Doublethink
Soulless bloodsucking lawyer/leech.
I exist to write needlessly long blog posts to fight the tide of Tumblr's obsession with pictures and macro-Tweets.
E-mails: remarkablybrilliant at gmail.
The first and last time I 100% agree with Justice Scalia
“I mean there’d be a, you know, a defense or public defender from Podunk, you know, and this woman is really brilliant, you know. Why isn’t she out inventing the automobile or, you know, doing something productive for this society?
I mean lawyers, after all, don’t produce anything. They enable other people to produce and to go on with their lives efficiently and in an atmosphere of freedom. That’s important, but it doesn’t put food on the table and there have to be other people who are doing that. And I worry that we are devoting too many of our very best minds to this enterprise.”
Via.
Patents are an innovation tax (at least in software)
When I was a wee engineer in college, I was told, repeatedly, how important patents were, what an honor it was to receive one, and how they help drive innovation. More than once, scientists I respected pointed to their patents as landmarks of their success in innovation.
On a gut feel level, maybe this is true. To a layman, a patent says that the government thought this “invention” was novel and important enough to grant the assignee a monopoly. But if you scratch the surface at all, the sheen rubs off, and you begin to realize that in many industries, particularly software, patents add nothing, disincentivize progress, and act as a tax on innovation, transferring wealth from those I call “value creators” (developers and the companies that support them) to “value leeches” (lawyers and patent speculators).
Lots of writing has been done to argue why software patents are bad, see, e.g., here, here, here, here, and here (much of this by Jim Bessen and Mike Meurer, two very cogent academics writing about this dry material). My executive summary of the research is the following:
- Software patents, by nature and by function of patent law, are packed with legalize and barely disclose anything of value by themselves. This means that the disclosure rationale for patenting in this space is farcical.
- Software startups rarely need patents in order to secure seed funding. The ability of a company to get off the ground depends much more on creating products and first-mover’s advantage than on securing patent protection, which may take years from the time of the initial idea.
- Software is highly incremental. In other words, new software innovations depend heavily on predecessor innovations that are often solutions to problems highlighted by previous innovations. An upstream patent on a software invention thus potentially cuts off dozens, if not hundreds or thousands, of follow-on innovations.
- Software has very short development cycles. Sort of related to its incrementality, innovation in software happens very quickly; by allowing patenting activity, you stifle a large value of follow-on activity that could generate unforeseen benefits.
- Software is relatively cheap to create. Unlike biotech, for example, the tools of software production are free, highly available, and inexpensive. The main cost is labor (human capital), but that applies to every kind of innovation.
- Software is already protected by copyright and trade secret protections. If someone steals your code or your propriety ideas, you can sue for damages or injunctive relief. Does this encourage some companies to keep their innovations secret? To some extent, but I’d argue that the effect is minimal in a world where innovators increasingly recognize that sharing information freely has tangential benefits that control with an iron fist doesn’t provide.
The point is this: Software companies don’t need patents to innovate, and instead rely on first-mover’s advantage and fast, cheap, and early productization. Patents thus have no role in incentivizing software development; if anything, they are used to protect aging technology platforms that can no longer innovate enough to be profitable.
Another interesting data point: Some very smart business school researchers, in trying to figure out why certain areas have flourished with startup activity (Silicon Valley) while others haven’t to the same extent (Boston/Route 128), hypothesize that the CA state public policy of not enforcing non-compete agreements is a significant factor (link is to a TechDirt post summarizing the research as of 2007). The idea is that non-compete agreements hamper the free flow of human capital, which, in turn, hampers the free flow of information between and among different companies, stifling overall innovation. There’s also the raw fact that it’s more attractive to be in CA when you know you can’t be forced to sign away your ability to get a new job if your current job sucks.
The upshot, in any case, is that, in industries like software that innovate quickly, cheaply, and broadly, legal restrictions on the free flow and use of information are akin to chains that drain capital and stifle innovative activity.
Here’s a hypothetical to illustrate my point. Let’s say that Friendster, way back when it was horribly slow and a little trashy, decided to patent “social networks.” Ignore the possibility of prior art for a second, or assume that the patentee was the earliest social network, probably something even worse than Friendster was. Then Facebook comes out, and LinkedIn, and all of these other social networks. But Friendster has a patent; it can enjoin all of the other social networks from operating, and so can extract extortionist rents against them through litigation, or sue them into oblivion before they start in the first place. In this world, we’re either left with one social network (Friendster), which sucks and refuses to innovate because it doesn’t need to; or, we have many social networks all paying tithes to Friendster, making it the biggest bully on the block. For 18 years.
The reality nowadays is even worse than that. Software patents are usually prosecuted (a term of art, “patent prosecution” means getting a patent from the Patent Office) by lawyer-“innovators” and/or purchased by investment banking funds that bankroll litigation to realize profit from the patents themselves. Basically, these people buy patents and use the patent system to sue actual companies that innovate and make things, in order to extract money from them for absolutely no value returned. And in every case, the “invention” was something developed independently by the company being sued, so the patent quite literally added nothing to innovative activity.
This is in my opinion, one of the greatest shames of our legal system, that we allow, and even support, the transfer of wealth from technologists to lawyers and bankers. This is, in all senses, a tax on innovation, a toll that people who want to improve the world (and make money, too) have to pay to people who are, quite literally, economic leeches. These “investors” argue that they are performing an important economic function by creating markets in “property.” This is a gigantic pile of bullshit; they’re doing to the tech sector what Wall Street has done to Main Street, using the legal system to perpetrate a con job of the highest order while lining their own pockets.
The issue of the patentability of software is nominally up for Supreme Court review in the Bilski case. Current prognostications are that nothing will change, as the Supreme Court already rubber stamped the practice in prior decisions. Knowing that, software innovators can only keep trudging on ahead and cross their fingers, hoping some banker doesn’t pop out of the wall to ask for his toll along the way.
As to patents in other sectors: I’m of the opinion that patents are bad for innovation in almost every sector, including biotech. But, at least superficially, patents are important for sustaining certain business models where development costs are astronomical, particularly the “blockbuster” drug model in pharmaceuticals. I argue that those are business models that we shouldn’t be supporting in the first place - pharma, for example, focuses on drugs that are marketable and will sell (say, erection enhancing medication) rather than on life-threatening diseases with small potential sales markets. The incentives, at least in biotech/pharma, are all wrong, and patents are the main legal framework that enables those incentives.
The thing that always irked me about the usual unemployment number was that it excluded people who were underemployed and those who have “given up” on their job search. If you count those people and other marginally unemployed people usually excluded, as Zero Hedge points out the actual rate is about 17% (as if 10% wasn’t skurry enough). As they note: “U-6 represents total unemployed, plus all marginally attached workers, plus total employed part time for economic reasons, as a percent of the civilian labor force plus all marginally attached workers.”
Also, Henry Blodget points out a PIMCO report saying, in upshot: “Many job losses are occurring in industries with broken business models and jobs won’t return quickly. This will put downward pressure on wages.” All the more reason for the under and unemployed, lawyers included, to start thinking outside the box and building new businesses from the ground up; no one is going to save us from this mess except ourselves.
OK, not really, but the Dealbook blog has a post that basically echoes my rant from a few weeks ago.
Also, see the highlighted portion. Mr. Garth’s opinion is obviously self-serving, and, frankly, he’s wrong. Students going to his law school, and many many others, are basically guaranteeing themselves crushing debt burdens with no reasonable way to pay them off; there is, after all, only a limited amount of legal work to do, and far too many mediocre lawyers to do it. When are we going to hold these so-called “educators” accountable for what amounts to an enormous scam on students? And it isn’t just law students either, in most fields (journalism? business?) that extra degree is basically worthless.The American Bar Association, which continues to approve law schools with impunity and with no end in sight, bears complicity in creating this mess. Yet a spokeswoman, citing antitrust concerns, says the A.B.A. takes no position on the optimal number of lawyers or law schools. So then how about the schools? Can they save future generations of students from themselves?
If it means shrinking classes, don’t count on it. Limiting education is un-American, not to mention anticapitalist, even if many law schools appear to profit from what may charitably be called an inefficient distribution of market information.
Take, for instance, the employment statistics posted on the Web sites of three low-ranked law schools in New York City, the country’s biggest market for legal employment. All three advertise that 45 to 60 percent of their 2008 graduates who reported salary information are making a median salary of $150,000 to $160,000.
Now, of course there must be some way of slicing and dicing the numbers to yield that magic result. But what happens, in practice, is that prospective degree-purchasers enroll in these $43,000-a-year programs believing their chances of landing that Big Law job are about one in two. Tempting odds.
Other schools market their degrees without six-figure promises. “If you counted on starting at $160,000 per year, then you’re in for a huge disappointment,” said Bryant Garth, the dean at Southwestern Law School in Los Angeles, where enrollment is up 11 percent. He disagrees with Miami’s approach and believes that trying to shrink class size amounts to panicking. “I insist law is still a good career,” he said. “Students may just have to make it in a more entrepreneurial fashion.”
Either way, the burden falls ultimately to aspiring legal eagles to reconsider motivations rather than borrow money on the expectation that they’ll make fat salaries, pay off debt in short order and win that express ticket to an upper-middle-class lifestyle. Because those days, grand as they might have been, are gone.
(via lookatthisfuckinghipster)
The easy part is getting the book deal.
The hard part is getting people to actually agree to represent the content that the deal was based on when you realize the pictures you swiped off the internet are not public domain and unusable in the actual book.
Copyright laws are unjust, free these amazing photographs so that we can have more horseshit book deals! Down with copyright! Yeah!
Although, realistically, the copyright holders should consent to use of the photos in the book for a small fee and attribution, otherwise they’re getting neither money nor publicity.
45 notes (via soupsoup & lookatthisfuckinghipster)
Ash has a great column on Augmented Reality. I’m not sure that it’s all going to be so “cool” - the implications of 3-D AR advertising gimmickry are positively hideous. But, interesting column and great primer on the whole AR thing.
This shit is moronic. People aren’t going to be walking around with their iPhones pointed at everything just so they can get useless Yelp reviews and shitty ads. The only way this would work is if people had the information on their glasses/contacts, but that’s just the old Wearable Computing problem that we still haven’t solved. People were doing this back in the late 1990s at the MIT Media Lab and that shit was bogus then, and is still bogus now. “Augmented Reality” is another ones of those tech trends that the olds think is really cool (like Second Life) but ends up sucking horribly because it’s boring and the practicalities evade useful engineering.
13 notes (via johncarney & charitini)
(Not!)
But Obama is not Bush’s third term, that’s ridiculous. He’s operating in a world of limited options, as all presidents do, but thanks to the last eight years, his are more limited than most.
Does anyone really believe this? Obama has a Democratic Congress and had a popular mandate (that he has since squandered) to make fairly significant changes from the start. Yes, Bush committed him down certain paths (the bailouts, Iraq), but Obama has gone for those paths with far more gusto than he needed to (see, e.g., reinflating the financial bubble with massive free liquidity; appointing the same crooks who contributed to the financial bubble to all of the major levers of power over the economy; continuing and extending all of the secrecy policies started under Bush).
The worst part isn’t that he has condoned or done all of these things, but that he has never even attempted to explain to us why he felt it necessary to do them. I voted for this guy not necessarily because I thought he’d knock heads from day one, but because I thought he would at least, in contrast to Bush, truthfully explain what the executive branch was doing and why it was doing it. Instead, we’ve seen massive extensions of Bush policies and no explanation for why those extensions were necessary. Where’s that open and transparent government we were promised?
Speculating on why things are going this way, I’ve concluded that the Obama administration is right-center corporatist not because the policies of the Bush administration tied their hands, but because politicians need to be right-center corporatists to leech up campaign funding and get/retain power. I’m just wondering what the point of having power is if you’re not going to use it to help people but instead you’re just going to funnel money back into the same 1% that got you elected. It’s pointless.
The electorate was sold a bill of goods on the whole idea of “change” and now we’re seeing exactly how big the pile of bullshit was. Obama’s hands aren’t tied by eight years of Bush, they’re tied by how broken the whole U.S. political system is.
10 notes (via peterfeld & youngmanhattanite)
Is New York poised to become the next tech startup mecca?
Chris Dixon has a post up about how he predicts that New York will be the next sprouting place for tech startups. He posits the following:I think the only explanation is that the finance bubble of 2003-2008 was a giant talent suck on the East Coast. The people I knew graduating out of top engineering or business programs on the East Cast were all trying to work at hedge funds or big banks or else felt like fish out of water and moved west. Money was flowing so freely in the finance world that there was no way the risk/reward trade off of startups could compete. Eventually it just became downright idiosyncratic to be a startup person on the East Coast. The Larry and Sergey of the East Coast were probably inventing high frequency trading algorithms at Goldman Sachs.
But this is why New York City now seems poised for a technology startup boom. The finance bubble has burst and the industry will hopefully return to its historical norm, about half its bubble size. The traditional advertising and media businesses are in disarray. The people who work in them will no doubt find new applications for their talents.
Here’s my spin on it: the entrenched media interests who dominate much of the NYC tech scene were still holding on for dear life during the last few tech booms and refusing to innovate, which locked up a lot of talent and energy with old money. Now that newspapers are dying, journalism is in flux, and media is looking for a new identity, there is a lot of talent in the city with training in both “traditional” media/journalism and web technologies. These cross-trained people, once they decide they can’t make money blogging, are going to get together to build platforms that will rebuild new media from the ashes of old. This very blogging platform we’re using, based out of NYC, is evidence of that, and I think it’s only going to get bigger as more unemployed media types realize that their most lucrative path is to do what all the Sil Valley kids have been doing for the past 15 years - starting companies and sucking up VC funding.
This observation was also inspired by my visit to the Manhattan Googleplex yesterday. There are a lot of very talented and very hungry engineers employed at GOOG but not blissful about being cogs in a very large machine, and that leads me to think that the software developer resources of the city are lurking largely untapped waiting for good startup ideas to latch onto.
Juries: Why they suck and why you should never go to trial
One of the great virtues of the American justice system, we are told, is the venerable jury, a selection of our peers who decide our cases and dispense justice. Truth, we are told, is best found through the lens of our neighbors and colleagues.
Fuck that noise.
Any litigator will tell you that juries are by and large inept, lazy, inattentive, and, well, stupid. Part of this is because the majority of our fair citizens are also inept, lazy, inattentive and stupid, and part of this is because jury selection processes tend to favor “bad” juries.
To dig into this problem, it’s important to understand what juries are supposed to do. Law divides issues at trial into two broad categories: issues of law and issues of fact. An issue that involves both is usually called an issue of law applied to fact, but courts have various totally unprincipled ways to kick those issues into one category or the other. Issues of law are the province of the judge, and the judge alone has the power to decide them (technically, the judge can’t punt these to the jury). An example of an issue of law is the interpretation of a statute, or the current legal standard for a particular claim. Issues of fact are the province of the jury, and cannot be decided by the judge. An issue of fact is a factual scenario disputed by the parties and argued via evidence, e.g., whether the light was red or green.
So far so good, right? Well, not really. First, factual disputes in complex litigation are often highly technical and…complicated. Each sides brings expert witnesses, science is debated and argued, and in the end, “fact” becomes just another malleable concept to be argued over. Juries generally aren’t sophisticated enough to cut through rhetorical bullshit to weigh evidence properly, and “truth” becomes a reflection of their inherent biases rather than careful consideration of evidence.
The rot would be contained if juries just decided facts, but judges, being inherently lazy, like to kick legal issues to juries too. Juries get to decide whatever is presented to them on a verdict form. Judges and parties thus have discretion to craft verdict forms that include legal issues, cloaked in the ambiguity of the law/fact dichotomy. The usual application of this is in allowing a jury to both find facts and apply the law to those facts by instructing the jury, through often arduous readings of jury instructions that may take several hours, on the law. We thus end up with juries deciding facts based on gut feel, and then applying law that they can’t possibly understand (the lawyers usually barely understand the law as it is) to those “facts.” If a jury isn’t qualified to find facts, how possibly could a jury be qualified to understand law after being speed-read through it and apply that law in a rational way to the facts it found?
Obviously juries can’t do any of the above, so we’re left with complete unpredictability in litigation. A colleague of mine once told me that, even if you have an airtight case, you should plan for a 1/3 probability, minimum, that a jury will get every issue wrong. How insane is this? We decide the fates of individuals (criminal law) and businesses (civil law) with a 33% baseline rate of failure. The lack of rationality is astounding.
Other countries handle litigation a bit more fairly, and certainly with a more keen eye toward finding the truth rather than churning inefficiencies. We thus have some evidence that it can be done better, but obviously given how packed Washington is with lawyers invested in our horrible justice system, the chances for reform are nil.
My bottom line is that if you’re involved in litigation, unless you really have nothing to lose, never ever go to trial. If your lawyers don’t tell you how dicey juries are, they’re lying. Settlement is often the best option, and you should push your attorneys to settle cases favorably over taking them to trial unless you want to make new law on appeal, or you’re sure that an appellate panel will side with you (and you have the stomach to handle a long appeal process). This is one of the reasons why, when selecting counsel, you should ask about the lawyer’s rates of settlement and settlement outcomes rather than trial victories. Being represented by a fearsome trial lawyer can help drive settlement, but it’s usually better to have a solid negotiator with a good track record on your side.
I’ve been saying for quite some time that one of the most entertaining results of Obama’s election would be the inevitable heartbreak of his true believers. Politics is mostly useful to crush dreams.
Thanks to Ian I know the moment has come.
Don’t look at us, we only voted for him because he’s black.
Carney’s observation sort of misses the point about the backlash against Obama from progressives. It’s not Obama the man who has been such a disappointment per se; it’s that all of us young’uns have realized that our grand dreams of reform just won’t happen without some literal or metaphorical bloodshed. Look at all of the bought-and-paid for industry cronies Obama has, perhaps out of necessity, surrounded himself with. The disappointment isn’t because “true believers” dislike the man (although he’s a figurehead for it) but because they dislike the system and the fact that even he of such great charisma has, thus far, been unable or unwilling to transcend it. The health care reform debacle, continuing Bush administration military and anti-terror policies, kowtowing to entrenched business interests in finance, media, telecommunications, and basically every other area where the reforms and/or proposals have been pathetically weak, at best, just reinforce the sad truth that our government is impossible to reform.
The great disappointment for me, personally, is that, as much as I have faith in technocratic government to do good, and do good for everyone, ours will probably never get there without some WWII level catastrophe to force it.
35 notes (via youngmanhattanite & johncarney)
Pretty sure GMail went down today because I went to the NYC GOOG plex today and ate all their yummy food
It’s like fucking heaven there, I have no idea why people would leave, with all the food, video games, computers, Internet, smartasses…which I guess is the point. Better than the Sil Valley sprawling complex only because it’s more compact. And, it’s in a semi-trendy area in Chelsea/West Village! Fuck yeah NYC!
I still have no desire to live here.
I'm too old for this shit...
…is the mantra until you’re out and surrounded by a dozen pieces of ass, then it’s “I’m totally just old enough for this shit.”
Abandoning the Obama movement
Like any good technocrat, I’ve been woefully (understatement of the year) disappointed in the Obama administration. Let’s take a look at the hit parade of awesome that has been the Obama presidency thus far.
- Leaving ~50% of appointed positions unfilled. Speaks for itself; I saw an article on this earlier in the week but I can’t find a link to it now.
- Appointing the usual suspects, i.e., the people in the pocket of the extant powers in the financial industry or those who caused/supported the financial collapse, to major positions of power in the government’s financial regulatory apparatuses: Tim Geithner, Larry Summers, Ben Bernanke, etc.
- Appointing the RIAA’s hitmen to be copyright cops in DOJ. Really?
- Allowing his healthcare agenda to be co-opted and corrupted by a group of unprincipled hack Republicans and corrupt “blue dog/balls” Democrats. It’s sort of pathetic, actually.
- The healthcare bill itself. The more I learn about it, the more it looks like a handout to entrenched insurance companies. I like the government, but I don’t like subsidies to private industry disguised as government programs (see, e.g., the AIG bailout).
- The utter and complete lack of transparency in almost all aspects of the administration, including the bailouts and war/torture/terrorism (state secrets). I mean, come on, this is the guy to campaigned on a transparency/sunlight platform and suddenly everything is a big secret?
- The DOJ DOMA fiasco, which was belatedly and half-heartedly corrected. Still, if he can’t control his own DOJ, can he really manage the government effectively?
I can come up with more, but you get the point - this is “business as usual.” We wanted change, we got more of the same. I could spin out cliches about this all day, but suffice to say these early months have been a massive disappointment. The Obama administration has been, at best, ineffectual, and at worst maliciously incompetent in governing and enacting reforms. We’re at a crucial moment in history, and “our guy” can’t wait to take a big shit on us while running toward the monied interests on Wall Street and the Bible thumpers down South.
My thought this morning, as I woke up to more news about how fucking awful things are, is to give up on the guy. Instead of blindly backing his initiatives, like the health bill, maybe we should be cutting him up for participating in the further selling-out of government in favor of special interests.
The counter, of course, is that he has to “play ball” until he gets re-elected when he can really make an impact on things; until then, his hands are tied by the machine, and we should support him in hopes of a fruitful second term.
Fuck. That. It wouldn’t have been controversial to put some real reformers into positions of power in the financial system, for example; if the political will for it ever existed, it existed in the past 8 months. But he can’t piss off his huge contributors at Goldman, can he? Or his supporters in Hollywood who want increasingly draconian and senseless copyright laws and enforcement? Everything goes back to the money, and Obama is/was as susceptible to it as anyone else, except the Republicans are vaguely more honest about their corruption.
It was naive to think he was in a position, or had the will, to “fix Washington,” I get it. Call it youthful idealism crushed by the realities of how corrupt our elders are. Whatever it is, I’m withdrawing from the Obama revolution and getting back on my stump to call out how totally fucked Washington is, left or right.
I present this without commentary, and with no pictures of Vlad Poooootin, unlike The Economist.
And there is another cost to being muscly: men’s immune systems are less effective than those of women (which was known before), and become worse the more muscular the men are (which was not).
The benefits, however, were there, as well. The more muscular a man, the more sexual partners he reported, both in the past year and over his lifetime, and the earlier his first sexual experience was likely to have been. This may, in part, be a result of the ability of muscular men to intimidate 97lb weaklings. But in a society where extreme forms of such intimidation are curbed by law, female choice seems as likely an explanation—especially as previous studies have confirmed scientifically the everyday observation that women do indeed prefer men with big biceps and triangular torsos.
