Google, Viacom and YouTube: What's Holding Up a Settlement
Today the Silicon Alley Insider in its post Google, Viacom: We Won't Settle YouTube Fight Out Of Court asked the same question about Google and Viacom that we've been asking about J.K. Rawling and a middle school teacher -- Whuzzup with the whole settlement thing?
As Alley reports, David Eun, VP in charge of Google content partnerships told Dow Jones Newswires ``we're going all the way to the Supreme Court. We're very clear about it.''
In the law biz we call this "posturing," and that "all the way to the Supreme Court" comment we call laughable posturing. Alley says:
Call us dreamers, but we still think both sides could kiss and make up before this gets to the Supremes. After all, the two sides were negotiating for months before going hostile. And Sumner Redstone's other media company -- CBS -- seems quite happy with YouTube. So while both sides can argue that there are important principles at play here, we're pretty sure they can get resolved with an appropriately sized check.
Of course it might well not be the size of a check but some other set of commercial exchanges, concessions, or synergies that will eventually settle the thing.
These are business people for goodness sakes. And never was a business person born who wants to establish Supreme Court precedent. Talk about giving away your power and control.
We welcome comments from more knowledgeable readers!
The Power of Persuasion: Obama's Oratory
If the political season(s) have gotten too serious for you, check out I've Got a Crush on Obama below.
Moment of Nostalgia: When I was in high school, I was too frightened to compete in the impromtu or extemporary speech categories and too lazy to prepare all those 3x5 cards for debate. Therefore I competed in state-wide speech tournaments through the National Forensic League in three categories -- humorous and dramatic interpretation and oratorical analysis. Drama and close-textual analysis.
The Real Purpose of this Post: Now you have the chance to view a high-level oratorical analysis (a New York Times video) about Obama's oratory with John McWhorter of the Manhattan Institute and Megan McArdle of The Atlantic.
The bottom line here on Barack vs. Hillary is Preacher vs. Policy Paper.
It's well worth your time to view the video because the Preacher is a trial attorney's style and Policy Paper the litigator's style. We're good at both. We just need to choose our style to fit our audience -- Judge or Jury?
And if you're in the business of persuading mediators or your bargainiing partner at a mediation? A little bit of both. Policy paper with the mediator and in attorney-to-attorney negotiations. Preacher in joint session or in mediator-orchestrated meetings between parties and attorneys.
Writers Guild Ready to Negotiate in Wake of Directors' New Deal
The Writers' Guild Responds with Predictable Petulance -- Analysis Later
Now that the DGA has reached a tentative agreement with the AMPTP, the terms of the deal will be carefully analyzed and evaluated by the WGA, the WGA's Negotiating Committee, the WGAW Board of Directors, and the WGAE Council. We will work with the full membership of both Guilds to discuss our strategies for our own negotiations and contract goals and how they may be affected by such a deal.For over a month, we have been urging the conglomerates to return to the table and bargain in good faith. They have chosen to negotiate with the DGA instead. Now that those negotiations are completed, the AMPTP must return to the process of bargaining with the WGA. We hope that the DGA's tentative agreement will be a step forward in our effort to negotiate an agreement that is in the best interests of all writers.
Directors' Guild Announces Tentative Deal with Producers
Director's guild press release below. Analysis will follow.
LOS ANGELES - The Directors Guild of America (DGA) announced today that it has concluded a tentative agreement on the terms of a new 3-year collective bargaining agreement with the Alliance of Motion Picture and Television Producers (AMPTP).
Highlights of the new agreement include:
- Increases both wages and residual bases for each year of the contract.
- Establishes DGA jurisdiction over programs produced for distribution on the Internet.
- Establishes new residuals formula for paid Internet downloads (electronic sell-through) that essentially doubles the rate currently paid by employers.
- Establishes residual rates for ad-supported streaming and use of clips on the Internet.
“Two words describe this agreement - groundbreaking and substantial,” said Gil Cates, chair of the DGA's Negotiations Committee, in announcing the terms of the new agreement.
“The gains in this contract for directors and their teams are extraordinary – and there are no rollbacks of any kind.”
Formal negotiations between the DGA’s 50-member Negotiations Committee and the AMPTP began Saturday, January 12, and were concluded today. Talks were led by Cates and DGA National Executive Director Jay D. Roth. They were preceded by months of informal discussions and nearly two years of preparation and research by Guild staff and consultants.
“This was a very difficult negotiation that required real give and take on both sides,” said DGA president Michael Apted. “Nonetheless, we managed to produce an agreement that enshrines the two fundamental principles we regard as absolutely crucial to any employment and compensation agreement in this digital age:
First, jurisdiction is essential. Without secure jurisdiction over new-media production—both derivative and original—compensation formulas are meaningless.
Second, the Internet is not free. We must receive fair compensation for the use and reuse of our work on the Internet, whether it was originally created for other media platforms or expressly for online distribution.”
The agreement includes the following gains in New Media:
- Jurisdiction: The new agreement ensures that programming produced for the Internet (both original and derivative) will be directed by DGA members and their teams. The only exceptions are low-budget original shows on which production costs are less than $15,000 per minute, $300,000 per program, or $500,000 per series—whichever is lowest.
- Electronic Sell-Through: EST is the paid download of features and TV programming. The agreement more than doubles the EST residual for television and increases the feature film residual by 80% over the rate currently paid by the employers.
Specifically, the EST residual rates will be
- 70% for television downloads and
- 65% for film downloads, above a certain number of units downloaded. Below that, residuals will be based on formula employers currently pay.
Payments for EST will be based on distributor’s gross, which is the amount received by the entity responsible for distributing the film or television program on the Internet. Having distributor’s gross as the residuals basis was a key point in our negotiations.
The companies are now contractually obligated to give us unfettered access to their deals and data. This access is new and unprecedented and creates a transparency that has never existed before. Additionally, if the exhibitor or retailer is part of the producer’s corporate family, we have improved provisions for challenging any suspect transactions.
Ad-Supported Streaming: After an initial 17-day window for free promotional streaming of Internet programs, companies must pay 3% of the residual base (approximately $600 for network prime time 1-hour drama) for 26 weeks of streaming. They can continue to stream for an additional 26-week period by paying an additional 3% -- or a total of $1,200 for one year’s worth of streaming. (During a program's first season, the 17-day window is expanded to 24 days to help build audience.)
Sunset Provision: Allows both sides to revisit new media when agreement expires.
“Our fundamental goal in these negotiations was to protect our interests in the present while laying the groundwork for a future whose outlines are not yet clear,” said Cates. “We knew that gaining jurisdiction over new-media production and winning fair compensation for the reuse of our work on the Internet were the key issues for setting a framework for the future, but we also had to secure real gains for our members in today’s world.”The new tentative agreement includes the following:
- Annual wage increases of 3% for primetime dramatic shows and daytime serials and 3.5% for all other covered programming.
- Outsized increase in director’s compensation on high-budget basic cable for series in the second and subsequent seasons.
- Annual residual increases of 3% for primetime shows and 3.5% for all other covered programming.
- Specific advances that pertain to members of the director’s team.
Details of the new agreement will be submitted to the Guild's National Board for approval at its regularly scheduled meeting on Saturday, January 26, 2008. The DGA’s current contracts expire on June 30, 2008.
Live and Free Vioxx Settlement Forum Conference
Thanks to Drug & Device Law for pointing us to the CSPAN video of a recent forum on the VIOXX settlement here.
This American Enterprise Institute forum will not be beneficial to plaintiffs who are searching for advice on whether to accept the settlement themselves. I refer those people back to their attorneys.
For reporters who are following this story at depth, the video includes a sophisticated presentation by Jones Day attorney Mark Herrmann about settlement strategy from Merck's point of view; a provocative presentation by Professor George M. Cohen -- who calls the settlement proposal an illegal antitrust conspiracy -- and a scholarly presentation by Professor Nagareda on the public policy issues raised by the settlement of mass tort claims.
For attorneys who have been retained to provide their clients with a second opinion, Professor Cohen's presentation will be a useful addition to their own research and independent conclusions. Attorney Andy Birchfield -- the only forum speaker with first hand knowledge of the negotiations leading to the settlement proposal -- may be of the greatest interest as he walks counsel for Plaintiffs through the structure, purpose and effect of the proposed settlement program.
Speakers in this forum include:
The incredibly well-spoken 
Mark Herrmann of Jones Day and the Drug & Device Law Blog.
Mark modestly fails to mention in his Blog post concerning this video that he is one of the speakers on this panel.
Herrmann discusses the following questions:
- did Merck's settlement strategy make sense; and,
- will this settlement buy Merck peace.
George M. Cohen, University of Virginia Law School Professor who discusses ethical issues pertaining to the "settlement program proposal."
Professor Cohen not only concludes that attorneys recommending this proposal to their clients are violating professional ethics, but asserts that it constitutes an illegal antitrust "conspiracy" as well.
Vanderbilt Law School Professor Richard Nagareda, author of the book Mass Torts in a World of Settlement.
Professor Nagareda discusses the settlement from a dispute resolution public policy standpoint.
As a contract between Merck on the one hand and the "lawyers who have a large market share" on the other, Professor Nagareda suggests that the settlement proposal is more an artifact of the law flowing from the Supreme Court's AmChem opinion than of any legal "connivance" among the Plaintiffs' attorneys or between them and Merck.
This settlement proposal, he says, is a valuable and creative peace-making transaction for mass claims.
Andrew Birchfield, an attorney at Beasley Allen and co-lead counsel on the Plaintiffs’ Steering Committee for the federal Vioxx litigation addresses the negotiations themselves and the structure of the settlement.
Andy says that in approaching settlement Merck required global peace -- that there couldn't be a "second round" because Merck had seen how disastrous open-ended liabilities could be for a corporation.
The plaintiffs' attorneys, says Birchfield, negotiated a settlement agreement designed to serve the best interests of each individual client no matter how strong or weak each of their cases might be.
Attorney Ted Frank of the American Enterprise Institute who onc
e represented Merck in the Vioxx litgation.
Frank talks about the law and economics of the settlement proposal, focusing on the weakest link of Plaintiffs' cases -- causation.
See also the Blog of the Legal Times coverage of this forum here.
Divide and Conquer: Negotiating the Writers' Strike Past Impasse
(image from Wikimedia Commons: the Power of Free Content Media)
When you've got several to hundreds of bargaining partners, there is always a moment where the optimal negotiating move is to cut separate deals with those who are weaker (less well-equipped to continue the battle); stronger (better equipped to take a negotiating loss); more favorably disposed to your position or less fixed in their bargaining posture than other members of the opposition coalition.
No one wants to be the last man standing.
In this town of hyphenates (actor-producer-director) it makes sense for the embattled WGA to cut separate deals with those whose hyphenated descriptions include the word "writer." So it is that Forbes.com reports via Reuters in Striking writers union reaches deal with Letterman -- and the New York Times reports in Letterman and Writers Guild Reach Agreement -- that Letterman's "writer-friendly" company gave the writers "what they are asking for [because] they deserve it, and we’re happy to give it to them.” (quote from NYT)
Forbes.com excerpt below:
Negotiations between the WGA and major studios on a new contract covering 10,500 striking film and TV writers broke down Dec. 7, but the union has been pursuing separate talks with smaller, independent production companies.
The WGA's Hermanson told Reuters that talks between the union and Letterman's company had produced a "full, binding, independent agreement" that includes provisions for paying writers for work distributed over the Internet.
Compensation for Internet content has been the main sticking point in talks aimed at ending the WGA strike, now in its eighth week.
Several other late-night television hosts, including Jay Leno and Conan O'Brien of NBC and Jimmy Kimmel of ABC, are planning to resume broadcasts of new episodes on Jan. 2 without their writers.
The Power of the WGA's Strike Video: Why We Fight
(image links to Amazon.com)
We've talked before (here) about Columbia University Professor Charles Tilly's work on reason giving "Why?" (also see Malcolm Gladwell's article on Tilly's work here)
Reading Tilly is one of those events that forever changes the way we look at the world -- in this case -- why we too often seem to be talking past one another.
The reason Tilly's book is so important to negotiators should be obvious. As negotiators, we need to persuade, cajole, influence, seduce, tempt, hustle and sell not only the principled basis for our bargaining position, but also why our interests, needs and desires should make a difference to our negotiation partner.
So it is with the Writers' Guild, still on strike one full month after they exchanged keyboards for picket signs and paychecks for craft services at the front gates of Warners, CBS, Paramount and the like.
Recently, we posted the WGA's YouTube ad for the strike, "Why We Fight: the Writers' Strike" on both our Negotiation and IP ADR Blogs.
At 3 minutes and 50 seconds, this video is a textbook example of powerfully persuasive techniques that negotiators, litigators and trial attorneys can all use to "win" the negotiation, the oral argument, or the jury verdict.
Why We Fight: Wrapping it Up in the Flag
The video's title "Why We Fight" is taken from a series of seven documentary films made for the U.S. government by the revered director Frank Capra (It's a Wonderful Life, Mr. Smith Goes to Washington). Capra's documentaries -- all entitled Why We Fight -- were instrumental in gaining and maintaining the support of a wary American public for our participation in the Second Wold War. The last "good war."
Before the viewer presses "play" on this video, its producers have already managed to wrap their short documentary up in the American flag -- carried by Capra -- a Hollywood figure more associated with can-do, hard-working, honest American "manhood" than anyone to walk off a Hollywood movie set since Ronald Reagan first strolled into public life.
Back to Tilly and the Documentary's "Reason Giving"
Although the Writers Guild of America is apparently still winning the PR war with the Alliance of Motion Picture and Television Producers, opinion can swifty shift as related businesses begin to feel the ill-effects of an entire industry at stand-still. This little video should stand them in good stead for quite some time and Tilly can tell us why.
Continue Reading...The Writers Explain the Strike in Three Minutes and Fifty Seconds
Thanks to the National Law Journal's Los Angeles Legal Pad for posting this short video "Why We Strike."
A post explaining the reason the reasons given here feel pretty darn persuasive next.
And, by the way, we're really happy to see theL.A. Legal Pad becoming much more substantive a legal news source than it originally was.
We're pretty certain we have Jason Siegel to thank for this improvement in content and thank him we do!
We're looking forward to watching it grow!
More Thoughts from a Labor Negotiator on the Hollywood Writers' Strike
(right: Julia Louis-Dreyfus on the picket line)
When we first wrote about the writers' strike and the active picketing just down the street here at Paramount on Santa Monica and CBS on Beverly Boulevard, we asked our friend Jim Stott for comment.
Because Jim's excellent comment was buried in small type in our "comments" section, I give it its due here by bringing it up into a post of its own.
(for "live" WGA Strike Blogging from the Los Angeles Times, click here)
After noting that his own comments are not "in any way intended to minimize, diminish or otherwise criticize the hard efforts of the writers, producers or federal mediator's efforts to reach agreement in this ongoing dispute," Jim opines as follows:
Often, both parties become "blinded by the sparks" associated with their lack of progress at the bargaining table. In those situations, a psychological phenomenon occurs wherein parties start start to blame the 'other side' through personal attacks; one against the other. As this practice grows, the underlying issues that really need to be discussed are subsumed by the superficial and surface diatribes.
Obviously - to the outsider - settlement can only be reached when the parties focus on the substantive and underlying issues as a mutual and common problem. Often, both sides fail to realize that a problem for one contingent group is ultimately a problem for all contingents. If force, i.e., a work stoppage or lock-out is used as a means for getting the 'other side' to soften their positions, the latent residual feeling caused by such an action is often long-lasting and will materially damage the ongoing relationship between all stakeholders involved.
In practice and theory, writers need work provided by the producers, just as producers need the work-product of the writers. In negotiations, it is this symbiotic internal relationship that is most important. Long after the work stoppage has been resolved, the latent and labile underlying emotional distrust and dissatisfaction will continue; often for years.
The federal mediator assigned to this particular case is exceptionally well qualified. He is a colleague and friend. I have no doubt that his professional services provided in this situation were of the highest quality.
Rarely however, even with the presence of a mediator, negotiations break down and reach impasse. Intractable parties are often the stock-in-trade for federal mediators. It not at all unusual to hear the warring factions self-diagnose their positions as being "miles apart." On rare occasions though, parties are so far apart that their tangential distances and differences, when measured in cost and dollars can be significant.
It would appear that producers and writers are faced with unanticipated outcomes associated with the expotential growth of the broadband internet capacity and online streaming video and audio. On the one hand, producers may see this as a marketing and distribution opportunity, by which they will increase audience participation and marketshare. While at the same time however, writers may see this exploding media as one in which their recognition, compensation and earning potential has been and will be diluted and otherwise diminished.
These complex negotiations are never easy and are often rocky. The challenge to all the stakeholders is to continue the conversation and continue to make progress, albeit ever-so-slowly. Even if their conversations are not face-to-face, but done through an intermediary; they are critically important.
As long as all dialogue has stopped, there virtually is no chance the impasse will self-resolve; thus the stand off will continue indefinitely. This is precisely what happened in the Caterpillar work stoppage which lasted over five years. All communication stopped. Distrust on both sides grew expotentially. Replacement workers were hired. All the while, the union pickets were outside the plant, locked out, while the plant production continued to grow.
While this is an extreme case in labor management relationships, it is my hope that productive conversations, clandestine and off the record or not, continue. This is the only way in which this dispute will resolve without inflicting extensive and long-lasting damage to all stakeholders.
Currently, Jim Stott is a Principal and Senior Consultant with Stott & Associates of Gig Harbor, Washington. Until recently, he was Assistant Director at the Straus Institute for Dispute Resolution, Pepperdine University School of Law.
Prior to joining Straus, Jim spent nearly six years as a Commissioner with the Federal Mediation and Conciliation Service (FMCS) in Los Angeles and Washington, D.C., where he provided collective bargaining mediation and negotiation consultation services to federal agencies, private and public sector employers, and labor unions.
Jim was also instrumental in the design and development of joint labor/management committee problem solving protocols used by Los Angeles Dodgers, Southwest Airlines, Toyota, Kaiser Permanente, Boeing and Walt Disney Studios.
In his professional and academic career, Jim mediated more then 1,500 disputes. The majority of these conflicts were associated with employment, labor/management or collective bargaining issues. Jim has also provided pro-active and pre-emptive conflict management design systems. In his teaching and coaching capacity, he has taught mediation protocols and processes to over 1,500 students in academic settings, court programs, international labor unions as well as management/employer groups including CUE.
Jim holds a Bachelor of Science Degree in Business and Management from University of Redlands, as well as a Masters Degree in Dispute Resolution from Pepperdine University School of Law.
THANKS FOR THE GOOD THOUGHTS JIM!!
WE MISS YOU DOWN HERE IN SOUTHERN CALIFORNIA!!
Despite Writers' Last Minute Concession for Federal Mediator, Well-Funded Strike Enters Day Two
(Jay Leno who says "no writers, no show" -- photo from Yahoo Entertainment)
This very local news on the Writers' Guild strike is just in from the U.K. -- Writers Block Hollywood as Strike Takes TV Shows Off the Air (excerpt below, and kudos for yet another unknown artist of the terse and witty headline).
On Sunday, a federal mediator made a last big push to avert the strike. The Writers Guild made one big eleventh-hour concession, dropping its insistence on a doubling of royalties from DVD sales but that was not matched by anything substantial enough from the producers to clinch a deal.
After three months of contract negotiations, which never entirely looked like producing an agreement, both sides are extraordinarily well prepared. The writers have commandeered 300 strike captains on both coasts who will direct pickets and other protests, and have amassed a strike fund of about $12.5m (£7m)which they will farm out in the form of loans to the neediest writers and their families.
In the meantime, you can see Jay Leno and Julia-Louise Dreyfus on the picket line (see TV Squad here on Leno handing out Krispy Kremes to strikers) down the street here in front of the famous Paramount Studio Gate if you click on the L.A. Legal Pad's coverage of the strike which links to a Channel 2 newscast featuring those well-known comedians.
We'd love to hear from any of our readers who have experience negotiating labor disputes.
Organizations in Need of an Effective and Efficient ADR Program
(right, the bright and beautiful Miss South Carolina, now at the Wharton School of Business; photo links to the NYT article on the Pageant's broken promises)
Before there's Miss America, there's Miss California, South Carolina, Oklahoma and the remainder of the fifty states.
The problem?
The local "Miss" pageants -- the stepping stones up the ladder to Miss America -- pretty much all offer scholarships as prize money to winners, many of whom may well not be able to begin or complete their university studies without it.
Apparently, some of the Miss America pageants' lower reaches (franchises) are not honoring their promises to provide these scholarships to the beautiful, dynamic and talented young women who become Miss New Orleans or Los Angeles.
According to this morning's New York Times article on the issue, at least one young woman was required to file her demand for the promised scholarship money from the Miss Five Boroughs Scholarship Pageant in small claims court.
The REAL ADR Option
As any attorney (and lots of others know) winning a small claims judgment is often a phyrric victory. No one tells the regular people who line the walls of the daily small claims calendar-call that it will probably be difficult (if not impossible) to collect their judgment.
If your dispute is sexy however -- and how could Miss Louisiana or Miss Carnegie, PA not be -- the real ADR is the court of public opinion.
After winning her case by default in small claims court in Manhattan against the Miss Five Boroughs franchise, the scholarship winner
took her story to a local television station. She was paid within two days of the broadcast of her account, she said. The organizer of the now-disbanded pageant did not return calls for comment.
“Basically, if I hadn’t gone after them, I wouldn’t have gotten my money,” [winner] Ms. Songhai said. “There is no real checks and balances to make sure the contestants get their money.” She said that competing in Miss Five Boroughs was fun, but added, “They are disorganized and they are bad with money management.”
Scholarship? How About a Few Used Ball Gowns?
The Times article again:
Saidah Story won a $1,000 scholarship as Miss Inland Empire 2003 in California, but her mother, Renee Wickman, said the pageant director informed her that there would be no scholarship.
“Instead of the scholarship, she was like, ‘You can take these gowns,’ ” Ms. Wickman said.
The pageant folded after that year. Bob Arnhym, president of the Miss California Pageant, said the Miss Inland Empire director moved to Canada because her mother had fallen ill, but had notified the state she had given Ms. Story “the full value of the scholarship.”
Despite contractual agreements, the state organizations say they have only limited enforcement of local scholarships. . .
In theory, state pageants could take local pageants to court, but “that legal battle is prohibitive financially,” Mr. Brown said. “It’s not worth doing that for a scholarship which is $1,000.”
Whenever we hear "too little money to litigate," it pricks up our ADR ears. Our solution is always a modest one. If these are franchises of the far better funded Miss America Pageant, how about requiring those franchises to maintain blocked accounts in which to hold the scholarship money to which only the National organization has access?
Alternatively, the Miss America organization could maintain its own fund -- much like the funds against which insureds can make claims when their carriers go bust -- so that contest winners are guaranteed the small scholarships that they work their hearts out for.
If disputes develop, mediation clauses followed by inexpensive arbitration procedures, could quickly and efficiently resolve these dispute and allow young women the fruits of their considerable labor.
Settlement of the Week: Legal Secretary vs. O.J. Attorney's Law Firm
Robert Shaprio, one of the members of O.J. Simpson's "Dream Team" has settled a whistle-blower wrongful termination case on his law firm's behalf with his former secretary who claimed she was fired for exposing wrongful billing practices.
[Shapiro had earlier been dismissed from the lawsuit and was not, therefore, an individual party to the resolution].
Shapiro's secretary was represented by an old colleague of ours, Patricio T.D. Barrera, now of the law firm Marcin Berrera, LLP.
The case was reported by the National Law Journal's Los Angeles Legal Pad here and by CBS News here.
As CBS News reported:
Lawyers for James and the Christensen law firm appeared before Los Angeles Superior Court Judge John Shepard Wiley Monday, saying both sides agreed to all terms and that the defense will prepare the final document for signatures.
Wiley said he was pleased to hear of the agreement in principle. "To try this case would have been nasty," Wiley said. "Neither side would have had a pleasant experience." The judge said the settlement avoids the uncertainty James and the Christensen law firm would have faced had the case gone to a jury, which was scheduled for trial Sept. 11. He urged the lawyers to put the settlement in final form soon before any last minute disagreements develop.
"Let's get this in the can," Wiley said.
Outside the courtroom, James' lawyer, Patricio T. Barrera, said the terms are confidential and therefore his client, who was present in court, cannot comment.
Extreme Sports: Family Negotiation Tactics from Mixed Emotions Blog
(left: author/illustrator Rutu Modan)
I urge you to CLICK HERE IMMEDIATELY for the most extreme and hilarious family "negotiation" (read: manipulation) tactics ever to flow from a pen (with marvelous illustrations) from a Blog you'll immediately want to add to your Blogroll: Mixed Emotions by Rutu Modan.
This is a New York Times Blog (don't worry, fellow amateurs, the BigBloggers have to appeal to a much wider audience) which describes its author as follows:
Rutu Modan, an illustrator and comic book creator, is a chosen artist of the Israel Cultural Excellence Foundation. She has done comic strips for the Israeli newpapers Yedioth Acharonot and Ma’ariv and illustrations for The New Yorker, Le Monde, The New York Times and many other publications. Her first graphic novel, Exit Wounds, will be published in June. Ms. Modan, usually based in Tel Aviv, is currently in Sheffield, England.
Mixed Emotions is translated by Jesse Mishori.
And if you want to off-set this dark whimsey with a little practical know-how from the smartest guys in the room, here's the Harvard Business School Working Knowledge article, Five Steps to Better Family Negotiations.
Blame the Lawyer or Organize a Strategic Team? Norman Pearlstine, Floyd Abrams and the Art of War
It's common to blame your lawyer when dispute management goes awry in the executive suite, even when the client is former Time, Inc. EOC, Norman Pearlstine (book here and Senate testimony here) and the attorney is "[o]ne of America's most ferocious defenders of the First Amendment, Floyd Abrams."
In today's NYTimes, Adam Liptak reviews Pearlstine's public charge that Abrams "gave [Time] less good advice than [it] deserved" in responding to subpoenas issued by the Special Prosecutor during his investigation into the disclosure of CIA operative Valerie Plame Wilson's identity. (For the full article, see Editor’s Charge: His Lawyer Fell Short).
Though not agreeing with Pearlstine's evaluation of Abrams' motives -- that he was "more focused on overturning Branzburg v. Hayes . . . reject[ing] First Amendment protection for confidential sources, 'than on pragmatic ways in which [Time] might fashion a compromise' - Liptak concurs with Pearlstine's "broader point" that
Time, like The Times, seems to have misplayed its hand. While it is impossible to know if the two news organizations and their reporters could have found a way to respond to [congressional subpoenas] short of a constitutional battle royale, it seems pretty clear that they could have tried harder to look for a compromise. . . . Time’s fundamental misstep was its astonishing failure to approach Mr. Rove for permission to cooperate in the investigation."
Zealous Advocates and Negotiation Pros
No matter how complicated a game of football subject to Monday morning quarter-backing might be, it pales in comparison to the immensely complex and sophisticated commercial and legal strategies that must be planned, launched and managed in response to a Congressional subpoena (and yes we have grappled with the monster for our pro bono clients).
But the purpose of this comment is not to call into question either Mr. Abrams' legal advice or Mr. Liptak's belief that the decision not to approach Mr. Rove for permission to cooperate in the investigation constituted an "astonishing failure."
Rather, we ask ourselves and our readers again whether there ought not be a representational "balance of powers" when the legal, professional, societal, political and commercial stakes are so high.
We lawyers do like to represent ourselves as Jacks of all trades -- negotiating a settlement here; drafting a compelling appellate brief there; cross-examining a witness within an inch of his life today and strategizing a long-term legal and commercial strategy in response to a thermo-nuclear patent infringement action the following week.
But, really. We're just not all 100% top-of-the-class, flat-out brilliant at everything.
When a client wants a zealous advocate, willing to burn the enemy's crops for a litigation advantage, he's not likely to also get Mr. International Diplomacy in the bargain. One General Counsel once told me that her (Fortune 50) Company didn't let the litigators and trial attorneys "in" on the overall plan, particularly settlement strategy, because they wanted them to be combat-ready at all times.
The Interdisciplinary Approach to Bet-the-Company Litigation
Once again we're recommending an interdisciplinary response to litigation, particularly when the enterprise's survival or the survival of its fundamental principles are at stake.
Whether or not you'll want to hire an outside settlement team, you'll definitely need a strategic planning in-house negotiation guru to do that which "one of America's most ferocious defenders of the First Amendment" shouldn't be expected to do.
We will say it again and again. Litigation is a business negotiation being conducted in the courts. The litigators need to be focused on the law; the parties' positions; legal strategy; and, most importantly, that which they do supremely well for a living -- WINNING.
Business, however, is not a legal negotiation being conducted in commerce. It is a multi-faceted enterprise with commercial (as well as societal and political) interests that can be advanced or deterred by the quality of its management.
When you need a negotiator to approach the likes of Carl Rove, you do not ask Floyd Abrams to do it. You find a lawyer or a political ally who is skilled at working Washington relationships. No matter how masterful the litigator, s/he is not in charge of the war, only one of its many battles.
CEO's who blame the lawyers on their watch for strategic missteps are missing the point. Lawyers are commercial foot soldiers -- some skilled at flying B-52's; others at triaging the wounded; and a few, very few, at planning the grand strategy to take a City or withdraw from it with honor.
The lawyer, no matter his credentials, is a member of the team and should be deployed by the CEO as best suits his or her skill, education, experience, talent and drive.
As Sun Tzu instructs in The Art of War,
A sovereign of high character and intelligence must be able to know the right man, should place the responsibility on him, and expect results.
Kodachrome: Ex A in Keeping Up with the Times & Paul Simon Redux; You Can Play These Simultaneously
Mr. Thrifty, always alert to the potential that business might arrive on our doorstep in response to my blog postings says "huh?"
It's not just that he doesn't share my quirky sense of humor, it's that he doesn't follow the blog. For others who don't, the YouTube Kodak commercial below is an example of the opportunities available to "old" industry in Web 2.0 advertising sources.
Look! I've become a shill for Kodak! So stop grumbling; have a little fun; play along & even this edged-out camera company may live to revive the "Kodak moment" as a provider of digital technology.
And, for my own weird reasons, this CRACKS ME UP!
Below, Paul Simon's Kodachrome from the YouTube Archive of YesMan46. And, if you're a boomer still nostalgic about the way Simon & Garfunkel moved you in Junior High (now "Middle") School, check out his new album here. Walking down memory lane, I provide you with Kodachrome.
Live by Suit; Die by Suit: DMCA Notices Violate the DMCA?
(left: old tech)
As if the DMCA weren't already the Full Employment for BigLaw Act of 2007, we have a new DMCA cause of action -- improper take down notices.
Read today's Wall Street Journal Law Blog report on the new suit against Viacom, the latest in the YouTube wars. This one was filed by "fair use" activist groups claiming that Viacom's demands to YouTube that it remove parodies of Viacom/Comedy Central programming themselves violate the DMCA.
I will continue to be a broken record (a broken download?) on litigation about online content.
There are an infinite number of business solutions to the business problems (opportunities) created by Web 2.0. As always, there are only a few, and frustratingly chimeral, legal solutions.
I'll urge anyone within shouting distance of BigMedia to read 3D Negotiation by Lax and Sebenius, whose "brainest guys in the universe" credentials go like this:
David Lax and James Sebenius . . . combine decades of high-level, practical experience negotiating in the corporate, financial, and diplomatic realms with academic expertise that helped develop much of the modern field of negotiation.
Professor Sebenius is the first Gordon Donaldson Professor at Harvard Business School and a member of the Executive Committee that oversees the activities of the Program on Negotiation at Harvard Law School. David Lax, described by Forbes magazine as a "new negotiation theorist" on the cutting edge of his field, served as a professor at Harvard Business School from 1981-1989.
Lax and Sebenius co-founded the Negotiation Roundtable, a working research group sponsored by Harvard Business School and the Kennedy School of Government, and Sebenius currently serves as its Director.
This isn't "win win" negotiation strategy. This is the way to outwit the entire legal system and most of your commercial competitors. Why? Because a business deal creates its own legal world -- the new one that precedent couldn't possibly have predicted.
But there's no reason to rely on me. Check out 3-D & draw your own conclusions. 
(right: new tech)
Viacom, Google/YouTube and the Law of Unintended Consequences
Looking for an exhaustive analysis of the historical and technological context in which Viacom brings its billion dollar lawsuit against Google/YouTube?
Plagarism Today, the blog of a graphic designer and amateur legal analyst, provides history, background and suggested reading along with the following conclusion.
It’s important to note that this dispute isn’t just about clips from South Park and The Daily Show, it’s an element of a much larger struggle, one to determine the future direction of our culture.
History has shown us that the entities that control what information or art is viewed, be it the church, printing guilds, the government, copyright holders or search engines, control our culture.
Since the new is always built upon the old, at least to some degree, those who control the present have a heavy hand in determining tomorrow’s direction. Though the public at large has the final say, the “invisible hand’ of our cultural capitalism is guided by a very visible and observable force.
That is why this lawsuit will likely be a turning point in many regards. Perhaps even more so than the MGM v. Grokster ruling, this lawsuit could easily shape the legal climate for the Web for many years to come and, with that, the future of art, science and technology.
This case is bigger than either side likely realizes it is and that is what worries me. Both sides are protecting their interests, but one has to wonder if they have an eye on the larger picture.
If they don’t, no matter who wins, it could be catastrophic.
We’ve already seen what happens when two sides move forward into a court of law with only their personal agenda in mind, let us hope we are not subjected to that again.
Power and the Illusion of Power: Paddy Chayefsky's Network
Network (above) skewers network televsion as it existed in 1976 and, more importantly, predicted a future media dystopia as close to hand as your remote control.
In this scene, the President of the fictional UBS Network attempts to "convert" the network's insane news anchor to the theology of the global marketplace. It's one of the most prescient and hilarious commentaries on money, power and global politics ever written.
Norman Lear has said of Network: This is not a satire; it's a documentary.
Rent it, buy it, watch it.
You will find in Network the first imaginings of reality television in a country that was then celebrating the 200th Anniversary of the American Revolution and which had, only the year before, painfully extracted the last of its troops from Viet Nam. Saturday Night Live was breaking network taboos in its first year on the air ('75-'76) and the Twin Towers had been standing sentinel over the foot of Manhattan for only three years.
The following year -- 1977 -- I'd watch in amazement from the sidewalk near the New York Supreme Court in Foley Square as a mountain-climber from Queens, George Willig, climbed the South Tower (2 WTC). But I digress.
When Network was first released, I was working in the typing pool (IBM Selectric: 5 carbon copies) of a midtown law firm, studying for the LSAT and learning what it was like to be truly poor (rats in the lobby, cockroaches in the kitchen and la Migra pounding on our apartment door at 3 a.m. as we listened to neighbors escaping through the building's otherwise unsued dumb-waiter system).
When my husband and I had arrived in New York City the year before, it had been teetering on the edge of bankruptcy and its pleas for help from the federal government had been famously rebuffed, prompting the notorious New York Daily News headline: "Ford to City: Drop Dead."
New York City thirty years ago. New Orleans today. Plus ça change, plus c'est la même chose.
Paddy Chayefsky's prophetic vision grows more eerily accurate with each passing year. In 2006, this script was voted one of the top ten movie scripts of all-time by the Writer's Guild of America.
This posting has nothing whatsoever to do with mediation, negotiation, lawsuits, business or legal practice except that it is about power, the wielding of power and the illusion of power.
It's a Sunday digression.
