As you may recall, this year saw an extraordinary series of jail sentences for online trolls there, for offences including calling public officials rude names and joking about missing children. The Crown Prosecution Service has apparently had to deal with 60 cases relating to ‘threats’ made over Twitter or Facebook in the last year and a half. The director of public prosecutions, Keir Starmer, said in October that he would look at the rules, and now he’s come back with some provisional guidelines (PDF warning) – finalized rules will follow after a public consultation.

“These interim guidelines are intended to strike the right balance between freedom of expression and the need to uphold the criminal law,” Starmer said. “They make a clear distinction between communications which amount to credible threats of violence, a targeted campaign of harassment against an individual or which breach court orders on the one hand, and other communications sent by social media, e.g. those that are grossly offensive, on the other.”

“A prosecution is unlikely to be in the public interest if the communication is swiftly removed, blocked, not intended for a wide audience or not obviously beyond what could conceivably be tolerable or acceptable in a diverse society which upholds and respects freedom of expression.”

According to Starmer, those making serious threats will be “prosecuted robustly”, while those just making tasteless jokes and comments will only face prosecution “if they cross a high threshold”.

So, how high is that threshold? Here’s where the whole business becomes even sillier that it may seem at first. Essentially, the rules are already there in various laws – it’s just that the English and Welsh prosecutors seem to need reminding:

They should only proceed with cases involving such an offence where they are satisfied that the communication in question is more than:

• Offensive, shocking or disturbing; or
• Satirical, iconoclastic or rude comment; or
• The expression of unpopular or unfashionable opinion about serious or trivial matters, or banter or humour, even if distasteful to some or painful to those subjected to it.

Starmer also pointed out that kids are, well, kids, so age and maturity should be factors when deciding whether or not to throw someone in jail for being rude.

The guidelines have led to some partly humorous interpretations and recommendations, such as this from The Guardian:

Credible threats will still be prosecuted, so go big or go to jail. Avoid plausible phrases such as “I’m physically going to punch you.” Instead, try the much less credible: “I’m going to hit you so hard we both get knighthoods.” How would that possibly happen? It wouldn’t. Granting you total legal immunity.

This isn’t over yet. That public consultation still needs to happen, and there may still be new laws that specifically address online speech – in case you haven’t already guessed, the existing laws seem to be open to a bit too much interpretation.

But Starmer’s interim guidelines should provoke relief among both general free speech advocates, and those who follow the development of online life. The fact is, what people say online may technically qualify as publication or telecommunications, but it’s pretty much what people might just say in the pub. And nobody’s prosecuting bad taste in that context.

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Eolas is a shell company that had been stomping around the country demanding companies pay it to use basic technology that lets users “interact” with the web. It suffered what looked like a fatal blow earlier this year when Amazon and other Eolas targets persuaded a Texas jury that two of its patents were invalid.

Nonetheless, Eolas has dusted itself off and filed new claims based on the same patents plus two more that are offshoots from the original patent issued in 1998. That patent, which can be seen here, is entitled “Distributed hypermedia method for automatically invoking external application providing interaction and display of embedded objects within a hypermedia document.”

Eolas’ legal rampage led the man regarded as the inventor of the World Wide Web, Tim Berners-Lee, to testify in February that its patents should be invalid.

The troll’s activities have also proved controversial because the University of California has been its partner in the patent lawsuits. A spokesperson told Reuters, which was first to report the Facebook suit, that the school considered the patents public assets and that it “should be paid a fair value when a third party exploits that university asset for profit.”

Lawyers for McKool Smith, the firm representing the troll, didn’t return requests for comment. The law firm, which has won hundreds of millions in Texas troll cases through commissions of up to 40 percent, has seen its fortunes turn in the last year.

A Wall Street Journal story last month quoted a lawyer who said McKool Smith may now have to survive on a stream of trout rather than big marlins.

Here’s the Facebook case:

Eolas v Facebook

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In a complaint filed this week in Delaware, Mobile Transformation LLC says a “Romney vs Boris” video on Buzzfeed violates its technology by showing a static ad at the same time the video is streaming.

The shell company is relying on US Patent 6,351,736 which was issued in 2002 and covers a “system and method for displaying advertisements with played data.” The “method” described in the patent refers to the idea of showing a visual ad while music is playing:

A method and a system for playing a first type of data, such as audio stream data, for the user while simultaneously displaying an advertisement in the form of a second type of data, such as video data. The system and method enable advertisements to be displayed while music is being played from an audio file by the computer of the user, thereby providing an alternative revenue source for the owner of the rights to the audio data. Furthermore, since the advertisement is in a data format, preferably video data, which is different from that of the audio music file, the display of such an advertisement does not interfere with the enjoyment of the music or other audio data being played.

The Buzzfeed video, which shows London mayor Boris Johnson slamming Presidential candidate Mitt Romney, is not an audio clip. Mobile Transformation LCC claims, however, that it violates the patent because it uses an “embedded flash player to present a first data type of a video file of “Boris v Romney” along with the presentation of advertising data of a second type that includes a static image advertisement.”

Records show the patent has been assigned to a chain of shell companies before it became the basis of the current troll suit.

Patent trolling involves shell companies that don’t make anything acquire patents in order to demand money from companies that do make things. Since they have no tangible assets, the shell companies are not vulnerable to countersuits, meaning their victims frequently pay them to go away rather than endure expensive trial. Mobile Transformation LLC has already sued 21 companies and settled with a dozen of them.

Buzzfeed said it can’t comment as it is still reviewing the lawsuit. The website, which makes highly-sharable content like “The 25 Happiest Animals in the World,” is unlikely to roll over for the patent troll, however. Last year, after it was sued by infamous copyright troll Righthaven, Buzzfeed countered with an abuse of process lawsuit. (It will be interesting to see if Buzzfeed tries to go viral with “10 pieces of prior art that invalidate an advertising patent.”)

The shell company’s lawyer did not immediately return a request for comment. The lawsuit is below:

Troll v Buzzfeed

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In complaints filed this week, a Delaware-based shell called Parallel Iron claims Facebook and LinkedIn violated its patents by using HDFS. Parallel Iron has already filed suits against Amazon, Oracle and other firms for using the HDFS technology that lets users store huge quantities of data on clusters of commodity servers.

Hadoop has been built by a large network of contributors, including individual developers and large companies like Yahoo and is an Apache Software Foundation project. HDFS, its storage component, was based on Google’s Google File System. Parallel Iron’s patent complaints, however, say the whole system was made possible by four men:

In this technological age, we take for granted the ability to access tremendous amounts of data through our computers and the Internet, a process that seems effortless and unremarkable. But this apparent effortlessness is an illusion, made possible only by technological wizardry. …  It was made possible by the innovations of technological pioneers like Melvin James Bullen, Steven Louis Dodd, William Thomas Lynch, and David James Herbison.

The four men obtained three patents for “methods and systems for a storage system” in 2007, 2009 and 2011 (click the dates to see them). They assigned the patents to an LLC called Ring Technology Enterprises which appears to have been a predecessor shell company to Parallel Iron that filed lawsuits in the Eastern District of Texas.

Such companies, known as patent trolls, have come under fire as critics accuse of them gaming the patent system in order to extort money from companies that create real products and services. Recently, trolls have begun stalking promising start-ups (like travel site Hipmunk and handcraft marketplace Etsy) and suing them as soon they receive funding.

The toll of patent trolls on innovation has received special attention this month as two academics released a study concluding that trolls cost the economy $29 billion in direct costs every year. Meanwhile, a famous judge called the patent system “dysfunctional” and threw out a long-awaited smartphone trial between Google and Apple. This week, the same judge wrote an editorial in the Atlantic saying many industries don’t need patents in the first place and suggesting that trolls should have to actually use the patents that are the basis of their lawsuits.

As Congress has been slow in fixing the patent troll problem, some companies like Twitter are exploring their own solutions like pledging not to use their patents in an offensive manner.

Parallel Iron’s attorney, Richard Kirk, did not immediately return a request for comment.

Here’s a copy of the complaint against Facebook:

Parallel Iron v Facebook

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This time, though, Larry Ellison’s company gets to be the good guy. In a lawsuit filed in Wisconsin federal court, Oracle is asking the court to invalidate four patents belonging to a patent troll that has been terrorizing corporations and small software developers across the country.

The troll in question, Lodsys, is a Texas-based shell company that gained infamy last year by suing app makers who included a common “in-app” purchase feature in their Apple products. The company’s business model is based  in part on using threatening letters to force app makers to hand over part of their revenues —  money which then fuels new legal campaigns.

Oracle has decided to weigh in because Lodsys “has repeatedly threatened numerous Oracle customers” such as Walgreens over the use of a web-chat feature Lodsys claims to own. Oracle is asking the court to declare that the four patents Lodsys is using to bully its customers are not new inventions. The patents, including US Patent  5,999,908 (“customer based design module”), came to prominence last year when Lodsys used them to sue Best Buy, Adidas and others.

Oracle’s lawsuit also takes a swipe at Lodsys’s status as a patent troll — a shell firm that doesn’t make anything but instead collects patents to sue companies that do:

Oracle is not the only heavyweight to challenge Lodsys. A court recently gave Apple permission to intervene on behalf of its developers in a Texas case.

The patents themselves were obtained by Dan Abelow, a self-styled inventor who attended several business schools but appears to have no training in science or engineering. The front man for Lodsys is a Chicago man named Mark Small but the real owners of the shell company have yet to reveal themselves. Lodsys is believed to be tied to Intellectual Ventures, a Seattle firm that aspires to make patent trolling a multi-billion dollar industry.

Here’s the Oracle suit:

Oracle v Lodsys
(Image by Tereshchenko Dmitry via Shutterstock)

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While a thousand insults are raining down on Yahoo right now, there are only a few ways this case could turn out. Here they are, including the (unofficial and speculative) odds for each outcome

Yahoo Wins: A Court Decision or Forced Licensing Agreement (1 in 5 odds)

Yahoo’s dream scenario is to get an injunction that orders Facebook to stop using its patents. This would force the social network to license the patents at an extortionate rate to prevent going dark.

While CEO Scott Thompson may have visions of the $612 million BlackBerry settlement dancing in his head, he’ll have a hard time getting a similar deal from Facebook. That’s because it became much harder for patent holders to obtain injunctions after the Supreme Court changed the law in a 2006 case called eBay v. MercExchange.

The second best outcome for Yahoo is a good old fashioned damages order that forces Facebook to pay millions for infringing the patents. While this is more likely than the first outcome, it is hard to imagine any eye-popping verdict. The case is taking place in a tech-savvy California court, not the troll paradise of East Texas where rural juries love sticking it to northern tech companies.

Yahoo Loses: Facebook KO’s the Patents or Wins a Counter Claim (3 in 10)

Facebook is no struggling start-up. It has an army of lawyers and is not shy about using them (see Winklevii or Ceglia, Paul). To fight back, it can tap its own patent portfolio or purchase third party patents in order to counter-sue Yahoo. Silicon Valley is awash in absurd patents so this would not be difficult.

Many of the Yahoo patents seem abstract, anticipated or obvious so Facebook will likely ask the court and the Patent Office to declare them invalid. Tech sites are already holding up prior art and, damningly, the Yahoo engineer who “invented” some of the patents has disavowed their legitimacy. If Facebook needs more help, it could turn to a firm like Article One Partners which pays bounties to people who find documents that prove an invention is not really new.

But killing a patent is no walk in the park. Yahoo is asserting ten separate patents, each with multiple claims, so it has many bullets. To get the upper hand, Facebook will have to knock out as many claims as possible while also piercing Yahoo with patents of its own until the Sunnyvale company capitulates.

A Draw: Yahoo and Facebook enter a Cross-Licensing Agreement (even)

If Facebook can find patents of its own to assert, the path is clear for Yahoo to come to its senses (recall that it’s now claiming to have invented the social network). A discreet cross-licensing deal would allow the company to avoid calamitous legal costs (senior patent lawyers bill around $1000 an hour) and hire engineers, writers and marketers instead.

One potential obstacle to a cross-licensing deal, though, is finding a way for Thompson to save face. Right now, the CEO is on a limb after pulling a macho move to show investors that he will do something — anything — to push the company in a new direction. Yahoo’s embrace of the patent path has already produced unprecedented cries of rage and betrayal from the tech community so Thompson may feel hard-pressed to double-down and avoid anything that looks like compromise. Plus, experts say success could allow the company to make a living as a full-time patent troll.

The Game Clock

While there’s an outside chance Facebook will get skittish and settle prior to its IPO, the company’s statements so far suggest the opposite. This means a court case that could last years or even up to a decade if appeals are involved. Facebook will probably still be around by then. As for Yahoo, who knows?

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Image by lacie babenco

This is the fourth in a series of online community management posts. Earlier posts covered online community manager jobs, what community managers actually do, and what skills are required to be successful in the role. I don’t want to leave anyone with the impression that community management is all sunny skies, unicorns and rainbows, though. Communities have their fair share of trolls under the bridge, wicked influences and other elements representing the dark side of the force, as Robert S. Robbins points out in a comment on one of my previous posts. Robert said:

“You seem to be ignoring the dark side of the profession. I’ve seen a lot of challenging issues come up in the online communities I participate in. For example: you’ll have to deal with trolls and other disruptive individuals, you’ll have to deal with copyright issues when content providers put up material they don’t own the rights to, and you’ll have to deal with security when women attract stalkers and kids are being preyed upon. YouTube started out as a video sharing site and then became a social networking site but they failed miserably when it came to managing that aspect of the business.”

The dark side can take many different forms. Here are just a few of them.

Trolls. These are the people who engage in a community with the sole purpose of baiting other users into disruptive and often emotional arguments. The best way to deal with trolls is to ignore them and refuse to take the bait, which usually drives them to leave your community for other communities where they can find an audience and an argument. Don’t feed the trolls.

Spammers. Use every tool at your disposal to deal aggressively with spammers using automated spam control software, like Akismet, and other tools that allow community members to report spam and automatically bury spam comments. As soon as the spammers realize that you are slow to deal with spam, you will find your community overrun with Nigerian royalty who need help transferring money, Viagra ads, foreign brides, and more.

Lawbreakers. This comes in many forms depending on the type of community – members uploading content they don’t own, scammers, and much more. How you deal with it depends on the ways that people are exploiting the system. In general, you should make sure your guidelines clearly state how the community can be used, get rid of any offenders quickly, and put technical solutions in place to discourage the behavior in the first place (reporting mechanisms, etc.)

Meanies. These are the people who make the community unpleasant for the other members: harassment, predatory behavior, bullying and more fall into this group. Again, make sure you have clear community guidelines (Flickr is a great example). Give people a warning or two about their behavior with a pointer to the guidelines, and then get rid of the members who refuse to comply and continue behaving inappropriately to other members.

How has the dark side manifested itself in your communities? What issues have you experienced, and how do you deal with them?

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