Tag Archives: Google

Sun, Oracle, Microsoft, Google, trademark, patents, copyright and David Boies

Originally posted 2011-09-28 10:33:28. Republished by Blog Post Promoter

Eastern District of New York, BrooklynThere’s a lot going on, conceptually, in this article entitled “The $800M question: What’s the difference between trademark and copyright?” in VentureBeat:

Ten years ago, when Sun sued Microsoft over Java, Sun alleged trademark infringement because Microsoft was not implementing Java according to Sun’s specification. Microsoft had entered into a license agreement with Sun — promising to follow the specification. When Microsoft deviated from the specification, Sun rightly claimed breach of contract and trademark infringement. Sun sought an injunction against Microsoft to stop using the Java logo and to remove the incompatible Microsoft code from the market. Sun ultimately prevailed, and received a large settlement, in part due to Microsoft’s anticompetitive conduct over Java.

Check.  A fine point in trademark licensing:  If you manufacture a widget and use my trademark, under a license, to tell the world that you’ve got my widget-juice running it, your willful failure to follow the specs is both a contract breach and a trademark infringement. Next:

Attorney David Boies . . . served as Special Trial Counsel for the United States Department of Justice in its antitrust suit against Microsoft. At the conclusion of that antitrust suit, U.S. District Court Judge Jackson found that Microsoft took actions “with the sole purpose of making it difficult for developers to write Java applications … that would allow them to be ported.” . . .

Boies now represents Oracle (which has since acquired Sun, including its rights to Java) in its case against Google for patent and copyright infringement of Java. He surely knows the differences between the issues in the prior lawsuits. Unlike Microsoft, Google never licensed Java from Sun. It never agreed with Sun to implement the Java specification, and it doesn’t call its product Java. It calls it Android and Android is not a candidate for an antitrust case. In fact, the Microsoft .NET Framework and Java are the two dominant middleware platforms. Read More…

And Let Google the Dogs of Law

Originally posted 2011-05-23 16:57:09. Republished by Blog Post Promoter

It had to happen — another piece of territory now being rented out in the Lanham-Act-as-competition-buster industry: A new service has announced that it will scoop up the Google infringements for ya for a few kopeks. Their proud slogan: “Online trademark infringement is the act of using search keywords that specifically target another company’s brand to generate online traffic. ” The name of their company, “Gooroo,” is obviously meant to “free ride” on the trademark equity of “Google,” but if they’re goring that ox anyway, may as well take an extra chunk, eh?

Myth becomes law becomes commercial reality — all based on the spurious judical-activism-made concept of “diversion” and its handmaid, “initial interest confusion.” But I repeat myself.

Still, watch this space: Some folks at INTA just may have something helpful to say about this….

You mean after the attorneys buy new houses?

Originally posted 2012-01-30 15:50:23. Republished by Blog Post Promoter

Robert Scoble asks, “What happens after Google loses?”:

Viacom wants to play “force folks to play on our turf.” Does the Internet reward that kind of behavior?

It hasn’t in the past. PodTech tried that strategy. To watch my videos you used to have to go to PodTech. Then in January we let go a little bit of our controlling attitude and made a player that you can embed on your own site. What happened?

Traffic tripled.

So, if I were a smart content guy (hint, I’m not) I’d be opening my video archives and saying “post them where you want.”

If I were even smarter I’d say “cut them up, edit them, mash them, do what you want with them.” I’m not that smart either.

And, if I really were blessed with a brain like Douglas Engelbart’s I’d make video for where the big audiences are (hint: it’s YouTube, StumbleUpon, Digg, Flickr, Blogs, and search engines like Google/Yahoo/Live).

I’m not that smart, but other people in this industry are.

Does the technology stream really flow into the revenue stream, though? I understand that YouTube made a lot of money — well, by selling itself; I am not sure I understand how it actually makes money as a business — but I haven’t heard of too many people getting too rich by uploading their content onto YouTube. Have you?

UPDATE:  We never got the answer to Scoble’s question — Google didn’t lose at all.

Right to Google search position?

Originally posted 2014-05-14 12:43:25. Republished by Blog Post Promoter

Reuters reports:

A parental advice Internet site has sued Google Inc., charging it unfairly deprived the company of customers by downgrading its search-result ranking without reason or warning.

It’s possible that Google determined this company was gaming the system. It’s possible that someone at Google was punishing them for who knows what. But this doesn’t help:

KinderStart contends that once a company has been penalized, it is difficult to contact Google to regain good standing and impossible to get a report on whether or why the search leader took such action.

The technology area is unique in that a company can, on the strength of a great product like Google, rise out of nowhere to become a dominant power not only in its sector but across the entire economy. But the flip side is that while companies like Google and Microsoft can service millions, even billions of people, they can’t possibly keep up develop, nurture or respond to customer relationships the way brick and mortar companies must. Of course, Google could rebut this accusation; we have only one side talking here. We’ll be listening for the other.

UPDATE: A blogger (Blogger, that is) angle implicating more of the same — blowing off customers (yes, they’re customers even if they don’t pay) without explanation. Hat tip to Desert Light Journal.

UPDATE:  Some interesting skepticism.

Google Takes Offense, Takes Offensive (for a change)

Originally posted 2013-08-20 13:18:08. Republished by Blog Post Promoter

According to Search Engine Journal, perennial trademark infringement defendant Google has filed suit against Froogles.com, an online shopping site. The New York federal complaint is here. Google has already lost against Froogles at the ICANN level, the site reports. Don’t confuse with Froogles.com with Froogle.com, which is a Google site. Does that figure into the claim now? Take a look and let me know!

UPDATE:  After more than two years of pretrial stuff, according to PACER the case was settled on undisclosed terms.  Either way, Froogles.com is still in business and Richard Wolfe remains its “sole proprietor.”

Guest Post: Fair Use or Foul Ball?

Gregory Winsky

Gregory J. Winsky of Archer & Greiner, PC

See below for more information about my partner Greg Winsky, who is just snarky enough to merit a guest post on LIKELIHOOD OF CONCLUSION on a topic I’ve been covering — and inviting guests to cover — for years despite his being way overqualified as a real, live intellectual property lawyer.

When copying 20,000,000 books without permission is not copyright infringement

Jim Bouton’s last pitch to Google wasn’t Ball Four, at least according to the umps of the Second Circuit who decided — after replay — that the digital giant had smacked the pitcher-turned-author’s hanging slider more than 330′ directly  over the foul pole boundary of the short porch in right.

In The Author’s Guild v. Google Inc., a three judge panel of the Second Circuit Court of Appeals affirmed a grant of summary judgment in favor of Google by the District Court of the Southern District of New York against the former Yankee pitcher, one of the named plaintiffs, and The Author’s Guild, the nation’s professional organization for writers, once headed up by such luminaries as Pearl Buck and Erica Jong (which organization had been found to lack standing to bring claims of copyright infringement on behalf of its members).

The 2013 summary judgment decision held that Google, having made digital copies of the full text of tens of millions of books without the permission of the authors and having provided a publicly available search function with an electronic viewer that copies out “snippets” of works retrieved, had not infringed Bouton’s, nor anybody’s, copyright, because Google’s digitization was “transformative” and therefore constituted “fair use” under the Copyright Act.

BallFourStating off the bat that “[t]his copyright dispute tests the boundaries of fair use, “the Second Circuit expanded the strike zone of the Fair Use exception in Section 107 of the Copyright Act, even in the face of the assertion of the plaintiff/copyright holders that Google’s “ultimate profit motivation” in the creation of this new monolithic digital library1 should obviate a finding of fair use under first prong of the Section 107 analysis, that is, “whether such use is of a commercial nature.”

The appellate court disagreed, stating that “we see no reason in this case why Google’s overall profit motivation should prevail as a reason for denying fair use over its highly convincing transformative purpose.”

Read More…

Google Books settlement takes it on the Chin

I raised questions about the Google Books settlement ages ago.

Now some of them have been answered, and Judge Denny Chin’s answer is “no”:

While the digitization of books and the creation of a universal digital library would benefit many, the [Amended Settlement Agreement] would simply go too far.  It would permit this class action – –  which was brought against defendant Google Inc. (“Google”) to challenge its scanning of books and display of  “snippets” for on-line searching – –   to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners.  Indeed, the ASA would give Google a significant advantage over competitors,rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyondthose presented in the case. . . .

Read More…

Best of 2009: Don’t be evil, much

Posted February 7, 2009.google-logo-874x288

It was bad enough that the government has gone “in house” on copyright issues.  Now not only is the government looking more and more “bought” on this, but the “Don’t be evil” kids — again, via Glenn — also continue to confirm everyone’s worst fears.  (No they’re not the government… not yet…)  First it was the turnover of YouTube to the RIAA.  Now it’s Google’s Blogger empire. This from TechDirt:

[M]any music bloggers are now fighting a much more invisible menace, with posts they’ve written suddenly disappearing from their sites (via Tyler Hellard) hosted on Google’s Blogger platform. An RIAA source says that the group sends Google a list of URLs it doesn’t

10 Years of LIKELIHOOD OF CONFUSION®

10 Years of LIKELIHOOD OF CONFUSION®

like, and Google “then deals with the problem.” Google says that it notifies bloggers after their posts have been taken down, in accordance with the DMCA. But it should hardly be surprising that many of those affected say they’ve gotten no such notice, nor that the offending material was either legally posted and/or supplied by the labels themselves.

Maybe.  Read More…

Best of 2008: Which exit did we get off, again?

Posted on September 7, 2008.

Well, maybe we’ve been too hard on the Democrats here at LIKELIHOOD OF CONFUSION®.  Perhaps unlike the GOP, they’ve got good, progressive IP counsel out there, and maybe an Obama Administration will take a more realistic view of what you can and can’t do on the Internet.  At least we know they don’t have any hangups about “deceptive key word advertising” or “Internet traffic diversion,” the modern bugaboos of Internet trademark litigation.  Turns out they think those things are pretty keen!

10 Years of LIKELIHOOD OF CONFUSION®

10 Years of LIKELIHOOD OF CONFUSION®

Above is a screen shot (click for full size) of a search result you got if you searched Google for SARAH PALIN SPEECH on Saturday night — note the sponsored link on top, in color, that links to the Democratic Convention website, DemConvention.com:

The link tells Internet users they’re going to a page called DemCovention.com/RNC.  Wow, are they showing the Palin speech in order to get you to compare it critically to what the DNC has to offer?  It’s comparison shopping, right?  A modern-day Miracle on 34th Street!

Well, no.  Here’s what you actually get: Read More…

Best of 2007: MoveOn.org giveth

Originally posted on October 15, 2007.

But does it then taketh away? Wired reports:

The left-leaning political advocacy group, MoveOn.org, is backing down in a flap over the use of its name in online advertisements, permitting an influential Republican senator to criticize the organization in a reelection ad on Google’s search engine.”We don’t want to support a policy that denies people freedom of expression,” says Jennifer Lindenauer, MoveOn.org’s communications director.

MoveOn has withdrawn its instruction to Google not to run ads utilizing its trademark, MOVEON.ORG.

That certainly sounds like the right thing to do if you’re “progressive,” or even if you’re not. In the article, Lindenauer says that the concern was not with the content of critical advertising, but with potential fraud — unauthorized advertisers raising funds in MoveOn’s name.

Ron Coleman on Fox News

The video of the post of the blog

Google remains unmoved, not surprisingly (U/D: “This doesn’t get Google off the hook”); its policy is still stuck at “maximum protection for Google,” ostensibly at the cost (to Google) of advertising dollars, in exchange (for Google) for a reduced exposure to involvement in lawsuits. The cost to third parties and to the public of this policy, which treats any use of a trademark as a potentially actionable trademark use, is incalculable — but that is not Google’s problem.

Advice to all public figures and organizations seeking to avoid criticism via Google advertising: Claim trademark in your name! (So? Is Google keyword advertising the only channel by which people can broadcast their opinions about public issues? — ed. No, but it’s an important enough medium that one of the most dominant companies in the world is built on it!)

One more thing: MoveOn left the door open, perhaps not intentionally, to slamming it right back closed again. Here’s what it told Wired:

“When we became aware of all the controversy around it, we opted out,” Lindenauer says. “Of course we support free speech, and the right of anyone to parody us, but what we do care about is protecting our members — we don’t want anyone using our name or logo in a way that could harm our members and mission.”

That’s a “yeah but” you can drive a Hummer through. Let’s see what happens down the road. We won’t be moving on so fast on this.