The First Amendment And Copyright Law: Can’t We All Just Get Along?

From Above the Law:

There’s been a lot of debate about the First Amendment recently. For example, should there be an exception to the First Amendment for hate speech? Some discussions have revolved around potential conflicts between various amendments. What is the relationship between the First Amendment and the Equal Protection Clause of the Fourteenth? What is the relationship between the First and Second Amendments? These are all issues that have been discussed and debated recently, but what about the First Amendment and copyright law?

The First Amendment, of course, protects our right to freedom of speech and expression. The First Amendment clearly states that “Congress shall make no law… abridging the freedom of speech, or of the press.”

Copyright, which is also grounded in the Constitution, gives the rightholder an exclusive legal right over his work, allowing him to restrict access to it, prevent others from using or reproducing it. If this were all there was to copyright law, a rightholder could certainly use his exclusive rights to block criticism and discussion, stifling free speech. Without proper safeguards, copyright law could conflict with the right to freedom of speech by giving the rightholder censorship rights.

For example, a blogger on gender equity might try to make a point about the portrayal of women in audiovisual media. Without the ability to use a clip from a film or music video, the writer would be less effective in illustrating her point. Without quoting dialogue or lyrics, we would just have to take the blogger’s word for it that a particular genre, movie or song is misogynistic.

Imagine what would happen if exclusive rights to copyright protection actually did conflict with, and trumped, the right to freedom of speech? Would journalists effectively be able to report on political speeches without fear of an infringement lawsuit? As my criminal law professor said on a daily basis, words have meaning. Paraphrasing and summarizing what someone has said may not adequately get the point across. Exactly what did President Trump say about the violence in Charlottesville? The phrase “on many sides” was plastered across news headlines for days

. . . .

Ultimately, there are fewer tensions between the copyright law and the First Amendment than one might think, particularly when we look to the purpose of both. While copyright gives the rightholder a “limited time” monopoly, the purpose of the intellectual property system, grounded in the Constitution, is “to promote the progress of science and useful arts.” Thus, its purpose — even as it grants monopoly rights — is to benefit the public.

The goals of the First Amendment are not as clearly laid out within the text itself, but have been the subject of extensive discussion. Of course, one goal is to protect our democracy by allowing an exchange of ideas through unconstrained speech. Access to a range of opinions and views helps inform policy positions of government officials and voters deciding for whom they should cast their ballots, as well as ideally enabling the search for truth. Access to information and freedom of expression not only protects democratic ideals, but is also essential to art and culture.

Ultimately, copyright and freedom of speech promote the same goals, seeking to further the public interest through creation and dissemination of speech, expression, and works. Indeed, the Supreme Court confirmed in Twentieth Century Music v. Aiken,

The immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.

When we see that they serve the same purpose, albeit through different means, we can seek to resolve any potential tensions by looking to see whether that purpose is being served.

While copyright provides an author exclusive rights and could be used as a censorship tool, it also includes a number of limitations and exceptions, the most significant one being fair use. The fair use doctrine has a long common law history, with the first United States case decided in favor of the user in 1841. Eventually, this doctrine was codified in the 1976 Copyright Act and allows a user to use existing works without permission, under certain circumstances and for various purposes including, for example, criticism, comment, new reporting, teaching, research, and scholarship and aids in ensuring that copyright serves the public good.

Justice Ginsburg called the fair use doctrine a “built-in free speech safeguard.” It prevents the right holder from possessing unlimited freedom to control all uses of their works and is indeed a “safety valve” for the First Amendment.

Link to the rest at Above the Law

Explaining How an Author Terminated a Movie Studio’s Copyright to “Terminator”

From Pirated Thoughts:

“I’ll be back” said the author of the original Terminator movie. Gale Ann Hurd, the author of the original Terminator film starring Arnold Schwarzenegger, has informed Skydance Media that it is terminating the grant of copyright to the work and seeks to reclaims the rights…but how?

Copyright law is complicated and the ins and outs can be incredibly confusing even to people who claim to specialize in the field. When someone creates a work (painting, screenplay, or photograph) they are deemed the owner of the work. There is one exception, if it is a work made-for-hire. A work made-for-hire comes in two forms: 1) you are paid by someone to create a work for them; or 2) the work is create in the normal course of business for an employer.

First, someone can be commissioned to create a work for someone else, like I am paying you to take a photograph of me and I will own the photograph. As long as the agreement is in writing before the photograph is taken, I own the rights instead of the photographer.

Second, if you create something in your everyday work life for your employer, they own it. For example, if I am a salaried reporter for the New York Times, the Times owns the copyright to any story that I may publish.

. . . .

If a work is a made-for-hire the original creator cannot ever regain the rights to the work. This is how many movie scripts and other stories are created. However, there is an exception.

If I independently create a work, meaning not as a work made-for-hire, I am the owner of the rights and I can do whatever I want with the work including transferring the rights to someone else. However, copyright law provides that after 35 years following publication and author can terminate the transfer and regain the rights to the original.

Gale Ann Hurd was the author of the Terminator film may back in the 80’s.

. . . .

In 1984, the Terminator film was published and here we are 35 years later and, according to the Hollywood Reporter, Hurd has informed the studio who now owns the film, Skydance Media, that is terminate the transfer of rights. Also terminated is the right to make derivative works such as sequels to the original Terminator.  The author must give two years before the termination takes effect and then all such exploitation of the work must cease in any way.

So what does this all mean for movie studios? Utter chaos perhaps as the loss of rights to make valuable sequels and prequels or just another settlement negotiation. Skydance will likely make Hurd a large monetary offer to retain the rights to the valuable franchise.

Link to the rest at Pirated Thoughts

And from The Future of Music Coalition:

Unlike most countries, the United States copyright law provides musicians and songwriters an opportunity to regain ownership of works that they transferred to outside entities, such as record labels and music publishers. Congress established this “second bite at the apple” for authors of creative works after a period of 35 years. “Termination of transfer” is not automatic, however, and there are certain steps creators must take to regain the rights to their works. This guide aims to shed more light on the process for the benefit of musicians and songwriters who are eligible to reclaim ownership of their creations.

As you read this guide, it is important to keep in mind that there are two copyrights in a piece of music: the composition copyright (think notes on paper) and the sound recording copyright (think sounds captured on tape or hard drive). Songwriters often enter agreements with publishers to “grant” their songwriting copyrights in exchange for up-front payment and/or the promise of circulation in the marketplace. Musicians (and bands) transfer their sound recordings to labels for similar reasons, including distribution, promotion and marketing. Authors of both copyrighted works can reclaim the copyrights to their original creations after a period of 35 years.

. . . .

Why do creators have this right?

It is often difficult to determine the worth of a creative work at the time of its creation. Because the value is unknown, musicians and songwriters will not be in the most advantageous position when negotiating what labels and publishers will pay for commercially exploiting their work. Thus, Congress made a policy decision to give authors an opportunity to regain ownership of their copyrights and entertain new, potentially more lucrative licenses for their work. Creators may also choose to re-transfer their copyright(s) under more favorable licensing terms. Consider also that changes in the marketplace can increase the range of potential uses for a piece of music, which may not have existed at the time of its creation. For example, few could have anticipated the explosion of console video games and “synch” opportunities. In addition, artists can now “go direct,” selling music directly to fans without the high barriers to entry common to the historic marketplace. There are surely new platforms for music that have yet to arrive, so it is important that artists have the ability to directly participate in revenue streams generated by potential new uses.

Section 203 of the Copyright Act permits authors (songwriters and recording artists) to terminate deals that they made transferring or licensing their copyrights after 35 years. Meaning, if you transferred your recording or song to a record label or publisher at the beginning of your career or licensed certain rights, you may be eligible to regain ownership or terminate the licenses after this period. Artists may have more leverage than they did at the time that they signed away their copyright(s), and using this leverage, artists could re-grant their copyrights in a better deal or recapture ownership for the purpose of licensing directly.

. . . .

Generally, any type of transfer or license that authors make with their copyright(s) can be terminated. This includes assignments (even such grants that purport to give someone else power over your copyright forever!) The grants that you can terminate apply only to transfers of copyrights; trademarks and other “related” non-copyright rights are not affected or terminable (e.g., if you transferred the trademark in your band name to your label, it will retain ownership of the trademark).

Link to the rest at The Future of Music Coalition

Lessons From Literal Crashes For Code

From Jotwell:

Software crashes all the time, and the law does little about it. But as Bryan H. Choi notes in Crashworthy Code, “anticipation has been building that the rules for cyber-physical liability will be different.” (P. 43.) It is one thing for your laptop to eat the latest version of your article, and another for your self-driving lawn mower to run over your foot. The former might not trigger losses of the kind tort law cares about, but the latter seems pretty indistinguishable from physical accidents of yore. Whatever one may think of CDA 230 now, the bargain struck in this country to protect innovation and expression on the internet is by no means the right one for addressing physical harms. Robots may be special, but so are people’s limbs.

In this article, Choi joins the fray of scholars debating what comes next for tort law in the age of embodied software: robots, the internet of things, and self-driving cars. Meticulously researched, legally sharp, and truly interdisciplinary, Crashworthy Code offers a thoughtful way out of the impasse tort law currently faces. While arguing that software is exceptional not in the harms that it causes but in the way that it crashes, Choi refuses to revert to the tropes of libertarianism or protectionism. We can have risk mitigation without killing off innovation, he argues. Tort, it turns out, has done this sort of thing before.

Choi dedicates Part I of the article to the Goldilocksean voices in the current debate. One camp, which Choi labels consumer protectionism, argues that with human drivers out of the loop, companies should pay the cost of accidents caused by autonomous software. Companies are the “least cost avoiders” and the “best risk spreaders.” This argument tends to result in calls for strict liability or no-fault insurance, neither of which Choi believes to be practicable.

Swinging from too hot to too cold, what Choi calls technology protectionism “starts from the opposite premise that it is cyber-physical manufacturers who need safeguarding.” (P. 58.) This camp argues that burdensome liability will prevent valuable innovation. This article is worth reading for the literature review here alone. Choi briskly summarizes numerous calls for immunity from liability, often paired with some version of administrative oversight.

. . . .

The puzzle, then, isn’t that software now produces physical injuries, thus threatening the existing policy balance between protecting innovation and remediating harm. It’s that these newly physical injuries make visible a characteristic of software that makes it particularly hard to regulate ex post, through lawsuits. In other words, “[s]oftware liability is stuck on crash prevention,” when it should be focused instead on making programmers mitigate risk. (P. 87.)

In Part III, Choi turns to a line of cases in which courts found a way to get industry to increase its efforts at prevention and risk mitigation, without crushing innovation or otherwise shutting companies down. In a series of crashworthiness cases from the 1960s, courts found that car manufacturers were responsible for mitigating injuries in a car crash, even if (a) such crashes were statistically inevitable, and (b) the chain of causation was extremely hard to determine. While an automaker might not be responsible for the crash itself, it could be held liable for failing to make crashing safer.

Link to the rest at Jotwell and here’s a link to the Washington Law Review article that Jotwell discusses.

The similarities and differences between injuries caused by what an author writes in a book and how an author writes computer code are interesting to PG.

Medical Influencers Show Up in False Advertising Case

From Rebecca Tushnet’s 43(B)log:

Wright [Medical Technology] is a medical device developer, manufacturer, and distributor; its products include surgical plates and other instruments used to repair bones in the foot and ankle areas. Paragon, founded by three former high-level Wright employees, makes competing orthopedic plate systems and other devices used to repair bones in the foot and ankle. Trade secret claims ensued.

Also, Paragon allegedly promoted a “cadaver course” intended to teach surgeons to perform procedures of the foot and listed Dr. Christopher Hyer, a Wright “Key Opinion Leader” (KOL, a common term for a medical influencer), as “anticipated course faculty” on the course’s promotional material. It also allegedly engaged in unfair competition by submitting a patent application that was nearly identical to a patent application that Wright had filed a month prior and by offering several KOLs equity or ownership interests in Paragon, leading to the KOLs using Paragon products in surgical procedures without disclosing their interests.

As to false advertising, Paragon argued that predictions (here, about who would teach the course) couldn’t be false advertising. But Wright alleged that there was never any consent for the use of the doctor’s name in advertising, and that Paragon was aware of this lack of consent, which was enough. (But that reasoning has to be incomplete: did Wright allege that Paragon never even asked the doctor to teach the course/that he turned them down before they started promoting it? If he had agreed to teach the course, even without specifically consenting to use of his name in advertising the course, it shouldn’t be false advertising, though the right of publicity result might be different (given the First Amendment-implicating nature of the course, though, it might not).) Anyway, the rule is that, while “[a]n honest or sincere statement of belief about a future event is not actionable,”…a statement known at that time by the speaker to be false, or a statement by a speaker who lacks a good faith belief in the truth of the statement, may constitute an actionable misrepresentation.”

Link to the rest at Rebecca Tushnet’s 43(B)log

PG says it’s a generally a risky idea to use someone’s name in an advertisement without their consent. Presumably, the use of the name is designed to show the advertiser in a better light because of the advertiser’s association with the individual.

If someone complains about such a use, such a complaint may gain wider attention than the original promotion/advertisement did and tend to create a negative public image of the advertiser as dishonest or prone to make statements that can’t be relied upon.

The OP reminded PG of the tort claim called False Light. From Wikipedia:

In law, false light is a tort concerning privacy that is similar to the tort of defamation. The privacy laws in the United States include a non-public person’s right to protection from publicity which puts the person in a false light to the public. That right is balanced against the First Amendment right of free speech.

False light differs from defamation primarily in being intended “to protect the plaintiff’s mental or emotional well-being”, rather than to protect a plaintiff’s reputation as is the case with the tort of defamation and in being about the impression created rather than being about veracity. If a publication of information is false, then a tort of defamation might have occurred. If that communication is not technically false but is still misleading, then a tort of false light might have occurred.

False light privacy claims often arise under the same facts as defamation cases, and therefore not all states recognize false light actions. There is a subtle difference in the way courts view the legal theories—false light cases are about damage to a person’s personal feelings or dignity, whereas defamation is about damage to a person’s reputation.

The specific elements of the tort of false light vary considerably, even among those jurisdictions which do recognize this Tort. Generally, these elements consist of the following:

    1. A publication by the defendant about the plaintiff;
    2. made with actual malice (very similar to that type required by New York Times v. Sullivan in “Defamation” cases);
    3. which places the Plaintiff in a false light; AND
    4. that would be highly offensive (i.e., embarrassing to reasonable persons).

Link to the rest at Wikipedia

The bottom line from a general business and legal standpoint is to not use a person’s name without his/her consent. One of the major exceptions to the general rule would be if someone who is well-known (a “public figure”) made a statement about a product or service in public where he/she knew or should have known others besides her/his immediate companions would be likely to hear it.

To stay out of online spats and maintain a good relationship with a friend or someone who may influence others with respect to your product/service, ask them for permission to quote them in your promotions and/or advertising. If they say “yes,” send them a nice thank you email or text thanking them for their generosity and helpfulness. And keep a copy of your thank you for your records.

At ‘Captions’ Hearing, Judge Hammers Audible’s Fair Use Argument

From Publishers Weekly:

If the decision to issue a preliminary injunction against Audible’s “Captions” program comes down to fair use, Audible may be in trouble.

Over the course of a 90-minute hearing on Wednesday, federal judge Valerie Caproni appeared thoroughly unmoved by Audible’s defense of its Captions program, and highly skeptical that Audible’s plan to scroll snippets of computer generated text alongside audiobooks in its app should be called anything other than what it is: reading.

Opening the day’s arguments, the plaintiff publishers’ attorney Dale Cendali told the court that Audible’s Captions program was “quintessential” copyright infringement, and was quickly engaged by Caproni, who questioned whether the “clunky” experience of Captions really competed with reading a book. Cendali, well prepared for the question, responded that Captions didn’t need to be “a substitute” for a book for it to be harmful. Captions “provides a reading experience,” Cendali stressed, “saying it is something other than that just doesn’t make sense.”

. . . .

Cendali hit all the major points in the publishers’ complaint, finding a mostly receptive audience in Caproni. Captions is not transformative, she argued, and it is commercial in nature. Despite its “public benefit” argument, Audible is in fact seizing what should be a negotiated right to gain a competitive advantage over its competitors, Cendali stressed. If allowed to go forward, Captions would harm the market for books, e-books, and immersion reading; weaken rightsholders’ ability to license works in other markets; “devalue and cheapen” those rights by offering the feature as a free add-on; and the poor quality of the Captions program would cause reputational harm to authors and publishers who might be associated with a shoddy program, their works wrested from their control without permission.

The last point seemed to especially hit its mark with Caproni as an example of the kind irreparable harm—distinct from the market harm also in play—required to win a preliminary injunction. “As much as there might be a moral rights issue [in U.S. copyright law] this is a moral rights issue,” Cendali argued. “The damage this does would be impossible to measure. Money damages cannot make up for this. It affects the entire industry. This is a sea change, what they are trying to do. That’s why you have all these publishers, authors, and the agents here together. That shows you how dramatic it is.”

. . . .

Captions is designed to work alongside an audiobook, not “divorced” from it, [Amazon’s attorney] argued, and it does not provide a reading experience.

“What do you mean it’s not a reading experience?” Caproni interjected. “It’s words.”

What followed was a strained back and forth about what constitutes reading a book, with Reisbaum suggesting that seeing words as you listen to them is, well, something else.

“The fact that you can see the words doesn’t make it a book,” Reisbaum insisted at one point, trying to convince the judge that Captions is an enhanced audio experience, not a book experience—users couldn’t flip forward or back at their own pace, for example, nor could the text be stored, or shared, or skimmed. The experience was designed to increase comprehension of the “words” that Audible customers have paid for. Caproni didn’t appear to be buying it. “They paid to have the words read to them,” she pointed out.

. . . .

Cendali reiterated that none of the publishers’ agreements granted Audible the right to generate and distribute text.

But that’s a conclusion not supported by evidence before the court, Reisbaum insisted. The parties have acknowledged that they have valid license agreements. Captions is a program to be used with that licensed content. Without seeing those agreements, and where Audible is alleged to have breached them, how does the court know that speech-to-text is not covered under those licenses?

But perhaps the most surprising moment came when Caproni realized that Captions had not launched, and that a launch was not imminent. Why was she being asked to grant a preliminary injunction?

. . . .

The publishers strongly protested. “We beg you to rule on the motion,” Cendali pleaded with the judge, saying that the uncertainty surrounding the Audible program was already impacting the publishers, harming their ability to do other deals. Caproni replied that it was only a preliminary injunction at stake, that there would still be uncertainty even if she granted it. Why not get right to trial and resolve the issue?

“They can’t just do a head fake,” Cendali said referring to Audible’s still unannounced launch date, adding that not ruling on the motion would give Audible “a get out of jail free card.”

“It’s not a get out of jail free card,” Caproni responded. “I don’t have any get out of jail free cards. What I have is a chance card,” she said, pointing out that the publishers could possibly lose the motion. Caproni reserved ruling for a later date.

Link to the rest at Publishers Weekly

Rap Lyrics in Court

From The New Yorker:

This week, in a New York district court, one of music’s least sympathetic characters, the Brooklyn rapper Tekashi 6ix9ine, took the stand to testify against alleged members of the Nine Trey Gangsta Bloods, the gang with which he associated himself. The rapper, whose real name is Daniel Hernandez, became a star witness, pointing out gang members who appeared in his music videos, explaining gang signs, and detailing the hierarchy of Nine Trey and its alleged leaders. At one point, prosecutors asked him about the lyrics for his hit song “GUMMO,” and whether the words included any threats against rivals. “It’s a song towards, like, somebody who I didn’t get along with,” the rapper said. “I don’t know. I thought it was cool at the time.”

It’s a cautionary tale; 6ix9ine’s outlandish antics rocketed his music up the charts, but he thought he needed street clout. His efforts to skirt one hip-hop faux pas—being a poser—crash-landed him into another: snitching. And, in doing so, he had to confirm what many had already figured out: nothing about his persona or his lyrics was authentic, which cast a light on the disconnect between the optics of hip-hop music and reality. The independent journalist Matthew Russell Lee reported on Twitter that 6ix9ine claimed he was never initiated into the gang, but he had an arrangement to “keep making hits and giving financial support,” and, in return, he got his “career, credibility, protection, all of the above.”

. . . .

The extraordinary confession of 6ix9ine comes on the heels of several trials involving high-profile rappers, such as those of the Texas rapper Tay-K, the Florida rapper YNW Melly, and the California rapper Drakeo the Ruler, where rap videos and lyrics have been introduced into the courtroom. Andrea Dennis, a professor at the University of Georgia School of Law and the co-author of the forthcoming book “Rap on Trial: Race, Lyrics, and Guilt in America,” described how law enforcement weaponizes rap lyrics to convict and incarcerate rappers, a legal assault that is unique to hip-hop. “We have searched widely, and, based on our research, rap is the only fictional art form treated this way,” she said. “No other musical genre and no other art is used in the same way or to the same extent.”

In April of 2017, the rapper Tay-K was under house arrest and awaiting trial, in Texas, for capital murder after his involvement in a 2016 robbery that left one person dead. He cut off his ankle monitor and fled the state, evading authorities for three months; he was arrested in New Jersey, in June, and brought to trial in July. The rapper’s music, particularly his single “The Race”—which, as its title suggests, was built around his status as a fugitive (and some otherwise cliché shit-talk)—was not really needed as evidence in the courtroom. Though he pleaded not guilty to the murder charge, Tay-K and his co-defendants had already taken deals that confirmed his role in the robbery. Nevertheless, during sentencing, prosecutors introduced the video and lyrics for “The Race,” along with the cover of his EP, #LivingLikeLarry, which depicts the then sixteen-year-old rapper holding a gun. The goal, it seems, was to dehumanize the rapper in the eyes of a jury through the use of his music.

. . . .

In many of these cases, an artist’s very participation in hip-hop is painted as a moral shortcoming that suggests a propensity for real-world violence and degeneracy. One Louisiana judge went so far as to tell the perpetually troubled rapper YoungBoy Never Broke Again, “Your genre has a lot to do with the mindset people have. Your genre has normalized violence.”

Link to the rest at The New Yorker

How the CASE Act Benefits Authors

PG has posted items about the proposed CASE legislation. While virtually any law can be abused, he thinks this legislation can help authors who are afflicted by small-time copying of their work.

From the Executive Director of the Authors Guild via Publishers Weekly:

Copyright law is the backbone of the publishing industry and the lifeblood of writers and other creators. It puts food on the table and pays the rent. It allows an author to write the next book or article, the photographer to set up the next shoot, the songwriter to keep writing music. The internet has made it easier for writers, composers, filmmakers, photographers, designers, and other creatives to distribute their work to the world—but it also makes it easier to steal or exploit others’ creative works.

Today, the vast majority of individual and small business copyright owners do not have the ability to enforce their copyrights. Copyright claims can only be brought in federal court, and such litigation generally costs hundreds of thousands of dollars. This is true even if the copyright owner simply seeks a reasonable license fee of a few hundred or thousand dollars. Such a system is absurd. A bill to create a much more sensible alternative to federal litigation has been working its way through Congress and promises to make copyright meaningful again for the millions of individuals and small businesses whose welfare depends on it.

The Copyright Alternative in Small-Claims Enforcement (CASE) Act would create an administrative tribunal within the U.S. Copyright Office to handle small copyright infringement cases. It would provide a streamlined, less formal process than federal court and would be drastically cheaper and more efficient. The parties would not need to hire attorneys, and all proceedings would be conducted remotely. To ensure impartiality, the Librarian of Congress would appoint a three-“judge” panel, with at least two of the panelists possessing previous experience representing a diversity of copyright interests. To address constitutional concerns, the process would be entirely optional for both parties.

With so many threats staring down 21st-century creators—many of them enabled by the digital transformation—a small claims court for copyright disputes is needed more than ever. Take book authors, for example. According to a recent Authors Guild survey, writing-related earnings plummeted to a median of $6,080 in 2017—down 42% since 2009. Full-time U.S. authors, meanwhile, earned a median of only of $20,300 from their writing. That’s well below the federal poverty line for a family of three or more. Over half of the authors surveyed reported earnings from their writing that were below the poverty line for an individual. These are not your typical federal court litigants.

Link to the rest at Publishers Weekly

What to Do if You Need To Sue Someone But Don’t Know Who They Are

From Pirated Thoughts:

Picture this, someone with the Twitter handle of “John Doe 55” sends out a tweet saying that you are the most vile, disgusting person ever and have been involved in criminal conduct….and it’s not true.  Any lawyer would tell you to sue that person for defamation.  But, how do you sue someone hiding behind an anonymous avatar? A lawsuit about pot candy holds all the answers.

The Internet is filled with people hiding behind the privacy of their laptop. People go on social media and spew hate-filled lies, an eBayer sells counterfeit jeans, or a person bullies other people. It is easy to hide behind the anonymity of the Internet but there are always ways to try to figure out who the person is.

Speaking from experience, I once had to sue an anonymous person who created a fake Facebook account and pretended to be a corporate executive of a major fashion company. The biggest question, how do you find out who that person is and how do you serve them with the lawsuit. In my case, I had a Facebook profile name and that was it. I commenced the lawsuit naming “John Doe” as the defendant. (John Doe gets sued a lot that poor guy.) I then issued a subpoena to Facebook. A subpoena is a legal document requiring a party to produce documents or answer questions or face penalty. Back when I sued, privacy was not so much of a hot button issue and Facebook turned over all they had on the person who created the account….an email address…that’s it. So just give up, right? Nay. I then had to subpoena Microsoft, it was a Hotmail account, so help us. After the response from Microsoft, I learned that the name of “John Doe” and what country he resided in. The fashion company chose not to pursue the action any further because the Facebook account was taken down after the issuance of the subpoena.

. . . .

Picture this, someone with the Twitter handle of “John Doe 55” sends out a tweet saying that you are the most vile, disgusting person ever and have been involved in criminal conduct….and it’s not true.  Any lawyer would tell you to sue that person for defamation.  But, how do you sue someone hiding behind an anonymous avatar? A lawsuit about pot candy holds all the answers.

The Internet is filled with people hiding behind the privacy of their laptop. People go on social media and spew hate-filled lies, an eBayer sells counterfeit jeans, or a person bullies other people. It is easy to hide behind the anonymity of the Internet but there are always ways to try to figure out who the person is.

Speaking from experience, I once had to sue an anonymous person who created a fake Facebook account and pretended to be a corporate executive of a major fashion company. The biggest question, how do you find out who that person is and how do you serve them with the lawsuit. In my case, I had a Facebook profile name and that was it. I commenced the lawsuit naming “John Doe” as the defendant. (John Doe gets sued a lot that poor guy.) I then issued a subpoena to Facebook. A subpoena is a legal document requiring a party to produce documents or answer questions or face penalty. Back when I sued, privacy was not so much of a hot button issue and Facebook turned over all they had on the person who created the account….an email address…that’s it. So just give up, right? Nay. I then had to subpoena Microsoft, it was a Hotmail account, so help us. After the response from Microsoft, I learned that the name of “John Doe” and what country he resided in. The fashion company chose not to pursue the action any further because the Facebook account was taken down after the issuance of the subpoena.

Link to the rest at Pirated Thoughts

When The ‘Whisper Network’ Goes Public: The ‘S****y Media Men’ List, 2 Years On

From National Public Radio:

In 2017, the “S****y Media Men” list began making the rounds on the Internet. Coming right on the heels of the downfall of movie producer Harvey Weinstein, the list seemed poised to take down even more men in media. The editable, crowdsourced spreadsheet contained accusations — all made anonymously, that ranged from “creepy” direct messages to “rape” — against prominent figures in journalism and publishing.

“Wikipedia wrapped in razor blades” is how journalism professor and news veteran Jill Geisler described the list at the time, pointing out that the list represented a welcome reversal of power and gender dynamics, as well as potential to cause harm. “By all means examine it — but do so carefully or there may be a lot of blood on your hands,” Geisler wrote.

One man on the list who believes his life was damaged is Stephen Elliott, author of The Adderall Diaries, as well as other books. He has filed a defamation lawsuit against list creator Moira Donegan, and the anonymous “Jane Doe” contributors.

. . . .

The Google spreadsheet Donegan created and shared with her female friends in media allowed contributors to add men’s names, employers and allegations against them. Donegan has said the list was meant to be private. In an essay in The Cut, in which she outed herself as the list’s creator, she says she took it down after 12 hours because she was overwhelmed by the response. But the spreadsheet — which was not password protected — was shared widely throughout the media industry, reported on in a Buzzfeed article, and versions of it were posted on Reddit and YouTube.

As Stephen Elliott describes it, appearing on the list resulted in a brutal fallout — both personally and professionally. Elliott is an acclaimed writer who has written extensively about his own destructive behavior. The New York Times wrote that his novel Happy Baby is “the most intelligent and beautiful book ever written about juvenile detention centers, sadomasochism and drugs.” A movie inspired by The Adderall Diaries starred James Franco and Cynthia Nixon.

But, Elliott says, when his name appeared on the Media Men list, the literary community “turned” on him. “I kind of stopped introducing myself as a writer, actually,” he says. He thought at first that the accusation against him — rape — was ludicrous. “I knew that was false,” he says. “I knew, not only that I had not ever raped anybody but also that there was nobody out there that thought I raped them.”

Even so, he says that media coverage planned for a new book he had coming out was canceled and that he was uninvited from book events. He claims his agents dropped him. Some sources close to his agents’ decisions deny Elliott was dropped because of the list. Elliott wrote a long essay — published on Quillette — in which he denied the allegations and talked about how the list damaged his career. But, he says, even that didn’t make things better. Within the literary community, he contends, minds were made up.

“I just realized that my community was not going to engage with me on this in good faith,” says Elliott. “‘You’re accused of rape. You’re on the S****y Media Men list. You’re canceled. You cannot be in this community anymore.'” Elliott figured: “The only way to clear my name is to file a lawsuit.”

. . . .

Long before the #MeToo movement reached its peak, women shared the names of the men they believed to be sexual predators informally, through “whisper networks.” Moira Donegan has compared the “S****y Media Men” list to those networks.

She declined to be interviewed for this story, but her attorney, Roberta Kaplan, agrees, saying the goal of the list was to keep women safe: “So that if a certain guy who you worked for was on the list you would know not to go out to drinks with him, or not to be alone in a room that you might be compromised with him in. And it was really meant as a kind of a warning and as a protection mechanism.”

At the top of the spreadsheet, Donegan included a disclaimer that reads: “This document is only a collection of misconduct allegations and rumors. Take everything with a grain of salt. If you see a man you’re friends with, don’t freak out.”

“What Moira was doing with this list was a very good faith effort,” says Kaplan, “not to try to get men in trouble — but to protect women from not being in these situations going forward. And under the First Amendment, given the fact that she did in good faith and given the fact that that was her motive, she can’t be sued for doing it.”

. . . .

NPR reached out to several men on the list. Aside from Elliott, only one agreed to an interview on the condition that his name not be used. He denies the allegations made against him. “It’s breached every corner of my life,” he says.

“Being accused of sexual assault is a really difficult thing to deal with. It makes you call into question every potential or actualized romantic or sexual relationship. Every interaction that I’ve had,” he says. “I spent months just thinking through everything that I had ever done and looking for something that would back [the allegation] up. When you’re accused of something like that it’s hard not to suspect yourself, I guess, in the way other people might suspect you.”

. . . .

As for Elliott’s defamation lawsuit against Donegan, a judge gave Elliott permission to subpoena Google for the names of the anonymous contributors. A Google spokesperson tells NPR the company “objects” to the subpoena.

Elliott’s lawyer Andrew Miltenberg says this case isn’t just about the “S****y Media Men” list. It’s about how we feel, as a society, about anonymous allegations of serious offenses that can stay online forever.

“This could be any of us. This could be any one of us, in any of our professions, could be anonymously attacked over and over again until our reputation is destroyed,” says Miltenberg.

Link to the rest at National Public Radio

Regardless of the political background, PG says the spreadsheet and online publication of its contents as described in the OP was almost certainly going to attract a defamation suit.

First, some definitions, per Law.com: (emphasis and paragraph breaks supplied by PG):

defamation

n. the act of making untrue statements about another which damages his/her reputation.

If the defamatory statement is printed or broadcast over the media it is libel and, if only oral, it is slander.

Public figures, including officeholders and candidates, have to show that the defamation was made with malicious intent and was not just fair comment.

Damages for slander may be limited to actual (special) damages unless there is malice.

Some statements such as an accusation of having committed a crime, having a feared disease or being unable to perform one’s occupation are called libel per se or slander per se and can more easily lead to large money awards in court and even punitive damage recovery by the person harmed.

Most states provide for a demand for a printed retraction of defamation and only allow a lawsuit if there is no such admission of error.

Truth is a defense a defamation suit.

Continuing from Law.com:

libel

1) n. to publish in print (including pictures), writing or broadcast through radio, television or film, an untruth about another which will do harm to that person or his/her reputation, by tending to bring the target into ridicule, hatred, scorn or contempt of others.

Libel is the written or broadcast form of defamation, distinguished from slander, which is oral defamation.

It is a tort (civil wrong) making the person or entity (like a newspaper, magazine or political organization) open to a lawsuit for damages by the person who can prove the statement about him/her was a lie.

Publication need only be to one person, but it must be a statement which claims to be fact and is not clearly identified as an opinion.

While it is sometimes said that the person making the libelous statement must have been intentional and malicious, actually it need only be obvious that the statement would do harm and is untrue.

Proof of malice, however, does allow a party defamed to sue for general damages for damage to reputation, while an inadvertent libel limits the damages to actual harm (such as loss of business) called special damages.

. . . .

Minor errors in reporting are not libel, such as saying Mrs. Jones was 55 when she was only 48, or getting an address or title incorrect.

2) v. to broadcast or publish a written defamatory statement.

Libel per se involves statements so vicious that malice is assumed and does not require a proof of intent to get an award of general damages. Libel against the reputation of a person who has died will allow surviving members of the family to bring an action for damages. . . . broadcast or written publication of a false statement about another which accuses him/her of a crime, immoral acts, inability to perform his/her profession, having a loathsome disease (like syphilis) or dishonesty in business. Such claims are considered so obviously harmful that malice need not be proved to obtain a judgment for “general damages,” and not just specific losses.

Most states provide for a party defamed by a periodical to demand a published retraction. If the correction is made, then there is no right to file a lawsuit. Governmental bodies are supposedly immune to actions for libel on the basis that there could be no intent by a non-personal entity, and further, public records are exempt from claims of libel. However, there is at least one known case in which there was a financial settlement as well as a published correction when a state government newsletter incorrectly stated that a dentist had been disciplined for illegal conduct.

The rules covering libel against a “public figure” (particularly a political or governmental person) are special, based on U.S. Supreme Court decisions.

Here’s a link to another story written by the originator of the list identifying herself.  Here’s a story identifying the list that appeared shortly thereafter providing more analysis and originating the “Wikipedia wrapped in razor blades” characterization of the list.

Back to PG’s thoughts. He will note that the lawsuit was filed in New York and that state’s libel laws will govern the outcome. He will write here only generally about the way defamation laws are written and enforced across the United States. Needless to repeat, nothing on TPV is legal advice. You obtain legal advice by hiring a lawyer, not by reading a blog.

PG suggests that the originator of the “S****y Media Men” list “published” the list for libel purposes when she sent it to a group of friends. Publication doesn’t have to occur in The New York Times to provide that element of a libel claim.

PG thinks that an accusation of rape most definitely qualifies as an accusation of a crime for purposes of the libel per se definition.

Does the originator of the list bear responsibility if someone else added the plaintiff’s name to the list and if, as the plaintiff claims, he did not rape that person or anyone else?

Was it reckless for the list’s original creator to send word of the list and provide access to a lot of her friends and leave access to the spreadsheet open for a period of time, thus enabling anyone who learned of the existence of the spreadsheet to add material, including the person who entered the plaintiff’s name and details of the alleged rape?

If the list was semi-public, should the originator have reasonably foreseen that one or more people would copy the list and republish it more widely and that the contents of the list would spread virally across the public internet?

Is the originator of the list responsible for its widespread distribution, including the broad dissemination of the plaintiff’s name, which was allegedly entered by someone other than the originator of the list?

Should the originator have reasonably foreseen that the limited publication of the list and the ease with which it could be further spread would lead someone to enter the Plaintiff’s name on the list as the perpetrator of a rape when such an allegation was, in fact, false?

PG notes that, based upon the contents of the OP, there was no way of confirming the identity of any of those who may have entered accusations against any of the men on the list, including the Plaintiff? Based on the OP, it appears that even the gender of people who included accusations on the list could not be verified.

Lest anyone mistake PG’s personal (rather than legal) opinions, he believes that anyone who commits a sexual assault on another person is guilty of a serious crime and should receive a severe punishment. He also acknowledges the many difficulties the victim may face in making an accusation of such crimes to an appropriate law enforcement agency and following through with that accusation through the criminal legal processes to a conviction and imposition of punishment upon the perpetrator of such a crime.

PG will note that the single most difficult court matter in which he was involved back when he spent a lot of time in court was as the appointed legal representative of a juvenile female victim in the rape trial of her assailant.

That said, false accusations of rape against someone who did not commit that crime or any lesser similar crime are also abhorrent and do nothing to improve the status of women who are victims of rape. In addition to the injustice done to the man, news of such false accusations play into the hands of defense counsel representing a properly-accused rapist when counsel casts doubt upon the truthfulness of the rape victim’s testimony.

Here’s a link to a bit more about defamation from Nolo.

Why is No One Talking About this Provision of the CASE Act? It’s Because It Benefits Users of Copyrighted Works

From The Copyright Alliance:

The Copyright Alternative in Small-Claims Enforcement Act of 2019 (the CASE Act), H.R. 2426 and S. 1273, a bill that would create an optional small claims tribunal within the U.S. Copyright Office, was introduced by Congress in May 2019. Before that, it had been introduced in different forms in prior Congresses as well.

. . . .

Ever since the Digital Millennium Copyright Act (DMCA) was passed, anti-copyright groups have been circulating horror stories about the DMCA notice and takedown process being used to harass users, suppress speech and remove material posted by users who have valid fair use defenses.[1] The DMCA includes provisions to protect against such misuse. One way that the DMCA protects against misuse is that it requires the sender of a DMCA takedown notice to assert under penalty of perjury that the material is infringing. Consequently, sending a takedown notice for the sole purpose of stifling speech opens that person up to a perjury charge. Another way the DMCA protects against misuse is found in Section 512(f) of the DMCA, which makes those who use the DMCA takedown process for the filing of false infringement claims liable for the damages suffered as well as for attorneys’ fees.

Anti-copyright groups like EFF, Public Knowledge and Engine counter that these protections are essentially ineffective because most of the recipients of takedown notices are individuals who do not have the money to sue in federal court [2] and because these recipients are often too afraid to file DMCA counter-notices because of the requirement in the DMCA that the counter-notice include a “statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located.…”

. . . .

If only there were a solution for this—perhaps some legislation in Congress that might help address these concerns. In fact, there is and it’s called the CASE Act, a bill that would create an optional small claims tribunal to resolve the following types of claims by both copyright owners and users of copyrighted material:

  • claims of infringement brought by copyright owners;
  • declarations of non-infringement brought by users;
  • claims of misrepresentation of infringement in takedown notices under Section 512(f) of the DMCA brought by users;
  • claims of misrepresentation of infringement in counter-notices under Section 512(f) of the DMCA brought by copyright owners; and
  • counterclaims and legal and equitable defenses (like fair use) brought by any party.

In the corpus of articles and blogs about the CASE Act, the primary, if not sole, focus has been on claims of infringement that can be brought by copyright owners. Unfortunately, there has been little, if any, discussion about claims that can be brought by usersunder the CASE Act.

Regrettably, anti-copyright vigilantes like EFF, ReCreate and Public Knowledge that purport to represent the interests of users are so laser focused on their disdain for copyright and the CASE Act’s provisions that will help copyright owners that they have FAILED to apprise users about the bill’s provisions that are designed to specifically benefit them.

. . . .

Complaint #1It is too costly for a user to challenge a cease and desist letter or DMCA takedown notice even when they have a meritorious defense.

These groups say that the high cost of litigation in the federal court system effectively prevents users from bringing declaratory action for noninfringement or DMCA misrepresentation claims against copyright owners. The CASE Act addresses these concerns by creating a low-cost, efficient, and streamlined way to resolve copyright infringement disputes that is accessible and affordable to individuals and small businesses and is a viable alternative to federal court. Here are a few ways that the CASE Act is much more affordable than federal court:

  • Attorneys’ Fees: The small claims process created by the CASE Act is simplified so that there is no need to hire an attorney. The largest cost associated with defending a copyright infringement case is the cost of hiring an attorney. In fact, the cost of hiring an attorney often exceeds the damages a user could obtain in a 512(f) misrepresentation case or a declaration of non-infringement action (since there would be no damages in such an action). Providing parties with the practical ability to defend themselves without paying tens of thousands of dollars (or more) to an attorney will enable users to bring claims (and defenses) that they cannot presently bring because of the high cost of doing so. If a party feels the need for legal representation, the CASE Act allows them to use the pro bono assistance of law students (supervised by a licensed attorney). The renowned copyright skeptic Larry Lessig famously argued fair use “is the right to hire a lawyer.” Once the CASE Act passes that statement will no longer be true (if it ever were).

. . . .

  • Travel Costs: Unlike federal court, participation in the small claims process takes place remotely. There is no need to travel to the Copyright Office in Washington DC. The CASE Act explicitly states that proceedings “shall be conducted at the offices of the Copyright Claims Board without the requirement of in-person appearances by parties or others”and that each party will make its case “by means of written submissions, hearings, and conferences carried out through internet-based applications and other telecommunications facilities.” The ability to participate remotely in the proceedings without the need to travel to Washington DC is a significant cost savings relative to bringing a case in federal court (where remote participation is generally not permitted), to say nothing of the tremendous convenience of not having to travel away from one’s home or business.

. . . .

Complaint #2: Users are too intimidated to file a DMCA counter-notice because to do so they must agree to be sued in federal court.

If, in fact, users with meritorious defenses or viable misrepresentation claims are not using the counter-notice process because they are intimidated by having to agree to litigate in federal court, the CASE Act provides an ideal alternative by allowing them to assert their claims and defenses without the complexity and trepidation they associate with federal court.

Complaint #3: The DMCA doesn’t give the parties time to explore alternatives to federal court litigation.

In comments filed with the U.S. Copyright Office, Engine, one of the groups that complained about the efficacy of the counter-notice process, said that one of the problems with the counter-notice process was that it “require[s] rights holders to proceed directly from notice to federal suit, with no time or ability to pursue mediation or other alternate dispute resolution.”  . . . .  The CASE Act effectively does what Engine is asking for by establishing a process to resolve copyright infringement claims and defenses in a cost-effective, quick fashion, without proceeding directly to federal court.

Link to the rest at The Copyright Alliance

PG would like to think that a Copyright Small Claims Court would work for individual authors, but has a couple of concerns:

— Small Claims Courts in various states appear to vary in efficacy according to the general attitude and qualifications of the judges in those courts. Typically those courts have jurisdiction over a limited geographic area so litigants can appear in person. The most recent version CASE Act (admirably) does not require the litigants to appear in person and contemplates that hearing officers in Washington DC will be resolving many cases based upon the written submissions of the parties and, in the event a hearing is required, that many such hearings will be conducted online or on the telephone with the litigants providing testimony, etc., from their homes or other nearby location without having to travel to Washington.

The current legislation does permit one or both of the parties to optionally appear in person, however. Based upon a lot of time spent in court during an early stage of his legal career, PG is a bit concerned about the asymmetry of methods of persuasion between an in-person party or advocate and one who is remote. He would prefer that, if one party wants to participate remotely, the entire hearing is handled remotely so the playing field is absolutely equal.

— Under the CASE Act, if a copyright holder/author files what the judge/hearing officer decides is a case without merit, the judge/hearing officer can assess costs and fees against the copyright holder in amounts large enough to heavily burden a great many indie authors.

Many Small Claims Courts in various states have upper limits for damages in the hundreds of dollars. CASE courts can assess damages of up to $30,000 plus attorneys fees if the hearing officer decides the claimant has acted in bad faith. That is enough to seriously harm a great many indie authors. PG understands that the UK has an IP Small Claims court that divides claims by the amount of damages claimed – equivalent to small, medium and large damages range. That type of system might assuage some of PG’s concerns about over-sized penalties imposed on authors who don’t have access to much money.

Authors Guild Says Cengage Failed to Renegotiate Contracts

From Publishing Perspectives:

The Authors Guild in New York has today (August 23) issued a statement on the class action lawsuit filed against Cengage by a group of writers for the service.

As Publishing Perspectives readers will recall from our mention of this case on August 19 that this is the second time writers have challenged the Cengage Unlimited subscription offer for students and educators, alleging that it violates the author agreement the company has had with its writers.

The new case, as charges that Cengage’s switch to the subscription model changes the royalty formula by which authors were on contract to be paid.

As the legal team at the guild is describing it, the authors now are in court against Cengage “for violating the terms of their contracts by unilaterally changing their payment structures from a traditional per-sale royalty to a relative-use share, thereby lowering their income dramatically.

. . . .

Throughout the first round of legal action, which led to a settlement in October, Cengage’s leadership, under CEO Michael E. Hansen, maintained that its writers were informed and that its development of the subscription model didn’t violate their contracts. In one interview with us, Hanson suggested that authors could well benefit in their usage-based payments as students and instructors explore more subjects and information they can find on offer.

By the end of April this year, Cengage Unlimited was announcing more than 1 million subscriptions since the launch of Unlimited in August 2018.

But a year earlier, the company had been engaged in an effort to defend the efficacy of the subscription model for authors, stating that it was “disappointed” to find some of the writers filing a complaint.

At the time, the company stated, “We have communicated clearly with our authors that the subscription service is consistent with the terms of their contracts, which we continue to honor. … Our authors, like those at our competitors, have seen declining royalties as a result of high prices that lower demand. The subscription service addresses students’ concerns and enables a more sustainable business model for the company and our authors.”

Now, the Author Guild’s legal assessment of the situation is that the change in Cengage’s approach–”to relative-use of an author’s title as compared to other titles in the same revenue pool, instead of paying the author a traditional per-sale royalty provided for in the publishing agreement”–is problematic in ways the company knows from the first court contest.

. . . .

“Rather than negotiating the terms in good faith and giving authors a chance to bargain for their fair share of digital subscription revenues, Cengage unilaterally decided what its authors’ contributions were worth. In doing so, Cengage took advantage of authors, hedging that few authors would have the resources to mount a lawsuit.”

. . . .

[I]n the fall of 2017 [Cenage CEO Michael Hansen] surprised much of the industry–and even his own sales staff, in his telling of it to Publishing Perspectives–by announcing that some 22,000 pieces of content would be made available by subscription. “I’m not in the business of getting standing ovations,” Hansen said to us at the time with a laugh. “But at this last sales conference when we announced it in Texas, the reaction was, ‘This is bloody brilliant. This solves the price objection, it just solves it.’”

. . . .

And as early as 2016, Hansen had worried aloud in making an address to Klopotek’s Publishers’ Forum in Berlin under Rüdiger Wischenbart’s direction that “We as an industry didn’t care about students.”

By that, he meant that faculty members had become the consumer-targets of the educational industry. Cengage had seen a single quarter drop of 23 percent of sales once students had rejected $150 to $200 textbooks. Facing $5.5 billion in debt, Hansen said, “was the least of our problems. We had never designed a textbook with a student sitting next to us.”

. . . .

Update, August 26: In response to Publishing Perspectives’ request, Cengage has sent this statement:

“We are disappointed to see these complaints against our efforts to improve students’ access to affordable, quality learning materials.

“Since its inception in March 2011, the MindTap learning platform has consistently helped students achieve higher retention, grades and confidence. However, despite significant investments in proven products, it became increasingly apparent that students were not able to afford them. Our authors, like those at our competitors, saw declining royalties as a result of high prices that lowered students’ demand.

“The Cengage Unlimited subscription service was created to address this longstanding problem. It also enables a more sustainable business model for the company and our authors.

“We have communicated clearly with our authors that the subscription service is consistent with the terms of their contracts, which we continue to honor. Since the service launched, we are in regular communication with them about the impact of the subscription on their royalties.

“We look forward to vigorously responding to these complaints as we remain steadfast in our belief that our industry must do more to contribute to affordable higher education.”

Link to the rest at Publishing Perspectives

Of course, it’s all about the students. Over many years, textbook publishers have reduced their prices year after year to help rein in the escalating cost of obtaining a college education and allow students to minimize the long-term burden of paying back large student loans.

From Vox:

Hannah, a senior at a private university in New York City, can’t think of a single semester when she bought all the books she needed for her classes. “Even when I was studying abroad,” she said, “there was no way for me to get through the semester without dropping $500-plus on textbooks, which I couldn’t afford.”

So she didn’t buy them. That semester, Hannah, who asked that her name be withheld due to privacy reasons, found most of the books she needed on Scribd, an e-book subscription service. “I used my free trial to do pretty much all my work for the semester and to take screenshots of things so I could access everything once the trial ended,” she said. If she couldn’t find them there, then she would do without.

Hannah’s tuition and housing is covered by scholarships, but she has to use student loans to pay for her health insurance; she pays for other necessities, including textbooks, out of pocket. In other words, her generous financial aid package isn’t enough to cover the essentials. Her situation is far from unusual: A 2014 report by the Public Interest Research Groups found that two-thirds of surveyed students had skipped buying or renting some of their required course materials because they couldn’t afford them.

Textbook publishers, for their part, have begun acknowledging that textbooks and other course materials have become so expensive that some students simply can’t afford them, even if it means their grades will suffer as a result. Publishers claim that new technologies, like digital textbooks and Netflix-style subscription services, make textbooks more affordable for all. But affordability advocates say that if anyone is to blame for the fact that textbook costs have risen more than 1,000 percent since the 1970s, it’s the publishers — and, advocates claim, these new technologies are publishers’ attempt to maintain their stranglehold on the industry while disguising it as reform.

. . . .

Some professors don’t assign textbooks at all, instead opting to fill their syllabi with a combination of journal articles and other texts, some of which cost money, some of which don’t. Thanks to the advent of textbooks that come bundled with online access codes — a single-use password that gives students access to supplementary materials and, in some cases, homework — other professors can rely on one textbook for almost everything.

As a general rule, though, the amount of money students are expected to spend on course materials has rapidly outpaced the rate of inflation since the ’70s. Affordability advocates point to two major factors behind this: a lack of competition in the higher education publishing industry, and the fact that professors, not students, ultimately decide which texts get assigned. Four major publishers — Pearson, Cengage, Wiley, and McGraw-Hill — control more than 80 percent of the market, according to a 2016 PIRG report. Major publishers also tend to “avoid publishing books in subject areas where their competitors have found success,” which ends up limiting professors’ options for what to assign.

Digital textbooks, especially those that come with access codes, have also contributed to rising costs. When students buy a textbook, they aren’t just paying for the binding and the pages; they’re paying for the research, editing, production, and distribution of the book. And when that book comes with an access code, they’re also paying for the development of — and, as the name suggests, for access to — all kinds of supplementary materials, from lessons to videos to homework assignments.

Access codes, the PIRG report notes, also undercut the resale market. Since the codes can only be used once, the books are essentially worthless without them. They can also prevent students from turning to other cost-saving measures like sharing a book with a classmate.

Kaitlyn Vitez, the higher education campaign director at PIRG, told me she’s met students who couldn’t afford to buy books that come with access codes, even if they knew their grades would suffer. “One student at the University of Maryland had to get a $100 access code to do her homework and couldn’t afford it, and that was 20 percent of her grade,” Vitez said. “So she calculated what grade she would have to get on everything else to make up for not being able to do her homework.”

“On a fundamental level,” Vitez said, “you shouldn’t have to pay to do homework for a class you already paid tuition for. You shouldn’t have to pay to participate.”

. . . .

Student advocates don’t expect the move toward truly affordable course materials to be led by publishers. Instead, they’re encouraging professors to adopt — and help develop — free, open source textbooks. Kharl Reynado, a senior at the University of Connecticut and the leader of PIRG’s affordable textbooks campaign, told me she’s had to pay “upward of $500” for books and access codes and has dropped courses because she couldn’t afford the costs. “I’ve had friends who spend entire paychecks on just their textbook costs in the beginning of the semester and had little money left over to cover food, gas, and sometimes, in extreme cases, rent because of it,” she said.

“We work closely with students and campus partners such as the UConn Library to promote open textbooks to different professors and educate students on their options,” she added.

The real challenge is getting professors, who are ultimately responsible for which books get assigned, to adopt the free options. Professors don’t assign books by major publishers or books with access codes because they want students to suffer — they do it because, more often than not, it’s easier.

As Vitez noted, an increasing number of universities are replacing full-time, tenured staff with adjunct professors. Adjuncts, many of whom are graduate students, are paid by the course, typically don’t receive benefits, and occasionally find out they’re teaching a class a few weeks before the semester begins. In other words, they don’t necessarily have the time or resources to spend the summer developing a lesson plan or to work alongside librarians to find quality materials that won’t come at a high cost to students.

That’s where books with access codes come in. These books come loaded with vetted, preselected supplementary material and homework assignments that can be graded online. They require a much smaller time investment from underpaid instructors.

Link to the rest at Vox

The Twenty-Six Words That Created the Internet

From The Wall Street Journal:

Americans are of two minds about the internet: They rely on it and fear it, they immerse themselves in it for hours and deplore its social consequences. Even some tech writers, people who a decade ago gushed about the web’s limitless possibilities for connectedness and free expression, now frequently sound like Gollum emoting about the Ring. It’s still their precious, but they hates it.

Jeff Kosseff’s “The Twenty-Six Words That Created the Internet” is in many ways the story of how and why this happened. The 26 words are these: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” They form Section 230 of the otherwise irrelevant Communications Decency Act, itself a part of the Telecommunications Act of 1996. Without them the internet would play a very different, and a much smaller, role in our lives.

Section 230 shields online platforms from legal liability for content generated by third-party users. Put simply: If you’re harassed by a Facebook user, or if your business is defamed by a Yelp reviewer, you might be able to sue the harasser or the reviewer, assuming you know his or her identity, but don’t bother suing Facebook or Yelp. They’re probably immune. That immunity is what enabled American tech firms to become far more than producers of content (the online versions of newspapers, say, or company websites) and to harness the energy and creativity of hundreds of millions of individual users. The most popular sites on the web—YouTube, Twitter, Facebook, eBay, Reddit, Wikipedia, Amazon—depend in part or in whole on user-generated content.

. . . .

The crucial moment came a few years later when someone—it was never clear who—posted an accusatory rant about the president of a brokerage firm to a message board hosted by the online service Prodigy. The firm, Stratton Oakmont, sued Prodigy for punitive damages. In 1995 a New York state judge ruled, in Stratton Oakmont v. Prodigy, in favor of the brokerage firm on the grounds that Prodigy, unlike its competitor CompuServe, exercised editorial control over user-generated content hosted on the site. Advancing technology was just then making content generated by users—comments, reviews, photos, videos—a more pronounced feature of online services. The Stratton Oakmont decision raised the possibility that aggrieved parties could sue the pixels off these companies if, like Prodigy, they moderated user content in any way.

That, in essence, is why Ron Wyden and Chris Cox, then members of the U.S. House, wrote Section 230. The results are everywhere around us. The U.S. was able to cultivate online companies in ways that other countries—even countries in the developed world—could not. Social-media companies, for example, could never have flourished in Canada or the European Union, where laws don’t shield online platforms from liability to the degree Section 230 does. In American law, Mr. Kosseff rightly says, “the Internet is different.”

. . . .

Mr. Kosseff acknowledges the dreadful problems caused by internet exceptionalism, but he still sides, reluctantly, with Section 230. “I remain convinced that the massive industry, social change, and free speech that we have seen since 1996 would not have been possible without Section 230.” Clearly there is truth in that, and in any case Section 230 isn’t going anywhere for the simple reason that Congress isn’t going to wreck the tech industry. But I’m not sure user-driven web platforms have brought about even the happy results Mr. Kosseff alludes to. “Massive” social change? Yes, if by that we mean the destruction of local newspapers, the mainstreaming of conspiracy theories and crank politics, and the cultivation of an entire class of educated people who think Twitter is reality. “Massive” free speech? They’ve given us more speech, for sure, but they’ve also enabled stupid and vicious verbiage to drown out reasonable speech and encouraged a younger generation to wonder what the point of free speech was in the first place.

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

Open Access Publishing

Based upon a comment to another post, PG refreshed his high-level knowledge of open-access academic journals.

From The Lloyd Sealy Library at The City University of New York:

Peter Suber has written extensively about open access,

“Open access (OA) literature is digital, online, free
of charge, and free of most copyright and licensing
restrictions.”

Scholarly Publishing and Academic Resources Coalition (SPARC) ‘s definition:

“Open Access is the free, immediate, online availability of research articles, coupled with the rights to use these articles fully in the digital environment.”

. . . .

Open access (OA) can be green, gold, gratis or libreGreen OA refers to authors’ self archiving their work on their own web or social media site, in their institution’s repository, or in a discipline based repository.  Gold OA refers to an article that is freely accessible on the journal’s website; the journal may be fully open access, or a hybrid with some articles freely available and others behind a paywall. Gratis open access articles can be accessed by anyone without any monetary charge.  Libre open access articles may be accessed and re-used without restrictions.

. . . .

The BBB Declarations; Budapest, Berlin, Bethesda:

The Budapest Open Access Initiative 2002 (BOAI, a declaration drawn up at a meeting sponsored by Soros’ Open Society Institute) defined open access to academic articles thus:  By ‘open access’ to this literature, we mean its free availability on the public internet, permitting any users to read, download, copy, distribute, print, search, or link to the full texts of these articles...”  Self-archiving and open access journals were the means suggested. Subsequent declarations from Berlin (2003) and Bethesda (2003) expanded and elaborated on the call for open access.  Subsequent “Berlin” meetings on campaigning & orchestrating for open access have been held, including the latest, Berlin 12, held in December 2015.

Ten years on from the Budapest Open Access Initiative: setting the default to open (2012):   “Ten years of experience lead us to reaffirm the definition of OA introduced in the original BOAI:

By “open access” to [peer-reviewed research literature], we mean its free availability on the public internet, permitting any users to read, download, copy, distribute, print, search, or link to the full texts of these articles, crawl them for indexing, pass them as data to software, or use them for any other lawful purpose, without financial, legal, or technical barriers other than those inseparable from gaining access to the internet itself. The only constraint on reproduction and distribution, and the only role for copyright in this domain, should be to give authors control over the integrity of their work and the right to be properly acknowledged and cited.”

Recommendations for the next ten years. (BOAI, 2012).  New guidelines issued on the tenth anniversary of the Budapest Open Access Initiative.

“Every institution of higher education should have a policy assuring that peer-reviewed versions of all future scholarly articles by faculty members are deposited in the institution’s designated repository….that future theses and dissertations are deposited upon acceptance in the institution’s OA repository…require deposit in the repository for all research articles to be considered for promotion, tenure, or other forms of internal assessment and review… We recommend CC-BY or an equivalent license as the optimal license for the publication, distribution, use, and reuse of scholarly work…”

. . . .

Authors: Choose the right journal for your research.

Think, Check, Submit! There are reputable journals that are completely open or have open access options.  But there are other journals you should avoid.  Choose carefully.  Think before submitting your manuscript to an unfamiliar journal – – publishing in a predatory journal may damage your reputation.

. . . .

What about author fees? The Eigenfactor Index of Open Access Fees compares author charges with the influence of the journal. Price doesn’t always buy prestige in open access.

Link to the rest at The Lloyd Sealy Library at The City University of New York

From Science Magazine at The American Association for the Advancement of Science:

How I became easy prey to a predatory publisher

I was nursing my wounds from my latest manuscript rejection when the email arrived. I was about 2 years into my assistant professorship, with the tenure clock running at full speed, and the pressure to publish was immense. I knew that navigating rejection was part of the job, but I was also starting to wonder whether my study—a modest project designed to be feasible with the minimal lab space and skeleton crew of a new professor—would ever see the light of day. So when I received the email from a newly launched journal inviting me to publish with them, I saw a lifeline. That’s when my troubles started.

I had heard about “predatory” journals during my graduate training but had no experience with them. The email appeared legitimate. It spelled my name correctly, referenced some of my previous work, and used correct grammar. The journal wasn’t on Beall’s List of Predatory Journals and Publishers. I thought I had done my due diligence. I submitted my manuscript. Shortly after, I celebrated the first round of favorable reviews. Things were going great—or so I thought.

Maybe it was the daily emails requesting my revisions, but something started to seem off. I rechecked Beall’s list—still nothing. I found that a postdoc at my institution was listed on the journal’s website as a member of the editorial board. I sent him an email asking about his experience with the journal, hoping he would confirm its legitimacy. That’s when the roof started to cave in. My colleague explained that he had never actually worked with the journal. He eventually realized that it wasn’t a reputable publication, but he hadn’t been able to get his name removed from the website. Then a trusted mentor suggested that I check up on the parent publisher. There it was, on Beall’s infamous list. My stomach tightened. I had fallen prey to a predatory journal. I worried that publishing in such a journal could hurt my tenure case and harm my reputation as a scientist.

I asked the journal to withdraw my manuscript from review, figuring that was the logical next step. They demanded that I justify my decision and debated my right to withdraw, insisting that I pay at least $400 to do so. After an exchange of emails—akin to “no way,” “yes way,” and “no way”—and one phone call demanding payment, I informed the journal that we were at an impasse and diverted all correspondence to the trash. I submitted the manuscript to a demonstrably legitimate journal, believing that I had put the mess behind me.

. . . .

That is, until a few months later, when I noticed an email in my spam folder from the predatory journal congratulating me on my recent publication and requesting payment. I googled the title of my manuscript and found that it had indeed been published. I was horrified: My manuscript had been in review at the legitimate journal for months, and this revelation would jeopardize its publication.

Link to the rest at Science Magazine at The American Association for the Advancement of Science

PG thinks Open Access to the products of academic research is a great idea, particularly if the research is directly or indirectly funded or subsidized by taxpayer money.

However, publications that require payment from the author for inclusion in the publication are (in PG’s humbly educated opinion) akin to vanity presses and, evidently, subject to the temptations that drive sleazy vanity press operations in the non-academic world to fleece authors who wander into their clutches.

From Nature:

Spam e-mails changed the life of Jeffrey Beall. It was 2008, and Beall, an academic librarian and a researcher at the University of Colorado in Denver, started to notice an increasing flow of messages from new journals soliciting him to submit articles or join their editorial boards. “I immediately became fascinated because most of the e-mails contained numerous grammatical errors,” Beall says. He started browsing the journals’ websites, and was soon convinced that many of the journals and their publishers were not quite what they claimed. The names often sounded grand — adjectives such as ‘world’, ‘global’ and ‘international’ were common — but some sites looked amateurish or gave little information about the organization behind them.

Since then, Beall has become a relentless watchdog for what he describes as “potential, possible or probable predatory scholarly open-access publishers”, listing and scrutinizing them on his blog, Scholarly Open Access. Open-access publishers often collect fees from authors to pay for peer review, editing and website maintenance. Beall asserts that the goal of predatory open-access publishers is to exploit this model by charging the fee without providing all the expected publishing services. These publishers, Beall says, typically display “an intention to deceive authors and readers, and a lack of transparency in their operations and processes”.

Beall says that he regularly receives e-mails from researchers unhappy about their experiences with some open-access journals. Some say that they thought their papers had been poorly peer reviewed or not peer reviewed at all, or that they found themselves listed as members of editorial boards they had not agreed to serve on. Others feel they were not informed clearly, when submitting papers to publishers, that publication would entail a fee — only to face an invoice after the paper had been accepted. According to Beall, whose list now includes more than 300 publishers, collectively issuing thousands of journals, the problem is getting worse. “2012 was basically the year of the predatory publisher; that was when they really exploded,” says Beall. He estimates that such outfits publish 5–10% of all open-access articles.

. . . .

Beall says that he has been the target of vicious online comments, and last December he was the subject of an online campaign to create the false impression that he was extorting fees from publishers to re-evaluate their status on his list. The Canadian Center of Science and Education, a company based in Toronto that publishes many open-access journals and is on Beall’s list, is now threatening to sue him for alleged defamation and libel. But even some experts in scholarly publishing are uncomfortable with Beall’s blacklist, arguing that it runs the risk of lumping publishers that are questionable together with those that could be bona fide start-ups simply lacking experience in the publishing industry. Matthew Cockerill, managing director of BioMed Central, an open-access publisher based in London, says that Beall’s list “identifies publishers which Beall has concerns about. These concerns may or may not be justified.”

. . . .

As a research librarian, Beall has been in prime position to watch the dramatic changes that have taken place in scientific publishing since the rise of the open-access movement about a decade ago. In the conventional subscription-based model, journals bring in revenue largely through selling print or web subscriptions and keeping most online content locked behind a paywall. But in the most popular model of open access, publishers charge an upfront ‘author fee’ to cover costs — and to turn a profit, in the case of commercial publishers — then make the papers freely available online, immediately on publication.

The open-access movement has spawned many successful, well-respected operations. PLOS ONE, for example, which charges a fee of US$1,350 for authors in middle- and high-income countries, has seen the number of articles it publishes leap from 138 in 2006 to 23,464 last year, making it the world’s largest scientific journal. The movement has also garnered growing political support. In the past year, the UK and US governments, as well as the European Commission, have thrown their weight behind some form of open-access publishing. And scarcely a week goes by without the appearance of new author-pays, open-access publishers, launching single journals or large fleets of them.

Many new open-access publishers are trustworthy. But not all. Anyone with a spare afternoon and a little computing savvy can launch an impressive-looking journal website and e-mail invitations to scientists to join editorial boards or submit papers for a fee. The challenge for researchers, and for Beall, is to work out when those websites or e-mail blasts signal a credible publisher and when they come from operations that can range from the outright criminal to the merely amateurish.

In one e-mail that Beall received and shared with Nature, a dental researcher wrote that she had submitted a paper to an open-access journal after she “was won over by the logos of affiliated databases on the home page and seemingly prestigious editorial board”. But the researcher, who prefers to remain anonymous, says that she became concerned about the peer-review process when the article was accepted within days and she was not sent any reviewers’ comments. She says that last week — several months after her original submission — she was sent page proofs that match the submitted manuscript, and that she still has not seen reviewers’ comments.

. . . .

OMICS Group, based in Hyderabad, India, is on Beall’s list. One researcher complained in an e-mail to Beall that she had submitted a paper to an OMICS journal after receiving an e-mail solicitation — but learned that she had to pay a fee to publish it only from a message sent by the journal after the paper had been accepted. “To my horror, I opened the file to find an invoice for $2,700!” she wrote. “This fee was not mentioned anywhere obvious at the time I submitted my manuscript.” (Nature was unable to contact this researcher.) Beall says that OMICS journals do not show their author fees prominently enough on their journal websites or in e-mails that they send to authors to solicit manuscript submissions.

Srinubabu Gedela, director of OMICS Group, says that article-handling fees are displayed clearly on the ‘Instructions for Authors’ web page for each OMICS journal. Gedela adds that he would assume researchers would be aware that such open-access journals charge author fees. He says that OMICS Group is “not predatory” and that its staff and editors are acting in “good faith and confidence” to promote open-access publishing.

Link to the rest at Nature

Here’s a link to OMICS International and here’s a link to the organization’s Peer Reviewed Journals page (the page has a great many journals listed).

From OMICS International’s Open Access page:

An Open Access publication is one that meets the following conditions:

» The author(s) and copyright holder(s) grant to all users a free, irrevocable, worldwide, perpetual right of access and a license to copy, use, distribute, transmit and display the work publicly and to make and distribute derivative works in any digital medium for any responsible purpose, subject to proper attribution of authorship, as well as the right to make small number of printed copies for their personal use.
» A complete version of the work and all supplemental materials, including a copy of the permission as stated above, in a suitable standard electronic format is deposited immediately upon initial publication in at least one online repository that is supported by an academic institution, scholarly society, government agency, or other well-established organization that seeks to enable Open Access, unrestricted distribution, interoperability, and long-term archiving (for the biomedical sciences, PubMed Central is such a repository).
» Open Access is a property of individual works.
» Community standards, rather than copyright law, will continue to provide the mechanism for enforcement of proper attribution and responsible use of the published work.

Link to the rest at OMICS International’s Open Access page

From OMICS International’s Membership page:

The OMICS International membership program, initiated to accomplish the vision of making Healthcare & Scientific Information Open Access, enables academic and research institutions, societies, groups, funding organizations and corporations to actively support Open Access in scholarly publishing and also support the participation of its representatives and students in International conferences.

Membership is now available for the scientific societies/corporatecompanies/universities/institutes/individuals/students.

. . . .

Individual membership

Six Months membership

  1. Member can submit 3 articles to any of the OMICS International journals
  2. Member will get a prestigious certificate of six months membership from OMICS International

Annual membership

  1. Member can submit 10 articles to any of the OMICS International journals
  2. Member will get waiver on registration for any one OMICS International conference
  3. Member will get a prestigious certificate of Annual membership from OMICS International

Three-year membership

  1. Member can submit 20 articles to any of the OMICS International journals
  2. Member will get waiver on registration for any two OMICS International conferences
  3. Member will get a prestigious certificate of Three-year membership from OMICS International

Five-year membership

  1. Member can submit unsolicited number of articles to any of the OMICS International journals
  2. Member will get waiver on registration for any four OMICS International conferences
  3. Member will get a prestigious certificate of Five-year membership from OMICS International

Link to the rest at OMICS International’s Membership page

From the OMICS International’s Membership Fees section of the OMICS International Membership page:

Membership Six-months* Annual Three years Five years
Individual $ 3000 $ 5000 $ 10000 $ 15000

Link to the rest at OMICS International’s Membership Fees page

For the record, PG doesn’t know exactly what “Community standards, rather than copyright law, will continue to provide the mechanism for enforcement of proper attribution and responsible use of the published work” means (perhaps it is defined further elsewhere on the OMICS website), but, absent other material factors, he would likely advise an author/client to retain ownership of the copyright to the author’s work and to not waive any rights the author may have under domestic or international copyright laws and treaties.

From Queensborough Community College, CUNY:

What is Predatory Open Access Publishing?

In an interview with The Chronicle of Higher Education, Prof. Jeffrey Beall describes the phenomenon this way:

“Predatory open-access publishers are those that unprofessionally exploit the gold open-access model for their own profit. That is to say, they operate as scholarly vanity presses and publish articles in exchange for the author fee. They are characterized by various level of deception and lack of transparency in their operations.  For example, some publishers may misrepresent their location, stating New York instead of Nigeria, or they may claim a stringent peer-review where none really exists.”

Predatory publishers may also claim to be included in directories and indexes when they are not and include faculty on their editorial boards who have not agreed to serve.

Predatory publishers began profilerating in the past few years with the increase in open access publishing, and we are now also seeing an increase in predatory conferences, some which choose a name nearly identical to an established, well-respected conference.

How Do I Avoid Predatory Publishers?

Check the publisher and journal on the predatory publishing lists linked to the left.

Contact your department’s Library Liaison for a second (or first) opinion about the authenticity of a publisher or journal. We’re happy to help faculty identify reliable, quality scholarly publishing venues.

Use the following checklist, provided by Declan Butler in Nature, as a guide for assessing publishers and journals:

How to perform due diligence before submitting to a journal or publisher.

  • Check that the publisher provides full, verifiable contact information, including address, on the journal site. Be cautious of those that provide only web contact forms.
  • Check that a journal’s editorial board lists recognized experts with full affiliations. Contact some of them and ask about their experience with the journal or publisher.
  • Check that the journal prominently displays its policy for author fees.
  • Be wary of e-mail invitations to submit to journals or to become editorial board members.
  • Read some of the journal’s published articles and assess their quality. Contact past authors to ask about their experience.
  • Check that a journal’s peer-review process is clearly described and try to confirm that a claimed impact factor is correct.
  • Find out whether the journal is a member of an industry association that vets its members, such as the Directory of Open Access Journals (www.doaj.org) or the Open Access Scholarly Publishers Association (www.oaspa.org). [Some questionable journals appear in directories such as DOAJ and Cabell’s; we don’t advise using this as your sole criteria.]
  • Use common sense, as you would when shopping online: if something looks fishy, proceed with caution.
  • Or contact your Librarian! We’re happy to help assess journals and publishers.

Link to the rest at Queensborough Community College, CUNY

The Queensborough CC page cited above also includes the following:

Predatory Publishers List

Prof. Jeffrey Beall, University of Colorada Denver librarian, maintains a list of potential predatory publishers and stand alone journals. Follow the links below to check if a publisher or journal has been flagged as possibly predatory.

PG notes Professor Beall’s two lists are for Potential, Possible or Probable Predatory, etc. Publishers and Journals.

When PG checked the above referenced Publishers list, Professor Beall included Omix International.

All links were created, checked and valid on the date this post was published. PG won’t check back to determine if any of the links are no longer functioning in the future. All excerpts from the Omix International web sites are subject to the Creative Commons Attribution 4.0 International Public License (CC BY 4.0)

 

 

When Good Sites Go Bad: the Growing Risk of Website Accessibility Litigation

From The National Law Review:

For a growing number of companies, websites are not only a valuable asset, but also a potential liability risk. In recent years, the number of website accessibility lawsuits has significantly increased, where plaintiffs with disabilities allege that they could not access websites because they were incompatible with assistive technologies, like screen readers for the visually impaired.

If you have never asked yourself whether your website is “accessible,” or think that this issue doesn’t apply to your company, read on to learn why website accessibility litigation is on the rise, what actions lawmakers and the courts are taking to try to stem the tide, how to manage litigation risk, what steps you can take to bring your company’s website into compliance, and how to handle customer feedback on issues of accessibility.

. . . .

In recent years, there has been a nationwide explosion of website accessibility lawsuits as both individual lawsuits and class actions. Plaintiffs have brought these claims in federal court under Title III of the Americans with Disabilities Act (ADA) and, in some cases, under similar state and local laws as well. In 2018, the number of federally-filed website accessibility cases skyrocketed to 2,285, up from 815 in the year prior. In the first half of 2019, these cases have increased 51.7% over the prior year’s comparable six-month period, with total filings for 2019 on pace to break last year’s record by reaching over 3,200.

. . . .

The ADA was enacted in 1990 to prevent discrimination against people with disabilities in locations generally open to the public (known as public accommodations). The ADA specified the duties of businesses and property owners to make their locations accessible for people with disabilities, but it was enacted before conducting business transactions over the internet became commonplace. With the rapid growth of internet use, lawsuits emerged arguing that websites were places of public accommodation under the meaning of the ADA.

These claims have presented serious questions about whether, when, and how website owners must comply with the ADA. There is no legislation that directly sets out the technical requirements for website accessibility. And while the U.S. Department of Justice (DOJ) has stated that “the ADA applies to public accommodations’ websites,” it has not clarified exactly what standards websites must meet to comply with the law. In the absence of clear guidance, courts considering the question have frequently looked to the Web Content Accessibility Guidelines(WCAG), first developed by the World Wide Web Consortium (W3C) in 1999, but most recently updated in 2018.

. . . .

Knowing your level of exposure is an important first step. Individual risk is currently based on three factors:

  • Location: Brick and mortar locations, the delivery of products, or the performance of services in New York or Florida heighten a company’s exposure.
  • Industry: The present trend shows that retail, food service, hospitality, banking, entertainment industries, and educational institutions are especially at risk.
  • Current website structure: Sites with e-commerce functions or purchased from third-party developers not currently in compliance with WCAG standards are popular targets.

Unfortunately, it is often difficult to predict the cost and complexity of bringing a website into WCAG compliance based simply on viewing it. An audit of the source code is often required. That said, you can start with a review of your site and develop plans and processes for accessibility. The first steps can include:

  • Assess current compliance: Use free online tools like wave and chrome vox and/or enlist a third-party audit to help you understand your current level of accessibility.
  • Plan for future compliance: Create an overall plan for achieving accessibility on a timeline that makes business sense.
  • Take immediate action: Adopt first-step improvements that can be implemented immediately, and create a process for considering accessibility before all future implementations.

Link to the rest at The National Law Review

In general, this type of litigation is handled by attorneys on a contingency-fee basis, which means that an assessment of how large the defendant is and whether he/she/it has liability insurance to satisfy a claim are important preliminary steps counsel is likely to take.

This means that AT&T is more likely to be sued than Janet Johnson, aspiring romance author with a website, is.

PG ran the free online tool mentioned above, WAVE, on TPV, and the program reported over 100 items PG should fix so TPV is accessible. One example is that the photo of the old book at the top left of each page of TPV has no ALT tag that would tell visually-impaired visitors to the blog using a screen reader what the content of the photo is.

The other free online tool mentioned in the OP, ChromeVox, is a Chrome screen reader plugin. Once installed and activated, you can hear what a vision-impaired visitor to your website will encounter.

The OP has provided PG with added impetus to bring the WordPress Theme for TPV up to date. He ran a Google search for ada compliant WordPress themes and found an extensive list.

An Argument for the Case Act

CASE = Copyright Alternative in Small-Claims Enforcement Act

From Medium:

I got an email from the Electronic Frontier Foundation, whose work I admire and mostly support. In the email the EFF asked its supporters to call their representatives and tell them not to support the CASE act.

Roughly, the CASE act would lay out a new way for copyright holders to seek payment when their work is infringed by establishing a small-claims-court-like board inside the US Copyright office. Damages would be limited to US$15,000 for each infringed work and a total of $30,000 per claim. The law is meant to protect infringers from much larger monetary claims and to give the infringed a way to obtain compensation without having to mount a prohibitively expensive lawsuit.

My work pays for my family’s shelter, food and education and for my ability to keep writing music. The CASE act would give me a simple, inexpensive way forward when someone in the US steals my work and refuses to engage with me to execute a license to use my copyrights.

The EFF says that the CASE act will spawn an industry of copyright trolls who will file frivolous claims in order to make money off innocent people. Does the threat of copyright trolling justify limiting my ability to obtain compensation when my work is stolen? As I hear it, the argument is that giving corporations the ability to collect damages from individual infringers who aren’t doing harm is so great an evil that we cannot craft legislation that would allow individuals to bring valid claims against corporate infringers who are doing real harm.

Let me tell you some of my experience as an artist who earns a living from their work and whose work is often infringed/appropriated/stolen by entities who include it in their commercial projects without permission or compensation and sometimes even try to pass it off as their own. My work is supposedly protected by copyright law but when such an infringement occurs I have little recourse beyond sending a stern letter or attempting to shame them on social media. I would like to explain why, from my perspective, the CASE act sounds like a good idea.

. . . .

When I say “stealing” I am not talking about the hobbyist who puts my music in their climbing video. I am not talking about the young dancer who posts a video of her routine to one of my songs. I am not talking about the gamer who posts videos of their gaming sessions with my music as soundtrack. I am not talking about the wedding photographer who has my music as the soundtrack to their photography slideshow. I am not talking about my work used in a meme. In fact, I am not talking about most of the 22,000 third-party videos on Youtube with my music in the background. I don’t see any of that as stealing, I see it as a compliment. It says to me “I love your work and I love it enough that I did my own work to it and here it is for the world to see”.

. . . .

While legally most of these uses of my songs and recordings are technically infringing, I do not view these uses of my music as problematic and I do not block upload of such videos to YouTube.

Every now and then I will stumble on a usage that I find offensive, like a homemade anti-abortion video. I’ve gone through the take-down process and written to the creator of a video asking them to remove my music. It’s offensive to my moral rights as an artist, which are unprotected in the US, but because the usage does infringe my master and synchronization rights, I can have it taken down. I haven’t been tested on this thankfully, but I would not bring suit against an individual unless they blatantly refused to remove my music.

So, what is the “stealing” that I would use the CASE act for?

– Stealing is when someone writes asking to use my work, doesn’t accept the fee my licensing agent quotes them and uses it anyway.

– Stealing is when my work is knowingly used inside another work and my work is passed off as someone else’s.

– Stealing is using my work in something, charging for it and not crediting me in the hope I won’t find out.

Financial losses aside, I find these last two kinds of thefts emotionally devastating. When I learn of a funded production that used my music as an integral part and didn’t credit me, I feel such incredible sadness. I feel bereft, like something I care deeply about was taken from me. I feel taken advantage of. My first response is often tears. An infringement, particularly one from a creative production — artists stealing from other artists — is profoundly shattering.

Link to the rest at Medium

Here’s a link to the proposed legislation (It’s not a law yet and may or may not become one in the future)

Although PG suspects some will misuse the CASE Act (just as some misuse a variety of other laws), as a general proposition, he thinks it’s a good idea.

For small-time infringers, an official document arriving from a government agency will, in many cases, prompt cessation of infringement, a little like a super takedown notice with teeth. Hopefully, the experience will also deter future copyright infringement by such individuals.

Since participation in proceedings under the CASE Act process is voluntary (a copyright owner can elect the CASE route instead of filing suit in federal court and the recipient of a notice that a CASE complaint has been filed can remove the matter to federal court), it’s not mandatory. As a practical matter, removing a matter that begins as a CASE complaint will require the hiring of an attorney by each side, however, so this may present an opportunity to settle the dispute.

As with any dispute resolution forum, crazy people will sometimes file CASE complaints against sane people who have committed no wrong. Judges and Hearing Officers generally have more experience than they would wish with crazy people, however, and PG would be surprised if summary dismissal of a CASE complaint brought by a crazy person would not be relatively easy to achieve.

Filing a prompt registration of the author’s copyright to a creative work is always a good idea (and probably does not require an attorney), but if CASE becomes a law, sending a copy of the author’s registered copyright to the book that allegedly infringes the work of another will likely be another way to resolve CASE complaints filed in bad faith.

Indeed, if a CASE complaint is filed in bad faith, the filing of a CASE counterclaim by the true author against the bad faith filer may serve as a deterrent against future bad behavior.

Is CASE likely to help an individual author whose work has been misappropriated by a large publisher,  motion picture studio, etc.?

PG suspects not. Such large organizations have ready access to counsel who will be competent in copyright litigation in federal court and will be quite likely to cause the CASE complaint to be removed to federal court.

Again, CASE isn’t a law and may never become the law. Those supporting CASE have tried and failed to get the legislation passed before. If CASE does become the law, the resulting law may be much different than the current bill PG linked to above and which provides the basis for PG’s commentary.

And finally, although PG is an attorney, he doesn’t provide legal advice in TPV blog posts. Those requiring legal advice will need to retain an attorney to provide such advice for them.

Lady Chatterley’s Legal Case: How the Book Changed the Meaning of Obscene

From The Guardian:

The 1960 obscenity trial that lead to the acquittal of Penguin Books for publishing DH Lawrence’s novel Lady Chatterley’s Lover is a seminal case in British literary and social history.

The verdict was an important victory for freedom of expression, and saw publishing in Britain become considerably more liberal.

. . . .

The trial highlighted the gap between modern society and an out-of-touch establishment, demonstrated most tellingly in the opening remarks to the jury of the prosecutor, Mervyn Griffith-Jones: “Is it a book that you would even wish your wife or your servants to read?”

Now, almost 60 years later, the trial remains the landmark case in British obscenity law, and its wider cultural and historic significance was demonstrated earlier this year. An annotated copy of the book used by the trial judge, Sir Laurence Byrne, was sold at auction to an overseas bidder for £56,250, but the then arts minister, Michael Ellis, placed a temporary bar preventing its export.

. . . .

Philippe Sands QC, the writer, human rights barrister and president of English Pen, says that Lawrence is “unique in the annals of English literary history” and that the book “was at the heart of the struggle for freedom of expression” in the courts and beyond. Calling for support to keep the book in the UK, he says it is “a symbol of the continuing struggle to protect the rights of writers and readers at home and abroad”.

Lady Chatterley’s Lover tells the story of an affair between the young, married and upper-class Lady Chatterley and her married, working-class gamekeeper, Oliver Mellors.

. . . .

The book challenged establishment values and, although it had been published elsewhere in Europe in 1928, remained unpublished in the UK for 30 years following Lawrence’s death in 1930, as publishers were fearful of prosecution.

Penguin’s co-founder Allen Lane wanted to publish an unabridged cheap paperback version for three shillings and sixpence, the same price as 10 cigarettes, to make it affordable for the “young and the hoi polloi”.

The previous year had seen the enactment of the Obscene Publications Act 1959, which introduced a defence for publishers if they showed that a work was of literary merit and for the public good. The trial of Penguin Books was a test case of the new law.

The defence called 35 professors of literature, authors, journalists, editors, critics, publishers and child education experts, and four Anglican churchmen, who each declared that the book had sufficient literary merit to deserve publication for the public good.

Link to the rest at The Guardian

The Disinformation Age: a Revolution in Propaganda

From The Guardian:

Father came out of the sea and was arrested on the beach: two men in suits standing over his clothes as he returned from his swim. They ordered him to get dressed quickly, pull his trousers over his wet trunks. On the drive the trunks were still wet, shrinking, turning cold, leaving a damp patch on his trousers and the back seat. He had to keep them on during the interrogation. There he was, trying to keep up a dignified facade, but all the time the dank trunks made him squirm. It struck him they had done it on purpose, these mid-ranking KGB men: masters of the small-time humiliation, the micro-mind game.

It was 1976, in Odessa, Soviet Ukraine, and my father, Igor, a writer and poet, had been detained for “distributing copies of harmful literature to friends and acquaintances”: books censored for telling the truth about the Soviet Gulag (Solzhenitsyn) or for being written by exiles (Nabokov). He was threatened with seven year’s prison and five in exile. One after another his friends were called in to confess whether he had ever spoken “anti-Soviet fabrications of a defamatory nature, such as that creative people cannot realise their potential in the USSR”.

Forty years have passed since my father was pursued by the KGB for exercising a citizen’s simple right to read, to listen to what they chose and to say what they wanted. Today, the world he hoped for, in which censorship would end – as the Berlin Wall would fall – can seem much closer: we live in what academics call an era of “information abundance”. But the assumptions that underlay the struggles for rights and freedoms in the 20th century – between citizens armed with truth and information and regimes with their censors and secret police – have been turned upside down. We now have more information than ever before, but it hasn’t only brought the benefits we expected.

. . . .

More information was supposed to mean more freedom to stand up to the powerful, but has also given the powerful new ways to crush and silence dissent. More information was supposed to mean a more informed debate, but we seem less capable of deliberation than ever. More information was supposed to mean mutual understanding across borders, but it has also made possible new and more subtle forms of subversion. We live in a world in which the means of manipulation have gone forth and multiplied, a world of dark ads, psy-ops, hacks, bots, soft facts, deep fakes, fake news, Putin, trolls, Trump.

Forty years after my father’s interrogation I find myself following the palest of imprints of his journey, though with none of his courage, or certainty, and none of the risk. I run a programme at a London university that researches the newer breeds of malign influence campaigns across the world – and tries to find ways to combat them. But the language, ideals, tactics and stories that sustained the struggle for democracy in the 20th century are now used by the very forces they were meant to fight.

. . . .

Consider the Philippines. As my parents were enjoying the pleasures of the KGB in the 1970s, the Philippines were ruled by Colonel Ferdinand Marcos, a US-backed military dictator, who used the army to impose censorship and indulge in spectacular forms of torture, leaving victims’ skulls stuffed with their underpants by the side of the road, so as better to intimidate passersby. Marcos’s regime fell in 1986 when millions came out on the streets demanding an end to censorship and torture.

Today Manila greets you with sudden gusts of rotting fish and popcorn smells, wafts of sewage and cooking oil. Soon you start noticing the selfies. Everyone is at it: the sweaty guy in greasy flip-flops riding the metal canister of a bus; the Chinese girls waiting for their cocktails in the malls. The Philippines has the highest use of selfies in the world, the world’s highest use of social media per capita, the highest use of text messages: 20th-century style censorship would be near impossible to impose here. But the new president, Rodrigo Duterte, is rehabilitating Marcos’s reputation; he has also found new ways of exerting oppression.

Glenda Gloria remembers the Marcos years. In the 1980s she was a student journalist covering the regime’s torture of opposition figures. Her boyfriend had been arrested for running a small independent printing press and had had electrodes connected to his balls.

“The psychological warfare that Marcos mastered is very similar to what is happening now,” Gloria told me. “The difference is, Duterte doesn’t have to use the military to attack the media … How is it made possible? With technology.”

Gloria is managing editor at Rappler, the Philippines’ first online news agency, designed not merely to report on current affairs, but to crowdfund for important causes, and gather vital information to help victims of floods and storms. Experienced journalists like Gloria and editor-in-chief Maria Ressa hired 20-year-olds who knew about social media. When you walk into Rappler’s orange, open plan office you notice how young and largely female the staff are, with a small band of older journalists overseeing them with a hint of matronly severity. In Manila they are known as “the Rapplers”.

When Duterte decided to stand in the presidential election of 2015 he and Rappler seemed made for each other. A mayor from a provincial town with a reputation for being tough on drug offences, Duterte got relatively little TV time and so focused on social media. When Rappler hosted a Facebook presidential debate, he was the only candidate to turn up. It was an overwhelming success. His message – to vanquish drug crime – was catching on. Rappler reporters found themselves repeating his soundbites about the “war on drugs”. When Duterte later went on his killing spree, they would regret using the term “war”. It helped to normalise his actions: if this was a “war”, then casualties became more acceptable.

. . . .

When Rappler began to report on Duterte’s killings the site’s carefully curated online community suddenly turned on it. At one point there were 90 messages an hour: claims that Rappler was making up the deaths, that it was in the pay of Duterte’s enemies, that it was all “fake news”. The messages were like an infestation of insects, swarming into email inboxes and descending like a scourge on to the site’s community pages. Rappler journalists were shouted at in the malls: “Hey, you – you’re fake news! Shame on you!” Hashtags calling for the arrest of Ressa began to trend. The government launched a court case against her. She walked around town with bail money on her. As soon as one case was thrown out another would appear. International human rights groups call them politically motivated.

After several months of this onslaught, the Rapplers dedicated themselves to making sense of the attacks. First to catch their eye were the Korean pop stars. They kept appearing in their online community, commenting on how great Duterte was. How likely was it that Korean pop stars would be interested in Filipino politics? When they checked out the comments the pop stars were making they matched one another word for word: obviously fake accounts, most likely controlled from the same source.

They ran a program that scoured the internet to see who else was using the same language. They found other accounts repeating the same phrases. These looked more realistic, claiming to be real Filipinos with real jobs. The Rapplers began researching each one individually, calling their purported places of employment. No one had heard of them. Altogether they found 24 well disguised but fake accounts repeating the same messages at the same time and reaching an audience of 3 million. This was a coordinated attack. But proving who was behind it was near impossible.

Gloria remembers how in Marcos’s time you could see the enemy. There was a sort of predictability: they could kill you, or you could skip town, contact a lawyer, write to a human rights group, take up arms. You knew who the agents were, who was coming for you, who your enemy was. But now? You couldn’t tell who you were up against. They were anonymous, everywhere and nowhere. How could you fight an online mob? You couldn’t even tell how many of them were real. And of course this allowed the government to claim they had nothing to do with these campaigns. Wasn’t it just a question of concerned citizens exercising their right to free speech?

. . . .

Alberto Escorcia is a social media wizard and has helped coordinate some of the largest anti-corruption protests in Mexico over the last half decade. He and his friends started with pranks to provoke the police: after students were beaten by police officers, they went on silent marches and staged lie-ins, where they stretched out supine on the street, blocking the road. In time, he realised that if he knew in advance which subjects brought people together, and which words strengthened the interconnections between people, he would be able to “summon up” and strengthen protests. He had long believed that, at its best, the internet can connect society with its deepest needs for social change. He was inspired by how Google managed to predict and nip in the bud a flu epidemic when the company saw how many people were looking up flu symptoms at the same time in one place. Something similar, Alberto argued, could be done with political issues. You can tell what people really care about from their searches and online conversations.

But by the time I met Escorcia in Mexico City he looked too tired even to be frightened any more. Someone had been ringing his doorbell then running away again so he couldn’t sleep at night, shining acid-green lasers into his bedroom, pinging online death threats with his name spelt out in bullets – thousands every day so that his phone vibrated with alerts 24/7, turning it into an instrument of psychological torture. One takes such threats seriously in Mexico. During my visit I was told the story of a social media activist who had run an anonymous Twitter account cataloguing crimes committed by narcos. When the narcos found out who she was they first shot her and then posted her blasted off face on her own Twitter feed: “TODAY MY LIFE HAS COME TO AN END. DON’T MAKE THE SAME MISTAKE AS I DID … I FOUND DEATH IN EXCHANGE FOR NOTHING.”

It wasn’t just the personal threats that Escorcia was worried about – he feared troll farms were doing something more fundamentally damaging. The government was intervening in the relationship between people and their own desire for social change, spamming the internet with messages from fake accounts impersonating support for the government, using part-automated, part-human “cyborg” accounts to distract protesters from organising, sending in social media sock-puppets who pretend to support protesters, and then encourage violence to discredit movements. For 70 years, during the 20th century, Mexico had been a one-party state in which “truth” had been dictated top down. Today bots, trolls and cyborgs could create the simulation of a climate of opinion, which was more insidious, more all-enveloping than the old broadcast media – as it wormed its way into the feeds on your phone and you couldn’t tell whether it was coming from a friend or propagandist.

Link to the rest at The Guardian

In the United States, one of the standard methods of dealing with bad speech was formulated by Supreme Court Justice Louis Brandeis, who advised, in his Whitney v. California opinion in 1927, “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

More from Brandeis:

Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means. They believed liberty to be the secret of happiness, and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.

It should be noted that Brandeis concurred with the unanimous opinion of the Supreme Court that the speech involved was a “clear and present danger” and, thus, could be restricted under Supreme Court precedent. This line of cases was eroded through the twentieth century until a 1969 case titled Brandenburg v. Ohio substantially modified the clear and present danger by adding the requirement that 1) such speech be “directed to inciting or producing imminent lawless action,” and 2) the speech is “likely to incite or produce such action.”

An underlying proposition of the OP is that more speech is not always a good thing when disinformation can be automated.

Plaintiff Had No Duty to “Scour” the Internet for Infringements – Statute of Limitations Did Not Bar Copyright Claim Made 7 Years After Infringement

From InternetCases:

Plaintiff freelance photojournalist sued defendant website publisher for copyright infringement over photos plaintiff took of a luxury maximum security prison in Norway in 2010. Defendants posted the photos on its website in 2011 without permission, in connection with a widely-publicized story of a notorious mass shooter being relocated there. Plaintiff registered the copyright in his photos in 2015 and filed suit in 2018, claiming that he did not learn of the alleged infringement until 2016.

Each party filed motions for summary judgment. Plaintiff claimed that the court should enter summary judgment in his favor because he had a valid copyright to the photographs, and there was no dispute that defendant published several of them without authorization. Defendant asserted that plaintiff’s claims were time-barred by the Copyright Act’s three-year statute of limitations, because he knew, or should have known, of the infringement when interest in the photos spiked following the remand of the alleged mass murderer to the prison where the photos were taken.

. . . .

The court found there was no genuine issue as to any material fact concerning plaintiff’s ownership of the copyright in the photos. And defendant conceded it published the photos without authorization. Defendant had challenged whether plaintiff’s copyright registration covered the photos at issue. Plaintiff had not introduced the deposit materials, but had submitted a sworn statement saying the photos had been included in the registration. The court found the sworn statement to carry the issue – had the defendant filed a motion to compel or sought the deposit materials from the copyright office, it may have been able to show the photos were not included. But on these facts, it was clear to the court that the copyright registration covered the photos.

. . . .

The court denied defendant’s motion for summary judgment, finding that the copyright infringement claims were not barred by the statute of limitations. Civil actions for copyright infringement must be “commenced within three years after the claim accrued.” 17 U.S.C. § 507(b). The Second Circuit has stated that the “discovery rule” governs when the statute of limitations begins to run: an infringement claim does not ‘accrue’ until the copyright holder discovers, or with due diligence should have discovered, the infringement.

Link to the rest at InternetCases

Court Rules Amazon Can Be Held Liable for Third-Party Sales

From The Hill:

A federal appeals court on Wednesday ruled online retail giant Amazon can be held liable for the products sold by third-party sellers on its platform.

The 3rd U.S. Circuit Court of Appeals ruled 2-1 that customers can sue Amazon when they buy defective products from its platform, even if Amazon did not make those products.

The decision could leave Amazon vulnerable to a slew of lawsuits.

The case before the appeals court, though, involved a plaintiff who was in Pennsylvania, and the appeals court carefully noted that it was finding Amazon liable under that state’s strict product liability laws.

Amazon has argued that it does not count as a “seller” because it merely provides the platform, but the appeals court on Wednesday said it disagrees.

“Amazon … plays a large role in the actual sales process,” Circuit Judge Jane Richards Roth, a Reagan appointee, wrote in the opinion. “This includes receiving customer shipping information, processing customer payments, relaying funds and information to third-party vendors, and collecting the fees it charges for providing these services.”

. . . .

The case in question involves a woman named Heather Oberdorf, who bought a leash from Amazon that turned out to be defective. During a walk with her dog in 2015, the leash malfunctioned and hit Oberdorf’s face, leaving her permanently blind in her left eye, according to the filing.

Oberdorf, who was in Pennsylvania at the time of the incident, bought the leash from a seller on Amazon called “The Furry Group,” but neither Oberdorf’s legal team nor Amazon have been able to get in touch with them since 2016.

Amazon is the country’s most valuable retail company and about half of the items sold on its online retail platform are from third-party sellers.

Two federal appeals courts have previously ruled that Amazon cannot be held liable for products from third-party sellers, but the federal appeals court in Philadelphia reversed the latest lower court decision.

Link to the rest at The Hill

The appellate court reversed the decision of the trial court in this matter. Here is the relevant portion of the trial court’s decision which relieved Amazon of any liability under Pennsylvania’s laws:

Like an auctioneer, Amazon is merely a third-party vendor’s “means of marketing,” since third-party vendors—not Amazon—”cho[o]se the products and expose[ ] them for sale by means of” the Marketplace. Because of the enormous number of third-party vendors (and, presumably, the correspondingly enormous number of goods sold by those vendors) Amazon is similarly “not equipped to pass upon the quality of the myriad of products” available on its Marketplace. And because Amazon has “no role in the selection of the goods to be sold,” it also cannot have any “direct impact upon the manufacture of the products” sold by the third-party vendors.

. . . .

The Amazon Marketplace serves as a sort of newspaper classified ad section, connecting potential consumers with eager sellers in an efficient, modern, streamlined manner. Because subjecting it to strict liability would not further the purposes of § 402A, as revealed by Musser and other Pennsylvania cases, it cannot be liable to the Oberdorfs under a strict products liability theory.

. . . .

Section 230 of the Communications Decency Act (“CDA”) states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”Amazon argues that the Oberdorfs’ claims attempt to treat Amazon “as the publisher or speaker” of information provided by The Furry Group—i.e. , “as the publisher or speaker” of the product information provided to Amazon by that third-party vendor—and are therefore barred by § 230.

. . . .

Courts have interpreted § 230 expansively, noting that the immunity provided by that section “does not depend on the form of the asserted cause of action[, but] rather … on whether the cause of action necessarily requires that the defendant be treated as the publisher or speaker of content provided by another.” In Jane Doe No. 1 v. Backpage.com LLC , for example, three victims of sex trafficking sued an online classified ad website, alleging that they were trafficked through ads listed on the website by third parties. The plaintiffs argued that the website was liable for their injuries because it deliberately created a forum to facilitate such ads.Rejecting this argument, the United States Court of Appeals for the First Circuit determined that the plaintiffs were attempting to hold the website liable “as the publisher or speaker” of third-party content (the sex trafficking ads), and held that the claims were therefore barred by § 230.

. . . .

Since the Oberdorfs’ claims for strict products liability, misrepresentation, and breach of warranty have all been disposed of supra , this Court need only consider Amazon’s CDA argument with respect to the Oberdorfs’ negligence and negligent undertaking claims. Although the Complaint frames those claims broadly, it is clear from the Oberdorfs’ papers that they are, in fact, attempting to hold Amazon liable for its role in publishing an advertisement for The Furry Group’s product.In other words, the Oberdorfs are attempting to “treat[ Amazon] as the publisher or speaker of … information provided by” The Furry Group. Therefore, these claims are barred by § 230 of the CDA, and summary judgment will be granted in favor of Amazon on both Counts III of the Oberdorfs’ Complaint.

Here’s a link to the entire trial court decision

Here are some of the relevant portion of the Appellate Court’s decision reversing the trial court’s decision (PG has removed all legal citations to cases and statutes to make reading the opinion easier. The original opinion is packed with them if you’re interested):

Amazon contends that, just as every item offered at an auction house can be traced to a seller who may be amenable to suit, every item on Amazon’s website can be traced to a third-party vendor. However, Amazon fails to account for the fact that under the Agreement, third-party vendors can communicate with the customer only through Amazon. This enables third-party vendors to conceal themselves from the customer, leaving customers injured by defective products with no direct recourse to the third-party vendor. There are numerous cases in which neither Amazon nor the party injured by a defective product, sold by Amazon.com, were able to locate the product’s third-party vendor or manufacturer.

In this case, Amazon’s Vice President of Marketing Business admitted that Amazon generally takes no precautions to ensure that third-party vendors are in good standing under the laws of the country in which their business is registered. In addition, Amazon had no vetting process in place to ensure, for example, that third-party vendors were amenable to legal process. After Oberdorf was injured by the defective leash, neither she nor Amazon was able to locate The Furry Gang. As a result, Amazon now stands as the only member of the marketing chain available to the injured plaintiff for redress.

. . . .

The second factor we consider is whether “imposition of strict liability upon the [actor would] serve as an incentive to safety.”

In Musser, the Pennsylvania Supreme Court “fail[ed] to see how the imposition of strict liability [on the auction house] would be more than a futile gesture in promoting the manufacture and distribution of safer products,” chiefly because the auction house was “not in the business of designing and/or manufacturing any particular product or products.”

Amazon asserts that it does not have a relationship with the designers or manufacturers of products offered by third-party vendors. Therefore, it contends that imposing strict liability would not be an incentive for safer products. Again, we disagree with Amazon.

Although Amazon does not have direct influence over the design and manufacture of third-party products, Amazon exerts substantial control over third-party vendors. Third-party vendors have signed on to Amazon’s Agreement, which grants Amazon “the right in [its] sole discretion to . . . suspend, prohibit, or remov[e], any [product] listing,” “withhold any payments” to third-party vendors, “impose transaction limits,” and “terminate or suspend . . . any Service [to a third-party-vendor] for any reason at any time.”

Therefore, Amazon is fully capable, in its sole discretion, of removing unsafe products from its website.

Imposing strict liability upon Amazon would be an incentive to do so.

. . . .

In Musser, the court indicated that the auctioneer was not in a better position than the consumer to prevent the circulation of defective products because it lacked an “ongoing relationship with the manufacturer from which some financial advantage inures to [its] benefit . . ..” Similarly, in Nath v. National Equipment Leasing Corp., the Pennsylvania Supreme Court held that, because financing agencies perform only a “tangential” role in the sales process, “their relationship with a particular manufacturer does not, in the normal course, possess the continuity of transactions that would provide a basis for indirect influence over the condition and the safety of the product.” Here, while Amazon may at times lack continuous relationships with a third-party vendor, the potential for continuing sales encourages an on-going relationship between Amazon and the third-party vendors.

. . . .

Moreover, Amazon is uniquely positioned to receive reports of defective products, which in turn can lead to such products being removed from circulation. Amazon’s website, which Amazon in its sole discretion has the right to manage, serves as the public-facing forum for products listed by third party vendors. In its contract with third-party vendors, Amazon already retains the ability to collect customer feedback: “We may use mechanisms that rate, or allow shoppers to rate, Your Products and your performance as a seller and Amazon may make these ratings and feedback publicly available.”

Third-party vendors, on the other hand, are ill-equipped to fulfill this function, because Amazon specifically curtails the channels that third-party vendors may use to communicate with customers: “[Y]ou may only use tools and methods that we designate to communicate with Amazon site users regarding Your Transactions . . ..”

. . . .

The fourth factor we consider is whether Amazon can distribute the cost of compensating for injuries resulting from defects.

In Musser, the court “acknowledge[d] that it would be possible for the auctioneer to pass on the costs of imposing strict liability upon him; possibly as [the injured plaintiff] suggests, by indemnity agreements between the auctioneer and the seller.” However, although the court found that extending the meaning of “seller” to include the auctioneer would provide another remedy for injured customers, the court demurred, stating that this would “only marginally” promote the “purpose of the policy considerations” underlying § 402A.37

In this case, however, Amazon has already provided for indemnification by virtue of a provision in the Agreement:

You release us and agree to indemnify, defend, and hold harmless us, our Affiliates, and our and their respective officers, directors, employees, representatives, and agents against any claim, loss, damage, settlement, cost, expense, or other liability (including, without limitation, attorneys’ fees) . . . .

Moreover, Amazon can adjust the commission-based fees that it charges to third-party vendors based on the risk that the third-party vendor presents.

Amazon’s customers are particularly vulnerable in situations like the present case. Neither the Oberdorfs nor Amazon has been able to locate the third-party vendor, The Furry Gang. Conversely, had there been an incentive for Amazon to keep track of its third-party vendors, it might have done so.

The fourth factor also weighs in favor of imposing strict liability on Amazon. Thus, although the four-factor test yielded a different result when applied by the Musser court to an auction house, all four factors in this case weigh in favor of imposing strict liability on Amazon.

The decision of the Appeals Court was made by a panel of three judges. Two judges decided Amazon should be held liable for the injuries. One of the judges disagreed. Following are a few excerpts from that judge’s dissenting opinion:

This case implicates an important yet relatively uncharted area of law. No Pennsylvania court has yet examined the product liability of an online marketplace like Amazon’s for sales made by third parties through its platform. Our task, as a federal court applying state law, is to predict how the Pennsylvania Supreme Court would decide the case. . . .   We must take special care “to apply state law and not . . . to participate in an effort to change it.”

. . . .

In my view, well-settled Pennsylvania products liability law precludes treating Amazon as a “seller” strictly liable for any injuries caused by the defective Furry Gang collar.

. . . .

A “seller” in Pennsylvania is almost always an actor who transfers ownership from itself to the customer, something Amazon does not do for Marketplace sellers like The Furry Gang. For similar reasons, every court to consider the question thus far has found Amazon Marketplace not a “seller” for products liability or other purposes; several of those courts have done so under products liability regimes similar to Pennsylvania’s.

. . . .

Amazon is a multinational technology company. Among other ventures, it hosts online sales. Products are offered for sale at Amazon.com in three primary ways. First, Amazon sources, sells, and ships some products as seller of its own goods. Second, third-party sellers sell products through Amazon Marketplace “fulfilled by Amazon,” purchasing Amazon’s services in storing and shipping their products. Third, at issue here, third-party sellers sell products through Amazon Marketplace without additional “fulfillment” services. These sellers, like The Furry Gang, supply and ship products directly to consumers without ever placing the items in Amazon’s possession.

. . . .

Amazon envisions its Marketplace as an open one. It reserves the right to remove sellers’ listings or terminate Marketplace services for any reason and requires sellers to represent they are in good legal standing, but it does not apply a general vetting process to all sellers to identify those who do not in fact meet that standard. Amazon also does not narrow the Marketplace’s offerings by limiting the number of sellers who may offer each type of product: any number of sellers may register. In displaying products to customers, Amazon distinguishes products sold through the Marketplace from those sold directly by Amazon, identifying the seller responsible for the item in a “sold by” line placed prominently
next to the price and shipping information. The seller’s name also appears on the order confirmation page, before the customer clicks “place your order” to finalize the purchase. . . . Amazon’s conditions of use for customers affirm the distinction, explaining, in Amazon Marketplace purchases from third-party sellers, “you are purchasing directly from those third parties, not from Amazon. We are not responsible for examining or evaluating, and we do not warrant, the offerings of any of these businesses or individuals.” . . . citing Amazon, Conditions of Use

. . . .

A customer on Amazon Marketplace buys a product that has been chosen, sourced, and priced by the third-party seller. The seller contractually commits to “ensure that [it is] the seller of each of [its] Products” listed for sale. The relationship reflected in the agreement between Amazon and the seller is one of “independent contractors.”

. . . .

A seller under Pennsylvania product liability law is one “engaged in the business of selling . . . a product.” . . . . In nearly all cases, “selling” entails something Amazon does not do for Marketplace products: transferring ownership, or a different kind of legal right to possession, from the seller to the customer.

. . . .

Amazon Marketplace, like the auctioneer in Musser, takes an important part in assisting sales, but is “tangential” to the actual exchange between customer and third-party seller. Like an auctioneer, Amazon Marketplace provides the “means of marketing” to a third-party seller who accomplished the “fact of marketing” when it “chose the products and exposed them for sale.” Amazon Marketplace’s services to any individual seller for an individual product are not “undertaken specifically,” but rather, as with the auctioneer, provided on essentially similar terms to a large catalogue of sellers.  And like an auctioneer, Amazon Marketplace never owns, operates, or controls the product when it assists in a sale.

Here’s a link to the Appeals Court Decision

PG thinks the trial court got this right and the court of appeals became too entranced with Amazon’s size and power, thus deciding that Amazon had plenty of money to pay damages and ignoring a careful structuring of the relationship between Amazon and its Marketplace sellers which Amazon created and disclosed to customers who were contemplating a purchase from a Marketplace seller. This sort of relationship, if respected by courts, helps Amazon maintain low prices for its customers.

As one of many illustrations of the old legal maxim, “Hard cases make bad law,” PG believes the majority in the Court of Appeals focused on the size and wealth of Amazon together with the disappearance of the actual seller of the defective product and stretched more than a little to reach a decision whereby the injured plaintiff would receive some compensation from the only party available who had the money to pay such compensation.

While this may seem to result in a just outcome in a particular case, if it becomes binding precedent for determining the outcome of other cases, it is (in PG’s ineluctably humble opinion) a bad idea that will result in more companies besides Amazon being hit with damages just because they’re big instead of because they have behaved in an illegal manner (or maybe because they’re not big, but have a bit of money to pay to an injured person).

Microsoft’s Ebook Apocalypse Shows the Dark Side of DRM

From Wired:

Your iTunes movies, your Kindle books—they’re not really yours. You don’t own them. You’ve just bought a license that allows you to access them, one that can be revoked at any time. And while a handful of incidents have brought that reality into sharp relief over the years, none has quite the punch of Microsoft disappearing every single ebook from every one of its customers.

Microsoft made the announcement in April that it would shutter the Microsoft Store’s books section for good. The company had made its foray into ebooks in 2017, as part of a Windows 10 Creators Update that sought to round out the software available to its Surface line. Relegated to Microsoft’s Edge browser, the digital bookstore never took off. As of April 2, it halted all ebook sales. And starting as soon as this week, it’s going to remove all purchased books from the libraries of those who bought them.

Other companies have pulled a similar trick in smaller doses. Amazon, overcome by a fit of irony in 2009, memorably vanished copies of George Orwell’s 1984 from Kindles. The year before that, Walmart shut down its own ill-fated MP3 store, at first suggesting customers burn their purchases onto CDs to salvage them before offering a download solution. But this is not a tactical strike. There is no backup plan. This is The Langoliers. And because of digital rights management—the mechanism by which platforms retain control over the digital goods they sell—you have no recourse. Microsoft will refund customers in full for what they paid, plus an extra $25 if they made annotations or markups. But that provides only the coldest comfort.

“On the one hand, at least people aren’t out the money that they paid for these books. But consumers exchange money for goods because they preferred the goods to the money. That’s what happens when you buy something,” says Aaron Perzanowski, professor at the Case Western University School of Law and coauthor of The End of Ownership: Personal Property in the Digital Economy. “I don’t think it’s sufficient to cover the harm that’s been done to consumers.”

. . . .

Presumably not many people purchased ebooks from Microsoft; that’s why it’s pulling the plug in the first place. But anyone who did now potentially has to go find those same books again on a new platform, buy them again, and maybe even find a new device to read them on. For certain types of readers, particularly lawyers and academics, markups and annotations can be worth far more than $25. And even if none of that were the case, the move rankles on principle alone.

“Once we complete a transaction you can’t just reach into my pocket and take it back, even if you do give me money,” says John Sullivan, executive director of the nonprofit Free Software Foundation. “It’s not respecting the freedom of the individual.”

. . . .

More than anything, Microsoft’s ebook rapture underscores the hidden dangers of the DRM system that underpins most digital purchases. Originally intended as an antipiracy measure, DRM now functions mostly as a way to lock customers into a given ecosystem, rather than reading or viewing or listening to their purchases wherever they want.

. . . .

“This is why we call DRM media and devices defective by design, or broken from the beginning. There’s self-destruction built into the whole concept,” Sullivan says. “This is still the prevalent way of distributing media. That companies still pull the plug is still surprising and frustrating.”

Link to the rest at Wired

PG gently suggests that any lawyer who annotates a copy-protected ebook which resides online is not terribly wise.

PG probably has a moral (but not legal) obligation to remind one and all that, in the click-to-accept license agreement they entered into when they bought their MS ebooks, purchasers almost certainly agreed to not circumvent any copy protection software locking those ebooks up.

He will also remind the same group that, regardless of whether the license specifically prohibited circumvention, hacking copy protection is still illegal under the Digital Millenium Copyright Act, specifically 17 U.S.C. 1201. Violating this prohibition carries both civil and criminal penalties.

That said, PG suspects Microsoft will turn a blind eye to any evidence those who licensed ebooks from them have hacked the copy protection in order to make copies of the text.

However, publishers of the ebooks may not react in the same way.

PG hasn’t checked into the nature of Microsoft’s ebook copy protection or the copy protection used by publishers of ebooks sold by it, but, at least some copy protection software (I’m looking at you, Adobe) has, at least in past days, collected information about ebooks residing on computers, tablets, ereaders, etc., and sent it back to the mother ship. In 2014, this included ebooks using Adobe’s copy protection software and other ebooks that did not use Adobe software. See this post and related posts on The Digital Reader for the gory details.

PC suggests that those who have purchased ebooks from Microsoft decide whether they care about losing any of them. If the answer is yes, these readers can use some or all of the money they receive from MS to buy replacement copies somewhere more reliable.

If any visitors have made more than cursory annotations to any Microsoft ebooks, PG suggests the safest route from a DMCA violation standpoint would be to contact the publishers of those ebooks and ask for their help in salvaging the text and annotations. (Go ahead and contact the authors, too. They may have more reputational capital at stake than the publishers do.)

PG thinks Microsoft deserves a lot of heat for orphaning ebooks it sold without a way for purchasers to preserve access to them. For example, did MS think to contact Amazon to see if it could provide MS book-buyers with copies of the same titles from Amazon? If not, why not?

Why not throw some brains into a solution that won’t alienate Microsoft customers instead of refunding the money the customers spent plus $25? If the customers wanted money instead of books, they probably wouldn’t have purchased any books from MS in the first place.

For PG, nothing else has so effectively communicated the message, “We’re Microsoft and you’re not,” for a long time.

For the record, PG has not ever purchased any ebooks from Microsoft and is unlikely to do so in any future life.

If anyone does attempt to salvage MS ebooks, PG would be interested in any details of their experience they might care to share. If they don’t want to leave a comment, they can email PG via the Contact link on TPV.

If PG were advising any of the publishers (particularly publishers of books for readers in various learned professions), PG would suggest that the publishers do everything possible to collect contact information regarding any of their ebook purchasers impacted by Microsoft’s decision and take affirmative steps to communicate with those readers and offer to provide replacement ebooks in one of the other ebook formats in common use.

 

Rethinking the Writing Business

From Kristine Kathryn Rusch:

When the disruption hit the publishing industry ten years ago, I watched with a wary eye. After I finished The Freelancer’s Survival Guide in the summer of 2010, I repurposed this weekly blog to help me understand the changes the publishing industry was undergoing. It seemed, in those heady days, that everything changed daily. And there was a large contingent of brand-new writers who knew so much better than the rest of us how revolutionary this indie publishing thing would be.

Most of those writers—the hoards that used to come screaming (literally) to this site every Saturday to denounce me and tell me what an idiot I am and how wrong I was—are gone now. They quit the business not because they weren’t earning money—most of them earned a boatload—but because they couldn’t handle what they had set up.

Many of them published rapidly and followed an insane publishing schedule that couldn’t be maintained in the face of real life. Some based everything they had and everything they knew on Amazon algorithms, only to be shocked when Amazon persisted in changing up those algorithms.

Others couldn’t handle the financial ups and downs of freelancing and some, frankly, didn’t give themselves a chance to succeed. They saw others making thousands every month while they were making coffee money, and decided that they’d never succeed and quit without ever completely learning their craft or building up an audience.

. . . .

New, hot, and trendy has a shorter shelf life these days than it did, and I wasn’t sure why. There’s a lot about this new world of publishing, as I called it, that I couldn’t figure out.

. . . .

We’ve been doing this wrong.

By this, I mean the writing business post-Kindle. We’re all approaching our business like we’re still in the publishing business. But we’re not. We’re part of the entertainment industry, and that entails a lot more than we think it does.

Let me see if I can retrace some of this thinking, so that I don’t just spring my ideas on you and have you balk at them.

I signed up for the Licensing University classes connected to the [Las Vegas Licensing] Expo. I saw those last year, and felt that I would miss a huge opportunity if I failed to attend.

This year, I looked at the roster of classes, and promised myself I could leave any class that was too basic for me. The “Is Your Brand Ready For Licensing” was a case in point (although I didn’t realize it until later). That was a copyright/trademark basics course that falls into the well-duh category for me, but is probably necessary for most first-time attendees at the Expo (and for most writers as well).

But the Basics of Licensing class? Holy Crap-Poodles. I figured I’d sit there for ten minutes before going out to the floor to look around. Instead, I took 30 pages of notes. (In future posts, I will deal with much of what I learned on a detail level.)

That class laid out the basics of a licensing deal, while acknowledging that each deal is different.

Let’s back up. We writers are creators of intellectual property. We have the property to license. We are the licensors. We’re looking for licensees. Okay? Got that?

The terms of a basic licensing deal includes these elements:

  • A Royalty
  • An Advance Payment Against That Royalty
  • Net Sales Definition
  • Some Kind of Reporting Process
  • Termination
  • Insurance/Warrantees/Indemnification
  • Jurisdiction

A basic licensing deal includes a lot more than that, things like minimum royalty guarantees, an audit schedule, minimum performance threshold, quality and approvals, advertising and marketing requirements, and so on.

The licensor is a participant in all of that. An active participant, who can terminate if, for example, the quality of the product (based on the sample) doesn’t come up to snuff after several tries.

I remember thinking in the middle of that class that the publishing agreements that I signed back in the 1990s had a lot more in common with a standard licensing agreement than standard publishing contracts do now. In fact, there was a lot in the old publishing contracts that were just like a licensing agreement. In fact, the old publishing contracts were licensing agreements with the pro-licensor stuff (the stuff that benefits the licensor/writer/creator) taken out.

. . . .

Fast-forward through the afternoon to the class on How To Negotiate A Licensing Deal, which was listed as a negotiation class, without the “licensing deal” part added in. I wrote a book on negotiation, for godssake. I’m damn good at negotiating. I figured I’d be leaving this one early as well.

Nope. Another 30+ pages of notes. With two surprises added in.

First, from a passing comment on royalty rates.

In licensing, the royalty rates can vary from 2% to 20% of the net sales price (usually wholesale, but that’s changing depending on distribution). One of the instructors (an agent) mentioned that really big brands with a lot of clout like Disney can get the 20% royalty without a lot of pushback because their brand is so valuable.

. . . .

Once upon a time, I was a work-for-hire writer, and one of the properties I wrote work-for-hire was Star Wars. I got a 2% royalty on the books published (see above).

In most work-for-hire publishing projects, the royalty rate gets split between the licensor who created the intellectual property and the writer who does the actual work on writing the novel. I do not know what Bantam paid LucasFilm for those early books. It might have been 10%, it might have been 15%. I do know it was less than 20%. At the time, you see, Star Wars was considered moribund. The books, Tim Zahn’s first trilogy in particular, led the entertainment industry to realize that there was a hungry audience for more Star Wars. The revival of the brand dates from that very first publication.

So I know that, in those days, LucasFilm didn’t have the Disney-level clout that it would later achieve. Which had an impact. Because, when it came time to renegotiate the license with Bantam, LucasFilm asked for a 20% royalty.

Bantam balked. They claimed they couldn’t make a profit. They claimed they couldn’t pay their writers. They claimed they wouldn’t get writers.

So, LucasFilm threatened to pull out, and the dance began. LucasFilm came down to 19% which still didn’t give Bantam enough room to pay the writers from the royalty rate (the standard way that writers did/do business in traditional publishing).

Bantam came with a compromise. Rather than a 2% royalty, they’d pay the authors $60-90,000 for the book, which was what those books earned out at in those days. Those payments would be guaranteed, but they’d be a flat fee. So if the books sold better than that, the writers would get no more money. If the books sold less, the writers would get more than they usually would.

Business-minded writers realized this: that if they took their upfront payment (which Bantam was offering in four payments) and banked it, they’d make more than they would off the 2% royalty rate. (Money in hand is worth more than money promised. Money in hand allows things like paying down credit cards rather than charging them, and having an emergency fund, rather than borrowing, and so on.)

A bunch of us agreed, our contracts were in the works, and then the idiots at the Science Fiction Writers of America got their undies in a bundle and denounced the entire deal and faxed a protest letter to LucasFilm, naming every single Star Wars writeras agreeing, even those who didn’t agree (and had threatened them if they used our name, like me) and even those who weren’t members (like me). That piece of idiocy cost me at least $90,000 if not more, because I was slated to write a bunch of books, and LucasFilm canceled all communication with me and cut me out of everything, just like they did with all the other authors named.

The books went on without us. And I just thought it a weird deal—that LucasFilm wanted 20%–believing what Bantam put out there (that LucasFilm was greedy) and what SFWA put out there (that LucasFilm was greedy) rather than understanding that LucasFilm was treating the books as a standard licensed product.

My brain was spinning as the negotiation class went on, because I finally understood the other side—the other side not being Bantam Books, but LucasFilm. I was just a sorry little contractor caught in the middle of a negotiation for a licensing deal, with a stupid idiotic third-party organization sticking its ignorant foot into the mess.

. . . .

The royalty rates class looked at all kinds of things that can have an impact on royalty rates, including net sales.

In that discussion, one of the agents on the panel clicked the next slide in the deck, which showed Publishing. She made a face, and said, with great disbelief, In publishing, the product is 100% returnable, so you have to figure out how to cap the losses.

She went on to talk about how difficult traditional publishing was to work with because of all the quirks in its contracts.

But I sat there and found my brain spinning again. When I was a baby writer, my book agents could get a minor cap on returns, limiting them to only two or three years. After that, the publisher had to eat the returns.

A standard licensing deal has a three-year term, which meant that publishers were already set up to cap returns earlier than that.

The licensing agent also went on to talk about how she had to explain basic licensing to her publishing partners, and how she had to hold them to the fire to get them to agree to a full royalty for all the participants (meaning that if the brand was say, a star quarterback for the NFL, the NFL would get its share of the royalty and the star quarterback would get his—so maybe a 50-50 split of a 20% royalty—meaning the author would write for a flat fee).

I immediately got retroactive anger.

Licensors from outside the publishing industry—that is, nonwriters. Celebrities. Grumpy Cat—got not just an advance against a substantial royalty, but a term-limited contract, and minimum royalty payment guarantees, and guaranteed marketing/advertising budgets, and the ability to easily and routinely audit the publisher, and, and, and…

. . . .

The licensing professionals who worked for a nonwriter licensor, like LucasFilm, got a licensing deal that would make writers and their book agents fall over in stunned surprise. Simply by using industry standard.

Okay, got all of that?

In the past, writers have gone begging to book agents, to publishers, to comic companies, to gaming companies, hoping to get someone to “take a chance” on their writing.

Writers weren’t acting as brand owners, licensors, people in control of their IP, asking for a standard licensing arrangement. Writers were beggars, which put them in a terrible long-standing position with the publishers.

. . . .

The book, the published book, is not the holy grail.

The story, the thing that the writer has created, is the holy grail. Before publication of any kind.

Because publication is a license. Whether you do it yourself and upload to Amazon (Direct to Retail, is what that’s called) or whether you go through a traditional publisher (Business to Business, is what that’s called {and notice that the businesses are on equal footing in that definition}),  you are licensing a tiny portion of your copyright to make distribution of some product (in this case a book) possible.

We’ve been teaching for years that publication is a license. Not a “sale” because you don’t lose the copyright. You license it.

But Dean and I and damn near every other writer out there (with only a handful of exceptions throughout the last 100 years) have not gone any farther than that. We haven’t thought about the published book as being a single licensed product.

We’ve been conditioned by our upbringing in the business culture of the previous century to think of the published book as the be-all-and-end-all of everything we did.

. . . .

We are not in the publishing industry. We are in the entertainment industry.

Link to the rest at Kristine Kathryn Rusch

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

For PG, Kris is one of the most interesting commentators on the publishing business, traditional and modern, and he always appreciates her Business Musings posts.

In these posts, Kris often looks above and beyond agents and publishers, KDP, etc., etc. in a way most authors do not.

In a former legal life, PG represented some software and technology companies whose products were sometimes licensed to very large business organizations, including Goldman Sachs, Morgan Stanley, Merrill Lynch, Fidelity Investments, Apple, IBM, Oracle, Disney, Hallmark, Intel, Hewlett-Packard, and American Express.

(For context, at an earlier stage in his legal career, PG also represented abused spouses, dairy farmers, the tenants of small-time slumlords, people who wanted a divorce and/or needed to file for bankruptcy, a couple of arsonists, drunk drivers and people who couldn’t afford to pay an attorney and got help from Legal Aid.)

PG provides the big business list not to show what a big deal he is or was, but simply to demonstrate the variety of different licensing agreements he has seen outside of the traditional publishing business.

From a legal standpoint, as Kris says, a publishing contract is not a special snowflake, it’s a license of intellectual property, specifically, the copyright to a book which is owned by the author. Copyrights to software are what Microsoft owns and licenses to everybody who buys and uses MS Word, Excel, Windows, etc.

Although PG has not seen very many publishing contracts that acknowledge the fact, a traditional publishing contract also includes a sort-of implied license to the author’s right of publicity, sometimes called personality rights (which may include individual’s image, personal data and other generally private information).

However, most publisher-provided publishing contracts don’t look much like licensing agreements used elsewhere in the business world. Publishing agreements have little quirks that would seem strange to any attorney accustomed to seeing licensing agreements for technology or almost anything else.

PG understands the principle of customs of the trade, assumptions that govern niche businesses and the agreements they make. For example, in another case from PG’s olden days, he learned all about the New York City garment business and the strange ways it operates.

However, trade publishing and, to an even greater extent, academic and professional publishing still operate as if ebooks and other epublications have never existed. Even more important for authors, many publishers operate as if the cost of publishing was still based upon the expense and compensation structure that existed when printed books and journals were the only way to disseminate knowledge and long-form writing.

PG suggests that even for traditionally-published authors, Amazon has provided a great service by offering both self-publishing and Amazon Press as alternative methods of reaching readers. Absent Amazon’s influence, publishers would still be operating as if it were 1955 and today’s authors would be earning much less and accepting it as the author’s burden in life.

Yet, from a legal and commercial viewpoint, traditional publishing is still a screwy business and authors bear most of the burden of its bizarre practices.

PG repeats the admonition of Kris in the OP –

The book, the published book, is not the holy grail. We are not in the publishing industry. We are in the entertainment industry.


Spotify: We ‘Overpaid’ Songwriters and Their Publishers in 2018, and We Would like Our Money Back

From Music Business Worldwide:

If you hadn’t noticed, tensions between the music publishing community and Spotify have taken a turn for the sour in recent months.

This all began in March when Spotify, alongside other music streaming operators like SiriusXM/Pandora, Google and Amazon, lodged an appeal against mandated pay rises for songwriters and publishers in the US.

The headline news about that pay rise, decided by the US Copyright Royalty Board, was that mechanical streaming payouts from the likes of Spotify would rise by 44% or more between 2018 and 2022.

It turns out, however, that there was some additional and under-reported complexity to the CRB decision concerning Spotify’s student discount offers and its family plan bundles – which allow up to six family members to stream Premium Spotify for a single price of just $14.99 a month.

“According to the new CRB regulations, we overpaid most publishers in 2018… rather than collect the 2018 overpayment immediately, we have offered to extend the recoupment period through the end of 2019.”

Spotify spokesperson

Because of this additional complexity, Spotify has now calculated that, retrospectively, according to the CRB decision, many music publishers actually owe it money for 2018, due to an overpayment based on the prior rates. And guess what? It wants that money back.

Spotify told the publishers the news this week and, as you can imagine, these companies – already up in arms over Spotify’s CRB appeal – are fuming about it.

One senior figure in the music publishing industry told MBW: “Spotify is clawing back millions of dollars from publishers in the US based on the new CRB rates that favor the DSPs, while appealing the [wider CRB decision]. This puts some music publishers in a negative position. It’s unbelievable.”

Spotify isn’t expecting the publishers to hand over the money that it’s owed right away; instead, this negative balance will be treated as an advance by the company, which will be recouped from its 2019 royalty payouts to publishers (and, by association, their songwriters).

. . . .

David Israelite, the CEO of the National Music Publishers Association who has consistently and publicly decried Spotify’s CRB appeal, told MBW in response to Spotify’s request for reimbursement from the publishers: “I find it so hypocritical for a digital service that is appealing the CRB decision to then take advantage of the parts of that decision that benefit it. I guess we shouldn’t be surprised.”

Link to the rest at Music Business Worldwide

PG says this sounds like the behavior of an organization that holds a monopoly position in the music business.

Google’s Enemies Gear up to Make Antitrust Case

From The Wall Street Journal:

As U.S. officials prepare an antitrust probe of Alphabet Inc.’s Google and possibly other Silicon Valley giants, a loose-knit crew of its rivals is gearing up to help.

In industries from news to travel to online shopping, competitors of Google are readying documents and data in anticipation of meetings with the Justice Department, according to industry representatives.

Many of these companies have long argued that Big Tech platforms illegally abuse their market power. In recent years some of them have found a receptive audience in Europe, where authorities have thrice fined Google for alleged monopolistic practices. Google has paid the fines but is challenging them in court.

Now rivals are stepping up their advocacy in the U.S., where antitrust enforcers recently divvied up the job of examining antitrust concerns at large tech platforms, with the Justice Department preparing a Google probe. The Wall Street Journal reported on the potential probes by the department and the Federal Trade Commission earlier this month, citing people familiar with the matter.

Antitrust lawyers say any probe could take years to complete. Battle lines are already forming. Google is preparing its own data and arguments, the Journal has reported. It also recently overhauled its Washington lobbying operation with an eye toward amplifying the message that its products promote competition and benefit consumers.

. . . .

News Corp, which owns The Wall Street Journal, and other publishers say Google and other tech platforms siphon ad revenue away from content creators.

. . . .

Still more firms haven’t criticized Google publicly, but privately stand ready to provide information to U.S. authorities about practices they view as potentially anticompetitive, according to industry representatives.

“There is a lot more concern that you hear behind closed doors,” said Jason Kint, chief executive of Digital Content Next, a trade association for online publishers that has argued online tech platforms are harming competition and consumers.

. . . .

“We need to assume that internet giants, like any other big companies, will use their assets to maximize profit and strategic value,” said Brian O’Kelley, former chief executive of AppNexus, an advertising technology firm bought by AT&TInc. last year after what he says was an unsuccessful attempt to compete with “the Google Super-monopoly.”

“Either break up the internet giants or force them to treat their component parts at arm’s-length,” he said.

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

From the Journal of Antitrust Enforcement (Oxford University, footnotes omitted):

‘Predatory Pricing’ is a legal concept that refers to business strategies, which are designed to stifle competition within markets by driving prices below cost.

In the economic context, this work argues that the current perception of recoupment is too limited and that it can occur without raising prices post-predation. In particular, it demonstrates that recoupment can be achieved in the post-predation stage by achieving greater technological or volume efficiencies that enable the attainment of a previously unattainable ‘break-even threshold’. Accordingly, this article suggests that in certain circumstances, predatory pricing is a sound business decision with a high probability of successful recoupment.

In the legal context, this work seeks to emphasize that under the Sherman Act, a plaintiff must only establish an injury that resulted from a rival’s below-cost pricing and demonstrate ‘a dangerous probability’ that the competitor will recoup his investment in implementing below-cost prices.2 Legally, price predation is inherently injurious and the plaintiff does not have to demonstrate any implication of the act of predation upon consumer welfare.

. . . .

The last section of this work is an attempt to apply these theoretical insights to Amazon’s current business strategy. First, it is argued that theoretically, it is entirely possible that Amazon is engaging in short-, medium-, or even long-term phases of below average variable cost (AVC) price predation as part of its overall expansion strategy. Secondly, the article maintains that if such predation occurs, it is subsidized by short- and medium-term borrowing. Thirdly, it argues that in the long run, recoupment will occur once Amazon achieves its ‘break-even threshold’ and that this type of recoupment will not necessitate any rise in average prices.

. . . .

The test as proposed by Areeda and Turner is composed of two distinct prongs, which must be satisfied to demonstrate predation.

Under the first prong, the plaintiff has to demonstrate that given the nature and condition of the market in which the alleged predator operates, it was rational for the alleged predator to predict that price predation would prove a profitable strategy. This is not a subjective test that requires evidence of the alleged predator’s intent but rather an objective test that involves a demonstration of objective facts that rendered predation a viable business decision. To satisfy this objective test, the plaintiff must prove the likelihood of recoupment at the onset of the predation campaign. In other words, it must be contended that the present costs of predation at the beginning of predation would have been more than offset by the present value of anticipated future profits.

Under the second prong of the test, the plaintiff needs to demonstrate that in a great share of its sales, the alleged predator’s prices were below an applicable measure of cost. This measure of cost is less rigid and depends on the nature of the alleged predator’s market. In some cases, the AVC will serve as an adequate measure, and in other cases that involve short-run price reduction, marginal costs will become a more reliable indicator.

. . . .

However, unlike Areeda and Turner, who assumed that in some particular cases price predation was a rational business decision, (Robert) Bork dismissed the feasibility of predatory pricing in any and all circumstances. In fact, Bork deemed the entire practice as completely irrational and insisted that the reason for the lack of any palpable proof of price predation in the historical cases of antitrust stemmed from the fact that the practice, for practical reasons, was fundamentally financial suicide.

. . . .

Most importantly, Bork defined Areeda and Turner’s theoretical stage of recoupment as the stage in which a firm would raise its prices in the period that follows predation. This narrow definition of recoupment effectively barred other potential strategies that might still ensure ‘that the losses he [the predator] incurs in the predatory campaign will be exceeded by the profits to be earned after his rivals have been destroyed’. And although Areeda and Turner did not articulate all of the ways in which recoupment can occur, it is clear that they did not construe the term as only encompassing raising prices after the goal of monopolization was achieved.

The first major Supreme Court decision that integrated some elements of the Areeda and Turner test was Matsushita. In the decision, the Court determined that the plaintiff was unable to demonstrate that price predation was a rational decision given the nature of the market in question and that the probability of recoupment was non-existent. Notably, however, this was also the first time that the Court cited Bork’s treatise approvingly on the matter as part of its decision. It can be said that the Court adopted the recoupment requirement from Areeda and Turner, but it also embraced Bork’s unsubstantiated rhetoric regarding the overall likelihood of the phenomena in any and all markets.

. . . .

[Critics of Bork contend] that certain markets may induce predation and render recoupment possible.

. . . .

In other words, both Hovenkamp and Bork’s more vocal critics essentially accept, albeit reluctantly, that recoupment can occur only via a rise in prices. To this date, no scholar in the field of antitrust has openly questioned the assertion that recoupment occurs only when the predator raises his prices in the post-predation period.

. . . .

Bork’s limiting interpretation of the term recoupment that ultimately came to be understood as the term’s sole acceptable construction. Only a rise in prices after predation qualified in his view as a business practice that harms both consumers and the competition. The second reason for this limitation was derived from Bork’s rather practical assumption that only a rise in prices in the post-predation period will render predation itself economically sustainable and therefore rational.

To better understand the difference between the definition of recoupment under the original Areeda–Turner test and Bork’s own understanding, the two definitions must be contrasted. Under the Areeda–Turner test, recoupment can be any corporate action that allows a firm to offset the losses it incurred during the predation period. The recoupment act itself does not need to be harmful to consumers. In other words, according to the Areeda–Turner test that harm does not flow from the act recoupment but rather from the entire practice of price predation that always does.

In contrast, Bork’s view of recoupment was composed of two distinct elements. The first was similar to the one articulated in the Areeda–Turner test. But the second required that the act of recoupment harms itself would harm consumers by the rise in prices. According to Bork, predatory pricing is only harmful to consumers if, and only if, its recoupment phase will also be harmful to consumers.

Link to the rest at Journal of Antitrust Enforcement

For the benefit of anyone who has made it through the typically-legalese sentence construction and paragraph structures of either of the two OP’s, PG will attempt to be simple and direct about his explanations and opinions on the subject, particularly as they apply to Amazon:

  1. As a general proposition, any action by a company that offers consumers lower prices for goods and services (or more valuable goods and services without increasing prices) is beneficial.
  2. The primary object of antitrust laws and regulations should be the protection of competition, not the protection of any particular competitor no matter how large or long-established.
  3. Individuals and organizations that attempt to approach the business of providing goods and/or services to others in an innovative manner (for which customers demonstrate their preference by their patronage) should not be limited or restrained because regulators and judges (who are highly unlikely to be competent to judge the virtues or drawbacks of disruptive technology or business innovations) cannot foresee how the innovative party will be able to harvest value from its innovations in the future. Today’s “cut-throat competition” may be tomorrow’s ordinary method of commercial operation.
  4. The ultimate validity of antitrust regulation lies in protecting competition and the opportunity of those inside and outside various businesses to compete with established participants by offering lower prices or other innovations to consumers (individual or business).
  5. The largest danger of the improper use of antitrust regulations lie in the potential for it to be misused to protect business incumbents when their customers demonstrate their preference for better prices or other benefits customers value which are offered by a competitor.

More on Copyright Suit Against Andy Warhol Foundation over Prince Paintings

More on the lawsuit of photographer Lynn Goldsmith against the Andy Warhol Foundation claiming that Warhol violated the photographer’s copyright to the photo.

PG just received a comment from the photographer’s attorney who says (Suprise) the OP in ArtNews did not properly report the factual background for the suit and the photographer’s arguments.  This link takes you directly to the comment.

In a prior life, PG was counsel in a couple of lawsuits which were the subject of news articles. Based upon his experience and conversations with other attorneys who had similar experiences, PG always takes reports about lawsuits written by non-lawyers with many grains of salt.

“the Internet’s Not Written in Pencil, It’s Written in Ink” … yet Content Removal Can Be Done on a Worldwide Basis, Says Ag Szpunar

From IP Kat:

When it comes to content removal in the context of an injunction, how is this to be done in order to comply with the prohibition of a general monitoring obligation, as per Article 15 of the E-commerce Directive?

This, in a nutshell, is the issue at stake in Facebook, C-18/18, a referral for a preliminary ruling from the Austrian Supreme Court made in the context of national proceedings concerning defamatory comments published on Facebook.

Yesterday, Advocate General (AG) Szpunar delivered his Opinion, which opens with a quote from The Social Network (the film about the beginning of Facebook): “The internet’s not written in pencil, it’s written in ink”. Indeed, as the AG effectively summed up, this case concerns:
whether a host which operates an online social network platform may be required to delete, with the help of a metaphorical ink eraser, certain content placed online by users of that platform.

. . . .

In his Opinion, AG Szpunar advised the Court of Justice of the European Union (CJEU) to rule that Article 15 of the E-commerce Directive does not preclude a host provider from being ordered – by means of an injunction – to seek and identify, among all the information disseminated by users of its service, the information identical to the information that has been found to be illegal by a court that issued that injunction. With regard to equivalent information, the duty the host provider to search and identify such information is only in relation to the information disseminated by the user that disseminated that illegal information. To this end, the effects of the relevant injunction must be clear, precise and foreseeable, and the authority that issues such injunction must also take into account and balance different fundamental rights, as well as complying with the principle of proportionality.

In relation to the territorial scope of an injunction, the AG noted that the E-commerce Directive is silent on this point. Hence, an injunction can also impose removal of information on a worldwide basis.

. . . .

The background national proceedings relate to an application for an injunction that an Austrian politician sought against Facebook, following failure by the latter to remove information posted by a user and containing disparaging comments relating the politician. The Vienna Commercial Court issued the requested injunction, and ordered Facebook to remove the relevant content. Facebook complied with the injunction, but only disabled access to the content in Austria.

On appeal, the Vienna Higher Regional Court upheld the order made at first instance as regards identical allegations, and dismissed Facebook’s request that the injunction be limited to Austria. However, that court ordered the removal of equivalent content should be only done in relation to content notified by the applicant to Facebook.

. . . .

These are the questions referred to the highest EU court:
(1) Does Article 15(1) of Directive [2000/31] generally preclude any of the obligations listed below of a host provider which has not expeditiously removed illegal information, specifically not just this illegal information within the meaning of Article 14(1)(a) of [that] directive, but also other identically worded items of information:

(a) worldwide?
(b) in the relevant Member State?
(c) of the relevant user worldwide?
(d) of the relevant user in the relevant Member State?

(2) In so far as Question 1 is answered in the negative: Does this also apply in each case for information with an equivalent meaning?
(3) Does this also apply for information with an equivalent meaning as soon as the operator has become aware of this circumstance?

. . . .

Facebook may be ordered to:

  • Seek and remove information identical to the information characterized as illegal when this is also disseminated by other users of the platform;
  • Seek and remove information equivalent to the information characterized as illegal only when this is disseminated by the user who disseminated said information. Holding otherwise, and extending Facebook’s obligation to information disseminated by other users, would entail a general monitoring on the side of the provider (that could no longer be considered neutral), and would also fail to achieve a fair balance of different rights and interests.

Link to the rest at IP Kat

PG says this matter illustrates the substantial tension between freedom of speech and defamation online. It also illustrates the substantial difficulty of providing a means of returning an individual’s reputation to a state which it enjoyed (rightly or wrongly) prior to the publication of defamatory information.

PG is not an expert on EU laws relating to freedom of speech either on or offline.

In the US, however, speaking generally, in the first instance, an individual is free to say anything she/he desires about another individual. That’s basic First Amendment stuff.

Most speech is protected by the First Amendment to the United States Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Defamatory speech is, however, an exception to this protected status of speech. “Speech” doesn’t mean only vocal statements to others, but also applies to writings, including writings that are widely disseminated.

Nolo.com provides a good high-level summary:

“Defamation of character” is a catch-all term for any statement that hurts someone’s reputation. Written defamation is called “libel,” while spoken defamation is called “slander.” Defamation is not a crime, but it is a “tort” (a civil wrong, rather than a criminal wrong). A person who has been defamed can sue the person who did the defaming for damages.

Defamation law tries to balance competing interests: On the one hand, people should not ruin others’ lives by telling lies about them; but on the other hand, people should be able to speak freely without fear of litigation over every insult, disagreement, or mistake. Political and social disagreement is important in a free society, and we obviously don’t all share the same opinions or beliefs. For instance, political opponents often reach opposite conclusions from the same facts, and editorial cartoonists often exaggerate facts to make their point.

Link to the rest at Nolo

Facebook certainly has the ability to remove a specific posting that is found to be defamatory and removes postings that violate its terms of service or Community Standards on a regular basis (although PG understands FB is more likely to deactivate a Facebook account rather than removing only a handful of messages).

However, in the US, there are different defamation standards for a “public figure” (elected officials, movie and sports stars, etc) vs. a private citizen.

Generally speaking, a public figure has to prove actual malice by the speaker/writer knowing their statements were false or by the speaker/writer demonstrating a reckless disregard for the truth of the defamatory statement.

A private citizen need not prove any particular malicious intention or reckless disregard of the truth, but rather negligence in considering or confirming that a statement is false prior to publication.

Here’s a portion of Facebook’s Community Standards:

We distinguish between public figures and private individuals because we want to allow discussion, which often includes critical commentary of people who are featured in the news or who have a large public audience. For public figures, we remove attacks that are severe as well as certain attacks where the public figure is directly tagged in the post or comment. For private individuals, our protection goes further: we remove content that’s meant to degrade or shame, including, for example, claims about someone’s sexual activity. We recognize that bullying and harassment can have more of an emotional impact on minors, which is why our policies provide heightened protection for users between the ages of 13 and 18.

PG isn’t certain whether Facebook has the ability to search all messages or other parts of its content on a world-wide basis to locate and remove specific words about an individual, however.

According to some quick and dirty online research, there are about 3.5 billion social media users around the world.

If each of these users posted on Facebook an average of once per week, Facebook would have to screen 182 billion posts per year.

If Facebook ran its search for defamatory information once per week, objectionable posts might be publicly available on Facebook for up to 7 days.

PG doesn’t know if Facebook can screen its posts by the date the posts were created or not. Additionally, PG doesn’t know if Facebook can screen new posts only or if Facebook can scan new and modified posts in a single or related operation.

In any case, performing a phrase search on a large database consisting of all Facebook postings is a very large job and would require a lot of computing power.

If 100 politicians complained and Facebook was required to search for defamatory language for each one, you can see how giant this task would become.

If online defamers posted a new defamation or a version of a prior defamation that was slightly modified so it would avoid Facebooks identical language searches and the politicians wanted Facebook to also search for all the modified versions of the defamatory language, PG says you could begin to take up a larger and larger portion of the world’s computing capacity.

PG thinks it wouldn’t be very difficult for someone to create a defamation message assembly program that would allow a user to enter the name of the politician or another person they wished to defame and would thereatfer generate a wide range of defamatory messages that were different enough from one another to evade an identical word search Facebook was obligated to undertake.

For example:

Joe Blow is a crook.
Joe Blow is a racketeer.
Joe Blow is a rogue.
Joe Blow is a swindler.
Joe Blow is a villain.
Joe Blow is a shyster.

Congressman Joe Blow is a crook.
Congressman Joe Blow is a racketeer.
Congressman Joe Blow is a rogue.
Congressman Joe Blow is a swindler.
Congressman Joe Blow is a villain.
Congressman Joe Blow is a shyster.

Illinois Congressman Joe Blow is a crook.
Illinois Congressman Joe Blow is a racketeer.
Illinois Congressman Joe Blow is a rogue.
Illinois Congressman Joe Blow is a swindler.
Illinois Congressman Joe Blow is a villain.
Illinois Congressman Joe Blow is a shyster.

Illinois Congressman Joe Blow is a big crook.
Illinois Congressman Joe Blow is a big racketeer.
Illinois Congressman Joe Blow is a big rogue.
Illinois Congressman Joe Blow is a big swindler.
Illinois Congressman Joe Blow is a big villain.
Illinois Congressman Joe Blow is a big shyster.

On the other hand, the victim of defamation would not want Facebook deleting posts like the following:

Joe Blow is not a crook.

 

Google in Australia: Sudden Conversion or Tactical Manoeuvre?

From Hugh Stephens Blog:

In news coming out of Australia, it has been reported that Google has voluntarily agreed to de-index several hundred websites that distribute pirated audio-visual content. This will make it more difficult although not impossible for Australian consumers to access these sites. Village Roadshow Chairman Graham Burke, Australia’s most prominent anti-piracy crusader, has been reported as saying, with regard to Google, “We’ve gone from being enemies to being allies”. That’s quite a transformation.

Google has apparently agreed to voluntarily remove from its search engine results any sites that ISPs in Australia are required to block as a result of court orders under relatively new provisions of Australian law.

. . . .

These amendments require internet providers to block websites identified by content owners (and ratified by a court order) that infringe, facilitate infringement or whose primary purpose or effect is infringement. In addition to an expanded requirement for action by internet providers (referred to as Carriage Service Providers in Australia), and new measures to prevent “site-hopping” by pirate sites, the 2018 copyright amendments also required search engines to block or de-index search results for sites subject a court order. Google fought long and hard against that particular amendment, without success.

. . . .

Google . . .  argued that the there was no evidence that the existing law was deficient and claimed its own voluntary takedown process in response to complaints from rights owners was sufficient. This prompted Graham Burke to describe Google’s efforts as a “sham”. Burke’s submission to the legislative review process claimed that; “Their sole interest is using a treasure trove of stolen movies as part of attracting people to a business model that is strengthened by theft…Google auto complete and search are used to steal movies”. Despite opposition from Google and some others, the amendment passed in the Australian Parliament last autumn, with broad bipartisan support.

. . . .

At the same time, in the aftermath to the tragic shootings in Christchurch, New Zealand, in April the Australian Parliament passed (again with bipartisan support) robust legislation holding the executives of social media platforms, including Google-owned YouTube, criminally responsible (and the companies corporately responsible), if violent material is not removed expeditiously after notification by authorities.

. . . .

The ubiquity of the Google and Facebook platforms and the lack of transparency of the operation of these platforms, have had adverse effects on news publishers and their opportunities to monetise their content”.

. . . .

This is relevant given Google’s experience in Canada in the landmark Google v. Equustek case. In that case . . . Google was required by the British Columbia Supreme Court to de-index search results for a competitor of Equustek (a Canadian company manufacturing internet routers) found to have stolen Equustek’s intellectual property in order to market online clones of Equustek’s products. Google agreed to de-index results for its Canadian site, Google.ca, but refused a blanket delisting on Google.com and its other national sites as ordered by the court, and appealed. The BC Court of Appeal upheld the global de-indexing order. Google then appealed to the Supreme Court of Canada and lost. It then resorted to a series of legal actions in the US designed to invalidate the order and then have it varied in Canada pursuant to a California court order. These tactics failed (although Google was able to get an unopposed order in California that the Canadian Supreme Court order could not be enforced in the US), but they demonstrate the lengths that Google will go to in order to retain its ability to do what it wants in the way that it wants.

Link to the rest at Hugh Stephens Blog

Google and Oracle’s $9 Billion ‘Copyright Case of the Decade’ Could Be Headed for the Supreme Court

From Newsweek:

Google calls it the “copyright case of the decade.”

“It” is the $9 billion copyright infringement suit Oracle filed against the search giant nearly 10 years ago. Oracle brought the case in 2010 after Google incorporated 11,500 lines of Oracle’s Java code into Google’s Android platform for smartphones and tablets. Android has since become the world’s most popular operating system, running on more than 2.5 billion devices.

Google won twice at the U.S. District Court level. But each time, a federal appeals court overturned the verdict, ruling for Oracle. Now, Google is begging the Supreme Court to hear the case, and so are the 175 companies, nonprofits and individuals who have signed 15 friend-of-the-court briefs supporting Google’s plea.

. . . .

Here’s the pressing issue: How much protection do copyright laws give to application program interfaces, or APIs? That might sound arcane, but these interfaces are omnipresent in software today. They form the junctions between all the different software applications developed by various companies and independent developers that must seamlessly interact to work right.

All the apps that sit on our smartphones—like Pandora or Uber—use interfaces to communicate with our phones’ operating systems (Apple iOS for iPhones, for example). If the owner of a platform can claim, through copyright, to own those interfaces, it can limit innovation and competition, Google contends. Not only can it determine who gets to write software on its own platform, but, as we’ll see, it may even be able to prevent rival platforms from ever being written. The Harvard Journal of Law and Technology considers the case so consequential that it devoted an entire 360-page “special issue” to it last year.

“If the appeals court’s rulings stand, it’s likely to lead to entrenching dominant firms in software industries,” says Randy Stutz, an attorney with the American Antitrust Institute, which supports Google in the dispute.

Oracle, on the other hand, says the case is cut-and-dried. Its basic argument: Google negotiated to take a license for the Java code, it wasn’t able to reach terms, and then it used portions of the code anyway. (And that’s all true.) Now, it’s time to pay the piper.

. . . .

“Before Android,” Oracle’s lawyers write in their brief to the Supreme Court, “every company that wanted to use the Java platform took a commercial license…including smartphone manufacturers BlackBerry, Nokia and Danger.”

Oracle claims that, if not for Android, Oracle’s own Java software could have become a major smartphone platform. (Although Java was written by Sun Microsystems, Oracle acquired Sun in 2010, shortly before bringing this suit.) Oracle’s lawyers mock the notion that the rulings in its favor will spawn any dire consequences. Despite Google’s “sky-is-falling” arguments, they write, the software industry did not crash in the wake of May 2014 or March 2018, when the U.S. Court of Appeals for the Federal Circuit issued the two key rulings that Google seeks to reverse.

In fact, Oracle has enjoyed fervent support from its own friend-of-the-court briefs, including one from BSA, the Software Alliance, which counts companies like Adobe, Apple and IBM among its members.

Remarkably, for a case about software interfaces, the key Supreme Court precedent was decided in 1879. Obviously, that suit didn’t involve a smartphone platform, but it did define the limits of copyright and explain how a copyright differs from a patent. In that dispute, Charles Selden had authored and copyrighted a book laying out a method of bookkeeping. The book included some blank forms that could be used to implement the system. Later, W.C.M. Baker began marketing his own set of forms to implement Selden’s method that were very similar to those in Selden’s book.

Selden’s widow sued Baker for copyright infringement—and lost. Basically, Justice Joseph Bradley explained in the opinion, she was trying to use copyright to protect the ideas contained in Selden’s book. He explained that, while a patent can protect an idea, a copyright protects only expression—in this case, the particular words Selden used to describe his bookkeeping method. “The copyright…cannot give to the author an exclusive right to the methods of operation which he propounds,” the Supreme Court’s decision said. (Selden had not patented his bookkeeping method.) Since Selden had no monopoly on his method, he had no monopoly on the forms needed to carry out that method.

Congress later wrote the Court’s Baker v. Selden ruling into the federal copyright statute, specifying that a copyright cannot “extend to any idea, procedure, process, system, [or] method of operation,” even if that idea is “described” in copyrighted work.

Link to the rest at Newsweek

Moral Rights

In PG’s experience, most authors in the U.S. aren’t familiar with moral rights. In part, this is because the federal government did not do much about moral rights until 1989.

When the country joined the Berne Convention in 1989, it amended its Copyright Act to include moral rights. However, while the moral rights set out in Berne are intended to apply to all types of copyright-protected works, the U.S. took a narrower interpretation of the moral rights requirements, stipulating that the Convention’s “moral rights” provisions were addressed sufficiently by other statutes, such as laws covering slander and libel. Some international copyright experts contend that the U.S. is not, in fact, complying with its Berne obligations.

Some state legislatures have enacted state moral rights laws, but there is more than a little doubt about whether such laws can be enforced because federal IP laws preempt state IP legislation.

However, in the ever-so-slow manner in which intellectual property laws are changed in the United States, moral rights may be on the path to more structured protection.

From a recently-released study of moral rights by the U.S. Register of Copyrights (footnotes omitted):

Taken from the French phrase droit moral, the term “moral rights” generally refers to
certain non-economic rights that are considered personal to an author. Central to the idea of
moral rights is the idea that a creative work, such as a song or book, actually expresses the
personality of the author.

Society has long recognized the importance of such a bond between a creative work and its author: as far back as the early 1500s, courts in France recognized that only the author has a right to publish their work. Over the course of the last two centuries, countries have increasingly codified this close connection between the author and their work, first through judicial doctrines and limited statutory protections for certain aspects of moral rights, such as a right of first publication, and later through formalized statutory moral rights schemes. While countries have come to recognize a variety of different moral rights, the two most commonly recognized moral rights are the right of an author to be credited as the author of their work (the right of attribution), and the right of an author to prevent prejudicial distortions of their work (the right of integrity), both of which were codified at the international level in the 1928 Rome revision of the Berne Convention.It was not until 1989, however, that the United States became subject to an obligation to provide moral rights protections for authors by joining the Berne Convention.

. . . .

[T]he growth of the internet as the primary locus for buying, selling, and licensing works of authorship has meant that original works in digital form have become more accessible to more people. On the one hand, this has meant that the attribution and integrity of works have been more susceptible to mishandling and manipulation. For example, the metadata containing attribution and other information for creative works is very simple to remove (or “strip”) or replace with erroneous information. A work stripped of proper identifying information then can be disseminated widely to the detriment of both the author’s reputation and ability to profit from the work. Similarly, the increasingly accessible video editing technology behind “deepfake” software can not only fundamentally alter the content of an author’s work, but can also lead to social and moral harm for the artists and the subject of the video through malicious use. On the other hand, digital technologies such as fingerprinting and visual recognition software that allow photographers to identify and track metadata related to their works on the internet have enabled authors to combat some of these threats to their attribution and integrity interests. Whether considered as a useful tool or a threat to protection of integrity and attribution interests, there is no question that technology has transformed the moral rights landscape in the United States.

As the foregoing indicates, there is a significant amount of variation in how moral rights are recognized around the world, as well as the manner in which they are protected. For example, in addition to the rights of attribution and integrity, other countries have recognized a number of additional moral rights, some of which are counterparts to economic rights, including:

  • the right of withdrawal, or droit de repentir, which allows authors to retract works from public circulation that they feel no longer represent them or their views;
  • the right of divulgation, through which an author can control the public disclosure of their work, and which supports the economic right of first publication;
  • the right of the author to have access to the original copy of a work in order to “exercise his author’s rights”;
  • the right to prevent others from associating one’s work with an undesirable “product, service, cause or institution”;
  • the right to pseudonymity; and
  • the right of an author to compel the completion of a commissioned work of art.

Additionally, not all countries protect the rights of attribution and integrity in the same manner, and many countries have laws protecting discrete aspects of those rights using different terminology. As many scholars have noted, civil law and common law countries historically took different approaches to the protection of authors’ moral rights: while many civil law countries conceived of moral rights as separate and distinct from an author’s economic rights, common law countries tended to conceive of moral rights as part and parcel of the general copyright protections afforded to an author. Although the Berne Convention largely adopted the civil law approach, conceptualizing moral rights as separate from economic rights, member states have wide discretion in how they chose to implement the moral rights protections of Article 6. For this reason, the contours of the rights of attribution and integrity look quite different, depending upon the country.

One area in which there is significant variance among countries is in how they approach the concepts of waivability and alienability of moral rights. While moral rights are often described as “inalienable,” “nonwaivable,” or in other terms that express the inherent relationship between author and work, moral rights are in fact often waivable and sometimes also alienable under many countries’ moral rights schemes. In some countries like Canada, waivability is explicitly spelled out in the statute. Elsewhere, it is inferred by the ability of authors to authorize certain uses of their works, such as in Nigeria, Germany, France, China, and Switzerland. This ability to waive moral rights is generally tempered by limits designed to protect authors from unwittingly or unwillingly waiving their rights.

Another area of variation in international approaches to moral rights has to do with how the country’s laws treat situations where a work is “authored” by a corporation or has many “authors” that all contribute a small piece to a larger whole  In some countries that have adopted copyright ownership rules similar to the work-for-hire doctrine in the United States, corporations are allowed to hold and assert moral rights in such works. For example, South Korea, Japan, and China all designate employers as the default legal author of works created by employees, including for some moral rights purposes, although they allow the parties to contract around this default.  Indian courts have also recognized moral rights for corporations. In contrast, under both Swiss and French law, moral rights can attach only to natural authors and not corporate entities; employees may maintain or waive their rights, but employing companies cannot hold them. Several countries, including France and Israel, require that moral rights remain with the natural author even when the law or a contract transfers economic rights away. Countries have also adopted different approaches regarding how to address potential conflicts that may arise resulting from the grant of moral rights to different contributors. For example, Guatemalan authors contributing to newspapers do not have control of their contributions when combined in a newspaper, but they do have rights in their works when those works stand alone.

The question of moral rights protection for multi-author works has been particularly acute in the area of audiovisual works. Some countries have adopted special rules for moral rights in these works, attempting to balance the interests of the producer, the director, individual performers, and the authors of incorporated works such as musical scores. For example, while China recognizes motion pictures as collaborative works with several individual authors, the various authors are only granted the right of authorship while all other copyrights belong to the producer.  While Guatemala grants moral rights to the producer (who is also holder of the economic rights), this right includes mandatory attribution for the director, the script author, the author of any underlying work, and the authors of the musical compositions in the audiovisual work. In Nigeria, which also grants moral rights to the producer, the law is designed to encourage performers and others involved in films to execute contracts with the producer in order to preserve any of their rights. Performers in audiovisual works in France are considered employees, and thus their rights of attribution and integrity are governed not only by the moral rights regime, but also by employment law regulations and collective bargaining agreements. In Germany, although moral rights attach to both filmmakers and performers, a rightsholder may only prohibit gross distortions of their work and their interests must be balanced with the legitimate interests of the other film creators and the producer.

Link to the rest at Copyright.gov

PG says if you have gotten this far, you know more about moral rights than 99.99% of the authors in the United States. He cannot confidently provide any sort of estimate for authors outside of the United States.

Are You Self-Publishing Audio Books?

From Just Publishing Advice:

It takes total concentration to read a book or an ebook. But with an audio book, a listener can multitask.

This is the key attraction for so many younger readers in particular, as it allows for the consumption of a book while driving, commuting and playing a game on a smartphone, knitting or even while grinding out the hours at work.

The popularity is on the move and according to recent statistics, audiobooks are now a multi-billion dollar industry in the US alone.

. . . .

In another report, it estimates that one in ten readers are now listening to audiobooks.

While the data helps to gain a small insight into the market, it is still easy to draw an assumption that it is the next logical step for self-publishing authors and small press.

Ebook publishing is now the number one form of self-publishing. Many Indie authors then take the next step and publish a paperback version.

. . . .

An audio version offers an opportunity for self-publishing authors to extend their sales potential, and at the same time, diversify revenue streams.

Well, only a little at present as it is really an Amazon Audible and Apple iTunes dominated retail market. However, in the future, this may change.

. . . .

If you live in the US, you are in luck.

Amazon offers production and publishing through Audio Creation Exchange, ACX.

For authors outside of the US, things are not quite so easy.

. . . .

If you live in the US, you are in luck.

Amazon offers production and publishing through Audio Creation Exchange, ACX.

For authors outside of the US, things are not quite so easy.

This is a very common complaint about Amazon and its US-centric approach, which creates so many hurdles for non-US self-publishers.

The following quote is taken from Amazon’s help topic regarding ACX.

At this time, ACX is open only to residents of the United States and United Kingdom who have a US or UK mailing address, and a valid US or UK Taxpayer Identification Number (TIN). For more information on Taxpayer Identification Numbers (TIN), please visit the IRS website. We hope to increase our availability to a more global audience in the future.

If you live in the UK, Amazon can help you, but you will need to have a TIN. If you are already publishing with KDP, you probably have one.

For the rest of the world, well, Amazon, as it so often does, leaves you out of the cold.

. . . .

There are a growing number of small press and independent publishers who offer to produce and publish audio books.

Distribution is most often on Amazon Audible and iTunes.

Do your research and look for publishers who accept submissions or offer a production service using professional narrators and producers.

As with any decision to use a small publisher, be careful, do your background research and don’t rush into signing a contract until you are totally convinced it is a fair arrangement concerning your audio rights.

While some may charge you for the service, it is worth looking for a publisher that offers a revenue split. This is usually 50-50 of net audio royalty earnings.

It might seem a bit steep, but Amazon ACX offers between 20 and 40% net royalties, so 50-50 is not too bad.

Link to the rest at Just Publishing Advice

As with any publishing contract, PG suggests you check out the contract terms carefully before you enter into a publishing agreement for audiobooks.

Speaking generally (and, yes, there are a few exceptions), the traditional publishing industry has fallen into a bad habit (in PG’s persistently humble opinion) of using standard agreements that last longer than any other business contracts with which PG is familiar (and he has seen a lot).

He refers, of course to publishing contracts that continue “for the full term of the copyright.”

Regular visitors to TPV will know that, in the United States, for works created after January 1, 1978, the full term of the copyright is the rest of the author’s life plus 70 years. Due to their participation in The Berne Convention (an international copyright treaty), the copyright laws of many other nations provide for copyright protections of similar durations — the author’s life plus 50 years is common.

PG can’t think of any other types of business agreements involving individuals that last for the life of one of the parties without any obvious exit opportunities. The long period of copyright protection was sold to the US Congress as a great boon to creators. However, under the terms of typical publishing contracts, the chief beneficiaries are corporate publishers.

While it is important for authors to read their publishing agreements thoroughly (Yes, PG knows it’s not fun. He has read far more publishing agreements than you have or ever will and understands what it is like.), if you are looking for a method of performing a quick, preliminary check for provisions that means you will die before your publishing agreement does, search for phrases like:

  • “full term of the copyright”
  • “term”
  • “copyright”
  • “continue”

Those searches may help you immediately locate objectionable provisions that allow you to put the publisher into the reject pile without looking for other nasties. However, if the searches don’t disclose anything, you will most definitely have to read the whole thing. The quoted terms are not magic incantations which must be used. Other language can accomplish the same thing.

Until the advent of ebooks, book publishing contracts used Out of Print clauses to give the author the ability to retrieve rights to his/her book if the publisher wasn’t doing anything with it.

With printed books, even dribs and drabs of sales would eventually deplete the publisher’s stock of physical books. At this point, the publisher would likely consider whether the cost it would pay for another printing of an author’s book was economically justified or not. If the publisher was concerned about ending up with a pile of unsold printed books in its warehouse for a long time, the publisher might decide not to print any more.

Once the publisher’s existing stock was sold, the book was out of print – it was not for sale in any normal trade channels. The author (or the author’s heirs) could then retrieve her/his rights to the book and do something else with them.

Of course, once an electronic file is created, an ebook costs the publisher nothing to offer for sale on Amazon or any other online bookstore with which PG is familiar.

The disk space necessary to store an individual epub or mobi file is essentially free for Amazon and it doesn’t charge anything to maintain the listing almost forever. (There may be a giant digital housecleaning in Seattle at some time in the distant future, but don’t count on it happening during your lifetime.) Print on demand hardcopy books are just another kind of file that’s stored on disk.

So, in 2019 and into the foreseeable future, an infinite number of an author’s ebooks are for sale and not “out of print”.

So, the traditional exit provision for an author – the out of print clause – remains in existence in almost all publishing contracts PG has reviewed, but it provides no opportunity for the author to exercise it to get out of a publishing agreement that has not paid more than $5.00 in annual royalties in over ten years.

 

Amazon’s Antitrust Paradox

From The Yale Law Journal (footnotes omitted):

In Amazon’s early years, a running joke among Wall Street analysts was that CEO Jeff Bezos was building a house of cards. Entering its sixth year in 2000, the company had yet to crack a profit and was mounting millions of dollars in continuous losses, each quarter’s larger than the last. Nevertheless, a segment of shareholders believed that by dumping money into advertising and steep discounts, Amazon was making a sound investment that would yield returns once e-commerce took off. Each quarter the company would report losses, and its stock price would rise. One news site captured the split sentiment by asking, “Amazon: Ponzi Scheme or Wal-Mart of the Web?”3

Sixteen years on, nobody seriously doubts that Amazon is anything but the titan of twenty-firstcentury commerce. In 2015, it earned $107 billion in revenue,4 and, as of 2013, it sold more than its next twelve online competitors combined.5 By some estimates, Amazon now captures 46% of online shopping, with its share growing faster than the sector as a whole.6 In addition to being a retailer, it is a marketing platform, a delivery and logistics network, a payment service, a credit lender, an auction house, a major book publisher, a producer of television and films, a fashion designer, a hardware manufacturer, and a leading provider of cloud server space and computing power. Although Amazon has clocked staggering growth—reporting double-digit increases in net sales yearly—it reports meager profits, choosing to invest aggressively instead. The company listed consistent losses for the first seven years it was in business, with debts of $2 billion.7 While it exits the red more regularly now,8 negative returns are still common. The company reported losses in two of the last five years, for example, and its highest yearly net income was still less than 1% of its net sales.9

Despite the company’s history of thin returns, investors have zealously backed it: Amazon’s shares trade at over 900 times diluted earnings, making it the most expensive stock in the Standard & Poor’s 500.10 As one reporter marveled, “The company barely ekes out a profit, spends a fortune on expansion and free shipping and is famously opaque about its business operations. Yet investors . . . pour into the stock.”11 Another commented that Amazon is in “a class of its own when it comes to valuation.”12

Reporters and financial analysts continue to speculate about when and how Amazon’s deep investments and steep losses will pay off.13 Customers, meanwhile, universally seem to love the company. Close to half of all online buyers go directly to Amazon first to search for products,14 and in 2016, the Reputation Institute named the firm the “most reputable company in America” for the third year running.15 In recent years, journalists have exposed the aggressive business tactics Amazon employs. For instance Amazon named one campaign “The Gazelle Project,” a strategy whereby Amazon would approach small publishers “the way a cheetah would a sickly gazelle.”16 This, as well as other reporting,17 drew widespread attention,18 perhaps because it offered a glimpse at the potential social costs of Amazon’s dominance. The firm’s highly public dispute with Hachette in 2014—in which Amazon delisted the publisher’s books from its website during business negotiations—similarly generated extensive press scrutiny and dialogue.19 More generally, there is growing public awareness that Amazon has established itself as an essential part of the internet economy,20 and a gnawing sense that its dominance—its sheer scale and breadth—may pose hazards.21 But when pressed on why, critics often fumble to explain how a company that has so clearly delivered enormous benefits to consumers—not to mention revolutionized e-commerce in general—could, at the end of the day, threaten our markets. Trying to make sense of the contradiction, one journalist noted that the critics’ argument seems to be that “even though Amazon’s activities tend to reduce book prices, which is considered good for consumers, they ultimately hurt consumers.”22

In some ways, the story of Amazon’s sustained and growing dominance is also the story of changes in our antitrust laws. Due to a change in legal thinking and practice in the 1970s and 1980s, antitrust law now assesses competition largely with an eye to the short-term interests of consumers, not producers or the health of the market as a whole; antitrust doctrine views low consumer prices, alone, to be evidence of sound competition. By this measure, Amazon has excelled; it has evaded government scrutiny in part through fervently devoting its business strategy and rhetoric to reducing prices for consumers. Amazon’s closest encounter with antitrust authorities was when the Justice Department sued other companies for teaming up against Amazon.23 It is as if Bezos charted the company’s growth by first drawing a map of antitrust laws, and then devising routes to smoothly bypass them. With its missionary zeal for consumers, Amazon has marched toward monopoly by singing the tune of contemporary antitrust.

. . . .

This analysis reveals that the current framework in antitrust—specifically its equating competition with “consumer welfare,” typically measured through short-term effects on price and output24—fails to capture the architecture of market power in the twenty-first century marketplace. In other words, the potential harms to competition posed by Amazon’s dominance are not cognizable if we assess competition primarily through price and output. Focusing on these metrics instead blinds us to the potential hazards.

My argument is that gauging real competition in the twenty-first century marketplace—especially in the case of online platforms—requires analyzing the underlying structure and dynamics of markets. Rather than pegging competition to a narrow set of outcomes, this approach would examine the competitive process itself. Animating this framework is the idea that a company’s power and the potential anticompetitive nature of that power cannot be fully understood without looking to the structure of a business and the structural role it plays in markets. Applying this idea involves, for example, assessing whether a company’s structure creates certain anticompetitive conflicts of interest; whether it can cross-leverage market advantages across distinct lines of business; and whether the structure of the market incentivizes and permits predatory conduct.

. . . .

This market structure-based understanding of competition was a foundation of antitrust thought and policy through the 1960s. Subscribing to this view, courts blocked mergers that they determined would lead to anticompetitive market structures. In some instances, this meant halting horizontal deals—mergers combining two direct competitors operating in the same market or product line—that would have handed the new entity a large share of the market.26 In others, it involved rejecting vertical mergers—deals joining companies that operated in different tiers of the same supply or production chain—that would “foreclose competition.”27 Centrally, this approach involved policing not just for size but also for conflicts of interest—like whether allowing a dominant shoe manufacturer to extend into shoe retailing would create an incentive for the manufacturer to disadvantage or discriminate against competing retailers.28

The Chicago School approach to antitrust, which gained mainstream prominence and credibility in the 1970s and 1980s, rejected this structuralist view.29 In the words of Richard Posner, the essence of the Chicago School position is that “the proper lens for viewing antitrust problems is price theory.”30 Foundational to this view is a faith in the efficiency of markets, propelled by profit-maximizing actors. The Chicago School approach bases its vision of industrial organization on a simple theoretical premise: “[R]ational economic actors working within the confines of the market seek to maximize profits by combining inputs in the most efficient manner. A failure to act in this fashion will be punished by the competitive forces of the market.”31

. . . .

Practically, the shift from structuralism to price theory had two major ramifications for antitrust analysis. First, it led to a significant narrowing of the concept of entry barriers. An entry barrier is a cost that must be borne by a firm seeking to enter an industry but is not carried by firms already in the industry.34 According to the Chicago School, advantages that incumbents enjoy from economies of scale, capital requirements, and product differentiation do not constitute entry barriers, as these factors are considered to reflect no more than the “objective technical demands of production and distribution.”35 With so many “entry barriers . . . discounted, all firms are subject to the threat of potential competition . . . regardless of the number of firms or levels of concentration.”36 On this view, market power is always fleeting—and hence antitrust enforcement rarely needed.

The second consequence of the shift away from structuralism was that consumer prices became the dominant metric for assessing competition. In his highly influential work, The Antitrust Paradox, Robert Bork asserted that the sole normative objective of antitrust should be to maximize consumer welfare, best pursued through promoting economic efficiency.37 Although Bork used “consumer welfare” to mean “allocative efficiency,”38 courts and antitrust authorities have largely measured it through effects on consumer prices. In 1979, the Supreme Court followed Bork’s work and declared that “Congress designed the Sherman Act as a ‘consumer welfare prescription’”39—a statement that is widely viewed as erroneous.40 Still, this philosophy wound its way into policy and doctrine. The 1982 merger guidelines issued by the Reagan Administration—a radical departure from the previous guidelines, written in 1968—reflected this newfound focus. While the 1968 guidelines had established that the “primary role” of merger enforcement was “to preserve and promote market structures conducive to competition,”41 the 1982 guidelines said mergers “should not be permitted to create or enhance ‘market power,’” defined as the “ability of one or more firms profitably to maintain prices above competitive levels.”42 Today, showing antitrust injury requires showing harm to consumer welfare, generally in the form of price increases and output restrictions.43

. . . .

Two areas of enforcement that this reorientation has affected dramatically are predatory pricing and vertical integration. The Chicago School claims that “predatory pricing, vertical integration, and tying arrangements never or almost never reduce consumer welfare.”49 Both predatory pricing and vertical integration are highly relevant to analyzing Amazon’s path to dominance and the source of its power. Below, I offer a brief overview of how the Chicago School’s influence has shaped predatory pricing doctrine and enforcers’ views of vertical integration.

Link to the rest at The Yale Law Journal

It has been a long time since PG took an antitrust course in law school.

That said, he disagrees with the fundamental premise of the OP that, at the present time, Amazon must be reined in because it is too big and competitors are having a hard time.

PG agrees with the Chicago School argument that antitrust law is designed to benefit purchasers. If a company pushes prices down, absent some other factor, that’s a good thing. Competition that benefits purchasers is a public good. Antitrust law is designed to punish those who act improperly to push prices up.

Under PG’s view, if a seller pushes prices down for a period of time in order to force competitors out of business, then raises prices because competitors are gone, it is then that an antitrust violation occurs and the seller may be punished.

Amazon has not shown any price-increasing tendencies. PG also suggests that Amazon has a lot of competitors selling goods and services online. As far as competition is concerned, the online retail world is very easy to enter – a website, a spare room for inventory, a nearby UPS dropbox and a credit card processing service (there are lots) is about all that is needed. After all, Amazon began in Jeff Bezos’ garage.

Since the infrastructure necessary to become an online seller of goods and services is already in place and that infrastructure is not controlled by Amazon, Amazon cannot raise prices on its merchandise without leaving itself open to underpricing by competitors.

Walmart has put at least tens of thousands of merchants in small and medium-sized cities out of business.

Only a few years ago, Walmart was the bête noire of the same types of people who are complaining about Amazon’s antitrust violations today.

From The Unconvincing Antitrust Case Against Wal-Mart:

I recently picked up a copy of the July Harper’s Magazine to read an essay by Barry C. Lynn entitled, “Breaking the Chain: The Antitrust Case Against Wal-Mart.” If you can’t tell from the title, the basic point is that antitrust authorities should break up Wal-Mart and put an end to the immense havoc that the retail giant has caused the economy.

. . . .

Let me first summarize the Lynn’s argument and then discuss why they are entirely wrong as a matter of economics and sensible antitrust policy below the fold. Here are the basic moves in Lynn’s case against WM:

First, Wal-Mart is a monopsonist. Lynn writes that one in five of every American retail sales occurs at WM, and WM is dominating its retail rivals.

Second, WM leverages its monopsony power in a manner which antitrust law should prohibit. Lynn seems to have two antitrust harms in mind here.

The first is that WM has “changed the game” with respect to bargaining between supplier and retailers. WM dominates upstream suppliers by demanding lower prices, and using its own in-house brands to discipline suppliers, resulting in shrinking manufacturer profit margins. The article discusses WM’s reputation as a hard-nosed, no nonsense negotiator and cites examples of negotiations with Coca-Cola and Kraft. Lynn points to the use of “category management,” a practice where retailers delegate shelf space display decisions to a manufacturer (called the “category captain”) within a product category (say, sodas or soups).

Of category management, Lynn alleges without any substantiation that the practice has resulted in collusion by suppliers as well as retailers:

“one common result is that many producers simply stop competing head to head . . . . in many instances, a single firm ends up controlling 70% or more of US sales in an entire product line . . .. In exchange, its competitor will expect that firm to yield 70% or more of some other product line, say, snacks or spices. Such sharing out of markets by oligopolies is taking place throughout the non-branded economy . . . but nowhere is it more visible than in the aisles of Wal-Mart.”

Note the tension between the claim of supplier collusion and shrinking supplier margins. However, more importantly is the notion that category management and other changes in the bargaining relationships are necessary bad on antitrust grounds. There has been very little economic analysis of category management As a side note, Benjamin Klein, Kevin M. Murphy and are working on a paper entitled “Exclusive Dealing and Category Management in Retail Distribution,” which analyzes the economics of these arrangements as well as exclusive dealing contracts in retail . . . . From an antitrust perspective, it is difficult to imagine why category management would be any more of a concern than exclusive dealing, which is analyzed under the rule of reason and violates the Sherman Act when a number of conditions are satisfied (monopoly power, substantial foreclosure, barriers to entry, etc.). Category management only grants the manufacturer the right to favor his own product, and can be terminated by the retailer at any time, whereas exclusive dealing completely forecloses rivals from shelf space.

. . . .

The second antitrust harm Lynn points to is equally unconvincing. Lynn writes that even if WM is efficient, increased concentration in retail represents a “gathering of power unchecked and unaccountable,” and those who would defend efficiency must “view the American citizen not as someone who yearns to decide for himself or herself what to buy and where to work in a free market but to say, instead, ‘let them eat Tastykake.’”

. . . .

The data don’t match the theory. Taking Lynn’s antitrust theories on their own terms, perhaps the best place to start is that the data simply don’t agree. Retail margins have remained nearly constant for the past twenty years . . . .  Barriers to entry at retail are negligible, and because supracompetitive profits are dissipated through competition, payments to retailers are ultimately passed through to consumers.

What about prices? Lynn talks a great deal about the good old days of antitrust before the Reagan administration where the “goal was to enforce a balance of power among economic actors of all sizes, to maintain some degree of liberty at all levels within the economy.” The essay is essentially an ode to these discredited days of antitrust when consumer welfare took a back seat to attacking concentration for its own sake. For example, Lynn describes comments by then AG William French Smith that “bigness is not necessary badness” as “radical” and “astounding.” Really? Not to any undergraduate student of industrial organization. But what about prices? Does Lynn consider any of the competitive benefits of Wal-Mart, or is the antitrust case against Wal-Mart to be made at the expense of the consumer in the name some fuzzy principle of antitrust populism? Lynn’s essay says very little about prices except the following:

“to defend Wal-Mart for its low prices is to claim that the most perfect form of economic organization more closely resembles the Soviet Union in 1950 than 20th century America. It is to celebrate rationalization to the point of complete irrationality.”

Does anyone really believe that a retailer who earns 30% retail market share by competing vigorously for consumers is the equivalent to a central planner? I hope not. Retail competition is incredibly robust, as is easily observed by watching retail profit margins over the past 20 years in which concentration has increased substantially. To describe Wal-Mart’s negotiations with large manufacturers like Coca-Cola and Kraft as analogous to central planning activity is ridiculous.

Luckily, there is economic evidence that Wal-Mart is in fact very good for consumers.

Link to the rest at The Unconvincing Antitrust Case Against Wal-Mart

PG suggests that bigness is not badness. Bad actions by large or small entities is badness.

Walmart (“Low prices every day”) and Amazon (“Free Shipping” “Prime Day) are especially beneficial to middle class and lower class consumers for the simple fact that those consumers can buy more with their dollars.

PG suggests that the current consumer-oriented antitrust regimen is far more friendly than its predecessors, such as the now-gone Fair Trade laws which granted producers the right to set the final retail price of their goods, limiting the ability of chain stores to discount.

Even if a retailer wanted to sell products to consumers at a lower price and believed it could do so profitably, Fair Trade laws allowed manufacturers to prohibit such discounting. Essentially, Fair Trade laws allowed manufacturers the right to engage in legal price-fixing, a practice that only benefitted inefficient retailers, not consumers.