Read (heard) this in Fast Company yesterday ("Is Your Company up to Speed?," June 2003):

Most companies have lost their zeal for tech-driven transformation. But fast companies keep the faith. They believe that the Internet remains the most powerful laboratory for business experimentation ever. It transforms how people work together, how companies interact with customers, and the economics of entire industries. There is nothing more disruptive today than an original strategic insight fueled by a savvy application of computers and communication.

Seemed an appropriate backdrop against which again to mention that the ClickZ Weblog Business Strategies Conference & Expo will take place next Monday and Tuesday in Boston. If you're in the neighborhood, please join us for dinner Tuesday night, 7:00 p.m., The Bombay Club, Cambridge. Attire? It's tough to go wrong with a classic t-shirt and red boots.

Oh, this is good. [via Donna] And although you probably don't need me to tell you that this also is good, in a much less dripping with irony sort of way, I'm telling you anyway.

Wired News is covering David Hornik's and my coverage of D: All Things Digital. ("Gag Rules? Bloggers Report Anyway," via Dave.) And now I'm covering Wired News. I fear we're going to need some astrophysical intervention here sometime soon...

Some thoughts and observations. To begin with, I appreciate Walt Mossberg's comments. Richard Saul Wurman also said something I've been thinking about all of the interviews I heard: speakers of this order are too intelligent, sophisticated and cognizant of their corporate responsibilities (where applicable) to disclose confidential information to an assembled conference crowd. As Wurman put it, "These aren't the kind of people who spill the beans. It's an artificial restriction." There's something else I haven't seen mentioned yet: non-journalists were charged (a bunch) to attend. Now, I have no idea what the conference's press pass policy was, but I'm assuming those who attended on one—and agreed to the associated terms—were exempted from registration fees. In other words, as we lawyers might say, there was consideration given for the reporting ground rules imposed on the professional journalists attending as such. And perhaps not just financial consideration. As Wurman also pointed out, some conferences are off limits to the press altogether. As a final note, it pains me to have been one of those seemingly testy people who couldn't be reached by a reporter for comment. Turns out this is the price one can pay for an agressively-set spam filter.

I have been pretty busy this week (and the baby seems to want me to sleep a lot), but my next installment of notes from the conference is forthcoming and will cover the interviews with Terry Semel, Sergey Brin and Larry Page.

Michael Gartenberg, in the new Microsoft Monitor Weblog: "As part of the launch of our Microsoft research service, we have also created this companion weblog to focus on Microsoft news, insight and analysis on a daily basis." Here's the related press release. Note too that all the Jupiter Research weblogs now have easy to find permalinks. (Not true yet of the new Microsoft Monitor blog, where it looks like you still need to access the archives to get a post's permanent URI. Update: no longer an issue, thanks Michael!)

Harvey Kirkpatrick presents itopik.com: "a blog/rss feed directory organized by topic that is a companion to itown.com..."

John Healey with the Los Angeles Times has a definite way with words ("Record Labels Again Sue Creators of Morpheus Service"):

Like frustrated prosecutors charging an acquitted crime boss with tax evasion, the major record labels are suing the creators of the Morpheus file-sharing network again—not over the software that millions of people use to copy billions of songs for free but over a service that never launched.

I also love this bit from Mark Radcliffe: "The legal term for this is 'forum shopping...'" (you must imagine air quotes for the proper effect).

Boalt Hall's online slideshow from commencement features one of my favorite professors (now Interim Dean) and one of our incoming Los Angeles office associates.

Taken May 30: 12 weeks, 6 days

Rick Klau, you rock, for (among other things) linking to Virginia Heffernan and her Slate review of the BBC's "What Not To Wear:"

Emphasize your waist. Reveal your décolletage. Dress in burgundy. Wear heels. For women, these four imperatives appear to have near universal application, and week after week Trinny and Susannah hand them down with such brio that I'm always happy to hear them again.

Like Heffernan, I don't quite get why I'm so enamored of these two but there's no denying it. Finding a new episode on the TiVo is like debarking from a rough channel crossing (even though it would take technology on the order of Landsat to locate my décolletage).

So, I've been noticing a little chatter about this press/blogger distinction as I continue to post my notes from D. No one has asked me not to do this (a fact that is utterly unsurprising to me given the overall insignificance of this weblog and its authoress). Moreover, nothing on the conference Web site, in the related materials I received or in the comments from the stage led me to believe the remarks of the speakers were not an appropriate subject for public discussion. If someone nonetheless thinks I am undermining the fabric of an ordered society and should cut it out post haste, I'd like to hear about it, and why. I'd also like to give a tip o' the bowler to Ben Hammersley, who points out the enduring importance of trust, confidence, good manners and circumspection, even (or perhaps especially) in the world, as he puts it, of webloggery.

I will note I can think of two times in the past when in good conscience I did not feel I could blog a speaker's remarks without his or her express consent. Once was when Glenn Otis Brown of Creative Commons spoke at my law firm, and the other was when Chief Judge Schroeder of the Ninth Circuit spoke at a local bar function. In both cases, I felt given the circumstances of the talks the speakers would have been caught off guard later to discover that an attendee had publicized their remarks on a Web site. However, in considering the expectations of the very public, and presumably quite Web savvy, figures speaking at a conference called D: All Things Digital, I must say I reached some different conclusions—especially in the absence of confidentiality requests to the audience.*

If you have something you think I need to hear along these lines, I'd like to hear it soon; my notes of the copyright panel in particular are fairly burning a hole on my desktop...

*And then of course there are events like Digital ID World, where the very stability of the space-time continuum can be threatened by the on- and off-site blogging.

Lots of news today about Altnet, the Kazaa partner that seeks to reduce P2P sharing of unauthorized copyrighted material by paying users to share authorized files. From the Los Angeles Times ("Offering Prizes for Legal File Sharing"): "Analyst P.J. McNealy of GartnerG2, a technology research and consulting firm, said the points program may be based on a flawed assumption: that the files Altnet wants to provide are compelling." See also [via ILN] c | net News.com ("Altnet to pay Kazaa users for swapping") and SiliconValley.com/AP ("'Rewards' to encourage legal file sharing").

While it's a laudable concept, without the backing of the major labels I don't think this has a prayer. (But then, I could never figure out why people thought iWon search was a good idea either.)

Howard's interview with 9th Circuit Judge Michael Daly Hawkins is up. (Unsurprisingly, His Honor is curious as to when Howard sleeps.)

C-SPAN is currently broadcasting today's FCC proceedings on media ownership regulations. [via How Appealing] The Los Angeles Times has this interview with four of the five FCC commissioners ("Reflecting on Media Ownership Debate").

Howard Bashman has a penetrating essay in today's Los Angeles Times ("'Conscience' Is No Cause For Judges To Flout Laws"): "[I]f one judge can elevate his conscience above the law, so can others, and soon we will have a system where judges at every level are free to decide cases based on personal predilection rather than binding judicial precedent and the texts of constitutions and statutes." While I wholeheartedly agree, I also have trouble imagining a world where law and circumstance don't sometimes inexorably conspire to wad up the proverbial Blindfold of Justice and send it skittering across the floor. (This observation probably has nothing to do with the fact I must negotiate the Judge Harry Pregerson Interchange 8-10 times a week...) I agree too with Howard when he says the thing to do if you're a judge in such a pickle is to "at a minimum, refuse to participate in deciding those cases in which the impediment arises," but I also can envision a different kind of conundrum that then becomes possible: a situation so anathema that no lower court judge can, in good conscience, apply the law as written. If judges at any level of the process have well-reasoned grounds for believing precedent to be unconscionable or unconstitutional (or both), then perhaps their duty to apply it becomes coextensive with their duty to express their displeasure about it (as Judge Reinhardt did). This information thus becomes available to the higher court, and may factor into its decision whether to reexamine the law by granting review or certiorari. (See also New York University School of Law professor Stephen Gillers, in a related Recorder article: "[Pregerson] should recuse himself and write his angry dissent in the recusal so he gets his voice heard. And it's an important voice.") I've said it before, I'll say it again: we need our very best people on the bench; they have one of the toughest jobs around.

In a May 23 post that broke this story, Howard also reproduced the pertinent text of the orders that gave rise to his incisive piece today in the Times. His next installment of 20 Questions for the Appellate Judge (with an undisclosed 9th Circuit Clinton appointee) is due for posting shortly after midnight, EDT, tonight.

Bradley Fikes of the North County Times has this report ("Nation's tech moguls conferred in Carlsbad"). Fikes mentions that the venue was popular with attendees, and why not? It's a beautiful place, and just minutes from the Palomar Airport (i.e., super-convenient private jet access). But should the organizers find themselves casting about for alternate locations next year, the new Montage Resort and Spa in Laguna Beach is one of the most spectacular hotels I've ever seen (more from the L.A. Times, "New wave of chic"), and is thought to have an eBay connection...

The following are my notes from the May, 28, 2003 interview with Meg Whitman and Barry Diller, conducted by Kara Swisher at D: All Things Digital. (Again, please don't mistake these jottings for a verbatim transcript or a complete portrayal. I'm a highly selective listener and a most imperfect note-taker.)

Interview

Swisher: Why have your companies been successful?
Whitman: eBay was just a brilliant idea, a marketplace that couldn't exist without the Internet.
Swisher: (Asks about "USA Interactive.")
Diller: I was intrigued by interactivity really early. A mixture of serendipity and curiosity.
Swisher: (Asks about what's to come.)
Whitman: The next five years will see as much change as the last five. UI changes. "I assure you my mother calls me [for help as she gets lost on the site] all the time." eBay is user generated content, and will always reflect the dynamic community of users. Changes will involve improvements to navigation, etc.
Diller: Regarding Match.com, initially it provided a serious service for people to meet each other with the goal of being together, not flirting. We broadened it to make it more about "flirt." Added voice and video features. (Brief discussion of what's in the voice and video.) "We don't want anything to do with it, it's pure point to point. And I guess you can toss out 'pure.'" We think it's about every kind of match you can imagine. We match people. (Hmm, dating services as social software?) There's a personality test that's very interesting. "I think this word content is a stupid word. It's the product. The product gets richer as you learn things and find out things and do what you do."
Swisher: Asks about feedback, what do your consumers want?
Whitman: Ours break down into two categories. Sellers want a platform that helps them build their business, merchandise their own brand. They were screaming for PayPal. That was a catalyst of PayPal and eBay to do the deal. PayPal was the de facto payment standard on eBay, and we kept hearing, it would just be better if you integrated. Sellers want more help with overseas transactions. On the buyer side, two of our growth areas are home and business and industrial.
Swisher: (Asks about importance of the Buy It Now/fixed purchase price option.)
Whitman: It accounts for about 26% of our sales. Some buyers like it.
Swisher, to Diller: You have a lot of businesses that lend themselves to broadband.
Diller: Any time you need pictures and data and a pipe going two ways broadband is important, but there's no point yet in spending a lot of money getting products ready just yet. Everything we do is digitalized. HSN is complete video, 24/7, all through a digital process. Pretty soon when the pipe is big enough the video and online sides will come together.
Whitman: Broadband is great for eBay, but we have not yet invested very much in developing products that take advantage of it. 80% of our users are still on dial-up. We'll take advantage of broadband as it becomes more prevalent. Korea is the most wired country in the world. In Korea, we do have some unique programs that take advantage of some of this.
Swisher: Will the shopping experience become more immersive, or just a souped up version of what you're doing now?
Diller: It will, of course. All the things you can do will be fluid. There's an hour drama in Korea with 1.7 million subscribers, each paying a dollar an episode to watch. Editorship will shift from the old system, of having people do it for you, to your doing it yourself. We're at the first leg of all this. In Hollywood, this has people quite scared but this is good, hopefully it will lead to better programming. Whenever you can get a small number of people to more than pay for the production, this is better than straight broadcast. (To Whitman, referring to an earlier mention of eBay television show efforts.) If you went to your users, you could get enough subscribers to support an eBay show.
Swisher: (Asks about importance of WiFi to their businesses.)
Diller: Citysearch is perfectly suited to seamless WiFi.
Whitman: WiFi access is good for us, although the initial uptake on the eBay cell phone/PDA software far underdelivered on our expectations. Again (echoing Jobs), eBay's not perfect for a small screen. We'll keep offering services as WiFi becomes more pervasive.
(There's a funny moment when Barry Diller notices Kara Swisher has notes written on her hand—per Diller, "in complete, declarative sentences.")
Swisher: What is eBay doing now?
Whitman: It's a worldwide marketplace. In 27 countries today, can be in many more. Strategic decision is to stay focused on this very large opportunity. What we're good at is running a marketplace.
Diller: Our strategy is the be the largest and most profitable ecommerce company in the world using multiple brands.
Swisher: So, we've been asking folks what would interest them if they were seventeen and starting over again today...
Whitman: Probably biotech or stem cell research.
Diller: It's most important to follow your curiosity. I don't think you go into stuff because there's an opportunity there, but because it arouses your curiosity.

Audience Questions

Audience member, to Diller: You've been outspoken about media concentration. [More.] What's the impact going to be if control gets tighter?
Diller: You're referring to the FCC's June 2 rulemaking, and loosening restrictions on cross-ownership. The issue is not about consolidation, it's this: there are 5 entities that control 90% of what you see and here. What we need is sensible, wise regulation that will make it so you can still hear independent voices. It's not about size, but when you have size you have to have careful oversight and regulation or you get in trouble. If these entities control the broadband types as well, they'll sit on the tollbridge. The size issue can't be met by just tossing everything out.
Audience member: (Interjects the conference's first blog reference.) Along these lines, Larry Lessig has written recently on his blog that the Internet is dying. What do you think?
Diller: Not enough people are saying enough about this. We need to get it out there.
Audience member: regarding eBay, what about letting people sell themselves, their loyalty. "I'll be your customer, for X months." Whitman: We've experimented with a broader range of saleable items, but what eBay reacts to is the demands of its users. The "services" category has only been moderately successful.
Esther Dyson, from audience, to Whitman: Are you experiencing tension between serving the small guys and the more wholesale side of market?
Whitman: Wholesale is a new category, and we think they coexist quite nicely, the pricing is consistent no matter how large or small the seller is. Sellers can get nervous when changes occur. For example, Disney selling on the site caused concern among collectors, but it wound up helping them and being embraced. The site is an economy, it's a marketplace that is self-regulating.
Audience member: (Asks about sniping.)
Whitman: It's an economy, and that was an innovation that occurred. Fixed price is an alternative.
Audience member, to Diller: (Asks about shopping models.)
Diller: The thing you've got to get to is it's on all the time, will become a shopping medium for daily needs, commodities of life. (It was either here or earlier that Swisher mentioned a well-known Barry Diller quote about the convenience of buying underwear in your underwear.)
Audience member: (Asks about marketplaces v. portals: Yahoo, Google.)
Whitman: Google does an awesome job for us, we buy words on behalf of our users. We in turn help the richness of their services. We have to be nimble as well, think about what the right thing to do is over the long haul. We're not the only place to buy goods on the 'Net, never thought we were. Will continue to navigate through the changes that take place.

(Unfortunately, I missed most of Dr. Richard Klausner's remarks, but I understand he was excellent. Next up in my notes: Yahoo's Terry Semel.)