Recently in Bad Business Ideas Category
This chart says it all. A new study discovers that the vast majority of Facebook apps are an utter waste of time. But oh yeah -- Facebook is worth $9 billion, or $15 billion. And Slide is worth half a billion because it makes that super important FunWall application. Um, right.
here's the chart, courtesy of C|Net's Caroline McCarthy:
It was a great way to keep in touch with friends, get back in touch with old ones, leave them messages, keep contact information current, find out more about your classmates, etc, and so on and forth. In fact, Facebook by itself would have made a perfect turnkey solution for a corporate intranet's directory system. Heck, it would have been fine had it stayed with colleges and workplaces. That 18-25 highly educated demographic that buys lots of stuff? Target ads to them, right?
Then came the Venture Capitalists, and suddenly Facebook was a platform! And it was going to change the world! Revolutionaries in Colombia were using it, and stuff...right...
The truth is, Facebook has jumped the shark. I still keep my profile current, but do I spent much time there? No. Do I use any of the applications? Absolutely not.
Is it a privacy nightmare with dreadful terms of service written by VC's who want to keep it a walled-garden platform they can sell ads on? Absolutely.
Can I do everything I can do with Facebook with other services, without the hassle or the intrusion or the idiotic problem of people getting their accounts suspended for no apparent reason? Can I do it with more privacy? Yeah. LinkedIn, Drop.io, Flickr, Twitter. 'nuff said.
Absolutely.
Look. I think Mark Zuckerberg is a nice guy. I thought the guys suing him were jerks, and the only positive thing I can say about them is that maybe they'll help the U.S. win an Olympic medal in Rowing (please don't get me started on that topic). In fact, I haven't met a Facebook employee that didn't seem like a nice person.
On the other hand, I suspect the VCs at the top looking for ROI have no idea that they've completely ruined the platform.
Zuckerberg and friends are smart people. If I were them, I'd say "screw you," sell to the VC's, take the money and use your collective talent to start something else, only this time remember your job is to build something that people want, not to take over the world and make other people money.
Now, the good folks at Ars Technica reveal that Microsoft proudly crowing over their latest achievement, a (built-in) back door into Windows and the tools to open it!
That loud anguished crying sound you heard is a million IT managers' heads exploding. Why? This thing has been available "to law enforcement" since last June.Microsoft revealed its development of a digital forensic analysis toolkit at a security conference yesterday as part of a wider discussion of how technology can be used to fight crime. The Computer Online Forensic Evidence Extractor, or COFEE for short, is a USB thumb drive that contains software capable of executing approximately 150 separate commands. Once plugged in, COFEE can be ordered to decrypt system passwords, display a history of internet activity, and search the system for evidence.
Here's a question, what company in their right mind that has any requirement for confidentiality would buy software from a software company that sells decryption and password cracking tools for its' own operating system? Isn't that almost advertising how poor your software's built-in security is? Security extends beyond malware protection. It also means that if you build doors and install locks, you should install a good lock. In this case, you're being sold a foam core with a skeleton key.
I would expect a surge in Apple enterprise sales. In their zeal to be helpful and combat computer crime, this may be a shocking case of corporate suicide. They thought people were reluctant to buy Vista now? They'll be shipping XP for a very, very long time, I believe.
As Alex reported in the Weekly Mobile News Roundup, NextWave Wireless, Inc. (yes, THAT NextWave) is planning on selling off their 2.5GHz PCS spectrum licenses.
Anyone notice the lack of ads? I'll probably have one badge replaced with one soon, because someone is doing me a real favour with their service and I want to give them credit. However, I don't expect to make money through this site. At least via ads. If someone thinks my content is good enough that they'll help me keep it running (as a friend has done by providing a service), I will happily accept help. On the other hand, I won't go begging for clicks. And neither should you.t's routinely shocking to me that so many bloggers think they should try and make a profit from their Web site.
Urged on by the success of mega blog networks like TechCrunch and spurred forward by stories from ProBlogger, or corner cases likeDooce.com, Daily Kos and others, an inordinate amount of people are hoisting ads on their blogs, from Google AdSense, from AdBrite orFederated Media, in the hope of turning their daily rantings into big dollars that could possibly change their life. It's no surprise that blogging for many has the shiny look of a "get rich quick" scheme, when actuality is far different.
Their hopes are misguided, and for most, a serious reality adjustment is needed.
In December, I wrote a post stating that Companies using Facebook Beacon as a marketing tool would get sued and demonstrated the privacy policies in effect at a number of the Beacon partners. One of those is Blockbuster, which as noted in the December post, was so over the top with it's privacy policy. It's, in fact, criminal, in my opinion.
Techcrunch is now reporting that Blockbuster is in fact being sued by a Texas woman who under the premise of a 1988 federal law called the Video Privacy Protection Act (18 USC § 2710) which was enacted after Supreme Court nominee Robert Bork was b0rked when video rental history was released during his confirmation hearing. The law prevents video rental companies from disclosing personally identifiable data regarding a member and his/her rental history.
Point of fact, this law has never been tested in court. However, non-lawyer Aaron does a great job of drilling down what's so messed up about this.
Regardless of whether a Facebook user has opted in or out of Beacon advertising within Facebook, express opt-in is required on the Blockbuster side. And at the time, and pertinent to this lawsuit, even with consent it is criminal for video rental companies to share this kind of data, per 18 USC § 2710.
I'll play around on PACER later on and see if I can dig up any more.
Generally, they claim that Company X has infringed upon one of their patents by making cables that might in some way look like Monster's but aren't the same, and hopes that the threat of litigation will compel a settlement, and a licensing agreement. This tends to work when the company on the receiving end is easily intimidated.
Not this time.
In this case, they chose to attack Blue Jeans Cable, a manufacturer of high-end (and American made) audio equipment. What they didn't know is that their CEO is an attorney who graduated from UPenn Law School and spent almost two decades in litigation. The response is hilarious enough to have made it to Slashdot. After systematically deconstructing Monster's claim as frivolous and making it quite clear how unenforceable it is, he lets them know they have messed with the wrong guy, he's mad as hell, and he's not going to take it anymore! First off, he starts by completely deconstructing Monster's claims as facially insufficient for well, anything, and notes that the information they've supplied him with is completely inadequate for him to figure out if he's actually infringed:
I will begin by addressing your trademark/trade dress claim. You have referred to two trademark registrations, and have attached some printouts from the USPTO system but the depiction of the marks on the drawings provided is small and indistinct, making it difficult to determine exactly what the alleged resemblance is, and I need further information from you.
First, I need legible, scale drawings of the marks, preferably with dimensions shown on the drawing. To the extent that drawings are inadequate to show the nature of materials, finishes, print legends, colors and the like, I will also need examples of each of Monster Cable's actual uses of these marks in commerce; actual physical examples would be best, but photographic reproductions might do. As you will understand, these considerations are essential to any claim arising out of trade dress, as you are alleging in essence that there is a resemblance sufficient to cause confusion over the identity or origin of the goods, and no mere line-drawing can suffice.
Second, I will need copies of the trademark applications and any correspondence between the applicant and the USPTO in support of the applications.
Translatation: Prove it.
Third, you have not identified the Monster Cable products in question, in actual use and distribution in commerce, whose trade dress you allege has been appropriated. I have reviewed Monster Cable's online materials and have examined connectors on various Monster Cable assemblies in local retail outlets and am unable to determine which, if any, of these are thought by Monster to represent use of these particular marks. I am also unable to determine from this review whether Monster Cable actually offers any product for sale to which the Tartan connectors are alleged to be particularly similar. My own sense of it, in looking at the connectors, has been that there is no similarity between the Tartan connectors and any of the many Monster Cable connectors beyond the general functional and conventional characteristics which all or nearly all solder-cup, mechanical-assembly, barrel-style RCA-type connectors share. It may be that there is some line of products to which you have intended to refer but which I have not found in Monster Cable's marketing materials or displays; but if so, you will need to show me specifically what product it is, and you will need to call to my attention the specific aspects of the connector design which you contend constitute unique Monster Cable trade dress, what the associated secondary meaning of those aspects of the trade dress is, and in what manner and by what characteristics you allege that this trade dress has been appropriated.
Fourth, if the dimensional characteristics of the connector as used in commerce vary from the dimensions of the scale drawing of your mark, I will need a proper scale drawing, with dimensions, of each version of the actual connector as used in commerce, as well as photographs of the connectors showing actual in-use finishes. If there is more than one such connector design in actual use by Monster Cable as to which appropriation of trade dress is alleged, of course, I will require this information for each and every such design.
On the basis of what I have seen, both in the USPTO documents you have sent and the actual appearance of Monster Cable connectors which I have observed in use in commerce, it does not appear to me that Monster Cable is in a position to advance a nonfrivolous claim for infringement of these marks. There simply is not sufficient resemblance between the Tartan connectors and any mark or any example of the marks' actual use that I can find to support such a claim. But if you have further information for me on that point, you are welcome to submit it.
Translation: You cannot be serious, but go ahead. I dare you.
You have also supplied me with partial documentation on five design patents which you claim these connectors infringe. I will begin by observing, first, that the five design patents are so very much unlike one another that it is very hard to imagine that any product could actually infringe more than one of them at a time; anything close enough to one of them to be deemed an infringement would, by that fact alone, be too dissimilar from the other four. The dissimilarity of the Tartan connector from each of them is readily evident.
I should add that, for the purpose of this letter, I am assuming that these patents are valid. This is in no way a concession of the point. In fact, this is a very significant and likely inaccurate assumption, and you should expect the patentability of these designs to be under attack if you commence an action for infringement.
Translation: I'm keeping a straight face, but if you really want to dance, let's dance.
For his next trick, he proceeds to rip apart Monster's "patents" even more. By this time, the lawyers have to wonder what is going on...
My sense, in looking at these five patents, is that either you are attempting to present some argument that I simply do not understand or you are arguing for untenably broad coverage of these patents which would sweep every functional aspect of the typical solder-assembly RCA connector within the scope of a handful of mere design patents. You need to clarify this, and frankly, I think you need to indicate to me which, if any, of these patents you actually contend are relevant to the present discussion. It cannot possibly be that you believe that more than one of these patents is pertinent, and if you insist that they are, we cannot have an intelligent dialogue on this subject. Once you have identified the patent which you contend is relevant, I need to see the file history and the references to prior art; I need copies of the applicant's correspondence with the USPTO; and I need a clear and cogent explanation from you as to exactly what aspects of the Tartan connector design are alleged to constitute the infringement, and how.
Additionally, if you are able to identify any of these patents as applicable, please let me know whether Monster Cable presently sells, or has at any time sold, any products bearing connectors which are in conformity with the patent drawings or which are otherwise contended to be within the coverage of the patents, and identify those products for me. Please also provide photographs and/or physical examples of these connectors as manufactured and sold.
Also, please provide me all of the information referenced above as it relates to your expired patent D323643, a copy of which I am attaching. I will need to know what products Monster now offers or at any time has offered for sale which were believed to fall within the scope of D323643, and what claims, if any, of infringement of D323643 were made against others by Monster, whether those claims of infringement took the form of correspondence only, litigation, or otherwise. Please let me know which, if any, products Monster has ever sold or offered for sale which were marked with the patent number, or other reference, to D323643. Please also advise me whether, in your view, the Tartan connector does or does not fall within the scope of D323643, and if it is your view that it does not, please identify each and every difference between the Tartan connector and the connector represented by D323643 upon which your view is based. (On that note, let me point out to you that the "turbine cut" feature is irrelevant here as your client makes only functional, not design, claims for that feature in its marketing materials for the product.) I would assume that you would agree with me that if the Tartan connector is less dissimilar from the D323643 patent than from any of the five patents you cite in your letter, then the Tartan connector is within the coverage of the prior art and cannot, as a matter of law, infringe any of your client's current patents.
I must also point out that unless there is a good deal of background information you have not provided me which makes the case otherwise, Monster Cable cannot possibly square its patent infringement claim(s) with its own patent history. Two views of the matter might be taken; the first, which is my view, is that none of the design patents, including D323643, encompass the Tartan connector. If that is so, of course, the claim for infringement fails. But if one grants the sort of breadth to these patents that you appear to wish to do, a problem arises for Monster. D323643 is the least dissimilar to the Tartan connector of any of the patents, and stands as an obstacle to any claim of infringement of the others because it establishes prior art; if its scope, like the others, is granted the breadth you argue for, then the Tartan connector falls plainly under the prior art and cannot constitute an infringement of the later, and more dissimilar, patents. Read the patents narrowly, and Monster loses; read them broadly, and Monster loses. You are welcome to point out any error in my reasoning; but I have to say that I will be unreservedly surprised if you are successful in doing so.
Please also let me know whether Monster Cable or any related entity has brought actions to enforce any of the patents and trademarks referenced in your letter or above, and provide me with the jurisdiction, court and docket information pertaining thereto, along with copies of any decisions or judgments resulting therefrom. If any such litigation proceeded through discovery, I will need all discovery responses, including document production, issued by Monster, as well as copies of any and all depositions taken and the exhibits thereto.
Translation: I Double Dog Dare You!!! Let's go!!!
Oh, and here's my favorite part when he insinuates that Monster operates an illegal tax shelter (probably true):
Further, if any of these patents or trademarks has been licensed to any entity, please provide me with copies of the licensing agreements. I assume that Monster Cable International, Ltd., in Bermuda, listed on these patents, is an IP holding company and that Monster Cable's principal US entity pays licensing fees to the Bermuda corporation in order to shift income out of the United States and thereby avoid paying United States federal income tax on those portions of its income; my request for these licensing agreements is specifically intended to include any licensing agreements, including those with closely related or sham entities, within or without the Monster Cable "family," and without regard to whether those licensing agreements are sham transactions for tax shelter purposes only or whether they are bona fide arm's-length transactions.
Now, what Monster could not have known was that this guy was a highly trained and experienced litigator in a previous life, and the ending paragraphs of this response are absolutely the most priceless thing I've ever seen in my life and I assume have caused a few changes-of-underwear at Monster. Translation: You've f*cked with the wrong guy, buddy. You wanna play rough? I'll play rough!
I think I have a new hero.I have seen Monster Cable take untenable IP positions in various different scenarios in the past, and am generally familiar with what seems to be Monster Cable's modus operandi in these matters. I therefore think that it is important that, before closing, I make you aware of a few points.
After graduating from the University of Pennsylvania Law School in 1985, I spent nineteen years in litigation practice, with a focus upon federal litigation involving large damages and complex issues. My first seven years were spent primarily on the defense side, where I developed an intense frustration with insurance carriers who would settle meritless claims for nuisance value when the better long-term view would have been to fight against vexatious litigation as a matter of principle. In plaintiffs' practice, likewise, I was always a strong advocate of standing upon principle and taking cases all the way to judgment, even when substantial offers of settlement were on the table. I am "uncompromising" in the most literal sense of the word. If Monster Cable proceeds with litigation against me I will pursue the same merits-driven approach; I do not compromise with bullies and I would rather spend fifty thousand dollars on defense than give you a dollar of unmerited settlement funds. As for signing a licensing agreement for intellectual property which I have not infringed: that will not happen, under any circumstances, whether it makes economic sense or not.
I say this because my observation has been that Monster Cable typically operates in a hit-and-run fashion. Your client threatens litigation, expecting the victim to panic and plead for mercy; and what follows is a quickie negotiation session that ends with payment and a licensing agreement. Your client then uses this collection of licensing agreements to convince others under similar threat to accede to its demands. Let me be clear about this: there are only two ways for you to get anything out of me. You will either need to (1) convince me that I have infringed, or (2) obtain a final judgment to that effect from a court of competent jurisdiction. It may be that my inability to see the pragmatic value of settling frivolous claims is a deep character flaw, and I am sure a few of the insurance carriers for whom I have done work have seen it that way; but it is how I have done business for the last quarter-century and you are not going to change my mind. If you sue me, the case will go to judgment, and I will hold the court's attention upon the merits of your claims--or, to speak more precisely, the absence of merit from your claims--from start to finish. Not only am I unintimidated by litigation; I sometimes rather miss it.
I will also point out to you that if you do choose to undertake litigation, your "upside" is tremendously limited. If you somehow managed, despite the formidable obstacles in your way, to obtain a finding of infringement, and if you were successful at recovering a large licensing fee--say, ten cents per connector--as the measure of damages, your recovery to date would not reach four figures. On the downside, I will advance defenses which, if successful, will substantially undermine your future efforts to use these patents and marks to threaten others with these types of actions; as you are of course aware, it is easier today for your competitors to use collateral estoppel offensively than it ever has been before. Also, there is little doubt that making baseless claims of trade dress infringement and design patent infringement is an improper business tactic, which can give rise to unfair competition claims, and for a company of Monster's size, potential antitrust violations with treble damages and attorneys' fees.
I look forward to receiving the information requested and will review it promptly as soon as it is received.
Sincerely,
Kurt Denke
Just a bit of fact-clarifying for everyone:In an interview with the Royal Television Society's Television magazine, Berkett said that "this net neutrality thing is a load of b****cks", and revealed that Virgin is already in talks with unnamed content providers about paying to have their content delivered faster than others.
- Virgin Media is in the UK. The UK has a completely different infrastructure for content delivery than the U.S. does.
- Because there is much more state-run media in the UK, their regulator "Ofcom" has far more authority to regulate content delivery systems.
- Despite Ofcom's previous statements to be "hands-off" I suspect that these types of comments will probably inspire some kind of action.
- None of this has anything to do with the U.S. where the largest Cable provider is a known enemy of FCC Chairman Kevin Martin (aka K-Mart) for their refusal to acquiesce to his desire for "a la carte" programmming.
Calm down, everyone. This is bloviating with no concrete effects. Wait and see.
Now, notwithstanding that non-competes are unenforceable in many states (I'm not sure about CA), if the employer acted in bad faith, I can imagine that if this included enough employees it could turn into a class-action lawsuit. Why?8. Covenant Regarding Competition. I agree that for a period of one (1) year after my employment with the Company terminates, I shall not (a) engage in any employment, business or activity that is competitive with the Company's businesses; or (b) solicit business from, do business with or render services to, in any capacity, directly or indirectly, any entity that is or was a Company client or customer within the last twelve months of my employment with the Company, for a purpose or in a manner that is in any way competitive with the Company's business. If, during or after my employment with the Company, I seek work elsewhere, I agree to provide a copy of this Agreement to any person or entities seeking to hire me before accepting employment with or engagement by any such person or entity.9. Solicitation of Employees. I agree that for a period of twelve (12) months immediately following the
termination of my relationship with the Company for any reason, whether with or without cause, I shall not either directly or indirectly solicit, induce, recruit or encourage any of the Company's employees to leave their employment, or take away such employees, or attempt to solicit, induce, recruit, encourage or take away employees of the Company, either for myself or for any other person or entity.
As a result of the recent California court decision in D'Sa v. Playhut, this approach by employers has been called into serious question. Prior California cases have held that inclusion of an unenforceable noncompete provision could be the basis of a violation of California Business and Professions Code Section 16600 (which
voids any contract provisions that restrain an individual from engaging in his or her lawful profession, trade or business) and could possibly lead to penalties under the Business and Professions Code Section 17200 (which prohibits unfair trade practices). In D'Sa, the California Court of Appeal for the Second Appellate District took these rulings a step further by holding that such a provision may subject an employer to liability.



