Blog Ipsa Loquitur

On Friday, I co-hosted a panel at the 4th annual Capitol Camp in Albany. There were lots of really great panels to choose from, but I’m happy we had a good audience and a lively discussion.

My presentation was on the antiquated Freedom of Information Law process in New York State, specifically how to modernize it and the considerable benefits of doing so. You can watch the whole thing here, but make sure to watch my joke about South Dakota at 11:30. That might be my favorite part of the whole thing.

And thanks to Camille Jobin-Davis from the New York State Committee on Open Government for sharing her time and expertise with me and the rest of the discussion on FOIL.

Remember the other day when I said if you’re reading software patent articles on tech news sites not written by Nilay Patel, you were doing it wrong? Let’s add “trademarks” to his beat:

News broke all over the web today that Apple had lost a “major” trademark case against a company called iFone that might prevent it from selling the iPhone in Mexico. The story seemed almost too good to be true, especially since Apple was the first to bring the suit against iFone, a small call center company that filed for its mark in 2003, four years before the iPhone came out. The tech media, in love with the idea that Apple’s litigious ways had backfired, took the story and ran with it.

Unfortunately, it just isn’t accurate — while Apple did lose an appeal over the iFone trademark in Mexico, it has no bearing on its ability to sell the iPhone in that country.

Read the rest of iPhone, iFone, and Apple’s Mexican trademark standoff: what’s really going on at The Verge. Hint: nothing important.

With 100 million first-grade-aged children worldwide having no access to schooling, the One Laptop Per Child organization is trying something new in two remote Ethiopian villages—simply dropping off tablet computers with preloaded programs and seeing what happens.

The goal: to see if illiterate kids with no previous exposure to written words can learn how to read all by themselves, by experimenting with the tablet and its preloaded alphabet-training games, e-books, movies, cartoons, paintings, and other programs.

That’s kind of a sobering thought. For a sense of scale, there are about 40 million kids in Grades K-8 in America. Let’s just go with about 5 million first graders in America. There are 20 times that many first graders without access to schooling around the world. Just in first grade! But there are good people trying to help these kids learn outside the classroom. The MIT Technology Review has a piece reprinted at Mashable.com about what happened when these kids got their hands on these tablets:

Earlier this year, OLPC workers dropped off closed boxes containing the tablets, taped shut, with no instruction. “I thought the kids would play with the boxes. Within four minutes, one kid not only opened the box, found the on-off switch … powered it up. Within five days, they were using 47 apps per child, per day. Within two weeks, they were singing ABC songs in the village, and within five months, they had hacked Android,” Negroponte said. “Some idiot in our organization or in the Media Lab had disabled the camera, and they figured out the camera, and had hacked Android.”

That’s kind of adorable. The whole thing is tugging at my nerdstrings as hard as it possibly can.

Hey, remember when Apple lost that lawsuit against Samsung in the UK, and the court ordered Apple to apologize to Samsung on their website? Hey, remember when Apple posted a non-apology and we all laughed because it’s Apple, and you knew they were going to be dicks about it? Well, the judges didn’t laugh. Today, they called the non-apology “non-compliant” and ordered Apple to, you know, apologize. Again. Finally(?).

But first, more laughing:

Apple tried to argue that it would take at least 14 days to put a corrective statement on the site – a claim that one judge said he “cannot believe”. Darren Smyth of EIP Partners said: “The objection was that Apple had added to the statement that the court of appeal had ordered, so did not comply with the original order, and furthermore that the additions were not accurate. “Apple must now within 48 hours publish a correction on their homepage with a link to the corrected statement in not less than 11-point font.”

‘Hey, I know we were supposed to apologize, and we didn’t, but it’s going to take us a couple weeks before we can get around to caring enough to write an actual apology.’

Apple and Samsung are the tech world’s version of Felix and Oscar. Oh, those two and their zany hijinks! I wonder what mischief they’ll get into next?

Business Insider has an interesting take on contract law and how it applies to online web retailers. Specifically, they report on a recent court ruling involving Zappos, everyone’s favorite online shoe store. The headline reads: Almost Every Website On The Planet Could Be In Legal Jeopardy, Thanks To Zappos. Well, that’s certainly an outsized claim.

Let’s start with a little background. Zappos is a company that sells shoes and stuff online. Recently, some hackers got into Zappos’s computers and downloaded the personal information (email addresses, names, phone numbers, etc.) of 24 million customers. Now, customers are suing Zappos for screwing up. Zappos says that the lawsuits have to go to arbitration because all 24 million customers agreed to Zappos’s Terms of Use, and one of the Terms was “no matter how bad we screw up, you can’t sue us. We go to arbitration.”

And now a court has tossed that arbitration clause, and Business Insider thinks that this will ruin every website on the planet. Well, okay. Have at it, guys. Here’s their legal analysis:

[Zappos] put a link to its terms of service on its website, but didn’t force customers to click through to it. What Zappos should have done: Force customers to click a button that says sure, yeah, whatever, they’ve read the terms and agree to them. Courts have found these “clickwrap” terms valid—even though in reality no one actually reads the stuff they’re agreeing to.

This is all technically right, but I fail to see how any of this is devastating to Every Website on the Planet. This is not news. I mean, the source Business Insider uses for this article is law professor Eric Goldman’s blog, and Professor Goldman explicitly says:

Zappos can hardly be surprised by this adverse judicial ruling. We have known for years that browsewraps are unenforceable (see some of the cases discussed here).

So yes, every website on the planet could be in legal jeopardy if they ignore nearly a decade of judicial rulings on this exact topic. This isn’t novel. No lawyer ought to be surprised about the court’s reasoning on the browsewrap/clickwrap distinction, because courts across the country have reasoned this exact way for a very long time.

One More Thing

Oh, and the other lesson from Zappos’s ruling, that “being allowed to change the terms of use at any time without notice” is toxic and unenforceable, is also extremely well settled. If you have a contract where one side can change the terms without telling the other side, that’s just not enforceable. It was true when we did it with paper, and it’s true when we do it with websites. This is not new.

Heck, here’s Professor Goldman writing about that exact issue five and a half years ago.

Indeed, the court independently concludes the arbitration clause is unconscionable. I expect courts will aggressively police these unilateral amendments using unconscionability and other limiting doctrines.

And here we sit, five years later, with courts doing exactly that.

If you’re reading news articles about software patents written by anyone other than Nilay Patel, you’re probably doing it wrong. Patel, writing for The Verge:

Microsoft’s been touting its Live Tiles concept ever since Windows Phone 7 launched two years ago, but the launch of Windows 8, Windows Phone 8, and particularly the Surface tablets appear to have given a company called SurfCast an opening to file a patent lawsuit over the concept. Microsoft’s held high-profile launches of all three products lately, so news of the case is being reported widely — but a basic examination of SurfCast’s patent reveals Microsoft’s move into selling its own PCs is the key to the complaint.

And as with all patent troll lawsuits, the company in question makes no products, has no assets other than a handful of patents, and was set up shortly after the patent was filed. The fact is that this patent is lousy, the lawsuit is lousy, and Microsoft will throw a few bucks at these guys just to get them to go away.

Patel details exactly why the patent is so lousy, and why the case isn’t going to do anything. The fact is that without the kind of Samsung/Apple animus that keeps these two companies at each others’ throats years beyond the point where rational companies would settle, these kinds of patent troll suits are just a waste of everyone’s time.