A couple of years back, when we started The Blogbook, there were very few legal blogs. Now of course there are thousands, including blogs from big firm lawyers as well as solos. Our original intention for this blog was to try to figure out if legal blogging was any different from 'regular' blogging, and if so, how. As I wrote that first week in our FAQ: "It's about whether or not a blog becomes something more than a blog when it is written by a lawyer, an expert in his or her specialty, and features commentary on cases and legislation." In other words, do practicing lawyer-bloggers have any special obligations or rules that they must follow that distinguish them in any way from every other blogger? We used the pastiche of the Blue Book ("Fair Use!" we said – knowing the point was highly debatable) to elicit responses (and we got ‘em). The long and short: nobody wants "rules" or even "guidelines" of any sort for legal bloggers. Other than the "this is not legal advice" disclaimer, lawyer bloggers could and should proceed like any other blogger writing on any subject.

Anyway, it's time to shutter the Blogbook. I for one have hardly posted in a year, as I've been too involved in my actual job.

But here are a couple of thoughts to finish on: (1) Big Law and blogs; and (2) podcasting.

1. Big Law and the blogs.
There was an article in the WSJ a month or two ago (I won't like to it because it's subscription only) from which I draw the following quote:
"Blog-monitoring services typically charge big companies $30,000 to $100,000 a year. They say their technology goes beyond basic tools, such as keyword searches or counting links from one Web site to another."

I'm sure. They also, like, read stuff. My how far we've come. But isn't there something very late nineties about giant corporations paying outside firms big bucks to essentially read blogs for them, especially when they've got their own employees perfectly capable of doing the same thing? And it's ironic (hello 90s!) that while some big companies are paying outside firms to get eyeballs deep into the blogosphere, others are allowing (some even encouraging) their own employees to join the conversation. Fredrik Wackå's excellent corporateblogging.info has everything you want to know about corporate blogging, so I don't want to stray too far into that world here, but the point is that thinking about giant corporations got me thinking about -- what else -- giant law firms.

To me, the elephant in the blawging room is Big Law. At one point or another all lawyers thought they might practice in one of the big law firms (the AmLaw 100, what I tend to refer to simply as Big Law). And some actually do. But very few (when considering the total number of practicing lawyers out there). Big Law is everywhere and nowhere. Big Law represents all the most important corporations on earth, but shockingly little is actually known about the inside workings of these firms. Their partners move in and out of government, and then disappear back into the opacity of the Big Law world. ALM has made a huge business writing about nothing but Big Law, and still hardly anybody knows how these megafirms actually work or where they are headed. But I notice that some forward thinking partners at Big Law firms are starting to blog, and that is interesting to say the least. I intend to keep an eye on it.

2. Podcasting.
Yes, I am podcasting now. Lots of people are. Big whoop. Next year I'll be videocasting. Whatever – only time will tell if it is of any interest to anybody.

But I wanted to give a big shout out to Kevin Heller and blawgcasting. Kevin is a fine IP lawyer with tremendous dedication to the blogosphere and open media. I will certainly be keeping an eye out on his various blogging and podcasting projects.

That's about it for me. It's been fun. And my most read post, btw, was "Hard Money and Political Retailing". If you're interested read it now, because I don't know how much longer we're going to keep the site up; sooner or later (probably sooner) it will just be a cached memory somewhere.

David Maizenberg, Palo Alto, September 1, 2005

This is my final Blogbook post, and it seems appropriate to conclude with some insights and observations about the periods of fatigue that all bloggers inevitably experience.

There are may ways to cope with blog burnout. Here are a few that may work for you:

1) Take the Zen Approach.
First, do nothing. Simply remain in the Now and don't post a thing unless and until you are motivated by the presence within you and all things. Be forewarned, however, loss of blog traffic may result from an abrupt, unexplained absence. If you choose this approach, you may want to be courteous to your loyal readers and post a "Gone Fishin'" sign. No further action is necessary.

2) Celebrate the Dying of a Light.
Blog on the death of other blogs. It's a fertile topic because all blogs have a lifecycle. Why not announce the closure of other blogs? It's news! Here's one from Transblawg that said the Blogbook went belly up last year.

3) Try the Martha Stewart Approach.
Look through your email sent box for any interesting correspondences. Recycle these brilliant words, add a link or two, and voila -- you've got a traffic generating post.

4) Go Low Maintenance.
Start posting links with single sentence commentary. There's no shame in this method. Some of the biggest blogs do it.

5) Find Strength in Numbers.
Invite others to blog in your place while you catch your breath. This approach works especially well if you happen to be a law professor or blog for a law firm. Surely there are students or first year associates who would jump at the chance to do your bidding.

6) Call It a Day.
Have you ever watched a large school of fish or a flock of birds in flight? They move as a group, but no single animal is in charge. One might lead the pack in a certain direction for a moment, but soon enough, another takes the group off on a different tangent. After a few of these direction changes, an animal breaks from the group and heads off on its own. Recognize when it's your time to disengage.

Closing Shop.
The decision of whether to keep a blog online after you've decided to stop posting is open to debate. There are all sorts of questions to consider. Here are a few to think about:

a) Can you afford to continue hosting the blog?
b) Do you want continued exposure on the internet? Even if you take your blog offline, it may linger on in a search engine's cache or the internet archive.
c) Does the information in your blog contain material that others may continue to find useful? Is providing this information a priority for you?
d) Can you continue to generate Google Ad revenue from your blog even if you aren't actively posting?

Thanks for reading.

The Online Coalition is authoring a letter to the Federal Election Commission in response to the FEC's proposed rulemaking that would impact blogging and other Internet communications. Today is the final day to join in support of the comments.

Before signing, it's a good idea to review the positions advocated by the group. For example, the Online Coalition does not support a disclaimer requirement for bloggers who receive direct compensation from election campaigns. Other issues include proposed definitions of what constitutes a "public communication," as well as political affiliation/sponsorship disclaimers in unsolicited email.

Legal Affairs editor Lincoln Caplan's article on Blawgs discusses the differences between general and legal weblogs. The article opens by mentioning the Supreme Court's citation of Douglas Berman's Sentencing Law and Policy Blog. It's exciting, in part, because judicial citation of weblogs has been a foundational issue since the Blogbook's inception.

The article concludes with an interesting, tongue-twisting observation about the blogs of the legal variety: "...while blawgs are blogs, they rarely have the populist touch that is supposed to make blogs blogs."

Background

The Bear Flag League, a coalition of 80 bloggers with California connections, filed an Application To File An Amicus Curiae And Proposed Amicus Brief with the California Sixth District Court of Appeal in O'Grady v. Superior Court, the appellate proceeding arising from a suit filed by Apple in Santa Clara County Superior Court. In the underlying action, Apple sued unnamed defendants who allegedly revealed trade secrets about Apple's FireWire audio interface for GarageBand on two websites, AppleInsider and PowerPage.

Some Procedural History

December 2004: Apple files suit against Doe 1, an unknown individual, and Does 2-25, inclusive.

December 24, 2004: trial court grants Apple's motion to take expediated document discovery.

February 4, 2005: trial court grants Apple's request to permit specific discovery directed at Nfox, the email service provider for PowerPage.

March 4, 2005: trial court hears arguments on Jason O'Grady and others' motion for a protective order to the subpoena issued on Nfox.

March 11, 2005: trial court issues a ruling on the motion (in Apple Computer v. Doe). While the Court made "no findings as to the ultimate merits of Apple's claims," it orders defendants to comply with Apple's discovery attempts to identify the source of the leaked information. Nfox is ordered to comply with the subpoena.

March 22, 2005: Online reporters file appeal to March 11 ruling.

April 19, 2004: Bear Flag League files application for amicus brief and proposed amicus brief

The Court's Ruling and the Bear Flag Brief

In the March 11 ruling, Hon. James P. Kleinberg states that the Court's decision to deny the request for a protective order has little to do with constitutional protections of journalism. Rather, "What underlies this decision is the publishing of information that at this early stage of litigation fits squarely within the definition of trade secret. . . The Court sees no reason to abandon that right [of trade secret protection] even if it were to assume, arguendo, movants are "journalists" as they claim they are." (p. 13)

The Bear Flag League is a coalition that strongly advocates protection for bloggers. In their proposed amicus brief, the BFL opens with the argument that "news-gathering" bloggers are entitled to immunity under California's "Reporter Shield." While this is an important and closely-monitored issue to bloggers, it is not directly responsive to the Court's reasoning in the March 11 decision.

To convince the Court to overturn its decision to deny the request for a protective order on a subpoena of an email service provider, the nature of the information needs to be put at issue. The BFL brief does go on to address this point by arguing that the subpoena on Nfox would violate the Stored Communication Act, 18 U.S.C. 2701. Though the BFL's argument is painted with broad strokes, it may prompt the Court to ask for a full amicus brief on the issue.

The prospect that bloggers may face liability and/or sanctions for reporting certain information that may be protected has serious implications on weblogs and on free expression. Among the current legal issues impacting blogging, Apple v. Doe represents a potential milestone in the development of the weblog medium. Bear in mind that this litigation is still in the early phase of discovery.

Notable blog quotables from the March 11 ruling

"...an interested public is not the same thing as the public interest." (p. 12)

"Let there be no doubt: nothing in this order is meant to preclude the exchange of opinions and ideas, speculation about the future, or analyses of known facts. The rumor and opinion mills may continue to run at full speed." (p. 13)

The Lawyers

Jeffrey Lewis and Benjamin P. Pugh of ENTERPRISE COUNSEL GROUP, ALC, Irvine, CA, for Bear Flag League

Kurt Opsahl, EFF counsel for journalists Monish Bhatia, Jason O'Grady and "Kasper Jade"

George A. Riley and David Eberhart of O'Melveny & Myers LLP, San Francisco, for Apple, Inc.

The Blawg Review, a "Carnival of the Blawgs and Law Blog Reviews by Legal Bloggers," has recently launched. Evan Schaeffer hosts the first edition.

This hilarious quote from Judge Posner hangs on the mantle:

Welcome to a world where inexperienced editors make articles about the wrong topics worse.

Newsday reports: NYAG Eliot Spitzer came under fire when a sponsored link to his gubernatorial campaign site appered after Google users searched on "AIG." American International Group (AIG) is involved in Spitzer's ongoing investigation of insurance industry practices in New York.

Spitzer's spokesman blamed the misplaced ad link on a campaign staffer, "a wonderful computer geek who just didn't know what he was doing."

[Note: The Blogbook does not receive sponsorship, donations, compensation, or gifs from any political entity or campaign committee.]

An article by Rick Hasen (Loyola Law School professor and Election Law blogger) entitled "The Ripple Effects of the FEC's Rules on Political Blogging: Why They Will End Up Undermining Limits on Corporation and Union Campaign Finance Activities," appears at FindLaw's Writ and Modern Practice.

As reported in Personal Democracy Forum, the San Francisco Board of Supervisors will soon vote on city ordinance concerning the "Disclosure and Filing Requirements for Electioneering Communications."

As the ordinace is broadly focused on communications sponsored by political candidates, there is uncertainty over whether the legislation will have an impact on bloggers.

As reported in this Wired News article, on March 23, the Federal Election Committee issued a "Draft Notice of Proposed Rulemaking on Internet Communications."

The proposals are intended to "ensure that political committees properly finance and disclose their Internet communications, without impeding individual citizens from using the Internet to speak freely regarding candidates and elections."

Weekly roundup of relevant legal blogging links from a once-and-future editor David Maizenberg:

BlawgConnect.2005 - Chicago. "the largest collection of law bloggers assembled to date under one roof"
http://www.inter-alia.net...

Sarah Kellogg's "Do You Blog?" the cover story from the DC Bar's Washington Lawyer site
http://www.dcbar.org...

"Legal Blog Article" by Ben Wickert, law student-to-be and editor of Ben's Law Blog
http://benslawblog.blogspot.com...

Corrante has just launched Between Lawyers, a new legal blog with a panel of well-known contributors
http://www.corante.com/betweenlawyers...

Ben Cogswill's Legal Ethics blog is focusing on "Legal Ethics + Legal Technology: A special week of blogging inspired by ABA TechShow 2005"
http://cowgill.blogs.com/legalethics...

Kevin Heller's "Belly Up To The Bar" - loaded with links
http://techlawadvisor.com...

Another item from the intersection of blogs and legal issues: Wall Street stock blogs, which according to Corante are edited by former analysts who dispense "daily advice on what companies are hot..."

Given the heightened enforcement environment in the securities trading industry, the SEC, DOJ and New York AG will probably be monitoring these blogs. What kind of blogging activities could raise a red flag? Like Election Blogs, the existence of special relationship between 1) the blogger, 2) an outside organization, and 3) the blog's messaging, could point to possible impropriety.

On the other hand, Wall Street stock blogs are a positive trend for an industry that has "taken a severe beating." They can be viewed as the next generation of popular business publications that flourished in the tech boom of the '90s, like Red Herring, the Industry Standard, and Raging Bull (all of which have gone micro).

Larry Bodine wrote in wondering if we knew how many legal blogs are in existence. It's an interesting question that is wide open to speculation. I don't think anyone can say for certain without conducting an extensive blawg census, but here goes.

According to one report at the Blog Herald, the total number of blogs in the world is greater than 34 million. Of that total, an estimated 14.5 million are English language blogs.

Beyond noting that Japan, France, the UK and Germany have made their mark on the legal blogsphere, I have limited knowledge of international blawgs. So, rather than make an outlandish claim using the worldwide estimates, I'll limit my pontification to the 14.5M number (which presumably includes blogs from the UK).

After researching a few relevant blogging centers (blawg.org, blogbook.org, my detod, lexblog and blogger), I generously estimate that one out of every 100 blogs could qualify as "law related." Note that "law related" is a broad term that includes the entire spectrum of blawgs (those edited by lawyers, professors, students, and other legal professionals) as well as political and personal blogs where law is frequently discussed.

Doing the math, 1% of 14.5 million is 145,000. One hundred forty-five thousand "law related" blogs in the English speaking blogsphere -- do you believe it? I'm not sure I do. I think the number of strictly legal blawgs is much smaller.

Did I mention that I'm not a licensed statistician?

From the More Soft Money Hard Law web updates, this piece by Bob Bauer touches on the pending "gloom and doom" FEC regulation of the Internet.

Note the Paid Bloggers section, which is now officially defined by the Commission as "an issue."

- D.M.

My First Mine has an interesting post about a blogger who is quitting his day job.

"If blogging is business, pay me Not to Blog." - Anon.