In one day less than two months I have managed to write 200 blog posts.

This one, being the 200th.

I know this because after writing about 50 posts I thought to myself, What else am I going to write about?

Turns out, at this many, right now, you write about writing and how to build blog traffic.

So how did I get to this magic number in roughly two months of blogging?

It's my job. My number one duty is to write 5 posts a day.

If being senior editor of this blog were not my job I wouldn't have written 99% of these posts. The remaining 1% I would have posted on my personal blog.

If I were starting a blog today on my own I would follow this pattern of writing posts. I might find it harder to find topics to write about now but writing itself is much easier to do.

Why post so much?

Traffic, traffic, traffic. With my posts and the posts of John and Boonsri we've increased unique visitors, indexed pages, page views and keywords over 1500%. We've got a long way to go with this blog but by producing regular content that has interesting angles on technology we're growing steadily.

Where do we go from here?

We keep on cranking out the posts on the topics that keep you coming here or subscribed. You can expect to see a fresh new design in the New Year, more video, more local startup news and other fun stuff we're keeping under wraps.

Thank you guys for sticking around and helping us to grow Tech Startups! And thanks to the Network Media Holdings honchos for having us!

How to Build Blog Traffic In 60 Days is a post from: TechStartups.com

Reading glasses are for old folks and big type is for kids that don't know how to read. Well, that used to be true.

For those that believe that the web is now looking like itself and no longer doing a mimetic dance with it's first cousin, print, you should be down with this: Bigger font sizes, better kerning, wider line height and plenty of negative space make for a better user experience. Especially when reading thousands of words online everyday.

What got me going down this path was a link that someone shared today through their Google Reader shared feed to an article in Rolling Stone by Matt Taibbi. The link, as you can see, is a link to a printable version of the piece. I was rate this as great for print and poor for readability.

The post content font size is super for saving printer paper and thus trees, but it is a killer on the eyes. Reading the post at that size even in the the early paragraphs was causing me strain and fatigue. I was tired of reading the dense blocks of text without even forming half and opinion about writing. I was more concerned with the design and the inability to read it quickly because the type was packed so tight letters like sardines.

To read this article and make it not about the squished fonts and tiny words I had to throw the Readability plugin at it. Once activated it gave me plenty of white space, larger font and the ability to scan the words with ease. It performed the duty of making the web look like itself.

This got me thinking about what the best size for type readability on screens is. Turns out that after reading a couple of studies that say that is someplace between a 12pt or 14pt sans-serif typeface with a setting of 120% height in CSS. Readers also typically prefer serifed fonts for legibility but sans-serifed for actually reading blocks of text.

The major irony of course is that this blog and both of the posts that I linked to don't follow any of these guidelines for creating and optimal reading experience! Tech Startups will be heading there in the not so distant future but I fear that the those two poasts are going to be stuck in the internet dark ages.

Related articles by Zemanta

• Typographic Design Patterns and Best Practices (smashingmagazine.com)
• Talking RSS Reader Does Just What it Sounds Like [Downloads] (lifehacker.com)
• Social media has made me boring (mdzlog.alcor.net)

No Shame In Readability is a post from: TechStartups.com

The week before Thanksgiving, I attended an unusual symposium sponsored by the University of Denver Law Review entitled Cyber Civil Rights: New Challenges for Civil Rights and Civil Liberties in our Networked Age. The symposium covered standard Cyberlaw topics, but the raison d'tre was University of Maryland law professor Danielle Citron's two recent articles on online harassment of women: "Law's Expressive Value in Combating Cyber Gender Harassment" (Michigan Law Review) and "Cyber Civil Rights" (Boston University Law Review). It is unusual for a law school to celebrate another school's professor and her research, especially when the professor is fairly junior. Nevertheless, Danielle's participation brought together academics from both the Cyberlaw and civil rights communities, which provided a rare and interesting mix of folks..

First Panel

Danielle Citron started off by recapping her two papers. Online participation, such as blogging, is essential to professional standing, and employers are reviewing online profiles of prospective employees as part of their hiring considerations. However, women are being targeted for abuse online. These attacks are harming women by changing their online and offline activities, reducing their job opportunities, and causing women to change their gender representations online. Further, folks are trivializing these problems. Women are underreporting the attacks, and law enforcement only intervenes when there are offline harms. New laws can serve an expressive function to communicate that online attacks against women are socially unacceptable. The new laws can validate women's feelings that they have been harmed and encourage law enforcement to pursue more cases.

Commenting on the papers, Robert Kaczorowski of Fordham Law (and Danielle's stepdad) made an extended analogy between the Ku Klux Klan and cybermobs.

Wendy Seltzer asked if we could deemphasize the effect of words rather than prohibit them. Danielle responded that we don't know how seriously to take any particular threat.

An audience member asked if is there a difference between mobs and individual actors who are just taking advantage of being anonymous. Danielle answered that groups can become more extreme online. I think this point deserves more exploration: a series of uncoordinated individual decisions to pile on to an attack can look like a coordinated attack to the victim. This is part of why I thought the KKK references were puzzlingKKK activities are clearly coordinated, while online attacks against women can succeed without any coordination or ongoing connection between the attackers.

Paul Ohm argued that that legal solutions are better for cyber civil rights problems than technological solutions. Paul discussed what he labeled Felten's Third Law. (He doesn't know of two earlier laws named for Ed Felten; he just assumes they exist given Ed's impressive and influential oeuvre). As articulated by Paul, Felten's Third Law is that in Cyberlaw conflicts, lawyers love technical solutions and technologists love legal solutions. In other words, we love the solution we don't know because we assume it has to be better than the one we do. As both a law professor and technologist, Paul picks law over technology for these problems.

Paul categorically rejects any technical solution that would create a fully identified Internet. For example, we should not mandate server log retention because we know the logs will be co-opted to regulate other forms of unwanted content, not just online harassment.

Wendy Seltzer discussed the unintended consequences of legal intervention. For example, mandatory Internet filtering in school libraries hasn't stopped kids from bypassing the filters, but it has facilitated a marketplace for improving filtering technologies that has benefited repressive regimes. Another example: anti-circumvention technology fails to restrict copying but has reduced innovation around DRMed content. Wendy also noted how norms can help curb abuses. For example, while there are online cesspools, she praised Wikipedia's evolving guidelines for living people's biographies.

In response, Danielle admitted that her solutions need to be more surgical. She said she might consider moving from a notice-and-takedown model to a notice-and-preserve model for intermediaries.

Second Panel

This panel was composed of three women academics from the civil rights community, so it was a noticeable shift from the typical Cyberlaw academic discussion.

Mary Anne Franks is a University of Chicago Bigelow Fellow and soon-to-be full-time law professor. She expresses our collective disappointment that cyberspace isn't a utopia that allows people to escape offline discrimination and harassment. She laments that women can lose control of their identities online, such as when someone creates a fake online profile in their names.

She then addressed how cyberspace is unique/special/different with respect to gender harassment. Many commentators try to duck cyberspace exceptionalism, so it was refreshing to see her tackle the issue squarely. Existing offline discrimination/harassment laws assume interactions between repeat players at work and school; online harassment can be divorced totally from any existing social networks. However, because the online activities still harm targeted individuals at work and school, we should treat the harms the same. Offline, there are switching costs to changing jobs or school; online, search engines' consolidation of results for search on a person's name creates a different type of switching cost. In terms of supervisory power, she thinks web operators have analogous control to employers or school administrators. Thus, when web operators receive notice of online harassment, they should have a duty to do something about it. Offline, employers can develop a variety of responses and policies to combat workplace harassment. Web operators should have similar latitude; for example, they can delete offending posts or suspend/ban accounts.

Helen Norton, a University of Colorado law professor, did not share Danielle's optimism (expressed in her first article) that existing discrimination laws can curb online harassment. Instead, Helen thinks a new civil rights statute is needed, but she might limit its remedies to exclude money damages. Helen is pessimistic that there will be regulation any time soon, noting that it can take years to enact civil rights legislation. Helen would also like to see more precise definitions of the exact harms that women are experiencing only online.

Nancy Ehrenreich, a Denver University law professor, began her talk by saying that we should not overstate the Internet's benefits. She then clarified that we should not assume that disadvantaged folks can overcome barriers online. For example, we impose cultural categories on people in every interaction, so even if people try to mask their identity online, they can't really escape. She wondered why we aren't talking about an anti-discrimination law for the web. Her concern is that discrimination denies individuals access to the Internet.

In Q&A, Paul Ohm observed that civil rights scholars often invoke free speech as the countervailing concern to their desired regulations, but Cyberlaw scholars are often more interested in other generative effects of the Internet, such as new business models, new labor models and new modes of production.

Panel 3

James Grimmelmann (see his slides) started with the Skanks in NYC case. In that case, the defendant criticized someone else in her social network on a blog, calling the plaintiff (among other unflattering things) a skank. The plaintiff sued to obtain the blogger's identity. After a successful unmasking, the plaintiff dropped the lawsuit, having successfully publicly shamed the blogger.

James hypothesized that this unmasking and shaming was an appropriate remedythe blogger got shamed (like an eye for an eye), and unmasking is a better outcome than other legal remedies like damage suits. James then posited a thought exercise that provided plaintiffs with an expedited unmasking procedure if they drop any damages claim. This would have a number of benefits. Unmasking curbs online harassment is especially effective at busting online mobs. Also, an unmasking remedy avoids messy debates over the First Amendment's scope, and it may be more desirable than trying to hold online providers liable.

Having advanced his own strawman, James then cut it down. In some cases, defamation remedies may be more desirable, and plaintiffs may not know that until they learn the putative wrongdoer's identity. In other cases, plaintiffs who just want unmasking would appreciate a lower legal hurdle. Also, we provide legal protection for anonymity for good reasons.

James' lessons from the thought exercise: we should consider ways to decouple an unmasking remedy from litigation. At the same time, we need to protect defendants from pretextual unmasking; in some cases, retaliation is a big concern, and we should incorporate this concern into the unmasking decision.

From Chris Wolf's talk (see his full remarks), the most interesting thing I learned is that 18 states have laws banning wearing masks in public, enacted to suppress KKK activities. This was the second speaker's KKK reference of the day, and it made me wonder if we were experiencing some variation of Godwin's Law.

Panel 4

Viva Moffat observed that secondary liability issues generate the most heat in online harassment discussions. She expressed concern that imposing legal duties on third parties may not help law's norm-shaping effect, and it's not appropriate to impose liability just because the provider has deeper pockets or the direct actor can't be found. She also suggested that imposing liability on third parties creates a greater risk of collateral damage than direct liability. [Note: I would like to know more about this last assertion. I suspect we cannot make a utilitarian calculation a priori]. As a result, she favors focusing more efforts on sharpening direct liability.

Ed Felten talked about identifying and anonymizing online activity. He explained the usual sequence of events in chasing bad online content:

log file => IP address => identity => justice

But the IP address => identity step breaks down when users use an anonymizing proxy or the user's network uses network address translation (used by home wireless routers or in coffee shops) and all connected devices' requests share a single IP address. He said that a majority of Internet connections use NAT.

Because IP address tracebacks can dead-end at the intermediary, an IP address can reveal too little information. However, even when users aren't investigatory targets, IP addresses can reveal too much information, such as geolocation. This paradoxIP addresses simultaneously reveal both too much and too little informationreflects that the IP address system was built for routing, not identification. So could we design a better authenticating technology?

He then conducted a semi-realistic thought experiment of a new technological tag that could be used instead of IP addresses. This tag could have the following attributes:

* can be placed by any intermediary
* conveys no information about the sender unless unwrapped by the intermediary (presumably for good legal cause)
* unwrapping the tag yields the best identity information the intermediary has
* the tag's use is voluntary as a technical matter
* the tag is removable as a technical matter

I then batted clean-up. A summary of my remarks:

Today's conversation has revisited long-standing Cyberlaw issues, such as:

* anonymity v. accountability, and who should be responsible for online content and actions
* cyberspace as a physical place. See, e.g., Noah v. AOL (an online discrimination case), National Federation of the Blind v. Target (also an online discrimination case) and Estavillo v. Sony
* cyberspace exceptionalism and cyberspace utopianism (on the latter point, see my article on search engine utopianism)
* when is the optimal time to regulate rapidly evolving technology? Early, when the technology is still in its infancy, or later, when market forces and new technological evolutions may have cured the early problems?

Danielle's articles convinced me that women are experiencing serious harms online that menincluding mecould easily trivialize. Danielle's articles also convinced me that online harassment has strong parallels to the 1970s legal evolution of workplace harassment doctrines, where a big part of the battle was to get people to take the harms seriously.

While I find a lot of descriptive value in Danielle's work, the normative implications are not as clear. As usual with attempts to regulate rapidly evolving technology, there are many important but overwhelmingly hard definitional challenges, such as who is an intermediary, what are online mobs and what constitutes online harassment. For example, I do not think the Skanks in NYC incident is an online harassment case or an attack, but James Grimmelmann's talk assumed those characterizations.

While we can debate what should be the right level of regulatory intervention, we should not overlook that Congress already enacted a law squarely governing intermediary liability for online harassment: 47 USC 230. The angst that prompted this conferencebad behavior onlineis the logical consequences of 230's broad immunity. The statute enables websites to adopt policies that they will not police user content or retain server logs of user activity. These choices aren't a surprise or a per se abuse of the immunity; instead, they are the unavoidable implications of Congress' action.

We might question Congress' wisdom in adopting 230, but we should not diminish its potential importance to the Internet as we know it. [In Q&A, Chris Wolf asked about the comparative experience in countries that don't have such broad immunity. In those countries, we know that websites take down user content much more freely, and I believe that the most interesting UGC innovations are all taking place here in the US, not countries with more restrictive UGC liability.] I can, at most, only prove correlation and not causation, but I believe 230 is one of the main causal reasons why the Internet has succeeded so well.

When I speak around the country about 230, I often encounter folks who generally accept 230's immunity scope but want just one new exception, i.e., their pet topic. If everyone got their just one exception, the law would be eviscerated. (I said it would be Swiss-cheesed to death; maybe I should have said it would be overcome by a thousand duck bites). I'm not rejecting new exceptions categorically (they should be each considered on their own merits), but in aggregate 230's immunization benefits are actually quite precarious. I believe 230 works precisely because of its strength and simplicity, so adding more exceptions could significantly reduce its efficacy.

I concluded my remarks by observing that online harassment is a subspecies of bullying and incivil behavior in our society. While we can and should work to curb online harassment, I am more interested in addressing bullying and incivility in all its forms, wherever it takes place.

In this regard, I have been impressed by how my son's school is proactively addressing bullying. See more about this effort, called Project Cornerstone. The school is teaching kids not to bully or to tolerate being bullied, and the project gives bullied kids tools to go on the offensive against bullies. There's no guarantee that anti-bullying programs will work in the short or long run, but I remain hopeful that online harassment today partially reflects that many current Internet users never got any anti-bullying education. Perhaps, then, online harassment issues will naturally abate (without any regulatory intervention) as new generation of Internet users, better educated about bullying, come onto the Internet.

Following my remarks, we had more Q&A.

Paul Ohm Q: Some cyber folks argue against secondary liability because they believe that a victim can pursue a direct action, but Ed's talk suggests that user anonymity will continue to be possible.

Mary Anne Franks: civil rights isn't about individual claims because victims have to bear too high a burden to pursue claims. Instead, civil rights are about changing large-scale social norms. The goal is to achieve anti-discrimination by any means necessary. Thus, civil rights scholars have already discussed and concluded that it's appropriate to impose liability on intermediaries like employers and schools.

Danielle: intermediaries are the lowest cost avoiders.

James Grimmelmann: no, the harassers are the lowest cost avoiders. Civil rights folks would get more support from the Cyberlaw crowd if they focused their regulatory desires towards intermediaries who are in active concert with the bad actors.

Danielle's Wrap-Up

We all agree that:

* education can make a big difference
* online communities need to self-police
* there are numerous limits to using the law as a solution, including that lawsuits don't make sense and 230's immunity.

We don't agree on what to do next. There are First Amendment limits, and technology doesn't offer any panaceas.

The question of what effect an employee's disloyalty has on authorization to access an employer's computer has arisen in numerous cases in which employers have added civil claims under the CFAA in actions brought against employees alleged to have misappropriated of trade secrets. A typical scenario in which such a claim would be made is where, before departing for a new job, the employee is alleged to have copied or transmitted an employer's computer files for the benefit of a new employer.

Often, what is at stake in such cases is the employer's ability to maintain an action in federal court. A dispute over misappropriation of trade secrets is likely to involve only state law issues, and unless there is diversity of the parties, there is no basis for jurisdiction in a federal court. But, of course, federal courts have jurisdiction over a CFAA claim, and the trade secret misappropriation claims are then swept into federal court along with the CFAA claim as pendent state law claims.

The Seventh Circuit opinion in International Airport Centers v. Citrin is the ruling that is cited by employers seeking to press CFAA claims in such cases. In that case the circuit, in an opinion written by Judge Posner, ruled that under common law agency principles, an employee who breaches the duty of loyalty to an employer thereby becomes unauthorized to access the employer's computer, at least for the purpose of furthering an act of disloyalty to the employer. In LVRC Holdings, LLC v Brekka, the Ninth Circuit ruled to the contrary, finding that under the plain meaning of the language of the CFAA, acts of disloyalty on the part of an employee do not render the employee's access to the employer's computer unauthorized within the meaning of the statute.

In LVRC, the Ninth Circuit panel concluded that under the ordinary, contemporary, common meaning of the statutory terms, an employer gives an employee 'authorization' to access a computer when the employer gives the employee permission to use it. The court found that there is no statutory language to support the contention that authorization terminates when an employee determines to act contrary to the interest of an employer. The court looked to the term "exceeds authorized access," and concluded that the definition of that term made it clear that Congress had no intent to include in the statute any implicit, rather than explicit, limitation on the term authorization. It is an employer's act of allowing or terminating an employer's authorization to access a computer that determines whether the employee's access is authorized within the meaning of the statute, not the employee's disloyal act. The court reasoned:

Section 1030(e)(6) provides: the term exceeds authorized access' means to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter. 18 U.S.C. 1030(e)(6). As this definition makes clear, an individual who is authorized to use a computer for certain purposes but goes beyond those limitations is considered by the CFAA as someone who has exceed[ed] authorized access. On the other hand, a person who uses a computer without authorization has no rights, limited or otherwise, to access the computer in question. In other words, for purposes of the CFAA, when an employer authorizes an employee to use a company computer subject to certain limitations, the employee remains authorized to use the computer even if the employee violates those limitations. It is the employer's decision to allow or to terminate an employee's authorization to access a computer that determines whether the employee is with or without authorization.

The Ninth Circuit rejected the Seventh Circuit's reasoning in International Airport Centers, LLC v. Citrin, concluding that relying on whether an employee's mental state changed from loyal employee to disloyal competitor to determine whether the statute had been violated would be problematic in the criminal law context. The statute should be interpreted consistently in civil and criminal contexts, the court reasoned. Relying on the employee's mental state with respect to disloyalty to determine whether the statute had been violated would run afoul of the proscription against interpreting criminal statutes in surprising and novel ways that impose unexpected burdens on defendants.

In this respect, the ruling echoes (but does not cite) the recent district court opinion in United States v. Drew, No. CR 08-0582-GW (C.D. Cal. Aug. 28, 2009) (the MySpace "cyberbullying" criminal prosecution). There, the court dismissed a misdemeanor charge of violating the CFAA that was predicated on a user's alleged violation of the MySpace Terms of Service, finding that it would run afoul of the void for vagueness doctrine because individuals of 'common intelligence' arguably would not be on notice that a breach of the terms of a service contract could become a crime under the CFAA.

And conversely, the Ninth Circuit ruling appears to contradict the recent opinion in United States v. Nosal, 2009 U.S. Dist. LEXIS 31423 (N.D. Cal. Apr. 13, 2009), in which the district court declined to dismiss an indictment charging a violation of 18 U.S.C. 1030(a)(4). The indictment alleged that the statute was violated when a former employee accessed an employer''s computer network to copy proprietary information for use in a competitive enterprise. The court found that the statutory element of intent to defraud in subsection 1030(a)(4) could be found in the employee''s knowing access of electronic records for uses outside their intended purpose. The court in Nosal also rejected the defendant''s argument that because subsection 1030(a)(4) had never been addressed in the criminal context the indictment should be dismissed under the rule of lenity. Citing International Airport Centers, LLC v. Citrin and a number of opinions following it, the court found that there was ample authority in civil cases construing this section to conclude that the CFAA was violated by the 'access to the employer's confidential and proprietary information to advance his own competitive enterprise.

No doubt more will be heard on this issue in the Ninth Circuit, and other courts as well. And eventually, perhaps, the U.S. Supreme Court.

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.

Gibson v. Craigslist, 2009 WL 1704355 (SDNY June 15, 2009). The CMLP page. The Justia page.

In my lengthy deconstruction of the Barnes v. Yahoo case, I criticized the Ninth Circuit for concluding that 47 USC 230 was an affirmative defense (and thus could not support a 12b6 motion to dismiss) without proper briefing or analysis. First, this was sloppy work by the court. Second, the elimination of a 12b6 possibility for the defendants creates a real risk that defendants will be exposed to expensive and time-consuming discovery to eliminate plainly meritless cases. Yahoo and a group of amici have asked the Ninth Circuit to reconsider this aspect of the ruling, and I hope they do so.

Meanwhile, today's case does a competent job reviewing whether or not 47 USC 230 can support a 12b6 motion to dismiss. Unlike the Ninth Circuit, it actually cites and discusses the numerous cases in the area although, remarkably, it does not cite or address the Barnes v. Yahoo case! The court reaches the sensible positions that (1) 47 USC 230 does support a 12b6 motion, (2) as a result, the plaintiff was not entitled to discovery, and (3) the case should be dismissed. For more discussion on why 47 USC 230 supports a 12b6, see Paul Levy's excellent brief.

Substantively, today's lawsuit is brought by a shooting victim who claims that the shooter bought the gun via Craigslist. The complaint argues that Craigslist had a duty to prevent the sale of guns to future criminals and therefore Craigslist breached the duty. This argument is similar to the Doe v. MySpace cases (1, 2) in which the plaintiffs argued that MySpace had a duty to police its website "premises" to prevent online communications that lead to offline crimes. The plaintiff's argument here fares no better here than it did in the MySpace cases. 47 USC 230 precludes the imposition of liability for any breach of duty by failing to police its users' communications (putting aside the also-relevant inquiry of whether Craigslist could have any duty that would have prevented this offline tragedy). The plaintiff tries to get around 230 by arguing it's just trying to hold Craigslist accountable as a "business" rather than as a speaker or publisher of third party content, but the court rejects this goofy argument as "unpersuasive."

More on the case from Eugene Volokh.

Boring v. Google, Inc., 2:08-cv-00694-ARH (W.D. Pa. Feb. 17, 2009)

You may recall the Boring case from last Spring. A Pennsylvania couple sued because Google's camera car drove up their private driveway and the resulting pictures were posted to Google's Street View. I thought the whole lawsuit was such a silly publicity stunt that I didn't think it was blog-worthy at the time. Apparently I'm not the only person who wasn't impressed with the suit, because the court didn't give the plaintiffs any benefit of the doubt and dismissed the lawsuit handily (without leave to amend).

Some highlights from the discussion:

Intrusion Into Seclusion. The court says that the plaintiffs did not allege facts supporting that the intrusion was substantial and highly offensive. To reinforce the point that perhaps the plaintiffs didn't experience much harm, the court points out that the plaintiffs didn't take advantage of Google's opt out procedure, plus they drew public attention to themselves by suing and by not redacting or suppressing their contact info in the court filings. I was a little troubled by the latter point, which seemed circular to me--plaintiffs bringing intrusion into seclusion lawsuits unavoidably thrust themselves into the public eye, whether they want to do so or not. This is especially true for anyone suing Google. As a result, it's not fair to hold that consequence against plaintiffs. (As an example of the unwanted publicity faced by privacy rights plaintiffs, consider Robert Steinbuch's experience as a plaintiff against Jessica Cutler). The court also skips over the legal nuances regarding why Google should get a free legal pass when it offers an opt out.

Public Disclosure of Private Facts. As with the intrusion into seclusion claim, the court says that the plaintiffs have not shown the disclosures were highly offensive to reasonable people, as evidenced by the fact that other people haven't opted out of Google's Street View. (An interesting argument on a 12b6).

Common Law Negligence. The court says Google didn't have a duty to the Borings, and it isn't willing to manufacture one.

Trespass. The court says that the plaintiffs' emotional damages were not proximately caused by the trespass.

Unjust Enrichment. The court (correctly, IMO) says that this is not an independent cause of action but is just a quasi-contract remedy.

Injunctive Relief. The court says that the plaintiffs failed to plead "a plausible claim for entitlement to injunctive relief." Which, I think, is one way of saying "not interested."

A clean sweep for Google, and the end (absent an appeal) of a silly lawsuit.

Bridal Expo produces the Bridal Extravaganza Show in Houston, one of the largest bridal shows in the US. Hundreds of exhibitors and thousands of prospective brides attend; the show has been in business for 25 years and keeps databases of attendees and potential clients. Defendant Wedding Showcase scheduled the Houston Wedding Showcase for Feb. 2009, a few weeks after the Bridal Extravaganza at the same location. The individual defendants van Florestein and Moore, were key to creating the Wedding Showcase and are former Bridal Expo employeesshow manager and assistant. They left Bridal Expo in July 2008, but not before Moore downloaded Bridal Expo's databases and other information.

Defendants used Bridal Expo's database to mail ads to vendors for Wedding Showcase's November 2008 seminar. They used Google to advertise the Wedding Showcase as Houston's #1 Bridal Show, and mailed a brochure to vendors using quotations attributed to our vendors and our brides that actually came from other bridal shows on the East Coast, produced by another company.

In an earlier state court suit, Bridal Expo brought claims for trade secret misappropriation, unfair competition, and related torts. The judge denied a TRO and after a hearing also denied a temporary injunction. Bridal Expo nonsuited the state case and sued in federal court, using the same claims along with a Lanham Act false advertising claim and a Computer Fraud and Abuse Act claim.

On the state claims, the district court refused to disturb the state court's ruling on the temporary injunction. All the elements of collateral estoppel were present, though this of course only affected the availability of temporary relief, not a final adjudication on the merits. Given that only a month had passed since the state court denial, and that plaintiffs had held a successful bridal show in the interim (thus suggesting lack of harm), the court found no reason to revisit the state court's decision.

On the false advertising claim, plaintiffs argued that Houston's #1 Bridal Show was literally false, since Bridal Extravaganza is, in fact, the largest bridal show in Houston by any number of measures, and that the statement wasn't puffery because it was unambiguous and needed no additional context to give it meaning. Also, they argued that the brochures were literally false because defendants have yet to produce a bridal show in Houston.

Defendants called the Google ads puffery, and argued that the use of our in the brochures referred to the principals of Wedding Showcase, who have produced many shows. Moreover, the brochures mentioned several times that the Houston Wedding Showcase is a new show.

The court held, based on Pizza Hut, that the Google ads were too ambiguous to be actionable, and were the kind of bald assertion or general statement of superiority on which no reasonable consumer would rely. See also In re Century 21-RE/MAX Real Estate Advertising Claims Litigation, 882 F .Supp. 915, 923 (C.D.Cal.1994) (holding that # 1 was too vague to be actionable and declared ... # 1 in the United States and the World" was puffery, because it was opinion and made no reference to what was #1). Anyway, defendants stopped running the ad.

As for the brochure, plaintiffs argued that the our statements were literally false, and also that the brochure made literally false claims that van Florestein and another defenant had a combined 25 years of experience. Moreover, they argued that, by scheduling their show shortly after Bridal Extravaganza at the same location, defendants were trying to confuse customers into thinking their show was the Bridal Extravaganza.

On this record, the court found no literal falsity. Our could readily, in context, refer to the show's owners, one of whom ran the shows on the East Coast from which the our statements came. The brochure explained that the Houston Wedding Showcase would be a new show with a long history. Likewise, more than 25 years of combined experience could refer to the sum of the two principals' individual experience, not 25 years each. The court concluded that it was unlikely that a sophisticated vendor audience, familiar with the Houston wedding market, would be misled into thinking that the quoted brides and vendors were from Houston.

The evidence of confusion between the shows was that one of plaintiff's employees heard from one vendor at the Bridal Extravaganza that he was confused about who was running the Wedding Showcase, but there was no evidence of any connection to the brochure, and this was insufficient to claim confusion overall, though this might be an issue for a jury.

The CFAA claim was based on 18 U.S.C. 1030(a)(4), creating liability for a person who knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value . For a civil claim, there are extra requirements; here, the key was loss to 1 or more persons during any 1-year period ... aggregating at least $5,000 in value. Loss includes costs of responding to an offense and conducting a damage assessment. Here, the claimed loss was the confidential trade secrets.

Defendants argued that their access wasn't without authorization and didn't exceed their authorization. Van Florestein and Moore accessed their work computers and took files to which they were allowed access as employees. They argued that there's a difference between access to computers and use or disclosure of information obtained through that access.

There's a split over the meaning of authorization. Some courts say that using files to harm the employer violates the CFAA even if the employee technically has authorization to access the files in the scope of her duties. Contrary to that, other courts have noted that, when Congress wanted to prohibit things like communication and delivery, it listed them. If Congress wanted to reach all wrongdoers who access information they then use to the detriment of their employers, it could have omitted the statute's words of limitation altogether. Despite the conclusions of other courts, the district court determined that, given those statutory construction arguments and the rule of lenity (since the CFAA is also a criminal statute), authorization is not exceeded just because the employee breaches her duty of loyalty to an employer.

Here, the files were copied/downloaded on the defendants' last day of employment. They hadn't signed a confidentiality agreement or any other agreement restricting access to the files they'd been working on at Bridal Expo. It was within the nature of their relationship to use their computers and access the files at issue. Indeed, a key Bridal Expo employee saw them using the computer on their final day and didn't complain, even though it was after they'd turned in their keys.

Thus, the court found plaintiffs were unlikely to succeed on the merits. Moreover, even had there been a likelihood of success, a preliminary injunction would have been unwarranted, based on the Fifth Circuit's hesitance to grant injunctive relief against the use of information obtained through a past violation of the CFAA, where there was no potential for ongoing access.

The court stated, somewhat confusingly, that it would be willing to revisit the issue if defendants were continuing to use the vendor email list to advertiseeven if there's no likelihood of success on the merits? And then the court said that even if it had found likely success on the merits, it wouldn't have entered an injunction, because plaintiffs hadn't shown irreparable harmthat successful show they'd conducted since defendants entered the marketand defendants would suffer great harm if they couldn't produce their show: they'd have to cancel contracts, unwind arrangements on short notice, and pay cancellation fees. About that email list: It's unusual in a written opinion for a court to signal so overtly that, though it thinks there's no legal basis for some behavior, it nonetheless expects a party to engage in that behavior, but that seems to be what happened here.

Like most netbooks with Intel processors, most Eee PC models rely on integrated graphics which are good enough for watching videos or rendering some basic games, but kind of stink if you want to play a Crysis or Call of Duty. Asus does package an NVIDIA 9300M graphics card with the Asus N10 laptop, but the company refused to call that laptop a netbook (even though it has the same screen and keyboard size as a netbook, as well as the same 1.6GHz Intel Atom CPU used in most of the company's netbooks).

Now it looks like Asus could be preparing an Eee PC netbook with a dedicated graphics card. If the rumored netbook is anything like the N10, Asus will offer users the ability to switch between dedicated and integrated graphics. You can use the lower power integrated graphics processor when battery life matters more than GPU performance. And when you want to blow up some aliens, you flip a switch and reboot your system.

No word on pricing, availability, or if this is actually going to happen or if it was just some guy at Asus mouthing off. But if it does come to pass, I'm going to go out on a limb and assume that Asus will charge more than $399 for an Eee PC with a fancy graphics card.

via Eee PC News

Post from: Liliputing

The Tribune Editorial Board released its list of endorsements in the upcoming Illinois primaries on February 5. Among the list are 3rd District Congressman Dan Lipinski (striking a blow to challenger and progressive blog champion Mark Pera) and tenacious ice cream magnate Jim Oberweis -- running for Congress in the 14th District -- who is determined to get himself elected to some office, somewhere, some time (we hear Sugar Grove is looking for a new mayor, perhaps he should start there). They also endorse Senator Dick Durbin's challenger, Steve Sauerberg, who has about as much chance of unseating Durbin as Spanky the Clown.

But the big news is obviously their endorsements for Democratic and GOP presidential nominees. Not surprisingly, our own Barack Obama gets the nod on the Dem side, as the Trib champions how the country has moved beyond the issue of race (er, while they lead the endorsement with it) and that while they agree that their endorsement is a "paradox", they feel Obama is best suited amongst the Democratic candidates to "help this nation move forward" and that Hillary Clinton "unifies only her foes."

John McCain picks up the Republican endorsement, in which the Trib makes a not so subtle dig at Rudy Giuliani:

Many Americans yearn for the holiday-from-history that was the 1990s. The Cold War had ended; the cataclysmic updraft of concrete dust and human DNA hadn't risen from Lower Manhattan.

But there will be no going back. The planet's lone superpower won't again have the privilege of ignoring -- of appeasing with strong words but soft pursuit -- the sworn enemies of this nation and its friends.

One Republican candidate for president dedicated himself to American honor, American duty, long before Sept. 11, 2001. The world of 2008 is the dangerous world John McCain unknowingly spent a military and political career preparing to confront.

McCain, who as of a few months ago was practically written off, has surged forward as Giuliani's strategy of ignoring all of the primaries until Florida has erased his previous dominance in the national polls. [Trib]

Photos from the Tribune website

Eastern and Western Districts of Arkansas
Local Rule 26.1 Outline for Fed. R. Civ. P. 26(f) Report

District of Alaska
Local Form 26(f): Scheduling and Planning Conference Report (see item 4(B))
Local Rule 16.1 Pre-Trial Procedures (requiring use of Local Form 26(f) or one substantially similar)

District of Arizona
Order Setting Rule 16 Case Management Conference (Magistrate Judge Michelle H. Burns)
Order Setting Rule 16 Case Management Conference (District Judge David G. Campbell)
Order Setting Rule 16 Case Management Conference (Magistrate Judge David K. Duncan)
Order Setting Rule 16 Case Management Conference (District Judge Mary H. Murguia)

Northern District of California
Standing Order For All Judges Of The Northern District Of California: Contents Of Joint Case Management Statement (see item 6)
Local Rule 16-9 Case Management Statement and Proposed Order (requiring parties' Joint Case Management Statement to include all topics listed in Standing Order)

District of Colorado
Appendix F: Scheduling Order
Instructions for Preparation of Scheduling Order

District of Connecticut
Local Rules 16(b), 26, 37 and Form 26(F)

District of Delaware
Default Standards for Discovery of Electronic Documents

Middle District of Florida
Civil Discovery Practice Handbook (see Part VII Technology)

Southern District of Florida
Rule 16.1 Pretrial Procedure in Civil Actions
Rule 26.1 Discovery and Discovery Material (Civil)
Appendix A: Discovery Practices Handbook (see Part III, in particular)

Southern District of Georgia
Rule 26(f) Report

Central District of Illinois
Magistrate Judge Byron G. Cudmore's Rule 16 Scheduling Order
Magistrate Judge David G. Bernthal's Suggested Form for Proposed Discovery Plan (Urbana Division)

Northern District of Indiana
Report of Parties' Planning Meeting

Southern District of Indiana
Uniform Case Management Plan (see Part III(K))
Rule 16.1 Pretrial Procedures (requiring use of Uniform Case Management Plan)

Northern and Southern Districts of Iowa
Scheduling Order and Discovery Plan
Instructions and Worksheet for Preparation of Scheduling Order and Discovery Plan and Order Requiring Submission of Same
Local Rule 16.1 Scheduling Order and Discovery Plan (requiring use of form)
Local Rule 26.1 Pretrial Discovery and Disclosures (requirement to submit discovery plan satisfied by submission of form Scheduling Order and Discovery Plan)

District of Kansas
Guidelines for Discovery of Electronically Stored Information
Initial Order Regarding Planning and Scheduling

District of Maryland
Suggested Protocol for Discovery of Electronically Stored Information

Eastern District of Missouri
Local Rule 3.01. Federal Rule of Civil Procedure 26

District of New Hampshire
Local Rule 26.1 Discovery Plan
Civil Form 2: Sample Discovery Plan

District of New Jersey
Local Rule 26.1 Discovery (see subpart (d))

Southern District of New York
Individual Practices of District Judge Harold Baer, Jr. (see Item 3)
Proposed Pretrial Scheduling Order (District Judge Harold Baer, Jr.)
District Judge Colleen McMahon's Rules Governing Electronic Discovery
Civil Case Management Plan (District Judge Colleen McMahon)

Northern District of Ohio
Local Rules, Appendix K: Default Standards for Discovery of Electronically Stored Information (E-Discovery)
Rule 16.3 Track Assignment and Case Management Conference
Case Management Conference Scheduling Order (District Judge Dan Aaron Polster)
Case Management Conference Notice (District Judge Jack Zouhary)
Case Management Conference Order (District Judge Jack Zouhary)

Southern District of Ohio
Rule 26(f) Report of Parties (Western Division at Dayton)
Joint Discovery Plan (Western Division) (District Judge Susan J. Dlott)
Rule 26(f) Report of the Parties (Eastern Division)

Eastern District of Pennsylvania
Report of Rule 26(f) Meeting
Pretrial Scheduling/Status Conference Report (Senior District Judge Norma L. Shapiro)
Standard Management Track; Order (Senior District Judge Norma L. Shapiro)
Order Governing Electronic Discovery (District Judge Timothy J. Savage)
District Judge Timothy J. Savage's Scheduling and Motion Policies and Procedures

Middle District of Pennsylvania
Local Rule 26.1 Duty to Investigate and Disclose

Western District of Pennsylvania
Local Rule 16.1.1 Scheduling and Pretrial Conferences - Generally (see item (B), requiring use of Appendix B form)
Appendix B: Fed. R. Civ. P. 26(f) Report of the Parties (see item 11)

Eastern District of Tennessee
Form Scheduling Order (Knoxville) (Senior District Judge Leon Jordan) (see Item 4(d))
Form Scheduling Order (Knoxville) (District Judge Thomas A. Varlan) (see Item 4(d))
Form Scheduling Order (Chattanooga) (Magistrate Judge Susan K. Lee) (see Item 5(a))

Middle District of Tennessee
Administrative Order No. 74: Default Standard for Discovery of Electronically Stored Information (E-Discovery)
Sample Initial Case Management Order (District Judge Aleta A. Trauger) (see Item L)

Western District of Tennessee
Form Scheduling Order (Western Division) (Magistrate Judge Diane K. Vescovo)

Eastern District of Texas
Notice of Scheduling Conference, Proposed Discovery Order, and Proposed Dates for Docket Control Order (Magistrate Judge John D. Love) (see item 2(A))

Northern District of Texas
Miscellaneous Order No. 62 (Dallas Division, Patent Cases) (see item 2.1(a)(2))

Southern District of Texas
Local Rules of Practice for Patent Cases (Corpus Christi Division) (see Rule 2-1(a)(2))
Court Procedures of District Judge Nancy F. Atlas (see Item 6(C)(5) and Joint Discovery/Case Management Plan)
Court Procedures of District Judge Lee H. Rosenthal (see Joint Discovery/Case Management Plan)

District of Utah
Attorneys' Planning Meeting Report

District of Vermont
Local Rule 26.1 Discovery
Local Form Rule 26.1(b): Stipulated Discovery Schedule/Order

Southern District of West Virginia
Report of Parties' Planning Meeting
Local Rule 16.1 Scheduling Conferences (requiring use of court's form)

District of Wyoming
Local Rule 26.1 Discovery and Appendix D: Rule 26 Conference Checklist (see subpart (e) of local rule)

For more information on the local rules of United States District Courts, click here to see a page with links to all the District Courts' web pages.

To be efficient and effective as a web worker you'll need to come to grips with a few important tools and change some rusted-on behaviours. In part 3 of the Becoming a Freelance Web Worker series I'll describe exactly what you need to make it through your first working day (and every day after that) as a wired freelancer.

Equipment

Computer if you want to go mobile a laptop is essential, but if you're content working from home any half-decent computer will do. Some web workers swear by Macs, others swear by Linux, others are PC devotees. My advice is to go for the operating system you find easiest to use or the one you can afford. The Web 2.0 hipsters might have their preference, but they're not doing your work for you, are they?

Fast internet connection while it's possible to be a dial-up web worker (I'm doing it at the moment, but only out of financial necessity!), it's not very cool or very productive. If a fast connection allows you to do a day's extra work each year, it pays for itself.

USB thumb drive I'd suggest getting a USB thumb drive big enough to store your current project on it. If you're a freelance writer you'll be storing mainly documents and text files, so you can get something really cheap. If you're a web developer or designer you'll need a more heavy-duty option but you're also probably a technophile, so I don't need to tell you that.

Optional: Scanner sometimes nothing beats a pen and paper for getting an idea across, sketching and brainstorming. A scanner will allow you to share your pen and paper sketches with clients instantly. You can also make digital copies of paperwork (if you need it). If you're an illustrator or animator, a scanner is a must-have.

Client liaison

Email the only option for me, I've had no troubles working with clients over email. It encourages a kind of professionalism that's hard to capture through other mediums. The relatively slow response time means you'll soon learn to ask the right questions from the outset.

That being said, I'm a freelance web writer and that gives me a lot of autonomy. If you're working closely with a client on a design, for example, you'll probably need to make heavier use of more immediate options.

(For many web workers, there's email, and then there's Gmail. You can use a different email client, but prepare to be mildly teased/socially ostracized).

Skype if you're missing the sound of your clients' voices over the phone (or just feeling lonely), Skype is the liaising option for you. It can take 5 minutes to work out something that would take three days via email. That being said, a call through Skype is a bigger interruption than a new email in your inbox particularly if you've started working online to finally escape the sound of forever ringing phones

Instant Messenger if you're searching for the immediacy of Skype without the awkward silences, IM could be the client liaison option for you.

Just remember not to LOL in the wrong places.

Getting paid

PayPal corporate clients will often want to pay you old-school style, but individuals will favor PayPal. You lose a few dollars in the transfer process, but the immediacy and control is worth it. You can invoice and get paid within minutes if your client is online. PayPal will also handle the conversion of foreign dollars into your home currency for you.

If you're one of those people who've been somehow wronged by PayPal and don't want to use it, there are alternatives (but clients happily using PayPal might be a bit grumpy about the inconvenience).

Time management

Resisting temptation I've always thought freelance ink illustrators would be masters of productivity, because none of the tools of their trade actively encourage procrastination unless doodling counts?

If you thought the temptations of traditional freelancing were bad, for a web worker, they're just one click away. We're also good at convincing ourselves that procrastination is work. Reading feeds is research. Facebook is networking. StumbleUpon is for inspiration.

I can't really think of a solution for this. I'm too busy writing an update on Twitter.

Anti-procrastination charms and pendants usually called Web Apps' and Firefox extensions', a common piece of advice given to web workers can be summed up like this: more web apps and extensions = more productivity though the sources of this advice wouldn't like it being so brutally paraphrased.

I'm going to be a luddite here and say this equation is wrong. Technology won't magically make you more productive. In fact, I think a lot of web workers fall into the trap of spending more time reading about productivity and learning to use new productivity tools than they do actually being productive!

My rule: if it's faster than doing the same thing with pen and paper, keep it. If not, scrap it, be old-school and proud of it (and more productive).

Having said that, keeping your paperwork to a minimum is essential if you want to work anywhere in the world something I'll be covering in the last part of the series, Part 4 coming soon.

Part 4 of the series will be online tomorrow, you can also read more from Skellie at her brand new blog Anywired