IMHO Archives - Legal Bytes

01/19/201604/28/2022

The Paradox of Illumination

I first heard about the paradox of illumination from Lee Loevinger, an extraordinary gentleman I was privileged to know professionally. Lee was a multi-faceted, multi-talented, thought-provoking lawyer whose sage advice and stimulating ideas continue to resonate with those honored to have known him, and everyone else wise enough to read his work and the words he left behind.

In a nutshell, the paradox of illumination is extraordinarily complex, but simple to describe. Much like Albert Einstein who, when asked about his theory of relativity and the notion that time is not constant, described it in personal terms: if a man is at dinner for 10 minutes with a beautiful woman, it seems like a fleeting instant; but sit on a burning hot stove for 10 minutes and it seems like an eternity :).

The paradox of illumination can similarly be described on a personal level. Sit in completely dark room. Really. Completely dark. What can you see? Nothing. You know little about your surroundings and can only sense your own body – in fact, you don’t even know how far your surroundings extend beyond your immediate sensations.

Now light a match. The circle of illumination allows you to see a little of what is around you – but the perimeter and beyond are still dark. Now light a candle. The circle of what you can see illuminated by the light is larger than before, but the size of the perimeter beyond which you cannot see is also a lot larger than before. The larger the light, the larger the area of illumination, but larger by far is the perimeter beyond which we know nothing.

The more we can see and the more we know and understand about the world around us, the larger the amount becomes that we don’t know. In other words, as the circle of our knowledge grows, so does the amount of knowledge we cannot see and don’t know. The paradox of illumination is the paradox of knowledge. Perhaps that is why Michelangelo, when he was more than 87 years old, still said, “Ancora Imparo” (I am still learning).

12/30/201404/28/2022

Looking Forward to 2015

As we say goodbye to 2014 . . .

For those of you who are loyal readers and followers of Legal Bytes, you know this is the time of year when I break tradition and write a non-legal, personal and philosophical Legal Bytes post. If ancient Babylonians, who celebrated the New Year upon seeing the first new moon after the vernal equinox, could start a tradition that lasted for about 4,000 years – the least I can do is try to keep up. Although my tradition doesn’t date back nearly that far, this post will contain no links to distract you (until the very end when hopefully it won’t be a distraction). Nor will there be any citations to legal doctrine, references or background information. I won’t try to dazzle you with facts or intrigue you with today’s news. This is my opportunity to philosophize and dispense my thoughts and opinions – with absolutely no credentials, qualifications or expertise to do so.

There are two traditions I wish to continue, although I did not originate either one. First, let me take this the opportunity to wish each of you, your families, friends, loved ones and, yes, even an enemy or two, a beautiful and joyous holiday season and a healthy, happy new year, filled with wonder and magic, health and joy, challenge and opportunity, and prosperity and success. Second, as many of you know, for numerous years I have avoided sending out mass mailings of cards and gifts. Not only are they too lost in the seasonal flurry or delayed by the strain on delivery services, but the truth is that most of us don’t really need or want the trinkets that never express the real sense of appreciation or gratitude we might feel for friends and colleagues, families and loved ones, wherever they may be. We might deceive ourselves into believing it “personalizes” the warmth of the season, but after a few weeks they ultimately go into a drawer or the trash bin, or they are relegated to a closet filled with decades of Lucite, or sometimes they are re-gifted. In reality, there is nothing really personal about that process.

As many of you may already know, my second tradition is one I’ve borrowed from an old friend years ago, and which was originally intended to replace the mass cards, emails and impersonal trinkets with a more meaningful gift. Each year, I make a contribution to a charitable organization for all the family members, friends, loved ones, colleagues and acquaintances I want to honor, in memory of those I have lost this past year, and in recognition of those who have given me a reason to celebrate – in all, far too many to list and certainly all more deserving of something better than a card or bottle of wine. In that spirit, as I have done for a number of years, I have made a donation to the St. Jude Children’s Research Hospital – my way of trying to help some children in need who might benefit from the kindness of a stranger. Sometimes, random acts of generosity and kindness can bring surprising results – whether a smile, an unexpected warmth of spirit, or simply knowing it’s not all that difficult to do something to help make the world a better place – even just a little. Try it sometime.

Continue reading “Looking Forward to 2015”

06/30/201104/28/2022

Google and the FTC

An Open IMHO Letter to Google

Dear Google:

I’ve heard that the FTC has served you with a civil investigative demand in connection with your search-advertising business. They have raised the question as to whether your search engine technology pushes consumers to your other services in a manner that is unfair to your competition.

Now the FTC will try to determine if your market power is dominant because your practices are unfair and whether consumers are harmed, either directly or by not having competitive choices in the marketplace. Of course, the FTC has taken into account the complaints of your competitors. That is significant because I’ve heard a rumor that companies rarely try to incite trouble for their competitors at a regulatory agency.

So what happens next? Senior executives scramble. Lawyers do research and prepare briefs. Finance people set up cost centers and budgets. Evidence is gathered. Experts are retained. Distraction will be pervasive, invasive, consistent and persistent – until a settlement is reached. It won’t be pretty. It won’t be fun. It never is. But it’s here and at least the sword of Damocles is not hovering above. The issues will be confronted and the scope will be expanded – government always uses what it finds as a basis for going farther than originally planned (it’s great leverage). Then the serious business of trying to reach an accord will begin.

This isn’t about winning or losing. It’s about making a point. But it’s de facto, a recognition that you are thriving at what you do and have grown large and successful as a result. True, this action is probably not the recognition you prefer, but when the government wants everyone to believe you might be too big, too dominant, too much in control at the expense of competition and the detriment of consumers, the target is painted on you and it’s just a question of how much pain is inflicted before a settlement is reached.

Now I am not an economist or a market dominance expert, I’m a lawyer and blogger; but I thought I might help out by offering some observations you can bring to the attention of the FTC that might give the government (maybe others in the industry and even your competitors), pause to question whether their analysis, their efforts, their investigation, is correct or necessary. I’ve taken the liberty of including an attachment to this letter (see Attachment A) that provides some tips. Feel free to use them and tell your lawyers to back them up with lots of research and briefs – those are always impressive and useful.

Sincerely,

Joe Rosenbaum at Legal Bytes.

P.S. If your people end up spending hours, days and months with government regulators, working through lunches, late nights pouring over documents, huddled around conference tables, it may give you an opportunity to point the officials to their next target. You know who.

P.P.S. Feel free to use these and other quotes from the FTC if you like:

“And, as the information industry is still emerging, quite dynamic, and not yet well understood, plausible efficiency benefits should, perhaps, weigh heavily in the balance against asserted risks of decreased competition, especially when the technology is changing so fast that adverse effects on competition are likely to be transitory.”

“Antitrust and Technology: What’s On The Horizon?” Prepared Remarks of Federal Trade Commissioner Christine A. Varney, before the American Society of Association Executives, Legal Symposium, Washington, D.C., October 6, 1995

“A less confrontational approach suggests that because of the robust pace of innovation in high-tech industries, government should not intervene ‘unless certain that doing so will benefit consumers and the economy.’ (See, Priest, The Law and Economics of U.S. v. Microsoft, AEI Newsletter, August 1998).” Antitrust Analysis in High-Tech Industries: A 19th Century Discipline Addresses 21st Century Problems, Prepared Remarks of Robert Pitofsky, Chairman, Federal Trade Commission, to the American Bar Association Section of Antitrust Law’s Antitrust Issues in High-Tech Industries Workshop, February 25-26, 1999, Scottsdale, Arizona

You really need to see Attachment “A” so if it isn’t already displayed, point whichever browser you are using and click the “Continue Reading” text on the left below.

Continue reading “Google and the FTC”

04/05/201104/28/2022

Darwin Was Right. It’s All About Biology!

I have been stupid. It’s everywhere and I couldn’t see it. I’m looking at trying to invest my hard-earned dollars and wondering about the future of mobile and social media and technology. Hmmmm, maybe I should pour some money into that sector of the economy. But how to decide – price-to-earnings ratio, market multiple, return on equity, assets, sales? Then it dawned on me. Shhhh .. . I’ll let you in on a secret I discovered. It’s biology – natural selection, evolution, survival of the fittest – Charles Darwin was right.

Think about it. Sony says "It’s in our DNA." Twitter is for the birds. Social media is in your Face(book). Think it stops there? No way. Apple – the original sin. Gone viral – my anti-virus software has been in use for years. Make a firewall to stop it from spreading. Cookies? Baked to perfection! Who gives a Hoot(suite)? Oh and if you think the Droid or Android are not part of the mix, just watch Star Wars for those artificial parts, artificial intelligence and artificial sweeteners.

My blog has gone viral along with YouTube videos. Word of mouth marketing – even the blog conjures up images of Steve McQueen in a very old movie ("The Blob"– who remembers, raise your hands). Hear the buzz – not the sound of bees, but rather the web browsers. Firefox? How about the wireless photographic memory cards from Eye-fi? Did I mention cloud computing – is that cloud 9 or should I get off my cloud as the Rolling Stones asked me to do many years ago?

Not convinced yet? Just the other day researchers at IBM announced that they have developed a nanoparticle that has the ability to target and destroy bacteria that has otherwise proved to be resistant to antibiotics. Now I originally thought a nanoparticle was something harvested from Ork, the planet made famous by Robin Williams in the television series "Mork & Mindy." But apparently, nanoparticles are itsy bitsy particles, so small you could fit tens of thousands of them on the head of a pin.

So all you investment advisors, financial analysts, brokers and day traders, watch out. Pick the biologically named company of choice or, better yet, start a company, and watch it evolve, grow, mature and hopefully not crash before I sell. I personally am not surprised that Jim Beam has been around since 1795!

01/06/201104/28/2022

Net Neutrality? Much Ado or Nothing To Do?

Here is how Wikipedia (as of January 4, 2011) defines "Network neutrality":

"Network neutrality (also net neutrality, Internet neutrality) is a buzzword used to describe a principle proposed for users’ access to networks participating in the Internet. The principle advocates no restrictions by Internet service providers and governments on content, sites, platforms, the kinds of equipment that may be attached, and the modes of communication." The Wikipedia article, which goes on for pages, and with more than 100 footnotes and citations, then says, "The principle states that if a given user pays for a certain level of Internet access, and another user pays for the same level of access, then the two users should be able to connect to each other at the subscribed level of access."

Now I confess. Lawyers are often accused of writing 1000 word manifestos and calling them "briefs," but I have read and re-read the definition and the ensuing pages of "clarification." I’ve paid attention in the media and to learned articles. I have no clue what "net neutrality" means. I do, however, take comfort in the fact that if you read the Wikipedia article, and dozens, if not hundreds of other articles, you will see that nobody really has a well-defined meaning of what "net neutrality" is.

But good news. I think I know why all of this confusion exists. It’s actually pretty simple. Take the words apart. When you think of the Internet and World Wide Web – references now include wireless and mobile as part of this amorphous, nebulous cloud (oops, another buzzword) – it’s simply hard to define. It is dynamically evolving. It has features, functions and uses that morph almost daily. The devices change. The transmissions change. "Internet" has different meanings for different people, from different perspectives, at different points in time, and even the names and categories of parties injecting themselves into the debate are changing.

Then there’s "neutrality." What does that mean? Switzerland is neutral. Is it? Everybody on board? Any questions? Good. We all know what that means – especially when referring to the Internet. Right? Technology? Economics? Pricing? Access? Shall we go on? I think not. Perhaps government regulators use the term "neutrality" because it is a term often applied to conflict – wars. Perhaps there is a war going on. A turf war over which government agency gets to control what and who and where and when – not to mention who wants to tax it. Darn, I promised not to mention taxes.

In recent years, the FCC has sought to take the lead in being an advocate for "net neutrality," despite having its share of difficulties with the courts. Undeterred, in December, the FCC released a new report proposing "net neutrality" – a proposal to regulate the Internet. [See, e.g., cnet news article FCC makes Net neutrality rules official.] Remember how easy it is to define the Internet? The vote was hardly unanimous: 3–2. Have you read the FCC document? Almost 200 pages. The legal standard for regulation: "reasonableness."

Now I confess I did start to salivate reading the report. Think about it. We are lawyers. Who wants certainty? Think of all the litigation and dispute, the angst, the risk memoranda, and the frantic consultations that might be avoided if there was certainty. No, no, who am I to call for clarity.

The discussion reminds me of a wryly humorous tale of an architect, engineer and lawyer, all debating what profession the Lord would have chosen. The architect extols the talent necessary to envision and lay out detailed plans for the creation of heavens and earth and everything within – surely a task for an architectural genius. "Nay," cries the engineer. The greatest master builder that ever was and ever will be. "Who else could possibly build such glorious work? Who else could bring such magnificent order out of such utter and sheer chaos?" exclaims the engineer. Quietly the lawyer looks up and whispers, "First and foremost, the Lord would have been a lawyer." Quizzically, the two peer over at the attorney for an explanation. The lawyer lowers the reading glasses and whispers, "Who else could have created such utter and sheer chaos?"

So I’m risking my own self-interest to say, please, FCC Chairman Genachowski and all the others at the FTC, the Department of Commerce – I’m not even going to go overseas for this one. Please end the meaningless war over what, who, why, how, where and when the Internet needs to be controlled in order for it be "neutral." Stop! Nobody knows what you mean or what it means. Change words. Change focus.

How about "net vitality"? Worry about innovation. Encourage competition. Stimulate commercial robustness. Protect the helpless, the vulnerable – intervene where you must, no argument. But IMHO, in this case, less is more. Bayless Manning, former Dean of Stanford Law School and past president of the Council of Foreign Relations (although in a different context), summed up the problem best when he noted, "As batting averages are to baseball players, stars to restaurants, ribbons to generals and stock price to corporate executives, so new statutes are at the heart of the scorekeeping system by which legislators are measured and measure themselves. No legislator ever gained renown as a great non-law giver." Perhaps this too can change.

01/06/201104/28/2022

In My Humble Opinion – IMHO or I.M.H.O. or even IMO

Happy New Year! We are inaugurating a new feature of Legal Bytes—a category of blog postings entitled “In My Humble Opinion,” or IMHO for short. The first such posting will be up momentarily, but here’s what to expect.

Every once in a while a legal issue or something trending in the legal world catches our fancy. Perhaps it’s not an event or a decision or an article, but just a growing sense something is happening.

In our endeavor to not just report on news or noteworthy occurrences, and in our attempt to enlighten as well as inform—these pieces are intended to stimulate your thinking and share some of mine. I might produce two in a week or none for a month—I don’t know. It’s part of my own evolution as editor, publisher and chief bottle washer for Legal Bytes—but it’s worth a try.

As always, even though we don’t provide for interactive dialog or chat on this blog, I do read every piece of email (can you actually have a piece of email, or do I digest every electron?), and I do value your comments and feedback.

Buckle up folks. Another ride is coming your way. Let me know what you think of IMHO as it unfolds. Thanks for reading.