Here’s the full text of Dish’s statement:

“Sprint’s lawsuit is a transparent attempt to divert attention from its failure to deal fairly with Clearwire’s shareholders, as well as to exploit its majority position to block Clearwire’s shareholders from receiving a fair price for their shares. DISH is confident that its superior offer, which has been unanimously recommended by the Clearwire Board, including the majority appointed by Sprint, will be upheld and Clearwire shareholders will be free to realize the 29 percent premium represented by the DISH offer.”

Sprint’s lawsuit maintains that Dish’s bid — which represents a big premium over Sprint’s most recent offer — is illegal because it carries stipulations that violate Delaware corporate law and Clearwire’s shareholder agreements.

The irony of this situation is that Clearwire a year ago was a failing company with outdated WiMAX technology and neglected by its owners. Today it is the acquisition target of two of the biggest companies in the communications industry. Sprint already owns the biggest stake in Clearwire, but wants to consolidate its ownership before its pending acquisition by SoftBank. Dish wants to become a wireless carrier and needs Clearwire to break into the mobile industry.

Dish is also challenging SoftBank’s attempts to take over Sprint. So far the Sprint board has sided with SoftBank but it also gave Dish until today to submit a counter offer.

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Sprint has already claimed that Dish’s offer to take a 25 percent or greater stake in Clearwire is illegal under the corporate laws of Delaware, where Clearwire is incorporated. It now seems prepared to back up its claims before a judge.

Sprint is still Clearwire’s largest stakeholder, even though it doesn’t have direct control of the company. Sprint is claiming that Clearwire can’t accept an offer from Dish without its approval — approval it’s not prepared to give. Sprint also claimed that Dish is demanding veto powers and board seats that Clearwire has no right to give due to its equity holder’s agreement.

Sprint has been trying to buy up control of Clearwire since December, but it found thwarted by Dish at every turn. Clearwire originally backed Sprint’s bid, but in a surprising turn last week it switched allegiances.

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In a class action suit filed in San Jose, California, Debra Hilton claims that Apple knew about a defect in a flex cable that controls the on-off button, but chose to stay quiet about it so as to sell more phones.

As evidence, she points to Apple discussion forums viewed by hundreds of thousands of visitors on which users complain of “wiggly” power buttons. Hilton also points to a fix-it video on YouTube and comments by a self-described iPhone repairman who says the power button defect is prevalent on the iPhone 4 which went on sale in 2010.

Apple did not immediately return a request for comment.

The lawsuit claims that the defect typically arises shortly after one year at which point the warranty has expired, forcing consumers to pay $149 for repairs.

Hilton is suing under the RICO statute, a federal racketeering law that has become a vehicle for national class actions. The lawsuit also accuses Apple of violating California’s unfair competition laws.

You can read the complaint for yourself here:

Apple Power Button Lawsuit

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Anyone who’s had to have an iPhone replaced at an Apple Store Genius Bar is familiar with the process of checking for damage, which includes an employee using a tool to see if the device has ever gotten wet. It turns out that the water-detection method may not have provided totally clear-cut evidence. From Wired:

According to several lawsuits combined in San Francisco, no matter what the problem, Apple refused to honor warranties if a white indicator tape embedded in the phone near the headphone or charging portals had turned pink or red. However, the tape’s maker, 3M, said humidity, and not water contact, could have caused the color to at least turn pink.

The lawsuit covers older iPhones and iPod touch devices, and the petitioners may get around $200 cash payout each. That might be a somewhat meaningful amount for customers who had to pay for another phone. But the total, $53 million, is a drop in the bucket for a company with about $140 billion on hand.

Image courtesy of Flickr user JD Hancock via Compfight cc

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Class action lawyers had earlier demanded that Isaacson provide evidence, based on his interviews with Steve Jobs, about why Jobs asked publishers to sell books on Apple’s iPad device. Isaacson refused to hand over his notes and invoked a New York law that allows journalists to shield their sources in many situations.

The lawyers, who want Apple to pay for allegedly fixing book prices, had subpoenaed Isaacson and said the reporters’ shield did not apply. Last week, however, court documents show the parties agreed to drop Isaacson from the case.

The Isaacson dispute comes at a time when Apple’s antitrust showdown with the Department of Justice and class action lawyers is coming to a head. While the five publishers who were also named as defendants decided to settle, Apple is rejecting the accusations that it acted as the hub for an illegal conspiracy to raise book prices and thwart Amazon. Meanwhile, Amazon executives are poised to testify against Apple.

Even though the Isaacson biography is no longer part of the case, a court transcript shows Steve Jobs will remain a central figure. In response to a question about who decided to sign contracts with book publishers, Apple executive Keith Moerer said, “Ultimately, I would say it was — Steve. But working closely with — with Eddy, Mr. Cue.”

Meanwhile, other recently filed court documents identify one recipient of a highly publicized Jobs email about Amazon and pricing — the recipient was James Murdoch, a senior executive at News Corp, parent company of HarperCollins. The other recipient(s) are still redacted. You can see the email below:

Steve Jobs Emails by

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Businesses or individuals that communicate regularly about their industries, local happenings, or public policy – or that take any sort of stand on any of these matters – can find themselves facing defamation lawsuits that are intended simply to intimidate and silence a voice. Such suits are common enough to have a moniker: “SLAPP” suits, or Strategic Lawsuits Against Public Participation.

Easy to file, and easier still to threaten, it’s difficult to get even the most frivolous case dismissed without incurring serious time, cost and stress.  And as each side bears its own costs in most civil litigation in the U.S., a deep-pocketed opponent can use the threat of financial ruin to get a less-well-heeled opponent to fold in the face of even a completely meritless defamation case. It’s time that the Federal government join states in taking action to protect individuals and businesses from this unnecessary threat.

A clear cut case

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Veteran tech blogger Lauren Weinstein describes this risk well in a recent blog post, in which he calls what the government of France is doing “extortion,” and warns of the long-term risk of Google acceding to such demands that it pay for the simple act of linking and excerpting content:

“There is little evidence to suggest that ‘paying off’ a party making unreasonable demands will do much more than quiet them for the moment, and they’ll almost inevitably be back for more. And more. And more. Even worse, caving in such situations signals other parties that you may be susceptible to their making the same (or even more outrageous) demands, and this mindset can easily spread from attacking deep-pocketed firms to decimating much smaller companies, organizations, or even individuals.”

As my colleague Jeff Roberts noted in his post on the Google settlement, the French originally wanted the company to pay as much as $100 million, and wanted almost all of that to go into a fund that publishers could use for their own purposes, rather than into ad buying or other joint ventures. And he also noted that with the latest deal — which comes on the heels of a similar settlement with Belgium — Google is sending a very obvious message to other countries such as Germany that it is prepared to pay.

Google’s tactics set a dangerous precedent

This may make sense for Google, since it is trying to avoid as much litigation as possible, and wants to be on good terms with European countries (where it has already run into multiple roadblocks and barriers around services like Street View and privacy concerns). But I think Weinstein is right when he argues that this is only going to encourage countries like Germany — and plenty of others as well — to assume that if they push Google on the subject of linking, they will get cash.

Google wants these payments to be seen as a helping hand to publishers, which is why the fund is described as “supporting digital publishing initiatives,” and why it puts so much emphasis on the strategic partnership angle. But regardless of the picture it is trying to paint, the settlement is being described by many as a “pay for links” deal, and that perception is dangerous. As Weinstein puts it:

“France’s complaints regarding Google related to activities that are absolutely part and parcel of the fundamental and fully expected nature of the open Internet when dealing with publicly accessible Web sites [and its] success at obtaining financial and other concessions from Google associated with ordinary search and linking activities sends a loud, clear, and potentially disastrous message around the planet, a message that could doom the open Internet and Web that we’ve worked so long and hard to create.”

In other words, this issue is much bigger than just Google. While it may serve Google’s purposes to settle with France and Belgium, and perhaps other countries as well, all that does is encourage other governments and companies to see payment for links as an appropriate strategy. How long until U.S. newspapers and publishers start to argue the same thing? What about other companies? Director Harvey Weinstein (no relation to Lauren) said in a recent interview that the U.S. should have legislation to make this a reality — and Google is helping that kind of thinking gain momentum.

It’s cruelly ironic that the company spent so long arguing (correctly) that excerpts of books were fair use in its long-running legal battle with book publishers and authors — a battle in which at least one court has agreed with the company — and now here it is paying newspaper publishers for what is fundamentally the same practice. It’s a short-sighted appeasement strategy, and we could all be the worse for it.

Post and thumbnail images courtesy of Shutterstock / Alexander Santander and Flickr user Affiliate

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According to Ericsson, Samsung entered into a licensing agreement with Ericsson in 2001 for the latter’s 30,000 patents relating to technologies ranging from Wi-Fi to GSM and LTE. They renewed the agreement in 2007, but after failing to reach a third renewal agreement following two years of negotiations, Samsung let the deal expire, Ericsson chief intellectual property officer Kasim Alfalahi said in a phone interview.

Alfalahi said that Ericsson has more than 100 cross-licensing deals with vendors across the industry, all with similar terms it has offered Samsung. Ericsson’s suit, filed today in a U.S. district court in Texas, is demanding THAT Samsung pay licensing fees in arrears and damages for willfully infringing its patents. If Samsung refuses to accept new a cross-licensing agreement, Ericsson wants an injunction against Samsung selling any equipment based on its patents, Alfalahi said.

These kind of licensing dust-ups are part and parcel for the telecom industry, which relies heavily on standards to build global networks. Though no single company controls the standard itself, they do own patents to the individual technologies and techniques that make up the standard. Consequently no vendor can build a phone or design a network without using the intellectual property of multiple competitors.

To prevent a single patent holder or group of holders from mucking up the standard, vendors are supposed to cross-license their intellectual property under Fair, Reasonable And Non-Discriminatory (FRAND) terms. Obviously how FRAND is quantified can vary considerably depending on how each company values its own patents. The result has been a lot of blood spilled over licensing fees, as evidenced by the epic battles between Qualcomm and Broadcom in the last decade. The nastiness of those patent wars have led companies like Apple and Google to buy up the patent portfolios of faded wireless giants like Motorola and Nortel in order to bulwark their intellectual property defenses.

“Our patents give us a right to exclude others, but with open standards we have all committed to license openly,” Alfalahi said. “We feel confident that we have given Samsung an offer we feel is FRAND. We feel any judge is going to see our offer as FRAND.”

Samsung’s fight with Ericsson is different from its battle with Apple because instead of focusing on handset design it revolves around core wireless technologies; in particular, infrastructure, a field in which Samsung was a minor player for most of its history. Samsung, however, has been asserting itself in the networking space in recent years, breaking into both the U.S. and European markets with huge contracts from Sprint and 3 UK. Not only are North America and Europe traditionally Ericsson turf, but Samsung’s recent success means the stakes are higher for both companies. The more equipment Samsung sells, the more of its revenue it has to pay out to its licensors. And Samsung has some big ambitions. It recently made the rather audacious claim it will become the No. 3 infrastructure vendor in the world.

We’ve only heard from Ericsson on this spat, though we’ve reached out to Samsung for comment and will update this post when we hear back. The disagreement is likely much less one-sided than Ericsson makes it appear since these deals are never one-way licensing agreements. Samsung is still a major player in the wireless world and has a huge patent portfolio of its own. That means Ericsson has to license Samsung’s intellectual property as well. Expect to see a counter-suit soon.

Featured image courtesy of Flickr user opensourceway; Gavel image courtesy of Shutterstock user zimmytws.

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There are elements of the Hathi Trust decision that make it different from the issues raised by the Google case, since it involves universities rather than a corporate entity, but the bottom line is that a federal court has decided scanning of books for search purposes is not an infringement of copyright — or rather that this activity is covered under the principle of “fair use,” and therefore should be allowed to continue. And in my opinion (and that of many others) the court was right to do so.

Some authors and publishers clearly don’t like the concept of fair use as it applies to books, because they believe it infringes on their rights as creators and owners of intellectual property — that is, the right to control whatever happens to their work, in any context. But the court reiterated that fair use exists for a crucial reason: namely, to allow others to transform and re-use parts of copyrighted works for artistic or other socially-beneficial purposes. And whether the Guild likes it or not, scanning books so that they can be indexed and searched clearly falls within that description.

The court accepted the fair-use case without a trial

One sign of how clearly the court believes this is that Judge Harold Baer’s decision was a summary judgement, meaning he didn’t think there was any point in even going to trial to argue the details of the case. As a post at the Copyright Librarian points out, “winning on summary judgment means the court agrees your arguments are a slam-dunk.” In his decision (which is embedded in full below), the judge says:

“Although I recognize that the facts here may on some levels be without precedent, I am convinced that they fall safely within the protection of fair use… I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ MDP and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts.”

The parts of the Hathi Trust case that make it distinct from Google’s battle with the Authors Guild have to do with the purposes for which the books were being scanned. For example, Judge Baer found that protecting old works from physical deterioration by scanning them was a “transformative use” (one of the four factors the courts take into account when deciding whether something should qualify as fair use), and that making digital books available for the use of visually impaired and other handicapped users was also an important element of the program.

Those kinds of arguments likely wouldn’t hold as much weight for Google itself, except as they apply to scholarly works that are provided to universities and projects like the Hathi Trust. A big part of the Authors Guild case rests on the fact that Google is a corporation with a profit motive, and therefore shouldn’t be allowed to scan copyrighted books without permission, even if its index makes them easier for buyers to find and purchase (Google also shows excerpts or “snippets” for all of the books that it scans, while the Hathi library only shows excerpts for public-domain books).

Indexing books for search is clearly fair use

But even here, the Hathi Trust case provides a substantial amount of ammunition for Google’s defence, because Judge Baer ruled that scanning books for the purpose of indexing them and making them searchable was an important transformative use — something that has also been found in other similar copyright-infringement cases against Google (such as the Perfect 10 lawsuit involving the use of thumbnail images). And that transformative use, he suggested, outweighs other factors such as the potential impact on the commercial market for the works in question.

Quoting from a previous court decision, Judge Baer said: “A copyright holder cannot pre-empt a transformative market.” And he dismissed the Authors Guild argument that scanning and indexing a book doesn’t qualify as a transformative use because it copies the entire book exactly, rather than making use of a part or adding something to the original work:

“The use to which the works in the HDL are put is transformative because the copies serve an entirely different purpose than the original works: the purpose is superior search capabilities rather than actual access to copyrighted material… Plaintiffs’ argument that the use is not transformative merely because defendants have not added anything ‘new’ misses the point.”

In the end, Judge Baer said that his decision was determined by the original goal of copyright law, which is to promote research and knowledge. As he put it: “The ultimate focus is the goal of copyright itself [and] whether ‘promoting the Progress of Science and useful Arts would be better served by allowing the use than by preventing it.’” His ruling makes it clear that the Hathi Trust project met that test, and based on his arguments there is every reason to believe that Google could win its case on similar grounds — and that would be in everyone’s best interests, as much as the Authors Guild would like to believe otherwise.

Post and thumbnail images courtesy of Flickr users Marcus Hansson and Marya

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As my colleague Jeff Roberts has reported, this case was launched by Apple against Samsung last year, based on what Apple said was Samsung’s wilful infringement of software-related “utility” patents and four design-related patents it holds for the iPhone and iPad. According to Apple, the company’s smartphones — including the Nexus S, Epic 4G and Galaxy S 4G — copied elements of the design and functionality of Apple’s iPhone models, and the Samsung Galaxy Tab copied design and functional aspects of the iPad. In its statement of claim, which contained drawings that jurors relied on to decide the case, Apple said:

“Rather than innovate and develop its own technology and a unique Samsung style for its smart phone products and computer tablets, Samsung chose to copy Apple’s technology, user interface and innovative style in these infringing products.”

Did Apple really suffer because of another phone’s shape?

From a legal point of view, there appear to be a number of questionable factors involved in the jurors’ decision in this case, at least according to Groklaw, including a debate over whether the jury actually understood the specifics of what they were being asked to do, and whether they ignored certain aspects of the case in their desire to penalize Samsung. That could lead to the case being successfully appealed, but even if it isn’t, or if the appeal fails, the Apple-Samsung decision adds even more weight to the argument that software and design patents are evil and that the entire patent process is badly flawed — if not broken.

As part of the case, Apple obviously argued that it suffered irreparable harm from Samsung’s alleged copying of its design and functionality. But has it really suffered competitively? It’s hard to see how, considering the company is the world’s most valuable publicly-traded entity, with a market value of over $600 billion, and its mobile products are the market leaders in almost every category. How much more successful could it possibly be? And now, the legal ruling gives it even greater power to beat up on Google and Android — is that really a win for the technology industry or for society as a whole? It’s difficult to see how (and let’s not forget that Apple doesn’t need software patents to protect it from knock-offs — it has trademarks, trade dress and a series of other legal tools that will do that too).

Defenders of the case, and of patent laws in general, would likely argue that it doesn’t matter how large or successful Apple is: the point is that Samsung did something wrong. But what exactly do we mean by this statement? Two of the design patents involved in the case describe the way in which the iPhone is rounded at the corners and flat on the top, and another refers to the way that icons appear on the screen. Among the utility patents involved are those related to the “bounce back” or “rubber band” feature in some of Apple’s apps — in which the screen rebounds after the user pulls it in one direction or another — and to the “pinch to zoom” functionality used for images.

One designer said that the pinch-too-zoom gesture has become so ubiquitous for mobile devices and apps of all kinds that it is like claiming ownership over the idea of a circular steering wheel. Would we be better off if one company controlled the rights to the steering wheel and could charge huge sums to all manufacturers for using that design element? Probably not. But Apple could now do this with pinch-to-zoom, as well as other design and utility features, giving it an even bigger lock on the mobile device business than it already has — despite the fact that there is evidence that similar gestures existed before Apple patented them.

Update: Nilay Patel at The Verge notes that none of the patents in the Apple-Samsung case specifically refers to the pinch-to-zoom process, although several cover related multi-touch elements of the interface and one covers the tap-to-zoom gesture.

Software patents are nuclear weapons, not defences

Even if you accept that Apple did something unique and revolutionary with the zoom feature that deserves to be protected by the full force of the law, should it have the same rights to a series of icons that are lined up in a specific way on a mobile device? Or to the fact that its device has a rounded screen, or that a window which pops up on top of another window fades away automatically over time? Or the fact that one of its iPhone icons happens to look like a gear, and another looks like a pad of paper? These are the kinds of things software and design patents can refer to.

The fact that software patents can apply to such obvious-looking or even trivial applications of design and usability is why some have described them as evil, and “a cancer” on the economy and society in general. Others have warned for several years about the coming of a software patent “apocalypse” created by multibillion-dollar technology giants accumulating software patents. And in the end, these cases do little to promote any kind of useful innovation — instead, they just tie up the courts and give some companies a nuclear arsenal they can use to attack competitors.

Even some judges — such as the one who recently ended Apple’s patent lawsuit against Google-owned Motorola — have questioned whether certain industries that already experience plenty of innovation (such as the mobile phone business) need to be protected by patents at all, including software and design patents. And research by Harvard’s Berkman Center for Internet and Society has shown that software patents have provided little or no net social benefit over the past decade, despite billions in lawsuits and various legal victories.

In the end, the important question isn’t whether Apple was right to sue Samsung, or whether the Korean manufacturer directly copied elements of Apple’s design for its phones — the question should be what is gained by allowing companies to launch multibillion-dollar cases involving the shape of icons or the swiping motion that users employ to switch pages.

Post and thumbnail images courtesy of Flickr user Stefan

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