Reality Bytes

Reality Bytes
A personal view on technology in society and the legal profession.

On July 24, 2009, The Wall Street Journal's Law Blog reported on judicial review of the proposed copyright settlement between Google and book publishers. As previously reported here, Google embarked on a massive project to digitize every book ever written and was sued by publishers for copyright infringement. The two sides reached a proposed settlement agreement last year. Having sent Bernard Madoff away for 150 years, New York federal judge Denny Chin now trying to complete review of this complex copyright settlement.

Law Blog reports:

Thursday, July 9, 2009

Bada Bing, Bada Boom

There is a lot of hype out right now about bing, Mircosoft's new search (or if you prefer, decision) engine. I have tested bing a couple of times, and it is not bad. It is different in some ways from Google, but I am still unconvinced that it is "better" than Google. One of the claims that Mircosoft is making in its expensive advertising campaign to promote bing is that it actually produces the result that you are looking for better than the competition. The competition is, of course, Google,and let's not forget Yahoo.

I decide to give these three search engines a test on a topical search. I wanted to look for a copy of Michael Jackson's Will, which I know is out there online, because I have seen it through a link in a Twitter message. So, I typed "michael jackson's will" in to Bing, Google and Yahoo. This is a some what tricky search because of the combination of "michael jackson" and "will". It can turn up all kind of results because "will" is more prevalent as a verb and also appears in at least one prominent Michael Jackson song title. So I intentionally added the possessive to help the search along.

Google turned up a good link to the Will as its third result. Yahoo showed a different, but good link to the Will as its sixth result. Google and Yahoo also had numerous results linking to news coverage of the Will. Bing, however, failed to show a good result for the Will itself, instead producing a large array of other Michael Jackson results, and had no results of news coverage on the Will.

Sorry, bing, you lose in this test.

Posted by Robert Young at Thursday, July 09, 2009 0 comments

Labels: bing, google, Michael Jackson, Wills, yahoo

Wednesday, June 3, 2009
MSBA on Twitter
As reported in the June 2009 MSBA Bar Brief , the Maryland State Bar Association is now communicating through Twitter:

One of the problems that I have in writing about technology in a semi-annual print publication is that by the time you read this, almost everything you are reading is old news. Technology itself, particularly the internet, unceasingly has reshaped the exchange of ideas in our world. In my last column, I wrote a bit about the difficulties of the newspaper business. By the time that column reached you, the crisis in newspaper publishing had reached such institutions as The New York Times. Major daily newspapers have folded. The Baltimore Examiner ceased publishing in February. The Tribune Company, which owns The Baltimore Sun, has filed for bankruptcy. The Rocky Mountain Times went out of business. As I finish this column, the parent company of The Chicago Sun-Times has filed for bankruptcy. There is trouble in other print media too. Forbes Media has cut pay and Condé Nast has cut jobs.

Newspapers are in trouble. Some might say that the internet has made newspapers obsolete or that newspapers have failed to adapt and provide websites with content sufficient to attract a new audience that wants its news more quickly and directly online. Of course, some newspapers did not or do not “get” the internet. There are others that have clearly established prominent websites that are providing substantial and desirable information online, such as The New York Times or The Wall Street Journal, but which still have financial woes.

A closer look at the newspaper crisis reveals why even print publications with a prominent web presence are still suffering. At the heart of the problem is not a failure to provide competitive content on online, but a failure to make enough money doing so.

Be it print, or broadcast or internet, most mass media make their money by selling advertising. Traditionally, print advertising costs more, as it has to support the large enterprise that is a major newspaper (writers, photographers, editors, management, buildings, communications, printing, distribution networks and all of the related support). By contrast, internet advertising is cheaper. The internet has leveled the playing field, such that much smaller enterprises can compete with powerful icons like The New York Times or The Washington Post or The Wall Street Journal. Staffing and physical facilities are smaller or non-existent. With a computer and access to the internet, anyone can start a blog or a website and aspire to be the next Matt Drudge. Although The New York Times has cachet because of its creative and editorial talent, it has costs way beyond that nucleus of talent if it wants to put a newspaper on doorsteps each day.

The consumers deserting the daily newspaper may be shifting to online versions of those publications, but the newspapers are not making enough money online to offset their decline in advertising revenue on the print side. Newspapers have survived and adapted to challenges from radio and television, and they yet may do the same in the face of the internet. (Radio and television are also facing similar challenges from the internet.) In order to survive, however, newspapers will be different in the future. The large, labor intense organization model is already disappearing. Foreign bureaus are closing. Staffs are shrinking. Paper size is shrinking.

A brave new world lies ahead. The fundamental question is whether all this change will be for the better. News organizations like The New York Times or The Wall Street Journal provide something vitally needed: in-depth analysis. Their investment in journalists and in the investigative, long-view approach is under assault for business reasons, but our public discourse will be diminished by the loss of such voices. This kind of analysis and function may fall to a non-profit or philanthropic business model in the future, or we may have analysis controlled by the likes of Rupert Murdoch. Let us hope that we can find a way to save these vital elements in the world to come.

Technology’s transmutation of the information age will continue, but there are vital issues that must be monitored. There are questions about who will control our ideas, identities, and personal information in the technological age. Let’s take a look at some examples.

Growing up, our family drove Chevrolets, built in America by Americans, and bought by Americans. My first car was a Chevrolet. It was an iconic time in America. By the time I got out of college, my car was a Toyota. I have not owned a car from an American carmaker since. As I make final changes in this column, General Motors is on the brink of bankruptcy, a dinosaur reaching extinction, or at least gone as an icon of American industry. We are not going to bring back the past.

With corporate giants like General Motors fading, their place is being taken by the new corporate giants of technology. Giants like Google. Because Google does not sit still and is ever looking to expand, it is a common target. What you are about to read is not highly original analysis, but a synthesis of things others have reported. There are issues deeply imbedded in Google’s view of the future and here is where we need the analysis of many minds to look at that view.

Previously, I wrote about Google’s attempt to make every book ever written available on the internet. At first this seemed to be a fantastic dream, an impossibly wonderful idea. It crystallizes an image of Google that is romantic and attractive, while at the same time having a much darker side.

Google is still a place that thinks big and pushes the envelope. In seeking to connect all of the written knowledge of the world under the big tent of the internet, available to all, in a kind of internet Library of Alexandria, Google would seem to be fulfilling one of the grandest promises available in the age of technology. From all I have read, this is Google’s intent. So what is wrong here?

First of all, Google ran into a few problems with copyrighted works. People who hold the legal rights to the ideas contained in all those books were not too pleased with the prospect of those ideas being appropriated and distributed by Google (at least without compensation). In an earlier Technology Bytes, I discussed the underlying clash between copyright and fair use and the free exchange of information for intellectual purposes (rather than profit).

Now Google has settled that litigation. That settlement, however, brings forward a more troubling potential outcome. Because Google is a corporate Goliath in this fight, its settlement will set the bar for any competition. In effect, the settlement may lock out everyone else from digitizing the world’s books, because lesser enterprises lack Google’s money and resources to accomplish the task and they lack the economic leverage to compete with the kind of deal that Google struck with publishers, or to fashion their own deals. Thus, Google may accomplish its goal (or a substantial part of it), and, in doing so, it may end up controlling a vast storehouse of knowledge.

Let us remember that Google is not a non-profit library or foundation, but a for-profit corporation. It is not a far stretch to think that in some less benevolent corporate time to come, when Sergey Brin and Larry Page are gone, the masters of Google may want to make more money off of their control of all this knowledge. There has been much commentary on Google’s settlement of this litigation, but I would recommend an article in The New York Review of Books by Robert Darnton, the Carl H. Pforzheimer University Professor at Harvard, entitled Google and The Future of Books, in which he discusses in greater detail the promises and pitfalls that Google’s success may bring to the exchange of knowledge and ideas. (To find this article, Google: “Robert Darnton” Google Settlement.)

Essentially, Darnton asks whether we should entrust such a storehouse of knowledge to a for-profit enterprise without some guarantees that such trust will not be misused.

Facebook recently set off a major protest by seeking to keep participants’ posted information after participants close their Facebook account.

Whether or not you realize it, social networking has become an established part of our world. For those who are unfamiliar with social networking, probably the best known examples are Facebook or MySpace. These are websites that allow people to create their own pages, including photographs and other personal information. Users then are encouraged to link or connect their webpage with that of their friends and relatives. When these sites gain a sizeable user base, the result is a social network, groupings of people connected on the internet and using the site as a way to keep their circle of connections posted on the important things going on in their lives. These sites usually are free, with the provider making money through advertising posted on the site and viewed by users.

If you have a teenager or a college student in your family, it is very likely that they have a Facebook or MySpace page. Interestingly, however, the fastest growing demographic in this area is now older individuals. Our children are finding that a province of the internet that they formally dominated is being populated in increasing numbers by their parents and grandparents. This concept has also moved into other areas, such as business networking through sites like LinkedIn. Many affinity groups have established their own social networks. For example, The Johns Hopkins University has is its own network, linking its alumni and alumnae, called InCircle. Robert Frank recently reported in his The Wealth Report blog in The Wall Street Journal that the rich now have their own social-networking sites, like Diamond Lounge or A Small World, but such sites are having a problem keeping the mere bourgeois or worse from showing up in their online networks.

These networking sites usually operate on an invitational basis. You can establish an account and post your information and you can invite others to link to your site. Other users can invite you to link to their sites. So, a high school student will set up a site and post pictures and information and commentary on Facebook and he or she will invite their friends to link to their site and vice versa. Business associates do the same with a site like LinkedIn. To one degree or another, all of these sites encourage participants to interact and post information, and most importantly, extend the network further, to grow their circle (and, in turn, grow the user base of the website).

On each of these sites, some or a substantial amount of personal information is placed on the user’s page. Care should be exercised in regard to what information is posted on these sites, because such information is readily accessible to anyone who has access to the site, and access may be available to anyone. Because prospective colleges or employers may search the web for information on a prospective applicant, this advice is usually directed at younger users, who often post text and pictures with respect to conduct or opinions that later may prove embarrassing. It is solid advice to all users of these sites, however. If you embark on establishing a profile on one of these sites, be sure you consider carefully your reasons for doing so and the possible consequences of the information that you post.

Now back to Facebook. When you use these social networking sites, you are subject to the terms of service issued by the site. These terms of service cover a number of areas, including the rights of the provider to regulate unacceptable conduct on the site and who has legal rights to the information that has been posted on the site. Most people do not study these terms of service in detail and they assume that the personal information that they post belongs to them. That may not be the case.

Facebook had terms of service that stated that when a user decided to leave the site and terminate his or her page, any information posted on the page would be destroyed. Recently, Facebook unveiled new terms of service that changed this provision to state that any information contained on Facebook when the user terminated would remain the property of Facebook. This change was noted by an online watchdog site, which lead to a vigorous protest against the change. This protest resulted in a cryptic withdrawal [“for now”] of the new terms of service from Facebook founder, Mark Zuckerberg. Zuckerberg’s statement left the implication that Facebook would come back with a revised, re-thought version of the new terms of service, which, once again, would stake out rights to personal information posted by users.

The immediate issue here is fairly clear. For many users, these sites have become an important part of their identity and their social connection. They invest considerable time in maintaining their site and fill it with information about themselves, often intensely personal information. They view their sites as an extension of themselves. To think that all that information will be kept by Facebook or another provider seems improper, as if the provider is stealing the user’s identity.

From the provider’s point of view, however, the information posted by users can be a valuable source of revenue. This has nothing to do with identity theft and is not unique to Facebook. Whether it is Facebook or Amazon or Google, what you do or post on the internet, coupled with your demographic profile, represents valuable information for marketing and future business development. If you have ever purchased a book on Amazon and established a customer identity, you probably receive email advertising from Amazon. When you go to Amazon to shop, Amazon provides you with recommendations of other books or products that you might be interested in buying. What Amazon is doing is using your purchasing history to predict what it might sell you in the future. If you use Amazon with some regularity and review their recommendations, you may note that Amazon does a fairly good job at targeting this research to your tastes. Personally, I measure Amazon’s effectiveness both by the number of times that it has identified items I might be interested in buying and items that I already have (purchased somewhere else).

Internet users have a justifiable concern that their personal information is protected and is not being used for purposes that are questionable at best, or worse. For Facebook to try to modify its terms of service to give it rights to users’ personal information without highlighting this change, justifiably gives rise to suspicion over what Facebook will be doing with that information.

Unfortunately, we all may want to ask such questions about many other internet businesses and services to whom we routinely give personal information of some kind; perhaps, significant amounts of personal information, and whose terms of service we may never have really reviewed. Future Tense recently reported on the privacy disasters that seem to plague many internet enterprises, including Facebook. Yahoo ended up in multi-million dollar litigation and much public censure for turning over user information to Chinese government authorities. (You can find other examples of technology businesses mishandling of personal information in the report profiled by Future Tense, Privacy and Free Speech: It’s Good for Business, from the ACLU of North California at

The problem is not that these internet enterprises are intentionally using personal information for improper purposes. The problem is more benign and, at the same time, more dangerous. As Future Tense noted in its report, these internet enterprises often are not thinking about the privacy issues involved with the personal information that they collect. They collect more information than they need, they keep it longer than they should, and they do not carefully consider the consequences of using such information in some future business application. Thus, almost unwittingly, such businesses like Facebook stumble into awkward situations in which they are putting the information that they have collected at risk.

The message here is be careful how much information you put out there on the internet about yourself, and think more about what may happen to that information and how the provider protects that information from disclosure. Your identity may not be entirely your own anymore.

Let’s talk about ESI. No, ESI is not a typo of CSI, but ESI may be as intriguing a subject as a television crime show. ESI is “electronically stored information”. As I recently learned at an ACTEC seminar, ESI is the term used in the Federal Rules of Civil Procedure, so I will use it here. Although not a defined term in those Federal Rules, it is a term that includes any type of information that can be stored electronically, is intended to cover all current computer-based information, and descriptive enough to cover future changes in information storage technology. Metadata is a subset of ESI. It encompasses data in an application, like the word count in a Word document or a formula in a spreadsheet. It also includes system data, like your history records of websites you browse on the internet.

Why should lawyers be concerned about ESI? There are two significant reasons: confidentiality and discovery.

Law firms collect lots of information on their clients, from social security numbers and birth dates to financial information and tax returns. As lawyers, we have an obligation to keep confidential information that we obtain from clients. We often incorporate this information directly into documents that we prepare (e.g., a special provision in a will) or indirectly (e.g., comments embedded in a draft document). More likely than not these days, we store such information on our computers. When we convert this information from some physical form to an electronic form, it becomes ESI.

Here is a simple example of what can go wrong. If we re-use one client’s work to create a document for another client, ESI from the original client may remain in the new client’s document, e.g. – a new will or a financial spreadsheet, even if it is not visible when the document is printed or viewed. If sent in electronic form to the new client or someone other than the first client, ESI may be “opened up”, revealing the original client’s data or hidden comments.

With technology today, more and more documents and other information on computer files are being sent back and forth electronically. This poses many questions, even if you are sending this only to a client. Potentially, others have access to what you are sending, not just the client.

When you send e-mail, it does not go magically from your computer to the recipient’s computer. It goes from your computer to your server to the server of your internet service provider and on through a similar chain on the recipient’s side. All along this chain, your communication is exposed and can be intercepted and, if unprotected, opened up and information revealed.

Assuming that what you are sending should be kept confidential, how have you protected your communication? With respect to the legal community, this is an extension of the problems just discussed about the privacy of personal information on the internet. ESI is a consideration that is too often ignored.

Because we communicate more and more through computers, when something goes wrong and litigation ensues, what is on our computers and in our ESI may be important. Many of us have no idea what ESI we have and what that means someday if a subpoena arrives requesting that we produce it. The time to discover what that means is probably not after the process server leaves.

There are systems and procedures out there to help keep ESI confidential and to help us understand what we should be doing with it, how we should store it, how to recover it when you think it is gone (intentionally or unintentionally), and how we should deal with getting rid of it when we do not need to keep it anymore and we want to make sure that it is gone. Try these sites for more information:

Also note that the ABA is holding its 3rd Annual National Institute on E-Discovery on May 22, 2090 in Chicago, Practical Solutions for Dealing With Electronically Stored Information (ESI).

Foxmarks

If you use multiple computers and want to unify your internet favorites and bookmarks across all these computers, you should give some consideration to Foxmarks. I have a desktop office computer, a home desktop computer and a laptop that I use on the road. Until February of this year, I had an extensive set of the Firefox bookmarks on my office computer, many of them law-related. When I was at home or on the road, in order to use these saved internet links, I had to make a remote connection to my office computer or take the time to find the internet site on the computer I was using.

Earlier this year, I read a column about Foxmarks by Walt Mossberg on All Things Digital (and published in The Wall Street Journal). Foxmarks is an add-on utility originally developed for Mozzilla’s Firefox browser, but now functional with Internet Explorer and Safari. Foxmarks creates a directory of your internet favorites or bookmarks on its server on the internet and then allows you to synchronize as many computers as you like, so that all those computers have your most current favorites or bookmarks.

If you have gotten this far, dear reader, you may again be asking the question, where is the technological information that I can really use in my daily life, whether at work or at home? As I stated in one of my first columns, and I echoed above, a print column that is published twice a year is a poor forum for keeping people posted on the newest technological developments. I again recommend a couple of excellent sources on which you can find cutting edge discussion of new developments and practical applications of technology.

One is All Things Digital found at http://allthingsd.com/. ATD is an online collection of commentators on technology today, including Walt Mossberg from The Wall Street Journal and Kara Swisher of BoomTown. It is one of the most interesting sites because it looks at everything from new products and services to fundamental issues of the technology industry, and the life and death struggles among technology companies.