Google+: Not a Dinosaur

I have been playing with the new Google+ social networking service for a few days now.  I would like to say that I was granted an invite during this limited field test because Google recognized my technological savoir-faire, but in truth I am just fortunate to have a few friends who work at the Big G and one of them was kind enough to send me an invite.

I like Google+, although that doesn’t come as much of a surprise; I like the vast majority of Google’s product designs — largely for their elegant simplicity — and I like Google’s effective but unobtrusive approach to generating revenue from its online products.  Others will certainly disagree, but Google’s online presence reminds me of the early days of the World Wide Web, when developers who were simply enamored by the ability to connect with others were sharing content on the Web without concerns about monetizing every megabyte.

Make no mistake: Google is a business and a very profitable one.  Google supposedly makes more money from advertising than all U.S. newspapers — combined — and any company that can afford to buy its own Tyrannosaurus Rex is doing just fine in my book.1  But Google’s portfolio of products and services for everyday Internet users is ever-expanding, accessible, and provided at no direct cost to those users.  Yes, there are arguments about the value of user information and the cost to Google’s users in terms of privacy, but this is one area where I feel Google has done it right, and it is well-illustrated by the comparison between Google’s new social media network and its largest competitor, Facebook.

My primary qualm with Facebook has always been the platform’s seemingly heavy-handed approach to user privacy.  When Facebook creates new opportunities for third parties to utilize its users’ information, the default approach is to set user preferences to “allow,” unless and until users discover the new setting and disallow it.  No doubt the company markets the effectiveness of this approach to its partners and generates substantial revenue by doing so.  And of course, by finding new outlets to open user data to others, Facebook’s viral networking effect propagates.  I find myself constantly policing my Facebook privacy settings to close down new breaches silently added by Facebook.  It just feels creepy.

Does Google leverage its users’ information? Of course. Google is scanning my search queries, Google is scanning my Gmail, and Google is no doubt scanning my posts in Google+, all with an eye to delivering relevant click-through advertisements that will appeal to me.  But to me, at least, Google’s approach doesn’t feel as obtrusive or clandestine. Some would probably argue that this simply means that Google is better at massaging its users into a sense of security, and while that is almost certainly part of the model, I believe that Google’s “do no evil” mantra is based in reality as much as in marketing. Google sells advertising to its partners and it pairs that advertising with my perceived interests, but there is a disconnect in that pairing: unlike Facebook, Google isn’t simply feeding my demographic data to its partners to use as they see fit.  It’s the lesser of two evils, in my mind, in exchange for free access to the Google products that I actually like to use.

So what else do I like about Google+? The “circles,” for one.  Google allows me to categorize my connections into groups known as “circles,” including “friends,” “family,” “acquaintances,” and people who I don’t know personally, but whose posts I like to follow (“following”).  Whenever I post content — comments, photos, my own biographical data, etc. — I can decide which circles get access to it.  This goes against the grain of viral marketing that Facebook has employed, because it trims down the distribution of users’ content to others, limiting opportunities for growth of the platform through connections.  But Google, no doubt, recognizes that its product will expand without employing that approach and it knows that users like me will appreciate the privacy that its circles provide.

In addition to circles, I like the simple interface inherent in Google+.  While I am certain that the GUI will evolve in time as the platform develops, I enjoy the streamlined and inconspicuous interface which is characteristic of all of Google’s products.  Even the Google+ mobile Android app, which I am using on my smart phone, has a clean feel to it and it simply works, even in beta.

An interesting spin on all of this is the potential downside (for Google) of one of my other favorite aspects of Google+: it is highly integrated with Google’s products and services.  In an age where my data is increasingly spread around on the Internet, I like the fact that Google+ simply ties itself to the other Google products that I already use, and I can tighten down the number of online products that I utilize by keeping them in one family. Google+ integrates my Google Profile, my contacts, my Google Talk chat interface, my Picasa photos, etc.  Many have voiced concerns about the Big Brother effect inherent in consolidating all of one’s online interactions in one company’s products, and there are certainly some valid arguments there, even after wading through the wilder conspiracy theories.  However, I think the larger concern for Google should be the risk of antitrust persecution stemming from its integrative approach to its products.

Greatness is a double-edged sword: a company may become successful when it accomplishes a multitude of tasks for its customers, especially if it accomplishes them incredibly well through innovation and business acumen.  When that kind of efficiency includes tying products together in a manner that obviates the need for consumers to rely upon other companies situated in the same industry, there are inevitably antitrust concerns.  Google has been active in integrating its products, a fact that has not escaped the attention of the FTC, which launched an antitrust probe into Google’s activities last month.  That inquiry, by the way, has not yet lead to a subpoena, but it will be interesting to see if one of the things that I love best about Google is also the thing that leads to its next major legal speed bump.

Google can and almost certainly has taken some notes from Microsoft’s tiff with the DOJ more than a decade ago, which was characterized by Microsoft’s heavy-handed attempts to tie its Internet Explorer browser to its other products, in order to give its browser a competitive edge over the competing, well-established, and now notably-defunct Netscape browser. Once Google+ is opened to the public, the effect of its integration with other Google products should become more evident.   If that effect ultimately spells the demise of Facebook, there will be more fuel for an antitrust fire. I, for one, would hate to see that.


1. OK, OK, purchasing a dinosaur is not exactly a hard indicator of corporate solvency, but I had to work that fun fact in here somewhere.


New Publication & Some Thoughts on ExpressO

I’m very pleased to write that my latest article has been accepted for publication by several excellent law journals.  This was my first foray into the use of ExpressO to submit my work to multiple journals online and I must say, it was much easier than the old way.

Pros: submit to multiple journals simultaneously for a reasonable fee; easily search for and target journals that are a good match for your publication subject matter; utilize the service to alert journals once you have an offer to publish and request expedited review of your article, all electronically

Cons: it is always difficult to gauge the interest that an article might receive and the shotgun approach with ExpressO is almost too easy.  I received an offer almost immediately from one journal, which provided me with a very short period to accept or decline.  My ultimate decision to let that offer pass before I received offers from other journals caused me no small amount of distress.

On the balance: ExpressO is a great service and had it been available to me when I was a law student, I might have been more proactive about submitting my work for publication.  I still believe that some of the articles that I wrote as a student were among my best work and I regret that I didn’t pursue publication more actively.

Among my offers to publish, I finally accepted the one made by the John Marshall Review of Intellectual Property Law.  The decision to choose between that journal and several others was a difficult one, so I relied upon the advice of some of my former law school professors.  I also reviewed the Law Journals: Submissions and Ranking database generated by Jack Bissett at Washington and Lee University School of Law.  The database offers a sort of ranking of law journal prestige, based upon several factors, including how often articles in each journal are cited by others.  It is fairly user friendly, once you figure out how to navigate the syntax.

My article, Fifteen Years of Fame: The Declining Relevance of Domain Names in the Enduring Conflict between Trademark and Free Speech Rights will be published in RIPL this fall.  In the meantime, I will post a working draft on my Selected Articles page.

Thunderbolt Update: A Trademark Victory for Apple?

I reported in February that Apple and Verizon/HTC might be headed for a tussle, in light of their identically-named products.  Apple announced its new THUNDERBOLT peripheral interface earlier this year, while HTC dubbed its first Verizon 4G LTE smartphone the HTC THUNDERBOLT.  At the time, I located a trademark application filed by Verizon for THUNDERBOLT in class 9, for a “wireless communications device.”  That application was dated December 2, 2010.  I see that the application was eventually published, but recently it went abandoned.

Meanwhile, an application for THUNDERBOLT in the same class for “handheld and mobile digital electronic devices for the sending and receiving of telephone calls, faxes, electronic mail, and other digital data” and for “mobile telephones” was filed in the same class by Apple on May 6th, 2011, claiming the priority of an earlier foreign filing for the same mark in Jamaica — wait for it — on November 9, 2010.  That beats Verizon’s file date by approximately three weeks. Touché, Apple.

Thank You, Professors!

I’d like to thank the academy.  The legal academy, that is.

Yesterday, I completed the last final exam required by my LL.M. (Master of Laws) program, which may very well be the last final exam that I will ever take — or so I keep telling myself every few years.

The LL.M. program has been a great experience and all that remains is to put the finishing touches on my thesis, which I hope to iron out in the approaching months.  Arriving at the end of another phase of my academic career has left me feeling a little introspective and a bit nostalgic, hence the compulsion to dedicate some lines to writing about what a long, fun, challenging ride it has been and where I hope that it will take me.

As a preliminary matter, I should probably offer a little perspective about my journey by providing a brief recap of my academic history.  I almost hesitate to include this for fear that it will be read as a self-gratifying compendium of my academic achievements, which is not my intent — that’s what curricula vitæ are for, and I don’t even have one of those posted on this site.  I think that it is fair to say that my years in academia have been as much the product of vocational wandering as the result of intellectual curiosity, so please hold onto your chapeau for the time being.  Here’s the tally:

  • 4 years – undergraduate
  • 4 years – dental school
  • 3 years – dental/surgical hospital residencies
  • 4 years – law school1
  • 2 years – LL.M. program

All told, that adds up to 17 years of higher education and a long string of confusing letters after my name.  I don’t pride myself on my math skills, but when I tally the academic semesters contained within those years (including the mandatory summer sessions required by some of the programs) I arrive at a total of around forty semesters, plus three very intensive years of residency training.  I wish I could tell you how many times during those years I sat down to “you will have three hours to complete this exam,” but — actually, no; I don’t think I really want to figure that out.  Mentally consolidating all of those hours of nail-biting, scribbling, and furtive clock-watching into one patch of neurons would probably require therapy.

But I digress.

My love affair with academia began soon after I finished dental school, when I felt a profound sense of trepidation at the prospect that my full-time pursuit of learning was at its end and life held only the promise of applying what I had managed to absorb by the age of twenty-eight.  I suspect that for many people, eight years of post-high school education could be filed under “more than enough,” but I didn’t view it that way.  As students, we invest an incredible amount of energy into acquiring knowledge and to expanding the breadth of that knowledge into new realms, but then most of us move on to applying only a little slice of that knowledge to the very narrow framework of our chosen careers. And it is hard to find fault with that approach: to master something and successfully make a career of it is unquestionably admirable.

But I felt a little cheated when I finished dental school, recognizing that much of what I had learned over the years would be slowly relegated to forgotten corners of my brain before being erased forever.  Part of my regret also stemmed from the fact that I pursued dual majors in biology and English as an undergraduate.  I loved science, but I also loved to write, and dentistry provided little outlet for the latter.

I confess that following a linear path from school to work to retirement never made much sense to me either.  Ralph Waldo Emerson is credited with first writing that “life is a journey, not a destination,” and perhaps in the same frame of mind, Thomas Edison once said, “I have not failed. I have just found one thousand ways that won’t work.”  Edison seems to have believed that success is built as much on failure as on the ultimate realization of a goal, while Emerson suggested that success is less important than the pursuit of one’s ambitions.  Both Emerson and Edison seem to have shared the belief that the path to enlightenment is at best a winding one, while success is the reward of those who persist in navigating that path.

Along my own winding path, I enjoyed several unexpected opportunities to serve as a teacher, first to dental students and later to law students.  Those experiences opened my eyes to the possibility of a career direction that I hadn’t considered.  Teaching gave me the chance to interact with people who made a career of gathering knowledge and it allowed me to continue to learn in an environment that transcended my role as a student.  It also permitted me to guide others down paths that had once challenged me, and the reward that I felt from making those paths less arduous to others was substantial.

I have practiced law with some of the largest, most prestigious firms in the world and I have practiced dentistry in some of the humblest dental practices imaginable. Those experiences have shaped my views of the world, offered me perspective, and helped me to grow as a person. Along the way, I have learned to view life as an experiment and I have repeatedly felt the call to return to learning.  Academia has provided a doorway for me to heed that call and my professors have been the key to that doorway.  I genuinely respect the guidance that my law professors have offered and I understand why they have chosen to pursue careers in legal education.

The law presents a dynamic subject that is constantly evolving in response to changes in technology, societal norms, and nature itself.  There are an infinite number of topics to write about and no shortage of students willing to learn. The law provides the opportunity to  pursue new ideas and to share them with colleagues, while offering students the opportunity to discover the law in the same way that I did: through curiosity nurtured by educators who genuinely love to teach.

To all of my professors: thank you.


1. I practiced dentistry full-time while attending law school.

Antitrust Digital Music Presentation

I gave a presentation today at the University of Akron School of Law entitled The Record Industry & Digital Music Price Fixing: Starr v. Sony BMG Music Entm’t, 592 F.3d 314 (2d Cir. 2010), cert. denied, 131 S. Ct. 901 (U.S. 2011).  With respect to the cited case, the U.S. Supreme Court decided by not deciding — that is to say that, the class action victory in the Second Circuit was left undisturbed by the Supreme Court.

The gist of the suit was grounded in the class action plaintiffs’ assertion that during the early days of digital music downloads — prior to the $0.99 iTunes era — the defendant record companies conspired to keep downloadable music prices artificially high so that its established revenue stream generated through CD sales would continue uninterrupted.

The Supreme Court’s decision was a bit of a coup for the plaintiffs, because at the district court level, the judge found no compelling evidence of parallel conduct by the Defendant music companies that would suggest antitrust behavior.  In contrast, the Court of Appeals identified at least seven non-conclusory factual allegations suggesting that there was indeed quite a bit of parallel conduct by the Defendants.  The district court and the appellate court could not have been much further apart, and the Supreme Court effectively sided with the latter.

In the grander scheme, I find the case to be especially interesting because it fits well into a discussion about the difficulties that corporate entities and the law itself experience when they attempt to play catch up with new digital technology, a theme that I return to frequently in my writing.  In this case, the music industry was overwhelmed by the emergence of file sharing, particularly during the Napster era, and both industry and the law were initially ill-equipped to manage a technology that simultaneously held so much promise and so much threat for the music industry.  It has been argued that the music industry made some poor decisions at the outset and has invested heavily in supporting those decisions ever since.

It will be interesting to see what the district court decides upon remand, now that the Supreme Court has declined to grant cert to the record companies.  The case has a bit of a Shakespearean quality of the “something is rotten” variety, when you consider that the district court’s ruling was almost diametrically opposed to the Second Circuit’s subsequent decision with respect to the evidence of parallelism.  This alone wouldn’t be particularly bothersome, if not for the district court judge’s admission that she has a potential conflict of interest: her husband represents several of the largest record companies.  And yes, she declined to recuse herself.

Once the case shakes out, I hope to convert my PowerPoint slides and research into a new article.  Stay tuned.

A Thunderbolt by Any Other Name

I have been anxiously awaiting the arrival of Verizon’s first 4G LTE smartphone, the HTC Thunderbolt.  If it boasts the same Rx/Tx speeds that I am getting with my LG 4G USB modem, I will be very pleased.  After the usual delays, the HTC Thunderbolt is due to hit Verizon stores any day now.  Curiously, I see that Apple is planning to offer a new proprietary peripheral connection interface on its devices which will compete with USB 3.0.  Also dubbed Thunderbolt, the new interface was developed by Intel and it should be appearing on Apple MacBook laptops soon.

Apple/Intel's Thunderbolt Interface

While smartphones and computer peripheral interfaces are not identical goods, I would not want to be the party with inferior registration rights in that trademark battle, particularly if Apple, which protects its marks aggressively, finds itself in a corner.

There is one interesting quirk here, with respect to the HTC Thunderbolt: in the past, HTC has, as far as I can tell, always filed U.S. trademark applications for the phones it develops (Incredible, EVO, Incredible S, etc.). But in this case, Verizon was the party which filed an intent-to-use application for THUNDERBOLT. This may simply be the result of an agreement between Verizon and HTC whereby Verizon will be the only carrier to sell an HTC phone bearing the THUNDERBOLT mark and consequently the trademark registration responsibilities were handed off to them. Ultimately, whomever owns the mark (presumably Verizon) will grant a license to the other to use it as well.

Verizon’s application Ser. No. 85188944 for THUNDERBOLT was filed with the Trademark Office on December 2, 2010.  I can find no U.S. applications for THUNDERBOLT by Apple or Intel, although Apple has a history of being coy about its mark registrations, so it may have something in the works.

When Good Consoles Turn Bad

We purchased our 60 GB Playstation 3 console (the “Launch” version, not the new “Slim” version) back in January 2007 and have enjoyed many hours of great use from it.  In addition to gaming, Kelleigh and I use the PS3 to watch movies, view online content, run picture slide shows for friends and family, and more recently, to stream audio from my PC via our home wireless network to the amplifier in the living room.  This particular feature is complimented by our home stereo system setup: the amplifier outputs sound to the surround speakers in our living room for movie viewing, and it can also send audio to the speakers we have mounted outside on our deck.  In addition, we have a Logitech Harmony® 900 universal remote that we use to control the PS3, TV, amplifier, etc., and since the Harmony remote uses RF technology, we don’t have to point it directly at any of the components — we just have to be within about ten meters of the RF receivers.  That means that we can stream music from my PC to the PS3 and control the sound volume, track number, etc. from the Harmony remote while we are grilling steaks on the deck with friends.  It’s a bit of a techy wonderland.

Or at least it was.

Sony built the PS3 with one ostensible flaw: the motherboard was soldered using lead-free material.  This kind of solder is purportedly more vulnerable than leaded solder to cracking in the presence of heat and the PS3 is no slouch when it comes to generating heat: its multiple cell processors and RSX GPU produce a great deal of thermal energy.  I attempted to mitigate the heat problem in our compact entertainment center by installing two fans in the rear: one draws cool air in near the floor and the other pumps it back out near the top:

Using two ultra-quiet 120mm computer case fans hardwired to a single AC adapter and a little wiring help from my friend Craig, I created a fair amount of circulation in the center.  The fans run continuously and are indeed ultra quiet.  Despite my best intentions, however, our PS3 finally succumbed to one too many unintentional all-nighters and presented us with the dreaded YLOD (Yellow Light of Death) last week.  This occurs most often when the solder finally cracks and the GPU loses contact with the motherboard, resulting in a steady amber light on the case exterior, indicating a hardware failure.

But help was available: there are several online manuals available that provide instruction in the fine art of re-flowing solder on your PS3 motherboard.  Following one of those manuals, I disassembled our console on the kitchen counter.  Since  I did not have any confidence that I would recall where everything went when I was ready to reassemble, I placed every screw in its own individually-labeled mini Ziploc baggie.

Can you spot the dental and surgical instruments?

Once disassembled, I carefully re-flowed the solder with an inexpensive heat gun that I purchased at the local Ace hardware store.  After heating the solder to 600°F for a few seconds, I allowed it to cool and and then I re-coated the heat sinks with some silver thermal compound that I had left over from my last PC build.  I put everything back together and *presto* our PS3 was reborn.  Happy days again.

Re-flowing is likely not a long term solution, however, as the solder will probably crack again in time.  A better solution would be to have the chips reballed with leaded solder, and I see that this service is provided by at least one company for a reasonable fee.  If our beloved PS3 crashes again, that is probably the route that I will take.

Update August 2011: eleven months later, our original PS3 is still going strong, although we have since transferred it to my home office (where it gets better air flow and less of a workout) and we have added a newer PS3 Slim to the living room.

My Brush with Soapbox Derby Stardom

My wife Kelleigh is currently associate producing a film called 25 Hill  that is being made right here in Northeast Ohio.  The film, written and directed by Corbin Bernsen, tells the story of a boy who wants to compete in the All American Soap Box Derby, an event which has been held in Akron, Ohio since 1935.  In both the film and in the real world, the Derby may be forced to shut down due to waning interest and financial troubles.  I won’t spoil the story, but suffice to say that it delivers a good message that I think is appropriate for these troubled times.

In the soap box derby world, competitors paint their cars, often with a name or logo on the side.  Shortly before the filming of 25 Hill began last month, my wife mentioned that the protagonist’s car was to be adorned with the patriotic phrase “Spirit of America” on the side.  The title was familiar, so naturally I began to wonder about IP issues.  While the name is obviously reminiscent of the “Spirit of St. Louis,” the single engine plane that Charles Lindberg flew nonstop from New York to Paris, it seemed to ring some other bells as well.  I dug around on the Internet and found some more examples.  Goodyear (also located here in Akron) has a blimp named the Spirit of America, which didn’t really trouble me, but I found another reference that did:  Craig Breedlove, who has spent more than forty years setting land speed records in the Bonneville Salt Flats, has named all of his jet cars Spirit of America.

One of Breedlove’s Spirit of America jet cars

The Wikipedia article (read: dubious) that describes Breedlove’s cars suggests that “Spirit of America” is “the trademarked name used by Craig Breedlove for his land speed record-setting vehicles.”  I performed a quick federal trademark search for the phrase, but I could not locate any particularly relevant federal trademark registrations for SPIRIT OF AMERICA or the like which overlap with 25 Hill’s intended use of the term for a soap box car in a motion picture.

In the big picture, SPIRIT OF AMERICA might be regarded as a descriptive mark of sorts for anything patriotically American, especially in the vein of technologically superior vehicles like planes, airships, and cars, and one could make the argument that anyone who uses the mark in this context does so in a crowded field and is thus entitled to weak protection at best.  Nevertheless, it just seemed like a bad idea to contaminate the film with a potential trademark issue, so I talked it over with my wife, who in turn mentioned it to Corbin.  To my surprise, Corbin asked if I would come down to the production office to offer my thoughts.  After explaining my views and relaying a story about a similar case that my former firm handled successfully on behalf of a trademark owner-client a few years ago, everyone agreed that it was in the best interest of the film to choose a new name.  Some brainstorming followed, a new name was chosen, and I watched with fascination as Corbin and Kelleigh hand-edited the script so that the new name would fit the existing storyline.  Since the soap box car in question will be featured prominently in the film, I will be able to see my small contribution to film history on the big screen, which, I have to say, is pretty great!

Kelleigh and the newly dubbed “Faith and Courage” on the set of the film 25 Hill. Photo courtesy of Jim Biss

Cookie on the Run

I must vent — I can’t help it. Someone is infringing upon the Eat ‘N Park smiley cookie trademark.  The “Clever Cookie Company,” a New York-based company that sells kosher goods via the Internet, has begun producing cookies that are nearly identical to my beloved smiley cookies. If only I was the one representing Eat ‘N Park. I would let loose the virtual wrath of generations of angry, hungry steel workers on those clever bakers in Long Island. Clever Cookie Company indeed. Don’t mess with my Smiley Cookie!®

Admittedly, my Pittsburgh bias is showing through here.  Eat ‘N Park restaurants and their well-known baked goods are a staple of the town that I came to love during the years that I lived there.  What really leaves crumbs in my covers, though, is the difficulty that the public and press have with recognizing the trademark law issues here. Not because I feel that they should have a better understanding of the sometimes counter-intuitive nuances of trademark law, but because I feel that they should have a better understanding of trademark law before they crush the cookie into crumbs. Here is what some of the locals are saying:

“As far as I know the law – all you need to do is change a product 20%, and there is no copyright infringement.” (confusing copyright with trademark)

“Surely that smiley face must be in the public domain by now. Everyone uses it. There would be lawsuits galore!” (trademark rights, unlike copyrights, can exist in perpetuity)

“Does that mean Eat ‘N Park will be suing everyone who uses emoticons?” (Eat ‘N Park owns trademark rights for smiley faces on COOKIES,* not on all things in the universe)

“If Eat ‘N Park somehow prevails, Kings never has to sweat Denny’s introduction of Malevolent muffins or Scowling scones.” (this one is actually pretty funny, although a little misguided)

Eat ‘N Park has a legitimate case. Fortunately, they are well-represented by the Webb Firm in Pittsburgh and I hope that they get a fair shake in court. I also pray that the Clever Cookie Co. does not retain my firm to represent them, as I could not in my heart defend them. I am loyal to just one cookie.

eat n park cookie
I’m very close to the Cookie

* and pancakes too, actually