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March 30, 2005
Subject: What a windmill!

Yowza! A tale of great fortitude tested, and great effort finally rewarded. Not as well as it should have been, but that's the way of the world, eh?

As a marketing consultant (12 years in retail, 4 in professional services, chiefly legal marketing), I find it astounding that lawyers and law firms don't understand even the absolute basics of marketing and relationship building.

If Ms. Greenberg had, instead of focusing on narrow legal issues and a, "They must lose in order for us to win" mentality, she could have served up her client a lovely piece of PR. Had I been Taubman's marketing consultant, and had I known about his issue with you early on, I would have advised that he get together with you and make you some kind of unofficial "Community Webmaster." How good would it look in the paper to have a picture of Taubman hunkered over your desk while you showed him how you were working – as a volunteer – to provide people of your community with info about his new mall? How cool would it have been for him to say stuff like, "Hank Mishkoff's excitement about our new mall is infectious! He gets more hits to his site than we do! Which is great! Friends and neighbors will clearly take a recommendation from a friend more seriously than an ad from our agency. We all know that. We're glad to have friends in the community like Hank."

A couple gift-certificates to some of the stores in the mall, a polite request to check with their marketing people once in awhile... and it's win-win all over the place.

Jeez. What a spankin' load of garbage people dig themselves into when they focus on a "zero sum game." Great marketing is all about everybody coming out on top.

Super work, Hank. You fought clean, you fought proper. You're a real mensch. Chalk one up for the White Hats.

PS: If I'd been working for Greenberg's firm, I would have tried to make the point that your publication of the mall site was commercial use, despite the fact that you weren't directly profiting from sales and/or 3rd party advertising on the site itself. Why? Because you are (as I read in a couple of your documents), a web site designer by trade. Any posting of material that would influence people's decision to purchase your services could be considered a "sample" of your work and, as such, construed as advertising; therefore, commercial use. I would have argued that you used a large retailer like the mall to show off your expertise so that you could demonstrate to other potential clients how you would handle similar work. So you were, in fact, seeking to gain from the use of the plaintiff's copyrighted material. If you were a gardener or a manicurist who put up a hobby site... no such claim could be made. But as someone whose livelihood was made by performing similar work... it could look like you were advertising your services.

Now, that is, of course, in my honest opinion, crap. And false. And sneaky. None of which makes it inadmissible in court. In California, for example, any communication which can be said to in any way influence a consumer to make a purchasing decision is considered advertising, and, as such, is governed under the rules of advertising and commercial speech, not free speech in general. That's a much narrower set of rules. Nike's CEO, Michael Knight, for example, was sued in Caly for making some PR statements that amounted to what many people would call "spin." But they weren't entirely accurate under the rules of commercial speech, so somebody in California sued him for false advertising. It's a weird, weird world.

I ain't a lawyer, but if I had'a been, that's what I would'a tried. Anyway... congrats again. Reading your story made my day.

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