Andy Oram‘s article Fenced-off culture, the privatized Internet, and why book publishers lean on a 30 year-old-doctrine is essential reading for anyone interested in the free flow of ideas. An excerpt summarizing recent developments sets the stage for Oram’s analysis:

In June 2020, shortly after the dramatic pandemic-related closure of libraries, four publishing companies sued the Internet Archive not just for distributing books without authorization, but for making copies in the first place. The brief filed by the publishers paints an alarming scene, calling the nonprofit Archive a “major commercial business” (paragraph 92) and suggesting that the Archive’s work “causes substantial harm” to the publishers (paragraph 119). In contrast, the Electronic Frontier Foundation, in a brief supporting the Archive, provided evidence that no commercial harm occurred (section II.D).

“This lawsuit represents a direct challenge to the ability of libraries, as stewards of free information for the public, to provide open, non-discriminatory access to culture in the modern age.” says Kyle K. Courtney, lawyer, librarian, copyright advisor at Harvard Library, and co-founder of Library Futures.

But the impact could be even bigger. If this lawsuit is successful, the increasing number of resources that exist in digital form would be controlled entirely by their publishers. Once the publisher withdrew a work or went out of business, the work would disappear. Such an environment would hollow out not only the principles of first sale and fair use, but potentially the third pillar of free information: the public domain.

A successful lawsuit would also tempt other copyright holders, perhaps including web sites whose contents are preserved for posterity by the Internet Archive, to piggyback on the court ruling and require the destruction of online copies. Sims says that the Archive case “is a huge piece of what we’re dealing with in libraries right now.”

You might think you know the direction this article is heading, but I am about to make a dramatic turn. The negative effects of the lawsuit are amply discussed by a number of journalists, including the article mentioned earlier in The Nationand two others by Bustillos, “Publishers Are Taking the Internet to Court” and “You Can’t Buy These Books.” Slate has also been covering the lawsuit. Libraries themselves have also added their voice to the fray.

My goal in this article is to trace the conflict back 30 years and show why copyright law makes the suit possible. I approached the publishers who launched the lawsuit for comment, and none of them responded. But having worked for a publisher myself for 28 years, and having explored the issue of digital copyright since it first emerged as a public issue, I believe I can express their point of view. As you will see later in the article, though, the publishers’ refusal to engage leaves an awkward hole in our attempts to make sense of their position.

Thanks to Sabrina Pacifici and for continuing to feature the best ideas from today’s thought leaders.

Too many good ideas & fresh thinking in this article by Sharon Nelson, John Simek and Michael C. Maschke to comment on them all here, but I’ll highlight one. This “social engineering” technique has been around for at least 30 years or so:

[A] current ploy is simply to pretend that they are someone else (usually another law firm employee) and indicate the need for the ID/password for any number of reasons – a network threat they are working on or involvement in a compilation of IDs/passwords to be stored securely in the cloud to enhance (they say) security.

They may even pretend to be your IT provider and they need your credentials to counter an imminent threat that has just been discovered. A remarkable number of law firm employees will give up their credentials in their desire to be helpful to someone they presume to be legitimate.

Are we saps? Pretty much, based on the evidence.

What I really like about this LinkedIn post is that it’s a great demo of how to market expertise: Share it. Gy Tsakalakisi not tell people he is a marketing expert. He proves it. Smart lawyers like Greg Siskind have been doing this for years. Gyi shows the technique is still the best approach. Here’s the first part of the LinkedIn Post:

I’m regularly asked to share what’s working with respect to Google and legal marketing.

Here are some observations on a recent search for:

car accident lawyer near Philadelphia (from my location in Michigan).

First, notice the Google Local Services Ads listings (the three ads with pictures of the attorneys at the top of the page). They contain the ✅ GOOGLE SCREENED designation.

Notice also that two of the firms close at 5p and 6p. Hopefully, these firms are scheduling ads to run only during business hours. I can’t tell you how many times I see lawyers advertising that they’re closed!

Notice also that these ads list review scores and counts. If your Google Business Profile isn’t competitive with other advertisers in your area, you might want to reconsider allocating resources here.

You should also compare your years in business with other advertisers. While local services ads are pay-per-lead, you ought not to expect much volume if your ads aren’t competitive with respect to these ad features.

Next up are the Google Search Ads (the ads below the ads). While the first advertiser was smart to include years of experience in their ad copy, they’re serving an ad for a Michigan lawyer on a search for a Philadelphia lawyer. In my experience, this is unlikely to convert to a qualified potential client. This is a common targeting mistake.

The other Search Ads advertisers are using adjectives like “expert” and “top.” You should check with your state bar about using these types of adjectives. In many states, these are violations of the Rules of Professional Conduct that many marketers don’t know about.

[Rest of article omitted).

Certificates of Deposit with a 38% APY. Yeah, right.

Crypto nuttiness is going to end, probably soon. And with a bang, not a whimper. I encountered the sign pictured above touting a 38% APY on a walk in my neighborhood. It reminded me why collapse is inevitable. The flashing red lights are economic, historical and technical.

Epic Bubble or Distributed Ponzi Scheme?

The first and most obvious reason for the impending demise of crypto—and its bastard offspring, NFTs (non-fungible tokens)–is that they are the biggest speculative bubble since Dutch Tulip mania. Like tulips, bitcoins and other forms of crypto currency have no intrinsic value. They are not gold or pork bellies nor backed by the good faith and credit of any government. A sane person should be wary when multiple prominent economists, including multiple Nobel prize winners, say cryptocurrency has no intrinsic value whatsoever. One explains:

“It’s better if you’re a criminal, I don’t know why else.”

“The only advantage as far as I can see is you can be a crook,” he said. “You don’t want to leave any record. It’s not an accident that people who demand ransoms demand them in bitcoin. I’m not sure anyone else does.

Crypto is the biggest current example of the Greater Fool Theory. It’s based on the idea that you can make a profit even on a worthless asset, if you can only find someone else stupid enough to buy it. As noted by someone who should know, crypto and NFTs are “100% based on greater fool theory.”

I and as well as people who know much more than I about the underlying technology consider the crypto mania phenomenon to be a sort of distributed Ponzi scheme. There’s no central person or organization running the scam, just many people acting independently. Some people do make money on Ponzi schemes, but even if there is no actual fraud, losing your shirt is more likely.

Of course, when actual fraud is involved, you will lose your shirt even faster. The Federal Trade Commission reported that since the start of 2021, Americans have lost more than $1 billion to cryptocurrency scams, nearly 60 times the losses reported in 2018.

How can you identify a Ponzi scheme? A useful Wikipedia article provides some examples, including their tendency to “use vague verbal guises such as ‘hedge futures trading,’ ‘high-yield investment programs’, or ‘offshore investment’ to describe their income strategy.

Given this history, is it surprising that this particular crypto vendor advertisement guarantees “Immutable Code with 100% Uptime”? Most likely no one investing in this product understands what that is supposed to mean, let alone the technical aspects of the blockchain. It’s all just technobabble to them.

Why are so many otherwise intelligent people willing to buy into the bubble? A Financial Industry Regulatory Authority (FINRA) advisory provides a clue as to one reason: “[t]he con artists behind [HYIP-type Ponzi schemes] are experts at using social media — including YouTube, Twitter and Facebook — to lure investors and create the illusion of social consensus that these investments are legitimate.”

One interesting aspect of the crypto puzzle is that a significant number of the investors understand and tacitly admit that their investments are fundamentally unsound and fragile. They just believe they are so smart they won’t get hurt. They frequently explain “Crypto is a great investment, you just have to know when to get out.” Of course, this is just an implicit admission that they are relying on finding a greater fool just before the bubble collapses. It’s a form of personal fable, labeled by Psychology Today as Narcissism and the Myth of Invincibility.

There is another reason why so many people are vulnerable to the crypto scam: The power of wishful thinking. People see what they want to see, believe what they want to believe. When someone tells us there’s an easy way we could make a lot of money, there’s a tendency to convince yourself that what they are saying isue.

This ties into another fascinating aspect of the crypto scene. Significant number of investors who have been defrauded or otherwise lost large sums of money stubbornly continue to defend the scammers. A Michelle Singletary column quoted a classic example:

“I took out at least four loans from different banks to make sure the dream he was talking about, as a family, we were ready,” Victorin said. He still has faith in Alexandre.

“We believe in this guy,” Victorin said. “We believe in our CEO. He is a good guy, a great guy. And we never met somebody like that, very down-to-earth, very respectful, transparent with a lot of charisma.

I’m sure many crypto vendors have lots and lots of “charisma.”

We’ll go into more detail in later articles to explain the historic and technical reason for the impending demise of crypto, including the facts that:

  • “Unbreakable” encryption techniques (the basis for crypto) have historically proven to be quite breakable, and
  • Quantum computers will eat crypto for breakfast

Posted in our “Off the Clock” category:

Very glad to have my article Pitching the Difficult Case: Working With Prosecutors published recently at

The subject is related criminal prosecutions, an area of substantive law that I worked in at my pre-retirement “day job” working as counsel to inspectors general at multiple federal agencies. It deals with what I consider to be a key topic: How criminal investigators can work most effectively with prosecutors.

This new article contains more advanced ideas than The Art of the Referral, the article I co-authored previously with Bruce Sackman and Kelly Sisario. I hope it is as successful as the first article, which has been used as training material at the Federal Law Enforcement Training Center and the highly ranked John Jay College of Criminal Justice.

Which is better for lawyers, Facebook or LinkedIn? Kevin O’Keefe shares his opinion — fittingly enough, on Facebook. My view? A Facebook presence is essential, since it is the way many potential clients would find you, but Facebook is probably a significant marketing channel for only a few lawyers with particular personalities or niches.

Gyi Tsakalakis and Conrad Saam have some good observations about link-building in their Lunch Hour Legal Marketing podcast. Not exactly new if you have been working in this area, but will be super useful to many. Couple of highlights:

  • Internal links (a hypertext link to another part of your website) matter. Look for chances to use them.
  • Anchor text (the clickable part of a hypertext link) matters. Anchor text that says “click here” is useless.