Patent Troll Sues Everyone For Infringing On Encryption-Related Patent By Encrypting Their Websites

from the um,-we-actually-offer-no-encryption-services-of-our-own.-sorry. dept

Underdog Texas company takes on corporate giants!

Scores of big brands – from AT&T and Yahoo! to Netflix, GoPro and Macy's – are being sued because their HTTPS websites allegedly infringe an encryption patent.

It appears in May this year CryptoPeak Solutions, based in Longview, Texas, got its hands on US Patent 6,202,150, which describes "auto-escrowable and auto-certifiable cryptosystems."

CryptoPeak reckons TLS-secured websites that use elliptic curve cryptography are infringing the patent – so it's suing owners of HTTPS websites that use ECC. Top tip: loads of websites use ECC these days to securely encrypt their traffic.

CryptoPeak, of course, offers no cryptography products. It does, however, manage a portfolio of 66 lawsuits, all filed in the Texas Eastern District Court, beginning roughly 60 days after it acquired the patent. Among the illustrious names listed as defendants are PNC Financial Services, VUDU, Netflix, State Farm, Allstate, Petco, GoPro, Mary Kay, Target, Groupon, Williams-Sonoma, Etsy, Priceline… well, the list goes on and on and on.

All of these companies produce goods and services. CryptoPeak does not. The only thing it produces are lawsuits. The patent it's using in its litigation doesn't appear to actually cover the allegedly infringing activity it's suing over.

Perhaps crucially, [the patent] describes a means for "generating public keys" and "publishing public keys", and it's certainly true that ECC does involve generating public keys and using them.

But the patent is focused on "a key recovery agent to recover the user's private key or information encrypted under said user's corresponding public key" – which is really not the point of ECC.

Netflix, which has already moved to dismiss the suit against it, doesn't concern itself too much with the patent's supposed function. Instead, it argues the patent (along with the numerous lawsuits) should be invalidated/tossed because of other wording used in the patent paperwork itself.

The invalidity of the claims asserted here is cut and dry. The Asserted Claims recite “a method and apparatus.” Thus, a practitioner cannot know the scope of the Asserted Claims from reading them because they explicitly claim “separate statutory classes of invention,” an act expressly forbidden by the law. For this reason alone, these claims are invalid on their face, and the Court should declare so at this stage.

Netflix then points out the "method and apparatus" wording appears in multiple claims.


All of which should serve to kill the lawsuit and, possibly the patent, no matter how much the troll protests.

The defect in these claims is so glaring that CryptoPeak’s only choice is to request that the Court overlook the express words of the claims, construe the claims to read out certain language, or even correct the claims. CryptoPeak has done just that in its Amended Complaint, alleging that “[n]othwithstanding that [the claims] generically recite the existence of ‘apparatus’ in their preambles, each of the . . . Asserted Claims is a method claim . . . .” (Dkt. No. 21 at 4 (emphasis added).)

This request is improper and should be rejected. The Court must read the claims as written, “not as the patentees wish they [ ] were written.”

Seems like a solid argument, but CryptoPeak didn't file in this particular court just because it coincidentally happened to have rented a mailbox and an empty office in Longview, Texas shortly before filing the lawsuits. It filed in this court because magical things often happen for patent trolls -- wholly unrelated to the validity of their claims and their affected Texan accents. If this wasn't the case, then this particular district wouldn't be the IP shitmagnet that it is. If CryptoPeak can nail down a few settlements and licensing agreements, it makes the hassle and expense of serial filing worthwhile. And isn't that why our patent system was implemented in the first place?

Filed Under: encryption, https, patent troll, patents
Companies: at&t, cryptopeak solutions, etsy, gopro, groupon, macy's, netflix, petco, priceline, target, yahoo

DailyDirt: Say Cheese... All The Time

from the urls-we-dig-up dept

Cameras are everywhere now. That's not really a surprise to anyone. Camera technology has vastly improved and gotten a lot cheaper, and sharing and storing photos is incredibly easy and cheap, too. So what's left for cameras to do? Plenty. There are some innovative new kinds of cameras, like the Lytro which lets you re-focus shots after you've taken them (instead of before). We've also pointed out lensless cameras, single pixel cameras, plenoptic cameras, panoramic cameras... and there seems to be no shortage of cameras and camera accessories on the way.

• DJI, the Chinese drone manufacturer, is selling a camera for consumers that sits on a gimbal so that capturing smooth video shots is easy. GoPro has a drone, so it makes sense for drone makers to go after high-end cameras. Who wants a selfie stick anymore? [url]
• The Light L16 combines sixteen cameras in a single device, along with multiple lenses with different focal lengths and an infrared-laser range finder. The result is 52-megapixel images that can be taken under challenging low-light conditions and post-processed endlessly. [url]
• For folks who don't want to give up their DSLR -- there's an attachment called the KaleidoCamera that sits between a camera body and a traditional lens. Maybe people should just get used to buying new cameras all the time, instead of trying to adapt new tech onto their old kit -- or maybe someone will finally perfect the digital film cartridge adapter. [url]

After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.

Filed Under: camera gear, cameras, digipod, drones, dslr, kaleidocamera, l16, photography, sensors
Companies: gopro, light, lytro

Digital Camera Review Taken Down By A Botched DMCA Notice That Makes Claims Of Trademark Infringement

from the IP:-it's-all-so-much-peanut-butter-and-chocolate,-apparently dept

We've seen the DMCA takedown process abused to stifle criticism or remove unflattering content from the web. Knowing that, the first reaction to reading about a website being forced to remove a product review after being hit by a DMCA notice is to assume some overzealous representative of the affected company is simply using copyright's powers for evil.

DigitalRev recently posted a review comparing GoPro's Hero 3 camera with Sony's HDR-AS15. Not long after that, a DMCA notice arrived from GoPro (or rather, its "brand representative"), demanding that the review be taken down. So far, so censorious. But the DMCA notice sent didn't describe any sort of copyright violation. Instead, it headed off into a completely different IP area.

The notice starts out like many others:

We are providing you this letter of notification pursuant to the Digital Millennium Copyright Act 17 USC??512(c) to make Softlayer.com aware of material on its network or system that infringes the exclusive copyrights of Woodman Labs, Inc d/b/a GoPro (“Company”). We hereby affirm that the undersigned is authorized to act on behalf of Company whose exclusive intellectual property rights we believe to be infringed as described herein.

Barring the extraneous question marks, this all looks perfectly normal. But the next paragraph reroutes the entire DMCA.

We have a good faith belief that the Internet site found at digitalrev.com infringes the rights of the Company by using the following trademarks of the Company:

“GOPRO” Registered: 3/3/2009 US Registration# 3032989

“HERO” Registered: 12/20/2005 US Registration# 3308141

At this point, the notice's issuer, Patrick Hayes (Brand Manager for Woodman Labs), is in uncharted territory. The Digital Millennium Copyright Act notice is for copyright violations only, as can readily be determined by name of the notice itself. Hayes reasserts his trademark violation claim a few paragraphs later, along with a sentence that briefly raises copyright again before returning to the misguided effort at hand.

As you may know, if this information is not removed after notice that complies with the DMCA, the Internet Service Provider may also be held liable for the copyright infringement.

I have a good faith belief that use of the trademark(s) described above in connection with the domain and URLs described above is not authorized by the trademark owner, and such use is not otherwise permissible under applicable law.

I represent that the information in this notification is true and correct and that I am authorized to act on behalf of the trademark owner.

Hayes really shouldn't be "representing" that any of this bizarre IP melange is "true and correct." Most of it isn't, starting with using a copyright-only takedown form to shutter a review over alleged trademark infringement. Then there's this: the trademarks mentioned are character marks for the name of the product itself -- "GoPro Hero" -- suggesting that DigitalRev is not allowed to use the name of the product when reviewing the product. This is not how trademark law works. At all.

Hang on, though. It gets a bit weirder from there.

As I mentioned earlier, the first reaction is that GoPro doesn't like DigitalRev's review and wants it removed before many more people can read it. (That was DigitalRev's first instinct as well, as detailed in its follow-up post on the subject.) Fortunately, DigitalRev screencapped the relevant part of the review.

There's nothing in that review that looks like it should trouble GoPro enough to overreact in this fashion. In fact, commenters on the site point out that DigitalRev's reviews of GoPro products usually range from "positive" to "overenthusiastic." So, if the review isn't the issue, what is?

Thankfully, another rep from GoPro responded quickly to clear up the confusion... by adding more confusion. The official statement, left at both Reddit and PetaPixel reads as follows:

Thanks for the heads up on this issue. The letter that was posted next to the review on DigitalRev was not sent in response to the review. Obviously, we welcome editorial reviews of our products. This letter was sent because DigitalRev is not an authorized reseller of GoPro products and they were using images and had incorrect branding and representation of our product in their online commerce store. As part of our program – we ask merchants who are selling our product to use authorized images. That is why DigitalRev was contacted. But – our letter did not clearly communicate this and that is something we will correct.

There are a few problems with this, but first and foremost is the fact that the URL specified in the takedown notice is the review's URL. Nothing involving DigitalRev's online store was mentioned in the letter and no offending URLs listed. Not only that, but this rep claims to have spotted offending 'images,' something the mentioned trademarks don't cover. A comment left at PetaPixel by GoPro's social media rep adds this to the conversation:

There are a few things that are muddling this situation at the moment. The notice was sent to digitalrev.com not because of the review, but because digitalreview.com is not an authorized reseller and are using our trademark and product images inappropriately. The notice is in regards to the sidebar, not the review itself, but we can see why it seemed like it as the url links to both.

We would never attempt to restrict anyone's freedom to share their opinion about us or our products, positive or negative.

Even if this rep is correct and Woodman Labs meant to target improper use of its trademarks, it missed with both the delivery system and the URL specified. A DMCA notice can't stop trademark infringement. Furthermore, while a hosting company can be held liable for contributory trademark infringement, it's usually a result of the host mishandling takedown notices (and some conflation of copyright and trademark by the presiding judge), rather than a foregone conclusion. Then again, if you want to hold a service provider liable for this sort of infringement, it helps to use the standard process -- directly contacting the site owner and asking him or her to remove the infringing items. Using a DMCA notice for alleged trademark infringement is just plain wrong, although various GoPro reps' insistence that the trademark infringement includes "images" most likely explains the existence of this half-copyright, half-trademark aberration.

However, the most probable explanation for this IP circus is probably contained in this blog post from last November, which details the author's brief altercation with Patrick Hayes and Woodman Labs over a parked domain containing the word "gopro." The letter he received accused him of "domain infringement," and while the tone of the letter was generally cordial, Patrick Hayes made the assumption that any registration of the term "gopro" could only be related to Woodman Labs' products.

GoPro does not authorize any of its resellers (or anyone else) to use “GoPro” or “HERO” in domain names. Your registration of goprodivemaster.com is unfortunately in direct violation of this policy. We understand that your intention is simply to sell and promote our products, but GoPro cannot risk misleading customers into believing that they are interacting directly with GoPro when they are engaging with your website or your organization. The use of our trademark terms in your business name may cause confusion, and is prohibited under international trademark law.

Even if the domain redirects to another site, this is not a permissible use of our brand terms.

Please understand: GoPro has spent years building its brand name—only the company itself is legally represented as “GoPro” or the manufacturer of the “HERO” line of cameras. We need you to kindly discontinue the use of our registered/trademarked name as soon as possible.

The author points out that his parked domain had nothing to do with GoPro or its cameras. He also points out that this issue will certainly surface again, considering the Professional Association of Underwater Instructors uses the term quite often in relation to its instructor development centers. Additionally, he did a little detective work and checked out the WHOIS information on the email address and found the domain was associated with MarkMonitor. So, it appears GoPro is outsourcing its IP protection to a company that seems to take a pray-and-spray approach to takedown notices.

Quite possibly it takes little more than having the word "gopro" appear in a URL (like the review above) to summon the bot-fury of MarkMonitor and Patrick Hayes, "Brand Manager." This explains the bizarre trademark claims and the incomprehensible takedown of a positive review. If this is indeed the case, GoPro is probably considering taking the job back in-house, seeing as its reputation is being damaged further with each retelling of this unfortunate saga.

UPDATE: GoPro's Twitter account claims that five other URLs were included in the takedown notice, but were scrubbed by DigitalRev prior to publishing. However, it has not posted the unedited version for verification.

Filed Under: cameras, copyright, dmca, reviews, trademark
Companies: gopro, markmonitor

DailyDirt: Birds Do The Darndest Things

from the urls-we-dig-up dept

It's fascinating to watch birds, not just because birds can fly, but also because some birds are incredibly intelligent and can perform some pretty cool tricks. If you can step away from playing with Angry Birds for a bit, watch a few of these much calmer bird videos.

• A flock of starlings is called a murmuration -- and when a large group of these birds swarms around, there's a really cool "phase transition" effect. Thankfully, these are birds and not killer bee formations.... [url]
• Crows can use a vending machine and create tools without much training. Don't make crows angry, because crows could plot their revenge -- and also teach their kids to get back at us. [url]
• Earthflight is a series of videos featuring birds from all over the world. The bird's eye view of South America looks like they put a GoPro helmet on a condor. [url]
• To discover more interesting biological curiosities, check out what's currently floating around the StumbleUpon universe. [url]  

By the way, StumbleUpon can recommend some good Techdirt articles, too.

Filed Under: birds, crows, earthflight, intelligence, murmuration, smart animals, starlings
Companies: gopro