The talks at day one of the XOXO festival have been incredibly high quality: actual innovators and creators of disruptive media and technology have relayed their experiences of eliminating middlemen and charting new territory for success. It’s just amazing to see what a cool group of people have come together for this event.
One common theme within the talks has been the interaction between innovation, copying, and the effect of copyright and patents. More exciting, these creators have all arrived at a similar mindset and are able to articulate it well.
Innovation depends on copying
There were so many examples of artists and creators talking about the relationship between their own creativity and the influences of others.
Ron Carmen, the developer behind the game World of Goo, talked about how he learned video game development by copying a game he liked. “That’s what you do with things you like. You copy them.” Julia Nunes, the YouTube ukulele superstar, started by doing covers until she was writing original songs.
Bre Pettis, whose company MakerBot makes inexpensive 3D printers, said that their tech development was based on “expired patents, open source code, and epic internal innovation.”
Dan Harmon, the creator of the TV series Community, was explicit about his influences in television and talked about how frustrating it was to work with television executives who didn’t know and breathe its common culture.
Copycats are frustrating, but not worth your time
Many of the talks acknowledged the problem that innovators face costs and risks that uncreative copycats do not, which can cause problems. The guys at Studio Neat showed a slide of a direct ripoff of the Glif, their iPhone kickstand and tripod mount that they funded through Kickstarter. Even the packaging was basically identical. They weren’t happy about it — even the slide was painful to show, they said — but came to the conclusion that their time was better spent innovating than trying to chase down the copycats. “Don’t spend your time chasing down copycats; make them chase you.”
Their story was not unique. Ron Carmen, the game developer, had plenty of experience with ripoffs, including from larger companies. Bre Pettis at MakerBot talked about companies that have taken their open source plans and cut corners to sell cheaper printers. On the other hand, a proliferation of 3D printers, and the corresponding creativity at scale, are good for them as a company. So the difficulty, he said, is releasing their plans in a way that “makes people copy, but encourages innovation.”
Restrictions on copying — especially patents — are “overrated”
“Overrated” was the word the guys at Studio Neat used for patents. Patents aren’t a silver bullet or a magical force field against copying, and spending time in court is worse than spending time innovating. In their field, which moves fast, the first mover advantage is more important than a legal monopoly.
MakerBot’s Bre Pettis said that he always assumed the patent system would collapse before his company was big enough to have to deal with it, but now we’re “stuck with it.” His company makes printers that are between $1,000 and $2,000, but compete with $200,000 models. The companies that make those have patents that they are eager to enforce, making innovation in that space difficult.
The best way to be in the right place at the right time is to be in all the places all the time
Almost all of the speakers described a moment where their works “tipped,” and suddenly became much more popular. The ukulele player Julia Nunes had one of the best descriptions about how it doesn’t come in the form of “a big break,” but rather as many small leaps and opportunities, from being featured on the front page of YouTube to getting to open for Ben Folds to appearing on Conan O’Brien.
The other speakers had similar “breaks”: for Studio Neat it was John Gruber posting a link to their project on his website; for the creators of Indie Game: the Movie, it was Andy Baio tweeting about them. What these breaks have in common is that they were unforeseen, and the result of a piece of content making it into the right person’s hands at just the right moment.
So how do you facilitate that? None of the speakers said it directly1 but the surest way to be in the right place at the right time is to be all the places all the time. This is hard for people to do, but it’s easy for content: just make it easy to copy and distribute your work, and your fans will take care of the rest.
Cory Doctorow refers to this strategy as “thinking like a dandelion.” Instead of fretting and focusing on each copy, make as many as you can and make it easy for others to make them too.
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One of the remarkable things about this conference has been the invigorating effect it has on my creativity. Seeing these people talk about making things — I want to make things! Thinking like a dandelion, and getting my creativity out there, seems like a great way to start.
Julia Nunes came closest when she said “I make myself incredibly easy to find.” ↩
The influential federal judge Richard Posner turned some heads recently with a long review of Justice Antonin Scalia’s new book Reading Law. In the critique, which serves as more of a general indictment of Scalia’s school of textual originalism, Posner digs in with some strong words. The whole thing has kicked off a back-and-forth worth reading. But why should I care about a verbal judgefight — even one that pits the great Posner against Scalia?
The answer, as is so often the case, lies at the nexus of burritos and sandwiches. Unsurprisingly, Posner and Scalia have differing opinions on the 2006 landmark burrito law case White City Shopping Center, LP v. PR Restaurants, LLC — more hilariously styled Panera v. Qdoba — in which a Massachusetts judge held that a burrito is not a sandwich. Panera, whose lease agreement with the White City Shopping Center prohibited the mall from renting to another sandwich vendor, could not prevent Qdoba from moving in and selling burritos.
Scalia applauds the decision; Posner is more skeptical. In particular, he doesn’t think the dictionary definition of sandwich used in the case (“two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them”) goes far enough. Judge Posner:
A sandwich does not have to have two slices of bread; it can have more than two (a club sandwich) and it can have just one (an open-faced sandwich). The slices of bread do not have to be thin, and the layer between them does not have to be thin either. The slices do not have to be slices of bread: a hamburger is regarded as a sandwich, and also a hot dog—and some people regard tacos and burritos as sandwiches, and a quesadilla is even more sandwich-like.
Posner does not go so far as to suggest that a burrito is a sandwich, just that the judge and Scalia arrive at the correct conclusion for the wrong reason.
The dictionary definition is corroborated by other governmental institutions. The USDA’s Food Standards and Labeling Policy Book [pdf], for example, gives a guideline for how a burrito may be labeled:
A Mexican style sandwich-like product consisting of a flour tortilla, various fillings, and at least 15 percent meat or 10 percent cooked poultry meat. The flour tortilla is rolled and may or may not have tucked ends.
To my mind, burritos, falafel, wraps, and similar products fall into a category sometimes dubbed the Urban Food Log. Are UFLs a proper subset of sandwiches? On what grounds could a reasonable person justify such a distinction?
One of the all-time classic burrito v. sandwich essays, Good Magazine‘s Is a Burrito a Sandwich? offers an answer. We decide the classification with a gut take, and that intuition is informed by cultural factors. Good says:
No unifying theory exists to classify your meal by appearance, ingredient, or construction method. The sandwich is a social compact between lunchers: We have come to a consensus on a group of foods that we will call “sandwiches,” one that defies even the most obvious attempts at classification. … That degree of universal cultural acceptance doesn’t happen overnight. The burrito has a long time to wait.
Diving deep into the notion that a burrito is not a sandwich for cultural reasons, the excellent and very readable Michigan Journal of Race and Law article incredibly titled “Is a Burrito a Sandwich? Exploring Race, Class and Culture in Contracts” makes some compelling points about Panera v. Qdoba and its unstated racial undertones. Its author, Marjorie Florestal, presages Posner’s concerns about reliance on dictionary definitions, and goes further to question the supplemental materials a court might use to distinguish the two. Expert witness testimony, like that offered by Chef Christopher Schlessinger, may seem to offer direction (“I know of no chef or culinary historian who would call a burrito a sandwich. Indeed, the notion would be absurd to any credible chef or culinary historian.”) but raises more questions.
Florestal asserts that — to the extent possible — burritos have a race, and that race is Mexican. Sandwiches are white. That meant, according to Florestal, that “race played a significant but silent role in the proceedings.”
As an amateur burrito historian, I can’t help but find myself fascinated with these questions. Is a burrito a sandwich? We know what the judges say. But to extent that these definitions are built on developing cultural understanding, it’s safe to say the jury is still out.
This one’s a bit tougher. These days, the standard accepted range for saxophone is between a B♭ below the treble clef to an F♯ above it. That’s about two and a half octaves, or a total of 32 notes.1 It’s possible, if a bit convoluted, to play a low A and a high G, so we can add two for a total of 34 notes.
Less than a century is certainly short enough that some women who are alive today were born without the right to vote. But, then, they would’ve been too young to vote at the time anyway. Is there still a woman alive today who could have been denied a vote in a presidential election on the basis of her gender?2
As it turns out, the answer to that question seems to be yes. The world’s oldest living person happens to be an American woman named Besse Cooper, and she celebrated her 116th birthday this weekend. She was born in 1896 in Sullivan, Tennessee, but moved to Monroe, Georgia during World War I. That means she would have been living in Georgia when she turned 21 on August 26, 1917. (I’m going with 21 instead of 18, because that was the national voting age before the passage of the Twenty-sixth Amendment in 1971.)
1918 was a Senate election year, and Ms. Cooper would have been denied the right to vote in that race. Incumbent Thomas Hardwick lost in the Democratic primary, but two years later was elected governor. One of his most notable acts, incidentally, was appointing the first woman to serve in the Senate, Rebecca Latimer Felton. Her appointment was basically ceremonial — she only served for one day — but to date she’s still Georgia’s only female Senator.
Anyway, cut to two years later and the first presidential election since Ms. Cooper’s 21st birthday. Because of the recent ratification, women all over the country were set to vote for the president for the first time. Georgia, however, was not only the first state to reject the amendment, but also continued to resist it even after its ratification. In particular, the legislature refused to allow women to vote at the polling station because they had failed to register in April and May of that year, before they were legally allowed to do so.3 Women in Georgia apparently weren’t allowed to vote until the 1922 mid-term election, and the state didn’t formally ratify the amendment until 1970.
Georgia went to James M. Cox, but Warren Harding won the national vote in a landslide. Four years later, Ms. Cooper may have been able to vote for the president after being denied the first time. Ninety-two years later, she may be the only living woman in the country to have had that experience.
It had been introduced 41 years earlier by Susan B. Anthony and Elizabeth Cady Stanton, but sometimes it takes a few decades to move the Overton window towards sanity. ↩
Of course, considering the shocking war on women being waged by the current GOP, there must be plenty of examples of disenfranchisement on the basis of gender. In this post I’m just looking at the timing of the Nineteenth Amendment. ↩
This point is actually a bit contentious. The source I link to seems credible, but I’d like to hear from people who know more about this. ↩
By almost any measure, Jack Andraka, the 15-year-old science prodigy from Maryland, should be a hero of the open science movement. After all, he has gotten a lot of well-deserved attention in the past few months for his work developing a new test for pancreatic cancer. By his own estimates, the test he developed is 168 times faster and 26,667 times cheaper than the existing state-of-the-art test. He says the insight for the test came to him while he was “chilling out in biology class,” and that it was helped along by search engines and free online science papers.
On its face, this is a major victory for open science. The right person was able to find the right materials and combine them in such a way to make some important scientific progress, all because there were few barriers in place to stop him. Even better, he was rewarded for this development immediately, with a bounty much greater than most high school sophomores can expect to see in a year — for his efforts, he was awarded the Intel Science Fair grand prize of $75,000, and smaller category prizes for a total of $100,500.
I want to close it up there, and just congratulate him on being such a remarkable example of the power of open access. But, alas, there’s a hitch. From the long Forbes article about his discovery:
He says he’s been contacted by four companies, including Quest Diagnostics, about potentially licensing or commercializing the idea. “I got a really fierce patent lawyer right after I won ISEF,” says Andraka, laughing, from his home in Maryland.
I have a few problems with that statement. Underlying all of them: why is he even seeking a patent? Patents are Constitutional only insofar as they promote the progress of science and the useful arts. But in this story, it was the lack of restrictions that allowed progress.
A patent would undermine at least one significant component of his discovery. It’s all but inevitable that the impressive savings from his test will be reduced when the cost of lawyers, licensing, and monopoly pricing get factored in. It’s still going to be much cheaper than the existing test, but it will also be less widely available as its distribution is limited by the single point of licensing.
Further, it’s not even clear he’s eligible for a patent since the Supreme Court ruling in Mayo v. Prometheus. That case, decided earlier this year, actually concerned a patent on a medical diagnostic test. The Court held that observations of a natural correlation do not constitute patent-eligible subject matter.
Nobody’s knocking his achievement, and it’s incredibly impressive and good for humanity that Jack Andraka was able to make this discovery. I just wish he’d take a page from the book of the great Jonas Salk, who, when asked who owned the patent on his breakthrough polio vaccine, responded simply:
Well, the people, I would say. There is no patent. Could you patent the sun?
The talks at day one of the XOXO festival have been incredibly high quality: actual innovators and creators of disruptive media and technology have relayed their experiences of eliminating middlemen and charting new territory for success. It’s just amazing to see what a cool group of people have come together for this event.