Kinderstart v. Google

Speaking of litigation, here’s another one, albeit rather old news. The short version: Kinderstart, a web startup focused on children, decides to sue Google because its PageRank drops when Google decides to fine tune its PageRank algorithms. PageRank, btw, is what determines where your site shows up in search results when someone searches on key terms in Google. So when your PageRank drops, less people see the link to your site, less people find your site, and therefore your traffic and revenue go down.

Because of this, they sued Google for damages and also sought an injunction to require Google to reveal their proprietary PageRank algorithms (which of course Google closely guards as a trade secret.

As with the Culligan case, yes, well written decision, etc. etc., and I understand the logic and all that, but there’s a little part of me that wishes that the court could have written a judgement like this:

Kinderstart, this is Google. Google is a separate business from yours. They don’t owe you a living. So, in response to your claim, the answer is no. Now go away.

Tip o’ the hat to the Stella Awards for mentioning this in their listserv. Highly recommended for their take on US litigation.

Valuation of Flies

One of the great things about working in a large firm is the sheer depth of expertise and knowledge. As an example, a recent case came out and was analyzed in short order by the folks in our litigation group, which discussed an interesting interpretation liability for negligence.

The first three paragraphs sum it up rather nicely:

[1] The Mustaphas maintain a spotless home. Cleanliness and hygiene are matters of utmost importance to them. On November 21, 2001, an incident occurred that offended their sense of sanctity in the purity of their home, and shattered Mr. Mustapha’s life. In the course of replacing an empty bottle of Culligan water on the dispenser provided by Culligan, he and his wife saw a dead fly, and part of another dead fly, in the fresh, unopened, replacement bottle.

[2] Neither Mr. Mustapha nor any member of his family drank from the bottle. He became obsessed, however, with thoughts about the dead fly in the water and about the potential implications for his family’s health of their having possibly been drinking unpurified water supplied in the past.

[3] The trial judge accepted the medical evidence that Mr. Mustapha suffers from a major depressive disorder, with associated phobia and anxiety – all triggered by the fly-in-the-bottle incident. In the result, Mr. Mustapha recovered judgment at trial in the total amount of $341,775, plus pre-judgment interest, for psychiatric injuries suffered because of the incident.

My emphasis. The decision goes on for many, many more paragraphs to ultimately overturn the judgement and absolve Culligan of liability. Its a well thought out judgement with cogent arguments supporting the conclusion.

All that being said, even as a lawyer, sometimes I read certain cases, such as this one, and wonder whether judges ever wish they could write a judgement more along these lines:

C’mon Mr. Mustapha. Its a fly. OK, a fly and a half. It didn’t kill you. It wouldn’t have killed you. Get over it. Fine, you freaked out. And I probably would also be a bit upset. But really, destroying your life? $341,000 in damages? No, the damages aren’t from the fly, they’re from you. So forget it. Not today. Not in my court. Appeal allowed. Good day.

Yes, I have my tongue firmly in cheek and yes, definitely, I understand the need for lengthy and well-reasoned judgements, etc. But sometimes, just sometimes, I scratch my head a bit and wonder what the world would be like…

Microsoft Patents RSS. Or Tries To. Maybe.

Interesting post on someone else’s blog about Microsoft apparently trying to patent RSS:

The applications, filed last June but just made public yesterday, cover subscribing and discovering what Microsoft calls “Web feeds.” That comes as a bit of a shock to anyone who’s been working on RSS, which has its origins in a format developed seven years ago at Netscape Communications.

Microsoft executive Don Dodge, while not involved in the patent applications, says he suspects the filings were made to defend the company against “patent trolls”. (The filings were made shortly before Microsoft announced plans to build RSS technology into its upcoming Vista operating system.) Still, if granted, the patents would give Microsoft a legal cudgel to wield against other companies using RSS.

Well. They do have a point. Generally speaking, I don’t think patent trolls (those that basically file overly broad patents and then sit on them in a dark cave until someone who actually does something useful, and therefore has deep pockets, unwittingly infringes, at which point the troll comes out and clubs them over the head with a lawsuit or settlement) are a good thing. That being said, its ironic that Microsoft feels the need to abuse the system in the same way as patent trolls in order to proactively defend itself. It will be interesting to see how things turn out.

Unfortunately, I’m not necesarily sure that prior art would necessarily invalidate these patents – after all, most of NTP’s patents were more or less considered invalid, but that didn’t stop them from collecting several hundred million from RIM. And its not like there haven’t been other, um, rather broad patents asserted in the past. You know, like back in 2002, when British Telecom asserted ownership of hyperlinks (which they lost) though of course BT doesn’t quite fit the description of a patent troll.

Then again, it begs the question as to who or what should or shouldn’t be considered a patent troll – for example, its well known that IBM has a huge, gigantic, enormous arsenal of patents at its disposal. IBM also actively licenses these patents (and of course threatens litigation where it believes its rights are being violated), but it isn’t necessarily the case that IBM would otherwise have exploited these patents in what I’ll call “active” business – i.e. making and selling something based on the patent as opposed to primarily seeking royalties and licenses from those do – even though IBM does do so in some cases. So does that make IBM a patent troll? What about Philo T. Farnsworth who, arguably, never started producing televisions but instead sought legal claims against others?

My perhaps overly simplistic take on this is that patent trolls are not inherently the problem, but rather the ability, primarily in the US, to register patents that should have never issued in the first place. If someone comes up with a smart, cool, inventive, and truly novel way of doing something, then they should certainly be free to either produce something with it, or sue the living daylights out of someone else who comes along and infringes the IP even if they don’t (or can’t) make productive use of it themselves. Not actively exploiting a patent is not necessarily tantamount to being a bad guy, IMHO.

It will be interesting to see what happens on this front, if anything. If nothing does, then I may well turn to drafting patents, the first being “Method of Utilizing a Rhythmic Cadence in the Expansion and Contraction of Multiple Muscular Groupings to Faciliate Indefinite Continuation of Metabolism of Cell Structures.” I like the sound of that. Yes indeed.

RIAA to AllOfMP3: Show Me the Money!!

Interesting article in TechCrunch about how AllOfMP3 told the RIAA to get lost when it filed its $1,650,000,000,000 (yes, you did read that figure right – its in the trillions) claim in New York against AllOfMP3, even though AllOfMP3 operates out of Russia. From a legal perspective one would typically launch into the complexities of jurisdiction, judicial comity, real and substantial connection, forum non conveniens, blah, blah, blah.

But since this is a personal blog, let’s focus on the fun part, shall we? Let’s focus on the CASH. Woohoo! Fun with numbers. OK, so, let’s see. Accordingly to the CIA World Factbook, the current population of the world is 6,525,170,264. So, if the the damages sought by the RIAA were evenly divided amongst every man, woman and child, each one of them could go out and buy, oh, about twenty CDs, give or take. Wow. That’s a lot of CDs.

Another way to look at it? Its bigger than the GDP of every country in the world except for roughly the top ten. Yes yes, figures are few years old. Fine. Call it 15. You get the point. In any event, around the ballpark GDP for all of Russia. Yes, including the little nesting doll thingies.
From a more personal perspective, the interest on that amount, calculated at the low, low US fed rate for the shockingly painful period of time of two minutes is quite just a bit more than the combined annual incomes of me, my wife, my mom, stepmom, dad, sister, and her husband make in a year.
The point? Just that its a lot of money. A LOT of money. Not exactly googol or a googolplex

(which, as you probably know, is how Google got its name:

The Internet search engine Google was named after this number. Larry Page, one of the founders, was fascinated with mathematics and ‘Googol’, even during high school. They ended up with ‘Google’ due to a spelling mistake on a cheque that investors wrote to the founders.

(from Wikipedia)) but still a lot of money.

Update:  Further news from the INQ – apparently they calcuated damages at US$150,000 per song. Though the INQ correctly observes that AllOfMP3 hasn’t made that much money, damages could also be measured not by what an infringer has made (or an “accounting of profits”) but also the harm that they’ve cost you – so if AllOfMP3 sold each song for a penny, while the RIAA members would have otherwise sold the same song for a buck, multiply that by 150,000 downloads and you have your damages, as that is what they’ve lost out.