Today the Third Circuit denied Comcast's request for the whole court to rehear its appeal in Behrend v. Comcast Corp., No. 10-2865 (3d Cir. Sept. 20, 2011).
Blawgletter noted the panel's 2-1 ruling on August 23 that the district court did not err in granting class treatment of the antitrust claims against Comcast.
You know that word choice matters. Twain's lightning versus lightning bug comes to mind.
What about spelling? Well, the tumult over a key part of a way to complete a sideways oil and gas well shows that spelling matters too.
The Supreme Court of Texas explains the process thus:
As in other shale formations, wells in the Barnett Shale [area of northern Texas] require fracture stimulation in order to produce. Fracing a well entails pumping large volumes of water and sand into reservoir rock, which then mixes with saline formation water and must be flowed back out of the well before production can begin. A company fracing a well must dispose of the resulting waste.
Railroad Com'n of Texas v. Citizens for a Safe Future, 336 S.W.3d 619 (Tex. 2011).*
Note the "fracing". Sounds like fray sing? Nay. Frack-ing. Fracking.
Why does the Court use "fracing" instead of "fracking"? Most other writers about the technique go with the "frack" method. See, e.g., www.frackinginsider.com; Wikipedia; Gasland; WSJ.
People who question or oppose hydraulic fracturing tend to include the "k". NYT items do. Indeed, they often add "hydro" as well — as in "hydrofrack" or "hydrofracking".
Without the "k", the word seems almost benign. With it, it sounds less so. And with the "hydro" prefix? Pretty darn bad.
Bonus: Arrrrgh, me hearties – Happy Talk Like a Pirate Day!
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* The Court in an older case noted that someone "[f]irst used" "[f]racing" "commercially in 1949". Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1, 7 (Tex. 2008) (holding that rule of capture barred claim for trespass).
Raise your hand if this has ever happened to you:
The other side thinks your client so plainly — and evilly — copied software source code that their lawyers can't imagine losing. They have such clear proof, they believe, they almost sneer at you. And the smugness infects all that they do in the case.
If you put your arm up just now, you may see the train coming. Yes, the folks who have your client dead to rights and can't lose will in short order manage to destroy their copyright infringement case in epic fashion.
How, you ask? Simple: They forget to compare the software code they registered copyright in with the code they claim your client copied.
That very thing snatched defeat from the jaws of victory in Airframe Systems, Inc. v. L-3 Communications Corp., No. 10-2001 (1st Cir. Sept. 14, 2011). Airframe accused a software customer, L-3, of infringing Airframe's copyright in software that Airframe had at one time licensed to L-3. (The software seems to have helped high-flying L-3 track maintenance of its aircraft.) Airframe registered copyright in old versions of the source code (from the 1980s) but not the 2009 one. And yet Airframe's sole evidence of copying by L-3 compared not the versions Airframe had registered but one from many years later. The district court granted L-3's motion for summary judgment on the ground that Airframe had failed to raise a fact issue on the "copying" element of its infringement claim.
The First Circuit affirmed:
Here, the only evidence of copying Airframe presented was [Airframe president Gordon] Rosen’s declaration. Rosen made no direct comparison between the allegedly infringing M3 program [that L-3 used] and the ARMS source code versions covered by Airframe’s copyright registrations, as would normally be done. Rather, he compared the M3 program to the updated 2009 version of the ARMS source code. While this would support a finding of substantial similarity between the M3 program and Airframe’s “current” source code (i.e., the 2009 ARMS source code), there is no claim that the 2009 source code was itself registered or that the 2009 version is the same as one of Airframe’s earlier registered versions–the 1981 “IBM version,” 1984 “PC version,” or 1988 “UNIX version.” Rosen’s declaration said nothing about similarities between the 2009 ARMS version and Airframe’s earlier registered ARMS versions. Indeed, Airframe admits that they are in fact not the same, because the 2009 source code is a version “that had been updated by Airframe in the ordinary course of business.” Appellant’s Br. 15. Having presented no evidence sufficient to prove the content of its registered source code versions, Airframe cannot show that any of its registered works is substantially similar to the allegedly infringing M3 program, and Airframe has failed to create a genuine issue of material fact as to its claim of copyright infringement.
Id. at 10-11 (footnote omitted).
The chain works like this:
The online hawkers of handbags bearing the label of a famous high-end maker get their website services from a firm that "hosts" the websites (running the servers, granting "bandwidth", and giving IP ("Internet protocol") addresses) — all for a fee. The hosting firm in turn obtains the servers, bandwidth, and IP addresses under leases from an outfit that owns them.
Hawker-hoster-owner.
The problem comes because the handbag sellers use fake copies of the maker's label to make their goods more buy-worthy. But the maker had has registered the label/mark with the United States Patent and Trademark office. And the maker very much wants to protect his good name.
Who can Louis Vuitton sue for trademark infringement?
LV has a no-doubt-about-it claim for "direct" infringement against the online handbag hawkers. But good luck chasing them down. They reside in China and have no U.S. presence or assets.
What about the third link in the chain — the people who own and lease the servers, bandwidth, and IP addresses from their offices in San Jose, CA? Can LV tag them for label larceny?
And what of the middle link — the American firm that hosts the websites?
The Ninth Circuit held that Monsieur Vuitton has a shot at showing "contributory" infringement of his trademarks by both the hoster/lessee and the owner/lessor. But, the panel ruled, he had to show that each supplied its services to the direct infringers with knowledge of their infringing conduct while having the ability to stop the direct infringers from using their services to infringe.
LV failed to prove at trial that owner/lessor Managed Solutions Group had any means to stop the Chinese firms' infringing acts, the Ninth Circuit ruled. But Akanoc Solutions, the hoster, could have shut down the infringement after getting Vuitton's demands that it do so. The court thus affirmed the district court's axing of the claims against MSG and entry of judgment against Akanoc for contributory infringement. Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc., No. 10-15909 (9th Cir. Sept. 12, 2011).
Four years ago, Blawgletter wrote about a Second Circuit ruling that rejected claims by workers at Ground Zero for the harm that resulted from breathing toxic air in the aftermath of the 9/11 attacks. We said:
The Second Circuit yesterday affirmed dismissal of claims that the federal government deliberately misrepresented the safety of working at Ground Zero without respiratory equipment. The five plaintiffs performed search and rescue operations after the 911 attacks. They alleged that exposure to asbestos and other hazardous substances injured them or put them in reasonable fear of harm. The government's false statements exhibited deliberate indifference to their health and safety, they asserted, and constituted violation of their substantive due process rights under the Constitution. Lombardi v. Whitman, [485 F.3d 73] (2d Cir. 2007).
The court of appeals applied a "shock the conscience" standard to the complaint. The government's conduct didn't shock the "contemporary conscience" because, the court ruled, the Environmental Protection Agency director and other officials sought to "avoid panic, keep order, restore services, repair infrastructure, and preserve the economy" during a time of profound uncertainty and upheaval. That the officials could have protected these selfless people by providing them with respiratory equipment (or even telling them they needed it) didn't alter the court's conclusion.
Does the government's behavior shock you? It does Blawgletter. Instead of knowingly and falsely assuring brave men and women that the air at Ground Zero wouldn't harm them, the EPA director could easily have told them the truth. Blawgletter cannot imagine that knowledge of the truth would have diminished one whit the responders' devotion to their patriotic duty. The needless heaping of tragedy upon tragedy goes beyond stupidity. It indeed shocks the conscience.
Let us hope the government finds another way to take care of these intrepid souls.
[We don't know if the workers got any help with their injuries. Do you?]
Our April 2007 post included a Ground Zero photo from September 23, 2001. See it just below.
In May of this year, we visited a friend who works in an office near the foot of Manhattan. He took us up to the top floor of his building, and from there we took a photo of the rising One World Trade Center.
The area looked so different we hardly recognized it. We didn't realize until today, when we compared the photos for the first time, that you can see the same building on the right-hand side of both photos. And in the one below, just to the right of One World Trade Center, you can find the square footprint of one of the Twin Towers.
[To see photos, animations, and other information about the 9/11 Memorial, go here.]
What effect has 9/11 had on the law in America? How has the law improved? How has it gone the other way? And do we like the result?
What do you think, gentle reader?
Yesterday, the U.S. Senate okayed the patent reform bill that passed the House on June 23, 2011. The now almost-law goes by the "short title" name "Leahy-Smith America Invents Act". The Senate voted 89-9 in favor.
The White House hasn't issued a statement about the Senate action, but on the eve of the vote President Obama's Office of Science and Technology Policy put out a blog post that hailed the L-S AIA:
I am hopeful that the President will have the opportunity to sign this historic legislation in the coming days in support of his Strategy for American Innovation — which, above all, aims to create jobs of the future in 21st century industries. Unlocking the potential of U.S. inventors will help America out-innovate, out-educate, and out-build the rest of the world.
Note the mention of "jobs".
To Blawgletter's eye, section 19 (of the 37-section bill) looks the most likely to affect how patent holders approach cases claiming infringement. The section deals with "jurisdiction and procedural matters", which in brief concern removing cases that involve patent issues from state to federal court and joining more than one defendant in a single case. The changes in section 19 will make removal easier and better for defendants and reduce the number of patent cases that involve a great many defendants that have nothing in common other than a claim that they infringed the same patent.
We had to save the banks in order to sue them.
Jonathan Weil, "Suing Banks is Next Best Thing to Letting Them Fail", Bloomberg, Sept. 8, 2011 (referring mainly to Federal Housing Finance Agency lawsuit against 17 banks relating to "sale of residential private-label mortgage-backed securities").
Man sitting at desk, talking on a telephone:
Why is everyone's valuable input so stupid?
BEK, The New Yorker, July 11-18, 2011, at 66.
Dang. The Antitrust Division has teeth after all.
(Blawgletter called it in March, by the way.)
Per the WSJ, the AD sued to enjoin the deal for AT&T to acquire T-Mobile.
The pact would create the biggest, baddest, anticompetitivest wireless firm in the U.S.
The Division's press release said:
The department’s lawsuit, filed in U.S. District Court for the District of Columbia, seeks to prevent AT&T from acquiring T-Mobile from Deutsche Telekom AG.
“The combination of AT&T and T-Mobile would result in tens of millions of consumers all across the United States facing higher prices, fewer choices and lower quality products for mobile wireless services,” said Deputy Attorney General James M. Cole. “Consumers across the country, including those in rural areas and those with lower incomes, benefit from competition among the nation’s wireless carriers, particularly the four remaining national carriers. This lawsuit seeks to ensure that everyone can continue to receive the benefits of that competition.”
“T-Mobile has been an important source of competition among the national carriers, including through innovation and quality enhancements such as the roll-out of the first nationwide high-speed data network,” said Sharis A. Pozen, Acting Assistant Attorney General in charge of the Department of Justice’s Antitrust Division. “Unless this merger is blocked, competition and innovation will be reduced, and consumers will suffer.”
Mobile wireless telecommunications services play a critical role in the way Americans live and work, with more than 300 million feature phones, smart phones, data cards, tablets and other mobile wireless devices in service today. Four nationwide providers of these services – AT&T, T-Mobile, Sprint and Verizon – account for more than 90 percent of mobile wireless connections. The proposed acquisition would combine two of those four, eliminating from the market T-Mobile, a firm that historically has been a value provider, offering particularly aggressive pricing.
According to the complaint, AT&T and T-Mobile compete head to head nationwide, including in 97 of the nation’s largest 100 cellular marketing areas. They also compete nationwide to attract business and government customers. AT&T’s acquisition of T-Mobile would eliminate a company that has been a disruptive force through low pricing and innovation by competing aggressively in the mobile wireless telecommunications services marketplace.
The NYT quoted AT&T as saying it will “vigorously contest this matter in court.”
AT&T's press release says:
We are surprised and disappointed by today’s action, particularly since we have met repeatedly with the Department of Justice and there was no indication from the DOJ that this action was being contemplated.
We plan to ask for an expedited hearing so the enormous benefits of this merger can be fully reviewed. The DOJ has the burden of proving alleged anti-competitive affects and we intend to vigorously contest this matter in court.
At the end of the day, we believe facts will guide any final decision and the facts are clear. This merger will:
We remain confident that this merger is in the best interest of consumers and our country, and the facts will prevail in court.
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Blawgletter doesn't often give high marks to newspaper editors on the quality of the facts they offer in support of their opinions. The lead editorial in today's issue of The Dallas Morning News — on "patent trolls" — should thus not have come as a surprise.
Yet it stuns.
Start with the title. "Patent trolls get rich by killing jobs and robbing consumers" makes you wonder if the act of job-killing really earns a profit. How does that work, exactly? Does the dead job itself fork over the money? Or does the person whose job became one with the infinite do it?
We can see how "robbing consumers" could pay, but we don't get the mechanism. The theft must take an indirect route, we guess.
And it does. "Ultimately," the editorial says, "the billions spent on patent purchases are passed on to consumers in the form of higher prices."
The evidence?
The News cites Google's $12.5 billion buy of Motorola Mobility for its portfolio of "17,000 active and pending patents that Google needs to protect its products from death-by-a-thousand-patent lawsuits." Also Nortel's sale of its patents to Apple and Microsoft for $4.5 billion.
So, let's get this straight. We need patent reform because Google, Apple, and Microsoft didn't actually need the patents to gain a competitive advantage — they bought them mainly to fend off patent trolls? Really?
The tech community doesn't appear to share that view. They seem to believe Google will use the Motorola patents to protect its products not against marauding by patent trolls but against real head-to-head competition by the likes of — you guessed it — Apple and Microsoft. And we think we know why Apple and Microsoft acquired the Nortel stuff. They, too, want to bolster their market power.
What else? Ah. The editorial starts by making fun of a patent that tells you how to "refreshen[] a bread product by heating the bread product". Pretty goofy, right? Almost keeps you from wincing when the News ends by saying "you're . . . toast" if you don't get ready to fight the patent trolls.
Except the editorial leaves off the next part of the sentence — "to a temperature between 2500.degree. F. and 4500.degree. F". Steel melts at about 2,500 degrees Fahrenheit. Don't try to "refreshen" your biscuits in a steel furnace at home!
But what really gets us shows up in the editors' tale of how a patent troll "shell company" in Marshall, Texas, "killed" the "entrepreneurial dream" of a Dallas-area "entrepreneur". (The News notes it borrowed the story from a July 22 broadcast of This American Life.) "Everything collapsed" for the co-founder of FotoTime, an online photo-sharing service, when he got a menacing letter from the troll.
Very sad, yes? And yet the killing of the entrepreneurial dream might surprise FotoTime, which seems to have survived the blow pretty well.
Nor do we find in the editorial much beyond bluster on what to do to solve the problems the editors suppose. The obvious solution — banning ownership of a patent by firms that don't "practice" the invention — strikes us nutty. Also a bit weird for a newspaper that puts a high value on property rights.
Making patent suits less costly to defend seems a far better idea. Let's do that.
One way to head in that direction would take a page from firms that handle plaintiffs' cases — a fee contingent on the outcome. The defense firm charges no fee unless the client gets out of the case for less than $X. The firm then receives a percentage of the savings. That better aligns the firm's interests with the client's and protects the client against the threat of ruinous cost.
See "How to Negotiate a Reverse Contingent Fee".
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