Broken Symmetry

Why don't VC funds employ in-house lawyers to do work for portfolio companies?

A while back, Jason Mendelson wrote a great post about his frustration with "startup lawyers," by which he means outside counsel who work on transactions relating to portfolio companies.  Like many consumers of legal services, Jason is frustrated with a trend toward lower quality and higher cost.

I don't want to get into the discussion of what trends have emerged and why here.  Rather, I want to ask the question of why more VC funds haven't hired outside counsel to come work in-house doing work for portfolio companies.

Benefits:

• Lower fees from outside counsel, probably more than offsetting the salary cost
• Better quality services from outside counsel (higher bandwidth communication, especially when it's with a former colleague)
• Less worry about the billable hour clock by the in-house lawyer, which means more efficient allocation of time to various legal problems
• Lower cost to lawyer spending time on-site with portfolio companies to proactively avoid legal problems
• Lawyer also available for consulting on fund-related issues when not needed at portfolio companies

Disadvantages

• Requires outlay of cash-flow from management fees to cover salary
• Agency costs that could result from soft kickbacks between in-house lawyer and outside counsel (relatively easy to reduce with monitoring)
• Misalignment of incentives between lawyer and portfolio companies because salary is paid by VC fund (but this one is shared with the VCs!)

Note that nobody could eliminate outside counsel because of the superior access to information about new case law, unusual market scenarios, the database of internal legal documents built up over years for use in a variety of client matters, lower cost ability to generate stock ledgers, etc.

Often, VCs invest millions of dollars into a new round of financing, only to demand that the startup company turnaround and pay outside counsel for the tens of thousands of dollars in costs of advising on the transaction.  I understand why this is done from an accounting perspective.  But it is not so cost efficient.

Are there too many ideas... or not enough (good ones)?

Anybody who has spent time working in venture capital in Silicon Valley, almost no matter how short, has observed that it is common for multiple teams to be pitching the same startup idea at around the same time.

The conventional wisdom, accepted by nearly every venture capitalist that I've ever heard, is that this is evidence that ideas are cheap, and that it's the team and execution that matters in separating the winners from the losers.  If the supply of ideas is fixed and inelastic, then the team of entrepreneurs and investors that can make the best use of that inelastic supply will end up winning markets over the long haul.

But I have literally never heard any venture capitalist ask what seems to me like an obvious question given the undersupply of ideas relative to the teams available for execution -- namely, how can we increase the supply of ideas?

Now some of the venture capitalists -- particularly the small minority that have succeeded despite the drastically limited supply of ideas -- are likely to respond that the teams not funded are better off doing other things.  I'm not so sure about that.  I like the idea of more ideas, more startups, more innovation.

In fact, I think the great strength of the United States has been its encouragement of inventors and entrepreneurs.  Perhaps everybody would benefit if the differences between the supply of ideas and the supply of execution talent were more readily distinguished, and the supply of ideas got more funding.

The difference between Venture Capital and Venetian Capital

To a thoughtful student of European history, Silicon Valley of the 21st century might cause deja vu.  For there was another culture and place in which entrepreneurs and financiers lived within a small radius of one-another, and were constantly bumping into one-another at social and business gatherings: 15th century Venice.

• Venice was isolated from Florence, Rome, and Constantinople in much the same way that Silicon Valley is isolated from New York, Los Angeles, and Washington, D.C. today.
• Venice was geographically limited in its extent by the lagoon in much the same way that Silicon Valley is limited in its extent by the mountains and San Francisco Bay.
• Venice was home to an aspiring group of artisans who had something to prove to the elder statesmen in Florence and Rome in much the same way that Silicon Valley is home to entrepreneurs with something to prove to the CEOs, investment bankers, and politicians in New York and D.C.
• Venice was home to a network of merchant bankers, many of whom knew one-another personally and shared in the burden of diligencing investment in much the same way that Silicon Valley is home to a network of venture capitalists who know one-another and share in the burden of diligencing investments in new ventures
• By the mid-15th century in Venice, most of the prominent merchant bankers knew who the best artisans were, and were happy to work exclusively with those artisans on deal after deal much as Silicon Valley venture capitalists are happy to work exclusively with the same serial entrepreneurs on startup after startup.

But there is one way in which Silicon Valley differs from 15th century Venice, which went on to spread its technology and art throughout Europe in the centuries thereafter:

• Venice, unlike Silicon Valley, was home to the birth of patent law in the late 15th century.

The Venetians were smart enough to realize even in the 15th century that they would have to feather the nest for new artisans and inventors in order to ensure that a pipeline of new art and technology kept flowing freely. Not coincidentally, when Venetian glassworkers carried their new technology with them to the rest of Europe, they carried also, like the fire of Prometheus, the idea of a patent system.

Summing Up: Feathering the Nest for Inventors

Sensible patent reform should focus on feathering the nest for inventors in the United States.  There is nothing more important to our long-term prospects within the global economy.  To summarize the posts made this week:

IP is a limited exclusive right to an inventor's time, not a limited exclusive right to a thing.  I.e., IP is Not an Asset.  Lawyers, business people, and politicians should consider how the patent law will affect the activities of inventors.  A plugged R&D pipeline can lead to Stranded R&D and an exodus of inventors from the United States.  We would promote the progress of arts and sciences better by building legal and financial institutions that recognized the benefit of a division of labor between inventing ideas and building things.  This is What Adam Smith taught the Founding Fathers.

IP is not an Asset: Patents and Inventors Need to Stick Close

Earlier this week, Peter J. Wallison argued that conventions in fair value accounting may in part be the cause for the recent bubble markets.  Specifically, Wallison pointed to the convention (implemented under FASB 157) that requires assets to be carried at "market" values, even when those assets are not being held for trading purposes.

Almost any scientist or engineer would immediately have recognized the truth of this argument.  Our understanding of any system -- chemical, electrical, mechanical, or financial -- will be limited in part by the accuracy of our tools of measurement.  When one considers how FASB 157 required banks to report the values of MBSs, CDOs, and CDO^2s on their balance sheets far above what the banks would themselves have been willing to give away for the same assets, one understands how the financial markets quickly lost track of the intrinsic value backing the securities traded.

This wisdom has direct relevance to the secondary markets for IP.  Most of the firms now in the secondary markets for IP have taken the view -- and are conducting their businesses -- as if IP were an asset.  This is because IP does bear some characteristics of an asset.  Namely, like real and personal property, IP can be protected through exclusive rights.  The analogy to property has thus come to dominate our understanding of the nature of IP.

Although accountants often treat IP as an asset, IP is not a commodity.  IP is more like equity, although it is not like other equity.  IP is a limited exclusive right to human capital (namely, to inventors' time solving a technological problem).

Maybe part of the reason that Abraham Lincoln understood the importance of patent law is because he understood that human capital cannot be owned.  The photograph shows the Emancipation Proclamation, whereby Lincoln did more for the cause of freeing human capital than many other men together have done in the course of human history.  Lincoln loved the patent system because he understood that it too could lead to more freedom.  Scientists and engineers work best free from the immediate demands of business people and customers.  The idea of a patent system carries within itself the promise of more innovation and more freedom.

POSTSCRIPT: Please note that I do not believe that inventors are literally enslaved right now.  There are obviously huge differences between the enslavement of millions of black Americans and the metaphorical enslavement of inventors who are now forced to do work other than inventing because of the broken patent system.  I do, however, believe that making people more free leads always to a multiplicity of unanticipated social benefits.

What the Founding Fathers knew about R&D that we have forgotten

As evidenced by his lecture on discoveries and inventions, Abraham Lincoln had a deep understanding of the patent system.  It is amazing how his lecture, which is now well over 150 years old, can seem so fresh today.  He and Charlie Munger have inspired me to undertake a historical review of other important lessons of the imminent dead.  Today the lesson is from Scottish enlightenment thinker Adam Smith, famous for his authorship of The Wealth of Nations. I must shamefully admit that I have thus far been unable to make it through the entirety of his treatise.  I have nonetheless been the beneficiary of the wisdom of Adam Smith through the help of editors, from whom we have the following excerpt:

To take an example, therefore, from a very trifling manufacture; but one in which the division of labour has been very often taken notice of, the trade of the pin-maker; a workman not educated to this business . . . nor acquainted with the use of the machinery employed in it (to the invention of which the same division of labour has probably given occasion), could scarce, perhaps, with his utmost industry, make one pin in a day, and certainly could not make twenty. But in the way in which this business is now carried on, not only the whole work is a peculiar trade, but it is divided into a number of branches, of which the greater part are likewise peculiar trades. One man draws out the wire, another straights it, a third cuts it, a fourth points it, a fifth grinds it at the top for receiving the head; to make the head requires two or three distinct operations; to put it on, is a peculiar business, to whiten the pins is another; it is even a trade by itself to put them into the paper; and the important business of making a pin is, in this manner, divided into about eighteen distinct operations, which, in some manufactories, are all performed by distinct hands, though in others the same man will sometimes perform two or three of them.

Adam Smith goes on and on from here about the many benefits of the "division of labour."  Although controversial in his day, the benefits of "the division of labour" are in our day a fact so well-accepted by the majority that many people seem unaware of the history of this idea.  We seem to assume it a logical consequence of any business. That it is not.  In each case in which a division of labor is successfully implemented in business, there was first an entrepreneur who saw the benefit of separating one task into two.  Henry Ford brought the magic of divisions of labor to the production of cars through the assembly line.   Most people can't imagine this, but before him others probably scoffed at the idea that something as complex as a car could ever be assembled without a single person overseeing the entire process.

Are we not still scoffers?  In the United States, we now live in an age in which most lawyers, business people, and researchers believe that R&D and early-stage product development are incapable of being done by two teams.  The fact remains, however, that the best inventors and the best startup CEOs are not often the same person.  And the best R&D and the best product development tend to occur in different environments.  We have strained for the past twenty-years in the United States to force inventors into the role of entrepreneurs, and entrepreneurs into the role of inventors.  Being a hardworking nation, we have not been entirely unsuccessful.  But how much more successful might we be were we to accept once and for all that there is an efficient division of labor between R&D and commercialization (yes, even the "commercialization" done by startups)?

The patent system is the most sophisticated and efficient means for implementing a division of labor between R&D and commercialization ever conceived by humans.  It is by cutting back at patent rights in the United States that we have inadvertently forced inventors to become entrepreneurs and entrepreneurs to become inventors.  Let us not further disintegrate the division of labor between R&D and commercialization by weakening our patent laws in 2008.  Let us recognize that good inventors and good startup CEOs are not always (or often!) the same person.  Let us "promote the progress of science and the useful arts" in the ways our Founding Fathers intended, by a division of labour between R&D and industry.

Stable Market Design with Control Theory

Earlier this week, I had a vision of how analog circuit design theory could have provided some useful insights into how to avoid bubble markets.  I haven't found too much on this from googling, although this paper looks pretty close from the abstract (I don't have a subscription so can't verify whether they're actually thinking the same way).

The field that physicists and applied mathematicians call Control and Dynamical Systems has basically developed to aid engineers in building systems that use feedback to stabilize the state of any system that goes through cycles.  There are lots of things that machines (like the stealth fighter) do that humans would not be able to do because of the magic of feedback-stabilized oscillation.

The implications that this has for business cycles in public and private markets is so obvious that I'm quite certain that somebody already knows how to do this.   Alas, they're probably making boat loads of money on it as we speak.  Another problem worth solving is how to give incentives to such people to share their insights through something other than bidding or asking price.  (Actually, granting patents on financial engineering innovations isn't a bad way to do this.  But a two-decade term would be overkill in most cases.)

In the interest of aiding translation between physicists and economists (and hopefully help avoid yet another major bubble in our financial markets), I'm going to identify the simplifying assumptions that I think are most useful in modeling markets with control theory, and then offer a few extremely crude observations about the potential benefits of applying this theory.  I'll use electrical engineering terminology to show the relationship between the variables.

* Price can be modeled as a two-dimensional current signal in time and demand P = P(t, d)
* Price changes will be amplified by bundling supply and demand (e.g., through securitisation) so that P = A*P where A is either less than 1 (supply bundling) or greater than 1 (demand bundling) depending on whether buyers or sellers are being aggregated by a particular security.
* Transactions cost can be modeled as resistance (and Price * Transactions Cost will approximate Demand)
* External money supply can be modeled as capacitance (which will introduce a phase lag into price)
* Liquidity can be modeled as inductance (which also introduces a phase lag into the price)
* Demand can be modeled as voltage

For purposes of this model, I'm assuming that the external money supply obeys some predictable rules (like Taylor's Rules).  The system is going to be extremely indeterminate if the external money supply doesn't behave in predictable ways.  (There's a useful result right there!  Let's implement Taylor's Rules.)

From my very crude understanding of theory, this kind of model would permit the following predictions to be worked out from the nonlinear differential equations that govern such a system:

* Systems that include both inductance and capacitance (i.e., external money supplies and liquidity) are going to oscillate at a characteristic frequency.  That frequency is the "resonance peak," and it's amplitude will vary depending on the amplifiers.  If they're too strong, the circuit blows up.

* Systems that include large inductance but low capacitance (i.e., liquidity but no external money supply) are going to decay exponentially to zero price

* Systems that include mostly positive feedback (i.e., amplify demand without inverting or phase shifting the input signal) are going to increase exponentially (until they blow up).  (This was Monday's insight.)

* Systems that are tuned to include just the right amount of positive and negative feedback are going to oscillate stably within a limit cycle for long-periods of time.  In fact, such systems will "magically" self-correct price to demand.   Actually, this is most markets, most of the time.  We just haven't been paying enough attention to the bigger picture.

Somebody out there must have done some graduate school research on this topic.  We should send them to Bernanke and hope for the best.

UPDATE: Thanks Google.  Here's Steve Fairfax of MTechnology making a similar point.  And here's Donald D. Hester and D.L. Brito making a similar point... in 1974!  Do we ever learn?  (Don't answer that.)

UPDATE2: Here's a book on "Economic Dynamics" with a whole section working out a version of control theory applied to a more complicated model.

UPDATE3: I've worked out a numerical example with estimates for the subprime mortgage market here.

Fermi and Founders

"There are two possible outcomes: if the result confirms the hypothesis, then you've made a measurement. If the result is contrary to the hypothesis, then you've made a discovery."

- Enrico Fermi

Around Silicon Valley, early-stage venture capitalists tend to agree: invest in teams and markets, not business plans.  Why not business plans?  Because plans have to change, and sometimes drastically, in order for a new business to succeed.

In this sense, the character of a company's founders is much more important than a particular business plan.  The process of thinking through, writing out, and pitching a business plan causes founders to become more committed to their ideas psychologically.  It takes founders of extraordinary character to have both the courage to ignore criticism that is not well-founded, and the humility to listen and learn from criticism that is.  Not coincidentally, it is the same characteristics that make for the best businesses.  Good businesses have the courage to ignore the customers who will never find value in their product or service, but listen and adapt to the needs of the customers who do and will.

Enrico Fermi was one of the last great physicists to do both theory and experiment.  There's pretty much a division of labor between these in physics now.  According to legend, Fermi would wake very early in the morning and work out on paper the expected results of his experiments.  Then he'd go into the lab and produce data until he'd satisfied himself that he had done his calculations correctly.

Is it any wonder that he seemed to have more insights?

Stranded R&D

In 1980, Congress passed the Bayh-Dole Act.  Overnight with its passage, universities and government-funded R&D labs gained a comparative advantage in funding R&D.  Universities and government labs have a cost advantage in that many had already spent tens of billions of dollars setting up research labs for non-commercial purposes, including teaching and curious exploration.  Many scientists and engineers found the prestige of academia, and the increase in professional freedom it promises, a compelling offer.  The result has been a gradual shutting down of corporate R&D labs, and an expansion of industry collaboration with scientists and engineers now employed by universities and government labs.

Many people think of the Bayh-Dole Act as an unmitigated success story.  Several multi-billion dollar technology companies that are now household names (such as Genentech and Google) started in graduate school research labs.  Many inventors are happier in the more collaborative environment that academia offers.  Collaboration is an under-appreciated driver of innovation.

Unfortunately, so far universities have underperformed private benchmarks for the successful transfer of technology.  Despite spending almost an order of magnitude more on R&D (about $50 billion), the AUTM reports only about a factor of two more revenue from R&D (about $2 billion) than does IBM (about $1 billion on about $5 billion in R&D) over an overlapping period from the mid-nineties to the mid-zeroes of the present decade.  Although it is tempting to attribute the difference in returns entirely to the diversion of R&D funding into pure science (an attribution that ought to silence the Bayh-Dole critics who favor pure science), it is important to remember that there was a net inflow of the most productive researchers from industry into academia over the same period of time.  This concentration of the brightest minds of science and engineering within academia would probably have led to a faster increase in returns from R&D if there weren't something else going on.

And there is something else going on.  The costs of licensing and litigation of patents has skyrocketed over the same period of time.  The biggest reason for increasing costs has been the inelastic supply of patent lawyers relative to the exploding demand for their services.  Unlike patent prosecution, which can be done by non-lawyer patent agents and examiners, patent licensing and litigation are services that require a state bar license (and the three years of ABA-accredited law school that this usually requires).  Law firms are struggling to meet demand by increasing starting associate salaries (patent boutiques started the chain reaction in both instances over the past ten years), but the corresponding increase in associate to partner ratios at most law firms (necessary to keep profits-per-partner high and retain top partners) has led to a decline in the quality of services overall.

It is worth noting that many technology transfer offices are staffed by non-lawyer scientists and engineers with formal or informal business training.  Many of these employees are probably undervalued by the legal services market because of their lack of state bar credentials.  Seeing the value, university tech-transfer offices and other government and private firms not constrained by state bar requirements are scooping these types of employees up.  Non-lawyers will probably play a growing role in R&D funding and technology-transfer going forward, even in providing "legal" services.  The investment banks (such as Altitude Capital) and venture capital funds (such as Intellectual Ventures) that have recently entered the secondary market for patents are early signs of this trend.

The result of these macroeconomic trends in R&D is a market in which many startups and smaller companies are realizing only a fraction of the intrinsic value of their R&D.  Technology is stranded in later-stage startups and other small private companies that are not eligible for further venture capital financing, acquisition, or IPO.  Problems in the credit markets and the passage of the Sarbanes-Oxley Act have further exacerbated the problem for these companies in the acquisition and IPO arena.  In effect, the United States is piling up a vast, invisible junkyard of stranded R&D that could be socially valuable if placed into the hands of the right owners.

As the returns to investment in R&D decline, so too do the number of jobs available for researchers outside academia.  This is a problem that is vital to the health of the U.S. economy within its global environment.  If current trends continue, there will be more Ph.D. engineers living in China than in the U.S. by 2010.  The number of U.S. patents issuing to foreign entities is already nearly equal to the number of patents issuing to the U.S.  If the U.S. were to strengthen its patent system, we would be far better positioned than any other nation in the world to bring the power of market-based incentives to bear on the problem of attracting the most talented human capital -- the single most important problem we face in our long-term prospects for economic growth.

People are starting to recognize these problems.  Recently, the Brookings Institute has called for the government to setup a National Innovation Foundation.  But aren't the market-based incentives of a strong patent system a better way for the government to encourage R&D funding?  Although a handful of firms, including Intellectual Ventures, Ocean Tomo, and other new entrants are struggling to meet immediate needs, the inventors and startups most in need cannot afford to hire anyone to answer the lobbyists hired by the large corporations that are net payers of patent licenses (when forced to pay at the end of protracted litigation).

Although the big picture of innovation is so large and complex that it is difficult for most people to understand, the solutions are actually simpler and easier than most would imagine.  First, the patent laws should be reformed in ways that would promote private settlements of disputes over patent infringement rather than litigation.  Some recent changes to the patent law have been beneficial in this regard, and some detrimental.  Unfortunately, the Supreme Court's recent holding in Medimmune makes it harder than ever for inventors to get to the table with large corporations without ending up in litigation.  And after Mercexchange, startups and independent inventors do not have the threat of an injunction to keep licensees at the bargaining table when those startups and inventors have failed to find funding to themselves commercialize the technology.  Neither of these by themselves is fatal.  The threat of injunction was no doubt abused by opportunistic speculators from time to time over the past few decades.  But not in decades has it been more difficult for investors in R&D to see a return through patent licensing.

Second, if the government is going to provide funding to solve these problems, that funding might best be used to lower the barriers to entry for the practice of patent law.  For scientists and engineers, especially those who understand business, the opportunity costs of wages are probably much higher than the costs of a law school education.  Public funding of scholarships for scientists and engineers who intend to study law would over time decrease the transactions costs associated with patent licensing, and gradually decrease the amount spent on litigation as it becomes easier and easier for opposite parties to reach agreement on differing valuations of a technology.

Third, institutional investors should consider allocating a larger share of their funding to hiring more employees for their technology transfer offices now, and later for investing in private equity funds that specialize in R&D investment.  The technology transfer offices are now overwhelmed by the demands on their time in many cases.  As a result, they tend to focus on the biotech and pharmaceutical inventions that are likely to provide the largest payouts, ignoring the many other areas of R&D that could nevertheless have a transformative impact on our society.  In terms of private equity investments, over the short-term the lack of licensing revenue is going to impede the returns for these funds.  But restarting the R&D engine of economic growth is going to require the public and private sectors to work together.

These are complex problems that it will take teamwork to solve.

Update: Silicon Valley never fails to disappoint in its farsightedness.  Jaisen Mathai, Michael Arrington, and Stu Phillips are all groping around the edges of the problem.

Update 2: I was recently asked whether the figures for IBM and AUTM include capital gains from equity.  The answer is no, neither do.  I have seen no evidence and have no reason to believe, however, that the AUTM should be seeing larger returns from equity on its R&D than IBM.  So the larger point about relative efficiency in technology transfer seems still to be sound.

Rebundling Ownership and Control of Patents

On Friday I attended a panel on the "State of the Legal Profession" held at Stanford Law School.  The panel was well-designed, with a variety of perspectives from lawyers in-house, at law firms, in academia, or in public interest.  It's hard to get six lawyers to agree on anything, but it seems that everyone more or less agreed that the traditional law firm business model is not holding up well in the 21st century.

There are many reasons for this, one of which -- the inaccuracy of the billable hour as a metric for the value of legal services -- I've discussed in a previous entry.  Another reason that was obvious after hearing the panelists is the relatively inelastic supply of talent graduating from law schools every year.  That pool of talent hasn't grown much in decades, even as the demand for legal services has exploded.  Public interest advocates are seeing more and more people opt for pro se representation in court or no representation in transactions (see, e.g., subprime mortgage lending).  Law firms are raising salaries higher and higher to attract talented associates, but also increasing leverage (i.e., the ratio of associates to partners) in order to continue attracting talented partners (profits-per-partner being a key metric for partners in deciding where to work).  Meanwhile in-house counsel is facing increasing pressures from company management to keep down the costs of legal bills as global competition narrows the margins on products and services.  Another time I may elaborate on how some big law firms are beginning to resemble a Ponzi scheme in this regard.  And anyone keeping tabs on the credit market knows how ugly deleveraging can get.

So what can be done?  There's no choice for now but to get more efficient with the supply of talent that we've got.  My earlier post gave a suggestion for how more efficient incentives could reduce costs for certain kinds of transactional work.  But it didn't elaborate on how rebundling of ownership and control is capable of solving a whole class of principal-agent problems in legal services.  A similar solution could be used by many companies to reduce the costs of procuring and enforcing patents.

The basic contractual framework for accomplishing this is simple, although the practical execution is difficult, requiring human capital with a high-level of expertise in three different, (now) weakly-overlapping professional disciplines.  Instead of paying a law firm by the hour (or paying a high fixed-rate) to prosecute patents, clients could pay a much lower (or zero, or negative) fixed-rate for their work, and then give them a slice of any future royalties earned on the portfolio.  Lawyers who (a) believe in the value of their services, (b) understand the technology patented, and (c) believe in the prospective value of the market that the patents are meant to cover should be willing to accept lower rates in exchange for a slice of future profits.  The trouble is that there just aren't that many lawyers who understand law, technology, and venture capital investing.  And the ones that do (think of senior partners at big law firms) generally are too comfortable with the status quo.

Not every company is going to feel comfortable with doing things differently, especially if the current system is meeting their needs.  Nonetheless the potential is there for forward-looking clients and entrepreneurial patent lawyers to innovate on the traditional business model, and maybe even lead the way into a better model for legal services in every market.

UPDATE: Thanks to IPKat I have learned that the French bar is in the middle of a protracted struggle to keep scientists and engineers out.  Not surprising, but comforting to know that we're not the only ones with this problem given the implications that our excessive domestic regulations have for the United States in competing in a global economy.

A tabloid for every profession? The democratisation of gossip.

It is commonplace for us to observe that the Internet is changing the face of modern mass media.  One interesting consequence of the granularization of media coverage made possible by declining costs of distribution and marketing is the emergence of tabloid-style gossip rags for relatively small markets.

In the past, newspapers or magazines serving niche markets couldn't afford to be too risque in their news coverage because of the need to appeal to everyone in the niche market in order to maximize circulation and hence advertising revenue.  For example, it would have been unwise for a venture capital newspaper to run stories on the sex trade.  Similarly, it would have been unheard of for a newspaper on events relevant to practicing lawyers to report on the affairs of prominent legal academics.  But we have seen both over the past few months on Valleywag and AboveTheLaw.

In the future, we might expect to see similar developments in nearly every professional or non-professional field in which writers can pander to the prurient interests of readers educated well-enough to know and care about the gossip in a given field or industry.  A gossip page for dentists?  Why not, we already have too many straight-laced dental blogs: see here, here, and here.  What about a gossip blog for pharmacists?  We've already got The Angry Pharmacist,  The Angriest Pharmacist, and  Drugs 'R' Phun!  Even postal workers have their own blog.

Here's another prediction: the common law of defamation, libel, and slander isn't setup for this world.  How are courts going to handle defamation claims that arise from posts on the Internet?

Series FF stock and the Friedman-Savage Model for Risk Profiles

The Friedman-Savage model was developed to explain an economic paradox: assuming rationality, why would the same person buy both insurance and lottery tickets?  The answer that Friedman and Savage proposed is a double inflection utility curve:

The x-axis here corresponds to the size of the payout for a particular activity, the y-axis to the utility actually gained from the payout.  (Click on the graph for a larger version.)  Imagine that right now you have wealth = zB, and thus have utility = B.  The uncertain future forces you to take two different gambles: one with a payout somewhere between A and B and another with a payout between B and C.  The expected value of the payout is shown by the chords E and E'.  Although the expected value is everywhere lower than the actual utility gained from the payout between points A and B, a risk-averse person will prefer the certain result of E.  Thus, a risk-averse person would choose paying an insurance premium costing E over an uncertain result between A and B.  Likewise, a risk-preferring person would prefer the certain result of E' (which might be obtained, for example, by squandering income on lottery tickets) to the uncertain result between B and C.

The need for Series FF stock, which was pioneered at The Founders Fund where I work, can be explained by assuming that entrepreneurs (in particular, company founders) bear a similar risk profile.  Series FF stock can be issued to founders in place of common stock when the company is founded.  But unlike common stock, at later rounds of financing, a portion of the Series FF stock can be sold (subject to board of directors approval) to a later-round investor, and converted into whatever series of preferred stock is being issued at that round of financing.  For example, if a company founder held a 25% stake in the company through Series FF stock at formation, that company founder could one or two years later choose to sell 10% of that stake (or 2.5% of the company) to a Series A investor.  The company founder would get cash equivalent to the 2.5% stake at the Series A valuation.  The investor would get a 2.5% stake in the company in Series A stock.  Why should this be preferred to the status quo, in which company founders (usually) keep their common stock until the company is either acquired or goes public?

Entrepreneurs are extremely leveraged in their startups, and take a relatively small salary for the amount of value they create.  What they get in exchange is the payout on their equity when the company hits liquidity.  Although the timeline from seed stage to liquidity is shortening in some areas, the period is still on the order of 10 years.  This presents a problem from the point of view of maximizing the value of a company when, 5 years in, the entrepreneur is under pressure from personal creditors at the same time she is entertaining acquisition offers from a larger company.  In that situation, the entrepreneur has a strong personal incentive to sell the company at a low (but certain) price now, rather than holding out for a better offer in the uncertain future.

Referring to the curve, if the average person (including the average entrepreneur) tends to be risk-averse at lower payouts and risk-preferring at higher payouts, then it makes sense for investors to compensate for that by (1) monitoring management through board seats, thereby avoiding the excessive risk-taking between points B and C that is probably more common at later-stage companies, and (2) offering some liquidity, thereby avoiding the excessive risk-aversion that is probably more common at early-stage companies.

Most venture capital investors are already doing (1).  Series FF is the first formal, concerted effort that I know of to do (2).