Doctor's Associates, Inc. v. QIP Holders LLC, 2010 WL 669870 (D. Conn. Feb. 19, 2010). My prior post on this case.

As a long-time vegetarian (over a quarter-century), I find America's obsession with "more meat" competitions simultaneously amusing and repulsive. On my personal blog, I have routinely chronicled the "burger wars" between heartland restaurants trying to outdo each other by offering bigger and bigger burgers. As far as I know, the current high-water mark is the Beer Barrel Main Event Charity Burger, a 123 pound burger that includes 80 pounds of meat. See the photo. If you're one of those people who thinks a burger can never have too much meat, good luck working on that bad boy.

Today's post involves subway sandwiches instead of burgers, but it turns out that subway sandwich restaurants' competition over claims of having more meat is no less stiff. Quiznos kicked off the war in 2006 by launching a "double meat" line of sandwiches. Quiznos ran two TV ads comparing the meat in its sandwiches to Subway's and set up a website soliciting individuals to make and submit their own comparative digital video ads. Subway was not amused and ultimately filed a seventh amended complaint (!) over Quiznos' ad campaigns. (What a patient judge).

The parties hotly contested every aspect of the litigation, and Rebecca does a thorough recap of the lengthy ruling. I'm going to focus on the court's discussion of the crowdsourced video ads published on Quiznos' ad campaign website, which Quiznos defended on 47 USC 230 grounds.

Citing the MCW v. Badbusinessbureau case from 2004, the court says "the critical inquiry with respect to CDA immunity in this case is whether the Defendants merely published information provided by third parties or instead were actively responsible for the creation and development of disparaging representations about Subway contained in the contestant videos."

The MCW decision was questionable even at its time, but it's bizarre to see the court reach into history for this obscure, archaic, unpublished and geographically distant (it was a TX precedent being cited in a CT court) district court precedent. To do this, the court bypasses dozens of more recentand more thoughtfulcases, including the multiple Ripoff Report cases that have expressly and implicitly rejected the MCW case. A more natural citation would have been the Roommates.com case, which also referenced legal distinctions between active/passive websites similar to the legal standard quoted above. However, if the court had followed Roommates.com, it almost certainly would have ruled for the defense, as Quiznos didn't require illegality or even channel users towards illegality. (Rebecca makes the same point). Therefore, I'm baffled how the court got to this legal standard citing this legal precedent.

Using this odd legal standard, the court says it's up to the jury to decide if Quiznos just exercised traditional editorial control or impermissibly "actively participated in creating or developing the third-party content submitted to the Contest website."

Unquestionably, sending this case to a jury is a 230 loss, but how bad is unclear. We'll never find out what the jury would do with the case because the parties promptly settled the case after this ruling. However, a plaintiff's ability to hold a case open through trial, rather than having it disposed of earlier in the proceedings, would itself represent a significant win for plaintiffs--it would mean plaintiffs can get discovery to fish for embarrassing facts, force the defense to incur lots of litigation costs, and get a chance to tell their sob story before a jury. (FWIW, I am not aware of any 230 case that has ever reached a juryam I forgetting something?) Nevertheless, I think very few courts will follow this precedent given the plethora of more persuasive precedents and the fact that Quiznos' crowdsourced ads were just one part of Quiznos' larger allegedly false ad campaign. Therefore, I don't expect this 230 loss to spread to many other cases.

I also don't think this case shines much light on the legitimacy of crowdsourcing ads. There's no reason to believe that crowdsourced ads are per se problematic. At the same time, if the advertiser uses the ads offline, clearly the advertiser "adopts" the ad and takes full responsibility for its contents. If the advertiser only publishes the ad online, 230 might be available but the advertiser still might tread cautiously due to the FTC Endorsement and Testimonial Guidelines, which basically ignores 230 and holds advertisers liable for certain types of third party advertisements anyway. I think 230 may nullify this part of the FTC guidelines, but most advertisers would rather not tangle with the FTC to establish the deficiencies in the FTC's thinking. As a result, I expect most advertisers will vet most crowdsourced ads, even if they only publish them only, as if the advertiser is legally responsible for the ads and not protected by 230.

BTW, the Subway v. Quiznos lawsuit isn't the only litigation over subway restaurants' claims of double meat. In an apparently unrelated lawsuit, last month a class action suit was filed over Blimpie's "Super Stacked" sandwich for overclaiming that it had double meat.

I confess some schadenfreude when I see lawsuits against meat pushers for overhyping meat quantities. I would not shed a tear if the meat pushers lock up each other in litigation death struggles and sue each other to oblivion. Of course, consumers can facilitate that outcome by refusing to patronize vendors who "compete" with each other by encouraging us to overconsume the Earth's resources.

What if it Just Ain't True?

A few years ago one of my friends accidentally discovered that his dad was in fact not his dad at all. Ouch. At twenty seven years of age, he discovered that something he absolutely knew (not thought, hoped, or wished) to be fact, was in reality, not true at all. Let's just say that his reaction wasn't a totally positive one. It never occurred to him that his truth', may in fact, be a big lie. A well-meaning lie (his mum had tried to protect him). A noble lie (is there such a thing?). But a major deception nonetheless.

What if you were to wake up tomorrow and discover that something you've believed (thought to be absolute fact) for years, simply wasn't true? Completely and utterly false. You weren't even close. How would you feel? Mad? Betrayed? Confused? Stupid? Maybe a little of each? Could it be that some of us hold on to certain beliefs in order to avoid the above feelings? After all, imagine having to unlearn something we've believed for decades? That would be quite the mental and emotional challenge, wouldn't it?

We've spoken about beliefs many times here at me-dot-com but today I want to give you a little something to chew on, think about and discuss; if you feel so inspired.

Some questions for you:

1. Is it possible that you've learned' certain things over the years that are, in fact, false? Is it maybe even likely?
2. Is it possible that some of your (self-limiting) beliefs are the very things which stop you from fulfilling (or at least, exploring) your potential, making certain decisions, taking chances and possibly finding happiness?
3. Did you consciously choose and develop your own beliefs, or did you simply adopt hand-me-downs from somebody else? (Many people do this). But Craig, why wouldn't I believe dad? He knows and I trust him, so his beliefs become mine - consciously or not. Intentionally or not. Besides, I wouldn't want to offend him would I?
4. Is it possible that you've believed certain things (seen the world in a particular way) for so long that the very thought of questioning some of your long-held beliefs makes you feel (1) uncomfortable, (2) anxious, (3) disloyal, (4) unfaithful, or perhaps even (5) overwhelmed?
5. Have you ever been coerced, pressured or expected to believe certain things, and because of those imposed beliefs you have been compelled to adhere to certain standards, rules and behaviours? Even though deep down you resented it?
6. Have you ever felt like questioning certain beliefs (to others) but held your tongue in order to keep the peace and avoid potential confrontation? (Why bother it will only create problems?).
7. For the most part, do your beliefs empower you or limit you?

Breaking Free

Sometimes beliefs are like handcuffs or leg irons. They restrict movement, potential, exploration and of course, freedom. Freedom to learn, grow and change. They keep us in the custody of something or someone. You know what I mean.

One of the most liberating, empowering and cathartic things we can do as authors of our own lives is to question our beliefs. Not for the sake of being different, difficult or rebellious, but for the sake of learning who we are, what we are and what we really believe beyond the social conditioning, the weight of expectation, the years of mental and emotional programming and beyond the pressure of group thinking.

After all, our beliefs determine our choices and behaviours (for the most part) and our choices and behaviours determine the kind of results we produce in our world. So why wouldn't we? Is it time for you to do a little unlearning?

Tell me about what you've unlearned lately.

Craig Harper (B.Ex.Sci.) is a qualified exercise scientist, author, columnist, radio presenter, television host, motivational speaker and university lecturer. For the past 25 years he has been a leading presenter, educator, motivator and commentator in the areas of personal and professional development. You can visit Craig's blog at Motivational Speaker.FREE eBook So You've Decided to Get in Shape (Again) Craig's FREE eBook takes 20 30 minutes to read, and addresses the REAL getting-in-shape issues based on his 25 years of experience. To get Craig's FREE eBook click here, weight loss books.

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With that in mind, I decided to filter the barrage of iPad coverage through a publishing lens. What follows are intriguing ideas culled from all sorts of sources. Most revolve around content applications the iPad may provide.

There's no way I'll catch all the good stuff -- there's just too much out there -- so please use the comments area to post links and commentary that grab your attention, publishing-related and otherwise.

Ebook pricing could get interesting

The iPad's release portends a price-point battle between Apple and Amazon. That's ebook pricing, not hardware.

The Wall Street Journal says Apple is pushing book publishers to set two ebook price points, $12.99 and $14.99, with Apple taking its customary 30 percent cut from any sales. They key word in all this is "set." The big kahuna of ebooks, Amazon, controls its pricing. Most bestsellers are parked at $9.99, which is below what Amazon pays a publisher for a title. Amazon is subsidizing its low price point.

But that's the present. The future is a different matter. The thought is that Amazon is taking a short-term loss on ebooks so it can solidify its position as the dominant channel. Once it owns the ebook market, Amazon can ditch the subsidy and force publishers to renegotiate pricing.

That's the fear, and Apple appears to be playing to it by giving publishers an option: get a measure of pricing control through Apple, or make more with Amazon but pray they don't rewrite the rules later. (Apple could always rewrite rules, too ...)

What's really interesting about this -- and kind of bizarre -- is that the binary Apple-or-Amazon thinking obscures an important point: mobile devices already offer publishers plenty of pricing options.

What about e-reader applications?

Steve Jobs famously quipped a couple of years ago that "people don't read anymore." Well, I guess Apple changed its stance on that one. The new iBooks app -- and accompanying store -- is a big ol' cannonball in the ebook pool.

Early discussion on a back-channel publishing list I follow has focused on how Apple will treat its new ebook competitors. Will established applications, like Stanza and the Kindle app, be removed? Kirk Biglione, co-founder of Medialoper, thinks competitors will remain in Apple's universe. Just don't count on sharing titles across apps:

Look for books to be added as a new media type in the device media library. The other reading apps may be able to co-exist as long as they don't access books stored in that library. So, for example, you probably won't be able to use Stanza to read iBooks. [Note: Kirk gave me permission to post his comments.]

One thing to consider here: Past inquiries from the Federal Communications Commission may soften Apple's competitive instincts. At least for a while.

Of course, FCC heat doesn't preclude Apple from a little friendly rivalry. Digital Trends picked up on the backhanded compliment Jobs gave Amazon during the iPad presentation:

... [Jobs] basically told the online retailer that we'll take it from here.

The reading/viewing experience

Apple has already shown what it's capable of on the music and video front, so I'm curious to see how it handles the book experience. Early word is positive from folks who've had a chance to demo the iPad. Here's Gizmodo's take:

It's an optical illusion, but just seeing the depth of pages makes the iBook app feel more like a book than a Kindle ever did for me. The text is sharp, and while the screen is bright, it doesn't seem to strains the eyesbut time will tell on that.

The iPad is backwards compatible with existing iPhone applications. That seems useful on first blush, but Joshua Topolsky of Engadget called out a big issue with "old" apps:

It's kind of silly looking. A lone app in the center of a black screen.

More to come

I'll be adding to this post in the coming days as more analysis bubbles up. Again, please use the comments to point out interesting or informative links you come across as well.

I will do a more comprehensive year in review for Cyberlaw generally, but I thought it would be fun to take a close look at how 47 USC 230 fared in 2009. This is the first full calendar year following the Ninth Circuit's en banc Roommates.com opinion, and many of us initially feared that the case would create a huge hole in 230's otherwise solid immunity. As it turns out, those concerns have not come to pass. If anything, 2009 shows us just how strong the immunity remains.

I blogged on a total of 22 cases issued in 2009 that discussed the statute. (I blog on every case I see that substantively discusses 47 USC 230). I blogged on other cases in 2009 that were decided before 2009, such as the Woodhull v. Meinel case from October 2008 and DC v. Harvard-Westlake, a 2007 arbitrator's dismissal that came to light in 2009.

Of the 22 calendar year 2009 cases, I would classify 14 of them (63%) as easy defense wins, frequently on a 12(b)(6) motion to dismiss or state law equivalent. Even many of the remaining 8 cases contained good news for defendants. For example, in Shiamili, the defense inexplicably lost at the district court level but got an easy reversal on appeal. The Stayart court granted Yahoo an easy defense win, although co-defendant Various didn't get the 230 ruling. Similarly, the Barnes case granted the defense an easy 230 win on one theory (negligent undertaking) but denied 230 for a different one (promissory estoppel). The Certain Approval Process case said 230 did not prevent the plaintiff from amending the complaint to add a cause of action, but once added, the court instantly zapped the claim on other grounds.

This leaves four unambiguous 230 defense losses in 2009. The leading 230 defense loss was the Tenth Circuit FTC v. Accusearch case, which held a retailer liable for reselling illicit phone records. The other major 230 defense loss was the NPS v. StubHub case, which held that 230 may not apply to a lawsuit over the alleged illegal ticket scalping by StubHub's sellers. Both of these cases involve the retailing of illegal items, suggesting that 230's boundaries may not reach that far.

The other two defense losses are less consequential. The Project Playlist held that 230 does not preempt state IP law claims, a conclusion that deserves note only because the Ninth Circuit held otherwise in the 2007 ccBill case. I believe that no other courts will follow the Ninth Circuit's rule that 230 preempts state IP laws, making the Project Playlist ruling unsurprising.

In People v. Gourlay, a web host was denied a 230 defense to a criminal prosecution for child molestation- and child pornography-related claims. This case turns mostly on the web host's active role creating the child pornography (as well as the host's molestation of the child actor); with that context, this case may have little influence on other cases. Indeed, the court made clear that web hosts providing standard web hosting services could fully qualify for 230 protection against a state criminal prosecution of child pornography dissemination.

In reverse chronological order, a brief overview of the 230 cases from 2009:

Nemet Chevrolet v. ConsumerAffairs.com (4th Cir. Dec. 29, 2009). One of three federal appellate court 230(c)(1) rulings in 2009 (Barnes and Accusearch are the others). A solid defense win for a consumer review website. The plaintiff's claims that the website contributed to the reviews' development and fabricated reviews were tossed on a 12(b)(6) motion to dismiss.

Shiamili v. Real Estate Group (N.Y. App. Div. Dec. 17, 2009). In an unpublicized January 2009 decision, the trial court denied a website's 230 dismissal request for claims based on user-supplied comments. In December, this error was fixed on appeal despite allegations that the website chooses and administers the user content.

Dart v. Craigslist (N.D. Ill. Oct. 20, 2009). Craigslist got a big win in its ongoing battles with various government agencies over prostitution ads on Craigslist when the court held it wasn't liable for those ads.

Riggs v. MySpace (C.D. Cal. Sept. 17, 2009). A goofy case. The court holds that MySpace's deletion of Riggs' account was protected by 230(c)(1) on the apparent theory that Riggs (the plaintiff) was the third party supplier of the deleted content. This case would make more sense as a 230(c)(2) case.

Finkel v. Facebook (N.Y. Sup. Ct. Sept. 15, 2009). Facebook wasn't liable for the contents of a user's private group even though Facebook placed a copyright notice on the page.

Intellect Art v. Milewski (N.Y. Sup. Ct. Sept. 15, 2009). Ripoff Report wins again.

Stayart v. Yahoo (E.D. Wis. Aug. 28, 2009). An convoluted, and possibly confused, ruling that Yahoo wasn't liable for search results snippets. However, Various was denied 230 because it may have originated the content in question.

Cornelius v. DeLuca (E.D. Mo. Aug. 18, 2009). An online retailer wasn't liable for user-supplied comments despite a conspiracy allegation.

Goddard v. Google (N.D. Cal. July 30, 2009). This is a follow-on ruling to an important December 2008 ruling in this case, which dismissed the plaintiff's complaints but gave the plaintiffs another chance. The December 2008 ruling is one of the most interesting and important decisions interpreting Roommates.com. In the July ruling, the judge again found that 230 insulates Google from liability due to allegedly fraudulent ads run through its network and granted a final dismissal.

Doe II v. MySpace (Cal. App. Ct. June 30, 2009). MySpace isn't liable for users' sexual assaults on other users.

FTC v. Accusearch (10th Cir. June 29, 2009). The second of three federal appellate court rulings on 230(c)(1). The defendant was an online retailer of illegal phone records. The retailer claimed that the phone records came from third party suppliers and therefore 230 immunized the retailer from liability associated with the records. The court echoed the Ninth Circuit's Roommates.com decision, effectively extending that case to the Tenth Circuit, and said that the retailer was responsible for selling the illicit phone records despite 230.

Zango v. Kaspersky (9th Cir. June 25, 2009). This is the only 2009 ruling addressing 47 USC 230(c)(2), the overshadowed and frequently overlooked sibling of 230(c)(1). Despite the rarity of 230(c)(2) cases, this case could be fairly influential. The Ninth Circuit held that 230(c)(2) protected an anti-spyware software vendor's decision to classify software as a threat. If you missed it, you might want to take a look at my presentation slides on 230(c)(2), which distill my deep look at 230(c)(2) this summer.

Gibson v. Craigslist (S.D.N.Y. June 15, 2009). Craigslist isn't liable for physical injury caused by a gun purchased via a Craigslist ad.

Doe IX v. MySpace (E.D. Tex. May 22, 2009). MySpace isn't liable for users' sexual assaults on other users.

Barnes v. Yahoo (9th Cir. May 7, 2009; amended opinion June 22, 2009). The third of three federal appellate court opinions on 230(c)(1). The Ninth Circuit held that 230 preempted a claim against a service provider for negligently delaying the removal of user content (essentially, Zeran redux), but 230 did not preempt a promissory estoppel claim based on promises the service provider made to the person requesting takedown. The initial Ninth Circuit opinion had two other unfortunate digressions: (1) it said that 230 was an affirmative defense that did not support a 12(b)(6) motion to dismiss, and (2) the opinion had ambiguous language implying that 230 preempted only state claims, not federal claims. The amended opinion helpfully eliminated both digressions.

Atlantic Records v. Project Playlist (S.D.N.Y. March 25, 2009). 230 does not preempt a state IP claimin this case, a violation of state copyright law for pre-1972 sound recordings.

Joyner v. Lazzareschi (Cal. App. Ct. March 18, 2009). A message board operator wasn't liable for user posts.

Raggi v. Las Vegas Police (D. Nev. March 10, 2009). A union wasn't liable for messages that union members posted on the union-operated message board.

Certain Approval Programs v. Xcentric Ventures (D. Ariz. March 9, 2009). 230 did not bar amending a complaint to add a new cause of action when the plaintiff also adequately alleged that the Ripoff Report contributed to the creation and development of the content at issue.

People v. Gourlay (Mich. App. Ct. March 3, 2009). This case involves the prosecution of a pornographic web host who also molested the child actor. The web host asserted a 230 defense in trying to overturn the conviction for the charges related to pornography dissemination. Although 230 can preempt state criminal prosecutions, and web hosts are protected by 230 for their ordinary web hosting activities, this web host actively participated in the site's development and therefore lost 230's protection.

NPS v. StubHub (Mass. Super. Ct. Jan. 26, 2009). In a long-running battle between the New England Patriots and season ticketholders who want to resell their tickets via StubHub, StubHub was denied summary judgment on 230 grounds. The court cites Roommates.com in saying that StubHub may have contributed to illegal ticket scalping sufficient to potentially disqualify it for 230 protection.

GW Equity v. Xcentric Ventures (N.D. Tex. Jan. 9, 2009). Ripoff Report is protected by 230 even though it offers pull-down menus and manipulates user-submitted reports.

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

As the war of words ramps up between Google and some news publishers, the latest spin seems to be how worthless the traffic is that Google sends. In reality, the traffic probably does have value, but the newspapers are likely doing a terrible job of monetizing it.

I'll give some examples in a minute, but how about an imaginary story to illustrate the problem?

Let's say a newspaper executive opens a store. They put some story headlines up in their shop window.

Now one of those old fashioned newskids comes along. You know, the type that you'd see in movies selling papers on the street. Let's call the kid Google.

Google reads the headlines and then scampers off down the street, shouting out to people things like Senate's debating health care! or 1 out of 4 homeowners are in the red!

Some of these people are interested. They ask this Google kid for more information, and Google sends them back to the news store.

At the store, the news exec owner greets visitors by asking them what the hell they want. Perplexed, they visitors say they heard about these stories and wanted to know more. The exec shouts at them. Get the hell out of my store, you freeloader! This is for members-only. We don't need riff-raff like you in here.

That's a hell of a way to run a business, don't you think? But it's pretty much how News Corporation execs seem to view the world. Consider what News Corp digital chief Jonathan Miller said earlier this month:

The traffic which comes in from Google brings a consumer who more often than not read one article and then leaves the site. That is the least valuable of traffic to us the economic impact [of not having content indexed by Google] is not as great as you might think. You can survive without it.

Today, we got similar remarks from James Moroney, executive vice president of A.H. Belo, which publishes the Dallas Morning News and other papers:

This is traffic that's not being monetized to any great degree, Moroney said. It's akin to a person who drops into town, buys one copy of your newspaper and leaves town again and yet you spend a whole bunch of time building your business around that type of customer.

Let's be clear about one reason why these statements are coming out. This is round two against Google. In round one, some publishers said Google steals our content. Google's response was that it sends them millions of visitors for free. So in round two, it's time to make out like those visitors aren't worth much. That's especially important if you're an executive who, after floating the idea of dropping Google, comes under attack as stupidly cutting your own throat.

Me, I see visitors as opportunities. This is the internet, where you can tell far more about a visitor to your web site than you can in print. You can tell:

• They're visiting for the first time or on a repeat basis
• They came from Google
• They came from a specific page, or using specific search terms
• The geographic area they're located in

And the visitor who buys your paper printed on a dead tree out of a newsstand? You can tell you sold a copy. And that's it. That regular subscriber? You know they live in a particular area, maybe some demographic info, but you can't custom your dead tree version in any way to target for that.

Can you imagine what would happen if the Wall Street Journal did a one time promotion where for a day, they gave away 1 million copies of their paper? Since there's a real cost to doing so, don't you think they'd figure out a way to make that promotion count? They'd sell special ads? They'd have a super attractive subscription offer?

But on the internet, where they're not paying anything for all that traffic flowing from Google, there just doesn't seem to be any effort. Millions of people are just written off as worthless. If they're watching The Simpsons on Murdoch's Fox TV network, they're valuable (see Free Isn't A Four-Letter Word Offline, So Why Does The Media Hate It Online?). Put the exact same people on the internet, and suddenly they're net neaderthals.

The problem isn't with the people. They didn't suddenly change when sitting in front of a computer keyboard. They don't suddenly have less money. They aren't suddenly less attractive marketing prospects. The problem is with how you're targeting them.

Remember what Miller said? That most of these visitors read a story once and then leave? Well, clearly the WSJ has some analytics running to understand that. Someone, somewhere has churned a report to arm Miller with that information. But that same data can be used to target those visitors better.

Time for a real life example. Today, at lunch, in the hard copy of the Wall Street Journal that I pay $100 per year for, I read a story bout how 1 in 4 US homeowners are underwater or owing more than their homes are worth.

I guess I have at least $100 per year in value to the Wall Street Journal, since I'm a subscriber. But that's gross revenue. Someone's being paid to deliver the hard copy to my door. There are print costs involved with producing it. I doubt the $100 I pay per year covers all that. But the WSJ also convinces advertisers that I'm somehow valuable to them, which is why they pay to place quality ads in the WSJ like this in front of me:

Now that same story is currently being featured on Google. The minute I click from Google to read it, I'm transformed. My $100 per year value is lost. Instead, I become one of those people who Miller says that he doesn't make any money from.

Well, let's see what I get:

That's the beginning of the story. It is EXACTLY the same thing I see if I read this story by clicking through to it from a link on the WSJ's home page (they've made it free to anyone from there). It's also the same thing I see when I'm logged in using my paid account.

Why is the WSJ treating the one-time / first-time visitor the same way as a regular reader? See those two big arrows I've drawn pointing into the story? I'm pointing out that one of the top goals the WSJ would have for first time visitors is to get them to take that 2 week free offer to subscribe or to take one of the free stay connected via email or RSS options. And yet, these things are shoved off to the top and side of the page.

Place them in front of the reader! At worst, you lose nothing. But more likely, you've slightly interrupted one of those freeloaders in the same way you interrupt them when they watch News Corp TV shows and get commercials. And more of them will convert. They may buy more subscriptions, or they may register so you can do outreach marketing to them.

Meanwhile, money IS being made, even off the supposed freeloaders. There's a big ad sitting there off to the site, plus another one right above. Oh, there's too much ad inventory? Then find a way to convince your advertisers to buy more ads or pay more for them, which probably means showing that your ads perform well. And if they're not performing well, fix your problem. Why aren't they?

This is an article about mortgage owners being underwater. Can we assume some of the readers are attracted to it because they may want help with their mortgages? Are there no companies that offer this to type of service? Are there no ad execs who could figure out how to reach them?

Instead, I get served with an ad from Zurich about how to buy the right insurance for my business. Seriously? That's the ad you show me? This is targeting? Roll out one of those Get a mortgage for below 5% ads that I see offline everywhere.

Even better, here's another ad that also shows for this article:

Yeah, in an article about how people can't afford their homes, you show me an ad about buying an iconic residential masterpiece in Boca Raton. And when I don't click on that, because it has nothing to do with my interests, you call me a freeloader.

Your loss, I think. I've got money to spend. Plenty of your visitors do. You're just not figuring out how to get it from me.

That visitor from Google? Show them a completely different experience, if you want. Article and ad, perhaps embedded within the content (labeled as ads, but inline, rather than off to the side). Please, go hire someone like Jeremy Shoemaker or Jennifer Slegg, both of whom live and breathe how to make as much money out of visitors as possible.

Do something. Anything. Please. Survive. But there's one thing you shouldn't do. Blame others for sending you visitors and not figuring out how to make money off of them.

If you're a Flickr user and not a Flickr Desktop Uploadr user, you should be. It is the hidden gem of the heavily trafficked site and best friend of frequent uploaders.

The Flickr Uploadr for desktop use have gone through changes over the years. It's reached its current maturity at 3.2.1 after being plagued with upload crashes, double uploads and copy loss for images. This version doesn't suffer likes its predecessors . . . well, not as much.

There still are occasional crashes but the Uploadr handles restarting better and will load up the last batch of photos for upload with their copy intact on restart. I've found this to be a more frequent issue if I am trying to upload photos to Flickr from a throttled internet connection with slow speeds. Cough, Time-Warner Road Runner, cough.

With that said, I've found the Uploadr the easiest way to get batch photos online with titles, descriptions, tags and grouped the way the I want them with privacy settings. Here's a peek for the uninitiated:

With the ability to create groups like this and see them in left hand column I am able to more effectivley tell a story about each image as it relates to one another. To be honest, it is kind of fun to be able to create a narrative about a photo set that can be shared with viewers.

You'll also notice in the Description' box that the copy begins with two characters *^'. Well, as an added bonus of using the Flickr Uploadr to get photos on Flickr, I also use it as a front-end to insert photos on my own blog and to also send links to them on Twitter.

With the use of the magic API, RSS, I have two separate crontab scripts running that read my personal Flickr RSS feed and look for these two characters. The * tells the script to take the title and description and add them as posts to my personal blog. The ^ tells the script to grab the title and URL of the image on Flickr (shorten it), then send it on to Twitter in my personal Twitter account. The special characters are a control mechanism that allow me to filter or choose additional syndication for my photos.

I'm going down a geeky path here and will pull back a bit. The Flickr Desktop Uploadr isnt' something that is brand new or undergone a massive revision lately. What it is to me an many others is a powerful tool built as an add-on to a service to make it more valuable.

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

Flickr Desktop Uploadr for Photos is a post from: TechStartups.com

Fifteen years ago I listened to James Burke at a symposium deliver a speech titled, Axe Makers of the 21st Century. It was the precursor to his writing of The Axemaker's Gift. A book that dealt with the problem that Burke was working through in his head before the internet exploded.

Axe Makers was a syllogistic study of mankind's ability to restructure society based on how the internet age would create a diaspora of talented workers. These workers in turn would be able to lead a nomadic lifestyle based on their connectivity to the internet as information workers. At this time, part of his hypothesis was that these workers would then raise the standard of living for local inhabitants.

Some components of Burke's look into the future have come true. A connected information worker can now perform their duties from anywhere they choose as long as their employer has signed off on it. Another was his correct assumption that the ubiquity of near real-time information would change global culture.

His book, The Axmaker's Gift, was an attempt to reconcile this new culture shift with cultures of the past. Burke was concerned that technology was and would strip away our humanity. That our future needed to have a moderated technological lust passion interest. In the book he advocates for the simplicity of life and a continued movement toward small communities but not through technology.

What really got me going down this path today thinking about James Burke was my experience at another small conference here in New York. As an information worker in one of America's largest cities, I find myself more connected to a community of like people than ever before.

For the last three years I was one of the diaspora working from remotely from home for businesses that at their closest proximity to me were 900 miles away. An opportunity that Burke described in detail. But in this space I was isolated. I had a few friends that could identify with my work life and worked in similar ways. However, most of the people that I was in contact with on a daily basis I couldn't connect with. We existed in two separate realities.

What Burke didn't account for was this loss of community due to the lack of commonality in the experience that nomadic workers have with the locals they take up residence with. In New York I am able to continually find common experiences with other people, workers that have similar experiences to mine.

The proximity of information workers even in this large city is due to the multitude of businesses that need our services. Many of them in media and others in financial or advertising benefit from the central location of talent. What makes this talent even more valuable is its ability to connect to one another and flow through these businesses to keep culture and ideas fresh.

The ability to capitalize on common experience, talent and proximity is what has made certain locations on our planet the centers for varying industries. Information workers, like Burke described, should be considered skilled tradespeople that for the better should be concentrated into spaces so that they can produce their best work.

DISCLOSURE OF MATERIAL CONNECTION: http://cmp.ly/4

Proximity: The Power of Space is a post from: TechStartups.com

In case you haven't noticed or cared, traditional agencies, the PR and Marketing types, have been contracting for the last few years. This year has been especially difficult for them with the rise of Social Media agencies. These upstarts are winning business and receiving opportunities that aren't even being pitched to their larger counterparts. This can be fixed . . . but there isn't much time.

What is a Social Media agency?

For those unaware of what a Social Media agency is it is an agency stocked with hardscrabble internet veterans and young talent steeped in the traditions of the tubes. I kid the youngsters, but they are, at this point truly digital natives. They grew up on the internet, were texting years before smart phone popularity and have been enculturated digital simply by being born. Often these agencies are small and their leadership, the aforementioned veterans, participated in the bubble of 2000 and have found a new source of revenue social media.

It didn't have to be this way

Traditional agencies should have seen this coming. This was a trend that they started over the last few years as their clients wanted to experiment with the precursors to social media, blogging and podcasting. During this time they would often offer small budgets to independent producers or find an overworked employee inhouse that knew something about the technologies. The deliverables were forced and atrocious (think astroturfing), poor strategy (if any) for syndication/consumption and zero metrics to show a client return on investment.

What was really happening was the large agencies were incubating social media agencies in the very earliest of stages. Even the social media agencies didn't know what they were yet. What they did know was that what they were producing wasn't working for the end client. And if this new stream of money was to continue coming in they would have to educate their handlers at the traditional agencies and develop their own tools to show ROI.

While budgets for blogging and podcasting began to dwindle, traditional agencies looked at them as passing trends. What they were missing is that the people they had been funding were now off creating tools like FiltrBox, Radian6 and putting their business strategies in place to harness the power of social media. They were going to fill the gap.

Not only have the new companies and agencies filled the gap, they are now taking away opportunities from traditional agencies. All the while, traditional agencies continue to lose money and talent. Much of that talent loss is due to layoffs. Agencies haven't figured out how to begin winning RFP's back and are letting the very people they need the most go. And when they go, they're shuffling off to boutiques and social media agencies to restart their careers with a fresh memory of the bureaucracy that didn't recognize their talent.

Saving themselves

Agencies have to stop thinking that they need more business development. They need solutions.

No amount of biz dev is going to save you when you have nothing to sell. It might work one time. But the client will realize it when they ask what they measurements for ROI are. No more biz dev or placement talk.

What kind of solutions do agencies need? The kind that evolve out of a strategy for engagement. The kind that evolve from a desire to meet the new requirements to participate in social media like listening. They need tools that show competency in measuring the strategy and tactics of a digital campaign.

The key to their continued existence is to prove they are needed. By creating solutions inhouse like monitoring software and metrics analysis hey will be able to monitor new trends and hopefully find themselves riding high for the next wave of competitors.

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

Post from: TechStartups.com

Was Census Worker Bill Sparkman A Child Predator?

Update: Before any more people start going bonkers that I'm accusing Sparkman of anything, take a breath. ... . ...All I'm doing is looking at any and all possibilities. ... Why strip him naked and bind and gag him, which has serious sexual overtones?

I have no idea what happened, but from the reporting I've seen, neither does anyone else. If he adopted a boy as a single man, or was married and split with the wife and kids, who knows. But I never assume I know a story or motive until I know it. Right now we don't. I'm simply speculating on one possible alternative, however impolite.

Well, golly, Mr. Riehl, I'm sure Mr. Sparkman's wife and son must really enjoy your coy little efforts to smear their tortured-to-death husband and father:

"We are deeply saddened by the loss of our co-worker," Commerce Secretary Gary Locke said in a statement. "Our thoughts and prayers are with William Sparkman's son, other family and friends."

Gee, how would Dan Riehl like it if we asked, without any evidence to back up our questioning, if Dan Riehl had raped and murdered any little boys? I suspect he wouldn't like it at all.

But of course, this isn't the first time Riehl's been deeply amoral and stupid in public. It isn't even the first time this month. That's just par for the course with him.

Yesterday's announcement of Google's Chrome OS plans were met with plenty of discussion about what it might mean for the future of computing. The OS is essentially a lightweight version of Linux designed to run the company's Chrome browser to access Google's (or other third-party) cloud computing services, such as Gtalk, Gmail, Google Docs, and more. While there are numerous benefits of using such cloud serviceslike data persistence across multiple machineswhat happens when the servers that run those services run into trouble, burn down, or lose power?

Unfortunately, it seems, there aren't any new answers since we examined this issue almost one year ago. In the last week alone, there have been several high profile outages at data centers that host sites, such as video site DailyMotion, credit card authorization service Authorize.net, and Microsoft's Bing Travel. Even the Google App Enginea platform for third-parties to run their own cloud servicesexperienced performance issues that resulted in high latency and even data loss.

So Cassetica sued in federal court, alleging a number of causes of action, including violations of the Computer Fraud and Abuse Act, 18 USC 1030 et seq. (CFAA). CSC moved to dismiss pursuant to FRCP 12(b)(6) for failure to state a claim. The court granted the motion, finding that Cassetica did not plead either damage or loss as required by the CFAA.

What the CFAA requires

Interpreting the CFAA differently that at least one other judge in the Northern District of Illinois has (cf. Garelli Wong & Assoc. v. Nichols, 551 F.Supp.2d 704 (N.D.Ill. 2008)), Judge Kendall held that Cassetica was required to plead either damage or loss as such terms are defined in the CFAA. (In Garelli Wong, the court held that both damage and loss must be pled.)

Under the CFAA, damage is defined as any impairment to the integrity or availability of data, a program, a system, or information. Loss is defined as any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service.

Insufficient damage allegations

The bare allegations of damage in the complaint were not enough. The court found that Cassetica did not allege any facts that would plausibly suggest that the software downloads authorized or not caused a diminution in the computers or usability of [Cassetica's] computerized data. The court went on to observe that [c]ritically absent from the Complaint are allegations that CSC's downloads resulted in lost data, the inability to offer downloads to its customers, or that the downloads affected the availability of the software.

Insufficient loss allegations

Cassetica's complaint also failed to plead loss. The allegations primarily dealt with the lost fees Cassetica would have received had the alleged unauthorized downloading not taken place. Because Cassetica did not allege that it lost revenues as a result of an interruption in service caused by CSC, its claim for lost revenue fell outside the CFAA's definition of loss.

Download picture courtesy Flickr user soren_nb under this Creative Commons license.

Tonight I managed to get out for my first decent run since racing in the Cabot Trail Relay a few weeks ago. While out pounding the trails for what felt like forever, I was able to catch up on some of my podcast listening. I highly recommend you check out two of the episodes I listened to, from two of my favourite podcasters.

TVO Search Engine

If you're not a regular listener, you may not know that Jesse Brown's excellent podcast recently moved homes - from CBC (their loss) to TVO (their gain). Michael Geist has done a wonderful job recently of drawing attention to plagiarism and bias in a report by the Conference Board of Canada claiming that Canada is a hot-spot for internet piracy (the report has now been recalled by the organization). In his second Search Engine episode in his new TVO home, Jesse interviews Anne Golden, CEO of the Conference Board. It's awkward, it's uncomfortable, and it's fantastic journalism from someone that doesn't let people get away with a template messaged response to questions. Make sure you check it out.

CBC Spark

Nora Young's Spark podcast has long been a favourite of mine. While it has a similar tech focus to other podcasts to which I subscribe, Spark tends to cover stories I might otherwise overlook. In Spark episode 80, Nora interviews Andrea Reimer from Vancouver City Council about Vancouver's plan to open up municipal data (in the same manner also announced by David Miller for the City of Toronto at this year's Mesh Conference). I found the interview immensely refreshing. Coming from a government background, I know that there's often a fear within government of what people will do with information. This often leads to the minimum information necessary being shared with the public. Reimer's take, in contrast to that:

we shouldn't, as policy makers, fear the public knowing what we know when we're making decisions, and in fact by knowing it perhaps we could inform ourselves better maybe they'll think of new creative or throw in more information that we didn't have

I found myself nodding and smiling throughout the interview. Well worth a listen, for a refreshing take on how governments can go about sharing information with the people who are funding its collection. What other podcast episodes have caught your eye (or ear) recently?

An Ohio appellate court has upheld the felony hacking conviction of a man who was found guilty of unauthorized access for misusing his computer at work.

Richard Wolf acknowledged that his behavior was inappropriate when he used his work computer to upload nude photos of himself to an adult web site and view other photos on porn sites, but he didn't think he should be convicted of hacking for doing so.

A jury disagreed and felt he exceeded his authorization on the computer, which the appellate court recently upheld (.pdf).

Mark Rasch, a former federal prosecutor of computer crimes, called the conviction a misuse of the computer hacking law.

This goes to the whole concept . . . that violation of an internal policy on the use of a computer can be piggybacked to make a crime, said Rasch, who now works as a consultant for Secure IT Experts. His uploading of nude pictures is certainly inappropriate and something he could be terminated for, but it was perfectly legal. When you use the heavy hand of the criminal law to prosecute inappropriate behavior, it's just an abuse of the criminal statutes.

Wolf was also convicted of soliciting a dominatrix online for sexual services, a misdemeanor. Rasch says using the computer evidence for proof of this crime is appropriate, but charging him separately for felony hacking goes too far.

Rasch said the problem stems from an amendment that was made to the federal Computer Fraud and Abuse Act the federal anti-hacking law that states have added to their own statutes.

The early statute only talked about unauthorized access which is breaking into computer, he said. But then they amended it to say or exceeding the scope of authorization to access a computer'.

The amendment was intended to target employees who have access to a computer but abuse that access to obtain data they shouldn't have or go into parts of their employer's network they shouldn't enter.

The amendment arose from the case of an IRS employee who was caught looking up tax returns on an assistant district attorney who was prosecuting his father, among others. Authorities tried to prosecute him on hacking charges but ran into difficulty since he was authorized to use the computer system.

Unfortunately, Rasch says, the amendment created an opportunity for prosecutors to interpret the law too broadly.

That term exceeding authorization' is very loose and ambiguous, he says.

The case began when Larry Wise, the Superintendent of the Shelby City Wastewater Treatment Plant, where Wolf was employed, was deleting old files from a work computer and found a nude photograph of Wolf.

When police interviewed him, Wolf admitted that in January 2006 he joined a web site called Adult Friend Finder to meet women and that, in violation of established work practices, he uploaded nude photos of himself from his work computer after women he met online requested pictures. He also admitted accessing various porn sites and spending more than 100 hours doing personal business on his work computer.

Forensic analysis of the computer's temporary internet files uncovered 703 pornographic photos as well as several sexually explicit e-mails Wolf exchanged with a dominatrix named Mistress Patrice, soliciting her services.

Wolf was convicted on state charges for three counts: unauthorized access to a computer, a felony; theft of services in office (essentially for depriving the city of his paid services while he conducted the unauthorized activities on a city computer on city time), which is also a felony; and solicitation of prostitution, a misdemeanor.

He was sentenced to 15 months and a $5,000 fine for the two felony convictions and ordered to pay the city about $2,400 in restitution for personal business on city time. On the misdemeanor solicitation charge, he was sentenced to 60 days (to run concurrently with his other sentence) and a fine of $500. His sentence was later reduced to two and a half years in community control.

Wolf argued for appeal on grounds that there was insufficient evidence for any of the convictions and that the convictions for unauthorized use of computer and theft of service in particular are contrary to public policy and create such a manifest miscarriage of justice that such convictions must be reversed.

The Ohio hacking statute reads in part that No person, in any manner and by any means, including, but not limited to, computer hacking, shall knowingly gain access to, attempt to gain access to, or cause access to be gained to any computer, . . . without the consent of, or beyond the scope of the express or implied consent of, the owner of the computer, . . . or other person authorized to give consent.

The appellate court wrote that Wolf's conduct was beyond the scope of the express or implied consent and the charge of unauthorized use of a computer was based upon sufficient evidence.

The appellate court vacated the theft-of-service conviction, however.

Judge John Wise wrote that while the State presented evidence Appellant spent approximately 100 hours over a five month-period utilizing internet websites that were not related to his job, there was no evidence presented that his job performance suffered or that he failed to perform his job duties.

Furthermore, even if it could be shown that Appellant failed to perform
such job duties, while it could certainly serve as a basis for termination from his
employment, such could not be the basis of a criminal theft in office charge.

One of the judges wrote a dissenting opinion on this point, saying the state had proven that the city experienced a measurable loss for the time Wolf wasted on the computer.

The county assistant prosecutor said her office will appeal the ruling to the state supreme court.

UPDATE: David Carto, the attorney who handled Wolf's appeal, told Threat Level that Wolf was prosecuted because authorities disapproved of the material he viewed online.

The reason he was prosecuted was clearly because of the content of what he was looking at, he said. If somebody else had been on an internet site studying horticulture, I don't think he would have been prosecuted. It was not obscene. It was just something that was not approved of by certain elements of the city government and by the court in which he was tried. The prosecutor and the judge both treated this basically as a sex offense.

Carto said the photos Wolf viewed were profile pictures from the adult dating site he visited. Some of the profile photos of women on the site showed nudity but not sexual acts.

He said his client was a good worker and had even been promoted after his supervisors found the pictures. Initially he was suspended while police investigated the case, but was promoted after he returned to work. He lost his job, however, when he was convicted of the charges.

He added that the city had never actually disseminated a policy regarding internet usage to tell workers what was inappropriate.

They had crafted one but they hadn't published it, he said. So there was in effect no policy and no protections on the computer no password protection or filtering of any kind so basically anybody could access anything on the internet through the city's computer.

Photo showing a random computer: chunter01/Flickr

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 pro se attorney plaintiff in Burcham v. Expedia brought suit against the travel site under Missouri consumer law, claiming that Expedia knowingly misrepresented the hotel amenities for a room that he booked on the site. He sought $5 million in damages and class certification.

It didn't help the court's view of the case that the room was booked for a hotel in Missouri in November, and one of the amenities that Burcham claimed was absent when he and his children arrived at the hotel was an outdoor swimming pool. Fair enough, Burcham also claimed that the hotel lacked an indoor swimming pool, conference room, restaurant and bar/lounge. But the court pointed out that Burcham's complaint did not allege that he or his children wished to use any of the absent amenities.

Burcham was off to a bad start.

Expedia moved to dismiss Burcham's complaint, relying on the forum selection provision that specified Kings County, Washington as the proper venue. Expedia submitted evidence showing multiple versions of its terms of use, including the current and past versions, which the court concluded contained the same material terms.

Expedia also established by affidavit that Burcham's booking had been made by a process under which the user was presented with a legend stating: "By continuing on you agree to the following terms and conditions." Beneath the legend, the full text of the terms and conditions was displayed. In order to book a room, the user was required to click on the "continue" button.

Confronted with this evidence, Burcham argued that he simply did not remember seeing the terms and conditions when he used the Expedia site. He suggested that he may have used the site from a shared computer at his law office without checking to see if the prior user of the computer was already logged onto the site. Thus, he argued, the prior user may have clicked past the terms and conditions, but they were never presented to him.

The court briefly reviewed the relevant case law (e.g., Specht v. Netscape, Register.com v. Verio, ProCD v. Zeidenberg) and the distinctions between clickwrap, shrinkwrap and browsewrap agreements, and quickly concluded that Expedia had an "enforceable online clickwrap agreement" with Burcham. Burcham's argument that he never saw the terms and conditions was dismissed both on the facts and the law.

On the facts, the court found, Burcham offered no evidence to support his "clever theory" that someone else clicked past the terms and conditions, and the undisputed facts showed that the user account created at the time the terms and conditions were assented to was associated with Burcham's own e-mail address. On the law, the court concluded that if Burcham in fact had accessed the Web site under someone else's account, he was still bound by the terms and conditions to which that user had assented, citing, e.g., Motise v. America Online, Inc., 346 F.Supp. 2d 563 (S.D.N.Y. 2004) (individual using the online account of another user bound by the same terms and conditions as the account owner).

Burcham also tripped over the evidence he himself submitted to the court along with his brief. The court noted that the Expedia Web pages Burcham submitted as exhibits contained a hyperlink at the bottom to the full text of the Expedia terms and conditions. The court noted that the terms and conditions stated that users of the site consent to be bound by those terms and conditions by accessing and using the Web site. Thus, the court concluded, even if Burcham wasn't clickwrapped, he was browsewrapped.

Finally, the court quickly dismissed Burcham's arguments that the forum selection provision was unreasonable and in contravention of Missouri public policy and that the contract as a whole was one of adhesion.

The ruling in Burcham v. Expedia is a win for the enforceability of online agreements, and another loss for pro se attorney plaintiffs for whom courts seem to have little sympathy. See, e.g., Field v. Google, 412 F.Supp. 2d 1106 (D. Nev. 2006) (rejecting pro se attorney plaintiff's "manufactured" copyright infringement claim based on Google Web crawling and caching).

Burcham v. Expedia, Inc., 2009 U.S. Dist. LEXIS 17104 (E.D. Mo. Mar. 6, 2009)

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.

Harvey Anderson, Mozilla General Counsel, wrote that after research efforts were conducted that Mozilla came, to the conclusion that our Russian users really wanted direct access to the Yandex search services in official Firefox RU builds. As a result, we're planning on setting Yandex as the default search provider for the Firefox 3.1 Russian locale builds (these changes should go into the current beta for testing). This means that, upon download and launch, the Firefox Start Page for RU locale builds will use Yandex for search queries, and the search bar will default to Yandex.

The Google-Mozilla relationship in essential to both parties: it gives Google massive distribution, and provides Mozilla with most of its revenue. And yet the Yandex move, plus Google's debut of Firefox competitor Chrome, must surely cause a little friction in this mutually beneficial relationship.

[via CNET]

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A company called Celiocorp has launched a completely different take on the netbook phenomenon. Instead of offering a lightweight computer running either Linux or XP like today's netbooks do, this notebook PC is entirely powered by a device you already own: your smartphone. Dubbed a mobile companion, the Redfly device has an 8-inch screen, a full-sized keyboard and touch pad, and is connected to your smartphone via a USB cable or Bluetooth.

To use the Redfly notebook, all you need to do is install the Redfly driver on your phone (see supported phones here). You can then use the netbook like any computer. Its bigger screen makes it easier to read documents, write emails, or surf the web. Redfly supports remote desktop, virtualization and other cloud-based environments like Citrix, GoToMyPC, LogMeIn, Microsoft's Remote Desktop protocol, stoneware, inc., and others. The netbook also features a VGA connector so you can connect your Redfly netbook to a projector for presentations.

As you use the Redfly device, you can be charging your smartphone too, assuming it's plugged in via the USB cable. The Redfly battery works for up to 8 hours, according to the company.

Because Redfly has no OS, no CPU, no hard drive, and requires no software licenses, its cost is lower than a laptop PC (an Amazon search shows that price to be around $199). That's also slightly more affordable than today's crop of OS-powered netbooks, but not by much.

The benefit to using a mobile companion instead of a PC is that the device can get lost or stolen without any threat of losing important data. Of course, a lot of companies have already started doing this now via the use of virtualized business apps running on top of the OS installed on regular company laptops all the important data is in the cloud so laptop loss or theft isn't as big a concern as before. However, given the price ($199) of Redfly vs. that of a laptop, the replacement cost would be minimal.

in reply to Redfly: A Netbook Entirely Powered By Your Windows Mobile Phone

A company called Celiocorp has launched a completely different take on the netbook phenomenon. Instead of offering a lightweight computer running either Linux or XP like today's netbooks do, this notebook PC is entirely powered by a device you already own: your smartphone. Dubbed a mobile companion, the Redfly device has an 8-inch screen, a full-sized keyboard and touch pad, and is connected to your smartphone via a USB cable or Bluetooth.

To use the Redfly notebook, all you need to do is install the Redfly driver on your phone (see supported phones here). You can then use the netbook like any computer. Its bigger screen makes it easier to read documents, write emails, or surf the web. Redfly supports remote desktop, virtualization and other cloud-based environments like Citrix, GoToMyPC, LogMeIn, Microsoft's Remote Desktop protocol, stoneware, inc., and others. The netbook also features a VGA connector so you can connect your Redfly netbook to a projector for presentations.

As you use the Redfly device, you can be charging your smartphone too, assuming it's plugged in via the USB cable. The Redfly battery works for up to 8 hours, according to the company.

Because Redfly has no OS, no CPU, no hard drive, and requires no software licenses, its cost is lower than a laptop PC (an Amazon search shows that price to be around $199). That's also slightly more affordable than today's crop of OS-powered netbooks, but not by much.

The benefit to using a mobile companion instead of a PC is that the device can get lost or stolen without any threat of losing important data. Of course, a lot of companies have already started doing this now via the use of virtualized business apps running on top of the OS installed on regular company laptops all the important data is in the cloud so laptop loss or theft isn't as big a concern as before. However, given the price ($199) of Redfly vs. that of a laptop, the replacement cost would be minimal.

Copyrights

* In the Harry Potter fair use case, the court declared that the Lexicon encyclopedia isn't fair use.

* The judge declared a mistrial in the Jammie Thomas case.

* Designer Skin v. S&L Vitamins has reached its denouement. Previous blog coverage of the case (1, 2). In the prior ruling, the judge denied the plaintiff damages for the copyright infringement. In the final ruling, the court enjoins cutting and pasting product shots but allows the defendant to recreate the product shots. Ronald Coleman has more here and here (noting that the court says that, per MercExchange, an injunction does not automatically follow from a finding of copyright infringement).

* Wired's 5 year retrospective on the RIAA's litigation campaign against file sharing.

Social Networking Sites, Blogs and Online Publishing

* J.S. ex rel. Snyder v. Blue Mountain School Dist., 2008 WL 4279517 (M.D. Pa. Sept. 11, 2008). Upholding student discipline for creating a fake MySpace page of principal. The school initially based the discipline on the student infringing copyright (by cutting and pasting the principal's photo) but this aspect of the case wasn't mentioned at all in the court's reasoning.

* O.Z. v. Board of Trustees of Long Beach Unified School Dist., 2008 WL 4396895 (C.D. Cal. Sept. 9, 2008). Two seventh graders make a video about killing their teacher, described as:

The slide show is essentially a dramatization of the murder of Mrs. Rosenlof. The first slide photo states, "Mrs. Rosenlof dies." Throughout the slide show there are photos of Plaintiff dressed up in a costume, depicting a woman meant to resemble Mrs. Rosenlof. There is red text on each slide photo that describes the scene. One slide says, "Jelly Donut's knife: haha fat bastard. here i come!" In this same photo, the viewer can see a butcher knife lunging at Mrs. Rosenlof's character from the camera's point of view. The butcher knife is then laid on the fallen victim while the text reads, "hehehe. i'm a shank yoooooooooo!" At the end of the slide show, it reads, "your [sic] dead, BITCH! :D".

I think they thought it was funny, but no one else did. One of them posted the video to YouTube. It's unclear what happens to the poster, but the co-content creator was suspended and forced to transfer to another school for her eighth grade. In this case, her TRO request is denied, even if she didn't intend the video to be publicly distributed and even if the video was not a "true threat."

* Spanierman v. Hughes, 2008 WL 4224483 (D. Conn. Sept 16, 2008). Teacher who was fired for inappropriate MySpace communications with students can't sue the school.

* An encouraging update on the Lori Drew prosecution.

* Bill McGeveran on Facebook Beacon and legal liability.

* Good NYT article on the sociology of Facebook and Twitter.

* Sam Bayard on an interesting but confusing ruling from Montana on its shield law applied to anonymous online posters.

* Verdana Partners v. Giles. Online newspaper wins anti-SLAPP claim.

* Jardin v. Datallegro, Inc., 2008 WL 4104473 (S.D. Cal. Sept. 3, 2008). A litigant's taking down a blog post and its comments is not destruction of evidence.

* Nemet Chevrolet has appealed its 230 loss. Previous blog coverage.

* Do Facebook's anti-spam policies overregulate Facebook's power users?

In essence, Google has applied the same EULA that it uses for Gmail to everything you put into the Chrome browser. What, you never read the gmail EULA? You do realize it gives Google copyrights in your email, right? Yeah, it does.

Anyway, here's the relevant clause from the Chrome EULA:

11.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services. By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services. This license is for the sole purpose of enabling Google to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.

That's potentially very bad. Should Google ever choose to make use of those rights it could cause problems ranging from simple embarrassment to loss of serious value. For example, I work at a company that makes Web-based tools for securities traders. If someone runs our tools in a Chrome browser, does that mean Google owns (or thinks it has any rights to) my customers' financial data? Should I be telling my customers not to run Chrome? Does this principle apply to anyone who ever does any home banking in the Chrome browser?

This condition seems completely unnecessary for a browser. I can't find any similar language in the Firefox EULA. The Internet Explorer EULA has language some people object to in terms of disabling and potential interference, but it doesn't seem to contain any terms claiming ownership of content. WTF, Google?

New technology usually provides a good scapegoat for falling ad revenue at the networks, but why should the Internet and DVR hog all the fun? In addition to hordes of lost manufacturing jobs, escalating gas prices, and competition from cheap imports, the beleaguered auto industry is soon to be accountable for millions in lost ad revenue.

The New York Times reports that downturns in the industry will account for huge losses in ad revenue, with a close to $3 million decline in advertising for media outlets by the end of this year.

With auto sales at their lowest since 1993, advertising cutbacks don't seem like a surprising move, but the auto industry has as of yet staved off their hemorrhaging sales numbers, remaining a steady source of advertising income for television, newspapers, and magazines. That seems to be changing now:

"Lately, the news has become much worse. General Motors, for example, recently reported a $15.5 billion quarterly loss, which exceeded Wall Street's projections."

Earlier this year, GM's announcement that it would move half of its $3 billion advertising online looked like a forward thinking approach but just last week, the company announced they would be slashing their ad budget and asked ad agencies to cut their fees by as much as 20%.

The company's recent woes are familiar throughout the industry -- most evident in its recently declared interest to sell former offroad star Hummer. With consumers increasingly interested in fuel efficiency and environmental concerns, auto manufacturers are going to have to produce more nimble products or die trying. Fears that television advertising may fall by the wayside in the process are not closer than they appear.

Photo: Flickr/lobstar28

The incredible shrinking Apple CEO [Valleywag]

Whatever figure you pick -- $523 billion or $3 trillion -- the obvious point is that the money could've been invested in technology that would do far more to secure the nation's future. Like, what if that had been spent on building nuclear power plants and electric cars? Could the U.S. have vastly accelerated its independence from Middle East oil? Not to mention what that would do for global warming. The latest Wired argues that nukes are the only way to save the planet.

It's all a moot point, of course. The investment opportunity is gone, the money dispersed to military personnel, defense contractors and all that. (As if, just coming off Memorial Day, the dollars even matter compared to the loss of life and other casualties.) But the debate needs to happen. Maybe it will help encourage better decisions going forward, and it's an interesting question of whether new technology can sometimes solve the same problem as a war.

Yesterday was Day 0 of the event - badge pickup, etc., but no real events scheduled. I took the opportunity to escape my hotel, and do a little walkabout exploration of my surroundings in Shanghai. I've been shooting tons of pictures and video, and I could write thousands and thousands of words about how cool Shanghai is. For now, enjoy this little video I put together of my walkabout in Shanghai.

Features include: about 100 people offering to sell me a Rolex, some of the great Shanghai architecture, exploration of the Super Brand Mall, including the Chinese versions of McDonalds and Toys R Us, a supermarket, and more.

Later that evening, my ISN China colleagues (and Shanghai natives) Richard and Welles basically showed me the town. They took me to PC Mall, which is a 5 story mall full of nothing but computers, electronics, cameras, and games. It's like Fry's on crack, and I'm DEFINITELY going back there before I come home. There's a bonus clip of PC Mall at the end of the video.

I also ran into my first blocked in China site while trying to upload this video - blip.tv. I love Blip, for lots of reason - video quality being one of the top. So I was bummed to not be able to use it for this video. Instead, it's on YouTube (strange that Blip is blocked but YouTube isn't - what's up with that?), with the accompanying quality loss. But at least you can see it. And the quality isn't super high anyway - it was all shot handheld in HD on my Aiptek Go-HD, then reencoded to 640360 on my trusty Elgato Turbo.264. I'll put up a high quality version when I get home.

Here's the video - enjoy!

• Phillyist was one of the first outlets in Philadelphia to report on the proposed American Commerce Building, a skyscraper that would tower 525 feet over their current tallest and could join the ranks of the world's tallest skyscrapers. The plans would include publicly-accessible gardens, a 26-story hotel, and several floors of retail spaceIncluding, we hope, metaphysical coffee.
• SFist watched one of its contributors interviewed on the local news about his LiveJournal site's notorious Muni hot-or-not posts.
• Torontoist interviewed the creator of Stuff White People Like to find out, well, what stuff white people in Toronto like.
• LAist discovered that after an interview with the former Full House patriarch, Bob Saget might just blow you(r mind). (Also, Improv Everywhere had a mission in Los Angeles.)
• Londonist had a good look at T5, the controversial new terminal at Heathrow airport.
• Gothamist's week was all about the crazy scandal surrounding NY Governor Eliot Spitzer: His involvement with a "high-class" prostitution ring, the hooker "Kristen," and his resignation.
• Bostonist wondered just what was up with the incredible shrinking burger known as "the slider."
• Seattlest turned to Geraldine Ferraro for her thoughts on the Huskies' Pac 10 tournament loss.
• Shanghaiist was disgusted by a new Chinese human rights report that claims as many as 3 million female prostitutes under the age of 18 in the United States. Meanwhile, chaos has erupted in Lhasa and Dharamsala.
• Austinist has all of your SXSW coverage covered.

When white people envision their dream home, a key part of the fantasy involves a least one piece of furniture designed by a famous architect from the 1930s.

Architects like Mies van der Rohe and Le Corbusier designed iconic modern furniture that has inspired virtually everything made by Ikea and Design Within Reach, both of which are key suppliers of furniture to white people.

But as with all things, white people will do whatever it takes to secure authenticity including paying thousands of dollars for a small piece of furniture.

If they are able to acquire this prized furniture, they will forever refer to it only by the designers name. I spend hours in the van der Rohe, just looking through these beautiful books of his work.

Referring to a white person's expensive chair as a chair' is considered poor form and will likely result in a loss of trust and/or respect.

The best strategy for avoiding this faux pas is to look for the most uncomfortable chair in a white person's home and ask who designed that? If they say Ikea or Design within Reach you can call it a chair, otherwise refer to it only by the name they give you.

It should also be noted that many white people are unable to acquire this furniture, but that does not mean you cannot use this information to your advantage.

In situations where you need to improve your connection with a white person, just mention how you hope to be successful enough to one day afford an original piece of furniture by <insert obscurely named architect>. If they have heard of the designer they will nod in agreement, if they have not, they will also nod in agreement and make a note to look it up later.

In either case, your status will rise.

As an insufferably huge public broadcasting nerd, I was happy to hear (via our pal, Ryan) that 43 Folders was mentioned in tonight's All Things Considered story about Getting Things Done.

Since this may be the first time some folks have visited the site, I wanted to highlight a few of my favorite GTD posts from the past four years. We talk about lots more than GTD here, but it's definitely a lot of my readers' favorite topic.

Thanks for stopping by. Ton of links after the jump

• Getting started with Getting Things Done' - So you sprint from fire to fire, praying you haven't forgotten anything, sapped of anything like creativity or even the basic human flexibility to adapt your own schedule to the needs of your friends, your family or yourself. Your stuff' has taken over your brain like a virus now, dragging down every process it touches and rendering you spent and virtually useless. Sound familiar?
• How does a geek hack GTD? - So I wanted to start a conversation about how geeks handle their lists, their projects, and their agendasnot so much in terms of the tool they use to store the information, although that's fair gameas with how they segment the information and decide when to break it into pieces.
• Next actions: Both physical and visible - But, for me, turning anxieties into projects and projects into discrete physical behaviors has a lot of appeal. It takes all the pressure off your brain and puts it back where it belongs: on your eyes, on your hands, and on that fat ass you need to get into gear.
• Does this next action' belong someplace else? - I've noticed that there are often items on my next actions' list that hang around a lot longer than they should. I scan and rescan and sort and add and delete, but there's always a few stragglers who hang out there for a week or more. Eventually this starts to vex me, and I try to debug why things aren't getting done.
• Mental dialogues, yak-shaving & the triumph of the mini-review' - My mini-review falls somewhere between the glances I give my lists throughout the day and the comprehensive weekly review I do each weekend. It's basically a 10-minute metamoment where I stop working and just try to re-focus on my goals, and the tactical adjustments needed to get them moved forward today.
• What are you waiting on?' - The thread that runs through all of these is that the onus is on me to a) make sure these items represent part of a commitment I've made, and b) make sure they actually get done (even if it's not my direct responsibility); otherwise, they should get moved onto my Maybe/Later' list, right?
• A Year of Getting Things Done - (3-part series: 1, 2, 3) - I recently realized that this month marks one year since I started using Getting Things Done in earnest. With the calendar year closing, it seems like an apt time to look back at what's worked, what hasn't, and where I'd like to see GTD heading in the future.
• Choosing a daily GTD action plan - I employ an informal Getting Things Done action strategy that's similar to the one Chris lays out in his post. I often have a theme for a given day, where I choose an approach that's suited to my mood, my energy level, and the kind and amount of work on my TODO list. (I'm especially a fan of days where I knock down mosquito tasks' as Chris calls them.)
• Fractal Implementation, or, On the Dangers of David Allen's Finger - This is my stake in the ground about GTD: if you can stay focused on drawing from its best practices to get more of the important things in your life accomplished, then you'll be a happy kid. For real. But if, like a seeming majority of people I encounter these days, you allow yourself to obsess endlessly over the minutest details of implementation and maintenancewell, you're screwed. You're wasting your time.
• Inbox Zero: Processing to zero - The more email you have been neglecting in your inbox, the more drastic and ruthless your processing must be.
• Do a fast mind-sweep - By and large, you'll discover, your head is flooded with this stuff that you aren't or haven't been doing anything about. Not coincidentally, this is almost always stuff that represents some kind of incompletion, functional fuzziness, or procrastination on your part.
• Simplify your contexts - If you feel a gnaw about the loss of your old contexts, try to shunt some of the mental load into sub-projects and better verb choices in your tasks.
• Folders for organization and action - But, as ever, if you're fussing and thinking and fiddling and wondering about this stuff, you aren't doing it, and dammit, that's what this is all about.
• Priorities don't exist in a vacuum - Unless you can always satisfy the big red letter commitments you've created for yourself as well as the ones that are constantly being generated for you by others an obsession with priority alone is pointlessly stress-inducing, unhealthy, and unrealistic.
• 6 powerful look into verbs (+ 1 to avoid) - Decisions can only be delivered after you've nourished them with timely and thought-provoking information.
• Productive Talk Compilation: 8-episode podcast with GTD's David Allen - Hope you all enjoy hearing the whole series, in order, all in one place. There's some nuggets of GTD gold in there, if I do say so myself.

It's not really about age, but about the ability to constantly learn new languages and skills in order to stay competitive in the environment. The last thing he wanted to do as a web developer is get stuck doing production work, or maintaining a system someone else had already built for him.

I suggested that he should probably look at expanding his business skills, to grow beyond being a code monkey' which would lead him beyond tech lead, into program management and eventually strategy.

What specific steps did I tell him to take?

Start reading books on web management and process management

Understand how the software fits into the greater scheme of the business, department, or company

Expand and learn more about user experience research

Grow a network by adopting social media to learn, discuss, and market oneself

Lead projects: develop needs, do research, develop plans, create feature function reports, and feasibility reports, learn cost/benefit analysis

Lead programs: manage a business program (where software is the core) and manage it like a profit and loss, become an integrated part of the business.

Practice presentation to business managers and stakeholders

Engage business teams in meetings, training, and lunch

Ultimately, he should be able to move into a more business role, where business and customer needs are always present (and hopefully, with greater compensation and opportunities). Since strategy is always needed, and armed with a strong technology background, he should be able to move into a position that requires less time to re-invent a new language every other year.

Do you have suggestions for him? What should he do to avoid the developer recycle shuffle and move up the food chain?

Rember that Merrill lost $12 per share in a single quarter - this is for a stock trading in the mid-$50s. The number was significantly larger than official analyst expectations of less than $5 a share, and the mood was grim going into the call. But just look at how Thain played it:

• As is S.O.P. for such things, he explained that Merrill Lynch is very profitable in terms of its business lines. That's hugely important to investors, who like to be forward-looking rather than backwards-looking.
• He emphasized that Merrill has no liquidity problems.
• He said that there would be no more dilution of shareholders beyond the capital infusion announced a couple of days ago.
• He talked about the "Goldmanization" of the management structure, although he didn't use that word - essentially saying that he would stop the bank from being at the mercy of individual silos.
• Interestingly, he's scaling back trading operations, too - not very Goldmanesque, perhaps, but it is reassuring, especially given that, well, Merrill's traders aren't Goldman's traders.
• He was upbeat, using words like "very optimistic as we look out to 2008," which sets him apart from most other banking CEOs.
• He made it clear that he was drawing a line under these write-downs and that there wouldn't be yet another shoe to drop. One way of doing that is by putting on $23 billion of short positions against the CDOs exposures that Merrill retains.
• At the same time, he was clear that the loss was no accounting gimmick, that it was real, and that he does not expect the write-downs to become write-ups in future. Which is understandable, if he has $23 billion of short positions.
• He gave the impression that he had hit the ground running, in stark contrast to the notorious Al Lord interview where the new CEO hadn't got a real handle on his financial institution yet. He didn't ask Merrill's shareholders to be patient as he settled in and developed a strategic plan, or anything like that.
• He dared the markets not to take him at his word, not only in terms of future write-downs in the CDO portfolio, but more generally in terms of unexpected black swans. They simply won't happen, he said.
• He came right out and said the stock was cheap at present levels.

The result of all this? A decidedly modest drop in the share price. Yes, it's down about 2.5% from where it closed on Wednesday, but it's up from where it closed on Tuesday, when the capital infusions were announced. And at $53.70, it's already up more than 10% from its 2008 lows. Well done, that man!

Back in April, we speculated about one of the hidden dangers of depending on web services to store your data: the possibility that no one was doing backups. Now that possibility may have turned to reality for users of Omnidrive (once touted as the clear leader in the online storage field by TechCrunch). The service has been offline for some days, with its servers currently not responding at all. A December article at ReadWriteWeb contains serious allegations of fraud from the company's ex-CTO (as well as a defense from the CEO).

My sympathies at this point are with Omnidrive's users, particularly those who have their only copies of documents on an unreachable server. I can think of plenty of times when a days-long outage (let alone a permanent loss) of my own document storage would be devastating. The larger question, though, is what you as a user can (or should) do about this? Online document storage is certainly attractive to the web worker; being able to access and share your work easily in any browser is definitely a killer feature. But how do you balance that off against the fact that your documents could simply vanish overnight?

One possible approach is simply to choose your storage vendor very carefully. Backup vendor Mozy, for example, is owned by giant EMC, Jungle Disk uses your Amazon S3 account for storage (so your data will be available even if Jungle Disk itself goes under), and Google Documents is, well, Google. Some smaller vendors have their own serious backup policies to guard against hardware failures.

Yet in a world of imperfect hardware and software, as well as regulatory and legal issues, choosing one company for storage is still ultimately a gamble. It may be unthinkable that an EMC or Amazon or Google could fail, but it's not impossible. No matter how carefully you choose, entrusting your data to a single online storage vendor is the equivalent to storing it on a single hard drive: it introduces a single point of failure into the system.

For hard drives, of course, we've long had several answers to this problem: backups or RAID. If disks are unreliable, make a copy of the data elsewhere. If one disk is unreliable, store your data on three or five or seven disks, with a scheme that allow perfect data recovery even if one or two disks should suddenly be reduced to iron filings by hardware failures. What the disappearance of Omnidrive suggests to me is that it's time for the next step in the evolution of online file storage, now that there is more than enough competition in the market for simple storage. We need the online equivalent of backups and RAID.

This doesn't mean that the online storage services need to use backups and RAID on their servers; that's irrelevant to me as a consumer in providing protection against vendor failure. Rather, I'd like to see products that automatically back up, say, a Box.Net account to Amazon S3 storage. Or an API that writes copies of my data simultaneously to Amazon and the fabled GDrive, and allows retrieval from either service if the other is missing. Or even a way to mirror my online storage, overnight, down to a desktop drive for safekeeping.

Until products like these are available (and if I've just missed them, please let me know in the comments), storing your documents online will remain a gamble. Perhaps a safe gamble, but it could be made far safer with more vendor independence.

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