Let me preface this by saying I generally agree with almost everything you write here about patents. I can honestly say I became a patent attorney based largely on Techdirt's coverage of patent trolling over the years which pissed me off enough to want to go fight it (I've since pivoted and now work as a software developer).
With that said, I believe your market comparison/analysis between what Musk did and what you think Google should do is off. Tesla's market for electric vehicles is B2C (with some B2B). Google's market for self-driving cars is exclusively B2B and will remain so for the foreseeable future due to regulatory barriers. That is not a subtle difference, especially considering the number of Bs in the market for self-driving car fleets is relatively tiny. This means Google has orders of magnitude fewer potential customers to market to compared to Tesla. So while both markets are still young and growing, the sales cycle and prospects are very different.
In other words, the cost of losing a customer to the competition in the self-driving car market is much much larger than the cost of losing a customer in the electric vehicle market (fleets vs. individual, commercial vs. consumer, long-sales-cycle vs. short-sales-cycle).
To be clear, I'm not suggesting anything here regarding the merits or prudence of Google's legal action. I'm just pointing out the fact that it's not a fair comparison to say that Google should follow Tesla's lead on IP because they play in similar markets.
If Net Neutrality advocates don't get to point to "speculative harms" in defending the rules (according to Comcast, Verizon et al), then Comcast doesn't get to point to speculative competition to defend this merger.
As a related aside, I'd like to see the FCC use its newly affirmed 706 powers to preempt state laws restricting municipal broadband. This would spark more public broadband providers to launch which in turn would provide the kind of real competition that could undermine the private broadband cartel's efforts to destroy net neutrality.
I'd prefer to see the state laws preempted, either directly by Congress or by the FCC pursuant to its powers under Section 706 to accelerate deployment of advanced telecommunications capacity. I'm just a third year law student, but I'm not aware of the FTC, antitrust law, tort law or consumer protection law having any powers to cut through state laws bent on corporate protectionism. The FCC would have a tough go of it to be sure, but it does have preemption powers that could be invoked in this case (especially under City of Arlington).
"competition advocacy ? like trying to remove anticompetitive local government obstacles to broadband deployment."
You must be talking about the nineteen state laws restricting municipal broadband, enacted at the behest of cable and telecom incumbents. Because those are truly the most anticompetitive obstacles to broadband deployment. Yes, I agree, let's remove them!
Attorney Registration and Disciplinary Commission for the Supreme Court of Illinois (assuming that is where Obenberger is registered)
http://www.iardc.org/htr_filingarequest.html
Maybe a concerted effort to submit disciplinary complaints against attorneys who knowingly abuse the DMCA, for censorship or otherwise, might get somebody's attention.
I smell a business opportunity. Imagine if EFF, Public Knowledge, CDT, ACLU, Calyx Institute and other similar organizations banded together to offer an encrypted communications platform. They could offer it ad-free for a low monthly fee. And they shouldn't lose their non-profit privileges because this would clearly be aligned with their charitable missions. What are they waiting for?
I'm waiting for the headline "Senator Wyden Charged With Espionage." I mean, he has essentially informed the public about government wrongdoing, just like Manning and Snowden. I wouldn't be surprised if he shows up in solitary or Venezuela tomorrow.
Or maybe you should decouple your emotional reaction to his obnoxious behavior on the panel from YOUR reading of the article. Because all the article talks about is (1) that he has a friend who is a patent troll, and (2) that friend helps PubPat file patent marking cases. "Playing both sides of the patent troll fence" implies affirmative support for patent troll interests in some way. You are confusing Ravicher with his friend, the one who is ACTUALLY playing "both sides of the patent troll fence" by trolling AND supporting a public interest patent organization.
I'm curious how you came to the conclusion Ravicher "plays both sides of the patent troll fence." Nothing in the linked article, nor the one it links to, supports that conclusion.
I thought about this post when reading Graham v. Deere for my patent law class. Specifically, this passage made me think of your general argument that patent law should not shy away from standards just because they are difficult to apply:
"What is obvious is not a question upon which there is likely to be uniformity of thought in every given factual context. The difficulties, however, are comparable to those encountered daily by the courts in such frames of reference as negligence and scienter, and should be amenable to a case-by-case development."
Smells like a class action suit waiting to happen. If the allegations are true, I imagine the studios would settle before discovery spreads their books wide open.
"you can't act surprised or shocked that the government wants to..."
The days of being surprised by anything our government does are over. The bottom line here, and something I hope Mr. Kozinski comes to realize, is that only an individual's actions determine his or her reasonable expectations of privacy. This should be a no-brainer.
Techdirt has not posted any stories submitted by dmc.
Not so fast
Let me preface this by saying I generally agree with almost everything you write here about patents. I can honestly say I became a patent attorney based largely on Techdirt's coverage of patent trolling over the years which pissed me off enough to want to go fight it (I've since pivoted and now work as a software developer).
With that said, I believe your market comparison/analysis between what Musk did and what you think Google should do is off. Tesla's market for electric vehicles is B2C (with some B2B). Google's market for self-driving cars is exclusively B2B and will remain so for the foreseeable future due to regulatory barriers. That is not a subtle difference, especially considering the number of Bs in the market for self-driving car fleets is relatively tiny. This means Google has orders of magnitude fewer potential customers to market to compared to Tesla. So while both markets are still young and growing, the sales cycle and prospects are very different.
In other words, the cost of losing a customer to the competition in the self-driving car market is much much larger than the cost of losing a customer in the electric vehicle market (fleets vs. individual, commercial vs. consumer, long-sales-cycle vs. short-sales-cycle).
To be clear, I'm not suggesting anything here regarding the merits or prudence of Google's legal action. I'm just pointing out the fact that it's not a fair comparison to say that Google should follow Tesla's lead on IP because they play in similar markets.
If Net Neutrality advocates don't get to point to "speculative harms" in defending the rules (according to Comcast, Verizon et al), then Comcast doesn't get to point to speculative competition to defend this merger.
As a related aside, I'd like to see the FCC use its newly affirmed 706 powers to preempt state laws restricting municipal broadband. This would spark more public broadband providers to launch which in turn would provide the kind of real competition that could undermine the private broadband cartel's efforts to destroy net neutrality.
Nominative Trademark Fair Use
Just learned about this in Trademark class yesterday...
http://en.wikipedia.org/wiki/Nominative_use
Wasn't the cable industry created entirely on the basis of running really long cables to pipe in content it didn't pay for?
I'd prefer to see the state laws preempted, either directly by Congress or by the FCC pursuant to its powers under Section 706 to accelerate deployment of advanced telecommunications capacity. I'm just a third year law student, but I'm not aware of the FTC, antitrust law, tort law or consumer protection law having any powers to cut through state laws bent on corporate protectionism. The FCC would have a tough go of it to be sure, but it does have preemption powers that could be invoked in this case (especially under City of Arlington).
"competition advocacy ? like trying to remove anticompetitive local government obstacles to broadband deployment."
You must be talking about the nineteen state laws restricting municipal broadband, enacted at the behest of cable and telecom incumbents. Because those are truly the most anticompetitive obstacles to broadband deployment. Yes, I agree, let's remove them!
I'm too busy, but here...
Attorney Registration and Disciplinary Commission for the Supreme Court of Illinois (assuming that is where Obenberger is registered)
http://www.iardc.org/htr_filingarequest.html
Maybe a concerted effort to submit disciplinary complaints against attorneys who knowingly abuse the DMCA, for censorship or otherwise, might get somebody's attention.
Appeal
I hope this gets appealed to the top. I'd like to see the SCOTUS take a crack at this (or have the Circuit reverse).
I smell a business opportunity. Imagine if EFF, Public Knowledge, CDT, ACLU, Calyx Institute and other similar organizations banded together to offer an encrypted communications platform. They could offer it ad-free for a low monthly fee. And they shouldn't lose their non-profit privileges because this would clearly be aligned with their charitable missions. What are they waiting for?
Traitor
I'm waiting for the headline "Senator Wyden Charged With Espionage." I mean, he has essentially informed the public about government wrongdoing, just like Manning and Snowden. I wouldn't be surprised if he shows up in solitary or Venezuela tomorrow.
Re: Re:
Or maybe you should decouple your emotional reaction to his obnoxious behavior on the panel from YOUR reading of the article. Because all the article talks about is (1) that he has a friend who is a patent troll, and (2) that friend helps PubPat file patent marking cases. "Playing both sides of the patent troll fence" implies affirmative support for patent troll interests in some way. You are confusing Ravicher with his friend, the one who is ACTUALLY playing "both sides of the patent troll fence" by trolling AND supporting a public interest patent organization.
I'm curious how you came to the conclusion Ravicher "plays both sides of the patent troll fence." Nothing in the linked article, nor the one it links to, supports that conclusion.
Graham v. John Deere
I thought about this post when reading Graham v. Deere for my patent law class. Specifically, this passage made me think of your general argument that patent law should not shy away from standards just because they are difficult to apply:
"What is obvious is not a question upon which there is likely to be uniformity of thought in every given factual context. The difficulties, however, are comparable to those encountered daily by the courts in such frames of reference as negligence and scienter, and should be amenable to a case-by-case development."
Class Action
Smells like a class action suit waiting to happen. If the allegations are true, I imagine the studios would settle before discovery spreads their books wide open.
Crowdfund a Privacy-focused ISP
This seems like a good place to drop a link to a crowdfunded privacy-focused ISP...
http://www.indiegogo.com/calyx?c=home&a=70238
Re: Re: Re:
"you can't act surprised or shocked that the government wants to..."
The days of being surprised by anything our government does are over. The bottom line here, and something I hope Mr. Kozinski comes to realize, is that only an individual's actions determine his or her reasonable expectations of privacy. This should be a no-brainer.