That’s the gist of Apple’s response to Samsung’s motion to compel Apple to provide it with a copy of the HTC deal. Evidently, Samsung’s legal department told Apple it was happy to accept a redacted version of the document, and the iPhone maker has the emails to prove it.

“HTC has advised the parties that it is willing to acquiesce to Apple’s production of the agreement on two conditions: (1) the Agreement must be marked Highly Confidential – Attorneys’ Eyes Only under the protective order; and (2) the consideration amount must be redacted,” Apple said in a new court filing. “Samsung has agreed to both conditions.”

Samsung will almost certainly contest this, but in the meantime it will have to make do with a redacted version of the agreement, with licensing fees explicitly excluded.

Update: Samsung has indeed contested Apple’s motion, arguing it didn’t moot its request for an unredacted version of the HTC licensing agreement simply because it also agreed see a redacted copy of it. And Wednesday afternoon magistrate judge Paul Grewal held an emergency hearing on the issue, ultimately ruling that Samsung’s legal team — but not its executives, or anyone else — should be allowed to see the entire agreement including license fees.

“Although the court is more than a little skeptical of Samsung’s arguments regarding the financial terms, Rule 26 supplies a broad standard of relevance,” Grewal wrote in his order. “Many third parties to this case have had their licensing agreements disclosed – without any redaction of financial terms – subject to an Attorneys-Eyes-Only designation because the confidential financial terms were clearly relevant to the dispute between Apple and Samsung. HTC is not entitled to special treatment, especially when it has recognized the general sufficiency of the protective order and the integrity of Samsung’s outside counsel. Accordingly, Samsung’s motion to compel production of an unredacted version of the settlement agreement is GRANTED. Apple shall produce the unredacted document without delay subject to an Attorneys-Eyes-Only designation under the protective order already in place in this case.”

Errata: An early version of this post incorrectly stated that the redacted version of the Apple-HTC settlement agreement included just 33 words.

In the midst of last week’s earnings call, after the company had released strong results, Demand Media CEO and co-founder Richard Rosenblatt made an unusual declaration about its once-tight affiliation with now-disgraced professional racing cyclist Lance Armstrong.

Said Rosenblatt about the Santa Monica, Calif., social content company to Wall Street analysts about the status of the relationship in the wake of Armstrong being stripped of his many Tour de France titles:

“Our relationship is with the Livestrong Foundation, not with Lance, and we are aligned in empowering people to live healthier lives, and we support the important work of the foundation. We have built a powerful destination, popular applications and a very engaged community. None of this has changed and we have seen no material impact on the consumer traffic or metrics.”

In reality, the once-close relationship between Demand and Armstrong ended a while ago, even though the athlete’s cancer-fighting charity has been a high-profile shareholder since early 2008. At the time, Demand struck a four-year exclusive deal with Livestrong to create a health and wellness site, and also got a perpetual license to the Livestrong.com domain name.

But Armstrong — despite appearing at the Web 2.0 conference in 2008 with Rosenblatt — eventually had little to do with the Demand brand.

And it is down to zero involvement now, after he recently stepped down as chairman of Livestrong, due to the doping controversy. That mess has caused a lot of the brands he was tied up with, such as Nike, to disassociate themselves from Armstrong himself, although not from the Livestrong Foundation.

That has also been Demand’s direction, especially given that the commercial Web site, which has become the No. 3 health property in the U.S., is one of the company’s strongest ones. That adds up to about 26 million monthly unique visitors, a gain of 97 percent since last year.

But with that success, why did Demand make the statement at earnings — as well as putting up a blog post recently clarifying that it had “no direct relationship” with Armstrong?

Apparently, according to several sources, Demand had to move to be as explicit has possible, not because of consumers, but because of advertisers.

“The advertisers did care about the affiliation,” said one source. “So it was time to say in no uncertain terms to them and shareholders that Lance Armstrong has nothing to do with Demand.”

Or, as the blog post in late October noted rather strongly:

“We don’t believe the struggles of one individual should detract from the millions of real people who have benefited from work that’s been done to prevent cancer and improve the lives of those unfortunate enough to have it.”

Or, as they say in bike racing, Armstrong had simply become too much of a wheel sucker.

In an interview with The Telegraph earlier this month, RIM CEO Thorsten Heins said the company is investigating different options for licensing BB10.

Now he’s gone ahead and suggested to Bloomberg that the company has determined that it is indeed possible to license the OS the same way it does the QNX platform on which it was developed.

“QNX is already licensed across the automotive sector — we could do that with BB10 if we chose to,” Heins said. “The platform can be licensed.”

That’s as definitive a statement on the BB10 licensing issue as we’ve heard yet. And while it’s certainly not confirmation that RIM will license BB10, it’s a pretty clear indication that it plans to — assuming it can find someone interested in licensing it.

And that’s the likely purpose of this steady string of licensing patter appearing in the media: A fishing expedition for possible licensees. After all, who might possibly be interested in the as-of-yet unreleased and unproven OS? Nokia has cast its lot with Microsoft’s Windows Phone OS. And Motorola, Samsung and HTC have all cast theirs with Google’s Android OS. Both platforms have broader and stronger app ecosystems than RIM’s.

“We don’t have the economy of scale to compete against the guys who crank out 60 handsets a year,” Heins told the Telegraph. “We have to differentiate and have a focused platform. To deliver BB10 we may need to look at licensing it to someone who can do this at a way better cost proposition than I can do it. There’s different options we could do that we’re currently investigating.”

Those remarks add significantly more heft to Heins’s earlier, more tentative suggestion that RIM was mulling such a move. And it’s clear from them that the company is sketching out just what a BB10 licensing model would look like. Here’s Heins again:

You could think about us building a reference system, and then basically licensing that reference design, have others build the hardware around it — either it’s a BlackBerry or it’s something else being built on the BlackBerry platform.

So if licensing out BB10 makes sense for RIM from a financial perspective, and a strategic one as well, the company may go down that path. Of course, it will have to find some willing licensees first, and with Google’s Android and Microsoft’s Windows Phone already commanding a lot of device manufacturer attention, that might take some doing.

Top execs at Yahoo and Facebook have been hammering out the outlines of a deal over the last several days to end their contentious patent infringement litigation, according to multiple sources close to the situation.

While that could change, sources said a settlement could happen in the coming weeks and that the advanced negotiations will put aside the lawsuits and counterclaims between the one-time close partners and return them back to what could be an even closer relationship.

The key terms being discussed, said sources, include a massive cross-licensing of patents between the Internet giant and the social networking kingpin and an even deeper integration of Facebook into Yahoo and vice versa, which has been a key element of improved engagement of late on Yahoo.

One possible glitch: While Facebook has indicated a willingness to perhaps buy some of Yahoo’s valuable patents, sources said the company is not likely to fork over a massive cash payment to Yahoo as part of a deal.

In a slap to Yahoo’s lawsuit, Facebook recently paid Microsoft $550 million to both buy and also license key patents that the software giant had acquired from AOL, and sources said it is unlikely to do the same for Yahoo.

“Facebook paid a lot of money for patents already, just not to Yahoo,” said one person close to the situation.

That could be a tough reality to swallow for Yahoo, especially since its lawsuit was predicated on the notion that it could get a huge payoff from Facebook in any settlement.

That was the argument used by former CEO Scott Thompson, under whose leadership the legal action was first filed, to convince Yahoo’s board to move forward. The lawsuit caused much consternation in Silicon Valley, but Yahoo’s directors had been told that success could mean many billions of dollars from Facebook to end the fight.

But Thompson was recently ousted from his job over a resume-padding controversy, and it appears that Yahoo board members who pushed for the lawsuit are now distancing themselves from its filing.

In other words, it was all Scott’s fault, so now that he’s gone: Bygones!

Let’s be clear: It wasn’t his doing alone by any means, but Yahoo is now facing an uphill and long-term battle in the case to win anything at all.

That’s why its new interim CEO, Ross Levinsohn, along with several board members, including Third Point’s Daniel Loeb, have stepped up talks.

(Yahoo’s on a bit of a goodwill mission, recently adding activist shareholder Loeb as a Yahoo director after settling its proxy fight with him, as well as finally completing a complex asset sale deal with China’s Alibaba Group.)

Interestingly, for Yahoo’s side, this negotiation now appears to be more of a group effort — with board members actively involved — than a solo performance by Levinsohn as the company presses for a solution now.

Facebook is also very motivated to get rid of the problem, especially because its recent borked IPO has taken up a lion’s share of the media and investor perception and attention. Sources said execs there hope that a successful settlement with Yahoo — as well as an expected announcement of an integration with Apple’s iOS at the Worldwide Developers Conference in mid-June — will return the focus to forward momentum by Facebook.

To underscore the importance of settlement, the discussions are being led by the social networking site’s powerful COO, Sheryl Sandberg, along with its VP of partnerships, Dan Rose.

Sandberg and Levinsohn (and his posse of hey-can-I-help-too Yahoo directors) talked in depth about the settlement at the recent 10th D: All Things Digital conference earlier this week, after a number of previous discussions had already taken place.

In spite of intense criticism against its patent infringement lawsuit in March, Yahoo filed additional claims against Facebook today.

“Today Yahoo! filed additional claims against Facebook in U.S. District Court in San Jose related to two additional patents on which Facebook infringes. Today’s filing underscores the breadth of Facebook’s violation of Yahoo!’s intellectual property,” said a Yahoo spokesperson in a statement. “As we have stated previously, Yahoo!’s technologies are the foundation of our business that engages over 700 million monthly unique visitors and represent the spirit of innovation upon which Yahoo! is built. We intend to vigorously protect these technologies for our customers and shareholders.”

Facebook had filed its own counterclaims against the Internet portal over various social networking patents and also has recently spent hundreds of millions of dollars for patents and licenses from both IBM and Microsoft to bolster its portfolio.

In its filing, Yahoo’s legal aces got all hot and bothered that Facebook did this, especially the part about handing over piles of dough to others (and not Yahoo).

“However, on information and belief, Facebook lacks a good faith basis for most, if not all, of its counterclaims, particularly those patents that it purchased from others,” read the filing. “All eight of these patents were purchased by Facebook in the past five months, and several of these patents were purchased (independent of any separate technology acquisition or merger) after Yahoo! filed its complaint in this action. On information and belief, many, if not all, of these patents were acquired by Facebook for purposes of retaliation against Yahoo! in this case.”

Uh, duh! (Also, not to be picky, but Yahoo also bought a lot of the patents they are asserting way back when from its acquisition of Overture and did not invent all these innovations, either.)

I am awaiting a response from Facebook, which will probably be along the lines of: Byte me.

[UPDATE: I was right -- here's the comment:

"We remain puzzled by Yahoo's erratic actions. We disagree with these latest claims and we will continue to defend ourselves vigorously."

(Erratic, by the way, means desperate and pathetic in Facebook-speak.)]

Here is the latest filing:

Yahoo Reply to Counterclaims 4-27

Shares rose 2.1 percent to $30.75 after hours on a stronger-than-expected core profit. Oracle’s shares had climbed 17 percent so far this year through Tuesday’s close.

Read the rest of this post on the original site »

Remember when Fortune magazine wrote in September that Facebook co-founder and CEO Mark Zuckerberg had reportedly bagged a bison as part of a “personal challenge” to eat only what he had killed?

Well, proof of that is hard to miss, now that the ginormous mounted head of said dead bison has been hung on the wall of a Facebook conference room used by the social networking site’s COO Sheryl Sandberg.

Zuckerberg placed it there recently as a prank, to surprise his top exec with the installation of the very hairy bison when she was away from Facebook’s Silicon Valley HQ.

And surprised she was when she got back and was faced with the creature, which pretty much takes up the whole room, as you can see above and below.

(And, let me just say on a personal level, like a digital version of the “Murder She Wrote” lady, solving the mystery of this geek-on-bison killing is a whole lot more satisfying than getting a pile of internal Yahoo memos.)

The bison has now been nicknamed Billy and also sports a Facebook-branded baseball cap and occasional hoodie — natch! (My suggestion if you want to use a dead beast metaphor most effectively here would be to clad it all in Google swag.)

While he never confirmed it, Zuckerberg had teased the crowd about the possibility of his hunting prowess at the f8 developers conference this fall in his keynote speech, displaying his Facebook page that had a picture of what he had tagged “Bison Burgers.”

In fact, it’s been quite a lot of bison for the famous entrepreneur since he felled the majestic beast. According to Wikipedia, bison usually weigh 700 to 2,200 pounds, but can be as much as 3,800 pounds. That’s a lot of burgers!

To get them, Zuckerberg learned the most humane approach and then shot the beast in California, after obtaining a hunting license and, presumably, a very big gun.

Clearly, he was serious when he told Fortune in May that “the only meat I’m eating is from animals I’ve killed myself.” Among the early victims, which grew in size, were a lobster, a chicken, a pig and a goat.

At this time, the Winklevii are still roaming the plains — and it would be illegal and just plain mean on Zuckerberg’s part to frag them any more than he already has.

So, he went for the bison, the next biggest beast in his cross-hairs.

Its head will be moved to Facebook’s new headquarters today along with the rest of the company, who will now work in spacious new digs.

Which, I am told, could easily fit a herd of elephants — but let’s not go there.

Tomorrow, Yahoo will announce its second-quarter earnings and, once again, Wall Street is expecting yet another meh performance from the Internet giant.

In his “cheat sheet” report, Citi analyst Mark Mahaney’s take is pretty typical of the sentiment of investors weary of waiting for a rebound in Yahoo’s growth.

“From $15, we believe YHOO shares have upwards bias,” wrote Mahaney, “but we don’t have real conviction.”

That’s become the unfortunate norm for Yahoo, whose management has continued to struggle with a variety of issues, from its ongoing talent drain to an unexpected and still unresolved fight with its main partner in China to the troubles in its search partnership with Microsoft to the overall lack of ability to turbocharge its advertising and other businesses as has been long promised.

While it is certainly not for lack of trying, the prospect of Yahoo CEO Carol Bartz wheeling out another series of excuses for the lack of turnaround and — something many have been looking for most of all — a clearer strategic vision for the company on the earnings call on Tuesday, will surely not produce a dulcet impact on its depressed shares.

The stock has continued to dip well below $15 a share, down almost six percent last week and 13 percent for the last six months.

That’s why some think that Yahoo’s interest in bidding for the Hulu premium video service, which is being sold by its media giant owners, might be just the bold and risky move to get the company centered around.

With the online video ad business growing and the need for Yahoo to focus its many ambitions, some think Hulu could be a key piece in becoming the “premier digital media company” that the Internet giant has recently taken to calling itself.

By doubling down on what Hulu represents — that would be the premium online video business — it’s a fast-growing category Yahoo’s large sales force would be well-suited for.

In addition, a purchase of Hulu could give Yahoo some much-needed talent in the arena, including its CEO Jason Kilar and others.

“Of all the buyers, Yahoo is the most in need of a purchase to change its paradigm,” said one observer. “If it could not pay too much, Hulu would give Yahoo some differentiating that it really needs.”

Of course, paying too much for Hulu is a key consideration mentioned by all who are looking at it, including Google, AT&T, Amazon and others.

How to determine the value of Hulu’s content licenses, both now and later — given that once those rights expire whoever owns Hulu will eventually have to compete in acquiring the often high-priced material from Hollywood — is the biggest question they are asking.

Is that worth $1 billion or $2 billion? Can a new owner keep up the momentum needed to successfully maintain the Hulu business well after those content rights expire? And, of course, which company would be best suited to accomplish this task?

Yahoo certainly has all the potential to be at the front of that line, despite being managed erratically for far too long. But — also as usual — there is the endless debate internally over whether buying it will fix problems.

Whatever happens, most agree that something dramatic needs to happen at Yahoo, rather than the continual story of flatness that has been coming out of the company for far too long.

And we’ll all see if that’s improved after the close of the market tomorrow, when Wall Street is expecting Yahoo to report revenue of $1.11 billion on earnings of 18 cents.

That’s a revenue decline of two percent, which is not great, especially considering Google’s strong performance last week. Then again, it’s better than the first quarter’s six percent drop in revenue for Yahoo.

Like I said: Meh.

Here’s a handy helper for those following the fate of the Hulu premium online video service, whose noisy efforts to sell itself have gotten a lot of attention of late:

“In preliminary talks” = “hawking itself to one of a half dozen big moneybag tech companies who will visit with Hulu’s bankers and management to see its presentation at Morgan Stanley’s office in Century City in Los Angeles.”

Last Friday, for example, that meant a look-see for Microsoft execs, to show the software giant the story of how paying top dollar for the popular Hulu would be a great investment.

This week, sources said, Yahoo will get the expected gander at the books too, among the other companies targeted by Hulu as part of a sales process in its very early stages.

Among those companies on the short list, sources said, along with Microsoft and Yahoo are: Google, Verizon, AT&T and Amazon.

None of these should come as a surprise, since they all have a big interest in the digital distribution of content business.

Google is perhaps the most interesting and difficult of the group, due to both its massive YouTube unit and the even more massive interest by government regulators about its disturbing massiveness.

Amazon is the company that seems most suited as a Hulu buyer, since it already makes its business selling and distributing content. In addition, Hulu CEO Jason Kilar was a former exec — bringing a certain level of familiarity and presumably much less of the grumpy disgruntlement that he experienced with Hulu’s current media giant owners.

Microsoft seems like the longest shot and least enthusiastic, although it certainly could afford it.

As for Yahoo: Good lord, it needs something sexy to tell weary investors.

Not in the initial round, but other possible acquirers Hulu is targeting: Facebook, Netflix, Samsung and Liberty Media.

And definitely not among those kicking the tires: Disney, News Corp. and Comcast, the trio of partners who own Hulu, along with Providence Equity Partners.

The big question, of course, is whether media-focused Apple — a notorious buyer of almost nothing — would be interested in Hulu.

These blind dates with the best possible buyers will presumably give each insight into Hulu’s business and give Hulu information on what they are looking for.

Sources who have heard the pitch said Hulu is positioning itself as an inevitable competitor to cable, which seems an odd position to take, unless it can get regular access to the kind of top-drawer content that consumers want.

And that will be the most important issue for anyone buying Hulu: The time and terms of rights to the television and movie content on the site, which has been a critical part of its success.

Buyers I have interviewed said Hulu has to offer at least an 18-month license for its content and a pile of rights to hit shows to differentiate itself from competitors.

As Peter Kafka wrote, Hulu buyers would indeed get exclusive content, but with strings attached.

He also noted that the latest content licenses for Hulu’s owner/partners — Disney’s ABC and News Corp.’s Fox — have recently been completed, deals that will stay intact if Hulu is sold.

Unlike Netflix, which has had to pay top dollar for a small pile of premium content while deftly using a large archive of older content to attract subscribers, Hulu’s success has had a lot to do with more access to popular current shows offered by its media giant owners.

Those shows include TV hits such as “The Office” and “Glee.”

That access has become a point of contention with those owners, who have differed with Hulu management about what comes next for the mostly advertising-supported site, even though its slick product has been a clear hit with consumers.

Of course, some speculate that Hulu might not sell at all, just as it never went public as it had said it might do previously. In that case, it will be interesting to see what will become of Hulu once the music stops.

(And, if anyone would like to email me the Hulu presentation or notes on it, please do, so I can formulate a bid myself!)

But, until this deal churns slowly, leakily and loudly forward — let’s enjoy some apt Hulu content. As usual, the fun version of ABBA’s “Dancing Queen” by the kids from “Glee” was not available on the site.

Thus, I selected frequent “Glee” guest star Gwyneth Paltrow belting out Joan Jett’s “Do You Wanna Touch Me” on the show, as a good alternate metaphor for the sales process:

They shouldn’t be.

Pandora has always been up front about the fact that royalties are its biggest expense. And that those fees increase in lockstep with the music service’s popularity.

But while spending half of every dollar it brings in on royalties is a burden, it could be worse. A lot worse.

Prior to the summer of 2009, when Pandora and other Web services negotiated a new royalty deal, Pandora’s music bill was more than 100 percent of its revenues.

Check out this table from Pandora’s S-1, which breaks out each line item in its P&L as a percent of revenue. Notice how brutal the first two quarters of 2009 were. And see how much more tolerable (or at least less awful) they became after July 2009, when Pandora got its new rates (click image to enlarge):

See? Now 50 percent doesn’t look that bad.

And while Pandora’s music fees are hefty, the system that generates those bills is really one of the company’s strengths.

That’s because unlike other music services, from Apple’s iTunes to Spotify, Pandora doesn’t have to negotiate with individual labels and publishers to use their stuff.

Instead, it takes advantage of a U.S. law that created a “compulsory license” for Internet radio. That allows anyone to stream any recorded music they want, as long as they’re willing to pay for it. And as long as they’re functioning as a “Webcaster” and not an on-demand “interactive service.”

The advantages of using the compulsory license are huge. It means Pandora never had to ask the big labels for permission to use their stuff, or pay out giant advances or equity stakes to get a deal done.

While the licenses do come with restrictions–that’s why Pandora doesn’t let listeners request individual songs, and limits the number of times users can skip a song per hour, etc.- they haven’t dissuaded some 80 million people from using the service.

Those licenses don’t exist outside of the U.S., which is one reason Web radio services are such a rarity everywhere else, and why Pandora may struggle with international expansion.

And the fees that Pandora does pay will escalate each year until 2015, when it has to negotiate a new royalty agreement with the music industry.

It’s always possible that the rates will get significantly worse for Webcasters then, and that Pandora ends up in the shape it was in prior to the summer of 2009.

But for the next four years, at least, Pandora thinks it can work with the music bills its users are generating. Now we’ll see if investors agree.

That’s what Google did today, announcing that its Chrome browser will ship without native support for H.264, the video specification on which the Web is arguably standardized (certainly it’s the one prefered by folks like Apple and Microsoft). Instead it will support WebM, Google’s open-source, royalty-free codec, and Theora, another open compression developed by the Xiph.org Foundation.

“We are changing Chrome’s HTML5 video support to make it consistent with the codecs already supported by the open Chromium project,” Google said in a post to the Chromium blog. “Specifically, we are supporting the WebM (VP8) and Theora video codecs, and will consider adding support for other high-quality open codecs in the future. Though H.264 plays an important role in video, as our goal is to enable open innovation, support for the codec will be removed and our resources directed towards completely open codec technologies.”

A ballsy move on Google’s part and one that will certainly spark off the video codec contretemps once more. Sadly, it’s going to make the the HTML 5 transition even more messy than it already is. Right now, video can be encoded in H.264 and served up to pretty much any browser or mobile platform–using a Flash wrapper if necessary. But once Google ends support for H.264, video producers will have to encode their content a second time to play natively in Chrome.

Which seems unfortunate. Particularly because Google is billing its decision as a move to free, open standards and away from proprietary ones like H.264 that must be licensed. By ending support for H.264, Google is actually encumbering video producers with additional costs. Said SmugMug CEO Don MacAskill, “I’m left with two choices: Gulp and double my costs on an unknown tech, or return to Flash as primary solution. Ugh. Thanks, Google.”

But Flash isn’t free and open standard, either. If Google’s goal is to “enable open innovation” shouldn’t it be dumping Flash from Chrome as well? Evidently, that’s not part of the master plan which includes Adobe as a WebM partner …

PREVIOUSLY:

• Google’s “Royalty-Free” WebM Video May Not Be Royalty-Free for Long
• Google Open Sources VP8 Video Codec. Will Apple, Microsoft and Intel Use It?

The third round was led by Balderton Capital, with existing investors Google Ventures and Highland Capital Partners also participating. To date, the company has raised roughly $20 million.

SCVNGR lets users check-in to locations using their Android phone or iPhone, much like Foursquare does. The gaming component is that users earn rewards by participating in challenges that are often designed to bring gaming elements to real life.

A challenge may be something as easy as scanning a QR code or checking in, or as complicated as making origami art out of leftover foil from a burrito (and then taking a picture to prove it). A reward may include a discount from a local retailer or restaurant, or even a free cup of coffee (perhaps for multiple check-ins).

Seth Priebatsch, who calls himself the chief ninja of SCVNGR, says the capital comes after a year of achievements for the Cambridge, Mass.-based company.

After its first consumer-based apps launched this summer, it garnered half a million users after 20 weeks and is coming up on one million users soon. That builds on its enterprise business, which allows local businesses, universities, museums and others to create their own challenges for their customers or students. Those businesses often must license the software from SCVNGR.

UPDATE: Priebatsch declined to say what the company’s valuation was in the round, but TechCrunch reports that it is hearing from one source that it was raised at a valuation of just over $100 million.

Priebatsch said the capital will support the 51-employee company’s growth, and will also be spent on exploring international opportunities and the development of further game mechanics that can make the apps more fun, rewarding and entertaining. The app will also soon come to the BlackBerry platform.

Priebatsch argues he’s building something much more compelling than a pure check-in app. “The appeal of a check-in as a standalone entity is really compelling for only a small portion of the total audience out there. This is something fun, unique, and something social. That’s a no-brainer.”

Consider this: In 2009, HTC, Samsung and LG accounted for 67 percent of Windows Mobile shipments. In the third quarter of 2010, those same companies accounted for 44 percent of Android handset shipments. Motorola and Sony Ericsson, also longtime Windows Mobile licensees, accounted for an additional 30 percent.

With Android commanding that kind of OEM attention, Microsoft is going to have to work harder than ever to rewrite the weak mobile story it’s written for itself over the past few years.

“To ensure Window Phone 7’s success, Microsoft must sign up virtually all of the name brand smartphone vendors who deserted Windows Mobile for Android when Microsoft failed to modernize the operating system for three years,” says Needham analyst Charlie Wolf. “Microsoft has signed up three of them and has two to go. Google would argue that it has the upper hand in this tussle because it licenses Android for free while Microsoft charges a licensing fee (albeit a small one compared to its PC licensing fees). But Microsoft simply has more at stake.”

And it knows it. Which is why it’s putting so many marketing dollars into Windows Phone 7.

Says Wolf, “We suspect the company will devote a material portion of [its marketing budget] to buy the support of the leading smartphone manufacturers.”

The Kayak iPad app

Kayak had revenue of $128 million for net income of $6.2 million through Sept. 30 of this year, up from $86.6 million in revenue and net income of $10.4 million last year. The company significantly increased its marketing spending in that period to $69.1 million from $36.0 million. It has been profitable since 2008.

Kayak is in a bit of a precarious position, since it licenses fare information from ITA Software, which Google has agreed to buy. This is a significant expense; Kayak said in the filing it expects to pay ITA $21 million from the beginning of 2010 to the end of 2012. The company admitted that Google messing with ITA could have a “significant negative effect” on its business.

However, Kayak sought to declare its independence from search, saying very little of its traffic comes from Google and the like. The company contended this is because its users are loyal to its brand. So far this year, 72 percent of Kayak queries came from direct visitors to its site, 15 percent from advertising and only eight percent from users referred by search engines. Kayak had 469 million user queries through Sept. 30, with year-over-year growth of 37 percent.

Kayak also has a contract to show Google ads. The filing reports that 15 percent of Kayak advertising revenue so far this year has come from Google, and eight percent of total revenue (the other source of Kayak revenues is referrals).

Kayak is trying to push itself as a mobile growth story, with four million downloads of its mobile apps so far. The company had joked earlier this month that it was putting out its own phone (riffing on rumors of a “Facebook phone”) called the KPHONE and including features like an “actual igniting signal flare” and automatically dialing of your mom every 15 minutes “because you are a terrible person and seriously you never call.” Obviously that sense of humor doesn’t come through in the S-1.

Called as a witness for Oracle, Catz reiterated an earlier point made by Oracle CEO Larry Ellison, saying that had SAP licensed the materials that its TomorrowNow subsidiary ultimately pilfered, it would have cost “billions.” She also reminded SAP’s legal team that her email on SAP/TomorrowNow as a competitive threat was written without knowing about TomorrowNow’s copyright infringement.

Worse, she dismissed SAP’s offer of $40 million in damages as laughable. “SAP paying us damages of $40 million would be a reward for their bad behavior. “It’s like taking someone’s $2,000 watch and hocking it for $20, and then offering to give us $20. It’s crazy. It completely undervalues the entire basis for our industry.”

A powerful jab, and one that’s making the rounds in media reports on the trial today.

PREVIOUSLY:

• Oracle Enlists Process Servers, Not PIs, to Find HP CEO
• Oracle-SAP Trial: Ellison Swaps Katana for Poison Darts
• Objection: Mr. Ellison Is Referring to the Defendant as “Choleric of Temper” Again
• Oracle Lands Early Shots in SAP Trial
• Your Honor, We Object to Mr. Ellison’s Repeated Use of the Term “Slimy Weasels”
• Oracle to HP CEO: Chicken!
• Oracle Vs. SAP: We Got a Right to Pick a Little Fight–Bonanza!
• SAP’s Tab in Oracle Case: $120 Million and Counting
• Gag Order Denied in Oracle, SAP Trial
• Ellison Taunts HP CEO a Second Time
• SAP to Ellison: Save the Drama for Your Mama
• Ellison to HP CEO: “Warrior, Come Out to Plaaeeay!
• SAP: Please Gag Oracle
• HP Scandal Sucks in New York Times Columnist Over Conflict of Interest
• Welch to HP Board: You Don’t Know Jack!
• Insiders Criticize Ellison For HP CEO Slam
• Was Apotheker HP’s First Choice of CEO?
• HP Names Ex-SAP Chief Apotheker as CEO

Sources in a position to know tell me that the PIs rumored to be searching for Apotheker are actually PSs–process servers, agents charged with delivering subpoenas to their intended recipient. And, as federal law dictates, their search extends no farther than 100 miles from the location of the trial, because if Apotheker is outside that 100-mile radius, they can’t serve him. And Oracle can’t compel him to testify. Which means it’s not really worth the company’s time or effort to hire Dog the Bounty Hunter to track him down in some Schwarzwald hideout.

As Oracle attorney David Boies said during a press conference after Monday’s proceedings, “Because of his role, we think it’s important for the jury to be able to see him live. But evidently, the embarrassment of avoiding trial is less than the embarrassment of testifying. We are trying to serve him. Still.”

PREVIOUSLY:

• Oracle-SAP Trial: Ellison Swaps Katana for Poison Darts
• Objection: Mr. Ellison Is Referring to the Defendant as “Choleric of Temper” Again
• Oracle Lands Early Shots in SAP Trial
• Your Honor, We Object to Mr. Ellison’s Repeated Use of the Term “Slimy Weasels”
• Oracle to HP CEO: Chicken!
• Oracle Vs. SAP: We Got a Right to Pick a Little Fight–Bonanza!
• SAP’s Tab in Oracle Case: $120 Million and Counting
• Gag Order Denied in Oracle, SAP Trial
• Ellison Taunts HP CEO a Second Time
• SAP to Ellison: Save the Drama for Your Mama
• Ellison to HP CEO: “Warrior, Come Out to Plaaeeay!
• SAP: Please Gag Oracle
• HP Scandal Sucks in New York Times Columnist Over Conflict of Interest
• Welch to HP Board: You Don’t Know Jack!
• Insiders Criticize Ellison For HP CEO Slam
• Was Apotheker HP’s First Choice of CEO?
• HP Names Ex-SAP Chief Apotheker as CEO

On the stand in an Oakland, Calif., courtroom today, Ellison was such a picture of moderation and restraint that you almost wondered if his handlers had shot him up before his appearance–like sedating a dog for air travel. As one SAP rep told me, Ellison “was anti-climatic given his vituperative statements of the last weeks.”

Which is true. But his testimony was still quite damning–to my ears anyway. For one thing, he said that Oracle could have charged SAP $4 billion to license the programs that its TomorrowNow subsidiary wrongfully downloaded. For another, he said Oracle would have had trouble paying its employees if it allowed its rivals unfettered access to the software and support libraries at issue in this case.

“I’m not sure we would go out of business but pretty close to going out of business,” Ellison said during questioning by attorney David Boies. “If they could get that software for nothing, we’d have a hard time paying 100,000 employees.”

If that was the case, then why didn’t Oracle make a bigger stink over SAP’s acquisition of TomorrowNow when it was first announced? SAP’s legal team was quick to pick up on this and hammered Ellison, claiming there’s “not a shred of documented evidence” demonstrating Oracle’s concerns. But they didn’t get much of anywhere with that because it turned out there is some.

“When SAP announced the TomorrowNow acquisition,” Ellison said, “I made a public statement….I thought they might cheat around the edges in terms of our copyrights…and I publicly warned them that while they have every right to support our software, they have to respect our intellectual property–[they] can’t just redistribute it without paying for it.”

And, indeed, Ellison did do this during the company’s 2005 analyst day. “SAP has every right to provide support for PeopleSoft applications as long as they don’t violate our intellectual and contractual property rights,” he said. “It might make it awkward for them. That’s our intellectual property, and they should be cautious.”

Driving those remarks was Ellison’s fear at the time that with TomorrowNow, SAP might do Oracle real harm. “I thought this was a major program with a huge potential to do severe damage to Oracle,” Ellison said today, adding that his vision of how SAP planned to go about it wasn’t quite how things played out. “It was a brilliant idea to take our customers, but to execute it properly they had to go out and hire hundreds, if not thousands, of engineers to maintain PeopleSoft and JD Edwards and Siebel. That was going to be expensive. I certainly didn’t think they would simply take our intellectual property and then resell it to their own customers. I never thought that could happen.”

SAP’s attorney, Tharan Lanier, challenged Ellison on these points as well, suggesting Oracle is exaggerating when it claims that TomorrowNow’s infringement jeopardized as much as 20 to 30 percent of Oracle’s customers from its acquisition of PeopleSoft and 10 percent of those from the later acquisition of Siebel Systems. And in the end, Ellison conceded that only about 350 customers were lost as a result of TomorrowNow’s infringement. But he also managed to again suggest that potential losses were far, far greater.

“I think taking our intellectual property is a two-edged sword,” he said. “For [SAP] it means they have access to all our engineering output. They have regulatory updates at the same moment we have them. They have new versions of our software at the same time we have them. They have bug fixes at the same time we have them. So they should be able to provide the same quality of support that we’re providing except that they’re doing it at a very low cost, while Oracle bears the cost of all that engineering.”

The other side of that sword is running an irrational risk by taking our software. That’s a risk I certainly would never, ever undertake.”

PREVIOUSLY:

• Objection: Mr. Ellison Is Referring to the Defendant as “Choleric of Temper” Again
• Oracle Lands Early Shots in SAP Trial
• Your Honor, We Object to Mr. Ellison’s Repeated Use of the Term “Slimy Weasels”
• Oracle to HP CEO: Chicken!
• Oracle Vs. SAP: We Got a Right to Pick a Little Fight–Bonanza!
• SAP’s Tab in Oracle Case: $120 Million and Counting
• Gag Order Denied in Oracle, SAP Trial
• Ellison Taunts HP CEO a Second Time
• SAP to Ellison: Save the Drama for Your Mama
• Ellison to HP CEO: “Warrior, Come Out to Plaaeeay!
• SAP: Please Gag Oracle
• HP Scandal Sucks in New York Times Columnist Over Conflict of Interest
• Welch to HP Board: You Don’t Know Jack!
• Insiders Criticize Ellison For HP CEO Slam
• Was Apotheker HP’s First Choice of CEO?
• HP Names Ex-SAP Chief Apotheker as CEO

[Image credit: Pre-Ellison Samurai image by Artem Mirolevioch]

It’s not clear why Microsoft (MSFT) inked such a licensing deal. But it’s worth noting that at least a few of the patents included are cited in a lawsuit Acacia (ACTG) filed earlier this year against Apple (AAPL), Research In Motion (RIMM), Motorola (MOT) and a bunch of other smartphone makers.

Now, Microsoft wasn’t named in that suit. But it is launching a brand new mobile OS on Monday, which makes the timing of this Acacia deal interesting. At the very least, it makes you wonder if Acacia, which is often decried as a patent troll, has been threatening to add Microsoft’s name to the infringer list.

Just as important: Apple (AAPL) appears to have opened the door for programs originally created using Adobe’s Flash. And it seems to have given the go-ahead to Google’s AdMob mobile ad network, which it looked ready to block earlier this year.

Apple says it will finally publish guidelines for app approval at its iTunes store “to help developers understand how we review submitted apps.” That may mollify developers’ long-standing complaint about seemingly arbitrary rejections at the store.

But Apple’s other changes seem aimed at making peace–or at least establishing a détente–with corporate rivals Google and Adobe. And perhaps mollifying federal regulators asking antitrust questions.

Some tech observers, like Hank Williams, believe that Apple’s statement regarding 3.3.1 and “developer tools” means that the company will now allow developers to port applications originally designed in Adobe’s (ADBE) Flash over to the iPhone/iPod/iPad platform. If so, that’s a big deal, and investors believe that’s the case–Adobe is up 7 percent this morning.  But it’d be nice to confirm that with Apple, too, so I’ve asked.

Meanwhile, note that section 3.3.9 of the agreement is the one that dealt with mobile app data, which made Google’s (GOOG) AdMob and other advertising and analytic companies upset earlier this year. Based on the changes Apple has made, it appears to have finally given Google the all clear to sell ads on its apps, by removing a caveat that only allowed “independent” ad networks to collect performance data. But third-party analytics companies like Flurry, and perhaps Comscore (SCOR), still appear to be shut out.

UPDATE: Here’s the text of the three changes Apple has made to its developer’s license:

3.3.1 OLD:
3.3.1 Applications may only use Documented APIs in the manner prescribed by Apple and must not use or call any private APIs. Applications must be originally written in Objective-C, C, C++, or JavaScript as executed by the iPhone OS WebKit engine, and only code written in C, C++, and Objective-C may compile and directly link against the Documented APIs (e.g., Applications that link to Documented APIs through an intermediary translation or compatibility layer or tool are prohibited).

3.3.1 NEW:
3.3.1 Applications may only use Documented APIs in the manner prescribed by Apple and must not use or call any private APIs.

3.3.2 OLD:
3.3.2 An Application may not itself install or launch other executable code by any means, including without limitation through the use of a plug-in architecture, calling other frameworks, other APIs or otherwise. Unless otherwise approved by Apple in writing, no interpreted code may be downloaded or used in an Application except for code that is interpreted and run by Apple’s Documented APIs and built-in interpreter(s). Notwithstanding the foregoing, with Apple’s prior written consent, an Application may use embedded interpreted code in a limited way if such use is solely for providing minor features or functionality that are consistent with the intended and advertised purpose of the Application.

3.3.2 NEW:
3.3.2 An Application may not download or install executable code. Interpreted code may only be used in an Application if all scripts, code and interpreters are packaged in the Application and not downloaded. The only exception to the foregoing is scripts and code downloaded and run by Apple’s built-in WebKit framework.

3.3.9 OLD:
3.3.9 You and Your Applications may not collect, use, or disclose to any third party, user or device data without prior user consent, and then only under the following conditions:

- The collection, use or disclosure is necessary in order to provide a service or function that is directly relevant to the use of the Application. For example, without Apple’s prior written consent, You may not use third party analytics software in Your Application to collect and send device data to a third party for aggregation, processing, or analysis.

- The collection, use or disclosure is for the purpose of serving advertising to Your Application; is provided to an independent advertising service provider whose primary business is serving
mobile ads (for example, an advertising service provider owned by or affiliated with a developer or distributor of mobile devices, mobile operating systems or development environments other than Apple would not qualify as independent); and the disclosure is limited to UDID, user location data, and other data specifically designated by Apple as available for advertising purposes.

3.3.9 NEW:
3.3.9 You and Your Applications may not collect user or device data without prior user consent, and then only to provide a service or function that is directly relevant to the use of the Application, or to serve advertising. You may not use analytics software in Your Application to collect and send device data to a third party.

Release below:

The App Store? has revolutionized the way mobile applications are developed and distributed. With over 250,000 apps and 6.5 billion downloads, the App Store has become the world’s largest mobile application platform and App Store developers have earned over one billion dollars from the sales of their apps.

We are continually trying to make the App Store even better. We have listened to our developers and taken much of their feedback to heart. Based on their input, today we are making some important changes to our iOS Developer Program license in sections 3.3.1, 3.3.2 and 3.3.9 to relax some restrictions we put in place earlier this year.

In particular, we are relaxing all restrictions on the development tools used to create iOS apps, as long as the resulting apps do not download any code. This should give developers the flexibility they want, while preserving the security we need.

In addition, for the first time we are publishing the App Store Review Guidelines to help developers understand how we review submitted apps. We hope it will make us more transparent and help our developers create even more successful apps for the App Store.

The App Store is perhaps the most important milestone in the history of mobile software. Working together with our developers, we will continue to surprise and delight our users with innovative mobile apps.

Financial terms of the agreement weren’t disclosed. The film company said they would supply the monthly-fee movie-rental company with five to 10 films a year, generally a few months after their release on DVD. The film industry has employed a strategy of delaying releases to online platforms in order to protect its traditional theatrical and DVD revenue streams.

Nu Image/Millennium is best known for action and thriller films including “The Expendables” and “Brooklyn’s Finest.”

Read the rest of this post on the original site »

On Friday NTP filed patent infringement lawsuits against Apple (AAPL), Google (GOOG), HTC, LG Electronics, Microsoft (MSFT) and Motorola (MOT) claiming–just as it did in the suit that nearly shut down RIM’s BlackBerry service–that their mobile wireless email devices infringe upon its technology. The suit asks that the companies be prevented from selling and operating such products and slapped with punitive damages (see document below).

“Use of NTP’s intellectual property without a license is just plain unfair to NTP and its licensees,” NTP co-founder Donald Stout said in a statement. “We took the necessary action to protect our intellectual property.”

And wring every last bit of value out of it. NTP’s key patents expire in 2012, so this really seems a last-ditch attempt to use them to win one last big payday.

And if it does, the big names in the smartphone industry could find themselves in the same unpleasant position RIM (RIMM) Chairman and co-Chief Executive Jim Balsillie found himself in back in 2006.

“It’s a lot of money for patents that will not survive, for sure, but that doesn’t do us any good if there’s a court that doesn’t wait,” Balsillie said after agreeing to a $612.5 million settlement with NTP. “No question, we took one for the team here. It wasn’t a good feeling to write this kind of check.”

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[Image credit: Bob MacNeil / WIPO Magazine]

Google (GOOG) made the announcement in understated form, by updating a blog post: “We are very pleased that the government has renewed our ICP license and we look forward to continuing to provide web search and local products to our users in China.”

The move follows Google’s concession last month, when it stopped automatically redirecting Chinese surfers to an uncensored, Hong Kong-based version of its search engine. Now instead of an automatic redirect, Google has added a button linking Google.cn users to the Hong Kong site.