Elementary, my dear Holmes fans

For a Sherlock Holmes fan, the last few years have been a real treat. The Robert Downey, Jr. movies, the PBS Masterpiece episodes Sherlock, and the CBS series Elementary have breathed new life into the characters and, in the case of the PBS and CBS offerings, have given Sherlock Holmes relevance in a modern world.

What’s more, for the last fifteen years or so, there have been new books written about Sherlock Holmes as a boy (Andrew Lane), Sherlock Holmes working with his female partner and wife (!) Mary Russell (Laurie R. King), untold stories from the files of Dr. Watson (Hugh Ashton), and even Sherlock Holmes in northern Minnesota at the time of the great Hinckley fire (Larry Millett).

I assumed that the extensive new material was the result of the expiration of copyright protection of the original works by Sir Arthur Conan Doyle.  While new stories alone would generally not infringe the original material, the use of the characters would – as long as the original works were still protected by copyright.  

A sometimes overlooked aspect of copyright protection is that granted to the literary character – not every character – but those given distinctive personalities that are developed to the point at which the character’s behavior is relatively predictable. While such protection is most easily understood for characters appearing in multiple volumes, such as James Patterson’s Alex Cross, Stieg Larsson’s Lisbeth Salander and J.K. Rowling’s Harry Potter, there are memorable single-book characters that would also qualify. Think Scarlett O’Hara, Holden Caulfield and Garp.  But when the copyright on the underlying work(s) expire, so goes the copyright protection of the characters.

The character of Sherlock Holmes first appeared in publication in 1887, and anything published before 1923 is likely in the public domain. A good deal of the Sherlock Holmes material was published prior to 1923, so the fact that many of Conan Doyle’s works are now in the public domain would explain the plethora of new material utilizing the Holmes characters, right? 

Not necessarily. A recently filed lawsuit in Illinois federal court suggests that most, if not all, of the recent film and television productions and books have paid royalties to the Doyle estate irrespective of the questionable copyright protection. Leslie Klinger, an author and recognized Sherlock Holmes expert (he served as a technical advisor on the Robert Downey Jr. films) brought the suit against the Doyle estate seeking a declaratory judgment that copyright protection has expired on Sherlock Holmes story elements that establish the essential traits of the characters (even though some of Doyle’s later works are still protected by copyright), thus releasing them into the public domain.

Klinger believed this to be the case with his earlier book, A Study in Sherlock, published in 2011 by Random House, but was apparently overruled by the publisher which entered into a license agreement with the Doyle estate after being threatened with litigation for copyright infringement. Late last year, Klinger was contacted by the Doyle estate which demanded a licensing agreement for Klinger’s new project, In the Company of Sherlock Holmes, and although the parties traded letters, no agreement was reached. Rather than wait for the estate to make a move, Klinger decided to force the issue now.

It is too early to speculate about outcome, but one could imagine the court parsing Holmes’ character to determine what aspects of his persona, if any, were introduced by Doyle in his later works, and thus arguably still protected by the remaining copyrights. Such a result would seem to be so difficult to apply that it could effectively maintain the status quo – reputable writers, publishers and producers would pay for a license rather than undertaking the arduous task of analyzing character elements.

And would that be all bad? So far, it hasn’t precluded new stories and just maybe the claim of the estate’s rights has directly or indirectly had a positive influence on the use of Holmes in the new fiction. One thing is certain—if Sherlock is found to be in the public domain, it won’t be long before we can expect to see him fighting zombies and chasing vampires. 

The Book: Robert Lacey & Danny Danziger, The Year 1000: What Life was like at the Turn of the First Millennium (Little, Brown and Company, 1999)

Why: It’s fun to imagine what the future will look like, but chances are some entrepreneurial inventor out there will come up with something that we can’t even imagine today. 

Kermit Nash’s post earlier this week, touching on how the future looked to us in our youth, led me (via an interestingly circuitous firing of synapses) to think about what I will call the “history of the future.” How have past generations seen the future? Inevitably, the future at any given time must be seen in terms of the present, as some developments cannot be foreseen. The world of the Jetsons is merely an extrapolation on the world as we knew it in the mid-1960s.1

So what did the future look like in, say, the year 1000? As I cast my eye on one of my heaving home bookshelves, out popped The Year 1000, a book I impulsively purchased in 1999 at a Toronto bookshop before heading to the airport for a flight home. My trip was in February. Did I mention I was catching a flight from Toronto? Turns out I was glad to have this lively book to entertain me while my flight was subjected to repeated weather delays.

Anyway, let’s set the stage. In 1000, most adults died in their 40s; someone my age would be deemed venerable indeed. There were no buttons, so clothes were fastened by clasps or tied together. England was still an Anglo-Saxon tribal country, occasionally troubled by Viking incursions in the North.

Agriculture was the basis of the economy. Children were taught, “The ploughman feeds us all.” That’s not to say there was no trade. Trade in wool and other commodities brought wine from continental Europe and other more exotic goods from afar. There was one impediment, though. Numbers were still written in Roman numerals.  Try doing multiplication and division using Roman numerals and you’ll immediately grasp the problem. And there was a perceived limit to how high counting could go. It was thought that 9,000—written as MMMMMMMMM—was just about the highest number (sort of the way we might think about a “Google” today). So accounting was pretty much a nightmare.

Enter a Frenchman, Gerbert of Aurillac, a savvy scholar, churchman and politician recognized as a kingmaker in his day. (Oh, and he also happened to be the Pope, known as Sylvester II.) He made innumerable contributions to the various worlds he inhabited, but entrepreneurs can be thankful for one in particular. He didn’t invent it, but he promoted the use of the abacus (along with Arabic numerals) in Western Europe.

To say that the introduction of the abacus was revolutionary is to give this development short shrift. The use of the abacus eliminated the need to write out figures and sped calculations, boosting the ability of merchants to conduct and track trade. The abacus became the model of the chequered table, which worked along the same lines and became the central feature of the counting house—otherwise known by the Brits as the Exchequer.  As the authors of The Year 1000 tell us, “Its potential effect on the business, intellectual and scientific processes of its time was comparable to the impact of the computer today.”

Gerbert of Aurillac—virtually unknown today—was, in fact, “the first millennium’s Bill Gates.”

1 Unlike that young whippersnapper Kermit, I actually watched this program in primetime during its inaugural 1962-1963 season on ABC.

The Rise of the 3D Printer

I grew up in the era of the Jetsons, Star Wars, and Star Trek—in other words, the modern Sci-Fi era. Our vision of what the future might be was shaped largely by what special effects artists could believably put on the large and small screen.

Ironically, many of the Popular Science and Popular Mechanics magazines that I read back then were continually looking back to the Dick Tracy comics to benchmark how far technology had advanced. We, by comparison, had Roger Moore playing James Bond, which by comparison to the “Star-themed” fiction presented plausible technology. (Who couldn’t envision a watch with a homing beacon?)

The chasm between our ability to envision futuristic inventions and our ability to make them reality was largely the result of the unavailability of tools for making the technology. Now, the advent of the 3D printer finally may bridge that gap and lead to a surge ahead in technology.

For the uninitiated, here’s a crash course on 3D printing. We have all watched the cool commercials where gigantic machining bits zip at fast speeds around a large block of clay or polymer to make, by subtractive process, a model of some sleek new vehicle. The 3D printing process is completely different: the printer recreates images in small layers, building detail to recreate the exact form/image of the design that has been loaded into the printer. (For evidence of the unequivocal truth of my description, see Wikipedia; it’s never wrong…) While I recognize that proper design, engineering and precision is needed to format a 3D printer to make a truly authentic object, the ability to replicate that object quickly and with precision is what is so fascinating. 

The growing captivation with 3D printers reached the global stage last week when President Obama mentioned it in his State of the Union address. Not surprisingly, shares of 3D printing companies spiked (and then fell again on the heels of the POTUS bump.) Companies producing these printers have also elicited some scrutiny because their product can more quickly reverse engineer technology by using more precise 3D and 4D laser measurement tools. Not surprisingly, the prospect of rapid replication has put some manufacturers into a cold sweat and patent litigators into a state of heightened anticipation (Newton’s 2nd law…) These printers have even received some national security attention because of speculation about what else they may be able to do (the creation of certain banned accessories for weapons). 

Alas, the era of putting a 3D printer in the basement or next to your coffee maker isn’t quite here yet. Personal 3D printing is still cost-prohibitive and no company has yet to crack the market with one that you could get with your Best Buy RewardZone™ points. There is, however, at least one start-up company looking to do just that. In the meantime, I found one on eCrater at a bargain price of $34,800. 

Whatever Happened to the Pets.com sock puppet?

Just a couple of weeks ago, we added the newest member to our family, Max, a 2-3 year-old Boston Terrier that we’re adopting through the Minnesota Boston Terrier Club Rescue.  As a result, I’ve been spending an inordinate amount of time (and money) at places like Petco.  As many pet owners realize, the pet business is really big (over $10 billion annually in the U.S according to one source) and growing. Further evidence of this trend can be found by the expanding and deep pet supply sections of stores like Target and Walmart.

Because I can’t help my brain thinking about such things, it got me wondering about whatever happened to the famous sock puppet owned by Pets.com. If you don’t remember Pets.com, it was one of the highest flying and biggest crashing examples of the dot.com bubble in the late 90s. 

The online business was founded in 1998, raised over $300 million in capital, including investments by Hummer Winblad and Amazon.com, went public on NASDAQ, and was in liquidation less than a year later! Not that my investment instincts are always right (I have plenty of capital loss carryforwards to prove it), but I remember at the time thinking that an enterprise focused on selling 40-lb. bags of dog food on the internet and delivering them people’s houses didn’t seem like a business with sound fundamentals. I guess I was right on this one because the stock fell from an initial public offering price in February 2000 of $11 per share to just $0.19 per share 9 months later.

The fundamentals may not have been sound, but everyone agreed that the sock puppet used in the Company’s advertisements (in a campaign designed by TWBA/CHIAT/DAY) was probably the best thing to come out of the entire venture. The puppet made many appearances on national television (including on “Good Morning America” and “Nightline”) and even had a balloon version in the 1999 Macy’s Day parade. You may remember that there was even a trademark infringement lawsuit with Robert Smigel, owners of Triumph, the Insult Comic Dog, but I’ll leave that to a post by one of my fellow entreVIEW authors, Lori Wiese-Parks or Mike Cohen, who are experts in intellectual property.

So whatever happened to the puppet?* It was purchased by an auto loan lead generation company, BarNone (1-800-BarNone), and used in a few advertisements—the Company’s slogan is “Everybody Deserves A Second Chance.” When it comes to making sure your business has sound fundamentals, I’m not sure that the slogan applies…

*By the way, the domain pets.com was purchased by PetsMart.

Top Ten Technology Quotes

This past week Bill Gates appeared on the Today show. They showed a 1992 interview with Tom Brokaw where Gates predicted that “electronic mail” would become one of the “next big things” and expressed surprise that it had not happened sooner.

Here are a few of my favorite technology related quotes including two others from Bill. Try to match the quote to the person (answer key below):

1. Any sufficiently advanced technology is indistinguishable from magic.	A.  Jean Arp (sculptor, painter, poet)
2. It has become appallingly obvious that our technology has exceeded our humanity	B.  Dave Barry (columnist/humorist)
3. Getting information off the Internet is like taking a drink from a fire hydrant.	C.  Arthur C. Clarke (science fiction author)
4. Bill Gates is a very rich man today... and do you want to know why? The answer is one word: versions.	D.  Albert Einstein (smart guy)
5. Be nice to nerds. Chances are you’ll end up working for one.	E.  Bill Gates (Harvard drop-out)
6. All of the books in the world contain no more information than is broadcast as video in a single large American city in a single year. Not all bits have equal value.	F.  Bill Gates (See above)
7. The typewriting machine, when played with expression, is no more annoying than the piano when played by a sister or near relation.	G.  Mitchell Kapor (founder of Lotus)
8. Soon silence will have passed into legend. Man* has turned his back on silence. Day after day he invents machines and devices that increase noise and distract humanity from the essence of life, contemplation, meditation.	H.  Carl Sagan (astronomer/author)
9. Men* have become the tools of their tools.	I.  Henry David Thoreau (author, poet, philosopher)
10. Intellectual property has the shelf life of a banana.	J.  Oscar Wilde (Irish writer and poet)

* What about women?

Answer Key:  1=C, 2=D, 3=G, 4=B, 5=E/F, 6=H, 7=J, 8=A, 9=I, 10=E/F

Lessons Learned from HealthXL Selection Day Event

Last week, I had the good fortune to participate as a mentor in the HealthXL startup boot camp selection day event.  HealthXL is a European-based accelerator program for startups in the health care space.  Startups at the event I attended in Minneapolis were competing for spots in the accelerator program in Dublin, Ireland.

As part of the selection process, each of the teams gave a four-minute pitch of their business plans.  They then had individual 30-minute meetings with each of the mentors.  At the end of this process, the mentors rated the teams based on concept, technology, potential market, team and other factors.  The top teams, based on those rankings, will be invited to Dublin for the three-month accelerator program.

The event was a great opportunity for the companies that participated, as they were able to present to several leading investors, entrepreneurs, business executives and other experts in the health care space.  Even for those companies that don’t get accepted into the accelerator program, that experience and exposure to industry leaders is valuable.   

The event must have also been quite grueling to the company participants.  The mentor meetings, which lasted for much of the day, not only involved positive feedback and helpful insights, but also challenging questions about business plans and go-to-market strategy.  A willingness to have your business dissected and critiqued at that level is one of the reasons I have such great respect for, and enjoy working with, entrepreneurs.  The best entrepreneurs are always challenging themselves and their teams to make their businesses better.

After having witnessed all the company pitches, and having sat through many mentoring sessions, I noted a few things that are important to remember when presenting to investors (or anyone else for that matter): 

1. It is important to be able to concisely describe what your business does, and why you do it.  While the initial pitches were only four minutes long, and not nearly long enough to explain all the facets of your business (market opportunity, executive team, competition, etc.), that should be enough time to explain, succinctly and in simple terms, the problem your business addresses and how it addresses that problem.  If you can’t do that in four minutes, you are not likely to be able to do it in 15 minutes, or 30 minutes, or an hour.  Most of the presenters did a good job of explaining their business and getting me hooked in that short four-minute period.  There were a few though, where after the presentation concluded, I had no idea what the business did.  Even with more time, I likely would have lost interest and started focusing on other things (such as what I was having for lunch or the errands my wife wanted me to run on the way home).  We all have limited attention spans, and if you can’t capture someone’s attention in a few short minutes, you’ve likely lost it forever.

2. Make sure you can explain your business to people who are not experts in your industry.  While most of the mentors at the event were health care experts, I am not.  I work with enough companies in the health care space that I am generally familiar with the issues facing the industry.  But I get lost in the technical jargon common to health care industry experts.  You, of course, need to be able to understand all of the technical aspects of your business and address questions and concerns raised by other experts, and discuss their concerns at the technical level they want.  Your presentations, though, should not assume that your audience has the same level of technical expertise you have.  Just because I don’t have that same level of expertise doesn’t mean that I wouldn’t be interested in investing in your company.

With those reminders, I will say that I was impressed by most of the teams at the HealthXL event, and think they are well poised for success.  A few months in HealthXL’s accelerator program will help them refine the finer points of their business plans and help them get ready to execute their strategy.  Thanks to HealthXL for creating this accelerator program, and best of luck to all the company participants.

Mobile App and Website Necessities – Do You Have Terms of Use and a Privacy Policy?

A few months ago, I received an email from Facebook regarding updates to its “Data Use Policy,” which explains “how Facebook collects and uses data when people use Facebook,” and its “Statement of Rights and Responsibilities,” which explains the “terms governing use of Facebook’s services.” Just this month, I received a similar email from Instagram regarding updates to its Terms of Service and Privacy Policy. This past week, some client disclosures prompted me to review how Pinterest deals with legal liability for copyright infringement via the company’s online Terms of Use.  

As entreVIEW readers probably know, all of these companies have recently experienced negative publicity and complaints relating to the policies they have in place governing the interplay between the company, its users, and content posted to the site (see my blog post from last month regarding the Facebook “furor,” this New York Times article about the Instragram “uproar,” and this TechCrunch article about the “trouble brewing” with Pinterest).

But as we’ve also recently seen, not having these policies in place could cause even more of a headache. Last month, the California attorney general office announced that it is suing Delta for Delta’s failure to include a privacy policy with its mobile application. This is the first of such type of legal action under the state’s privacy laws, but it seems a sure bet it won’t be the last. 

Online data privacy – and the way companies deal with the continually growing mass of rules and regulations related to this issue – has been climbing higher and higher on many businesses’ priority lists. We have seen this trend reflected in our own high-tech practice here at Gray Plant Mooty, as more and more clients are bringing up these issues at an earlier stage and asking us to draft documents that help mitigate their legal risks in this area. 

So what do these documents look like and how can they help your business? The two most common documents used by companies today are a statement of Terms of Use (or Terms of Service) and a Privacy Policy. 

Terms of Use. This document sets forth the rules for a user’s interaction with a company’s site or service. It puts the burden on the user to agree and comply with the Terms (either implicitly by using the site, or by clicking a box), and helps a company control and police its site. Some of the standard provisions typically included in this type of document are:

• Rules for accessing the site or service and account security;
• Guidance on intellectual property rights and infringement;
• Prohibited uses and user contribution standards; and 
• Company disclaimers of warranty and limitations on liability.

Privacy Policy. In contrast to the Terms of Use, which focus more on user responsibilities, this document sets forth the rules related to how the business handles the data it collects from and about its users. Companies must be sure to represent their data collection and use practices accurately, or they could be subject to legal liability. Some of the information typically found in this type of document includes: 

• An outline of the information the site collects about its users, both voluntarily (such as a form submission or post) and involuntary (i.e., through cookies, IP addresses, or global positioning technology);
• How the company uses and may disclose this information; and
• How the company secures this information.

As we’ve learned through witnessing the growing pains of the highly successful social media sites mentioned above, the issues addressed in these types of legal documents are issues that consumers are highly passionate about, and issues to which the law is paying more and more attention. While no amount of documentation can fully shield a business from complaints or problems that may arise in connection with these issues, as Delta – and many of our clients – have learned, it is better to protect yourself than to fly solo in this department. Sorry for the hideous pun. 

A Post by Karen Wenzel, Guest Blogger