Archive for November 2010

Google Takes Over Fashion?

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Last week, Google entered the fashion world with their announcement of Boutiques.com, a fashion e-commerce site. Recognizing that the Web is not as suited to finding and buying soft goods like clothing and accessories as it is to hard goods, Google created a fashion search experience more like a brick-and-mortar store, complete with high-definition images of products, linking consumers to other sites where they can purchase the merchandise.

Boutique addresses the significant problems of volume and irrelevancy of search results plaguing other e-commerce fashion sites by limiting the millions of choices available to consumers through precisely identifying the user’s style. Users can take a personal fashion quiz to find his/her style or a user can identify with a particular style by choosing from a collection of hundreds of boutiques, created by anyone from celebrities to ordinary people. Within a boutique, a user can shop a “curated” selection of goods. In addition to the pieces added by the boutique’s curator, Google generates additional fashion choices inspired by the boutique’s content and by the pieces the user has clicked on. Finally, the user may simply search for an item using familiar fashion terminology and refine the results based on many relevant categories.

How does Google accomplish this intricate search? Google employed a multi-disciplinary team including both fashionistas and computer scientists, to infuse fashion sense into what Google does best: searching. The fashion experts identified factors important to a fashion decision such as color, silhouette, and length, and generated hundreds of words to describe these factors. Then, the engineers taught the computer to recognize these factors and words using a method called visual-search technology. Specifically, the engineers coached the algorithm to identify a particular color, for example, by categorizing thousands of photographs as either of that color or not. This visual method significantly improves upon key-word searches typical of other fashion websites, because the product website need not actually describe the color of a product in words for Boutique to recognize the item as that color and include it in search results. In this way, Google’s algorithm uniquely cuts through the clutter of clothing choices on the Web much like a shopper browses in person at a store, potentially changing the way consumers online shop.

The visual search technology at the heart of Boutique.com was developed by a company called Like.com, helmed by Munjal Shah. Google acquired this company and the intellectual property rights to their algorithm for a reported $100 million, as reported by the New York Times, and retained Shah to lead the Boutique project. This acquisition is part of a long line of acquisitions by Google, aimed at developing their intellectual property.

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November 29th, 2010 at 9:52 pm

NLRB: Workers can criticize the boss on Facebook

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The National Labor Relations Act gives employees the right to “engage in … concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The rise of social networking is now asking a new question: should employees be allowed to criticize their boss on Facebook? The matter is complicated by the fact that many companies have social media policies that forbid online discussion of work-related matters.  Should these policies be considered illegal restrictions on a worker’s right to organize?

As reported in the New York Times, the National Labor Relations Board has issued a complaint that, for the first time, takes the position that an employee’s use of Facebook can be a protected concerted activity.  The complaint also took issue with “an overly broad blogging and Internet posting policy.”

The NLRB’s complaint was issued against American Medical Response of Connecticut for firing Dawnmarie Souza.  Ms. Souza, a unionized employee, was given the task of writing a response to a client’s complaint of her work.  Ms. Souza requested union help in preparing the response.  When her supervisor denied the request, she responded by speaking her mind on Facebook.  Importantly, other employees read the online postings.  Ms. Souza was later fired.

The NLRB’s acting general counsel, Lafe Solomon, characterized the controversy as “a fairly straightforward case under the National Labor Relations Act — whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that.”

American Medical Response said in a statement, “Although the NLRB’s press release made it sound as if the employee was discharged solely due to negative comments posted on Facebook, the termination decision was actually based on multiple, serious issues.”

An administrative hearing is scheduled for January 25, 2011.

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November 16th, 2010 at 1:23 am

Posted in Commentary

The Value of “Free”

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The issue of free content on the Internet took an interesting turn last week when a food blogger was told that “the web is considered ‘public domain'” by Cooks Source magazine. As reported by the Los Angeles Times Daily Dish blog, food blogger Monica Gaudio discovered that the magazine had reprinted a piece that Gaudio wrote about apple pie. When Gaudio emailed the magazine, assuming there had been a mistake and requesting a small fee for use of the piece, she received a harsh response from the email account of the magazine’s managing editor. Among other things, the email states:

But honestly Monica, the web is considered “public domain” and you should be happy we just didn’t “lift” your whole article and put someone else’s name on it! It happens a lot, clearly more than you are aware of, especially on college campuses, and the workplace. If you took offence and are unhappy, I am sorry, but you as a professional should know that the article we used written by you was in very bad need of editing, and is much better now than was originally. Now it will work well for your portfolio. For that reason, I have a bit of a difficult time with your requests for monetary gain, albeit for such a fine (and very wealthy!) institution. We put some time into rewrites, you should compensate me! I never charge young writers for advice or rewriting poorly written pieces, and have many who write for me… ALWAYS for free!

As Boing Boing reported, Cooks Source has received a large amount of criticism for its view. One interesting issue to examine is the question of “free” versus the “public domain.” Some Internet thinkers have analyzed the issues of free content online; other scholars have analyzed the use of public domain works by private and individual creators.

It’s important to note the difference between “free” and the “public domain.” Just because something is free, it may not be in the public domain. One example might be the Articles and Notes you find on the MTTLR site – just because we don’t charge for downloading doesn’t mean that they’re in the public domain. Public domain documents – like your favorite Dickens or Austen novel – can be reworked, reused, and reinterpreted by anyone (unlike MTTLR content). That’s how we end up with contemporary classics like Pride and Prejudice and Zombiesthe author added new material to Pride and Prejudice, creating a new derivative work.

Many advocates of free online content might shy away from taking the extra step that Cooks Source took and deem online content as free for reuse and reworking, by virtue of all online content being in the public domain. But there can be more of a spectrum between “free” and “public domain” –  Creative Commons licenses are one way of creating more variations. Had Gaudio marked her content with a Creative Commons license allowing for commercial reuse, Cooks Source might have been in the clear. Creative Commons even allows for public domain marking of online content. Let’s hope that Cooks Source takes care to look for the PD mark next time they’re looking for articles.

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November 9th, 2010 at 12:27 pm

Posted in Legal/Tech News

Google Buzz Settlement

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On November 2, 2010, all of Google users have received an e-mail from Google Buzz informing them about Google’s recent settlement in a class action lawsuit regarding Google Buzz’s privacy issues.  Several plaintiffs filed a complaint alleging that Google violated the Electronic Communications Privacy Act, the Stored Communications Act, the Computer Fraud and Abuse Act, and California State and common law. Google appropriated $ 8.5 million to establish a settlement fund in accordance with the Settlement Agreement.

The plaintiffs are ordinary Google users. They alleged that when Buzz was first rolled out in February, 2010, all Gmail users were automatically added to Buzz. One big issue being complained about is the “followers” and “following” list. The plaintiffs alleged that Buzz automatically created a list of “followers” and a list of persons whom the user was automatically “following”. The lists were created by selecting those email contacts with whom the user communicated most frequently. Thus, Google shared information about one user’s frequent contacts with other users that this user may not agree to share information with, and did not provide the user an opportunity to block the any new follower before the follower views his contacts list.

The “followers” and “following” lists have already created some privacy problems. The complaint provided some cases. For example, the lists revealed that Andrew McLaughlin, Deputy Chief Technology Officer in charge of Internet policy in the White House, continued to have close connections with many Google’s high officials. This prompted one watchdog group to request all emails between Mr. McLaughlin and Google’s higher-ups in concern of his impartiality. There are also concerns about revealing the confidential client and contact lists of lawyers and doctors.

The parties reached a settlement agreement with Google without acknowledging any fault or liability. However, Google agreed to make changes to Buzz to clarify users’ options regarding user information and privacy settings. Google also agreed to “disseminate wider public education about the privacy aspects of Google Buzz.” Finally, Google agreed to establish an $ 8.5 million settlement fund. The fund will be maintained by the Class Action Administrator and will be used to “support organizations promoting privacy education and policy on the web.”

Google made it clear that Gmail users may not receive compensation from this settlement. However, Gmail users do have some options if they do not like the settlement. If a user wants to bring her own lawsuit, she must opt out by mailing the request for exclusion by December 6, 2010. She may also write to the court about her objections to the settlement by January 10, 2011. Finally, she can request to speak in the Fairness Hearing about the fairness and reasonableness of the settlement. The court will hold the Hearing at 9:00 a.m. on January 31, 2011 at the United States District Court for the Northern District of California, San Jose Division. Notice of Intent of Appear must be received before January 10, 2011.

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November 9th, 2010 at 12:24 pm

Posted in Cases

The DOJ has Entered the Gene Patent Fight

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Last Friday, the Department of Justice (DOJ) submitted an amicus curiae brief in the Association for Molecular Pathology v. United States Patent and Trademark Office case (the “Myriad genes case”), which is currently before the Federal Circuit.  Commentators, including the author of an opposing amicus brief, have been quick to criticize the DOJ’s amicus efforts on several grounds.

The Myriad genes case involves the fight over the patentability of isolated genes.  In an epic 156 page summary judgment order issued in March, the Honorable Robert Sweet invalidated certain Myriad Genetics’ patents that related to the BRCA 1 and 2 genes.  The decision held that isolated genes were not patent eligible under 35 U.S.C. § 101.

So, why all the criticism directed toward the DOJ?  To begin, the DOJ represents the positions of the United States and the Obama administration.  Two interests which are clearly important.  Additionally, as one might expect, DOJ amicus filings have been highly influential upon the Federal Circuit.  Recent high-profile cases heard by the Federal Circuit reflect the influence that the DOJ commands, two of which are examined below.

In Ariad v. Eli Lilly, the Federal Circuit noted the government’s position regarding the role of written description doctrine in the day-to-day function of patent prosecution.  Specifically, the court took notice that “[t]he government submitted an amicus brief in which it asserted that the written description doctrine is ‘necessary to permit USPTO to perform its basic examination function’ and claimed that the Patent Office applies § 112, paragraph 1 to over ‘400,000 patent applications each year.’  Br. of Amicus United States 19-20.”   The case, of course, held that written description was a § 112 ¶ 1 requirement, separate and unique from enablement.  Thus, the position advocated by the DOJ prevailed.

In Enzo Biochem, Inc. v. Gen-Probe, Inc., the Federal Circuit confronted the question whether a rehearing en banc should be order.  Again, the court was well aware of the DOJ’s position and made mention of the DOJ’s amicus brief in their opinion.  Specifically, they remarked that “[t]he United States’ brief as amicus curiae [was] in support of rehearing en banc[.]”  The Federal Circuit adopted the position advocated by the DOJ and “grant[ed] Enzo’s petition for rehearing[.]”   

With the weight of the executive branch behind anti-patent sentiments, should the proponents of gene patenting be worried?  It’s hard to say, but gene patenting has become a common practice in the United States, favoring a Federal Circuit finding of patentability.  The Supreme Court has traditionally been a non-entity in shaping patent law doctrine (although this appears to be changing in recent years).  So, it seems unlikely that the Federal Circuit will be willing to overturn decades of precedent, especially when the trend of case law would cut against a narrowing of patentable subject matter.  As commentators in the field have noted “[t]he overall trend of decisions in the Federal Circuit is toward expansive interpretation of the scope of patent-eligible subject matter – even for categories of inventions that prior decisions seemed to exclude from the protection of the patent statute – in order to make the patent system ‘responsive to the needs of the modern world.’”  Rebecca S. Eisenberg, How Can You Patent Genes, in Am. J. Bioethics (2002) (quoting AT&T Corp. v. Excel Communications, Inc., 172 F.3d 1352 (Fed. Cir. 1999)).  Will the DOJ continue to have sway over the Federal Circuit?  The future of gene patenting may be decided by the answer.

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November 9th, 2010 at 12:20 pm

Law Profs Take Action Against ACTA

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The Anti-Counterfeiting Trade Agreement (“ACTA”) has long troubled electronic privacy advocates both substantively and because of its secretive negotiating process. After numerous leaks, an official draft was released on April 21, 2010 after the European Commission voted 633 to 13 to mandate public access to ACTA drafts. University of Ottawa law professor Michael Geist (a signatory to the letter) catalogues ACTA’s provisions on his blawg, while ArsTechnica provides a more practical look at ACTA’s consequences for consumers. This new letter, signed by over 70 law professors and other academics, argues that ACTA is harmful to American citizens and that its status as a “sole executive agreement” is unconstitutional.

Harvard Law School professors Jack Goldsmith and Lawrence Lessig (also a signatory to this latest letter against ACTA), wrote an op-ed in the Washington Post in March, 2010 criticizing ACTA negotiations. In their op-ed, Professors Goldsmith and Lessig focused on the ratification procedure, arguing that the Obama administration has exceeded its Constitutional authority by designating ACTA a sole executive agreement instead a treaty. The difference, of course, is that a treaty requires ratification by two-thirds of the Senate while a sole executive agreement requires nothing more than the President’s signature.

The letter lays out three major complaints with ACTA. First, the professors argue that the secrecy surrounding ACTA’s negotiation undercuts the Obama administration’s “promises of openness and secrecy.” Reports suggest that groups like the International Intellectually Property Alliance, a kind of meta-lobbying group, whose membership includes the RIAA and MPAA, and corporate stakeholders, had a hand in the initial drafting of ACTA.

Second, the professors pick up where professors Goldsmith and Lessig left off and argue that designating ACTA a sole executive agreement is unconstitutional:

Now that a near-final version of the ACTA text has been released, it is clear that ACTA would usurp congressional authority over intellectual property policy in a number of ways. Some of ACTA’s provisions fail to explicitly incorporate current congressional policy, particularly in the areas of damages and injunctions. Other sections lock in substantive law that may not be well-adapted to the present context, much less the future. And in other areas, the agreement may complicate legislative efforts to solve widely recognized policy dilemmas, including in the area of orphan works, patent reform, secondary copyright liability and the creation of incentives for innovation in areas where the patent system may not be adequate. The agreement is also likely to affect courts’ interpretation of U.S. law.

Third, the professors argue that the name ACTA is itself misleading because the true focus of the agreement is not anti-counterfeiting, but instead systemic changes in American (and world) intellectual property law.

The remedies the professors seek are not new in the ACTA debate, but perhaps coming from such a chorus of academics they will give the Obama administration pause for thought. Many of these remedies (on-the-record public hearings, renouncement of sole-executive-agreement status, new language in ACTA reflecting the viewpoints of IGOs and other non-corporate stakeholders) have been suggested before with little action by the US. Unfortunately, it seems that if change comes to ACTA, it is more likely to come from the European Union than it is from the United States.

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November 3rd, 2010 at 9:13 pm

Apple vs. Motorola

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On October 29th, Apple filed two lawsuits against Motorola, alleging Motorola infringed several of Apple’s multi-touch technology patents. Multi-touch technology is a vital part of Apple’s products; it is integrated into the hugely popular iPhone, iPad and iPod touch.

This is just the latest in a flurry of recent legal actions between the two companies. In early October of this year, Motorola filed three separate patent infringement lawsuits (copies of the complaints are available at the following links:  Lawsuit 1, Lawsuit 2 and Lawsuit 3) against Apple, alleging Apple infringed on a variety of its technology patents. A week later, Motorola filed a Declaratory Judgment against Apple, inspiring speculation that because licensing negotiations between the two technology giants had failed, Motorola was filing as a purely offensive strategy.

Motorola released a statement addressing the lawsuits, which reads in part that “[a]fter Apple’s late entry into the telecommunications market, [Motorola] engaged in lengthy negotiations but Apple has refused to take a license. [Motorola] had no choice but to file these complaints to halt Apple’s continued infringement.” Though Apple may have entered the telecommunications industry long after Motorola, worldwide it has a larger volume of phone production than Motorola. This is in large part to the surge in popularity of smartphones, such as the hugely popular iPhone.

Many other lawsuits are currently active in the mobile device industry. Apple currently is also in lawsuits with Nokia, HTC, Kodak and Elan. Motorola is engaged in a patent infringement lawsuit with Microsoft. This trend is likely to continue as smartphone manufacturers capture a bigger part of the market and traditional cell phone manufacturers must keep up with new technology to remain relevant. As one commentator succinctly characterizes the situation, “[t]echnology companies like this often push the envelope when it comes to using technologies that might be patented by competitors, but since it happens so often, a sort of mutually assured destruction prevents things from flaring up. Unfortunately, the nuclear holocaust of lawsuits seems to have begun.”

Will the Motorola-Apple lawsuit upset the status quo of mobile device innovation? Whether it is really “the nuclear holocaust of lawsuits” or just another skirmish that will quickly end in settlement or a renegotiated licensing agreement remains to be seen.

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November 3rd, 2010 at 9:09 pm

Mystery Solved: Verizon Settles With FCC Over “Mystery Fees”

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The Federal Communications Commission announced on Thursday, October 28, 2010 that it had reached a record settlement with Verizon Wireless over the telecommunications giant’s so-called “mystery fees.”  Verizon has agreed to pay a staggering $25 million to the U.S. Treasury and will refund $52.8 million to approximately 15 million customers for wrongfully charging customers over the last three years.  This is the largest settlement payment in FCC history.

The FCC’s Enforcement Bureau began its investigation of the mystery fees in January 2010.  The focus of the investigation was on unexplained “pay-as-you-go” data fees charged to Verizon Wireless customers that are not subscribed to a data package or plan.  Beginning in November 2007, Verizon erroneously charged $1.99 per megabyte for data sessions that customers did not intend to initiate.  For example, customers not signed up for data service were charged when they accidentally pushed buttons that opened the web browser capabilities on their phones.  Data sessions were also initiated by phone applications that automatically accessed the Internet without the customer’s knowledge.

In addition to paying the settlement fees, Verizon has promised to provide greater consumer protections in the future.  The company has promised to cease charging the contested fees and has vowed that no more “mystery fees” will be charged in the future.  Verizon will also allow customers to set up data blocks on their phones so that they will not be charged for any unintended access to the Internet.   Finally, Verizon must improve its customer services by explaining the pay-as-you-go option in plain language and offering tutorials that help customers understand their bills.

Verizon must begin its repayment to customers immediately.  The FCC notes that the repayment is not capped at $52.8 million.  Customers that do not receive a refund but believe that they were wrongfully charged for data services have a right to appeal to Verizon.

The FCC is now investigating other complaints relating to Verizon as well as looking into the practices of other mobile providers.  This is a big step forward for consumer protection in the mobile phone industry.  With the increased capabilities offered by mobile devices, service providers will have the burden of explaining the fees and billing related to these new services.  Consumers will also have an incentive to check their bills for other “mystery fees” now that they know refunds are possible.

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November 3rd, 2010 at 9:04 pm

Limewire Shut Down, Usage Swells in File-Sharing Alternatives

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File-sharing on the internet was dealt a huge blow when a federal judge issued an injunction that shut down the file-sharing program LimeWire.  LimeWire was a free, peer-to-peer file-sharing program that allowed users to share music, videos, and other files over the internet.  The injunction, issued by Judge Kimba Wood of the Southern District of New York, ordered Lime Wire LLC to disable “the searching, downloading, uploading, file trading and/or file distribution functionality” of the LimeWire software.  The company promptly disabled LimeWire from accessing the Gnutella peer-to-peer network, effectively rendering it useless.  However, users with old versions of the LimeWire are still able to use the software for file-sharing so long as they don’t upgrade to the current version of the software.

In addition to the injunction, Lime Wire will also be forced to pay damages for the violation of copyright law.  In May, Judge Wood ruled that LimeWire had violated copyright law and damages are set to be decided in January 2011.  CNET reported that the damages could exceed $1 billion, and that Lime Wire and the Recording Industry Association of America (RIAA) are currently in settlement negotiations.

Despite the injunction, Lime Wire will continue to try to develop a legitimate, paid version of its service.  The New York Times reported that LimeWire will remain in negotiations with major companies in the recording industry to deliver a legal, subscription service for music sharing.  LimeWire has been attempting to create a paid service since 2007 to no avail.  Despite its failures, a LimeWire spokesperson stated that “[w]e look forward to embracing necessary changes and collaborating with the entire music industry in the future.”

In the days since the injunction was issued, alternative file-sharing programs and services on the internet have seen a spike in usage. Although LimeWire was one of the largest file-sharing program used for pirating music on the internet, there are a large variety of other file-sharing options, most notably BitTorrent clients.  While the increased business is nice, LimeWire’s competitors are no doubt worried that they might be the next target of legal action by the RIAA.  File-sharing on the internet is a contentious issue, and the shutdown of LimeWire may be just the first in a line of long, drawn-out legal battles between the RIAA and file-sharing software developers.

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November 3rd, 2010 at 9:00 pm

Posted in Commentary