The Continuing Apple v Apple Suits

the joys of definitions: For a 3rd Time, Two Apples Meet in Court

Apple Computer will meet the Beatles’ Apple Corps in court this week in London, where a judge will determine whether Apple Computer’s iTunes online music service violates a 1991 agreement between the two companies that, the Beatles’ Apple claims, blocked the computer maker from selling music.

Apple Corps, which represents the Beatles’ business interests and markets their post-1968 recordings on disc, wants the computer firm to stop using the Apple trademark to sell recordings online, along with unspecified damages. Apple, the maker of Macs and iPods, said the 1991 agreement permitted using the Apple name to sell online data transfers, which are what downloaded songs amount to.

The judge hearing the case, Justice Edward Mann, is an iPod user, but neither side has asked him to recuse himself.

Another Patent Case (updated)

Too bad it’s structured so narrowly — the real question is what we were thinking when business method and software patents were created: Justices Will Hear Patent Case Against eBay

The United States Supreme Court will hear arguments on Wednesday in a protracted, closely watched patent case that pits a small company called MercExchange against eBay, the online auction and marketplace.

While the grounds in the case appear narrow — the court will reconsider the rules under which courts grant injunctions against a company found to be infringing another’s patent — it has attracted enormous attention because of the public rancor between the two companies, the supporters enlisted by both sides and the growing issue of how large technology companies deal with the constant threat of patent challenges.

The patent in question surrounds the “Buy It Now” feature that eBay uses to allow processing of transactions for the Web site’s fixed-price purchasing option.

The Supreme Court will decide whether a federal appeals court was correct in reversing a district court’s decision to deny an injunction against eBay’s use of the feature. In doing so, it will reconsider a precedent from 1908, which suggested that injunctions were always an appropriate remedy for patent infringement.

[…] The case has attracted an unusual amount of public attention in part because of recent attempts by large corporations to change patent law to lessen the threat posed by so-called nonpracticing patent holders.

“Large companies like Microsoft and Intel get hit by weekly patent infringement suits, the majority from smaller entities who may not be practicing the inventions,” said Dennis Crouch, a patent attorney in Chicago who has been following the MercExchange case closely. “The big guns behind eBay are trying to weaken the power of a patent and lessen the ability of a patent holder to obtain an injunction.”

In his decision to withhold the injunction, the district court judge noted that MercExchange “exists solely to license its patents or sue to enforce its patents, and not to develop or commercialize them.”

NYTimes OpEd: Editorial: EBay at the Bar

More broadly, granting MercExchange an injunction is not in the public interest. The patent office has been too willing to grant patents, especially technology patents, when applicants attempt to stake a legal claim on some basic process or relationship rather than on a genuinely new innovation. If the courts now give patent holders the right to nearly automatic injunctions against companies that infringe patents, patent holders will have the power to extract windfall payments from companies that are caught in their nets.

That would ultimately be bad not just for the companies, but for all of us. The Internet, and scientific progress in general, would suffer if abusive patent litigation was allowed to sap the resources of entrepreneurs and discourage innovation. If a patent has been infringed, courts can make the infringer pay up without bringing parts of the Internet and the technology world to a halt.

From Wired News: eBay Heads To High Court; Slashdot: U.S. Supreme Court Hears eBay Case Wednesday

Video-On-Demand vs. Recording?

Should be interesting to see how the pricing negotiations go on this — particularly since ad placments may well be inescapable: Cable Negotiates to Offer Instant Reruns (for a Fee)

The nation’s second-largest cable operator has initiated talks with the four biggest broadcast networks — CBS, ABC, Fox and NBC — about testing a service that would give viewers access to top programs, as rated by Nielsen Media Research, soon after their broadcast.

A video-on-demand service based on the shifting whims of TV viewers would represent the first effort to package and sell television programs in a way that mimics the “wisdom of crowds” approach, which has become common on the Internet and underpins the way search engines like Google rank results.

Since their establishment a half-century ago, Nielsen ratings have mainly been used as a measure of the popularity of a program, and therefore its attractiveness to advertisers. The concept under discussion is aimed at making what was on TV last night as compelling to viewers as what is on tonight.

[…] One approach being contemplated, one participant said, would offer viewers on-demand access to programs ranked in the top 20 (over a period of time to be determined) for a fee of $10 a month, on top of the regular bill. A price for an individual program may also be contemplated, another person close to the talks said. “There have been high-level discussions, but no definitive decisions or deals,” Mr. Harrad said.

Such a service would be the latest in a string of new video-on-demand services for consumers who do not use the increasingly popular digital video recorders or who did not record a particular program and became interested in watching it as a result of its ratings success.

A “Many Eyeballs, Shallow Bugs” Experiment On Iraqi WMDs

A test of Linus’ Law? Or an excuse for a free-for all? Iraqi Documents Are Put on Web, and Search Is On

All the documents, which are available on, have received at least a quick review by Arabic linguists and do not alter the government’s official stance, officials say. On some tapes already released, in fact, Mr. Hussein expressed frustration that he did not have unconventional weapons.

Intelligence officials had serious concerns about turning loose an army of amateurs on a warehouse full of raw documents that include hearsay, disinformation and forgery. Mr. Negroponte’s office attached a disclaimer to the documents, only a few of which have been translated into English, saying the government did not vouch for their authenticity.

Another administration official described the political logic: “If anyone in the intelligence community thought there was valid information in those documents that supported either of those questions — W.M.D. or Al Qaeda — they would have shouted them from the rooftops.”

But Representative Peter Hoekstra, the Michigan Republican who is chairman of the House Intelligence Committee and who led the campaign to get the documents released, does not believe they have received adequate scrutiny. Mr. Hoekstra said he wanted to “unleash the power of the Net” to do translation and analysis that might take the government decades.

“People today ought to be able to have a closer look inside Saddam’s regime,” he said.

Mr. Hoekstra said intelligence officials had resisted posting the documents, which he overcame by appealing to President Bush and by proposing legislation to force the release.

The timing gives the documents a potent political charge. Public doubts about the war have driven Mr. Bush’s approval rating to new lows. A renewed debate over Saddam Hussein’s weapons and terrorist ties could raise the president’s standing.

Slashdot: Open-Government Technique Used on Iraqi Documents

Later: NYTimes’ Editorial: Surfing for W.M.D. on the Web

Much later: Salon is suspicious of some of the content — Bush’s bogus document dump [pdf]

A Friend (and TPP Alum) Makes The Front Page of the NYTimes

Once a Maverick, Google Joins the Lobbying Herd

In doing so, Google provides another example of how Internet companies, no matter how unconventional their roots or nonconformist their corporate cultures, increasingly find themselves wrestling with the same forces in Washington that more traditional industries have long faced. Google’s executives consider the moves necessary as they achieve a prominence that allows them to elbow their own interests onto the political stage.

“We’ve staked out an agenda that really is about promoting the open Internet as a revolutionary platform for communication,” said Alan Davidson, brought on board less than a year ago as the company’s policy counsel to set up offices in the Penn Quarter area of Washington. “It’s been the growth of Google as a company and as a presence in the industry that has prompted our engagement in Washington.”

[…] “They are brilliant engineers,” said Lauren Maddox, a principal in the bipartisan lobbying firm Podesta Mattoon that was hired by Google last year. “They are not politicians.”

[…]The big Internet companies, including Google, are bracing for an uphill struggle with lawmakers and the titans of the telephone and cable industries over whether fees should be charged for heavy data traffic, like video streaming over broadband width.

“Our belief is that this is going to be an issue of great concern for consumers,” Mr. Davidson said. “The telephone companies have been lobbying these committees for generations. Our industry is very young.”

Surveillance Society Comes To Alaska

80 Eyes on 2,400 People – Los Angeles Times [pdf]

Now the residents of this far-flung village have become, in one sense, among the most watched people in the land, with — as former Mayor Freeman Roberts puts it — “one camera for every 30 residents.”

Some don’t mind, but many others are furious and have banded together to force the city to take the cameras down.

“You better smile. You’re on camera,” says Roberts, 64, a barge captain. Roberts himself isn’t smiling as he points out a single camera on the side of a building. The camera is aimed toward an alley.

“It’s amazing, isn’t it?” he says. He drives around town in his pickup, spying on the cameras that he believes are spying on him. “Everywhere you look, there’s one looking at you.”

The Movie Biz and Digital Tech

An LATimes piece on embracing the future: Film projection [pdf]

In its obsession with quarterly earnings, the industry has failed to notice that movie lovers — led by young males, once the most loyal members of the tribe — are being transformed into media consumers, siphoned away from movie theaters by a growing assortment of more involving electronic toys. If you need more evidence, read the fascinating recent survey conducted by OTX, a leading movie research firm that found that under-25 males, the earliest adopters of new technology, saw 25% fewer movies in the summer of 2005 than in the summer of 2003. Even worse, young males now rate theatrical movies No.7 among weekend activities, behind everything from surfing the Web and playing computer games to (ouch!) going out to dinner.

“There’s an attitudinal shift in our culture,” says Kevin Goetz, who heads OTX’s West Coast media and entertainment division. “In the last 10 years there’s been a 500% increase in what the average digital consumer spends on entertainment, but that increase is going to iPods, cellphones and computer games, not more theatrical moviegoing. People have so many other things to do with their time that they view the prospect of going to the movies very differently than 10 years ago.”

[…] But studios can’t simply announce that they’re in the digital business. They have to adopt the DIY sensibility of young consumers who want to put an individual imprint on content. For young Web devotees, the most absorbing art right now is not movies but “mash-ups,” which began as idiosyncratic remixes of two different songs but have now made the leap to video, where “The Shining” trailer has been reinvented as a feel-good movie and “Sleepless in Seattle” recast as a stalker film.

Savvy studio marketers have jumped into the fray. New Line Cinema has encouraged fans to mash up its trailer for the film “Take the Lead,” with the results posted on YouTube and other sites. “Snakes on a Plane,” another upcoming New Line film, has generated plenty of buzz on fan-based sites as a result of a movie poster Photoshop contest at and a promotion that gives would-be recording artists a shot at movie soundtrack spot.

Young people still love movies. But with the exception of a steadily shrinking number of Big Event films, they don’t have an overriding desire to see them in a theater. And they aren’t willing to wait until the studios have cashed in their DVD profits. If it takes months for a movie to come to their preferred medium, they’ll find other content to absorb. Like it or not, this is a generation trained to access media when and how it wants it, not when it best fits the studio’s profit picture.

Hacking Sat Radio Onto Cellphones

Fans put satellite radio on cellphones, draws fire [pdf]

But as the two satellite radio providers carefully ponder their mobile strategies and chew over business plans, a small group of technically savvy devotees are taking matters into their own hands.

Grassroots software and Web developers have found ways to tap into XM Satellite Radio Holdings Inc. (Nasdaq:XMSR – news) and Sirius Satellite Radio Inc.’s (Nasdaq:SIRI – news) Web sites to stream music channels on to Windows-powered smartphones and other devices.

Most have given their work away for free to other fans since late last year — running into conflict with the wireless business strategies of the satellite radio providers.

Digital Distribution, Orchestra Performances

Music: Classical, Now Without the 300-Year Delay

Both orchestras are part of a new initiative by the Universal Music Group built on its Deutsche Grammophon and Decca labels. Christopher Roberts, president for classics and jazz for Universal Music Group International, says that DG Concerts and Decca Concerts will, between them, ultimately service about 10 orchestras in the United States and abroad. Negotiations are under way with orchestras in London, Paris and three German cities. The current intention is for each orchestra to offer, on average, four concerts a season for digital downloading, and one of the four would also be released on CD.

The project reflects a seismic shift in the way music is being discovered, distributed and heard. In 2005, Nielsen SoundScan reports, sales of digital tracks for downloading to computers or portable music players soared to 353 million units in the United States, up 150 percent from 2004. Downloads of digital albums increased 194 percent, to 16 million. Although classical labels arrived late to the party, they, too, are experiencing growth in this area. While sales of classical CD’s in the United States decreased by 15 percent last year, SoundScan reports, digital downloads of classical albums grew by 94 percent. More significant, several labels are finding that the classical share of the download music business is about 7 percent, more than twice the share in physical retail outlets.

For the classical music industry, weary of alarmist talk about the graying of its audience, the demographics are promising.