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Tuesday, July 5, 2016

Reality Bytes - April 2016

Maryland Fiduciary Access to Digital Assets Act (“MFADAA”)

In the Notes From the Chair column in this issue of the Newsletter, Section Chair Charles Abell reports on legislation passed by the Maryland General Assembly during its session just concluded. I call your attention to MFADAA, which will finally provide clarity about control of a person’s digital assets if he or she is disabled or deceased. More detailed information on MFADAA was provided in the Fall 2015 Newsletter in an article by Anne Coventry entitled “Update on Fiduciary Access to Digital Assets.” A future issue of the Newsletter will discuss the final legislation (unless vetoed by the Governor) in greater detail. Please read the provisions of the bill (HB507/SB239) and consider how they should be incorporated in your estate planning documents.

Dance to the Music - Part II

As I explored in the Fall 2015 Newsletter, technological evolution in the way we listen to music has given us (as consumers) enormous choice and considerable flexibility in the way we listen to and enjoy a wide spectrum of music through a variety of devices. (While this discussion is focused on music, consider how technology has done the same for other forms of intellectual property --- books, newspapers, magazines, journals, photographs, encyclopedias, etc. --- work created by others that we can access much more easily than ever before.)

This article presents some thoughts about how this technological advancement for consumers has affected songwriters and musicians (the creators of the intellectual property).

When the music is free or nearly free and easy to access, it is easy to forget that those who created the music deserve to be compensated for that creativity and effort. There are still costs for the consumers – for example, paying for individual songs or albums on iTunes. As compact disc sales fall and streaming music revenues rise, however, many artists are not seeing equitable compensation. New, emerging artists and artists who are wonderfully creative, but not commercial superstars, lack strong bargaining power to demand better compensation. These artists often need the exposure that these streaming services provide, but see little return for the use of their music.

Let’s look at each end of this new paradigm. On one side, listeners (subscribers, consumers, or customers) may be paying for premium services through Spotify and Pandora. For example, I pay a monthly fee to Spotify. Pandora calls itself Internet Radio (with commercial spots). While not strictly “free”, the low monthly fee or a few commercial ads make these services very attractive for the listener, with access to large libraries of music. (Through Apple’s iTunes one can download for free and listen to a huge selection of podcasts from broadcast radio such as NPR All Songs Considered and Tiny Desk Concert, The New Yorker’s Fiction podcast, This American Life, The Writer’s Almanac, and On Being.)

On the other side of this equation, are the artists who create music getting fair compensation for their efforts when that music is now widely distributed digitally for “free” or for very low user fees? Is streaming digital music the answer to the problem discussed in Part 1 of this piece, i.e. buying your favorite music over and over again in different formats as technology changes?

Perhaps not, or not yet. For a consumer, the answer may be closer to “yes”. Digital music (or books, or movies, etc.) seems to offer great convenience, portability, and some promise of being around longer. Digital technology may change, but if digital technology changes, the consumer listening to a digital stream online may just need to update the app, not replace the device through which they listen. Streaming digital music is likely to be around for a while.

Consumers may be concerned about the sound quality of digital music. Since music was digitized on compact discs, complaints about quality persist. Some artists have gone back to pressing high quality vinyl records for fans who want better sound quality. Admittedly, sound quality of streaming music can be limited by the device that you use to play the music. The speakers on your iPhone are never going to provide sound quality equivalent to a good sound system. A good pair of headphones might be a wise investment.

Artists such as The Beatles, The Rolling Stones, Led Zeppelin, etc. may be able to strike lucrative deals for their music and control how it is presented. These artists can negotiate the deals they want because there is high demand for their music. These artists also can decide which providers will get their music.

When the artist Prince removed his music from Spotify and Rdio, but left it on other services like Google Play, Tidal and Deezer, it was noted online that:

“Besides his impressive string of hit songs, Prince has always expressed his strong advocacy for artist’s rights, whether through his music, words, or actions.”
The sad news of Prince’s death has brought attention back to this advocacy. No doubt many, many around the world will remember Prince through his music. A quick trip to Spotify, however, still finds the statement: “Prince’s publisher has asked all streaming services to remove his catalog. We have cooperated with the request, and hope to bring his music back as soon as possible.” To find Prince’s music you have to go to Tidal. Except for a 30-day free trial, Tidal is a paid subscription-only service promising high quality sound.

Another report on the difficulty that fans were having finding Prince’s music online went further to explain that Prince’s interest in protecting his rights to his music led him a few years ago to the extraordinary step of buying back the rights to his own music from his publisher Warner Brothers. After this purchase, he alone controlled its distribution. This highlights another major problem for artists, namely, that as they become successful and get recording contracts, they actually bargain away rights to their own music.

There are very, very good local artists (some of my favorites: Arty Hill and The Long Gone Daddys; Caleb Stine; Victoria Vox; Ellen Cherry; UltraFaux) who have been recognized and actually play outside the area, but have a hard time making any money through online services. Often, they only post selected material online to give newcomers a sampling of what they do. Economically, they cannot afford to put all their music out there because they make next to nothing doing so. They might not even be able to afford “pie for breakfast.”

Even established artists must go on tour to make significant money. Bob Dylan’s “never-ending tour” has had him on the road almost continuously for years. Acts like The Rolling Stones seem to return to the road every few years, as their output of new music slows and the new recordings draw less demand. Fans want to hear the hits and are willing to pay.

Established artists also are re-packaging and selling their old music. As I revised this article recently, Bruce Springsteen and the E Street Band were preparing to perform in the Baltimore Arena. The current tour commemorates the 40th anniversary of the release of The River, a double album played in its entirety at each show. One source told me of a conversation with the manager of the Arena, who said Bruce gets 95% of the gate (the list price of the tickets sold). Springsteen shows still sell out (and make money for scalpers too!).

Concurrent with the tour, Bruce released an extended edition of The River, titled “The Tie That Binds: The River Collection,” containing 52 songs and 3 hours and 17 minutes of music. (It takes Bruce and the E Street Band about two hours plus to play the original album live.) The Tie That Binds spreads out over four compact disks and contains previously released alternate singles and previously unreleased outtakes from the original recording sessions. Even though this recording is available on streaming services like Spotify, this is another way Bruce makes money --- selling fans enhanced or augmented versions of his past.

Bruce is not alone or the first to do this. You may be old enough to remember when artists had to battle with “bootleg” recordings of their work, unauthorized copies from recording sessions or concert performances. The Grateful Dead actually encourage their fans to swap recordings of live concerts and maintained a deep archive of their own that the band has released from time to time.
For years, bootlegs of unreleased recordings of Bob Dylan and The Band, known as the “Basement Tapes,” circulated among fans, to the point where they became legendary – a “holy grail” of bootlegs. Eventually, Dylan turned the concept around and has been releasing his own “Bootleg” collections of unreleased alternate versions his recorded catalog of songs as well as material never released before.
I listened recently to a compact disc of Dylan’s “The Cutting Edge 1965-1966: Bootleg Series Vol. 12” on my commute to and from work. A couple of years ago, Dylan released an elaborate box set of the entire “Basement Tapes,” complete with a thick booklet detailing the recordings. (Dylan has always maintained his own deep archive of written and recorded material. It was announced recently that he is transferring this massive archive to the George Kaiser Family Foundation and the University of Tulsa for a reported $15 to $20 million. It will reside there in the company of “a rare copy of the Declaration of Independence, a cache of Native American art and the papers of Woody Guthrie.”)

Other established artists are starting to react as Prince did. Some, like Taylor Swift, have enough popularity to follow Prince’s example and hold their music off Spotify and fight for a better deal. Some of these artists want not only a fair pay scale, but want to restore sound quality to digital music, a primary goal of Tidal, which was started by artists.

Finally, the question comes back to who owns the music? If you use Spotify, Pandora, Tidal, etc., you are renting the music.

You are subscribed to an enormous musical candy store, you can search for all kinds of goodies, but if you stop paying, the door is shut and there is no more music. Your subscription fee replaces the commercials on radio and digital streams that use them.
Steve Jobs is often mentioned as having ushered in the new era in the digital distribution via the Internet music when he launched iTunes. 1/ Amazon followed as part of an even larger new era in the distribution of music and other intellectual property. Jobs also is said to have held an “ownership” concept of the music:

Steve Jobs’ company launched iTunes as a product to be run on its computer. Later, with the launch of the iPod, more features would be added, with a bigger catalogue and more products. According to Martínez Sanmartí, “iTunes created a format that was new and old at the same time: new because it offered the possibility of buying individual songs at a dollar each and eliminated the traditional physical medium, the CD or vinyl record”. But also old because “it kept a price similar to the CDs and also perpetuated the idea of buying and owning music files, in other words, music was still something to be possessed and stored, even if it was now on the computer”.
What has happened since clearly has been an abandonment of the “ownership” model. Streaming services with monthly subscriptions are the norm. You still can buy music files, but that is not the mainstream market. Even before iTunes and Spotify and Pandora, music lovers with record and CD collections used their computers to copy the music into digital format and download it onto devices like iPods. Having purchased that music once (or borrowed it from a friendly source), we may have felt entitled to duplicate it digitally. Legally, that is not correct. Distribution of those digital “bootleg” copies is another step in the wrong direction. Until the iPod fails or is pried from a cold dead hand, however, that music will remain and will be heard again.

In Part I, there was a list of devices used to play recorded music. The physical form in which the music came dictated a corresponding need for a device to play the music. If you still have records, you still need a phonograph. If you still have cassette tapes, you still need a cassette player.
Digital music frees us from that paradigm. We can play digital music through many different devices in many different settings, but that freedom may have costs, real and hidden. We may think of it as “our” music, but it really is intellectual property created by someone else – the artist. We may think that we are paying for the music, but really we may only be paying for access to the music. Think about all this the next time “your” play music.


1 iTunes, a key player in the paradigm shift in music consumption, 14/01/2016 Germán Sierra;

Wednesday, November 18, 2015

Dance to the Music – Is Anyone Really Listening?

Realty Bytes – November 2015

How we listen to music has changed markedly since the advent of recording and broadcast technology.  Here is a quick survey. Check the source(s) of music that you have used:

Acetate cylinders  (
__ 78 RPM Records
__ 33 1/3 PRM Records
__ 45 RPM Records
__ Cabinet Radio
__ Portable (Transistor) Radio
__ Car Radio
__ Closed Circuit (Carrier Current) Radio
__ Cassettes tapes
__ Compact Discs
__ MP3 Files
__ A Walkman or other portable cassette player
__ An iPod or other portable MP3 player
__ Streaming broadcast on the Internet.
__ Sirius FM
__ Spotify or Pandora or similar music service
__ Concerts/Performances
__ Pono
__ Tidal

With the exception of the first and last two, I have lived long enough to have experienced all of these.  I personally have some recordings in at least three different formats.  I once had a standing cabinet radio with vacuum tubes that played records, including 78 rpm records with a steel needle.  It had been my grandfather's entertainment center. 

The New York Times reported that 2014 represented a sea change in the way we listen to music:

"The American market for recorded music was flat in 2014, but income from streaming services like Spotify and Pandora has quickly grown to become a major part of the business, eclipsing CD sales for the first time, according to a report released Wednesday by the Recording Industry Association of America."
Several observations can be made here.

It is self-evident that we want to listen music on the go.  Since broadcast radio went mobile with the car radio and the transistor radio, we have not stopped the progression of wanting to take music with us where we go.  On a clear night in central New York in the 1960s, I could listen to WCLF-AM (The Voice of Labor) from Chicago.  In college, the airwaves were filled the new progressive FM radio ("no static at all").  I spent time as a DJ on a carrier current station in a college dormitory, where you could ask listeners to call with requests, put on "Careful With That Axe, Eugene" and be assured that no one would call.

The trans-formative social impact of wireless communications has been noted by writers far more eloquent than this scribe:

But it was not only the earth that shook for us: the air around and above us was alive and signaling too. When a wind stirred in the beeches, it also stirred an aerial wire attached to the topmost branch of the chestnut tree. Down it swept, in through a hole bored in the corner of the kitchen window, right on into the innards of our wireless set where a little pandemonium of burbles and squeaks would suddenly give way to the voice of a BBC newsreader speaking out of the unexpected like a deus ex machina. And that voice too we could hear in our bedroom, transmitting from beyond and behind the voices of the adults in the kitchen; just as we could often hear, behind and beyond every voice, the frantic, piercing signaling of Morse code.

                    Seamus Heaney - Nobel Lecture December 7, 1995

Soon Moore's Law began to take hold.  Transistors became smaller and smaller and became computer chips.  We moved from portable cassette and CD players to iPods and Zunes. The Internet changed everything again, slowly at first, then ever faster.  Streaming radio came along.  Worldwide broadcasting became a reality over the Internet.   Bands and musicians at first found a way to reach large audiences online.

Streaming music followed, with iTunes and Amazon selling music files.  Social media sites like MySpace gave new artists exposure. YouTube brought music videos.

Now, we have streaming music services -- Spotify and Pandora -- that have changed things again.  It is fair to say that there never has been so much music available so easily to so many people from so many sources.

There have been compromises and short-comings along this pilgrimage, however. If you remember long playing phonograph records, you will recall the annoyances of scratches and analog hiss.  Compact discs seemingly offered a better solution.  They were more durable and did not have to be handled with as much care.  Streaming music seems even better.  You can take it practically everywhere and only have to keep the player dry and in one piece (and have a connection!).

Unfortunately, along the way, in the shift from analog music to digital music, the quality of the music suffered.  The dynamics of digital music are not nearly as rich as the old analog recordings.  The convenience of compact disks and digitized music online lured us away from our records by offering convenience, but quality arguably diminished. We seemed content to accept the convenience and sacrifice the quality.

When was the last time that you listened to an analog recording on a record?  How about your transistor radio?  Have you been out for a stroll with your Walkman recently?  Technological change has made earlier formats obsolete (with the exception of audiophiles who still maintain turntables and other earlier play-back devices).   This change has relegated the music that we purchased in those formats obsolete.  I have hundreds of records and two turntables and have not played any records in several years.  I also have hundreds of CDs and only play them occasionally now in my car CD player (when I do not have my iPod plugged in).

As we adopt the next wave of technology, we end up having to acquire the music in that new format.  We may be buying new music, but we also may be buying (again) old favorites that we still want to play.

One alternative might be "streaming" music services, like Pandora or Spotify.  I have both on my mobile devices (ancient iPod and iPhone 6).  I like both, but prefer Spotify.  Both provide streaming music if you are connected via Wi-Fi or the Internet.  There are "free" options, with premium upgrade for a fee.  I pay for the premium Spotify service, which makes the streaming available pretty much anywhere you can connect and allows you to download tracks so that they are available on your device when you do not have a connection.  These services allow you to create playlists and provide a degree of background information on the artists and different "channels" that simulate themed radio broadcasts.  Remember Hearts of Space? It's still around and available for different devices.  Pandora and Spotify are like big box stores for themed programming.

As we are flooded with so much digital music so "freely" available, do we care about the quality of what we are hearing?  Many do not seem to know that better quality is possible.  If you have taken the time to actually listen to digital recordings, however, you understand that such recordings vary widely in quality.  Some of this comes from the time and care taken in producing the original recording and its translation into digital format.  An artist or a producer may have insisted on better quality.  (Examples that come to me immediately -- music recordings produced by T. Bone Burnett and the Radiohead catalog.)  As consumers, we need to be wary of digital reissues that promise to be better than the original analog recordings we knew and loved (and still may own).  Often, it is just a carnival huckster's sales pitch to get you to buy the music all over again.

Through all of this, some artists have not gone quietly down the path of mediocrity.  Two examples are Neil Young and Jay-Z.  Neil Young has long spoken out about the inferior quality of digital sound.  Finally, he did more than talk about it.  He created a new digital music device with superior sound quality.  It is called Pono and you can find more information about it online.  You can buy the Ponoplayer and digital music at the Pono (or pono) store.  "Cousin" Neil starts his explanation this way:

Pono means righteous. It is a Hawaiian word, the one, the pureness. On behalf of Pono, we thank you for helping us give music a voice. You have helped to set the stage for a revolution in music listening. Finally, quality enters the listening space so that we can all hear and feel what the artists created, the way they heard and felt it.

The PonoPlayer only comes in yellow and black and costs $399 and you still have to buy the music (again).  The Best of Kiss runs $16.49.  Elvis Costello & The Attractions - This Year's Model runs $20.99 for the entire album.  R.E.M. -  Document is $14.29 for the entire album.  Individual tracks from any of these are $2.29 each.  Once again, you are buying the music in a new format.

Meanwhile, Jay-Z (the artist otherwise known as Mr. Beyonce) has launched Tidal.  It is a digital streaming service attempting to offer superior sound quality and equitable compensation of artists.  It has attracted an interesting alignment of artists.  Prince can still be found on Tidal.  So can such seemingly different artists as Lana Del Rey and David Gilmour.  Tidal appears to be targeting Spotify in the competition for world dominance.  It is a subscription service that comes with featured artists, videos, suggested playlists, and functions that allow you to create your own playlists and stable of artists and recordings.  Tidal's pricing in the US is $9.99 per month for "Hi-Fi" and $19.99 per month for "Premium".

These are steps in a direction to bring improved quality to listeners and perhaps reclaim a market lulled into acquiescence by abundant availability. 

Wednesday, April 29, 2015

Hillary Clinton and Unknowns

Donald Rumsfeld, U.S. Secretary of Defense

I always wished that I knew more about my great-grandfather.  I have an inlaid wooden table in my office that he made.  We have a nursing chair at home that he made.  These are beautiful examples of what he apparently did --- woodworking and furniture making.

I have only a little family information.  He was William Young and he was born in 1841.  His family came to America from Scotland.  I could go to websites like and look for more records, but these amount to a rough sketch of the man.  They would not give any detail of what he was really like.  Too little actual personal information has been passed down through the family.

Thus, I have a "known unknown" -  in Rumsfeld's equation "we know there are some things we do not know."  What is missing is any information that would lead to knowing more.

Keeping information, large and small, is important when we try to understand the past and apply that understanding to the future.  Information provides context.  New information may shift interpretation of prior judgments.  As lawyers, we might substitute the term "evidence" and consider the elaborate set of rules that the legal system employs to allow or disallow evidence at trial.  Without information or evidence, we are in the kind of darkness, Rumsfeld's unknown unknown.

We are said to live in the "Information Age."  Computers and the Internet have us awash in information.  We have at our finger tips access to massive amounts of information that once required extensive physical searches of libraries, museums, and public records.  That immediacy and accessibility, however, does not help us at all with the information that is missing, lost or never retained.

I have written about privacy of our information in the digital age.  I want to focus here on the need to know, to preserve information, so that history may assess it and make conclusions from a more complete record.

Let's start by looking back to 16th and 17th century England at someone that we may think that we know well.  Bill Bryson has written a slender biography of William Shakespeare.  Intentionally so, because Bryson limited himself to those elements of Shakespeare's life as to which there is some hard evidence or record.  The surprising thing is that we have relatively little documentation about a man that many consider the world's greatest playwright.  He surfaces in public records (birth, marriage,  court, death) infrequently and often at long intervals. There are only a handful of sketches that are purported to be of Shakespeare, but even these are doubtful.  Speculation abounds, over the spelling of his name (not an uncommon problem in his time), his marriage (leaving his wife his second best bed), even his authorship of the works that bear his name.

What we have is a very rough sketch and much broad speculation about who Shakespeare, speculation not supported by the historic record.  We really do not know Shakespeare that well at all.  In fact, if it were not for technology, we likely would not have much interest in Shakespeare at all.  He might have been a tiny footnote or small paragraph in the history of theater in the Elizabethan age.  The technology involved was the printing press.  Shakespeare had the good fortune to have had his plays published both during his lifetime in the folios and, more importantly, because of the additional number of plays collected, in the quartos published posthumously by his friends and theatrical colleagues John Heminge and Henry Condell.  To have been published at all was a haphazard thing in Shakespeare's time, but extremely important to our analysis now.  Because plays performed in London's robust theatrical world had to be licensed, the records of the time preserved much information as to the names of playwrights and plays, but very few texts of the plays survive.

Artists like Shakespeare and Ben Johnson are known and revered today because their poems and plays were published.  We can read and evaluate their art.  And, of course, the printed plays had to be preserved to survive, so future generations long after could appreciate and debate the merit of them.  Again, fortunately for Shakespeare, an abundance of his published work was preserved.  Without these printed examples, Shakespeare likely would be one of those "known unknowns," someone with a name and a place in history, but no context or evidence of his work, of his greatness.
What historical analysis needs is contemporaneous documentation of some kind.  Even with documentation, things can be confusing.  Hopefully, many of us might say that we know Lincoln's Gettysburg Address (, one of the most famous speeches in American history. This is so because of the historical record.  There were contemporary newspaper stories and ample written recollections.  The record is not without some ambiguities. Lincoln followed a two hour oration by Edward Everett.  His speech of just ten sentences and lasted only a few minutes, so the majority of the crowd apparently was unaware of that the President had spoken at all.  Although we think that we know the words of the Gettysburg address, perhaps by memory, there are actually five known copies, differing in some respects, as well as printed transcripts in the newspaper reports.

But we have some record of these events that has been preserved and can be analyzed.  Lincoln provides another famous example of history's dependence on preservation of a record.  In November of 1864, Lincoln wrote a short, but moving letter to Mrs. Bixby in Boston, Massachusetts to console her on the loss of her five sons who died fighting in the Civil War.  That letter survives and has made its way in to contemporary culture.

Preservation of an archive is essential to understanding the past.  That archive may not be without contradictions or omissions, but it is better than pure fabrication.  It allows historians some insight from contemporaneous evidence, which then can be weighed and from which conclusions can be drawn.  It gives us our "sense of the past." 

We now have a National Archive for the precise purpose of preserving a record of government activities, communications, and deliberations.  One of the reasons to be thankful that contemporary U.S. Presidents raise money and build presidential libraries is that they donate their personal papers to such libraries, so that we have them to assist in accessing history.

With modern technology, the preservation of a record of government deliberations has entered a new era.  Let's look at two separate examples.

If you may remember "Watergate" during Richard Nixon's presidency.  Watergate involved hired persons breaking into the office of the Democratic National Committee.  In addition to much other information gathered during his presidency, Richard Nixon had tape recording equipment installed in the White House, from which much was learned of his personal interaction and involvement in the Watergate break-in.  Much mystery arose, however, from the famous "18 minute gap" in those tapes.  The gap allegedly resulted when Nixon's secretary, Rosemary Woods, mistakenly erasing part of a tape she was transcribing.  This mysterious omission aside, the Nixon tapes proved rather revealing about the general workings of the Nixon White House.

Now we have revelations that, while serving as Secretary of State, Hillary Clinton did not use the government network servers for email communication. Instead, she used a private server installed in her home in Chappaqua, New York.  While the government security services protected this computer, the computer and its files remained with Clinton after she left office.  She did not turn over any of her emails to the State Department or the National Archives.

When the existence of the governmental email held by Clinton on her private server surfaced recently, there was immediate interest and demand in knowing what those email contained.  Not only was Clinton a high profile Secretary of State and at the center of controversy (notably over events at the U.S. Embassy in Benghazi), but politically she appears to be a leading candidate for the Democratic presidential nomination in 2016.  The Clinton email revelations also were followed by revelations that hackers gained access to President Obama's email, including his schedule.  These problems with Clinton's and Obama's email only highlight continuing concerns over security of electronic information.

Hillary Clinton and former President Bill Clinton are quite familiar with these kinds of controversies.  The Clinton ability to slide out of tight spots is well known.  The political question here is whether it will work this time.

There is, however, a more fundamental question of accountability that may not be so easily dodged.  First, let's look at the way in which Hillary Clinton has dealt with this controversy so far.  She did turn over to the government a significant number of email that she (or someone working for her) determined to be related to State Department or other governmental activities.  Clinton declared what was left on the server was private, personal communication not related to governmental activities.  How this was determined may yet be satisfactorily explained, but there does not appear to have been any independent governmental involvement in this determination.  Clinton then inched toward treating the matter finished.  Congressional critics continued to seek everything on the private server (or at least some independent verification that the server did not contain other governmental communications).  Then, Clinton seemly closed the door by announcing that the contents of the private server had been wiped clean.  Everything is gone!

With the Clintons, distinctions and finer delineations are often employed to dance away from trouble.  Let's keep in mind that, as Secretary of State, Hillary Clinton had obligations to preserve the record as the head of a cabinet agency and a key participant in our nation's foreign policy.  Whatever selection process was employed to determine which emails she turned over was entirely of her choosing.  There has to be suspicion in this approach that something could have been left out, intentionally or unintentionally.  At best, the preservation of email was handled poorly, without transparency, leaving a lingering cloud over the completeness of the record and underlying facts. 

So, the government, Congress and history are left with what Hillary Clinton determined it should have.  Concurrently, this whole situation revealed that the government generally has been doing a very poor job at turning over the records required by law to be sent to the National Archives.  As part of its coverage of Hillary Clinton's email, in March The New York Times reported:

"But the State Department disclosed on Friday that until last month it had no way of routinely preserving senior officials’ emails. Instead, the department relied on individual employees to decide if certain emails should be considered public records, and if so, to move them onto a special record-keeping server, or print them out and manually file them for preservation."

Slate has a further commentary on this more dismaying revelation in its post "The Real Scandal Behind Hillary Clinton’s Email."  Fred Kaplan's piece makes Hillary Clinton's situation truly secondary to the more pervasive loss of information:

"The Times story then returns to the saga of Clinton’s private email account, but the big, truly gasp-worthy story for the ages lies in those two sentences. The State Department is doing nothing to retain public records. Neither, others tell me, are the other federal bureaucracies. As a result, our history is vanishing into the ether. Major decisions—cataclysmic events—are happening all around us, but their causes may never be known."

Certainly email can be as deceiving or ambiguous in interpretation as any other communication --- often only a partial narrative without a fuller context.  And certainly Hillary Clinton is entitled to privacy with respect to personal email.  In choosing to use her private server for both governmental and personal communication, however, Hillary Clinton created a difficult situation with respect to knowing what was contained in her governmental communication.

The process of history, however, should not and does not operate like Fox News.  Proper historic analysis is not "spin" in a 24 to 48 hour news cycle.  It takes pieces of the puzzle and tries to put them together in a coherent, cogent analysis of what happened.  So every piece counts in that analysis.  Without them the puzzle has empty spots, like the gaps in Shakespeare's life, which if filled, would perhaps prove critical to understanding the entire picture.

At worst, what has happened is destruction of the record of history.   At best, what happened is a careless disregard for history in favor of temporary expediency, an appropriation of independent judgment about what is important and what is not.  Either way, history may have been robbed of information that might have resulted in fuller understanding of what happened during Hillary Clinton's tenure as Secretary of State.  In effect, Hillary Clinton has created at least a "known unknown," something similar to Nixon's "eighteen minute gap."   A result could be that we repeat the mistakes of the past.