Sentenced to Law School

PG acknowledges that this this is not the usual discussion fodder he posts about.

For those unfamiliar, The ABA Journal is the monthly magazine published by The American Bar Association. The ABA is the largest voluntary bar association in the United States.

In order to practice law in the United States, a person must be a member of a state bar association. That’s a mandatory bar association that typically requires a graduate from an accredited law school to pass a bar exam. The difficulty of the exam varies from state to state. California has typically had the most difficult bar exam with a typical pass rate of around 50%.

So, the ABA doesn’t include a lot of blue collar lawyers. Back when he was a blue collar lawyer, PG was a member of the ABA because they usually paid his way to attend the Annual Meeting. The reason the ABA paid was because PG would present a continuing legal education program which a lot of lawyers liked in the legal world of long ago. PG also wrote a monthly column for The ABA Journal about computers and lawyers.

Why was PG in demand to be a presenter? He understood how to use computers in a law office at a time when a very small percentage of lawyers knew how to operate a computer, let alone had one in their office. They paid secretaries or paralegals to do that sort of thing for them. Needless to say, that generation of lawyers are long gone to that big bar meeting in the sky.

From the ABA Journal:

Based on federal sentencing guidelines, people found guilty of trafficking large amounts of cocaine usually face lengthy sentences. However, a Texas defendant received what many say is an unusual punishment: five days in prison with credit for time served and direction from the judge to complete her JD.

Chelsea Nichole Madill was accused of trafficking 28.5 kilos of cocaine in a 2018 criminal complaint. She was charged in the U.S. District Court for the Southern District of Texas, and in 2019, Madill pleaded guilty to possession with intent to distribute a Schedule II drug.

Federal sentencing experts say the average penalty for that crime is around five years. In addition to the law school piece and no prison time, Madill was sentenced to three years of supervised release. The 2023 sentencing judgment was written by Southern District of Texas Chief Judge Randy Crane.

Much of the record is sealed, and whether Madill attended or completed law school is not disclosed. There is someone with that name listed as a 2L Florida A&M University College of Law student bar association board member. A 2019 order authorized travel expenses for Madill, directing the U.S. marshal to obtain the cheapest means of noncustodial transportation possible between her Florida residence and the McAllen, Texas, courthouse.

“The court would suggest that the least expensive means would be via bus and not by airplane,” the judge wrote.

Madill did not respond to an ABA Journal interview request sent through LinkedIn, and her phone number listed in court records was disconnected. FAMU Law also did not respond to ABA Journal interview requests.

She could have had what is known as “the girlfriend problem,” says Douglas A. Berman, an Ohio State University Moritz College of Law professor. The term refers to long sentences for women who may not be actively involved in “serious drug dealing” but participate in trafficking to preserve a relationship with a boyfriend or husband, Berman says.

“Maybe the judge thought requiring pursuit of a law degree would reduce the likelihood she’d get involved with the wrong folks,” says Berman, who writes the Sentencing Law and Policy blog.

He adds that rehabilitation should be a goal in sentencing.

“The threat of serious confinement often gets people behaving well. She may have been extra motivated to be the best version of herself while this was pending,” Berman says.

Or it could have been the judge ensuring Madill would keep her word.

“Given the sparseness of the record, my first instinct was, the judge doesn’t want to be snookered by the argument of ‘I’m going to go to law school, so give me a break’ if she’s not going to see it through,” Berman says.

Jesse Salazar, the assistant U.S. attorney assigned to the case, referred an ABA Journal interview request to a public affairs officer. The PAO said the office did not object to the sentence.

https://www.abajournal.com/web/article/order-directs-defendant-to-finish-law-school-could-that-be-a-good-bar-admission-defense

Defamation of a Public Figure vs. Private Figure Explained

From Minc Law:

The difficulty of proving your defamation case, and if you even have a valid claim at all, may depend on if the court considers you a public figure or a private figure.

In the context of defamation, a public figure is generally defined as an individual who has assumed a role of prominence in society or voluntarily or involuntarily thrust themselves into the public spotlight, like a government official, a celebrity, or even a person at the heart of a controversy. Public figures have a higher burden of proof when bringing a defamation claim; they must show that the defendant acted with actual malice or reckless disregard for the truth when publishing a false statement.

A private figure, on the other hand, is generally defined as anyone who does not qualify as a public figure and is not in the public spotlight. Private figures must only prove that the defendant acted with ordinary negligence when publishing a false statement.

. . . .

Who Are Public Figures in the Defamation Arena?

The distinction between public figures and private individuals matters in defamation law because it changes the burden of proof in bringing a lawsuit.

To succeed in a defamation lawsuit, the plaintiff must show that the statement was untrue and harmful to their reputation. On top of these factors, a public figure must also demonstrate that the defamer made the statement with malice (or malicious intent to harm them).

Definition of Public Figures in Defamation Law

In legal terms, a public figure is an individual who is at the forefront of public issues or performs a prominent role in society. Those with a certain amount of fame or renown can also be considered public figures. For example, the following people would be considered public figures in a defamation law case:

  • Government officials and politicians,
  • Prominent business leaders,
  • Celebrities, and
  • Famous sports figures and athletes.

. . . .

Most U.S. states take the idea of public figures one step further by expanding the public figure classifications into three types: public officials, all-purpose public figures, and limited-purpose public figures.

Public Officials

Public officials are not just elected officials or politicians. They include any individual whose role has a major influence over government and societal events, as well as those who work for elected representatives. 

However, not every government official would be considered a public figure in a defamation case. The difference is generally in how prominent and influential the individual is in their role. For example, while an elected prosecutor may be considered a public official, an administrative assistant in the prosecutor’s office may not be.

What is the Difference Between All-Purpose Public Figures & Limited-Purpose Public Figures?

Aside from public officials, other public figures are split into two categories: all-purpose and limited-purpose. An all-purpose public figure has achieved “pervasive fame or notoriety,” like a traditional celebrity.

On the other hand, a limited-purpose public figure is injected into “a particular public controversy and thereby becomes a public figure for a limited range of issues.

A limited-purpose public figure can be voluntarily or involuntarily drawn into the public eye. Examples of voluntary limited-purpose public figures include minor athletes or actors, social activists, or those who enter into the public debate about a controversial topic. An involuntary limited-purpose public figure did not choose to become involved in a controversy or important event.

In the significant court case of Dameron vs. Washington Magazine, the plaintiff Merle Dameron was the sole air traffic controller on duty the day of a plane crash near Dulles airport in 1974. While he was never found at fault for the crash, local magazine The Washingtonian issued claims that he was partly to blame for the passengers’ deaths.

The court found that while Dameron did not “inject” himself into the public debate, he did become involved in this public affair without his consent. He was, therefore, considered a limited-purpose public figure. 

This case established a three-part framework for determining whether an individual is a limited-purpose public figure:

  • There is a public controversy,
  • The plaintiff played a central role in the controversy, and
  • The defamation was pertinent to the plaintiff’s involvement in the controversy.

What Are Some Examples of Public Figures?

The following list gives real-world examples of public officials, all-purpose public figures, and limited-purpose public figures:

  • President Joe Biden (public official);
  • First Lady Dr. Jill Biden (all-purpose public figure);
  • Chris Evans, a well-known actor (all-purpose public figure);
  • Jeff Bezos, billionaire and CEO of Amazon (all-purpose public figure);
  • LeBron James, NBA all-star (all-purpose public figure);
  • Minor-league baseball player with limited name recognition (limited-purpose public figure);
  • A previously unknown activist who generates news at a Black Lives Matter protest (limited-purpose public figure).

Why Are Public Figures Considered to Have Significant Ability to Counteract Defamation?

It is not necessarily true that public figures are considered to have a significant ability to counteract defamation—at least in the legal sense. The legal standard is tougher for public figures to counteract defamation because our society values free speech, uninhibited debate, and public information about those of pervasive influence.

For example, if John Smith publishes a blog post falsely claiming his neighbor was convicted of armed robbery 10 years ago, the neighbor will likely win a defamation case against him. But if John makes the same claims about his senator, it would be much more difficult for the senator to win a case. John simply needs to show that he had a “good faith belief” in the negative claim (meaning he acted with negligence, not actual malice).

Courts usually hold that public figures do not need as much reputational protection because they have placed themselves in the spotlight and must expect some level of negative attention. Public figures tend to have a greater ability to use the media or an online platform to counteract a narrative about them.

Because public figures usually have a larger social media following and better access to the media than private citizens, they have other means of making the truth known without involving the courts. For example, a celebrity who is the subject of false rumors can give an interview with a magazine, discuss the truth on a talk show or podcast, or post their side of the story on social media.

What Are the Requirements For Proving Defamation of a Public Figure?

In all defamation cases for both public and private persons, the plaintiff must prove that a statement was:

  • A false statement of fact (i.e., not an opinion) about the plaintiff,
  • Communicated to a third party,
  • Made with at least a negligent level of intent, and
  • Harmful to the plaintiff’s reputation.

For public figures, there is an additional requirement to bring a defamation claim. They must prove that the defamer acted with actual malice. In other words, the defamer knew that the statement was false—or they acted with reckless disregard for whether the statement was true or false. 

This requirement can be broken down even further for public officials, all-purpose public figures, and limited-purpose public figures.

Public Officials’ Burden of Proof

Public officials must demonstrate that the defamer acted with actual malice for both public and private matters. Regardless of if the defamatory statement referred to the official’s private life or public record, they must have acted with actual malice or reckless disregard.

All-Purpose Public Figures’ Burden of Proof

Similarly, the actual malice standard for all-purpose public figures applies to nearly all facets of their lives.

Limited-Purpose Public Figures’ Burden of Proof

For limited-purpose public figures, however, the standard of actual malice only applies to the area(s) that make the individual a public figure.

For example, a minor-league athlete falsely accused of doping would need to prove actual malice—but not if the defamatory statement pertains to his private life instead.

. . . .

What is a Private Figure in the Context of Defamation?

Public figures are those in the public spotlight, whether due to their occupation, celebrity, or participation in a controversy or public conversation. But the existence of public figures necessitates private figuresIn this section, we define a private figure and how they should prove their case in a defamation lawsuit.

Definition of a Private Figure in Terms of Defamation Law

A private figure is not in the public eye. Unlike public figures, they have not been drawn into a public controversy—whether voluntarily or involuntarily—and they are not a public official or a celebrity.

What Are Some Examples Of Private Figures?

Listed below are a few general examples of individuals that would be considered private figures in a defamation case:

  • A high school principal. 
  • A private guardian accused of sleeping with a client’s father. 
  • A local news reporter who left their job at a local television station. 
  • A company that does not advertise extensively. 

How Must Private Individuals Prove Defamation?

Since private figures have not entered the public spotlight through their career or role in a public controversy, the law aims to protect their privacy. Private individuals, therefore, have a less strict burden of proof in a defamation matter.

A private figure plaintiff must only prove that the defendant acted with ordinary negligence—not actual malice or reckless disregard. “Ordinary negligence” means the defendant did not act with the caution an ordinary person would take in a similar situation.

However, some states still require private figures to show actual malice if they expect to recover punitive damages in a defamation claim.

How Should a Claim Show Fault on the Part of the Defamer?

Though the specific standard can vary from state to state, the plaintiff must prove the core elements of defamation to succeed in a claim:

  • An unprivileged, false statement of fact was made about the plaintiff,
  • It was communicated to a third party,
  • It was made with at least a negligent level of intent, and
  • It damaged the plaintiff’s reputation.

What is Negligence in Terms of Defamation Law?

A defendant may be found negligent if a reasonable person would take the time to research the truth of the statement before publishing it. If they did not act with the reasonable prudence an ordinary person would take in a similar situation, they acted with at least a negligent level of intent.

Link to the rest at Minc Law

PG notes that there are lots of links to additional materials, definitions, cases, etc., in the OP that PG, as is his usual practice, omitted.

With respect to the adjacent post regarding former President Trump filing a defamation suit against Simon & Schuster and a former prosecutor who is the author of the book Trump claims is defamatory, PG notes that Mr. Trump is on the highest perch of public figurehood.

That said, PG has no knowledge of the suit other than the OP and is in no position to comment on the merits of the suit.

He does hope the author of the offending book was intelligent to change the standard New York publishing contract to provide that the publisher would pay all of the author’s legal fees and court costs if Trump sued the author (with or without suing the publisher).

In the standard New York publishing boilerplate, in the event of a defamation suit against the publisher (the author is almost always named as a defendant as well) the author will not only be responsible for her/his own legal fees, but is also obligated to pay the publisher’s legal fees and damages assessed against the publisher as well.

PG expects that in the Trump suit, Simon & Schuster will employ excellent and expensive litigation counsel. PG is not as familiar with New York City litigation costs as he used to be, but he would be very surprised if S&S’s legal fees for handling this matter would total less than seven figures. High seven figures is a possibility that crossed PG’s mind.

As far as insurance to cover legal expenses of a publisher, PG is doubtful that any sane insurance company would agree to cover this sort of risk. But he could be wrong.

Trump Threatens to Sue Former Prosecutor, S&S over Forthcoming Tell-All

From Publisher’s Weekly:

Embattled former president Donald Trump is threatening to sue publisher Simon & Schuster and author and former New York criminal prosecutor Mark Pomerantz over the forthcoming publication of People vs. Donald Trump: An Inside Account.

According to S&S press materials, Pomerantz, who investigated Donald Trump and the Trump Organization, purports to explain in his book why Trump should be prosecuted for financial crimes—and why he believes that prosecution hasn’t yet happened. Pomerantz resigned last February, reportedly after Manhattan DA Alvin Bragg was said to have put the brakes on an imminent criminal prosecution of the former president.

But in a letter this week, shared with PW, Trump attorney Joe Tacopina warns Pomerantz and S&S officials against publishing a book that repeats allegedly “false” and “defamatory” statements.

“I strongly admonish you to take these next words seriously: If you publish such a book and continue making defamatory statements against my client, my office will aggressively pursue all legal remedies against you and your book publisher, Simon & Schuster,” Tacopina writes. “Trust me, I will zealously use every possible legal resource to punish you and your publisher for the incredible financial harm that you have caused my clients to suffer.”

In a statement issued late Monday evening, Pomerantz dismissed Trump’s threat to sue.

“If the former president should sue me, I will defend that litigation,” Pomerantz said, in a statement issued through S&S. “I stand by the statements I have made previously, and those contained in my forthcoming book.”

The threat marks the latest attempt by Trump to stop publication of a book that criticizes him—which so far have only served to sell books. In 2018, while president, Trump attorneys sent a cease-and-desist letter to publisher Henry Holt and author Michael Wolff over his book of Fire and Fury: Inside the Trump White House. The media attention propelled the book to the top of the bestseller list.

More recently, Trump unsuccessfully sued Simon & Schuster and his niece, author Mary Trump, in New York state court seeking to block publication of her memoir Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man. The book would go on to sell more than a million copies.

Link to the rest at Publisher’s Weekly

Imitation Is The Best Form Of Flattery. Flattery Is Not A Defense To Copyright Infringement.

From Above the Law:

Unless you’ve been living under a law library, it would be hard to not take note of the rapid influx of AI art. Face modifying apps, extended shots of events and people that never happened that uncanny only begins to explain their weirdness, you name it. The figure of AI as artist has arrived, but is any of it legal? A small group of artists aim to find out. From Reuters:

A group of visual artists has sued artificial intelligence companies for copyright infringement, adding to a fast-emerging line of intellectual property disputes over AI-generated work.

Stability AI’s Stable Diffusion software copies billions of copyrighted images to enable Midjourney and DeviantArt’s AI to create images in those artists’ styles without permission, according to the proposed class-action lawsuit filed Friday in San Francisco federal court.

The artists’ lawyers, the Joseph Saveri Law Firm and Matthew Butterick, filed a separate proposed class action lawsuit in November against Microsoft’s GitHub Inc and its business partner OpenAI Inc for allegedly scraping copyrighted source code without permission to train AI systems.

. . . .

I’m gonna flag it for you in case your eyes glossed over it. The word there is billions. Billons. With a B. Even if the individual damages are pennies on the dollar, the aggregate of those alleged copyright infringements would be… well, I’m not that good at math, but it would put a sizeable dent in my student loan principal.

. . . .

For those not in the know, if you’ve ever seen a stock image, every one you’ve seen is probably from Getty.

Link to the rest at Above the Law

Getty Images is suing the creators of AI art tool Stable Diffusion for scraping its content

From The Verge:

Getty Images is suing Stability AI, creators of popular AI art tool Stable Diffusion, over alleged copyright violation.

In a press statement shared with The Verge, the stock photo company said it believes that Stability AI “unlawfully copied and processed millions of images protected by copyright” to train its software and that Getty Images has “commenced legal proceedings in the High Court of Justice in London” against the firm.

Getty Images CEO Craig Peters told The Verge in an interview that the company has issued Stability AI with a “letter before action” — a formal notification of impending litigation in the UK. (The company did not say whether legal proceedings would take place in the US, too.)

“The driver of that [letter] is Stability AI’s use of intellectual property of others — absent permission or consideration — to build a commercial offering of their own financial benefit,” said Peters. “We don’t believe this specific deployment of Stability’s commercial offering is covered by fair dealing in the UK or fair use in the US. The company made no outreach to Getty Images to utilize our or our contributors’ material so we’re taking an action to protect our and our contributors’ intellectual property rights.”

When contacted by The Verge, a press representative for Stability AI, Angela Pontarolo, said the “Stability AI team has not received information about this lawsuit, so we cannot comment.”

The lawsuit marks an escalation in the developing legal battle between AI firms and content creators for credit, profit, and the future direction of the creative industries. AI art tools like Stable Diffusion rely on human-created images for training data, which companies scrape from the web, often without their creators’ knowledge or consent. AI firms claim this practice is covered by laws like the US fair use doctrine, but many rights holders disagree and say it constitutes copyright violation. Legal experts are divided on the issue but agree that such questions will have to be decided for certain in the courts. (This past weekend, a trio of artists launched the first major lawsuit against AI firms, including Stability AI itself.)

Getty Images CEO Peters compares the current legal landscape in the generative AI scene to the early days of digital music, where companies like Napster offered popular but illegal services before new deals were struck with license holders like music labels.

“We think similarly these generative models need to address the intellectual property rights of others, that’s the crux of it,” said Peters. “And we’re taking this action to get clarity.” 

Although the creators of some AI image tools (like OpenAI) refuse to disclose the data used to create their models, Stable Diffusion’s training dataset is open source. An independent analysis of the dataset found that Getty Images and other stock image sites constitute a large portion of its contents, and evidence of Getty Images’ presence can be seen in the AI software’s tendency to recreate the company’s watermark.

Although companies like Stability AI deny any legal or ethical hazard in creating their systems, they have still begun making concessions to content creators. Stability AI says artists will be able to opt-out of the next version of Stable Diffusion, for example. In a recent tweet about the company’s training datasets, Stability AI CEO Emad Mostaque said “I believe they are ethically, morally and legally sourced and used,” before adding: “Some folks disagree so we are doing opt out and alternate datasets/models that are fully cc.”

The full details of Getty Images’ lawsuit have not yet been made public, but Peters said that charges include copyright violation and violation of the site’s terms of service (in particular, web scraping). Andres Guadamuz, an academic specializing in AI and intellectual property law at the UK’s University of Sussex, told The Verge it seemed like the case would have “more merit” than other existing AI lawsuits, but that “the devil will be in the details.”

Link to the rest at The Verge

PG’s understanding is that AI art generators don’t keep any copies of the images they use. His understanding is that an image is quickly analyzed and a mathematical hash is created.

If PG’s understanding is correct, Stability AI used an Open Source dataset and, perhaps, kept a copy of the original photos/artwork on its servers afterwards.

If this is the case, PG thinks it was stupidity on the part of management at Stability AI to keep a copy after creating hashes from it. While he thinks it would still qualify as fair use under US patent law, keeping a literal copy of the photos after processing them strengthens Getty’s case.

Getty is suing in the UK because Stability AI is located there, so PG’s comments, based on his understanding of US copyright laws may not cover differences between UK and US laws governing this matter. He will note that both the UK and US have entered into the two major international copyright agreements – The Universal Copyright Convention (UCC), adopted in Geneva, Switzerland, in 1952, and The Berne Convention for the Protection of Literary and Artistic Works (Berne), in 1882.

Getty is also aggressive in suing for improper use of photos in their collection, even if the photos are in the public domain and, thus, not protected by copyright. See here for one relatively recent example. And here for another take on the same facts.

PG is going to be following this lawsuit as it progresses and would welcome hearing from visitors to TPV if they find any interesting pieces discussing the dispute – Contact PG at the top of TPV will let you send him an email.

The Tudor Roots of Modern Billionaires’ Philanthropy

From Smithsonian Magazine:

More than 230 of the world’s wealthiest people, including Elon Musk, Bill Gates and Warren Buffett, have promised to give at least half of their fortunes to charity within their lifetimes or in their wills by signing the Giving Pledge. Some of the most affluent, including Jeff Bezos (who hadn’t signed the Giving Pledge as of early 2023) and his ex-wife MacKenzie Scott (who did sign the pledge after their divorce in 2019) have declared that they will go further by giving most of their fortunes to charity before they die.

This movement stands in contrast to practices of many of the philanthropists of the late 19th and early 20th centuries. Industrial titans like oil baron John D. Rockefeller, automotive entrepreneur Henry Ford and steel magnate Andrew Carnegie established massive foundations that to this day have big pots of money at their disposal despite decades of charitable grantmaking. This kind of control over funds after death is usually illegal because of a “you can’t take it with you” legal doctrine that originated in England 500 years ago.

Known as the Rule Against Perpetuities, it holds that control over property must cease within 21 years of a death. But there is a loophole in that rule for money given to charities, which theoretically can flow forever. Without it, many of the largest American and British foundations would have closed their doors after disbursing all their funds long ago.

As a lawyer and researcher who studies nonprofit law and history, I wondered why American donors get to give from the grave.

Henry VIII had his eye on property

In a recent working paper that I wrote with my colleague Angela Eikenberry and Kenya Love, a graduate student, we explained that this debate goes back to the court of Tudor monarch Henry VIII.

The Rule Against Perpetuities developed in response to political upheaval in the 1530s. The old feudal law made it almost impossible for most properties to be sold, foreclosed upon or have their ownership changed in any way.

At the time, a small number of people and the Catholic Church controlled most of the wealth in England. Henry wanted to end this practice because it was difficult to tax property that never transferred, and property owners were mostly unaccountable to England’s monarchy. This encouraged fraud and led to a consolidation of wealth that threatened the king’s power.

As he sought to sever England’s ties to the Catholic Church, Henry had one eye on changing religious doctrine so he could divorce his first wife, Catherine of Aragon, and the other on all the property that would become available when he booted out the church.

After splitting with the church and securing his divorce, he enacted a new property system giving the British monarchy more power over wealth. Henry then used that power to seize property. Most of the property the king took first belonged to the church, but all property interests were more vulnerable under the new law.

Henry’s power grab angered the wealthy gentry, who launched a violent uprising known as the Pilgrimage of Grace.

After quelling that upheaval, Henry compromised by allowing the transfer of property from one generation to the next. But he didn’t let people tell others how to use their property after they died. The courts later developed the Rule Against Perpetuities to allow people to transfer property to their children when they turned 21 years old.

At the same time, wealthy Englishmen were encouraged to give large sums of money and property to help the poor. Some of these funds had strings attached for longer than the 21 years.

Elizabeth I codified the rule

Elizabeth I, Henry’s daughter with his ill-fated wife Anne Boleyn, became queen in 1558, after the deaths of her siblings Edward VI and Mary I. She used her reign to codify that previously informal charitable exception. By then it was the 1590s, a tough time for England, due to two wars, a pandemic, inflation and famine. Elizabeth needed to prevent unrest without raising taxes even further than she already had.

Elizabeth’s solution was a new law decreed in 1601. Known as the Statute of Charitable Uses, it encouraged the wealthy to make big charitable donations and gave courts the power to enforce the terms of the gifts.

The monarchy believed that partnering with charities would ease the burdens of the state to aid the poor.

This concept remains popular today, especially among conservatives in the United States and United Kingdom.

Link to the rest at Smithsonian Magazine

PG says the Rule Against Perpetuities provides fertile ground for law school examinations.

It also forms a basis for a great many colorful hypothetical question.

He will limit himself to one: The Fertile Octogenarian:

From Wikipedia:

The fertile octogenarian is a fictitious character that comes up when applying the rule against perpetuities. The rule presumes that anyone, even an octogenarian (i.e., someone between 80 and 90 years of age) can parent a child, regardless of sex or health. For instance, suppose that a will devises a piece of land known as Blackacre “to A for her life, and then to the first of A’s children to reach 25 years of age.” A is, at the time the will is probated, an 85-year-old woman. In applying the rule against perpetuities, an imaginative lawyer will argue (and a court must accept under the common law rule itself) that A could have a child in her 86th year and then in her 87th year all of A’s other children could die, then in her 88th year A herself could die. Because the interest will not vest until her new child reaches 25 years of age, which cannot happen until more than 21 years after A and her other children (together who form the “lives in being” to which the rule refers) have all died, the rule against perpetuities makes the entire gift “to the first of A’s children to reach 25 years of age” void. A will hold Blackacre for life, and then the property will revert to the person whose will transferred it to A in the first place. (Actually, it will go to that person’s estate, since the will was probated only after his death.)

While it is true that there is often no statutory maximum age limit to perform an adoption, and adopted children are often treated the same as natural children, so an 86-year-old woman who adopts a newborn child is legally in the same position as an 86-year-old woman who gives birth, the fertile octogenarian rule predates the laws allowing legal adoption.

The legal fiction of the fertile octogenarian assumes that a living person, regardless of sex, age, or physical condition, will always be capable of having more children, thus allowing an interest to vest 21 years after all the lives in being at the time of the grant are dead. Couples have been known to marry in their late eighties.

In certain places this assumption will be limited to a fixed age set by statute. Furthermore, many jurisdictions have discarded old common-law fictions such as the “fertile octogenarian.”

Link to the rest at Wikipedia

PG will note that Blackacre is a term he has only heard in law school classrooms.

“Controlled Digital Lending”: Could Canadian Universities Find Themselves Out on a Limb?

From Hugh Stephens Blog:

In my year end blog post looking back at significant developments for copyright and creators in 2022 and looking forward to topics that will be at the top of the agenda in 2023, I identified questions over the legality of a contrived and unproven concept, so-called “Controlled Digital Lending” (CDL), as one of the big issues likely to be clarified this year.

Back in June 2020, four major publishers (Hachette Book Group, HarperCollins Publishers, John Wiley & Sons and Penguin Random House), all members of the American Association of Publishers (AAP) filed suit against the Internet Archive for “Systematic Mass Scanning and Distribution of Literary Works”. The Internet Archive (IA), an organization that brands itself as “a non-profit library of millions of free books, movies, software, music, websites, and more”, provides a number of services including archiving the internet through its “Wayback Machine”, archiving television programs and audio recordings, and digitizing documents and books, both those in the public domain and others still protected by copyright.  Although registered as a US non-profit, it was founded and still led by Brewster Kahle, a multimillionaire entrepreneur and digital “guru”.

The publishers’ lawsuit was provoked by the IA’s decision to create a self-described “National Emergency Library” in March 2020, during the peak of the COVID pandemic. The Emergency Library expanded the untested theory of Controlled Digital Lending (CDL), championed by the Archive, by eliminating even the pretence of limits on the numbers of digital copies of books that could be borrowed, in effect eliminating all wait times. As I noted in an earlier blog post (“Are Authors the Enemies of Authors and Publishers?”), COVID was the pretext used by the Archive for pushing the envelope on CDL. Under the IA’s interpretation of CDL, a digital scan of a book can be substituted for the original work by a lending library as long as the library holds the requisite number of physical copies. As is the case with legitimate lending of licensed e-books, there is no need for the borrower to physically collect the work; it is all done digitally including terminating the loan once the book is due.

The issue of scanning a book without authorization in order to provide a substitutable digital version is clearly at odds with the law, especially when it comes to US case law which has been very clear and consistent on this point. As authors and publishers point out, it is a form of copying that destroys the licensing market for e-books. Despite this obvious fact, this has not stopped advocates, like the Internet Archive, from claiming that the practice is somehow fair use under US law. Until COVID hit, the Archive purported to follow what it characterized as normal lending rules by allowing only as many digital copies into circulation as it physically held in its inventory, with a digital copy having to be “returned” before a new copy could be loaned out. However, in reality it exercised no actual controls, simply asserting that it was following the correct “own to loan” ratio. Then, with the arrival of COVID, the Archive dropped all pretence of controls and announced that it was suspending the normal practice of maintaining a wait list and would allow unlimited digital copies to go into circulation.

While a few initially misguidedly lauded the Archive for taking measures to assist consumers who were self-isolating because of the pandemic, it didn’t take long for authors and publishers to push back, pointing out that this unilateral move was a case of giving away someone else’s property without consultation or permission. Although the possibility of litigation had been simmering for some time, the IA’s declaration of the “National Emergency Library” was the precipitating event leading to the filing of suit by the publishers. The IA then ended the Emergency Library program prematurely and Kahle appealed to the publishers to settle the dispute in the boardroom rather than the courtroom. The hypocrisy of this appeal was not lost on authors and publishers who had been trying for years to engage the Archive in meaningful discussions. Both sides moved for summary judgment, and those motions are currently pending in front of the judge.

Link to the rest at Hugh Stephens Blog and thanks to R. and others for the tip.

PG recalls this type of “controlled digital lending” theory having appeared in various guises on past occasions.

As the OP suggests, it won’t work.

Fundamental copyright law requires the author’s approval before anyone can make a copy of the author’s creation, be it words or paintings or anything else.

When a library purchases a physical book and lends it to someone, the library has entrusted its copy to one of its patrons. If the patron doesn’t return the book or loses it or if the patron’s dog eats the book, if the library wishes to allow other patrons to borrow the book, the library’s only legal option is to purchase another physical book from the author or publisher or locate a helpful friend of the library who has purchased a copy of the book and ask if the helpful friend will donate her/his/their physical copy of the book to the library.

Every digital lending scheme PG has examined involves making a copy of the book each time someone wishes to read it. If the library scans one of its physical books, it’s making a copy without permission. It doesn’t matter whether the library destroys the physical book after scanning it. The library has still made a copy.

If a library acquires an ebook, absent permission from the owner of the ebook’s copyright, the library can’t make a digital loan to a patron via an electronic copy while still maintaining a copy of the ebook on the library’s computer system or anywhere else.

Just because electronic copying is very simple to do and happens trillions of times per day on computers around the world doesn’t mean that making an electronic copy of a bunch of organized electrons that are protected by copyright law is not a violation of copyright law.

Please note that that the copyright law includes an exclusion for Fair Use of the copyrighted material. Fair Use does not constitute a violation of copyright law.

Here’s a reasonable general definition of Fair Use from The Stanford Libraries:

In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an infringement.

Of course, as with all laws, Fair Use contains more than a few gray areas. However, making a complete copy of a creative work and lending, selling, etc., the copy to one or more others is not protected under the Fair Use exception to general copyright law.

(Personal note – PG believes all of his excerpts of copyright-protected material in TPV constitute fair use. He asks himself if that is the case for at least one or more items he posts each week. His judgement has been questioned on only one occasion, many years ago, but the questioner stopped complaining after PG sent his analysis of fair use for the challenged post.)

Parody under copyright and trade mark law: key guidance from Zorro .. and the Italian Supreme Court

From IPKat:

Last week, the Italian Supreme Court issued an important – if not truly seminal – judgment on the interplay between IP and freedom of expression (decision 38165/2022, CO.GE.DI. International – Compagnia Generale Distribuzione s.p.a. v Zorro Productions Inc.).

. . . .

Back in 2007, US company Zorro Productions sued CO.GE.DI. over a TV and radio advertisement which the latter had commissioned on behalf of bottled water brand Brio Blu. Said advertisement featured actor Max Tortora dressed up as popular character Zorro.

Zorro Productions claimed that it owned copyright and several trade marks over the character of Zorro and that the advertisement inter alia infringed its rights under both regimes.

Further to a victory for Zorro Productions at first instance, the Court of Appeal of Rome sided with CO.GE.DI., holding that the character of Zorro had fallen in the public domain.

In 2017, the Italian Supreme Court rendered a first judgment, holding that Zorro would be still protected by copyright, as the 70-year post mortem auctoris term available under Italian law should also apply to foreign (in this case: American) authors. The Supreme Court thus sent the case back to the Court of Appeal for a new assessment.

In 2018, the Court of Appeal ruled that Zorro is a protected fictional character and its alleged parody in the advertisement would be prohibited given that:

  • Italy did not expressly transpose Article 5(3)(k) when it implemented the InfoSoc Directive into its legal system; and
  • A parody requires in any case a creative re-elaboration of an earlier work.

In all this, the Court of Appeal held that no trade mark infringement had occurred, since the reference to Zorro had been done without any “distinctive intent” (intento distintivo), that is: the use of the sign had not been undertaken as a trade mark.

At this point, a further appeal to the Italian Supreme Court could not but follow.

Parody under copyright

Insofar as the copyright status of Zorro is concerned, the Supreme Court noted that – under Italian law – the very protectability of characters under copyright is a settled (pacifica) issue: both courts and scholars agree that protection is available irrespective of the copyright status of the works in which they appear.

Turning to parody, the reasoning of the Supreme Court is enlightening and can be summarized as follows:

  • A parody does not need to be a creative re-elaboration of an existing work since – by its very nature – it implies an “unavoidable parasitic character” (ineliminabile carattere di parassitismo). A parody is a work that is autonomous from the earlier one because it is characterized by a different spirit, something that the court referred to as a “conceptual overthrow” (rovesciamento concettuale).
  • It follows that a parody is not a derivative work like, e.g., a translation: holding otherwise is not only wrong as per the above, but is also contrary to freedom of expression and freedom of artistic expression, as enshrined in – respectively – Articles 21 and 33 of the Italian Constitution.
  • It is true that Italy did not specifically transpose Article 5(3)(k) of the InfoSoc Directive, but the reason of all that is that the Italian legal system already allowed what is covered by that provision.
  • More specifically, a parody is a type of quotation for purposes of criticism or review, in accordance with Article 70(1) of the Italian Copyright Act. The right to criticize and review can be exercised in different ways, including by means of a parody.
  • Article 5(3)(k) of the InfoSoc Directive is consistent with this interpretation, and the CJEU Deckmyn decision [Katposts here] demonstrates that. The fair balance mandate that the CJEU refers to is the “limitation which the parodic exploitation of a third-party work or character is subject to” (limite cui soggiace lo sfruttamento parodistico dell’opera o del personaggio altrui), also considering that the CJEU has repeatedly held that the protection of IP under Article 17(2) of the EU Charter is not absolute.
  • The three-step test is part of the fair balance mandate: the circumstance that a parody is made for profit does not rule out the very applicability of Article 70(1): what matters is not that circumstance, but rather whether the alleged parody unduly conflicts with the normal exploitation of the earlier work.

In light of all that precedes, the Supreme Court concluded that the Court of Appeal had erred in its assessment of parody under copyright, by envisaging requirements that are not to be found in the law. Hence, a new assessment will need to be conducted to determine if the advertisement at issue would satisfy the conditions above.

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

There are lots of links in the OP if you are interested in a deeper dive.

PG and Mrs. PG truly love Italy and have enjoyed more than one trip there. The landscapes, the ancient buildings, the art, the people – the PG’s are Italophiles through and through despite neither of them having having inherited a drop of Italian blood from any of their ancestors.

That said, the OP confirms for PG that he never wants to practice Italian law or be a party in an Italian lawsuit.

PRH CEO Markus Dohle Stepping Down, End of Year

From Publishing Perspectives:

Emphasizing that the news from Gütersloh and New York City arrives “on the best of mutual terms,” Germany’s Bertelsmann has announced today (December 9) that Markus Dohle is stepping down as worldwide CEO of Penguin Random House and as a member of Bertelsmann’s executive board. It’s being made clear that this is Dohle’s decision and that Bertelsmann regrets it.

The news will surprise many in world publishing. Dohle, 54, has come to be seen as perhaps the industry’s most energetic and expressive public advocate in the executive ranks. He refers to this himself today, referring to his “enthusiasm and passion.”

NPD Books’ Kristen McLean, familiar for her analysis to our Publishing Perspectives readers, confirms to Elizabeth A. Harris and Alexandra Alter at The New York Times that this is hardly a convenient moment for Dohle to feel he must make this move. “There are unknowns at every level,” McLean says. “There are unknowns with consumer behavior, unknowns with what retailers are doing, and unknowns at the publisher level about what to invest in right now.”

Dohle’s role in the leadership of the largest trade publishing company–”a community of 325 imprints,” as he calls it, spanning many countries–has given his messages immediate attention. He has taken this seriously. He’s an outsized and welcoming personality, big enough to embrace the sheer expanse of PRH. He has leveraged his position as a bully pulpit to project an upbeat, boisterous can-do tone during some of contemporary publishing’s most sophisticated challenges.

Dohle was appointed the first CEO to lead the world’s largest trade book publishing company on July 1, 2013, when the publishing group was founded. He had become CEO of Random House in 2008.

Nihar Malaviya, currently a PRH vice-president and director of strategy and operations, is to become interim CEO at the start of the new year.

. . . .

Dohle has been outspoken about the crucial need for the freedom to publish and about book publishing’s place in the world’s democratic order, particularly in the current era of authoritarian dynamics. Demonstrating the kind of personal commitment to his work that’s one of his trademarks, he personally seeded the US$500,000 Dohle Book Defense Fund with PEN America in February amid myriad book-banning attempts in the States and in other world markets.

In October 2021, Dohle had opened Frankfurter Buchmesse’s new Frankfurt Studio facility in a live hour-long conversation with Publishing Perspectives. During our discussion, he talked about the profound value he sees in immersive, long-form reading.

“It helps you to actually see the world from other points of view,” he said, “and we know it creates empathy and human values, especially in young people. That’s what the world needs right now if we want to help defend our democracy, based on human values.”

. . . .

Professional industry attendees at this year’s 12th Sharjah Publishers Conference in the United Arab Emirates could see clearly Dohle’s bitter disappointment on November 1, the morning after Judge Florence Yu Pan’s order was made public.

Dohle, going through with a scheduled appearance at the conference, told Bodour Al Qasimi, president of the International Publishers Association‘s (IPA) onstage, that the court’s decision was “utterly wrong.” If the S&S acquisition had not been blocked by the Biden administration’s Justice Department, “Readers would have benefited from this merger because we sell our books through more retailers than anybody else in 20,000 retail locations in the US, 160,000 retail locations globally.

“Authors would have been benefiting because of more royalties, because of more sales, and their agents [would benefit], of course, too,” he said. “And ultimately, because of our synergies, we would have paid more taxes, so the taxpayer would have been benefiting. So it was good for our constituencies. And, by the way, we’ve lost some market share. So Simon & Schuster is basically refilling lost market share for us. And after the merger, we would have been less than 20 percent of the United States’ trade [book publishing] market, less than 20 percent—while Amazon is 50 percent of the retail side.”

“I am biased,” Dohle said onstage, “and I’m very disappointed.”

Link to the rest at Publishing Perspectives

PG says there is definitely a story behind this story.

Too much happy talk is the principal reason for PG’s suspicions.

As PG has opined before, he can’t imagine that PRH outside counsel having not waved a big red flag, telling their client that the acquisition would attract a great deal of antitrust attention and a legal challenge would be likely.

From Wikipedia:

Hubris (/ˈhjuːbrɪs/; from Ancient Greek ὕβρις (húbris) ‘pride, insolence, outrage’), or less frequently hybris (/ˈhaɪbrɪs/),describes a personality quality of extreme or excessive pride or dangerous overconfidence, often in combination with (or synonymous with) arrogance. The term arrogance comes from the Latin adrogare, meaning “to feel that one has a right to demand certain attitudes and behaviors from other people”. To arrogate means “to claim or seize without justification… To make undue claims to having”, or “to claim or seize without right… to ascribe or attribute without reason”. The term pretension is also associated with the term hubris, but is not synonymous with it.

According to studies, hubris, arrogance, and pretension are related to the need for victory (even if it does not always mean winning) instead of reconciliation, which “friendly” groups might promote. Hubris is usually perceived as a characteristic of an individual rather than a group, although the group the offender belongs to may suffer collateral consequences from wrongful acts. Hubris often indicates a loss of contact with reality and an overestimation of one’s own competence, accomplishments, or capabilities. The adjectival form of the noun hubris/hybris is hubristic/hybristic.

The term hubris originated in Ancient Greek, where it had several different meanings depending on the context. In legal usage, it meant assault or sexual crimes and theft of public property, and in religious usage it meant transgression against a god.

. . . .

In its modern usage, hubris denotes overconfident pride combined with arrogance. Hubris is often associated with a lack of humility. Sometimes a person’s hubris is also associated with ignorance. The accusation of hubris often implies that suffering or punishment will follow, similar to the occasional pairing of hubris and nemesis in Greek mythology. The proverb “pride goeth (goes) before destruction, a haughty spirit before a fall” (from the biblical Book of Proverbs, 16:18) is thought to sum up the modern use of hubris. Hubris is also referred to as “pride that blinds” because it often causes a committer of hubris to act in foolish ways that belie common sense. In other words, the modern definition may be thought of as, “that pride that goes just before the fall.” (annotations in the original omitted)

Link to the rest at Wikipedia

This artist is dominating AI-generated art. And he’s not happy about it.

From MIT Technology Review:

Those cool AI-generated images you’ve seen across the internet? There’s a good chance they are based on the works of Greg Rutkowski.

Rutkowski is a Polish digital artist who uses classical painting styles to create dreamy fantasy landscapes. He has made illustrations for games such as Sony’s Horizon Forbidden West, Ubisoft’s Anno, Dungeons & Dragons, and Magic: The Gathering. And he’s become a sudden hit in the new world of text-to-image AI generation.

His distinctive style is now one of the most commonly used prompts in the new open-source AI art generator Stable Diffusion, which was launched late last month. The tool, along with other popular image-generation AI models, allows anyone to create impressive images based on text prompts.

For example, type in “Wizard with sword and a glowing orb of magic fire fights a fierce dragon Greg Rutkowski,” and the system will produce something that looks not a million miles away from works in Rutkowski’s style.

But these open-source programs are built by scraping images from the internet, often without permission and proper attribution to artists. As a result, they are raising tricky questions about ethics and copyright. And artists like Rutkowski have had enough.

According to the website Lexica, which tracks over 10 million images and prompts generated by Stable Diffusion, Rutkowski’s name has been used as a prompt around 93,000 times. Some of the world’s most famous artists, such as Michelangelo, Pablo Picasso, and Leonardo da Vinci, brought up around 2,000 prompts each or less. Rutkowski’s name also features as a prompt thousands of times in the Discord of another text-to-image generator, Midjourney.

Rutkowski was initially surprised but thought it might be a good way to reach new audiences. Then he tried searching for his name to see if a piece he had worked on had been published. The online search brought back work that had his name attached to it but wasn’t his.

“It’s been just a month. What about in a year? I probably won’t be able to find my work out there because [the internet] will be flooded with AI art,” Rutkowski says. “That’s concerning.”

Stability.AI, the company that built Stable Diffusion, trained the model on the LAION-5B data set, which was compiled by the German nonprofit LAION. LAION put the data set together and narrowed it down by filtering out watermarked images and those that were not aesthetic, such as images of logos, says Andy Baio, a technologist and writer who downloaded and analyzed some of Stable Diffusion’s data. Baio analyzed 12 million of the 600 million images used to train the model and found that a large chunk of them come from third-party websites such as Pinterest and art shopping sites such as Fine Art America.

Many of Rutkowski’s artworks have been scraped from ArtStation, a website where lots of artists upload their online portfolios. His popularity as an AI prompt stems from a number of reasons.

First, his fantastical and ethereal style looks very cool. He is also prolific, and many of his illustrations are available online in high enough quality, so there are plenty of examples to choose from. An early text-to-image generator called Disco Diffusion offered Rutkowski as an example prompt.

Rutkowski has also added alt text in English when uploading his work online. These descriptions of the images are useful for people with visual impairments who use screen reader software, and they help search engines rank the images as well. This also makes them easy to scrape, and the AI model knows which images are relevant to prompts.

. . . .

Other artists besides Rutkowski have been surprised by the apparent popularity of their work in text-to-image generators—and some are now fighting back. Karla Ortiz, an illustrator based in San Francisco who found her work in Stable Diffusion’s data set, has been raising awareness about the issues around AI art and copyright.

Artists say they risk losing income as people start using AI-generated images based on copyrighted material for commercial purposes. But it’s also a lot more personal, Ortiz says, arguing that because art is so closely linked to a person, it could raise data protection and privacy problems.

“There is a coalition growing within artist industries to figure out how to tackle or mitigate this,” says Ortiz. The group is in its early days of mobilization, which could involve pushing for new policies or regulation.

Link to the rest at MIT Technology Review and thanks to R. for the tip in the comments.

PG predicts there will be more than one copyright infringement suit filed against various individuals, institutions and companies providing AI services in which an artist’s copyrighted work was used to seed the AI.

In the United States, such suits will almost certainly be filed in the federal court system since copyright is governed by federal law. Some states have laws that would seem to give exclusive rights to publish state documents to the state or those to whom the state has given permission to make and sell copies of state documents, but trying to protect a creative work from republication under anything other than pursuant to federal copyright laws and decisions is generally regarded as a fool’s errand.

One thing that judges do when faced with a novel question is to draw from similar situations that have occurred previously.

As one crude example, if an individual uses a computer and a software program created by third parties to make an exact copy of of the text of a copyright-protected book, the manufacturer of the computer or the company that created and sold the word processing program used to make a copy of the book will not be liable for copyright infringement because they only provided tools and the author used the tools in the manner the author chose.

AI art programs require a prompt to create anything images. The OP mentions the use of an artists name in an AI prompt as one way of generating an image.

However, that decision is not made by the creators/owners of the AI program, but rather by the user. The creators of the AI program ran a huge number of images by an an enormous number of artists through the program’s processor. Is it a violation of copyright law to link an artist’s name to a painting the artist created? PG doesn’t think so.

As a matter of fact, using Mr. Rutkowski’s work without attribution would also be an offense against the creator.

PG doesn’t see the creation of works “inspired by” an artist constituting copyright infringement when they aren’t copies of what the artist created or closely resembling what an artist created. PG doesn’t believe that an artistic style is protected by copyright.

If PG’s understanding of the way AI art programs work is to deconstruct the original copy of the image into its component parts and assign some sort of marker to the parts such that a prompt for a large building in the style of the British Museum won’t generate an image dominated by a dragon.

PG just created a prompt, “Windsor Castle sailing on the ocean” and ran it through an AI art generator. Here’s what he got.

Next, PG modified his prompt to read “Windsor Castle sailing on the ocean Greg Rutkowski” and this is what he got:

For one last experiment PG created another prompt with a different artist, “Windsor Castle sailing on the ocean Andy Warhol” and here’s what showed up.

PG is not an art expert, but he doesn’t think any of his AI illustrations will put either Mr. Rutkowski or Mr. Warhol out of business.

DeviantArt upsets artists with its new AI art generator, DreamUp

From Ars Technica:

On Friday, the online art community DeviantArt announced DreamUp, an AI-powered text-to-image generator service powered by Stable Diffusion. Simultaneously, DeviantArt launched an initiative that ostensibly lets artists opt out of AI image training but also made everyone’s art opt in by default, which angered many members.

DreamUp creates novel AI-generated art based on text prompts. Due to its Stable Diffusion roots, DreamUp learned how to generate images by analyzing hundreds of millions of images scraped off sites like DeviantArt and collected into LAION datasets without artists’ permission, a potential irony that some DeviantArt members find problematic.

As we’ve reported frequently on Ars in the past, Stable Diffusion’s web-scraping nature ignited a huge debate earlier this year among artists that challenge the ethics of AI-generated artwork. Some art communities have taken hard stances against any AI-generated images, banning them completely.

Perhaps anticipating a backlash, DeviantArt is making overtures to pacify artists who might be upset about their work being used to train AI image generators. The site is providing a special “noai” flag that artists can check in their image settings to opt out of third-party image datasets. (Whether third-party image scrapers will honor this flag, however, remains to be seen.)

. . . .

Also, DeviantArt will let artists opt out of letting their images train DreamUp in the future, but each artist must fill out a form that requires human review first. This policy has led to significant pushback among DeviantArt members, some of whom have threatened to delete all of their work and deactivate their accounts.

DeviantArt’s DreamUp information page also takes a defensive tone, stating that DeviantArt did not consent to third-party AI image models (such as Stable Diffusion) that scraped their site to make their models work. And further down the page, the site attempts to debunk common misconceptions about how AI image synthesis works.

Link to the rest at Ars Technica

For those not familiar with DeviantArt, it’s an artists’ social network. It’s also a place for those who might might want to commission an artist to produce something like a cover design for a fantasy or science fiction novel.

PG’s understanding is that a great many artists who create images with computers/tablets+computers, etc., show some of their work in order to attract visitors to their websites. Of course, everything an artist puts up on Deviant Art is a digital image.

Based on the Ars Technica article, it sounds like DeviantArt really screwed up the launch of its AI Art tool.

Of course, standard legal advice is that a creator should read all contracts, terms and conditions, terms of use, terms of service, etc., prior to uploading any creation to a website or other online destination.

One of the things a creator may find in the T’s&C’s is a provision that says the site owner can change the T’s&C’s at any time without notifying the creator in advance.

Here are a few sample provisions from Facebook’s Privacy Policy which is referenced in Facebook’s Terms of Service for your edification and enjoyment:

On our Products, you can send messages, take photos and videos, buy or sell things and much more. We call all of the things you can do on our Products “activity.” We collect your activity across our Products and information you provide, such as:

  • Content you create, like posts, comments or audio
  • Content you provide through our camera feature or your camera roll settings, or through our voice-enabled features. Learn more about what we collect from these features, and how we use information from the camera for masks, filters, avatars and effects.
  • Messages you send and receive, including their content, subject to applicable law. We can’t see the content of end-to-end encrypted messages unless users report them to us for review. Learn more.
  • Metadata about content and messages, subject to applicable law
  • Types of content you view or interact with, and how you interact with it
  • Apps and features you use, and what actions you take in them. See examples.
  • Purchases or other transactions you make, including credit card information. Learn more.
  • Hashtags you use
  • The time, frequency and duration of your activities on our Products

Information with special protections

You might choose to provide information about your religious views, political views, who you are “interested in” (which could reveal your sexual orientation) or your health in your Facebook profile fields or life events. This and other information (such as racial or ethnic origin, philosophical beliefs or trade union membership) could have special protections under the laws of your country.

(PG Note: You have to click to a separate page to continue reading the Terms of Service)

(The Facebook Docs continue.)

Friends, followers and other connections

Information we collect about your friends, followers and other connections

We collect information about friends, followers, groups, accounts, Facebook Pages and other users and communities you’re connected to and interact with. This includes how you interact with them across our Products and which ones you interact with the most.

Information we collect about contacts

We also collect your contacts’ information, such as their name and email address or phone number, if you choose to upload or import it from a device, like by syncing an address book.

If you don’t use Meta Products, or use them without an account, your information might still be collected. Learn more about how Meta uses contact information uploaded by account holders.

App, browser and device information

We collect and receive information from and about the different devices you use and how you use them.

Device information we collect and receive includes:

  • The device and software you’re using, and other device characteristics. See examples.
  • What you’re doing on your device, like whether our app is in the foreground or if your mouse is moving (which can help tell humans from bots)
  • Identifiers that tell your device apart from other users’, including Family Device IDs. See examples.
  • Signals from your device. See examples.
  • Information you’ve shared with us through device settings, like GPS location, camera access, photos and related metadata
  • Information about the network you connect your device to, including your IP address. See more examples.
  • Information about our Products’ performance on your device. Learn more.
  • Information from cookies and similar technologies.

Learn how to upload and delete contacts on Facebook and Messenger, or how to connect your device’s contact list on Instagram.

Information we collect or infer about you based on others’ activity

We collect information about you based on others’ activity. See some examples.

We also infer things about you based on others’ activity. For example:

  • We may suggest a friend to you through Facebook’s People You May Know feature if you both appear on a contact list that someone uploads.
  • We take into account whether your friends belong to a group when we suggest you join it.

Information from Partners, vendors and third parties

What kinds of information do we collect or receive?

We collect and receive information from Partners, measurement vendors and third parties about a variety of your information and activities on and off our Products.

Here are some examples of information we receive about you:

  • Your device information
  • Websites you visit and cookie data, like through Social Plugins or the Meta Pixel
  • Apps you use
  • Games you play
  • Purchases and transactions you make
  • Your demographics, like your education level
  • The ads you see and how you interact with them
  • How you use our Partners’ products and services, online or in person

Partners also share information like your email address, cookies and advertising device ID with us. This helps us match your activities with your account, if you have one.

We receive this information whether or not you’re logged in or have an account on our Products. Learn more about how we connect information from Partners to your account.

Partners also share with us their communications with you if they instruct us to provide services to their business, like helping them manage their communications. To learn how a business processes or shares your information, read their privacy policy or contact them directly.

Off-Facebook activity

How do we collect or receive this information from partners?

Partners use our Business Tools, integrations and Meta Audience Network technologies to share information with us.

These Partners collect your information when you visit their site or app or use their services, or through other businesses or organizations they work with. We require Partners to have the right to collect, use and share your information before giving it to us.

Lawyer PG notes all the links to other places sprinkled through Facebook’s TOS. Each of the links includes yet more information that is part of the TOS. While PG didn’t click and read what was to be found in each of the links in the Mother TOS, PG will note that the links can include information and definitions that changes the meanings Mother TOS substantially.

PG doesn’t know whether Facebook’s Terms of Service as a whole are great, sorta-great, somewhere-in-the-middle, sorta terrible or terrible because he swore off of Facebook a long time ago. He has more than one Facebook account that contains information that has nothing to do with PG-in-the-flesh if he finds out about something Facebook is doing that may be of interest to PG or visitors to TPV.

PG hasn’t read Deviant Arts’ TOU, TOS, etc., but these are some of the concerns that artists who use Deviant Arts as a marketing platform are likely thinking about at the moment.

This reminds PG that he hasn’t taken a look at KDP’s Terms of Use for awhile. He thinks he has copies of such documents from some earlier exploration of them, so he may check out the latest and see what Zon’s lawyers have altered, likely as a result of some disaster, minor or major, that transpired under an earlier TOU.

This will take PG awhile to finish, so don’t hold your breath waiting for it.

Can U.S. Supreme Court Justices Publish Books and Receive Advances/Royalties?

An interesting question was asked in the comments to PG’s previous post about Penguin Random House publishing a book by Associate Supreme Court Justice Amy Coney Barrett.

Specifically, the question was whether such a commercial arrangement violated what is commonly known as The Emoluments Clause in the Constitution of the United States. Here’s how that clause reads:

Article I  Legislative Branch

  • Clause 8 Titles of Nobility and Foreign Emoluments
  • No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

From Constitution Annotated:

Article I, Section 9, Clause 8:

This provision encompasses two distinct commands. The first half, sometimes called the federal Title of Nobility Clause,1 limits the power of the United States by prohibiting it from granting any title of Nobility. The second half, often referred to as the Foreign Emoluments Clause, limits the actions of certain federal officers by prohibiting them from accepting any present, Emolument, Office, or Title, of any kind whatever from a foreign state, without the consent of Congress.

For most of their history, neither the Title of Nobility Clause nor the Foreign Emoluments Clause have been much discussed or substantively examined by the courts. The meaning and scope of the Foreign Emoluments Clause have been examined in opinions from the Department of Justice’s Office of Legal Counsel and the Comptroller General of the United States concerning the obligations of federal officers with respect to gifts, salaries, awards, and other potential emoluments from foreign sources. During the administration of President Donald Trump, the lower federal courts for the first time issued substantive—but often conflicting—decisions interpreting the Foreign Emoluments Clause.

. . . .

The Foreign Emoluments Clause’s basic purpose is to prevent corruption and limit foreign influence on federal officers. At the Constitutional Convention, Charles Pinckney of South Carolina introduced the language that became the Foreign Emoluments Clause based on the necessity of preserving foreign Ministers & other officers of the U.S. independent of external influence.1 The Convention approved the Clause unanimously without noted debate.

During the ratification debates, Edmund Randolph of Virginia, a key figure at the Convention, explained that the Foreign Emoluments Clause was intended to prevent corruption by prohibit[ing] any one in office from receiving or holding any emoluments from foreign states.

The Foreign Emoluments Clause reflected the Framers’ experience with the then-customary European practice of giving gifts to foreign diplomats.

Following the example of the Dutch Republic, which prohibited its ministers from receiving foreign gifts in 1651, the Articles of Confederation provided: any person holding any office of profit or trust under the United States, or any of them shall not accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state. The Foreign Emoluments Clause largely tracks this language from the Articles, although there are some differences.

During the Articles period, American diplomats struggled with how to balance their legal obligations and desire to avoid the appearance of corruption, against prevailing European norms and the diplomats’ wish to not offend their host country.

A well-known example from this period, which appears to have influenced the Framers of the Emoluments Clause, involved the King of France’s gift of an opulent snuff box to Benjamin Franklin. Concerned that receipt of this gift would be perceived as corrupting and violate the Articles of Confederation, Franklin sought (and received) congressional approval to keep the gift.

Following this precedent, the Foreign Emoluments Clause prohibits federal officers from accepting foreign presents, offices, titles, or emoluments, unless Congress consents.

The Foreign Emoluments Clause thus provides a role for Congress in determining the propriety of foreign emoluments. Under this authority, Congress has in the past provided consent to the receipt of particular presents, emoluments, and decorations through public or private bills, or by enacting general rules governing the receipt of gifts by federal officers from foreign governments. For example, in 1966, Congress enacted the Foreign Gifts and Decorations Act, which provided general congressional consent for foreign gifts of minimal value, as well as conditional authorization for acceptance of gifts on behalf of the United States in some cases.

Several Presidents in the nineteenth century—such as Andrew Jackson, Martin Van Buren, John Tyler, and Benjamin Harrison—notified Congress of foreign presents they received, and either placed the gifts at Congress’s disposal or obtained consent for their acceptance. Other nineteenth century Presidents treated presents they received as gifts to the United States, rather than as personal gifts. Thus, in one instance, President Lincoln accepted a foreign gift on behalf of the United States and then deposited it with the Department of State. In the twentieth century, some Presidents sought the advice of the Department of Justice’s Office of Legal Counsel on whether acceptance of particular honors or benefits would violate the Emoluments Clauses.

Link to the rest at Constitution Annotated

Here’s what SCOTUSBLOG says on the topic with respect to Supreme Court Justices writing books for publication:

In December 1833, the American Monthly Review commented on a newly published book by Joseph Story. By that time the fifty-four-year-old Supreme Court Justice had written or edited some twelve books. These works included a treatise on bills of exchange, a treatise on pleading, yet another on pleading and assumpsit, commentaries on the law of bailments, a biography, and even a book of poetry titled The Power of Solitude: A Poem in Two Parts. And he had a new work, a three-volume set with a long title: Commentaries on the Constitution of the United States; With a Preliminary Review of the Constitutional History of the Colonies and States, Before the Adoption of the Constitution. Of this book, the American Monthly reviewer wrote:

[T]he work is a rare union of patience, brilliancy, and acuteness, and . . . [contains] all the learning on the Constitution brought down to the latest period, so as to be invaluable to the lawyer, statesman, politician, and in fine, to every citizen who aims to have a knowledge of the great Charter under which he lives.

That review was among the first of many such laudatory reviews of a treatise that went on to become canonical in the history of American constitutional law. Before he died in 1845, Joseph Story published another twenty-one books after his Commentaries.

Story’s literary accomplishments notwithstanding, he was not the most prolific – that honor goes to Justice William O. Douglas. This son of a Scottish Presbyterian minister, and former law professor and SEC chairman, wrote fifty-one books on a wide variety of topics ranging from foreign policy to psychiatry, from corporate reorganization to environmentalism, and from stare decisis to manifest destiny.

If nothing else, Douglas was prolific. In 1958 alone, five works were published under his name, and then in 1960 and 1961 he published four different books for each of those respective years.

And then there was Justice Joseph Story, who had thirty-three books under his byline, followed by William Howard Taft, the onetime President and later Chief Justice, who published some thirty-one books.

Link to the rest at SCOTUSBLOG

PG suggests that the precedent set by Justices Joseph Story, William O. Douglas and William Howard Taft likely covers any legal or ethical issues that might apply to Justice Amy Coney Barrett when she agrees with a commercial publisher to publish a book and receive the sorts of compensation that famous people and celebrities who are not Supreme Court Justices receive.

Penguin Random House Blocked From Acquiring Rival Publisher Simon & Schuster

From The Wall Street Journal:

A federal judge on Monday blocked Penguin Random House from acquiring rival book publisher Simon & Schuster for about $2.18 billion, agreeing with the Justice Department that the planned merger would unlawfully lessen competition.

U.S. District Judge Florence Pan accepted the Justice Department’s arguments that some writers would likely be harmed if Penguin Random House, the world’s largest consumer-book publisher, was allowed to acquire another of the five largest book publishers in the U.S.

“The Court finds that the United States has shown that the effect of the proposed merger may be substantially to lessen competition in the market for the U.S. publishing rights to anticipated top-selling books,” Judge Pan wrote in a two-page order.

The ruling, which follows an August trial in Washington, D.C., provided a long-awaited court victory for Biden-era antitrust enforcers who had lost a series of recent cases after pledging to take a more aggressive approach against corporate deal making, especially in industries that have become more consolidated.

The losses, including in the healthcare and agriculture industries, had served as a reminder that much of the administration’s antitrust agenda is dependent on persuading the federal judiciary. Justice Department officials were looking to the publishing case as a chance to build fresh, favorable court precedent.

. . . .

Assistant Attorney General Jonathan Kanter, the Justice Department’s top antitrust official, said the publishing merger would have decreased author compensation and “diminished the breadth, depth and diversity of our stories and ideas.”

Link to the rest at The Wall Street Journal

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.