Mark Cuban Agrees: Independent Invention Is A Sign Of Obviousness; And Should Kill Patents

from the excellent dept

For years, we've talked about the idea of an independent inventor defense for those accused of patent infringement -- which, contrary to the claims of some patent attorneys, is totally feasible -- and that idea has received some traction. However, we've also argued that things should go even further, and that if there is evidence of multiple independent inventions of the same concepts that it is a sign of obviousness, and all such patents should be rejected -- since patents are not allowed on inventions that are considered "obvious" to those who are "skilled in the art." Unfortunately, we've seen less support for that specific idea -- but perhaps that's changing.

Mark Cuban recently gave an interview to TechCrunch in which he discusses his rationale for giving EFF $250,000 to create the "Mark Cuban Chair to Eliminate Stupid Patents." When asked about how he would fix the patent system, he names a few popular ideas, like getting rid of software patents, requiring that the invention be put into practice, but he also (repeatedly) talks up how independent invention should be a sign of obviousness. A few snippets:

I would also like to see a "cold room" exception. If you can show you invented the idea using completely independent thought, you don't violate the patent and the patent is invalidated.

Remember back in the 80s when AMD/Intel and others would clone each other and it was permissible because they came up with the features and functions completely independently? The same should apply to patents. If you didn't copy an idea, you came up with it on your own, then the idea should not have been patented in the first place. If multiple people come up with the same idea independently, that is the definition of obvious.

You should be given the right to your idea if you come up with it independently and any patents in place for that idea should be invalidated.

[...]

Independently derived ideas that are turned into products and can prove they are independently derived (Again, if multiple people come up with the same idea independent of each other, that should be as definite as it is obvious, and obvious cannot be patented), then it can not be patented, and all patents for those ideas are declared invalid.

It's great to see that this idea may finally be getting some traction, as it could have a big impact on fixing many of the most significant problems with today's patent system.

Filed Under: independent invention, mark cuban, obviousness, patents

Greatest Legal Filing Ever? Mark Cuban Files Photo Of Mavs Championship In Response To Charges He Mismanaged The Team

from the slam-dunk dept

In what may be one of the best legal filings I've ever seen, it appears that Dallas Mavericks owner Mark Cuban couldn't resist filing a somewhat snarky motion for summary judgment in a case brought against him last year by (5% owner) Ross Perot Jr., claiming that Cuban had mismanaged the basketball team, and that it had caused the club to "lose substantial investment value." Obviously, if you pay attention at all to the NBA, you would know that the Mavericks recently beat the Miami Heat to win the Championship. The filing makes sure that's clear, by always referring to the team as "the World Champion Dallas Mavericks." The key page of the filing is page two. I've got the whole thing embedded below, but here's the key part: When asked about the use of "the World Champion Dallas Mavericks" eight times in the four page filing, Cuban's lawyer explained: "We put that in there eight times because nine was too many, and seven wasn't enough." This case seems like a slam dunk.

Filed Under: dallas mavericks, legal filings, mark cuban, ross perot jr.
Companies: world champion dallas mavericks

College Football Playoffs Patented?!?; Mark Cuban Warned Not To Infringe

from the patent-madness dept

For years, fans of college football have been clamoring for some sort of playoff system, rather than the messy rankings and bowl system that currently exists. It's a topic that people can get pretty passionate about. Even President Obama has weighed in on the subject arguing for a playoff system. I'm not a college football fan, so I don't really care one way or the other what happens, but there is a little tidbit in the latest discussion that I find interesting. Jarrett Streebin alerts us to the news that Mark Cuban is pushing hard to create a college football playoff system, which normally wouldn't be of that much interest to folks around here, except in Cuban's blog post about the topic, he posts an anonymous email from someone who claims to hold a patent on a football playoff system. Here's an excerpt from the email that Cuban posted:

My advise is, don't waste your money. There are three perfected alternatives to the BCS. I own one, a guy with CBS owns another and a guy in Arizona owns the third. By that, I don't mean the screw-ball ideas you see on the internet, but actual branded properties.

[... a bunch of stuff skipped, some by me, and some by Cuban ...]

You should also consider that the playoffs are already owned by someone, as in, the patent for resolving the FBS championship by way of a playoff was issued long ago. It's called a method patent, so be careful not to infringe it.

Anyway, if you want to know who owns assets in this field, let me know. I can put you in touch with one of my attorneys who can let you know what you're in for. It's much more complex that it's commonly understood to be.

Ownership of a sporting playoff system? Seriously, USPTO? Cuban uses this as an opportunity to point out the ridiculousness of patents and how they're abused by people "who have no intention of solving a problem or building a business but want to get paid by those that do." It's a nice little rant, but no different than what you've probably read here on Techdirt a hundred times.

What interested me was this idea that the concept of college football playoffs could be patented. It looks like, from the email, that the guy did not reveal the patent. If anyone knows what it is, please share. I went looking myself, and have found two possibilities -- one an issued patent, and another that's still in the application stage.

The issued patent (6,053,823 -- full patent embedded below) is held by Marc Mathews and was issued in 2000. The patent indicates that Mathews lives in Arizona, so he's likely to be "the third guy" mentioned above. The patent application (application #11/327,584 -- full application embedded below) was filed by three guys: Edward Baxter Williams, Tyler James Williams and Edgar Richard Williams Jr., all from New Hampshire. Perhaps one of them emailed Cuban. That patent application is especially odd, as it looks as though the "abstract" is for something entirely different. The application is supposedly for "a flex schedule playoff system" and the claims definitely discuss that -- but the abstract appears to be for "a protective fender is provided for use on a pontoon boat." Not quite who screwed up there, but someone clearly did.

Either way, if you wanted to see how one might go around patenting the concept of a football playoff system, go ahead and dig into the patents. I'm just going to sit back and wonder what the USPTO was thinking when it approved that first one.

Filed Under: college football, football, mark cuban, ncaa, patents, playoffs

Mark Cuban: It's Okay For Broadcasters To Block Access Based On Browsers, Because They're Making Billions

from the ok,-let's-tackle-this-one dept

Like many tech sites, we recently wrote about the fact that the various TV networks were discriminating based on the browser, blocking access to Google TV's browser, because they don't want people to watch the shows they're already giving away for free online on their TV (even though it's easy enough to just hook up a computer to a TV and watch via your preferred browser of choice). Marshall Kirkpatrick pointed us to the fact that Mark Cuban decided to respond to Newteevee's article on the subject, in which the author of the original article reasonably pointed out that this was a braindead strategy by the networks, who were shooting themselves in the foot.

Cuban called this analysis "moronic," noting that the networks are making billions in fees from cable and satellite companies, and why should they put that at risk:

What is at stake is the financial relationships between broadcast networks and tv providers and broadcast networks and their affiliates.

Broadcast nets are now getting BILLIONS of dollars from TV providers. Money they didnt get just 3 years ago. For some, just 2 years ago.

So in the last 24 months they take billions from tv providers (directv,comcast, etc) and you think its smart to give those customers of their the finger and offer the same product online ?

thats moronic

Now, that's a very similar argument to the one made by venture capitalist Bill Gurley earlier this year, who suggested that TV would beat the internet because of the amount of money the networks were making from cable and satellite providers. The amounts were just too high.

And while Mark Cuban is a billionaire owner of a TV network, I think he's blinded by his own prejudices here. Yes, it's true that the networks are making mad cash from cable and satellite TV providers. But the fallacy is believing that these numbers are sustainable and ignoring consumer preference. While the TV folks are living in a world of denial that people won't shift to using the internet to watch TV, consumers are actually moving away from expensive TV deals, and the more they do that, the less willing cable and satellite providers will be to pay huge dollar amounts for programming. The billions of dollars are a blip. A hugely profitable, impossible-to-want-to-lose blip but a blip nonetheless. It's not sustainable because it goes against what consumers want, and in the long term, it'll go away. The reason the billions of dollars are there is because consumers paid that money, but they're increasingly unhappy with what they're getting for it, and they'll increasingly seek alternatives, and then that billion dollars goes elsewhere.

In a separate blog post, Cuban complains that it's "the dumbest idea ever" that networks should give Google its shows for free. Except, um, that shows a fundamental misunderstanding of the situation. Google's not taking the shows. Google is providing a browser to the internet. The same thing that you could do with Firefox if you hooked up your computer to your TV. So, yes, for now the folks in the TV world want to milk it, but at some point they need to realize that the more they do to piss off their viewers, the more trouble they'll be in down the road.

Filed Under: blocking, browsers, google tv, mark cuban

Mark Cuban Tells Newspapers To Pull Out Of Google... As He Invests In Competitors?

from the hypocrisy-in-action dept

Over the last few months my post about all the aggregator sites owned by Rupert Murdoch as he was complaining about aggregators "stealing" his traffic has received a fair bit of attention. Yet it hasn't stopped similar hypocrisy from Murdoch and others. This week, Mark Cuban got a ton of attention for his silly claims that Google is a vampire and media publications should all opt-out. Cuban is a smart guy and has to know that this is so wrong that it's laughable, leading some people to wonder if he's pulling some sort of trick on these media publications.

Danny Sullivan comes to the rescue by pointing out that while Cuban is telling sites that Google traffic is worthless, he's invested in Mahalo, an aggregator site that lives off of Google traffic and still tries to do some similar aggregation efforts, such as IceRocket.com (which is a direct competitor to Google News... though no one uses it). Meanwhile, an old interview dug up by Michael Arrington has Cuban talking about how much he'd like to invest in TechMeme -- a similar aggregator. Clearly, Cuban is playing some sort of trick on media companies.

The thing that I can't figure out is what sort of trick he's playing. He's simply wrong about Google traffic being worth nothing. While much of Google traffic might not convert to regular users, enough of them do to matter. But, even more to the point, we've found that the ads shown on archive articles (i.e., those found via Google searches) tend to get a much higher number of clicks than those shown on front page articles. And it's pretty obvious why once you think about it. People coming from Google are searching for something -- and so they'll look around your whole page, meaning that they don't suffer from the same sort of ad blindness that regular visitors do.

Sullivan posits a conspiracy theory that even he doesn't believe in, that by getting news publishers to pull out of Google News it could help Cuban's investments, but even he admits that seems pretty far-fetched. So is Cuban just really really confused or is he playing at some game?

Filed Under: aggregators, hypocrisy, mark cuban, vampires
Companies: google, icerocket, mahalo, techmeme

Is Murdoch's Move Against Google Really About Twitter And Facebook?

from the no,-not-even-close dept

I'm a big believer in the idea that "earned media" or "earned links" are increasingly important online. That's the idea that growing numbers of people are relying on news links that are being passed to them via friends on social networks like Twitter and Facebook. It's about recognizing that more and more often news stories "find people" rather than the other way around. That is, people are increasingly getting links from friends, acquaintances and colleagues, rather than going searching for the news. And those "earned" links or "passed links" are quite valuable because friends are more likely to trust and pay attention to what is personally sent to them, rather than what's just on the front page of a news site.

However, even given all of that, I'm not sure I buy Mark Cuban's explanation for Rupert Murdoch and his plan to stop Google from indexing his sites. Cuban says that it's all about this recognition that such earned links are becoming so important these days, and Murdoch realizes that links from Twitter and Facebook are growing in value, whereas links from Google have little value. To be honest, I'd be surprised if Murdoch had thought through it that carefully, but more to the point, I'm not sure I believe the full premise. Yes, those links are valuable, but they need to start somewhere, and one of the ways they start is from news junkies using aggregators like Google News to find the news and start passing them around. Blocking that starting process makes little sense. On top of that, even when I'm passed a link, I'll often use Google News or other sites to dig deeper. Taking News Corp. sites out of the picture doesn't help at all. And, finally, while I keep hearing about sites getting so much more traffic from such passed links these days, I can say with authority that on Techdirt, they're still a tiny fraction of the traffic we get from Google.

So, yes, directly passed links from friends or colleagues are valuable and important, but it's a part of a wider ecosystem of news sharing that Google News and other aggregators are most certainly a large part of. Saying that blocking Google News makes sense because of things like Twitter and Facebook ignores how Google News plays into those links even being on Twitter and Facebook.

Filed Under: aggregators, earned links, earned media, journalism, mark cuban, passed links, rupert murdoch
Companies: facebook, google, news corp., twitter

Mark Cuban Remains Confused About Free

from the wait,-what?!? dept

Last week, in writing my review of Chris Anderson's new book, Free, I noted that Mark Cuban's initial critique of it was quite misguided, in that he made the quick (and flat-out incorrect) assumption that the story of "free" means that "everything is free," and thus it ignores costs. That's simply not true, and thus represents a big strawman that ignores the actual point of the book (though, to be fair to Cuban, it's a very common strawman found in many of the arguments against the book). Cuban has now taken a second shot at critiquing free, and I'd argue it's at least more interesting on a first pass, pointing out: when you succeed with Free, you are going to die by Free. That sounds like a worthwhile read, though I find it hard to believe. Here's the meat of Cuban's argument:

Lets look at the rule that eventually KILLS all freemium based content plays:

There will always be a company that replaces you. At some point your BlackSwan competitor will appear and they will kick your ass. Their product will be better or more interesting or just better marketed than yours, and it also will be free. They will be Facebook to your Myspace, or Myspace to your Friendster or Google to your Yahoo. You get the point. Someone out there with a better idea will raise a bunch of money, give it away for free, build scale and charge less to reach the audience. Or will be differentiated enough, and important enough to the audience to maybe even charge more. Who knows. But they will kick your ass and you will be in trouble.

I don't think anyone denies any of that. Except... here's the main problem that kills Cuban's point: this applies to any company, whether it uses free or not. What he describes is not unique to free. It's the story any company faces, and we're seeing how the companies that have "embraced" free have acted as that sort of "black swan" competitor to the companies that haven't. Look at what is happening in the recording industry or the newspaper industry, where they're struggling to understand new models.

Cuban tries to suggest that this is something special about the "free" space, but I can't fathom why it's any different than any company:

Its not that they can’t make money offering free. They can , have and will. The problem is that they know that its literally impossible to be the king of the mountain forever. But that won’t stop them from trying. And that is exactly what will kill them.

"Free" is just a price. If the cost of your product is $3 and someone figures out how to build a competitor for $1 (or free!) then you face the same problem. In fact, I'd argue you're better positioned to adjust if you understand the basic concepts behind free (which Cuban either doesn't, or he's bluffing for some odd reason), because it suggests you know what parts of the business to leverage as a resource, and which to charge for. So, I'm confused. What about what Cuban says is specific to "free" business models and why can't those who embrace "free" adapt if he seems to believe that others can?

Filed Under: competition, free, mark cuban

Copyright And Libel Questions Hit The Twitterverse

from the you-knew-this-was-coming... dept

A few weeks back, someone pointed me to a Twitter message where one Twitter user was (jokingly) accusing another of copyright infringement for repeating a message. While the situation was amusing, you knew it was only a matter of time until the question became more serious. Mark Cuban put up a blog post this weekend asking about the copyrightability of Twitter messages. His question revolves around whether or not it's copyright infringement for someone like ESPN to repeat what he wrote in a Twitter message, which he would have preferred they didn't quote.

I'm certainly no copyright lawyer -- so perhaps some could chime in in the comments -- but it seems like there would be two issues here. The first is whether or not the content is covered by copyright -- and, for most messages the answer would probably be yes (there would need to be some sort of creative element to the messages to make that happen, so a simple "hi" or "thanks" or whatever might not cut it). But, the more important question then would be whether or not ESPN could quote the Twitter message. And, there, the answer is almost certainly, yes, they could, just as they could quote something you wrote in a blog post.

If you ran down the fair use test, it's difficult to see how a public Twitter message wouldn't easily qualify. If it's ESPN, it would be for commercial use, but not in the sense of "selling" the content. Plus, it's for journalistic reasons, which is often given a fair use pass. Second is the nature of the copyrighted work -- which, being a Twitter message, I would guess most judges would assume it's expected that the content can (or even should) be repeated. The third test fails, since it would be the entire message, but the fourth test, on "the effect on the potential market for the copyrighted work" would almost certainly point towards fair use. Since the four factors aren't weighted equally, I think the only clear "failure" is the weakest and least important of the four tests (how much of the content was used -- which is way outweighed by the other factors), it's hard to see how this isn't a perfectly reasonable use.

But, of course, with copyright designed for a world before everyone had a printing press, we're going to come across more such questions in the future -- and I'm sure there will be a few lawsuits along the way.

For example... while it's not a copyright lawsuit, Courtney Love has been sued for libel due to her Twitter messages. Apparently, she's been Tweeting in anger against her former fashion designer -- Dawn Simorangkir -- and Simorangkir is now suing for defamation. The messages themselves may prove to be defamatory (assuming they're not true), calling the woman:

a "nasty, lying, hosebag thief"; having "a history of dealing cocaine"; having "lost all custody of her child"; and, being guilty of "assault and burglary"

There's also the message claiming that the designer would be "hunted til your [sic] dead," which seems more like a threat than libelous. Of course, one could argue that the legal filing by the designer is also potentially libelous, stating:

"Whether caused by drug-induced psychosis, a warped understanding of reality, or the belief that money and fame allow her to disregard the law, Love has embarked on what is nothing short of an obsessive and delusional crusade to destroy Simorangkir's reputation and her livelihood."

I would imagine that, if Courtney Love were not in a drug-induced psychosis, she might find that claim objectionable.

Still, you have to wonder if there were a better way to handle this. For example, filing the lawsuit seems to call more attention to the falling out between the two, perhaps leading many more people who might be interested in Simorangkir's work to think twice. While Love, as a celebrity, does have a certain reach, it seems like Simorangkir could better respond just by laying out the facts of the situation and telling her side of the story in a calm and clear manner, which compared to some rantings on Twitter would probably give people a good counterbalance without needing to involve the courts.

Either way, as these two stories demonstrate, we're in for a long series of lawsuits and legal threats having to do with Twitter messages.

Filed Under: copyright, courtney love, libel, mark cuban, microblogging
Companies: twitter

Mark Cuban Declares War On Free TV Online... But Misses Out On The Economics

from the protectionism-doesn't-work dept

There's a myth out there among some newspapers folks that "if only" the newspapers hadn't committed the "original sin" of putting content online for free, the newspapers wouldn't be facing difficulties these days. It's the kind of story that sounds good if you don't look too closely at the details. Plenty of newspapers did try to charge and almost all of them failed. People were never that interested in paying for news online, and plenty of new sources of news were popping up for free online anyway. Charging was a dead-end model from the beginning -- and to understand why, all you need to do is understand a little basic economics concerning the difference between infinite and scarce goods.

However, it looks like Mark Cuban believes in that "original sin" concept, and is posting a series of blog posts to try to prevent TV networks from making the same "mistake." It started with the claim that anyone who thinks TV is going a la carte online is crazy, because the "content companies" will never give up the fees they earn from the networks. After a bunch of folks challenged him on this, Cuban added a second post asking a bunch of questions, but which did little to actually answer his critics. He (like NBC Universal execs) laughs off the "threat" of people switching to all online access to TV content, noting that very few people have done so. This surprises me, since you'd think that Cuban would be familiar enough with Clayton Christensen's work to know that just because there are only a few early adopters (and the quality isn't as good) that it doesn't mean that it's not a potential threat. In fact, those questions are basically the de facto list of questions that an "incumbent" player tends to ask when facing a Christensen-style "innovator's dilemma" just before the upstart technology really begins to hurt the legacy business.

From there, however, it just gets silly. Cuban tries to stir up some sort of moral outrage among cable subscribers, exhorting them to call their cable companies and satellite providers demanding that they not allow any TV content online for free (as if it's their choice). His reasoning?

Those of us who enjoy this matter of life should be completely outraged that there are those who are leeching off the money we pay to enjoy tv. Our check goes to pay our bill. The money then goes to pay for the tv network, which in turn goes to pay for the content. Its a system that works.

Like any good system, there are those that want to have their cake and eat it to. The content we pay for ? They want it for free. We pay for it, they want it for free.

How is that fair ? Where is the justice ?

We pay for the content. We should be able to get it where we want it, and when we want it. Those who want it for free ? They should pay too.

Yes, and newspapers shouldn't be online for free. And music shouldn't be online for free. But they are and they will continue to be. Why? Because of those basic economics. As Saul Hansell at the NY Times points out, this is the nature of competition. Sure, everyone would love to keep getting paid, but some enterprising content company is going to recognize that getting more attention is a lot more valuable in the long run than keeping its content locked up on cable networks. Those content providers are going to realize that by breaking free and getting the content out there, they're able to stand out against those who lock up their content. They're going to be able to score more viewers and from that, more advertising dollars. And that will hurt those who keep their content locked up -- so, they'll be forced to free up their content as well. It's just basic economics.

Oh, and as for the whole "moral outrage" bit -- it's difficult to see how people who are already pretty pissed off about constantly rising cable TV prices are suddenly going to rise up and tell the cable companies to keep on charging them higher prices by locking up content. No. It seems likely that most of those folks are pretty excited about the idea that some of that content might go free, and can actually push down cable TV rates.

Filed Under: business models, cable, economics, free tv, mark cuban, tv