E-Commerce Law

Nine Must-Have iPad Apps for Lawyers (Plus One More)

2012-01-24T14:16:10-05:00

After months of waffling, I finally purchased an iPad 2 last fall. I already had a laptop and an iPhone and feared that an iPad might be technology overkill but was hoping that the iPad would let me leave my laptop bag at home while on vacation. The iPad won't ever replace my laptop but it has become a vital part of my practice. Here are the nine "must-have" iPad apps for attorneys that have changed the way I take notes, prepare for hearings, take and defend depositions, bill, and travel:

1. Dropbox (Available on App Store, FREE) - Dropbox is a cloud storage service used by more than 25 million people. The Dropbox app allows me to use my iPad to access Word, Excel, PDF, and other documents that I've stored "in the cloud." The service offers 2 GB of storage for free, with additional storage available for a fee. If you use this link to sign up for the Dropbox service, you'll receive an extra 250 MB of free storage.

2. Sugarsync (Available on App Store, FREE) - Sugarsync is another cloud storage service with an iPad app. Like Dropbox, both the app and some amount of storage are free but Sugarsync provides more free storage (5 GB) than Dropbox. Like Dropbox, additional storage is available for a fee. If you use this link to sign up for the Sugarsync service, you'll receive an extra 500 MB of free storage.

I use both Dropbox and Sugarsync, so I have a total of 7 GB of free cloud storage accessible from my iPad, iPhone, and work and home computers.

3. Goodreader (Available on App Store, $4.99) - A reviewer at pcmag.com said that "Goodreader transforms your $500 iPad into the best reader, file manager, and annotator on the market." I don't know if it's the best such application on the market, but it's the most useful that I've found and it's an app that I use every day. Goodreader allows me to read, annotate, and store locally all of those Word, Excel, PDF, and other files that I've stored using Dropbox and Sugarsync. I use it to read and revise documents (with this stylus) and review my notes during trial and oral argument.

4. Note Taker HD (Available on App Store, $4.99) - Note Taker HD has some of the same annotation features as Goodreader but I use it primarily to take handwritten notes in meetings, depositions, and hearings and then email them to my assistant for inclusion in the relevant electronic or paper files. Except for hearings in those few courts whose security protocols prevent me from bringing in my iPad, I haven't used a legal pad in months.

5. Quickoffice HD Pro (Available on App Store, $19.99) - Quickoffice HD Pro is the "Office" suite for your iPad. Obviously, its word processing, spreadsheet, and presentation software does have all of the features of Microsoft Office, but they are surprisingly capable and interface seamlessly with Dropbox and Sugarsync. If pressed, I'm certain that I could use Quickoffice to draft any document I needed to but I'd probably have to ask my assistant to clean up some of the formatting before sending it out.

6. WestlawNext (Available on App Store, FREE) - WestlawNext allows me to conduct all of my computer-assisted legal research on my iPad. The app is free but, of course, the WestlawNext service is not.

7. TripIt (Available on App Store, FREE) - As I mentioned in my review of iPhone apps a couple of years ago, TripIt is a great app for keeping travel itineraries. When you receive confirmation emails from your airline and hotel, you simply email them to plans@tripit.com and the site organizes your itinerary for you, complete with relevant maps. (The TripIt website has additional details.)

8. Time Master (Available on the iPhone App Store, $9.99) - In 2009, I mentioned that I was attempting to help my clients control and predict legal costs through the use of alternative billing arrangements but that the majority of my work was still performed on the basis of the traditional billable hour. More than two years later, I'm still tied to the billable hour, though more and more of my work is done under alternative arrangements. Time Master allows me to track my time, attribute it to the appropriate client and matter, and email completed timesheets to my assistant for input into the firm's accounting system. The application also tracks my client-reimbursable expenses and could be used to create billing statements to send to clients, if I wished. (On-Core has a website explaining all of the application's features and the iPhone version of the application has been reviewed by iPhone J.D. and the Apple Blog.)

9. FlightTrack (Available on App Store, $4.99 (Regular Version) or $9.99 (Pro Version)) - The FlightTrack app allows me to import my flight information from airline confirmation emails and track those flights with push alerts for flight changes. Occasionally, I've been traveling and the FlightTrack app updated a relevant departure gate or baggage carousel before the monitors in the airport.

And, here is a "bonus" app that isn't quite a "must-have" but is very useful:

10. Black's 9th (Available on App Store, $54.99) - The Black's Law Dictionary app puts the iconic legal dictionary at your fingertips. I use the app regularly but couldn't bring myself to call it a "must-have" because it is so much more expensive than the others. However, it's pretty reasonably priced when compared to the cost of the hardcopy version.

If you have an iPad app that you've found useful in your law practice, please leave a comment letting us know.

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Photo Credit: Tsubaki Kaworu

Leveraging Private Enforcement to Improve Internet Privacy

2011-09-28T10:00:00-04:00

Our article, entitled "Putting the Genie Back in the Bottle: Leveraging Private Enforcement to Improve Internet Privacy," leads off the most recent issue of the William Mitchell Law Review. In the article, we argue that Congress should enact an omnibus Internet privacy statute which balances the needs of Internet users against those of the Internet businesses that drive the e-commerce economy while leveraging a private enforcement scheme to minimize cost and bureaucratic burden.

If you get the chance to read the article, please let us know what you think.

The Law of Blogging

2011-08-16T16:07:05-04:00

At 10 a.m. on Saturday, I'll be appearing on Blueprint for Wealth on Federal News Radio (1500AM and 820AM in the D.C. Metro Area and streaming live at www.federalnewsradio.com) to discuss the law of blogging. If you get a chance to listen, make sure to leave a comment here letting us know what you thought about the interview.

5,000 BitTorrent Users May Not Proceed Anonymously Nor Quash Subpoenas Seeking Their Identities

2011-06-16T17:26:55-04:00

Over 5,000 John Doe Defendants unsuccessfully sought to quash subpoenas issued to Internet Service Providers ("ISPs") by Plaintiff West Coast Productions to learn the identity of the Defendants known in the Complaint only by their internet protocol ("IP") addresses. West Coast Productions, Inc. v. Does 1-5829, Civ. Action No. 11-57 (CKK), 2011 WL 2292239 (D.D.C. June 10, 2011). The District Court for the District of Columbia held that the Defendants failed to show that their privacy interests outweighed the Plaintiff's need to obtain their identifying information to pursue its copyright claims.

West Coast Productions filed suit against the Defendants alleging that they illegally shared copyrighted material with each other using the BitTorrent protocol. After the Court granted West Coast's leave to issue discovery prior to the Rule 26(f) conference, it served subpoenas on various ISPs seeking the identities behind each IP address identified in the Complaint. The putative Defendants subsequently filed motions to quash the subpoenas in order to prevent the ISPs from releasing their contact information to West Coast. The motions raised several issues for the Court, the initial matter being whether the movants would be permitted to proceed anonymously in the litigation.

Acknowledging the public interest in open judicial proceedings and the "common law right of access to judicial records," the Court stated that litigants may overcome those interests "only under certain special circumstances when anonymity is necessary to protect a person from harassment, injury, ridicule, or personal embarrassment." In this case, the Defendants sought to maintain their anonymity to avoid potential liability for West Coast's copyright infringement claims. In determining whether to grant the Defendants this "'rare dispensation'of anonymity," the Court noted that it has been widely "held that the privacy interest in such identifying information is minimal and not significant enough to warrant the special dispensation of anonymous filing." Accordingly, the Court denied the Defendants' motion to proceed anonymously in the action.

In support of their motions to quash the subpoenas, the Defendants unsuccessfully asserted a variety of arguments. Several Defendants invoked their First Amendment privacy right as a barrier to divulging their contact information. The Court quickly dismissed these arguments noting that "a defendant's First Amendment privacy interests are exceedingly small where the 'speech' at issue is the alleged infringement of copyrights." Next, Defendants tried to assert their innocence by arguing that the subpoenas should be quashed because their IP addresses were used by a third party without their knowledge, possibly as a result of unsecured wireless connections. This argument similarly failed because it prematurely addressed the merits of the case and failed to provide any grounds for quashing a subpoena pursuant to Fed. R. Civ. P. 45.

Taking an alternate approach, many Defendants sought, in the alternative, dismissal of the claims set forth in the Complaint based on a lack of personal jurisdiction. Finding these arguments premature, the Court noted that as a "threshold defense," the Court cannot rule on personal jurisdiction until the Complaint has been served and a response has been filed. Because the Plaintiff had yet to name and serve the John Doe Defendants, the Court held that it was "premature to evaluate their jurisdictional defenses."

Finally, the Defendants argued that the subpoenas should be quashed because the Plaintiff improperly joined the John Doe Defendants in a single action. Applying the well-settled principles of permissive joinder, the Court found that the allegations in the Complaint arose out of the same transaction or occurrence because each of the Defendants "were sharing Plaintiff's copyrighted film with one another via the BitTorrent protocol," thus establishing the first prong of permissible joinder. The second requirement, that there be common questions or law or fact, was "easily met because the claims asserted against each John Doe Defendant are identical." Further noting that joinder of all claims would promote judicial efficiency, the Court declined to quash the subpoenas or sever the claims based on misjoinder.

Game Over for Winklevosses in Facebook Case

2011-06-08T09:02:50-04:00

The social networking saga appears to have finally come to an end in a decision by the United States Court of Appeals for the Ninth Circuit affirming the decision to enforce the Settlement Agreement between Facebook and the Winklevosses. The Facebook, Inc. v. Pacific Northwest Software, Inc., 2011WL 1843509 (C.A.9 (Cal.)). The tone of the decision was one of vexation towards the Winklevosses for the protracted litigation, despite the agreement to release all claims against Facebook. If you have watched the movie, "The Social Network," you know the genesis of the battle between Mark Zuckerberg and the Winklevosses. Cameron Winklevoss, Tyler Winklevoss and Divya Narendra (the Winklevosses) claimed that Mark Zuckerberg poached the idea for Facebook from them. The Winklevosses sued Facebook and Zuckerberg in Massachusetts and Facebook countersued them and their competing social network site, ConnectU, in California. The District Court in California ultimately ordered the ConnectU, Facebook and the Winklevosses to mediate their dispute.

The parties were able to reach a Settlement Agreement, in which the Winklevosses agreed to give upConnectU in exchange for cash and a part of Facebook. The agreement also stipulated that it would end all disputes between the parties. The settlement unraveled as the parties attempted to finalize Facebook's purchase of ConnectU. Facebook filed a motion with the court seeking to enforce the agreement. ConnectU argued that the agreement was unenforceable because it lacked material terms and had been procured by fraud. The instant action is an appeal from the District Court's decision holding that the agreement was enforceable and ordering the Winklevosses to transfer all ConnectU shares to Facebook.

On appeal, the Winklevosses argued that the specific terms of the acquisition were material to the agreement and that the absence of those terms renders it unenforceable. The agreement included a clause that stated, "Facebook will determine the form and documentation of the acquisition of ConnectU shares..." The court held that the parties clearly meant to bind themselves, "even though everyone understood that some material aspects of the deal would be prepared later." The court also admonished the parties and said that the deal was drawn up so that "both sides would stop fighting and get on with their lives."

The Winklevosses also argued, without success, that Facebook misled them into believing that its shares were worth four times as much as the internal valuation ultimately revealed. The Winklevosses claimed that had they been aware of this valuation at the time of mediation, they never would have agreed to the deal. They sought rescission of the agreement based upon various sections of the Securities Exchange Act of 1934. The court rejected the Winklevosses argument because they are a sophisticated party with access to discovery through the adversarial process. The court held that it will enforce an agreement between adversaries in roughly equivalent bargaining positions, who have the opportunity to "use discovery to ferret out a great deal of information before even commencing settlement negotiations."

Lastly, the court rejected the Winklevosses' argument that the release of claims did not foreclose their challenge to the agreement because the Exchange Act precludes release of unkown securities fraud claims arising out of negotiations to settle a pending lawsuit. The court cites to a Ninth Circuit case that held that "parties possessing roughly equivalent bargaining strength could release all claims arising out of the transaction that gave rise to the litigation, even though they hadn't yet discovered some of the securities claims when they signed the settlement." Petro-Ventures, Inc. v. Takessian, 967 F.2d 1337, 1342 (9th Cir.1992).

In its closing, the court made known its frustration with this litigation. The court wrote, "[t]he Winklevosses are not the first parties bested by a competitor who then seek to gain through litigation what they were unable to achieve in the marketplace . . . [a]t some point, litigation must come to an end. That point has now been reached."