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A relatively recent phenomenon called blogging now gives just about anyone the ability to become a publisher with the power to circulate just about anything from random streams of consciousness to political editorials to industry-specific information, and more. Given the tremendous number of people writing blogs, it is no wonder that bloggers are starting to confront issues that routinely confront more traditional publishers. Earlier this year, Apple Computer filed a trade secrets lawsuit in California’s Santa Clara County Superior Court against a 19-year-old Harvard University student named Nicholas Ciarelli. He operates a blog called ThinkSecret.com, where he’s published fairly accurate reports of new technology before Apple released it to the public. According to the suit, since the only way that Ciarelli could obtain the information was through sources at Apple, Ciarelli disclosed Apple’s trade secrets. As the Internet developed to the point where almost everyone could publish a Web site, it was only a matter of time before the Web became a publishing medium for the masses. Now blogs give just about anyone with a Web browser the ability to be a publisher. The term “blog” itself derives from “Web log.” These originally were the equivalent of an online diary, where the diary owner — the blogger — could write and post diary entries. As one might expect with technology, blog software typically provides bloggers with a host of organization and retrieval features, including the ability to categorize daily entries and to search for past entries using typical word-search features. As blogs have grown in popularity, blogging software has become increasingly sophisticated. Much of the blogging software available today is simple enough that even computer novices can quickly install and operate their very own blog. For those who do not wish to be bothered with the details of installation, there are blog hosting services that, for a monthly fee, will install and maintain your blog. While blogs were originally intended to be online diaries, their use quickly expanded beyond personal diary entries. During last summer’s Olympics in Greece, NBC News correspondent Kerry Sanders used a blog to report on the Olympics. Writing from his Blackberry, Sanders was able to write reports and post them to a blog in real time. Based on some of the e-mails Sanders received — which he included in his blog and which are currently posted on MSNBC’s Web site — the public enthusiastically embraced the blog reporting from Athens. The reception Sanders’ blog received from the public is consistent with recent surveys relating to blog usage. According to a recent Internet survey reported in the Tallahassee Democrat, 8 million Americans write blogs. First Amendment attorney Terry Gross of Gross & Belsky in San Francisco, who agreed to represent Harvard student Ciarelli on a pro bono basis, has characterized Apple’s lawsuit against Ciarelli as a means of intimidating a college kid. In an interview, Gross said that under U.S. Supreme Court rulings, “journalists can’t be prohibited from publishing material if it’s lawfully obtained.” Ciarelli, who is an editor at Harvard’s student newspaper, defends his newsgathering and reporting practices. In comments that appeared in the Harvard Crimson newspaper, Ciarelli says, “I employ the same newsgathering practices used by any other journalist. I talk to sources of information, investigate tips, follow up on leads and corroborate details.” While Ciarelli’s case is likely to advance our understanding of the First Amendment’s protection afforded all publishers, not all bloggers have sought such controversy. Some lawyers are using blogs to provide information to other lawyers. For instance, Foley Hoag attorney John Welch operates The TTABlog, which reports information about the Trademark Trial and Appeal Board of the U.S. Patent & Trademark Office. In his blog, Welch reports on new cases and decisions from the TTAB. Similarly, Chicago-based patent attorney Dennis Crouch operates Patently-O: Patent Law Blog, which is dedicated to patent law. As blogs become increasingly popular, and as courts begin to wrestle with the legal issues associated with the public at large becoming publishers, publishing will never be the same. Samuel Lewis is a partner at FeldmanGale in Miami where he practices computer, Internet and intellectual property law. He is also an adjunct professor of law at Nova Southeastern University. He can be reached at [email protected]

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