On my office wall is a cartoon showing a handbag-clutching middle-aged woman looking at headstones in the Men-Only Cemetery, with epitaphs such as “Don’t Worry, I’ve Done This a Million Times,” “Yes, I Know What I’m Doing,” and “What’s the Worst That Can Happen?” I thought of this cartoon when over coffee this morning I told my friend Chip that I planned to drive to Maine–during a Nor’easter blizzard forecast to drop at least a foot of snow over New England. He noted the smart thing was to delay my trip for a day and recommended I do the smart thing, but acknowledged that if he were going with me instead of heading in to work, his answer would be “let’s go now!”
We both recalled a decision on last summer’s bicycle trip. Our group planned to ride east to west up Glacier National Park’s Going to the Sun Road to Logan Pass, but the weather at our starting point included mid-40 temperatures, driving rain and sleet, and lightning. We weighed our choices over breakfast. Most of the group said “NFW am I riding in this.” Chip wanted to ride, and I really wanted to ride. It would have been a long, hard, wet, cold, and miserable climb–in other words, it would have been an adventure. My sensible friends convinced me not to go (no doubt rolling their eyes at my foolhardiness), and of course they were right, but part of me wishes still I’d made the climb.*
That’s the part of me that decided to set out for Maine at 4:3o this afternoon. No drama; I made it. It took 4+ hours instead of the usual 2.5 because safe highway speeds were at most 40-50 mph, and I drove many miles stuck behind a highway-spanning phalanx of snow plows traveling at 25 mph. I did manage to squeeze through a gap in one phalanxes’ formation and scoot ahead to the empty, snow-covered highway. My Maine driveway had not yet been plowed and I had to shovel a clearing to open the front door, but I made it. The only snafu was when to make room to plow the driveway I backed my truck onto the grass through a berm of plowed snow and got stuck. I’ll dig it out tomorrow morning.
*We climbed the west side of Going to the Sun Road to Logan Pass the following day. 40 degrees, but no rain, sleet, or lightning.
I am aware of my mortality and fragility every time I get on the bike. Road rash–a benign euphamism for what happens when skin meets pavement–and a cracked bone in my thumb are the worst of it for me. I have been lucky. Our recent bike trip was accident-free, with one near-miss in particular. We were approaching Burlington, VT on Route 7, a busy multi-lane state road, preparing to take a left turn and a quieter route. Six of us were on bikes, seeking a clearing in the traffic to move from the far right into the left-hand-turn lane. I was second from the front. I singled for the left turn, then looked back to see if I had room to move over. I saw behind me four bikers in the middle lane, moving further to the left, with traffic slowed to allow them to proceed. Perfect, I thought, and angled left. Just as I started to move Fred, in front of me, yelled “WATCH OUT!” I straightened the bike and looked to my left. There was a car, traveling perhaps at 20 mph, in the spot where I would have been had Fred not shouted the warning. Driving was a woman in her early 20s, her left hand on the wheel and right hand manipulating buttons on a cell phone, at which she stared intently. She had woven through the four bikers behind me and was oblivious to my presence a few feet from her passenger window–and nearly on her front bumper. I suggested a solo activity she might enjoy amid the chorus of yells and exclamations. She responded to the situation with a flip of her middle finger–I can’t recall whether it was the driving or cell phone hand–and drove on.
While crawling in bumper-to-bumper highway traffic last week I was thinking about the differences between those drivers who wait in line to merge and those who cut the line to merge at the last possible point. I try to avoid binary thinking but yield when it comes to highway-merging behavior: I fume about line-cutters 85% of the time. The other 15% of the time I cut the line. (What this says about my values I’ll leave aside for now.) Everyone who drives has an opinion on merge behavior, which is why The Urge to Merge in today’s paper will likely be the most-emailed article from the New York Times this week. Cynthia Gorney’s article, on what she calls “The Caldecott Tunnel Problem” (in pre-Ted Williams Tunnel Boston we’d have called it the Callahan/Sumner Tunnel problem), is quite funny and breaks (brakes?) the binary-thinking barrier, explaining why the most efficient merging pattern uses both “lineuppers” and “sidezoomers.”
I’m in Maine this week with the dogs, enjoying the solitude. I’ve been working most of the day. I needed a break so an hour ago I played fetch with the dogs–this time I threw and they retrieved–and went to the transfer station to get rid of the accumulated trash and recyclables. It’s a short drive and the snow that started earlier this afternoon made it especially picturesque. At the station I dumped the trash in the appropriate bins and chatted with Eric, the affable and quite competent transfer station agent. Eric, as he always does, had biscuits for the dogs and, as he always does, Eric handed them to me for feeding. Cleo and Chelsey don’t distinguish much between biscuits and fingers and in their eagerness they will take in everything attached to an item of food and sort it out later. As I was leaving Eric motioned for me to roll down my window. “Your sticker expires on the 31st. You’ll need a new one for next year.” “Thanks” I said. “Are the town offices open today?” He confirmed they were.
Driving there I noticed the lack of cars. I’d driven about 5 miles and seen no more than ten vehicles, including town trucks sanding the roads. I was savoring the lack of traffic, contrasting it with traffic at home, when I arrived at the town offices. I never mind going there. The ladies who work there–I’ve only seen women behind the counter–have always been helpful and efficient.
“What can I do for you?”
“I need a new Bulky Waste sticker.”
“Where do you live in town?” I gave her the local address. She entered something in a computer and looked at the screen for a while. Then she pulled a map out from under the counter, consulted it, and entered something else in the computer. Then she looked at me. “Who are you?”
“David Randall.” And as soon as she asked the question I knew I had a problem.
“That property is owned by a trust.”
I know that, of course, but I only think about it twice a year when I pay the real estate tax bill. I owned this property originally but four years ago we transferred it to a Qualified Personal Residence Trust–a QPRT. My wife, the estate planning lawyer, knows all about these legal techniques for reducing estate taxes. Owning this property in a QPRT is a good thing for our children when we get deposited in the bins of that great transfer station in the sky, but not a good thing for me today at town hall. Only the trustee has the legal authority to act as the owner, which means that she has to write a letter to town hall on behalf of the trust authorizing the town to issue a Lakes Region Bulky Waste Facility sticker to me so I can take out trash in 2008.
When I need to explain the difference between legal and beneficial ownership I’ll send students to this post. Beneficial ownership means the trash belongs to you; legal ownership means someone else controls what you can do with it.
I posted last week (iTunes iNtrouble?) about a report by Forrester Research that, according to The Register,Bloomberg, and others, disclosed a collapse in iTunes’ sales in 2006. The claims of trouble at iTunes “threw the cat among the pigeons,” as a boss used to say. Apple shares dropped almost 3% after Orlowski’s story, others claimed iTunes 2006 sales are “surging,” and the report’s author criticized the media for taking one sentence of the report out of context. Which figures are correct? It is hard to say since Apple does not report iTunes sales separately. Analysts look at other official Apple figures or figures from other sources to deduce iTunes sales trends and, not surprisingly, different sources yield different conclusions. For instance, the Forrester Research report is based on 2,700 debit and credit card transactions. Carl Bialik, The Wall Street Journal’s “Numbers Guy,” examined the different methods here. (Subscription required)
Commentary branched off from there. Andrew Orlowski’s December 12 article in The Register pointed to digital rights management as a cause of Apple’s declining sales, a theme reiterated by others: ” . . . the metrics are beginning to support the notion that DRM, at least in part, is actually driving people away from Apple’s music store.” (Joe Lewis, Webpronews.com) Orlowski spun another strand, predicting the advent of blanket licenses in which users subscribe to online sites for a small fee and obtain “the right to exchange music freely” and licensors (artists and labels) divvy up the pie in some equitable fashion.
Others attacked Orlowski’s article. In the “‘Collapsing iTunes Store’ Myth” RoughlyDrafted.com characterized Orlowski’s blanket-license model as a “socialist fantasy” mandating a “Soviet style choice:”
The point was not just to create a sensationalist article, but to use it as proof for later articles that followed a preset agenda: iTunes can’t succeed, because Orlowski has other ideas in mind about how to distribute the world’s music.
RoughlyDrafted.com links to a chart and analysis from Blackfriars Marketing of Apple sales supporting the Apple press-release claim that iTunes’ sales are, um, just peachy. Absent actual Apple iTunes sales figures this dispute is mostly noise, revealing more about the use of the Internet to flog a topic into tiny pieces than about iTunes’ sales or the future of digital music. Google, for example, produced over 10,000 hits for “apple ‘itunes sales’ ‘forrester research report.'” I don’t have a dog in this hunt. I’m neither confident of iTunes’ imminent downslide nor optimistic about its continued dominance over the music download market, merely curious about how the future unfolds and how we perceive it.
It reveals something else, too: the passionate, minute interest in the present and future of digital entertainment. It’s hard to imagine a report of, say, declining sales of Sony HDTVs provoking the same type of commentary.
The problem in teaching Internet law is choosing what to cover. There is no such thing as “Internet Law,” not in the sense of an integrated body of legal principles such as contract law, tort law, or constitutional law. “Internet Law” might better be described as “The Legal System’s Response to Problems Arising from Use of the Internet and Digital Technology for Commercial and Other Transactions.” That’s a title certain to scare away prospective students, and still probably incomplete.
When Internet Law, or Cyber Law, entered the legal consciousness about eight years ago textbook publishers rushed a number of Internet law texts to market. I looked at all of them, tried out a few, and now don’t use any. One problem they shared was the lack of clear vision as to what they should cover. They spent time on topics like non-disclosure agreements for employees of tech companies or forms of business organization for Internet start-ups. These are interesting topics in an employment law or entrepreneurship course, but pose no issues unique to the Internet. Teaching this course requires guidelines to determine what topics are in and what are out. Two Internet law professors might use different guidelines and disagree about whether to include a particular topic. For instance, I don’t discuss patent law in my Internet law course. Patent law raises vitally important issues these days, such as the patentability of methods of doing business and the Patent Office’s need to vet prior art thoroughly, but in my view these cutting-edge issues do not turn on unique Internet characteristics.
Fortunately the news abounds with issues of Internet law. These are some of the stories that came across my desktop yesterday:
Darren Waters, Warnings over ‘broken up” Internet, BBC News, Oct-11-06 (reporting on concerns that countries such as China will tailor Internet architecture to their specific needs, resulting in “island of connectivity that have no inter-connectivity between them”)
Jonathan Bick,E-Communications Policy: Getting It Right, E-Commerce Law & Strategy (Law.com), Oct-12-06 (recommendations about employer policies governing employee use of “Internet, computer, and electronic assets” that recognize the ubiquity inherent insecurity of current methods of electronic communication)
Jack M. Germain, The False Promise of Browser Security, E-Commerce Times, Oct-11-06 (“Vulnerabilities are so embedded in any browser that surfing the Web is no safer than driving a tank through a mine field while blindfolded.”)
Susanna Hamer, Google’s big bet, CNNMoney.com, Oct-12-06 (Advertisers will use databases of personally-identifable information, tracking cookies, geo-location software, and other devices to deliver personally-customized video ads to Internet users)
Like I said, the problem in teaching Internet law is choosing what to cover. There is too much.