flash intro pages – a useful analogy

Just a short one today before I get back to work. Completely unrelated to law.  If you’re building a website, and thinking of using flash, and, moreover, thinking of having a flash splash page, you may want to consider this sage advice:

Jared said, “When we have clients who are thinking about Flash splash pages, we tell them to go to their local supermarket and bring a mime with them. Have the mime stand in front of the supermarket, and, as each customer tries to enter, do a little show that lasts two minutes, welcoming them to the supermarket and trying to explain the bread is on aisle six and milk is on sale today.

“Then stand back and count how many people watch the mime, how many people get past the mime as quickly as possible, and how many people punch the mime out.

“That should give you a good idea as to how well their splash page will be received. That’s the crux of it.”

MarketingSherpa: Uproar over Anti-Flash Intro Survey Results by way of The Oatmeal.

web 2.0 & the law

Another story from  The Register communicating a warning from the EFF about the inherent legal risks of Web 2.0 stuff. The nub:

The Electronic Frontier Foundation (EFF) has given Web 2.0 media sharing start-ups some non-technical advice: run your ideas past a lawyer first to stay on the right side of copyright law.

Can’t argue with that. Continuing on:

“One of the big mistakes I see in this space is failure to engage legal counsel soon enough. Often these involve business issues – like how do you want users and employees to interact on the site,” staff attorney Fred von Lohman said.

The choice of whether to offer buzzy features like mash-ups or to profit from other people’s content on the server may also have a bearing on a company’s legal exposure. “Techies will tell you it [server-side computing] is about efficiencies, the reality is lawyers will tell you to think hard about it,” von Lohman said.

While you might think executives running sites that suck in other people’s content have most at risk, von Lohman pointed out that investors are also in the firing line. He cited EMI and Universal’s decision to drag Bertelsmann through the US courts over its $100m investment in the old Napster, which they claimed helped the P2P site infringe on their works.

So there you have it. Straight from the EFF.

taking the fun out of blogging

As a lawyer, I understand the need for policies, procedures, practices, etc. when running a business, managing vendors, employees, etc. Of course. Sure. That’s part of work – both my work and the work of my clients. But when I see an article entitled “Blogging Policies and Best Practices for Lawyers and Law Firms” well, gotta say, my eyes start glazing over.

Not that there’s anything particularly bad or wrong about the article. In fact, it offers some good advice on avoiding “ethical minefields”, creating “powerful marketing tools” and ensuring you realize a good return on your “investment”.

Ugh. To be perfectly honest one of the primary reasons I blog is not to realize a return on investment, or to create a powerful marketing tool, but rather just to offer casual observations (or ruminations) on my work or things related to my work. In other words, its a bit of fun, as compared, for example, to writing a formal research paper, journal article, or a 100 page outsourcing contract. For those types of writing, there are many, many rules, requirements and policies to remember and adhere to, amongst other considerations. And relatively speaking, its not quite as much writing that stuff as it is posting what are ostensibly meandering ramblings about the next new thing. Don’t get me wrong, its certainly interesting and challenging work, but its not the type of thing one typically does to relax.

I guess what I’m getting at is along the same lines as the previous post about making blogging part of someone’s job. Its kind of like saying that its part of your job to chat up your friends at work on a regular basis. Its kind of like saying that there should be internal policies governing who you go to lunch with, and what you talk about over lunch. In other words, to me, it seems to take all the fun out of it. It makes it seem like work. It puts you in the mindset that it is work. And, to be perfectly honest, I think it makes it less interesting, because you’re too worried about the time being put into it. Too worried about whether you’re writing for your “target market”. Too worried about “visualizing and addressing your market”. Too worried on making your blog sound “informal and conversational”. Too worried about this, that and the other thing, none of which have much to do with the subject matter of what you’re writing about.

Of course, this is just my take on blogging and what I hope to achieve (or perhaps rather not to achieve) by doing it.

Pretexting, Ethics and Clients

Still catching up a bit – very quick post on the HP “pretexting” thing. As you may recall, HP asserted that its practice of pretexting – i.e. pretending to be someone else to get confidential telephone records – was legal. They were investigated leaks to the press by one of their board members and had resorted to this practice to try and find the leak. I had commented elsewhere long ago when this story first broke that even if it were illegal, very few (if anyone) could consider such actions the least bit ethical.

As most of you know apparently there was some disagreement as to legality and a few folks at HP were charged. Then I read this recent story about how HP was ending its special ties to Larry Sonsini, of the California powerhouse firm of Wilson Sonsini:

Sonsini – famous for decades in these parts – gained national fame in September during HP’s spy scandal hearings in front of Congress. Emails between the lawyer, HP executives and former director Tom Perkins raised serious questions about how sound Sonsini’s advice was around the practice of pretexting. He seemed to indicate that phone record fraud sounded like fair game, after being nudged in that direction by HP’s internal lawyers.

My emphasis. Its unfortunate to hear of something like this. I don’t doubt that he took the time and effort to research the law to come to a reasonable opinion on the matter before advising his client – obviously it was a very grey area of the law. In those circumstances its unfortunate that he didn’t perhaps suggest, notwithstanding the black letter of the law, that it would be unwise do take the course of action they were contemplating. That as good corporate citizens with a significant public profile, that such a practice is not something they should even consider. But then again, maybe he did and they didn’t listen (and of course he would surely have the good sense never to say that in public and embarrass a major client) or maybe he thought that such comments were not for legal counsel to make. Who knows.

The situation is not unfamiliar to many lawyers – particularly when it comes to giving opinions – lawyers are sometimes subjected to pressure to deliver the opinion that a client wants to hear rather than the one they should probably be delivering. By this I’m certainly not suggesting lawyers are delivering bad or incorrect opinions. What I am saying is that there are often grey areas of the law (which tend to be the areas on which legal expertise are sought) and in respect of which opinions can go one of two or more ways. And sometimes, the client will want to hear a certain outcome – for example, in the case of HP, I’m sure they would have liked the comfort to hear from their external counsel that their actions were legal – it would serve as some evidence that they took some degree of diligence and could serve to mitigate consequences if it turned out governmental authorities differed. If he, on the other hand, refused, or proffered a legal opinion that it was fine but qualified with a recommendation not to take such actions, HP likely would have not been very happy with him. And everyone knows what happens when clients aren’t happy.

Its an unfortunate situation to be in. Particuarly in this case, where, at the end of the day, HP still, obviously, isn’t happy with him.

about

This site was created and is maintained by me, David Ma. For the technical details of the site, please see the colophon. For the details on me, peek at my LinkedIn profile. The short story is that I’m a corporate/commercial lawyer in Toronto, Ontario (Canada), specializing in technology-related transactions and companies.

Why this site? Primarily as an outlet to make personal and informal observations on developments in the technology industry as I see them. And to let me poke around with a little bit of technology.

Views expressed here are solely my own. Don’t rely on anything on this site as if it were legal advice (or for that matter “legal information”), because it’s not. Questions? Feedback? Feel free to e-mail me or contact me through LinkedIn, or if you like, by carrier pigeon.

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