Patent wars gone wild: From silly to sleazy

If I were more technically adept, I’d present this post as a split-screen video: On one side, we’d see a San Jose, Calif., courtroom, where Apple and Samsung throw rhetorical bombshells at each other as they fight for the soul of the mobile revolution. On the other, we’d see a Tucson, Ariz., nail salon where a young mother of two tells reporters she is being strong-armed by lawyers for pornographic movie producers who claim she pirated their film.

These are stories that should never have seen the light of day. The patent and copyright system was designed to foster innovation and protect honest entrepreneurs from unprincipled copycats; instead it’s becoming a mechanism to stifle innovation, enrich lawyers, and bog down the court system. Witness these two legal actions, Apple vs. Samsung and the rise of porn trolls, putting to rest any doubt that the patent system is badly broken.

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On the split screen you’d see Samsung, a company with a history of solid technological innovation, potentially losing its case and taking the Android ecosystem, and continued competition in the mobile market, down with it. On the other screen, you’d witness a sleazeball lawyer using tactics that smack of extortion as he claims that Jenny Phan downloaded pirated porn flicks on her home computer. To make the charge go away, he has said she would have to pay $3,500. Phan is not alone; more than 250,000 people have been hit with similar suits, according to the Electronic Frontier Foundation.

Apple didn’t invent the rectangle

It’s one thing when someone copies an integrated circuit, the design of a camera lens, or a major chunk of code. But patent and copyright law gets very weird when we start talking about issues such as “look and feel.”

Among many other claims, Apple says that Samsung copied the look of the iPhone — you know, a rectangular case and a screen that’s much larger than the ones in old-style cellphones and pagers. In his opening statement, Samsung’s lawyer Charles Verhoeven showed mobiles predating the iPhone, and they all had large rectangular screens. “Apple didn’t invent that,” he said. “That was already out there.”

Even more interesting is the photo you see below. It’s a slide that the judge ruled inadmissible in the trial, at which point Samsung took the very unusual step of sending the suppressed evidence to reporters. (I’ve covered quite a few trials and have never seen an attorney stick it to a judge in such an audacious way.)

What you see is a series of designs for phones that predated the 2007 launch of the iPhone. Those phones (the ones that were actually built) weren’t close to the capabilities of the iPhone, but they certainly look similar. As Verhoeven told the jury, the entire industry — not just Samsung or Apple — had figured out that people were going to watch videos and such on their phones and that small screens no longer made any sense.

“Samsung is not some copyist,” Verhoeven said. “Samsung is a major technology company that develops its own innovations.” He said Samsung has been in the mobile market since 1991, long before Apple; spent $35 billion in R&D from 2005 to 2010; and employs 20,000 engineers and 1,000 designers. To be sure, much of that investment has nothing to do with the mobile market, but it’s hard to deny that Samsung is an innovative company.

Pay the pornographer

Unlike my imaginary videos, here’s one you can actually watch. It’s a news clip from a TV station in Tucson — KGUN-TV — that investigated Jenny Phan’s complaint.

Phan told the station that a lawyer for an adult movie outfit called Elegant Angel Productions sent her a letter accusing her of illegally downloading one of its productions. The on-air reporter said the movie has a title “we can’t repeat on TV.”

It appears that the movie company hired a security firm to find IP addresses associated with pirated content via BitTorrent. It then took those addresses to a judge, who ordered the ISP to turn over the names of the owners of those addresses to Elegant Angel.

“Cases like this, usually involving pornographic content, are very common,” Mitch Stoltz, a staff attorney for the Electronic Frontier Foundation told me. At least 250,000 individuals have been named in group lawsuits over the last few years.

There’s a very common belief that if someone pirates your Wi-Fi connection or uses your computer without your permission, you are responsible for illegal downloads of copyrighted material. That’s not true, says Stoltz; the law is quite clear. However, the lawyers who bring those cases use that misperception to convince innocent people that they had better pay up. Since $3,500 is just a fraction of the money it would take to fight a case in court, most people simply settle.

To be exact, cases like Phan’s involve copyrights, not patents. But ultimately patents and copyrights are part of an intellectual property system that no longer works. Oracle sued Google over Java and Android, winning on a technicality, but was not awarded substantial damages; for all practical purposes, Google was the true winner. We’ll see if Samsung can do the same in its patent battle with Apple. A real Oracle victory would have been a disaster, and that’s equally true if Apple wins this case.

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This article, “Patent wars gone wild: From silly to sleazy,” was originally published by InfoWorld.com. Read more of Bill Snyder’s Tech’s Bottom Line blog and follow the latest technology business developments at InfoWorld.com. For the latest business technology news, follow InfoWorld.com on Twitter.