Commercial and Public Interest Issues

Introduction

Intellectual property (IP), a broad category encompassing several forms of legally protected creative works, has come to occupy an increasingly pivotal role in the domestic economy and international trade over the past several decades. Although the various areas of intellectual property law—patent, copyright, trademark, and trade secret protection—are based in different doctrinal frameworks and constitutional foundations, they share important commonalities within the legal system. The dynamic growth of technology and innovation has largely outpaced the development of relevant law, and intellectual property’s global reach only exacerbates shortcomings in traditional nationally-based dispute resolution methods.

In the absence of reform from the court system or legislatures, international intellectual property interests are increasingly embracing alternative dispute resolution (ADR) methods rather than litigation for commercial disputes. Mediation and arbitration offer significant benefits in this domain; the usual advantages of ADR are amplified in the complex, fast-moving world of commercial intellectual property rights. Since the public interest is nearly always implicated in IP disputes, however, this trend must be examined critically. This paper will discuss some of the commercial benefits and public interest concerns of ADR in international intellectual property disputes, and describe some of the specific institutional resources currently available in this realm.

Commercial Advantages

ADR comprises a spectrum of dispute resolution techniques, ranging from direct negotiation between the disputing parties to a legally binding arbitration proceeding. In the former case, the parties control the process entirely and are free to negotiate any settlement they want, or can choose to not settle at all. In the latter, parties hand over decision-making power to a neutral third-party, and are often prohibited from unilaterally withdrawing from the process. In some cases, parties are barred from judicial appeal from an arbitrator’s decision except under very limited circumstances (e.g., misconduct or incompetence on the part of the arbitrator). Mediation lies somewhere in the middle: a third-party is employed to help the parties resolve their dispute and potentially make non-binding recommendations, but the parties themselves ultimately determine whether or not a settlement is reached. Frequently cited benefits of ADR techniques over litigation include savings of time and money, increased confidentiality, more flexible and effective solutions, continued positive relations between the parties when they need to work together in the future, the ability to pick a process and a decision-maker specifically suited to the parties’ needs, and conservation of judicial resources.

International intellectual property litigation is extremely expensive and time-consuming, even relative to other large-scale commercial litigation. Due to the highly technical and fact-based nature of many IP disputes, discovery costs are elevated, and the need for highly-paid expert witnesses and detailed reports exceeds many other types of disputes. Furthermore, since the judge and jury are generally lay people, parties go to significant lengths simply to educate the fact-finder as to the basic nature of the relevant technology. Studies have found that the median cost of patent litigation through discovery is nearly $500,000, and the median cost of a full trial is $750,000. Costs for patent cases routinely reach over $1,000,000 per party, and legal fees have occasionally risen into the hundreds of millions of dollars.¹ Travel costs in international disputes further increase the costs, particularly because the process can drag on for several years and proceed simultaneously in several different jurisdictions.

While mediator and arbitrator fees for intellectual property disputes are not cheap, they almost always represent a significantly more economical option. Even though the parties will still need to pay experts, they can select a mediator or arbitrator who is already knowledgeable in the field, thus obviating the need to educate a judge or jury from “square one”. They may also be able to rely on scientists and engineers from within their respective companies to explain the technical details particular to the dispute, rather than having to retain outsiders who will appear unbiased in laying out the foundational technical background for a case.

The advantages of an expedited process are particularly salient in IP disputes. Since patents constitute a time-limited entitlement (20 years from the time of filing in most cases), their value is significantly diminished when tied up in litigation. Complex IP cases routinely take years to litigate, and overworked federal courts with a statutory mandate to grant speedy trials to criminal defendants are unlikely to prioritize this sort of litigation on their dockets. Furthermore, the nature of technological innovation often renders the dispute moot with the passage of time. If the parties chose to engage in ADR, they can set their own time-table and not be at the mercy of a court system to resolve the dispute. Furthermore, potentially infringing activity becomes increasingly risky when the duration of the dispute is unknown, since damages and attorney’s fees are often awarded to victorious plaintiffs. If a defendant knows the matter will be settled one way or another within six months, she can decide whether to continue production and risk an injunction and damages for profits during that period, or to suspend production until the legality of her activity has been established. When the time line and potential costs are made more certain for all parties, they can make rational decisions that would be unavailable if they were subject to the vicissitudes of litigation. Matters are made even more certain when the parties have a pre-agreement not to appeal the resolution in court.

Another advantage of ADR that is crucial to intellectual property disputes is the confidential nature of the process. In a mediation, the parties and the mediator usually agree to strict confidentiality, with the understanding that only the settlement agreement itself will become public. Mediation confidentiality agreements are usually enforced by courts. Furthermore, in the international context, an ADR process allows the parties to avoid dealing with different rules surrounding confidentiality in multiple legal systems.

Since intellectual property and particularly trade secrets tend to lose their value when they become public information, the privileged nature of ADR proceedings often represents an invaluable benefit to the parties to the dispute. The common concern about bad publicity arising from any lawsuit is also addressed by the privacy available under ADR. In some situations, parties are prevented entirely from litigating because the business risks of exposing their trade secrets are too high. ADR provides an effective way to resolve these disputes when other options are unavailable.

Parties frequently will choose ADR when they want or need to have a continuing relationship past the dispute. Since IP disputes frequently involve joint research ventures, long-term licensing agreements, and other arrangements that may only bear fruit over extended periods of time, the ability to preserve a working relationship may be more important in these disputes. Technology can rarely be developed today without the involvement of numerous distinct entities; thus, the availability of ADR may be increasingly indispensable to scientific progress and collaboration.

The Public Interest

Alternative dispute resolution techniques for international intellectual property matters are not without shortcomings, however. In fact, many of the strengths described above raise significant public policy concerns. While one could argue that the public has some interest in every legal dispute, this interest is intensified when intellectual property matters are involved. Intellectual property protection is premised on a delicate balance between an inventor’s need to be compensated for her work and the public’s interest in accessing that work. As intellectual property rules are harmonized worldwide under organizations like the World Intellectual Property Organization (discussed below), the World Trade Organization, and the like, the framework for resolving these disputes is increasingly a global issue.

The Commerce Clause of the United States Constitution grants Congress the power to establish limited monopolies to establish incentives to promote creative work. The essence of this balance is struck in the judiciary, where a court is called upon to weigh various statutory and judicially-defined factors to determine whether or not the state will enforce this monopoly. While this legal framework underlies ADR as well as traditional litigation, the need for public access is likely to be weighed less heavily when ADR is used. In a mediation, all that is required is that the parties come to a mutually satisfactory solution within the bounds of the law. They are not required to consider the public interest in the same way a court of law would.

Patent disputes provide a salient example of the different role of the public interest in litigation and ADR. The Supreme Court has spoken about the importance of the public interest in patent cases:

A patent by its very nature is affected with a public interest …. [It] is an exception to the general rule against monopolies and to the right to access to a free and open market. The far-reaching social and economic consequences of a patent, therefore, give the public a paramount interest in seeing that patent monopolies spring from backgrounds free from fraud or other inequitable conduct and that such monopolies are kept within their legitimate scope.²

Ordinarily, the first requirement in the prima facie case for patent infringement is to establish ownership of the patent on the part of the plaintiff, and secondly to establish that the patent is valid. Patents are found invalid for a variety of reasons, including lack of novelty, an overly vague patent description, abandonment of the invention, obviousness, etc..³ When a patent is found invalid in a court of law, this finding is frequently the result of an extensive discovery process. Once the patent is found invalid, the plaintiff no longer has exclusive rights to the invention, and the public can benefit from competition amongst various producers. This benefit is particularly acute when the invention involves medical technology, where society as a whole bears a large burden in paying monopoly prices for patented medicines, and many suffer from lack of access.

If parties decide to mediate a patent dispute, however, the discovery process can be cut off and a patent’s invalidity may never be revealed. Furthermore, the parties may find a mutually beneficial arrangement that preserves the patent even if it would have been invalidated by a court. They may find that they can earn more profits by entering into a licensing agreement so that both can produce the invention, thereby preserving a duopoly, rather than losing exclusive rights altogether, which might be the result of litigation.

Congress has taken some steps to mitigate this problem, for example by requiring public disclosure of settlements involving patent disputes. Furthermore, as in most other types of litigation, the great majority of patent dispute cases never even reach a full trial. Even in the Patent and Trademark Office, 80% of interference (contested patent) proceedings settle before a final judgment is reached.⁴ These disputes most commonly result in a license agreement between the parties. Since we can’t force the parties to go through with litigation once they’ve reached a satisfactory conclusion (although usually the court will have to approve a consent decree), it may be preferable to have a mediator or an arbitrator who can at least nominally insure that the public interest be considered by the parties to the dispute, rather than leaving the issue entirely in the hands of the parties’ negotiators.

ADR proponents often identify the ability to retain an expert mediator or arbitrator as a key advantage over litigation, where the finder of fact is either a judge or a jury, neither of whom is likely to have the specialized knowledge required to comprehend the technical details of the matter in question. An expert fact-finder, however, may introduce certain biases in the process that work against the public interest. Contract law, for example, has evolved over hundreds of years, and is grounded in equitable common law principles that ostensibly serve important public policy ends. In intellectual property litigation, a non-specialized judge may reframe the dispute within these well-established principles. The parties may argue that their dispute ought to be treated differently because it involves a new technology, but a court is unlikely to create new exceptions in the law simply because a new invention is involved. An expert mediator or arbitrator, on the other hand, is more likely to see the dispute from the parties’ perspectives, possibly resulting in a process skewed away from legal principles that serve the public interest. Furthermore, while a jury may not possess expert knowledge, it does represent the conscience of the community, which is an important voice to be heard in resolving disputes.

Another public interest question is whether the shift towards ADR in intellectual property disputes actually encourages disinvestment in our legal system. For example, Canada has only recently embraced ADR, lagging behind the US and Western Europe. This is because, in the words of one commentator, “until recently, the Canadian system was sufficiently funded to ensure speedy access.”⁵ Although the federal court system backlog is frequently cited as a reason to engage in alternative dispute resolution, it is possible that the increasingly widespread availability of ADR could encourage Congress further to reduce funding for the judiciary, leaving the court system as a “worst case” option for those who do not have access to ADR for various reasons. As the backlog lengthens, parties can strategically refuse to mediate, and rely on the slowness of the courts to outlast their adversary. Perhaps the solution to an overworked judiciary isn’t necessarily to push parties towards ADR, but rather to provide sufficient resources for the courts to resolve disputes in a timely manner.

If the growing importance of ADR reflects a trend towards “privatizing” the judiciary, we should take stock of the long-term ramifications of this trend before public law loses its relevance entirely. It may be possible in institute safeguards to prevent ADR decisions from moving too far away from what a court would decide. For example, if contracts waiving the right to judicial appeal were found to be unenforceable as a matter of public policy, an arbitrated or mediated resolution would be more likely to hold closely to established law, since a significant departure would be overruled by a court.

International Intellectual Property Mediation in the Real World

An institutional basis for international intellectual property protection has been evolving since the late 19^th century. Arising out of the Paris Convention of 1883 and the Berne Convention of 1886, the United International Bureaux for the Protection of Intellectual Property (BIRPI) was established to help nationals of treaty member States obtain international protection of their right to control, and receive payment for, the use of their creative works. In 1970, BIRPI became the World Intellectual Property Organization (WIPO), which today comprises 179 member states, has a staff of over 850 and a yearly budget of nearly half a billion dollars. Among other activities, WIPO facilitates the coordination and enforcement of treaties for the protection of intellectual property amongst all its members.

WIPO provides alternative dispute resolution services specifically tailored towards international intellectual property matters. Numerous other organizations exist which can also handle these sorts of disputes, including the International Chamber of Commerce Court of Arbitration, American Arbitration Association, and the London Court of International Arbitration; however, only the WIPO Arbitration and Meditation Center specializes in international IP disputes. The WIPO Center was only established in 1994, however, so potential clients have to decide between more well established but general ADR entities like the AAA and the intellectual property-specific Center.

Since confidentiality frequently weighs heavily in the decision to use ADR for IP disputes, the WIPO Arbitration Rules contain provisions for strong confidentiality. Furthermore, parties to the dispute have the option of having a confidentiality advisor appointed to their case. This advisor is an expert to whom trade secrets can be disclosed without fear that the information will be exposed to the other party. In some cases, the confidentiality advisor will even receive information that is kept secret from the arbitrator himself.

For mediation, the WIPO Center provides the parties with an option between a “facilitative” mediator who will focus on the process of helping the parties understand each other’s interests and bringing them to consensus, and an “evaluative” mediator who will take a more active role in resolving the dispute and make specific recommendations based on an expert background. In the latter case, the mediator’s recommendations are not binding but can help frame the mediation process.

Several other factors distinguish the WIPO Center from other ADR options. The Center provides specific rules for the introduction of technical and experimental evidence to serve the needs of their clients. It is located in Geneva, which may be seen as more “neutral” territory for international disputants than other locales. The Center’s staff, arbitrators, and mediators, come from dozens of nations, and the Center actively promotes its experience in working with situations that include cultural, linguistic, and institutional diversity. Some international companies view organizations like the American Arbitration Association as being more closely linked with the American legal system and the International Chamber of Commerce in Paris as being closely linked with European law, while the WIPO Center is not necessarily perceived as favoring one legal system over another.

The WIPO program provides meeting space free of charge to parties who want to engage in ADR at the Center in Geneva; alternatively, WIPO mediators and arbitrators are available throughout the world. Parties can choose to mediate in any country, in any language, and under any law. This flexibility is a great advantage to the WIPO ADR process, where technical disputes may involve many interdependent parties located in many different countries.

Finally, the WIPO Center can be somewhat less expensive than other ADR options for large commercial clients at the low end of its fee scale. The Center charges a registration fee equal to 0.10% of the amount in dispute, up to $10,000, and either an hourly or daily fee for the mediator’s services, based on a number of factors including the complexity and economic importance of the dispute, as well as the experience of the mediator. Hourly fees range from $300 to $600, and daily fees range from $1,500 to $3,500. By default, the parties share the cost of the mediation equally, although they are free to negotiate alternative arrangements.

The Center has had a fairly slow start in gaining acceptance in the commercial world. Although it was founded in 1994, by mid-1997 it had not yet handled any disputes. The Center attributed this slow start to the fact that ADR is most commonly entered as a result of a contract clause requiring it in the event of a dispute. Since the Center was only founded in 1994, one would expect several years to pass before contracts would be formed specifying the Center as the dispute resolution forum, and for those disputes to arise.

Today, the Center has found a niche in resolving international Internet Domain Name disputes, which frequently implicate trademark law. In 2001, the Center received 1,506 domain name dispute cases involving 94 countries. The entire procedure is conducted on-line, and usually results in an enforceable decision within two months. The Center’s process is based on the Uniform Domain Name Dispute Resolution Policy promulgated by the Internet Corporation for Assigned Names and Numbers (ICANN), which handles the technical aspects of the Internet “root server” system and ultimately has the power to enforce domain name assignments.

It is clear from the Center’s promotional materials, however, that its process is intended to favor trademark holders over the general public. They claim to be “the leading dispute resolution service provider for challenges related to abusive registration and use of Internet domain names, commonly known as ‘cybersquatting’.”⁶ Trademark holders come to the WIPO Center in order to claim domain names in a cheap and expedited fashion. In many cases, it might not be worth the trouble for a trademark holder to bring an alleged infringer to court, particularly given the expense and jurisdictional issues when the parties are in disparate countries and the infringement claim itself may be dubious. Providing a quick and inexpensive alternative, while theoretically in a “neutral” forum, may constitute an inherent bias for large corporate trademark holders over lone individuals. ICANN’s Uniform Domain Name Dispute Resolution Policy has been criticized on similar grounds.⁷

Conclusion

ADR’s rapid growth in the world of dispute resolution over the past decades has paralleled that of intellectual property in the global economy. Given the increasingly complex and international nature of intellectual property creation, ADR solves a number of important problems with traditional nationally-based litigation. Some of ADR’s greatest strengths in intellectual property disputes, however, also raise serious public policy concerns. Institutions like the World Intellectual Property Organization Arbitration and Mediation Center provide valuable resources in the field of ADR, but too little attention is paid to the fundamental right of the public to access creative works in return for the benefits accrued to creators when they are granted limited monopolies. Increasing dependence on ADR in these disputes is probably inevitable, so national and international governments should take care to insure that the public interest is not foreclosed from this process.

Bibliography

Blackmand, Scott H. Alternative Dispute Resolution in Commercial Intellectual Property Disputes. 47 Am. U. L. Rev. 1709. 1998.

Elleman, Steven J. Problems in Patent Litigation: Mandatory Mediation May Provide Settlement and Solutions. 12 Ohio St. J. on Disp. Resol. 759. 1997.

Electronic Frontier Foundation website. http://www.eff.org (8/1/02).

Electronic Privacy Information Center website. http://www.epic.org (8/1/02).

Martin, Julia A. Arbitrating in the Alps Rather Than Litigating in Los Angeles: The Advantages of International Intellectual Property-Specific Alternative Dispute Resolution. 49 Stan. L. Rev. 917. 1997.

World Intellectual Property Organization Arbitration and Mediation Center Guide to Mediation. http://arbiter.wipo.int/mediation/mediation-guide/index.html. 8/1/2002. See also World Intellectual Property Organization website. http://www.wipo.org.

Zisk, Matthew B. Mediation and Settlement of Patent Disputes in the Shadow of the Public Interest. 14 Ohio St. J. on Disp. Resol. 481. 1999.

Footnotes

Taken from http://www.georgedillon.com/web/netiquette.shtml, which seems to be offline from time to time.

Netiquette No Nos

Hi! This page exists so I don’t have to keep sending the same advice to my naughty friends. If you’re reading this, either because I’ve sent you the URL or because a search engine guided you here, then you may also be interested in Basic Online Security.

1. Sending HTML formatted email

HTML e-mail is always uneconomic, sometimes unreceivable and/or unreadable and it can occasionally be unsafe. There really is no good argument for sending e-mail in HTML format. If you want your audience to see an HTML formatted page, put it on your website and send them the URL. Do you really want to know what I think? HTML email is EVIL!

ACTION:
To stop sending (evil) HTML e-mail from Outlook Express
1. Click Tools > Options > Send and under ‘Sending’ make sure that ‘Reply to messages using the format in which they were sent’ is UNchecked and under ‘Mail Sending Format’ CHECK the ‘Plain Text’ box.

2. Sending (Word) .DOC attachments

Like HTML-formatted email, Word .doc files are unecessarily large for the message they contain and they can also carry viruses. In 90% of cases the contents of a Word .doc could be put in a plain text file. In 90% of the remaining 10%, where the layout of a document is important, the file should be (more safely) formatted as a Rich Text File (.rtf) which will not only be considerably smaller, but can be read by more programs on more platforms. (Word .doc files which have embedded drawing or picture objects, however, may end up larger on conversion to .rtf).
As well as the virus risk and large file size, there are 3 other reasons for NOT sending Word documents: 1) double-clicking to open them fires up the full WORD app, which may affect performance on (or even crash) slower machines or systems used for heavy multitasking 2) some users may not have the right version of WORD to open the file anyway (esp Mac or Lotus users) 3) because of the way WORD uses templates (and also fonts) the document may not lay out properly or even open at all on someone else’s machine, even if they have got the right version of WORD.
Part of the bloat in a Word .doc is is accounted for by the header. Some of it is font information but a lot of it is created when you edit a Word file. All the edits are saved as additions to the original, so Word .doc files are always much bigger than they need to be and may even be considered a security risk (as you may not wish the recipient to be able to see your earlier versions). – A neat trick is to save Word files as .rtf then open the rtf file in Word (or Wordpad) and save it again as .doc. This will remove any unnecessary bloating such as undos or font info in Word 7 files and can drastically reduce the file size, without affecting (and sometimes even improving) its appearance.

ACTION:
If you want to send a WORD .doc, ask yourself does the layout matter? If the answer is NO, choose ‘Save as’ and select ‘Text only (.txt)’ or simply copying and pasting the text into a (plain text formatted) e-mail message. If the layout does matter, choose ‘Save as’ and select’Rich text Format (.rtf)’.

3. Sending Huge / Unsolicited attachments

It would seem like a basic courtesy not to block up someone else’s in-box with stuff they haven’t asked for and probably don’t want but have to download before they can use their email again, but some people just don’t think. In recent months I’ve been sent a 2 Mb .jpg of a theatre company’s poster for inclusion on Steven Berkoff’s website (when the only listing they were ever going to get required no more than a plain text message) and a 3 Mb .mpg after a dear friend had unwisely announced the birth of his daughter by putting several addresses including my own in the To: line (another netiquette sin – see Sending To: more than 1 person) and two months later one of the other recipients got bored on Zimbabwe’s day of bank strikes and decided to mail me a Kung Fu movie.

ACTION:
1. NEVER SEND LARGE UNSOLICITED ATTACHMENTS.
2. If you have to send large attachments, it is better to post the file to a website (http or better still ftp) and then send your friend the URL. Web pages download faster than email and ftp sites are faster still. Also with http or ftp your recipient can choose when to download your monster and they can use a download manager, so if the connection is broken during a long download they don’t have to start again from the beginning.
3. If you ARE going to send a large attachment by email, it’s courtesy to send a small (plain text) message first, saying that that’s what you’re about to do (and better still to ask if it’s OK by them), so the monster is not so unexpected. The small file will get through first and allow the recipient to take appropriate steps in anticipation of your in-box stuffer.
4. If you have been on the receiving end of unwanted, unsolicted mega attachments, and you’re not using an email client with a download-headers-only option (such as Eudora), then get the freeware Email remover which will allow you to download just the headers first and even read the first 100 lines of a message’s source, and delete any unwanted messages BEFORE you download them using your default email program.

4. “Please forward this message to everyone” – NOT!

The net is choked with traffic as it is. Much of it is unwanted spam. But there’s also the net version of the chain letter – send a copy of this to everyone you know – usually with some sob story attached and an implausible (or more likely impossible) promise that the message is somehow being tracked and that everytime it is forwarded a child will be saved of dying from cancer and the world will be made a better place.
These are all bogus. At best they are benign wastes of bandwidth. At worst they may carry a virus.

ACTION:
In short the netiquette is: Do not ever forward anything unless you know for sure who it is from, who wrote it and that the recipient is either expecting it or will be pleased to receive it.

5. “Visit this URL (and save the World!)” – NOT!

“Simply by visiting such-and-such-a-site.com you’ll save a child/animal/the-whole-World. Every time you visit – their corporate sponsors/advertisers will donate a certain amount to whatever good cause you’re a sucker for…” Yeah, right! And that ‘certain amount’ is 0.000000001¢ if it’s anything at all. And I bet a DNS look-up on that domain name will show it to be an elaborate scheme, operated entirely by and in the interests of its ‘corporate sponsors/advertisers’. The fact is, if Mammon-incorporated gave a damn about anything, they wouldn’t make their contributions to good causes dependent on your swallowing their advertising. These click-for-charity schemes are always a sick, exploitative scam. At best the site owner has been suckered by the advertisers. At worst the entire thing is a fraud.

ACTION:
Treat any message about any such charitable site as spam. Delete it, and forget it! And to save you rebuking them directly, you might want to cut and paste the following URL and advise whoever sent you the sob-story-spam to read this page:- http://www.georgedillon.com/web/netiquette.shtml#charity

6. Sending To: more than 1 person

If you send one message to a lot of people by putting all their names/addresses in the To: or Cc: line the result is that everyone in the list can see everyone else’s address. Not only might some people not want this (considering their address to be ‘ex-directory’ and not wishing to be ‘replied to’ by 50 or more strangers) but there is a much more serious security issue which you should heed, especially if you care about those to whom you’re mailing your circular. Most viruses replicate by scanning address books and messages which are stored in in-folders for addresses to which they silently forward themselves from any infected machine. In other words, by putting all those names in the To: line you are exposing everyone to a greater risk of receiving a virus from someone else on the list.

ACTION:
Use BCC! If you insist on mass emailing you should put one address – (probably your own) in the To: line and use the ‘blind copy’ or ‘Bcc:’ line for all the rest. That way no-one gets to see the list of recipients (and not only is this safer, but everyone is made to feel a bit more special, since they cannot see how many people have received the message).

Long ago, in a galaxy in New Jersey, the 2D Mens Club used to meet regularly to discuss issues of great importance. This is the only remaining record of that historic institution.

(after Rilke)

Written Spring, 1998 |

I’ve recently been on a quest to find underappreciated songs by great musicians. Of course, it’s hard to truly believe anything by Paul Simon hasn’t received fairly widespread attention, but this one at least hasn’t made it onto any “Greatest Hits” albums.

I’ve come to believe that Paul Simon may be the only truly great songwriter.

This song, written in 1969, appeared on the Simon & Garfunkel album, Bridge Over Trouble Water, which (among other things) documented the demise of the duo.

My understanding of the song (based partially on this interview from SongTalk Magazine) is that it describes Simon’s feeling when Garfunkel left for Mexico to act in Catch 22. Early in their career, Simon and Garfunkel were known as Tom and Jerry, and “Tom” in the first and last verse refer to Garfunkel. “…your part’ll go fine”—since Garfunkel was just starting out an act career (which apparently didn’t go too far), Simon is reassuring him that he’ll do fine.

This bittersweet loneliness shows up in a lot of Simon’s work. Cities hold lots of people and little company. When your old friend or lover goes away, you wander city streets on a Sunday morning feeling unbearably light [Milan Kundera]; you are so close as to be vicariously lifted by your friend’s exhilaration, but at once you know longer know them, where they are, or where they’ve left you.

It’s interesting how many superficially opaque Simon songs become lucid with just a couple of “hints”; in this case, Tom & Jerry and the filming of Catch 22 in Mexico.

 Tom, get your plane right on time I know your part'll go fine Fly down to Mexico Da-n-da-da-n-da-n-da-da and here I am, The only living boy in New York I get the news I need on the weather report I can gather all the news I need on the weather report Hey, I've got nothing to do today but smile Da-n-do-da-n-do-da-n-do here I am The only living boy in New York Half of the time we're gone but we don't know where And we don't know where Tom, get your plane right on time I know that you've been eager to fly now Hey let your honesty shine, shine, shine Da-n-da-da-n-da-n-da-da Like it shines on me The only living boy in New York The only living boy in New York 

Kar-Wai Wong (people say “Wong Kar-Wai”) made Chung King Express (Chong Qing Sen Lin) in 1994 as a break from an epic film that he was having trouble finishing (I believe Ashes of Time). The film was shot in about two months, without a script.

The film is visually astonishing; the stylized cinematography is a transformative experience regardless of whether you understand the story. I’m not sure there really is a story, actually. At first, you’re following a woman involved in a complex international crime operation; but then it’s about a love-struck police officer; and then finally, about another love-struck police officer.

Although quite different in style and substance, Chung King Express conjures a visceral experience akin to Chris Marker’s Sans Soleil. If the imaginary and the visionary provide you with spiritual sustenance, this film will satisfy.

John Gorka is a master of the songwriting craft, perhaps enough to make me reconsider my statement that Paul Simon may be the only truly great songwriter.

Travel becomes meaningful when we move on to the next place. We live to create memories, both for ourselves and for others. So long as we are in a place, the possibilities of who we are are limited to the perceptible. We are gone, and those we leave behind can imagine us however they like; as we them.

My favorite line is “People love you when they know you’re leaving soon.”

 There is nothing in my head today Nothing awful there to ponder or confuse me Go ahead in what you have to say And I will listen as I listen to the news I know the whole truth there is horrible It's better if you take a little at a time Too much and you are not portable Not enough and you'll be making happy rhymes You might like the gypsy life You judge your progress by the phases of the moon Get your compass and your sharpest knife People love you when they know you're leaving soon If you choose to settle in one place You may be harder over on the ones you love Like a tree without the growing space You will be taking from below and from above There is nothing in my head today I'll cross the river people as I cross my heart The pigeon bridges are a place to stay I will go under as I try to do my part 

This song is really an original psalm, from Bob Dylan’s 1970 album New Morning (a gift from my Uncle Glenn many years ago). I just recently “rediscovered it”, perhaps because I’ve conquered my prejudice against Dylan’s Christian inclinations. [His so-called “Christian phase” was actually not until ten years later.]

The descending female backup vocals haunt me (presumably Hilda Harris, Albertine Robinsin, and Maeretha Stewart); Dylan’s strikingly clean piano playing sustains his gravel voice. The song is over in less than a couple of minutes, but it leaves you silent, maybe fearful.

 Father of night, Father of day, Father, who taketh the darkness away, Father, who teacheth the bird to fly, Builder of rainbows up in the sky, Father of loneliness and pain, Father of love and Father of rain. Father of day, Father of night, Father of black, Father of white, Father, who build the mountain so high, Who shapeth the cloud up in the sky, Father of time, Father of dreams, Father, who turneth the rivers and streams. Father of grain, Father of wheat, Father of cold and Father of heat, Father of air and Father of trees, Who dwells in our hearts and our memories, Father of minutes, Father of days, Father of whom we most solemnly praise. 

I frequently email website owners when they fail to conform to w3c standards. It’s particularly a problem when the site doesn’t work at all with browsers other than Internet Explorer, since that’s not an option for me. I usually don’t expect any concrete results, but once in a while I get lucky.

Here’s a note I received from the very large online legal research company, Lexis-Nexis. Amazingly, they responded to my feedback within 24 hours:

 Dear Mr. Kessel: Thank you for sharing your input regarding lexis.com. We truly appreciate your valuable feedback. Due to notes such as yours, we have decided to comply with your request. We anticipate this change will be made within a month. Thank you again for sharing your comments and suggestions. Regards, lexis.com Product Development -----Original Message----- From: Support Mailbox [mailto:support@prod.lexis-nexis.com] Sent: Wednesday, February 19, 2003 4:34 PM To: research@lexisnexis.com Subject: Feedback for LexisNexis(TM) at lexis.com Date: 2/19/2003 4:33:44 PM From: Adam Kessel Email: kessel.a@neu.edu Company: Northeastern University Law School Phone: 617-xxx-xxxx Feedback: I am unable to click on any of the "tabs" with my web browser (Mozilla). Your HTML code violates w3c standards, and for no purpose! You have  anchor tags outside of your  columns tags, and they could just as well go *inside* the  and then (at least that small piece of code) would comply with web standards, and it would work with more web browsers. As things stand now, I've developed a filter that replaces all the tags so I can actually click on the tabs. Westlaw presents no such problems, though, so I am considering switching to their service. If I can be of any assistance in further clarifying or remedying this problem, please let me know. Mozilla has been downloaded millions of times, and there's no good reason not to support it, even if you don't do so officially. 

It’s important for websites to be accessible for people with disabilities. A lot of people just don’t “get it”, though. “Why bother making a website readable by the blind when there are so few of them, and they’re unlikely to visit my site anyway?” There are many responses to this question, but there’s one in particular that I think needs more attention.

Millions of people together build the Internet. Even an incorrigible techopessimist can’t deny that electronic networks permeate society, and that we’ve likely only seen the tip of the iceberg. We’re making a lot of important choices now, sometimes without much thought.

It’s a lot easier to get things right the first time, rather than try to retrofit a solution later after you’ve screwed up. If we make the web accessible today, as we’re building it essentially from scratch, we won’t incur prohibitive costs in the future fixing all the mistakes we made. Although the Americans with Disabilities Act doesn’t yet apply to websites, there’s a good chance that it someday will. Or at least that it ought to.

So let’s build things right from the start. The Internet was originally a text-based medium which opened up fantastic new possibilities for people with disabilities. These possibilities are being foreclosed by short-sighted “computer people” who are creating websites and services that ignore smaller audiences.

Besides, accessible websites tend to be better organized and have superior interfaces for the non-disabled as well. They tell you that the designer took care. They are also easier for search engines to index and comprehend, creating a richer informational resource for all of us.