Subtitle: Ancient wisdom says, "If the only tool you know how to use is a hammer, then everything looks like a nail."
Sub-subtitle (only a lawyer would write that): If the only legal device you know how to use is litigation, then ...
Okay, enough with the titles. I'm going to send you off to read (and listen to, if your attorneys allow you to) some disparate, but important threads in the development of blogs and social media. The question these all relate to is:
Whether businesses and business lawyers can/should continue to operate in a Web 2.0 world without becoming bloggers themselves, or having one on staff?
As my title suggests, I think not.
But I also think you should spend some time thinking about this for yourself, so rather than spell out my argument, I'm going to connect you to some of the threads I've followed and let you make your own journey down the many paths these may lead you to. I was prodded again by a post by Neil Squillante in the TechnoLawyer blog yesterday, Demand Letters in the Age of Blogs, criticizing the knee-jerk tactic of sending a cease-and-desist letter threatening litigation against a blogger. He's writing about the uproar going on over at TechCrunch over Michael Arrington's allegedly defamatory post last week discussing possible legal troubles that might derail a rumored acquisition of Rivals.com by Yahoo! Note the blinding speed of these events.
- Arrington's original post was on Thursday, April 12.
- The next morning lawyers for his alleged victim sent a letter demanding a retraction and threatening litigation (excerpt above).
- Before the morning is over, Arrington has posted the entire 3-page letter on his blog and added an update inviting the alleged victim to refute the original post, point-by-point, and promising to post the response - unedited - on the blog.
- By the end of the day on Friday, the story had been picked up on Wired and AOL Sports and received 95 comments on TechCrunch.
- By Sunday morning, when Arrington closed comments on that post due to spammers, there were 142 comments.
- Others (e.g. here and here) began writing about the story and the heavy-handed response.
- On Monday (yesterday), Neil posted his critique of the lawyers' approach.
- And the lawsuit deadline in the demand letter doesn't come until tomorrow, April 18!
Neil's words of caution:
Think twice before sending a cease and desist or demand letter to a blogger, especially a powerful one. Bloggers play by different rules and believe in transparency to the extreme. While you may win the legal battle, you may lose the publicity war, which arguably matters more in today's world.
Query: What did the "victim" and his lawyers accomplish with the letter to Arrington?
[UPDATE: It's now April 19 and I can't find any indication that the lawyers carried out their threat to file suit against Arrington and TechCrunch yesterday. Bluff called?]
This latest drama recalls the Spocko vs. ABC/Disney/KSFO fiasco earlier this year, in which the lawyers for ABC's affiliate sent a threatening letter to the blogger's hosting service and "succeeded" in temporarily shutting the blog down. Only to discover that even a small "fifth-tier blogger" (Spocko's own description) has friends in the blogoshpere. The Daily Kos picked up the story in full detail, the Electronic Frontier Foundation pledged support and sent its own version of a cease-and-desist letter to ABC's lawyers, and Spocko's position is now available to everyone on YouTube. Oh, and Spocko's blog was back online in short order using Computer Tyme, as the EFF described it, "a host with more backbone."
What did ABC and its lawyers accomplish?
Or, how about the troubles caused for Tim O'Reilly when the lawyers for CMP (co-sponsor with O'Reilly Media of an early Web 2.0 conference) sent a C&D letter claiming to own trademark rights to prevent an Irish networking group, IT@Cork, from using "Web 2.0" in the title of a conference about, of all things, Web 2.0. Blogger Tom Raftery promptly published the letter (332 comments) on his blog and follow-up letter (48 comments) from the lawyers. Now poor Tim O'Reilly was on vacation at the critical moment when the decision to send the C&D letter was made - a decision he admitted was "a faux pax" and a "screwup" when he finally returned and responded (313 comments). By then he was backfilling for the legalistic and PR-spin posts from his staffers here (278 comments) and here (105 comments).
What did CMP and its lawyers accomplish? Well, for their partner O'Reilly, they created a contorversy that he described as "bad for my most important brand, my own name." Note: in the end, Tim O'Reilly's handling of the situation provides a model for how the blogoshpere can help with damage control, even after a "srewup" occurs; if you follow all the links above, you'll see the tone shift and end up with apologies exchanged, just as publicly as the controversy.
One more: the C&D sent by the estate of Dr. Seuss to a music producer who had created a parody of some of the Seuss classics sung to sound like they were recorded by Bob Dylan. The individual creator caved in to the demand and removed the songs from the Dylan Hears a Who website, leaving an explanatory message that it had been retired "at the request of Dr. Seuss Enterprises, LP." Consequences to date include, an article in Salon.com, harsh criticism of its action ("irresponsible, if not simply abusive") from the Stanford Center for Internet and Society, and oh yeah, the songs are still available online, e.g., at WFMU's Beware of the Blog Oh, the Thinks You Can Think and Green Eggs and Ham.
So, once more, did the Suess estate and its lawyers help, or harm, their brand with their tactics? Does every business and business law firm need a blogger to help analyze the effects of blogs and social media on their standard responses to what goes on all over the web?