I have been rereading the legislative history of the 1909 Copyright Act.  I have come to the conclusion that 100 years ago we were smarter about copyright,  about disruptive technologies, about intellectual property, monopolies and network effects  than we are today. At least, the legislative hearings were much smarter.  The hearings I am looking at took place in 1906 — thanks to the wonder of Google books you can read them yourself, if you are really nerdy.

via Were we smarter 100 years ago..? | The Public Domain.

Themes from then and now certainly recurred, but there seemed to be a better balance among the business interests as to the pros and cons of various copyright restrictions. For example, here is an argument from the representatives of the recording and player piano industries that their technologies actually encourages the dissemination and sales of music — reminiscent of arguments by many today:

The whole of the article is worth reading, if only to remember that our current system was hardly inevitable, and that many pro-business arguments can be made for a different approach.

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The New York State Court of Appeals, in Stern v. Bluestone, 2009 NY Slip Op 04740 (2009), overturned a lower court ruling that ruled that a faxed newsletter dealing with attorney malpractice issues — the same area in which the author of the newsletter practiced. Lower courts thought this newsletter constituted advertising, and thus ran into rules about attorney advertising. The Court of Appeals disagreed.

Why is this important for law bloggers?

The primary purpose of most law blogs is the dissemination of information. Like Bluestone’s “Attorney Malpractice Report,” blogs educate the reader about a subject matter that is unrelated to the self-promotion of the blogger.

Certainly increased visibility of the blogger is a byproduct of the publication of a successful blog; and as a result of that visibility, new clients may follow.

But, that doesn’t mean that the primary purpose of the blog is the retention of clients.

In comparison, I think that most people would agree that the primary purpose of television and radio ads, billboard ads, professional Web sites and yellow page ads is the retention of clients. Blogs are different because the primary purpose of blogs — sharing information — is separate and distinct from the self-promotion that is the essential element of most advertisements.

Thankfully, the court’s decision in Stern v. Bluestone is a strong indication that the highest court in New York understands this distinction. The court understands that lawyers’ creative use of emerging Internet technologies is, in many instances, simply an extension of traditional networking activities, including speaking at a seminar, authoring an article in a legal publication, distributing a newsletter via e-mail or joining a committee at the local bar association.

It’s good to know that the highest court in New York “gets it.”

via The Court of Appeals “gets it” when it comes to technology « Practicing Law in the 21st Century-A Law & Technology Blog.

In short: the same logic could be applied to a topical law blog written by an attorney, making this ruling important outside of the realm of faxed newsltters. In addition, lthough this ruling applies only to New York State,many states have similar rules, and hopefully this ruling bodes well for potential cases in other jurisdictions.

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