Legal Stuff

Stephen King Sued Over The Dark Tower

3 April 2017

From TMZ:

Stephen King stole the idea for his main man in “The Dark Tower” series from a famous comic book character also known as a gunslinger … according to a new suit.

The creator of “The Rook” comics claims King’s protagonist, Roland Deschain, is based on his main character, Restin Dane. He says Deschain has striking similarities to Dane other than just their initials — both are “time-traveling, monster-fighting, quasi-immortal, romantic adventure heroes.”

“The Rook” creator also points out King’s Deschain dresses like a cowboy despite not being from the Old West — just like Restin Dane — and the towers in both books look the same.

. . . .

According to the docs … the Restin Dane character was in more than 5 million comic magazines from 1977-1983 and King admits he read those stories. The first book in King’s ‘Dark Tower’ series was released in 1982.

 

Link to the rest at TMZ and thanks to Michael for the tip.

PG says TMZ doesn’t do a very good job of covering legal matters.

 

Tate Publishing loses second major case

2 April 2017

From NewsOK:

A vendor that supplied printing services to vanity publisher Tate Publishing & Enterprises was awarded a summary judgment on March 31 that could cost Tate more than $2 million.

Xerox Corp. was granted the award after Tate failed to respond to the motion.

The judgment authorizes Xerox to collect $1,446,070.67 from Tate Publishing & Enterprises, and $450,308.18 from Ryan Tate, the company’s CEO.

. . . .

The vanity press, whose attorneys bowed out of the case early this year after telling a judge they hadn’t been paid, did not send a representative to attend the hearing.

A text sent to the CEO’s phone Friday asking for comment was not answered.

The March 31 decision is the second major setback Tate Publishing has encountered since it lost its attorneys.

On Feb. 9, an Oklahoma City federal judge considering a lawsuit filed against Tate by a Tennessee-based printing services firm also awarded a default judgment worth more than $2 million.

. . . .

Writers and musicians who were under contract with Tate as late as in 2016 continue to share stories about money they paid to Tate Publishing to produce their works.

One writer, Heather D. Nelson, is publishing a series of stories she has written that are based on interviews she has done with other Tate clients. She is publishing those stories on her site, heatherdnelson.com/blog.

Nelson said March 31 she understands some authors who have agreed to sign a hold-harmless release against Tate Publishing and have sent the firm $50, have been getting their manuscripts returned.

But Nelson said numerous others are seeking a return of their works without signing the release, and that she has visited with dozens of authors about their experiences with the firm.

Link to the rest at NewsOK and thanks to Meryl and others for the tip.

One of PG’s standard aphorisms when speaking to his clients about business deals is, “Don’t do business with crooks.”

No matter how carefully-crafted the contract may be, it won’t work when the counterparty is a crook.

Perhaps there is a vanity press somewhere that isn’t a crook, but PG doesn’t know who that would be.

What Should We Do with an Artist’s Music After They Die?

22 February 2017

From Noisey:

We continue to pry open, quite literally in Prince’s case, the private works of artists to feast on their off-cuts, but is this fair?

. . . .

No one wants to think about their own death. If they do, they’re probably artists, and they tend to do so in an abstract, poetic kind of way, rather than an “I should probably file paperwork confirming the administrator of my estate and intellectual property” way. Which is perhaps why, when Prince died suddenly at the age of 57 last year, he didn’t have even the semblance of a will.
With his death, then, came months of legal complications and hearings over who should manage his estate. And because the stakes were so unusually high, the eyes of the world looked on eagerly as the mess was slowly picked apart like a ball of tangled iPhone headphone cords. Would the silver lining of Prince’s untimely end, his fans wondered, be the unveiling of the contents of his infamous vaults? The answer, it emerged last week, is yes.

After his estate was placed in the hands of bank Bremer Trust, and an extensive search for a will proved fruitless, the announcement everyone was waiting for—either hopefully or with trepidation—finally came: Prince’s vaults were to be opened, and at least some of the contents, including outtakes, demos and live recordings, were to be released to the public.

. . . .

As it turns out, the law is designed to make such a thing as easy as possible. “Celebrities’ right of privacy is extremely limited,” says James Sammataro, an entertainment lawyer and managing partner at Stroock & Stroock & Lavan. “This is the ‘price’ for being a celebrity. With the possible exception of a diary – or some comparable item in which there’s a universally recognised reasonable expectation of privacy – the rights to artists’ creations are alienable, and human nature is to attempt to monetise these creations.” The primary purpose of copyright law, Sammataro explains, is not really to protect the individual musician, but to “stimulate the progress of the arts for the intellectual enrichment of the public”.

“While it seems harsh,” Sammataro continues, “if Prince or other artists truly don’t want their works disseminated, they need to memorialise this intention in a binding document, or either not fix the work in a tangible medium or destroy the work.” In other words, if you’re a musician, and you’ve got a tape lying around of the three-chord song you wrote at 15 after getting dumped for the first time, you should probably just burn it now. It’s the only safe option.

Link to the rest at Noisey and thanks to Michael for the tip.

PG says unless you decide what you want to happen with your property, including your books, manuscripts, etc., after you die and include your decisions in something a probate court will recognize, like a will or trust, somebody else will decide what happens to your property.

While PG doesn’t do estate planning any more, there are lots and lots of lawyers who do. Call one and make an appointment.

Amazon’s Antitrust Paradox

3 February 2017

From The Yale Law Journal:

Abstract: Amazon is the titan of twenty-first century commerce. In addition to being a retailer, it is now a marketing platform, a delivery and logistics network, a payment service, a credit lender, an auction house, a major book publisher, a producer of television and films, a fashion designer, a hardware manufacturer, and a leading host of cloud server space. Although Amazon has clocked staggering growth, it generates meager profits, choosing to price below-cost and expand widely instead. Through this strategy, the company has positioned itself at the center of e-commerce and now serves as essential infrastructure for a host of other businesses that depend upon it. Elements of the firm’s structure and conduct pose anticompetitive concerns—yet it has escaped antitrust scrutiny.

This Note argues that the current framework in antitrust—specifically its pegging competition to “consumer welfare,” defined as short-term price effects—is unequipped to capture the architecture of market power in the modern economy. We cannot cognize the potential harms to competition posed by Amazon’s dominance if we measure competition primarily through price and output. Specifically, current doctrine underappreciates the risk of predatory pricing and how integration across distinct business lines may prove anticompetitive. These concerns are heightened in the context of online platforms for two reasons. First, the economics of platform markets create incentives for a company to pursue growth over profits, a strategy that investors have rewarded. Under these conditions, predatory pricing becomes highly rational—even as existing doctrine treats it as irrational and therefore implausible. Second, because online platforms serve as critical intermediaries, integrating across business lines positions these platforms to control the essential infrastructure on which their rivals depend. This dual role also enables a platform to exploit information collected on companies using its services to undermine them as competitors.

This Note maps out facets of Amazon’s dominance. Doing so enables us to make sense of its business strategy, illuminates anticompetitive aspects of Amazon’s structure and conduct, and underscores deficiencies in current doctrine. The Note closes by considering two potential regimes for addressing Amazon’s power: restoring traditional antitrust and competition policy principles or applying common carrier obligations and duties.

Link to the rest at The Yale Law Journal and thanks to RM for the tip.

Oculus lawsuit ends with half billion dollar judgment awarded to ZeniMax

1 February 2017
Comments Off on Oculus lawsuit ends with half billion dollar judgment awarded to ZeniMax

From Polygon:

A Dallas, Texas jury today awarded half a billion dollars to ZeniMax after finding that Oculus co-founder Palmer Luckey, and by extension Oculus [a company now owned by Facebook], failed to comply with a non-disclosure agreement he signed.

In awarding ZeniMax $500 million, the jury also said that Oculus did not misappropriate trade secrets as contended by ZeniMax.

. . . .

It remains unclear what sort of impact this will have on the daily retail sale of the Oculus Rift headsets. Facebook is expected to announced its fourth-quarter earnings after the market closes today.

. . . .

The Zenimax versus Facebook trial kicked off in January with testimony from a number of experts and those involved directly in the case including id Software co-founder John Carmack, Facebook CEO Mark Zuckerberg and Oculus co-founders Iribe and Palmer Luckey.

. . . .

During his day in court, Zuckerberg was grilled about his company’s seemingly rushed acquisition of Oculus for $2 billion. And during the first week of the trial, Carmack was questioned about his decision to copy some code from id Software computers before leaving the company to work at Facebook with Luckey.

. . . .

According to ZeniMax’s complaint, Oculus co-founder and Rift inventor Palmer Luckey — along with a half a dozen ex-ZeniMax employees who are now working at Oculus — are building the Rift based on years and millions of dollars’ worth of ZeniMax’s research and copyrighted code.

Link to the rest at Polygon

College Accused of Monopolizing Textbook Market

30 January 2017

From Courthouse News:

The local, off-campus competitor of an Illinois community college bookstore claims in court that the school is trying to put it out of business by selling textbooks below cost and withholding course book information.

Joliet Textbooks, which owns a store selling textbooks and related items across from the entrance of Joliet Junior College’s campus in Joliet, Ill., filed a lawsuit Tuesday in Will County accusing JJC of violating the Illinois Antitrust Act.

The off-campus store claims that JJC “engaged in a concerted scheme to thwart competition in the market for the sale of used and new textbooks and to destroy competition in the marketplace by undermining plaintiff’s business through anti-competitive pricing strategies.”

The school’s official bookstore, a half-mile from Joliet Textbooks, “enjoys certain institutional advantages over a private sector competitor like plaintiff,” such as not paying rent and not needing to generate a profit to stay open, the complaint states.

Both stores purchase their new and used textbooks from the same sources, says Joliet Textbooks, and the standard practice is to charge 20 to 30 percent above cost.

However, JJC has allegedly been selling textbooks to its students below cost and is giving out rebates and calculating sales taxes on the artificially lower price.

Link to the rest at Courthouse News and thanks to Nate for the tip.

PG is not familiar with the Illinois Antitrust Act, so he can’t opine about the plaintiff’s chances in court.

He was, however, reminded, of an antitrust suit by the American Booksellers Association and a number of independent bookstores against Barnes & Noble and Borders in 2001. The principal claim was that the big bookstores received secret discounts from big publishers and distributors. The case was ultimately settled before a final verdict.

Controversial e-book sales tactic banned in Canada

21 January 2017

From The Globe and Mail:

Apple Inc.’s long legal struggle over alleged anti-competitive e-book pricing took another turn on Friday as the company joined a consent agreement with Canada’s Competition Bureau that will ban a controversial sales tactic for three years.

Three of Canada’s four major book publishers – Hachette Book Group Inc., Macmillan (a subsidiary of Verlagsgruppe Georg Von Holtzbrinck GmbH) and Simon & Schuster Inc. – also agreed to halt a system known as most-favoured nation (MFN) pricing, which prevented competing retailers from selling e-books at a discount compared to Apple’s minimum price. A Competition Bureau investigation had found that the MFN arrangement between Apple and the publishers led to higher prices for consumers.

There was no financial component to any of the agreements.

But a fourth major publisher – HarperCollins Publishers LLC – failed to reach an agreement, prompting the watchdog to refer the case to the Competition Tribunal, a separate body that adjudicates matters of business, economics and law.

Link to the rest at The Globe and Mail and thanks to Tudor for the tip.

Techdirt’s First Amendment Fight For Its Life

12 January 2017

From TechDirt:

As you may have heard, last week we were sued for $15 million by Shiva Ayyadurai, who claims to have invented email. We have written, at great length, about his claims and our opinion — backed up by detailed and thorough evidence — that email existed long before Ayyadurai created any software. We believe the legal claims in the lawsuit are meritless, and we intend to fight them and to win.

There is a larger point here. Defamation claims like this can force independent media companies to capitulate and shut down due to mounting legal costs. Ayyadurai’s attorney, Charles Harder, has already shown that this model can lead to exactly that result. His efforts helped put a much larger and much more well-resourced company than Techdirt completely out of business.

So, in our view, this is not a fight about who invented email. This is a fight about whether or not our legal system will silence independent publications for publishing opinions that public figures do not like.

And here’s the thing: this fight could very well be the end of Techdirt, even if we are completely on the right side of the law.

Whether or not you agree with us on our opinions about various things, I hope that you can recognize the importance of what’s at stake here. Our First Amendment is designed to enable a free and open press — a press that can investigate and dig, a press that can challenge and expose. And if prominent individuals can make use of a crippling legal process to silence that effort, or even to create chilling effects among others, we become a weaker nation and a weaker people because of it.

We are a truly small and independent media company. We do not have many resources. We intend to fight this baseless lawsuit because of the principles at stake, but we have no illusions about the costs. It will take a toll on us, even if we win. It will be a distraction, no matter what happens. It already has been — which may well have been part of Ayyadurai’s intent.

Link to the rest at TechDirt and thanks to Scott for the tip.

Case of ‘fattened’ Jorge Luis Borges story heads to court in Argentina

11 January 2017

From The Guardian:

One of the best-known stories by the Argentinian author Jorge Luis Borges takes the form of a fake literary essay about a Frenchman who rewrites a section of Don Quixote word for word and is showered with praise for his daring.

It is probably safe to say that Borges’s 79-year-old widow, María Kodama – sole heir and literary custodian of his oeuvre – takes a dimmer view of such rewrites.

The novelist and poet Pablo Katchadjian is facing trial for “intellectual property fraud” after publishing a reworking of Borges’s 1945 story The Aleph. The Fattened Aleph – originally published by a small press in 2009 – extended Borges’s work from its original 4,000 words to 9,600.

Most of the alterations consist of the addition of adjectives and descriptive passages and do not change the original plot, which revolves around a “a small iridescent sphere” in a Buenos Aires basement, through which a person can see the entirety of creation.

. . . .

After five years, a court hearing has finally been set for 14 February, and the judge in the case appears to be leaning in Kodama’s favour. “The alteration of the text of the work by Borges is evident,” Judge Guillermo Carvajal stated in his ruling for a trial.

Kodama’s lawyer Fernando Soto dismissed Katchadjian’s claims that the work was a literary experiment. “Only Katchadjian’s name appears on the cover. It doesn’t say ‘The Aleph by Borges, altered by Katchadjian’. Borges is not mentioned in the index or the copyright page either. The only place Borges appears is in a brief postscript at the end of the text,” Soto said.

. . . .

Katchadjian has rarely spoken in public about the case (and did not respond to an interview request), but he did discuss it at at an event last year at the National Library in Buenos Aires.

“The Fattened Aleph is not plagiarism because no plagiarism is open about its source,” Katchadjian said. “Neither is it a joke that went wrong, or one that went right. It is a book I wrote based on a previous text.”

. . . .

Katchadjian’s laywer, Ricardo Strafacce, said he was confident the lawsuit would not prosper. “Legal forensic experts have already established that The Fattened Aleph is a new work of art. Secondly, the court will also take into account that there was no intent by Katchadjian to deceive the reader as to Borges’s authorship of the original The Aleph, which is clearly stated in Katchadjian’s book.”

Link to the rest at The Guardian

All Romance Ebooks & Visions of The Future: Part One

1 January 2017

From Kristine Kathryn Rusch:

All Romance Ebooks and its sister website Omnilit did something incredibly awful on December 28, 2016. It sent out a handful of emails, letting writers, publishers, readers, and others know that it was shutting its doors four days later.

The letter WMG Publishing got said this,

On midnight, December 31, our sites will go dark and your content will cease to be available for sale through our platforms. This includes any content you are having us distribute to Apple.

We will be unable to remit Q4 2016 commissions in full and are proposing a settlement of 10 cents on the dollar (USD) for payments received through 27 December 2016.  We also request the following conditions:

1.     That you consider this negotiated settlement to be “paid in full.”

2.     That no further legal action be taken with regards to the above referenced commissions owed….

It is my sincere hope that we will be able to settle this account and avoid filing for bankruptcy[KKR: all bold mine]

I have no books on that site. Hadn’t for a long time. If any of my work is there, it’s there through other publishers or as part of an anthology. WMG pulled its books off All Romance Ebooks (ARe) almost a year ago, because of problems dealing with the site, the people behind the site, and just some really unsettling business practices.

How unsettling? Nothing concrete. It looked (from the outside) like their interface was breaking down. We knew of sales on our account that never were credited to our account. I believe WMG even tested the site by buying (or having someone buy) a book, and seeing if we got credited.

We didn’t. Then we tried to track down what was owed, what payments had been made, and communications issues. We had a handful of truly incompetent employees (nice people; terrible workers) in 2014, and at first, we attributed our ARe problems to them. But after some dealings, we realized that, nope, the problem wasn’t ours. It was ARe’s problem, and that was a very, very, very bad sign.

We pulled all our titles off ARe, deactivated our account, and moved on to other sites.

So when we got this ridiculous letter, we knew it would have no effect on us. But as Allyson Longueira at WMG noted, ARe (a major Apple portal) made its announcement while Apple is shut down for annual maintenance, and writers who have to switch from ARe to Apple direct can’t do so.

Not only that, authors will lose any algorithm from Apple, and probably any revenue from them.

. . . .

ARe is a distributor, mostly, and so it is dealing with its writers as suppliers and unsecured creditors. I’ve been through a bunch of distributor closings, many in the late 1990s, with paper books, and they all happen like this.

One day, everything works, and the next, the distributor is closed for good. In some ways, ARe is unusual in that it gave its suppliers and creditors four days notice. Most places just close their doors, period.

I’m not defending ARe. I’m saying they’re no different than any other company that has gone out of business like this. Traditional publishers have had to deal with this kind of crap for decades. Some comic book companies went out of business as comic book distributors collapsed over the past 25 years. Such closures have incredible (bad) ripple effects. In the past, writers have lost entire careers because of these closures, but haven’t known why, because the publishing house had to cope with the direct losses when the distributor went down.

The difference here is that ARe wasn’t dealing with a dozen other companies. It was dealing with hundreds, maybe thousands, of writers individually, as well as publishers. So, writers are seeing this distribution collapse firsthand instead of secondhand.

To further complicate matters, ARe acted as a publisher for some authors, and is offering them no compensation whatsoever, not even that horrid 10 cents on the dollar (which, I have to say, I’ll be surprised if they pay even that).

. . . .

Now, let me give you all some advice.

Lawsuits cost time as well as money. I know a whole bunch of angry writers are banding together to go to war with ARe. Which is good, on the one hand, because these kinds of things should not ever happen.

But on the other hand, it’s not good, because a whole bunch of writers are going to lose a year or more of precious and irreplaceable writing time to go after this company.

Some writers have that time; others do not.

Frankly, if the writers’ organizations put together some kind of lawsuit, sign on to that, because it will be more effective. They can afford good lawyers and they will have a huge number of writers that they represent.

I know you’re angry. I know you may have serious financial problems because of this shut-down.

You need to take a deep breath, and look at the impact ARe’s shutdown and the loss of fourth quarter earnings will have on you. Then you need to understand that any lawsuit will take a year or more (courts are slow). ARe might settle; they might not.

. . . .

Guessing now, purely guessing.

ARe had run ahead of their money since they started. They used today’s money to pay yesterday’s bills. They had no profit. So they were floating money—payments to authors, payments to creditors, payments like website and rent.

That’s why ARe’s technology grew antiquated, why they weren’t keeping up with the times, why payments in some cases were late or impossible to get. They probably got a line of credit too late or they didn’t have one or they were borrowing off credit cards.

This fall, book sales went down. I discussed some of that after the election, but I’ll be discussing it more and in a different way later in January. Like its authors, ARe was counting on a certain level of revenue. That revenue went down, starting in July (maybe sooner), and continued downward all fall.

ARe paid writers and publishers 45 days after the close of the quarter. So they had to have made the Q3 payments by early November. That probably used most of their capital. They figured the holiday season would save them, along with holiday ad buys.

I’ll wager those were below what ARe expected—significantly below. So, they tried the 2017 ad buy the week before Christmas, hoping that would save them.

Link to the rest at Kristine Kathryn Rusch on Patreon and thanks to C.G. for the tip.

Here’s a link to Kris Rusch’s books. If you like the thoughts Kris shares, you can show your appreciation by checking out her books.

As usual, Kris’s advice is sound. If you’re involved in the ARe matter, you’ll want to read her entire post.

In a past life, PG represented lots of people in lots of civil litigation. He spent a great deal of time in court.

In some cases, litigation is a necessary part of solving a dispute. The parties are unable to agree, so a judge or jury must decide the matter.

On the other hand, litigation takes a financial and emotional toll on the parties. In some cases, the tangible and/or intangible rewards of litigation outweigh the financial/emotional costs and in other cases they do not.

PG was once involved in finally settling a lawsuit over the validity of a will that had lasted 13 years. He’s comfortable in saying that the costs outweighed the rewards for the litigants in that case.

PG says it is almost always a bad idea to entrust your business or personal welfare to the outcome of litigation.

You can move on with your life without a lawsuit or sue and move on with your life. The moving on with your life part is always the most important.

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