Cyber Law – Many of the Newest Cyber Laws Are to Protect Businesses

Two decades ago there wasn’t really any type of cyber law. Today, we can’t pick up a newspaper, without reading something about legal issues that involve the Internet, or the companies that do business there. The record and movie industry has been distraught over piracy, copyright infringement, and stolen intellectual property. And they have every right to be, but they aren’t taking it lying down.

In fact, we now see that many of the cyber laws on the books are there because the movie and record industry has sent their lobbyists to Washington DC to get laws passed to prevent this theft. Has it worked? Yes and no, the piracy still exists, and it is doubtful if it can all be stopped. The European Union has just come out with a new law to protect companies from individuals downloading without paying for movies, and songs.

Software companies are also being ripped off, and it’s not just in places like China where you might expect, a lot of stuff happens in the United States, and the Internet is worldwide, as we cross the digital divide. Sometimes people can’t afford songs or movies so they download from a website which has pirated the songs and movies, and then there are the people who build websites who distribute this material who find ways to get a hold of it, usually you legally themselves.

Recently there was a very interesting article on cyber law and one of the big problems in the Wall Street Journal. The article was titled “Warner Bros. Probes Online Leak of Potter” by Loren A.E. Schuker published on November 24, 2010.

It turns out that Warner Bros had their latest Harry Potter film stolen a full four days of head of its debut according to the article. Although the full movie was not available, the first 36 min. were, and the folks that love to play around with file-sharing were able to get it for free. Now then, I’d like to express my opinion on this topic – and then ask some questions, philosophically of course.

If the movie companies can’t get a return on their investment because their films and movies are stolen and given away for free, then they are less likely to spend big budgets on big movies in the future, because they will not be able to make a profit. Indeed, this creates a huge risk in the marketplace, and the reward is not there, if the work will only be stolen.

This is a detriment to not only the United States but also countries like Brazil and India who are also now making movies, along with China. How they protect their movie industries, as they will have the same problems as we do here. How much is at stake – hundreds of billions of dollars per year. That is well over the gross domestic product of at least 300 of the world’s nations – stolen in cyberspace.

Even though we have laws in the United States, the EU, and other countries it is doubtful that cyber law alone can stop this problem. It appears that cyber law is only keeping the honest people honest, and the criminals are moving around too fast to stop, even with the recent domain name repossessions by authorities. Please consider all this.

What Are Blue Laws?

Whether or not you are familiar with the term, you are almost certainly affected by them in your day-to-day life. Blue laws are laws which are not federally enforced (and have in fact occasionally been struck down as unconstitutional) but are commonly established on a local or municipal level to enforce moral and religious expectations. A common example of a blue law that we see frequently is the closing of liquor stores on Sundays.

History

Blue laws are actually some of the oldest laws in the United States, having been common in the colonial period, especially in the Puritanical strongholds of the Northeastern Seaboard. Such laws often required citizens to attend mandatory church services and conduct themselves in certain “moral” ways. It is this concern about morality that provided the etymological term “blue,” which was an 18th century idiom for being overly concerned with morality.

Blue Laws Today

These laws persisted well into the 20th century, especially in southern states. For example, in Texas, it was illegal until the mid-1980s to sell housewares on Sundays. Even today, both Texas and Utah prohibit car dealerships for being open two weekend days in a row. And many states obviously still prohibit liquor sales on Sundays. Somewhat counter-intuitively, the affected businesses often support these laws, as they allow a day off without fearing the competition getting an advantage.

Common Blue LawToday

The following states prohibit the off-premises sale of spirits on Sundays:

  • Connecticut
  • Georgia
  • Indiana
  • Minnesota
  • Mississippi (some counties are exceptions)
  • North Carolina
  • Pennsylvania (on a store-by-store basis due to license restrictions)
  • South Carolina (with some exceptions for beer and wine)
  • Tennessee
  • Texas
  • Utah
  • West Virginia (beer and wine may be purchased after 1pm)

Legality Status

Because blue laws can be purported to have a religious bias, they can often be struck down if brought to a high-enough court. However, the remaining blue laws have usually been deemed constitutionally sound because many of the laws regarding stores being closed have their basis in a secular day of rest; i.e., they do not involve any sort of religious prejudice. This belief was established judicially by the Supreme Court in the landmark case McGowan v. Maryland, which upheld blue laws in the state which prohibited commercial activities on Sundays. The Court noted that while those laws were originally put on the books because of the Christian sabbath, they had since grown to provide a secular, uniform day of rest for citizens.

Why I Like The Term Counselor At Law

The term counselor-at-law is more in keeping with high goals and ambitions than the term lawyer. Counselor elicits an image of one who has deep knowledge–who dutifully informs and offers insight into critical matters of the mind and heart. A counselor is a person who guides others–a confidant and a pathfinder, and law firms would be wise to find ways to show their clients that they are counselors as well as lawyers.

Creating a change in image does not mean rejecting traditions that have contributed to a firm’s past success. We must be careful not to toss out the proverbial baby with the bathwater. We should not take for granted the hard-won wisdom of the old traditions. The process of reinventing tradition need not always be at the expense of the past.

Progress is being made in the legal profession. Today, the art of mediation is being taught to lawyers in record numbers. Lawyers are seeing the value of keeping clients out of court and even experimenting with new methods of managing conflict resolution–sometimes on their own, but usually with the help of trained mediators.

Although the practice is still rare, lawyers are increasingly taking it upon themselves to meet with opposing counsel and discuss pathways to resolution for their respective clients.

Lawyers are beginning to see themselves as expert negotiators–as facilitators who are skilled at managing conflict proactively and helping parties to achieve mutual gain. This type of “counselor-to-counselor” mediation may be the beginning of a new -tradition–one in which using the term counselor-at-law seems more appropriate.

“Counselors” are still advocates who must vigorously serve their clients’ will in an adversarial forum. Yet we must remember that in days gone by, the court was considered a forum of truly last resort. Going to court often represented the failure of parties to resolve a dispute between themselves. The prospect of having strangers sit in judgment of one’s personal affairs was considered embarrassing. It meant that the parties were not able to handle their affairs responsibly on their own but needed outside help.

Although some lawyers are turning to negotiation rather than lawsuits, legal education has not kept pace with the profound need to teach client communication skills to law students. Many law schools do not offer courses in management and leadership, negotiation and alternative dispute resolution or, in a more general context, how to serve clients well. Less than 3 percent of the law schools in this country offer even a single course on client communication skills, negotiation or even alternative dispute -resolution.

Blind Advocacy

Law schools still believe that their role is to prepare students to become warriors; rarely are students taught that they may also be agents of resolution. To legal educators, the term advocate has traditionally been defined within the singular context of litigation. Lawyers, however, can also be advocates when they work toward resolution and finding ways to better serve their clients.

It is no surprise that law school graduates go on to become paper soldiers in a world filled with adversaries. The plaintiff is adverse to the defendant; the defendant is adverse to the plaintiff. Students are even taught how to protect themselves against their own clients. We lawyers measure ourselves by the number of wins we post, not by how skillfully we serve our clients’ interests.

Lawyers are steeped in their adversarial domain, and this tradition is hard to change. Too often we see our roles as extensions of our clients’ anger and frustration. We are like professional gladiators, wielding sword and shield, blazing a path to justice at almost any cost–even if we end up adding fuel to the fire and assuming greater levels of risk for our clients.

For new law-school graduates, the adversarial system must seem like a giant game station with its own set of rules–checks and balances. Each side is given equal access and the opportunity to use whatever traps and tricks they wish, with the assumption that in the end, justice will prevail. Students begin to think of themselves as hired guns–paid to win, but not necessarily paid to serve.

Today, trial advocacy is probably the single most popular elective taken in law school. Schools send their best and brightest students to compete nationally in the art of trial advocacy. Yet there is no national competition for serving clients well or negotiating and resolving difficult conflicts. At this time we can only imagine a competition where students win points for formulating creative strategies in negotiating a settlement or for demonstrating calm and reason at the negotiation table.

There’s no doubt that going to battle releases more adrenaline than providing service. But does teaching our law-school students only one way of problem solving really provide them with a complete view of their future roles as lawyers and counselors?

Negotiating a case to settlement is not always the answer–there are legitimate reasons to settle matters in a courtroom rather than a mediator’s office. Nonjudicial resolution may be impossible when the parties rightfully and legitimately want to have their day in court. Under these circumstances, what is the lawyer’s role in the context of being a service-driven counselor?

The lawyer, as counselor, helps clients to identify and clarify priorities and to distinguish anger from reason. The lawyer makes sure that a client’s decision to fight comes from a clear head and, if possible, that it is an unambiguous choice. In this counseling role, the lawyer helps a client to make a considered, thoughtful decision, born of free will, after all of the options have been explored and after all the costs and risks have been examined. Finally, when it is time for trial, the advocate skillfully and masterfully gives voice to and goes to battle for the client’s cause.

How to Achieve a Good Lawyer-Client Relationship

In courting clients, a good rainmaker discovers the nature of a potential client’s business and the specific challenges the person faces. When appropriate, the lawyer also learns as much as possible about the client personally.

This high level of commitment is the essence of being a fiduciary, and it does not end when the prospect becomes a client. Instead, taking on a new client must mark the beginning of a committed and conscious effort to serve.

For most lawyers, learning how to serve requires specific skill development and training. It requires learning the arts of listening and asking questions. These are the most undervalued and overlooked skills in the legal profession today. Law firms usually balk at investing in the education and professional development of their associates, and mentoring is often limited to developing legal skills, but developing communication and character skills should be at least equally as important.

Learning how to serve clients, especially for young associates, should not be a hit-and-miss process. Firms must take an active and determined stand regarding developing and sustaining a high level of communication skills throughout the firm. Promoting these skills should be as important as developing an associate’s writing skills.

What Does It Mean for Clients to Count on Their Lawyers?

Action that arises from character is authentic and, therefore, predictable. Clients should find that their lawyers can be counted on under almost any circumstances. Lawyers who can be counted on to be responsible, attentive, caring, sensible, honest, hardworking and trustworthy will attract new clients and keep existing ones.

Developing a law firm driven by such inspired values will create growth and prosperity. These values cannot be imposed from the outside and cannot simply be words in the firm’s brochure–they must originate at the core of the firm and grow outward. This is the essence of great marketing.

Justifying our hourly rates should have more to do with the service we deliver than the prevailing rate of the marketplace. The value of an extraordinary counselor–a trusted friend–is greater than one can imagine, and clients expect to pay more for such service. This is why, in the long run, no investment will bear greater returns than the investment firms make in marketing programs that reach into the essence of a firm and build service development systems that clients want and value.

It’s not too late. Signs of new traditions and new ways of looking at service-driven marketing are already upon us from places you might not expect. I speak of leading firms, giants in their own ways of doing business that are ever intent on reaching new levels of service for their clients.

Swinging Out: Keeping Our Eyes on the Ball

It’s said that those who dream most, do most. Dreams resides in our imagination and come to life in the choices and actions we take. The extent to which our dreams are realized depends on our willingness to consider new approaches and employ new ideas. Marketing, when done well, draws upon both.

The law firm of Heller Ehrman not only understands this concept, but has also applied it with great success. It has chosen to lead, and its own branding makes clear that it is a different type of firm. The ad copy below comes from a full-page advertisement about the firm. Listen for the inherent truth in their words:

“Perhaps a law firm need not exist inside the legal-sized parameters of tradition. Maybe it lies outside of convention. Maybe it crosses lines of formality. Maybe it recognizes a need to overstep the expected. And quite possibly, it realizes that inspired acts of tenacity and imagination are the only way boundaries get pushed.”

Consider that just five years ago, maybe less, a nationally recognized law firm would never have dared to print such statements. Today, however, these words are part of what defines this firm.

Daring to swing out–to take a chance by doing things differently–takes both courage and faith in a profession where convention rules: courage to face the consequences of our choices, and faith that whatever life throws at us will only strengthen our resolve. In this sense, faith and courage are inextricably tied together.

It takes great courage to keep seeing. The problem with looking away is that it requires that we take our eye off the ball–if only for a moment. We would rather not face the personal disappointment of knowing that we settled for less in our professional lives–that we could have gone much further had we dared to really swing out–had we had the courage to look inside and ask what it was that we really wanted and what it would take to get it.

Marketing ourselves is much more than promotion. It involves a search for professional identity. It must necessarily include, for each of us, an inquiry into our personal identity and then into the collective identity of the firm.

A concept such as finding our personal and collective identities may not be what you’d expect from an article on law firm marketing–but it goes to the essence of how we really attract and keep new clients. Changing the way you market your firm will require a willingness to change your perceptions, leave the comfort of your domain and dare to imagine how things might be. Your new vision will be the catalyst for your success. It will align your firm with its highest values and distinguish it from other firms.

This strategy goes far beyond the conventional approach to marketing. It is based on strength of character, and the marketing that emerges from character will continually generate powerful opportunities for your firm. If you dare to consider what it might mean to find your unique voice as a professional and your own special brand of service, you will be infinitely rewarded. Who would think that law firm marketing could lead to such extraordinary insight.

Civil Law Vs Common Law

Every country in today’s society has laws that are established within their country that they must follow. If people do not follow these rules then they face the appropriate consequences for disobeying them. Some countries are run similar and others are run very differently. There are two major traditional laws which are civil and common law. These are the two most frequent laws throughout the world. Civil is the most familiar amongst countries especially in Europe and Asia. Common law is more natural amongst North America. Both of these were historically established many years ago. There are several differences between the two laws but they do overlap with some similarities also.

The term civil law derives from the Latin word ius civile, the law applicable to all Roman citizens. This was established in the sixteenth century. Europe was the first to adopt this law and almost all of Europe taught this at all their universities. Civil law is considered codified. Each civil law country has their own codes to determine the different punishments for each of the categories of law. Some examples of these codes are procedural, substantive, and penal. Procedural law determines what actions constitutes a criminal act, substantive law establishes which are required of criminal or civil prosecution, and penal law decides the proper penalties. It is the judge’s job to gather the facts of the case and distinguish the correct codes that apply to the case.

The main countries that civil law is in today are China, Japan, Germany, France, and Spain. Each of these countries has a written constitution. One major difference between civil law and common law is that it is required for the country to always have a written constitution. On the other hand common law doesn’t always have one. An issue that one can argue is that civil law is not as effective because it is broken up into different codes and not just one whole. But civil law having several codes to put input into these issues helps with a final decision.

Common law is similar but also very different from civil law. This law is uncodified which means there is no compilation of legal rules and statutes. These laws are also known as case laws or precedent. A key difference between the two laws is that the common laws have been developed based on results that have occurred in older court cases. For example, when there is a case that the parties disagree on then they refer back to precedential decisions of relevant courts and follow the reasoning used by those courts. It is considered more complicated than many other simplified systems because there are several different courts within the system but not all have the same power of jurisdiction. Some courts having more powers than others can cause issues within these rules because not everyone has an equal say.

Common law was established in the middle ages in the King’s Court. It exists in the United States today but its origin is England. It mainly exists in North America but is also spread amongst a few other countries. It was adopted by the states following the American Revolution. There were many guidelines throughout the world during this time but common law took dominance during the seventeenth century.

Most countries are based off some sort of tradition from that past. These two laws, common and civil, were both established around the sixteenth century. They have shaped the way most countries make their judicial decisions. Countries in South America, Europe, and Asia follow civil law which was founded in the sixteenth century by the Romans. Civil law is codified which means they have continuously updated legal codes that apply to all issues that could be brought up in court. Countries in North America and several in Africa follow the common law which was founded in the late Middle Ages in England. Common law is mainly based off of precedent decisions made by judges and are maintained through records of the courts. These laws are what shape countries’ societies today.