This is hardly a surprise, but more reports are coming out revealing that the US's ongoing strategy in negotiating the TPP (Trans Pacific Partnership) agreement is to not take into account the many, many concerns about the US's hardline, maximalist position on both intellectual property issues and efforts to give corporations sovereignty over national laws under the misleadingly named (and purposely boring) "investor state dispute settlements" (ISDS). You would think that with widespread dissection and concerns expressed about the leaked intellectual property chapter, that the USTR might possibly ease up on its crazy maximalist demands. Not so -- but that's to be expected when you have Stan McCoy as the lead negotiator on intellectual property issues. McCoy is a famed extreme maximalist on IP issues who has more or less admitted to having no interest at all in hearing from public interest groups, while lapping up any opportunity to parrot bogus claims from the industry. McCoy was the same guy behind the embarassing disaster known as ACTA, which flopped so miserably. You'd think he'd take a hint, but instead it appears he's decided to dig in his heels and make sure the US continues to live up to its reputation as an obnoxious bully.

Multiple reports have called out the US (and McCoy in particular) for its aggression and "bullying" in the negotiations. Others have accused the US of engaging in a "negotiation by exhaustion," in which US negotiators seem to figure if they just stand their ground forever, everyone will eventually be bullied into agreeing to the US's positions.

‘The US has adopted a strategy of exhaustion in its bullying of negotiators on the crucial intellectual property chapter to force countries to trade away health in the Trans-Pacific Partnership Agreement negotiations in Salt Lake City’, according to Professor Jane Kelsey from the University of Auckland, New Zealand, who is monitoring the negotiations.

‘The US has stepped up its aggression as they move towards their "end point" of the TPPA ministerial meeting in Singapore from 7 to 10 December’, said Professor Kelsey.

[....] ‘This is a loaded game’, Professor Kelsey said. ‘McCoy sets the agenda and timetable. Negotiators are working from morning until late at night and preparing to work all night, if necessary.’

The second link above, from a publication in Australia, notes something similar and complains about the Australian government's seeming willingness to side with the US on these issues:

The United States has been accused of negotiation by exhaustion in last-minute talks in Salt Lake City ahead of the final ministers' meeting that will decide the makeup of the Trans Pacific trade deal between Australia and eleven other nations.

Information leaking from the closed official-level talks suggests the United States is giving no ground on questions of intellectual property and medicines and is insisting each nation sign up to so-called Investor State Dispute Settlement provisions that would allow global corporations to sue sovereign governments.

[....] “What is happening is not a negotiation,” said Patricia Ranald, Convenor of the Australian Fair Trade Network. “The United States is dictating the terms and it seems the Australian Government is not prepared to join other governments which are resisting these demands

While Stan McCoy plays out his own last stand game, pushing for policies that may help a few of his friends in the industry at the expense of the public, hopefully that last point -- about other governments resisting McCoy's attempt to bully them into a really bad deal -- stays true. An analysis of the positions on the IP Chapter, done by Gabriel Michael, highlighted how the US's position is a lot more isolated than it might like. That may explain the bullying behavior. It looks like the USTR is getting desperate, realizing its usual tricks and games aren't fooling most of the other negotiators. As Michael's analysis showed, the US and Japan (two of the strongest supporters of maximalism) appear to be fairly isolated -- issuing a lot more proposals that no one else supports.

Of course, the USTR is somewhat famous for its ability to start horse trading, promising bogus sweetheart deals if people just agree to awful language that will do massive harm to the public, so it's still something to be quite nervous about until any final text is revealed. Of course, just the fact that the USTR has still refused to reveal the text itself should be reason enough to recognize that this deal is a joke designed to screw over the public. Those acting in the interest of the public don't hide their efforts from the public.

I recently heard a story of yet another startup which had been hit by a bogus patent troll lawsuit. As always, it would be cheaper to just settle the lawsuit than to fight it in court, even though they knew that they would win. In this case, the CEO said he was going to fight it anyway because it was "the right thing to do" and to ward off future trolls. That, of course, is the worst part of troll lawsuits: the reason they work so well is that it's cheaper to "lose" and pay the troll than to "win" in court. Obviously, the SHIELD Act looks to change some of that calculus by making trolls have to pay up for bogus lawsuits. However, in general, plenty of startups can tell stories (beyond just patent trolls) in which they "settled" some sort of legal dispute, rather than did what's "right" and to win in court. Frequently, this is driven by the pressures from investors and venture capitalists, who don't want to fund lawsuits but high growth companies.

Of course, many realize that settling or foregoing a legal response in such cases can often make the situation worse, because it attracts more such activity from companies who know they can get away with it. I'm thinking of that after reading this fascinating story by famed venture capitalist, Josh Kopelman, in which he discusses why he and another investor in the startup TechForward financed a lawsuit against Best Buy. You should read the whole thing, but the short version is that Best Buy approached TechForward about using its system to create a "buyback" program. They signed some non-disclosure agreements, leading TechForward to share a bunch of confidential info about their model with Best Buy. Best Buy proceeded to take that info, and then tell TechForward "no thanks." Of course, it came out that the plan all along had been to get access to TechForward's model to build Best Buy's own. Due to the amount of resources (over a year) that went into trying to get the deal, having Best Buy pull it out from under them left TechForward in a bad position, and its assets were sold off. But the VCs kept funding the lawsuit:

Best Buy's last minute actions posed a fatal blow. Techforward sued Best Buy – but it would take a very long time before the case made it through trial. And since Techforward had invested so much money working on the Best Buy deal, the cash position of the company was not looking good. The board ultimately had to make a horrible choice – they sold Techforward's assets to a third party. BUT – they did not sell the lawsuit. Instead, First Round Capital (along with our co-investor, NEA) decided to keep funding the lawsuit. And over the last 18 months, we and NEA gave the lawyers hundreds of thousands of dollars to keep the suit going. This wasn't an easy decision. We are in the business of funding companies – not lawsuits. But my partner, Howard Morgan, was a board member of Techforward – and he sat in those board meetings. And Howard was convinced that Best Buy shouldn't get away with their behavior. We needed to send a message to Best Buy – and every other large company – that they can't blatantly violate agreements and steal ideas from startups. And if big companies believe they can violate agreements with immunity because a startup can't afford to sue them, it is bad news for every startup in the ecosystem.

The end result is that a jury sided with TechForward, awarding it a $22 million award, along with an additional $5 million in punitive damages as response to the action being willful and malicious. The details show that Best Buy employees were pretty blatant about their plan to lead TechForward along, get access to its model, and then copy it. In one email exchange between employees, they even said directly "...remove the Techforward reference in the file names..."

A couple of thoughts on this. It is incredibly rare and surprising to see VCs like Josh and Howard agree to do this kind of thing. I can't recall a single instance of VCs agreeing to fund a lawsuit like this. However, as with the CEO fighting the patent troll, there's an important signalling aspect to this decision. Letting companies know that they can't just rely on VCs not wanting to fund such a lawsuit might lead some big companies to think twice before trying to take advantage of smaller companies. Hopefully more venture capitalists will agree to do similar things.

The second interesting tidbit: this kind of lawsuit got figured out without using a patent. We always hear about how patents are "necessary" to stop big companies from just copying small companies -- but what this showed was that (1) it's not always so easy to copy without more detailed knowledge and access and (2) even if such access is granted, it can be done so conditionally (such as with an NDA, as in this case) allowing for the sharing of information, without having to use a tool like a patent or a copyright. Hopefully more investors will do similar things, recognizing not just the wider social benefit, but in scaring off other companies from either filing bogus lawsuits of their own, or just taking questionable actions towards the companies.

The latest in a long series of stupid trademark bullying lawsuits comes to us courtesy of The Village Voice (who should know better than to file bogus lawsuits). The Voice is suing Yelp for trademark infringement. The Village Voice somehow convinced the USPTO that it deserved a trademark on the phrase "best of [place name]" for certain locations -- such as "Best of Seattle" or "Best of San Francisco." Yelp, quite reasonably, also uses the term of "best of" to describe certain places: Village Voice is claiming that Yelp's infringement is "willful" because it notified the company, and Yelp apparently told them to go away. It's also ridiculously claiming that Yelp's usage has "irreparably harmed" the company. I realize that's standard language used in such lawsuits, but seriously?

The EFF points out that the US Patent and Trademark Office is partly to blame for allowing registrations on such trademarks:

What is going on at the Patent and Trademark Office?  For decades, folks have been complaining (with good reason) that the patent examiners need to do a better job of screening out bogus patent applications. It’s clear that the problem extends to the trademark side as well. The PTO has allowed companies and individuals to register marks in any number of obviously generic and/or descriptive terms, such as “urban homestead” (to refer to urban farms), “gaymer” (to refer to gay gamers), and “B-24” (to refer to model B-24 bombers).

Once a mark is registered, it is all too easy for the owner to become a trademark bully. And while companies like Yelp have the resources to fight back (as we expect it will), small companies and individuals may not. Just as dangerous, the trademark owner may go upstream, to intermediaries like Facebook who have little incentive to do anything other than take down an account or site that’s accused of infringement.

Separately, the EFF asks the most important question: who is actually being deceived here? There is no confusion. No one associates "best of" with the Village Voice. Everyone reads it as a perfectly normal descriptive term, rather than a trademark belonging to any single party.

Pickle Monger alerts us to a CNN story suggesting that a Facebook group "may have lead to the beating of a 12-year-old" boy. Really? Facebook could do that rather than a group of kids who are bullies? The "group" in question was apparently a group (potentially inspired by a South Park episode) for a national "kick a ginger" (redhead) day. There was actually some controversy about this last year as well. It seems bizarre to blame Facebook (or, for that matter, South Park) for this at all, and so Pickle Monger went and checked out the actual Facebook group and noted: "There doesn't seem to be any outrageous comments. In fact most comments are in good humor, some by readheads. The event has one confirmed guest - assumingly the creator, who seems to be readheaded (assuming it's his photo on the profile). The event has two people awaiting reply." Kids do stupid things, and sometimes the stupid things they do involve hitting other kids. That's not the fault of Facebook.

For years, there are a group of folks who regularly raise a stink about the rise of cyberbullying and how something needs to be done to "protect the children." Of course, the solutions never make very much sense. At one end, you have things like people dressing up as Spiderman and telling kids to stop bullying each other, and at the other extreme, you have people saying that there should be laws outlawing cyberbullying.

But what about relying on the same technology that enables cyberbullying to potentially be a part of the solution? The AP is running a story about a website that lets kids anonymously report bullying activities (beyond just cyberbullying) to school officials, so that they can take care of it. It's an interesting idea -- and to be honest, my first reaction on reading it was more surprise that such things hadn't existed for years. How hard is it to set up a form on a website that doesn't require logging in and identifying yourself?

However, I wonder how well it actually works in practice. Perhaps it is effective, but it's difficult to see how this actually solves the problem the article claims it solves: which is that whoever reports the bullying will be called a "snitch." In plenty of cases, I would imagine that the bully would simply blame the bullied. And, depending on the situation (i.e., depending on how scared the bully is of further retaliation), it could just get them even more riled up against their victim, naturally assuming that's who reported them. However, if it can be shown to be an effective solution to help stop bullying, then perhaps it does make sense. I certainly wouldn't condone any kind of bullying, but at some point you have to realize that there are always going to be bullies of some kind, and while any solution that can alleviate the suffering of bullied individuals sounds good, they need to be grounded in reality.