The Onion tells the Supreme Court – seriously – that satire is no laughing matter

From CNN:

The Onion – a publication best known for its tongue-in-cheek, satirical postings on politics and world events – has taken the very serious step of filing an amicus brief before the Supreme Court.

It is wading into legal advocacy by asking the high court to hear a case about an Ohio man who was arrested and later acquitted for creating a fake Facebook page that looked nearly identical to a local police department’s site.

“Americans can be put in jail for poking fun at the government? This was a surprise to America’s Finest News Source and an uncomfortable learning experience for its editorial team,” the site’s lawyers wrote.

Indeed, The Onion said the headlines surrounding this case seemed like they were ripped off the front pages of its own publication.

The Onion’s amicus brief is itself written in a very tongue-in-cheek, satirical way, though its ultimate aim is genuine – to convince the Supreme Court to take up the case involving free speech and qualified immunity, a legal doctrine that largely shields law enforcement officers from constitutional claims and one that the justices have largely avoided questioning in recent cases.

“The Onion cannot stand idly by in the face of a ruling that threatens to disembowel a form of rhetoric that has existed for millennia, that is particularly potent in the realm of political debate, and that, purely incidentally, forms the basis of The Onion’s writers’ paychecks,” the brief says.

The man at the center of the case, Anthony Novak, was arrested in 2016 after he launched the Facebook page that mirrored the Parma Ohio Police Department’s official Facebook page. Police accused Novak of posting derogatory and inflammatory information under the guise of real officials from the police department, complete with fake job postings accompanied by notifications that the department discouraged minorities from applying.

Novak was charged with one felony count of disrupting public services, but was later acquitted at trial.

Novak’s attempts to sue the police department for violating his free speech rights were most recently stopped by the Sixth US Circuit Court of Appeals, where a three-judge panel ruled in April that because officers there reasonably believed they were acting within the bounds of the law, Novak could not continue with his lawsuit against them.

But the panel of judges still was critical of the actions of the police officials.

“Granting the officers qualified immunity does not mean their actions were justified or should be condoned,” the appeals court wrote. “Indeed, it is cases like these when government officials have particular obligation to act reasonably. Was Novak’s Facebook page worth a criminal prosecution, two appeals, and countless hours of Novak’s and the government’s time? We have our doubts.”

Link to the rest at CNN

PG can’t believe that the local Ohio city attorney actually pursued a felony charge in this matter and that local judges failed to immediately dismiss it.

PG notes that the appellate court’s opinion identifies the city’s police management personnel and the two local judges by name, which is not necessary for its written decision. PG suspects this may have represented a legal backhand to embarrass the individuals involved for their stupidity even if the appeals court found Mr. Novak’s claim could not be pursued.

You can read the Sixth Circuit’s full opinion here.

Supreme Court to Weigh if YouTube, Twitter, Facebook Are Liable for Users’ Content

From The Wall Street Journal:

The Supreme Court has agreed to decide whether social-media platforms can be held liable for terrorist propaganda uploaded by users, opening a new challenge to the broad legal immunity provided to internet companies by the law known as Section 230.

The court on Monday took up a set of cases in which families of terrorism victims allege Twitter, Facebook and YouTube bear some responsibility for attacks by Islamic State, based on content posted on those sites.

Section 230 of the Communications Decency Act has come under intense scrutiny from lawmakers in recent years, but this is the first time the Supreme Court has moved to weigh in on the foundational internet law.

The eventual ruling could have repercussions for businesses and internet users worldwide, said Anupam Chander, a professor at Georgetown University Law Center.

At issue are the “algorithmic processes for information dissemination that all internet platforms use,” Mr. Chander said.

The court agreed to take up Gonzalez v. Google, an appeal by the family of Nohemi Gonzalez, a young woman killed in an ISIS attack in Paris in 2015. Ms. Gonzalez’s family alleges YouTube, a subsidiary of Google owner Alphabet Inc., aided ISIS by recommending the terrorist group’s videos to users.

The court also agreed to hear a similar appeal, Twitter Inc. v. Taamneh, brought by family members of Nawras Alassaf, who was killed in an ISIS attack at an Istanbul nightclub in 2017. Mr. Alassaf’s relatives allege Twitter, Google and Facebook parent company Meta Platforms Inc. all provided material support to ISIS and are “the vehicle of choice in spreading propaganda.”

Lawyers for Google, Twitter and Facebook have said in court filings that they have made extensive efforts to remove ISIS content and that there is no direct causal link between the websites and the Paris and Istanbul attacks.

. . . .

Section 230 helped build the modern-day internet. The statute acts as a shield, saying that internet companies generally aren’t liable for harmful content user posts on their sites. Section 230 also allows companies to remove content they deem objectionable without liability, as long as they act in good faith.

In the Gonzalez case, the plaintiffs alleged Google knowingly allowed its algorithms to recommend and target ISIS recruitment videos to users, allowing the group to spread its message.

The case raises the question of whether Section 230 grants immunity for recommendations made by algorithms or if it only applies to editorial decisions—like removing content—made by representatives of internet companies.

“[W]hether Section 230 applies to these algorithm-generated recommendations is of enormous practical importance,” the family argued in their petition to the high court. “Interactive computer services constantly direct such recommendations, in one form or another, at virtually every adult and child in the United States who uses social media.”

Link to the rest at The Wall Street Journal

Amazon’s deal spree raises ‘No. 1 question’ from investors

From Yahoo Finance:

Amazon (AMZN) has telegraphed to investors and the world that deals are key to its future, but those transactions create antitrust risks — and investors are taking notice.

. . . .

Amazon has made headlines for its big-ticket dealmaking in recent months. The company acquired both subscription health care provider OneMedical (ONEM) and Roomba-maker iRobot in quick succession, for $3.9 billion and $1.7 billion respectively. However, investors have been concerned that Amazon’s deals, including the buyout of vacuum-making iRobot, are primed to face an Federal Trade Commission (FTC) challenge.

“It’s the No. 1 question asked,” Thill said. “It comes up in every investor conversation and I think, clearly, they’re not going to block a vacuum cleaner company from being bought. I don’t think they’ll have an issue there, but [antitrust scrutiny] does prevent Amazon from doing other software acquisitions and e-commerce acquisitions.”

Amazon has famously made some of the biggest deals out there in the last decade or so. In 2017, the company bought upscale grocer Whole Foods for a jaw-dropping $13.4 billion. Soon thereafter, Amazon dropped another near-billion to acquire online pharmacy PillPack. It hasn’t just been recent either — back in 2009, even in the depths of the recession, Amazon closed its deal to buy online retailer Zappos for $1.2 billion. Earlier this year, Amazon also closed its $8.6 billion acquisition of MGM.

However, major deals aren’t all that’s on the table for Amazon and other mega-cap tech companies. The innovation coming out of companies like Amazon and Alphabet-owned Google (GOOG, GOOGL) means they aren’t incentivized to exclusively focus on huge deals, according to Thill.

“There’s tons of innovation right now at Amazon and Google and others in tech, so I don’t think they necessarily need to go out and do big deals,” he said. “They’ll do smaller tuck-in deals.”

Still, it’s a question of what’s small to Amazon and which of these deals could finally push lawmakers over the edge. For example, Amazon’s iRobot buyout came under renewed scrutiny last week, when Sen. Elizabeth Warren and a group of lawmakers requested that the FTC reject the deal.

Amazon’s deals haven’t spurred federal action yet, but FTC Chair Lina Khan is a noted critic of Amazon, and her ascension has been linked to a series of her writings exploring what a breakup of the company would involve. Notably, the company has so far been subject to antitrust action at the state level. Recently, California sued Amazon, alleging that the restrictions it places on its third-party sellers are anticompetitive

. . . .

“It’s a question, it’s an overhang, it’s certainly in every investor conversation, in every meeting we go into, it’s the No. 1 question,” he said. “I think that the way they mitigate this risk is that they’ve been able to do M&A.”

Thill has a point. Though doing more deals is a risk, it’s also a safeguard. The Information has referred to it as Amazon’s “whack-a-mole” dealmaking strategy. The FTC can’t logistically challenge every single acquisition, so like Amazon, the regulator is going to need to pick its battles. While Amazon has to be careful going forward, so does the government, said Thill.

“They have to be careful… [Amazon’s] doing the right thing for their employees, their shareholders, and the ecosystem… Amazon is a huge employer, so the government also has to be careful with how much they regulate them, because they are an incredible, incredible vibrant source for the economy that’s helping many in their daily lives. So, there’s a fine balance that we have to walk and I think Amazon is doing that.”

Link to the rest at Yahoo Finance

PG notes that he hasn’t seen a whole lot of innovation in the KDP world. Indeed, he hasn’t seen much creative development in Zon’s bookselling business. An increment here and an increment there, but nothing very interesting.

Affirmative Action’s Big Win Always Had an Asterisk

From The Chronicle of Higher Education:

Ted Spencer still looks back. No one who lives through a grueling legal saga defined by questions about race, equity, and the Constitution could ever board up the windows to the past.

Spencer was director of admissions at the University of Michigan at Ann Arbor when the U.S. Supreme Court in 2003 decided two cases challenging the institution’s race-conscious admissions policies. The justices handed one plaintiff a victory in Gratz v. Bollinger. But Michigan won the day because the court’s ruling in a companion case, Grutter v. Bollinger, affirmed that colleges could continue considering applicants’ race and ethnicity as one of many factors. The landmark decision shored up the foundation on which a generation of admissions practices would stand. And many people in academe rejoiced.

But for Michigan, the celebration was fleeting: The opponents of affirmative action soon extinguished the university’s victory with a successful ballot initiative that banned the use of racial preferences throughout the state.

What Spencer sees in those momentous events is complicated: a triumph with a 10-foot-tall asterisk, a backlash presaging the lawsuits now looming over academe. This fall, the Supreme Court will hear two cases challenging the constitutionality of race-conscious admissions policies at Harvard University and the University of North Carolina at Chapel Hill. The court’s 6-3 conservative majority has been hacking down precedents such as Roe v. Wade. So there’s a good chance that it will shred Grutter, ending the longstanding use of race in admissions throughout the land.

You might dread that outcome or welcome it. Either way, Grutter matters because it invites the nation to consider what’s really at stake in the age-old debate over race-conscious admissions. It’s something more consequential than whether Becky with the Good Grades gets into her dream college. Grutter matters because it poses a fundamental question about fairness, asking us which kind of society we want to live in: one that clings to the ideal of colorblindness at all costs, or one that recognizes the ongoing struggle of integration? Because Grutter’slegacy might soon disappear into the whooshing downspout of history, it’s worth taking a look back.
Spencer, now retired, believes that many people have forgotten what the Michigan cases were all about, if they ever even knew: “I would tell colleagues, You can’t just say ‘Michigan was sued.’ You have to explain why, the background.”

His own story entwines with that background and the essential questions that Grutter poses. It’s the story of a Black man raised in the Deep South during segregation who became a leader in a field long dominated by white men.

Link to the rest at The Chronicle of Higher Education

PG notes that, while Gratz and Grutter were important affirmative action cases, the one that started it all was the US Supreme Court case titled Regents of the University of California v. Bakke, handed down in June of 1978.

The Bakke story stretches back to Brown v. Board of Education (1954) and the Civil Rights Act of 1964, which continued the process of desegregating schools and outlawed discrimination on the basis of race. Although Congress officially ended segregation, there was a reluctance to actually integrate schools, and a disparity in college-preparedness remained between races.

Here’s how The National Constitution Center describes Bakke:

The Bakke story stretches back to Brown v. Board of Education (1954) and the Civil Rights Act of 1964, which continued the process of desegregating schools and outlawed discrimination on the basis of race. Although Congress officially ended segregation, there was a reluctance to actually integrate schools, and a disparity in college-preparedness remained between races.

Thus, colleges like the University of California, Davis School of Medicine adopted policies of racial favoritism, policies designed to compensate for unfair disadvantages. Specifically, the school established a program to designate 16 of the 100 spots in each class for minority students.

Allan Bakke, a white male in his thirties, twice applied for admission at the school but was rejected, partially because of his advanced age. Bakke’s interviewer considered him “a very desirable candidate”; his GPA was comparable to other admittees and his MCAT scores were all significantly greater. Compared to the special admittees of UC Davis’s affirmative action program, he beat every student in every metric in both of his application classes.

Bakke, exasperated by the rejections, filed suit, contending that the University of California violated the equal protection guarantee of the 14th Amendment and the Civil Rights Act. Ironically, he argued, a law that was passed to promote equality was being employed for the opposite purpose.

The case rose through federal courts to reach the Supreme Court of California, which struck down the admissions policy and ordered Bakke’s admission. Shocked at the surprising judgment from a traditionally liberal court, the frustrated university requested a stay of admission. Shortly thereafter, the U.S. Supreme Court accepted the case for its October 1977 term.

National interest in the case was enormous—58 amicus briefs were filed, setting a Court record until 1989, and reflecting the many and diverse arguments on the issue.

Ultimately, the Court was mixed in its decision: six different Justices wrote opinions on the case, with Justice Lewis Powell writing the controlling opinion and virtually splitting his vote between two groups of four Justices.

Affirming the lower court, Powell and four of his colleagues determined that specific racial quotas in university admissions are unconstitutional. In Powell’s words, “The fatal flaw in … [UC’s] preferential program is its disregard of individual rights as guaranteed by the Fourteenth Amendment.”

The majority argued that, by explicitly differentiating racial groups for consideration, the university violated the Constitution’s guarantee of equal protection under the law. It was unfair, they said, that minorities were eligible for 100 spots in the class when whites could only vie for 84. Thus, the Court struck down racial quotas and ordered Bakke admitted.

Yet Powell also joined the remaining four Justices in affirming the legality of a program that considered racial background as one of many holistic factors in admissions decision. In his view, such a policy did not specifically exclude anyone from admission.

Discussing a Harvard race-awareness program, Powell argued that even though “race or ethnic background may be deemed a ‘plus’ in a particular applicant’s file … it does not insulate the individual from comparison with all other candidates for the available seats.” With each applicant considered for an array of qualities, someone like Bakke would not be “foreclosed from all consideration from [a] seat simply because he was not the right color or had the wrong surname.”

PG was just out of law school when Bakke was handed down and, when he read the decision, he had a sense he had that this decision hadn’t addressed all the issues it should have and would not stand the test of time. Basically, the Supreme Court kicked the can down the road.

Twenty-five years later, in the landmark case of Grutter v. Bollinger (2003), the Supreme Court affirmed its decision in Bakke by ruling that the University of Michigan Law School’s race-conscious admissions policy was constitutional because it did not involve the use of explicit quotas. But Bakke remains fundamental precedent on affirmative action.

Link to the rest at The National Constitution Center

When one encounters a Supreme Court decision in which “six different Justices wrote opinions,” one can be assured that the Court agreed on the outcome, but couldn’t agree exactly what legal theory or theories supported that outcome. A skeptical observer might conclude that the affirming justices knew the outcome they desired, but weren’t quite sure about how statutes and cases could be put together in a way that indicated those justices weren’t pulling a Constitutional right out of thin air.

Many reasonable people can and do agree that the Supreme Court caused a good outcome for a group of Americans that had been treated quite badly for a very long time.

Freeing them from slavery was an enormous and brutal undertaking that imposed an extremely high cost on both the North and the South. As PG has previously written, the Civil War, a war killed more Americans than were killed all the other wars in which the nation had engaged during its existence combined up to part-way through the Vietnam War, when, after over a hundred years, the death toll of American soldiers in all those other wars finally exceeded the death toll in the Civil War.

This coming November, over 50 years since the Bakke decision was handed down, the Supreme Court is scheduled to hear challenges to the consideration of race in the admissions process at Harvard and the University of North Carolina in two separate cases. More than a few court watchers think the Court will decide that what is now called affirmative action and/or diversity in college in the selection of applicants who are admitted to a college or university is unconstitutional if it is a lightly disguised version of racial discrimination against students of one or more races to favor students of another race.

One of the changes that has occurred over the past couple of decades is that affirmative action places a greater burden on applicants of Asian descent than it does on applicants who are white. To the best of PG’s recollection, admission of Asian students was not a factor considered by the Supreme Court in any of its previous major decisions on the topic of race and college admissions.

Virginia Won’t Ban Books for Obscenity—for Now

From Slate:

A Virginia state court judge dismissed the petitions against two books Tuesday, ending for now an attempt by local Republicans to rule the books obscene.

“I agree with the defense that the statute is facially invalid,” said retired judge Pamela S. Baskervill, who was assigned the case after all the local circuit court judges recused themselves. She was referring to the obscure Virginia state law that a Republican state legislator had used in his attempt to declare Maia Kobabe’s graphic memoir Gender Queer and Sarah Maas’ fantasy romance A Court of Mist and Fury “obscene for minors.”

Tim Anderson, a lawyer and Republican Virginia state delegate whose district includes Virginia Beach, argued in court that the statute, though inartfully worded, allowed a judge to rule on the books’ obscenity for a specific class of reader. (Another Republican, Tommy Altman, filed the petition; Altman recently lost his primary for a House seat in Virginia’s 2nd district.) “Even if one part of the law is deficient, it doesn’t make the entire law unconstitutional,” he argued. “Look, the General Assembly is a citizen legislature. We’re not lawmakers. Things like this happen and a law get written a confusing way.”

“But I have to interpret it!” Baskervill said from the bench. In her orders, she declared the law “unconstitutional on its face in that it authorizes a prior restraint that violates the First Amendment and the Constitution of Virginia.”

. . . .

The case—part stunt, part trial balloon—had drawn attention as a worrying salvo in the right wing’s continuing attempts to redefine obscenity to mean, as PEN’s Jonathan Friedman told me, “any mention of sexuality or other topics they find distasteful.” More than 10 lawyers appeared in court Tuesday opposing the petition—representing Maas, Kobabe, their publishers, Barnes and Noble, the ACLU, and a coalition of Virginia bookstores and literary nonprofits. In arguments, Barnes and Noble’s attorney, Bob Corn-Revere, rejected Anderson’s claims that he wasn’t trying to ban the books. “When you’re asking a court to make a ruling in criminal law that has the result of restricting the sale of a book—that’s censorship,” he said.

After Baskervill dismissed the case, I asked Eden Heilman, the legal director of the Virginia ACLU, if it didn’t seem annoying that the ruling found fault with the law, not with the operatives trying to use a bad law for bad ends. “No, we’re pleased she focused on the law,” Heilman said. “The law is the problem.” While this court decision won’t invalidate the statute—it would take the legislature, the Virginia Supreme Court, or the U.S. Supreme Court to do that—Heilman said she thought this decision would prevent other would-be litigants from attempting to use the law in the same way.

Link to the rest at Slate

PG says that any elected representative in a state legislature who says citizens who run for seats in that legislature are “not lawmakers” is a complete idiot.

They are running in such elections to become lawmakers. Voters choose them to become lawmakers. A majority of the legislators make laws, zillions of them, in every state in the US plus the federal government.

The judge who complains, “But I have to interpret it!” is also sounding a bit idiotic. That’s one of the things judges do on a regular basis – “Did Johnnie Outlaw violate Section 237 of the laws of the State of Schock?” If the answer is affirmative, the judge decides what punishment is appropriate. If the answer is negative, Johnnie goes free.

How to Use Images of Real People Without Violating Privacy and Publicity Rights

From Helen Sedwick:

Suppose you find the perfect image for your book cover on the internet—a plucky redhead with a perfect pout. Even better, the photo is available under a Creative Commons attribution-only license that permits commercial use. What a money saver!

But wait. Do you have a release from the plucky redhead? Do you need one?

Or you attend a writers’ conference and take photos of a famous author speaking at the podium. Later, you capture that same author when he is sloppy-faced and drunk at a large reception. Later still, you snap a photo of him punching a writing rival in the restroom. Can you post those images on Pinterest and Facebook without risking a lawsuit?

Writers should be nervous when incorporating images showing identifiable people in their blogs, books, or social media postings. Violating privacy and publicity rights is a potentially costly mistake.

But you don’t want to walk around with blank releases in your pocket. And what if the photos show hundreds of faces? Do you need releases from every recognizable person? Without releases, are you limited to posting photos of cute puppies and selfies?

Using Images with Identifiable People

The rules about using images with recognizable people come down to two considerations:

  • Did the person in the photo have a reasonable expectation of privacy?
  • How is the image being used?

You need to consider both. Passing one test is not enough.

Did the person has a reasonable expectation of privacy?

Generally, people do not have a reasonable expectation of privacy for anything they do in public. The exception is a performance or meeting where you are informed that taking photographs is prohibited. In those situations, you make an implied promise to honor the no-photo request as a condition to attending the performance or meeting.

If a photo was taken in a private setting, such as a home or office, you should assume you need permission before you post or publish any image showing identifiable people. Contact everyone recognizable in the photo and ask for a release. I provide a sample below.

So for the image of the redhead, look closely to see if the photo was taken in a public place? Since it is often impossible to know, I recommend against using any Creative Commons image showing recognizable faces unless it was obviously taken in a public place.

Regarding the famous author, you may assume the author had no expectation of privacy when speaking at the podium and getting drunk at the reception, since both were in public.

. . . .

Is your use commercial?

Do not use an image of a recognizable person for advertising or promotional purposes ever, even if it was taken in a public setting, is available under a Creative Commons license, or is in the public domain, unless you have written permission. Using anyone’s image for commercial purposes violates that person’s right to publicity. You could be liable for damages, including punitive damages. In some states, these rights survive for up to 75 years after a person’s death.

The line between commercial and non-commercial is fuzzy. Using an image on a book cover, t-shirts or other merchandise is commercial, but posting it on a blog or social media site that is informative and editorial is probably not. Use common sense. How would you feel if you were in the photo?

To return to our hypothetical famous author, you may post an image of the two of you shaking hands or sharing a beer, but don’t say or imply that the author gave your book glowing reviews without written consent. I would not put those images on the back of your book without consent; that’s too closely related to selling a product.

As for the plucky redhead, contact the original photographer and ask whether a release was obtained or is possible. If you use the image on your book cover without a release, it could cost you plenty.

Will your use imply any advocacy or endorsement?

Even if the use is not commercial, do not use a person’s likeness to imply that the person advocates or supports a certain political, religious, charitable or other position without a clear, written release. Again, this violates privacy and publicity rights.

. . . .

How high is the M.E. factor?

As an attorney, I am often asked, “Can someone sue me?” Unfortunately, just about anyone may sue you, even if the suit is frivolous. My rule of thumb about litigation risk is the M.E. Factor: money multiplied by emotion. If a lot of money is involved, then a lawsuit is likely even if there is little emotion involved. On the other hand, if someone is angry, offended, or threatened, then they are likely to sue regardless of a small financial stake. If you get someone peeved enough, you may awake one morning to a process server banging on your door.

Link to the rest at Helen Sedwick

PG says it’s always best to obtain the person’s permission. In writing and signed by the person.

If you’re obtaining an image from an established stock photo seller, you should be safer, but make certain that you’re obtaining the right to use the image for commercial purposes.

If you’re picking up an image online, even if the website says the image is offered under a Creative Commons License that permits commercial use (some Creative Commons licenses do not include permission for commercial use), you’re still not necessarily in the clear.

Anyone can post an image they find online and say the image is offered under a Creative Commons license. However, if the creator of the original image did not grant a Creative Commons license to the image to whomever posted it online, you’re still looking at a potential copyright violation.

The safest place to obtain stock photos for commercial use is a well-established and large stock photo vendor. Adobe is one prominent example.

California Senate passes bill limiting use of rap lyrics in court

From ABC News:

The California state Senate passed a bill that would limit the use of rap lyrics as evidence in criminal proceedings — a controversial and common practice by prosecutors that has garnered national attention amid the indictment in Georgia against rappers Young Thug and Gunna.

Bill AB 2799, which is expected to be signed by Gov. Gavin Newsom after clearing the state assembly, would be the first legislation of its kind to be signed into law.

According to the bill, the legislation seeks to “ensure that the use of an accused person’s creative expression will not be used to introduce stereotypes or activate bias against the defendant, nor as character or propensity evidence.”

Referencing the lyrics of hip-hop artists in criminal charges is not new and is a practice that has drawn criticism from both freedom-of-speech advocates and the musicians themselves, who argue that lyrics — often with no factual connection to a case — are not a true reflection of reality or the artists’ state of mind and serve to prejudice a jury against a defendant.

The bill, which was sponsored by assembly member Reggie Jones-Sawyer, would require a judge to determine the admissibility of the lyrics in question as evidence, and whether they are directly linked to an alleged crime.

. . . .

“It would also recognize that the use of rap lyrics and other creative line expression as circumstantial evidence of motive or intent is not a sufficient justification to overcome substantial evidence that the introduction of rap lyrics creates a substantial risk of unfair prejudice,” according to the text of the bill.

Similar legislation limiting the use of rap lyrics in court passed the New York state Senate earlier this year, but stalled in the state assembly. Lawmakers in Congress last month introduced the first federal legislation addressing this practice, garnering widespread support from the music industry.

. . . .

The Restoring Artistic Protection Act — the RAP Act — which was co-sponsored by Reps. Hank Johnson (D-Ga.) and Jamaal Bowman (D-N.Y.), seeks to amend the federal rules of evidence “to limit the admissibility of…a defendant’s creative or artistic expression” in a criminal proceeding, according to the text of the bill.

Supporters of the RAP Act include the Recording Academy, the Recording Industry Association of America, Universal Music Group, Sony Music Group, Warner Records, Atlantic Records, Warner Music Group and the Black Music Action Coalition.

“Evidence shows when juries believe lyrics to be rap lyrics, there’s a tendency to presume it’s a confession, whereas lyrics for other genres of music are understood to be art, not factual reporting,” Johnson said in a statement. “This act would ensure that our evidentiary standards protect the First Amendment right to freedom of expression.”

Link to the rest at ABC News

How the Sexual Revolution Has Hurt Women

From The Wall Street Journal:

Critics of free-market capitalism have observed that the pleasures of freedom are not equally available to all. As the economic historian and socialist R.H. Tawney wrote in 1931, “freedom for the pike is death for the minnows.” This is also true in the sexual marketplace, which was once strictly regulated but has now been made mostly free. In this case, however, the classes are not the workers and the bourgeoisie but, rather, men and women. More precisely, the group of people who have done particularly well from the free-marketization of sex are men high in the personality trait that psychologists call “sociosexuality”: the desire for sexual variety.

The standard questionnaire used by researchers to assess sociosexuality asks respondents how many different partners they have had sex with in the past 12 months, how many partners they have had sex with on only one occasion, and how often they have spontaneous fantasies about having sex with someone they just met, among other questions. Worldwide, there is a significant difference in average sociosexuality between the sexes, with men generally much keener to sow their wild oats than women are.

In a study of male and female sociosexuality across 48 countries published in the journal Behavioral and Brain Sciences in 2005, psychologist David Schmitt and colleagues found large sex differences to be “a cultural universal,” regardless of a nation’s level of economic and social equality between the sexes.

This difference is explained by what evolutionary biologists term “parental investment theory.” Put simply, women can produce offspring at a maximum rate of about one pregnancy a year, whereas promiscuous men can theoretically produce offspring every time they orgasm. Although there are some limited circumstances in which multiple short-term mating might be advantageous for women—in conditions of danger and scarcity, for instance, in which sex might be exchanged for resources and protection—in general, natural selection has favored women who are choosy about their mates.

We see this play out in male and female sexual behavior. Men, on average, prefer to have more sex and with a larger number of partners, while the vast majority of women, if given the option, prefer a committed relationship to casual sex. Sex buyers are almost exclusively male, and men watch a lot more pornography than women do.

Men and women also differ dramatically in their baseline levels of sexual disgust, with women much more likely to be revolted by the prospect of someone they find unattractive. Disgust induces a physiological response that can be measured through heart and respiration rate, blood pressure and salivation, although the individual may not be aware of these indicators, and studies find that, on average, the sexual disgust threshold is much lower for women than it is for men.

Being groped in a crowd, or leered at while traveling alone, or propositioned a little too forcefully in a bar—all of these situations can provoke this horrible emotion. It is an emotion that women in the sex industry are forced to repress. In fact, as the prostitution survivor Rachel Moran has written, the ability not to cry or vomit in response to sexual fear and disgust is one of the essential “skills” demanded by the industry.

Link to the rest at The Wall Street Journal

PG hesitated before publishing this post due to its content and the potential for improper comments.

He hopes that anyone who comments will do so without any adolescent commentary or “all men are pigs” attitudes.

A long time ago when PG was practicing retail law, he was appointed to represent an underage girl who had been treated badly by her mother’s boyfriend and perhaps other adult men. That experience made a deep impression on PG and he doesn’t believe he ever declined a pro bono or low-fee case where he was asked to represent a mistreated woman thereafter.

For the record, PG doesn’t claim to wear or have worn a halo in his legal life, but some types of cases really push his buttons.

Trial Ends in Government Challenge to Penguin Random House and Simon & Schuster Merger

From The Wall Street Journal:

A Justice Department lawyer delivered closing arguments Friday in an antitrust challenge to Penguin Random House’s planned acquisition of rival publisher Simon & Schuster, a test for the Biden administration’s aggressive approach to challenging corporate mergers.

“The merger will reduce the number of players in this market,” Justice Department lawyer John Read said, “and will clearly exacerbate the risk of coordination in the market.”

Lawyers for the publishers countered that the merger would benefit authors and consumers and that the government has failed to prove its case.

“It’s a good deal for all involved, including authors,” said Stephen Fishbein, a lawyer for Simon & Schuster, during closing remarks on Friday.

U.S. District Judge Florence Pan in Washington oversaw the three-week nonjury trial. She hasn’t said when she will rule on whether the publishing merger, valued at more than $2 billion, should proceed.

German media company Bertelsmann SE, which owns Penguin Random House, agreed in November 2020 to buy Simon & Schuster from ViacomCBS, now called Paramount Global.

The Justice Department sued a year later to block the deal, saying it would give Penguin Random House—itself the result of a 2013 merger—too much control over the industry.

Penguin Random House is the country’s largest consumer book publisher; Simon & Schuster is the fourth largest as measured by total sales.

In a pretrial brief, the Justice Department said the combined company would have a market share of 49% of what it described as “anticipated top-selling books,” which the government defines as titles that command advances of at least $250,000.

In his closing argument, Daniel Petrocelli, a lawyer for Penguin Random House, said no one in the industry views “anticipated top-selling books” as a distinct market. The government is focusing on this narrow slice of the industry because it can’t show the acquisition would harm consumers, Mr. Petrocelli said.

The defendants, in their pretrial brief, estimated that only 1,200 books a year, or 2% of the books published by commercial publishers, sell for advances of $250,000 or more.

Famed horror writer Stephen King testified during the first week of the trial, saying he opposed the sale of his publisher, Simon & Schuster, to Penguin Random House.

“Consolidation is bad for competition,” Mr. King said. “That’s my understanding of the book business. And I have been around it for 50 years.”

Mr. King testified that years of consolidation in the publishing industry and the failures of other independent publishers had combined to make it “tougher and tougher for writers to find enough money to live on.” He cited a 2018 survey that found full-time writers were earning an average of slightly more than $20,000 annually, which he described as “below the poverty line.” Mr. King has had a highly successful publishing career, having testified that he has written between 60 and 65 bestsellers.

Mr. King also said writers enjoyed specific benefits by signing with one of the country’s five largest publishers, a group that includes Penguin Random House and Simon & Schuster. Mr. King noted that the largest publishers can pay huge advances, raise awareness of new titles by sending out advanced copies to reviewers and orchestrate sophisticated media campaigns.

“Not every book is successful because of that, but when a publisher really gets behind a book, particularly a big publisher, the chances are that that book is going to probably succeed on some level,” he said.

Mr. King wasn’t cross-examined by an attorney for Penguin Random House.

Link to the rest at The Wall Street Journal

How an Antitrust Trial Could Reshape the Books We Read — and Who Writes Them

From The Authors Guild:

The outcome of an antitrust trial currently underway in Washington could reshape the kind of books Americans read — and who writes them.

Last November, the Department of Justice sued to stop the proposed merger of two of the country’s largest publishers, Penguin Random House and Simon & Schuster. At the time, U.S. Atty. Gen. Merrick Garland said: “If the world’s largest book publisher is permitted to acquire one of its biggest rivals, it will have unprecedented control over this important industry.” The consolidated company, according to Garland, would control half the market for top-selling books.

The Authors Guild, America’s oldest and largest association of published writers, opposes this merger. As we argued to the Justice Department in January 2021 — a position it adopted in its complaint — less competition in the industry, particularly allowing one publishing house to dominate all others, will be bad for authors and readers in general, and it could harm the free flow of ideas in our democracy.

Agents seeking a publisher for a book by one of their authors, especially those with commercial or other potential, often offer the manuscript up for auction to publishing houses, which bid against each other to acquire the right to publish it. When I first entered the publishing world 30 years ago, an auction might attract bidding from eight or nine major publishers.

Over the years, consolidation and mergers have reduced the pool of dominant bidders to five — known to insiders as “the Big Five.” The merger of Penguin Random House and Simon & Schuster would not only reduce that to four, it would create a company larger than the other three publishers in the Big Five combined. This could lead to further mergers, as publishing houses consolidate in reaction to their growing competitors in a kind of self-reinforcing cycle.

Fewer bidders for books, and fewer books that attract more than one bid, will likely drive down advances for authors. As Macmillan Chief Executive Don Weisberg testified: “Less competition is going to change the dynamic. Two of the major players becoming one — the prices, the advances, the type of competition at the auctions — I think it’ll have impact across the board.”

As an example, an author advance of $250,000 or more — which is higher than the majority of advances offered — often represents the total compensation for a book that took several years to write and usually has to cover the writer’s research, travel costs and other expenses. The Justice Department’s attorney asserted in his opening statement that testimony would show the average advance for top-selling authors would go down $40,000 to $100,000 should the merger go through. As bestselling writer Stephen King pointed out in his testimony, book authors have already experienced severe declines in writing income, partly due to fewer publishers bidding for books.

But what should concern all Americans — not just authors — is the potential harm the merger might do to diversity in the marketplace of ideas. Fewer publishers would mean fewer voices — including marginalized voices — being published. It means a reduction in political and cultural viewpoints, which especially can have an impact on authors with unusual, unpopular or controversial ideas, whose books tend to be more of a financial risk for publishers.

Link to the rest at The Authors Guild

Is Publishing About Art or Commerce?

From The New Yorker:

On the afternoon of August 10th, in the E. Barrett Prettyman federal courthouse, the Department of Justice trial to block Penguin Random House from acquiring Simon & Schuster had hit a midweek lull. The courtroom itself—as well as the overflow room, where journalists were permitted Internet access—was a few booksellers shy of crowded. But the first witness for the defense, the mega-agent Jennifer Rudolph Walsh, was intensely present, and seemed thrilled to be testifying. (Penguin Random House was paying her a quarter of a million dollars.) In a rippling cream-colored blouse and gold jewelry, her hair loose around her shoulders, Walsh painted a picture of publishing as a labor of love. Agents, she said, are in the business of fairy-tale matches between author and editor—mind meldings that span decades, shape careers, and win prizes. Walsh even had a magic wand, she added, that was given to her by the novelist Sue Monk Kidd. When the judge Florence Y. Pan asked if agents had a fiduciary duty to secure their writers the highest possible advances, Walsh responded in the negative. “More isn’t always more,” she said. “We’re not always looking to take every single dollar out of an editor’s pocket.”

The exchange exposed the core question of the day, and of every day in a trial that has riveted the publishing industry since proceedings began on August 1st: Is publishing about art or commerce? The answer, of course, is “Both”—as with any creative business—but watching each side wrestle with that ambiguity has been instructive. Penguin Random House, itself the product of a merger between Penguin and Random House in 2013, is the biggest of publishing’s so-called Big Five. (The others are HarperCollins, Macmillan, Simon & Schuster, and Hachette.) If the acquisition goes through, the new company will dwarf its nearest rivals. This is one of the first high-profile antitrust suits to be brought by President Biden’s Department of Justice. It may, along with the recent appointment of Lina Khan as chair of the Federal Trade Commission, indicate a new direction for the country’s regulatory climate. But, to people who care about books, what’s gone most conspicuously on trial is publishing itself. In the course of two weeks, an image of publishers as savvy and data-driven has vied with a tenderly drawn (auto-)portrait of gamblers, guessers, and dreamers. At times it has felt reasonable to wonder whether the industry should be characterized as an industry at all.

The spectacle has been curiously entertaining. Publishing executives have had to initiate federal employees into a dialect of “backlists,” “advance copies,” and “BookTok influencers.” Onlookers have been treated to piquant performances, from the cheeky verve of Simon & Schuster’s Jonathan Karp to the C-suite solidity of Brian Murray, of HarperCollins, who seemed to quietly deflate under a round of pointed questioning. On Tuesday, the horror maestro Stephen King popped up to testify that “consolidation is bad for competition” and that the disappearance of “idiosyncratic” imprints from the publishing landscape has made it “tougher and tougher for writers to find enough money to live on.” King, who wore sneakers and introduced himself as a “freelance writer,” wanted to advocate for younger and less established peers—those for whom a book deal might mean the difference between creating art and waiting tables.

And yet King’s championing of struggling artists felt tangential to the specifics of the trial.

Government lawyers have built the heart of their case around a relatively narrow category—“anticipated top sellers”—where the threat of monopsony is greatest. The plaintiff defines these as the small fraction of books for which authors receive advances of two hundred and fifty thousand dollars or higher. They are also the books that tend to fly off shelves and the books with which publishing houses pay their bills. The Justice Department is claiming that a Penguin Random House–Simon & Schuster merger would suppress competition for top sellers, driving down advances and ultimately lessening both the number and the diversity of the titles. The defense has countered that “anticipated top seller” does not designate a real market—merely a “price segment.” One cannot “anticipate” a blockbuster, lawyers have implied; the publishing gods are fickle, and whether a book will sell at all—much less go supernova—is anyone’s guess. Moreover, Simon & Schuster’s authors would benefit from access to Penguin Random House’s superior distribution and sales teams. Other houses would need to compete even harder to lure them away.

One by one, soberly dressed executives mounted the dais to frame publishing as a game of chance—a “business of passion,” in the words of the departing Macmillan C.E.O., Don Weisberg. “Everything is random in publishing,” Markus Dohle, the C.E.O. of Penguin Random House, testified on August 4th. “Success is random. Best-sellers are random. That is why we are the Random House!” Acquiring books, Brian Tart, the president of Viking, testified on August 3rd, “is as much an art as a science.” To illustrate his point, he described passing on Marie Kondo’s “The Life-Changing Magic of Tidying Up” and the current No. 1 New York Times best-seller, “Where the Crawdads Sing,” by Delia Owens. Judge Pan observed that profit-and-loss statements “are really fake.” Tart enthusiastically agreed. On August 2nd, Karp, the C.E.O. of Simon & Schuster, testified that gloating over a best-seller is like “taking credit for the weather,” and wryly recalled the eagerness with which he’d promoted a manuscript by a prominent spiritual guru. “Unfortunately,” he said, “his followers didn’t follow him to the bookstore.”

The rogue’s gallery of industry figures presented a stark contrast to the government’s expert witness, the economist Nicholas Hill. Soft-voiced and physically imposing, with broad shoulders, thick silver hair, and a square chin, he was there to reinforce the idea of an “anticipated top seller” market. Writers behave differently around the two-hundred-and-fifty-thousand-dollar threshold, Hill alleged. They’re “making different choices.” His most memorable contribution, though, was a series of Gross Upward Pricing Pressure Index (guppi) models, which he’d crafted to theorize about the market share that a joint Penguin Random House–Simon & Schuster might capture.

The guppis proved a matter of tense dispute. If Hill embodied the Justice Department’s academic approach, Mark Oppenheimer, an attorney in the defense, appeared intent on casting him as the Casaubon of economic consultants. A meandering cross-examination summoned impressions of mystifying esoterica, as Oppenheimer’s attempt to refute Hill’s methodology morphed into a ritual hypnosis, a ceremony to stupefy the courtroom. The lawyer, gentle and avuncular, dramatized his own inability to keep “monopoly” and “monopsony” straight; he paused to rifle through his notes, asked repetitive questions, and referred Hill to such destinations as a table’s “last column, fifth line”—or was it the “sixth line”? Several times, Judge Pan challenged Oppenheimer’s path of inquiry, and at one point pleaded with him to move on. When the court recessed, a clutch of ashen reporters staggered out of the overflow room. “Guppies,” Publishers Weekly’s news editor John Maher, who’d been valiantly live-tweeting the trial, whispered. “All I see are guppies.”

The entertainment value of Hill’s models aside, his larger case was persuasive. Big Five publishers possess advantages that render them uniquely attractive to literary stars: reputation, breadth of distribution, breadth of marketing, and—perhaps most important–extensive backlists that generate enough revenue to offset potential losses. New companies, such as the bantling publisher Zando, “can’t expand to mitigate the anticompetitive effects of the merger,” Hill said, because they lack such backlists, which grow over decades, like oaks. Yes, publishing is a risky endeavor; yes, the elusiveness of a good formula for success means that small presses and self-published authors all have a shot at producing a best-seller. But, year after year, the Big Five churn out the vast majority of profitable books—and this is precisely due to their ability to manage risk. Success in the publishing industry is not being able to publish a single hit; it’s being able to publish many hits over a long period of time. Here, the larger publishers eat their competitors’ lunch.

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

That Was My Idea! How Hollywood Is Avoiding Story Theft Claims

From The Hollywood Reporter:

A ragtag group of misfits, each with their own unique skill, bands together to pull off a high-stakes con. Depending on your preferences and streaming subscriptions, the film that comes to mind could be the 1955 classic Rififi, this year’s DreamWorks animated comedy The Bad Guys or any of the dozens of other heist movies like The StingReservoir DogsOcean’s ElevenNow You See Me and Baby Driver that were released in between.

Tropes aren’t specific to the heist genre, and by definition they’re not uncommon. Yet, that kind of similarity is often enough to spark an idea theft claim — and in the peak content era, there’s more opportunity than ever to file such suits. Ideas are generally not protectable absent an agreement, so the cases usually manifest as claims for copyright infringement (“I sent an agent my script and another writer copied my particular expression of the idea”) or breach of contract (“I had a pitch meeting and a producer used my idea but didn’t pay me”).

“From a contract perspective, the question is whether or not an agreement is reached,” says Stephen Doniger of Doniger Burroughs, a litigator who often represents plaintiffs in intellectual property cases. “People pitch things all the time in hopes someone thinks they’re brilliant and wants to work with them. That doesn’t create an automatic agreement for payment if they use that idea.”

Entertainment litigator Bryan Sullivan of Early Sullivan reiterates that the idea has to be pitched to someone with the intention of them buying it. “I think that’s the number one misunderstood aspect of this claim,” he says. “If you pitched it to them looking for feedback, like ‘Hey, what do you think of this idea,’ you don’t have any right to sue them if they go off and are hugely successful with the expression of the idea.”

Copyright claims aren’t any easier, as plaintiffs must prove the projects are substantially similar and that the defendant had access to their work. With the ubiquity of social media, access looks different than it did a decade ago. Instead of mailing a treatment to an agency or production company, an aspiring writer can send an idea through a direct message or via email.

TV writer-producer (and former THR editor) Marc Bernardin (Star Trek: PicardCastle Rock) says he politely shuts down any followers who ask him to hear a pitch. “Nobody is trying to be a dick,” he says. “Everybody is trying to protect themselves from litigation and protect aspirants from disappointment. Blowing up somebody’s DMs with PDFs of scripts is not going to do anybody any favors.”

Doing people favors is actually what sparks many idea theft disputes, according to litigator Greg Korn of Kinsella Weitzman, who regularly represents clients defending against these claims. “Someone knows an agent and asks, ‘Can you look at this screenplay by a friend of mine?’ Then later that person sees something that has come out with vague similarities and they fantasize that there must have been some Machiavellian scheme to exploit their idea without them,” says Korn. “It feels like the ultimate injustice. It becomes a matter of principle and pride even when it looks like [a lawsuit] will go badly, and frequently it does.”

Talent lawyer Matt Johnson of JSSK, who works with some of the industry’s most prolific creators, is dealing with two active claims. “One was a blind submission to the friend of my client, and the other sent it to the agency that the person is represented by,” he says. “A good half the time these claims come from someone who’s not connected who’s trying to create a nexus. If it’s not from a trusted source, the number one piece of advice is not to open it. You can prove something wasn’t opened digitally. If something is received in the mail, the same philosophy applies. Return it, unopened, and document it.”

The attorneys consulted by THR suggest that industry reps should follow similar protocol. “I get five to ten submissions a day,” notes talent lawyer Linda Lichter of Lichter Grossman. “They don’t send me the script. They say, ‘I have a great story for client so-and-so,’ and they describe it and ask me to pass it along. I used to reply to every one and say, ‘We don’t accept submissions,’ but now they get sent to spam. It’s too much. Of course, I worry that if they’ve sent it to me and my client happens to do something similar, they’ll say, ‘I gave it to the lawyer, so the client had access.’”

The most recent idea theft case to make headlines came from a self-described aspiring writer and performer who claims ABC’s Emmy-nominated Abbott Elementary is a rip-off of This School Year, her mockumentary-style comedy set in an inner-city school. In a July 12 lawsuit, Christine Davis says she pitched the show to two execs at Blue Park Productions, an incubator for Black female creators, who she believes then took her idea to Hulu. There’s no further detail in the complaint, other than an allusion to connections at the streamer, but Blue Park has no ties to Abbott Elementary.

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

Before he was a lawyer and when he started working for a large advertising agency, PG recalls being briefed by an agency lawyer with a couple of other new hires about how to handle unsolicited ideas.

As PG remembers it, the drill if an employee of the agency received an unsolicited idea for a commercial or advertisement, she/he was instructed to stop reading it as soon as they discovered what it was, draw a line where they stopped reading, labeling the line with something like, “I stopped reading here,” put it into an envelope and send it to the agency’s attorney.

For the record, PG has never received such a letter, email, etc., and doubts he qualifies as a juicy target for anyone to sue these days.

If Mrs. PG or a friend of PG’s received such a letter, PG would be inclined to follow the general pattern described in the OP, send it back with a letter or email saying you don’t accept ideas from anyone, send the original back and keep a copy of your letter or email somewhere (but this is not legal advice).

The Weirdest Quotes From the Penguin Random House Trial

From Book Riot:

As you may or may not know, the United States Department of Justice (DOJ) is suing to prevent Penguin Random House (PRH) from acquiring/merging with Simon & Schuster, on the grounds that it will lose authors money. Unlike many antitrust suits, it is not concerned with monopoly (not enough sellers) but monospony (not enough buyers). I explained in more detail when the trial was first announced.

. . . .

Right out the gate, while defining terms, PRH’s lawyer described “backlist” as meaning “Books that were published a very long time ago.” (Backlist is anything more than a year old by most definitions, but it can mean anything that isn’t brand new.)

. . . .

“My name is Stephen King. I’m a freelance writer.”

This is the tweet heard round the world, isn’t it? First a brief explanation: all witnesses are asked to identify themselves this way, by name and (relevant) occupation. So he didn’t do anything wrong here.

Now back to snark. Imagine being Stephen King and introducing yourself this way. Actually, imagine being Stephen King and introducing yourself the way “freelance writer” suggests. “My name is Stephen King. I can’t afford health insurance.” “My name is Stephen King and I work in coffee shops.” “My name is Stephen King. Will do novels for food.” “My name is Stephen King and last month I made negative 73 dollars.”

. . . .

Simon & Schuster CEO Jon Karp said quite a few outrageous things, most of which involve his testimony contradicting his earlier deposition. None of them are particularly quote-worthy without context (read the thread!) but I was delighted that the DOJ lawyer apparently hurt his feelings by saying, “I should have guessed you’d have a big vocabulary, as head of a publishing house.”

Karp also called self-publishing “more of a threat than I thought” in reference to Brandon Sanderson’s $50 million Kickstarter — something that literally no other self-published author is capable of achieving, yay — and, in defending the idea that publishers don’t guarantee a marketing budget, said, “It’s like taking credit for the weather. You can’t promise success to the author.”

. . . .

The quote heard round the world, part two: $100,000 is, according to Karp, a “fairly small advance.” Lilith Saintcrow breaks down why that is a lie — and the implications.

. . . .

Actual Jon Karp quote: “I’m not a game theorist, but….” Honestly, the man is hilarious. Asked if he has calculated Amazon’s market share: “I haven’t. I wish somebody would!” Govt isn’t taking the bait, but Karp is definitely pushing buttons.

. . . .

From PRH CEO Markus Dohle: “Everything is random in publishing. Success is random. Bestsellers are random. So that is why we are the Random House!”

Link to the rest at Book Riot

PG thinks the CEO’s didn’t listen to what their lawyers told them about their demeanor on the stand and how to answer a question. Judges tend to become upset at witnesses that can’t restrain themselves from being flippant in court. Among other things, the judge is constantly assessing whether these guys are telling the truth or not and whether their opinions are reliable.

PG reminds one and all that, although Karp and Dohle carry CEO titles, their companies are owned by very large business interests which strongly desire for this merger to be approved. If the big bosses decide their hired hands contributed to losing this antitrust case, Karp and Dohle will be out on the street tout de suite.

DOJ v PRH: Agents Have Their Say

From Publishers Weekly:

Thursday’s proceedings in the Department of Justice’s efforts to block Penguin Random House’s acquisition of Simon & Schuster started with the remainder of testimony from Norton’s John Glusman and ended with the testimony of literary agent Gail Ross of Ross/Yoon. In this first full day for the defense, a great deal of time was spent on the submission and acquisition processes in publishing and how these affect book advances, from the perspectives of publishers (Glusman, and later Putnam’s Sally Kim), authors (Charles Duhigg), and agents (Elyse Cheney, Ross, and Andrew Wylie).

Glusman, who in Wednesday’s testimony said he didn’t believe the merger would hurt advances, quipped that the Big Five “regularly overpay for books” and that Norton is impacted directly “because we end up losing authors. We don’t overpay for books. We pay on the basis of what we project for sales.” In his opinion, midlist authors will be harmed by the proposed merger.

Next, The Power of Habit author Charles Duhigg took the stand, testifying that he did not start writing books for advances, but instead “to sell millions of copies… because that’s what allows you to make money,” adding: “You make so much money from things beyond the advance.” While Duhigg acknowledged the importance of money to a writer’s career, he also spoke at length about the power of “the right editor.”

In his case, the editor is PRH’s Andy Ward, and Duhigg also talked about the importance of author support from all members of an imprint and publishing house. “These people worked tirelessly [for my book],” said Duhigg in reference to everyone from PR teams to sales staff. “If this merger goes through,” he said, “I believe PRH wants to make the world a better place for writers. The thing I know about Andy Ward and PRH is that they love authors and want to give us the freedom to write what we want to write.”

Next on the stand was Sally Kim, senior v-p and publisher of Putnam, who has been in acquiring roles for 25 years. The defense took Kim through a long back-and-forth about the acquisition process, but Kim—like others in this trial—said that when it comes to predicting sales, “things can’t be calculated exactly.” “How common is it for different imprints to value the same book differently?” the defense asked; Kim replied, “Very different.” And, again like other who appeared before her at the trial, Kim spoke of publishing as “a relationship business,” between publishers, editors, and agents.

During its cross, the government asked Kim why she is always thinking about Putnam’s reputation, and she answered: “Because we want to be known for publishing… books of prestige and of quality, books that people are still going to be reading 10, 20 years from now.”

Despite more questions about the acquisition process that involved advance payments and proportion of books won by and lost to PRH and S&S, all witnesses for the defense, including the three literary agents who testified Thursday afternoon, emphasized matters of literary prestige, taste, experience, and “nuance.” Elyse Cheney said, “I want to go to an editor who’s going to get the best book out of my client.” She also told the government, when asked about pricing a deal, that she cares less about advances and marketing spending than about reputation overall: “In general, PRH has made a real commitment to books over a long period of time,” said Cheney. “Whereas a company like S&S that is a shareholder driven cannot develop the same tools as a company like PRH, and could post-merger.”

The judge asked if Cheney was saying “competition doesn’t matter in book publishing because you are hand-selecting these editors?” and Cheney replied that competition is not the primary thing.” Her authors, she told the defense, are “very sophisticated clients, and the editor who can help them make the richest, most robust project? It’s huge. How that editor communicates what that book is about, is essential to success of a book.” She wants “ very particular people” when she’s submitting a manuscript. “Of course, everybody wants to make a lot of money, I do as well, but that doesn’t mean I suggest everyone take the largest advance.”

Next, Andrew Wylie of the Wylie Agency told the defense that his agency “doesn’t conduct auctions” and he is satisfied that he’s getting the best deal for his clients because “I’ve been doing it 42 years and I can predict with a high degree of accuracy whether it might be best to do a multiple submission or a single submission.” He believes a merger would have “a positive result” for his clients and that the highest advances he’s negotiated have been with Big Five publishers “because I think they have the broadest talent editorially, they are generally well financed, and their production and distribution is expert.”

Link to the rest at Publishers Weekly

PG notes that any agent who didn’t toe the Big Publishing line would be out of business well before the inevitable appeals of the trial court’s decision in this case are over.

He also wonders how Judge Florence Pan, who is hearing the case without a jury, feels about “competition is not the primary thing” and “literary prestige, taste, experience, and ‘nuance'” being at the heart of an agent’s daily concerns when dealing with publishers.

AI-Assisted Inventions Could Spur New Patent Litigation Wave

From Bloomberg Law:

The amount of human involvement needed to secure a patent when artificial intelligence is used to create an invention remains up in the air after a Federal Circuit decision shutting down the possibility of solo AI inventorship.

Patent attorneys expect more litigation on the use of AI in inventions to follow the US Court of Appeals for the Federal Circuit’s ruling last week that artificial intelligence systems can’t be the sole inventors on patents. The three-judge panel noted that the decision was confined to the question of whether computer scientist Stephen Thaler’s creativity machine could be the only inventor listed on a patent application, not whether inventions “made with the assistance of AI” are eligible for patent protection, according to the precedential opinion.

The opinion left unresolved how some provisions of the Patent Act should be interpreted when AI is involved and what constitutes sufficient human contribution for the person to qualify as an inventor, attorneys said. As the US Patent and Trademark Office grants such patents, courts will start having to grapple with new legal challenges surrounding AI inventions across industries.

. . . .

Thaler’s loss last week marked his latest setback in his quest to convince jurisdictions around the world that his creativity machine called DABUS is the rightful inventor on two patent applications. The Federal Circuit sided with courts in Australia and Europe that found only humans can be inventors under existing statutes. Thaler said he plans to appeal the Federal Circuit’s decision to the US Supreme Court.

It would be up to Congress to change the Patent Act to allow for non-human inventors, but until then, there’s “no ambiguity,” Judge Leonard P. Stark wrote in the opinion.

More challenges to patents created with the help of AI will follow, said Susan Krumplitsch, a partner at DLA Piper, though they likely won’t center on whether the AI should be allowed to be the inventor, as Thaler argued. When inventions rely on machine learning and neural networks, it’s not clear how important the person was in the creation of the invention, she said.

“These issues haven’t been explored,” Krumplitsch said. “I would expect in the coming years, as these patents come up, and we see them in court, and they’re pulled apart, we’ll see more of a focus on who was doing what, and was the human contribution enough to be an inventor contribution.”

If the artificial intelligence system did all or most of the work, the humans involved in the inventions may not be able to take the oath required by the patent office that they are the rightful inventors, said Christopher S. Schultz, a partner at Burns & Levinson LLP in Boston.

Link to the rest at Bloomberg Law

As PG mentioned in earlier posts, it’s only a matter of time until the AI/author copyright question arises as well.

What we gain from independent publishers and bookstores

From Nathan Bransford:

The antitrust trial over Penguin Random House’s proposed acquisition of Simon & Schuster is now in its third week. There’s a whole lot of coverage and smaller bits to chew on, and if you want a deep dive, Publishers Weekly and Publishers Lunch ($ link) have comprehensive coverage.

Just two of the eyebrow-raisers yesterday came when agent Andrew Wylie testified that he doesn’t do auctions, and when author Charles Duhigg asserted that authors don’t want advances higher than they can possibly earn out. (Um, yes they very much do).

But I also wanted to touch on two articles that discuss the impact on authors and the independent publishing ecosystem. Bookseller Richard Howorth argues in the NY Times that industry consolidation threatens the number of quality midlist books that get published, and Nicole Chung writes about the need for independent publishers to survive so they can nurture authors.

. . . .

It’s not personal, but it can really feel like that sometimes. Jillian Medoff talks about breaking up with her agent.

Link to the rest at Nathan Bransford

Lots of links in the OP.

Writers’ Arbitration Ruling Yields $42 Million From Netflix

From Publishing Perspectives:

On Thursday (August 4), it was announced to members of the Writers Guild of America that a case of arbitration with Netflix has resulted in a huge win for screenwriters, coming to some US$42 million in residuals.

As the pace of development of books to film picks up—and as many international book publishers and literary agencies work to develop stronger channels into screen development deals for their properties and authors—the case highlights an interesting inflection point in the relationship of filmmakers’ writers and the streamers. And as EJ Panaligan at Variety reports, the arbitration was based in the case of the Netflix Original Bird Box, a film based on the 2014 novel of the same name by author Josh Malerman from HarperCollins’ Ecco. (Our interview with Malerman and background from literary agent Kristen Nelson is here.)

As reported by Wendy Lee at the Los Angeles Times, the Writers Guild of America West has reported that 216 writers who worked on Netflix’s theatrical films are being paid a total US$42 million in unpaid residual fees, thanks to the arbitrator’s ruling.

Eric Heisserer (Bird Box, Arrival, Hours) is the most visible screenwriter, thanks to his work on Bird Box. The arbitration has resulted in Netflix being required to pay him US$850,000 in residuals as well as $350,000 in interest.

The point on which the arbitration turned was Netflix’s own move into self-production, the Netflix Originals work—some of it written by guild members—which has become a major element of the company’s film library.

David Robb, writing for Deadline, carries part of an explanation provided by the union to its members on Thursday, and it’s a good summation of how the self-production vs. third-party production aspect of this was at the heart of the decision.

For our international readership: there are several industry acronyms here, all of which may not be familiar. Rather than spell each out on first reference–which complicates the text–we’ll list them here in the order you’ll encounter them before quoting the guild.

MBA: minimum basic agreement
DGA: Directors Guild of America
SAG-AFTRA: Screen Actors Guild-American Federation of Television and Radio Artists
AMPTA: Alliance of Motion Pictures and Television Producers

The Writers Guild of America West leadership writes to members:

“When a theatrical [film] is licensed or released in any other market—like streaming or television or home video—residuals must be paid on revenues earned in those markets. The typical residual for the credited writer is 1.2 percent of the license fee paid to the producer for the right to exhibit that film.

“If the license is between related parties—for example, when Netflix is both the producer and the distributor of the film—the MBA [minimum basic agreement] requires that the company impute a license fee based on arm’s-length transactions between unrelated parties of comparable pictures—for example, a Sony film licensed to Netflix. This critical definition, negotiated as part of the resolution of our strike in 2008, protects against the undervaluation of license fees through self-dealing.

“Rather than follow the established MBA definition for related-party transactions (which exists in the DGA and SAG-AFTRA agreements with the AMPTA as well), Netflix negotiated new deals with the DGA and SAG-AFTRA that allow Netflix to pay residuals on significantly less than the cost of the film. Netflix then tried to force the Writers Guild of America to take this ‘pattern’ deal. Since it was clear the new formula negotiated by the other guilds undervalued these ‘imputed’ license fees, the guild instead took the dispute to arbitration.

“During the arbitration, the guild showed that when Netflix licensed comparable theatrical films from third party producers it almost always paid a license fee that exceeded the budget. The industry refers to this model as ‘cost-plus.’ The guild argued that Netflix must apply this cost-plus model to its own films and impute license fees in excess of the budget for the purpose of paying residuals. The arbitrator agreed and ruled that the license fee should be 111 percent of the gross budget of the film.”

Link to the rest at Publishing Perspectives

A weird state law lets Virginians sue books. Politicians are using it to dictate what we can read.

From FIRE:

Book bans seek to enlist the power of the state to dictate what each of us and our families may or may not read — and thus are sharply at odds with the First Amendment and our pluralist democracy.

That’s the message delivered by FIRE and the Woodhull Freedom Foundation in an amici curiae brief filed today with a Virginia state court tasked with determining whether two award-winning books, Maia Kobabe’s “Gender Queer” and Sarah J. Maas’ “A Court of Mist and Fury,” are legally obscene.

In May, two Virginia politicians filed a petition against the books in Virginia Beach Circuit Court, seeking declarations of obscenity that, pursuant to state law, would prohibit bookstores from selling either work. Their request invoked a rarely-used state law that allows Virginians to sue books and to compel their publishers and authors to defend them in court. After a retired state judge found “probable cause” that the works are “obscene for unrestricted viewing by minors,” the petitioners sought temporary restraining orders to bar commercial distribution of the book.

In today’s brief, FIRE and the Woodhull Freedom Foundation argue that neither book comes close to constituting obscenity as defined for minors under longstanding state and federal precedent. The books “will not appeal to or have value to every audience,” we recognize, but the First Amendment only requires that the books have “value to an audience” — and both plainly do.

Moreover, FIRE and Woodhull argue, book bans are antithetical to the First Amendment and the pluralist values it protects:

Some readers will choose not to purchase or read the books at issue in this case. Some retailers and some librarians will decline to place them on the shelves. Our Constitution reserves these choices for individuals and forbids them from the state. In our pluralist democracy, the First Amendment prescribes a remedy for audiences offended by protected speech: those who seek to avoid “bombardment of their sensibilities” may do so “simply by averting their eyes.” Cohen v. California, 403 U.S. 15, 21 (1971). Declaring books obscene because they include discussions or depictions of sex would reprise a discredited era of censorship repudiated by decades of Supreme Court precedent.

Drawing a link between the “current national push to ban books discussing sexuality, identity, and other controversial topics” and the “increasing comfort with censorship that amicus FIRE has fought against for over twenty years on campuses nationwide,” our brief makes the case for freedom of thought.

Link to the rest at FIRE and here’s a link to a page where you can read the FIRE Brief.

FIRE stands for the Foundation for Individual Rights in Education. FIRE summarizes its mission as follows:

FIRE’s mission is to defend and sustain the individual rights of all Americans to free speech and free thought—the most essential qualities of liberty. FIRE educates Americans about the importance of these inalienable rights, promotes a culture of respect for these rights, and provides the means to preserve them.

PG hasn’t agreed with 100% of FIRE’s positions, but he does agree with a great deal of what FIRE advocates and the causes it takes to court.

Prolific romantic fiction writer exposed as a plagiarist

From The Guardian:

A prolific, self-published romantic fiction novelist has been exposed as a plagiarist after a reader spotted that she had switched the gender in a tale of romantic suspense to turn it into a gay love story.

Becky McGraw, a New York Times bestselling writer, was alerted by one of her readers about the similarities between her own novel My Kind of Trouble, in which Cassie Bellamy falls for bad boy Luke Matthews when she returns to her hometown of Bowie, Texas, and Laura Harner’s Coming Home Texas, in which Brandon Masters falls for bad boy Joe Martinez when he returns to his hometown of Goldview, Texas.

“She emailed to ask if I’d started writing gay romance under a pen name,” said McGraw, whose editor subsequently reviewed both books, and highlighted the similarities. These have also been extensively detailed online by novelist Jenny Trout; Trout has provided screenshots and extracts from both books, and writes that “Harner’s clever trick here was to pick a book that was not M/M [male/male], but M/F contemporary romance. As far as readers go, there isn’t a lot of overlap between the two genres.”

McGraw writes: “Since she’d gotten the call from Imelda, the closest thing to a mother that Cassie had known since her own mother died when she was ten, Cassie had been in that mode. Once she decided she needed to come back, the memories she thought she buried ten years ago would not leave her alone. Thoughts of Luke Matthews would not leave her alone.”

Harner, whose Amazon profile says she has written more than 50 novels and sold almost half a million books, writes: “Since he’d gotten the call from Isabella – the closest thing to a mother that he’d known since his own mom died when he was nine – Brandon seemed to be stuck on a never ending sentimental highway. Once he decided he needed to come back, the memories he thought he buried long ago wouldn’t leave him alone. Thoughts of Joe Martinez won’t leave me alone.”

“Her book was almost a word-for-word, scene-for-scene duplication of my book, except the characters’ names had been changed, and short M/M love scenes had been inserted,” said McGraw. “The only scene she didn’t include was the epilogue, which couldn’t be altered to an M/M scene. It involved the heroine in labour and the hero having sympathetic labour pains.”

McGraw is intending to take legal action against Harner, who has pulled the book from retailers since McGraw first posted about the situation on Facebook, along with her Deuce Coop series, which was revealed to be similar to Opal Carew’s Riding Steele novel, again a straight romance turned into a gay one. The similarities were laid out in a second blog post by Trout, who wrote that “it’s almost impressive how much Harner was still able to plagiarise from Carew here, given the fact that the characters are of mostly different physical and clothing descriptions”.

Responding to the Guardian in a statement, Harner said she realised she had “made mistakes”. “I own them, and I will deal with the consequences. In transforming two M/F romance stories into an M/M genre, it appears that I may have crossed the line and violated my own code of ethics,” she wrote.

“For those who know me best, you know that responsibility for my actions begins and ends with me. I will also add there are some personal and professional issues I’ve had to deal with in the last year that have stretched me in ways that haven’t always been good for me. I write about certain concerns related to military service for a reason; however, I am not offering that as an excuse. I just think whenever someone acts so out of character, it’s helpful to ask why.”

Harner added that she was “working to address concerns raised by two authors who have accused me of plagiarism”, saying that she would provide a more complete statement later this week. “Until then, please do not judge me too harshly.”

McGraw, however, urged other romantic fiction novelists to check Harner’s backlist to see if they recognise their work. “Considering that Laura Harner, AKA LE Harner, has ‘written’ in seven or eight genres in five years, started series in those genres, and published 75 books so far in that span of time, I’d say everyone in every genre needs to be concerned, both indie and traditionally published authors,” she said.

Link to the rest at The Guardian

Don’t count on agents and publishers to polish your diamond in the rough

From Nathan Bransford:

Some authors have heard that agents engage in pre-submission editing prior to submitting to publishers. Failing that, they know that editing is literally in an editor’s job title.

So if you just have a great idea for a book, an agent and editor will help you polish it up into something publishable, right?

Don’t count on it.

Yes, sure. Some agents really do offer pre-submission editing. But typically these are situations where agents are taking a book project that’s nearly there and helping it that last extra mile across the finish line. They’re taking books that are already in the 99.5th percentile and getting them to the 99.9th. They’re not taking a hot mess and turning it into gold.

Ideas are highly, highly overrated. Execution is what matters. Your writing needs to be competent at worst, ideally much more than that. However you feel about [insert traditionally published bestseller with a reputation for being poorly written], it is way better than the vast majority of what goes unpublished.

. . . .

Unless you are writing on a highly topical nonfiction project with a very specific bombshell, current events don’t tend to matter much in the book world, particularly for fiction. It doesn’t pay to rush.

Link to the rest at Nathan Bransford

PG worked for a large advertising agency a long time ago. Shortly after he started work, he had a visit from one of the agency’s attorneys to discuss what to do if he received a letter with an idea for a commercial or other advertisement.

Basically, when PG realized that he was receiving an unsolicited idea from outside the agency, he was to immediately stop reading the letter and mark the place where he stopped reading. He was then to walk the letter over to the legal department and hand it to someone who would draft and appropriate response to accompany the returned idea letter back to the sender.

U.S. appeals court okays Starz copyright claims against Amazon’s MGM

From Reuters:

MGM Studios’ television division on Thursday lost a bid at the 9th U.S. Circuit Court of Appeals to escape hundreds of copyright claims by Starz Entertainment LLC over a licensing agreement gone sour.

The appeals court said that TV network Starz could pursue damages for several instances of alleged infringement that occurred years before the case began.

MGM said in a statement that it was disappointed in the decision, which it said conflicts with rulings by the U.S. Supreme Court and the 2nd U.S. Circuit Court of Appeals. The company said it is considering “further appellate options” and looks forward to defending against the claims on their merits.

. . . .

Starz signed agreements with MGM in 2013 and 2015 to pay nearly $70 million for the exclusive right to show hundreds of MGM TV shows and movies, including the James Bond film series, “Mad Max” and “The Terminator.”

A Starz employee learned in 2019 that MGM’s film “Bill & Ted’s Excellent Adventure” was available to stream on Amazon’s platform during the exclusivity period. MGM later told Starz that it had also licensed many other shows and movies to other services.

Amazon bought MGM for $8.5 billion earlier this year.

Starz sued MGM in Los Angeles federal court in 2020 for violating their contracts and its copyright interests in the licensed works.

MGM asked the court to dismiss 381 of Starz’s 1,020 copyright claims, arguing they involved licenses that expired more than three years before Starz sued. According to MGM, the Supreme Court in a 2014 case imposed a “strict bar” to infringement damages from more than three years before a lawsuit is filed.

The 9th Circuit on Thursday agreed with the district court that the bar does not apply when a plaintiff like Starz could not have reasonably been aware of the infringement when it happened.

“Adopting a damages bar would mean that a copyright plaintiff who, through no fault of its own, discovers an act of infringement more than three years after the infringement occurred would be out of luck,” U.S. Circuit Judge Kim Wardlaw wrote for a three-judge panel. “Such a harsh rule would distort the tenor of the statute.”

Wardlaw also said the rule would “incentivize” infringement, noting that modern technology has made it “easier to commit, harder to detect, and tougher to litigate.”

Link to the rest at Reuters

PG included this as a second story about this litigation because The Authors Guild story was primarily focused on patting itself on the back because the 9th Circuit quoted parts of the Guild’s brief. Evidently the person who wrote the AG article didn’t understand that appellate courts quote from briefs filed with the court on a regular basis.

PG hasn’t dug into the trial material in the 9th Circuit case, but in prior cases, the Supremes have declined to follow the 9th Circuit’s reasoning. The 9th Circuit has been known as the most-frequently-reversed of the Circuits, but its judges continue to go off on legal frolics hither and yon on a regular basis and seems to be immune to embarrassment for its behavior.

Internet Archive Would Like To Know What The Association Of American Publishers Is Hiding

From TechDirt:

Last year when a bunch of the biggest publishing houses sued the Internet Archive, in the midst of a pandemic, over their digital library program, I was a bit surprised that the announcement about the lawsuit came not from any of the publishers themselves directly, but rather from the Association of American Publishers (AAP), which is officially not a party in the lawsuit. That alone felt a bit… sketchy.

And, now it may be an issue in the lawsuit itself. Last week, the Internet Archive asked the judge for a hearing because the AAP is attempting to withhold various responsive documents on the discovery requests that were made to the publishers themselves regarding their communications with the AAP, and a separate subpoena served on the AAP. And it appears the AAP really doesn’t want that stuff to get into the hands of the Internet Archive’s legal team.

This dispute concerns documents (i) responsive to the Internet Archive’s requests for production served on Plaintiffs and (ii) responsive to the Internet Archive’s subpoena served on the AAP. These withheld documents are critical to the Internet Archive’s fair use defense, specifically the fourth factor, market harm. The varying views of publishers regarding whether they objected to the Internet Archive’s activities, whether they regarded themselves as having been harmed by those activities, and whether that harm was of a large or of a small magnitude are key pieces of evidence as to whether Internet Archive?s nonprofit library lending causes any substantial market harm.

There’s also a hint in the letter suggesting that the Internet Archive is suggesting that the only real “harm” caused by its Open Library was that it made it more difficult for the big publishers to collude (as they did with Apple regarding ebook prices) to jack up the prices on ebooks sold (but not really sold) to libraries.

And publishers’ communications regarding the source of that harm, for example, if the Internet Archive’s activities simply make it more difficult for publishers to agree among themselves on ebook prices, as they did in United States v. Apple, Inc., 791 F.3d 290 (2d Cir. 2015), will shed light on whether that harm is cognizable under the fourth factor. Further, the Internet Archive is entitled to explore whether Plaintiffs and other publishers conspired here as they did in the Apple case; if so, such anticompetitive conduct here may support an additional defense which could preclude infringement liability. See Saks Inc. v. Attachmate Corp., No. 14-civ-4902-CM, 2015 WL 1841136, at *12 (S.D.N.Y. Apr. 17, 2015) ([H]istorically, the defense of copyright misuse has been successfully asserted most often in cases where anticompetitive effects were alleged.). Finally, withheld documents are likely to be relevant to the Internet Archive’s laches defense. The requested documents will shed light onto why the AAP (and Plaintiffs), despite being aware for years of the Internet Archive’s digital lending library, waited until the summer of 2020 to sue.

The AAP is trying to argue that its communications with the publishers is protected by attorney-client privilege, which is made difficult by the fact that the AAP is not acting as the publishers’ lawyers here, but rather as lobbyists.

Plaintiffs have not demonstrated beyond conclusory statements in their privilege logs that communications with the AAP were exchanged to solicit, receive, or give legal advice rather than to discuss business concerns and interests….

…. One of Plaintiffs? justifications for withholding their communications with the AAP is that some AAP staff members are attorneys. But AAP employees who happen to be attorneys wear many hats. For example, the President and CEO of the AAP is also a lawyer, as is AAP?s Senior Vice President of Global Policy. While it is conceivable that these executives do legal work for the organization, the burden is on AAP to justify why particular documents are privileged, given these executives? predominant business roles.

Also, generally speaking, if documents are attorney-client privileged, it means you don’t share it with anyone who is not on the legal team. But, that’s not what happened here:

Plaintiffs’ privilege logs also suggest that AAP employees who were not attorneys were copied on withheld documents, including communications staff which suggests that the predominant purpose of the document may not have been to secure legal advice. United States v. IBM Corp., 66 F.R.D. 206, 213 (S.D.N.Y. 1974) (no protection attaches to a document prepared for simultaneous review by legal and nonlegal personnel.). Finally, several entries on Plaintiffs’ privilege logs reference communications either (i) solely between non-party third parties or (ii) between Plaintiffs and third parties (like authors and literary agents). Plaintiffs have not met their burden to show that privilege extends to any of these third parties.

There’s some more in the letter, but it does seem pretty clear that the AAP desperately doesn’t want the Internet Archive to know what it was talking about with the publishers regarding the plans around dealing with the Open Library.

Link to the rest at TechDirt

PG notes that the major international publishers that provide most of the funding for The Association of American Publishers, undoubtedly including the legal fees for pursuing the suit against the Internet Archive, have a history of stupid errors on the part of the entitled and arrogant lords of traditional publishing which have caused them major pain whenever they’ve become involved with the US legal system while trying to stifle ebooks and prevent anyone from discounting them.

Exhibit A is United States v. Apple, in which the same large publishers tried to strangle a much smaller Amazon in the cradle in 2012 for committing the sin of selling the ebooks of these publishers at discount from their list price.

NY Times fires back at defamation plaintiff with anti-SLAPP lawsuit

From Reuters:

The New York Times sued an anti-immigration author for the cost of defending itself against defamation in the first lawsuit of its kind under New York’s recently expanded “anti-SLAPP” law to protect critical speech.

The company is seeking unspecified fees spent fending off a 2020 lawsuit by Peter Brimelow, according to the company’s lawsuit, which was filed on Tuesday.

Brimelow had sued the company over five articles published between January 2019 and May 2020 that described him as being “white nationalist” and his VDARE.com website as being “animated by race hatred.”

Brimelow said the lawsuit does not have merit. “This lawsuit, like the five articles at issue in the original litigation, is but another effort to raise the stakes against dissident (but desperately needed) voices,” he said in an email.

The Times said in a statement it was the first anti-SLAPP case by the company which it called an important step in protecting itself from defamation claims.

One of the five articles that Brimelow alleged was defamatory was originally published by Reuters and republished by the Times. Brimelow did not name Reuters in his lawsuit.

The lawsuit by Brimelow, who has said he thinks the United States is a white nation, was dismissed in December 2020 soon after New York expanded its anti-SLAPP law, which is meant to deter lawsuits that are designed to punish defendants for speaking out on public issues.

SLAPP stands for “Strategic Lawsuit Against Public Participation” and then-Governor Andrew Cuomo said the expanded law would protect free speech by preventing wealthy interests from using the court to bully their opponents.

The Times lawsuit is the first in which a defendant in a SLAPP case turned around and sued the plaintiffs after getting the case dismissed, according to Daniel Novack, an attorney who specializes in media law.

Link to the rest at Reuters

SLAPP Suits

From The First Amendment Encyclopedia:

A SLAPP suit, or strategic lawsuit against public participation, is a civil claim filed against an individual or an organization, arising out of that party’s speech or communication to government about an issue of public concern. At the heart of the SLAPP suit is the petition clause of the First Amendment.

‘SLAPP’ was coined to recognize lawsuits filed to silence criticism

A SLAPP suit may look like a civil lawsuit for defamation, nuisance, interference with contract, interference with economic advantage, or invasion of privacy, but its purpose is different. About this purpose, Judge J. Nicholas Colabella wrote in Gordon v. Marrone (N.Y . 1992), “Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined.”

Professors George W. Pring and Penelope Canan coined the term SLAPP suit in the 1980s after noting a surge in lawsuits filed to silence public criticism by citizens.

SLAPP suits arise when citizens erect signs on their own property, speak at public meetings, report violations of environmental laws, testify before Congress or state legislatures, or protest publicly, among many other similar acts, thereby prompting a party who claims to be aggrieved by such acts — often developers, merchants, and even public officials — to file suit.

SLAPP suits can interfere with First Amendment rights

The petition clause of the First Amendment guarantees, in part, “the right of the people. . .to petition the government for a redress of grievances.” The abridgment of this right distinguishes a SLAPP suit from other cases based on similar allegations.

Defendants in SLAPP suits who plead a defense of petition clause immunity will almost always succeed in having the claims dismissed. This immunity is often known as the “Noerr-Pennington immunity” based on its role in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc. (1961) and United Mine Workers v. Pennington (1965).

. . . .

Nonlegal effects of SLAPP suits remain

However, the nonlegal effect of SLAPP suits remains. A defendant in such a suit may succeed legally but lose nevertheless, having expended large amounts of time and money in defending against the lawsuit.

More damaging is the effect that such suits can have on those who have not yet been targeted: the desire to avoid being sued translates into a reluctance to participate in public debate.

Link to the rest at The First Amendment Encyclopedia

Authors Guild Signs Open Letter Supporting Anti-SLAPP Legislation

From The Authors Guild:

On June 23, the Authors Guild signed an Open Letter in Support of the Uniform Law Commission’s Uniform Public Expression Protection Act. This Act provides a framework for states to create their own laws against baseless lawsuits intended to keep individuals from exercising their First Amendment rights.

Thirty-two states already have laws against such suits, known as Strategic Lawsuits Against Public Participation, or “SLAPP,” suits.  However, the need for anti-SLAPP legislation everywhere is greater than ever given the recent increase in lawsuits meant to intimidate writers and publishers and stop them from publishing true information or opinions.

The open letter sets out six features of an effective anti-SLAPP law:

  1. Protection of all expression on matters of public concern. This would protect all speech on matters of public concern in any forum.
  2. Minimization of litigation costs by allowing defendants to file an anti-SLAPP motion in court. This would automatically halt discovery and all other proceedings until the court rules on the anti-SLAPP motion.
  3. Requiring plaintiffs to show they have a legitimate case early in the litigation. This would limit defendants’ legal fees until the court has had the opportunity to assess the validity of the lawsuit.
  4. The right to an immediate appeal of an anti-SLAPP motion ruling. Providing a defendant with the right to immediately appeal is important because lower courts can make an error in judgment. A successful appeal of a ruling denying an anti-SLAPP motion can avoid an expensive and stressful trial that would unduly burden a speaker’s First Amendment rights.
  5. Award of costs and attorney fees. This is a vital deterrent against SLAPP suits and protects a defendant from suffering financial devastation.
  6. Broad judicial interpretation of anti-SLAPP laws to protect free speech. The UPEPA and several state anti-SLAPP statutes instruct judges to read the statute broadly to protect free expression rights.

Link to the rest at The Authors Guild

Freelance Isn’t Free Act Passes in New York State

From Publishers Weekly:

After being introduced as a bill back in February by Democratic New York state senator Andrew Gounardes and assembly member Harry Bronson, the Freelance Isn’t Free Act has been passed in New York State. The law is intended to establish and enhance the rights of freelance workers including authors, journalists, and other writers on contract.

S8369 will build upon the law previously instated in New York City, expanding the protections for freelancers state-wide. The law is intended to “protect contract and freelance workers from wage theft by ensuring all freelancers receive appropriate contracts for their work, are paid in a timely manner, and have state support to recoup unpaid wages.”

The law requires employers to provide written contracts for all freelance workers and that those freelancers be paid by the agreed-upon date or within 30 days of the completion of the work. It also permits freelancers to collect double the agreed-upon fee if employers do not satisfy those requirements. The law also lowers the threshold for mandating additional financial remediation from contractors to contract workers, and makes the New York State Labor Department the regulatory agency for freelancers in the state.

Link to the rest at Publishers Weekly

Sixty-Two Percent of NY Freelance Workers Report Never Being Paid for Work Performed, Says New Survey

From The Authors Guild:

Survey also found that nearly 40 percent of freelancers have had difficulty paying rent or other bills due to nonpayment for services rendered

A survey by the Authors Guild, Freelancers Union, Graphic Artist Guild, American Society of Media Photographers, National Press Photographers Association, American Photographic Artists, and National Writers Union found that 62 percent of freelance workers based in New York had lost wages at least once in their career over an employer’s refusal to pay them. It also found that 51 percent of those who had lost income to nonpayment reported losing more than $1,000, and 22 percent reported losing more than $5,000.

The advocacy organizations conducted the survey as part of their efforts to persuade the New York State Assembly to pass the Freelance Isn’t Free Act (FIFA) (S8369/A9368) this session.

. . . .

If the bill passes, New York will become the first state in the nation to provide legal protections to freelance workers who live and work in New York state, as well as out-of-state freelancers who work for New York-based companies. Freelancers currently account for approximately 35 percent of the U.S. labor force and yet have none of the protections that employees have long had—even when doing the exact same job as an employee.

“In the five years since we helped secure the passage of New York City’s version of Freelance Isn’t Free, the law has helped freelancers recover $2,144,198 in owed compensation for their work. But freelancers don’t only work in New York City. From Buffalo to Albany, Montauk to Plattsburgh, companies use freelance workers for everything from manufacturing, construction, and warehouse work to website developers, writers and graphic designers, and they deserve the same legal protections as their NYC colleagues,” said Rafael Espinal, Executive Director of the Freelancers Union.

Additionally, the survey found that:

  • 91% of survey respondents reported experiencing late or overdue wages at least once in their career, with 54% reporting experiencing delays of 3 months or longer.
  • 79% of respondents attempted to recoup lost wages through their own demands (i.e. emails or phone calls). A majority of respondents claimed they had to communicate their demand to a client on multiple occasions (three times or more), with 76% of respondents reporting that they spent 1-2 hours a week trying to recoup payment. Less than one percent of respondents went through the legal system.
  • 39% of respondents said non or overdue payment affected their ability to pay bills or rent

. . . .

“Freelance journalism was hit especially hard during the pandemic. Loss of freelance journalism jobs was consistently cited as the first or second main reason for the decline in income by respondents to the Authors Guild’s COVID-19 Surveys,” said Mary Rasenberger, CEO of the Authors Guild. “Forcing freelance writers to spend weeks or months chasing down earned wages further cuts into their wages because it takes time away from other paying work, and often forces them to accrue debt. It pushes people that are already struggling to earn a sustainable living to the brink and is deeply unfair. Publications that refuse to make payments on time should be held to account. And thanks to FIFA they will.”

. . . .

“Freelance journalists and business writers rarely make enough money to afford a lawyer, so it didn’t surprise me to see that less than one percent of respondents sought a legal remedy,” said Larry Goldbetter, President of the National Writers Union. “This reinforces FIFA’s need. Very few freelancers know what legal remedies are available or understand how small claims court works. If FIFA passes, the state will assume some responsibility for helping to make sure the freelancer gets paid, or can fine repeat offenders until they get the message.”

Link to the rest at The Authors Guild

  1. Don’t do business with jerks.
  2. If you’re getting bad vibes about the person/organization who wants your services, just say no. You’re too busy to take on more work right now (meaning that you’re always too busy to do business with jerks).
  3. If you’re on the receiving end of a request for work, there’s nothing wrong with politely asking how the person found you.
  4. Before you agree to do anything, spend at least ten minutes online searching for any negative information about the person who wants to work with you. If you have friends in the same business you are in, ask around about the person/organization who wants you to help them.
  5. Get a big deposit up front. You’re a pro and that’s how professionals operate.
  6. Have a written contract that specifies, among other things, that any disputes arising under the contract, including failure to pay any fees when due, will be litigated in the county and state where you reside and that the counterparty consents to jurisdiction and venue in that location.
  7. The winner of any lawsuit arising under the contract is entitled to reasonable attorneys fees in an amount no less than $1,000 together with any court costs.

PG doesn’t write contracts any more, so this is not legal advice.

You’ll need to hire an attorney where you live to write a real contract for you.

Songwriter’s heirs can’t reclaim rights to Elvis hit, judge rules

From Reuters:

The daughter and grandson of Hugo Peretti, who co-wrote Elvis Presley’s hit song “Can’t Help Falling in Love,” cannot recover rights to the song from Authentic Brands Group LLC under copyright law, a U.S. appeals court said Wednesday.

The rights that Valentina Peretti Acuti and Paul Reitnauer argued they were entitled to did not exist when Peretti and his family sold them, the 2nd U.S. Circuit Court of Appeals said.

. . . .

It was 1961 when Peretti and two other songwriters wrote the ballad “Can’t Help Falling In Love,” which became a hit for Presley and has since been recorded by hundreds of other musicians.

Peretti, his wife and his daughters agreed in 1983 to transfer their right to renew Peretti’s copyright interest in the song to Julian and Joachim Aberbach, who later transferred it to Authentic Brands. The company manages dozens of brands, including Presley’s.

Acuti and Reitnauer gave Authentic Brands notice that they were terminating the contract in 2014, under a provision of federal copyright law that allows creators to terminate transfers of their copyrights and reclaim them after decades.

The heirs sued in Manhattan federal court in 2020 after Authentic Brands disputed the termination, seeking a ruling that it was effective. The 2nd Circuit agreed Wednesday with the district court’s decision to dismiss the case last year.

The termination right only applies to agreements executed by the author themselves, and the only concrete right Peretti owned at the time of the contract was his “interest in the composition during its original term,” U.S. Circuit Judge Gerard Lynch said.

The rights at issue in the case were not concrete as of 1983 and depended on several hypothetical factors before becoming concrete, like Peretti being alive when the copyright was up for renewal and his wife staying married to him, Lynch said.

Peretti died in 1986, and his widow, daughters, and surviving co-writers renewed the copyright in 1989. The rights at issue came into existence at that time and transferred to the Aberbachs, Lynch said.

Link to the rest at Reuters and thanks to C. for the tip.

PG thinks this isn’t the clearest summary of the case, but hasn’t had the time to read the entire opinion yet. It does appear to raise substantial concerns about heirs of the original creator of a creative work (book, music, painting, photo, etc.) not being able to terminate a license for the work in the same manner as the creator could under §203 of the Copyright Act of 1976.

The Reuters account is a bit jumbled, but PG is going to read the opinion and keep his eyes open for the variety of legal analyses that will be forthcoming in the next several days.

Suffice to say, intellectual property attorneys and their staffs will be burning the midnight oil while reading a lot of contracts their clients have signed that may be impacted by today’s decision. PG also predicts this isn’t the last lawsuit dealing with the issue.

Bring on the ladies…

From The Legal Genealogist:

Evelyn, handling the estate.

Or Shirley, leaving a will.

So… is Evelyn the deceased’s daughter, perhaps? Maybe a sister?

Is Shirley a single woman or a widow?

Do we even know if Evelyn or Shirley is male or female?

Well…

It depends.

We might have a clue if the specific position being filled or role being played in the record by Evelyn or Shirley is spelled out in full.

Because there’s a big difference between an administrator and an administratrix, or between an executor and and an executrix.

Or between a testator and a testatrix.

Or between a whole lot of words we see in legal documents where sometimes it ends in -or and other times it ends in -ix.

Because that difference may very well tell us whether Evelyn and Shirley are male or female.

Because the -ix ending is always going to be referencing a female.

If Evelyn was appointed by the court to handle the affairs of a deceased person who didn’t leave a will, any reference to Evelyn as an administratrix of that estate is telling us that’s a her, not a him. If Evelyn was named in the will to handle the estate, any reference to the executrix, ditto.

And if we see our will-writing Shirley described as a testatrix, ditto again.

There are a bunch of terms like this we may come across in historical records:

• Actor, actrix.
• Creditor, creditrix.
• Curator, curatrix.
• Debtor, debitrix.
• Disseisor, disseisitrix.
• Emtor, emtrix.
• Orator, oratrix.
• Procurator, procuratrix.
• Prosecutor, prosecutrix.
• Relator, relatrix.
• Tutor, tutrix.
• Vendor, venditrix.

Now… particularly as time goes on, when the word doesn’t have the -ix ending, we can’t be 100% sure whether Evelyn or Shirley is male or female. The gender distinction in words begins to fade in the 19th century

Link to the rest at The Legal Genealogist

PG has followed The Legal Genealogist for a long time via an excellent newsletter, produced weekly (PG thinks, if not weekly, definitely regularly).

The individual behind The Legal Genealogist is Judy Russell. She is a genealogist with a law degree, and her “purpose here at The Legal Genealogist is, in part, to help folks understand the often arcane and even impenetrable legal concepts and terminology that are so very important to those of us studying family history.”

You, too, can be regularly educated by Ms. Russel if you sign up for her newsletter.

7 Common Types of Plagiarism

From The Grammarly Blog:

Plagiarism is the act of passing off someone else’s work as your own. That’s the most basic definition—there’s actually a lot more nuance to it, and you might be surprised to learn just how many different kinds of plagiarism exist.

. . . .

What is plagiarism, and why should it be avoided?

As we said above, plagiarism occurs when one writer attempts to pass off another writer’s work as their own. But that’s not all plagiarism is. Plagiarism also occurs when a writer references another’s work in their own writing and doesn’t properly credit the author whose work they referenced. It’s even possible for a writer to plagiarize their own work.

Plagiarism should be avoided for a variety of reasons. For one, it’s dishonest. Put simply, presenting another writer’s work as your own is lying.

Another reason to avoid plagiarism is that you don’t learn anything by plagiarizing another’s work. When your professor assigns an essay, they expect an honest effort from you to engage with the topic you’re covering, apply critical thinking skills, and demonstrate your ability to effectively develop, present, and defend your position. An original essay, flaws and all, shows your professor how you’re progressing in their class and any areas where you might need some extra support.

It’s also disrespectful to the original author. Writing is work, and it can be very challenging work at times. Claiming somebody else’s work as your own strips them of the recognition they deserve for the effort they put into creating it and gives yourself undue credit.

Keep in mind that although this blog post focuses on plagiarism in writing, it’s possible to plagiarize any kind of creative or academic work. Copying another artist’s work is a form of plagiarism, taking credit for another scientist’s research is plagiarism, and copying another app’s code and building your own with it without recognizing the original programmer is plagiarism. Basically, any act of presenting another person’s work as your own is an act of plagiarism. When you profit from an act of plagiarism, it’s known as intellectual property theft. Intellectual property theft is a criminal offense.

7 common types of plagiarism

Plagiarism comes in many forms. These seven types of plagiarism are the most common:

1. Complete plagiarism

This overt type of plagiarism occurs when a writer submits someone else’s work in their own name. Paying somebody to write a paper for you, then handing that paper in with your name on it, is an act of complete plagiarism—as is stealing or “borrowing” someone’s work and submitting it as your own.

An example of complete plagiarism is submitting a research paper for English class that your older sister wrote and submitted when she took the class five years ago.

2. Direct plagiarism

Direct plagiarism is similar to complete plagiarism in that it, too, is the overt passing-off of another writer’s words as your own. The difference between the two is how much of the paper is plagiarized. With complete plagiarism, it’s the entire paper. With direct plagiarism, specific sections or paragraphs are included without crediting (or even acknowledging) the author.

An example of direct plagiarism is dropping a line or two from your source directly into your work without quoting or citing the source.

3. Paraphrasing plagiarism

Paraphrasing plagiarism is what happens when a writer reuses another’s work and changes a few words or phrases. It’s a common type of plagiarism, and many students don’t even realize it’s a form of plagiarism. But if you’re presenting someone else’s original idea in your writing without crediting them, even if you’re presenting it in your own words, it’s plagiarism.

Link to the rest at The Grammarly Blog

While PG thinks plagiarism is a bad thing and no one should engage in the practice, he will disagree with some of the points in the OP.

In the United States, there is a vanishingly small possibility of being criminally prosecuted for plagiarism.

Generally speaking (no legal advice), to prove criminal copyright infringement charges (not exactly the same as plagiarism) in the US, the prosecutor/district attorney must produce evidence of three things the government can prove beyond a reasonable doubt (and, since a criminal case can only be prosecuted by the government, you must persuade an overworked district attorney that your case is more important than the three murders, seven armed robberies and 18 burglary cases sitting on her/his desk when that individual has never heard of criminal copyright infringement before, let alone prosecuted anyone for it):

  1. the author had a valid copyright;
  2. the defendant used, copied, or distributed the material without the author’s permission;
  3. it was done on purpose; and (4) it was done for personal financial gain or business advantage.
  • Felony charges can be filed when 10 copies of a copyrighted work are reproduced or distributed with a retail value of more than $2,500.
  • Misdemeanor charges can be filed with just 1 copy and retail value of $1,000.

(Source of lists – Pate, Johnson & Church)

Plus some types of plagiarism described in the OP likely don’t rise to the level of copyright infringement.

That said, being publicly accused of plagiarism certainly has the potential to ruin an author’s reputation and, if credible, may attract attention online and in traditional media.

As the OP teaches, plagiarism is easily remedied by crediting the original source of whatever you’re writing.

Yes, if someone claims you’ve plagiarized their work and they’re wrong, you can probably sue them back as well.

With respect to using someone else’s idea without using their expression of that idea is not copyright infringement. Copyright protects the expression of ideas, not ideas themselves.

As PG has mentioned before, Boy meets girl, boy loses girl, boy gets girl (or many-gendered variations thereof) is not protected by copyright and he doesn’t think you can plagiarise a plot structure as simple as that or the wide variety of plots typically found in any sort of genre works.

Supreme Court Takes up Andy Warhol’s “Prince Series” Fair Use Circuit Split

From The National Law Review:

The U.S. Supreme Court agreed last week to review the Second Circuit’s decision that Andy Warhol’s well-known “Prince Series” was not a “transformative” fair use of the copyrighted Lynn Goldsmith photograph that Warhol used as source material (see Bracewell’s earlier reporting here).

The Second Circuit’s decision conflicts with the Ninth Circuit, and is potentially at odds with the Supreme Court’s recent ruling in Google v. Oracle, which held that Google made “transformative” fair use of Oracle’s Java software language to build the Android smartphone platform. The Supreme Court upheld the Ninth Circuit’s ruling that the exact copying of computer code could be transformative if it “alter[ed] the copyrighted work ‘with new expression, meaning or message.’” Following Google, the Second Circuit issued a revised opinion in the Prince case that kept its original ruling and distinguished the Google decision as applicable to the “unusual context” of computer code. The high court is expected to settle the circuit split and provide much needed guidance on whether the Google ruling applies outside of the computer programming context.

The controversy arose when the Andy Warhol Foundation sued to fight allegations of copyright infringement from Goldsmith, a photographer who contended that she was not aware that Warhol had used her 1981 photograph of Prince until the music icon’s passing in 2016. A New York district judge ruled that Warhol’s series had transformed Goldsmith’s image from “a vulnerable human being” into an “iconic, larger-than-life figure.” Therefore, Warhol’s use of Goldsmith’s photo did not constitute copyright infringement.

The Second Circuit rejected the district judge’s consideration of the intent and meaning behind the work, and found that the Prince Series was not a “transformative” fair use of the copyrighted photograph because it retained the “essential elements” of the Goldsmith photograph without “significantly adding to or altering” those elements.

Link to the rest at The National Law Review

In the United States, there are both federal courts and state courts. Generally speaking state courts in a given state focus on resolving disputes arising under the statutes of a given state, although some federal questions are occasionally mixed-in with state legal issues.

Federal courts typically deal with matters arising under federal law, although disputes between residents of different states can, under some circumstances, be filed or removed to federal courts, (“diversity jurisdiction”).

The large majority of all legal disputes in the US are resolved in state courts and there are many more judges in state courts than there are in federal courts. Dissolutions of marriage, for example, are virtually all resolved in state courts.

There are a handful of states which have their own limited copyright laws, but the serious copyright action arises under federal copyright law and is those fights happen in federal courts.

United States federal courts are in three tiers

  1. Federal District Courts are found in every state and that’s where disputes governed by federal law originate.
  2. Federal Courts of Appeal fall into 13 circuits populated by about 180 appellate judges. These circuits were established long ago and range from geographically small – the Second Circuit covers the district courts located in Connecticut, New York and Vermont. To the geographically enormous like the Ninth Circuit, which includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Oregon and Washington plus the District Court of the Northern Mariana Islands, a US commonwealth, governed by the US since the end of World War II.
  3. At the top of the Appellate Court hierarchy is the US Supreme Court, consisting of nine justices. As with all other federal judges, the Supreme Court justices are appointed for life.

The Supreme Court is required to hear appeals from a decision of one of the courts of appeal on some types of cases. With respect to other types of cases, the Supreme Court chooses which of the many appeals filed with them that the Court will accept.

The large majority of copyright cases end their lives in the Courts of Appeal. One of the more frequent types of cases the Supreme Court may accept is one where one or more of the 13 Circuit Courts of Appeal has/have issued decisions that conflict with decisions made by one or more of the other Circuit Courts of Appeal.

Conflicting appellate court decisions regarding the Warhol copyright case is likely the principal reason why the Supreme Court accepted it. The Supreme Court doesn’t specify why it accepts an optional appeal, but conflicts between the circuits with respect to something that is a major financial player in the US economy such as copyright protection likely impacted the Court’s decision. Computer code, movies, television and books are only a few of the many major US industries that rely upon copyright issues. Of the top ten largest US companies per Fortune magazine, three – Amazon (2), Apple (3) and Alphabet (AKA Google) (9) generate an enormous portion of their revenues via copyright-protected products and services.

Here are small-form examples of some of the Warhol creations at issue in the above-described request for the Supreme Court to take the case.

Image Credit: The National Law Review

Why Every Writer Needs a Social Media Executor, NOW!

From Anne R. Allen’s Blog… with Ruth Harris:

Social Media Executor? That may not be a term you’re familiar with, but believe me, you need one.

That hit home for me this week after the tragic death of my friend, the kind, talented, funny author Barbara Silkstone. I hadn’t heard from her for a month or two, so I went to check her Facebook page. But it had been gutted. All posts, photos, friends, etc. had been deleted. Nothing was there but her name, header and a link to her blog. And the link was dead. Her lovely website and blog had simply evaporated. Thunk.

I put a note on my own FB page asking if anybody had news of her. A FB friend posted a link to a page at the Austen writers’ group. Barb had written a dozen or more Pride and Prejudice “variation” novels, and the Jane Austen fans kindly put up a memorial page for her.

They said she had died in mid-February. That meant she went shortly after our last phone conversation. I knew she’d been suffering from a spine injury. But she had seemed chipper and positive and had been looking forward to crab cakes for dinner. I’d been planning to phone her again soon. Instead, I found out she’d been gone for two months.

Only the Jane Austen fans knew.

But what about the fans of Barbara Silkstone’s hilarious mysteries and other comic novels? They have no way of finding out about her. Will people still buy books from an author who doesn’t seem to exist? Social media is so important to book sales these days.

Whoever her heirs are, they will miss out on royalties by erasing Barbara from the Web. In deleting her, they are deleting their own profits. Somebody needed to clue them in.

None of this would have happened if Barbara had appointed a social media executor. I’m kicking myself for not volunteering to do it myself. I have written about this before, but I can see it’s worthwhile to do an update.

. . . .

A social media executor can be any trusted friend or relative who’s savvy about social media.

Make it clear to this person — it’s best to put it in writing — what you want to happen to your social media and website/blog when you’re gone. If you have a free blog, do you want your executor to keep it up and monitor it for comments and spam? (If you have a self-hosted blog or paid website you want preserved, that should be put into your will and communicated to your financial or digital executor.)

It’s often best if your social media executor isn’t also your financial executor. Appointing an online friend or fellow writer will take the burden off the family. Families have so much overwhelming stuff to deal with when there’s a death, that social media can seem trivial. That may be what happened with Barbara Silkstone.

A social media executor can protect your social media accounts and notify online friends of your death.

They don’t have to deal with anything financial.

Things like bank passwords — and book retailer information for indies — need to go to your financial or digital executor. (You’ll need a digital executor if your heirs aren’t computer-savvy.)

Link to the rest at Anne R. Allen’s Blog… with Ruth Harris

PG says a person’s title doesn’t bring any sort of magic with it. He doesn’t know what a probate judge in any jurisdiction would do if faced by someone claiming to be a Social Media Executor who is disagrees with what the Executor named in the will, whose powers and responsibilities are set forth in various state laws and legal opinions by the state’s courts, is doing with a deceased author’s social media accounts.

PG suggests that an author’s executor needs to be a responsible individual with business savvy and good judgment. If a trust is involved in the author’s estate plan, the same qualifications would be a good idea for the trustee.

While there is certainly room for innovation in designing an estate plan for an author (or a great many other occupations), selecting someone whose middle name is “Reliable” or “Conscientious” is the first and most important thing to consider. A reliable and conscientious person can make good decisions on the spot, based upon facts on the ground after an author (or anyone else) dies. Tying that person’s hands with extensive directions in a will or trust when the state of things in the future is simply not known is, in PG’s deathly reasonable opinion, almost always a bad idea.

One of the most common stories one hears from estate planning attorneys working in rural areas is the difficulty in talking a third-generation farmer or rancher from inserting a provision in the estate plan that boils down to, “Whatever you do, don’t sell the farm/ranch!!!”

One such story concluded with a wiser/cooler-thinking individual saying, “Frank, your daughter owns the biggest scuba-diving school in Honolulu and your son is an investment banker in Manhattan. Which one is going to move to Iowa to farm corn?”

What Spotify should learn from the Joe Rogan affair

From The Economist:

hen neil young and Joni Mitchell saw an injustice, they used to attack it by writing protest songs, taking on racism in the “Southern Man” and the Vietnam war in “The Fiddle and the Drum”. Today, the two musicians prefer to speak out by pressing the mute button. The pair have withdrawn their recordings from Spotify, the world’s biggest music streamer, in protest at “The Joe Rogan Experience”, a podcast that gave airtime to anti-vaxxers. Spotify has decided to hang on to its podcaster.

. . . .

Mr Rogan is a bigmouth and he has been wrong about covid-19 and probably much else. Yet he has broken no laws, nor even, Spotify says, the company’s own content rules. As a matter of principle, Mr Rogan should be free to speak. As a commercial question, Spotify has made a publisher’s gamble that his popular show will attract more customers than it repels. The fact that share prices in Spotify and other platforms such as Meta, the parent of Facebook, are tumbling because of slowing growth underlines how that gamble is, in the most literal sense, Spotify’s business.

But the dispute points to a trickier emerging problem. Most of the 3.2m podcasters on Spotify are not like Mr Rogan, who sold his show to the company in 2020 for a reported $100m. The vast majority are amateurs, uploading their shows to Spotify’s platform as easily as they would to a social network. Likewise, most of the tens of thousands of new songs uploaded to Spotify every day are recorded in bedrooms and garages. The result is that the content mix on audio platforms is starting to look less like the curated library of Netflix and more like the infinite hotch-potch of YouTube. Unlike other social networks, however, audio platforms have little experience in moderating content.

They need to learn fast. The vaccines bust-up is their first taste of an argument that other social networks have grappled with for years and which is now coming to audio. On the one hand, most consumers want protection from the most harmful content, the best example being the incitement to violence, which even America’s First Amendment condemns. Facebook was used to foment genocide in Myanmar: one day audio might be, too. On the other hand, few want tech executives to become censors. Plenty of good music features bad language, disturbing ideas and violence. Some podcasts will stoke controversy. Free speech must be the default.

The starting point is transparency, which the audio platforms sorely lack. Spotify published its “platform rules” only following the Rogan explosion. Apple, the next-biggest streamer, has content guidelines for podcasts but a rough style guide for music. Amazon, the third-largest, has published even less in the way of rules. And whereas Facebook and co release regular reports on what content they have taken down and why, the audio streamers are opaque. Amid the Rogan crisis, Spotify casually mentioned that it had removed 20,000 other podcast episodes over covid misinformation. What else is it taking down? No one knows.

Link to the rest at The Economist

Books about Estate Planning and Authors

PG took a look on Amazon to locate books on the topic. He hasn’t reviewed any of these books and warns one and all that a book is not a substitute for a competent attorney familiar with estate planning and intellectual property issues.

One caveat – While the Federal Estate Tax is uniform across all states, each state has its own laws governing estates and trusts and its own laws regarding the probate of wills and state inheritance taxes. Some states don’t have state inheritance taxes.

This is why, you’ll want to look for an attorney who is experienced estate planning in your state. Should you move to a different state after creating a will and/or trust, you’ll want to have an experienced estate planning attorney practicing in your new state domicile review your current estate plan documents.

A Primer on Estate Planning as a Writer

From Jane Friedman:

Awareness of estate planning issues can be especially important to writers because of the unique nature of property rights in written works. Proper planning ensures that the ownership of a writer’s works after his or her death will end up in safe and knowledgeable hands.

In addition to giving the writer significant posthumous control over his or her works, an estate plan can greatly reduce the overall amount of estate tax paid at death. Because valuations of written works for estate tax purposes are not precise, estate taxes may turn out to be significantly higher than might have been anticipated. Thus, it is very important for writers to reduce their taxable estate as much as possible.

An estate plan may be either will-based or trust-based. Each type has advantages, but both are legitimate forms of estate planning. Estate laws and probate procedures vary throughout the United States, and a plan that works well for one person in one state may be inappropriate in other situations. Proper estate planning requires a knowledgeable lawyer and sometimes the assistance of other professionals, such as life insurance agents, accountants, and bank trust officers.

The Will

A will is a unique document in two respects. First, if properly drafted, it is ambulatory, meaning it can accommodate change, such as applying to property acquired after the will is made. Second, it is revocable, meaning it can be changed or canceled before death.

When carefully prepared, wills not only address how the assets of the estate will be distributed, but also foster better management of the assets. Those persons responsible for administering the estate of a decedent are known as executors in some states and personal representatives in others. It may be a good idea for writers to appoint joint executors so that one has publishing or writing experience and the other has financial expertise. In this way, the financial decisions can have the benefit of at least two perspectives. If joint executors are used, it will be necessary to make some provision in the will for resolving any deadlock between the two. A lawyer’s help will be necessary to set forth all of these important considerations in legally enforceable, unambiguous terms.

It is essential to avoid careless language that might be subject to attack by survivors unhappy with the will’s provisions. A lawyer’s help is also crucial to avoid making bequests that are not legally enforceable because they are contrary to public policy.

Trusts

A common way to transfer property outside the will is to place the property in a trust that is created prior to death. A trust is simply a legal arrangement by which one person holds certain property for the benefit of another. The person holding the property is the trustee; those who benefit are the beneficiaries.

To create a valid trust, the writer must identify the trust property, make a declaration of intent to create the trust, transfer property to the trust (this is often a step that is missed and can create a multitude of problems), and name identifiable beneficiaries. Failure to name a trustee will not defeat the trust, since if no trustee is named, a court will appoint one. (The writer may name himself or herself as trustee.)

Trusts can be created by will, in which case they are termed testamentary trusts, but these trust properties will be probated along with the rest of the will. To avoid probate, the writer must create a valid inter vivos or living trust.

Advantages of Using a Trust

The use of trusts to prepare a trust-based plan will, in certain situations, have significant advantages over a traditional will-based plan. For example, the careful drafting of trusts can allow the writer’s estate to avoid probate, which in some states is a lengthy and expensive process. Similarly, the execution of an estate through a trust-based plan can ensure a level of privacy not possible in probate court. Although these kinds of provisions provide some control over the estate, writers are cautioned that trusts cannot adequately substitute for a will if used haphazardly. Professional assistance is strongly recommended.

Link to the rest at Jane Friedman

PG says that dying without a will and/or trust usually ends up being the most expensive and time-consuming way of handling an estate for an author or anyone else.

That said, a poorly-drafted will can also cause an immense amount of difficulty and expense.

As mentioned previously, you’re looking for an estate planning attorney who can answer your questions, including questions about state and federal death taxes and how to minimize them.

Large law firms will have estate planning attorneys, but are likely to charge more for a similar service than a medium-sized or smaller law firm. That said, the amount of the fee a large firm charges for creating an estate plan will cost less than a legal dispute about your estate after you die.

As mentioned in comments to a prior post, you will want to make certain your estate-planning attorney is familiar with the special issues that can arise with intellectual property. If you have any concerns about an estate planning attorney’s appreciation of copyright issues, it will be worth it to ask her/him to associate counsel specializing in intellectual property, preferably copyright law (as opposed to patents, trademarks, trade secrets, etc.).

PG suggests accessing online information about authors and estate planning to become generally familiar with issues, jargon, etc. Check more than one or two sites so you’re not getting someone’s pet theories, peeves, etc.

For the record, although PG has done some estate planning for authors and others, he doesn’t do so any more.

When a Writer Dies: Making Difficult Decisions About the Work Left Behind

From Jane Friedman:

Nine days before my wife died, she forwarded me a Brevity post, The Death of a Writer, which asked:

Who is going to deal with your literary legacy, and what do you want done?

My wife wrote, “…interesting re what to do…”

She added a lifesaver emoji.

My wife, Mary Ann Hogan, journalist and teacher, died June 13, 2019, her “tango with lymphoma” ended, her life’s literary work unfinished.

Her manuscript explored her relationship with her father, William Hogan, longtime literary editor of the San Francisco Chronicle. Though he spent his life writing about books, Bill Hogan never wrote one of his own.

Mary Ann died thinking her book would redeem them both.

. . . .

My wife’s friends and writing partners agreed to help me read and judge what to save for the book or elsewhere. Then there would be drafts of the book to react to and fact-check. Her posse was more than willing. Mine, too.

We puzzled over things such as:

Should the final chapter be in my voice or hers? Both, we said. I would not pretend to be her. But I would quote her all the time, and we found those quotes.

What about the references to mental illness? She talked about panic attacks and flying thoughts, but never named the various diagnoses. What about wine? She talked about how she and her father all were big drinkers, without details. Leave it as she wrote it, we said.

What about the title? Circle Way came from the posse. Larger illustrations? That idea came from her writing mentor.

Rewrites? Mary Ann had created a lyric essay that jumped around like Kurt Vonnegut’s Slaughterhouse-Five, becoming at times a duet with her late father’s journal entries. This mosaic, we said, is best as is.

There’s more of her work to publish, in time, and now that we have a system, it can happen.

Finishing Mary Ann’s manuscript was not as hard as finding the right publisher. Parts of Circle Way had won three writing competitions. Publishers said it was “beautiful.” They also said it was “too literary” for the commercial marketplace.

My promise to my wife—to finish her book—felt shattered.

Now what?

Link to the rest at Jane Friedman

PG won’t spend much time on this, but talk to an attorney and get a will and/or a trust in place before you die or become incapacitated. Dying without a will is the most time-consuming and expensive way of passing your assets on to your heirs.

Writing a will is anything but rocket science, but if you have significant assets (more than a few hundred thousand dollars) or unusual types of property (like books you have written and self-published or books you’ve had published by any sort of publisher because whoever inherits the rights to those books will be able to collect royalties on them for the next 70 years in the US and a similarly long time in other nations recognizing copyright), the amount of money you spend to talk to an attorney and get her/his assistance will be tiny compared to the legal expenses of cleaning up an estate that hasn’t been handled properly.

College Student Views on Free Expression and Campus Speech 2022

From The Knight Foundation:

College campuses have long been places where the limits of free expression are debated and tested. In recent years, this dialogue has grown more fraught as some schools have sought to create a more protective speech environment for students. Moreover, key events shaping the past two years, such as the COVID-19 pandemic, the racial justice movement and the 2020 election, have only added deeper dimensions to the dialogue around free speech playing out on campus and in society at large.

The “Knight-Ipsos College Student Views on Free Expression and Campus Speech” report is the fourth in a series of Knight Foundation reports measuring college student attitudes toward speech and the First Amendment since 2016.

. . . .

KEY FINDINGS 

  • Students view speech rights as important, yet less secure than in years past: Students continue to believe First Amendment rights and concepts of free speech are important to democracy. However, the percentage of students saying speech rights are secure has fallen every year since this question was first asked in 2016. This includes a 12-point decrease from 2019 as an increasing number of students—particularly Republicans—say they believe speech rights are threatened. 
  • Students of color believe their speech is less protected: While a majority of college students express confidence that the First Amendment protects “people like them,” Black students in particular feel much less protected, with a sharp decline from 2019 to 2021. 
  • Students believe exposure to a wide spectrum of speech at college is important: Most students continue to say colleges should allow students to be exposed to all types of speech, including political speech that is offensive or biased, rather than prohibiting speech they may find offensive. 
  • Students favor college policies that limit racist speech, but support for other speech interventions remains low: Most students favor colleges instituting policies that restrict the use of racial slurs on campus, suggesting that, for them, this particular category of speech does not merit mandated exposure on campus. Just 1 in 4 students favor schools disinviting controversial speakers, down from more than 2 in 5 in 2019. Similarly, the number of students who support colleges providing safe spaces or speech codes has fallen over the past two years. 
  • Students say the campus climate stifles free expression, yet speech on campus is making nearly 1 in 5 feel unsafe: More students now say the climate at school prevents some from saying things others might find offensive, and fewer feel comfortable disagreeing in class. Yet slightly more now report feeling unsafe because of comments made on campus than in 2019. This is particularly true for female students and students of color. 

Link to the rest at The Knight Foundation, where you can find a lot more information on the topic and download a 44-page PDF report about the survey results.

Big Tech Wants To End Copyright

From Tilting at Windmills:

I’m a writer by trade. I don’t have another gig as a lawyer or comedian or anything else. This is what I do to support my family.

Luckily, I’m able to do this because the work I create is covered by copyright. Salem—the parent company for sites like Townhall, Red State, Bearing arms, Twitchy, Hot Air, and PJ Media—is able to make money off content because that content can’t be found anywhere else.

At least most of it.

. . . .

Copyright tends to be more of a factor when it comes to entertainment. Books, movies, and television all enjoy copyright protection, which means you can’t just decide to start streaming Firefly on your own for fun and profit. You’ve got to deal with Fox, first.

. . . .

However, as Jennifer Van Laar notes at Red State, big tech seems to be working to undermine much of that.

For years companies like Google and Spotify, whose revenue streams depend on content and profits depend on how cheaply they can acquire it, have worked to weaken copyright protections. They know they can’t get what they want through a transparent legislative process, so they’ve set their sights on effectively changing the law by using “a well-established legal organization to ‘restate’ and reinterpret our copyright laws for the nation’s judicial system.”

The organization, American Legal Institute (ALI), an invite-only organization for legal scholars, is known for its Restatements of Law, which have been described as “Cliff’s Notes” guides to various legal topics:

The ALI…is widely known and rightfully recognized within legal circles as an authority on explaining the law. Through their best-known works, called “Restatements of the Law,” the ALI compiles all aspects of a legal topic and publishes a “Cliff’s Notes” guide to that topic. These Restatements are regularly relied upon by our nation’s judges when they are asked to decide on cases requiring expert knowledge of a particular subject.

According to the Content Creators Coalition, ALI’s Restatements are “descriptive black-letter texts designed ‘to reflect the law as it presently stands’ that are used by courts, scholars, and legislatures to understand the current state of the law on any subject. ALI Restatements have historically been considered the gold standard for unbiased legal clarity and precision” (emphasis added).

Although ALI’s Restatements almost exclusively focus on common law (formed by precedent) and not statutory law, the organization started a project aiming to restate the Copyright Act, a federal statute, back in 2013 at the suggestion of UC Berkeley law professor Pamela Samuelson. According to then-Acting Register of Copyrights Karyn Temple:

[T]he Restatement project appears to create a pseudo-version of the Copyright Act that does not mirror the law precisely as Congress enacted it.

Samuelson is the founder of the Samuelson-Glushko Law Clinics (which one blogger referred to as “Silicon Valley’s answer to the Confucius Institutes)” who, at a Copyright Society of the USA conference “vehemently railed against awards of damages for copyright infringement while a room full of the nation’s top copyright law practitioners sat in shocked, slack-jawed silence or excused themselves for coffee.”

. . . .

Basically, though, Big Tech has decided that it wants to fund “legal research” that will undermine copyright because technology services benefit from looser copyright laws.

For example, you write a book. Now, I’ve written a few myself, so I know how much time and dedication goes into each one. Copyright laws allow you to have control over that book until or unless you give that up to someone, like a publisher. They then get the copyright so they can make money, giving you some of it.

. . . .

What’s happening here is that these Restatements, which are supposed to be based on the current understanding of the law, have been co-opted by some who actively oppose copyright protections in an effort to undermine the legal support for them. They’re blatantly misrepresenting the law in an attempt to effectively change the law.

And they’re likely to get away with it, too.

Link to the rest at Tilting at Windmills and thanks to K. for the tip.

PG will note that the author of the OP said he was not a lawyer upfront.

The Restatements he mentioned have been around forever. They’re published by a private company, The American Law Institute, universally referred to as ALI.

Restatements are a quick way of getting an overview of a legal subject or a piece of a legal subject, but Restatements aren’t the same as federal or state laws or formal decisions by federal or state judges.

When PG was doing a lot of litigation, he would resort to the relevante Restatement only if he couldn’t find any statute or court decision that was close to supporting his client’s case. On more than one occasion when he did this (not much more frequently than 2-3 occasions), the judge would either look at him (or opposing counsel, if opposing counsel tried to use a restatement) and say something like, “Does that mean you can’t find any Missouri law (or California law or federal statute or case) that supports your client’s case?”

If the judge didn’t say this first, opposing counsel (including PG if he was on the other side of a case where the attorney argued from a restatement) would say something like, “Your Honor” or “Judge” (if he knew the judge well), “I have included a great many citations to case law and statutes in order to support my client’s contentions. If counsel cannot locate any reliable citations, I’ll be filing a Motion for Summary Judgment (or whatever was appropriate) on behalf of my client because the other side apparently has no legal basis for their arguments.”

As a quote in the OP says, restatements are like the Cliff’s Notes version of the law. Just as Cliff’s Notes is the resort of desperate college students who aren’t ready for the final exam (May Cliff be blessed for all his past support of a younger and callower version of PG), for most judges with which PG is acquainted, quoting or citing a restatement, unless the restatement reference is accompanied by a whole bunch of on-point cases and statutes, is raising the desperation flag. An insightful client will be wondering why you didn’t recommend starting settlement discussions before wasting all the client’s money in court.

But Big Tech is a money machine and will waste a lot of money to get a 0.001% improvement in a legal position it’s trying to sell the justice system.

But, as always, PG could be wrong.

Hochul Vetoes New York’s Library E-book Bill

From Publishers Weekly:

Just hours before it was set to become law, New York Governor Kathy Hochul on December 29 vetoed New York’s library e-book bill. The bill is now back with the legislature, where it is tabled.

The veto comes despite strong grassroots support: in June, the bill unanimously passed the New York Assembly 148-0, and passed the New York State Senate 62-1. But the Association of American Publishers’ December 9 federal lawsuit seeking to block implementation of a similar law in Maryland sparked concern in the governor’s office. And in her brief explanation of the veto, Hochul cited the AAP’s concerns.

“While the goal of this bill is laudable, unfortunately, copyright protection provides the author of the work with the exclusive right to their works,” Hochul wrote. “As such the law would allow the author, and only the author, to determine to whom they wish to share their work and on what terms. Because the provisions of this bill are preempted by federal copyright law, I cannot support this bill. These bills are disapproved.”

The New York bill was also opposed by a cohort of powerful New York-based industry groups, including the AAP and the Authors Guild, which urged Hochul to veto the measure in a recent letter, calling the bill “an unjustified attack” that would have “a significant negative impact on the economy and jobs” in New York.

. . . .

The library e-book bills come after a decade of tension in the library e-book market, with librarians long complaining of unsustainable, non-negotiable prices and restrictions on digital licenses. Specifically, the bills emerged as a response to Macmillan’s controversial (and since abandoned) 2019 embargo on frontlist e-books in libraries, which led library advocates to take their concerns to state and federal legislators.

“This is a powerful moment for libraries,” concluded a December, 2020 report on digital lending from the ALA’s Joint Digital Content Working Group. “If we cannot find ways to make our digital collections robust and lasting, including a return to perpetual access as an option, libraries will never be able to meet an ever-increasing demand and provide equity to the communities we serve.”

Link to the rest at Publishers Weekly

Fighting Fake News, In Court

From Persuasion:

In November 2020, Ruby Freeman served as a temporary election worker to help count the vote in Fulton County, Georgia. “The times when I’ve decided to work for the county, I did so because I thought I could help and because I knew I could do the job well,” Freeman said in a statement issued through her lawyers. “What I didn’t know was that it would turn out like this.”

Meaning… this:

After the election, President Trump energetically pushed the bogus claim that Georgia’s election was rigged. Citing grainy images from a security camera, lawyers for the Trump campaign alleged that Fulton county workers had counted illegal ballots. Within hours, the claim was debunked by Georgia officials, including the Republican secretary of state’s office and the state Bureau of Investigation. The video showed “normal vote processing.”

By that time, however, various MAGA-friendly outlets had already published the accusation. They did not retract it. Instead, one of them, Gateway Pundit, identified Ruby Freeman by name, accused her of “voter fraud on a MASSIVE scale,” and added, “Maybe the Georgia police or Bill Barr’s DOJ may want to pay Ruby Freeman a visit.” The article concluded with two photographs of Freeman over the headline, “CROOK GETS CAUGHT.” Over the following days and weeks, Gateway Pundit continued to drive the story, with headlines like, “Has the FBI Spoken with Ruby Freeman or Ralph Jones Yet? And If Not, Why in the Hell Do We Have an FBI?”—complete with additional photos of Freeman.

Not surprisingly, Freeman’s life turned upside-down. “We know where you live, we [sic] coming to get you,” was one of many threats she received, according to her litigation complaint. Strangers camped out at her house, knocked on her door, harassed neighbors. She bought security cameras and deactivated the social media accounts for her business. On January 6, 2021, the day of the U.S. Capitol insurrection, the FBI recommended she evacuate her home. She did not return for two months.

“Right now, I can’t imagine ever going back to election work,” she said in her statement. “My life has been disrupted in so many ways.” Freeman’s daughter, Shaye Moss, who was an employee of the Fulton County elections department, endured similar torments, including messages saying she should die for her “treason,” threats to her grandmother and 14-year-old son, and protests at her office demanding her firing. “I’m afraid to be out in public,” Moss said in a statement provided by her lawyer. “Now I’d rather get my groceries delivered than go to the store because even that makes me nervous.”

Although Gateway Pundit is a well-known trafficker in falsehoods—PolitiFact rates 80 percent of the site’s fact-checked articles mostly or entirely false—it’s a major conservative website. Usually, litigating against such an outfit would be prohibitively difficult for an ordinary citizen, even if the case were watertight. The result: zero accountability.

With the help of a new legal aid project, however, Freeman and Moss are breaking that pattern by suing Gateway Pundit for defamation. (They’re also suing One America News and Rudolph Giuliani in a separate action.) That project—called Law for Truth—could have interesting implications for super-spreaders of toxic disinformation.

Launched in December by Protect Democracy, a nonprofit group in Washington, Law for Truth creates a pathway for victims of political libel to fight back. It’s based on the observation that traditional defamation actions have been one of the few ways of holding purveyors of fake news accountable.

. . . .

“Yet, as effective as defamation suits were when they were deployed, very few were filed relative to the sharp uptick in injurious defamation,” Ian Bassin, Executive Director and co-founder of Protect Democracy, told me. The underenforcement of defamation law is a kind of market failure, he argues. Law for Truth provides a remedy by “essentially creating a nonprofit plaintiffs’ bar focused on ensuring accountability under the law” for defamatory political disinformation.

No, the effort cannot halt the plague of disinformation. But it may change today’s lopsided odds against victims. “There is a real sense of impunity among some of these outlets,” said Rachel Goodman, who leads the Law for Truth legal team. “We think it would be good for defendants and potential defendants to understand that there are significant liability risks for spreading these lies.”

. . . .

Traditionally, civil-liberties advocates have cast a wary eye on defamation actions. All too often, litigation—actual or threatened—has been exploited by powerful interests to harass journalists and intimidate critics. Donald Trump is no stranger to this tactic, having promiscuously threatened to sue his critics both before and during his presidency. Taking journalists to court is a tried and true weapon of authoritarians. Just such abuses were the reason that, in 1964, the Supreme Court slapped down Alabama state officials’ use of libel law to stifle civil rights advocacy.

What the last few years have demonstrated, though, is that underenforcement of defamation law can be just as damaging to free speech as overenforcement. In the world of social media and fake news, spreading lies is trivially easy and often profitable. Russian-style “firehose of falsehood” disinformation campaigns are a staple of the MAGA movement. The prospect of losing your reputation and your safety would deter just about anyone from participating in politics—which, of course, is the point of MAGA’s campaign of intimidation against honest public officials.

Increasingly, civil-libertarians are taking this new reality on board. “There should be a right in a democracy to be involved in discussing and trying to influence matters of public concern without having to sacrifice your reputation,” Nadine Strossen, a New York Law School emeritus professor and former president of the American Civil Liberties Union, told me. “That can have a negative impact on the free exchange of ideas and democratic activity.”

The Law for Truth model is not without risk. “We have to keep in mind that whatever tools we create are going to be used by people whose cases are not quite as strong,” Walter Olson, a litigation expert at the Cato Institute, told me. “We need to think about what happens when people put together large financial kitties to sue in the other direction. Think about ten years from now, once it’s been fully accepted to raise money by saying, ‘We’ve got a list of media outlets we can destroy using litigation.’ It will be used to beat up on some small publications or writers who don’t have very good means to defend themselves.”

To avoid this danger, it will be important for initiatives such as Law for Truth to stay within the boundaries of existing defamation law, not stretch those boundaries with novel or expansive claims. “The two women in the Gateway Pundit suit have almost the paradigm of a defamation case,” David French, a writer, lawyer, and Persuasion advisor who formerly led the Foundation for Individual Rights in Education, told me. “The simple fact of the matter is that we do have large-scale, harmful lying that puts Americans, in some cases, in fear for their lives. The law has always had mechanisms for responding to that. The institutionalization of efforts to protect individuals who otherwise might not have resources to defend themselves is an important development.”

Link to the rest at Persuasion

PG has substantial concerns about using defamation suits in the manner described in the OP.

What has been called, “Lawfare”, in the US takes advantage of the fact that courts in many major cities are terribly backlogged with pending cases.

There are a lot of reasons for this that PG will not bore you with, but one of the many unfortunate results of this situation is that taking someone to court, even if your case has substantial merit, is an extraordinarily long and often expensive project.

Experienced defense counsel know how to make the person/organization that filed suit because he/she/they felt substantially wronged spend a great deal of money over the years that it may take the controversy to be heard by a judge or jury on the merits.

Additionally, in large metropolitan courthouses, criminal cases take precedence over civil matters because of guarantees of speedy trials, the great harm that can be caused to an innocent person who is incarcerated without just cause prior to trial, etc. In the many metropolitan court systems in which a given judge handles both criminal and civil cases, the civil cases are, of necessity, bumped down the trial calendar due to a continuing stream of criminal trials that must take precedence.

Regarding the OP, defamation cases can be used by wealthy individuals or by wealthy groups of individuals motivated to attack political enemies to punish the defendant financially even if the case is dismissed by the person who filed it prior to coming close to going to trial.

New York’s library e-book licensing bill vetoed as Maryland challenge looms

From The Bookseller:

The Association of American Publishers (AAP) has welcomed the decision by New York Governor Kathy Hochul to veto a bill that would have forced publishers and authors to grant e-book licences to libraries under state-imposed terms.

New York’s State Assembly legislation was similar to a new law in Maryland which the AAP is currently challenging in court over concerns it will force publishers both in the US and abroad to license e-books to public libraries on “reasonable terms” defined by the state. A hearing on the challenge is set for February.

Vetoing the New York bill, Hochul wrote: “While the goal of this bill is laudable, unfortunately, copyright protection provides the author of a work with the exclusive right to their works. As such, federal law would allow the author, and only the author, to determine to whom they wish to share their work and on what terms. Because the provisions of this bill are pre-empted by federal copyright law, I cannot support this bill.”

The AAP said the New York bill would have contravened the US Copyright Act and pointed out it included penalties for non-compliance, “effectively chilling copyright owners from pursuing the full benefit of their copyright interests and literary properties within the state”. 

Link to the rest at The Bookseller

Penguin Random House Defends Effort to Buy Simon & Schuster

From The New York Times:

Penguin Random House, the largest book publisher in the United States, said in a court filing on Monday that its plan to buy a competitor, Simon & Schuster, would be a boon for the industry, benefiting authors, booksellers and readers.

The Justice Department has disagreed. Last month, it sued to stop the $2.18 billion acquisition, as the Biden administration takes a more skeptical view of corporate consolidation across industries.

In its complaint, the department attacked the deal on the grounds that it would harm best-selling authors, since they could potentially receive lower pay with one fewer publisher competing to acquire their books. It documented several bidding wars between Penguin Random House and Simon & Schuster that went into six and seven figures and argued that if the proposed merger goes through, those authors wouldn’t have received such lucrative advances.

By focusing on authors’ pay, the Justice Department signaled that it is taking a more sweeping view of antitrust law. For decades, it has been used to block deals on the grounds that consumers can be harmed when big companies with few competitors can raise their prices. But in its suit to block Penguin Random House, the government does not claim that the prices for books will rise for readers or for booksellers, but instead argues that if Penguin Random House gets even larger, it will have more leverage over authors.

In the joint response filed on Monday in the United States District Court for the District of Columbia, Penguin Random House and Simon & Schuster said the government’s argument misunderstands the way the publishing industry functions.

. . . .

“The government wants to block the merger under the misguided theory that it will diminish compensation to just the highest-paid authors,” said Daniel Petrocelli, a lawyer representing Penguin Random House and its parent company, Bertelsmann, in an interview on Monday. “That is legally, economically and factually wrong, and it ignores the vast majority of authors who will indisputably benefit from the transaction.”

Penguin Random House is defending its plan in part because it stands to lose millions if it does not go through. Acquisitions like these often come with termination fees that are owed to the prospective seller if the transaction doesn’t close. In this case, Penguin Random House would have to pay Simon & Schuster’s seller, ViacomCBS, about $200 million.

Monday’s filing described the book industry as more than just the “Big Five” that consists of Penguin Random House, Simon & Schuster, HarperCollins, Hachette and Macmillan. There are other major players like Disney, Amazon and Scholastic, along with hundreds of small and midsize publishing houses. On any given deal, Penguin Random House said, “at least one” smaller publisher will often compete, and some of the country’s highest-selling authors, including J.K. Rowling (“Harry Potter”) and Jeff Kinney (“Diary of a Wimpy Kid”), are published by companies outside the big five.

Penguin Random House criticized the government for focusing on the relatively small but influential group of authors who command the highest advances, calling it an “invented market.” Publishers do not “divide the market for book rights into distinct categories based on the author’s compensation,” it said in the response.

“This slender piece of the market does not exist,” Mr. Petrocelli said. “There is no objectively definable market for authors of anticipated top-selling books.”

Many writers outside that group, Penguin Random House said, would stand to make more money as a result of the deal. Authors now published by Simon & Schuster would be brought into the Penguin Random House supply chain, widely considered to be the best in the business, which would make their work more visible and available. The company’s supply chain and distribution network also helps neighborhood bookstores compete with Amazon, the response said.

There is little dispute that the proposed acquisition would reshape publishing, which has been transformed by increasing consolidation over the past decade.

The merger of Penguin and Random House in 2013 helped to accelerate an arms race among other publishers who felt they had to bulk up to compete with the enormous new company. Hachette Book Group has expanded its catalog by buying successful independent publishers, including Perseus Books in 2016 and Workman Publishing this year. HarperCollins has also made acquisitions central to its growth strategy, purchasing the romance publisher Harlequin in 2014, and earlier this year it acquired Houghton Mifflin Harcourt Books and Media, the trade publishing division of Houghton Mifflin Harcourt, for $349 million.

But in its court filing on Monday, Penguin Random House said that since 2013, competition in the industry has grown. More titles are published every year, it said, and more than half of the dollars spent on hardcover and paperback books in the United States now go to publishers outside the big five, a higher percentage than before the 2013 merger.

. . . .

Eleanor Fox, a professor at New York University School of Law who specializes in antitrust and competition policy, said the government’s argument was unusual in that it focused on top author earnings rather than harm to consumers or the market as a whole.

“It’s somewhat unique in this time to focus on the supply market and argue that the suppliers will be exploited,” she said. “They have a much weaker case about consumer pricing.”

Link to the rest at The New York Times (Sorry, but the Times thinks you should pay to visit their website and look at the ads you see there. You can sign up for a limited free subscription, however.)

Inside the Realms of Ruin

From TechCrunch:

“The Ruin stirs, and the Five Realms rumble,” a now-archived web announcement read on Thursday morning. “You are cordially invited to join New York Times bestselling and award-winning authors Marie Lu, Tahereh Mafi, Ransom Riggs, Adam Silvera, David Yoon, and Nicola Yoon in Realms of Ruin, a collaborative fantasy epic filled with dark magic, intrigue, and unique characters — launched online in a thrilling new way.”

These celebrated young adult authors shared the announcement across social media, opening a Twitter, Instagram and Discord server for fans to discuss the buzzy new project that would propel the traditional publishing industry into the new territory of Web3, an evolution of the decentralized internet that emphasizes privacy, data ownership and compensation for work — maybe even fan-made creative works.

As the catalyst for this collaborative fantasy epic, these authors would post 12 initial origin stories about their fictional universe, to which they owned the copyright. Then fans would be tasked with writing their own stories, submitting them to the Realms of Ruin universe by minting them as NFTs on the Solana blockchain. If the authors were to enjoy a fan’s story enough, they could declare it part of the project’s official canon.

Within hours, fans confronted the authors in the Discord server with their concerns about the project. If the authors are inviting fans to write fan fiction about a universe they created, who owns the derivative works? Does minting those stories as NFTs affect the copyright of those stories? And how are these concerns exacerbated given that these authors’ target audience is too young to buy cryptocurrency on platforms like Coinbase and Gemini?

Rebecca Tushnet, the Frank Stanton Professor of First Amendment Law at Harvard Law School, aptly summed up the situation. “It’s a turducken of things people don’t understand,” she said. In other words, on top of the usual NFT concerns, the team would also be facing copyright questions and confronting the historical hesitancy from fan fiction writers over monetization of their works in a commercial environment.

Along with a team of nine developers, the six young adult authors spent two months working nights and weekends to bring Realms of Ruin to life. Within hours of its announcement, the project garnered so much backlash that they pulled the plug.

. . . .

Fan fiction is a tricky, yet fertile ground for legal questions about copyright and ownership.

Sometimes, top fan fiction writers can even parlay their online success into real publishing careers. If a writer can capture the interest of tens of thousands of readers online, it’s not unreasonable to believe that, with original characters and an original story, they could do the same on The New York Times bestsellers list.

One recent example of this phenomenon is Tamsyn Muir’s “Gideon the Ninth,” published in 2019, which The New York Times called “a devastating debut that deserves every ounce of hype it’s received.” But Muir isn’t secretive that she got her start writing fan fiction. Another unabashed proponent of fan fiction is N.K. Jemisin, a MacArthur Foundation “Genius Grant” awardee who is also the only writer to win the prestigious Hugo Award for Best Novel three years in a row. From a revenue standpoint, E.L. James’ “Fifty Shades of Grey” series might be the best example of how a writer can start their career by posting derivative stories online — before the series was an international hit, it was Twilight fan fiction.

But monetizing fan fiction through online platforms is a trickier matter. For example, when Tumblr announced it would roll out Post+, a paid subscription product, the company used fan fiction writers as an example of a content creator who could profit from the product. This caused concern among writers who worried that putting a derivative work behind a paywall could land them in legal trouble.

. . . .

“My main concern was that [the Realms of Ruin project’s creators] were asking their audience to come in and write a bunch of stuff, and they would then select things to be canon in their world. And the tricky part of this is that they already made this world and copyrighted it,” said Manzano. She said it wasn’t clear if the fan fiction writers would be able to do anything more with their work or if they would be acknowledged or compensated for creating it.

TechCrunch’s source close to the project feels differently. Although the six established authors own the Realms of Ruin copyright (at least according to the archived version of the website), writers can be paid to participate in larger publishing projects where they don’t have ownership in the franchise. Over 850 “Star Trek” novels have been published, for example, but that doesn’t mean that those authors own the rights to “Star Trek.”

Harvard Law professor Rebecca Tushnet — who is a member of the legal team at the Organization for Transformative Works, which runs major fan fiction site Archive of Our Own — said that these questions would depend on what the actual contract is between Realms of Ruin and the writers.

“If they’re giving permission, there aren’t copyright infringement questions, there are ownership questions. And those would be navigated by contract. But the thing that you usually expect is that the people writing the fan works might have limited rights,” she told TechCrunch. Because the Realms of Ruin project was shut down before it officially launched, contract details weren’t available.

“The fan fiction part is probably the least interesting part about this,” added Tushnet. “It’s not unknown for authors to say, ‘I want to authorize you to play in my world, and you can even have some of the money.’ Kindle Worlds was an attempt at this, but it ultimately did not seem to be profitable, and Amazon shut it down.”

Fan creators are generally skeptical of projects like Kindle Worlds since they can seem like thinly veiled ways for corporations to profit off of these communities.

Link to the rest at TechCrunch

PG says that just because you can conceive and code something doesn’t make it a good idea.

Any time a person or entity is publishing something another person has written, there’s a legal issue over ownership of the copyright and what rights the copyright owner is granting or not granting to the publisher.

Fan fiction can be a lot of fun to read and write, but if you get your one blockbuster story idea and give it to someone else to publish someplace in cyberspace or meatspace, there are legal issues involving copyright ownership and what rights the author has granted to others. You don’t want anything hazy with respect to rights to something you’ve written. No hand-waving should be involved.

If you write something really good, haziness and hand-waving could quite possibly mean that everybody is giving a lot of their money to lawyers – many digits between the dollar sign and the decimal point. In some sorts of litigation, whoever runs out of money first loses.

Getting it right at the beginning is much, much easier and far, far cheaper.

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.

The Authors Guild Files Amicus Brief in Starz v. MGM Before Ninth Circuit in Supporting the Right to Sue for Damages for Copyright Infringement Beyond Three Year

From The Authors Guild:

In keeping with its mission to advocate for the rights of professional writers to create without interference or threat and to receive fair compensation for that work, including supporting robust copyright laws that recognize and protect the rights of creators, the Authors Guild today filed an amicus brief before the Ninth Circuit Court of Appeals in support of the plaintiff-appellee Starz in Starz Entertainment, LLC v. MGM Domestic Television Distribution, LLC, Ninth Circuit Case No. 21-55379.

Six other creator organizations joined the Authors Guild in the amicus brief: American Society of Media Photographers, Inc., The Dramatists Guild of America, the Graphic Artists Guild, the Romance Writers of America, the Songwriters Guild of America, Inc., and the Textbook & Academic Authors Association. 


The heart of the case relates to the ability of a copyright holder to collect damages for copyright infringement. While copyright holders can bring lawsuits within three years of the time they discovered the infringement – which can be years after the infringement took place – MGM is arguing that copyright holders should only be allowed to collect damages for the three-year period before the suit was brought. Such a rule would deprive copyright holders of any ability to collect damages from infringers when the rightsholder, through no fault of its own, did not become aware of the infringement for at least three years.  That rule is a radical departure from what the U.S. Copyright Act clearly states and would harm artists at a time when they are under increasing financial pressure and when infringement is already widespread and hard to police.

MGM licensed rights to certain films and television shows in its library to third parties even though Starz still held those rights based on an earlier licensing agreement with MGM. MGM claimed that, for some of those infringements, more than three years had elapsed between when the infringements occurred and when Starz discovered them, and therefore Starz was barred from collecting damages. A federal district court in California disagreed and denied MGM’s motion to dismiss, drawing on the “discovery rule,” which “operates as an exception to the general principle that damages are only recoverable for infringing acts within three years prior to filing suit.”  


Starz v. MGM may seem like a dispute between two large companies, but should the appeals court find for the defendant the ramifications would be very damaging for book authors and other individual copyright holders, especially given the huge rise in online piracy,” said Mary Rasenberger, CEO of the Authors Guild, the nation’s oldest and largest nonprofit advocacy organization for published writers with nearly 12,000 members.

“Few writers possess the resources or the ability to patrol the Internet and other spaces for infringement on an ongoing basis. They often aren’t aware that one or more piracy sites have been selling pirated copies of their books illegally for years until someone calls attention to it,” Rasenberger added.

“Imposing a strict three-year limit on damages, therefore, essentially shuts down the ability for many creators to file a lawsuit at all because few writers can afford the legal costs associated with such suits if they can’t seek restitution for book sales and royalty payments lost to piracy or other infringement. Already authors have experienced a 40 percent decline in book incomes in the past decade—categorically precluding blameless artists from collecting damages for infringements occurring more than three years ago only makes earning a living harder.”

Link to the rest at The Authors Guild

Justice Department Sues to Block Penguin Random House’s Acquisition of Simon & Schuster

From The Wall Street Journal:

The Justice Department filed a lawsuit Tuesday that seeks to block Penguin Random House from acquiring rival Simon & Schuster for nearly $2.18 billion, the latest in a series of aggressive antitrust cases brought under the Biden administration.

The department’s complaint, filed in federal court in Washington, D.C., focused not on the prices consumers pay for books, but instead on the competition between publishers to secure rights from authors, especially bestselling ones. The industry paid authors over $1 billion in advances last year.

If the Simon & Schuster deal were permitted, Penguin Random House—already the world’s largest consumer-book publisher as measured by revenue—would hold unprecedented control and outsize influence over which books are published in the U.S. and how much authors are paid, the Justice Department alleged.

“By reducing author pay, this merger would make it harder for authors to earn a living by writing books, which would, in turn, lead to a reduction in the quantity and variety of books published,” the lawsuit alleged.

Attorney General Merrick Garland said the Justice Department’s suit aimed “to ensure fair competition in the U.S. publishing industry” and was part of a broader push to use antitrust enforcement to protect economic opportunity.

Bertelsmann SE, the parent of Penguin Random House, agreed to buy Simon & Schuster from ViacomCBS Inc. last November, a deal that sought to create a publishing behemoth in an industry that has been dominated by five major players, including Simon & Schuster.

The publishers vowed to fight the Justice Department in court and said their deal would improve their efficiency and make titles more widely available for consumers and retailers.

“The publishing industry is, and following this transaction will remain, a vibrant and highly competitive environment,” the publishers said in a joint statement. They said they compete “with many other publishers including large trade publishers, newer entrants like Amazon, and a range of midsize and smaller publishers all capable of competing for future titles from established and emerging authors.”

The deal has faced criticism from writers’ groups, and the lawsuit was quickly welcomed by some authors, including Stephen King, a longtime Simon & Schuster author, who said via email that he was “delighted” by the Justice Department’s merger challenge.

Link to the rest at The Wall Street Journal (Should be a free link, but, if not, PG apologizes for the paywall, but hasn’t figured out a way around it.)

You Are A Writer. You Create And License Intellectual Property Assets.

From The Creative Penn:

Language is powerful.

We choose words carefully in our written works because we understand their impact. They carry a message from one mind to another. They shape ideas. They can change lives.

But writers often use language carelessly when it comes to the business side of being an author, and it shows that many still don’t understand copyright, and how rights licensing can impact your publishing choices, as well as your financial future.

I’ve run across several examples of this recently in discussion with author friends and also online, so I thought it was time for a refresh on intellectual property (IP) — and how important it is to define terms as we move toward Web 3 and a new iteration of what ‘digital’ even means.

You have to understand IP and rights licensing in order to make a living as an author for the long-term, whether you work with an agent or you’re entirely independent.

It might take a little getting used to, but once the penny drops around intellectual property, your language will change and you will have the power to shape your author career in a much more effective — and profitable — way.

Note: I am not a lawyer/attorney and this article is not legal or financial advice.

This article is based on learning about intellectual property from books, courses, and my personal experience publishing independently since 2008. It is a huge topic, so I can only scratch the surface and hopefully, give you something to think about and resources to take your knowledge further.

In this article, I cover: 

  • An overview of intellectual property rights related to written work
  • Original written work = Intellectual property asset
  • Print, Ebook, Audio
  • Other rights licensing opportunities
  • What rights have you licensed? Are you leaving money on the table? Plus, the issues with licensing “digital” rights as we move toward Web 3.
  • More resources — books, courses, podcast interviews

Link to the rest at The Creative Penn

PG says every author should save a copy of the OP for future reference.

Some of the items Ms. Penn discusses will be familiar to regular visitors to TPV, but others may not be.

Here are a couple of excerpts PG fully endorses:


Rights licensing is usually based around: 

  • Format e.g. ebook, paperback, audiobook defined to specific types of each and royalty levels for sale
  • Territory e.g. North America, UK Commonwealth, World
  • Language e.g. German
  • Term e.g. 7 years
  • Specific work (sometimes more than one, and sometimes with an option for other work in the world or under the same author name)

There are also many options for subsidiary rights licensing. Some include: 

  • Adaptations — film, TV, web series, plays/theatre, graphic novel/comic, podcast series, gaming, merchandise, online courses
  • Serial rights, reprints, anthologies 
  • Book clubs
  • Public lending rights, reproduction rights (for example, ALCS in the UK collects these on behalf of authors for library borrowing and photocopies etc.)

Selective rights licensing means you choose to limit the license to whatever the publisher is capable (and likely) of producing. It is very unlikely that a publisher will be able to use all rights in all formats in all territories in all languages.

For example, I license World French electronic, audio, and print for specific non-fiction titles for five years with a first option to renew. 

If you license selectively, you can also independently publish in other formats, territories, and languages. For example, I have now sold ebooks in 168 countries — and that’s just through Kobo.


If you have any form of written content available for someone else to read or purchase or listen to, then you have signed a contract that will include some kind of license. 

What rights have you licensed? Are you leaving money on the table?

If you are traditionally published and someone has paid you for your rights, check your contract to see what you have agreed to.

Many traditionally published authors I talk to will say they don’t know what rights they have signed, which shows they don’t understand how copyright works. If you don’t know what you’ve signed, then you don’t know what else you can do with your body of work. If that’s you, go check your contracts. You might be leaving money on the table.

If you’re an indie author, you sign a contract when you accept the terms and conditions of whichever service you use to publish. So read the Ts&Cs, download a copy, and keep them somewhere as evidence of what you have ‘signed.’

Many of the sites have a non-exclusive contract for a specific format, e.g. Kobo has a non-exclusive right to your ebooks so you can always publish them elsewhere. 

Some sites have exclusive options. For example, if you opt into KDP Select and make your ebooks available on Kindle Unlimited, that is a 90-day exclusive contract for your ebook, so you can’t use any other publishing or distribution service, or sell direct, for the term you enroll. That doesn’t stop you from licensing your audio or print rights, it just limits your ebook options. . . .

Some sites have terms and conditions that are being questioned by authors and author organizations, for example, check out #audiblegate and the investigation into Audible’s contracts. 


Here are a few points PG will emphasize/add to Ms. Penn’s very good post.

  1. Read the Contract – Yes, PG knows that it’s not great fun to read any sort of contract (he has read thousands so he speaks from experience), but read it anyway.
    1. If you receive an electronic version of the contract, print it out.
    2. Then go through the printout or a copy of the paper original like you were grading an essay and looking for evidence of cheating.
    3. Go through it paragraph by paragraph.
    4. Pay attention to the sentence structure. (Really!)
    5. Underline things you don’t understand.
    6. Write notes about your concerns in the margins.
    7. Pay particular attention to defined terms.
      1. Defined terms may be included in a separate section of the contract. PG has seen some contracts that seemed perfectly reasonable until he hit the “Definitions” section in paragraph 36.A.(1) where all hell broke loose.
      2. Here’s an example of a defined term clause, “As used herein, “publish” shall mean . . . .” As mentioned in the prior subparagraph, the “As used herein” piece may be found in an entirely different location in a 30-page contract than the place which talks about publishing your book.
      3. Here’s another example of a defined term, “Blah, blah, blah, blah, blah, blah (“Publish“)”
  2. Read the Damned Contract! PG knows that when you were two years old, you pitched a fit whenever your mother tried to feed you peas and she finally gave up. But you’re an adult now and you have learned to do hard things, like reading a publishing contract or a Terms & Conditions clause on Amazon’s or somebody else’s website.
  3. Ask Questons: If you don’t understand something you read even after you have diagrammed the sentence, ask what it means.
    1. You can even do it with a Terms & Conditions clause online.
    2. Contact the online help people. If they can’t answer the question, ask them who can and contact that person.
    3. If you can’t get a good response via the Help link, do a bit of searching on the website or online. You’re looking for the Legal Department or Corporate Counsel. If the website is owned by another company, look on that company’s website.
    4. If corporate counsel has an email address, send them an email. If they have a mailing address, also send them a paper letter that says the same thing.
    5. Here’s an example of an email/letter you might consider sending:
      1. “Dear ______________: or Dear Corporate Counsel: I was reviewing your Terms and Conditions and in Paragraph 15 (A), I found the term, “publish” but I could not find a definition of this term anywhere in the Terms and Conditions. I believe “publish” is an ambiguous term and I am confused. In the Merriam-Webster’s Dictionary (2019 edition), “publish” is defined as “blah, blah, blah” but in the New Oxford American Dictionary (2021 edition), “publish” is defined as “blah1, blah1, blah1.” As you can clearly see, the two definitions are not identical and, I believe, do not define the term, “publish” in the same way. My particular concern is whether the term, “Publish” as your company uses it includes or does not include blah, blah, blah. Could you please clarify. I started a discussion group concerning this question on Reddit and have received a variety of different opinions, including some by people who say they are attorneys, but you can never tell if someone is telling the truth or not online. One of the people who responded said he was a law student and was going to raise my question in his intellectual property class to see what the professor and other students think about your company’s definition.”
    6. PG just did a Google search for “legal department” on Amazon’s U.S. site and found this link (https://www.amazon.com/gp/help/customer/display.html?nodeId=GLSBYFE9MGKKQXXM)
    7. At the link he found the following in Amazon’s Conditions of Use:

OUR ADDRESS

Amazon.com, Inc.
P.O. Box 81226
Seattle, WA 98108-1226

And a little farther down, he found this:

HOW TO SERVE A SUBPOENA OR OTHER LEGAL PROCESS

Amazon accepts service of subpoenas or other legal process only through Amazon’s national registered agent, Corporation Service Company (CSC). Subpoenas or other legal process may be served by sending them to CSC at the following address:

Amazon.com, Inc.
Corporation Service Company
300 Deschutes Way SW, Suite 208 MC-CSC1
Tumwater, WA 98501
Attn: Legal Department – Legal Process

And farther down he found this:

NOTICE AND PROCEDURE FOR MAKING CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT

If you believe that your intellectual property rights have been infringed, please submit your complaint using our online form. This form may be used to report all types of intellectual property claims including, but not limited to, copyright, trademark, and patent claims.

We respond quickly to the concerns of rights owners about any alleged infringement, and we terminate repeat infringers in appropriate circumstances.

We offer the following alternative to our online form for copyright complaints only. You may submit written claims of copyright infringement to our Copyright Agent at:

Copyright Agent
Amazon.com Legal Department
P.O. Box 81226
Seattle, WA 98108
phone: (206) 266-4064
e-mail: copyright@amazon.com

Courier address:
Copyright Agent
Amazon.com Legal Department
2021 7th Avenue
Seattle, WA 98121

PG advises keeping a copy of your email and the online contract as it existe when you reviewed it in an electronic file on your computer. Insert the date in the copied documents in addition to the date your computer assigns to the file.

Electronic copies will allow you to compare different versions of the Terms and Conditions over time to see whether any changes were made as a result of your email.

PG gave up the practice some time ago, but he used to keep copies of various Terms of Use on different sites to track how they changed over time. Document comparison software makes the job very easy.

PG would be surprised if most online sites would fail to respond to an email such as he described. Potential ambiguity in a contract should raise a red flag with any competent attorney.

If a provision is ambiguous or subject to two different interpretations and a lawsuit follows, a judge will decide what the provision really means. As a very general proposition, a genuine ambiguity in a written contract means the judge will be more likely to interpret the ambiguity against the party that drafted the contract, particularly if, like Terms and Conditions used by online companies, the contract is a take-it-or-leave-it proposition.

If you don’t receive a response to your letter and email asking about the meaning of the terms and conditions, you could follow up with an email noting that you haven’t received a response.

If you don’t receive an answer to your question at this point, go ahead and post the T’s & C’s and your questions about them to several relevant online discussion forums and see what happens. Remember squeaky wheels and grease.

It’s clear that PG has gone on way too long about this topic and needs to do something useful. He will leave with one final admonition:

Read the Contract!

Feckless heirs in the spotlight

From LinkedIn:

A great article in today’s Australian on the dangers of adult children waiting around for an ‘automatic’ inheritance given a number of recent judgements in this area.

A fundamental right here in Australia is the right of testamentary freedom – the right to leave your worldly goods to who you want when you die. However, that right is tempered by societal obligations and social norms, which means if you don’t leave proper provision for your family, they can challenge your Will to get proper provision.

This sort of challenge is known as Family Provision claim, and the law exists to stop people making capricious or mean spirited Wills that are designed to disinherit someone who should properly be provided for.

However, for too long the law has been used by people to make claims where they don’t have any real need or where the Will was not capricious or deliberately mean – and many of those claims are by adult children.

The importance of the case in this article is that Justice Pembroke is making it clear that he, at least, has had enough of those sorts of claims – and that the Will of a parent should not automatically be upended just because an adult child is not provided for.

Link to the rest at LinkedIn