Around the time of the dinosaurs, a four inch long creature named Morganucodon oelheri ("Morgie" to his/her friends), scurried between the feet of the dinosaurs. Morgie, a nocturnal, warmblooded, fur-covered animal, holds the distinction -- this week at least -- of being the "first mammal."

Two hundred and ten million years ago, Morgie was scarcely noticed.  Life went on like that for quite a while. Then, as the Smithsonian tells us, "After the extinction of the dinosaurs 65 million years ago, more than 40 new groups of mammals arose from this common ancestor. As climates and habitats changed, some species adapted, but many went extinct. But this tiny mammal passed on its DNA to billions of descendents, including humans."

Morgie survived because he was agile, small, able to hunt at night, and adaptive.

Let's suggest to ourselves that an "eBay for services" will soon arrive on the scene, with small, nocturnal, agile, adaptive micro-firms doing work and passing on DNA in the form of metainformation about the individuals and groups involved.  Will micro-firms survive the increasing consolidation (creation of corporate dinosaurs) and changes (global disasters of various kinds) that we face?

Or will the capital commitments that are made in large corporations continue to be unbeatable?   What's important about these commitments -- these capital lock-ins -- is that they cannot be withdrawn.  Maybe a micro-firm can't attract that kind of capital. 

Maybe the corporate versions of Morgie and the dinosaurs will continue to share the same environment.  This time around, the dinosaurs may be here to stay -- particularly if the dinosaurs are capable of taking the long view.

(Thanks to Sarah Brosnan for the pointer to Morgie.) 

Handel had "one of the most majestic, tender, and human voices ever lifted in praise of life, of love, of beauty, and of the art of music."  

Why are the overtures to Handel's operas so long?  They're so long because Handel expected his audiences to be late.  Very late.  And he knew that they would be having passionate trysts on arrival, using the benches in the hall for this purpose.  The women wore hoopskirts.  Everything took a lot of time.  So the overtures gave everyone ample opportunity to settle down so that they'd be able to listen.  Attention, then as now, was a scarce resource. 

Because the internet does away with time as well as distance (not to mention visible concert halls), what does it take to get people to pay attention to something as lovely as a Handel opera? 

People don't always act rationally.  If social ties are stronger, they may not ask for exact returns on their investments.  If they see someone being treated unfairly, they may act -- even though they're not themselves part of the unfair transaction.   

There's a movement out there -- soon someday to be a standard college department -- to refute the assumptions of homo economicus.  There are people doing studies of chimpanzees dutifully returning tokens in exchange for grapes (or not).  There are people doing studies of the effects of emotion on human learning and memory.  There are people wondering what effect such empirical studies may have (or should have) on law and corporate behavior.

I had a fine time this past week listening to the chimp and brain studies in particular.  (We law professors have terrible graphics.)  This gets interesting when intangible "property" is being examined.  Do humans have an instinct to uphold property, but perhaps not to uphold intellectual property in the form of bits?  Does this suggest that efforts to perfectly enforce tech mandates that hobble machines may be not only unconstitutional (because they give no opportunity for fair use) but also inhuman?

Someone at a recent meeting said that a software product embodying Hermann Hesse's Glass Bead Game was being developed.  Another person said "I loved that book!" with enormous enthusiasm -- but then couldn't remember what it was about.  So I'm reading it.

I think I'll remember the Glass Bead Game:  Intellectuals begin to see curves, trends, and universal constants across musicological, mathematical, philosophical, and any other field you can think of.  So they develop a language of symbols and moves that are abstractions of these universalities, and they come together to play games with these abstractions with intense joy, exultation, and engagement.  The community that plays the game is peopled with scholars who write famous treatises like The Reception and Absorption of Slavic Folk Music by German Art Music from Joseph Haydn on. 

This community is an elect group, chosen and trained from a young age.  It starts as a utopian rarefied society, rigidly controlled and cultivated, and is enormously respected.  Things begin to decay when the connection between the world that funds this intellectual enterprise and the inner elect inhabitants of it becomes attenuated.

I can't imagine how the game will be made into a software product.  You'd have to take all the knowledge of the world and distill it into a few visualizations.  Sure, I'm a big believer in pictures, but I'm suspicious of reductionism -- I ran across a lot of it in music theory that made me frustrated and skeptical. (In fact, The Glass Bead Game has a heavy musicological/theoretical bent.  But no one in the elect community actually composes any music.  They just admire the serenity of classical themes.  Scary.)

And isn't the point of the book that such cross-disciplinary abstractions are beautiful but ultimately doomed?

I'm at a conference on Law and the Brain sponsored by the Gruter Institute.  Maybe I'll ask the other attendees how they feel about the Game. 

ICANN has released its draft new budget (pdf).  The document gives us a good look at how ICANN sees itself.  It's arguably an internally inconsistent view.

ICANN is growing.  This budget calls for ICANN to have almost 60 staff members by the end of the next fiscal year.  Expenses under this budget are predicted to be twice those of last year ($16 million v. $8 million). 

  2001-2002:  $5m
  2002-2003:  $6m
  2003-2004:  $8.3m
  2004-2005:  $15.8m

ICANN is providing value by providing services.  "Compliance" efforts affecting registries and registrars will be much greater under this budget. There are rumors that new registry services will trigger new fees paid to ICANN (see p. 17).   ICANN continues to work towards a process "for evaluation of proposed changes in registry operations."  (Not new Registry Services, a defined term under the contracts, but "registry operations.")  ICANN intends to provide better IANA services.  The budget calls for ccTLDs to recognize the value of these services and others and pay 25% more to ICANN this coming year; notes following the budget indicate that ICANN's "internal goals [for raising money from ccTLDs] are greater."

ICANN is under attack. The budget lists as one of ICANN's programmatic areas "managing developments springing from the UN's WSIS."  Although there's no line item given for this effort, it's clear that ICANN feels it is important to explain "the value ICANN provides to the worldwide Internet community."

Each budget of ICANN's for the last few years has been remarkable, and this one is no exception.  There is a great deal of emphasis on process in this document - the budgeting process itself is described three or four times, in various levels of detail.  By focusing on process, it's easy to sidestep what ICANN's actual role in the world is.  ICANN can say, "we do this, and this, and this, and publish this, and we need much more money to do it."  ICANN's vision is to monetize all transactions by every link in the chain (registries, registrars, and registrants) in order to fund its growth.

But what's ICANN's basis for taking all these steps?  What is ICANN?  It's clear that it sees itself as legislature, prosecutor, and executive all at once -- a pronouncer of policy and a compliance officer; an operational IANA service provider/customer service representative for registrants, and also a controller of registry "operations."  

This is the internal inconsistency that the budget reveals:  ICANN is under attack precisely because it believes itself to be (and appears to be) important.  ICANN should remember what it is:

• ICANN should go back to the use of a thin contract that contains only the essential elements of the consensus policy bargain.  With a thin contract, ICANN wouldn't need all this staff to scrutinize each step taken by a registry or registrar, and wouldn't be appearing to compete with the ITU.  The model proposed is clearly unworkable. 
• ICANN should refrain from using the leverage it has as a gate-keeper of new entries into the root zone file to impose complex regulatory policies (and fees) on new tlds.  ICANN should not see each new TLD and registrar as another revenue opportunity.  That it does so makes other countries wonder whether ICANN is indeed "doing Internet governance."  Paul Twomey is very good indeed at explaining ICANN's role as a forum for discussion of minor coordination issues.  That explanation doesn't fit this budget.

I've said this before.  And there's no limiting principle that would clarify the internal inconsistency dogging ICANN.  There is a feeling of inevitability in the air.  Nothing is the last straw, apparently. 

It seems like an important year for online policy.  The FCC is making strides towards treating all online applications alike.  The UN is getting into the internet governance (some people now call it "IG") game.  Every day brings news of one kind or another.

But on Friday I dropped in on the Harvard ILaw seminar very briefly, and during the 40 minutes I was there I heard two people talking about policy proposals they'd made over the last couple of years.  I said to someone near me, "This seems a little old."  He said, sensibly, "That's just because you're bored with it."  And someone else said to me, a little later, "You're just in a time warp," or words to that effect.

I feel a little like the older Schlegel sister, who has a dinner party of very trendy people who talk very quickly to one another about books and plays that they've all seen.  They flit from subject to subject, darting towards the new thing, alighting with joy on each bright fresh subject like a literary pack of hounds.  To this dinner party the eldest Schlegel invites Mrs. Wilcox from across the street.  Mrs. Wilcox is older, wiser, and quiet - she doesn't say much, and leaves early.  Mrs. Wilcox says something vague and soothing to Margaret Schlegel as she leaves, about how smart her friends are, but Margaret is cut to the quick.  She feels terrible about how Mrs. Wilcox has been treated, and in the end comes to understand what Mrs. Wilcox's wisdom is made of (you have to read the book).

There's a risk of darting from thing to thing ("Oh, ICANN, that's so yesterday") in this area.  I'm as subject to it as anyone else.  In fact, the nature of the medium we use (lots of news, infinitely interesting varieties of information) lends itself to fractured attention and a sense that events are rushing by. 

Following my Schlegel-ist feeling of this weekend, I'm chagrined.  I pledge to be more sensible this summer. 

Only connect! That was the whole of her sermon. Only connect the prose and the passion and both will be exalted, and human love will be seen at its height. Live in fragments no longer.

It's official:  Cardozo will be the site of a one-day Nethead/Bellhead conference on Tuesday, Sept. 28.  I'm hoping to make this as zippy and interactive as BloggerCon and as substantive as TPRC.  But shorter than either.  After being provoked, prodded, and challenged, you'll be home for dinner (if you live on the East Coast; if not, you'll get another day in NY, which isn't so bad).  I also need to plan deliverables coming out of the meeting:  white papers, comments to the FCC, studies.

All suggestions welcome.  I need help planning this, just as I needed help getting ready to teach cyberlaw (thanks for the assistance).  This is an authentic plea for help.  Maybe Kevin, David, Mary, Ernie, or James will have suggestions.

Someone who doesn't know anything about me except my phone number called me up and asked me to come play string quartets tonight.

There's a whole ritual to this.  You don't get to ask who the other players are -- it's like a dinner party in that way.  But there's no food.  You arrive and meet the other three.  There's some jousting:  who plays where, who knows who, who went to school where.  You try not to engage in too much of this, because, after all, it doesn't really matter.  All that matters is what happens when you sit down to play.

Usually, it sounds awful when you sit down to play for the first time, and tonight was no exception.  A quartet is four people, each of whom is Saving The Situation.  So movements are exaggerated, sounds are harsh -- it's just terrible.  You just have to get through that part.  Tonight we first read a fugue that one of the players had written "in school."  We praised him extravagantly.  That's traditional too.

Things usually get a little better as people stop being self-conscious and just play.  That happened tonight too.  We moved on from a little-known Haydn quartet to a better-known Beethoven quartet.  Sure, there were some destructive moments.  We will draw a veil across the scene, or at least across the sound of the scene.  But we made it through, together, and we ended up feeling great and as if we'd gotten away with something.  In the middle of midtown

Today was also a day for getting a NY driver's license.  There was a lot of waiting around, and a tremendous amount of jousting about credentials.  Without your original social security card, you just can't get a driver's license in this state.  The social security office here in NYC says that 75% of its transactions are people replacing lost cards.

It is usually awful to stand in line at the DMV, and today was no exception.  There was a chokepoint -- two people dealing with every single inquiry and checking every single credential.  But then (as with the quartets) the system started to work.  After the computers in the entire state went down, they came back up.  People were getting licenses right and left.  An almost tangible sense of bonhomie kicked in.  We left feeling great.

The quartet evening ended with a sense of purpose:  playing a lovely Mendelssohn movement.  All we got from the DMV was a temporary license.  Both groups (quartet and people getting licenses) disbanded and went off into midtown. 

The quartet is like the group-of-people-at-the-DMV in that they start out not knowing eachother, but end up chatting away.  But the quartet creates something (sometimes awful, to be sure) that is greater than itself.  The quartet might even be persistent, if the host manages to drag everyone back again to play.  And the quartet depends on interplay among its members to work.  The people-at-the-DMV are only following procedures and hoping to be allowed a credential that will allow them on airplanes. 

So the DMV is like a string quartet in that both have terrible, deadly moments that may, with luck, get smoothed over.  Both have people with roles that they play, and some people are more helpful than others.  But the DMV is not like a string quartet in that what it produces is the same every time -- a top-down credential, with a picture.  The quartet produces something different, something occasionally beautiful, and something ephemeral that causes us to think twice.  Some groups are more meaningful -- more metainformationally interesting -- than others.

I was struck by the Post's writeup yesterday of Helen Vendler's talk.  It is clearly right that the arts (and I'd say, specifically, music) provide the most "basic, most fundamental, first access to the world."  It is also clearly right that music and poetry are part of our physical worlds in ways we don't sufficiently acknowledge.  Listening to the world with the same intensity and attentiveness we devote to the arts (if we do -- let's hope we do) would be transformative for us.

When we read a line slowly, or listen attentively to a beautiful song, we are changed by this experience.  We understand suddenly how the words create the impression of the line and how the richness of the song is built on many layers, each with its own meaning.  Our minds work out these puzzles with delight, alternately filtering and focusing, awake to the contextual and structural relationships streaming by.  The work of art becomes a living synecdoche, standing (in that moment) for human experience.

If we listened to the world in the same way, we'd understand it and ourselves better.  We'd grasp why a particular platitude in a speech felt so empty to us.  We'd see the context of the speaker and understand why the speech was being made.  We'd be alert and curious and wise, listening attentively, hearing both the constant caustic and the bland banality and understanding why each had taken its place on the stage. 

If you listen to the world, you have to treat each note, each speaker, with respect.  If we were attentive, we would be empathetic, because we would have learned to appreciate and take on board the depth and complexity of those around us.  And we would be humble, because the music that had taught us all of these skills would always be greater than ourselves.  

So -- good for Helen Vendler, a new hero, and good that such a report can make its way into a major newspaper (an admittedly unedited newspaper -- maybe that's how this writeup got in).  It's nice to read about the eternal at breakfast.   

Earlier today the FCC held what it labeled a "VoIP Solutions Summit:  Focus on Disability Access Issues."  It was a four-hour festival during which no negative notes were struck.  The same message came across again and again:  we must regulate all ip-enabled services (not just VoIP) in order to ensure that the disabled -- the blind, the deaf, the hard of hearing -- have access.

The Chairman came in and gave a ringing peroration to close off the meeting [paraphrased]:

I've worked with the disability community over the last seven years, and the same criticism is always made:  accessibility is always retrofitted, always being bolted on at the end. . . . We need to work on these issues in these networks from the beginning.. . . This is vital. . . . I hope this isn't an event we'll celebrate having happened on this day in May, but really an inauguration of a relationship -- a demonstration as to how to protect core values in a regulatory exercise. 

Paul Schroeder, from the American Federation for the Blind, made the point of the summit plain:

We're really talking about something far different from VoIP. IP-enabled services are far more significant.  How do we ensure disabled people have reliable access?  Through regulations.  Voluntary market forces simply don't work.  . . . . We need to move beyond the focus on voice and talk about content communication.  So many forms of content are of great significance to people like us and are not being made accessible.  I'm sure that businesses will create services and find a way to make money, but disabilities will be afterthoughts and retrofits.. . . . Regardless of whether we're describing telephones or something else, we can set standards for IP-enabled services -- and require them of PCs, software, ecommerce, electronic services. . . Use your ancillary jurisdiction.

Jim Tobias talked about the difficulty of registering and downloading client applications that don't have keystroke equivalents or for which screen readers don't work.  Installation wizards are very hard for the blind to use   When you sign up for free email services, bots are avoided by presenting passwords that are pictures; you have to type out the graphic text in order to sign up.  Blind users can't do this.  Other people talked about the need for adjustable volume controls, simultaneous voice and text display, and the ability to add text to any voice application.  Frame rates are a problem.  Companies are in fact developing applications and products that are useful for the disabled community (in fact, 10% of Sidekick users are deaf), but "to get more services and better prices," the disabled need regulations.

Claude Stout said that many disabled people rely on library access that in turn depends on support from universal service funds.  "We need to have a fee structure set up that won't rely on phone services only -- but will also depend on ip-enabled services fee structures."

The room was full of members of the disabled community.  Many of the speakers used sign language and "spoke" through interpreters.  The interpreters were so good and so smooth that it very quickly ceased to be strange to hear a man speak in a woman's voice.  Seeing-eye dogs waited patiently.

As I said, no one -- not one speaker on any of the three panels -- said anything negative about the prospects of FCC regulation in this area, or mentioned any possible unintended consequences of FCC action.  Indeed, I can't imagine who would have in this setting. 

One of the FCC officials present said, [paraphrasing again]:  "In a world of software, where incremental costs of designing functionality in at the very beginning are very low, shouldn't the goal be to identify requirements and design them in from the beginning?"  

Does anyone tell magazines that they have to be accessible to the disabled?  Or books or photographs or cars? 

Net applications are much more like magazines etc. then they are like hotels or libraries.  And the internet, unlike the phone system, was designed according to the "principle of good enough" -- "the open source tenet that you don't begin a project by over-engineering the end result."   Instead, you go with POGE and let things go their own way.  Net applications, including the WWW, are often built in the same fashion, and change all the time.  (Yet another reason why net-heads can't understand bell-heads.)

Three questions:

1.  The disability community is trying to get through the FCC what it couldn't get through either legislation (the ADA) or litigation (NFB's suit against AOL): a technical mandate for online applications.  Let's assume the merit of this quest -- as we assumed the merit of the FDA's attempt to regulate tobacco.  What would give the FCC the authority to mandate design standards for web sites, email clients, IM applications, and everything else that rides on IP?

2.  The premise seems to be that if we don't do something to find additional sources of income, universal service "as we know it" is dead.  Having internet applications pay a little something to the FCC in exchange for the privilege of being online sounds fine to the Commission.  But, again, who gave the FCC the power to tax the online world?

3.  What's the limiting principle on the "core values" the FCC intends to impose on ecommerce?  So far, they're focusing on disability access, E911 services, and law enforcement access.  (They probably need to make sure law enforcement access is in place so as to get the DOJ to help out with the BrandX case.) 

What kinds of content controls are next?  Indeed, aren't these disability access demands (keystroke equivalents, screen reader compatibility) a kind of forced speech?  A web site is much more a kind of speech than a Burger King:  you can require the Burger King to have accessible doors, but can you require a site not to use Flash?  Wouldn't it be a short step from there to require that web sites and applications clean up their language, only show flesh behind electronic closed doors, and goodness knows what else?  Not to mention the mischief the studios could do at the FCC in the name of "core values."

The IP-enabled services NPRM is like the broadcast flag in (at least) the following ways:

BF Speech:  Broadcast television is America.  We need to protect the medium that gave us I Love Lucy.  To save it, we should do anything we can (including imposing design mandates on any electronic device that might touch digital television).  If you're against doing this, you're against America.

The flag is just the first of many tech mandates that the studios will get out of the FCC.  Up next -- closing the analog hole and outlawing unauthorized P2P applications. 

Even though nothing can save broadcast.  It is a wasteland.

IP Speech:  Universal service is America.  We need to protect the subsidization plan that gave us telephone access.  To save it, we should do anything we can (including imposing design mandates on all internet applications).  If you're against doing this, you're against disabled people (and America).

This proceeding will implement just the first of many internet mandates that all kinds of people will get out of the FCC.  Up next -- CALEA access to everything, and consumer protections everywhere (not yet identified).

Even though nothing can save universal service -- it is doomed.

Greg Elin of Fotonotes talked last night about how cameraphone pictures are communicative acts.  People take billions of these pictures already, and as they snap an image they often think to themselves, "I'm going to send this one to my aunt," or "I'm going to post this one on my office wall."  The picture has a destination and a gesture ("here, I was thinking about you") inherent in its creation.

Greg's focus is making pictures, and objects within pictures, easily annotatable in a standard, flexible, and dynamic way.  He's making a great deal of progress along these lines -- watch for chat applications that incorporate Fotonotes.  We'll soon assume that any conversation includes (or, indeed, is focused on) writing about/on/with pictures.

Cameraphone pictures are already communicative; Greg wants to make the communication explicit.

I've loved Google Images ever since I first stumbled across it.  I stick pictures into emails to show where I've been -- because I don't take pictures (yet), I like using other people's pictures for this.  What if Google Images had pictures that were full of conversations and explanations and pointers?  Greg says, "Sure."  As he says, "jaw-dropping."

Howard Rheingold's Smart Mobs taught us that social interactions changed with messaging.  People feel themselves to be present where the message is read -- already at the party, say, even though they're half a city away, because they've been messaging with people there. 

What will "presence" mean when we're messaging with mixed-media/RFID-enabled cameraphones?  Does it bring distance back into the equation (as in "I'm here, taking this picture, and you're not")?  Or does it make us all feel present, in a small electronic way, wherever the picture was taken (when we see it on our screen)?  And with RFID capability built in, our presence in a picture will be a piece of data of record.  (Add FBI access to phone records that include pictures, and you can worry.  But we're in the ecstatic part of the story here, not the fearful part.)

What makes a picture such a desirable and interesting object, even one taken on the fly by a phone?  For the taker, it's bound up with looking for companionship ("I want you to understand where I was so that you can understand me," or "I want to remember where I was so that I can understand myself").  For the recipient, it's a communication and a gateway into another world. 

Pictures are decentralized electronic oracles that reveal a world mediated by the taker and understood by the recipients.  We all want to see them -- our eyes go to pictures and rest there, as we actively look with imagination and insight (compare the video experience, where we read for plot rather than expression most of the time, passively led by the video author).  And we'll have billions and billions of them online. 

Here's the elevator speech (might take a very tall building to carry out):

1.  The FCC wants to make sure that the universal service program doesn't run out of money.

2.  The universal service program has historically been funded by enormous access charges paid by long distance companies to local phone companies.

3.  Long distance companies want to make calls look local so they don't have to pay these enormous access charges.

4.  One way long distance companies can implement "access avoidance" is to insert an IP section into their call pathway.  Then they can say that the call isn't really a public switched telephone network call at all.  It's a VoIP call, which should be lightly regulated (if at all).

5.  VoIP (voice over IP) lobbyists have said that all IP-enabled services are the same, in that they all involve packets traveling over the internet, and so VoIP shouldn't be discriminated against in a regulatory sense just because it involves voice.

6.  But if most telephone calls are made over the internet-based network, the universal service program will run out of money.

7.  FCC has started dealing with this problem by nibbling at two ends of the continuum:  Pulver, which looks just like Napster and doesn't use the PSTN, won't be regulated.  But ATT's VoIP, which looks just like a telephone call with a little internet thrown in, and does use the PSTN, will be regulated.

8.  What does it mean to be "regulated"?  That's what the IP-enabled services NPRM is all about.  There, the FCC is proposing a discussion about social policy goals for all IP-enabled services:  

E911 and public safety issues (should all IP-enabled applications be able to call the police?);

Disability access (should all IP-enabled applications be able to support screen-reading and avoid graphical interaction?);

Payment of access charges to local phone companies (should all IP-enabled applications have to pay access charges?);

Payment for universal service obligations (should all IP-enabled applications have to fund universal telephone services?);

Tariffing and preemption and CALEA (should all IP-enabled services have to be tariffed, and should state regulatory roles be preempted, and should CALEA obligations apply to them?); and

Consumer protection (should all IP-enabled services have to provide standardized protection for personally-identifiable information, and meet other desirable consumer protection standards that are established -- such as prohibiting slamming and supporting "portability"?)

9.  Meanwhile, the 9th Circuit has said in the BrandX case that cable modem service is a telecommunications service, despite FCC efforts to say that it isn't.  Some portions of the FBI must be delighted with this holding, because it means that these sorts of services will be subject to CALEA -- meaning that these services can't be designed without making it possible for the FBI to have a back door.  Some portions of the DOJ will never give up on pushing for this.

10.  So the FCC is being pushed towards "regulation" of ip-enabled services from two directions:  Universal service has to be paid for, and the DOJ has to have access.  The ip-enabled services NPRM provides a menu of things that might happen, and we can't predict that all of these regulatory elements would be applied to, say, email, but there are powerful institutional reasons for the FCC to take a heavy hand.

Three questions for the demos:

1.  Why do we assume that the universal service program has to be funded?  Is this an untouchable third rail?  Are there other ways to provide communications services to rural areas?

2.  Why does the FBI assume that it should have CALEA interests in every application that rides over the internet?  Is this another example of the "new normal"?  Is there any link between all of this and the DOJ push for increased copyright police powers? 

3.  If the ATT VoIP petition is easy, and the Pulver petition is easy (ends of the continuum), what about everything in the middle?  What about PCs or handheld devices (which don't look like phones) providing applications that do everything a phone does, plus text and graphics and IM and anything else you can think of? 

(plus, isn't the WWW an "IP-enabled application"?  what about the DNS?)