Spring Harvest

I wasn’t particularly scientific or orderly about my spring crops.

It shows:

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Those snow peas?

Gold.

Should have planted more — every two weeks, I harvest fresh peas, peel the strings, chop ’em and put ’em in the fridge in wet paper towels.  They stay fresh and crisp for Thai curry, stir-fry, soup, and whatever else I decide to use them for, for weeks.

Those fava beans?

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Who knew?  The plants grew to be taller than me.  I just harvested my first batch of at least 2 pounds tonight and I’ve got a couple more to come.  I planted them because a) they fix ambient nitrogen into the soil and b) while E thinks they are too much work because they have to be peeled twice, I get nostalgic about Italy when confronted with big, full, ripe, Fava Pods.  The actual food that can be used and gratuitous references to The Silence of the Lambs are a bonus.

The leeks, of course, are always worth it.   But the carrots:

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I should have planted earlier.  Smarter.  Around where the tomato seedlings would be going, perhaps.   Instead, I had to harvest entirely too many tiny carrots to prepare the beds for amending and the addition of the tomato seedlings.  Too much effort for too little food, but I’m much too proud to admit defeat.  So here we are:

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Ahhh… hindsight.  At least the french chefs consider the baby vegetables a delicacy.  It’s so rare that I have the opportunity to cook a delicacy on accident…

For a winter/spring harvest recipe delight making use of the baby carrots: visit Biting Tongue.

Paul Ohm: Anonymization Has Failed

I recently had the privilege of attending a talk where Paul Ohm presented the main ideas behind his latest research paper.

I found his reporting on re-identifying users from supposedly non-personally identifiable information fascinating:

-87.1% of Americans can be uniquely identified by their 5-digit zip code combined with the date, month, and year of their birth.

-80% of anonymized Netflix users could be uniquely identified by 3 movie reviews (movie, date, review value).

His take-home message?

Data can either be useful, or perfectly anonymous, but never both.

The majority of laws and contracts dealing with personal information draw a line between “personally identifiable information” and “non-personally identifiable information” (aka aggregate, anonymous data).

But, if you can use non-personally identifiable information to derive personally identifiable information, then the two categories collapse into one.

It will be interesting to see how advertisers, social networks, governments, and end users respond to reality that the separate categories we’ve built into the laws and contracts may not actually exist.

Flexible Commitment

J.I.T.

On Demand.

The Cloud.

In the garden, this philosophy looks like medium sized tomato plants that have not yet been put into the ground despite a date in April in a temperate region of California. Sure, given how close we are to the bay and our average last frost date, we could have planted our tomatoes. We could be fully committed, and done with the major physical labor of amending the beds and putting in the plants.

But, the recent rains and cold weather have made me quite glad that we exercised some caution. We refrained and waited to plant — so we’ve been taking the plants out into the sun when it’s nice and taking them into the garage to protect them when it’s too cold, or too wet (like today).

As a result of waiting until the last possible moment to be irrevocably committed to the ground and exposure to the elements, we will experience less loss and will have the freedom to optimize where appropriate.

Yet another garden analogy that works for startups.

On Growth

About 7 weeks ago, I sowed the seeds of entirely too many tomatoes.

Some sprouted much earlier than the predicted germination time, and I found myself caring for spindly, tall, weak-stemmed seedlings.

Others died due to my lack of properly allocating resources to water them while I was on vacation.

Today, after hours of potting up over the last couple of weeks, I am left with 362 tomato seedlings in various stages of maturity:

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Tonight, we moved them to the garage to keep them out of the coming storm for the next few days.

If I am lucky, I will end up with at least one healthy plant of each of the varieties that we can plant for ourselves in our garden, and a couple hundred for gifts to friends and acquaintances and distribution to strangers to market Tech Law Garden.

Yet again, gardening shows me that it is an excellent metaphor for technology startups. You have to invest a ton in hopes of future rewards. Even if you think you know what you are doing, there is great attrition. There are unexpected obstacles. And, when things are good, the growth is much faster than you expected, which can be an obstacle to success in and of itself.

Please shoot me an email or give me a call if you’d like a tomato seedling or three.

Non-Competition Agreements

California’s strong public policy against non-competition agreements is one of the reasons why Silicon Valley exists.

In most states, at the time of hiring or during employment, employers can require employees to sign an agreement not to compete with the employer’s business after termination of employment, so long as the agreement is *reasonable.* Each state has a different interpretation of what is *reasonable* but in general, in those states, the agreement must be limited in three ways:

1. The scope of the business that is considered competing,
2. The territory where the employee is not allowed to compete, and
3. The length of time during which the employee may not compete.

In California, however, Business and Professions Code 16600 expressly prohibits employers from requiring employees not to compete with them after their employment has ended, in any way (regardless of how employment may have ended):

Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.

This policy in support of “freedom of movement” of employees is very strong in California. In 1872, just seven years after the abolition of slavery and indentured servitude via the 13th Amendment, the legislature parted with the English common law “rule of reasonableness” standard for non-competition agreements and enacted Civil Codes 1673-75, the precursors to today’s Business and Professions Code 16600-16602.

The courts have applied these statutes and the public policy over the years to show that unless you fall into one of the narrow statutory exceptions (set forth in 16601-16602.5) where a non-competition agreement is acceptable, the contract is void, and, in fact, may be the basis of tort claims against the employer who required you to sign it.

This means that in California, an employee could leave Google and immediately start a software start-up in Mountain View, whereas in Boston, that same Google employee may be subject to a contract that would mean she couldn’t start a software company in the same location for a year, or possibly even longer.

This provision does not give employees permission to utilize their former employer’s trade secrets in their new businesses, of course, but it does give them the freedom to apply their generally applicable skills in a new venture that may be competitive with their former employer.

We can thank the California legislators of 1872 and the judges who have applied this law and the policy in support of each individual’s right to work in his or her chosen profession for helping to create an environment where so many new technology companies can be started and thrive.

Expectations

The rains have brought prolific propagation in the garden.

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The problem being, of course, that many of the big plants that took over in the absence of our discipline are weeds, or overly mature plants with nothing to offer but removal of nutrients from the soil. Sure, many of them are flowering pollinators (yay local bees!), but, if we are honest, they are weeds all the same.

This weekend, we spent much time culling. It was unpleasant and a task we put off for entirely too long, which made it even more difficult than it should have been. But now, after getting rid of the things that had been growing without a plan, we have room to put in the summer plants and enjoy bountiful harvests.

This post, of course, is a metaphor for my start-up companies. I’ll avoid the overly precise analysis, because experience has taught me that this is one of those lessons, whether in the garden, or a seedling company, that must be learned first hand.

Here’s to culling when you need to, new beginnings, and the celebrations of spring!

Open Source Legal Docs?

Ted Wang, with the support of Andreessen Horowitz, recently posted some open source legal document forms for companies seeking seed funding.

It’s an interesting concept, and in the abstract, one that I’ve been thinking about for quite some time.

I think, in general, the open source software movement has changed the game.  Not by devaluing the skills of the individual developers, but by decentralizing the control of the software they write from the few corporations to the many of the masses.

This change has resulted in amazing progress in some areas, and, of course, ridiculous amounts of navel gazing in others.  But, at a high level, what it’s really done is to move the value associated with the software from the centralized control of powerful corporations to the decentralized control of the skilled individuals who contribute the copyrighted works.

And, in doing so, it’s shown that In many contexts, the value of open source software is not in the copyright to the code of a particular project, but rather in the goodwill of the community that is supporting, maintaining, and potentially following the direction of the steward of the code of that project.

By analogy, it’s not like posting documents that are freely available in the legal start-up space is a new move.  The National Venture Capital Association has made its standard forms available for many years.

But, the difference with Series Seed is the stated goal.  The open legal document movement, if it is to succeed where it applies to start up companies, is in desperate need of a dedicated community, and most likely, a community-trusted steward who will take this project on and protect it, preside over disputes, and act as a neutral third party when folks with an interest in the project have different goals.

It should be interesting to see if the Series Seed project moves in this direction and is able to play this role in the seed funding community.

Nature’s Fractals

This winter’s garden includes broccoli, lime-colored cauliflower, onions, leeks, garlic, shallots, arugula, bok choy, tatsoi, mustard greens, spinach, fava beans, and probably a few more I’ve forgotten.

But, by far, the winner of the visual stunner award is the Romanesco (aka “fractal broccoli”).

A perfect baby specimen looks like this:

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And, a less perfect, more adult specimen that literally spiraled out of control, looks like this:

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There is math in nature. Make no mistake about it.

And. Bonus. It’s delicious.

Schools? Google? Who isn’t invading privacy?

Today was an interesting day in privacy lawsuit news.

First, there are the parents of a Pennsylvania high school student who filed a complaint against the school alleging that the school remotely activated a school-issued laptop and took a picture of the child. At home. Without his or their knowledge. And without his or their consent.

Then, there’s the class action lawsuit against Google regarding auto-activation of Buzz and the information that was necessarily shared in connection with that activation. Specifically,


Google turned Gmail “into a social networking service and that’s not what they signed up for, Google imposed that on them without getting their consent,” said Kimberly Nguyen, consumer privacy counsel with EPIC of Washington, D.C. “The bottom line is, users should have meaningful control over their information.”

I’d say these lawsuits show that not everyone agrees with Mark Zuckerberg’s statement that Privacy is no longer a social norm.

All the Administrative IT things…

So, getting ready to run my own law firm is full of all sorts of responsibilities I haven’t had to think about in years:

– MSFT Exchange server on your domain?  Gotta hire someone to manage that.

– Email (and Exchange calendar) synch’ed to the phone?  Gotta figure out how to manage that.

– Bookkeeping?  Yeah.  Turns out, March is really sub-optimal in terms of timing for searching for a qualified CPA…

– Taxes?  See above.  Same issues with the CPA, but more serious concerns about penalties associated with getting it wrong.

– Time Keeping (where not on a project or subscription plan) and Billing?  Ugghhh.  That’s going to be fun…

– And hardware?  My laptop is 7 years old.  But it works fine, and much like my car, I’ll probably just drive it into the ground.  My phone, on the other hand, is an entirely different issue… ‘Droid? HTC? What’s a verizon customer to do?

And yet, despite all of these issues pulling me away from the core business I’m trying to start — I’m excited.  It’s fun and interesting to figure out which offerings in the marketplace make the most sense.  I feel like the research to figure out how to run my own practice makes me more able to relate to my clients that need to run their own technology businesses.