It's always nice to get quoted in the press. I received an e-mail query from a reporter for Information Management asking about the recent discovery that our federal government was gleaning information from many of our largest technology companies.
The link above will take you to the story, but here's what I had to say:
Dr. Bruce Abramson, an intellectual property partner at Rimon, P.C., says that from a technical perspective, “the key thing to remember is that there is nothing new here.”
“Multinational Internet companies have long had to cope with governments seeking access to their data; Google's conflicts with [the government of] China were a high profile example,” Abramson says. “The ‘secret’ was thus not that governments spy on their citizens, but, rather, that our government does so. Looking forward, this issue will not go away. How will companies cope? With the same combination of compliance and technical resistance they have always employed as part of the cost of doing business around the world.”
People are getting pretty upset about “patent trolls” these days. So much so, that even the White House is getting into the act. And that’s the sort of thing that everyone should notice. Because speaking as a guy who has spent most of his career in the technology and IP worlds, I can tell you that a Presidential statement about patent law is a pretty rare thing.
Some of the President’s ideas about improving our patent system seem reasonable. Others are innocuous. But as I have been writing for years, our IP systems need wholesale reform—not tinkering at the edges. This need is as clear in the “troll wars” as it is elsewhere.
So let’s reiterate some basics. The clear, stated (right in the Constitution) purpose of our IP systems—both patents and copyrights—is the promotion of science and the useful arts. We recognize that, in the absence of some sort of “exclusive rights,” the free market would lead to an undersupply of innovation and commercialization. IP attempts to motivate additional investment in these arenas by guaranteeing that those who risk their time, effort, and capital successfully will reap greater rewards than the free market would otherwise allow.We approach this motivational task by insisting that:
There are plenty of reasons behind each of these elements of our IP systems—some good, some bad, some grounded in history and some embedded in international treaties. But laid out in this manner, it is hardly surprising that we keep stumbling upon ways in which our IP systems threaten the very advances that they are supposed to motivate. The “troll wars” in particular have far more to do with our litigation system than they do with our patent system.
…and there it is in a nutshell. By all means, let the political class make speeches and decry abuses. But in the final analysis, when we create systems and grant rights, we should expect people to use them in the manner that conveys the greatest personal benefits. "The fault, dear Brutus, is not in our stars, But in ourselves, that we are underlings."
Suppose you combined a decline in confidence with the global financial system, a distaste for fiat currency, a handful of secretive encryption specialist, and the Internet. What would you get? The answer is Bitcoin, a technological attempt to tether global currency to something stable and tough to manipulate, like mathematics, rather than something unstable and manipulable, like politics.
In fact, Bitcoin exists and it has started to receive a reasonable amount of media attention. Here is a link to an article in which the reporter that did two useful things: He provided a nice introduction to the technology, and he interviewed me about it.
At that point, early 2012, I emerged as something of a skeptic. Not because I found the premise technologically infeasible (I don’t), and not because I believe that too few people will ever accept it (I defer judgment). My skepticism was borne entirely on my understanding of governments. As I see it, sovereigns of all stripes guard two prerogatives most zealously: the monopoly over waging war, and the monopoly over minting money. Bitcoin is a direct threat to the latter.
I predicted then—and I continue to believe—that no one would much care about Bitcoin unless it promised to succeed. After all, as long as it is little more than scrip for technogeeks, it’s no threat to anyone. When it branches beyond the tech community as a money-laundering mechanism popular among the criminal and terrorist sets, it starts to rankle. And when it reaches the point of qualifying as a currency, it threatens the primary basis of sovereignty. As I saw and see it, Bitcoin cannot succeed because it will not be allowed to succeed. But along the way toward oblivion, Bitcoin would first encounter the SEC, the IRS, and their numerous international counterparts—considerably dulling its attraction.
Early 2012 was still early in the Bitcoin saga. In 2013 it took off, as this article notes, gaining rapidly in both acceptance and value. When I read, in April, that the dollar-denominated value of a Bitcoin had grown 2500% in the space of a year, I suspected that the end was nigh. Then, a couple of weeks ago, I read of the closure of a sizable Bitcoin exchange, and I knew we had reached a turning point.
While others may predict the end of Bitcoin, they do so on grounds that are far too narrow—such as the emergence of a superior digital technology. But they continue to miss the basic point. Bitcoins subject to the full range of international and securities laws will lose much of their allure, while any currency completely untethered from political judgment will threaten some very powerful forces.
So by all means, expect Bitcoin to continue to attract attention, and expect it to raise some very interesting technical and legal issues. Just don’t expect it to survive all of that interest.
A few weeks ago, while reviewing the names in my contact list, I ran across a name that I thought I had purged long ago: a disturbed (and disturbing) man named David (last name withheld), whom I had met in San Francisco some years ago. That name triggered a deliberative stream of consciousness that got me thinking about some folks who keep popping into the news: those who knew the murderous Tsarnaev brothers back when they appeared to be little more than troubled souls--rather than the ticking time bombs they turned out to be.
David and I had little in common other than a quirk of timing. We arrived on the same neighborhood “scene” at the same time, and thus spent a couple of months as the new guys favoring a few of the same local haunts. Though I tried to bond with my fellow new guy, I found myself grasping at straws. He styled himself a “Producer,” though as far as I could tell he was basically a handyman and a wannabe party planner (not really unusual on the SF scene). He was also re-acclimating himself to society following a lengthy stint at a Buddhist silent retreat. His silence followed him. At his best, he came off as a big, brooding guy, hopping from party to club to café to lounge without ever breaking a smile. At his worst, he came off as weird, even by SF standards. On one occasion, for example, I recall his taking personal offense when one of our haunts rearranged its furniture.
After a while, David decided that he was ready to return to his Production career. He took what he claimed was his life savings and invested it in a rave. Several members of the crowd—successful event planners and DJs—proffered their advice, but David ignored them all. He was, after all, a professional. He spent weeks talking up his forthcoming event. He started comping tickets to build a crowd. All, alas, to no avail. The event came and went with almost no advanced sales. Those of us who did show did so to support David—and using comped tickets. In a world that gets started around 2 AM, David’s rave peaked at 10 and was empty by midnight.
That experience apparently sent him over the edge. I heard—from various sources—that his drinking was becoming excessive and that he was becoming belligerent. Several people related evenings on which he had been asked to leave a venue, and he was reportedly falling behind on his bills. Eventually, he broadcast a conspiracy-theoretic screed, complete with the run-on sentences and unique grammar and spelling for which the genre is known. He styled himself the victim of racist stalkers in a plot orchestrated by a cabal of Jewish nuns. (For the record, if asked to pick a celebrity whom David most resembled, I would probably go with Bob Hoskins). His rant went on for thousands of words and several e-mails, all delineating the various evils that had befallen him through no fault of his own.
Two days after he circulated his screed, we found ourselves in the same café. He approached me. I told him that I had a zero-tolerance for anti-Semitism policy, and that I was no longer interested in having anything to do with him. I left. He followed, screaming that he was a victim. I told him to stay the hell away from me. Fortunately, enough others gave him a sufficiently similar message for him to comply. Other than a couple of second-hand reports, I never saw or heard him again.
Until, that is, I discovered his name still buried in my contact list. So I did what we all do these days—I Googled him. And I learned that several years later, David achieved a bit of notoriety for stalking and threatening the life of a public official. That also, it appears, earned him a bit of a jail sentence.
But the experience set me to thinking about the troubled souls we meet in life. I never particularly warmed to David, and by the time we parted I found him downright distasteful. I thought that he was a dangerous guy, a ticking time bomb whom I wanted as far away as possible before his explosion. I fully expected to hear a story about the day that the wrong person said the wrong thing in the wrong way while he was holding the wrong power tool—with results that were both tragic and predictable. Yet, even in retrospect, it’s not clear to me that—aside from protecting myself and my friends—there was anything that I could have done to prevent such an occurrence.
The question lingered in my mind, perhaps because of the unfolding saga of the Tsarnaevs. Not too long ago, these brothers were mere Davids—troubled souls whose acquaintances may well have seen them as ticking time bombs. What could these acquaintances have done? What should they have done? After all, most such time bombs will defuse themselves before they explode. The world possesses no shortage of people who are unfriendly, belligerent, and paranoid, but not criminal. Most of them abuse their family, neighbors, and co-workers—unfortunate, but again not criminal. Some, like David, direct their screeds to the wrong recipient and end up doing a stint behind bars. Others, like the Tsarnaevs, enlist (or get recruited into) violent grievance movements—in today’s world primarily though hardly exclusively Islamist—and become terrorists.
What can—and should—we do to break this cycle?
I don’t have a clear answer to this question. At some level, the freedom of belligerent, paranoid troubled souls is part of the price we pay for our own freedom. At another, we should certainly police those who recruit these folks into their armies of paranoia.
Mostly though, we can sit and wonder about the people who “never saw it coming.” It’s not that hard to spot a ticking time bomb, and it’s even easier to spot prime recruiting material. The Tsarnaev’s uncle got it right. When the losers we know become criminals or terrorists, we really should have seen it coming.
The WSJ decided to weigh in on this question yesterday, by presenting something of a debate. Yet this article, like most such discussions, misses the basic point.
Are exclusive rights, of the sort that define our IP systems, potentially useful in motivating innovative software development? Absolutely.
Can the bundle of rights that we use successfully to motivate innovation in pharmaceuticals similarly motivate innovation in software? Not a chance in hell.
By bifurcating all IP into the buckets of patent and copyright, we shoehorn innovations where they have no right being. Our patent system offers a uniform set of rights to innovators in all industries, independent of: up-front capital needs; likelihood of success; typical time from investment to return; ability to divert work if you are not first past the post; and relationship between innovation and product. While judges may vary their ruling by industry, they have no statutory right to do so--it represents clear activism from the bench. And to make matters worse, we imposed this uniformity on patent systems around the world via international treaty (TRIPS).
The debate over software patents will continue until we do the sensible thing: craft a set of rights tailored to the needs and incentives of software innovators.
I wrote about one such system more than a decade ago. I was not the first. I was not the last.
And I am not holding my breath.
The California Legislature shot down a "Right to Know" law that set Silicon Valley against Consumer Advocates. Basic question: Does a consumer have the right to demand any report that an on-line data aggregator compiles and sells about him?
The argument is straightforward.
The "pro" side believes that I have a right to know what others know--or think they know--about me.
The "con" side notes that such a requirement would be cumbersome, would complicate business, and would likely lead to further regulation and litigation.
This issue will not fade soon for a simple reason: They are both right.
Aconsumer's "right to know" depends on many circumstances. Things like Credit Reports, that banks use to deny individuals the ability to avail themselves of publicly posted deals, fall on one side of a line. Reports that advertisers may use to tailor ad copy falls on another. After all, observation and stereotyping have long been central to business. A merchant capable of "reading" perspective customers who walk into his shop, and who teaches the skill to a son or apprentice, is simply doing business. Data aggregators are the modern equivalent of these venerable merchant skills.
On the other hand, someone who advertises an offer, accepts and application, and then says "I reject your request for this publicly available offer because of data on your report" may owe the rejected party some further information.
Putting the pieces together, I do not necessarily have a "right" to know anything that anyone knows, thinks they know, or believes about me. If I had that right, communication and commerce would come to a screeching halt. I should, however, have some rights to know why I have been singled out for rejection in a deal allegedly open to the broad public.
So there is a line. We just don't know where to draw it. Yet.
The State of Israel turned 65 last month. Though I may have missed the moment, it remains a fine season to pronounce loudly and proudly that I am a Zionist.
I am extraordinarily proud of the Jewish state. I believe that in the years since the land emerged from the last of a long line of invaders and colonial powers, Israel has indeed become a light to the nations—the demonstrable near-universal preference for darkness notwithstanding.
Success under ideal conditions is a noteworthy achievement. Israel has learned how to thrive under conditions as adverse as those facing any nation on the planet. The country has opened its arms to countless immigrants; developed a world-class economy; demonstrated unrivaled excellence in innovation and education; established truly liberal governance and a genuinely independent judiciary; quelled brutal ethnic uprisings with unequaled restraint; enacted a generous social safety network; and never once deviated from the state’s liberal underpinnings. It has achieved all of these goals under constant threat of annihilation, and amidst overwhelming opprobrium. Indeed, the Jewish State has become the Jew of the States—proving that the unthinkable is doable, and meeting near-universal resentment for doing so.
That Israel has imperfections and internal tensions goes without saying. It is, after all, a human society, and human societies are replete with imperfections and tensions. Yet admiration and pride rarely require perfection; they typically require “only” excellence. And by any reasonable objective measure, Israel has excelled.
That Israel is an appropriate source of pride should be beyond question. The more appropriate question is what right I have to be proud. After all, what role did I play in making Israel what it is? The answer, I am sad to say, is none at all.
I have never claimed any country other than the United States as my own, and I cannot envision a day that I will. I consider myself extraordinarily fortunate to have been born an American. I have an intense—fierce—pride in my country, and I consistently assert with pride that in the history of the world, no country has given more and demanded less than the United States of America.
So what is Israel to me? Yes, it is a place that I have spent many lovely vacation days. But so is Greece. And yes, it is a place in which I feel entirely comfortable, as if at home. But so is Canada. Israel is both of those things—and more. Israel is my ancestral homeland. It is a land that has been bred into my DNA for countless generations, since Abraham first followed divine guidance to find it roughly 4,000 years ago. That is my connection to the land of Israel, and to the modern Jewish State that has brought it to life.
That view of Israel as my ancestral homeland but not my country likely puts me well within the mainstream of Jewish America. My unbridled pride in what the Jewish State has become likely does not. And that is a source of great sadness and concern.
Where is the mainstream of Jewish America? Though my studies are entirely informal, I can summarize my findings in two words: Apologetically Zionist.
As far as I can tell, most Jewish Americans still support the idea of a Jewish homeland in our ancestral home, and most still support the State of Israel. Yet more and more of them seem to hang their heads while doing so. More and more of them look at Israel and see its flaws first, citing its virtues only as necessary justification for their visceral support. More and more still-Zionist Jewish Americans look at Israel and see first what its enemies see: a belligerent, oppressive occupying force exploiting indigenous people while falling beneath the thumb of extreme religious radicals. That they continue to support Israel despite this view is a testament to their deep and abiding love for the country—or at least for the concept that the country represents.
Yet such love, and such support, is necessarily ephemeral. In time, it will slide inexorably into another category—one that while still small, is growing at an alarming rate. Those who grow tired of apologizing for a loved one inevitably turn away, becoming opposed in all but name. A disturbing number of Jewish Americans have embraced a movement whose only fair sobriquet is “anti-Zionist in all but name.” These folks have become so fed up with Israel’s constant problems that they approach the country in ways almost indistinguishable from those that Israel’s explicit adversaries favor. Yet unlike those adversaries, they wrap their positions in language of tough love, insisting that they alone know what is best for the Jewish State. They bristle at the suggestion that they are anything other than Israel’s staunchest supporters, yet when put to the test, they cannot name a single significant arena—economics, social justice, foreign policy, treatment of minorities, religion/state relations—in which they believe Israel excels. Such “support” is truly incomprehensible. After all, who in their right mind would support a country that is fundamentally misdirected in all of those areas? Where is the rationale? Their putative support reeks of filial obligation, and will soon slide into resentment—and overt opposition.
My experience, through significant reading, conversation, and observation, as well as reference to web sites and opinion polls, suggests that I, as a proud Zionist, belong to a dwindling minority of Jewish Americans. Apologetic Zionists and Anti-Zionists in all but Name are ascendant—and they all place the blame for their alienation squarely on Israel, where it emphatically does not belong. They would do better to question the motives and reasoning of their American ideological allies whose leads they are following, but they remain resistant to such self-reflection. It is always easier to blame “those Jews” for blackening the names of the Jewish State and the Jewish people than it is to look in the mirror.
And so, with each passing year, this dangerous trend becomes more pronounced. The Apologetic Zionists become ever more apologetic, and increasing numbers join the ranks of the Anti-Zionists in all but Name. This latter group, for its part, steps up both its anti-Israel rhetoric and its steadfast insistence that it represents the voice of the truly supportive. Alliances with explicit Jew haters become increasingly overt and acceptable, as they lump those of us who remain proud of the homeland we support with racists and extremists whose views lie—by definition—far beyond the pale of acceptability or decency.
That is the trend that I see developing. If I am correct, a major rift between the Jewish communities of the United States and Israel is imminent.
Israel, that most paradoxical of nation-states, celebrated its 65th birthday amidst yet one more paradox. Never before has Israel given Jewish Americans more arenas in which to be proud. And never before have Jewish Americans taken less pride in their ethnic homeland.
Those who speak Hebrew may note an interesting phrase in Hatikvah (“The Hope”), Israel’s national anthem. Ode lo avdah tikvatenu; Hatikva bat shnot alpayim. The word “ode” has many possible connotations, each with a nuanced difference. Today, the most accurate translation might be “We have not yet lost our hope; the two-thousand year hope.” To an increasing swathe of contemporary Jewish America, “ode” now connotes not yet, but we’re getting close.”
I may be out of line with my times, but I remain a proud Zionist. I see no need to pretend that my ethnic homeland is perfect, and no need to insist that it become so. I stand by my pride in its excellence, and in the internal mechanisms that it has adopted to ensure that it remains vibrant, free, and capable of improvement.
It's rare that direct personal experience provides an opportunity to call a prominent speaker to task. The esteemed Professor Dershowitz of Harvard Law School has provided me with such an opportunity.
For the past couple of weeks, Dershowitz has been positioning himself as a martyr in the cause of peace. For example, in today's Jerusalem Post, he writes: "I was booed and jeered at the Jerusalem Post Conference on April 28, 2013 when I proposed an idea for restarting peace negotiations with the Palestinian Authority."
Don't believe it for a minute. I was at that conference and in that audience. It was Dershowitz that was entirely out of line, demonstrating rare arrogance and contempt for people eager to hear what he had to say.
The conference hosts invited Dershowitz to sit on a panel about the two-state solution. Dershowitz accepted the invitation. He was the first speaker. The crowd received him politely without notable cheers or jeers--despite his best efforts at provocation.For example, Dershowitz floated a partial proposal for restarting peace talks based on his personal conversations with Mahmoud Abbas, then asked Yuval Steinitz, the sole panelist holding a Ministry in the current Israeli government, for an immediate response. Steinitz wisely punted until later in the panel. During the conversations that followed, Dershowitz noted that he had "forgotten" to include several key elements of his proposal. Taken together, Dershowitz had attempted to put an Israeli Cabinet Minister on the spot by demanding an immediate answer to a partial proposal. Being Dershowitz, of course, he never bothered to apologize.
During the panel's Q&A, Dershowitz did, as he claims, suggest "that President Mahmoud Abbas of the Palestinian Authority might consider not bringing a case against Israel to the International Criminal Court as a way of showing good faith and making a concession calculated to encourage restarting the peace process." What spurred the crowd to laughter was not the suggestion itself, but rather Dershowitz's assertion that he trusted Abbas to follow through on his word, and that this trust formed the basis for a reasonable negotiation breakthrough.
Dershowitz responded as one who sees himself as above his audience. He lashed out. He screamed at the audience, questioned their seriousness, challenged their reason and credentials, insisted that they were not at his level of understanding, and tried to shame them into silence. That met with more than a few "boos."
Finally! Dershowitz had achieved his goal. It was clear to me that he entered the room intent upon picking a fight, and that he would not leave until he had succeeded. At the time, I did not quite understand why he would do that--and what's more, why he would choose to fight with a room full of people who are essentially his political allies.
His subsequent behavior--as his JPost blog shows--explains it all. Dershowitz was intent upon joining the ranks of the martyrs. He needed to paint himself as one who would go to the mat for the sake of peace, even in the face of hostility and derision. That the crowd was neither hostile nor derisive was a problem, but not one that the great Sir Alan of Harvard could not circumvent. He proved decisively that a sufficiently hostile speaker can eventually elicit hostility from even a civil audience.
As I noted to my friend, Dershowitz devalued the content of his message with his boorish behavior. He raised issues and possibilities that warranted discussion and exploration, then buried them by behaving like an arrogant jerk. The story should have been "Some interesting ideas arose at the Jerusalem Post conference, including a suggestion by Alan Dershowitz that..." Instead, the story became "The great and noble Professor Dershowitz, at great risk, challenged his audience by..."
Why would he take such a view? Hard to say. Perhaps he was embarrassed. Having taken the campaign trail to explain why the influence he maintained with the Obama Administration was critical for Israel, he then stood hapless while Obama named Chuck Hagel as his SecDef. While Dershowitz's basic point--that pro-Israel voices close to the Obama team are critical--remain accurate, it's not clear that they are of significant value. It must be truly humbling for a man as prominent as Dershowitz to have to admit that, having put his considerable reputation on the line to gain access and curry favor, his influence remains both minimal and marginal.
Dershowitz remains one of Israel's great defenders in American academia, and his boorish arrogance can do nothing to minimize the inherent value of his work. But he is at his best defending Israel against the genuine enemies of the Jewish State. He is at his worst defending himself against those he has derided and insulted.
The Jerusalem Post conference last week highlighted Alan Dershowitz at his worst. If he had any sense, he would have let the incident pass as quickly and as quietly as possible.
Bitcoin, the digital currency, continues to generate interest. Today's WSJ weekly interview with Gavin Andresen, Bitcoin's lead software developer, provides a teriffic quick summary for those not yet up to speed.
But it also provides all of the information necessary to appreciate why the grand claims that some make for its future are pipe dreams.
"I'm hoping to learn," [Andresen] says, whether "a nongovernmental global currency" is possible.
The answer is yes. It's called gold.
Bitcoin is an absolutely fascinating experiment, and I am certain that it will generate interesting results and insights to both human behavior and the nature of currency. But the idea that it will displace our current monetary system is a joke--and a bad one--as the discussion that follows this quote demonstrates.
If Bitcoin prevails, who will lose? Every politician or banker, anywhere in the world, following any political philosophy or form of governance, with a stake in the status quo. Governments are most zealous in their protection of two key prerogatives: the right to wage war and the right to mint currency. When Bitcoin begins to emerge as something other than an experimental game, it threatens that order. The status quo will fight back.
Who will win? Consider the following: Bitcoin will become worthless in the absence of enforcible property rights and contractual obligations. If the police and courts of a given country refuse to enforce Bitcoin-denominated deals, Bitcoin will become little more than a useful implement for bartering within a small community. It may still be quite valuable in that role, but it will hardly replace our current currency system.
Furthermore, let's assume that all governments determine that it is desirable--or even necessary--to develop a global currency. Where will they turn? Bitcoin, as a distributed currency, is (supposedly) impervious to central control. Gold, as a physical entity, requires central control. Anyone care to guess which one the centralized contollers will prefer?