Dutch Politicians Question Legality LinkedIn Social Advertising

Networking site LinkedIn says it will alter an advertising technique, following criticism and questions in the Netherlands about whether it violated privacy laws.

LinkedIn has been testing "social ads" since June. Some attach users' photos to ads for services they have shown an interest in, then broadcast them to other members of their networks.

LinkedIn's privacy policy reads: "If you share your interactions on LinkedIn, for example, when you recommend a product, follow a company, establish or update your profile, join a Group, etc., LinkedIn may use these actions to create social ads for your network on LinkedIn using your profile photo and name."

Dutch lawmaker Jeroen Recourt asked the justice minister this week to investigate whether it is legal in the Netherlands.

The company said on its website Friday that reaction from users was "loud and clear" and it will stop using user photos in ads.

The Dutch are the heaviest users of LinkedIn per capita, though there are more United States users in absolute terms.

Judge Rejects Twitter’s Attempt To Move Patent Lawsuit To Californian Court

Internet companies such as Twitter, Google (NASDAQ:GOOG) and Facebook are hit with patent suits regularly, often in inconvenient venues. They would therefore want those lawsuits to be heard in the relatively tech-friendly courthouses of Northern California.

However, it looks like that is not going to happen anytime soon. Twitter raised a novel argument. It asked to move the most recent patent lawsuit against it to move from Virginia to San Francisco. Titter claimed that the plaintiff in this case, Dinesh Agarwal, is a Twitter user himself. He therefore agreed to Twitter’s terms of service. Those terms include a clause that states that all lawsuits must be brought against the Company in San Francisco.

US District Judge Henry Morgan however ruled against Twitter. He concluded that his own court in Alexandria (VA) is the appropriate place to hear the lawsuit. He stated that Twitter’s contract clause referring o where lawsuits must be heard, does not necessarily apply to patent suits.

The judge also did not want to create a precedent. Allowing Twitter to transfer its court case would enable other social networking companies to start similar disputes. This would potentially foster satellite litigation in every patent case involving a social networking market participant.

Twitter move was smart. If the judge had accepted its argument, companies such as Twitter or Facebook would be in a strong position to move their patent disputes to their “home court.”

In this case, Mr. Agarwal is suing in the district he has been living in for the last 25 years. He is therefore not seeking a location foreign to both parties (like East Texas). Interesting enough, Agarwal’s twitter account shows that he has zero tweets. His profile states that he is a patent lawyer as well as an aspiring screenwriter. Agarwal signed up for Twitter in January 2010 mainly for the purpose of determining whether the service infringes his patent. Later that year, he founded VS Technologies, a shell company that hold the disputed patent and he then pursued lawsuit against Twitter.

Agarwal’s patent is based on a “method and system for creating an interactive virtual community of famous people”. As a patent lawyer, Agarwal handled all the paperwork for this patent application himself. He used patents to demand royalty payments from the tech industry. This increasingly common situation is called “patent trolling”

Federal court records show that Twitter has been sued for patent infringement at least four times. In addition to this lawsuit brought by VS Technologies, Twitter is facing an ongoing patent lawsuit filed by Cooper Notification in 2009.

Twitter settled a patent lawsuit brought by TechRadium in 2009. A fourth lawsuit, filed in 2010 by lawyer-controlled patent-holding company Stragent LLC, the lawsuit was dropped without explanation.

Dutch House of Representatives Vote for Net Neutrality Law

The Dutch House of Representatives approved a tough net neutrality bill that will become law. It will prevent mobile phone operators to charge extra for using services such as Skype and WhatsApp. Operators are also forbidden to block or slow down traffic of such services.

Telecom companies KPN (AMS:KPN), Vodafone (NASDAQ:VOD), and T-Mobile (ETR:DTE) lobbied against the bill. Vodafone stated that the law will "lead to a large increase in prices for mobile internet for a large group of consumers". KPN said that it regretted "that parliament didn't take more time for this legislation".

Chile is the only other country in the world to have passed a net neutrality law; theirs came into force in May this year.

The Bill (translated into English) forbids communications providers from hindering or delaying any services or applications on the internet, except where doing so is necessary to stop congestion or block spam, or to otherwise maintain the integrity and security of the network.

The law would also force operators to provide a minimum level of quality for their internet services. They are, however, allowed to offer different tiers of bandwidth at varying prices.

The Dutch House of Representatives passed two more laws: one law would stop operators from employing deep-packet inspection (DPI) techniques; the other forbids the disconnection of internet users for any reason other than fraud or failure to pay their bills.

(Image courtesy of Kurt Griffith ©2004 KG/FRE)

Federal Lawsuit between Cybermoguls over Control of OMGFacts Twitter Account


Twitter is Serious Business – just ask Cybermoguls 17-year-old Adorian Deck and by 24-year-old Emerson Spartz.

In 2009, Deck started the Twitter account OMGFacts where he tweeted trivial facts. He gained 300,000 followers within one year. Last year, Spartz approached Deck for a business partnership.

Spartz is the owner of Spartzinc, a network of websites that receives over 6 million unique monthly visitors and has more than 3 million followers on Facebook and Twitter. His portfolio include Mugglenet, one of the most popular Harry Potter fansites, the Twitter account Givesmehope and the high school dating site Flirtlocker.

Deck and Spartz signed a contract that gave Spartz all the rights to the OMGFacts brand and content. Spartz was able to gain over 1.8 million followers for OMGFacts. He also launched an OMWFacts website and YouTube account.

Up till now, Deck only made $100 on the deal. He is striking back at Spartz with a lawsuit, stating that the contract is "predatory" solely aimed to get full control of the account. Deck’s attorney, Glenn Peter, claims that the contract was a ploy to dupe Deck into transferring his rights to the OMGFacts trademark without realizing what he was doing.

Under California law, individuals can disavow any contracts signed when they were minors. But Spartz counters that Deck’s mother co-signed the contract as his legal guardian, and that Deck is trying to exploit SpartzInc for financial gain.

“Among other things, this agreement was designed to protect against Mr. Deck walking away with what we created, which is exactly what he’s trying to do,” Spartz said.

The OMGFacts lawsuit also addresses the question of who legally owns a tweet. How does copyright apply to a tweet?

According to Eric Goldman, a professor of Internet and intellectual property law at Santa Clara Law School: “Because tweets are so short, it can be hard to compose them in a way that earns them full copyright protection. Copyright protects the ways in which we express ourselves; it doesn’t protect the underlying facts or ideas we are expressing.”

To complicate copyright matters even more, Twitter includes a button to “retweet” or repost another user’s tweet, which implies a right to reuse someone else’s material. Collection of tweets or brand identities are also in legal limbo.

Top tweeters/brands like Kim Kardashian (7.4 million followers) can command $10,000 per tweet to endorse a product, and when rapper 50 Cent (4.5 million followers) posted praise of a penny stock in which he was an investor in January 2011, shares of H & H Imports Inc. skyrocketed.

The law is trying to catch up. But as Goldman pointed out: “We’ve had 600 years to develop the rules on books; we’ve had less than five years to develop how those rules apply to tweets.”

Microsoft and Google team up to fight the GeoTag Patent Troll

Microsoft (MSFT) and Google (GOOG) have joined forces to defeat patent troll GeoTag, which has sued hundreds of companies for allegedly infringing its patent.

GeoTag claims that nearly 400 companies are using Bing maps and Google Maps – all based on its patented technology. According to GeoTag, its patent covers using mapping services to create store locators on websites.

According to GeoTag, its patented GeoTag geo-location technology is a spatial information management technology that makes possible a range of location-enabled online applications. GeoTag further claims that these online applications can use its technology to interactively and dynamically retrieve data from a database and associate retrieved data with a location.

GeoTag has been suing customers of Microsoft and Google including Boeing and Pizza Hut.

Microsoft and Google have joined forces and are going on the offensive. They asked a Texas court to rule that they have not infringed GeoTag's patent. They also asked the court to stop GeoTag from patent trolling and to order GeoTag to compensate Microsoft and Google for incurred costs. Microsoft and Google state that the patent concerned (U.S. Patent No. 5,930,474) is invalid for a number of reasons.

The patent was “invented” in the mid-1990s by Peter D. Dunworth, John W. Veenstra and Joan Nagelkirck. The patent was assigned to Z Land LLC. After unsuccessful attempts to commercialize the patent, the patent rights were assigned to Geomas Ltd.,an intellectual property holding company.

Around 2001, Jason W. Galanis, a U.S. entrepreneur, began investing in Geomas which apparently provided the capital to bring a patent infringement lawsuit in November 2006. In that lawsuit, Verizon Communications, Inc. (NYSE:VZ) and Idearc Information Services, Inc. were accused of infringement of the patent. Mr. Galanis arranged $20 million in institutional financing to support the lawsuit which was filed in the U.S. District Court for the Eastern District of Texas. That lawsuit was settled in December 2008; the terms of the settlement remain confidential.

The patent was then acquired by Ubixo Ltd. That company formed Ubixo, Inc. and assigned the patent and associated rights to it. In July 12, 2010, Ubixo, Inc. was spun off as an independent corporation and reincorporated in Delaware under the name GeoTag, Inc. GeoTag has therefore only held this one patent for two years, despite its claims that it makes a living licensing patents.

At this moment, GeoTag has been suing 423 companies for alleged patent infringement.

Let’s hope that the courts stop this kind of patent trolling soon.

(Image courtesy of Stu's Views )

Google’s popular homepage doodles got patent protection

It all started 1998 when Sergey Brin and Larry Page tweaked the Google homepage logo to indicate their attendance at the Burning Man festival. Google (GOOG) co-founder Brin filed the patent application on April 30, 2001.

Google's patent application reads: "a system provides a periodically changing story line and/or a special event company logo to entice users to access a web page. For the story line, the system may receive objects that tell a story according to the story line and successively provide the objects on the web page for predetermined or random amounts of time. For the special event company logo, the system may modify a standard company logo for a special event to create a special event logo, associate one or more search terms with the special event logo, and upload the special event logo to the web page. The system may then receive a user selection of the special event logo and provide search results relating to the special event."

The granted patent (Patent 7,912,915) is for "systems and methods for enticing users to access a Web site." But not everyone is pleased.

Business Insider's Matt Rosoff commented that this patent is an abomination of the patent system. He argued that: "The patent system was originally created to foster innovation by protecting small inventors from having their ideas ripped off by big companies. But increasingly, big companies are using patents for exactly the opposite reason--to stop competitors from innovating."

TechDirt's Mike Masnick uses it to show how mad the system has gotten. He hopes that “Google plans to use this patent as an example of...just how ridiculous the patent system is becoming".

In the mean time, just enjoy the doodles...

Jou ma se … advocate tells judge in South African Court

Advocate Nehemiah Ballem swore "Jou ma se p**s, man, f**k you!" at Judge Lee Bozalek and then stormed out of the Western Cape High Court in South Africa. The incident happened during the case of the State versus Godfrey Manxilane. It looks like Ballem was a public defender in this case and had a better paying case at the same time....

The Cape Bar Council has requested that Ballem refrain from practising law pending the outcome of an investigation into the incident.

Folowing is the transcript, translated from Afrikaans, of the proceedings.

Judge: “Now first of all, Mr Ballem, where were you this morning?”

Ballem: “My lord, I just want to know if my clerk gave you a message?”

Judge: “Yes, we got a confused message … (about) car problems you had.”

Ballem: “Exactly. Now do you want to hear it again?”

Judge: “Excuse me?”

Ballem: “Do you want to hear the excuse again?”

Judge: “Yes.”

Ballem: “My car broke down.”

Judge: “Now why did you realise that around 10am when court proceedings were about to begin?”

Ballem: “We had to wait for the AA.”

Judge: “Yes?”

Ballem: “To tow the car away.”

Judge: “But you, no doubt, had a cellphone?”

Ballem: “I didn’t know about the case. I didn’t have my diary (sakboek) with me.”

Judge: “Your bag (sakkie) wasn’t with you?”

Ballem: “My diary wasn’t with me.”

Judge: “Yes. Could you not have phoned the High Court half an hour, an hour, before the time?”

Ballem: “Judge, how long must we hassle with this?”

Judge: “Excuse me?”

Ballem: “How long must we hassle with this? I’ve now gone to some trouble to be here.”

Judge: “Mr Ballem, perhaps you don’t realise, your first duty, if you have to appear in the High Court, is to be here, and you are not doing us a favour by being here, despite your problems. Why are you turning your face away from me while I’m speaking?”

Ballem: “Well, I asked my secretary to pass on a message and I assume she must have done so.”

Judge: “Yes, but then we got …” (interrupted)

Ballem: “Now do you want the message from me again?”

Judge: “Then we got another strange message: Could the case be postponed until Monday, a telephonic request for a postponement?”

Ballem: “Exactly. Then I got the message that you were prepared to wait for me, and now I am here.”

Judge: “You were not involved in another case this morning, were you?”

Ballem: “I was not involved, Judge. I am here now.” (He slams his hand on the desk.)

Judge: “Sir (meneer), your attitude, you must...” (interrupted)

Ballem: “But then you must not also come ...” (interrupted)

Judge: “You must be careful about your attitude, Mr Ballem, in front of the court.”

Ballem: “But then you must also not come with an attitude.”

Judge: “Excuse me?”

Ballem: “I said then you must not come with an attitude, because we are both adults, I am not your child.”

Judge: “Mr Ballem, I must tell you ...” (interrupted)

Ballem: “I said I am not your child.”

Judge: “I must warn you …” (interrupted)

Ballem: “You do exactly what you want. Do what you want.”

Judge: “You are sailing very close to the wind.”

Ballem: “Jou ma se p**s, man! F**k you!” (Ballem leaves the courtroom).

Judge: “Ms van Rooyen?”

Van Rooyen: “I don’t know what to say, my lord, except to suggest we remove the matter from the roll for today, and there we can ...” (interrupted)

Judge: “I think the matter should rather be postponed sine die (adjourned indefinitely).”

Van Rooyen: “I agree … We’ll get other legal representation and then ...” (interrupted)

Judge: “How will that be arranged?”

Van Rooyen: “My lord, I will take the case back to advocate Van der Merwe. He will arrange that someone else takes over the case … the documents are ready in any case.”

Judge: “I think it should remain with this court and I think the most appropriate order is that it be postponed indefinitely … Right, this case is postponed sine die, and Snellers (Legal Transcriptions) are requested to type all the proceedings that took place.”

(Image courtesy of Leon Muller)

Julian Assange applied for a trademark - Julian Assange™

WikiLeaks’ Julian Assange wants to register his name as a trademark. He has filed his application at the UK intellectual property office.

The application for the trademark Julian Assange™ lists the following goods or services: Public speaking services; news reporter services; journalism; publication of texts other than publicity texts; education services; entertainment services.

Interesting enough, Assange lists the UK as his residence country. Well, if Swedish prosecutors have their way, the Australian-born WikiLeaker will have to change that to Sweden. The Nordic country has requested his extradition in order to interrogate him with regard to allegations of sexual misconduct. British courts have already granted the Swedish request. Assange is appealing the ruling at London's High Court.

The application for the entertainment services trademark has been labeled "bizarre" by David Allen Green of the London law firm Preiskel and Co. he said: ‘It's a bizarre thing for someone associated with freedom of information to do."

Mark Stephens, Assange’s lawyer, emphasized that the application was made in a “not-for-profit” category, stating: "It's not about restricting free speech. It's not that he's out there trying to make huge amounts of money. It's about protecting himself from being associated with things he doesn't know about or approve of."

However, it is highly unlikely somebody else would pretend to be Julian Assange. Only then would protecting Julian Assange™ make sense.

Provided that nobody contests Assange™'s trademark application, it could be granted as soon as May 4, 2011.

(Image courtesy of by Marian Avramescu)

Judge in the Netherlands halts import of PlayStations

The Japanese electronics giant Sony announced that a large shipment of PlayStations 3 (PS3) has been stopped at the Dutch Port of Rotterdam due to an injunction order of the Dutch Court of The Hague. According to a spokesperson of Sony, the Dutch court has halted a shipment of ten thousands of these products since February. The reason is a complaint from the South Korean company LG Electronics. The spokesperson refused to go into details.

The Netherlands are a major European import hub for Sony, serving as a gateway to Europe. A spokesperson of LG Electronics stated that there is currently a case against Sony at the International Trade Commission in the US. It involves the patent on a technical part (the Blu-ray technology) of the PlayStation 3. The spokesperson went on to state that he did not have any information about the case against Sony in the Netherlands. He went on to emphasize that it is LG’s policy not to comment on any current court cases.

The injunction is by law for 10 days. The current stock of Sony’s PlayStation 3 will last for several weeks. Sony will quite likely opt for other ways to export to Europe.

Should LG be successful with its claim then Sony would be forced to pay LG royalties fo each PlayStation 3 console sold. There are currently around 50 million Play Stations sold containing Blu-ray technology.

Wraking van rechters – een stijgende trend

Een recent artikel in Trema toont aan dat het aantal wrakingsverzoeken tussen 2005 en 2009 met ruim 80 procent is gestegen – van 159 naar 288.

Slechts 10 procent werd toegewezen; in het merendeel de zaken zetten de behandelende rechters het proces voort.

In oktober 2010 diende de advocaat van Geert Wilders met succes een wrakingsverzoek in om de rechters in de zaak Wilders te vervangen.
Philip Langbroek, hoogleraar rechtspleging en rechterlijke organisatie bij het Montaigne Centrum van de Universiteit Utrecht ziet een stijgende tendens van het aantal wrakingsverzoeken. Hij stelt dan ook voor om de behandeling van de wrakingsverzoeken anders te organiseren, aangezien tot nu toe rechters van dezelfde rechtbank het wrakingsverzoek behandelen. Dit kan volgens Langbroek “de indruk wekken van slagers die hun eigen vlees keuren”.

De rechterlijke macht is bezorgd, vooral omdat het gezag van de rechter is afgenomen. Dit is mede het gevlog van gerechtelijke dwalingen zoals de zaak van Lucia de Berk.Andere redenen zijn het veel mondiger worden van de burger en de vereenzelviging van advocaten met hun cliënten.

De meest voorkomende redenen om te wraken zijn:
- Familie of nadere persoonlijke banden tussen rechter en een partij
- nevenfuncties
- rechterlijke uitlatingen tijdens het proces die als partijdig worden ervaren
- een van de procespartijen heeft het gevoel niet genoeg gehoord te worden
- afwijzen door de rechter van een verzoek om bijvoorbeeld een getuige te horen
- het winnen van tijd door de advocaat (vertragingstactiek)

De advocatuur meent dat het vaak moeilijk is de (schijn van) partijdigheid te bewijzen, terwijl rechters het volgens Floris Bannier, Hoogleraar Advocatuur een rechtstreekse aanslag op hun persoonlijke integriteit zien.

De beste optie is om wrakingsverzoeken snel en efficient door rechters van buitenaf te laten behandelen.

(Bron afbeelding: Hajo www.studiohajo.nl)

Britain wants to change its 'embarrassing' Libel Law

According to UK Deputy Prime Minister Nick Clegg, Britain’s libel laws have become an international embarrassment. In most countries, the plaintiff must prove that a published article was both false and written maliciously. Not so in the UK, where the defendant must demonstrate that what was published was true.

As a result, the UK has become a haven for foreign corporations and celebrities, creating “libel tourism”. They opt to sue in British courts, even when the case has only a very weak connection to the U.K. – with success. In 2006, American actress Kate Hudson successfully sued the US-based National Enquirer for libel in London, based on the fact that the Enquirer also has a British edition. Saudi businessman Shaikh Khalid Bin Mahfouz successfully sued an American academic over a U.S.-published book about the financing of terrorism. The book had sold a grand total of 23 copies in the UK.

Clegg is not happy about this. In a speech on civil liberties, he said that the existing laws “have a chilling effect on journalism and scientific debate. It is simply not right when academics and journalists are effectively bullied into silence by the prospect of costly legal battles with wealthy individuals and big businesses. Nor should foreign claimants be able to exploit these laws, bringing cases against foreign defendants here to our courts - even if the connection with England is tenuous. It is a farce - and an international embarrassment - that the American Congress has felt it necessary to legislate to protect their citizens from our libel laws."

He went on to publicly proclaim that the system has become "a farce and an international embarrassment." Glegg is working on a new draft defamation law that would “introduce a new defense of speaking in the public interest, and clarify the existing libel defenses to stop claimants suing on what are essentially trivial grounds."

Users of social networks are not forgotten - the law would be updated to give more protection to people who write on the Internet. Good news for bloggers, Facebookworms, and Twitterati.

Representatives of the Libel Reform Campaign, which includes Index on Censorship, Sense about Science and English PEN, said they welcomed the announcement.

"The deputy prime minister has not only acknowledged the chilling effect of our defamation laws, but taken our demands for reform fully on board," John Kampfner, chief executive of Index on Censorship said in a release. "We’re delighted that that in tone and detail the draft bill will go a long way to tackling the chill on free speech emanating from English courts."

The government's draft bill will be opened up to consultation in the coming months.The government has also published a consultation paper on proposals by Lord Justice Jackson to reform civil litigation funding in an attempt to "make costs more proportionate, more fair", Clegg stated.

(Image courtesy of the Liberal Democrat Party on Flickr. Some rights reserved)

A weighty argument

A Dutch lawyer is attempting to get his client out of jail with an unusual argument: he's too tall and fat for his cell.

"He is a giant of a man, there's no way you cannot realize that as soon as you see him," said lawyer Bas Martens, representing the “heavyweight” Angelo M. (Martens’ client) is 2.07 meters (about 6 feet 10 inches) tall and weighs 230 kilograms (500 pounds). He average prison cell is 10 square meter (12 sq. yard).

The prisoner began serving an 18-month sentence for financial fraud in September 2010. Martens sought a court order for Angelo to serve out his sentence under electronically monitored house arrest. He claimed that the prison facilities are too small and so painful that its conditions violate European human rights law. Especially Angelo's bed and the low toilet in his cell would violate his human rights.

"He's not trying to escape his punishment: he suffers pain every day," argued Martens on behalf of his client.

Representatives of the prison in Krimpen aan de IJssel, in the southwest of the Netherlands close to the city of Rotterdam, could not immediately comment. They stated in court that the prison adheres to national standards. Furthermore, all efforts were made to accommodate Mr. Angelo's needs.

However, Martens argued that measures such as extending his bed with a piece of wood and giving him an extra mattress weren't good enough.

According to court spokeswoman Paula Keuning the judges' written ruling is due on Feb. 8, 2011. Then we will learn how the Dutch court weighs this heavy topic.

Is "pay-as-you-go" fee arrangement an innovative way for small law firms to provide legal representation?

Law is business. Small law firms need to be creative and flexible to survive. Billing arrangements must work for lawyers and their clients.

One option is to pay an attorney on an a la carte basis. Clients only pay for the specific legal services that they can afford. This way, clients that can't afford standard legal fees of nearly $300 per hour, will still get legal representation.

Tarascio & Del Vecchio in Mesa, Arizona, uses this pay-as-you-go business model. Clients don't have to pay a retainer fee and are charged between $99 and $129 hourly for out-of-court services. The firm is still figuring out how to make the new model work. Since it does not have a shortage of clients, the law partners are confident that the approach will catch on.

The firm labeled their business model “limited-scope representation”.

"I've worked in various family law firms, and the traditional model didn't work. It didn't work for me or my clients," law firm partner Tarascio said. "Basically, anyone who is not wealthy can't afford it ... I figured, let's lower the rate, and I'll do pay as you go. I began customizing what I was doing for clients."

The American Bar Association and Arizona Supreme Court support limited-scope as an option for those who cannot afford full legal representation. "(A client may) need help with a particular problem, but just need someone to consult with - how to handle a particular item, like an explanation on what a motion for summary judgment means and how they should respond to it - and don't necessarily need total representation," said Patricia Sallen, director of special services and ethics for the State Bar of Arizona. However, she warns that limited-scope representation has to be reasonable.

A new trend? Or a passing fad? You decide....

Leading IPO Attorneys Unanimously Think China Will Be a Major Contributor t0 2011 IPO Issuance

KCSA Strategic Communications conducted a survey and found that the United States is losing its position as the global leader for IPOs.

KCSA conducted an in-depth survey of approximately 50 securities attorneys whose firms advised on 75 percent of the initial public offerings listed on major U.S. exchanges in 2010. According to the results of the independent survey, 71 percent of securities attorneys think the U.S. is losing its share of global IPOs.

"The simple fact is that as the U.S. regulatory environment has become more restrictive, other global exchanges have become more sophisticated and liquid and therefore have gained market share," said Joshua Ford Bonnie, Partner, Simpson Thacher & Bartlett. "Given the difficulties of listing in the U.S., more foreign companies are choosing to list on their home exchange."

"This data confirms that as transaction activity continues to erase geographic boundaries, it is imperative that companies take into account the various audiences with whom they communicate," noted Jeff Corbin, CEO of KCSA Strategic Communications. “Regardless of where investors are located, here in the U.S. or overseas, clear communications transcends language barriers and helps companies achieve a fair valuation."

Despite the U.S.'s declining share of global IPOs, the survey respondents unanimously agree that China will be a strong driver of U.S.-based IPO issuance in 2011.

“We expect that Chinese companies will, at least in the near-term, continue to list on U.S. exchanges due to the more clearly defined listing rules and regulations and the perceived stability and prestige of the U.S. markets," commented Colin Diamond, Partner, White & Case.

In addition, the attorneys surveyed expect increased IPO issuance from other foreign countries.

When asked which foreign countries will drive global IPO issuance, 37 percent of respondents said Brazil and 30 percent said India.

Private Equity backed companies are also expected to dominate the IPO landscape in 2011, according to 74 percent of attorneys surveyed.

All in all, sentiment for next year's IPO market is highly positive, with 77 percent of those surveyed anticipating a stronger IPO market in 2011.

"Over the course of 2010, the IPO market changed significantly. In 2011, we will continue the breathtaking pace of 2010's fourth quarter," commented Richard Truesdell, Partner, Davis Polk & Wardwell. "This is likely driven by the overall improvement in the economy, stabilization of the capital markets and pent up demand for equity offerings."

While the strict regulatory regimes of the early 2000s that led to Sarbanes-Oxley may have had a profound impact on pre-IPO companies, 81 percent of those surveyed think that the Dodd-Frank bill will have no impact on IPO issuance in 2011.

"There is a significant number of companies that are preparing to go public, should go public and most likely will go public in the U.S. markets regardless of increased regulatory requirements," said Michael Littenberg, Partner, Schulte Roth & Zabel. "These are in many cases high quality companies that are at the point in their life cycle where being public makes sense."

Other key findings from the survey include:
a. Better Valuations: 11%
b. Good Market Performance: 18%
c. Increased Demand: 29%
d. Investor Confidence: 20%
e. Strong Pipeline: 22%
What industries are driving IPO issuance?
a. Consumer/Retail: 11%
b. Financial Services: 7%
c. Green Tech: 6%
d. Internet: 10%
e. Life Sciences: 20%
f. Natural Resources: 10%
g. Technology: 28%
h. Other: 9%

(Image curtesey of Swadron)

Tweeting in the courtroom? Yes we can!

The Lord Chief Justice in the UK allows journalists to report some court proceedings by using Twitter, texting and email. He made it clear though that it would not happen if it could influence witnesses.

Media organizations and journalists can now apply for permission to use social media on a case-by-case basis. Non-journalists could still be barred in order to ensure the "proper administration of justice". This would prevent distractions in court and limit the potential for interference with courts' own recording equipment. The guidance applies only to courts in England and Wales.
For now, anyone who wants to tweet in court needs to get the judge’s permission. In criminal trials tweeting will quite likely be forbidden when there is a risk that witnesses who are out of court would be able to find out what is happening inside.

The Lord Chief Justice explained: "The judge has an overriding responsibility to ensure that proceedings are conducted consistently with the proper administration of justice, and so as to avoid any improper interference with its processes. There is no statutory prohibition on the use of live text-based communications in open court. But before such use is permitted, the court must be satisfied that its use does not pose a danger of interference to the proper administration of justice in the individual case. Subject to this consideration, the use of an unobtrusive, handheld, virtually silent piece of modern equipment for the purposes of simultaneous reporting of proceedings to the outside world as they unfold in court is generally unlikely to interfere with the proper administration of justice."

Interesting enough, the Twitter guidance comes days after WikiLeaks Assange's court hearing. Mr Justice Ouseley ruled during that hearing that supporters and journalists should tweet about was happening in real time. At an earlier bail hearing, district judge Howard Riddle did allow tweeting from Westminster Magistrates Court, saying journalists could send messages if they were discreet and did not interfere with the judicial process.

If the same policy would apply to let video cameras in court, justice would be seen on TV, online and on mobiles. Is this the way to go?

On the other side of the Pond, U.S. District Judge Thomas J. Marten allowed in 2009 a reporter to Twitter court proceedings in a trial of six Crips gang defendants taking place in his Wichita, Kansas courtroom.

"The more we can do to open the process to the public, the greater the public understanding," the judge said when asked about lawyers' concerns that jurors might be influenced by the tweets.

So where will it end? Does tweeting serve a purpose in court room?

To quote Andrew Cohen: “The difference between a reporter tweeting in the courtroom and a reporter doing the same during the breaks and phoning it in is not that great."

Ita Est

(Image courtesy of MorganPR)

Juridisch advies betreffende de aangekondigde KPN verkeerstarieven

Vele bedrijven hebben onlangs een brief ontvangen waarin KPN een vereenvoudiging van haar verkeerstarieven vaste telefonie heeft geïntroduceerd.

Voordat een bedrijf zich verbindt met een meerjarig contract, is het van belang te weten dat bestaande kortingen van een CPS provider vervallen bij het aangaan van een 2 en 3-jarig KPN contract.

Verder kan een bedrijf ook met aanzienlijk hogere belkosten geconfronteerd worden.
Afhankelijk van belgedrag kunnen de kosten met 5 tot 10% toenemen.

Indien er niet tijdig gereageerd wordt op het KPN aanbod in de brief, gaat automatisch een geldig jaarcontract van start.

Wat dit inhoudt?

• Starttarieven gaan omhoog met circa 39%;
  
• Verhoging van abonnementskosten, inclusief tarieven voor nummerblokken en doorkiesfaciliteiten;
  
• Het nieuwe contract gaat 1 januari 2011 in, en wordt jaarlijks automatisch verlengd;
  
• De betalingstermijn wordt teruggebracht van 21 naar 14 kalenderdagen.

Als juriste raad ik u aan om de tijd te nemen om verschillende opties te overwegen voordat u zich vastlegt.

Indien u de antwoordkaart voor 31 december retourneert met “Ik wens geen jaarcontract en ontvang geen kortingen op al mijn telefoongesprekken” heeft u ook in het nieuwe jaar uitgebreid de tijd om te berekenen welke aanbieder voor u het meest gunstig is.

De beste wensen voor een succesvol 2011

Google launched its improved copyright plan

Google (GOOG) pledged to change its policy and to act on copyright takedown requests within 24 hours. According to the Digital Millennium Copyright Act (DMCA), content hosting sites are generally not held responsible for infringing material on their sites providing they immediately follow up on takedown requests.

"As the Web has grown, we have seen a growing number of issues relating to infringing content. We respond expeditiously to requests to remove such content from our services, and have been improving our procedures over time," Kent Walker, Google general counsel, wrote in a blog post. "But as the Web grows, and the number of requests grows with it, we are working to develop new ways to better address the underlying problem."

Starting with Blogger and Web search, Google announced that it will build tools in Blogger and Google search to make it easier to submit DMCA takedown requests.
Walker promised that Google will reduce its average response time to 24 hours or less for copyright owners who use the tools responsibly. Google will also improve its "counter notice" tools for people who think their content was wrongly removed.

Google will also improve its AdSense anti-piracy review. Apart from banning AdSense on websites with pirated content, Google will also identify violations.

Google is also looking for ways to make authorized content (e.g., music clips) easier to index and to search for, which is applauded by the Recording Industry Association of American (RIAA). Mitch Bainwol, chairman and CEO of the RIAA, wrote in a blog post. "We look forward to working with Google on all the steps necessary to effectively combat infringement."

Geoff Taylor, the chief executive of music industry body the BPI, also welcomed the new Google policy. However, he noted that further to eliminate digital piracy should be taken. He stated that Google search overwhelmingly directs consumers looking for music and other digital entertainment to illegal sites. He urges Google to work together with the BPI to find a "technical solution that points music fans to sites that reward artists and everyone involved in creating music".

(Image courtesy of Google Public Policy Blog)

How The Use of Social Media Can lead to Mistrials

Do AV Software providers have an anti-trust case against Microsoft?

Many anti-virus software companies are upset with Microsoft (MSFT). The Redmond-based behemoth recently distributed AV software through a Windows' update service. Starting 11/1, Microsoft began offering Security Essentials to PCs running Windows XP, Vista and Windows 7 that lacked antivirus software.

Trend Micro questioned Microsoft's decision to offer its Windows users free Security Essentials software through the operating system's patching and program update services. Trend Micro’s Carol Carpenter commented: "We're concerned that Microsoft may be using its OS-based market leverage to box out other choices. If that were to happen, it would not be good for consumers or the industry. "Commercializing Windows Update to distribute other software applications raises significant questions about unfair competition."

Panda Security was also quite verbal about Microsoft’s AV download. Luis Corrons, the director of Panda's research lab, lamented: "If [Microsoft's] objective is truly to protect users from malware, then why doesn't Microsoft allow [Security Essentials] to install in pirated copies of Windows? He went on to claim: "Microsoft should make a serious development effort to secure the OS from the ground up, and not limit the security tools currently available to its users." Sour grapes, anyone?

From a legal standpoint, does Trend Micro cum suis have a case against Microsoft? According to Hillard Sterling, a partner with the Chicago-based law firm of Freeborn & Peters, not really. "It would be a long shot at best. It would be difficult if not impossible to show any anticompetitive impact." In other words, they don’t have a (legal) leg to stand on.

Since the Microsoft download is optional, it does not form any barrier to competitors. As we all know (free) security products are available from a multitude of channels e.g., from websites offering free downloads, such as AVG and tucows or from media websites such as CNET.

Furthermore, Microsoft does not prevent other companies from getting their products onto PCs, nor does it prevent installation of other providers’ security software on new PCs.

As Sterling points out, having a competitive leverage is a far cry form posing an antitrust violation. As he quite correctly emphasized: “Antitrust laws are designed to protect consumers, not competitors." The Obama administration has been cautious about antitrust litigation, especially in the technology sector.

Also in the EU things are not that simple for the AV companies. As Microsoft knows too well, the European Community has aggressive antitrust regulators, but does not hinder competition.

The conclusion is that AV providers have to live with the uncomfortable truth that they cannot fight Microsoft on antitrust issue. May be providing a superior product is the way for AV providers to go?

Lawyer sues Yellowbook for misspelling “justice”

Manuel de Castro, a Sioux Falls lawyer, is suing Yellowbook for a mistake in his advertisement in its phone book. De Castro ordered a half-page color ad with the headline “The Trial Lawyer Fighting For Your Justice”.

The lawyer was not amused when he found out that the published ad read "The Trial Lawyer Fighting For Your Justics". Furthermore, a hyperlink appearing under his name directs users to a defunct website.

Although Yellowbook never showed a copy of the ad before going into print, and also took responsibility for the mistake, they still want De Castro to pay in full. When he didn’t pay, the company threatened to take him to a collection agency.

To me, this doesn’t make any sense, since the amount ($6,780) is small for a company such as Yellowbooks, which is part of the Yellgroup. It also harms their brand, and therefore their business. Last but not least, it’s not wise to cross swords with lawyers – they thrive on lawsuits.

Mr. de Castro promptly sued Yellowbook, asking a jury to award him $6,780 for the ad, lawyer fees, and damages resulting from "humiliation and loss of business." As he explained: “All things being equal, when someone looks for a service in the phone book, they're going to choose the person that knows how to spell." Excellent point, confrere!

Yellowbook's PR person, Elizabeth Opacity of the PR company Weber Shandwick , gave the standard PR spin reaction: "the company doesn't comment on pending litigation". Yawn.

My (free) legal advice to Yellowbook: settle this issue quickly and discretely. In the mean time, Mr. de Castro, enjoy your free publicity courtesy of Yellowbook.