One year ago, the Wall Street Journal and other business publications reported that the Federal Trade Commission (FTC) had launched an investigation into “Twitter and the way it deals with the companies building applications and services for its platform.” The gist of the apparent competitive concern was that Twitter — which has grown from nothing to a significant new medium of social communications in just five years — had decided to limit access to its application programming interfaces (APIs) for third-parties, such as HootSuite, Echofon and the like, selling Twitter “client” software.

There’s no doubt Twitter is a disruptive technology. Of course, in 2000 the FTC was so convinced that an AOL-Time Warner combination would monopolize Internet content that it saddled the then-biggest merger with an onerous consent decree that evaporated, as did AOL itself, in the relative blink of an eye. Now it appears the agency is making the same mistake again. Assuming that a new and evolving technology represents a stand-alone market for antitrust purpose is dangerous where disruptive entrants are concerned, because as AOL illustrates, despite a first-mover advantage, even in network effects markets that may “tip” to a single firm competitive reality changes more quickly and in ways even the brightest pundits and government policy makers could never predict.

Given that Twitter is in competition with Facebook, LinkedIn, Tumblr, Pinterest, Instgram and many other social networking and messaging services, including the near-moribund Google+, you’ve got to wonder why the FTC could even plausibly hypothesize that Twitter has anything approaching monopoly power. One can perhaps understand policy neophytes like Mike Arrington naively saying that Twitter has a “microblogging monopoly,” but not seasoned antitrusters.

Twitter management explained at the time that “Twitter is a network, and its network effects are driven by users seeing and contributing to the network’s conversations. We need to ensure users can interact with Twitter the same way everywhere.” That’s a quintessential business judgment by corporate managers who presumably know their users (tweeters) and customers (advertisers) best. The company’s motivation is also clear and perfectly valid: it doesn’t want third parties making money — namely, coming into direct rivalry by selling ads — off its service, and thus depriving Twitter of potential revenue. It is incontestable that Twitter could vertically integrate into the client software business itself (a first step in which it did by acquiring TweetDeck), without any possible antitrust constraints. In this light, what could conceivably be wrong with Twitter setting ground rules that require third-party providers to utilize a common user interface (UI) scheme?

As Adam Thierer of the Technology Liberation front observed in 2011:

This episode again reflects the short-term, static snapshot thinking we all too often see at work in debates over media and technology policy. That is, many cyber-worrywarts are prone to taking snapshots of market activity and suggesting that temporary patterns are permanent disasters requiring immediate correction. Of course, a more dynamic view of progress and competition holds that “market failures” and “code failures” are ultimately better addressed by voluntary, spontaneous, bottom-up responses than by coercive, top-down approaches

Ironically, the Twitter decision to control API usage and effectively boot off some third-party software had only one economic effect. It cannibalized Twitter’s own developer and partner ecosystem, on which the company had relied heavily through its first years of extraordinarily rapid growth, in favor of an internal solution. That decision alienated some Twitter users and almost certainly reduced the absolute number of tweets sent and received — and thus the page views on which Twitter’s advertising rates are necessarily based. It also risked alienating the venture capitalists who have invested an estimated $475  million over just one-half of a year in companies working to develop Twitter-compatible apps and utilities. So the only firm Twitter is really hurting by this practice is Twitter itself. Eating your own ecosystem is hardly the stuff of monopolization.

Sacrificing independent distribution in favor of vertical integration is also a business model companies adopt and reject like roller coasters. In the oil industry, for instance, the most famous government antitrust case of them all is 1911’s Standard Oil, which broke up the vertically integrated petroleum monopoly assembled by John D. Rockefeller. Today, Standard’s offspring are rapidly disintegrating, divesting both wholesale distribution of refined oil products and retail gasoline dealerships. Sometimes conventional business wisdom extols vertical integration, other times it emphasizes an Adam Smith-type comparative advantage. But isn’t that the essence of marketplace competition? And in turn isn’t that something our nation’s competition policy should leave in the hands of market participants rather than government agencies?

The answer from Forbes is a simple yes:

If the FTC is indeed investigating Twitter, they are likely to find this case pretty boring. In acquiring the third party apps widely adopted by its users, Twitter is simply making a gradual, not to mention inevitable, move closer to its customer base. The startup is often slammed for its struggle to adopt a serious business model. Now that Twitter has finally figured out it is awfully difficult to build a business as a plumbing conduit, suddenly it’s lambasted as the next Microsoft.

In fact, the issue here is far more significant for technologies down the road that no one has as yet even conceived. Twitter seems sufficiently well-established that it will likely survive an FTC investigation, at least in the short run, and however misguided the government’s underlying assumptions may be. But start-ups which have not yet escaped from private betas and coders’ college dorm rooms will give pause, as they grow, before deciding to sever relations with partners that helped them “get big fast.” The fear is that cutting off downstream firms, even if taken for objectively valid business reasons, will catalyze an FTC or European Union antitrust investigation of whether the firm has “abused” its “market dominance.”

A threat of government action can be just as debilitating to innovation as premature enforcement intervention into the marketplace. Let’s hope the FTC’s 2011 Twitter investigation is mothballed in 2012, and that in the future investigations of segment-leaders in nascent technology spaces are opened only where — unlike the case of Twitter — there’s clearly an economically valid market and practices involved which are unambiguously anticompetitive. The FTC has said nothing about the Twitter issue for a year, while the San Francisco Examiner revealingly comments that “[i]n the space of [that] year, the FTC has racked up more legal action involving the high tech world than the FCC and both houses of Congress combined.” Note to Chairman Leibowitz: it’s time to let this one go, now. If your agency wants to do that quietly in order to save face, no one in Silicon Valley will mind at all. We won’t tell.

Note:  Originally prepared for and reposted with permission of the Disruptive Competition Project.

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At the DisCo Project, we naturally focus on the current, dynamic technology marketplace and the disruption it is continuing to cause to brick-and-mortar and other “legacy” industries. But disruptive innovation is not new and not unique to high-tech. It’s been around for hundreds of years and serves as a key driver of both economic growth and social evolution.

Let’s start with the poster child of disruption, buggy whip manufacturers. In the late 19^th century there were some 13,000 companies involved in the horse-drawn carriage (buggy) industry. Most failed to recognize that the era of raw horsepower was giving way to that of internal combustion engines and the automobile. Buggy whips, once a proud, artisan craft, essentially became relegated to S&M purveyors. Read Theodore Levitt’s influential 1960 book Marketing Myopia for a more detailed look.

Not everyone was obsoleted by Henry Ford. Timken & Co., which had developed roller bearings for buggies to smooth the ride of wooden wheels, prospered into the industrial age by making the transition to a market characterized as “personal transportation” rather than buggies. Likewise carriage interior manufacturers, who successfully supplied customized leather-clad seats and accessories to Detroit.

One might suspect this industrial myopia has been confined to small markets with few dominant players. But not hardly. One of the more famous series of patent cases in history were the battles between Western Union and Alexander Graham Bell in the 1870s, where the telegraph giant (along with scores of others) vainly tried to contest Bell’s U.S. patents on the telephone. Ironically, the telephone was initially rejected by Western Union, the leading telecommunications company of the 1800s, because it could carry a signal only three miles. The Bell telephone therefore took root as a local communications service simple enough to be used by everyday people. Little by little, the telephone’s range improved until it supplanted Western Union and its telegraph operators altogether.

Apart from scurrilous character assassination suggesting Bell had bribed U.S. Patent and Trademark Office clerks to stamp his patent appli­cation first, the patent cases are best remembered for their eventual 1879 settlement. Western Union assigned all telephone rights to the nascent Bell System with the caveat that Bell would not compete in the lucrative telegraphy market. After all, Western Union surmised, no one wanted to have their peaceful homes invaded by ringing monsters from the stressful outside world. Check out this verbatim 1876 internal memo from Western Union:

Messrs. Hubbard and Bell want to install one of their “telephone devices” in every city. The idea is idiotic on the face of it. Furthermore, why would any person want to use this ungainly and impractical device when he can send a messenger to the telegraph office and have a clear written message sent to any large city in the United States?

Epically wrong! But that, of course, is the challenge of disruptive innovation. It forces market participants to rethink their premises and reimagine the business they are in. Those who get it wrong will be lost in the dustbin (or buggy whip rack) of history. Those who get it right typically enjoy a window of success until the next inflection point arrives. Were barbers out of business when, some 200 years ago, doctors began to curtail the practice of bleeding patients, eventually usurping barbers as providers of health care? No, because barbershops moved from medicine to personal grooming.

Disruptive technologies create major new growth in the industries they penetrate — even when they cause traditionally entrenched firms to fail — by allowing less-skilled and less-affluent people to do things previously done only by expensive specialists in centralized, inconvenient locations. In effect, they offer consumers products and services that are cheaper, better, and more convenient than ever before. Disruption, a core microeconomic driver of macroeconomic growth, has played a fundamental role as the American economy has become more efficient and productive.

Clayton Christensen, Thomas Craig and Stuart Hart, The Great Disruption

There are hundreds or thousands more examples we can discuss. Polaroid and Kodak, both innovators in their own right, have faced bankruptcy and virtual irrelevance over the past few years because they could not cope with rapid disintermediation of their photography businesses by digital technologies. Walgreens, CVS and camera shops, meanwhile, have retained a solid photography revenue stream by supporting photo printing from SD cards and even Facebook photo collections.

Some businesses get it and some do not. Disruptive competition drives out those whose world view tries quixotically to preserve the past or to protect economic and social customs from technology-driven change. Disruption is of course not a panacea for all social ills; New Yorkers, for instance, complained as much about the filth and stench of cobblestoned city streets filled with horse droppings in the 19^th century as they did about the filth and stench of paved streets filled with cars and CO2 fumes in the 20^th century. As an economic and competitive matter, however, disruption is a process of continually “out with the old and in with the new.” And it’s been that way for as long as anyone can remember.

Courtesy of Disco Project | Of Buggy Whips, Telephones and Disruption.

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With reality television all the rage, viewers may wonder why there’s been no reality series about the inbred high-tech ecosystem of Silicon Valley. There should be, because the reality of how our technology bastion really competes today — namely by patent litigation and acquisitions — is astonishing.

Last year Google, Apple, Intel and other leading Silicon Valley companies were targeted by federal antitrust enforcers for tacitly agreeing not to hire each other’s key employees. Such a conspiracy could have landed top executives in jail. This year Apple, Samsung, Google, Nokia and others have all been battling over back-and-forth claims that smartphones and wireless tablets infringe each others’ U.S. patents. Now, just weeks after Google’s general counsel objected that patents are gumming up innovation, the search behemoth has announced its own $12.6 billion acquisition of Motorola Mobility, and with it their own portfolio of wireless patents, just a fortnight after purchasing a relatively few (“only” 1,000 or so ) wireless patents from IBM.

While the executives at Google have nothing to fear personally from these patent wars, others seem to have a lot at risk. That is because, according to the Wall Street Journal, the U.S. Justice Department’s Antitrust Division is investigating another possible conspiracy among Silicon Valley companies. This one arises out of the collective bid in the late spring of nearly every wireless phone operating system manufacturer, except Google, for a portfolio of 6,000 cell phone patents formerly held by bankrupt Canadian company Nortel. Simply put, Google started the bidding at about $1 billion, but the others joined forces to lift the price to an astounding $4.5 billion and win the prize.

That’s the legal background to Google’s just-announced Motorola Mobility acquisition, and it’s one that could have serious anticompetitive consequences. If the curiously named “Rockstar Bidco” consortium — which includes Microsoft, Apple, RIM, EMC, Ericsson and Sony — refuses to license the erstwhile Nortel patents to Google for its Android wireless operating system, they will be agreeing as “horizontal” competitors not to deal with a rival. Classically such group boycotts are treated as a serious antitrust no-no, and a criminal offense. If the group licenses the patents, on the other hand, they could be guilty of price fixing (also a possible criminal offense), since a common royalty price was not essential to the joint bid and would eliminate competition among the members for licensing fees.

If the Rockstar Bidco companies decide to enforce the patents by bringing infringement litigation against Google, things could be even worse. Patent suits themselves, unless totally bogus, are usually protected from antitrust liability so as not to deter legitimate protection of intellectual property assets. (That does not mean they’re competitively good, since patent suits are often just a means of keeping rivals out of the marketplace.) Nonetheless, a multi-plaintiff lawsuit by common owners of patents would have those same horizontal competitors agreeing on lots of joint conduct, well beyond mere license rates. For starters, is the objective of such an initiative to kill Android by impeding its market share expansion? That’s a valid competitive strategy, standing alone, for any one company; it takes on a totally different dimension when firms collectively controlling a dominant share of the market gang up on one specific rival.

Google’s broader complaint that patent litigation in the United States is too expensive, too uncertain and too long may well be right. This bigger issue is being debated in Washington, DC as part of what insiders call “patent reform.” The high-stakes competitive battles being waged today in the wireless space under the guise of esoteric patent law issues like “anticipation” by “prior art” suggest a thoroughly Machiavellian approach to the legal process, just as war is merely diplomacy by other means. They inevitably color the perspective of policy makers, who watch with regret as a system designed to foster innovation gets progressively buried with expensive suits, devious procedural maneuvering and legalized judicial blackmail.

Even the biggest companies, though, would find it hard to compete if their largest rivals were allowed to form a members-only club around essential technologies to which only they had access. Microsoft’s own general counsel countered two weeks ago that Google was invited to join an earlier consortium bid but declined before the Nortel auction. Embarrassing, yes; dispositive, no. If the offer were still open, now that it is clear Google’s principal wireless rivals are all members, things would be different. Indeed, there’s even an opposite problem of antitrust over-inclusiveness where patents and patent pools are concerned. If everyone in an industry shares joint ownership of the same basic inventions, where’s the innovation competition? Google’s defensive purchase of Motorola is a desperate, catch-up move that does not really change this “everyone-but-Android” reality.

Silicon Valley’s patent wars are for good reason not nearly as popular as Bridezillas or So You Think You Can Dance. Yet they are far more important, economically, to Americans addicted today to their smartphones and spending hundreds of dollars monthly on wireless apps and services. Whether the Justice Department will challenge the Rockstar Bidco consortium or give it a free pass remains to be seen. From a legal perspective, it is just a shame the subject is too arcane, and certainly way too dull, to make a reality TV series.

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The news today is all about Tuesday’s “open meeting” at the FCC, where at long last a proposed regime for network neutrality will formally be considered. ”There are of course a lot of moving pieces surrounding this debate, and however the chips fall, it’s going to have a long-term affect over how the Internet operates over the next several years.” The FCC Votes on Net Neutrality Tomorrow; The Internet Waits | AllThingsD.

Actually, the modest few rules FCC Chairman Genachowski has proposed are so trivial that, like all good policy, compromises or settlements, they have angered both the left and the right. The former deplores the scheme as worse than nothing, while the latter says it is a slippery slope to full regulation of the Internet.

The far more important issue tomorrow is the legal framework under which the FCC will propose net neutrality rules. After the Comcast decision in April of this year — in which a federal court of appeals threw out the Commission’s decision to sanction undisclosed throttling of P2P traffic by ISPs — net neutrality has been in a state of extreme jurisdictional chaos. For an overview, read the Fall 2010 edition of the ABA’s Icarus magazine, a symposium issue on so-called “Title II reclassification” featuring, among others, this author.

About a month ago, Genachowski also announced has was abandoning his Third Way reclassification approach. That’s a brilliant decision, as reclassification was doomed to judicial reversal and, almost certainly, an injunction or stay against implementation. The alternative is for the FCC to articulate the ancillary jurisdiction linkage or nexus between the agency’s specific areas of delegated responsibility — telephony (Title II) and broadcasting (Title III) — and its general authority over “communications by wire or radio.” Yet to do that the agency needs to distance itself from the protectionist roots and core of the ancillary jurisdiction doctrine, which for 40+ years has been used principally to squelch or constrain new technologies in order to prevent market competition with older, established industries (constituencies).

Here’s what I wrote earlier:

Ancillary jurisdiction under Southwestern Cable represents the low-water mark of communications jurisprudence. It was fashioned as a legal matter to permit FCC control of CATV, the infant predecessor to today’s robust cable programming industry, as a means of protecting the Commission’s power to regulate broadcast television. . . . It was protectionism to the core [and] epitomizes the conservative critique of administrative agencies as regulatory capture.

There is no longer an appetite in Congress to utilize governmental regulation to protect incumbents and vested commercial interests against competition and new entry. Hence, because it lacked and still lacks the political will to justify net neutrality on the ground of protecting its Title II and III jurisdiction over telephony and broadcasting — by sheltering the legacy providers of those services against disintermediation — the agency can never provide the requisite “nexus” demanded by the Comcast opinion.

Since no current policy or political figure today can admit to using regulation to handicap new entrants and favor established business interests, ancillary jurisdiction will remain the dark, dirty secret of administrative law until it is moved to a new footing. Imagine if the FCC reasoned that with IP convergence, services that formerly were within its Communications Act authority, like telephony and television, are increasingly moving to an Internet-based delivery system that, if it continues, will eventually leave all of communications beyond the FCC’s jurisdiction. Under this approach, the Commission could demonstrate a clear nexus between its statutorily delegated responsibilities and the ancillary role it proposes for net neutrality, without reverting to the sullied, protectionist past of ancillary jurisdiction.

Some observers may argue that such a “Title I” approach to net neutrality does not in principle prevent the FCC from exercising unlimited power over Internet communications. That’s overstated in my view. First, the Supreme Court’s 1970s decisions on ancillary jurisdiction (Midwest Video) hold that ancillary jurisdiction us not “unbounded.” Second, from a legislative perspective it is obvious that an administrative agency acting on the basis essentially of implied power cannot do anything broader under a general “public interest” standard than it could if acting under the express jurisdiction delegated by Congress. Specifically, while Title II authorizes full, rate-of-return common carrier regulation, the FCC would overstep its bounds imposing parallel rules under Title I ancillary jurisdiction. Third, the extreme critique from conservatives that agencies cannot be permitted to do anything without express congressional authorization really doesn’t apply; Congress has granted Title I authority over all interstate communications, it just has not fleshed that out with detailed standards.

More problematic are current reports that the FCC is considering relying on Section 706 of the Act, which urges the agency to promote “advanced telecommunications” services, as its ancillary jurisdiction hook for net neutrality. That’s inane, because the Commission in the 1990s ruled over and over again that 706 was not a basis for regulatory power. This means that using 706 as the nexus for ancillary jurisdiction will necessarily stoke a hotter fight over the FCC’s reversal of its statutory interpretation, a double whammy.

The better linkage is to the basic legislative commands (e.g., Section 201) that direct the FCC to ensure just and reasonable communications and broadcasting services for users. It cannot be disputed that if current trends continue, VoIP and Internet video could and well may eventually displace POTS and cable/broadcasting, in which case there would be nothing left with which the FCC could fulfill these elementary responsibilities if such IP-based services, which do not represent “telecommunications,” “cablecasting” or “broadcasting” in traditional statutory terms, must remain forever and completely unregulated.

A broader and more cogent question is, if the FCC takes this approach, would that not create a system in which an agency decides for itself how far to go when Congress fails to update its underlying statutory power to reflect technological change? Yes, it would. But it would not be Genachowski or the FCC creating this paradigm, it was the Supreme Court. A better legal system would have an administrative agency go back to Congress and ask for new powers if its old ones are being end-run by technology. As a practical matter, that could lead to gridlock, however, as in the communications arena general revisions of the Communications Act of 1934 happen very rarely — once in 65 years, far less than every generation.

So if politics is the art of the possible, it is possible for the FCC this Tuesday to make history, survive a judicial challenge and move archaic regulatory jurisprudence forward into a new era, stripped of its protectionist past. It’s also possible the Commission will be split politically, that left-wing proponents can convince some members that a principled loss is better than a compromise win, see Net Neutrality Supporters Question FCC’s Genachowski Plan | Techworld.com, or that as it has so many times in the past, the agency will fail to explain itself in simple terms the courts demand and can understand.

The Third Way of Title II reclassification was too cute for its own good. The Commission has a chance to correct that overreaching, but its internal bureaucratic tendencies to ambiguity and a “Chinese menu” theme for jurisdiction threaten to blow up net neutrality again. GOP Opposition to FCC Net Neutrality Plan Mounts | enterprisenetworkingplanet.com. Far more principled, regardless of one’s position on the substantive merits and policy need for network neutrality, would be for the FCC to pick a single, simple nexus. It’s not cute, it’s not expansive, but it would work. The question is whether in this highly polarized legal and political environment, the players really want anything to work at all.

Politics is always, in part, theater and sausage-making. That the law and public policy are the byproducts of such superficial pursuits remains a frustration, but in the United States it’s one we all have to live with, and one some pundits are convinced preserves the republican tradition of limited government. I for one hope the FCC keeps a more modest agenda tomorrow and moves the net neutrality debate closer to a conclusion, instead of adding fuel to the legal and policy fires that have raged on this issue for years.

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60 years ago, when Harry Truman beat Tom Dewey for the presidency, it was widely predicted by pollsters that Truman would lose. This led to the famous “Dewey Beats Truman” headline in the newspaper proudy flashed by the winning candidate.

The problem, it was later revealed, was that the Gallup organization based its poll results on responses to telephone inquiries. But in the late 1940s, that selection inevitably favored wealthier Republicans, leading to skewed poll results.

Gallup is best known for that one half-century-old blunder. There’s a terrible irony in that. The studious George Gallup did more than anyone to put opinion polling on solid ground.

We have a similar problem today, it appears to me. While telephone subscribership has now become ubiquitous, increasingly many citizens — especially twenty-somethings — no longer use landline telephones, instead going completely wireless. The proportion was 1 in 6 three years ago and continues to increase steadily. Pollsters, however, still base their surveys on landline phone subscribers. In fact, under FCC regulations it is unlawful to telephone a wireless subscriber for a “solicitation” or using an autodialer (a technical prerequisite to modern polling) without either their consent or a prior business relationship. Therefore, despite a non-profit exemption in the FCC’s rules (which, unlike the Federal Trade Commission’s “telemarketing sales rule,” do not expressly exempt political polling), the law is standing in the way of accurate political predictions.

How this will play out in next Tuesday’s elections is unclear to me, as I claim no special expertise in political punditry. But it is revealing that the problems experienced in 1948 are recurring today in a different form due to technological change and the accelerating proliferation of wireless communications devices.

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I’m not sure I agree entirely with the political motivations, but the legal analysis here seems right.

If Chairman Genachowski announces, as expected, his intention to reclassify the Internet as a telephone system, he will be reversing 30 years of precedent starting with the Carter administration FCC’s “Computer II” decision and definitively settled with respect to broadband Internet access by the Clinton FCC in 1998. Turning sharply left from Carter and Clinton indicates a pretty extreme shift beyond the mainstream of American politics.

Such a shift is unjustified, because free-market Internet policy has been a tremendous success. The Internet — in the absence of regulation — has flourished into a remarkable engine of economic growth, innovation, competition, and free expression. Such triumph argues in favor of continuing existing successful policies, but with today’s announcement the FCC shows it is more interested in satisfying a left-wing political constituency than continuing sound policy.

Posted via web from glenn’s posterous

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I was honored this week to become the 50th lawyer interviewed via Twitter by Lance Godard of 22 Tweets. Here’s the transcript…

Today we’re tweeting with @glennm, biglaw antitrust / telecom / technology litigator turned Web 2.0 legal guru.

1. @glennm thank you for joining us today on Twitter. Tell us: who is @glennm?
   Good morning. Thanks for inviting me.
   A tech atty. focused on comp. policy, IP & complex litigation. I help to shape the rules for new technologies, like social media.
   -
2. Tell us about your law practice.
   My practice has broadened over the years as technology developed, from telecom to software and Internet to mobility and content….
   It all started at DOJ during the US v. AT&T divestiture case, where I 1st combined antitrust with telecom regulation.
   -
3. That’s quite a resume! What type of clients do you represent?
   Clients who can pay their bills. ;-) Seriously, my clients range from start-ups to Fortune 100 companies. Hard 2 generalize.
   -
4. I can imagine…. What would you say is the single most important legal issue affecting your clients?
   “What am I?” Meaning, how will legislators, courts and regulators classify and treat our products and services. That affects…
   …business Qs like CRM, IP protection/licensing and relations with both partners and competitors.
   -
5. Sounds like fascinating work. What do you tell every new client before you start working for them?
   “It’s better 2 be the windshield than the bug.” Be proactive in managing the development of law & policy affecting ur space.
   -
6. Am sure you’ve got some great success stories: tell us about one of the more significant client representations you’ve had.
   My fave is representing Netscape in 1995-96, when the FCC faced the Q of what was this new animal of the Net…
   …Netscape WAS the Internet and we inaugurated a federal policy of minimal regulation that survives (in large part) today.
   -
7. Wow. And we all thank you for that…. Why do your clients hire you?
   I’m smart, fast and strategic. I would rather solve a problem with a conf. call than write a research memo. And I try to craft…
   …legal strategies for clients that further their long-term bus. plan rather than just dispose of “one off” disputes.
   -
8. What’s the most active area of your practice at the current time? Is that typical?
   Over the past 2-3 years it’s been litigation. But the law moves in cycles, sometimes regulatory agencies r where the action is….
   …and at other times firms must act to resolve issues by taking them to the courts. We’re in the latter phase in tech now.
   -
9. What have been the biggest changes in your practice over the past few years? Clients? Technology? The Law?
   A move away from private antitrust litigation to intellectual property, as competition issues have become dominated by disputes…
   …over ownership of the underlying tech methods and assets. Take VoIP (voice over Internet protocol) for one example.
   -
10. What will be the next great legal battle of Web 2.0? Why should we pay attention to it?
    Who owns user-generated content is the big unsettled Q. It will impact users, social network providers and content creators…
    …If most or all digital content can b “shared,” how do older rules re proprietary rights apply in the new environment.
    -
11. You’re at an AmLaw 100 firm. How does your firm’s leadership view your active Web 2.0 presence?
    Mgmt. is supportive & has tasked me several times w/teaching our lawyers how to utilize and interact w/social media.
    -
12. That’s great. What do you say to lawyers who thumb their noses at social media and social networking?
    Hope they don’t thumb noses. But lawyers are conservative creatures and thus tend not to embrace change quickly…
    …I’d say that if attys. do not “get it,” they probably won’t get as many clients and work as new modes of communication develop.
    -
13. Your Web 2.0 presence is a mash-up of personal & professional. What are your SocMed objectives? Are you achieving them?
    I’m more concerned with satisfying a passion for early adoption than forming concrete objectives from social media. My philosophy…
    …has always been to find industries, partners and clients that excite me, so work is satisfying instead of a burden. The rest..
    …typically follows, namely success, profit and (we hope) happiness.
    -
14. Nice. What specific impact on referrals and/or client engagements have you realized from Web 2.0 activities?
    I’ve been approached and retained by about 1/2 dozen clients in the past 12-18 months from social media contacts. The familiarity…
    …created by a user’s “social stream” tends 2 build closer relationships from the start than cold calls either way.
    -
15. Indeed. Can be a significant competitive advantage. How much time do you spend each day developing / enhancing your brand?
    Discipline is key, else social media addiction can consume one’s life. I dedicate 30 mins, in the morning and then periodically…
    …review/post stories re current events (emphasizing law/policy, of course) of interest. Content is the best promotion.
    -
16. Seems to be working well…. Let’s switch gears. What is the most significant issue currently facing the legal profession?
    It’s clear that Big Law is facing its most challenging bus. environment in decades. Pressures to reduce and make fees predictable…
    …r sending shock waves of RIFs throughout the field. What will the bus. model be 4 legal servs. in the 21st century?
    -
17. What will the legal landscape look like in 10 years?
    Ah, if I could predict that, I’d be able to retire now. ;-) 20 yrs. ago I never imagined 3000+ lawyer firms, so I don’t…
    ..pretend to have a crystal ball on the legal landscape. Change can b both exhilarating and frightening, however.
    -
18. What would you do if you weren’t a lawyer?
    Photographer or ski bum. Maybe there’s still time left? I could take a bluetooth headset 2 the slopes & do bus. in powder. .
    -
19. How do you want to be remembered?
    Unless a person becomes historically famous, legacy is all about the memories one leaves with family, colleagues and friends….
    …So while I am not especially religious, I believe in “from dust to dust.”
    -
20. What do you do when you’re not working?
    Law is a jealous mistress as the old saying goes. Time is a precious commodity in short supply. So on off hours I recharge my…
    …batteries, enjoy time with wife/friends and try to beat my freshman-year son in fantasy football (he’s going down!).
    -
21. What advice can you pass along to the increasing # of lawyers currently under- or unemployed due to the economic crisis?
    Quoting Jim Carville, it’s the economy, stupid. Do not equate self-worth with job prospects. Keep faith in urself & ur innate value.
    -
22. And our final question for you: What advice do you have for people going to law school today?
    Enjoy being an atty., but remember most of lawyering is in small details. Master craft first before trying 2b creative.

Relevant advice Indeed. Thanks so much for tweeting with me today; I really enjoyed learning more about you & your practice.

And thanks much 4 the Twitterview, Lance. I’m honored to be your guest. Very early here (Calif.), so hope I was coherent.

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This is a video clip from the panel on Law and Policy for Social Media which I moderated at last week’s 140 Characters Conference in Los Angeles.

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Yes, it is manifestly true that, led by the iPhone, of course, wireless Internet-enabled devices are chewing up bandwidth on 3G and other cellular networks at an unprecedented rate. But is that really a crisis? FCC Chairman Warns of “Looming Spectrum Crisis” for Wireless Devices.

I’ve got a lot of respect for Julius Genachowski. But on this point, I suggest he is all wet. Look at the historical parallels. Thomas Malthus warned more than 200 years ago of a food crisis as the industrial revolution expanded populations, and that did not happen either. In wireless data, the technology has advanced by an order of magnitude in just the past 3-4 years, like fiber optics using WDM to cram more capacity into the same amount of bandwidth. What is 3g today is almost 4G in Japan and other nations.

So don’t bet against technology. Increased efficiency in wireless data protocols — OFDM, for instance — trumps spectrum capacity all the time.

Posted via email from glenn’s posterous

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There are lots of ways paternalistic regulation chafes against liberty and personal freedom, from helmet laws to consumer protection statutes. They personally drive me absolutely crazy. What business is it of government if as an individual one chooses to engage in “risky” behavior?  Since I am paying (yes, a LOT of money) for my own health care, and have never once used as much in benefits as premiums, how do politicians get off forcing me to change my own activities to reduce what they cavalierly decide are socially-unacceptable activities?

It is one thing to give incentives to induce individual decisions beneficial to a country’s citizens as a whole, for instance tax credits for green appliances.  But mandates are a completely different thing.  What if I just adore incandescent bulbs and want to keep using them?  What if, as is decidedly the case, I prefer to listen my iPod with ear-bud speakers and full volume, not using “soundcheck“?  There is no conceivable reason I should not be permitted to do so.

That means, for me, that however much I like Europe — and as a Formula One fan it is certainly a very desirable continent — I would never live there. Just yesterday, the European Union parliament proposed requiring all MP3 manufacturers to put a volume “governor” on their products, to protect users’ hearing.  EU to MP3 users: Turn that down!.  Well, like Lynyrd Skynyrd, I say “turn it up!” This is paternalistic regulation at its worse.

Wait, you disagree?  Sorry, couldn’t hear what you said.

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