Sunday, May 06, 2007

from legal watch blog

Legal Blog Watch

Forward This at Your Own Risk

By way of the Fortune magazine blog The Browser comes word of a forthcoming law review article that posits the argument that forwarding an e-mail is a violation of copyright law. In the article, A Copyright Conundrum: Protecting Email Privacy, Ned Snow, assistant professor at the University of Arkansas School of Law, finds a 250-year-old common law tradition granting copyright protection to authors of personal correspondence. While congressional enactment in 1976 of the Copyright Act arguably changed all this, Snow concludes that constitutional limits on the reach of copyright legislation mean that this protection of personal correspondence remains very much alive -- and encompasses e-mail. From the abstract:

"The issue of whether common-law copyright today protects email expression turns on whether the Federal Copyright Act preempts common-law copyright. The Copyright Act includes a fair-use defense to infringing uses of unpublished works, and that defense likely applies to email forwarding. A strong argument exists, however, that the Act does not preempt common-law rights of expression which protect privacy. Federal preemption extends only as far as the Constitution permits. According to the Copyright Clause in the Constitution, federal property rights in expression are limited to rights that forward a utilitarian end. Rights of privacy do not forward a utilitarian end. The Act should therefore be construed as not preempting common-law copyright's protection of privacy. Email forwarding must yield to privacy protection."

This is as it should be, Snow argues in the article, which will be published in a forthcoming issue of the Kansas Law Review. "Any seemingly excessive litigation over email will in the end be productive, ensuring senders' privacy," he writes. "For email to be as thoughtful, clear, and creative as possible, privacy of expression must be recognized."

I hereby seek certification as plaintiffs counsel to a class of all who've ever had their e-mail forwarded.

Posted by Robert J. Ambrogi on May 3, 2007 at 02:03 PM | Permalink | Comments (0)

Quiet Firm Manages Old Media Money

With media magnate Rupert Murdoch's $5 billion bid this week for Dow Jones & Co., parent to The Wall Street Journal, attention was focused on the Bancroft family, old-line New Englanders who own the controlling stock of Dow Jones. As a fascinating report today in The Boston Globe describes, the family "has shunned hands-on management and has instead entrusted much of its legacy to powerful but discreet Boston lawyers."

"The Bancroft heirs, who collectively own stock that would be worth about $1.2 billion if the Murdoch offer were accepted, have occasionally been divided on the question of how best to manage their Dow Jones holdings. While the heirs are scattered about the country and engaged in their own endeavors, the center of their financial power has remained in Boston, with the law firm of Hemenway & Barnes, on State Street, which will probably play a major role in their final decision."

Hemenway & Barnes is a 144-year-old firm with 30 lawyers engaged primarily in trusts-and-estates law. As the Globe reports, its motto, "A Wealth of Experience," "neatly describes its niche: managing old money." One partner, Michael B. Elefante, not only serves as Bancroft family attorney but he also sits on the 17-member Dow Jones board of directors, along with three Bancroft family members. Another Boston lawyer described Hemenway as the Bancroft family's "de facto gatekeeper." The Globe explains:

"Their Dow Jones fortune is tied up in a trust system that is prevalent in Boston; in that system, change does not come quickly. The way trusts such as the Bancroft fortune are managed places great power and control in the hands of lawyers who make financial decisions on behalf of family members. It is a system that evolved in the 19th century, said experts in the field."

Robert Glovsky, president of Mintz Levin Financial Advisors in Boston, explained it to the Globe this way: "Instead of giving money to the banks in those days, they gave it to their lawyers." Ah, the good old days of good old money.

Posted by Robert J. Ambrogi on May 3, 2007 at 02:00 PM | Permalink | Comments (0)

The Uneven Partnership Track

Women lawyers jump off the partnership track at a much higher rate than their male counterparts, and the reason remains rooted in the "neo-traditional division of family labor" that leaves women bearing greater responsibility for children and households. This is the conclusion of a report published yesterday, Women Lawyers and Obstacles to Leadership, from the MIT Workplace Center.

The report draws on the findings of two surveys, one of attrition rates in Massachusetts law firms and the other of career decisions in the practice of law. It seeks to provide an explanation for the "confounding fact" that women and men have been graduating from law school and entering firms in virtually equal numbers for at least 15 years, but women make up only 17 percent of firm partners. Even excluding the period before women entered firms in large numbers, the number of women partners would only be 21 percent.

The report finds that women leave the partnership track at a much higher rate than men. Some move to off-track positions within their firms, but nearly a third of associates and another third of nonequity partners leave firm practice entirely, compared with less than 20 person of men at both levels, the report says. They leave because of the difficulty of combining law firm work and child rearing. And those women who stay at a firm part time do not receive treatment equal to their full-time counterparts.

Interestingly, men on the partnership track, on average, have more children than their female colleagues, but few adopt part-time schedules to care for family. The difference: Most male lawyers live with someone who is able to assume responsibility for family care. By contrast:

"Most of the female lawyers live with spouses or partners who have an equal or greater commitment to their careers and contribute an equal or higher percentage of the household income so that both have severe time constraints. And assuming traditional gender roles, more women than men in law firms solve the time problem by reducing work time which for many means leaving firm practice."

In The Boston Globe, Lauren Stiller Rikleen, a senior partner at the law firm Bowditch & Dewey and author of the book, Ending the Gauntlet: Removing Barriers to Women's Success in the Law, says of the survey: "This shows that we are reaching a crisis point when it comes to the retention and advancement of women in the legal profession, and therefore a crisis point when it comes to women leaders generally."

Posted by Robert J. Ambrogi on May 3, 2007 at 01:58 PM | Permalink | Comments (0)

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