9, UETA, and E-Sign. Today's discussion focused on how attorneys need to interact with technologists to meet this need, whether to generate a legal opinion, or to perform due diligence, or to examine a witness in a bankruptcy case.

This question has a real world application to the question of how to rate securities backed by transferable records. Apparently, chattel paper issuers are starting to take advantage of Revised Article 9's rules on electronic chattel paper and securitizing the chattel paper. They need the resulting securities rated and but the question is how to do it. Worse, the law firms for the issuers are not at all sure how to give legal opinions on the systems.

It was the most entertaining meeting of the working group in years.

RFID

2004-08-08T12:02:00.000-05:00

Radio Frequency Identification (RFID)

Ben Hayes, of Kirkpatrick & Lockhart, gave an excellent, quick presentation on how RFID technologies are developing and some of the privacy challenges that have been raised. His presentation will be available here soon.

He even brought with him samples of the RFID hardware. [The picture shows about 50 small RFID chips in a vial] We were all amazed at how small and cheap the devices are getting. If you have questions, contact Ben at bhayes <@> kl.com.

CAN SPAM

2004-08-08T11:47:00.000-05:00

Elizabeth Bowles began the presentation with a history of the Spam problem. Being with an ISP, she has a great deal of detail about how much Spam is flowing through the networks, the costs, and burdens it imposes.

Michael Fleming then gave an overview of the Can Spam Act itself to lay the foundation for the ethical discussions by William Denny and Henry Judy. Hank then gave real life examples of how his firm has developed policies and procedures, and new tools, to comply with the Can Spam Act. The PowerPoint slides contain good Web site screen shot examples.

Program materials are here [ABA ID REQUIRED]. The PowerPoint slides are available on the Law Hub which we invite you to visit, or you can download them directly here.

A Smattering of Blogs on Law and Technology

2004-08-08T10:34:00.000-05:00

UPDATED If you're following our blog, we thought you might like to explore some of the blogs out there that relate to law and technology and other interesting things.

Boing Boing
www.boingboing.net
A Directory of Wonderful Things

Bloglines
http://www.blawglines.com
Site for searching, subscribing and sharing news feeds

Blawgchannel
http://www.blawgchannel.com
Great way to find legal blogs (blawgs)

LessigBlog [currently being guest hosted by Tim Wu]
http://cyberlaw.stanford.edu/lessig/blog

PDF for Lawyers
http://www.pdfforlawyers.com/
How to use PDFs in the practice of law

Legal Blogs with XML Feeds
http://radio.weblogs.com/0104634/stories/
2003/02/15/legalSourcesWithXmlFeeds.html
A rather complete list of law-related blogs that provide XML feeds for syndication

Portals and KM
http://billives.typepad.com/portals_and_km/

The Importance Of
http://www.corante.com/importance
Innovation, Creativity, Law

Tech Law Advisor
http://techlawadvisor.com

Payments News
http://www.paymentsnews.com

InternetPolicy.net
http://gipi.typepad.com/internetpolicy/
Weblog of the Global Internet Policy Initiative (GIPI)

Privacy.org
http://www.privacy.org

Technology Review
http://www.technologyreview.com/blog/index.asp

CopyFight
www.corante.com/copyfight
IP and Internet issues

Excited Utterances
http://excitedutterances.blogspot.com/
Law firm knowledge management

Greplaw
http://grep.law.harvard.edu/
Internet law developments

LawMeme
http://research.yale.edu/lawmeme
Technology issues

TechLaw Advisor
http://techlawadvisor.blogspot.com/

Ernie the Attorney
http://www.ernietheattorney.net/

Bag and Baggage
http://bgbg.blogspot.com/

Cyberspaces: Words-Not-Deeds
http://www.cyberspaces.org/webzine

Use the comment feature below to suggest additional blogs to add to the list.

There's Always Coffee

2004-08-08T09:55:00.000-05:00

Continuing a new Cyberspace Law Committee tradition, I locate the best coffee shops in the towns where we have meetings, and I force a few people to come with me. Last nigth after Pura Vida, I forced Jackie Scheib, Mike Gordon, and Ben Beard to join me in a late night cup of excellent java at San Francisco Coffee Roasters. True artisanal coffee roasters with a barista capable of creating art with the pour.

CLC Forum -- The VoIP Revolution and Key Effects on Legal Practice

2004-08-08T08:48:00.000-05:00

Have you ever used your computer to make a phone call? No? Have you ever used it to send instant-messages? Well, IM technologies (which typically also include a voice option) are exactly those used in providing Voice-over-Internet-Protocol (VoIP) service. This morning's panel of Federal and State regulators, ISPs and telcos, generally seems in agreement that low barriers to entry, an intense competitive environment, and the certainty of rapid technological change all should support a hands-off stance for the regulators. Still, some State PSCs have begun general regulatory efforts, and there is nearly universal agreement that VoIP services should help fund "universal service" policies.

Even in a hands-off context (for as long as that lasts), here are some of the issues: conflicts among/between various PSC who DO begin to regulate; how to provide 911 or other emergency services?; should law enforcement interception of VoIP voice-traffic be facilitated by ISPs and other VoIP providers, and how can smaller providers bear the associated costs?

The Cyberspace committee's VoIP initiatives (currently jointly housed under the subcommittees on Connectivity and Internet Law) certainly will continue and evolve. If you'd like to learn more, first login to the Committee's LawHub (free registration required, but available only to Committee members) and then click here. Or, contact any of the following (the co-chairs of the two cyberspace parent committees): Richard Keck, David Satola, Hank Judy, or Tom Laudise.

IP Subcommittee Meeting

2004-08-08T08:32:00.000-05:00

The IP Subcommittee, chaired by Eric Goldman and John Ottaviani had an early morning meeting. Quite lively despite the hour. Turning first to the subcommittee's open source project, Ottaviani announced the subcommittee has completed a review of over 50 open source licenses. Discussions on what to do with this vast body of knowledge focused on organizing the data for use in other projects, providing a resource for lawyers doing M&A due diligence; and providing a survey of open source license types for companies thinking of using an open source licensing structure.

The subcommittee's e-mail newletter, CIPerati, is now on its fourth issue. Edited by Jonathan M. Eisenberg and Craig S. Rutenberg of Manatt, Phelps & Phillips
each newsletter has featured 3-4 really great practical articles. The link above can be used to view the back issues or subscribe if you are not currently getting the newsletter.

New articles are always needed for CIPerati and anyone interested in submitting should contact Eric, John, Jonathan or Craig. CIPerati is a great way to republish one of those articles written for a firm website or newsletter.

The meeting also included a great discussion on the subject of clients' problems with search engines (read Google) and the funny games they play. Words like "Google bombing" and "bridge pages" were tossed around with utter abandon. Apparently, a number of the participants have had a lot of client activity in this area and the subcommittee will be looking at potential projects. Volunteers are always welcome.

Long Live Pura Vida

2004-08-08T07:50:00.000-05:00

The group had a very fun evening last night at Pura Vida for the Annual Cyberspace Law Committee Dinner. Congratulations to Ms. Scheib (we're in Georgia afterall) on her efforts to set up the dinner.

The food was great. My only criticism was that the wine, beer, and sangria was flowing a bit too freely.

Thanks as well to Hank Judy, a partner at the law firm of Kirkpatrick and Lockhart that graciously donated funds to help keep the costs of the dinner as low as possible for the Committee. Thanks Hank, and thanks K&L.

We'll have pictures later, as soon as we find a one hour photo developing place that's open on Sundays in downtown Atlanta.

Getting Paid in the 21st Century

2004-08-07T14:53:00.000-05:00

As a lawyer who doesn't understand the laws of gift cards, gift certificates, money transmitter laws, and other seemingly arcane and esoteric areas of the law, this program was great. I came away with the following general conclusions:

I'm never going to operate anything that might walk, talk, or quack like a money transmitter operation.
If a client ever does anything like that, I'm not going to be their lawyer; I'd screw it up.
Gift cards may be riskier than I thought.
States don't seem to understand these issues very well, but they sure seem to be passing a lot of laws on the topics.
More laws are coming. They will probably be worse, and cause even more confusion.
If you're in the business of moving a lot of cash (like the US Govt), you can save a lot of money by switching to stored value cards.

Here are the program materials. [ABA ID REQUIRED]

Consumer Protection working group projects

2004-08-07T10:20:00.000-05:00

After several years co-chairing the working group, Jean Braucher and Mark Budnitz have handed over the reins to Don Clifford from the Univ. of North Carolina. When you see Jean and Mark, be sure to thanks them for their pioneering work. Come meet and welcome Don at the January 2005 winter working meeting in Palo Alto.

The extant consumer online shopping educational resource, SafeShopping, was developed by the working group in 1999/2000, and is widely used by consumers (especially around holiday shopping periods). It's time to take another look at the site to make sure that it remains a relevant, accurate resource. If you're interested in participating (or if you spot errors there or have ideas for additions), please contact Don or Mark. Also, we're considering asking other organizations (like Consumers Reports, the consumer-protection divisions in State Attorneys Generals offices, etc.) to link to SafeShopping.org (as has been done by BBBonline).

Adware/spyware, SPAM, computer viruses and firewalls -- consumers are afflicted by these, but without in-house support from sophisticated corporate/lawfirm IT organizations. Much like SafeShopping.org, the working group is assessing a new project to develop consumer education tools, information, and other resources that will demystify these areas and help consumers protect themselves. Mark and Don are beginning to outline the scope of this project -- please email them with suggestions (e.g., should the project also deal with identity-theft?).

Join the Law Hub

2004-08-07T09:47:00.000-05:00

The Cyberspace Law Committee has an informal pilot Web space that it uses to exchange information, host discussions, etc. If you aren't already a member, check it out. http://lawplace.metadot.com . If you would like to become a member, contact Vince Polley at vpolley <@> slb.com.

Vince's New Gig

2004-08-07T09:37:00.000-05:00

After his pending retirement from Schlumberger, Vince will get fully behind his new business venture. He'll be heading up a new Knowledge Management company called KnowConnect.

Cybersecurity and Privacy Subcommittee

2004-08-07T09:15:00.000-05:00

Information Security Guidebook for Directors

Marc discussed one possible project that was discussed at the Winter Working Meeting to create a guidebook of sorts for corporate directors that identifies information security risks and gives them tools to help manage those risks.

If you're interested, contact Marc (see contact information below). You can also track developments on the Law Hub page dedicated to this Subcommittee.

Cybersecurity Summitt

Before the meeting, Marc Pearl, Co-Chair of the Subcommittee distributed a a working draft template proposal for the Cyber Security and Privacy Summit that our Cyberspace Committee Task Force has been discussing. Hank Judy, our co-chair, Ray Gustini, and Marc have been working on developing this proposal that would bring together some of the critical sector entities for a one-day invitation-only program to discuss in small facilitated groups new conceptual approaches to the business and policy issues surrounding information-sharing, data collection/distribution, the balancing of security and privacy rights, etc.

They hope to hold the event in early 2005 and therefore need to begin to put the pieces together as soon as possible. A sub-group of the Task Force will meet during the ABA Meeting in Atlanta on Saturday, August 7th in the Atlanta Hilton's Grand Ballroom A - 2nd Floor - immediately following the "Getting Paid in the 21st Century" program - at approximately 4:30pm to begin planning for the Summit.

Please let Marc know if you have comments on the "template-in-progress." In particular, think about procedural issues (such as possible co-hosts, location, timing, etc), as well as the possible sector experts to invite to participate in the Summit.

If you would like a copy of the proposal, contact Marc at mpearl <@> itpolicysolutions.com . You can also view information about the Summitt on the Law Hub. Or, you can track him down at the meeting and talk to him here. He looks like this:

Open Source Meeting at 4:30

2004-08-07T08:38:00.000-05:00

The IP Subcommittee will have a short informal meeting on its Open Source project at 4:30 on Saturday. Meet at the concierge desk in the lobby of the Hilton.

Last month, about 8 volunteers reviewed more than 50 different open source licenses, analyzing their terms. The purpose of today's meeting will be to discuss the different things the subcommittee can do with the work product to date.

Programs and Publications

2004-08-07T08:10:00.000-05:00

The Programs and Publications Subcommittee didn't actually meet. However, there are a few substantive things that I wanted to share/ask of the members of the Committee. Please let me know if you have an interest in any of the topics below.

eNewsletter
The Business Law Section has created a template for the publication of electronic newsletters by the Committees. We are looking for someone who is interested in using the template to create an electronic newsletter for the Cyberspace Law Committee. Because we have so many existing publication venues (the Blogs, the Law Hub), we should be able to easily find content that we can re-purpose. If you're interested, contact McGuire. Here is a sample of the new template formats showing The eNewsletter published by the Consumer Financial Services Committee is a good example of the new format.
Survey of the Law of Cyberspace
For next year's Survey in The Business Lawyer, we're going to try something a bit different. We're going to identify 4 or 5 subcommittees who will prepare short summaries ("surveys") of the developments in their particular areas. We need one or two authors for each Subcommittee who will take responsibility for preparing the survey pieces.
Publications Board
Eric Goldman will be replacing me on the Publications Board for the Business Law Section starting Sunday. If you have questions about the process of publishing books by the Section, please see Eric. He doesn't know much yet, but he'll learn quickly.

Winter Working Meeting Set

2004-08-07T07:48:00.000-05:00

The time and place for the Winter Working Meeting have been set. We'll all meet in Palo Alto on January 28 and 29. Current plans are for us to hold the meetings on the Stanford Campus. More details will follow.

Is Blogger "Snooping" on our Posts?

2004-08-07T07:41:00.000-05:00

Blogger provides this web service to host and run our Blog for free. The trade off is that Blogger serves up two small ads at the top of every page view. If you have been logging into the Blog regularly, you'll notice the ads seem to be based on the content of the posts to the Blog. The two most common ads are for hotels in Atlanta and for wireless lan security products.

I'm sure I agreed to this when I didn't read the user terms and accepted them. But, it's interesting. No?

It's also very similar to what Google (the owner of Blogger) is doing with its by-invitation-only GMAIL service. I have an account, and the ads are targeted to the words in my email messages.

So, let's all be careful about what we talk about in our posts.

Committee Forums for 2004 Annual

2004-08-07T07:40:00.000-05:00

Eric Goldman gives a fair and balanced presentation on Spyware and Adware -- one of the Mini Programmes from this year's main Committee meeting. Program materials are here on the LawHub [Members Only Area]

Monday morning, TPAs and the legal effect of cursory mentions of chocolate

2004-08-07T07:20:00.000-05:00

Monday, August 9 Update

Jamie came through on his promise, and chocolate was indeed a part of the meeting on Monday morning in the form of various elegantly wrapped chocolate covered things.

The Joint Task Force on Model Trading Partner Protocols is finishing up its 2004 revision of the 1990 Model Trading Partner Agreement this Monday, August 9th, at the ABA Annual Meeting, in the Gwinnett Room on the second floor of the Atlanta Hilton at the precarious hour of 8 AM.
This accounts for the appearance at this morning's Cyberspace Committee meeting of fluorescent pink bulletins reading as follows:

TRADING PARTNERS
THE U.C.C.
THE LAW OF CYBERSPACE
WORLD PEACE THROUGH E-COMMERCE
CHOCOLATE
THE FINAL CHAPTER
Gwinnett Room, 2nd Floor
8 AM MONDAY

The original 1990 work was a seminal model agreement, accompanied by a study of then-emerging electronic contracting methods, that have formed the foundation for many later statues, rules and commercial practices including UETA and the e-Sign Act. We are finishing up the 2004 update just in time to commemorate the honoring of the original MTPA authors as this year's recipients of the Cyberspace Excellence Award.

Join us on Monday and find out whether an unamplified reference to "chocolate" in a unilateral instrument is (a) an offer susceptible of enforceable acceptance; (b) merely a moral commitment; or (c) just a reprehensible ploy to get you into the meeting room.

Blogging the Midnight Oil

2004-08-06T23:25:00.000-05:00

Was that a trattoria or a night club?

2004-08-06T22:55:00.000-05:00

On Friday evening Richard Keck and his firm, Troutman Sanders, hosted a cocktail party for members of the Cyberspace Committee. People had such a terrific time mingling that the firm eventually suggested we move on to our next destination. So Richard led a party of 14 cyberspacers to Il Localino, an Italian restaurant on North Highland Ave. Or was it a disco on North Highland Ave? All I know is that the meal was served "family style" with copious food and drink. Sometime during the appetizers the Bee Gees came on with
Staying Alive! It was largely a group activity after that - with the music ranging from Barry Manilow's Copa Cabana to Frank Sinatra - the group and other guests at the restaurant (including the head coaches of BOTH the Atlanta Falcons and the Atlanta Hawks) were grooving - on their feet and on the chairs. After that the Frank Sinatra "rat pack" party hats came out, and it was all we could do to keep Candace Jones and Scot Graydon from dancing on the table. Richard Keck and Jackie Scheib were dancing with the wait staff and the performance MUST have been good because they were each presented with red roses by the staff at the end of the night! Elizabeth Bowles treated the group to some salsa dancing. Mike Gordon kept asking for a "Freddie Mac" tune - but had to settle for shimming to Dancing Queen by ABBA. Kathy Porter, Mike Powers and John Ottaviani kept ordering more wine bottles. Tom Laudise offered to pay for the entire evening on Lenny Nuara's credit card - after we convinced him not to do that, he decided to make it up to us with a stirring lipsynch rendition of I WILL SURVIVE.

CORRECTION: As of this morning John Ottaviani claims it was Barry White, not him, that kept ordering more bottles of wine. Or something like that. I will need more coffee before true coherence sets in.

FURTHER CORRECTION: I am informed that the Atlanta Falcon's coach was not, in fact, in the restaurant. Simply the imagination of a confused fan fueled by too many glasses of Chianti.

Thank you Troutman Sanders

2004-08-06T22:04:00.000-05:00

Thanks to Richard Keck and Troutman Sanders, LLC for hosting a great little reception with Sam Adams beer from my hometown of Boston. In attendance were e-commerce luminaries Tom Smedinghoff and Sci-Tech chair elect Richard Field. I tried to crash the other reception on the floor below, but they wouldn't let me in. Guess I wasn't wearing a tie.

Global E-Commerce Policy Subcommittee Meeting

2004-08-06T17:03:00.003-05:00

Among other things, the subcommittee discussed a project to identify existing treaties that would constrain (or be constrained by) the emerging UN treaty project (by UNCITRAL, Working Group IV) on "Legal Aspects of electronic commerce".

Here are subcommittee members Hal Burman (co-chair), Bill Luddy and Jamie Clark.

Cyberspace Committee cocktail party -- Friday, 8/6 at 5:30 pm

2004-08-06T16:30:00.000-05:00

Thanks to the generosity of Richard Keck and his firm, Troutman Sanders LLP, there will be a cocktail party Friday evening at 5:30 pm at the offices of his firm for members of the Cyberspace Law Committee to meet members of the Georgia State and local Bars who are involved with committees on Technology, E-Commerce and Intellectual Property.

Troutman Sanders’ offices are at 5200 Nations Bank Plaza, 600 Peachtree, NE, only about a quarter mile from the Atlanta Hilton (map). There will be signs at the entrances to the building directing you to the appropriate floor. A Big Thanks to Richard and his firm for this generous contribution to the Committee’s activities during the meeting!

Vince

Track the Stats for the Blog

2004-08-06T16:18:00.000-05:00

If you want to see who's visiting the blog, how many people are visiting, etc. you can view the stats provided by StatCounter. Click here.

50 Unique Visitors today:

2004 Meeting of Officers, Council and Committee Chairs

2004-08-06T13:29:00.000-05:00

On the LawHub (lawplace.metadot.com) I've just uploaded the PowerPoint presentation from this afternoon's meeting of the Council--which is the governing body of the Business Law Section--together with a description of interesting slides (congratulations to Tom Vartanian!). If you look at this now, you may see parts of it BEFORE the Council (the presentation is happening as I post this, and we're a little less than half-way through).

Here is a direct link to the LawHub, where you can download this presentation.

2004clcc-rants.blogspot.com :: A Separate Blog for Personal Opinions

2004-08-06T11:54:00.000-05:00

After reading through the user terms for the Hilton's WiFi network, I just couldn't help myself. I had to rant. It's got lots of rather odd (okay, I'll say it, stupid) terms. I didn't want to clutter the unofficial blog with a lot of personal chatter. So, I created a second blog. The posts are here:

Overkill on the Hilton Wi-Fi

For What It's Worth -- the Good, the Bad, and the Ugly

2004-08-06T11:36:00.000-05:00

Throughout the meeting, Mike and I and others will collect a probably useless list of tidbits about the meeting. Here goes:

RECOMMEND IT

The Portabello Mushroom Sandwich at the Hilton Cafe
A restaurant called Dailey's just a short walk from the hotel. Ask the Concierge

STAY AWAY FROM IT

Nothing yet

HELPFUL HINTS

Nothing yet

Electronic Contracting Practices Group Meeting

2004-08-05T13:54:00.000-05:00

In preparation for our meeting on our Modification Project, Elaine Ziff and summer associate Hawa Allan have submitted a Memorandum of Law on "opt-out" vs. "opt-in" as a method of assent to changes in an electronic standard form contracts -- download a copy here. This outstanding Memorandum digests the Toysmart line of cases and settlements, legislation (such as the EU privacy directive, COPPA, Gramm-Leach, and CAN SPAM Act), and industry guidelines (such as TRUSTe and BBB On-Line). It also includes summaries of certain recent cases from the "paper world", where standard form contracts were amended by letter or email.

We will also discuss cases examining whether a particular contract provision included in a modification was unconscionable. Please join us for the Joint Working Group on Electronic Contracting Practices in the Walton Room, Second Floor at 4:30 pm on Sunday.

This posting entered on behalf of Co-Chair: Kathleen M. Porter (kporter AT rc DOT com)

IP Subcommittee Meeting Plans

2004-08-05T11:02:00.000-05:00

For those of you attending the ABA Annual Meeting in Atlanta, please join us at the Cyberspace Committee's IP Subcommittee Meeting. The subcommittee will meet Sunday, August 8th from 8:00 to 9:00 a.m. in the Forsythe Room (Atlanta Hilton, 2nd Floor).

At the meeting, we will discuss our current and proposed projects. The Agenda will include an update of the status of our Open Source Project (Yes, we have actually reviewed over fifty variations of open source licenses), as well as a discussion of current topics and issues. We are also soliciting ideas for new projects for the Subcommittee. As usual, there is plenty of opportunity for everyone to get involved!

Also, at the Annual Meeting, on Sunday afternoon from 2:30 to 4:30 p.m., the Subcommittee is sponsoring a program entitled "Search Engines, Adware and Trademark Law: What your Clients Can Do and Can't Do in Online Advertising." The Program will be held in Grand Ballroom D on the 2nd Floor of the Atlanta Hilton. We have brought in some outstanding speakers, so this should be a wonderful opportunity to get up to speed on the issues, as well as the positions of various industry camps. And, of course, more CLE credits!

You can read the flyer of events here. We look forward to seeing you in Atlanta!
John Ottaviani (jottaviani <@> edwardsangell.com) Eric Goldman (eric.goldman <@> marquette.edu) Co-Chairs, Intellectual Property Subcommittee

Shidler Journal Features CAN-SPAM and Law Practice

2004-08-04T09:17:00.000-05:00

The new Shidler Journal for Law, Commerce & Technology has recently published an excellent article analyzing a law firm's obligations under the CAN-SPAM Act. It would make good pre-study for those of you who plan to attend the program on Sunday morning: The New CAN-SPAM Act and Attorney Communications -- Avoid the Ethical Traps. Cyberspace is jointly sponsoring this program with the Committees on Professional Conduct and Law Firms, and the Administrative Committee on Technology. Ethics credits are tentatively approved! Please join your fellow cybernauts at 10:30 Sunday at the Hilton Grand Ballroom D.

New Sci Fi Book Plays out Cyberspace Law Issues

2004-07-31T23:01:00.000-05:00

The following is an excerpt from a recent book by Cory Doctorow. He's an up and coming (some would say "already here") science fiction author. Several of us in the Cyberspace Law Committee read his works. Besides being a great author, he also is notable for the fact that he publishes most of his work under the Creative Commons license. He also sells his books the more traditional way. Amazon currently has a great deal on the hardcopy version of his book (~$14 off).

The passage below is from Cory's latest book, Eastern Standard Tribe. It's a fun romp. In an early part of the book, the protagonist has a car accident, and he finds himself in need of a lawyer. So, where does he turn? The chat room for his Tribe. (You'll have to read the book to understand the Tribal references). The exchange below highlights many of the issues under discussin by the Cyberspace Law Committee, and that's why I'm including this passage here. As you'll see, he not only finds a lawyer, and forms an attorney client relationship, but he also gets certification of the lawyer's credentials, reviews his standard representation agreement in "smartcontract" form, and executes it. All without leaving the chat room.

For those of you not familiar with chat rooms, you may initially be confused by the syntax. It's probably easiest to treat this as if it were a script. Each line starts with the "handle" of the person who's talking in the Chat Room. "Trepan" is the client/protagonist. "Junta" is the lawyer. I've edited the passage somewhat to focus your attention on the cyberspace law issues.

You can read the full story in HTML here. To find out more about Cory Doctorow, and his book, Eastern Standard Tribe, visit his Website, Craphound. You can also download the book for free in many standard formats at this same Web site.

------------------------------------

Trepan: Any UK solicitors on the channel?

[material deleted for Blog posting]

##Junta (private) (file transfer)

##Received credential from Junta. Verifying. Credential identified: "Solicitor, registered with the Law Society to practice in England and Wales, also registered in Australia."

Trepan: /private Junta I just hit a woman while driving the Kensington High Street. Her fault. She's hurt. Wants me to admit culpability in exchange for half the insurance. Advice?

##Junta (private): I beg your pardon?

Trepan: /private Junta She's crazy. She just got off the phone with some kinda lawyer in the States. Says she can get $5*10^5 at least, and will split with me if I don't dispute.

##Junta (private): [Silly] Americans. No offense. What kind of instrumentation recorded it?

Trepan: /private Junta My GPS. Maybe some secams. Eyewitnesses, maybe.

##Junta (private): And you'll say what, exactly? That you were distracted? Fiddling with something?

Trepan: /private Junta I guess.

##Junta (private): You're looking at three points off your licence. Statutory increase in premiums totalling EU 2*10^5 over five years. How's your record?

##Transferring credential "Driving record" to Junta. Receipt confirmed.

##Junta (private): Hmmm.

##Junta (private): Nothing outrageous. _Were_ you distracted?

Trepan: /private Junta I guess. Maybe.

##Junta (private): You guess. Well, who would know better than you, right? My fee's 10 percent. Stop guessing. You _were_ distracted. Overtired. It's late. Regrettable. Sincerely sorry. Have her solicitor contact me directly. I'll meet you here at 1000h GMT/0400h EDT and go over it with you, yes? Agreeable?

Trepan: /private Junta Agreed. Thanks.

##Junta (private) (file transfer)

##Received smartcontract from Junta. Verifying. Smartcontract "Representation agreement" verified.

Trepan: /join #autocounsel
counselbot: Welcome, Trepan! How can I help you?

##Transferring smartcontract "Representation agreement" to counselbot. Receipt confirmed.

Trepan: /private counselbot What is the legal standing of this contract?

##counselbot (private): Smartcontract "Representation agreement" is an ISO standard representation agreement between a client and a solicitor for purposes of litigation in the UK.

##autocounsel (private) (file transfer)

##Received "representation agreement faq uk 2.3.2 2JAN22" from autocounsel.

Trepan: /join #EST.chatter

Trepan: /private Junta It's a deal

##Transferring key-signed smartcontract "Representation agreement" to Junta. Receipt confirmed.

Trepan: /quit Gotta go, thanks!

##Trepan has left channel #EST.chatter "Gotta go, thanks!"

CIPerati--a Cyberspace and IP Law Newsletter

2004-07-30T13:50:00.000-05:00

On August 2, the IP subcommittee published it's third edition of CIPerati. Give it a read!

The Changing of the Programming Committee Guard

2004-07-30T08:29:00.000-05:00

When you are in Atlanta, be sure to congratulate the new Programs Chair John Lunseth (r), and start your dialogues now on the programs for the future. And, be sure to thank his predecessor Hank Judy for his wonderful work including the great slate of programs for this year's ABA Annual.

Latest Issue of Crypto-Gram--A Great Read on the Plane

2004-07-28T23:09:00.000-05:00

For those of you who aren't on Schneier's mailing list, you're missing a great read. Every so often, Bruce Schneier publishes his newsletter called Crypto-Gram. It's a great read for anyone with an interest in security issues.

You can read the July 15 version here and find out how to subscribe.

Bring your Wi-Fi Cards

2004-07-28T21:13:00.000-05:00

From the ABA: "We will provide Wi-Fi network throughout the Second Floor of the Atlanta Hilton which will provide you with wireless internet access. If you have a laptop with Wi-Fi built in, you'll want to bring it to the meeting. If you have a laptop without Wi-Fi, you might want to purchase a Wi-Fi card or USB adapter for your laptop for about $50 at any computer store."

According to the Hilton: I talked to someone at the front desk at the Hilton. According to him, the hotel provides wireless internet access throughout the entire hotel, including the rooms. The cost for access is $9.95 for 24 hours. They now measure use from when you log on, rather than the old 12 Noon to 12 Noon standard. The Hotel will also loan you a wireless card or a wireless USB adapter for your laptop for $5 for the entire length of your stay. However, he cautioned me that service is better in some areas (lobby) than in others and that some wireless cards work better than others and some won't work at all. So, it looks like we may all have to do a little bit of fiddling to get it to work in our rooms. But, that's what makes it fun, right?

Cybersecurity "Summit" meeting - Saturday, 8/7 at 16:00

2004-07-28T11:53:00.000-05:00

On Saturday, August 7, at 4:00 pm, we'll be holding an off-the-schedule informal meeting just outside the Grand Ballroom A (second floor -- where out program titled "Getting Paid in the 21st Century" will be finishing up) to begin planning a Cybersecurity "Summit" symposium for early next year. The Summit is the brainchild of Marc Pearl and Ray Gustini (co-chairs of the subcommittee on Cybersecurity and Electronic Privacy), and would bring together industry and government IT/Privacy leaders to target areas and processes for better industry-government co-operation in areas of electronic privacy and information sharing.

The LawHub has background information on this project (including a working draft of the Summit concept) at http://lawplace.metadot.com/metadot/index.pl?iid=3171&isa=Category

If you're interested in this subject, please come!

Vince

Schedules for the Meeting

2004-07-27T13:19:00.000-05:00

The ABA Business Law Section Web Site has schedules to help you plan your time at the meeting.

You can also find details about the Cyberspace Law Committee's meeting schedule in the advance mailing to Committee members.

Check out Past Blogs

2004-07-27T09:57:00.000-05:00

The blogs from our past two meetings are available online too. Check them out for a bit of history on our projects.

2004 Annual Winter Working Meeting

2004 Spring Business Law Section Meeting

Try Some Tapas for the Annual Cyberspace Dinner

2004-07-27T09:51:00.000-05:00

The Cyberspace Dinner this year is at a wonderful tapas bar called Pura Vida. Dinner is Saturday night and is by ticket only ($68). Once again, Cyberspace will have the best dinner at the best price of the entire ABA. Capactity is limited, and if you haven't gotten your ticket yet, email Jackie Scheib at jscheib <@> rc.com.

Visit By New ABA President

2004-07-27T09:34:00.000-05:00

The new ABA President-Elect (and Kirkpatrick & Lockhart Partner), Mike Greco, will be visiting the Cyberspace Law Committee Dinner just after 7:00 pm and will have to leave around 7:30 pm. He will be making brief comments. Hope to see you there

Just a reminder: the Dinner starts at 7:00 p.m. on Saturday, August 7, 2004, at Pura Vida Tapas and Wine Bar, located a short cab ride from the Hilton at 656 North Highland Avenue, Atlanta. Check out their website at http://www.puravidatapas.com/.

If you haven't made a reservation for this dinner, you may still be able to attend IF YOU CONTACT JACKIE SCHEIB BEFORE AUGUST 3 -- see earlier posting to the Committee's listserve here

Headquarters: Atlanta Hilton

2004-07-26T22:49:00.000-05:00

Most (if not all) of the Cyberspace meetings will take place at the Atlanta Hilton Hotel.

Welcome to the Cyberspace Blog for the 2004 ABA Annual Meeting

2004-07-26T22:43:00.000-05:00

Welcome to Atlanta. The leadership of the Cyberspace Law Committee will use this space to keep you updated on events at the annual meeting. Several of us will update it regularly throughout the meeting with pictures, summaries of meetings, and last minute updates on meeting times, schedule changes, and the like.

If you'd like permission to post, please email michael-mcguire <@> comcast [dot] net (email address intentionally buggered to prevent SPAM harvesting).

Privacy Policy UPDATED 7/28/2004

2004-07-26T15:05:00.000-05:00

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