Why Google's 'We Won't Sue' Patent Pledge May Actually Suggest A Greater Proclivity To Sue Over Patents

from the don't-launch-patent-suits,-period dept

Google is getting some attention today for taking an official pledge that it won't initiate patent lawsuits over open source software on certain patents:
At Google we believe that open systems win. Open-source software has been at the root of many innovations in cloud computing, the mobile web, and the Internet generally. And while open platforms have faced growing patent attacks, requiring companies to defensively acquire ever more patents, we remain committed to an open Internet—one that protects real innovation and continues to deliver great products and services.

Today, we’re taking another step towards that goal by announcing the Open Patent Non-Assertion (OPN) Pledge: we pledge not to sue any user, distributor or developer of open-source software on specified patents, unless first attacked.
Initially, this pledge only covers 10 patents, but they claim they'll be adding more.

While this pledge is better than nothing, it feels like really weak sauce from a company that could and should go much further. For nearly Google's entire history, it simply did not act as a patent aggressor at all. It grew its own portfolio, and in some cases I believe it would use patents in countersuits against companies that sued it, but as far as I can remember, it was never an initial plaintiff in a patent lawsuit (feel free to point out an example case where that's not true). As far as I can tell, the first time Google acted as a patent aggressor was last summer, when its Motorola Mobility subsidiary went after Apple.

How much stronger and more powerful a statement would it have been for Google to not limit this patent anti-aggression pledge to just ten patents and just open source projects? The company easily could have come out and said: we won't sue over patents unless sued first. It would have been a clear and definitive statement that actually took a stand on a broken patent system -- and it would have been almost entirely consistent with the company's history. The fact that the company chose not to do this actually suggests that they're even more likely to be patent aggressors. This is unfortunate. It is not uncommon for larger companies to switch to a patent litigation strategy as they get bigger and as smaller upstarts start disrupting their markets, but Google had, in the past, indicated that it wouldn't follow that path. This pledge actually suggests an evolution in their thinking... and not in a good way.

As we've seen, historically, it's when companies start having trouble innovating and competing that they switch to litigating over patents. One hopes that this is not an indication that Google has reached that stage.


Reader Comments (rss)

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  1.  
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    Machin Shin (profile), Mar 28th, 2013 @ 1:42pm

    I might just be giving them far too much credit, but I can personally see why they would not come out and say they flat out never would sue. That is basically just giving a blanket license to every patent they own to everyone in the world.

    I do think they probably should have stepped up though and maybe said something along the lines of flat out they will never attack an open source group. That way they still can prevent someone, like say Apple, from just using tons of googles patients without licenses.

     

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  2.  
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    Anonymous Coward, Mar 28th, 2013 @ 2:09pm

    google apologist

    Mike, you're just a filthy google apologist - how much do they pay you to write articles for them?

     

    reply to this | link to this | view in thread ]

  3.  
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    Wally (profile), Mar 28th, 2013 @ 2:10pm

    So buying out Motorola Mobility, reissuing a Motorola Mobility lawsuit against Microsoft over video standards used by MS Silverlight (H.264), wireless components for XBox360 controllers, and demanding a sales ban for those reasons isn't active proclivity?

     

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  4.  
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    Anonymous Coward, Mar 28th, 2013 @ 2:20pm

    Re: google apologist

    Looks like you could use a sarc mark to let people know you're eing sarcastic. Only $999,000.99!

     

    reply to this | link to this | view in thread ]

  5.  
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    Forest_GS (profile), Mar 28th, 2013 @ 2:28pm

    I sadly saw something like this coming after the closure of Google Reader...

     

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  6.  
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    Souvik, Mar 28th, 2013 @ 3:19pm

    the problem with blanket statements

    First to get the fact straight. Microsoft first sued Motorola and not the other way around. http://arstechnica.com/tech-policy/2012/11/courts-will-decide-how-much-patent-cash-motorola-gets-fro m-microsof/
    We can argue about the whether Motorola should ask for 2.25% or lower, but the other side of the coin is that Microsoft would not want to pay anything at all. So in the event Google follow's Mike's advice, what option would they have to ever get anyone to pay for their FRAND patents.
    I agree that software patents are not good for innovation(three cheers for Red hat/Rackspace), but unilaterally disarming yourself is even worse for innovation and health of a company.

     

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  7.  
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    Souvik, Mar 28th, 2013 @ 3:19pm

    the problem with blanket statements

    First to get the fact straight. Microsoft first sued Motorola and not the other way around. http://arstechnica.com/tech-policy/2012/11/courts-will-decide-how-much-patent-cash-motorola-gets-fro m-microsof/
    We can argue about the whether Motorola should ask for 2.25% or lower, but the other side of the coin is that Microsoft would not want to pay anything at all. So in the event Google follow's Mike's advice, what option would they have to ever get anyone to pay for their FRAND patents.
    I agree that software patents are not good for innovation(three cheers for Red hat/Rackspace), but unilaterally disarming yourself is even worse for innovation and health of a company.

     

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  8.  
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    Mike Masnick (profile), Mar 28th, 2013 @ 3:47pm

    Re: the problem with blanket statements

    First to get the fact straight. Microsoft first sued Motorola and not the other way around.

    Didn't talk about the Microsoft case, but the Apple one.

    Microsoft would not want to pay anything at all. So in the event Google follow's Mike's advice, what option would they have to ever get anyone to pay for their FRAND patents.

    So? If they're in the business of making products instead of patents, that shouldn't be a big deal.

     

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  9.  
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    Wally (profile), Mar 28th, 2013 @ 4:02pm

    Re: the problem with blanket statements

    Microsoft sued because they were not being treated fairly compared to others who had gotten to use the components and standards in question, free of charge. Motorola sells Motorola Mobility to Google in the middle of a Motorola Mobility counter-suit asking an import ban to the US for all XBOX360's because they used "patented", "non-industry standard" components to allow their wireless controllers to communicate with the console, and that the console used H.264 (basically Flash compression)for it's online video streaming through NetFlix....

     

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  10.  
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    Suzanne Lainson (profile), Mar 28th, 2013 @ 4:46pm

    Do we still need big?

    My thought with all the big tech companies is do we need them anymore? What value do they bring to the table? What if transactions and ownership become so decentralized that no company or industry dominates?

    What does Google need with a same-day shipping service anyway? | VentureBeat: "... we could even posit that the Google of the future could combine same-day shipping with self-driving delivery trucks. That sounds crazy, but this is Google we’re talking about. ... Google is stretching its tendrils into every market these days, and it’s become increasingly unsurprising."

     

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  11.  
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    Wally (profile), Mar 28th, 2013 @ 4:46pm

    Re: Re: the problem with blanket statements

    The grudge between Apple and Motorola might go back as early as early to mid 2002. After a lot of digging, I found that a lot of the PowerMac G3 processors made by Motorola were consistently outperformed by the IBM versions. The Power Macintosh G4 was Motorola's last processor involvement with the AIM alliance and the peroformance wasn't entirely steallr compared to IBM versions of those either. Apple had chosen IBM alone to make the processors for the Power Macintosh G5 which was announced at the Job's keynote in 2003.

     

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  12.  
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    Steph Kennedy, IPTT (profile), Mar 28th, 2013 @ 4:52pm

    It's a trap!

    Maybe this is just Google's way of seeing who else will follow them and enact "defense-only" patent strategies? Start small and see who else blinks?

    Of course, if everyone followed that then no one would sue the trolls would be forced back under the bridge where they belong. We all know that won't happen until it's fiscally debilitating for the trolls, by which I mean companies adopt an "always fight back" strategy or a collaborative defense strategy, used when the trolls sue multiple people at a time (even though they now have to do it on separate dockets, thank you AIA).

    Wait...did I spell "debilitating" right?

    Anyway, I don't think they'll open up the treaty beyond those patents and here's why:

    http://iptrolltracker2.wordpress.com/2011/08/15/nortel-buyers-are-you-angry-yet/

    They need their stable locked and loaded to compete in the current patent climate, which is just dad. Even taking out the trolls won't help that, this is a Big Dawg to Big Dawg fight.

    Google's blinking on the stuff that doesn't matter...and they're getting the press they wanted for it.

    Just sayin',

    IPTT

     

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  13.  
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    Steph Kennedy, IPTT (profile), Mar 28th, 2013 @ 4:55pm

    Good God in heaven, the typos!

    1. ...*and* the trolls would be...
    2. ...which is just *sad*

    Still don't know about debilitating, I have a case of debilitating laziness or I'd look it up. ;)

    Just sayin',

    IPTT

     

    reply to this | link to this | view in thread ]

  14.  
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    Wally (profile), Mar 28th, 2013 @ 5:02pm

    "As we've seen, historically, it's when companies start having trouble innovating and competing that they switch to litigating over patents. One hopes that this is not an indication that Google has reached that stage."

    Mike, I am going to be quick to point out that Google only innovated one thing and one thing only....online advertising...and even then most of that was from actually acquiring other online ad agencies just so they could use those methods.

    Anyone thinking they actually created Android...think again. They financially backed Android Inc. stating "we believe in an open platform and we will fund your program" in a very Kickstarter, or (me showing my age) like Microsoft investing in Apple stock to keep Apple afloat in the late-mid 1990's, way. After the project was nearly finished, they bought Android Inc. outright and went on "innovating" on top of the work the original devs had already done.

    So what makes people think Google actually innovated anything new? They might not have been pioneers to ideas that Apple had been into (USB and Firewire as standard input connections.... first generation iMac G3 anyone?), but they never truly innovated as they claimed they had. Their initial search engine was about all the innovating they actually had done.

     

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  15.  
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    Wally (profile), Mar 28th, 2013 @ 5:23pm

    Re: Re: the problem with blanket statements

    The case involving the import ban (notice Motorola Mobility's MO here?) on the Xbox 360 occurred mid-Google acquisition of Motorola Mobility. The case from Motorola against was thrown away by the FTC just before the acquisition had legally been in affect. Once Motorola Mobility was legally owned as a subsidiary of Google, Google then allowed Motorola Mobility to refile the exact same patent infringement complainant asking for the same exact import ban.

    So what was Motorola Mobility complaining about? Two things:

    1. That the XBOX360 used Microsoft Siverlight...which uses the same compression standard as Flash for high definition video streaming (codec standard H.264).

    2. The controllers connected to the console wirelessly via IrDA protocols.

     

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  16.  
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    Ray, Mar 28th, 2013 @ 6:37pm

    Re: the problem with blanket statements

    To get the fact right, Microsoft never said they won't pay. They just say the price is not reasonable. They are actually asking the court to set a fair price for Motorola patent.

     

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  17.  
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    Sonja (profile), Mar 29th, 2013 @ 12:50am

    Re:

    Google's also making advances/innovating in areas of data storage, indexing etc. And I am sure, there are hardware and network advances too. Ever thought about how they cope with all the info that's on their servers? Their innovations are not purely advertising. All this just happens in the background thats all.

    when I find the link I'll paste it here.

     

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  18.  
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    Sonja (profile), Mar 29th, 2013 @ 12:57am

    Re: Re:

    here's one, though not the one I was thinking of and its a bit old...

    http://www.datacenterknowledge.com/archives/2009/11/30/google-patent-reveals-data-center-i nnovations/

    though I figure only systems administrators will appreciate the pain points and innovation in that article

     

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  19.  
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    Anonymous Howard (profile), Mar 29th, 2013 @ 2:20am

    Re:

    I am going to be quick to point out that Google only innovated one thing and one thing only....online advertising

    Their initial search engine was about all the innovating they actually had done.


    You defeat yourself pretty neatly.

     

    reply to this | link to this | view in thread ]

  20.  
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    Suzanne Lainson (profile), Mar 29th, 2013 @ 5:16am

    Re: Do we still need big?

    Quotes from Digital Disconnect: How Capitalism is Turning the Internet Against Democracy.

    "As ‘killer applications’ have emerged, new digital industries have gone from competitive to oligopolistic to monopolistic at breakneck speeds.”

    “It is true that with the advent of the Internet many of the successful giants -- Apple and Google come to mind -- were begun by idealists who may have been uncertain whether they really wanted to be old-fashioned capitalists. The system in short order has whipped them into shape. Any qualms about privacy, commercialism, avoiding taxes, or paying low wages to Third World factory workers were quickly forgotten. It is not that the managers are particularly bad and greedy people -- indeed their individual moral makeup is mostly irrelevant -- but rather that the system sharply rewards some types of behavior and penalizes other types of behavior so that people either get with the program and internalize the necessary values or they fail.”

    More here: Digital Grab: Corporate Power Has Seized the Internet | Common Dreams

     

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  21.  
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    Wally (profile), Mar 29th, 2013 @ 6:09am

    Re: Re: Re:

    Like I said, the only innovation stems in their search engine. Also, cloud services have been around for ages. Parallel computing and mass storage has been around longer than what Google considers their own. Anyone with a sense of computer history can tell you that.

     

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  22.  
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    Wally (profile), Mar 29th, 2013 @ 6:13am

    Re: Re:

    "...and even then most of that was from actually acquiring other online ad agencies just so they could use those methods."

    Way to cherry pick words. I think that the rest of my sentence which you minced indicates that I haven't defeated myself ^_^ Good try though ^_^

     

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  23.  
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    Sonja (profile), Mar 29th, 2013 @ 7:08am

    Re: Re: Re: Re:

    By you saying that, it means cars should never have any new technology or new innovations in them because we have cars already? So because all the things you mentioned above have been around a while and even if there is a new innovation, its not innovative? Wow

    I'm disagreeing with that, but hey. I am not going to put a case forward with that type of thought pattern, its just going to waste my time.

     

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  24.  
    identicon
    Anonymous Coward, Mar 29th, 2013 @ 7:10am

    Cynical blogger is cynical. Seems to me you're reading way too much into their statement. Actions speak louder than words so I'll be adopting a "wait and see" approach.

     

    reply to this | link to this | view in thread ]

  25.  
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    Wally (profile), Mar 29th, 2013 @ 8:25am

    Re: Re: Re: Re: Re:

    "By you saying that, it means cars should never have any new technology or new innovations in them because we have cars already? So because all the things you mentioned above have been around a while and even if there is a new innovation, its not innovative? Wow"

    "http://www.datacenterknowledge.com/archives/2009/11/30/google-patent-reveals-data-center-i nnovations/"

    So doing what kludgers had already done over the years and patenting it is innovation? It's called Air Conditioning. Desktop PC's use fans like the patent you showed all the time for the same purpose. Hell that is how SLI and Crossfire video card systems cool the multiple GPU's.

     

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  26.  
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    Anonymous Howard (profile), Mar 29th, 2013 @ 9:16am

    Re: Re: Re:

    Didn't cherry picket anything, you talked bollocks in the first place.

    Also worth mentioning, that innovation isn't restricted to original ideas. Google matured a number of preexisting technologies, including ads and full text search.

     

    reply to this | link to this | view in thread ]

  27.  
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    Wally (profile), Mar 29th, 2013 @ 10:23am

    Re: Re: Re: Re:

    "I am going to be quick to point out that Google only innovated one thing and one thing only....online advertising"

    There was more after that. I clearly explained that they bought out companies and relabeled those company's products as there own.

    Notice how I am making the same arguments about innovation (or lack thereof) against Google that people make about Apple?

     

    reply to this | link to this | view in thread ]

  28.  
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    Wally (profile), Mar 29th, 2013 @ 10:28am

    Re: Re: Re: Re: Re:

    My full first statement was this:
    " I am going to be quick to point out that Google only innovated one thing and one thing only....online advertising...and even then most of that was from actually acquiring other online ad agencies just so they could use those methods."

    That's a whole different context compared to what you picked out of there which means you adhommed your argument.

    Now as to my supposedly contradictory statement, let's rephrase that:

    *Google's search engine the only true innovation from Google.....

     

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  29.  
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    Wally (profile), Mar 29th, 2013 @ 10:44am

    Re: Re: Re: Re:

    Your statement implies that I am only making this point:

    "I am going to be quick to point out that Google only innovated one thing and one thing only....online advertising"

    When I fully really said this:
    " I am going to be quick to point out that Google only innovated one thing and one thing only....online advertising...and even then most of that was from actually acquiring other online ad agencies just so they could use those methods."

    The italicized bits in my statement clearly says that their advertising scheme is not innovative so the idea that Google innovated web advertising is canceled out in the end.

    By cherry picking Wally's statement you changed the context and tone of his comment.

    "Their initial search engine was about all the innovating they actually had done."

    That actually compliments the non cherry-picked context of my aforementioned paragraph about advertising but it is further pulled out by my initial statement that you chose to pick from:

    "They might not have been pioneers to ideas that Apple had been into (USB and Firewire as standard input connections.... first generation iMac G3 anyone?), but they never truly innovated as they claimed they had. Their initial search engine was about all the innovating they actually had done."

    I am glad you got the point at lease for this one, but you got the tone and context of my advertising statement wrong.

     

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  30.  
    identicon
    TheBasicMind, Mar 29th, 2013 @ 11:23am

    Naive

    You've fallen for it.

    Google's stand on patents is entirely consonant with their weak position vis-a-vis technology patents compared with the companies they are competing with and their position regarding IP is intellectually bankrupt.

    They have always been the worst kind of aggressor. One who appropriates the IP of the small guy. They have built their business on micro theft on a massive global scale, where the extent of the theft was always too small for the individual affected to take them on. They did it with video, with news and with images and with books. They adopt the stance they do because they have a fiercely closed protected central database service. When your customers have to come to a central service kept under lock and key, you don't worry about people copying your tech out in the world. Indeed you encourage it because the more tech "out there" there is connecting to your central service the more money you make.

    They think their philosophy re: patents can be kept in a bubble where the patents covered are only of the kind that are important to their competitors. But at the boundaries of this bubble their principles come to a screeching halt. If their position wasn't intellectually bankrupt, they would extend this philosophy to their adwords patents which is where they really make their money. But of course they won't do that in million years. Instead what they are engaged in is a shallow PR stunt to get gullible developers on board and to keep the world suckling at the teat of their "free" services.

     

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  31.  
    identicon
    TheBasicMind, Mar 29th, 2013 @ 11:37am

    Naive

    You've fallen for it.

    Google's stand on patents is entirely consonant with their weak position vis-a-vis technology patents compared with the companies they are competing with and their position regarding IP is intellectually bankrupt.

    They have always been the worst kind of aggressor. One who appropriates the IP of the small guy. They have built their business on micro theft on a massive global scale, where the extent of the theft was always too small for the individual affected to take them on. They did it with video, with news and with images and with books. They adopt the stance they do because they have a fiercely closed protected central database service. When your customers have to come to a central service kept under lock and key, you don't worry about people copying your tech out in the world. Indeed you encourage it because the more tech "out there" there is connecting to your central service the more money you make.

    They think their philosophy re: patents can be kept in a bubble where the patents covered are only of the kind that are important to their competitors. But at the boundaries of this bubble their principles come to a screeching halt. If their position wasn't intellectually bankrupt, they would extend this philosophy to their adwords patents which is where they really make their money. But of course they won't do that in million years. Instead what they are engaged in is a shallow PR stunt to get gullible developers on board and to keep the world suckling at the teat of their "free" services.

     

    reply to this | link to this | view in thread ]

  32.  
    identicon
    TheBasicMind, Mar 29th, 2013 @ 11:37am

    Naive

    You've fallen for it.

    Google's stand on patents is entirely consonant with their weak position vis-a-vis technology patents compared with the companies they are competing with and their position regarding IP is intellectually bankrupt.

    They have always been the worst kind of aggressor. One who appropriates the IP of the small guy. They have built their business on micro theft on a massive global scale, where the extent of the theft was always too small for the individual affected to take them on. They did it with video, with news and with images and with books. They adopt the stance they do because they have a fiercely closed protected central database service. When your customers have to come to a central service kept under lock and key, you don't worry about people copying your tech out in the world. Indeed you encourage it because the more tech "out there" there is connecting to your central service the more money you make.

    They think their philosophy re: patents can be kept in a bubble where the patents covered are only of the kind that are important to their competitors. But at the boundaries of this bubble their principles come to a screeching halt. If their position wasn't intellectually bankrupt, they would extend this philosophy to their adwords patents which is where they really make their money. But of course they won't do that in million years. Instead what they are engaged in is a shallow PR stunt to get gullible developers on board and to keep the world suckling at the teat of their "free" services.

     

    reply to this | link to this | view in thread ]

  33.  
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    Suzanne Lainson (profile), Mar 29th, 2013 @ 11:51am

    Re: Naive

    As big companies go, Google is better than many. But it is still a big, powerful company looking out for its best interests. And that isn't always in society's best interest. The tech community gives lip service to transparency, but they often mean as it applies to others, not themselves.

    POWER-CURVE SOCIETY: The Future of Innovation, Opportunity and Social Equity in the Emerging Networked Economy | The Aspen Institute: "The industries that are most resistant to any change in the status quo, said [Michael Fertik, Founder and Chief Executive Officer of Reputation.com], are Internet-based media incumbents such as Google and Facebook, which argue that new requirements to protect privacy will destroy innovation. Shane Green of Personal said that when he talks to people at large Internet companies that gather lots of personal data, he is 'amazed' at their resistance to disclosing how they capture data, what they do with it and how much money they make from it. 'They sound just like Ma Bell from way back,' said Fertik. 'They have absolutely no interest in talking about privacy. Why won’t [these companies] open up and talk about how they capture data and what they do with it? Because they’re controlling things in a way that benefit them and not everyone else.'”

     

    reply to this | link to this | view in thread ]

  34.  
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    nasch (profile), Mar 31st, 2013 @ 1:39pm

    Re: Naive

    They have built their business on micro theft on a massive global scale, where the extent of the theft was always too small for the individual affected to take them on.

    What exactly have they been stealing?

     

    reply to this | link to this | view in thread ]


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