This feels like something of a slime ball move on Uber’s part on two fronts: firstly, trying to move the court case with Waymo out of open court and behind closed doors; and secondly, essentially trying to push the case off its back and onto Levandowski’s. I had said previously that the course was going to be fascinating for the details it would provide about how Uber developed technologies and how it would defend against what look like fairly solid allegations, but if it gets its wish here we won’t get to see any of that. But I think it’s the attempt to make this a case about an employee rather than the company that seems particularly sleazy – if the allegations are indeed true, then Uber and not Levandowski benefited the most, and making this seem like a dispute between an employee and former employer feels like a total misrepresentation.
via USA Today
Apple Joins Group of Companies Supporting Google in Foreign Email Privacy Case – Mac Rumors (Mar 14, 2017)
Given the way other big tech companies had weighed in on the related Microsoft case over the past few years, it was a little odd that more hadn’t sprung to Google’s defense in this one, but it’s good to see that they are now doing so. These cases have far-reaching consequences not just for user privacy but for the ability of US companies to do business in overseas markets, and those companies need to defend themselves vigorously. The final outcome of both cases is therefore worth watching closely.
via Mac Rumors
Alphabet’s Waymo filed an injunction against Uber for allegedly stealing intellectual property – Recode (Mar 10, 2017)
The fact that Waymo is suing Uber isn’t new, but this new step of filing for an injunction is, and that’s important because it could speed things up considerably. Judging the case in full could have taken months if not years, but a request for an injunction will involve convincing a judge in a much shorter space of time that there’s enough merit to the case for him or her to intervene in the near term. So we’ll know rather sooner how solid Waymo’s case here is, and will likely also get additional details from both sides about exactly what’s been going on. Importantly, we’ll get more from Uber than its brief initial statement about the accusations being baseless, which will be intriguing because from where I sit the forensic evidence looks fairly compelling. As I’ve said before, though, the toughest aspect of this for Waymo and its lawyers is proving that Levandowski actually used the files he downloaded rather than simply his memories of work he’d previously done.
Just a quickie here – Apple has now sued Qualcomm in the UK too, on top of its existing suits in China and the US. There’s not a lot more detail in this article or, apparently, in the court filing itself, but the thrust of the UK case seems to be the same as in the other cases already filed.
Uber’s self-driving unit quietly bought firm with tech at heart of Alphabet lawsuit – Reuters (Mar 1, 2017)
This is an interesting angle on the Uber-Waymo lawsuit over the alleged stealing of LiDAR technology by Anthony Levandowski – it appears Levandowski’s Otto acquired a company which specialized in LiDAR technology before it was itself acquired by Uber, providing an alternative theory for how the company was apparently able to get up to speed so quickly on the technology. One of Waymo’s key arguments in its suit was that Levandowski appeared to make unreasonably rapid progress on LiDAR following Otto’s founding, and that the only explanation was theft of ideas, designs and so on from Waymo. As an interesting side note, see also this newly-released October 2016 interview with Anthony Levandowski from Forbes, in which he somewhat bizarrely volunteers the information that he didn’t steal any IP from Google when he left. He also talks through his long history with autonomous driving technology, which raises a key point here: clearly Levandowski learned a lot about this technology over the years, and taking that knowledge with him to a new employer clearly isn’t stealing. So how does Waymo prove in court that Otto/Uber used the documents he allegedly downloaded rather than his personal knowledge (or technology from somewhere completely different) in designing LiDAR systems? If you know the best way to build a LiDAR system because you’ve done it before, are you obligated to act as if you have no idea how to do it when you move to a new employer? I’m not a lawyer, but I think some of these questions are fascinating, and are likely to be critical in this case.
Apple, tech leaders will side with transgender youth in upcoming Supreme Court case – Axios (Feb 24, 2017)
This is a nice scoop for Ina Fried, who just moved from Recode to Axios. But more importantly, the news itself is a significant escalation of the comments several tech companies made this week about the Trump administration’s policy on transgender students and bathrooms in schools. This would now be the second time in as many months that several major tech companies find themselves on the opposite side of a high profile legal case from the new administration. What a massive turnaround from those first weeks after the election, when tech companies seemed afraid to say anything negative about the new US government.
Waymo Sues Uber over Stealing of Confidential Information (Feb 23, 2017)
Alphabet autonomous driving subsidiary Waymo is suing Uber and its Otto subsidiary over alleged stealing of confidential information by Anthony Levandowski, who was one of the early executives at Waymo and subsequently left abruptly in early 2016 and immediately unveiled a self-driving truck company, Otto. That company, in turn, was acquired just a few months later by Uber. Waymo has done some fairly detailed investigate work that’s outlined in the complaint, and discovered that six weeks before Levandowski’s resignation, he downloaded lots of files from Waymo’s servers, and it argues that these in turn informed Otto’s (now Uber’s) LiDAR designs. As this blog post from Waymo says, fierce competition in autonomous driving technology is a good thing – it’s pushing the market forward rapidly and leading to some great innovations that should benefit consumers. But there are obviously lines companies shouldn’t cross as they compete, and this would be one of those, if it’s proven to be true. This is the second lawsuit in recent weeks involving employees moving between autonomous driving companies – the first involved Tesla and a startup. In both cases, the allegation is in part about stealing proprietary information. Given that Uber is already dealing with the fallout from a sexual harassment and discrimination blowup in the past week and still reeling from the #deleteUber campaign, this is terrible timing, but may also be a sign that the company’s aggressive stance on competition is hurting it in more ways than one.
Apple files 14-point appeal against European Commission’s $14 billion tax edict – AppleInsider (Feb 21, 2017)
Long story short: Apple has filed its formal appeal of the EU’s action against Ireland regarding Apple’s tax treatment in the country, and it argues for the dismissal of all charges on the basis of a number of different points. That’s not surprising – Apple immediately after the ruling said it would appeal, so this is just that process rolling along. I’ve never been a huge fan of the ruling – it felt like judicial overreach and part of the ongoing spat between the EU and US on taxes and on competition between US and European tech companies rather than something based on actual legal merit. Nevertheless, as I admitted at the time, neither I nor the vast majority of other tech industry commentators are actually experts in EU tax law, and even admitted experts like the Irish authorities, Apple’s accountants and lawyers, and the European Commission’s investigators can actually agree on what the right answer is. We can state opinions all we want, but they don’t actually matter – this case will go to court and at some point a conclusion will be reached which all the parties will have to live with. A move to enable lower-tax repatriation in the US would certainly go some way to bolstering Apple’s case that it already pays adequate taxes in its home market on what it earns in Europe, but Apple has no direct control over that outcome either.
This is really just an addendum to yesterday’s item about the amicus brief filed by (then) 97 tech companies, as some 30 additional companies added their names to the brief yesterday afternoon. Among them were some of the Elon Musk-controlled holdouts from the initial set, Tesla and SpaceX as well as a number of smaller companies which simply don’t seem to have been looped in to the initial effort. The remaining holdouts are increasingly conspicuous by their absence, though it remains more consumer- than enterprise-focused as a group (HP did sign on later in the day, but IBM, Oracle, and other enterprise heavyweights are still missing), and the telecoms carriers and cable companies are all missing as a group too.
It turns out Vizio has been collecting extremely granular data on users of its smart TVs, and then matching its IP data with offline data about individuals and households (essentially everything short of actual names). And it’s done all this without making users properly aware that this was what it was doing. The data related to everything consumers watched on the TVs, whether the content came through Vizio’s own smart TV apps or merely through one of its inputs from another box or antenna. Something I’d forgotten was that Vizio filed an S-1 in preparation to go public back in 2015 – it never actually went public because Chinese player LeEco decided to acquire them (a deal due to close shortly). Aside from talking about how many TVs the company sells, the S-1 makes a big deal of of the “up to 100 billion viewing data points daily” it collects from 8 million TVs, and touts its InScape data services, which package up this data for advertisers, although it says this data is “anonymized”, which feels like an alternative fact at this point. The risk factors in the filing even mention possible regulatory threats to such data gathering, so it’s probably fair to say that Vizio shared more information with its potential investors about the data it was collecting than it did with end users. To settle the case, Vizio has to pay a total of $3.7m in fines to the FTC and the state of New Jersey (whose AG brought the suit with the FTC), discontinue the practice, and disclose it to consumers. I can’t wait to see how it manages that last point – imagine turning on your Vizio TV one day and seeing a message pop up about the fact that it’s been tracking your every pixel for the last several years. Assuming that’s done right, it could be the most damaging part of it this for Vizio, which made over $3 billion in revenue in its most recently reported financial years. Meanwhile, yet another headache for LeEco to manage.
Last week, Recode reported that several big tech companies were drafting a letter to the Trump administration on immigration, though I still can’t find confirmation that this letter has actually been sent. However, those tech companies and many others have now filed an official friend of the court brief in the lawsuit being brought against the administration by the states of Minnesota and Washington. This steps things up a notch, formally putting the 97 companies behind the brief on the other side of a court case from the administration. As with the early condemnations of the executive orders just over a week ago, Amazon is notable by its absence, as is Tesla (whose CEO Elon Musk has continued to sit on the advisory council Uber CEO Travis Kalanick vacated last week). Tesla’s absence is consistent with Musk’s overall stated strategy of trying to bring change from within, but Amazon’s absence may simply be due to the fact that it weighed in on the case separately earlier in the process (though Microsoft has participated at both stages).
Update: this tweet explains that Amazon was asked not to sign the amicus brief because it was a witness in the original case.
Court Rules Google Has to Hand Over Data in Contradiction to Recent Microsoft Ruling – The Register (Feb 4, 2017)
The recent ruling in the ongoing case involving Microsoft and customer data stored outside the US had at least temporarily provided some reassurance that the big tech companies’ stance on this issue would be upheld in court. However, a new court in a different part of the US has now ruled the other way, though its rationale for ruling differently is that Google manages its data and data centers differently from Microsoft. This is a blow to the big tech companies who’ve fought to keep their overseas data centers (and the data held there on non-US customers) off limits for US law enforcement, but the Microsoft case was likely to go to the Supreme Court anyway. Hopefully, the court will rule in such a way that provides clarity not just in the Microsoft case but more broadly on this question.
I’ll have more on Facebook earnings shortly, and this is bound to come up, but this is a big loss for Facebook financially as well as embarrassing for some key figures from Mark Zuckerberg through the Oculus employees who were directly impacted in this verdict. Facebook will no doubt appeal, so this isn’t settled yet, and it only adds the equivalent of a quarter of the original purchase price to the $2 billion Facebook spent on Oculus, but it’s not chump change. Given how little revenue Oculus is likely to generate in the near term, this will put the acquisition further into the red for the time being. There are also eery echoes here of the Winkelvoss case against Zuckerberg himself, which of course was settled before a verdict like this was reached. Certainly not how Facebook would want to go into what looks at first glance like a really solid set of earnings.
Tesla sues ex-Autopilot director for taking proprietary info, poaching employees – TechCrunch (Jan 26, 2017)
Things are getting nasty between Tesla and one of its prominent former employees, Sterling Anderson, who used to run its Autopilot program. The lawsuit alleges that Anderson both took proprietary data from Tesla when he left and that he tried to poach additional Tesla employees to work on his new venture with Chris Urmson, formerly of Google’s autonomous driving unit. This lawsuit just highlights how competitive the space has become, and how eagerly many different companies including established carmakers, smaller carmakers like Tesla, big tech companies like Apple and Google (and Uber), and startups like Anderson and Urmson’s new venture Aurora are pursuing it. We’re going to see a lot of ugliness, and certainly plenty more hiring and poaching between these various companies, over the coming years.
The Apple-Qualcomm saga continues. Qualcomm was investigated by the Chinese authorities a couple of years back and although that investigation ended in 2015, Apple appears to be using it in much the same way as it is using the FTC’s action against Qualcomm in the US, as a basis for its own legal action. It’s still almost impossible for any outsider to know how much merit there is on each side of this argument, let alone how individual court systems might ultimately rule, but this fight just keeps getting uglier.
The Qualcomm ‘Tax’ Rebellion – Bloomberg Gadfly (Jan 24, 2017)
This is a great explanation of exactly what’s going on in the lawsuit between Apple and Qualcomm and the various investigations of Qualcomm by competition authorities in several jurisdictions. At root is the fact that Qualcomm charges a licensing fee based on the total cost of devices, not just on the parts Qualcomm makes, a model that’s increasingly out of whack with where the value is in smartphones. It really is starting to feel like the industry has reached a tipping point at which it will no longer put up with this licensing model, and if things don’t go Qualcomm’s way, that will be extremely damaging to its business. Meanwhile, it keeps selling chips to Apple to use in phones, because to stop would be incredibly damaging too.
via Bloomberg Gadfly
Qualcomm Comments on Apple Complaint – Qualcomm (Jan 21, 2017)
This is Qualcomm’s official statement on Apple’s lawsuit filed yesterday in San Diego, and it predictably pushes back on the key points in Apple’s filing. It argues that Apple has been the instigator of the various investigations of alleged anticompetitive behavior by Qualcomm in various jurisdictions, and that Apple has been misleading in its statements to the various authorities involved. Unlike some patent disputes, many of which are ultimately settled out of court, this one looks set to go the distance, given the sheer acrimony involved and the fact that this goes beyond a mere dispute over royalties. Combined with the FTC and Korean case, Qualcomm has plenty on its hands here.
First we had the FTC taking action against Qualcomm, and now Apple is joining the fray, and I’d argue that’s not at all coincidental. Apple would obviously dearly love to pay Qualcomm less money for licensing and chips, and the FTC has given it the perfect ammunition by highlighting alleged wrongdoing on Qualcomm’s part. Intriguingly, it appears that Qualcomm has been withholding rebates due to Apple in retaliation for Apple assisting the South Korean authorities with their recent investigations into anticompetitive practices by Qualcomm. But Apple is also going a lot further, by making some of the same arguments put forth in the FTC case about overcharging for essential FRAND patents. This is going to get ugly. I’m seeing – both in this Bloomberg piece and elsewhere – suggestions that this lawsuit stems from high pressure Apple feels around iPhone growth and margins, but that’s nonsense – Apple will always try to get the best margins possible, and when it’s given a way to apply pressure to a supplier, it’ll do so. The FTC action provided just such a way, so that’s the proximate cause here, not any sort of crunch on the Apple side.
Uber has often been willing to flout regulation in order to stake a foothold in a market, at which point it typically turns its customers into advocates and makes arguments about the contribution it’s making to the local economy in a bid to win formal approval from local authorities. This case brought by the FTC alleged that Uber had exaggerated those benefits significantly – it claimed NYC Uber drivers earned a median income of over $90,000, but the FTC found that under 10% of drivers earned that much, for example. Because Uber settled the case without admitting formal wrongdoing, there is no legal confirmation here that Uber lied, but that almost doesn’t matter. To the extent that Uber gets a reputation (accurate or otherwise) for lying about its economic benefits, its whole “better to ask for forgiveness than permission” strategy starts to break down.
FTC Charges Qualcomm With Monopolizing Key Semiconductor Device Used in Cell Phones – Federal Trade Commission (Jan 17, 2017)
The link below is to the FTC’s official statement on this action. This isn’t the first time Qualcomm has been accused by authorities of anticompetitive practices, but it’s been possible to dismiss the Chinese action as the action of a country trying to keep a foreign competitor in check. That obviously isn’t the case here, with the FTC taking aim at a home-grown company. The allegations are serious – that Qualcomm illegally ties licensing and chip purchases, that it refuses to license so-called FRAND patents on reasonable terms to competitors, and that it forced Apple into an exclusive arrangement that squeezed out competitors. This won’t be easily dismissed, and the stock price took a quick tumble by about 4% late in the session, though it’s relatively stable after hours so far. Qualcomm has dominated portions of its key markets, but if some of the strategies it’s used to achieve that dominance are undone by regulators, things might open up in interesting ways to competitors.