Negotiation Training Now!!
Negotiation Training
View more presentations from Victoria Pynchon.
Don't Skimp on Negotiation Skills in the Downturn
I've scaled my MCLE way back this year, including any continuing education that requires travel unless, of course, it's something I'm speaking at to continue growing my business. Some MCLE courses, however, stay on my radar -- particularly those that don't require me to leave the office and that teach me skills to help me thrive in hard times. This IP settlement webinar is one of those continuing education courses I'd attend unless I thought I was already the best settlement attorney I could be. So seriously consider joining me and Chicago-IP lawyer extraordinaire R. David Donoghue of Holland + Knight for Hard Times? Learn How to Negotiate the Best IP Litigation Resolution
Live Telephone SeminarADR in IP Litigation from ALI-ABA
Wednesday February 18, 2009 from 1:00-2:00 pm EST
Why Attend?
In a difficult economy, intellectual property protection and assertion is more important than ever. The combined stressors of a poor fiscal climate and shrinking legal budgets place a significant strain on any business dependent upon IP assets. as companies face difficult economic decisions, it is increasingly difficult to fit the expense and extended uncertainty of copyright, patent and trademark litigation into a forward looking business plan. This one-hour seminar explores the use of alternative dispute resolution as a means of protecting intellectual property and business activity, while minimizing the expense and devotion of time related to traditional IP litigation.
What You Will Learn
This program examines how to move an IP dispute toward alternative dispute resolution; best practices for controlling the expense and length of the process; and best practices for successful alternative dispute resolution. Whether you are an experienced IP practitioner or simply one grappling with IP issues in your general commercial practice, knowing how to offer your clients a wide array of ADR options might make the difference between a practice that survives and one that thrives. The seminar will cover the following topics:
How to choose between litigation and ADR.
- The most successful strategies for guiding your dispute into the best ADR forum at the most productive time.
- The five basic rules of “distributive” or “fixed sum” bargaining that will give you the “edge” in all future settlement negotiations.
- The five ways to “expand the fixed sum pie” by exploring and exploiting the client interests underlying your own and your opponents’ legal positions.
- The Ten Mediation/Settlement Conference Traps for the Unwary.
Invest just 60 minutes at your home or office to learn about alternative dispute resolution in the IP field from this duo of experts. This audio program comes to you live on Wednesday, February 18, 2009, 1:00-2:00 pm EST, via your phone or your computer. Materials corresponding to the course may be downloaded or viewed online.
Trial Skills, Deposition Skills and IP Negotiation Skills Programs
Here are my upcoming speaking and teaching engagements in November and January!
I'm baaacccckkkkkkkkkkkkkkkkkkkk!!!!!!!!!!
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Judicate West Neutral and IP ADR Mediator and Blogger Victoria Pynchon.
Coach/Instructor, National Institute of Trial Advocacy: Building Trial Skills
Location: Loyola Law School Los Angeles
City: Los Angeles, CA
Dates: 1/2/2009 - 1/8/2009
Director: Williams, Gary C.
This is a week-long intensive program for new and/or experienced attorneys who need to learn/brush up on their basic trial skills. If you can take the time, your entire practice will benefit from the experience.
BrightTALK Intellectual Property Summit here! on November 11, 2008 Webcast Free
Negotiating a Settlement in IP Litigation
12:00 pm
Presenting Victoria Pynchon, Judicate West, CPR, Settle It Now, IP ADR Blog
And coming soon! Deposition Skills Training (NITA techniques) at Solo Practice University!!
Hope, Safety and Innovation
The first thing we mediators are taught (after digesting the imperative to "be conscious") is that people in conflict need to be in an atmosphere of hope and safety to be able to: (1) recognize the point of view of another; (2) be accountable for his/her own "part" in the dispute; and, (3) generate creative solutions to bust past impasse.
This is the reason one of the post categories over at the IP ADR Blog is "Innovate, Don't Litigate," which is the dispute resolution mantra of Sun Microsystems CEO Jonathan Schwartz.
That said, I am happy to link my readers to The Financial Crisis' Silver Lining over at Harvard Business Publications.
Perhaps the good times are in fact dead. And certainly someone thinking of forming the umpteenth "Web 2.0-widget-to-grab-audience-and-find-advertisers" ought to pause to think whether they really have some kind of defined competitive advantage that can translate into a sustainable business.
But real customers continue to face real problems. And as always, innovators who figure out different ways to solve those problems--and make money doing so--will have opportunities to create new growth businesses. In fact, the creative destruction unleashed by a crisis always opens up opportunities for innovation.
As a simple example, consider a New York based startup called On Deck Capital, Inc. As described in Monday's Wall Street Journal, the company loans money to small businesses. Instead of relying on individual loan officers to pour over episodic financial information and make decisions, the company has an algorithmic approach that uses software to analyze a company's day-to-day activities in a non-obtrusive way to assess credit worthiness. Its loans feature higher interest rates than loans from most banks, but lower than alternative sources.
The company launched in May, and has already distributed $10 million in loans. It has suffered very few defaults. The current credit crisis and hesitancy of many banks to loan to even the best-run small businesses creates substantial opportunity for On Deck to extend its model.
Llssez le bon temps roulez!
Blawg Review #178 Celebrates One Web Day
If you believe that law blogging is not only informative and entertaining, but capable of transforming our lives, our society, our culture and our legal system as well, run don't walk over to Peter Black's Freedom to Differ which not only rocks, it twitters, on One Web Day. Surely this will be the BlawgReview of the year!
. . . .one recurring theme on this blog has always been a recognition of the value in a strong and free internet. Therefore it is an honour to be able to host Blawg Review on Monday September 22, 2008, which is One Web Day 2008. One Web Day was founded three years ago by Professor Susan Crawford from the University of Michigan, and she describes it as an "Earth Day for the internet". The One Web Day website describes the day in the following terms:
The idea behind OneWebDay is to focus attention on a key internet value (this year, online participation in democracy), focus attention on local internet concerns (connectivity, censorship, individual skills), and create a global constituency that cares about protecting and defending the internet. So, think of OneWebDay as an environmental movement for the Internet ecosystem. It’s a platform for people to educate and activate others about issues that are important for the Internet’s future.
If you'd like to host BlawgReview or submit to it, click here. All future BlawgReview hosts please note -- THE BAR HAS BEEN RAISED!
Swim on Over to Blawg Review #173 at Chicago IP Litigation
It's a small internet world. David Donaghue of DLA Piper who hosts Blawg Review # 173 at the Chicago IP Litigation Blog shares not only the insane continuing desire to host Blawg Reviews with me, but also a LexBlog platform and a history of high school swimming competitions -- me back and free -- he fly and IM (my fly looks more like a caterpillar; I bow deeply to anyone who competes in the fly and in the IM that requires fly skill).
My 'net connections also create two degrees of separation between me and an Olympic medalist. Pictured here is New Zealand meditator Geoff Sharp's nephew sporting a bronze rowing medal for New Zealand, surrounded by his cousins, three of whom are Geoff's bright, talented and good looking children.
Don't you love the internet? If so, swim on over to Blawg Review # 173 for some of the best posts of last week in the legal blogosphere.
The IP Executive Summary of Blawg Review # 171
There's been some salacious commentary (such as WAC's Like a Vixen) about Blawg Review # 171. I just want to say to anyone who missed the sexual revolution -- on either side of the generation gap -- we're sorry to have started it all. We just never really left high school.
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We've also heard some complaints that the most recent Blawg Review is just too darn long. In honor of our sister blog and those attorneys who are still billing 2400 hours/year, we give you the IP Executive Summary of the Virgin Blawg Review #171 below.
Isaac Newton. The Straight Dope thinks the virginity of this octogenerian scientist and mathematician is less surprising that the fact that the math gene somehow keeps perpetuating itself. We consecrate Newton's virginity to this week's best IP and IT posts. William ("I am virginal") Patry is asking questions about the government's engagement in copyright infringement but it is Patry's final blog post that we celebrate as a true virginal moment. Pause here.
My late mother, aleha ha-shalom, told me repeatedly that I had a religious obligation to learn every day, and I have honored her memory by doing exactly that. Learning also involves changing how you think about things; it doesn't only mean reinforcing the existing views you already have. In this respect, Second Circuit Judge Pierre Leval once said that the best way to know you have a mind is to change it, and I have tried to live by that wisdom too. There are positions I have taken in the past I no longer hold, and some that I continue to hold. I have tried to be honest with myself: if you are not genuinely honest with yourself, you can't learn, and if you worry about what others think of you, you will be living their version of your life and not yours.
Other IP bloggers have, of course, reflected on Patry's Final Blog Words here and here.
Back in the worldly word, Patently O -- which promiscuously shares itself with millions of readers every year -- turns its pen over to David McGowan who discusses why we should not interpret the recent Quanta decision too broadly. Lou Michels suggests we be the masters of our own domains, using the the recent San Francisco IT fiasco as a cautionary tale -- don't let a single person have control of all the keys to your kingdom.
We've heard tell that reading your iPhone has replaced the cigarette for post-coital bliss, in which case you'll be glad to hear Brett Trout at BlawgIT suggest that you might soon be watching television from that device. Protection, protection, protection. In a software license, boilerplate integration and non-reliance terms might not insulate a firm from claims based upon its salesfolks "over"promises. Elsewhere, at least one IP Blogger wonders whether blog content licensing might be dying for lack of buyers? (people pay for Blog content while I give it away for free?????)
The IP Dispute of the Week, of course, is Hasbro's suit against Rajat and Jayant Agarwalla for their Facebook hit Scrabulous. Scrabble itself was invented during the Depression by Alfred Mosher Butts, an out-of-work architect. How did he do it? As the New York Times explained in its review of Steve Fastis book, Word Freak (Zo. Qi. Doh. Hoo. Qursh) Scrabble's inventor assumed that the game would work best if the game letters "appear[ed] in the same frequency as in the language itself." So he
counted letters in The New York Times, The New York Herald Tribune and The Saturday Evening Post to calculate letter frequencies for various word lengths. Playing the game with his wife, Nina, and experimenting as he went along, Butts carefully worked out the size of the playing grid (225 squares, or 15 by 15), the number of tiles (100), point values for the letters, the placement of double- and triple-score squares, the distribution of vowels and consonants, and so on.
In response to the Hasbro lawsuit Ron Coleman at Likelihood of Confusion asks "How Many Points is Infringement?" -- one of those rare legal questions that actually has an answer rather than 20 more questions.
If Player 1 opens with "fringe" (double word) for 24 points; Player 2 follows by slapping an "i" on the triple word score followed by an "n" for "infringe" and 33 points; and, Player 1 responds with "ment" for 19 points, the combined score for "infringement" is 75 points. Our readers can do the math and moves on "trademark" and copyright."
On the matter of greater moment -- Will the ax fall on Scrabulous -- Jonathan Zittrain at The Future of the Internet answers his own question in the affirmative based on the name alone, opining that by calling it "rainbows and buttercups” instead of “Scrabulous” there’d be little claim of brand confusion but noting the "residual claim that the Scrabulous game board infringes the copyright held in the Scrabble game board." More on Scrabulous and its replacement with Word Scraper at the Video Game Law Blog here. (Mr. Thrifty's and my first game of Word Scraper here!)
Has anyone recently said God bless the best IP aggregator in the universe -- the IP Think Tank's Global Week in Review? This week IPTT points to the following posts on the Hasbro Scrabble debacle -- (Spicy IP), (Techdirt), (The Trademark Blog), (Out-Law), (Law360). While we're talking IP aggregation, check out Patent Baristas' regular Friday IP Round-up. All around aggregators include Anne Reed's (Deliberations) reading list and Kevin O'Keefe's LexMonitor.
Both Geoff Sharp and I picked up 8 impediments to settling patent cases on appeal (a desire for "justice" is not an impediment but a means to settlement). While we're taking an ADR angle, Virtually Blind's post Second Life Lawsuit Avoided; Law is Cool's Love, Actionable; and, Slashdot's recommend reading of the week (The Pragmatic CSO) are all well worth a look.
Slashdot also reminds us that IP prevention is worth a pound of IP litigation with the post WB Took Pains to "Delay" Pirating of the Dark Knight as follows:
"a new studio tactic [is] not to prevent piracy, but to delay it . . . Warner Bros. executives said [they] prevent[ed] camcorded copies of the reported $180-million [Dark Knight] film from reaching Internet file-sharing sites for about 38 hours. Although that doesn't sound like much progress, it was enough time to keep bootleg DVDs off the streets as the film racked up a record-breaking $158.4 million on opening weekend. . . The success of an anti-piracy campaign is measured in the number of hours it buys before the digital dam breaks.'"
If you're sufficiently virginal to believe in magic, check out the Law and Magic Law Blog's announcement of the dismissal of a defamation lawsuit against Magic Mag as protected opinion while Ernie the Attorney has at least one more make to make your iPhone magic here.
Meanwhile, the Legal Talk Network gathers together bloggers and co-hosts, J. Craig Williams and Bob Ambrogi to welcome Attorney Kevin A. Thompson from the firm Davis McGrath LLC, and Lauren Gelman, Executive Director of Stanford Law School's Center for Internet and Society to discuss Viacom's suit against Google's YouTube for the violation of its copyrights in a $1 billion lawsuit. 
Because I used to type patent applications for Uniroyal (IBM Selectric - 5 carbon copies) I get a sweet whiff of nostalgia from Wiki Patents -- like this one -- Flexible Row Redundancy System 7404113 -- a row redundancy system is provided for replacing faulty wordlines of a memory array having a plurality of banks. The row redundancy system includes a remote fuse bay storing at least one faulty address corresponding to a faulty wordline of the memory array . . . . Another available data base for the engineering-attorney crowd is the subject of Securing Innovations post IBM Technical Disclosures' Prior Art Data Base. Concurring Opinions covers IP in the News this week, Peter Zura's 271 Patent Blog considers a patent that was a "Colossal Waste of Time" and IP Kat curls up with Small and Sole.
Next week, the Blawg Review will be hosted by the Ohio Employer's Law Blog which we expect will be far more respectful of BR's readers' political, religious and sexual sensitivities than this one was. Thanks for letting us play. And a very, very, very good night!
Head's Up for Blawg Review No. 171 at the IP ADR Blog
This is how hard I'll be working this week -- with a little help from my IP ADR Blogger colleagues -- to bring Settle It Now's readers one of the best Blawg Reviews of the year over at the IP ADR Blog this coming Monday.
If you've never participated in a Blawg Review before, check out the guidelines for submission here.
Though we've been reading Blawg Review since we put up our first tentative post on blogger (here!) in June of 2006, as hosts, we're Blawg Review virgins. So send your best posts this week to Blawg Review (follow those guidelines above) for possible inclusion in possibly one of the best BR's ever (we like to set our own bar high!)
And if you're a true Blawg Review virgin, here's how Blawg Review explains itself:
The Carnival of Law Bloggers
Blawg Review is the blog carnival for everyone interested in law. A peer-reviewed blog carnival, the host of each Blawg Review decides which of the submissions and recommended posts are suitable for inclusion in the presentation. And the host is encouraged to source another dozen or so interesting posts to fit with any special theme of that issue of Blawg Review. The host's personal selections usually include several that reflect the character and subject interests of the host blawg, recognizing that the regular readership of the blog should find some of the usual content, and new readers of the blog via Blawg Review ought to get some sense of the unique perspective and subject specialties of the host. Thanks to all the law bloggers who collaborate to make Blawg Review one of the very best blog carnivals of any genre.
Can You Say What You're Writing to Opposing Counsel Face-to-Face? Would you Want to?
Thanks to David R. Donoghue at the Chicago IP Litigation Blog for picking up my recent Daily Journal article on the Dangers of Email in Litigation and running with it in A Call for Face-to-Face Communication in Litigation. As David comments:
It is no surprise that increased aggression in a naturally aggressive proceeding has negative consequences. For example, parties that often meet for the first time at a mediation or settlement conference arrive not trusting or respecting each other, making resolution much more difficult. Pynchon suggested a somewhat radical solution to the email problem -- live meetings with opposing counsel. She suggested that you routinely have live meetings with opposing counsel throughout the course of a litigation, including perhaps even doing some meetings over a meal. The face-to-face contact would generate the trust and respect needed to resolve issues that always arise during a litigation. I have always advocated live meetings with co-counsel in a multi-party litigation. Email communications (or even conference calls) tend to get out of hand and the parties tend not to pay enough attention to others' positions. I am going to expand that practice to opposing counsel.
One other thought, that I do not know if Pynchon will agree with. Those who still avoid email and continue using letters as a main communication means are not off the hook. I started practicing when letters, not emails, were how you communicated with opposing counsel. Those letters tended to be far more aggressive than the attorneys were in a live conversation. And I suspect people tended to read extra aggression into the letters they received. I do not know if aggression is stronger in emails than letters, but the same problem exists whether you hit send, hit print or use a pen to write to opposing counsel.
Looking for help with your communication skills? Though directed at teachers, here is a list of Six Ways to Improve Non-Verbal Communication Skills that will assist lawyers and their clients in resolving conflict face-to-face.
Our Sister IP ADR Blog Selected as "Top Blog" for LexisNexis Copyright Law Center
Many of our regular readers know that I have gathered together some of the best IP arbitrators and mediators over at the IP ADR Practice Group and the IP ADR Blog. We keep one another up to date on the law of patent, copyright and trademark infringement and share our knowledge with one another about the various industries we have each served. This makes our little group one of the best resources available for attorneys who need an arbitrator or mediator with specialty legal knowledge or special industry expertise. 
I'm now proud to announce that the LexisNexis Copyright Law Center has included the IP ADR Blog on its very short list of "Top Copyright Blogs" along with our friends over at IPKat.
If the resolution of IP disputes is important to any of our industry or legal readers, we heartily recommend IP ADR, the IP ADR Blog and now, the LexisNexis Copyright Law Center.
Here's how LexisNexis let us know about our addition there:
We take pride in associating with the best talent in the legal world, so we are thrilled to include you as part of this dynamic new platform that features commentary from experts and gives visitors to the site the ability to interact with the content and one another. Also featured on the site is real-time copyright news, blogs from internal teams at LexisNexis and outside contributors, and news about attorneys, firms, and corporations, plus delivery options, including RSS feeds, podcasts and email alerts.
The selection of your blog was made by the Copyright Team responsible for the Matthew Bender Copyright publications as one of those most often visited, referred to and relied upon. . . .
Thanks LexisNexis! We'll be nosing around the Copyright Law Center ourselves in the coming weeks.
Chicago IP Litigation Blog Hosts a Carnival of Trust
R. David Donoghue over at the Chicago IP Litigation Blog is hosting a new "Carnival" of Blogs that is new to me -- The Carnival of Trust.
As David explains:
The Carnival of Trust is a monthly, traveling review of ten of the last month's best posts related to various aspects of trust in the business world. It is much like the weekly Blawg Reviews that I post links to and have hosted, but those generally contain far more than ten links. My job this month was to pick those ten posts for you and provide an introduction to each post that makes you want to click through and read more.
I'm ridiculously pleased to be included in the category of Trust in Leadership and Management along with Charles H. Green's Trust Matters; George Ambler's Practice of Leadership; and Stephen Albainy-Jenei's Patent Baristas (if they gave awards for blog template design, PB would win in my book every day of the week). In this crowd I feel like Zelig!
Here's David's generous mention of the Settle it Now Negotiation Blog and my recent post on convincing your clients to give up more than you (their attorney) predicted while still maintaining your credibility.
On the subject of trust-based leadership, Victoria Pynchon at the Settle It Now, Negotiation Blog has an excellent guide for maintaining your client's trust during a difficult negotiation: How Can I Convince My Client to Lose More than Predicted and Still Maintain My Own Credibility? The answer is complex and multi-faceted, but it boils down to the fact that you have to get the stakeholders and decision makers face-to-face, get their buy in on resolution as a goal (in addition to winning), explore all avenues of resolution, and you have to let them explore all aspects of the dispute, even those that do not matter. The last point is a difficult one for lawyers. As a lawyer you generally want to remain focused on the settlement inputs -- money, confidentiality provisions, sale of existing product if something about the product is being changed, etc. -- but from a trust perspective it is important that the stakeholders resolve not just those issues that go into a final agreement, but any problems or concerns they have related to the dispute or the parties to the dispute.
And let me just add here -- though I'll sound like a broken record to my regular readers -- that business people seek out lawyers because they believe themselves to be victims of injustice. (see my short-short video on this topic here)
Though I, as a mediator, am always seeking business solutions to legal problems, the client's injustice problem must be addressed to maintain your credibility (and retain your client's trust.). Every great mediator I know will address this issue with your client unbidden. If you're using less than great mediators -- raise the issue yourself -- all competent mediators should be prepared to address the issues foremost on your client's mind right including -- Will I lose? How much more is this going to cost me? and Am I Being Extorted or Low-Balled?
Thanks for the mention, David! I truly am greatly honored. But more than that, you've helped me reach greater numbers of business people with a message that I carry somewhat like an old-fashioned missionary -- go beyond positions; find the parties' interests; create value; claim as much of that value as possible; craft business solutions to a legal problems; and, frankly address your client's injustice issues. They'll be yours for life.
ABA Dispute Resolution Conference in Seattle in April!
The ABA Section of Dispute Resolution Presents The 10th Annual Spring Conference Pacific Currents: Sound Perspectives on ADR
April 3-5, 2008
Pacific Currents: Sound Perspectives on ADR is the premiere conference in the world for dispute resolution professionals and lawyers engaged in dispute resolution processes. This conference offers some of the best ADR CLE in the country presented by diverse and experienced faculty. With over 90 CLE programs planned, you can fulfill all of your CLE requirements over the course of a few short days.
This year’s conference also offers many dynamic and engaging plenaries.
The opening plenary entitled Hot Topics in Arbitration: The Fair Arbitration Act, Hall Street, and More will discuss the most recent developments in arbitration law, including cases pending in the Supreme Court, as well as potential arbitration-related legislation.
Linda Babcock will present the Friday morning plenary: Women Don't Ask: Negotiation and the Gender Divide. Ms. Babcock will speak about the four-phase collaborative problem-solving approach to negotiation and how lawyers and mediators can use this approach to manage the reactions and emotions that may arise on both sides of a dispute.
ABA President William Neukom will deliver a keynote speech and Tom Stipanowich, Academic Director Straus Institute for Dispute Resolution and Professor of Law, Pepperdine University, will present at the Friday Luncheon.
Saturday offers The Language Conflict: How Aggression and Violence Inform the Way We Speak presented by Kenneth Cloke and Joan Goldsmith of the Center of Dispute Resolution. This skills-building plenary will examine strategies on how to turn hostile denunciations and debates into appreciative disagreements and dialogues. Don’t miss out! Register today to attend these exciting plenaries.
I'll be presenting a seminar on Intellectual Property Mediation with the Hon. John Wagner (Fed. Magistrate, Ret.) and Christine Byrd of Irell & Manella.
To review the conference brochure click here.
Book your hotel today! The negotiated conference room rate ends soon. Contact the Sheraton Seattle Hotel & Towers at 1-800-325-3535 or register online and reference the ABA Section of Dispute Resolution 10th Annual Conference to receive the discounted conference rate of $189.
This discounted rate is available until March 4th or until the block has been filled.
The Writers Explain the Strike in Three Minutes and Fifty Seconds
Thanks to the National Law Journal's Los Angeles Legal Pad for posting this short video "Why We Strike."
A post explaining the reason the reasons given here feel pretty darn persuasive next.
And, by the way, we're really happy to see theL.A. Legal Pad becoming much more substantive a legal news source than it originally was.
We're pretty certain we have Jason Siegel to thank for this improvement in content and thank him we do!
We're looking forward to watching it grow!
Live Blogging from London with Attorney Mediator Justin Patten
Yes, we did talk mediation marketing and who should make the first offer over a wonderful lunch today at the London Law Society, but we also covered childcare, American politics (oh, do let's change the subject) and the dreadful exchange rate (oh, do let's change the subject).
Thank you to commercial attorney and mediator Justin Patten of Human Law for escorting us about and giving good advice about visiting the Royal Hall of Justice, which we did, peaking in on what appeared to be a criminal appellate argument (3 red-robed Justices & prisoner in the "dock") and one final argument in a civil case (one red-robed judge).
Unfortunately, I failed to catch Jeremy Phillips of IP Kat or Andrew Mills of Freeth Cartwright and the IMPACT blog on camera after a day-long seminar on Intellectual Property Litigation and Dispute Resolution, about which more later.
Off to see Spamalot.
Lawyers and Coaches and Patriots, Oh My!
See internet attorney Eric J. Sinrod's exhaustive legal analysis of the "rights, obligations and remedies" highlighted by the recent New England Patriot Video Spying Scandal here.
As Eric notes, I, at least have been "living on a desert island" since I was blissfully unaware of "the recent controversy involving the New England Patriots after a team official was caught videotaping opposing team defensive signals."
Though Mr. Thrifty and I both routinely toss out the sports page, what interests us is the strictly legal question addressed by Eric, i.e., whether the fine levied on the Patriots is "just" or "correct" as a matter of law. (leave it to the Wall Street Journal Law Blog to nail the most important question -- whether the fine is tax deductible, but I digress).
The penalties?
The National Football League fined Coach Bill Belichick $500,000 while the Patriots were ordered to pay $250,000. The league also ruled that the Patriots must forfeit a first-round draft choice next year if the team reaches the playoffs (which is highly likely) or second- and third-round selections if it fails to make the playoffs.
This is where attorneys and the rest of the thinking world part company. Ask any fifth-grader whether "peeking" at your opponent's game hand is cheating or not.
So What Does the Law Have to Do with Justice or "Fairness?" Not, unfortunately enough. This is also where many attorneys lose touch with their clients, particularly their commercial clients who are operating largely based upon social rules and conventions rather than upon legalisms.
I have alot more to say about this, but not enough time to say it. I'm therefore leaving you a couple of links about thedifferences between law and justice and the reasons why we all too often talk past one another, particularly when attorneys and their clients lose touch. See Why -- an Anatomy of Explanations here.
More later.
Aribitration Rises in Los Angeles Because of Mediation
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Left, international commercial arbitrator, Eric Van Ginkel.
Right, AAA patent / commercial arbitrator, Les Weinstein.
The Los Angeles Legal Pad has been talking to our friend Michael Powell over at the AAA about the sixteen percent increase in the arbitrations in the greater Los Angeles area last year.
When asked "why the jump," Powell explained:
The only thing we can put our fingers on is the increase in mediation. We think all the attention put on ADR in California has made a difference in companies that are drafting contracts and including arbitration clauses.
The increase, Powell was reported as saying, was especially prevalent in the entertainment and health care industries.
The Present and Future Tense: More Electronic Settlement Software
Stephanie West Allen of Idealawg asks, "If you have the mediator, why do you need the software? while Diane Levin of Online Guide to Mediation blogs on Tractis, a web-based platform to revolutionize the negotiation, management, and execution of contracts in e-commerce here.
Grandmother didn't just possess this wringer washer; she used it when I was a child. And the clothesline at the right is the type planted in my suburban backyard in the early '60s - the one I used to hang the laundry on with clothespins when I was a child.
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And this is the manual typewriter on which I learned the QWERTY keyboard in my junior year of highschool in 1968. 
And this (right) is the mimeograph machine we used to print flyers to announce our consciousness-raising groups in the early 1970's.
It's not exactly walking 10 miles to school in the snow. But, you know, I'm a HUGE FAN of progress.
So, I say -- bring Artificial Intelligence on!
the revolution will not be televised; it will appear on YouTube
Yesterday I wrote a pretty lengthy piece on theIP ADR Blog about the joke-theft controversy raging in Los Angeles (Funny, that was my joke) as covered by L.A. Times staff writer Robert W. Welkos.
(MAJOR ASIDE: You may be getting your news on the 'net, but remember that quality journalism continues to flow from the keyboards of dynamite reporters like Welkos, who, with co-writer Joel Sappell, gave us the brilliant six-part Scientology series in 1990, to the considerable risk of both men. Without newspapers, the blogosphere would pretty much fold itself up around yesterday's virtual fish and die there).
Having now buried the lede, I give you the burning ADR-Internet question of the day that concluded the IP ADR Blog's post, Disputing Humor: Comedy, Folkways and the Internet. .
A Conflict Resolution Process for the Future
Can we bring collaborative, value-creating dispute resolution norms and processes to this new culture? In other words, given the opportunity to create an entirely new way of resolving conflict in an entirely new culture, could we devise a system that is more self-determined, faster, cheaper, easier and softer on the people but just as hard on the problem as the old system was?
Could we abandon the adversarial paradigm because it's too expensive and cumbersome for the size and type of disputes that arise on the internet?
Could we build into that system the principles of accountability, forgiveness and reconciliation that are lacking in the present system -- a system that too often leaves people feeling so unresolved, so angry or bitter or frustrated?
I have no idea.
It feels good, though, to have finally formulated something of a question out of the chaos.
Please come on by and scrawl grafitti on our wall.
Arbitrating IP Disputes: An Interview with IP Lawyer Jay Gordon Taylor
I recently had the distinct pleasure of interviewing IP litigator and mediator Jay Gordon Taylor about the arbitration and mediation of intellectual property disputes, the first part of which follows Jay's short bio below.
Mr. Taylor is a partner with the Indianapolis, Indiana law firm of Ice Miller. His primary practice area is intellectual property law with a focus on patent, trademark, copyright, and trade secret litigation and mediation.
He also concentrates in business aspects of intellectual property law such as acquisition, sale and licensing of intellectual property assets, and computer hardware and software sale and licensing.
Part I: Arbitration of Intellectual Property Disputes
MS. PYNCHON: Do you find that IP cases benefit from arbitration or is arbitration becoming so burdened with discovery, motion practice and the like that it’s little better than litigation?
MR. TAYLOR: I have never been a big fan of arbitration except in the case of international disputes. In my experience, arbitration has been only slightly less costly and time consuming. The absence of a right to appeal if the result is erroneous would caution me against arbitrating a patent infringement dispute again.
I once had a client who faced a potential $450 million infringement exposure after an arbitrator reached a very dubious interpretation of a license clause. Because the arbitral award was binding, there was no way to challenge the opinion. Luckily, we ultimately won by proving a combination of non-infringement and invalidity. That, however, came after years of litigation and tremendous cost, most of which could probably have been avoided if there had been an appellate process after the arbitral decision.
MS PYNCHON: Do you believe the parties would likely have agreed to an appeal by one or more arbitrators before the arbitration commenced?
MR. TAYLOR: No, the license clause which had been negotiated years before required binding arbitration. The parties were locked into that clause.
MS. PYNCHON: Would arbitration be more attractive to you today if your opponent would agree to arbitral "appellate" review?
MR. TAYLOR: No. I do not think arbitration with an appeal is appreciably more appealing (quicker, less disruptive and less costly) than litigation in federal court.
MS. PYNCHON: Would you arbitrate any patent infringement cases today?
MR. TAYLOR: I think arbitration can be beneficial in international disputes. Most foreign companies distrust the US court system and are accustomed to resolving disputes without litigation. There is the additional problem of enforcing a judgment against a foreign entity. If the foreign entity has no US presence or assets, the judgment can only be enforced only by initiating an action in the courts of the country where the entity is located. Courts of most industrial countries will enforce an arbitration decision without question whereas they might not enforce a foreign court decision.
In tomorrow's post, we'll continue our interview with Jay Taylor about the mediation of IP disputes.
Mediation Confidentiality Trumps Malpractice . . . Barely
by Michael D. Young, whose recently posted Mediation Gone Wild Document Repository Web Pages you absolutely MUST SEE!
Once again, the trial courts are trying to mess up mediation confidentiality by judicially creating (legislating?) exceptions to the confidentiality statutes. When faced with a public policy that competes with California's strong public policy favoring mediation confidentiality, the trial courts too often seem to tip the balance the wrong way by inventing unwritten exceptions to the law. Luckily, in the recently-penned decision in Wimsatt v. Superior Court (Kausch) (Cal. App. No. B196903), the appellate court fixed things up...although it was clearly not happy about it.
Wimsatt involves a legal malpractice action against a prominent plaintiff's personal injury firm. In the trial court, the former client and malpractice plaintiff claimed that the law firm "breached its fiduciary duty by significantly lowering [the client's] settlement demand without his knowledge or consent." The client claimed he first learned of this fact from the confidential mediation brief that was provided to the mediator. You can see the public policy conflict already, can't you?
In the malpractice action, the client reasonably enough wants to obtain and introduce the smoking gun mediation brief, the one on which his entire case rests. However, as California practitioners should know by now, there is a slight problem with the plaintiff's wish: Evidence Code Sections 1115 et seq., and in particular Section 1119. California is serious, and rightfully so, about protecting the very cornerstone of mediation -- confidentiality. Under Section 1119, no mediation communications, including mediation briefs, are admissible in court. This has been reaffirmed time and time again by the Supreme Court (go reread Foxgate and Rojas if you don't believe me).
So what happened in the Wimsatt case? According to the opinion, in the underlying personal injury lawsuit, the client's lawyer made a comment to the personal injury defense counsel that it might be more appropriate to discuss settlement in the $1.5 million range rather than the $3.5 million range they had been discussing before. Because of this comment, claimed the client, he was forced to settle his personal injury case at mediation for an amount that was much less than the case was worth. Despite agreeing to the mediated settlement, the client brought a malpractice claim against his attorneys claiming he could have done better if only....
Alas, There is No Magic Wand: Arbitration and its Discontents
From Law.com's In House Counsel page comes Beth Bar's New York Law Journal article Some Attorneys Questinong the Advantages of Arbitration.
The chart above represents results from a survey conducted by the International Instititue for Conflict Prevention and Resolution ("CPR") earlier this year.
Aside from arbitral inefficiencies caused by lawyers doing what lawyers do (discovery and pre-trial motion practice) we suspect that a lot of the dissatisfaction comes not from arbitration as a method to resolve disputes, but from ill-advised pre-dispute boiler-plate arbitration provisions that prevent those who are handling the dispute from altering the way in which it is resolved.
We favor post-dispute arbitration agreements in which the parties can resolve the problems created by the skeletel provisions found in most contracts. Post-dispute arbitration contracts can:
- provide for the type and extent of discovery and pre-trial practice necessary for the type of dispute that has arisen under the parties' agreement -- a dispute the contract's drafters may well have been unable to predict;
- provide for the composition of the arbitration panel best suited for the dispute, a single arbitrator with specialty industry knowledge, for example, or a three-arbitrator panel with two party and one neutral arbitrator, or any other combination or permutation that the parties' needs and creativity can give rise to;
- provide for an appellate process if the parties are afraid of a "runaway" arbitrator who provides neither rationale decision-making authority nor decisions tempered by the realities with which the parties must deal;
- place limitations on -- or expand -- available remedies, including all equitable relief otherwise available in a court of law; and,
- just about any other provision the parties' needs makes sensible and efficient.
Here's the good thing about both mediation and arbitration. If the parties can sit down together and craft the best way to resolve their dispute (and a mediator might help with this process) they can make the law fit their needs rather than trying to put the square peg of their conflict into the round hole of local, state, national or international procedures.
And if you could use a contract drafting tune-up, do check out AdamsDrafting. I'd say it's the best, but I believe it's the only web site devoted to clarity in the drafting of contracts. Had Ken Adams existed a generation before I went to law school, I could likely have done something better with at least 5 years of my life when I was litigating this burning insurance coverage question -- does sudden mean quick or only unexpected -- upon which hundreds of millions if not billions of dollars of coverage for environmental clean-up rested.
Finally, we've seen a great draft of Eric Van Ginkel's article on this topic for intellectual property disputes that will appear soon in the IP ADR Blog. Keep a lookout for it.
Pick the forum to fit the fuss.
Why an IP ADR Practice and Blog?
(photo by QTR)
As I mentioned yesterday, I've launched a new IP ADR Blog with IP attorney and triple-A arbitrator, Les Weinstein.
My mediation practice has been developing in the direction of an IP specialty for the past year. Nearly twenty years ago, Les advised me to specialize at a time when I was saying it's always best to be a generalist.
He was right, of course, and in 1989, I moved to Buchalter, Nemer where I embarked upon a fifteen year career in environmental coverage litigation.
Before joining Les as an associate at Pepper, Hamilton & Scheetz in the mid-80's, I'd handled trade name and unfair competition cases. With Les, I did more copyright and patent work than I had before or since, although I continued to keep my hand in the IP field. In fact, the last case I tried before leaving practice was a copyright case involving the infringing repackaging of an old Kung-Fu movie.
That's the long introduction to the announcement that I've joined forces with Les again, to develop a specialty IP ADR practice. We've each been individually pursuing IP ADR, Les more in the capacity of arbitrator and me more in the capacity of mediator. We occasionally co-mediate multi-party IP disputes together and have found how well we work with one another.
I don't know an IP attorney half Les' age who is more on the cutting edge of the emerging technological, commercial and legal issues than he is. He's an amazing guy with a big firm background -- Graham & James; Squire, Sanders & Dempsey & most recently, the IP firm of Sheldon Mak. It's exciting to be practicing together again -- as neutrals.
Together, we've launched an intellectual property ADR practice and blog. The temporary blog site is http://www.ipadrservices.blogspot.com. Kevin O'Keefe at LexBlog is going to set up the permanent blog for us.
Important aside: an hour with Kevin on the telephone about marketing your practice with a blog is worth the price of the blog and its yearly maintenance. (But don't tell Kevin what a great deal he and his company are or he'll raise his prices and I'm not yet that successful).
The IP practice allows me to do what I love the most, which is to drive a business deal, maximizing commercial strategies and synergies, as well as long-term business planning.
Most of all, I enjoy debunking the prevailing wisdom that a good settlement is one that makes everyone unhappy. When I entered the mediation field, one of my private goals was to give my clients an opportunity to negotiate settlements that made them at least as happy as the business deals they routinely broker. Although it doesn't, couldn't, happen every time, it happens a lot more in the IP field than in any other.
When the parties realize that I'm prepared, indeed, eager, to roll up my sleeves to help them craft the same kind of sophisticated commercial deal that made them technological and commercial successes in the first place, they immediately get alot happier.
That's why I'm moving my practice in the direction of an IP specialty and why Les and I have started the IP ADR Blog. I hope you'll visit us there.
The New Intellectual Property ADR Blog
Because I've joined my expanding IP ADR practice with that of AAA arbitrator and mediator Les Weinstein, we've set up a "place holder" IP ADR Blog to reflect our partnership (in the broadest, not the legal, sense) in all things IP.
Do visit the new site if you are the client with IP issues or an attorney with IP clients.
We're excited about the new venture and hope our readers will benefit from the expansion.
When Attorneys Become the Common Enemy
The Enemy of My Enemy is My Friend
Mr. and Ms. Keene (names changed) entered the community mediation conference room and cautiously took their places next to one another at the scarred wooden table. Though slightly wary, their greetings were warm. He touched her lightly on the arm. She pulled away, but smiled back.
After the preliminaries were out of the way -- introductions, "rules of the road," the signing of a confidentiality agreement -- Mr. Keene launched into a low-key but passionate tirade about . . . . . .
THE ATTORNEYS . . . . . .
a topic upon which there was complete agreement.
The attorneys had been
- disrespectful, retiring to chambers with the judge while the parties sat outside the closed door listening to their attorneys' laughter;
- unresponsive to telephone calls; and,
- high-handed in responding to the Keenes' repeated requests to deviate from certain "standard" or "accepted" custody arrangements in favor of arrangements they knew were best for them and their child.
I apologized for the way we attorneys sometimes act as if the dispute is our own; as if our relationship with Judge and opposing counsel is more important or compelling or fun than our interest in our clients; and, as if we know more about what's good for our clients' business (be it the business of running a family or a Fortune 500 company) than our clients do.
By the time Mr. and Mrs. Keene arrived at the door of the Community Dispute Resolution Center, they were not simply exhausted and angry, they were nearly entirely disempowered.
"How do we 'de-power' our lawyers?" they asked.
"By taking your power back," I responded, alert again to my own inclinations to give unsolicited advice or raise problems only I might think the parties have.
I've seen attorneys unite disputants before. Early in my career, I observed the bitter progress of a case involving hundreds of millions of dollars in lost profits and a fight for the control of intellectual property worth more than a billion dollars. After the parties had turned one another into the tax and custom authorities, they met without their white shoe attorneys, settled the case, and sued counsel for malpractice.
The Keenes left the mediation with an agreement in hand and their self-respect restored.
I do not fault their attorneys. I do not know what transpired before I arrived on the scene.
I only know that at some point, the attorneys lost "control" of their clients by asserting too much of it.
The Greatest Thing Since Sliced Bread?
We're not opining about the recent patent ruling other than to say that the Supreme Court's KSR v. Teleflex opinion is causing quite a stir.
For law students and new attorneys, the transcript of the oral argument before the Supreme Court is here for your edification.
That was Al Gore's granddad who invented the bread slicer, no? Gore changed his name from Rohwedder at Ellis Island I understand.
For a cogent analysis by the Duane Morris firm of this and the Microsoft opinions handed down by the Supreme Court on the same day, click here.
What Would a 2007 Perry Mason Do? Put Up a Web Site
Vonage Takes Its Patent Fight to Internet Street with
We express no opinion whatsoever but like the video and its goofy country music.
Check out the low-tech YouTube customer testimonials while you're there.
Thanks to the Wall Street Journal Law Blog for hipping us to this.
Don't Crush that Cross-License: Negotiate a Business Deal
Step four in The Art of Getting the Best Deal: Solve the Joint Problem
(left: my first 2-wheeler on which my grandfather, the sign-painter, inscribed my name)
Exploring Different but Compatible Interests
Lax and Sebenius suggest that many negotiators "simply assume their interests to be the opposite of yours -- rather than different and potentially compatible."
You cannot, however, simply instruct the parties to search for different but compatible interests. The mediator needs to listen long and carefully for the needs and concerns that are driving the parties' legal positions.
But First, a Little Reactive Devaluation*.jpg)
You'll recall that the parties to my hypothetical patent infringement action had already made lists of extremely valuable non-economic benefits that they might exchange with one another to resolve the dispute. They soon pushed those bargaining chips aside, however, quickly reverting to purely monetary issues.
Why do litigants abandon business opportunities more valuable than their total monetary demand? "Reactive devaluation." **
Money seems objective and certain while the value of intangibles is imprecise and risky.
Non-quantifiable benefits are greeted with the suspicion one reserves for the street vendor hawking Louis Vuitton handbags. This apprehension is probably expressed by litigators more often than any other professionals -- "if he wants it, it can't possibly be good for me."
____________________
** I learned everything I know about the social psychology of conflict from University of Missouri Law School Professor Richard Reuben. This is one of his best and most comprehensive Power Point Presentations. Take a look when you have a moment. Learning social psychology is is like hitting the "reveal codes" key in WordPerfect or seeing the matrix: your entire conflict-life is mapped, graphed and revealed. Thanks again Richard!
Continue Reading...Don't Cut that Patent in Half: Negotiate a Business Deal
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As promised, we bring you Step Three from the Lax and Sebenius article, the "Art of Getting the Best Deal.
Bringing the Deciders and Assessing Party Interests (a Brief Review)
Yesterday we stressed the importance of identifying the "deciders" and those who might get in the way of the deciders' decision (the known unknowns and the unknown unknowns).
Today, we apply those principles, along with the third Batna step, to a hypothetical patent infringement mediation.
Because litigators are trained to organize party interests around legal theories and business people to organize their own thinking around commercial interests, your mediator should be facile with both. At some point, the mediator should assist the parties and their counsel in shifting their attention from litigation "interests" (costs, merits) to business and marketing interests.
Why?
Because there are thousands of ways to make a deal and only a handful of legal remedies to resolve a dispute.
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MARKETING MOMENT: Hiring a mediator
fluent in the language of party interests and knowledgeable about the industry in which the parties are working will greatly assist everyone in crafting a business solution to a legal problem. Continue Reading...
Don't Cut That Baby in Half!! Negotiate a Business Deal
(for more of the brilliant Charles Fincher, Jr., see LawComix.com)
When I hear from my old litigation buddies that "all mediators do is divide by two" I am tempted to wander into the "hard sell" marketing zone I usually avoid. Last night at the Los Angeles ABTL dinner, for instance, I runined my record of never overtly marketing my services by nakedly promoting myself in response to one such complaint.
For those litigators disappointed by the mediation services they receive, I'm supplying an executive summary (with commentary) of Harvard negotiation gurus Lax and Sebenius excellent article, "The Art of Getting the Best Deal."
Don't Say "Yes, Yes, Yes," When You Really Mean "No, No, No, No, No."
As Lax and Sebenius stress, business people should only say "yes" to a deal that "meets [their] real interests better than [their] best no-deal option." Mediators call the "no-deal" option your BATNA -- a Better Alternative to a Negotiated Agreement.
Let me reiterate: there is no reason to say "yes" to any deal that is worse than no deal. Ever. Period.
Tell that to the mediator the next time you're feeling pressured to accept an offer or meet a demand that makes your client really really really unhappy. Say, "I can do better at trial." Say, "I can negotiate a better deal than that." Say, "if I can't negotiate a better deal that that today, I'll approach the matter differently tomorrow." Say, "I don't believe the best settlement is one that leaves everyone unhappy." Say, "that's not what I promise my clients when they hire me." Say, "I've read Lax and Sebenius." Say, "good luck with your mediation career" and pack your bag. Bow out nicely but firmly.
Find the Deciders and Draw a Deal Diagram
A deal diagram is not a decision tree. Decision trees are about legal strategy. Business decisions are not driven by legal strategy. Business decisions are driven by finance, markets, business needs, and, commercial realities. Only lawyers are kept awake at night by legal dilemmas. CEO's are concerned with mergers and acquisitions, S.E.C. reporting requirements and how a settlement with a competitor might affect stock prices.
So what's a "deal diagram"? I'll let Lax and Sebenius explain:
Continue Reading...Supreme Court Seeks Government Advice On Patent Case
AP 4.17.07 courtesy of Law.com
The Supreme Court on Monday asked the Bush administration to weigh in on a patent case that could impact any company with global supply chains.
The Court has not yet decided whether to take the case, but instead asked the U.S. Solicitor General -- the government's lawyer -- to offer its opinion on whether the Court should wade into the dispute.
At issue is whether a patent holder can seek royalties from multiple companies as a patented product works its way through the manufacturing process.
Counterfeit Handbags and Mediator Ethics
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The SCMA Newsletter, missing in action for more than a year, will soon find its way into the mailbox of all SCMA members.
For this we owe thanks to Board Members and/or authors Lisa Klerman, Phyllis G. Pollack, Dorit Cypis, Nikki Tolt, Ed Davis, President Jan Frankel Schau and the invaluable administrative skills of Linda Cain.
I provide here a teaser from Phyllis Pollack's and my article A Mediator's Dilemma, exploring mediation ethics in the context of an illegal counterfeiting operation.
How many of us have been in this situation? We’re mediating a fairly run-of-the-mill business case – a fight over the sale of an import business. During the course of the mediation, it slowly begins to dawn on us that the parties are bargaining over the value of a business that trades in counterfeit Louis Vuitton and Gucci handbags. Is this the moment when we ask ourselves, if I’m carrying a pricey Prada, should I push the parties out of my pad?
But that’s the Carrie Bradshaw question.The mediator’s questions go more like this: as a neutral mediator, do I have a duty to: (a) chastise the parties for engaging in illegal conduct; (b) recuse myself to avoid participating in the creation of an illegal agreement; or (c) inform the parties that any settlement reached might not be enforced?
Before answering these difficult questions, consider the recent case of Hye Young Yoo v. Sue Jho (Calif. Court of Appeal, 2nd Dist).
Yoo, the purchaser of a counterfeit handbag business, sued the seller after investigators confiscated the counterfeit goods, which naturally caused the business to fail. Yoo wanted some or all of her money back and the trial Court (wearing black polyester) agreed -- to the tune of $103,250.
Not surprisingly, the appellate court, slightly more Manolo Blahnik but nevertheless also sporting Ace Uniforms, reversed, holding that when it comes to illegal contracts “the law will leave the parties as it finds them.” Id. In Yoo, leaving the parties the way the Court found them meant some pretty good times for the defendant. She stole Gucci and LV designs, sold them to (unsuspecting?) customers and made a cool $400K at a time when she was likely looking over her shoulder for the law to close in.
So, what’s a neutral mediator to do?
For the tentative resolution, click here.
Collaboration Creates Better Science
As a follow-up to yesterday's post on collaboration and cooperation, we recommend a recent article in the Harvard Business School's invaluable online resource "Working Knowledge" -- The Value of Openness in Scientific Problem Solving, by Karim R. Lakhani, Lars Bo Jeppesen, Peter A. Lohse, and Jill A. Panetta.
The HBS Executive Summary below; link to full article above.
Scientists are generally rewarded for discoveries they make as individuals or in small teams. While the sharing of information in science is an ideal, it is seldom practiced. In this research, Lakhani et al. used an approach common to open source software communities—which rely intensely on collaboration—and opened up a set of 166 scientific problems from the research laboratories of twenty-six firms to over 80,000 independent scientists. The outside scientists were able to solve one-third of the problems that the research laboratories were unable to solve internally.
Key concepts include:
Opening up problem information to a large group of outsiders can yield innovative technical solutions, increase the probability of success in science programs, and ultimately boost research productivity.Open source software communities provide a model for improving the process of solving scientific problems.
Outsiders can see problems with fresh eyes; in this study, problems were solved by independent scientists with expertise at the boundary of or even outside their field.
Achieving true openness and collaboration will require change in the mindsets of both scientists and lab leadership.
A timely post for solving the problems of WORLD 3.0.
Empathy, Evolution, Mediation and Global Warming
I took an urban hike with my good friend the composer, lyricist and novelist Kathleen Wakefield yesterday. I live at the base of the Santa Monica mountain range, making for a good hour's hike from the Los Angeles Basin to the range's crest on Mulholland Drive and back (even if we only made it to Fountain) (yes, the Fountain of Bette Davis' famous response to the question "how do you get to Hollywood?" - "take Fountain") .
Because Kathleen makes her living selling her intellectual property, we were talking about the challenges raised by and opportunities presented to artists as their work becomes more and more their own property and less and less the business of those who "discover" it (A&R), produce it (Viacom, MGM, Capitol Records, etc.), sell it (Madison Avenue) and protect it (ASCAP, entertainment lawyers).
Our conversation naturally ranged to Web 2.0; a world without borders; and, global warming, all of which took me back to the book my friend Ken Cloke is writing called "Mediators Can Save the Planet."
Why mediators? Because WORLD 3.0 will require that we supercharge our natural cooperative and altruistic natures while dampening our competitive drive without thereby discarding our ambition.
What will it take? A shift from competition to collaboration.
Can we do it? "Yes we can," says Al Gore in An Inconvenient Truth when his audience begins to move from denial to despair.
How? At least one way to get the global cooperation ball rolling will be to school ourselves in empathy, a necessary prerequisite to tackling the problem of collaborative solutions to worldwide problems.
All of which leads us to an old but timely article Empathy, Morality and Otherness by Dr. Douglas Chismar. Before proceeding to suggest art as one of the ways we can increase our ability to identify the injustices done to and suffering endured by "foreign" others, Dr. Chismar identifies three types of empathy triggers: (1) empathizer specificity; (2) situation specificity; and, (3) recipient specificity. He writes:
Empathizer specificity refers to the manner in which individual empathizers vary in their general level of empathic responsiveness as a personality trait. Some people empathize quite often and intensively, others rarely and only weakly.
Situation specificity refers to how empathizers respond selectively to a variety of different empathy opportunity situations. Certain circumstances, for example the Challenger disaster, have evoked widespread empathy, while others, such as the civil war in Rwanda, evoked little response.
Recipient specificity speaks of how empathizers respond differently to particular kinds of individuals. A neighboring family left homeless by fire may evoke considerable empathy while a wino on a street corner may stimulate little concern.
After discussing the many reasons why we understandably misread the injustices visited upon and fail to respond to the suffering of distant and foreign "others," Dr. Chrismar suggests that we nourish our natural empathy impulses with art. "We need to find a way to take the initial impulse to empathize and nourish it," he argues,
rather than letting it slide, as it is prone to do, into the rut of selectivity. Humans have discovered at least two strategies for increasing the frequency and intensity of empathy, and overcoming its partiality.
The first strategy is the largely cognitive operation of what is commonly referred to as “universalizability.” This consists of abstracting from one’s particular situation and viewing oneself as one among many. It takes various forms, including reversibility (placing oneself on the imaginary receiving end of an action) and a kind of stripping away of what makes one particular (“judging a man by the content of his character rather than the color of his skin)”.
A second strategy appeals to the arts . . . Through drama, poetry, film, and other arts, imaginative participation in others’ experience is enabled where it would otherwise fail to occur. The arts, through creating a mock reality, thrive upon the sense of fascination with the different while creating situations in which empathy is powerfully and irresistibly generated.
Human tendencies towards curiosity and exploration are harnessed to project the emotions into alien situations. The accepted suspension of cultural norms, which has tended to characterize the artworld throughout its history, permits the feeling and expression of unconventional emotions, unloosing a stream of feelings otherwise bottled up in a business-like society.
There's much more of interest in this article to anyone engaged in the project of preparing ourselves for the challenges of the coming century, including the mass relocation of people due to the rise in the sea level and the potential for catastrophic species extinction -- neither of which is science fiction anywhere but in the Bush White House.
Check it out.
New Patent Law: Fed Circuit Lowers DJ Jurisdiciton
Thanks again to our friends at Duane Morris we learn that one federal circuit court has lowered the threshhold for declaratory judgment jurisdiction in patent actions. SanDisk Corp. v. STMicroelectronics, Inc., et al., No. 05-1300
On March 26, 2007, the Federal Circuit significantly lowered the bar for determining when a prospective patent licensee can initiate a declaratory judgment action. In response to the Supreme Court’s rejection of the Federal Circuit’s “reasonable apprehension of suit” test for determining declaratory judgment jurisdiction in MedImmune Inc. v. Genentech, Inc., et al., 127 S. Ct. 764 (January 9, 2007), the Federal Circuit set forth a new rule and held that in the context of pre-litigation licensing negotiations “where a patentee asserts rights under a patent based on certain identified ongoing or planned activity of another party,” declaratory judgment jurisdiction will arise.
To read the full text of this Alert, please click here.
Stemming the Tide of Counterfeit Goods
(this wave is so big, you can hear the wind whistling on the tape)
The importation of counterfeit goods into Southern California is a problem for many of my lawyer-clients' clients.
The old saw that an ounce of prevention is worth a pound of cure is particularly appropriate where neither lawsuits nor negotiated agreements are effective deterrents. I am therefore bringing you prevention suggestions from the law firm of Porter, Wright, Morris & Arthur, Recordation of Copyright and Trademark Registrations with Customs -- Combatting Counterfeit Goods, a brief excerpt of which we copy below.
Counterfeit goods rob United States businesses of billions of dollars in revenue each year. They also damage brand reputation, which is difficult to quantify. U.S. Customs and Border Protection has authority to stop or seize counterfeit goods entering the United States; in fact, in 2005 alone, Customs performed over 8,000 seizures of counterfeit goods valued at more than $93 million.1 Trademark and copyright owners may record their U.S. trademark and copyright registrations with Customs to help Customs identify goods it has authority to seize.
For remainder of article, click here.
Live by Suit; Die by Suit: DMCA Notices Violate the DMCA?
(left: old tech)
As if the DMCA weren't already the Full Employment for BigLaw Act of 2007, we have a new DMCA cause of action -- improper take down notices.
Read today's Wall Street Journal Law Blog report on the new suit against Viacom, the latest in the YouTube wars. This one was filed by "fair use" activist groups claiming that Viacom's demands to YouTube that it remove parodies of Viacom/Comedy Central programming themselves violate the DMCA.
I will continue to be a broken record (a broken download?) on litigation about online content.
There are an infinite number of business solutions to the business problems (opportunities) created by Web 2.0. As always, there are only a few, and frustratingly chimeral, legal solutions.
I'll urge anyone within shouting distance of BigMedia to read 3D Negotiation by Lax and Sebenius, whose "brainest guys in the universe" credentials go like this:
David Lax and James Sebenius . . . combine decades of high-level, practical experience negotiating in the corporate, financial, and diplomatic realms with academic expertise that helped develop much of the modern field of negotiation.
Professor Sebenius is the first Gordon Donaldson Professor at Harvard Business School and a member of the Executive Committee that oversees the activities of the Program on Negotiation at Harvard Law School. David Lax, described by Forbes magazine as a "new negotiation theorist" on the cutting edge of his field, served as a professor at Harvard Business School from 1981-1989.
Lax and Sebenius co-founded the Negotiation Roundtable, a working research group sponsored by Harvard Business School and the Kennedy School of Government, and Sebenius currently serves as its Director.
This isn't "win win" negotiation strategy. This is the way to outwit the entire legal system and most of your commercial competitors. Why? Because a business deal creates its own legal world -- the new one that precedent couldn't possibly have predicted.
But there's no reason to rely on me. Check out 3-D & draw your own conclusions. 
(right: new tech)
Viacom, Google/YouTube and the Law of Unintended Consequences
Looking for an exhaustive analysis of the historical and technological context in which Viacom brings its billion dollar lawsuit against Google/YouTube?
Plagarism Today, the blog of a graphic designer and amateur legal analyst, provides history, background and suggested reading along with the following conclusion.
It’s important to note that this dispute isn’t just about clips from South Park and The Daily Show, it’s an element of a much larger struggle, one to determine the future direction of our culture.
History has shown us that the entities that control what information or art is viewed, be it the church, printing guilds, the government, copyright holders or search engines, control our culture.
Since the new is always built upon the old, at least to some degree, those who control the present have a heavy hand in determining tomorrow’s direction. Though the public at large has the final say, the “invisible hand’ of our cultural capitalism is guided by a very visible and observable force.
That is why this lawsuit will likely be a turning point in many regards. Perhaps even more so than the MGM v. Grokster ruling, this lawsuit could easily shape the legal climate for the Web for many years to come and, with that, the future of art, science and technology.
This case is bigger than either side likely realizes it is and that is what worries me. Both sides are protecting their interests, but one has to wonder if they have an eye on the larger picture.
If they don’t, no matter who wins, it could be catastrophic.
We’ve already seen what happens when two sides move forward into a court of law with only their personal agenda in mind, let us hope we are not subjected to that again.
Google, YouTube, Viacom and the Future
(left: mountain sues lake for copyright infringement)
I can't be the first one to ask these questions, but here goes:
- why don't the media giants recognize that when I post a scene from A Few Good Men in a blog read primarily by attorneys (a damn good media market) it's free advertising to a new generation of lawyers who were in elementary school when FGM was released in 1992. This goes in spades for equally good (or better) lawyer movies like The Verdict, screenplay by the brilliant David Mamet with Paul Newman doing some of the best acting in is entire career. Today's young lawyers were in their bassinets when this one was released in 1982. And where do they learn about the old movies they may want to see? From the internet.
- haven't these guys read The Long Tail? (see extended entry for a wikipedia primer on long tail or "niche" marketing).
- don't they know that most young people (say, everyone under 30) believe that content should be free. That by yanking movie clips or sound bites from YouTube they are alienating huge numbers of potential viewers under 30?
- wouldn't Viacom be better off spending $100,000 per month devising a way to use YouTube's media-delivery system to its own benefit rather than paying people that same sum to track down its "pirated" YouTube content and execute it there?
There's an old saying that "what you resist persists." The internet, YouTube, google, blogs, mp3 players, ripping, burning and copying are here to stay.
The means of production (and co-production) is in the hands of the people.
Still, large concentrations of capital remain (and will always remain) in the hands of corporate giants.
This is not David and Goliath because David just wants to listen to his music, man. The people who want to "monetize" David's listening (and recording) enjoyment will always find a way to do so. That's their job.
The people will continue to create and share. Mix and burn. Copy and compile.
Not that I mind Big Media wasting their money trying to stop the tide of progress.
It's just that I'd rather they use it to make better movies.
For a far more sophisticated viewpoint than my own, take a look at the MIT Convergence Culture Consortium blog on CBS' Use of YouTube for "Cross Platform Distribution" of March Madness, noting:
Continue Reading...Not surprisingly, the blogosphere points to the irony of Viacom's suing YouTube while CBS is finding effective and profitable ways to work with the video sharing site. David A. Utter with WebProNews points out that the first CBS March Madness clip on YouTube prominently displays UPS advertising and indicates the potential for major profit for the network and YouTube as well. Utter says, "Why Viacom misses the potential of YouTube while their former brethren at CBS embrace it would be a question we would like to see Viacom answer if their YouTube/Google lawsuit ever comes to trial."
Google Books Redux
This comment on my last post about Google's Moon Shot (from Search, Marketing and Musings) is more interesting than the post itself, so I include it in full here. The lessons here are so numerous and the paradigm shift so profound, that every commercial litigator, transactional lawyer and business person should be closely attending to the way Google is re-writing not only the internet, but intellectual property and the practical application of the law (and litigation) as tools to achieve commercial ends.
Have I quoted google on litigation before? I will again. Litigation is simply a business negotiation being conducted in the courts.
Alan Rimm-Kaufman - February 12, 2007 08:39 AM Thanks for the link! Whereas much of Google's dominance is based on habit (eg one could envision an upstart capturing hearts and keyboards away from G by better technology or marketing, similar to what G did to Y and AV over the last 8 years), some parts of Google's power rests on more permanent legal & technical structures -- fiber & bandwidth contracts, patents, IP settlements, etc. That's why I think the G books possible settlement described in the New Yorker piece could be really important -- we might look back on this in a few years and note the settlement (if and when it occurs) was a real fundamental lock-in 'brick' in the Google foundation... Cheers!
Settlement as Barrier to Entry Angle
Check out Search Marketing and Musings' post on the GoogleBooks Settlement-as-Barrier-to-Entry-Angle and other thoughtful reflections on the excellent recent New Yorker article on "Google's Moon Shot," i.e., google's project to create a database of all books ever printed that are still in existence.
The paradigms they are a'changin' . . .
It's not your father's copyright law anymore . . . .
To get some sense of the upcoming legal battle and commercial strategizing, see the Online Wall Street Journal article in late '05 on Harper Collins' plans to digitize its own books here and Stanford Professor Larry Lessig's deeper legal thoughts here.
We love google. We can't help ourselves. We're temporarily trusting that it will "do no evil" just because we can't wait to see what they do next.
We have no idea what in the world is depicted in the image accompanying this post. We just liked the way it looked with Google's Moon Shot.
Caveat Lawyers!!
HOW NOT TO USE THE BLOGOSPHERE
Missteps abound in the Blogsophere and they are not just technological. They are, I fear, also generational.
The following post (Top UK Law Firm Humbled in Blogosphere) is from the UK Law and Technology Blog, Human Law.
The lesson? Canned legal warnings and preemptive legal strikes transmitted to potential adversaries who are under 35 will meet with the same shoulder-shrugging, eye-rolling, "whatever'ing" of your local teenager. Entire blog post quoted verbatim below.
Baker and McKenzie, has received some increasing(and not complimentary) attention on the blogosphere. What are the reasons for this?
It follows the pre-emptive strike written by the law firm on behalf of their client, Infront Sports and Media to the american weblog, Boing Boing. Baker and McKenzie observed that their client 'anticipates the possibility of unauthorized streaming and downloading of FIFA World Cup matches.'
The letter goes on to warn that the law firm will be 'actively monitoring your website ... to identify unlawful activity and will, if necessary, take appropriate action to ensure the protection of Infront's rights of those licenses.'
Boing Boing's response (referring to B&M's client as a "hideous company") is firm.
“Oh brother. I don't even know what the FIFA World Cup is. I'm guessing it's soccer, which I hate just as much as any other pro sport. Every editor at Boing Boing detests professional sports, and we would sooner stream a video of a crumpled up paper napkin in the corner of a room than show some jackasses running after a ball. The only time we would ever post anything about pro-sports would be to make fun of them.”
Human Law's comment?
My take on this is that most law firms do not appreciate the significance of blogs and the capacity of an organisation and individual to hit back on the web. This story is dominating the blogosphere at the moment yet still most law firms have no idea how potentially damaging blogs can be to their(and their clients) business.
Just remember, be careful out there!
Litigation is So Twentieth Century
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Weren't we just talking the other day about finessing impasse by transforming litigation into a business deal? I guess we were just a little bit behind the times because it appears that no one even bothers filing a lawsuit anymore -- they go directly to the negotiation that would settle it.
Hmmmm. You might consider taking the negotiation class I've been providing gratis to lawyers who want to improve their negotiation skills so they can enter the 21st century and make, say, something north of $1 billion on a sale of their start up -- YouTube -- to another company -- GOOGLE -- that was itself a start up only eight years ago (is that possible? and I thought "to google" had been a verb for much, much longer. I grow old . . . . )
The referenced AP story is about the way YouTube emptied its potential liability dumpster before selling itself to a very high bidder. Whether or not the posting of much YouTube content is "fair use" or not, both companies hedged their bets by causing YouTube to buy the rights to materials it has already posted and that it has been accused of infringing. Right or wrong, the sound business decision was to strike a deal with CBS and two major music labels to, as the AP story put it, "befriend content providers and avoid copyright infringement lawsuits."
As AP reported.
The separate agreements with CBS, Vivendi's Universal Music Group and Sony BMG Music Entertainment c[a]me less than a month after YouTube reached a deal with Warner Music Group Corp. Hours after announcing the agreements, Google Inc. announced it would acquire the video site for $1.65 billion.
YouTube and CBS will share revenue from advertising sponsorships of CBS Videos, CBS said.
CBS will also test new YouTube technology that will help the network find copyrighted content on YouTube and remove it. CBS will also be allowed to leave that content on the site, and share revenue from advertising that appears next to the copyrighted video.
Separately, Vivendi's Universal Music Group said Monday it agreed to give YouTube viewers access to thousands of music videos. The company said it and its artists will be compensated not just for the official videos, but also for user-generated content that incorporates Universal's music.
Sony BMG Music Entertainment, a joint venture between Sony Corp. and Bertelsmann AG, also said Monday it will make video content available on YouTube -- and will also let YouTube users include some catalog songs in their own amateur video uploads.
Sony BMG said it will share advertising revenue with YouTube for all music videos that incorporate audio or video works from the Sony BMG library.
"YouTube is committed to balancing the needs of the fan community with those of copyright holders," said Chad Hurley, chief executive of San Mateo, Calif.-based YouTube.
