Saturday 22 October 2016

Apple and Samsung reach Supreme Court in patent row

To find context ahead of Tuesday's showdown between Apple and Samsung in the US Supreme Court, you need to go back over a century to a row over some rather attractive carpets.
It's 1885, and John and James Dobson stand accused of nicking designs from other carpet makers and selling them off as their own. 
A couple of companies, Hartford Carpet and Bigelow Carpet, were so incensed they took the Dobsons all the way to the highest court in the land.
The firms were quite right to be upset, the Supreme Court agreed, but then it got more complicated. The court hit a stumbling block over the amount of money the firms deserved in damages.
The issue was that the judges couldn't determine precisely how valuable design was when compared with everything else that goes into making a nice carpet. A lovely design on a poor quality rug wouldn't sell, after all.
And so it meant the companies got just six cents each. Which, even back then, was pitiful. Nominal damages.
This caught the eye of Connecticut senator Orville Platt who, pressured by worried carpet makers, lobbied Congress to amend the Patent Act to make sure design patents were given more weight. By 1887, those changes were written into law. 

iPhone row

Senator Platt was looking to protect the interests of a thriving local industry - and he certainly achieved that. 
But he also put in place the framework that means, 129 years on, Samsung and Apple find themselves arguing over the very same principle. 
In 2011 Apple accused Samsung of being the Dobson brothers of the smartphone world, pinching three bits of iPhone design and using them in several Samsung devices.
Steve Jobs holding first iPhoneImage copyrightGETTY IMAGES
Image captionApple successfully argued that Samsung stole elements of the iPhone design
Specifically, Apple argued that Samsung copied the device's round corners, its bezel, and the app grid of icons when the phone is switched on.
Last year a court agreed with Apple, and so the amendment backed by carpet saviour Senator Platt was put into play. 
The amendment that said if a company is found to have infringed a design patent, it must pay out all of the profit it made in damages or $250, whichever amount is greater.
It'll come as no surprise that Samsung had to do the former. The profit on the devices was deemed to be $548m (£362m), and in December the court ordered Samsung to pay that amount to Apple in full, which it did. But Samsung now feels it should be given back at least $399m.

Form over function

Several thousand cases are referred to the Supreme Court of the United States every year, but it actually only hears fewer than 100. The cases are picked carefully and as a last resort - if there is no acceptable precedent in law, that's when the Supreme Court, or SCOTUS, if you will, steps in.
Clearly, the decision over the complexity of carpet won't cut it in today's modern world. It didn't even cut it in 1885.
Apple carrier bagImage copyrightGETTY IMAGES
Image captionSamsung is hoping to reduce the damages by several hundred million
And so the judges have taken this on to set a new precedent over punishment for infringing a design patent. It's not considering if Samsung is guilty of copying Apple (it did), but rather how much money Apple is entitled to receive.
The question the judges are essentially asking is: why do people buy a certain phone? Is it because of how it looks, or how it functions?
Samsung says it's mostly the latter, and therefore the damages should be a lot lower as there's an awful lot more work that goes into a phone beyond its aesthetics.
Apple takes the opposite view - it's the iconic design of the iPhone that had if flying off the shelves, it argues, and so if Samsung stole that design then that profit money should surely be Apple's. 

Apple's gamble

We won't know the Supreme Court's decision until June 2017. But speculation among those in the know sides with Samsung in that it makes the most sense that Samsung should pay some damages, but not the entirety of its profit on the device sales.
"That would be the understanding the majority of law professors would advocate for," suggested Prof Andrea Matwyshyn from Northwestern University in Boston.
She said while design of, say, a carpet could be considered the be-all-and-end-all of its success, a smartphone is a far more complex device. Design is important, but not the only factor.
Patent filing for a carpetImage copyrightUS PATENT OFFICE
Image captionOne of the other stolen carpet designs from 1885 - but will Supreme Court update its view on design patents?
Samsung has had support from its technology peers - most notably Facebook and Google parent company Alphabet.
Apple has backing too - Calvin Klein has lent its support, as have Adidas and jewellery maker Tiffany and Co. 
The fact that Apple is pushing for full damages is a strategy that suggests extreme confidence in its ability to stay ahead of the curve in technology, Prof Matwyshyn said.
"It is a corporate decision that should be approached with thoughtfulness and caution, because the future of innovation is always uncertain.
"Tomorrow's devices may bring an unanticipated set of legal challenges.
"It's possible they view their own corporate culture so forward looking that they think it's more likely their designs will be used by others, rather than ever being on the defendant side."

Next steps

Tuesday's hearing will be 90 minutes long - each side will have a chance to put forth its view, and the US Justice Department will also have its say. 
It's expected that the Justice Department's view will be that the law should be interpreted with greater flexibility, with more power given to lower courts to determine whether all of the profit should be awarded as damages.
That should be taken on a case-by-case basis that allows regional court judges to consider how integral certain design features are to the product as a whole. 
If the Supreme Court accepts Samsung's appeal, the matter will be referred down to a federal court to determine what the damages should be - and potentially how cases like this will be dealt with in future.

Apple complains Amazon's US site is selling fake products


Apple

Apple has complained of a "flood" of counterfeit goods masquerading as its products being sold on Amazon.com.
The claim relates to items sold via Amazon's "fulfilment" scheme, whereby third parties list their goods on the retail giant's site, store their inventory in its warehouses and rely on it for deliveries.
Apple warns the alleged fakes are potentially life-threatening.
But it is suing one of the vendors rather than Amazon itself.
The defendant, New York-based Mobile Star LLC, could not be reached for comment and has yet to file its own legal paperwork.
"Mobile Star has been deceiving Apple customers and putting their safety at risk by selling counterfeit power adapters," an Apple spokesman told the BBC.
"They have ignored our repeated requests, so we are taking legal action to get them to stop."
Amazon says it takes such matters seriously.
"Amazon has zero tolerance for the sale of counterfeits on our site," a spokeswoman told the BBC.
"We work closely with manufacturers and brands and pursue wrongdoers aggressively."
Details of the case were first reported by Patently Apple.

Fire risk

Apple said it had bought "well over" 100 iPhone devices, own-brand power adapters and charging cables, and had found almost 90% of them were fakes.
"Unlike genuine Apple products, they are not subjected to industry-standard consumer safety testing and are poorly constructed with inferior or missing components, flawed design and inadequate electrical insulation," it said.
"These counterfeits have the potential to overheat, catch fire and deliver a deadly shock to consumers while in normal use."
Amazon listingImage copyrightAPPLE
Image captionApple's lawyers highlighted this review in which an Amazon shopper had complained of their charger catching fire
It added that customers might be fooled into believing the products were safe because Amazon was perceived to be one of the US's most trustworthy companies.
"Consumers, relying on Amazon.com's reputation, have no reason to suspect the power products they purchased... are anything but genuine."
One blogger who has previously highlighted what he calls "Amazon's fraudulent seller problem" suggested Apple should be more aggressive in its effort to tackle the issue.
"I can certainly see why Apple is suing Mobile Star," wrote John Gruber.
"But why not sue Amazon too?
"This is shameful. I've known for a while never to trust anything merely 'fulfilled by Amazon', but I'm actually surprised that even the 'Apple' branded chargers... are dangerous counterfeits as well."

'Smart' home devices used as weapons in website attack

CCTV camera

Hackers used internet-connected home devices, such as CCTV cameras and printers, to attack popular websites on Friday, security analysts say.
Twitter, Spotify, and Reddit were among the sites taken offline on Friday.
Each uses a company called Dyn, which was the target of the attack, to direct users to its website.
Security analysts now believe the attack used the "internet of things" - web-connected home devices - to launch the assault.
Dyn is a DNS service - an internet "phone book" which directs users to the internet address where the website is stored. Such services are a crucial part of web infrastructure.
On Friday, it came under attack - a distributed denial of service (DDoS) - which relies on thousands of machines sending co-ordinated messages to overwhelm the service.
The "global event" involved "tens of millions" of internet addresses.
Media captionEXPLAINED: What is a DDoS attack?
Security firm Flashpoint said it had confirmed that the attack used "botnets" infected with the "Mirai" malware.
Many of the devices involved come from Chinese manufacturers, with easy-to-guess usernames and passwords that cannot be changed by the user - a vulnerability which the malware exploits.
"Mirai scours the Web for IoT (Internet of Things) devices protected by little more than factory-default usernames and passwords," explained cybersecurity expert Brian Krebs, "and then enlists the devices in attacks that hurl junk traffic at an online target until it can no longer accommodate legitimate visitors or users."
The owner of the device would generally have no way of knowing that it had been compromised to use in an attack, he wrote.
Mr Krebs is intimately familiar with this type of incident, after his website was targeted by a similar assault in September, in one of the biggest web attacks ever seen.
  • Have hackers turned my printer into an offensive weapon?
  • Do smart devices mean dumb security?

Media affected by attack - Leo Kelion, technology desk editor

It has emerged that the BBC's website was also briefly caught up in Friday's attack. The BBC is not a customer of Dyn itself, but it does use third-party services that rely on the domain name system hosting facilities provided by Dyn.
I understand that these include Amazon Web Services - the retail giant's cloud computing division - and Fastly - a San Francisco-based firm that helps optimise page download times.
Both companies have acknowledged being disrupted by the DDoS assault. Only some BBC users, in certain locations, would have experienced problems and they did not last long.
But there are reports that other leading media providers also experienced similar disruption.
It serves as a reminder that despite the internet being a hugely robust communications system, there are still some pinch points that mean a targeted attack can cause widespread damage.

The incidents mark a change in tactics for online attackers.
DDoS attacks are typically aimed at a single website. Friday's attack on Dyn, which acts as a directory service for huge numbers of firms, affected several of the world's most popular websites at once.
The use of internet-connected home devices to send the attacking messages is also a relatively new phenomenon, but may become more common.
The Mirai software used in these attacks was released publicly in September - which means anyone with the skill could build their own attacking botnet.
Smoking toaster imageImage copyrightTHINKSTOCK
Image captionAny number of home devices could be used in such attacks - so long as they're connected to the internet
On social media, many researchers and analysts expressed frustration with the security gap being exploited by attackers.
"Today we answered the question 'what would happen if we connected a vast number of cheap, crummy embedded devices to broadband networks?'" wrote Matthew Green, an assistant professor at the Johns Hopkins Information Security Institute.
Jeff Jarmoc, head of security for global business service Salesforce, pointed out that internet infrastructure is supposed to be more robust.
"In a relatively short time we've taken a system built to resist destruction by nuclear weapons and made it vulnerable to toasters," he tweeted



Dyn is a DNS service - an internet "phone book" which directs users to the internet address where the website is stored. Such services are a crucial part of web infrastructure.
On Friday, it came under attack - a distributed denial of service (DDoS) - which relies on thousands of machines sending co-ordinated messages to overwhelm the service.
The "global event" involved "tens of millions" of internet addresses.
Media captionEXPLAINED: What is a DDoS attack?
Security firm Flashpoint said it had confirmed that the attack used "botnets" infected with the "Mirai" malware.
Many of the devices involved come from Chinese manufacturers, with easy-to-guess usernames and passwords that cannot be changed by the user - a vulnerability which the malware exploits.
"Mirai scours the Web for IoT (Internet of Things) devices protected by little more than factory-default usernames and passwords," explained cybersecurity expert Brian Krebs, "and then enlists the devices in attacks that hurl junk traffic at an online target until it can no longer accommodate legitimate visitors or users."
The owner of the device would generally have no way of knowing that it had been compromised to use in an attack, he wrote.
Mr Krebs is intimately familiar with this type of incident, after his website was targeted by a similar assault in September, in one of the biggest web attacks ever seen.

Media affected by attack - Leo Kelion, technology desk editor

It has emerged that the BBC's website was also briefly caught up in Friday's attack. The BBC is not a customer of Dyn itself, but it does use third-party services that rely on the domain name system hosting facilities provided by Dyn.
I understand that these include Amazon Web Services - the retail giant's cloud computing division - and Fastly - a San Francisco-based firm that helps optimise page download times.
Both companies have acknowledged being disrupted by the DDoS assault. Only some BBC users, in certain locations, would have experienced problems and they did not last long.
But there are reports that other leading media providers also experienced similar disruption.
It serves as a reminder that despite the internet being a hugely robust communications system, there are still some pinch points that mean a targeted attack can cause widespread damage.

The incidents mark a change in tactics for online attackers.
DDoS attacks are typically aimed at a single website. Friday's attack on Dyn, which acts as a directory service for huge numbers of firms, affected several of the world's most popular websites at once.
The use of internet-connected home devices to send the attacking messages is also a relatively new phenomenon, but may become more common.
The Mirai software used in these attacks was released publicly in September - which means anyone with the skill could build their own attacking botnet.
Smoking toaster imageImage copyrightTHINKSTOCK
Image captionAny number of home devices could be used in such attacks - so long as they're connected to the internet
On social media, many researchers and analysts expressed frustration with the security gap being exploited by attackers.
"Today we answered the question 'what would happen if we connected a vast number of cheap, crummy embedded devices to broadband networks?'" wrote Matthew Green, an assistant professor at the Johns Hopkins Information Security Institute.
Jeff Jarmoc, head of security for global business service Salesforce, pointed out that internet infrastructure is supposed to be more robust.
"In a relatively short time we've taken a system built to resist destruction by nuclear weapons and made it vulnerable to toasters," he tweeted

Who Shut Down the Internet Friday?

 Image result for internet shutdown on friday


Cyber experts and intelligence officials told NBC News it was too early to determine who was responsible for the cyber attacks that caused massive internet outages across the U.S. Friday, with some saying their analysis pointed to Russia and others saying it could just be "internet vandalism."
The three "denial of service," or DDoS, attacks, hit at about 7 a.m. , noon and 4 p.m. Eastern Time, knocking out such websites as Vox, Twitter, Spotify, Amazon, PayPal and Reddit.
The attacks used the "internet of things," meaning "smart" household appliances like DVRs, routers, printers and cameras that are linked to the web, to create "botnets" that overloaded websites by sending them more than 150,000 requests for information per second.
Officials said the attacks were largely aimed at internet infrastructure linked to one company rather than specific websites. Nearly all of those attacked were clients of Dyn, a firm that provides domain name system services and other internet infrastructure services. However, according to one official, there was also targeting of some individual websites.
"We have begun monitoring and mitigating a DDoS attack against our Dyn Managed (Domain Name System) infrastructure," Dyn said on its website at 11:52 a.m. ET. "Our engineers are continuing to work on mitigating this issue."
A senior intelligence official told NBC News that the current government assessment is that the attacks were a "classic case of internet vandalism," and did not appear to be state-sponsored or directed.
But two other senior intelligence officials told NBC News that while forensics on the attacks are far from complete, initial analysis points to the attacks being "Russian in origin" -- based on the methods and magnitude.
The Russian intelligence agency known as FSB enlisted Russian cybercriminals in 2008 to mount a similar cyberattack on the Republic of Georgia. Eight years later, there are far more devices hooked up to the internet, and available to be used in bot-nets for DDoS attacks.
"This is the Georgia attack on steroids," said an intelligence official. South Korea, India, Spain, Brazil and the U.K. also experienced major outages Friday.

Is It Really Russians?

Shawn Henry, chief security officer of the cybersecurity firm Crowdstrike, expressed caution about blaming Russians. He said many possible explanations were circulating around the internet Friday. He didn't rule out Russian involvement, but said it was "very, very early" to determine responsibility.
Henry said what was most ominous about the attacks is that they reveal that the U.S. is seriously vulnerable to cyber attack: "This demonstrates the fragility of the network and infrastructure."
Several internet experts told NBC News that they didn't see any Russian fingerprints.
Andrew Komarov of InfoArmor told NBC News he didn't see any sign of Russian involvement at all, whether state or private. He noted that the botnet used in the attack, "Mirai," was developed by an English speaker and that he had found no link between "Mirai" and the Russians, who have their own much more sophisticated methods.
He said the attacks seemed more consistent with the methods used by the hacking group known as Lizard Squad, two of whose members, both teens, were arrested earlier this month in the U.S. and the Netherlands and charged in connection with DDoS attacks.
Said Komarov, "We have some context, that because of similar victims, using Dyn, and also tactics, tools and procedures by threat actors, it may be a revenge for the past arrests of DDoS'ers in the underground, happened several weeks ago."
Dmitri Alperovitch of Crowdstrike also expressed doubt about a link to the Russian government, and speculated the attacks might have to do with a recent interview that cybersecurity expert Brian Krebs did with Dyn mentioning Russian organized crime. Alperovitch said use of a botnet bears the hallmark of a criminal rather than state attack, and the target may simply have been Dyn, not the U.S.
Flashpoint, a private cybersecurity and intelligence firm, noted that the Krebs site was attacked in September by a Mirai botnet, and the Krebs site was among those attacked Friday. The hacker who attacked Krebs in September released the source code on the web earlier this month, and hackers have copied the code to create their own botnets.
Flashpoint said it had concluded that the Friday attacks were not mounted by hacktivists, a political group or a state actor.
A senior federal law enforcement official confirmed that the attacks used a botnet exploiting the internet of things, and that the FBI is investigating. The official said federal law enforcement had not yet made a determination about who launched the attack and why.

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