No More NDAs for me

Periodically, friends or colleagues ask me for advice about this-or-that startup company.  I love talking about that sort of thing, and I’m very happy to help, so these are great discussions.  But often, they then ask me to sign an NDA (Non Disclosure Agreement).  Yuck.  I’m never going to sign one again.

You see, when a friend asks you to sign one, to refuse is awkward.  If you tell them you don’t sign them as a matter of policy, they’ll wonder, “is it just me?  maybe he doesn’t want to help me.”  But that isn’t it.  So, I’m left either having to decide to create this confrontation, or more likely, cave in, sign the damn thing and move on.

But NDAs are a pain in the neck, and about as useful as dirt.  Why would I want a legally binding document that someone can later use against me?  If you are asking me for advice, why should I sign *your* document?  If you don’t trust me, fine, don’t ask.  But I’m a man of my word, and that’s what you’ll have to trust.  If you don’t think you can trust me, perhaps I’m not the right person to talk to anyway? 

So, this blog posting is purely a selfish one.  I post it so that in the future I can refer people to it and say, “I don’t sign NDAs, and it’s just a policy I have”.  There is nothing personal to it, and they can read it on my blog dated Aug 17, 2007.  If that is a showstopper, that’s not my problem.

One last note to potential askers of NDA signatures.  NDAs are legal documents.  When you ask someone to sign one, you are asking them to do a big favor.   Each one is different.  There are mutual NDAs.  There are one-way NDAs.  The differences are annoyingly subtle.   When someone doesn’t trust me enough to work without an NDA, I don’t trust them enough to believe their NDA won’t bite me.  So, I have to do a legal review with my lawyer.  Please respect my decision to not use NDAs unless absolutely necessary.  And, while you are at it, fire your lawyer – he is the real problem.

If You Aren’t Part of the Solution, You are Part of the Problem

Despite my frequent criticism of technology patents (and here, or here), I am also officially part of the problem.  Last week, I was issued a new patent –number 7243163.

This patent was filed March 29, 2002, while I still worked at Good Technology.  Since that time, Good was acquired by Motorola.  I assume that Motorola now owns the patent; but I don’t really know.  All I know is that while it could be used to do evil work for others, it will no longer do anything to benefit me.  It might have increased the purchase price that Motorola paid for Good, so perhaps everyone at Good owes me a nickel. 

Aside: Here is an idea for a website – sort of like the USPTO website of patents, but instead keep track of who-sued-who and who-was-awarded-what for patent infringement cases.  It would be neat to go back and find out who won from this patent just by looking up the number.

Anyway, there is one thing that makes me proud of this patent.  I am the co-author of that patent with John Friend, Roger Collins, and Mike Bennett.  These guys were all fantastic engineers, and I’m thrilled to have worked with them.  If you want to know more about what a “data processing apparatus” is, you’ll have to ask them, because I haven’t a clue.

Online signup and Online cancellation

Usually I’m pretty “anti-law”.  That is, more laws are not good – especially around software.  However, with more and more scams coming online, there ought to be a law which is quite simple.  If you allow someone to signup for a recurring-billing product online, you must also provide a simple way for that user to cancel the service online.  Like most of us, I accidentally got sucked into one; and now I can’t get out.  I knew I was treading on thin ice when I signed up, and now I am really regretting it. 

Patent Office is Under-Performing

Protecting Their Intellectual Assets: Appropriability Conditions and Why US Manufacturing Firms Patent (or not)

I read this paper by W Cohen, R Nelson, and J Walsh.  It was published in 2000.  It confirms a lot of things that we all know.  They present evidence that patents are used primarily for reasons other than what the Patent Office was created for, and that the Patent Office is probably not achieving it’s goals.

Patents are currently filed for two primary reasons:
   1) To block a competitor from getting the patent and suing you.
   2) So that if you get sued over a different, unrelated patent, you can counter-sue with an arsenal of equally unrelated patents.  

According to the USPTO, their purpose is to

“promote the progress of science and the useful arts by securing for limited times to inventors the exclusive right to their respective discoveries (Article 1, Section 8 of the United States Constitution)”

However, Cohen, Nelson &Walsh present compelling evidence that these days, companies rely heavily on secrecy and time-to-market as their primary competitive differentiation to advance science, and that patents offer little, if any additional “progress of science”.  Although the paper doesn’t show it, I postulate that patents actually hinder progress of science due to all the wasted resources that go to lawyers instead of R&D.  (e.g. Blackberry builds a phenomenal, billion dollar business, and lawyers, who produce & invent nothing, steal $600M).

The fact is that the patent office is no longer necessary.  Businesses don’t even value it.  While there may be some isolated cases where it helps individual inventors, by-and-large it is excessive and wasteful.  As a society, we would all benefit from more scientific progress if we just left inventions laissez-faire.

Friendster now has lawyer-value: Patents

GigaOM writes that “Friendster just wrote in to tell us it has been granted a second social networking patent.”  Oh joy.

As I have written before, software patents don’t work.  Soon enough, we’ll see some lawyers talking to Friendster about going after MySpace, Orkut, LinkedIn, Tribe, Tagged, and others for violation of this silly patent.  The money is just too alluring.

Nobody Wins
Let’s say Friendster is right, and that the others are “infringing” (I am making no judgement, but let’s be hypothetical).  Nobody uses Friendster because their service has been miserable.  The service is slow and they just failed to build the right features.  Myspace, Facebook, and even Orkut, have all performed much better and have orders of magnitude more users.  If Friendster were to win a patent-infringement suit, these other companies will either have to pay Friendster hoards of cash (which will just be pocketed by lawyers), or stop offering these features, or both.  In any event – the users of social networking will be the losers – as the products they use will have fewer features and possibly even carry additional fees.  Keep in mind that none of this affected Friendster’s fall – they failed only due to their own poor execution.

Proof of Invalidity
Now, you could say that Friendster pioneered this space and that is why they got the patent.  But this is not true.  The notion of uploading pictures associated to a profile is too obvious and simple.  If you read the patent, you’ll see that covered under this patent would be the notion of uploading a picture to an access-controlled or moderated bulletin board (you have a group of registered users, and there is a “degree of separation” which is enforced via the access control).  Clearly, this was done years ago, and Friendster’s patent is invalid.  The USPO is just not capable of differentiating patent-worthy from bull. 

Sadly, there is a whole army of lawyers that will argue against my example, for they want their own piece of the pie, even if the only way to do it is to steal from those that actually created something useful.

How Times Change

FEBRUARY, 1999:  During testimony in federal court, Microsoft presents a video to show how Internet Explorer cannot be removed from Windows 98 without degrading system performance and other negative impacts.  Government attorney David Boies catches a small mistake in the video, and it is discovered that the video is actually spliced from two machines.  Microsoft’s Jim Allchin claims this was an honest mistake, that IE must be bundled into the operating system, and to remove it would hinder innovation. In the end, Microsoft wins the browser war.  (See also: NY Times)

OCTOBER, 2006:  Microsoft ships Internet Explorer 7, the first major release of a browser from Microsoft in several years.  Microsoft is no longer embroiled in competition with Netscape, and instead faces eroding market share by open-source rival Firefox.  Apparently whatever happened in 1999 which made IE so tightly coupled with the OS is now irrelevant, because this browser is no longer has unified navigation with the shell (see here), can easily be installed and uninstalled, and even runs side-by-side with IE6.

I hate to look a gift horse in the mouth, but which one is it?  I guess technology has improved and now Microsoft has the technology to no longer bundle browsers.  Of course, Netscape had this technology in 1993.  On the positive side, IE7 is a huge leap forward, and its great that users can choose to either use IE6, IE7, or Firefox.  Choice is good!

Security by Lawyers – Vista’s Elevation Prompts

If you’ve tried Vista, you’ve no doubt been hit with the onslaught of “elevation prompts” for tasks that need to run with elevated privileges.  The messages are so frequent, they almost read like this:  “You’ve clicked on the Disk Defragmenter button.  Did you really mean to click the Disk Defragmenter button?”  Uh, hello?  Vista?  You mean someone else might have clicked on it?

I really appreciate that Microsoft is trying to solve the security issues they’ve had in the past.  That part is great.  The problem is that the solution doesn’t fix the problem.  As a user, Vista inundates you with “Do you want to do XYZ” so frequently that you become completely numb to the problem.  The message descriptions are obtuse, and your choices blur together.  In the end, you conclude, “damnit, just do what I say” and click yes.  If there was a real reason for the alert, the user doesn’t know and clicked through anyway.

I’m sure the lawyers at Microsoft are happy, though.  Vista provides a credible argument that Microsoft did warn you before something bad happened.  But it’s really like reading the End-User-License-Agreement (EULA) that comes with any website or software package these days – nobody reads them.  In the end, the lawyers are protected, and the users are left with unintelligible gobbledygook that just slows them down.

What we really wanted, Microsoft, was warnings about errors.  What you gave us, was a warning about anything we do normally that might be an error.   And unfortunately, 99.9% of the time, it is not an error!  So, the prompts you’ve just displayed are basically useless (except to the lawyers).

If you aren’t planning on suing Microsoft anyway, I stumbled upon this great tip by way of Omar for how to turn the damn things off.

Patents- the only way to win is not to play

In the software industry, our employers sometimes ask us to patent stuff.  The usual claim is that it is for “defensive purposes” in case your company gets sued.  Of course, as loyal employees, we want our company to safe from greedy lawyers seeking bogus patent infringements, so we blindly believe, agree, and patent like mad.

This is a fallacy, of course, and all of us at the rank-and-file levels of our companies should resist patenting anything.

The problem is that eventually patents are used for offensive purposes rather than defensive purposes.  It’s just a matter of when it economically makes sense to use the patent.  Eventually, your company will struggle financially, and eventually an energetic young lawyer will come to the senior management with a solution to the shareholders’ woes –  enforcement of patents.  This has happened too many times to count.  It is the inevitability of patents.

So, if you are a technologist, don’t file software patents.  Software patents are for lawyers that like to destroy other businesses for their own personal gain.  The USPO is not capable of differentiating a worthy software patent from mathematically impossible one. Your company may try to bribe you with incentives to get you to “help”.  Your company will claim that the patents are only for “protection”.  It’s not your company’s fault.  All successful companies need lawyers, and lawyers tell them to do this.  The company always starts out with the best of intentions.  But, mark my words, if the patent proves useful monetarily, your patent will someday be used to tear apart someone else’s hard work.

Until the law changes, the only way to win is to not play.

The Truth about NTP

NTP is the group which is suing Research In Motion, the makers of Blackberry wireless handhelds. They’ve won a $450 Million judgement and are threatening to “shut down” Blackberry. They did this because they hold a few key patents in the wireless messaging arena.

So who is this NTP? No doubt they are a struggling, small startup just doing their best to bring their own products to market while being bullied by the huge conglomorate RIM, right? Well, not exactly. Actually, NTP is a holding company that has no assets except for a couple of patents. They’ve never built a product and have made no indications that they ever plan to. Instead, their plan is to just sue anyone else who actually does build things.

Also in the news today is that NTP (via Visto) is now suing Good Technology. Good has been a competitor to RIM for a while. Last year, in order to make sure that Good was not hit by NTP’s legal shenanigans, Good and NTP inked a deal for Good to license the patents. Good was proactive in seeking out this arrangement. Although I don’t personally think NTP should have this patent in the first place, our legal system lets it be, and Good did the right thing by legally licensing with NTP. Keep in mind that Good is a small company doesn’t have the deep pockets that RIM does. This was an easy deal for NTP, as it lends credibility to their patent, and yet doesn’t represent nearly the magnitude of dollars that suing RIM would represent.

Nonetheless, NTP’s greed remains unquenched, and they’ve now decided to go after their licensee Good under the Visto name.

Do you remember Visto? Of course not. They are basically dead now. They are a small, Silicon Valley startup that made some semi-interesting, but not-too-revolutionary sync products for wireless devices. Unfortunately, like many startups, they found that their biggest impediment to success was running out of money.

Thanks to our vulturous legal system, however, the corpse of Visto is still sputtering. NTP and Visto just announced last month that Visto has given NTP an equity stake in the company in exchange for use of NTP’s patents. The San Jose Mercury News ran an article titled, NTP ally Visto sues Good over wireless patents. But I thought Good was NTP’s ally that had licensed their patents? I guess that was last year!

This whole case with RIM, Good, and NTP is such a travesty. RIM is building a great product – millions of people use it daily. NTP, by contrast, builds nothing of value. The man who originally filed the patents NTP now holds is already dead, and the lawyers that remain at NTP are suing only to get rich. In the meantime, the poor guys at Good are trying to play by the rules with their meager startup budget. As a payback for helping out NTP, NTP goes and partners with another Good competitor, and then sues Good.

I hope NTP loses big time.