Sometimes the Details Matter

October 10, 2011

Professional coaching of all sorts seems to be having its moment, both for individuals and within the business world.  A recent article in the October 3, 2011 issue of The New Yorker by Atul Gawande made a compelling case for coaching.  Although Gawande, who is a surgeon in Boston and a faculty member of Harvard’s Medical School, is no slouch, he voluntarily subjected himself to the vulnerability of being coached by a more senior physician with favorable results.  

The article contains many good insights on the do’s and don’t’s of coaching.  Among them is this anecdote involving John Wooden, UCLA’s celebrated basketball coach:

” The U.C.L.A. basketball coach John Wooden, at the first squad meeting each season, even had his players practice putting their socks on.  He demonstrated just how to do it:  he carefully rolled each sock over his toes, up his foot, around the heel, and pulled it up snug, then went back to his toes and smoothed out the material along the sock’s length, making sure there were no wrinkles or creases.  He had two purposes in doing this.  First, wrinkles cause blisters.  Blisters cost games.  Second, he wanted his players to learn how crucial seemingly trivial details could be.  “Details create success” was the creed of a coach who won ten N.C.A.A. men’s basketball championships.”

Jaron Lanier on the Human Side of Technology

July 26, 2011

“I’m disappointed with the way the Internet has gone in the past ten years.  . . . I’ve always felt that the human-centered approach to computer science leads to more interesting, more exotic, more wild, and more heroic adventures than the machine-supremacy approach, where information is the highest goal.

“At the South by Southwest Interactive conference, in Austin, in March of 2010, Lanier gave a talk, before which he asked his audience not to blog, text, or tweet while he was speaking.  He later wrote that his message to the crowd had been:  “If you listen first, and write later, then whatever you write will have had time to filter through your brain, and you’ll be in what you say.  This is what makes you exist.  If you are only a reflector of information, are you really there?”‘

— From a profile of Jaron Lanier, author of You Are Not A Gadget and one of the pioneers of virtual reality technology, in Jennifer Kahn, “The Visionary,” The New Yorker, July 11 & 18, 2011, pp.46-53.

Excerpt: The Spark for Groupon

July 12, 2011

The following excerpt is from “Groupon Therapy” by Lauren Etter in the August 2011 issue of Vanity Fair (available on newsstands now), in which Groupon co-founder and CEO Andrew Mason shares how his work in developing an earlier social action website called the Point, the cost of which had been underwritten by investor Eric Lefkofsky, evolved into Groupon, which is considered by many to be the leading group discount buying site on the Web, after:

“I’d always thought with the Point that I’m going for the big win and changing the world,” Mason says. . . . But the socially conscious efforts didn’t attract enough subscribers, and they fizzled.   By October 2008, the Point was on the verge of being shut down.

“Eric [Lefkofsky] was pressuring me to think radically differently and figure out a way to monetize the site,” Mason recalls. 

Mason had noticed that the most popular campaigns on the Point involved group buying.  He decided to set up a sub-business dedicated to commerce rather than ideals.  At first, Mason say, he thought the new business would just be a way to pay the bills.  His friend and co-worker Aaron With came up with the name Groupon — a fusion of the words “group” and “coupon.”

Mason credits Lefkofsky for the shift in his focus:   “He just created a splinter for me.  It was that agitation that he created that ultimately led to the formation of Groupon.”

Major ISPs and Content Providers Band Together for New Copyright Alert System

July 10, 2011

A group of major Internet service providers (ISPs), content provider organizations and two leading industry associations just announced last week the establishment of the Center for Copyright Information to better educate the public about appropriate online copyright usage and a soon-to-be-implemented uniform Copyright Alert System in hopes of deterring unauthorized Internet use of copyrighted materials.  Included as signatories to the Memorandum of Understanding (the Copyright Alerts MOU), which outlines both initiatives, are the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA), Disney Studios, Sony Pictures, Warner Bros., UMG, EMI, AT&T, Verizon, Comcast and Time Warner Cable.

Unlawful sharing, downloads and use of copyrighted materials over the Internet has been the bane of many creators of copyrighted works, particularly the major record labels and movie studios.  The music industry has had some success in pursuing infringement through lawsuits against significant peer-to-peer site operators (e.g., Grokster and LimeWire).  It has also experienced somewhat mixed results and lots of negative PR via aggressive lawsuits by RIAA against individual users.    For their part, ISPs have been burdened with assisting, at least indirectly, in related policing efforts by virtue of administering takedown policies and procedures pursuant to Section 512 of the Digital Millenium Copyright Act (DMCA). 

So, while not abandoning altogether their current practices and rights, the signatories to the Copyright Alerts MOU  will implement a system of uniform notices that content organizations can send to participating ISPs, which will then issue a series of escalating alerts to alleged infringers that seek to halt the alleged infringing activity.  The types of alerts in ascending order are (i) an Educational Step Copyright Alert, (ii) an Acknowledgment Step Copyright Alert, (iii) a Mitigation Measure Copyright Alert Step.  For each step there may also be multiple alert notices provided to an applicable user.  Measures proposed at the Mitigation Step include a reduction in upload/download transmission speeds, a step down to a lower tier service, redirection to a landing page until the matter is resolved, and restrictions on Internet access.  There are several “warning bells” along the alert steps as well as an appeals procedure (although a user is required to pay a $35 fee to pursue an appeal). 

The tenor of the Copyrights Alert MOU and an FAQ on the Center for Copyright Information’s website makes clear that this is intended as a sort of experiment to address a problem for which a solution has long eluded a diverse group of stakeholders.  While it is too early to judge how this will work in practice, it appears to be a constructive effort worth watching.

Skype Stock Options Flap

July 9, 2011

Interesting column earlier this week by Steven Davidoff in the NY Times’ DealBook column on the seeming differences between venture capital firms and private equity groups.  It seems that just before its sale to Microsoft, Skype, which was then controlled by the private equity firm Silver Lake, gave notice to Yee Lee, a former employee, of its intent to exercise its right to repurchase at their exercise price shares of stock that might be acquired by Lee upon his exercise of vested stock option awards.  The situation received widespread attention in Silicon Valley following Lee’s rant on his FrameThink blog about how the practice was contrary to start-up company norms, at least by Silicon Valley standards, and the rant was subsequently picked up on by a writer at Fortune magazine.  Davidoff concluded that Silver Lake’s emphasis on maximizing every dollar even at the expense of its reputation for fairness being pilloried provided a key contrast with the focus by VCs on entrepreneurial creative and relationship economics.  Skimming the reader comments propmpted by the former employee’s blog post and the DealBook post, makes clear that such distinctions may be more in the eyes of the beholder than real. 

The same is true with whether the practice engaged in by Skype with its stock options repurchase program is typical.  From my own experience, it appears atypical and counter to the goal of employee retention, at least if the way the options agreement clauses work in practice was not made clear to subject employees.  Had they been aware of the potentially aggressive approach to repurchase employees may have chosen to stay longer (or, of course, possibly not have joined Skype in the first place).  You have to read the letter — Lee has handily posted the letter — that Skype sent to Lee to appreciate the almost comical nature of the situation.  Davidoff makes the point that sympathy is difficult where the employee did not ay close enough attention to the specifics of the underlying contract.  That may be partially true, but when one doesn’t read the contract and finds out that things were not really as one expected, that is sometimes as much about the abnormality of a situation as it is about making carefree assumptions.

“Hot News” Doctrine Not So Hot

July 5, 2011

In Barclays Capital, et al. v., Inc., Docket No. 1-1372-cv (2nd Cir. June 20, 2011), the Second Circuit U.S. Court of Appeals dealt a significant blow to the viability of the tort of “hot news” misappropriation and thereby gave an additional boost to the status of online content aggregation companies. 

As so-called “new media” companies go, the subset known as content aggregators — such as the Huffington Post or the Drudge Report — have been a curious burr in the side of many, more traditional media businesses engaged in news gathering and reporting.   If content aggregation sites are readily able and without payment to repurpose the efforts of the old line news outfits such as the Associated Press, The New York Times or ABC News, for example, does this threaten the core news gathering and reporting functions of that latter group and, if so, should there be a prohibition on such aggregation activities.

Background of Hot News Doctrine

The “hot news” doctrine is intertwined with copyright law and derives from a 1918 U.S. Supreme Court case involving International New Service (INS) and the Associated Press (AP),  in which INS was prohibited from free riding on the AP’s efforts by taking factual accounts derived from AP news stories and then presenting the news stories as INS’s own reports.  International News Service v. Associated Press, 248 U.S. 215 (U.S. 1918).   The doctrine was later severely limited by the Second Circuit in National Basketball Association v. Motorola, 105 F.3d 841 (2nd Cir. 1997), which addressed a collaboration between Motorola and a reporting service using pagers to transmit with only a few minutes delay game scores and data compiled from various sources and which competed somewhat with the NBA’s own efforts at packaging and selling games data in more or less real time.  The NBA court articulated a multi-factor test for when a hot news misappropriation claim would survive copyright law preemption and ultimately concluded that the hot news claims asserted by the NBA were preempted by copyright law because the actions complained about by Motorola, among other things, did not involve any free riding and thus did not satisfy the elements of a hot news claim. Read the rest of this entry »

State Data Breach Laws: Mississippi Makes 46

July 1, 2011

Mississippi’s  data breach law, enacted in 2010, comes into effect today (July 1, 2011), and brings to 46 the number of U.S. states that have data breach notification laws in effect.   The District of Columbia, Puerto Rico and the U.S. Virgin Islands also have such laws.  The only states that remain without data breach notification laws are Alabama, Kentucky, New Mexico and South Dakota. 

Mississippi’s statute on the matter is similar to that of most of the other states that address data breaches.  Notification is required if there is a covered data breach by an entity or person doing business in the state, with exceptions for encrypted data or an incident that has been reasonably determined after an appropriate investigation to not be likely to result in harm to the affected individuals.