31 posts categorized "May 2012"

"Be kind to your neighbors"

Folks from the Ravenna, Roosevelt and U-District areas of Seattle gathered last night outside Cafe Racer, for our neighbors murdered there yesterday by a gunman. 

Cafe Racer vigilSome stood vigil on the sidewalk on Roosevelt Avenue. More crowded into 59th Street, which lays perpendicular to Roosevelt Avenue, at just the juncture Cafe Racer sits. A band played New Orleans style dirges, and a favorite local Indian restaurant provided free food.

Here's a link to about a minute long recording of some of what the band played. It's really good, really moving.

>>>Cafe Racer Vigil Music<<<

When I got home I saw a tweet from Jon Humbert, a local TV reporter, saying that people at the vigil had gotten hostile toward the press. I didn't see that at all and called him on it. To his credit, he kept engaging my replies until I had to allow, yes, some patrol cars did pull up and officers were engaging in some manner with one guy. So I must have missed that.

The names of those killed were written on Cafe Racer's windows. Also written: the admonition, "be kind to your neighbors."

NDA as Poison Pill

Just catching up to the news of a Delaware court opinion that shows, in yet one more way, how important a confidentiality agreement (or "NDA") can be.

The case involves a hostile tender offer by Martin Marietta Materials, Inc. for control of Vulcan Materials Company. The tender offer was enjoined (stopped) by court order this month, though from googling I can see that perhaps that order has been or may be appealed.


But the instant fascination with the case is how a mutually negotiated confidentiality agreement - one that we're told contained no "standstill" clause or other express prohibition of a hostile tender offer - can be enough to prompt a court to intervene and stop an unwanted bid.

The basic proposition is that Martin Marietta had signed an NDA under which it had agreed not to use the material Vulcan had disclosed to it, except in furtherance of a transaction. (I put that word in italics because we have already gotten to the juncture where exact words can have exacting consequences. Hold that thought.) Martin Marietta then used Vulcan's confidential information to help it formulate a hostile tender offer. The question presented: was Martin Marietta's use of Vulcan's information a use permitted by the NDA, or was it a breach of that NDA?

The court's opinion gives us this telling glimpse into the drafting history of a key section of the NDA:

Screen shot 2012-05-29 at 9.50.11 PMThe wordsmithing makes a real world difference. Had "Transaction" remained defined as "a possible transaction . . . involving" the two companies, Martin Marietta's use of Vulcan's information to plan a unilateral (as opposed to mutually agreed) takeover might well have been a permitted use under the NDA. But "Transaction" was not defined that way; instead, it was narrowed to mean a "business combination . . . between" the parties.

The choice of the preposition, "between," is pivotal. Unlike "involving," which allows that one party may be passive or even uncooperative, "between" implies mutuality.

Bet we'll all look just a bit more closely at that next "boilerplate" confidentiality provision that crosses our screens!

Picture from Wikimedia: Venus at Vulcan's Forge by Frans Floris.

Flickr's Instagram

No question but that there are tradeoffs, in the choice of how to take and where to post your photos.

I see that Blogger has remade itself, offering iterations of flipboard, snaphot, and other popular UI concepts. On the dashboard side, the new Blogger appears to make it easy to pull pictures from othe Google properties, Picasa and Google Plus. If I were using Blogger to blog, that might make Google photo products more compelling.

Toy car on roughed up ravenna blvdMost of the photos I use for blogging I find on Flickr. Flickr is not the easiest application to navigate; it always seems to require 2 or 3 more steps to accomplish something than you think it should. But there is a rich inventory in Flickr tagged with creative commons licenses. And, having learned (learning) the ropes for that purpose, it's more natural to put my own shots on Flickr.

And now I find a useful Flickr app for my android phone.

The Flickr mobile app is not as elegant or intuitive as Instagram. And it's not ubiquitous - it's not available for my iPhone. But the Flickr android app has filters, imitating Instagram (or the prior app Instagram successfully imitated!), and the process of capturing and posting a photo from your phone only takes 1 or 2 more steps (rather than 2 or 3) than it seems it should. Because it's acceptably useful as a substitute for Instagram, in terms of functionality for capturing and posting a picture, it's actually way better than Instagram, for me. That's because it has the added benefit of simultaneously loading my photos into Flickr, the storage service and blogging treasure trove.

Picture: toy car crossing roughed up Ravenna Boulevard, posted with the Flickr app's "Berline" filter.

Time is your competitor

I'm reading Robert Caro's fourth volume of his ongoing biography of Lyndon Johnson.

I haven't read the prior three. What pulled me in to this book was the scene Caro draws to open it: Air Force One, making a vertical climb away from Dallas; Mrs. Kennedy in the back attending the body of her dead husband; and Johnson in the middle of the plane, newly sworn in, ruminating how, some 24 hours before, his request to come down to Dallas with the president on Air Force One had been rebuffed.


That Caro has made the study of Johnson's life half of Cairo's own life's work is a story in and of itself, one told on C-SPAN, radio and in print media.

Caro is good at folding this meta-discussion of his own project, including the race with time as Johnson's contemporaries die off, into the flow of his chronology. It makes the book more readable, not less, the sense that someone who remains your contemporary is doing everything he can, including deploying his own now significant fame and influence, to find truth before all the portals to it close.

I do find it a bit odd, however, that a project as high profile as this one should be in need of copyediting for repetitiveness!

And it's not just the tendency to resituate something that has been said a chapter before, which can indeed aid a reader's comprehension and retention (wasn't this a device used in TV situation comedy in the 60s: the plot development or significant line from just before the break is repeated, albeit in slightly different blocking or from a different camera angle, when the show resumes?). Sometimes you can tell the author has moved a sentence or phrase to another paragraph, but that, in the jumble of marking manuscripts, the verbiage meant to be transposed has been left in both places.

Flaws like these make writing a biography seem less intimidating, however. Put in your time, organize what you have, write it all out. Time is your competitor.

Three Dish Arguments for Why Skipping TV Ads is Okay

A satellite TV provider, Dish Networks, is in a dispute with legacy TV networks over whether Dish is doing something wrong when it sets up Dish subscribers with equipment and software that permits the subscribers to watch time-shifted TV shows free of commercials.

Television showroomThis article on CNN quotes someone at the FOX network as saying that Dish's service "will ultimately destroy the advertising-supported ecosystem." That sounds like a ringing endorsement of Dish to me.

In a race to the courthouse, Dish sued the legacy TV networks first, and I understand the latter may have since filed suits or claims of their own.

Here are three interesting arguments from the very readable, non-legalistic complaint filed by Dish in federal court in New York:

  1. "DISH is required to pay the Major Television Networks hundreds of millions of dollars per year in retransmission fees, collected from its subscriber base, for the right to re-broadcast those signals — even though the Major Television Networks provide their content at no charge to television viewers with an over-the-air antenna." I like this point. It sets up the argument that the legacy TV networks have already monetized the time-shifted content that is re-transmitted by Dish, through the fees Dish has collected from its subscribers and then passed on to the TV networks. The ads, of course, were the "tax" consumers had to pay in order to watch the original broadcasts for "free."
  2. "The commercials are not erased or deleted. They remain on the recording and can be readily viewed at each customer's individual option. The DISH Auto Hop feature does not alter or modify the broadcast signal." These points seem to be preparing for copyright and degradation arguments that the legacy TV networks will make. If subscribers can replay the original broadcast in all of its commercial glory, it's harder to argue that Dish has substituted its judgment for that of the content copyright owners.
  3. "A 30-second skip feature is already standard on many DVR remote controls. . . . The remote controls that come with DVRs supplied by Comcast, an NBC affiliate, can be programmed to include this 30-second skip feature." This is a great argument. There's potential for blowback, here, though; Dish seems keen on also asserting that its service is new and cutting edge, which may help the legacy TV networks argue that something more than industry-standard DVR time-shifting is happening here.

Photo: the Library of Virginia / Flickr.

Crowded crowdfunding industry

Paul Spinrad doesn't post that often to his "Change Crowdfunding Law" blog.

But everytime he does, it feels like you've happened on a clearing in the woods, and you're surprised to be reminded there's a forest for the trees.

The Clearing

Paul's post yesterday quickly diagnosis a problem presented by the overabundance of would be spokes-organizations for the nascent crowdfunding industry. Everyone in this a merging industry should heed what Paul is saying: let's not compete just yet, not before we cooperate to get the industry launched.

That's just one issue the post checks in on. It caught me up on a number of fronts and is rife with links for follow ups.

Photo: Steve Chilton / Flickr.

Twitter Information Sharing and Disclosure

Twitter has recently revised its terms of service and privacy policy again.

I haven't had the time to prepare thorough redlines to surface all of the changes, but I did make a quick peek comparison of a section of Twitter's privacy policy, titled, "Information Sharing and Disclosure." Here's that comparison, 17 May 2012 laid over 23 June 2011:

Screen shot 2012-05-24 at 10.31.14 PM

Twitter's growing up. I like how they are ditching some of the earlier, gratuitous euphemisms (a/k/a, the earnest bullshit) that marks a young company speaking to its self-perception rather than describing reality. The example of that evolution at work here is in how "certain trusted parties" is struck in favor of the matter-of-fact "service providers." It adds credibility.

Not only do changes like that add credibility; they foreground all the more effectively the more surprising changes that mark affirmative decisions to stand by users against the Man. To whit:

"[N]othing in this Privacy Policy is intended to limit any legal defenses or objections that you may have to a third party’s, including a government’s, request to disclose your information."

That sentence is new, it's substantive, it's not expressed in a self-aggrandizing way, and it's meaningful. Twitter is talking after walking, too; I imagine this particular change expresses a policy the company worked out in the course of opposing the New York judge in the recent standing case that Ziff and I blogged about.

Is this (the U.S.) a great country or what? In Europe or elsewhere, I can't help but imagine, a regulator would be involved, and companies wouldn't naturally assume they had the right to change the rules.

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