Appeals court denies broadcasters' motion to shut down Aereo TV streaming service

A New York federal appeals court on Monday upheld a prior ruling in favor of broadcast television streaming service Aereo, disappointing broadcasters, who say that company's operations constitute illegal retransmission of owned content.
A district court judge last year blocked an attempt by CBS, Comcast, News Corporation, and Disney, to stop Aereo from retransmitting their broadcasts to subscribers in New York, the only state in which Aereo is currently available. Those subscribers pay about $8 per month to Aereo, which set up an array of antennas that receive over-the-air television broadcasts before routing the signal through the Internet to a subscriber's phone, computer, or tablet. 

The broadcasters contend that Aereo's operations are "public performances" of their protected content, and that the service is thus in violation of retransmission rules governing their broadcasts. With other operators like Time Warner already paying for retransmission rights, the broadcasters looked to win a preliminary injunction against Aereo in a bid to stem possible lost revenue.

On Monday, the Court of Appeals for the Second Circuit upheld the lower court's prior ruling in a 2-to-1 decision. The majority opinion found that the broadcasters were "not likely to prevail on the merits."

The New York Times reports that one judge out of three dissented, claiming that the antenna array Aereo uses to capture content before retransmission is a "Rube Goldberg-like contrivance, overengineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law." That judge, Denny Chin, said that the streams were in fact "public performances" and thus in violation of copyright.

Representatives for the broadcasters expressed their disappointment at the verdict. "Today's decision is a loss for the entire creative community," they said in a statement. "The court has ruled that it is O.K. to steal copyrighted material and retransmit it without compensation."

The representatives went on to say that they are considering their options to protect their programming. 

With the positive ruling, Aereo now plans to expand its operations to 22 more cities this year. "We always thought our Aereo platform was permissible and I'm glad the court has denied the injunction. Now we'll build out the rest of the U.S.," said media mogul Barry Diller, a major backer of Aereo. 

The case is unlikely to end with Monday's decision, however, as the Federal District Court in Los Angeles ruled against an Aereo-like service called Aereokiller in December.

Microsoft Paves Way for Smaller Windows 8 Tablets

Microsoft is apparently making room for smaller Windows 8 tabletsthat could compete with devices like Amazon’s Kindle Fire and Apple’s iPad Mini.

As spotted by Ed Bott at ZDNet, Microsoft’s certification guidelines for Windows 8 now allow for tablets with resolutions as low as 1024-by-768. That’s the same screen resolution and aspect ratio as the iPad Mini, and while Microsoft doesn’t exactly say it’s inviting smaller Windows 8 tablets, you can read between the lines:

This doesn’t imply that we’re encouraging partners to regularly use a lower screen resolution. In fact, we see customers embracing the higher resolution screens that make a great Windows experience. We understand that partners exploring designs for certain markets could find greater design flexibility helpful.

Smaller tablets have become popular in recent months because of their lower prices and greater portability. Market research groups IHS and DisplaySearch see 7- and 8-inch tablets as growing faster than larger screen sizes, possibly overtaking larger tablet sales in the next year or two.

But at the moment, no sub-10-inch Windows 8 tablets exist, possibly because of the minimum 1366-by-768 resolution Microsoft requires for certification. On smaller displays, that widescreen aspect ratio would make the screen seem too skinny. The relaxed requirements allow for tablets that would run wider in portrait mode, or taller in landscape mode.

There is one big drawback, though: Tablets that drop below 1366-by-768 won’t be able to use Windows 8′s Snap feature, which lets a second Windows Store app run in a sidebar next to the main app. Snap is one of the most useful and unique features of Windows 8, and although Microsoft will require tablet makers to disclose the lack of Snap, without it, smaller Windows tablets will lack a major selling point over other cheap tablets.

The other problem is that if tablet makers start putting out 1024-by-768 Windows tablets, they’ll essentially be competing with last year’s iPad Mini. All signs point to Apple launching a Retina-display iPad Mini later this year, and it’s likely that other tablet makers will bump up the screen resolutions of their small tablets. Between the lack of Snap and lower screen resolutions, there’s not much of a reason to buy a small Windows 8 tablet instead of an iPad Mini, Kindle Fire or Nexus 7. Microsoft would need a killer feature – tight Xbox integration, perhaps – to stand out.

In any case, don’t expect 7- or 8-inch Windows tablets to arrive soon. As Bott points out, the smaller slates will likely launch alongside Windows Blue, an update for Microsoft’s operating system due this summer.

Review: Polk Audio's UltraFocus 8000 Active Noise Canceling Headphones

One way to tell a quality set of headphones is if they make you want to go and listen to different songs just to see how they sound. After about twenty minutes of going through recently-added tracks on Polk Audio's UltraFocus 8000 Active Noise Canceling Headphones, I quickly made my way to Spotify, wondering what new sounds could be uncovered in some old favorites. 

At $300, Polk's UltraFocus 8000s aren't the sort of headphone purchase one undertakes lightly. These are some serious noise-canceling cans meant for serious listening, capable of pumping out up to 15dB of noise cancelation and putting the listener into his own little audio bubble. Polk touts the 8000s' "Made for iPhone" control features, but the headset comes with a wealth of connectors, making it suitable for use airplane ports, home audio ports, and so forth.

So just what does that $300 get you? For starters, a pretty sturdy and good-looking set of ear covers.

Design

Understated and contradictory, one might say, are the best terms to describe the aesthetic of the UltraFocus 8000. With black as the dominant color, the headphones have an air of solidness, with a good deal of quality thanks to the stainless steel and aluminum highlights. 

They are by no means the prettiest headphones you'll lay eyes on, but neither will you be ashamed to pull them out for a listen. This is largely a case of form driving impression, as the 8000s, from the moment you open the box, look as solid and reliable as Polk would have you believe.

Strange, then, that the over-ear cans are such a flat, matte plastic. High quality plastic, no doubt, but plastic nonetheless. This is somewhat in keeping with other headphone manufacturers, but we must admit a bit of disappointment that recurred any time we touched the cans to control playback.

Speaking of controls, these presented one of our first complaints about the 8000s. The implementation of the iOS-compatible music controls works much like it does with the remote on a set of EarPods. Click the play/pause button once to play or pause, twice quickly to skip forward a track, or thrice quickly to skip backward a track. The headphones' iOS and Mac-compatible controls are located on the right ear can in the form of "control Braille" tactile indicators. The intent is to make them easy to feel, but in practice these raised plastic ovals feel ugly to the touch. Given that there are few features to activate — Play/Pause/Skip, Volume Up, Volume Down, and Push-To-Hear Ambient sound — the addition of the "Braille" controls seems a bit unnecessary, especially considering that the same functionality could have been easily accomplished by taking the intuitive step of making the icons themselves touch-depressible. 

Another minor complaint was Polk's choice to go with AAA batteries as a power source. The UltraFocus 8000 gets, according to Polk, about 40 to 60 hours of Active Noise Canceling play on two AAA batteries. That noise canceling is turned on by way of a somewhat inconvenient switch, and the 8000 lacks any automatic power-off function. Those facts together mean that 40 to 60 hours of battery life can be eaten up relatively quickly if, say, you forget to power off the headphones before stowing them. 

Add to that the fact that "noise canceling mode" is the only mode allowing you to actually listen to your music — run out of battery and you've just got a set of earmuffs — and you can see why we found ourselves wishing that Polk had gone for a rechargeable internal battery. 

That all may seem like a healthy list of complaints, but there were more things we liked about the UltraFocus 8000 than we disliked. In addition to the carbon fiber in the headband and the steel and aluminum aspects, the unit's detachable cable features a StrainGuard design with a Kevlar core. This keeps the cord from pulling apart at common failure points. We didn't put the cord through any sort of torture test, but we've got to say — having suffered through our fair share of frayed and failing cables — we're encouraged by the inclusion of this tech. 

The headphones are also pretty light considering their size. You're never going to forget that they're on your head, but they're not an unwieldy weight, and Polk's Perfect Fit Headband gives a "comfortable, secure fit" just as advertised. 

Of course, the things we liked most about the UltraFocus 8000 had more to do with its function than its looks. It functions great, thanks to some terrific tech built in.

Technology

The 8000s feature a range of different Polk technologies. The company's product page for the headset goes on for a bit about Active Dynamic Balance Polymer Drivers and Dynamic Balance Design Technology. The former miniaturizes the sort of driver used in a full-sized loudspeaker; the latter is a Polk-patented analytical technique that looks at a speaker's entire electro-acoustic and mechanical system to identify elements that might reduce performance. All one really needs to take away from this is that these features, in combination with the noise-canceling tech, produce a remarkably lifelike and crisp sound.

There is, though, one technology we wish Polk had managed to put into these headphones: Bluetooth. If you're listening to the 8000s on a non-mobile device — say, plugged into your computer — it's disappointing to be unable to get up and walk around without having to stop the music. 

While the music is playing, though, you're in for a treat.

Performance

It was really fun to put these headphones through their paces. As we said before, it only took a few minutes with the UltraFocus 8000 before we took to Spotify's bottomless well of tunes. Our audio tests, therefore, used Ogg Vorbis files of about 320kbps in quality. We also listened to an assortment of MP3s and iTunes AACs, those of varying but usually high quality. 

Our non-music tests for for the UltraFocus 8000 used the rainstorm generator from Simply Noise, several HD episodes of The Walking Dead, and a DVD copy of Megamind.

As we said before, testing these headphones out was a pleasure. We don't like the fact that noise canceling mode is the only way one can listen to content, but what you get with noise cancelation activated is fantastic. Others have noted an audible hiss during playback when noise-cancelation is on, but that was barely perceptible for us during most music playback and only slightly audible noticeable during video playback. We did notice an occasional clicking or buzzing when ANC was active but no content was playing. That could be a bit annoying for people looking for full-on silence, but it didn't seem a major issue in our tests.

With ANC active, the auditory component of the outside world largely disappears. Turn the volume up in a noisy setting, and you may as well be in sensory deprivation tank. We've missed loud, nearby conversations in the course of our tests, just by switching ANC to the On position. 

When you actually need to hear what's going on, the UltraFocus 8000's Push-To-Hear Ambient Control mutes the music and uses the noise cancelation microphones to amplify the world outside your audio bubble. This mode produces clear and recognizable sound, but the music is still audible in the background, which can be distracting.

Our music tests took the UltraFocus headphones through a range of genres. Thump-heavy hip-hop, drum and bass, retro and modern pop, jazz, classical, and healthy servings of many flavors of rock: just about everything we threw at these headphones sounded fantastic. Subtle elements in tunes are crisp and clear, and we learned a few new things about some of our favorite songs. 

A track like Avishai Cohen's version of "Alfonsina y el Mar," on a lesser headset, might sound rather straightforward. Listening on the 8000s, a very noticeable echo becomes apparent. Likewise, multilayered pop in the vein of Justin Timberlake's recent work with Timbaland takes on a whole new dimension, as the numerous small bits that make up a track come into stark relief. 

We could go on like this for ages. Toss the 8000s a track like Toumani Diabaté's "Tapha Niang," and the instrumentation comes through just as clearly as do the vocals. Throw on some drum and bass, and the bass pounds just as much as the drums pop. Rock guitars growl and classical strings whine and it's an all around immersive experience that very much justifies the price you'll pay for this headset.

We were particularly impressed by the unit's high-volume performance. Whereas some premium headphones will see clear distortion — in bass or vocals — at higher volumes, the UltraFocus 8000s performed admirably. 

In non-music tests, we saw no drop-off aside from the aforementioned slight hiss. This could be something of a bother if you're just using the headphones to block out ambient noise or to listen to an audiobook. Again, though, it doesn't seem like a dealbreaker in the least. The 8000s provide an immersive sound environment for non-music content: heightening the tension for a zombie drama and the relaxation for a simulated rainstorm. 

Bottom line

As we said early in this review: at $300, these headphones aren't exactly an impulse buy. Should you buy them? That depends. If you want some all-purpose cans, you'll likely want to look elsewhere. If you're looking for a reasonably-priced, audiophile-quality sound experience, these might be the ones for you. 

We've tried out better premium headphones, ones that address most of our issues with Polk's set — namely, Parrot's Zik noise-canceling cans, which feature the Bluetooth connectivity that these are sorely missing — but those, by and large, are prohibitively expensive. Leaving aside our issues with the 8000s, we can solidly recommend them to sound consumers in search of a quality listening experience. They'reavailable through Amazon, as well as through Polk's website.

Score: 4 out of 5

Pros

• Excellent sound reproduction
• Solid build quality
• Assortment of attachments
• Great noise cancelation

Cons

• No rechargeable battery
• No Bluetooth
• No playback unless using battery-powered noise cancelation
• No auto-power off

USPTO denies Apple's trademark application for iPad mini

The United States Patent and Trademark Office has denied Apple's request for a trademark on the term "iPad mini," finding that the "mini" portion of the name is "merely descriptive" of goods or services available in miniature forms.

The USPTO's decision came in the form of a letter to Apple (via Forbes), in which the application reviewer refused registration of the trademark on grounds that "the applied-for mark merely describes a feature or characteristic of applicant's goods." The USPTO deems a mark "merely descriptive" "if it describes an ingredient, quality, characteristic, function, feature, purpose, or use of an applicant's goods and/or services."

Apple filed a trademark application for the iPad mini name shortly after it launched the device last year. The refusal letter, TechCrunch notes, was mailed to Apple on January 24, but only made public in the last few days. 

In denying Apple's request, the reviewer notes that "the term 'MINI' in the applied for mark is also descriptive of a feature of applicant's product. Specifically, the attached evidence shows this wording means "something that is distinctively smaller than other members of its type or class'. See attached definition. The word 'mini' has been held merely descriptive of goods that are produced and sold in miniature form."

The reviewer also attaches multiple examples pulled from the Internet of a range of products marketed with the term "mini" attached to their names in some fashion. The commonness of the term, the reviewer argues, means that Apples use of the term signifies only "a small sized handheld tablet computer," and does not constitute "a unitary mark with a unique, incongruous, or otherwise nondescriptive meaning in relation to the goods and/or services." 

The January letter also provided additional grounds for refusal of the application. A "web catalog or web page specimen," the letter says, "is not acceptable to show trademark use as a display associated with the goods because it fails to include a picture or a sufficient textual description of the goods in sufficiently close proximity to the necessary ordering information." Apple had submitted the iPad mini trademark application with images from its product webpages. Patently Apple notes that Apple commonly does so when submitting applications, and the USPTO does not seem to explain how this case is any different.

Apple has already secured a trademark on "iPad" in the United States and in multiple other countries around the world. The iPad maker can still amend its application for a trademark, provided it can prove that "a portion of the mark has acquired distinctiveness." Apple has until July 24 to better explain how "iPad mini" is sufficiently different from the larger-sized iPad to merit its own trademark.

Samsung filing confirms: Apple could seek even more damages in new tria

Samsung's move to secure a new trial for part of the damages it owes Apple could lead to Apple netting an even higher judgement than the $1.05 billion it already won, as the South Korean conglomerate admitted in a court filing on Friday.

Following Judge Lucy Koh's decision to vacate more than 40 percent of the initial $1.05 billion judgment against Samsung due to improper assignment of damages for some devices, Samsung has been pushing for a wholly new trial for the vacated figure. 

Samsung's argument is that the matter is not so simple as having a new jury decide on a damages figure. The new jury, Samsung argues, must reconsider whether the 14 products included in the vacated sum actually infringe on Apple's patents. 

On Saturday, FOSS Patents's Florian Mueller pointed out a Samsung filing from Friday. In the late-Friday filing, Samsung notes that "Apple can seek even more damages on these products in the new trial," should the court agree to a full retrial for the affected products. 

The acknowledgement of potentially higher damages came in a reply brief meant to bolster its move for a partial final judgment and a stay pending appeal of that partial judgment. The filing also addressedApple's recent filing pointing out a possible $85 million court error in vacating damages for the Galaxy S II AT&T and Infuse 4G. 

Can Samsung’s Galaxy Compete With Apple At This Price?

“If you’re looking for Samsung’s new Galaxy S 4 to define a novel new era of smartphone greatness, it’s time to temper your expectations,” wrote CNET just after the launch of the company’s latest attempt to increase its dominance of the $358 billion global market. But Samsung (SSNLF.PK)  — and its wireless partnerAT&T (NYSE:T) — seem to have a lot of confidence that the device will appeal to customers, even if it received a rough welcome from analysts. The carrier- manufacturer duo pushed the device’s base price up $50 over the its predecessor and Apple’s(NASDAQ:AAPL) rival iPhone 5S.

At AT&T, the Galaxy S 4 will cost $250 with a two-year contract and be available for pre-orders beginning on April 16 — although the wireless carrier has not yet announced the actual released date for Samsung’s next flagship phone, noted Time.

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Deutsche Telekom’s (DTEGY.PK) T-mobile has announced pricing as well, according to the publication. Earlier this week, the carrier told analysts at an event in New York that it would be styling itself as the “uncarrier,” AT&T and Verizon (NYSE:VZ) dominate the telecommunications sector with their duopoly, and, in following what has become the industry standard, they both have organized their fees for calling, texting, and data usage into strict contractual plans. But T-Mobile has decided to change the status quo. In an attempt to attract customers from its larger rivals, it decided to eliminate annual contracts and fees normally associated with mobile carriers. Coupled with this change in pricing, the wireless carrier will also get rid of cell phone subsidies in order to give customers lower service prices…

The carrier — which recently made a deal with Apple to offer the iPhone on its network — will offer the Galaxy S 4 beginning on May 1 for a price of $99 under the new subsidy-free plan.

Sprint, Verizon, and U.S. Cellular will also sell Samsung’s new smartphone.

Samsung’s Galaxy S 4 looks similar to the company’s previous device, but with a few key differences. The phone will sport a 5-inch, 1080-pixel display set into a chassis of approximately the same size as the S 3. It will also have a faster processor, an improved camera, and eye-tracking software.

The Galaxy S4 is the first of three Samsung handsets that will be released this year with the aim of taking Apple’s smartphone success down a notch. But early reviews indicate that Samsung’s latest shot at the iPhone was merely a glancing blow in the ongoing barrage of competitive devices released by both companies, each attempting to gain a secure position at the top of the global smartphone standings.

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Smartphone rankings reflect this ongoing scuffle for positioning; Samsung’s Galaxy S3 sold fewer units than Apple’s iPhone 5 in the fourth quarter of last year, but Samsung became the largest smartphone manufacturer last year; shipping 29 percent of all smartphones globally, compared to Apple’s 21 percent.

Cassidy on Nolan Bushnell: 'Steve was difficult,' says man who first hired Steve Jobs

Somehow even when he's sitting still, Nolan Bushnell seems to be in constant motion.

He's like a human "Pong" game, bouncing from one thing to the next, not randomly but with purpose, going from cofounding Atari to starting kiddie restaurant Chuck E. Cheese's to helping incubate dozens of other companies to a brief thing with high-tech eatery uWink to now launching education startup Brainrush and writing a book, "Finding the Next Steve Jobs."

"I like to say that I have five-year ADD," Bushnell jokes, which is to say he likes to start things and look for new ideas. He likes to change it up. It keeps him sharp. And happy.

"Get out of your comfort zone and do things that you think you couldn't do," he says when we meet for coffee on the day his book is released. "It's so different for me to be in a world of letters. I've always been a tech-head."

Yes, a tech-head. When he helped start Atari in 1972, Bushnell cemented his reputation as a valley pioneer. He'll forever be associated with Pong, an early Atari game designed by Al Alcorn, which ended up in bars across America.

Do strangers ever come up to you to share their "Pong" stories, I ask?

"Incessantly," he says, explaining the game's ice-breaking potential at singles bars. "The number of people who met their husband or wife playing 'Pong' is extraordinary."

Atari started as a gaming company when

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gaming barely existed. And the company culture reflected the freewheeling style of working hard and playing hard that was embraced by dozens of tech startups. Getting hired at Atari wasn't about who you were but about what you could do, a theme Bushnell hits again and again in the book, which he wrote with author Gene Stone. The idea, the book preaches, is to find creative people and restrain yourself from smothering their creativity. Little else -- personality, skills, experience -- matters.

And yes, it was at Atari that Bushnell hired Steve Jobs, who was 19 and not a very pleasant fellow. In fact, Bushnell is one of the few people who actually hired Jobs. (Jobs, as CEO of Apple (AAPL) and Pixar and founder of Next, was usually the one doing the hiring.)

"Steve was difficult but valuable," Bushnell says. "He was very often the smartest guy in the room, and he would let people know that." But Bushnell remains awestruck by Jobs' success and the way he grew into not only a top executive, but a visionary -- a rare combination.

Still, I ask, do we really need another book

Nolan Bushnell is photographed in Palo Alto, Calif. on Tuesday, March 26, 2013. Bushnell is the founder of Chuck E. Cheese restaurants and the co-founder of Atari. He has a new book out, "Finding the Next Steve Jobs: How to Find, Hire, Keep and Nurture Creative Talent". (Gary Reyes/ Staff) ( Gary Reyes )

with "Steve Jobs" in the title?

The publisher, Net Minds, likes titles that include "Steve Jobs," Bushnell explains, but also there is something to be learned from a guy who was creative and unconventional. Bushnell is convinced that there are all sorts of creative and unconventional people out there working at companies today. The problem is that corporate managers don't recognize them. Or when they do, they push them to conform rather than create.

"Some of the best projects to ever come out of Atari or Chuck E. Cheese's," he says, "were from high school dropouts, college dropouts. One guy had been in jail."

Bushnell -- who now lives with his wife, Nancy, in Los Angeles -- isn't necessarily one to look back. But he does carry some fond memories and valuable lessons from his Atari days. The company, like all companies, encountered turbulence. Bushnell sold it to Warner Communications in 1976 and was ultimately forced out. Atari slowly reconfigured and unraveled after Bushnell left. Sure, it was hard to watch.

"I had an awful lot of my soul invested in Atari culture," he says.

Bushnell celebrated his 70th birthday last month. His eight kids are grown (the youngest is 19). But he has no plans to slow down and he practically laughs at the notion of retirement.

"Of course not," he says when I ask about retirement. He swears that he is happiest when he's working on something -- and maybe keeping one eye out for the next thing.

"I literally don't know the difference," he says, "between my work and my play."

OK, so what about legacy, I wonder. Of all these enterprises and operations, I ask, what would you most like to be remembered for?

"I want to be known for Brainrush," he says initially. The education startup, which deploys game theory to teach subjects in quick bits, is what he's working on now, after all. But then he thinks for another second. "I guess I'd like to be known for being an innovator, fostering creativity, thinking outside the box," he says. "You know, keeping people playful."

I'd say he's got a shot at that. But maybe it's too early to say. After all, who really knows what comes next for Nolan Bushnell?

Contact Mike Cassidy at mcassidy@mercurynews.com or 408-920-5536. Follow him at Twitter.com/mikecassidy.