Tom, just to clarify, Seelig isn't just a paid lobbyist for 1-800 Contacts among her many clients. Instead, she is an employee of 1-800 Contacts. As a result, I don't think this is a matter of mere disclosure. Legislators who are employees of a company should not be allowed to vote on laws advanced by their employers, PERIOD. I'm sure I could articulate a zillion rationales for this rule, but to me it's so self-evident that it shouldn't even need explication. Eric.
Figuring out when to disclose conflicts of interest can be difficult for lawyers, so I have a little sympathy for someone who doesn't make the right call. Even so, even if disclosing the conflict was not legally required, I absolutely believe that someone trying to persuade an audience of judges should disclose their interest in their position. So I do not support the generalization you imply in the last sentence. Eric.
Even if prices are not copyrightable (a generally true statement, but see Kapes v. CDN), retailers still can shut down aggregators using multiple trespass to chattels doctrines (common law trespass to chattels, the Computer Fraud & Abuse Act, state computer crime laws), contract law and technological controls. So where you write "there doesn't seem to be any legal barrier stopping such an aggregator from stepping in....Though, of course, that won't stop airlines from suing, but the legal basis for their argument seems pretty weak," you are descriptively wrong as a legal matter. Eric.
It reminds me of the contracting process I had to go through to skydive. The contract required me to sign in 17 different places, and the front clerk made sure that each and every spot was properly completed before I could proceed. I had zero ambiguity about the contract terms I had agreed to. Then again, this is a high transaction cost way of making marketplace decisions, and I doubt we want to go through such rigorous processes for every purchase we make. Eric.
I think you make a lot of good points. One more point along this line. There will always be a marketplace opportunity for vendors to provide tools that have limited functionality because some consumers don't want power and customizability; they just want the device to do a few things really well in a way they can learn and understand, and they are willing to give up the generativity capacity as a tradeoff. This isn't a failure of open systems; it's just a different market segment. Eric.
Mike, you're right (as usual) that the drumbeat on this topic is wasteful showboating. However, from my perspective, the real villains are the politicians who have legislatively mandated that websites put specific words on their home pages regarding privacy. It's never good when politicians try to control user interfaces. On the other hand, it's completely fair game for the advocacy groups to identify companies who aren't complying with the law and push for compliance. (I'm not saying Google isn't in compliance, but clearly the privacy groups think so). Eric.
From Blockbuster's perspectives, a download kiosk sounds like a way to improve the current in-store experience and offer more of the long tail. Shelves don't have what you're looking for? Download it! On that basis, the download kiosk idea isn't totally stupid.
However, it also won't fix the major problem with Blockbuster's in-store experience that no one wants to drive to get their movies at all. So while it may be a short-term service enhancement, the long term for Blockbuster's retail stores looks very grim.
In Perfect 10 v. Amazon, the court rejected linking as a public display when the displayed files were on remote servers. But there's also the earlier LiveNation cases from last Winter, where a link that caused streaming was deemed a public performance. So this may remain an open legal question. Eric.
A good lawyer wouldn't proceed without permission from the client. Now, lawyers can influence that decision and need to avoid swaying a client into a bad business decision. However, it's comparatively rare when a lawyer makes a business decision unilaterally. Indeed, not atypically, lawyers have strongly protested a bad business decision but get vetoed and told to proceed anyway. In those cases, the lawyer takes the fall for the bad result, even if the lawyer tried to steer the client towards the light. Eric.