Harvey Weinstein's 'Hang 'Em First' Approach To Piracy Hits All The Wrong Suspects

from the research-not-his-strong-suit? dept

I've heard enough stories about the legendary film producers Harvey and Bob Weinstein to recognize that they're known as being characters around Hollywood -- and sometimes are known to make some quirky decisions. In a recent edition of Kevin Smith's Smoviemakers podcast, they discuss how the Weinsteins knew they had a terrible movie in Dracula 2000 but released it anyway because "it's called Dracula 2000."

So, somehow it doesn't surprise me that Harvey Weinstein recently complained publicly about piracy -- but seemed confused and ignorant about who to blame. His main target: the tech industry providing him all the tools to get into the 21st century. But, he seems determined to stay in the past -- and live in a world of ignorance. It's as if he's heard a few of the MPAA talking points, as well as some of the more hysterically misguided anti-piracy rants online... and synthesized them into the ultimate in clueless rants:

Hollywood power player Harvey Weinstein has urged Big Content to take a “hang ‘em first and talk about it later” stance when it comes to piracy.

Right, because when you're ignorant and pointing the finger at innocent players, it's always better to kill first and realize you're wrong later.

Keynoting at the BFI London Film Festival, he railed against the online industries' approach to piracy, and slammed Apple and Google for “getting paid, not the actors.”

On what is he basing this? Both Apple and Google offer the ability to pay for movies, via deals negotiated with Hollywood. If the actors aren't getting paid -- then perhaps it's the studios' fault, with their fun tricks and Hollywood accounting, whereby they set up neat shell companies, who the studios charge huge fees to, so that their movies are never technically "profitable" and residuals never have to be paid. It couldn't be that, could it? Perhaps the reason actors aren't getting paid is because the studios are taking the money that Google and Apple are giving them... and playing accounting tricks.

"I think we are being done a massive disservice by these companies," he said.

Let's see, these are two companies who have built the key pieces of the modern distribution system that allows them to better deliver movies to consumers, including with unique and new monetization options? That's a disservice? Well, I'll grant you, perhaps Harvey's right that they've done a disservice to studio bosses in that they've disrupted them. The business of the studio used to be to act as the gatekeeper on promotion, distribution and monetization of movies. But Apple, Google and others are changing things so that the studio heads have less control over the market -- and the filmmakers can actually go direct. No wonder he hates them.

“I think after the [US Presidential] election we need to rally filmmakers, content providers and musicians around the world as long as these companies [continue to make content available] under the guise of free Internet.”

Good luck with that. Besides, he seems very confused in thinking that it's Apple and Google that are somehow broadcasting his content for free. That's not the case, and you'd think someone with more than two seconds of experience with the internet would recognize that.

“I love it when these Internet dudes say to me, hey man; we just want to be 'content neutral.' Next time, I'll say sure, I'll get my tie dye shirt and come and sit in your billion dollar mansion in San Francisco or Silicon Valley for a while, soak it up," he quipped.

Really no need to comment on that one. He then praised France's HADOPI three strikes law and pretended to prove a point.

"If an Internet company steals content, they shut it down. And let me tell you, Apple France, Yahoo France or Google France, none of them have gone out of business."

Of course, that's not true at all. He's displaying his near total ignorance (yet again). All Hadopi does is send individuals (not companies) accused (not convicted) of uploading unauthorized content, letters warning them that their connections could be cut off (and after three of these, they can lose service). So, no, they don't "shut down" an internet company. It has nothing to do with that at all. Also, it's been a colossal failure. Even after Hadopi fudged the numbers to make their results look better there has been no increase in sales and the current government has declared Hadopi to be a failure and wants to cut its funding.

The fact that it has done nothing to increase sales is the key point. Since Harvey was talking about "getting actors paid" (a red herring, of course, but...), you'd think that he'd be a lot more concerned about whether or not the 3 strikes policy actually worked to get more people paid. It hasn't. So, if his concern is getting actors paid, Hadopi hasn't actually helped.

There are plenty of discussions to be had about how to deal with whatever challenges and opportunities the film business currently faces. But this wasn't one of them. Pointing the finger and blaming tech companies, even though they're not doing what he claims they're doing -- and then praising a failed law that hasn't done what he thought it had done -- is not productive at all. It just makes him look out of touch.

Filed Under: attacks, harvey weinstein, piracy
Companies: apple, google, yahoo

DailyDirt: Advertising Mistakes; Hilarity Ensues

from the urls-we-dig-up dept

Advertising is a tricky business. Not only do you not know where half your marketing budget goes, but it's possible to waste 100% of your advertising with an innocent mistake. It's tough to try to make funny and catchy ads, and not everyone has the same sense of humor. Here are just a few examples of some ads that have backfired.

• Automatically serving ads without a human editor to judge the appropriateness of the content can be a really bad idea -- especially when placing ads on news items. Yahoo News recently inserted ads for Express clothing on a news photo -- unfortunately the photo pictured a distraught man who survived an attack by Taliban militants. [url]
• KFC ran a commercial in the UK a few years ago that set a record for complaints -- because viewers thought it encouraged bad manners and mocked people with speech impediments. This commercial has held on to its record to this day, but there probably aren't many agencies vying for the title. [url]
• Pizza Hut knows its customers love pizza, but does a love of pizza correlate with disliking math? This commercial needs to show its work on how it arrived at its conclusion. [url]
• Kenneth Cole is trying to raise "awearness" with some edgy ad campaigns. But one of its billboards generated some backlash from teachers when it suggested that teachers' rights were at odds with student interests. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post.

Filed Under: ads, advertising, awearness, backlash, commercials, marketing, mistakes
Companies: express, kenneth cole, kfc, pizza hut, yahoo

Yahoo And Facebook Settle Patent Fight, But Damage To Yahoo's Reputation May Linger

from the scott-thompson's-legacy dept

Back in March, Yahoo made some news by suing Facebook for patent infringement. This was the first major initiative by new CEO Scott Thompson, who apparently was not only oblivious about why you shouldn't lie in your resume, but also completely clueless about how Silicon Valley views patent infringement claims as a sign of absolute weakness. It's a sign of a company that has ceased to innovate. The reaction was pretty loud... but was quickly drowned out by the furor over Thompson's resume, causing him to lose his job. Ross Levinsohn was put in his place, and it appears that his first major act of business was to settle the lawsuit without any money changing hands.

There's a cross-licensing deal as well as some vague claims of a "partnership." However, the details suggest the "partnership" is just a general agreement to try to work together. The licensing agreement involves about half of Yahoo's patents... but also a promise not to sue over the other half.

There were a bunch of patent lawyers -- and some clueless Wall St. types -- who cheered on the patent infringement lawsuit, because they view things in the ultimate short term: if you're not getting paid for your patents, then you're "leaving money on the table." Folks in Silicon Valley mostly know better. You don't build a successful long term strategy by suing other companies that it's going to make sense to work with in the future. You especially don't go patent crazy if you want to retain top engineering talent. This may be difficult for patent lawyers and Wall St. investors to understand, but playing for the long haul means recognizing that there's more than one move on the chess board, and attacking on every single play isn't a good strategy. The real question, though, is if the stink that was attached to Yahoo from this move lingers, or if the company is able to shake it off and just pin the blame on Thompson's brief and horrific tenure.

Filed Under: ross levinsohn, scott thompson, silicon valley
Companies: facebook, yahoo

Flickr Finally Realizes That Not All DMCA Takedowns Are Legit

from the about-freaking-time dept

A few months ago, we noted how in certain cases Flickr would completely delete images (and comments) when it received a DMCA takedown notice. That meant that even if the takedown was bogus -- as so many are -- after you contested the takedown and could put back the image, you probably lost everything else on that page. That's kind of ridiculous. As Jake Rome alerts us, Yahoo (owner of Flickr) finally realized that perhaps it should change its policy and, instead, put the targeted image in limbo to allow the uploader to contest the takedown:

We want to let you know that we have implemented a global change in the standard takedown process that will benefit the whole Flickr community going forward.

When a photo is removed from the site based on a notice of alleged copyright infringement, we will temporarily show a placeholder and the member will have an opportunity to respond before the image is made unavailable.

If the alleged copyright infringement is found to be fraudulent, the image in question will be restored, and the photopage will look like before.

It's really quite amazing that it took this long for Flickr to realize this was needed.

Filed Under: copyfraud, dmca, takedown
Companies: flickr, yahoo

Ongoing Patent Fights Mean Startups Are Now Wasting What Little Money They Have At The Patent Office

from the not-cool dept

Last week, I had the chance to chat with the General Counsel of a well known internet company -- not a "giant" one, but one you've almost certainly heard of -- and we got to discussing Twitter's new patent assignment agreement with its employees, and whether or not other tech companies would start offering the same thing. He was a bit skeptical, and pointed out that, even at a company the size of his (big enough to have a full time general counsel, for example) they had applied for exactly zero patents. He said he's tried, but none of the engineers at the company have any interest at all in patenting what they're working on (actually, in talking to someone else later on, I heard that the bigger issue is that some of the employees are thinking about ways to open source their work). Either way, the lawyer noted that, because of that, any patent assignment agreement was something of a waste of time. His company just wasn't interested.

Unfortunately, it appears that not all startups are working that way. With Yahoo's patent fight against Facebook getting so much attention these days (not to mention other big patent fights involving companies like Google, Apple, Microsoft, Oracle and others...), it seems that startups are (rather reluctantly) spending a lot more time (and money) at the Patent Office.

This is, to put it mildly, crazy. The two biggest scarce resources for startups are time and money. Throwing them away on getting patents is a huge waste, and it's main purpose is to act as insurance against failure or against jealousy over extreme success. Basically, most patents are completely useless. But if a company is failing, then perhaps it can sell off its patents. And, if a company is succeeding, then suddenly others will start suing it for patent infringement -- and the hope (rarely realized) is that having at least a few patents in the portfolio means that other practicing entities won't sue for fear of getting sued back (patent trolls are exempt from this, however).

It's really too bad that the state of the patent world today is such that are most innovative companies are basically forced to throw away time and money to apply for patents they never want to use.

One separate aside on this story. The article talks about the Twitter IPA agreement, and later quotes the founders of the startup Everyme as saying they support the IPA, but: "their first three apps were already with the U.S. Patent and Trademark Office by the time IPA was available, though, and they don’t plan to refile them." This sentence makes no sense. The IPA has nothing to do with the USPTO and the patent filing. It's merely a part of the assignment agreement, leaving some portion of control with the inventor. In fact, Twitter -- who does have some patents -- has said that it's using this agreement retroactively with patents that were applied for before the IPA existed. So there's no reason to refile the applications at all. In fact, the IPA is entirely separate from the actual patent application.

Filed Under: ipa, patent assignment, startups, uspto
Companies: apple, google, microsoft, oracle, twitter, yahoo

Yahoo Says Facebook's Countersuit Doesn't Count Since Facebook Bought Its Patents

from the um-what? dept

Yahoo has now responded to Facebook's patent countersuit, as the stupid and destructive nuclear war that Yahoo launched against Facebook out of spite and jealousy continues to expand. As you probably know by now, the incredibly desperate Yahoo sued Facebook (as it was laying off 2,000 employees), because it has no clue how to innovate any more, and decided the best course of action was to broadcast as loudly as possible to good software developers that they should work elsewhere (at least that seems to be the general interpretation of Yahoo's actions here in Silicon Valley). In response, Facebook hit back with a countersuit, claiming that Yahoo violated some of Facebook's patents.

As we noted at the time, most of the patents that Facebook was using in the counterclaims did not originate with Facebook, but were bought. Yahoo's response to Facebook's claims tries to make a big deal out of this, arguing that using such patents is not in "good faith."

In retaliation for Yahoo!'s good faith allegations of patent infringement, Facebook alleges infringement of ten patents as counterclaims. However, on information and belief, Facebook lacks a good faith basis for most, if not all, of its counterclaims, particularly those patents that it purchased from others.

Facebook purchased eight patents from non-practicing entities: two patents were purchased from "IPG Electronics 503 Limited," a San Diego-based patent aggregator; two patents were purchased from "Cheah Intellectual Property Licensing," a California-based patent holding company; one patent was purchased from "Right Point LLC," a Texas-based patent aggregator; and three patents were purchased from New York University's intellectual property licensing department. All eight of these patents were purchased by Facebook in the past five months, and several of these patents were purchased (independent of any separate technology acquisition or merger) after Yahoo! filed its complaint in this action. On information and belief, many, if not all, of these patents were acquired by Facebook for purposes of retaliation against Yahoo! in this case.

No employee or officer of Facebook or any affiliated company conceived of, reduced to practice, or developed the alleged inventions claimed in the eight patents acquired from non-practicing entities. In fact, the applications for many of these patents predate Facebook itself.

While all of those do highlight just how silly some of our patent system is, I have no idea what it has to do with the law. There's nothing in the law that says it's not in "good faith" to buy patents to assert against others. Though, amusingly, perhaps if Yahoo! wins this argument it could set a bizarre precedent that limits the usefulness of purchased patents -- but I can't see that happening.

Yahoo!'s argument is full of similarly bizarre assertions. For example, Yahoo! seems to have its feelings hurt that Facebook didn't contact Yahoo! before filing the counterclaims. While I can understand how it's obnoxious to use before reaching out under normal circumstances, Yahoo! seems to ignore that Yahoo! sued Facebook first. Then it gets upset that Facebook doesn't want to be all friendly? Really?!?

Yahoo! also claims that the parts of its business that Facebook thinks infringes are areas where the details are secret, so the only way that Facebook would know that Yahoo! infringed is if it "unlawfully acquired Yahoo! confidential business information." Because of this, Yahoo! actually goes so far as to ask for sanctions against Facebook's lawyers, which is a pretty extreme move in a case like this.

Yahoo! also goes into great detail to raise some procedural questions about the granting of some of the patents that Facebook is using in counterclaims. In other words, it's trying to find absolutely anything to hit back with.

Suffice it to say there is no love lost between these two companies at this point.

Oh yeah, just for fun, Yahoo! adds two more patent infringement claims of its own back at Facebook:

• US patent 7,933,903: System and method to determine the validity of and interaction on a network
• US patent 7,698,315: System and method allowing advertisers to manage search listings in a pay for placement search system using grouping

What isn't explained in the filing? How any of this actually helps make Yahoo! relevant again.

Filed Under: patent war
Companies: facebook, yahoo

Facebook Has Been Sued Five Times For Patent Infringement In Two Months Since Filing For Its IPO

from the paddle-paddle dept

We recently wrote about a Rob "CmdrTaco" Malda column for the Washington Post, which suggested that getting sued for patent infringement was like frat hazing for tech companies that file to go public. If that's true, then it appears that Facebook is taking its paddle whacks from quite a few upper classmen. In a larger report about the Facebook/Yahoo patent battle, M-CAM mentions as an aside that Facebook has been sued five times for patent infringement in just the two months since it filed for the IPO:

Patent infringement lawsuits can be problematic during a company's quiet period. In the two months since filing for its IPO in February 2012, Facebook has been the target of five such suits: three from non-operating entities, one from Mitel, and one from Yahoo!.

This isn't a coincidence. This is about companies hoping to cash in by filing questionable patent lawsuits at a very inconvenient time for Facebook. These are companies who know the history of similar lawsuits, where many companies feel compelled to "settle" at almost any cost, due to pressure from Wall Street investors who don't understand patent battles, and fear that any prolonged fight is too costly. So companies are sometimes willing to pay through the nose, not because there's any validity to the lawsuits, but because the massive influx of cash from a successful IPO is worth a lot more than fighting the patent lawsuit. In fact, I wouldn't be surprised to see a few more trolls try to jump in before the IPO gets off the ground.

Filed Under: cmdrtaco, hazing, ipo
Companies: facebook, yahoo

Facebook Hits Back Hard On Yahoo Patent Claims, Countersues Over Its Own Patents: Nuclear War Begins

from the what-a-waste dept

It's not surprising, after Yahoo sued Facebook and Facebook stocked up on a bunch more patents, that Facebook would respond with guns blazing at Yahoo for the lawsuit. As we've been arguing for the better part of a decade, in many cases, patents are basically just nuclear stockpiling, where companies get a ton of patents to hopefully ward off strikes from competitors. But every so often, nuclear war breaks out. It seems like that's the case here.

Facebook hasn't just responded to Yahoo's claims by insisting that they're totally and completely bogus, it's also countersuing over a bunch of its own patents. Most of Facebook's response to Yahoo's claims are basically that it "denies the allegations" made by Yahoo. Sometimes, however, it takes some potshots.

Facebook admits that messaging and privacy are offered as options on certain websites. Facebook denies that “[w]ithout Yahoo!’s achievements, websites such as Facebook would not enjoy repeat visitors or substantial advertising revenue.” Facebook further denies that the functions identified in this paragraph of the Complaint involved any innovation by Yahoo!.

For defenses, it basically brings out every possible argument. It says it didn't infringe. It says the patents are invalid. Those are pretty typical. However, Facebook also points out that Yahoo sat on these patents for ages and did nothing with them, so it argues that the doctrine of laches bars the claims (basically saying you can't wait forever before suing) and similarly that any damages would be limited by the amount of time that Yahoo sat on these patents and did nothing. They're also using Section 287 of the patent law to argue that Yahoo's failure to "mark" their inventions as patented severely limits or bars any damages. Basically, every possible defense shows up.

And then come the counterclaims on 10 specific patents, listed here:

• Patent 7,827,208: Generating a feed of stories personalized for members of a social network
• Patent 7,945,653: Tagging digital media
• Patent 6,288,717: Headline posting algorithm
• Patent 6,216,133: Method for enabling a user to fetch a specific information item from a set of information items, and a system for carrying out such a method
• Patent 6,411,949: Customizing database information for presentation with media selections
• Patent 6,236,978: System and method for dynamic profiling of users in one-to-one applications
• Patent 7,603,331: System and method for dynamic profiling of users in one-to-one applications and for validating user rules.
• Patent 8,103,611: Architectures, systems, apparatus, methods, and computer-readable medium for providing recommendations to users and applications using multidimensional data
• Patent 8,005,896: System for controlled distribution of user profiles over a network
• Patent 8,150,913: System for controlled distribution of user profiles over a network

It's worth noting that only the first two of those patents initially started life with Facebook. The others it picked up along the way. Though, it does appear as though that last patent was issued... today. Overall, these patents look just about as silly as most of the ones that Yahoo used to sue in the first place, but that's the nature of patents these days (especially software patents). Facebook is using what it has to fight back against Yahoo, but the whole thing seems like an incredibly silly waste of time, money and resources for both companies.

Filed Under: counterclaim, patent war, stockpiling
Companies: facebook, yahoo

AOL Won't Go Full Yahoo Patent Troll... But May Sell Patents To A Patent Troll

from the patents-are-dangerous-weapons dept

It appears that AOL isn't going down the Yahoo patent trolling path directly, but it is looking to sell off its patent portfolio -- meaning they may end up in the hands of trolls anyway. You can understand why AOL is doing this. It's been struggling to find its footing for quite some time now, and patents are selling for crazy amounts these days. So they get sold... and abused to sue others. It's the sad reality of the patent system these days. While it's nice to see that AOL isn't doing a full Yahoo, the selling of a patent portfolio to the highest bidder can be just as bad in the long run.

Filed Under: patent trolling, patents, selling patents
Companies: aol, yahoo