Published: Wed, 28 Sep 2016 21:07:07 -0400Copyright: Groklaw (c) Copyright 2003-2013 Pamela Jones.
Tue, 20 Aug 2013 02:40:00 -0400The owner of Lavabit tells us that he's stopped using email and if we knew what he knew, we'd stop too.
There is no way to do Groklaw without email. Therein lies the conundrum.
What to do?
Thu, 15 Aug 2013 13:34:00 -0400There will be a hearing in Apple v. Samsung I in Judge Lucy Koh's courtroom, Courtroom 8 on the 4th floor, on August 21 at 2:00 PM, so if any of you stalwarts can attend, that would be fabulous. You don't even have to wake up early.
What's it about? Didn't they just have a case management hearing in April? Why yes. Yes, they did, but there have been "progress and changes" since, according to the parties' Joint Case Management Statement [PDF], which fills us in on the details. Both parties would like some changes since the last case management hearing. Here's the last joint case management statement, back in April. And the judge's order on April 30 was to go forward immediately with the damages trial, unless certain things happened in the USPTO reexaminations of Apple's patents at issue. Some of those things have almost happened, and there are other quirks, so some changes are being requested.
The real core issue is Samsung's '381 motion, asking for a new trial on Apple's '381 patent based on newly discovered evidence or for entry of judgment on liability. Apple Opposes with a capital O. It now wants another chance to file a sur-reply [PDF], which Samsung opposes [PDF], claiming that "Apple identifies no 'new' arguments Samsung raised in its reply that were not responsive to arguments in Apple's opposition." The parties have been told that this motion wasn't on the calendar yet, but that they should be prepared to argue it on August 21. There is also the fact that the USPTO has found all relevant claims in the '915 patent invalid in a final office action. There can be more to come on that, but how does it impact the damages trial is the question?
And that is why we really should be there to hear it, if any of you can arrange your affairs to get there and be our eyes and ears. Samsung is telling the court that "Apple is attempting to 'sandbag' Samsung and obtain an unfair tactical advantage" by various proposals on how to go forward and by refusing to seriously meet and confer with Samsung. For example, Apple wants the judge to restrict the parties to the same exhibits used at the first trial. But that's not really fair in Samsung's eyes, because since that first trial, Apple has said things to the USPTO that conflict with what they said about the '381 and '915 patents at that trial:
Samsung does not believe the Court should limit the parties to the same exhibits disclosed prior to the first trial. For example, Apple has made numerous admissions to the USPTO subsequent to the first trial that directly contradict its arguments concerning the scope of the '381 and '915 patents. Apple should not be permitted to tell the Patent Office one thing and the new jury another. Samsung should be able to put this new evidence before the jury. Doing so would raise no issues concerning inconsistent appellate records because liability issues are not being retried and this damages trial will have its own separate record. Rather, the trial should be held based on an evidentiary record as it exists at the time of the new trial.If you can go, email me please and I'll tell you more.
[Update: We still need a volunteer.]
Tue, 13 Aug 2013 11:25:00 -0400Judge James L. Robart has now ruled [PDF, 38 pages] on Microsoft and Motorola's summary judgment motions, granting in part and denying in part.
He has ruled that seeking an injunction over a FRAND patent can be proper and is not necessarily a breach of the FRAND commitment:
Additionally, as explained above, material issues of fact exist regarding whether the October offer letters violated the duty of good faith. In addition to the rate contained in the offer letters, the jury will consider language of the letters, the circumstances surrounding the letters, the industry custom and practice, and Motorola's intent in sending the letters. Motorola has presented evidence that the letters were sent in good faith, and the jury will make the final determination....So it's up to the jury. He has, therefore, denied Microsoft's motion asking him to rule that Motorola violated its duty of good faith, because, he says, "there are numerous disputed issues of material fact precluding summary judgment on Microsoft's claim that Motorola violated its good faith duty." So it has to go to a jury. What does it mean? It means that the Microsoft/Apple attempt to get courts to rule that FRAND patent owners can't ever seek injunctions has failed. This court was Microsoft's best chance to win on that, and it lost.
As discussed above, in certain circumstances seeking injunctive relief may constitute a breach of the RAND commitment, whereas in other circumstances such conduct may be proper. The timing of when a party seeks injunctive relief in a separate forum relative to a pending action is germane to whether that party acted in bad faith in seeking such relief. In other words, it may very well be the case that seeking injunctive relief absent a pending lawsuit is good faith, whereas seeking the same relief during the pendency of litigation over a RAND rate is bad faith.
Mon, 12 Aug 2013 18:49:37 -0400Kevin Poulsen at Wired reports that the first 104 pages of Aaron Swartz's Secret Service files are available now, with a lot more to come, as a result of court ordered release. There are apparently 14,500 more pages to come.
Look at page 97. It's redacted so the identity of the woman is kept confidential, but it appears from the notation that a woman was in contact with authorities and informing them of conversations between her and Swartz.
Fri, 09 Aug 2013 15:38:00 -0400Today was the day Apple's appeal of Judge Lucy Koh's refusal to issue an injunction against Samsung was scheduled at the US Court of Appeals for the Federal Circuit in Washington, DC. And Groklaw had two volunteers there. The first report is in, and we expect Webster to send in his report next. Groklaw's RFD has the framework of how it went, but he confesses he couldn't predict the outcome.
Fri, 09 Aug 2013 07:09:00 -0400Things are getting interesting in Seattle in the FRAND case between Microsoft and Motorola. At the hearing the other day, our reporters mentioned that the judge had asked for cases to support Motorola's position that the time frame to consider Motorola's good faith in making its initial offer was back when it happened: Judge asks when duty of good faith bargaining begins and ends. Motorola says it is ongoing. But each breach complaint is pinned to a specific date -- not tied to the progress of the litigations. Mentions FTC order re Google acquisition of Motorola. FTC did not say that *prior* injunctive relief requests had to be dropped. And our second report added this:The German action was filed July 2011, MS didn't say they would accept a RAND offer until Sept 2011, and as such breach can't be a moving target. MS is stuck with the facts at the time of the complaint. Robart seemed skeptical of this, "Do you have authority for that?" answer about getting back with more briefing "I think you're wrong, but I'll be happy to read your brief." Sullivan says they have an ongoing duty, but a new breach action would be required, and the litigation in this case can't be included in this current breach action. So this is about the German action, which Microsoft claims caused it financial damages it would like to recoup, and I'll tell you more about that, because Microsoft is very upset about it all. Motorola has followed up [PDF] with two cases, and Microsoft has provided an excerpt [PDF] from the Daubert hearing that we didn't attend the day before, so that's nice to have. On Microsoft's side, it naturally immediately filed the USTR's letter [PDF] blocking the injunction against Apple by Samsung, although its cover letter is misleading as to what the USTR said. You knew they would do that. And they are in quite a tizzy [PDF] over the fact that Motorola continues to proceed in the German case, where it already got an injunction against Microsoft, which this Seattle judge purports to have the authority to block. However, Microsoft had already made a financial offer of royalties to Motorola in that case, and Motorola, to Microsoft's horror, accepted them. The rate is higher than what this Seattle judge set, so Microsoft has smoke coming out of its ears about how unfair it is that Motorola accepted its original offer. So Microsoft is asking [PDF] the court to "to renew and expand its anti-suit injunction to curtail Motorola's ongoing efforts in Germany to undercut the jurisdiction of this Court and to attempt to procure inconsistent rulings." As for the judge, he's maybe starting to realize that some of his assumptions about FRAND requirements conflict with what the experts are now telling him. He expresses a measure of confusion about it in an order [PDF] on what the experts for both sides can tell the jury. Here's what he won't allow Motorola's experts to tell them: that being willing to negotiate is sufficient to meet a FRAND obligation. That contradicts what this judge has already ruled in this crazy case, so he doesn't like that, I suppose. The "reason" they can't say that to the jury is, he says, because he gets to decide what is or isn't a fulfillment of a RAND obligation, in that he's Da Law on Microsoft's obligations under Washington state law which he believes the world must go along with, Germany included. Experts can't opine on legal conclusions. However, Motorola has now informed him via this route that he's been getting some things seriously wrong on what FRAND obligations are and what good faith requires. Perhaps it will influence him. He says that the Motorola experts can input how the jury instructions read. I wouldn't put much faith in that if I were Motorola, and I gather they don't. This German prong is getting interesting, I must say.[...]
Wed, 07 Aug 2013 17:28:00 -0400The Federal Circuit has just ruled in Apple's appeal of a final ruling of the ITC, which had ruled in Motorola's favor, overturning the ITC in part and remanding the case:
Apple appeals from the final decision of the International Trade Commission (ITC) that the asserted claims of U.S. Patent No. 7,663,607 ('607 patent) are invalid and that Motorola does not infringe the asserted claims of U.S. Patent No. 7,812,828 ('828 patent). Apple challenges the ITC's claim construction and its determinations of obviousness, anticipation, and noninfringement. For the following reasons, we affirm-in-part, reverse-in-part, and vacate-in-part the ITC's decision and remand for further proceedings.So the ugly dance continues. Apple started the show in this particular tent of the overall smartphone patent wars circus, suing Motorola at the ITC for infringement of various claims of Apple's '607 and '828 patents, which are about touchscreens and multi-touch. The ITC found that Motorola didn't do what the claims cover, and Apple appealed. As you know, the Federal Circuit never saw a patent it didn't love, or at least rarely do they, and in their opinion, the ITC didn't correctly throw out certain prior art or come up with the correct construction of another patent, blah blah, and under the new Federal Circuit definitions and guidance, Motorola might infringe, so back it has to go to the ITC to reconsider the Federal Circuit's way:
We remand so the ITC can consider that evidence in conjunc- tion with the evidence of secondary considerations and determine in the first instance whether claim 10 would have been obvious to one of skill in the art at the time of the invention....So back it goes. If you want to know what is going wrong in patent law, just read this ruling. Seriously.
We thus vacate the ITC's decision that Motorola does not infringe the '828 patent claims and remand the case to allow the ITC to consider in the first instance whether the accused products infringe under the correct construction of "mathematically fitting an ellipse."
Tue, 06 Aug 2013 15:21:00 -0400Samsung had already appealed [PDF] the portion of the ITC Opinion that denied it relief against Apple regarding the mainly non-FRAND patents the ITC ruled Apple did not infringe, and in connection with that appeal, we find the complete public version of the ITC Opinion [PDF] that the President just overruled attached as an exhibit. It's long, 162 pages because there is an appendix bundled in that same PDF, but I want to show you a few excerpts from the opinion that I hope will demonstrate to you, as they do me, that Apple's pardon was not based on Apple being the good guy in this picture. The ITC found otherwise on the facts in the record. In fact, the ITC specifically states in the opinion that Apple failed to prove that Samsung had violated any FRAND obligation.
The pardon, therefore, couldn't have been due to concern about patent hold-up, as was stated [PDF], since the ITC specifically found that Samsung had negotiated with Apple in good faith, had already licensed the '348 patent to over 30 companies, and that it was, in fact, Apple that illustrated the danger of reverse hold-up. Further, the opinion stated, Apple not only failed to prove that Samsung violated any FRAND obligation, it failed to establish even what they are. Further, Apple conceded in its ITC briefing that FRAND patent holders are not barred from seeking injunctions, and in fact since Apple argued to the ITC that the '348 patent was not really essential, this would mean that Samsung had no FRAND obligations, due to the wording of the ETSI terms.
So, it was a bit like the papal special dispensations of history, where the law said X, but you are let off the hook from having to keep it. That makes Apple's reported public response particularly offensive, when it said, "Samsung was wrong to abuse the patent system in this way." Samsung didn't abuse the patent system. It was, as you will see, exactly the opposite, according to the ITC Opinion. And while the President can do whatever he wishes regarding public policy, the ITC followed the statute, since it has no policy powers. In short, one unavoidably must conclude that if Samsung had been the US company and Apple the Korean one, there would have been no pardon. That's the bottom line, I'm afraid. As Jamie Love tweeted, "What Froman and USTR will now have to explain is why India and other countries can't also consider public interest in patent cases." As I'll show you, one of the things the ITC considered was public comments warning that changing the terms for FRAND patent owners would make sweeping changes to trade laws, and Korea has already registered its concerns. I'm all for reforming the patent system, as you know, but if you want to reform it, how about making it *more* fair, not less? Playing favorites based on country of origin doesn't aim for that noble goal. It's indisputable that this has harmed Samsung, and since the ITC, which examined the facts in detail, found it was the innocent party in this picture, what can be the justification for Apple's comment?
Sat, 03 Aug 2013 17:39:29 -0400There aren't as many amicus briefs in this second Viacom appeal as there were in the first, less than half, but there are six die-hards supporting Viacom's second appeal who have just filed their amicus briefs in Viacom v. YouTube-Google. They don't understand the Internet. They hate the DMCA's Safe Harbor provision, and they have learned absolutely nothing from history or from the rulings in this case so far. For example, here's the Copyright Alliance cynically predicting the end of the world if the appeals court doesn't overturn the district court judge's ruling for YouTube: If the court upholds this decision, the burden of ensuring a safe and legal Internet ecosystem will shift almost exclusively onto the shoulders of authors, practically absolving other stakeholders from being in any way responsible for the activities that occur on their websites. That is, I'm sorry to say, not true. There is no shifting *on* to the shoulders of authors, because the Safe Harbor provision in the DMCA *already* puts responsibility on authors to identify their own works if they think they are being infringed. That's what cease and desist letters are for. And after you send one, the entity you sent it to has responsibilities indeed, a responsibility to act. The only shifting in this picture is folks like the Copyright Alliance trying to shift that burden of identifying infringement onto Google instead. Because Google has lots of money, right? They're smart, right? Why can't they have to come up with something that won't cost authors anything or make them lift a finger to protect their own works? This group has learned nothing at all about the Internet. All they want is that they want it to stop being the way it is. The Internet is allegedly killing them. The DMCA is giving YouTube a free ride, to hear them tell it, and the lower court judge, they argue, misinterpreted it. Back in the '80s, it was Sony allegedly destroying copyright with their wicked anti-copyright VCRs that let home users video films and tv shows. Now it's the Internet and Google and YouTube allegedly stealing money out of the mouths of starving artists. The arguments are the same. But do they suffer from amnesia? One amicus brief states clearly that the majority of money Hollywood makes from movies is from sales of things like DVDs after the theater release. The very thing they told the court back in the days of the Sony Betamax case would destroy them turned out to be what kept them in business. They lacked vision back then, and they still do. But can't they compare and notice how wrong they were back then and extrapolate? It's actually worse. It's greed. They want to make the Internet the new goldmine, as you can see in this telling quote from the amicus brief [PDF] by the American Federation of Musicians et al: The motion picture and television industry's financial models and well-being, and that of the employees represented by the Guilds and Unions, heavily rely on "downstream" revenue, or revenue from the exploitation of its products subsequent to the theatrical release or first television run.5This was never truer than it is today - 75% of a typical motion picture's revenues derive from exploitation after the initial theatrical release, as do more than 50% of a television program's revenues after the initial television run. Internet exhibition and distribution, in particular, is one area of potential downstream revenue that is continuing to develop, evolve and expand as technology advances. They want their business model to stay the same and just squeeze the Internet into it until it screams and dies, morphed into a money machine for them, while you and I can do without the real Internet, because it's too free-wheeling for their business model. What do they care about technical progress? This is about money, honey. If[...]
Wed, 31 Jul 2013 22:24:00 -0400There was a hearing today in US District Court Seattle before the Hon. James L. Robart, the presiding judge in Microsoft v. Motorola. We had two volunteers there, and I have our first report for you.
This was the hearing on their RAND dispute building up to the second part of the trial in this litigation which is set to begin on August 26th, and, as is typical before a trial, both sides brought motions for summary judgment or partial summary judgment. There was a trial already, part one, with the judge only, no jury, and he set a RAND rate Microsoft should pay to Motorola, a very low rate. But there is a second trial coming up in August, this time with a jury, on whether or not Motorola breached its RAND obligations, which is what Microsoft claims, and if so, whether Microsoft should receive damages and attorneys fees. Motorola filed a motion for partial summary judgment [PDF] on those issues. Here's Microsoft's opposition [PDF].
Microsoft also filed its motion [PDF] asking for partial summary judgment on breach of contract and summary judgment on Motorola's 3rd, 4th, 5th, 7th, 8th and 9th affirmative defenses and its second counterclaim. You can read about the affirmative defenses and counterclaim beginning on page 21. And this is Motorola's response in opposition to Microsoft's motion.
That's the long version of what was the subject matter at the hearing, or the starting point. But here's the simple overview. Microsoft is claiming Motorola asked for too high a royalty in its opening offer of its RAND patents and that seeking an injunction for a RAND patent is a breach of contract; and Motorola claims Microsoft sucker punched them by asking for an offer and when it got one, immediately suing instead of negotiating an agreed-upon price. The judge also asked the parties to brief a separate question on what are the proper responsibilities with respect to RAND patents. What do "good faith" and "fair dealing" mean in that context? Here's where you can find both sides' briefs as text, Microsoft's and Motorola's [PDFs], and many of the points in those briefs were touched on in the hearing today.
Tue, 30 Jul 2013 12:26:00 -0400Harold Abelson report [PDF] to MIT about his investigation into the Aaron Swartz affair is now publicly available on MIT's website, along with a letter [PDF] from the President of MIT, L. Rafael Reif. There's a MD5 fingerprint.
It's dated July 26, and the review panel is listed as being made up of Abelson, Peter A. Diamond, Andrew Grosso, and Douglas W. Pfeiffer (support).
It's not a whitewash. It clearly sets out that MIT could have done more to achieve a different outcome had it cared about Aaron more and acted more harmoniously with traditional MIT culture:
If the Review Panel is forced to highlight just one issue for reflection, we would choose to look to the MIT administration's maintenance of a "neutral" hands-off attitude that regarded the prosecution as a legal dispute to which it was not a party. This attitude was complemented by the MIT community's apparent lack of attention to the ruinous collision of hacker ethics, open-source ideals, questionable laws, and aggressive prosecutions that was playing out in its midst. As a case study, this is a textbook example of the very controversies where the world seeks MIT's insight and leadership.Not everyone reading the report will agree that MIT "didn't do anything wrong" as the report itself is critical of MIT's stance in certain respects. However, it does say that there is no one thing that would have for sure changed the outcome:
A friend of Aaron Swartz stressed in one of our interviews that MIT will continue to be at the cutting edge in information technology and, in today's world, challenges like those presented in Aaron Swartz's case will arise again and again. With that realization, "Neutrality on these cases is an incoherent stance. It's not the right choice for a tough leader or a moral leader." In closing, our review can suggest this lesson: MIT is respected for world-class work in information technology, for promoting open access to online information, and for dealing wisely with the risks of computer abuse. The world looks to MIT to be at the forefront of these areas. Looking back on the Aaron Swartz case, the world didn't see leadership. As one person involved in the decisions put it: "MIT didn't do anything wrong; but we didn't do ourselves proud."
It has not been the Panel's charge for this review to make judgments, rather only to learn and help others learn. In doing so, let us all recognize that, by responding as we did, MIT missed an opportunity to demonstrate the leadership that we pride ourselves on. Not meeting, accepting, and embracing the responsibility of leadership can bring disappointment. In the world at large, disappointment can easily progress to disillusionment and even outrage, as the Aaron Swartz tragedy has demonstrated with terrible clarity.
In concluding this review, we recognize the desire for a simple take-away, a conclusion that "if MIT had only done this rather than that, things would have turned out OK." We can't offer one. There were too many choices, too many might-have-beens, too great an emotional shock, and a public response that has been supercharged by the power of the Internet, the same power that Aaron Swartz epitomized and that he helped to create. Even today, with the benefit of hindsight, we have not found a silver bullet with which MIT could have simply prevented the tragedy.Here's one. Do something about the Computer Fraud and Abuse Act. There's the silver bullet.
Mon, 29 Jul 2013 09:12:00 -0400Free Software Foundation Europe has just announced it has written a letter to the European Commission, objecting to FairSearch's claim that free distribution of Android software by Google is "predatory pricing":
The so-called "FairSearch" coalition is essentially asking the European Commission to favour a restrictive business model over a liberal one. This is exactly the opposite of what competition regulators should do in order to achieve a fair and open market.They tell the Commission that they are writing to "explain how the distribution of Free Software, whether gratis or for a fee, promotes competition, rather than damaging it." For example, it's not true that Google compels Android-based phones to exclusively use its own app store, and by releasing the code for free, Google is actually enabling others to easily compete with Google:
"Free Software is not about price, it's about liberty, a guarantee of competition and vendor independence. Asking to cripple Free Software in order to allow proprietary vendors to sell their locked-down systems is just absurd" says Carlo Piana, FSFE's General Counsel. "The most substantial threat to competition in the mobile space today are software patents, and we have repeatedly urged antitrust authorities to address this problem," he adds.
FSFE asks the European Commission to dismiss the "FairSearch" coalition's unfounded claims regarding predatory pricing, and not make them part of whatever steps it decides to take in response to the group's filing.
Google's competitive advantage is essentially ephemeral: the only way to stay ahead of the competition in Free Software is to provide better products or services, and to win users' trust. Barriers to entry for competitors are extremely low. An example is that the platform allows installing alternative marketplace (or "app stores"). The Free Software Foundations promote a "Free Your Android" campaign where they solicit adoption of an alternative marketplace called F-Droid where only Free Software applications are provided.The letter points out that most of the innovation going on in mobiles is in Free Software:
In a powerful illustration of how the Free Software model enables competition, we note that all recent additions to the list of mobile operating systems are largely Free Software. Though Android devices currently make up around 70% of mobile phones and tablets sold, several other Free Software mobile operating systems based on the Linux kernel are setting out to to compete with Android. Examples include Firefox OS (backed by the Mozilla Foundation), Jolla (from the ashes of Maemo, a Nokia project terminated after the company's strategic alignment with Microsoft), Tizen (backed by Samsung, Intel and various telecom providers such as Vodafone and NTT Docomo), and UbuntuMobile (backed by Canonical).You can write your own letter to the EU Commission, whether you are a company, a FOSS project, or an individual. I hope you will. I know some of you have already, because you've been nice enough to let me know, and so I know some beautiful letters have already been sent. But numbers matter. Write to:
comp-greffe-antitrust at ec.europa.eu
Sun, 28 Jul 2013 10:17:00 -0400Samsung has just notified [PDF] the US District Court in Northern California that, according to another USPTO Final Office Action, Apple's '915 patent has been found invalid on reexamination. All 21 claims of the '915 patent bit the dust, as you can see in Exhibit A [PDF], the USPTO documents The issue is prior art and obviousness. So, the jury in Apple v. Samsung got another thing wrong, I see. Apple didn't invent gestures.
Here's what Samsung tells the court:
This Final Office Action by the USPTO is relevant because it rejects all claims of the '915 patent as being anticipated or obvious in view of U.S. Patent No. 7,724,242 to Hillis ("Hillis,"), Japanese Publ No. 2000-163031A to Nomura ("Nomura,"), and other prior art references. This final rejection includes claim 8, which is the only claim of the '915 patent at issue in this action. The jury found at trial that 21 of 24 accused Samsung products infringed claim 8 of the '915 Patent-specifically the Captivate, Continuum, Droid Charge, Epic 4G, Exhibit 4G, Fascinate, Galaxy Prevail, Galaxy S (i9000), Galaxy S 4G, Galaxy S II (AT&T), Galaxy S II (i9100), Galaxy S II (T-Mobile), Galaxy Tab, Galaxy Tab 10.1 (WiFi), Gem, Indulge, Infuse 4G, Mesmerize, Nexus S 4G, Transform, and Vibrant. The jury awarded damages as to all products found to infringe the '915 patent except the Galaxy S (i9000) and Galaxy S II (i9100). The new trial on damages scheduled to begin November 12, 2013 includes 12 products that the jury held to infringe claim 8 of the '915 Patent-specifically the Captivate, Continuum, Droid Charge, Epic 4G, Exhibit 4G, Galaxy Prevail, Galaxy Tab, Gem, Indulge, Infuse 4G, Nexus S 4G, and Transform. (See Dkt. No. 2271 at 26; Dkt. No. 2316 at 2.)Apple's fancy lawyers can contact the USPTO now and argue against this final office action by telling them the patent doesn't mean what they said it means at trial or whatever Apple tries next. But one thing is for sure: the judge was right to rule that Samsung wasn't intending to infringe. It genuinely, and now appropriately, believed Apple was bullying Samsung with some questionable patents. That's the best you can say for them now. Unfortunately, Samsung ran into a jury that didn't know how where up is and seemed to worship the ground Apple walked on. So they decided to "send a message", they said, and punish Samsung. For infringing some apparently invalid patents, as it now turns out. Actually, we at Groklaw told you these patents were ridiculous at the time, that patents on algorithms should not be allowed as patentable subject matter in the first place. That is the central problem in US patent law.
Sat, 27 Jul 2013 11:32:08 -0400Viacom can't seem to find a judge to agree with them that the DMCA Safe Harbor should be reinterpreted Viacom's way or that YouTube/Google, specifically, should lose its protection because of its conduct. Their war against Google's YouTube is into its 7th year, and Viacom still thinks that YouTube and parent Google should be held responsible for what users do on it. Specifically, it wants them to have the editorial burden of preventing copyright infringement from happening in the first place, not acting on it when notified of specific infringement by the copyright owner, and it wants it to have to pay for it all by itself.
So far, it hasn't worked out for Viacom, because that's exactly what the DMCA says shouldn't happen, so they're appealing a second YouTube victory on summary judgment, shopping for an outcome they'd like better than what they keep getting. It argues to the appeals court that the district court judge failed to properly follow the appeals court's directions after the first appeal.
So in their opening appeal brief [PDF], Viacom asks the U.S. Court of Appeals for the Second Circuit to send the case back once again to the district court for a trial, but this time with a different judge, once who might be more receptive to Viacom's interpretation of the DMCA:
Given the protracted nature of this litigation (the case is now well into its seventh year) and the evident firmness of the district court's erroneous views regarding the DMCA, this Court should exercise its discretion to remand the case to a different judge "to preserve the appearance of justice."Not that this implies any criticism of the judge, Viacom tells the court. No. Oh no.
You know Hollywood. They want what they want and they want it now. So rather than ask Congress to change the law, they are shopping for a judge who will do it for them the easy, cheap -- and I might add, improper -- way via a strained interpretation of the law's wording based on the Grokster case. But in reality, whether they realize it or not, what they *really* want is for the Internet never to have been born, or at least to be different, more controlled from above, like television and the movies, where they can control everything their way, and users just sit back and passively buy what they sell. And since they can't have that, they want Google to have to control users on the Internet on *their* dime instead of Viacom's, which under the law has the responsibility to identify copyright infringement and send take-down notices. Not so, Viacom argues, if, as in the Grokster case, YouTube was willfully blind.
Thu, 25 Jul 2013 13:25:00 -0400Google has now filed its Reply Brief [PDF] in the appeal in Oracle v. Google. This cross appeal is about alleged copyright infringement for copying by mistake 9 lines of rangeCheck code (out of millions of lines of code) and eight decompiled test files that never made it onto any Android device and were done by a contractor in violation of Google's instructions.
What's the big deal, you ask? Exactly. "Google's copying was de minimis-too insubstantial in relation to the "work as a whole" to be actionable," Google writes.
If you recall, Oracle in the brief Google is here replying to, said that there is no de minimis defense in the Ninth Circuit, only fair use. Oracle also admitted this was the first time it brought this up. It also argued that the materials copied were important.
Google says there is too a de minimis defense in the Ninth Circuit, and Oracle knows it. Oracle now claims the cases establishing that defense were "wrongly decided", but earlier in the litigation "Oracle actually proposed jury instructions embodying the de minimis-copying doctrine whose existence it now denies." That bars Oracle from making the opposite argument now in the appeal, Google states.
In short, Oracle is making a big fuss over trivialities. Normally, nobody sues over this kind of trivial copying. But since Oracle has, Google says it was supposed to demonstrate why such copying was *not* de minimis, which it has failed to do. Like, who could? It's stupidly teensy weensy stuff. Why Oracle can't see that it's making itself look petty and small is the only mystery.
Wed, 24 Jul 2013 15:40:00 -0400Here's today's announcement from the FTC: "FTC Finalizes Settlement in Google Motorola Mobility Case". And here's the Final Order [PDF], based on the settlement with Google, who admitted no fault and for good reasons, in my view, in that it wasn't at fault. I've long maintained that this is a manufactured complaint to smear and harass and hamper Google by competitors, the usual suspects. And the good news is, The FTC altered the settlement terms to try for more balance than the draft it published for comment back in January.
The ban on injunctions on the Motorola FRAND patents has been lifted, although there remain certain restrictions. What does it mean? It means, to me, that there have been reverberations from the ITC decision recently to grant an injunction against Apple for reverse patent hold up, rejecting its defense that Samsung was violating its FRAND obligations by asking for too much to license. That told the world that injunctions are available to FRAND patent owners. Second, I think it means that the Microsoft/Apple/FOSSpatents campaign to make the world believe it should be impossible for FRAND patent owners to seek injunctions is failing. The tide is turning. Third, this is an order based on a settlement agreement, so it doesn't apply necessarily to anyone else but Google's Motorola patents. But it should have an impact on litigation currently in progress.
Tue, 23 Jul 2013 14:05:30 -0400Apple is, of course, opposed to Samsung's motion for a new trial regarding Apple's '381 patent, and it has now filed its opposition [PDF] with the court. It's the public, redacted version. Samsung asked for the new trial based on what it says is newly discovered evidence, namely his motion is based on "newly discovered evidence"after "Samsung learned from PTO records made publicly available on June 12, 2013, that Apple had successfully advocated a new claim construction of the only asserted claim - Claim 19 - and significantly narrowed its scope in connection with reexamination proceedings before the PTO to avoid having this claim rejected ..."
Apple however says it has done no such thing. Or at least, it hasn't done so "unambiguously". Hmm. "...Apple's reexamination statements are completely consistent with the position Apple has taken throughout this case," Apple argues. Samsung's expert has mischaracterized what Apple said to the USPTO, it says:
Apple's statements merely made explicit what was already implicit in the patent-that a centering function alone without the recited instructions to translate "until the area beyond the edge of the electronic document is no longer displayed" cannot meet the requirements of claim 19.Even if this were newly discovered, it wouldn't change the outcome at trial. "The Van Dam Declaration ignores the unrebutted evidence at trial that Samsung's products practice all the limitations of claim 19, rather than merely 're-centering' documents." And the cherry on top is the argument that it's too late for Samsung to get a do-over. Samsung's motion is time-barred. You only get 28 days after judgment to ask for a new trial, even if there is newly discovered evidence, Apple writes.
Tue, 23 Jul 2013 08:55:00 -0400IBM has now filed its promised Motion and Memorandum for Partial Summary Judgment Based on the Novell Judgment [PDF] in SCO v. IBM.
I started to write IBM v. SCO, because that is what it really is now. For those who keep track, IBM had received an extension of time to file, until the 22nd, giving it an extra few days.
IBM points out that SCO doesn't own the copyrights it sued over, the pre-1996 UNIX code, Novell does, so SCO is in no position to complain about copyright anything. SCO has already claimed that it's talking about claims that now, after it lost the pre-1996 copyright claims, really have to do with post-1996 copyrights or contract issues. But you don't get to rewrite your complaint any time you think it would be handy, and SCO's complaint was all about pre-1996 code. Until now, the SCO attempt at a workaround.
We also find out what IBM meant when it said that it believed the Novell Judgment affected more claims than SCO believed it did. IBM says that the Novell victory also affects some of IBM's counterclaims, not just the two and a half SCO claims that remain in the case:
Contrary to SCO's suggestion, the Novell Judgment is not immaterial to IBM's counterclaims. It compels a judgment in IBM's favor on two of the counterclaims, and it resolves elements of other counterclaims against SCO.
Thu, 18 Jul 2013 16:16:00 -0400I've been thinking a lot about the latest complaint to the EU Commission by those persistent anti-Google complainers, FairSearch. Believe it or not, part of the complaint is that it's anticompetitive to distribute Android for free when proprietary companies have costs for development:
When its comes to the charges related to "predatory distribution of Android at below cost" Blaber is less understanding of FairSearch's stance. "That is a very difficult argument to make in a mobile industry where open source is quickly becoming the norm. ... Really it's only Microsoft that still has a model based on license fees," he said.Aha! Microsoft. So, it's about *Microsoft's* business model, not any other FairSearch member? Well, maybe Microsoft's little partner, Nokia, but that is the same thing, having trouble competing against Android, and complaining to regulators that it's not fair to distribute Android for free when others have proprietary products that they claim they have to charge for to recoup their investment. That makes this complaint yet another anti-Linux, anti-Open Source, anti-GPL attack from Microsoft, which has a long history of such behavior. It's an attack against the Open Source development model itself. Free distribution is the norm for Open Source. It's also, I believe, part of a coordinated smear campaign against Google. And while FairSearch claims it's not dominated by Microsoft, this complaint demonstrates otherwise.
I suggest writing to the EU Commission, to make sure they understand what is at issue. Here's the page that lists who to write to:
comp-greffe-antitrust at ec.europa.euI know I don't need to remind you that politeness counts. Also, do read all the instructions on that linked page. For example, they don't accept any emails larger than 8 MB. I could do it in a tweet, I suspect:
FairSearch attacks Open Source/GPL. #NotFair.I doubt the EU Commission realizes this is what is at stake, if it took me this long to figure it out, and I'm always trying to be on the alert. If the EU Commission gets this wrong, the result would be that it would discourage use of Open Source code, out of fear of being accused, if successful, of anticompetitive behavior for offering free code.
Incidentally, South Korea just acquitted Google of any antitrust behavior regarding search, after looking into it for two years, saying there are plenty of alternative search engines (here are 11 of them), and the EU Commission should not accept this new attack against Google as valid either. So far, it's just a complaint, and the Commission looks into any complaint filed, but it's not yet an official investigation, and it should never become one. I'll show you why I say that.
Wed, 17 Jul 2013 10:58:00 -0400Correction: I jumped the gun. This is the appeal of the N.D. Cal.'s decision not to award Apple an injunction against Samsung, in the case where the trial was held last year, not the one about Samsung's successful injunction against Apple at the ITC. Who can keep track of all the smartphone patent trials? I should. But I goofed. So here's the correct info.
Oral argument has been set [PDF] in this Apple appeal of Judge Lucy Koh's ruling that no injunction would be ordered against Samsung in the first Apple v. Samsung litigation. That's docket # 2013-1129 at the US Court of Appeals for the Federal Circuit. Argument on the appeal of this one issue will be on August 9 in Washington DC, at 10:00 A.M in Courtroom 203 before the US Court of Appeals for the Federal Circuit, Howard T. Markey National Courts Building, 717 Madison Place, N.W., Washington, D.C. Each side gets only 15 minutes to speak, so it will be quick. It's Quinn Emanuel's Kathleen Sullivan for Samsung and Wilmer Hale's William F. Lee for Apple. If there is any way any of you out there can attend and be our eyes and ears, that would be awesome.
Tue, 16 Jul 2013 01:10:46 -0400Microsoft, that devilish litigation machine, now wants to win by summary judgment in the Seattle RAND patent case against Motorola on the next question to be tried, whether Motorola violated a duty of good faith as to its RAND licensing commitments. Motorola, naturally, opposes [PDF]. It wants its day in court with a jury, not just this judge, who keeps beating Motorola up. At least in Seattle courtrooms, it seems Microsoft can do no wrong.
What Motorola tells the court is something I hope everyone will read in full, because it says that the reason Motorola sent Microsoft an offer to license its RAND patents is because Microsoft *asked it* to do so, pretending all was normal between them. Then when they sent their offer and the usual opening price, instead of discussing it, Microsoft immediately sued, claiming the price was too high.
In short, Microsoft sucker punched them. Motorola calls it reverse hold up, which is what Apple was just found guilty of against Samsung at the ITC for essentially the same type of moves:
Microsoft's conduct suggests that it was engaged in "reverse hold-up." As explained recently by the International Trade Commission in Samsung v. Apple, "In reverse patent hold-up, an implementer utilizes declared-essential technology without compensation to the patent owner under the guise that the patent owner's offers to license were not fair or reasonable. The patent owner is therefore forced to defend its rights through expensive litigation."The details are eye-opening. All of this, Motorola says, came about because it chose to use Google's Android instead of Microsoft's Windows for mobiles. There will be a hearing on this July 31, so if any of you are in the Seattle area and can attend, that would be awesome.
Mon, 15 Jul 2013 06:41:23 -0400
How Many Patents Must Be Read to Clear All Patents Rights on Software?
There is a popular theory about the ills of the patent system that there is nothing wrong with software patents. According to this theory, all the problems are due either to bad actors called trolls or to poor quality patents. Then, as the logic goes, the patent system may be fixed by curtailing the activities of bad actors and by improving the quality of the patents.
Is that so?
Sat, 13 Jul 2013 14:18:48 -0400I think you guys will want to see this extraordinarily interesting talk by Carl Hewitt on YouTube. He talks about the future of IP software -- future as in when computers start filing patent applications. "If there is no principled way to distinguish computation from human thinking" -- then what? Human thinking isn't patentable. And if the meaning is a mathematical denotation, and mathematics is also unpatentable, what happens when computers are filing thousands and thousands of patent applications on all the patentable IP in the universe?
A subtheme is that Mark Lemley, who thinks software patents are acceptable as long as we tweak the USPTO process to screen out claiming the function instead of the way to get to the goal, is suggesting a halfway measure, because the future for the US patent system is a patent quagmire, because of the future capabilities of computers to overwhelm the USPTO with patent applications, none of which should be patentable but which under the current regime would be.
Thu, 11 Jul 2013 22:43:46 -0400Orin Kerr now lists four amicus briefs filed in the Andrew "weev" Auernheimer case. He is one of the attorneys representing him in his appeal pro bono. We have one of the amicus briefs done as text here, the one by security researchers, and now let's look closely at a second amicus [PDF], this one filed by Peiter "Mudge" Zatko, C. "Space Rogue" Thomas, Dan Hirsch, Gabriella Coleman, and other prestigious professional security researchers in support of Auernheimer. This one is particularly valuable, in that it carefully explains how a server acts on the World Wide Web and points the finger of blame at AT&T, pointing out that it had the choice to make the page private, but it failed to do so, leaving it open and public to all comers. They even draw pictures, so there is no chance the court can miss the point of the tech lesson. And they ask the court to overturn his conviction, because otherwise the implications of private, ex post facto law-setting by private corporations is terrible to contemplate and may be unconstitutional: Mr. Auernheimer's conviction on charges of violating the Computer Fraud and Abuse Act, 10 U.S.C. §1030, implies that his actions are in some material way different than those of any web user, and that beyond this, his actions violated a clearly-delineated line of authorization as required by §1030(a)(2)(C). Neither of these statements is true. The data Mr. Auernheimer helped to access was intentionally made available by AT&T to the entire Internet, and access occurred through standard protocols that are used by every Web user. Since any determination that the data was somehow nonpublic was made by a private corporation in secret, with no external signal or possibility of notice whatsoever, such a determination amounts to a private law of which no reasonable Internet user could have notice. On this basis alone, Mr. Auernheimer's conviction must be overturned.... The United States asks this Court to endorse the use of the criminal justice system to cover up a private corporation's failures. AT&T published private consumer data in an inappropriate fashion. Rather than take responsibility for their act, they have asked the criminal justice system to punish the researcher who uncovered their mistake. If this tactic is allowed to flourish, it will allow corporations to choose to terminate any safety oversight of their actions, and instead rely on the criminal process to serve as a cover-up for bad acts. Corporations will have no incentive to treat consumer data with adequate care in the future, since no one but the corporations themselves will be aware of any possible danger. In essence, the precedent that the respondent seeks to create is one that will make the American taxpayer subsidize the irresponsibility and misfeasance of private corporations through the courts on a scale never before seen. With this case, this Court has an opportunity to state that it is not acceptable for private corporations to warp the criminal justice system to shield themselves from public scrutiny in their digital public accommodations, any more than it is acceptable in any physical accommodation. Mr. Auernheimer's "crime" was to discover that a public corporation was giving anyone access to private consumer information; he discovered this by, in essence, repeatedly adding 1 to a number. The Court should not condone the metaphorical shooting of a messenger who acted for the safe[...]
Thu, 11 Jul 2013 12:59:19 -0400A group of illustrious computer scientists, computer science professors, software developers, privacy researchers, professional and freelance computer security researchers, and academics have filed an amicus brief [PDF] in support of Andrew "weev" Auernheimer. They include Mozilla Foundation, Ed Felten, Matt Blaze, David L. Dill, Bruce Schneier, and Dan Kaminsky. Biographies are included in the filing for any who don't immediately recognize their names, at the very end as the attached Exhibit A.
What is their concern? Security research depends on being able to do exactly the sort of thing that Auernheimer was just sent to jail for:
Many Amici routinely scrutinize websites, software interfaces, electronic devices, and other computer systems for security and privacy shortcomings, and use information derived from such testing in their work. Researchers commonly test public, unsecured websites to discover how they collect, store, and use consumer information. These tests may include sending websites a series of similar information requests, changing a variable each time to see how the website will respond. As Defendant-Appellant Andrew Auernheimer did, researchers usually use software programs, or "scripts" to automate these changes and thereby quickly collect more data....Computer security research is vital too "helping protect security and privacy on the computer networks that are key for our nation and economy." If his conviction stands, what happens to this vital research?
Amici have diverse and deep technological expertise in computer security and privacy from both an academic and practical perspective. Their work - and that of numerous other researchers and security and privacy professionals - is critical to helping protect security and privacy on the computer networks that are key for our nation and economy.
This legitimate, highly valuable research commonly employs techniques that are essentially identical to what Defendant-Appellant did in this case. Most importantly, like Auernheimer, researchers cannot always conduct testing with the approval of a computer system's owner. Such independent research is of great value to academics, government regulators and the public even when - often especially when - conducted without permission and contrary to the website owner's subjective wishes.
Tue, 09 Jul 2013 17:47:00 -0400Samsung has just filed a motion for a new trial on liability in Apple v. Samsung with respect to Apple's '381 patent. That's the bounce back patent, which was used by Apple in the first trial in California, and the jury ruled that Samsung infringed that patent with 18 products. As you know, the two companies are currently in the pre-retrial motion stage leading up to a retrial on the question of damages only, scheduled to begin in November.
Meanwhile, the reexamination process continued at the USPTO, with Apple getting them to overrule their earlier final determination that claim 19 of the '381 patent, the claim at issue in this litigation, was not valid due to prior art. And here comes Samsung with the incredible news that it just learned on June 12th that during the most recent phase of the reexamination process at the USPTO, Apple narrowed its patent so much to get it to survive the process that Samsung's products no longer infringe (which Samsung never thought they did anyhow):
The eighteen products at issue in this motion are all products for which the jury found infringement of the '381 patent and awarded damages. The Court ordered a new trial on damages as to all of the products at issue in this motion except the Fascinate, Galaxy S 4G, Galaxy S II (AT&T), Galaxy Tab 10.1(WiFi), Mesmerize and Vibrant. Dkt. 2271. This motion is based on "newly discovered evidence" because Samsung learned from PTO records made publicly available on June 12, 2013, that Apple had successfully advocated a new claim construction of the only asserted claim - Claim 19 - and significantly narrowed its scope in connection with reexamination proceedings before the PTO to avoid having this claim rejected due to the Lira reference. Under this claim construction, the Captivate, Continuum, Droid Charge, Epic 4G, Exhibit 4G, Fascinate, Galaxy Prevail, Galaxy S 4G, Galaxy S II (AT&T), Galaxy Tab, Galaxy Tab 10.1 (WiFi), Gem, Indulge, Infuse 4G, Mesmerize, Nexus S 4G, Replenish and Vibrant cannot possibly infringe Claim 19 of the '381 patent.Wow. Why would Samsung have to find this in papers filed with the USPTO instead of from Apple just telling them? In any case, Samsung argues newly discovered evidence. The Lira patent is the prior art that caused the USPTO to reject claim 19 earlier.
Mon, 08 Jul 2013 12:51:28 -0400SCO has filed its response [PDF] to IBM's objections to SCO's Proposed Partial Judgment order [PDF], which SCO had improperly titled "Proposed Judgment Dismissing SCO's Claims Mooted by the Final Judgment in SCO v. Novell".
SCO says, OK, you can remove the word "moot" from the proposed order, despite stubbornly insisting it was correct wording: "Because the Novell judgment resolved the claims that SCO agrees can be dismissed, those claims no longer present a controversy and thus can be properly said to be mooted by the Novell judgment." In short, SCO doesn't know what "moot" means, but IBM taught them that the right terminology would be "decided on the merits, meaning SCO can't sue later on the same claims, and SCO says, fine, change the wording. IBM caught them in a trick, or just sloppy wording, and the parties move on. And OK, SCO agrees to change the wording about Project Monterey agreement being a joint venture, which it wasn't, and almost everything else IBM objected to SCO agrees to change. IBM is right, SCO agrees, that almost all of the claims in SCO's complaint are dead as a door nail now, because of Novell's victory over SCO regarding the ownership of copyrights, SCO concedes.
The following SCO claims remain ripe for adjudication by the Court: SCO's Unfair Competition claim (Count VI) concerning Project Monterey, SCO's Interference with Contract claim (Count VII), and SCO's claim for Interference with Business Relationships (Count IX).I doubt IBM wants that as part of the order, in that IBM is planning to contest that any of them survived the Novell judgment. That will be handled in the forthcoming IBM motion on this very topic, which SCO knows is the next step. In effect, SCO is asking for the judge to agree that these claims are still standing. SCO never quits with the tricks, but what does it mean? The SCO response reveals what SCO's plan is, as I'll show you.
Finally, SCO says it also attached a black-lined version of its proposed order showing the changes, but it is not, in fact, black-lined.
Sun, 07 Jul 2013 22:57:46 -0400I impulsively bought one of the $199 Acer C7 Chromebooks, specifically to find out if I could successfully put pure Linux on the
So when I went to Best Buy, for something else, I asked if they had any Chromebooks. They were sort of hidden away, on the the far end of a display of all the Microsoft laptops. There were only two models, one a Samsung and the other an Acer C7. I chose the Acer over the Samsung Chromebook because the Acer had both wireless and Ethernet, and with the Samsung, it only had wireless, so if I wanted to use Ethernet ever, I'd have to get a USB Ethernet adapter. And I like to have both. Plus I worried some donkey would accuse me of pushing Samsung products, since we've been covering the Apple v. Samsung patents wars.
Then, once I got my new Chromebook home, I realized it only had 16 GB of storage, which I hadn't noticed in the store. Like I say, it was an impulse buy. I didn't think that'd be enough room for a dual boot. But just as I was giving up, a friend told me about crouton. Oh, my! A chroot so you don't have to dual boot but can just switch back and forth between Chrome OS and KDE or whatever you like.
The short version of my happy tale is I did it, and it works. And if I can do it, likely so can you. It was fun. I'll show you what I did, and I have some resources in case you can think of an even better way.
Sat, 06 Jul 2013 08:07:00 -0400Florian Mueller of FOSSpatents has done an article about the Oracle reply brief in the appeal and cross appeal in Oracle v. Google that is so one-sided, I thought I should address it here, so you are not misled. Here's Oracle's reply brief [PDF; Text].
I've had to correct FOSSpatents before. For example, in this article in April of 2012, "Google's Unmerited Damage From Oracle v. Google -- The FOSSPatents Factor," I showed in detail that his predictions and analysis of the trial segment of this case were off-base, and unfair, and did not come true, as the jury and court rulings demonstrated clearly. I hope his hedge fund clients didn't lose their shirts relying on his analysis. For that matter, I hope they didn't make money from his flawed analysis either, now that I think about it. He calls himself an analyst. So does Rob Enderle. Enderle has stated that he takes money from clients, like Microsoft, and then he writes, independently he claims, articles that coincidentally would warm a client's heart. I would say, then, that Mueller is an analyst in that same limited sense.
Oracle is another client of Mueller's. Oracle hired him to "advise" the company, so I suppose we shouldn't be surprised that he generally mirrors the Oracle point of view in an endless stream of anti-Google articles. And if that is what you want, X marks the spot. Read whatever you enjoy.
But if what you want is an analysis that includes both sides in litigation, not to mention predictions that actually come true, I fear you will not find it there. So let's take a look at what he wrote about Oracle's brief, and I'll try to give you a better understanding of the issues in this appeal by adding some accurate information about Google's position.
Fri, 05 Jul 2013 11:02:00 -0400Oracle has filed its Reply [PDF] to Google's Appeal and Cross-Appeal Brief. Google's was in response to Oracle's opening appeal brief, so now the 3-section symphony of appellate briefs is complete. Next will come oral argument, and then a decision from the Federal Circuit Court of Appeals.
I haven't yet read it carefully, so we can do that together, and swing back by for my thoughts on it and a text version. But meanwhile, get a load of this from the table of contents:
I. THERE IS NO "DE MINIMIS" DEFENSE TO COPYRIGHT INFRINGEMENT................. 63It says there is no de minimis defense in the Ninth Circuit, only fair use. Oracle admits, in footnote 12, that it didn't argue this "throughout the proceedings below" but claims the appeals court can affirm the district court's ruling that the code in question was not de minimis "on any grounds that finds support in the record." So, a new argument raised for the first time in the appeal. That's the Boies Schiller style. Speaking of which, here's what Oracle wants:
On Oracle's appeal, this Court should reverse the district court's judgment and enter judgment on liability for Oracle. On Google's cross-appeal, this Court should affirm the district court's judgment.In short, Oracle wants everything.