Should Inventors Take Responsibility When Their Patents End Up In Troll Suits?

from the perhaps-not...-but... dept

There was a recent post on the Patent Examiner blog about yet another patent troll who's been suing a ton of companies with a variety of patents. Among recent lawsuits there was one against General Motors, Ford, Mercedes-Benz, BMW of North America, Rolls-Royce, Hyundai, KIA and ATX Group for using GPS systems to track cars, and two more against AT&T, Verizon, Sprint Nextel, MetroPCS, T-Mobile and others over patents 7,852,995 and 7,860,225, titled “Method and apparatus for selectively providing messages in telecommunications systems."

As with many troll patents, the troll company has zero relationship with the actual inventor on the patents. The author of the article, Gregory Thomas, tracked down the inventor on those last two patents, one Jonathan Streitzel, an entrepreneur and inventor. When asked about these lawsuits, Streitzel pointed out:

“I don’t know the details, I just invent shit.”

And, to be clear, this is a perfectly reasonable response. At some point he sold off the patents. Neither Streitzel nor his attorney are willing to talk about the details, since apparently there was some sort of "confidentiality agreement," which is all too standard in selling patents to trolling operations these days. But, at some point, should the inventors at least take on some responsibility if their patents are being used to shake down companies and stifle innovation?

There's obviously no legal responsibility. But it does make me wonder if there's an ethical issue. We hear all the time from entrepreneurs who go out and patent things because they feel they have to: either some of their investors insist that they need patents or they do so to start stockpiling a defensive patent portfolio in case some practicing entity hits them with a patent lawsuit. They all seem to admit that it's a "necessary evil," and say that they'll never assert those patents themselves. But... at some point, the patents get sold. Often a company fails and the patents are a remaining asset. Or it just becomes too lucrative to not sell the patents.

And, while it's not clear if that happened in the situation above with Strietzel, we hear all the time about entrepreneurs who unwillingly got patents, only to later discover those patents were being used in trolling suits. Should those inventors speak up?

Filed Under: patents, trolls

Trolls Don't Need To Be Anonymous, And Not All Anonymous People Are Trolls

from the setting-the-record-straight dept

Julian Sanchez points us to the latest in a series of ridiculously uninformed editorials whining about the evils of anonymity online. This one is by Gayle Falkenthal in the Washington Times. The premise, apparently, is that anonymity only made sense in the past, when the internet was "immature."

When the Internet was new, its nature bred the protective philosophy of embracing anonymity as a counterweight to the potential for sacrificing some of your personal privacy to participate.

The Internet has matured. Anonymity has become counterproductive and even damaging. If you’re willing to stand up and render a public opinion, you should reveal your identity. The time has come to limit the ability of people to remain anonymous.

That first sentence makes no sense. Anonymity didn't just spring up because of the internet. And it had nothing to do with being a "counterweight to the potential for sacrificing some of your personal privacy to participate." That's someone making up history. As for anonymity being counterproductive? I think we can go with a big, fat [citation needed] and move on. And, by moving on, I mean moving on to more broad brush stereotypes that have little basis in reality:

Early adopters were iconoclasts, rule breakers and social misfits. Nerds targeted in the real world by bullies could push back without facing any personal risk. Anonymity plus anger bred boldness in the form of bad behavior. And so, the Troll was born.

This bugs me, because it's been discussed time and time again. We've pointed out that some of our most trollish commenters are not anonymous, while some of our best commenters are anonymous. Can trollish commenters be anonymous? Yes. Does that mean anonymity is at fault? No.

Anonymous commenting should become a thing of the past. Anonymity allows trolls to breed. Let’s admit it, chalk it up to being a good idea that failed, and end the practice.

It's only failed if you have a bad community, don't engage with your community and let the trolls take over. In our experience, anonymity has made it easier for lots of people to counteract trollish comments, provide facts and data, and to keep our comments vibrant and interesting.

Those arguing for anonymity claim that free speech will be squelched because individuals might fear reprisals at work or among friends and family when their personal opinions are made public. Some speech doesn’t deserve a forum. Anonymity creates real and lasting harm when people are hit with false accusations and name-calling attacks. There is no way to tell if a damning restaurant review is written by a competitor or disgruntled employee.

That's not an issue of anonymity. If people are hit with false accusations, there are defamation laws on the books to deal with it. If there's a damning restaurant review written by a competitor or a disgruntled employee, there are mechanisms to deal with that (such as lots more good reviews from actual customers).

When our nation was being formed, Thomas Paine and Benjamin Franklin stood behind their incendiary, treasonous views in public even at the risk of being hanged for what they said.

I was about to point out that Thomas Paine's big contribution to the public discourse was Common Sense which was published anonymously, but I skipped ahead to the end where Falkenthal tells us that herself:

The First Amendment guarantees freedom of speech, but not anonymity. If you want to be anonymous, create your own blog and become the modern version of a Colonial pamphleteer. Some high quality pamphlets were written anonymously, like Thomas Paine’s Common Sense, but most went into the trashcan of history. Just like those long forgotten pamphleteers, modern anonymous blogsites full of insults and rants will not long be remembered.

So, uh, wait. Which is it? Is it that Thomas Paine stood behind his incendiary treasonous views, or that he published them anonymously. It appears that even Falkenthal is confused. Furthermore, the last two sentences appears to undermine her entire argument. If these anonymous comments are just going into the trashcan of history and "will not long be remembered," then why do we need to ban them?

It seems like her argument is that anonymous speech is evil because it's mean and doubly horrible because no one pays attention to it. Honestly, her column -- with her name on it -- seems a lot more troll-like than an awful lot of "anonymous" comments we see these days.

Filed Under: anonymity, free speech, gayle falkenthal, trolls

Straw Man

from the informal-fallacy dept

Definition of straw man

Filed Under: arguing online, straw man, trolls

Internet Troll Jailed In The UK For Being A Jerk Online

from the 4chan-/b/-just-got-worried dept

We've written a few times in the past about various attempts to outlaw "being a jerk" online. These efforts are often well meaning, but pretty dangerous from the standpoint of any sort of belief in free speech. Being a jerk is silly and obnoxious, but it shouldn't be illegal. However, as a whole bunch of you have sent in, over in the UK, they feel differently. An internet troll who mocked a variety of dead people to their grieving friends and families has been sentenced to jail for "sending malicious communications." He got 18 weeks as the judge said, "You have caused untold distress to already grieving friends and family."

This is troubling on any number of levels. Most specifically, it's exceptionally worrisome when you base punishment on how someone responds to speech made by someone else. Yes, the comments were obnoxious and totally classless and uncalled for. But, whether or not they cause "distress" should not be the basis for judging whether or not they're legal. There are lots of things that someone can say that would cause distress, but that shouldn't make it illegal to say them. This certainly opens up a can of worms over just what kind of speech is so distressing that it gets you jail time. Either way, if you're from the UK, be careful what you post in our comments going forward. It apparently could get you jail time.

Filed Under: free speech, jerks, online, trolls, uk

Motion To Quash Against Copyright Troll Explains How IP Address Does Not ID User

from the will-it-work? dept

That Anonymous Coward alerts us to a recently filed "motion to quash" (pdf) one of the many subpoenas that copyright troll lawyer John Steele has been trying to get courts to issue. After running into trouble convincing judges in his home state of Illinois, it appears that Steele has branched out. This latest involves a lawsuit filed in the Northern District of California, where (unfortunately) Magistrate Judge Howard Lloyd went ahead and allowed early discovery and the issuance of subpoenas. While this is standard in many cases, more and more courts have begun realizing it is not appropriate in these copyright trolling cases where the sole purpose is to identify users to try to pressure them into settling.

While there have certainly been many motions to quash, this one made some particularly good points that seemed worth highlighting. First, it explains that IP addresses are not like fingerprints and do not identify a user (my emphasis):

The Third Degree Films complaint and ex parte request for expedited discovery form yet another in a wave of suits in which copyright infringement plaintiffs seek to “tag” a defendant based solely on an IP address. However, an IP address is not equivalent to a person or entity. It is not a fingerprint or DNA evidence – indeed, far from it. In a remarkably similar case in which an adult entertainment content producer also sought expedited discovery to learn the identity of persons associated with IP addresses, United States District Judge Harold Baker of the Central District of Illinois denied a motion for expedited discovery and reconsideration, holding that, “IP subscribers are not necessarily copyright infringers…The infringer might be the subscriber, someone in the subscriber’s household, a visitor with her laptop, a neighbor, or someone parked on the street at any given moment.” Order of Apr. 29, 2011, VPR Internationale v. DOES 1-1017, No. 2:11-cv-02068 (Central District of Illinois) (Judge Harold A. Baker) [hereinafter VPR Internationale Order], attached hereto as Exhibit C. The point so aptly made by Judge Baker is that there may or may not be a correlation between the individual subscriber, the IP address, and the infringing activity. Id. The risk of false identification by ISPs based on internet protocol addresses is vividly illustrated by Judge Baker when he describes a raid by federal agents on a home allegedly linked to downloaded child pornography. The identity and location of the subscriber were provided by the ISP (in the same fashion as Plaintiff seeks to extract such information from Wide Open West.) After the raid revealed no pornography on the family computers, federal agents eventually learned they raided the wrong home. The downloads of pornographic material were traced to a neighbor who had used multiple IP subscribers’ Wi-Fi connections. Id. This risk of false identification and false accusations through disclosure of identities of internet subscribers is also presented here. Given the nature of the allegations and the material in question, should this Court force Wide Open West to turn over the requested information, DOE No. 605 would suffer a reputational injury.

Separately, it notes that those using these tactics are using high pressure efforts to get people to pay up to settle:

If the mere act of having an internet address can link a subscriber to copyright infringement suits, internet subscribers such as DOE No. 605 will face untold reputational injury, harassment, and embarrassment. The reputational risk that Judge Baker found to be an undue burden is equally presented here: “[W]hether you’re guilty or not, you look like a suspect.” Id. at 3. Moreover, this case presents the same extortion risk that so concerned Judge Baker:

“Could expedited discovery be used to wrest quick settlements, even from people who have done nothing wrong? The embarrassment of public exposure might be too great, the legal system too daunting and expensive, for some to ask whether VPR has competent evidence to prove its case.”

Id. Discovery is not a game. Yet, plaintiffs in these types of cases use discovery to extort settlements from anonymous defendants who wish to avoid the embarrassment of being publicly associated with this type of allegation. Id. Such abuse of the discovery process cannot be allowed to continue.

From there, it argues that since an IP address does not identify the user, the subpoena itself is invalid:

Additionally, this subpoena should not have been issued in the first place because the information sought is not relevant to Plaintiff’s allegations. Implicit in the rule granting subpoena power is a requirement that the subpoena seeks relevant information. See Syposs v. United States, 181 F.R.D. 224, 226 (W.D.N.Y. 1998)(“the reach of a subpoena issued pursuant to [FED. R. CIV. P. 45] is subject to the general relevancy standard applicable to discovery under [FED. R. CIV. P. 26(b)(1)].”). The information linked to an IP address cannot give you the identity of the infringer. VPR Internationale Order, at 2. Because the infringer could have been anybody with a laptop passing within range of the router, the information sought by Plaintiff is not relevant to the allegations in any way. Id. Moreover, even if the information has some small amount of relevance to the claim—which it does not—discovery requests cannot be granted if the quantum of relevance is outweighed by the quantum of burden to the defendant. FED. R. CIV. P. 26(b)(2)(C)(iii). Plaintiff’s request fails that balancing test. Given that DOE No. 605 was only one of many persons who could have used the IP address in question, the quantum of relevance is miniscule at best. However, as discussed above, the burden to DOE No. 605 is severe. The lack of relevance on the one hand, measured against the severe burden of risking a significant reputational injury on the other, means that this subpoena fails the Rule 26 balancing test. Id. Plaintiff’s request for information is an unjustified fishing expedition that will cause reputational injury, prejudice, and undue burden to DOE No. 605 if allowed to proceed. Good cause exists to quash the subpoena served on Wide Open West to compel the disclosure of the name, address, telephone number and e-mail address of DOE No. 605."

Nice to see more people fighting back against obvious fishing expeditions. Hopefully more judges start realizing what these kinds of requests are really about.

Filed Under: copyright, id, ip address, trolls

Patent Troll Lawyers Smacked Down, Made To Pay Sanctions, For Mass Lawsuits Followed By Quick Settlement Offers

from the watch-out-righthaven... dept

dwg points us to a fascinating ruling by CAFC in EON-NET LP v. FLAGSTAR BANCORP, in which CAFC (who generally sides with patent holders) not only went against a patent troll, but also actually smacked the lawyers down with fairly large Rule 11 sanctions for filing a bogus lawsuit, where the intent appeared to only be to get a company to pay up. This ruling could become an interesting precedent not just in patent cases, but potentially in copyright trolling cases as well. The court points out that Eon-Net had filed over 100 patent infringement lawsuits, following up each one quickly with an offer of settlement. In this particular case, it was clear that Flagstar did not infringe on the patents in question.

While the court found a variety of misconducts (including document destruction), where this ruling becomes potentially very damaging for all sorts of trolls -- both copyright and patent trolls alike -- is in the finding of "baseless litigation in bad faith." Part of the reasoning here:

In addition to finding that Eon-Net filed an objectively baseless infringement action, the district court also determined that Eon-Net filed the lawsuit in bad faith and for an improper purpose... In particular, the district court found that Eon-Net's case against Flagstar had "indicia of extortion" because it was part of Eon-Net's history of filing nearly identical patent infringement complaints against a plethora of diverse defendants, where Eon-Net followed each filing with a demand for a quick settlement at a price far lower than the cost to defend the litigation.

The record supports the district court's finding that Eon-Net acted in bad faith by exploiting the high cost to defend complex litigation to extract a nuisance value settlement from Flagstar. At the time that the district court made its exceptional case finding, Eon-Net and its related entities, Millennium and Glory, had filed over 100 lawsuits against a number of diverse defendants alleging infringement of one or more patents from the Patent Portfolio... Each complaint was followed by a "demand for a quick settlement at a price far lower than the cost of litigation, a demand to which most defendants apparently have agreed."... In this case, as with the other cases, Eon-Net offered to settle using a license fee schedule based on the defendant's annual sales: $25,000 for sales less than $3,000,000; $50,000 for sales between $3,000,000 and $20,000,000; and $75,000 for sales between $20,000,000 and $100,000,000. Rule 11 Sanctions Order, at 3—4.

Check out those bolded parts. Sound familiar?

The court notes that it's no surprise that most companies agree to settle. This is important, because we regularly hear from patent system supporters insisting that when companies settle, it's proof that the patents are valid. Yet, here, the court itself points out that's ridiculous:

In this case, Flagstar expended over $600,000 in attorney fees and costs to litigate this case through claim construction. Supplemental Order on Fees and Costs, at 8—11. Viewed against Eon-Net's $25,000 to $75,000 settlement offer range, it becomes apparent why the vast majority of those that Eon-Net accused of infringement chose to settle early in the litigation rather than expend the resources required to demonstrate to a court that the asserted patents are limited to processing information that originates from a hard copy document. Thus, those low settlement offers—less than ten percent of the cost that Flagstar expended to defend suit— effectively ensured that Eon-Net's baseless infringement allegations remained unexposed, allowing Eon-Net to continue to collect additional nuisance value settlements.

Separately, the court clearly noted the "non-practicing entity" part of the business in pointing out that, "As a non-practicing entity, Eon-Net was generally immune to counterclaims for patent infringement, antitrust, or unfair competition because it did not engage in business activities that would potentially give rise to those claims."

In the end, the court agreed and allowed the district court's award of $141,984.70 for Rule 11 violations and another $489,150.48 in attorneys' fees. The law firms rushing around to file patent and copyright trolling lawsuits in the hopes of getting quick settlements may want to take notice.

Filed Under: copyright trolls, patent trolls, sanctions, trolls

Trolls: The Town Drunks Of The Internet

from the don't-quit-your-day-job dept

A study conducted by researchers at Northwestern University has reached a conclusion that many of us have entertained but dismissed as "not having a study conducted by researchers at Northwestern University behind it." Namely: trolling is like being sloppy drunk.

According to the science guys:

A new study has found that anonymity gives people the same feeling of abandon as power and alcohol intoxication.

"Although these pathways appear to be unrelated on the surface, they all lead to disinhibited states through a common psychological and neurological mechanism," said Jacob Hirsh of the university's Kellogg School of Management.

Dr Hirsh's colleague Professor Adam Galinsky said the loss of inhibition led to "significant behavioural consequences".

Ah, "loss of inhibition!" Is any combination of words sweeter to the ears (and livers) of trolls and drunkards alike? To be a troll is to be transported back to the heady days of frat house "Pre-Saturday Night Party" parties, where the cheap beer flowed like cheap beer and many bad decisions were made, most of them irrevocable.

Much in the same way that alcohol can turn a fertile mind into a karaoke-singing, one-man party bursting with OPINIONS! (and some vomit), trolling can turn a regular, possibly decent person into an apopleptic nightmare full of half-formed rejoinders and circular logic, which often devolves into schoolyard name-calling flameouts (well, a schoolyard full of drunks...) or sudden exits from the conversation, presumably to go "sleep it off" on the bathroom floor.

There's more from the professor, which explains a lot of what we see here at Techdirt on a daily basis:

When people lose their inhibitions, they often behave in a manner more consistent with their true motives or character. At the same time, they also tend to be more easily influenced by their environment.

"In effect, disinhibition can both reveal and shape the person, as contradictory as that may sound," Professor Galinsky said.

The end result is that power, alcohol and anonymity can all inspire either strong pro- or anti-social sentiments in people.

The study may help explain why anonymous commentators on the web often appear to hold extreme views.

Extreme views? Anti-social sentiments? Random hollering about someone's day job? It's all here. And for all the talk about "not feeding the trolls," it's hard to resist, especially when they're packing a buzz and getting the conversational munchies. Besides, who wouldn't want the chance to respond to a non sequitur composed of misspelled words and terrible analogies? We really want to take the high road, but the troll road is like a free ride straight downhill into STFU-ville. (Plus, the troll booths are closed! Bonus!)

Sooner or later, if the subject matter is contentious enough, the Techdirt comment threads are overrun with loudmouth drunks/trolls, not unlike the state of Wisconsin on any given night. (Or afternoon.) Ugly words are exchanged and brash statements made, most of them sorely in need of a citation. Hours later, it becomes a wasted blend of ALL CAPS shouting and any number of logical fallacies, before presumably heading quickly downhill to muted futile sobbing and calls to former sexual acquaintances.

And much like the virtual alcoholics they are, the trolling commenters will rarely let a day go by without a quick pull from the hip flask labelled "Submit," even if they've got nothing more than a quick "FUD" to spit out like an accidentally swallowed cigarette butt. Even the worst of hangovers won't stop the trolloholic from popping in quickly to call someone a liar or misread the byline on a post.

So, keep this valuable information in mind, Techdirt readers, the next time you find yourself trapped in an elliptical argument with an armchair Bukowski (sans the everything-that-made-Bukowski-appealing): they're just drunk on trolljuice, a potent blend of ignorance, anger and "chicken hawk syndrome."

How else would you explain this AC's one-man flamewar, in which he paints every disagreeing commenter with a broad paintbrush dipped in self-hatred (often mistaken for "mockery," but the acidic taste of bile gives it away), painting everything the same ugly shade of misanthropy?

Or this one?

Need one more?

Don't let the Anonymous Coward label fool you, though. Techdirt is filled with thoughtful and humorous AC's, while also serving as a host for a variety of proudly-named trolls. The real trolls are the commenters who show up for one reason: to insult as many Techdirt readers as possible while simultaneously trying to reframe the debate around their own twisted logic. You'd think it would be harder to type with such an outsized chip on your shoulder, but the internet never ceases to amaze.

Trolls, like the ones singled out above, are like the uncle you purposely uninvited to your wedding. The one who shows up anyway and spends the entire night alternately abusing the open bar and the wedding guests, bitterly decrying organized religion and the institution of marriage to anyone who will listen and others who are actively eyeing the exits. He swaggers around in a state of progressive drunkeness, alienating people left and right, before collapsing anti-climatically in the coat room after making a last-ditch pass at your newly-minted sister-in-law.

As the hangover ebbs, he remains secure in his belief that he "totally ripped those backwaters rubes a new one" when in all reality, all he did was pound home the fact that people hate him for a reason.

Trolls, just remember that your spluttering anger and misplaced indignity is often a source of amusement for us. Other times, it's just the same old shit, like when dad starts hitting the sauce and pounding out angry letters to the editor decrying the city council's recent decision to change local street signs to initial caps only. Sure, he seems to be truly perturbed by this now, but by the next day, it's just another piece of paper that ends up going straight from the Smith-Corona into the nearest wastebasket. The only difference is that, thanks to the miracle of THE INTERNET, the "angry letter" can be submitted instantly, 24/7, requiring nothing more of the brainstem-operating troll than the minute amount of hand-eye coordination needed to push a button.

So, bring on the worn-out cries of "Freetard!" and "Kool-Aid!", you trolling lushes. Just remember, our beverage of choice is booze-free. 

Filed Under: anonymity, drunks, internet, trolls

Patent Troll Going After iPhone/iPad Developers Who Use In-App Payments

from the oh-come-on dept

Another day, another example of a patent system holding back innovation. The latest is that a typical patent troll operation, named Lodsys, is threatening and/or suing a bunch of iOS mobile app developers for daring to make use of Apple's own in-app payment API to offer the ability to make purchases from within their apps. Lodsys lists out four patents that "are available for licensing."

• 5,999,908: Customer-based product design module
• 7,133,834: Product value information interchange server
• 7,222,078: Methods and systems for gathering information from units of a commodity across a network
• 7,620,565: Customer-based product design module

It appears that whichever patents Lodsys is using in bringing this claim, it's applying them extremely broadly. Meanwhile, the various developers who have now been sued are pretty freaked out. Most of them appear to be small shops -- perhaps just an individual developer -- whose big "mistake" was to actually use the tools Apple provided to make their software better. I can't see how anyone can defend a lawsuit like this as promoting the progress. The idea that in-app payments wouldn't have come along without these patents is -- on its face, preposterous in the extreme. Putting in-app payments into products is a natural evolution, and any programmer with a modicum of skills could have figured out ways to implement it. To claim that a patent was needed in this arena is simply ridiculous.

Filed Under: commerce, in-app payments, patents, trolls
Companies: apple, lodsys

Unicorns And Leprechauns Aren't Real... But Trolls Are (And They Have Lawyers)

from the reality-bites dept

A whole bunch of you have been sending in the silly story of Liberty Media's latest antics. As you may know, the porn producer has been crazy aggressive in going after file sharers, even going beyond the standard mass pre-settlement threat campaign, with a ridiculous amnesty offer to get people to pay $1,000 even if they haven't been accused of file sharing. Someone in Sweden, a guy named Ryan, apparently decided to taunt Liberty Media, sending an email to them "confessing" to regularly sharing Liberty Media works... along with mentioning the unicorns and leprechauns advising him. The whole thing was clearly a joke, but Liberty Media's parent company, Corbin Fisher, is apparently without much of a sense of humor and issued a subpoena to try to get the guy's info, claiming that they're taking his "confession" seriously. The guy says he's never shared or downloaded any Liberty Media stuff and isn't in the US anyway. Of course, Liberty is able to do this as a part of the discovery process, but do they really think this is going to go anywhere? I think, in the future, there should be some measure of how much of a sense of humor a company has, and people should learn to only deal with companies who can take a joke.

Filed Under: copyright, humor, jokes, trolls
Companies: corbin fisher, liberty media