No Impact At All

When Giants Battle, The Little Guy Loses

Executive Order To End Patent Wars?

Glasses.com is owned by 1-800 Contacts, a much larger online eyewear retailer that recently purchased an old patent from a defunct company (U.S. Patent 7,016,824 covers selling glasses online based on 3D models) and announced its own version of 3D try-on software for glasses - while simultaneously filing a patent-infringement lawsuit against Ditto.  

1-800 Contacts claims that it plans to its own service as an iPad app sometime soon. But this plan was first publicized on April 17, 2013, while Ditto launched its version a year ago. 

David vs. Goliath

"It's a game-changing event, truly. It's terrifying," sighed Ditto CEO Kate Endress. "We've had to stop all marketing, every dollar has to go into this litigation." 1-800 Contacts refuses to license the patent to Ditto; instead it's seeking an injunction to stop Ditto from using the software. The only option, as Ditto sees it, is to lawyer-up and try and win the suit. 

Making things even more expensive, 1-800 Contacts is suing California-based Ditto in its home state of Utah. Whatever the outcome of the suit, the most likely result is the depletion of Ditto's cash reserves and the destruction of the company. 

That's because this battle is far from equal. 1-800 Contacts was founded in 1995 and took off thanks to a partnership with Wal-Mart started in 2008. In 2012 it was bought by WellPoint for close to $900 million. Yeah, that WellPoint, the largest for-profit, managed health care company in the Blue Cross and Blue Shield Association, with revenue in 2012 of $61.7 billion and more than 43,000 employees.

"If we win this infringement case, we're still out the millions of dollars we spent winning. That's why it has become punitive for companies to innovate," Endress said. "The patent systems is structured in a way where it lets corporations act like patent trolls where they can buy things they didn't invent." And in this case, "we are literally going up against a giant corporation," Endress noted. 

1-800-Not-Our-Fault

When reached for comment, 1-800 Contacts told ReadWrite:

1-800 CONTACTS and its Glasses.com division have invested significant time and resources into the development of the interactive try-on platform technology and acquiring the appropriate patent rights to protect it. However, we do not comment on pending litigation.  

The EFF was not impressed: "1-800-Contacts says it is not a patent troll. Sure, the company is not a classic patent troll - a shell company that does nothing but buy patents and sue - but it's little better." 

What Makes A Patent Troll?

Could this entire issue be a misunderstanding, where 1-800 Contacts actually spent years pouring money into this concept, only to see a brash startup steal its lunch? Maybe, but 1-800 Contacts' history of aggressive litigation doesn't inspire confidence in that interpretation.

In 2002, the company pursued WellU.com over pop-up advertisements that displayed competitors' products. 1-800 Contacts was granted a preliminary injunction, but WellU won on appeal. In 2008, the company fought with Google over controversial search-related provisions of a Utah trademark law that were eventually repealed. And in 2010, 1-800-Contacts sued Contact Lens King, Inc. over key-word advertising. 

Despite the odds, Endress vows that, "We're going to vigorously defend ourselves. We're so proud of what we built. Maybe we can become cash flow positive and survive." The EFF is asking for help in trying to invalidate the patent in question, but no matter how the legal complications unfold, the road Ditto faces will certainly be long and expensive.

Images courtesy of Ditto.

If you spotted animal cruelty, would you react any differently if you discovered it wasn't really an animal but a robot? How about if it looked and behaved like a real dog — and even whimpered in pain? What if your daughter enjoyed pulling whiskers off the family cat — but it, too, was just a robot? Would that set off any alarms?

Kate Darling, a lawyer and Ph.D. candidate in the field of Intellectual Property and Law & Economics at the Swiss Federal Institute of Technology in Zurich, explores such questions in a series of experiments that examine how people interact with "social companion" robots (emphasis added):

At first glance, it seems hard to justify differentiating between the legal treatment of a social robot, such as a Pleo dinosaur toy, and a household appliance, such as a toaster. Both are man-made objects that can be purchased on Amazon and used as we please. Yet there is a difference in how we perceive these two artifacts. While toasters are designed to make toast, social robots are designed to act as our companions.

(See also: The ReadWrite Q&A with Kate Darling, below.)

Robots are all around us. Not Blade Runner-like android robots, of course. Not yet. Today's robots are used in medicine, to help build our cars, manufacture our smartphones, and in some cases, to clean our floors.

Such robots are typically developed for a specific purpose. They look, unsurprisingly, like nothing more than a functional machine. But not all. Some robots look "alive," like the popular Pleo They are designed as companions. Expect them to get better, more lifelike, more responsive — more like actual companions, in other words.

Do these robots deserve legal protection similar to what we now provide pets, for example, or horses? Your initial reaction may be, Of course not. But what if this social robot served as the equivalent of your family dog and someone came along and stole it, abused it and "killed" it? Then posted video on YouTube? (Go ahead — take our poll on the right, then sound off in comments.)

In her 2012 paper, "Extending Legal Rights to Social Robots," Darling makes it clear why people often find it more troubling to witness or incite violent or abusive acts on a "social robot" as opposed to a more machine-like, functional robot:

Studies involving state-of-the-art technology already indicate that humans interact differently with social robots than they do with other objects. 

Robotic toys, household robots, and personal-care robots that interact with us on a social level generate stronger psychological attachments than we experience with everyday objects. This difference in how we perceive social robots could have legal implications.

Rapid advances in robotics, haptic feedback, voice recognition, design, data processing and algorithms are rapidly making highly realistic robot "pets" a reality for many. Nonetheless, that adorable, forever-puppy robot that "bonds" with your children presently has no more legal rights than the power drill hanging on the wall of your garage. 

I spoke with Darling about social robots, typical human responses to them, and potential legal issues we all might face down the road.

ReadWrite: Should we grant rights to social robots?  

Kate Darling: That's really up to society to decide. But there are two reasons it could make sense to give social robots some legal protection beyond the property right of the owner. The first is that if people feel strongly enough about it, for example the way that we feel about protecting certain animals from abuse, we might want the law to reflect that social preference.

The second is that we might want to deter types of behavior that could be harmful in other contexts. One theory behind animal rights looks at it not from the viewpoint of the animals' inherent capacities, but rather from the viewpoint of what it says about ourselves if we're willing to treat other creatures or things in a certain way.

RW: Are there examples of rights you would propose for social robots — robot pets?

KD: I would say that analogies to animal abuse laws are helpful — so not "the right to live", but rather protection from being treated in a way that we associate with unnecessary cruelty. 

RW: Should such rules be different based upon what the robot is? A robot dog, for example, versus a robot woman.

KD: I would rather distinguish between robots that are specifically designed to interact with us socially and be anthropomorphized, as opposed to the many other robots, such as factory robots, that are not meant to engage our emotions.

RW: Have any countries (or legal entities) extended legal rights to robots?

KD: Not that I know of.

RW: Have any countries explicitly restricted legal rights of/to robots?

KD: Not that I know of.

RW: What might prompt legal action?

KD: I think (YouTube videos of animal torture). Even with existing technology and very few use cases, the YouTube comments on videos picturing "torture" of robotic toys and pets are strikingly polarized. A lot of people get upset, or at least feel very uncomfortable watching something that they perceive as life-like get abused, accusing the video makers of horrible cruelty. This reaction is likely to become more common and more extreme with the increasing development of robots that are specifically designed to interact with us socially in a cute and sympathetic way.

RW: Have any religious groups promoted or restricted social robot rights?

KD: None that I am aware of. I could imagine that some might be opposed, but that really depends on their respective beliefs.

RW: Do you expect some societies to act first or differently regarding social robots?

KD: Some societies (like Japan and South Korea) seem to accept interaction with robots more easily, which could incentivize a societal push sooner than in other cultures.

Clearly, the ethical and legal implications of robots virtually endowed with human qualities can quickly sends many people down the rabbit hole. But society may be forced to grapple with the issue anyway. What if the robot looks not like the family dog, but like a human being? Is anyone harmed if your teenage son uses a fembot to practice sex with? (Or should that be "on"?)

Even when we can reliably predict aspects of the future, we seem to often miss out the larger implications of what we create. What do you think?

Image of adorable Boston Terrier puppy and Pleo doll courtesy of Wikimedia Commons

The Problem With App Rights

Two weeks ago, Rep. Hank Johnson (D-GA) released the APPS Rights Act, a bill pushing developers to implement self-regulatory practices that would improve the security and transparency of user data in mobile apps. "This bill would require that app developers maintain privacy policies, obtain consent from consumers before collecting data, and securely maintain the data that they collect," Johnson's office writes online.

There's not question that changes are needed. Mobile users must be able to make their information isn't transmitted and sold to third-party vendors. But like similar regulatory efforts, including the recent do-not-track mobile privacy guidelines laid out by the Federal Trade Commission last Friday, and last month's recommendations to the mobile industry from California Attorney General Kamala Harris, there's both good and bad aspects to the specific approach taken by the APPS Rights Act. And unfortunately, there's plenty of bad.

One problem with these guides is that they are penned by people outside of the industry — often in the dark about the best ways to reach their laudable goals. Harris' recommendation and the FTC's suggestions comprised a slew of unenforceable recommendations. The APPS bill, meanwhile, would become a mandate if adopted. A mandate likely to lead to unintended consequences to the mobile marketplace.

Developers Are Worried

Security expert Dan Kaminsky says the slow, muddled, legislative process can create frameworks bearing "no resemblance to the problems that need to be solved." Kaminsky thinks this could lead to applications having to show users exactly what they're doing in a hardware add-on -  akin to web cams having a light that goes on  insuring people are aware of exactly what they're doing.

"What I fear is you won't be able to write code without having to consult a lawyer," he says. And if that happens, Kaminsky adds, developers are likely move away from making mobile apps and return building websites. 

Beyond subjecting users to long, complex terms-of-use agreements, the doesn't do a good specifying what happens to collected data beyond the third parties, says Joe Santilli, the chief executive of the mobile app certification service SafeApp. This gray area is known as data retention. 

"It really doesn't make any provisions whatsoever for how third parties are going to share the data with so-called fourth or fifth parties," Santilli explains. "For example, a marketing partner of an ad network. These people are going to share the data that they cull from these apps... to fourth and fifth parties."

No one knows the length of time personal data will be stored, the rights of users and the process by which they exercise their rights when dealing with third and fourth parties. The APPS bill's withdrawal of consent form is a weak attempt at stemmin the data flow. The Opt Out of App Use function requires developers to delete all data if a user opts out. But that doesn't address the issue of fourth and fifth parties that may already have the data in question:

"By the time the app developer has seen this request from the user, this data has already been shared by the third party (to) the marketing partners, the ad networks, the ad analytics partners," Santilli says. "At this point you can't really put the genie back in the bottle, can you?"

At the same time, having to meet these requirements could kill the drive of young entrepreneurs, says developer Jad Meouchy. "This act will end up creating a barrier for new startups... by doubling development time and creating data management headaches," he predicts. "When you're an indie developer, there are simply not enough resources to address this kind of compliance."

Real-World Example

Benjamin Goering, the technical product manager at Livefyre Labs, manages more than 10 million comment threads and personal user accounts for customers. When those customers upgrade from freemium accounts to enterprise versions, they want their user data and accounts migrated. But if those people have not authorized that data to be shared, Livefyre can't make the transition for them.

But rather than stifle innovation, Goering worries that users won't take the rules seriously if they don't work. "It may be completely ignored if it's out of touch," Goering said. "If it's well legislated, it may be useful to have a framework for safe harbor" where developer can be confident they won't get sued

His team faced that issue when working on a Super Bowl product that aggregates tweets and Instagram photos. This raises the question of whether or not users know shared content is ripe for the plucking. Livefyre bet that users know their shared content may be re-used, and decided not to worry about legal red tape. 

Goering warns that if developers have to wait for lawmakers to resolve everything, "it would be impossible to make week-long projects."

"The nature of the Web is you're requesting a document and receiving it - at some level data is being taken," he says. "Where do you draw that line?"

Photo courtesy of Shutterstock

According to the new law, companies have to ask only once. You can opt out, but if you don't, say goodbye to the rights to your video data for two full years. As per the change, Netflix will introduce new social features that basically link users' Netflix and Facebook accounts and share their viewing history with friends. Netflix was previously unable to do this in the U.S. by the 25-year-old Video Privacy Protection Act (VPPA), which banned the sharing of personal data for anything but law enforcement purposes (even now, Hulu remains in court for previously sharing viewers' info). 

On the surface, sharing viewing history may not seem like a big deal, but the law undermines the privacy of Internet users, and takes away user control over significant amounts of potentially sensitive personal data. 

Looking back, it's ironic this new law even passed, as the VPPA was originally enacted in the 1980s in response to a local Washington newspaper publishing a list of Supreme Court nominee Robert Bork's rented videotapes during his nomination process. At that time, Congress was up in arms over this privacy breach, which helped scuttle Bork's appointment and led to the phrase "borked" entering the language. But less than a month after Bork's passing on December 19, 2012, it seems that Netflix investment of roughly half a million dollars in lobbying Congress to update the law was enough to do the trick. 

The Privacy Issue

Almost one year ago to the day, Marc Rotenberg, the executive director and president of the Electronic Privacy Information Center (EPIC), testified in Congress against the bill, citing his organization's interest in "supporting the rights of Internet users to control the disclosure of their data held by private companies."

"The debate over online privacy and Netflix does not exist in a vacuum," Rotenberg stated at the hearing. "It is becoming increasingly clear that only privacy laws actually safeguard the privacy rights of Internet users."

In an interview with ReadWrite, Rotenberg said he urged the Senate Judiciary Committee to update the law with new safeguards. His warnings were not heeded. "Senator Franken (D-Minn.) and Senator Feinstein (D-Calif.) made some improvements to the House bill but it was still a step backward for online privacy," Rotenberg said. 

So...is sharing bad for online privacy? The experts ReadWrite talked to seemed to think so.

Jules Polonetsky, the director and co-chair of the Future of Privacy Forum, said the the real issue is that people don't know they're sharing. When that sharing is done without user consent and system settings are unclear, it's bad for the public. "This is about the sharing of your records of video rental history, as opposed to on a clear, permission basis, enabling people to key-in sharing mode," he said. "Sharing should be in a clear opt-in basis."

Polonetsky compares the risk to what social video sites Viddy and Socialcam did when they first launched, gaming the Facebook system so anyone playing those companies' videos automatically alerted their Facebook friends to what they were watching. That accidental sharing is a major problem, Polonetsky warned.

"I saw a rabbi I know sharing a fairly raunchy video about girls on bikes, falling off bikes... a conservative, corporate lawyer sharing a somewhat offensive video, none of them clearly understanding that by clicking on some filthy link shared by their friends, to see what the attraction was, they'd be letting hundreds of their friends know and sullying their reputation."  

Rainey Reitman, the Electronic Frontier Foundation's activism director agreed. She said the move is bad for the public because unclear sharing undermines the "strong legal protections put in place to protect video watchers... A major concern is that individuals will enable the function and not realize that it is continuing to broadcast their video watching habits to social networks - for years."

Selling Your Video History?

Another potential problem stemming from the law, Reitman said, is whether video companies will use that information as a commodity and sell it. "Once data is combined with our social media profiles, it can be part of the data used by the online advertising industry for advertising purposes and we'll be forced to rely on the often confusing privacy settings on social networks to protect our video watching history."

Polonetsky said that turning on this stream of sharing data on a service like Facebook would likely increase targeted ads. He added that although this change tot he law has been pushed by Netflix, not Facebook, social sharing is a huge business driver, and ultimately a win for that site. 

"Generally [Facebook's] motto has been, we want a lot of data so advertisers can reach you," he said. "Facebook can and will make available what you're doing, what you're watching, what you're reading, to be used to tailor ads to you on Facebook - and increasingly off of Facebook."

Not All Bad?

The new law is not all bad, said Polonetsky. When it comes to sharing information people do want known, like live Television, sports and films while they tweet or post, it can be a boon for both users and entertainment companies. But it's only positive if people have an on-off switch, and awareness of what they're sharing.

"If you can actually draw together the eyes now watching this video, this game, and comment, I think there's a real positive," he said. Still, he warned that the way the new systems get set up will be critical to the law's long term effects. Again, the key is that people have to know the settings in order for the sharing to benefit them and not inadvertently spread information they'd rather keep to themselves. "It's got to be cut in a way that very affirmatively makes clear that you are in sharing mode so there's no cause for accidents. That's UI design."

Polonetsky isn't the only one who sees the glass half full. Privacy expert and attorney Alan Chapell of Chapell & Associates thinks the old VPPA law was out of date. He pointed to the fact that the law treated the video differently from other content, such as music services like Spotify, which are able to share. 

"The VPPA created a rule set that treated movie consumption differently from book and music consumption," he said. "Drawing that type of distinction in a digital world doesn't make sense. If a consumer wants to be able to tell friends, via Facebook or some other platform, which movies he's streamed via Netflix he should be able to do so."

Chapell is right, people should have the right to share when they want to do so. But the underlying issue is that this new law creates a system where the public could easily end up sharing personal data without their informed consent. 

Photo courtesy of Shutterstock.

The really dumb thing is that this lawsuit never should have happened. Delta was given 30 days notice by the state of California, and it still couldn't make the deadline. There's no excuse for that. It's a privacy policy, made of words, not code. Delta - and any company in that position - should have had a policy up within a week.

So consider this your company's official notice. If you don't have a privacy policy for your mobile apps, write one today. Here are some tips to get started: 

Step 1: Review Your App

Get your app developers and your spec together and perform a 6-step review:

1. Document any collection of personally identifiable information (PII). PII can include but is not limited to:

• Name
• Terrestrial or Email Address
• Phone Number
• IP Address
• Current Location

2. Note whether any of the PII your apps collect (for example, a social security number) is more sensitive than others, and any special steps you take when collecting it.
3. Take special note of your target age range. If your apps knowingly collecting information from users under 13, consult your attorney before continuing.
4. List all the parties (such as ad networks and technology partners) who have access to PII and how it will be used.
5. List all user profile control options: can users request, view, edit or delete their information?
6. Outline data retention and disposal policies for all user data, paying particular attention to canceled accounts.

Step 2: Write Your Policy

With that in hand, it's time to write your policy. If you have an attorney on staff with the requisite experience, start there. If not, there are lots of free templates and tools like the Privacy Choice policy maker to get you started. Customize as you see fit. (There are also plenty of paid services that specialize in privacy policies.)

If you have a privacy policy for your website, you've already done most of the work. Your job now consists of identifying the ways in which your app is different from your website, then displaying your policy in a succinct manner that mobile customers will actually read. The Center For Democracy and Technology (CDT) has an excellent, free resource called Best Practices for Mobile Application Developers that will help smooth out the edges.

Step 3: Review Your Policy 

In all the prettying up, you may have misinterpreted some facts. Run the finished policy past your developers. Then compare your policy to those mandated by any of the app stores that will be distributing your app. The CDT document has some good summaries, but you'll want to check the most recent terms from the stores themselves.

Step 4: Get Certified (Optional)

If you really want peace of mind, take the next step and get your app certified by TrustE. It's not strictly necessary (Google doesn't even require a privacy policy – but California does, so write one!), but it provides users with an additional layer of confidence, and verifies that you've done your job right.

Having a mobile app privacy policy doesn't guarantee you won't get into trouble. But not having one is just asking for litigation.

Lead image courtesy of Shutterstock.

This percentage is pretty depressing, since it's up from 29% of 2010 patent suits and 45% of 2011 lawsuits, but there's some good news buried in the same stats: The total number of defendants sued in all patent lawsuits went down from about 5,600 in 2011 to about 3,000 up through the third quarter of this year.

The rise in patent trolling is a reflection of simple economies of scale, according to Santa Clara University law professor Colleen Chien. Because of the way patent trolls can do work their revenue models, the risk vs. reward of launching any lawsuit are minimized… and what risks there are can be spread across suing multiple defendants. 

Just Don't Call Them Trolls

Chien doesn't like to use the term "patent trolls," or even "non-practicing entities." Instead, she prefers to describe companies that generate revenue solely through the enforcement of intellectual property they have acquired as patent assertion entities (PAEs). 

Sheesh. But there's also some evidence that these PAEs actually do some good in the start-up ecosystem.

To understand why it's suddenly more profitable to be a PAE (and the role PAEs play), it's helpful to understand how the costs of traditional lawsuit add up. When a company like Apple sues Google over patents, there are a lot of up-front costs sunk into the lawsuit, such as the direct costs of research, discovery and hiring a legal team. Add to that the indirect costs, such as getting countersued, and damage to the plaintiff's reputation. Stack those costs against the unknown reward of a settlement or judgment, and it's clear that launching a suit isn't worth it unless the payoff is really big.

Trolls Can Sue For Less

PAEs, right off the bat, have several advantages in this environment.

First, forget about the indirect costs: you can't countersue a PAE, and seriously, how much worse can the reputation of troll get?

The direct costs are kept down by hiring law firms on contingent fees… they get paid only when they win or get a settlement. This can lower the up-front legal fees by 75%. To further mitigate this cost, PAEs often name multiple defendants, spreading the net while keeping the direct legal fees down. That can also lower the risk of losing a judgement.

Ironically, the way PAEs have scaled the lawsuit economy not only makes it easier for PAEs to assert their patents, but also makes it more economical for defendants to settle, no matter the merits of the case. Because the plaintiff costs are lower than the defense's costs, and because there's always the risk of a huge settlement or judgement, it simply makes sense for defendants to suck it up and settle earlier.

The model is fueling a cottage industry of these PAEs, and patent lawsuits in general. In 2010, there were 2,521 patent lawsuits in the U.S. In 2011, that number rose to 3,353. And through Dec. 1, the number of patent lawsuits filed in 2012 was a whopping 4,171.

Despite the numbers of lawsuits going up, the number of actual defendants is going down. In 2011, PAEs alone named a high of 3,018 defendants. Through 2012's third quarter, PAE sued only 1,788 defendants.

Chien believes the drop is due to new rules in the America Invents Act. "It's harder to name more defendants per suit, requiring PAEs to split their suits up and making it 'not worth it' to sue smaller companies," Chien wrote in her presentation. But it's not clear if these lawsuits are netting PAEs more or less money, because of the non-public way many of these lawsuits get settled out of court.

Do Patent Trolls Perform A Service?

Chien argued that PAEs, which tend to target smaller companies that might be more more likely to settle, can also be of actual benefit to smaller startups. PAEs can buy or litigate the patents of startups or individual investors looking to raise money by monetizing their own patents. They can sell the patents outright to the PAE or have the PAE litigate for patent licensing revenue on their behalf.

But value is tempered by the fact that smaller companies often find themselves in a PAE's cross-hairs. It can be like winning the lottery for a PAE to send a summonds toward a hot new startup that's getting a lot of funding. Put both sides together and it's not clear if PAEs are harming or helping the startup ecosystem. Chien asserts that business model is compelling enough to warrant a shift in the perception of PAEs as "trolls."

"Vilifying 'trolls' won't make them go away. But understanding and challenging their economics might," Chien told me after this article was initially posted.

Can Companies Fight Back?

Fighting PAEs can be hard, but it's not impossible. Chien notes that in the 1880s, the railroads got hammered by inventors' patent lawsuits even as they were expanding throughout the country and pulling in huge revenue. The railroads eventually banded together with patent associations, and individual inventors were forced to drop their lawsuits. It could be argued that the railroads squashed plenty of legitimate patent assertions, but history gives the railroads the win.

Similar patent associations may be the key to checking the PAEs that now dominate the patent legal system. Otherwise, startups are going to remain in a world of legal pain.

Image courtesy of Shutterstock.

According to a report in the Guardian, the offending materials suggested that Trkulja was a criminal and that rivals had hired a hitman to kill him. Though he had been shot in a restaurant in 2004, Trkulja has never been convicted of any criminal activity. But people said otherwise on the Web, and they published images as well, so Google did its job and indexed those search results.

Whose Fault Is It?

Trkulja's lawyers began contacting Google in 2009 asking for these search results to be removed, but Google told them to take it up with the publishers of the content instead. That's how this Internet thing works. If someone publishes lies about you, it's their fault - not the fault of the people and companies who read those lies and link to them.

He sued Yahoo, which hosted the site that defamed him, and won $225,000 in damages in March. Not content with that, Trkulja sued Google for linking to the site that defamed him. Google maintained that it is not a publisher, but the jury was not convinced. It concluded that Google should have taken down the offending material after Trkulja put it on notice, and it awarded damages of $200,000. In the eyes of this court, Google is liable as a publisher, even though it merely indexed Web content published by others.

We got the same PR response from Google as the Guardian did in response to the ruling:

"Google’s search results are a reflection of the content and information that is available on the web. The sites in Google's search results are controlled by those sites' webmasters, not by Google."

A source close to the situation tells us that Google is considering an appeal.

A Bad Precedent That Breaks The Web

This is not a good ruling. It breaks the Web. It is unfortunate that Trkulja was put in this situation, though, and he's far from alone. I've covered other recent injunctions against Google for algorithmic auto-complete suggestions that put people's names next to unsavory terms. This is not publishing. This is statistics. Google's tools are merely reflecting the live state of the Web.

But Google is the gateway to the Web for millions of people, and what is true on Google is simply the truth as far as many uncritical searchers are concerned. Google should not be held responsible and asked to doctor its Web results. But people also should not have to deal with the fallout from false information about them that happens to rank well in search.

Clearly Google has to keep improving its reputation signals for the sites in its index, so it can more reliably filter out false information. But this ruling in Australia, if it stands and spreads to other countries, is not a workable solution.

Requiring Google to censor itself does not solve the problem. Google is not a publisher. It's the responsibility of publishers to make sure the information they publish is accurate.

Lead image courtesy of Shutterstock.

So perhaps there is some satisfaction in seeing Apple get smacked for the very thing it keeps accusing others of doing.

Yesterday a federal court in Dallas ruled that Apple must pay $368.2 million to a patent troll called VirnetX because its FaceTime videoconferencing software infringes on some patents owned by VirnetX.

That's pocket change to Apple, which posted $41.7 billion in net profit on $156.5 billion in revenues in the fiscal year that ended in September.

But VirnetX wants more -- it has filed a complaint with the International Trade Commission asking to have a bunch of Apple products (iPhone, iPad, Macs) banned from the market. 

Apple has no comment. But of course Apple will appeal, and of course the case will drag on.

What Is The Point?

And of course this is all lunacy. The real lesson to this and all of the other Apple-related cases is that the patent system is ridiculous and has become an obstacle to innovation, one whose ultimate victims are customers.

In the tech world it's considered depicable when trolls like VirnetX use patents to shake companies down for money.

But is it any less despicable to cynically use the legal system to put a spoke in the wheel of your rivals? Or to use the legal system as a kind of marketing tool, a way to smear your opponents?

Because that's what Apple is doing with its cases against Samsung, HTC and Motorola. 

Apple doesn't want to set up licensing agreements. Apple just wants to distract its opponents and slow them down. 

Marketing By Lawsuit

Apple's patent lawsuits are also a form of marketing, albeit an expensive one, whose goal is to generate lots of stories in the media and to hammer home, via repetition, the notion that everyone else in the smartphone market is simply copying Apple, producing me-too clones that are poor imitations of the iPhone and iPad.

One court in England saw through the charade and resented the notion of being used as a propaganda tool by a large multinational corporation.

Consequently the court ordered Apple to apologize publicly to Samsung for making false allegations and buy advertisements declaring that Samsung did not, in fact, copy Apple.

Apple shamelessly and brazenly tried to turn that to its advantage, creating an "apology" that was really just another ad taunting Samsung. The annoyed judges ordered Apple to do the apology again, only this time to follow their instructions. 

The good news is that these lawsuits, all of them, are just speedbumps that will not stop the mobile revolution and probably won't affect the balance of power in the smartphone market.

Back in 2010, when Apple first launched its legal jihad against Android phone makers, Android had 23% market share and Apple had 15%. Today Apple still has the same 15% share -- but Android now holds 75%.

So much for the efficacy of lawsuits as competitive weapons. Someday, I hope, companies will figure out that these things don't work. And someday the patent laws in this country will be updated for the 21st century. Fingers crossed.

Image courtesy of Shutterstock.