Kenneth Michaels 's Techdirt Comments

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  • On the post: Megaupload Filings Show Massive Flaws In US Case, Ask Court To Dismiss

    Kenneth Michaels ( profile ), 31 May, 2012 @ 09:03am

    The Lawyers in this case

    The lawyers in this case do deserve credit. These are top-notch lawyers representing Megaupload. They have have other clients lining up to pay them in other matters, yet they risk never getting paid by representing Megaupload.

    But that is actually not the most surprising thing. Their firm also represents major content owners (i.e., Hollywood). Although not a legal conflict (as the Government argues), the firm risks loosing many clients because Hollywood is angry and vindictive. Look at the lobbying firms that represented the tech industry against SOPA - those lobbying firms were abandoned by their Hollywood clients. Hollywood is at war, and you are either with them or against them. Hollywood will not hesitate to pull their work from the firm representing Megaupload and send it to another firm. I'm sure not all the attorneys at that firm are happy about this decision to represent Megaupload, it means that some of those attorneys will be loosing their clients.

    We already know from the court filings in this case that any firm that dared to represent Megaupload got a call from the government and/or Hollywood "reminding" them that they also represented Hollywood. Some firms caved and withdrew from representation because they understood the warning - Hollywood would find other attorneys.

    It all goes to the Government's overall strategy: prevent Megaupload et al. from adequately representing themselves; cut off money, pressure the lawyers, eliminate exculpatory evidence.

  • On the post: Megaupload Filings Show Massive Flaws In US Case, Ask Court To Dismiss

    Kenneth Michaels ( profile ), 31 May, 2012 @ 08:43am

    Criminal jurisdiction and Megaupload civil suits

    If Megaupload sues the Government in a civil case (assuming they can), then the funny thing is that even such a suit would not subject Megaupload to criminal liability in the US since they still would not have an agent or an office in the US.

    To demonstrate this, at the time the US brought down Megaupload, Megaupload had a civil suit pending against Universal (for the Megaupload song). But appearing in that civil suit in the US was not enough to bring Megaupload into the US jurisdiction in the criminal sense.

    If Megaupload wins for lack of jurisdiction, this case will be used as an "example" as to why we need SOPA and PIPA to stop foreign "rogue" sites. One response may be to reduce the service/notice requirement in the criminal context to be the same as the civil context. But forget that, we need the SOPA and PIPA firewall to break the internet!!

  • On the post: Megaupload Filings Show Massive Flaws In US Case, Ask Court To Dismiss

    Kenneth Michaels ( profile ), 31 May, 2012 @ 08:31am

    Substantial non-infringing use as a defense in criminal case

    The article says: "The filing also points out that Megaupload has substantial non-infringing uses, effectively using the Betamax ruling as a defense. I'm not sure this actually applies in the criminal context, but does raise some reasonable questions about whether or not you could even make a legitimate civil case against Megaupload."

    My take is that if secondary liability applies in the criminal context (the government's argument), then defenses to secondary liability would also apply. Substantial non-infringing use is a defense to secondary liability. The filing, for most of it, assumed that the government's arguments were legally and factually correct, for the sake of argument, showing that even then Megaupload should have some of its assets returned.

    So, yes, those defenses may not apply in the criminal context, but then secondary liability would also not apply.

  • On the post: Another Error By US Officials May Kill Megaupload Prosecution

    Kenneth Michaels ( profile ), 21 Apr, 2012 @ 12:52pm

    Re: Criminal Conspiracy - maybe not.

    Never mind. I just read that you can have intra-corporate conspirators in a racketeering case, which is alleged in the indictment.

  • On the post: Another Error By US Officials May Kill Megaupload Prosecution

    Kenneth Michaels ( profile ), 21 Apr, 2012 @ 11:56am

    Criminal Conspiracy - maybe not.

    I just read that: "an individual cannot conspire with the corporation for which he works or with another officer, employee or agent of his corporate employer." Page 68 of "Jury Instructions in Criminal Antitrust Cases 1976-1980." I don't know if this is still the law, or ever was for a case like Megaupload. But, the US is relying on the "conspiracy" charge to get the 5 years for extradition, so if it is the law, the US would seem to have an uphill battle.

    The US will argue that the Megaupload corporation was a shell to further the conspiracy, not a real corporate entity. Megaupload with argue otherwise, which may explain why we are seeing facts about their corporate existence (number of employees, IPO planned, etc.).

  • On the post: Another Error By US Officials May Kill Megaupload Prosecution

    Kenneth Michaels ( profile ), 21 Apr, 2012 @ 10:55am

    Re: Re:

    Also, the Megaupload corporation probably had to be named in the US criminal indictment so that its assets could be seized in NZ by the NZ authorities. But because the corporation will not be served, the charges must eventually be dismissed against the corporation and the corporation will no longer be part of the case (even though the individuals will still be part of the case). Then NZ will have to return the assets of the corporation to the corporation. Also, the NZ officials will look pretty stupid as they will have been tricked by the US government into seizing the assets of a corporation based on a criminal indictment that the US knew could not stand.

    Also, I think I'm wrong when I said above that "these facts were probably already briefed and submitted to the court."

  • On the post: Another Error By US Officials May Kill Megaupload Prosecution

    Kenneth Michaels ( profile ), 20 Apr, 2012 @ 04:30pm

    Re:

    I believe that the 5 year threshold is needed in the country being extradited *to*, not the country being extradited *from*. So, it does not matter what the prison term is in NZ, the author just threw that in for comparison. (But I may be wrong.)

  • On the post: Another Error By US Officials May Kill Megaupload Prosecution

    Kenneth Michaels ( profile ), 20 Apr, 2012 @ 04:19pm

    Re:

    I believe the government may argue that the seven individuals (the conspiracy) actually owned and ran everything and that the corporation was just a shell to hide and facilitate their criminal conspiracy. Thus, you can just ignore the corporation, it didn't count anyway.

    Notice the information that has "leaked" in the past few days. Megaupload was planning an IPO. Megaupload employed 220 people. Megaupload had multiple divisions, including a clothing division. These facts support the argument that Megauplaod was an actual bone fide corporation and not just the shell of a conspiracy. These facts were probably already briefed and submitted to the court.

  • On the post: Another Error By US Officials May Kill Megaupload Prosecution

    Kenneth Michaels ( profile ), 20 Apr, 2012 @ 02:19pm

    Serving

    There are some pieces to the puzzle missing from the news reports. From what I've read, Megaupload corporation has not been served but the seven individuals were served. The seven individuals may still be extradited if they acted in criminal conspiracy, which would bring 5 years in jail needed for extradition.

    Which just made me think of something. 5 years in jail needed for extradition from NZ. Hmmm. Is that typical? Wasn't that part of SOPA - raise the criminal penalty to 5 years for streaming? They must have probably chose 5 years so they could make it an extraditable offense under extradition treaties?

  • On the post: It's Time To Re-Establish That If A Patent Blocks Progress, It's Unconstitutional

    Kenneth Michaels ( profile ), 19 Apr, 2012 @ 03:46pm

    making or selling a product

    Article suggested: "you can only sue over the patent if you're making or selling a product or if you've partnered with someone who is making or selling a product."

    I think this is a bad idea because it would favor large corporations with manufacturing facilities over small innovators in their garages struggling to be noticed. We need to protect the ideas of the small innovators. The big guys would simply ignore those small businesses and individuals, not partner with them.

    There has to be a better way than that.

  • On the post: It's Time To Re-Establish That If A Patent Blocks Progress, It's Unconstitutional

    Kenneth Michaels ( profile ), 19 Apr, 2012 @ 03:37pm

    17 years to 20 years

    The change from 17 years to 20 years in 1995 is actually good news when it comes to limiting the patent term.

    The new term is measured from the date a patent application is filed, whereas the old term was measured from the date the resulting patent issued. Since it usually takes about three years to get a patent (from application to issue), the term did not really change.

    BUT, the old term calculation could be abused by delaying the issue date for the patent, thus effectively extending the patent term. Therefore, the new term calculation has removed this potential for abuse.

    One way would shorten the patent term would be to increase fees for maintenance to keep the patent alive.

  • On the post: The Social Networking Patent Thicket Consists Of At Least 30,000 Patents

    Kenneth Michaels ( profile ), 11 Apr, 2012 @ 11:39am

    Re: Re: Patent Attorney here.

    Just to confuse things further, a patent may have numerous claims. EACH claim is considered its own invention. So, if you wanted, you could have one patent with 10 claims or 10 patents with one claim each. Same thing. But it will cost more to maintain 10 patents versus one patent.

    The number of patents is not as telling as one would think. When a company says, "we have x number of patents," it only scratches the surface. You have to look deeper.

  • On the post: The Social Networking Patent Thicket Consists Of At Least 30,000 Patents

    Kenneth Michaels ( profile ), 11 Apr, 2012 @ 10:46am

    Re: Re: The Examiner's Examination

    That's right. It's about prior art. The Examiner's first rejection indicated that he believed the claim to be patentable over the prior art. The amendments to the claims were not to overcome any prior art. There are reasons for rejections and amendments other than prior art.

  • On the post: The Social Networking Patent Thicket Consists Of At Least 30,000 Patents

    Kenneth Michaels ( profile ), 11 Apr, 2012 @ 07:39am

    Re: Re: Patent Attorney here.

    The distinction here is that the two applications/patents may not be *prior art* to *each other*. For example, a company may have two patent applications pending: scientist A invents drug A, who was working with scientist B who invents drug B. In many situations, these two applications may *not* be prior art to each other because, for example, the inventions are still secret and the inventors were working together at the same company. It may not be surprising that the drugs are obvious in view of each other because the scientists were working together. But given invention A, invention B may be obvious. But neither invention A nor invention B are public in any way and are not prior art. Given invention B, however, invention A may be obvious and vice versa. Solution: allow a patent for both A and B, but require the same ownership and the same patent term.

    But, everyone is correct in that the system can be abused easily.

  • On the post: The Social Networking Patent Thicket Consists Of At Least 30,000 Patents

    Kenneth Michaels ( profile ), 11 Apr, 2012 @ 07:26am

    Re: Re: Re: Patent Attorney here.

    Yes, this is how the system is abused. Instead of an Applicant really inventing two different things and obtaining two different patents, they tweek the words and keep getting patents. They try different wordings to see what sticks. Some other countries (not the US) have limited the extent that you can use this "continuation" practice.

  • On the post: The Social Networking Patent Thicket Consists Of At Least 30,000 Patents

    Kenneth Michaels ( profile ), 11 Apr, 2012 @ 07:21am

    Re: ?requiring the Applicant to promise that the two patents with similar claims would always be owned by the same entity. ?

    You are right when it comes to an aspect of the system that is ripe for abuse. The system is supposed to allow the same applicant that invents A and then invents B to get a patent on both A and B, for example. The patent office allows the patent for A (because it is not obvious in view of the prior art) and allows the patent for B (because it also is not obvious in view of the prior art). Invention A may not be considered prior art to invention B because neither invention has become public yet (in one example) because they are sitting secretly in the patent office. But if the patent office thinks invention B is obvious in view of invention A (even though they are different inventions), the patent office says you can have your patent on A and B so long as you kinda make believe the resulting claims are in the same patent (same ownership, same patent term).

    But this is one aspect that can be abused, and courts recently have been taking a negative view of this abuse.

  • On the post: The Social Networking Patent Thicket Consists Of At Least 30,000 Patents

    Kenneth Michaels ( profile ), 11 Apr, 2012 @ 07:10am

    Re: Re: ?requiring the Applicant to promise that the two patents with similar claims would always be owned by the same entity. ?

    You could infringe one patent without infringing the other patent. Infringement actually goes claim by claim. An infringer could infringe one claim of 20 in a patent, for example.

    Yes, the patent owner could license the two patents separately. But, the licensee would be able to tell that there were other claims/patents out there to contend with. And then at least the licensee would only have to deal with one patent owner in that situation, and could argue that a license was needed for both patents, not just one.

  • On the post: The Social Networking Patent Thicket Consists Of At Least 30,000 Patents

    Kenneth Michaels ( profile ), 10 Apr, 2012 @ 03:41pm

    Re: The whole thing is a joke

    You really have to look at the claims to determine whether a patent is junk or not. There is a lot of junk out there, and maybe this patent is junk, I don't know, but these two paragraphs are written by an attorney who wants to make sure there are "advantages" listed to make some foreign patent offices happy. So, these two paragraphs do not tell me whether this patent is junk or not.

  • On the post: The Social Networking Patent Thicket Consists Of At Least 30,000 Patents

    Kenneth Michaels ( profile ), 10 Apr, 2012 @ 03:36pm

    Re: The Examiner's Examination

    Mike, to follow up, you said that "the words in blue are apparently the sum total of the difference between something that's unpatentable and something that gives you a monopoly you can sue over." Not really. The real difference between patentability and not, in this case, was the filing of a Terminal Disclaimer by the Applicant. The Examiner from the start believed the claim to be allowable over the prior art. The first Office Action by the Examiner did not reject the claim over the prior art, meaning that the Examiner believed the claim to be patentable over the prior art to begin with. Like I said, the Examiner had already been dealing with related applications, and the Applicant had been dealing with this Examiner, so the Applicant submitted claims that the Applicant knew the Examiner would find allowable *over the prior art*.

  • On the post: The Social Networking Patent Thicket Consists Of At Least 30,000 Patents

    Kenneth Michaels ( profile ), 10 Apr, 2012 @ 03:18pm

    The Examiner's Examination

    I reviewed this case. The Examiner essentially indicated that he believed the claims were patentable over the prior art in the first place. (Apparently the Examiner had already been reviewing similar claims by the Applicant in a related case.) And, the amendments to the claims by the Applicant were not to secure the patent in view of the prior art.

    Not that I'm saying that the Applicant deserves a patent.

    Best regards.

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