Terrible Idea (.net)

At Concurring Opinions, Professor James Grimmelmann writes a post called “DRMbarassment for Us Law Professors?“  The title is derived from the specific technology about which he writes in the post, but I want to talk briefly about the larger points he brings up at the end of his post.  He writes:

We law professors who regularly opine on high technology are often dangerously blasé about the details of the technology we’re opining on. We get caught up in the minutiae of 1201(a)(1) versus 1201(a)(2) versus 1201(b), and we don’t pay anywhere near as much attention to the surrounding web of other kinds of IP, business arrangements, and especially technical specifications as we ought to. Consider these posts another plea for better interdisciplinarity. Our students are doing a better job of it than we are.

I think these problems are true on a broader scale.  Over at Simple Justice, in a post called “Hitting the Internet Wall,” Scott Greenfield touches on the same problem from a different side.  He writes:

[Cross-examining a witness with material from a website] made me competent to talk about [technology] back then. In retrospect, the idea of an old codger like me (meaning anyone over 30) talking about technology is laughable. Today, if you haven’t tried any of the tech ideas that appeared online in the past 30 minutes, you’re out of date. I am, regretfully, out of date.

The technical expertise required to understand what is going on with something even as simple as visiting searching for something on Google is substantial, and the details of what happens behind the scenes can be legally significant.  For those of us who have grown up with computers and the internet, certain things come naturally.  For the old codgers, new technology must be imperfectly analogized to old concepts.  Spyware as trespass to chattels comes immediately to mind.  And in the legal world, where precise definitions are needed, imperfect analogies can lead to mistakes.

These sorts of problems aren’t going to go away.  The nominal students know more than the teachers when it comes to many aspects of modern technology, and I don’t know of any easy way to fix the problem, other than waiting until the old guard retires and the youngsters move into the roles of power.  Of course, if the pace of innovation continues, we will be just as clueless as our former teachers.  At least we don’t live in boring times.

A week or so ago, Ron Coleman at Likelihood of Confusion (a law blog named after the legal test for determining trademark infringement) wrote a post called “The Long and Rocky Road.”  He writes about how much times have changed in the Intellectual Property world in the past forty years.  Baskin-Robbins couldn’t make a Beatles-themed ice cream without being sued all across the universe.  These days, everything is all about (as Mel Brooks would say) “Moichendizing! Moichendizing! Moichendizing!”

Ben & Jerry’s does tribute flavors nowadays, but they have to work closely with the subject of their tribute, and no doubt have to sign all sorts of contracts, all of which must be drafted by one side’s lawyers, reviewed by the other side’s lawyers, altered, returned to the other side, repeat ad nauseum.  For entertainment figures, it’s no longer good enough just to sell your particular brand of entertainment, you have to keep a tight grip on every part of your “brand.”

When did this happen?  My guess, based on no first hand experience, no in-depth research, and barely any cursory research, is that Star Wars was the turning point.  Rather than demand a bigger up-front payment, George Lucas slyly opted for a $175,000 fee, and 40% of the merchandising rights.  According to this site, the first five movies (at the time that article was written, which I can’t determine) had grossed $3.4 billion at the box office worldwide… and the merchandising had brought in over $9 billion.

By concentrating on the accessories — the cheap plastic figurines for which hordes of slavering nerds chomp at the bit to get in mint condition, as well as the extending light sabers, the board games, the trading cards, and hell, even coloring books — Lucas showed the world that the real money in entertainment comes from creating a brand, not just a single movie or trilogy.  The entertainment industry hasn’t been the same since.

I’m gearing up to post more regularly, since my post-exam cool-down period is over.  (I just had an image of laying in bed next to my Con Law exam, smoking a cigarette, asking “was good for you, too, baby?”  Hopefully I was… *ahem* big spoon.  I’ll find out in a few months.)

For right now, though, a bit of ill-informed wondering: “McCain Says He Would Put Conservatives on the Supreme Court.”  This headline has been showing up on my Google headlines, in various permutations, for most of today.

Why is this news?  Was there a chance that he wouldn’t appoint conservative judges?  Or is it just that the media feels they have to write something about McCain since Obama and Clinton have been so much in the spotlight with their continuing battle for their party’s nomination, and he happened to provide them with a good soundbite?

Exams are done.  For the next several days, I will be thoroughly engaged in a drunken stupor.  If and when I have occasion to rise from this abysmal state, I will, hopefully, write something.  I hope you look forward to it as much as I do.