Nathaniel Borenstein

A handful of frustrated, well-intentioned, but ultimately misguided souls have declared December 12, 2012, to be the second annual ‘No Email Day’. On this day, they are encouraging people to give their email systems a rest, and concentrate on the so-called "real work" they fear has been shunted aside by the flood of email.

I suppose this might be helpful to those who struggle to manage their own priorities, or who are addicted to their email systems the way their children are addicted to computer games. But even if you agree that many of us have a problem with overuse of email, a one-day hiatus is little more than a gimmick that fails to address any real underlying problem.

The big, complicating truth is very simply stated: email is extremely useful. If you take a day off from your addiction to PlayStation, there are unlikely to be any negative consequences, and you might really have more time for things you consider important. This is true because there is nothing fundamentally important, or useful, in your use of PlayStation. Similarly, a day's abstention from your addiction to alcohol, caffeine, or online porn is unlikely to cause you any new problems (beyond the pain of withdrawal), because these addictions were never productive to begin with.

Giving up email for a day is another matter. You could well miss an important message from a customer, a partner or a colleague. The fact is that in today's world, a huge chunk of our work is done by email. The time we spend on email isn't all wasted -- for most of us, I think, relatively little is wasted. It's the same work we used to do in other ways, made more efficient and collaborative by email technology.

Americans spend an average of 2.5 hours per day in their cars. During this time, they can't generally read or type, and they converse on the phone at their own peril. But a "no car" day would turn most people's lives upside down for no reason. They couldn't get to or from work, they couldn't pick up their kids at school, and they couldn't go to the grocery store or the fast food drive-through. For most people, spending 1/7 of their waking hours in a car isn't a problem, it's a convenience or a necessity.

Email isn't really all that different. Many of us now spend more than half our work day sending and receiving email, but somehow our jobs are getting done, generally more efficiently than in the pre-email era. The average employee isn't spending much time on frivolous, non-work email, but is instead being more productive than he / she could be without email.

I'm not saying there mightn't be problems with the way your company uses email. Just as it might make sense to move closer to work and use your car less, it might make sense for you to pick up the phone sometimes rather than type another email. But a one-day boycott of an essential technology won't solve anything; the problem will return the next day, slightly worse for the addition of a day's backlog. It will no more fix your email frustrations than a day without alcohol will fix the problem of drunk driving.

A day without email in today's world is about as meaningful as a day without typewriters fifty years ago, or a day without pen and paper a bit further back. In each case, the technology isn’t the problem, and can be used wisely or foolishly. The energy going into "no email day" could instead be devoted to using email more efficiently. This can be done with a host of techniques, both technical and operational. But no course in how to make better use of email is likely to recommend a day of abstinence followed by a return to the status quo.

If email takes up a huge portion of our day, that's because it’s the most useful way for us to get many things done. I've no doubt that it can be frustrating and inefficient for some tasks, but the answer is to learn to use it better, not to take a day off and then return to business as usual.

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I keep saying that I'm done writing about the silly but persistent idea that email is dying.  In a rational world, the simple fact that email use continues to grow rapidly -- though perhaps not as rapidly as a few years ago -- would be enough to debunk this once and for all.  But as the rhetoric in recent elections reminds us, we do not live in a rational world, and I can't resist connecting the dots between some recent email-related irrationalities.

The latest sign of life in this supposedly dying technology is the announcement that Twitter -- one of the social media technologies most often claimed to be helping cause the death of email -- has added a new feature:  the ability to easily resend tweets by email.  Now, the folks at Twitter aren't being inconsistent at all here, because they've never, to my knowledge, been among the folks pushing the "death of email" meme.  But it may be time for people to stop using Twitter as an explanation for email's anticipated demise.

This comes on the heels of a similar development at Facebook, though in that case Facebook was itself culpable for the silliness.  In 2011, several Facebook executives, including Mark Zuckerberg, publicly predicted the death of email, only a few months before Facebook rolled out its own email service.  In retrospect, it was rather like a pregnant woman predicting the end of babies -- it's hard to guess what they were thinking when they said it.

Then there is the famed case of Atos, a company whose CEO declared email a productivity killer, and proclaimed a goal of making the company email-free within a year.  A year later, they were proudly proclaiming success because they'd cut email volume by 20% -- almost certainly a good thing, but not quite what was promised.  It's as if an irate leftist dedicated himself to removing Chris Christie from office, and later touted his success at helping the Governor lose weight.

Why does this sort of thing keep happening?  I think it all comes down to two key factors:

-- We are extremely, irrevocably dependent on email technology, broadly defined.

-- And we hate many things about it.

Email has woven its way into our lives to the point where many of us spend more than half our work day reading and sending email.  That can feel like a time waster to those of us who remember when work was more than email, but in fact the reason we spend so much time in email is that we're getting so much of our work done there.  If it's the most efficient place to get our work done, spending more time at it is a good thing, not a bad one.

But still, we hate email, in part because it's easy to get sucked into non-productive work, and in part because email is so complicated -- as I've said here many times before -- that it's full of traps and pitfalls for the unwary.

And, it turns out, for the wary as well.  After 100,000 years using email -- 32 in decimal -- I still occasionally "reply to all" when I should reply to sender, and make other rookie mistakes.  But I'm in good company:  a silly email mistake is a major reason for David Petraeus' recent resignation as director of the CIA.  And from the other side of the fence comes the news that using "CC" instead of "BCC" has effectively made the Taliban's entire mailing list public!

I would presume that in this day and age, anyone who gets to be a top general and CIA director (or a leading international terrorist!) must be fairly sophisticated about security and privacy in electronic technology.   And General Petraeus was surely aware of how Colonel Oliver North revealed the whole covert Iran-contra scheme through his lack of sophistication about email backups.  Yet somehow Petraeus convinced himself that, by sharing an account with his mistress and leaving each other messages as "drafts" rather than hitting the send button -- a technique that USA Today gleefully referred to as a "common email trick" -- he could avoid being. found out.  Did General Petraeus think that the techniques his own agency used to investigate terrorists couldn't be used against him and his mistress?   More likely he didn't stop to think about it at all -- at least, not with the right organ.

Now, if anyone alive today has the right to hate email, and to hope fervently for its death, General Petraeus and Colonel North have to be near the top of the list.  But I strongly suspect that neither of them has missed a beat, and will continue to use email heavily for the rest of their lives.  There's simply no better alternative.

So is there any hope at all, or are we simply doomed to suffer the miseries of email's negative side?  Perhaps surprisingly, I'm rather optimistic.  The things people hate about email are, for the most part, easily approached as separate problems, which means that we can make progress on them one at a time.   That's one of the basic premises behind a company like Mimecast:  we provide a range of services that are designed to decrease the hassle and the risk in using this powerful and essential medium called email.  We may never fix all of the problems, but we (and our customers) look forward to steady incremental improvements, year after year.  Email isn't dying, but it could certainly use our help in losing the undesirable extra weight it has put on over the years.

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Patent trolls, known to the legal community as Non-Practicing Entities, or NPE's, are perhaps the most broken part of the whole dysfunctional patent system.  Put simply, NPE's are companies that have essentially no assets other than patents, and no business activity other than patent lawsuits.  This kind of company is particularly pernicious because, since they do nothing productive, there is generally no grounds for a countersuit.

In my recent article about software patents, I hope I made it clear that I despise the current system, even as I explained why it is a mistake for a software company to simply avoid the patent morass on principle.  In that post, I focused on the situation in which one company is wielding patents as a weapon against a competitor.  But as costly and unproductive as that situation can be, there's actually another common kind of patent battle that is even worse:  the attack of the trolls.

When Google found out that Apple was suing them, they quickly went on a multi-billion dollar bender, buing patents in bulk from companies like IBM and Motorola Mobility (actually buying the latter company in its entirety simply for its patents), and using them to countersue Apple.   But if Apple had sold its patents to an NPE, and the NPE had sued Google, it is unlikely that Google could have found any patents that the NPE might be violating.   NPE's have an advantage in the patent wars simply by virtue of being unproductive parasites.

This is not, to say the least, what the patent system was intended to achieve.

There is at least a coherent case to be made that Google has infringed on a patent owned by Apple, and that such infringement was determinental to Apple, and vice versa.  These are companies that make competing products, and helping them protect inventions from each other is more or less the raison d'etre of the patent system.  (It doesn't work well for software because inventions can be very small, and products can incorporate hundreds of them, but at least the basic idea is coherent, and the ability to countersue helps level the playing field a bit.)

However, it's much harder to conceive of any rationale that justifies a third party company (NPE) suing productive companies that can't sue them back.  A company that is sued by an NPE faces a Faustian bargain:  the company can fight back in court, spending a large amount of money with no certainty of winning, or it can settle with the troll, usually for a much smaller amount.  This is almost always possible because the troll's business model is NOT to spend endless time in court, litigating its patents, but rather to extort from its victims the largest possible sum that they will spend to avoid going to court.

A typical scenario would go something like this:  A troll sues your company for violating a patent -- perhaps utterly bogus on its face -- asking for two million dollars in "damages."  Your technical folks are chomping at the bit to strike down the bogus patent.  Your lawyer tells you that he's happy to fight the troll for you, but it will probably cost three million, with no certainty that you'll win.  Then the troll offers to settle out of court for half a million, you bargain them down a bit further, and you settle.  Your company is out hundreds of thousands of dollars, and this ransom money goes down as productive income in both the troll's books and in the government's calculation of the Gross Domestic Product.

This has probably happened to a majority of companies above a certain size.  It is an unfortunate cost of doing business under our current patent regime.

For my part, I think the scourge of patent trolls could be eliminated with one small change in patent law:  a patent owner should only be allowed to sue for violation of a patent if they are themselves using the patent in commerical activity.  This would destroy the trolls' business model, assuring that all patent lawsuits would have to resemble the Apple/Google battle, a wasteful but somewhat balanced legal war between two commercial competitors.

It's a sad comment on our current system to view that as an improvement, but it would be.  Sadder still is how unlikely it is that such a change might come about.  Patent-holders in general tend to support the rights of the trolls, because eliminating trolls could drastically reduce the market value of their own patents. These large patent-holders have an outsized influence on the making of patent laws.  Thus patent reform to eliminate the trolls is unlikely to happen, in spite of -- or perhaps because of -- it being simple common sense.

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Trash software patents

People who work in information technology are remarkably unified in their attitude towards software patents:  for the most part, they simply hate them.   There are a lot of good reasons to hate software patents, and not too many to like them.  Software is tremendously different from the kind of invention for which patent law was designed.  The Hacker Ethic simply disdains software patents.

The consequences of fitting the square peg of information technology into the round hole of patent law are endless lawsuits that cost companies millions or billions of dollars, and tend to ensure that no one company can make the best possible product, because there are always features that some other company has patented.

It's not surprising, then, that a lot of technical people, in particular, want nothing to do with software patents.  They prefer to keep their hands clean by simply avoiding the issue, but unfortunately there is no guarantee that they will be able to do so.  Ultimately, if another company sues you alleging a patent violation, you need to craft a legal strategy in response.  The only likely effect of a previous posture of purity will be that you are utterly unprepared to react defensively.

I believe, with the most radical of hackers, that software patents should be done away with.  But I work in an industry where they are ever more important, and I have a responsibility to my investors, not to mention my colleagues, to be as prepared as possible for any eventuality.  Competing in the software industry without a patent strategy is like walking onto a battlefield with neither body armor nor a weapon.  An intelligent pacifist stays off the battlefield, and a conscientious objector to software patents would do well not to be a decision-maker in the IT industry.

Consider the current epic battle between Apple and Google and its allies.  I know that a large number of programmers at Apple are embarrassed by their company's aggressive use of patents, and that Google programmers regard the whole thing as an abomination.  But as long as the battle is going on, refusing to help advance the company's patent strategy would be viewed as tantamount to treason.

Employees of such large companies know that they're trapped in the system, because their employers make their obligations perfectly clear.  Independent IT professionals, as well as employees of many small companies, have more of an option, and can choose to boycott the whole process.  But they're fooling themselves if they think that they've avoided being trapped in the system.  They're just as trapped, but with a different role to play -- they're the foolish unarmed civilians sitting around undefended, hoping the battle doesn't come to them.

As much as I despise the current patent system, I see very little hope that it wll be substantially reformed any time soon.  That means that, for the foreseeable future, my company -- like nearly all others -- runs the constant risk of being sued over a software patent which, no matter how bogus, is presumed valid by the law and which can only be overturned with millions of dollars of litigation.

Because the best defense is a good offense, I believe that all small software companies should begin to amass a patent portfolio of their own.  If it's used offensively, to my mind, that's a violation of the Hacker Ethic and of the ethics of most programmers.  But if it's used defensively -- in retaliation when you've been sued -- it's simple self-defense.  Those who absolutely refuse to play the patent game, while competing in the software industry, have their heads in the sand, and are doing a poor job of fulfilling the trust of their investors.

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