Archive for the 'Law' Category

LegalZoom and the Rise of Online Legal Self-Help

Published
by
Michael Law
on November 30, 2007
in Law
. 0 Comments

From shlep:

LegalZoomLogoRick Georges, a member of Team Shlep, had an interesting posting last week at his Future Lawyer weblog about LegalZoom Online, which calls itself a “Legal Documentation Service.”   Saying “We can help you take care of common legal matters - without an attorney,” LegalZoom explains that you can ”Save time and money on common legal matters! . . . [and] create reliable legal documents from your home or office. Simply answer a few questions online, and your documents will be prepared within 48 hours.* We even review your answers and guarantee your satisfaction.”  (via Oregon Legal Research, Jan. 17, 2007)
After taking a look at LegalZoom, Rick says “lawyers who don’t use technology will not be able to compete.”  He explains:

“We need to offer legal advice AND document drafting at a competitive price, or we will not have to worry about law practice anymore. It will be gone. There is no substitute for a competent lawyer’s advice. However, we need to give the public value, or they will go elsewhere.”

Many publications have written about LegalZoom, but Rick’s nudge got me to spend some time at the website over the weekend.   It is an impressive enterprise, offering document creation services in the following areas: Copyright, DBA, Divorce, Immigration, Incorporation Services, Limited Partnership, Living Trust, Living Will, LLC, Name Change, Patent, Power of Attorney, Pre-nuptial Agreement, Real Estate Leases, Small Claims, Trademarks, Will.

LegalZoomNFurthermore, the advantages that they boast about — reviewing your answers for correctness and completeness; having assistance available at a tollfree number; using advanced provisions that are not found in simple “do-it-yourself” kits or manuals; printing out the documents themselves on good paper stock; “per project” and “lawyer-free” pricing that is far below what a lawyer might charge using hourly fees (they say up to 85% and give an estimate of the savings for each service); and a 100% Satisfaction Guarantee — would surely appeal (if only they knew about it) to many legal consumers who want to save money and keep control of the project, but are wary of, or don’t have time for, acting on their own.

LegalZoom also has an Education Center/Library, that “allows you to access the information you need to research your legal questions and make informed decisions” (e.g., FAQs, Legal Topic articles, Glossary, and Non-Legal Resources).  For example, see the Prenuptial Library.  The materials are available to anyone and seem like helpful introductions to the many topics covered.  In addition, you can fill out the LegalZoom questionnaire for each procedure for free and “At the end, you may decide whether or not you wish to purchase.”   That process may help many consumers decide whether they can go it on their own — using forms and information prepared by a court or by a self-help publisher — and/or need the direct advice or (unbundled) services of a lawyer.

I can’t endorse LegalZoom as a product, but I can say that it appears to be worth considering by consumers who need lawyering services.  The apparent success to date of LegalZoom is, I believe, an important milestone in the market for legal services.  Americans like to use a product or service that they have heard about and that has a track record; and entrepeneurs are much more likely to enter the market with competiing services (perhaps focused on a particular state or legal subject) if they see a model that works.   As Rick Georges suggests, lawyers — especially those serving the everyday, common legal needs of the average consumer or small business — may find themselves at a great disadvantage if they do not figure out a way to offer comparable value to their clients (in service, results and price).  Document-creation technology will surely be a part of that value package, allowing fees to be lowered because far less time will be spent with each client.

Having said that, I am not at all certain that the change — a revolution that brings true price and service compeition to the lawyering marketplace, and creates more viable choices for consumers – will benefit a large percentage of consumers any time soon.  Under the fold, I have excerpted a posting from my weblog f/k/a, ”Internet Lawsites Encounter the Profession’s Guild Mentality“ (Sept. 16, 2003) that discusses why the legal profession’s “guild mentality” has kept if from adopting new techology and responding to competitive forces, as lawyers try to hold on to income, control, and status, in the face of a new breed of consumer.   Excerpts from “Internet Lawsites Encounter the Profession’s Guild Mentality,” Sept. 16, 2003, at the ethicalEsq-f/k/a weblog:

ComplaintBill. . . [M]y experience looking at learned professions from the competition-consumer perspective tells me that the real culprit [in the failure of websites offering legal services] is the historic “guild” mentality, which fears and opposes virtually every type of innovation in services or marketing.  This is especially true if most guild members see themselves as threatened with the loss of business and income, the need to become more efficient, or the pressure to engage in price or quality competition.  In addition, in the last few decades, doctors and lawyers have been most reluctant to cede their position of unquestioned authority to mere consumers.   (see our posting on Sept. 4, 2003, discussing the new breed of client and unbundling) . . . .

sharkS I’m not saying that there will never be a financially viable format for delivering legal services online.  I am say, however, that expecting a broad and significant amount of interest from the bar or its members is unrealistic.   Most likely, individuals or small groups of lawyer-entrepeneurs will have to carve out target markets of consumers and attract them to their sites.  Piggy-backing on the self-help services of courts — by offering complementary unblundled services — might be a good place to start.  Just remember: the guild won’t make the efforts easy. . . . .

P.S. Sherry Fowler (a/k/a Scheherazade) at Civil Procedure Stay of Execution . . . left a Comment worth sharing here on the Home Page:

There are so many circumstances in which a sensible, practical, reasonably priced solution to a client’s problem needn’t involve a lawyer, or needn’t involve a lawyer for long. Why on earth should acknowledging that be so antithetical to so many lawyers? It’s absurd.

Editor’s Reply: I don’t know if this was a rhetorical question.  If not, my pithiest answer would be: fear of losing dollars, control, prestige.

More expansively, it seems that most lawyers expected a very good lifestyle to come automatically with their J.D., along with high social status.  They are angry and worried that the marketplace doesn’t value their services as highly as they had expected, and they are bewildered that society doesn’t give them the anticipated respect.   Good intentions of any one individual lawyer can be readily overwhelmed by the demands of partners (at work and home) to keep the income stream flowing.   The result, as individuals and as a group, is resistance to any change that threatens to further undermine their financial and social position.   As stated with refreshing candor in a recent bar association publication, “the top concerns of the practicing bar are the economics of the practice and the image of the profession.”     (Illinois State Bar Association Bar News, June 16, 2003)

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Exploring the Law of the Second Life Video Game

Published
by
Michael Law
on March 16, 2007
in Law
. 0 Comments

From Fragmintz of Video Game Law:

Second Life (unrelated to the popular computer game Half Life) is a cross polli(gon)nation of The Sims (highly popular game that pits players in a character’s ordinary simulated life doing everyday things), a chatroom, a massive multiplayer online role playing game (MMORPG) and Ebay (online marketplace). The premise is simple: create your fantasy life and live, play and exist in an evolving online world with over 100,000 other subscribers.

This is the description on the site for what Second Life is about:

“Second Life is a 3-D virtual world entirely built and owned by its residents. Since opening to the public in 2003, it has grown explosively and today is inhabited by nearly 100,000 people from around the globe.

From the moment you enter the World you’ll discover a vast digital continent, teeming with people, entertainment, experiences and opportunity. Once you’ve explored a bit, perhaps you’ll find a perfect parcel of land to build your house or business.

  • You’ll also be surrounded by the Creations of your fellow residents. Because residents retain the rights to their digital creations, they can buy, sell and trade with other residents.
  • The Marketplace currently supports millions of US dollars in monthly transactions. This commerce is handled with the in-world currency, the Linden dollar, which can be converted to US dollars at several thriving online currency exchanges.
  • Welcome to Second Life. We look forward to seeing you in-world!“

But how does it really play out? What are interactions like? In the words of the Second Life Community Page describing the ideology of the virtual world:

“We are a global community working together to build a new online space for creativity, collaboration, commerce, and entertainment. We strive to bridge cultures and welcome diversity. We believe in free expression, compassion and tolerance as the foundation for community in this new world.”

It sounds like utopia. But what about the real world? How could someone afford to sit and play in the virtual one? While Second Life provides plenty of fantasy opportunities to make virtual money, some people take this a step further and translate their cyber-jobs into actual careers. Wired.com reports about Jennifer Grinell, the “Michigan furniture delivery dispatcher turned fashion designer in cyber space” who now makes four-times the amount of real U.S. dollars that she ever did working 9 to 5 in her old job. “Grinnell isn’t alone,” reports Wired, “Artists and designers, landowners and currency speculators, are turning the virtual environment of Second Life into a real-world profit center.” A reported $5 million actual dollars were exchanged in Second Life in January of 2006 alone (about $38 dollars per user). That means big money, and where there is big money there is law.

What about the law of Second Life? Well, for creators of content, via individual users, Second Life leaves this comfort posted on their IP page:

“Linden Lab’s Terms of Service agreement recognizes Residents’ right to retain full intellectual property protection for the digital content they create in Second Life, including avatar characters, clothing, scripts, textures, objects and designs. This right is enforceable and applicable both in-world and offline, both for non-profit and commercial ventures. You create it, you own it—and it’s yours to do with as you please.”

(Hey look! Virtual/real world infringement - Chasing Amy?)

It is this type of flexibility and freedom that creates opportunities for people to make their money. The IP range is broad and includes such things as cyber-movies created for online characters (and real world players) to watch, cafes to dine in (trade dress rights apply), billboards to advertise on, car designs, building architecture, and anything else you could think of. Someone could even have rights in a video game they create in the video game (my head is starting to hurt thinking about the possibilities). This raises many IP implications, including how do statutory damages apply? How does likelihood of confusion play out for cyber-infringements of real world property in the game? Who has jurisdiction in a dispute between Second Lifers? Real world people to Second Lifers? What about virtual disputes between Second Lifers completely w/in context of Second Life (yes, there is actually a police blotter and penalties in Second Life for getting caught for things like using guns on other citizens and the like)? Some of these issues could be covered in the Terms of Service, but those terms are not binding on parties outside of the service agreement.

There is a darker side to all of this. Cyber porn profits are also part of the free-enterprise society of Second Life. Yes, dear readers, believe it or not, you can be a simulated smut purveyor in this alternate reality. What are the laws governing this kind of trade? Not much is written on it. This leaves one to wonder if things forbiden in the real world are permitted in Second Life. One may wonder if something as reprehensible as child pornography may be tolerated in Second Life’s “tolerant” community. Could there be prosecution for, (Warning - sexually explicit cyber-content in next link) cyber-kiddie porn?

In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (U.S. 2002) the Supreme Court struck down a law passed by Congress that would ban virtual child pornography. The Court found that representations of child pornography should not be criminalized like actual child pornography, b/c in doing so Congress would be simultaneously criminalizing protected expression. Strict liability statutes against kiddie porn are intended to shield victims (children) from the harm of sexual predators. Simulated child porn has no direct victim, and the Court found that the freedom of expression in creating visual digital images should not be curtailed for its subject matter by hiding behind the child porn laws. The Court noted that visual depiction of teenagers engaged in sexual activity has been a common theme among acclaimed artists of modern times and should be protected for its creative social commentary elements.

Does Second Life go a step further in providing a simulated sandbox to give potential predators practice in plying their trade? I often advocate that the issues surrounding video games and interactive entertainment are unlike other IP issues, mainly b/c of the interactive nature of this content. Is a child pornography game offensive enough to trump the free expression rationale of the Court in Free Speech Coalition? Let me take this a step further. Suppose an innovative capitalist from Second Life sees an opportunity to make the sexual encounters of players more authentic. They seek a licensing grant from Immersion (click link for Immersion v. Sony discussion) for the haptic feedback technology that causes interface devices to vibrate in real time to the images and action on the screen. They market such devices to be used for sexual encounters between players/characters of Second Life. Now the bar is raised in the child porn situation. Still no actual child victims, but something more than just expression happening in conjunction with sexually explicit images of adolescents. Would this be enough to outlaw the creation of virtual child porn?

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Nebraska Court Throws Out Claim For T-shirt That Caught Fire

Published
by
Michael Law
on November 6, 2006
in Law and Law News
. 0 Comments

From May It Please the Court:

In 1999, Jeffery J. Marksmeier was wearing an old T-shirt manufactured by McGregor that wasn’t manufactured after 1990.  And he was burning leaves.  While he was burning leaves, he apparently leaned over a little too close to the pile of leaves and his T-shirt caught fire. 

Jeff was severely burned, and to recover for his damages, in 2003, he sued McGregor and a company called Delta Apparel, Inc., which manufactured the T-shirt under license from McGregor.  Apparently in the interim, there has been a change in the materials used to manufacture T-shirts, and Jeff claimed strict liability for using a material that didn’t have flame retardant on it.

Instead, the Nebraska Supreme Court made short work of Jeff’s lawsuit, and dismissed his claims against both McGregor and Delta.  The high court cited Nebraska’s statute of repose for bringing lawsuits against manufacturers of goods that were manufactured more than 10 years before the suit was filed.  The Nebraska court had not had the opportunity to interpret its statute of repose before, but no worries, it found that Tennessee used the same one.  With a hat tip to a series of Tennessee cases, the court snuffed out Jeff’s claims against these two manufacturers. 

Jeff and his mother were unable to testify when they got the T-shirt and how long it had been on the shelf at the store where they bought it.  Jeff even thought the T-shirt might have come from Goodwill.  McGregor, on the other hand, knew exactly when that particular T-shirt had stopped rolling off the manufacturing presses:  1990.  More than 10 years had elapsed between then and the time Jeff filed suit, so Jeff did not pass go or collect $200.

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