Each year, at the end of the year, I create a Legal Bytes piece intended to be more thoughtful and philosophical than the articles posted during the year. Thank you, in advance, for reading and allowing me to attempt to provide some insight and thoughtfulness to your day, in what I hope is an enlightening and entertaining manner. While my normal postings are designed to bring you news, updates and thoughts about timely events, this is one is longer – and arguably less exciting – and asks you to indulge me in a bit of philosophy, or what passes for an attempt at philosophy about the year past and the year ahead.
This article will contain no hypertext links to distract you; it will not have citations to offer more information about a snippet; nor will it dazzle you with factoids or intrigue you with today’s news. It’s just me philosophizing, my one chance during the year to ramble about where we’ve been and where I think we might be headed – without any credentials, qualifications or expertise to do so.
So loyal Legal Bytes’ readers, you don’t have to buckle up or fasten any seat belts. Just pull up an easy chair, open your Blackberry, your Kindle, your Droid, your iPhone, PC, Laptop, Netbook, Web-TV, PDA, or whatever your favorite Legal Bytes’ reading device might be; pour a glass of tea (or whatever your liquid of choice might be), sit back and enjoy . . . and again, thank you. So here goes.
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I’m a Star Trek fan. I’ve watched all of the television episodes, starting from the day Captain Pike, bound to a wheelchair resulting from his own heroism, is taken to the very first virtual world I can recall being displayed in mass media. I’ve watched all of the Star Trek movies. I confess to being a victim of an "even number" preference, culminating so far in this last Star Trek – certainly among, if not the favorite of all of them.
Computers that can search for anything and everything. Touch screens and voice commands. Warp speed and instant communication across multiple languages and without regard to geography or time zones. All that with a bit of humor, a bit of clever philosophy and a social network (crew) that have hugely diverse (one might say inter-planetary) ethnic, cultural and racial characteristics, and at the same time work seamlessly together as a team. More than science fiction, Star Trek is really science within fiction, and a fiction that might just be reality if we close our eyes long enough and hard enough. Most of all, to boldly go where most of us have never gone before isn’t really referring to space as the "final frontier," is it?
Now I know not everyone is a Trekkie, and I confess that while I am a big fan, I’m not really obsessed. I don’t go to conventions or wear uniforms, nor do I run around screaming "Beam me up," although I do confess to a feeble attempt at a Scottish accent when I respond "I can’t do it, Captain." So what is it that makes me able to watch over and over again and relish each scene and each episode, and look forward to each new motion picture? It’s not simply because I like science fiction. Nor is it solely because of an ensemble cast, made up of some extraordinarily fine individual actors who work extraordinarily well with each other and with scripts that combine serious science fiction with some tongue-in-cheek individualism, not always in human form.
Let me digress to a personal, but relevant anecdote. Many years ago I had the pleasure of actually meeting Leonard Nimoy. I won’t go into detail, but on behalf of a client, I had contacted Phil Gersh, the gentleman (a true gentleman) who represented Mr. Nimoy at the time, and Mr. Gersh must have relayed our conversation to Mr. Nimoy, resulting in a meeting in New York. It was over lunch, very relaxed and informal, but I admit to feeling an amazing sense of excitement, good fortune and privilege at being able to actually sit down and talk with someone I had long admired as an actor, writer, director and producer.
Although I politely did say I really admired his work – suppressing a very strong urge to really spend the entire time ignoring my client – we didn’t really speak much about Star Trek or any of Mr. Nimoy’s other work. But I left that lunch having learned something I only began to understand later. In much the same way that Mr. Nimoy’s two books – the first I Am Not Spock, published in 1977, and the second, I Am Spock, published almost 20 years later in 1995 – might teach us all something. No, this isn’t a book review, critique, promotional piece or apology for the titles. I’ll let everyone else debate those. But the titles reflect a recurring theme in Star Trek, something I would have really enjoyed having a serious conversation with Mr. Nimoy about – and frankly the real reason why I’ve always been a fan of his and of Star Trek. A conversation worth having then and increasingly relevant now.
Today, we live in a world of virtual reality, borderless social networks, a world where many of us have profiles, and create or transmit messages, words, images, thoughts and ideas instantly to millions, if not billions, of people – just like us, but not like us. We are watching as distinctions between work and play, home and office, education and career, are being lost, while distinctions between advertising, entertainment, education and information – between reality and imagination – are converging and blurring. Now let’s get real here. This isn’t the first time. Printing presses with moveable type, radio, television, talking motion pictures, photocopying machines, telephones – if you need an example, ask yourselves why history books, written well before any mobile phones existed, refer to the industrial "revolution." We have witnessed, or at least have already documented, many revolutions.
This past year, we look back and remember the debates over how to monetize the growing amount of "free" content or the social networking sites that are popular, but often struggling to actually become profitable. We witnessed the reported victory of the Blu-ray optical format, at the same time traditional DVD sellers were transforming themselves into algorithm-driven digital distribution and delivery marketing machines threatening the "hard" copy DVD marketplace. Traditional media is declining, newspapers are unable to sustain traditional revenue models, and some of the largest radio and television broadcasters are either seeking bankruptcy protection or scrambling to reinvent themselves. Statistics continually show that consumers trust recommendations from each other more than from advertisers. Is that really shocking? Put an advertisement on traditional television – what’s the goal? Well, one commercial said it best – "then she tells two friends and they tell two friends and so on and so on." Duh, word of mouth is new? Not really. But the scale and capability is new. The behavioral targeting and traceability is new. Location-based and context-based advertising is new, and the sheer power of social media is new. United Airlines found that out this year, but then so did Ford Motor Company – each in its own way. Google, with its sophisticated search technology, Flickr as an image repository, YouTube with user-generated nonsense and good sense, and Wikipedia, for reference, are examples of the tools of the medium, and social media has become the message.
On the legal front (I am trying to stick to philosophy), we continue to wrestle with intellectual property protections, and as the lines between content distributor, content creator, entertainment provider or paid product-placement or celebrity endorser becomes less clear, the legal risks and liabilities, the nature of who is responsible for what, where and when, in our traditional legal system, is also increasingly unclear. All this in the context of some of the most dramatic events of our lifetime: financial crisis, health care crisis, housing crisis, nuclear crisis, climate crisis – some of us are actually becoming numb to the word. The sky can’t always be falling, can it? But these changing models are turning our legal paradigms upside down. This is not "C" for cosmetic change, nor a "C" for cookie change. This is fundamental and global change. We may have reached a "tipping point" in 2009, but who knows if it’s the tipping point.
We buzz about convergence and blurring of distinctions, but I think more than anything else, what I’ve come to learn this past year and perhaps glimpsed into 2010, is that art, science and humanity (a/k/a content, technology and social media) are the real convergent forces – shaped increasingly by innovation and ingenuity that enables all of us to create and share ourselves and our creations – for better or worse, good or bad – with an increasingly enormous, global body of humanity.
So permit me to return (with apologies to the first "Star Trek: The Motion Picture," which borrowed heavily from the original TV series) to the point of origin. Star Trek was art – fiction, acting, a performance played out on a virtual, imaginary intergalactic stage. Star Trek was science – technology enabling beings, some human, others not, to reach farther, higher, more insightfully into our universe. And, of course, Star Trek was social – its crew, a collaborative collection of multi-planetary, often quirky, individuals on a mission to search out other new worlds. To explore, make contact, learn and embrace – but not to destroy or interfere (at least that was the theory). To some degree, although not alone, Mr. Spock embodied what Star Trek was all about: convergence. Endowed with brilliant scientific prowess, yet bedeviled by distracting emotions. Capable of pure logic, yet also capable of melding his mind to become one with the minds of others. To learn and feel interactively. We are all Spock and not Spock, and perhaps the lessons of convergence that might seem dated since 1969 could use some freshening up. But then that’s why I loved the new Star Trek movie and was pleasantly surprised at the pivotal role Leonard Nimoy agreed to play, (both) as (and not as) Spock!
Although I’ve been writing and publishing Legal Bytes monthly since 1996, this is my first year in a blog format, where postings are made any time, rather than through a one-page newsletter at the end of each month. Writing, editing, cajoling contributors, categorizing tags, updating posts, keeping track of URLs and links, trackbacks and comments, making Useless But Compelling Facts more difficult than a one-click Google search and trying to limit Whatz Gnu? to things that are really relevant and meaningful to readers. At times it’s been exhilarating, frustrating, rewarding and exhausting – sometimes all at the same time. But I must confess, it’s about as much fun as a lawyer is permitted to have professionally, and, so far, your responses have been overwhelmingly positive and constructive. I welcome your thoughts and your feedback – become a part of, not just recipients of, the conversation on Legal Bytes. I would also be remiss if I did not thank, not just all of the lawyers for their contributions and Rimon for its support, but folks like Erin Evans and Rebecca Blaw who tirelessly yield to my deadlines and help get these materials posted. To Mike Scherpereel for his unswerving marketing support and pitching in no matter what the need, and to Lois Thomson – proofing, editing, making suggestions and actually reading Legal Bytes. What a team. I could not do this without them.
Of course, as we watch the first decade of our new millennium fade away and see 2010 approach, I would like to conclude, as I began, by saying:
No matter what language you prefer (I don’t speak Romulan), it means "Thank You," and I offer my thanks to all of you loyal readers and fans, new subscribers and sporadic browsers.
Let me close with a poignant line spoken by Mr. Spock, borrowed from prior plots, recurring in the most recent motion picture and not coincidentally part of the real theme that runs throughout Star Trek. In the midst of all the sci-fi, whizz bang, hi-tech intergalactic adventure, with the threat of annihilation, personal danger and the unknown lurking everywhere, Mr. Spock, again simply and unhesitatingly, says to Kirk: "I have been and always shall be your friend." Thank you to all my friends. Live long and prosper.
Happy Holidays and Best Wishes for 2010