Whenever I visit, my grandmother always takes some time to ask me for help with various electronic gadgets around her home in southern Arizona.  And, likewise, I’m always eager to help her by checking the house for problems that might be obvious to me but not-so-obvious to her.  This time she threw a curveball at me: she decided to buy herself a new computer and wanted me to help her get started with it.

She certainly didn’t act a moment too soon.  Her old computer was equipped with an aging Pentium III processor that could barely run Windows XP adequately.  Over a hundred “Windows Updates” later and with new software like Internet Explorer 7 and the latest versions of her virus-checking software and some “utilities” suite, that computer’s performance was absolutely abysmal.  To replace it, my grandmother chose an Acer machine that she found at the local Costco that appeared to have impressive hardware specs, especially considering its price.  For $569, Costco sold her a computer with a dual-core AMD 64-bit processor clocked at 2.3 GHz, 2 GB of RAM, a fairly generous hard disk, and even threw in a 19″ widescreen flat panel monitor.  Not bad.

I think we both assumed that “help her get started” meant that I would assemble the new computer for her, configure it for internet and email access, transfer some files from her old computer, and then spend some time patiently answering her questions about how to use it to accomplish certain tasks.

Before you start laughing, understand that we were both sort of naïve.  The last three computers that I’ve purchased for my own personal use have been Apple Macs.  Macs aren’t cheap, but they ship pre-loaded with tons of high quality “full version” software like iPhoto, iDVD, iChat, and iCal that makes them ready-to-use right out of the box.  I’ve also had a two company notebook PCs issued to me by my last two jobs, but both of those were also extensively configured for me by an IT professional before I ever got to touch them.  When it comes to opening a new computer, I’m spoiled rotten.  And, as for my grandmother, she hasn’t purchased a new computer since sometime shortly after the birth of Christ.  The Compaq Pentium III that we replaced today was positively ancient.

So, even though I keep very up-to-date with respect to Windows news, and I even dual-boot Windows Vista Ultimate on my MacBook in addition to a desktop, nothing could have prepared me for what I faced when I booted up my grandmother’s new Acer computer for the first time.

The computer ran like molasses.  Mouse-clicks took whole seconds to register.  The Windows desktop was a mess of icons for “Trial”-this and “Demo”-that.  A “McAfee 30-day virus protection BUY NOW!” window popped up at twice during the first few minutes the computer was powered on.  The system tray was filled with littered with the icons of a backup application, a trial version Office 2007, and something called “Acer GameZone,” each with its own respective “bubble” begging me to click it and learn about its offer.  The top of the screen was occupied by an always-on-top “Acer Empower” windowpane application that could not be hidden or quit without accessing the Windows Task Manager.  Internet Explorer also had at least two non-standard toolbars, including Yahoo’s annoying one that simply duplicates the functionality of IE7’s built-in search bar.

My grandmother’s brand new computer was truly loaded to the brim with crapware.

I can’t say that it completely surprised me.  Apple CEO Steve Jobs has often made comments about how, in contrast to many PCs that ship with tons of bundled software that is either of poor quality or that the hardware vendor was simply paid to include, new Macs ship only with “software you’ll actually use,” like the iLife suite and other first-party applications like iTunes and iChat.  And I’ve read reports about how some vendors like Sony actually charge extra fees for computers that ship without crapware.  There’s no question in my mind that Acer was paid to include much, if not all, of this extra software with the computer.

In principle I don’t have a problem with this.  If vendors like Acer want to offer value-priced products like my grandmother’s $569 desktop and keep the price that low by agreeing to bundle third-party software that consumers might not otherwise be inclined to install on their own, they’re absolutely free to do that.  But I also feel that PC vendors should be required to disclose when they do this.  It might affect a consumer’s decision to purchase a computer if she learned that she needs to spend potentially hours uninstalling demos, trials, and redundant toolbars (in addition to re-installing the appropriate non-trialware like the full version of Microsoft Office) before she can actually use the computer productively.  I’m sorry, Acer, but there was absolutely no way I could leave my grandmother with that computer as it came right out of the box; it was simply unusable.

What happened to the days when unboxing a new computer was something to look forward to?  Back in my retail days I was a firm believer that a customer’s opinion of a product is based primarily on her very first experience with it.  I think that consumers should at least be told what they’re getting themselves into.  This is exactly the sort of thing that companies like Acer should care about.  We have a very mixed opinion of Acer right now.  On the one hand, the hardware seems very good for the price and, now that I’ve removed over a dozen applications from it, the software seems adequate too (for a Windows PC of course).  But our out-of-box experience was irreparably marred by what we saw when we first powered on that computer.  Maybe it’s time that some PC vendors learned from Apple’s strategies.  If you ship a computer “clean,” with no stickers to peel off and no crapware to remove, ready to work right out of the box, consumers will love it from the first moment they hold it.  We love that kind of an experience.  It makes us feel like we just purchased something wonderful, and when you keep offering it, we’ll keep coming back to you for it over and over again.

Monster Cable Products Inc., a maker of audio/visual cables, recently sent a cease and desist letter to a much smaller company called Blue Jeans Cables.  Monster claims that Blue Jeans’ products infringe several of Monster’s design patents.

I’m not going to bother with legal commentary or any further explanation on this one because, as it turns out, the president of Blue Jeans happens to be an attorney with over two decades of litigation experience.  Audioholics reports that he responded with a rather pointed letter.  Here are the last few paragraphs of it:

            I have seen Monster Cable take untenable IP positions in various different scenarios in the past, and am generally familiar with what seems to be Monster Cable’s modus operandi in these matters.  I therefore think that it is important that, before closing, I make you aware of a few points.

            After graduating from the University of Pennsylvania Law School in 1985, I spent nineteen years in litigation practice, with a focus upon federal litigation involving large damages and complex issues.  My first seven years were spent primarily on the defense side, where I developed an intense frustration with insurance carriers who would settle meritless claims for nuisance value when the better long-term view would have been to fight against vexatious litigation as a matter of principle.  In plaintiffs’ practice, likewise, I was always a strong advocate of standing upon principle and taking cases all the way to judgment, even when substantial offers of settlement were on the table.  I am “uncompromising” in the most literal sense of the word.  If Monster Cable proceeds with litigation against me I will pursue the same merits-driven approach; I do not compromise with bullies and I would rather spend fifty thousand dollars on defense than give you a dollar of unmerited settlement funds.  As for signing a licensing agreement for intellectual property which I have not infringed: that will not happen, under any circumstances, whether it makes economic sense or not.

            I say this because my observation has been that Monster Cable typically operates in a hit-and-run fashion.  Your client threatens litigation, expecting the victim to panic and plead for mercy; and what follows is a quickie negotiation session that ends with payment and a licensing agreement.  Your client then uses this collection of licensing agreements to convince others under similar threat to accede to its demands.  Let me be clear about this: there are only two ways for you to get anything out of me.  You will either need to (1) convince me that I have infringed, or (2) obtain a final judgment to that effect from a court of competent jurisdiction.  It may be that my inability to see the pragmatic value of settling frivolous claims is a deep character flaw, and I am sure a few of the insurance carriers for whom I have done work have seen it that way; but it is how I have done business for the last quarter-century and you are not going to change my mind.  If you sue me, the case will go to judgment, and I will hold the court’s attention upon the merits of your claims–or, to speak more precisely, the absence of merit from your claims–from start to finish.  Not only am I unintimidated by litigation; I sometimes rather miss it.

          I will also point out to you that if you do choose to undertake litigation, your “upside” is tremendously limited.  If you somehow managed, despite the formidable obstacles in your way, to obtain a finding of infringement, and if you were successful at recovering a large licensing fee–say, ten cents per connector–as the measure of damages, your recovery to date would not reach four figures.  On the downside, I will advance defenses which, if successful, will substantially undermine your future efforts to use these patents and marks to threaten others with these types of actions; as you are of course aware, it is easier today for your competitors to use collateral estoppel offensively than it ever has been before.  Also, there is little doubt that making baseless claims of trade dress infringement and design patent infringement is an improper business tactic, which can give rise to unfair competition claims, and for a company of Monster’s size, potential antitrust violations with treble damages and attorneys’ fees.

            I look forward to receiving the information requested and will review it promptly as soon as it is received.

                                                            Sincerely,

                                                            Kurt Denke

Wonderful.  Absolutely wonderful.

My goal here is to create the blog that I always wished existed for my own use. The theme is “technology and Internet law,” and the wording of that phrase is important.  I believe that technology will be driving many of the most  important legal questions to come in the near future, and so this will be, first and foremost, a blog about technology law and internet law.  Simple enough. I intend to present a summary, updated at least weekly, of the news relevant to the field, with commentary where possible.

But I can’t draw the line there and stop, because in the practice of law it isn’t enough to simply stay abreast of the law while ignoring the subject matter itself.  This is especially true where the subject matter is something as dynamic and complex as technology.  A good number of recent cases have been decided or at least colored by low-level misunderstandings of the technologies involved. Even when such cases still result in holdings that are just, they are unacceptable because they set precedents that can become dangerous in the future. To promote good public policy in this field and competently serve high technology clients, we as legal practitioners must remain lucid and competent in this area.  Ergo, this will also be a blog about technology.  Hard, cold, silicon and code technology. This includes current technology that poses potential legal questions as well as technology that is likely to arrive in the near future. Not so simple. But that’s our business: connecting strange new alien-looking concepts with old-fashioned traditional jurisprudence in ways that are meaningful for clients and judges alike…and no one can do that without a firm grip the industry and its trends.

Of course, at the end of the day, this is still only a blog. That means I’m likely to occasionally deviate from the themes above and post about something only tangentially relevant that came up in a conversation with a colleague, law professor, or friend. But that’s also why I think a blog like this can be so interesting. You, as the reader, are free to comment on any topic you like. Start a conversation. Or, better yet, you can write your own post on your own blog and track back, providing the other readers with an opposing or concurring viewpoint.

Hello, world.