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.

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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.

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.

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.

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.

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.

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.

Blog post consolidation in progress — entry will be updated shortly