The study, which was commissionedby the Government Accountability Office, is encapsulated in a Duke Law and Technology Review article titled “The America Invents Act 500: Effects of Patent Monetization Entities on US Litigation.” The authors — Sara Jeruss of Lex Machina, Robin Feldman of the University of California, Hastings, and Joshua Walker of Simpson Thacher & Bartlett LLP (and founding CEO of Lex Machina) — analyzed 500 random patent lawsuits since 2007 (100 per year) and concluded the number filed by suspected patent trolls (called “monetizers” in the study) rose from 22 percent in 2007 to almost 40 percent in 2011. Of the five biggest lawsuit filers among their sample set, four are monetizers.

This increase shouldn’t be surprising.  Our Jeff Roberts regularly covers such lawsuits in the technology world, including recently filed cases against Foursquare; a power trio of Facebook , Walmart and Disney; and pretty much everyone who built a product based on Hadoop. It’s this state of affairs that has spurred U.S. appellate judge Richard Posner to call the patent system dysfunctional, and has researchers, entrepreneuers and even Google devising methods to improve it.

Source: Jeruss et al. Suspected monetizers and individuals/trusts fall under “monetizer” label.

The problem could be particularly bad online. A 2012 Stanford Technology Law Review article found that patents relating to the internet are litigated almost 10 times more than non-internet patents. In a GigaOM post on Monday, Twitter General Counsel Ben Lee described a recent trial victory over a patent troll and said his company has been hit with three lawsuits from trolls in the past month and a half alone.

However, the new study notes, an increase in patent lawsuits can’t possibly account for what must be an extraordinary number of threats, forced licensing deals and other legal tactics that never make their way to court:

“Based on anecdotal evidence, albeit a mountain of such anecdotes, the vast majority of monetization activity never progresses to the point at which the patent holder actually files an infringement lawsuit. Given the costs of litigating infringement suits, the uncertainty of the outcome, and the potential for outsized judgment awards, companies may capitulate to a patent monetizer’s demands, rather than face the ordeal of a trial.”

A recent survey from the American Intellectual Property Law Association found the median cost of legal fees in a patent litigation ranges from $650,000 to $5 million depending on how much money is at stake. And researchers at Boston University recently concluded that patent trolls are have drained $500 billion from the economy since 1990.  A proposed law, which Twitter’s Lee supports, would force patent trolls to pay defendants’ legal fees if defendants prevail.

Although the “America Invents Act 500″ authors note there are limitations to their study and methodology, it would appear their classifications of operating entities (i.e., companies actually using patents) and monetizers is accurate. They note the concentration of lawsuits brought by monetizers in the plaintiff-friendly Texas federal court system, as well as the outcome of cases brought by trolls. That group is more likely to settle rather than go to trial, and more likely to get their claims dismissed via summary judgment or default judgment.

Source: Jeruss et al

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On copyright

Paul seems to understand the problems surrounding copyright enforcement online, right down to his reasons for opposing SOPA. It wasn’t so much what SOPA was trying to do in terms of shutting down pirate sites or forcing companies such as Google to act in some cases, as much as it was about the lack of due process in making these things happen. “There almost needs to be a trial …” he said. “It shouldn’t be just one person complaining to another website and all of a sudden the web site is shut down.”

Paul even suggested the idea of a federal court process through which copyright-holders could go to ask for fast adjudication on their claims of infringement, presumably to balance out concerns over high legal costs with the need for due process. I’ll assume, then, his defense of the YouTube model for content removal (and, by proxy, the Digital Millenium Copyright Act) is just a matter of not really understanding that law. Under the DMCA, complaints lead directly to takedowns or, in some cases, expensive trials that destroy companies and business models that end up being on the right side of the law.

In response to an audience question, Paul noted there’s room for debate over the length of copyrights and patents to balance out innovation and consumer protection with creators’ needs to monetize their inventions. The real question, however, which Paul didn’t address, is how we amend copyright and patent law to address new technologies and modes of delivering content.

On privacy

If the recently defeated Cybersecurity Act of 2012 really was problematic privacy-wise, as even Sen. Ron Wyden (D-OR) thinks it was, Paul was right to vote against it. He’s also right to stand up for consumer rights, claiming that any bill offering immunity against lawsuits to companies that share user data with the government will essentially protect those companies should they decide to breach contractual terms about data sharing. Consumers make considered choices when selecting service providers, he said, but “you don’t have a choice to make a contractual arrangement with our government.”

However, because signing up for services from companies such as Google, Facebook or any other web company requires voluntarily agreeing to its terms of service and privacy policies, Paul said they have access to whatever you grant them. I’m not for obtrusive privacy regulations that will unduly limit innovation and perhaps drive up the costs of services, but some rules and regulations laying out what companies can do with user data — and how they explain those uses in their privacy policies — probably aren’t the worst things in the world.

On the legislative process

Paul doesn’t think expansive legislation is the best way to address certain technological issues, such as cybersecurity, and I tend to agree. The process is slow, often reactionary to the known threats of the day, and potentially stifling to new approaches and technologies. “By the 24 months it may take to write the rules on cybersecurity, it’s already changed. It changes every day,” Paul said. “[O]ne of the things government is not is agile.”

Rather, on cybersecurity, at least, he suggests facilitating open exchanges between the government and companies around information exchange, and granting companies certain narrow rights to fight cybercrime (although I’m not sure his idea of offering freedom from certain antitrust laws is wise). Maybe they can create a working group dedicated to identifying and stopping the types of attacks everyone is seeing. This, Paul said, would attack problems in lightweight, narrow ways rather than always having  to “open Pandora’s box.”

Another of Paul’s ideas is just to let the courts resolve certain technology problems relatively quickly as they arise rather than trying to draft future-proof legislation and regulations. It’s not an ideal solution — courts deal in the specific facts of each case, their precedent is geographically limited and legal contracts could theoretically allow for some rather unethical practices — but it’s not entirely without merit.

On net neutrality

OK, Paul didn’t address net neutrality at the event, but Rep. Marsha Blackburn (R-TN) and Heritage Foundation Senior Research Fellow in Regulatory Policy James Gattuso, who emceed the event, did. And Paul has discussed net neutrality before, as detailed here by TechDirt’s Mike Masnick. I’d argue they’re all flat wrong in the idea that government-mandated net neutrality will somehow stifle innovation and consumer choice more than will letting large carriers decide what data gets a free ride on their networks.

The idea of net neutrality actually ties into the recent hoopla over who invented the internet, something Paul did chime in on at the Heritage Foundation event, touting the individuals who took part in it over the government’s involvement. This argument falls short because it ignores the government funding involved in creating the internet, including to those individuals’ employers. As Masnick notes in his post on Paul’s net neutrality stance, the senator also conveniently ignores the government subsidies and rights of way necessary to build the internet’s infrastructure when characterizing it as privately owned infrastructure.

Boiled down to their core, Paul’s views on technology are kind of like an iron fist in a velvet glove (although whether that’s intentional or not is up for debate). They appear to have innovation and consumer rights in mind — and in some cases they do — but giving free rein to large companies with lots of control over the world’s internet experience probably means both causes will suffer in the end.

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How the model works and what it found

In order to train their model, the researchers fed it two sets of tweets — one they had determined to be about bullying activity and another that was not. Once the model had learned the language identifiers of tweets relating to bullying, it was time to turn it loose on real-world tweets. Not only did the system start identifying a great number of tweets, but it also discovered time patterns (they occur most frequently during the school week) and was able to pick out who played what role in the bullying.

In terms of demonstrating the power of big data, the latter might be the most interesting part because it actually uncovered an entirely new insight into the sociology of bullying. Not only are there the long-known roles of bully, victim, accuser and defender, but the researchers found that on social media, at least, there’s also the reporter. That’s someone who witnessed or heard about a bullying incident, but wasn’t involved, yet still commented on it.

Going forward, the team wants to add a sentiment analysis capability to its model so it can determine how individuals’ feelings are actually affected by bullying. It also wants to track bullies and victims over time, something not possible in traditional social science surveys that typically involve one-off interviews with children who know they’re being listened to. Just like with companies trying to uncover the causes of certain consumer trends, the researchers can follow groups of children over time via Twitter, trying to detect how and why they do what they do, and perhaps how relationships evolve.

Is Twitter a research lab, or an always-on wiretap?

The bigger policy and, really, ethical question that comes out this type of research is how we act upon it. The easy (or at least non-controversial) course of action — and something the researchers already suggest — is giving policymakers better data on which to base legislation or other efforts to prevent and punish bullying. Hopefully, they’ll listen. As I explained last week, the results of studies such as this one can provide valuable insights on which to base public policy, not just back up someone’s predetermined stance on an issue.

A more-controversial result of this research — especially if it goes on for an extended period of time — is how and when to actually intervene. As researcher Jerry Zhu says about the addition of sentiment analysis in the press release highlighting the study, “The idea is that if someone is powerfully affected by the event, if they are feeling extreme anger or sadness, that’s when they could be a danger to themselves or others. Those are the ones that would need immediate attention.”

Morally, this seems like the right thing to do, but it opens up a whole can of worms legally. How accurately can a machine learning algorithm actually determine feelings that might lead to physical harm? What level of intervention is actually allowable or advisable, and who should do it — the researchers, parents, the police? Where’s the line between what’s worth intervening on and what’s not, especially when we’re talking about mandatory reporters and potential harm to children? Will Twitter be forced to turn over user data without a search warrant?

Given the power such algorithms and the relative low cost of computing, it wouldn’t be a stretch to see schools or law-enforcement agencies start monitoring social media sites themselves to detect incidents of bullying, or maybe even child abuse. And although most tweets are publicly visible, a great deal of Facebook data happens behind that platform’s guarded walls. Could lawmakers demand companies like Facebook actively monitor their sites for these types of messages, or at least give agencies’ access to the social activity of minors?

Big data techniques are already used to fight crime, but this is a lot different than predicting where criminals will strike or which convicts are likely to reoffend. I’d certainly want to know if my daughter were being bullied, but I’m not sure I’d to find out from some strange researchers, or Twitter or the police. If my daughter were accused of being a bully, I’d fight tooth and nail to discredit the accuracy of the “evidence” and the legality of the monitoring. And I’m not sure anyone could live with themselves if they knew something was happening but didn’t act until it was too late.

I don’t know the answers to any of these questions, and I don’t think anyone really does right now. But with more data than ever available about what’s going on in people’s lives, combined with cutting-edge analytic techniques and technologies, and our society’s seeming determination to raise our children in a sterile world with bumpered walls, we might have to answer these questions sooner rather than later.

Feature image courtesy of Shutterstock user Stocksnapper; bully image courtesy of Shutterstock user MANDY GODBEHEAR.

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The decision is probably the right one given the language of the law but this case should serve as a sign that something’s wrong in how we prioritize online content. Why does the entertainment industry get a stick with which to beat web sites while child prostitutes are left empty-handed?

Laws should encourage free speech online

Whether we’re talking about classified ads, obscene material or copyright, the arguments on both sides are generally the same. Those who propose laws typically see a criminal enterprise and claim it’s time to regulate the platforms that enable these crimes to take place. Opponents say the bills will have unduly burdensome effects on providers by forcing them to monitor every piece of content that hits their servers. Alternatively, they say, such bills will chill free speech by encouraging providers to limit drastically the types of content they host in order to avoid the burden of monitoring.

The last time a proposed law — the Stop Online Piracy Act — tried to force web sites and service providers to monitor content proactively, the companies and web users it would have affected reacted fiercely. They were so outraged they blacked out parts of the web and launched crowdsourced movements to write new internet constitutions and influence internet policy. Fair enough.

Due to the nature of how the internet and web operate, it’s easy to side with those wanting to protect providers and web sites. Unless they’re actively encouraging the criminal behavior that laws want to regulate, it’s difficult to hold sites and services accountable for the activity (and complaints) of potentially millions of users.

Hence Section 230 of the Communications Decency Act, which generally exempts service providers from liability for user-provided content, even when providers are notified such content might be obscene or otherwise illegal. This is the statute on which the judge in the aforementioned case — brought by Backpage.com and the Internet Archive — centered his to decision to suspend implementation enforcement of Washington’s anti-child-prosititution law. (For a good explanation of the extent of this immunity from liability, and a lengthy hypothetical application to Wikipedia content, check out this 2006 article from the Harvard Law Review.)

Unless we’re talking about copyright

However, as anyone even casually aware of the Digital Millenium Copyright Act might be aware, not all content is created equal. That act’s widely cited “safe harbor provision” actually restricts a great deal of the immunity the CDA would normally provide sites like YouTube against claims of copyright infringement. In fact, the CDA expressly excludes intellectual property law from the scope of its coverage.

Under the DMCA, when service providers receive notice of allegedly infringing content, they must either undertake the effort to determine whether it’s legally infringing or just take the content down until/if the user who posted it rebuts the purported content-holder’s claim. This process can be terribly burdensome on service providers that don’t simply want to act as a rubber stamp for censorship by removing whatever content is contested. Indeed — as Google has showed time and time again — there are a lot of false, or at least questionable, claims filed under the DMCA.

If it works for copyright, why not prostitution?

It’s difficult to comprehend why it’s acceptable to impose burdens on service providers and potentially chill free speech in the name of preventing copyright infringement, but not in the name of preventing prostitution. Why should Facebook, for example, be forced to act upon a claim about someone posting a video without permission but not about someone trying to sell a minor for sex?

To be clear, the proposed law in Washington might be a bit extreme in all but requiring service providers to attempt to verify in person the ages of the advertised escorts. For a variety of reasons — including the global nature of the web and questions about jurisdiction — this is probably infeasible. The Washington law is also far too broad, potentially covering everyone from Backpage.com (the lead plaintiff in the case) to co-plaintiff and intervenor the Internet Archive.

It might not be infeasible, however, to require sites and service providers to examine somehow claims of child prostitution like they do copyright claims. (I suspect many already do in some cases, and almost all web site terms of service grant them the permission to remove objectionable content.) And if laws were rewritten to cover only sections on sites that advertise “escort services” or other clear euphemisms for prostitution, that’s certainly less burdensome than imposing requirements across every piece of content on the web.

Regulating content on the internet is a complex issue and attempts to do so in a meaningful manner often skirt the bounds of what’s constitutional. It’s unclear what methods for fighting a problem such as child prostitution would be both effective and legal. But it’s also debatable that the DMCA is a fair or effective law. If Congress thinks it’s alright to suspend concerns about free speech when it comes to the background song in a YouTube video, maybe doing so for allegations of child abuse isn’t such a crazy idea.

Image courtesy of Shutterstock user Rugierro S.

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Hey, now I can identify Sen. Al Franken!

My gut instinct is to call Senator Al Franken a well-meaning fool when it comes to his latest outcry — this time against the advent of facial-recognition software — but he actually has a point.

For the record, I have nothing against Sen. Franken (D-MN). In fact, I rather respect him. But any time I see a politician all up in arms about the problems some new-fangled technology is going to cause his simpleton, Luddite constituents, I get defensive.

By and large, I think Congress should leave new web technologies alone so they can grow organically and we, the people — who are actually perfectly able to adjust to them — can decide the limits with which we’re comfortable. If someone gets out of line, agencies such as the FTC are more than capable of bringing down the regulatory hammer on an individual basis. But facial recognition is a whole new beast.

I’m not even so concerned about government or law enforcement agencies using facial recognition to identify suspects under murky constitutional protection (although it is a legitimate concern). Rather I’m more troubled about the thought of any average Joe having this power at his own fingertips. If you’ve heard about Alessandro Acquisti’s work with the technology, you know why this possibility should be a little scary. Snap a photo of someone with a smartphone, analyze an image against a database of social media or Flickr pics and, voila, you have a name.

From there, it’s easy to get someone’s age, hometown, interests, news coverage, you name it. Given a name, an age and a city of birth, Acquisti has proven it’s relatively easy to predict someone’s Social Security number. It also wouldn’t be too difficult to start stalking a complete stranger, or to make a national laughing stock out of some innocent (but hilarious) face in the crowd. Or for a stranger to dredge up those pornographic shots of you that your ex-boyfriend posted online. Or to figure out the guy next to you on the subway is rich, follow him home and rob him.

Facial recognition is one of the reasons I believe we need an updated system of civil laws to account for the unwilling — and possibly global — publicity that the advent of social media makes possible. You don’t even need to have a Facebook or Twitter account to get thrown into the mix. All it takes is someone else snapping a casual photo, tagging you and you’re in, like it or not.

This is also why I don’t think Google went far enough with the face-blurring technology it announced for YouTube videos on Wednesday. Blocking out dissidents’ faces so they aren’t the targets of authoritarian governments is a noble goal, but it doesn’t address the issue of me being able to blur out my face in someone else’s video. I’m not sure how such a capability would work from a business perspective, but citizens need some level of control over how and where their images are used.

It’ll be slow-going, but I assume Congress or the Supreme Court will ultimately define the governmental uses of facial-recognition software just as they’ve done with wiretaps and GPS tracking, and as they should do very soon with other types of personal data stored with online services. But it’s the technology in the hands of everyday citizens that bothers me most. I don’t think I want a law saying “thou shalt not develop apps that utilize facial-recognition software,” but I also don’t want some complete stranger asking me how I liked my latest trip to San Diego.

You can watch video of Franken’s opening statement from Wednesday’s hearing here.

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Kleiner Perkins wants arbitration because it’s a more-private process (neither facts nor discovered documents will likely find their way into the public eye) and — assuming for the sake of argument that the firm is liable — likely will result in a smaller award for Pao than a jury trial likely will produce. Kleiner Perkins tried to compel arbitration based on agreements Pao had entered into with the various corporate entities that actually managed the funds on which she worked for the firm. Pao argued — among other things — that because she sued Kleiner Perkins and not the management entities, the arbitration clauses aren’t valid in this case.

By and large, Judge Kahn bought Pao’s argument but he did allow the parties until Friday to file briefs on the issues of third-party beneficiary and equitable estoppel that could save Kleiner Perkins’ case for arbitration. Essentially, the firm will argue (and did briefly in a motion available on the San Jose Mercury News‘ coverage of the decision) that because the agreements between Pao and the fund-management entities clearly conferred benefits to Kleiner Perkins, Kleiner Perkins can enforce the agreements’ terms — including the arbitration clauses — even though it wasn’t a party to the contracts.

Equitable estoppel means many things in the world of civil litigation, but in this case it means Kleiner Perkins needs to show that Pao’s claims are so intertwined with the contracts at issue that it’s only fair if the contracts are enforced. The firm’s argument is threefold: (1) that Pao’s claims are wholly dependent on the rights laid out in the agreements; (2) that there’s considerable overlap between the managing members of Kleiner Perkins and the managing members of the funds Pao worked on; and (3) that because Pao is seeking “carried interest” conferred to her as part of the agreements, she can’t pick and choose which terms apply in this case (i.e., money owed to her) and which don’t (i.e., the arbitration clauses).

Although neither affirmative defense (a legal term meaning essentially “even if everything the plaintiff said is true, we’re not liable”) is a slam dunk, that Judge Kahn allowed for a hearing on them suggests he thinks they have some merit. The parties’ briefs are due on Friday and will be heard in court on July 20. Here’s the official statement from Kleiner Perkins on today’s ruling:

KPCB is encouraged by Judge Kahn’s willingness to hear our arguments on third party beneficiary and equitable estoppel claims.  The firm will file its motions by July 13th to be heard in a supplementary hearing on July 20th.   KPCB continues to believe it has strong arguments and precedent to move the matter to arbitration.  Ms. Pao, like other partners, signed a variety of standard agreements requiring, among other things, that all disputes be resolved through arbitration.  We expect arbitration to be a more efficient and speedier dispute resolution process than trying a matter before a jury years down the line in the San Francisco Superior Court. 

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If you’re concerned about privacy, this should be kind of scary. There’s some solace in the fact that most providers claim they deny requests they feel are overbroad or unauthorized, but they comply with most and the numbers are rising. A couple of carriers, including Verizon and T-Mobile, noted user-data request increases in the 15 percent per-year range. Further, as some companies explain in their responses to Rep. Markey, many requests ask for information on numerous parties or location data that might identify everyone who pinged off a particular tower.

Here’s a little chart I made comparing the estimated number of requests for user data from wireless providers in 2011 to that of Google. I also threw in Twitter’s recently released number from the first half of 2012, which, at a mere 679, doesn’t even show up on the chart.

Here’s a breakdown of requests in 2011 just by the carriers that provided information for last year, although all numbers are estimates because (1) some providers just provided estimates and (2) they weren’t entirely clear in differentiating between types of requests. Sprint, for example, claimed more than 300,000 court orders for wiretaps, pen register/trap and trace devices, and location information over the past five years, but also noted “approximately 500,000 subpoenas from law enforcement” last year alone.

Several providers were a little more vague than others. MetroPCS claimed “an average of fewer than 12,000 requests per month from January 2006 through May 2012.” Cricket said requests grew steadily “from a low of approximately 24,000 in 2007 to a high of approximately 42,500 in 2011.” C Spire claimed approximately 12,500 requests over the past five years, while T-Mobile declined to release any numbers. Here is AT&T’s rather detailed breakdown.

Aside from the numbers, the Times article also notes varying degrees of consistency with which law-enforcement agencies go about requesting user data in accordance with federal surveillance laws. Of course, this isn’t made any easier with ever-changing technologies and data sources, such as GPS, that begin to blur the lines between mere requests for user data and suspect surveillance that the Supreme Court recently declared unconstitutional without a warrant.

It’s yet another reason that Congress needs to get its Fourth Amendment act in order, redrafting outdated legislation to account for new technologies not even considered when many laws about data privacy were written decades ago. In the case of data such as that stored with cloud service providers or wireless carriers, that might mean focusing laws on the type of data authorities hope to access rather than where it’s located — a variable that changes with each new wave of technology.

Given the right case, maybe the Supreme Court will spur Congress to act and offer enhanced protection to everything we’re all but forced to share digitally. In United States v. Jones, the case mentioned above, Justices Alito and Sotomayor both wrote concurring opinions expressing their discomfort with how easily authorities can access digital data stored with service providers. As of 2010, many wireless providers were storing user data for years.

Sotomayor called the third-party doctrine “ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks,” adding that she “would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.”

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In the blog post sharing the report’s findings, Jeremy Kessel, Twitter’s legal policy manager, wrote that Twitter has received more government requests in the first half of this year than during the entirety of 2011. With 679 requests targeting 948 accounts — apparently more than the rest of the world combined — the U.S. government led the charge in terms of volume. U.S. officials also top the list with a 75 percent success rate followed by runner-up the Netherlands at 50 percent while many countries are at zero percent.

It’s easy to point the finger at Twitter for turning over so much data to law enforcement but, by and large, it’s just doing what’s required under U.S. laws that were written decades before the web as we know it came into existence. Google also has seen a surge in user-data requests from the U.S. government, totaling 6,321 requests on 12,243 accounts (with a 93 percent hit rate) from July 2011 through December 2011. Google’s statistics for the first half of 2012 should be available soon.

Twitter claims it notifies users of all requests to access their information, and does occasionally deny requests that are too broad or when users challenge the requests in court.

Takedown requests under the DMCA are also much less of an issue for Twitter than for Google. Whereas Twitter received 3,378 requests during the first half of 2012, Google’s real-time trackers counts more than 2 million in the past month.

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Yes, it’s something of a “fool me once, shame on you; fool me twice, shame on me” situation given the recent history with the federal government and IP laws, but Espinel’s plan looks good on the surface. At the least, it’s open — Espinel says all suggestions made via Regulations.gov by July 25 will be made publicly available. If the executive branch decides to go crazy prosecuting relatively minor infringements (like, I don’t know, Richard O’ Dwyer) or supporting draconian bills, it can’t say it hasn’t heard the opposing viewpoints.

Espinel is also requiring anyone citing the economic losses from piracy to back up their claims with real proof. This is a fair requirement. Content-industry lobbyists, especially, are notorious for claiming huge losses as a result of online piracy, but have also been accused of significant exaggeration. For example, one common question is whether individuals who illegally download content ever would have paid for it in the first place. From the call for suggestions:

Submissions directed at the economic costs resulting from violations of intellectual property rights must clearly identify: (1)The type of intellectual property protection at issue, e.g., trademark, copyright, patent, trade secret or other (2) the methodology used in calculating the estimated costs and any critical assumptions relied upon, (3) identify the source of the data on which the cost estimates are based, and (4) provide a copy of, or a citation to, each such source of information.

Of course, while this all sounds good on paper, it’s of limited utility. The executive branch does get to decide whether or not it actually enforces the laws (it decided last year, for example, not to defend the Defense of Marriage Act) and can veto bad legislation, but it’s Congress’s job to actually draft new laws for dealing with IP. And if President Obama loses in November, Espinel could be gone by January along with whatever strategy the current administration decides upon.

Still, federal regulations are still made via notice and comment through the Federal Register and federal laws are still written in Congress, not on a Google doc started by Reddit. There’s no guarantee of any particular result, but if you want to ensure the government at least hears your opinion on IP without having to employ a lobbyist, this is as good an opportunity as any to do it.

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Essentially, the Journal reports, Google says Microsoft and Nokia have entered into an agreement with a patent troll called Mosaid in order to scare device manufacturers away from choosing to build Android devices. Because Mosaid has so many patents, and even licensing agreements with Microsoft and Nokia, Google alleges that companies that choose to build Android devices instead of Windows devices run the risk of being sued by Mosaid. Microsoft and Nokia get to share in the profits of any successful patent claims, but don’t have to dirty their hands and don’t have to renege on previous agreements over supporting open-source software such as Android.

While the allegations certainly look damning on the surface, being guilty by association with a patent troll isn’t the same as actually being guilty of antitrust violations. In the event of a lawsuit Google would actually have to prove that Microsoft and Nokia are trying to stifle competition unfairly, even if they haven’t yet done so. Google itself hasn’t been sued by Mosaid, Microsoft or Nokia with regard to the patents at play here — they likely relate to hardware and not Android — so perhaps its device partners have felt the squeeze. Either way, a complaint to regulators puts the burden of finding wrongdoing on them and not on Google’s legal team.

While Google declined to share the actual complaint it filed with the Commission, a spokesperson did send over this list of facts the company claims are in its favor:

A lack of hard evidence might also explain why Google has filed its complaint in Europe rather than in the United States. European regulators have been more active in pursuing large corporate entities for antitrust violations, and have in recent history levied mega-fines against both Microsoft and Intel, among others. It was the European Commission, for example, that held up Oracle’s acquisition of Sun Microsystems long after the U.S. Department of Justice had approved it.

If anything, the patent battles in the wireless space are a bit ridiculous in quantity if not occasionally in merit, but they’re illustrative of just how important and profitable the space is. Google might not want to do any evil, but it certainly doesn’t mind accusing others of doing it. And now that it officially has Motorola Mobility’s patents in its treasure trove, we’ll see how long it can hold out from filing at least one patent lawsuit. You know, just to test the waters.

Update: A Microsoft spokesperson sent over this statement on Google’s complaint, which suggests more than a hint of bad blood between the two companies on a variety of fronts:

Google is complaining about patents when it won’t respond to growing concerns by regulators, elected officials and judges about its abuse of standard-essential patents, and it is complaining about antitrust in the smartphone industry when it controls more than 95% of mobile search and advertising.  This seems like a desperate tactic on their part.

Image courtesy of Shutterstock user O2creationz.

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