Techdirt. Stories about "akamai" Easily digestible tech news... http://www.techdirt.com/ en-us Techdirt. Stories about "akamai"http://www.techdirt.com/images/td-88x31.gifhttp://www.techdirt.com/ Fri, 31 Aug 2012 14:57:19 PDT Appeals Court Says Companies Can Be Guilty Of Inducing Infringement... Even If There Is No Direct Infringement Mike Masnick http://www.techdirt.com/articles/20120831/12080220232/appeals-court-says-companies-can-be-guilty-inducing-infringement-even-if-there-is-no-direct-infringement.shtml http://www.techdirt.com/articles/20120831/12080220232/appeals-court-says-companies-can-be-guilty-inducing-infringement-even-if-there-is-no-direct-infringement.shtml wrote about this a little over a year ago. It actually involved CAFC reviewing two separate, but similar cases, concerning whether or not companies could be found liable for inducing infringement if no single party actually violates the patent, but a group of different parties, combined, serve to infringe on all the claims of the patent. This is tricky for a variety of reasons. In one case, involving Akamai suing Limelight, Limelight doesn't directly infringe on all of the claims of Akamai's patents, because some of the steps are completed by Limelight users, rather than by Limelight itself. Similarly, in the case of McKesson v. Epic Systems, Epic doesn't infringe on any of the claims of McKesson's patent -- but in combination, its users may do so, though none do so individually.

So here's where it gets tricky. The lower court had found that since no single party infringes on a patent, then there's no direct infringement. And if there's no direct infringement then there's no infringement that the defendants could "induce." This seems reasonable. The fear, with these cases, was that CAFC would say that multiple different parties, each doing different pieces that are covered by claims, could be lumped together into direct infringers, even if none of them fully infringes. That could create massive liability for purely innocent bystanders who do a minor link in a chain.

Thankfully, CAFC does not go that far in its ruling (though one dissenting judge felt it should). Instead, it just basically wipes out the concept that you can't have inducement without direct infringement, arguing that inducement is apparently something entirely separate from direct infringement. That's... troubling. You can see the reasoning (and it's worth reading the whole thing), in that they're saying if multiple parties, through their separate actions, combine to infringe -- and all those actions are directed by a third party -- then isn't it reasonable to assume that that party is still "inducing" infringement? But, as the dissenters note, that seems to be making up a wholly new interpretation of inducement, far from the one that Congress or the courts has allowed in the past. As one of the dissents notes:
The majority opinion is rooted in its conception of what Congress ought to have done rather than what it did. It is also an abdication of this court’s obligation to interpret Congressional policy rather than alter it. When this court convenes en banc, it frees itself of the obligation to follow its own prior precedential decisions. But it is beyond our power to rewrite Congress’s laws. Similarly, we are obliged to follow the pronouncements of the Su-preme Court concerning the proper interpretation of those acts.
In other words, CAFC's majority ruling here has gone off the reservation in a big way to fashion a ruling of how it thinks the world should work, but not in accordance with what the law actually says.

It also opens up a huge can of worms. Because even if no one party is actually infringing, suddenly third parties can be liable for inducing infringement. Infringement that... um... didn't occur. So that seems like a problem. Of course, it would have been even worse if they had gone with the plan that cobbled together direct infringement by all the separate players, even those who were doing very minor things (such as tagging content, in the Akamai case).

Either way, it seems likely that some of the parties here will ask the Supreme Court to weigh in, and hopefully they'll clarify that without someone infringing directly, there is no infringement to "induce."

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]]> going-off-the-reservation http://www.techdirt.com/comment_rss.php?sid=20120831/12080220232 Fri, 12 Aug 2011 04:07:44 PDT Patent Holders Trying To Drag 3rd Parties Into Patent Disputes Mike Masnick http://www.techdirt.com/articles/20110811/17233715482/patent-holders-trying-to-drag-3rd-parties-into-patent-disputes.shtml http://www.techdirt.com/articles/20110811/17233715482/patent-holders-trying-to-drag-3rd-parties-into-patent-disputes.shtml drag third parties into patent lawsuits if those third parties do one part of a claim, while someone else does the rest. If you think about this, and are aware of current patent lawsuits, this is a horrifying prospect. Think Lodsys on steroids, where individual consumers could be sued for patent infringement, merely for making use of what a service provider offers. For example, in one of the two cases, Akamai is claiming patent infringement, and the issue is one claim in the patent. All of the steps of that one claim are handled by a third party... except for "tagging," which is done by users. If Akamai's argument holds, then users of Limelight's services who do "tagging" could be liable for patent infringement without having any idea at all that they're at risk, and without them even violating the vast majority of what's claimed in the patent.

While the patent holders are claiming that without this the patents would be unenforceable, the EFF filing reasonably argues that the problem is that the patents were drafted poorly, and patents should make clear that when they list out a series of steps, those steps are performed by a single party. The arguments by the patent holders would put almost everyone at risk of being directly liable for patent infringement without them realizing it. We see broad patent claims asserted against various internet companies all the time. Imagine if every user of those services could suddenly be sued for infringement as well, just because clicking on a button, adding a tag or whatever, helped "infringe" on the patent in question in combination with the service provider?

As the filing notes, there is simply no social benefit to imposing liability on such third party users. They're hardly in a position to stop the infringement (let alone even know that it's going on). All they're doing is using a service that is offered to them.

Not surprisingly, one of the companies making this argument, McKesson, is using copyright law to back this fundamentally new interpretation of patent law. Specifically, McKesson cites the Supreme Court's terrible Grokster decision on third party liability, and is trying to extend it to patent law. Of course, McKesson does not even properly cite Grokster, falsely claiming that Grokster claims "a defendant's decision to profit from infringement 'while declining to exercise a right to stop or limit it'" makes one liable. That's simply not the Grokster rule at all. Grokster set out a specific set of criteria under which a third party would be liable, but "declining to exercise a right to stop or limit" is not nearly enough.

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]]> troll-expansion http://www.techdirt.com/comment_rss.php?sid=20110811/17233715482 Thu, 20 Mar 2008 23:53:58 PDT Limelight Level 3 Gears Up For Patent Nuclear War Mike Masnick http://www.techdirt.com/articles/20080319/185012591.shtml http://www.techdirt.com/articles/20080319/185012591.shtml Update: Made some updates to this post as I misread the original article, suggesting that it was Limelight, not Level 3, that bought the patents. Earlier this month, we wrote about Akamai's patent lawsuit against competitor Limelight. Akamai had dominated the content delivery network space for many years, but Limelight and others have made serious inroads lately, putting a ton of competitive pressure on Akamai. Akamai's response to sue for patent infringement is exactly the sort of societal negative that shows how the patent system harms society. To reinforce that, it appears that, rather than just further innovating, others are now spending money that could have (and should have) gone to research and development on buying up its own patent portfolio to act as a nuclear stockpile to fight off Akamai. In this case, Level 3 (not Limelight, as originally stated in this post), is buying up patents from IBM. End result? Lots of money wasted on patents and patent infringement lawsuits, less innovation in the space and less competition. How can that possibly be a result that promotes the progress?

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]]> wasted-money http://www.techdirt.com/comment_rss.php?sid=20080319/185012591 Tue, 4 Mar 2008 13:57:30 PST When The Competition Gets Tough, Akamai Sends Out The Patent Attorneys Mike Masnick http://www.techdirt.com/articles/20080303/081818408.shtml http://www.techdirt.com/articles/20080303/081818408.shtml profits of Akamai, who is considered the leader in the space. So what's a company like Akamai to do? Well, they could spend money on continuing to innovate, offering a better product and providing reasons why customers would want to buy services from them... or they could just sue their competitors for patent infringement. It looks like Akamai is going with door number 2. Not surprisingly, since juries quite often side with patent holders, a jury has ruled in favor of Akamai in a patent infringement lawsuit over a patent that some are noting appears to be rather obvious in that it describes a process for hosting online content via distributed servers. While it's not clear how obvious this patent really may be, what does seem clear from multiple comments on Slashdot is that there appears to be a fair amount of prior art, including an earlier patent that appears to cover similar territory. Either way, it appears that many different companies and individuals have been trying to tackle this problem in similar ways, and that there's marketplace demand for products in the space. So why should one company be given a monopoly over the entire space?

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]]> what's-wrong-with-a-little-competition? http://www.techdirt.com/comment_rss.php?sid=20080303/081818408 Thu, 17 Jan 2008 20:34:20 PST Akamai Does Not Violate Network Neutrality Mike Masnick http://www.techdirt.com/articles/20080110/152423.shtml http://www.techdirt.com/articles/20080110/152423.shtml double dip in internet charges by ending neutrality claim that the internet has never been neutral, and point to systems like Akamai as an example of this. However, as we've explained in the past, this is simply untrue. It's purposely stretching the definition of network neutrality to make a point that isn't supported by the facts. Services like Akamai help make the internet faster for everyone. It doesn't discriminate. It holds to the "end-to-end" principle that a connection you buy to the internet entitles you to reach any content across that entire network. That's not what AT&T is looking to do. It's claiming that you really only have access to the cloud in the middle, and someone needs to pay for the second half of that connection from the middle out to the server you're accessing.

Tim Lee (who, like me, does not support net neutrality legislation) has ripped apart a paper that claims that Akamai is an example of why the internet is not neutral. Lee notes that the author of the paper doesn't even seem to understand how Akamai works, and provides a nice (more technology focused) explanation for why content caching systems have little to do with the network neutrality discussion: "A network is neutral if it faithfully transmits information from one end of the network to the other and doesn't discriminate among packets based on their contents. Neutrality is, in other words, about the behavior of the routers that move packets around the network. It has nothing to do with the behavior of servers at the edges of the network because they don't route anyone's packets."

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]]> end-to-end-vs-end-to-middle http://www.techdirt.com/comment_rss.php?sid=20080110/152423 Wed, 10 Oct 2007 06:03:00 PDT BitTorrent Entering The CDN Space? Mike Masnick http://www.techdirt.com/articles/20071009/130320.shtml http://www.techdirt.com/articles/20071009/130320.shtml "BitTorrent Goes Legit with Content Delivery Service." BitTorrent, itself, has always been "legit." What's really interesting here is that the folks behind BitTorrent are actually looking to expand the usefulness of the basic BitTorrent concept by using it to enter the content delivery space.

As we noted over the summer, there's growing competition in the Content Delivery Network (CDN) space, once dominated by Akamai. The idea is to help larger content providers handle large amounts of bandwidth efficiently, traditionally by placing copies of the content at various servers around the world. This does two things: offload the bandwidth from a single source and also bring the content physically closer to different areas, thus decreasing some of the latency issues. Of course, BitTorrent can do both of those things in potentially a much more efficient manner, by using the excess of bandwidth of all different people to simply handle small parts of the transfer. While BitTorrent tries to position its offering as something that can work with the CDN's of the world, if it really works well, it could effectively obliterate the need for a traditional CDN. If you thought that the traditional competition in the space was obliterating profits, having something like BitTorrent's Delivery Network Accelerator could completely upend the market. While the press may go for the sensationalistic "piracy" angle (which this has nothing to do with), if this works, it could change the basic economics for large publishers in distributing content online -- and that's quite a big deal.

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]]> there's-money-in-boring-tech http://www.techdirt.com/comment_rss.php?sid=20071009/130320 Tue, 7 Aug 2007 16:53:02 PDT Competition Decimates Profits In CDN Space Joseph Weisenthal http://www.techdirt.com/articles/20070807/072016.shtml http://www.techdirt.com/articles/20070807/072016.shtml red hot CDN space, where it competes with the likes of Akamai and LimeLight Networks. Since then, shares of Akamai and LimeLight have taken an utter shellacking, as investors wake up to the realization that all of this competition won't be very good for profits. Indeed, it seems that a bitter price war has already broken out, as the core CDN product rapidly becomes a commodity. This trend wasn't particularly hard to see, but the speed at which it's engulfed the industry does come as a bit of a surprise.

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]]> deliver-me http://www.techdirt.com/comment_rss.php?sid=20070807/072016 Fri, 13 Jul 2007 18:48:00 PDT CDN Space Getting More Crowded Joseph Weisenthal http://www.techdirt.com/articles/20070713/081706.shtml http://www.techdirt.com/articles/20070713/081706.shtml recently went public with much success, and now Korean Firm CDNetworks says it will soon enter the US market (via Data Center Knowledge). This is great news for content firms, which should benefit from price competition in the space. The question for Akamai is whether its product can be more than a commodity. If any company can do what it can with enough infrastructure investment, then ultimately competition will just come down to price, which is the last thing it wants to see.

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]]> deliverance http://www.techdirt.com/comment_rss.php?sid=20070713/081706