by Mike Masnick
Mon, Nov 29th 2010 4:05pm
by Mike Masnick
Mon, Nov 22nd 2010 1:38pm
from the that's-not-going-to-work dept
That said, even if it's totally blatant, I'm wondering if there's any actual "harm" here, despite Gibson's claims. It's not as if using one of these is going to make people say they don't want a real Gibson guitar. If anything, I could see these increasing the demand for the real versions of the various Paper Jamz models. Hell, I could see a market for Gibson to come out with similar designs just to capitalize on the popularity of the Paper Jamz guitars.
The flipside, of course, is that Gibson wants to "license" the trademarked designs, and is actually hoping to get Wowwee to pay up for the designs and then still get the benefit of increased demand for the real guitars. That feels a bit like double dipping, but you can understand where Gibson is coming from on that.
Where it gets a little shadier is going after the various retails selling the Paper Jamz offerings -- as the lawsuit is filed against Walmart, Amazon, Big Lots, K-Mart, Target, Toys R Us, Walgreens, Brookstone, Best Buy, eBay, Toywiz and HSN (Macy's was also threatened, but claims it doesn't sell the toy, so Gibson didn't sue). It gets especially questionable when it comes to eBay, where (obviously) some users have been selling the toy. Gibson claims that eBay is guilty of contributory infringement, because it did not respond to a cease & desist letter it sent and (Gibson claims) even under the recent Tiffany ruling, which absolved eBay of such liability, part of what worked in eBay's favor was its takedown policy. Gibson here is arguing that since eBay didn't take stuff down when it contacted them, that policy was ignored, and the Tiffany ruling no longer applies. That seems like a stretch, though there are some details lacking, such as exactly how Gibson informed eBay of the "infringing" material. A blanket cease & desist might not include enough information. Either way, it seems pretty silly to go after eBay here -- because the company has shown a willingness to fight (and win) over lawsuits like this.
by Mike Masnick
Fri, Nov 5th 2010 5:30am
from the even-against-their-own-interests dept
Thankfully, in most of these cases, the courts have recognized this and Google has prevailed. One high profile one, decided a few months back, was an attempt by language software firm, Rosetta Stone, to sue Google over ads on the site. Rosetta Stone failed badly, and while there were some quirky aspects to the ruling, it got the "big questions" right.
Rather than recognizing the nature of trademark law, Rosetta Stone is appealing, and the case is generating a lot of attention. Eric Goldman has a rundown of amici briefs supporting Rosetta Stone's position, and it's basically a "who's who" of companies who hate Google and are or were involved in other lawsuits against Google. You have Viacom and Blue's Destiny, who both sued (and lost to) Google on copyright issues. It seems they're hoping that if secondary liability in trademark can be applied to Google on this issue, perhaps they can use it to argue for more secondary liability in copyright law. That's a longshot, and it's a pretty childish reason to file an amicus brief here. There are some other companies that have sued over trademark keyword advertising in the past... And then there's the Association for Competitive Technology (ACT) and the Business Software Association (BSA), both of which have very strong ties to Microsoft. This seems really strange, because a loss for Google here would absolutely harm Microsoft. As Eric Goldman notes:
Could Microsoft be foolish enough to use this lawsuit as an opportunity to tweak its arch-enemy Google, even though an adverse ruling in this case would almost unquestionably be against Bing's best interests?Even more bizarre is that eBay also has pretty strong ties to ACT, and eBay has been fighting against a long series of ridiculous secondary liability trademark claims from luxury goods makers (many of whom signed on to the exact same brief by ACT. It would appear that this brief actually appears to go against many of the best interests of ACT's largest members. A very strange move by ACT who should know better.
One other oddity: apparently Rosetta Stone's opening brief in the case was heavily redacted for no good reason, which seems problematic on such a high profile case that could impact a variety of technologies and services. Thankfully, Paul Levy saw this and questioned why there were so many redacted parts, and the lawyers have agreed to release an unredacted version of the brief.
by Mike Masnick
Tue, Sep 14th 2010 4:39pm
from the will-tiffany-ever-learn? dept
It didn't take all that long, as the lower court once again sided with eBay and said that eBay did nothing wrong here:
"Tiffany failed to establish that eBay intentionally set out to deceive the public, much less that eBay's conduct was of an egregious nature sufficient to create a presumption that consumers were being deceived,"You can also read the full opinion thanks to Eric Goldman:
by Mike Masnick
Mon, Sep 13th 2010 7:31am
from the let's-see-some-licenses dept
We hold today that a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user's ability to transfer the software; and (3) imposes notable use restrictions.The full ruling is here:
Last year, the district court sided with Vernor, saying that Autodesk had no right to restrict his first sale rights (which allow you to resell a legally owned copyrighted product without first getting permission from the copyright holder), and that Autodesk's "license" was really a license in name only, since at no point did the possessor of the software have to return it. Instead, the court pointed out that when you bought AutoCAD, there really was a transfer of ownership.
Tragically, the appeals court disagrees with that, and effectively opens the door to effectively killing off the entire concept of the first sale doctrine, by highlighting the rather simple steps anyone needs to take to make sure any "sale" is really considered a "license," and thus removing the first sale rights. Basically, you just have to say there's a license and that "license" has to have a few rather simple things in it. You know all those stories about video game companies hating the used game market? Well, video game companies just got their "kill the secondary market free" card from the 9th Circuit. Of course, as we've pointed out, having a secondary market tends to increase the value of the primary market, so software companies (and others selling copyrighted works) may wish to think carefully before wiping out the secondary markets.
The court does note that this ruling could have quite a negative impact, but says that it's ruling based on what the law says, and suggests that perhaps Congress may wish to revisit this issue (fat chance of that happening, of course). While it is true that a court must rule within the law, even if it thinks the end result is bad, I think that the court here is using that as an excuse. The more you look at the details, the more you realize this is a license-in-name-only, and (as the lower court realized) the court could easily make that point and stay within the law, protecting these important first sale rights.
That said, this case is hardly over. Vernor's lawyer on the case, Greg Beck from Public Citizen has already announced plans to ask the court to reconsider the case en banc (i.e., with the full panel of judges, rather than just the three judge panel who heard the case), and even if that fails, this case will certainly be appealed to the Supreme Court. Given the two other first sale cases soon to be heard, combined with what appears to be (even if the court denies it) a circuit split with at least the 2nd Circuit on first sale issues, hopefully the Supreme Court will set the record straight and reinstate first sale rights for software. It would be great, of course, for Congress to just step in and fix things, but it's difficult to remember the last time Congress got something right when it came to copyright law... and with lobbying giants like the MPAA siding with Autodesk on this one, you can bet that no one in Congress will be able to secure enough votes to fix things.
This ruling is pretty depressing if you actually believe in property rights. It shows, once again, how copyright is not a property right, but often quite the opposite: restricting what people can do with their own property.
by Mike Masnick
Thu, Sep 9th 2010 5:09pm
Judge Says Craigslist Can't Just Dilute eBay Off Its Board, But Can Keep eBay Off The Board Otherwise [Updated]
from the that's-not-how-it-works dept
by Mike Masnick
Wed, Sep 1st 2010 8:30pm
from the you-buy-with-ebay,-you-pay-with-ebay dept
by Mike Masnick
Fri, Aug 27th 2010 12:44pm
from the those-who-can't-innovate,-litigate dept
Because, while Interval was unable to actually execute, thanks to the wonders of the US Patent system, it was able to secure lots of patents, and now it looks like Paul Allen has gone full on patent troll. He's using those patents to sue Google (and, separately, YouTube), Apple, AOL, eBay, Facebook, Netflix, Yahoo, Office Depot, OfficeMax and Staples -- you know, the companies that actually did innovate and did execute -- for being successful where he failed. Of course, Paul Allen has been tangentially related to patent trolling operations in the past, so perhaps it was just a matter of time. Still, this is a pretty disgusting situation all around.
The WSJ article about the lawsuits doesn't mention the actual patents (why do so few reporters actually point you to the useful info?), but they're the following:
- 6,263,507: "Browser for use in navigating a body of information, with particular application to browsing information represented by audio data."
- 6,034,652 & 6,788,314 (really the same patent, involving continuations): "Attention manager for occupying the peripheral attention of a person in the vicinity of a display device"
- 6,757,682: "Alerting users to items of current interest"
by Mike Masnick
Tue, Aug 17th 2010 1:32pm
from the um...-a-bit-tone-deaf dept
So I understand the reasoning behind Buckmaster's post. It's certainly a pretty ridiculous situation when you're accused of doing something downright evil, and your competitors are being promoted for doing the opposite -- when the actual evidence suggests quite a different story. On top of that, there's a bit of a nasty history between Craigslist and eBay (which owns a percentage of Craigslist, which Craigslist is not at all happy about). However, I'm not so sure the "hey, they're worse than us, even though everyone thinks they're golden," response is going to win over many people. It comes off a bit tone deaf, honestly. Yes, the situation is ridiculous, but this is an emotionally driven topic, and the response people want to see is what Craigslist is doing proactively, not how others are worse.
by Mike Masnick
Wed, Jul 14th 2010 7:39am
from the don't-miss-it dept
Upon information and belief, eBay's familiarity with the confidential information provided by the Inventors allowed eBay to recognize the advantages it would realize by acquiring, modifying and integrating PayPal's payment platform with eBay's own e-commerce payment platform. eBay also knew or should have known that such modification and combination would violate Inventors' patent applications claims should they issue as patents.Yeah, ok. This gets even more ridiculous when you realize that XPRT is claiming that it was modifications that PayPal/eBay didn't roll out until 6 or 7 years later that are supposedly infringing.
As for the whole conspiracy stuff about eBay "unilaterally altering" the date on the agreement, it turns out there's not much there there. Basically, eBay and the inventors negotiated over an NDA to share some information, with the initial proposed NDA having a date of March __, 2002. That was, clearly, a placeholder, found in just about every contact negotiation you'll ever see. When eBay actually signed the NDA it replaced the placeholder with the date of the signature, April 30, 2003. That's how contracts work.
XPRT, however, suggests that eBay's own (equally questionable) patents on its own payment system were filed just before eBay signed this document, and that eBay failed to note the XPRT patent applications, despite knowing about them, as prior art. To make it even more fun, the complaint suggests that eBay effectively admitted that XPRT's technologies are patentable, because it tried to cover the same inventions with the claims in its own patent filings. Basically, this is a sneaky way to (try to) cut off a claim that XPRT's patents are invalid.
Anyway, the key patent in the battle is the following, which, while it was filed back in 2001, didn't actually issue until 2009. If you look through the history of this particular patent, you find a trail of rejection. The USPTO did a non-final rejection, then a final rejection of the patent in 2004 and 2005. The inventors appealed (and twice had problems of filing a "defective appeal brief"). The appeal also rejected the patent and sided with the examiner. The inventors then asked to have the patent reconsidered, and that was rejected. Then, they asked for the patent to be examined again, and, yet again, the USPTO rejected the patent -- with both a non-final and final rejection. Finally, after all those rejections, the inventors amended the patent some more and finally got it through in 2009. In other words, whatever they showed eBay way back in 2001 was not actually patentable, and what was patented in 2009 was quite different.
7,483,856: System and method for effecting payment for an electronic auction commerce commerce transaction
If you look at the other patents, they appear to be continuation patents on that patent, the common trick of updating an old patent application to make sure it covers what others are actually doing in the market, even if such things weren't really what the initial patent was intended to cover.
Oh, and finally, why are these guys demanding $3.8 billion for a basic idea that they failed to implement themselves? Well, they appear to be claiming a 6% royalty on all of PayPal's revenues, and then make a bunch of assumptions about how much PayPal is likely to make between now and 2024 when the patents will expire. In other words, it's simply making up how much eBay might make and demanding a rather large cut of that.