How would people feel if they found out that their ISP wouldn’t let them send emails about a subject they didn’t like? I’m sure most people would cry foul. Yet, what about with SMS text messaging? Apparently T-Mobile blocked a company, EZ Texting, from sending text messages for a client that were about legal medical marijuan dispensaries in California, and now there’s a legal dispute over the issue. Of course, this isn’t quite as cut and dried as either side would like it to be. Unlike email, the SMS system really isn’t using the public internet, but the private networks of carriers, who have worked out deals with each other to exchange SMS messages across network barriers. So you can make an argument that they can do whatever they want. Of course, they’re also using spectrum from the government, which comes with certain restrictions about how it can be used. Either way, perhaps the bigger question is why T-Mobile should even want to block some messages that people want? All it’s going to do is drive away customers…
Eric Goldman points us to the news that Google has been sued, in a class action lawsuit, over problems with the Nexus One, the Android phone (made by HTC) that Google released directly, in an attempt to get others to release better Android-powered phones. As with many new products, there were some bugs, and Google (and T-Mobile, on which the Nexus One worked) didn’t quite know how to handle customer support for the device — a pretty massive mistake. However, is it really against the law to sell a product with a few bugs and to to have really dismally crappy customer service? It seems like a stretch. You can make the argument that the product didn’t do what was promised, but, like so many class action lawsuits, this one seems like a case of “gee, can we squeeze a bunch of money out of this company?”
With the news that a lawsuit has been filed against T-Mobile for advertising “unlimited” smartphone data service that’s really limited to 10GB, it raises an important question: how come we don’t see more lawsuits like this? For years we’ve pointed out that all these services marketing offerings as “unlimited” when they’re really limited certainly must be violating truth in advertising laws — but for some reason, you almost never hear of any actual lawsuits against these companies. Now, it’s probably difficult to show that the difference caused much harm, but you would think that, at the very least, the FTC would step in at some point to point out that calling a limited service “unlimited,” is not allowed.
Regular Techdirt commenter Max Davis (who I believe may be involved in this lawsuit) passed along the news that all the big US mobile operators have been sued — including AT&T, Verizon Wireless, Sprint and T-Mobile — under the claim that their MMS platforms are really illegal file sharing networks, and that these operators are no different than Limewire or Gnuttella. Yes, seriously — the email Max sent repeatedly refers to MMS and Limewire as if they were the same. Here’s the complaint:
Honestly, the whole lawsuit seems ridiculous. Here’s the crux of it:
Defendants, and each of them, enabled the transfer/transmission and publication of this copyright protected content via mobile devices by building and implementing a peer to peer file sharing network with the dedicated purpose of enabling end users to share multimedia files via this MMS network. Defendants, and each of them, profited from these activities by charging the transmitter and receivers of this content a fee or flat rate for the transfer/transmission that resulted in the publication of said content. Despite charging the transmitter and receiver a fee for the delivery of this copyrighted content, Defendants, and each of them, failed to compensate the holder of the copyrights for this content that was necessary in generating the MMS data revenue. Furthermore, Defendants, and each of them failed or refused to provide a system where an adequate accounting of the transfer/transmission and publication of this copyrighted content could be made.
Basically, this company, Luvdarts, made MMS content, and it got distributed via MMS. Since recipients of MMS can forward the MMS data they receive, such content got forwarded around. Since the mobile operators receive revenue for MMS data, Luvdarts is effectively claiming that they are profiting off the infringement of Luvdarts content. This makes no sense. It’s like saying that any email provider is infringing on the copyrights of email writers by letting recipients forward emails. You know those chain emails that get passed around? Imagine if one of the authors of those then sued all the big email providers. It would get laughed out of court. Hopefully, this lawsuit gets laughed out of court too.
The one oddity is that the lawsuit claims that the mobile operators do not qualify for DMCA safe harbor protections, because they’re “not service providers” as defined in the DMCA. Specifically:
The transmission of this MMS data is not covered by the exemption for Internet Service Providers as set forth in 17 U.S.C. §512 because the wireless carriers are not Internet Service Providers as defined by §512 while providing a dedicated MMS network for multimedia file sharing.
Really? If you haven’t read your §512 lately, why not go take a look and explain how a mobile operator offering MMS is not covered. It certainly seems covered by the definition:
Definitions.–
(1) Service provider–
(A) As used in subsection (a), the term “service provider” means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.
(B) As used in this section, other than subsection (a), the term “service provider” means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A).
Help me out. Where are mobile operators offering MMS features excluded? Looks like yet another frivolous lawsuit. But, of course, Luvdarts is demanding the statutory maximum of $150,000 per infringement, and claims “9,999 to 100,000 counts of
infringement” (broad enough range there?). Good luck, Max.
Every time we mention CSIRO, the Australian government-owned research group that claims to hold a patent on the basic concept behind WiFi, we get angry comments from people at CSIRO who claim that we’ve got it all wrong, and that even if they agree with us in general on patents, CSIRO’s WiFi patent and the hundreds of millions of dollars it sucks from companies doing actual innovation, is perfectly reasonable. Uh huh. Of course, we still have problems with the idea that any government organization ought to be patenting anything. However, following the decision by a bunch of tech companies sued by CSIRO to pay $250 million to settle the giant patent lawsuit, CSIRO is coming back for more.
JohnForDummies was the first of a few of you to alert us to CSIRO’s latest set of lawsuits against American tech companies, this time focusing on ISPs. Verizon Wireless, AT&T and T-Mobile have all been sued, even though none actually make WiFi equipment. However, since they all have WiFi-enabled devices (some of which were almost certainly made by the tech companies who already paid up) CSIRO claims they need to pay up again. Apparently patent exhaustion is not a concept CSIRO considers valid.
Oddly, the article in The Age about this lawsuit seems to side almost entirely with CSIRO, quoting people who insist that companies have “no choice but to pay up” and that CSIRO has the right to demand licenses from the “entire industry.” It also quotes someone who falsely claims that the only reason companies would agree to settle is if they knew they were going to lose. That’s not even close to true. Lots of companies settle patent disputes because it’s often cheaper to do so. And, even if they think they can win, oftentimes their shareholders don’t like the uncertainty and push for a faster settlement.
The Age article also provides some more background on the patents in question, highlighting that they’re based on mathematical equations created in a 1977 paper. As JohnForDummies points out, mathematical equations are not supposed to be patentable…
There’s just something about mobile operators that they love to make claims that are just sorta kinda true, while not really being true in spirit. This is the industry, of course, that has perfected “up to” marketing. As in “you should get speeds ‘up to’ xMbps” which, is technically true since any speed below that is covered, even if you’ll never get a speed anywhere near the defined “x.”
The other popular tactic is to lie about what kind of wireless network you’re actually offering. There were the claims that any wireless broadband solution was “WiMAX” back before the WiMAX standard was even set. So you started to get companies calling their solution “WiMAX” and then including all sorts of fine print about how it was “pre-WiMAX” and would certainly be upgraded to WiMAX once WiMAX actually existed.
Similarly, nearly a decade ago, when all the talk was about the upcoming “3G” networks, the mobile carriers all started pushing claims that they were offering “3G” when they absolutely were not. There were some interim “2.5G” steps, and some aggressive marketers just decided to round up. And, it looks like they’re doing that again. T-Mobile is going around claiming its HSPA+ network offers “4G speeds,” which, of course, is not to be confused with actual 4G. And, of course, this is an “up to” situation, where the network could, theoretically, sorta, kinda touch on “4G speeds,” but probably won’t for most people.
Lots of broadband operators around the world have been talking about how their networks can’t keep up with traffic demands, so they’ll have to shift back to usage-based pricing. In particular, US mobile operators AT&T and Verizon have led the rhetoric, even as they continue to launch the unlimited plans they say are such a problem. The head of one broadband provider in the UK recently said a switch to usage-based pricing, and away from flat-rate plans, was inevitable as soon as one operator in a market made the switch. He dismissed the idea that operators would seek to differentiate by sticking with flat-rate plans, or by taking any other pricing strategy than usage-based plans, ignoring the fact that consumers have grown accustomed to flat-rate offerings, and that the lack of clarity in usage, billing and pricing that per-unit plans are a big turnoff for them. Already, we’re seeing some signs that the operator landscape may not be dominated by such groupthink, as T-Mobile and Leap Wireless have made changes to their mobile broadband plans that are out of step with many other operators. The two companies have changed the way the caps on some of their plans work: for instance, on T-Mobile, when a user reaches their 5GB monthly cap, they don’t get hit with overage fees, the speed of their connection gets throttled, avoiding the uncertainty inherent in usage-based pricing. Perhaps it’s not a perfect situation, but it does show that some operators aren’t afraid to step out from the party line and explore different pricing models. It also builds some hope that when some providers do decide to regress to usage-based schemes, there will be some choices for consumers.
I’m still in the camp of folks who doesn’t quite understand “ringback tones” — the ugly stepchild of ringtones, where it’s not what music your phone plays, but what music a caller hears when they call you and are waiting for you to pick up. While ringbacks have been a big deal in Asia, they’re still a relatively small market in the US. But, that’s not going to stop collections societies from demanding cash, of course. mike allen alerts us to the news that BMI has sued T-Mobile over its ringback tones. Of course, here’s the thing: a court has already established that ringtones are not performances, so are ringback tones performances? Or, of course, T-Mobile could just ban the use of any BMI songs as ringbacks, and then see how those artists feel about how BMI is “protecting” their interests…
The Skype app for the iPhone proved to be an instant hit, topping App Store download charts around the world, including Germany, where T-Mobile reminded its customers that using Skype, or any other VoIP app, could get them kicked off its network. The operator now says it’s “looking at different ways of dealing with VoIP”, perhaps including offering some special plan where users would have to pay some fee to use VoIP. It also says it’s not actively blocking any voice apps, although when it begins selling the Nokia N97 smartphone later this year, the Skype application that’s normally pre-installed on the device will be stripped out. T-Mobile’s justification for removing the app is great: it’s not because they don’t want people undermining voice revenues by using Skype, but because “by not putting Skype on, subscribers could choose from a number of VoIP apps, and not be limited to just one.” That’s as opposed to having Skype pre-installed, and customers being able to download and install any other VoIP app alongside it. Only in the world of mobile operators does removing choices for customers actually increase customer choice.
It’s getting rather ridiculous to keep seeing companies offer “unlimited” services, only to later find out that they’re not unlimited at all. Yakko Warner points out that this just happened to one guy in Pennsylvania, who along with a friend, tried to beat the world record for most text messages in a month (182,000) by messaging each other back and forth. They figured they were fine, because they each had unlimited text messaging plans, but after one of them sent 140,000 messages, he received a bill for $26,000 and learned that, for T-Mobile, “unlimited” actually means 100,000, and those additional 40,000 messages cost quite a pretty penny. To T-Mobile’s credit, the company has agreed to let the charge slide, but it makes you wonder why it has that cap in the first place if it’s advertising the service as unlimited (and then ignoring the cap when people pass it). Why not actually remove the limit?
