Friday, February 01, 2013

Samsung Galaxy Nexus Can Be Sold in the USA as Apple Fails to Keep Smartphone Competition Out of the Country

Susan Decker at Bloomberg Law has the story at Apple Loses U.S. Court Bid to Block Samsung Galaxy Nexus.

Apple is increasingly being outsold worldwide by Android and Samsung.

Part of the reason may be that Apple's ridiculous IP lawsuits have drawn world attention to the fact that Samsung has the better products.

Besides, most consumers and retailers do not want Apple to be telling them, directly or indirectly, what they can and can not sell or buy.

As the result of Apple's lawsuits, which could be dubbed, "the world's greatest copier suing other alleged copiers", we are one consumer who will NEVER buy Apple products.

It is time for Apple to get back to designing, manufacturing in its own country, and selling its own products, rather than exploiting foreign labor and then trying to keep foreign competing products out of the country, which is a long term strategy that has no future, either politically or economically.

WTO OK's Suspension of Intellectual Property Rights (Legal IP PIracy?) in Trade Dispute Between the USA and Antigua and Barbuda

Are you ready for this?

The BBC reports that US warns Antigua and Barbuda over 'piracy site' plan.

Map location of Antigua (lower island of the two) and Barbuda (upper island),
map linked from The World Factbook

Future new rich kids on the block tomorrow might just be small countries who are able to suspend intellectual property rights and then just "legally" sell online anything they want from their sovereign territory, including property otherwise protected by intellectual property rights in other countries.

A pipedream?

Hardly, in view of a report by Ezra Fieser at the Christian Science Monitor in Legal piracy? Antigua gets OK to start selling copies of US hit movies, songs.

It is one thing for a country to announce it will disregard IP laws.

It is another thing for the World Trade Organization (WTO) to issue a decision that one member nation of the WTO is entitled to do so against another member nation, the USA, as compensation in a trade dispute in which the USA has barred American citizens from using gambling sites based in Antigua and Barbuda, saying that gambling crossing American State lines is illegal.

Unfair? Whoah. As Lee Corso might say, "Not so fast!". As written by Joe Patrice at Above the Law, also the USA can be a beneficiary of a similar WTO ruling:
"For example, if China breaks the anti-dumping rules for tires, the U.S. is allowed to unfairly tax Chinese steel to make up the difference."
The discriminatory American gambling ban is of course surely unconstitutional and shows the degree to which the USA is still backwardly, puritanically paternalistic vis-a-vis its own citizens, with moralistic rules mirroring an inert legal system that has been unable to adjust well to the demands of the modern Internet era or the realities of intellectual property in a digital world.

The ban is also clearly a type of economic trade barrier against other nations, forcing Americans who desire to gamble to go to gambling meccas within America's own borders such as Las Vegas, Nevada, for gambling activities, or to special gambling enclaves, such as those of the Native Americans.

The WTO decision said suspension of IP rights is justified to compensate for the "discriminatory" U.S. gambling decision, which greatly cuts into Antigua and Barbuda's gambling industry, a mainstay of its economy, developed in the 1990's to counter declines in Caribbean tourism, surely as the result of American economic difficulties brought on by just the type of provincial thinking they are again repeating.

Antigua and Barbuda are planning to set up an online site selling music and films, while ignoring American IP rights. The WTO in 2007 in fact ruled that $21 million annually in U.S. intellectual property rights could be waived by Antigua and Barbuda. That monetary amount of course would be hard to control and must be viewed in terms of Antigua and Barbuda's original claim of $3.44 billion compensation annually from the USA for loss of gambling revenues. The USA could of course prohibit sales to the sovereign regions of the USA, but certainly not elsewhere.

Legal experts have indicated it would then be perfectly legal for foreign subscribers or visitors to such an online website to make LEGAL purchases if the site were based in Antigua and Barbuda and sold the wares in its own local currency. The server could be set up not to divulge the whereabouts of customers, thus mooting the issue of geographic location of purchasers of wares, which is of no concern to Antigua and Barbuda in selling their goods.

Copyright Law and J.R.R. Tolkien Lord of the Rings Slot Machines: Estate Heirs in Merchandising & Licensing Battles Cast Serious Doubts on Originalist Constitutional Doctrines

What is it that the U.S. Constitution in the Copyright Clause provides in Article I, Section 8, as a power of Congress?
"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
We keep calling out to fervent Constitutional originalists such as U.S. Supreme Court Justice Antonin Scalia to set this matter straight in the law and to point out as a Constitutional matter that the above clause says nothing about passing such exclusive rights on to the heirs for ANY period of time, much less 70 years, or otherwise using that Constitutional provision to act as a means of censorship with respect to what kinds of merchandising are permitted for copyrighted works by originally unintended monopolistic beneficiaries of a Constitutional provision of exception with respect to intellectual property rights.

Alas, our calls have thus far been in vain. JUSTICE SCALIA!!

Until Justice Scalia speaks up loudly and clearly in the tradition of Justice Thomas, who recently broke his silence of seven years to heap dishonor on his alma mater (better than nothing?), we shall have to endure a world in  which -- let us be frank -- it is far more important to INHERIT wealth and power, than to earn it by work. Well, that is the way the system is currently set up.

In this spirit, we refer to Wired's Underwire and Graeme McMillan's piece on

Tolkien's Estate Countersued in Legal Battle Over Lord of the Rings Slot Machines.

The "legal" issue here is licensing, but the practical issue is censorship.

Justice Scalia and originalist cohorts,
we have massive doubts that such was the intention of the Founders.

The Rule of Law says we must abide by the dictates of today on such matters, but "the rule of law" suggests that such should not be "the rule of law".

Apple Threatened Patent Litigation in Pushing Antitrust Law Violating ‘No-Hire’ Agreements: Where is the Antitrust Division of the Department of Justice?? Going After Beer Mergers?

Killian Bell has the story at Cult of Android in Steve Jobs Threatened Patent Litigation To Enforce ‘No-Hire’ Agreements.

The U.S. Department of Justice ("DOJ") Antitrust Division has been doing much too little in countering antitrust violations in the technology sector.

They prefer going after beer company mergers, mergers that surely have more to do with adapting to the nation's changing beer market than creating monopolies. There are plenty of beers out there to choose from and beer-brewing is not hampered by patent trolling, as in the tech industry. Indeed, selfish and antiquated State regulations on alcoholic beverages probably have more to do with alcohol monopolies than mergers.

The antitrust worry as regards beer mergers is apparently that the beer merger in question will raise beer prices, and we say RAISE THEM! Beer prices SHOULD go up -- especially via taxes on alcohol -- to help finance the nation's destitute governments and to reduce massive over-drinking and drunk and drugged driving. MADD could use your support.

As for the tech industry, these antitrust violations have been a modus operandi of companies such as Apple for years. They laugh all the way to the bank. In fact, part of the past financial credit crisis, after all, can be laid right at the doorstep of regulatory authorities such as the DOJ in general, who were chewing gum and enjoying soft shoes while the world was crumbling.

One of the beefs that we have with the Obama administration is that they have been exceedingly lax at dealing with rampant antitrust behavior in the technological sector, especially in areas tangent to intellectual property.

The result is that many U.S. companies are no longer innovating but rather cashing in on their antitrust violations, where the rewards are far greater than any sanctions to be feared. Why innovate when you can steal at will by violating the law, and in a worst case scenario, can be confronted by laughable sanctions that at best amount to only peanuts?

The price paid by the country is that it is becoming a nation no longer competitive in many areas of technology, and much of its own tech is now made overseas to boot, thus exploiting cheap labor to maintain and expand monopolies that are not being legally attacked domestically. Anyone who doubts that legitimate competition ERODES monopolies should read Apple's tablet market share dips below 50 percent as Samsung gains on iPad. It is not for nothing that Apple tries to keep competition out of the country, aided by gullible courts, misguided legislators and a somnambulating legal system.

As of January 3, 2013, William J. Baer, a Stanford Law School grad, my own legal alma mater, has been sworn in as Assistant Attorney General for the Antitrust Division. His biography tells us what he has done and he seems like a nice sort, but I am not sure that a nice guy is what is needed in the current situation, where we would frankly prefer a man whose presence would have violating executives and corporations shaking in their shoes.

We are thus more interested in reading what the Antitrust Division finally plans to do under his leadership to get DOJ Antitrust into the modern era in breaking the monopolies in the tech sector and finally leaving the laissez-faire enforcement doldrums of the current decades behind them. We see no evidence of any sensible plans in this direction at the DOJ.

Monopolistic practices are not only legion in the tech sector, but also have become worse through intellectual property trolling of all kinds. Where are the remedies!? Where are the sanctions?! Monopolistic companies such as Facebook do what they want and at best get a slap on the wrist for violations of the law.

People complain about "big government". We complain about a "do nothing" big government. Agencies like the Department of Justice Antitrust Division have become paper tigers in the tech sector, whereas other agencies such as the USPTO are expanding and wildly handing out free tech monopolies left and right as if there were no tomorrow.

Speaking of shaking in your shoes, Apple has just applied for a patent on "smart shoes", i.e. embedding a sensor in shoes to tell the wearer when they are worn out. They are not applying for a patent on a "specific sensor", which is what the patent law should be all about. They are applying for a patent on any sensor in shoes. It is absurd. In my opinion, people in the patent field have totally lost their senses. Putting electronic sensors in anything is NOT an invention. In fact, a U.S. Supreme Court court opinion says so nearly explicitly in KSR v. Teleflex. Only the people at the USPTO know nothing about that.

As for the incomparably inefficient Senators and Representatives in Congress, Baer was nominated by U.S. President Obama on February 6, 2012, and only confirmed at year's end, to be sworn in January, 2013. Well, no wonder even big government is not working, when things are done at a snail's pace!

Furthermore, when I went to the website of the United State Senate Committee on the Judiciary, who held hearings on Baer's nomination, the links at that page regarding the Committee Questionnaire DO NOT WORK, which might be regarded as typical for the kind of incompetence that seems to be rampant in Washington.

Here is an example (failed access February1, 2013): if you click Question 12C - Testimony, Official Statements, Other Communications Relating to Matters of Public Policy or Legal Interpretation, the only thing that happens is that a new tab in a new window is opened. When I copied that URL via "copy link location") I got: javascript:HandleLink('cpe_12797_0','CPNEWWIN:NewWindow^top=10,left=10,width=700,height=700,toolbar=1,location=1,directories=0,status=1,menubar=1,scrollbars=1,resizable=1@CP___PAGEID=12925,/nominations/112thCongressExecutiveNominations/upload/WilliamBaer-Question12C.pdf');

Only when I copied the locationally operative part of that URL, i.e. /nominations/112thCongressExecutiveNominations/upload/WilliamBaer-Question12C.pdf and plugged that text into Google search did I find the right and only link that actually leads to the correct page URL, which is:

Well, errors can happen, but apparently, these matters are so unimportant to the legal community at large, that no one has apparently ever accessed that DOJ page, outside of us, otherwise the error would be known.

When that kind of inefficiency and sloppiness are arguably rampant in government, who can expect them to effectively police antitrust activities in industry in general, a responsibility that requires a competent touch of righteous legal ruthlessness toward a private, commercial world out to get what they can and what the government gives them.

We have our doubts as to whether Baer will be "baerly" enough.

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