Document Behaviors

With my use of wikis and the adoption of wikis at The Firm, I have been focusing a lot of attention on the behaviors towards documents. After all, a wiki page is just another type of document. When producing documents, I have noted five types of behaviors: collaborative, accretive, iterative, competitive and adversarial.

Collaborative
With collaborative behavior, there are multiple authors each with free reign to add content and edit existing content in a document, and they do so.

Accretive
With accretive behavior, authors add content, but rarely edit or update the existing content. Accretive behavior is seen more often in email than documents. Each response is added on top of the existing string of information with no one synthesizing the information in a coherent manner. I have seen this in wikis as well where people will add content but not edit others content.

Iterative
With iterative behavior, existing content is copied to a new document. The document stands on its own as a separate instance of content. The accretive behavior is distinguished from the iterative behavior by the grouping of similar content together. With accretive behavior the content is being added to the same document, effectively editing the document. With iterative behavior, the person creates a new document rather than adding to an existing document.

Competitive
With competitive document behavior, there is a single author who seeks comments and edits to the document as a way to improve the content. However, interim drafts and thoughts are kept from the commenters. The transmission of the content to a client or a more senior person inside the firm will result in a competitive behavior.

Adversarial
Adversarial behavior is where the authors are actually competing for changes to the content for their own benefit. Although there may be a common goal, the parties may be seeking different paths to that goal or even have different definitions of the goal.

Collaborative, accretive and iterative content production are largely internal behaviors. Competitive and adversarial are largely external document behaviors. Of course, a document may end up with any or all of these behaviors during its lifecycle.

I have an article coming out in KM Legal and Inside Knowledge magazine that further discusses these behaviors in more detail and in the larger context of wikis and document management systems.

DocStoc Redux

A few weeks ago I posted my review of DocStoc, a user generated community where you can find and share professional documents. My biggest complaint was that it was full of amateurish information and copywritten materials. DocStoc was sponsoring a contest for who could post the most documents. There was a flood of documents. One winner published more than 20,000 documents. But the focus was on quantity, not quality.

DocStoc changed their course and are now having a contest for the best quality document uploaded each day. That sounds like a much better goal.

I created a DocStoc account and uploaded some documents. Here is my account profile.

But what's in it for me? Why should I contribute documents and maintain my documents?

I keep looking for functionality that would make it easier to categorize and maintain my documents and other documents that interest me. DocStoc would be more useful if it offered features and information that I could not easily find elsewhere. I was hoping that DocStoc offered at least some basic document management features. If I worked in a small firm, I might want to use DocStoc to host my form documents. And maybe I would want to combine my forms from others that I found useful. DocStoc could have a been a better place to host this over my hard drive or a shared file server.

DocStoc does not offer much in the way of document management features. I can't edit the document once its in there. I can't even delete any of my documents.

With any knowledge management project, enterprise 2.0 project or web 2.0 site, I believe you need to focus on giving the person a useful tool, rather than having the focus on the collective good that comes from using the tool. People should use the tool because it is useful for them individually. Not because they can win an iPod if they use it the most. You need to be able to answer the questions: "What's In It For Me?"

With DocStoc, it could be a wonderful tool if people contributed and maintained their best documents on the site. There is a lot of collective good. But for me as an individual user, the tool does not provide me personally with much benefit. There is not much in it for me.

DocStoc Disaster

I saw DocStoc a few weeks ago and dismissed it. It seems to gathered a little more traction since the post by Matt Homann on the [non]billable hour: A You-Tube for Legal Docs? Check out DocStock.

Matt calls it the "You-Tube of legal documents." I think that it a correct assessment since I found it to be full of amateur information and copywritten materials.

For instance, I pulled up the Real Estate Purchase Contract. It is clearly stolen from the California Association of Realtors form of Purchase Agreement and Escrow Instructions. Copyright violation

I went on to the form Promissory Note. That one is embarrassingly bad.

Most of the posters are anonymous or an avatar. (I found the prolific FreeRealEstate person.) that does not give you any confidence in whether the agreement maybe good or bad. They are running a promotion that gives away an iPod Touch to the user who uploads the most documents each week. That is a great way to create quantity, not quality. I found an iPod winner in Farhan Khan who uploaded over 20,000 documents. It looks like he also just uploaded his hard drive. I do not know him, but I am not going assess any value to someone who uploaded that many "professional documents" and just finished his MS in computer science this year.

Copyrights in Legal Documents

I just finished readig an article by Thomas J. Stueber in The Internet & Copyright Lawyer: Due Diligence in Drafting: Copyrights in Legal Documents.

He takes that position that just about everything created by lawyers in the ordinary course of their practice are, for copyright purposes, "literary works." Artistic merit is not a determination of whether something is protected by copyright. It nearly need to have "some creative spark, no matter how crude, humble, or obvious." Feist Publications, Inc. v. Rural Telephone Services Co, 499 U.S. 340 (1991).

A lawyer who rewrites a document creates a derivate work. Creating a derivate work without permission is copyright infringement.

Employees creating copyrightable work during the course of their employment are creating works for hire, which vest the copyright in the employer. So the law firm owns the copyright for the lawyer’s original work. Or for in-house counsel, the company holds the copyright. In most cases, the lawyer is an independent contractor for the client, so the client does not hold the copyright.

If an attorney switches law firms, the copyright stay with old law firm by default. In taking forms and precedents with you, even those you drafted, you could be infringing on the copyright.

If the substantial portions of the document are from pre-existing sources that you did not draft yourself, the document may not be sufficiently original to be copyrightable.

I think most transactional documents have been passed around and collaborated on across firms that it would be difficult to prove that sufficiently original to be copyrightable.

Some legal briefs may be original enough. Milberg Weiss has tried to enforce a copyright on its pleadings. Milberg Weiss Tries to Nail Class Action Imitators

Best Efforts vs. Reasonable Efforts

Ken Adams, author of A Manual of style for Contract Drafting, published this article in The Practical Lawyer: Understanding Best Efforts and Its Variants.

I particularly liked his chart of the different "effort" phrases used in contracts filed with the SEC in 2004: