If you're interested in some terrific audio examinations of several of the topics (ir)regularly covered here, be sure to check out these current offerings:

• on attention, the "Who Owns 'You'" panel from Supernova 2006, at IT Conversations
• on digital identity, the PodLeaders interview with Kim Cameron (if digital identity is your thing, you probably already listen to The Story of Digital Identity too, I hope)
• on the future of DRM, TalkCrunch talks with Yahoo! music executives

Also, we did a this WEEK in LAW with Jason Calacanis and spent a good deal of time on RSS and implied licenses (or lack thereof).  I relistened to the show yesterday (we recorded back in November), and have to say that even where our approaches and philosophies may differ, I thoroughly enjoy and respect the hell out of Jason.

Larry Dignan recently had an excellent overview of the antitrust tying case currently pending against Apple.  The case is pled as a class action, and the determination of whether class treatment is appropriate can often determine whether or not such a case will proceed.  The stakes are much higher for all concerned if the case is permitted to go forward as a class action.  If not, the chances of the case being dropped or quietly settled go considerably up.  So, while the antitrust claims may be the more intriguing/sexy part of the case, the procedural issue of class certification may prove to be more important.

In addition to alleging improper tying, the complaint (PDF) takes issue with the nature of Apple's disclosures about iTunes and the iPod.  This is potentially fatal to the plaintiff's class certification opportunity.  In a class action, common issues of fact and law must predominate over issues that may be unique to would-be class members.  Once you make the particular perceptions of individual plaintiffs a primary focus (as it seems to me this claim must), it's more difficult and less appropriate to certify a class.  (See generally Wikipedia's discussion.)

On the tying issue, should the parties get there, overall I like Apple's chances despite its market power in this arena.  Apple will be able to credibly argue that the tying is merely incidental to its success with iTunes and the iPod, which have won hearts and pocketbooks not because they are "tied" to one another or Apple's other offerings, but because, independently, they work well.  Additionally, Apple can argue these products aren't actually "tied" because one doesn't need an iPod or other Apple device to enjoy iTunes.  (This argument becomes tougher though when you reverse it; iPod owners basically need iTunes to make their devices function.)

Antitrust cases are notoriously complex (as are class certification issues), and this one should be no exception.  On the surface Apple makes a good target due to the undeniable links between its products, its share of the music download market, and the failure of iTunes and the iPod to interoperate with other devices and services.  But Apple has excellent counsel (Jones Day), and they'll have lots to work with in combating these claims.

(BTW, I'm a Mac user, own a little Apple stock, want an iPhone.  Etc.)

Don't get me wrong:  I want an iPhone, and will own one just as soon as is humanly possible.  But the thing that most surprises me about the device as I've followed along with the coverage is the extent to which Apple appears to be leaving Live Web opportunities on the table with its "breakthrough Internet communications device."  Where was the Live Web in yesterday's product introduction?  Largely absent, except for the fact the device can sync other people's podcasts and videocasts.  I kept wanting to see:

• A video camera to accompany the still camera, and
• Integration with .Mac, iWeb, GarageBand and potentially other companies' Web services — e.g., integrated tools for text blogging, photo blogging and/or sharing, video blogging and/or sharing, and podcasting.

Hopefully you can at least call up the iPhone's keypad for text entry while using Safari?  Unlike say Helio, Apple seems to see the iPhone as a device primarily of consumption, not production.  Which is a bit off, if this Internet communications device is to be truly "breakthrough."  It's further inconsistent with Apple's iLife approach, which is all about easy alternatives for publishing one's words, photos, audio, and video. 

It's interesting that while the iPhone will affirmatively incorporate Google Maps, it apparently will treat Gmail as just another POP3 service, and relegate Blogger and Google Docs and Spreadsheets to the status of just other Web pages (though depending on the Safari functionality, that may work just fine).

For more iPhone critiques, see Dan Warne, Top 10 things to hate about the iPhone, and DKS Weblog's Jared, Oh Magnificent iPhone.

Updated, 1/10/07 6:20 p.m.:  Wow, so it seems those negotiations about Cisco's iPhone trademark have broken down.  In the most litigatory possible manner.  (Thanks, WGC.)

Updated, 1/12/07, 9:01 p.m.:  More from Marty Schwimmer (My Annotation of 'How Apple could Fight Cisco') and the Wired GC (iTalk, iPhone, iSue) on the trademark issue. 

Also, if the iPhone isn't for the hard core webophile, and if it isn't for the hard core company (wo)man, then who is it for?  "Everyone else" is a fully sufficient answer, and it'll probably lure plenty of the others to boot.  I like this line from David Pogue:  

Predictably, the torrent — and I do mean torrent — of iPhone commentary from the citizens of the Web is practically outflooding spam this week. Most of it comes from people whose shirt fronts are practically drenched in drool. …

As law professor, blogger, and sentencing law expert Douglas A. Berman writes, "[a]ll over the blogosphere, one can now access an uncut video of Saddam Hussein's hanging."  Good discussion in the comments there.  It's not what I usually have in mind when I talk about participatory law, but related.

Niall Kennedy has this lengthy account of his successful efforts to have one of his Creative Commons licensed Flickr photos (licensed for noncommercial use) removed from Microsoft's Team RSS Blog.  Rather than send a cease and desist, Niall decided to make his point with a bit of a flourish.  The response he received emphasizes one of the most rapidly emerging and problematic gray areas of the Live Web:  when is a commercial site engaged in noncommercial activity, and vice versa?

I decided to educate Microsoft about the use of images licensed under Creative Commons and hosted by third-party sites by using the same tactics employed in its own fight against piracy, but with a little twist. I edited the Goatse image to remove depictions of anything that might be considered offensive, and placed the Creative Commons circle logo covering up the focus of the image. The modified image was meant to send a message to readers of the Internet Explorer team's blog that the new picture was out of place, and ensure quick corrective action from Microsoft. I was unsure how many employees in the software division would get the subtle reference to Microsoft's own anti-piracy efforts.

I sent an e-mail to Sean Lyndersay, author of the Microsoft blog post, shortly after the image swap stating I was the copyright holder and detailing the violation of Creative Commons license and Flickr terms of use. I provided a link to his blog post and advised him to choose a different image. Sean responded with his own interpretation of commercial use, claiming the inclusion of my picture in the post was an appropriate non-commercial use.  […]

(Emphasis added.)  Sean ultimately removed the photo citing his failure to give Niall attribution, which doesn't quite jibe with Niall's account.  In any event, the story struck me as interesting and representative of an area where disputes are bound to increase:  namely, the difficulty of winnowing the commercial from the noncommercial in the various contexts of the Live Web.

Per Google's 2006 Zeitgeist:

• "podcasting" was the 4th most popular Google News search of the year;
• "Bebo" and "MySpace" were the #1 and #2 most popular Web searches;
• "Metacafe" and "video" were the #4 and #7 most popular Web searches;
• "Wikipedia" and "wiki" were the #6 and #10 most popular Web searches; and
• "Radioblog" was the #5 most popular Web search.

To me these stats tell the tale of a watershed year for creating, listening to, viewing, and otherwise relying on independent and user generated media, further end-to-end participation through blogs and wikis, and enhancing social interactions online. 

Peer-to-peer, neither gone nor forgotten, has merely shifted to the torrenting arena with Mininova #9 in Web searches.  (Contrast '01, when Napster and Gnutella were on the wane and Kazaa on the rise).

When I read The Support Economy a few years ago, it resonated in a Cluetrain-esque sort of way.  If I recall correctly, one of its main premises is that due to the considerable pain presently involved in managing one's relationships with vendors, an economic shift would take place around alleviating (and hopefully eliminating) this pain.  One of my new year's resolutions is to re-read that book through the lens of both attention and Doc Searls' recent musings.

From a legal standpoint, one's data is likely to be considered one's property, or one's personal, identity-centric information, or both.  Along these lines, fellow ZDNet blogger Steve O'Hear had a great post this week:   Do ordinary users care about data portability? And if not, should they? Four social networks respond.  Note that both the ownership rights and identity themes crop up in the interviewees' responses concerning user data.  To what extent it's sound public policy to permit one's rights in such data be licensed or assigned via boilerplate terms of service is one of the coming key issues of the Live Web, in my estimation. 

James Au blogs The Second Life of Judge Richard A. Posner, a transcript of last week's Creative Commons event, complete with lawyers-cum-furries.  Surreal.

The conversation ranged back and forth between topics as abstract as law in online worlds and mortally serious as law in the shadow of Al Qaeda– along with infrequent interruptions involving aforementioned raccoon and simulated terror attacks. . . .

So, who will be the first to figure out the user credit model for things like StyleFeeder and ChickAdvisor (disclosure:  I'm on the advisory boards of Top Ten Media and ChickAdvisor).  During the holidays, the impulse to share the fruits of one's labor to locate the perfect gift, gear, or chatchke is especially apparent, particularly on the Live Web.  Amazon recognized and built on this compulsion long ago.  But the purely magnanimous aspect of the urge to share has its limits.  How will socially networked shopping and recommendation sites broker relationships between users and vendors, while still preserving the trustworthiness of the assertions?  My guess (and hope) is through the auspices of AttentionTrust (disclosure:  I'm on the board) and its incorporated GestureBank.

Bonus links:  Project VRM;  Doc Searls on same.

Watch this space (a Technorati search for "Posner Second Life," which at the moment unfortunately is devoid of coverage of the actual event):  Judge Richard Posner of the Seventh Circuit Court of Appeals, held forth last night in Second Life, courtesy of Creative Commons.  If that doesn't turn your brain inside out, I'm not sure what will.  For more about the good Judge's work, Project Posner is a great starting point; it yields 60 results for copyright, for example.

Though my first life thus far has put Second Life right up there with India, Japan, South Korea, Nepal, and Thailand as far-off places I merely long to someday visit, I suspect I'm in the minority of legally minded online denizens.  Demand for event access was understandably "fervent," and a positively giddy Colette Vogele emailed as she was giving her new avatar a spin in order to participate.  (Hey, CIS has a whole new look; so does ZDNet, for that matter!)  Professor Patry has been gearing up for the proceedings as well, and I trust James Au (who conducted the interview in-world) will check in soon.  

Hurray to Creative Commons for continuing to exploit Second Life's mind-expanding potential.

Updated, December 9, 12:40 a.m.:  Amber has comments, pics and a transcript; and from James Au:

The conversation ranged from coercive interrogation of terror suspects to intellectual property in online worlds; the audience included several aliens, mutants, babes in 6 inch stilleto heels, and Judge Richard Posner's favorite audience member of all, a human-sized raccoon.  And despite a couple griefer attacks with fireballs and a giant flying block of wood, the Judge pressed on unfazed with agile wit, as if he always gave lectures in the metaverse.

Next Monday, I'll post the transcript of what must be Judge Posner's strangest public conversation on law in the 21st century. . . .