June 2012

Apple Patent Ruling May Alter Tech Tactics

Judge Richard Posner’s ruling is a blow to the campaign by Apple and its rivals to use patent suits to block competitors' progress.

Judge Posner ruled that companies in such cases shouldn't be able to win court injunctions blocking sales of infringing products, a key tactic for plaintiffs trying to pressure defendants. But legal experts remain divided on whether the judge's 38-page ruling will have much impact on other disputes involving smartphone combatants. Judge Posner's ruling questioned whether the harm by patent infringement caused to a plaintiff in such a case justified the harm caused to the defendant—and the general public—from issuing an injunction that would prevent consumers from buying infringing products. "An injunction that imposes greater costs on the defendant than it confers benefits on the plaintiff reduces net social welfare," he wrote. The judge dismissed as "wild conjecture" the idea that a smaller player like Motorola could cause enough harm to Apple to justify an injunction, saying that Apple's lawyers had tried to turn the case into a "popularity contest" by comparing its products with Motorola's. Judge Posner stressed that monetary damages are a more appropriate remedy in such patent cases. But he criticized both companies' efforts to seek them, concluding they "had failed to make a responsible calculation" of damages.

Where to Place Your Call for Dividends With Telecom Stocks

With the Federal Reserve continuing to clamp down on interest rates, scavenging investors are starved for yield. Telecommunications companies, with their ripe dividends, are one likely place to look for sustenance.

One question for the really ravenous investor, though, is weather AT&T or Verizon will do a better job increasing its dividend in coming years? AT&T has steadily raised its dividend for 28 years and supplements this capital return with stock buybacks. But when it comes to the possibility of accelerated dividend increases, Verizon looks better-positioned than its rival. A larger-than-normal dividend rise isn't likely to come this year. But analysts at Macquarie say Verizon shareholders could see a one-time, 10% increase in the dividend in 2013 or 2014. AT&T is more likely to continue with its regular but more-sedate pace of dividend increases.

Dems: Secrecy doomed anti-counterfeiting treaty

Democratic lawmakers say they know why the Anti-Counterfeiting Trade Agreement faces tough odds in Europe: too much secrecy.

“If I had to predict right now, ACTA is not going to be ratified in Europe because of the public outcry,” Rep. Zoe Lofgren (D-CA) said. “I was critical, and I am still critical of the secrecy with which these agreements are being put together.” Sen. Ron Wyden (D-OR) echoed that sentiment. “The latest rejection of ACTA sends a strong signal that treaties impacting a free and open Internet can no longer be negotiated in secret,” Sen Wyden said. “I hope that lawmakers will not again attribute this defeat to ‘online misinformation’ and will instead understand that drafting policies impacting the Internet requires engagement with the millions worldwide for whom the Internet is a part of their daily life.” Although ACTA seems doomed in Europe, the Office of the United States Trade Representative is still talking it up. “We believe that the ACTA will play a key role in helping to protect the intellectual property that is essential to American jobs in innovative and creative industries,” a USTR representative said about the treaty. But Rashmi Rangnath, a staff attorney with Public Knowledge, agreed with Rep Lofgren and Sen Wyden.

On indecency, SCOTUS puts onus back on FCC

The battle between the government and broadcasters over a pop star’s profane slip of the lip or a TV drama’s brief flash of nudity is far from finished in the wake of the Supreme Court ruling on the FCC’s indecency rules.

The court essentially handed the hot potato back to the Federal Communications Commission by punting on the free speech issues in the case. “The Supreme Court decision leaves the big issues for a different day,” said Andrew Jay Schwartzman. “If the FCC chooses, there will be more fines and litigation that will go on for years. This is potentially a Pyrrhic victory.” The court did level a new layer of pressure on the FCC to amend its policy. In the SCOTUS majority opinion, Justice Anthony Kennedy signaled that tweaks are in order. But what — if anything — the FCC does is still an open question. Some observers say the FCC’s most logical move would be to retreat to its practice before 2001, when the commission generally declined to sanction fleeting and isolated uses of expletives, except in very specific circumstances. “If they were to go back to the light touch, that would be one way to resolve this,” a broadcast source said. “In terms of constitutionality, that would be the smart thing to do.”

Reconsidering the FCC’s Political File Rule

[Commentary] The question isn’t why broadcasters don’t want to provide their political files online (they are willing to do this), but why defenders of the Federal Communications Commission rule insist on requiring the online display of stations’ ad rates? After all, one of the main goals of the campaign finance laws is to provide, in a timely way, information about candidate and issue expenditures. It’s not the goal of these laws to compel TV stations to divulge their competitive secrets about ad rates and the like.

[Patrick Maines is president of The Media Institute, a nonprofit organization that promotes free speech, sound communications policies and journalistic excellence.]

Warren Buffett's Cut-Price Community Spirit for Newspapers

Wealthy investors including Sam Zell and Philip Falcone have swooped into the troubled newspaper industry in recent years, trying to call the bottom. Few have seen success. Now Warren Buffett is diving into print. Has he waited long enough to get real value?

On June 22, the Omaha World-Herald, a division of Buffett's Berkshire Hathaway, agreed to buy the Waco Tribune-Herald, which sells 34,000 copies daily. Earlier this month, it snapped up another Texan newspaper. This comes after Berkshire's purchase of 63 small-market papers from Media General in May and December's acquisition of the World-Herald, adding to longtime holding the Buffalo News. While Buffett has been vocal about the secular deterioration of the newspaper business, he has expressed a belief that small, local papers have a strong future. And as an ultra-long-term investor, he likely has the stomach to navigate all of the digital turmoil before they get there. While metropolitan dailies have been crushed by declining advertising and falling circulation, small-market papers have found some protection. Coverage of community events, local sports and local politics remains tough and expensive to replicate. And Buffett appears to have chosen papers with monopoly local positions.

NBC Series Saved by Delayed Viewership

How did NBC’s Smash wind up tying for the top position at 10 p.m. among viewers most coveted by network executives — those 18 through 49 years old? The answer lies with the digital video recorder, or DVR.

Negative reports about the performance of “Smash” generally took into account only how it had fared on the first nights that it was shown on NBC. As is now the case in prime time, however, a show’s true popularity can no longer be assessed by instant analysis. The first-place 18-49 ranking for “Smash” occurred in what is known as the “live+7” ratings, which include playback of recorded television shows over one week. On average, “Smash” added 2.5 million viewers over seven days of playback and averaged a 3.3 rating in the 18-49 category. No 10 p.m. network show did better in that category. Two CBS dramas, “Hawaii Five-O” and “C.S.I.,” each scored a 3.3 also. “Playback is a big factor in determining how many people like a show, there’s no question about it,” said Leslie Moonves, the CBS president, who has more programming experience than any other current television executive.

Advertisers Urged to Use More Black Media

Note to marketers: Television advertising is not post-racial. That’s the message that a newly formed consortium of the country’s largest African-American media outlets wants to send to marketers, who have largely shunned black media in favor of placing ads on general outlets.

BET Networks, Black Enterprise, Johnson Publishing (the publisher of Ebony and Jet magazines), the National Association of Black Owned Broadcasters and others will join with media-buying agencies to introduce a campaign intended to educate advertisers about the importance of black media and its increasingly deep-pocketed audience. Called #InTheBlack (using the Twitter hash tag), the campaign will begin with print advertisements in major newspapers (including The New York Times) and trade magazines like Broadcasting & Cable and AdWeek. It will expand to a long-term joint effort that includes social media and direct outreach to marketers.

Lawyers Get Vigilant on Cybersecurity

As hackers step up attacks on law firms, attorneys are being forced to master a subject few of them studied in law school: cybersecurity. Lawyers, who increasingly rely on email, smartphones and other mobile devices to handle deals and other confidential matters, are being asked to encrypt messages, resist using free Wi-Fi connections, which can allow hackers to eavesdrop on communications, and regard even text messages as potential security threats.

Shields for Privacy in a Smartphone World

Hundreds of millions of active smartphones in the world mean hundreds of millions of recording devices ready to capture your every move or utterance. Then, it is just as easy to catapult these photos, recordings or videos onto the Internet for all to share. So how can it be stopped?

Either someone invents that invisibility cloak from the Harry Potter movies, or companies will have to take a cue from James Bond movies and develop counter-surveillance products that allow us to move about without worry in public. It could be the companies that have created these technologies that help protect us from them. For example, late last year Apple patented a technology that can disable an iPhone camera, using infrared sensors, when it is pointed at a concert stage or movie theater. It was created to prevent music or movie piracy. But this product could be useful to regular people, too.