Coast-to-Coast Produce Train

Here's something from the Albany Times Union about a new coast-to-coast produce train linking Walula, Washington and Rotterdam, on the western end of Schenectady, New York.

Produce train arrives ahead of schedule
Express from Washington state to Rotterdam carries as much as 200 trucks

ROTTERDAM -- The inaugural run of an express produce train from Washington state apparently occurred without a hitch over the weekend.

The first train, due in Rotterdam today, arrived Sunday, a full two days ahead of schedule. Union Pacific Railroad and CSX Transportation jointly operate the train for Railex LLC, a unit of Ampco Distribution Services LLC of Riverhead, Long Island.

. . .

The first train carried potatoes, apples and onions, as well as a few cases of pears. The produce trains will use less fuel than the 200 trucks needed to move the same amount of produce, Railex officials have said.

What the article doesn't say and what I wish I knew was how much faster, if at all, the rail service is. Using less fuel is great, but unfortunately our current distribution system values time more than efficiency. The fuel efficiency of rail has always been true. What's new is the coordination (or elimination) of stops and transfers to make the coast-to-coast trip as quick as possible.

Still, it's good to see some investment in this type of transportation.

Is Blogging Advertising?

Leigh Jones at the New York Law Journal has a recent piece on blogging, this time from the perspective of law blogs and whether they constitute advertising.

Many states, such as New York, are in the process of revamping their attorney ethics rules, and part of that process involves the prickly issue of whether blogs should be regulated as advertising. On the one hand, states want to protect consumers from unscrupulous lawyer advertising presented under the guise of an online diary. On the other, they want to preserve the free flow of ideas -- and valuable legal information presented in a public forum -- that the new technology has fostered.

Fair enough.

New York is reviewing its lawyer advertising rules, and some of the proposed changes are making bloggers nervous. In trying to formulate rules to encompass everything from print ads to Internet pop-ups, the state's four presiding justices last spring broadened its rules on lawyer advertising. The state has delayed implementation of any changes until after a comment period, which was extended last month. The changes would pertain not only to New York firms, but, significantly, to out-of-state attorneys advertising in New York. Part of the concern is that the proposals pertain to "written advertisements and solicitations and computer-accessed communications." Such a definition, say some observers, could include blogs. If so, the rules, which propose, for example, a requirement that law firms file their advertisements with a disciplinary committee for public view and scrutiny, could stifle blog dialogue.

I wonder what public policy could be served by a filing requirement that requires someone to file something that is available publicly? A registration requirement might be more straightforward. The disciplinary committee could easily develop a software application to automatically scan the registered blogs periodically for words or certain combinations of words that could raise red flags. New York's ethical police like to pick on terms like "expert" or "specialist," and those could easily be flagged by a spider for follow up by a live person.

Wilson Sonsini Goodrich & Rosati partner Catherine Kirkman publishes the Silicon Valley Media Law blog, which is referenced in her biography on the firm's Web site. The blog covers recent decisions pertaining to media law and includes resources and observations about the practice area. Ms. Kirkman sees her blog as a means of publication rather than advertising. "I really haven't looked at it through that lens," she said. "It's a way to participate in the community and be a resource in terms of analyzing cases."

Sorry, I don't buy that for half a second. As a private sector practitioner for ten years, I can say without hesitation that for a lawyer in private practice, publication is advertising. You cannot pick up an advice piece about marketing without reading about what a benefit publication is.

Incidentally, prominently at the top of Kirkman's blog, right next to her picture, is a link to "About Cathy," where you can learn about her prior work experience and the fact, touted in bold, that Cathy has "extensive expertise in digital media, copyright and Internet law." Therewith follows extensive name dropping, including listing Google, Lucasfilm, Napster, InfoSpace (Moviso), Fox Family Music, FoxKids.com, and "Bad Boy Technologies (P Diddy)" as clients, and many, many more. Just under that is a link to "Legal Services" where visitors can read about the 33 different kinds of legal services Cathy can provide (not an exhaustive list), and just under that is a link to "Contact Cathy."

So, let's boil that all down: Who she is. What she does. How to reach her.

Hmm. Sure smells like advertising to me, all disclaimers to the contrary.

"We should market ourselves in a way that does not demean the profession,"
[said Ernest Svenson, a blogger better known as Ernie the Attorney.] "Most
bloggers are going in that direction."

Agreed. And Ms. Kirkman's blog is one good example. A quick review of the posts gives the impresssion that they refer to current, relevant, and important topics. I am not into media law, but if I were, I'd probably drop in from time to time. At the same time, you can't convince me it's not advertising.

Or, at the very least, you can't say that the blog as a whole isn't advertising. You might be able to cut a fine distinction between the biographical information and practice description, which are clearly advertising, and the blog entries themselves, which are less clear cut. Isolating any one post, you could look at it and say, "not advertising."

But how to distinguish between the two? Perhaps we can borrow from Supreme Court Justice Potter Stewart's famous standard for describing hardcore porn: (to paraphrase) I can't define it, but I know it when I see it.

Blogging on the Job

There's an interesting piece in the September 7 New York Law Journal about blogging at work. Here are some interesting outtakes:

Many corporate executives still seem a little confused about exactly what [blogs] are. Only 30 percent of senior Fortune 1000 executives in a recent telephone survey reported having a thorough understanding of the term "Internet blog."

A short while later we learn a little about how these executives know about blogs:

Twelve percent of the recently surveyed Fortune 1000 executives reported taking legal or other action in response to a blog. There is even a term on the Internet for getting fired for a blog, "dooced," taken from the name of the blog www.dooce.com.

The urbandictionary supports this claim.

Squirreled away in the article, which is written to assist employers in figuring out how to handle blogging employees, are a couple of gems that might be of interest to the bloggers themselves:

Some employers might be tempted to adopt a blunderbuss approach by simply banning all blogs, all the time. Employers subject to New York law should be aware of the limited protection for "legal recreational activities" under §201-d of the Labor Law.

Unlike most states . . . New York also prohibits employers from terminating employees for engaging in "legal recreational activities outside work hours."

And apparently there is help for bloggers at the federal level too:

Employers should also understand that federal labor law may protect some blogging content. The National Labor Relations Act protects certain "concerted activities" by employees, whether they are members of a union or not. An employee fired for the content of his or her blog could file an unfair labor practice charge under 29 USC §158, alleging that the firing was a result of such activity. "Concerted activities" do not have to involve a union and may be based upon the acts of a single employee when carried out with or under the authority of other employees, and not solely by and on behalf of that individual employee. Concerted activity includes actions to initiate, induce or prepare for group action.

But is it the beginning of the end?

While bloggers like to consider themselves outside what they call the "Mainstream Media" of newspapers, magazines and television, the blog is growing more mainstream every year. The New York Times, for example, has recently begun encouraging many of its reporters and columnists to publish blogs on its web site, where they engage in expanded discussions on issues addressed in their articles and columns, and even has a section called the "Opinionator," which samples comments on various outside blogs.

Gaaa. Here I had been feeling good about stepping onto the cutting edge of the web, only to find out I'm just as mainstream as the Old Gray Lady. Oh well.

As to blogging at work, the snippets are encouraging, but for the nonce I'll stick to doing this on my own time.