Smart Contracts… or Dumb Software

The role of smart contracts in blockchain technology is creating an emerging area of jurisprudence which largely overlaps with computer programming. However, one of the first comments I heard about smart contracts when I started working in the blockchain and crypto industry was that they are “neither smart, nor legal”. What does this paradox mean in practice?

First, smart contracts are not “smart”, because they still largely rely on human coders. While self-replicating and self-executing software programs exist, a smart contact contains human-defined parameters or conditions that will trigger the performance of the contract terms once those conditions have been met. The simplest example might be coded as a type of  “if this, then that” function. For example, I could create a smart contract so that every time the temperature drops below 15 degrees, the heating comes on in my house, provided that there is sufficient credit in the digital wallet connected to my utilities billing account.

Second, smart contracts are not “legal”, unless they comprise the necessary elements that form a legally binding agreement: intent, offer, acceptance, consideration, capacity, certainty and legality. They must be capable of being enforceable in the event that one party defaults, but they must not be contrary to public policy, and parties must not have been placed under any form of duress to enter into a contract. Furthermore, there must be an agreed governing law, especially if the parties are in different jurisdictions, and the parties must agree to be subject to a legal venue capable of enforcing or adjudicating the contract in the event of a breach or dispute.

Some legal contacts still need to be in a prescribed form, or in hard copy with a wet signature. A few may need to be under seal or attract stamp duty. Most consumer contracts (and many commercial contracts) are governed by rules relating to unfair contract terms and unconscionable conduct. But assuming a smart contract is capable of being created, notarised and executed entirely on the blockchain, what other legal principles may need to be considered when it comes to capacity and enforcement?

We are all familiar with the process of clicking “Agree” buttons every time we sign up for a social media account, download software or subscribe to digital content. Let’s assume that even with a “free” social media account, there is consideration (i.e., there’s something in it for the consumer in return for providing some personal details), and both parties have the capacity (e.g., they are old enough) and the intent to enter into a contract, the agreement is usually no more than a non-transferable and non-exclusive license granted to the consumer. The license may be revoked at any time, and may even attract penalties in the event of a breach by the end user. There is rarely a transfer of title or ownership to the consumer (if anything, social media platforms effectively acquire the rights to the users’ content), and there is nothing to say that the license will continue into perpetuity. But think how many of these on-line agreements we enter into each day, every time we log into a service or run a piece of software. Soon, those “Agree” buttons could represent individual smart contracts.

When we interact with on-line content, we are generally dealing with a recognised brand or service provider, which represents a known legal entity (a company or corporation). In turn, that entity is capable of entering into a contract, and is also capable of suing/being sued. Legal entities still need to be directed by natural persons (humans) in the form of owners, directors, officers, employees, authorised agents and appointed representatives, who act and perform tasks on behalf of the entity. Where a service provider comprises a highly centralised entity, identifying the responsible party is relatively easy, even if it may require a detailed company search in the case of complex ownership structures and subsidiaries. So what would be the outcome if you entered into a contract with what you thought was an actual person or real company, but it turned out to be an autonmous bot or an instance of disembodied AI – who or what is the counter-party to be held liable in the event something goes awry?

Until DAOs (Decentralised Autonomous Organisations) are given formal legal recognition (including the ability to be sued), it is a grey area as to who may or may not be responsible for the actions of a DAO-based project, and which may be the counter-party to a smart contract. More importantly, who will be responsible for the consequences of the DAO’s actions, once the project is in the community and functioning according to its decentralised rules of self-governance? Some jurisdictions are already drafting laws that will recognise certain DAOs as formal legal entities, which could take the form of a limited liability partnership model or perhaps a particular type of special purpose vehicle. Establishing authority, responsibility and liability will focus on the DAO governance structure: who controls the consensus mechanism, and how do they exercise that control? Is voting to amend the DAO constitution based on proof of stake?

Despite these emerging uncertainties, and the limitations inherent in smart contracts, it’s clear that these programs, where code is increasingly the law, will govern more and more areas of our lives. I see huge potential for smart contracts to be deployed in long-dated agreements such as life insurance policies, home mortgages, pension plans, trusts, wills and estates. These types of legal documents should be capable of evolving dynamically (and programmatically) as our personal circumstances, financial needs and living arrangements also change over time. Hopefully, these smart contracts will also bring greater certainty, clarity and efficiency in the drafting, performance, execution and modification of their terms and conditions.

Next week: Free speech up for sale

 

How digital brands are advertising

During a recent visit to the cinema, I was surprised to see adverts for major digital brands on the big screen, ahead of the main feature.

I’ve always thought of cinema advertising as falling into one or more of the following categories:

  • ads you don’t see on TV (often longer than their small screen counterparts)
  • luxury names and aspirational brands (travel, spirits, fashion, financial services)
  • local businesses (the pizzeria “just a short walk from this theatre…”)
  • movie tie-ins (highlighting the product placement in the film you are about to see)
  • seasonal themes (especially Christmas)

What struck me on this occasion were the ads by three DNBs (digitally native brands), featuring LinkedIn, Tik Tok and Audible. Despite the disparate nature of their businesses, I realised that there was a common element.

As the above-linked McKinsey report states, successful DNBs are really good at connecting with (and understanding) their audience, identifying and fulfilling very specific needs with unique solutions, and leveraging the very technology they are built on to promote their services and engage with their customers. Witness the well-timed “alerts” from food-delivery platforms in the early evening, the viral campaigns designed to enforce brand awareness, and the social media feeds designed to build customer engagement and loyalty. (Note that the report features Peleton as a poster child for its thesis, before the personal exercise brand ran into recent difficulties.)

If you look at most DNB campaigns, they are primarily generating demand via very specific human drivers:

1. Aspirational – the pure FOMO element (not unique to DNBs, of course, but they do it more subtly than many consumer brands)
2. Experiential – highlighting the tangible benefits (of mostly intangible products)
3. Socialisation – the paradox of building a trusted relationship through hyper-personalisation and constant sharing…

These three cinema ads each contained implicit “story-telling“. LinkedIn positioned itself as a platform for establishing our own narrative (telling our own truth?); Audible promoted its audio content (books and podcasts) as a means to find authentic stories that resonate with us (and this was long before the recent shenanigans over at Spotify); and Tik Tok used a well-known viral video as the basis for building community around shared stories.

Of course, story-telling is hardly a new concept in brand marketing, and has been eagerly adopted by digital brands (think of campaigns during the pandemic which have featured on-line connectivity and remote working). However, it has become an over-used technique, and is often cynically exploited in the service of corporate green-washing, jumping on social bandwagons, and blatant virtue signalling.

Call me jaded, but I’m old enough to remember the fad of consulting firms pitching their clients on building a “corporate narrative“, drawing on employee stories and customer experiences, as the foundation for those anodyne mission/vision “statements” – but they typically ended up as exercises in damage control in case the truth got out.

These particular cinema ads managed to use story-telling to create a human dimension (authenticity, connectivity, community, sharing, etc.) that is more than simply “buy our product” or “use our tech” (although obviously that’s the ultimate goal). It would be very interesting to read the briefs given to their creative agencies, given that the ads were all in the service of corporate branding.

Next week: Doctrine vs Doctrinaire

 

 

 

The Last Half-Mile

One evening last week, I came home to find two separate deliveries waiting on my doorstep. Both had been delivered in error. The first was a bunch of flowers, but the named recipient, the street address and the suburb were all incorrect – it was for someone else in another postcode. The second was a packet of coffee beans (part of my monthly subscription), but I had already received the same delivery the day before – so this was clearly a duplicate. Welcome to the perennial logistics challenge of the “last half-mile”.

Delivery-on-Demand: 5 years ago, Auspost was experimenting with drone deliveries (image sourced from IT News)

It seems that despite the increased demand for on-line shopping and home deliveries during lock-down, supply chain logistics are still struggling to find a consistent and reliable solution. Coincidentally, in recent weeks I have been pitched two different start-up ideas that aim to address the last half-mile challenge for e-commerce. Although they are each taking slightly different approaches, both start-ups are trying to address the “recipient not at home” dilemma – what to do with parcels and deliveries when there is no-one at home? Their respective solutions revolve around a “localised point of collection/delivery” – either using a more convenient network of click & collect facilities, or a network of trusted neighbours to receive deliveries on your behalf. I have previously covered another Melbourne start-up called Passel based on a network of trusted local couriers – but it doesn’t seem to have progressed very far.*

So if this is a recurring theme, why can’t it be fixed – or are the solutions out of step with the actual problem? Or is the problem not that big of an issue to warrant over-engineered answers? In attempting to provide constructive feedback to both the recent pitches, I gave similar responses in each case, which can be summarised as follows:

Using a proxy recipient still does not solve the problem of items being delivered to the wrong address (or wrong items delivered to the correct address). In particular, it doesn’t address the issue of Australia Post personnel carding an item as “not at home” when in fact they simply can’t be bothered to attempt delivery and prefer drop it off at the local Post Office for collection – believe me, I have had more than my fair share of those.

Localised click & collect services already exist – usually in convenient locations, and often accessible outside Australia Post’s normal hours. Plus more parcel locker and similar services are appearing – so is the demand really there for another delivery solution?

Who is responsible for insurance claims on lost or damaged packages, where the named recipient (who has the sales contract with the seller) does not match some of the relevant transaction details associated with the proxy recipient?

Likewise, if you are using proxy delivery or collection services, who is responsible for managing returns and/or unclaimed items? Some retailers will take items back and offer refunds as a matter of policy – but others won’t or can’t process returned stock, and end up re-selling into secondary supply chains at a discount.

How do you recruit and screen proxy recipients and deliverers, and build trust into the network? How do you avoid an under/over-supply of proxy providers – too few and the system gets choked; too many and it’s not worth their time and effort to sign up.

How do you recruit and service multiple retailers and/or their point of sale and fulfillment providers to make it a viable service for customers who wish to shop from multiple shops and brands?

Who (and how) do you charge for the additional convenience you are trying to offer – retailer, customer, or both? Suggested options include a per transaction fee and/or an annual subscription fee, or a check-out fee which can be rebated based on loyalty or other frequent buyer rewards. But the “convenience premium” cannot be disproportionate to the value of the transaction.

Even with more customised delivery options such as trusted neighbours, the issue of having to be at home during quite wide delivery hours (e..g, 8am to 1pm, or 9am to 5pm) still applies.

Confirming proof of delivery is still a pre-requisite – even more so if using proxy delivery addresses – and potentially adds another layer of complexity.

Finally, the need for immediate “Delivery-on-demand” may be overstated, at least on non-perishable goods, so a constant stream of delivery drones down every suburban street is probably some way off….. but maybe don’t rule it out if we have further pandemic-related lock-downs or continuing challenges in the COVID vaccine rollout.

* Similarly, I also blogged about other customer experience with the final step in fulfillment across a number of sectors, including e-commerce.

Next week: Notes from Blockchain Week

Antler Virtual Demo Day

As with other virtual demo days I have attended this year, it was remarkable to hear how far the teams in Antler’s Sydney Cohort #3 had progressed in light of the current pandemic and associated lock-down restrictions.

Each participating team was categorised into an industry sector:

Consumer Tech

Remote Social is designed to connect remote and hybrid teams. The ethos is that with the shift in working patterns (heightened by the current pandemic) corporate culture and organisational engagement are “at risk”. The solution aims to foster socialisation and build culture through curated games and activities. Claiming to have generated over 200 organic signups, including team members at big tech brands, the founders are adopting a “bottom, land and expand” customer acquisition strategy. In addition to a seat-based subscription model, the platform will also offer a revenue share for marketplace providers.

Coder One claims to be “the home for AI sports”. The team describe their project as an API platform for AI games, with unique combination of AI and e-sports. The goal is to make AI and programming more accessible via an AI Sports League, where bots compete, programmed by developers. With more than 250 registrations for an upcoming competition, the team are also looking to secure sponsorship deals. The commercial model has three components: free access to programs for developers, individual subscription fees to access games/tournaments, and corporate fees to access talent for potential recruitment.

Feather is an online platform which enables instructors and creators to deliver and monetise their digital services. According to the founders, existing tools are not fit for purpose, complex or clunky. Initially targeting yoga teachers, the solution will sell tiered subscriptions, plus take a small revenue share. The team also see themselves as part of the “creator economy”, but I was confused by the name – is it a deliberate attempt to suggest a link to Dumbo Feather magazine? Plus, there was some feedback that the platform may be vulnerable once tools like Zoom start putting up more pay walls.

Tactiq is a tool to “capture valuable insights from remote meetings”. The founders claim it can be used with any conferencing software, and is platform agnostic (although currently limited to a Google Meet via a Chrome Extension). The product, essentially “speech to text plus”, also generates AI assisted summaries, and the team has attracted over 100,000 users from around 4,500 organisations. Pricing is $9 per user per month, plus $20 per month to access team functionality. While the team appears to know and understand their target users, they were questioned about privacy and security issues. Although the transcription content is not stored on the platform, my experience of other similar tools is that once they are integrated, they have a tendency to “take over” and insert themselves, unprompted, into e-mail and calendar applications – “you seem to have a meeting now – would you like me to record it?”

SaaS

Upflowy wants to help B2B companies improve their customer conversion rates. Intended to be a “no-code” sign-up engine, the team explained that from their experience, in-house developers tend to focus on product features, rather than improving the sign-up experience. Typically, in-house sign-up optimisation is slow, expensive or totally non-existent – the key issues being scaleability and reliability. Essentially a form builder, the solution enables A/B testing, and claims to deliver a 40% improvement in conversion rates (compared to 17% improvement achieved with other optimization tools).

Flow of Work Co is positioning itself as the “Future of Work SaaS”. With a mission to help companies to retain the best people, it is HR tech using AI in the form of a smart matching engine to identify in-house talent, based on proprietary ontology. It also helps employees to find development resources, as well as to match projects with in-house talent. According to the founders, talented staff leave because they are bored or lack career development. With an initial focus on software companies, the team then plans to tackle the financial services sector. The team was asked about integration with existing HR tech stacks, and how they ensure objective assessment of competing project candidates – but it wasn’t so clear how they achieve either.

Portant is an end-to-end project reporting tool, designed to be a “consolidated single source of truth”. Asked why existing project management tools don’t work, the founders identified a number of factors: teams are using different tools, the process is often repetitive and/or highly manual, or project tracking typically relies on data from different sources. The team have launched an MVP on Google Workspace Marketplace, and will soon launch on Microsoft AppSource (and appears to use AWS Comprehend as the analytical tool?). There is an SaaS pricing model, and content privacy is ensured via end-to-end encryption plus the use of private keys.

StackGo helps clients achieve stronger B2B sales via SaaS marketplaces, rather than relying on direct sales. However, the initial setup costs and effort required to connect to existing SaaS marketplaces can be daunting. With an approach based on “build once, deploy many”, StackGo enables users to connect to multiple SaaS marketplaces via a single solution. However, the team, did not explain what the setup costs are for StackGo nor were they very specific about the price range or typical sales value their clients achieve – “free to hundreds of dollars per month”.

EdTech

GradVantage wants to reduce the cost of getting graduates job ready, and reckons it can save employers $30k per new hire. Offering a personalised learning experience for each user, the founders have adopted a “Slack” model – team first, then enterprise sale. Acknowledging that the EdTech sector is crowded, the team think their point of differentiation is the fact that they are a career-entry solution, and not in the K-12 market. The focus is on tech talent and SaaS vendors. Employers pay per learner, and the platform saves time and reduces on-boarding costs. Typically, 30% of program content is about tech applications, and 70% on how to use the tech. A more fundamental issue is the huge gap between university courses and actual job requirements.

HealthTech

eQALY is an integrated tech platform that enables the elderly to achieve a higher quality of life in their own home, by predicting their individual needs in advance, and identifying the right Home Care Package funding (which can be worth up to $26k). Using 360 degree data inputs, a risk model, and a proactive care plan, the product takes into account client needs as well as family concerns, plus financial considerations. Although the aged care industry is regarded as being slow to adopt new technology, the founders plan to focus on aged care organisations, who will then distribute predictive data and analytics to care providers and managers. The platform is tech agnostic but IoT devices, AI tools and virtual assistants can be integrated, plus new voice analysis technology is emerging that can monitor client well-being, and
all of the activity monitoring tech is passive. meaning the end user does not have to worry about learning new applications.

Retail and E-Commerce

The One Two is a very specific, and very targeted, D2C solution offering a hyperpersonalised service for fitting and buying bras. According to the founders, current customer experience suffers from ill-fitting products, poor product design, bad materials, and inadequate size configurations. As a result, customers feel overwhelmed and give up. The basic product IP has been tested, along with an on-line measuring and fitting tool, combining to provide better customer diagnosis and product tips. The team have already secured a startup partnership with a global lingerie manufacturer and distributor.

m8buy did not make much sense to me. Maybe I’m the wring demographic, but why would anyone want to “shop online with [their] friends”? Describing itself as “a social layer on any e-commerce store”, it feels like this is aimed at the “buy now, pay later” audience.
According to the founders, merchants will only pay a commission (“low single digit %”?) on successful sales. But it’s not clear whether this is a group buying service, a discount marketplace, or a loyalty programme, nor how it will be differentiated within the Shopify marketplace.

PropTech

Sync Technologies is a digital solution for construction industry – with the tag line of “turning data into insights”. The problem being addressed can be summarised as follows: 1) Building
sites are fragmented and complex 2) Progress reporting and bottleneck identification is poorly done 3) 12% of a typical job has to be reworked 4) 80% of projects are late and/or run over budget. Using a digital twin concept, the solution aims to provide a “single source of truth”, and the team are already working with some key firms, and have 2021 forecast revenue of $2m.
Key obstacles to overcome are entrenched on-site behaviours, and slow the tech adoption across so many stakeholders in the construction industry. The founders claim to have identified the solution via their Construction Assistance System which offers better project and status visualisation via the digital twin.

Next week: Version / Aversion