Is software a good or a service?

To paraphrase The Hidden Complexity of Wishes - how would you ask an evil wish-granting genie to get your Mother out of a burning building? A gas pipe explosion will technically remove her body from the premises, but may not be quite what you had in mind. Such are the imperfections of language that all written law must ultimately be subject to intelligent human oversight. In their terms and conditions (T&C) software companies judiciously refer to themselves as ‘service’ providers. Are they?

Much of commercial law turns on the issue of accountability: when things go wrong, who pays? Broadly, three frameworks govern the question: contract law, common law for civil wrongs or ‘tort’ of negligence and statutory strict liability. Until the advent of mass production, contract law dominated. But industrialisation posed a new problem: privity of contract - the concept that no rights or obligations arising from one can apply to third parties - also meant no way for final buyers to make claims against producers since they rarely dealt with them directly. In Winterbottom v Wright (UK, 1842), Mr Winterbottom was denied compensation for injury when his poorly constructed mail coach collapsed because the Lords feared precedence: ‘the only safe rule’, they concluded, ‘is to confine the right to recover to those who enter into the contract’. It was not until courts introduced the concept of negligence, through pivotal cases such as Donoghue v Stevenson (UK, 1932) or MacPherson v Buick Motor Co (US, 1916), that buyers were allowed to get around privity. Yet negligence still requires plaintiffs to show ‘fault’, meaning blameworthiness and responsibility. In contrast, strict liability only requires that a tort occurred, regardless of culpability. If a product is defective, it does not matter producers followed the correct procedures: they are still liable. Product liability is the most important strict liability regime and it, crucially, applies only to manufacturers of products and not service providers. Doctors, lawyers, accountants, engineers - all still handle liability under the frameworks of contract law and negligence. It makes sense that software companies should prefer to trade under strict T&C (i.e. contracts) and avoid strict liability as much as possible.

Yet buyers may have more rights if software is considered a good, not a service. Replacement, reimbursement and damages are all easier to claim. In the US, courts have made the distinction on a case by case basis: is the software bespoke or mass-marketed? Did the buyer claim investment tax credits? Did the sales aspect predominate? Most notably, when bundled with hardware (as in laptops, Fitbits, Tesla cars), software will almost certainly be considered a ‘good’ and subject to Article 2 of the Uniform Commercial Code (UCC). Only this week, Microsoft paid $10 000 in a small claims court in California over a faulty Windows 10 upgrade. True, considering software a ‘good’ for the purpose of UCC has been more common than considering it a ‘product’ for the purpose of strict liability (‘good’ and ‘product’ are not perfect synonyms but the difference is still under debate). Yet invoking UCC makes invoking strict liability more likely. As the Internet of Things expands, expect more such rulings.

Already, in the UK, a key facet of the Consumer Rights Act 2015 (an EU directive implementation which updated and standardised previous consumer legislation) was to deal explicitly with ‘digital content’ and confer upon it the rights and obligations buyers would naturally expect. Under it, T&C are no longer binding if they ‘exclude or restrict the trader’s liability’. Ultimately, evil genies and T&C might be a necessary part of life, but mere crafty wording will not amount to genuine, binding consent. To agree, stop reading this now.

Why We Still Haven't Cured Cancer

Almost half a century since President Nixon started the ‘war on cancer’, President Obama promised ‘a new moonshot’ so that America may become ‘the country that cures cancer once and for all‘. Yet serious problems have a knack for persisting despite high-minded -- if overly optimistic -- political speeches. Despite decades of research and billions of dollars in public and private funding, cancer remains one of the world’s likeliest killers. Why?

Broadly, cancer is caused by uncontrolled cell division, when the mutation of a small set of genes causes cells to multiply indefinitely and invade the space of healthy neighbouring tissue. But cancer is best understood as a chemical process. Each cell contains the full human DNA - around 24000 genes - and each cell division makes a full copy. A gene is a sequence of chemical bases that instructs cells to turn glucose and oxygen into energy and which amino acids and proteins to manufacture, encoding information such as when to multiply and when to self-terminate - the programmed cell death known as apoptosis. Carcinogens are anything that corrupt this chemical code: radiation that breaks ionic bonds, and substances and viruses that disrupt cell metabolism or bind to DNA directly and change its structure. Still, perhaps the most insidious carcinogen is sheer bad luck: chance mutations over a lifetime of cell divisions. While DNA can self-repair, it won’t if the mending instructions themselves are damaged. Therefore apoptosis is key in preventing cells with gene mutations from replicating. However, if the signal for self-termination too is altered, cells will both multiply indefinitely and continue to replicate the initial mutations, making further DNA corruption more likely. This is why in tumours mutations tend to accumulate. Fixing all this is hard for many reasons.

First, every cancer is a different disease. Not only is leukemia different from melanoma but every tumour is caused by a different set of genetic mutations such that no two cancers are ever the same. Every tumour follows a unique genetic path so that one person may live and another die having the ‘same’ cancer and taking the same medication. Second, surgery is not always feasible, radiation is difficult to target accurately and the drugs known collectively as chemotherapy cannot distinguish between rapidly dividing cells in tumours and cells whose rapid division is legitimate and vital, such as those in hair and stomach lining. Finally, the accumulation of mutations makes it hard to identify the genes that started the process. Without knowing those it is hard to develop personalised medication or predict the effectiveness of various drugs on individual people. This is a problem big data can solve. Alas, because genome sequencing has only been possible for little over a decade, some of the world’s biggest genome databases still have only thousands of samples. Many millions may be required.

Yet change is under way. In 2008, whole genome sequencing could be purchased for $350,000; today that cost is under $1000, with results in two and a half months (the Human Genome Project took 13 years). Further, people who use DNA testing companies can chose to share their genomes with researchers, helping solve the data problem. Together with better computing, this can make the development of personalised treatments feasible. In 2000, Bill Clinton declared it ‘conceivable that our children’s children will know the term cancer only as a constellation of stars’. Overly optimistic, perhaps. Yet replace ‘children’ with ‘grandchildren’ and it might just come to pass.

On Melancholia and Being Jollied Along

September is my favourite month. Summer, even in London, was torrid. Not continually and not so hot as might prevent people from venturing outside, but enough to bring to mind pictures of tropical beaches and to feel like Summer. Summer needs to have made itself felt for September to be properly celebrated and relished.

It happened yesterday when I went for a stroll in Victoria Park. It was a lovely day. Not a day of splendid sumptuous mid-Summer, with throngs of happy people crammed in pubs or sprawled in patches of shade with board games, blankets and beers, but a day of quiet, sober loveliness, with overcast skies yet still clear clement weather and a gentle breeze. It was quiet. It was peaceful. It was balmy and placid and then, for a brief moment, I felt it. Beneath the bright sunshine, mixed in with the light puff of air, barely audible dissonance in the swift flow of harmony, a faint, noiseless, yet unmistakably distinct - winter chill.

Summer is over.

The name for what one feels before this change of season is not despair, nor apprehension, nor regret, but an emotion too often banished from everyday use and polite conversation: melancholy.

My Oxford Dictionary of English defines melancholy as a feeling of "pensive sadness" and sadness, even the pensive sort, seems to terrify people. The social norm is, at least outwardly, a state of more or less permanent excitement. Alain de Botton puts it best when he observes that people are relentlessly and without variation trying to jolly us along. A limited amount of amused frustration might on occasion, and only intermittently, be tolerated - so long as it's funny. But if anyone ever commits the social faux pas of admitting to any other kind of emotion, he is immediately met, depending on the audience, with either sternness, pity or concern.

This is a little crazy. It signals that we live in a society fundamentally unable to tolerate its own full range of emotions. And here is the thing: melancholy is glorious.

This is why September is my favourite month. Melancholy at this time seeps into the air and is to be breathed in and seen settling everywhere. It is the quiet comedown after the intense joy of Summer, when we wake up to the memory of winter to come. It is the sadness of letting go and the quiet joy of acceptance - because seasons pass and we too are one year closer to passing ourselves. September is the month to celebrate the dignity of Impermanence.

Yet this doesn't happen. People seem fixated, a bit manically, on the hope that science and technology are gleefully employed in bringing about the end of history and that immortality is just around the corner. Yay.

This may well be a noble pursuit and maybe the species will flourish and immortality is possible. But in our own lives, meaning the set of people currently alive, we do rather need to make a bit more room for melancholy. Because, and this is true, we will die. Let that sink in for a moment.

Before you cringe and hastily move along to more polite sentiments, take a solitary walk. Celebrate September a little. Allow a drop of pensive sadness to insert an inch of perspective into your daily grind. You might discover that melancholy, if quiet and understated, is in fact rather nice. It is tuna sashimi to the chocolate fudge brownie ice-cream of everyday life. Autumn is melancholic and life is pretty miserable most of the time. One may manage to enjoy both of them, nevertheless.

In Praise of Doing Nothing

I have been unemployed for 73 days and during this interval have been asked what on Earth I spend my time doing by at least one person, on average, about once a day. Compared to their own lives, most of everyone rightly feel that I am astonishingly time-rich and surely must have achieved something with all this wealth. How am I not immensely bored? I am reassured that they, surely, would be.

Alas.

Time is money so tracking how it is being spent can yield useful insights. For the past 3 years I have tracked my expenses purchase-by-purchase with a precision of two decimal points. The result has been a stark insight into exactly how much I require to live at precisely what sort of standard of living (in Dublin, Seattle or London) as well as some pretty good ideas for how to manage myself financially. For instance, I discovered that (up to a certain threshold) getting rid of belongings actually increases my disposable income by a good few hundred pounds a year and gives me at least 5 extra hours of leisure weekly.

For the past two months I have done the same tracking with time. Here is what I concluded.

First, that everything takes a lot longer than you imagine. However long you think something will take, it probably takes four times longer. The average book takes 7 hours spread over two weeks. Reading The Economist takes 9. An hour-long lunch with a friend in London actually takes four: two hours of travel, one hour at the actual rendezvous and one hour to shower, get ready, get distracted by someone completely different sending you a cat video and so on. While the fixed cost of social encounters tends to stay predictably at around three hours, any time alcohol is consumed the time spent in actual company will pretty much double. A good idea here is to schedule in advance hard deadlines for ending drinking sessions.

Second, we spend a ludicrous amount of time on, essentially, crap. Doing laundry, booking tickets to comedy shows, cooking, looking up things to do, shopping, commuting, washing dishes, looking after pets and plants and gardens, making sense of bills, paying them, running petty errands, arguing with people in call centers, planning holidays, planning parties, planning dates, planning work, reporting to others about the plans, more shopping, more laundry, more food preparation and so on. It takes me almost half an hour daily just to clean my teeth (I floss). About a third of every day is spent on nonsense - the sort of stuff rich people delegate to underlings. Next time you gush over how much Elon "Iron Man" Musk gets done in a day, remember he never has to spend an hour on the phone explaining to someone in Newcastle his precise employment situation.

Third, we are under permanent siege from things wanting our attention. Here is the unrelenting flow of news, over there some video or article or book or author your friend really really wants you to have a look at, next to them marketing and spam in every communication channel, on top the unbroken nagging of errands at every step and above all that constant voice: 'I should look into this'. And that's not counting any kind of cat videos. If your mind is a house then the world is a permanent flood pushing in an interminable quantity of debris and sweeping away everything that was there beforehand.

Take care.

Even in a state of unemployment it is possible to spend your entire time doing what eventually feels like nothing whatever. I have averaged only about four and a half hours of proper study daily and I'm counting certain YouTube channels in this.

This is not a complaint, really, just a simple observation. We all contribute to the noise. I certainly do (this post included). But it is important to remember we need time for introspection.

I don't just mean an hour in the evening while you struggle to fall asleep. I mean hours and hours of long walks thinking very hard and in a way that is systematic about what is going on with the world. Time set aside for contemplation; for appreciating the glory of a late Summer's day; for digesting everything that has happened to you (sometimes years and years ago); for trying to distinguish how to deal with other people and what is important, what is worth pursuing,  how to achieve your dreams and what those dreams are. You need an immense amount of time for all this.

It is only when you take this time that you realise how remorseless a deluge washes away unceasingly the precious time you have on this planet. As I write this, my phone has been making sounds in the next room almost without interruption. Ping ping ping. People and institutions sending terabytes of information at me and demanding attention. Even when you are not asked to do anything, you are asked for time - to open your mind to intelligence and data and opinion. This will besiege and crowd your own reflections out of existence. Insomnia and an inability to focus is how my mind likes to take revenge.

You must notice the constant harassment. Take a lot of care what information you allow to enter your mind. Be very conservative upon which things you bestow your attention. Don't let the world and its agenda trample over your own thoughts if you expect any of them to blossom.