German users of Hackathon beware … You might be infringing trademark!

Via GrokLaw, I learned that someone managed to trademark Hackathon in Germany!

Am I surprised? Partly no and party yes. I am not surprised because the (1) It is arguable that English speaking countries’ Trademark Office will be aware of the common use of the word ‘Hackathon’ to reject the trademark application let alone a German speaking one;  (2) An argument can be made that ‘Hackathon’, when used in a meaning rather than Hacking + Marathon, can qualify for trademark protection; and (3) A word common in one language might be judged unusual enough to another language/culture setting to be granted Trademark. Don’t believe my argument #2? Just look at how many “Princess Diana” trademarks got registered when the poor princess died in a car accident back in the 1990s. To add salt to injury, it is her own countryman registering them in her country.

I am surprised that in this day and age they think they could get away with it, especially with a word that will irk the people most apt with the very new  technology that make mass pressure easy!

We should fight the trademarking of the word Hackathon in Germany. In fact, on first reading, I thought it is time to raise the money to fight rather than waiting for the company to fulfill the promise to cancel the mark which is PJ’s preferred way. Then I gave it 10 minutes and agree that PJ’s way is better. Lets give the company the benefit of the doubt that it is going to do that. However, as PJ implied, we have to be vigilant and check in a latter date that they do. If not, lets take a stand and see where  the law stands.

No mate, LSE did not put you in danger, you did

A few days ago I said that by providing cover for a journalist, LSE students put academics working in danger zone at risk. Universities UK had issued a Press Release on similar line.  I am glad I am not the only one who noticed this as an big issue. [Declaration of Interest: Universities UK provided a large part of my tuition fees for my PhD studies back in the late 90s to early 2000]

I also noted that the LSE students involved claimed that by going public, LSE put them at more risk. I disagree with them. Their affiliations will be public knowledge once BBC broadcasted the Panorama programme. There is no way to hide it even if the BBC footage avoid showing them at all. With a bit of research, People will put two and two together. That is assuming that nobody choose to ‘leak’ the information. As LSE’s reply to them clearly indicated, at least one party already threaten to release their affiliation details. Smarter ones among them would had realized that there is no way to hide their affiliations once they see John Sweeney and know that it is a Panorama programme.

As for their claim that there is informed consent, I do not think they are best-placed to judge it for themselves. It is a complex issues and they are  stakeholders in it. Only an disinterested bystander familiar with the issues of informed consent and the situation can make a judgement. For example, if it is very important for them to be on the trip (and I have to stress that it is not the case here), then one can easily make the case that they cannot give informed consent. Period. It does not matter whether the decision to allow Panorama to come along rest on majority or unanimous decision because one have to assume they are under undue pressure, whether they realized it or not.

My cursory examination of the issue says that if  Mr Sweeney’s identity and the Programme name where made available to them in the UK before they left then we have informed consent. They are adults and I do not think there is undue pressure on them. Mr Sweeney and Panorama is in a different league than say, a correspondent from another BBC programme. In this case I would argue the identity of the reporter and programme is an important parcel of the informed consent process. Thus, knowing the identity of the journalist and program only when they are in China means  the students have too much committed to be able to give informed consent.

I also cannot believe the how naive the students are when they wrote in their letter that “nothing happened… which would indicate that we were put in danger”. They were lucky. There won’t be anything hint that indicate you are in danger. Even if there was, there will be no escape route.  It would take the British Embassy there days if not months to work out where you are let alone getting you out of the country.

The sad thing is, and there is no way the student would know before hand, except for video footage that looks like someone went for a tour in a third world country, nothing in the Panorama programs that indicate it is worth the risk. People says it contain nothing that a tour trip to North Korea would not show, and I tend to agree. All it did is to provide enough video footage to make up a TV program. There is nothing much in there that North Korea do not want tourist to see. As for BBC claims of public interest? After watching the program, I think the only justification for it being “in the public interest” is because since North Korea is in the news, anything BBC shows about North Korea would automatically qualify as Public Interest.  In m opinion, it is there is the content of the program that make the public interest claim. It reveals nothing here that makes the risk of the trip worthwhile.

BBC +1, North Korea -1, Academic Research -10

I do not normally comment on political issues, but I think I do need to comment on BBC going undercover with LSE students in North Korea because of its wider implication on academic research, something the Press seems to have either no interest of, or that I am wrong by raising this issue.

BBC got its programme, so it is one up for BBC. North Korea was deceived, so it is one down for North Korea. This much is  clear.

I am going to skip over the question of whether the LSE students were capable of  giving ‘informed consent’. ‘Informed consent’ is a very complicated issues involving how much one knows and when one knows about it.

And I am also skipping over the issue  whether there is  conflict of interest over the trip. I am leaning towards no conflict of interest, but the fact that the presenter spouse organized the trip do raise eyebrow. If the case is taken any further, I hope this issue is examined. I cannot take the fact that no party raise  this as an issue as no issue because both parties has something to lose by indulging in this issue.

What I am going to concentrate on is whether the LSE students are right to allow BBC to go undercover with them. I am assuming proper ‘informed consent’ and they did know it is going to be a big documentary. I think they are wrong.

Before I continue, I have to put my disclaimer in now: I am working in an academic-support role.

The reason I think they are wrong is because they did not uphold the principle of academic neutrality. Yes, we always had academics working as spy, or spy posing as academics. We also always have journalist posing as academics (as in the case here). I believe one should defend academic neutrality by not getting involve in these skullduggery.

Why? A lot of real bona fide academics rely on neutrality to protect them and to allow them to carry out valuable works, especially in conflict zone or where the political situation is hostile. They manage this because of the trust others give them. The LSE students had just destroyed this trust and put everyone of them at risk by raising suspicion on them. They should not had allowed BBC or anyone to tag along. Now everyone is going to be suspicious of all academic research activities. This damages academic research in a way that is difficult to repair. All for what? A throw-away TV programme? That’s why Academic Research got a -10 from me instead of -2.

I do realised I should not be this harsh on the students. After all, they are students. If my experience is any guide, they are more likely to be young and inexperience. In all likelihood, they haven’t considered my point here. If they had, they probably realized that they just made their potential academic career harder for themselves. After all, if your studies required you to go overseas to research your subject matters, ain’t you closing the doors to yourself by getting involved in this mess?

It is a bold claim  that Google is going to escape a fine from EC antitrust probe on its search engine/advertiser notice. If true, not having to fork out a single cent itself is and will be a big win for Google.

It is said that Google is willing to change its practice to alleviate EC’s concerns. Depends on how much Google has to modify, that might turn out another win for Google if the changes is relatively minor. I had been anticipating some changes since the probes began. Google is a company stuff by human, and human do make mistake. Not that I believe Google’s “Do no evil” slogan, but I do not think anything that Google did so far is deliberately designed to disadvantage its competitors unfairly.

I personally cannot see any evidence that  the complain that Google favours its own result has any merit. So far, none if its competitors who initiated the complains come out with any evidence to back its allegations. I might also had swallowed Google’s PR where it says it is “open” with its data and extrapolate it to means it also offers its advertisers more information than other service. Nonetheless, I still believe it is right for the EC to scrutinize Google’s practice  given its size and influence. The EC, compared to the US, had demonstrated that it is willing to explore preventing monopolistic abuse instead of cure it. I do believe this way of working has merit and is worth exploring.

I do believe once the settlement is made public, we will see that Google simply has to do minor adjustment to its practices. That is something that will disappoints those competitors behind this antitrust effort. If any, recent efforts to give Google more legal problems suggests the current antitrust probe has disappointed them. Those efforts basically recycled the same arguments in a different forum. If the probe had been going their way, why not let the EC concludes its prob first before firing the legal salvos as that would make it more likely to win the lawsuits.

Don’t just talk, do it!

TheRegister reports that News Corp threaten to take Fox Channel into subscription service if the courts refuses to shut down Aereo. I say do it mate!

Why? The decision on whether to make Fox a subscription service depends on how much News Corp can milk it for profit. Even if Aereo is ruled illegal Fox might still go the way Sky Sport News channel do over here in UK, i.e., becoming a subscription service simply because News Corp can wants to milk its viewers. I pretty much doubt whether Aereo is legal or not weight that much in News Corp calculations.

Finally, as thing stands  today, Aereo is NOT a pirate. News Corps President may yet succeed in overturning the court’s decision in appeal, but right now what Aereo is offering is legit because a court says it.

Ramification of Kirtsaeng v. John Wiley & Sons, Inc. is going to be huge

Via Groklaw, I am happy for Mr Kirtsaeng (and in  general, American readers) that copyright holder cannot stop you from importing and selling textbook by simply printing a “Not for sale in United States” on the text book sold outside United States. However, I am not sure it is good news for access to text books for developing countries.

When I was an undergraduate, one of the most important text book is The Art of Electronic, and the price for the book in UK, even after taking into account it is a hardback book,  is high. (This is still very true today even with  Amazon.co.uk discount). However, since I am from South East Asia, I found out, too late for my particular case, that I can get the book from a book store there during one of my holiday for about a quarter of the price in UK. Yes, it is paperback and the paper quality is really poor, but even assuming I have to buy multiple books to compensate for the enhanced wear and tear poor quality, it will take me decades to wear out two copies and it still represents a saving of at least half the UK cover price.

It does have the standard notice on it that says that in return for the publisher selling you the book at a cheaper price, the book is not to be taken into developed countries. I did wonder whether it is illegal to bring it into UK if I bought it. Of course, it was pre-GrokLaw days, I am not aware that there could be an equivalent of the first sales doctrine in UK, and also wrongly thought that UK Custom will  seize the book from me

In the end, the real deterrence for me not to take the book into UK was that I do not want to become one of those people whose action caused the publisher to withdraw schemes that sell books cheaper in developing countries .  My parents can afford to send me overseas to study. I should not forget that I have friends who are academically way better than me but have to stay behind because their parents cannot afford to send them overseas. The least I can do is not to upset the arrangement which give them the opportunity to access text books.

With this Supreme Court decision, publishers will now be more hesitant to sell books at a discount in developing countries. I am worry that will disadvantage students in developing countries. Some may argue with today’s technology a student have free access to resources online, but let’s not forget in a lot of places people have no or very limited access to  the internet.

One can be sure that if publisher do not sell books at a discount, it will simply encourage piracy, in the form of cheap illegal photocopies of those textbooks. People will justify this by saying they have no choice as they cannot afford the high price, and since they don’t care about us, why should we  care if we pirate their wares.

In the end, everyone lose.

I am not taking the side of the publishers. In fact, if you examine those cheaper books carefully, you will find that they are not cheaper from the goodness of a publisher’s heart, but  because they are subsidized by rich world governments. Thus, one way around this is for rich world countries to increase the subsidy they pay. Nonetheless, it will means the text books reach less people than it would had.

Thus, I am not sure this is a good decision for access to text book.

All I can say is, there will be big ramifications, especially for developing countries.

The Boys who Cry Wolf

Happy New Year everyone! Hope you have a good new year break. We know at least Google did!

FTC more or less cleared Google of any antitrust violation. A small tweak here and there. Even the loops Google has to jump through to get injunctions for its FRAND Standard Essential Patents would probably only have the effect of delaying Google getting one by less than a year. With the recent carefully argued cases where  judges rightly deny  injunctions for FRAND cases just because it is available  and instead requires the requester to justify it, that is not a big loss.

The reason for picking the BusinessWeek article over others in the previous paragraph is to highlight what Prof  Eric Goldman of Santa Clara University was quoted to had said: “The FTC [...] had to find evidence of bad behavior and a reason why we could care [...] [but t]hey couldn’t.”. Before the announcement of the settlement, while I am reasonably sure Google “[did] no evil” to its competitors, there is still a strong possibility that Google’s backend process, such as business practices that disadvantages its competitors, might be an antitrust concern. After all, the one thing I learned from the Microsoft IE antitrust case is the root of any antitrust concerns is likely to come from the backend business practices, with the visible effect of that practices which we see being only a symptom, not the cause.

The “reason” Prof  Eric Goldman is talking about refers to harm suffers by us, the public, not disadvantages suffers by the competition. Google’s competitors should take that to heart. They  do not have to take my word for it. Take Stone’s (author of the BusinessWeek article) instead: “The editorial decisions made by search engines naturally create winners (content that ranks highly) and losers (content that does not). As long as arbiters like Google manage the experience in the best interests of its users, they appear to be on safe legal ground, at least in the U.S.” Still need more, here is another quote from FTC from the article: ‘While changes to Google’s search results “may have had the effect of harming individual competitors,” the FTC wrote in its statement, they “could be plausibly justified as innovations that improved Google’s product and the experience of its users.”’

One of Google’s competitor that should take note is Microsoft. It is complaining about Google not giving them access to YouTube Meta data. Fact is Google need not do it. Dave Heiner, Vice President & Deputy General Counsel, Microsoft, certainly proved the harm to Microsoft, but it is still a very long way from proving that it is harming us, the public. Taking his argument to conclusion Apple should open its iTune to other music services/devices because it is dominant in the music market.

Having said all this, I do not think FTC should just pack up its bag and go elsewhere. For companies as big as Google, Amazon, Microsoft and Apple, I think there should be a permanent FTC investigation open to monitor their behaviour. This time Google is cleared, but who is to say it will remain so in the next 10 years? I prefer prevention to cure.

Google can now concentrate on its EC antitrust investigation. That is always assumed to be, and shaping up to be more difficult than the FTC. Let’s wait and have a look at what EC finds when it is ready.

Reserved space for operating system on Microsoft Surface is indeed to high, but a lawsuit?

I cannot say it only happens in America. A lawyer is suing Microsoft over false advertising because for its 32 GB model actually only give you 16 GB space for your files. Here in the UK I can see irate customer filing a complain with the Advertisement Standard Agency. I guess the equivalent of a complain with ASA is lawsuit in America.

Microsoft’s reported disk usage do lead me to think that at least for the 32GB model, one can make a case for false advertisement since the operating system itself eats up half of your available disk space. Microsoft argument that people do expect some space to be taken by operating system does not holds water here for two reasons. One, while we do expect some manufacturer to annoy us  by having some spaces  taken up by operating system (and crapwares), we do not expect the “core operating system”  to take up 11 GB, i.e., my estimate that the operating system is 6GB plus recovery tools (5GB), see later; And Two, it is false advertisement because joe customer might be attracted by the disk size which looks to be larger than the cheapest IPad model and assumed that he has more space than he actually gets with Surface, and Microsoft knows it.

However, if you look at the figure, the actual operating system takes only 8GB. That is not that bad compared with my iPad which says iOS takes up about 5 GB. I am guessing (since I don’t have a Surface to check), the core operating system takes 6GB, preview of Microsoft Office Apps is 1GB since Apple’s iWorks for iPad takes about the same amount of space, and all the crapwares, Games and Videos make up the remaining 1GB.

The killer, to me, is the Recovery Tools rated at 5GB. My God! Those are dead weight space hugger and should not be in the device. What one need is a skeleton program to load the actual recovery tools from a external source, e.g. a computer. Microsoft should trim them down to a more manageable 1GB or so.

Blessing in disguise for Samsung and Apple might be biting off more than it can chew

Two interesting news item overnight.

PCMag reports that Samsung had delayed a fab construction because its projected business relationship with Apple for chips turned sour as a result of lawsuits between the two. I say blessing in disguise. Imagine Samsung has on its hand a expensive fab but insufficient volume. I think it will be worse off. Also, on the long  run, depending on one customer is never a good idea.

The second thing is Apple is attempting to insert Android Jelly Bean into its next Apple vs Samsung suit as reported at Groklaw. Good luck to Apple if it succeed. It will not be taking on Samsung in that case, but Google as well. I can see Google applying to intervene to defend Jelly Bean. I think it has to to protect the Android ecosystem. I am sure Apple see that as well. May be it fancy its chances. May be Google had been helping Samsung all along in the background and therefore all Apple is risking is just Google stepping into the limelight. Only the players in this game know their cards.

Apple scored an own goal …

It is a gamble that did not pay off for Apple. Motorola probably sense something in the pretrial negotiation and managed to execute a legal maneuvere with the effect of forcing Apple to reveal its real intention in pursuing this litigation. Used to get its way in the business market, thinking that it arrogance it has there will translate to its litigations as well, Apple gambled  that it is worth tell the court that it will appeal its decision if the court set a FRAND rate of more than one dollar per device. That, if the court had not reacted, would had in effect allowed Apple to unilaterally set the ceiling for the FRAND rate. Court barked at it and started to smoke Apple, Motorola fanned the fire, and finally as reported by Groklaw and elsewhere, the court throws out the unfair (to Motorola) lawsuit, leaving Apple more than scorched by dismissing its claim with prejudice.

In effect, the  court had implied that the FRAND rate can be more than a dollar per device.

PJ correctly said that Apple was frantically trying to salvage its case by frantically and compared to what it tells the court in UK on how long it will take to put up a notice on its website, came out with a complex memo in record time. That rightly did not save its bacon. It was asking Motorola to agree to be bound by the same procedures to set a FRAND rate for Apple’s patent, and sensing that Motorola will go for the kill by saying it is not prepare to do so, pleaded to the judge to order Motorola to accept it. Obviously the judge was not persuaded, nor should she be.

I was slightly surprised by the with-prejudice dismissal. I was expecting without prejudice. But as some commentators pointed out, with prejudice is necessary to prevent Apple from filling the same lawsuit in another court in the hope for a more sympathetic judge.

If I am Motorola, I would now apply for cost.

So far, I think the judges in United States, on the whole, did well in FRAND cases. Yes, we have the Microsoft vs Motorola abnormally in Seattle, but by and far, they did  clarify this really well. Here is what I had learned: Offering something to Standard Setting Bodies on FRAND means you cannot get an injunction before the case has run its course, as you had admitted that monetary cure will be sufficient. You can and will be forced to license your patent on FRAND terms if you had pledged to do so. If both parties cannot agree, then the court can intervene to set the FRAND rate. However, you cannot use the court as a negotiation strategy. That rate the court sets can be a worldwide rate (at least if both parties are American companies). After the rate is set by the court, by implication, if the prospective licensee still refuse to pay, then an injunction to ban the sales of infringing articles will be back on the table. In short, it upheld common sense and standard business practice. Another thing that the judge had  confirmed is agreeing to license your patent on FRAND term will not degrade the value of your patent, as Apple and Microsoft are trying to do. What’s not to like about it?