Legal Archive

What if Apple loses its Supreme Court App Store antitrust appeal?

Earlier this week, the Supreme Court officially picked up the long-running antitrust case Apple v. Pepper. The court will decide whether iPhone users can sue Apple for locking down the iOS ecosystem, something the suit's plaintiffs say is creating an anti-competitive monopoly.

Apple v. Pepper could theoretically affect how tech companies can build walled gardens around their products. The Supreme Court isn't going to make a call on that specific issue, but its decision could affect people's relationship with all kinds of digital platforms. Here's what's at stake when the Supreme Court case starts, which should happen sometime in the next year.

Sideloading code on a computer you own should not void any warranties.

The EU’s bizarre war on memes is totally unwinnable

On June 20, the European Parliament will set in motion a process that could force online platforms like Facebook, Reddit and even 4chan to censor their users' content before it ever gets online.

A proposed new European copyright law wants large websites to use "content recognition technologies" to scan for copyrighted videos, music, photos, text and code in a move that that could impact everyone from the open source software community to remixers, livestreamers and teenage meme creators.

Anybody who has ever had any dealings with YouTube's Content ID system will know just how terrible of an idea this is.

Washington sues Facebook, Google over political ad spending

Facebook and Google were paid millions for political advertising purposes in Washington but failed for years to publish related information - such as the advertiser's address - as required by state law, alleges a lawsuit by the state's attorney general.

Washington law requires that "political campaign and lobbying contributions and expenditures be fully disclosed to the public and that secrecy is to be avoided".

PUBG takes US game firm to court

Korean game developer PUBG, a subsidiary of Bluehole, has filed a copyright violation lawsuit against U.S.-based Epic Games, asking a court to determine whether the latter's "Fortnite" was copied from the former's "PlayerUnknown's Battlegrounds."

A PUBG official said Friday that the firm filed an injunction, alleging copyright infringement, with the Seoul Central District Court against Epic Games Korea.

This is crazy. The two games share the same premise, but are entirely different in almost every element of execution. The games industry has always been refreshingly progressive in the way it handles copying ideas - it is entirely normal for revolutionary ideas and new gameplay elements to rapidly spread throughout the industry. This is one of the main reasons why the gaming world hasn't really stagnated, and keeps coming up with new ideas and fresh takes, and also why small studios and even lone developers are relatively free to make whatever they want, copying ideas left and right.

If this case ever gets any serious traction, it will have a seriously chilling effect on the industry.

‘Crush them’: oral history of the lawsuit that upended Silicon Valley

Nineteen-ninety-eight changed the course of technology, which is to say that it changed the course of history. A nearly bankrupt relic of '80s tech nostalgia released a gumdrop-shaped PC called the iMac. An innovative search engine originally known as BackRub became a company with an even stranger name. A fast-growing online bookstore hatched a plan to start selling, well, everything.

In hindsight, these were tectonic shifts, but they hardly registered as tremors compared to the earthquake emanating from Washington, D.C. On May 18, 1998, the U.S. Justice Department and 20 state attorneys general filed an antitrust suit against the most powerful tech company in America: Microsoft.

How the world has changed - now we look towards Brussels for monopoly-busting. In the current political climate I the US, it's highly unlikely that technology companies today will be treated the same way Microsoft was 20 years ago.

US news sites block EU readers due to GDPR

This article is terrible, and clearly chooses sides with advertisers and data harvesters over users - not surprising, coming from Bloomberg.

For some of America's biggest newspapers and online services, it's easier to block half a billion people from accessing your product than comply with Europe's new General Data Protection Regulation.

The Los Angeles Times, the Chicago Tribune, and The New York Daily News are just some telling visitors that, "Unfortunately, our website is currently unavailable in most European countries."

With about 500 million people living in the European Union, that's a hard ban on one-and-a-half times the population of the U.S.

Blanket blocking EU internet connections - which will include any U.S. citizens visiting Europe - isn't limited to newspapers. Popular read-it-later service Instapaper says on its website that it's "temporarily unavailable for residents in Europe as we continue to make changes in light of the General Data Protection Regulation."

Whenever a site blocks EU users, you can safely assume they got caught with their hands in the user data cookie jar. Some of these sites have dozens and dozens of trackers from dozens of different advertisement companies, so the real issue here is even these sites themselves simply have no clue to whom they're shipping off your data - hence making it impossible to comply with the GDPR in the first place.

The GDPR is not only already forcing companies to give insight into the data they collect on you - it's also highlighting those that simply don't care about your privacy. It's amazing how well GDPR is working, and it's only been in effect for one day.

Judge rules Trump can’t block users on Twitter

A federal district court judge on Wednesday ruled that President Trump can't block people from viewing his Twitter feed over their political views.

Judge Naomi Reice Buchwald, of the U.S. District Court for the Southern District of New York, said President Trump's Twitter account is a public forum and blocking people who reply to his tweets with differing opinions constitutes viewpoint discrimination, which violates the First Amendment.

I'm sure an autocrat like Trump will respect the wishes of a court. I mean, it's not like he has a history of attacking courts and judges, right?

GDPR hysteria

In another week the GDPR, or the General Data Protection Regulation will become enforceable and it appears that unlike any other law to date this particular one has the interesting side effect of causing mass hysteria in the otherwise rational tech sector.

This post is an attempt to calm the nerves of those that feel that the(ir) world is about to come to an end, the important first principle when it comes to dealing with any laws, including this one is Don’t Panic. I’m aiming this post squarely at the owners of SME’s that are active on the world wide web and that feel overwhelmed by this development. A bit of background about myself: I’ve been involved in the M&A scene for about a decade, do technical due diligence for a living (together with a team of 8). This practice and my feeling that the battle for privacy on the web is one worth winning which has led me to study online privacy in some detail puts me in an excellent position to see the impact of this legislation first hand as well as how companies tend to deal with it.

The GDRP is not nearly as draconian or complex as people are scared into believing (mostly by people who conveniently also sell GDRP compliance services). Over the past few weeks and months, I've translated countless internal and external corporate documents about the GDPR from companies both big and small, for all kinds of sectors, many of which you know, and none of them are freaking out and none of them find this particularly difficult or complicated. Even a legal simpleton like me understands it just fine, and all I need to do is translate texts about it.

Senate votes to reinstate net neutrality

The Senate has voted to save net neutrality, but don’t get your hopes up: there’s still a long, likely impossible journey ahead if the policy is to be saved in the immediate future.

In a 52-47 vote today, senators voted to overturn the Federal Communication Commission’s Restoring Internet Freedom Order, which took net neutrality rules off the books. They were able to do so using the Congressional Review Act, or CRA, which allows Congress to reverse recent decisions by government agencies. Republican control of Congress means that such a measure wouldn’t normally even make it up for a vote; but the CRA allows senators to force a vote by obtaining 30 signatures.

All 49 Democrats voted in favor, as well as Republican Senators Susan Collins, of Maine; John Kennedy, of Louisiana; and Lisa Murkowski, of Alaska.

This is a step in the right direction for the US, but corruption runs deep, so this fight is far, far from over. Still, a victory is a victory.

About the General Data Protection Regulation

Regulation (EU) 2016/6791, the European Union's new General Data Protection Regulation ('GDPR'), regulates the processing by an individual, a company or an organisation of personal data relating to individuals in the EU.

It doesn't apply to the processing of personal data of deceased persons or of legal entities.

The rules don't apply to data processed by an individual for purely personal reasons or for activities carried out in one's home, provided there is no connection to a professional or commercial activity. When an individual uses personal data outside the personal sphere, for socio-cultural or financial activities, for example, then the data protection law has to be respected.

A complete guide and overview of the new GDPR going into effect in the EU later this month. It's a very comprehensive set of privacy regulations that virtually all technology - and others - will have to comply with.

Microsoft responds to Eric Lundgren case

As a follow-up to the story about Eric Lundgren being sentenced to prison, Microsoft published a blog post with "the facts" about the case.

In the last few days there have been several stories about the sentencing of Eric Lundgren in a case that began in 2012, and we have received a number of questions about this case and our role in it. Although the case was not one that we brought, the questions raised recently have caused us to carefully review the publicly available court documents. All of the information we are sharing in this blog is drawn from those documents. We are sharing this information now and responding publicly because we believe both Microsoft’s role in the case and the facts themselves are being misrepresented.

As a counterpoint to Microsoft's blog post, Techcrunch's Devin Coldewey claims Microsoft is trying to spin "the facts".

Earlier this week Eric Lundgren was sentenced to 15 months in prison for selling what Microsoft claimed was "counterfeit software", but which was in fact only recovery CDs loaded with data anyone can download for free. The company has now put up a blog post setting "the facts" straight, though it's something of a limited set of those facts.

"We are sharing this information now and responding publicly because we believe both Microsoft's role in the case and the facts themselves are being misrepresented," the company wrote. But it carefully avoids the deliberate misconception about software that it promulgated in court.

At this point, we've covered all the possible angles on this story.

E-waste guru going to prison

Eric Lundgren is resigned to doing prison time. After spending his life working on e-waste recycling programs, Lundgren was arrested and charged with "counterfeiting" Microsoft restore discs, part of a controversial, years-long legal fight that ended this week when an appeals court declined to overturn a lower court's decision.

This is one of those cases where it's very easy to hide behind the letter of the law, but anybody with more than two independent braincells to rub together should realise this man should not be in prison. Laws exist to serve man; man does not exist to serve laws. Nothing is more dangerous to a society and civilization than people believing law rules over man.

US investigating AT&T, Verizon over wireless collusion claim

The Justice Department has opened an antitrust investigation into potential coordination by AT&T, Verizon and a telecommunications standards organization to hinder consumers from easily switching wireless carriers, according to six people with knowledge of the inquiry.

In February, the Justice Department issued demands to AT&T, Verizon and the G.S.M.A., a mobile industry standards-setting group, for information on potential collusion to thwart a technology known as eSIM, said two of the people, who spoke on the condition of anonymity because the details are confidential.

The problem, of course, is that in the US, these carriers bribe corrupt politicians to enact laws to hinder competition, for instance by making community broadband initiatives illegal. I doubt investigations like these will do anything to fix the root cause.

But hey, it's a start.

Federal court overturns Oracle v. Google

A US federal court has overturned the jury's decision in favour of Google from 2016.

Google's use of Java shortcuts to develop Android went too far and was a violation of Oracle's copyrights, the U.S. Court of Appeals for the Federal Circuit ruled Tuesday. The case - first filed in 2010 - was remanded to a federal court in California to determine how much the Alphabet Inc. unit should pay. Oracle had been seeking $8.8 billion, though that number could grow. Google expressed disappointment and said it's considering its next steps in the case.

The dispute, which could have far-reaching implications for the entire software industry, has divided Silicon Valley for years between those who develop the code that makes software steps function and those who develop software programs and say their "fair use" of the code is an exception to copyright law.

"It's a momentous decision on the issue of fair use," lawyer Mark Schonfeld of Burns & Levinson in Boston, who's been following the case and isn't involved. "It is very, very important for the software industry. I think it's going to go to the Supreme Court because the Federal Circuit has made a very controversial decision."

This could be one of the absolute worst legal decisions in technology history.

A $1.6 billion Spotify lawsuit is based on player pianos

Spotify is finally gearing up to go public, and the company’s February 28th filing with the SEC offers a detailed look at its finances. More than a decade after Spotify’s launch in 2006, the world’s leading music streaming service is still struggling to turn a profit, reporting a net loss of nearly $1.5 billion last year. Meanwhile, the company has some weird lawsuits hanging over its head, the most eye-popping being the $1.6 billion lawsuit filed by Wixen Publishing, a music publishing company that includes the likes of Tom Petty, The Doors, and Rage Against the Machine.

So, what happened here? Did Spotify really fail to pay artists to the tune of a billion dollars all the while losing money? Is digital streaming just a black hole that sucks up money and spits it out into the cold vacuum of space?

The answer is complicated.

The answer involves something called "player pianos". You can't make this stuff up.

Trump blocks Broadcom’s bid for Qualcomm

President Trump on Monday blocked Broadcom's $117 billion bid for the chip maker Qualcomm, citing national security concerns and sending a clear signal that he was willing to take extraordinary measures to promote his administration’s increasingly protectionist stance.

In a presidential order, Mr. Trump said "credible evidence" had led him to believe that if Singapore-based Broadcom were to acquire control of Qualcomm, it "might take action that threatens to impair the national security of the United States." The acquisition, if it had gone through, would have been the largest technology deal in history.

This US administration would eventually stumble onto doing the right thing - infinite monkeys and all that - so here we are. To explain why this is a good move, Ben Thompson's article about this issue is a fantastic, must-read explainer.

There is a certain amount of irony here: the government is intervening in the private market to stop the sale of a company that is being bought because of government-granted monopolies. Sadly, I doubt it will occur to anyone in government to fix the problem at its root, and Qualcomm would be the first to fight against the precise measures - patent overhaul - that would do more than anything to ensure the company remains independent and incentivized to spend even more on innovation, because its future would depend on innovation to a much greater degree than it does now.

The reality is that technology has flipped the entire argument for patents - that they spur innovation - completely on its head. The very nature of technology - that costs are fixed and best maximized over huge user-bases, along with the presence of network effects - mean there are greater returns to innovation than ever before. The removal of most technology patents would not reduce the incentive to innovate; indeed, given that a huge number of software patents in particular are violated on accident (unsurprising, given that software is ultimately math), their removal would spur more. And, as Qualcomm demonstrates, one could even argue such a shift would be good for national security.

Can the United States search data overseas?

Should the United States government be able to conduct a search of your emails if they are stored on a server in another country, or does the government’s right to examine digital evidence stop at the border?

That is a central question in United States v. Microsoft, a case scheduled to be argued on Tuesday before the Supreme Court.

Both sides in the case have legitimate concerns. If the court sides with Microsoft and declines to allow searches for data stored in another country, the government will be hampered in investigating crimes like terrorism, child pornography and fraud.

If the court sides with the government and rules that it may demand data stored overseas by American companies, those companies will find it much harder to do business abroad. This is because many foreigners fear that United States warrants authorizing such searches will disregard privacy protections afforded by their country. The government of Germany, a country with stringent privacy laws, has already indicated it will not use any American company for its data services if the court decides to allow searches.

At this point, I feel like it's just safer to assume all data stored online or sent from one device to the next is essentially not secure in the sense that no one will be able to read if they really wanted to. It's not the way it should be, but I don't think there's a whole lot we can do about it - regardless of the outcome of legal cases such as this one.

Eric Lundgren faces prison for trying to extend life span of PCs

Eric Lundgren is obsessed with recycling electronics.

He built an electric car out of recycled parts that far outdistanced a Tesla in a test. He launched what he thinks is the first "electronic hybrid recycling" facility in the United States, which turns discarded cellphones and other electronics into functional devices, slowing the stream of harmful chemicals and metals into landfills and the environment. His California-based company processes more than 41 million pounds of e-waste each year and counts IBM, Motorola and Sprint among its clients.

But an idea Lundgren had to prolong the life of personal computers could land him in prison.

One of those cases that fills any decent human being with rage.

Verizon, Apple continue to lobby against your ‘right to repair’

Third party phone repair shops say that phone makers like Apple and game console makers like Sony and Microsoft have effectively monopolized repair, using their size and power to drive smaller companies out of business.

Verizon and Apple have worked in union to thwart such bills in several states, but traditionally don't like to publicly talk about their lobbying on this front. They now have another state to worry about, with Washington State considering their own right to repair bill, created in the wake of outrage over Apple's decision to throttle the performance of older phones to (Apple insists) protect device integrity in the wake of failing battery performance.

I've said it a million times by now, but I see no reason why computers should be treated any different than cars: PC and phone makers should be forced to publicise the necessary information to allow third-party repair shops to repair their devices, all without voiding warranty.