The Law Office of Sestino Barone, like many New York law firms, receives thousands of inquiries every year from individuals and businesses who want to speak with an attorney. Many of the people who contact us are surprised to learn that we charge a consultation fee for a 1/2 hour meeting with an attorney. Perhaps this surprise is the product of many lawyers who advertise a free consultation.

So why do we charge a consultation fee?

The answer is complicated, and many of the reasons are related. First, unlike many New York law firms that advertise free consultations, you’ll actually meet with an attorney during your initial visit.  We’re not set up to process prospective clients like cattle.  Instead, you’ll be able to explain your situation to an experienced attorney and receive an honest evaluation of your claims and defenses.

Because we give this time and attention to each consultation, we’ve got to charge for the time the attorney could be working on existing cases. It is not an exaggeration to say that if we did not charge for consultations our attorneys could literally spend eight hours of every work day meeting with prospective clients, and have no time to serve the needs of existing clients.  Obviously, that’s a business model that doesn’t work.

But what if I just have one quick question?

We hear this question all the time, and in the past we even fell for it a few times. While it may be true on some rare occasions that an inquiry can be handled with a quick question and answer, that is a rare exception from the norm.  Unfortunately, there’s no way we can make that determination until committing to speak with you.

In order for us to adequately evaluate and discuss your unique situation we’ve got take the time required to hear the pertinent facts and ask relevant questions.  Only then can we provide a frank and honest opinion based on our years of experience.  In virtually every situation, this take at least 20-30 minutes.

For all of these reasons, and probably a few more I’ve neglected to mention, we charge a consultation fee for a 1/2 hour consultation with an attorney.  We do make every effort to keep this fee as affordable as possible, and we’ve been told by hundreds of satisfied customers that the expense was well worth it.

The fee for an initial 1/2-hour consultation is $100, with a $25 discount for pre-payment at least 24 hours before the scheduled consultation.

The Law Office of Sestino Barone reserves the right to change this policy at any time.

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Now quality, in the modern sense, is not simply the absence of defects. Instead, it reflects the user’s total experience with the product or service, including the costs, the ongoing service, and more. Renting a car from Hertz is a high-quality experience because they usually get your name on the board and you can get your vehicle quickly–it’s the same Ford that’s offered by other car rental companies. The services of your cable company usually are not a quality experience, considering you’re put on hold for twenty minutes in order to schedule an appointment that keeps you waiting for the cable guy for four hours.

So, is it possible to create the iPhone of law? You may respond, “our firm already is the iPhone of law.” Maybe a few of you are. But we recently surveyed in-house counsel. Twice as many said their company delivered higher quality to their customers than their law firms delivered to them. Again, maybe there are a few of you out there, a small segment.

Law traditionally has defined quality as most professional services define it–as a description of the provider. Ask most lawyers what quality is, and the answer will be a combination of a Potter Stewart-esque “we know it when we see it,” plus a detailing of their credentials, level of effort, absence of defects, and their anticipation of low probability events. Lawyers will sometimes talk about quality in terms of outcomes, but usually only when the outcome is good. When the case is lost, the deal goes south, or the derivatives go bust, lawyers distance themselves from responsibility even though that broader success is almost certainly what the client has in mind by quality.

Law has undergone a sea change, different from any other market for professional services. With the rise of the legal department, we no longer have the classic information asymmetry between the provider and buyer of professional services. As such, we are on a quick march to a more modern, complete notion of quality in law.

Rather than jump ahead to propose that definition, let me suggest that the way to get there is to follow the iPhone approach. Let’s start by looking at the three key steps Apple followed in creating the iPhone

1. Apple focused intensely on the user experience. It evaluated different phones and PDAs to learn what people liked and disliked. It studied whether people were using their phones for web browsing, email or voice services, or other applications. It looked at demographics and who was most mobile, who would use first. They didn’t just take people’s input as static, but tried to skate to where the puck was going to be based on anticipatable changes and what looked like unmet needs. While input came from many places, the decisions on what to prioritize came from one person with a unifying vision–Steve Jobs. In law, this might mean really focusing on a matter or a process. Is it about avoiding a problem or creating opportunity? How will people actually respond to the incentives provided? Does cost or delay create its own set of problems? And it will certainly mean moving away from the false notion of consensus as the mechanism of achieving excellence.

2. Apple really pushed the technologies. The screen resolution, network performance, typing interpretation, screen resizing and flipping, are all pretty remarkable. But the technologies are not there for their own sake, but in support of some aspect of the user experience. The technologies in law are not so sophisticated, but surely we can start to better understand how to use document automation, or collaboration, or more sophisticated search. We can use the technologies of connectivity to be closer to clients and better understand their issues. In the last generation we figured out spell checking, e-mail, and browsing, so none of this is that hard.

3. Apple worked with partners, they leveraged their ecosystem to provide complementary capabilities. No one has ever accused Apple of suffering from excess humility disorder, so the way they work with partners can be aggressive and in some cases exclusionary. But nice or aggressive, they are always mindful of their partners’ capabilities, and thoughtful of how those capabilities can enhance the customer experience. It’s never only about Apple. In law, this would mean lawyers thinking more broadly about all the aspects of the client’s world, and how their objective can be achieved, focusing on the outcome, and how to define the lawyer’s task in furtherance of it. A document, even a perfect document, is only a very small part of that solution.

Why is all this timely? Because regardless of what anyone would like, most companies are going to cut legal spending by at least 20 percent in 2009. If that cut happens in the absence of a thoughtful definition of quality, it will cause genuine harm. If that cut catalyzes a more sophisticated view of quality, it will probably do us all a world of good.

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Sky Reporter Home: Stories, mini-documentaries, slide shows and short films from Arthur Kent
Karzai promised the forum he would fight corruption. Meantime his Attorney General, Abdul Jabar Sabet, has yet to answer for the violent police raid he ordered two weeks ago against Tolo TV, the country’s leading source of independent news. Seven reporters were detained and beaten. Karzai has not commented on the raid. His information minister, Karim Khoram, is formulating ways to use a new censorship law to further reduce coverage critical of the regime.

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If I go to Google to perform a search and Google sends me the results; Google had to pay for the bandwidth they used to send me the search results, and I have to pay for my bandwidth in order to receive those same search results. My observation is simply that the same information got charge twice; once at the sending end, and once at the receiving end. Bandwidth had to be used to send it, which Google paid for; and bandwidth had to be used to receive it, which I paid for. That is currently the normal way information is charged on the internet, every bit or byte,which ever unit you prefer, is charged twice.

Now those against Net Neutrality are proposing that a third charge be add to every bit or byte in transit between the sender and the receiver, and who will pay it is unclear. But, what will we gain if someone does pay it? It has been argued that the money is need in order to build out the internet further, and with greater capacity. But, what assurances does anyone have that the money will be put to that purpose. My DSL provider currently does not provide me with the all bandwidth I am paying for, in fact Americans have horrible speeds compared to citizens of other country. So, how can I trust someone to give me what I am bargaining for, when I don’t think I’m getting now?

Current as I am writing this article there is a case in Federal court Verizon v. Vonage, supposedly centering around patent infringement. But, I think it has to more with the threat Vonage possess to Verizon monopoly on telephone calls. If Net Neutrality were to disappear then Verizon could just charge Vonage or Vonage customers for using Vonage’s service on Verizon’s DSL lines. While simultaneously offering a Verizon branded VOIP service which would not be subject to the same charge.

The rebuttal would be that Vonage’s volume of data is so much greater that they should be made to pay because they are getting the benefit of the lines. But, there is a fallacy with that argument and that is that the benefit is only one way, the owner of the dsl line who has put it to this use, VOIP, is also receiving a benefit. I believe that the purchaser of bandwidth has the right to use it however they chose. This third charge if allowed would in effect dictated consumer consumption away from most successful, most useful, and toward the less successful, less useful. It would punish merit, and reward the inept, over all causing the market to become less efficient.

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Law.com – N.Y. Lawyer Misconduct Fund Braces for Surge

N.Y. Lawyer Misconduct Fund Braces for Surge

‘Catastrophic losses’ in single case cause concernJoel StashenkoNew York Law Journal
April 16, 2007

Dishonest attorneys prompted the awarding of $7.1 million in 2006 from the New York Lawyers’ Fund for Client Protection, which warned Thursday that the fund is likely to start seeing claims from the largest case of lawyer theft in its 25-year history.

Last year, the fund paid out $1 million less than the $8.1 million awarded in 2005. The average awarded annually over the last five years has been just over $6.3 million. (The report is available at www.nylawfund.org.)

See the 2006 Annual Report and highlights from the report.

Officials say the fund’s finances are “very strong,” but claims for reimbursement from clients defrauded by Andrew F. Capoccia and two attorneys working for him in his debt-reduction practice could total $5 million to $6 million alone, although the claims might be spread over more than one year, said Timothy J. O’Sullivan, executive director and counsel to the fund. Several hundred, and possibly thousands of clients, may seek help once federal authorities distribute restitution payments, he said in an interview Thursday.
……………
THEFTS FROM ESCROW

While trying to anticipate a new challenge, the fund said an old problem — the theft of money kept in escrow by lawyers for downstate residential property purchases — continues to plague the system, though to a somewhat lesser degree in 2006 than in 2005.

Sixty-two of the 147 awards last year went to cover $2.9 million in real estate escrow losses. That was down from the 116 awards totaling $5.2 million the fund paid for escrow losses in 2005.

The escrow loses are almost exclusively a New York City and Long Island problem. Sellers’ attorneys there typically hold down payments for residential properties, often as much as 10 percent of the purchase price. Upstate, down payments tend to be much smaller and brokers usually hold the money.

A New York State Bar Association committee chaired by Ira S. Goldenberg of White Plains has been working for more than one year on a study of the real estate escrow process and ways to better protect clients’ money.

Alter said the theft of real estate escrow, which has accounted for 36 percent, or $44.8 million, of all payments from the fund since 1982, is “certainly not a decreasing trend.”

“It is not easily addressed,” she said Thursday. “Lawyers and clients, they get used to doing it one way and it’s often very hard to convince people to put in some safeguards and to change the practice. Most lawyers are good and honest and the honest ones don’t want to change and their clients don’t want them to change because it becomes more complicated.”

The Nassau and Suffolk county bar associations have also been studying real estate escrow practices.

In its annual report, the fund called for the adoption of a court rule requiring the transfer or protection of escrow funds held for clients in instances where attorneys have been suspected of or disbarred for misconduct.

Alter and O’Sullivan emphasized that only a miniscule number of lawyers are involved in dishonest acts that lead to awards. In 2006, 35 lawyers were responsible for the $7.1 million in reimbursements. There are about 229,000 lawyers in New York state.

Alter added, however, that every “blood-curdling” instance of lawyer dishonesty discredits the profession.

“It is something so far from what we are expected to do or how we are expected to behave,” she said.

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3. Welcome

You know this is getting serious when the ABA has taken notice of second life in it’s writings. Below is an excerpt from an article I found on the ABA Journals website. I may just have to publish my own Second Life paper that I’m working on.

Travel into Second Life––the virtual world where lawyers are having fun, exploring legal theory and even generating new business

By Stephanie Francis Ward

Beathan Vale was concerned about his local court system, which had only one judge.

As a member of the Confederation of Democratic Simulators, he took an active role in the development of his local government in the community of Neufreistadt. Ideally, Vale believed the community’s judicial branch should be modeled to resemble the U.S. Supreme Court. But its lone judge, an English barrister and fellow confederation member named Ashcroft Burnham, favored an English common-law approach. Burnham also got to personally select the court’s new appointees, and the lack of oversight didn’t sit well with Vale.

Ultimately Vale prevailed. Neufreistadt rejected Burnham’s court scheme—and the idea that partici­pation be limited to lawyers.

Both men meet on a regular basis to discuss—and often debate—the direction of Neufreistadt’s legal system. Yet they have never actually seen each other in person.

That’s because Neufreistadt isn’t an actual town, and Vale and Burnham aren’t real people. While they do exist, they do so within the realm of virtual reality, in an expansive cyberworld called Second Life.

Launched in 1999, Second Life is an animated, three-dimensional virtual world run by a privately owned com­pany called Linden Lab, based in San Francisco. Its investors include Amazon.com founder Jeff Bezos. Anyone at least 18 with a computer and a high-speed Internet connection can join, and millions have—about 3.3 million at press time, with more joining every day.

Among this growing group of participants are people who live as lawyers in both real life and in Second Life. They are drawn into Second Life for reasons including rainmaking and nation-building. Others say they are attracted by the myriad legal issues arising from—and existing within—this expanding alternative universe.

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If accurate, this would mean that some 200,000-230,000 active Second Life users are on average currently spending more on their in-world experience than any existing online world by far. (For comparison, a World of Warcraft subscription is but $15 a month, and that’s money paid to the Blizzard/Vivendi, not user-to-user.)
To summarize Tristan Louis’ conclusions, Second Life is relatively sparse according to its amount of active users, but absolutely economically lively based on the average amount of cash trading an active user’s hands.  Furthermore, even though Second Life doesn’t have an enormeous amount of active users, Louis predicts that that’s all going to change:

[I]t looks that, under the most conservative growth rate, we will see 3.5 million users registered and over 600,000 using the service by the end of April 2007. Under a liberal interpretation of the data, those numbers would shift to 9.6 million and just under 7 million. However, in the most likely case, it is probable that there will be 7.2 million users registered with 1.6 million logging in over the previous sixty days. Not too shabby.
“Not too shabby,” Tristan Louis concludes, but he also advises his readers “to go with the most conservative estimate because [his] data set is still relatively small. Even then, this type of growth mirrors some of the growth patterns we’ve seen in the early days of the commercial web and seem to support the contention that LindenLab is going to be a very strong player in the future.”
In response to Tristan Louis’ analysis of Second Life’s economic situation, Tateru Nino analyzed his analysis, ultimately judging that although many of the user-to-user transactions aren’t meaningful, there is still significant economic activity:
The way money moves in Second Life with tip jars and alternate accounts and refunds means that probably about half of the value given is double-counted. That would leave us with roughly 75% that we could count on, but let’s go the highly conservative route and say a mere 40% of that figure represents actual meaningful transactions, where there’s a net change in the distribution of funds that is in line with the stated figure. Averaging out Tristan’s weekly samples for December 2006, and then applying our own conservative 40% figure to it, we get a daily movement of L$ equal to $269,848 USD.

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I’m currently working on an academic paper which discusses the what is a virtual economy, whether those activities should be taxed, a how should they should be taxed. My current thoughts are leaning toward characterizing the realization events which give rise to tax liability as occurring when the income is withdrawn from Second Life, by converting the income form Linden dollars to real US dollars. I feel any other way would be unfair, because Second Life is owned and controlled by Linden Labs. Linden Labs could go bankrupt and take the income of their residents with them, and it would be unfair to tax individuals on money which they didn’t have full possession. Also, once the income leaves the virtual economy it gives the government something to attach, if need be, to satisfy any tax liability.

After all, the rights the users of Second Life and other MMOGs enjoy are a function of their Terms of Service agreements they enter into with the online game providers. As such, those rights are subject to that agreement, which include clause that allow Linden Labs to delete a users account for any reason, and in the event of dispute arising under the agreement, an arbitration clause.

So, in short, let the money leave the game before we worry about taxing it.

NEW YORK–If you are a hardcore player of virtual worlds like World of Warcraft, Second Life, or EverQuest II, IRS form 1099 may soon take on a new meaning for you.

That’s because game publishers may well in the not-too-distant future have to send the forms–which individuals receive when earning nonemployee income from companies or institutions–to virtual-world players engaging in transactions for valuable items like Ultima Online castles, EverQuest weapons, or Second Life currency, even when those players don’t convert the assets into cash.

Most governments are only beginning to become aware of the substantial economic activity in online games, but the games’ rapid growth and the substantial value of the many virtual assets changing hands in them is almost certain to bring them into the popular consciousness.

“Given growth rates of 10 to 15 percent a month, the question is when, not if, Congress and IRS start paying attention to these issues,” said Dan Miller, a senior economist with the Congress’ Joint Economic Committee, who is also a fan of virtual worlds. “So it is incumbent on us to set the terms and the debate so we have a shaped tax policy toward virtual worlds and virtual economies in a favorable way.”

Miller’s comments came during a Saturday panel called “Tax and Finance” at the State of Play/Terra Nova symposium, the fourth annual gathering at New York Law School of academics, lawyers, and other scholars to talk about the legal, social, and economic issues surrounding virtual worlds.

The panel was formed in the context of recent questions–first raised by author Julian Dibbel in his book Play Money and in an article he wrote earlier in Legal Affairs magazine–about whether the transfer of virtual assets, or players’ acquisition of virtual loot by, for example, killing monsters, creates taxable events.

“If you haven’t misspent hours battling an Arctic Ogre Lord near an Ice Dungeon or been equally profligate spending time reading the published works of the Internal Revenue Service,” Dibbell’s article began, “you probably haven’t wondered whether the United States government will someday tax your virtual winnings from games played over the Internet. The real question is: Why hasn’t it happened already?”

And while Miller’s committee began examining these issues in October, his comments Saturday suggested there could be wider future congressional oversight and a revised IRS tax policy. That’s in spite of the fact that Miller said his committee, and Congress in general, is not out to gouge virtual-world players.

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I came across this article and found the recommendations to be really useful. I already use Skype. But, by far the most useful and easiest to use would be zillow.com the easiest way to get an estimate of property values and comparison of property values of comparable properties in the neighborhood.

Ten Must-Have Web Sites for Solo Practitioners

By Rick GeorgesSpecial to Law.comMarch 12, 2007

Picking the best of anything is difficult. However, I decided to take a stab this month at the Web sites I use most frequently during a typical day of practicing law. Im not including the obvious ones: legal research and general search sites. Im aiming to point to sites that create a new source of information on the Web, and that leverage the interactive Web 2.0 space.

Here goes:

GoToMyPC is a remote-access Web application that permits me to access my office host machine anytime I like. It allows me to run updates, check my calendar and contact changes created by my secretary, and, in general, prevents running to the office to maintain the server, or to practice law. Its the solo lawyers best friend, runs flawlessly and costs only about $20 a month per machine.

There are conflicting views about the new property valuation site, Zillow.Com, which is a

mashup of Google Maps and property valuations and other information culled from public records. My take on this is that the range of values is a good starting point for looking at a residential property, and is better than no information at all. This is a great reason why Web 2.0 is going to change the landscape of real property law. I use it all the time in my residential transactions practice.

What if sending transcribed memos or notes was as easy as picking up the cell phone or telephone? Enter a new free beta called Jott. Remember that name, because I predict that lawyers will be using this service all the time. Just call Jotts toll-free number, speak your message and Jott will transcribe it and e-mail it to you. Sweet, simple and utterly addictive. Jottcasting, jottmumbling — whatever you call it — is cool, cool, cool.

What? Too lazy to pick up the phone? Joopz allows text messages to be sent directly from the Joopz Web site. Joopz is a Web-based text messaging service that enables “Web texting” — two-way communications from the Web to any mobile phone in the U.S. and Canada … and back

By way of full disclosure, I am a Law.com affiliated blogger. Simply put, I dont get paid to blog, but I get the exposure provided by the best law-related Web site in the world. Im not pandering to my publisher when I say that the Legal Technology page is one of the resources I check every day for tips, software, advice and education about my law practice. There are tons of free and trial software packages available for download, and the editors highlight the best law technology blogs on a regular basis.

Im amazed Im getting such use out of the ScanR application. In the past, there never seemed to be a scanner around when I needed one. I have flatbed scanners at home and at the office. But they dont fit in a briefcase, do they? Enter a great new Palm application, ScanR, that uses the Palm camera as a portable scanner. Just shoot a picture of a page and e-mail it to the ScanR people. They convert it into an image and make it available at the Web site. Very nice.

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It has become painfully clear that when even renowned humanitarians, like Bono of U2, are movings their assets to overseas tax shelters that we have basically create a system of taxation that is fundamentally unfair, because it is a system which no one complies with voluntarily, instead it is a system in which the majority find it to costly to avoid. We comply because it is too expense of the majority of people to pursue other options, like the ones in the article below. Maybe income tax isn’t such a good idea, after all, wealth redistribution has failed, because certain individuals with the highest tax burden find it cheaper to hire lawyers and consultants to avoid their tax liability than to pay it, which means the less well off are force to carry the load. Maybe this is the reason income tax wasn’t in the constitution originally.

Other Dutch shelters that Promogroup has arranged for the three have already paid off handsomely: over the past 20 years, according to Dutch documents, the musicians have paid just $7.2 million in taxes on earnings of $450 million that they have channeled through Amsterdam — a tax rate of about 1.5 percent, compared with the British rate of 40 percent.

The Rolling Stones are not the only celebrities sheltering income in the Netherlands. The rock powerhouse U2 has transferred lucrative assets to Amsterdam, as have other pop singers and well-known athletes, all of whom have used or continue to take advantage of the Netherlands’ tax shelters, according to a Dutch tax lawyer who requested anonymity because of client confidentiality agreements.
Entertainment companies and others that benefit handsomely from Dutch shelters include EMI, the record label, and CKX, the entertainment company that owns stakes in “American Idol,” the Elvis Presley estate and the soccer pin- up idol David Beckham.
When it comes to attracting celebrity wealth seeking shelter from taxes, the Cayman Islands and other classic Caribbean tax havens are receding in favor, according to tax experts here and overseas. While old-school, offshore tax havens — the warm ones with tropical fish, off-the-shelf holding companies with post-office-box addresses and scant regulation or transparency — still attract money, they are largely patronized, tax lawyers and entertainment bankers say, by hedge funds and private equity firms looking to protect lush trading profits from taxes.
But for earnings derived from intellectual property like royalties, the Netherlands has become a tax shelter of choice. With celebrities lending their names and images to clothing lines, licensing their hit songs to corporate sponsors, seeking roles in Hollywood and engaging in other ventures that generate significant taxable income, the Dutch system, which does not tax royalties, offers a nifty shelter.
The Dutch shelter is simple: royalties that flow into or out of a Dutch holding company are exempt from taxes. Although the nominal corporate tax rate in the Netherlands is around 30 percent, analysts say domestic tax shelters bring that rate down substantially.
“For 90 percent of the people who do this, the motivation for using these structures is tax minimization, or avoidance,” said Ton Smit, a tax lawyer at Tax Consultants International in Rotterdam, a firm that caters to celebrities, athletes and multinational corporations seeking to minimize their taxes.

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A high-volume, heavy-advertising New York personal injury law firm and a Washington, D.C., advocacy group are apparently the first to challenge the new attorney advertising restrictions that took effect Thursday, February 1st.

On the same day the new rules were implemented, Alexander & Catalano, with offices in Syracuse and Rochester, N.Y., and Public Citizen Inc. filed a federal lawsuit in the Northern District alleging the restrictions violate the constitutional right to free speech and impose anti-consumer limits on lawyers ads.

The suit, filed Feb. 1 in Albany, N.Y., seeks injunctive and declaratory relief in an attempt to prevent enforcement of the new rules by the disciplinary committees.

“The rules overall are a restriction on free speech,” Gregory A. Beck of the Public Citizen Litigation Group said in an interview. “They are not based on a concern that what is said is false, but on a concern of what some people think is poor taste. The [U.S.] Supreme Court has made clear you cannot regulate speech based on taste.”

Alexander v. Cahill comes as little surprise since several attorneys and advocates had questioned the constitutionality of the revised advertising rules in the Code of Professional Responsibility.

………

“The amendments appear to be motivated solely by a general distaste for certain forms of lawyer advertising and by discrimination against a certain class of attorneys who assist injured consumers,” according to the lawsuit.

Alexander & Catalano bills itself as the “heavy hitters,” a moniker that is probably barred under the new rules. The firm recently removed the slogan from its advertising materials, “at significant expense and, as a result, will lose benefit of widespread public recognition of its slogan,” according to the lawsuit.

The personal injury firm said it also fears that its routine use of phrases like “think big” and its promise to give clients “a big helping hand” in securing large verdicts or settlements is now prohibited.

Additionally, Alexander & Catalano complains that is has been forced to drop its splashy TV ads, which in the past have depicted its lawyers as towering giants leaping onto rooftops and running to the clients house.

“Because these scenes might be considered techniques to obtain attention and because the fictional traits exhibited by lawyers in these scenes do not appear to be relevant to the selection of counsel, Alexander & Catalano has been forced to alter its advertising campaign to stop running these advertisements,” the suit alleges. “As a result, the firms ability to market its services has been significantly impaired.”

In order to stay current with all the changes, or just read the statutes for yourself, I suggest buying:

It is a must for anyone planning to practice law in NY.

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Why would the big four music companies agree to let Apple and others distribute their music without using DRM systems to protect it? The simplest answer is because DRMs haven’t worked, and may never work, to halt music piracy. Though the big four music companies require that all their music sold online be protected with DRMs, these same music companies continue to sell billions of CDs a year which contain completely unprotected music. That’s right No DRM system was ever developed for the CD, so all the music distributed on CDs can be easily uploaded to the Internet, then illegally downloaded and played on any computer or player.

In 2006, under 2 billion DRM-protected songs were sold worldwide by online stores, while over 20 billion songs were sold completely DRM-free and unprotected on CDs by the music companies themselves. The music companies sell the vast majority of their music DRM-free, and show no signs of changing this behavior, since the overwhelming majority of their revenues depend on selling CDs which must play in CD players that support no DRM system.

So if the music companies are selling over 90 percent of their music DRM-free, what benefits do they get from selling the remaining small percentage of their music encumbered with a DRM system? There appear to be none. If anything, the technical expertise and overhead required to create, operate and update a DRM system has limited the number of participants selling DRM protected music. If such requirements were removed, the music industry might experience an influx of new companies willing to invest in innovative new stores and players. This can only be seen as a positive by the music companies.

Much of the concern over DRM systems has arisen in European countries. Perhaps those unhappy with the current situation should redirect their energies towards persuading the music companies to sell their music DRM-free. For Europeans, two and a half of the big four music companies are located right in their backyard. The largest, Universal, is 100% owned by Vivendi, a French company. EMI is a British company, and Sony BMG is 50% owned by Bertelsmann, a German company. Convincing them to license their music to Apple and others DRM-free will create a truly interoperable music marketplace. Apple will embrace this wholeheartedly.

If Itunes drops it’s DRM, then the choice between the ipod and the zune won’t be just a choice based on which one has the coolest features or design, but a more fundamental choice; to send a message to the RIAA and the music companies.

Once again, Steve Jobs may do well, by doing good, by giving the consumer what they want, and how they want it.

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Today, the auto and oil industries are doing the same thing. The overwhelming majority of scientists now agree that climate change is real, except for a few paid mouth pieces, which hope to convince us that the change is natural, or that it is exaggerated.

The same was true for lead in consumer products, like paint, and leaded gas. We have succeed in dramatically reducing the amount of lead in the environment. The same could be said for asbestos.
My point is not that we should be discouraged. We should be hopeful, because just as the argument in favor of cigarettes were eventually rebutted by the more persuasive arguments against cigarettes; the same is true for climate change. I confident that we will win the climate change debate, just a like we won the cigarette debate, or lead, or asbestos.

Be patience, history may be repeating itself, but the learning curve seems to be getting shorter.

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1. My 2 cents on Net Neutrality …

So if Liden labs had not granted all it’s user’s property rights to there virtual goods then, the IRS’s argument that they should be able to tax them would be weakened.

Years from now, it may be that “Second Life” could be as prominent on bar exams as contract law. This isn’t a prediction of a New Age approach to torts. “Second Life” is an online role-playing game with dynamics that could draw U.S. law into virtual worlds. The game created a lot of buzz at the recent State of Play II: Reloaded conference, co-sponsored by New York Law School and Yale Law School.The game’s developer, San Francisco-based Linden Lab, rocked last year’s conference by granting players intellectual property rights to their virtual creations. Most game developers, such as Electronic Arts Inc. and NCsoft Corp., insist that all tools and characters created in digital worlds belong exclusively to the company. “Second Life” players, in contrast, do own the characters and objects they construct. Players can also use the game’s scripting language to write computer code that alters what their creations can do.

The line between virtual worlds and reality is already hazy for online games, such as “Ultima Online” and “EverQuest.” Players trade $880 million worth of virtual goods each year using third-party Web sites or Internet cafes that match buyers and sellers, according to Stephen Salyer, the president of IGE Ltd., an online currency and property trading site. Participants use credit cards and the electronic payment system PayPal. Typically, the buyer requests a meeting time in the game’s virtual bazaar, notifying IGE of his character name. Similarly, eBay currently counts more than 10,000 virtual items for sale.

Developers such as Sony Online Entertainment Inc., which owns “EverQuest,” ban trades using real money. General Counsel Andrew Zaffron cites concerns about spoiling the collaborative spirit among players, dealing with customer complaints when sales go awry, and disrupting Sony’s ability to fine-tune and refresh game content. But IGE’s Salyer says such arguments are mostly a “head-fake,” noting that many developers deny the real-dollar connection to avoid disputes if real-world property law ever applies to virtual goods.

Linden Lab’s “Second Life,” in contrast, embraces a more fluid border. Linden founder and chief executive Philip Rosedale argues that a virtual world with property rights and real income opportunities stimulates sophisticated online communities. One player, for example, earns real money creating intricate virtual airplanes and selling planes, flight time and sky-diving lessons to other characters. Then again, that income might just bolster a real-life court claim in the unfortunate event of a digital heist.

“Second Life” might further blur legal lines with its adoption of devices such as rents on virtual land. Once players buy parcels, they must pay Linden’s monthly land-use fees. Translatable into U.S. dollars, such fees could further weaken the idea that players build, buy and sell just for fun, says Alan Behr, counsel at Alston & Bird and head of the firm’s electronic entertainment task force.

Cory Ondrejka, vice president of product development, acknowledges that the game’s property and economic policies could eventually support virtual property claims in real courts. But he argues that other gaming companies are in denial.

Linden Lab also insulates itself from real-world liability over created property with a user license agreement that mimics those of Internet service providers, says Ondrejka. An entrepreneur who develops a new virtual car model, for example, might have a copyright claim against an automobile buyer who makes unauthorized virtual duplicates. But Linden would avoid liability as a hosting service protected under the Digital Millennium Copyright Act.

U.S. case law to date doesn’t provide a good road map for potential litigation stemming from these disputes, says Behr. But some foreign courts have begun to accept the notion of virtual property. Last December a Beijing court ordered the restitution of one player’s stolen virtual weapons. Given that the United States takes a much stronger stance on the idea of property than the People’s Republic, it’s not hard to imagine such claims reaching American shores — and soon.

Nice place. What are the taxes?

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The involvement of the bar in the formulation of new attorney advertising restrictions marked an unprecedented collaboration between the legal community and court administrators, and one entered into with considerable consternation, a top judge revealed Thursday.Eugene F. Pigott Jr., now a judge of the New York Court of Appeals, said the presiding justices were reluctant to solicit opinions from the bar in drafting a new disciplinary rule on advertising, largely because they had never done so before. But ultimately the judges “knew what we didn’t know” and began a cooperative venture, he said.

Pigott, who was presiding justice of the Appellate Division, 4th Department, when the new rules were first crafted, suggested ground may have been broken for a new relationship between the rule makers and practitioners.

“This was the first time we ever asked for input,” Pigott said yesterday at the New York State Bar Association’s annual meeting. “But I think we knew what we didn’t know, and we didn’t really know how it would impact practice.”

The presiding justices last June proposed amending the code of professional conduct to add sweeping new restrictions on attorney advertising. However, rather than just impose the rules, the justices opened a comment period. Approximately 100 attorneys and virtually all of the major bar groups expressed concerns, which are reflected in the final product.

“This has been a terrific effort in collaboration,” said Michael R. Wolford, former president of the Monroe County Bar Association, whose guidelines on attorney advertising sparked recommendations by the New York State Bar Association. “What I find particularly interesting is the cooperation between the organized bar and the courts. This was not a case where something was imposed without an opportunity to comment, and I hope they learned from this effort.”

The new rules attempt to clamp down on what the presiding justices consider inappropriate advertising without violating the constitutional right to free speech.

………
Pigott said he had no constitutional concerns with the original, more restrictive proposal even though it promptly sparked threats of litigation.

“We are a monopoly,” Pigott said. “We have a right to practice law, and no one else can. In return for that monopoly, we give up certain rights.”

ADVERTISING ‘EXPLOSION’

Pigott said the new rules grew out of a concern of the presiding justices over the “explosion” of attorney advertising, and their suspicion that some of the ads were not only distasteful but misleading.

“We were concerned about lawyers who wanted to give the impression that they are the best, when they were often quite young and inexperienced,” Pigott said. “What you and I do as lawyers is serious. And on TV are these pop-ups who make a joke out of it.”

Pigott also offered insight into the workings of the administrative board of the courts, which consists of the four presiding justices and the chief judge. He said that no major disciplinary rule is changed without unanimous agreement. As an example, Pigott said he has pushed for mandatory legal malpractice insurance.

“I think it is a great idea,” Pigott said. “Others didn’t. So it will go nowhere. It is a little scary to think that I, as a presiding justice, can stop any disciplinary rule that comes across my desk.”
……..
Meanwhile, the New York Legal Marketing Association, a not-for-profit group, is putting together an educational Web cast on the new rules. Members and nonmembers can register for the Feb. 8 program at www.legalmarketing.org.

Andrea Stimmel, president of the trade group, said the number of lawyers who advertise is relatively minor.
…….
An explanation of the rules and their impact also can be found in an article by Anthony Davis, “Appellate Divisions Release New Lawyer Advertising Rules,” Jan. 22 and on www.nylj.com.

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Can you say “draft” ? Though, I must admit it was unlikely to happen even when the Republicans controlled congress, and even less unlikely now with the Democrats in charge of Congress.

Maintaining the worlds most powerful military establishment imposed a negligible burden on the average citizen. No wonder Americans viewed the volunteer military as the most successful federal-reform program of the postwar era. What was there not to like?

In fact, questions of efficacy or economy did not figure significantly in the decision to create the all- volunteer force. Back in the early 1970s, the object of the exercise had been quite simple: to terminate an increasingly illegitimate reliance on conscription. During the Vietnam War, thanks in no small part to the draft, the armed services had become estranged from American society. The all-volunteer force creation severed relations altogether.

This divorce had large implications. After Vietnam, citizenship no longer included an obligation to contribute to the nations defense. Military service became a matter of personal preference, devoid of political or moral significance. Although providing for the common defense remained a primary function of government, federal officials no longer possessed the authority to command citizens to bear arms. Henceforth, they could only encourage young Americans to enlist, offering inducements to sweeten the invitation.

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Can anyone say “malpractice” ? I believe this conduct is against the code of professional responsibility, a lawyer should not endanger his client unless he is confident he can deliver a persuasive performance. Though, I admire his client’s courage.

A judge in Farmville, Va., declared a mistrial in an attempted-murder case after the defense lawyer said he couldn’t continue his closing statement because he had lost his train of thought.

Judge Ernest P. Gates Sr. also suggested that attorney James E. Sheffield seek medical help.

Gates declared the mistrial Thursday in the case of a man accused of shooting a police officer in the leg in 2005.

Sheffield, 74, a former judge, returned from a recess to say that he could not continue the closing argument.

Russell Smith, charged with attempted capital murder, malicious wounding and use of a firearm, offered to finish the job himself.

“This is about me,” he told Gates.

The judge warned against it, and Smith requested the mistrial.

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I came across this article, it struck me as a little ridiculous, but just shows the pressure people are under while they are in law school.

we’re more interested in his other claim — brought against the law school — which alleges that Michigan’s grading system discriminated against the likes of him because of his poor typing skills. Reads the complaint: “Certain exams taken by [plaintiff] that required students to be skilled touch-typists in order to produce a competitive response resulted in borderline failing grades by virtue of the low volume of prose [plaintiff] could type in the time allotted as compared with other students.” He seeks an unspecified amount of money damages.

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AMMAN: As bloodshed in Iraq worsens, the tide of refugees fleeing the country is straining resources in the region and inflaming fears that Iraq’s sectarian conflict might spread to neighboring countries.

A new United Nations report says Iraq is “hemorrhaging” refugees in staggering numbers. Between 2,000 and 3,000 people are fleeing the country every day. After three and a half years of nearly constant violence, at least 1.5 million Iraqi refugees have moved to neighboring countries, reshaping the already complex demographic mosaics of Jordan, Syria and Lebanon.

Fueled by fear, Iraqi family follows trail of displacement – Africa & Middle East – International Herald Tribune

I had a discussion with a friend last week in which I made the following observation, to which he agreed. Everyone knows that the war in iraq is going badly. Everyone knows that Iraqis are leaving Iraq by the droves every day. But, no one has commented on how this population flight has impacted Iraq’s ability to be a functioning society.

My premise is simple, in order for any society to function, there needs to be different people with different skill sets, each selling and buying each others goods and service. In other words, in order for people to enjoy a good standard of living there needs to be specialization of labor. For example, a doctor needs to have a home built for his family; he needs a general contractor. The contractor, in turn, needs a carpenter, electrian, plumber, etc.. The doctor can focus on doing what he does best, practice medicine. The same is true for all the other professional I mentioned above. Each is able to enjoy the services provided by the other and each is able to focus on being proficent in his/her craft. This enables an individual to enjoy the benefits of other people’s skills by selling what he or she does best. This phenomena has been refer to by Adam Smith as the “division of labor“. An individual doesn’t have to be good at every skill in order to enjoy a good standard of living, just one skill that other people need.

My observation is simply that with so many people leaving Iraq every day, this division of labor, which makes modern living possible, may break down. In fact, if someone is a skilled professional such as: doctor, nurse, lawyer, plumber, mechanic, carpenter, etc…, they are more likely to leave Iraq. Why?, because their skill sets enable them to earn a living in another country. This leaves only two groups in Iraq, the poor, who lack the means to start a new life in Syria, Jordan, or Saudi Arabia, and the Militias, who want to fight. Of course, this cycle tends to reinforce itself, as the concentration of iraqis who are poor and/or part of the militias increases, so does the incentive for the Iraqis who occupy the higher echelons of society to leave. Or phrased a different way, a disincentive to stay and rebuild is created. The monied classes and those with the knowledge base that some refer to as human capital are precisely the people who are needed to rebuild Iraq. Yet, by virtue of who they are, it is also the easiest for them to leave and start a new life some place else. Not that starting a new life in some other counrty is easy, it just more feasible for someone with adequate financial resources than for some one without.

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    I’m not practicing law yet, but this site has some very good advice for practicing lawyers who are blogging, or considering blogging. The article covers the basics of design, where to get content and how to write it, building links and how to build an audience.

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