• With cell phones to tell them the time, there is no need for a wristwatch.
• Email is just too slow….
• They never twisted the coiled handset wire aimlessly around their wrists while chatting on the phone.
• Unless they found one in their grandparents’ closet, they have never seen a carousel of Kodachrome slides.
• Computers have never lacked a CD-ROM disk drive.
• The first computer they probably touched was an Apple II; it is now in a museum.
• They first met Michelangelo when he was just a computer virus.

We all know that technology is evolving at breakneck speed. But it’s always interesting to see just what impact these changes are having on our next generation of workers, inventors and policy makers. It’s amazing how developments in technology have fundamentally affected their worldview.

The difficulty of predicting what technology is going to catch on, and the impact such technology will have on society, is obvious. However, another interesting issue is what impact technology will have on the law. The traditional mantra is that technology changes too fast for the law to keep up. Legislatures are hard-pressed to anticipate technological changes and deal with the legal issues that such changes create. However, in some cases legislatures have attempted to anticipate technological developments – often with interesting results.

I have been developing lectures for an online LLM course I will be teaching this fall in Internet and E-Commerce Law. I was reminded of two pieces of legislation that were enacted in the 1990s to deal with “emerging” technologies that can be seen as somewhat anachronistic in light of later developments.

The first is the Audio Home Recording Act of 1992. The Act was Congress’s response to a controversy between the music industry and the consumer electronics industry regarding the introduction of digital audio recording technology into the domestic consumer market. Everyone thought digital tape recording was going to be the “next big thing” and the music industry was concerned about the ability of these recording devices for piracy. Exempted from the Act were computers, which were viewed in 1992 as an unlikely device for music copying. Well, we know how well that prediction panned out. Portable music players, like the iPod, were not covered by the Act, while digital audio tape recorders (what are they, you might ask?) were. Neither the music industry nor Congress foresaw such technologies as the Internet, broadband, or audio compression (MP3) that would make the copying and transmission of music files over the Internet quick and easy. Oops.

Another interesting, but somewhat irrelevant law, is the DMCA provisions on copyright management information. In 1998, pundits saw a day when digital content files would contain “copyright management information” (CMI) that would be “read” by software and hardware devices and would control the uses that could be made of a digital work. For example, futurists foresaw a time when Internet users could download or share content files and the computer would read the CMI from the file and, depending on what the user wanted to do with the file, would automatically transmit a micropayment from the user’s bank account to the copyright owner’s bank account for an appropriate license. Photocopiers would “read” microscopic barcodes printed on each page of a book or magazine, which would determine whether a particular page could be copied at all, and if so, whether a micropayment should be made to the copyright owner for that copy.

Twelve years later, CMI technology is little used and certainly not a hot topic in legal circles or the courts.. The “problem” that proponents of the CMI legislation identified has never materialized. Oops.

That is not to say that legislatures should never legislate in anticipation of new technologies, only that they should be careful in determining which issues are ripe for legislation and which are not.

Perhaps they should ask an entering college student?

The Internet has become so embedded in most people’s daily lives that they find it noteworthy that they will be “offline” for even a few days. They often post their concerns on Facebook, not knowing what problems being unplugged may cause them.

On a more macro scale, many industries are finding it increasingly difficult to survive in this ever-more-connected world. While the copyright industries blame piracy for their falling revenues, the real culprit is the fact that the Internet has changed the way in which people consume content. If online piracy ended tomorrow, that would give only a temporary blip in revenues for the movie and music industries. However, over the long term, traditional entertainment will see a continuing decline in revenues simply because people have many new ways in which to spend their free-time and disposable income.

If we are looking for a “canary in a mineshaft” warning, just look at the publishing industry. The industry is in a free-fall. Borders UK has gone bankrupt, Barnes & Noble has put itself up for sale, independent bookstores are being shuttered at an enormous rate, and newspapers are closing their doors daily. The Federal Communications Commission is even talking about federal subsidizes for newspapers. Absurd, but true.

The fact is, if we haven’t reached the tipping point yet, we soon will. And when that happens, all the lawsuits in the world and all the government bailouts will do little to stem the tide of inevitable change. Those companies (and industries) that don’t adopt quickly will be swept aside to be replaced by new companies and industries that meet the needs of today’s (and tomorrow’s) consumers.

What those companies will look like, and how they will differ from existing organizations, no one can envision. Just like someone in 1980 would have been unable to even imagine companies like Facebook and Google, sitting here today, even the most savvy pundits are unlikely to be able to see what will take place over the next decade.

And as businesses and industries change, they will need lawyers who can help them chart a course through these massive changes. And that’s the good news for all of this.

Several years ago, the school began looking into how the Internet could be used to provide a totally online LL.M program. After an enormous amount of planning, our online LL.M program in entertainment and media law will be launched this fall. Internet law courses will be an integral part of that program. Information on the program is available here.

Restructuring traditional courses to work online has been – and continues to be – a challenging, but surprisingly satisfying, experience. It has allowed me to rethink each of the courses I have been teaching face-to-face, and to reimagine how the subject matter can be taught online. I have found it necessary to totally redo my syllabus, the way in which I organize my lectures, and what reading materials are best suited for a distance-learning environment. This effort has made me realize how some of these innovations can be integrated back into my traditional courses, which I believe will make the classroom experience significantly more engaging, and in the end more effective.

For many traditional law courses, which change little from year-to-year, once the syllabus is created and the lectures are “in the can,” most of the hard work of an online course is done. But in the area of Internet law, the subject matter is changing virtually every day. One of the major challenges has been to organize the materials and to structure the lectures and assignments in such a way that it won’t be necessary to redo the course entirely every time it is given (which will be three times a year). Instead of long-form lectures, the course has been designed with a series of shorter, topic-specific lectures. Some of the lectures will be usable from term-to-term with little or no updating. Other lectures will need to be re-recorded virtually every term to incorporate the newest developments in case law, statutory provisions and technological developments.

Of course, whether my course design will work online (or not) will be largely theoretical until I have been through the course at least once. Only when I look back at how well the structure worked the first time, and envision how well it will work the second and third time out, will I know if my redesign worked – or whether another redo will be in order. I’ll let you know in six months or so.

As a result, the Commission is looking for ways to leverage its existing powers to encompass net neutrality regulations. The Commission plans to draft more specific rules governing Internet companies is the result of the Comcast decision last month, where the D.C. Circuit panel agreed with ComCast that the agency had overstepped its explicit legal bounds when it reprimanded Comcast for throttling Internet access.

To address legal ambiguity created by the court’s decision, Chairman Julius Genachowski has announced that he will seek a new approach to Internet regulation — regulating Internet providers with a number of FCC rules that already govern phone companies. The telcos and cable companies, not surprisingly, are bitterly opposed to any regulation of their Internet offerings and are filling the coffers of their supporters in Congress, as well as preparing for court challenges to any new FCC regulations.

This is a defining moment in the growth of the Internet in the United States. Other countries have seen the growth of their digital economies stymied by telcos and other providers who charge high access fees, limit bandwidth and play favorites among websites and e-commerce providers. One reason that our digital economy has grown as quickly and as large as it has is because ISPs traditionally have provided access at a reasonable price to all comers. Now these entities are trying to change the rule of the game to the disadvantage of both consumers and online vendors. The government is the only entity that can protect consumers from those who put short-term profits over the good of the nation and its economy.

But that was several lifetimes ago (in Internet years), and the content industry is having a difficult time grasping the current reality. Content is no longer king. Instead, distribution is king.

For decades in the book, music and movie industries, distribution was viewed as a necessary evil. Antitrust cases forced some content creators out of the role of distributors of their own content, and other industries just found in easier to let others distribute their content. Content creators developed close relationships with the distributors of their product –- making sure that the distributors made enough money to stay in business, but not allowing the distributors to make too much money, or to have too much control over distribution of their content.

After all, those developing the content were the creative people who wore the tuxedos and designer gowns at the gala celebrations of their industry, while the distributors were those faceless minions who got their hands dirty warehousing and shipping content through a maze of wholesalers, jobbers and retailers, until that content finally reached the consumer. Content creators made money by the millions, while the distributors made a few cents per unit. Content creators were household names. And that was the way it was suppose to remain.

But no one told the Internet entrepreneurs. Steve Jobs, Jeff Bezos and others did not grow up answering to the entertainment industry content owners. They grew up talking to venture capitalists, investment bankers and major shareholders. As long as they had a vision for their companies and could execute on that vision to the satisfaction of their investors, they were free to do virtually whatever they chose.

In the early days of the Internet, the major interactions between the techies on one hand, and Hollywood and the publishing industry on the other, were generally in the area of licensing pre-existing content for videogames, CD-ROM titles and the like. At that time, the low processing speeds of personal computers (and videogame consoles), combined with low network speeds and limited storage capacity, did not allow for the distribution of music or movies online. While books and other printed materials could have been distributed online, few viewed that as a viable business model.

But that has all changed over the last decade, as computers have become blindingly fast, storage has become dirt cheap, technology has permitted enormous files of music and video to be compressed to a manageable size, and broadband technologies have made it possible to distribute content almost instantaneously to an array of devices – from computers to cellphone and e-book readers.

Today, digital content distributors, such as Apple’s iTunes Store, Amazon’s Kindle Store and Google, have established themselves as the gatekeepers for the distribution of music, books and virtually everything else. Content creators/owners are still acting as if they controlled the distribution of their own products –- when it is obvious to virtually everyone outside the hallowed halls of content companies, that they do not.

That is not to say that the content creators are incapable of establishing their own online distribution networks that could rival (or exceed) those of Apple, Amazon, Google, et al. But the fact is, they have not done so, and there is no evidence that they will do so (at least not in the near future). The question is why they have failed to do so.

There are myriad factors that have lead to the situation that content creators find themselves in today, but there are two that are paramount. First, those in charge of the major content creators today (the movie studios, the record companies and the book publishers) reached the top of their professions because they were good at executing the old business model. Today’s movie moguls were good at distributing films to movie houses (and more recently distributing movies on shiny discs for home viewing). The same is true for record company executives, who reached the pinnacle of their industry by being good at distributing shiny discs to consumers through a multi-layered distribution system. Similarly for print publishers, who know how to print and distribute paper-based products. Not one of these top-level executives became successful by executing an online, digital distribution business model. To them, the choice is either try to squeeze a few more years of profitable operations out of their tried-and-true business model until they can retire with a fat pension -– dumping the digital transition in the laps of their successors. Or to try to execute a risky, digital distribution model with a significant chance of failure. Not surprisingly, most have chosen the former -– using litigation and lobbying for new laws to help them prolong the old business model and slow down the digital juggernaut.

The second primary reason for their failure to develop a successful digital distribution model is the fact that content creators are still dependent on their existing distributors for the bulk of their revenues. Despite all of the hoopla surrounding digital distribution, the fact is that the vast majority of content is still delivered the old fashioned way — in tangible form. Content creators cannot alienate their traditional distributors, who also see that their business model is going away and are trying to hang onto their markets as long as possible. Content creators cannot be seen as favoring digital distributors over the traditional distributors and cannot establish their own digital distribution systems that would be seen as competing with their traditional distributors.

Content industry executives, who may have hidden their heads in the sand when digital distribution was in it infancy, fully understand where the future lies. Unfortunately, they are carrying an enormous amount of baggage that they cannot just jettison for a new digital business model. As a result, entrepreneurs who are not encumbered by such baggage have been able to establish themselves as the dominant players in the digital distribution market. They are the ones who are wearing the crowns and reaping the spoils from their investment in technology. They are the kings.

I use Google Reader to help me locate interesting blog entries, news articles, law review articles, etc. I subscribe to slightly more than 500 different blogs, so I receive hundreds of items per day from Google Reader. I spend on average about two hours per day reviewing all of these entries.

I review each entry to determine whether it is on topic, timely, etc. If I think it is, I then highlight the title of the article and use bit.ly (a URL shortener) to generate a tweet. The tweet consists of the title of the linked article (in quotes), plus the shortened bit.ly URL. I then post the finished tweet to the appropriate Twitter account.

You may see other tweets that contain the identical title (in quotes). That means that the other Twitter user used a process similar to what I have just described. It is a fairly standard process used by Twitter users who post the same types of tweets that I do. But usually the URL will vary, depending on what URL shortener they used.

Hope that explains the process. If you have any further questions, please feel free to contact me directly at mdscott@swlaw.edu.

There is no hard-and-fast definition of “network neutrality.” However, as a baseline, “network neutrality” (or “net neutrality”) should include the general principles that ISPs that provide access to the Internet should not be allowed to discriminate between users, websites or content. ISPs should provide the conduits for the exchange of messages, data and content, and should otherwise stay out of the way.

The Federal Communications Commission has jumped into this debate in its Comcast ruling on August 20, 2008, where it held that Comcast had violated the agency’s Internet Policy Statement when it blocked certain applications on its network. This practice, the FCC concluded, “unduly interfered with Internet users’ rights to access the lawful Internet content and to use the applications of their choice.”

Comcast appealed to the U.S. Court of Appeals for the D.C. Circuit, as have other public interest groups. Comcast argued that the FCC does not have the authority to enforce its Network Management Principles and the Commission’s order was invalid for that reason. The FCC argued that it has ancillary authority under Title I of the Communications Act to implement the broad statutory goals for an open, user-controlled Internet laid out by Congress.

A recent hearing (January 8, 2010), before the D.C. Circuit, did not go well for the FCC. The three judges were openly skeptical of the Commission’s assertion that several provisions in various laws, including the 1996 Telecommunications Act, gave the FCC the ancillary authority required to regulate network management.

If the appellate court rules against the FCC, which is likely, there are several avenues that the Commission can pursue. It can appeal the decision to the U.S. Supreme Court. It can also go to Congress to ask for legislative authority to pursue network neutrality.

It is also possible that the Federal Trade Commission could step in and develop network neutrality principles, under its general authority under Section 5 of the FTC Act, to go after unfair and deceptive trade practices.

To a great extent, the future of the Internet depends on enforceable network neutrality rules. Without them, the Internet may become balkanized, with different ISPs applying different rules to websites, users and content.

Rupert Murdock, head of News Corp., and Dean Singleton, chairman of the Associated Press, have both singled out Google, claiming that Google is “misappropriating” their news. They claim that Google should be forced to pay to link to the news articles that they already post online – for free. Or, in the alternative, or perhaps in addition, they want to charge Internet users for access to that news.

What they don’t seem to realize is that news is NOT the issue. Instead, the problem with newspapers is that the Internet is a much better place for most advertisers than print publications. It is the loss of advertisers that is killing newspapers, not Google.

It is Craigslist, and eBay, and a thousand other online services that have siphoned off newspapers’ classified ad revenues. Once viewed as one of the most lucrative revenue generators, classified ad sections today are a shadow of their former selves. Those advertising dollars have moved online.

The same is true for display ads. For Macy’s to advertise a nationwide sale, it must either pay local newspapers in every geographic region in which it has stores to run multi-page ads (at enormous expense), or it can spend a fraction of that money to place those same ads on its own website, as well as mounting an effective email marketing campaign directly to its customers. It’s no wonder that the big, fat Sunday newspapers of yesteryear are now about the size of a Tuesday edition.

Newsstand and subscription revenues don’t ever cover the costs of distributing newspapers, let alone the costs of an editorial staff. No matter what Google does, if newspapers can’t attract and maintain advertisers, they are doomed.

Much of the technology underlying clean tech is patented and licensed like any other technology. The licensing skills that lawyers have developed for other fields of patent licensing are equally applicable to clean tech.

Similarly, much of the money being invested in the development of clean tech is venture capital money, and the deals involving clean tech companies are not significantly different from those done in the IT industry. Indeed, many of the VC companies and lawyers who have worked for decades in the IT venture capital area are also working in the clean tech field today.

The same is true for corporate law, securities law, employment law, etc. The fact is, most of the laws that apply to an Internet company also apply to a clean tech company.

Another force that is moving IT lawyers into the clean tech area is the fact that many of their larger clients have huge server farms, which use enormous amounts of electricity and generate large amounts of heat. These companies realize that if they are not proactive in moving to clean technology for electricity generation, they will be targeted by politicians and activists who are concerning about greenhouse gases and global warming. These companies see the necessity of investing in clean tech – both in developing their own technologies and in utilizing other people’s technologies to deal with these problems. Their lawyers increasingly are being asked to provide them with legal counsel as they move into the clean tech area.

That is not to say that there will be a lessening of developments in the IT law area. But it is clear that technology lawyers are expanding their expertise into legal areas that a decade ago they probably never thought they would be involved in. Never a dull moment!!

The program will be divided into four panel discussions addressing a variety of topics, including:

1. The New Government Energy Policies and CleanTech’s Opportunities: Incentives and Market Drivers

2. Learning from the World’s Renewable Energy Leaders

3. Clean Technology Innovation and Protection (focusing on cleantech patents, licensing and tech transfer)

4. Financing Clean Technologies

The keynote speech will be given by Ted Flanigan, President, EcoMotion, Irvine, CA

More detailed information on the event, as well as a copy of the conference brochure, is available here.

The cost for the entire event is only $195 (early bird discount) and 5 CLE credit hours are available. (Space is limited to 95 attendees, so early registration is advised.) Online registration is available here.

I look forward to seeing you and your colleagues at the Summit. If you have any questions, please do not hesitate to contact me directly at mdscott@swlaw.edu.