There's been a lot of talk this week about Intel building DRM into its Sandy Bridge chip. I had initially passed on writing this story, as we seem to hear the same thing every few years. Back in 2005, for example, there were similar stories about Intel planning DRM built into its chip. However, what got me interested enough to actually write about this is Intel's bizarre response to the press coverage, in which they play one of the most ridiculous games of corporate doublespeak in ages. First, they insist it's not DRM. They say that right up in the headline: "No, It's Not DRM" Then they kick it off with an explanation of what DRM is, followed up by again saying: "I am not going to get into a discussion about the pros and cons of DRM in this blog; but I will say that Intel Insider is NOT a DRM technology." Ok. So what is it. That's in the next paragraph:
Intel Insider is a service that enables consumers to enjoy premium Hollywood feature films streamed to their PC in high quality 1080P high definition. Currently this service does not exist because the movie studios are concerned about protecting their content, and making sure that it cannot be stolen or used illegally. So Intel created Intel insider, an extra layer of content protection.
Um. So it is DRM. You just said it's not, and then described DRM. Content protection is DRM. I'm not sure exactly what Intel thinks it's doing here. If they say it's not DRM and then explain how it is DRM, they think people will think it's not DRM? If you're going to include DRM, just admit that it's DRM. Then we can argue about whether or not it's smart (and, no, it's not).
We were among the many folks who wrote about the supposed leak of the HDCP master key this week, leading to an interesting discussion in the comments -- including a comment from a big time DRM supporter (he's even written a book about DRM) who scolded us for getting the whole story wrong, insisting that there was no such thing as a master key and that Hollywood never would have agreed to HDCP if there were such a thing. This struck me and some others as odd, as many of us have followed the discussions on HDCP, and I tended to believe Ed Felten's explanation of how HDCP works, which indicated that there was, in fact, a master key. That was from a few years ago, but Felten also just posted another explanation about how HDCP works, and it still seems to involve a master key.
Today, it looks like HDCP -- the DRM that the MPAA insisted was required to allow them to securely distribute movies prior to DVD release -- has been broken. As a result, anyone who is motivated can make an exact digital copy of a "protected" high definition movie. Since all it takes is one motivated individual to make that first copy, this DRM (like every type of DRM before it) now serves absolutely no purpose but to inconvenience legitimate customers.
THREsq has an interesting story about how the guy, Louie Psihoyos, who won an Oscar for best documentary this year for The Cove, apparently has a pretty quick legal trigger finger against anyone using a photograph he took 15 years ago. He's sued a bunch of companies over the years, and the latest is the BBC and CBS. He claims that it cost him $100,000 to create the photograph, which can be seen here:
And, yes, THREsq is showing the photo as well. In these two cases, it seems like clear fair use, since we're both reporting on the photo itself. However, where the BBC potentially got into trouble is in using the same photo to illustrate an article about Intel betting on TV and video content. What's odd, however, is that the reason CBS is being sued is "that CBS Marketing appropriated it for commercial display at the 2009 Intel Developers Forum." This makes me wonder if CBS Marketing used the image at the event that the BBC was reporting on, leading the BBC to believe it had the ability to use that image. That could make the legal fight a bit more interesting.
However, the article also notes that Psihoyos has sued a bunch of times in the past over this photo as well. For example, a year ago, he sued Apple for the second time over this photo. While that lawsuit was eventually settled, the details suggest that Psihoyos was barking up the wrong tree on that lawsuit. It wasn't a case of Apple using the image, but a random iPhone app developer. You would think that Apple would have a clear DMCA safe harbor response, which would protect it from such a lawsuit, so I'm a bit surprised they ended up settling.
Late last year, we wrote about the latest in an unfortunately long line of overreaching trademark lawsuits filed by Intel. Intel tends to act as if no one else can use the word Intel at all, leading it to get involved in legal disputes with companies in industries about as far away from Intel's business as can be -- including a travel agency and a maker of jeans. The dispute last year, was focused on the small producer of a newsletter about Latin America, which used the domain name LatinIntel.com. There was no way anyone would be confused by this site or think that it was somehow associated with Intel, even using my favorite "moron in a hurry" test.
So, we were happy, earlier this year, to get a report that Intel had dropped the lawsuit. Except... that turned out to not be exactly true. Intel got in touch quickly to insist that they had only dropped it because they planned to refile the lawsuit with much more detail to make their case. What Intel left out was the pretty serious skepticism the judge had expressed concerning their original filing:
The key lines here being:
It really is lacking in enough specificity which
would demonstrate that there was confusion or that you're even
addressing the same markets. I mean, my understanding is that
there may be no customer overlap at all in connection with
Intel, of course, shot back with the claim that this has nothing to do with likelihood of confusion, but it was really about dilution. Dilution is a more recent element of trademark law, which was not considered applicable for quite some time, but today has become more widely accepted, and keeps expanding in dangerous ways. It simply goes against the basic concept of trademark law -- which is supposed to be about protecting consumers from buying a product that is falsely labeled. That's why trademark law is limited to the areas where your trademark is actually being used in commerce. The judge's point that there is no customer overlap should be all that matters here. At that point there is no trademark issue. At all.
But Intel has, in fact, now refiled the lawsuit, and tries to get around this claim by pointing out that both Intel and this newsletter have customers that are Fortune 500 companies. Seriously. And then it still claims there is customer confusion, despite the judge making it pretty clear that he didn't believe there was any customer confusion at all:
I asked the spokesperson from Intel who had contacted us about the last post if he could offer an explanation of why it made sense for Intel to continue to pursue this lawsuit, and I got back the basic explanation for why dilution is considered trademark infringement -- which didn't answer the question I was asking. But it appears that Intel's definition of dilution goes way beyond even the current (already troubling) concept of dilution in trademark law. The way Intel sets it up, no one can use the word "intel" even if it's already a widely generic term in a totally different industry (as is the case with the newsletter). That makes no sense.
While I'm sure Intel's lawyers would claim that they have to defend their trademark to avoid it being declared generic, that's also a misrepresentation of trademark law. You do have to defend, but only in cases where there's actual confusion or actual risk of dilution. Someone doing business with a term that is generic in that industry, which is about as far away from Intel's industry as is possible, is not doing any harm, whatsoever, to Intel's mark. Intel should have just dropped the case and left it alone.
Mark B points us to an interesting and well-written ruling in a lawsuit where Silvaco Data Systems lost its argument that Intel and others could be found liable for violating Silvaco's trade secrets, because those companies purchased software from another company who had violated Silvaco's trade secrets.
The quick background is that another company -- Circuit Semantics Inc., (CSI) -- has apparently used trade secrets from Silvaco in creating its software. Silvaco won its lawsuit against Circuit Semantics, barring further sale of its code. Silvaco then sued buyers of CSI's code, including Intel, claiming that they, via CSI, had also violated Silvaco's trade secrets. The ruling against Silvaco is well argued and smashes Silvaco's argument -- noting the difference between the source code, which contained the trade secrets, and the compiled software, which Intel obtained. The judge points out how silly Silvaco's arguments are repeatedly, calling one of the main arguments "a
smokescreen, a red herring, a straw man," and later saying of Silvaco's argument: "strained is too small a word to describe Silvaco's argument." You can read the full decision here:
Separately, this ruling is getting extra attention from some lawyers because of the judicial smackdown the judge made concerning the rather wasteful decision to include excess information in the filings:
Although this case was decided largely on the pleadings, it has somehow generated an appendix over 8000 pages in length. Seldom have so many trees died for so little. We see three causes for this wretched excess....
It then goes on to detail three different bad choices made by the lawyers which made the filings so ridiculously large. Basically, the lawyers seemed to throw in all sorts of things that weren't necessary, and which the judges could have easily been pointed to that information to retrieve on their own.
Last year, we wrote about Intel's trademark lawyers getting over aggressive in suing the owners of the Mexico Watch newsletter for using the domain name LatinIntel.com In this case, it was clear that "intel" was the commonly abbreviated version of "intelligence," and no one was going to be confused and think that a newsletter about Mexico had anything to do with a company making microprocessors. For whatever reason, it appears that common sense has finally prevailed, and we've been alerted to the fact that Intel has dropped its lawsuit. Or not. Instead, it appears the details are that the court dismissed most of the claims, but left Intel the right to amend and refile its complain -- which Intel tells us it's going to do. We've asked for more info from Intel on its reasoning.
Of course, a simpler course of action would have been to have not sued in the first place...
Richard Corsale writes in to let us know about how popular electronics e-commerce site NewEgg apparently received 300 totally fake Intel processors and at least some of them were sold. They're not processors at all. They're just made to look like them from the outside. NewEgg's initial response was to claim that its supplier shipped them demo boxes by accident -- but Intel is claiming that's not true, and the boxes are not official Intel demo boxes, but counterfeit demo boxes. Then, to make the story even odder, many publications reported that NewEgg's supplier for these fake processors was a company called D&H -- and D&H's response to all of these stories is to send out legal nastygrams to anyone reporting on the story and mentioning D&H. Perhaps it's worth giving D&H the benefit of the doubt, but why not just come out and say "hey, it wasn't us," and get NewEgg to confirm or deny who provided the fake processors before sending out a legal threat?
As many of our readers already know, we've been producing several topical conversations on a variety of subjects via the Insight Community, and we'd like to introduce our newly sponsored site, IT Innovation, brought to you by Sun Microsystems and Intel. (You may have missed the subtle new 'IT Innovation' link added to the top of our page.) First and foremost, the goal of this effort for us here at Techdirt is to create interesting and useful content for our readers in the realm of server hardware and datacenter management.
We'll be covering trends in datacenters and skills for IT managers -- and asking the Insight Community for its input on generating relevant insights for future conversations. And as with any natural conversation, we're not 100% sure where the topics will lead because the ideas will develop and evolve as we discuss them. But we'll start with current trends, as well as far off predictions, advice and tips for IT managers, business tools, and try to delve deeper into the subjects that resonate with the community participants. If you're already a member of the Insight Community, you can contribute your thoughts on the datacenter upgrade process. If you're not already a member, you can join now.
Chip giant Intel has a bit of a reputation for being a trademark bully at times, threatening or suing many companies just for having "intel" in their name somewhere -- including a travel agency and a jeans company. Now, before anyone brings it up, yes, as a trademark holder the law requires you to enforce your trademark against infringement, lest it become considered "generic" (such as xerox machines, kleenex tissues, aspirin and other brand names that became generic). But, the key in all of those generic situations was that the use was applied to things that directly competed with the original brand's products. People referred to other tissues as "kleenex" and it stuck. Intel's lawyers seem to go out of their way to find potential infringement where there obviously is none at all.
Paul Alan Levy alerts us to the latest such case, where Intel has sued the operators of the Mexico Watch newsletter, because its domain is LatinIntel.com. Of course, the reason for that is that it is using the commonly accepted abbreviation of "intel" as short for "intelligence." It's common shorthand, especially within government circles, to refer to gathered intelligence as simply "intel." The owners of the site explained this to Intel, and in return were given a boilerplate explanation about trademark law, insisting that since Intel's trademark is so valuable, it still has to stop others from using it -- even if they're in a totally different business, which is an interesting interpretation of trademark law, and one not supported by the courts in most cases.
More importantly, no one is going to look at LatinIntel.com and confuse it for the world's largest computer chip maker. No one is going to look at that site and wonder how come they can't order a Centrino processor. There's simply no confusion at all. Even worse, it appears that Intel's lawyers dragged out this situation far too long. They first contacted the site back in 2007, and the site's owner responded with a clear explanation of why the name was not infringing. Since then, there have been periodic bursts of contact from different Intel lawyers (it apparently seems to change each time), followed by months of silence, before a new group of lawyers starts pestering the site again. Finally, after more than two years of this back and forth, Intel sued Mexico Watch, even though it's not even close to competitive and any "moron in a hurry" (as the popular trademark test notes) would clearly know the difference between a site about Mexican politics and a company selling microprocessors.