Devil’s advocates play up sympathy for Samsung after Apple trial
August 26th, 2012
Daniel Eran Dilger
In a desperate bid to appear evenhanded, mainstream journalists of all stripes have dashed to their MacBooks to construct sympathetic stories casting teary-eyed hope for Samsung while fretting about the potential for more expensive iPhones after Apple’s victory in defending its patents.
Why, exactly, would a multibillion dollar Korean conglomerate that has a solid track record for overtly lying about everything from its sales numbers to its insistence that it did not copy Apple (even while detailing its plans to do just that across 100 formerly confidential pages of internal strategy) suddenly need to have its dire prognostications of stifled markets and higher smartphone prices taken seriously?
Even President G.W. Bush mastered the concept of “fool me once, shame on… shame on you. Fool me, you can’t get fooled again!”
The media, initially led by none other than the Wall Street Journal (a source that is usually supportive of the rule of law rather than being contemptuous of successful companies and sympathetic to convicted counterfeiters — a position more understandably held by ideological bloggers with a hankering for socialized software), was doubling over backward, apparently to avoid looking “unbiased.”
“After Verdict, Prepare for the ‘Apple Tax'” the Wall Street Journal complained in an article that never explained why the verdict would result in a “tax,” unless we count every R&D expense as a “tax,” making the end of counterfeiting, naturally, the beginning of “taxation.”
The Journal might as well ask for Communism to deliver some “tax relief” from the onerous “taxes” that land and other property exhibit in the form of acquisition costs.
In fact, if you read anything about the legal skirmish between Apple and Samsung, and replace “patent infringement” with “real estate title arguments,” the entire argument of the IP communists collapses into dust.
Bloggers shed tears for enforcement of the rule of law
Engadget blogger Jon Fingas just offered an opinion that suggest it would have been nice if only Apple and Samsung had “refused the temptations to sue” and instead had “decided to compete only with the best possible devices they could muster.”
That makes sense until you realize the absurdity of the fact that the “best possible devices” Samsung “could muster” were counterfeit devices that willfully broke our patent laws to gain an unfair advantage in the market. Unfair both to Apple and to the more legitimate Android makers and others working to respect IP while building competing devices
If somebody breaks into your house and steals your TV, should you forgive the thief and just work some extra overtime so that both you and the thief can own the nicest TVs “you can muster”?
You want the truth? You can’t handle the truth!
God forbid there might be any acknowledgment of the fact that some things are true and some are not. Initial coverage of verdict seemed to imply that there was actually some legitimate question of whether Samsung had infringed, if its own “mode” patents and FRAND commitments were equally legitimate, or if the answer to any lawsuit can be rectified in any form other than cutting the baby right down the middle, King Solomon style (as a Korean court recently did, just to show the world that it wasn’t entirely engaging in overt domestic protectionism, at least in some measure).
Why exactly is Samsung being treated by anyone as having any sort of legitimacy? The majority of its case was written by Android fan bloggers, from its SciFi prior art claims to its insistence that Samsung’s own 3G patents are the “one bullet to kill” to the idea that all of Apple’s patents could be boiled down to three words: “rectangle,” “round” and “corners.”
“Rectangle” has already become the shibboleth indicating when those talking about the trial are actually freebasing socialist software and simply hysterically high on Android-powered bath salts.
Nearly everything Samsung has asserted has been either a bold lie or complete nonsensical bullshit. Why is the media so eager to run with the specious claims of such a phony bunch of disingenuous counterfeiters?
If you put Apple’s design patent claims on one side of a scale, and then put Samsung’s “dusted off” patents related to such obvious and patently ridiculous concepts as “sending photos via email” on the other, does one really see anything resembling balance? The jury sure didn’t after a month of listening to evidence.
How about when one puts the most shamelessly flagrant duplication of the most obviously game-changing commercial product of the past decade in one bucket and compares it to a list of ancient patents Samsung itself has never used and couldn’t bother to spend more than five minutes even addressing in its own closing arguments?
Balance reporting invents controversy
This is not a real controversy. Shame on the media for trying to suggest that the jury should have thought longer and harder about its decisions. The reality was that jurors spent plenty of time over the last month being convinced of what was going on, as Apple laid out a series of smoking guns while Samsung argumentatively quibbled over nonsense.
Bloomberg seemed to imply iPhone favoritism in the jury under the headline “Apple-Samsung Jury May Have Leaned On Engineer, Patent Holder,” without regard for the fact that both sides were arguing patent claims. The piece even companied that Apple had the audacity of removing a Google-employed Android engineer from the jury pool, as if there should have at least been one Samsung-aligned member helping to guide the jury’s decision.
Oh the humanity! When will this persecution of Android ever stop? What has it ever done to anyone apart from appropriating the worlds largest smartphone platform from Sun and then applying a layer of Apple’s iOS on top, with the sole intent of illicitly transferring American technology directly to China?
While I’m on the subject of phony evenhandedness: there’s also no controversy about whether America should teach its children folk stories in place of established science, whether women are chattel or people, or whether Real Americans can be something other than white, whether the Holocaust occured, and whether or not tropical storms are directed by God to randomly kill children as a warning not to allow gays have equivalent civil rights in secular society.
These are no more “controversial” than suggesting Communism as an potential economic model for America, or Sharia as a social one. The fact that nutjobs with zero credibility can raise stupid issues does not mean the nation must take them seriously. Everything isn’t a controversy just because known liars step forward to argue points clearly rooted in their own financial interests.
What’s next for Samsung, Android
Samsung’s media serenade by pundits’ weeping violins will end soon enough. It should help that nobody really cares about Samsung. Microsoft isn’t trying to push the company’s copycat designs anymore, given that Samsung’s Windows Mobile Blackjack (itself a Blackberry clone) hasn’t been popular since the iPhone’s debut. Microsoft is partnered with Nokia now, LG behind that, HTC behind that.
Other Android makers are understandably embittered that Samsung shot to second place (I’m talking about making money, not the pursuit of creating and distributing devices for ideological reasons) in the smartphone market since 2010 by overtly cloning Apple, a move that not only irritated Apple, but also made the rest of the Android ecosystem look bad. Samsung’s decisions have since also helped the rest of the Android makers to lose money.
Google has other Android favorites, notably its own Motorola subsidiary, which it needs to pay back some of that $12.5 billion. In fact, now that Google has been portrayed as having appealed to Samsung executives, “you can’t copy the iPad that closely!” it’s easier to ignore the fact that Google fed Samsung its copycat strategy by supplying it with Android and pushing it in the direction of the iPhone and iPad to start with.
Google’s only real concern with Samsung was that the original Galaxy Tab wasn’t compatible with its Android Honeycomb 3.0 release, which they once called an “iPad killer,” at least in the giddy months prior the universal realization that Honeycomb was a disastrous bomb and one of Google’s biggest failures to date (and that’s saying a lot, given the series of significant and notable product failures Google has introduced just since the iPhone’s debut).
Android itself is a mixture of contempt for Oracle’s JavaME intellectual property and contempt for Apple’s iOS intellectual property, rolled into one big cake replete with stacks of infringement layers.
At this point, Google needs to distance itself from Samsung’s billion dollar negative verdict, lest it associate Android with failure in the courts, and not just commercial failure (which can be more easily hidden under Google’s “give it away” business model).
What’s next for Apple
Apple’s strategy to end Android’s infringement is just getting started. The company needed to win a significant finding of willful infringement in the Android camp, and it hit the mother of all loads with Samsung. The situation was far worse (or better, if you’re talking easily provable guilt) than Apple had even been aware of when it began the trial.
Without Samsung’s overt and documented contempt for Apple’s legal rights, trying to argue against the nebulous identity of “Android” would have been impossible. Trying to investigate the activities of Motorola and HTC, and pin them down as unfair competitors cheating the system would be pretty difficult as well, given that they’re both losing money and failing commercially.
But Samsung is Android’s brightest star, earning the most revenues, the most profits, the most sales. It has maintained an shameless strategy of matching every move of Apple, and it meticulously documented its efforts to backstab its largest customer with knockoff copies of its designs and technologies.
Samsung managed to extract $8 billion from American consumers using these copies. There has never been a better target for Apple to take down.
Having fired its strongest guns and scoring a direct hit, Apple is now set up to simply flash its remaining portfolio of weapons to scare would-be infringers from clinging to its hull. If that doesn’t work to shake off the barnacles, Apple’s clear win from the jury has set up a strong foundation for building additional infringement cases, leveraging patents that attack the very core of Google’s iOS alternative.
Apple needn’t work to hard to “go thermonuclear” on Android. As I’ve noted before, the various benefits of the platform that Google promised its Android licenses have already collapsed. Microsoft has asserted licensing agreements with all the major Android licensees apart from Google/Motorola itself, erasing the “free” promise.
The “open” promise has similarly withered under Google’s failed leadership of the platform. Now, the “legitimate” promise has been filleted open, revealing a whole lot of problems that weren’t evident on the surface. Samsung has demonstrated an exaggerated example of what Android induces its licensees to produce, but its still an example.
Also, keep in mind that Apple has more than three utility patents and three design patents in its portfolio. While it can’t keep taking a billion dollars from Samsung at every trial, it can engage the company in an extended series of legal actions that will cost Samsung more than it is making on smartphones (particularly if you believe the lie that told about only making 12% margins on its high end US smartphones).
What about the law of unintended consequences?
Being Daniel Eran Dilger, I would now like to bring up the 1980s. If you compare Apple vs Samsung to Apple’s “Look and Feel” Macintosh lawsuits waged back then, you’ll see a difference in the order of defendants.
Back then, Apple successfully sued or threatened HP and other smaller efforts to create what Apple claimed were Macintosh knockoff environments that infringed its copyright. It then went up against Microsoft, the central ringleader with the most power to actually distribute infringing software.
That backfired badly, in large part because Microsoft had already secured a poorly worded license to some elements of the Macintosh desktop. As a result, Apple not only effectively handed Microsoft Carte Blanche to the desktop, but repressed any competition that might have slowed the growth of Windows across the agar of PCs.
Forget all the historical revisionism nonsense about Apple not having a copyright case against Microsoft to start with; Apple only lost that case because its chief executive John Sculley had inked a Mac licensing deal with Bill Gates in the hopes of keeping Excel on the Mac for two years (far less than it would have taken a company like Apple to write its own Excel clone).
At the time, Apple had a hard time taking Microsoft’s juvenile Windows software seriously as a threat. Had Apple not purged the PC market of competition (even blocking Steve Jobs’ NeXT computer!) before failing to stop Microsoft, Windows would never have made any headway.
That rendered Apple’s old Look and Feel lawsuits as being perhaps the greatest example ever of failing to consider unintended consequences in the tech industry.
Apple learned from its mistakes
This time around, Apple has focused on the successful Android licensee first, allowing the others to continue to take up space and compete for the non-iPhone dollar. Remember how Apple didn’t sue Palm, resolved its disagreements with Nokia, and focused on delivering new products while its attorneys labored away at building a case against Samsung? That sure seems according to plan.
As I like to point out, Apple does best when its facing a variety of competitors, rather than going up against one big monopoly. That also explains why it’s suing Android licensees individually, rather than trying to assert a case against Google and all of its partners together. Divide and conquer.
Had Apple instead taken on Google, it would have caused itself a huge bunch of grief and wouldn’t have had much leverage in doing anything to stop Android. If anything, this would have just allowed the Chinese to fork it and run with their own versions, Amazon style (as they already have).
Instead, Apple has adroitly scalped the biggest Android chief, delivering a decisive blow to the only Android licensee that’s actually making any real money and leaving the struggling HTC and LG to evaluate whether they really want to try the same type of copying and inherit the same legal illegitimacy Samsung has brought upon itself.
Samsung isn’t going away, and will continue to be the biggest and most profitable phone maker behind Apple. If Apple can leverage its win to throw up a series of roadblocks, which it very likely will, it will have the luxury of being able to not just control its own releases, but also to cause expensive chaos for Samsung, arguably a fitting response to the chaos Samsung has created for Apple.
Only one iPhone left to compete against
The biggest thing Apple has accomplished in this trial is not the collection of another $1 billion. It’s the sowing of seeds of resentment against Samsung, which will break it away from the rest of Android, likely causing it to focus more on Bada and Windows Phone 8 and other options (as Apple’s other patents take aim at critical Android OS design elements that Samsung will have a hard time working around).
Rather than trying to take on Apple, Android makers will take aim at competing with Samsung, the new lower hanging fruit. Google has already attempted to push its “pure Android” Nexus products (some made by Samsung) as better alternatives to “Android+” devices like Samsung’s own TouchWiz layer (which tries to look more like iOS).
Google hasn’t been tremendously successful with Nexus, but it has up until now been forced to compete against both Apple’s iPhone and Samsung’s counterfeit iPhone. Google and its licensees, along with RIM and Microsoft/Nokia, now only have one iPhone to compete against, making their jobs all that much easier.