Brian Malcom

No good deed goes unpunished, especially those done in violation of copyright law.  Copyrights & Campaigns posted about this very subject last week.  

Harvard Law Professor Charles Nesson led a defense team for a graduate student at the university pro bono.  The student was ordered to pay $675,000 for unlawfully downloading 30 songs on the Internet.  (Yes, that is $22,500 per song).  Here's hoping he really likes the songs. 

A while ago, the plaintiffs in the case filed a motion to compel seeking evidence regarding the posting of seven songs to a public website.  The federal district judge granted the motion to compel in June 2009.  The plaintiffs then filed a motion for costs and fees under Rule 37.  The motion for costs and fees is available here.  No opposition was filed. 

Last week, the judge also ordered the defendant and his attorney, Professor Nesson, to pay the costs and attorneys fees for the motion to compel filed by the plaintiffs.  Professor Nesson apparently posted some songs at issue in the case on his blog, with a public link for anyone to download the songs. 

The Lessons: 

1. If you find yourself in a lawsuit concerning illegal downloading or distribution of copyrighted material, do not -- I repeat, do not -- post a link for everyone and their cousin to download the material for free;
2. Respond to motions that seek to tax costs and fees against you and your client; and 
3. Pro bono can cost you. 

By James Bowden 

Here are a few drafting tips that I’ve learned the hard way: 

“Due to” Always Means Money Owed – If the recession has affected a registrant’s financial position, “overall revenue decreased because of prevailing economic conditions.” Leave “due to” for promissory notes and the like. 

Define Terms and Use Them – It is best practice to write out the full “the 2010 Annual Report to Shareholders on Form 10-K (the “Annual Report”) as filed with the Securities Exchange Commission (“SEC”) on March 15, 2010” the first time the terms are used in each document. After that, writing the full description in detail is too cumbersome in a document that refers repetitively to the Annual Report and the SEC, especially since 10-K and proxy season dictates that emails to my spouse routinely refer to the Annual Report and the SEC (“I’m going to be a bit late – we’ve got to get the Annual Report to the SEC”). 

When Drafting Board Minutes, Stay Out of the Weeds - If you are drafting minutes to a meeting in which two engineers and a software executive on the Board of Directors get hot and wonky discussing the compatibility of a potential acquisition’s patented technology with the Company’s product line in endless and graphic detail, “A thorough discussion of the potential benefits of a strategic partnership ensued.” That is all. 

Triple Check People’s Names – Want to offend an executive officer who is very proud of their Scandinavian heritage? Pretend you are a customs agent at Ellis Island circa 1907 when you draft a document requiring their signature. Bonus points for feigning shock that “Bjerke” is a proper noun after granting the hapless exec an involuntary name change (“Since when is Sarah Burke our CFO?”).

 Plain Language is a Badge of Honor – Keep it direct and legible. Annihilate all unnecessary adjectives; eliminate superfluous SAT words with extreme prejudice. Leave “Whereas, the party of the first part heretofore dost transfer all dower and curtesy thereto to the party of the second part” in the nineteenth century where it belongs. The SEC has requested that I mention the benefits of justifying left. 

Replace-All Has Been Disabled – A friend of mine once told me that the fact* that the blender is always broken was the best lesson he learned in bartending school (“I’m sorry – I could spend 10 minutes making a sticky mess of the bar and ignoring other patrons while I make you a frozen daiquiri that you will not tip me for, but unfortunately the blender is broken. Can I get you a rum and coke instead?”). Similarly, it is a fact* that the “Replace-all” feature in your word-processing program has been disabled. That is, of course, unless you want to change every “unit” in your document into “membership interests,” including those in the Membership Interested States of America. It is also a fact* that reply-all has been disabled on your email.  

If you have any other drafting tips, please leave them in the comments section for my benefit. Please.

So what have we learned in our first year blogging at the YLB?  Here is our totally opinionated list, derived specifically from our experience with this blog only:

For Part I, here are the dos:

• DO have as many contributors as possible.  In addition to having articles coming from a variety of people, it helps to have a number of people involved in the editing and “managing.”  We, after all, have day jobs.
• DO create recurring “themes” which can be used for articles on similar topics or forms.  Sometimes it is easier to “see” an article in a news story or experience in the form of something we have done before.
• Do get people involved, who want to do it.  It is no use having a practice group leader “suggest” that someone write an article or participate in the blog.  People need to want to do it!
• DO employ the grammar-police.  Like most writing, it is impossible for one person to catch all the mistakes and typos.  With more casual writing like this, it can be easier to make gaffes. 

The Young Lawyers Blog is one year old, which, obviously, makes it our blogiversary today!

Thanks for hanging in there with us. 

We’re working on a list of what we have learned with this blog this year.

By James Bowden

Do you need an attorney, and are more familiar and comfortable with online dating sites than the common law firm website?  Are you a practicing attorney who wishes for a way to use your charismatic personality and your rakish good looks to woo clients?  Have no fear, LegalTube is here!

LegalTube is apparently the natural evolution of legal advertising in the information age.  According to the ABA’s Business Law Today:

The site is intended to mimic that initial conversation for a prospective client—learning about the lawyer's personal style, experience, areas of expertise, and answers to general queries. As opposed to a standard directory where only certain text information is available, lawyers participating in LegalTube can not only give virtual tours of their offices, but also give viewers insight into their firm, their personality, and their background.

I don’t know about all of that, but the website does feature the three worst-delivered lawyer jokes in history.  Also included is an honestly entertaining “webisode reality series” called “Law After Dark,” which is really just a series of hilarious/sad clips from the Jefferson County Alabama (Birmingham) Circuit Court.  Fun game: juxtaposing the instructions concerning appropriate courtroom attire in the “Shorts?” clip with the treatment given to the defendant wearing the Hooters t-shirt in the “Nice hair” clip, planning wardrobe for upcoming hearing in Jefferson County appropriately.

Overall, I don’t know how well the site functions as a business development tool, and I somehow doubt that its existence will improve a client’s ability to select their ideal attorney – but the limited content available certainly is entertaining.  It should keep you chortling for at least a .2.