The U.S. Court of Appeals for the Federal Circuit ruled a California trial judge was too quick to deny Apple’s request to temporarily block the sales of Samsung tablets while Apple’s patent-infringement claims against its rival proceed in court.

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A Microsoft spokesperson, however, said Motorola is prohibited from acting on the court’s decision because a U.S. court granted Microsoft a restraining order on April 11 to prevent Motorola Mobility from taking action based on the Mannheim court’s ruling.

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Here are the actual 10 patents that Facebook is using in its just-filed counter-claim against Yahoo’s patent infringement lawsuit.

Several are held by Facebook CEO and co-founder Mark Zuckerberg, as well as other employees of the social networking giant, in areas such as personalized news feeds, tagging digital media and headline posting algorithms.

The patent ball, as irritating lawyers say, is in Yahoo’s court.

Enjoy:

Exhibit A – US7827208

Exhibit B – US7945653

Exhibit C – US6288717

Exhibit D – US6216133

Exhibit E – US6411949

Exhibit F – US6236978

Exhibit G – US7603331

Exhibit H – US8103611

Exhibit I – US8005896

Exhibit J- US8150913

Last week, Yahoo’s activist shareholder Dan Loeb of Third Point, the New York hedge fund that is waging a proxy fight against the Silicon Valley Internet giant, made a regulatory filing noting that it had spent $971.1 million to acquire 70.5 million shares of Yahoo, a 5.8 percent stake. Loeb asked for Yahoo to consider his alternate board slate, and also wanted its shareholder list to communicate with other investors.

But that’s not all: In another action last week, Third Point asked a Delaware court to give it a look at sealed documents from a now-settled 2008 shareholder lawsuit related to Microsoft’s failed bid for Yahoo.

Said Third Point in its legal request, which Yahoo is seeking to block (of course!): “It is not surprising, then, that Yahoo and its soon-to-be former directors wish to keep details of their embarrassing — and fiduciarily suspect — conduct hidden from view.”

Here’s a video I did talking about the mishegas on WSJ.com’s “Digits” online show:

On the sixth page of its just-filed patent lawsuit against Facebook, Yahoo quotes the social networking company’s CEO and co-founder Mark Zuckerberg:

“Getting there first is not what it’s all about.”

The quote, which Yahoo contends shows Zuckerberg has “conceded that the design of Facebook is not novel and based on the ideas of others,” is woefully taken out of context, but it’s an attempt to hit home one point:

We were here first and we have more patents.

Even if, as it has turned out, Yahoo has done little over the years with the innovation those patents might represent. Meanwhile, Facebook has run the bases with the wide range of the advertising, messaging, customization, privacy and social networking concepts involved.

Of the 10 patents Yahoo is using in the 19-page lawsuit, filed today in California, the company said: “For much of the technology upon which Facebook was based, Yahoo was there first.”

First but worst, as Yahoo has struggled in recent years to make itself more relevant and prevent the decline of its once mighty business.

Via a series of ineffective leaders and strategies, that has not worked at all, as its business has declined. Now — under the much more in-your-face reign of new CEO Scott Thompson — Yahoo is hoping that courts will determine that what it says it invented counts for something.

“Facebook’s entire social network model, which allows users to create profiles for and connect with, among other things, persons and businesses, is based on Yahoo’s patented social networking technology,” Yahoo’s lawsuit reads, in part.

That includes in the legal action, Yahoo alleges, Facebook’s popular News Feed, advertising methods, privacy settings and more. The company adds that Facebook has been “free riding” on Yahoo’s intellectual property and that royalty payments alone will not suffice.

So what does Yahoo want for this alleged free ride? Triple damages and to enjoin Facebook from operating by using said patents.

Given the scope of the patents Yahoo said it has, that means it wants Facebook to essentially close down.

Therefore, I would be expecting Facebook to poke back in three … two … one …

You can add divorce lawyers to that group — but for a different reason.

Sure, like all sharks, divorce lawyers love their own mobile devices. But even more useful are those of their clients’ would-be ex-spouses.

The American Academy of Matrimonial Lawyers says that nearly all of its members have seen a sharp rise in the number of cases using evidence taken from iPhones, Androids and other smartphones. Text messages are also increasingly being used as evidence.

“As smartphones and text messaging become main sources of communication during the course of each day, there will inevitably be more and more evidence that an estranged spouse can collect,” organization President Ken Altshuler said in a statement. “Text messages can be particularly powerful forms of evidence during a divorce case, because they are written records of someone’s thoughts, actions and intentions.”

Text messages are the most common form of evidence presented, at 62 percent, followed by email at 23 percent. Phone numbers and call histories are used 13 percent of the time. Smartphone-specific data, such as GPS or Internet search history, is still rare in divorce cases, but represents the kind of powerful evidence bound to show up more in the future.

“I didn’t want the password to live in an email somewhere. I started thinking, what if there was something that would allow me to destroy the email?” Robbins said in an interview.

The thought stayed with him, and by summer, Robbins had dropped the other project to turn his full attention to building a service for hyper-secure email exchanges. He named the service Burn Note.

Burn Note, which opens up to the public today, allows the sender of an email to set a time frame in which the receiver can read an email before the email disappears.

At that point, the email no longer exists — anywhere.

Burn Note’s Web site says the service uses no binary logging, which means there are no standby servers, or backup copies of emails. The company uses a storage engine that has no journaling capabilities, and an underlying file system that logs metadata but not the content of the notes themselves.

While grabbing an image of the email might seem like a simple workaround, Robbins said he has introduced two methods to the service that make it extremely difficult for recipients to quickly copy the text of an email for posterity. Burn Notes can include Web links, but can’t send attached files, though Robbins has said attachments are in the works.

“I think there are a lot of legitimate uses for why people would want an off-the-record conversation,” Robbins said. “The message goes away, but it’s still been communicated to the recipient, which is the point.”

Robbins most recently served as the head of software development for Facebook-acquired Drop.io; he said the Burn Note service was partly inspired by that cloud-storage service. “There was a feature that we considered, but ultimately didn’t turn on, where a file could have a certain number of views before it self-destructed,” Robbins said.

While there currently aren’t any mobile apps for Burn Note, Robbins said that it’s a mobile-optimized Web site, so it can be accessed from a phone with a Web browser.

Highly encrypted or “vanishing” email services aren’t new. In 1999, Canada-based Hush Communications launched Hushmail, a free Web-based email system for individuals and businesses that sent PGP — Pretty Good Privacy — encrypted emails. As Wired reported, it was originally stated that “uniquely-coded” Hushmails were so encrypted that not even Hush employees with access to servers could read the emails.

But in 2007, Hush turned over a dozen CDs of emails, following a court order obtained through a mutual assistance treaty between the U.S. and Canada. The evidence was requested as part of a U.S. federal prosecution of alleged steroid dealers. The company subsequently acknowledged that Hushmails could, in some instances, be decrypted.

In 2009, the New York Times wrote about a group of scientists at the University of Washington who developed software that would make email messages disappear after a period of time. The software, called Vanish, would rely on a key-based encryption system that differed from the usual key cryptography used in digital communications, by making the “keys” erode over time.

A couple of months after that, “Freedom to Tinker,” which is hosted by Princeton’s Center for Information Technology Policy, released a paper detailing a series of experimental attacks against the Vanish prototype. The paper stated that Vanish should be considered too risky to rely on.

On a Web site for Vanish, the group acknowledged that the implementation on which Vanish was based was not adequately protected against attacks, and says it’s “investigating new directions and architectures for self-destructing data.”

Burn Note’s Robbins says Hushmail’s service and the Vanish project are different from Burn Note because those products rely on encryption keys, while Burn Note is effectively reengineering the default settings of computer systems and server systems so that nothing at all is saved.

When asked what Burn Note’s protocol would be for handling requests from law-enforcement officials for email exchanges, Robbins replied, “Burn Notes aren’t emails.”

He went on to say that the exchange of Burn Notes is more comparable to phone calls in that, unless they’re recorded, the exchange itself can’t be retrieved.

But Burn Note — unlike phone companies — doesn’t keep a log of who is communicating with whom. Robbins said the company plans to compile and study anonymous usage data, but will keep two separate logs — incoming messages and outgoing messages — rather than a log of messages exchanged between users. According to the company’s explanation of its technical procedures, even the time stamp on the message is anonymized: Burn Note rounds the times to the nearest hour so that timing cannot be used as a unique identifier.

“A lot of services launch to acclaim that they’re going make digital communications disappear,” said Paul Ohm, an associate professor of law focused on information privacy at the University of Colorado Law School. “But they sometimes become that place where bad people go to exchange information, or a haven for criminals. In order for this work, you have to stay on the side of legitimacy.”

“It’s never a complete dead end,” Ohm added. “There has to be data living somewhere, and there’s always a way to engineer around these systems.”

While Burn Note will at first be marketed to the average email user, Robbins said he hopes to attract attention from the enterprise market. “I think there’s a really interesting set of use cases around banks, especially if it can be made to plug in to existing systems,” he said.

When asked how Burn Note might comply with the record-keeping obligations of U.S. financial institutions have, Robbins said it would require a case-by-case evaluation.

“I don’t have a good answer for that, because it will require review by a legal professional before we can fully work through that type of situation,” Robbins said. He pointed to the company’s privacy policy, which plainly states:

“If you have a legal obligation to preserve data, do not use Burn Note.”

In an appeal hearing at the Federal Court in Sydney, Samsung lawyer Neil Young said Justice Annabelle Bennett’s granting of an injunction to Apple preventing the distribution of Samsung’s Galaxy Tab 10.1 in Australia was based on “irrelevant considerations.”

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The Korean company said it filed on Monday for preliminary injunctions in the Tokyo District Court and in the New South Wales Registry, Australia, to stop the sale of iPhone 4S smartphones in both countries. Samsung also asked the Japanese court to stop the sale of Apple’s iPhone 4 and iPad 2 devices.

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What does that mean for the rest of us? In a nutshell: It’s yet another victory for Web sites and services that let users upload and access music, movies and other files under the protection of the Digital Millennium Copyright Act.

And it gives Google and Amazon additional cover for the cloud locker services they launched earlier this year, without approval from the big music labels.

In practical terms, though, I’m not sure that the decision does anything beyond maintaining the status quo. Had it gone the other way, it’s possible that it would have threatened lots of popular Web sites and services. But since it doesn’t: Carry on!

The most important news is that a third federal court has ruled on behalf of Web services whose users might use it to upload and/or access files that violate copyright rules.

In this case, it’s MP3Tunes fending off EMI Music. But it’s the same basic story as the Veoh/Universal Music and YouTube/Viacom cases: A judge has ruled that the DMCA doesn’t require Web services to figure out which files that users upload have the right to be there.

Assuming all of those rulings stand up (Viacom is appealing the YouTube decision, and this one will likely go back into the court system, too), this will give Web sites enormous flexibility. The rulings don’t give users unlimited access to stuff they don’t own, though, and they do require sites to pull down files if copyright owners complain.

In this case, Judge William Pauley ruled that MP3Tunes, which operates a “locker” music service similar to the ones Google and Amazon launched earlier this year, was liable for some copyright infringement, because it didn’t remove specific songs EMI had flagged. And he said MP3Tunes founder Michael Robertson was also liable, because he knowingly uploaded songs he didn’t own.

That means Robertson and his company could still end up paying significant penalties, even though they won most of their case.

Pauley’s ruling also briefly blessed the construction of the locker service itself. In short, he said that users have a right to upload their own songs to the cloud and play them back, even if the service they used to do it doesn’t have an arrangement with the music labels.

That’s good news for Google and Amazon, because they don’t have deals with labels for their services. But it didn’t seems like they were going to need them, anyway.

Though music executives huffed and puffed after the lockers launched, they haven’t taken legal action against the companies. They also haven’t pursued mSpot, a small start-up that offers something similar.

I’ve seen some reports that suggest that Pauley’s ruling gives Google and Amazon the ability to do a “scan and match” service, where users don’t have to laboriously upload their songs to a locker — instead, the service would simply look at what’s on their hard drive, and give them access to a copy stored on the site.

That’s what Apple’s new iTunes Match service does (among other things). And Apple hammered out a deal with the labels to make that happen.

But as far as I can tell, the only additional leeway that Pauley gives to Google and Amazon is the ability to save storage space on their own servers, by using “deduplication” technology — a “standard data compression algorithm that eliminates redundant digital data.”

That’s not nothing — it’s always nice to save storage space — but it won’t fundamentally change what they’re offering to consumers, who will still have to spend a long time moving their stuff into the cloud.

Big picture: If the idea of storing all of your music on a remote server — so that you can listen to it whenever you want, wherever you want — is appealing, this ruling is good news. It’s also good news if you like watching videos on YouTube, listening to songs on Tumblr, or using lots and lots of other Web sites that depend on stuff users upload. But since you can do all of that already, you’re not going to notice a change.

On some level of journalism, I guess anything could happen.

At least that’s according to a recent article by Business Insider’s Henry Blodget about an alleged “mole” at Twitter who was allegedly spying for Google, specifically about an exec the microblogging service was trying to poach from the Silicon Valley search giant.

In a decidedly splashy, hello-traffic, ALL-CAPs headline–THE SEARCH FOR THE “TWITTER MOLE”: All Eyes On John Doerr“–Blodget pointed his J’accuse finger at the legendary venture capitalist as the culprit.

Based on…

Well, based on nothing, it appears, except rank speculation and what appears to be no attempt to get Doerr to comment.

And, while it’s not my cup of tea, whatev, I suppose.

Except when I read down to the bottom and landed on this gem:

We have talked to several sources familiar with aspects of the situation. Thus far, we have not been able to confirm either assertion.

First, no one has even confirmed that Google was tipped off in advance of Twitter’s poaching effort, much less by a Twitter mole.

This doesn’t mean it didn’t happen.

And later still:

So we haven’t been able to confirm the “high-level mole at Twitter” story. And we think there’s a good explanation for why there might not be a mole at all.

Secondly, we have talked to no one who has any evidence other than the logic above that, even if there is a Google mole at Twitter, the mole is John Doerr. One insider we spoke to, in fact, dismissed the idea out of hand.

Say what?

It’s kind of like thinking that a sparkly Civil War-era vampire falling in love with a moody chick in the Pacific Northwest and flying through the pines all day and mooning over their cruel fate was real.

Okay, that was a Hollywood movie called “Twilight,” but that doesn’t mean it didn’t happen!

Thus, Doerr–a tough customer to be sure, capable of all kinds of sharp-elbowed behavior–is guilty until proven innocent?

Or just not guilty at all, but let’s just say he might be anyway, without a shred of evidence, because it could have happened!

(Courtroom confession: It was All Things Digital‘s Liz Gannes, who did it on the blog with scoop on the Twitter talent raid effort of Sundar Pichai!)

Speaking of evidence, less than a week later, Javert–oops, I mean, Blodget–was back in another kangaroo court performance with another terrifically loud headline:

“The Guy Who Says He Owns 50% Of Facebook Just Filed A Boatload Of New Evidence–And It’s Breathtaking.”

Breathtaking, I guess, if you are in that fantasy teenaged girl mode, but deeply suspect if you are anyone with a modicum of journalistic responsibility.

It is perfectly fine for Blodget to dredge up the copious emails from a man named Paul Ceglia–who alleges he possesses a contract that he struck with Facebook co-founder Mark Zuckerberg at the time of its creation–and analyze them.

And it is certainly notable that a credible law firm, DLA Piper, has taken on the case for Ceglia and it does seems unlikely that it would have done so without doing some level of due diligence.

In fact, in an interview with Am Law Daily, DLA partner Robert Brownlie, international co-chair of the firm’s securities litigation, said: “At first I shrugged it off as incredible. I would not have gotten involved and DLA would not have gotten involved if we had any doubts about the facts or evidence in the case.”

That was, of course, countered by Facebook’s lawyer Orin Snyder at Gibson, Dunn & Crutcher, who said in a statement that the Ceglia allegations were part of “a fraudulent lawsuit brought by a convicted felon.”

By the way, in fancy-lawyer parlance, that translates to a liar-liar-pants-on-fire defense.

So, microwave the popcorn and get ready for the drama, because no question, it is clearly going to be juicy all around with a whole lot of social networking poking!

In fact, such a case is tailor-made for Blodget, who has always been a very gifted writer with a nose for sharp-edged analysis.

It’s too bad, then, that he did not hone his knife to such an edge when it comes to Ceglia, giving him much too much credibility based on what could be fake emails, especially since they come from a man with a history of fraud.

History, in fact, that Ceglia is depending on in this case, since Zuckerberg most definitely has one in regards to partnerships gone bad.

Thus, Zuckerberg has been sneaky before, ergo he’s sneaky here.

That’s no surprise as a legal tactic, of course, and I threw in the “ergo,” since I too want to play Perry Mason in a blog.

But. More to the point, while Facebook was certainly hard-nosed in dealing with both protracted and high-profile legal challenges from the Winklevoss twins and also Eduardo Severin, I don’t think I have ever seen the company explicitly say evidence was completely fabricated, as it is alleging Ceglia’s emails are.

As I said, I have no idea if they are or they’re not, but I do know this: While those emails are certainly bombshell in nature, they are designed to be so precisely because it is a lawsuit in which the principal is trying to shame Facebook into settling.

None of that seems to concern Blodget, who concludes at the end of the post:

“In short, to us at least, the emails don’t read ‘fake.’”

In short, to me at least, that’s for fake-email experts and the courts to decide.

The real fact of the matter is, who knows? I certainly don’t, although I do know it’s terrifically easy to file a lawsuit and claim just about anything you like.

And the same seems to be true–more and more these days and not for the good–for blogs too.

As for me, I need to get back to my goal of proving that sparkly vampires do exist.

It seems Cameron and Tyler Winklevoss, the Don Quixote twins of the digital age, have tilted at yet another legal windmill unsuccessfully.

So now, after losing another court challenge to overturn a previous court challenge, they’ll have to settle for $65 million.

Actually, $100 million, which is how much shares in Facebook have appreciated since the pair and also Divya Narendra settled with the social networking giant.

Said the ruling from the U.S. Circuit of Appeals for the Ninth Circuit, in part:

The Winklevosses are not the first parties bested by a competitor who then seek to gain through litigation what they were unable to achieve in the marketplace. And the courts might have obliged, had the Winklevosses not settled their dispute and signed a release of all claims against Facebook. With the help of a team of lawyers and a financial advisor, they made a deal that appears quite favorable in light of recent market activity. For whatever reason, they now want to back out. Like the district court, we see no basis for allowing them to do so. At some point, litigation must come to an end. That point has now been reached.

The end? Say it ain’t so! BoomTown, for one, will miss those big lugs.

Not so much Facebook co-founder and CEO Mark Zuckerberg, especially since the pair allege the tech wunderkind stole the idea for the start-up while a student at Harvard University.

After much legal mishegas, they got $20 million and 1.25 million shares at a price of $8.88 each.

And that’s more than enough, said court to the the Winklevii–it’s their eternal nickname in Silicon Valley now–and they can’t back out of a settlement they made in 2004.

As for the specifics, the three-judge panel struck down every Winklevoss argument:

- They said the terms of the Facebook deal introduced after mediation were typical.

- They said Winklevii should have been sophisticated enough to understand valuation.

- They said Winklevii couldn’t use the sealed mediation settlement documents to argue their case.

It’s true, but it’s also sad to see it all over, since all the litigiousness between Zuckerberg and the Olympic rowing brothers has been so dramatic that it was the subject of the almost Oscar-winning movie, “The Social Network.”

But maybe they can go to the Supreme Court! One can dream!

And with their latest loss and all the Google machinating against Facebook, who’s up for a sequel: “Geek Wars: The Empire and the Vii Strike Back.”

In a statement, Colin Stretch, deputy general counsel of Facebook said: “We appreciate the Ninth Circuit’s careful consideration of this case and are pleased the court has ruled in Facebook’s favor.”

Here’s the full ruling:

08-16745

Microsoft’s legal eagle Brad Smith didn’t even bother to pretend the software giant’s filing of a formal antitrust complaint against Google with the European Commission wasn’t a wee bit ironic.

Wrote Smith in a blog post late last night:

“There of course will be some who will point out the irony in today’s filing. Having spent more than a decade wearing the shoe on the other foot with the European Commission, the filing of a formal antitrust complaint is not something we take lightly. This is the first time Microsoft Corporation has ever taken this step.”

But take it the company did, noting: “Microsoft is filing a formal complaint with the European Commission as part of the Commission’s ongoing investigation into whether Google has violated European competition law.”

Google, no surprise, disagreed, via a statement from a spokesman.

“We’re not surprised that Microsoft has done this, since one of their subsidiaries was one of the original complainants. For our part, we continue to discuss the case with the European Commission and we’re happy to explain to anyone how our business works.”

Here is the whole Microsoft post, in which Smith outlines Microsoft reasons for its action:

Adding our Voice to Concerns about Search in Europe

30 Mar 2011 9:00 PM

Posted by Brad Smith

Senior Vice President & General Counsel, Microsoft Corporation

Microsoft is filing a formal complaint with the European Commission as part of the Commission’s ongoing investigation into whether Google has violated European competition law. We thought it important to be transparent and provide some information on what we’re doing and why.

At the outset, we should be among the first to compliment Google for its genuine innovations, of which there have been many over the past decade. As the only viable search competitor to Google in the U.S. and much of Europe, we respect their engineering prowess and competitive drive. Google has done much to advance its laudable mission to “organize the world’s information,” but we’re concerned by a broadening pattern of conduct aimed at stopping anyone else from creating a competitive alternative.

We’ve therefore decided to join a large and growing number of companies registering their concerns about the European search market. By the European Commission’s own reckoning, Google has about 95 percent of the search market in Europe. This contrasts with the United States, where Microsoft serves about a quarter of Americans’ search needs either directly through Bing or through our partnership with Yahoo!.

At Microsoft we’ve shown that we’re prepared to work hard and invest literally billions of dollars annually to offer Bing, a search service that many now regard as the most innovative available. But, hard work and innovation need a fair and competitive marketplace in which to thrive, and twice the Department of Justice has intervened to thwart Google’s unlawful conduct from impeding fair competition. In 2008 the DOJ moved to file suit against Google for its unlawful attempt to tie up and set search advertising prices at Yahoo!, causing Google to back down. And last year the DOJ formally objected to Google’s efforts to monopolize book content, a position affirmed by a federal district court in New York just last week. Unfortunately, even this has not stopped the spread by Google of new and disconcerting practices in the United States.

As troubling as the situation is in United States, it is worse in Europe. That is why our filing today focuses on a pattern of actions that Google has taken to entrench its dominance in the markets for online search and search advertising to the detriment of European consumers.

How does it do this? Google has built its business on indexing and displaying snippets of other organizations’ Web content. It understands as well as anyone that search engines depend upon the openness of the Web in order to function properly, and it’s quick to complain when others undermine this. Unfortunately, Google has engaged in a broadening pattern of walling off access to content and data that competitors need to provide search results to consumers and to attract advertisers.

On PCs it is usually not difficult for people to navigate to any search engine. Google in fact makes this point virtually every time someone raises antitrust concerns about their practices. Their defense ignores the hugely important fact that there are many other important ways that search services compete. Search engines compete to index the Web as fully as possible so they can generate good search results, they compete to gain advertisers (the source of revenue in this business), and they compete to gain distribution of their search boxes through Web sites. Consumers will not benefit from clicking to alternative sites unless all search engines have a fair opportunity to compete in each of these areas.

Our filing details many instances where Google is impeding competition in these areas. A half-dozen examples below help illustrate some of our concerns.

First, in 2006 Google acquired YouTube–and since then it has put in place a growing number of technical measures to restrict competing search engines from properly accessing it for their search results. Without proper access to YouTube, Bing and other search engines cannot stand with Google on an equal footing in returning search results with links to YouTube videos and that, of course, drives more users away from competitors and to Google.

Second, in 2010 and again more recently, Google blocked Microsoft’s new Windows Phones from operating properly with YouTube. Google has enabled its own Android phones to access YouTube so that users can search for video categories, find favorites, see ratings, and so forth in the rich user interfaces offered by those phones. It’s done the same thing for the iPhones offered by Apple, which doesn’t offer a competing search service.

Unfortunately, Google has refused to allow Microsoft’s new Windows Phones to access this YouTube metadata in the same way that Android phones and iPhones do. As a result, Microsoft’s YouTube “app” on Windows Phones is basically just a browser displaying YouTube’s mobile Web site, without the rich functionality offered on competing phones. Microsoft is ready to release a high quality YouTube app for Windows Phone. We just need permission to access YouTube in the way that other phones already do, permission Google has refused to provide.

Third, Google is seeking to block access to content owned by book publishers. This was underscored in federal court in New York last week, in the decision involving Google’s effort to obtain exclusive and unfettered access to the large volume of so-called “orphan books–books for which no copyright holder can readily be found. Under Google’s plan only its search engine would be able to return search results from these books. As the federal court said in rejecting this plan, “Google’s ability to deny competitors the ability to search orphan books would further entrench Google’s market power in the online search market.” This is an important initial step under U.S. law, but it needs to be reinforced by similar positions in Europe and the rest of the world.

Fourth, Google is even restricting its customers’–namely, advertisers’–access to their own data. Advertisers input large amounts of data into Google’s ad servers in the course of managing their advertising campaigns. This data belongs to the advertisers: it reflects their decisions about their own business. But Google contractually prohibits advertisers from using their data in an interoperable way with other search advertising platforms, such as Microsoft’s adCenter.

This makes it much more costly for Google’s advertisers to run portions of their campaigns with any competitor, and thus less likely that they will do so. That is a significant problem because most advertisers figure that they have to advertise first with Google. If it’s too expensive to port their advertising campaign data to competing advertising platforms, many won’t do it. Competing search engines are left with less relevant ads, and less revenue. And while this restraint isn’t visible to consumers, its effects are nonetheless felt across the Web. Advertising revenue is the economic propellant fueling the billions of dollars needed for ongoing search investments. By reducing competitors’ ability to attract advertising revenue, this restriction strikes at the heart of a competitive market.

Fifth, this undermining of competition is reflected in concerns that go beyond Google’s control over content. One of the ways that search engines attract users is through distribution of search boxes through Web sites. Unfortunately, Google contractually blocks leading Web sites in Europe from distributing competing search boxes. It is obviously difficult for competing search engines to gain users when nearly every search box is powered by Google. Google’s exclusivity terms have even blocked Microsoft from distributing its Windows Live services, such as email and online document storage, through European telecommunications companies because these services are monetized through Bing search boxes.

Finally, we share the concerns expressed by many others that Google discriminates against would-be competitors by making it more costly for them to attain prominent placement for their advertisements. Microsoft has provided the Commission with a considerable body of expert analysis concerning how search engine algorithms work and the competitive significance of promoting or demoting various advertisements.

Over the past year, a growing number of advertisers, publishers, and consumers have expressed to us their concerns about the search market in Europe. They’ve urged us to share our knowledge of the search market with competition officials. As they’ve pointed out, the stakes are high for the European economy. On any given day, more than half of all Europeans use the Internet, and more than 90 percent of them look for information about goods and services on the Web. Indeed, the European Commission’s Digital Agenda made clear that commerce is moving online, where two-thirds of Europeans begin their shopping process. It’s therefore critical that search engines and online advertising move forward in an open, fair and competitive manner.

There of course will be some who will point out the irony in today’s filing. Having spent more than a decade wearing the shoe on the other foot with the European Commission, the filing of a formal antitrust complaint is not something we take lightly. This is the first time Microsoft Corporation has ever taken this step. More so than most, we recognize the importance of ensuring that competition laws remain balanced and that technology innovation moves forward.

We readily appreciate that Google should continue to have the freedom to innovate. But it shouldn’t be permitted to pursue practices that restrict others from innovating and offering competitive alternatives. That’s what it’s doing now. And that’s what we hope European officials will assess and ultimately decide to stop.

Please see this disclosure related to me and Google.

Here’s one from CNN. The Winklevii tell Piers Morgan that it’s not ironic that they are now active Facebook users, despite their ongoing legal and moral crusades against the company. “Technically we’re using our idea….It’s really our product and we’re the originators.” (The two grown men, somewhat oddly, make little effort to differentiate from each other, so I’ll just attribute those comments to both of them.)

And here’s one from the Daily, which shot crazy amounts of creative B-roll of the Winklevosses’ rippling muscles and chiseled jaws (they are Olympic rowers, after all). This is part one of a three-part series by the Daily’s Erin Ade, who discloses she’s a childhood friend of the Winklevii. Cameron and Tyler say they want to tell Zuckerberg to “grow up and admit to the world and yourself what you already know is true…because the moment you do that the chapter will be closed and you can move on as an individual.”

Please see the disclosure about Facebook in my ethics statement.

It’s the latest development in a shareholder lawsuit against HP in which the plaintiffs have alleged that HP’s board of directors let Hurd walk out the door with too much money when he resigned following accusations of sexual harassment by a onetime contractor. They’re seeking an order that would require Hurd to disgorge the payments he received as his severance deal.

The judge, James Ware, ignored Hurd’s argument that he deserves to see documents relating to the matter that so far HP has refused to share, though the ruling doesn’t address whether he’ll ultimately get to see them or not. Hurd had objected to a new investigation, saying he would agree to it only if he were to get copies of the initial demand letter from shareholders that led to the lawsuit, as well as related documents that are under seal in a separate shareholder case on the same issue that’s before the Delaware Court of Chancery. Ware scheduled a hearing on March 20 to hear an update on the investigation.

Hurd resigned from HP in August after accusations about sexual harassment arose from Jodie Fisher, a onetime actress and former HP contractor. He was found not to have violated HP’s sexual harassment policy, but was found to have violated HP’s expense-reporting policy. After leaving HP, he went on to become co-president of Oracle, after Oracle CEO Larry Ellison criticized HP’s board of directors for its handling of the incident.

Word of a new probe comes in response to a shareholder lawsuit in federal court in California claiming that HP paid Hurd too much in severance when he left. In the meantime, both HP and the shareholders suing have asked the judge to put the case on hold until the investigation is complete.

Hurd says he wants to see a copy of the shareholder demand that led to the lawsuit, and will oppose the delay in the case until that happens. HP says that as a subject of the inquiry, Hurd isn’t entitled to see any of the documents in question.

In the Delaware case, Hurd’s lawyers argued that the original letters from Jodie Fisher, a onetime actress and a former HP contractor who accused Hurd of sexual harassment, shouldn’t be made public.

Hurd, you’ll recall, went on to become co-president of Oracle, after Oracle CEO Larry Ellison raked HP’s board over the coals for its handling of the incident. Ellison wasn’t alone, as former General Electric CEO Jack Welch later piled on.

Intel will pay Nvidia in five annual installments beginning Jan. 18, and in return will receive full access to Nvidia’s full range of patents, which had been part of the dispute. Nvidia will retain use of certain Intel patents that had also been in dispute.

“This agreement ends the legal dispute between the companies, preserves patent peace and provides protections that allow for continued freedom in product design,” said Doug Melamed, Intel senior vice president and general counsel, in a statement.

The fight had been over the terms of a 2004 agreement under which Intel granted Nvidia access to some of Intel’s technology for use in its chipsets, the chips that sit between the microprocessor and the graphics chip like connecting tissue. The cross-licensing agreement allowed Nvidia to make chipsets that were compatible with Intel microprocessors.

The trouble began in 2008, when Intel released its Nehalem generation of PC chips. The two companies disagreed over whether the 2004 agreement allowed Nvidia to make chipsets that would work with Nehalem chips and generations of chips that would follow. They filed dueling lawsuits in the Delaware Court of Chancery in early 2009. Intel asked a judge to rule that the agreement didn’t cover Nehalem and future generations of chips, while Nvidia sued for breach of contract, and sought to terminate Intel’s right to use some Nvidia patents that had been part of the agreement.

As I reported last December for Businessweek, the dispute caught the attention of the Federal Trade Commission, which added it to an antitrust complaint that was later settled.

The larger backdrop here is the growing threat Nvidia’s chips, known as graphics processing units (or GPUs), pose to Intel’s chips in servers and supercomputers. Engineers often refer to this as the CPU-GPU debate, where Intel’s chips are referred to as CPUs.

GPUs are common in most PCs, and usually handle the processing required to make games look good and run smoothly, working in concert with the CPU.

Since GPU chips do certain kind of math known as a floating point operation a lot faster than a CPU, they’re increasingly being used in systems that Intel has traditionally considered its primary domain: Heavy-duty financial modeling (oil and gas exploration is a good example). They’re also making a huge splash in the rarefied world of supercomputing: Nvidia GPU chips are being used in three of the top five systems on the elite Top 500 list of the world’s most powerful supercomputers. And as we all saw at CES last week, they’re starting to show up in tablet and other PC-like devices running Windows with the full support of Microsoft.

The dispute between them, which effectively put Nvidia out of the business of making chipsets that were compatible with Intel chips, certainly hurt. Though for Intel’s part, losing the Nvidia patents in question could have conceivably hurt its new Sandy Bridge chips, which combine a GPU and a CPU into one single component. Intel formally launched Sandy Bridge at CES last week.

And as recently as last week, sources familiar with the matter were saying that a new trial date was scheduled for February. Nvidia CEO Jen-Hsun Huang was careful not to directly answer a question about that from Mobilized’s Ina Fried in an interview at our D@CES event last week:

Intel and Nvidia had mysteriously withdrawn the case from the court’s calendar days before opening arguments were set to get underway on Dec. 6. Bloomberg News then reported that settlement talks were underway, though by mid-December there were signs that those talks had stalled, and sources said that a new trial date had been agreed to. That was until today, when sources at both companies started to drop hints that news was imminent.

]]> http://allthingsd.com/20110110/intel-will-pay-nvidia-1-5-billion-to-maintain-patent-peace/feed/ 0 http://allthingsd.com/20110108/twitter-responds-to-wikileaks-document-demand-by-feds/ http://allthingsd.com/20110108/twitter-responds-to-wikileaks-document-demand-by-feds/#comments Sat, 08 Jan 2011 08:25:16 +0000 Kara Swisher http://kara.allthingsd.com/?p=39304

Twitter has been ordered by a U.S. federal judge to turn over documents related to several people involved with WikiLeaks to the Justice Department.

Tonight, a Twitter spokeswoman responded to a request for comment on the situation:

“We’re not going to comment on specific requests, but, to help users protect their rights, it’s our policy to notify users about law enforcement and governmental requests for their information, unless we are prevented by law from doing so. We outline this policy in our law enforcement guidelines.”

In an onstage interview I did with Twitter CEO Dick Costolo at a D@CES event last night in Las Vegas, he referenced the issue, but would not give any specifics.

While he said he could not talk about WikiLeaks specifically, he indicated that he disliked government mandates to keep things quiet and reiterated Twitter’s desire to connect people with useful information.

“We’re going to lash out at things that prevent us from doing that, as aggressively as we can,” said Costolo, who also used Twitter crackdowns in China as an example.

It might be a Herculean task to fight the federal government, which is aggressively going after WikiLeaks and its founder, Julian Assange.

Some Web companies, such as eBay’s PayPal unit, have cut off WikiLeaks.

On the other hand, Twitter took legal action to unseal the court order, which allowed it to inform those involved, giving them 10 days to object. Otherwise, the San Francisco microblogging service would have had to turn over information without the knowledge of these users.

There will surely be more of these to other Web companies, with obvious candidates being Google and Facebook.

The order from the U.S. District Court for the Eastern District of Virginia is ordering Twitter to fork over subscriber names, user names, screen names, mailing addresses, residential addresses and more of several people involved with WikiLeaks.

But you can read for yourself–here is the court order, as well as the unsealing order:

twitter1

twitter2

]]> http://allthingsd.com/20110108/twitter-responds-to-wikileaks-document-demand-by-feds/feed/ 10 http://allthingsd.com/20110105/judge-google-was-excluded-microsoft-favored-in-federal-contract/ http://allthingsd.com/20110105/judge-google-was-excluded-microsoft-favored-in-federal-contract/#comments Wed, 05 Jan 2011 18:08:31 +0000 Arik Hesseldahl http://newenterprise.allthingsd.com/?p=1377 When the U.S. Department of Interior said it would move to using Microsoft’s cloud-based email and collaboration services, it was seen as a big validation of cloud computing by a big organization. That is, unless you’re Google.

In November, Google sued the Department of Interior, arguing that the Google Apps platform was frozen out of the bidding. Today, a federal judge, Susan Braden, sided with Google by issuing a preliminary injunction preventing the department from deploying Microsoft’s Business Productivity Online Suite. Braden also found that Google had made a preliminary showing that the department had violated a 1984 regulation on competitiveness in government contracts.

Google and a reselling partner, Onix Networking, had argued in court that the Interior Department’s request for bids specifically excluded Google Apps by stating the system had to include the Microsoft product.

The case isn’t over, but it’s certainly not looking good for the Interior Department, which may be forced to reconsider Google Apps for the contract.

]]> http://allthingsd.com/20110105/judge-google-was-excluded-microsoft-favored-in-federal-contract/feed/ 3 http://allthingsd.com/20110104/australias-scoopon-wont-sell-url-for-286000-so-groupon-sues/ http://allthingsd.com/20110104/australias-scoopon-wont-sell-url-for-286000-so-groupon-sues/#comments Tue, 04 Jan 2011 23:30:56 +0000 Tricia Duryee http://emoney.allthingsd.com/?p=1165 Here’s the kind of attention you get when everyone thinks you have deep pockets.

In an appeal to customers today, Groupon co-founder and CEO Andrew Mason explained in a blog post why it is suing an Australian competitor, Scoopon.

And the story is pretty juicy: Gabby and Hezi Leibovitch, two brothers who started Scoopon in Australia, have purchased the Groupon.com.au domain name, registered the company name of Groupon Pty Limited and tried registering the Groupon trademark in Australia.

“The way we see things, this is a classic case of domain squatting–an unfortunate reality of the Internet business,” Mason wrote. “As Groupon became internationally known, opportunistic domain squatters around the world started to buy local Groupon domain names, thinking that we’d eventually be forced to buy them at an insane price.”

But wait, there’s more: Groupon offered the brothers $286,000 for the Groupon.com.au domain and trademark, and Mason claims they accepted the offer.

Then they changed their minds (presumably around the time Groupon turned down $6 billion from Google, and then was rumored to be raising nearly $1 billion in fresh capital). No doubt, the Leibovitch brothers now have a much richer number in mind.

To that end, Mason says his company is choosing the path of last resort: “Left with no other options, we’ve filed a lawsuit against Scoopon, claiming that their Groupon trademark was filed in bad faith (amongst other things).”

In the meantime, the nearly $300,000 offer continues to stand, and Groupon has opened shop under an alias: www.stardeals.com.au/.

If a court doesn’t come down on his side, Mason is hoping customers will: “Apologies–we don’t like to bother our customers with these things, but felt you deserved to understand why it’s taking us so long in Australia,” he wrote.

A “Groupon in Australia” Facebook group has been created to raise awareness of the situation, and by this afternoon had already counted 568 members.

]]> http://allthingsd.com/20110104/australias-scoopon-wont-sell-url-for-286000-so-groupon-sues/feed/ 2 http://allthingsd.com/20101228/paul-allens-suit-against-tech-industry-take-two/ http://allthingsd.com/20101228/paul-allens-suit-against-tech-industry-take-two/#comments Wed, 29 Dec 2010 07:34:41 +0000 Ina Fried http://mobilized.allthingsd.com/?p=1445 Paul Allen’s Interval Licensing has revived a patent lawsuit against a number of tech companies, including Google and Apple, filing a new set of court papers on Tuesday.

Allen sued Google, Apple, AOL, eBay, Facebook, Netflix, Office Depot, OfficeMax, Staples and Yahoo in August, but the case was dismissed earlier this month, with Tuesday set as the deadline for Interval to file an amended complaint. As noted by open source industry blogger Florian Mueller, the new claims include allegations that Android infringes on Interval patents, adding to a growing list of legal claims being leveled in the mobile arena.

]]> http://allthingsd.com/20101228/paul-allens-suit-against-tech-industry-take-two/feed/ 0 http://allthingsd.com/20101223/night-table-reading-the-fccs-net-neutrality-rules-in-full/ http://allthingsd.com/20101223/night-table-reading-the-fccs-net-neutrality-rules-in-full/#comments Thu, 23 Dec 2010 23:02:09 +0000 Arik Hesseldahl http://newenterprise.allthingsd.com/?p=1057 It’s now been two days since the Federal Communications Commission voted to pass its controversial network neutrality rules. The consensus view is clear–no one is terribly happy with this bit of government policy making, and even those who supported it did so with lots of reservations .

Now we have a full text of the actual rules, weighing in at a voluminous 194 heavily footnoted pages, which just became public on the FCC’s Web site. As with some of the other documents relating to this, I’ve uploaded this one to Scribd and embedded it below. This is the document that corporate lawyers, lawmakers and other policy wonks at think tanks and trade associations will be combing through in the coming weeks and months in hopes of either watering down or strengthening the rules, depending on your point of view. Others will be looking through this text for provisions they can challenge in court. And congressional Republicans have already promised to hold hearings next year and will probably try to find a way to legislate these rules out of existence.

FCC-10-201A1

]]> http://allthingsd.com/20101223/night-table-reading-the-fccs-net-neutrality-rules-in-full/feed/ 0 http://allthingsd.com/20101221/the-fcc-votes-a-new-internet-dawns-like-it-or-not/ http://allthingsd.com/20101221/the-fcc-votes-a-new-internet-dawns-like-it-or-not/#comments Tue, 21 Dec 2010 16:50:16 +0000 Arik Hesseldahl http://newenterprise.allthingsd.com/?p=873 There is only one point of consensus that has emerged from today’s imminent 3-2 vote by the Federal Communications Commission on network neutrality rules proposed by Chairman Julius Genachowski: All concerned are dissatisfied with the result.

Even those who are voting in favor are doing so holding their noses. Of the five voting members of the commission, only one, Democrat Michael Copps, had been considered remotely likely to vote with the two Republicans who had pledged to vote against it. When he announced he would vote in favor yesterday he said he was doing so with reservations.

Republicans, both on the commission and in Congress, sense an opportunity, the size of which you can discern by the size of the headlines topping the Drudge Report during the last few days. Genachowski is being portrayed in 80-point type as the villain “Julius Seizure” out to ruin the freewheeling Internet by shackling it with a list of bureaucratic rules and regulations. The irony is that the current proposal on the table is a dramatic step back from a far more ominous one: Immediately after losing a court case brought by the cable company Comcast over the extent of its legal authority to regulate the Internet, Genachowski considered reclassifying the Internet under the FCC’s Title II authority, which governs regulation of the phone system. This was an extreme response, thankfully abandoned, that would have certainly warranted the nickname. The current proposal is by no stretch of argument so extreme that it amounts to a seizure.

But rules they are, and no one likes new rules where none existed before, least of all multibillion dollar corporations like Comcast and Verizon. Having established in the courts that they have the right to control the use of certain applications that impact the performance of their network–or, more precisely, the fact that the FCC has no legal authority to tell them not to exercise such control–they’re now going to be required to disclose how and why they exercise such controls.

The rules allow for “reasonable network management” by service providers, which is a squishy phrase. Internet companies like Amazon and Skype, which aren’t service providers themselves, argue that the new rules are weak and don’t protect them from service providers that may “reasonably manage” their products and services out of existence. Get your stopwatches ready, because there will almost certainly be several lawsuits over what constitutes “reasonable network management.”

The scenario is easy to imagine: Embittered broadband customers band together in a class-action lawsuit complaining that their provider refuses to allow them to experience the latest video streaming or video chat application. They argue that the provider favors another inferior application that it happens to own. The provider argues that it’s only engaging in “reasonable network management” allowed under FCC rules, leaving judges to tease out what that means. Lawyers are probably already shining up their Ferragamos as they polish their legal briefs.

These cases are already appearing. Comcast and Level 3 Communications are sparring over the terms under which Comcast conveys to its customers video streaming traffic sent by Level 3 associated with its relationship with Netflix. Level 3 has turned to the FCC and the U.S. Department of Justice at a delicate time for Comcast: It wants federal approval for its takeover of NBC Universal, and wants it now.

The FCC’s new rules, rightly or wrongly, make Comcast and companies like it more vulnerable to similar threats by regulators in response to actions taken in their own reasonable self-interest. Until today, this sort of dispute between companies would normally be worked out by negotiators in private, not regulators on the public dime. No matter whose side you tend to favor, the prospect of government gumming up the work with endless busywork isn’t a happy side effect.

The rules themselves may also be challenged. There’s still a huge question–as FCC commissioners Meredith Atwell Baker and Robert McDowell have both argued in recent newspaper op-eds (one in yesterday’s Wall Street Journal, the other in today’s Washington Post)– about the FCC’s legal authority over the Internet. House Republicans are already making noise about jumping into the policy fray, and another court challenge is probably likely.

The one overarching mission concerning the Internet that the FCC can undertake with some measure of agreement is that of widening the availability of the network to places it doesn’t adequately reach and to people who don’t have broadband access for economic or other reasons. In an age where so much of daily public business–from applying for a job to becoming an informed voter in the presidential election–all but requires a broadband link, far too many remote and rural areas are the victim of market forces where the investment to build infrastructure in sparsely populated areas outweighs the potential for a reasonable return.

Genachowski has argued that by adapting the Universal Service Fund (which helped the telephone network penetrate these same underserved areas) for broadband, providers could get this otherwise impossible job accomplished. Extending broadband availability was one of President Obama’s campaign promises, but the $7.8 billion in federal stimulus funds awarded under the auspices of the National Telecommunications and Infrastructure Administration and the Department of Agriculture’s Rural Utilities Service have not and will not make a significant dent in the problem.

Why not focus on what is clearly the more important problem and without question in the national interest, and leave the finer points of how service providers and Web companies carry content to sort themselves out? Like it or not, a new, more legally complicated Internet is here.

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