The Smartphone Wars: Google Buys Motorola

This morning came the news that Google has agreed to buy Motorola Mobile for $12 billion. I was half-asleep when A&D regular Jay Maynard phoned me with a heads-up, but not surprised for a second; as I told him, I’ve been expecting this for weeks.

We’ll see a lot of silly talk about Google getting direct into the handset business while the dust settles, but make no mistake: this purchase is all about Motorola’s patent portfolio. This is Google telling Apple and Microsoft and Oracle “You want to play silly-buggers with junk patents? Bring it on; we’ll countersue you into oblivion.”

Yes, $12 billion is a lot to pay for that privilege. But, unlike the $4.5 billion an Apple/Microsoft-led consortium payed for the Nortel patents not too long ago, that $12 billion buys a lot of other tangible assets that Google can sell off. It wouldn’t surprise me if Google’s expenditure on the deal actually nets out to less – and Motorola’s patents will be much heavier artillery than Nortel’s. Motorola, after all, was making smartphone precursors like the StarTac well before the Danger hiptop or the iPhone; it will have blocking patents.

I don’t think Google is going to get into the handset business in any serious way. It’s not a kind of business they know how to run, and why piss off all their partners in the Android army? Much more likely is that the hardware end of the company will be flogged to the Chinese or Germans and Google will absorb the software engineers. Likely Google’s partners have already been briefed in on this plan, which is why Google is publishing happy-face quotes about the deal from the CEOs of HTC, LG, and Sony Ericsson.

The biggest loser, of course, is Apple; it’s going to have to settle for an armed truce in the IP wars now. This is also a bad hit for Microsoft, which is going to have to fold up the extortion racket that’s been collecting more fees on HTC Android phones than the company makes on WP7. This deal actually drops a nuke on the whole tangle of smartphone-patent lawsuits; expect to see a lot of them softly and silently vanish away before the acquisition even closes.

And, of course, now that Google has shown it’s willing to fly cover for Android handset and tablet makers, likely there’ll be more of them signing on. This move will accelerate Android hardware down the price curve.

489 thoughts on “The Smartphone Wars: Google Buys Motorola

  1. When Google pays $12B for Motorola, it expects to make more money in return. A year ago, Google made around $1B on mobile revenue on a total of almost $9B.
    (http://money.cnn.com/2010/10/14/technology/google_earnings/index.htm)

    As a total layperson, I would not be very optimistic that parts of Motorola can be sold at a reasonable price in the current climate. But if I were Google (which would end in disaster), I would have made deals to sell these parts on already.

    In short, a breathtaking move by Google that ups the ante on everyone who demanded Google to “protect handset makers”.

  2. Just how far back are those blocking patents? Are they old enough that they’ll expire shortly?

    If they demonstrate prior art, that value never expires. It can be used to challenge the later patents themselves.

  3. Pingback: Google adquiere Motorola por 12.500 M$ « El chalé de Gaius Baltar

  4. I suspect Google will slowly strangle the hardware side through benign neglect and not really getting hardware rather than sell. They have been good at unlikely mergers in the past, but they’ve also bungled quite a few, and I can see management having some Apple envy here.

    But yeah, this is obviously about the patents. They’ve desperately needed a stockpile.

  5. first of all they only bought Motorola Mobility, not all of Motorola. This raises the question (at least to those of use that used to have root access to web servers hosting Symbol Content, developed apps on WinCE devices with Symbol barcode scanners and worked with former Symbol programmers): Does google own the Symbol barcode product line now?

  6. No surprise here. Doing nothing wasn’t really an option for Google if they wanted to keep Android viable. The next question is how to they deal with the hardware end of things. I agree that Google has no desire to be a builder of smartphones. But this acquisition has implications in the TV arena that Google may see as opportunity. Hmm. Which parts do they keep, and which parts do they divest, and to whom?

    Regarding the patent end of things, I speculate that the bloodshed is not over. Google will have to demonstrate its willingness to use these patents (and the IBM patents as well) offensively before Apple and Microsift back off. Also, it remains to be seen how Google will use the patents to help its partners. Just having them on the shelf won’t be enough. From Apple and Microsoft’s perspective, there is too much at stake to just give up quietly. I expect the lawsuits to continue.

    Interesting times ahead. Here’s a really wild speculation…

    (1) Before divesting the smartphone hardware segment, Googlola introduces a smartphone with a replaceable radio, sells the radio separately so the phone is a true multicarrier unit.
    (2) No US carrier touches it with a ten foot pole or allows it on their network.
    (3) Googlola files a Carterphone-based complaint with the FCC.
    (4) The carriers are reduced to dumb pipes selling capacity based on the actual cost of production.

    I can dream…

  7. I think Motorola Mobility just got the cellphone business when Motorola Inc. split in two. Motorola Solutions got the two-way business, and I suspect Symbol went that way; that would make more sense.

  8. @The Monster:

    If they demonstrate prior art, that value never expires. It can be used to challenge the later patents themselves.

    Sure, except in theory, everybody benefits from that and no purchase is required.

    @Kevin Snyder:

    Regarding the patent end of things, I speculate that the bloodshed is not over. Google will have to demonstrate its willingness to use these patents (and the IBM patents as well) offensively before Apple and Microsift back off.

    Not really. All they have to do is provide some indemnity to Android handset vendors against Microsoft and Apple.

  9. @Patrick

    My ignorance of patent law is substantial. But by providing indemnity, doesn’t Google basically agree to accept liability incurred by the indemnified party as a result of unfavorable judgements? Google could have done this without the patent portfolio, but it would have been a financial drain. For it not to be a financial drain, doesn’t Google have to demonstrate that it is capable of getting judgements against the third party that sued the indemnified party that are at least equal to the costs incurred under the indemnification? (I don’t know, which is why it’s phrased as a question)

  10. FWIW, I completely agree with you that this is all about the patents. That was my immediate reaction when I saw the news. Motorola is based pretty near where I live and I know quite a few people who are or have worked there. If I worked there I’d be pretty worried. All the non IP is collateral, and includes a lot of jobs. I doubt they will be absorbed as you suggest. Google is famously picky about the people they hire, and I doubt they will pollute their pool with the rank of file from Moto.

    BTW, this article claims it was 12.5 billion, but what is 2.5 billion between friends?

    Nonetheless, I did want to remind your readers of one vital fact: Google just spent 10 billion dollars to protect themselves from completely unjustified sniping by big patent trolls like Apple and Microsoft. Not in theory but in practice, as was demonstrated by Apple’s actions against Samsung in Europe last week. And to do this Apple also spent 4.5 billion dollars.

    What a spectacular waste of the resources of some of the most productive parts of our economy! If these guys had spent it on new and useful innovation, we would all be so much better off. All you patent advocates take note. Even if you claim that the protection of patents stimulates innovation, these facts demonstrate beyond dispute that the protection of patents is also a major wet blanket to innovation.

    Isn’t it time we got rid of them entirely and let creative people get back to making our lives better?

  11. @Kevin Snyder:

    > But by providing indemnity, doesn’t Google basically agree to accept liability incurred by the indemnified party as a result of unfavorable judgements?

    Full indemnity, certainly. That’s why I wrote “some indemnity.” An indemnification contract can be (and usually is — take a look at your homeowner’s or auto policy) quite restrictive in what it covers.

    Google may actually want to provide relatively complete indemnification, but if they consider that too much of a risk, they can provide indemnity against certain claims of Apple and Microsoft, for example. They probably don’t actually have to provide too much indemnification to acquire a seat at the bargaining table.

    BTW, Microsoft already sued Motorola (as well as B&N), and Motorola countersued with some of its patents. I assume that google is intimately acquainted with this lawsuit and has come to the conclusion that any settlement could be extended to all phones running Android if they handle it correctly — which is probably one reason this offer came before the lawsuit settled.

    I also assume that one of the reason that the other Android vendors are ecstatic about this is that it is apparent that Mot Mobility, losing phone market share, was about to go thermonuclear with its patent portfolio and turn into one of those zombie corporate shell trolls. From the perspective of Samsung, HTC, et al., Google’s acquisition of Mot turns a net liability (more hostile patents) into an asset (more friendly patents for bargaining chips).

    The main fly I can see in the ointment is that negotiations need to conclude favorably while Microsoft is still under the misapprehension that they are eventually going to do well in the market, otherwise, Microsoft will be a patent troll in this market segment — several potentially blocking patents, but no business that can be hurt by reciprocation.

    What will be really interesting to see is if there is some hidden gem in Mot’s huge stack of patents that Google found that they think they can smack Oracle upside the head with. That alone could provide immense justification for any price premium that google is paying, because it sends the clear message “fuck with us, and we will research all your businesses and figure out who has patents you are infringing and buy them and retaliate. Do not question our ability to search for relevant information or our ability to pay what is necessary.”

  12. otherwise, Microsoft will be a patent troll in this market segment — several potentially blocking patents, but no business that can be hurt by reciprocation.

    The problem with that scenario is that patent trolls depend on their victims being unable or unwilling to fight. That is about as far from describing Google here as can be said; Google has no choice but to fight, and buckets of cash to do it with. I doubt it’d actually go to trial, but Google can certainly apply sufficient leverage to get Microsoft to back off.

  13. > I doubt it’d actually go to trial, but Google can certainly apply sufficient leverage to get Microsoft to back off.

    Possibly. That strategy is not working for Google against Oracle yet, and since Microsoft has actually been in the mobile phone handset business, there is a chance they actually have patents in this area of a higher calibre than the ones that Oracle is slinging around. You have to remember that all these companies are used to court-ordered settlements and injunctions by this point — patents as offensive weapons are a way of life, and it might take a lot of retraining for that to change.

  14. Patrick Maupin Says: “What will be really interesting to see is if there is some hidden gem in Mot’s huge stack of patents that Google found that they think they can smack Oracle upside the head with.”

    Interesting thought. Given that a great many of the phones Moto sold had some form of Java running in them there could very well be something there.

  15. > Interesting thought. Given that a great many of the phones Moto sold had some form of Java running in them there could very well be something there.

    Nah, that won’t hurt Oracle because they’re not really selling Java. Gotta be a database or networking patent.

  16. Pingback: Google buys Motorola Mobile: it’s all about the patents « Quotulatiousness

  17. @Patrick Maupin

    Remember, Google bought a stack of patents from IBM. I suspect some of those are pointed at Oracle. Beyond that, the re-examination side of the Oracle case seems to be going well (according to Groklaw), so they may already have that covered.

  18. Still seems like it would have been cheaper to join in on the Nortel group. Even if Google sells off all of the non IP assets to get the investment below 4.5 B, how much are they going to spend in legal battles over this as opposed to simply being co owner in the patents currently being used against them?

  19. If it’s just about the patents, why did they pay so much? Apparently they paid a 73% premium over market price, compared to the 30-odd that’s usual.

  20. >If it’s just about the patents, why did they pay so much?

    They probably think they can sell off enough assets to offset the cost. It’s a separate question whether this belief is true.

    It’s also possible that they paid a premium in order to solve the problem fast, because some of the handset makers were spooking.

  21. >Still seems like it would have been cheaper to join in on the Nortel group.

    This assumes the Nortel group would let them join. I doubt this, since it seems to have been formed with the specific intention of forcing Android off the market.

  22. @ tmoney : … it would have been cheaper to join in on the Nortel group.

    Maybe cheaper, but not useful. Google needs defensive patents for defending against Apple and Microsoft, among others. I doubt Google would be able to use them against its joint patent owners.

  23. @Ravi:

    Remember, Google bought a stack of patents from IBM. I suspect some of those are pointed at Oracle. Beyond that, the re-examination side of the Oracle case seems to be going well (according to Groklaw), so they may already have that covered.

    The patent game seems to be one partly of probabilities. At this stage of the game against Oracle, enhancing probabilities might still be on their mind. I have no idea — just threw it out there as a thought. Obviously google has lots of balls in the air, and it’s hard for an outsider to know all the strategic and tactical reasons for an acquisition.

  24. If they joined the Nortel group, it would have only protected them from the Nortel patents, not the rest.

    Even better. Apple and M$ have to play whack-a-mole with HTC, Samsung, Sanyo, LG… Google can just block the iPhone, iPad, and iPod, and the few Win7 phones on above the ground clutter. Google doesn’t produce any phones or tablets.

    Watch Apple drop to Newton territory when the ITC says they can’t sell iOS devices.

    Cross licensing? Google’s stack is now bigger than the rest.

    Then there’s the VP8 codec.

    Meanwhile this weekend the price of at least the Toshiba Thrive dropped over 15% making it more than a competitor for the iPad.

    There would be a concern that the Googleola phones would compete with their partners, but that might not be as bad. I don’t know of anyone who likes Blur, but then I’m a geek. If Googola makes pure google experience devices and sets them at the right price it will simply be another competitor.

  25. Was reminded by a couple of articles that “Motorola Mobility” is a bit of a misnomer. The company also includes Motorola’s set top box business:

    http://www.pcmag.com/article2/0,2817,2391089,00.asp

    Hmmm, maybe google does want to get in the hardware business. There are all sorts of intriguing possibilities there…

  26. >Hmmm, maybe google does want to get in the hardware business. There are all sorts of intriguing possibilities there…

    Agreed about the possibilities. But if I were Google, I’d spin out the set-top-box business. Keep a controlling stake, yes, so it’d stay strategically aligned with the parent company’s content and advertising business, but it would be a bad use of Google’s management bandwidth to actually run a hardware company. The most interesting possibilities, like porting Android to set-top boxes, wouldn’t actually require the set-top people and the Android people to be reporting to the same managers.

  27. >Watch Apple drop to Newton territory when the ITC says they can’t sell iOS devices.

    This is a real possibility now. And Apple would have nobody but itself to blame if it happened; the company took the game to this level when it got a judge to ban Samsung tablets in Germany. But I think it’s more likely that Google will just say “Back the fuck off the patent lawsuits now or we’ll destroy your business” and then just outcompete them into the ground.

  28. @esr:

    if I were Google, I’d spin out the set-top-box business… it would be a bad use of Google’s management bandwidth to actually run a hardware company.

    I agree that it would be a possibly foolish, apparently big change of heart for google to think seriously about competing in hardware.

    But what if google decided that what they really need is the equivalent of Xerox PARC, AT&T Bell Labs, etc.

    In other words, even if google doesn’t want to be in the hardware business, maybe they want to have a toe in the hardware development business. This could help provide continued patent protection for Android, the VP8 codec, etc., while possibly adding Android-style synergies to other markets. Assuming some of the good principals are still at Mot Mobility, google might have a nice incubator for the fusion of high bandwidth internet, cell phone femtocells, etc.

  29. Everything I’m seeing suggests that MotMobi will continue to be operated as a separate business.

    They shoulda bought Sun when they had the chance…

  30. Regardless of how it works out for Google, kudos to Jha for a hand very well played. Threatening to sue other Android makers with the MMI patent portfolio if the deal went south was probably worth at least a few hundred million to MMI stock holders.

    @esr If this is such a game changer that dooms Apple as you think, Apple can just offer $13B in cash. MMI stockholders won’t mind that bidding war in the least.

    Dollarwise the patents wouldn’t even be that bad in comparison to the Nortel deal except that Apple would have to pony up the whole amount. Since Apple would spin off the unwanted MMI handset business anyway it would probably even pass regulatory muster.

    Either way, hopefully Motoblur dies as a result.

  31. @Nigel:

    > If this is such a game changer that dooms Apple as you think, Apple can just offer $13B in cash.

    Even before acquiring a stake in the Nortel patents, Apple would have an extremely hard time getting the regulators to accept this. If Icahn and the board agree it’s a good deal for Mot shareholders, I have to believe it’s a good deal for Mot shareholders.

  32. >Even before acquiring a stake in the Nortel patents, Apple would have an extremely hard time getting the regulators to accept this.

    Apple buying up the manufacturer of the single most popular Android phone ever? For “extremely hard” read “impossible”.

  33. I think Google WILL tell Apple to back the * off now, but that “the Steve” is stubborn and/or arrogant enough not to do so. I need to go make some popcorn…

  34. I’m equally sure that Ichan and board would agree that a $13B offer from Apple would be a good deal for Mot shareholders…or $13B Microsoft.

    They have $52B in cash and Moto is at least a US corp vs Nokia. That would give them two solid handset makers for WP7. Given the negligible market share of WP7 there wouldn’t be much regulatory issues there. That and they probably would like Moto’s set top business unit all by itself.

    If anything, I’d make such an offer just to see how high Google would counter and let the regulatory chips fall where they will. Jobs won’t but Ballmer is grasping at straws and as huge a warchest.

  35. And inexplicably, RIM’s stock is up 10% today on this news. I guess RIM shareholders are hoping they’re next? Doesn’t seem likely to me…I don’t think RIM has any patents that would be worth anything to anybody. Or maybe they think taking MOT out of the game will somehow slow the bleeding in RIM’s market share? Weird.

  36. >If anything, I’d make such an offer just to see how high Google would counter and let the regulatory chips fall where they will. Jobs won’t but Ballmer is grasping at straws and as huge a warchest.

    I agree, a Microsoft counteroffer would be far more plausible than an Apple counteroffer – they probably could get that past the regulators. Let’s see if one actually materializes, shall we?

  37. Wow.

    For the Apple fanboys without a clue about the cellular phone business here is a big clue stick: Motorola’s patent portfolio in the area of cellphones is large enough to make Steve Jobs cry. No, forget that. Motorola’s patent portfolio is large enough to make Chuck Norris cry, nevermind sissy boy Jobs.

  38. @esr I thought that the Galaxy S claimed that crown (best selling android phone).

    @tz as I said in that other thread, Apple is already being sued my Motorola so the situation for Apple hasn’t changed much legally. Legal doomsday predictions not withstanding.

  39. >This assumes the Nortel group would let them join. I doubt this, since it seems to have been formed
    >with the specific intention of forcing Android off the market.

    Per Microsoft’s response to Google’s public whining, they approached Google and Google said no. Google in its responses has said nothing to refute this claim, which leads me to believe it is true.

    http://www.engadget.com/2011/08/04/google-addresses-microsofts-patent-attack-response-says-it-d/

    >Maybe cheaper, but not useful. Google needs defensive patents for defending against Apple and
    >Microsoft, among others. I doubt Google would be able to use them against its joint patent owners.

    Why would they want to use them against the joint owners? If the purpose is defense, if you and your opponent own the same IP aren’t you defended against attacks by virtue of being a patent owner? The only downside I can see to Google becoming a joint owner would be that they couldn’t use those patents offensively, which per Google is evil and anti competitive and therefore something they wouldn’t do anyway.

    >Apple buying up the manufacturer of the single most popular Android phone ever? For
    >“extremely hard” read “impossible”.

    Eh. These are the same regulators who have overseen a move from 8 regional bells and their smaller competitors to 2 massive conglomerates and a straggler (ATT, VZ, CenturyLink). They’re also the same regulators who have now allowed the competitive field for cell phones to be reduced to 4 soon to be 3 major carriers and a hand full of MVNOs (many of whom are owned by the major carriers anyway). Somehow I don’t have a lot of faith that if Apple wanted to by Mot Mobile the regulators would have stepped in to stop it.

  40. >And inexplicably, RIM’s stock is up 10% today on this news. I guess RIM shareholders are hoping they’re next?

    That is bizarre. Who can they possibly think the white knight is going to be? Not Google, not while it’s digesting Motorola. Not Apple, it thinks the UI on the entire Blackberry product line is toxic waste in 2011 (and it’s not far wrong). Not Microsoft, because even Ballmer probably isn’t crazy enough to actually buy a hardware business that has bled out half its market share in the last sixteen months.

  41. >@esr I thought that the Galaxy S claimed that crown (best selling android phone).

    New-unit share, maybe, but I’m pretty sure Droids still dominate the Android installed base. (For the record, I prefer HTC’s hardware myself.)

  42. Some provocative interpretation:

    “One thing is sure though: this is the end of Android as we know it. The fastest growing OS in the history of mankind. Open, meant to be the OS of the connected devices world. The backbone of the Internet of Things.

    All gone. It is a proprietary OS. The third leg of the cloud+device+OS stool owned by a device manufacturer. Nothing more.”

    http://www.fabcapo.com/2011/08/end-of-android-as-we-know-it.html

  43. MS already “bought” Nokia so getting a second large handset maker to run into the ground might be considered too much to pass the EU kartel police. Apple would be out of the question anyway for the same reason.

    They could bid for the patents only, say a rent-back deal. That too could get nasty in legal terms.

    Probably best to delay the deal with an empty counter offer.

  44. @esr: “For the record, I prefer HTC’s hardware myself”

    Even against Samsung hardware?

  45. @morgan it’s amusing that pro-Apple pundits are claiming victory for Apple while pro-Google pundits are claiming masterstroke of Apple doom for Google.

    In reality, it’s usually somewhere in the middle. X buying Y is often thought of as the masterstroke but mostly, not so much.

    This much is true though: If Google’s original Android plans did not include paying lots and lots for IP those plans got trashed in a big way.

  46. >Even against Samsung hardware?

    I prefer HTC’s style of doing things (mostly clean Android, unlocked bootloaders) to Motorola’s; also the HTC phones from the Nexus One onward have struck me as simple, elegant, and classy in their industrial design. I don’t have enough experience with Samsung smartphones to know if I might like them better than HTC’s. It’s possible.

  47. > That is bizarre. Who can they possibly think the white knight is going to be?

    Nokia’s stock is also up, not just RIM. At least some of the commentators seem to think that Google is bungling its relations to the other OEMs and making a big mistake that benefits their competitors. (Which is pretty silly since they couldn’t be much more obviously buying the patent portfolio.)

  48. >Some provocative interpretation:

    The main factual thing to set against this guy’s interpretation is that the CEOs of HTC, LG, and Sony Ericsson are all backing Google’s play with public statements. They wouldn’t be doing that if they thought Google was about to dry-gulch them.

    I suspect that they’ve already been briefed on which portions of Motorola’s carcass are going to be up for sale and are salivating at the prospect of snapping up various fabs, mobile development groups, and other such capital-intensive impedimenta.

  49. @tmoney:

    Why would they want to use them against the joint owners?

    This has been explained multiple times on this blog by multiple people including me. I don’t know if you weren’t paying attention, but it is getting tiresome, and if you gave it a minute’s thought you could figure it out for yourself.

    Microsoft is already asserting patents against Android, extracting royalties from HTC and attempting to extract royalties from Samsung, and has already sued B&N and Motorola.

    THis is with patents that are already wholly owned by Microsoft and which would not be jointly owned. So how the hell does it make any sense for Google to jointly own patents with Microsoft? Short answer: it doesn’t. If you have no weapons, blowing your entire weapons budget on weapons that can’t be used against the only entities who have proven they are out to kill you is indescribably stupid.

  50. In other words, even if google doesn’t want to be in the hardware business, maybe they want to have a toe in the hardware development business.

    This could be done by licensing what they develop under very liberal terms, at least to companies that make devices friendly to their business model (running Android or at least open platforms, not walled gardens). They may have already privately assured their hardware partners that their plans go along those lines. (“We don’t want to compete with you in the hardware business. We will produce proof-of-concept designs and let you guys run with them.”)

  51. Gadzooks, tmoney, you’re just saying stuff. It’s all laid out here:

    http://googleblog.blogspot.com/2011/08/when-patents-attack-android.html

    Please read it. And to make it easier for you, here’s the money quote:

    “It’s not surprising that Microsoft would want to divert attention by pushing a false “gotcha!” while failing to address the substance of the issues we raised. If you think about it, it’s obvious why we turned down Microsoft’s offer. Microsoft’s objective has been to keep from Google and Android device-makers any patents that might be used to defend against their attacks. A joint acquisition of the Novell patents that gave all parties a license would have eliminated any protection these patents could offer to Android against attacks from Microsoft and its bidding partners. Making sure that we would be unable to assert these patents to defend Android — and having us pay for the privilege — must have seemed like an ingenious strategy to them. We didn’t fall for it.”

    This would apply to Nortel’s and anybody else’s patent portfolio.

  52. > The main factual thing to set against this guy’s interpretation is that the CEOs of HTC, LG, and Sony Ericsson are all backing Google’s play with public statements.

    I agree, but the statements don’t look particularly convincing. It seems like a bunch of corporations putting out a quick “we’re peachy, nothing to see here” that could turn out to be meaningless tomorrow. I don’t think that’s the case and you’re probably right about Motorola having been already cut up in pieces to be sold off.

  53. @The Monster:

    > This could be done by licensing what they develop under very liberal terms, at least to companies that make devices friendly to their business model…

    Exactly what I was driving at. Do the fun stuff, do the hard interop, let someone else worry about retail and product returns.

    Another thing they could do is to provide a couple of levels of patent protection. First level — we won’t sue you if you don’t sue others using our technology. That’s free. Second level — if someone else sues you, we’ll help provide you with the patents you need to countersue. That’s $(some low number) per handset, possibly already negotiated with Samsung and HTC.

  54. @ Patrick,

    So instead, Google finds themselves in the position of still being sued, and now their opponents have even more patents with which to attack them. Sure, they saved 4.5 B that they presumably put into Motorola, but again, how much of that savings are they going to have to spend defending against new attacks based on the patents they passed up?

    @ DocDoc

    Yes, yes, I read that, and it reads to me like someone trying to avoid acknowledging they made a mistake. “Sure it looks like we screwed up, but really we’re just more clever than everyone else!” is usually a false claim. In reality, if we take at face value his assertion that the objective has been to keep patents from Google, then either way Microsoft wins, but in the path Google took, they lost more than they needed to. There were only 3 possible outcomes, MS & Co get more ammunition against Android, Google gets more ammunition against MS & Co, or neither one gains the upper hand, but a chunk of ammunition is removed from play. It seems to me the better outcome for Google would have been one of the latter two, but instead they got option 1, leaving them in the same position they were in before, while their opponents gained.

  55. i read somewhere that someone thought that Amazon might be the big winner here if hardware manufacturers have moto heartache. It’s an amusing scenario…an Android fork backed by Amazon’s app store, servers, online fulfillment and Bing search (in exchange for MSFT patent licenses).

    Not a likely one. I don’t believe that Amazon has the software mojo to make it work, but it seems like Baidu is making a go of it. Given that Google doesn’t seem to have much Chinese mojo they have a fair chance of success with a fork.

  56. @tmoney:

    So instead, Google finds themselves in the position of still being sued, and now their opponents have even more patents with which to attack them. Sure, they saved 4.5 B that they presumably put into Motorola, but again, how much of that savings are they going to have to spend defending against new attacks based on the patents they passed up?

    For the sake of argument, I’ll assume for a moment that this is rational, if you’ll assume for a moment that google is serious about “do no evil.” Now, part of doing no evil is not being party to using patents offensively. So if Microsoft approached google with this deal — “Hey, we’re going to keep beating you up, but if you go halvsies on this set of patents over here, we won’t use those to beat you up — instead we can use those to beat up others together while we’re using these to beat you up directly!” — how could it possibly satisfy Microsoft’s desire to make money on patents while simultaneously satisfying google’s desire to not use patents offensively?

    In any case, the Motorola deal was probably being negotiated back when the Nortel patent auction took place. A lot of people (apparently you included) are saying it was stupid of Google to pass up Nortel at $4.5 billion and then turn around and buy Mot, but that may have been the backup plan all along. Mot’s cellphone portfolio dwarfs Microsoft’s.

    Hell, it may have been the primary plan all along. It’s entirely plausible that Microsoft could have bought Mot, but after buying a chunk of Nortel’s patent portfolio, they are on much shakier regulatory ground if they try to do that. And certainly, if they try to do that, a lot of information on the Microsoft/Nokia de facto merger might come to light as well.

    Finally, when it comes to patents and royalties, juries can easily be confused. Just look at the Oracle/Google suit, where the judge ordered Oracle to pick their best three for litigation. At one level, yes, quantity can be imposing, but it’s not linear. And to the extent that quantity*quality is imposing, it may very well be that google is getting much better value for money with Mot than it possibly could have with Nortel.

  57. Apropos as to not much in this thread but why isn’t the “Armed and Dangerous” blue title at the top that looks like a link actually a link that takes me to the top of the site?

    Or is my browser broken in some way? I have a plugin that zaps analytic code that is sometimes overzealous.

  58. >It’s an amusing scenario…an Android fork backed by Amazon’s app store, servers, online fulfillment and Bing search (in exchange for MSFT patent licenses).

    Not going to happen. I’ve interacted with Jeff Bezos…not for long but that and his public presentation are enough to tell me something about the way he thinks. And I’m pretty sure he thinks of Google and Amazon as good guys together, natural allies against Microsoft and all the evil predator fuckheads of the world. Amazon will not fork Android on his watch, not when there’s a clear business win in co-branding the two and that’s what Bezos wants to do in his heart anyway.

  59. @tmoney:

    In reality, if we take at face value his assertion that the objective has been to keep patents from Google, then either way Microsoft wins, but in the path Google took, they lost more than they needed to. There were only 3 possible outcomes, MS & Co get more ammunition against Android, Google gets more ammunition against MS & Co, or neither one gains the upper hand, but a chunk of ammunition is removed from play. It seems to me the better outcome for Google would have been one of the latter two, but instead they got option 1, leaving them in the same position they were in before, while their opponents gained.

    Let me try to put this simply. “Ammunition” is certainly an apt analogy for most patents. Most patents are junk that will annoy, but not seriously damage, your opponent.

    But good patents are like nukes. If Microsoft has one patent that is good enough to get the ITC to issue an injunction against HTC or Samsung, then they don’t need more than one. And to counteract that sort of threat, google only needs one as well. But it can’t be jointly owned. That would, in fact, defeat the entire purpose of the exercise, despite your and others’ rationalizations to the contrary.

  60. No wonder there is still no open source Honey Comb Os till this day…
    It’s been more than six month…reaching 1 year status?

    Will we see it before Moto Mob final acquisition?
    Or there is a reason why Google has been very slow to release the code?
    when was the last major release of an opensource android OS?
    Gingerbread 2010?
    It is nearly Q4 2011!!

    hmmm….. ESR!!!!

    Tell your friends,
    Just remember to bring your fork….

    and don’t evil too!

    If not Opensource android will stop with 2.3 Gingerbread…

  61. >No wonder there is still no open source Honey Comb Os till this day…

    A simple web search would inform you that Honeycomb 3.2 source was released in early July.

  62. > A simple web search would inform you that Honeycomb 3.2 source was released in early July.

    I think that’s just the GPLed portion. Google previously said they won’t release the Apache stuff until Ice Cream Sandwich.

  63. s/Most patents are junk that will annoy, but not seriously damage, your opponent./Most patents are junk that will annoy, but not seriously damage, a well-funded opponent./

  64. The commentary I’ve seen says that both RIM and Nokia’s stock prices are up on speculation that Microsoft will be forced to buy – not just ally with, out-and-out purchase – one or the other to protect whatever chance WP7 has. I can see that for Nokia; the only way I can see Microsoft buying RIM is if they try to buy Nokia and fail, an outcome I see as highly unlikely.

  65. Saw something over at groklaw. Apparently (makes sense in the “well, duh!” category) Motorola Mobility is a Mobile Java licensee. I have no idea exactly what that contract states, but I’m sure google knows :-)

  66. >Apparently (makes sense in the “well, duh!” category) Motorola Mobility is a Mobile Java licensee.

    Oh, that’s funny. Oracle lawsuit fall down go boom.

  67. # ooo Says:
    > Even against Samsung hardware?

    FWIW, I have a Galaxy S. It is ok, for sure the screen is spectacular, however, the fact is that the GPS just doesn’t work right and never has. If you try really hard you can make it a little better, but basically for the most part it will tell you which neighborhood you are in, if you are outside with really good visibility. Which of course means that it is useless for its primary function of navigation. Navigation is certainly one of hte primary benefits of a smart phone, and Samsung have given up trying to fix it. Which is why I will never buy another Samsung phone.

    Also, for those of you other Android 2.2 folks, did you guys notice that the phone suddenly slowed down when you went from 2.1 to 2.2? And have you noticed that after a few days it gets tired and needs a reboot, including, for example, the phone stopping working, and operations just hanging for five or ten seconds before catching up?

  68. >The commentary I’ve seen says that both RIM and Nokia’s stock prices are up on speculation that Microsoft will be forced to buy – not just ally with, out-and-out purchase – one or the other to protect whatever chance WP7 has.

    Oh please, oh please. It would be wonderful if Microsoft were that stupid. Yeah. It’d be like an Underpants Gnomes business plan: 1. Spend billions to acquire either of two demoralized wrecks with moribund product lines. 2… ??? 3. PROFIT!!!

  69. On my Samsung Infuse 4G the GPS seems to work pretty well, if one allows for the built-in limitations of GPS (outdoors only mostly). It came with 2.2 so I never did an upgrade but I haven’t rebooted it since buying it 3 months ago. It is very smooth and responsive.

  70. @esr

    “The main factual thing to set against this guy’s interpretation is that the CEOs of HTC, LG, and Sony Ericsson are all backing Google’s play with public statements. They wouldn’t be doing that if they thought Google was about to dry-gulch them.

    I suspect that they’ve already been briefed on which portions of Motorola’s carcass are going to be up for sale and are salivating at the prospect of snapping up various fabs, mobile development groups, and other such capital-intensive impedimenta.”

    I agree that it doesn’t make much sense. Give Google’s track record it doesn’t make any sense. But…

    If google does decide to start making their own phones and then close down Android, what would they gain?

    We are starting to see a lot of concentration. Speculation is mounting that Microsoft will buy Nokia, or RIM.

    Then we will have 3 players controling every path: hardware, platform and content. This would be the death knell of Samsung, that’s now the 2nd player after Apple.

    And then we have the Android tablets (that are finally getting some quality), the release Android 4, Christmas season, this is going to be insane until mid 2012…

  71. either of two demoralized wrecks

    On that note, I’ll mention that I was just told by someone who’s taking the courses that RIM is ending its technician certification programs effective 26 August.

    That move can only be read one way: they’re starting to give in.

  72. >Also, for those of you other Android 2.2 folks, did you guys notice that the phone suddenly slowed down when you went from 2.1 to 2.2? And have you noticed that after a few days it gets tired and needs a reboot, including, for example, the phone stopping working, and operations just hanging for five or ten seconds before catching up?

    Not seeing these symptoms. The worst 2.x bug I’m seeing is that the native browser occasionally gets into a hung state requiring a reboot.

  73. Michael Hipp Says:
    > On my Samsung Infuse 4G the GPS

    Yeah, that is the newer model. I’m sure they fixed it, but somehow neglected to offer me a free upgrade to compensate me for the fact that a basic system function doesn’t work.

  74. @esr: Oh, that’s funny. Oracle lawsuit fall down go boom.

    @The Monster: Is it a transferrable license?

    I have no idea whether the license is transferable (they usually are) or even whether it would cover use of Android, which it might not. A lot of Java licenses are apparently very particular about what you can do with Java (compatibility, libraries, etc.), but Motorola might have had some pretty sharp negotiators, and Sun might have needed some cash, so who knows? (Well, as I mentioned, google probably does :-)

    So this is one element that may or may not have added to the purchase price.

  75. It looks to me like Google has badly underestimated the cost of merging companies with drastically different cultures. Think Compaq/DEC, HP/Tandem, IBM/Rolm, SGI/Cray, etc, etc.

  76. @ooo:

    If google does decide to start making their own phones and then close down Android, what would they gain?

    We are starting to see a lot of concentration. Speculation is mounting that Microsoft will buy Nokia, or RIM.

    Then we will have 3 players controling every path: hardware, platform and content. This would be the death knell of Samsung, that’s now the 2nd player after Apple.

    Don’t be silly. Samsung still has and can distribute current Android. Samsung has its own bada that is actually selling pretty well, thank you very much, and even sells a bit of Microsoft phone. Samsung has all the components that google might want/need to build a phone. Samsung has the manufacturing power, the worldwide distribution network and the customer support people in place to cope. Samsung has 17% of the global smartphone market, a pretty good chunk of the global handset business, and lots of other businesses, but doesn’t really need its US smartphone business, where it is only 8%. Mot is kind of the other way around — big in the US, but not so much outside the US.

    So tell me how, exactly, google is going to damage Samsung? More to the point, why? Why would they throw away all their unevil karma just to participate in a low margin hardware business?

  77. >Is it a transferrable license?

    Not sure that’s the right question. The law doesn’t always treat inheritance by a successor-in-interest as a transfer.

  78. Some Guy Says:
    > It looks to me like Google has badly underestimated the cost of merging companies

    How can you possibly know that? you know absolutely nothing about either what they know, or what they plan to do.

    It seems to me that the people at Google are remarkably smart, and they have completed many other company purchases. If I were them, I would solve the problem of merging by simply not merging. Undoubtedly their primary motivation is to get the IP. There are a lot of things they can do with what is left, including cherry picking, garage sale-ing, spin off as a separate company, throwing it away, and a lot of other things. I will bet you they would have bought the IP for 10 billion even if they didn’t get anything else.

    I guarantee you that Motorola here in Chicago will not become “Googleplex East.”

  79. > Google previously said they won’t release the Apache stuff until Ice Cream Sandwich.

    Right. Reading between the lines, Honeycomb was rushed to market to try to beat the iPad 2, and the code isn’t suitable for public consumption. I don’t expect them to repeat that mistake with ICS.

  80. > Not sure that’s the right question. The law doesn’t always treat inheritance by a successor-in-interest as a transfer.

    I assumed that’s what the question was about. A contract could be written to be void in case of a sale or other change of control, but Motorola probably wouldn’t sign such a contract, which is why I said that such licenses are usually transferable.

  81. @esr:

    Oh please, oh please. It would be wonderful if Microsoft were that stupid. Yeah. It’d be like an Underpants Gnomes business plan: 1. Spend billions to acquire either of two demoralized wrecks with moribund product lines. 2… ??? 3. PROFIT!!!

    Sadly, many of Microsoft’s recent business plans look exactly like this. 1) Re-skin Windows Mobile 6 to look moderately like Android/iPhone and call it Windows Phone 7 2) ???? 3. PROFIT!!! They are running out of options. They know they have to gain serious ground in the mobile and tablet markets or they’re toast. What they’ve lacked is a comprehensive game plan and strategy that their investors believe will actually succeed. And if we compare their stock price to their closest competitors, we can see that MSFT’s investors clearly lack confidence in the company’s direction in the last five years. I wouldn’t be surprised by anything Microsoft does at this point, and that would even include pulling a SCO.

    There are a lot of things they can do with what is left, including cherry picking, garage sale-ing, spin off as a separate company, throwing it away, and a lot of other things.

    I think one of two scenarios is the most likely: sell off the manufacturing and dsitribution operations to a company would love to expand their presence in the U.S. or hold the biggest cellphone company garage sales ever. I think it’s pretty clear that Google doesn’t want to get into the hardware business, they could’ve picked up someone like Huawei for a cool $2 billion, rather than go for the pricier Moto.

  82. We are starting to see a lot of concentration. Speculation is mounting that Microsoft will buy Nokia, or RIM.
    Then we will have 3 players controling every path: hardware, platform and content. This would be the death knell of Samsung, that’s now the 2nd player after Apple.

    Not so fast. I know ESR has already declared webOS dead, but I don’t think HP is going to cave that quickly. In my opinion, webOS offers a better user experience than either iOS or Android. Nokia and RIM are dead. WP7 was stillborn, being based on the older CE 6.5 kernel.

    MS might have another chance with Windows 8, but how far along is that, really?

  83. @Morgan:

    > they could’ve picked up someone like Huawei for a cool $2 billion, rather than go for the pricier Moto.

    Are you thinking of some other company? Or did they spin off their cell phone operation? As far as I know, Huawei makes $4 billion profit in a year, and would, essentially, be impossible to buy, as they are completely employee owned.

  84. Hey ESR

    This might sound like a troll comment but it’s sincere: In light of your predictions of Nokia’s and Blackberry’s demise, have you had your broker take action on these? Money – mouth – etc etc. If I was so sure about something I would surely put money on it.

  85. >Not so fast. I know ESR has already declared webOS dead, but I don’t think HP is going to cave that quickly.

    FWIW, comScore stopped tracking WebOS when their market share hit 2.4% going down. They’ve already caved.

  86. @esr

    I’m not one to complain, but I wonder if I’m the only one finding it a little bit annoying having comments on your blog posts split between here and Google Plus?

    What are your thoughts on this?

  87. My guess;

    1) Google will spin off most of the manufacturing assets of Moto Mobile to assorted Android vendors. It will keep Moto R&D.

    2) Google will use the patents for nuclear deterrence.

    3) Google will hire away as much engineering talent (as opposed to programming talent) as it can from Apple or Samsung, and tell them to make Bell Labs for mobile phones. Like Intel, they just make reference designs aimed at specific price points. You may seem them acquire a “fabless” chip design firm with a good ARM license and technical know-how if they don’t like how Moto does ARM.

    4) Outside possibility: The technology needed to make a certain family of thin-film deposition solar cells is similar to the technology needed to make 2004-vintage CPUs. Google owns shares in two of the three leading companies in this field; both of them are struggling to get fab time…Google now owns fabs, and there may be a “virgin field” opportunity here. I think this is likelier than Eric’s set-top box scenario. I think it’s the only scenario where they keep the fabs.

    I can actually see Google offering ‘cross training’ opportunities for engineers at HTC, Samsung, Hauwei and others in the “Bell Labs” scenario; it’s in their best interest to make sure that engineers from their manufacturing partners get an oar in on the reference designs…and it would be a good PR move. (It will probably be mated to “Additional patent protection if you loan us some of your engineers for a year to work in a collaborative R&D environment.”)

    If Apple cannot crack the cable company monopoly on set-top boxes to a greater extent than it has, I’m not sure that there’s something we’re all overlooking. I strongly suspect it’s that the infrastructure really can’t handle full IP-based streaming of HDTV content to 200+ million subscribers at once.

  88. I wonder if I’m the only one finding it a little bit annoying having comments on your blog posts split between here and Google Plus?

    Sometimes I close comments on G+, but I don’t have a fixed policy about this yet. Still experimenting and your feedback is noted.

  89. >In light of your predictions of Nokia’s and Blackberry’s demise, have you had your broker take action on these?

    It’s come up before. Basically, I’m allergic to paperwork and don’t want to have to learn financial mechanics.

    Daniel Franke has noted on G+ that he’s made money by taking my forecasts seriously.

  90. @esr:

    I agree that Google owning the set-top business isn’t necessary from a technical perspective to achieve any of their Google TV goals, but… I wonder if it might be necessary from a business perspective. In particular, I wonder if Google needs to own the STB business (rather than spinning it out, even with a controlling interest) to demonstrate seriousness and “skin in the game” to the cable operators they need to get on board (or at least out of the way).

    Along those lines, if I were TiVo, I’d be very, very worried (despite the fact that I’m personally a very happy TiVo customer). A premium Google TV overlay on a Google (ex-Motorola) STB is going to work better than a TiVo overlay on the same STB (which is what, for example, Comcast’s DVR with TiVo service does today). I suspect TiVo’s best hope at this point is to talk Apple into an acquisition (though if they haven’t been able to do it to date…).

  91. @Contemplationist:

    “The market can stay irrational longer than you can stay solvent.”

    Even if esr is 100% right on the fundamentals of all his smartphone-related investment decisions. if he gets the timing wrong he’ll still lose his shirt. This is particularly true in the case of the most potentially lucrative opportunity: short-selling Apple.

  92. People keep talking about fabs. Does Motorola Mobility actually own any fabs? I thought all Motorola’s semiconductor business got spun out into Freescale and ON Semiconductor…

  93. @Ravi:

    I absolutely agree about the set top box business. I think there’s more upside than downside: (1) Motorola is doing pretty well with the STB business, so simply providing some direction to make sure synergies happen could work pretty well, and (2) there’s not really all that much overlap between STB manufacturers and smartphone manufacturers, with Huawei and ZTE being the major exceptions I can think of off the top of my head.

  94. Well, there’s been several posts asking what Moto could have in it’s arsenal that Google could want, let me hazard a guess: two-way paging and it’s follow-ons. That is, at it’s core, the heart of SMS. Imagine, for just one instant, the the only smart phones in North America capable of SMS are Adroids. Game, set, match.

    And Jessica is correct I think. Schaumburg is not in danger. Having been there myself a few years ago (in December!!! Not good for this Texas boy :^), most of the Moto engineers are up to Google’s standards, but their corporate culture would be arsenic to Google. I’d take the patents, make some back-channel threats to Apple and MS, and unload the hardware business just as fast as I could.

    On the plus side, this also means that Google can hand some REALLY nice tech licenses to it’s hardware partners. Moto rarely shares that stuff without really strict licenses.

    And there was some question about Symbol in all this: Symbol is part of Moto Solutions, as is the broadband stuff (the old Orthagon and Canopy lines). Moto has been situating themselves to dominate the wireless IP transit space for about 5 years. I think they may have considered Mobility a distraction (but a distraction that’s worth money).

  95. >Financial Times’ Alphaville blog’s roundup of immediate analyst reaction

    Looks like most of them are paralleling the analysis in my OP and by our commenters pretty closely. I’m not surprised; this is in no way a difficult situation to read. With a day to think about it, the biggest variable I see is the fate of the set-top-box business.

    My bet is still that they spin it out (keeping a majority stake) after carving the handset side into chunks and selling those off to existing handset vendors. But Ken Burnside argued persuasively by phone a few hours ago that the set-top-box business is so ugly to be in that Google might just fold that, too, and sell off those pieces.

  96. >Does Motorola Mobility actually own any fabs? I thought all Motorola’s semiconductor business got spun out into Freescale and ON Semiconductor…

    I’m not sure. I searched for “Motorola fabs” and found business-press hits implying that they were still building in-house capacity as recently as 2010, but I didn’t look in much depth.

  97. @esr:

    > But Ken Burnside argued persuasively by phone a few hours ago that the set-top-box business is so ugly to be in that Google might just fold that, too, and sell off those pieces.

    They could turn it into a gaming console business to further punish the bad boys.

  98. This interesting article claims that Microsoft was interested in buying Motorola, but Motorola thought it was a poor fit because Microsoft wasn’t interested in the hardware side. It states that one reason for Google’s interest was the threat of Microsoft buying them, and certainly implies that google is going to make hardware:

    http://gigaom.com/2011/08/15/guess-who-else-wanted-to-buy-motorola/

    Of course, the purported facts in the article aren’t necessarily inconsistent with google merely finding good homes for all the hardware businesses.

  99. @esr

    For the Apple fanboys without a clue about the cellular phone business here is a big clue stick: Motorola’s patent portfolio in the area of cellphones is large enough to make Steve Jobs cry. No, forget that. Motorola’s patent portfolio is large enough to make Chuck Norris cry, nevermind sissy boy Jobs.

    One thought.

    (When Patents Attack Android)

    “We’re encouraged that the Department of Justice forced the group I mentioned earlier to license the former Novell patents on fair terms”.

    If the Department of Justice agreed with Google’s argument that the patent purchase would too drastically alter the competitive mobile phone landscape, then why wouldn’t they agree the same here via a reciprocal complaint from Microsoft or Apple? A massive transfer of ~20,000 patents would (by all expectations here) drastically change the interaction dynamic in the mobile electronics industry even more than the Novell or Nortel auctions.

    Who’s to say the DoJ might ultimately make Google license Motorola’s patents as well?

  100. @twilightomni:

    1) That was a quote from Morgan, not esr.

    2) One reason that justice is interested is that Microsoft and Apple are already busy extracting rents from Android and/or trying to get it shut down.

    > Who’s to say the DoJ might ultimately make Google license Motorola’s patents as well?

    It’s certainly possible that the DoJ would intervene if necessary, but incredibly doubtful that they would force google to unilaterally offer the patents to all comers with no reciprocation required — that wouldn’t be “fair terms.”

  101. (and in case it isn’t clear) Google has never sued anybody over patent infringement and has disavowed any intentions to do so. I think we can believe them, at least until they are dying and a mere shell of their former selves. Corporations lashing out with patents are like supernovas — dying, but with a burst of incredibly destructive energy as a last gasp.

    This means that google will be happy to license patents for fair terms, which of course, include not suing it over other patents…

  102. >Of course, the purported facts in the article aren’t necessarily inconsistent with google merely finding good homes for all the hardware businesses.

    I really can’t take seriously anyone stupid enough to think Google would be stupid enough to run a handset business in competition with its hardware partners.

  103. @esr, some people still believe in the “monopoly” theory of capitalism — that businesses always concentrate into a single overarching entity which charges monopoly prices — unless government intervenes to rescue us from monopolies. Of course, they somehow miss the fact that THE GOVERNMENT IS A MONOPOLY.

    So they’re trying to predict that Google will buy Motorola and Sprint, and use its dark fiber to create its own Intarwebs, and control everything and anything so as to be able to charge monopoly prices. It all makes perfect sense, as long as you’re an idiot.

  104. You know, thinking about it, while I wasn’t overly impressed with Kindle as a platform Amazon has hired quite a bit of Android talent to do their app store.

    All they need really is to buy Skyhook…coupled with MS partnership (and license) and they have replicated most of the core Google services Google uses to keep handset makers in line. If they also agree to an Oracle Java ME license then they’ve removed large amount of risk for a handset maker in exchange for a license fee to use Kindleroid.

    Or screw MSFT…a merger with Yahoo? That pulls all of core services in house. Meh…if they could afford to outright buy Yahoo and gut it maybe. Merger seems iffy even if Amazon was the senior partner.

    Bezos is no idiot and has a competing market for which he’s locking up exclusives for…if he wanted a major handset maker to jump ship to Amazon it sure got a lot more likely than before. And he gets an opportunity to stick his finger in Steve’s eye for mucking around in the ebook market and moving that to an agency model if he succeeds in building a new competing platform…even if it is based on an Android fork.

  105. Pingback: Google, Motorola, Patent Shields and the Double-Edged Sword « deadpenguinsociety

  106. @twilightomi:

    Google is going to license Motorola’s patents just like the WebM patent grant: You have all the rights you want to use our patents with the code we release… as long as you don’t sue us (or any other user of our code) for patent infringement related to the code we release. There’s absolutely no way the DoJ would want more than that. I suspect one reason for the antitrust saber-rattling was to preemptively smooth the way for the Motorola acquisition.

    @esr:

    I think you’re right about Google and the handset business. I read “We will run Motorola as a separate business” as code for “At most, we’re going to fix it up and flip it”

  107. I really can’t take seriously anyone stupid enough to think Google would be stupid enough to run a handset business in competition with its hardware partners.

    So you don’t believe what Google has stated? Either they are going to run a handset business in competition with its hardware partners or they lied. Maybe they are hoping the FTC makes them sell the handset business.

    From the perspective of Motorola, especially if the management cared at all about their 19,000 employees, a buyout where they keep making phones as opposed to simply gutted for IP is preferable.

    At the very least, this Google “promise” allows Jha and the board to claim that they thought that Google wasn’t going to strip the IP and sell off the remains as not much more than a recognized brand to some asian handset maker and add to the US unemployment numbers by the thousands.

    Eh Google may be arrogant enough to compete against their hardware partners. Who are they going to run to? Microsoft? Bada? Nah. Amazon? Maybe. :)

  108. I really can’t take seriously anyone stupid enough to think Google would be stupid enough to run a handset business in competition with its hardware partners.

    So you don’t believe what Google has stated? Either they are going to run a handset business in competition with its hardware partners or they lied. Maybe they are hoping the FTC makes them sell the handset business.

    From the perspective of Motorola, especially if the management cared at all about their 19,000 employees, a buyout where they keep making phones as opposed to simply gutted for IP is preferable.

    At the very least, this Google “promise” allows Jha and the board to claim that they thought that Google wasn’t going to strip the IP and sell off the remains as not much more than a recognized brand to some asian handset maker and add to the US unemployment numbers by the thousands.

  109. This just occurred to me. Let’s look at the major Android phone manufacturers and their stances on bootloaders / device openness:

    HTC: Committed to unlockable bootloaders
    Samsung: Just hired cyanogen, ships easily hackable phones
    Sony Ericsson: Quietly shipping unlockable bootloaders (you do lose access to official updates, but there are some ways around that)
    LG: Generally ships unlocked bootloaders (though apparently loading a custom ROM has a high chance of bricking the phone if you don’t do every step right)

    And now we have…
    Motorola: Locked bootloaders won’t survive the acquisition

    The landscape looks pretty good to me.

  110. The Register thinks Google overpaid for a bunch of mostly dud patents – http://www.theregister.co.uk/2011/08/15/google_motorola_the_poker_chip_that_cant_be_redeemed/

    Of course they have this section:

    But Motorola’s IP war chest does not help Google here. It is poor where it needs to be rich. It is no help at all in the Oracle battle, which (alas) as many people have forgotten today, is largely about copyrights not patents.

    and the MMI Java license is something they seem not to have noticed so I’m not sure they are right but it’s an interesting vewpoint.

    Also I assume Motorola patented some of the tricks they have used with the Atrix. In the medium term this could be a great counterpunch since the idea of having a docking station for a handset is surely something that Apple at least has been looking at. Google could well decide to license this to its Android licensees but not Apple.

    Personally I think that Google in the longer term will probably do better lobbying the US Govt on patent reform that buying up patents, though in the short term owning a bunch of patents is probably a plus.

    BTW @Don, I seriously doubt 2-way paging patents (which must be just about to expire if they haven’t already) will do much good to Google. Certainly not in regards to SMS since GSM with SMS was standardized in about 1988

  111. @FrancisT

    The Register is full of shit. Certainly, “IP lawsuits are a crapshoot. Anything can happen.” But the copyright claims are nonsense, since it’s well-established you can’t use a copyright to prevent someone from making a compatible API. Any other code found to be in violation of copyright is easily cut out and replaced, with at most a cash payment to Oracle for past violations (and Oracle has already been told to bring its damages claims way down). That leaves Oracle’s patents, which are mostly falling apart on re-exam. If anything does survive, that’s what the from-IBM patents are for; they were very much on things Oracle cares about, like databases and hardware. Google doesn’t need anything new to deal with Oracle; after the IBM patent purchases, Oracle is well and truly handled.

    So of course Google didn’t buy anything to help it fight Oracle. It bought stuff to hang over Steve Jobs’s injunction-seeking head.

  112. So, to summarize:

    - Google gets a lot of patents to retaliate against anyone suing them under any pretext (they can sue Oracle for patent infringement).
    In the USA, the patents only need to be convincing, not valid. So thousands of patents means some will match almost any foe.

    - Google might now have a license for JavaME that guts Oracle’s suit.

    - Google gets access to (hardware) development teams

    - Some production facilities(?):

    Motorola handsets are generally produced in Asia, largely through subcontractors, but the company’s own production facilities are located in Brazil, China, Germany, South Korea, Singapore, and Malyasia. Motorola’s research and development facilities are located in Argentina, Australia, Brazil, Canada, China, Denmark, France, Germany, India, Ireland, Israel, Italy, Japan, Malaysia, Poland, Russia, Singapore, South Korea, Spain, the United Kingdom, and the United States.

    http://www.sourcewatch.org/index.php?title=Motorola

    The main question is how Google thinks it will be able to recoup the $12.5B they pay.
    - Income from mobile, was $1B in 2010, that can now be protected by the patents
    - Sell off Motorola parts, but the whole of Motorola was worth ~60% of what Google paid
    - Fab space for other projects. Can these pay off more than $1B?

    In short, Google seems to think that mobile earnings will increase ~$6B and more in discounted profits from this deal. That is a lot. It basically shows that they thing the future of personal computing is mobile. Surprise!

    This deal strengthens my conviction that MS will start to fall apart next year (2012).

  113. @Winter If moto had a java license to cover Android they probably would have told Oracle to pound sand and it’s unlikely that Oracle would have chosen them as a hostile witness in the first place.

    http://www.electronista.com/articles/11/08/05/oracle.may.get.motorola.to.testify.in.google.case/

    They were developing an Apache licensed J2ME MIDP3 that they were going to give Apache harmony…which if they had a license that actually allowed this (and the ability to pass the TCK) Google never would have had to build dalvik in the first place to bypass the J2ME license fee. They could have used the apache licensed Moto MIDP3 stack instead of the GPL encumbered Sun stack.

    Rumor has it that Sun and then Oracle would likely have charged a minimal fee anyway and I’ve read that Sun’s license was only $1 per handset anyway. But then Android has to meet the J2ME standard and actually BE open…which some argue is the real sticking point.

    “Indeed, sources inside Sun/Oracle have told me that negotiations with Google involved roughly $0.00 changing hands…

    So why didn’t Google just go along with Sun and take a fee-free license to use Java ME? Because doing so would have required Google to keep its Java implementation consistent with the standard instead of forking it with its Dalvik virtual machine. As much as Google might talk about standards, Google has much to gain by keeping Android applications on the Android platform, rather than allowing them to run on competing platforms like RIM.”

    http://gigaom.com/2010/10/05/android-swimming-with-the-patent-sharks/

    Not that Ellison is going to turn down a billion dollar payout if he can get one…but the analysis is sketchy as it doesn’t cover why the Playbook can run Android apps anyway.

    But if true, Google really just should negotiate a settlement with Oracle, bring the Android stack to be J2ME compliant and pay the $1 license fee.

    Of course, I’m thinking that Oracle wants its pound of flesh as well.

  114. @nigel
    “As much as Google might talk about standards, Google has much to gain by keeping Android applications on the Android platform, rather than allowing them to run on competing platforms like RIM.”

    That is not how Google expects to profit from Android. Eric has written extensively about the fact that for Google, Android is simply a moat to protect their castle.
    http://articles.economictimes.indiatimes.com/2011-04-25/news/29471395_1_moat-castles-market-share

    Google earn their money with on-line services. The only thing they need is for customers to get to their services without impediments. Their biggest threat is that someone is able to put up toll booths or detours around their services or even be able to lead their customers to other service providers.

    That was the immediate danger of the iPhone and also of WP[678]: Google being put behind all kinds of barriers. Android keeps the roads open. And they could not care less about others implementing apps that lead to their services. I can even see them promoting other platforms adopting their code.

  115. Nilay Patel asks (http://thisismynext.com/2011/08/15/google-motorola-patents-for/):

    All that said, it’s still curious why Google spent the full $12.5b on Motorola, instead of a smaller amount acquiring the rights to Moto’s patents — or the rights to litigate with those patents. (Or even something more like the Microsoft / Nokia deal, which involved patent cross-licensing and joint development by the two companies.)

    This gets to the heart of the mystery for me. I too cannot believe that Google would want to get into the handset business, so what is the explanation for why they would spend so much (almost all of their profits for the last two years!) on Moto when they seemingly could have got the patent access they wanted for so much less?

  116. @Patrick Maupin:

    I must be thinking of someone else then. One of the cheap Chinese manufacturers.

    @Nigel:

    …would have required Google to keep its Java implementation consistent with the standard instead of forking it with its Dalvik virtual machine. As much as Google might talk about standards, Google has much to gain by keeping Android applications on the Android platform, rather than allowing them to run on competing platforms like RIM.”

    Your argument makes no sense. If that were the case, they wouldn’t have open sourced Dalvik.

  117. @esr:

    I really can’t take seriously anyone stupid enough to think Google would be stupid enough to run a handset business in competition with its hardware partners.

    No, that doesn’t make sense. But the article is written as if some inside knowledge was imparted. If that is true, the trick is to figure out the mental filter applied by the article author, and apply the inverse filter to figure out what the author was told, and then reverse engineer that statement to figure out what is really going to happen.

    @Ravi:

    Google is going to license Motorola’s patents just like the WebM patent grant: You have all the rights you want to use our patents with the code we release… as long as you don’t sue us (or any other user of our code) for patent infringement related to the code we release.

    That was my first thought. My second thought is that they could put together a patent pool with Samsung and HTC that can be used for indemnity. They won’t sue, but if you license patents from the pool for $5/copy (which HTC is supposedly already paying and which is less than Samsung is supposedly being asked to pay), then Google will fight off other practicing entities on your behalf. If everything worked out right, the Mot purchase could be revenue neutral for Google in just two or three years.

    @FrancisT:

    In that article: “analysts I’ve spoken to” probably means certain paid shills. In any case, would those “analysts” have “analyzed” all 17K patents in the last day?

    @Nigel:

    If moto had a java license to cover Android they probably would have told Oracle to pound sand and it’s unlikely that Oracle would have chosen them as a hostile witness in the first place.

    I don’t understand what you’re saying here at all. (1) Mot did tell Oracle to pound sand — that’s why a court order was required; (2) if I wanted to depose a hostile witness, I might choose to depose the least hostile hostile witness I could find. Why was it Mot and not Samsung or HTC?

    @Tom:

    All that said, it’s still curious why Google spent the full $12.5b on Motorola, instead of a smaller amount acquiring the rights to Moto’s patents — or the rights to litigate with those patents.

    That statement alone is enough to tell me that Nilay Patel is spouting errant nonsense. You can’t assign the rights to litigate with a patent, and as RighHaven recently found to its dismay, that jurisprudence applies to copyrights as well.

    http://cyberlaw.stanford.edu/packet/200702/federal-circuit-rules-explicit-assignment-right-sue-without-transfer-a

  118. >But the article is written as if some inside knowledge was imparted. If that is true, the trick is to figure out the mental filter applied by the article author, and apply the inverse filter to figure out what the author was told, and then reverse engineer that statement to figure out what is really going to happen.

    Patrick, you are a treasure as a commenter and better at some kinds of detail analysis than I am, but sometimes you overthink these things. The least hypothesis is that the writer is a fool who simply mangled what was tossed at him out of recognition according to his own preconceptions. Not that I’m trying to discourage you, really; it’s good that your mental habits are different from mine, you sometimes pick up things that I miss.

  119. @esr:

    Thanks, I think ;-)

    The main points I got from the article were (1) google’s only been in negotations with MMI for 5 weeks, and (2) Microsoft was in negotiations before. Those, if true, were news to me, and valuable in letting me change my hypotheses.

    But before even considering that such things might be factual, I like to check that an article has some grounding in reality.

    That’s why I mused that “Of course, the purported facts in the article aren’t necessarily inconsistent with google merely finding good homes for all the hardware businesses.” If, OTOH, the author had said that the unicorns flying out of Steve Jobs’ butt were mating with Google centaurs, I probably wouldn’t have bothered adding those main points to my internal collection of things which might be true :-)

  120. @Tom:

    I too cannot believe that Google would want to get into the handset business, so what is the explanation for why they would spend so much… on Moto when they seemingly could have got the patent access they wanted for so much less?

    I can think of three plausible reasons:
    (A) I am ignorant of Motorola’s corporate culture, but their public announcements make it appear their leadership views patents as the heart of the business (being a direct, tangible artifact of R&D expenses) — in short, that Moto would deny an independent sale of the patents.
    (B) It’s a form of insurance: the bulk deal and dollar figure are not (merely) to ensure Moto agrees to the deal, but to ensure that regulatory agencies prevent Microsoft, Apple, et. al. from being allowed to counter-bid. After all, it was only with the Nortel auction that regulators seemed to pay any note to anti-trust issues regarding patent sales / transfers. (In addition, the price tag on this deal would automatically have regulators looking askance at any direct competitor placing a bid.)
    (C) The patent lawsuits against Android have escalated to become a very dangerous game of brinksmanship for all involved parties. By setting the sales price so far above typical values, Google has clearly declared their intent to staying in the mobile business, regardless of short-term costs.

  121. @Patrick Mauphin

    That statement alone is enough to tell me that Nilay Patel is spouting errant nonsense. You can’t assign the rights to litigate with a patent, and as RighHaven recently found to its dismay, that jurisprudence applies to copyrights as well.

    I’m the first to admit that I am vastly out of my depth when it comes to patent law, but I am reasonably sure that licensees can litigate their licensed patents under certain circumstances. It depends on the level of rights assigned to them, and perhaps you are right that it requires ‘all substantial rights’, but the point remains that legally it should have been possible for Google to license Moto’s patents in such a way that they would be granted all the rights they are looking for (including the ability to litigate), and at a substantial discount to $12.5B. My question is, why didn’t they?

  122. I can think of three plausible reasons:
    (A) I am ignorant of Motorola’s corporate culture, but their public announcements make it appear their leadership views patents as the heart of the business (being a direct, tangible artifact of R&D expenses) — in short, that Moto would deny an independent sale of the patents.

    I’m pretty sure this at least a major part of the reason. In handsets Motorola has been losing money and mkt share like crazy to HTC, Samsung and Apple with no clear sign of a likely turn around. Moreover I’m pretty sure that the motorola split was deliberately designed to make MMI attractive as a single entity to someone like microsoft, google or an Asian phone/computer maker. If Google just bought/licensed the patents then the rest would not be attractive to buy and would still be losing money. Also recall that buying the lot gives google TV and home entertainment etc. stuff to work on that has a market leading position.

    (B) It’s a form of insurance: the bulk deal and dollar figure are not (merely) to ensure Moto agrees to the deal, but to ensure that regulatory agencies prevent Microsoft, Apple, et. al. from being allowed to counter-bid. After all, it was only with the Nortel auction that regulators seemed to pay any note to anti-trust issues regarding patent sales / transfers. (In addition, the price tag on this deal would automatically have regulators looking askance at any direct competitor placing a bid.)

    that is also possible.

    (C) The patent lawsuits against Android have escalated to become a very dangerous game of brinksmanship for all involved parties. By setting the sales price so far above typical values, Google has clearly declared their intent to staying in the mobile business, regardless of short-term costs.

    Not so sure about this one.

    I think a) is the most likely reason though B may also apply. Also I can see some people in Google seeing an advantage in having in-house hardware and particularly Rf engineers. Even if they are just needed to produce prototypes its much easier for those to be done by a subsidiary than by a 3rd party.

    I don’t know that 12.5B is a reasonable price or not but I think it’s not unjustifiable and, to be blunt, Google has got (IIRC) ~$40 billion just sitting in the bank right now. What else are they going to spend it on? Your typical startup is <1Billion, often more like 10-20million, and it is hard to see Google being allowed to buy established companies that help its current main businesses of search and advertising.

  123. I’m left again with the impression that it is Microsoft that is in disarray. They have this weird deal with Nokia and already they are negotiating – albeit without success – to buy Motorola Mobile? Sure they probably wanted the patents, but still I get the impression of an organization in search of a product strategy and simply not finding one.

    Patent troll isn’t really something that a serious corporation will want to be known as going forward.

  124. >The main points I got from the article were (1) google’s only been in negotations with MMI for 5 weeks, and (2) Microsoft was in negotiations before. Those, if true, were news to me, and valuable in letting me change my hypotheses.

    I think the first point has been brought up in other sources. I’m not sure what it tells us, except for suggesting that Sanjay Jha played a weak hand with commendable skill.

    Which is kind of interesting, actually. I’ve said before that MMI looks to me like a company with some excellent product groups hampered by seriously bad management. I meant to imply, and will say outright now, that MMI’s internal corporate culture is most probably a Dilbert-like swamp of suck in which some good engineers have been quietly seething because they’re surrounded by deadwood and pointy-haired bosses.

    Why do I think this? Item: $1b profit on a $9b gross. Really, MMI? Really? Item: A couple of blockbuster products (notably the Droid handset line), but they were still weak enough to be an acquisition target. Everything about this says most of the bodies on board were timeservers and the corporation had way too many below-the-line expenses baked in.

    On the other hand, the CEO seems to have played his weak hand very well. So why didn’t he, like, fix things? Fire the deadwood, fold up the non-performing product groups, pare the company down to a smaller and nimbler organization with better margins.

    This is not just a historical question. Google is going to face the same issue now.

  125. Tom, to oversimplify, a non-exclusive licensee, which is what a handset maker licensed to use the patent and Android would be, would not have the right to counterclaim for infringement of the licensed patent(s). That makes such useless for a defense by the handset maker themselves. Google would have to intervene themselves in some fashion and wield the patent(s).

  126. @Alex K.

    in short, that Moto would deny an independent sale of the patents.

    @FrancisT

    I’m pretty sure this at least a major part of the reason. In handsets Motorola has been losing money and mkt share like crazy to HTC, Samsung and Apple with no clear sign of a likely turn around.

    Yes, this seems like the most likely reason to me as well. It also explains Moto’s threats to litigate against other Android manufacturers, as well as the high $2.5B reverse breakup fee. Moto had Google against the wall; they knew Google needed the patents and forced them to pay the full $12.5B.

    I don’t know that 12.5B is a reasonable price or not but I think it’s not unjustifiable and, to be blunt, Google has got (IIRC) ~$40 billion just sitting in the bank right now. What else are they going to spend it on?

    Right. This is probably the most valuable thing Google could buy right now. In fact I bet they wish there were a few more opportunities for them to get rid of all that excess cash lying around. It’s not doing much for them just sitting in the bank.

    ESR says: Good analysis; I agree.

  127. @ESR:

    Not sure that’s the right question. The law doesn’t always treat inheritance by a successor-in-interest as a transfer.

    You misunderstood the question, which is whether whatever license to which Google may succeed as the new owners of MM is in any way transferable to Android phone manufacturers.

  128. @Tom:

    legally it should have been possible for Google to license Moto’s patents in such a way that they would be granted all the rights they are looking for (including the ability to litigate),

    Sure, but this is generally done as a sale and a license-back. Because that’s what the transaction usually really is. Sometimes it’s a bit more subtle, like when the patents are only licensed for a particular field of use, but that might get complicated, because google and Mot both want to use the patents for the same business.

    and at a substantial discount to $12.5B. My question is, why didn’t they?

    This has a lot of major assumptions. For a start, why would Mot sell all its bargaining chips to google when it is already embroiled in patent litigation? What happens to the Mot/Apple litigation if Mot says “oh, sorry, we can’t cross-license right now — we just sold google any litigation rights associated with these patents” ???

  129. @esr

    On the other hand, the CEO seems to have played his weak hand very well. So why didn’t he, like, fix things? Fire the deadwood, fold up the non-performing product groups, pare the company down to a smaller and nimbler organization with better margins.

    My guess is that being a skilled corporate negotiator doesn’t imply being skilled at organising a company to make great products.

    Also, you make it sound easy, but in reality, if there is an entrenched culture of pointy-hairedness it might be a big challenge, even for a skilled CEO.

  130. @The Monster:

    You misunderstood the question, which is whether whatever license to which Google may succeed as the new owners of MM is in any way transferable to Android phone manufacturers.

    That’s a good question, and I misunderstood as well. Along with my question about whether Dalvik would qualify as Java Mobile under the license, it makes it seem unlikely that the speculation that Mot is a good weapon against Oracle is accurate.

  131. >I’m left again with the impression that it is Microsoft that is in disarray. They have this weird deal with Nokia and already they are negotiating – albeit without success – to buy Motorola Mobile? Sure they probably wanted the patents, but still I get the impression of an organization in search of a product strategy and simply not finding one.

    Hm. Good point, and one I should have noticed. Microsoft negotiating to buy MMI does suggest, shall we say, strategic incoherence.

    But perhaps this is understandable. Microsoft is in a bad bind; while they were successfully clinging to their desktop monopoly, Linux ate everything else from servers to supercomputers to smartphones (with, in the latter case, a limited exception for iOS that’s no help from Microsoft’s point of view). Microsoft’s planners can see the day coming when smartphone platforms will eat the desktop. So where is their growth room going to come from?

  132. @esr

    So where is their growth room going to come from?

    I think it is time for Microsoft to realise that their days of being an innovative force in the consumer space are over. They need to begin the transition to becoming an IBM-like research and corporate services and consulting company. Not such a bad thing, mind you, but they are going to blow that too if they keep pretending to be the Microsoft of 15 years ago.

  133. Google would have to intervene themselves in some fashion and wield the patent(s).

    That’s not a major problem. They can simply allow it to become common knowledge that anyone suing one of their Android licensees for violating a patent can expect a nice letter from Google’s legal team inviting them to license Google’s patent portfolio to avoid nasty litigation, and oh, by the way, they offer VERY generous terms for such licenses if they agree to similarly generous terms for Android licensees.

  134. The new suit addresses these patents:

    - 7,765,414: Circuit and operating method for integrated interface of PDA and wireless communication system
    - 7,672,219: Multipoint-to-point communication using orthogonal frequency division multiplexing
    - 7,417,944: Method for orderwire modulation

  135. @patrick

    I don’t understand what you’re saying here at all. (1) Mot did tell Oracle to pound sand — that’s why a court order was required; (2) if I wanted to depose a hostile witness, I might choose to depose the least hostile hostile witness I could find. Why was it Mot and not Samsung or HTC?

    No, Moto didn’t tell Oracle to pound sand…they simply didn’t want to testify against the hand that feeds them Android (and maybe buy them out). Pound sand would be “We have a Java license that covers our android versions, go away and bother someone else you morons”. Which Oracle would have to be to pester someone with a useable java license that covered their android phones.

    The answer why Moto and not Samsung is that Moto could not successfully release their JavaME stack via Apache and knew why. Sun owned the IP and controlled the Java standard. There was no way they were going to pass a mobile version of Java build by Moto and destroy their licensing revenue. Dalvik is an end run around this.

    @morgan

    This aren’t my arguments and I poke a hole in it at the end too. However, I CAN see why Google wants control over Dalvik (which they have, open sourced or not) and not have to go through Sun to make their changes.

    On the other hand, if they REALLY wanted this control, they could have developed their own language like MSFT did and forked Java for real and avoided all these troubles. With a big enough check, Sun probably would have allowed an official Dalvik fork. With a big enough check Google buys Sun instead of Oracle and they correct their mistake.

  136. Winter Says:
    >The main question is how Google thinks it will be able to recoup the $12.5B they pay.
    - Income from mobile, was $1B in 2010, that can now be protected by the patents

    I doubt they are really thinking in these terms. As you point out in a later comment, Android is about protecting their ad business. If there was no Android and they had left the world to iOS, then they would have to beg Apple to let them do ads on the primary computing platform of most consumers, which is to say their core business would get crushed.

    Apple has been trying to use the force of government (via patents) to destroy competition, and this patent war chest is a means to fight back. Or to put it another way, it is not about making money, it is about preventing the evisceration of their core business. And they would pay anything they have to for that.

    Assuming that Google intends to use their patents for defense, not offense, they are acting in accordance with their admonition to do no evil. Apple is acting like a patent troll, Google is simply buying Elvish armor to protect against the troll attacks. It costs a lot, but it is better than an ax in your skull.

    Once again, I find it just appalling that all these resources are being committed to a pointless artifact of law — the patent system. What I find even more deeply ironic is the DoJ getting involved. As if they are knights on white horses riding in to save the day. It is kind of like someone chopping off your arm and offering you a band aid to heal your pain.

    It needs to be said again and again: patents destroy innovation. And what is particularly bad about them is that the people who get the shortest end of the stick are the small start up companies who are the source of most new jobs in the country. Surprisingly, they don’t have $10 billion lying around to buy +1 chainmail.

  137. @Jessica Boxer

    Or to put it another way, it is not about making money, it is about preventing the evisceration of their core business. And they would pay anything they have to for that.

    I think this is right. The key question is *not* how Google recoups the $12.5B. As was pointed out earlier, Google has approx. $40B in cash in the bank. To a certain extent it is useful to have this sort of strategic reserve, but at some point you actually have to *use* the reserve for something meaningful. Otherwise it is just inefficiency.

  138. @Nigel:

    No, Moto didn’t tell Oracle to pound sand…they simply didn’t want to testify against the hand that feeds them Android (and maybe buy them out). Pound sand would be “We have a Java license that covers our android versions, go away and bother someone else you morons”.

    How do you know that wasn’t said?

    Which Oracle would have to be to pester someone with a useable java license that covered their android phones.

    Oracle might have figured that Mot wouldn’t mind testifying in a way that would hurt Samsung and HTC simply because Mot had a valid license.

    I think the probability is that Mot doesn’t have a license that would extend to Android, as you would know if you read my other comments, but you haven’t provided any useful evidence or arguments here…

    The answer why Moto and not Samsung is that Moto could not successfully release their JavaME stack via Apache and knew why.

    unless you provide some evidence for this assertion.

    On the other hand, if they REALLY wanted this control, they could have developed their own language like MSFT did and forked Java for real and avoided all these troubles.

    That’s either incredibly disingenuous or incredibly naive of you. 99% of all patents that make it through discovery will easily cover more than a single language.

  139. @FrancisT (and Tom):

    (C) The patent lawsuits against Android have escalated to become a very dangerous game of brinksmanship…

    Not so sure about this one.

    Well, the items were listed in most-to-least likely order, and frankly (C) is right on the edge of what I would consider plausible — even then only because I would be willing to play that brinkmanship game. If I were in that position, my thought would be “If AAPL, RIMM and MSFT want to play with their patent portfolios, we should make sure they understand what the stakes are. This isn’t just a question of collusion, this is TOTAL NUCLEAR WAR.”

    I recognize this doesn’t entirely live the Google motto of “Don’t be evil”, but it is worth considering that the ‘lesser’ evil of threatening full-scale patent war could theoretically be wielded to end the real patent threats.

  140. @Alex K:

    I recognize this doesn’t entirely live the Google motto of “Don’t be evil”,

    Self-defense is never evil.

  141. @Patrick – given that MSFT was able to develop C# and Google able to develop Go, Apple able extend LLVM/Clang for ObjC and develop ObjC 2.0 without issue I don’t see how you can assert that it would have been impossible for Google to develop a C#/Java like higher level version of Go instead of just using Oracle’s Java IP.

    Would it have taken longer and cost more? Sure. Would they now not have any copyright issues? Yep. Would they likely have been able to secure any language patent licenses as needed from Sun without a direct conflict with J2ME? Unknowable but I think likely.

  142. > how you can assert that it would have been impossible for Google to develop a C#/Java like higher level version of Go instead of just using Oracle’s Java IP.

    I didn’t assert that. But you’re asserting that they’re using Oracle’s IP, and you have been doing so consistently.

    > Would they likely have been able to secure any language patent licenses as needed from Sun without a direct conflict with J2ME?

    This, again, completely misses the point. If someone (e.g. Oracle, not Sun, and maybe Microsoft as well) wants to assert a bogus patent, they will certainly do so.

  143. @Patrick

    Of course they are using Oracle’s IP. That is without question. The question before the courts is whether or not it is infringing use. What? You don’t think that Sun developed Java and Google leveraged it?

  144. A very interesting comment from WSJ:

    “People close to the deal said one of Google’s motivations, in addition to the patent trove, was its desire to design not just the way gadgets work, but also how they look, giving it the sort of control over software and hardware that archrival Apple enjoys with its iPhone.”

    http://online.wsj.com/article/SB10001424053111903392904576509953821437960.html#ixzz1VEDRPPEI

    I haven’t seen a hint of this anywhere else, but it could feed into the ideas discussed in this thread where Google potentially could create a reference-implementation for hardware as well as software.
    (I think that the use of “control” by the author is completely misreading Google’s intentions; the author is wearing Apple-colored glasses.)

  145. Of course they are using Oracle’s IP. That is without question.

    Strictly speaking, sure. For example, it is my understanding that, in development, they use Oracle’s Java compiler, the same as anybody else, to create .class files. But in normal conversation, nobody claims that I am using FSF’s IP in a shipping product because I happened to use GCC to compile my code.

    But if you don’t want to hold a normal conversation, and you want to be pedantic, you’re going to have to work a bit harder at it.

    The question before the courts is whether or not it is infringing use.

    No, that still isn’t the first question. For example, I have seen the license for the compiler, and there are no restrictions on using the output. So, that’s not the question on the example of the compiler, or the court would already have answered it quite easily.

    The first thing that the would-be pedant misses in this instance is that Java is not a monolithic ball of IP. First, you have to divide the putative IP into its constituent parts, and then for each part:

    1) The first question is whether or not it really is IP. If it’s not copyrightable or not patentable or not a trademark, it’s not IP.
    2) The second question is whether or not it’s really Oracle’s IP.
    3) The third question is whether or not google is using the IP.
    4) The fourth question is whether or not google’s use of the IP requires Oracle’s permission. Fair use on copyrights, or equitable estoppel on the patents may be issues.
    5) The fifth question is how much google owes, or whether an injunction can be issued, etc.

    So, despite the would-be pedant’s assertions to the contrary, questions 1, 2, and 3 are still very much in play.

    Without accusing the would-be pedant of shilling, I will note for the record that this loosey-goosey conflation of all things Java into a single big ball of undifferentiated highly valuable IP is something that Oracle keeps attempting to accomplish at court, but I sincerely doubt it will fly.

  146. @Cathy:

    What you are speculating is very plausible, which is why I speculated earlier that perhaps google wanted to create a Xerox PARC or Bell Labs.

    If Android is as profitable as they say it is, then the additional cost of some hardware designers to go along with the software designers is easily supportable.

  147. >(I think that the use of “control” by the author is completely misreading Google’s intentions; the author is wearing Apple-colored glasses.)

    Indeed he is. And these “people [allegedly] close to the deal” seem to have no comprehension at all of the grand strategy behind Android. Google isn’t chasing control, it’s chasing the prevention of control.

  148. >That news is an oldie but a goodie.

    Check the date. The Business Insider article I linked to is a couple months more recent.

  149. Agreed. My point was that WP7 already finished behind Bada a quarter ago.

    But it’s interesting to compare the data points across quarters. Assuming data accuracy in both articles, both WP7 and Bada shipments have shrunk, WP7 from under 2.5 to 1.7 M, bada from 3.5 to 2.0 M.

    It would be interesting to know whether Samsung is voluntarily selling less bada, or whether the market is deciding that for them. If they’ve deliberately gone all-in on Android, that 2.0 M could easily be zero this quarter.

  150. There was an interesting video today over as WSJ with Mark Cuban where he mentioned among other things that patents are a big problem. He said that even small start-ups, the minute they achieve any success and get on the radar, someone is going to come after them.

    What has changed is not the law, but the culture of litigation.

    I think all of us who are paying attention are hearing this more and more. Something needs to be done.

  151. @Darrencardinal “What has changed is not the law, but the culture of litigation.”

    Actually, the law changed dramatically with the Federal Circuit Court of Appeals (itself created by Act of Congress only in 1982) upholding software patents, and other gross mutilations of patent law such as business methods patents. That has made the difference.

  152. @Nigel:

    1) If Dalvik infringes on Oracle’s IP, the patents Oracle has alleged that Google is infringing have nothing whatsoever to do wth Java as a language.

    2) Android apps are compiled into Dalvik VM from Java, but they could just as easily be compiled from some other language. it wouldn’t make any difference to the Oracle v. Google case, because the case has nothing to do with Java as a language (see point 1).

  153. @Ravi, @twilightomi, @Don:

    We don’t have to speculate about Google’s patent licensing strategy, because (most of) Android is covered by the Apache License 2.0. Section 3 of the AL says:

    Subject to the terms and conditions of this License, each Contributor hereby grants to You a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable (except as stated in this section) patent license to make, have made, use, offer to sell, sell, import, and otherwise transfer the Work, where such license applies only to those patent claims licensable by such Contributor that are necessarily infringed by their Contribution(s) alone or by combination of their Contribution(s) with the Work to which such Contribution(s) was submitted. If You institute patent litigation against any entity (including a cross-claim or counterclaim in a lawsuit) alleging that the Work or a Contribution incorporated within the Work constitutes direct or contributory patent infringement, then any patent licenses granted to You under this License for that Work shall terminate as of the date such litigation is filed.

    So, even without any new license from Google, anyone using the Android code can’t be sued by Google for patent infringement, unless they sue Google or some other Android user first. And any Android user who sues another Android user for patent infringement is immediately vulnerable to being sued by Google.

  154. On the other hand, the CEO seems to have played his weak hand very well. So why didn’t he, like, fix things? Fire the deadwood, fold up the non-performing product groups, pare the company down to a smaller and nimbler organization with better margins.

    Off the wall theory here – Old.Moto was an American company and a fairly serious defense contractor; that means 537 kibitzers when jobs are on the line. I don’t know if MMI has the same exposure, but…

  155. @Jim Ancona:

    We don’t have to speculate about Google’s patent licensing strategy

    You’re absolutely right in that we are not required to speculate about this. We don’t have to speculate about anything. It’s not mandatory and you don’t have to play the game, but if you’re going to pretend like you win the game because you know how this turns out, you’ll have to share more evidence.

    So, even without any new license from Google, anyone using the Android code can’t be sued by Google for patent infringement, unless they sue Google or some other Android user first.

    This is demonstrably false — see issue 2 below.

    There are at least two issues you haven’t discussed:

    (1) A covenant not to sue is not at all the same as a covenant to defend.

    The question is, once google owns the Mot patents, will they defend all Android implementations out of the goodness of their heart, or will they try to recoup their investment in the patent portfolio by, e.g. charging license fees for being protected by any cross-license agreement they make with Apple or Microsoft, or even by contributing patents to a pool with HTC and Samsung, and maybe even Microsoft and Apple, that licenses “essential smartphone patents” like MPEG-LA licenses “essential MPEG patents”? That seems evil on the surface, but if the cost per handset is low ($5 or less) and Microsoft and Apple are each only getting a buck, and it stops all the litigation nonsense and adds some certainty to Joe Blow’s (or B&N’s) ability to conceive a device and go out and build it without getting sued into oblivion, it might be the least evil answer possible.

    Note that, as patent owners, they could easily participate in such a patent pool, without giving up the right to separately license their own patents to entities that use Android.

    (2) The Apache license only covers use of those patents that are implemented by the code

    If google woke up one morning feeling evil, nothing in the Apache license would prohibit them from asserting an antenna or RF signal processing patent, even against one of their Android licensees.

  156. HTC is busy trying to prove that it is part of the nuclear-armed club, even without google.

    http://www.digitaltrends.com/mobile/htc-levels-new-infringement-suit-at-apple/

    Samsung obviously has patents. Sony Ericsson obviously has patents (and bought more with their stake of the Nortel sale).

    The ones with patents are actually going to be miffed if the ones without patents get a free ride. The more I think about it, the more I think a patent pool makes sense. With the Mot purchase, google is probably in a pretty good position to drive the pool formation. If, for example, HTC proves that they have a nuke that can take out Apple to put in the pool, and then Sony, Ericsson, and Samsung follow suit, it shouldn’t be too hard to drag Apple and Microsoft in. Especially since one of their stated goals is to insure that Android costs something. Unfortunately for Apple and Microsoft, the Android vendors together might be in a strong enough position to insure that it really doesn’t cost all that much.

  157. And then once Apple and Microsoft start being reasonable, and join in the formation of a RAND patent pool based on agreed essential patents, that patent pool entity can retain a percentage of the per-handset proceeds (which should rack up pretty fast) for legal issues, and can deal with crap like this:

    http://www.prnewswire.com/news-releases/kootol-software-limited-sends-informative-notice-to-the-samsung-sonyericsson–lg-ntt-docomo-palm-groupon-and-more-126247448.html

  158. # Darrencardinal Says:
    >I think all of us who are paying attention are hearing this more and more. Something needs to be done.

    Something needs to be done, but nothing actually will be done. Well, with the possible exception of making things worse. If anything the push from the political class is to strengthen patent law, not weaken it.

    There was a wonderful moment of hope when Bilski looked like it was going to fix a lot of stuff in one fell swoop. Unfortunately the USSC went wobbly, and only improved things a little.

    What is really lacking is public awareness of what is going on. To most of the public a patent is something that allows crazy uncle Joe to invent a widget to make your engine run on grass, and to prevent him from getting screwed by the big corporations. In fact, they even made a movie about it (regarding intermittent wipers.) However, that perception is exactly backward. Patents are in fact a tool of big corporations to crush uncle Joe. If you or I can do anything it is to pop that bubble.

    It truly makes me sick to my stomach to think how much poorer we all are because of patents.

  159. I don’t get it.

    Google reported $8.5 billion in net income in FY10, and $6.5 billion for FY09. They’re offering $12.5 billion for MMI, so Google is spending nearly two years of profits to buy a second-rate phone maker that; is unprofitable, almost went bankrupt, and is arguably only the third-best maker of Android devices, behind HTC and Samsung.

    Seriously, What The Fuck??!!?

    The business model of Android was already fscked. Google is giving away the plumbing so that homes are granted unhindered access to free Google utility services (whose meter readings are sold to the highest bidder). But it comes with more complications

    When it took its approach to mobile software, Google made a big bet that smartphones and tablets were sufficiently mature and thus could be built in a way that didn’t require Google owning all points of the value chain. For the last year it has seemed that Google bet right. Android was very quickly adopted by licensees to the point that it achieved nearly 50% share in smartphone shipments last quarter.

    However, cracks are now appearing in the strategy. Issues with intellectual property in Android caused some licensees to have to pay royalties to patent holders, increasing the cost. Fragmentation took hold where some versions of the software were used by some licensees on some products without the option or incentive to upgrade. Finally, some vendors modified the software resulting in missing features or inconsistent user experiences — even to the extent that Google’s own services were omitted.

    All of these problems are a direct result of the approach Google chose with its big bet on Android. As a consequence, it has become increasingly difficult to ensure that Google’s revenue-generating services are properly “flowing” to the end users. The smartphone as we know it today is not good enough or mature enough to support Google’s initial strategic approach with Android. The big bet may have been lost.

    Instead, with Motorola, Google got a hold of the vehicle through which it can create and sell integrated products. The company is thus no longer just a plumber but also a house builder and real estate developer. It can now build showcases that demonstrate the value of its services. The challenge then is how it will sell plumbing to contractors while it also competes with them by building houses.

    Android’s big bet has yet to pay off and Google just doubled down.

  160. @fake account
    “Android’s big bet has yet to pay off and Google just doubled down.”

    Here is a nice report that explains why so many people scourge the net with predictions of Androids imminent doom.

    Yes Android is doomed, doomed, the end is near!

    $80 Android Phone Sells Like Hotcakes in Kenya, the World Next?
    http://singularityhub.com/2011/08/16/80-android-phone-sells-like-hotcakes-in-kenya-the-world-next/

    Earlier this year, the Chinese firm Huawei unveiled IDEOS through Kenya’s telecom titan, Safaricom. So far, this $80 smartphone has found its way into the hands of 350,000+ Kenyans, an impressive sales number in a country where 40% of the population lives on less than two dollars a day. The IDEOS’s success in this market firmly establishes the open source Android as the smartphone of the people and demonstrates how unrelenting upswings in price-performance can jumpstart the spread of liberating technologies. Thanks to low-cost Androids, the geographically-untethered smartphone is here to stay, and it simply cannot be stopped.

    …….

    Despite these hiccups, the functionality is still there, and at end of the day, it’s an Android phone with 300,000+ apps. Besides, what’s important isn’t the phone’s tech specs, it’s the affordability.

    Obviously, such abominations cannot be tolerated, $DEITY must interfere and the deluge will be upon us. Apple, MS, and Oracle will burn Android in Kenya courts with their Software patents.

  161. And here a newspaper article that tells us that Page agrees with Eric ;-)

    Motorola deal gives Google even more mobile muscle
    http://seattletimes.nwsource.com/html/businesstechnology/2015920343_google16.html

    Page acknowledged the value of the Motorola patents, saying in a blog post: “Our acquisition of Motorola will increase competition by strengthening Google’s patent portfolio, which will enable us to better protect Android from anticompetitive threats from Microsoft, Apple and other companies.”

    Here is the original blog post by Larry Page:

    Supercharging Android: Google to Acquire Motorola Mobility
    http://googleblog.blogspot.com/2011/08/supercharging-android-google-to-acquire.html

    We recently explained how companies including Microsoft and Apple are banding together in anti-competitive patent attacks on Android. The U.S. Department of Justice had to intervene in the results of one recent patent auction to “protect competition and innovation in the open source software community” and it is currently looking into the results of the Nortel auction. Our acquisition of Motorola will increase competition by strengthening Google’s patent portfolio, which will enable us to better protect Android from anti-competitive threats from Microsoft, Apple and other companies.

  162. If the Department of Justice agreed with Google’s argument that the patent purchase would too drastically alter the competitive mobile phone landscape, then why wouldn’t they agree the same here via a reciprocal complaint from Microsoft or Apple

    Another point, that was specifically mentioned by the DoJ regarding the CPTN portfolio, is that Microsoft, Apple and all the other members are competitors. Why are they so quick to jump into bed with one another? The DoJ had no problems with Apple buying Nortel on their own (Apple had pre-approval) but the rockstar group raises concerns.

  163. >I don’t get it.

    Yes, we know. You’ve been not getting it for many months now. It’s probable you never will, but let me try explaining it in extremely simple words.

    Apple and Microsoft (hereafter to be known as “the asshats”) have learned that they can’t beat Android on capability or features or price, and it’s within 90 days of attaining absolute majority market share in the U.S. and worldwide, so they’ve settled on trying to shut it down or bleed it dry with a junk-patent blitz. Google, in response, just paid a little over 25% of its strategic reserve fund to acquire a bunch of blocking patents with which they could very likely get the ITC to shut down the asshats’ smartphone businesses entirely.

    Very soon now, the asshats’ junk-patent blitz will stop under threat of we’ll-nuke-your-sorry-asses-if-you-don’t-play-nice. Google will carve MMI into tasty steaks and chops and filets, keep a few of the juiciest bits like the patents for itself, and sell the rest off to hungry handset makers like HTC, LG, and Sony Ericsson (the CEOs of all of which have issued statements of support for the acquisition). By doing so, it will recoup a good deal of its cash investment. Google will then license the patents on very liberal royalty-free terms to anyone who doesn’t try to play asshat games with Google.

    Android phones will continue to clobber the crap out of the competition, swiftly grow to completely dominate the smartphone market, and become the core devices of personal computing and Internet access. This will accomplish what Google really cares about, which is ensuring that future asshats cannot fuck with its search, advertising, and cloud businesses by getting between Google and the consumer.

    I hope this has been sufficiently clear.

  164. @esr

    Yes, we know. You’ve been not getting it for many months now. It’s probable you never will, but let me try explaining it in extremely simple words.

    Apple and Microsoft (hereafter to be known as “the asshats”) have learned that they can’t beat Android on capability or features or price, and it’s within 90 days of attaining absolute majority market share in the U.S. and worldwide, so they’ve settled on trying to shut it down or bleed it dry with a junk-patent blitz.

    One thing I think *you* don’t get, Eric, is that competing on quality and competing with litigation are not mutually exclusive propositions. ‘Compete, don’t litigate!’ goes the oft-heard refrain. No; Apple is doing *both*.

    You can claim that Apple’s patent lawsuits not morally laudable – that’s fine – but when you say that the iPhone isn’t competitive with Android on the quality of the OS, you sound a little bit silly.

    Just because Apple is using litigation as a tactic, it doesn’t mean they ‘have learned that they can’t beat Android on capability or features’. What it means is that Apple is engaged in full-spectrum warfare, using any and all means at its disposal.

  165. @esr
    “Very soon now, the asshats’ junk-patent blitz will stop under threat of we’ll-nuke-your-sorry-asses-if-you-don’t-play-nice. ”

    That is OK for Apple. But for RIM, MS, and Nokia, losing means bankruptcy or breakup. Neither of these three will survive losing the mobile races in one piece.

    My feeling is that RIM will simply go bankrupt or switch to selling Android phones and then go bankrupt. Nokia will split into an MS and CheapPhone part. The former will go under with MS, the latter will switch to selling low cost Android phones somewhere in the future (they already cut the company in two with the MS merger).

    MS’ owners will dump Ballmer within (half?) a year and then start selling off the parts, ie, Bing, XBox, Sharepoint&Office, Windows. In the end, MS might suffer the same fate as Novel.

  166. @Tom
    “Just because Apple is using litigation as a tactic, it doesn’t mean they ‘have learned that they can’t beat Android on capability or features’.”

    That is what MS always said. And look where they got.

    Development is a function of the number of developers. And FLOSS has shown it can efficiently recruit and deploy more developers than any conglomerate of firms have been able to do. That is why Linux runs on the top 500 supercomputers, most web servers, and on most smartphones, set-top-boxes, and routers. Windows could not break out of the desktop and MacOS is still limited to consumer devices. Neither MS nor Apple can deploy the necessary number of developers to break out of these niches.

  167. @Winter

    Development is a function of the number of developers.

    No, it *really* isn’t.

    That is why Linux runs on the top 500 supercomputers, most web servers, and on most smartphones, set-top-boxes, and routers. Windows could not break out of the desktop and MacOS is still limited to consumer devices. Neither MS nor Apple can deploy the necessary number of developers to break out of these niches.

    The Linux community can be rightly proud of all those achievements, but Apple has never been interested in having its software on all devices, or having its devices in the hands of *all* customers. I have said this before: Apple is interested in two things and two things only:

    1. Make money.
    2. Make great products.

    Any level-headed assessment will conclude that it is doing pretty well on both those aims.

  168. @Tom
    “No, it *really* isn’t.”

    Yes it is.

    Not if you want to get out a single product. But if you want to support X different hardware architectures, Y different protocols, and Z different applications each of these implementations will require (on average) n developers. So you need a total of N = n * (X + Y + Z) developers. If you have a limited N, you are limited in the coverage of architectures, protocols, and/or applications.

    Both MS and Apple tried to get into HPC and Super Computers on the high end and embedded devices on the low end. And both failed simply because {N(Apple), N(MS)} < N(Linux). So both Apple and MS fell back to what they did best: Consumer devices for Apple and marketting and extortion for MS.

    And both both Apple and MS are making lots of money using their strengths. Still, on the end, Linux will rule computing simply because Linux can recruit and deploy much more developers than both Apple and MS combined. And if one of the BSDs had been able to recruit more developers, that BSD would have ruled.

    I think it is that simple (simple in the sense that going to mars is simply launching a rocket that can carry a crew and safely return it)

  169. @Winter

    Yes it is.

    Not if you want to get out a single product. But if you want to support X different hardware architectures, Y different protocols, and Z different applications each of these implementations will require (on average) n developers. So you need a total of N = n * (X + Y + Z) developers. If you have a limited N, you are limited in the coverage of architectures, protocols, and/or applications.

    I am really not sure what point you are trying to make. This seems to be completely irrelevant to the discussion about patent litigation.

    But, to reiterate: Apple isn’t about supporting every architecture and protocol in the world, or dominating every market in the world. Apple is about *focus*. I’m not sure what this Apple super computer effort is that you are talking about, but even if Apple has dabbled in other areas in the past, there is absolutely no doubt that Apple is completely focussed today on making the best user-focused devices in the world in the markets it chooses to enter.

    To achieve this Apple does not need a million second-rate developers covering every obscure chipset and device driver in the world. It just needs a thousand *great* developers who can focus on the architecture that Apple has chosen to support.

  170. @Tom
    “I’m not sure what this Apple super computer effort is that you are talking about,”

    ‘Big Mac’ supercomputer one of world’s fastest
    http://news.cnet.com/2100-1008_3-5095026.html

    @Tom
    “To achieve this Apple does not need a million second-rate developers covering every obscure chipset and device driver in the world.”

    I know how well Apple respects the choices of the consumers in the world. It is this same dedication that drives Apple’s efforts to supply some people in this world with phones, and not others.

  171. @Winter

    ‘Big Mac’ supercomputer one of world’s fastest
    http://news.cnet.com/2100-1008_3-5095026.html

    This has nothing to do with Apple. It’s an independent effort by the Virginia Tech.

    I know how well Apple respects the choices of the consumers in the world. It is this same dedication that drives Apple’s efforts to supply some people in this world with phones, and not others.

    First of all, I take it this means you admit that Apple is not hampered in its goals by a lack of developers covering every architecture on the planet?

    That established, let me just say that consumers do not care one iota what processor is in their phone. They care that it does what they want it to do with the minimum of frustration. Apple ‘respects the choices of the consumers of the world’ by giving them an additional choice: iPhone.

    And, no, they are not interested in selling phones to every person in the world.

  172. $80 Android Phone Sells Like Hotcakes In Kenya
    http://tech.slashdot.org/story/11/08/17/0144227/80-Android-Phone-Sells-Like-Hotcakes-In-Kenya
    “Earlier this year, the Chinese firm Huawei unveiled IDEOS through Kenya’s telecom titan, Safaricom. So far, this $80 smartphone has found its way into the hands of 350,000+ Kenyans, an impressive sales number in a country where 40% of the population lives on less than two dollars a day. The smartphone is the exemplar of a truly liberating device, and thanks to Android and Huawei, it has the potential to reach virtually untapped markets.”

    I bet it would sell well in the West also to pre-paid users who do not value the long battery life associated with a truly dumb phone.

  173. @Tom
    “This has nothing to do with Apple. It’s an independent effort by the Virginia Tech.”

    That is not how things work in Academia. They won’t shell out millions to buy and disassemble iMacs. They collaborate with Apple.

    @Tom
    “That established, let me just say that consumers do not care one iota what processor is in their phone. They care that it does what they want it to do with the minimum of frustration.”

    They do. Because the processor determines battery life, speed, graphics, and most important, price. And to some 5.5 billion people in the world, that is the difference between a phone and no phone. And no phone is much more frustrating than any UI known. I am pretty certain that most people prefer a phone over no phone before they start nagging about “user experience”.

    @Tom
    “And, no, they are not interested in selling phones to every person in the world.”

    It is known that the majority of the human race returns the privilege and does not buy an Apple phone.

  174. @Winter

    That is not how things work in Academia. They won’t shell out millions to buy and disassemble iMacs. They collaborate with Apple.

    Sure, maybe Apple gave them a discount, or even free hardware to get some free PR, but that is a far cry from Apple actually trying to be a force in HPC. They are not in that market, they do not care about that market.

    They do. Because the processor determines battery life, speed, graphics, and most important, price. And to some 5.5 billion people in the world, that is the difference between a phone and no phone. And no phone is much more frustrating than any UI known. I am pretty certain that most people prefer a phone over no phone before they start nagging about “user experience”.

    Yes, people care that their phone is responsive and has good battery life and all the rest of it. And guess what? The iPhone does all those things! Doesn’t mean that people need a whole bunch of different iPhone models with different chipsets to choose from. Again, as long as the phone does what people want it to do they don’t want or need a choice of hardware architecture.

    And, yes, the iPhone’s price will make it unattainable for most people on the planet. Sorry, but Apple doesn’t care. As long as enough of the people who *can* afford to buy the iPhone do so, Apple is happy.

    It is known that the majority of the human race returns the privilege and does not buy an Apple phone.

    And that’s fine.

  175. @Tom
    “And, yes, the iPhone’s price will make it unattainable for most people on the planet. Sorry, but Apple doesn’t care. As long as enough of the people who *can* afford to buy the iPhone do so, Apple is happy.”

    The same with Rolls Royce and Bentley.

    But you wrote:
    @Tom
    “What it means is that Apple is engaged in full-spectrum warfare, using any and all means at its disposal.”

    So, not only does Apple not want to sell every person on earth a phone, they also fight to prevent others to sell these people phones. Because that is what this all out warfare is about. Apple wanting to stop Android hand set producers to sell phones. Including to people that cannot buy an iPhone.

  176. @Winter

    The same with Rolls Royce and Bentley.

    Exactly. Although Apple isn’t quite as extreme as those examples. Maybe Mercedes or Porsche would be closer to the truth.

    So, not only does Apple not want to sell every person on earth a phone, they also fight to prevent others to sell these people phones. Because that is what this all out warfare is about. Apple wanting to stop Android hand set producers to sell phones. Including to people that cannot buy an iPhone.

    Apple is fighting the Android handset manufacturers not because of their super low-end crap-phones, but because they also make phones that *do* compete, and compete effectively, in the markets Apple is in. Believe me, if HTC only targeted the $2-a-day Kenyan market Apple would be quite happy to leave them alone.

  177. @Tom:

    Believe me, if HTC only targeted the $2-a-day Kenyan market Apple would be quite happy to leave them alone.

    The way that mass-market electronics works, the only way to be able to address the low-end market is to work your way down the price curve.

  178. @Patrick Mauphin

    The way that mass-market electronics works, the only way to be able to address the low-end market is to work your way down the price curve.

    Obviously this is true, although I am not sure what point you are making.

  179. @Tom
    “Obviously this is true, although I am not sure what point you are making.”

    I know my point.

    Apple is working hard to deny consumers (rich and poor) a choice. Anyone who fights an all our war against people having a choice for “fun and profit” is *evil* in the good old sense.

  180. Google is in such a mess with Android…
    That they need to shell out 12 billion bucks to buy a second rated handphone maker and it’s patent.

    Even with it;s 17 thousand patent , it did not stop MS and apple from suing their Moto Android phone. Looks like those Moto patent will be useless to Android.

    And With Oracle the database maker and Java overlord looks likely to win their case against google with google’s boss own e-mail account. Just a matter of how many million or billlion…..

    Google looks so desperate, that a agree to do a fine of 2.5 billion if the deals with Moto fail to break through.

    Moto wins both way , get sold with an overprice 12.5 billion tag for a failing handset maker which is losing money and share falling faster than Nokia.

    or just get 2.5 billion doing perfectly nothing and future chance of more money by suing their sibling Android maker.

    Google is in a mess. Android problem is still not fix. They still can’t make money in mobile. All their money comes from the desktop. The money they make from mobile, Most of it comes from the IOS not Android.

    the ORacle problem still persist to exist. ORacle is system/software maker not a handset maker. Plus the patent they bought from Moto still won’t protect their partner from handphone maker Nokia, RIM, Apple and MS. It might neutralize Google itself from being sued
    directly, but android problem still persist.

    And what to do with junk part? sell their second rated hardware making division cheaply and fire the rest of the 19000 workers. Must have cost cheap money to fire them or hire them doing nothing?

    Or somehow with the help of big Google help Moto make some fantastic hardware that sells greatly with the help of special software n services expertise from Google. Moto did so well that at it threaten HTC and Samsung?

    Or somehow Google don’t have any additional expertise and s/w therefore Moto still make crap devices and still continue to bleed more money which Google the owner/shareholder would be so happy about it?

    All this while Google still refuse to submit the full opensource HoneyComb Android OS!!

    They just reveal the useless GPL part. Who wanna fork that part anyway? Even the linux ppl are complaing about android breaking their license…

    HoneyComb is as open with it’s GPL part as MacOS is open with it’s Darwin/BSD part!!!

    Good Luck Google for being all good and open, Just ask the Chinese how good and just you are.

  181. @Winter

    I know my point.

    I was addressing Patrick.

    Apple is working hard to deny consumers (rich and poor) a choice. Anyone who fights an all our war against people having a choice for “fun and profit” is *evil* in the good old sense.

    Apple isn’t the Boy Scouts of America. Suing Android manufacturers (which is what I assume you are talking about) might not earn Apple any prizes for being warm and fluffy, but they haven’t broken any laws, they haven’t caused anybody pain or suffering, they haven’t stolen, lied, or cheated. They have brought an IP lawsuit against a company they allege has infringed their intellectual property. Now, you might not agree with Apple on the merits of the case, and you might think the patent system needs reform (I certainly do) but let’s not turn this into another over-dramatised good vs. evil morality story. It’s silly. Let’s just remember that we are talking about phones and tablets here. Nobody is being denied food or life-saving drugs or having their rights to free-speech abridged or being oppressed by an evil dictator. Keep it in perspective.

  182. @Tom
    “they haven’t caused anybody pain or suffering, they haven’t stolen, lied, or cheated.”

    That is debatable.

    @Tom
    “They have brought an IP lawsuit against a company they allege has infringed their intellectual property.”

    Nope, they have abused a broken legal system to deny people choice of products. I know that there are people who think “Legal” fully equals “Moral”. I am not such a person. Apple might have not broken laws, I still consider what they do and did evil.

    @Tom
    “Nobody is being denied food or life-saving drugs or having their rights to free-speech abridged or being oppressed by an evil dictator.”

    Actually, you might be incorrect on this point too. Terry Pratchett had a nice go on this one in “Going Postal”.

  183. >let’s not turn this into another over-dramatised good vs. evil morality story.

    No, this time we should in fact do exactly that. Because the patents involved are junk, and Apple is suing not to recover the fruits of invention but to shut down competition that is outdoing it on every metric except collecting fat margins. Same goes for Microsoft except that they’re so inept they’re not even collecting the fat margins.

    I can imagine a universe in which Apple and Microsoft are suing with non-junk patents and there’s some justice to their positions, but it’s not the one we live in.

  184. @Tom:

    Believe me, if HTC only targeted the $2-a-day Kenyan market Apple would be quite happy to leave them alone.

    The way that mass-market electronics works, the only way to be able to address the low-end market is to work your way down the price curve.

    Obviously this is true, although I am not sure what point you are making.

    You say that Apple doesn’t care if somebody sells $80 phones in Kenya, but you admit that Apple cares deeply if somebody sells the necessarily higher cost precursor phones.

    So, either you haven’t thought it through, or you have thought it through and are cynically hoping that the rest of us (a) either can’t think it through for ourselves, or (b) don’t really care all that much about the Kenyans.

    let’s not turn this into another over-dramatised good vs. evil morality story. It’s silly. Let’s just remember that we are talking about phones and tablets here.

    Well, obviously you don’t care much about the downtrodden of the world, or you wouldn’t think that it’s peachy-keen fine for Apple to do its damnedest to keep them downtrodden.

  185. @morgan, patrick, winter, et al – I’m so far behind this thread that I can’t answer each response. :)

    But I think that folks believe that when I say IP I only mean patents. There is a copyright component to Oracle’s lawsuit and while less important, still relevant in whether or not Google used Sun IP to develop Android. Infringing or not, real “IP or not. You can create all the criteria you want to try to justify this but ultimately Google didn’t care about doing the right thing (rewarding the upstream) because it would cost them a little more money and effort.

    What seems clear to me is that Google managed to achieve what Microsoft could not. They embraced mobile Java (look! code android using Java!), extended it (Dalvik, etc) and extinguished it (J2ME is effectively dead). Legal or not, I don’t consider this non-evil and very Microsoft like.

    The funny thing is that F/OSS folks are still in love with them and hate Apple with some weird passion. I don’t get that. Apple’s desire is to make products every day users can actually really use. They’ve never claimed openness or not being evil as a goal. If it takes a locked down walled garden that’s a perfectly fine design decision to meet the objective that their products are elegantly designed and easy to use by the average human.

    That they make huge amounts of money indicates that they have been largely successful in their goal. Their users and developers are very happy with their technical design decisions, ease of use and revenue from apps.

  186. @esr if Apple is being outdone on every technical metric why do iPhones and iPads sell so well?

    Because everyone that buys one is either stupid, misinformed, duped or an Apple zealot?

    Android is growing much faster but Apple is pretty much selling every device they can make with large margins and increasing sales year after year.

    Even the iPhone 4 after antennagate has been a huge huge seller. 18 MONTHS after launch in the face of new Android handsets and the impending iPhone 5 launch they sold 20.3M units.

    Which makes more sense? These people are all stupid or Apple makes damn fine products?

  187. @Patrick Mauphin

    You say that Apple doesn’t care if somebody sells $80 phones in Kenya, but you admit that Apple cares deeply if somebody sells the necessarily higher cost precursor phones.

    So, are you saying you don’t think my assertion is true?

    Well, obviously you don’t care much about the downtrodden of the world, or you wouldn’t think that it’s peachy-keen fine for Apple to do its damnedest to keep them downtrodden.

    Come on, this is ridiculous. Apple is not trying to keep anybody downtrodden. What interest do they have in that? And I hardly think handing out cheap android phones is the solution to Africa’s problems.

  188. Nigel writes: The funny thing is that F/OSS folks are still in love with them and hate Apple with some weird passion. I don’t get that. Apple’s desire is to make products every day users can actually really use. They’ve never claimed openness or not being evil as a goal. If it takes a locked down walled garden that’s a perfectly fine design decision to meet the objective that their products are elegantly designed and easy to use by the average human.

    Nigel, its odd that you claim not to “get” the antipathy toward Apple, but then list the reasons in the same paragraph and claim that those are great choices. Well, obviously not everyone agrees with you that the walled garden is a great choice. Hardly a “weird passion”.

  189. Tom, cheap communications may not be the “the” solution to Africa’s problems, but it may be “a” solution to some of them.

    Obviously it can’t hurt.

  190. @Nigel:

    But I think that folks believe that when I say IP I only mean patents.

    If you read my post at all, you would see that I understand what IP means perfectly.

    but ultimately Google didn’t care about doing the right thing (rewarding the upstream) because it would cost them a little more money and effort.

    And… Here’s where we vehemently disagree. Google has opensourced Dalvik. If the upstream cares, they can come and get it. And if you think that creating Dalvik was about stiffing Sun or that it didn’t take some money and effort to create it, you’re really not paying attention.

    What seems clear to me is that Google managed to achieve what Microsoft could not. They embraced mobile Java (look! code android using Java!), extended it (Dalvik, etc) and extinguished it (J2ME is effectively dead). Legal or not, I don’t consider this non-evil and very Microsoft like.

    Microsoft’s embrace/extend/extinguish is all about killing competition. Open source is all about enabling competition. Which is exactly what Sun claimed they were doing with Java, and what Google is doing with Dalvik, and what Oracle is trying to kill.

    The funny thing is that F/OSS folks are still in love with them and hate Apple with some weird passion. I don’t get that.

    Of course you don’t, because you have an extremely warped viewpoint about right and wrong.

  191. # Nigel Says:
    >That they make huge amounts of money indicates that they have been largely successful in their goal. Their users and developers are very happy with their technical design decisions, ease of use and revenue from apps.

    I always liked Apple as a company, though I never really used their product. (To be honest, I have tried using a Mac, and I find it extremely difficult and confusing — but that is probably because I am familiar with Windows. The iPhone is nice, but not much different than Android.)

    However, I won’t do business with them (and I sold their stock) for two reasons:

    1. They became a patent troll.
    2. They are set to destroy the freedom of software developers by requiring approval of your apps before you can install them.

    On this latter point, for sure, they have every right to do that, but that doesn’t mean I don’t think it is deeply destructive, and something I will resist vehemently. All you Apple fanboyz hated Bill Gates, but he was never so tyrannical as to demand complete control of everything you put on your windows box.

    So in summary, why do F/OSS and Windows people (like me) hate Apple? Because they are evil patent trolls, and tyrannical oppressors out to destroy our freedom to develop and deploy software. However, as evil tyrants go, one has to admit that the trains actually do run on time on iOS.

  192. @Tom:

    > So, are you saying you don’t think my assertion is true?

    Not at all. Apple really doesn’t care about the $80 Kenya phone. But after all the hints I gave, if you still can’t connect the dots about how, if Apple had their way, that phone would never have materialized, then you are either stupid or willfully igorant.

    > Apple is not trying to keep anybody downtrodden. What interest do they have in that?

    The road to hell is paved with good intentions. Apple, even when informed of the results of some of their actions, persists, so it’s hard to even claim their intentions are good any more. What is more important, whether Apple wants to keep people downtrodden, or whether they are abusing the legal system in a manner that, carried to its logical conclusion, will have that effect?

  193. @esr

    Because the patents involved are junk, and Apple is suing not to recover the fruits of invention but to shut down competition that is outdoing it on every metric except collecting fat margins.

    I have not looked in detail at the patents and other IP involved, so it might well be that you are right (if you have a good source on this I would honestly appreciate a link). Let’s say for the moment that you are. It is then perfectly reasonable (and I think I have said this before) to say that Apple is cynically abusing a poorly-implemented patent system to gain an advantage in the market. I would agree that such an action would be unfair, dishonest, and anti-competitive.

    What I would not agree with is to conclude that ‘Apple is evil’. The reason is that you have extended a specific instance of wrong-doing to condemn everything the company does. Such a conclusion is unwarranted, and misleading. I can just imagine a future argument:

    you: You shouldn’t use an iPhone because Apple controls the platform, and they might suddenly change the system to ban you from sending text-messages that criticise the government.

    me: ok, well technically that is true, but Apple would have no incentive to do such a thing, and has no track record in behaving in such an irrational fashion

    you: but we already know that apple is evil (remember, we agreed that after the patent thing) so therefore you cannot trust them

    Such an argument might sound superficially convincing, but the term ‘evil’ actually obscures the fundamental illogicality of it. What you would actually be arguing is ‘Apple unfairly used the patent system therefore they might at any time cripple your phone for nefarious purposes’. A complete non-sequitur.

    This is the reason I am happy to support reasonable criticism of Apple, along the lines of ‘Apple’s lawsuit is unfair and anti-competitive’, but not broad over-dramatic absurdities like ‘Apple is evil! They are trying to keep Kenyans downtrodden!’

    Another point is that Google is not exactly smelling of roses right now either. I don’t claim that they are evil or that they should be flogged for this, but they have clearly abused their advertising profits to undercut another industry in which they are not directly trying to compete in order to maintain their search monopoly. I would say this is anti-competitive. I don’t blame them, and I’m not accusing them of child-abuse or anything, but I think there is a case to be made there.

  194. @Patrick Maupin

    Not at all. Apple really doesn’t care about the $80 Kenya phone.

    That’s the only point I was trying to make.

    But after all the hints I gave, if you still can’t connect the dots about how, if Apple had their way, that phone would never have materialized, then you are either stupid or willfully ignorant.

    I never made an argument against this. Boy, why does every discussion with you have to escalate to accusations of stupidity? It’s a little bit puerile.

  195. @SPRQ

    Tom, cheap communications may not be the “the” solution to Africa’s problems, but it may be “a” solution to some of them.

    Certainly. But there are plenty of phones out there that provide much cheaper communications than even that $80 android phone. I don’t think it is a priority for Kenyans to be able to play ‘Angry Birds’.

  196. Sorry, I meant ‘SPQR’. Typo.

    I wouldn’t want to Romans pissed at me so I thought I had better correct that.

  197. Tom,

    In this context some of us are using evil the way Google does when they say “Don’t be evil.” When Google says that, they mean don’t be “unfair, dishonest, and anti-competitive”. They say that because being “unfair, dishonest, and anti-competitive” has nasty side effects like helping to keep Kenyans downtrodden. These are subtle points, with shading added to throw them into high relief so they can be noticed. You can tell because we aren’t using lots of exclamation points and all caps. They are not broad over-dramatic absurdities.

    Yours,
    Tom

  198. # Tom Says:
    >Such an argument might sound superficially convincing, but the term ‘evil’ actually obscures the fundamental illogicality of it.

    You are incorrect in claiming that these two things are independent. Character matters, (do I sound like Sarah Palin?) in the sense that character indicates not just a pattern of behavior, but a meta-pattern of behavior. If you act in a bad way in this instance then it increases the likelihood you will act in a bad way in that instance. (This is both predicatively and causitively true.)

    That is why the word “evil” is used. It doesn’t mean “acts in a particular bad way”, but it means “has bad meta-patterns.” I’m not a huge fan of the word evil (even though I recently used it, somewhat jocularly.) I think people use it to shift blame. But, for sure, meta-patterns matter.

    > I don’t claim that they are evil or that they should be flogged for this, but they have clearly abused their advertising profits to undercut another industry

    Being so good that you kick your competitors’ ass is not anti competitive. It is just good business.

    > in which they are not directly trying to compete in order to maintain their search monopoly.

    That is a ridiculous claim. There are gazillions of search engines out there. Google is the most popular due to a combination of being historically very good, and because of great market positioning. Governments create monopolies, private companies create overwhelmingly compelling products.

  199. Tom,

    > I never made an argument against this. Boy, why does every discussion with you have to escalate to accusations of stupidity? It’s a little bit puerile.

    I think I can answer this. Patrick did not used to do this, but he is under a lot of stress which makes him cranky. I am the same way, but my stress level is a little lower right now.

    > I don’t think it is a priority for Kenyans to be able to play ‘Angry Birds’.

    No, but cheap, handheld, internet connected computers are a priority. That last was a very bad point on your part. I have just gotten back from a week long Speech and Debate camp. I now know a lot of junior high and high school kids who would have really raked you over in their rebuttals. The best ones would have made you look foolish in cross-ex. I mean that is really a bad point.

    Yours,
    Tom

  200. P.S. One of the high schoolers competed in a showcase debate where he almost cornered and beat one of the really smart and capable adults. Making really bad points does not mean you are stupid.

  201. @Nigel

    What seems clear to me is that Google managed to achieve what Microsoft could not. They embraced mobile Java (look! code android using Java!), extended it (Dalvik, etc) and extinguished it (J2ME is effectively dead).

    J2ME was on life support long before Android, and the iPhone yanked the plug.

    The funny thing is that F/OSS folks are still in love with them and hate Apple with some weird passion. I don’t get that.

    Then you’re being willfully obtuse. Apple’s position is that running software they don’t approve of on “your” device should be a federal crime. Google provides the Android source and allows development without begging anyone for permission. How could you possibly expect the position of FOSS advocates to be different?

    @Jessica Boxer

    However, I won’t do business with them (and I sold their stock) for two reasons:

    Your reasons are absolutely correct and why I have no intention of owning an iOS device. I do buy Macs because they’re well designed, powerful, and reasonably open (amusingly, a combination which isn’t possible according to the logic of iOS fanboys), and I want to encourage Apple to continue making general purpose computers. And I still own some AAPL as a psychic hedge.

    All you Apple fanboyz hated Bill Gates, but he was never so tyrannical as to demand complete control of everything you put on your windows box.

    As I’ve said before, if Microsoft had the kind of power in the 90s that Apple is going for today, the web as we know it wouldn’t exist.

  202. @Jessica Boxer

    I’m going to take this in reverse order.

    That is a ridiculous claim. There are gazillions of search engines out there. Google is the most popular due to a combination of being historically very good, and because of great market positioning. Governments create monopolies, private companies create overwhelmingly compelling products.

    I certainly don’t deny that Google has the best search engine out there. I hope you won’t deny that they *do* have a monopoly, whether it was fairly acquired or not.

    That monopoly, and by extension Google’s ad revenues, are now under attack because of a shift to mobile computing and narrow-band, domain-specific methods of looking for information on mobile platforms that are controlled by the likes of Apple and Microsoft. Google has therefore used their excess cash, earned through advertising, to provide a free operating system to handset vendors. They can do this because unlike Apple et al they don’t have to make a profit from selling phones or licenses. They are not in that business, so they can disrupt it happily in order to protect their search monopoly.

    That *is* anti-competitive.

    That is why the word “evil” is used. It doesn’t mean “acts in a particular bad way”, but it means “has bad meta-patterns.” I’m not a huge fan of the word evil (even though I recently used it, somewhat jocularly.) I think people use it to shift blame. But, for sure, meta-patterns matter.

    The reason I trust Apple not to do crazy things to its customers (such as the text censorship example I gave) is not that they have ‘good character’ but rather that their interests are aligned in such a way that to do so would be damaging to them.

    I object to the word ‘evil’ in this context because it only serves to obscure and inflame.

  203. @Tom DeGisi

    No, but cheap, handheld, internet connected computers are a priority. That last was a very bad point on your part. I have just gotten back from a week long Speech and Debate camp. I now know a lot of junior high and high school kids who would have really raked you over in their rebuttals. The best ones would have made you look foolish in cross-ex. I mean that is really a bad point.

    My point was not meant to be taken literally, but rather to illustrate that there are many very cheap mobile phones out there that can do calls, texting, email, web browsing that are a lot cheaper than $80. ‘Angry Birds’ was supposed to represent all the nice bells and whistles offered by Android that aren’t essential to providing cheap communications, and thereby illustrating that Kenyans are not doomed to be cut off from communication by not having Android phones.

    It was only a few short years ago that even we in the first world did not have super smartphones like Android available to us.

  204. @Tom
    It is not upto anyone to decide for the kenyans what level of connectivity is good enough. Or what type of apps should be sufficient. That is upto them.

    Trying to abuse the law to force such limitations upon the world would qualify as evil in my book.

  205. @Tom:

    Let’s take this in context and linear order, shall we? I will paraphrase into much simpler statements.

    You wrote “Apple doesn’t care about other manufacturers doing X. They only care about other manufacturers doing Y.”

    Apple is fighting the Android handset manufacturers not because of their super low-end crap-phones, but because they also make phones that *do* compete, and compete effectively, in the markets Apple is in. Believe me, if HTC only targeted the $2-a-day Kenyan market Apple would be quite happy to leave them alone.

    Then I wrote “The only way for other manufacturers to do X is for them to do Y first.”

    The way that mass-market electronics works, the only way to be able to address the low-end market is to work your way down the price curve.

    Then you wrote “So?”

    Obviously this is true, although I am not sure what point you are making.

    Then I wrote “Apple may not care about other manufacturers doing X, but if they stop them from doing Y they are effectively stopping X as well.”

    You say that Apple doesn’t care if somebody sells $80 phones in Kenya, but you admit that Apple cares deeply if somebody sells the necessarily higher cost precursor phones.

    So, either you haven’t thought it through, or you have thought it through and are cynically hoping that the rest of us (a) either can’t think it through for ourselves, or (b) don’t really care all that much about the Kenyans.

    Then you wrote “So do you disagree that Apple doesn’t care about manufacturers doing X?”

    So, are you saying you don’t think my assertion is true?

    And I wrote “No, I don’t disagree, but when Apple keeps manufacturers from doing Y it is still a problem for those manufacturers doing X, and you really ought to be able to see that.”

    Not at all. Apple really doesn’t care about the $80 Kenya phone. But after all the hints I gave, if you still can’t connect the dots about how, if Apple had their way, that phone would never have materialized, then you are either stupid or willfully ignorant.

    Then you wrote “I was only ever arguing that apple doesn’t care about manufacturers doing X, and I never made made an argument that that could happen anyway if Apple precluded manufacturers from doing Y, and you’re a big meanie-head.”

    That’s the only point I was trying to make.

    I never made an argument against this. Boy, why does every discussion with you have to escalate to accusations of stupidity? It’s a little bit puerile.

    If you make an argument, and I respond to it in its entirety, and you completely ignore the gestalt of my response and instead challenge me on whether or not I believe an assertion that is a component of that argument that I never questioned, I suppose you could think you’re being a clever debater. But that still falls under my personal categorization of “willfully ignorant,” which is why I left that as an option.

    P.S. If you’re really not stupid, then completely ignoring the conjunction that allows you to claim the mantle of willful ignorance simply proves yet another instance of willful ignorance.

    P.P.S. Willful igorance is not necessarily anything to be ashamed of. There are several things I am willfully ignorant of, and I’m proud of it.

    @Tom DeGisi:

    > Patrick did not used to do this, but he is under a lot of stress which makes him cranky.

    Hmmm, need to reexamine my stress level. I thought it was going down a bit (things are going a bit better). Maybe not enough yet. Thanks for the heads-up.

  206. Tom Says:
    > I hope you won’t deny that they *do* have a monopoly, whether it was fairly acquired or not.

    By what definition of monopoly? Certainly not what it actually means.

    In your particular reality frame, you are presumably going to agree with me that Apple has used its “monopoly” on portable music players to unfairly leverage their putative dominance in the smart phone business?

    I presume Google’s long term plan is to make lots of money from mobile ads. So are you saying having a cash stock to perform R&D to develop future revenue streams is necessarily anti-competitive?

  207. @Patrick Maupin

    If you make an argument, and I respond to it in its entirety, and you completely ignore the gestalt of my response and instead challenge me on whether or not I believe an assertion that is a component of that argument that I never questioned, I suppose you could think you’re being a clever debater.

    Sorry, maybe I *am* stupid (I am definitely *tired*, that could be it) but I honestly cannot see what it is that we are disagreeing about here. I said that Apple would not worry about a company that is only in the business of selling super cheap phones to Africans. You, I think, agreed.

    I’m not trying to pull any clever sophistry here; I am writing plainly. Maybe you could help me out and tell me what we are arguing about?

  208. Certainly. But there are plenty of phones out there that provide much cheaper communications than even that $80 android phone. I don’t think it is a priority for Kenyans to be able to play ‘Angry Birds’.

    Tom, I attempted to make a serious point. I would suggest that the snark above is not responsive … at best.

  209. @Tom:

    From my perspective, “Apple is fighting the Android handset manufacturers not because of their super low-end crap-phones, but because they also make phones that *do* compete, and compete effectively, in the markets Apple is in.” was the argument, and “Believe me, if HTC only targeted the $2-a-day Kenyan market Apple would be quite happy to leave them alone.” was merely a supporting example.

    And I don’t think that the super low-end crap-phones would have materialized without the investment that was driven by the opportunity to distribute higher-end phones to the wealthier segment of the population.

  210. @Jessica Boxer

    By what definition of monopoly? Certainly not what it actually means.

    As far as I know, a monopoly exists where one company supplies all, or close to all, of a particular product or service. Different jurisdictions have different thresholds of ‘almost all’ but I think it is generally set around 80-90%. If that is an incorrect definition please do correct me, but that is the sense in which I have been using the word.

    In your particular reality frame, you are presumably going to agree with me that Apple has used its “monopoly” on portable music players to unfairly leverage their putative dominance in the smart phone business?

    Hmm. Maybe. Not so much their monopoly in music players as their online music store. I haven’t really thought about it before but you might have something there.

    I presume Google’s long term plan is to make lots of money from mobile ads. So are you saying having a cash stock to perform R&D to develop future revenue streams is necessarily anti-competitive?

    No, I am saying that Google has used its position to disrupt genuine competition in the smartphone market by providing a free OS to handset vendors. They know they everybody else who is competing in that market has to pay for their OS. Google isn’t in the smartphone business, so it can happily drop billions of dollars into it in order to damage the chances of those who are genuinely competing. They are doing this in order to shore up their revenues in another industry.

    This is the reason that there are now so many lawsuits against Android vendors; because companies like Apple need to find some way to level the playing field. They need to make putting Android on a phone expensive.

  211. @Patrick Maupin

    From my perspective, “Apple is fighting the Android handset manufacturers not because of their super low-end crap-phones, but because they also make phones that *do* compete, and compete effectively, in the markets Apple is in.” was the argument, and “Believe me, if HTC only targeted the $2-a-day Kenyan market Apple would be quite happy to leave them alone.” was merely a supporting example.

    And I don’t think that the super low-end crap-phones would have materialized without the investment that was driven by the opportunity to distribute higher-end phones to the wealthier segment of the population.

    Right, and I agree with all that. Honestly, it’s not a trick :)

  212. @SPQR

    Tom, I attempted to make a serious point. I would suggest that the snark above is not responsive … at best.

    Sorry, I honestly didn’t mean to be snarky. I think I clarified my snarkiness previously in a reply to Tom DeGisi, but I will reprint here:

    My point was not meant to be taken literally, but rather to illustrate that there are many very cheap mobile phones out there that can do calls, texting, email, web browsing that are a lot cheaper than $80. ‘Angry Birds’ was supposed to represent all the nice bells and whistles offered by Android that aren’t essential to providing cheap communications, and thereby illustrating that Kenyans are not doomed to be cut off from communication by not having Android phones.

    It was only a few short years ago that even we in the first world did not have super smartphones like Android available to us.

  213. @Tom:

    > Right, and I agree with all that. Honestly, it’s not a trick :)

    I apologize for my part in the miscommunication. I should have asked your opinion about the other issue rather than just assuming you were attempting a misdirection.

  214. @Patrick Maupin

    I apologize for my part in the miscommunication. I should have asked your opinion about the other issue rather than just assuming you were attempting a misdirection.

    :) No problem. I think I could have been clearer; sorry about that.

  215. @Tom:

    My point was not meant to be taken literally, but rather to illustrate that there are many very cheap mobile phones out there that can do calls, texting, email, web browsing that are a lot cheaper than $80.

    BTW, that same argument about the volume market applies to this. Those cheaper phones (which, btw, won’t be much cheaper for long — soon all but the cheapest voice-only phones will be running Android) only exist because multiple competitors were fighting for a higher-end market 5-10 years ago.

    If, a decade ago, Motorola or Nokia had successfully acted as anticompetitively as Apple is now, we wouldn’t have even those phones you assert are good enough for Kenya, and Apple itself wouldn’t be able to build a smartphone. In hindsight, the world would have been much worse off if patents had been used this way a decade ago, so why is it so difficult to get agreement that when Apple uses patents this way it could negatively impact the future?

  216. Tom,

    > I apologize for my part in the miscommunication. I should have asked your opinion about the other issue rather than just assuming you were attempting a misdirection.

    See! Patrick can be the most genteel of commentors.

    You are doing pretty well yourself. Must be the influence of your first name. ;)

    Yours,
    Tom

  217. Nigel, its odd that you claim not to “get” the antipathy toward Apple, but then list the reasons in the same paragraph and claim that those are great choices. Well, obviously not everyone agrees with you that the walled garden is a great choice. Hardly a “weird passion”.

    Nor should anyone agree that a walled garden is a great choice. But hating gardeners and gleefully hoping that your neighbors walled garden catches fire and burns down because you don’t like walled gardens in my opinion is a weird passion.

  218. BTW, a small, internet connected general purpose computer which is:

    A camera.
    A video camera.
    A GPS device.
    A digital voice recorder.
    A music player.
    A video player.

    And it has a built in accelerometer so it can function as a level, among other things.

    For $80!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

    Kenyans know value when they see it.

    Yours,
    Tom

  219. Nigel,

    > But hating gardeners and gleefully hoping that your neighbors walled garden catches fire and burns down because you don’t like walled gardens in my opinion is a weird passion.

    I think it’s the bit where our neighbor works anti-competitively so the best fruit is only available in his walled garden and he wants to charge us all hundreds of dollars for a multi-year (not even lifetime) pass to get in that brings about the passion.

    Yours,
    Tom

  220. @Patrick

    And… Here’s where we vehemently disagree. Google has opensourced Dalvik. If the upstream cares, they can come and get it. And if you think that creating Dalvik was about stiffing Sun or that it didn’t take some money and effort to create it, you’re really not paying attention.

    Creating Dalvik was partially stiffing Sun and partially needing to control their own destiny. I probably shouldn’t have used the term upstream as the situation was that Sun gave away everything EXCEPT for mobile revenues. They couldn’t care less about you creating new code…they wanted the revenue stream.

    Rather than respecting that and building their own infrastructure Google simply decided to screw over the original creator. Whatever it cost to develop Android, it would have cost a lot more to develop without leveraging all the work that Sun already did. In my opinion they made the decision that it was too inconvenient to do the right thing and choose not to.

    That’s fine, but it renders any protestations that they try not to be evil hollow.

  221. @Patrick

    If, a decade ago, Motorola or Nokia had successfully acted as anticompetitively as Apple is now, we wouldn’t have even those phones you assert are good enough for Kenya, and Apple itself wouldn’t be able to build a smartphone. In hindsight, the world would have been much worse off if patents had been used this way a decade ago, so why is it so difficult to get agreement that when Apple uses patents this way it could negatively impact the future?

    Well, it could. But you’ve got to ask yourself why Apple is behaving this way. They’ve never been anywhere near this litigious in the past. Yes, they have sued here and there, but nothing like the full frontal onslaught against Android we are seeing now.

    I have touched on this before, but let me elaborate. I am not making excuses for Apple here, but I am just trying to explain how I see their thinking. Some of this is speculation, but I think it makes sense.

    Apple is *pissed*. Back when Eric Schmidt was on the board, and before Google released Android, everything was happy between Apple and Google. It was a great partnership. Then Google saw what Apple was doing with the iPhone, and immediately recognised the threat that this new sort of mobile phone was to Google’s main revenue stream.

    Google drops Android on the market. A free, open-source, smartphone operating system that is a direct threat to the iPhone. Handset makers everywhere now have a leg up on Apple because they don’t have to absorb the millions of dollars of R&D and the years of effort it took Apple to create their OS. Google dumps this on to the market, knowing full well that it is going to unfairly hinder Apple’s new iPhone.

    I will now make a somewhat tenuous analogy.

    Imagine if a popcorn maker (who had made billions from a monopoly on selling popcorn in movie theatres) saw that home theatre systems were damaging cinema attendance, and therefore popcorn revenues, and that in response to this they bought a movie studio and started distributing their films to cinemas for free. Then imagine that the CEO of the popcorn company had been pals with the leading home theatre company, and had been on his board, and had never told him anything about his plans.

    So, Apple views Android as unfair. HTC and all the other guys have a free, first class smartphone OS that allows them to compete with Apple, where they never would have been able to before. So, Apple is angry about this and looking to level the playing field and seek revenge. Therefore they lawyer up and start going after Android handset makers with everything they’ve got.

    It’s not pretty, and it’s not cricket, but you have to understand that Apple is not the only company in this game that is acting anti-competitively and dishonestly. They were provoked.

  222. @jessica

    However, I won’t do business with them (and I sold their stock) for two reasons:

    1. They became a patent troll.
    2. They are set to destroy the freedom of software developers by requiring approval of your apps before you can install them.

    1. They aren’t a patent troll as they actually implement stuff. Stuff they are defending from copying. Folks here like to claim that Apple isn’t innovating. Yah, whatever. Like 2007 was that long ago and the iPad has been around forever.

    2. Developers are happier with Apple than Android AND that freedom still exists anyway. Apple doesn’t go particularly out of its way to kill jailbreaking nor go out of their way to kill Cydia. Yah, they’ll fix security problems that are used to jailbreak but they could really up the annoyance.

    On this latter point, for sure, they have every right to do that, but that doesn’t mean I don’t think it is deeply destructive, and something I will resist vehemently. All you Apple fanboyz hated Bill Gates, but he was never so tyrannical as to demand complete control of everything you put on your windows box.

    So in summary, why do F/OSS and Windows people (like me) hate Apple? Because they are evil patent trolls, and tyrannical oppressors out to destroy our freedom to develop and deploy software. However, as evil tyrants go, one has to admit that the trains actually do run on time on iOS.

    I’m an Apple fanboy in as much as I like and use Apple products. Never hated Microsoft and in fact used to do a lot of C# development and liked it.

    For all the protestations of fighting for the rights of developers very very few F/OSS proponents acknowledge that Microsoft does a wonderful job of supporting their developers with great tools, good documentation and stable SDKs (mostly) and the ability to make money doing what we love doing.

    Same for Apple…less so for XCode, but triply so for their app stores.

  223. >What you would actually be arguing is ‘Apple unfairly used the patent system therefore they might at any time cripple your phone for nefarious purposes’.

    No, I’d be arguing that Apple has a pattern of evil behavior that includes anticompetitive use of junk patents. Attempting to monopolize critical software infrastructure with closed source is evil in itself; it puts everyone (not just poor Kenyans) at the wrong end of a power relationship in which, over time, the demands of the party with power will become harsher and more arbitrary.

    >they have clearly abused their advertising profits to undercut another industry in which they are not directly trying to compete in order to maintain their search monopoly.

    There is no Google search monopoly. I can think of half a dozen competing search engines without trying; they’re all just a click or two away, and Google has done nothing to attack them. By contrast, if Apple had a “search monopoly”, I have no doubt it would be launching look-and-feel lawsuits against other engines. (See “evil”, above.)

    Furthermore, it is not “undercutting” the smartphone industry when you make it easier and less expensive for new entrants to create smartphones than it was before, and lots of companies respond by doing so. Because Android is free, more customers are being served at lower prices and more profit is being made – by everyone except rent-seekers, anyway. If this be “undercutting”, let’s have more of it.

  224. @Tom

    Google isn’t in the smartphone business, so it can happily drop billions of dollars into it in order to damage the chances of those who are genuinely competing.

    So Android isn’t “genuine” competition? This is the same logic that open source software is bad for the economy because it disrupts for-profit software.

    They need to make putting Android on a phone expensive.

    Exactly. And if they succeed it’s a net loss for consumers, and the economy in general.

    @Nigel

    I probably shouldn’t have used the term upstream as the situation was that Sun gave away everything EXCEPT for mobile revenues. They couldn’t care less about you creating new code…they wanted the revenue stream.

    Which is exactly as relevant as me wanting a Tesla Roadster. A company’s preferred business model imposes no moral obligations on anyone else. If you deny this, it quickly leads to “going to the bathroom during commercials is stealing”.

  225. >Google dumps this on to the market, knowing full well that it is going to unfairly hinder Apple’s new iPhone.

    That’s correct, except for the “unfairly”. It’s not anti-competitive when you make competition easier; you can’t make that asymmetry go away, no matter how hard you try.

  226. >No, I am saying that Google has used its position to disrupt genuine competition in the smartphone market by providing a free OS to handset vendors.

    Android does not “disrupt genuine competition”, it promotes more competition by making it difficult for anyone to collect secrecy rent. This is Econ 101 material, silly person.

  227. # Tom Says:
    >As far as I know, a monopoly exists where one company supplies all, or close to all, of a particular product or service.

    According to ComScore Google is hitting 65%. Even by your loose standards that is nothing like a monopoly.

    > They are doing this in order to shore up their revenues in another industry.

    How does Android shore up their desktop advertising business?

    > This is the reason that there are now so many lawsuits against Android vendors; because companies like Apple need to find some way to level the playing field. They need to make putting Android on a phone expensive.

    There are different ways of paying for things. Google doesn’t charge you anything to search their massive database. They give it to your for free, and make money on a back channel. LexusNexis doesn’t do that. They charge you to search their database. Would you be OK with LexusNexis destroyed the free search model by using bogus patents against Google too?

    Roxio makes a freaking fortune with a silly game on Android. I have it on my phone. It didn’t cost me a penny. Should other game makers, who charge money, be able to cripple Angry Birds with bogus patents to “level the playing field.”

    Red Hat makes great money with a free OS, and then make money on a back channel. Should Microsoft use bogus patents against them to put an end to that whole free software nonsense?

    The bottom line is that regardless of the putative rightness of and outcome one acheives, using unethical means to achieve that outcome remains unethical. Check out recent events in London. The supposedly downtrodden taking what is theirs from “the man.” Fortunately, their tactics are actually against the law. Unfortunately, patent trolls like Apple stay within the law, in fact use the law for their own unethical actions.

  228. @Tom

    I think it’s the bit where our neighbor works anti-competitively so the best fruit is only available in his walled garden and he wants to charge us all hundreds of dollars for a multi-year (not even lifetime) pass to get in that brings about the passion.

    Sometimes the best fruit only thrive in a walled garden and given that the walled garden costs money to make you can either do without or grow a variety of fruit suitable for the wild.

    Of course, analogies break down at some point but you get the gist. If the best apps appear inside the AppStore it’s because app developers are seeing the most benefit to being there. Even then, they will do a port to another platform if the economics warrant it.

  229. @Tom:

    I think it’s the bit where our neighbor works anti-competitively so the best fruit is only available in his walled garden and he wants to charge us all hundreds of dollars for a multi-year (not even lifetime) pass to get in that brings about the passion.

    Sometimes the best fruit only thrive in a walled garden and given that the walled garden costs money to make you can either do without or grow a variety of fruit suitable for the wild.

    I could be wrong, but I think Mr. DeGisi’s “best fruit” is the smartphone itself, not the apps. The complaint is not about the careful cultivation within the walls; rather it is about the indiscriminate spraying of Agent Orange outside the walls.

  230. Tom DeGisi wrote: “As far as I know, a monopoly exists where one company supplies all, or close to all, of a particular product or service. Different jurisdictions have different thresholds of ‘almost all’ but I think it is generally set around 80-90%.”

    There’s actually a legal definition of this, courtesy of Judge Learned Hand’s decision in the Alcoa antitrust case many years ago. It’s called the “30/60/90 rule”.

    If you have 30% market share, you are not a monopoly.
    If you have 60% market share, you may be a monopoly depending on other factors.
    If you have 90% market share, you are a monopoly.

    http://law-career.blogspot.com/2007/01/barbri-lawsuit.html

    We may agree or disagree with the logic behind this ruling, but it’s the case law that is still operative in the U.S. today. Note that it is perfectly legal to have a monopoly under U.S. law; however, there are certain actions that a business is not allowed to undertake that would be legal if it were not a monopoly.

  231. @esr

    Android does not “disrupt genuine competition”, it promotes more competition by making it difficult for anyone to collect secrecy rent. This is Econ 101 material, silly person.

    It makes competition easier for everybody willing to put Android on their handsets, yes. By dumping a free OS onto the market Google has essentially forced every new entrant to use *their* OS or risk almost certain failure because they are saddled with a long and expensive development process.

    Google has made it a near certainty that any company who tries to develop a new system at this point in the game will fail. Look at WebOS and the Microsoft thing. They are actually good systems, but they can't get traction because Android has made it an impossibility to compete, not because Android is such a great system, but because its handset manufacturers have a huge and unearned advantage over everybody else who develops their own software.

    *That* is why is it anti-competitive.

  232. >I presume Google’s long term plan is to make lots of money from mobile ads. So are you saying having a
    >cash stock to perform R&D to develop future revenue streams is necessarily anti-competitive?

    I imagine that he’s using the same argument that the DOJ used against Microsoft all those years ago. Part of that argument was that Microsoft leveraged it’s monopoly (bearing in mind they did have competitors at the time, as Google does now) to develop and then dump Internet Explorer on the market for free. It’s not a very good argument (and not one I thought was good against Microsoft either) but certainly if using dominant positions to dump a product onto the market and disrupt competition is a bad thing, Google with Android is far more guilty of that than Apple with the iPhone is.

  233. nvm, forgot to refresh the window, so that’s all been addressed and I’m late to the party again.

  234. Nigel,

    The anti-competitive part is where the gardener uses patent law to make sure no one else can have a garden. Your inability to understand the passion is because you aren’t doing a good job of making your analogies fit the concerns of the passionate.

    Yours,
    Tom

  235. “It makes competition easier for everybody willing to put Android on their handsets, yes. By dumping a free OS onto the market Google has essentially forced every new entrant to use *their* OS or risk almost certain failure because they are saddled with a long and expensive development process.

    “Google has made it a near certainty that any company who tries to develop a new system at this point in the game will fail. Look at WebOS and the Microsoft thing. They are actually good systems, but they can’t get traction because Android has made it an impossibility to compete, not because Android is such a great system, but because its handset manufacturers have a huge and unearned advantage over everybody else who develops their own software.

    “*That* is why is it anti-competitive.”

    OK, let’s rewrite that with a few small word changes, and see where it takes us.

    “It makes competition easier for everybody willing to put Linux on their desktops and laptops, yes. By dumping a free OS onto the market Linux has essentially forced every new entrant to use *their* OS or risk almost certain failure because they are saddled with a long and expensive development process.

    “Linux has made it a near certainty that any company who tries to develop a new system at this point in the game will fail… They are actually good systems, but they can’t get traction because Linux has made it an impossibility to compete, not because Linux is such a great system, but because its handset manufacturers have a huge and unearned advantage over everybody else who develops their own software.

    “*That* is why is it anti-competitive.”

    Needless to say, I don’t believe this is the case. It’s not anti-competitive to release an open system that any future competitor can take, build on, and release.

  236. Regarding Google as a monopoly:

    “Having prosecuted the Microsoft case, its seems to me that Google, as a monopoly, is engaging in the same tactics to keep its dominant position as Microsoft was engaging in,” Miller says. “Those are the same tactics that got Microsoft in trouble.”

    http://money.cnn.com/2011/03/31/technology/microsoft_google_antitrust_case/index.htm

    Just an opinion of course, but coming from the guy that prosecuted MSFT it carries some weight.

    Google often hits 70% individual share on Hitwise and sometimes Comscore. When you add in outsourced search from Ask, MySpace, Ebay, etc they usually hit 70% total share. In Europe they command around 90%.

    http://www.precursorblog.com/content/why-googles-search-ad-monopoly-understated

    Google has 97% share in mobile search.

    http://news.accuracast.com/mobile-7471/is-googles-mobile-paid-search-monopoly-a-good-thing/

    Fortune stated that worldwide Google had 90% share and Yahoo/Bing barely 1%.

    Folks arguing that Google doesn’t have search market dominance (aka monopoly) is interesting.

  237. @Tom

    By dumping a free OS onto the market Google has essentially forced every new entrant to use *their* OS
    [ ...]
    *That* is why is it anti-competitive.

    That’s not anti-competitive.
    Building Android, reusing existing source, is just a smart way of building an OS. So Google made a smart business move.
    Any other manufacturer can do the same.
    Even more, they can just take Android and reuse/modify/build on that, taking advantage of the development done by Google.

    If they choose to do (and pay for) their own separate development, that’s by their own business decisions. They should know what’s best. If they choose to let Google have a competitive advantage, that’s not Google being anti-competitive.

  238. “Having prosecuted the Microsoft case, its seems to me that Google, as a monopoly, is engaging in the same tactics to keep its dominant position as Microsoft was engaging in,” Miller says. “Those are the same tactics that got Microsoft in trouble.”

    The man who prosecuted the Microsoft case is more evil than either Apple or Microsoft or Sun or Oracle.

    Yours,
    Tom

  239. Tom DeGisi,

    Sorry about that — wrote it in a hurry between doing real work.

  240. @Tom “The anti-competitive part is where the gardener uses patent law to make sure no one else can have a garden. Your inability to understand the passion is because you aren’t doing a good job of making your analogies fit the concerns of the passionate.”

    Apple isn’t stopping folks from making a garden. They’re trying to keep folks from stealing the varieties they’ve developed to make their garden unique to use in competitive gardens. Create different UI metaphors like WP7 and designs unlike direct copying as in Samsung for your own gardens.

    Again, Apple doesn’t want to have a monopoly on smartphones. They never would have commanded more than 25% of the market anyway because they don’t make cheap phones. So the whole argument based on “making sure no one else can have a garden” is a fallacy.

  241. @tmoney:

    I imagine that he’s using the same argument that the DOJ used against Microsoft all those years ago.

    The DOJ missed the forest for the trees. The whole problem of Microsoft misusing its monopoly could have been stopped if the DOJ (a) kept Microsoft from deliberately changing things to break third party programs (DRDOS, WordPerfect); and (b) kept Microsoft from employing abusive reseller agreements that were based, not on how many Microsoft products were sold, but rather how many competitive products weren’t sold.

    The DOJ realized that things weren’t right, but wasn’t smart enough to dig through to the root cause, and not quick enough to save the earliest casualties of Microsoft’s scorched earth policies, so they were grasping at straws trying to save competitors that weren’t yet dead, but seemed almost mortally wounded at the time. Nonetheless, the comparison between what Microsoft did with IE and what google does with Android is inapt — Microsoft was destroying competition by tying one product to another product, and tying can certainly be illegal if done by a monopolist. The friction of downloading another browser is one thing, the integration of the browser into the OS, and having the OS keep changing your preferences back to IE is another. For web-based properties, that sort of tying is much more difficult to achieve.

    if using dominant positions to dump a product onto the market and disrupt competition is a bad thing, Google with Android is far more guilty of that than Apple with the iPhone is.

    Ummm, who claimed Apple had a monopoly?

  242. @Cathy

    Needless to say, I don’t believe this is the case. It’s not anti-competitive to release an open system that any future competitor can take, build on, and release.

    It’s a flawed analogy for a number of reasons, but mainly because Linux was never (it may just now be getting there) a viable consumer-facing OS. For most people Linux was unusable as a desktop system both because of the quality of the UI, and because of how entrenched Windows already was at the time Linux was released.

    In the case of Android there is a multi-billion dollar giant doing all the development work, doing bug and security support, and regulating how the system is deployed. What is more, they released the system to directly benefit their existing business. None of this was true for Linux.

  243. @Nigel:

    They’re trying to keep folks from stealing the varieties they’ve developed to make their garden unique to use in competitive gardens. Create different UI metaphors like WP7 and designs unlike direct copying as in Samsung for your own gardens.

    Nobody’s sneaking into Apple’s gardens and stealing the roses. They’re simply saying “Oh, look — Apple made a pink rose, and the customers seem to like it. I bet if I mate a red rose and a white one, I can create a pink one, too.”

  244. I imagine that he’s using the same argument that the DOJ used against Microsoft all those years ago. Part of that argument was that Microsoft leveraged it’s monopoly (bearing in mind they did have competitors at the time, as Google does now) to develop and then dump Internet Explorer on the market for free. It’s not a very good argument (and not one I thought was good against Microsoft either) but certainly if using dominant positions to dump a product onto the market and disrupt competition is a bad thing, Google with Android is far more guilty of that than Apple with the iPhone is.

    The monopolu case concerning IE went something like this :
    MS’s was using its Windows monopoly to create a web browser monopoly (with IE) that would enable it to create a server monopoly (if your server can’t talk to IE, it’s useless => since MS controls IE, it would control servers and network protocols). So this is, arguably, a case of using one monopoly to create another.

    If you want to parallel this to Google, you have to explain how exactly Google is using its web search monopoly to establish an other monopoly. I’m not seeing it.

  245. @Patrick the basis of the design patent suits against Samsung are exactly about folks stealing roses from Apple’s gardens. The argument is that Apple wants no other gardens to exist. This is clearly false. They just want them to look different and not use UI interaction metaphors designed by Apple.

  246. @kn

    If you want to parallel this to Google, you have to explain how exactly Google is using its web search monopoly to establish an other monopoly.

    That’s not it, and the IE analogy is imperfect. Google is effectively paying for everybody else’s R&D and ongoing support costs so that they can:

    1) Make it extremely difficult to compete in the market unless you use Android.
    2) Once Android domination is achieved (not too far off) use its power over handset makers to ensure that its existing advertising-supported services continue to be well used.

  247. @Nigel:

    > The basis of the design patent suits against Samsung are exactly about folks stealing roses from Apple’s gardens.

    No they’re not. They’re functional patents masquerading as design patents. The screen is black so you don’t get glare. The outside is aluminum because it’s strong and lightweight. The corners are rounded so it doesn’t hurt or snag on the sofa. The aspect ratio is some reasonable compromise between ease of holding it, watching widescreen movies, and reading books.

    http://ina.tamu.edu/images/Uluburun/miscellaneous/Kw4376.jpg

    http://www.photo.rmn.fr/LowRes2/TR1/40E9CA/89-003720.jpg

    http://www.billcasselman.com/tablet_and_stylus.jpg

    http://www.wakefield.gov.uk/NR/rdonlyres/FCE5E7CA-A0A1-4732-8650-89F190678A83/0/WritingSlateAround1900.jpg

    http://upload.wikimedia.org/wikipedia/commons/e/e8/Schiefertafelmitschwamm.jpg

    http://www.reghardware.com/2011/02/07/apple_ipad_tomorrow_people/print.html

    http://video.google.com/videoplay?docid=9140399149118885327

    http://www.google.com/patents?id=T4IkAAAAEBAJ&printsec=abstract&zoom=4&source=gbs_overview_r&cad=0

    http://lowendmac.com/ed/fox/11ff/tablets/ipad-trade-dress.jpg

  248. @cathy “Needless to say, I don’t believe this is the case. It’s not anti-competitive to release an open system that any future competitor can take, build on, and release.”

    Ah well…you do realize that IBM wasn’t dumping valuable intellectual property and developer hours into Linux out of the goodness of their hearts right? They did so to kill Sun’s Solaris revenues because Solaris was beating AIX anyway. Then big blue could make more money off the unix market from hardware and services even if the total unix market declined because it could beat Sun in those markets. They could afford to see this, in part, from their mainframe monopoly.

    The end result of Linux is a commoditized unix server market (at least at the low end). Is that “more competitive”? On price perhaps. It doesn’t strike me as the kind of competition that spurs innovation.

  249. @Tom

    That’s not it, and the IE analogy is imperfect. Google is effectively paying for everybody else’s R&D and ongoing support costs so that they can:

    1) Make it extremely difficult to compete in the market unless you use Android.
    2) Once Android domination is achieved (not too far off) use its power over handset makers to ensure that its existing advertising-supported services continue to be well used.

    So we agree this is completely different from MS’s bundling of Windows and IE. Good.

    But if you mean that it’s just a different type of monopoly abuse, I still maintain that what Google does is making clever business decisions, not abuse of monopoly – see my earlier post about that.

  250. @Patrick They have the patents which you can try to have invalidated via your image examples if you like.

    That Samsung is trying to copy Apple is clear.

    http://static6.businessinsider.com/image/4e1757c8cadcbbea4e1e0000/samsung-copying-iphone-recording-app.jpg

    http://t3.gstatic.com/images?q=tbn:ANd9GcRRYjLu_j2sVWFcrBT4oI3GocperUFQItgBrtTZWA9O4Z3aPUu4

    http://solariasun.com/wp-content/uploads/2011/04/Samsung-Galaxy-iPhone-copy.jpg

    http://www.geekwithlaptop.com/wp-content/uploads/2011/05/samsung-socket-copy-apple.jpg

    http://cdn.slashgear.com/wp-content/uploads/2011/07/samsung-smart-case-for-galaxy-tab-image-001-580×406.jpg

    Come on.

    (Yes, the smart cover copy was 3rd party but was certified accessory of Samsung)

    I’m starting to believe that discussing things with you is pointless. Even relatively minor points have to be argued to death. Google doesn’t have a search monopoly. Samsung isn’t trying to copy Apple. The sky is blue.

    Give me a break.

  251. This is the reason that there are now so many lawsuits against Android vendors; because companies like Apple need to find some way to level the playing field. They need to make putting Android on a phone expensive.

    A “level” playing field requires an expensive operating system. What a very bizarre concept, Tom. A “huge and unearned advantage” … all of a sudden its monopolistic behavior to reduce the cost of entry to a market. Even more bizarre concepts.

    Frankly, Tom, I see a rather huge logic fail on your part.

  252. @Nigel:

    > [Linux] doesn’t strike me as the kind of competition that spurs innovation.

    You’re joking, right?

  253. Let’s play with this. If Standard Oil had put out free oil well drilling equipment to the market, would that have created a monopoly in oil distribution? Uh, nope.

  254. @Tom:

    2) Once Android domination is achieved (not too far off) use its power over handset makers to ensure that its existing advertising-supported services continue to be well used.

    What power over handset manufacturers? Google’s whole reason to develop Android was that they sensed (correctly) that carriers (and then, later, Apple) needed to be disintermediated.

    Android allows manufacturers to sell stuff to customers that allows them to download anything they want (from google’s store or otherwise, unlike Apple) and connect to anywhere on the net (unlike some previous carrier efforts). Oh, and btw, if the carrier/handset maker do a few compatibility things, they might be able to advertise their phone as compatible and have it hook into google’s store, and maybe even share a bit of revenue. But those are not required to make/use/sell Android.

  255. Nigel,

    > I’m starting to believe that discussing things with you is pointless. Even relatively minor points have to be argued to death. Google doesn’t have a search monopoly. Samsung isn’t trying to copy Apple. The sky is blue.

    That’s what you get when you argue from analogy and you repeatedly over-generalize, and most importantly, you don’t try to understand your opponents without simultaneously arguing with them. Either try to figure out what we are complaining about (which is what you said you wanted to do) or try to argue for your position (which is what you are doing). Trying to do both at the same time is not going to work.

    Trying to explain your position and not arguing your position, however is impossible. If you really want us to explain our position you will have to tolerate what sounds like argument.

    Yours,
    Tom

  256. @Nigel:

    > Doh…I meant trade dress not patent. now I’m getting sloppy too.

    Doesn’t matter. Trade dress == design patent. Applying such to a functional UI element is plain wrong. If it’s functional and it’s different enough to be non-obvious then it’s eligible for a functional patent. If it’s some weird-ass signature flourish that would get tiring after a time, then it’s probably eligible for a design patent, but if it’s useful then it’s not.

    So, either Apple screwed up by not getting a functional patent on it, or Apple couldn’t get a functional patent on it because it’s obvious.

  257. @Nigel:

    > Give me a break.

    Where do you want to be broken?

    Did you even look at the Korean picture frame/DVD player that Apple copied?

    Do you really believe that showing a picture of a microphone when you want to record is original in 2010 or 2011?

  258. @Nigel:

    > They have the patents which you can try to have invalidated via your image examples if you like.

    Ah, so you think it’s OK and not at all evil to abuse a broken patent system. Got it.

  259. @Patrick Maupin

    What power over handset manufacturers?

    I’ll let you answer your own question:

    Oh, and btw, if the carrier/handset maker do a few compatibility things, they might be able to advertise their phone as compatible and have it hook into google’s store, and maybe even share a bit of revenue. But those are not required to make/use/sell Android.

    Exactly. Unless you comply with Google’s demands you don’t get to say your phone is Android compatible, you don’t get to use the app store (huge), you don’t get the rev share, and (correct me if I am wrong here) you don’t get to use the Android trademark or use the google service apps (again, correct me if I am wrong on these details).

    That is one of the major ways google maintains control over the platform. These things combined are enough to make sure that most vendors will do Google’s bidding. It doesn’t take much because complying with Google isn’t much of a hardship for them anyway.

    Now, I am going to try another analogy, because I can see I am not convincing anybody here.

    Imagine if Apple just wanted Google gone. They’ve had enough of Android and they want to just take Google out of the picture to they can sell more phones.

    They decide to go after their core business, and make a search engine. It’s as good, or close to as good, as Google (I know people are going to tell me Apple could never achieve this, but that is irrelevant for the purposes of this analogy). Now imagine that they do the following:

    1) give away all the source code
    2) make the database of pages freely open to an API through which anybody could access it and reproduce the content any way they like
    3) provide a web interface to the search engine that *has no ads*

    Who thinks Google might be a bit pissed off and claim this is anti-competitive?

    Now, you could argue that Apple just wouldn’t take much of their traffic because Google is so entrenched, and has so much name recognition. You might be right.

    Let’s make the analogy a little more perfect. Imagine that instead of making money through ads, Google actually charges for access to its search engine. I know that’s not the case, but it makes the analogy more apt. People are less put off by ads than they are by having to pay money, so this makes the analogy fairer.

    Now I think you would have to admit that Google would be in serious trouble.

    Who thinks that would be anti-competitive?

    I do.

  260. I really cannot argue with Tom No-Last-Name that giving away Android is anti-competitive. It is. It may not be intended to be anti-competitive, but it is. Consider dumping. Now, I don’t believe that dumping really exists. However, when a big company, under some duress, slashes its prices to clear it’s inventory, it looks like dumping, even though it isn’t. It also tends to crush smaller businesses that cannot handle the lower prices. That’s anti-competitive. Dramatically undercutting everyone’s prices, for whatever reason, makes it much, much harder for everyone else to compete. Isn’t that the way open source is supposed to win? And by win, don’t people mean that companies which use a closed-source business model go out of business? Sounds like it decreases competition to me.

    Yours,
    Tom

  261. >Sounds like it decreases competition to me.

    An economist would disagree with you. There’s a definitional issue about how you measure intensity of competition, but markets dominated by rent-seekers and information asymmetry (in this case, closed-source software) tend to be less competitive and dominated by a handful of large players.

    An economist would also point out that the reason we judge “more competition” is better is because competitive pressure drives increases in efficiency (units of output per units of input). When Android makes it difficult for Apple or anyone to charge secrecy rent, deadweight losses and information asymmetry go down; efficiency goes up. It’s a win for everyone, buyer and seller, except for the rent-seeker. The same argument applies to open source in general.

  262. esr,

    OK, I really could not argue with Tom No-Last-Name that giving away Android is anti-competitive. But you can. And next time, if memory serves, maybe I can too.

    Yours,
    Tom

  263. @esr

    Can you explain the following terms?

    - secrecy rent
    - rent seeker
    - information asymmetry

    I think you are making the argument that Android has let to more hardware competition. And you might be right. But it has led to much *less* competition in system software, which is at least as, and arguably *more*, important. Right now the OS space for smartphones *is* dominated by a few large players, and nobody else can get into that market because Android has deliberately put unfair price pressure on anybody who tries. Anybody entering the smartphone business today has no choice but to adopt Android.

  264. @Tom:

    This is a huge misunderstanding of “anti-competitive.”

    Anti-competitive does not mean competing hard. It means competing in ways that are unfair. What’s unfair? Well, it’s just like in sports where the rules develop over time. The rules get codified into law. The rules have been developed based on observation and (as esr points out) informed economic and game theory reasoning.

    Why is selling below cost to drive your competitor out of business unfair? Because history shows that the only reasons companies do that is so they can raise prices later (which screws the consumer).

    Why is continually changing the default undocumented file format that documents are saved in unfair? Because you are working really hard to insure that the data can only ever be opened and displayed properly by your own app. You are holding your customers’ data hostage.

    Why is giving away source code with a liberal license not unfair? Because you are enabling as many people as want to compete, not keeping people from competing. (Which, btw, Apple fully takes advantage of when it suits them — Mach kernel, bsd, CUPS (which they liked so much they bought), WebKit, etc.)

    So, when I say anti-competitive, I mean anti-competitive. When you say anti-competitive, you seem to mean that google’s competing too well, not competing unfairly.

  265. @Tom:

    Rent seeking is defined here: http://en.wikipedia.org/wiki/Rent-seeking

    Secrecy rent is simply rent seeking behavior that is enabled by information asymmetry, e.g. keeping secrets.

    Closed source software is a secret. The “upgrade treadmill” where the vendor can charge $50 for $2 worth of improvements only works because the customer base can’t contract with someone else to upgrade the software.

    > I think you are making the argument that Android has let to more hardware competition.

    No, that’s not it. Android has led to more software competition. So has bsd, btw — we wouldn’t have OSX or iOS without it.

  266. @Tom:

    What power over handset manufacturers?

    I’ll let you answer your own question:

    Oh, and btw, if the carrier/handset maker do a few compatibility things, they might be able to advertise their phone as compatible and have it hook into google’s store, and maybe even share a bit of revenue. But those are not required to make/use/sell Android.

    Exactly. Unless you comply with Google’s demands you don’t get to say your phone is Android compatible

    I don’t think google can legally stop you from saying this if it’s true, and I don’t think they’re evil enough to try.

    So companies shouldn’t have any control over the use of their own trademarks?

    you don’t get to use the app store (huge)

    That’s really a separate issue from Android itself. Some companies actually don’t want the app store (B&N, for example). The interesting thing is, unlike Apple, google has set it up where if they abuse this app store thing too much, others can easily jump in and offer competing app stores. Amazon is already doing this.

    you don’t get the rev share

    Ah, yes, the revenue share. This is also independent of Android. I’m sure google would be quite happy to share revenue for phones using other OSes, just as they share revenue for, e.g. Mozilla. Google doesn’t mind sharing revenue with companies that help send it business.

    , and (correct me if I am wrong here) you don’t get to use the Android trademark

    This is absolutely correct, and the fact that you bring it up as an issue indicates that you have zero understanding of trademark law.

    or use the google service apps

    Ah, so if google gives away a little software, they have to give it all away? Maybe you could convince Oracle this is how the world works. Google would actually appreciate that.

    (again, correct me if I am wrong on these details).

    Well, three out of four on the facts is a passing grade most places, but the analysis that translates these facts is sorely lacking.

  267. @Patrick

    “In economics, rent-seeking is an attempt to derive economic rent by manipulating the social or political environment in which economic activities occur, rather than by adding value.”

    I can’t see how Apple’s behaviour meets this definition. You’re arguing that Apple doesn’t add value by developing iOS? That they somehow derive profit in excess of what they should be?

    [Scheduling note: I have to step away for a while, but don't worry, I'm not running away!]

  268. Tom,

    > I can’t see how Apple’s behaviour meets this definition.

    I think I can handle this one. Apple’s behaviour in this case depends on trade dress, copyrights and patents. All of these are government granted monopolies. If Apple is trying to get the government to apply trade dress, copyrights and patents more broadly than the government should so Apple can benefit from the government granted monopolies, than they are rent-seeking.

    At this point we can argue about whether Apple is trying to do this. Lacking mind reading devices, this argument could last awhile. We can also argue about whether the government is applying trade dress, copyrights and patents more broadly than it should. I think you, me and definitely Jessica Boxer think that the government is applying patents more broadly than it should.

    Yours,
    Tom

  269. Meanwhile, Apple forbids anyone from selling apps through its store to its customers that sell products via some link and don’t kick Apple 30% … but its Google abusing some mythical “monopoly” …

  270. @Tom:

    That definition at wikipedia has been edited a lot recently, probably by extremely interested parties who don’t want others to know what they are up to (edit by IP address, no discussion, for example). Here’s an example edit:

    http://en.wikipedia.org/w/index.php?title=Rent-seeking&action=historysubmit&diff=417977651&oldid=415673881

    Note that it used to include “exploit,” as in, once a law has been passed that favors one class of entities, entities in that class are now free to exploit that law.

    I think Apple has significantly exploited the current legal climate even if they didn’t create it themselves. Having to buy apps from Apple is like having to buy gas from Ford. Fortunately, we no longer have to buy apps from Apple, if we don’t mind warranty voiding modifications to the engine. Of course, Apple tried their best to make those modifications illegal:

    http://www.copyright.gov/1201/2008/responses/apple-inc-31.pdf

    I don’t have evidence handy that they were particularly instrumental in gaining some of the protections that they enjoy, but they have worked hard to try to maintain them. Also, I think there is no question that laws are made by courts sometimes these days, and Apple has worked very hard indeed to eviscerate first-sale protection through the courts.

    Historically, courts frowned on “tying”. They are much more lenient on it these days, but the idea is, if you sell vacuum cleaners, you can’t force customers to buy bags from you; if you sell printers, you can’t force customers to buy toner from you; if you sell hardware, you can’t force customers to buy software from you.

    If anything can bring back teeth to tying laws (somewhat doubtful), it will be Apple’s abuse of its app store. But it may be that this is no longer necessary — that a larger part of google’s success than is generally recognized is the market’s reaction to this abuse.

  271. >Android has led to more software competition.

    That’s correct. The normal effect of open source software taking over a layer in an application stack is that the level immediately above it becomes a hugely more valuable investment target, so you get lots more competition there.

  272. >Secrecy rent is simply rent seeking behavior that is enabled by information asymmetry, e.g. keeping secrets.

    That is correct. To be fair, I may have invented “secrecy rent” as a term of art in my work. However, I have yet to run into an economist who doesn’t unpack and appreciate it instantaneously.

  273. # SPQR Says:
    > Apple forbids anyone from selling apps … [when they] … don’t kick Apple 30%

    Our Roman friend reminds me of a point I meant to make: in the 90s everyone bitched about the “Microsoft tax”. Yet here we have what is pretty much literally a tax run by he patent troll of Cupertino. All the fanboyz are apparently cool with that. Even proposals to replace the Federal Income Tax with a national retail sales tax only wanna charge you 25%!

    What is Apple’s response? Love it or leave it.

    (BTW, before you tell me Google charges too please find out the difference is between a service charge and a tax.)

    However, as I said before, at least with iOS, the trains actually do run on time.

  274. To be fair, I may have invented “secrecy rent” as a term of art in my work. However, I have yet to run into an economist who doesn’t unpack and appreciate it instantaneously.

    “A monopoly granted either to an individual or to a trading company has the same effect as a secret in trade or manufactures.” — Adam Smith, “Wealth of Nations”, 1776

  275. @fake account:

    Eric didn’t say he invented the concept — he said he may have invented the term.

    Which, given that the term “rent-seeking” itself apparently wasn’t invented until approximately two centuries after Adam Smith made that comment, is highly plausible.

    In any case, it was an apology, not a brag.

  276. Pingback: Doc Searls Weblog · Google buys Motorola and its giant patent portfolio

  277. @patrick

    Doesn’t matter. Trade dress == design patent. Applying such to a functional UI element is plain wrong. If it’s functional and it’s different enough to be non-obvious then it’s eligible for a functional patent. If it’s some weird-ass signature flourish that would get tiring after a time, then it’s probably eligible for a design patent, but if it’s useful then it’s not.

    Except that it isn’t. Trade dress is a specific element that protects against someone using enough design cues to trigger consumer recognition. Apple has won these before against Daewoo and eMachines over the iMac design.

    These aren’t functional patents OR design patents. These are protections on design styles for a brand. The items you listed are combined together to form a specific design style that is identifiable as an iPhone. Samsung replicated these elements down to the packaging of the Galaxy S to resemble the iPhone. You can use any one of these elements, you can probably even use all of them (rounded corners, etc) in some other manner that is unique to your design style. You can’t use them in a way to make your product look like an iPhone without being called out on Trade Dress.

    The examples I provided show how FAR Samsung has gone in the effort to replicate the iPhone design elements down to app design, icon choices, etc. Sure a microphone is an obvious thing to include on a recording UI but with the same layout and general style? With a big non-functional microphone image slap dab in the middle? Really? Do you think that if we applied the clean-room process from software to a UI designer that given the requirements for a recording app they’d end up with a screen layout SO close to the Apple one?

    Further, Apple has asserted trademark infringement against copying of icons.

    There ARE design patents involved but that’s not what you listed in almost a strawman fashion (yes, that word you hate again…but you’re taking specific elements out of context…like rounded corners…and then refuting them when it doesn’t matter). Against the Galaxy these were for the shell of the device (D602,016) and then the screen and button layouts (D618,677).

    Then there are some functional patent claims including one a hardware one.

    Where do you want to be broken?

    Ohhh…an internet tough guy. If we ever meet face to face you can ask me that question again, mkay.

  278. >Eric didn’t say he invented the concept — he said he may have invented the term.

    Again, correct. “Information asymmetry” is a well-established term in economics, it applies beyond “keeping secrets” to any transaction in which one party has a lot more knowledge about expected outcomes than the other. “Rent” and “rent-seeking” are also well understood. But specific analysis of rent extracted from information asymmetry has been hard to find. Before my analysis the only economists that I know to have focused on it at all were Hal Varian and Dan Shapiro.

  279. @jessica

    However, as I said before, at least with iOS, the trains actually do run on time.

    Yeah, I know, you didn’t get a rise out of anyone the last time. Not because we didn’t get you’re trying to equate Apple with fascism but because it’s not very clever and doesn’t avoid Godwin’s Law.

    Is it absolutely necessary to demonize folks you don’t agree with or like? It’s just a phone/tablet for crying out loud. You like to cry freedom like Mel Gibson but hey, how about the freedom to have a nice little walled garden where we can actually sell apps and make money without resorting to using annoying ads?

  280. These aren’t functional patents OR design patents. These are protections on design styles for a brand. The items you listed are combined together to form a specific design style that is identifiable as an iPhone. Samsung replicated these elements down to the packaging of the Galaxy S to resemble the iPhone. You can use any one of these elements, you can probably even use all of them (rounded corners, etc) in some other manner that is unique to your design style. You can’t use them in a way to make your product look like an iPhone without being called out on Trade Dress.

    What utter BS. If I start my own car company and make cars that have similar “elements” and curves as BMW (however subjective that may be) does that make my car a BMW? Would the average consumer (dumb as they may be) really believe that my car is a BMW ?
    If my car performs better than the BMW and customers flock to it en masse then I have “earned” my success sir.

    Apple thinks it is the BMW of cell phones. Why are they so worried and suing/bullying people left and right if they are indeed the BMW of phones.

    The problem with apple is that they offer a bad product that is shiny. It’s only appeal is that it’s a shiny. When someone else offers a better product that is also shiny, apple starts whining and making silly arguments like the one above about how they invented “shiny” and how their “shiny” is really different than everybody else’s shiny and how copying their packaging is both intellectual theft and a crime against humanity. That just shows how pathetic they are as a company.

    I have always thought that Apple should be in the women’s accessories and fashion business. Every time I walk into a starbucks and see teenage girls with their plastic Macbooks with pink stickers on them I am ever more reminded by that.

  281. @Nigel

    how about the freedom to have a nice little walled garden where we can actually sell apps and make money without resorting to using annoying ads?

    Knock yourself out. Nobody’s trying to have your preferred platform forcibly removed from the market by government guns.

    It’s just a phone/tablet for crying out loud.

    This is a bit more important than a Ford/Chevy pissing match. As ESR and others have noted, mobile devices are going to replace most traditional PCs in the not-distant future. If Apple has their way, almost all of those devices will be locked down, which would be very bad for both freedom and innovation.

  282. If Apple has their way, almost all of those devices will be locked down, which would be very bad for both freedom and innovation.

    Given Apple’s margins “almost all” equates to about 25% of the smartphone market. There’s no cheap version of the iPhone at the moment to attempt to capture the low end of the smartphone marke and Apple has never had more than a third or so of the smartphone market.

    They have more in the tablet space but this is probably just temporary. I don’t see them replicating the iPod success there but I do expect them to do far better than the Mac did share wise.

    As far as “forcibly removed from the market by government guns” it’s also called “following the law” and not using other people’s IP without consent. If it turns out that Android is in the clear then there’s no problem.

    Google felt there was a problem and solved it with $12B+. A price they can afford. Now they can simply cross-license like everyone else and Android should be fine. It probably would have been cheaper to buy Sun and get phone license agreements some other way but hey…

  283. @Tom, nigel:

    Here’s an example of one of the junk patents Apple is asserting against HTC:

    http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=5,946,647.PN.&OS=PN/5,946,647&RS=PN/5,946,647

    In case you were wondering, this is a patent that survived first-round review at the ITC and, therefore, might well become the basis of an import ban of HTC Android devices. It is also a patent that is arguably being infringed above (and many other times in this thread) by esr, his hosting provider and/or the the relevant blogging software developers.

    What is it a patent on? It is a patent on recognizing things like phone numbers or URLs in a chunk of text and turning them into clickable actions (this is *exactly* how Apple asserted HTC infringed at the ITC). I can think of several examples of prior art, including such obscure things as WikiWikiWeb (which is the merely first example I could track down where I can point to a concrete date). I’m sure esr and others can think of plenty more. In other words, the patent is complete junk.

    Do you agree that this is a junk patent? Do you agree that the bogosity of the patent should be obvious to everyone, including plenty of relevant people at Apple? If so, how do you feel about Apple asserting it?

  284. @Jessica Boxer:

    Building on your comparison to Microsoft, does anyone disagree with the following statement (and, if so, show your work):

    If Microsoft had played by Apple’s iOS rules at the height of their power, then today, at the very least, there would be no iPhone or iPad and, most likely, Apple would be only a memory.

  285. @Nigel:

    Except that it isn’t. Trade dress is a specific element that protects against someone using enough design cues to trigger consumer recognition.

    Sorry, thought you were referring to either the German suit over community designs, which seem similar to design patents in scope and duration.

    Apple has won these before against Daewoo and eMachines over the iMac design.

    Those were for completely non-functional elements that really made the Daewoo look just like the butt-ugly iMac. They weren’t for rounded corners. BTW, did you even take a look at that DVD player from 2008?

    Samsung replicated these elements down to the packaging of the Galaxy S to resemble the iPhone… The examples I provided show how FAR Samsung has gone in the effort to replicate the iPhone design elements

    Do you really think any consumers are confused about what they are buying? No confusion, no Lanham act claim.

    down to app design, icon choices, etc. Sure a microphone is an obvious thing to include on a recording UI but with the same layout and general style? With a big non-functional microphone image slap dab in the middle? Really? Do you think that if we applied the clean-room process from software to a UI designer that given the requirements for a recording app they’d end up with a screen layout SO close to the Apple one?

    I have no idea, but that would be extremely easy to remedy. Perhaps that’s why Samsung is making changes for the Australian market.

    There ARE design patents involved but that’s not what you listed in almost a strawman fashion (yes, that word you hate again…but you’re taking specific elements out of context…like rounded corners…and then refuting them when it doesn’t matter). Against the Galaxy these were for the shell of the device (D602,016) and then the screen and button layouts (D618,677).

    The shell is pretty generic. The screen and button layouts can be changed in the blink of an eye if they are found to infringe.

    Then there are some functional patent claims including one a hardware one.

    Yeah, that sort of thing is going to come back to haunt Apple.

    Ohhh…an internet tough guy. If we ever meet face to face you can ask me that question again, mkay.

    Oh, I won’t be asking anything. Either you have a sense of humor and you’ll let it slide, or you won’t. I’ve never started anything, but I’ve finished a few times.

    However, as I said before, at least with iOS, the trains actually do run on time.

    Yeah, I know, you didn’t get a rise out of anyone the last time.

    Actually, I chuckled.

    Is it absolutely necessary to demonize folks you don’t agree with or like? It’s just a phone/tablet for crying out loud.

    Perhaps you’re confused. Apple’s demonizing a phone/tablet, so we’re demonizing Apple, so you’re demonizing us.

  286. Given Apple’s margins “almost all” equates to about 25% of the smartphone market.

    Not just iOS. By all indications Apple’s preferred outcome is to have a duopoly with WP7.

    As far as “forcibly removed from the market by government guns” it’s also called “following the law” and not using other people’s IP without consent.

    Which is effectively impossible due to the incompetence of patent issuers, as demonstrated by Ravi above. Yes, spending billions on patents and lawsuits to force your competitors out of the market is “legal”, and using blindingly obvious methods for which somebody was able to convince an ill-informed government agency to issue a patent is “illegal”. As far as “evil” and “not evil”, I consider it to be the opposite.

  287. @patrick

    BTW, did you even take a look at that DVD player from 2008?

    Yes, but it’s not a tablet and there’s no confusion.

    That the Daewoo WAS a butt-ugly iMac was the point. Likewise that the Galaxy is built to look like an iPhone and the Tab to look like a iPad. Why? Because someone want to capitalize on a successful design that someone else developed rather than create a successful design of their own and ride their coat tails.

    Again, you can use all of those design elements you listed as long as you aren’t trying to imitate the iDevices. A DVD player isn’t.

    I have no idea, but that would be extremely easy to remedy. Perhaps that’s why Samsung is making changes for the Australian market.

    Remedy is fine, however it is clear that Samsung is attempting to copy the style of Apple products. Something you seem to be hesitant to acknowledge. There are a LOT of android phones that don’t look like an iphone. Likewise a lot of Android tablets that don’t look like the iPad AND look very nice.

    The Sony S1 looks sharp and clearly isn’t an iPad given the shape of the body cross section. The S2 is very very cool. If the price isn’t outrageous I’ll seriously think about getting one. I like the look of the Nook. The little cutout for the memory card makes it distinctive. The Aigo tablet looks nice (perhaps just a render) with the red. The button and camera positions also makes it very unique looking. And there are plenty more examples.

    Perhaps you’re confused. Apple’s demonizing a phone/tablet, so we’re demonizing Apple, so you’re demonizing us.

    No confusion, Apple is suing Samsung for copying it’s designs in an excessive way. Whether they prevail remains to be seen. If not then they owe Samsung some money. That’s not demonizing. At most they say that Samsung is being lazy and should create their own stuff. Not evil.

    I’m not demonizing you either. I’m not saying you’re stupid or evil or a shill or a fascist or whatever. I’m disagreeing with your position. When you make a weak argument I’ll call it for what it is, not imply you’re an idiot. Sometimes I might accidently but if you call me on it I’ll apologize. That’s not (usually) the intent.

  288. @ravi

    Do you agree that this is a junk patent? Do you agree that the bogosity of the patent should be obvious to everyone, including plenty of relevant people at Apple? If so, how do you feel about Apple asserting it?

    1996…have to think about it. Wiki doesn’t count (manual tagging). HTML doesn’t count (manual tagging). I believe the patent has been challenged before and survived. There are certainly enough eyeballs looking at it and looking for prior art.

    Is it a junk patent? It seems obvious today. But then so does the stirrup.

    Given that constrained natural language input (5,369,575) was awarded to IBM in 1994 and filed in 1992 maybe not. Meh. If 647 has survived prior challenges I’d be inclined to think it wasn’t a junk patent. If it has not been challenged (wtf is HTC waiting for?) then I’m inclined to agree that it might be a junk patent. Assuming you could find me some prior art…I don’t think it was as obvious as some folks make it out to be and again, I dunno what HTC is waiting for. If they have challenged what is their prior art example?

  289. @nigel:

    How is automatically generating a link to the wiki page of the same title from a CamelCase phrase not automatic? And how is recognizing a phone number or a URL not an obvious extension of that? Perhaps, you’re being misled by modern wiki usage where people don’t want to use CamelCase and/or want to link outside the wiki so they use manual tagging, but manual tagging is *not* how wikis started.

    I’ll also add that the slew of email clients that have detected and made email addresses and URLs clickable over the years is a testament to the obviousness of the idea. Some of them may even predate the patent application, but it is hard to get detailed feature breakdowns for 15-year-old software. I do know for a fact that more than one predates the patent grant (when the technique was published) because I remember using them by 1998. Microsoft Word 95 already highlighted misspelled words in 1995. I don’t know whether it offered you a list of context-sensitive spelling actions if you right-clicked on a misspelled word back then (as it does in Word 2003), but if it didn’t adding actions after detection and highlighting is an obvious extension. Or we could talk about bug-tracking software that detects and makes bug identifiers clickable. Or …

    More to the point, I’m not asking you to make a legal assessment (i.e. whether an airtight-enough example of prior art and/or obviousness can be demonstrated to successfully invalidate the patent), but a practical one. If you honestly think the idea wasn’t an obvious extension of the technology that existed before February 1996, then there’s no point in further discussion because our conceptions of obviousness are too far apart for it to be meaningful.

  290. @Ravi
    Number recognition, prices, times, addresses, telephone numbers, ahs been the stapple of automatic text synthesis as long as digital texts were available. Any Text-to-Speech application would have had that in-build.

    But as you write, it is difficult to get the features of obsolete software.

    But here is an example from ATARI stspeech.tos:
    http://www.youtube.com/watch?v=DJIVrEg-6YI

    Note how the synthesizer pronounces ATARI 520st as: “5 – twenty S T” but “12345678″ as “1 2 3 4 5 6 7 8″

    So this one did number recognition.

  291. @Patrick

    First of all, just to get some facts straight, I would like to quote some snippets from Google’s Android FAQ:

    Devices that are properly compatible can seek approval to use the Android trademark. Devices that are not compatible are merely derived from the Android source code and may not use the Android trademark.

    Android Market is a service operated by Google. Achieving compatibility is a prerequisite for obtaining access to the Android Market software and branding.

    The Google apps for Android, such as YouTube, Google Maps and Navigation, Gmail, and so on are Google properties that are not part of Android, and are licensed separately. Contact android-partnerships@google.com for inquiries related to those apps.

    Is compatibility mandatory?

    No. The Android Compatibility Program is optional. Since the Android source code is open, anyone can use it to build any kind of device. However, if a manufacturer wishes to use the Android name with their product, or wants access to Android Market, they must first demonstrate that the device is compatible.

    Who determines what will be part of the compatibility definition?

    Since Google is responsible for the overall direction of Android as a platform and product, Google maintains the Compatibility Definition Document for each release.

    The point of all this is just to demonstrate that Google controls whether your device gets access to a whole load of stuff that most Android manufacturers will want. It isn’t mandatory, but in reality it means that Google has a good deal of influence over handset makers that allows them to ensure that their services are well represented on Android devices. This, of course, was their strategy all along; to create a mobile channel that they could control (not completely, but enough) so that their ad revenue would not be impacted by mobile platforms beyond their control.

    @Ravi

    Do you agree that this is a junk patent?

    Yes. I have said all along that most of the lawsuits were likely bunk. I am not making excuses for Apple here, I am just trying to explain *why* they are behaving this way, because it *is* unusual behaviour for Apple. They have gone after Android makers with the fury of God’s own thunder, and why? Because they are angry. They see Android as unfair competition because Google released it with the express intention, not of competing directly in the handset market themselves, but of undercutting everybody else in the market in order to create a dominant channel through which they can be confident of showing their ads.

    By the way, I notice that nobody has answered my question of whether they think my Apple search engine scenario would constitute anti-competitive behaviour.

    @Tom DeGisi

    I think I can handle this one. Apple’s behaviour in this case depends on trade dress, copyrights and patents. All of these are government granted monopolies. If Apple is trying to get the government to apply trade dress, copyrights and patents more broadly than the government should so Apple can benefit from the government granted monopolies, than they are rent-seeking.

    Ha! Well you’ve got me there! I wasn’t thinking about their lawsuits, I must admit, but about the fundamental economics of the handset market. It must be remembered that these lawsuits, which I suppose qualify as rent-seeking, were provoked by Android, rather than mitigated by it.

  292. “There’s actually a legal definition of this, courtesy of Judge Learned Hand’s decision in the Alcoa antitrust case”

    Hand was a brilliant legal mind, but the Alcoa case showed the insanity of anti-trust laws. Alcoa got its market dominance by doing such a good job that no one thought they could compete with them. They didn’t buy any government officials to put up barriers to competition; they didn’t threaten potential competitors with expensive legal fights. They just put themselves in a position to pay more to the mining companies and still sell aluminum at a lower price than anyone thought they could do.

    To me, a true monopoly is not just a huge marketshare; it’s that the monopolist has arranged the situation so that no one can even try to compete with them.

  293. What utter BS. If I start my own car company and make cars that have similar “elements” and curves as BMW (however subjective that may be) does that make my car a BMW? Would the average consumer (dumb as they may be) really believe that my car is a BMW ?
    If my car performs better than the BMW and customers flock to it en masse then I have “earned” my success sir.

    No, you haven’t. You are infringing on BMW’s trade dress. This is well-known, established intellectual property law. Trade dress has approximately the same strength as a trademark and may also be additionally protected by design patents. You are legally barred from manufacturing a car that looks like, and may be confused with, a BMW because BMW has an interest in the reputation established by the peculiar shape of that car.

    It’s the same with tablet manufacturers and the iPad. I have sympathy for Samsung; we all know that the iPad is the only tablet worth giving a shit about, so if other tablet manufacturers want to compete they have to convince their customer base that their product is iPad-like. Infringing on Apple’s trade dress is still illegal, though. If Samsung wants to compete on price and features that’s fine; they should make their tablet butt-ugly like all the other non-Apple tablets; then there’d be zero chance of it being confused with an iPad.

  294. Winter,

    “Picasso had a saying — ‘good artists copy, great artists steal’. We have always been shameless about stealing great ideas.” –Steve Jobs

    Truly revolutionary artists steal, and then lawyer up so that no one else can steal what they rightfully stole. That’s how Steve does it, that’s how Walt did it, that’s how America does it — and it’s worked out pretty good so far.

    It also so happens that the trade dress and design patent IP under consideration covers only electronic devices with black rectangular bezels in certain configurations. So Steve Jobs stole a millennia-old design and applied it to his new gadget. He was leveraging the familiar. Which is what Apple is uniquely good at.

  295. @Tom
    “It isn’t mandatory, but in reality it means that Google has a good deal of influence over handset makers that allows them to ensure that their services are well represented on Android devices.”

    So, the free parts of Android are unfair competition because they are, eh….., free. The parts that are not free are unfair competition because they are, eh….., not free?

    Economically speaking, if a product can be produced free of cost, then that is not unfair competition. Love is not unfair competition to prostitution.

    What you are saying is that Gillete unfairly competes against razor-blade handset makers, because they give away their razors.

  296. I think the Android vs iOS/WPx/Symbian/WebOS etc. is not dissimilar to the earlier cellphone standards wars. GSM, by being a reasonably neutral* standard, allowed carriers and subscribers vastly more choice of handset and basestation equipment than any competing proprietary standard (CDMA/iDEN etc.). Did that cause a number of hardware makers to suffer? yes it did. It also caused a bunch of other grief to carriers and the like because of the SIM card. The SIM allowed you separate the handset from the operator because you could move the SIM card from one handset to another. You can take a European SIM from your old European GSM phone and stick it into a sexy new Android phone you just bought in Hong Kong and when you return to Europe it will work just fine. You can do the revere and take your sexy Android and buy a sim in a different country or even from a different operator in the same country and use it in the same phone.

    Exactly the same freedom of choice applies to the Android platform, in fact it’s exactly what Symbian was supposed to be except that Nokia screwed it up (or J2ME I guess). As a standard platform it will allow others to innovate above and below it. So we will see (and are seeing) lots of different people making androids and making android apps and we see way more different form factor Android phones/devices than we see iphones/pads or Windows mobile ones. Now WP7 is kind of the same in theory (as was Symbian) but in practice it isn’t so flexible. And there’s no possibility of a WP* equivalent of cynogen or similar. An Android phone can run multiple variants of the OS. Can connect to multiple APP Stores. etc. But yet an Android app will run on all of them. It may run better on some and it may be that version X runs better on newer handsets than version X-1 but that’s quibbles. The data and functionality is generally preserved even if the UI blows on a particular combo.

    * #include std_disclaimers.h

  297. Samsung looks like a copy of the iphone ….
    No Android handset maker is doing it to the level of Samsung is doing it..

    No wonder why Samsung is doing so well… It is the best android maker out there who actually can make a profit, by copying Apple Iphone.

    It is like a shoemaker making a sport shoe with three stripes to imitating and copy the look of Adiddas sport shoe. That is what Samsung is doing. 4×4 row of icon, a dock of 4 icon hell even same icon color and design.

    Their Tab is less of a copy but that is only because Honeycomb is not an open OS!!!! if not it would be exactly like the Ipad in a glance. That is what sells.

    ————————————————————————-

    Maybe after the buying of Motorola all of HoneyComb and Icecream tablet willl now be not tied the Tegra 2 SOC but with Motorola T! SOC!!!

    12 billion is a lot of money….. Google by hook n crook will need to make money after losing that much amount of Money..

    And Mobile Ad n apps will not be enough. Nobody with an $100 phone would ever see a single damn ad that is worth something.

    That is where android is at the strongest…. The Symbian killer…where feature phone be upgrade to smartphone.

    A world with only local carrier and no pipe. where ad are useless.

    ————————————————————————–

    With another 12 billion flush in drain…
    Billion more from Oracle…
    Billion more for R&D n marketting…
    Billion more from other ppl suing android..

    Yet Google still makes most of it’s money in mobile from IOS!

    To get a return of Android….
    Google needs to make it’s money from Hardware!
    And to make more close system?

    Only from a garden or a farm can one harvest the fruit,
    And make money!
    Nobody can make money from an open jungle….
    maybe just enough to feed yourself. but no money cos the open jungle doesn’t belong to anyone.

    This whole year Google is unlikely to open up their new Android OS and the patern may continue for next year too…

    HoneyComb is close…. the Name android is close… The Logo is close….

    and the OpenSource guy has become droid….. a bunch of droid!
    just like they always wanted to!

  298. @Winter

    So, the free parts of Android are unfair competition because they are, eh….., free. The parts that are not free are unfair competition because they are, eh….., not free?

    No, the free parts are how it gave Android handset makers a free and unearned leg-up. The non-free parts are how it maintains control.

  299. @Nigel:

    BTW, did you even take a look at that DVD player from 2008?

    Yes, but it’s not a tablet and there’s no confusion.

    But it makes it much easier to claim both (1) that Apple’s creation is not unique (that things that look like that aren’t necessarily made by Apple), and (2) that some of the elements are functional.

    That the Daewoo WAS a butt-ugly iMac was the point.

    But there’s no function associated with being ugly. Seems to sell well, though, judging by recent cars and SUVs.

    Likewise that the Galaxy is built to look like an iPhone and the Tab to look like a iPad.

    I really think the similarity is more due to functional elements.

    Again, you can use all of those design elements you listed as long as you aren’t trying to imitate the iDevices. A DVD player isn’t.

    My point with the DVD/picture frame is that most of those design elements are functional. I know you don’t believe that, but I do.

    I have no idea, but that would be extremely easy to remedy. Perhaps that’s why Samsung is making changes for the Australian market.

    Remedy is fine, however it is clear that Samsung is attempting to copy the style of Apple products. Something you seem to be hesitant to acknowledge. There are a LOT of android phones that don’t look like an iphone. Likewise a lot of Android tablets that don’t look like the iPad AND look very nice.

    Not being much of a style maven, perhaps I should take your word for this. To me, they look quite different. As far as the icons go, it really pisses me off when different devices and programs use different icons for the same thing, so I view those as completely functional. This article has some interesting background on the dispute in California:

    http://copymarkblog.com/2011/04/22/apples-samsung-lawsuit-the-trademark-issues/

    The Sony S1 looks sharp and clearly isn’t an iPad given the shape of the body cross section. The S2 is very very cool. If the price isn’t outrageous I’ll seriously think about getting one. I like the look of the Nook. The little cutout for the memory card makes it distinctive. The Aigo tablet looks nice (perhaps just a render) with the red. The button and camera positions also makes it very unique looking. And there are plenty more examples.

    The difference between a clamshell and a single flat screen is functional. Some will want the protection of the clamshell, some won’t want to open the phone. Some of the rest of the features you talk about are functional as well. But if you hold an iPad and hold a Samsung tablet, you will immediately see/feel the difference, as well. To me, the difference is easily visible at a few feet, which, considering the size of the device, isn’t bad.

    Perhaps you’re confused. Apple’s demonizing a phone/tablet, so we’re demonizing Apple, so you’re demonizing us.

    No confusion, Apple is suing Samsung for copying it’s designs in an excessive way. Whether they prevail remains to be seen. If not then they owe Samsung some money. That’s not demonizing. At most they say that Samsung is being lazy and should create their own stuff. Not evil.

    Taking a legal tool that’s designed to quickly shut down fly-by-night fake handbag manufacturers who have no forwarding address, and using it against a big corporation which is easy to find, who can and will pay up any damages later, in order to shut down their product ramp with a preliminary injunction that doesn’t even really look at the merits, instead of using a regular court, isn’t evil? Sorry, but it is in my world. If Apple really has a case, they should man up and use the adversarial system properly.

    I’m not demonizing you either. I’m not saying you’re stupid or evil or a shill or a fascist or whatever. I’m disagreeing with your position.

    True. Sometimes when too much stuff happens, I get some of the posters I am responding to confused, and think I am responding to one who thinks that Android must fail no matter what. But we certainly disagree about how much of the Samsung tablet’s design is driven by functional elements (which, even if slavishly copied from Apple, are legal if there is no utility patent).

  300. @Jeff Read:

    No, you haven’t. You are infringing on BMW’s trade dress. This is well-known, established intellectual property law. Trade dress has approximately the same strength as a trademark and may also be additionally protected by design patents. You are legally barred from manufacturing a car that looks like, and may be confused with, a BMW because BMW has an interest in the reputation established by the peculiar shape of that car.

    If no one is “confusing” my car with BMW then non of this trade dress bullshit applies. That was the original intent of that law. Samsung phones are not knock off replicas of iphones. They are not sold in Apple stores or at the Apple corner at Best buy. The probability of someone getting confused that a Samsung phone is an apple phone is equal to 0.0%.

  301. @Tom:

    The point of all this is just to demonstrate that Google controls whether your device gets access to a whole load of stuff that most Android manufacturers will want.

    But offering service that companies want, under terms they don’t find objectionable, is just good competition. You claim you’re really not trying to use obfuscatory debate tactics, so I think you really need to reexamine your use of the word “control” (and also, btw, your use of the term “anti-competitive”). You are using “control” for multiple things that are completely different. Google offering to trade access to the app store for compatibility is not control in the coercive sense, but you use this same word in other more coercive contexts.

    It isn’t mandatory, but in reality it means that Google has a good deal of influence over handset makers that allows them to ensure that their services are well represented on Android devices.

    But have you looked into what is required to be “compatible?” It’s not particularly onerous. But I’m really having a hard time with the argument here. Google is bad when they give stuff away for free, then they are bad because they are actually charging, but it’s not cold hard legal tender?

    No, the free parts are how it gave Android handset makers a free and unearned leg-up.

    So, either this is fine, or you are an open-source hater. The sentiment is certainly couched in somewhat inflammatory verbiage — “unearned” implies not only that they didn’t earn it, but that they should have earned it.

    The non-free parts are how it maintains control.

    This, of course, was their strategy all along; to create a mobile channel that they could control (not completely, but enough)

    See, there’s that “control” word again. No, they don’t really care if B&N uses their app store or not. They really don’t care if some no-name China company makes a version that uses Microsoft for search. And they don’t really care if someone puts different non-free software on top of the stack. Apple or RIM could take the lower levels and make better stuff at the top for all they care.

    so that their ad revenue would not be impacted by mobile platforms beyond their control.

    Insuring that Apple didn’t take 90% of the smartphone market and thus can’t act as a gateway between most consumers and the web certainly takes control from Apple, but google isn’t hoarding the control. They’re giving it to the free market, to give to the consumers.

    Yes. I have said all along that most of the lawsuits were likely bunk. I am not making excuses for Apple here, I am just trying to explain *why* they are behaving this way, because it *is* unusual behaviour for Apple.

    No, it’s not. They have a history of using the law as both a club and a shield, and throwing lawyers at problems.

    They have gone after Android makers with the fury of God’s own thunder, and why? Because they are angry.

    No, it’s really all about money. Or at least, it should be.

    They see Android as unfair competition because Google released it with the express intention, not of competing directly in the handset market themselves, but of undercutting everybody else in the market in order to create a dominant channel through which they can be confident of showing their ads.

    But google isn’t creating any confidence about their ads. Their platform is open. They are leveling the playing field, and working hard to compete fairly on that field.

    By the way, I notice that nobody has answered my question of whether they think my Apple search engine scenario would constitute anti-competitive behaviour.

    Not enough information. You said that Apple would maintain a database and give away search results. Would they promise to do that forever, or would they start charging if they killed google? The point of Android is not to kill Apple, it’s to insure decent consumer choice. We already have decent consumer choice in the search business. Like most, I choose not to use bing, but if I were forced to use bing I’d probably live — it’s much better as a search tool than most pre-Apple/pre-Android phones are as smartphones. So, personally, I would be leery of an Apple solution, and wouldn’t use it. I’m sure lots of consumers agree, and it would be incredibly hard for them to kill Google.

  302. # nigel Says:
    #I said:
    >> However, as I said before, at least with iOS, the trains actually do run on time.
    > but because it’s not very clever

    Hey, I thought it was funny, and clever. But perhaps my standards are lower than yours.

    > Is it absolutely necessary to demonize folks you don’t agree with or like? It’s just a phone/tablet for crying out loud.

    You could not be more wrong. You could try, but you would not be successful.

    Make your little garden if you like. Go nuts. But don’t tell me I can’t build a garden, and don’t try to force all the gardeners into a guild that you extract a tax from. You are aware what Apple did in Germany right? You are aware how aggressively Apple deals with jail breakers, right?

    I’m a libertarian. My attitude is “live and let live.” Apple can do what they like as long as they don’t interfere with other people’s attempt to do the same. Just to reiterate why I think Apple is toxic:

    1. They want to use the power of government to prevent competition via bogus patents
    2. They want to take complete control over the the most important part of consumer software development, and then tax it.

    If that isn’t corporate fascism, I don’t know what is. I’ve spent many of my teenage years and all my adult life dedicated to the production of top notch commercial software. I consider Apple’s actions a vehement attack on my liberty to practice my profession.

    I find it both laughable and painful to see all these Apply fanboyz who so demonized “Micro$oft” continue to idolize a man and a company who have gone to places that Bill Gates would never have dared to tread.

    So despite your dislike of my comparison, I will say again, on iOS, the trains actually do run on time.

  303. @Patrick

    You claim you’re really not trying to use obfuscatory debate tactics, so I think you really need to reexamine your use of the word “control” (and also, btw, your use of the term “anti-competitive”). You are using “control” for multiple things that are completely different. Google offering to trade access to the app store for compatibility is not control in the coercive sense, but you use this same word in other more coercive contexts.

    What I am trying to explain is that there exists a soft-power relationship between Google and the handset makers. Google has something they want, something that is important for their products. Because of this, and the fact that Google runs the Android development and release process, Google can exert influence over Android handsets. This was the *whole point* of doing Android in the first place; to make sure that there is a dominant platform out there whose manufacturers cannot shut down access to google services.

    Google is bad when they give stuff away for free, then they are bad because they are actually charging, but it’s not cold hard legal tender?

    I’m not saying Google is bad at all, I am just trying to explain their strategy and why Apple is pissed off about it.

    So, either this is fine, or you are an open-source hater.

    See my previous comment. There is a difference between an open-source project like Android and one like Linux. Linux was a genuine community-based effort to build a free operating system. Android was a cynical ploy to disrupt the market in order to make money.

    Again, I am not saying Google is evil or wrong or that they don’t have a good strategy. I am just saying, let’s be honest that Google isn’t doing this to save the world. They are doing it to make money. They know that they are giving their handset makers a big artificial boost that they could not have achieved on their own. And they planned and executed it all while their CEO was on Apple’s board pretending to be the best of friends. And that is why Apple is behaving in such a violent fashion.

    No, it’s not. They have a history of using the law as both a club and a shield, and throwing lawyers at problems.

    It’s true that Apple has been litigious before. They sued Microsoft back in the day for infringing their IP. They have sued the odd journalist here and there to keep secrets, and I am sure there are a few more examples I am missing. However, the kind of onslaught against Android we are seeing now is completely unprecedented in Apple’s history.

    Not enough information. You said that Apple would maintain a database and give away search results. Would they promise to do that forever, or would they start charging if they killed google?

    No, they keep it free forever. Also they have given away the source code, so anybody with enough time could recreate the database if they wanted to. Also, they allow a complete download of the database at any time, so that people would put it up on their own servers.

    Are you telling me Google wouldn’t be angry about that? That they wouldn’t consider it an unfair and cynical attempt to shut them out of one market by undercutting them in another?

  304. @Tom: “By the way, I notice that nobody has answered my question of whether they think my Apple search engine scenario would constitute anti-competitive behaviour.”

    No, I would not consider your example to be anti-competitive behavior.

  305. @Jessica

    So despite your dislike of my comparison, I will say again, on iOS, the trains actually do run on time.

    The really funny thing is that Mussolini *didn’t* make the trains run on time. The idea of fascist efficiency is a myth, and it’s a myth that was deliberately invented and propagated by Mussolini as propaganda.

  306. @The Monster: “Hand was a brilliant legal mind, but the Alcoa case showed the insanity of anti-trust laws. Alcoa got its market dominance by doing such a good job that no one thought they could compete with them. They didn’t buy any government officials to put up barriers to competition; they didn’t threaten potential competitors with expensive legal fights. They just put themselves in a position to pay more to the mining companies and still sell aluminum at a lower price than anyone thought they could do.”

    I completely agree with you. I was just stating what the law currently reads, not what I believe it should be. Essentially, they were punished for expanding their supply capacity at the same pace as market demand grew. Hardly anti-competitive behavior in my eyes.

  307. @Cathy

    No, I would not consider your example to be anti-competitive behaviour.

    I know you are a lawyer Cathy, so you are no doubt much more knowledgeable about the meaning of the term ‘anti-competitive’ than I am. But, to speak in plainer language, do you not see why such a move on Apple’s part would make Google angry, and why they might regard it as an unfair attempt to undercut their business in order to damage them in another, unrelated, market?

  308. @Tom: “I know you are a lawyer Cathy…”

    No, I’m not a lawyer. Please don’t confuse me with Cathy Raymond; I am not her.

  309. @Cathy

    No, I’m not a lawyer. Please don’t confuse me with Cathy Raymond; I am not her.

    Sorry!

  310. @Tom

    I am just saying, let’s be honest that Google isn’t doing this to save the world. They are doing it to make money.

    And nobody is disputing that. The difference is that Google’s strategy is a net benefit to society by increasing choice and competition, while Apple’s strategy is a net harm.

    Are you telling me Google wouldn’t be angry about that? That they wouldn’t consider it an unfair and cynical attempt to shut them out of one market by undercutting them in another?

    They might very well be angry, to which the correct response would be “so what”. When formerly expensive goods and services become cheap, specific businesses may suffer but society as a whole is better off.

  311. @Brian 2: When formerly expensive goods and services become cheap, specific businesses may suffer

    I would add that when F/OSS becomes available, that’s a pretty good indication that business models based on the closed version are rapidly becoming non-viable, because there is no longer anything “special” about it. It’s a form of creative destruction, Schumpeter’s version, not Marx’s:

    http://en.wikipedia.org/wiki/Creative_destruction

  312. @Brian 2

    They might very well be angry, to which the correct response would be “so what”.

    You really think that Google would just throw up its hands and say ‘oh well, it’s good for society so I guess we’ll just let almost all our revenue disappear and do something else’?

    No, Google would do everything in its power to stop Apple eroding its advertising business, and you couldn’t blame them.

    That is what Apple is doing. I don’t condone their behaviour, but I do understand it, and arguments like ‘Apple is suing because they can’t compete on features’ or ‘Apple is suing to keep the downtrodden downtrodden’ or other such nonsense constitutes wilful attempts *not* to understand it.

  313. @ Jessica

    >You are aware how aggressively Apple deals with jail breakers, right?

    I wonder if you are. Aside from the DMCA bit (which was stupid), Apple’s policy has been “Sorry, we don’t provide support for jail broken phones. That’s it.

  314. John Gruber at Daring Fireball just posted this on his blog:

    http://twitpic.com/67ykpa

    Although I don’t think Apple is in the right on most of its IP lawsuits, I can certainly sympathise with the view that they have been widely copied. I don’t think there is much doubt that Apple invented the tablet category as we know it today.

  315. Don’t you think “invent” is a little strong? Engineer, maybe. Or design.

  316. @Tom:

    > You really think that Google would just throw up its hands and say ‘oh well, it’s good for society so I guess we’ll just let almost all our revenue disappear and do something else’?

    When corporations are desperate and on the ropes, they often do stupid, ugly things, like turn into patent trolls. But here we have a company which, by all accounts, is doing quite well, acting as antisocially as possible. Now, either Apple itself is feeling a lot of pressure (which possibility most Apple fanbois scoff at), or they are just being evil putzes. I have no opinion about what google would do if it were doing so poorly that current management got ousted, but I sincerely believe that current management would try to compete harder, not through the legal system, given the scenario you describe. It is a completely false choice between “throw up its hands” and suing competitors into oblivion. Most successful companies do neither.

    > John Gruber at Daring Fireball just posted this on his blog:

    John Gruber is a fanboi to be sure. He doesn’t bother with examples that don’t prove his point like:

    http://www.dailymail.co.uk/sciencetech/article-1381528/Knight-Ridder-tablet-looks-just-like-iPad-17-YEARS-OLD.html

    http://www.reghardware.com/2011/02/07/apple_ipad_tomorrow_people/print.html

    BTW, for the definition of “steal” that you and Nigel seem to be using, Apple even stole the name iPad:

    http://www.linuxfordevices.com/c/a/News/LG-demonstrates-wireless-Linux-Web-pad-at-CeBIT/

    > I don’t think there is much doubt that Apple invented the tablet category as we know it today.

    I vehemently disagree, but even if I stipulate this is true for the sake of argument, it doesn’t matter. Unless they have a utility patent that covers the concept of a tablet, it’s not a protectable “invention.”

    @tmoney:

    > Aside from the DMCA bit (which was stupid), Apple’s policy has been “Sorry, we don’t provide support for jail broken phones. That’s it.

    Their original policy seemed to include bricking jailbroken phones. After bad publicity and a lawsuit, that seems to have changed. But I think they still claim that it voids the warranty, which is complete bullshit.

  317. I don’t think there is much doubt that Apple invented the tablet category as we know it today.

    OMG

  318. > [Apple's] original policy seemed to include bricking jailbroken phones.

    Should have mentioned, I was designing upgradeable flash embedded stuff in 1994. It’s not rocket science, it’s not even network security, but you do have to put a little bit of thought and a lot of testing into making things unbrickable. Once you do that, however, there really aren’t that many variables to consider, and it is eminently possible to have an upgrade mechanism the user can’t hork up.

    So, from my perspective, that the iPhone could ever be bricked is problematic. Absent any other extrinsic evidence, we could use Hanlon’s Razor to declare Apple incompetent. Adding in the fact that it only happened to rooted phones might tilt the odds a bit towards evil. It could be a bit of both, but in this instance, it is highly unlikely to be neither.

  319. http://dealbook.nytimes.com/2011/08/16/musing-on-the-prospects-of-a-microsoft-counterbid-for-motorola/

    In truth, however, the actual price a buyer would pay is not as high as a deal would initially seem. Motorola has about $3 billion in cash on its books, which Google is already discounting. And it has tax benefits, called net operating losses, whose value is conservatively $1 billion. So the real purchase price of the Google deal might be closer to $8.5 billion or less.

  320. Although I don’t think Apple is in the right on most of its IP lawsuits, I can certainly sympathise with the view that they have been widely copied. I don’t think there is much doubt that Apple invented the tablet category as we know it today.

    Not just the tablet category, but the smartphone and the personal computer categories as well. You could very easily draw up “Before iPhone”/”After iPhone” and “Before Macintosh”/”After Macintosh” photos for those two categories. You can even make the case that the tablet category pre-iPad was an attempt to replicate the success of the Newton.

    You can talk about market share all you want but the conductor’s baton for the industry as a whole has always been firmly in Apple’s hand. Why would they sue for control? They already have it. If anything, they have to sue to keep themselves distinct from all the other copycats, and retain a brand identity.

  321. @Jeff Read:

    > You could very easily draw up “Before iPhone”/”After iPhone” and “Before Macintosh”/”After Macintosh” photos for those two categories.

    It’s not really that simple at all. There were lots of predecessors to the Apple stuff in all those categories that contained most of the design elements of any of those things. Unfortunately, they were generally made by small companies without sufficient financial clout to build and market them cheaply enough.

  322. >WebOS? What WebOS?

    I’ve removed the WebOS trend line from my comScore page.

    I’m guessing RIM is next off the cliff. If WP7 were just another product MS would already have shitcanned it, but it’s their only and forlorn hope of remaining relevant in a smartphone-centric world.

  323. When corporations are desperate and on the ropes, they often do stupid, ugly things, like turn into patent trolls. But here we have a company which, by all accounts, is doing quite well, acting as antisocially as possible. Now, either Apple itself is feeling a lot of pressure (which possibility most Apple fanbois scoff at), or they are just being evil putzes.

    This is quite normal behavior for Apple. It’s arguably how they got so big in the first place. It’s certainly how Microsoft got so big; one of Gates’s operating principles for the company is that if you don’t always act paranoid, you’re finished because the moment you get fat ‘n’ happy, the barbarians at your gates will have mustered enough strength to overrun you.

    Don’t expect Apple to let up as long as Jobs is in charge.

  324. @Patrick

    http://www.dailymail.co.uk/sciencetech/article-1381528/Knight-Ridder-tablet-looks-just-like-iPad-17-YEARS-OLD.html

    http://www.reghardware.com/2011/02/07/apple_ipad_tomorrow_people/print.html

    Very weak sauce, especially number 2. Yes, as with anything there are echoes of previous art in the iPad, but you cannot seriously deny that every tablet since the iPad has been a response to the iPad, and owes its fundamental nature to Apple. And yes, the same goes for iPhone to a somewhat lesser extent.

    And the name thing? Seriously? It’s hardly rocket science to come up with ‘iPad’. It was widely circulated as a possible name before the announcement by outsiders.

    And I never said anything about stealing. I simply assert the obvious, that Apple defined (better word, @DocDoc?) the modern tablet category.

    WebOS? What WebOS?

    http://www.businesswire.com/news/home/20110818006301/en/HP-Confirms-Discussions-Autonomy-Corporation-plc-Business

    Very sad. It was a great system with a lot of potential.

    But, you’re right, Android makes it easier for people to enter the market.

  325. @Tom

    No, Google would do everything in its power to stop Apple eroding its advertising business, and you couldn’t blame them.

    Absolutely I could blame them. Just like when corporations lobby for welfare or favorable regulations to hobble their competitors: they may be acting optimally from a shareholder value perspective, but we can and should call them out on such value-destroying behavior.

  326. Jeff Read Says:
    > Not just the tablet category, but the smartphone and the personal computer categories as well.

    I had all of these things before the iPhone. Is the iPhone better than early Windows Phones, hell yes. But it is an evolution not a revolution. Apple certainly popularized touch, but I was poking my smart phone a long time before iPhone. It wasn’t great, but it was so obvious even I managed to work it out. (BTW, I think Apple has done us all a disservice by completely eliminating the stylus as a built in peripheral. But that is another matter.) I read papers on gestures in college.

    Every inventor stands on someone else’s shoulders, but only the litigious ones recover down the patent chain. If everyone recovered license fees on everything they invented we’d probably have a ratio of 50% lawyers to 50% regular folks. Well we would, that is, until all innovation ground to a halt.

  327. @Brian 2

    Absolutely I could blame them.

    You might be singing a different tune if you had 25 thousand jobs and billions of dollars of equity value going down the drain as a result of sticking to your ethical standards.

    Yes, we should criticise companies when they fail to meet moral standards, but it is juvenile to assume that we would automatically do better in their place, or that people who make these mistakes are evil human beings.

  328. Tom Says:
    >No, Google would do everything in its power to stop Apple eroding its advertising business, and you couldn’t blame them.

    We could guess what they would do, or we could look at what they actually did. Apple did try to erode their advertising business by pwning the Smartphone world. Google didn’t fire up their lawyers, they fired up their developers and produced useful, competing products that allowed them to play in the same space. It was called Android.

    It seems to me that that is a better approach, capture the market by giving consumers what they want at a better mix of features/price/delivery rate than the entrenched competitors.

    Lawyers and patents are the opposite approach, and, to me, it is a pretty clear white hat, black hat situation. To be fair, Apple did both, so they are more like a dark gray hat.

  329. @Jessica

    Apple did try to erode their advertising business by pwning the Smartphone world.

    Oh please. Do you really think that Apple’s intention in creating the iPhone was to stifle Google’s ad revenues? Why on earth would they try to do such a thing?

    No: Apple didn’t enter Google’s market, Google entered Apple’s. But they didn’t do it directly, and they didn’t do it to compete with the iPhone. They did it because they saw a threat to their existing ad revenues.

    to me, it is a pretty clear white hat, black hat situation.

    I know, and that seems to be the attitude of several people who comment here. The reality isn’t black and white. As with most things it is much more complicated than that, but few people seem to acknowledge it.

  330. @Brian 2: “Not just iOS. By all indications Apple’s preferred outcome is to have a duopoly with WP7.”

    I’m curious on what facts that conclusion is based?

  331. @ Patrick

    >Their original policy seemed to include bricking jailbroken phones. After bad publicity and a lawsuit, that seems to have changed.
    >But I think they still claim that it voids the warranty, which is complete bullshit.
    >Should have mentioned, I was designing upgradeable flash embedded stuff in 1994. It’s not rocket science, it’s not even network security, but you
    >do have to put a little bit of thought and a lot of testing into making things unbrickable. Once you do that, however, there really aren’t that many
    >variables to consider, and it is eminently possible to have an upgrade mechanism the user can’t hork up.

    >So, from my perspective, that the iPhone could ever be bricked is problematic. Absent any other extrinsic evidence, we could use Hanlon’s Razor
    >to declare Apple incompetent. Adding in the fact that it only happened to rooted phones might tilt the odds a bit towards evil. It could be a bit of
    >both, but in this instance, it is highly unlikely to be neither.

    Yes, If you modify the software of your phone in an unsupported way, and then install a new update which likely fixes the security hole you used to modify your phone in the first place, without taking precautions to ensure that the modifications you chose to make do not conflict with the update you chose to install, then yes, you run the risk of bricking your phone. However, as someone who had an unlocked iPhone from the time when unlocking your iPhone didn’t happen with convenient graphical updaters, the reports of bricking I think were greatly exaggerated.

    In other news, DD-WRT warns me that installing DD-WRT without taking specific steps can brick my router, and that I should be equally careful when installing updates to DD-WRT as they may also brick my router. Further, all the guides to unlocking and rooting my LG Optimus also warn that I can brick my phone doing this.

    Does this mean LG and my router manufacturers and the DD-WRT developers are all incompetent or evil? Or is it simply that since no company supports unauthorized modifications and further that none of these companies (save for perhaps the DD-WRT developers) even expect their users to be modifying the firmware, that they decided it wasn’t worth the effort to put in support for the unsupported? I know you and I have danced this waltz before, but there really is nothing evil about a company not supporting that which they don’t support.

  332. @Tom:

    > Do you really think that Apple’s intention in creating the iPhone was to stifle Google’s ad revenues?

    Doesn’t matter what their original intentions were. The writing was on the wall.

    > No: Apple didn’t enter Google’s market, Google entered Apple’s.

    There were certainly indications that there was going to be stiff competition in the mobile ad business. Google and Apple both bid on AdMob, and after Google won, Apple eventually did their own iAd. Which is a perfectly reasonable thing to do. Which google isn’t suing them over.

    > But they didn’t do it directly, and they didn’t do it to compete with the iPhone.

    But you could make the same argument that by creating the iPhone and significantly enhancing the mobile ad opportunity while simultaneously taking serious control of the platform, that Apple indirectly entered google’s business first, but they didn’t do it to try to compete with search. BTW, to your point that they didn’t do it to compete with the iPhone, it wasn’t necessarily clear when the iPhone first came out that developers would be allowed on the platform. In fact, the Android SDK shipped before the iPhone SDK, if memory serves.

    > The reality isn’t black and white.

    Apple, like Microsoft, has done enough things where the reality is black and white that some of us are disinclined to cut them any slack.

    @tmoney:

    > Yes … [major qualifications] … you run the risk of breaking your phone.

    For something designed to be field upgradeable, that’s a major design flaw.

    > In other news, DD-WRT warns me that installing DD-WRT without taking specific steps can brick my router

    That’s either DD-WRT being overly cautious, or a design flaw of the router. Which is perhaps a bit more forgivable, if only because the total amount of flash on the router is orders of magnitude less than on the iPhone, and that is reflected in the price.

    > Does this mean LG and my router manufacturers and the DD-WRT developers are all incompetent or evil?

    LG is probably incompetent if it is easily bricked. But people claim Apple is better than that. Router manufacturer, possibly incompetent, but this link, for example, indicates that bricked might not actually be bricked in some cases. DD-WRT, absolutely not incompetent. They didn’t build the hardware device, and the hardware device should have been built so that a user update couldn’t brick it. Because who knows that all factory upgrades will always install flawlessly. Until/unless DD-WRT know the hardware and boot loader inside-out, it would be silly of them to claim responsibility.

    > I know you and I have danced this waltz before, but there really is nothing evil about a company not supporting that which they don’t support.

    It’s not about unsupported features. As has already been proven to more than my satisfaction by my daughter’s experience with her own iPhone, every app download is potentially an OS corrupting event, and you can’t seriously claim that Apple doesn’t support app downloads.
    If Apple designs a product, the software of which is designed to be modified in the field hundreds or thousands of times over the product’s lifetime by untrained personnel, and they didn’t design the system such that the firmware is always recoverable, then they did a shitty job. Anybody who knows anything about software knows that Murphy’s Law applies in spades.

    However, I am glad you challenged my thinking on this. Apple was clearly incompetent. If, as appears likely, they were purposely bricking unlocked phones at one point, then they were additionally malicious in realizing the security hole presented by their own incompetence and exploiting it.

  333. @Cathy

    I’m curious on what facts that conclusion is based?

    That was an overstatement; the evidence is circumstantial but I still think it’s likely. First, Tom is correct that “Apple is pissed” at the existence of Android, and also that Apple by themselves isn’t capable of taking a majority of the market unless they go for the low-margin end, which is possible but unlikely. So in most futures where Apple succeeds in kicking Android out, there will be another major player, and WP7 is the only remotely plausible contender. Second, Apple and Microsoft have been on comparatively friendly terms lately. AFAIK none of their lawsuits have targeted each other either directly or by proxy, and I don’t recall either of them saying anything negative about the other in quite some time. Third, their interests are mostly aligned: both want walled gardens to lock customers into their ecosystems and create roadblocks for potential disruptors. And yes, they probably really do believe that it’s a better experience for most users.

    I won’t be terribly surprised if Apple makes Bing their default search engine within the next 12 months.

  334. @Tom:

    > Very weak sauce, especially number 2.

    Why?

    > Yes, as with anything there are echoes of previous art in the iPad, but you cannot seriously deny that every tablet since the iPad has been a response to the iPad,

    I will agree that Apple’s combination of price, performance, and ease-of-use showed that there really was a mainstream market there.

    > and owes its fundamental nature to Apple.

    No. If one of the reasonably well-built Windows tablets had been priced below $500, it would have been selling like hotcakes, as well.

    > And yes, the same goes for iPhone to a somewhat lesser extent.

    No. Apple’s main contribution to this market, which I have acknowledged on numerous occasions, was to help start the process of wresting control away from the carriers. But they did that in order to keep the control themselves, and google is helping to finish the job properly.

    > And the name thing? Seriously? It’s hardly rocket science to come up with ‘iPad’. It was widely circulated as a possible name before the announcement by outsiders.

    Why is it that you can easily notice obvious stuff is obvious when Apple does it, but not when one of their competitors does it? How is this really different than, e.g., using a microphone icon (other than using a microphone being even more bloody obvious)?

    > And I never said anything about stealing. I simply assert the obvious, that Apple defined (better word, @DocDoc?) the modern tablet category.

    That’s not at all obvious. It is obvious that they showed that if you drop the price enough, they will come.

  335. @Brian 2:

    I won’t be terribly surprised if Apple makes Bing their default search engine within the next 12 months.

    If that happens, the Android team will throw a party. I can’t think of any other plausible move Apple might make that would generate more user backlash. Or any better way of showing even people who don’t want to see that they don’t own their iDevices, Apple does.

  336. @Ravi, Brian 2:

    As Ravi points out, it would be a huge mistake to change the default regular search engine out from under people. But specialized, always-on location-based search apps are on the rise:

    http://technorati.com/business/advertising/article/location-based-mobile-search-on-the/

    Apple being able to compete on an app that’s always looking at where you are and is all about showing you pizza joints and maps and special offers isn’t out of the question. The data for such an engine could bypass the normal data plan, and the carrier could get a cut of the ad revenue. This is going to be a huge battleground, and I don’t know that much about the available apps, but I doubt the dust has settled yet.

    That’s the sort of thing that, absent Android, Apple could easily have done by themselves, and kept most of the revenue. Now Apple can still do that, perhaps, but they will have to do it better than google can on Android, and google has enough public visibility that, like the google+ app, it would be hard for Apple to disallow google’s location-based search app.

    BTW, this is an area that even Microsoft or Yahoo (possibly partnered) probably has a shot at, if they aren’t too religious about only supporting their own phone…

  337. @ravi

    How is automatically generating a link to the wiki page of the same title from a CamelCase phrase not automatic?

    Because you’re putting it in CamelCase. Automatic would be detecting Eric S. Raymond as a name and not EricSRaymond.

    I’ll also add that the slew of email clients that have detected and made email addresses and URLs clickable over the years is a testament to the obviousness of the idea.

    Given that they provide an example of this kind of prior art in the patent application the implementation of this concept in 647 and the specific advantages this implementation conveys may or may not be obvious to a practitioner in 1996.

    “One type of system that has addressed this problem involves detecting telephone numbers. Such systems enable a user to select a telephone number and request that the application automatically dial the number. However, these systems do not recognize the selected data as a telephone number, and they generally produce an error message if the user selects invalid characters as a phone number.”

    Their assertion is that in prior systems it is the programmer that recognizes the data is a phone number and provides some set of canned responses. The program has not classified 111-222-3333 as a phone number even if the variable name might be phoneNumStr.

    More to the point, I’m not asking you to make a legal assessment (i.e. whether an airtight-enough example of prior art and/or obviousness can be demonstrated to successfully invalidate the patent), but a practical one.

    Except that you ARE. You’re asking if the general concept is an obvious extension. I would agree yes. Take a bunch of developers in 1996 and talk about automatic term recognition and you probably would have come up with the use cases that this patent solves as a natural extension of URLs in a browser.

    But you don’t patent the use case. You patent the solution to the problem. Is this solution obvious? Meh, I don’t read legalize all that well so you’re asking me to either make a snap decision or spend lots of time puzzling out if I think the this solution was obvious in 1996.

    Now that I have a simple understanding of 647 in 2011 it seems obvious to me to keep a table (or something) of recognized structures, a table of actions for each of these structures and decoupling the parsing, recognition and actions into a system API that can be called by any application and produce application chaining (opening contacts or phone dialer or whatever) as part of a core OS behavior.

    In 1996 is there a user environment where this kind of implementation exists?

  338. Apple defined the modern tablet as follows:

    - Slim, rectangular device; ‘slate’ form factor. Not a convertible laptop or a ‘booklet’.
    - Screen basically *is* the front of the product.
    - Minimal adornment and buttons
    - The key idea that the device *becomes* whatever app you are using. When you are looking at the maps app you are holding a map in your hands and nothing else.
    - Touch interface; no dumbass stylus or physical keyboard.
    - *Multi*-touch with all the innovative gestures that go along with that, for example ‘pinch to zoom’.
    - Multi-touch that is good enough and responsive enough that it feels to the user as if they are directly interacting with on-screen elements.
    - An OS that is specifically designed to be a touch-based tablet OS. Not an OS that has been taken from the desktop and been modified a bit.
    - App-centric model, with access to a dedicated and well-integrated ‘app store’.
    - The key recognition that the tablet is a new device category. It’s not a PC. Like phones, people do not think of them as ‘computers’ as such.
    - Fast wireless internet, everywhere.
    - Long battery life, so that people are primarily using the device from the battery.
    - And, yes, achieving a price point that is acceptable to the mainstream.

    You can likely find precursors to a lot of these individual ideas in the past. Going back decades, in fact, for some of them. But Apple was the first to get every single one nailed perfectly in a single product. And every tablet since the iPad has been an attempt to replicate these ideas as well as the iPad has. It’s about a lot more than just price.

  339. I forgot to add that this doesn’t strike me as computationally intensive (hey, it DOES work on a phone) so it could have been implemented at pretty much any time after the 50s.

    Also, if approached with the problem of phone numbers and behaviors I think given that OO was pretty well established by ’96 that most practitioners would have implemented a solution of having a phone number class and encapsulating behaviors (dial, contact, etc) into that class. Does recognizing that this is a problem best solved at the system level rather than at the application level an “Ah ha” moment?

    If this were obvious why hadn’t we done it before? I dunno. So I dunno that 647 is a “junk” patent without looking at it in detail.

  340. # Tom Says:
    >You can likely find precursors to a lot of these individual ideas in the past. …
    > But Apple was the first to get every single one nailed perfectly

    I mostly agree with this. However, I think you are making your opponents’ point. Not revolution, evolution. Not so much invention, as excellent execution.

  341. @Jessica

    I mostly agree with this. However, I think you are making your opponents’ point. Not revolution, evolution. Not so much invention, as excellent execution.

    I don’t think so. Patrick’s point was that the only reason the pre-iPad Windows PC-tablet devices didn’t have success was that they were too expensive. That is false.

    My point is that iPad was a breakthrough product. It defined the category, and every tablet since the iPad has been a response to it, and an attempt to replicate what Apple did. Before the iPad nobody had come close to getting the form factor right. Nobody had come close to the set of ideas I outlined previously. Every tablet since the iPad has attempted the exact set of ideas that the iPad embodied.

  342. > I don’t think so. Patrick’s point was that the only reason the pre-iPad Windows PC-tablet devices didn’t have success was that they were too expensive. That is false

    First of all, pre-iPad Windows PC tablet devices did have success. There were several small companies making money selling them. Nonetheless, I said:

    > I will agree that Apple’s combination of price, performance, and ease-of-use showed that there really was a mainstream market there.

    Which is not quite what you are asserting I said.

    I also said

    > No. If one of the reasonably well-built Windows tablets had been priced below $500, it would have been selling like hotcakes, as well.

    I believe this to be true (I know you don’t) but I doubt it’s falsifiable, so we’ll have to agree to disagree on that, but I would appreciate it if you not oversimplify my position.

  343. My point is that iPad was a breakthrough product. It defined the category, and every tablet since the iPad has been a response to it, and an attempt to replicate what Apple did. Before the iPad nobody had come close to getting the form factor right. Nobody had come close to the set of ideas I outlined previously. Every tablet since the iPad has attempted the exact set of ideas that the iPad embodied.

    And we disagree on this. It is a bunch of incremental enhancements (including price — if you don’t believe the price point was really, really important, then I really don’t know what you are smoking).

  344. @Patrick

    You said:

    No. If one of the reasonably well-built Windows tablets had been priced below $500, it would have been selling like hotcakes, as well.

    I paraphrased as:

    Patrick’s point was that the only reason the pre-iPad Windows PC-tablet devices didn’t have success was that they were too expensive.

    How is that oversimplification?

    I believe this to be true (I know you don’t) but I doubt it’s falsifiable, so we’ll have to agree to disagree on that,

    Can you name even *one* pre-iPad tablet that implemented even *half* of the ideas I listed previously?

    It’s not just a matter of opinion. The evidence is all right there and very obvious to even a casual observer.

  345. Tom,

    I think Patrick is basically right. There is actually general agreement among the most prominient Apple ‘bashers’ here on this point: Apple executes very well. The iPhone and the iPad, as well as the various Macs, are well made goods which Apple manufactures according to a well executed set of strategies. Their position as making status goods is earned. That is why I put ‘bashers’ in quotes. I think that esr, Patrick and Jessica will agree with me on these points.

    However, I agree with you that the iPod, iPhone and iPad were breakthrough products. They defined the category. However, they were breakthrough products which came about through a bunch of incremental enhancements (including disintermediating the carrier in the case of the iPhone and the right price point for the iPad). This sort of breakthrough product through incremental enhancements happens all the time. Apple has been particularly good at this lately. Sony used to be much better than Apple. An example is the Walkman.

    Yours,
    Tom

  346. @Tom DeGisi

    I think Patrick is basically right. There is actually general agreement among the most prominient Apple ‘bashers’ here on this point: Apple executes very well. The iPhone and the iPad, as well as the various Macs, are well made goods which Apple manufactures according to a well executed set of strategies. Their position as making status goods is earned. That is why I put ‘bashers’ in quotes. I think that esr, Patrick and Jessica will agree with me on these points.

    I agree with you that Apple has executed well.

    However, I agree with you that the iPod, iPhone and iPad were breakthrough products. They defined the category.

    Right. That is basically the point I have been making.

    However, they were breakthrough products which came about through a bunch of incremental enhancements

    Yes a *lot* of incremental enhancements that together add up to something that is very obviously a different sort of product than anything we saw before. You said it yourself: they are breakthrough products that defined new categories. The iPad also isn’t just the sum of its advances, it is a fundamentally different vision of what a tablet should be.

  347. @ Patrick

    >For something designed to be field upgradeable, that’s a major design flaw.

    Those [major qualifications] you so dismiss out of hand are essential to the point, which is that you can not charge incompetence or evilness for a company deciding not to spend resources on something which they do not support. It’s possible to make tires that don’t go flat if you drive through a parking lot of nails. That doesn’t make Goodyear incompetent or evil for not designing my car’s tires that way. It’s possible to make a laptop that will survive a gunshot and horribly extreme environments. That doesn’t make Acer evil or incompetent for not designing my netbook that way. The only “field upgradeable” functionality the iPhone was designed for was from one stock firmware to the next. Apple is not evil or incompetent for not spending the resources to make the phone also work if you try to upgrade a non stock firmware with a stock firmware.

    >Which is perhaps a bit more forgivable, … LG is probably incompetent if it is easily bricked.

    And now you’re backing away from your initial claim which was “from my perspective, that the iPhone could ever be bricked is problematic. Absent any other extrinsic evidence … it is highly unlikely to be neither.”

    Now it appears to be that it’s only a problem that a device can be bricked if it’s not easy, and not flash constrained, and possibly not Apple. And this is where I think you and I are having our disagreement. I seriously think you let your general dislike of Apple’s policies translate into a higher standard for what they should do to protect people doing unsupported things from damaging their devices.

    >As has already been proven to more than my satisfaction by my daughter’s experience with her
    >own iPhone, every app download is potentially an OS corrupting event, and you can’t seriously claim
    >that Apple doesn’t support app downloads.
    >If Apple designs a product, the software of which is designed to be modified in the field hundreds
    > or thousands of times over the product’s lifetime by untrained personnel, and they didn’t design
    >the system such that the firmware is always recoverable, then they did a shitty job.

    No I don’t claim that, nor have I ever seen (or heard of for that matter) an app download on an iPhone corrupting or bricking the phone such that the phone wasn’t recoverable. What your initial complaint was over was corruption for non supported updates (jailbreaking) and then a subsequent update to the phone without accounting for the changes the user made, bricking a phone. I have never once heard of an app download bricking an iPhone.

  348. sorry, strike the not easy and not flash constrained and my statement makes a bit more sense.

    How about an edit function esr?

  349. @tom (either)

    http://twitpic.com/67ykpa

    That’s an amusing simplification that will annoy some here…probably because there’s too much truth behind the simplification. I’ve owned quite a few pre-iPad tablets and yeah, it really did redefine the category.

    @tom degisi

    There is actually general agreement among the most prominient Apple ‘bashers’ here on this point: Apple executes very well. The iPhone and the iPad, as well as the various Macs, are well made goods which Apple manufactures according to a well executed set of strategies. Their position as making status goods is earned.

    Really? Because esr harps on his opinion apple beaten on every metric by Android, uncompetitive and doomed to failure.

  350. @nigel:

    I was going to go on about how recognizing CamelCase is more like recognizing a phone number and not like parsing HTML to find a link or how Microsoft’s recognition of misspelled words establishes automatic/free-form recognition and attaching actions is an obvious step even if Microsoft hadn’t done it 1995 (which they may have) and so on, but I don’t need to. You’ve already conceded my broader point:

    Take a bunch of developers in 1996 and talk about automatic term recognition and you probably would have come up with the use cases that this patent solves as a natural extension of URLs in a browser.

    If the solution in question would have been obvious to someone with “ordinary skill in the art” at the time of invention, then it isn’t patentable (at least according to current definitions). That’s exactly what you’re describing.

    That you seem to think that Apple deserves the patent anyway is bizarre. On that topic, I’d suggest you consider the implications of a software industry where developers are continually asking whether anyone else has faced something similar to the problem they are facing and come up with a similar solution, but that’s a separate discussion.

  351. > The iPad also isn’t just the sum of its advances, it is a fundamentally different vision of what a tablet should be.

    No, it’s just the sum of it’s advances. It’s not a fundamentally different vision of what a tablet should be. I worked on a tablet in the 90′s, and it’s vision was not fundamentally different from the iPad.

    > Really? Because esr harps on his opinion apple beaten on every metric by Android, uncompetitive and doomed to failure.

    Yes. Really. Generally speaking, as far as I can tell, esr believes that open source provides definite benefits which Android realizes, and which no closed source solution, no matter how well executed, even by Apple, can match. Since this is esr’s life work, he will tend to dwell on it, perhaps more than you personally enjoy.

    Yours,
    Tom

  352. @Tom DeGisi

    No, it’s just the sum of it’s advances. It’s not a fundamentally different vision of what a tablet should be. I worked on a tablet in the 90?s, and it’s vision was not fundamentally different from the iPad.

    Which tablet did you work on?

  353. @ravi

    No I didn’t concede your broader point. I said that the USE CASE might be easily identifiable. Not the specific solution described in 647.

    I argue in the follow up that folks with ordinary skill in the art probably would have applied OO practices and implemented solutions that encapsulated behavior into the phone number object. That it seems most likely to me that it would not have been solved at a system level but at the individual application level.

    Whether I think that software patents is a good thing definitely is a separate issue. I think the current implementation is broken. I’m inclined to think that a good implementation is very difficult to do well so the best solution is to not have software patents and rely on copyright. I think that’s a shame because innovation in software is every bit as important and valuable as innovation in hardware and should be equally compensated for the inventor.

    The easy thing is to get browbeaten into stating that 647 is a bogus patent. The answer I’ll continue to give is “I don’t know…I haven’t spent the time to figure it out”. And given you aren’t paying me to think that much about it, “I don’t know” is a perfectly good answer.

    Again, it’s obvious today. But given that it isn’t computationally intensive why didn’t we see this kind of solution in the OS space prior? I don’t know. If we did, provide an example of pseudo natural language text processing and automatic external app behavior binding? I don’t know of one.

    Now 1-click…that seems pretty danged obvious but it has survived re-examination. Having been doing web stores around that time it’s one of those “Duh, why didn’t we think of that” moments. But we didn’t and neither did any of our tool set developers.

    It’s kind of amazing what folks with ordinary skill in the art don’t think about. We have deadlines to meet.

  354. Those [major qualifications] you so dismiss out of hand are essential to the point, which is that you can not charge incompetence or evilness for a company deciding not to spend resources on something which they do not support.

    You’re missing the point completely. The device is not flash-constrained, the cost of the bootloader ought to be around twenty cents or less, and it ought to be impossible to mess it up. Because it’s a general purpose computing device that can have apps loaded from whereever, and things can and do go wrong.

    It’s possible to make tires that don’t go flat if you drive through a parking lot of nails. That doesn’t make Goodyear incompetent or evil for not designing my car’s tires that way. It’s possible to make a laptop that will survive a gunshot and horribly extreme environments. That doesn’t make Acer evil or incompetent for not designing my netbook that way.

    That’s exactly my point with the router. It’s a specific point solution that is very cheap that most people never load any kind of new software on.

    The only “field upgradeable” functionality the iPhone was designed for was from one stock firmware to the next.

    This misses three points: (1) that a general purpose computing device is much easier to accidentally mess up, if not designed properly, than an embedded device, because not all the software pieces have been tested together under all conditions, (2) unlike the router manufacturers, Apple encourages and in some cases even requires (if they want to run certain apps) customers to upgrade firmware, and (3) the incremental cost of Apple doing it right would have probably been well under half of a percent of the product cost.

    Apple is not evil or incompetent for not spending the resources to make the phone also work if you try to upgrade a non stock firmware with a stock firmware.

    Actually, they would be if they didn’t spend the resources. The thing is, after researching it a bit, I’m not sure that they are bad in this way. Everywhere I searched for “bricked iphone” there were instructions on how to unbrick, that didn’t involve soldering irons or opening the package. So, unless someone can point me to a better source, I have to say that I haven’t seen anything that indicates that an iPhone can be bricked, in the correct sense of the word.

    Which is perhaps a bit more forgivable, … LG is probably incompetent if it is easily bricked.

    And now you’re backing away from your initial claim which was “from my perspective, that the iPhone could ever be bricked is problematic. Absent any other extrinsic evidence … it is highly unlikely to be neither.”

    I’m confused. If the LG is easy to brick, then they are probably incompetent, because they haven’t done anything to make me think they are evil.

    Now it appears to be that it’s only a problem that a device can be bricked if it’s not easy, and not flash constrained, and possibly not Apple.

    No, LG would be a problem. I think you misread. Not sure what you mean by “not easy.”

    And this is where I think you and I are having our disagreement. I seriously think you let your general dislike of Apple’s policies translate into a higher standard for what they should do to protect people doing unsupported things from damaging their devices.

    I think your assumption about what I think colors how you read what I write, and then you get sucked into confirmation bias about stuff I didn’t say, or at least didn’t intend to say. Cisco bricking would be somewhat bad, smartphone bricking would be worse. I thought I was pretty clear on that, and that’s true even just from a replacement price perspective.

    No I don’t claim that, nor have I ever seen (or heard of for that matter) an app download on an iPhone corrupting or bricking the phone such that the phone wasn’t recoverable. What your initial complaint was over was corruption for non supported updates (jailbreaking) and then a subsequent update to the phone without accounting for the changes the user made, bricking a phone. I have never once heard of an app download bricking an iPhone.

    I understood that the phone could be bricked. I am now questioning this understanding. But I have empirical evidence that bad software apps can screw up the OS. You put those two things together (screwed up OS, ability to brick phone) and it’s bad. But now, after my last search, I haven’t seen any evidence that what I would call bricking actually occurs, so if that’s the case then Apple is not guilty of anything in that category.

  355. @Nigel:

    > But given that it isn’t computationally intensive why didn’t we see this kind of solution in the OS space prior?

    Was it as necessary or useful before? The problem with bad patents is that they often reward the first person to encounter an easy problem, when they are supposed to reward the first person to solve a hard problem.

    There is a meme that I started trying to propagate a few months ago. True patent reform would include the following steps:

    1) The application would have to include a detailed statement of the problem(s) to be solved.
    2) The patent office would publish the problem statement immediately upon application.
    3) Anybody in the world could submit potential solutions to the problem to the patent office for a time period, say 3 months.
    4) All that submitted information would be considered obvious/prior art. Either somebody found prior art and submitted it, or it was so obvious they could solve it in a really short time period.
    5) The patent would not be be applicable to any problem domain that wasn’t immediately, blindingly, obviously (to one “skilled in the art”) related to one of the problems in the problem statement.

  356. Tom,

    > Which tablet did you work on?

    Oh man, my memory is not that good. I did get a nice trip to Silicon Valley for training. OTOH, you can tell I’m not really seeing what is so revolutionary about the iPad. It’s just a really nice tablet. That should be neither minimized, nor maximized. Making something nice and cheap will get alot more people to use it. That’s really important. It can even define the category – that is, dominate the market or be considered the gold standard. But is not revolutionary.

    Patrick,

    A three month competition for obviousness? Great idea! Now, what happens if someone comes up with an obvious solution that is not the same as the given solution? Does that mean the patent is granted? After all, the non-obvious patented solution might have benefits the obvious solution lacks.

    Yours,
    Tom

  357. @Tom DeGisi:

    Now, what happens if someone comes up with an obvious solution that is not the same as the given solution? Does that mean the patent is granted?

    Yes, to the extent the original solution is distinctly different from any of the submitted art, then the patent should be (at least partially) granted. But all the submitted solutions become part of the prior art that can never be covered by the patent.

    After all, the non-obvious patented solution might have benefits the obvious solution lacks.

    Sure, but the main problem with patents today is that somebody patents something really, really vague, and claims that it covers everything — basically that if you’re solving any of these problems in any fashion, then you’re necessarily infringing. Often, in practical terms, the patents cover the problems rather than the solutions, because they cover the entire solution space.

    By clearly delineating that which was obvious from that which wasn’t, people are now free to use the obvious approach, and can shell out money for the non-obvious approach if it is worthwhile to them. I think that’s eminently fair — it puts the patent holder in the position of being able to charge for anything that the patent discloses that wasn’t obvious at the time, which is practically the real stated goal of the patent system. What it doesn’t allow the patent holder to do is to use the doctrine of equivalents to claim that someone solving the problem by using one of the submitted obvious solutions is infringing the patent. In fact, it almost makes the doctrine of equivalents poison — if the patented solution is, in fact, identical to an obvious solution, boom! goes the patent.

    Bear in mind that (1) this peer review process couldn’t have worked very well in the past, before the internet, and (2) this needs to augment, not replace, the standard requirement to search for prior art. Not every published application will attract the requisite level of scrutiny.

    Oh, there’s another part to this meme I forgot. I really need to write it all down in one place and codify it, because I’ve presented it differently on different forums:

    6) The categorization (trove?) that the patent is submitted under limits its applicability. You can’t hide a drug patent by categorizing it as a new mechanical invention…

  358. Apple certainly popularized touch, but I was poking my smart phone a long time before iPhone.

    They didn’t just “popularize” touch, they made it a useful technology. The iPhone was the first (and for a while the only) smartphone which had the kind of precision and filtering that made not just touch, but gesturing, useful. And then of course there’s multitouch, which is pretty much entirely Apple’s IP.

    I read papers on gestures in college.

    But did you see any implementations of gesture technology that worked pert-near flawlessly and that people actually wanted to use?

    It’s not really that simple at all. There were lots of predecessors to the Apple stuff in all those categories that contained most of the design elements of any of those things. Unfortunately, they were generally made by small companies without sufficient financial clout to build and market them cheaply enough.

    No. Before the Macintosh (or perhaps the Lisa) any extant graphical interfaces were clunky as shit, including (especially!) the ones from Xerox.

    Virtually every last laptop sold in the past nearly 20 years is a clone of Apple’s 1992 PowerBook design. The trackpad front-and-center with the wrist rests on either side, the hinge way at the back — those are Apple design innovations which were unanimously adopted industry-wide.

    Your favorite applications have a File / Open menu item because of the 128K RAM limit in the original Mac. Seriously.

    You can think of the history of the personal computing industry as one in which a variety of companies produce clumsy, bulky, difficult-to-use prototypes, until one company at last integrates all the requisite technologies in such a way that they work together well, and in so doing defines an entire product category. After that the rest of the industry produces shoddy knockoffs of whatever that one company made, to try and fill the space of possibilities opened by that company in this product category.

    Except in this industry the product-defining company is always the same one: Apple. Betting against them is foolhardy because you’re basically betting against the driving force of the whole industry.

  359. @Jeff Read:

    > And then of course there’s multitouch, which is pretty much entirely Apple’s IP.

    Sorry, you lost me here. Perhaps you can qualify this statement a bit. As it stands, I’m not going to bother to read the rest of your post, because this is wrong.

  360. Can you name even *one* pre-iPad tablet that implemented even *half* of the ideas I listed previously?

    No? Nobody?

    Thought not.

  361. Tom,

    > > Can you name even *one* pre-iPad tablet that implemented even *half* of the ideas I listed previously?

    > No? Nobody?

    > Thought not.

    Have you thought for three seconds how much boring work you are asking people to do? With a really tiny payoff?

    Thought not.

    Yours,
    Tom

  362. @Tom DeGisi

    Have you thought for three seconds how much boring work you are asking people to do? With a really tiny payoff?

    People here are claiming that the iPad was preceded by other tablets that were substantially similar to it. Presumably they must have examples in mind. I’m just asking for them. Shouldn’t be any work at all.

  363. @Tom:

    > People here are claiming that the iPad was preceded by other tablets that were substantially similar to it.

    For the most part, people here arguing against you are claiming that the iPad consists of of some incremental improvements, and picking best-of-breed features from preexisting devices and tying it all together. But there is one significant (huge) innovation Apple made that I have acknowledged on other posts, but neglected to mention here. Steve Jobs has the balls to pick a date a couple of years out, and decide he’s going to ship a few million of something on that date. Everything else derives from that.

    Instead of asking, what incremental improvements can we make one at a time to sell a few more tablets, Steve asks at the start of the process, what set of improvements can we make to make this category mainstream. The rest is just engineering. Good engineering, to be sure, but engineering. Obviously it has to cost less. Obviously it has to be lighter. Obviously it needs to be tougher (seamless). Obviously it has to be easy to perform the sorts of tasks that people cuddling up with it on a sofa will want to do.

    The decisions are all synergistic. If we’re shipping X million tablets within the first Y months, we know the buy/build decision for this. We know the cost for the tooling for that. We can get the processor cost down to here. Etc. If the numbers don’t add up to the $500 price point, we’ll have to juggle things.

    So, having said that, I still think the price point is really important. I think a Windows tablet would have needed a bit lower price to sell as well simply because it probably wouldn’t have had some of the other incremental improvements you mentioned, but (for example) a Windows tablet in 2009 priced at $400 probably would have sold extremely well. I would have bought two if it would run Linux (I was very seriously looking at tablets at the time).

    they are breakthrough products that defined new categories. The iPad also isn’t just the sum of its advances, it is a fundamentally different vision of what a tablet should be.

    I don’t really think this is true, but I think it did get us there before we would have gotten there, because timid advances the way everybody but Jobs works (when you’re not confident enough of your vision to commit sufficient resources) would have taken a lot longer.

    But, if you go back and re-read my posts, the main point I have been making is that, in this process of taking the best of this and that and having the guts to say here is the final product — that is not protectable by patent, utility or design.

    Steve Jobs made a huge bet that a refined tablet would appeal to consumers. He won. That comes with first mover advantage, so he won big. But trying to block everybody else out of the market through litigation, rather than by repeating this feat, is contemptible behavior.

  364. Sorry, you lost me here. Perhaps you can qualify this statement a bit. As it stands, I’m not going to bother to read the rest of your post, because this is wrong.

    No, multitouch capacitive screens at mobile scale was developed pretty much by one company, FingerWorks, in the early 2000s. Apple acquired FingerWorks in 2005 to incorporate the technology into their iPhone and iPad.

  365. @Patrick

    that is not protectable by patent, utility or design.

    I am not making any arguments about patents or lawsuits. I agree that for the most part Apple’s lawsuits are probably without merit.

    All I am saying is that with the iPad Apple defined a new category of product, one that I attempted to describe in a previous post. If you look at the tablet market before the iPad you can find nothing that comes close to meeting the iPad’s vision of what a tablet should be. If you look at the market after the iPad is released you see that the market is suddenly teeming with products that are, to varying degrees, attempting to implement the iPad’s set of ideas (again, see my list).

    What that means to me is that every tablet since the iPad is a response to the iPad.

    Pre-iPad tablets are mainly ‘Tablet PCs’. They are pretty much Windows laptops with a touch layer added to them. They run the same old Windows with a some modifications. People would refer to them quite happily has ‘computers’. iPad is a fundamentally different category.

    Again, I am not making any points about lawsuits, I’m just saying, look, let’s admit here that Apple defined the category and that all these new tablets we are seeing exist as a result of trying to respond to what Apple has done with the iPad.

    And that’s not a bad thing. That’s how progress is made. We take what others have done and build on it. The iPad is the device on which all modern tablets are building.

  366. @Tom:

    This is the last time I am addressing this. You act like I don’t understand your argument. I do. I always have. I completely disagree. I am not taking any challenges, I am not explaining any more after this.

    > All I am saying is that with the iPad Apple defined a new category of product,

    And there we disagree. That product category was slowly, inexorably coming. Apple certainly sped up its arrival.

    > What that means to me is that every tablet since the iPad is a response to the iPad.

    Every time a market is proven, competitors will jump in. There is no doubt that Apple proved the market.

    > iPad is a fundamentally different category.

    No, enough small quantitative differences add up to something that feels qualitatively different, but seriously, we were getting there.

    > The iPad is the device on which all modern tablets are building.

    No, if that were true, then Apple surely would have real patents.

  367. @Jeff Read:

    No, multitouch capacitive screens at mobile scale was developed pretty much by one company, FingerWorks, in the early 2000s. Apple acquired FingerWorks in 2005 to incorporate the technology into their iPhone and iPad.

    Fingerworks was pretty innovative, but they weren’t Apple. It will be interesting to see how well their patents hold up in the Samsung action.

    No. Before the Macintosh (or perhaps the Lisa) any extant graphical interfaces were clunky as shit, including (especially!) the ones from Xerox.

    I agree that the Lisa was innovative, although I used some high-end CAD stations that worked pretty well before that. I was mainly disagreeing with the before/after iPhone comparison.

    Virtually every last laptop sold in the past nearly 20 years is a clone of Apple’s 1992 PowerBook design.

    As with the Fingerworks touchscreen stuff, one of Apple’s design strengths is going out and finding extant nascent technologies and capitalizing them. But they didn’t invent either the touchscreen stuff or the touchpad.

  368. @Patrick

    I am not taking any challenges, I am not explaining any more after this.

    Ok, but I’m going to have the last word.

    I have enumerated a very specific set of ideas and features that I believe defines the category the iPad created.

    You have claimed that the iPad is only a incremental advance, that the industry was getting there anyway, and that the iPad is fundamentally the same type of device as the Windows tablet PC type devices.

    If that is true, there should be some pre-iPad devices that embody a significant percentage of the ideas I outlined. I have looked. I can’t see any. I have asked repeatedly here for examples and none are forthcoming.

    What this means is that there is no evidence that the industry was ‘getting there’.

    After the iPad was released however, we all have absolutely no trouble at all naming numerous tablets that demonstrate almost the exact set of ideas I listed above.

    The evidence is clear:

    Pre-iPad: no products even remotely close to having a significant number of items on my list
    Post-iPad: market is awash with such devices

    The conclusion is obvious. iPad was a watershed moment.

  369. # Tom Says:
    > The conclusion is obvious. iPad was a watershed moment.

    For sure. However if the set of features in an iPad is I and the set of features before the iPad was B, and you say “to prove iPad was not revolutionary show me a pre-cursor with a significant number of the set I – B, then you are rather begging the question.

    Nonetheless, I think “watershed” is a fair description to apply to iPad, for many reasons beyond the purely technical. But does that mean that Apple has the right to stop anybody else innovating because they have a government enforced monopoly on what they have done? Does it mean they have the right to buy up a bunch of government monopolies from an old broken down company, and enforce them too? No sensible person would question whether Apple has made a big contribution to the evolution of personal computing, but what I question is what that means, what special right does that grant them? Would they have innovated less had they not had patent protection. I think not, and the plain fact is that their goal with their patent portfolio is to prevent others from making even more evolutionary changes to the iPad like devices. Why is that a good thing? Are you concerned about their profitability?

  370. @Jessica

    But does that mean that Apple has the right to stop anybody else innovating because they have a government enforced monopoly on what they have done?

    No. And I’ve said that all along. I am just saying what I, and most other people, think is obvious, namely that the modern tablet category was defined by the iPad, and that all the subsequent tablets are a response to that initial definition.

    This whole tangent of conversation started when I said:

    Although I don’t think Apple is in the right on most of its IP lawsuits, I can certainly sympathise with the view that they have been widely copied. I don’t think there is much doubt that Apple invented the tablet category as we know it today.

    I thought I was making a relatively uncontroversial assertion there, but it seems Patrick and a few others had different ideas.

  371. @Jessica Boxer

    Does it mean they have the right to buy up a bunch of government monopolies from an old broken down company, and enforce them too? Does it mean they have the right to buy up a bunch of government monopolies from an old broken down company, and enforce them too?

    If FingerWorks had a right to the patent(s) on the multitouch technology it created, then it had the right to sell that right. Whether it was “old” or “broken down” is irrelevant to the question of “Is the technology FingerWorks created patentable?”

    You seem to be suggesting that patents are only for very profitable companies, and once a company’s financial situation degrades below some undefined level, it can no longer expect legal protection to defend its inventions. Only rich, healthy companies can use patents? You’re better than this.

  372. Tom,

    > Shouldn’t be any work at all.

    Think about what you said and what I said. Your challenge requires comparing long feature lists. It’s a metric ton of work.

    Yours,
    Tom

  373. P.S. One of the Windows tablets would have needed only three matching features to be *more* compelling than the iPad. 1-price. 2-battery life. 3-size.

  374. The Monster Says:
    > You seem to be suggesting that patents are only for very profitable companies,

    I was referring to Nortel. And if you think “I favor patents only for rich companies,” I can only think you have never read any of my comments on patents.

    In case you are unclear, I think patents are pure unadulterated tyranny.

  375. @Tom DeGisi

    Think about what you said and what I said. Your challenge requires comparing long feature lists. It’s a metric ton of work.

    I think you are missing the point. The claim was made that similar products existed. Assuming the person making this claim had evidence in mind, and wasn’t just blowing hot air, they already know the products. A quick glance at my list will be enough to confirm whether they qualify.

    P.S. One of the Windows tablets would have needed only three matching features to be *more* compelling than the iPad. 1-price. 2-battery life. 3-size.

    Which one?

  376. @Jessica

    In case you are unclear, I think patents are pure unadulterated tyranny.

    I’m interested in this. Putting aside the specifics of Apple/Google/mobile patents for a moment, is it your position that the patent system should be scrapped completely? Or do you think that patents can serve a purpose, but that the system needs reform? Is it just software patents or patents in general?

    Does this extend to other IP such as trademarks and copyrights?

    I’m not trying to start another argument here, but I have been thinking about this subject recently and I would like to hear opinion.

  377. Tom,

    > A quick glance at my list will be enough to confirm whether they qualify.

    I don’t think so. Matching feature lists is not quick. First you have to find the feature lists to compare. This takes forever. Googling for feature lists is not fun. I’ll tell you what. If it is so easy, you do it, and show us how. Generally speaking, I dislike arguments where the arguer invites the people he is arguing with to do a lot of work. To make your point where you do the work, pick the seven top selling tablets which are not iPads before the iPad came out and compare their features to your list.

    However, this will not convince either Patrick or I that the iPad is revolutionary. A list of tablets which each have one of the features in your list, even if not well implemented would satisfy us. Finding out the best features available and combining them is what Apple does well. And any product that does that with a bunch of good features first will define a category.

    > Which one?

    Any Windows tablet.

    > I’m interested in this.

    I’d say no patents, and no FDA also. Actually I would like to abolish the entire Federal Department of Agriculture. Kansas is perfectly capable of regulating agriculture. We need neither assistance nor interference. Trademarks are good. Copyright should be seven years, renewable once if sales have reached some dollar minimum.

    Yours,
    Tom

  378. @Tom DeGisi

    I can hardly believe you are serious about the Windows Tablet PCs. None of the models I can see match one or two of the items on my list *at most*.

    Windows Tablet PCs don’t have an OS made specifically for the tablet/touch form factor from the ground up. It’s just Windows with a touch layer. They use a stylus for input. They are not small and lightweight. They don’t use multi-touch. THey don’t have an app centric model with integrated app store. Most of them aren’t slates, they are converted laptops. They don’t recognise the tablet as a new category, they are PCs with an added touch feature (note that the device even has ‘PC’ in its name!).

    These things are fundamental to the category that the iPad defined. Windows Tablet PC isn’t even in the same ballpark.

    I’d say no patents, and no FDA also. Actually I would like to abolish the entire Federal Department of Agriculture. Kansas is perfectly capable of regulating agriculture. We need neither assistance nor interference. Trademarks are good. Copyright should be seven years, renewable once if sales have reached some dollar minimum.

    OK, interesting. What’s your reasoning?

    What is the FDA connection? Sorry, I’m from the UK. Not too familiar with this organisation.

  379. Bah. Sorry, messed up the blockquotes. Just disregard the outer set.

    Also, the second sentence doesn’t make sense. I think I need more coffee.

  380. @Jessica Boxer

    In case you are unclear, I think patents are pure unadulterated tyranny.

    I am not in the least bit unclear. I think you missed my point, which is that the way you chose to argue your opposition to Apple buying an “old broken down” company and thereby gaining its rights suggests that a company in poor financial health somehow does not deserve patent protection, which logically suggests that rich companies do. But you’re NOT arguing that. It’s a complete non sequitur, and has no place in the argument.

    Either FingerWorks deserves its patent rights or it doesn’t. If it does, then Apple, as the new owner of FingerWorks, deserves those rights. Whether an inventor deserves a patent is completely orthogonal to the financials of the company he works for/sells the patent to.

  381. The Monster Says:
    > Either FingerWorks deserves its patent rights or it doesn’t.

    Again, I was referring to the Nortel purchase, not FingerWorks. And once again you are incorrect, the two are not necessarily married. For example, one can imagine a world in which inventors had the right to a patent, but that that right was non transferable, and non inheritable. A world, I might add, that would be better than the one we have today.

    Imagine, for example, the USSC took literally the patent and copyright clause of the constitution, and granted the exclusivity only to the inventors and artists — the people, not their employers — and that as a consequence these rights were not transferable or inheritable. For sure, the world would be a very different place.

  382. # Tom Says:
    > Is it your position that the patent system should be scrapped completely?

    Yes. All patents both historical and going forward. Immediately.

    > Does this extend to other IP such as trademarks and copyrights?

    No. Calling them “IP” is to concede the argument. And calling them IP is to suggest that the four things traditionally put under this banner are the same, when they are all completely different. They are different animals, and none of them bear many of the intrinsic characteristics of traditional property. To call them IP is simply speaking, spin.

    Copyright I am ambivalent on. I dislike it a lot, but I also understand that there is some legitimacy to the argument. However, it is certainly taken way too far.

    Trademarks are a completely different thing. Their legitimate purpose is essentially to prevent fraud. If I make a fizzy drink and call it Coca Cola, I am perpetrating a fraud that it is made by a company in Atlanta rather in my garage. That is a fraud. However, trademark law is also taken too far.

    The last traditional item under IP is trade secrets, and that is simple, if you don’t want anyone to know, don’t tell them.

  383. @Jessica

    Yes. All patents both historical and going forward. Immediately.

    OK, but why? It’s the reasoning I’m really interested in here.

    As I understand it the point of patents is to promote innovation and encourage sharing of information about inventions. Therefore we should in theory be able to settle the question empirically, given good enough evidence. Given two otherwise comparable societies, one with patents and one with none, which one is more innovative? Or, is the same society more innovative before or after a patent system is introduced?

    I wonder if anybody is aware of any such evidence?

    I think the best argument for patents I have heard is that without them inventors would have to rely on keeping secrets. This being the case we would probably not have the degree of public sharing of information that we have today. At least with patents the whole of humanity eventually gets to freely use all inventions.

  384. # Tom Says:
    > Given two otherwise comparable societies, one with patents and one with none, which one is more innovative?… I wonder if anybody is aware of any such evidence?

    Lets just get our terms clear. Patents are a government enforced monopoly that prevents people from doing things that they would otherwise be at liberty to do. Patents take away people’s liberty. Now, there are circumstances under which that is a necessary evil. However, this fact means that it is not a “patents make society 1% more innovative” kind of a thing. They have to hit it out of the ballpark before we should be willing to subject ourselves to such a gross imposition on our liberty.

    Having said that, I have been banging on about patents for years, and no-one has every offered a scientific study that gave much evidence in favor of patents. Part of that is the nature of the beast, it is a hard thing to measure. Recently, my senator Dick Durbin — God help us — was banging on in congress about a study that demonstrated that patents actually decreased innovation in the drug industry.

    You have to step back and think about this for a moment. The drug industry is the poster boy for patents. Without patents we are told we would have no new drugs. And here this study shows that patents decrease innovation in that industry!

    How is this possible? Well to save repeating myself, let me refer you to a comment I have made before on this.

    If the patent guys want to rob us of our liberty to create new products the onus is squarely on them to provide compelling evidence. As far as I know, they have never done so.

  385. And once again you are incorrect, the two are not necessarily married. For example, one can imagine a world in which inventors had the right to a patent, but that that right was non transferable, and non inheritable.

    So the only inventors who can commercially exploit their Better Mousetraps are those who are already personally wealthy enough to bankroll an investment in producing them? It’s funny, you know, usually it’s the statists who want to say that something that’s not only hunky but a little bit dory suddenly becomes evil and should be illegal if money changes hands.

    If I have a right to be compensated for something, but can’t transfer that right to someone else, then I don’t really have it at all. And having a patent expire along with the inventor is bad news too. Suppose John Q. Inventor has enough assets that he can mortgage his house to finance his invention. You’re telling me that if he gets hit by lightning, the company loses its patent? It’s not too far-fetched to imagine a big company wanting to literally kill its competition and finding a way to launder some money for the hit man to do just that.

    If we are going to have patents, we actually have to have them. I know you hate patents, so perhaps you’re arguing for this perverse half-assed patent regime precisely because you know it wouldn’t work, and you’re hoping the result would be to do away with them altogether. Of course, it never works like that. When a half-assed regulatory system fails spectacularly, it is always self-evident to law-makers that the way to fix it is to make a bigger ass out of the system. Every time.

  386. Monster: now you’re just being silly Assassination? Really? Please don’t lecture me about the free market. Patents have nothing to do with the free market, they are government granted monopolies, they are the opposite of the free market.

    I don’t think that a half assed patent system would be as good as no patent system, but it is better than the horse’s ass version we have right now. Tyranny grows like the grass, slowly, inexorably, one needs to run a lawnmower over it occasionally to cut it down to size. But even when you have done that, it still continues to grow.

  387. TomM,

    > I can hardly believe you are serious about the Windows Tablet PCs. None of the models I can see match one or two of the items on my list *at most*.

    I’m making a different statement, outside your list. I like Windows. I had a Windows Mobile Touch Phone. It was great. A Windows tablet is *more* compelling than an iPad because it will run Windows programs using the Windows UI. These things depend on what you are used to. I can’t use Apple products (without frustration) because they don’t follow the UI conventions I have learned.

    > They are not small and lightweight.

    Yes, that’s why I specified that the new Windows tablets would need a different size. They would need to be small and lightweight.

    > What is the FDA connection?

    It’s kind of a digression on the digression. The Food and Drug Administration regulates drugs here. They prevent life saving drugs from being made. I’m thinking that the combination of getting rid of patents and eliminating our national regulatory body will result in more useful products. Our states can regulate drugs instead. Fifty different states will result in new ideas on how to regulate drugs.

    Yours,
    Tom

  388. @Jessica

    Lets just get our terms clear. Patents are a government enforced monopoly that prevents people from doing things that they would otherwise be at liberty to do. Patents take away people’s liberty. Now, there are circumstances under which that is a necessary evil. However, this fact means that it is not a “patents make society 1% more innovative” kind of a thing. They have to hit it out of the ballpark before we should be willing to subject ourselves to such a gross imposition on our liberty.

    Ok. Let me see if I have this right. It is your contention that patents deprive people of liberty, specifically the liberty to take an invention made by somebody and then either compete with it directly or build on top of it to further innovate. Presumably the last part of your argument is that as a result of this lack of liberty we end up with less innovation, and that’s why taking away this liberty is detrimental. Is this right?

    Let me just put this point into a wider context. I started by framing the question as: if we knew that, overall, patents increased innovation then we could conclude that they were a good thing. It seems to me that this still holds. Although people are deprived of the freedom to take inventions and build on them it still might well be the case that – overall – innovation increases.

    So, your point is well taken, but I think it does not alter the framing of the question as whether innovation is increased. Do you agree with this?

    Of course, I’m not saying, that patents *do* increase innovation overall. I’m just saying, are we asking the right question here?

    To more directly address your point about a deprivation of liberty, I think it is also worth pointing out that without a patent system it is quite likely that people would not have had the liberty to build on inventions anyway. This is because rather than publishing details of their inventions inventors would have to keep secrets. Thus, the liberty that patents take away might not have existed anyway.

    Now, obviously I am talking about an idealised patent system here that awards patents fairly and reasonably. We definitely don’t have that at the moment.

    Also, do you happen to have a link to the study you mention? I would like to take a look at that.

    @Tom Degisi

    I’m making a different statement, outside your list. I like Windows. I had a Windows Mobile Touch Phone. It was great. A Windows tablet is *more* compelling than an iPad because it will run Windows programs using the Windows UI. These things depend on what you are used to. I can’t use Apple products (without frustration) because they don’t follow the UI conventions I have learned.

    You are basically saying that you personally like the Windows tablets. Well that’s fine, but it has nothing to do with whether the iPad defined a new category. It’s not about what you like or what I like, it’s about the fact that the iPad embodies a vision of a product that did not exist at all before its release, and was widely replicated after its release.

    Fifty different states will result in new ideas on how to regulate drugs.

    I see. Well I suppose as long as they are regulated by somebody, and we know that large government bureaucracies tend to be highly inefficient so it seems to make sense to split it up.

  389. Tom,

    > Presumably the last part of your argument is that as a result of this lack of liberty we end up with less innovation, and that’s why taking away this liberty is detrimental. Is this right?

    Not for me. Taking away liberty is always detrimental. Liberty is valuable in and of itself. Innovation is also valuable in and of itself, but less so. It may be that the body politic so desires the fruits of innovation that it is willing to restrict liberty to get it. That is reasonable. However, one should note that the people getting the benefits are not necesarily the people whose liberty is restricted. Forcing other people to give up liberties you don’t care about so you get things you want is rather unethical, is it not?

    > This is because rather than publishing details of their inventions inventors would have to keep secrets.

    Ah, but if they sell a product or perform a service based on their secrets they immediately start revealing them. In most cases you only have to reverse engineer the product. In others, such as drug manufacturing, where the secret is in how to make the substance, you can’t reverse engineer the process without some industrial espionage. However, even in that case you know that the substance can be made, and you even can figure out a good estimate for how much it should cost to make. This is a big leg up.

    So no, I disagree with you that secrecy protects ideas much at all. If it had, since they never gave out the source code, Visicalc would still be the number one spreadsheet.

    > Now, obviously I am talking about an idealised patent system here that awards patents fairly and reasonably. We definitely don’t have that at the moment.

    Only God could award patents fairly and reasonably. I am saying that patents are another situation where we are hitting the information problem. Human beings cannot administer patents well because no human can know enough to do so.

    > Well that’s fine, but it has nothing to do with whether the iPad defined a new category.

    Yes it does. My contention is that a Windows tablet with the price, battery life and size of the iPad, not your long list, would have defined a new category.

    Yours,
    Tom

  390. # Tom Says:
    >So, your point is well taken, but I think it does not alter the framing of the question as whether innovation is increased. Do you agree with this?

    The patent argument claims a trade off between increased wealth due to patents, and a decrease in liberty due to patents. Where you draw that line is a matter of disagreement with different people. I’m with Tom DeGisi, placing the line way in favor of liberty, but many might disagree. All I’m saying is that the pro patent people have to climb a high wall to make a convincing case. The onus is on them.

    However, that assumes that the trade off is valid, and I don’t know why one would think it was, aside from the conventional wisdom argument. There isn’t any real data to support it that I know of. On the contrary.

    > This is because rather than publishing details of their inventions inventors would have to keep secrets.

    You know that is the grand bargain argument that patent law claims to make. However, in practice it just isn’t true. if you haven’t already, I suggest you try reading the text of some patents to see why. The way modern patents are written they just don’t tend to give any useful information that you couldn’t see in ten minutes looking at the product. Furthermore, if you have ever had to really plow through the text of a a bunch of patents, which consist of hundreds of pages of deliberately vague, technical, turgid legalese, with fuzzy badly drawn diagrams, and full of legal terms that mean almost the opposite of what they say literally, you would know that most creative people would rather shoot themselves in the head than read them, or, better, just start afresh. The only people who really read patents are lawyers.

    > Also, do you happen to have a link to the study you mention? I would like to take a look at that.

    Here is a starting point.
    I’m not making any claims the study is definitive, but its mere existence is interesting.

  391. @Tom DeGisi

    Not for me. Taking away liberty is always detrimental. Liberty is valuable in and of itself.

    Is this really true? Some liberties are undesirable. The liberty to murder, for example. Or the liberty to commit tax fraud. Some liberty is bad.

    Liberty is valuable to the extent that it allows us to do good things. An absence of patents would grant people more liberty to take what others have done in the short term and might arguably lead to more innovation. But if the net change in innovation is negative then that liberty has served no purpose.

    It’s rather like the free market. The free market is not an end in itself. It is a tool for wealth creation. The reason we have a free market is that we can increase everybody’s standard of living. But the free market doesn’t care about standards of living, so it might sometimes be necessary to regulate it to bring it into line with our interests.

    Nobody benefits from the mere fact of a free market, it is what the market produces that is valuable. It is the same with liberty. Liberty is good because it is the best way we know for people to live maximally good lives. Liberty produces a diverse range of ways of life, of thoughts, of art, of every product of human endeavour. But it is sometimes the case that pure unadulterated liberty can have a negative impact on people’s lives.

    The point is that you have to look at the consequences. And if the consequences of denying some people a certain liberty is a net gain for humanity then it is justified. Liberty doesn’t get any bonus points for just being liberty. Does it?

    However, even in [the case of drugs] you know that the substance can be made, and you even can figure out a good estimate for how much it should cost to make.

    I think this is a bit weak. Knowing that a drug can be made is a very far cry indeed from knowing how to make it. I think that drugs are an excellent example of how persuading inventors to release details of their inventions is a huge gain for humanity. Eventually we all get these drugs at very low prices. Without patents their secrets might remain locked away forever, and we would have to carry on paying inflated prices.

    @Jessica

    The patent argument claims a trade off between increased wealth due to patents, and a decrease in liberty due to patents. Where you draw that line is a matter of disagreement with different people. I’m with Tom DeGisi, placing the line way in favor of liberty, but many might disagree.

    You almost make it sound like it’s just a matter of personal feeling, and that there is no objective way to determine the best state of affairs.

    You know that is the grand bargain argument that patent law claims to make. However, in practice it just isn’t true. if you haven’t already, I suggest you try reading the text of some patents to see why. The way modern patents are written they just don’t tend to give any useful information that you couldn’t see in ten minutes looking at the product. Furthermore, if you have ever had to really plow through the text of a a bunch of patents, which consist of hundreds of pages of deliberately vague, technical, turgid legalese, with fuzzy badly drawn diagrams, and full of legal terms that mean almost the opposite of what they say literally, you would know that most creative people would rather shoot themselves in the head than read them, or, better, just start afresh. The only people who really read patents are lawyers.

    I agree with you, and I have unfortunately tried to read patents in the past. However, this is a criticism of our current implementation of patents, rather than the idea of patents in general, is it not?

    @Tom DeGisi

    Yes it does. My contention is that a Windows tablet with the price, battery life and size of the iPad, not your long list, would have defined a new category.

    Maybe it would have, maybe it wouldn’t. But one thing’s for sure, whatever new category this product might or might not have created would *not* have been the category the iPad created, and it would not have been the category that is now seeing such success.

  392. >Liberty is valuable to the extent that it allows us to do good things.

    You are deeply confused. Liberty is not the situation of being “allowed” to do good things, it is what we have when others do not interfere with our choices (whatever they are) by force. Not being coerced is a good in itself, regardless of what we do with that liberty. This is how the framers of the U.S. constitution and their antecedents in classical liberalism and the English republican tradition understood “liberty”.

    Putting aside the history for a moment, one reason this definition is better than what you are implicitly proposing is that it is much easier to agree on what constitutes coercion than what constitutes “good”.

  393. Tom Says:
    > Is this really true? Some liberties are undesirable.

    Indeed. However, most libertarians would indicate that my liberty ceases when it impinges on your liberty. This is a rule that is not always easy to apply, but the world is complicated.

    > Liberty is valuable to the extent that it allows us to do good things.

    See this is where we part ways. Liberty is not a means to an end, it is the end itself. Freedom to live your life the way you want, freedom to choose your own destiny. Freedom to speak your mind. Freedom to have relationships with others in a form and fashion suitable to you both. Freedom is the most valuable good of all.

    A child under their parents has all they need, and is free to do all the great things they want, within reason. But who wants to be a child? A rich person under the micromanagement of his government simply lives in a golden cage.

    > It’s rather like the free market. The free market is not an end in itself.

    Again, I don’t agree at all. The free market is an end in itself. The free market is the right to associate in commerce and intercourse with whomsoever you wish, in whatever manner you wish. Freedom is the point, not a mechanism.

    So I’d say that freedom and liberty are the most important things of all. The fact that it is the system that is most spectacularly beneficial to all should be no surprise to anyone who believes in the human spirit, the raging passion to grow from the jungle to the space station, from the cave to the shiny spires of our great cities. It is the freedom to succeed that inspires us to take risks and fly without a net, and it is the freedom to fail that is the crucible of excellence. Take away the net and we are monkeys in a zoo.

    as the say in New Hampshire: Live free or die.

  394. Tom,

    > Liberty is valuable to the extent that it allows us to do good things.

    This is what the Puritans said. I know a bit about Cromwell and a bit about the Puritans who migrated to Massachusetts. It’s probable, given that you are from the U.K., that you know a lot more about Puritans than I, but I am unfamiliar with the state of education when you were educated and what you have done since then. Neither my primary, my secondary nor my college studies taught me much about Puritans. I am afraid that I am mainly self taught. I am also unfamiliar with your religious background. Are you a Puritan?

    Myself, I would like to live in a community populated and governed solely by Puritans, provided that any single member of the community could secede. In that case the ex-member’s property would cease to be under the jurisdiction of the government, and the ex-member what have the right to travel through the community to get to other communities freely. As you can see, I value liberty very highly. But your mileage may vary.

    > whatever new category this product might or might not have created would *not* have been the category the iPad created

    It wouldn’t have been far different. Multi-touch and fast ubiquitous internet would have been added almost immediately, for example.

    Yours,
    Tom

  395. @esr

    You are deeply confused. Liberty is not the situation of being “allowed” to do good things, it is what we have when others do not interfere with our choices (whatever they are) by force.

    As a matter of fact both concepts of liberty (positive and negative) exist in political philosophy, but in any case you misread what I wrote. I didn’t say that liberty was the condition of begin allowed (as in, ‘granted permission’) to do something, but rather that the condition of liberty allows (‘enables’) us to do things.

    Not being coerced is a good in itself, regardless of what we do with that liberty. This is how the framers of the U.S. constitution and their antecedents in classical liberalism and the English republican tradition understood “liberty”.

    As a Brit I won’t presume to lecture you on the US Constitution, but I can tell you something about classical liberalism. If you read On Liberty you’ll find as good an argument for liberty as you’re likely to find anywhere. We have individual liberty broadly for two reasons. The first is to act as a check on government power and the power of the majority over the minority. The second is that it is impossible for any government to reliably determine by itself the best way for people to live. Mill didn’t just say ‘we should have a free society, because … well … we just should!’ No, liberty is the best way we have to create a good and just society.

    I think that because freedom was such a foundational element in the creation of the US Republic, liberty has become an article of faith for a lot of Americans. You all loudly agree you need it, but a lot of people have forgotten that there is actually a reason for needing it.

    @Jessica

    Indeed. However, most libertarians would indicate that my liberty ceases when it impinges on your liberty.

    But in each case you must make a value judgement as to who is impinging on who. For example, if somebody owns some land, and another person trespasses on it, you might say ‘well that person is impinging on the land owner’s freedom to own land, therefore we need a trespass law’. But the other person might just as well be saying ‘this person owning land is impinging on my freedom to walk around unhindered. We need to abolish land ownership!’

    In actual fact this dispute is not helped by ‘my liberty ceases when it impinges on your liberty’. You need to go outside that idea and decide how society is best served. Most societies will end up agreeing that land ownership is important for a stable and prosperous society to flourish for a number of reasons I won’t go into here. But suffice it to say none of them is liberty.

    The fact that it is the system that is most spectacularly beneficial to all should be no surprise to anyone who believes in the human spirit, the raging passion to grow from the jungle to the space station, from the cave to the shiny spires of our great cities. It is the freedom to succeed that inspires us to take risks and fly without a net, and it is the freedom to fail that is the crucible of excellence.

    Right! And you’ve just given a good reason why we have liberty. It allows us to pursue endeavours that benefit humanity. Governments can’t reliably decide which ones will succeed or fail, nor can they choose the people who have the most passion and drive to take on these endeavours. It is a much better system to let everybody pursue the endeavours they are passionate about and see which ones succeed and accept that their will be failures. But liberty isn’t the end in itself, it’s that it creates an environment that is conducive to achievement, a ‘crucible of excellence’ as you put it.

  396. that their will be failures.
    </blockquote

    that *there* will be failures. God, how embarrassing.

    It’s probable, given that you are from the U.K., that you know a lot more about Puritans than I, but I am unfamiliar with the state of education when you were educated and what you have done since then. Neither my primary, my secondary nor my college studies taught me much about Puritans. I am afraid that I am mainly self taught. I am also unfamiliar with your religious background. Are you a Puritan?

    No, I’m not a Puritan. I’m an atheist. If you want to know my educational background, it’s mainly in the classics and humanities, and I have a BA in philosophy. Since then I have become a self-taught programmer.

    I can’t say know a huge amount about puritanism, and it has never been featured much in my education at any point.

  397. Tom,

    You can be an atheist with Puritan attributes. We have lots of those in America. Some environmentalists are pretty Puritanical. To translate Winthrop for many leftists:

    “if you stand for your natural, corrupt liberties, and will do what is good in your own eyes, you will not endure the least weight of authority. . . . But if you will be satisfied to enjoy such civil and lawful liberties, such as society allows you, then you will quietly and cheerfully submit under that authority which is set over you . . . for your good.”

    And for many environmentalists:

    “if you stand for your natural, corrupt liberties, and will do what is good in your own eyes, you will not endure the least weight of authority. . . . But if you will be satisfied to enjoy such civil and lawful liberties, such as is good for the planet, then you will quietly and cheerfully submit under that authority which is set over you . . . for your good.”

    Yours,
    Tom

  398. >Mill didn’t just say ‘we should have a free society, because … well … we just should!’

    Mill’s thinking was in some respects primitive. His modern successors (one of which is me) would make a much sharper claim. “We should have a free society, one which minimizes coercion, because that is the choice that minimizes actual pain and injury and death inflicted on actual people.” There is no need to justify the minimization of coercion in any other terms that that we are minimizing coercion.

    >You need to go outside that idea and decide how society is best served. Most societies will end up agreeing that land ownership is important for a stable and prosperous society to flourish for a number of reasons I won’t go into here.

    It is not necessary to go “outside” the idea of minimizing coercion to justify property rights, and “society” does not enter into the proof. See my discussion of territoriality as a way to minimize intra-species violence – why your dog knows where your property is – in Homesteading the Noosphere.

  399. “Puritanism – the haunting fear that someone, somewhere, may be happy.”
    Henry Mencken

    “You can protect your liberties in this world only by protecting the other man’s freedom. You can be free only if I am free.”
    Clarence Darrow

  400. Again, I don’t agree at all. The free market is an end in itself.

    Not exactly. The free market is an instantiation of human liberty, which is the actual end in itself. We may be quibbling about terminology at this point, but I think it’s important not to think of “free market” as somehow a separate thing from “liberty”. It is not possible to have liberty and yet not have a free market. That’s why I don’t call the Left “liberals”. There’s nothing liberal about them.

  401. The Monster,

    I’m trying to teach myself to avoid the word market and just use freedom and liberty for just that reason.

    Yours,
    Tom

  402. The Monster Says:
    > Not exactly. The free market is an instantiation of human liberty

    I don’t entirely understand your quibble. But, perhaps in terms appropriate to this blog, the free market is free as in speech not as in beer.

    I never much cared for the term “capitalism”, and “laissez faire” always struck me as rather pretentious.

    However, I should say that “the free market” is really coming to be used to mean a lot of other things that really aren’t free markets. I was struck by this recently when I read an article about why amazon doesn’t make the Kindle in the USA. The basic answer was that we don’t have the manfacturing capability to do so, and we have sent it overseas and improved it overseas to the point where we just don’t have the capabilities and skills in this country to do so. Its not that we don’t have it anymore, it is that we never had it because we advanced the state of the art so far overseas that we might as well be chipping flint arrowheads here.

    I was thinking about why the USA is an economic superpower, and I really believe that the main reason was the free market we used to have. America was the matrix and the nexus of a gigantic proportion of all the worlds’ innovative efforts. Why? Because we could. Because we were allowed to. Because we could try things and succeed and we could try things and fail.

    But that is not true any more, or a lot less than it used to be. We really are living in the afterglow of our own greatness, sinking in the mire of our own stupidity and decadence.

    For me, “too big to fail” is perhaps the most cancerous government doctrine I have heard in my lifetime. As I said before (and I repeat because I really like the turn of phrase) the freedom to fail is the crucible of excellence. To treat us all like children — stay back from the fire it is hot in there — is to rob us of the greatest teacher of all — failure. It is possibly the poison that will finally kill our economy.

  403. You know this too big to fail thing is part of a bigger trend, just as poisonous. It is the neotenization of our society, which I alluded to above. This morning I bought a plastic water cup to sit on my desk. Inside the cup was a little card, it said:

    * Do not overfill
    * Do not use in microwave
    * Do not place product on stove top or other heating source
    * When filled with hot liquids, keep out of reach of children.

    Seems like good advice for five year olds.

    If we put labels like that in everything, how will Darwin ever cull us of our stupidity?

  404. Could anyone give a good definition of a frre market?

    But one that is historical meaningful, works with humans, some of which have weapons and some will not stop at fraud or violence?

    The only examples I know were protected by walls and weapons.

  405. >Could anyone give a good definition of a frre market?

    A free market is what you have when nobody is interfering with voluntary transactions by force.

    Free markets often have to be protected by walls and weapons. This does not make them unfree, it makes them defended.

  406. I don’t entirely understand your quibble.

    “The free market” is not a separate thing from “liberty”. I might say “I think Jessica Boxer’s left arm and right leg have a right to life” with as much content as to say “I favor free markets” as opposed to “I favor liberty”.

  407. >“The free market” is not a separate thing from “liberty”.

    That is correct. Jessica, earlier I defined a free market as one in which nobody is interfering with voluntary transactions by force. When anyone is interfering with voluntary transactions by force, the liberty of the parties to the transaction is infringed.

  408. esr Says:
    > earlier I defined a free market as one in which nobody is interfering with voluntary transactions by force.

    Right, of course I entirely agree. However, both Monster and Tom DeGisi seemed to want to eliminate the “market” part of “free market” and just say “freedom.” I don’t particularly object, but, as I said above, “free market” is useful for the same reason “free speech” or “freedom of association” or RKBA are useful. They are all just freedom, but the qualification helps to emphasis different aspects of freedom. And I think that is a good thing.

    However, if the point is “free market” gets captured by spin meisters, it is a fair point. For example, where people contrast the putative free market in health care insurance with ObamaCare the term is diluted to mean something that has little do to with freedom. (Since obviously our market in health insurance is so far from free that we sent it a little gold plaque with pictures of nakid guy and gal and a diagram of our solar system should they ever wish to visit us.)

  409. @The Monster

    “The free market” is not a separate thing from “liberty”.

    It’s not separate, but it’s also not synonymous. The free market is a particular aspect of liberty.

    A free market has two principal virtues. First of all it is the most effective system for wealth creation ever conceived, and there are hard numbers to back that up, historically.

    Second, a free market is a necessary precondition for political liberty. I think this has been fairly well established by Freidman, and earlier by Hayek.

    I’m still not convinced that a free market is good in itself. Do we think that selling child pornography should be allowed (yep, I went there)?

    @esr

    Mill’s thinking was in some respects primitive. His modern successors (one of which is me) would make a much sharper claim. “We should have a free society, one which minimizes coercion, because that is the choice that minimizes actual pain and injury and death inflicted on actual people.” There is no need to justify the minimization of coercion in any other terms that that we are minimizing coercion.

    I don’t understand this because you seem to contradict yourself. First of all you say that we should have a free society because it minimises pain etc. But then you seem to say that we don’t need to justify freedom in any other terms than that we are creating freedom. Which is it, that freedom is good because it minimises pain, or just that it is good in itself?

    It is not necessary to go “outside” the idea of minimizing coercion to justify property rights, and “society” does not enter into the proof. See my discussion of territoriality as a way to minimize intra-species violence – why your dog knows where your property is – in Homesteading the Noosphere.

    If I follow your line of reasoning from HTN you are basically saying that we have property rights (at least land property rights) in order to minimise violence. Is that right?

    But in that case you have gone beyond the idea of pure liberty (Jessica’s idea of ‘you have liberty until it infringes somebody else’s liberty’). You have decided to protect the property owner’s liberty to have his property over the trespasser’s liberty to roam freely because you think that this will have the effect of preventing violence. I can imagine an anti-gun person making a similar argument with respect to regulation of firearms.

    BTW, I’m actually pro gun ownership (a rare position to take for somebody in my country I can assure you!) so I’m not trying to open that can of worms.

  410. >Which is it, that freedom is good because it minimises pain, or just that it is good in itself?

    Sorry, I was too terse.

    Liberty is the condition in which nobody interferes with your choices by force, subject to the usual no-first-use-of-force restruction. I justify liberty on the expectation that that rule will globally minimize the amount of pain, harm, and death experienced by all persons. In fact I consider the distinction between “liberty” and “minimizing coercion” to be not one of substance but of language; it appears to me that you think I’ve gone outside the idea of liberty because you assume a distinction where none exists or can exist.

    Sorry, I’m not trying to be difficult.

    >Do we think that selling child pornography should be allowed (yep, I went there)?

    I must, with reluctance, answer yes. Coercing children to produce it should be forbidden, but I fear the consequences of legitimizing any kind of content censorship so much that I would not be willing to forbid its sale.

    OTOH, in those versions of a libertarian future with a code duello I would probably consider it my duty to challenge the seller to a duel and kill him.

  411. @esr
    “A free market is what you have when nobody is interfering with voluntary transactions by force.”

    The only example I know of markets with free entry is the local Queens day “garage sale” market where everybody cleans out their attic. All other markets I know limit entry of sellers.

    @esr
    “Free markets often have to be protected by walls and weapons. This does not make them unfree, it makes them defended.”

    My point. The defense part always includes exclusion of people who (might) want to sell on the market. My point is not that force is involved, but that a free market is a game with a specif set of rules. Rules that have to be enforced to make the market function.

    What I miss in all those philosophical “free”, “Free-er”, “FREE-EST” worshiping of the market, is an appreciation of the game/rules part.

  412. >My point. The defense part always includes exclusion of people who (might) want to sell on the market.

    Don’t be silly. Defense doesn’t exclude people who want to trade, it excludes people who want to coerce.

  413. @esr
    “Don’t be silly. Defense doesn’t exclude people who want to trade, it excludes people who want to coerce.”

    You have an obsession with violence.

    Exclusion generally include people who have committed or are expected to commit fraud, embezzlement, theft, run scams, deceit, or frighten others. People who do not pay their dues, or are insolvent, are commonly excluded.

    Every market I have ever encountered or heard about had rules for non-violent behavior that were enforced. Including rules about the size of stalls and presentation of wares.

  414. >You have an obsession with violence.

    You continue to be deeply confused. But such incoherence is no more than what I would expect from a person who called himself a “good commie”.

    >Exclusion generally include people who have committed or are expected to commit fraud, embezzlement, theft, run scams, deceit, or frighten others. People who do not pay their dues, or are insolvent, are commonly excluded.

    Yes, there is nothing un-free about excluding fraudsters, or people who are unwilling or unable to pay for the use of the market space. This is defense of the market, not coercion.

    >Every market I have ever encountered or heard about had rules for non-violent behavior that were enforced. Including rules about the size of stalls and presentation of wares.

    Markets have to take place somewhere, and it’s the property-owner’s right to make those. We reach coercion not with rules like these, but at the point where the market-owner claims a right to monopolize trade and enforces that claim with violence.

  415. It’s not separate, but it’s also not synonymous. The free market is a particular aspect of liberty.

    I was originally responding to this statement:

    Again, I don’t agree at all. The free market is an end in itself.

    An “aspect” of a greater entity is not an end in itself; the greater entity is the end.

    I’m still not convinced that a free market is good in itself. Do we think that selling child pornography should be allowed (yep, I went there)?

    Well, I think that some of what is now called “child pornography” should be allowed: There are “girls” who the law in their state says have reached the age of consent to sex but they may not consent to have the act recorded. That’s insane.

    We have arbitrarily set various ages at which people who are biologically adults (with perfectly functional reproductive systems) are begrudgingly and belatedly acknowledged as such. Most states allow driver’s licenses at 16, but lately there’s been a trend toward bumping it to 17 or 18. At 18, people can smoke and vote, but they can’t drink alcoholic beverages or gamble. At 21 they get to do those two things, but when it comes to health insurance, according to ObamaCare they’re still kids until they’re 26?

    The reason why true CHILD pornography should be illegal is that the child in question lacks the capacity to give the consent that would make the production of the porn a truly free transaction. Making it illegal to hire a hit man to kill someone does not make for an unfree market; it makes the market freer, because the person being killed is not a consenting party to the transaction.

    This sort of question is often asked of libertarians, along with accusations like “you want murder to be legal!”, which belie the fundamental failure to distinguish force and fraud from transactions voluntarily entered into by consenting adults.

  416. @esr
    “We reach coercion not with rules like these,”

    So I am indeed confused.

    I read some quotations:
    “The free market is the right to associate in commerce and intercourse with whomsoever you wish, in whatever manner you wish.”
    “A free market is what you have when nobody is interfering with voluntary transactions by force.”
    “When anyone is interfering with voluntary transactions by force, the liberty of the parties to the transaction is infringed.”

    These “principles” have thus to be augmented by “According to the rules drawn up by the X who organize/govern/defend the marketplace”. Where X can be the traders/consumers/authorities who can exclude parties from entering the marketplace. In this I look at a marketplace as a field where a game is played according to a rule book. The market is free if the rules of the game are fair wrt sellers and buyers and reasonably open wrt to new entrants. I certainly miss an appreciation of the rules needed to keep a market free.

    Btw, I sense that you have some kind of suspicion that this is an attack on the free market. Far from it. I believe that free markets are great creators of wealth. But I get a sense that most commenters here have a rather naive idea of what it actually takes to organize a free market and keep it free. Comparing a “Free Market” with the principle of “Free Speech” is unhelpful in this respect as trading in the same place does require more organization than stepping on a soap box at the corner of a park.

  417. The market is free if the rules of the game are fair wrt sellers and buyers

    The rules are fair if all parties agree to them.

  418. @The Monster
    “The rules are fair if all parties agree to them.”

    I we can all agree, so much the better. But requiring unanimity would preclude any free markets from actually materializing.

    So, I assume that in cases where no unanimity can be reached, something else must be tried. Historically, people found ways to construct things we now tend to call “Free Markets” without complete unanimity. I am interested in how they did that. I am personally not interested in how abstract, hypothetical Free Markets should function.

  419. But requiring unanimity would preclude any free markets from actually materializing.

    Not at all. There is only one rule we all have to agree on:

    Rule 0: Each party to a transaction must agree to the rest of the rules of that transaction, or there will be no transaction.

    If you don’t like the rules I propose for a deal, you decline the deal. It is really that simple.

  420. @The Monster
    “If you don’t like the rules I propose for a deal, you decline the deal. It is really that simple.”

    You are going too fast.

    We just saw that markets are organized, and frequently (if not always) defended. There are rules that come into play even before the parties of a transaction meet. And that are in play after the transaction is completed.

    If markets which have such rules are not free, then there are to my knowledge no free markets.

  421. There are rules that come into play even before the parties of a transaction meet. And that are in play after the transaction is completed.

    Those rules are explained by Rule 0.

    Infringing upon someone’s person or property (obviously without their consent) violates Rule 0. No other rules need be constructed or consulted; any transaction that violates Rule 0 is coerced, and is not part of a free market.

  422. @The Monster
    “any transaction that violates Rule 0 is coerced, and is not part of a free market.”

    All markets I have ever heard of preclude some parties from entering and making transactions. Thus your rule 0 seems to be violated by all markets, some people are coerced not to take part in transactions. Therefore, there are no Free Markets according to your definition.

    And I assume you have some inkling about how the two parties agree on when a transaction is actually agreed upon, and how and when the goods and payment are to change hands?

  423. @Winter

    I think the problem you’re having is that you just don’t accept the fundamental difference between voluntary transactions and those into which one or more parties are coerced. Perhaps this is because the coercive element is often cleverly disguised so that there aren’t literally Men With Badges And Guns standing in front of you to make the coercion evident.

    But any act of government to enforce a rule on the parties to a transaction ultimately comes down to coercive force. If that force is used only against people who try to violate the person or property of another, including the violation of a rule to which all parties did agree, then it is justly used, because it enforces and defends the freedom of the market. If it exceeds that mandate and is used to force additional restrictions on the liberty of the parties, it is subtracting from that freedom.

  424. All markets I have ever heard of preclude some parties from entering and making transactions.

    I’m afraid this is too vague for me to intelligently discuss it with you. Could you enumerate some of the preclusions?

  425. @The Monster
    “I’m afraid this is too vague for me to intelligently discuss it with you. Could you enumerate some of the preclusions?”

    You should take my words literally.

    All stock exchanges and all trading floors are only accessible for members.

    Places at all town markets are distributed, with some traders have priority over others. In almost all (or all?) markets, some people will be banned.

    All bidding procedures for every know agency or firm is limited to specified parties.

    Shop room in all towns and cities is regulated, excluding some people and some commerce.

    In all cases rules have to be followed or the offending party will be barred from “entering the market”. According to your definition, there are no free markets, only free transactions.

  426. All stock exchanges and all trading floors are only accessible for members.

    That’s because the people who formed those organizations, following Rule 0, made a rule that says “to enter into these transactions, you must be a member of the club”.

    And being a member of the club means you’ve agreed to the rest of the rules, including the rules that say if you break the rules, you can be kicked out of the club.

    The Bride of Monster has a similar rule. She’s only, um… “accessible” for the sole member of the group “People Married to TBoM”. If anyone else tried to “access” her, she’d inflict some violence upon them. That’s an example of “defending” liberty, not somehow depriving someone of the liberty to “access” her.

    This is exactly how a free market works.

    According to your definition, there are no free markets, only free transactions.

    Most of the things you’ve described are PARTS of a free market, which includes the freedom to refuse to do business with people based on whatever criteria the parties choose. If someone wanted to create a trading company for red-haired, freckle-faced people, excluding all other people, that would be a free market. More to the point, a firm only allowing bidding from companies that meet certain criteria is simply a judgement that they cannot rely upon those who fail those criteria to perform their obligations under a contract. If an “agency” is a governmental entity, then such criteria need to be strictly constructed or it would indeed be an infringement upon the free market, but that’s a complicated thing to explain, and I won’t go into the details just now.

    The other one of your examples that indicates an unfree market is this one:

    Shop room in all towns and cities is regulated, excluding some people and some commerce.

    Depending on the nature of the regulation, that can be a major infringement upon a free market.

  427. @The Monster
    ‘That’s because the people who formed those organizations, following Rule 0, made a rule that says “to enter into these transactions, you must be a member of the club”.’

    Which is another way of saying that Free Markets need rules. And some rules are good for the Free in “Free Market”, and others are not. I state that without rules, there are no Free Markets. But not all rules are equally good.

    And your idea that all parties agreed unanimously to all the rules is rather detached from reality. The rules and their enforcement matter, what the parties think of it matters a lot less. They may enter out of free will, but others are excluded against their wills.

  428. @The Monster

    The reason why true CHILD pornography should be illegal is that the child in question lacks the capacity to give the consent that would make the production of the porn a truly free transaction.

    The production of child porn is not a transaction. I am talking about selling child porn.

    Making it illegal to hire a hit man to kill someone does not make for an unfree market; it makes the market freer, because the person being killed is not a consenting party to the transaction.

    The person being killed is not a consenting party to the transaction because he is not a party to the transaction at all.

    @ESR, I wonder what you have to say about this example. It is cleaner than the child porn example in the sense that there is no issue of censorship. Of course we all agree that murder should be illegal. But should it be legal to pay somebody in exchange for their committing murder? It’s a free transaction. Should we use force to intervene?

    @esr

    Liberty is the condition in which nobody interferes with your choices by force, subject to the usual no-first-use-of-force restruction. I justify liberty on the expectation that that rule will globally minimize the amount of pain, harm, and death experienced by all persons. In fact I consider the distinction between “liberty” and “minimizing coercion” to be not one of substance but of language; it appears to me that you think I’ve gone outside the idea of liberty because you assume a distinction where none exists or can exist.

    No, I don’t assume a distinction. I understand that we are equating liberty with ‘minimisation of coercion’.

    What I am saying is that your argument is not that liberty is an end in itself. You say:

    I justify liberty on the expectation that that rule will globally minimize the amount of pain, harm, and death experienced by all persons.

    This means that liberty isn’t the end-in-itself. The end-in-itself is global minimisation of pain and death.

    You use the same justification for property rights. You argue that the right to own land will minimise pain and death.

    I go a step further. My conception of liberty is that it is justified by the fact that it will minimise harm and also that it will act to maximise wellbeing.

    This is why I say that a free market, and the broader concept of liberty, is not an end in itself. Our aim always is to minimise harm and maximise wellbeing.

    Therefore, when the free market, or any other type of liberty, acts against our aim to minimise harm and maximise wellbeing we have a duty to impose such minimal restrictions on liberty that will prevent such an outcome.

    This is why I believe it is right to forbid the sale of child pornographic material.

  429. Winter, I’m catching your drift, and perhaps what you are not saying but kind of implying. Just because private market makers can make rules for their market does not mean the government is legitimately able to do so.

    For example, you raised the issue of stock markets. Certainly the NYSE can set rules about both how buyers and sellers act. They can set complex triggers to stop market runs, they can require minimum stock prices of $5, they can require various financial data be published regularly, and in particular forms, formats and with particular accounting rules. And they have every right to do so. It is their market, people can enter into it freely or not at their own volition.

    However, that does not mean that the government has the right to set these same regulations. Why? Because if I want to sell my company on a public market and I don’t like the NYSE rules, I can got to NASDAQ, or AMEX, or pink slips, or ebay. So I can choose what market rules I want to obey. If the government sets the rules I have nowhere to go because the government is a monopoly. And that is why I can’t float my company on eBay, even though I can’t think of a good reason why that would be a bad thing.

    In the special case of stock markets this is alleviated by the fact that capital is much more internationalized than in most markets, so the monopoly power of government is reduced by competition from other governments. It is why Sarbanes Oxley killed the US IPO market, and sent the vast majority of them overseas. So thank god for that form of government competition. But most markets don’t have the option of doing this.

  430. @Jessica Boxer

    Leftists simply do not distinguish between “rules” that all the players agreed to and those imposed by government, except when the voluntarily-agreed rules violate their sensibilities, and they want the government to force everyone else to play by their rules.

  431. @The Monster and Jessica
    I cannot look into the heads of Lefties and players on different markets, so I rather refrain from devining their motives.

    Maybe because I frequently walk past the spot where the first stockmarket was operated, I take a more historical look. From the very start government interference was caused by traders conspiring against the public in catastrophic ways. I assume you know a better solution now. But in the 17th century they did not. Neither did they know one in the 18th or 19th or even 20th century.

    But with the traders and bankers in charge of the USA, things will be different now.

    Anyhow, I do not care who writes the rules much. More how they function.

  432. From the very start government interference was caused by traders conspiring against the public in catastrophic ways.

    How did this “conspiring against the public” manifest itself? Were the traders forcing “the public” to buy/sell securities against their will?

    Anyhow, I do not care who writes the rules much. More how they function.

    Exactly. If you think the rules are good, then it’s fine to you if the government forces everyone else to play by those rules.

  433. @The Monster
    The catatrophes were comparable to the meltdown in 2008. But then only on a national scale (national for the time).

    Most people in those times were familiar with the concept of “fraud”. Maybe that has gone into disuse

  434. @nigel:

    The discussion has moved on, but I wanted to close out my argument.

    First, there’s no natural-language processing going on in Android’s “Linkify” functionality (the core of Apple’s asserted infringements of the 647 patent). I don’t know where you got the idea that there was. All Linkify does is:

    1. Find interesting items using regular expressions.
    2. Turn those interesting items into clickable links.

    Reference: http://android.git.kernel.org/?p=platform/frameworks/base.git;a=blob;f=core/java/android/text/util/Linkify.java

    Now, let’s look at prior art. Regular expressions go back to the 60s, so I think the prior art is abundantly clear there. HTML (among other things) is prior art for representing actions as clickable links, so that is open-and-shut as well. The only piece left is the the idea to combine these two things for a useful purpose, in other words, the use case – which you’ve already conceded would have been obvious. In other words, once you conceded the use case, there’s nothing left.

    That being said, I’ve saved the best for last: http://tidbits.com/article/1298

    That’s an announcement for Netscape Navigator 2.0b1, from October 1995 (well before Apple’s February 1996 filing for the 647 patent). Note, in particular, the feature ‘displays news posting with “live” URLs’. I’ve downloaded a copy of Netscape Navigator 2.01 and tried it out (not for the first time, of course). “Live” URLs are supported not just in newsgroup messages but in mail messages as well (which is not at all surprising given that they appear to share rendering code). Given my testing, I can also confirm that “Live” URLs are *precisely* the Android Linkify functionality at issue (with respect to URLs, of course). From a legal perspective, I presume there would be plenty of i-dotting and t-crossing (dating various items, establishing the functionality I observed in 2.01 did go all the way back to 2.0b1 and so on), but, informally, I think we can all agree that this is undeniable prior art.

  435. @Winter

    If there is fraud, then there isn’t consent to the transaction. One party lied about what was being exchanged, so it was impossible for the parties to agree on the terms of the deal.

    What I’m looking for here is a case where no one used force or fraud against anyone; two or more parties consented to a transaction, and some third party claimed the right to force the parties to adopt additional rules they did not believe were necessary.

    @Tom

    The person being killed is not a consenting party to the transaction because he is not a party to the transaction at all.

    He damn sure is a party! It is a three-party transaction:
    A pays B to kill C.
    A gives up money, gets satisfaction of having C dead.
    B gets money in exchange for providing a service (which happens to violate C’s rights).
    C gives his life. A and B may have agreed to the transaction, but C did not.

    But should it be legal to pay somebody in exchange for their committing murder?

    It is precisely because B killing C is illegal that it’s warranted for it to be illegal for A to pay B to do it. A and B have formed a conspiracy to commit the crime, and A is responsible for his part in it. We may expect some of A’s money to be used to purchase ammunition for the murder, etc.

    If X buys kiddie p‍or‍n, he’s paying Y to do things to Z, who is not able to consent to it. It is because Z does not consent to what Y does for him that it is warranted for it to be illegal for X to pay Y for pictures of it. Now, if X isn’t paying anything, we have to look for some other rationale to justify a law against possession of the offending material. If X watches some advertising in exchange for Y giving access to the material, then X has effectively paid Y to do those illegal things. Does the mere possession of the material itself contribute to the violation of Z’s rights? That is the question that must be answered.

    My point about the “girls” that are above the AoC is that the things being pictured are not themselves a violation of anyone’s rights, so government has no place punishing people for picturing those things. And I say this as the father of daughters and the grandfather of granddaughters, knowing that eventually a parent has to let kids grow up and make decisions.

  436. Another point on the idiocy of laws against “kiddie p‍or‍n”.

    1) Assume an actress who is 18 years old, and therefore legally competent to consent to the act and the recording of it. Now imagine the sort of software used for kidnap victims to digitally “age” them to give a sense of what they might look like today being used in reverse, to digitally “de-age” the legal picture of a legal adult who legally consented to the entirely legal act.

    2) Assume CGI that doesn’t use any human actor at all, but can generate realistic images that appear to be of jailbait engaged in s‍ex acts.

    There are proposals (I’m not sure if they’ve yet been adopted) to make the resulting images illegal, despite the fact that there is no victim whose rights have been violated in any way.

  437. @ The Monster

    He damn sure is a party! It is a three-party transaction:
    A pays B to kill C.
    A gives up money, gets satisfaction of having C dead.
    B gets money in exchange for providing a service (which happens to violate C’s rights).
    C gives his life. A and B may have agreed to the transaction, but C did not.

    It is precisely because B killing C is illegal that it’s warranted for it to be illegal for A to pay B to do it. A and B have formed a conspiracy to commit the crime, and A is responsible for his part in it. We may expect some of A’s money to be used to purchase ammunition for the murder, etc.

    If X buys kiddie p?or?n, he’s paying Y to do things to Z, who is not able to consent to it. It is because Z does not consent to what Y does for him that it is warranted for it to be illegal for X to pay Y for pictures of it. Now, if X isn’t paying anything, we have to look for some other rationale to justify a law against possession of the offending material. If X watches some advertising in exchange for Y giving access to the material, then X has effectively paid Y to do those illegal things. Does the mere possession of the material itself contribute to the violation of Z’s rights? That is the question that must be answered.

    You can throw around all the letters of the alphabet you like, it won’t change the fact that the only people who are parties to a transaction are the buyer(s) and the seller(s). If I am hired (or just volunteer) to do some programming on a piece of software, and later that software is sold by its owner to somebody else, I am not a party to that transaction. Only the buyer and the seller are.

  438. # The Monster Says:
    >There are proposals (I’m not sure if they’ve yet been adopted) to make the resulting images illegal, despite the fact that there is no victim whose rights have been violated in any way.

    I’m as free market as they come. But this stuff is not simple at all. You say creep pays scumbag to take kiddie porn pics of innocent. Here there is a direct chain of causality. However, as I imagine usually happens, (though I don’t claim to be an expert :-) what actually goes on is scumbag takes pics of innocent, and then markets them. After the abuse, creep buys them and does whatever creepy guys do with such things.

    So the causality is not direct. Rather what happened is creep caused a demand for the pictures, which scumbag fulfilled, using the normal mechanisms of the market. Is it actionable for creep to look at the pictures that he indirectly caused to be created? Lets say we totally eradicated all child porn, but there existed millions of images from past crimes. Creep Jr. is born twenty years after all such abuse has been eliminated. Do we still put him in jail for looking at the historical pics? After all, he had nothing to do with their creation.

    On the flip side, if we can make realistic CGI of kiddie porn, which is created with no abuse at all, but arguably continues to create demand for it, including the “real thing”, does that have the same indirect causality?

    For my part, I think that the makers of the real stuff should suffer extremely unpleasant fates, and the rest should suffer the shame of their creepiness, and the shunning of decent people, but no criminal sanctions. But I don’t think it is an easy case at all. When y’all make me libertarian dictator :-) and I begin to change things to eliminate stupid laws and dumb regulations, I assure you, this one will be on the bottom of my list.

    The libertarian “force or fraud” things is always frayed a bit at the edges because it deal with the real world. However, just because there are difficult cases, doesn’t mean that most cases aren’t easy. It doesn’t mean that it is OK for the FDA to remove important drugs from the market, or that it is OK for Apple to demand that only they can make tablets with many obvious features, or it is OK for governments to regulate what is published in the press. Difficult cases make for bad law.

  439. Winter, The Monster and Jessica Boxer,

    I am a conservative because I believe in working with the way actual humans behave. I am not a Soviet because I do not believe in the New Soviet Man. I am not a Libertarian because I do not believe in the New Libertarian Man. Winter is making some actual points about actual people. Actual people want rules. They make up games with rules. Actual people want the rules enforced – even against themselves – as a way to set boundaries. Actual people do tend to cut themselves more slack than they do others. But people do not want to spend all their time creating rules. And they don’t even want to spend much time understanding the rules other people make. If they did, those click through user agreements would be read many orders of magnitude more often. In addition, even when actual people work to agree on the rules they will follow, if the situation is at all complex, they don’t actually agree. There will be differences in what each party thinks the rules mean. Sometimes those differences will be major.

    So yes, theoretically in these voluntary transactions people are agreeing to all rules, but actually they never are. Not even close.

    This is why the history that Winter refers to is so important. Actual markets are based on actual rules created in the actual world. Actual people are going to want to delegate creating, enforcing and interpreting at least some of the rules to their government officials because they have better things to do. Those rules will not be agreed upon by everyone. People do not have the time or the talent to come to mutual agreement about everything. This is another version of the information problem. Yes, it is true that government officials can never have enough information to decide on fair rules for everyone. Yet it is even worse. I don’t even have enough time or information to come up with fair rules for myself. And neither does anyone else.

    > The libertarian “force or fraud” things is always frayed a bit at the edges because it deal with the real world.

    I’d say alot more than frayed. I’d say it is completely idealistic to a utopian degree. I like the princinple, but I think it works best as an ethical goal or standard, not as an expectation about how any society will actually work.

    Yours,
    Tom, who is also muddling through

  440. @Tom

    You can throw around all the letters of the alphabet you like, it won’t change the fact that the only people who are parties to a transaction are the buyer(s) and the seller(s).

    The only WILLING parties. I don’t see how you paper over the fact that what B sold A was KILLING C.

    Let’s throw some other letters.

    P pays Q to steal R’s car.

    P gives money, gets car, consented to transaction
    Q gets money, performs service, consented to transaction
    R loses car, gets nothing, , did not consent to transaction

    The part where C loses his life or R loses his car is PART OF the transaction you claim is strictly between A/B or P/Q.

    @Jessica Boxer

    For my part, I think that the makers of the real stuff should suffer extremely unpleasant fates, and the rest should suffer the shame of their creepiness, and the shunning of decent people, but no criminal sanctions.

    Sounds about right to me.

    The libertarian “force or fraud” things is always frayed a bit at the edges because it deal with the real world.

    The existence of gray does not invalidate the existence of black or white.

  441. Tom DeGisi Says:
    >Actual people are going to want to delegate creating, enforcing and interpreting at least some of the rules to their government officials because they have better things to do.

    I agree with most of what you said. However, it is in this sentence we part company. I think it omits a very basic truth, namely that there are other bodies than government to whom we can look to make the rules. Bodies that often have their goals far better aligned with our own. And further, if you don’t like one such organization’s conclusions, you can readily, in a free market setting, go elsewhere, or even form your own opinion.

    The problem with governments is not that they make recommendations, it is that they make mandatory regulations. It is not that they offer options, it is that they offer one monopoly option.

    To give you an example: the FDA is, in my opinion, responsible for millions of premature deaths. Even if we demand we have an FDA, why do its recommendations have to be mandatory? Why not have a big sticker on their saying “This drug is not FDA approved.” Further, why have the FDA at all (for medicine.) Why not have the AMA or some of the other medical professional bodies provide recommendations on the utility and safety of drugs?

  442. Jessica Boxer,

    I edited out a a mention of businesses for clarity and look what I get.

    > I think it omits a very basic truth, namely that there are other bodies than government to whom we can look to make the rules.

    You are of course correct.

    > Why not have a big sticker on their saying “This drug is not FDA approved.” Further, why have the FDA at all (for medicine.) Why not have the AMA or some of the other medical professional bodies provide recommendations on the utility and safety of drugs?

    Similarly, I am against criminalizing practicing X without a license. For example, the State Bar could license an attorney, giving us an idea he met some minimum standard, and yet NOT criminalize legal advice without a license. Same with the State Medical Board.

    However, there will be some rules that actual people really want, and they may end of being intrusive. It may be that after a run of people dying from unlicensed medical care that actual people will demand that it be illegal to practice medicine without a license. After all, that appears to be what happened in this actual country. Now it may have been that doctors wanted these rules to cut down on competition and they just took advantage of a political situation. I don’t know. But we have to at least consider that it was the true desire of the people.

    Yours,
    Tom

  443. Similarly, I am against criminalizing practicing X without a license. For example, the State Bar could license an attorney, giving us an idea he met some minimum standard, and yet NOT criminalize legal advice without a license. Same with the State Medical Board.

    The distinction is licensure v. certification. The word “license” indicates permission to do something, while “certification” is an endorsement that the consumer is free to disregard if he sees fit.

    It may be that after a run of people dying from unlicensed medical care that actual people will demand that it be illegal to practice medicine without a license.

    “I am too stupid to decide whether I should secure the services of a doctor certified by the AMA, McMedicine, or MedMart. I demand that government decide, not only for me, but for everyone else, too!”

    I call that The Fundamental Contradiction of the Democratic Nanny State If the actual people are actually incompetent to judge who should provide a service to them personally, by what mystical transubstantiation do those same incompetent consumers become such competent voters that they can (either directly, via initiative/referendum or the New England Town Meeting; or indirectly by electing legislators and administrators to) make the decisions not only for themselves but for everyone?

    There are two kinds of people who believe in laws to protect people from their incompetence: 1) those who, by their advocacy, confess their incompetence to manage their own affairs, as above… and 2) those who believe they are the competent ones who need to run everyone else’s lives.

    “He can’t even run his own life; be damned if he’ll run mine, Sunshine!”

  444. Or to flip it, if someone is competent to choose Kathleen Sebelius to decide how everyone’s health care will be handled, how are they incompetent to choose an insurance company and plan for themselves and their family?

  445. The Monster Says:
    > McMedicine, or MedMart.

    These made me laugh. However, I thought about it again and I realized something. Last year I got some shots. One set because I was traveling to a strange country that still has Yellow Fever and Dengue Fever. My employer’s insurance paid the bill. Each shot cost $500. Also later in the year, I got a flu shot. It cost me $19.95 at Walmart. Perhaps it was something to do with the contents of the shot, I think it was more to do with who was paying.

    As another example, the father of a friend of mine was recently diagnosed with sleep apnea. He and I are great buddies, and he has similar political inclinations as I do. He was telling me about his treatment. Apparently they use this machine to blow air through your nose at night, and the pressure keeps your airways open. The machine consists of an air pump, some tubing, and some very simple filters, however, you can only get them on prescription, and one company owns most of the patents, and it is heavily regulated by the FDA.

    You all know that if you could purchase that at Walmart it would cost $39.95, or the deluxe model would be $89.95, but that model would include an alarm clock and a CD player. On his insurance bill the item was billed at $1,500. And it didn’t even have a CD player.

    That, my friends, is why medical insurance is so outrageously expensive.

  446. @The Monster, Jessica Boxer, Tom DeGisi
    Some of the historical cases I alluded to are entertainingly narrated in:
    Memoirs of Extraordinary Popular Delusions and the Madness of Crowds by Charles Mackay

    I am not a conservative and do agree with Tom, humans are not the kind of creatures who could live safely under the rules The Monster seems to want. It is one thing to prohibit “Coercion and Fraud”, it is quite another thing to clean up afterward.

    The damages done by large frauds and delusions like the ones told by MacKay, or Madoff and the bank failings in 2008, are so enormous that there is no way to redeem them in any sensible way. If a dam failure would flood and obliterate a complete city, we cannot get away with “we will punish them if it happens”. Madoff lost $50B, the failure of Lehman Brothers and the widespread mortgage frauds in the USA triggered the loss of hundreds of times as much. Some Ponzi schemes have lead to civil wars and the collapse of economies. So I can understand very well why societies (or populations, if you prefer), would organize institutions to prevent them. You might not like them, but it seems most populations do like them very much.

    And while The Monster might hate rules “unless agreed to unanimously by all involved”, this has never worked for humans, or even for social animals in general. If there is an “original sin” in this context, it is to live together. Because in living together, we have to accept limitations of our freedom.

    And did you notice that I have never ever stated an opinion on who should set the rules?

    I merely alluded to the historical cases where rules were set or enforced. I neither approved nor condemned the practice, I just stated the facts that it happened. Your divinations about my motives or political inclinations are purely projections based on your own obsessions.

  447. Winter:

    It has been my experience that if you only look at one side of the coin, you get an unusual probability distribution.

    Compared the the fraud that is Social Security, Bernie was a piker.

  448. @Jessica Boxer
    “Compared the the fraud that is Social Security, Bernie was a piker.”

    I am not aware that Social Security is a fraud in legal terms. I am very sure that Social Security is perfectly legal in my country. My compatriots made sure of that with their votes since WWII.

    However, I know that Maddof’s fraud was small compared to the 2008 financial meltdown. Still, it tripped up a few banks in my country at a time when they already were in dire straits due to the meltdown.

    My point was simply that some “conspiracies to commit fraud” can do large, irrepairable harm to large swats of the population, and in the past have, indeed, done so. As a result, large parts of the population seem to feel they need precautions installed to prevent such happenings. This is simply a historical observation. Which of these precautions are worth the effort, if any, is an entirely different matter. I do not feel qualified to comment on that.

    @Jessica Boxer
    “It has been my experience that if you only look at one side of the coin, you get an unusual probability distribution.”

    If you can point out a large number of populations that do not want to install protections against large scale financial fraud, my examples would indeed be biased. I honestly do not know any such populations. Even the libertarians in the USA are a minority. But you would know that better than I do.

  449. Winter:

    So it is your opinion that if a fraud is cloaked in the mantle of legality that it is somehow OK? The lie of social security is “demographics is killing us”, the truth is “sorry, we spent all your retirement savings, the cupboard is bare.”

    And it is your view that the opinion of the crowds somehow determines what is right and what is wrong?

    And does it really need to be pointed out how it was the government and proxy government agencies that were at the heart of the financial meltdown?

    And does it really need to be pointed out that the financial meltdown occurred in one of the most highly regulated industries in the country, and that every putative fix fails and simply leads to more putative fixes, and more arrogation of power into the central nexus?

    They say the definition of insanity is doing the same thing over and over and expecting a different result. So why do we think that adding more regulations on top of the layers of already failed regulations are going to fix things?

    If you want to know the future of the United States, it can be summed up in three words: “Barney Frank, Re-elected”.

  450. @Jessica Boxer
    Sorry, but our social security and pensions are funded differently and completely in the open. Every year I see what I pay for each down to the penny.

    Your view of this as fraud is your personal opinion. Compatriots with the same information agree with it. So I stick to legal definitions.
    I am sorry your government has been totally corrupted. I really am. But you should have learned by now that the USA is not the world. There are 7B B people out there that do not live under your administration and laws. They tend to feel differently about their own government.

  451. Winter Says:
    > Every year I see what I pay for each down to the penny.

    Me too. I know exactly what they take. The problem is that they spend it rather than saving it. I’m sorry, but you brought up Madoff. The SS system is very similar to what he did, only in a sense it is worse. Take money from new guys to pay off the old guys: it is the very definition of a Ponzi scheme. There are two differences: with SS it is mandatory — at least Bernie had to smooth talk you — the government throws you in jail if you don’t participate. Secondly, at least Bernie’s junk debts are inheritable. The reason why SS hasn’t collapsed yet is due to the great innovation to the Ponzi scheme — if you die you loose all your “investment”.

    I don’t know where you live, but if it is Western democracy, most likely your pension system works the same. But, if I am mistaken, let me know. I’d like to know more.

    > Your view of this as fraud is your personal opinion.

    If you don’t think that the information put out by the government about Social Security is extremely misleading, I don’t know what to tell you. Again though, I don’t know where you live, so I don’t know how they roll there.

    > There are 7B B people out there that do not live under your administration and laws.

    Yes indeed. Most of them live in India and China. Are things just peachy there?

  452. Winter Says:
    > But you should have learned by now that the USA is not the world.

    Oh, and BTW, this is a tactic I see used by non Americans against Americans all the time. “You guys are so parochial.” First of all, it is a bullshit ad homeinem, and secondly, it is plain misleading. Estonians know more about America than Americans know about Estonia for a very good reason: America is more important in Estonia than Estonia is in America. You might not like that fact, but it is still true.

  453. @Winter”:

    humans are not the kind of creatures who could live safely under the rules The Monster seems to want. It is one thing to prohibit “Coercion and Fraud”, it is quite another thing to clean up afterward.

    It only “seems” that way to you, because you don’t SEEM to be paying attention. If you think you need rules in a stock exchange requiring the players to obtain certain independent verification that they are not offering fraudulent terms, then Rule Zero says you are free to join with others who agree with you, and make those rules. You can then refuse to purchase securities that are not subject to the rules you believe are important.

    Further, if you feel that you lack the ability to judge those rules, you may delegate your right to do so to some other authority. You can decide to only buy securities certified in accordance with rules promulgated by $Authority of your choice. What you can’t do without violating Rule Zero is to force me to accept those same rules.

    My point was simply that some “conspiracies to commit fraud” can do large, irrepairable harm to large swats [sic]of the population

    Then the people who think some new rule can prevent such a conspiracy from defrauding them should insist on that rule for every deal they make. If someone tries to sell them a security that isn’t certified by $Authority, they should refuse, and explain their refusal in those terms. Also, $Authority should publicize whenever someone loses their shirt in a security not certified by their wonderful rules, pour encourager les autres.

    BTW, if someone falsely claims that they have $Certification from $Authority in order to obtain some value from someone relying upon that information, that act is itself fraudulent, and deserves punishment.

    I am not aware that Social Security is a fraud in legal terms.

    That’s because the government is perpetrating the fraud, and the government defines the legal terms. Governments can legally do things that would put corporate executives in Madoff’s cell block.

    And while The Monster might hate rules “unless agreed to unanimously by all involved”, this has never worked for humans, or even for social animals in general.

    Pappekak. (I’m going for the original Dutch meaning here.) In the Ancestral Evolutionary Environment, we existed as small (generally not numbering much over a hundred before subdividing) bands of hunter-gatherers. Anyone who didn’t like the band’s rules could leave and go join some other band that would agree to accept them, or break off and start their own little band. Of course, doing so made one an Other, no longer granted the privileges and immunities of membership in the band/clan/tribe. But so long as the Other stayed off “our” hunting grounds, they were left alone.

    What has changed is that when we settled down to form agriculture-based communities, the size of the governmental domain has tended to increase. Not only has the geographical extent of a typical sovereign state grown, but also the scope of the activities it regulates, and the detail to which it does that regulation. Sure, we still have Vatican City, Singapore, Monaco, and other micro-states, but we also have China, India, USA, Indonesia, Brasil, Pakistan, Nigeria, Bangladesh, Russia, Japan, and Mexico with over a hundred million population. Europe seems determined to form a conglomeration to push the US out of 3rd place in that list.

    The 10th Amendment to the US Constitution was intended to help fight the trend of large, centralized governments. It see it as a special case of Rule Zero, because it pushes power back toward the smaller governments and the individual people.

  454. @Jessica Boxer
    “Estonians know more about America than Americans know about Estonia for a very good reason:”

    They also know more about Russia, Scandinavia, Europe, and most likely some other places. More even than people in the USA know about, say Canada.

    But you misunderstand my point. You present facts about USA political corruption and misgovernment as if they are universal facts of the world. Many countries DO have a decent pension plan, and properly funded social security systems. Some of the worse governments have done away with all these programs you despise, and they are not the better for it, nor are their finances. You simply cannot tell us to do away with our pension funds, social security, and universal health care because the USA is not able to get their act straight.

    Btw, I live in the Netherlands:
    http://www.world-psi.org/TemplateEn.cfm?Section=Meeting_documents&Template=/ContentManagement/ContentDisplay.cfm&ContentFileID=23259

  455. Since I happen to own one: hp tx2z, released december 2008 implements multitouch on a sub-$1000 windows vista (later windows 7) OS, mediocre battery life. Significantly predates the iPad, and suffers from not having a cheap ssd available and being a convertible tablet, not a slate. An ultra-portable model would have been very close to the hypothetical WinPad.

  456. @The Monster

    well, crap. I really hate it when I mess up my block quote tags

    I know, it’s really annoying.

    The only WILLING parties. I don’t see how you paper over the fact that what B sold A was KILLING C.

    Let’s throw some other letters.

    P pays Q to steal R’s car.

    P gives money, gets car, consented to transaction
    Q gets money, performs service, consented to transaction
    R loses car, gets nothing, , did not consent to transaction

    The part where C loses his life or R loses his car is PART OF the transaction you claim is strictly between A/B or P/Q.

    Just because you assign somebody a letter it does not mean they are a party to the transaction. C and R are affected by the transaction, I grant you that, but they are not parties to it.

    When somebody buys the services of somebody else the only people who are parties to that transaction are the buyer and the seller of the service.

    I’ll repeat my programming example in your letter format:

    A hires B to do some programming on a project.

    A then sells the project to C.

    The parties to this transaction are A and C. B is peripherally involved but despite his lettered status he is not a party to the transaction.

    Compare this to the example of child porn:

    A (pornographer) forces B (child) to be in his porn film.

    A then sells porn film to C.

    Again, exactly the same as in the previous example, A and C are the parties to the transaction. B is not a party, even though B was involved in making the product.

    The transaction between A and C is a free one. They exchange money for porn freely.

    The production of the porn was not free, but that is beside the point.

  457. C and R are affected by the transaction, I grant you that, but they are not parties to it.

    They are unwilling participants in the transaction. If C doesn’t lose his life, A will tell B that he hasn’t held up his end of the deal, and the transaction is called off. If R doesn’t lose his car, P will do the same to Q. End result in each case is that there is no transaction without the third parties’ losses.

    If you want to say that the transactions between B and C and between Q and R are separate from those between A and B, P and Q, you cannot deny that those transactions occurred, nor that the services B and Q are selling A and P are the violation of C and R’s person and property respectively. So you’d be saying there are two transactions where I say there is one.

    In your example B’ is not a party to the resale of his work if he conveyed the resale right to A’ as part of the original deal (which a work for hire would implicitly do unless the contract provided otherwise). However, if his deal with A’ was that B’ only held a right to use the program, and could not resell that right, then when B’ sells something A’ owns to C’, A’ is again an unwilling party, either to a separate transaction or the original.

    A” (the po‍rn‍ogr‍apher) is selling something that is itself a violation of the rights of B”, who did not consent to giving it to A”, much less C”. B” is a party to that criminal infringement, again whether it’s a separate transaction or considered part of the original.

  458. To put it in other terms, neither the po‍rn‍ogr‍apher, the hit man, nor the car thief has a right to the thing he’s selling. A free market is only about exchanging the rights that the parties have. Selling someone else’s car without their consent is not part of a free market. It is part of an unfree market, precisely because it violates someone’s person or property.

  459. @The Monster

    To put it in other terms, neither the po?rn?ogr?apher, the hit man, nor the car thief has a right to the thing he’s selling. A free market is only about exchanging the rights that the parties have. Selling someone else’s car without their consent is not part of a free market. It is part of an unfree market, precisely because it violates someone’s person or property.

    You know what? I think you’re right! Sorry, I just wasn’t seeing it clearly before.

  460. Yes, $12 billion is a lot to pay for that privilege. But, unlike the $4.5 billion an Apple/Microsoft-led consortium payed for the Nortel patents not too long ago, that $12 billion buys a lot of other tangible assets that Google can sell off. It wouldn’t surprise me if Google’s expenditure on the deal actually nets out to less – and Motorola’s patents will be much heavier artillery than Nortel’s. Motorola, after all, was making smartphone precursors like the StarTac well before the Danger hiptop or the iPhone; it will have blocking patents.

    The Thinking Man understands that MMI was losing money before the acquisition, and wonders how the “sell off” would work, given this inconvenient fact.

    The Thinking Man also understands that MMI’s patents didn’t stop both Microsoft and Apple from suing before, and wonders why Google owning them would make a difference.

    I don’t think Google is going to get into the handset business in any serious way.

    The Thinking Man knows that Microsoft looked at buying MMI, but passed when they couldn’t just buy the patents. source

    The Thinking Man wonders how Google licensing Android to it’s competitors is any different than Nokia doing the same with Symbian.

  461. So much for the Motorola patent portfolio protecting Android handset makers from Microsoft, huh?

  462. Pingback: Le Nerd de service » Revue de presse techno à CILE-MF (19 août 2011)

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