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Showing posts from 2013

Raise the Small Claims Court Limit

Today the NYTimes ran an article, entitled Rule Change Could Ease ‘Justice Gap’ for the Poor,
with the lede:
Lawyers who work for big corporations in New York but are not licensed to practice law in the state will be allowed to do pro bono work under a new rule meant to ease an acute shortage of legal representation for the poor, the state’s chief judge, Jonathan Lippman, announced on Monday. It followed:
Providing help to the indigent in civil cases has become Judge Lippman’s signature issue, and will likely underpin his legacy after he retires in 2015. He set aside $55 million in the current budget for such services, and has taken steps to encourage lawyers to take on more civil pro bono cases, requiring law students to put in 50 hours of volunteer work before taking the bar exam and making law firms file biannual reports showing how much charitable work they have done. I will not in any way disagree that this is a very serious need, nor that these are not extremely laudable accomplis…

GoldieBlox Sues Beastie Boys for Declaratory Judgment of Non-Infringement

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Earlier this week, a new product out on Kickstarter called GoldieBlox - a toy aimed at engaging young girls in engineering - made a pretty brilliant music video as an advertisement. The video features a parody of the song "Girls" by the Beastie Boys:

As reported by TechDirt:
The whole point is to mock the message of the original song, with its famous refrain: "Girls - to do the dishes; Girls - to clean up my room; Girls - to do the laundry; Girls - and in the bathroom; Girls - that's all I really want is girls." The new one switches it to: Girls - to build the spaceship; Girls - to code the new app; Girls - to grow up knowing; That they can engineer that; Girls - That’s all we really need is Girls." The point is pretty clear. Parody the original song to highlight how ridiculous that stereotypical image of girls is -- and, of course, highlight how the kinds of toys that GoldieBlox makes can be useful in learning.  I'd like to reference, once again, what i…

Artist Suing Jay-z Over Sample - I Hope it Goes to Trial

The long-short of it is that some artist is suing Jay-z over a sample included in Blueprint III. The details are almost irrelevant, because I cannot fathom how this falls outside of the scope of fair use. From what I've seen, and correct me if I'm wrong, the only reason people get away with suing in nonsense cases like this is because it is easier and cheaper to settle than to actually litigate to verdict.

HOV has the resources to litigate, however, and it would be nice to see copyright sample trolling of this sort simply put to bed altogether. It's a nonsense claim and very frustrating to see it reported on as if Jay-z was somehow a bad actor. It would be great if Campbell v. Acuff-Rose was unambiguously expanded to samples of all sorts, not merely parodic samples.

3D Printing 'Encryption' to Hide Contraband Objects Seems Really Overhyped

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Tl;dr Yesterday, on Forbes.com, this article ran about using 'encryption' to hide contraband objects in 3D printer blueprints. I think this claim is designed to incite moral panic, and is also an incorrect one. Centrally, distribution channels for contraband already exist online, and this so-called 'encryption' will add no value to that ecosystem.

The central claim of the Forbes article: If 3D printing companies and government agencies hope to police the spread of dangerous or pirated digital shapes, their task is about to get much more complicated.  Late last month Matthew Plummer-Fernandez, the 31-year-old creative technologist for Goldsmith College’s Interaction Research Studio at the University of London, released what he’s calling ‘Disarming Corruptor,’ a piece of free software designed to distort 3D-printable blueprints such that only another user with the app and the knowledge of a certain key combination can reverse the distortion and print the object. That mea…

Third Party IP Infringement Liability & You: What You, as a Contract Developer, Should Know

A while back I had a post on Contract Drafting for Software Development Agreements. Today's post is a followup, specifically about the issue of Third Party IP Infringement Liability.

If you are someone who offers engineering or design services on a contractor basis, or work for a firm that does, there will almost certainly be a series of clauses in your contract regarding third party IP infringement indemnification. That's a big legalese mouthful, but it is potentially the most expensive part of your agreement, so it should be negotiated carefully.

Essentially, when a service provider indemnifies a client over third party IP infringement claims, the provider is stating that the work-product it delivers doesn't infringe anyone else's copyright, trademarks or patents. Copyright and trademark is pretty easy to cover, as long as you are not using uncredited stock photos or rival company's logos.

Patent infringement is much trickier. There are millions upon millions of …

AOL's Quarterly Earnings: Dialup and Advertising

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As covered on TechCrunch, AOL's earnings beat analyst estimates today, coming in at $.035 per share, with a total income of $28.5M on a revenue of $540M.

Before we all pop the champagne, however, let's take a look at the actual numbers:


Of the $541M in revenue, $361.2 comes from advertising, or almost precisely 2/3 of all revenue. Further, an entire $166M comes from subscriptions, which is codeword for dial up subscribers. That's right, a full 30.6% of AOL's quarterly revenue comes from people with dial up modems. So, AOL generated 97.6% of its Q2 income from advertising and dialup. That means that all of AOL's other products, besides advertising and dialup, account for less than 3% of its income. That is not a good sign.

To be fair, AOL has many services that are advertising driven, so there are many different products that generate ad revenue. However, given that the cost of online ads is declining, affecting mega-giants like Google, it may be that services drive…

Bits Blog on Amazon - Apparently, Market Based Pricing is Evil

The NYTimes Bits Blog just had a post on book pricing and Amazon, and, well, it is a bit out to sea. For instance:

One consequence of this shift is that soon no one will know what a book’s “real” price is. Price will be determined by demand and perhaps by whim. 
The first sentence is pretty philosophical - what is anything's real price? The second sentence actually gives a pretty damn good answer: whatever the market will bear.

The entire piece is bemoans the fact that book prices now actually reflect market demand - and I am just scratching my head as to what the problem is here. In fact, the whole article is basically an implicit admission that the publishing houses are really pissed off that they no longer get to charge monopoly rents on books, artificially inflate prices, and take out a huge middleman fee. It is a de facto apologia of the really, really dated and anti-consumer practices of the publishing industry as a whole, draped in the sentimentality of losing the corner boo…

Open Source is Totally Realistic: A reply to Rachelbythebay

Developer and author Rachel Kroll recently had kickstarter to fund development of a google reader replacement, which she named fred. She has just posted to her blog a response to the many comments "well why not just open source it?" She mentions a few points, and importantly reminds everyone that preparing software to be released into the wild as open source requires a whole bunch of work, which she would have to do for free.

Other than that, however, I think she misunderstands open source and how it works. She repeatedly states that she doesn't want to lose the ability to monetize her software - and that simply is irrelevant to open sourcing. If she were to release her software under a BSD or MIT license, she would still be 100% free to charge for distribution, access, support - all the normal things you charge for in software. Even if she chose to use the much more burdensome L/GPL, she would stillbe free to charge fees for licensing and distribution, she would just ha…

Permissive Licenses and Richard Stallman's Blindspot on the Rails Community

Recently, I had to go through a very, very difficult contract negotiation that hinged largely upon the inclusion of open source software in client deliverables. Suffice it to say, that at this point, I'm fairly convinced that L/GPL licensed software simply cannot be included in software deliverables if the client intends to a) distribute that software and b) include trade secrets or confidential information in that software. It may be technically possible, but it is a huge nightmare-headache. 

As a result, I took a second look at this essay, by Richard Stallman, arguing that LGPL is, in fact, too lenient in its requirements, and that people releasing open source libraries should really think about releasing them under GPL. The gravamen of his argument is this:
If we amass a collection of powerful GPL-covered libraries that have no parallel available to proprietary software, they will provide a range of useful modules to serve as building blocks in new free programs. This will be a …

Legalese or Plain English? Either Way, TechCrunch has it Wrong

There was a post today on TechCrunch about a VC that uses a plain english term sheet, as if this were some earth-shattering innovation. Well, first, it isn't, and, secondly, TechCrunch seems to really miss the larger point: This term sheet is a summary of a larger, totally standard contract. In other words, the whole goal that TechCrunch seems to be excited about - a contract that is in plain english, hooray! - is false. This is a memorandum of understanding, a letter, a summary, that precedes the formal agreement itself. So, basically, this is a non-story.

However, it does lead to the more interesting question of contract drafting in general, and whether it is a better practice to use plain english or stick to the legalese. As with all things, I argue that it depends highly on context, and the intended audience for a contract.

For instance, when drafting a Terms of Service, or End User License Agreement, it is probably the right thing to draft so that a normal human being can und…

Open Source Licenses: When to Use Permissive v. Copyleft

If you work in any industry that heavily relies on software (read: all of them) you will eventually run into open source licenses. So let's take a look at a broad and growing divide between the two main types of open source licenses - copyleft v. permissive. Spoiler: if you are going to be including open source software in client deliverables, it is far easier to stick with permissive licenses, where copyleft licenses should are best used for academic projects, for developer tools or projects that are dedicated to some non-commercial, public good.

Open source licenses were first used in the mid-1980s, under the mantra that "information wants to be free" - not necessarily free in price, but in that it should be freely adaptable to different people's desires. Unsurprisingly, some of the earliest licenses came out of Berkeley and MIT, including the GNU Project, under Richard Stallman. The whole idea was to distribute software that was the result of - and useful for - ac…

Followup on Console Gaming

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I recently posted about how a Wired opinion piece seemed to really miss the boat on console gaming. Well, apparently, Sony agrees:
Kaz Hirai says the PS4 is 'first and foremost' a game console, more features to be revealed.
"The most important thing we need to do is agree and understand that the PS4 is a great video game console that appeals to video gamers," he said. "If we miss that part, I don't think we get the initial establishment of the console. That formula has worked for us with all our consoles, including the PS3." Additionally, this just in from Reddit:


It was posted under the title "A concise list of all the problems with the PS4 (directly from the hardware architect Mark Cerny" and it's a list of features that gamers consider to be positive. In addition to this, the internet is currently exploding with reviews of The Last of Us, a PS3 exclusive, which is being haled as a "masterpiece." So we will see how that goes for …

NSA and Your Digital Life

Right now the internet is on fire with the news that the NSA, through a project called PRISM, apparently has been tapping into a whole bunch of very large internet services for the better part of a decade.

I just wanted to note that we are going to have to wait a few days to get a clear look at this, because within about 90 minutes of each other, these two posts went up on Techcrunch:

Report: NSA Collects Data Directly From Servers Of Google, Apple, Microsoft, Facebook And More
Google, Facebook, Yahoo, Microsoft And Apple Deny Participation In NSA PRISM Surveillance Program
You can read more at the NYTimes, its Editorial Board,  Guardian, Washington Post - the last two seem to have been the original source of this information.

Also, this is particularly great: NSA chief, two weeks ago: ‘We’re the only ones not spying on the American people.’

I'd encourage everyone to take the chance to read this essay, written by former Supreme Court Justices Brandeis and Warren about the Right to P…

Business Insider's Bizarre Take on Musks's "Hyperloop"

Jay Yarrow at Business Insider just penned this piece about Elon Musk's "hyperloop" concept.

While I'm sure that Mr. Must has something very interesting up his sleeve, I just wanted to point out that the idea discussed in that article, an underground vacuum maglev system detailed in a 1972 RAND paper, is utter, fantastical nonsense. Not only are tunnels fantastically expensive and time consuming to build (Second Avenue Subway? LIRR / GCT connection? Anyone?) the idea of sustaining a vacuum in anything remotely that large is pure, unabashed science fiction. It is literally impossible. No amount of money or clever engineering could make that happen. It would literally be the most expensive engineering project in history by a few orders of magnitude, and it would still fail.

My guess is that Mr. Musk - a fully qualified engineer - has nothing of the sort in mind, simply because it is a child's fantasy. However, what Mr. Musk has described, a magnetically propelled s…

Wired Misinterprets the Market Failure in Console Gaming

Wired had an article recently about the new Xbox One announcement. The Xbox One announcement has been really, really panned, and for a whole lot of good reasons. I won't get into the details of all the criticisms, such as the fact that you may have to pay a subscription service to MSFT to play your pre-existing subscription cable, or that it is an 'always-on' service, etc. etc. However, I will talk about the fact that it seems that the Xbox One it isn't really for gamers. Wired's Chris Kohler notices this, but draws the wrong conclusions, stating that:

It’s not hard to figure out what the gaming-first crowd wants: a super-powered box that connects to the TV, has a handheld controller and has a huge library of games from the biggest-budget epics to the breakout indie hits. They don’t want a PC because they don’t want to mess with settings and deal with crashes; they want a standard platform that Just Works. It can do other things, sure, but games are the meat and ev…

Contract Drafting: Software Development Agreements

Recently, I was presented with a form software development Agreement. I asked a junior associate to give it a markup for outstanding issues as a learning exercise. It reminded me that many critical areas of contract drafting are simply not taught in law school, so consider this a first in a series of tips and pointers for drafting practical agreements.

Software development contracts are a lot like other creative development agreements, in that a person or corporation is creating a new work and transferring the IP rights to its employer. As a result, here are a few things to consider in any contract that controls the transfer of IP rights:


Clearly define "Intellectual Property." Make sure that such definition includes not just copyright, but trademark, trade secret, and all patent rights. This definition covers what will, and will not, be owned by the client at the end of the engagement. Work for Hire. As a client, you will want to ensure that all materials are being made as w…

Entertaining List of Prohibited Businesses for Credit Card Processors

Examining the Stripe TOS today, I discovered that they have a very long list of businesses that they will not service, including:

(1) door-to-door sales, (2) offering substantial rebates or special incentives to the Cardholder subsequent to the original purchase, (3) negative response marketing, (4) engaging in deceptive marketing practices, (5) sharing Cardholder’s data with another merchant for payment of up-sell or cross-sell product or service, (6) evading Card Network’s chargeback monitoring programs, (7) engaging in any form of licensed or unlicensed aggregation or factoring, (8) airlines, (9) age verification, (10) age restricted products or services, (11) bail bonds, (12) bankruptcy lawyers, (13) bidding fee auctions, (14) collection agencies, (15) chain letters, (16) check cashing, wire transfers or money orders, (17) counterfeit goods, (18) currency exchanges or dealers, (19) embassies, foreign consulates or other foreign governments, (20) firms selling business opportunities…

The Copyrightability of Databases

Recently, a colleague asked me about the copyrightability of information in a database, specifically, in this instance, a phonebook. My colleague wanted to know if you could claim copyright over a database: this is a really important question, as the internet is, by and large, a gigantic database. This is actually two separate questions: 1. Are the contents of databases copyrightable? 2. Are there copyrightable elements of databases in and of themselves? So let's break it down and treat each separate.

Contents of Databases
We do know copyright does not apply to facts, and it would be an unfortunate circumstance if simply putting a fact in a database gave you copyright over that fact. The case that everyone learns in law school that expresses the copyrightable elements of compilations is Feist V. Rural Telephone Co. According to Wikipedia:
Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991),[1] commonly called Feist v. Rural, is an important United States Sup…

YCombinator and Rigged Roulette

YCombinator has been making a lot of headlines recently. I am a huge fan of their work, PG is the man,  and I think that they have a well earned reputation for being one of the most productive and successful incu-VC's out there. However, I have to play the bear a bit here, and point out that I think that YC is being overly mythologized. So, in no particular order, let's take a look at some interesting YC factoids.

A few weeks ago, a piece ran in the NYTimes magazine by Nat Rich, which was very interesting, but I feel highlighted some inherent problems with YC, exemplified perfectly by this quote:
“There are two things that people grumble about Y Combinator that are actually compliments,” [PG] told me. “One is that Y.C. start-ups are overvalued. The only way for a company to be overvalued is if there’s someone willing to pay that price. So what they’re saying is: Going through Y.C. causes companies to raise money on better terms than they would have otherwise. We wouldn’t have th…

Some Interesting Patent Statistics from 2012 via StrutPatent

StrutPatent has some really great patent statistics. Let's take a look at some of the more interesting numbers from 2012:
The top 10 companies receiving patents were all tech companies, and they received a total of 27,930 patents, or almost exactly 10% of all patents granted. The individual with most patents granted in 2012 is Kia Silverbrook. He received 220 patents. Thinking this through, assuming he takes no vacations, that is about 4.25 patents per week. Forgive me for saying so, but the idea that any one human could be that productive is truly an absurdity. It is just poppycock. The top 10 inventors of 2012 received a total of 1481 patents, an average of 2.85 patents per inventor per week. Which, again, is total insanity. Total patents granted in 1990 numbered 99,275, up to 244,513 in 2010, for a CAGR of 4.61%. There were 542,815 patent applications in 2012. Given that patent applications take several years, it is not easy to calculate what percentage of patents are granted, b…

For Some Reason, In the Last Week My Blog Got More Viewers From China Than Anywhere Else

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My traffic is pretty low, but, every once in a while, I check it, just to see what's what.



To be fair, we are not talking about tremendous volumes of traffic - but about 50% of those appear to be from China. I cannot imagine that this is anything but automated skimming from China - but that is pretty disconcerting.