by Mike Masnick
Thu, May 23rd 2013 1:01pm
by Mike Masnick
Thu, May 23rd 2013 12:04pm
from the wow dept
Vermont’s law (H.299, to be codified at 9 V.S.A. § 4195-4199) is entitled “Bad Faith Assertions of Patent Infringements.” However, it doesn’t define “bad faith patent assertion.” Instead, it enumerates factors to help judges distinguish legitimate from illegitimate patent assertions. Factors that suggest a bad faith patent assertion include not identifying the patent(s)-at-issue, the patent owner, and exactly how the recipient’s behavior violates the patent; demanding too quick a response or too much money; and making deceptive or meritless assertions. Factors that suggest a legitimate patent assertion include commercializing the patented invention; being either the original inventor (i.e., not having bought the patent for assertion purposes) or an educational institution; and having successfully enforced the patent in court.The law would allow those threatened by trolls to sue back and seek damages, even if no lawsuit has been filed. In other words, it helps those who are being shaken down and don't want to settle. That's a nice feature, but there are some reasons to be skeptical. It also allows the state Attorney General to go after patent trolls. While the law may scare of some patent trolls, I think Eric Goldman is right that a state-based solution is neither a good idea for this, nor is it probably legal. Patent law is a federal law, and federal preemption likely means that state laws that impact patents aren't allowed. This tries to hide it as a consumer protection law, which is an interesting strategy, but I could easily see this law being tossed out.
Of course, even before the law was officially on the books, it looks like Vermont's Attorney General has already sued a patent troll under existing consumer protection laws (raising questions as to why the new law is necessary). In this case, the troll is one we've written about a few times. Remember the series of rotating shell companies that had claimed that businesses who had a networked scanner need to pay $1,000 per employee? Yeah, that one.
The Vermont Attorney General claims that many of the statements made in the threat letters sent out by the rotating set of shell companies include "deceptive statements" and "deceptive practices" that violate consumer protection laws:
Defendant engaged in unfair trade practices in commerce in violation of the Vermont Consumer Protection Act, 9 V.S.A. § 2453(a) including:The lawsuit also claims that lawyer Jay Mac Rust is really the person who owns the patents via the company MPHJ. As you may recall, last month we wrote about Mac Rust after Joe Mullin at Ars Technica interviewed him in connection with the case. At the time, Mac Rust claimed that he was just one lawyer working for the owner of the patent, but who handled the "irate" recipients. So it's interesting to see the claim that he's really the guy behind MPHJ. As we've noted, there's long been an assumption that the use of shell companies is often done to hide the fact that it's the patent lawyers themselves who own the patents being used.a. Stating that litigation would be brought against the recipients, when Defendant was neither prepared nor likely to bring litigation;Defendants engaged in deceptive trade practices in commerce in violation of the Vermont Consumer Protection Act, 9 V.S.A. §2453(a), by making deceptive statements in the threatening letters which would likely lead consumers to believe the following:
b. Using legal counsel to imply that Defendant had performed a sufficient pre-suit investigation, including investigation into the target business and their potentially infringing activities, that would be required to justify filing a lawsuit;
c. Targeting small businesses that were unlikely to have the resources to fight patent-litigation, or even to pay patent counsel;
d. Sending letters that threatened patent-infringement litigation with no independent evidence that the recipients were infringing its patents;
e. Shifting the entire burden of the pre-suit investigation onto the small businesses that received the letters;
f. Propounding burdensome information demands on any business that claimed not to infringe the patents; and
g. Using shell corporations in order to hide the true owners of the patents, avoid liability, and encourage quick settlements.a. Defendant would sue the target business if they did not respond within two weeks;
b. Defendant would sue the target business if they did not pay money;
c. Defendant had a reasonable basis for identifying the target businesses as infringing its patents;
d. Subsidiary Shell LLCs were exclusive licencees able to enforce the patents;
e. Target companies were within the sending Shell LLC's alleged area of exclusivity;
f. Defendant's licensing program had received a positive response from the business community;
g. Many or most businesses were interested in promptly purchasing a license from Defendant;
h. Based on prior licensing agreements, the fair price of a license was between $900 and $1200 per employee;
i. Target businesses were receiving a third letter, which refers to two prior letters, when in many cases recipients had received no prior letters.
The use of consumer protection law in response to patents is an interesting strategy. I'm skeptical as to how well it will actually work in court, but there's no denying that many of the claims made in threat letters are, in fact, untrue and could be deemed deceptive (this kind of thing might work against copyright trolls as well). No matter what, this is going to be a key case to follow.
by Mike Masnick
Thu, May 23rd 2013 11:05am
from the great-moments-in-lawyering dept
Well, it appears that Nazaire seems to believe that if he just keeps telling the court crazier and crazier things, perhaps it will ignore Judge Wright's ruling. The latest filing tries, once again, to give the judge in Georgia a reason to ignore Judge Wright's ruling, but again it doesn't make much sense. The filing is rambling and somewhat wacky, seemingly trying to argue that, even though Prenda and AF Holdings are implicated in both cases, they're completely and totally unrelated. He also seems to argue that these filings are just designed to rack up higher billing fees. Note, for example, the slightly paranoid use of capital letters:
That motion was NOT written by the undersigned; nevertheless the defense has filed it in THIS docket apparently for two reasons. 1) to bill for the same and 2) to give THIS Court the impression that either the undersigned or a friend of his drafted and filed the same.But where it gets really wacky is when Nazaire just starts tossing in totally random claims about hackers:
Why would the defendant in this case file a copy of a motion (ECF No. 31, Defendant’s Exhibit B) from the California case and into THIS docket when that motion has nothing to do with this case?What is Exhibit A, you ask? Why it's a random story about hackers claiming to be a part of Anonymous hacking into Paypal. What does that have to do with anything? The answer is nothing.
The undersigned does not know the answer to that question. However, it must be noted that defendants (not the one herein) in these types of cases, typically employ various crafty and intimidating schemes against prosecutors and plaintiff’s attorneys. A newspaper article mentioning other types of intimidation is attached hereto as Plaintiff’s Exhibit A.
Here's what I find most incredible about Nazaire's line of reasoning. It is basically "please ignore this other case where the same companies that I'm working for have been called out for fraud on the court, because that's totally unrelated, even though they're the same companies" while at the same time saying "we can't trust anything the defense says because, hackers! And, as proof, here's a random totally unrelated story about hackers."
He goes on to suggest that these hackers are after him, because some moron sent him a stupid email.
Furthermore the undersigned has been personally harassed by these types of defendants (not the defendant in this instant case nor the individuals listed in Exhibit A) because of THIS case alone. (Please see Plaintiff’s Exhibit B attached hereto).Exhibit B is a silly email from someone using the email address "firstname.lastname@example.org" saying:
You are about it get justifiably screwed by the justice system.Of course, this is a stupid email by whoever sent it, but it's hard to see how that's necessarily "harassment," nor does it show that the person who sent that email is one of "these types of defendants." It's just a stupid email from someone mocking Nazaire (the email address should have been a giveaway on that front).
It's nice to see.
You aren't very smart, are you?
Either way, if I'm the judge in this case, each of these filings only makes me more interested in whatever must be in Judge Wright's order...
Thu, May 23rd 2013 10:01am
from the now-you-see-it,-now-you-don't dept
If you're a government with something to hide, there are plenty of shady ways to handle Freedom of Information Act requests. You can make sure your organization is legally allowed to carry guns and simply refuse, like the NYPD. You can also make a big deal about how requests are only honored for in-state residents, as if that were the spirit of the legislation. Or, if you're as big as the federal government, you can play a sort of bureaucratic hackey-sack game with the request for years before releasing the most non-useful information possible. The problem with all of these methods, however, is that they make those using them look petty, but they don't really cement their position in the corrupt jackasses category that I believe all government agencies secretly want to obtain.
Which is why we'll go to the Chicago city government, since they're the obvious experts in the matter. Here, Rahm Emanuel's administration has taken responding to FOIA requests to a whole new level, not only providing nothing in response to such requests, but then answering questions from the Attorney General with non-responses indicating they might just have proactively destroyed the documents being requested. This story begins with our vaunted public school system, the CPS. Glenn Krell wanted to get his hands on what research had been done when CPS put in a longer school day without bothering to give schools any resources to actually do anything with the extra time.
Krell figured CPS had done research on the longer school day because, like every parent in the system, he'd received a letter from Jean-Claude Brizard, then the CEO, claiming that "our elementary school students are receiving 22 percent less instruction time than their peers across the country." So he sent CPS a FOIA request asking for "the reports, statistics, comprehensive city-by-city analysis and other documents that back up the statement by Mr. Brizard."
CPS responded that "the district does not maintain any documents responsive to your request."Got that? CPS cites a statistic justifying the longer school day, Krell asks for the basis of that statistic, and CPS says there is no document for that. In internet terms, Krell asked for a citation and CPS was unable to provide one. In addition, Krell asked for information on how the city decided to achieve what it calls "selective enforcement tiers", by which high-performing schools are made available to lower-income families as a method for integration. This was another matter about which CPS had indicated its offices were just overflowing with research.
He knew CPS had lots of information on this matter because he'd read about it in the Tribune. In that article, CPS officials boasted about how they'd left no stone unturned in their effort to make the selection process as fair and objective as possible. They said the process considers data such as home-ownership rates in the students' census tracts and the share of homes where English isn't the primary language.The response to that request? CPS claimed there too it had no documents to turn over. But why? Had Brizard and CPS simply made the statistics and research claims up? To find out, Krell appealed to AG Lisa Madigan, which is exactly what the law indicates you're supposed to do if you get a fishy response to a FOIA request. Madigan's office dutifully asked CPS if such documents had never existed, or if they'd simply been destroyed. CPS responded that they had never maintained those records and they do not exist. The result of that non-answer was for Madigan's office to declare the matter closed.
And that's a problem, because CPS didn't actually answer the AG's question. They do not answer whether or not the documents ever existed at all, only that they never maintained them and they don't exist currently. One way to achieve that answer is for the research to never have actually been done, which would make CPS liars on multiple items it had addressed to parents and the press. Another way is for those documents to have been proactively destroyed instead of maintained, quite possibly so that they'd never have to be revealed for a FOIA request. Either way, that's crappy government. Add to that Madigan's shirking of her responsibility and it's difficult to take Emmanuel seriously when he claims his administration is "the most open, accountable, and transparent government Chicago has ever seen."
by Tim Cushing
Thu, May 23rd 2013 8:57am
VOD Service Acetrax Shutting Down, Forcing Customers Through DRM Hoops To Retain Their Purchased Movies
from the controlling-the-horizontal-and-vertical-but-mainly-the-'purchases' dept
Does DRM stop (or even slow down) piracy? This question's hardly hypothetical. It's been answered with a resounding "no" all over the internet. Of course, it's been argued that DRM was never about piracy prevention, but instead was a vehicle for content owners to control the technology in the hands of the end users. If so, the answer isn't much different. It may provide a sense of control, but those who want to enjoy their purchased content on devices outside the confines of the imposed restrictions will easily find a workaround or two simply by doing a small bit of searching.
Whatever DRM's stated purpose is, there's only one thing it does extremely well: inconvenience paying customers. Acetrax, a video-on-demand service that serves millions of customers across Europe, is closing on June 21st. Unlike other service closures, Acetrax is at least providing a sort of "exit strategy" for purchasers, but it's one filled with busywork and limitations. [h/t to Techdirt reader techflaws for sending this in.]
After [the June 21st shutdown], owners of Windows PCs can download their films. Mac users can forget it, as can anyone hoping to re-download HD films. Even on Windows, it's standard definition only from that point.Acetrax has provided a FAQ that details everything purchasers can and can't do with their purchased movies. As stated above, purchased movies are standard def only and are tied to a single device running Windows Media Player. Purchasers will also need to set aside a bit of time to validate their already-purchased movies (and hope they're not rubbing up against a providers' data cap).
Movies that users have previously downloaded will cease to play from that date, so re-downloading films is mandatory if you want to continue to be able to watch them. Re-downloaded films will be tied solely to the machine on which they're first played. Because they use Microsoft's Windows Media Player DRM, the films can't be transferred to any platform that doesn't support the copy-protection technology.
From the Acetrax FAQ:
If you're watching on a laptop or PC (not including Mac), movies you've bought in standard definition (SD) are available to download directly from Acetrax.com. Just go to ‘My Movies' and click on the download icon. Once the download is finished, you'll need to have the latest version of Windows Media Player installed in order to watch it. Make sure you have the necessary rights on your computer and at least 2GB of hard-disk drive free on your PC or laptop so you have sufficient space to store the movie. Once the movie has successfully downloaded, you will need to play the movie for at least 5 minutes for us to validate the movie licence on your computer.This sort of time-killer is only going to make former Acetrax customers more hesitant to purchase digital downloads from online services and, obviously, those who have spent the most money will be wasting the most time re-downloading and re-verifying movies they've previously purchased.
On a more positive note, Acetrax isn't limiting its offer to apologies and DRM to-do lists. Purchasers of HD movies are entitled to refunds, along with customers carrying unused credit on their accounts. (Caveat: refunds limited to those with PayPal or ClickandBuy accounts -- another unnecessary limitation, but at least it's the same as the options allowed for purchasing and renting.)
While Acetrax is handling this shutdown better than others have in the same situation, the decision to lace its offerings with DRM causes the greatest headache for those purchasing the most. If Acetrax had decided to go DRM-free (not likely, considering the amount of major Hollywood films it carried), this shutdown would have been painless for its paying users.
by Mike Masnick
Thu, May 23rd 2013 7:58am
from the those-phones-are-getting-smarter-all-the-time dept
by Mike Masnick
Thu, May 23rd 2013 5:51am
Kim Dotcom Threatens To Sue Google, Facebook And Twitter Over 2-Factor Authentication Patent If They Don't Help Him
from the hmmm dept
But... he says he may sue them now. Specifically, he's asking them to help fund his defense, in exchange for not getting sued for the patent. He points out that his actual funds are still frozen by the DOJ and (more importantly) that his case actually matters a great deal to Google, Facebook and Twitter, because the eventual ruling will likely set a precedent that may impact them -- especially around the DMCA. That's actually a pretty good reason for the tech industry to think about participating in the case even if they don't like Dotcom at all and don't want to be associated with him. Bad cases make dangerous caselaw, so having a good defense would be useful.
That said, the threat of suing over a patent if they don't fund his defense seems like a potentially poorly thought out strategic move that could backfire. Remember, Dotcom has been hit with racketeering claims, and I would think that anything that implies "give me money or I'll sue" isn't the best move for someone already facing racketeering charges.
by Mike Masnick
Thu, May 23rd 2013 3:44am
from the interesting-move dept
There may be some concerns about this. The "ownership" of the new work belongs to Amazon, as you're basically signing a publishing agreement with Amazon, who then controls the work. Given the situation, that might not be that much of an issue for most fanfiction authors, but some may be concerned (for example, imagine if this had happened with 50 Shades of Grey, which originated as Twilight fanfic, before becoming a monstrosity of its own). Also, there's no guarantee that Amazon will agree to sell the work, but it claims it will publish "as many as possible." It basically sounds like they reserve the right to reject ridiculously bad works.
In some ways, though in very different circumstances, this reminds me of some of the cooler aspects of YouTube's ContentID program, in that it sets up a way for people to reasonably monetize what might be considered infringement under the law, but which most people realize isn't what copyright law should be destroying. Once again, if you just make it so that innovation can occur, people quite frequently figure out business models that build on what maximalists consider "piracy" if they give it time and let the business models shake out.
by Mike Masnick
Wed, May 22nd 2013 11:54pm
from the nicely-done dept
I met Jack Conte a few years ago, after having written about him and his band Pomplamoose a few times. I'd always been impressed by Pomplamoose's ability to really connect with their fans and to build a way to support themselves via that strong connection. But in my brief interactions with Jack, it quickly became clear that he thinks deeply about different ideas for revenue models, and so it's little surprise that he's now built what seems like a pretty cool platform for ongoing support for content creators. It's basically a platform, like Kickstarter, but rather than backing a project, you back the production of certain types of regular content. So, for example, you could promise that you'll pay $5 every time Jack releases a new video (and you can put limits on how much you pay, so he doesn't get away with suddenly releasing 1,000 videos at once). It's called Patreon, and it's got a nice, simple video explaining how it works:
Either way, I'm glad to see some new platforms popping up like this. For a little while, it had been getting kind of annoying to see just how many Kickstarter clones were popping up (including a new one from Donald Trump?!?). You never know, of course, if Patreon will catch on, but conceptually the model makes a lot of sense for many types of content creators. In some ways, it seems like a better model for connecting with "true fans" than something like a Kickstarter. While Kickstarter has the appeal of "this is a big event, join us!" it would be nice to see some more ongoing, sustainable model platforms become popular as well.
by Mike Masnick
Wed, May 22nd 2013 7:53pm
from the this-post-is-a-test-of-your-sense-of-humor dept
And, because people who angrily write comments on this site rarely read to the end of the post, I'll just point out that this is a joke, not anything even remotely serious. Laughter is good.