Last year, the working group asked for such an extension, but the Advisory Committee could not come to any consensus on whether to grant it. W3C director and inventor of the Web Tim Berners-Lee last week voiced his support for the EME plan, but the future of EME and the working group’s efforts are currently in limbo. Many of the arguments being made today mirror those made in 2013 when the working group first set about developing EME. And in light of this pending decision, we’re resurfacing the op-ed below (from May 2013) that outlines the supporting view.
Given the growth of efficient infringement, Google can operate in an open innovation way, applying open source principles to patented technologies from outside of the company as well as from those inside the company and partners… If it were not for efficient infringement it would be impossible for one company to be involved in as many different areas of endeavor as Google/Alphabet have attempted. The only feasible way for them to hunt for the next revenue stream seems to be to scatter-shot innovation by going in numerous different directions without any real focus. Of course, that requires them to ignore the rights of others and pretend we live in an open source world without any patent rights. Ironically, it is this disparate and uncoordinated approach to innovating that is also preventing Google from developing any kind of mastery outside of their core search competency and revenue generating model.
In Nghiem v Dick’s Sporting Goods, Inc., No. 16-00097 (C.D. Cal. July 5, 2016), the Central District of California held browsewrap terms to be unenforceable because the hyperlink to the terms was “sandwiched” between two links near the bottom of the third column of links in a website footer. Website developers – and their lawyers – should take note of this case, part of an emerging trend of judicial scrutiny over how browsewrap terms are presented. Courts have, in many instances, refused to enforce browsewraps due to a finding of a lack of user notice and assent. In this case, the most recent example of a court’s specific analysis of website design, a court suggests that what has become a fairly standard approach to browsewrap presentment fails to achieve the intended purpose.
The amount of damages, if the Navy loses, could go up substantially. Bitmanagement also noted that, in addition to licensing fees, it is seeking pre- and post-judgement interest, punitive damages, legal costs, attorney fees, and statutory damages that could amount to $150,000 per infringement.
According to the lawsuit (PDF) filed in the US Court of Federal Claims: