As you may recall, I started late on the garden this year, and decided to minimize the plantings.

I am glad.

I started with this:


A few weeks later, had this:


And, now, after 3 weeks away with the garden on the automatic watering, I have more than enough work cut out for me:


Due to the late start and the cool summer start, I still don’t have any ripe tomatoes, but there are hundreds of green ones. And I can’t wait.

There are a few ripe cucumbers, and I suspect I’ll find a few other early goodies when I clear the weeds, prune the plants, and support the plants that have outgrown their allocated spaces.

Overall, I’m congratulating myself on the decision to downsize the garden this year. At the beginning, when the plants are small, it seems so easy to add just one or two more. But now, when production is in full swing, I’m going to have several hours of work each weekend just to keep the plants healthy and bearing fruit.

The garden/start-up analogy is clear: Plan for growth at the start so that it doesn’t crush you when it comes.

A Novel Open Source License

I’m in London, finishing up a European vacation with a visit to a couple of clients for work before heading back to Silicon Valley.

Today, one client’s CEO showed me around and introduced me to one of the tech guys. After shaking my hand, one of them immediately enlarged the newest open source license he wanted to get approved for his project:

The Do What the Fuck You Want License.

I had never encountered this license in the past and was a little flabbergasted to encounter it on-site on-screen for immediate approval.

I am happy to report, I managed to maintain some semblance of composure and let them know that for this particular client’s needs, this license was acceptable.

Also, I immediately went back to my hotel and looked up the history, as I couldn’t believe that this license was already on Version 2.0 after only a decade or so… The GPL is only on 3.0 after 23+ years!

Amazon Calls California’s Cards

Wednesday, California’s Governor signed a bill into law that modifies the definition of “doing business in the state” for the purposes of collecting sales tax.

The bill explicitly includes retailers

entering into agreements under which a person or persons in this state, for a commission or other consideration, directly or indirectly refer potential purchasers, whether by an Internet-based link or an Internet Web site, or otherwise, to the retailer, provided the total cumulative sales price from all sales by the retailer to purchasers in this state that are referred pursuant to these agreements is in excess of $10,000 within the preceding 12 months, and provided further that the retailer has cumulative sales of tangible personal property to purchasers in this state of over $500,000, within the preceding 12 months

Amazon responded today by terminating all of its California Affiliates.

Internet taxation by States is an ongoing conflict on many fronts, and no doubt there will be many battles that will be fought in the future.

For example, The Performance Marketing Association is currently challenging a similar law in Illinois on the grounds that it is unconstitutional.

For the meantime, the end result is that California will not be collecting any sales tax from Amazon, *and* it won’t be getting any income tax from the terminated affiliates either.

The Next Cycle

Due to living part-time in the Seattle area and part-time at home for 3 months, I haven’t had the time to garden as much as I would have liked. Law? Lots of time for that. Tech? So much I don’t quite know how to process it. But Garden? Well, the Garden took a bit of a back-seat for the months prior to last frost.

Of our 8 garden beds, only 5 are planted (and some not fully). At this time of year, that’s a waste of resources.

But, I have experience on my side. While I know I am wasting space that collects amazing sunlight and could be used to grow beautiful California plants, I also know that each one of those plants sucks the resource of time.

And, if I am honest with myself, I didn’t have enough time to properly prep all of the beds even before the plants need attention. Too many travels. Too much work. So, this season, I am focused on proper execution in the garden. Maximum quantity of quality within the constraints that I have.

Again, my garden is a perfect metaphor for one of the cycles in start-up life (when you could do more, but it would suck time and/or nutrients from other things that don’t have enough to support them unless you scale back for a season).

The tomato seedlings post-planting:


The eggplants (the big one will be asian purples, the small one below it is a breed of white/pink mini-eggplants):


And, of course, the peppers:


Habanero, Hungarian Carrot, Jalapeño, Caribbean Red Hot, & Anaheim.

Already, the investment is starting to show returns. The tomato plants are dark green and easily triple the size shown in the photos above, eggplant fruits are showing, and the peppers are already flowering. Also, several cucumber plants and squash plants are spreading their hungry vines in search of sun. Even with perfect weather, it will not be the biggest harvest I’ve ever prepared, but it is clearly focused on the most high value benefits (e.g. those that produce the most to eat where the taste differential between the garden and the store is the highest).

Thank goodness for learning from the past — this summer/fall harvest is destined to be quite good despite requiring about 1/2 the effort of prior years.

A Second Facebook Movie?

Paul Ceglia’s allegations regarding his role in the founding of Facebook are grandiose.

The legal response from the Facebook team is similarly fantastic.

No matter how it plays out — it’s shaping up to be a huge fight and will likely make a great story.  I can’t help but wonder if this scenario might find its way to the big screen as well.

Spring Has Sprung

Back in February, I sowed all of the saved seeds, watered them, covered them, placed them on heat mats and hoped for the best.

Sure enough, 5 days later, the magic of germination was in full force.


6 weeks under flourescent light over heat mats with a rotating fan to provide some “wind” and we were rewarded with two trays full of very healthy seedlings. (On a side note, I am not primarily located in California right now, so good friends are graciously acting as my greenhouse and plant stewards between visits.  I suspect that’s why the plants look so great this year.)



Since then, they’ve been transplanted to individual dixie cups and will be ready for distribution to fellow tomato lovers in 2-3 weeks.

So if you have an interest in home-grown tomatoes, let me know.  I will be delivering tomato seedlings to all takers in the San Francisco Bay Area starting April 18th.

Year in Review

Wow!  That was fast.

I”ve been running my own law firm for over a year.  It’s been a blast and I’ve been very fortunate — quite a bit of exciting and interesting work came to my door last year.

Some of the highlights include:

  • Managing a dispute from initial demand letter to arbitration award — on my first day running my own firm, one of my clients received a cease and desist letter which we believed was invalid.  We pitched the case to litigators, hired them, and I was able to act as in-house counsel for the 7 month JAMS arbitration: editing and adding factual clarity to filings, attending all depositions and hearings, and eventually delivering the news after judgment.  In general, this is not my day-to-day practice, but it was very educational and modified my perspective on how contracts should be drafted and disputes relating to contracts should be approached.
  • Acting as on-site in-house technology counsel one day a week — sitting in the legal department of one of my larger clients gave me a very different understanding of the role that attorneys play within an organization.  I supported the third party inputs to software (reviewing both open source and third party proprietary licenses) and the enterprise licensing division and often witnessed first-hand the delicate balance that must be maintained between legal risk and business risk within a corporation.
  • Negotiating against the big guys — it’s part of the typical start-up experience.  Sure, you often negotiate and partner with other start-ups, but at some point, you will need something from one of the big established players.  It may just be Internet connectivity.  Or, large companies may be your sales targets.  Regardless, negotiating against a large company who insists that *we never change our forms*,  *everyone signs this without edits* and *this is completely standard* requires the expertise of someone who has seen many *standard* offerings in the applicable industry.  Over the years, I’ve dealt with Fortune 100 and Fortune 1000 companies in almost every industry, and this year was no exception.  Examples from this year include: Advertising Agencies, Amazon, Barclays, Blue Cross Blue Shield (of America and of various States), Bank of America, Chubb, Credit Suisse, CUNA Mutual Insurance, Discover, DOE Pacific, Earnst and Young, Experian, Facebook, Fidelity, Google, Honeywell, Horace Mann, Humana, JP Morgan Chase, KPMG, Lloyds, Lockheed Martin, Mass Mutual, Microsoft, Morgan Stanley, NBC Universal, Nationwide, PWC, Safeway, Samsung, State Farm, T-Mobile, Toys R US, Viacom, Walmart, and Warner Brothers.
  • Setting up the legal side of the business (forms) — a large portion of my job is limiting the amount of work I do.  I try to get my start-up companies into a position where their internal IP creation departments, online systems, sales forces, and business development teams can function with minimal legal input.  This involves an up-front investment of time to create forms that are correct for their business models.  I talk to my clients and truly understand their businesses before drafting, which avoids the extra legal fees companies often incur when their attorney starts with a square hole for a round peg.  Examples include:  Enterprise license agreements, Software-as-a-Service Agreements, trademark license agreements (branding/endorsement/certification programs), software development agreements, click-throughs (standard terms, privacy policies, API license agreements, payment obligations, revenue share, and more), commission agreements, reseller agreements, professional services agreements, master purchase agreements, NDAs, partner program agreements and technology assignment agreements.
  • Open Source — I went to law school because I was fascinated by the legal rights issues in Open Source Software.  I even wrote an award winning student note on the topic.  This year, I continued my commitment to Open Source legal issues with projects in several areas:  (i) aided a client in cleanly open sourcing a proprietary language they had developed (open source license evaluation and selection, branding issues, IP contribution agreements); (ii) performed open source audits of client codebases with the engineering teams and cleaned up any issues found; (iii) acted as special open source counsel in an Asset Purchase and Leveraged Buy-Out to help the acquirors become comfortable with the state of my clients’ open source uses; (iv) represented (and continue to represent) two clients whose business models are built around open source software projects that they manage (with monetization through professional services, support, maintenance, priority bug fixes, and bespoke development); (v) aided clients in the development of open source policies and approval processes to maintain the codebase in the proper state.
  • Everyday advice, counseling and communications — this catch all category is where the most surprises come.  Sometimes it’s just a phone call asking for a sanity check — Can we do this?  But sometimes there are more exciting issues such as requests from law enforcement, lawsuits that have been filed against clients, high level discussions about IP strategy (should we talk to patent counsel?  Should we file a TM?), letters hinting that lawsuits may be filed, formal letter writing in response to unfortunate situations, termination of contracts, privacy concerns, and much more.

Overall, last year was a great year full of good work, great learning opportunities and wonderful clients.  I can’t wait to see what this year brings.

Slow But Steady Growth

The winter garden (a temperate climate benefit, that doesn’t even exist in many areas) is slow, but steady.  After the work of planting, not much happens for quite a while.  But, finally, there are some lovely signs of life:


All the lettuces and dark leafy greens are doing very well (although I think I’m going to add some slug bait to the beds… too much snacking by the slimy things resulting in holes in my otherwise gorgeously healthy leaves…).


The brassicas are coming along. Most of ’em haven’t done anything impressive yet, but the broccoli is trying:


Much like with a start-up, sometimes, you have to make do with what you’ve got and just launch. So, the first harvest was very green leaf heavy:


But, actually, it worked out perfectly. We had fresh salads with dinner every night for a week, and I put the tat soi in soup and made sarson ka saag paneer with the mustard greens, big heavy unidentified dark green spiky leaves (the ones above the mustard in the bed picture – any ideas?), and some spinach. Over rice with greek yogurt on top? Heavenly!


Getting Ready for the Next Stage

Just like start-ups have to make major changes with each new stage of their development, so do gardens…

While the summer garden is my absolute favorite stage, it had become very clear that the garden was an overgrown disaster that needed to be modified.


So, I made pickles of the last remaining fruit (mainly just green tomatoes and cucumbers).


And did a solid day of clearing.


The next weekend, I finished clearing, turned the beds, amended 4 beds for winter plants and prepped the garlic (per the Garlicmeister’s instructions).


And finally, winter seedlings are in the ground (along with the garlic bulbs), in time to soak up the rains from the latest rainstorm.


Only 2 months until it’s time to start the pepper seeds…

The Sneaky Sleepycat License

Generally, commercial entities are fairly comfortable using open source software in the products they distribute if the license is a the BSD license. Entities other than UC Berkeley often deploy the BSD license in their own name, so it is common to hear people refer to a BSD-style license, or a license that is BSD-esque when referencing the BSD license in another entity’s name.

Oracle Berkeley DB is one of the few open source software products that Oracle sells. It is dually licensed under a commercial license and an open source license. You can use the open source version for free or you can pay to use the commercial version.

A quick glance at the Oracle Berkeley DB open source license looks like a collection of BSD licenses, first from Berkeley, then from Harvard, and then from Oracle.

Visually, it would easily fall into the category of “BSD-style” or “BSD-esque.”

The standard BSD license has a copyright statement, 3 numbered paragraphs, and a big disclaimer of warranties and limitation of liability in all caps at the bottom. At a glance, it’s fairly easy to recognize (partially because it is so short and sweet compared to many open source licenses).

From 2000-2006, the top license in the Berkeley DB license was in the name of Sleepycat, and when Oracle acquired Sleepycat, they modified the copyright statement in the top license to refer to Oracle.

On closer look, the former Sleepycat and current Oracle license is most definitely *not* identical to the standard BSD license. In fact, it is very, very different.

The third paragraph in the standard BSD license states:

  • Neither the name of the [COPYRIGHT HOLDER] nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission.

But, the third paragraph in the Sleepycat/Oracle Berkeley DB license is quite different:

  • Redistributions in any form must be accompanied by information on how to obtain complete source code for the DB software and any accompanying software that uses the DB software. The source code must either be included in the distribution or be available for no more than the cost of distribution plus a nominal fee, and must be freely redistributable under reasonable conditions. For an executable file, complete source code means the source code for all modules it contains. It does not include source code for modules or files that typically accompany the major components of the operating system on which the executable file runs.

Both of these requirements are completely legitimate license conditions.

However, the traditional BSD license is a license that is notable for its lack of copyleft obligations — in other words, you can use software that comes to you via the BSD license without too much concern about it affecting the commercial license terms that you may put on your software that incorporates it.

On, the other hand, the Sleepycat/Oracle Berkeley DB license is an extremely strong copyleft license and requires that you distribute the source code to every piece of code you distribute that utilizes the Berkeley DB.

So, word to the wise, engineering managers and software legal departments: just because it’s a BSD-style license in the visual form, does *NOT* mean it’s BSD-style with respect to software freedom and copyleft.

As much as it’s annoying, someone with a licensing background needs to review and approve every third party in-license if the technology or software is going to be incorporated into a proprietary product or code.