Archive for the ‘Column’ Category

Packing For Walden

Posted: May 12, 2013 in Column, GT, Opinion

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I’m probably going to be consigned to whatever level
of hell is reserved for pretentious editorialists for
saying this, but sometimes when I’m trying to
evaluate some new piece of technology, I consider
whether Henry David Thoreau would have taken it to
Walden Pond with him. Wait, just give me a second. I know how it sounds.
Let me explain. I’m not some Neo-primitivist who thinks we should all
go barefoot and use calorie-impoverished diets to
extend our miserable lives. On the other hand, I’m
suspicious of things people invent that have no
purpose except a slight increase in convenience. Yes, time is the only thing that we, as privileged first-
worlders, can’t purchase. Convenience is the nearest
thing to buying time, however, and it commands an
understandable premium. That said, I can’t help but
feel that our connected world (inclusive of the web
and the devices we use to interact with it) is being populated with tools that would not look out of place
in Skymall. Google Glass is one of them (and I expect to see a
knockoff in my complimentary seat-back magazine
soon), but the objections against it are so obvious
that I abandoned several articles enumerating them
as unnecessary (one working title: HUD Sucker); at
any rate, they have been expressed perfectly well by others, and I don’t plan on duplicating their efforts.
Now that you know this isn’t about yet another opinion
on the thing, you can move your cursor away from the
“close tab” x, unless you’re reading this on Google
Glass, in which case I beg to inform you, sir or
madam, that it is not becoming. But to proceed: Technology is about empowerment,
and in fact I think that Thoreau’s modern analogue
would find many useful tools to bring with him on his
sojourn in nature. The man was, after all, hardly a masochist or even
what we would now call a Luddite, not that he had
many technologies to which he could object in those
days (“glow-shoes, and umbrellas”). He brought a
grinder with him in the days when mortar and pestle
were still in vogue, and of course many books, which were one of the primary means of entertainment,
along with drinking and conquest. Picture this modern Thoreau embarking on his
hermitage. He is not trying to return to the necessities
of cavemen — he wants to carve and fill a niche that
is big enough to hold him, his needs, and his edifying
pleasures — but no more. So while it seems unlikely he would find room in his
bag for a Slap Chop or personal air conditioner, there
are many marvels of modern technology which he
would be happy to utilize. If he could bring the entire
Western canon on an iPad (or e-reader, to conserve
power), surely that would be preferable to choosing a bare two dozen paper books. A compass would be
essential, but surely a GPS unit would not be amiss?
If a knife, why not a multitool? And if I’m honest, if
paper and envelopes, why not Twitter? But there
things begin to unravel. Enablers and facilitators Anyway, the point is not to make an inventory of
Thoreau 2.0′s bag (heavy waxed canvas, I think), but
to express that the criteria he might use to select
what goes into that bag are useful ones. The idea is
to find things that extend our own natural powers, or
grant us new ones. There is a real difference between the tools, digital or
physical, which empower us with new actions, and
the tools which merely make existing actions easier.
If you want to chop down a tree, it is not realistic to
do it with your teeth. Yet once a man has an axe, it is
only a continuum of difficulty between felling the tree with that, and felling it with a chainsaw. The
difference between the two is only effort. Similarly, if you want to communicate with someone
across the world, or retrieve information hosted on a
server thousands of miles away, you will need a tool
— even the most stentorian or far-sighted among us
could not hope to work in place of the most
fundamental element of a phone or the Internet. But once that connection is made, as you add speed and
modes of consumption, past a certain point you are
no longer enabling new actions, but rather facilitating
existing ones. I’ve always liked Samuel Warren’s description of
difficulty in Ten Thousand A-Year: “What is difficulty? Only a word indicating the degree of strength requisite
for accomplishing particular objects; a mere notice of
the necessity for exertion; a bugbear to children and
fools; only a mere stimulus to men.” Do we all need the digital equivalent of chainsaws,
reducing the necessity of exertion to its absolute
minimum? Note, I don’t think we’re quite there yet –
our devices and networks are still developing. But
once you see that something is not actually new, but
only does what another thing did before faster or cheaper, isn’t it a rational choice to draw a line there
— whichever side of that line you choose to stand
on? For more powerful tools carry risks and problems of
their own, and some find that the cure is worse than
the disease. It’s a mistake to write off such people as
simply old-fashioned, or ignorant, or afraid of the
future. There are sophisticated objections to these
things on the tumultuous outmost margin of technology, every spasm of which is breathlessly
extrapolated into some magical future by pundits with
brief memories and narrow considerations. Sometimes, on reflection, I find myself among their
company. That’s why I like this little Thoreau
exercise. A simple question: Does this add something
new, as an axe or a mobile phone does? Or does it
make something easier, as a chainsaw or Google
Glass? And in either case, at what cost? The answer is rarely surprising, but the process helps
clarify what exactly it is that I think I need from these
things, what they really provide, and what may come
in the future to replace them.

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A New York appellate court has recently ruled in UMG Recordings v. Escape Media Group that the safe harbor protections that Congress designed for Internet
companies do not cover sound recordings made
before 1972. The decision is a new and unexpected
break with earlier decisions by state and federal trial
courts. As a result, Internet companies that host or transmit
songs before 1972, including hits from The Beatles,
The Rolling Stones, and Elvis Presley, may no longer
rely upon the DMCA’s safe harbors to insulate them
from potentially crippling legal liability as a result of
copyright infringement that arises from downloading, hosting or transmitting copyrighted sound recordings. The Decision Escape Media Group, which owns the Grooveshark
music hosting site, was sued by Universal Music
Group, a major rights-holder, in New York state court
for infringing UMG copyrights in pre-1972 works.
Grooveshark permits users to upload recordings to its
servers and lets other users stream that music. UMG sued Grooveshark for hosting UMG-owned
copyrighted songs from prior to 1972 without a
license. Grooveshark argued in the trial court that its services
were protected by the DMCA safe harbors,
specifically Section 512(c). As we’ve discussed
before, this safe harbor immunizes service providers
that host user uploaded content so long as the
service provider posts a DMCA policy, adheres to DMCA notice and takedown provisions, and complies
with other formalities. The trial court agreed with
Grooveshark (as well as an earlier federal court
decision) and found that Grooveshark’s hosting of
pre-1972 songs was protectable under the DMCA.
UMG appealed, and on April 23, this decision was reversed by a New York appellate judge that found
the DMCA safe harbors inapplicable to copyright
infringement of sound recordings created before 1972. Why does 1972 matter? In 1971, Congress amended
the U.S. Copyright Act to include federal protection
for sound recordings “fixed” on February 15, 1972. At
the same time, Congress included in Section 301(c)
of the Copyright Act that “any rights or remedies
under the common law or statutes of any State shall not be annulled or limited” by the Copyright Act until
2067. UMG argued that it had common law rights in
sound recordings fixed before February 15, 1972 and
its rights could not be annulled by the DMCA safe
harbors. Grooveshark countered with a public policy point,
arguing that Congress could not have intended the
Copyright Act to be read in this way, as it would
“eviscerate the DMCA.” Unluckily for Grooveshark,
shortly before this decision was issued, the U.S.
Copyright Office sent a letter to Congress stating that the DMCA did not cover pre-1972 sound recordings,
and urged Congress to fix the issue. At the end of the
day, the appellate court rejected Grooveshark’s
position and held that pre-1972 sound recordings were
not covered based on the text of Section 301(c) and
the legislative history. The court punted the issue back to Congress, stating “it would be far more
appropriate for Congress, if necessary, to amend the
DMCA to clarify its intent, than for this Court to do so
by fiat.” The Aftermath Though it has its critics, the DMCA provides Internet
services, including content-hosting sites, certain peer-
to-peer services, search engines and ISPs with
defined protections from copyright infringement
claims based on the transmission, downloading,
uploading, caching, or linking to digital copyrighted content. Under Section 512, the DMCA protects four
types of Internet services — called “service
providers” under the Act: 1) conduits, like ISPs, that
transmit material through a network; 2) caching
services; 3) service providers like YouTube or Veoh
that store user uploaded content; and 4) information location tools, like search engines. The DMCA also
exempts nonprofit educational institutions from
liability. With this decision, those protections may have gone
up in smoke. Therefore, Internet companies hosting
pre-1972 sound recordings can face claims for actual
damages and injunctions under common law. Actual
damages can be substantial. For example,
BlueBeat.com settled a lawsuit for approximately $1 million for claims to streaming and selling Beatles
songs, many of which were recorded prior to 1972. On
the flip side, since this decision applies to state
common-law copyright protections, it means that
service providers may be clear of the worst penalties
for copyright infringement for infringement of pre-1972 sound recordings. Under federal law, which would be
subject to the DMCA, a service provider can face
“statutory damages” that can range from $750 to
$30,000 per work (meaning that, for example, a service that is found to host 1,000 infringing
copyrighted songs could be hit with a $30 million
award). Further, though UMG has won the day in New York,
there remain a lot of uncertainties regarding its claim.
The copyright rules of the road that have developed in
cases involving Internet companies have developed
in connection with claims arising under the federal
law. It is uncertain how legal issues, like the determination of indirect liability, the evaluation of
affirmative defenses (such as fair use and “Betamax
defense”), and the calculation of damages will occur
under New York common law. As a result of this case, Internet companies with a
presence in New York (and perhaps other states,
should this decision prove persuasive in other states)
are now facing a two-regime copyright system and will
face increased regulatory costs as a result. Going
forward, these companies should take a hard look at what content is hosted, transmitted or cached through
their services using, for example, logging techniques
or third-party systems, such as the Content
ID systems employed by sites like YouTube, to audit
content on their service. This can inform appropriate
action—either identifying a need for content licenses or a need to engage in increased technical self-help
measures to curb infringement. These costs are obviously unwelcome for technology
companies, and we expect that this decision may fuel
the drumbeat for Congress to act to amend the
Copyright Act to correct this statutory loophole.

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A clear legal standard for determining patent-eligible
subject matter remains elusive. On Friday, the
Federal Circuit, in CLS Bank International v. Alice Corporation, ruled that an invention involving software for a computerized trading platform does not
constitute patent‑eligible subject matter. The decision
— which spanned 135 pages — by a 10-member en banc panel of the Court included seven separate opinions, but not the clarity many had hoped for. Alice’s computerized trading platform patents were at
issue in the case. Those patents describe a process
for two parties to exchange obligations, such as stock
trades, which are then settled by a trusted third party. The focus of the legal proceedings was Alice’s patent
claims. Positioned at the end of a patent, claims are
numbered sentences that define the scope of
protection afforded by the patent. Among other
requirements, the subject matter of a claim must
comply with section 101 of the patent laws. Section 101 defines patent-eligible subject matter and
reads: “Whoever invents or discovers any new and
useful process, machine, manufacture, or
composition of matter, or any new and useful
improvement thereof, may obtain a patent therefor,
subject to the conditions and requirements of this title.” Alice asserted a variety of its patent claims in the
case, including claims written in method, system and
computer-readable-media claim formats. However,
Alice’s asserted claims generally share the same
underlying premise — that of software for exchanging
obligations between parties through a computerized trading platform and using a third party to handle
settlement of the exchanges. What Guidance Did the Court Provide for Software
Patents? A majority (seven of the 10 members) of the Court
concluded that Alice’s method and media claims are
not directed to patent-eligible subject matter. The
Court split 5-5, however, on Alice’s system claims. A
split means the lower district court’s ruling, which
found Alice’s system claims patent-ineligible, stands. A majority (eight of the 10 members) also agreed that
Alice’s method, media, and system claims should
rise or fall together when determining patent eligibility. The majority consensus ends there. A majority of the
Court, however, failed to reach agreement on the
reasoning behind these conclusions. Judge Lourie, in an opinion joined by four judges
(Judges Dyk, Prost, Reyna and Wallach), found all of
Alice’s asserted claims drawn to patent-ineligible
abstract ideas. In his view, Alice’s method claims are directed to
nothing more than the abstract idea of reducing
settlement risk by effecting trades through a third-
party intermediary. This, he said, is a “disembodied”
concept without any real-world application. Computer-
related aspects of the claims — including steps for creating records to store data, using a computer to
adjust and maintain those records, and reconciling
those records at the end of a trading day — in his
opinion failed to add anything of substance that would
save the claims. Judge Lourie similarly grouped Alice’s media and
system claims in the same boat with Alice’s method
claims. He characterized the media claims —
although defining physical storage media — as
nothing more than the same underlying method of
reducing settlement risk “in the guise of a device.” He then questioned whether structures found in the
system claims—including “a computer” and “a data
storage unit” — could justify a different approach for
those claims. In his opinion, they did not. He
reasoned that the computer-related limitations failed
to provide any “meaningful distinction” from the computer-related limitations found in the method
claims. In a separate opinion, Chief Judge Rader said he
would have found the system claims patent eligible.
Three judges (Judges Linn, Moore, and O’Malley)
joined in that part of his opinion. In Chief Judge
Rader’s view, the issue was “whether a claim includes meaningful limitations restricting it to an application, rather than merely an abstract idea.” Applying that rationale, he reasoned that the
structural limitations in Alice’s system claims (e.g.
limitations drawn to “a computer” and “a data storage
unit”) brought those claims into the realm of patent-
eligible subject matter. However, in the remainder of
his opinion (which only Judge O’Malley joined), Chief Judge Rader concluded that Alice’s method and
media claims are patent-ineligible abstract ideas. Judges Linn and O’Malley, in a separate opinion, said
they would have also found Alice’s method and media
claims patent-eligible for the same reasons expressed
in Chief Judge Rader’s opinion regarding Alice’s
system claims. Additionally, they noted that several
technology companies, in amicus (friend-of-the–court) briefs, expressed concern about what they viewed as
widespread proliferation and aggressive enforcement
of low-quality software patents. In responding to that
concern, Judges Linn and O’Malley said Congress,
and not the courts, is the proper avenue for
developing special rules for software patents. For example, they speculated that Congress could limit
the term of software patents or devise rules for
limiting their scope. Judge Moore, in a separate opinion (in which Chief
Judge Rader and Judges Linn and O’Malley joined),
said she would have found the system claims drawn
to patent-eligible subject matter. She also wrote that
the uncertainty in court decisions over this issue is
“causing a free fall in the patent system.” If all of Alice’s claims are not patent-eligible, she conjectured
that “this case is the death of hundreds of thousands
of patents, including all business-method, financial-
system, and software patents as well as many
computer implemented and telecommunications
patents.” In a separate opinion, Judge Newman shared the
majority view that all of the claims stand or fall
together. She would have found Alice’s system,
method and media claims patent‑eligible based on the
plain language of section 101. Chief Judge Rader offered an additional opinion
captioned “Additional Reflections.” There, he
emphasized that the Court should focus on the
language of section 101 and indicated it is unlikely
that innovation is promoted by the subjective
standards for evaluating patent eligibility expressed in the panel’s opinions. What’s Next for Software Patents? The Federal Circuit has ruled, but the dividing line
between patent-eligible software and patent-ineligible
abstract ideas has not come into focus. Some may
say the landscape remains in a similar state as it was
before the Federal Circuit’s decision: some software
claims might rise to the level of patent-eligible subject matter and others may not. The CLS Bank case is likely to undergo Supreme Court review. The Supreme Court may view the
Federal Circuit’s fractured decision as an opportunity
to consider software patenting again. Whether a clear
dividing line will emerge remains to be seen.

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These days, it seems that anything that whiffs of the
traditional PC has all the market appeal of a month-
old banana. Microsoft and its hardware cohorts are
trying to fight back against the image of the staid
tower and notebook with touch-enabled, all-in-one
computers, clickety-covered tablets and convertible notebooks that twist like a contortionist. With no
stake in Windows to protect, though, device
crowdfunders have taken a different tack, pushing
Android and other mobile OSes into alien
configurations. While a bit of old hat for tiny game
consoles from OUYA and GameStick, the game is now on for more general computing tasks. Backed: MiiPC ZeroDesktop is a more established business than your typical solo entrepreneur sailing
off into crowdfunding waters. But its experience with
cloud services, as well as remote access lend
differentiation to MiiPC, an overgrown milk pint of an
Android computer that features extensive controls for
the pre-tween to tween in your household and a green under-light for no good reason except it looks kind of
cool. MiiPC will feature a companion app that lets
ever-watchful parents and guardians control access to
apps like a boss regardless of the theme-song
message of Malcolm in the Middle. The MiiPC project wrapped up this week more than
tripling its $50,000 goal for the mini-desktop that
backers could scoop up for $99. As the device uses a
similar chipset to the one in present-day Google TV
boxes, the company is going to turn its interns onto it
this summer to see what kind of alternative uses can be found for a small, albeit plug-tethered, Android
device. Whacked: Aurus Dual-Screen Tablet PC. What madness is this? A mobile device with not one but
two displays? The unthinkable has been thought of
with Windows PCs by Toshiba and Acer and an
Android device by Sony. All failed in part because the
underlying operating systems are not optimized for
doing things like, say, putting a keyboard or game controls on one screen with the display of an email
client or game on the other. The campaign page
acknowledges the issue, asking, “Need some dual
screen apps?,” assuring backers that they are
developing some. Sony, for its part, said it was
working with third-party developers. But, again, good luck with that without Google throwing its full weight
behind multi-screen devices. Backers could have nabbed the double-barrell Android
tablet starting at €399, but it passed few consumers’
screenings. The project racked up little more than 1
percent of its lofty €200,000 goal. Backed: CoolShip. It wasn’t quite the level of integration we see in today’s all-in-one computers like
the iMac, but some of the earliest PCs had no
separate tower enclosure, integrating the processor
and memory into the same casing as the keyboard.
Perhaps the slickest examples of these early designs
were from Commodore, which used them in the rotund and popular Commodore 64 and VIC-20. Indeed, that
brand and its tell-tale industrial design has been
trotted out for pricey Windows-ready x86 PCs
designed into cases appealing to the nostalgic. The Android-touting CoolShip, on the other hand, is
not only cheap at $99, but even upgradeable so you
can swap in new, more powerful processors as they
become available. The flexibility should also help
address another issue with computers integrated into
keyboards: death by spilled beverage. CoolShip sailed by its campaign goal of $10,000, nearly
doubling that amount, and is expected to start
shipping to backers this month.

Email, Still A Sonofabitch

Posted: May 12, 2013 in Column, GT, Technology

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Just about two years ago, I went off the deep end. I
had come home early from an event in an effort to do
something responsible: email. I was on the road and
knew the situation would be dire (since I had not been
checking my email all day). I was wrong. It was a disaster. It may as well have been Inbox Trillion. There was no way I could get through it all with my
sanity intact. So I did the only logical thing. I quit
email. It was both an experiment and a statement. I decided
that I wasn’t going to respond to email for an entire
month. And while I did cheat a little (I would still
check it from time-to-time in case of emergencies and
to delegate some work-related items that couldn’t
wait), it was without question one of the best months I’ve ever had. I was decidedly less stressed out. I found myself
enjoying the internet more. I no longer dreaded
opening up my laptop or looking at the push
notifications on my phone. And guess what? If
someone really needed to talk with me about
something, they figured out a way. Funny how that works. And yet, the good times couldn’t last. The month
came to a close and I was back on email. While I
don’t think I actually missed anything in my time
away, the sheer ubiquity of the medium and the
realities of life brought email back into my life full
time. And I hate it more than ever. In the months and now years following the
experiment, a number of people have asked for an
update on my epic battle with email. The good news
is that a few things have gotten much better. The bad
new is that everything else has gotten much worse. After my experiment, I tried a bunch of different
things to make my email situation more tenable. What
I ended up coming to was a system where I would be
checking email constantly throughout a day,
responding to what I could quickly from my phone,
archiving anything that didn’t need a response, and keeping the rest in my inbox until late at night, when
the incoming volume would drop to near zero.
Anything that wasn’t timely would then sit in my inbox
until the weekend when the incoming volume is
uniformly lower. It was a bit like letting pressure build up (quite
literally, you might say) and releasing a bit of it at
night so my inbox wouldn’t explode. And then
releasing the rest of it every weekend. And then
starting over on Monday. Every Monday. Forever. This was my life. And while it was manageable, you
know what? It still sucked. Because I would find
myself getting gradually more and more stressed out
throughout the week as I saw my inbox grow and
grow leading up to the weekend release. It made me
more stressed out on Friday than on Monday. I now somewhat dreaded the weekend. Email time. Then one day a CrunchFund portfolio company asked
to run an idea by me. That company, Orchestra, was
planning to take what they had learned from their to-
do list app and make a new kind of email client. That,
of course, became Mailbox. From the moment I first heard the idea, I knew it was
a winner. It was essentially taking a lot of what I was
manually doing with email and streamlining the
process. And they were doing it in an extremely smart
and even sort of fun way, using the native niceties of
modern smartphones. Mailbox quickly became my most-used app. It still is.
It basically alleviates the pressure build-up in my
inbox by allowing me to release it constantly
throughout a day. Brilliant. But also sort of an illusion. I’m not alleviating the pressure by responding to
emails right away. Instead, I’m pushing them off to
deal with at a later time. My system of responding to
emails at night or on the weekend is largely the same,
I simply no longer have to watch those emails build up until I am ready to take action. Now, don’t underestimate how wonderful such a
system is. And it’s a system that will continue to
improve with automations and the like now that
Mailbox has the resources of Dropbox behind them.
But don’t be fooled into thinking that the problems of
email have been solved. The underlying issues very much remain. Mailbox simply perfected the game of Whac-A-Mole
that we all play. One major issue that remains with email is the notion
that every message should get a response. And a big
reason why I hate responding to email during the day
is that too many people are too quick to respond to
my reponses. For every email I send in the day, I
seem to get two in return — often immediately. (As a result, this caged animal has been learning not to
touch the electric fence — hence, night and weekend
emailing.) And a large number of those responses are
“K” or “Cool” or “Great” or “Thx” or some other banality
best left unemailed. The problem with these responses, even the short
ones, is that they all take time to consume. If I read
them in Gmail, it takes a couple seconds to load the
response. And then another couple seconds to
archive it. If I read them on my phone, I have to wait
a few more seconds to download the messages from the server. Not to mention the push notifications that
come in alerting you to the new message, taking up
yet more precious seconds. Seconds make up minutes, which make up hours,
which make up days, which make up months, which
make up years. One day we’ll all be laying on our
death beds wishing we hadn’t wasted all that time
reading a million “K” email responses in our lives. Email needs some sort of quick response or maybe
even a no-response reply system. Maybe it’s read/
unread states that all recipients can see. But that’s
been tried before and understandably, some people
don’t like others to know when they’ve read a
message. So maybe it needs to be a simple checkmark, like Path recently introduced in its new
messaging system. Or maybe the answer is something like emoji/smilies/
stickers. Believe me, I know how lame this must
sound. I mean, stickers for Chrissakes?! But ignore the immense cuteness and joy of stickers for a
second and focus on what they signify: an ultra-quick
way to express a reaction. This could work for email
too. Neither of these things would work if they simply
came in the form of yet another email response —
thus, defeating the purpose. Rather, these should be
in the form of some sort of quick-loading visual cue
that resides *on top* of an email system. That would
likely require everyone using the same email service (unless this somehow became a new standard that
every email service provider adopted — not gonna
happen). But perhaps a fall-back system could be put
in place to deliver these quick messages in email
form if the recipient isn’t using the correct email
service (giving them an incentive to sign up). I guess my point is that while we’re seeing a lot of
services come out with new and interesting ways to
combat email overload — beyond Mailbox, see:
Handle, Triage, Evomail, Mail Pilot, and many others
— the only way email ever truly gets “fixed” is to be
completely re-imagined. It doesn’t need a paint job, it needs a demolition job. My fear is that this will never happen. We’ll keep
getting better tools to handle email on various devices
(on your iPhone, on your iPad, on your iWatch, on
Google Glass, etc) but eventually the moles will
become too quick and plentiful for any of us to
whack. At that point, email will become something we only
use for work while we use some other quick
messaging system for everything else. This is
already happening to some extent — when was the
last time you sent an email for “fun”? — but the
messaging world is increasingly fragmented and not universal. Earlier this week, I announced my next step
professionally. It resulted in over a hundred emails of
well-wishes and congratulations. These should have
left me feeling wonderful. They did not. Unfortunately,
the medium has become the message.