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Monster
April 15, 2008 12:49 PM   Subscribe

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.
posted by veedubya (87 comments total) 30 users marked this as a favorite

 
Monster Cable previously on MeFi: HDMI Cable Battlemodo.
posted by ericb at 12:56 PM on April 15, 2008


Saw this two other places already today. Had to wonder if the grandstanding here was going to come back and bite this guy in the ass.
posted by pascal at 12:58 PM on April 15, 2008


I'm not sure what you mean by "grandstanding" or how you think it would bite him in the ass (specifics?). What do you mean?
posted by jock@law at 1:02 PM on April 15, 2008 [2 favorites]


BJC rocks. I was looking for some unterminated cable a while ago and they were the only ones who gave me the time of day for less than 500'. They didn't need to do anything else to make me a customer for life, this is just gravy. Or icing. Or gravy-flavored icing.
posted by Skorgu at 1:02 PM on April 15, 2008 [1 favorite]


More audiophile madness

More patent madness: Boeing has patented using the moon's gravity to correct the orbit of satellites. So bye-bye satellite.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 1:02 PM on April 15, 2008


Zing!
"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."
posted by ericb at 1:04 PM on April 15, 2008 [3 favorites]


Monster Cable seems to have no PR strategy; I haven't read anything good about them in years. It's possible to sell over-priced stuff with inflated specs to rich idiots and not have a terrible reputation... perhaps Monster should spend less money on frivolous legal action and more on marketing. Or innovation, if they really want to get serious about it. But it's still just speaker wire, at the end of the day.
posted by chudmonkey at 1:06 PM on April 15, 2008


(whereupon there is screaming)
posted by cortex at 1:06 PM on April 15, 2008 [4 favorites]


Not only am I unintimidated by litigation; I sometimes rather miss it.

Awesome. I would be interested in a followup post, if Monster responds and more on this comes to light.
posted by gurple at 1:07 PM on April 15, 2008


Blue Jeans cables are an incredible outfit -I think I heard of them from AskMe. The letters too long to read, but I urge anyone who has home AV wiring needs to check them out. Their products are built like tanks and are ridiculously well priced.
posted by docpops at 1:10 PM on April 15, 2008


Awesome. I would be interested in a followup post, if Monster responds and more on this comes to light.

Likewise. Hopefully there'll be more info in two weeks.
"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."
posted by ericb at 1:12 PM on April 15, 2008 [2 favorites]


Awesome.

I don't really have any need for more cables at the moment, but I almost feel like sending this guy a check. Anyone who's in the position to take an obvious IP bully like Monster down a notch, and has the cojones to actually do it, is a friend of mine.
posted by Kadin2048 at 1:14 PM on April 15, 2008 [1 favorite]


I wonder if Monster's board will be able hear the advice of their legal council over the ringing in their ears.
posted by Blazecock Pileon at 1:15 PM on April 15, 2008


The best part, by far, is the not-entirely subtle threat contained in this line:

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.

OWNED.

Goddamn.
posted by Ryvar at 1:16 PM on April 15, 2008 [5 favorites]


Wiring manufacturer rages against the machine. This is a cyborg existential crisis of some sort.
posted by krippledkonscious at 1:17 PM on April 15, 2008 [7 favorites]


From a strictly legal perspective, was Blue Jeans' response required? There is definitely a measure of grandstanding in the response letter, regardless of the clear legal merit of its content. Discounting the PR value of making public this grandiose reply, what is the strategy behind this response? Wouldn't it be better for Blue Jeans to quietly shore up their argument against Monster's claims, not highlight Monster's major flawed arguments for them, and wait for some actual filing to be made?

Or is it all just PR?
posted by chudmonkey at 1:18 PM on April 15, 2008


It's me, I know, but I get a kick out of the term "Monster Lawyers".

They're two stories tall, but instead of breathing fire, they spew litigation, covering the hapless citizenry with paperwork until they can no longer move. The Army, of course, is helpless to stop them, bogged down as they are with the cost of the billable hours.
posted by tommasz at 1:19 PM on April 15, 2008 [6 favorites]


if Monster responds and more on this comes to light

Assuming that this guy knows what he's talking about, and it certainly sounds like it - while I would love Monster to get down and dirty and fight it out, if they were hoping for an easy mark, their lawyers are probably shitting in their pants and running for the figurative exit.

Would be fun to watch though! This guy is funny.
posted by WalterMitty at 1:22 PM on April 15, 2008


Pascal, I'm not sure what you are getting at, but Monster Cable is well known for patent-trolling and frivolous trademark infringement suits, among other things. Most of the other things being related to lol-worthy claims about their own cables.

If the Blue Jeans guy just quietly told Monster Cable to fuck off and they did, they would just go after the next small manufacturer on their list (who probably doesn't have the same legal background), and nothing would have changed. This way, at least the issue gets aired out publically. So I think he has a legitimate purpose.
posted by Spacelegoman at 1:25 PM on April 15, 2008 [1 favorite]


I may be being naive here, but couldn't the lawmakers just say that a cease and desist letter is legally binding. That is, if someone sends you a cease and desist letter, you (as the defendent) can, if you want, insist that they have to take you to court.

Wouldn't that cut down on the number of cease and desist letters which, like this, are just sent out to bully smaller firms?
posted by seanyboy at 1:27 PM on April 15, 2008


Would also like to see someone smack little blue and its ilk for marking up generic cabling and accessories connectors to $30 and more. Thankfully, at least, the local dollar store is an excellent source of Cat6 and USB hoses.... yes, for a dollar.
posted by seanmpuckett at 1:28 PM on April 15, 2008


That. Was. Awesome.

Three cheers for Kurt Denke.
posted by blacklite at 1:29 PM on April 15, 2008


chudmonkey: It's just grandstanding. None of the stuff he asks for is required in a C&D and some of it wouldn't even be available in discovery in an actual litigation. Either they are going to sue or they aren't -- most IP lawyers would advise them that they are required to send the C&D if they have a good faith basis to do so in order to protect their marks (though there is some dispute about that).

If the Monster lawyers (heh) have any brains they won't worry about the grandstanding former litigator. They will have a strategy and his response will be irrelevant to it. Having said that, I'm sure his products are much better than theirs. That's hardly saying much -- Monster really does suck.
posted by The Bellman at 1:30 PM on April 15, 2008


pwned!

(I know, I know. But I read the whole thing and couldn't contain myself.)
posted by cowbellemoo at 1:30 PM on April 15, 2008


Here's the letter / attachments to which he is replying.
posted by Perplexity at 1:33 PM on April 15, 2008


I'm really curious how this will turn out. He even lays out the case that if they win, they won't win very much, but stand to lose their ability to legally strong arm people if they lose.
posted by drezdn at 1:34 PM on April 15, 2008


Only understood about 1/4 of the legalese/patentese, but enough to laugh. You go, Blue Jeans guy!
posted by rtha at 1:37 PM on April 15, 2008


I may be being naive here, but couldn't the lawmakers just say that a cease and desist letter is legally binding. That is, if someone sends you a cease and desist letter, you (as the defendent) can, if you want, insist that they have to take you to court.

I'm not sure that this wouldn't make the situation worse.

The idea of a C&D letter is that it's basically a threat. It's saying, in essence, "stop this or we're going to sue you." It doesn't carry a whole lot of legal weight itself -- it's not an order. You really have two choices on receiving one:

1. You can stop doing whatever they tell you to stop doing in the letter, and (theoretically) they won't sue you.

2. Or, you can keep right on doing it, essentially calling their bluff, and duke it out with them in court if/when they sue you.

It's basically just a letter, though, regardless of how much legalese they toss in there. I'm not sure why making it 'legally binding' would be any improvement, because then you'd just have some sort of pre-C&D warning letter playing the same role. As long as litigation is expensive, you're always going to have entities with money using the threat of litigation as a bludgeon against entities with less money.

The problem is that when average people receive them, they tend to be so freaked out that they respond (and act) as if it was a command from God. It's really not, and I've at times seen people come to just as much harm from complying with (in retrospect) bogus C&Ds than they would have if they'd lawyered up and made the C&Der take their case in front of a judge to be laughed at.

(All this assumes that the C&D isn't outright fraudulent in the first place; I'm certainly not defending or suggesting that sending one that's knowingly unsupportable is defensible. But in most situations at least that I've been involved in, the C&Ds aren't that ridiculous. They sometimes just take a very one-sided view of things.)
posted by Kadin2048 at 1:48 PM on April 15, 2008 [2 favorites]


one hopes that a viable class-action suit would be filed against monster for frivolous litigation.
posted by shmegegge at 1:54 PM on April 15, 2008


EMRJKC'94: And again I'm lured to audiophile boards for cheap laughs and end up wanting to wash my brain. Ugh. How can anyone claim to care about aesthetics of sound and think like a brick.
posted by Free word order! at 1:55 PM on April 15, 2008


Not only am I unintimidated by litigation; I sometimes rather miss it.

I cried laughing at this part.
Fuck Monster.
posted by brevator at 1:57 PM on April 15, 2008


Lol this guy royally owned monster!
posted by saxamo at 2:07 PM on April 15, 2008


I may be being naive here, but couldn't the lawmakers just say that a cease and desist letter is legally binding. That is, if someone sends you a cease and desist letter, you (as the defendent) can, if you want, insist that they have to take you to court.

If the cease and desist letter is not carefully worded, for instance if it states that failure to cease will be followed by litigation, then you can take the letter writer to court, the advantage being you get some say over which court, usually your home court. It's the home court advantage.

Anyway, Monster does not have a chance in Hell of succeeding in this case. Design patents only protect the ornamental design, not the functional aspects of the design. The standard is if an ordinary observer, looking at the potentially infringing product, would think it was the patented product. (The trademark/trade dress issues are similar except that there must be a likelihood of confusion between the trademarked goods and the potentially infringing goods.) When the prior art all pretty much looks the same the design will be quite narrowly interpreted. Most RCA connectors look pretty similar. You can eyeball the Blue Jean connectors (they use Canare connectors) and find quite a few differences. For instance, there are no axial slots in the housing at its distal end, whereas each of the patented designs have this feature. As for the embossments on the body, they are primarily axially oriented on the Canare connector and primarily circumferentially oriented in the patents. It's crap like this that reinforces why I would never buy a Monster Cable product. Not only are the products overly expensive and crappy in performance IMO, but their business tactics are reprehensible.
posted by caddis at 2:30 PM on April 15, 2008 [2 favorites]


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.

I like this guy.
posted by slimepuppy at 2:38 PM on April 15, 2008


That's actually kinda hot.
posted by bettafish at 2:40 PM on April 15, 2008 [1 favorite]


Executive summary (for Monster Cable execs):

Status of the down in your old ski coat: Smacked.
Status of the down in your momma's long-gone comforter: Smacked.
Status of the down on any ducks of which you are part or whole owner: Smacked.
Status of every down of your favorite football team: Smacked.
Status of a fabric softener you may have used: Smacked.
Status of any System of a Down you may have played through your cables: Smacked.
Status of your own personal, bodily down (if any): Smacked.
posted by eritain at 2:54 PM on April 15, 2008 [33 favorites]


I was told that the electrons actually go faster through a Monster cable. It's the way they're braided.

So there you have it.

Not gillcup.
posted by stubby phillips at 3:03 PM on April 15, 2008 [1 favorite]


Thank you for posting this; like the eyeglass industry, it's hard to find the reasonably priced choices instead of the monster chains. I was miserable hunting down a new HDMI cable for my mother in law, because they were all monster cables selling at retail for more than $70; I finally settled for a radio shack cable for $50. The same length and (presumably) quality of cable from BJC appears to be about $10 plus shipping -- which blows my mind.
posted by davejay at 3:05 PM on April 15, 2008


Grandstanding though it may be, that was pretty great. It sounds like Monster just throws a bunch of paperwork at people in the hopes of scaring them into compliance, but this guy caught them on it. Hopefully this letter doesn't wind up hurting him, though...
posted by Sticherbeast at 3:05 PM on April 15, 2008


"It's really not, and I've at times seen people come to just as much harm from complying with (in retrospect) bogus C&Ds than they would have if they'd lawyered up and made the C&Der take their case in front of a judge to be laughed at."

God, this is what dealing with DCMA claims through Livejournal was like. Some guy claimed that he had copyright over my icon picture of myself, which was laughable. So my lj was suspended until I took it down, despite my complaints. All of this because I made fun of him on the debate board. It ended up taking months to get cleared up and would have been much more of a pain in the ass if I hadn't been moving away from lj already. That just kind of cemented it, the retards.
posted by klangklangston at 3:08 PM on April 15, 2008


Monster really shot themselves in the nuts with this. I imagine BJC's customer base just tripled overnight.
posted by lumpenprole at 3:21 PM on April 15, 2008


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;

Late night cable porn?


I'd never heard of Blue Jeans Cable, but I think I'm liking their style.
posted by quin at 3:34 PM on April 15, 2008


I want to hug this man.
posted by CitrusFreak12 at 3:38 PM on April 15, 2008


Making a C&D letter "legally binding" as you put it -- that is, to make it incur an obligation to try the case -- would overburden the court system. Many (though not, I think, most) potential cases are disposed of at the demand letter stage.

Besides, what would be the purpose? So this guy can go to trial if he wants? He's already can. It's perfectly within his rights to sue Monster, seeking declaratory relief.
posted by jock@law at 3:40 PM on April 15, 2008


Boeing has patented using the moon's gravity to correct the orbit of satellites.

Wait, so is Boeing claiming that it invented the moon, or that it invented physics?
posted by oaf at 3:50 PM on April 15, 2008 [2 favorites]


The letter is deliciousness through and through.
posted by Mental Wimp at 4:02 PM on April 15, 2008


To everyone who asked me what I meant in my comment, some answers.

Grandstanding: I'd have thought this should be obvious - he pretty clearly wrote this with the intention of publishing to a wider audience, and he really, really wants that audience to know how smart he is. Gotta admit I did enjoy quite a bit of this letter (like most people here, I believe Monster Cable is an utter waste of space) but by the time he started writing his autobiography towards the end I'd had enough.

"Bite him in the ass": while the author believes he is lot smarter than Monster's lawyers, personally I don't claim to know enough of the relevant law to be sure that he is, and I suspect that applies to most people here too. If he's wrong, he is going to look pretty silly.
posted by pascal at 4:03 PM on April 15, 2008


I'm seriously thinking about buying something from these guys, even though I don't need anything, just to support them. I'm so sick of bogus IP lawsuits that I want to reward the good guys.
posted by SpacemanStix at 4:08 PM on April 15, 2008 [1 favorite]


The letter only served its purpose if Monster doesn't sue. If Monster has a good faith basis for any of its claims, this is exactly the type of letter that will bring them into court immediately. Tactically, BJC's letter may be a disaster. It all hinges on the assumption that Monster should never have been knocking on his door in the first place. The guy keeps admitting that maybe he is and maybe he isn't infringing, he can't tell from the information provided. If you really don't know, it isn't smart to taunt the beast.

You see, once litigation starts, BJC is in no different a position from all other IP case defendants. What he asked for in the letter is not much different than a lawyer would ask for a couple of months after the case started. Essentially BJC just put his requests forward at the beginning and dared Monster before the litigation started. It shouldn't scare any lawyer. To the contrary, if I were Monster's lawyer, I'd be quite pleased with this letter - it could mean a lot of good paying work for me in the near future on a new lawsuit.

BJC, on the other hand, showed weakness to any seasoned IP lawyer. He is showing himself to have a big ego. Egos often make mistakes. For example, the line many of you like about spending 50 grand to litigate versus settle - sorry, but surveys show that BJC would more likely be looking at a quarter to a half million to defend any of these claims (and that would be on the low side). Sure, this guy can cut a few costs if he represents the company himself (which he is not allowed to do entirely on his own, all companys must have legal representation in federal court), but in the end the costs will never stay at 50 grand. He had better have a war chest if he wants to play in the litigation game. Monster may well be willing to drive this guy out of business to prove their point, even it if costs them cash in doing so.

Then, when all of this is over, if Monster still loses but had a good faith basis for the lawsuit, BJC is out the time and money of the fight with no upside.

I'm not saying the letter won't work, but I am saying it wasn't tactically very smart. If I were Monster, I had a good faith basis for my suit, and cash to support the litigation, I'd have the complaint on file within the week. Monster is not, in any case, too worried about this guy. If they want all they have to do is leave him alone...yeah, boo hoo...taught Monster a lesson...
posted by Muddler at 4:10 PM on April 15, 2008 [3 favorites]


Oh, and PCCables.com is still less expensive than BJC - half or less the price for RCA cables
posted by Muddler at 4:21 PM on April 15, 2008


klangklangston: God, this is what dealing with DCMA claims through Livejournal was like. Some guy claimed that he had copyright over my icon picture of myself, which was laughable. So my lj was suspended until I took it down, despite my complaints. All of this because I made fun of him on the debate board. It ended up taking months to get cleared up and would have been much more of a pain in the ass if I hadn't been moving away from lj already. That just kind of cemented it, the retards.

This is what pisses me off about C&Ds and copyright claims more than anything else - you can make bogus ones all day and have nothing really happen to you. You know what should happen? If Monster Cable is found to not only be wrong in their claims, but be making them abusively, they should lose the patents they claim their competitors to be violating, and if they keep it up past that, lose all IP protection whatsoever. Make false IP claims, lose your IP. I bet it would stop them when fines won't.
posted by Mitrovarr at 4:28 PM on April 15, 2008 [2 favorites]


Make false IP claims, lose your IP. I bet it would stop them when fines won't.

That already is the law. Abusive use of a patent leads to that patent being declared unenforceable. Quite logically, it has to be pretty extreme to lead to that big of a sanction.

The same applies under the DMCA. If you just send a letter explaining why your content is not a copyright violation the host gets to put your content back up 10-14 days later.

If somebody sends a fake DMCA letter then they owe you your costs:
17 USC 512(f) Misrepresentations. Any person who knowingly materially misrepresents under this section--

(1)
that material or activity is infringing, or
(2)
that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer. . .
posted by Leon-arto at 4:56 PM on April 15, 2008 [1 favorite]


Ha ha ha ha ha!

April Fools!
posted by Chuffy at 5:00 PM on April 15, 2008


I will buy cables from BJC next time I need them. I'm sure that other people feel the same way. That's the upside here.
posted by paperzach at 5:15 PM on April 15, 2008


Had to wonder if the grandstanding here was going to come back and bite this guy in the ass.

Pascal, in my experience (IAAIPL) it usually does. Grandstanding like this (and perhaps especially in a public forum)--however cathartic it's gotta feel for the perhaps very validly resentful writer --is asking for trouble. It is difficult for most people, even the most intelligent, to effectively defend themselves in legal matters without letting anger and indignity take over, and these bitter emotions, sarcasm, and the like (while totally understandable and human) are unhelpful and often harmful to a successful legal defense.

Monster's IP lawyers may already have their highlighter pens in high gear mining statements from BJC's letter for their future discovery value, and these attorneys are no doubt laughing about this letter in the halls.

[On a similar note, criminal defense lawyers I have known have said that they absolutely loved taking a cop's deposition. They claimed that police officers (or more accurately those cops who do embody our society's most negative cop stereotypes. e.g. bullying, cocky, egotistical, not as smart as they think that they are) often gave long, blustery answers to the defense lawyers' questions which provided more information (and information damaging to the state's case) than was being asked of them in the first place had they simply answered the question without showing off how tough or how smart they were.]
posted by applemeat at 5:15 PM on April 15, 2008


did everyone seriously ignore the FIRST LINE OF THE LETTER: RE: Your letter, received April Fools' Day.
posted by casconed at 5:32 PM on April 15, 2008


casconed: No, I assumed it was part of the jab at them, not that this was a hoax (he's pretending to be sued?). I guess it's possible though.

The letter only served its purpose if Monster doesn't sue. If Monster has a good faith basis for any of its claims, this is exactly the type of letter that will bring them into court immediately. Tactically, BJC's letter may be a disaster. It all hinges on the assumption that Monster should never have been knocking on his door in the first place. The guy keeps admitting that maybe he is and maybe he isn't infringing, he can't tell from the information provided. If you really don't know, it isn't smart to taunt the beast.

Legally it may have been a tactical blunder, but even if he loses this letter is brilliant piece of advertising. It's everywhere in the internet tech community right now, which I'm guessing has a lot of overlap with his customer base.
posted by malphigian at 5:53 PM on April 15, 2008


<snip>he pretty clearly wrote this with the intention of publishing to a wider audience, and he really, really wants that audience to know how smart he is</snip>

i don't think that's evident at all. lawyers tend to have a show-offy kind of speech. it's such a problem that some law schools are requiring books on plain english for their 1L legal writing classes. see, e.g., Richard C. Wydick, Plain English for Lawyers (5th ed. 2005).[1][2]

<snip>while the author believes he is lot smarter than Monster's lawyers, personally I don't claim to know enough of the relevant law to be sure that he is</snip>

he doesn't believe he's smarter than their lawyers, he believes he's smarter than their lawyers think he is. and i think so, too. the strategies of companies like what Monster seems to be is to make money off one simple economic fact -- it's usually cheaper to license than to litigate, even if you were to win. they don't count on CEOs to simultaneously know enough and care enough to begin a vendetta. looks like this time they were wrong.

<snip>and I suspect that applies to most people here too</snip>

i'm "@law" because that's the subdomain of my .edu address. i haven't analyzed the response letter line by line, but nothing jumped out at me as being legally wrong. if it's true that the design of the Tartan connector is closer[3] to Monster's old, patent-unencumbered connector than to that of any of the patent-encumbered connectors, then his argument is pretty strong.

[1] Yes, that's Bluebook.
[2] I also think the reference to Rule 11 by its rule number makes it clear that he meant to impress Monster's lawyers more than the tech crowd. Rule 11 is about sanctions -- his message is more "I know what I'm doing so don't fuck with me" than "Hey everyone look at me stick it to the man." The average person reading that response wouldn't know the full extent to which he was asserting his prowess.
[3] "Closer" is pretty imprecise. What I mean is, similar enough that the difference between the old patent-expired connector and the Tartan connector would be either not-novel or obvious to a person having ordinary skill in the art of designing RCA audio cables. If that's the case, then for each of the five asserted patents, a) if that patent covered something not-novel or obvious it is invalid, or b) if that patent doesn't cover the not-novel or obvious difference, it doesn't cover the Tartan.
posted by jock@law at 6:01 PM on April 15, 2008 [4 favorites]


The same applies under the DMCA. If you just send a letter explaining why your content is not a copyright violation the host gets to put your content back up 10-14 days later.

I wrote the letter. Livejournal kept me as banned until I removed the picture. And the "costs" were simply aggravation, rather than anything economic. It was a pissy move handled by idiots on the Livejournal abuse team, who had no idea what the goddamned law was.
posted by klangklangston at 6:07 PM on April 15, 2008


<snip>The letter only served its purpose if Monster doesn't sue.</snip>
Pretty big assumption there.

<snip>If Monster has a good faith basis for any of its claims</snip>
An assumption you're making without any basis.

<snip>It all hinges on the assumption that Monster should never have been knocking on his door in the first place.</snip>
Who are you to say that's not true?

<snip>The guy keeps admitting that maybe he is and maybe he isn't infringing</snip>
Not really. Please reread the letter. Read between the lines this time.

<snip>You see, once litigation starts, BJC is in no different a position from all other IP case defendants. What he asked for in the letter is not much different than a lawyer would ask for a couple of months after the case started. Essentially BJC just put his requests forward at the beginning and dared Monster before the litigation started.</snip>
He does ask for some things which would be discoverable; however, he also does a lot more than that. I think you are grossly simplifying the letter.


<snip>if I were Monster's lawyer, I'd be quite pleased with this letter - it could mean a lot of good paying work for me in the near future on a new lawsuit.</snip>
"Monster's lawyer" -- at least the one drafting the C&D letter -- is probably in-house and doesn't have much worry about payment.

<snip>BJC, on the other hand, showed weakness to any seasoned IP lawyer. He is showing himself to have a big ego.</snip>
You don't know if something is "ego" or mere confidence unless you know the merits of the argument. Based on the content of the rest of your post, I'm unconvinced that you do. In fact, I'm not sure you even read the letter. He is a lawyer himself, so there's no problem with him being part of BJC's defense team in Federal court, as long as he's admitted to the appropriate bar, except possiblyif they sue him individually as well, which might create a conflict of interest.

Point is, you go on and on about tactical mistakes and egos, when you don't know anything about his ego OR his tactics. Reread the letter. Then think a little bit before posting.
posted by jock@law at 6:14 PM on April 15, 2008


Yeah, it's just grandstanding. Neither Monster nor their attorneys (LaRiviere, Grubman & Payne is a real West Coast firm) has to give this guy jack. This isn't discovery, it's a bluffing game.

I wouldn't be surprised if Monster sues and wins, just as much on principle as this guy seems to be. Why? Because Mr. Denke is something of a jackass. You don't go touting your Ivy League education or how much you miss litigation unless you've got something to prove, and as applemeat points out, this kind of thing leads to mistakes. Monster might well use this as a case where they crush their legal opponents into oblivion, adding fuel to their FUD fire.

How will Monster win? Because discovery works both ways. If Mr. Denke decides he wants to do discovery, there isn't anything preventing Monster from dropping 10,000 pages of documents on him. They'll give him everything he asks and more. Why? Because he then has to get through all of that to find what, if anything, he can use in his defense. Monster already has a ten-attorney IP boutique firm on retainer which presumably hasparalegals; Mr. Denke is working by himself. He'll never make it to trial, because he'll have to devote so much time to the litigation that he'll have to declare bankruptcy. LGP racks up a few hundred billable hours, Monster squashes a competitor; everybody but Mr. Denke wins.

It's telling that Mr. Denke is a former litigator. Though there are certainly people who get tired of practicing law and move on to greener pastures, it's a pretty sweet gig, and moving from insurance defense to electronics components is not a step up by most estimates. And he's wrong about the diagrams: they're plenty clear. I can't tell whether any of BCJ's products infringe upon Monster's patents from them, but that's because IANAPL, not because they're blurry or unclear.

I'm interested to see where this goes.
posted by valkyryn at 6:19 PM on April 15, 2008 [1 favorite]


jock@law, I think we've seen plenty about both Mr. Denke's ego. . . and about yours.
posted by valkyryn at 6:27 PM on April 15, 2008 [2 favorites]


I think his reference to Rule 11 is a warning shot across the bow of the lame IP lawyers who did a pretty lazy job of claiming IP infringement. If they were to file a complaint with all these bogus charges they might actually be facing sanctions for frivolous litigation, that is sanctions against the lawyers themselves. The '863 patent in the exhibit is probably the only one they can safely file a claim on without fear of Rule 11 sanctions, maybe that first one too, but that is a stretch. Anyway it's a piss poor case on Monster's part. If this guy is an attorney he can represent his company himself, although he might need local counsel. Patent litigation is frightfully expensive, but he can go on the cheap. He can also look to Canare who sold him the connectors, as that part forms the entire basis of Monster's suit. Absent some agreement to the contrary if he is using Canare's design they have indemnified him against claims of infringement. However, there is often some agreement. Anyway, it probably is not that dire for BJC, and they certainly will gain some free publicity. I am in need of another set of nice interconnects and at these prices this is about the same price as if I were to make them myself with high quality components and the BJC ones. I think I am going to give them a try.
posted by caddis at 6:37 PM on April 15, 2008


I do agree though that the grandstanding is not ultimately helpful.
posted by caddis at 6:45 PM on April 15, 2008


The reason I favorited @laws first and third comments (I did) was because, if, one operates under the for the record presumed premise that Kurt Denke's letter reply's points are valid regardless of their being made more or less well and that said letter reply is wonderful—and subsequently noteworthy—as an example of an simple and replicable writing style, then, @laws' first comment, a request for clarification, (first favorited) is funny for it's demonstration of a writty wit to be found in the moreso than not lack of irony in the tense and prose style of that letter reply writer's style, and the (second favorited) third comment, in response to a counter-casual interjection of doubt based upon the esteemed pascal's possibly unfortunately less-superlative calls to question of the aforementioned quality of substance and style that is Denke's letter reply is just simply correct and subsequently, what I think to be, well-played.

As I see it: The dialog was requested to be be opened and then opened—and then pleasantly (but in some sense disfortunatley though hopefully unintentionally) requested to be not opened and then closed. Pascal gave commentary which opened dialog intentionally or unintentionally with @law. And all in context!

What's not to favorite?
posted by humannaire at 6:53 PM on April 15, 2008 [1 favorite]


jock@law, yes, I did see the "@law" part which is why I said "most people" and not "everyone". But with all due respect, being in law school does not make you a lawyer.
posted by pascal at 6:55 PM on April 15, 2008


*sighs, drops out of Mr. T school*
posted by cortex at 6:57 PM on April 15, 2008 [9 favorites]


I dunno about ego, but <snip> &lt/snip> is pretty goddamned annoying.
posted by mr_crash_davis at 6:58 PM on April 15, 2008 [3 favorites]


Ya wanna replace your <snip>s with <i>s next time, please? The exaggerated markup makes it more difficult to read smoothly. Thx.
posted by five fresh fish at 7:13 PM on April 15, 2008 [1 favorite]


Mr. Denke is working by himself. He'll never make it to trial, because he'll have to devote so much time to the litigation that he'll have to declare bankruptcy.

Mr. Denke is working with the teeming internet hordes. If the wankers drop 10K pages of discovery in his lap, they'll be scanned and parsed by 10K of audiophile bloggers and listers.
posted by five fresh fish at 7:19 PM on April 15, 2008 [1 favorite]


Mr. Denke is working with the teeming internet hordes. If the wankers drop 10K pages of discovery in his lap, they'll be scanned and parsed by 10K of audiophile bloggers and listers.

If the critical legal analysis I see from most of these bloggers holds true to form, I expect Monster to win a decisive and early victory.

Oh, and jock@law, before you start sniping on metafilter about "assumptions" because you think you know your shit from being in law school, consider that some of us on this website do know what we're talking about - and probably more than you, as some of us (including me) have been practicing IP litigators for a good many years.
posted by Muddler at 7:33 PM on April 15, 2008 [2 favorites]


Gentlemen please. Can we all just get back to calling Monster 'evil' and making fun of people who buy overpriced sonically stable volume knobs?

You know. For the kids.
posted by device55 at 7:40 PM on April 15, 2008 [1 favorite]


As far as I can tell whole point of the letter was to signal to Monster that he's not one of the low-hanging fruit. Bullies like easy pickings. (Funny how it never occurred to me until just then that Monster cable is aptly named.) He's offering a simple formula: "Bring it and by god I'll make you work for it" + "I'm not worth a lot to you even if you win" = "I'm not worth the trouble."
posted by George_Spiggott at 7:46 PM on April 15, 2008 [1 favorite]


I expect Monster to win a decisive and early victory.

Really, on those patents, and you are an "experienced" IP litigator? Does that include patents, because unless you are just complaining about the grandstanding that is just crazy talk?
posted by caddis at 7:53 PM on April 15, 2008 [1 favorite]


I would never hire any of the whiners in this thread to represent me, that's for damn sure. The letter is well-written, the argument is very sound (especially if you know anything about cables) and the presentation is excellent. You're all assuming he is actually infringing on something, and he really isn't. Read up.
posted by blacklite at 7:53 PM on April 15, 2008


Point is, you go on and on about tactical mistakes and egos, when you don't know anything about his ego OR his tactics. Reread the letter. Then think a little bit before posting.

Minutes later...

Yeah, it's just grandstanding.

Considered then rejected.
posted by oxford blue at 8:25 PM on April 15, 2008


If the critical legal analysis I see from most of these bloggers holds true to form, I expect Monster to win a decisive and early victory.

Other than the complaint about grandstanding, what about Monster's case do you believe would carry them to a decisive and early victory, at least on the merits of their case and not by bankrupting Denke?
posted by Blazecock Pileon at 8:28 PM on April 15, 2008


I suppose this thread was destined to turn into a lawyer / law student dick measuring contest. I thought the letter was convincing, indignant and devastatingly funny.
posted by letitrain at 8:40 PM on April 15, 2008


I spent a good part of my early legal career sending and receiving nastygrams. I find this to be a genuine work of art. Kudos to Mr. Denke. Writing that letter required a lot of work, but I think he enjoyed it.
posted by brain_drain at 8:50 PM on April 15, 2008


Muddler is right: you can't crowdsource discovery. Not only are the masses completely incapable of performing competent legal analysis--this thread is proof of that, but there are plenty of other examples on this site--but doing so would be a violation of confidentiality. You can't just release documents obtained in discovery on the Internet.

Furthermore, "infringement" is a legal term of art, the merits of which cannot possibly be ascertained on the information presented. A court may well find infringement; it won't be the first time patent litigation has produced a result which was unpopular on the Internet. Patent cases operate on a "preponderance of the evidence" standard, meaning the court only needs to find that it's slightly more likely than not that there is infringement to find for the plaintiff. This isn't a particularly demanding burden, meaning the plaintiff can win relatively easily (certainly more easily than a prosecutor can). It also means that the fact that there's evidence against infringement in no way means there isn't infringement. There just needs to be slightly more evidence for it.

We don't have any evidence here people. Nothing in either letter or any of the exhibits leads to any significant legal conclusions. "They don't look the same to me," is not admissible evidence, and that's really all Mr. Denke has at this point. Advising caution--and criticizing unnecessarily bombastic legal tactics--is entirely appropriate.
posted by valkyryn at 8:55 PM on April 15, 2008 [1 favorite]


We don't have any evidence here people.... "They don't look the same to me," is not admissible evidence,

Um, that is pretty much the way design patent evidence works. All we are missing is the file histories, and you can go look them up at the pto website if you would like, but they are probably too old to be online. (The Blue Jeans site appears to be a bit overloaded right now and is not cooperating with the pdf files needed to look up the patent numbers at issue.) With the pictures of their products, the patents and the file histories there is sufficient evidence. Of course in a full blown trial more evidence, such as more examples of prior RCA connector designs would be helpful to BJC. All this smoke about preponderance of the evidence is mere blather, and the rim case is completely irrelevant. Even without the file history you can get a good sense of Monster's difficulty by noting the visual differences. It really does boil down to do they look the same, well same enough. When you consider that all these RCA connectors already look essentially the same Monster is in a tough spot. If they were the first ones to actually have knurling on a metal body in that location they might have a slightly better chance, but there remain differences. Then they could at least argue that the differences are not significant. Although I am not sure I agree. So, we don't have enough evidence to rule on the matter if say we were a court, but we sure have enough evidence to analyze the strength of Monster's claim and it is limp. (as for the crowdsourcing discovery, that is crazy, BJC will have to examine the discovery material itself. the crowd could help with prior RCA connector designs with knurling etc. but that is about it) Litigating a limp claim to bankrupt a competitor is a good way to get slapped with Rule 11 sanctions, and potentially even patent misuse which is nasty.
posted by caddis at 10:16 PM on April 15, 2008


I think this response is a good tactical move. Blue Jeans does not want to have a fight in court that they would then win - they would prefer not to litigate. This letter is a very big "do not mess with me" sign. Blue Jeans is saying, simply "we don't intend to roll over and license your stuff, and so this whole endeavor is going to be expensive for you; for starters, I will file for discovery in every applicable nook and cranny, bringing entire sections of your company to a grinding halt as they work to comply."

I predict that Monster would prefer to move on to easier, more lucrative targets.
posted by zippy at 2:12 AM on April 16, 2008


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.
HOLY FUCKING pWN3d, BATMAN.
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.
Translation: I have money, and I'm looking for a fight. Bring it.
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.
Subtext: I also have the internet, of which you are undoubtedly familiar. The court of public opinion is generally infavorable to the likes of bullies like yourself. I will make this cost you millions just in negative PR. I have nothing better to do with my time than to take on a Great Cause!

Is it all a lot of bluster and swaggering and ego-tripping? Of course! But that's what all great lawyering is!
posted by Civil_Disobedient at 2:59 AM on April 16, 2008 [1 favorite]


I started out thinking the guy was awesome, but by the time I finished reading he'd merely reinvigorated my loathing and distrust of all lawyer types.
posted by autodidact at 3:07 AM on April 16, 2008 [2 favorites]


Nothing in either letter or any of the exhibits leads to any significant legal conclusions.

Sure -- the BJC guy's letter was simply an obnoxious request for more information, given the lack of sufficient info on which to make a judgement about the original cease and desist letter.

Is there a good reason why someone shouldn't grandstand in such a letter? Because if there is, nobody has explained here so far. Is it simply that if you piss off the lawyers on the other side, they're going to get nasty back? Because I have to say, he doesn't seem be be that bothered by the prospect.

moving from insurance defense to electronics components is not a step up by most estimates

Surely this must about the relative amounts of money that you make, because I really don't see that there's any status inherent in being a hired gun that does financial beat-downs for the slime who run the insurance rackets.
posted by PeterMcDermott at 3:51 AM on April 16, 2008


If the critical legal analysis I see from most of these bloggers holds true to form, I expect Monster to win a decisive and early victory. [emphasis added]

For those of you (caddis, Blazecock) who may have initially missed it, this is a critique of the legal analytical skills of the average blogger, not on the strength of Monster's case.
posted by RikiTikiTavi at 9:02 AM on April 16, 2008


This guy knows his customer base, if nothing else.

He probably has a 1200% spike in business with the publication of this letter. Maybe 5000%

As he said at the very end, even if a judgement were awarded, it would be less than $1000. Monster's attorneys will spend more than that even attempting to respond to his letter.

There will be no huge dust-up over this. Monster will not take him to court. This firm will not waste their time with even a single act of response for $1000. Monster may be stupid, but they are also greedy. They are not going to pay three high-powered lawyers to go to court to try to squeeze this turnip for less than what one of their briefcases cost.

There will not even be a response. He gave them a gracious "out" by saying no communication in 14 days will close the matter. There will probably be nothing else said, and pretty soon everyone will forget about it.

Right now, Monster's customer service lines and any available email inbox are probably filling with calls and hate mail and strong swears of "I'll never buy another of your products again" and the typical, consumer activist responses.

This is a situation where chasing a dollar has cost a company 100. And it's not that I think Monster is going to cry over this or even miss the revenue, but I think this is an example of how the "old way" of doing things may be eroding. If I were the CEO of Monster, and I saw this uproar, and found out it was over somewhere south of $1000, I would be highly pissed off, and someone would be getting an earful.

Proper risk for proper return. It applies to all forms of gambling, including patent trolling.
posted by Ynoxas at 11:39 AM on April 16, 2008 [2 favorites]


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