Wednesday, March 23, 2011

Book lending clubs OK - Microsoft sues B&N - Apple sues over 'app store' UPDATE3


There have been three main Kindle booklending clubs, with one of them handling both Kindle and Nook e-books.  See earlier descriptions and links to the three sites.  Sites described there are BookLending Club, Lendle, and LendInk.
  Another site, ebookfling, received a full report in the Los Angeles times at one point, reported here.
  UPDATE - Forum folks also recommend BooksForMyEreader which also does both Kindle and Nook. said all through the day, Tuesday, on Facebook and on Twitter, that their access to Amazon's listings was "unaffected," it was "business as usual" and "we're not going anywhere."

But there was generalized anger at Amazon for withdrawing Lendle's access to an Amazon API (special application programming interface), and the news stories tended to treat the action as a likely blanket decision to do a full stop on all e-book-lending clubs WHILE the four lending clubs mentioned above were up and running and the largest one had to keep telling members through the day that all was fine with them.

Why Lendle?
  There was something different with Lendle's situation.  It's not because they were larger and therefore more threatening to the publishers or Amazon. (formerly KindleLendingClub) now has approximately 18,000 members, and they say they're the largest lending site.

 However, Amazon could have been clearer, if Lendle paraphrased their statements well and didn't leave out important portions of the letter to them.  I think sometimes strange decisions are made at lower levels and the company pays for that later, but it was also quite odd that it was only Lendle that had the problem, of the sites that are most used.

  The most balanced and thoughtful column I read yesterday was by Slate's Farhad Manjoo, who did contact two of the other lending sites and found them both running and surmised:
' This suggests that Amazon might have shut down Lendle for narrow technical reasons.  So far, though, the company hasn't told Croft what those reasons are or what Lendle should do to restore access to the database. '
He also goes on to make many other good points, in general.

Here is Lendle's report-page re Amazon's actions and the explanation for the re-instatement last night.   About Amazon's latest email to them, they report:
' Late today, we received an email from an Associates Account Specialist at Amazon informing us that their concern only relates to our Book Sync tool, which syncs a user’s Kindle books with their Lendle account.

  Amazon informed us that if we disabled this feature, our access to the API, as well as our Amazon Associates account, would be reinstated.  We appreciate Amazon’s willingness to modify the position stated in the original access revocation email and work with us to get Lendle back on line.  We have complied with the request to disable the Book Sync tool (which was a very useful, but non-essential, feature of Lendle). '

That would be, then, the "narrow technical reason" that Slate's writer expected was the problem.  It appears to be a tool that's "non-essential" for Lendle but the sync'g of a user's Kindle books with their Lendle account seems to have been meant by Lendle to make it possible to confirm that the member had actually bought the book from Amazon.

  On the other hand, the use of that API seemed to encourage making known what was available for lending for each person even if the author had not thought to lend it, so that it encouraged random lending even more.  Both publishers, already paranoid about e-books, and Amazon would have reason to be nervous about that.

Microsoft's lawsuit against Barnes & Noble (Nook)
"Microsoft sues Barnes & Noble over Nook reader"
Points in the ibnlive article:
' Microsoft Corp filed lawsuits for patent infringement on Monday against bookseller Barnes & Noble Inc over its Nook electronic book reader, widening the software company's legal assault on devices running on Google Inc's Android system...
. . .
In lawsuits filed in federal court in Seattle and with the International Trade Commission on Monday, Microsoft claimed the Nook line of e-readers infringe five Microsoft patents, concerning the way they display retrieved images, show the status of downloaded material on a small screen, edit electronic documents and render annotations.

The lawsuit also charged the makers of the devices, Foxconn International Holdings Ltd and Inventec Corp, with patent infringement.

"The Android platform infringes a number of Microsoft's patents, and companies manufacturing and shipping Android devices must respect our intellectual property rights," Horacio Gutierrez, deputy general counsel of Microsoft's intellectual property and licensing, said in a statement.

"We have tried for over a year to reach licensing agreements with Barnes & Noble, Foxconn and Inventec. Their refusals to take licenses leave us no choice but to bring legal action to defend our innovations."

Barnes and Noble said its policy is not to comment on litigation. Foxconn and Inventec could not immediately be reached for comment.' ...

It's surprising that B&N would 'refuse' to take licenses since they had put B&N up for sale due to less than favorable circumstances.  Foxconn provides essentials to all the device-makers.  How does that affect things?
  UPDATE3 - Commenters to the blog have explanations for this.

  Amazon took action to prevent possible problems with Microsoft last year and they're not known to 'give' where it's not required.   Nieman Journalism Lab's Tim Carmody pointed out that "Microsoft and Amazon made a broad patent cross-licensing agreement for the Kindle and other technology, but it’s not known whether and under what conditions that agreement would permit an Amazon-branded multimedia tablet or prohibit it."

  The Nieman piece by Carmody is more general and makes these points:
' ...Like Frommer, I think it’s unlikely that the mainstream Kindle will be radically altered. It is simply too successful for what it is...

  Amazon plus Google may be the most dangerous competitor Apple could face.  The open question would be whether such a “Googlezon” tablet would need to carry the Kindle brand, or whether (like “Wintel”), they could set the market standards for an ecosystem of third-party manufacturers. '

  There's more at ibnlive.

  Here's added detail from AP on the situation.

Apple filed a complaint against Amazon to prevent the use of "app store"
TechConnect's Cristian writes a short and sweet story explaining this (bracketed clarification mine):
' ...Apple is currently engaged in proceedings to register App Store as a trademark and says that Amazon's use of the words would confuse and mislead customers.  Of course, iOS users [Apple operating system users] wouldn't really be 'confused' since Amazon's store would sell Android apps but even so, Apple doesn't like it and wants the court to throw the ban hammer at Amazon.

If Apple succeeds with its lawsuit then Amazon will have to figure out a new name for its store. '

ZDNet's Larry Dignan has a very detailed piece that should be read, explaining "Apple's stance: "Apple's App Store and a little trademark history"

Bloomberg gives detail on Apple's "Unlawful Use Claimed."
' Amazon has unlawfully used the App Store mark to solicit software developers throughout the United States,” Apple claimed.

Apple said in the court filing that it contacted Amazon three times to demand that it cease using the name and that Amazon hadn’t “provided a substantive response.”

“We’ve asked Amazon not to copy the App Store name because it will confuse and mislead customers,” said Kristin Huguet, a spokeswoman for Apple.

Apple applied to register App Store as a trademark in the U.S., and the U.S. Patent and Trademark Office approved the application, Apple said in the lawsuit.

Microsoft Corp. (MSFT) opposes the registration and the matter will be the subject of proceedings before a trademark appeal board, according to the court filing. '

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Kindle 3's   (UK: Kindle 3's),   DX Graphite

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  1. B&N's refusal to license Microsoft's patents isn't unusual at all, if you understand the way patent litigation works.

    The very short version: The fact that Microsoft holds some patents doesn't mean those patents are valid. The thing patented could be "obvious" (in a legal sense) and therefore not patentable, or there might be "prior art" out there showing other people had used those techniques before Microsoft filed their patent. Or there could be technical flaws with the patent that render it invalid.

    The general course of patent litigation goes like this. A company (Microsoft, say) sues someone and releases press releases much like the one Microsoft did. The company being sued files a request for reexamination of the patents with the US Patent and Trademark Office. About 97% of these requests are granted, and in the vast majority of patent cases involving software, the original patents end up either invalidated or narrowed in scope. Generally, the court in which the lawsuit was filed will stay (ie, delay) the lawsuit pending the outcome of the patent reexamination.

    Generally, with patent infringement in the software business, the company suing doesn't WANT a court (or the USPTO) to decide the validity of their patents. If a court or the USPTO has to actually decide the matter, the odds are much better than even that they'll lose, and the odds are good that their patents may be invalidated. What they want is for the company they sue to respond with "oh, my, Microsoft's suing us...better pay them some money to go away." That's how the patent game is played, unfortunately.

    And, Android being the hot new kid on the block and free (to the device makers, unlike Windows Phone 7), lots of people want to find a way to clamp down on, or profit from, its popularity. So, probably the best that can be said about this case is that it's far too early to tell what Microsoft's chances are and whether the patents at issue are, or will remain, valid.

    (Disclaimer: I am a paralegal, with some experience in this area of law, but I am not a lawyer.)

  2. My impression is that Microsoft's claims are probably without merit, since that they are about software patents, which are generally worthless, technically speaking. But Microsoft is desperate because they are losing in the mobile marketplace. And when Microsoft senses they are losing in the market, they resort to bullying and intimidation. This really an attack on Google, but Google has lots of lawyers and money, so Microsoft picked a weak target instead.

  3. Thanks, Tammy and Mark, for the enlightenment :-)

  4. I used Lendle before they were briefly down, both when you had to manually add books and when their book sync tool went live. You could add books before and the site simply assumed you owned the book. If you didn't, you just wouldn't be able to lend it out later down the line. The sync tool was more about helping you with the laborious task of importing all of your books than actually validating ownership.

    I'm not 100% positive about how the technical details of the sync tool worked, but it involved adding a bookmarklet to your browser and navigating to your Kindle purchase history page on the Amazon site, where you were to execute it. Likely it performed a form of 'screenscraping', where third party code reads what is on a web page and reports it back to Lendle. This would have not used any official API access and may have been Amazon's bone of contention.

    The fact that Lendle had to go the very user unfriendly route of the bookmarklet suggests that there's no official way in the API for third party sites to gain access to your purchase history for Kindle books.

  5. A story over at The Economist confirms my screenscrapping theory. Lendle themselves said "We weren't screen-scraping user's accounts. We did provide a tool that let them screen-scrape their own account."

    I think that's only a minor distinction and one that Amazon probably wouldn't agree with. I also don't think it was a bad move of Lendle to push the limits and see what they can do to introduce a feature that clearly benefitted the users: Being able to easily add their books to their Lendle list. They tried, Amazon took notice and called them on it, and in the end they were able to negotiate a situation where the site could continue to run, and at the same time draw public attention to some of the current limitations in the book lending process.

  6. Joost, I left a comment at The Economist yesterday. Here's what I wrote, also, Ars Technica though:

    "As you note in your detailed look at Lendle, they used the API to look up and tell the customer which books they had that were lendable, rather than just let the customer decide when they want to lend something out. In other words, it promoted borrowing beyond the normal impulses in an e-book pricing war atmosphere where publishers are already bent out of shape at Amazon's lower pricing impulses.

    ... The publishers have the limit set at 1 and only one loan per book in your lifetime. ... it was set by publishers and not by Amazon or Barnes and Noble. They are both subject to the same rigid rule.

    But I also don't think a book-lending company should make it part of everyday policy to actively encourage lending by identifying what else you might lend in a situation in which Amazon is pitted against the publishers constantly...
    Macmillan and Simon & Schuster won't even lend e-books to public libraries. HarperCollins didn't make any of my books lendable while Hatchette did.

    Lendle has already said it was a 'non-essential' API, the book sync'g, though useful. The other bookclubs have just gone on this week without having to stop, and the largest was never in trouble on this (as they kept telling members that first day), so it's not about general use of the lending capability.

    Thanks for describing what Lendle did that was different. But it doesn't mean that Amazon is curtailing lending except not to give certain API access to those who will use it to encourage lending beyond the norm when obviously it's a company that makes money (with margins so small that publishers have been angry at Amazon for that because others can't compete with small margins or even loss-leadering... "

    Lendle dug into the personal Amazon acct details and used them to alert Lendle members what else they could loan ---The agreement for access is to use it for selling, which is common sense in a profit-focused business, and is the only reason for access permission. So Lendle dropped that Book-Sync tool and was reinstated.

  7. Joost, [Correction] here's what I did write The Economist column, when they still felt that Amazon had decided Lendle did comply with their rules and so they put them back. No, they asked them to remove the special 'book sync' tool which lets Lendle access their personal account and scoop up all the books available for lending and fill their Lendle account with those details.

    That access is given for purposes of selling books and not to encourage lending them. That just makes sense - it's an Amazon tool allowing access to people's personal account history. Why would Amazon allow those lists for a lending-only site? So, it's clear their use didn't comply. BUT I think it was a lower level decision not to even let them reply first and they just cut their access w/o giving them the chance to remove that tool and the way they were using it.

    === To the Economist ===
    "What Lendle explained to customers was this.
    Amazon wrote them to say Lendle needed to remove the Book Sync'g tool to get access to the API again as well as the Associates account.

    Lendle agreed to disable Book Sync'g, which you explained had given them their "leg up" on the other e-book lending sites.

    Not surprisingly, the other e-book lending sites were not affected. You actually explained why this happened."

    The tool actually had permission to directly access the person's personal Amazon account e-book history (not the webpage), what the member had, and this carried the linked-info about which ones were lendable, and this access is apparently specifically given for the usual sales purposes, to display them for that purpose, etc. -- Amazon lets developers access those tools for only that 'selling' purpose and it's spelled out in their developer agreement, which people have quoted.


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