With each new milestone in technological evolution we've seen a company emerge as the clear leader. In the current landscape, we observe this happening in several key parts of the marketplace including networking, search and operating systems.

Cloud computing is a new disruptive force that makes us ask the question whether we'll see the future of the cloud dominated by a single company. In this multi-part series, we'll take a look at a handful companies and envision what the world might look like, if, in fact, they win it all. We'll also analyze what it will take for a new company to rise up and claim the leadership role in this chapter of computing.

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Dominance Happens: A Bit of Recent History

There has been a love/hate relationship with companies that dominate markets. On one hand, it's us consumers that make it happen. But when they become giants we cheer as governement regulators and competitors knock them down.

Microsoft has faced this issue perhaps more than any company in the past few decades. When the browser battles were in full swing in the late 1990s, Microsoft was taken to court by the Department of Justice for antitrust violations.

In this note released in 2000 - Technology, Market Changes, and Antitrust Enforcement -Microsoft evaluated the idea of whether it was consistent with public welfare for a company to "win" a technology market, and what it means to have a network effect in technology.

Microsoft makes the point that no technology company will hold a dominant position for long if it doesn't innovate and expand the market definition. Additionally, if a company doesn't find the right balance of trust and pricing between its customers new technologies will find a way into the market and cause customers to defect.

Point: A Dominant Vendor Will Emerge in the Cloud

Taking these factors into consideration, we believe there are several points that can support the argument that a dominant player in cloud computing in the future. Due to the nature of market forces a single vendor will emerge as the clear leader in offering cloud solutions.

• First mover advantage: We're already seeing amazing things happen at first-movers like Amazon that are defining product and pricing. This gives them an advantage in fueling further growth and by learning and iterating the solutions in the market. Being first in an infrastructure-driven business will help them reach scale that others just can not reach easily - and potentially price it where others can't match.
• Vendor lock: Once you get started with an infrastructure provider it becomes interwoven into business operations. By the current nature of the cloud (e.g. little standards, a lot of innovation) being first with leading solutions adds more momentum to the first-mover that wins strategic customers.
• Strategic synergies: When we look at the combination of cloud computing and collaboration, we see a natural fit in services that meet more needs and take more market share. It may just work out that bundling works also in the cloud and creates the network effect that Microsoft is famous for. Cisco is also partnering across the landscape, with a focus on preparing the network for the cloud. By making it easier to manage your cloud with Cisco gear, it will provide IT leaders a reason to expand their relationships today, and stay tomorrow.
• Acquisitions and Partnerships: Companies that buy their way into the market will be a big factor in putting momentum behind their offerings. Companies to watch: VMware, Cisco, Oracle. These companies are already showing that the race is on to win the cloud through aggregation of capabilities. Cisco has a blog dedicated to Cloud Computing, Oracle is going on tour sharing its ambitions for the cloud

Counterpoint: A Dominant Company Will Not Emerge in the Cloud

Perhaps no single organization will have the ability to create a dominant foundation in cloud computing. Instead, we'll see many types of solutions as equal peers in the market.

In a way, this runs against the grain of existing technology landscape and our history with successful innovations. Maybe that is why we love the idea of the cloud itself?

• It's too big to own: One big reason to doubt a single dominant force in the cloud is that it feels like owning the Internet. Even Cisco with its strengths can't make such a claim. Perhaps the cloud is the perfect market, where the barriers of entry are low enough that continual evolution will occur.
• It's a movement, not a layer: Another argument against the cloud having a dominant player is its fuzzy definition. There are many parts and pieces to it, and it's not clear today what it would mean to "win" the cloud computing market.
• Portability will keep vendors in check: If customers demand solutions where they can move from vendor to vendor freely, it will impact the landscape. Companies with cloud solutions in the marketplace could be required by these customers to remove barriers to moving data and services between different entities. Additionally, standards and best practices may emerge that allow companies and individuals to move freely between providers. In this world, it will become a fluid market that prevents vendor lock and promotes pricing and trust as brand differentiators.

A Glimpse at Potential Futures

We've compiled a list of companies worth reviewing as candidates as possible dominant players in cloud computing. We'll be looking at their brand and the available assets that could be leveraged to achieve this position. Finally, we'll take a fresh look at what it might feel like if they succeed and shape the brave new world of cloud computing.

The list of candidates we're analyzing includes: Google, Microsoft, Apple, VMware, IBM, HP, Cisco, Amazon, Salesforce, Facebook, and our favorite, Insert new startup to our list by adding a comment below.

Please let us know what you hopes and fears are with the cloud computing marketplace. Any companies we should we add to our list (or remove)? What's your take: Is there one company today that is best positioned to win the cloud?

Photo credit: reddodo & savingfutures

(photo: plastic lemonade)

First, Sen. Richard Shelby put a blanket hold on all executive branch nominees to extort the executive branch into rigging procurement to guarantee that the company he favored won a bid on a defense contract. Oh, and he wanted the FBI to build a crime lab in his state, too.

And now Sen. Lindsey Graham is copycatting, placing a hold on the closing of Gitmo hostage to extort the Department of Justice into not having a civilian trial for Khalid Sheikh Mohammed. And Graham's not being subtle about it. In a well-researched piece for The New Yorker, Jane Mayer breaks some amazing scoops:

Rahm had a good relationship with Graham, and believed Graham when he said that if you don't prosecute these people in military commissions I won't support the closing of Guantnamo. . . Rahm said, If we don't have Graham, we can't close Guantnamo, and it's on Eric!'

[snip]

Graham told [Mayer], It was a nonstarter for me. There's a place for the courts, but not for the mastermind of 9/11. He said, On balance, I think it would be better to close Guantnamo, but it would be better to keep it open than to give these guys civilian trials. Graham, who served as a judge advocate general in the military reserves, vowed that he would do all he could as a legislator to stop the trials.

Okay, Senators Graham and Shelby? This is the U.S. Senate, not middle school. This blackmail thing? Its not like, Oh, the cool kids are wearing Hello Kitty wristwatches and you need to follow the fad.

There is zero logical nexus between whether or not to close Gitmo and whether or not to have civilian trials, so the only reason for making the kind of statement quoted above, is quid pro quo. While I'm not suggesting that this is a Hobbs Act violation (read the link, trust me), it certainly smells just as bad.

Kate Martin, the Center for National Security Studies director, warns, We can't have a situation where political pressure forces the federal government to forgo criminal prosecution. That would mean the system is fundamentally broken.

Message for Rahm, from Marcy Wheeler:

Remind me. Didn't Rove and the Bush White House get in trouble for this kind of tampering with DOJ issues?

Really, the White House needs to BACK OFF and let the Department of Justice and the federal courts do their job. And a bunch of non-lawyers with ZERO expertise in this area should NOT be part of the decision making process, much less driving that process. Hasn't Rahm done enough damage to the President with his mishandling of the healthcare bill? Why do you want him to screw up something he knows even less about?

• It's based on Android 2.1. The build currently being circulated is identified as 2.1 version 1, mirroring the update just pushed to the Nexus One last week.
• Google Goggles is now pre-installed (no matter how unhelpful it may be).
• The browser's now multitouch enabled, just like Google Maps 3.4. Huzzah! No Flash, but then again, we weren't really expecting that.
• Interestingly, the home screen's still got the same look as 2.0.1, meaning it doesn't adopt the Nexus One's rotating 3D grid of app icons -- it's still got the pull-up drawer tab at the bottom.
• No active wallpapers. Bummer!
• The news and weather widgets introduced on the Nexus One are included. Maybe certain capabilities of 2.1 are going to be restricted to devices with minimum performance benchmarks?

Motorola Droid's next update to be Android 2.1, includes multitouch browser originally appeared on Engadget on Mon, 08 Feb 2010 09:05:00 EST. Please see our terms for use of feeds.

What a time we're living in. You can't even make fun of your competitors at your own company meeting without your words leaking out to the internet.

Apparently, this has happened to Steve Jobs, who lashed out at Google and Adobe at Apple's Town Hall company meeting held at their One Infinite Loop headquarters. Speaking to Apple employees, Steve Jobs voiced his expression with buggy Flash, lazy Adobe, and Google's fakery in the don't be evil department.

Although these words have not been (and will never be) officially confirmed, multiple anonymous people from the audience confirmed their authenticity to Wired.

Here's a couple of Steve's (inexact) quotes from the meeting: Adobe is lazy. Apple does not support Flash because it is so buggy. Whenever a Mac crashes more often than not it's because of Flash. No one will be using Flash. The world is moving to HTML5.

When it comes to Google, Jobs is mad at them for trying to kill the iPhone. We did not enter the search business, he said. They entered the phone business. Make no mistake: they want to kill the iPhone. We won't let them.

Finally, his most interesting quote is about Google's don't be evil mantra. According to Daring Fireball, Jobs simply said: it's a load of crap.

Yes, I think we can safely say we were right when we said that a) the iPad and the iPhone aren't getting full Flash support anytime soon, and b) Google is now Apple's greatest enemy.

Tags: adobe, apple, Flash, Google, steve jobs, trending

Dallas Lawrence is Chair of the Social and Digital Media Practice at Levick Strategic Communications, the nation's top crisis communications firm. He blogs on emerging digital media trends and best practices for social media engagement on Bulletproof Blog. Connect with him on Twitter @dallaslawrence.

Social networks have truly come of age in the last year. No longer viewed as lonely outposts for youthful college slackers, the reach of these platforms has grown exponentially. Today, more than two-thirds of the world's Internet users visit the social networking sites that reel in billions of eyeballs every 24 hours.

Yet, despite the staggering growth of social networking, determining how to monetize social media platforms remains a tough code to crack for even the savviest of companies. As such, identifying new revenue models will be instrumental in kicking off the next cycle of the social networking phenomenon in 2010.

If Anyone Can Do It, Facebook Can

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Facebook, social networking's acknowledged leader, has surpassed every platform on the market today, corralling more than 350 million unique users globally. If any social network is poised to design a winning formula for successful revenue streams in 2010, it's Facebook. CEO Mark Zuckerberg has set an aggressive agenda for the company, publically stating that he expects social networks to become as essential as web browsers and operating systems, and he has set the lofty yet entirely realistic goal of 1 billion users worldwide.

In the less than five years since it expanded beyond scholastic audiences, Facebook has not only grabbed the lion's share of users, it has engaged them like no other platform on the Internet. The average Facebook user visits the site at least once a day and spends an astounding 55 minutes engaging friends and family - statistics that another Zucker (Jeff) would probably kill for over at NBC.

While translating such popularity into dollars and cents isn't easy - especially in an industry whose users have grown accustomed to getting something for nothing - Facebook could potentially provide a monetization template that would revolutionize social networking as we know it.

The Next Level of Advertising Revenue

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Advertising has traditionally provided the simplest means of generating revenue. PricewaterhouseCoopers reported in October that Internet advertising revenues totaled $10.9 billion for the first half of 2009. It's been estimated that Facebook alone took in $435 million of that total. But for a site with nearly half a billion users, a quarter of which spend more time within the network than watching television, these numbers represent just the beginning potential.

First, Facebook needs to admit to itself that it is in the business of selling ads. By better managing its advertising network, intelligently expanding its marketing options, and developing workable social ads that leverage the branding power of friends and connections, Facebook can begin to capture its rightful share of online ad revenues. The final piece is to increase awareness and understanding of Facebook ads among corporate decision makers.

For example, every executive in America today understands the value of purchasing Google ads - and that didn't happen by accident. Google understood that what caused it to dominate online search wasn't going to ultimately position the company as a global corporate powerhouse valued at nearly $200 billion. Google's aggressive marketing, communications, and lobbying shops have worked to ensure every ad buyer, political campaign, marketing executive, and public relations flack knows the value of the service and has direct and easy access to account executives who explain the much worshiped ROI Google ads provide.

Today, Facebook stands on the precipice Google inhabited just before it became a top money-maker. By taking a page from the Google playbook, and aggressively marketing and explaining its power to influence buying decisions, Facebook ads could become as essential to 21st Century marketing as the yellow pages were in the 20th Century.

E-Commerce Stop Sending Customers Away

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The launch of Facebook as a true e-commerce site holds immense potential as a business solution and could forever change the way we shop. Online purchases through the first three quarters of 2009 totaled $98.3 billion according to the Department of Commerce. For the majority of companies selling products online who are also engaged on Facebook, opening Facebook fully to direct e-commerce transactions will dramatically change how businesses advertise and how consumers buy goods online.

Consumers and companies would flock to a Facebook storefront for one simple reason: We do everything else there. Imagine an integrated, one-click solution whereby your friends see your recent purchases (because you were incentivized by the brand to share your information) in their feed and are able to simply point, click, and purchase the same item.

With a few adjustments, companies can make timely offers of birthday gifts for friends, travel arrangements for event items, or the latest music from favorite artists - and make the sale without forcing the user to leave Facebook or put in new login information.

Rather than driving their 350 million users away from the platform to close the deal with retailers and purchase the item on an external platform, Facebook could benefit financially by charging companies a percentage of sales, a fixed rate to have a storefront, or from increased advertising opportunities.

Premium Subscription Options

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Finally, whether users like it or not, Facebook will do itself a long term disservice if it does not consider premium subscription options. Users (whether they are corporations or teenagers) are amenable to paying for even the simplest features and functionality, as evidenced by the success of Facebook gifts.

Nothing good in life is free. It's a stark, mature reality that Facebook (and its users) need to face in 2010. By leveraging economies of scale, Facebook can churn a sizable profit without alienating users. Would you pay one dollar a month to share higher-resolution photos or upload higher-quality or longer videos? Last month, 2.5 billion photos were uploaded to Facebook. Even if only a quarter of the site's active users opted for premium options, this one change would generate more than $1 billion in annual revenues.

Improving advertising, developing an e-commerce platform, and adding subscription services will not only generate the revenue necessary to make the transition from highly adopted to highly profitable, it will open revenue streams as Google did before for the next generation of digital developments.

More business resources from Mashable:

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- Social Media Marketing: How Pepsi Got It Right
- 5 Ways Small Businesses Can Avoid Social Media Panic
- HOW TO: Take Advantage of Social Media in Your E-mail Marketing
- HOW TO: Implement a Social Media Business Strategy
- 18 Online Productivity Tools for Your Business

Image courtesy of iStockphoto, peterspiro

Tags: advertising, business, e-commerce, facebook, MARKETING, monetization, monetizing, money, social media, social networks

Nemet Chevrolet Ltd. v. ConsumerAffairs.com, Inc., No. 08-2097 (4th Cir. Dec. 29, 2009)

Introduction

Citing 47 USC 230, today the Fourth Circuit upheld a 12(b)(6) dismissal of defamation and related claims against a consumer review website. This case is noteworthy because the court rejected some common allegations that plaintiffs make to evade 230, so this case may help defendants get 12(b)(6) motions to dismiss more easily.

ConsumerAffairs.com is a consumer review website with a twist: it works in conjunction with a law firm that mines the submitted complaints for potential class action lawsuits. In June 2008, I blogged about the district court's 12(b)(6) dismissal of the case.

Development of the Reviews

Nemet tried two tactics in its complaint to draft around 230. First, it alleged that ConsumerAffairs.com partially developed 20 reviews. Nemet pled:

Upon information and belief, Defendant participated in the preparation of this complaint by soliciting the complaint, steering the complaint into a specific category designed to attract attention by consumer class action lawyers, contacting the consumer to ask questions about the complaint and to help her draft or revise her complaint, and promising the consumer that she could obtain some financial recovery by joining a class action lawsuit. Defendant is therefore responsible, in whole or in part, for developing the substance and content of the false complaint . . . about the Plaintiffs.

These allegations do not survive a 12(b)(6) motion to dismiss.

* the website "structure and design" argument fails, despite Nemet's attempt to invoke Roommates.com, because ConsumerAffairs' structure was not illegal. To me, the court's discussion reinforces that Roommates.com' real holding is If you don't encourage illegal content, or design your website to require users to input illegal content, you will be immune. Chalk this case up as yet another citation of Roommates.com for the defense.

* Asking users questions about their posts does not qualify as development.

* The unsupported assertion that ConsumerAffairs edited posts did not pass the Iqbal standard. Plus, as Zeran indicated, 230 protects editorial decisions, so the allegations needed to assert some editing beyond this protected zone.

Review Fabrication

Second, Nemet alleged that ConsumerAffairs fabricated 8 reviews. Nemet pled:

Because Plaintiffs cannot confirm that the [customer] complaint . . . was even created by a Nemet Motors Customer based on the date, model of car, and first name, Plaintiffs believe that the complaint. . . was fabricated by the Defendant for the purpose of attracting other consumer complaints. By authoring the complaint . . . the Defendant was therefore responsible for the substance and content of the complaint.

This allegation has an obvious (and IMO embarrassing) logic flaw. Even if Nemet can't use its records to validate the facts in a consumer review, ConsumerAffairs.com's fabrication of the post is only one of many possible explanations. The court notes some other possible explanations: "the post could be anonymous, falsified by the consumer, or simply missed by Nemet." (I would also add the possibility of weak recordkeeping by Nemet). To try to get around this logical deficiency, Nemet marshals up some additional allegations:

(1) that Nemet has an excellent professional reputation, (2) none of the consumer complaints at issue have been reported to or acted upon by the New York City Department of Consumer Affairs, (3) Consumeraffairs.com's sole source of income is advertising and this advertising is tied to its webpage content, and (4) some of the posts on Consumeraffairs.com's website appeared online after their listed creation date

But all of these facts are non-sequiturs; none of them show that ConsumerAffairs fabricated the posts, and post-Iqbal these allegations are not enough to state a claim. The dissent disagreed with this conclusion (about the alleged fabrication) and would have allowed those claims to proceed.

230 as an Immunity Redux

In FN 4, the court notes that the Seventh Circuit questioned if 230(c)(1) was just a definitional section. Citing Zeran, which addressed this issue explicitly, the court says "Of whatever academic interest that distinction may be, our Circuit clearly views the 230 provision as an immunity:" As a result, the court "aim[s] to resolve the question of 230 immunity at the earliest possible stage of the case because that immunity protects websites not only from 'ultimate liability,' but also from 'having to fight costly and protracted legal battles.'" It looks like there could be a brewing catfight between circuits over whether 230(c)(1) is an immunity, an affirmative defense, a definitional section or something else.

Conclusion

Given that this court was bound by the Zeran precedent, it's perhaps not surprising that the court found 230 protection for a consumer review website. Nevertheless, by rejecting another plaintiff's attempt to make hay from Roommates.com and rejecting weakly supported allegations of fabrication, this court gave defendants even more support to fend off claims that are, at their core, based on third party content.

The updated census of Roommates.com citations:

Roommates.com Cited for Defense (11 cases): GW Equity v. Xcentric, Best Western v. Furber, Goddard v. Google (and second ruling) Joyner v. Lazzareschi, Atlantic Records v. Project Playlist, Barnes v. Yahoo (note: although the case was a partial loss for the defendant, the Roommates.com discussion came in the defense-favorable part), Doe IX v. MySpace, Doe II v. MySpace, Dart v. Craigslist, Shiamili v. Real Estate Group, Nemet v. ConsumerAffairs

Roommates.com Cited for Plaintiff (2 cases): NPS v. StubHub, FTC v. Accusearch

You need a pile-o-data fast and you got nowhere to get it other than surf, bookmark and beg for interns to copy and paste for you. Where do you turn? Your IT department? Your hackery skills and your shared GoDaddy hosting account for bandwidth? Nah.

80Legs is ready to run a couple miles with your pile of data on their shoulders. You get to pick it up and work with it as you see fit.

Did I mention that they are now offering this as a free service? Well, up to a certain point it is free but for the many is plenty of room to get what they're looking for.

80Legs offers a unique service that will crawl the internet on your behalf and gather data from the links that you provide. They then take this unstructured data and make it available for further refinement to the customer.

Their value proposition lies in the ability to deliver this service efficiently and affordably. Like I said earlier, it would be difficult if not impossible for an individual run a service to crawl 100,000 pages quickly. 80Legs is offering this as a free service now and it's all powered by a 50,000 computer network.

The ability to put the data collection into another companies hands allows developers to think about what to do with the data. By freeing up developers more can be done with the data that is returned to them as they have time to think about new algorithms to run across the dataset.

An example of this would be simple search. Developers with more time could work on creating new layers to search that make it more valuable to the end user. Whether it is integrating advanced search functionality or returning results contextually depending on the page that a user is currently searching from.

If you're interested, the free Basic specs are below. Plus and Premium are listed on their blog.

80Legs Basic Plan:

• Free to use
• Normal crawling speed (up to 1 request/second/domain)
• Access to 80legs Web Portal
• 1 job running at a time
• Up to 100K crawled pages per job
• Low priority in 80legs job queue
• No recurring jobs allowed

[Via VentureBeat]

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80Legs, 50k Computers and a Web Crawler is a post from: TechStartups.com

Electronic Frontier Foundation (EFF), a non-profit group dedicated to defending the freedoms of individuals in the digital age, thinks the U.S. government may be violating the privacy of individuals who post content to Facebook and Twitter.

The organization has filed suit in San Francisco's U.S. District Court, Northern District, against the Department of Defense, the CIA, the Department of Homeland Security, the Department of Justice, the Department of the Treasury and the Office of the Director of National Intelligence in order to get information concerning the government's use of social-networking websites for investigative and data gathering purposes to help inform Congress and the public about the effect of such uses and purposes on citizens' privacy rights and associated legal protections.

According to the complaint, EFF is aware that the government is using content posted to social media sites in their investigations. After their initial requests for more information and documentation on the specific policies around these activities went unanswered, the EFF began seeking a court order to force the government's hand in full disclosure.

One of the incidents cited in the complaint was the widely publicized FBI search of an activist's home, which came after the man in question used radio scanners to post the movements of police on Twitter during the G-20 Summit.

From the complaint:

Although the Federal Government clearly uses social-networking websites to collect information, often for laudable reasons, it has not clarified the scope of its use of social-networking websites or disclosed what restrictions and oversight is in place to prevent abuse.

While it should come as no surprise that the government would be monitoring social media sites for information (earlier in the year the White House sought to hire a social media archivist, while the CIA invested in a social media monitoring firm), it does seem that the EFF has a valid complaint, and that the public should know the scope of the government's monitoring activities.

The full 8-page complaint is embedded below. We're curious to see how this all plays out, so we'll keep you posted on new developments.

[via Bloomberg]

Tags: EFF, lawsuit, social media monitoring, trending, Trending Stories, US Government

On my way to the Audience Conference this morning I was fortunate enough to have the bus drop me right in front a Verizon store. The balloons were out and I knew that is meant one thing . . . Droid.

At 7:30 a.m. there was no line and I was able to go straight in the store where the associates outnumbered the patrons. That is saying a lot because in New York mobile stores are always busy.

It was obvious though that the people in the store were nerds of the first order, though. One glance at the khaki pants, bad leggings and dishevled fauxhawks let me know the IT department had arrived. My people.

I was able to avoid ending up on a list to buy the heralded Droid and step right up and start fondling it with my geek gloves. Geek gloves, btw, are similar to kid gloves but they hold a special reverence and care for gadgetry.

After a hands on I can tell you that the device is gorgeous, lighter than you would expect and blazing fast on Verizon's network.

Here's how it went down: I immediately flipped it open to expose the QWERTY keyboard to get my hot thumbs typing in URLs to load up some internet goodness. For sites with Android style sheets it loaded them right up without more than a 2 second delay. For full sites it took a bit longer but seemingly quicker than the iPhone. I know, I should have done some AB testing but the overly chatty associates might have asked me to move it along.

The screen is clear, bright and has a large surface area that is welcome to fat fingers like mine. I was able to press icons with the phone with ease and get them open quickly. Which was a surprise to see them load so quickly.

Since this is a cursory overview of the phone I can say that I have only one gripe the keyboard is shifted left. Which forces the use to type mostly with the left hand. I want two hand glory on this sucker to rip out blog posts.

All in all, I was happy testing it out and probably will pick one up in the next few weeks.

DISCLOSURE OF MATERIAL CONNECTION: http://cmp.ly/0

The Droid Doth Be Here Initial Review is a post from: TechStartups.com

Soren Gordhamer is the author of Wisdom 2.0: Ancient Secrets for the Creative and Constantly Connected (HarperOne, 2009). His homepage is www.sorengordhamer.com. You can follow him on Twitter.

As a company, Whole Foods has impressively embraced social media more than most, gathering over 1.2 million followers on Twitter and 123,000 fans on Facebook in the process. While it is easy to understand why a relatively young company or one started by a tech-savvy founder would so completely embrace social media communication tools, it is quite a bit more remarkable for an almost 30 year old established brick and mortar company with roughly 50,000 employees and over 270 stores worldwide to have done so.

I recently visited the Whole Foods headquarters in Austin, Texas to meet with members of their new media team, including Bill Tolany, the company's Senior Coordinator of Integrated Media, and Winnie Hsia, who oversees the @wholefoods account. I wanted to know how Whole Foods integrated social media tools into their communications strategy, and what lessons had they learned from doing so. Below are five of the lessons that Whole Foods shared with me during our chat.

1. Make Content Increasingly Relevant

Whole Foods started initially with just the @wholefoods account but as it gathered followers, they realized it had limitations: while it was useful for news with national appeal, it was less so for sharing local information or addressing specific interests of customers. A percentage of their followers, for example, might be interested in an event happening at their New York City store or reviews of certain food items, but many others would not be interested.

To address this, they encouraged all their stores to start their own accounts and tweet about events at their store and news related to that local area. They also created separate accounts for specific issues, such as one for wine and one for cheese, where the head of those departments post and interact with customers. In fact, with over 150 company Twitter accounts and new ones added regularly, they likely have one of the largest corporate presences on Twitter. The goal with so many different accounts is to create increasingly relevant, and often local content.

2. Go Where Your Customers Are

When asked how they initially decided to use Twitter as a platform, which was pre-Oprah and before most other companies their size had done so, they emphasized that their goal has always been to interact with their customers no matter where those customers are. As Twitter gained momentum, they realized that a presence on it made sense, though they never foresaw that they would get over a million followers and how much staff time it would take to manage.

The conversation with customers, however, is essential to the company, whether it happens in person at a store or on a social network. Whole Foods, in fact, is active on numerous social media communication channels, not just Facebook and Twitter: they also have a Flickr page, an actively updated blog with videos on cooking healthy meals, and have employees responding on the customer feedback site Get Satisfaction. The goal is not just to pick one place and force customers to come to them, but to meet customers on their home court, wherever that may be.

3. Loosen Control from the Top

Likely the most difficult task for any large company when embracing social media is learning to let go of control. On one hand, most companies will want millions of followers on sites like Twitter, yet on the other hand, large corporations also tend to be cautious when taking risks. They're unsure how much control they are willing to relinquish when it comes to governing how social media is used.

Whole Foods seems to really understand that such a top-down approach does not work in the age of social media. In fact, I was initially surprised that several people I interviewed while at the company headquarters that managed different corporate Whole Foods Twitter accounts used them quite differently from each other. Some, for example, shared personal information while others kept posts strictly to business. When I asked Tolany, who oversees the department, about it, he said that it did not surprise him at all. While they encourage some basic guidelines, Whole Foods has learned that for social media to work well, whoever is managing an account needs to be authentic, allow his or her personality to come through, and have fun in the process. If management tries to exercise too much control, the account will be less likely to succeed at engaging people.

4. Decide What Channel to Use for What Purpose

With a presence on so many social networks, Whole Foods tries to figure out how best to use each service. For example, they have found that for customer service, Twitter is much more effective than Facebook. On Twitter people can easily @reply a question and they can quickly respond. On the other hand, for rich media, including embedding videos or longer posts or responses, Facebook tends to be better. Likewise, for posting original content, their blog serves as the hub, allowing staff from various departments to share material. The company also created a nifty iPhone application with 2,000 searchable recipes and a store locator, which is a great platform for disseminating static information.

5. Let the Conversation Happen

My visit to the Whole Foods headquarter came at an interesting time. The previous week, Facebook, Twitter, and various blogs were ablaze with (mostly negative) comments in response to Whole Foods CEO, John Mackey's, Op-Ed in The Wall Street Journal titled The Whole Foods Alternative to ObamaCare. We did not dive too much into the Mackey Op-Ed issue, but we did talk about whether having such a strong presence on Facebook and Twitter has allowed people to more easily express anger at them. During our conversation it became clear that Whole Foods realizes that people are going to talk about the company, both positively and negatively, whether they are have a presence on social networks or not. It is helpful, though, to know what people are saying and to be able to respond if necessary.

In fact, when Mackey responded to some of the criticism on his company blog, rather than turn off comments to the post, they encouraged people to express their feedback, and greater than 3,000 people did.

Conclusion

The central take away I got from my visit was the importance of engaging with one's customers no matter where they spend time. When I asked Tolany and Hsia what advice they would give to companies thinking of using social media channels like Twitter, they seemed to both agree that the first task is to know if your customers (or the potential customers you want to engage) are present there. Then and only then does it make sense to invest time on a site.

I also got that part of what has motivated Whole Foods' efforts in social media and what can account for much of their success is a willingness to be bold and take risks. Such boldness can of course have its dangers (such as when writing Op-Ed articles about delicate social issues) yet this has also helped them plow ahead in social media while other businesses their size waited cautiously in the background to see if it was safe or if these sites would gain in popularity.

Of course, any time a company opens up and has a presence on a communication channel like Facebook or Twitter, users can use those sites to criticize as much as to praise. Dealing with negative feedback, however, is better than not having a presence at all. I think Whole Foods is showing that the companies who keep such channels open, and listen to the unpleasant along with the pleasant feedback, will better know what matters to their customers and what company policies may need to change, which is likely to win them support in the end.

Whole Foods, like many other companies, is still finding its way in this age of social media, but they are showing that a non-technology company of their size can engage and innovate in this area.

More social media resources from Mashable:

- Should Your Company Have a Social Media Policy?
- 10 Must-Haves for Your Social Media Policy
- 6 Must-Follow Steps for Selling in Any Economy
- 5 Easy Social Media Wins for Your Small Business
- 7 Secrets to Tweeting Your Corporate Culture

Tags: blogging, business, engagement, facebook, social media, twitter, whole foods

Facebook is really flexing its muscles today. First it acquired radically innovative social network FriendFeed and now it has announced that it's opened up search across all status messages, notes and shared links that users have marked as public. (Don't worry, yours aren't public unless you changed your own settings.)

Searching across all users, whether you know them or not, requires a couple of clicks - but the availability of the feature marks a dramatic turning point in the history of Facebook. For months the company has been pushing users towards being more public and less private. This is why.

Sponsor

Google still can't index the contents of Facebook, because Facebook is positioning itself as a major competitor to Google. There is no RSS feed available for searches, even updates marked public are only public within the walls of Facebook, not on the open web at large. Developers can't build innovative new applications on top of the new Facebook search. It's a walled garden - why would you ever want to leave when Facebook can fill all your needs as a user?!

There's something creepy about this. We've asked before if Facebook is a cult and we've discussed how its privacy moves represent an agenda that praises privacy but doesn't support the kind of privacy people experience in real life. (You share different things with different people, depending on the context.) You probably joined Facebook because you thought it was a secure place to converse with friends and family. It may still be, but the company sure would like it if you'd please lift the lid and let the world search and view those conversations.

People routinely use the Internet to find former classmates or individuals with similar interests.... there is no reason why law enforcement should not use this same resource to find fugitives or encourage members of the public to use social networking sites to report sightings of criminals.

Daniel Boyd and half-dozen of his alleged recruits in the Raleigh, N.C. area were charged with providing material support to terrorism.

The Justice Department in Washington said Boyd, who is a U.S. citizen, trained in Afghanistan and fought there between 1989 and 1992 before returning to the United States.

Boyd and the other defendants were scheduled to appear in federal court in Raleigh.

A newly unsealed indictment charged that Boyd, also known as 'Saifullah,' encouraged others to engage in jihad.

Boyd allegedly traveled to Israel in 2007 with several of the defendants, hoping to engage in "violent jihad," according to the indictment. The attempt was unsuccessful, though, and the men returned home, officials said.

Boyd was also accused of trying to raise money last year to fund others' travel overseas to fight.

One of the men, Hysen Sharifi, allegedly went to Kosovo to engage in violent jihad, according to the indictment, but it's unclear if he did any actual fighting.

Several of the defendants, including Boyd, were also charged with practicing military tactics on a private property in Caswell, County, N.C. in June and July of this year.

Retired NYPD sergeant Dexter Brown was shot in the 1998 incident and sued the city and police department. It was revealed recently in court papers that the shooter, Det. Luis Lopez, was assisting in the arrest at a Brooklyn crack house. The city Law Department says the shooting was accidental and did not admit wrongdoing.

Brown walks with a cane and suffers chronic pain from damage caused by the shooting. The 45-year-old is retired on disability and cannot work. Brown says he feels vindicated his story came out. The settlement was reached Monday, as the trial was to begin.

Steven Levy, who was embedded with us during our State Department trip to Iraq this past April, has a feature story in this month's issue of Wired:

Andy Borowitz: Goldman Sachs in Talks to Acquire Treasury Department

In what some on Wall Street are calling the biggest blockbuster deal in the history of the financial sector, Goldman Sachs confirmed today that it was in talks to acquire the U.S. Department of the Treasury. . . .

"The Goldman spokesman said that the merger would create efficiencies for both entities: "We already have so many employees and so much money flowing back and forth, this would just streamline things."

Mr. Hestron said the only challenge facing Goldman in completing the merger "is trying to figure out which parts of the Treasury Dept. we don't already own."

Goldman recently celebrated record earnings by roasting a suckling pig over a bonfire of hundred-dollar bills.

EDITOR'S NOTE: This post is in response to an email FAIL Blog received from an attorney representing Guinness World Records Limited.

Dear Sir/Madam,

Thanks for writing us an email regarding the Record Breaking Fail. Unfortunately, douchebaggy cyber-bullying emails will only bring upon you more shame on your house. I am also resisting the urge to write this email in ALL CAPS.

I believe it is the duty of FAIL Blog(TM) to call out organizations when they encourage the public to do such things as Break the record for the Most Individuals Killed In A Terrorist Act. We firmly believe that our publication of your fail is protected under the concepts of fair use, commentary and non-trademark use. Please RTFM and we welcome you to teh interwebs.

Since we at FAIL Blog(TM) don't have a legal defense department, we have complied with your request to remove the trademarked term and logo from the original image. We have used the naughty bits filter on the image to secure your naughty, naughty, trademark assertions. However, we have posted your email so that our audience can see why we had to remove the name of the failer from the image. I hope that this is the outcome you have expected as now NO ONE WILL EVER KNOW THAT GUINNESS WORLD RECORDS LIMITED HAS FAILED.

The full legal response can be read here: icanhaz.com/legalresponse

Cheers,
FAIL Blog

P.S.: This is what we think of your letter.

If you are going for an interview as a prospective employee then you should do some research. Read the job description and requirements carefully. Browse the web site to see how the organization presents itself. Search for news items and comments about the company on news sites and blogs.

For the interview itself you should dress smartly and appropriately. It is important to have some questions prepared and here are a few that could really help:

1. What exactly would my day-to-day responsibilities be? It is essential that you clearly understand your role and the tasks that you would be expected to undertake. It is easy to make assumptions and get the wrong impression of what the work would be so it is vital for both sides that there is clarity in what is expected of you. If the interviewer cannot give a clear answer then this is a worrying sign, so politely follow up with more questions. Some people even ask to see exactly where they will sit.

2. What are the opportunities for training and career advancement? This question serves two purposes. It helps you to understand where the job might lead and what skills you might acquire. It also signals that you are ambitious and thinking ahead.

3. What is the biggest challenge facing the organization today? This sort of question takes the interview away from the detail and towards strategic issues. It allows to you see and discuss the bigger picture. It proves that you are interested in more than just the 9 to 5 aspects of the job. It can lead to interesting discussions that can show you in a good light - especially if you have done some intelligent preparation. If appropriate you can follow up this question with some questions about the objectives of the department and the manager who is interviewing you.

4. When did you join? After the interviewer has asked a number of questions about you it can make a good change to ask a gentle question about them. People often like talking about themselves and if you can get them talking about their progress in the company you can learn useful and interesting things.

5. What are the criteria that you are looking for in the successful candidate for this position? The job advertisement may have listed what was wanted in a candidate but it is very useful to hear the criteria directly from the interviewer. The more that you can discover about what they want and how they will make the decision the better placed you are to influence that decision.

6. How do you feel that I measure up to your requirements for this position? This follows on naturally from the previous questions. It may seem a little pushy but it is a perfectly fair thing to ask. In sales parlance this is a trial close'. If they say that you are a good fit then you can ask whether there is any reason you might not be offered the job. If they say that you are lacking in some key skill or attribute then you can move into objection handling mode and point out some relevant experience or a countervailing strength.

7. Would you like to hear what I could do to really help your department? If you want the job then this is a great question to ask at the end of the interview. Most interviewers will reply, Yes.' Drawing on what you have learnt in the conversation, you can give a short sales pitch on why you fit the criteria and why your strengths and ideas will siginficantly assist the boss to meet their objectives. Make it short, direct and clear with the emphasis on the benefits for them of having you in the team. At the end ask something like, how does that sound?'

Many candidates take a passive role at the interview. They competently answer the questions that are put to them but they never take the initiative by asking intelligent questions that steer the interview in a helpful direction. If you are a proactive candidate who asks the sorts of questions given above then you will be seen as more dynamic and you will significantly increase your chances of being offered the job.

Paul Sloane is an author and speaker on leadership, innovation and lateral thinking. His most recent book is The Innovative Leader. He helps organizations improve innovation, creativity and leadership. He is the founder of Destination Innovation. He has written 15 books of lateral thinking puzzles and hosts the lateral puzzles forum.

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On Tuesday, President Barack Obama nominated Sotomayor, a judge in the 2nd U.S. Circuit Court of Appeals, to the replace the retiring Justice David Souter. The former private IP lawyer's cyberlaw decisions ranged from copyrights in a digitized world to warrantless computer searches, so-called click-wrap agreements and the Patriot Act .

In 2002, Sotomayor wrote a decision (.pdf) nullifying Netscape's online click-wrap agreement, which demanded binding arbitration of disputes between Netscape and its customers. The free download button for Netscape's browser software was high on the web page, with the user-agreement well below.

We conclude that in circumstances such as these, where consumers are urged to download free software at the immediate click of a button, a reference to the existence of license terms on a submerged screen is not sufficient to place consumers on inquiry or constructive notice of those terms, Sotomayor wrote.

Consumers sued Netscape claiming browser cookies amounted to illegal eavesdropping. Netscape claimed the click-wrap agreement demanded out-of-court arbitration. As we all know, it turned out that cookies are lawful and mostly harmless.

In a December case, Sotomayor joined in a unanimous appellate decision on the 2001 Patriot Act. The ruling limited the application of the automatic gag orders that bind ISPs that receive an FBI national security letter a type of self-issued subpoena demanding information on a customer.

If confirmed, she will be the first justice who has written cyberlaw-related opinions before joining the court, the TechLaw blog wrote.

As a New York District Court judge in 2007, the nominee ruled that The New York Times could digitize and sell freelancers' work, despite the writers' claims of copyright infringement. The Supreme Court reversed her decision. The court is current set to hear that case again, and Sotomayor would likely have to recuse herself from the rehearing.

In 2001, as an appellate judge, she upheld (.pdf) the warrantless search of a New York Department of Transportation computer. The accountant was suspected of neglecting his duties and the government searched his computer without a warrant, leading to his job loss. The authorities found unauthorized accounting software on Gary Leventhal's computer, which was believed to be used for his private accounting practice.

The searches, Sotomayor wrote, were reasonable in light of the DOT's need to investigate the allegations of Levanthal's misconduct as balanced against the modest intrusion caused by the searches.

See Also:

• Free-Lancers Have Just Begun to Fight
• Court Narrows National Security Secrecy, Limits Oversight

The story goes like this: the Boston Police tweet about incidents on the streets of Boston; one of their tweets was the following:

INJURED OFFICER: Officer from district 4 transported to Beth Israel Hospital, human bite to arm, suspect in custody.

A user named @willcady asked the following:

@Boston_Police if that was a zombie bite, would you tell us?

to which @Boston_Police replied:

@willcady Yes, absolutely

This short exchange, amusing as it may be (the subsequent Reddit thread is equally hilarious) tells us more about the benefits of Twitter as a tool for corporations/governments/public services than any study can. Twitter is the ideal channel for the Boston Police dept. to show its human face. I can't imagine any other communication channel that would be better used for both disseminating timely and essential information and creating a better public image for such an institution. Can you imagine a police department cracking jokes in their official PRs, or even at their own web site? On Twitter, however, it feels natural, and when you put the right person behind that Twitter stream, you can really show that you care about your users, customers, or - in this case - citizens.

Furthermore, it shows the importance of actually using Twitter as it's intended to use, not only as just another place to dump the contents of your RSS feed. Yes, you can do that, but then no one will actually read your tweets. But if people recognize that there's a real person updating those tweets, someone who really has something to say, Twitter can do wonders for your public image.

See also: The 7 Ways to Approach Twitter

Image courtesy of iStockphoto, Jodiecoston

Tags: Boston Police, twitter

Yesterday I was lucky enough to visit Zappos and get a tour and talk with some of their executives, including Tony Hsieh, CEO.

Up until now most of what I knew about Zappos was that they had a lot of people on Twitter (434 of their 1,500 employees are on Twitter with more joining every day).

I thought I was going to Zappos to study how Zappos uses social media and get an interview about that for Building43, the community Rocky and I are building for people who are fanatical about the Internet.

But within 10 minutes of walking in the front door I realized that there's a lot more to Zappos than that they get Twitter. More on that later, because Tim O'Reilly demonstrates some of Silicon Valley's worst beliefs about Twitter when his conferences advertise learn the secrets of building 100,000 + followers. Zappos does NOT believe that is the goal of Twitter, more on that later in this post. Aside: if you want to attend a Twitter Conference that focuses on real business value and community engagement, come to 140: The Twitter Conference.

Before we even got to the front door tons of employees said hello. That's weird, doesn't happen at most companies, believe it or not. And the way they greeted each other told me something else was up here.

Then when we got into the front lobby we were warming greeted again, and then as we looked around, we saw this wasn't going to be a normal visit to a normal company. There was a book store with books free for the taking. There was a popcorn machine. A Dance Dance Revolution machine. A hall of fame board for employees who had pushed reply to all too quickly. And a video display that showed off how many sales were made yesterday. I had never been in a corporate lobby like this before.

Then I hooked onto a tour given by Zappos' Mayor, Jerry Tidmor. Oh, yeah, everyone has weird titles. Executives are called monkeys. One employee's title was, simply, fred. Causes him a lot of fun when he tries to get a badge at conferences.

Along the way Jerry showed us office after office that was decked out with some fun weird theme. I had seen some of this at other places like Google and my new employer, Rackspace, but Zappos gets everyone into it. The lawyers' offices even hold the Christmas tree (they have Christmas twice a year at Zappos. Why? Why not?).

In one office they set up a bowling alley. That was a lot of fun for the Rackspace employees who were here for discussions.

They are transparent with all their numbers. All employees know how they are doing and so does the public. The numbers are on a white board on the tour for all to see and take pictures of. This picture is of Jerry standing in front of the board with the up-to-date numbers.

During a lunch session with Zappos monkeys we asked how they handled a recent layoff. We noted that the employees who were laid off were incredibly positive. The answer: they did it in open with everyone understanding the reasons for it. They did it fast and didn't drag their feet. So when they did it they had enough cash to give everyone a good severance package. They said if they had waited to see if business conditions would improve they wouldn't have been able to do that.

Anyway, so what can Silicon Valley learn from Zappos?

1. You don't need to be in San Francisco to build a great company. Zappos actually started in the same building as Craig's List. They moved to Las Vegas because it was cheaper and because they saw they could build a better company. The other half of the company is a warehouse in Kentucky. That's there because that's where UPS is, so they can take your order in the evening and have it on your doorstep the next day.

2. Focus on culture and build something for long term. Tony's first company, Link Exchange, was sold because it wasn't fun anymore, he told me. That's why he focused so much on culture when he got involved with Zappos. I see so many companies who focus on growth and get exactly what they want: an unfun fast growing company that falls apart later.

3. Get rid of assholes. Zappos has a filtering system before, during, and after hiring to make sure they get rid of people who don't fit the culture. That is the nice way of saying they get rid of assholes and they get rid of them quickly. They even pay candidates $2,000 after they go through training if they can admit they don't fit into the culture.

4. Get a coach. Zappos has its own coach. His name is Dr. Vic. He meets with every employee. Takes their picture. Learns what they are about and helps them get their career moving. Plus he writes a blog for everyone else's company.

5. Share with others. Zappos gives tours to everyone to share what they've learned. You can take the tour too, I highly recommend it if you are in Las Vegas. tours@zappos.com will get you a date and a time. Oh, did I mention they pick you up from the airport? And that they carry your bags? And that they are, well, um, nice?

6. Train, train and train some more. Zappos has a whole department that puts together classes. Your pay goes up the more classes you complete. Plus they have all those free books in the lobby.

7. Enable all employees to be spokespeople. Every single new hire at Zappos is asked to start a Twitter account and post a few times to it during training. After that they don't care if you keep it up. Why do they do that? They want to rub it in that EVERYONE in the company is a public spokesperson for Zappos, not just the CEO or PR team.

8. Everyone lives by same rules. During the tour we heard of a new hire that was fired during training for not showing up on time and giving some lip. This was a high level technical person that they really could have used. Silicon Valley companies would put up with that kind of behavior. Not at Zappos. Everyone, from executive recruits on down are expected to live to the same rules.

9. The CEO's office isn't sacrosanct. Tony enouraged us to throw peanut shells on his office floor. Why? That happens every day, we learned, as tours come through. But it's a subtle message that Tony isn't above anyone else in the company and that his door isn't just open, but that you can come in and mess up his work space.

10. Create a welcoming culture. Every department, as we walked in, said hi in a different way. Here's the casual department who waved these little clappy hands at us. Other departments had other kinds of noise makers. The Fashion department took pictures of us while they played music.

11. Everyone is a VIP. Both internally and externally everyone gets the VIP treatment. This means all sorts of little things all across the company. Vendors, when they come to Zappos, get their bags carried. That wins them accounts. In our case we had our tripods and cameras carried and our every need catered to.

12. Create an atmosphere for both goofiness and brilliance. Every conference room was decked out with personal touches. It gets you in the mood for creative discussions. Here Rackspace employees are meeting with Zappos employees and learning more about Zappos. Notice all the weird touches on the table, the walls. It's hard to take yourself too seriously there.

13. Root out hubris and kill it. This is mostly a note to myself, but I know lots of San Francisco companies who this could apply to just as well, too.

14. Follow your employee's and customers' passion. How did Zappos get into clothing? Their customers and employees were passionate about it.

15. Don't be religious about what's working. Having 400 employees on Twitter is clearly working for Zappos but Tony, at one point, told his employees to talk to me about friendfeed. They are always looking for the next idea. By the way, here's everyone who is saying something about Zappos on friendfeed. I love this quote from Forrester's CEO, George Colony (Tony is speaking at the Forrester Conference today): When asked why he was on Twitter, Tony Hsieh, Zappos CEO said: People relate to people, not companies.

16. Be religious about taking care of customers. Tony loves telling the story about when they got pizza ordered for them by Zappos help desk (they didn't know who was calling). Every employee is empowered to take care of customers and get their problems solved.

17. Reward greatness. Every employee can give a $50 bonus to any other employee. Does it get misused? Not often and when it does it's easy to solve.

18. Remember most policies are to take care of edge cases. They resist writing new policies at Zappos. When they do write a policy, they make sure it really is needed across the company. Usually policies get killed.

Anyway, there is lots of posts like this one about Zappos and why this company is so interesting. I didn't get it until I went on a tour and saw it for myself. I'm a fan for life. I wish there were more companies like Zappos.

The fact that there isn't tells us something about us. And I don't like what I'm learning.

Back to that quote from the O'Reilly Twitter Camp home page: the goal of a good company as they get on Twitter should NOT be to get more followers. It should be to take care of customers and create an emotional attachment to the company through its people. Zappos gets this at a deep level. Boy do I wish more did.

[Instructor's name] IS NO LONGER TEACHING ANY COURSES AT THE U OF C!!!!! Remember when she told us she was a long-term prof? Well actually she was only sessional and picked up our class at the last moment because another prof wasn't able to do it .. lucky us. Well anyways I think we should all congratulate ourselves for leaving a [instructor's name]-free legacy for future [law and society] students.

It's pretty hard to see how this isn't just an expression of opinion, but the university thinks it qualifies as non-academic misconduct. The problem is, it's not at all clear how. The only part of the definition that doesn't involve injury, damage or theft is "conduct which seriously disrupts the lawful educational and related activities of other students and/or University staff." It's hard to see how a Facebook post of this nature "seriously disrupts" much of anything (until someone gets put on probation and the Streisand Effect kicks in). But there's a nice little "includes but is not limited to" that makes the definition non-exhaustive, which is likely what university officials are relying on. You'd think that other instances of misconduct would be similar (hurting people, breaking stuff, stealing, "serious disruptions"), but apparently "expressions of opinion that we don't like" can qualify...

A computer science professor interviewed said the posts "can be compared to putting up notices all over the university campus" (quoting the article, not the prof). But this is more like putting up a notice off campus (albeit in public). It may not have been nice, but it's pretty troubling that a student's right to express an opinion (free speech much?) on a third-party site is overridden without a clear policy violation.

I've had direct experience with this sort of thing. A couple years ago, friends of mine at another university were sent ominous emails and hauled into their department head's office over some comments about a professor on Facebook (jokes, e.g. "crazy drunk [instructor A] is better than boring stoned [instructor B]!"). The department heads argued that the comments were "visible to the community" (similar to the "notices on campus" argument), but they clearly didn't understand the context (wall post or message? profile or group?) or privacy settings, and they couldn't even locate the comments on the site (someone had copied and pasted them into an email). They, too, failed to specify how any policies were actually violated (or even which ones), yet they'd gone ahead and notified the professor of the students' comments and identities (while there was still grading to be done). We convinced them to back down and apologize, but it took a solid week, mid-semester, to deal with the mess.

Universities should understand and develop policies about social networking sites before they take action against students. If they can't be clear about what qualifies as misconduct, how can students expect to know? What's the difference between a Facebook group and study group? An email and a Facebook message? What difference do privacy settings make (hopefully some...)? How was this post on a Facebook group different from a review on RateMyProfessors.com? What's the difference between off-campus speech and speech on non-school websites? Before policing student speech off-site (problematic in and of itself), universities should at least ask these questions and develop policies first. It doesn't seem like many of them have. It's pretty ridiculous to just throw social networking under the ambiguous "but not limited to" umbrella.

Blaise Alleyne is an expert at the Insight Community. To get insight and analysis from Blaise Alleyne and other experts on challenges your company faces, click here.

• The COBRA subsidy amount is reimbursed by claiming a credit on the newly revised Form 941.
• Employers cannot claim the credit until their former employee actually pays his or her 35% share of the COBRA premium.
• The IRS will be changing other forms (e.g., 941X), consequently, employers should periodically check the IRS website, and
• Further information about the COBRA subsidy may be found at the Department of Labor website.

Like many employment law issues, there is already a deluge of information on the web from trustworthy and not so trustworthy sources. The IRS website has the most complete information with the DOL site running second.

In Williamson v. Delsener, NY Slip Op 01333 (1st Dept. 2009), the Appellate Division, First Department held, in a dispute over the terms of a settlement, that e-mails exhanged between counsel, which contained their printed names at the end, constitute signed writings (CPLR 2104) within the meaning of the statute of frauds (citations omitted) and entitle plaintiff to judgment (CPLR 5003-a[e]).

Therefore, if you, in a legal context, agree to something in an email which you send with your standard, printed signature at its end, courts will consider the agreement to have been reduced to writing, and it may well be viewed as part of an enforceable contract. So, add this to the myriad reasons why you must be careful before pressing your send button.

When ConnectU lawyers at Quinn Emmanuel secured a confidential $65 million settlement against Facebook (estimated based on a presumed mix of cash and Facebook shares), the folks in the marketing department at Quinn apparently were not in on the whole confidential thing. Crowing their success, Quinn Emmanuel published a brochure highlighting the confidential Facebook settlement amount in the firm's monthly business litigation newsletter.

The disclosure was apparently inadvertent. Quinn Emmanuel was fired by ConnectU, and a fee dispute between the two is headed to arbitration in New York. Predictably, no one is commenting further at this point.

The gaffe looms in the face of threatened malpractice litigation by ConnectU against Quinn Emmanuel, which presumably relates to unknown issues arising out of the litigation itself. But is there an EQ angle in the brochure leak of the settlement value?

California's legal ethics rules follow neither the Model Rules nor the ABA Code (California and Maine are the only states left like this). But what may be analogous to a Rule 1.6 issue in other states pops up in California's Rule 3-100 on keeping client confidences:

Rule 3-100. Confidential Information of a Client

(A) A member shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) without the informed consent of the client, or as provided in paragraph (B) of this rule.

6068 basically instructs to keep confidences quiet, among other things.

EQ lesson: When a confidential settlement takes place, EVERYONE on the team needs to keep on message and make sure the confidential information stays that way. That includes the marketing department!

BabyAge.com, Inc. v. Leachco, Inc., 2009 WL 82552 (M.D. Pa. Jan. 12, 2009). The Justia page.

Welcome to the cutthroat world of pregnancy pillows. Leachco manufactures pregnancy pillows and has a patent on them. BabyAge is an online retailer of baby and maternity goods and sells pregnancy pillows, including Leachco's pillows as well as the "Cozy Comfort," BabyAge's house-branded pillow.

Leachco asserted patent and trademark claims against BabyAge for the Cozy Comfort. The patent claims get tossed on summary judgment.

The trademark claim is based on the fact that BabyAge creates "featured brand" web pages for each manufacturer it carries. (See the current page, although the relevant action was before 2007). This featured brand page contained a "pregnancy pillows" section that had a 200 word narrative educating consumers about pregnancy pillows and informing them of two competitive brands--the Cozy Comfort and another brand. Each of these brand references included a hyperlink to the product page for those pillows. Leachco's brands weren't mentioned in the narrative at all.

Leachco argued that this narrative constituted a "bait and switch" because the Leachco brand lured consumers to the featured brand page, where they were then redirected to these competitive brands. The court conceptualizes this as initial interest confusion. After running through the multi-factor likelihood of consumer confusion test irresolutely, the court denies summary judgment to BabyAge on the trademark infringement claim.

The possibility of BabyAge being liable for the featured brand page is ludicrous for at least three reasons:

1) BabyAge should be protected under the First Sale doctrine for using the Leachco brand in the featured brand page. (Surprisingly, First Sale wasn't mentioned in the opinion at all). Due to the First Sale doctrine, BabyAge is allowed to advertise that it sells Leachco products, which it did. The advertisement does not have to be exclusively for Leachco products, any more than a grocery store does not need to feature only one brand in any particular ad.

2) There is no possibility of "real" consumer confusion. The 200 word narrative is entirely clear that the pillows being discussed are not from Leachco; and any consumer investigating the linked product pages will be even more clear about the distinction. Thus, the only possible confusion is any initial interest confusion (whatever that means) that occurred before reading the narrative...but since the narrative self-corrects any confusion, where is the harm at all?

3) As I discuss in my Brand Spillovers paper, this looks like cyberspace exceptionalism. Offline retailers create these types of multi-brand product adjacencies all the time. As just one example, a retailer may have a dedicated area for a single brand (such as the clothing area of a department store), but there may be placards or signage in that area that inform consumers of other options, or there may be a salesperson assigned to the area who might orally inform consumers of other options. The signage or salesperson communications not only aren't trademark infringement (initial interest confusion or otherwise), but (as evidenced by the complete lack of cases making such arguments) it would never occur to most trademark owners that they might sue the retailer for this "bait-and-switch." Yet, somehow, when the signage and product information is all digital, suddenly consumers now might be bait-and-switched. Huh? As my Brand Spillovers paper explains, this is both doctrinally wrong and potentially detrimental to consumer search costs.

The Real Deal

On Day One, Obama Sets a New Tone - NYTimes.com

Starting today, Mr. Obama said, every agency and department should know that this administration stands on the side not of those who seek to withhold information, but those who seek to make it known.

Okay. Here's the deal. I'm breaking my general, radio silence about the Obama thing. Partly, because the election (and the ungodly not-funny, not-interesting coverage thereof) basically destroyed my soul for six months. Partly because (yeah, I'm sorry I have to admit this), I had a lot of concerns (some very disturbing) that this man would never make it to getting sworn in. And I didn't want to jinx it.

But.

I have a feeling this guy may be the real deal. Seriously.

I'm still annoyed by the goddamn posters and hats and songs and freeform hagiography about a Chicago politician who's still a civil servant and a human being. But, I also have a feeling this civil servant's got the stones to see reality and remind people what it means. And to tell people in unapologetic terms what the deal is going to be to start unravelling a lot of fundamental brokenness.

I also predict that he's going to disappoint an unbelievable number of people who'd like to think he's all-powerful Zeus with a secret pack of smokes and that tidy haircut. But, y'know, maybe honest, un-shiny, and difficult-to-productize disappointment is exactly what we need right now. Instead, of eight years of empty boxes and flag stickers.

Maybe what we really need is somebody to tell us it's time to grow up, to think about how the rest of the world operates, and to accept that being a country of adults means doing a ton of insanely hard work and making sacrifices where not everybody wins.

Thing is, I'm supporting an honest, level-headed man who seems to care about doing a good job and telling people the truth. But, I'm not supporting a poster. It's posters we need a shit-ton less of right about now.

Picking five out of the sea of electronic discovery cases isn't as easy as it sounds. Sure, a few, like our Case of the Year will be no-brainers, but others aren't as clear cut. And, they're certainly open to debate. But, in my humble opinion here's THE list, counting down David Letterman style:

5) Mancia v. Mayflower Textile Servs. Co., 2008 WL 4595175 (D. Md. Oct. 15, 2008)

If there ever was an opinion written by a judge to make a larger societal point, Mancia was certainly it. Judge Paul Grimm, who'll appear on this list in another slot as well, has clearly taken the mantle from Judge Scheindlin as the leading electronic discovery jurist. He'd heretofore authored a number of significant opinions in this area, including Hobson and Thompson. Now, in Mancia he used a garden variety discovery dispute, which was typically rife with boilerplate objections and other obstreperous tactics, to highlight the Sedona Conference's Cooperation Proclamation.

The lasting takeaway from the opinion is the notion that [c]ourts repeatedly have noted the need for attorneys to work cooperatively to conduct electronic discovery, and sanctioned lawyers and parties for failing to do so. To support this notion he cites the Sedona Conference Proclamation and the little used FRCP 26(g). This opinion is noteworthy because it gives precedent to bolster the Sedona initiative and should provide a ready citation for all those counsel who aren't getting the level of cooperation they need from the opposition. It remains to be seen if other judges will follow suit, but this could be the beachhead for a more cooperative electronic discovery process in 2009 and beyond.

4) Flagg v. City of Detroit, 252 F.R.D. 346 (E.D. Mich. 2008)

Flagg highlights the growing need to reconcile the electronic discovery landscape, which typically focuses somewhat myopically on email, with the larger informational trends which are now categorized by the use of blogs, social networking sites, instant messaging, and text messaging. Flagg was one of the first to determine text messages (e.g., messages exchanged among certain officials and employees of the City of Detroit via city-issued text messaging devices) were discoverable under the standards of FRCP 26(b)(1). The holding further demonstrated the challenges of conducting electronic discovery across information systems that mix personal information with business communications. This type of information commingling will continue to escalate, causing significant long term electronic discovery challenges due to thorny privacy, privilege and policy implications.

3) Rhoads Indus., Inc. v. Bldg. Materials Corp. of Am., 2008 WL 4916026 (E.D. Pa. Nov. 14, 2008)

Rhoads is one of the first cases post Federal Rule of Evidence (FRE) 502, which recently created a national standard (versus the previous split in jurisdictions) and now states a middle ground for the determining of inadvertent disclosure during electronic discovery. The key provision is (b)(2) which provides protection only if the holder of the privilege or protection took reasonable steps to prevent disclosure. So, Rhoads took that reasonableness question head on in a scenario where the plaintiff Rhoads admittedly (yet inadvertently) produced over eight hundred privileged, electronic documents. The decision is significant because it used the five-factor test stated in Fidelity, but put an undue weighting on the final test which was: whether the overriding interests of justice would be served by relieving the party of its errors. This approach potentially threatens the development of sound case law that will be necessary to help the deployment of FRE 502 into practice because it casts too much uncertainty with its weighting of fairness (a problematically vague notion) in the analysis. It will be interesting to see if/how this approach is subsequently adopted as we enter the New Year.

2) Qualcomm Inc. v. Broadcom Corp., 2008 WL 66932 (S.D. Cal. Jan. 7, 2008)

This for many was the case of the year given it's far reaching implications for the legal community. Some have argued that this isn't an e-discovery abuse case per se, but more of an example of discovery abuses that just so happened to be centered around ESI. In either case, the fraud, resulting cover-up, sanctions, ethical issues and privilege discussions made for insightful and thought provoking reading throughout 2008. The lasting takeaway from Qualcomm appears to be the implications of not just committing discovery abuses, but the failure of having a well thought out e-discovery plan that is actively executed/monitored by outside counsel. The resulting tension between outside counsel, inside counsel and the internal IT department may continue to escalate if more cases like this make the headlines in 2009.

1) E-Discovery Case of the Year: Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 (D. Md. May 29, 2008)

Judge Grimm's hallmark opinion has had the legal community buzzing over the past several months and the reason appears pretty straight forward. In Victor Stanley Grimm builds on the holdings in Seroquel, O'Keefe and Equity Analytics, to boldly cast doubt on a practice so routine that it's literally shocked the legal community into reevaluation:

([D]etermining whether a particular search methodology, such as keywords, will or will not be effective certainly requires knowledge beyond the ken of a lay person (and a lay lawyer) . . . .

The notion that electronic discovery search is beyond the ability of most attorneys has caused tremors within the litigation support community who had a long history of blindly receiving keywords from counsel, running them and turning back over the results - often blissfully unaware of the extent to which those keyword searches actually located relevant information. Victor Stanley's analysis of the reasonableness of search protocols also has impact on the FRE 502 and therefore cements its place alongside other e-discovery must reads such as Zubulake and Morgan Stanley.

The cases above are my Top 5. What additional cases do you think were important? Please let me know by commenting on the cases you think shaped electronic discovery in 2008 and why.

Scientist John Hart created a remix of Shepard Fairey's Obama poster from 150 million carbon nanotubes, each of which measured tens of thousands of times smaller than a human hair. That sure is a lot of tiny Obamas. Snip:

Even then, the finished product is only half a millimetre in diameter and almost indistinguishable from any other garden variety micro dot - unless you happen to be looking at it through a microscope.

The magnification reveals tiny, three dimensional "carvings" of the now ubiquitous polarised image of the president-elect originally created by street artist and graphic designer Shepard Fairey.

The "Nanobamas" were created by a team of researchers led by Hart, an assistant professor in the Department of Mechanical Engineering at the University of Michigan.

A remaining provision which has drawn fire is the creation of an IP czar within the White House. The Bush administration has objected to this as an usurpation of executive authority. Nevertheless this latter provision remains in the act and raises the questions of whether the White House will exercise its veto.

(BROOKLYN, IN) - State police from the Putnamville District have a Morgan County man in custody for robbing...a police department headquarters.

A Google spokesman said Sergey and Larry "look forward to getting some real quality, high-resolution imagery into Google Earth" in three to four months presumably enabling close-ups in areas not trespassed by Google's Street View trucks. But with Google and the DOD sharing a satellite, the tinfoil-hat theories start now.

If you think the new Mashable site rocks, vote ROCKS below or Twitter @mashable design rocks

If you think the new Mashable site sucks, vote SUCKS below or Twitter @mashable design sucks

So apparently I've been dragged, kicking and screaming, back into the editorial department of this humble blog. First assignment: review the freshly redesigned Mashable.com from an objective perspective, in less than 400 words

Rocks: Out With the Old

It's better than the old one. Mashable's layout was, up until this facelift, full of fail; a veritable bastion of bloat. A 3-column design crammed a narrow content column between two pillars of ads, topped by an utterly nonsensical navigation bar. Load times were laughable: anything between 8 and 12 seconds before the content popped into view.

The new version clearly takes a stab at improving the speed issue: a relatively lightweight design that emphasizes the blog's core asset: its content.

Sucks: A Touch Too Much?

And yet the homepage, while undoubtedly cleaner than the old one, could be further refined. Why not standardize image sizes and their alignment? Why so many font sizes and styles?

Rocks: Tag Pages

These delicious tag pages, for exploring archived content on a certain topic, are carved from slabs of the purest Awesome. See for yourself: browse stories about Google, YouTube or Facebook.

Rocks: Related Posts

The related posts feature automagically serves up content from the Mashable archives, accompanied by a pretty little thumbnail image. Great for digging deeper into a topic, with a tempting visual prompt.

Sucks: Overshare?

I know every Mashable reader is on a zillion social media sites, but is it overkill to have this many sharing options? You tell me!

Rocks: Search!

Easy-to-find search box. Good search results. Finally!

Rocks: Comment Cleanup

It took a brave soul to venture into Mashable's previous, haphazardly arranged comments system: glad to see this has improved. Keep it simple, stupid! (And they did.)

Ribbon Rocks! Ribbon Sucks?

Somewhere on the ROCKS / SUCKS borderline lies the Ribbon, an expandable content selector along the top of the site. While extra javascript on a page sometimes feels like extra baggage, I'm finding I love to browse stories in this way. A somewhat hesitant Rocks from me - how about you?

OMG, it's the Conclusion

The New Mashable deftly avoids the fate of New Coke; it's a return to focus, rather than a bloated feature-fest. If anything, I long for even less: with html websites becoming one of many outlets for the content they house, there's little need for added extras.

And yet, there's also ample room for innovation: blogs breaking away completely from the template format; re-finding themselves in an era of ever-shorter attention spans and increasingly fragmented media consumption. What would you like to see here? What is the future of the blog format?

Does the New Mashable ROCK or SUCK?
( surveys)

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