Essentially the MPAA wants to stop you from analog-copying stuff that is transmitted to your home, perhaps as pay-per-view, before it is released on (the proven as insecure) digital DVD format.

Some bodies argue that this is a fear that has no grounds in reality: "in the complete absence of evidence, there is no reason to believe that additional, costly, restrictive technologies are needed." TiVo and the Digital Transition Licensing Administrator also think SOC places too much control in the studio's hands, and messes with already in-place industry standards.

But the MPAA's position is clear, designed to protect revenue of the studios: "Distribution over insecure outputs would facilitate the illegal copying and redistribution of this high value content, causing untold damage to the DVD and other 'downstream' markets." The MPAA also makes an interesting twist in the argument, alleging that the fact that currently very few movies are released to broadcast before hitting DVD is "convincing evidence that the analog hole is an impediment to the early window release of high-value content."

So the people who are trying to protect the studios from piracy are saying the threat of analog copying is preventing movies getting to the TV fast... when as soon as a DVD is released, pirated copies hit the intertubes almost straight away. I am confused: does the movie exist for the audience, or the audience exist for the movie? The MPAA's not sure either, but seems to want even more control over the films we all watch. [Ars Technica via CrunchGear]

One thing he unfortunately doesn't take a position on is the disturbing trend of data caps from most of the major ISPs, which are technically net neutral, and satisfy his current mantra of full disclosure (i.e., your ISP can rape you, as long as they tell you first). Om has a pretty dire (but probably correct) take on Martin's position (or lack thereof).

We might see some rules over on the cable side to force them to open a bit more, if they don't do it of their own volition though:

"The cable operators won’t license a device that integrates Internet video content with their content,” he said. “I’m saying that’s wrong, and I am trying to get the other commissioners to address it.”

He hates the cable industry so, so much, and I kind of love him for it (even if it is a smokescreen). If you care at all about the future of the internet, cable or wireless, read the interview, there's a lot there. [Bits]

FiOS, as you might know, is Verizon's fiber optic television service (which is now officially invading all of NYC). It's not full-fledged IPTV yet (since it's not delivered entirely as data packets, as I learned a few weeks ago), but Verizon is implementing a lot of the same feature set that IPTV makes available.

Version 1.5 was mostly about meeting regulatory specifications, so they're just now popping in the big features. The onscreen interactivity feature set is a lot like what cable and IPTV are doing—a pop-up will offer bonus or expanded content like clips or info—and it'll debut with a bunch of NBC Olympics interactive content, which will be the Verizon framework's first major test. Essentially any network can dump content into Verizon's framework, and voila, interactive content ahoy.

FiOS TV 1.6 also adds in RSS feeds from content partners, providing live info like traffic, weather and horoscopes (apparently their test groups really wanted them). Unfortunately, right now, you can't add in your own feeds (like Giz) but the framework is there to do it in the future. Currently, weather and traffic are the ones you'll actually check out. One weird quirk is that you have to pause whatever you're watching before you start reading feeds—you can't pause TV while you're reading.

Starting with 1.6, you'll be able to stream two HD streams to multiple rooms in the house, even with the current boxes—Verizon's goal is to have feature parity across all hardware. But one of the more awesome, though subtle, features is the ability to pause a channel, swap to another one, pause it, then go back—so you could juggle two football games or Heroes and football, whatever. They've also added in filters, so you can have the menu show you just your HD channels, just family channels or just movies, to cut down on the amount of crap you have to scroll through. A fully personalized setup like AT&T showed off is probably a version or two away, though. Scheduling recording by web and phone is in the works too, though it'll start out as a premium feature set and trickle down.

What Verizon is doing that's somewhat unique is a hidden form of social networking. There's a new section called "What's Hot on FiOS." It tells you the top five most popular shows in your area at that second, live. So if you don't know what to watch, you can just check out what everyone else is. This works for On Demand stuff too.

And now for the future stuff (which is actually built into the 1.6 update, but it's hidden, so if you hacked your box....): Integrated web video, of course. YouTube, Veoh, Break and Blip.TV for now. It's sectioned off in the menu, so people don't expect to be blown by awesome vid quality, I'm told. The setup actually uses your PC as a proxy, so you actually have to have it turned on to watch web video. But you can also stream pretty much any video, any codec flavor on the fly, from your PC to your TV. The search engine isn't that great yet, and typing is annoying, but it's nice to see this stuff integrated and easily pushed to your TV. If trials all go well, you'll see this stuff on boxes as early as spring 2009. If not, well, things get murkier.

The fact that most of this stuff will be in people's houses by the end of this year does seem to put FiOS ahead in the feature war, even though Time Warner actually has a bunch of its suped-up tru2way boxes in the wild. Either way, it proves that TV as we know it is going to change, at least a little bit, by letting in stuff from outside the garden, no matter who your provider is.

The email came from Frank Eliason, whom the NY Times has a great story on this morning. He's a Comcast rep who constantly monitors blogs, forums, Twitter, Facebook comments and everything in between for gripes about Comcast, then responds directly to the complainer to "clear the air." He's done this well over a thousand times in the 7 months he's been on the job.

Direct one-on-one service sure beats spending days of your life on hold with support only to find there's no cable being run to your house, and definitely no hard feelings for Frank, who is just doing his job and doing it well it sounds like, but leave it to Comcast to instill what could be a good thing with such overt Orwellian creepiness. [New York Times]

Granted, when you experience the kind of growth Comcast has in recent years, I can understand how customer service might drop off. But what happened here was pure ignorance. In fact, it seems that they are going out of their way to irritate their own customers in some cases. So my question is: when will customers start seeing the benefits of the "billions of dollars" Comcast claims to have poured into improving their network, customer service and sales operations? [Washington Post via Fark]

[TastyBooze; Thanks, Blakeley!]

Tru2way is actually the brand name for a common Java-based middleware stack and software platform (aka OpenCable, aka OCAP) that'll be supported across the entire cable industry (all the majors like Comcast and Time Warner others are way onboard). Hardware comes into play by way of CableCARD, the little card you can plug into your TiVo (or whatever) to get cable on it without a set-top box. It decrypts the encrypted signal the cable company sends out.

Up until now CableCARD has had some problems: It was meant to replace your set-top box, but besides crappy industry support, it was missing stuff like the programming guide and VOD. Tru2way aims to fulfill the original promise. Not only will tru2way be in half of all actual cable boxes by 2013 according to ABI Research—Time Warner already has a million boxes out there—TV manufacturers like Panny, Sammy and Sony are building tru2way sets that won't need cable boxes. (ABI principal analyst Steve Wilson tells us that Sony's agreement is particularly important in pushing tru2way forward, since it got the cable operators to agree to the same set of specs and common goals, like a full rollout by 2009.) So tru2way isn't vaporware—it's not a butter smooth road, but you will probably see it fairly soon(ish).

The biggest tru2way advantage for consumers is that the box becomes an option based on the capability of your TV. You'll finally get the program guide, VOD and other advanced features with a tru2way TV, without a black behemoth next to it. And, as is implied in the name, it allows two-way communication, something older CableCARD devices couldn't do. That means cable operators can offer a lot of the same interactive features as AT&T's U-verse IPTV service. Since it's a common platform for all cable operators, a developer's app that works for Time Warner will work for Comcast and vice versa, no messy porting required. And it's just Java, so there's not much of a learning curve, paving the way for lots of innovative apps (if the cable co. allows them), not to mention the obvious like local weather widgets, voting, news, RSS. ABI's Steve Wilson also mentioned an on-TV caller ID app similar to AT&T's.

The major catch is that this requires new hardware, either a new box (from the cable company) or a new TV (from you wife's pension fund). Cable dudes are going to cycle to the new boxes gradually, not replace them all at once, and that will take some time. Also, don't expect these wonderful new services to be wonderfully free, Wilson tells us. The super-sweet stuff is going to be part of higher-tiered services that are probably gonna cost you. And the boxes themselves might be pricey. There will lower levels with more basic interactivity, but those cheap-o boxes will have a slower rollout. (Though it'll be hastier in markets invaded by FiOS and U-verse according to Wilson.)

So, while CableCARD and tru2way aren't going to invade the country overnight, the way most people watch TV—even if they actually still sit on a couch in front of an actual boob tube—is going to change significantly in the next couple of years. But it's not like they have much of a choice anymore. Even now, people (mostly young whippersnappers) are changing the way they watch TV, whether or not the cable companies and telecoms go along. Time to evolve... or die.

There's a chance you won't, actually, see this TV in a few years, at least served up from AT&T. Only 379,000 subscribers are currently hooked up to U-Verse TV, and it's not available to a whole lot more than that. Rollout is slow. But listening to Peter Hill, VP of voice and converged services, talk about what the company is working on for U-verse, you'd never know that everything he was showing me was just for a tiny, privileged sliver of TV viewers. (BTW, for a great hands-on cable vs. U-verse review to see what they're getting, check out this piece.)

The first thing I spot—and ask about—when I walk in is the Xbox 360 on the shelf, a ghostly reminder of the promise of a ubiquitous IPTV box. The status? Microsoft and AT&T have to "come to terms" on it. Whatever that means, but the shaky laughter dotting our exchange implies you'll probably never see it in the States. On to the real show.

Integration is the key to AT&T's IPTV vision—integration with the internet, with your home network and media, integration with AT&T's services. But that doesn't mean TV itself is taking a backseat. Whole home DVR is arriving soon, so that one DVR box will stream content to any and every TV on the network (currently, only the TV directly jacked into the DVR can play back DVR content). You'll totally be able to pause something in one room, and pick it back up in another. With whole-home DVR, the box will be able to simultaneously stream eight feeds to every TV in your house: Three hi-def plus one standard-def stream from the DVR, plus 2 HD and 2 SD streams of live programming. All those TVs are getting all that content from one box. (For the nerds, each HD stream is encoded in MPEG-4, running at a variable bit rate that hovers around 6.5Mbps. The U-verse pipe is built on a 25Mbps profile, which is divvied up by high-end QoS for TV and your internet.)

Next, we go into some of the media sharing stuff, which probably looks familiar to anyone with an Xbox 360 or media extender since U-Verse uses Microsoft's IPTV platform. Music, movies, pictures, streamed to your TV from a standard Windows Vista or Media Center PC on the network—basic, but nice, since this is all just pumping into your set-top box. They've also got TVersity running off their network, which basically will stream anything to any device with a web browser, be it PSP or iPhone. It's running over Wi-Fi and it's actually damn snappy. I'm not really sure how this fits into the IPTV platform, other than their vision of a totally networked home.

All of this is "six to nine months" ahead of the field now. So, you could expect this stuff in the next year, though it's not officially announced yet. It's all about mainstreaming media streaming and sharing—a baby step, but probably necessarily to get, say, your parents ready for what's coming after it. This is when Peter pops on the "ultra-bleeding edge box" though he warns me none of this is actually guaranteed to become a TV reality.

Fire up the box. Welcome to Peter's favorites. Yep, like Sezmi, everyone gets their own personalized TV setup, with recommendations, favorites, etc. You can also log in and control the set-top box from the iPhone, like a sweet multi-touch remote. It's running over Wi-Fi and it's as responsive as any other remote control. But you know, sexier. An app for streaming to the iPhone? Not yet, I'm told, since there are "certain areas of the iPhone" where "Apple is keeping the experience..." "Controlled?" I volunteered.

It's a good transition to the more internet-y stuff they've got going on. Integrated RSS feeds—you can read Giz on your TV and have it not look like crap! Video RSS feeds are where it's at though, like a feed of CNN clips that constantly refreshes. It's like Headline News, without the waiting. Course, it can also pull in YouTube, though I'm more interested in Hulu.

Here's where AT&T benefits from being AT&T here, with your phone jacked into your set-top box. Maybe more "cool" than critical. A message asking for a video share call from a local Atlanta 404 number appears on the screen. Caller ID on the TV. We smack yes, and we're looking through the eyes of an LG Glimmer on our TV. Yeah, it looks like shit on the 60-inch DLP set, but it really works. Next, I call Peter's cell and leave a voice mail. A few seconds later, we're informed by the TV we've got a new voicemail waiting, so we flip over to a list of incoming calls. We can remotely check out the voicemail or add the contact to our address book.

The finale: It's basically Twitter TV. You jump into a chat room with your friends (or invite them) and you can bleat out IMs that are collected on a timeline as you watch Leonidas atomically kick effeminate Persians into bottomless pits. And lest you were worried about text-typing via a crappy remote control, I actually used an iPhone to input the text. Later you can go back and scour the conversation timeline like regular IM, looking for a nugget of insight that might've accidentally slipped out during the orgy of violence (or whatever else you and your friends are simultaneously watching). BTW, the cheesy avatars will be updated to look less like late-'90s Messenger, I'm told.

While these are all, by themselves, just little bits of coolness, taken together, it is a shift from the mostly passive way we watch TV. We actively time and place-shift now, but once we're plopped in front of the screen, input from us stops, despite decades of prediction that TV would become more and more interactive. U-Verse is not wholly revolutionary, but it's a stride toward true TV 2.0, with content from multiple sources, fueled by the internet. TV's got to do something, after all—there's less and less reason to be drawn to that particular idiot box, when there are so many boxes out there for so many different kinds of idiots. Of course, cable's got its own ideas about the future of TV, and soon we'll be looking into that too.

Thanks tipster!

The reasons behind the rush to curb heavy data users, whether or not they're asshole pirates, are simultaneously simple and complex, but one of the major reasons is that content flowing over the pipes increasingly competes with cable's TV offerings. Literally in Comcast's case, since it needs as much bandwidth as it can get to deliver HD content. We're keeping our eyes peeled for more about its rumored plan to test data caps, much like Time Warner is doing—it's increasingly looking like the future of broadband in the US. [Threat Level]

Designed to thwart hardcore data slurpers (and soon HD video downloads that'll in time seriously compete with cable's offerings), consumption-based billing throws us back to the days AOL—sure, it's more data, but the principle is effectively the same, and it'll to regular consumers sooner than the cable industry would have you believe, especially once online video actually gets rolling. While Time Warner emphasized to us it's just a test, we don't expect this to stay in Texas for long, especially with Comcast mulling over similar plans. Long live internet in the US. [Yahoo]

Sony Electronics and Major U.S. Cable Operators Negotiate National "Two-Way" Plug and Play Solution

Agreement Establishes Platform for Retail Devices to Receive Interactive Cable Services

WASHINGTON, DC, May 27, 2008 - Sony Electronics and major cable operators which together pass over 105 million U.S. homes have negotiated and signed an agreement that will enable consumers to purchase innovative "two-way" digital televisions and other devices that can receive interactive digital and high-definition video services without a set-top box, Sony and the National Cable & Telecommunications Association (NCTA) announced today. The terms of the agreement are embodied in a binding Memorandum of Understanding (MOU) negotiated by Sony Electronics and the six largest cable companies - Comcast, Time Warner Cable, Cox, Charter, Cablevision and Bright House Networks - which serve more than 82 percent of all U.S. cable subscribers.

Other consumer electronics companies will be beneficiaries of this new national two-way "plug-and-play" platform and have also been invited to formally join the MOU.

This negotiated industry agreement establishes the fundamentals for a competitive retail market for "two-way" digital cable-ready devices. It addresses how such products will be brought to market with interactive services like video-on-demand, digital video recording and interactive programming guides.

In addition, the agreement makes it clear that consumers will be able to enjoy a choice of differentiated two-way products at retail and through cable operators from a variety of consumer electronics and information technology manufacturers. The agreement includes safeguards to facilitate the development of a robust, two-way retail market and to ensure that cable operators can continue to develop and offer new competitive services.

Representative Rick Boucher (D-VA), a senior Member of the House Energy and Commerce Committee and one of the leading advocates in Congress for new technology and consumer freedoms said: "I congratulate Sony and the major cable operators for achieving consensus on a set of core principles that will speed the introduction of new two-way plug-and-play devices." Representative Boucher added: "With this groundbreaking compromise, these industry-leading companies and other major cable companies will ensure that consumers will have broader access to innovative competitive cable ready navigation devices from commercial retailers and will have expanded options to enjoy cable programming, including video on demand and other interactive programming options."

As part of the agreement, the parties will adopt: the Java-based "tru2way" solution as the national interactive "plug-and-play" standard; new streamlined technology licenses; and new ways for content providers, consumer electronics manufacturers, information technology companies and cable operators to cooperate in evolving the tru2way technology at Cable Television Laboratories (CableLabs), the cable industry's research and development consortium.

The agreement will encourage the development and distribution of interactive and high-value digital content. Key elements of the agreement relate to the deployment of a platform for "write once, run anywhere" applications, and to the incorporation of secure digital interfaces that protect consumers' home recording rights along with copyright owners' rights to secure their digital content. Detailed terms of the MOU have not yet been released, while other potential signatories complete their review of the document.

"This marketplace agreement is good news for consumers," said Edgar Tu, Sony Electronics' Senior Vice President of TV Operations of America. "A national plug-and-play digital cable standard for interactive TV receivers, recorders and other products that is transferable and viable wherever you live is ideal for today's mobile society."

"This is a landmark agreement which will provide a national, open and interactive platform resulting in more choices of services and products for consumers," said Kyle McSlarrow, NCTA President & CEO.

"We are pleased that this technical challenge has been addressed through a voluntary, private-sector solution," said Consumer Electronics Association President and CEO Gary Shapiro. "We look forward to working with our cable colleagues to ensure Americans across the country have access to high value cable content while using the equipment of their choosing." [Sony, NCTA]

• The Green Monster, Boston's left field wall at Fenway Park
• The Flying Spaghetti Monster
• Monster Trucks
• A town in the Netherlands
• Hillary Clinton
• The Cookie Monster
• Giant Monster Movies
• The Monsters of Rock Tour
• Monster Sushi, a sushi chain in NY
• The dance The Monster Mash
• Everybody named "Noel Lee"
• Ugly people who look like monsters
• The Loch Ness Monster
• Unreal Tournament for their M-M-M-M-M-Monster kill
• This wikipedia entry for monster
• Charlize Theron for acting in the movie called Monster
• The cartoon show Aaahh!!! Real Monsters
• An arrangement of matter that has maximum disorder
• The Ducati Monster motorcycle
• The cataloging app Delicious Library's creator
• Monster Park, the ballpark in SF, even though they're the ones who bought out the name

Monster's Noel Lee responded back in April to then-recent criticism about their perceived litigiousness.

This time it's Monster Mini Golf, an actual mom-and-pop operation that was started four years ago by a woman and her husband. The chain has been successful enough to spread to 22 locations. MSNBC says that the "owner" of Monster Cable, which is Noel Lee (their "Chief Monster") says the public will be confused by the similarity of the names. Last time we checked, the public wasn't quite as confused as the people at Monster Cable who decided to sue. [MSNBC]

Oh look, it's a list of things Monster Cable has yet to sue!

Apparently, Monster Cable's Noel Lee issued a response to some negative publicity they got back in April (around the time Monster issued Blue Jeans Cable with a C&D). Noel says they didn't actually sue ballparks or other random places because their names were too similar, they just file objections to trademarks with the USPTO. Noel blames federal trademark law saying that they're required to "police [their] marks or [they] will lose them," and that they "didn't make these rules." [Audioholics]

The Internet Freedom and Nondiscrimination Act is sponsored by Michigan Democratic Representative John Conyers (who happens to be chairman of the House Judiciary Committee) along with Silicon Valley Democratic Rep. Zoe Lofgren. Conyers' premise:

"The Internet was designed without centralized control, without gatekeepers for content and services. If we allow companies with monopoly or duopoly power to control how the Internet operates, network providers could have the power to choose what content is available."

The opponents specifically argue that new competition in broadband networks is what keeps ISPs honest in their dealings with consumers. Michigan Republican Representative Fred Upton is quoted as saying, "Our hands-off policy is working." From what we've seen there, Fred, you are either all wrong, mostly wrong or at least partially wrong. [IDG in NY Times via Slashdot]

While AT&T uses twisted pair cable to get to your front door, and Comcast uses coax, once they're inside, the signals share cabling. This means if you use U-Verse TV and Comcast broadband, and "feedback" from the U-Verse system spills upstream, it can affect the service of everyone connected to the same Comcast node. Comcast alleges that poor installation by U-Verse engineers is letting these signals leak via poor filters or systems using similar frequencies, and that AT&T has not motivated itself to fix the problem.

Unsurprisingly, AT&T is highly skeptical that U-Verse is the source of the issue. This is AT&T's position on the case: the "suit lacks merit," said a spokesperson. It's a bit of dirty work to try to keep them out of the Illinois cable TV market and AT&T will keep trying "to bring Illinois consumers a new choice for video services as we have in other states and will oppose Comcast's efforts to thwart that."

Comcast, however, is taking a holier-than-thou attitude: "AT&T should act like a good corporate citizen and work with Comcast to resolve this privately." Because Comcast supposedly behaves like that themselves, yes? [Arstechnica]

• "Content available on cable networks is changing all the time. New services are added, some are redesigned and others are removed."

• "SDV technology is designed to expand the range of services offered by cable operators, not reduce them."

• "Many CE companies chose to implement receivers that lack the necessary circuitry to provide a full two-way cable experience with the CableCard."

• "No product was ever originally designed to work with this new Tuning Adaptor including the existing Tivo UDPC products...Since consumer products don't use Microsoft Windows, they don't have plug-in drivers. Instead a new firmware update is needed to include the necessary driver controls to interact with this new external device. Makers of any existing UDCPs that already have a USB port (there are many) are just as able to provide new firmware as Tivo, if they chose to do so."

• "Consumers should look for products identified as tru2way to ensure they will be able to get all the new and advanced services their digital cable systems can deliver."

Last we checked, Panasonic was the only one with a tru2way TV pegged to an actual shipdate, and Comcast was the only cable company even talking about implementing it this year, but again, hopefully we'll hear a lot more about this come the NCTA's Cable Show on May 18-20. We certainly look forward to hearing good news from CableLabs (and we're sure they look forward to sharing some). [CableLabs; Original HD Guru Story]

Cablevision and Time Warner Cable say that there is a CableLabs fix, a USB-based dongle that will enable the upstream communication required for SDV. But Merson says makers of CableCard TV sets (fewer and farther between these days) can't make use of any USB dongles. TiVo, on the other hand, said in December it would release the SDV-compatible dongle at an unspecified time this year, though they're not talking any more about it at the current time.

It's a lot of cable-tech mumbo jumbo, but if it means losing channels (and not getting any kind of payback for the loss, says Merson), well, it's a crisis. Fortunately, the big industry Cable Show will be happening soon, so let's make sure they have something to talk about. Check with your provider, and let us know if you're experiencing any SDV-related shafting on your end. [HD Guru]

RE: Your letter, received April Fools' Day Dear Monster Lawyers, Let me begin by stating, without equivocation, that I have no interest whatsoever in infringing upon any intellectual property belonging to Monster Cable. Indeed, the less my customers think my products resemble Monster's, in form or in function, the better.

I am evaluating your claim that the connectors on certain Tartan brand products infringe Monster's design patents and trademarks. However, the information supplied with your letter is plainly inadequate to support a claim of infringement and so I am writing to you to ask for further information and clarification regarding your claims.

I will begin by addressing your trademark/trade dress claim. You have referred to two trademark registrations, and have attached some printouts from the USPTO system but the depiction of the marks on the drawings provided is small and indistinct, making it difficult to determine exactly what the alleged resemblance is, and I need further information from you.

First, I need legible, scale drawings of the marks, preferably with dimensions shown on the drawing. To the extent that drawings are inadequate to show the nature of materials, finishes, print legends, colors and the like, I will also need examples of each of Monster Cable's actual uses of these marks in commerce; actual physical examples would be best, but photographic reproductions might do. As you will understand, these considerations are essential to any claim arising out of trade dress, as you are alleging in essence that there is a resemblance sufficient to cause confusion over the identity or origin of the goods, and no mere line-drawing can suffice.

Second, I will need copies of the trademark applications and any correspondence between the applicant and the USPTO in support of the applications.

Third, you have not identified the Monster Cable products in question, in actual use and distribution in commerce, whose trade dress you allege has been appropriated. I have reviewed Monster Cable's online materials and have examined connectors on various Monster Cable assemblies in local retail outlets and am unable to determine which, if any, of these are thought by Monster to represent use of these particular marks. I am also unable to determine from this review whether Monster Cable actually offers any product for sale to which the Tartan connectors are alleged to be particularly similar. My own sense of it, in looking at the connectors, has been that there is no similarity between the Tartan connectors and any of the many Monster Cable connectors beyond the general functional and conventional characteristics which all or nearly all solder-cup, mechanical-assembly, barrel-style RCA-type connectors share. It may be that there is some line of products to which you have intended to refer but which I have not found in Monster Cable's marketing materials or displays; but if so, you will need to show me specifically what product it is, and you will need to call to my attention the specific aspects of the connector design which you contend constitute unique Monster Cable trade dress, what the associated secondary meaning of those aspects of the trade dress is, and in what manner and by what characteristics you allege that this trade dress has been appropriated.

Fourth, if the dimensional characteristics of the connector as used in commerce vary from the dimensions of the scale drawing of your mark, I will need a proper scale drawing, with dimensions, of each version of the actual connector as used in commerce, as well as photographs of the connectors showing actual in-use finishes. If there is more than one such connector design in actual use by Monster Cable as to which appropriation of trade dress is alleged, of course, I will require this information for each and every such design.

On the basis of what I have seen, both in the USPTO documents you have sent and the actual appearance
of Monster Cable connectors which I have observed in use in commerce, it does not appear to me that Monster Cable is in a position to advance a nonfrivolous claim for infringement of these marks. There simply is not sufficient resemblance between the Tartan connectors and any mark or any example of the marks' actual use that I can find to support such a claim. But if you have further information for me on that point, you are welcome to submit it.

You have also supplied me with partial documentation on five design patents which you claim these connectors infringe. I will begin by observing, first, that the five design patents are so very much unlike one another that it is very hard to imagine that any product could actually infringe more than one of them at a time; anything close enough to one of them to be deemed an infringement would, by that fact alone, be too dissimilar from the other four. The dissimilarity of the Tartan connector from each of them is readily evident.

I should add that, for the purpose of this letter, I am assuming that these patents are valid. This is in no way a concession of the point. In fact, this is a very significant and likely inaccurate assumption, and you should expect the patentability of these designs to be under attack if you commence an action for infringement.

The fact that you have presented me with five completely distinct design patents, I have to say, gives me pause. I would go over them and detail the differences between the Tartan connectors and those shown in the patents, but if you are taking the position that it appears you are taking, there might be very little point in discussing it with you. Take, for example, the patent you mark as Exhibit B. The connector shown there is substantially different from the Tartan connectors in every respect, unless one ignores design specifics and focuses on the core attributes of the connector which are dictated by function. If your view of Exhibit B is that it is to be construed broadly enough as to encompass the Tartan connector, it is very hard to imagine that there is such a thing as a solder-assembly style RCA plug which is not similarly, in your view, encompassed by this patent. And, needless to say, it is very hard to imagine that any court would ever adopt such a view of the patent's scope; if you file on this sort of basis, you are in Rule 11 frivolous-claim territory.

I will point out, though you are no doubt already well aware, that the gross morphology of the RCA plug is pretty well dictated by function. RCA plugs intended for soldering and assembly have certain attributes in common; their diameter is constrained by the need for the shell to fit over an internal set of solder points and cable clamp, and their length by the need to provide some room for cable end prep and attachment; they are generally radially symmetrical along the anterior/posterior axis owing to the need to accommodate both a round-profile cable and the round-profile RCA socket; the connector end is constrained by the standard dimensions of the RCA socket, and by the need, as the socket provides for no bayonet or screw attachment, to provide sufficient tension on insertion to maintain good mechanical and electrical contact; the barrel, grasped by the user for the purpose of insertion and removal, requires traction which is typically provided by raised or recessed rings, plastic inserts, knurling, or the like; and transition between the connector and the cable to which it is attached requires, in one form or another, a reduction in barrel size at the connector rear. It is my assumption, since you cite design patents only and no utility patents, that Monster Cable makes no claim here for any functional aspect of any of these designs; if I am wrong, please let me know what utility patents Monster Cable does hold, and what claims, if any, Monster asserts on the basis of those utility patents.

Further, on that point: one of the design patents you attached is closely related to a utility patent applicable to the same design, and you failed to point that fact out. I need to be able to rely upon the completeness and accuracy of the information you send to me and I find this sort of omission deeply disturbing because it is clear that the effect of this nondisclosure is to obscure the real significance of the patent features. Similarly, as I note further below, you omit reference to another patent Monster has held which appears, frankly, to be fatal to your position. If you expect to persuade me, you had better start making full, open and honest disclosures; I will find out the facts sooner or later in any event, but the impact upon your credibility will not be repaired. It looks like when you sent this letter, you were operating on the premise that I am not smart enough to see through your deceptions or sophisticated enough to intelligently evaluate your claims; shame on you. You are required, as a matter of legal ethics, to display good faith and professional candor in your dealings with adverse parties, and you have fallen miserably short of your ethical responsibilities.

My sense, in looking at these five patents, is that either you are attempting to present some argument that I simply do not understand or you are arguing for untenably broad coverage of these patents which would sweep every functional aspect of the typical solder-assembly RCA connector within the scope of a handful of mere design patents. You need to clarify this, and frankly, I think you need to indicate to me which, if any, of these patents you actually contend are relevant to the present discussion. It cannot possibly be that you believe that more than one of these patents is pertinent, and if you insist that they are, we cannot have an intelligent dialogue on this subject. Once you have identified the patent which you contend is relevant, I need to see the file history and the references to prior art; I need copies of the applicant's correspondence with the USPTO; and I need a clear and cogent explanation from you as to exactly what aspects of the Tartan connector design are alleged to constitute the infringement, and how.

Additionally, if you are able to identify any of these patents as applicable, please let me know whether Monster Cable presently sells, or has at any time sold, any products bearing connectors which are in conformity with the patent drawings or which are otherwise contended to be within the coverage of the patents, and identify those products for me. Please also provide photographs and/or physical examples of these connectors as manufactured and sold.

Also, please provide me all of the information referenced above as it relates to your expired patent D323643, a copy of which I am attaching. I will need to know what products Monster now offers or at any time has offered for sale which were believed to fall within the scope of D323643, and what claims, if any, of infringement of D323643 were made against others by Monster, whether those claims of infringement took the form of correspondence only, litigation, or otherwise. Please let me know which, if any, products Monster has ever sold or offered for sale which were marked with the patent number, or other reference, to D323643. Please also advise me whether, in your view, the Tartan connector does or does not fall within the scope of D323643, and if it is your view that it does not, please identify each and every difference between the Tartan connector and the connector represented by D323643 upon which your view is based. (On that note, let me point out to you that the "turbine cut" feature is irrelevant here as your client makes only functional, not design, claims for that feature in its marketing materials for the product.) I would assume that you would agree with me that if the Tartan connector is less dissimilar from the D323643 patent than from any of the five patents you cite in your letter, then the Tartan connector is within the coverage of the prior art and cannot, as a matter of law, infringe any of your client's current patents.

I must also point out that unless there is a good deal of background information you have not provided me which makes the case otherwise, Monster Cable cannot possibly square its patent infringement claim(s) with its own patent history. Two views of the matter might be taken; the first, which is my view, is that none of the design patents, including D323643, encompass the Tartan connector. If that is so, of course, the claim for infringement fails. But if one grants the sort of breadth to these patents that you appear to wish to do, a problem arises for Monster. D323643 is the least dissimilar to the Tartan connector of any of the patents, and stands as an obstacle to any claim of infringement of the others because it establishes prior art; if its scope, like the others, is granted the breadth you argue for, then the Tartan connector falls plainly under the prior art and cannot constitute an infringement of the later, and more dissimilar, patents. Read the patents narrowly, and Monster loses; read them broadly, and Monster loses. You are welcome to point out any error in my reasoning; but I have to say that I will be unreservedly surprised if you are successful in doing so.

Please also let me know whether Monster Cable or any related entity has brought actions to enforce any of the patents and trademarks referenced in your letter or above, and provide me with the jurisdiction, court and docket information pertaining thereto, along with copies of any decisions or judgments resulting therefrom. If any such litigation proceeded through discovery, I will need all discovery responses, including document production, issued by Monster, as well as copies of any and all depositions taken and the exhibits thereto.

Further, if any of these patents or trademarks has been licensed to any entity, please provide me with copies of the licensing agreements. I assume that Monster Cable International, Ltd., in Bermuda, listed on these patents, is an IP holding company and that Monster Cable's principal US entity pays licensing fees to the Bermuda corporation in order to shift income out of the United States and thereby avoid paying United States federal income tax on those portions of its income; my request for these licensing agreements is specifically intended to include any licensing agreements, including those with closely related or sham entities, within or without the Monster Cable "family," and without regard to whether those licensing agreements are sham transactions for tax shelter purposes only or whether they are bona fide arm's-length transactions.

Once I have received the above materials and explanations from you, I will undertake to analyze this information and let you know whether we are willing to accede to any of the demands made in your letter. If my analysis shows that there is any reasonable likelihood that we have infringed in any way any of Monster Cable's intellectual property rights, we will of course take any and all action necessary to resolve the situation. If I do not hear from you within the next fourteen days, or if I do hear from you but do not receive all of the information requested above, I will assume that you have abandoned these claims and closed your file.

As for your requests for information, or for action, directed to me: I would remind you that it is you, not I, who are making claims; and it is you, not I, who must substantiate those claims. You have not done so.
I have seen Monster Cable take untenable IP positions in various different scenarios in the past, and am generally familiar with what seems to be Monster Cable's modus operandi in these matters. I therefore think that it is important that, before closing, I make you aware of a few points.

After graduating from the University of Pennsylvania Law School in 1985, I spent nineteen years in litigation practice, with a focus upon federal litigation involving large damages and complex issues. My first seven years were spent primarily on the defense side, where I developed an intense frustration with insurance carriers who would settle meritless claims for nuisance value when the better long-term view would have been to fight against vexatious litigation as a matter of principle. In plaintiffs' practice, likewise, I was always a strong advocate of standing upon principle and taking cases all the way to judgment, even when substantial offers of settlement were on the table. I am "uncompromising" in the most literal sense of the word. If Monster Cable proceeds with litigation against me I will pursue the same merits-driven approach; I do not compromise with bullies and I would rather spend fifty thousand dollars on defense than give you a dollar of unmerited settlement funds. As for signing a licensing agreement for intellectual property which I have not infringed: that will not happen, under any circumstances, whether it makes economic sense or not.

I say this because my observation has been that Monster Cable typically operates in a hit-and-run fashion. Your client threatens litigation, expecting the victim to panic and plead for mercy; and what follows is a quickie negotiation session that ends with payment and a licensing agreement. Your client then uses this collection of licensing agreements to convince others under similar threat to accede to its demands. Let me be clear about this: there are only two ways for you to get anything out of me. You will either need to (1) convince me that I have infringed, or (2) obtain a final judgment to that effect from a court of competent jurisdiction. It may be that my inability to see the pragmatic value of settling frivolous claims is a deep character flaw, and I am sure a few of the insurance carriers for whom I have done work have seen it that way; but it is how I have done business for the last quarter-century and you are not going to change my mind. If you sue me, the case will go to judgment, and I will hold the court's attention upon the merits of your claims—or, to speak more precisely, the absence of merit from your claims—from start to finish. Not only am I unintimidated by litigation; I sometimes rather miss it.

I will also point out to you that if you do choose to undertake litigation, your "upside" is tremendously limited. If you somehow managed, despite the formidable obstacles in your way, to obtain a finding of infringement, and if you were successful at recovering a large licensing fee—say, ten cents per connector—as the measure of damages, your recovery to date would not reach four figures. On the downside, I will advance defenses which, if successful, will substantially undermine your future efforts to use these patents and marks to threaten others with these types of actions; as you are of course aware, it is easier today for your competitors to use collateral estoppel offensively than it ever has been before. Also, there is little doubt that making baseless claims of trade dress infringement and design patent infringement is an improper business tactic, which can give rise to unfair competition claims, and for a company of Monster's size, potential antitrust violations with treble damages and attorneys' fees.

I look forward to receiving the information requested and will review it promptly as soon as it is received.

Sincerely,
Kurt Denke

1. Timing: TBS HD launched with MLB playoffs; CNN HD is covering politics in a year when politics isn't BORING.

2. Pretty Picture: Sports, movies and nature top the list of demanded HD. Apparently Reno 911 isn't even near the top.

3. New Content: Converting old stuff costs $$$$$, whereas shooting in HD from the get go is cheaper and cheaper everyday, hence QVC's all-HD all-the-time pitch.

4. Money: You knew this would come up. QVC pays carriers to put their channel up. Who knows what other deals are going down?

5. Visual Upgrades: Even if the video itself isn't HD, some channels like CNBC HD (seriously?) use graphics and stuff in HD.

6. Promises, Promises: According to a source at Comcast, networks who share big 'n' nebulous HD plans for the future can squeeze by with crap programming at launch. (Hey Comcast, they also took the word "Gullible" out of the dictionary.)

7. Simulcasting: Apparently it's cheaper for a channel to broadcast stuff in HD and SD at the same time, because they save on marketing and can tell everyone to watch at the same time, whereas channels that only broadcast in HD are underpromoted.

8. Smoke-Filled Rooms: All of this comes down to deals, handshakes between suits from the carriers and suits from the content owners. (Occasionally, they have to actually shake their own hands!) Whatever variety of above incentives are offered, a deal's a deal. [Sound & Vision]

Fortunately, an online tutorial exists that gives detailed step-by-step instructions on how to accomplish true surround sound with as little difficulty as possible. It also discusses what to buy and where to get it. The final product looks great and it seems to work well—plus it costs under $60. Hit the link for the complete instructions. [HTIFSC]

Gawker Media polls require Javascript; if you're viewing this in an RSS reader, click through to view in your Javascript-enabled web browser.