FTC Sues Amazon for Illegally Maintaining Monopoly Power

From The Federal Trade Commission:

September 26, 2023

The Federal Trade Commission and 17 state attorneys general today sued Amazon.com, Inc. alleging that the online retail and technology company is a monopolist that uses a set of interlocking anticompetitive and unfair strategies to illegally maintain its monopoly power. The FTC and its state partners say Amazon’s actions allow it to stop rivals and sellers from lowering prices, degrade quality for shoppers, overcharge sellers, stifle innovation, and prevent rivals from fairly competing against Amazon.  

The complaint alleges that Amazon violates the law not because it is big, but because it engages in a course of exclusionary conduct that prevents current competitors from growing and new competitors from emerging. By stifling competition on price, product selection, quality, and by preventing its current or future rivals from attracting a critical mass of shoppers and sellers, Amazon ensures that no current or future rival can threaten its dominance. Amazon’s far-reaching schemes impact hundreds of billions of dollars in retail sales every year, touch hundreds of thousands of products sold by businesses big and small and affect over a hundred million shoppers. 

“Our complaint lays out how Amazon has used a set of punitive and coercive tactics to unlawfully maintain its monopolies,” said FTC Chair Lina M. Khan. “The complaint sets forth detailed allegations noting how Amazon is now exploiting its monopoly power to enrich itself while raising prices and degrading service for the tens of millions of American families who shop on its platform and the hundreds of thousands of businesses that rely on Amazon to reach them. Today’s lawsuit seeks to hold Amazon to account for these monopolistic practices and restore the lost promise of free and fair competition.”

“We’re bringing this case because Amazon’s illegal conduct has stifled competition across a huge swath of the online economy. Amazon is a monopolist that uses its power to hike prices on American shoppers and charge sky-high fees on hundreds of thousands of online sellers,” said John Newman, Deputy Director of the FTC’s Bureau of Competition. “Seldom in the history of U.S. antitrust law has one case had the potential to do so much good for so many people.”

The FTC and states allege Amazon’s anticompetitive conduct occurs in two markets—the online superstore market that serves shoppers and the market for online marketplace services purchased by sellers. These tactics include:

  • Anti-discounting measures that punish sellers and deter other online retailers from offering prices lower than Amazon, keeping prices higher for products across the internet. For example, if Amazon discovers that a seller is offering lower-priced goods elsewhere, Amazon can bury discounting sellers so far down in Amazon’s search results that they become effectively invisible.
  • Conditioning sellers’ ability to obtain “Prime” eligibility for their products—a virtual necessity for doing business on Amazon—on sellers using Amazon’s costly fulfillment service, which has made it substantially more expensive for sellers on Amazon to also offer their products on other platforms. This unlawful coercion has in turn limited competitors’ ability to effectively compete against Amazon.

Amazon’s illegal, exclusionary conduct makes it impossible for competitors to gain a foothold. With its amassed power across both the online superstore market and online marketplace services market, Amazon extracts enormous monopoly rents from everyone within its reach. This includes:

  • Degrading the customer experience by replacing relevant, organic search results with paid advertisements—and deliberately increasing junk ads that worsen search quality and frustrate both shoppers seeking products and sellers who are promised a return on their advertising purchase.
  • Biasing Amazon’s search results to preference Amazon’s own products over ones that Amazon knows are of better quality. 
  • Charging costly fees on the hundreds of thousands of sellers that currently have no choice but to rely on Amazon to stay in business. These fees range from a monthly fee sellers must pay for each item sold, to advertising fees that have become virtually necessary for sellers to do business. Combined, all of these fees force many sellers to pay close to 50% of their total revenues to Amazon. These fees harm not only sellers but also shoppers, who pay increased prices for thousands of products sold on or off Amazon.  

The FTC, along with its state partners, are seeking a permanent injunction in federal court that would prohibit Amazon from engaging in its unlawful conduct and pry loose Amazon’s monopolistic control to restore competition.

Connecticut, Delaware, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Hampshire, New Mexico, Nevada, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, and Wisconsin joined the Commission’s lawsuit. The Commission vote to authorize staff to file for a permanent injunction and other equitable relief in the U.S. District Court for the Western District of Washington was 3-0.

Link to the rest at The Federal Trade Commission

PG has posted about this matter previously. When the complaint was filed, the public consensus from independent antitrust attorneys was that the complaint was unlikely to succeed.

Unfair Competition

From The United States Department of Justice, Antitrust Division:

The Antitrust Laws

The Antitrust Division enforces federal antitrust and competition laws. These laws prohibit anticompetitive conduct and mergers that deprive American consumers, taxpayers, and workers of the benefits of competition.

The Sherman Antitrust Act

This law prohibits conspiracies that unreasonably restrain trade. Under the Sherman Act, agreements among competitors to fix prices or wages, rig bids, or allocate customers, workers, or markets, are criminal violations. Other agreements such as exclusive contracts that reduce competition may also violate the Sherman Antitrust Act and are subject to civil enforcement.

The Sherman Act also makes it illegal to monopolize, conspire to monopolize, or attempt to monopolize a market for products or services. An unlawful monopoly exists when one firm has market power for a product or service, and it has obtained or maintained that market power, not through competition on the merits, but because the firm has suppressed competition by engaging in anticompetitive conduct. Monopolization offenses may be prosecuted criminally or civilly.

The Clayton Act

This law aims to promote fair competition and prevent unfair business practices that could harm consumers. It prohibits certain actions that might restrict competition, like tying agreements, predatory pricing, and mergers that could lessen competition.

An illegal merger occurs when two companies join together in a way that may substantially lessen competition or tend to create a monopoly in a relevant market. This reduction in competition can harm consumers by potentially leading to higher prices or fewer choices for products or services. It can also harm workers by potentially leading to lower wages or fewer choices for employment.

An illegal tying agreement happens when a company forces customers to buy one product (the tying product) in order to purchase another product (the tied product). The two products are bundled or “tied” together, which gives the tying agreement its name. This practice restricts a customer’s choice and can limit competition. In a fair marketplace, business compete on price and on how good their products are. If an illegal tying arrangement is in place, a seller can use its strong market power on a popular product to force customers to buy a second, lesser product.

Predatory pricing is when a company sets its prices very low, often below cost, to drive competitors out of business. Once the competition is gone, the company can raise prices because it has less or no competition left.  This practice harms competition and, in the long run, it can result in higher prices for consumers and lower wages for workers.

The Clayton Act also prohibits an individual from sitting on boards of competing corporations. This illegal practice can lessen the competitive vigor that would otherwise exist between truly independent rivals. By sharing a board member, the two companies might synchronize pricing changes, labor negotiations, and more.  

The goal of the Clayton Act is to maintain a fair marketplace where various companies can compete, giving consumers more options and better prices, and giving workers a fair market for their labor. This law also protects individuals and small business from being unfairly treated by larger companies. Overall, it works to keep markets competitive and ensure that businesses play fair.

Link to the rest at The United States Department of Justice, Antitrust Division

How two small Texas towns became the patent-law centre of America

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.

PEN Union Cries Foul in Contract Talks as Criticism of PEN America Intensifies

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.

Book Publishing Contracts – Checklist of Deal Terms

From Morse:

The path to publication generally requires authors to sign a “publishing contract” that covers such topics as: manuscript delivery and acceptance, copyright ownership and grants; royalty advances, rates and payment; author warranties and indemnities; contract duration and rights reversion (out-of-print); options on new works; and limitations on competing works. But if you’re an author who can’t find, wait for, or afford a lawyer, how do you know what terms are standard, reasonable or fair?

The following is not meant as legal advice, but rather as a checklist and guide to the issues typically covered, and the terms publishers typically offer, so you can identify issues to consider and possibly address and thereby make the time spent with your lawyer or other advisor more efficient. 

1. Rights granted (Form, Language, Market, Time):

A. Copyright ownership: Who will own and control the bundle of copyrights, in what media, and in what geographic regions (see below)?

  • Author should own the copyright (though academic publishers often demand an assignment of the copyright); ideally it should state that rights not specifically granted are reserved to Author.
  • If you can’t avoid “work made for hire” or express assignment to Publisher, be sure to address the termination of the grant/contract and reversion of rights to Author (see “out of print” below at 9.F and 15.E).
  • Publisher ideally should agree to register copyright in Author’s name (or at least allow the Author to do so – avoid registering copyright in Publisher’s name).

B. Territories (EC & Australia considerations): Where can the rights be exercised? Some publishers will seek worldwide rights; but industry customs favor a more nuanced approach, given that translation rights are implicated. So, consider which territories it makes sense for your publisher to control and start from there.

C. Subsidiary rights: first serial (exclusive right to be first periodical to print story, article, excerpt, etc.), second serial (nonexclusive right to publish after first publication by another periodical), reprint (essentially same as second serial), British Commonwealth (publication in any of over 50 countries, mostly former British colonies), other foreign territories, translation, motion picture, TV, dramatic, audio, electronic, multimedia, podcast, commercial and merchandising – which of these rights are reserved or granted? Consider: how well placed is Publisher to sell such rights, and how successful historically? Here are other issues to address:

  • Proportion in which proceeds shared (standard: 90% first serial, 75/80% UK and foreign, 50-66% other). 
  • Author or agent approval of sub rights licenses controlled by Publisher.
  • Pass-through (after advance is repaid, ideally the royalties owed for sub rights – typically ½ of what Publisher receives – should flow through to Author 30-60 days after receipt).
  • Hard/soft deal vs. Hard/soft separate.
  • Author ideally retains dramatic, film, TV, radio, merchandising (today’s standard publishing agreement often retains these for Publisher; but consider arguing that these should remain with Author unless Publisher has affiliates, proven success or special expertise to do these things).
  • Author ideally retains rights to characters, settings, title (if fiction with series prospects).
  • Preserving and allocating electronic, audio, and video rights and rights in new technologies (ideally no right to add music or sound effects without Author approval).
  • Book club rights – be sure royalties are fair (don’t become a free or low-cost giveaway).
  • If Publisher takes subsidiary rights you care about, press to have any rights that Publisher has failed to exploit within a reasonable period (e.g., 2 –3 years after book published) revert to Author.
  • Include general reservation of rights clause: any rights not expressly granted to Publisher remain with Author.

2. Advance and Royalties: Amount and Schedule

A. Advances – Ideally these should be nonrefundable; at worst, if manuscript rejected, Publisher may only recover from “first proceeds” under next contract for the same work

  • Ideal: 1/2 on signing, 1/4 on delivery of half MS, 1/4 on final acceptance.
  • Avoid “payment on publication” (though that’s what many Publishers offer).

B. Royalty Rate (but (i) understand base against which rate applied: ideally it would be cover or list price, but it may be net of freight pass-through (“invoice” price), or simply – and less favorably – net receipts, and (ii) if based on net receipts, ask what discount applies to their normal channels and what percent of their sales is at a deeper discount)

  • Hard cover: 5,000 – 10%; 10,000 – 12 1/2%; 15,000 – 15%
  • Mass market paper: 6/8% (on first 50-150,000), increasing to 10%
  • Trade paperback: 6/7 1/2% (on first 25,000), increasing to 9/10% (often on “net price” or “amount received,” which is typically 1/3 – 1/4 off list)
  • E-books: highest print rate; 20-50% net (35% increasingly common)
  • Audiobooks: 10-25% net for physical copies, 25-50% for digital copies
  • Academic and scholarly texts, including textbooks: 6-15% net

C. Bonus payments or increased payments in the event of:

  • Book club sales
  • Bestseller list appearance (identify which lists count, e.g., New York Times, Publishers Weekly, Amazon Charts)
  • Award winner: Pulitzer, NBA, etc.
  • Motion picture or TV development
  • Earn-out advance

D. Discount Schedule: consider distinguishing premium sales to business from bulk sales to specialty stores, and request sharing “costs” of deep discounts.

E. Royalty reductions may be proposed for: deep discounts, special sales, mail order, premium sales, small print runs (typically 50% of standard rates or a flat low rate, e.g., 5%).

  • If the royalty is lower for deeper discounts, learn what percentage of their books are sold at what discount levels.

F. If the book includes advertising or other third-party content (other than excerpts from other works published by Publisher), Author gets 50% of fees paid to Publisher.

G. Authors and Illustrators of children’s books generally share revenue 50/50, unless either hires other to do work.

H. Grants: Authors of textbooks and nonfiction may require grant funds to cover extra expenses, such as travel, research assistance or special artwork.

Link to the rest at Morse

New York Disbars Infamous Copyright Troll

From Above the Law:

For years, Richard Liebowitz ran a very successful operation mostly sending threatening letters to companies claiming that they had infringed upon copyrights held by his photographer clients. Under the best of circumstances it’s a niche practice area that’s… kinda shady. But Liebowitz gained a degree of infamy across a number of matters for high-profile missteps in cases that sparked the ire of federal judges. Now, finally, New York has disbarred him.

Liebowitz wasn’t alone in the copyright trolling practice. A number of entities scour the internet looking for photographs that they can claim are “unlicensed” and demanding thousands of dollars to settle the matter knowing that between statutory damages for copyright infringement and the cost of litigation, most companies will just pay it. Many times, the photo in question actually is legally licensed through an agency like Getty Images, but the plaintiff photographer has, for whatever reason, pulled the image since the license was granted.

This runs the risk that some plaintiff might do this on purpose hoping to catch some legal licenseholder unawares and bank on the target just settling to avoid bringing any lawyers into the situation. Which is why, for example, a judge in one case cited by the disbarment opinion ordered Liebowitz “produce to the defendant records sufficient to show the royalty paid the last three times that the picture at issue was licensed, and the number of times the picture was licensed in the last five years; if the picture was never licensed, the plaintiff was to certify that fact as part of the plaintiff’s production.” In this case, Liebowitz “did not timely produce the required royalty information to the defendant” per the disbarment opinion.

Though most of the opinion describes more fundamental case management problems. From a case brought in 2017:

The respondent stated under penalty of perjury that he did not and had never made a settlement demand in this matter. In fact, the respondent had sent the defendant’s counsel an email in which the respondent proposed settling the matter for the sum of $25,000.

And another case brought in 2017:

On January 13, 2018, the respondent submitted a letter (hereinafter the January 13, 2018 letter) to the District Court, requesting an adjournment of the pretrial conference scheduled for January 19, 2018, and stating that the defendant “had yet to respond to the complaint” and that the plaintiff intended to file a motion for a default judgment. Judge Cote granted the request and ordered the motion for entry of default due on January 26, 2018.

The respondent’s statement in his January 13, 2018 letter that the defendant “had yet to respond to the complaint” was false and misleading, and the respondent knew that it was false and misleading when he made it. The January 13, 2018 letter failed to advise the court of the months-long history of communication between the parties, beginning in July 2017, as mentioned above.

. . . .

From yet another matter:

The plaintiff admitted in a deposition and in other documents that the Photograph had been previously published on numerous occasions. To prevent the defendants from learning that the plaintiff did not hold a valid registration, the respondent stonewalled the defendants’ requests for documents and information. The respondent also failed to comply with an order by Magistrate Judge Debra Freeman to obtain and produce Copyright Office documents to demonstrate a valid registration. After it came to light that the Photograph was not registered, and despite the record stating otherwise, the respondent argued, without evidence, that the lack of registration was merely a mistake.

If there’s a lesson to take away from these and the many, many more examples included in the opinion, it’s that copyright trolling outfits are largely unprepared for someone to push back on their demands. Firing off demand letters, memorializing boilerplate licensing agreements, and collecting cash is a tidy business model right up until a firm has to juggle hearings and discovery requests and experts and “not committing perjury.”

But perhaps the most bizarre story involves Liebowitz missing an April 12, 2019 hearing, explaining that his grandfather had passed. When Judge Seibel directed Liebowitz under penalty of contempt to furnish evidence or documentation regarding the date of his grandfather’s death, Liebowitz shot back that the order “likely constitutes a usurpation of judicial authority or a breach of judicial decorum.”

On November 7, 2019, the respondent retained counsel to represent him in the contempt proceedings, and on November 11, 2019, the respondent sent a letter to Judge Seibel admitting that he failed to carry out his responsibilities to the District Court and to his adversary. The respondent also admitted that his grandfather died on April 9, 2019, and was buried that same day.

Link to the rest at Above the Law

While most lawyers don’t engage in this sort of behavior, either because they regard it as intrinsically dishonest or worried they’ll get caught, as the OP demonstrates, somebody is going to call their bluff. That’s easier to do in places that are not so clogged with cases like New York, Chicago, etc.

In less massive and chaotic court systems where a lawyer is likely to encounter opposing counsel in another case sooner or later, the rule of living by the sword/dying by the sword comes into play as an effective deterrent to not being a jerk.

Federal Court Suspends Florida Attorney Over Filing Fabricated Cases Hallucinated by AI

From LawNext:

Just a few weeks ago, I wrote about two more cases of AI-hallucinated citations in court filings leading to sanctions, and now comes the case of a Florida lawyer suspended from practice after filing cases that were “completely fabricated.”

On March 8, the U.S. District Court for the Middle District of Florida suspended attorney Thomas Grant Neusom from practicing in that court for one year, after which he will be eligible to apply for reinstatement.

In ordering the suspension, the court adopted the report and recommendation of its grievance committee, which issued a report in January finding that Neusom violated rules of the court and Florida’s Rules of Professional Conduct through a series of actions, including having filed pleadings that contained frivolous legal arguments based on fabricated cases.

The matter was brought to the attention of the disciplinary committee after Neusom’s opposing counsel, Nabil Joseph, was unable to find the cases and asked Neusom to furnish text versions. Neusom “provided non-responsive and evasive answers to the request for the cited authorities,” according to the committee.

When the committee asked Neusom about the pleadings during a telephone interview, he said that “he used Westlaw and Fastcase and may have used artificial intelligence to draft the filing(s) but was not able to check the excerpts and citations.” In a subsequent written response, he failed to offer any explanation for the fabricated cases “or provide any sense of understanding of the seriousness of the situation.”

Based on this, the committee found that Neusom had not only failed to exercise the reasonable due diligence required of an attorney, but that his conduct went “beyond a lack of due diligence as some of his legal authorities were completely fabricated.”

Link to the rest at LawNext

PG’s immediate response was that the penalty was not severe enough. He would have added a sizeable fine on top of the suspension.

PG wouldn’t be surprised if the attorney’s malpractice carrier had voided his policy, based on intentional idiocy.

It’s Time for Publishers to Tell the Truth About Posthumously Published Books

From Book Riot:

This week saw the publication of Until August by Gabriel García Márquez, a work that was incomplete at the time of his death in 2014 and which he expressly stated should not just be kept private but completely destroyed. The novella, which is being marketed as a “rediscovered” work, was published with the permission of García Márquez’s sons, the executors of his literary estate. 

The reasoning goes like this: their father worked doggedly on the book until memory loss due to dementia required him to stop writing in 2004. At the time, he had amassed nearly 800 pages of drafts, fragments, and notes and even once submitted a draft to his agent before ultimately declaring, “This book doesn’t work” and instructing his sons to destroy it upon his death. Now here’s where it gets tricky. 

It was only when he was suffering severe memory loss from dementia that he decided it wasn’t good enough.

When they revisited the last draft, García Márquez’s sons found it was better than they remembered. Had dementia clouded their father’s judgment of his own work? Fearing that they had made a mistake by honoring his wishes and holding back what could be a meaningful addition to his legacy and literary history, the brothers decided to reverse course. They told the New York Times’s Alexandra Alter that they know it might look like a cash grab.

His sons acknowledge that the book doesn’t rank among García Márquez’s masterpieces, and fear that some might dismiss the publication as a cynical effort to make more money off their father’s legacy.

I’m deciding to take García Márquez’s sons at their word and assume that they are trying to do the right thing in a very complicated situation. 

I’m not asking literary executors and publishers to do something different because I’m not sure they should, and I know better than to think they will. What I am asking is for them to do better

As scholar Álvaro Santana-Acuña notes, having to weigh your loved one’s last wishes against Global Literary History (especially when your loved one was a Nobel Prize-winning author) is an impossible position to be in. From my comfortable perch as an armchair ethicist in this debate, the answer to “Should you publish work your loved one expressly instructed you to destroy?” is “It depends.” 

What it depends on is largely how you do it. 

Like many readers, I am of two minds about posthumous publication that defies a writer’s wishes. The financial, reputational, and historical incentives are compelling. I get it, and I understand that for those reasons, posthumous publication of lost/incomplete/etc work will continue to be a thing. Fine. I’m not asking literary executors and publishers to do something different because I’m not sure they should, and I know better than to think they will. What I am asking is for them to do better

. . . .

Go Set a Watchman wasn’t a sequel to To Kill a Mockingbird; it was an early draft Harper Lee wanted to keep out of the public eye for good reason. Until August is not a rediscovered Gabriel García Márquez novel; it’s a 144-page construction Frankensteined together from the author’s working material. And there’s nothing wrong with that! What is wrong is the profit-driven decision to package and market these books as something that they aren’t. 

. . . .

Publishers do readers and authors alike a disservice when they misrepresent the nature of posthumously published work to make it more commercially appealing, and literary executors fail their charges when they agree to this packaging. There are plenty real reasons for readers to be interested in a posthumously published work, publishers and estates don’t need to fudge the backstory.

Link to the rest at Book Riot

New Concerns at Albert Whitman

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.

Amazon must face narrowed lawsuit over eBook prices

From Reuters:

A federal judge on Monday heavily trimmed an antitrust lawsuit that accused Amazon.com, opens new tab and others of causing consumers to overpay for eBooks.

U.S. District Judge Gregory Woods in Manhattan accepted a recommendation from a U.S. magistrate last year that the case be narrowed to include, for now, only two plaintiffs who purchased eBooks directly from Amazon.

The judge completely dismissed the plaintiffs’ claims against Hachette Book Group, HarperCollins Publishers, Macmillan Publishing Group, Penguin Random House and Simon & Schuster, finding that the plaintiffs had not shown a conspiracy between Amazon and the book publishers.

The plaintiffs alleged Amazon and the book publishers restricted competition on price through what the complaint called “coercive contractual terms,” leading to higher eBook prices. The lawsuit said Amazon curbed the ability of publishers sell eBooks for lower prices on non-Amazon platforms.

The judge on Monday allowed the plaintiffs’ monopolization claims to proceed against Amazon alone.
Amazon did not immediately respond to a request for comment, and a lawyer for the plaintiffs had no immediate comment. The publishers also did not immediately respond to requests for comment.

. . . .

Woods’ ruling dismissed claims by 13 individual consumers who purchased eBooks through Amazon competitors including Apple, Google and Barnes & Noble. The “indirect” purchasers have no legal standing to support their antitrust allegations, the court said.

. . . .

In one case, the U.S. Federal Trade Commission last year accused Amazon of operating an illegal monopoly that curbs merchants from offering better deals on other platforms. A trial is scheduled for 2026. Amazon has denied the claims.

Link to the rest at Reuters

Authors Equity points toward the future of publishing

From Nathan Bransford:

Some pretty significant news arrived this week as some of the smartest and most experienced people in publishing are joining forces on a new imprint called Author Equity. Its business model says a lot about where we’re headed as an industry.

Essentially, Author Equity pledges to put authors first, and they won’t offer advances. They will instead offer the “lion’s share” (the former agent in me is shouting, “HOW MUCH IS THAT EXACTLY”) of the profits, and will maintain a lean staff that relies on freelancers for editing and production, with distribution by Simon & Schuster. Its author investors (including Atomic Habits author James Clear and The 4-Hour Workweek author Tim Ferriss) probably point the way toward the types of books they’re likely looking for. Namely, entrepreneurial bestsellers and bestsellers-in-the-making who are willing to forego the upfront investment of the advance in favor of making more on the backend.

Those of us who have been in this business for twenty odd years know that parts of this publishing model aren’t new. The no-advance-but-marketing-guarantees was adopted by the imprint Vanguard Press at the Perseus Books Group, which I profiled way back in 2008. (Vanguard was shuttered in 2012, and Perseus was acquired by Hachette in 2016). There have also been more behind-the-scenes deal structures like this that I’ve come across/heard about that I can’t really talk about specifically for confidentiality reasons, but trust me, they exist.

As Ron Charles notes, one thing imprints like this do is to shift more of the prospective investment of a new book onto the author. Which, again, has been around before, but I’ll be interested to see if it spreads more widely to the Big 5, where it’s never really caught on in a big way.

What feels new to me is the reliance on freelance labor. On the one hand, sure, I’m a freelance editor! I embraced the lifestyle even before the pandemic. If you offered me double what I make now, I’d still have a hard time imagining going back to a more traditional job.

Link to the rest at Nathan Bransford

PG notes that he hasn’t seen any Author Equity publishing contracts nor does PG know anything about the investors/managers the company has.

However, promising to give authors a percentage of the “profit” from the sales of her/his books is a system that’s perfectly set up to scam authors. Why might that be?

Gross revenue received by a business of any sort is not terribly easy to fiddle with. Basically, gross revenue is the money and other items with a monetary value the business receives. If a business receives payment in dollars, wheat, corn, gold, timber or diamonds, each of those has a market value that can be used as basis for calculating gross revenues.

Profits, on the other hand, are quite prone to fiddling. Salaries and benefits paid to staff are subtracted from the gross proceeds before profit is calculated. Business travel to exotic locations is a deductible expense that reduces profits.

Similarly, office rents, printing and shipping expenses reduce profits. Depreciation of equipment is another deduction that reduces profits. All sorts of things can be jammed into business expenses to effectively reduce profits.

Gross revenues from the sale of an author’s books are not susceptible to nearly as much “tweaking” as profits are. Auditing of royalties is also an easier process with gross revenues as the basis for royalties.

OpenAI: ‘The New York Times Paid Someone to Hack Us’

From Torrent Freak:

OpenAI accuses The New York Times of paying someone to hack OpenAI’s products. This was allegedly done to gather evidence for the copyright infringement complaint the newspaper filed late last year. This lawsuit fails to meet The Times’ “famously rigorous journalistic standards,” the defense argues, asking the New York federal court to dismiss it in part.

In recent months, rightsholders of all ilks have filed lawsuits against companies that develop AI models.

The list includes record labels, individual authors, visual artists, and more recently the New York Times. These rightsholders all object to the presumed use of their work without proper compensation.

A few hours ago, OpenAI responded to The New York Times complaint, asking the federal court to dismiss several key claims. Not just that, the defendants fire back with some rather damning allegations of their own.

OpenAI’s motion directly challenges the Times’s journalistic values, putting the company’s truthfulness in doubt. The notion that ChatGPT can be used as a substitute for a newspaper subscription is overblown, they counter.

. . . .

“In the real world, people do not use ChatGPT or any other OpenAI product for that purpose. Nor could they. In the ordinary course, one cannot use ChatGPT to serve up Times articles at will,” the motion to dismiss reads.

‘NYT Paid Someone to Hack OpenAI’?

In its complaint, the Times did show evidence that OpenAI’s GPT-4 model was able to supposedly generate several paragraphs that matched content from its articles. However, that is not the full truth, OpenAI notes, suggesting that the newspaper crossed a line by hacking OpenAI products.

“The allegations in the Times’s complaint do not meet its famously rigorous journalistic standards. The truth, which will come out in the course of this case, is that the Times paid someone to hack OpenAI’s products,” the motion to dismiss explains.nyt hacked

OpenAI believes that it took tens of thousands of attempts to get ChatGPT to produce the controversial output that’s the basis of this lawsuit. This is not how normal people interact with its service, it notes.

It also shared some additional details on how this alleged ‘hack’ was carried out by this third-party.

“They were able to do so only by targeting and exploiting a bug […] by using deceptive prompts that blatantly violate OpenAI’s terms of use. And even then, they had to feed the tool portions of the very articles they sought to elicit verbatim passages of, virtually all of which already appear on multiple public websites.”

Link to the rest at Torrent Freak

PG notes that allegations made in lawsuits may or may not be true. Only when a court issues a final verdict can anyone know what was true and provable and what was not.

Protecting Your Work

From Booklife:

The recent suspensions of authors from Amazon’s Kindle Direct Publishing for “copyright infringement”’ provide a powerful lesson on the importance of protecting one’s work. During this year’s BookLife Indie Author Forum, I took part in a panel discussion devoted to copyright issues. Last year, I also facilitated a roundtable discussion by the Independent Book Publishers Association, during which we talked about the hot topic of KDP suspensions for copyright infringement.

Case in point: I have an author-publisher friend who had a book on Amazon since the CreateSpace days without incident. For years, this book had been in publication, and the author owned the copyright. Several months ago, the author received an email from KDP saying that the book included copyright or trademark infringement and that their entire account would be suspended. For a publisher, this is a major problem.

The author’s inquiries about the reason and requests for further documentation and resolution were ignored. He contacted KDP on a regular basis, and, because of his persistence, the account was magically restored, and the book is live again. Compared with some of the other horror stories I’ve heard, my friend should be happy.

Another author told me he spent over $20,000 in legal fees for two books after KDP suspended his account for “copyright infringement.” His requests for clarification were ignored, and no resolution has been provided. Is anyone safe?

If you’re anything like me, you might think that the solution is simply to use publishing sites such as IngramSpark (my favorite), Draft2Digital, or Kobo, which also distribute your title to Amazon. Wrong. One author used one of these providers and shared that Amazon said that the company would have to contact the publisher, which was him, and then the distributor. When he contacted the distributor, the distributor contacted Amazon, which responded that there were no problems with the book and that it was available for purchase. When the author checked, it was not. This problem has still not been resolved.

As problematic as this is, just imagine if you had multiple books. All of your titles can be suspended if your KDP account is frozen. What happens to your royalties during this time? And if you spent money on Amazon ads, you would be paying the same entity that is holding your royalties during the suspension. If you were to continue advertising, on or outside of Amazon, you could lose money indefinitely.

The terms and conditions say Amazon can terminate without cause and keep the royalties owed, including any sales of inventory on hand. The terms only permit dispute resolution through the American Arbitration Association. Ever call the American Arbitration Association? One person was quoted an arbitration fee of $1,725 plus legal fees and an estimate of five to 10 months for resolution. Ouch! This amount is cheaper than the $20,000 I quoted earlier, but many authors cannot afford $1,725 in legal fees.

Here are some of the things that can get your KDP account suspended: using two different ISBNs for the same book format—i.e., one ISBN on IngramSpark and one on KDP (but using separate ISBNs for the paperback, hardcover, and e-book versions is fine); rights reverting to you from a previous publisher but have not been cleared by KDP; having a metadata change that implies a change in rights ownership; changing your imprint name (If you use a publishing provider such as IngramSpark, you can add an imprint name to your dashboard. This means that you need to check which one you use for each book you publish to avoid it defaulting to the wrong one); someone reports you for copyright infringement (even if the claim is not valid); or a bot error that is beyond an author’s control.

What can you do once your account is suspended? The answer varies depending on what triggered your suspension, which, according to some of those affected, is hard to get a clear answer from Amazon about. Here are a few things you can provide:

1. A screenshot of your ISBN account showing your name as owner and the imprint name with your book’s ISBN displayed

2. Approved copyright documentation from copyright.gov, not just the application (which can take up to eight months to receive)

3. Invoices and bank statements for editing costs from both your end as the publisher and from the editor’s end

4. Similar invoices and statements for cover design

Link to the rest at Booklife

Supreme Court Questions State Efforts to Regulate Social-Media Content

From The Wall Street Journal:

The Supreme Court sounded dubious Monday of state laws requiring online platforms such as Facebook and YouTube to publish nearly all user content, although several justices suggested that the ability to remove noxious social-media posts should not mean tech companies are free to block personal communications such as Gmail or chat messages.

The court heard nearly four hours of argument to determine the constitutionality of a pair of state laws that seek to prevent online platforms from moderating users’ posts. By the end, it seemed clear the court was unwilling to accept either side’s conception of what social media is: an edited publication entitled to full First Amendment freedoms; or a common carrier like a phone company that must transmit information without discriminating among its users.

“So you say this is just like a newspaper, basically. It’s like the Miami Herald,” Justice Samuel Alito told Paul Clement, the lawyer representing the industry. “And the states say no, this is like Western Union. It’s like a telegraph company” that just delivers messages, he said.

“I look at this and I say it’s really not like either of those,” Alito said.

In 2021, when Donald Trump was banned from Twitter (now known as X) after the Jan. 6 Capitol riot and conservative activists asserted their views were being suppressed by social-media sites, Florida and Texas passed laws requiring the platforms to post nearly all user content without regard to the viewpoints expressed.

The moves set off battles in lower courts, with judges reaching conflicting conclusions on whether the state regulations were lawful. Together, the two cases could set important ground rules for free-speech protections online.

Trade groups representing Meta, Google and X sued the states, saying such requirements infringe on their First Amendment rights to decide what is said on their websites. To require viewpoint neutrality meant that “if we have suicide prevention [content], we have to have suicide promotion,” Clement said. “That should be a nonstarter.”

Several justices expressed sympathy with that argument but observed that ruling against the states might also entitle the internet companies to police what messages are transmitted via other services they provide, such as individual email accounts or direct messaging.

Justice Amy Coney Barrett asked Clement how the court could write an opinion saying state restrictions were unconstitutional regarding news feeds on Facebook and YouTube, but not when it came to services such as the shopping platform Facebook Marketplace “or Gmail or DMs.”

Clement didn’t want to give ground on that point, but U.S. Solicitor General Elizabeth Prelogar, who also argued against the state laws, suggested there was a legitimate distinction between social-media sites focused on expression and those that were more akin to a service.

Different rules could apply to different functions a company performs, said Prelogar, representing the Biden administration. A railroad such as Amtrak is a common carrier and can’t discriminate among passengers. But if Amtrak publishes a magazine passengers can read during their travel, it would be entitled to First Amendment protection for the editorial decisions the company makes over what to include, she said.

Arguing in the Texas case, Prelogar agreed that social media didn’t fit neatly into Supreme Court precedents. “It’s not necessary here to try to figure out how the First Amendment applies to new technology in general or to every possible website or the internet in particular,” she said.

She recommended the court rule narrowly against what she said was a singular defect in the Texas law: the state’s aim of amplifying some voices on the platforms “by suppressing the platform’s own protected speech.”

Not so said the Texas solicitor general, Aaron Nielson. The platforms could say anything they want, even criticize user posts, he said. Users were free to block unwanted content, he said. “All that’s left is voluntary communications between people who want to speak and people who want to listen,” he said.

. . . .

Chief Justice John Roberts, disputing the idea that the platforms hold a monopoly over public discourse, said Texas had gotten the First Amendment backward.

“What the government’s doing here is saying, You must do this, you must carry these people; you’ve got to explain if you don’t. That’s not the First Amendment,” he said. Rather than impose requirements on private parties, the First Amendment bars the government from telling them what they must or can’t say, Roberts said.

Among other provisions, the Texas law prohibits platforms from discriminating against users based on their viewpoints. Justice Elena Kagan asked if the platforms claim to have the categorical right to ban users for what they believe—to decide, for instance, that when it comes to antisemites “we’re not even going to let them post cat videos.”

Clement said yes. If “you are a notorious antisemite, we do not want you to participate in this conversation,” he said.

The cases, Moody v. NetChoice and NetChoice v. Paxton, are the latest in a series the court has used to project the First Amendment into the online world.

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

Is There Any Remedy When You’re Censored?

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)

Big Tech Censorship Goes to the Supreme Court

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.

Florida school requires parental consent for pupils to listen to Black author’s book

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.

A Publishing Giant’s Risky Fight Against Book Bans

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.

The First Time I’ve Had a Book Censored

From Publishing Perspectives:

The move made by the French government against the novel Bien trop peitit (Far Too Small) in July 2023─that book being part of the 15-title Collection L’Ardeur─marked a rare decision in France. Not only was the government’s decree troubling for the national publishing community but it also had the unintended effect of helping to give the book new visibility in the marketplace.

Éditions Thierry Magnier is part of the Actes Sud publishing group, and Manu Causee’s novel Bien trop petit (Far Too Small) was published in September 2022 as part of the collection, described as mildly erotic literature for a young and informed audience. When released, the book was rated for ages 15 and 0lder. This was listed on the back cover, and the book was not a major success in bookstores until nine months later─when its sales were boosted by the controversy of interior minister Gérald Darmanin’s action.

Here is how the publisher’s sales text is written to describe the Collection L’Ardeur, literature neither considered nor intended by Éditions Magnier as pornography:

Readdarefantasy─three words that sum up the ambition of the L’Ardeur collection. Since its beginnings, our house has been proud to defend courageous literature which is interested in adolescence as it is, with its gray areas, its excesses, its heightened emotions. But adolescence is also a period when the body metamorphoses, where sexual life begins. What could be more logical, then, than to open our catalog to texts which speak of sexuality, desire, fantasy?

L’Ardeur resolutely places itself on the side of pleasure and the free and multiple exploration that our bodies offer us.”

Publisher Magnier uses the term traumatic when he describes the experience of having the book censored last summer.

“This is the first time I’ve had a book censored,” he says.

The Collection L’Ardeur, Magnier says, “was created for teenagers as a counterpoint to what emerged few years ago around ‘dark fiction.’ In France and abroad, ‘dark fiction’ was literature like Fifty Shades of Grey, in which women are objectified and men are stereotyped as rich with nice cars, and so on.

“We wanted to bring erotic literature to young people, without being educational, and to tell a different story from those you see on the Young Adult shelves,” Magnier says. And in the title that’s become so controversial, it’s youthful male sexuality that’s at issue.

Link to the rest at Publishing Perspectives

OpenAI’s admission it needs copyright material is a gift to the publishing industry

From The New Publishing Standard:

The Writers Union of Canada is among the latest to, rightly, calls for legislation to regulate the excesses of AI companies as this sector evolves.

But as with so many of these calls for legislation, we need to be clear whether these are reasoned arguments looking to harness AI’s potential to benefit the long-term interests of the publishing industry, or knee-jerk reactions pandering to member’s short-term interests with meaningless soundbites.

In the US we’ve seen the Writers Guild embrace AI as a force for good, fully accepting the AI genie will never go back in the bottle, and so looking for the best ways to work with AI companies to benefit Writers Guild members.

“We have to be proactive because generative AI is here to stay,” said Mary Rasenberger, Authors Guild CEO, explaining, “They need high-quality books. Our position is that there’s nothing wrong with the tech, but it has to be legal and licensed.“

SAG-AFTRA, the US actors union, has taken the same approach.

Proactive rather than endlessly reactive.

While at the other end of the spectrum the outgoing head of the UK’s Society of Authors, Nicola Solomon, is peddling nonsense about how 43% of writers jobs will be devoured by the AI bogeyman.

The Writers Union of Canada has tried to find a mid-way path, and acknowledges AI can bring benefits to writers, but cannot help but seize on statement by OpenAI’s CEO Sam Altman saying that AI needs to use copyrighted material as some kind of admission the company is stealing writers’ IPs.

Given the current legal interpretation of what constitutes fair use, that assertion may or may not have legs, but for the AI opponents such details are neither here nor there. As and when the law on fair use is clarified one way or the other, then we can fling mud.

Similarly, demanding creators be paid for their efforts is right, but suggesting this is not happening is wrong.

The fact that Altman and his company have, since at least May 1923 at the White House AI summit, been talking about ways to pay for the use of copyrighted material, and since mid-summer have been signing deals with content-producers to do just that (American Journalism Project, Associated Press in July 2024, Axel-Springer in December), is being conveniently ignored.

Bloomberg last week reported that Thomson Reuters is looking to sign a deal with AI companies.

Tom Rubin, OpenAI’s chief of intellectual property and content, told Bloomberg News: “We are in the middle of many negotiations and discussions with many publishers. They are active. They are very positive. They’re progressing well. You’ve seen deals announced, and there will be more in the future.”

So these opponents of AI are missing opportunities to do deals that will favour creatives, for the sake of a sound-tough soundbite.

And in this context, we should be clear that the New York Times law suit against OpenAI is happening because negotiations with OpenAI failed, not because OpenAI was unwilling to pay.

In any case, Altman has made clear OpenAI can manage just fine without NYT data if necessary.

We are open to training [AI] on The New York Times, but it’s not our priority. We actually don’t need to train on their data. “I think this is something that people don’t understand. Any one particular training source, it doesn’t move the needle for us that much.”

But this is not the only flaw in the Canada Writers Union case. The CWU has also gone down the “humans-only” road with its interpretation of copyright law.

Copyright is an exclusive right of human creators. Existing copyright legislation protects human creativity and originality, by virtue of requiring the exercise of skill and judgment to obtain copyright in a work. This should not be changed to grant copyright protection to AI generated products or to allow copyrighted works to train models without permission.

And again we have the juggling act with different issues mixed into a pot and violently stirred for the sake of a sound-tough soundbite.

No-one is asking for copyright law “be changed to allow copyrighted works to train models without permission.

And the other part of the soundbite – The law “should not be changed to grant copyright protection to AI generated products” – falls into the other classic Luddite’s Weekly trap.

On the one hand they are claiming, and Altman himself agrees, that AI cannot do its work without copyrighted material, which as of now is defined as human-produced. And at the same time they are claiming copyright “is an exclusive right of human creators.”

Link to the rest at The New Publishing Standard

Who is going to receive the cash if a large publisher signs a license to utilize their books, magazine articles, photographs, etc.?

PG can’t speak for magazines and photographic publications, but, at least for ebooks, the authors are licensing their rights to publishers, not selling those rights. Arguably, under a standard trade publishing agreement, the author hasn’t given her/his publisher the right to use their books as grist for an AI mill. The traditional publisher typically has the right to print, publish, and sell the author’s works.

Granting permission for the author’s books to be utilized as fuel for an AI is something that was not foreseen when the author signed a publishing agreement. It is common for a publishing agreement that reserve rights not granted to the publisher for the author’s use so long as the exercise of those rights doesn’t interfere with the publisher printing, publishing, and selling the manuscript as a book of some sort or another.

Another issue that a great many large publishers will likely have is publishing agreements that were written and signed long before the internet, digital publishing, or anything except print, publish in a printed serial form, licensing as a Book-of-the-Month edition, etc.

And, of course, does the author’s literary agent get 15%?

Censorship: Texas ‘Book Rating’ Law Is Blocked on Appeal

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

Taylor-made deals: how artists are following Swift’s rights example

From The Guardian:

A revolution is brewing in the music business as a new generation of female acts, following the example of Taylor Swift, are seizing ownership of their music rights and refusing to sign deals that cede complete control to music companies.

Swift is nearing the end of her project to re-record her first six albums – the ones originally made for Big Machine Records – as a putsch to highlight her claim that the originals had been sold out from under her: creative and commercial revenge served up album by album. Her public fight for ownership carried over to her 2018 deal with Republic Records, part of Universal Music Group (UMG), where an immovable condition was her owning her future master recordings and licensing them to the label.

It is a power-play template for younger acts who are now rising up – especially female pop stars, historically among the most exploited figures in music – alert to the fact that owning their recordings and songwriting is everything. Olivia Rodrigo made ownership of her own masters a precondition of signing with Geffen Records (also part of UMG) in 2020, citing Swift as a direct inspiration. In 2022, Zara Larsson bought back her recorded music catalogue and set up her own label, Sommer House. And in November 2023, Dua Lipa acquired her publishing from TaP Music Publishing, a division of the management company she left in early 2022.

At Glastonbury last summer, Rina Sawayama made a veiled jibe at the 1975’s Matty Healy for laughing at racist comments on a podcast and for the fact that he “owns my masters”, due to his directorship at Dirty Hit Limited (although his directorship was in fact terminated in April 2023). This claim about ownership skips over the complexities of contract law – Sawayama presumably having signed over the rights to her recordings in exchange for the label’s financial investment – but emotionally it plays to a fanbase who increasingly see “the industry” as the inherent enemy of art and creative autonomy. “The artists were creating those works, so really they should be owning them from an emotional point of view,” says Brian Message, a partner at Courtyard Management.

Artists today are more industry-literate and aware of the pitfalls and bear traps of the past, simply because they have to be. A multitude of older acts – perhaps most notably George Michael and Prince – had to take legal action over, in their eyes, being ripped off or badly exploited, while others such as Radiohead have made ownership of their rights in renegotiations an economic and moral mission. Some acts had prescient management on their side, with Bono recounting in his Surrender memoirs in 2022 that band manager Paul McGuinness negotiated with Island Records for U2 to take a lower advance and lower royalties as “it meant that at the end of a period of time we’d get back our rights and regain ownership of our recordings”.

Prince and George Michael are bleak warnings from history, but the moves by Swift, Rodrigo and others can stand as roadmaps for the future. It also means the music industry has had to adapt away from contracts based on ownership. There are two kinds of rights at stake here: the rights to the master recordings of an artist’s work, and songwriting rights, known as publishing. One senior music publishing executive says their part of the business was ahead of the curve, explaining that publishing deals tend to work on exclusive licensing terms or retention periods. “Publishers pivoted from a rights-ownership business to the servicing of rights,” they say. Those retention periods are getting shorter, they add, down from about 25 years three decades ago to between 12 and 15 years today.

David Martin, CEO of the Featured Artists Coalition, says there is “a propensity towards owning rights” for artists, but some acts are still prepared to sign away ownership for what they think might be their only shot at the big time. “We have members who are still signing major label deals,” he says. “Some of the terms in some of those deals are terms that we’d expect artists to be thinking very carefully about.”

Message says he steers acts away from ownership-based contracts. “We have a default position that we won’t advise our artists to do life-of-copyright deals,” he says. “It’s not that we wouldn’t do them, but our strong advice would always be to come up with a licence arrangement of some description.”

This is the ideological underpinning of BMG and AWAL (Artists Without a Label), which is now under the ownership of Sony Music Entertainment. “The philosophy is flipping the relationship,” says Alistair Norbury, president of repertoire and marketing at BMG UK. “There had to be a fairer and more transparent way to work with the creative community.”

Acts on BMG’s roster – notably Kylie Minogue, Suede, Sigur Rós and Louis Tomlinson – are on licensing or assignment deals, so ownership of the recordings eventually reverts to them. “They want to be with a record label where they have creative control and ownership coming back to them at some point,” says Norbury.

Link to the rest at The Guardian and thanks to C. for the tip.

PG says three cheers for musical artists who don’t give up rights forever.

‘How to murder your husband’ writer sentenced for murdering husband

From The BBC:

An Oregon judge has sentenced Nancy Crampton Brophy, a romance author who apparently foretold of her crime in an essay titled “How to murder your husband”, to life in prison for the shooting death of her late spouse.

Crampton Brophy, 71, was found guilty of second degree murder last month.

A jury found that she shot her husband of 26 years in 2018 for a $1.5m (£1.2m) life insurance pay-out.

Before her crime, Crampton Brophy had been a self-published author whose works of steamy romance and suspense include novels such as “The Wrong Husband” and “The Wrong Lover”.

Her late husband, Daniel Brophy, was a chef and respected teacher at the Oregon Culinary Institute.

He was found shot twice in the kitchen of the Institute in June 2018.

His widow was convicted of the murder last month.

The case attracted much attention for an essay Crampton Brophy had written years before the crime, titled “How to murder your husband”.

“The thing I know about murder is that every one of us have it in him/her when pushed far enough,” she had said in the now-deleted post.

She listed a number of ways to commit mariticide, from guns and knives to poison and hitmen before writing “it is easier to wish people dead than to actually kill them”.

She added: “If the murder is supposed to set me free, I certainly don’t want to spend any time in jail”.

A judge ruled against admitting the essay as evidence at her trial because it was penned years earlier as part of a writing seminar.

But prosecutors did not need the text.

They successfully argued that Crampton Brophy had the motive and the means to murder her partner, showing the couple had fallen on hard times financially, and she stood to pocket a hefty insurance pay-out after his death.

Link to the rest at The BBC

PG suggests that, if you’re planning to commit a crime, it’s a very poor practice to write about a similar crime beforehand or afterwards.

That said, stupid people committing crimes makes life for law enforcement investigators a lot easier.

If you spend a few days as an observer in criminal court, you’ll hear a lot about what one of PG’s granddaughters calls, “bad choices.”

How art is used against artists, like Young Thug, in court

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

Blogging Resumes Tomorrow

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.

Lord of the Rings fan fiction writer sued for publishing own sequel

From The BBC:

A fan fiction writer has been sued by the estate of JRR Tolkien for copyright after publishing his own sequel to The Lord of the Rings.

US-based author Demetrious Polychron published a book called The Fellowship of the King in 2022.

He dubbed it “the pitch-perfect sequel to The Lord of the Rings.”

The court ruled that Polychron must stop distributing copies of the book and destroy all physical and electronic copies.

. . . .

In April 2023 Polychron attempted to sue the Tolkein estate and Amazon, claiming the TV series, Rings of Power, infringed the copyright in his book.

The case was dismissed after the judge ruled that Polychron’s own book was infringing on Amazon’s prequel that was released in September 2022.

The Tolkien Estate then filed a separate lawsuit against Polychron for an injunction to stop The Fellowship of the King from being further distributed.

On Thursday Judge Steven V Wilson called Polychron’s lawsuit “frivolous and unreasonably filed” and granted the permanent injunction, preventing him from selling his book and any other planned sequels, of which there were six.

The court also awarded lawyer’s fees totalling $134,000 (£106,000) to the Tolkien Estate and Amazon in connection with Polychron’s lawsuit.

The estate’s UK solicitor, Steven Maier of Maier Blackburn, said: “This is an important success for the Tolkien Estate, which will not permit unauthorised authors and publishers to monetise JRR Tolkien’s much-loved works in this way.

“This case involved a serious infringement of The Lord of the Rings copyright, undertaken on a commercial basis, and the estate hopes that the award of a permanent injunction and attorneys’ fees will be sufficient to dissuade others who may have similar intentions.”

Link to the rest at The BBC

PG hadn’t heard of the author named in the OP nor could he find out who the author had managed to hire as his attorney.

That said, this was an easy-to-predict slam-dunk win for the Tolkien Estate and its licensees. Mr. Polychron’s actions weren’t even close to any sort of copyright gray area.

Any competent attorney Mr. Polychron might have consulted about his Tolkien “fanfiction” plans would have told the author that it was a really stupid idea. And that it would cause the Tolkien folks roaring into court swinging a legal Thor’s Hammer.

If Mr. Polychron was trying to build his name and reputation in the book business, even a maximum-flashy Manhattan public relations firm would have cost him much less.

How to Interpret the Constitution

From The Wall Street Journal:

It is a testament to our nation’s commitment to the rule of law that, nearly 250 years after its ratification, Americans still argue about the Constitution. And as often as we argue about the outcomes of controversial hot-button constitutional cases, we argue about the methodologies that lead judges to make their rulings.

Today originalism—the idea that constitutional meaning should be considered as being fixed at the time of enactment—is the dominant judicial philosophy, thanks in part to decades of persuasive arguments put forward by conservative and libertarian lawyers and scholars. But there are different flavors of originalism, corresponding to different understandings of “original meaning”—the framers’ intent, a provision’s “public meaning,” or its expected application, to name a few—and various liberal lawyers and politicians propose their own interpretative methods, originalist or otherwise.

Cass Sunstein, a Harvard Law School professor, has written “How to Interpret the Constitution,” a clear, accessible survey that discusses originalist interpretations alongside their competitors. Among those nonoriginalist approaches are John Hart Ely’s argument for democracy-enforcing judicial review, Ronald Dworkin’s moral reading of the Constitution and James Bradley Thayer’s advocacy of extreme judicial restraint. Those are all varieties of what has been called “living constitutionalism”; they all allow that the Constitution may evolve in meaning without being amended.

Mr. Sunstein argues repeatedly that the Constitution “does not contain the instructions for its own interpretation.” To some degree, this is true: Though statutes often include definitions in their wording, the Constitution, for the most part, does not. For example, the first words of the First Amendment read: “Congress shall make no law respecting an establishment of religion.” Neither “respecting,” “establishment,” nor “religion” are set out with clear definitions, and the Supreme Court has entertained many possible meanings for each over the course of American history.

There is also no explicit constitutional command, in the text of the Constitution or in the works of the Founders, that those tasked with interpreting it must follow any particular method, either originalist or living-constitutionalist. “The idea of interpretation is capacious,” Mr. Sunstein writes. He therefore proposes his own first principle for choosing among methods: “Any particular approach to the Constitution must be defended on the ground that it makes the relevant constitutional order better rather than worse.”

Originalists propose that we resolve constitutional ambiguities by unearthing the law’s true and unchanged meaning. Mr. Sunstein, by contrast, proposes that judges and other constitutional interpreters rely on their “firm intuitions” to determine which constitutional rules are desirable and then see what theories might yield those rules. To do so, the author borrows from John Rawls, the giant of 20th-century liberal political theory, to endorse a methodology of “reflective equilibrium,” in which “our moral and political judgments line up with one another, do not contradict each other, and support one another.”

“In deciding how to interpret the Constitution,” Mr. Sunstein writes, “we have to think about what we are most firmly committed to, and about what we are least likely to be willing to give up.” He reveals how he would apply this methodology in his own case by listing his 10 “fixed points,” or constitutional outcomes that resonate with his own sense of rightness and justice. They are “clearly correct” propositions in the author’s view and include the contentions that “the Constitution does not forbid maximum hour and minimum wage laws” and that “the First Amendment should be understood to give very broad protection to political speech.” Of course, you might believe exactly the opposite. That, to Mr. Sunstein, is equally legitimate. One begins to wonder at this point how much “interpretation” exactly is going on.

Consider Mr. Sunstein’s claim that judges and justices should interpret laws in a manner that improves the constitutional order. Why shouldn’t we just allow legislators, who figure nowhere in Mr. Sunstein’s philosophy, to make legitimate changes to legislation when needed? We have mechanisms for improving our nation’s laws, and we have one for improving our Constitution. The Republicans who revamped our constitutional system in the aftermath of the Civil War by devising the Reconstruction Amendments—banning slavery, guaranteeing the equal protection of the law and enforcing individual rights against the states—understood that they couldn’t simply project their moral and political views onto the unamended law. They had to change the Constitution.

Like most nonoriginalists, Mr. Sunstein evades the key insight that gives originalism its appeal. It begins with a phrase from the Constitution that refutes Mr. Sunstein’s premise that the document doesn’t contain instructions for its own interpretation. “This Constitution,” it proclaims, “shall be the supreme law of the land.” The Constitution is a legal document, even if its provisions are sometimes more ambiguous at first glance than we would want a law to be. And laws have the crucial characteristic sometimes known as “fixation”: They remain unchanged until changed by authorized means. Constitutional interpretation must be constrained by this basic principle of legal reasoning.

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

Italian Publishers: Toughen Europe’s AI Act Regulations

From Publishing Perspectives:

A potentially pivotal moment occurs this week in the closely watched development of the European Union’s “AI Act.”

Markets in many parts of the world, not just in Europe, are following along for clues and cues in terms of how artificial intelligence can be developed and applied “safely”—and even that term safely can be hotly debated, of course.

On Wednesday (December 6), the AI Act is to have its fifth “trilogue.” That’s the term for a negotiating session in which the European Parliament, the European Commission, and the Council of the European Union. Previous trilogue meetings on the Artificial Intelligence Act were held in June, July, September, and October. Originally, the idea was that this December trilogue would finalize the bill for the bloc this year, but there’s increasing concern that the timing of such progress will be take longer. This, on legislation that saw its first draft in 2021 and was first proposed in 2019.

What has happened in the interim—you won’t be surprised to read—is the rise of “foundation models.” Sometimes called “general purpose,” these are the systems designed as large-language models built for “deep learning” that can be adapted for a wide array of scenarios. This contrasts, of course, with the concept of a traditional program designed to handle a specific and narrow task set, maybe speeding up a bit of office drudge work. Such less ambitious programs require nothing like some foundation models’ contentious free-range feeding on information—often copyrighted content—to build their algorithmic-response structures.

A foundation model is a form of what’s called “generative artificial intelligence,” meaning that it can generate output from a broad base of ingested data.

At the highest intentional level, the over-arching core of discussion around this legislation has been, to quote the EU’s material, to handle “concerns especially with regard to safety, security, and fundamental rights protection.” But if the devil is usually in the details, a construct of digital details presents such a major chance for devilry that many observers now are worried about this important legislation’s progress.

Needless to say, the upheaval around OpenAI last month when its board fired and the rehired Sam Altman seemed to confirm fears that a major corporate player in the AI space could be thrown into turmoil by inscrutable internal governance issues. As Kevin Chan at the Associated Press is writing today, once the Altman fiasco had played out, European Commissioner Thierry Breton said at an AI conference, “‘At least things are now clear’ that companies like OpenAI defend their businesses and not the public interest.”

And yet, much discussed in coverage on the run-up to Wednesday’s trilogue is an unexpected resistance that’s been mounted by France, Spain, and Italy, which presented a pitch for self-regulation among AI players.

At The Guardian, John Naughton wrote up this “Franco-German-Italian volte face,” as he calls it, as the result of everyone’s worst fears: “the power of the corporate lobbying that has been brought to bear on everyone in Brussels and European capitals generally.” More broadly, the assumption is that in each EU member-state seeming to make that about-face and start talking of self-regulation as the way to go, something has been promised by industry advocates for the local national AI companies, a divide-and-conquer effort by lobbyists.

Link to the rest at Publishing Perspectives

PG notes that the reaction of the European publishers sounds a lot like that of American publishers.

As far as regulation is concerned, the current AI programs/services he has tried have their AI capabilities online, so geographical fences like the the European Union’s “AI Act” are unlikely to prevent individuals or organizations who wish to use AI services offered over the internet from a provider located anywhere in the world.

As one cyberlaw website put it, “Some believe that the internet should be operated as if it were a land all its own, independent of national policy.”

Sarah Silverman Hits Stumbling Block in AI Copyright Infringement Lawsuit Against Meta

From The Hollywood Reporter:

A federal judge has dismissed most of Sarah Silverman‘s lawsuit against Meta over the unauthorized use of authors’ copyrighted books to train its generative artificial intelligence model, marking the second ruling from a court siding with AI firms on novel intellectual property questions presented in the legal battle.

U.S. District Judge Vince Chhabria on Monday offered a full-throated denial of one of the authors’ core theories that Meta’s AI system is itself an infringing derivative work made possible only by information extracted from copyrighted material. “This is nonsensical,” he wrote in the order. “There is no way to understand the LLaMA models themselves as a recasting or adaptation of any of the plaintiffs’ books.”

Another of Silverman’s arguments that every result produced by Meta’s AI tools constitutes copyright infringement was dismissed because she didn’t offer evidence that any of the outputs “could be understood as recasting, transforming, or adapting the plaintiffs’ books.” Chhabria gave her lawyers a chance to replead the claim, along with five others that weren’t allowed to advance.

Notably, Meta didn’t move to dismiss the allegation that the copying of books for purposes of training its AI model rises to the level of copyright infringement.

The ruling builds upon findings from another federal judge overseeing a lawsuit from artists suing AI art generators over the use of billions of images downloaded from the Internet as training data. In that case, U.S. District Judge William Orrick similarly delivered a blow to fundamental contentions in the lawsuit by questioning whether artists can substantiate copyright infringement in the absence of identical material created by the AI tools. He called the allegations “defective in numerous respects.”

Some of the issues presented in the litigation could decide whether creators are compensated for the use of their material to train human-mimicking chatbots that have the potential to undercut their labor. AI companies maintain that they don’t have to secure licenses because they’re protected by the fair use defense to copyright infringement.

According to the complaint filed in July, Meta’s AI model “copies each piece of text in the training dataset” and then “progressively adjusts its output to more closely resemble” expression extracted from the training dataset. The lawsuit revolved around the claim that the entire purpose of LLaMA is to imitate copyrighted expression and that the entire model should be considered an infringing derivative work.

But Chhabria called the argument “not viable” in the absence of allegations or evidence suggesting that LLaMA, short for Large Language Model Meta AI, has been “recast, transformed, or adapted” based on a preexisting, copyrighted work.

Another of Silverman’s main theories — along with other creators suing AI firms – was that every output produced by AI models are infringing derivatives, with the companies benefiting from every answer initiated by third-party users allegedly constituting an act of vicarious infringement. The judge concluded that her lawyers, who also represent the artists suing StabilityAI, DeviantArt and Midjourney, are “wrong to say that”  — because their books were duplicated in full as part of the LLaMA training process — evidence of substantially similar outputs isn’t necessary.

Link to the rest at The Hollywood Reporter

ACLU, Parents, and Students Sue Alaska School District Over Book Bans

From Publishers Weekly:

On November 17, a group of eight local plaintiffs joined by the American Civil Liberties Union of Alaska and advocacy group the Northern Justice project filed suit against Matanuska-Susitna Borough (Mat-Su) school district north of Anchorage, seeking the return of 56 books said to be improperly banned from school shelves. The suit was filed on behalf of six parents of minor children and two Mat-Su students who are over the age of 18, who claim that the actions of the school board violated their “First and Fourteenth Amendment rights” to free speech and political expression.

“On April 21, 2023, the School Board ordered the Matanuska-Susitna Borough School District to remove 56 books from all of its school libraries because the books contained ideas or concepts that either the Board or some members of the public did not like. The District carried out this removal of books,” the complaint states. While acknowledging that “school districts have broad discretion in the management of school affairs,” the suit argues that “such broad discretion is still bounded by the protections of the U.S. Constitution” and that the districts removal of the books infringes on students First Amendment right “to receive ideas and information as a necessary predicate to their meaningful exercise of the rights of speech, press, and political freedom.”

The books ordered removed by the board include classics such as Toni Morrison’s The Bluest Eye, Kurt Vonnegut’s Slaughterhouse Five, and Khaled Hosseini’s The Kite Runner. The removed books also include books “with protagonists of color or LGBTQ+ protagonists” and “nonfiction reference materials discussing adolescent health and development.”

The plaintiffs seek “an injunction, declaratory relief, and nominal damages against the Board’s unconstitutional removal of books, to protect their right and freedom to explore a wide range of ideas.”

In a statement, ACLU of Alaska legal director Ruth Botstein, said the Mat-Su board put “its personal views” ahead of the rights of students and parents it serves. “Removing classic reads and award-winning literature from bookshelves violates students’ rights to receive ideas and information. This is a foundational component of the rights of young Alaskans to exercise freedom of speech, press, and political expression. Book banning in any public setting is unacceptable.”

The suit in Alaska is the latest in a legal effort to turn back an ongoing, politically-organized nationwide wave of book banning. In addition to the action in Alaska, an ACLU suit is currently pending in Missouri, challenging Senate Bill 775, a school library obscenity law that opponents say forces librarians to censor their collections under the “threat of arbitrary enforcement of imprisonment or fines.”

Link to the rest at Publishers Weekly

FTC calls out consumer protection and competition intersections in Copyright Office AI proceeding

From JD Supra:

The U.S. Federal Trade Commission (FTC) staked out its role in policing the potential competition and consumer protection implications of generative AI technologies’ use of copyrighted materials in comments submitted in the U.S. Copyright Office’s proceeding on AI and copyright. The proceeding seeks information on the use of copyrighted works to train AI models, levels of transparency and disclosure needed regarding copyrighted works, and the legal status of AI-generated outputs, among other things. In its comments, the FTC reiterated its expertise addressing competition and consumer protection issues involving AI, identified copyright issues related to generative AI that implicate competition and consumer protection policy, and introduced testimony from an October 2023 FTC roundtable with creative professionals. The FTC also promised vigorous efforts to protect consumers in the rapidly evolving AI marketplace.

The FTC’s AI Enforcement

The FTC’s mandate – under the FTC Act and other statutes – to promote competition and protect consumers gives it the power to address unfair or deceptive acts or practices and unfair methods of competition. The FTC has characterized AI as the latest in a series of new technologies that pose novel and important challenges for consumers, workers, and businesses, which falls within the purview of the FTC’s “economy-wide mission.” According to the FTC, as companies deploy AI-enabled systems across a wide range of industries and people incorporate AI-powered products and services into their daily lives, the potential for harm to consumers increases.

The FTC has experience applying its existing legal authority to address alleged unlawful practices and unfair competition involving AI. Prior actions and guidance have addressed a variety of consumer protection allegations, such as algorithms that rely on consumer’s personal information, algorithm-driven recommendations communicating deceptive claims, and algorithms making biased decisions. The FTC has also called attention to potential advertising concerns relating to AI, and has highlighted the risk of fraud stemming from the use of chatbots, deepfakes, and voice clones.

Consumer Protection, Competition, and Copyright

In its comments to the Copyright Office, the FTC highlights important intersections across consumer protection, competition law and policy, and copyright law and policy.  The Commission’s comments note three areas of interest where the FTC might seek to address unfair or deceptive practices to ensure a competitive marketplace.

First, the FTC notes that decisions about where to draw the line between human creation and AI-generated content may cause harm to both creators and consumers. Creators may be harmed by their work being used to train an AI tool without their consent. Consumers, on the other hand, may be harmed if there is a lack of transparency about AI authorship.

Second, the FTC argues that questions about how to address liability for AI-generated content can implicate consumer protection and competition policy. These questions include what liability principles should apply, assigning and apportioning liability, treatment of pirated content, and the role of disclosures, among other issues. As policymakers seek answers to these questions, there may be overlap and potentially some conflict with consumer protection or competition interests. For example, as the FTC notes, “the use of pirated or misuse of copyrighted materials could be an unfair practice or unfair method of competition under Section 5 of the FTC Act.”

Third, the FTC argues that consumer protection and competition principles may call for policy protections that “go beyond the scope of rights and the extent of liability under the copyright laws.” There may be times when consumer protection or competition policy and copyright policy are aligned, as in the example above where misuse of copyrighted materials would likely violate both the FTC Act and copyright law. The FTC raises the possibility, however, that there may also be circumstances where companies run afoul of Section 5 with their AI-generated content even if that content would not violate copyright law.

Impact of Generative AI on Creative Economy

The FTC also seeks to highlight impacts on content creators. Along with its written remarks, the FTC submitted the transcript of its October 4, 2023, “Creative Economy and Generative AI” roundtable, which featured musicians, authors, actors, artists, software developers, and other creative professionals discussing the impact of generative AI on their work. The FTC transcript noted views shared by participants on topics such as: (1) works being used to train generative AI without participants’ consent; (2) insufficient or ineffective mechanisms for obtaining consent, including reliance on opt-out approaches; (3) lack of transparency and disclosure about training data and authorship of AI-generated content; (4) the ample use cases of AI for creative professionals but the need for better guardrails to protect creators; and (5) the putatively great power imbalance between the creators and the generative AI companies.

Link to the rest at JD Supra

PG is anything but an expert on the FTC’s jurisdiction, but color him skeptical about whether the agency has jurisdiction over Generative AI programs.

PG did some quick and dirty research and found the FTC has about 1000 people on its payroll, about two-thirds of whom are attorneys. As PG has mentioned on multiple occasions, he’s a retired attorney and has high regard for the general intelligence of his fellow attorneys.

However, with the exception of patent attorneys, who must have an undergraduate degree in the science or engineering fields, a large portion of the bar members anywhere PG knows about have non-science or engineering or math degrees as undergraduates. Indeed, law school is one of the few options for a humanities major who would like to be able to support a family in a reasonably comfortable manner.

In short, the people working at the FTC undoubtedly have a lot of opinions about artificial intelligence, but little ability to understand how it works or what dangers are real and what dangers are imaginary. The fact that judges are all attorneys gives PG another reason to worry about involving AI research in the US legal system.

Here’s a statement from the FTC website about the agency’s mission:

The FTC enforces federal consumer protection laws that prevent fraud, deception and unfair business practices. The Commission also enforces federal antitrust laws that prohibit anticompetitive mergers and other business practices that could lead to higher prices, fewer choices, or less innovation.

Whether combating telemarketing fraud, Internet scams or price-fixing schemes, the FTC’s mission is to protect consumers and promote competition.

Perhaps PG missed something, but telemarketing fraud, internet scams or price-fixing schemes don’t sound like the main features of large language models.

First Sale Doctrine in Trademark and Copyright Law

From BonaLaw:

Federal law allows owners of copyrights or trademarks to file suit for alleged infringement of their exclusive rights. Through a lawsuit, they can recover damages or ask a court to enjoin further unauthorized use of their protected materials. Certain uses of copyrighted or trademarked materials are allowed by law, even without the owner’s permission.

The first sale doctrine allows the resale of products that constitute or contain someone else’s intellectual property without the owner’s permission, as long as the person lawfully owns the product. The first sale doctrine is codified in U.S. copyright law, and court decisions have applied it to trademarks. It can serve as a defense to a copyright or trademark infringement lawsuit in certain situations.

The First Sale Doctrine in Copyright Law

The first sale doctrine states that a copyright owner cannot prevent someone who has lawfully purchased a copyrighted work, such as a book, from selling, loaning, or giving that item to someone else. This allows the distribution of copyrighted materials beyond the initial sale by the copyright owner. Without the first sale doctrine, no one would be able to sell or otherwise dispose of books, CDs, DVDs, or other tangible works that they have purchased without the copyright owner’s authorization. Bookstores and libraries would need permission every time that they sold or loaned a book.

Federal copyright law has codified the first sale doctrine at 17 U.S.C. § 109. Limits apply to the doctrine when a copyrighted work is in digital rather than physical form. Section 109 also contains exceptions for certain types of media.

Limits on Resale of Digital Copies

The first sale doctrine pre-dates the digital era. It assumes that copyrighted materials exist in physical form. People now buy mp3 files instead of CDs, digital movies instead of DVDs, and ebooks instead of books. Digital media files are not distinct, tangible items that can literally change hands after a sale. The process of copying a digital file is simpler than copying a CD or DVD, and much simpler than copying a book.

The U.S. Copyright Office has concluded that the first sale doctrine does not apply to the unauthorized resale of copyrighted materials in digital form. In a report issued in 2001, it stated that transmitting a digital file from one user to another creates a new copy of the copyrighted work.

Several court decisions have adopted the Copyright Office’s conclusions. For example, in 2018, the Second Circuit Court of Appeals affirmed a New York federal court’s ruling against a company that allowed consumers to sell digital music files that they had purchased through the iTunes store.

Sale vs. Licensing of Work

For the first sale doctrine to apply, the person attempting to sell their copy of a copyrighted work must actually own that copy. A person who buys a book from a bookstore owns the paper on which the book is printed. They can sell that item to someone else. The same can be said for a CD purchased at a music store. That said, not all exchanges of money for copyrighted materials constitute a “sale.”

Many software companies include end-user license agreements (EULAs), stating that the consumer is only purchasing a license to use their software. If the EULA states that the license is not transferable, the consumer cannot legally sell or otherwise convey the software to anyone else.

Link to the rest at BonaLaw

Mark Meadows sued by book publisher over false election claims

From The Hill:

The publisher of Mark Meadows’s book is suing the former White House chief of staff, arguing in court filings Friday morning that he violated an agreement with All Seasons Press by including false statements about former President Trump’s claims surrounding the 2020 election.

“Meadows, the former White House Chief of Staff under President Donald J. Trump, promised and represented that ‘all statements contained in the Work are true and based on reasonable research for accuracy’ and that he ‘has not made any misrepresentations to the Publisher about the Work,’” the publishing company writes in its suit, filed in court in Sarasota County, Fla.

“Meadows breached those warranties causing ASP to suffer significant monetary and reputational damage when the media widely reported … that he warned President Trump against claiming that election fraud corrupted the electoral votes cast in the 2020 Presidential Election and that neither he nor former President Trump actually believed such claims.”

The suit comes after ABC News reported that Meadows received immunity to testify before a grand jury convened to hear evidence from special counsel Jack Smith, reportedly contradicting statements he made in his book. 

. . . .

Meadows’s book, “The Chief’s Chief,” was published in 2021 and spends ample time reflecting on the election.

“Meadows’ reported statements to the Special Prosecutor and/or his staff and his reported grand jury testimony squarely contradict the statements in his Book, one central theme of which is that President Trump was the true winner of the 2020 Presidential Election and that election was ‘stolen’ and ‘rigged’ with the help from ‘allies in the liberal media,’ who ignored ‘actual evidence of fraud,’” the company writes in the filing.

According to Meadows’s testimony, as reported by ABC News, Trump was being “dishonest” with voters when he claimed victory on election night. ABC reported that Meadows admitted Trump lost the election when questioned by prosecutors.

Link to the rest at The Hill

Court Offers First Glimpse Into Whether AI Machine Learning Is Copyright Infringement Or Fair Use

From Mondaq:

As we previously blogged, multiple generative AI platforms are facing lawsuits alleging that the unauthorized use of copyright-protected material to train artificial intelligence constitutes copyright infringement.  A key defense in those cases is fair use.  Specifically, AI platforms contend that they don’t need a license to use copyright-protected content—whether scraped from the Internet or obtained from a pirate trove of books—for the purpose of developing and improving large language models (LLMs) under the theory that such use is transformative and fair use under the Copyright Act.  Whether fair use prevails in this battle is one of the biggest copyright questions of the day.

While many of the generative AI actions are pending in the U.S. District Court for the Northern District of California, a federal court in Delaware recently had the opportunity to opine on the merits of this important fair use question.  In Thomson Reuters v. Ross Intelligence, 2023 WL 6210901 (D. Del. Sept. 25, 2023), the owner of Westlaw (Thomson Reuters) claims, among other things, that an AI startup (Ross Intelligence) infringed Thomson Reuters’ copyright by using Westlaw’s headnotes to train Ross’s legal AI model.  The parties cross moved for summary judgment on various grounds, including on Ross’s fair use defense.  

Though the decision explores multiple interesting questions of copyright law, including the copyrightability of Westlaw headnotes (maybe) and whether the Copyright Act preempts Thomson Reuters’ claim for tortious interference (yes), its analysis of Ross’s fair use defense—in particular, the court’s assessment of whether Ross’s alleged use of Westlaw’s headnotes (assuming they are protected by copyright) is “transformative—is where the court appears to have broken new ground.

The court begins its fair use analysis by discussing two cases from the Ninth Circuit that deal with so-called “intermediate copying.”  In Sega Enterprises v. Accolade, 977 F.2d 1510 (9th Cir. 1992), the court held that it was fair use for a company to copy Sega’s copyright-protected console code for the purpose of learning the software’s functional components and making new games that were compatible with Sega’s console.  Similarly, in Sony Computer Entertainment v. Connectix, 203 F.3d 596 (9th Cir. 2000), the Ninth Circuit held it was fair use for a company to create a copy of Sony’s software in order to create a new gaming platform that was compatible with Sony’s games.  The Thomson Reuters court noted that the Supreme Court “has cited these intermediate copying cases favorably, particularly in the context of ‘adapting the doctrine of fair use in light of rapid technological change.’”  2023 WL 6210901, at *8 (quoting Google v. Oracle, 141 S. Ct. 1183, 1198 (2021)) (cleaned up).

Thomson Reuters attempted to distinguish the intermediate-copying cases by arguing that, unlike the companies in Sega and Sony that merely sought to “study functionality or create compatibility,” Ross sought to train its AI with Westlaw’s “creative decisions” specifically to “replicate them” in the AI’s output.  Ross, on the other hand, contended that “its AI studied the headnotes and opinion quotes only to analyze language patterns, not to replicate Westlaw’s expression,” and thus was lawful “intermediate copying.”  The court held that whether Ross’s use was transformative would turn on the “precise nature of Ross’s actions.”  

Here’s the key text:

It was transformative intermediate copying if Ross’s AI only studied the language patterns in the headnotes to learn how to produce judicial opinion quotes.  But if Thomson Reuters is right that Ross used the untransformed text of headnotes to get its AI to replicate and reproduce the creative drafting done by Westlaw’s attorney-editors, then Ross’s comparisons to cases like Sega and Sony are not apt.

. . . .

To the extent that LLMs are ingesting copyright-protected material solely to understand language patterns and not to replicate their creative expression (which may very well be the case for many LLMs), this opinion suggests that using such material to train AI is transformative.  But if the material is being used to train AI to output the “creative drafting” discerned from the original, then the use is likely not transformative.  Thus, as the Thomson Reuters court observes, the fair use question in these cases may turn on the exact nature of the AI training process.

Link to the rest at Mondaq

PG apologizes if the rest of this post is boring for anyone who isn’t a law geek, but the following may help clarify PG’s interest.

The OP intrigued PG because he got into a bit of trouble a long time ago when he suggested, in an article he wrote for The Journal of the American Bar Association, that West Publishing didn’t have a legitimate copyright to the books it published that consisted of the opinions of a large number of courts across the country.

West was a venerable professional publisher, founded in 1872 to print law books for the use of attorneys and judges.

West evolved to publish the statutes for the United States government and every state.

West also published the court opinions written by judges in the federal court system and all states.

Because the statutes and case opinions are public documents, anyone who desires to publish them is free to do so.

West contended that the improvements it made in these public documents it published were protected by copyright laws.

West built up a large business based upon the changes it made to improve the quality of the federal and state court opinions. These included:

  1. West employees proofread the opinion and corrected grammatical errors.
  2. West employees checked all of the statutory and case citations included in the opinion and corrected them to reflect generally used conventions of legal citations. (Judges, like any other human beings, sometimes make mistakes when they write their opinions. The conventions used in creating such citations can make correctly creating the citations to statutes and cases an error-prone activity.)
  3. For example, “Stearns v. Ticketmaster Corp., 655 F.3d 1013 (9th Cir. 2011),” is West’s citation for the court opinion in the case of Stephen Stearns v. Ticketmaster Corp, et al (et al is an abbreviation of the Latin term “et alia,” which means “and others.”) that was published in volume 655 of the Federal Reporter, Third Series (identified by the abbreviation “F.3d”), beginning on page 1013. The citation also shows the decision was issued by the United States Court of Appeals for the Ninth Circuit (abbreviated as 9th Cir.), in 2011.
  4. It was and is considered bad form for an attorney to cite a case other than in the form prescribed by “Blue Book Citations” in legal documents submitted to a court. West citations were the basis for Blue Book Citations. As mentioned earlier, most judges were happy to have West correct their citation errors. That service helped a judge avoid snide remarks from other judges in the judicial cafeteria.

West also categorized cases according to a West-created “Key Number System.” This is a classification system that organizes cases by topic, allowing legal researchers to quickly find cases related to a particular issue. This system was created in the 19th century, starting with seven categories: persons, property, contracts, torts, crime, remedies, and government.

The Key Number System could be quite helpful before the digitization of cases and statutes.

In 1967, the Ohio State Bar Association entered into a $7,000 agreement with Data Corporation of Beavercreek, Ohio, to create a full-text, interactive research service of the Ohio statutes.

In 1973, Mead Data Central, the successor of Data Corporation, introduced LEXIS, an online computer research service that consisted of the full text of Ohio and New York codes and cases, the U.S.
code, and some federal case law. The LEXIS search engine was clunky by today’s standards, but it allowed attorneys to search the statutes and case opinions much faster and at a more granular level than could be done with West’s printed books.

West and LEXIS (Mead Data Central)

The If-Only Lawsuit

From Kristine Kathryn Rus ch:

The United States Justice Department is suing to stop the big merger of Penguin Random House and Simon & Schuster. That I can write about without a lot of research, because I’ve been following this merger for a long time.

. . . .

However, this suit is worth mentioning…

Because it’s fifteen to twenty years too late. The Authors Guild noted that in their response to the news of the DOJ suit:

Today’s decision by the DOJ was unexpected given that so many other major mergers and acquisitions in the publishing industry have gone through recently and over the last few decades with nary a raised eyebrow, leaving us with only a handful of companies dominating the industry.

Yeah. Exactly. Those of us who suffered through the previous mergers know what bullshit the PRH and S&S are feeding the press. No effect on competition? In the 1990s, my books routinely went to auction, and we always got a higher price for the books than the initial offer.

By the end of the decade and into the early part of this century, there was no one to have an auction with. The book had to be a potential (and obvious) blockbuster. One of my editors backed out of a possible deal when she heard that another editor at a different imprint in the same gigantic merged company wanted the book.

Oh, my editor said to me, she can pay you more, and their imprint will probably take over mine in a year or so.

Guess what? My editor was right. Eighteen months after the merger, the “overlapping” departments and imprints were cut as a cost-saving measure, putting my former editor out of a job, along with everyone else on her team. The cuts and trimming, for the sake of the stockholders, mostly hit the most experienced people in the purchased company (not the one that did the buying) because experienced folk are paid more.

. . . .

All the promises in the world mean nothing when large companies merge.

I read the complaint for the suit the day the suit was announced. The complaint is worth reading because, if nothing else, it’s a what-if. What if the DOJ had been on this as the mergers started twenty years ago? What would the traditional publishing landscape look like now?

I can tell you: It would look completely different. Instead of the traditional part of the industry being dominated by five large conglomerates, the traditional part of the industry would look the same or better than it did in the early 1990s. There would be a lot of publishing houses, a lot of working editors, a lot of imprints, and a lot of competition.

Indie wouldn’t be as attractive for many big name writers because those writers would still be working. Just this morning, I discovered that a writer whose work I loved decades ago has gone indie. Why? Because he hasn’t been able to get anyone to buy his books for…you guessed it…twenty years.

This happened to a worldwide bestseller who hit the top of the major lists for decades and whose work was made into three feature films. He couldn’t sell another book because his genre was “passé.” His genre? Horror. No one at the big houses would touch horror twenty years ago, and even the smaller ones looked askance at it.

If anyone had any brains, they would have seen that the genre would become as big as it is now. Right now, the people greenlighting movies and TV shows and buying books are the generation who grew up reading R.L. Stine. Of course, they want more horror. It was on the horizon.

The multitudinous publishing houses of the 1980s and 1990s could have afforded to play the waiting game—at least one or two of them, or maybe even three of them. Even better, the editors there who would have had long careers would have seen the writing on the wall and pushed out reissues of this writer’s books as the horror boom started.

The five large companies that exist now have no idea what they have in inventory. They have no institutional memory because they’re really not an institution. They’re parts, slammed together to make a great stock portfolio, so that they can be traded and bring in profits for the stockholders. Forget the books, forget the product, forget the employees, forget the readers. The books literally are widgets that are, in the minds of the people running the company, interchangeable.

If this weren’t true, then Simon & Schuster would not be up for sale. ViacomCBS would keep it and mine the inventory for projects for various TV, streaming, and movie projects, not to mention gaming rights and other things. A book publisher owned by a media company? Sounds like a surefire way to make even more money, right?

Nope.

There’s no vision here.

And the suit by DOJ is as stuck in the past as that little dream of mine was. Yes, this merger by PRH and S&S is truly anti-competitive, just like all the other mergers were.  And the impact, should the merger go through, on the traditional publishing industry will be profound…although not as profound as all of the mergers that preceded it.

What has changed is the rise of indie publishing. Writers do have somewhere else to go. They can publish their own works. They can reach the same readers that these large companies can, because these companies are no longer interested in publishing books. They’re just manufacturing widgets.

One very ironic thing that has emerged during the entire discussion of the merger is this: For about a decade now, companies like PRH and S&S denied that indie writers in any way contributed to the publishing industry. “Flotsam and jetsam” were some of the words floated around about indie publishing; “garbage” was another.

Now, though? Now that they need us? We’re part of their defense.

Oh, no, the attorneys for PRH and S&S have been saying all year, we’re not in control of the market. See this large thriving market over here? Those indie writers? They’re part of the industry too.

. . . .

The traditional publishing industry, as I have written many, many, many times, is broken. New writers can no longer anticipate having a career in the traditional publishing industry, let alone making a living at writing. And even a lot of the big guns are watching their income fade because of the policies and behaviors of these megacorporations.

Sure, there are always a handful of books that make millions. But once upon a time (twenty-five years ago), there were hundreds of books that made their authors millions. Enough books that Publisher’s Weekly devoted an entire month of issues every spring to cover the sales figures, never going below 250,000 for hardcovers and 500,000 for mass market paperbacks.

Link to the rest at Kristine Kathryn Rusch

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.