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.

Were You Once a Brobeck Client?

Very interesting post on TechCrunch on how the digital records of law firm Brobeck, Phleger & Harrison, for some 10,000 clients, will be preserved and made available to a limited group of scholars and researchers, through what will be called the Brobeck Closed Archive.
Wow. At first blush I had the same reaction as Michael Arrington (the TechCrunch guy) and the guy who wrote the original article that he cited. But if you read through the FAQ at the sight, as well as the comments that the professor who is running the thing posted on TechCrunch, its pretty clear that they’re not going to be displaying lawyer-client documents on a website for all to see – there will be some measure of protection put into place.

That being said, though I certainly understand the historical significance of these records, and the objectives of the archive (which seem entirely noble) I get a bad feeling about this generally – you know, kind of like that little tickle at the back of your throat that almost, but not quite, wants to make you cough. Heck, if I were a client of a law firm, would I want anyone looking at my counsel’s records on me? Even if it were a researcher? Even under NDA? And even with restrictions? Well, no, I don’t think so. Not at all. Its not any researcher’s business – not at all. So sure, maybe as an opt in program, if the client consents, but otherwise, even, I think, where a corporate client no longer exists to approve disclosure, the records should also do the same.

So, if you were once a Brobeck client, and haven’t seen the notice, you might want to get in touch with the archive.

about

This site was created and is maintained by me, David Ma. For the technical details of the site, please see the colophon. For the details on me, peek at my¬†LinkedIn profile. The short story is that I’m a corporate/commercial lawyer in Toronto, Ontario (Canada), specializing in technology-related transactions and companies.

Why this site? Primarily as an outlet to make personal and informal observations on developments in the technology industry as I see them. And to let me poke around with a little bit of technology.

Views expressed here are solely my own. Don’t rely on anything on this site as if it were legal advice (or for that matter “legal information”), because it’s not. Questions? Feedback? Feel free to e-mail me or contact me through LinkedIn, or if you like, by carrier pigeon.

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