by Mike Masnick
Mon, May 16th 2011 6:58pm
by Mike Masnick
Fri, May 6th 2011 10:15am
from the this-will-not-end-well dept
However, a new ruling in the 9th Circuit appeals court (which has a reputation for somewhat wacky rulings on intellectual property issues) may open the floodgates on these kinds of lawsuits. The ruling is an en banc ruling (meaning heard by all of the judges in the court), and it overturned the earlier ruling from the same court that was just done by a three judge panel. That means the only place to go from here is the Supreme Court, and it's not at all clear that the Supreme Court would be that interested in the case (as of now, I don't think there's a real split between circuit courts, which is often a key determining factor for the Supreme Court).
The ruling itself is on some rather specific and slightly technical aspects of copyright law vs. contract law. You can also watch the video of the one hour hearing that was held for this case earlier this year, which is also a good way to grasp some of the finer points:
Now, copyright law (again) does not cover ideas. You only get a copyright on the expression, but not the idea. However, there is a California state law that creates an implied contract in certain cases, and that's where this lawsuit hinges. The question is whether or not in presenting the idea for a TV show slightly similar to what is now Ghost Hunters, an implicit contract was formed, which meant that the SciFi Channel (now SyFy) couldn't make Ghost Hunters without working with the plaintiffs. While I have all sorts of issues with "implied" contracts in cases like this, the earlier rulings had thrown out the case based on the fact that this was really a copyright claim in disguise, and copyright law preempts the state contract laws, and then the case goes nowhere because this is really about an idea, which is uncopyrightable. Clean, simple and sensible.
Unfortunately, the majority here twists itself into contortions to claim that this is different. It claims that the specific argument is not about rights covered by copyright law, and thus it is a contractual dispute, where there is an implied contract. As the dissenting judges point out, this doesn't make much sense. The specific complaints by the plaintiffs are rights that are clearly provided under Copyright Law.
But the real issue here is that this will open the floodgates for similar lawsuits. We already see plenty, but they're usually quickly dismissed. Now there will be more such cases, where the focus will be on whether or not there's an "implied contract," when someone shows a studio a script or an idea. In the end, that's really only going to make it more difficult for people who have ideas, because studios aren't going to want to hear them for fear of future liability. If multiple people come up with similar ideas, studios shouldn't be forced to pay them all due to some bizarre implied contract...
This kind of ruling really seems to undermine the whole point of ideas not being copyrightable...
by Mike Masnick
Mon, Apr 18th 2011 8:54pm
Winkelvi Officially Ask 9th Circuit To Rehear Their Case About How $160 Million For Not Doing Much Is Not Enough
from the how-do-you-spell-greed? dept
However, despite the court and plenty of commentators telling the Winklevi to cry all the way to the bank with their money, the twins and partner Divya Narendra, have in fact filed for an en banc hearing, asking the full slate of 9th Circuit judges to rehear the case, rather than just the standard three judge panel who heard the original. To be honest, I'd be surprised if the court agreed to the rehearing, but you never know. Typically, they'll do a rehearing where there really are serious questions of law, and significant conflict in how the judges view things with the case at hand. I just don't see the specifics of this dispute rising to that level. If that fails, the only choice left will be to appeal to the Supreme Court, who we can also hope will recognize more important issues at hand and pass on hearing the case.
by Mike Masnick
Tue, Apr 12th 2011 3:54am
from the drop-it,-guys dept
by Mike Masnick
Mon, Apr 11th 2011 3:40pm
Winklevoss Twins Told To Accept The Millions Facebook Has Already Given Them And To Stop Complaining
from the this-ends-now dept
The full ruling from Kozinski is, in typical Kozinski fashion, an entertaining read. He points out that the point of the original settlement was so that everyone could "get on with their lives." Kozinski is particularly harsh on the Winklevosses for trying to back out of the agreement over a claim of valuation issues when they clearly knew what they were getting into:
The Winklevosses are sophisticated parties who were locked in a contentious struggle over ownership rights in one of the world’s fastest-growing companies. They engaged in discovery, which gave them access to a good deal of information about their opponents. They brought half-a-dozen lawyers to the mediation. Howard Winklevoss--father of Cameron and Tyler, former accounting professor at Wharton School of Business and an expert in valuation--also participated.Kozinski also knocks the Winklevi for being marketplace losers resorting to the courts to sue those who beat them in the market:
The Winklevosses are not the first parties bested by a competitor who then seek to gain through litigation what they were unable to achieve in the marketplace. And the courts might have obliged, had the Winklevosses not settled their dispute and signed a release of all claims against Facebook. With the help of a team of lawyers and a financial advisor, they made a deal that appears quite favorable in light of recent market activity.As Kozinski notes, while they've been arguing about all of this, Facebook has continued to appreciate in value, and their "settlement" is now worth much more than they even thought they would get originally. He concludes it simply:
For whatever reason, they now want to back out. Like the district court, we see no basis for allowing them to do so. At some point, litigation must come to an end. That point has now been reached.And so, they "lose." Of course, it's hard to see how getting $160 million for totally failing in the marketplace can be considered "losing."
by Mike Masnick
Thu, Mar 17th 2011 7:05pm
from the a-great-idea dept
I have lost count of the number of men and women who have approached me with their “great idea,” as if this, in and of itself, was their passport to instant wealth. The idea is not a passport. At most, it is the means of obtaining one. In some instances, a fixation on a great idea can prove hazardous, distracting your attention from the perils and pitfalls you will inevitably encounter on the narrow road.Doesn't it seem odd that so many people (and very, very successful people at that) recognize this basic concept... and yet our entire public policy around innovation focuses solely on rewarding the idea, at the expense of the execution?
If you never have a single great idea in your life, but become skilled in executing the great ideas of others, you can succeed beyond your wildest dreams. They do not have to be your ideas — execution is all. When confronted with a great idea, your reaction should be to scrupulously analyze its commercial potential in the context of your own ability to transform that potential into triumph.
Ideas don’t make you rich. The correct execution of ideas does.
by Mike Masnick
Tue, Mar 1st 2011 8:33pm
from the so-sorry dept
by Mike Masnick
Wed, Jan 12th 2011 10:13am
from the ownership-society-at-work dept
However, last month, Oprah did finally go visit Australia, and Tourism Australia was (not surprisingly) heavily involved. However, Heuvel claims that since Tourism Australia had promised to work with him, it had now breached a contract. As for the idea that perhaps (just maybe) plenty of others at Tourism Australia might have had the idea of bringing perhaps the most recognizable entertainer in the world to the country to play up tourism in Australia? Why, that's impossible, according to Heuvel:
"Tourism Australia is saying that it thought up the idea, which is ludicrous."Ludicrous? Really? Tourism Australia admits that it worked with Heuvel in 2005, and that that bid to lure Oprah down under failed. End of story. This latest trip was entirely unrelated. However, it appears that Heuvel really thinks that the idea itself is his and his alone, and that Tourism Australia owes him "millions" for actually having Oprah visit the country, without paying him first.
by Mike Masnick
Tue, Dec 21st 2010 3:14pm
from the oh-come-on dept
Given all that, we were amazed later that year when the twins sought to back out of the settlement, in what appears to be a clear case of "settlers' remorse." Joe Mullin has the latest on the twins' attempt to go through this whole thing all over again, and notes how ridiculous the whole situation is:
What makes CU's drawn-out litigation all the more remarkable is that Facebook has to be one of the most patently "unstealable" ideas out there. Facebook wasn't the first internet social network and, at the time of the suit, wasn't profoundly different than those that came before it. Facebook's success isn't due to the idea of a social network, but the skillful execution of that idea--combined, of course, with some hard work and some very lucky timing.As Mullin points out, however, these kinds of cases have increased in recent years, as the culture and legal framework we've created, that overvalues ideas and undervalues execution, leads people to think that just because they had an idea -- even if they had nothing to do with the execution -- they deserve a cut from those who did execute. While we've already posted this before, now seems like a perfect time to repost the recent recent xkcd comic on this concept:
by Mike Masnick
Thu, Dec 2nd 2010 4:17am
from the not-really-sure-that-makes-sense... dept
In a recent blog post, he not only reiterated the "ideas are worthless, execution is everything" claim but tried to take it further by suggesting (as an idea) that it might help if there was a business to bring ideas together with people to execute. Now, of course, this is just an idea and, according to Adams' own rules, it's pretty worthless. My guess is that if people tried to execute on this particular idea, they'd find that it didn't work quite the way Adams' predicts (which is sort of the point). The basic idea is that people with ideas would tape themselves in a video talking about the idea and then others who might provide related services -- such as management, capital, legal, sales, etc. -- could join up. If a "complete team" was put together via this system, then they could go execute. The concept is to remove some of the inefficiency in executing.
In my imagined future, you start by making a home video of yourself pitching your idea, just as you would to an investor. You upload your video, along with a detailed description of your idea, to a web site where other entrepreneurs around the world are doing the same thing. But instead of simply soliciting funding, you solicit an entire team, based on whatever skills your business requires. The key to making this work is that no one quits his existing job, or provides funding, until all of the resources for the idea are lined up. The main function of the system is making sure everyone's conditions for participation have been met before any risks are taken.Of course, to some extent, things like this have already been tried. There are incubators out there. There are standard legal forms. There are all sorts of entrepreneurial groups that try to bring such people together. But, for the most part, they don't seem to work all that well -- and a big part of the reason for that is the basic worthlessness of ideas. For an idea to really be executed, you don't just need the ten pieces that Adams lists out -- you need a real champion. Ask most angel investors and venture capitalists what they invest in, and it's not the idea but, quite frequently, it's the team and their overall ability to execute. Working on a startup with cofounders is, in many ways, similar to a marriage. Making sure those people can actually execute well together is a key part of it -- and this setup seems to minimize that, again focusing on the "idea" as the central focal point.
Now imagine that the legal contracts for your new business partners are based on standardized agreements that have been created by the online business to be fair to both sides. There's no wrangling about the legal details. All you need to agree on are the "fill in the blank" stuff, such as who does what, and for what equity or salary. Likewise, the funding agreements are standardized.
As the entrepreneur, you might have a hundred people vying for the job of marketing for your new company. Each person would submit a resume, perhaps some text on how they would approach this specific job, and a minimum compensation requirement. The entrepreneur might choose a marketing expert with weaker experience to keep payroll low, which might in turn cause another potential team member to back out if he thinks the marketing person is too weak for the job. This process of adding and subtracting potential team members would repeat until everyone was happy with the contribution and compensation of everyone else. And during the process, all potential team members could communicate with each other to negotiate deals and refine the idea.
In reality, however, if you're so focused on the idea, when the market changes or reality sets in, the team is less able to adjust and to change and to adapt. Adams' basic premise is correct: ideas are worthless compared to execution but the response to that is aiding with execution in a way that lets people adapt quickly over time, rather than still setting up the key "idea" as the focal point.
In the end, I tend to think Adams' idea for "monetizing" ideas is about as likely to work as the following idea from another well-known comic creator, Randall Munroe, whose recent xkcd covers the same topic from a slightly different angle: