Legal Stuff

From The Economist:

In 2019 a federal judge named Alan Albright gave a presentation to a group of lawyers. His courthouse in Waco, Texas, where he is the only judge, sits near a sweet shop. The talk was called “Why You Should File Your Next Patent Case Across the Street from the ‘Hey Sugar’”.

The intellectual-property lawyers who heard his pitch were apparently persuaded. Less than two years after being appointed to the bench, he had nearly 20% of the country’s patent cases, according to Lex Machina, a legal-analytics firm. By 2021, he had 23%. Trial teams of white-shoe attorneys from New York and California, representing clients such as Google and Intel, began streaming into Waco, a city of 140,000 people in central Texas.

Bill Wetterman, a real-estate developer and Waco native, spotted a business opportunity. In 2021 he opened up Legal Lawfts, rentable office space—“war rooms”, in the parlance—that come outfitted with security cameras, back-up internet and, by request, gluten-free Oreos.

In Waco Mr Wetterman’s competitors include Connect Litigation, a firm that runs a few war rooms downtown. But Connect focuses its operations about 200 miles north-east. The “patent docket” is a familiar term in Marshall, a faded but quaint town of about 24,000 people near the Louisiana border. Between 2000 and 2020, more than 17% of all patent cases filed in federal court were in the Eastern District of Texas—roughly 13,500. By comparison Delaware, where most big American companies are incorporated, had fewer than 10,000 cases; the Northern District of California, where Big Tech firms are based, had fewer than 5,000.

T. John Ward, Marshall’s federal judge from 1999 to 2011, is responsible for the town’s puzzling popularity. Patent cases are technical. Judges must referee the sharing of sensitive source code, for example: plaintiffs argue it will prove their case; defendants resist, fearing their secrets will leak. They also interpret what a patent’s words actually mean, which can be “outcome determinative”, says Mark Siegmund, a patent litigator in Waco. Cases can also take years to get to trial.

Mr Ward learned that Northern California’s court had implemented local rules to build what lawyers call “certainty”—a predictable process—into the unwieldy cases. He adopted similar ones, tweaking them to prioritise speed. Litigants reached trial in half the time it took in California. Around the same period, “it also happened that there was an explosion of patent-troll litigation,” says Paul Gugliuzza of Temple University, referring to plaintiffs who own bad patents and seek quick and cheap settlements. By the mid-2010s Mr Ward’s successor, Rodney Gilstrap, had about a quarter of the country’s patent cases.

Patentsville, USA

The caseload in Marshall books up the courthouse and boosts businesses downtown. One hotel bought a subscription to pacer, an online database for court records, to keep track of potential clients. In an apparent bid to make locals (read: jurors) like it more, Samsung, a frequent defendant, sponsored an ice rink across from the courthouse. TiVo spent $10,000 on a champion steer at a livestock auction, and named it TiVo.

This sits uneasily with some. Federal judges are meant to be generalists, and courts are not supposed to power their local economies. And the rules “tend to be more plaintiff-friendly”, says Andrew Russell, a patent litigator in Delaware. Defendants often try to transfer their cases elsewhere. But that is partly because the speedy tempo suits plaintiffs, as deep-pocketed defendants can afford to drag out litigation. Early on, verdicts in the Eastern District were lopsided, because the posh defence lawyers were “terrible” at arguing before juries, says Michael Smith, a longtime patent litigator in Marshall. Verdicts in the Eastern District now conform to national averages; in Waco, defendants actually win more, according to Lex Machina.

But the optics in Marshall were sufficiently bad that in 2017 the Supreme Court made it harder, in effect, for plaintiffs to file lawsuits there, by requiring defendants to have “regular and established” business where they are sued. Apple shut down its nearby stores. (Samsung did not and, despite the ice-rink, was hit with a $303m jury verdict in Marshall last year.)

By 2021 Waco’s patent docket—similarly speedy, thanks to local rules—was attracting scrutiny, too. John Roberts, the chief justice of the Supreme Court, acknowledged senators’ concerns about the “extreme concentration of patent litigation” there. Starting in 2022 Waco patent cases were required to be put into a lottery, so that any of the Western District of Texas’s 12 judges could draw them. In 2023 fewer patent cases were filed overall, and Waco saw a steep drop-off.

Link to the rest at The Economist

PG isn’t going to deluge visitors to TPV with patent, trademark, trade secrets and other types of intellectual property beyond copyright, but the Waco story illustrates how intellectual property laws can be turned into something he doubts the creators of US intended as they have revised and updated IP laws over the years.

For the record, PG’s opinion is that the Supreme Court should have intervened earlier. While federal law and rules permit Federal District judges to hear patent infringement lawsuits, there is a specialized court located in Washington, DC, that would likely do a better job.

At present, the Patent Trial and Appeal Board is part of the US Patent Office.

The PTAB currently only reviews rejections made by examiners in proceedings called ex parte appeals and decides patentability questions for issued patents raised by third parties in proceedings called AIA trials.

While these duties are different from a patent infringement lawsuit, the judges in the PTAB are experts on patent law. To the best of PG’s knowledge, each of the judges are drawn from experienced patent attorneys. In order to become a patent attorney, an individual must have gained at least an undergraduate degree in a technology subject.

A patent attorney must have received a Bachelor’s Master’s or PhD in a Recognized Technical Subject. Examples of Recognized Technical Subjects include Aeronautical Engineering, Engineering Physics, Electrical Engineering, Metallurgical Engineering, Petroleum Engineering, Marine Engineering, etc., etc

After obtaining a degree in a recognized technical subject, a patent attorney must then go to law school, graduate, then take and pass a difficult patent bar examination. Year in and year out, only about 50% pass the patent bar exam.

A federal district court judge is nominated by the President and confirmed by the United States Senate. How does the President decide who would be a good district judge?

Invariably, if there is an opening for a new District Judge in Wyoming, Wyoming’s Senators and the state’s single Congressional representative will recommend a Wyoming state judge or a Wyoming attorney to the President. If nothing nasty shows up on a background check, the President will be quite likely to nominate the person suggested by the Senators and Representative.

The new District Judge may have spent her/his legal career exclusively in Bankruptcy Courts, divorce litigation or medical malpractice lawsuits.

Does the new District Judge know anything at all about patent law? Nope.

It is possible the first patent case the District Judge hears will involve a patent infringement claim regarding a sub-system in a nuclear-powered electrical generation plant. Bankruptcy law will not be much help for the Judge.

From Publishers Weekly:

A proposal floated during ongoing contract negotiations between management at the freedom of expression nonprofit PEN America and its staff union, PEN America United (PAU), has led to charges by the union that the organization’s leadership is trying to stifle union members’ free speech rights—an assertion PEN management firmly disputes.

According to a PAU release, the controversy stems from a proposal made during a March 14 bargaining session, at which, PAU contends, management proposed what the union categorizes as “vague and broad language under which PAU members could be disciplined for engaging in any political activity that ‘impacts the ability of PEN America to engage in its mission.’ ” The threat of discipline could extend to activity, conducted off-hours, that management determines could bring “negative attention to PEN America,” the union continued.

Under the suggested language, union members “could be subject to discipline for activity such as signing onto an open letter criticizing PEN or attending a protest,” the union contends. Union members may also be subject “to discipline for activity conducted off-duty, off-premises, and on their own equipment.”

In a statement, the PAU executive board wrote: “PEN America Management’s language chills free expression while asking union members to surrender their rights as workers and renounce a safeguard from retaliation. Sweeping restrictions like these coming from a leading free-expression organization would set a very dangerous precedent for employees everywhere.”

It added: “Given current events, the need for robust protections to employees’ rights to political activity and speech in their personal time is of increased importance. It is incredibly disappointing to see Management does not respect this internally, despite PEN’s guidance to other organizations.”

In its own statement, PEN America management said that the language in question is from a proposal “relating to political activity that was intended to ensure compliance with our legal obligations as a 501(c)(3) non-partisan organization and the avoidance of conflicts of interest for the organization that could result from an employee playing a public role in a political campaign or running for office.”

The proposed language, PEN management continued, “was informed by prior experience with a staff member who had launched a campaign for local political office as a partisan candidate while employed at PEN America—an activity that would have involved working hours, raising compliance. and conflict of interest concerns, for the organization.”

Stressing that it does not interfere with the free expression of its employees, PEN management added that “the proposed contractual language has been under discussion with the union in recent weeks, and we have reiterated our position that the organization does not seek to curtail the political activities of staff, except insofar as they may compromise PEN America’s legal compliance with non-profit law, and thus our mission as well.”

PEN management also provided its counterproposal, which reads, in full: “PEN America believes in the free expression of employees’ personal religious, political, social, or economic beliefs. Employees shall not be disciplined for the expression of such beliefs while off-duty, except where such conduct impacts the ability of PEN America to engage in its mission. Notwithstanding the foregoing, PEN America’s policies prohibiting discrimination, harassment, and retaliation shall continue to apply.”

According to PEN management, during the March 14 negotiations, they suggested removing the paragraph on political activity entirely “so that the collective bargaining agreement would include no language at all on the subject.” At that meeting, management said, “the union indicated that it did not wish to delete the provision and that it would counter the proposal” with language that management says it is now awaiting.

In response to PEN management’s assertion, PAU explained that it “understands that the organization is prohibited by law from engaging in partisan political activity and has no desire to interfere with such legal obligations,” insisting that “the conversation that has taken place during ‘recent weeks’ has not revolved around nonprofit administration or partisan activity, but around whether it is appropriate to discipline union members for political activity, expression, and association.” It added: “PEN America has repeatedly rejected attempts from PAU to include language that would explicitly protect union members from retaliation, such as ‘Employees will not be penalized or terminated for any political activity or speech engaged in while off-duty, solely in their personal capacity.’”

. . . .

Internal and External Turmoil

The controversy comes as negotiations between PAU and PEN management continue to drag on. Employees first formed a union, which PEN America recognized, in June 2022, and began bargaining with the organization that October. In March 2023, PAU voted to affiliate with United Auto Workers Local 2320, Region 9A. According to the union, PAU and PEN America have only reached six tentative agreements out of 25 total proposals to date.

The internal spat over conflicting definitions of protected free expression also comes as PEN America faces increasing public criticism from some of its membership and others in the literary world over its handling of issues relating to Palestine. (While criticism of PEN has reached new heights since the latest war in Gaza began, such critiques have dogged the organization at least since 2013, when former New York Times editor Middle East and Balkan bureau chief Chris Hedges resigned from the organization’s board.)

On January 31, six protesters from the group Writers Against the War on Gaza disrupted a PEN America event in Los Angeles featuring a conversation between comedian Moshe Kasher and actor Mayim Bialik, the latter of whom is an outspoken supporter of Israel. One of the protesters, author Randa Jarrar, was physically removed from the scene by security.

Link to the rest at Publishers Weekly

PG wonders if those who have contributed to PEN America have been concerned about how much the non-profit is spending on labor attorneys to represent it during these negotiations.

OTOH, the employees’ union is not doing the future of the organization that employs its members any good by airing all sorts of complaints about the behavior of management of the organization.

The world may have benefitted from some of PEN’s initiatives during earlier times, but the world does not need PEN to continue to exist. There is nothing PEN does that another organization, non-profit or not, could also do. The ACLU comes to PG’s mind.

From Publishers Weekly:

Three years after Albert Whitman & Company came under fire from authors and illustrators over delayed royalty payments, numerous agents are saying that the 105-year-old Chicagoland children’s publisher has once again fallen behind on its obligations.

PW spoke with more than a dozen authors and agents over the past month who all shared similar complaints and concerns after agreeing to speak on condition of anonymity. One agent said that the publisher managed to get current after its troubles in 2020–2021, but has since slipped. Another agent offered a more blunt assessment: AW&C is “up to their old games” and “not behaving like a reputable publisher.”

“Frankly, their schedule of paying five months after sending the royalty statement is frustrating,” one agent said, while another added that the company owes payments on multiple illustrator contracts as well as royalty payments for other clients. “They have always been slow to pay, but they have become unresponsive, and that is quite concerning.”

In an interview, AW&C v-p and co-owner Patrick McPartland acknowledged the publisher’s recent difficulties and told PW that executives have been reaching out to author and agent groups, including the Association of American Literary Agents, the Society of Children’s Book Writers and Illustrators, and the Authors Guild. McPartland cited a tough 2023 in terms of sales and cash flow—a common theme among many indie presses. Those challenges were exacerbated, he said, by the death of business director Joseph Campbell in August 2022.

“We’re doing our best to get out in front of this and make sure that everyone is aware that we are aware,” McPartland said, adding that the company is also “slowing down acquisitions” to prioritize paying author advances and royalties.

Still, the latest round of troubles has shaken the confidence of some authors and agents. One author (whose agent succeeded in reverting the rights from AW&C to a series she’d created) reported that a royalty check dated November 15 did not arrive until the end of January. A second author, who spoke with PW about the publisher’s troubles back in 2020 and 2021, complained of a continuing lack of transparency: “I don’t know what they’re doing with the royalties, and I don’t see any way I can find out. With a publisher you have to have some sense of trust. I absolutely have no trust in Albert Whitman after struggling with them for over a decade.”

A third author, a former children’s book editor at various New York City houses who has published more than a dozen books with AW&C, concurred. “The editorial staff is lovely and I have done some very nice books with them, but the payment stuff is just a sin,” the author said. “Not only do they not pay but they offer zero explanation. Each time, one person will say, ‘I am going to check on that,’ or, ‘It’s waiting for an okay from the people in charge.’ No one wants to have to scream and shout to get their money. It’s not respectful.”

Link to the rest at Publishers Weekly

PG says that this sort of problem with a publisher is a massive headache for authors, who rightly feel trapped by their publishing contracts. No other traditional publisher is likely to be interested in purchasing a basket full of headaches represented by this small publisher.

PG has no inside information about the publisher, but bankruptcy is often the ending for companies that cannot pay their bills on time over a period of years.

From The Wall Street Journal:

It’s said that for every right there’s a remedy. Three cases before the Supreme Court will test whether that’s true for the freedom of speech.

In National Rifle Association v. Vullo, a New York state official took aim at gun advocacy by threatening regulatory hassle for bankers and insurers that continued to do business with the NRA. Recognizing the threat, they dumped the organization. Now that the official, Maria Vullo, is being sued, she claims that under the qualified-immunity doctrine, she can’t be ordered to pay damages.

Qualified immunity broadly protects officials from liability, so most plaintiffs who are censored don’t bother seeking damages for past suppression. Instead they seek injunctions against future censorship. In Murthy v. Missouri, however, the Biden administration is trying to foreclose that remedy, too.

Although the government pressured social-media platforms to censor users, it now claims the plaintiffs shouldn’t get an injunction because they can’t show that they are likely to be censored again. They also want injunctive protection for their ability to read other authors, but again the government objects. More seriously, even if the court sustains the injunction in Murthy, it won’t be sufficient, as it doesn’t bar the full breadth of the current censorship. Injunctions will always be inadequate in the face of secret suppression. In this case, because the government kept its role secret, it has taken more than half a decade to get an injunction against the censorship.

Americans are thus in a strange predicament. Under Supreme Court doctrine, they can’t be confident of getting either damages for past censorship or a prompt and effective injunction against future censorship. And it gets worse. In NetChoice v. Paxton, in which the justices hear oral arguments on Monday, there’s a danger the court will strike down Texas’ free-speech statute. That law treats the dominant social-media platforms as common carriers and bars them from discriminating on the basis of viewpoint.

This sort of antidiscrimination law is the only effective remedy for the current regime of government censorship. It’s unlikely that federal law will adequately limit federal censorship, so state law is structurally essential to stop it. And only when common-carrier antidiscrimination rules are applied to the platforms will the federal government be fully precluded from imposing censorship through them.

A decision that state common-carrier laws can’t be used to stop federal censorship through the platforms would render such censorship all but irremediable. Damages are generally unavailable for past censorship, and injunctions are too slow and otherwise inadequate against future censorship—so a decision against an antidiscrimination rule would make it a trifecta against free speech.

This risk is especially startling because it’s only recently that Americans have needed a remedy against censorship. The government once couldn’t actually suppress speech; it could only punish the speaker, and for this it had to go to court. The government once had to go to court to charge a particular defendant with seditious libel or some other offense and prove its accusation. Now, the government can simply pressure or induce the dominant social-media platforms to suppress speech en masse. That approach doesn’t merely punish speakers; it snuffs out speech. And it places the onus of going to court on the censored individuals.

Link to the rest at The Wall Street Journal (Sorry if you encounter a paywall)

From The Wall Street Journal:

Can government tell Big Tech companies how to edit content and police their platforms? That’s the question before the Supreme Court on Monday in two cases with major First Amendment implications (Moody v. NetChoice and NetChoice v. Paxton).

NetChoice, a tech industry group, is challenging Texas and Florida laws that seek to prevent social-media platforms from silencing conservatives. Republicans are rightly frustrated by censorship that often tilts against conservatives, including us. But the solution to business censorship of conservatives isn’t government censorship of business.

The Florida law bans large social-media platforms from removing the accounts of political candidates, or suppressing posts by or about them. Platforms also can’t take “any action to censor, deplatform, or shadow ban a journalistic enterprise based on the content of its publication or broadcast,” and they must apply their standards “in a consistent manner” among their users.

The Texas law bars platforms from making editorial decisions based on the viewpoint of a user’s expression, which isn’t clearly defined. The law is so broad it could be read to bar platforms from suppressing pro-Nazi speech or content that glorifies eating disorders. Both laws require platforms to explain in detail why posts are removed. Companies could face stiff government penalties and lawsuits.

NetChoice makes a strong case that the laws abridge First Amendment speech rights by restricting the editorial discretion of platforms. Only last term the Court ruled in 303 Creative LLC that Colorado couldn’t compel a website designer to create work that violates her values. The same principle, NetChoice says, should apply to the Texas and Florida laws.

While such social-media platforms as Instagram and YouTube aren’t traditional publishers like newspapers and broadcasters, they exercise editorial judgment when they decide what content to remove, suppress or amplify. They also exercise discretion when curating user feeds and making recommendations.

The states disagree. They claim their laws regulate business conduct, not expression. They also argue that states can prohibit businesses that open themselves to the public from discriminating against customers under the common-carrier legal doctrine that predates the U.S. Constitution.

“Common carriers have generally opened their facilities to all speakers and speech,” Florida writes in its brief. “Requiring them to open that door a crack more interferes with no expression of their own. Thus, the telephone company, internet-service provider, and delivery service have license neither to snuff out the speech they carry, nor to cancel disfavored subscribers.”

This analogy is inapt. Businesses that are regulated as common carriers like telephone companies, taxis, railroads and electric utilities don’t engage in editorial or expressive activity. Yet the states implicitly concede that social-media platforms do engage in such expression when they accuse them of discriminating against disfavored speech. Florida and Texas can’t have it both ways.

The overriding problem is that extending common-carrier regulation to social-media platforms invites more government control of speech. Do Florida and Texas want Federal Trade Commission Chair Lina Khan dictating what can and can’t be said online? Could California pass a law requiring companies to remove posts that criticize male transgender participation in women’s sports?

. . . .

The Florida and Texas laws do the same. If the laws stand, companies would no doubt refrain from policing their platforms to avoid being bankrupted by litigation. Some conservatives might prefer an online free-for-all, and the free market has given birth to platforms for them. Elon Musk has taken a lighter touch to content regulation since buying X, formerly Twitter. But if you’re worried about the cultural damage from social media now, imagine if sites are obliged to let anything go.

These two cases, by the way, are separate from one the Court will hear in a few weeks concerning Biden Administration pressure on tech platforms to censor conservatives. That case, Murthy v. Missouri, implicates government censorship that strikes us as a First Amendment violation.

Conservatives are understandably concerned that left-leaning tech companies want to exclude their ideas. There is no easy solution to this problem. Exposure and condemnation of the censorship has helped. But it never turns out well for conservatives, or anyone else, when the supposed remedy is giving government more power to control speech. The Supreme Court can make that clear to Texas and Florida.

Link to the rest at The Wall Street Journal

PG says government power to control speech is always a bad idea.

Content-neutral time, place, and manner restrictions, as defined by Supreme Court, are as far as government should go.

From The Guardian:

A Florida school has received backlash after it required parents to provide written consent allowing their children to engage with a Black author’s book. The permission form detailed an activity in which “students will participate and listen to a book written by an African American”.

Chuck Walter, a parent at Coral Way K-8 in Miami, posted a photo of the slip on X, writing: “I had to give permission for this or else my child would not participate???” He tagged the Miami-Dade county public schools superintendent, Jose L Dotres. (Dotres’s office did not immediately respond to the Guardian’s request for comment.)

Walter’s post comes days after another Miami school, iPrep Academy, drew ire for asking for parents’ permission for students to participate in “class and school wide presentations showcasing the achievements and recognizing the rich and diverse traditions, histories, and innumerable contributions of the Black communities”.

The permission slips indicate how some Florida schools are trying to comply with the state’s “Parental Rights in Education” law, more commonly known as the “don’t say gay” law, and the “Stop Woke Act”, both signed by the governor, Ron DeSantis, in 2022. The former prohibits discussions of sexuality and gender in classrooms, while the latter regulates how race and race issues can be taught in schools. Critics have suggested that Florida lawmakers are aiming for erasure or to teach a false history to the state’s children.

The Florida commissioner of education, Manny Díaz, called the situation a “hoax”, posting on X: “Florida does not require a permission slip to teach African American history or to celebrate Black History Month. Any school that does this is completely in the wrong.”

But DeSantis and other Republican lawmakers in the state have created an environment in which teachers are severely limited in how they can discuss race, gender and sexual orientation in all grades, and officials have not provided concrete guidance on how to comply. As a result, some teachers and districts have created policies, like the permission slip policy, to ensure they are acting in accord with the law.

For Miami-Dade county public schools, compliance has included requiring parental consent for all club meetings and events, guest speakers, college adviser visits and other enrichment activities, the Miami Herald reported. Teachers now face time- and resource-consuming hurdles to ensure their students are able to hear from Black historians and Holocaust survivors, for instance, which has been a normal practice in local schools in previous years.

Link to the rest at The Guardian

From Wikipedia:

Florida Man is an Internet meme first popularized in 2013, referring to an alleged prevalence of people performing irrational or maniacal actions in the U.S. state of Florida. Internet users typically submit links to news stories and articles about unusual or strange crimes and other events occurring in Florida, with stories’ headlines often beginning with “Florida Man…” followed by the main event of the story. Because of the way news headlines are typically written, they can be creatively interpreted as implying that the subjects of the articles are all a single individual known as “Florida Man”.

PG wonders if Florida Schools will be the next big Florida _____________ meme.

From The Wall Street Journal:

When Penguin Random House held a board meeting in May, book banning was one of several topics on the agenda. It was supposed to be a routine discussion. The company had mostly kept a low profile on the issue.

Then Skip Dye spoke up. 

Dye, who oversees U.S. library sales for the global book-publishing giant, launched into an impassioned speech about the company’s handling of the issue, saying the publisher wasn’t doing enough to oppose the removal of hundreds of books from public school libraries and classrooms across the country.

While backers of the book bans believed they were targeting titles that were pornographic or otherwise inappropriate for young people, Dye saw an assault on free speech and on the publisher’s authors. 

Novels such as “The Bluest Eye,” written by Nobel Prize winner Toni Morrison, and Malinda Lo’s National Book Award winner “Last Night at the Telegraph Club,” about a young Chinese American lesbian, had been taken off school shelves. 

Penguin Random House had previously kept its actions to writing checks for an industry group challenging the bans, and creating a website with information about them. Its peers in publishing had similarly been reticent on the issue.  

Dye called for more aggressive action. “I said we needed to do more than support online hashtag campaigns and augment other voices—that we needed to be a voice,” Dye said in an interview, noting that he “apologized for becoming impassioned.”

Penguin Random House chief Nihar Malaviya found his call-to-action persuasive and moving. By the end of the meeting Malaviya had created an “Intellectual Freedom” task force to explore the actions the company could take. He put Dye in charge. 

That one high-intensity boardroom exchange ignited the company. It now fully embraces the fight against book bans, entering a sensitive debate that is playing out in school boards and state houses across the country. 

At risk: potentially alienating a large chunk of customers on an issue at the crux of culture wars that have polarized the nation in ways not seen in decades.

Two weeks after the board meeting, the company became the only major U.S. publisher to join a federal suit in Florida that challenges bans in public school libraries on First Amendment grounds. In November, Penguin Random House filed a federal lawsuit seeking to block school book banning in Iowa. 

“We don’t want a small group of parents deciding on who should have access to which books in the entire community,” said Malaviya, 49, in an interview. The publisher’s stance is that teachers, librarians and school administrators, as expert educators, already make decisions about what is appropriate for young readers, and should be left to do their jobs.

Despite the risks, Penguin Random House’s leadership said that failing to act had moral and financial costs.

An internal company report showed that the sales of some banned titles subsequently declined, one by 91%, between 2022 and 2023. That’s been damaging for the company as well as for authors trying to establish their literary careers.

“We have two missions: a cultural mission and a commercial mission,” Malaviya said. 

Growing bans

Penguin Random House has started hosting anti-book-banning events, giving away several thousand copies of its most frequently banned titles, and has orchestrated a letter-writing campaign targeting local and school board officials. 

School boards and school districts removed more than 1,500 book titles from an assortment of publishers from public school classrooms and libraries in the 12 months through June 2023, according to a recent study by PEN America, a literary and free-speech organization that has been vocal in opposing bans. 

There were 3,362 cases of banned books nationwide, a 33% year-over-year increase. More than 1,400 book bans took place in Florida, followed by 625 bans in Texas. 

Parents have expressed concerns about picture books for elementary school students that they said included inappropriate content related to sex and gender. 

Lindsey Smith, a parent at Woodfield Elementary School in Gaithersburg, Md., said a picture book called “Pride Puppy” caught her attention. The book, about a lost dog at a Pride parade, includes an illustration of a person holding a sign that reads “The Future is Intersectional” and a wagon filled with vegetables labeled “Queer Farmers.” Smith, a mother of four who founded a local chapter of Moms for Liberty, described the book as “full of political agendas.”

A spokesman for the school district said books deemed “welcoming and inclusive” were supplemental and “not required.”

Andrew Wooldridge, publisher at Orca Book Publishers, said “Pride Puppy” is intended for children ages 3 to 5. When asked how he responds when parents raise concerns that “Pride Puppy” is inappropriate for young readers, Wooldridge said, “My usual reaction is: have you read the book?”

The U.S. Supreme Court in a landmark 1982 decision, Board of Education, Island Trees Union Free School District No. 26 v. Pico, found that the First Amendment provided some protection against school board officials removing books from school libraries.

The current book-banning push has proved a potent political issue and has galvanized intense opposition in some states. In November, about a third of candidates endorsed by the conservative group Moms for Liberty were elected, down from around 45% in prior races.

Those results reflect a survey taken on behalf of the American Library Association in early March 2022 that found a majority of parents believed “school librarians in their district generally listen to the concerns of parents and try to work with them if they have concerns.”

‘Other worlds’

The issue is personal for both Dye and Malaviya. Dye, 61, grew up in a poor household in eastern Tennessee. Access to a school library set him on a different road than the one his parents traveled. He remembers thumbing through “The Boxcar Children” series, books about orphaned children who made a boxcar in the woods into a home, and “Mr. Rabbit and the Lovely Present,” about a rabbit who helps a girl find a gift for her mom.

“I was very dependent on libraries, particularly my school library,” said Dye. “We had a reading teacher who introduced me to books and other worlds.”

Malaviya immigrated to the U.S. from India as a 13-year-old, knowing little about American history. Eager to learn, he would eat his lunch quickly and then head to the school library to read. 

“Having any book that I wanted to read readily available in my high school library was so beneficial to me,” Malaviya wrote in an internal note to staff last fall. “Not every book we publish will resonate equally with everyone, but each of our books deserves the right to be discovered, read, discussed and debated.”

Penguin Random House, he said, had more books on banned lists than any other publisher, and many targeted books were written by underrepresented authors and covered LGBTQ themes. “Book-banning activities have a disproportionate impact on certain books and authors,” Malaviya said in an interview. “We didn’t think it was right.”

The company began to hear from some of its top authors on the issue last year. Jodi Picoult, a bestselling fiction writer whose works have been widely banned across the U.S., privately voiced her concerns last March to Barbara Marcus, president of Random House Children’s Books, at an industry gala, the author said.

“It feels terrible and scary because it’s happening with greater and greater frequency,” Picoult said in an interview. Her banned novels include “Nineteen Minutes,” about a school shooting and its aftermath, and “The Tenth Circle,” which deals with a high school date-rape case. In Iowa, Picoult’s books have been banned in more than 30 school districts, according to a database created by the Des Moines Register.

In his role selling books to school libraries, Dye has heard from librarians like Lindsey Kimery who are on the front lines of the fight, facing parents angry about the books available to their kids. Kimery, the coordinator of library services for Metro Nashville Public Schools, said she became involved in the issue in 2022, when Tennessee began to consider legislation that would ban certain titles.

The backlash she faced for opposing bans took an emotional toll. “I’d come home from work, and then work in the evenings, advocating for public school libraries,” said Kimery. “My hair started falling out. Who hates libraries and librarians?”

Penguin Random House’s board meeting last year was a turning point. Malaviya had been promoted to interim CEO after his predecessor, Markus Dohle, resigned in December 2022 following the company’s failed bid to acquire rival Simon & Schuster. Dohle was a demonstrative leader, comfortable on stage, where he often flashed a thumbs-up.

By contrast, Malaviya, a data expert and technologist, was humble in demeanor and presentation, more comfortable focusing on others and confident that his calm, analytical approach to problem-solving would lead to good outcomes. His style was to lead by listening.

. . . .

Cases in Florida and Iowa

Suing to stop book bans was a major goal for the new task force. The publisher felt targeting individual school districts would be too limiting, so the idea was to focus on states.

“It’s easy to put out a statement saying we deplore censorship, but if we are deploying the assets of the company, we are using time, energy and resources and that investment has to be maximized,” said Novack, who is part of the task force.

When Novack learned the law firm Ballard Spahr was working on a book-banning lawsuit against Escambia County School District in the state of Florida with PEN America, he called an attorney there and asked, “Can we get in?”

Escambia County seemed like the perfect venue for such a fight because its restrictions on public school libraries were, in the publisher’s view, so extreme. The county lets individuals challenge books on grounds they are pornographic or contain depictions of sex, and says those titles should be removed from circulation pending review. The county also restricted access to books by or about the LGBTQ community and books that discuss racism, said Novack.

In an early victory, a federal judge ruled the plaintiffs in the Florida case can pursue their lawsuit on First Amendment grounds. In addition to Penguin Random House, plaintiffs include PEN America, authors and parents of local students.

In Iowa, Penguin Random House is challenging a state education law that bans from classrooms and school libraries books that depict sex acts up to grade 12 or address sexual orientation and gender for kids up to sixth grade.

Link to the rest at The Wall Street Journal (Sorry if you encounter a paywall)

New York City values vs. Oakley, Kansas (population 2,026) values?

New York City values vs. Dickinson, North Dakota (population 25,167) values?

New York City values vs. Brevard, North Carolina (population 7,700) values?

New York City values vs. Chama, New Mexico (population 920) values?

New York City values vs. Redwood Falls, Minnesota (population 5,095) values?

Who decides what is taught to elementary school children and teenagers in these and tens of thousands of other similar places?

Federal Judges vs. State Judges

Since New York City plaintiffs are allowed to sue local school district boards and board members in federal court under Article III, Section 2, of the United States Constitution, all the lawsuits filed by New York publishers that PG has read about have been filed in federal vs. state courts.

Explanation: In the law of the United States, diversity jurisdiction is a form of subject-matter jurisdiction that gives United States federal courts the power to hear lawsuits that do not involve a federal question. For a federal court to have diversity jurisdiction over a lawsuit, two conditions must be met. First, there must be “diversity of citizenship” between the parties, meaning the plaintiffs must be citizens of different U.S. states than the defendants. Second, the lawsuit’s “amount in controversy” must be more than $75,000.

Practicalities: Attorneys or state judges who want to become Federal District Judges (who are the federal judges who try cases instead of hearing appeals of tried cases like appellate judges do) are nominated by the President of the United States and approved by the U.S. Senate. Federal judges serve until they die or voluntarily retire by usually taking “Senior Status”. (More than a few federal judges are very old because they can only be forced out of office by impeachment proceedings involving both houses of Congress like the impeachment of a United States President.)

In point of fact, a federal judge has to display exceedingly poor behavior or issue excessively bizarre rulings to be forced from office.

Results: Some federal judges become very arrogant in their treatment of counsel who appear before them. Attorneys who are members of prestigious law firms who may well have appeared before a judge on many prior occasions may find themselves treated with more respect than Joe-bag-of-donuts general practitioners who spend most of their court time in local and state courts representing ordinary people who don’t have a lot of money.

Therefore: While a given federal judge may feel a sense of noblesse oblige towards groups of small-town parents who object to contemporary New York City standards reflected in textbooks created and sold by well-known publishers represented by expensive law firms, in PG’s experience, there may be a tendency to discount the concerns of ignorant locals and the school boards they elect in New York City v. Hicksville disputes.

From Publishing Perspectives:

Late-day news from Austin today (January 17) is that the Fifth Circuit Court of Appeals has ruled “HF 900” a violation of the First Amendment protection in the United States. This is the result of a major lawsuit led by the Association of American Publishers, American Booksellers Association, the Authors Guild, the Comic Book Legal Defense Fund, and bookstores Blue Willow in Houston and BookPeople in Austin.
A joint statement from the plaintiffs provided to Publishing Perspectives reads, “We are grateful for the Fifth Circuit Court of Appeals’ decisive action in striking down this unconstitutional law.

“With this historic decision the court has moved decisively to ensure the constitutionally protected speech of authors, booksellers, publishers, and readers, and prevent the state government from unlawfully compelling speech on the part of private citizens.

“The court’s decision also shields Texas businesses from the imposition of impossibly onerous conditions, protects the basic constitutional rights of the plaintiffs, and lets Texas parents make decisions for their own children without government interference or control. This is a good day for bookstores, readers, and free expression.”

The plaintiffs also provide three key highlights, quoting from the ruling:

The “district court was correct that the government-speech doctrine does not apply. The ratings are the vendor’s speech, not the government’s.”

The court concluded that the “plaintiffs are likely to succeed on the merits of [their compelled-speech] claim. . . ‘[T]he right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all. . . ’ But the law requires plaintiffs to ‘either speak as the state demands’ or suffer the consequences.”

The “Supreme Court has said that ‘[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’ Because [the law] threatens the plaintiffs’ right to be free from compelled speech, the plaintiffs have shown an irreparable injury. They have also shown that they will suffer irreparable economic injury.”

Link to the rest at Publishing Perspectives

From The Economist:

The “p” in “Pushin P”, a song featuring Young Thug, does not refer to the street name for methamphetamine, according to the rapper’s lawyers—rather, it stands for “positivity”. The threatening connotations of “Thug” are also misleading, they claim. That supposedly stands for “Truly Humbled Under God”. And his lyrics, which often reference drugs and violence, are supposedly written from the perspective of a fake persona. Prosecutors do not buy it. Jeffrey Williams, the Atlanta-born artist behind the pseudonym, stands accused of eight counts, including racketeering and gang conspiracy. (He denies all charges.) In a trial which recommences on January 2nd, at least 17 sets of lyrics will be submitted as evidence against him. Young Thug is perhaps the best-known rapper to have his art used in this way, but he is not alone. In America and Britain, rap lyrics are increasingly presented by prosecutors as confessions. How is art used in court—and why is rap music singled out?

Most art forms usually find their way into court only when the case is about the work itself, such as trials involving theft or forgeries. Art can also be thrust into the dock when it offends the establishment. In the 1920s police in America arrested blues singers when their songs were dubbed the “devil’s music”. “Lady Chatterley’s Lover”, a novel by D.H. Lawrence, a British writer, about an affair was at the centre of an obscenity trial in 1960. Lawyers in Nevada slapped Judas Priest, a British rock band, with a lawsuit over alleged subliminal messaging as the “Satanic Panic” took hold in the 1980s. Repressive regimes continue to try artists they dislike—a Russian court in 2012 convicted Pussy Riot, a punk band, of hooliganism for singing “Virgin Mary, Put Putin Away” in a Moscow cathedral.

But art is rarely used as evidence of other crimes. In 2022 “How to Murder Your Husband”, an essay listing different ways to commit the crime, was barred from a trial in America in which the author, a romance writer, was convicted of killing her spouse. (Judges noted that the text had been written years earlier, presumably before she began planning.) The same holds true for music. Before rappers picked up their microphones, lyrics were rarely used as evidence in court, says Jack Lerner of the University of California, Irvine.

Like artists in other genres, rappers have faced their fair share of obscenity trials. But today they are not usually prosecuted for their art alone. As in Young Thug’s trial, lyrics are used as evidence against artists charged with other offences, typically relating to drugs or violence. The same is rarely true of other genres. Country singers regularly belt out murder ballads: Johnny Cash, who sang about shooting a man in Reno “just to watch him die”, was arrested seven times, including on drug charges, but there is no record of his lyrics being used to jail him. A New York Times investigation found that since 1950 just four trials had used non-rap lyrics or written fiction as evidence of assault or violent threats. Hundreds of criminal cases have involved rap.

Link to the rest at The Economist

Today has been consumed by the creation of responses to a large number of Takedown Orders (212) PG received today for TPV postings, citing alleged violations under Section 512(c)(3)(A) of the Digital Millennium Copyright Act

He received them from what appears to be a Takedown Order Generating company located in Britain.

PG suspects this organization spidered all of PG’s available posts and pulled out any posts that included excerpts from their clients’ publications, all of which appeared to be British publishers – The Economist, The Telegraph, The Guardian, etc., etc.

He further suspects that no actual humans were involved in determining whether Takedown Orders were, in fact legitimately permissible given the nature and purpose of PG’s use of excerpts from the various publications and all other Fair Use considerations.

PG has done a lot of research and will be filing his responses early tomorrow, within the statutory time frame permitted for doing so. As you might have anticipated, PG believes that his excerpts were and are permitted under the laws of the US and other civilized Western Nations.

He’ll share more information about his adventures in Takedown Land as events transpire.