by Mike Masnick
Mon, Oct 11th 2010 4:49am
by Dennis Yang
Mon, Apr 12th 2010 11:31pm
from the pot-meet-the-kettle dept
Typosquatting seems to attract persistently slippery individuals. For example, even after typosquatter John Zuccharini served time and was fined for his typosquatting behavior in 2003, it was not long before he returned right back to his typosquatting behavior in 2007, earning him another $164k in fines.
Temme claims that Microsoft's $500,000 settlement offer is "in effect trying to do is put a small company of eight employees out of business." While the David & Goliath angle might play well, digging a little more deeply into the story casts a different light. Considering that Temme has registered around 1,000 domains that could be considered typosquatting, it's clear that he has made a habit of this deceptive practice. Furthermore, Temme has already lost $130,000 to Dell in a similar lawsuit. So, while Temme claims that he would happily turn over the domains in question, to do so would merely make typosquatting even more profitable than it already seems to be. Likening mistyped domains to prime real estate, Temme equates the practice to buying "some property next to Disneyland."
Though this case may have some slight similarities to the pre-settlement groups that have been set up to deal with copyright infringement, the difference is clear: in this case, unlike the copyright "criminals," not only is Temme in clear violation of typosquatting laws, he has made it an integral part of his business practice to do so. So, whereas the pre-settlement groups use a shotgun approach in an extortion-like shakedown, Microsoft's offer is specific to the Temme case only. Settling potential lawsuits, by themselves, is not a form of extortion. It's just when the potential viability of the actual lawsuits are suspect that questions of extortion-like actions begin.
That said, Temme must be selling a good number of $14,000 exercise machines if he considers these fines to be just a part of his cost of doing business.
by Mike Masnick
Fri, Mar 26th 2010 4:09pm
from the objecting-to-settlements dept
Eric Goldman points us to an interesting profile of Ted Frank, a lawyer who is focusing on trying to stop such bad class action lawsuits and settlements by objecting to the settlements when they seem so far over the line. While, as the article notes, there have been a bunch of "professional settlment objectors" in the past, most have been doing it for money (getting some of the attorney's fees). Frank, however, hasn't taken attorney fees (though he says it's a possibility in the future), and is funded by a charity:
"The whole reason I started this is because there is a high probability of district courts rubber-stamping settlements," Frank says. "I think these are very bad settlements that the [9th U.S. Circuit Court of Appeals] will ... provide guidance for when judges should or shouldn't approve settlements."Again, the concept of a class action lawsuit isn't bad, but it's definitely been widely abused -- so it's nice to see someone pushing back from within to try to stop the worst abuses.
by Mike Masnick
Fri, Jun 19th 2009 2:03pm
from the some-kind-of-victory dept
"I am still unsettled that the record companies are able to treat upstanding American citizens in this way. Invading people’s privacy and accusing people of things that don’t even make sense. It is such a sad waste of the courts time."While it's great that she was able to get out of it without having to pay off the labels, nothing about this result provides any incentive for the labels to make sure they have actual evidence before filing future lawsuits.
by Mike Masnick
Wed, Feb 11th 2009 2:00pm
from the a-bad-deal-for-everyone dept
It appears that as the details have come out, more and more people are troubled by what the settlement actually will mean in the long run. Robert Darnton, the head of the Harvard library system (which had already complained about the settlement) has written a thoughtful piece, detailing his worries about how this creates an effective monopoly, and the many, many downsides that this causes.
Prior to this settlement, we had been one of the bigger defenders of Google's book scanning program against those who worried that it was creating a de facto monopoly. That's because there were no exclusive agreements. However, with the new settlement, while again others could enter in theory, Google has effectively priced the rest of the market out. Prior to this, there was a reasonable argument to be made that anyone could scan books and create an index, so long as they weren't displaying too much of the books. Now... Google has set a market price of $115 million, plus a set-in-stone business model, as the entry price. It's pocket change to Google, but it's a big barrier to others.
This is definitely raising concerns from a variety of other sources, who were at least cautiously optimistic when the deal was announced. The EFF now points us to James Grimmelmann's worries about the deal (pdf). While Grimmelmann does support the deal and say it will be net positive for society, he then goes through a pretty detailed list of problems with the deal, almost all of which go back to the idea that this deal gives Google effective monopoly power over digitized books.
Finally, as for my initial fear that this would signal something of an "open season" on Google, with demanding money from Google for Google daring to provide the service of helping others find their works, we're already seeing some of that in the early stages. Some in the newspaper business are using the book settlement as a template for how Google should pay them too.
In the long run, I think Google is going to regret this deal. Yes, in the short term it handed Google a monopoly and removed a distracting lawsuit from the table. But, it did some very dangerous things that will harm Google in the long term. It signalled Google's willingness to pay up even when it shouldn't have to. It set in stone a business model way before anyone knows what the best business model is for online books. And, finally, in knocking all competitors out of the market, Google has taken away its own best incentive to continue innovating and serving customers at the best of their ability in the book search realm. The end result may be a worse product that isn't nearly as useful (and revenue generating for Google) as it would have been if it had real competition in the market.
by Mike Masnick
Tue, Nov 18th 2008 12:11pm
from the trying-to-force-a-settlement dept
The first case involves a patent lawsuit concerning Microsoft's Visual Studio. WebXchange claims it has patents that Visual Studio violates -- but rather than suing Microsoft, WebXchange sued three Microsoft customers, claiming that by using the software, they were violating the patent. This is clearly an attempt to scare Microsoft into settling, out of a fear that other customers won't use Visual Studio to avoid getting sued by WebXchange. Microsoft is fighting back, asking a judge to declare the patents invalid, but in the meantime, WebXchange has been able to drag Microsoft's customers into a patent battle, putting extra pressure on Microsoft to settle.
The second case involves Spansion suing Samsung for patent infringement concerning Samsung's memory chips. In this case, Spansion isn't just going after Samsung, but demanding an injunction that would block US sales of a variety of popular gadgets that use Samsung's memory chips -- including iPods and Blackberries. Once again, while it's unlikely that a court would order such a block, by dragging other companies such as Apple and RIM into the mess, Spansion is abusing the patent system's threat of an injunction to put extra pressure on Samsung to settle.
by Mike Masnick
Tue, Oct 28th 2008 1:13pm
from the unfortunate-reality dept
Two years ago, there was a story in the NY Times about how Google's legal department saw all of these lawsuits against the company as a way to stand up on principle and make better law. Specifically, the company positioned itself as being willing to fight certain lawsuits on principle in order to get precedent setting rulings on the books in support of openness, fair use, safe harbors and many other important issues. The company suggested that, rather than settle, it would fight these lawsuits knowing that it alone, with its big war chest of money, could fight some of these battles that tiny startups could never afford.
It may not be surprising, but it's safe to say those days are long gone. We've been seeing it time and time again, from Google's decision to pay off entertainment companies not to sue YouTube to the decision to pay off the Associated Press for including its headlines in Google News. Perhaps one of the biggest legal battles, however, was over Google's book scanning project. Google took it upon itself to scan numerous books and make the results searchable online. The company put significant restrictions in place, such that it's almost impossible for someone to do a search and read the entire book that way. You can only see a few consecutive pages. You can't print. However, you can search and find new and interesting books that you might want to buy. I know I've bought dozens of books this way.
Not surprisingly, authors and publishers sued Google over this, and went around claiming how awful it was -- even though it was really not all that different than creating a much better card catalog for books. The purpose was to help people find more books that were useful, rather than to break any sort of copyright. And, in fact, studies showed that books that showed up in Google's search improved sales. In other words, it should have been a win-win situation all around. But, like so many content providers, authors and publishers falsely overvalue the content and undervalue services that make that content more valuable.
However, more important that was the simple principle of the whole thing. Last year the New Yorker ran a fantastic article explaining how having authors and publishers quibble over copyright issues while preventing the widespread archiving and sharing of information may turn out to be one of the most ridiculous arguments ever, while our culture get locked up and fades away.
So, it's quite upsetting to see Google cave on this. The settlement does not establish any sort of precedent on the legality of creating such an index of books, and, if anything pushes things in the other direction, saying that authors and publishers now have the right to determine what innovations there can be when it comes to archiving and indexing works of content. Unfortunately, this was really inevitable. As was the case with Google caving on YouTube and the Associated Press, it becomes a situation where Google realizes it can throw a little cash at the problem to make it go away -- while also creating a large barrier to entry for any more innovative startup. From a short-term business perspective this might make sense, but from a long-term business perspective (and wider cultural perspective) it's terrible.
It will only encourage more lawsuits against Google for trying to innovate, as more and more people hope that Google will settle and throw some cash their way. Furthermore, it greatly diminishes the incentives for making books more useful, and that's damaging to our cultural heritage. While it was always silly to believe that Google ever really operated on a higher principled stance, rather than a short-term business focus, this settlement is tremendously disappointing.
by Mike Masnick
Wed, Aug 27th 2008 7:35pm
from the patent-dealing dept
In this case, Immersion had sued both Sony and Microsoft for violating its patents, and it offered them a deal that's becoming all too typical: giving competitors a chance to settle first in order to join the other side of the case. It's a neat trick. Basically, you tell both sides that they can just pay up, and close out the case, while also getting the chance to claim some of that money back if Immersion wins against their competitor. Of course, Immersion took it to another level after Microsoft agreed to this deal, originally handing over to Immersion $26 million. After it got Sony to pay $130 million, it told Microsoft that the deal wasn't technically a "settlement," and thus it was excluded from the terms of the deal it gave Microsoft. Hence the lawsuit from Microsoft.
This latest settlement has Immersion apparently realizing it was never going to win the case, and forking over $20.75 million back to Microsoft, ostensibly from its winnings against Sony. It makes you wonder what's up that Immersion seems to be rushing to settle its various cases. Either way, it shows another aspect of how the patent abuse game is played these days, with patent holders pitting competitors against each other to pressure companies into settling.
by Mike Masnick
Wed, Jan 2nd 2008 4:14am
from the sue-and-settle! dept
The Nortel case is slightly different because Vonage actually already had a patent infringement lawsuit going against Nortel, but it wasn't really initiated by Vonage. Instead, it had been initiated by a patent holding firm that Vonage bought in 2006. The end result of the settlement doesn't involve money changing hands, but just a cross licensing agreement for the patents. So what's the big lesson that Vonage and others have learned from this? It's certainly got nothing to do with innovating. It's to hoard as many patents as possible so that you have your own nuclear stockpile for when someone else sues you. Want to know why the USPTO is overwhelmed? It's not because there aren't enough examiners (as some will claim) or that there aren't enough funds. It's because the way the system now works is that you are supposed to file patents on every tiny little advancement so you can use it to protect yourself against lawsuits from everyone else. That's not about innovation. It's about waste. In the meantime, since it's still open season at Vonage, who's going to be next? There are a ton of other patents in the VoIP space that can surely be used in a lawsuit, right?
by Mike Masnick
Thu, Nov 15th 2007 1:36pm