Post-trial Apple vs. Samsung Journalism

I read a new post from Marco this weekend about post-trial journalism and I was appalled. Ihnatko, of all people, wrote one of those idiotic posts that Roughly Drafted took on in a more general essay but didn’t cite specifically.

The Sun-Times column is embarrassing. Everyone knows that Andy can do a lot better than this. He has a good record; I can vouch for him. I’ve been reading him since before the iPhone even came out. When the iPad was introduced, he was one of the three journalists in the world who got a loaner for the week prior to its introduction. I was lucky enough to watch a live podcast that he did the moment the news blackout ended and the day prior to its first going on sale.

That’s one reason why this column is so appalling. Frankly, I think that he can get off with a suspended sentence if he pleads Temporary Insanity and gets Gruber as his probation officer.

Perhaps it was just the heat; this summer has been brutal and we’re going into the hottest month of the year. I’m confident that Gruber can get us through the summer without another outburst like this.

That’s my defense.

What Really Happened

Lookit, the deal is that Samsung’s lawyers just got skunked. When they get cornered, they get defensive. This is what lawyers do: When they’re scared, they just throw up more FUD. It’s instinct. Its similar to why some dogs chase cars in traffic. The dogs are just being dogs; no one is expecting them to think. The same is true of lawyers.

The Biggest Losers are the Consumers

Talk about link bait! It’s preposterous for Samsung’s dogs to say they are fighting for consumers! Give me a break! They are fighting for Samsung’s commercial interests. That’s what lawyers always do. Apple’s dogs were no better. In open court, Judge Koh asked Apple’s lead dog whether he was on crack.

In another context, what Samsung did is called squatting. They can’t move onto someone else’s land simply because they like it and it already has a nice house on it. Under our rules of law, they need to buy their own plot of land and build their own house. If they do a good job, there’s no reason that their house can’t fetch a better price on the open market than Apple’s. If they really have their heart set Apple’s house, then they can negotiate a license with the property owners. That license comes at a price.

Instead, they took a chance and hoped they wouldn’t get caught. But that doesn’t mean that the (hypothetical) license is free. It only means that wasn’t paid for. It’s exactly like some kid who copies all his mp3’s off his friends. Sure he’s “saving” money by not buying his music off iTunes (or equivalent), but that “saving” is only an illusion.

It’s exactly like an independent musician who requests each listener to pay the going rate for her songs. No one in his right mind would ever say that the artist is being mean to the kid. The artist is exercising her right to be paid for her work.

Just because mp3’s are not copy-protected doesn’t mean that they are free. They are not. You can go online and find out what the market value is.

The same is true of Android. Just because Google gives away the framework doesn’t mean that Android is actually free. If a vendor decides to go to market with features that are already owned by others, they need to be sure that they have paid all their fees.

Samsung just got caught, so now they not only have to pay those license fees that they owed all along but also any penalties that Judge Koh decides. No, it isn’t true that mean old Apple is now “costing” Samsung customers money because they’re the neighborhood bully.

Moving On

After Samsung settles this, they are welcome to use an OS of their own design or license a smartphone OS from a vendor who is committed to obeying US law. Microsoft was quick to pop up and offer a suggestion of their own.

There’s all kinds of opportunities that are open to them, but Samsung elected to ignore most of the possibilites because copying Apple was more convenient and they thought they could get away with it.

What they should have kept in mind is that Apple makes too few products. There’s a ton of features that Apple elects not to offer. Hell, Apple makes a grand total of one (1) basic design of cell phone and one (1) tablet. If Samsung can’t think of any other designs, its their fault.

If they are serious about offering more choices for consumers, they are free to go ahead and do so. Its Samsung who elected to slavishly copy patented designs and risk getting getting caught. What kind of consumer choice is that? By that logic, the “choice” is that consumers can either buy a real iPhone or buy Samsung’s knock off of the same basic design? That’s the attitude that is the real limit in consumer choices.

For example, the blogger for FOSS Patents says he uses an android because he prefers a cell phone that has a much larger screen than that one size that Apple makes. Android successfully won his business by selling a screen size that Apple doesn’t make.

Rather than crying like a sore loser, Samsung ought to focus on designs that aren’t already patented.

After the case, a few of the jurors were tracked down and interviewed. One of them was asked about whether the jury knew how important this case was.

“I realized that’s a big deal if Samsung can’t sell those phones,” Ilagan said. “But I’m sure Samsung can recover and do their own designs. There are other ways to design a phone. What was happening was that the appearance [of Samsung’s phone] was their downfall. You copied the appearance.... Nokia is still selling phones. BlackBerry is selling phones. Those phones aren’t infringing. There are alternatives out there.”

That’s the ticket. Go ahead, make Tim Cook’s day: Offer meaningful choices to consumers that Apple doesn’t provide. He’ll be a happy man when you earn some of their market share with a feature that they don’t have.

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