March 19, 2025
As you may be aware from LinkedIn or something more one-on-one (a text, a phone call, gossip over a latte), effective March 1, 2025, the separate firms of Trachtman & Trachtman and Poler Legal have merged to form Trachtman and Poler. Together, we (Laura Trachtman and Emily Poler) will continue to represent clients in a range of commercial disputes, with an emphasis on partnership and intellectual property disputes and employment-related matters. There are a number of reasons we decided to boldly enter this new era, but mostly because working together will be better for us and, more important, better for our clients.
We’ve been setting up this merger for awhile and, as you may imagine, a lot of thought and energy has gone into it. Each of us has already learned a few things in the process, and we anticipate finding out even more as we move forward. So this seems like a propitious time to share a little bit about the good and the bad (luckily, not much ugly here) of how it went down.
Emily: For me, the hardest thing has been juggling creating a new firm while also handling all of my day-to-day legal work. When I started Poler Legal in 2017 there was so much I didn’t know about operating a firm, but since I didn’t have many clients there was plenty of time to get organized and learn as I went along. Now, I have a whole slate of clients, each with their own requirements and deadlines. So trying to put together a new firm while also handling active cases felt like trying to build an airplane while flying it at the same time. I realize this is a champagne problem; I’m also quite thankful the plane didn’t crash!
I’ve also been unpleasantly surprised by how hard it is to make the various tech platforms we individually use to work together. Setting up or reconfiguring accounts is so much harder than it should be. Syncing Clio, which tracked time for each of us separately prior to the merger, was far from a seamless process. And don’t get me started on Google, which is really a PITA as far as setting up a new email account so that it becomes the primary one. Champagne problems one again, but still.
On the other hand, having someone to partner with is GREAT. The best thing is that I now have someone who can serve as a gut check. As a litigator, my job is to take a position on behalf of my clients; it’s opposing counsel’s job to tell me my stance is wrong, unsupported, or just plain stupid. It can sometimes be hard to tell if they have a legitimate point or not. Now, Laura can provide an objective perspective and point out when I’m right and when (once in a rare while, I hope) I need to rethink my position.
Most of all, I am thrilled that after years of shouldering the burden alone for everything related to running a law firm (which, never forget, is also a business), I now have someone with whom to share the responsibility. It’s a fantastic feeling and an enormous relief.
Laura: The hardest aspect of this merger has been the 180-degree shift from how I worked before with my law partner and mentor — my Dad — who had taught me to take any case that came down the pike and learn to do it well. Such a reactive approach could be frustrating, as I sometimes found myself practicing in areas I didn’t particularly enjoy. When I started discussing partnering with Emily, and we outlined our plans for where we want this firm to go, it quickly became clear I needed to reshape my thinking and take a much more proactive approach to the type of work I want to focus on. While this means putting in more effort at the beginning, I think it’s going to result in a practice that makes me a lot happier with the work that I do — which will make me happier, full stop.
I’m also trying to be more proactive in developing content for this blog and LinkedIn. Again, this isn’t something I did previously — my suggestion to my Dad to write a legal blog was not met with approval — but I certainly enjoy it, so I look forward to it.
In the end though, the best thing about this merger is having someone to encourage (but not pressure) me to put in the work that will help our firm succeed. Moving from a reactive to proactive business model makes obvious sense, and I am grateful that Emily has so much knowledge and experience of it, and is generous with her time and energy to help bring me up to speed.
The other best thing is that being a solo practitioner can be isolating and stressful, so it’s such a liberating feeling knowing that the success of the firm is not all on me. It’s also pretty great having someone I trust who I can actually talk to about all the big and little issues that arise everyday in this legal game.
It’s a new era for both of us and we are both very excited for everything that is to come.
March 5, 2025
I’ve written a number of posts about data scraping because it’s a big deal right now. Initially, I was interested in the issue because it was pretty clear that AI companies such as OpenAI engaged in widespread extraction of data from other companies’ websites (i.e., scraping) to collect materials to create their generative AI platforms. More recently, my interest has shifted to focus more on the extent to which social media companies are trying to use their terms of service to limit or prevent others from collecting and selling their users’ data.
The interesting wrinkle: the social media platforms don’t actually own their users’ content.
First, some background: In case you’ve never thought about it (and there’s no reason for this to cross most people’s minds), when you sign up for an account on a social app like LinkedIn or X and agree to its terms of service, you give the platform a license to use your content. Generally speaking, this means that you give it the right to display, reproduce, distribute, and adapt your posts.
Why does this matter? Because the copyright to any posts vests in their creator (you) and without a license, a social media company would have to pay the creator (you again) each time a post is reproduced or displayed on the platform. The licenses users grant social media companies are non-exclusive and do not give them “ownership” over posts; they only allow the social media companies to publish the posts.
This is important for a couple of reasons. First, it gives social media platforms safe harbor from civil liability under Section 230 of the Communications Decency Act. This protects them from being sued for defamation and the like based on a user’s posts. Second, it means that the original creator retains ownership of the posts. Despite this, and as will surprise no one who has been alive over the last 20 years, social media platforms have tried to assert as much control over users’ posts as possible — often, far beyond what is actually permitted by law. And the Courts have started weighing in on this.
In a 2022 case brought against LinkedIn by a competitor that scraped LinkedIn’s data, the Ninth Circuit observed that “giving companies like Linkedin free rein to decide, on any basis, who can collect and use data — data that the companies do not own, that they otherwise make publicly available to users, and that the company themselves collect and use — risk the possible creation of information monopolies…”
More recently, a company called Bright Data Ltd. had been sued by both Meta Platforms, Inc., and X Corp. In those cases, the social media platforms alleged Bright Data violated their respective terms of service by scraping Facebook and Instagram and X and selling the information gathered to third-parties.
In neither case was the Court particularly impressed with the plaintiffs’ arguments that Bright Data should not be able to scrape their social media platforms.
In the Meta case, the Court found that Facebook’s and Instagram’s terms of use did not apply because Bright Data was not logged into an account on either when it engaged in scraping and/or had deleted its accounts before engaging in any scraping. The Court thus rejected Meta’s arguments and granted Bright Data’s motion for summary judgment.
And in the case brought by X, the Court found that X’s claims that data scraping breached its terms of use impermissibly conflicted with the Copyright Act. The Court held that “X Corp. would upend the careful balance Congress struck between what copyright owners own and do not own, and what they leave for others to draw on. In addition to giving itself de facto copyright ownership in copyrighted content that X users designated for public use, X Corp. would give itself de facto copyright ownership over content that Congress declined to extend copyright protection in the first place (e.g., likes, user names, short comments)…” As a result, the Court dismissed X’s lawsuit.
We’ll see where social media companies go in their efforts to try to keep as much of their users’ data for themselves (and their AI platforms), but the Courts have made it clear there are limits — as of now, third-party scraping of social media can continue.
February 19, 2025
As the lawyers reading this know, media giant Thomson Reuters has a proprietary online research database called Westlaw. In addition to hosting cases and statutes, Westlaw also includes original material written by Westlaw editors. A recent decision involving that original content and its use by Ross Intelligence, a potential Thomson Reuters competitor, to create an AI-powered product may provide a bit of a roadmap on fair use and other issues facing the courts considering cases against OpenAI, Perplexity and other generative AI platforms.
First, some background: while the bulk of Westlaw’s content — statutes, rules, ordinances, cases, administrative codes, etc.— are not subject to copyright protection, Westlaw editors concisely restate the important points of a case with short summaries. Each is called a Headnote. Westlaw organizes Headnotes into something called the West Key Number System, which makes it much easier to find what you’re looking for.
This case began when Ross asked to license Westlaw’s Headnotes to create its own, AI-powered legal research search engine. Not surprisingly, Thomson Reuters didn’t want to help create a competitor and said no.
As a workaround, Ross hired a company called LegalEase, which in turn hired a bunch of lawyers to create training data for Ross’ AI. This training data took the form of a list of questions, each with correct and incorrect answers. While the lawyers answering these questions were told not to simply cut and paste Headnotes, the answers were formulated using Westlaw’s Headnotes and the West Key Number System. LegalEase called these “Bulk Memos.”
Thomson Reuters was none too happy about this and sued Ross for, among other things, copyright infringement, claiming that “Ross built its competing product from Bulk Memos, which in turn were built from Westlaw [H]eadnotes.” In its defense, Ross claimed that Westlaw’s Headnotes were not subject to copyright protection, and that to the extent it infringed on Thomson Reuters’ copyrights, its use constituted fair use.
In 2023 the Court largely denied Thomson Reuters’ motion for summary judgment, ruling that, among other things, the question of whether Headnotes qualify for copyright protection would have to be decided by a jury. The Court, however, subsequently had a change of heart and asked Thomson Reuters and Ross to renew their motions for summary judgment. Earlier this month, the Court ruled on these renewed motions.
Of note, the Court found that at least some Headnotes qualified for copyright protection, as did the West Key Number System. On the Headnotes, the Court found that the effort of “distilling, synthesizing, or explaining” a judicial opinion was sufficiently original to qualify for copyright protection. The Court also found the West Key Number System to be sufficiently original to clear the “minimal threshold for originality” required for copyright protection. The Court further found that the Bulk Memos infringed on some of the Headnotes.
The Court also rejected Ross’ assertion of fair use. Its decision was based largely on the fact that Ross was using Thomson Reuters’ Headnotes to create a competing product. Here, the Court looked at not only Thomson Reuters’ current market, but also potential markets it might develop, finding that since Thomson Reuters might create its own AI products the Ross product could negatively impact the market for Thomson Reuters, which weighed against fair use.
The Court was not impressed with Ross’ reliance on a line of cases finding copying of computer code at an intermediate step to be fair use. Here, the Court noted that Ross was not copying computer code. Moreover, in those cases, the copying was necessary to access purely functional elements of a computer program and achieve new, transformative purposes. In contrast, Ross used Headnotes to make it easier to develop a competitive product.
Ultimately, these conclusions are most interesting because of what other courts hearing AI infringement cases may take from them. Sure, there are differences (notably, Ross doesn’t seem to be using generative AI), but this case highlights some of the legal and factual issues we’re going to see as other cases move forward. In particular, I think the fact that the Court here found that the process of summarizing or distilling longer cases into Headnotes renders the Headnotes subject to copyright protection may be problematic for companies such as OpenAI, which has tried to claim that it is only ingesting underlying facts from news articles. If creating Headnotes is sufficiently original to qualify for copyright protection, then it seems likely that a reporter selecting the facts to include in a news article is also sufficiently original.
Stay tuned. There is much, much more to come.
February 11, 2025
And this week, it’s DeepSeek. Every few days it seems there’s something new dominating tech headlines, and since right now it’s the low-cost, low-energy Chinese AI roiling world governments and markets, I thought I’d use this week’s post to take a look at some portions of DeepSeek’s Terms of Use (ToU). Of course, keep in mind nothing I write here is legal advice and, as I’ve covered at greater length previously, there’s a whole lot of uncertainty about the rules governing the creation of large language and diffusion models, as well as their outputs. But that doesn’t mean there’s not a lot to chew on already.
With that disclaimer out of the way, I’m going to start with something that’s rather mundane, but where litigators’ minds tend to go right off the bat: forum selection. For the non-attorneys out there, that’s where a lawsuit against DeepSeek would have to be brought. What do DeepSeek’s ToU say? “In the event of a dispute arising from the signing, performance, or interpretation of these Terms, the Parties shall make efforts to resolve it amicably through negotiation. If negotiation fails, either Party has the right to file a lawsuit with a court having jurisdiction over the location of the registered office of Hangzhou DeepSeek Artificial Intelligence Co., Ltd.”
In other words, if you want to sue DeepSeek, you have to do so in China. This is not atypical — technology companies generally include favorable forum selection clauses in their ToU — but from an American perspective, this will make it hard or impossible for most US-based DeepSeek users to sue the company in the event of a dispute.
More disturbing is section 4.2 of DeepSeek’s ToU: “Subject to applicable law and our Terms, you have the following rights regarding the Inputs and Outputs of the Services: (1) You retain any rights, title, and interests—if any—in the Inputs you submit; (2) We assign any rights, title, and interests—if any—in the Outputs of the Services to you.” Sounds benign, right?
Nope. What it really means is if DeepSeek decides a user has violated its ToU (or Chinese law), it could unilaterally decide that the user has given up rights to its materials and/or the rights to use output from DeepSeek. This means DeepSeek could use this provision to claim ownership over the material users put into DeepSeek, or could sue a user who includes output generated by DeepSeek in any of their own commercial activities. People and organizations will have to make their own calls about whether this is an acceptable risk but, on top of the fact that any user who thinks their rights have been improperly rescinded would have to seek legal recourse in a Chinese court, this seems, um, bad.
I should also mention that the privacy and national security concerns involved in using DeepSeek are well above my pay grade — but I’d love to hear your thoughts on them. I’m particularly curious what privacy attorneys think about the provisions around the platform’s use by minors (“DeepSeek fully understands the importance of protecting minors and will take corresponding protective measures in accordance with legal requirements and industry mainstream practices”); and reports that a DeepSeek database containing sensitive information was publicly accessible. Neither the vague language on the protection of minors nor DeepSeek’s failure to protect its information inspires confidence. But I’m not a privacy lawyer so maybe I’m missing something.
Lastly, one especially amusing thing has come from the DeepSeek splash: OpenAI (creators of ChatGPT) has publicly accused DeepSeek of using its output to train DeepSeek’s AI, complaining that it is a violation of OpenAI’s terms of service. Ha! OpenAI, of course, is currently embroiled in several copyright infringement lawsuits (which I’ve covered here) with the New York Times and others over OpenAI’s use of their content to train its algorithms (and presumably compete with them). Oh, the irony.
January 21, 2025
As you know, I’m interested in business development and am always looking to learn more. In search of new ideas and inspiration, I Googled “lawyer blog on business development.” Yikes!
On the bright side, one of the first things that came up was this worthy blog, which I routinely read. But after that it was pretty much a wasteland of cliched blather: Develop a network; have a personal brand (can we please retire this phrase?); maintain good relationships with clients; and, inevitably, be a thought leader! (another phrase I am so over).
Pretty empty stuff, right? If anything, I think the fact that so many people serve up the same trite advice proves that none of them actually possess a personal brand or provide thought leadership (is there an emoji for irony?). More importantly, none of these bloggers ever tell you much about how to do these things they suggest. Obviously, these people are trying to sell their services and don’t want to give away valuable advice. But why would I be confident they actually have any?
What’s more, such vague banalities make the reality of business development seem more mysterious and daunting than it actually is. So let’s see if we can simplify things with some real lessons from my own experience that I feel define the building blocks of business development.
I’ve learned that the origin point is to give serious thought to a few questions: Who are you? What exactly do you want to do? How do you want to communicate that? Who do you want to work and network with? That foundational work needs to happen before you hire a marketing, PR or social media person — or to at least take place from the get-go with any hires. I say this as someone who spent good money on a marketing consultant with bad results, partly because we hadn’t answered these questions at the start.
Perhaps the most important of those questions is, what exactly do you want to do? When I started my firm I worked on a very broad range of cases and matters, basically taking whatever came my way. Guess what? I ended up working on things I had absolutely no interest in. (I am 100% fine if I never, ever handle another ERISA matter). So why did I do it? Well duh, the idea of turning down a client for my brand-new practice was terrifying. But when I eventually started saying no, my work (and my life) became much more satisfying. I avoided cases that didn’t interest me and didn’t waste energy dealing with people I didn’t want to work with. That freed me to take on interesting cases and work with people I was happy to represent. Plus, it left me time to further refine my skills and deepen my knowledge of the substantive legal areas that I wanted my practice to focus on.
Another problem with taking on work you don’t want: Such cases lead to meeting people, like co-counsel and opposing counsel, who work in those areas. They get to like you (that’s nice!). They think of you when something comes up they could refer to you (also nice!). But then you end up with more cases you don’t want (not nice). So it becomes something of a vicious career circle.
Once you know what type of work you want to take on, the next step is determining what clients you’re open to working with. Me, I have a strict “no assholes” policy. Litigation can be a very difficult, frustrating and draining experience, and if I get even a hint that a potential client is going to vent their anger with the process on me or my team, they will need to find another firm. Likewise, if a potential client comes to me after having been fired by another attorney, I’m not taking them on — no matter how much they’re willing to pay. It’s just not worth the possible stress. Ultimately, picking who I work with and what I work on makes it easier for me to do good work, which means the clients are happier, I’m happier, and the chances that more of the work I want will come my way increases exponentially.
I have a similar attitude when it comes to my network of peers and contacts in the legal community. I associate with people I like, who I respect, and who share my general ethos. That way, when I refer potential clients to someone I trust, I know that client will be treated well. And when I get referrals from peers I know well, I have some assurance the potential client and I are right for each other.
Speaking of networks, one thing I’ve learned over the years is that having a network is a lot more than a pile of business cards from people I met at some conference and then never spoke to again. How, exactly, is that a network? To me, a network is an array of professional contacts I enjoy regularly staying in touch with (and I’m not talking about through Instagram or TikTok). Having real relationships with people helps you all grow your businesses, your knowledge and, most importantly, your joy in what you do.
And in the end, enjoying what you do is the single most important litmus test for business development, because if you’re happy in your work, you’re developing your business right.
