Judge Alsup Slams Patent Troll For Basically Everything

from the don't-try-to-pull-a-fast-one-on-judge-alsup dept

Lots of folks probably remember Judge William Alsup from the Google/Oracle mess, in which he seemed to be one of the few reasonable people in the room, who actually took the time to understand the deeper technical issues. Alsup has quite a reputation for a number of other cases as well, and one thing that seems fairly clear is that you don't want to try to bullshit this judge who knows how to code on technical issues. You might recall in the Uber/Waymo fight, he also ordered both companies to teach him how LiDAR works and he made it clear that he wasn't messing around:

Please keep in mind that the judge is already familiar with basic light and optics principles involving lens, such as focal lengths, the non-linear nature of focal points as a function of distance of an object from the lens, where objects get focused to on a screen behind the lens, and the use of a lens to project as well as to focus. So, most useful would be literature on adapting LiDAR to self-driving vehicles, including various strategies for positioning light-emitting diodes behind the lens for best overall effect, as well as use of a single lens to project outgoing light as well as to focus incoming reflections (other than, of course, the patents in suit). The judge wishes to learn the prior art and public domain art bearing on the patents in suit and trade secrets in suit.

That brings us to a more recent case, involving notorious patent troll Uniloc -- a company we've written about a bunch in the past, mainly for its buffoon like attempts at patent trolling. This includes suing over the game "Mindcraft" (the trolls were in such a rush to sue, they didn't notice it was actually "Minecraft"), and a weak attempt to patent basic math. All the way back in 2011, we wrote about Uniloc getting smacked down by the Federal Circuit for pushing a ridiculous way of calculating patent damages.

It appears that in the intervening years, Uniloc hasn't given up any of this. The company keeps buying up more patents and suing lots of companies -- including Apple, which it has sued multiple times. One of those lawsuits was filed back in 2017. In response to this lawsuit, Apple argued that Uniloc didn't actually hold the right to sue over the patent. Ridiculously, Uniloc demanded most of the details be blacked out, arguing that it was "confidential."

It sounds like a situation not unlike the Righthaven situation from a few years ago, where the "real" holder of the patent (or, in Righthaven's case, the copyright) retained real ownership, but created a sham transfer whereby the suing company (in this case Uniloc) really only had the right to sue, and was disconnected from the actual right to license the patent. But, it's difficult to tell for sure, given all the black ink.

EFF got involved to protest this, and back in January Judge Alsup agreed that Uniloc couldn't hide this info. Since then, Uniloc has been trying to convince Judge Alsup to change his mind, with a ton of filings (and a few hearings) back and forth on this issue. Earlier this week Judge Alsup more or less rejected every argument Uniloc made, even going beyond the question of redacting info.

In short, Judge Alsup says he got it right the first time, and the public's right to know outweighs any concern Uniloc has for giving up its "secret sauce."

This order reiterates the prior order denying plaintiffs’ initial request to seal: generalized assertions of potential competitive harm fail to outweigh the public’s right to learn of the ownership of the patents-in-suit, which patents grant said owner the right to publicly exclude others.... It also reiterates that this is particularly true where, as here, the public has an especially strong interest in learning the machinations that bear on the issue of standing in the patent context. Furthermore, the United States government bestows entities such as Uniloc the right to control the use of the purported inventions at issue. Because Uniloc’s rights flow directly from this government-conferred power to exclude, the public in turn has a strong interest in knowing the full extent of the terms and conditions involved in Uniloc’s exercise of its patent rights and in seeing the extent to which Uniloc’s exercise of the government grant affects commerce.

In other words, a patent grants you tremendous power to exclude in exchange for the public revelation of what you've invented. Uniloc shouldn't be able to conduct its business in secret.

Alsup also notes that Uniloc doesn't even come close to justifying the reasons for its requested redactions other than a general "oh, but it will hurt our business."

... plaintiffs’ supposed risk of (still) generalized competitive harm in future negotiations from disclosure did not and does not compellingly outweigh the public’s interest in accessing this information for the reasons stated above

Alsup mocks Uniloc's reference to other patent suits (including Apple v. Samsung) in which some information was redacted by noting that that was a totally different situation involving actually confidential information from companies selling actual products, not just trolling.

Plaintiffs’ reliance on Apple Inc. v. Samsung Electronics. Co. Ltd., ... is unavailing, inasmuch as the parties there sought to seal product-specific financial information (such as costs, sales, profits, and profit margins), as opposed to the licensing-specific financial information at issue here.... Plaintiffs here have no products to sell and thus their (alleged) risk of competitive harm is entirely distinguishable from that in Apple.

A few other areas where Uniloc sought to hide info, Alsup dismisses by pointing out that a "boilerplate assertion of competitive harm fails to provide a compelling reason to seal."

And that's not all that Alsup appears displeased with Uniloc over. Remember earlier when I talked about Uniloc running into trouble years back for using a nutty formula for trying to calculate damages? Well, Alsup notes that redacting all this info might help Uniloc hide "reasonable royalties" from being used in damage calculations, and calls out "vastly bloated figures."

The impact of a patent on commerce is an important consideration of public interest. One consideration is the issue of marking by licensees. Another is recognition of the validity (or not) of the inventions. Another is in setting a reasonable royalty. In the latter context, patent holders tend to demand in litigation a vastly bloated figure in “reasonably royalties” compared to what they have earned in actual licenses of the same or comparable patents. There is a public need to police this litigation gimmick via more public access. We should never forget that every license has force and effect only because, in the first place, a patent constitutes a public grant of exclusive rights.

Once again, the message is: don't try to bullshit Judge Alsup, especially on technical issues. Now, hopefully, we'll finally see the details of Uniloc's agreements over these patents, and why exactly Apple thinks Uniloc really has no standing to sue.

Filed Under: court records, damages, ownership, patent trolls, patents, redactions, seal, transparency, william alsup
Companies: apple, uniloc

Uber Waymo Trial Delayed After Justice Department Jumps In, Unprompted, To Tell Judge That Uber Was Withholding Evidence

from the holy-shit dept

So lots of people were gearing up for the Waymo/Uber trial starting next week over Uber's alleged efforts to get Waymo's (Google's self-driving car project) trade secrets. There are a whole bunch of issues around this case that are interesting -- from questions involving what really is a trade secret to where the line is between controlling former employees and allowing people to switch jobs within an industry. But... all of that has been completely tossed out the window as more and more evidence piles up that beyond those key legal issues, Uber sure did some shady, shady stuff. This morning, the latest bombshell (in a long line of bombshells) is that the judge has delayed the trial after the Justice Department got involved, totally unprompted. No, really.

You have to piece together some of the details, because some of the key documents are heavily redacted, but let's try to unpack what appears to have happened. Earlier this year, the judge in the case, William Alsup, referred the case to federal prosecutors to also investigate whether anything criminal had happened. Normally, in such cases, federal prosecutors will spend quite a while looking into the details and no one -- including the judge who made the referral -- will hear boo from the DOJ until charges are filed (if that ever happens). Except... that's not what happened. Apparently while investigating the possible criminal behavior by Uber, the DOJ noticed that Uber had failed to hand over a key piece of evidence during discovery. Specifically, it appears to be a letter from a former Uber security analyst named Richard Jacobs, concerning efforts by Uber to access competitor trade secrets -- and to conceal that information (there is some suggestion that this involved using disappearing messaging apps).

This would have been required to be handed over during discovery, but was not. And no one would have known about it, had the acting US Attorney for the Northern District of California not decided, unprompted, to let Judge Alsup know about it -- leading Judge Alsup, just last week, to order Uber to hand it over to Waymo. You can get some of this from the heavily redacted filing made by Waymo's lawyers, in which you can hear their exasperation over just finding this out.

Also, Judge Alsup order Jacobs to appear in court and answer questions, and reports from the courtroom suggest it's been... messy. Reporters Kate Conger and Joe Mullin have been providing some fairly astounding color commentary. A few snippets from their tweets:

As computer security guru Matt Blaze points out, there are plenty of good reasons for companies to want to use secure communications -- but doing so explicitly to avoid having your conversations show up during discovery certainly doesn't look good in court.

Either way, Judge Alsup appears to be less than happy about all of this:

“We're going to put trial off … because even if half of what’s in that letter is true it would be a huge injustice to Waymo to have to go to trial now,” the judge said...

Judge Alsup also noted that "the public is going to hear everything" about this evidence, so there's likely to be more coming down the road.

Once again, there are all sorts of interesting legal questions underlying this case -- but as happens all too often, it appears that some fairly blatant bad behavior is likely to obscure much of that. While it may make for more entertaining stories, it can muck up some of the legal questions. Or, as lawyers sometimes note, bad cases make bad law. This is shaping up to be a bad case with a pretty clear pattern of incredibly bad behavior by Uber (which, of course, appears to be consistent with the company's reputation). And, unfortunately, that seems likely to distract from some actually important issues that could have a much wider impact, concerning questions around trade secrets and employment.

But, no matter what, withholding evidence like this during discovery -- not to mention some of that evidence being an explanation of how the company tried to avoid discovery -- is a double layer cake of extremely sketchy behavior. It seems unlikely that this will end well for Uber.

Filed Under: autonomous vehicles, discovery, doj, evidence, richard jacobs, self-driving cars, trade secrets, william alsup
Companies: google, uber, waymo

Judge Alsup Threatens To Block Malibu Media From Any More Copyright Trolling In Northern California

from the run-away...-run-away dept

Yes, we keep seeing Judge William Alsup appear on these pages, as he keeps getting high profile tech related cases. And, while we don't always agree with his decisions, I don't think that anyone can argue that he isn't careful and thorough in making sure he understands the technology involved in these cases. The most well-known example of this, of course, was the time he taught himself to program Java to understand the deeper issues in the copyright dispute over Java's API's (which helped him make the right call in saying API's were not eligible for copyright protection -- a ruling that was unfortunately overturned by the Federal Circuit). More recently, Judge Alsup also got some attention for demanding lessons and reading materials in how to build LiDAR systems, to understand the trade secrets fight between Uber and Waymo over their LiDAR technology. And, just as a reminder, he's not talking about basic level stuff here:

Please keep in mind that the judge is already familiar with basic light and optics principles involving lens, such as focal lengths, the non-linear nature of focal points as a function of distance of an object from the lens, where objects get focused to on a screen behind the lens, and the use of a lens to project as well as to focus. So, most useful would be literature on adapting LiDAR to self-driving vehicles, including various strategies for positioning light-emitting diodes behind the lens for best overall effect, as well as use of a single lens to project outgoing light as well as to focus incoming reflections (other than, of course, the patents in suit). The judge wishes to learn the prior art and public domain art bearing on the patents in suit and trade secrets in suit.

Yeah. So. It was probably a good thing that, a year and a half ago, the Chief Judge in the Northern District of California, said that any new Malibu Media copyright trolling cases had to go in front of Judge Alsup. Malibu Media, of course, is the US's biggest copyright troll, responsible for a fairly insane percentage of all the copyright infringement lawsuits filed in the US. We've had a ton of stories about the company and some of its fairly shady practices in copyright trolling. Malibu Media, of course, is also a sleight of hand, as it's actually the porn company better known as X-Art. It's also been connected to the famous "international men of mystery", often referred to as Guardaley -- a German company, that's gone through various name changes, and seems to be behind numerous copyright trolling operations.

Either way, last year, we noted that Judge Alsup had been quick to understand what was going on with Malibu Media, and, in particular, called out the company for attempting to cut and run on any case when challenged. This is pretty typical of many copyright trolls. If the defendant in the case actually challenges anything, Malibu will often dismiss the case and run away, so as not to have to bother with defending its own legal tactics.

It appears that Alsup is getting increasingly tired of Malibu Media trying to abuse the judicial system as part of its shakedown business model. As first noted by the Fight Copyright Trolls blog, Alsup has issued an order to show cause why it should be barred from filing any more lawsuits in the district.

Specifically, Alsup is doing this in response to Malibu Media's claims that the geolocation technology it uses, from Maxmind, is close to 100% accurate in locating where a given IP address is located. If Maxmind sounds familiar, that's because it's the company which was the subject of numerous stories last year about how laughably bad its geolocation tools were, including the truly horrifying story of how Maxmind would tell lots of people that various IP addresses were at a random house in Kansas, leading lots of strangers to show up there, often angry about scams or spam.

So, yeah, to then go into court and declare that Maxmind is perfect... didn't go over too well:

In this particular case, as in each case filed in this district in October 2016, counsel for Malibu Media averred in a sworn declaration that Malibu Media used a database called “Maxmind” to map our defendant’s IP address to a particular district in order to determine the proper venue for this action (Dkt. No. 7-6). The declaration parroted several hearsay statements about the accuracy of Maxmind from its website, but counsel also averred that in their experience in California “Maxmind has always been 100% accurate to the state level, 100% accurate at identifying the ISP and has predicted the correct district 146 out of 147 times”

He then points to that article linked above, about the house in Kansas, and says that Malibu Media better come up with better evidence of accuracy, or that's it for lawsuits in Northern California:

Malibu Media is hereby ordered to SHOW CAUSE at that hearing, why the Court should not bar further Malibu Media cases in this district until the accuracy of the geolocation technology is fully vetted. Malibu Media shall file a written statement, with all factual assertions supported by declarations sworn under the penalty of perjury by MAY 16 AT NOON.

Oh, and since Malibu Media has a history of cutting and running, he added this kicker:

To be clear, this order applies even if Malibu Media voluntarily dismisses this action.

In other words: don't run and hide. It won't work.

The order also highlights that Alsup is well aware of how the copyright trolling scam works, quoting another judicial hero in the fight against copyright trolls, Judge Otis Wright, who famously was the first to call out Prenda, and kicked off a series of events that resulted in Prenda's two principles getting indicted.

Here, Judge Alsup quotes Judge Wright, calling out Malibu Media as well:

The Court is familiar with lawsuits like this one. These lawsuits run a common theme: plaintiff owns a copyright to a pornographic movie; plaintiff sues numerous John Does in a single action for using BitTorrent to pirate the movie; plaintiff subpoenas the ISPs to obtain the identities of these Does; if successful, plaintiff will send out demand letters to the Does; because of embarrassment, many Does will send back a nuisance-value check to the plaintiff. The cost to the plaintiff: a single filing fee, a bit of discovery, and stamps. The rewards: potentially hundreds of thousands of dollars. Rarely do these cases reach the merits.

The federal courts are not cogs in a plaintiff’s copyright-enforcement business model. The Court will not idly watch what is essentially an extortion scheme, for a case that plaintiff has no intention of bringing to trial.

It's really quite astounding that operations like Malibu Media have been able to keep this up this long. It eventually crashed and burned for Prenda, and it looks like Malibu Media may be facing some more significant challenges in the near future as well.

Filed Under: copyright, copyright trolling, geolocation, william alsup
Companies: malibu media, maxmind, x-art

Judge Alsup Wants Uber & Waymo To Teach Him How To LiDAR Prior To Self-Driving Car Case

from the will-judge-alsup-design-his-own-lidar? dept

Judge William Alsup certainly continues to make himself known for how he handles technology-intensive cases. In techie circles, he's mostly known for presiding over the Oracle/Google Java API copyright case, and the fact that he claimed to have learned to program in Java to better understand the issues in the case (in which he originally ruled, correctly, that APIs were not subject to copyright protection, only to be overturned by an appeals court that simply couldn't understand the difference between an API and functional code). He's also been on key cases around the no fly list and is handling some Malibu Media copyright trolling cases as well.

And, last month, he was handed another big high-profile case regarding copying and Google: the big self-driving car dispute between Google's (or "Alphabet's") Waymo self-driving car company and Uber. In case you weren't following it, Waymo accused a former top employee of downloading a bunch of technical information on the LiDAR system it designed, only to then start his own self-driving car company, Otto, which was then bought up by Uber in a matter of months. Most of the lawsuit is focused on trade secrets, with a few patent claims thrown in as well.

Either way, Judge Alsup appears to want to be educated on LiDAR before the case begins. In two orders last week, Judge Alsup first asked lawyers for each side to present a basic tutorial on the basics of self-driving car technology:

For a tutorial for the judge, counsel shall please make presentations to set forth the basic technology in the public domain and prior art bearing on the trade secrets and patents at issue on the motion for provisional relief. Please do not refer to the actual systems or subsystems used by either party. (Those will be presumably covered in the motion papers.) For the tutorial, please refer only to what is in the public domain or prior art, regardless of whether or not one side or the other actually practices it. That is, in the tutorial, please do not say what the parties actually practice but if the item is in the public domain, you may reference the public domain part, even if one side or the other practices it. Make sure that all points in the tutorial reside in books, treatises, articles, public interviews, public videos, blogs, websites, seminars, presentations, Form 10-Ks, or other publicly verifiable sources. Please exchange approximate scripts beforehand so that each side may vet the other. Each side will have forty minutes on APRIL 12 AT 10:00 A.M. The public may attend the entire presentation. The judge is interested in learning the basic technology and learning publicly known art.

I'm kinda disappointed that I've got something else that I can't get out of that day so that I can't attend. Oh, and Judge Alsup also got some press attention for then asking that each side might want to send "young lawyers" for the tutorial:

This would be a good opportunity for a young lawyer to present in court.

Of course, Judge Alsup actually has a bit of a history of doing similar things. If I remember correctly, he made a similar suggestion in the Oracle/Google case as well, and people have noted he's done it before as well. The idea is that he wants to encourage firms to enable younger, less experienced lawyers to get more courtroom experience and find areas where you don't necessarily need the veteran partner, even in a high-profile clash among mutli-billion dollar behemoths.

Still, it was another request that came a few days later that has gotten more attention (first spotted by Julia Carrie Wong), in which Judge Alsup also asked each side to recommend a book for him to read about LiDAR. But not just any book. You see, Judge Alsup wants you to know that he's not a total noob when it comes to light and optics, so don't feel the need to send him "LiDAR for Dummies" or whatever:

The judge requests each side to name one (and only one) book, treatise, article or other reference publicly available that will inform him about LiDAR, and particularly its application to self-driving vehicles.

Please keep in mind that the judge is already familiar with basic light and optics principles involving lens, such as focal lengths, the non-linear nature of focal points as a function of distance of an object from the lens, where objects get focused to on a screen behind the lens, and the use of a lens to project as well as to focus. So, most useful would be literature on adapting LiDAR to self-driving vehicles, including various strategies for positioning light-emitting diodes behind the lens for best overall effect, as well as use of a single lens to project outgoing light as well as to focus incoming reflections (other than, of course, the patents in suit). The judge wishes to learn the prior art and public domain art bearing on the patents in suit and trade secrets in suit.

Now I'm just waiting to find out that Judge Alsup, tinkering alone in his garage (or, better yet, at the Courthouse), will build his own damn LiDAR system, just to better understand the technology at play.

I don't always agree with Judge Alsup on stuff (I don't always agree with anyone), but I respect his desire to go deep in trying to understand the core technologies when he's reviewing cases on those subjects. That's (unfortunately) quite different than many other judges. Hopefully more judges adopt Judge Alsup's practices on cases like these.

Filed Under: lidar, self-driving cars, william alsup
Companies: google, uber, waymo

Judge: Using Publicly-Available Twitter Profile Info Is Like Stealing Social Security Numbers

from the #wat dept

A potential class action lawsuit against Twitter and the creators of a short-lived app that allowed users to "buy" and "sell" celebrities' Twitter accounts has raised some questions about a federal judge's grasp on social media reality and the First Amendment.

The background: Jason Parker -- fronting an Alabama-based class action suit [original filing here] -- sued Twitter and Hey, Inc. back in August, claiming Hey's "Famous" app violated the state's right of publicity law. (We won't get into how ridiculous many "right of publicity" laws are as this lawsuit may not even survive a motion to dismiss even after it's amended.) The app, called "Famous: The Celebrity Twitter" allowed users to collect, buy, and trade Twitter profiles of famous people using virtual currency.

For some reason, this made a bunch of people angry. The app's gameplay -- buying and selling people -- was somewhat unsavory, but it was all based on publicly-available Twitter profile information. Twitter allowed the app to pull this data for use in the game. The game underwent some changes after Congresswoman Katherine Clark sent a letter to Twitter telling it to remove all "unconsenting" profiles, whatever that meant.

Hey, Inc. pulled the app and retooled it, releasing it a month later as simply "Famous." Gone was the virtual currency (almost) and the buying and selling of Twitter profiles. Instead, players "invested" in celebrity Twitter accounts with "hearts," which could be purchased with real money.

The class action suit persisted as Parker's right of publicity claims wasn't based on whether Twitter profiles were bought/sold/stolen, but rather that Twitter didn't have the right to make this information available to the app creators. Despite voluntarily using a service and providing Twitter with profile information, Parker (and users similarly situated) somehow believe they should be able to control how their Twitter profile information is used.

Supposedly, Hey, Inc. -- with Twitter's "collusion" -- is "exploiting" thousands of profiles for profit without their "consent." This must be Parker's first experience with a social media platform if he thinks Twitter is the only one "exploiting" users and their data for profit. Sure, it looks a bit more unseemly when an app allows users to buy and sell other people's profiles for in-game currency/hearts, but all of this voluntarily-provided data can be accessed by anyone, with or without Twitter's strict approval. (Use of Twitter's API is subject to some restrictions, but public profile information can be seen by anyone, even without a Twitter account.)

Twitter has been in court arguing that Parker's claims -- if upheld -- will violate it and its users' First Amendment right, as reported by Helen Christophi of Courthouse News.

At oral argument Thursday, [Judge William] Alsup assailed Twitter’s argument that Parker’s right-of-publicity claim violates the First Amendment by seeking to curb users’ activities with each other’s profiles.

“I don’t see how you can even make that argument with a straight face,” Alsup told Twitter attorney Matthew Brown.

Brown replied: “Twitter has the First Amendment right to disseminate the information.”

This is a legitimate argument. Dissemination of information is protected speech. Judge William Alsup -- who has done good IP work elsewhere -- somehow managed to make the following retort without realizing how completely off-base his comparison is.

Alsup took issue with that, likening it to criminals stealing and sharing Social Security numbers.

“I can’t believe the First Amendment allows that kind of criminal conduct,” Alsup said. “You’re telling me that’s protected by the First Amendment? No way. You’re disclosing their personas.”

WTF.

Information voluntarily provided to Twitter for profiles is in NO WAY comparable to other personally-identifiable information that is traditionally safeguarded by users and platforms alike. The app's use of Twitter's API only pulls publicly-available profile information that has been provided by users. Anyone whose Twitter account is public is "disclosing their persona." No one's doing that with their Social Security numbers. (If they are, good lord please get off the internet.) Twitter isn't digging up information not voluntarily provided by users and adding that to the pool of data by Hey Inc.'s game. Jason Parker's "right of publicity" isn't being violated and the use of publicly-available data is decidedly not a criminal act.

Parker's lawyer didn't do any better than Judge Alsup with his assertions.

Parker’s attorney Tievsky said the Constitution does not protect Twitter in this case.

“The point here is, in the use of my client’s name and likeness, there is no creative expression, there is a mere taking of information and putting it in another place and another context, and that’s what becomes problematic,” Tievsky said. “We’re not talking about the kind of expressive work we recognize for First Amendment protection.”

The First Amendment doesn't just protect for expressive works. As was stated earlier, the publication of information/data is protected by the First Amendment. If it wasn't, every person with a beef about their failed lawsuits and/or criminal convictions would be able to scrub the web of public documents containing these details (along with any reporting using these documents as source material) because this publication would no longer be protected speech.

Just because Parker and Judge Alsup don't like the app's gameplay doesn't mean Hey, Inc. or Twitter are committing some form of new digital crime and/or working outside of the confines of protected speech.

Hopefully, these arguments won't become worse as the case moves forward. Judge Alsup has given Parker permission to amend his filing and claims he needs an "expert on consent" to help sort things out. Parker claims he never consented to Twitter allowing third parties to use his voluntarily-provided profile data, but that's a claim that's going to be extremely difficult to assert successfully. The information was already out there for any third party to access. Twitter just made it simpler.

Filed Under: first amendment, public info, publicly available info, social media, william alsup
Companies: famous, hey, twitter

Judge Calls Out Malibu Media For Its Attempt To Cut And Run When Faced With Challenge To Its Infringement Claims

from the so-many-trolling-jerks,-so-little-time dept

IP trolls are about 90% cardboard facade. They puff themselves up with blustery legal threats written on serious-looking legal letterhead, but it's really no different than the defensive mechanisms of many creatures found on the lower end of the food chain. For most, the slightest of pushes back results in the whole charade collapsing.

There's a great future in speculative invoicing, said no one ever in any seminal coming-of-age, post-college disillusionment film. Just look at Prenda Law, which resorted to fraudulent behavior when its aggressive, but incompetent, trolling failed to pay the bills. And yet, nothing stops the trolls from trolling. The occasional speed bump surfaces, but trolls dismiss these rather than meet the challenge head on. They're in it for settlements, not wins… and certainly not precedent.

Unfortunately, too many will get away with the following tactic, as covered by indispensable thorn-in-trolls'-side, Sophisticated Jane Doe of Fight Copyright Trolls.

[T]he “main course” served on Monday was the order denying plaintiff’s motion to dismiss counterclaim in Malibu Media v John Doe (CAND 15-cv-04441, defense attorney: Joseph C. Edmondson). As I will explain shortly, this order essentially destroyed one of the two main foundations of the copyright trolling.

While answering Malibu’s complaint on 4/26/2016, the defendant counterclaimed with a single count of declaratory judgment of non-infringement (basically asking the judge to formally rule that the defendant was not an infringer).

Malibu moved to dismiss the counterclaim, arguing that such counterclaim mirrors defendant’s denial of liability found in the Answer. The defendant replied, cleverly pointing to Oracle v Google (a lawsuit handled by the same judge), where Google made a similar counterclaim.

While Judge Alsup agreed that there is certain duplicity between the denial as an essence of the counterclaim and the denial as a part of the Answer, he nonetheless denied the plaintiff’s motion, leaving the defendant’s counterclaim alive.

Why is this denial of Malibu's motion to dismiss important? Because it undercuts its sole interest in litigation: easy money.

As I mentioned above, copyright trolling rests on two turtles: astronomically (and maybe unconstitutionally) high statutory fines, and the absence of downside for the troll as it can always cut and run, leaving the defendant with painful legal bills.

Judge Alsup just closed the second avenue, at least in his district. The case is now “locked,” and it is not in the plaintiff’s power to dismiss it unilaterally any longer.

It's a cheap legal trick -- one that even the US government isn't above using to escape cases where it may be found liable for legal fees. When the pushback arrives, dump the case. Standard m.o. There's very little margin in their normal shakedown work. That's why they try to bundle up as many Does as possible in every filing. And that's why they move to dismiss as soon as they encounter a little friction.

Malibu seeks this, knowing full well it has almost zero chance of "recovering" this amount -- hoping that the scarily large numbers (fully supported by ridiculous IP laws) will intimidate the defendant into a settlement. From Judge Alsup's denial [PDF]:

Malibu Media seeks statutory damages of at least $17,250 for defendant’s alleged infringement of twenty-three videos ($750 per work), with a potential for much greater liability if infringement is found to be willful or if the jury finds Malibu Media is entitled to damages on the higher end of the range provided by statute.

Malibu tried to pretend the counterclaim imposed an unfair burden on its trolling effort.

Malibu Media argues that permitting defendant’s counterclaim to proceed would require it to file an answer in which it would deny all the allegations and refer back to the complaint.... Malibu Media also contends the declaratory judgment counterclaim would confuse a jury.

And found no sympathy in Judge Alsup.

Not really, however, a jury would never need to know that the case involves an affirmative claim of infringement and a declaratory judgment counterclaim of non-infringement. The jury could render one verdict resolving both claims. Malibu Media will suffer no prejudice.

Alsup goes on to call Malibu's motion what it is: a transparent attempt to dodge potential liability for legal fees.

Malibu Media’s motion seems more like a gimmick designed to allow it an easy exit if discovery reveals its claims are meritless.

This, as Alsup notes, tilts the system heavily toward the plaintiff, considering what a defendant might be facing if found to be culpable.

The damages exposure in this case, as with Malibu Media’s many other cases, is significant, so a defendant may feel pressure to settle even a meritless case. Coupled with the taboo nature of the subject matter, there remains potential for abuse.

[...]

Dismissing defendant’s counterclaim would eliminate one avenue for a fee award, and, as stated, maintaining the counterclaim would cause no prejudice to Malibu Media.

It will take a steady stream of opinions like these to stem the flow of IP trolls -- and some sort of consistency between multiple jurisdictions -- but every decision that calls trolls like Malibu out for their predatory behavior is a good one.

Filed Under: copyright, copyright trolling, counter claims, dimissals, william alsup
Companies: malibu media

Judge Rejects Oracle's Attempt To Get Court To Reject Jury Verdict Over Java API Copyright

from the nice-try,-see-you-next-time dept

Following the jury verdict finding in favor of fair use for Google and its use of Oracle's Java APIs (if you haven't yet, you should listen to our podcast about the trial), Oracle asked Judge Alsup to basically ignore the jury ruling. Specifically, Oracle asked Judge Alsup to rule that "as a matter of law" that Google's use was not fair use, thus negating the need for the jury to settle any dispute. This is actually how the original Alsup ruling in this case came about. After the first trial had a jury find Google had infringed, Alsup said that, as a matter of law, APIs were not eligible for copyright protection and effectively dumped the jury ruling... until the appeals court overturned that ruling and sent the case back for a second trial focused solely on the fair use question.

This time, however, Judge Alsup was not at all willing to say that either side prevailed as a matter of law, and has declared the jury verdict final. Alsup's explanation for denying the motions to ignore the jury is well argued, and basically said "look, there was a clear trialable issue here and the jury handled it":

Under the law as stated in the final charge and on our trial record, our jury could reasonably have found for either side on the fair use issue. Our trial presented a series of credibility calls for our jury. Both sides are wrong in saying that all reasonable balancings of the statutory factors favor their side only. To the extent either side now quarrels with the law as stated in the final charge, the time for those arguments was at or before the charging conference or eventually on appeal. For now, at the district court, the jury instructions control.

Alsup notes that, of course Oracle is going to appeal, so as with last time, he adds some background potentially directed at the appeals court more than either of the parties in the case. Concerning the main line of attack that Oracle is expected to use on appeal -- over the instructions to the jury concerning fair use, Alsup notes that there was nothing wrong with the instructions at all, and that both parties had plenty of chances to weigh in on those instructions:

The fair use instructions followed largely the review of fair use law as set forth in the Federal Circuit’s opinion except for modifications urged by counsel and to account for how the case was actually tried. The final jury charge culminated an exhaustive and iterative process of proposals by the judge followed by critiques by counsel. Months before trial, the Court informed both sides that it expected to use the Federal Circuit’s opinion canvassing fair use law as the starting point and requested briefing from the parties addressing what modifications should be made. After reviewing those comments, the Court circulated a first proposed charge on fair use and requested critiques. Counsel submitted their critiques a week later with replies the following week. In light of the critiques, a second draft made substantial revisions, asking counsel to meet and confer to reach an agreed-on instruction in light of that proposal and to submit briefs and responses regarding the areas of disagreement. After reviewing the further briefs and responses, the Court next circulated “penultimate instructions on fair use,” a third draft, and invited a third round of comment. Those critiques also led to modifications and a final notice of the pre-instruction on fair use to be read to the jury before the start of the evidence. Counsel (and the jury) were advised that the final instructions at the end of the evidence would possibly be adjusted to reflect the way the case was tried (and, in fact, some minor modifications did occur). During the trial, the judge sought briefs on several issues in play as the evidence came in. Based thereon, a notice of the proposed final charge circulated the night before the close of evidence. At the charging conference, counsel raised both new points and old ones (although they were permitted to rest on prior critiques). Final modifications followed. The jury was charged accordingly

Alsup also goes into great detail (again, remember that he taught himself Java to better understand the issues in this case the first time around -- and it shows here) discussing the dividing line between Java and not just the APIs, but the "necessary" APIs and the non-necessary APIs. Check out the following, excerpted at great length, to show how thoroughly deep into the weeds Judge Alsup got to understand this case (for clarification, the term "SSO" stands for "Structure, Sequence, and Organization" and was a key issue in the case):

Oracle has portrayed the Java programming language as distinct from the Java API library, insisting that only the language itself was free for all to use. Turns out, however, that in order to write at all in the Java programming language, 62 classes (and some of their methods), spread across three packages within the Java API library, must be used. Otherwise, the language itself will fail. The 62 “necessary” classes are mixed with “unnecessary” ones in the Java API library and it takes experts to comb them out. As a result, Oracle has now stipulated before the jury that it was fair to use the 62 “necessary” classes given that the Java programming language itself was free and open to use without a license....

That the 62 “necessary” classes reside without any identification as such within the Java API library (rather than reside within the programming language) supports Google’s contention that the Java API library is simply an extension of the programming language itself and helps explain why some view the Java API declarations as free and open for use as the programming language itself. At least to the extent of the 62 “necessary” classes, Oracle agrees.

All this said, our fair use issue, as presented to our jury, came down to whether someone using the Java programming language to build their own library of Java packages was free to duplicate, not just the “necessary” functions in the Java API library but also to duplicate any other functions in it and, in doing so, use the same interfaces, i.e., declaring code, to specify the methods — so long as they supplied their own implementing code.
Oracle’s argument in the negative amounts to saying: Yes, all were free to use the Java programming language. Yes, all were free to use the 62 necessary classes from the Java API. Yes, all were free to duplicate the same functionality of any and all methods in the Java API library so long as they “re-implemented” (since copyright does not protect functionality or ideas, only expression). But, Oracle would say, anyone doing so should have scrambled the functionalities among a different taxonomy of packages and classes (except as to the 62 “necessary” classes). That is, they should have used a different SSO.

Here, the undramatic yet practical point comes into sharp focus. If, as it was entitled to do, Google had simply reorganized the same functionality of the 37 re-implemented Java packages into a different SSO (taking care, however, not to disturb the 62 necessary classes and their three respective packages), then Java programmers, in order to use the Java system as well as the reorganized Android system, would have had to master and keep straight two different SSO’s as they switched between the two systems for different projects. Our jury could reasonably have found that this incompatibility would have fomented confusion and error to the detriment of both Java-based systems and to the detriment of Java programmers at large. By analogy, all typewriters use the same QWERTY keyboard — imagine the confusion and universal disservice if every typewriter maker had to scramble the keyboard. Since both systems presupposed the Java programming language in the first place, it was better for both to share the same SSO insofar as they offered the same functionalities, thus maintaining usage consistency across systems and avoiding cross-system confusion, just as all typewriter keyboards should use the QWERTY layout — or so our jury could reasonably have found.

The same could have been reasonably found for the second purpose of the declaring code — specifying the inputs, outputs, and their type. To the extent a specification could be written in more than one way to carry out a given function, it was nevertheless better for all using the Java language to master a single specification rather than having to master, for the same function, different specifications, one for each system, with the attendant risk of error in switching between systems — or so our jury could reasonably have found.

In terms of the four statutory factors, this consideration bears significantly upon the nature and character of the use (the First Factor), the functional character of the declaring code (the Second Factor), and the limited extent of copying (the Third Factor), that is, Google copied only so much declaring code as was necessary to maintain inter-system consistency among Java users. Google supplied its own code for the rest. Overall, avoiding cross-system babel promoted the progress of science and useful arts — or so our jury could reasonably have found.

Honestly that's one of the most thorough and clear descriptions I've seen to date of the fair use question here.

Another issue that came up was whether or not Oracle showed that Google acted in "bad faith." Oracle used a number of emails (often taken out of context) to argue that Google knew it was infringing on Sun's copyrights (though, many of the details suggested the actual concern was more about trademark -- or involved people who didn't really understand the nuances of copyright law). Judge Alsup points out that it's not even clear "good faith" or "bad faith" are even allowed as considerations in fair use analysis, though he notes that he allowed Oracle to pursue it -- and then allowed Google to build a case for "good faith" in response. For the question of whether or not this is an issue "as a matter of law," Alsup notes that it's clearly one that a jury should decide (and did, in Google's favor):

... our jury could reasonably have concluded that Google’s use of parts of the Java API as an accelerant was undertaken based on a good faith belief that at least the declaring code and SSO were free to use (which it did use), while a license was necessary for the implementing code (which it did not use). Our jury could reasonably have concluded that Google’s concern about making an enemy of Sun reflected concern about the parties’ business relationship in light of the failed negotiations that would have brought Sun in as a major partner in Android, rather than concerns about litigation. Mental state was and remains a classic province of the jury.

The judge also rejects Oracle's claim that no one could possibly argue that direct copying of the APIs was "transformative." That's not how the "transformative" test works, Alsup notes, pointing to previous fair use cases, such as the Campbell case over the parody of the song "Pretty Woman," which involved direct copying

In Campbell, the accused work (a rap parody song) used the same bass riff and an identical first line of Roy Orbison’s “Oh, Pretty Woman.” The parody also included exact copies of certain phrases in subsequent lines and maintained the same structure and rhyme scheme throughout. The copied elements served the same function in the accused work as in the original. Nevertheless, the Supreme Court acknowledged that the transformative purpose of parody had a “need to mimic an original to make its point,” and thus, warranted copying some exact elements. The question of the extent of the copying permissible to serve that function was the subject of the inquiry of the third statutory fair use factor. So too here.

Android did not merely incorporate the copyrighted work “as part of a broader work,” without any change to the purpose, message, or meaning of the underlying work. Android did not merely adopt the Java platform wholesale as part of a broader software platform without any changes. Instead, it integrated selected elements, namely declarations from 37 packages to interface with all new implementing code optimized for mobile smartphones and added entirely new Java packages written by Google itself. This enabled a purpose distinct from the desktop purpose of the copyrighted works — or so our jury could reasonably have found.

In light of the foregoing, our jury could reasonably have concluded that Google’s use of the declaring code and SSO of 37 API packages from the desktop platform work in a full-stack, open-source mobile operating system for smartphones was transformative.

The ruling goes on like this, over and over again pointing out that the jury's decision is not so crazy and has support in the law. And then it concludes with a big slap to Oracle, noting that it seems to be making completely inconsistent arguments:

Stepping back, it seems hard to reconcile Oracle’s current position with the one it took just as the trial was getting underway, namely, that fair use is an equitable rule of reason and each case requires its own balancing of factors. In its critique of the first proposed jury instructions on fair use..., Oracle argued that the Court’s draft characterization of the policy of fair use contravened the legislative history, and Oracle cited the following language from a Senate report on the 1976 Copyright Act (which language was repeated in the House Report):

Although the courts have considered and ruled upon the fair use doctrine over and over again, no real definition of the concept has ever emerged. Indeed, since the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts.

.... The Court adopted Oracle’s proposed instruction in the next draft as well as in the final charge to the jury, stating: “Since the doctrine of fair use is an equitable rule of reason, no generally accepted definition is possible, and each case raising the question must be decided on its own facts”....

Now, Oracle argues instead that this case must be decided as a matter of law, and not “on its own facts.” Oracle argues that Google’s copying fails to resemble any of the statutory examples of fair use listed in the precatory language of Section 107, again contradicting its earlier position that “no generally applicable definition is possible.”

Once again, much of this seems more addressed to the appeals court than the parties. Unfortunately, last time around that didn't work, as the appeals court got it wrong. Now we'll have to wait and see what happens this time around.

Filed Under: apis, copyright, fair use, java, matter of law, william alsup
Companies: google, oracle

Supreme Court Won't Hear Oracle v. Google Case, Leaving APIs Copyrightable And Innovation At Risk

from the dangerous-ruling dept

This is unfortunate, even if it was somewhat expected: the Supreme Court has now rejected Google's request to hear its appeal over the appeals court decision that overturned a lower court ruling on the copyrightability of APIs. The lower court decision, by Judge William Alsup (who learned to code Java to understand the issues), noted that APIs were not copyrightable, as they were mere methods, which are not subject to copyright.

The appeals court ruling, by the Court of Appeals for the Federal Circuit (CAFC) (famous for getting patent cases wrong over and over and over again) didn't just get things wrong, it got things laughably wrong, confusing the difference between APIs and software throughout, and quoting people entirely out of context (including taking things so out of context that it often pitted people on the same side against each other, solely because CAFC misread what they were saying). The case was appealed to the Supreme Court, and we were shocked and dismayed to see the Obama administration further reinforce the errors of the CAFC ruling in telling the Supreme Court not to hear the case. The filing by Solicitor General Donald Verrilli repeatedly confused software with APIs and insisted that there was really no difference between the two. That's just wrong. It's not a matter of debate. It's just wrong.

One would have hoped that with a ton of computer science experts explaining to the Supreme Court how CAFC got things wrong, the Supreme Court might recognize that the Obama administration was confused, but for whatever reason, the Supreme Court has declined to hear the case.

This is dangerous. The world of software and innovation relies on the kind of interoperability and the ability to connect via things like APIs. As we've noted, this is like claiming you can copyright an entire language, rather than the creative works written in those languages. Making APIs proprietary and locked up puts a ton of innovation at risk.

As for Google and Oracle directly, this probably doesn't matter much. They're two giant companies, certainly. And now that the case returns to the lower court, they'll either settle or fight it out over fair use (and hopefully win on that front as well). But saying fair use allows this is very, very different than saying there's no copyright on the API. And for smaller companies this will have a tremendous ripple effect, and will undoubtedly lead to a slower pace of innovation. The kinds of touchstones that people build on will no longer happen. Under this ruling, it basically overrules previous rulings that said pull down menus were not copyrightable. But with this ruling in place, it's hard to see how that's still true. Expect to see a bunch of ridiculous lawsuits over minor copying of functions like that.

While this case may eventually be resolved on fair use grounds (or through settlement), there are still two potential areas of hope. First, the "precedential" power of this ruling is actually somewhat limited. CAFC precedents are more or less meaningless in this context. CAFC handles all patent cases, and the only reason it heard this case was because it started as a patent case, even though those issues were resolved much earlier. So, while CAFC has made this particular ruling, it does not mean that the 9th Circuit, where this case was actually heard has to abide by it. The appeals court for the 9th circuit could rule otherwise (though it is somewhat famous for its own nutty copyright rulings).

Perhaps if this issue returns to another appeals court, and that court gets it right, the issue will return to the Supreme Court with a clear circuit split. And by then, we can hope, the people staffing the Solicitor's General office will finally include at least one person who understands the difference between code and APIs.

The really stunning thing in all of this is just how factually wrong many of the arguments were, and that the CAFC and Obama Administration bought them. These weren't questions of interpretation or opinion. They just flat out got the facts wrong, based on an astounding level of ignorance about a rather basic concept of an API not being software. Just because they both look like "code" does not make them both code. It would be nice if the people actually making these decisions weren't so easily fooled by their own ignorance.

Filed Under: api, apis, cafc, copyright, donald verrilli, scotus, software, supreme court, william alsup
Companies: google, oracle

Entire Court Discussion Of Feds Blocking US Citizen From Flying To No Fly List Trial... Redacted

from the sickening dept

We already wrote about the release of Judge Alsup's ruling in the Rahinah Ibrahim case. However, I wanted to do a second post, concerning one of the issues that first grabbed our attention about the case -- the fact that Ibrahim's daughter, a US citizen, was put on the no fly list and blocked from flying to the US to be a witness at the trial. The DOJ insisted that this was untrue and the daughter had simply missed her flight -- claims that were later proven to be outright lies. At the time, it appeared that Judge Alsup was not at all happy about this, and we hoped that this would result in some sort of sanctions or punishment for the federal government lying to a federal judge.

And, that whole incident is discussed in the ruling, but we have no idea what it says. Because the entire section is redacted. At the beginning of the filing, Judge Alsup notes about this incident that: "the snafu was the result of government error, albeit corrected quickly, as will be outlined at the end of the findings of fact." Then you jump to the section about "The Citizen Daughter" and you get a brief recap, noting that Ibrahim's daughter, Raihan Binti Mustafa Kamal, a US citizen, was blocked from getting on her flight to the US in Kuala Lumpur. And then you turn the page and get this: In other words, if Alsup did anything about this "snafu," we're unlikely to ever know about it, which seems fairly ridiculous.

Filed Under: dhs, doj, no fly list, rahinah ibrahim, raihan kamal, redacted, us citizens, william alsup

Court Says FBI Agent's Wrong Checkmark Put Woman On No Fly List, Barred Her From The US For 10 Years

from the ouch dept

We've been covering the case of Rahinah Ibrahim for a little while now. She's the Stanford PhD student who was wrongfully placed on the no fly list -- something that pretty much everyone admitted early on -- but because of that her student visa to the US was pulled, and every attempt she made to come back was rejected, leaving her unable to come back to this country for nearly 10 years. As we noted last month, it seemed clear that Judge William Alsup had ruled that the feds needed to remove her from the no fly list and any other terrorist watch lists, but it was a little unclear, since the full ruling remained under seal. That ruling has now been released in redacted form, and is well worth reading. Not only does it highlight massive bureaucratic bungling over a ten-year period, it also shows how disingenuous and dishonest the DOJ has been in handling the entire case -- even to the point of promising not to argue "state secrets" to kill the case, and then (of course) claiming "state secrets" and trying to kill the case just a few weeks later. Judge Alsup appears somewhat limited in what he can do in response to all of this for procedural reasons, but he makes it clear that he's not pleased about all of this and orders the government to confirm that Ibrahim has been fully removed from the various terrorist databases and lists, as the government has flatly admitted that they don't believe she poses any threat to national security.

In fact, the ruling highlights that this is all due to one FBI agent totally fucking things up back in 2004 -- and not even realizing he had done so until his deposition a few months ago. Alsup makes clear (and it seems everyone agrees) that the FBI agent, Kevin Michael Kelley didn't screw up maliciously, but he simply misunderstood the directions in filling out the form:

Agent Kelley misunderstood the directions on the form and erroneously nominated Dr. Ibrahim to the TSA's no-fly list [redacted]. He did not intend to do so. This was a mistake, he admitted at trial. He intended to nominate her to the [very long redaction]. He checked the wrong boxes, filling out the form exactly the opposite way from the instructions on the form. He made this mistake even though the form stated, "It is recommended the subject NOT be entered into the following selected terrorist screening databases."

And from that one screwup, basically a bureaucratic mess appears to have followed, and even if she was removed from that list (as is suggested elsewhere), once her name got into a series of connected databases, she effectively became toxic, and no one would allow her back into the US. So even though everyone now admits that she posed no threat to national security, when she applied for a visa to come back to the US, not only was it rejected, but the reason for the rejection was given as the code for "terrorist activities" (8 USC 1182 (a)(3)(B)) -- and to make matters even more insane, someone at the State Department helpfully scribbled "terrorist" on the form that was sent to her denying her entry. Judge Alsup notes just how incredibly disruptive this whole situation has been on Ibrahim's life, noting clearly that this has ended up depriving her of the right to travel, the right to be free from incarceration and the right to be free from stigma and humiliation of a public denial of boarding and incarceration. And while he orders the various databases to be cleansed of bogus information about Ibrahim, there's also a weird part of the order that is redacted, in that she's ordered to be told... something.

Given the Kafkaesque treatment imposed on Dr. Ibrahim, the government is further ordered expressly to tell Dr. Ibrahim [redacted] (always subject, of course, to future developments and evidence that might [redacted]). This relief is appropriate and warranted because of the confusion generated by the government’s own mistake and the very real misapprehension on her part that the later visa denials are traceable to her erroneous 2004 placement on the no-fly list, suggesting (reasonably from her viewpoint) that she somehow remains on the no-fly list.

It is true, as the government asserts as part of its ripeness position, that she cannot fly to the United States without a visa, but she is entitled to try to solve one hurdle at a time and perhaps the day will come when all hurdles are cleared and she can fly back to our country. The government’s legitimate interest in keeping secret the composition of the no-fly list should yield, on the facts of this case, to a particularized remedy isolated by this order only to someone even the government concludes poses no threat to the United States. Everyone else in this case knows it. As a matter of remedy, she should be told that [redacted].

Given that she should be told something, it seems utterly bizarre that what she should be told must be redacted.

The victory here is the first legal success in getting someone off of the no fly list, but it likely has limited use elsewhere, unfortunately. The case specifics are pretty narrow, and Judge Alsup makes it pretty clear that the government has a right to keep secret databases in which it forbids people from boarding airplanes. He notes that other cases will come along to take on those other issues, and we're sure to pay attention to them as they come up.

Filed Under: fbi, no fly list, rahinah ibrahim, william alsup