For those of you who may be interested in exploring many of the issues of this blog in greater detail, I am co-chairing a day-long conference on social media and the law (helpfully titled “Social Media Law: New Issues Arising From Fast-Growing Business Models“) in Chicago on November 10, 2010, sponsored by Law Seminars International.  In addition to presentations from both me and my fantastic co-chair, Keith Medansky of DLA Piper, you will hear from in-house counsel at some of America’s most innovative companies, and top practitioners at firms around the country.  In any event, we’re quite excited about this (and CLE credit is available for those of you who need it), and we hope to see you there.

I don’t think its an exaggeration to say that Neuromancer (William Gibson’s groundbreaking science fiction noir) changed my life.  It probably changed your life too, whether you realize it or not. You see, Gibson imagined a world where we were linked by streams of information, through something he called “cyberspace.”  From this vision was born what became the modern Internet.  Add Neal Stephenson’s vision of virtual community in Snow Crash a few years later, and you have the basis for social media (of course, some folks prefer Vernor Vinge for their visionary science fiction, but we won’t complicate things for those of you who aren’t as big a geek as I am).  My favorite quote from Gibson still remains “the future is already here, it’s just unevenly distributed.”

In any event, a few months back Gibson blogged (yes, like everyone William Gibson has a blog) about how we’re completely jaded when it comes to the remarkable scientific advances that seem to roll through the news each day:

Say it’s midway through the final year of the first decade of the 21st Century. Say that, last week, two things happened: scientists in China announced successful quantum teleportation over a distance of ten miles, while other scientists, in Maryland, announced the creation of an artificial, self-replicating genome. In this particular version of the 21st Century, which happens to be the one you’re living in, neither of these stories attracted a very great deal of attention.

In other words, Gibson argues, we’re all suffering from “future fatigue,” in which everything gets flattened out, and things no longer feel quite so dramatic, so remarkable.

Advances in social media work like that too.  When we first entered the world of the Internet, the future felt like it was cascading on top of us in endless waves of constant innovation.  Now, the innovations come even faster, and in more dramatic fashion, but they’ve become so commonplace that we’re barely even aware of it.  It becomes much like the famous scene in The Blues Brothers, where Jake asks Elwood how often the EL train goes by their window.  “So often,” replies Elwood, “that you won’t even notice it.”

This is actually a problem for anyone trying to think about the legal issues that arise in the context of social media (or any technology-rich environment).  Today, unless you are really paying attention (and by really paying attention I mean that you are a 19 year-old college student, obsessed with social media, with unlimited time on your hands) it is nearly impossible to keep up with all of the changes and new ways in which we communicate with each other.  This makes it even more important to constantly check up on what your marketing folks are doing — you may not have even been aware that the new thing they’re doing even existed, let alone required an update to your privacy policy.  For many folks who work in a business with a social media focus (which means nearly all of them, these days) the changes that take place on your web site or on your other online platforms may seem incremental or minor when, in actuality, you’ve just become inured to the feeling of change.

This is why auditing yourself and your marketing practices regularly is so important.  The most important thing you can do in social media is to be aware of what you’re actually doing.  You may not be impressed with the new things you’re up to, but the “you” of ten years ago would be amazed.  So be impressed, and realize that some of the things you’re doing right now might actually be pushing the envelope, and may require some practical legal analysis.  Restoring your sense of wonder may be the most important step you take in protecting your business in the world of social media.

In the famous Seinfeld episode The Pool Guy, George Costanza panics when confronted with the prospect of one group of friends meeting his girlfriend, Susan.  He has successfully kept his relationships in independent silos, you see, and he has no idea how (or whether) they will mix together.   Hilarity, of course, ensues — his “worlds collide!” as he so aptly puts it — but in your own life, hilarity may not exactly be the result when different aspects of your life are suddenly placed in uncomfortable proximity with each other.

With the rise of social media, each one of us has a choice: either engage in strict social media hygiene (using one social media platform for friends, another for business) or be prepared for work colleagues to know everything about your penchant for extreme knitting and Powerman 5000.

This is not necessarily a good or a bad thing — and whether it is a positive or a negative in your own life may depend on a whole host of factors, including the type of job you have, the age of your friends and colleagues, and the type of extracurricular activities you engage in.  It is striking how — when speaking with young professionals in their early 20s — they cannot even imagine a world where work and social existence are separate.  They’ve never been adults in a world where you didn’t know what your friends and colleagues were up to.  The sheer quantity of texting, messaging, status updates and tweets in their lives is daunting, and they see no reason to place artificial limits on it.  Conversely, older professionals (even those who are tech savvy and quite comfortable with social media) are appalled at the notion that these worlds may ever overlap.

This generational difference in the ways of social media is likely to grow even more extreme in the years to come, as ever more social media intensive kids grow into adults with communication habits wildly divergent from what we’ve seen before.   Obviously, this represents an opportunity, but it also represents a danger — both for the companies involved, and the individuals who may be breaching trusts and duties without a second thought.

Thus, we should all consider how we engage with social media today — and not merely in the abstract, but in practice.  Who do we “friend,” and what type of person really reads our status updates.  Why are we saying what we’re saying, and do we really need to say it?  These can be uncomfortable questions, but they must be asked if we are to remain calm when worlds collide.

Legally Social spent this past weekend at Blogworld New Media Expoin Las Vegas, and can safely report (a) that the world of social media remains dynamic, forward thinking and intense; (b) that people in social media still don’t think about the legal ramifications of what they’re doing as much as they ought to, and (c) Las Vegas is profoundly amusing.

I live-tweeted a several panels (you can follow me @legallysocial) but for me the most important aspect of the conference was seeing the interaction between the old social media format (which was highly informal and largely consisted of bloggers talking amongst themselves) and the new paradigm (which is far more focused on commerce, marketing and co-branding).  Once upon a time, bloggers could joke about “taking the Boeing” as shorthand for selling out.  Now, the idea of “selling out” is preposterous, with the word “monetize” thrown around more often than any other word including “and” “the” or “a”.  Social media interaction is no longer thought of as a hobby for pajama-clad folks blogging from their basement; instead it is a sophisticated marketing tool used by the largest companies in the world (and the smallest) to develop dialogue with their customers. To be sure, the number of social media devotees focused on their hobbies and their lives remains large, but what is interesting is that this more informal world is now almost indistinguishable from the land of professional marketers.

This will lead, of course, to all sorts of interesting issues over the next few years, ranging from brand control and privacy to employment law and innovation.  But right now, we should all be pleased to witness the early stages of a new communications paradigm.  Web 2.0 is still less than a decade old (at most).  We have many years (and many more versions) yet to come.  It is an exciting time, indeed, and next year should be even better.

I’ll be appearing live on WGN TV’s 5:00 pm broadcast today to talk about social media, privacy, Facebook and all of our other favorite topics.  Be sure to check it out!

UPDATE: Here’s the link to the interview.

One of the many bromides of the early Internet age was that “information wants to be free.”  As an IP lawyer, it was difficult not to bristle at the idea when I first heard it.  Sure, data wants to be free — we can all agree on that.  But information?  That’s a bit more all encompassing.  Perhaps people want information to be free, because they don’t want to pay for it if they don’t have to, but it seemed strange to imply that the trend for all information (which came to be understood among the cool kids as “all creative content of any kind”) was towards valuelessness seemed, well, troubling.

Then, several years later, I heard the rest of the quote, and I realized that we were having the wrong argument.  It turns out that Stuart Brand (the man behind the counterculture bible, the Whole Earth Catalog, and an icon of the social media world through his creation of the early virtual community The WELL) had a much more sophisticated notion in mind back in 1984 when he was first quoted on this point.

On the one hand information wants to be expensive, because it’s so valuable. The right information in the right place just changes your life. On the other hand, information wants to be free, because the cost of getting it out is getting lower and lower all the time. So you have these two fighting against each other.

Now that’s more like it.  So what does this mean for copyright law and the value of content?

It means so many things that a single blog post could not possible contain them all — and we will certainly discuss many of these things in the weeks and months to come.  But one thing in particular is worth bringing up now: the value of content deals.  How can you possibly determine the fair value of content when the difference between exceptionally valuable information and commodity information is so difficult to parse?

I was reminded of this by an interesting tale of a content deal that never came to fruition.  Apparently, The Washington Post, seeking content to make its own site stickier, decided to start aggregating independent bloggers.  Fair enough.  But it turns out that they had an interesting suggested deal price: zero:

Every blogger signing the agreement is expected to participate in a blogger “discussion” initiated by Post editors or other bloggers at least once a week. Each blogger is also expected to stick to a “workflow plan” in which he or she will manage the other bloggers and submit extra material for a week on a rotating basis. In return for this commitment, the bloggers receive… absolutely nothing.

Of course, not only was the deal never consumated, but the aggreived blogger then went public.  The Postassumed that bloggers were still so desperate for attention that they would gladly agree to share content for free, and do additional tasks for free.  Apparently, they didn’t hear the other half of Stewart Brand’s quote: information can get more expensive just as it can become free.  Several years ago, most bloggers would have killed their friends to get on The Washington Post’s web site, even for free, and they’d have taken in Sally Quinn’s dry cleaning as well.  But in our social media intensive world, bloggers can now realize independent value of their own, and feel comfortable pricing their efforts.  Their random obsessions and insights are no longer viewed (by the public or by the bloggers themselves) as valueless — and in fact many of them currently have a profitable existence at a variety of publications. 

So what does all of this mean?  It means that content should not be devalued simply because of the fact that it appears in electronic space, and it also means that content should not be seen as overly valuable for the same reason.   Just as folks used to believe that porting any idea from the Bricks and Mortar world to e-commerce would suddenly create a viable business, many folks attach far too much cache to ideas simply because they are “social media” ideas.  Content should be valued on its own merits, rather than subject to preconceived notions of aggregate worth. 

Stuart Brand is a smart guy, and we need to make sure that we listen to the entirety of what he had to say all those years ago.  Underpaying and overpaying for content, after all, are merely symptoms of a failure to pay attention.