Monthly Archives: April 2016

‘Star Trek’ Lawsuit: The Debate Over Klingon Language Heats Up

29 April 2016

From The Hollywood Reporter:

When Paramount and CBS ended last year with a lawsuit over a crowdfunded Star Trek fan film titled Axanar, the two studios probably had no idea that they were about to get mired in an esoteric legal debate about the protectability of the Klingon language. But that’s exactly what’s happened, and with the language of digital coding hanging in the background, a California federal judge’s forthcoming decision could hold significance — so large, in fact, that this otherwise run-of-the-mill copyright action has now drawn an amicus brief from a language society that quotes a Klingon proverb translated as “we succeed together in a greater whole.”

To review, after the Star Trek rights holders filed their complaint, the defendant production company demanded particulars of the franchise’s copyrighted elements. In response, Paramount and CBS listed a lot, but what drew most attention was claimed entitlement to the Klingon language. The defendant then reached back to a 19th century Supreme Court opinion for the proposition that Klingon is not copyrightable as a useful system.

On April 11, that drew an entertaining response from the flummoxed plaintiffs.

“This argument is absurd since a language is only useful if it can be used to communicate with people, and there are no Klingons with whom to communicate,” stated a plaintiffs’ brief authored by David Grossman at Loeb & Loeb. “The Klingon language is wholly fictitious, original and copyrightable, and Defendants’ incorporation of that language in their works will be part of the Court’s eventual substantial similarity analysis. Defendants’ use of the Klingon language in their works is simply further evidence of their infringement of Plaintiffs’ characters, since speaking this fictitious language is an aspect of their characters.”

Before U.S. District Judge R. Gary Klausner gets a chance to rule on a motion to dismiss, he’s now being asked permission to review a friend-of-the-court brief from the Language Creation Society.

The brief, authored by Marc Randazza, begins with background that the Klingon language was invented in 1984 by Marc Okrand for Star Trek III: The Search for Spock.

“Before that, when actors played Klingons in Star Trek television programs or movies, they simply uttered guttural sounds or spoke in English (Federation Standard),” writes Randazza. “Given that Paramount Pictures commissioned the creation of some of the language, it is understandable that Paramount might feel some sense of ownership over the creation. But, feeling ownership and having ownership are not the same thing. The language has taken on a life of its own. Thousands of people began studying it, building upon it, and using it to communicate among themselves.”

. . . .

Now, with 250,000 copies of a Klingon dictionary said to have been sold, Klingon language certification programs being offered, the Microsoft search engine Bing presenting English-to-Klingon translations, one Swedish couple performing their marriage vows in Klingon, foreign governments providing official statements in Klingon and so on, the Language Creation Society is holding up Klingon as having freed the “bounds of its textual chains.”

Ultimately, the amicus brief comes back to the theory that Klingon is not copyrightable.

“What is a language other than a procedure, process, or system for communication?” asks the society. “What is a language’s vocabulary but a collection of words? The vocabulary and grammar rules of a language provide instructions for a speaker to articulate thoughts and ideas. One cannot disregard grammatical rules and still be intelligible, and creating one’s own vocabulary only worked well for the Bard. Vocabulary and grammar are no more protectable than the bookkeeping system in Baker v. Selden, 101 U.S. 99, 101 (1879).”

Link to the rest at The Hollywood Reporter and thanks to Antares for the tip.

Parts of the amicus brief are written in Klingon.

Jeff Bezos just made $6 billion in 20 minutes

29 April 2016

From Fast Company:

Not a bad afternoon’s work. The Amazon CEO saw his 82.9 million shares increase in value by $6 billion as the company’s shares jumped over 10% in after-hours trading on earnings results that beat expectations.

Link to the rest at Fast Company

PG would love to know how much Amazon paid authors via KDP.

Amazon tablet shipments surge 5,000 percent YoY

29 April 2016

From ZDNet:

Tablet shipments declined more than 14 percent worldwide during the first quarter of 2016, according to the latest stats from IDC.

The research firm said the decline was due to general seasonality combined with an overall disinterested customer base.

. . . .

As for the vendors, the most dramatic year-over-year change comes from Amazon, which increased tablet shipments by an astronomical 5421.7 percent to claim the No. 3 spot on the list. The tech giant wasn’t even included in the top five tablet vendors in the first quarter of 2015.

Amazon’s growth is due primarily to its range of slate tablets, such as the $49.99 version of Amazon’s Fire tablet, which have become synonymous with the low-end of the market.

For Amazon, the low price is part of a strategy that CEO Jeff Bezos has referred to as “the Amazon Doctrine.” In a nutshell, Amazon cares less about tablets as end products and more as direct commerce channels for users to buy products from Amazon.

. . . .

Apple and Samsung still claim the No. 1 and 2 spots, respectively, however Apple’s tablet shipments declined 18.8 percent, while Samsung’s dropped just over 28 percent annually.

Link to the rest at ZDNet

Amazon.com Announces First Quarter Sales up 28% to $29.1 Billion

28 April 2016

From the Amazon Media Room:

Amazon.com, Inc. today announced financial results for its first quarter ended March 31, 2016.

Operating cash flow increased 44% to $11.3 billion for the trailing twelve months, compared with $7.8 billion for the trailing twelve months ended March 31, 2015. Free cash flow increased to $6.4 billion for the trailing twelve months, compared with $3.2 billion for the trailing twelve months ended March 31, 2015. Free cash flow less lease principal repayments increased to $3.5 billion for the trailing twelve months, compared with $1.5 billion for the trailing twelve months ended March 31, 2015. Free cash flow less finance lease principal repayments and assets acquired under capital leases increased to $1.6 billion for the trailing twelve months, compared with an outflow of $1.2 billion for the trailing twelve months ended March 31, 2015.

. . . .

Net sales increased 28% to $29.1 billion in the first quarter, compared with $22.7 billion in first quarter 2015. Excluding the $210 million unfavorable impact from year-over-year changes in foreign exchange rates throughout the quarter, net sales increased 29% compared to first quarter 2015.

Operating income was $1.1 billion in the first quarter, compared with $255 million in first quarter 2015.

Net income was $513 million in the first quarter, or $1.07 per diluted share, compared with net loss of $57 million, or $0.12 per diluted share, in first quarter 2015.

“Amazon devices are the top selling products on Amazon, and customers purchased more than twice as many Fire tablets than first quarter last year,” said Jeff Bezos, founder and CEO of Amazon.com. “Earlier this week, the $39 Fire TV Stick became the first product ever — from any manufacturer — to pass 100,000 customer reviews, including over 62,000 5 star reviews, also more than any other product ever sold on Amazon. Echo too is off to an incredible start, and we can’t yet manage to keep it in stock despite all efforts. We’re building premium products at non-premium prices, and we’re thrilled so many customers are responding to our approach.”

. . . .

  • Amazon was ranked #1 in corporate reputation among the 100 most visible companies in America, according to the 23,000-person Harris Poll. Amazonwas also ranked #1 on the Reputation Institute’s U.S. RepTrak 100 list of the most reputable companies, which is based on more than 83,000 ratings.
  • U.K. consumers ranked Amazon #1 in customer satisfaction in a nationwide poll from the Institute of Customer Service. And for the second year in a row, customers selected Amazon.in as India’s most trusted online shopping brand, according to an annual Trust Research Advisory survey.
  • The Amazon Global Store on Amazon.cn has grown to over 10 million items, providing Chinese customers with an easier and more convenient shopping experience with authentic products curated from the Amazon.com website.

. . . .

Second Quarter 2016 Guidance

  • Net sales are expected to be between $28.0 billion and $30.5 billion, or to grow between 21% and 32% compared with second quarter 2015.
  • Operating income is expected to be between $375 million and $975 million, compared with $464 million in second quarter 2015.

 

Link to the rest at Amazon Media Room

The Human Brain as a Word Cloud

28 April 2016

From The Wall Street Journal:

The human brain is a living word cloud, turning spoken language into intricate neural patterns of meaning that we all appear to share, new research suggests.

In research reported Wednesday in Nature, neuroscientists at the University of California at Berkeley created a comprehensive atlas of these patterns, showing how shades of meaning in natural speech stir the brain.

To make it, the researchers employed an imaging method known as functional MRI to identify places throughout the brain stirred by the meaning of words in stories told aloud. In the pulsed patterns of neural blood flow monitored by the imaging device, they found a tapestry of responses with narrative threads reaching into more than 100 areas in the cerebral cortex.

. . . .

“These are maps of the meaning in language, not the words themselves,” said UC Berkeley neuroscientist Jack Gallant, a senior researcher in the study. “The brain somehow represents the concepts in this smooth gradient distributed across the brain.”

. . . .

In the new study, volunteers were brain-scanned as they listened to seven stories between 10 minutes and 15 minutes long, originally recorded on the Moth Radio Hour produced by Atlantic Public Media.

These autobiographical narratives ranged from a story of a man who recovers repressed childhood memories to a tale told by a woman who briefly became an exotic dancer.

All told, the anthology comprised more than 10,000 words of narrative speech. The researchers grouped the words into 200 clusters of meaning, such as family, violence, music or touch. Then, as the seven volunteers listened inside the scanner, the researchers calculated the relative strength or weakness of the brain’s response to these concepts at thousands of points in the cortex.

. . . .

The new map revealed a much more extensive landscape of meaning that encompassed both sides of the brain, with a pattern that listeners shared.

Link to the rest at The Wall Street Journal (Link may expire)

I went to a bookstore

28 April 2016

I went to a bookstore and asked the saleswoman, ‘Where’s the self-help section?’ She said if she told me, it would defeat the purpose.

George Carlin

The guru on how to get your book published

28 April 2016

From NUVO:

You may know Jane Friedman if you have ever browsed through The Great Courses. Hers are some of the highest rated, with titles like How to Get Your Book Publishedand Publishing 101. A Hoosier, Friedman has been writing and having her work steadily published since college. In 2006 she wrote her first non-fiction work that was a guide to writing. We spoke with her about some of the dos and don’ts when weeding through the press world.

NUVO: What are the biggest mistakes you see authors make starting out?

Jane Friedman: I would say the biggest mistake by far is a lack of patience with the process. They send out maybe one query, and they haven’t even researched who that query should go to. Maybe the query isn’t even written that well in the first place, and they get frustrated really quickly and give up. And I would say, as of today, most people decide to self-publish and then they figure out that wasn’t the right choice much later. There is usually a lack of patience with not just the publishing process like I just described. They will be frustrated with having to market their work and pitch their work, but some people pitch too soon. They haven’t allowed themselves time as a writer to develop their craft.

NUVO: How have you seen book marketing change?

Friedman: Well I think there has always been a responsibility for the author to be a promoter of their work. Today, because of digital media, digital marketing and promotion, there are a lot of things that are incumbent on the author to do that in fact wouldn’t even be appropriate for the publisher to do on their behalf. The publisher doesn’t want to pretend to be you on Twitter or on Facebook. They don’t want to be, in those cases, the owner of your website. These are brand properties that belong to the author and it’s up to the author to cultivate them. These are things that span over … an author’s career. They are not specific to a single book … So the author needs to be thinking abut developing those … Not just for one book but very long term. Years really.

NUVO: How would you categorize the current state of publishing?

Friedman: Eh, schizophrenic. (Laughs.) Because there are so many more ways to publish a book than there ever was. It used to be that the path to getting published was pretty narrow, pretty fine, and you weren’t going to work outside those boundaries. A few people could do it and a few exceptional case studies. But by and large the only way to be a successful published author was to go to a traditional publisher or find an agent and take as long as it might have taken for that book to find its readership. Today, self-publishing is generally conceived as just as legitimate a way, but I don’t think it’s any easier. I don’t think it’s the easier path than traditional publishing. I think you find about the same success rate on either side of the equation.

Link to the rest at NUVO

Amazon Liable for Children’s In-App Purchases, Court Rules

28 April 2016

From The Wall Street Journal:

Amazon.com Inc. is liable for in-app purchases children made years ago without their parents’ authorization, a federal court ruled late Tuesday.

The Seattle retailer didn’t provide sufficient safeguards to prevent children from making purchases within apps that were free to download, according to the U.S. District Court for the Western District of Washington state. The Federal Trade Commission filed the case against Amazon in 2014, citing thousands of complaints about unauthorized in-app charges for virtual goods or services, totaling hundreds of dollars in some cases.

“Given the design of the Appstore and procedures around in-app purchases, it is reasonable to conclude that many customers were never aware that they had made an in-app purchase,” the court said.

Amazon has since taken measures to prevent such purchases and said it has reimbursed customers who lodged complaints. But the ruling means Amazon will face additional monetary penalties, which will be determined later.

. . . .

The FTC had reached settlements with Apple Inc. and Alphabet Inc.’s Google in 2014 about similar unauthorized in-app purchases for $32.5 million and $19 million, respectively. But Amazon chose instead to challenge the agency in court. Today, those app stores require customers to type in their password for in-app purchases, which may include new levels or characters in a game or additional music options.

Link to the rest at The Wall Street Journal (Link may expire)

Facebook: The World’s Largest Bookstore?

28 April 2016

From Digital Book World:

A month or so ago, Facebook reported its earnings for the fourth quarter of 2015, and let’s just say they crushed the ball. Knocked the cover off. Pointed to the bleachers and then hit it out of the park.

The big moneymaker was its burgeoning video ad business. Facebook states that people are watching 100 million hours of video per day on its social platform. More than 500 million people watch Facebook video every day. Just let that sink in. Facebook isn’t simply a video discovery platform; it’s becoming the video discovery platform. And it’s still growing.

. . . .

While people in the publishing industry may find this interesting, most won’t find it particularly relevant. To ignore this news, however, would be a monumental mistake. Don’t underestimate what Facebook is and what it is becoming. Facebook is the world’s best discovery platform, and it makes money by going after digital content that keeps people spending more time on Facebook. And after video, there is a clear line to ebooks.

As dominant as Amazon currently is in ebooks, the retailer’s major weakness is discovery. More often than not, users have to find a book somewhere else and then go to Amazon and purchase it. There are additional, unnecessary steps in their process, and the company has no easy way to remedy it.

. . . .

Facebook has more than a billion users on its site every day. Friends and family are sharing everything they are watching and reading, and Facebook is getting better and better at finding ways to keep people on the site. Articles are short reads and people can leave quickly. But if Facebook had a reader for ebooks, the amount of time people would stay on the site would climb exponentially.

. . . .

The bookstore of the future is not centralized. It is decentralized, and it will give readers the ability to buy their books wherever they are, whenever they want. Readers will get their ebooks over wifi at Starbucks as a reward for buying their Under Armour running gear from the local community college, in the Target check-out line, in their McDonalds Happy Meal, or on Facebook—and it will all be readable on one e-reader. Perhaps the Facebook e-reader. And it will give users the ability to read and share in one location.

While Facebook getting into ebooks would not decimate Amazon’s bottom line—as most of the retailer’s revenue comes from various others sources—it would be an emotional kick in the groin. Bezos built his business on the foundation of books. And Zuck could usher in a changing of the guard.

Link to the rest at Digital Book World

A reminder: PG does not always agree with items he includes on The Passive Voice.

Congress May Be About to Shake Up Trade Secret Law: Is That a Good Thing?

28 April 2016

From The Wall Street Journal:

Federal civil law governing intellectual property has long been a three-legged stool: copyrights, patents and trademarks. Unless it’s tabled, legislation advancing in Congress would add a fourth one: trade secrets.

Trade secrets are like patents, but without the strict criteria for novelty and usefulness and without an expiration date. They’re basically confidential, valuable information that gives a company a competitive edge. Famous examples are the precise formula for Coca-Cola and the algorithms that Google uses to sort and filter the Internet.

But a main difference between trade secrets and other areas of IP is how legal fights over them are decided. Trade secret disputes between companies, unlike the three other legs, are brought in state courts.

. . . .

The bill has been described as the “most significant expansion of federal law in intellectual property since the Lanham Act in 1946.”

The DTSA would allow companies to sue for trade-secret theft and pursue damages in federal courts. “The DTSA would require evidence of actual or threatened misappropriation before a court may issue an injunction to prevent it,”

. . . .

Here’s Covington & Burling LLP attorney Richard A. Hertling, testifying before Congress on behalf of another business advocacy coalition in 2014:

Civil trade secret laws originated at the state level, in an era when trade secret theft was largely a local matter. State trade secret laws work well when, for instance, an employee of a local business steals a customer list and takes it to the business down the street. For companies that operate across state and national borders and have their trade secrets threatened by competitors around the globe, the array of state laws is inefficient and inadequate…

The DTSA has a lot of political support but also some critics. Some IP experts say that there’s already a lot of uniformity in state law. The addition of a whole new law, one that would be combined but not replace state law, would stretch adjudication costs and time by giving plaintiffs another forum to take their complaints.

Link to the rest at The Wall Street Journal (Link may expire)

This legislation passed the House of Representatives almost unanimously yesterday and the President is expected to sign it.

Here’s the definition of a trade secret from the new legislation:

The DTSA broadly defines the term “trade secret” to mean “all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if—(A) the owner thereof has taken reasonable measures to keep such information secret; and (B) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, the another person who can obtain economic value from the disclosure or use of the information.”  Although this definition is broad and certainly includes abstract ideas and laws of nature, it might not encompass information that is only stored in the human mind.

Link to more detail at Patently-O

Got that? Information “stored” in your mind might or might not be owned by someone else.

Tech companies have been using trade secrets for some time to discourage competing companies from hiring valuable employees.

While a business may be exposed to liability for misappropriation by the actions of its overzealous employees, the risk arises more frequently in the hiring process.  New employees with knowledge of a former employer’s trade secrets, for example, may expose the new employer to liability by using or disclosing secrets in the course of their employment.  It is not necessary that the new employee actually use or disclose a former employer’s trade secrets to expose a subsequent employer to liability.  An employer can be enjoined from hiring a new employee where it is “inevitable” that the employee will use or disclose a former employer’s trade secrets in the course of subsequent employment.

Link to more detail at Fairfield & Woods

While PG has perused the occasional confidentiality clause in publishing contracts, he has never seen explicit obligations placed on an author to keep trade secrets of a publisher safe.

Unfortunately, PG predicts this new legislation will catch the attention of counsel for publishers. More verbiage will be added to the contracts publishers want authors to sign. Perhaps by claiming royalty statements or emails from editors contain trade secrets, some publishers will seek another hammer to keep their authors barefoot and pregnant.

It is in the nature of major new laws that several years are required for trial and appellate courts to apply the broad legislative language to the particular facts of individual cases. Court opinions under state law protecting trade secrets may provide some guidance, but in the face of brand new statutory language, it will be easier to argue that definitions and principles developed under state law won’t apply.

This period of some uncertainty about what is and is not protected and/or permitted will give the holders of trade secrets (who usually have more resources than individuals who are employees or contractors) an additional hammer to wave in the direction of those individuals. Inevitably, more than a few companies will overreach. Trade secrets litigation is already expensive and will become more so in the near future.

And, yes, trade secrets laws do limit the First Amendment rights of individuals to freedom of expression, but this exception is well-established under cases arising from state trade secret laws.

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