“Last month, we were hit with two new patent troll cases. With each, there was no warning, no offer to license – just a lawsuit.” Sun Microsystems general counsel Mike Dillon doesn’t hold back (May 14).
Posts Tagged ‘technology’
Web 2.0 beware: Fair Housing Counsel of San Fernando Valley v. Roommate.com
We’ve extensively covered the various fair-housing complaints against Craiglist (Aug. 10, 2005; Feb. 9, Feb. 20, Mar. 6, Jun. 28, Dec. 1, 2006) for that service’s hosting ads for housing and roommates that fall afoul of non-discrimination laws—it’s technically illegal for a woman to say that she’s looking for another woman to share her apartment with, much less a co-religionist or someone without kids. We somehow missed the Santa Clara and San Diego lawsuits against Roommates.com over the same issue. While a district threw out the case, an appeal went to the Ninth Circuit Court of Appeals, and that was that: the three judges, Kozinski, Reinhardt, and Ikuta, wrote three separate opinions, with two of them deciding that there was enough for a suit to go forward on the grounds that there may be a cause of action under the Fair Housing Act because Roommate.com makes it easier for their users to express discriminatory preferences by using questionnaires that are then translated into searchable advertisements, thus supposedly running outside the Communications Decency Act’s immunity provision by being an “information content provider” because it is “responsible, in whole or in part, for the creation or development of [the] information”:
“By categorizing, channeling and limiting the distribution of users’ profiles, Roommate provides an additional layer of information that it is “responsible” at least “in part” for creating or developing.”
Worse, Judge Kozinski’s opinion issues irrelevant dicta, apparently aimed at a suit not being litigated before him:
Imagine, for example, www.harrassthem.com with the slogan “Don’t Get Mad, Get Even.” A visitor to this Web site would be encouraged to provide private, sensitive and/or defamatory information about others — all to be posted online for a fee.
Kozinski posits that this site—plainly based on dontdatehimgirl.com (Apr. 9 and links therein)—would also flunk the CDA protection. (Cal Law reporter/blogger Brian McDonough notes this passage, but apparently thinks it’s just a joke and thus misses its significance.) The administrators of Autoadmit/xoxohth.com (May 3) might also be concerned about this dicta. (Rebecca Tushnet makes this point independently.)
This substantial narrowing of § 230(c) protections is also bad because it now means that a number of Internet sites that were plainly protected before no longer have unambiguous protection, a problem exacerbated by the lack of a clear majority opinion. Creative lawyering can argue that these websites might be within Fair Housing Counsel‘s fact-driven exception to the CDA exception, and thus get past the motion-to-dismiss stage, forcing defendants into expensive legal proceedings.
Elsewhere on the Internet: Volokh; Eric Goldman; Adam Liptak @ NYT; Slashdot; Laura Quilter; Aaron Perzanowski; Lillian Edwards; The Register. Joe Gratz has purchased harassthem.com.
Volokh separately argues the underlying laws are unconstitutional as applied to roommates.
Microsoft’s privacy measures didn’t foil FBI
Michael Alan Crooker, currently in jail in Connecticut, says he tried to keep the data on his hard drive confidential, but FBI agents probing his alleged gun crimes nonetheless managed to duplicate its contents and turned up various embarrassing sex material. He wants $200,000 from Microsoft for disappointing his expectations that its privacy protections would prevent such a thing from happening. (Paul McDougall, “‘Embarrassed’ Gun Suspect Sues Microsoft After FBI Finds Sex Videos On His PC”, InformationWeek, Mar. 2).
Microsoft told to pay $1.5 billion over music patents
“A federal jury in San Diego [Thursday] ordered Microsoft to pay $1.52 billion to Alcatel-Lucent for violating two patents for a technology used by hundreds of companies that allows users to play digital music on computers, cellphones and other portable devices.” (Alan Sipress, “Microsoft Loses Big In MP3 Patent Suit”, Washington Post, Feb. 23). Washington Post tech blogger Rob Pegoraro (Feb. 23):
Alcatel-Lucent’s patent payday has all the things that patent-abuse critics hate:
* “Submarine” patents, invoked years after a contested invention has hit the market? Check
* Claiming ownership of a media format most people use all the time? Check
* A plaintiff that’s failed to commercialize its own alleged invention? Check
* Extortionate royalty demands? Check
(via Kevin Drum, Feb. 23).
Update: Streaming-media patent troll goes respectable?
The Electronic Frontier Foundation in 2004 derided Acacia Technologies Group’s claims of ownership over streaming-media technology as “laughably broad” (see Aug. 17, 2004), but the firm has prospered since then through licensing deals with big companies. It hasn’t had to face its toughest courtroom challenges yet, though. (Xenia P. Kobylarz, “Extreme Makeover: From Patent Troll to the Belle of the Ball”, IP Law & Business, Feb. 15).
N.Y. solon: let’s ban phones, audio in crosswalks
“A state senator from Brooklyn said on Tuesday he plans to introduce legislation that would ban people from using an MP3 player, cell phone, Blackberry or any other electronic device while crossing the street in New York City and Buffalo.” (“Ban Proposed On Cell Phones, iPods In Crosswalk”, WNBC, Feb. 7). Comment: TechDirt, Global Nerdy, Bainbridge, Wired blog. A Blog for All rounds up links. Commenter Mike Knowland at Dvorak.org writes, “It won’t be enforced, but when someone gets hit by a car while breaking this law, the driver won’t be 100% at fault anymore.”
Jack Thompson faces possible disbarment
Aw, that’s not fair. What would we do for material? “Thompson’s ire [at the alleged evils of videogaming] spread to several law professionals involved in the lawsuits he filed. The disbarment proceedings resulted from separate grievances filed by people claiming that Thompson made false statements and attempted to humiliate, embarrass, harass or intimidate them, according to documents in the [Florida bar disciplinary] case.” (K.C. Jones, ” Grand Theft Auto Critic Faces Misconduct Charges”, InformationWeek, Feb. 6; “Jack Thompson Faces Florida Supreme Court Disciplinary Hearing”, GamePolitics.com, Feb. 3; Billy Berghammer, “Jack Thompson Faces Florida Disciplinary Hearing”, Game Informer, Feb. 5). More: Oct. 30, Oct. 20, and many others.
“Cisco Sues Apple Over Use of iPhone Name”
So the AP reports. Earlier press reports indicated that the two were close to a deal, but one suspects that the failure to close it before the sensation created by the announcement at MacWorld led Cisco to raise its price. Overlawyered readers anticipated the story Dec. 18. (Update: Ashby Jones has more detail.)
Further update: Cisco responds in the comments. NB that “raise its price” above doesn’t necessarily mean “money,” but can include other valuable consideration—such as access to Apple’s proprietary technology.
Patent troll, meet Rule 11
Just sending out batches of letters claiming infringement and demanding money may no longer be a workable business plan:
Based in the British Virgin Islands, Eon-Net is run by an evangelical minister-cum-inventor, who holds several patents (including one on a device for collecting “canine waste”). In March 2005 the company filed a patent suit in New Jersey against Flagstar, a $16 billion savings bank based in Michigan. The bank was one of 32 companies sued separately by Eon-Net for infringing a patent that, the company claims, covers technology that allows online shoppers to enter information into Web sites and have it transferred to the Web retailer’s computer. Eon-Net, which also has pending litigation against JetBlue Airways and Liz Claiborne Inc., had successfully extracted settlement money from ING Bank and Sony Corp. over the same patent.
Eon-Net’s enforcement method involved filing a complaint followed by a letter offering a settlement ranging from $25,000 to $75,000.
Flagstar decided to fight the suit, and its attorney, Melissa Baily of Quinn Emanuel, noticed that Eon-Net’s lawyers “had used nearly identical complaints and demand letters in all 32 suits,” suggesting a lack of careful advance investigation. Although Rule 11 sanctions are especially hard to obtain in the Ninth Circuit, Western District of Washington Judge Marsha Pechman agreed that the suit was both baseless and made without reasonable inquiry and, after ruling in favor of Flagstar on summary judgment in the case itself, ordered Eon-Net and its attorney, Jean-Marc Zimmerman, to pay the bank’s defense costs, estimated at more than $100,000. (Xenia P. Kobylarz, “Patent Trolls Put on Notice Over Generic Infringement Letters”, IP Law & Business, Dec. 14).
“iPhone” iPWNed?
December 18 isn’t a typical day for new-product announcements, but Linksys announced a new VOIP phone today. The timing makes more sense when one realizes that Apple was about to announce an iPod-compatible cell phone in January, a product that was widely called “iPhone” in the press, but that Linksys owned the “iPhone” trademark since 1996. But without a product using the trademark, Linksys would not have been able to hold on to the name. By preempting the name, Linksys will either be able to extract rents from Apple on a now valuable trademark or force Apple to spend millions creating a new name for the product that doesn’t have the advantage of the brand extension from Apple’s “iMac” and “iPod.” (“The Working Guy” blog; Gizmodo blog (and followup ) (h/t WF)).