Saturday, April 29, 2006

I fought the law and...

As my partner Jeff is fond of saying, the court system works in mysterious ways.

In November 2002, Jeff and I got arrested with our good friend Joe Redner protesting against protest zones at a George W. Bush rally for FL Gov. Jeb Bush.

Here's an account of the incident by brilliant syndicated columnist Robyn Blumner. Blumner is one of the sharpest legal minds out there, and we were all honored to have her write about us:

Elend and Marks were arrested in 2002 outside a "Jeb Bush for Governor" rally in the University of South Florida Sun Dome at which President Bush was also in attendance. They had come to protest the distant cages - known euphemistically as "First Amendment zones" - into which dissenters are corraled at every presidential visit.

The video they made of the arrest is pure political theater. Here is the awesome power of the state amassed to rid the USF campus of a dire threat: messages critical of the president. If you didn't know better, you'd think the scene was something out of Castro's Cuba.

As Elend taped, Marks, along with fellow protester Joe Redner, held signs reading "War is good for business . . . invest your sons!!!" and "Why do you let these crooks fool you?" They were holding the signs - sans poles - across a frontage road from the arena entrance where a long line of people had a clear view. (The men are seen rather stoically absorbing insults lobbed from the crowd.)

That's when police approached. (To the cheers of the waiting Bush supporters, who obviously relished the idea of someone getting arrested for disagreeing with them.)

Knowing this confrontation was inevitable, the men had brought copies of relevant U.S. Supreme Court decisions to prove they had a right to dissent against the government in close proximity to their targeted audience. But no one in uniform was interested. Instead, the men were directed to the First Amendment zone hundreds of yards away - so far that it wasn't visible. They were arrested after they refused to comply.

As the scene unfolds, the video captures Bush supporters streaming into the arena, some carrying signs reading "Jeb!". No one in authority has any problem with those.

The charges of trespassing against Elend and Marks were eventually dismissed by a judge. The point, after all, wasn't to put them in jail; it was to shut them up while the president was around. Mission accomplished.

The rest of the story is that we sued the secret service and the USF police in federal court for violating our first amendment rights. The whole point of our protest exercise was, of course, to challenge the notion of protest zones because they are by any rational account a fundamental constitutional violation. You can tell me where I can't protest for security reasons, but you can't create a cage for me to protest in and let the rest of the world (or the campus, in this case) become a no free speech zone.

Just like a similar case brought by the ACLU in Pennsylvania, our case was dismissed. In 2003 the ACLU was trumpeting their case as one of the centerpieces of their counter attack against the assault on free speech. To look at their website now, after the dismissal, you'd think they never brought it.

In a particularly infuriating hearing before he dismissed our case, the Federal Magistrate lectured us about how things had changed since 9-11 (he really said that in open court!). Now I'm no policy expert, but I understood that the first amendment was one of those things we do right that the terrorists "hate" us for. As an example of how things had changed, he told us that he had sat for a case earlier that week where a man actually wanted to kill the president! I'm no history expert either, but I think that John Wilkes Booth and John Hinkley might dispute the assertion that killing the president is a post-9-11 mentality.

But alas, our case was left to languish on appeal like day old fois-gras in the 11th Circuit (you know, the court that recently ruled that Florida's gay adoption ban was constitutional because there's not yet enough evidence out there to say that gay parents don't harm children.)

Until this week... out of the blue, Joe called us up on Monday and told us that the 11th Circuit had ordered mediation in our case. In a mediation assesment phone call, the mediator told the secret service that from the looks of the case, they'd better write a policy banning the use of protest zones! The lawyer for the secret service told her that he didn't have the authority to agree to that, and the mediator told him to get people on the phone who did.

Then the mediator told us that our case against USF was flawed (there's this thingy called the 11th amendment that stops you from suing state agencies in federal court. In some parts of the country, the state's 11th amendment right is less important than a citizen's first amendment right, but in the South, the 11th amendment is king.) USF said, "yeah, and anyway - the secret service forced us to create the protest zone and put it a half a mile from the protest."

So the mediator said, "sounds like you need to join the other side," and USF said, "yeah, sounds like it."

So now our lawyer is going to drop the suit against USF and they're going to testify for us... and, without even getting back to court there's a good chance that we can get the secret service to END the policy of creating protest zones. UNBELIEVABLE.

The whole point of our law suit was not to get damages or anything like that, it was to beat back the most important way that the government attacks first amendment rights - by making you afraid to express yourself.

If you fear that you're going to be arrested for exercising your rights, you don't exercise them. When you think you might be silenced, or shoved around by the cops, or even injured, you just don't go. It's not worth it

That's why tanks rolling through the streets of Miami during the FTAA protest, or hundreds of NYPD cops with M-16s and riot gear lining the halls of Penn Station during the RNC are so incredibly damaging to the first amendment rights of not only the people they arrest, but of all people who want to express themselves.

In the 1930s, the Supreme Court ruled that requiring pamphleteers to give their names before receiving permission to pass out their pamphlets was an undue burden on their first amendment rights (308 US 147). The court recognized that governments that want to end free speech don't have to put everyone who speaks in jail. They just have to set an example and make the populace fear being arrested as a consequence of speaking. That is, historically the most effective way to silence us.

In our lawsuit, we assert that protest zones are fundamentally unconstitutional, and that the secret service has an ongoing policy of allowing and even ordering protest zones at presidential appearances- events for which they have the legal obligation to make sure that the security plans don't violate the constitution. We assert that this policy was the reason that our first amendment rights were violated at the USF Sundome, and that this ongoing policy puts an undue burden on our first amendment rights. We ask for the court to order the secret service to put in place measures to prevent protest zones.

When we protested that day, we had printed on our signs a quote from the Supreme Court case Tinker v. DesMoines (393 US 503). I think this says all that needs to be said about protest zones:

Freedom of expression would not truly exist if the right could be exercised only in an area that a benevolent government has provided as a safe haven for crackpots.

I hope we win. We need a win in this fight. The whole country has pretty much accepted free speech zones. Jeff and I passed by a group of protesters in NY stuck inside a cage a few months ago, and asked them why they stayed inside. They got ANGRY with us, and acted like we were counter protesters.

I like a quote I heard somewhere - I think it speaks to what we're trying to do... "freedom is something you have, then you wait for someone to take it away from you. The extent to which you resist is the extent to which you are free."

Thursday, April 27, 2006


I'll just say it: I LOVE WIKIPEDIA. I love it.

I love that it's about as accurate as Encyclopedia Britannica

I love that it's based around questioning authority.

I love that Jimmy Whales is so damned into questioning authority that he drove away his co-creator, Larry Sanger.

I love what it says about the power collective knowledge, and that it was saying it before web 2.0 was in alpha (that's taking a lame versioning analogy too far, but screw it).

I love that Whales got his start on the internet by combining sex and search (brilliant!) and I love that he's embarrased about it.

I love that people attack it all the time.

Most importantly, however, I love that it can show us how to make the world a better place - if we just apply the lessons of this organic technology to the problems we face.

Take this cnn article, for example:

A Georgia gubernatorial candidate accepted the resignation of her campaign manager Wednesday after he was accused of changing the online Wikipedia biography of an opponent in the upcoming Democratic primary.

This article implies that the dangerous wiki allowed this overanxious campaign manager to underimine the democratic process.

This is not the first time a Wikipedia entry has caused a flap. Because anyone may edit an entry, the site has become a popular tool among politicians wishing to slam a rival or laud themselves.

According to The Associated Press, the problem is so widespread that Wikipedia has tightened its submission guidelines and set up alerts so that its operators know when Capitol Hill staffers edit online profiles.

But that is complete monkey crap. Wiki IS the democratic process.

Let's start with the most important point... the information on wikipedia was accurate. This politician's son was involved in an alcohol related accident and the passenger was killed.

Now I've been involved in local political races in the past, and what usually happens here is that the campaign staffer will leak the information to a reporter, who will print it anonymously. And when the opponent's campaign accuses the campaign of dirty politics, they'll just deny they had anything to do with it.

Or the staffer will collude illegally with an indendent group set up to spend money that the campaign is barred by law from raising. The group will send out a mailer with a picture of the opponent's son in handcuffs to every voter in the state and, again, the campaign will deny any involvement.

In both of these scenarios, the staffer keeps working. Here, because of the transparency of wikipedia, the dirty politics resulted in the candidate taking responsibility for the dirty deed and firing the staffer.

Bottomline, the wikipedia entry was accurate. It was transparent. It was effective in making a very flawed political process a little bit better.

Time and again wikipedia has shown me that we don't get better as a society by keeping our mouths shut and letting the "experts" weigh in. We get better by putting our ideas out there and letting them get shot down by people who know better. Does that process need to be moderated? Yes, somewhat - in order for the tool to work.

But does the process need to be conducted in a star chamber, so we're prevented from seeing all the bad ideas that are shot down as the good ideas rise to the surface? I don't know about you, but I resent being underestimated like that.

Wednesday, April 26, 2006

The RSS of War

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Bestow rewards without regard to rule, issue orders without regard to previous arrangements; and you will be able to handle a whole army as though you had to
do with but a single man. -Sun Tzu, The Art of War

Sun Tzu embraced the concept of intermittent reinforcement. It's a theory that has a lot of relevance in the broadband media world.

For an explanation of the concept, we go from the guru of war to the zen master of luv. Here's Dave of, who I'm guessing is single, and probably will be for a long time.

My secret is to give women "intermittent reinforcement." This actually is a psychological phenomenon commonly documented in experiments involving rats.

The goal of the experiment is to have the rat press a lever as many times as possible. The rat is given a pellet of food after it presses a lever. If the rat gets a pellet every time, it soon gets satiated and stops pressing the lever.

If, on the other hand, the rat does not receive a pellet every time the lever is pressed, but receives a pellet intermittently, the rat will increase the frequency with which it presses the lever.

The analogy is fairly obvious: how do we get women to "press our lever" as many times as possible?

For the sake of "the ladies" lets hope that Dave never wraps his head around relativity.

But our zen master Dave buys into intermittent reinforcement, and I do too. When I'm at my desk, I constantly check my email. I push that "Get Mail" button over and over, because I never know when that action will deliver the reward of a good email. The same can be said for those addicted to their Crackberries, im abusers, etc.

My point is (yes, I really have one) that the potential of rss syndication isn't only in it's on-demand qualities, but also it's intermittent reinforcement.

Imagine the first really high end broadband show, lots of star power -exclusively online, "Lost" like buzz and fan loyalty. It's hard to imagine right now, right? Even ad supported, it's just too expensive.

Now imagine if it was distributed intermittently, so fans never knew when to expect another episode, another piece to the puzzle if it's a mystery like Lost. Fans would be scouring the website every day, soaking up advertising. RSS subscribers would read everything you sent down the pipeline in hopes that they'd be rewarded with more show content.

The concept is scalable to small niche audiences too. What's required, though, is a show that fans really want. This is not so much a strategy for creating a successful show as it is a way to sustain popularity in the broadband market and broaden the potential for ad revenue.

Those rats really wanted those pellets, or else they wouldn't have bothered to pull Dave's lever.

PHOTO: Sitting on 47th Ave. 3/26/06

Monday, April 24, 2006

iTunes Ads: The Really Important Question

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Word on the street is that Apple's going to start running billboard style ads in the "now playing" window of the iTunes interface.

Coming soon to iTunes: ads. Apple -- a brand that prides itself on the purity of the user experience -- will soon put up billboards on its popular iTunes service, according to content partners who have been briefed on the plan. The introduction of visual ads could be the first step to allowing ads in other content areas or on iPods.

At first blush this doesn't seem too new or exciting.

It's interesting to note that they're going to start this with ESPN's ad supported podcasts. Are they planning to make a revenue sharing deal with all popular podcasts that they decide to put ads next to? This would follow a model similar to that of Brightcove's syndication platform. If this is where they're going, this is great news for podcast content owners. This would be a reasonable way to apply a adsense-esque model to podcast advertising.

We shall see...

PHOTO: Before the Leaves, 3/23/06

Sunday, April 23, 2006

The Red Menace

Did you hear about that brave protester who shouted down China's President Hu on the Whitehouse lawn the other day?

Did you hear that live coverage of the event in China didn't show the protester, switching seamlessly to in-studio commentators?

I'm thankful to live in a country where that kind of censorship doesn't occur. Here the disruption was broadcast all over the media.

I heard that Hu wasn't really bothered by it, but Bush was really pissed that the Secret Service didn't get to her quicker. By get to her, I mean arrest her. That's right, she was arrested for "disrupting a foreign offical" and dragged away. That's one of those charges that our police keep handy for speech crimes - along with "disturbing the peace" "tresspass after warning" "parading without a permit"... they almost never stick, but they're handy to get the speech criminal away from the scene and in a jail cell for a few hours. She's been formally charged with a federal crime.

We don't censor our protesters in America, we just arrest them. Regularly. The fact that the Falun Gong protester was arrested was barely mentioned in the press. I guess we just expect that people who speak loudly and with an opinion on public property are probably going to get arrested.

That's just the price of freedom.

Saturday, April 22, 2006

What the hell happened to Yahoo! Podcasts?

Yahoo! Podcasts. Just a few months ago, Yahoo! announced this service -

I liked the ajaxy interface and the emphasis towards the new podcaster. When the CES conference was podcast exclusively on Yahoo!, I thought those guys were in business.

So what happened to them? I don't know anyone who uses Yahoo! for their podcasts. The few who don't use iTunes use either Juice or FireAnt. Yahoo! has a huge captive audience - myYahoo has done more, imo, to make rss mainstream than any other service, so why is this service not catching on?


A few weeks ago, I read somewhere on the blogosphere about Peerflix, a new online busines that facilitates DVD trading for $0.99 per dvd.

I thought it was a good idea, but possibly too much trouble, and didn't think much more about it.

In the past couple of days, however, my sister has found it, and promptly started marketing it to all of her friends and family. She signed up, sent us an email about it, and now I just got another email from Peerflix, saying that she had joined and inviting me to join.

Two things -

1) my sister is of that mid-internet generation. She grew up researching online, but does not have a blog, came late to podcasts, etc. So if she digs this an is excited about it, that says to me that it could be a good crossover business, like netflix.

2) speaking of netflix, if I had heard about that business in it's infancy, I probably would have said that it's too much trouble too. Now I use it, and it has changed the way I watch movies...

Monday, April 17, 2006

The Tax Man Goeth

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I agree with the consensus view that the common factor among Web 2.0 technologies is the empowerment of users and communities of users to replace traditional taxonomies (methods of organizing stuff) into more organic "folkonomies" (what a crappy term).

Although there is a lot of debate over exactly how much potential these technologies have to be monetized, I believe that they have the potential to change how money is made on the web in as fundamental a way as the hyperlink did in facilitating the clickable ad.

I realize that there would not be a web without hyperlinking, but there also would not be Web 2.0 without tagging, sharing, and syndication. The applications or series of applications that will be the vehicle for this new monetization have not emerged from the crowd yet, but they will.

Given that, it is illogical for those of us in the content production and distribution business to go on creating these "broadband channels" and confining our media to one or even a few spaces on the web. These distribution methods are moving in the opposite direction from the general trend on the web - creating new taxonomies while everyone else is busy finding ways around the old ones. Even books, the most taxonomized (sorry, Merriam Webster) form of content there is (dewey decimal, anyone?), are now yielding to book search solutions being developed by Google, Microsoft and others.

Just another beat on the same drum that I've been banging since I started this blog: distributing content accross the web through strategic use of 2.0 technologies. I'd love to come up with a fancy name for this - something catchier than "folksonomies".

Any suggestions?

PHOTO: Payphone on Skillman, 2/27/06

Sunday, April 16, 2006

One for the Road

I heard today that advertisers are frustrated because reach and frequency aren't very good indicators of online customer behavior as they are for tv and real world ads.

Online advertisement is more about the extent to which your ad is integrated into the behavior or context of what the user is doing online (which is why search advertising is so effective). The logical extension of this is that providing valuable content is the absolute best way to integrate your ad into the behavior or context of your user.

If you are the context, then trying to match what the user is looking for becomes irrelevant - they're looking for you! Similarly, if you're providing the tool that the customer is using, you are facilitating their behavior.

Brand integration is a good trend in television - a good way to combat general fatigue over the 30 sec. ad. But online, it's more than a good trend. It's absolutely essential.

The Millenium Generation

I was listening to a discussion about MySpace on To The Point, which is my favorite radio news magazine - no one can match Warren Olney's fast paced interview style. It's aptly named.

Anyway, the discussion turned to the Millenium Generation - apparently people born from the mid-eighties to now. This group was contrasted with Gen X, which accounted for the rest of the post-babyboomers among us (including me I guess).

Now I distinctly remember reading a Time article when I was 16 that told me that the X Generation was over, and I'd missed it. I also remember a Gen Y- people born later than I was. I think my little sister was part of that (b. 1982). Now I find out that both of us are Gen X'ers, there is no Gen Y, and people born in 1985, who didn't experience widespread adoption of the internet until they were 10-12 years old, shoudl be grouped with the kiddies that have spend their whole lives online?

All this illustrates to me that trying to quantify and characterize people by the era in which they were born is very Sociology 1.0. We love to organize data like that, and there's certainly some merit to it, but we put WAY to much stock in it.

As for all this terror about MySpace - a few generations ago it was the telephone that was going to stop us from seeing each other face to face and let dangerous predators into our home...

And there's a lot of talk about how people can create an identity on MySpace that's different from their own... but isn't that what all of us do everyday in the "real world"? Are you nice to people that annoy you? Do you try to appear casual when you're nervous? Like you're having fun when you're bored? MySpace just gives you more control over your false identity - you've been creating it since the first time your mother told you to use your inside voice.

Wednesday, April 12, 2006

Just Like the Movies

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Mark Cuban has a good post comparing on-demand video distribution with movie distribution.

If creating a hit TV show can be so uncertain that it’s success or failure can vary by timeslot and/or network, how difficult will it be to create a hit in a purely video on demand world ?

Cut to the movie industry.

The movie industry is non linear. Movies come out and essentially are available as PPV with the delivery mechanism being the theater or on DVD. But as with any non linear network, the user has to proactively choose the content rather than just turning to a channel and have it available to them."

His conclusion is that an on demand model doesn't work because it's too expensive to promote. He asserts that tv is a "lean back" medium, while the internet is where you can "lean forward" and occasionally discover something that's unique.

I agree with the first part, but not the last. You go through the internet looking for something, or somethings. The place for entertainment in this environment is along the way. You're not going to go to the internet for entertainment, but you're going to enjoy it while you're browsing, and might discover something you want to investigate.

PHOTO: Chainlink on 48th St 2/24/06

Tuesday, April 11, 2006

It's Your Birthday

Today is my birthday. I'm 29 and I'm celebrating by writing a one-sheet to try and convince a company to sponsor a video podcast series, editing an episode of the podcast series we're working on for the PBS Series Design:E2 and trying to figure out a web presence strategy for a film that's premiering at Tribeca at the end of the month. Party time...

Seriously though, the past year has been an incredible learning process for me. Until the evolution of the recent Web 2.0 technology, I never had a grasp on the internet as a living technology. I understood the power of the tools in front of me, but I never felt like I could see for myself the potential for the evolution of those technologies without someone spelling it out for me.

I have spent the past year really experimenting with the medium and trying to make it my own. That, and the fact that broadband adoption that has facilitated the blending of my own traditional medium (film and video) with web tools, has allowed me to add my voice to the evolving internet society in a meaningful way.

I have never kept a journal or diary... I'm good at keeping notes and bad at organizing them, so this blog has enabled me to do something I never have been able to do before: record the evolution of my thought process overtime. That's just one example of how embracing this technology has made my life better.

PHOTO: Price Check on Skillman 2/24/06

Monday, April 10, 2006

Presence of Mind

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Here's an excerpt from a podcast proposal I wrote over the weekend - kind of a summary of some of my observations on how video can foster a web presence. The company I was writing for is Autodesk, a software company. So it's rather brand-centric:

Answering the question “How do I create a web presence?” requires you to develop a reciprocal relationship with your customers on the web. Recent eye movement research has shown that as certain methods of web advertising become more common (banner ads, google ad bars on the right of the page, etc.), regular users develop “inattentional blindness “, seeing through the branding and focusing on the information, entertainment or tool they seek. This phenomenon becomes increasingly problematic as more and more advertising dollars are directed to the web.

The only sustainable solution is to offer a better deal for your customer than traditional advertising - integrating your brand into content that has value for your customer or his/her online community. In the television market, entertainment companies produce content and brand owners advertise. The web offers an incredible opportunity to turn that model on its head – leveraging your brand to create valuable content for your customer. The forward-thinking strategic entertainment strategy you employed on television with the Design:e2 Series can give you a critical edge online, and at a lower price-point. And once you have established that relationship with your consumer base, the web provides incredible tools to grow that relationship over time.

But success in the evolving web society depends not only on the content you offer, but also where you put it. Unless you are in the business of creating web traffic, relying on your website to reach your customers is like building a store on a dirt road and asking them to find it. A more effective strategy is to use new syndication technology to spread your content across the web in places where traffic already exists and deliver it directly to your customers. It is critical to expand your definition of “web presence” to emphasize content that lives throughout the web and interacts with your users.

In the brick and mortar world, your reach is limited by geography, in traditional media, it’s limited by access to channels. On the web, the limitation is the overwhelming number of choices your customer has. The real revolution in our web experience has been the evolution of tools that allow users to organize themselves and the content they consume into natural niches. Building a web presence requires you to offer content that appeals to the niches you want to target, and to place that content where the members of your niche community can find it.

PHOTO: Passing Lane, 3/11/06

Monday, April 03, 2006

What iTunes Did for Podcasts

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Podcasts are a product of iTunes. iTunes made them.

Sure, podcasts were around before iTunes, but they weren't a "thing." You couldn't get your head around them. They were, what, a blog with an audio file? Internet radio? Huh? Don't get it, I'll just read the blog.

iTunes provided a high traffic aggregator for podcasts, but that didn't make them. There are lots of other agreggators, better and more flexible aggregators.

What iTunes did to make podcasts is simple:

They put them where users could find them "along the way". They integrated them into their music store, where huge numbers of users who like listening to music on their computers and portable devices were already flocking. Then they made podcasts look like music downloads that you don't have to buy, instead of like blogs you have to listen to.

They did the same thing with TV shows, and that's why iTunes is the only place that traffics in a significant number of TV downloads.

But the best example of Apple's use of the "Along the Way" distribution strategy (which I pimp all the time on this blog) is the Video iPod. Rather than introducing this new value added product at a higher price point and letting their customer choose to opt in to the technology, they simply kept the price points the same and added this device changing technology free of charge (and they threw in more drive space to boot.) So now everyone who wants to buy an iPod to listen to music gets video functionality "along the way."

We can argue all day long about the best way to distribute video content on the way, but success is success

PHOTO: The pit on Queens Blvd., though a hole in the wall. 2/27/06

Saturday, April 01, 2006

David Sedaris

Ciara and I had the pleasure of attending a
David Sedaris reading yesterday. He read all new material, and it was great.

But what I was most impressed with was his ability to be funny off the cuff. I think of comedy writing as a totally different skill than comedy performance. Sedaris's q&a session was as funny as his readings.

Just a taste: in answer to a question about how his movie was progressing, he answered (not verbatim):

Oh, I got out of that whole thing. Yeah, I thought about it and realized there wasn't one thing that I wanted out of the experience. You know, I didn't want to spend time in a trailer, I didn't want to eat from a buffet, I didn't want to see things taped down...

Very funny.

Flickr OUT

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My experiment in photoblogging is coming along nicely. I really think it adds some value to my posts to include an interesting photo, and it gives me the impetus I need to keep snapping.

But I've decided to forego flickr for this month. While it's very easy to upload photos, I found that the blogging tools did not blend seamlessly into my posting behaviors, and the free membership did not give me enough space to make it worth my while.

As a blogger blogger, I make use of the handy Firefox "Blog This" tool, which allows me to highlight text on any page I view, hit one button, and pop up a posting tool, with the highlighted text in quotes and the hyperlink already set to reference the page. Alternatively, I have bookmarked a page that, with one click, will bring up my main posting page, with all the photo upload, bolding, and hyperlinking tools ready to go.

If I integrate flickr embedded photos, all those tools basically become useless. If I post using my main posting tool. I have to write the post, copy the text onto the clipboard, delete the posting, log into flickr, click "your photos", select a photo, click "blog this", select my blog, paste the text from the clipboard, rewrite the title, and click "submit". And for every other posting, I have to then edit the published post, to change the alignment from left to right, or visa versa.

Wayyyy too much work. Instead, I'm going to try posting my photos through blogger. I anticipate a much more seamless blogging workflow (although I'll still have to save "blog this" postings as drafts - the photo tool is not included on the"blog this" tool bar), but I also anticipate that my uploading process will be substantially more time consuming and infuriating.

We shall see.

PHOTO: First Bloom on 47th Ave. 2/31/06