SLOW Movement

FT: E-mail contract is not worth the kilobytes

E-mail contract is not worth the kilobytes

By Lucy Kellway

Published: June 5 2011 20:47 | Last updated: June 5 2011 20:47

This column may be illegal. In writing it, I am inviting Philips, the Dutch electronics company, to sue me – and I’m rather hoping it will. Then I would be the first person in history taken to court for disobeying the most annoying and most pointless legal paragraph ever drafted.

The contract I’m about to break is the one that sits at the bottom of almost every business e-mail. In simple terms, it says that if the e-mail isn’t addressed to you, you must delete it at once, notify the sender and not tell a soul. I’m not the first to ignore such a command, indeed it is flouted hundreds of thousands of times every hour – almost every time that anyone forwards anything at work.

The other day I received a message that was most definitely not intended for me, but was passed on by a reader who thought I might like it. It was written by Frans van Houten, the new chief executive of Philips and sent to all his 100,000 employees to tell them about a management initiative.

“We agreed a new set of values ... as they are better suited to unlock our full potential in a fast moving world,” he said. He explained that these new values “would replace the 4 D’s” – which turn out to be such dismal, dull, derivative and depressing things as “Delight customers” and “Develop people”.

He quoted Gandhi (who surely would never have uttered the words “Be the Change”, had he known just how many scores of dodgy management initiatives would be launched on the strength of them). He finished by inviting underlings to go with him on a “journey” named Accelerate! “We have asked the 200 leaders ... to own and drive Accelerate! ... Please join me and Accelerate! to win together.”

Immediately below this stirring sign-off came the normal disclaimer. It said the message was confidential, and “intended solely for the addressee(s). If you are not the intended recipient, you are hereby notified that any use, forwarding, dissemination, or reproduction of this message is strictly prohibited ... please contact the sender by return e-mail and destroy all copies of the original message.”

Rather than do as instructed, I have decided to follow the common law of the internet. This decrees that whenever you get a crass message, you must forward it to everyone in your address book, or post it on your blog, or, if you are fortunate to have such a thing, write about it in your newspaper column.

In so doing, I am at least notifying the sender, though maybe not in the way his disclaimer intended. My justification for passing the e-mail on is that the world needs to know when public companies are indulging in flabby management nonsense. I think it’s fair to bet that Accelerate! – despite the additional oomph that comes from the exclamation point – is not going to “unlock full potential” in any world, fast-moving or not.

Of course, Philips could now see me in court. If it does, I don’t think it’s going to win. I’ve consulted some experts who assure me that in European law it’s pretty much impossible to foist this sort of contract on someone unilaterally. Legal disclaimers on e-mails are not only unenforced but unenforceable – making one wonder why they are so popular. The only plausible explanation is that companies use them simply because others do; no one dares be odd one out.

Last week I got a short e-mail from someone who works at the French bank BNP Paribas with a long disclaimer that made the Philips one look restrained.

It started off by doing some legal defining of terms, explaining that message will hitherto be denoted by “message”. Having done this in English, it went on to do it in French as well.

Finally, after a whole series of heavy warnings given in both languages, it bossily instructs the recipients: “Please consider the environment before printing.”

This is a damned cheek. Anyone who elects to print out this e-mail (a decision is surely up to the recipient, not to the sender) is thus forced to waste a lot of additional ink and paper as these paragraphs are automatically and needlessly reproduced in hard copy.

I’m happy to report that e-mails sent from the FT system are neither bossy nor threatening, and come in just one language. Every e-mail finishes thus: “This e-mail was sent by a company owned by Pearson plc ... Registered in England and Wales with company number 53723”.

This is good for being brief, though less good for containing a numerical fact that I bet no one who has ever received an e-mail from me has ever found even slightly diverting. There is a way of making this automatic sign-off better and briefer still: do without it altogether.

lucy.kellaway@ft.com

Copyright The Financial Times Limited 2011.

ST: The time is ripe for adopting lemon law

Prime News

Home > Prime News > Story

Jan 17, 2011

The time is ripe for adopting lemon law

Proposed law regarding defective goods could raise retail standards

By Jessica Lim

 

JUST a week after paying $2,150 for a wooden bed frame, Madam Radia Matom was dismayed to find long cracks appearing on it. She made more than 10 calls to the retailer at Harbourfront Centre, but got no satisfaction.

A year-long battle ensued, with five mediation sessions at the Consumers Association of Singapore (Case) and two trips to the Small Claims Tribunal.

Finally, the 50-year-old housewife was offered a partial refund of $1,000. She considered rejecting the offer and suing the retailer in court for a full refund, but was uncertain if she would succeed.

If a proposed law is passed here, success is certain for cases such as hers. But reactions to the proposed law have been mixed.

A taskforce headed by the Ministry of Trade and Industry and Case is revising the Consumer Protection (Fair Trading) Act and Hire Purchase Act, which together empower consumers to seek civil remedies for a wide range of unfair practices, from aggressive sales tactics to false claims.

Late last month, it proposed changes that will allow the courts to compel a retailer to repair, exchange or offer refunds for a good that is found to be defective within six months of purchase. Views are being sought on the changes till Jan 31.

Already, some small retailers are dreading the proposed 'lemon' law, named after the colloquial reference to a defective product as a 'lemon'. Consumers, on the other hand, are happy.

In fact, both retailers' despair and consumers' elation are unfounded. The law will not make things onerous for retailers. But neither will it provide a great deal of protection for consumers in its proposed form. But it is still a welcome step forward on the journey towards greater consumer protection.

Why do I say this?

First, it is timely. The consumer watchdog received 1,785 complaints about defective goods in the first 11 months of last year, compared with 1,877 in 2009 and 2,224 in 2008. In all three years, complaints about mobile phones, furniture and electronic products were most common.

Second, retailers' concerns are, frankly, unwarranted. Several shopkeepers told The Straits Times that they fear consumers taking advantage of lemon laws by returning goods that are used or damaged through wear and tear.

Petty customers, they feel, would demand refunds on a whim. It would make it easy for people to buy something - such as a prom dress or a Christmas tree - use it for a few weeks, and then demand compensation. Others may return a product simply because they have grown to dislike its colour or design, they argue.

Such fears exaggerate the impact of the proposed law, which after all kicks in only when a dispute makes it to court.

On the shop floor, retailers are not forced to give in to requests for repairs, refunds or exchanges. But if a consumer proceeds to sue in court, and wins, the retailer can be ordered to replace, exchange or give a refund for the product.

Right now, with no proper lemon law, the outcome of a case depends on the judge's discretion. The retailer can also deny responsibility and blame the distributor, the importer or the manufacturer for the defect.

Consumers will thus have more recourse with defective goods. But the law as proposed will have a narrow ambit - deliberately so.

This is a key feature of the law that merits attention: The cases affected are likely to be confined to big-ticket lemons purchased by consumers who will go the distance to seek redress.

With a limited law in place, the question may arise as to whether this law is worth putting in place at all.

The answer is clearly 'yes'.

As the experience of other countries suggests, a simple lemon law can be the start for more thorough legislation later covering different products.

This is the case in the United States, where specific lemon laws - first created there in 1982 - exist for vehicles, computers and even pets.

In California, for instance, retailers who deal in sick dogs can be fined up to US$10,000 (S$13,000) or put out of business for a period of time.

Singapore's proposed law follows the British version, which is a blanket law covering many products, said Case chief executive Seah Seng Choon. He explained that complaints are received for a wide range of products. The law could be amended in future to target specific industries if needed.

A lemon law will also enhance Singapore's image as a shoppers' haven. Singapore Tourism Board figures show that tourists spent $3.15 billion from January to September last year on shopping, up 30 per cent from 2009's $2.42 billion.

Most important of all, the law will have the salutary effect of spurring the entire industry to improve service standards in the long run.

The use of lemon laws in the US and Britain has encouraged retailers to come up with their own policies on refunds and exchanges, and to publicise them.

This way, they avoid the risk of lengthy lawsuits or damage to their reputations from irate customers. In fact, the wish to avoid risky transactions also encourages retailers to go for reputable product sources.

The law could thus spark a sea change in the retail scene here. Few retailers here, apart from the big boys like Courts and Robinsons, now have a refund policy.

Others may offer exchanges, but on a purely case-by-case basis, leaving consumers vulnerable while the retailer decides at whim.

In short, the lemon law, though limited, has the potential to change the retail scene far beyond the courtroom.

limjess@sph.com.sg

FT: The role of remorse in court convictions

The role of remorse in court convictions

By Julia Apostle

Published: July 31 2010 00:16 | Last updated: July 31 2010 00:16

Conrad Black – Crime: Fraud; Sentence: Six-and-a-half years; Date: 2007; Despite what the trial judge called his “stunning lack of remorse”, a Chicago court released Black on bail last week

The missing passport helped. when Conrad Black was granted bail by a Chicago court two weeks ago, the fact that he lacked the papers to leave the US for his native Canada may have boosted his case; it might even have had Americans warming to him. It’s hard to reconcile the image of a man with nothing but the ID card issued to him by the Federal Bureau of Prisons with that of the defiant and widely reviled high-flying media tycoon who in 2007 was convicted of defrauding investors in his companies out of millions of dollars.

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Throughout his 2007 trial, Lord Black was much criticised for the way he vociferously asserted his innocence. Following his conviction, prosecutors requested the harshest sentence available – imprisonment for 24-30 years – in part, they claimed, because his media interviews indicated a “stunning lack of remorse”. “Out of all the defendants,” they argued, “Black has been the most vocal in his lack of remorse and his refusal to recognise the offence … [and this] makes clear that he would engage in the very same conduct again if given the opportunity.”

Black was given a six-and-a-half year sentence, but the focus on his remorse puts him on a similar footing not just to other convicted criminals such as Bernard Madoff and Enron’s Jeffrey Skilling, but to a parade of Wall Street bankers, corporate chief executives and even central bankers who have been hauled before government panels, if not judge and jury, over the past few years. In the wake of the credit crunch and global ­recession, the world wants contrition – and it had better be sincere.

. . .

Robert Bierenbaum - Crime: Murder; Sentence: 20 years to life; Date: 2000; Having maintained his innocence throughout his trial, Bierenbaum was told he was cold-blooded

In the Puritan colonies of 18th-century America, public hangings were accompanied by an execution sermon, delivered by a minister who would call on the offender to repent. The repentance, if it came, had no impact on the individual’s certain fate, but was expected primarily for religious reasons and to deter the public from a life of sin and crime. Today that desire, with its religious origins, has become ingrained in justice systems around the world, including Britain’s, but most especially in the US.

In the autumn of 2000, Robert Bierenbaum sat motionless and silent at his trial for the murder of his wife, Gail Katz-Bierenbaum. She had disappeared from the couple’s New York apartment in the summer of 1985, though no body has ever been recovered. With no physical evidence pointing to the accused – an affluent, well-respected plastic surgeon – the case had seemed an uphill battle for prosecutors; but in 2000, Bierenbaum was convicted of murder. Now, at his sentencing, Bierenbaum faced a conundrum: he had maintained his innocence at trial, but in doing so, had shut down the possibility of demonstrating any remorse. “I can only look at the defendant’s cold-blooded behaviour after the fact,” the judge said. “He is not rehabilitated – which means accepting, admitting and expressing remorse. Only then can one expiate guilt.” Instead of the minimum sentence sought by his lawyers, Bierenbaum was imprisoned for 20 years to life.

Bierenbaum’s trial judge was not unique. In the late 1990s, a US group called the Capital Jury Project (CJP) interviewed close to 1,200 people who had served as jurors in death penalty cases, and found that a vast majority of those who had voted in favour of execution said the defendant’s lack of remorse was one of the most important factors in his or her decision. Law professor Scott Sundby of Washington and Lee University, who headed the California portion of the study, says: “Time and time again they would say, ‘Gee, if the defendant had only shown the slightest bit of remorse, we would never have given him the death penalty.’”

Pleading not guilty in a criminal trial can be fraught with risk, then: judges and jurors are more likely to hand down tougher sentences if the offender fails to show remorse, even if they have maintained their innocence. William Bowers, director of the CJP, points out that in a case involving the death penalty, if a defendant maintains his innocence, he has lost his strongest mitigating factor for a life sentence. “To pursue a not guilty verdict and failing means almost certain death.” This amounts to what Sundby calls a “classic damned if you do, damned if you don’t scenario”.

Jeffrey Skilling - Crime: Fraud; Sentence: 24 years; Date: 2006; The Enron CEO expressed remorse for the company’s behaviour, but pleaded personal innocence – to no avail

Even in cases where criminals have admitted guilt, remorse still plays a role in sentencing. Andy Fastow, Enron’s chief financial officer at the time of its collapse, pleaded guilty in a plea-bargain with prosecutors and received six years in prison. Jeffrey Skilling, the energy group’s chief executive, faced fewer charges; he pleaded innocent but attempted to demonstrate remorse for the failure of his company (“remorse without wrongdoing”, as he put it during his 2006 trial). The judge appeared unconvinced: he was sentenced to a maximum of 24 years in prison.

It was in the late 19th century, with the move from fixed to indeterminate sentencing, that criminal defendants began to use remorse as a form of currency within the justice system. According to Bryan Ward, a law professor at Ohio Northern University, “legislatures and courts began to view the purpose of punishment to be reforming the offender rather than merely locking them away”. As judges became responsible for setting minimum and maximum prison terms, remorse became a preferred indicator of an offender’s potential for rehabilitation – although more than a century later, no link between remorse and rehabilitation has ever been established.

What does that missing link say about society’s current craving for remorse from its white-collar criminals – or, more tellingly perhaps, from leaders whose companies or institutions may have made mistakes that lead to economic or environmental turmoil? Do apologies for the banking crisis, made by the former heads of UK banks before the Treasury Select Committee, mean that the banks will never make mistakes again? Did Tony Hayward’s perceived failure to express real contrition before a similar committee mean BP will fail to address the safety measures that led to the recent disaster in the Gulf? The answer to both questions must be “no”.

Remorse itself is a slippery concept to pin down, of course. The question as to whether someone genuinely feels regret and contrition is a highly subjective one. The most remorseful of defendants may not be skilled at articulating their emotions, for instance; or they may feel remorse but find it undignified to talk about the fact; or they may, as many speculated was the case with Tony Hayward, run up against cultural barriers and misunderstandings. Race, age and background can also have profound effects on self-presentation.

Richard Nygaard, a US appeals judge based in Pennsylvania, spent eight years on the bench overseeing criminal trials. The accused were often young black men who appeared sullen and arrogant. “I’d think: ‘Who are you, to look on this court in this way?’” he recalls. But he later realised that these were often instances of a “person trying desperately to maintain his own dignity, his ‘personhood’, perhaps willing to risk the wrath of the court to maintain it”. According to the CJP’s review of 74 capital cases involving a black defendant and a white victim, black jurors were more likely to believe that a black defendant was remorseful and white jurors were more likely to say that a black defendant had “not even pretended” to be sorry.

According to John Harding, former chief probation officer of the Inner London Probation Service (now the London Probation Area), a demonstration of remorse at trial can often depend on the defendant’s mental state. In the UK, most murders are committed by youths under 21 years old and, he says, “remorse is not necessarily an emotion that is very evolved with these individuals”.

Amanda Knox - Crime: Murder; Sentence: 26 years; Date: 2009; After her arrest, Knox performed cartwheels in the police station – behaviour the media seized upon as being far from contrite

This might help explain the much commented-upon behaviour of Amanda Knox, the young American student convicted by an Italian court last year of murdering her roommate, Meredith Kercher, in 2007, when Knox was 20 years old. Knox was widely criticised for her lack of remorse, a lack that was proven – so the argument goes – by her performing cartwheels at the police station after being brought in for questioning. Although Knox maintained her innocence at trial, her failure to appear sufficiently contrite was frequently cited. Prosecutors have now filed an appeal against the 26-year jail term she received, arguing it is too lenient, reportedly in part because she showed no remorse.

White-collar criminals present a whole host of other problems. Scott Greenfield, the lawyer who defended Robert Bierenbaum, says that these offenders are often the most difficult to defend because, for so-called masters of the universe, expressing emotions such as remorse means losing “the last vestige of dignity they have control over”.

And Richard Weisman, a sociologist at York University in Toronto, says that in his research of different legal systems, he frequently encountered the view that “remorse is weakness”. Expecting a defendant to show remorse, he says, amounts to “a ritual of humiliation”.

Of course, there may be crimes so violent or vicious that remorse shown by the defendant has little or no impact on punishment: recent research by the CJP reveals that this is the only situation in which remorse has little effect on a jury’s decision to vote for a death sentence.

Bernard Madoff - Crime: Fraud; Sentence: 150 years; Date: 2009; Madoff expressed contrition at his trial, but the sheer number of letters his victims sent the judge meant his remorse went unheard

In the context of white-collar crime, Bernard Madoff’s $65bn Ponzi fraud might be an equivalent. Despite Madoff’s expressions of regret and remorse he received a 150-year prison sentence – a sentence whose duration was in part influenced by the extraordinary volume of letters and e-mails that Madoff’s victims sent the judge.

In Britain, even though the Sentencing Guidelines recognise defendant remorse as a potential mitigating factor, individuals working within the system say that it receives relatively little emphasis in trials. A study published in June last year for the Sentencing Advisory Panel found that more people think a defendant’s remorse should never result in greater leniency than think it always should.

It is at the probation stage that an offender’s remorse becomes more important. Prisoners can participate in a number of programmes in jail – such as anger management and drug addiction treatment – aimed at getting them to think about what they have done, why, and the impact of their actions on their victims.

John Harding believes that once a prisoner has been through this ­process, a demonstration of remorse at a parole hearing or at any point during incarceration is a “strong predictor” of a prisoner’s ability to reintegrate into society. A prisoner who maintains his innocence while serving his sentence, and who does not demonstrate remorse, is probably going to spend more time in jail. “Remorse,” says Harding, “is a key trigger to change.”

. . .

If legal practitioners recognise that concentrating on wrong-doers’ remorse is problematic, why is society fixated on it? The Financial Services Authority has started citing an individual’s remorse in enforcement notices. Prior to 2009, the concept rarely came up. And that mirrors the bigger picture – of a society eager not just for inquiries and investigations following bankruptcies, oil spills and economic meltdowns, but for public contrition on the part of the people responsible.

“The law mirrors what goes on in more informal social groups and remorse is part of all relationships across a multitude of situations,” according to Weisman. “Emotions are not just individual. They are closely monitored by society. If we don’t show remorse, we are [seen as] ­betraying the community.”

But just as some people in the world of criminal justice are pushing for less emphasis on remorse, perhaps political and social leaders should, too. Less attention spent on whether the Conrad Blacks and Tony ­Haywards of the world feel remorse might help us focus on developing meaningful safeguards against the next fraudulent – or merely foolish – debacle. In other words, it may be time for society to insist on a change: for its most powerful citizens to stop asking for forgiveness – and to start asking permission.

Julia Apostle is the FT’s senior legal counsel

Copyright The Financial Times Limited 2010.

FT: An advocate for China's rural poor

Sometimes the law is very malleable.

===

An advocate for China’s rural poor

By Tom Mitchell

Published: November 6 2009 23:31 | Last updated: November 6 2009 23:31

Prison was hard for Liu Yao. The crusading Chinese lawyer spent 16 months behind bars at a county lock-up in Heyuan, a city in the southern Guangdong province, ­surviving mainly on a diet of instant noodles and preserved bean curd. His days were spent making plastic bags. His pens and law books were taken away, he says, and he was denied access to newspapers and his case file. When he was freed in April this year his dark hair, which had been shaved off, grew back white.

Liu, 47, was first detained by the authorities on December 19 2007, two days after he led farmers from Bainitang hamlet to the disputed construction site of the Lankou hydropower station, which was being built on their land. In the confrontation, wooden boards and other construction materials valued at Rmb50,615 (£4,500) were allegedly destroyed or stolen. The farmers’ lawyer was ­formally arrested a month later, accused of inciting unrest. In June 2008 a county court sentenced him to four years in prison.

Liu’s family and colleagues suspected that he had been prosecuted simply for doing his job. “In the course of doing his legal work, he was charged, arrested and convicted,” Liu’s wife, Lai Wei’e, would later tell me. Liu’s sentence was equivalent to a year in jail for each Rmb12,650 in alleged damage. “It’s ridiculous. How can a few boards be worth Rmb50,000?” said Lai’s brother-in-law, Huang Yuhui. “The important question is, ‘Was anyone hurt?’” To which the answer was no, he said.

The case sparked action by lawyers’ associations in Shenzhen, the special economic zone bordering Hong Kong, and in Beijing. “The Shenzhen Lawyers Association is like a father, and its lawyers are like brothers and sisters,” said Lai. The lawyers’ campaign also distinguished the controversy surrounding the Lankou hydropower station from the myriad land disputes that arise regularly across rural China, since it united assertive legal professionals and aggrieved farmers under the same banner.

. . .

Liu personified this unlikely class solidarity. He was born into a humble family in 1962 and raised in Paitou village – of which Bainitang hamlet is part – yet rose to become a member of China’s prosperous professional classes. It is a leap that few rural children make. A partner in Liu’s firm, Zou Zongcheng, says: “I have known Liu Yao for six years. He is the son of farmers. He understands the importance of land and knows how to eat bitterness. He never took any money from those villagers.”

Liu started out as an artist. He specialised in reproducing famous oil paintings – a cottage industry in China – but became interested in the law after his brother was injured in a knife attack. The culprits were never caught; nor were his brother’s medical fees compensated. “I filed a lawsuit on my brother’s behalf because local lawyers wouldn’t accept the case and lawyers in Guangzhou [the provincial capital] were too expensive,” Liu says. “I bought some law books and began to teach myself… I began to help other people file lawsuits.”

In 1989, at the age of 27, Liu started to teach himself law in earnest. He also had his first brush with the authorities, who detained him for three months after he urged local farmers not to pay what he argued were excessive taxes. After his release, he moved to a nearby town, Huidong, and began a legal apprenticeship. “I had to get special approval to take the law exam because I didn’t have the necessary degree – I was just a peasant,” he says. “I passed the exam in 2003 and became a registered lawyer. I got into trouble again for helping peasants in Huidong when local governments seized their lands. That’s how I ended up in Shenzhen.”

When the villagers of Bainitang approached Liu for help in 2006, their case was a routine one in the context of China’s rapidly changing countryside. As costs increased in Shenzhen and other ­cities across the Pearl River Delta, where south China’s manufacturing industries have traditionally been concentrated, export factories migrated to cheaper sites inland such as Heyuan on the banks of the East River. Heyuan was happy to receive the factories, setting up development zones and recruiting migrant labour. To meet the new demand for power the city turned to its natural resources, placing officials and their hydropower project on a collision course with the villagers of Bainitang. The authorities had not counted on an opponent of Liu’s tenacity.

Liu took the case on the understanding that his firm would be paid 20 per cent of any settlement. After a collective agreement to pay Rmb1.8m (£160,000) fell through, and some of those affected accepted smaller individual offers, Liu led villagers to the construction site on December 11 2007 and again on December 17, when the fateful clash occurred.

“There was some property damage,” Liu admits. “One witness, a minor, said 50 boards were destroyed and another said all of them were. But police photos showed many boards were not destroyed and [the second witness] is an employee of [the dam’s developer]. I believe the minor’s testimony was coached by the police ... An appraisal document appeared belatedly during the trial and was introduced as ‘supplemental evidence’. I call it false evidence and a violation of legal procedure. The verdict was also incorrect because it didn’t mention that the land had been appropriated illegally.”

When the Heyuan Intermediate People’s Court decided to deal with Liu’s appeal through written submissions rather than in open session, 36 lawyers from more than 10 provinces and cities signed a petition on his behalf. Lawyers’ associations in Shenzhen, where Liu worked for the Guangdong Wisdom & Fortune Law Firm, and Beijing also sprang into action. On the evening of August 3 2008, two lawyers, Li Fangping and Xie Yanyi, flew from Beijing to petition the Heyuan court. A hearing was set for the following month.

. . .

A day before the appeal, the committee to save Liu Yao assembled outside the offices of the Shenzhen Lawyers Association, preparing to descend on a hostile court in a rural backwater. I joined the caravan of big-city lawyers for the two-hour car journey, alongside Lai, Liu’s wife, and her brother-in-law – even though Liu’s two defence attorneys, Meng Xi and Li Fangping, were nervous about my presence.

“The lawyers wouldn’t come if they didn’t think my husband had a case,” said Lai as we took the road to Heyuan. “There are problems with the evidence. The case also has implications for other lawyers, who are worried about the precedent it has set.”

Her spirits were picking up, even though a local journalist who had promised to come along had cancelled at the last minute.

The next morning, Liu and two villagers were led into a room at the Heyuan Intermediate People’s Court. Liu, or Prisoner No 14, had a hint of a moustache and appeared to be shirtless beneath a bright orange jail vest. With his shaved head he looked more like a village tough than a lawyer. Li Fangping complained that his client had been brought to court in such a state. Liu and villager Li Zhiguang, who wore a black and blue-striped shirt under his prison garb, were led into the courtroom in handcuffs. The other villager, Li Dongming, wore civilian clothes – his nine-month ­sentence had recently ended.

Three judges sat opposite Liu. The lead judge looked the part – lidded eyes and a mouth that set naturally in a frown. Lai sat on her own at the back of the small courtroom, which was packed with about 25 policemen and observers. She exchanged only the occasional nod with her husband. Under Chinese court procedures, families do not receive visitation rights if a case is still at the appeal stage. Lai had not had a proper conversation with her husband in months. The situation had been hard on their eight-year-old daughter, she said. “She knows what has happened but there is lots I don’t tell her. I encourage her to study.”

Liu outlined the grounds for his appeal, which centred on evidentiary procedure. He and his lawyers also contended that the hydropower station was built without proper land-conversion approvals, which are necessary before agricultural land can be expropriated for industrial use. If the dam was an illegal construction, they argued, then Liu and his farmer ­clients should not be prosecuted for opposing its construction.

“My mother and father were peasants. I was a peasant,” Liu told the court, gesturing with his now uncuffed hands. “Like the villagers of ­Bainitang, we relied on our own hard work.

“We have to protect our land,” he continued, his voice rising. “There is no other option.” Behind Liu his colleagues leaned forward, listening intently. “I led them to the construction site to support them, not destroy things. Are people without money not entitled to a livelihood? Does the country not have laws?”

After four hours of often heated exchanges the appeal hearing ended with fireworks. The lead judge interrupted Liu, telling him to wrap up his final remarks. This provoked an objection from Meng Xi, who demanded another opportunity to speak. When this was denied he and the judge, banging his gavel, started a shouting match. Liu joined in, along with his sympathisers in the gallery. As police and the defendants’ supporters leapt to their feet, Liu and Li Zhiguang were handcuffed and taken away. There was no violence but the courtroom seethed.

. . .

Such bad-tempered exchanges between prosecution and defence highlight an important point about crime and punishment in China. Judges are often poorly trained, and verdicts in politically sensitive cases frequently preordained. But there is a system and its forms are adhered to. From a cynical perspective, this facilitates show trials that enable the government to argue that justice has been done, even when people are jailed for exercising rights enshrined in the country’s constitution.

More optimistically, a trial – no matter how flawed – is clearly preferable to the lawless violence of the cultural revolution and also China’s shadowy laogai, or “reform through labour”, system, which allows police to banish suspects to work camps without a court appearance. The country’s extensive courts system also reinforces the public’s awareness of its legal rights, especially relating to property in affluent urban areas and land in the countryside. And most importantly, a growing network of increasingly assertive lawyers such as Meng Xi and Li Fangping are prepared to use the system, its imperfections notwithstanding, to hold government officials and departments to account.

After the appeal, Liu’s lawyers and their colleagues dissected the morning at a nearby restaurant. “What do we do next? I want to hear your opinions,” Meng said, before offering a few ideas of his own, including a proposal that an objective observer who was present at the appeal should post a summary on the Shenzhen Lawyers Association website.

“This case won’t be decided in Heyuan,” added Li. “There are three regions involved now – Heyuan, Shenzhen and Beijing.” As the lawyers rattled on, Liu’s wife, Lai, sat quietly on the sidelines. At other times she was a whirlwind of activity – organising hotel accommodation and ordering food for the legal team – and remained generally upbeat. But occasionally the emotional strain showed.

Provoking a row with the judge had struck me as a dubious tactic. Yet just three days after Liu’s appeal hearing ended in a shouting match, the Heyuan Intermediate People’s Court ordered the county court to retry the case. The decision seemed to validate the defence’s assertion that the evidence was flawed. And with no new evidence admissible for the retrial, prospects for the lawyer’s release were looking up.

The retrial took place on October 17 and the verdict was handed down two months later, on December 22. It appeared a classic face-saving compromise. The court upheld the earlier guilty verdict, but reduced Liu’s sentence from four years to two. “We are very disappointed with this verdict – Liu Yao will appeal,” Lai said afterwards. “We failed,” added lawyer Meng Xi. “Liu Yao has been given two years’ prison for the same charge. I cannot comment on the judge’s decision but I think this is a very strange case.”

. . .

In March, I visited Bainitang to meet the villager I had last seen in prison vest and handcuffs at Liu Yao’s appeal hearing; Li Zhiguang’s 10-month sentence was almost up at that point. He had been the head of the hamlet at the time of the protest that led to his, Liu Yao and Li Dongming’s imprisonment. It was the second time I had travelled to Bainitang. On my first visit, the final stretch of road to the hamlet was a muddy track that my driver from Heyuan struggled to navigate. Six months later it had become a proper concrete surface. Though no wider than an average suburban American driveway, it represented a leap forward for the hamlet.

Bainitang’s homes were grouped together in a classic defensive cluster. To the west of the village lay fields, river and a mountain range. But for the controversial hydropower station and an expressway on the river’s far bank, it would have been a rural idyll.

Li and I walked to the dam at the centre of the dispute. “That land is mine,” he said, pointing to what had once been a wooded hill at the edge of the East River. Much of the hill was still there. But its riverside slope had been sheared off to make way for the dam and shotcreted for stability. The exposed orange soil, partially patched over with concrete, resembled a poorly bandaged wound. Below, a solitary excavator laboured beside the dam. A small hollow nearby, where villagers used to farm peanuts, was now a dumping ground for earth dug up during construction.

This is where Liu Yao and 30 villagers had assembled to demand a halt to the development. “We told them not to start construction until we had cleared up the matter,” Li said, looking out over the dam. “They said we were being too impulsive and told us to protest through legal channels. But what good is that when the government is the law?”

Having completed his survey of the alleged crime scene, we returned to Li’s home – a red brick and concrete shell with four floors, including the flat roof. There was no toilet, no banister on the stairs and windows were yet to be installed on the upper floors. Mosquito nets protected the beds of the farmer, his wife, Li Youfa, and their two children. His daughter ­Donghua, 13, and son Dongfei, 12, had chalked some basic maths on an outside wall: “2 + 2 = 4, 4 + 4 = 8” and then, less predictably, “1 + 1000 = 1001”.

For all its flaws, the structure was still an improvement on the mud-brick and tile-roof homes where Li’s father and grandfather lived, and which are now wood stores. “Our family moved here during the Ming dynasty [1368-1644],” he said, reeling off his lineage.

“My grandfather was Kuomintang dynasty,” he added, referring to the Nationalist party that ruled most of mainland China from 1928 to its defeat by the communists in 1949. “My father and I are Chinese Communist party dynasty. Life was the same for all of us. We all tilled the land.” In the main ground floor living area, with only two small bulbs for illumination, was a television and a small dining table. This was also where Li parked his motorcycle. On the wall were clashing symbols: a Christian cross – “My wife believes,” Li said – and a poster of Mao Zedong and his marshals. “Of course Mao was good,” he added when asked about the poster. “Without him we never would have had land. Land is money.”

He disappeared into his bedroom and returned with two precious ­plastic bags of documents. One contained his land title, valid from 1999 to 2029. From another he produced documents relating to his trial. These included a letter, dated December 1, 2006, confirming his appointment as head of the hamlet; another, dated September 5, 2007, confirming Liu’s appointment as the villagers’ lawyer; and a handwritten copy of an appeal written by Liu on December 25, 2008. “It was no use for me to appeal,” Li said. “I don’t understand the law. There was nothing I could do but depend on the lawyers. I have no money or power. None of my relatives are government officials.” He also produced a letter of his own, written in court, and ­muttered an apology – “I write badly” – before reading it aloud:

“I am Li Zhiguang, a peasant and native of Dongyuan county, with a primary school education … In May 2006 I took some compensation for my land. My government said that as leader of the hamlet, I should be a good model and give up my land first. A villager named Li Jianxin asked why I agreed to let my land be requisitioned. He and the other villagers didn’t go along with the requisition plan, blocked the roads and said I should step down from my position as village leader.

“I agreed to resign. However, later they hired a lawyer and asked me to stay on. A village must have a leader and it was too late to elect another. So I helped organise the lawsuit, the petitions and other things.”

As Li spoke, Donghua and Dongfei squabbled good-humouredly over the seat in front of the television. They were also excited about having their pictures taken. It was a much happier home than the first time I visited, when their father was in prison. The fact that Li accepted Rmb20,000 (£1,800) for some, but not all, of his expropriated land does not exonerate the local government, especially if it was not properly reclassified. Nor does it have any bearing on the concerns about Liu’s conviction. It does highlight, however, how difficult it can be for villagers – in China and elsewhere – to maintain a united front in the face of concerted government pressure.

. . .

A week after talking to Li, I caught up with Liu’s wife. She was distressed. “They are monitoring my home and phone – I don’t feel free,” Lai Wei’e said when we met in a hotel lobby in downtown Shenzhen. I hadn’t recognised her at first – her hair was not pulled back, as before, and seemed almost to hide her face. She also wore large pink-framed glasses, even though it was cloudy. We went to a nearby park to talk.

It was then a year and three months since her husband had been swallowed up by China’s penal system. Lai also gave me a bitter statement ­written by her husband. “County prosecutors betrayed the truth and the law … In order to prove that the hydropower station was a legal construction, they provided totally unrelated and laughable evidence. Only a stupid judge could accept it.” The county and township officials involved declined my repeated requests to discuss the case.

Liu was similarly scathing about the official valuations of the construction materials allegedly destroyed: “Only an idiot could believe them.”

“As a lawyer appointed by the villagers, I led them to the construction site to stop an illegal construction,” Mr Liu’s statement concluded. “There was some damage but it didn’t exceed the boundaries of legitimate self-defence. In helping the villagers defend their land, I did not endanger society. I am not a criminal and the judge shouldn’t find me guilty on the basis of false and illegal valuation documents. To do so would be an injustice and profane the law.”

Lai’s wish came true. Her husband was granted his second appeal hearing on April 10. Six days later, Heyuan Intermediate People’s Court announced its decision to shorten the lawyer’s sentence to 18 months and suspend the two months he technically still had to serve. It was not the complete exoneration Liu and his wife had hoped for – the conviction still stands and he was given two years’ probation. But after 16 months behind bars he was free and could see his family again – and visit a hairdresser to have his now white hair dyed black.

Liu says he will continue to appeal against the verdict. He complains that, as a convicted felon, he can no longer practise as a lawyer. “I’m unemployed now and can’t take cases,” he says. “It’s ridiculous. In trying to stop a crime I was branded a criminal. Sometimes the law is very malleable.”

Tom Mitchell is the FT’s south China correspondent

Copyright The Financial Times Limited 2009.

FT: Leaders' spouses make the best truth-tellers

Leaders’ spouses make the best truth-tellers

By Michael Skapinker

Published: October 12 2009 22:24 | Last updated: October 12 2009 22:24

At a recent lunch the Financial Times hosted for management consultants, one of them introduced us to the “spouse test”. Before you submit a proposal to a potential client, the consultant said, ask your spouse to read it. If he or she can’t make sense of it, rewrite it.

The role of spouses in telling us when we are going wrong at work is largely hidden. This is understandable; married life is private. Almost the only time we get a glimpse of what a spouse has contributed to a senior executive’s career is when the couple gets divorced.

Even then, the courts typically concentrate on what the wife (usually it is the wife) has done to maintain a comfortable home and bring up the children, freeing her husband to focus on making his entrepreneurial or corporate fortune.

Occasionally, the judges will go a little further, as in the important English case of Charman v Charman, where the Court of Appeal in 2007 referred to the man being ousted from his company, after which “the parties grew close and the wife gave the husband considerable emotional support”.

Emotional support is often as far as spouses are expected to go. Colette Young, founder of ExecuMate, which counsels corporate spouses, advises forbearance too. “As a spouse, you can’t say ‘put that BlackBerry away’. You have to know part of that life is they’re on 24/7,” Ms Young – whose husband Larry Young is chief executive of Dr Pepper Snapple, the drinks company – told Associated Press.

Should spouses go further? A public declaration of devotion to the boss is usually embarrassing and not very effective.

Sarah Brown’s lauding of her husband at last month’s Labour party conference – “my husband, my hero” – does not seem to have done an enormous amount for the prime minister’s electoral prospects.

Linda Lay’s public defence in 2002 of her husband Ken, the former chief executive of Enron – she called him a “moral human being” and said that they had lost millions of dollars too – was widely held to have been a public relations disaster.

There must be more to being a leader’s spouse than this. Who better to moan to about your cabinet colleagues and the ungrateful voters – or about the board, the shareholders and the staff? Who better to advise you to cancel the furious e-mail you were about to send?

A recent (unauthorised) book about their marriage reports that Michelle Obama advised her husband against making Hillary Clinton his running mate and insisted, against his initial judgment, that the “Yes we can” campaign slogan would be a winner.

Denis Thatcher did not give interviews, but his wife knew the difference his business experience could make to her political judgment. “Nothing escaped his professional eye – he could see and sense trouble long before anyone else,” Margaret Thatcher wrote in The Downing Street Years.

She said that her husband’s knowledge of the oil industry meant she had someone to turn to during the second oil price shock of 1979. “Being prime minister is a lonely job. In a sense, it ought to be: you cannot lead from the crowd. But with Denis there I was never alone,” she said.

However, the signal service spouses can render is to tell leaders what no one else dares to.

In June 1940, Clementine Churchill wrote a letter to her husband, tore it up and then wrote it again. Roy Jenkins, in his biography of Winston Churchill, described the letter as “terrifying”, which it must have been – both for the writer and the recipient.

“My darling,” Mrs Churchill began. “I hope you will forgive me if I tell you something that I feel you ought to know. One of the men in your entourage (a devoted friend) has been to me & told me that there is a danger of your being generally disliked by your colleagues & subordinates because of your rough sarcastic & overbearing manner. If an idea is suggested (say at a conference) you are supposed to be so contemptuous that presently no ideas – good or bad – will be forthcoming. I was astonished & upset because in all these years I have been accustomed to all those who have worked with & under you, loving you – I said this & I was told ‘No doubt it’s the strain’.”

“My Darling Winston – I must confess I have noticed a deterioration in your manner; & you are not so kind as you used to be cannot bear that those who serve the Country & yourself should not love you as well as admire and respect you – Besides you won’t get the best results by irascibility & rudeness.”

“Please forgive your loving devoted & watchful Clemmie.”

You don’t get that quality of advice from many management consultants.

michael.skapinker@ft.com
More columns at www.ft.com/skapinker

Copyright The Financial Times Limited 2009.

ST: Can you copyright food?

Sep 19, 2009

Can you copyright food?

Lawyers and food consultants say it is very difficult for any country to lay claim to a certain dish

By cara van miriah and jocelyn lee

Malaysia has said it wants to 'lay claim' on dishes such as chicken rice, bak kut teh, chilli crab, nasi lemak and laksa, but it will be an uphill task. Lawyer Bryan Tan of Keystone Law Corporation, which specialises in intellectual property that covers trademarks and patents, said popular or generic names such as chicken rice will be rejected by the patent office. But he added that someone can stake a claim to a dish using what is called a 'geographical indication'. He said: 'Hainan, for example, can stake a claim for Hainanese chicken rice as it originated there. 'This informs consumers that a product comes from a certain place and has special qualities due to that place of origin. 'But this is different from a trade mark that is a sign used by a business to distinguish its goods and services from those of its competitors.' One example is home-grown brand BreadTalk's signature Flosss, a bun covered with special mayonnaise and topped with pork floss, created in 2000. The name 'Flosss' is trademarked as part of Breadtalk's brand equity protection in several countries, including Singapore. But this does not stop others from copying the concept and selling the bun under a different name. Mr Tan was responding to remarks made by Malaysia's Tourism Minister Datuk Seri Ng Yen Yen on Wednesday. Speaking at the launch of the Malaysian International Gourmet Festival, she said that other countries, which she did not name, had hijacked some Malaysian dishes. She said: 'Chilli crab is Malaysian. Hainanese chicken rice is Malaysian. We have to lay claim to our food.' She added that it will also identify more dishes as Malaysian in three months' time. Those in the food business here do not think it will work. Mr K. F. Seetoh, founder of food and lifestyle consultancy Makansutra, said one can lay claim to a recipe but not a dish. He said: 'The dishes have evolved due to the different cultures in their own countries. For example, bak kut teh tastes very different in Singapore and Malaysia.' Mr Hassan Abdul Khadir, 64, who runs the 16-year-old Selera Rasa Nasi Lemak stall in Adam Road food centre, said: 'Singapore can also stake a claim on nasi lemak and so can Indonesia. This is a common Malay dish and wherever there are Malays, you will find it.' He learnt the recipe from his mother when he was 18. 'My mother learnt how to cook the dish from her mother and grandmother. All of us are Singaporeans.' He added that the dish represents a rich, shared history between Singapore and Malaysia. 'It's not right for anyone to stake a claim to say that it is Singaporean or Malaysian,' he said. 'We were all once part of Malaya and some of the dishes, such as nasi lemak, have been around for at least 100 years.' Bak kut teh, or pork rib soup, also has a long history. It was introduced in Singapore in the 1950s by immigrants from China, according to Mr Frankie Kwee, 46, who runs the popular Teochew Bak Kut Teh stalls in Havelock Road and PSA Tanjong Pagar Complex near Anson Road. He said in Mandarin: 'I used to live where Liang Court is now. Next to my old house, there were coolies from China who lived and worked in the godowns in Clarke Quay. 'They were the ones who introduced the pork rib soup in Singapore. It was a nourishing meal for the labourers at a time when vitamin supplements were unheard of.' He added that there are many variations of the dish, including lighter- and darker-coloured versions of the soup. Aside from generating debate among foodies here, there are deeper implications to Datuk Seri Dr Ng's remarks. For instance, how will it affect the Singapore Tourism Board's (STB) food initiatives? The board promotes these 'national dishes' at the Singapore Day events held overseas. Mr Andrew Phua, STB's director of tourism, shopping and dining, said dishes such as curry fish head, chilli crab and yusheng originated in Singapore. 'Given Singapore's rich multi-ethnic heritage, we have a colourful and rich food culture that has contributed to Singapore's widely acknowledged reputation as a food paradise,' he said. 'The cuisine that early migrants brought with them decades ago has since evolved to become local favourites. It has also taken on a blend across cultures much like the local fried Hokkien mee that is served with sambal belachan.' The STB said it will continue to reinforce all these dishes to visitors as part of the Uniquely Singapore experience. Food consultant Violet Oon said that it was difficult for any country to lay its claim on a dish. She said: 'Spaghetti, pasta and pizzas are now part of the American culinary tradition and Italy cannot lay claim to them. Much of what is national American food has originated elsewhere, such as hotdogs, which were actually German in origin.' Singapore, Malaysia, and Indonesia also share a common Asian heritage. She said: 'The cuisine of a people tells the unique history of the passage of people between countries and the heritage that many countries share.' caravm@sph.com.sg jocelee@sph.com.sg === Sep 19, 2009 These dishes came from... HAINANESE CHICKEN RICE What: A simple dish of poached chicken and rice flavoured with the stock from the poaching process, served with chilli sauce. History: Food consultant Violet Oon says this dish originated from Hainan Island in China. BAK KUT TEH PHOTOS: MAKANSUTRA, ST FILE What: Hearty pork rib soup cooked with spices and served with white rice and sliced red chilli in dark soya sauce on the side. History: Ms Oon says that this is a Hokkien or Teochew dish from China. She points out that there are many versions of the dish. She says: 'So Malaysia and Singapore can both lay claim to the dish as it is cooked in their countries but it certainly did not originate from either of these countries and is part of our culinary heritage from the immigrants.' CHILLI CRABS ST PHOTO: DESMOND LIM What: Fresh crabs in a sweet and spicy tomato and chilli gravy. History: Two people in Singapore claim to have invented this dish. One is Madam Cher Yam Tian, 78, who created it in 1950 by adding chilli sauce to a dish of stir-fried crab with tomato sauce. The other is chef Hooi Kok Wai, 70, of Dragon Phoenix restaurant. He was one of four master chefs who ruled the restaurant scene in Singapore in the 1960s. NASI LEMAK What: Rice cooked with coconut milk and served with chilli sambal, deep fried anchovies, a slice of omelette and a few slices of cucumber. The dish is usually served on or wrapped in a banana leaf. History: Ms Oon says the dish can be found in Indonesia, Malaysia and Singapore. She says: 'Indonesia could have been the originator of the dish. There, it is known as Nasi Uduk.' LAKSA PHOTOS: SINGAPORE FOOD FESTIVAL, ST FILE What: Rice noodles in a rich, spicy coconut milk gravy History: According Ms Oon, variations of the dish are found in Singapore and Malaysia. Singapore also has Katong Laksa, and there are many versions in Malaysia, such as Johor Laksa, Curry Laksa, Kelantan Laksa, Penang Laksa and Sarawak Laksa, which has a grey-hued gravy.

=== Sep 19, 2009 Chilli crab was created in Singapore When Madam Cher Yam Tian heard yesterday morning that Malaysia was trying to lay claim on chilli crab, she got angry. The 78-year-old said she created the dish in her kitchen in 1950, adding bottled chilli sauce to her crabs stir-fried with bottled tomato sauce. The dish was so well-loved by everyone in her kampung that she started a small pushcart business the same year to sell it. She even came up with the idea of serving the dish with baguette so customers could mop up the spicy gravy. Business grew and she eventually opened a stall six years later in Upper East Coast Road. In 1963, her family opened a restaurant at 514 Upper East Coast Road called Palm Beach, to reflect its beach front, palm-dotted location. The family sold the restaurant in 1984. In 2000, Madam Cher's son, Mr Roland Lim, now 52, opened Roland Restaurant in Marine Parade, selling seafood and chilli crab using her recipes. The friendly retiree told Life! in Teochew: 'I love cooking and would always try new ways of cooking a dish. When my husband suggested adding chilli sauce to my crabs with tomato sauce, I did it and the dish turned out to be delicious. 'Everyone in Singapore knows that I was the one who created the dish, and I've been using this recipe for the past 50 to 60 years. I am angry but I am going to ignore what the Malaysian tourism minister said.' In the 1960s, Singapore chef Hooi Kok Wai, who started Dragon Phoenix Restaurant, re-invented the dish. Instead of using bottled chilli and tomato sauce, he used lemon juice, vinegar, sambal and tomato paste in his gravy. He also topped the dish with egg white, to give it a smoother texture. However, no matter whose version of the dish is more popular today, there is no doubt that it originated in Singapore. Chef Hooi said: 'I am a little surprised to hear about this issue. The words 'chilli crab' are generic and it is very difficult to lay claim to a dish as it is prepared differently everywhere.' Madam Cher said: 'We will let Malaysia's tourism minister say what she wants. As long as deep in our hearts, we know that chilli crab originated in Singapore, that is good enough.' Jocelyn Lee

Copyright © 2007 Singapore Press Holdings. All rights reserved. Privacy Statement & Condition of Access

FT: Inventors are our greatest heroes

Inventors are our greatest heroes

By Luke Johnson

Published: September 1 2009 23:02 | Last updated: September 1 2009 23:02

Society has a curious attitude towards inventors. Their brilliance over the centuries touches all of our lives in countless ways, yet we mostly take their efforts for granted. Indeed, more often than not in Britain we caricature them as eccentric boffins, like Caractacus Potts in Chitty Chitty Bang Bang. This ambivalence is a mistake; to me, they are perhaps the greatest heroes of all.

It is a great shame that so much innovation now seems to stem from nameless teams inside large corporations. The whole idea of technological progress had so much more personality in the era of giants like Nikola Tesla and Thomas Edison. There are too few such inspirational figures around today to dazzle and excite. Perhaps the solitary ideas of one man (or woman) are not enough to produce real technological progress in the 21st century.

Yet the spirit of independent innovation springs eternal. I recently saw Flash of Genius, a movie based on an article (also now a book) by John Seabrook. It tells the true story of Bob Kearns, the professor who pioneered the intermittent windscreen wiper for cars. He showed it to the Ford Motor Company in 1969, but subsequently entered into interminable litigation with it, almost reminiscent of Jarndyce and Jarndyce in Charles Dickens’ Bleak House. More than 20 years later, he settled for $10.2m, but only after his legal actions had taken over his life.

Unfortunately, it appears patent infringement and suchlike is a fact of life for inventors. Sir James Dyson, the inventor of the bagless vacuum cleaner, talks in his autobiography Against The Odds – and subsequently – about various lawsuits against both Hoover and Amway. Knowledge of patent law and persistence bordering on the obsessive seem useful attributes if you want to be a successful inventor.

Inventors I have met are fundamentally motivated by a desire to see their creations become appreciated, rather than an urge to accumulate wealth

The subject of intellectual property and its protection is a contentious one. Industries like the pharmaceutical trade exist thanks to laws that allow them to enjoy temporary monopolies for original drugs. Vast, long-term research and development expenditure can only be recouped because of this complex system. But some would argue that charging high prices (which often bear no relation to the cost of production) for life-saving treatments is immoral. Certainly, the juicy profits enjoyed by big pharma in the US are part of the reason that healthcare costs there are so high. Yet we are all beneficiaries of their discoveries and formulations. I believe in freedom for enterprise, but I also think entrepreneurs must be allowed to reap the just rewards for their efforts.

Moreover, it is clear that some abuse the patent system to prevent progress. Too many patents are now issued, many of dubious merit – especially in the field of software patents. Patent trolls are those who file “paper patents” or “submarine patents” that they never intend to exploit, but merely use as tools to sue unwitting infringers. Both Research in Motion, maker of the BlackBerry, and more recently Microsoft have suffered from this type of behaviour, which acts as a harmful toll on endeavour.

Inventors I have met are fundamentally motivated by a desire to see their creations become appreciated and recognised, rather than an urge to accumulate wealth.

Tim Berners-Lee, the man responsible more than any other for the initiation of the world wide web, is a classic example of this attitude. He is a modest academic who has, I am sure, resisted countless overtures to make huge fortunes from the web, in order to carry on his role as one of its custodians.

Some inventors are almost dismissive of accountants and bankers – they say the money men do not understand the way creative minds work. Yet inventors must have a deeply practical streak: they need to think of ways to fabricate new things. They should be a combination of artist and engineer: with the vision to imagine a new device, and the ability to make it come to life.

We need inventors more than ever if we are to improve the world. From a cure to Alzheimer’s to better car batteries, there are thousands of urgent problems that need solving. History suggests the magical combination of technology, capitalism and brains is capable of meeting every challenge – despite the doubts of the pessimists.

lukej@riskcapitalpartners.co.uk
The writer is chairman of Channel 4 and runs Risk Capital Partners, a private equity firm

Copyright The Financial Times Limited 2009.

Newsweek: Meet The Sotomayors

Meet The Sotomayors

One is a Latina firebrand, the other a model of judicial restraint. It's the latter who will appear before the senate judiciary committee. But it's the former, conservative critics fear, who will sit on the highest court in the land. Will the real Sonia Sotomayor please stand up?

Evan Thomas, Stuart Taylor Jr. and Brian No

NEWSWEEK

From the magazine issue dated Jul 20, 2009

In the press portraits written since Barack Obama named her to the Supreme Court in May, two Sonia Sotomayors have emerged. One is the fiery Latina activist who formally complained to the federal government about her university's alleged ethnic bias; who sat on the board of the Puerto Rican Legal Defense and Education Fund when it accused New York City of discrimination in hiring and voting rights; who sometimes suggested that judicial opinions should reflect the gender and ethnic backgrounds of the judges who write them; who asserted that "a wise Latina woman" was likely to reach a better decision than "a white male." The other is the federal court of appeals judge who writes careful, narrowly reasoned opinions that are unexciting but unalarming, that rarely stray from the mainstream.

This week, at her confirmation hearings, the Senate Judiciary Committee will be eager to find out which Justice Sotomayor will show up at the Supreme Court on the traditional first Monday in October that begins the court's year. There is no way the senators will be able to know for sure. Sotomayor's judicial record reveals little. Judges on the federal courts of appeals are supposed to stick to the law and to obey precedent. Supreme Court justices, on the other hand, have a freer hand. While they are supposed to respect the slow evolution of the law, they have more discretion than lower-court judges to express personal views, to vote their consciences, to make the law fit what Justice Oliver Wendell Holmes Jr. called "the felt necessities of the time."

At her confirmation hearings, Sotomayor is not likely to tip her hand. Her testimony will be carefully considered and undoubtedly guarded. But it is possible to look at the experience that she says did more than any other to shape her—her undergraduate years at Princeton—and get a sense of how her mind works and how she approaches problems. The portrait that emerges is of a shrewd politician who wants to change the system by working within it.

"My days at Princeton … were the single most transforming experience I have had. It was here that I became truly aware of my Latina identity—something I had taken for granted during my childhood when I was surrounded by my family and their friends," Sotomayor said in a speech to the Third World Center at Princeton in 1996. Her sentiment is not unusual among minorities at the school, which has the most Southern and conservative heritage in the Ivy League. Michelle Obama, who attended Princeton in the early '80s, wrote in her senior thesis that she had never felt more aware of her "blackness" than when she was a student at the university. Although Princeton has become quite diverse, many nonwhite students still say they feel a heightened sense of racial identity.

Princeton transformed Sotomayor in another way that she did not mention in her speech. It taught her how to play a particular sort of power game, to get ahead the Princeton way—not by assertion or bullying, but by reason and carefully prepared persuasion. These are values that Princeton has long taught and still tries to teach. Change is to be achieved by working within the system, not by tearing things down.

When Sotomayor arrived in the fall of 1972, she recalled in her 1996 speech, Prince-ton was "an alien land for me." She was a member of only the fourth class to take women. There were very few blacks or Hispanics. It seemed to Sotomayor that the other students had all gone to prep school and taken tennis lessons and enjoyed ski vacations. In the summer after her freshman year, she read the children's and adolescents' classics she had missed but that seemed familiar to all the prep-school students—Alice in Wonderland, Huckleberry Finn, and the novels of Jane Austen.

Sotomayor apparently never encountered outright discrimination. Princeton students are usually too polite for that. Exclusiveness was more subtly, even unconsciously, conveyed. On Sotomayor's very first day, a Southern girl turned to her and two other Hispanic girls and said how wonderful it was that Princeton had all these strange people.

In her freshman year, Sotomayor took a survey course on Latin American history. "She was clearly very intelligent and engaged, but very rough," recalls her professor, Peter Winn. "She was intimidated. She didn't speak in class. She had no idea what she was getting into." Sotomayor has recalled that her writing was "stilted and overly complicated," her "grammar and vocabulary skills weak." Winn undertook to improve it, showing her how to write clear, declarative sentences. More important, he taught her critical thinking. Sotomayor had come from a Roman Catholic high school, Cardinal Spellman, where learning was rote and students were taught to obey authority. Winn's rule was simple: "Be critical of everything, especially things you agree with." Sotomayor was extraordinarily determined to learn, but also cautious and deliberate. "She was slow to join things," Margarita Rosa, who was an activist and a member of the student group Acción Puertorriqueña, told The Daily Princetonian. "She sized up things for a while before she decided to become a part of something." But by the end of her sopho-more year Sotomayor was co-chairman of Acción Puertorriqueña and involved in other groups, as well as a member of the student-faculty Discipline Committee, a powerful position campuswide. Along with other Hispanic leaders at the university, she filed a complaint with the federal Department of Health, Education, and Welfare accusing Princeton of "an institutional pattern of discrimination" against Puerto Ricans and Chicanos. The letter is full of strong language, alleging a "total absence of regard, concern, and respect for an entire people and their culture" and "an attempt—a successful attempt so far—to relegate an important cultural sector of the population to oblivion."

One might think the Princeton administration would be irked by the negative publicity from such a wildly hyperbolic legal complaint. But "no, no, no, no, no," says former Princeton president Bill Bowen. "We were committed to making progress, and we were making progress" on minority hiring and admissions. Sotomayor and the other activists were, in effect, pushing on an open door. Princeton's largely liberal administrators were already committed to transforming the school from WASP bastion to multicultural meritocracy. The only debate was over timing—the university did not wish to act hastily. The important thing was that Sotomayor and the other student activists were working within the system. Though Princeton's campus was tamer than most during the tumult of the late '60s, university administrators were shaken by a building takeover by black activists in 1969.

"What I remember most [about Sotomayor] was just how mature she was," says Bowen. "We didn't see her as wanting to do anything except to improve the university. She wasn't trying to tear anything down." According to some Prince-ton contemporaries interviewed by NEWSWEEK, she reined in the hotheads who wanted to take more direct action, like occupying buildings. Sotomayor was a "true all-rounder," says Bowen. "All-rounder" is a term of high approbation at Princeton, which has long prized brilliant amateurs over narrow specialists. In her senior year she won the Pyne Prize, the university's highest award, for the student who combines scholarship with leadership in campus organizations—the true "all-rounder." She was not a grasping careerist. "She was not one of these students who pushed herself on you," Bowen recalls. Rather, she mastered the very Princeton art of succeeding without appearing to want it too badly. She learned how to show a sense of scholarly detachment. In her 178-page summa cum laude Princeton thesis on the achievements and failures of a Puerto Rican leader named Luis Muñoz Marín, she begins by saying she will put aside her own view—a fairly radical one, that Puerto Rico should be an independent nation. The tone of the thesis is balanced and considered, though with a few bows to faddish radicalism, such as referring to the U.S. Congress as the North American Congress.

Sotomayor has said that she first became interested in the law watching the TV show Perry Mason as a young girl. It is unclear when she first decided that she wanted to be a justice of the U.S. Supreme Court. Winn, her Princeton mentor, says he would have guessed that after Yale Law she'd become a crusading civil-rights lawyer. Instead, she became a prosecutor representing the state—joining the Manhattan district attorney's office, where Robert Morgenthau, the politically powerful D.A. for life, became one of her champions. (She also continued the activism that started at Princeton by serving from 1980 to 1992 as an engaged board member of the Puerto Rican legal-defense group.) In 1984 she moved on to join a private law firm—gaining experience representing private clients that would serve her well in a career on the bench. Well-connected politically in the Manhattan legal establishment, she became a federal -district-court judge in 1992. When she was elevated to the court of appeals in 1998, there was widespread speculation that she would in time become the Supreme Court's first female Hispanic justice.

She has said nothing in her judicial opinions that would get in the way of that ambition. Her opinions are mostly solid, careful, noncontroversial. She has been a good deal feistier and more overtly liberal off the bench—showing her true colors, conservative critics say. Now their speculation is that she will abandon all restraint once she is given life tenure on the high court. Says Ed Whelan, head of the Ethics and Public Policy Center and a leading intellectual conservative critic of the nominee: "As a lower-court judge, she's been obligated to follow Second Circuit and Supreme Court precedent, and she's had ample incentive to do so in order to preserve her viability for the Supreme Court. As a justice, she'd be liberated from the duty to follow precedent she disagrees with. Her disturbing speeches and her fervent embrace of quotas and other left-wing causes provide the clearest window into what to expect from a Justice Sotomayor."

But Whelan and the others may be misreading her. To be sure, she has a reputation for speaking curtly to lawyers appearing before her (especially when they are unprepared) and for occasionally confronting other judges. And it's possible that she will tangle with the most outspoken and sharp-tongued conservative on the court, Antonin Scalia. But it's perhaps more likely she will take a low-key approach, sticking to careful and well-prepared opinions. Sotomayor is not a schemer or a conniver, says her old professor, Peter Winn. But he recalls that when she outmaneuvered those prep-school boys who had seemed so alien to her during freshman year, she permitted herself a wry laugh or two.

URL: http://www.newsweek.com/id/206245

© 2009 

FT: Time of trial brings out our litigious side

Time of trial brings out our litigious side

By Luke Johnson

Published: May 19 2009 20:05 | Last updated: May 19 2009 20:05

A lawyer acquaintance told me last week that his firm was surviving the slump in corporate work thanks to a sharp rise in litigation. It seems that whenever the economy gets difficult, people start falling out with each other, and often the row ends up in court.

Sometimes this is because we want someone to blame for the problems. And one means of getting back at those we think are responsible for the mess is to sue: bank directors, mortgage lenders, investment managers, real estate valuers, rating agencies – whoever. These sorts of claims are highly unlikely to generate any cash proceeds, but I suppose they may bring the plaintiffs a small measure of moral satisfaction. My view is that such actions are a waste of time and money, and only the legal profession wins. As Luke, Chapter 11, verse 46, says: “Woe unto you also, ye lawyers: for ye lade men with burdens grievous to be borne, and ye yourselves touch not the burdens with one of your fingers.”

Of course, those lawsuits are not the really nasty ones. The truly vicious types are those where professional partners have a dispute. Plenty of team-mates at hedge fund firms, private equity shops, law practices, accountancy firms and suchlike are now busy serving writs on each other.

The causes of the quarrels are varied: usually money is at least a factor. With the spoils of business much shrunken there is less to go round, and some partners are finding that adjustment hard to take. They decide to shaft colleagues so they can have their piece of the pie too, rather than accept the pie is smaller. In many cases, the partners are of an age and level of wealth that a pay-off and a period of semi-retirement are not too much of a hardship. Nevertheless, their egos can take a while to recover. In some cases partners who make a mistake are cut adrift, to save the firm. And occasionally partners steal, lie, defraud or go mad – and so they too have to walk the plank.

Plenty of team-mates at hedge fund firms, private equity shops, law practices, accountancy firms and suchlike are now busy serving writs on each other

Such break-ups are invariably bitter. For those who previously worked together, to become enemies is a painful affair. A lot of sacked executives never recover their self-confidence when the board turns against them. Even if they are merely a scapegoat, their CV looks suspect and the outside world assumes the worst. One wonders what the world of commerce will make of all the disgraced bank executives in years to come.

Very often ownership arguments can trigger an opportunity for investors. I was able to take control of PizzaExpress with partners in 1992 because the founders disagreed about the direction of the business. Similarly, a few years later I was able to buy a significant stake in Topps Tiles because one of the trio of shareholder-managers could no longer work with his partners. Divorce and family disputes are common reasons for the sale of a business – even if the timing is poor from the perspective of maximising the valuation.

And great talents who have been sacked often possess a burning desire to get back at their old company. Think of Jeffrey Katzenberg and Disney, or Mickey Drexler and Gap. Both were terminated, and each has enjoyed a comeback at rival organisations – with DreamWorks and J Crew respectively – no doubt partly fired by anger. So ruptures are not by any means always bad news: they can stimulate fresh success.

Falling out can arise through envy, through desperation, through honour, and a feeling that some are not pulling their weight. Writs are being served all over the place for non-payment of debts, warranty claims over failed acquisitions, unfair dismissal and who knows what. The air is thick with recriminations and resentment, as the Great Recession leaves lots of people broke, unemployed or looking stupid and out for revenge.

Compromise and arbitration invariably lead to a better outcome, but testosterone, pride and high emotion can form a dangerous cocktail. All this litigation and fighting can be depressing, expensive and exhausting. It rarely pays, and usually destroys rather than creates wealth. I hope we can quickly move on from the errors and setbacks, learn the tough lessons and look forward to a more positive future.

lukej@riskcapitalpartners.co.uk
The writer is chairman of Channel 4 and runs Risk Capital Partners, a private equity firm

Copyright The Financial Times Limited 2009

FT: Turbulent times - patent opportunities

Turbulent times – patent opportunities

By Rachel Keeler

Published: December 30 2008 20:17 | Last updated: December 30 2008 20:17

James Malackowski makes his best money when times are tight. His Chicago-based intellectual capital firm, Ocean Tomo, shows companies how to price and sell their patented ideas, which during a financial crisis may be the only asset a business can easily market.

“Almost immediately, the phone started to ring more often when we entered the credit crisis, because companies began to turn to their [intellectual property] as a ready liquid source of cash,” Mr Malackowski says.

Ocean Tomo’s success highlights the complex market for innovation now functioning under the constraints of the credit crisis.

As research and development budgets are squeezed worldwide, businesses unwilling to take a chance on new ideas are hoping to profit from the ones they already own. Many worry this trend could stifle innovation in the short term. But Mr Malackowski says rising patent sales have made more technology available to the international market, giving rise to a new, piecemeal model of R&D that can help companies remain innovative in the teeth of a global recession.

Selling and licensing the rights to patents on everything from industrial designs to computer software can be lucrative. Intellectual Ventures, a Washington-based patent investment fund, has spent more than $1bn (€700m, £680m) buying thousands of patents around the world since it was founded in 2000 by Nathan Myhrvold, a former Microsoft executive.

Some have accused Intellectual Ventures of hoarding patents for profit. Vincent Pluvinage, who manages strategic alliances and private equity for the company, counters: “This phenomenon about IP and liquidity is simply a byproduct of a larger phenomenon, which I call the globalisation of R&D.”

Mr Pluvinage says companies willing to trade patented knowledge have created a diffused global market for technological development that did not exist 15 years ago.

A generation ago, R&D was conducted mostly in-house by large corporations willing to invest in new technologies from their beginnings as wild ideas to fruition as commercially viable products. This model required a lot of capital and time, but companies adopted it because they felt any other approach could lead their ideas to leak out, jeopardising their competitive edge.

Trading in ideas first caught on when the dotcom bubble burst in 2000 and the technology companies it had created went up for sale. Since then, Mr Malackowski says the market has grown and strengthened whenever the wider economy feels the pinch.

Today, companies looking for new technology need not make the costly investment to develop it all on their own. Instead, they can turn to a market packed with IP for sale, thanks to the credit crisis. Buyers can pick off the bits and pieces that they need from cash-strapped patent traders and infuse other people’s work into their own products.

Mr Pluvinage points to mobile phones. Two decades ago, the first cellular technologies were developed by individual companies. But given the innovation wrapped up in a mobile phone today – cameras, LCD screens, PDA systems, web browsers, CPU chips – few companies have the resources to produce all of this themselves. Instead, technology products are financed and engineered by global companies that mix and match elements through patent trading.

The model is more capital efficient, diffuses the individual risk of technological development, and leads to more innovation in a shorter period of time – good news for R&D in a recession.

“We are actually seeing an increase in activity on both the sell-side and the buy-side,” says Andrew Ramer, president of Ocean Tomo’s intellectual property auctions arm. “Even in a downturn, companies are still going to bring new products to market and will need to continue with strategic acquisitions.”

And even though many companies are cutting their in-house R&D budgets, the market for piecemeal innovation has encouraged others to push forward with business models focused solely on the production of intellectual property, which they license to buyers along the R&D supply chain.

That CPU mini-computer chip in your mobile phone, for instance, was probably designed by ARM, a technology company based in Cambridge, UK. It controls a huge chunk of the microprocessor patent market but manufactures very few products of its own, instead licensing its designs to other companies.

In October, ARM reported that revenues had risen by 7 per cent year on year for its third quarter. The company also recently announced a new IP portfolio programme, under which other companies may license packages of ARM technology.

The new approach is meant to reduce the time taken from product design to commercial marketing, as well as increase the flexibility of patent use to meet customer requirements, thus reducing the risk for ARM’s buyers.

Whether or not a company’s business model is one of pure intellectual property production, Mr Pluvinage says licensing patents for widespread use is, legally, a less complex way to make money than trying to guard an in-house portfolio.

“In many ways, licensing is an alternative to past practices of trying to monetise the intellectual property through litigation,” he says. “Litigation can be costly, unpredictable and dangerous.”

Intellectual property lawyers in the UK say they have seen a rise in companies filing lawsuits to protect their copyrighted IP, but less so for patents, which are far more difficult to defend.

Copyright The Financial Times Limited 2008

FT: Cooking with a small ©

Excerpt:

One of the distinctive features of the restaurant business internationally is that in contrast to so many others, industrial espionage does not seem to exist and there are few trade secrets, if any. Recipes were shared even before the internet and head chefs welcome “stagiaires”, young chefs on a placements, with commendable enthusiasm.

It’s a shame that the individuals who have created the world’s classic dishes – such as beef Wellington, Caesar salad, escalope of salmon with sorrel, hare à la royale or even crême brulée – are not as widely known as they should be. But like every enthusiastic restaurant-goer I am equally grateful that while they were so busy at their stoves, the idea of copyrighting their dishes or their menus never occurred to them. Had they done so, the world would definitely have been a poorer place.

===

Cooking with a small ©

By Nicholas Lander

Published: August 30 2008 01:53 | Last updated: August 30 2008 01:53

From the moment I was handed the single sheet menu at A16, an extremely fashionable and popular restaurant on Chestnut Street in the very cool Marina district of San Francisco close to the Golden Gate Bridge, my eye was caught by its very last line. This reads “© 2008 All rights reserved A16 restaurant” – the very first attempt that I have ever come across by the owners of an independent restaurant to copyright their menu.

Opened four years ago by partners Shelley Lindgren, Nate Appleman and lawyer Victoria Libin, A16 takes its name from the motorway that runs east out of Naples through Basilicata and into Puglia, a region relatively unexplored by many restaurateurs that not only inspires its menu but also its very particular wine list.

By concentrating on such an esoteric area its owners have ensured that A16 remains incredibly busy, attracting not only those visiting the city keen on food and wine but also those who live nearby. They have even managed to overcome the universal challenge of quiet Monday evenings by introducing a special, inexpensive dish called “Meatball Mondays”, which they serve as both a first and main course.

On the night we ate there the place was packed, so much so that A16 more closely resembled a frenetic New York restaurant than one in the usually more relaxed Bay area. The reception area was crowded as was the bar just beyond. As we were led to our table towards the back of the restaurant it was just possible to squeeze between the tables on the left and those eating at the counter opposite the two wood-fired ovens, one handling the excellent pizzas, the other the main courses (this being California, both in this otherwise authentic Italian restaurant were manned by Hispanics). These two ovens and the numbers they serve make this section of the restaurant very hot and equally noisy.

We ate and drank well. Their wine list is fascinating and they use their ovens effectively, most obviously for pizza, but also for a first course of roasted Monterey Bay sardines with meyer lemons and Calabrian chilis and a main course of crespelli (Italian pancakes) stuffed with lamb, ricotta, tomato and pecorino. Only the pasta disappointed.

During the meal I asked A16’s manager about the copyright line but I got no reply. I later managed to speak to Libin, who as well as being founder, part-owner and business manager of A16 and its younger sibling SPQR, which specialises in the food and wine from the region around Rome, is a legal affairs officer with MTV Networks West Coast Digital, and an expert in intellectual property.

Libin was clear what she was trying to achieve. “I believe that the design and non-descriptive wording of a menu may be copyrighted and given my professional background, it was instinctive for me to want to protect our menu’s look and feel,” she told me. “We have also trademarked our names and logos. My goal is to protect the look and feel and other elements that make the dining experience at A16 and SPQR unique so that others cannot trade on our goodwill.”

While I was wondering what possibility any restaurateur may have of enforcing this, a chance encounter led me to Vijak Toke, A16’s commercial lawyer and, subsequently, to a meeting in the offices of his law firm, Cooper, White & Cooper, in San Francisco’s business district. Ironically, for someone handling the modern face of restaurants, Toke’s office is located directly opposite Tadich Grill, which having opened in 1849 claims to be the oldest restaurant in California.

Toke is also an intellectual property lawyer who specialises in what he describes as “soft” intellectual property, ie trademarks rather than patents. He confirmed that this line is meant to convey to the world that A16 considers its menu protectable property, forewarning everyone that it will do its utmost to protect that intellectual property.

Good lawyer that he is, he backed this up with two cases from recent American law which had upheld copyright in a menu. The first, in New York, upheld the copyright protection in the overall design of Chinese menus which featured photographs of the dishes. The second was for a Mexican restaurant in Kansas, whose buyers sued the vendor’s daughter after she opened a rival restaurant and violated copyright in the order in which certain items were listed. The expression “three beef tacos” could not be protected but a fanciful description that incorporated this dish could.

Toke, perhaps not surprisingly, believes this can only be beneficial to chefs and restaurateurs. “The touchstone is the question of originality and creativity. What we believe can be protected need not necessarily be novel but it has to be original. And I am convinced this will ultimately reward any and every chef’s creativity and to the extent that they can protect them, they should.”

I have to admit that despite the California sunshine, I left Toke’s office downhearted. One of the distinctive features of the restaurant business internationally is that in contrast to so many others, industrial espionage does not seem to exist and there are few trade secrets, if any. Recipes were shared even before the internet and head chefs welcome “stagiaires”, young chefs on a placements, with commendable enthusiasm. Could all this hugely beneficial sharing of information soon hit the legal buffers, I wondered?

Fortunately, my concerns were dismissed during a conversation with Cecily Engle, a highly respected London-based copyright lawyer. “I certainly don’t know of any cases in the UK relating to the copyrighting of menu descriptions or layout. The law in the UK is very clear about this and no artist, whether painter, writer or musician, needs to affix a small c to their work, as the copyright automatically belongs to them. In the same way the originality of the design and layout of a menu automatically belongs to the restaurateurs. Take the menu at The Wolseley, for example. As long as its owners have bought the design outright from whoever created it, then that menu is theirs. I’m sure that there is a fair amount of copying of menu ideas but every industry has its different attitudes towards this type of thing and it can probably be resolved without going anywhere near a court of law.”

Engle’s opinions induced a great sense of professional relief. It’s a shame that the individuals who have created the world’s classic dishes – such as beef Wellington, Caesar salad, escalope of salmon with sorrel, hare à la royale or even crême brulée – are not as widely known as they should be. But like every enthusiastic restaurant-goer I am equally grateful that while they were so busy at their stoves, the idea of copyrighting their dishes or their menus never occurred to them. Had they done so, the world would definitely have been a poorer place.

...................................

A16, 2355 Chestnut Street, San Francisco, CA 94123. tel: +1 415-771 2216
www.a16sf.com

SPQR, 1911 Fillmore Street, San Francisco, CA 94115. tel: +1 415-771 7779 www.spqrsf.com 

nicholas.lander@ft.com
More columns at www.ft.com/lander

Copyright The Financial Times Limited 2008

BusinessWeek: Online Sharing with Creative Commons

Intellectual Property August 15, 2008, 9:27AM EST text size: TT

Online Sharing with Creative Commons

The Japanese Net entrepreneur Joichi Ito makes a case for free-content distribution on the Internet. Nine Inch Nails is an early adopter

by Kenji Hall

Not long after Joichi Ito uploaded a photo he had taken of Internet pioneer Vinton Cerf to the online encyclopedia Wikipedia last year, he noticed something odd. Most of the Internet luminaries and technology gurus who had write-ups on Wikipedia had poor-quality photos or none at all. It wasn't just that. "I realized that some famous people have no free photos online," says Ito, a U.S.-educated Japanese venture capitalist and co-founder of Digital Garage, a Tokyo Net startup incubator.

Ito decided to do something about it. Last May he started turning his Leica and medium-format cameras on practically anyone he met on his travels. Ito spent half the year crisscrossing the globe for meetings and conferences, and within months he had a trove of thousands of images: from O'Reilly Media founder Tim O'Reilly, Wikipedia co-founder Jimmy Wales, to film directors George Lucas and J.J. Abrams (of Cloverfield and Mission: Impossible III fame). There were even shots of Ito's own sister Mizuko and other family members.

Now he plans to publish them in a book, titled Freesoul. But Ito doesn't expect to profit. In September, when the book goes on sale on Amazon (AMZN), Ito will give away the photos online. Anyone will be able to download, re-use, republish, or remix the photos for free; Ito only asks that they credit him for the originals. He thinks more people will download the photos than buy the book. "If we sell a couple thousand copies [to recoup the costs], that's fine," says the boyish 42-year-old Ito.

Giving it Away on the Internet

Ito isn't just some amateur shutterbug with an altruistic streak. In April he took over as the head of Creative Commons, a nonprofit organization that offers copyright licenses for creative works. Creative Commons is the brainchild of Stanford law professor Lawrence Lessig. He started it in 2001 because he felt that traditional copyright laws might hamper sharing over the Internet. Typically, Creative Commons licenses let creators give their works away online. But they can choose to let others use the work for commercial purposes, as Ito's book will, or restrict their work to noncommercial uses.

The handover from Lessig to Ito marks a new phase. Lessig was the visionary whose credentials as a legal expert and former Supreme Court clerk gave the organization credibility with lawyers. Ito is cut from different cloth. He created one of the first Web pages, experimented with hacking, started Japan's first commercial Internet service provider before the Net caught on, and has kept an online diary about his exploits since the mid-1990s, before "blogging" became a household term. Many hope Ito will recruit more entrepreneurs, businesses, and ordinary Net users. "Joi brings a set of applied experiences from the unavoidably rough-and-tumble world of business," says Reuben Steiger, former chief evangelist of Linden Labs and CEO of San Francisco consulting firm Millions of Us.

Ito has set himself an ambitious goal: to turn Creative Commons into a global mass-market brand. "The mission is to simplify licensing to make it easier for normal people to use copyright without hiring fancy lawyers," he says. That goal is a long way off. Creative Commons estimates that just 140 million online works sport its logo. Its critics say the licenses add legal complexity to copyright disputes.

Even so, the movement has influential backers. Microsoft's (MSFT) Word, Excel, and Powerpoint software now come with tools to set up Creative Commons licenses, and Google (GOOG) and Yahoo (YHOO) allow users to search for Creative Commons-licensed films, photos, and books. More than 200 universities worldwide have joined OpenCourseWare, a group that distributes Creative Commons-licensed course materials for free. (Through OpenCourseWare, Japan's Shinsei Bank said in April it would let the Indian Institute of Technology Kanpur teach students about the intricacies of the bank's computer network.)

Making Money by Being Free

In March rock band Nine Inch Nails released songs using the license. And on Aug. 13 a Washington federal appeals court ruled on a case that lets artists and programmers use contracts to distribute free software and digital works for the public good.

By publishing Freesouls, Ito puts himself at the center of the debate over Creative Commons. It's one way to find out where the organization's shortcomings lie. That's important as the free-content-distribution model continues to evolve. "I believe a lot of people will make money on it," he says. "I want to prove that by writing books and investing in companies that will make money on it. Hopefully, a lot of people will replicate that."

But Ito also frets about the possible conflicts of interest in his dual role of businessman and Creative Commons chief executive. To keep his critics at bay, he regularly discloses details about his $40-million fund's investments and his appointments to corporate boards.

Credit Where It's Due

Ideally, artists who give away some of their works to advertise their talents might later receive paying jobs. But not everyone who uses Creative Commons-licensed content knows the rules. For example: Last July, BusinessWeek included in an online slide show Ito's photo of eBay (EBAY) founder Pierre Omidyar from photo-sharing site Flickr (YHOO) but didn't credit him for it. After someone saw the photo and alerted him, he sent an e-mail asking for attribution. The next day, BusinessWeek added his name in the photo's caption.

The same could happen with Freesouls. To avoid privacy disputes, he asked every person who appears in the book to sign a waiver ("which was a pain," he says). He also had to explain that they weren't just granting him permission to use their images. The Creative Commons license will let anyone download the photos for free and publish them—and keep all the profits.

Hall is BusinessWeek's technology correspondent in Tokyo .

Economist: Piracy

Piracy

Look for the silver lining

Jul 17th 2008
From The Economist print edition

Piracy is a bad thing. But sometimes companies can turn it to their advantage

Illustration by Claudio Munoz

“MERCHANT and pirate were for a long period one and the same person,” wrote Friedrich Nietzsche. “Even today mercantile morality is really nothing but a refinement of piratical morality.” Companies, of course, would strongly disagree with this suggestion. Piracy is generally bad for business. It can undermine sales of legitimate products, deprive a company of its valuable intellectual property and tarnish its brand. Commercial piracy may not be as horrific as the seaborne version off the Horn of Africa (see article). But stealing other people’s R&D, artistic endeavour or even journalism is still theft.

That principle is worth defending. Yet companies have to deal with the real world—and, despite the best efforts of recorded-music companies, luxury-goods firms and software-industry associations, piracy has proved very hard to stop. Given that a certain amount of stealing is going to happen anyway, some companies are turning it to their advantage.

For example, around 20 times as many music tracks are exchanged over the internet on “peer to peer” file-sharing networks as are legitimately sold online or in shops. Statistics about the traffic on file-sharing networks can be useful. They can reveal, for example, the countries where a new singer is most popular, even before his album has been released there. Having initially been reluctant to be seen exploiting this information, record companies are now making use of it (see article). This month BigChampagne, the main music-data analyser, is extending its monitoring service to pirated video, too. Knowing which TV programmes are being most widely passed around online can help broadcasters when negotiating with advertisers or planning schedules.

In other industries, piracy can help to open up new markets. Take software, for instance. Microsoft’s Windows operating system is used on 90% of PCs in China, but most copies are pirated. Officially, the software giant has taken a firm line against piracy. But unofficially, it admits that tolerating piracy of its products has given it huge market share and will boost revenues in the long term, because users stick with Microsoft’s products when they go legit. Clamping down too hard on pirates may also encourage people to switch to free, open-source alternatives. “It’s easier for our software to compete with Linux when there’s piracy than when there’s not,” Microsoft’s chairman, Bill Gates, told Fortune magazine last year.

Another example, from agriculture, shows how piracy can literally seed a new market. Farmers in Brazil wanted to use genetically modified (GM) soyabean seeds that had been engineered by Monsanto to be herbicide-tolerant. The government, under pressure from green groups opposed to GM technology, held back. Unable to obtain the GM seeds legitimately, the farmers turned to pirated versions, many of them “Maradona” seeds brought in from Argentina. Eventually the pirated seeds accounted for over a third of Brazil’s soyabean plantings, and in 2005 the government relented and granted approval for the use of GM seeds. Monsanto could then start selling its seeds legitimately in Brazil.

Innovators ahoy

Piracy can also be a source of innovation, if someone takes a product and then modifies it in a popular way. In music unofficial remixes can boost sales of the original work. And in a recent book, “The Pirate’s Dilemma”, Matt Mason gives the example of Nigo, a Japanese designer who took Air Force 1 trainers made by Nike, removed the famous “swoosh” logo, applied his own designs and then sold the resulting shoes in limited editions at $300 a pair under his own label, A Bathing Ape. Instead of suing Nigo, Nike realised that he had spotted a gap in the market. It took a stake in his firm and also launched its own premium “remixes” of its trainers. Mr Mason argues that “the best way to profit from pirates is to copy them.”

That this silver lining exists should not obscure the cloud. Most of the time, companies will decide to combat piracy of their products by sending in the lawyers with all guns blazing. And most of the time that is the right thing to do. But before they rush into action companies should check to see if there is a way for them to turn piracy to their advantage.

==

Internet piracy

Thanks, me hearties

Jul 17th 2008
From The Economist print edition

Media firms find that statistics on internet piracy can be rather useful

Illustration by David Simonds

GLOBAL sales of recorded music fell by 8% in 2007, according to figures released in June by the International Federation of the Phonographic Industry, a trade group. It blamed 70% of the decline on “file-sharing” software, which allows internet users to exchange music and video without paying for it. Industry groups have sued thousands of users of such software, and have supported legislation to criminalise it. But file-sharing has so far proved impossible to stop. And it is not all bad news for the industry, because it can provide helpful insights into music-lovers’ interests.

For every song that is bought legally, in shops or online, around 20 songs are illegally downloaded, according to BigChampagne, a firm based in Beverly Hills, California, that compiles and sells statistics about file-sharing. Its customers can find out how many times, and where, a song has been illicitly downloaded, for example, what the figure was five weeks ago, what other music its fans like, and so on.

“It doesn’t make sense to put your head in the sand,” says Ken Bunt, head of marketing at Disney’s Hollywood Records, a BigChampagne customer. One of Hollywood Records’ artists, Jesse McCartney, is particularly popular in Italy, so that might be a good place for a tour, says Mr Bunt.

David Ross, the editor of Music Row, the largest country-music trade journal, based in Nashville, Tennessee, says the “anti-intellectual argument” not to use such data is emotional nonsense. Music Row publishes file-sharing figures, as well as conventional charts. Such information can help managers promote their artists. Jennifer Bird of Red Light Management, a management agency in Los Angeles, says her agency knows the names and geographic destinations of the 7.5 billion songs swapped in 2007. That is a big help if you are trying to work out whether people are raving about an artist—or merely about a song. And planning joint tours is easier when you know what other music an artist’s fans listen to.

BigChampagne’s latest venture, launched this month, extends its monitoring to television programmes and films, which are also widely shared online. Knowing what is popular among file-sharers could help broadcasters and film studios when negotiating with advertisers, for example. Hulu, a website operated by News Corporation that offers free, advertising-supported video-streaming, already uses file-sharing statistics to design its programming and to set advertising rates.

Many music executives were reluctant to take advantage of file-sharing statistics because of the trouble the technology has caused in the industry, says Eric Garland, BigChampagne’s boss. TV stations and film studios, by contrast, are “sprinting through the stages of grief”—and coming to terms with the reality that details of the illegal use of their material can, in fact, be very useful indeed.

ST: Online privacy versus piracy

July 21, 2008
Online privacy versus piracy
Millions of YouTube enthusiasts - including many in Singapore - should be relieved the video-sharing website's owner Google has to hand over only anonymised viewer logs in media giant Viacom's US$1 billion (S$1.35 billion) copyright lawsuit. Viacom and other plaintiffs may be suing only for payment of fair value of their content YouTube has made freely available online. They may have no wish to go after individual uploaders or viewers. Another, less obvious, motive might be that the usage data may come in handy in carving out their own online video market share and in boosting their own advertising revenues. Stripping out users' names and their Internet protocol addresses from the evidence allows the plaintiffs a chance to prove their case without compromising US privacy protection law. In welcoming the compromise, nevertheless, Web surfers would do well to realise that online privacy and copyrights are legal issues that are still evolving, in the United States and other jurisdictions. Singaporeans have only to recall the legal action the company Odex brought in the past year to see that surfing the Net is not totally free from privacy and piracy pitfalls. The firm, distributor of Japanese cartoons called anime, obtained court orders requiring SingNet and StarHub to reveal the identities of 2,000 subscribers by tracing their IP addresses captured when they allegedly downloaded cartoons illegally. At least 100 settled last year. On an appeal that six Japanese studios - owners of copyrights - joined earlier this year, the High Court ordered a third service provider, Pacific Internet, to identify other offending downloaders. The success in court seemed to make clear that those who access copyrighted online content cannot claim a right to privacy. This time Google managed to avoid a public relations debacle over users' privacy in forestalling Viacom's initial demand. Next time a service provider may not be as able or as willing to resist when privacy rights come up against copyrights. The US music industry, for example, continues successfully to track down and sue people exchanging tunes online illegally. Still, many legal questions remain unsettled, such as the method and extent of IP address detection and disclosure, the role and responsibility of service providers versus the interests of copyright owners, and the possibility of use of confidential information unrelated to litigation. Until such issues are resolved in a way acceptable or at least tolerable to everyone, surfers should read the usage fine print on websites and remain circumspect about risks of exposure and legal trouble.

BT: Letting the evidence speak for itself

Published April 26, 2008

Letting the evidence speak for itself

'I PREFER to let my work speak for me,' says Senior Counsel K Shanmugam, in explaining why he prefers not to be interviewed on his achievements. 'I don't believe in talking about myself. My work is done in Open Court and people can assess for themselves.'

His body of work has made him one of Singapore's best-known and most-feared names in litigation. His cases - hundreds over the years - bear his hallmark; each victory is marked by his intense familiarity with every piece of evidence and a thorough and lightning-quick absorption of the facts, which has enabled him to trap witnesses in cross-examination and tear down cases meticulously built up by his opponents.

More than once has Mr Shanmugam pulled a rabbit out of a hat, turning a seemingly impossible case on its side, by proving - through a superior interpretation of the evidence - that his opponents have not presented a sufficient case to answer, or by deftly luring witnesses into contradicting their own testimonies and admitting their guilt.

He demonstrated this ability in the recent high-profile cases involving the National Kidney Foundation and Horizon Towers. But perhaps few know that such an impressive skill manifested itself in the very first High Court case he argued - that of Manilal & Sons (Pte) Ltd versus Bhupendra KJ Shan, in 1987.

The plaintiffs, Manilal, were represented by M Karthigesu of Tan Rajah & Cheah and the defendants were represented by a very young Mr Shanmugam, who was then with Drew & Napier.

'I was only 28 years old, and up against a formidable opponent - Mr Karthigesu (who later became a Justice of Appeal). He would have been the equivalent of the very best amongst the SCs today, and it was quite challenging to square up against him,' Mr Shanmugam recounts.

The odds were stacked against the young lawyer - 'The case was seen as a complete loser and was given to me as the youngest on the totem pole because no one else wanted to do it', he says. But, as in many of his other cases, the keen litigator managed to turn the table on his opponents. After the plaintiffs filed their list of documents for the trial, Mr Shanmugam pushed them for a further and better list of documents - realising there was more key evidence to be had. The plaintiffs failed to produce the documents, claiming either that the evidence had been written on 'scraps of paper' which had been thrown away or that the evidence was in the defendants' possession. Under intense cross examination, the plaintiffs' story was shredded to pieces. Mr Shanmugam argued that the plaintiffs' entire case should be thrown out.

Justice Chao Hick Tin accepted Mr Shanmugam's arguments and, quoting excerpts of Mr Shanmugam's cross examination, threw out the plaintiffs' case completely, on the grounds that they had failed to give proper discovery of documents. The decision became an important and leading precedent on discovery in Singapore courts.

Many will also remember IDA vs SingTel in 2002, for the personalities and sums involved. The Infocomm Development Authority of Singapore (IDA) had sought the return of $388 million it claimed had been paid mistakenly to SingTel as the tax element in the $1.5 billion compensation that the telco received for giving up its monopoly early. IDA wanted the money back after the tax authority said the compensation was non-taxable.

The case pitted Senior Counsel Davinder Singh of Drew & Napier, acting for IDA, against SingTel's counsel Mr Shanmugam and Jules Sher - one of Britain's most highly regarded Queen's Counsel.

Justice Lai Kew Chai threw out IDA's claim in a strongly worded ruling, saying the telco regulator and SingTel had struck an inviolate contract and that it was 'wholly unjust and contrary to fair play' to order SingTel to return a part of the compensation. He ordered IDA to foot SingTel's legal costs and allowed SingTel to claim for two lawyers, instead of the customary one, on the grounds that the case required specialist expertise.

Mr Shanmugam and Mr Sher's fees were tipped to weigh in at between $2 million and $3 million; and observers expressed their surprise at the IDA's decision not to appeal the ruling. He has also made waves in a case involving Lew Syn Pau in 2006, in which the former Member of Parliament was charged for breaching Section 76 of the Companies Act, which forbids a company from providing financial assistance to anyone for the purpose of acquiring its shares.

The case was a high-profile one, given that it involved a former politician - but it was also notable in that it involved a question of law of unusual difficulty, and henceforth defined how Section 76 of the Companies Act would be interpreted.

Mr Lew was said to have rendered financial assistance when Broadway's Mauritian subsidiary Compart Asia Pacific lent him $4.2 million and he, in turn, lent $4 million to a third party to buy the shares of listed Broadway Industrial Group.

Mr Shanmugam successfully argued that the prosecution's case should be thrown out in its entirety even without the defence being called, on the basis that there was no breach of Section 76, as - for the purposes of company law - a parent company and its subsidiary are seen as separate legal entities, separated by a 'corporate veil'.

Mr Shanmugam's remarkable ability to turn a case around in his cross-examination of witnesses was again showcased in Prebon vs BGC in 2006.

Money broker Tullett Prebon sought $66.4 million from rival BGC International - represented by Mr Shanmugam - in compensation for lost business, claiming BGC conspired with its former regional head to 'decimate' its money-broking staff after almost half of them left to join BGC in February 2005.

Prebon's witnesses contradicted their own testimonies, under cross-examination by Mr Shanmugam. Prebon's Asian head Len Harvey, in particular, became so entangled in his own evidence that he had to be stopped by his own counsel, who told the court: 'Your Honour, I think the witness should be given a chance to explain because this witness is not the brightest.' This intervention made it to the London Times.