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.

 

Patreon, Copyright, and Personal Choice

From Kristine Kathryn Rusch:

Patreon’s Terms of Use has a possible rights grab buried in them. This is the relevant passage:

By posting content to Patreon you grant us a royalty-free, perpetual, irrevocable, non-exclusive, sublicensable, worldwide license to use, reproduce, distribute, perform, publicly display or prepare derivative works of your content. The purpose of this license is to allow us to operate Patreon, promote Patreon and promote your content on Patreon. We are not trying to steal your content or use it in an exploitative way.

Now realize that contracts need to be read in their entirety, and this is just one paragraph. But the first sentence of this paragraph gave me pause when I first read it years ago, and clearly it upset PG as well.

That sentence at the end of the paragraph? Technically, it’s not theft if you sign away the copyright. So that “steal” thing is kind of a misdirection.

And here’s another point: Even though the FAQ and Patreon’s home page contradict the rights grab, the grab is in the Terms of Use. The reassurances aren’t.

Since I’ve worked in publishing for decades, I learned the difference between language in a contract—which the Terms of Use is, whether we like it or not—and reassurances from the company. Language in a contract can be enforced relatively easily. Reassurances are usually just that: a nice pat on the head accompanied by a don’t worry your pretty little head, sweetie.

. . . .

I saw that possible rights grab the day I logged onto Patreon and started my account. And, at that moment, decided not to ever filter any fiction through Patreon’s site.

I have very different attitudes about my fiction and my nonfiction. I write nonfiction for other people. I write fiction for myself. I’m a control freak about my fiction. I’m quite loose with my nonfiction.

And those distinctions are on purpose.

To put it another way, I look at the difference this way: I’m going to the Licensing Expo in June and while there, I will be acting as a licensor for my fiction IP. I’m not even going to mention the nonfiction IP.

I see lots of possibilities for fiction. I know there are a lot of ways I can exploit the nonfiction as well, but I’m not as interested. I only have so much time in the day, and I’ll spend it on fiction.

The upshot is that I’m extremely protective of my fiction. In no way do I want to get in a pissing contest with an internet company that deals with billions of dollars in revenue when it claims that it owns my IP.

. . . .

So when I saw that clause in the Patreon Terms of Use, I cast about for mitigating factors. There are several. The final sentence of the paragraph for one. The FAQ for another. Unfortunately, those things don’t clarify the possible rights grab. Instead, they muddy the waters. There’s enough confusion to make a lawsuit possible, which brought up the nightmare I listed above.

I felt disappointed that I couldn’t use Patreon as another revenue stream for my fiction. But I wasn’t so disappointed that I would throw caution to the wind and jump onto the platform for a few extra bucks.

I hesitated on the nonfiction as well, but ultimately decided that I could take a risk with the nonfiction that I would never take with the fiction. I even put up exclusive nonfiction content on Patreon, but it’s similar to what I put on my website, and it’s never something that I would want extra copyright protection on, like some kind of investigative reporting or a piece of creative nonfiction.

I’m very protective of my IP, but I’m fluid in the ways I exploit it. Making a judgement about which service to use and which one to abandon has become old hat for me.

I do that when I see contracts. I’ve walked away from short story contracts, foreign contracts, traditional publishing contracts, and movie deals. I’ve walked away from deals that would have paid me hundreds of thousands of dollars but would have taken my IP for that price. I have yet to find that price that “they” swear we all have—you know: where you will sell out your principles for a fortune. Offer me tens of millions for total ownership of my fiction IP and I will say no every single time.

Nonfiction, though…I’ll think about it. Maybe this comes from the fact that I got my nonfiction education in radio as a volunteer. In other words, I wrote nonfiction for free (or rather, as I saw it, in return for a master class in writing under fire). When I became proficient, I got paid (a tiny salary, but still). So there was money, but it was never the focus of the nonfiction.

. . . .

1. Know What You’re Signing. Make sure you understand the legalese. Make sure you know what each clause means and/or how a court might interpret those clauses in relation to all other clauses.

As PG mentioned in his long post, “Under general principles governing the interpretation of contracts, if there is a conflict between a specific and a general provision, the specific provision will govern.” He uses the Patreon Terms of Use as an example. The first sentence in the copyright grab is very specific. The second, slightly reassuring sentence, is very general.

In other words, the copyright grab has a good chance of holding up in a court challenge. Right now, we’re discussing a made-up court challenge that might never happen. So…

. . . .

6. Don’t Ever Delude Yourself About The Consequences. Ever. Don’t let the phrase, “Yeah, I know it’s bad, but they’ll never do that to me” out of your mouth. If something is in a contract, or part of a deal, then there’s a very real chance that that something will get activated. Someone—maybe not the person you’re negotiating with—will do that horrible thing allowed by the contract.

Be prepared for that. If you can live with that bad thing, then sign the deal. If you can’t, don’t sign.

The choice really is that binary.

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.

As usual, Kris has created an insightful post about a good way of thinking through a common business problem.

The most common response PG has received when he points out an egregious contract provision to the other side of a potential deal (the ones who wrote the contract) is something like, “We would never do that.”

PG’s reply is usually some version of, “That’s wonderful. I’m sure my client will be happy to hear that you won’t mind taking that provision out of the  contract.”

When a large organization is on the other side of a negotiation, about 99% of the time, the next statement is some version of, “I’m sorry, I can’t do that. This is our standard contract that everyone signs.” Sometimes it’s followed by a reference to computer accounting systems or, occasionally, an unnamed lawyer or department full of lawyers (“our lawyers”).

In ancient times, when contracts were engraved on brass or copper plates, changing a “standard contract” was certainly a laborious and time-consuming task. In the 21st century, every contract exists as an electronic document somewhere. If it’s electronic, it’s easy to change. On occasion, PG has offered to prepare a clean version of the contract without the nasty bits to help lessen the other side’s onerous workload.

In some cases, the counterparty with whom PG is negotiating honestly believes the contract can’t be changed. Someone higher in the organization has said so.

What the other side is really saying is, “We won’t change the contract for your client.”

For large publishers, without going into details, PG will assure one and all that the publishing contracts for best-selling authors tend to differ quite a lot from those publishers’ “standard contracts” which “can not be changed”.

PG has sometimes wondered if, when one acquiring editor at a publisher is saying, “I’m sorry, we can’t change our contract”, another editor is saying, “What language would you suggest?”

When someone is reviewing a contract, including a contract that will govern rights to a book or story they have written, it can be a useful exercise to ask, “What is the worst thing that could happen to my story or me if every single provision in this contract were strictly enforced according to the literal meaning of the words?”

Another useful exercise is to ask, “If people I didn’t like were to acquire this company, would I upset if they looked at the contract and did (or didn’t do) everything the contract permitted?”

One of the particular problems with traditional publishing contracts is atypical of business contracts in the non-publishing world.

Most business contracts last for a specific period of time – one year, three years, maybe even ten years. Such agreements can be extended or renewed if both sides agree. If someone enters into a bad contract, in the worst case, there is an end in sight for the obligations and restrictions contained in the agreement.

This is not the case for an author entering into what passes for a standard publishing agreement, at least in the US. As PG has noted many times before, language such as “the full term of the author’s copyright” can be expected to appear somewhere. In the US and many other countries, this means that contract is a lifetime contract for the author. The contract has a good potential for continuing for the lifetimes of the offspring of authors in their middle years as well.

If PG were king for a day, he would decree that all traditional publishing contracts would last for no more three years (maybe five if he was feeling charitable toward publishers that day).

At the end of the initial term, a publishing contract could be renewed for an additional three year period if, at that time, both the author and the publisher agreed that it would be renewed. If the contract was not renewed, the author would regain all rights to the book(s) covered by the contract.

If Amazon continues to compete with traditional publishers for the books of entrepreneurial authors and if publishers decided to respond by aggressively competing with Amazon, publishers might match Amazon’s KDP contract terms – either the author or Amazon can terminate the agreement at any time and remove the author’s books from Amazon’s store.

 

‘Blurred Lines’ on Their Minds, Songwriters Create Nervously

From The New York Times:

It’s not easy to be a songwriter in the pop world these days. Listeners rarely see your name. For anything but a giant hit, royalties from streaming are infinitesimal — and big tech companies seem to want to keep it that way.

And then there’s the shadow of “Blurred Lines.”

Four years after the copyright trial over that No. 1 song — in which Robin Thicke and Pharrell Williams, its primary writers, were ordered to pay more than $5 million for copying Marvin Gaye’s disco-era hit “Got to Give It Up” — the case still looms over the music industry and individual songwriters, who were left to wonder when homage bleeds into plagiarism.

Intellectual property lawyers and music executives interviewed for this article said the case had fueled a rise in copyright claims. In September, Ed Sheeran will go to court to defend “Thinking Out Loud,” a Grammy-winning song that has been accused of mimicking another Gaye classic, “Let’s Get It On.”

. . . .

The aftereffects of the “Blurred Lines” decision — which was upheld on appeal last year — have been felt most acutely by rank-and-file songwriters, who work in obscurity even as their creations propel others to stardom. The ramifications for them have been inescapable, affecting royalty splits, legal and insurance costs, and even how songs are composed.

The songwriter Evan Bogart, who has written for Beyoncé, Rihanna and Madonna, described second-guessing himself in the studio, worried that a melody or lyric might cross a line he can no longer locate.

“I shouldn’t be thinking about legal precedent when I am trying to write a chorus,” Mr. Bogart said.

Most accusations of plagiarism never go before a judge. Instead, they are settled quietly — and often protected with confidentiality agreements — with the results evident only in the fine print of writing credits.

. . . .

Occasionally, an outlying case will force industrywide adjustment. In 1976, for example, songwriters had to reckon with the idea of unintended infringement after George Harrison was found to have “subconsciously” based his first solo hit, “My Sweet Lord,” on a girl-group classic, the Chiffons’ “He’s So Fine.” After the decision, Mr. Harrison wrote in his memoir, he felt a “paranoia about songwriting that had started to build up in me.”

The “Blurred Lines” case, many lawyers and executives say, has become the latest watershed, putting the commonly understood rules of songwriting up for debate.

As songwriters often remark, there are only so many notes in the scale, and influence is essential to the art. Harvey Mason Jr., a songwriter and producer, said the “Blurred Lines” case “unnerved a lot of people writing songs, because a lot of what inspires creative people is the work that has been done before.”

. . . .

At the “Blurred Lines” trial, an eight-person jury heard detailed and esoteric testimony by expert witnesses from both sides about what, if anything, Mr. Thicke and Mr. Williams had copied from “Got to Give It Up.” The Gaye estate contended that specific musical passages had been lifted. Lawyers for Mr. Thicke and Mr. Williams countered that they had simply created a genre piece with a similar groove and feel, the kind of thing that musicians — and copyright lawyers — had long considered fair game.

In a dissenting opinion published when the case was upheld last year, Judge Jacqueline H. Nguyen of the United States Court of Appeals for the Ninth Circuit argued that the verdict allowed the Gaye estate “to accomplish what no one has done before: copyright a musical style.”

Mr. Thicke was also a fickle witness. He had given interviews citing “Got to Give It Up” as inspiration for his song, only to deny it in depositions, saying he had been intoxicated when talking with music journalists.

“I doubt if any more artists will tell Rolling Stone where they got their inspiration,” Tor Erik Hermansen, part of the songwriting and production duo Stargate, said in an interview.

Although the case did not result in any changes to copyright law, it has had a palpable effect. More songwriters are arming themselves with expensive insurance policies. And musicologists — academically trained experts who sometimes consult in copyright cases — are in greater demand.

. . . .

Songwriters now face heightened scrutiny of their work while it is still in progress, as record companies and music publishers sometimes vet new songs for echoes of past works.

“I’ve had a couple experiences where I was writing something and a lawyer and musicologist said, ‘It sounds like this old song, it’s a very active estate, they’re going to come after you,’” said Mr. Mason, who has worked with stars like Whitney Houston and Kelly Clarkson. “I changed a few notes.”

Link to the rest at The New York Times

Congress Shall Make No Law

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.

~ The First Amendment to The Constitution of the United States

Why More Artists Face Jail Around the World

From The Financial Times:

The contemporary artist Luis Manuel Otero Alcântara was sitting peacefully on the steps of the El Capitolio building in Havana when the police came for him. Arrested ahead of a protest against a law that subjects all creative activity in Cuba to state approval, he cried out in pain as he was bundled into their car. I watched the shocking video footage in his apartment a few months later, in November last year. Two weeks later he was back in a cell along with his partner, curator Yanelys Nuñez Leyva, arrested on suspicion of planning another protest against Decree 349, as the law is officially known. Earlier this year I spoke to another redoubtable Cuban contemporary artist, Tania Bruguera, whose arrest in December was just her latest run-in with the authorities. In 2014-2015, she was detained repeatedly in the eight months after she tried to stage a performance, “Tatlin’s Whisper”, that asked citizens to speak freely into a microphone in Havana’s Revolution Square.

Her installation about the global refugee crisis graced the Turbine Hall of London’s Tate Modern this winter. “There is a moment when you understand you can lose everything,” she tells me at Tate when I ask about the strains of prison. “But my anger turns out to be bigger than my need for personal freedom.” These Cubans are part of a tide of artists enduring imprisonment around the world in recent years — a marked change from the 20th century, when writers were more at risk of persecution.

. . . .

Art and politics are old bedfellows. Yet on the whole, the Old Masters took care not to bite the hands that fed them. Paolo Uccello’s magnificent “Battle of San Romano”, a set of three paintings to commemorate Florence’s conflict with Siena in 1432, polished the military reputation of his city so brightly that two of the panels were stolen by Lorenzo de’ Medici from their rightful owners. Nearly four centuries later, Francisco Goya embarked on a series of etchings, “Disasters of War”, that revealed the horrors inflicted on civilians and soldiers during the 1808-14 conflict between France and Spain. He was described by his biographer Robert Hughes as one of the “true ancestors of war reporting” — though the etchings were never published during Goya’s lifetime.

. . . .

Increased politicisation is only part of the story. Ivor Stodolsky, who set up AR along with fellow curator Marita Muukkonen in 2013 to provide residencies for visual artists at risk of persecution in their homelands, suggests that the new threat to artists stems ultimately from the growing power of the media in which they work. “The 21st century is a visual culture,” he says. “It’s beginning to be our dominant form.”

Stodolsky believes that one of the reasons artists are in trouble is because “today, visual art is about more than just visuals”. Indeed, the art world is an increasingly cross-disciplinary landscape. Once the province of painting and sculpture, it now encompasses photography, film, sound and performance.

Link to the rest at The Financial Times

Here is one of Mr. Alcântara’s works

And a video by several Cuban artists.

.

B&N Press Now Offers Ebook Coupon Codes

From The Digital Reader

B&N Press continues to add features, lending credence to rumors about an impending sale of the Nook division.

I just got an email from B&N, informing me that B&N Press now offered users ebook coupon codes and better formatting control over book descriptions.

Currently in beta, B&N’s ebook coupon codes give publishers the option to create a coupon code to market and sell their books at a specially discounted price to Nook readers. There’s no meed to worry about price matching on other retail sites., and users control all aspects of the campaign so that they can find and reward Nook readers. This feature is found in the Manage Promotions section from the Projects page.

Link to the rest at The Digital Reader

PG says he hadn’t thought about B&N Press for a long time.

His initial unmoderated response was similar to one he sometimes has when he sees an article about a movie star he remembers from his childhood – “Is she still alive?”

PG also wonders who might be interested in purchasing B&N Press.

The only entity that initially came to mind was Kobo, but, given Barnes & Noble’s general ineptitude in digital matters, PG suspects any potential purchaser would discount the price offered to take into consideration the expense involved in cleaning up the electronic back office.

Since Apple has a bazillion dollars stashed away and is looking at more content plays in general, perhaps it might buy B&N Press to beef up its offerings.

The first inquiry that comes to PG’s mind for either acquirer is how much overlap there might be between the titles published on Kobo, Apple Books and B&N Press. PG suspects most authors who don’t follow the path of ebook exclusivity with Amazon do so planning to go wide. Once you get your epub up on Kobo, is there a reason not to post it on Apple and B&N as well?

An additional factor that will keep the attorneys for any potential acquirer of B&N Press busy is a potential bankruptcy filing by Barnes & Noble in the future. Care must be taken to avoid having a B&N Press acquisition sucked into that morass.

Apple Violated Qualcomm Patent, U.S. Trade Judge Rules

When it rains,

From The Wall Street Journal:

A U.S. trade judge recommended that some iPhones be barred from import on Tuesday after finding that Apple Inc. violated a patent held by Qualcomm Inc., handing the mobile-phone chip giant a victory in its long-running feud with its erstwhile business partner.

The decision from the U.S. International Trade Commission judge means that Apple, which has its iPhones assembled overseas before sending them to the U.S. and other markets, could be barred from selling iPhones that infringe on a Qualcomm patent covering strategies for conserving power and improving battery life. The judge’s two-page order didn’t specify which iPhone models it covered.

The decision by ITC administrative law judge MaryJoan McNamara, however, is subject to review by the full six-member ITC as well as by the Trump administration, either of which could change the findings and reverse the recommended ban. Presidents have vetoed ITC moves before, including in 2013 when the Obama administration prevented an ITC ban on the sale of some iPhones and iPads from taking effect after Samsung Electronics Co. won a case there.

. . . .

Qualcomm’s complaints against Apple—including another ITC case where a final decision was expected later Tuesday—are part of a world-spanning legal battle between the companies. The fight came to a boil in early 2017, when Apple sued Qualcomm in federal court in San Diego, alleging the chip maker extracted extortionate rates for patent licenses by leveraging its dominance in the modem-chip market. That case is set to go to trial next month.

The U.S. Federal Trade Commission also filed suit against Qualcomm in 2017, focusing on the chip company’s allegedly monopolistic practices. Qualcomm, which denies the claims and says its pricing practices are fair, has countered by alleging that Apple violated its patents in Germany, China, the U.S. and other jurisdictions.

. . . .

In a separate case brought by Qualcomm, a jury in San Diego this month found that Apple violated the same Qualcomm patent that the ITC found issue with in the case set for a decision later Tuesday. The jury awarded Qualcomm $31 million in damages for Apple’s violation of three patents in that case.

Link to the rest at The Wall Street Journal 

Our Software Is Biased like We Are. Can New Laws Change That?

From The Wall Street Journal:

Lawyers for Eric Loomis stood before the Supreme Court of Wisconsin in April 2016, and argued that their client had experienced a uniquely 21st-century abridgment of his rights: Mr. Loomis had been discriminated against by a computer algorithm.

Three years prior, Mr. Loomis was found guilty of attempting to flee police and operating a vehicle without the owner’s consent. During sentencing, the judge consulted COMPAS (aka Correctional Offender Management Profiling for Alternative Sanctions), a popular software system from a company called Equivant. It considers factors including indications a person abuses drugs, whether or not they have family support, and age at first arrest, with the intent to determine how likely someone is to commit a crime again.

The sentencing guidelines didn’t require the judge to impose a prison sentence. But COMPAS said Mr. Loomis was likely to be a repeat offender, and the judge gave him six years.

An algorithm is just a set of instructions for how to accomplish a task. They range from simple computer programs, defined and implemented by humans, to far more complex artificial-intelligence systems, trained on terabytes of data. Either way, human bias is part of their programming. Facial recognition systems, for instance, are trained on millions of faces, but if those training databases aren’t sufficiently diverse, they are less accurate at identifying faces with skin colors they’ve seen less frequently. Experts fear that could lead to police forces disproportionately targeting innocent people who are already under suspicion solely by virtue of their appearance.

. . . .

No matter how much we know about the algorithms that control our lives, making them “fair” may be difficult or even impossible. Yet as biased as algorithms can be, at least they can be consistent. With humans, biases can vary widely from one person to the next.

As governments and businesses look to algorithms to increase consistency, save money or just manage complicated processes, our reliance on them is starting to worry politicians, activists and technology researchers. The aspects of society that computers are often used to facilitate have a history of abuse and bias: who gets the job, who benefits from government services, who is offered the best interest rates and, of course, who goes to jail.

“Some people talk about getting rid of bias from algorithms, but that’s not what we’d be doing even in an ideal state,” says Cathy O’Neil, a former Wall Street quant turned self-described algorithm auditor, who wrote the book “Weapons of Math Destruction.”

“There’s no such thing as a non-biased discriminating tool, determining who deserves this job, who deserves this treatment. The algorithm is inherently discriminating, so the question is what bias do you want it to have?” she adds.

. . . .

An increasingly common algorithm predicts whether parents will harm their children, basing the decision on whatever data is at hand. If a parent is low income and has used government mental-health services, that parent’s risk score goes up. But for another parent who can afford private health insurance, the data is simply unavailable. This creates an inherent (if unintended) bias against low-income parents, says Rashida Richardson, director of policy research at the nonprofit AI Now Institute, which provides feedback and relevant research to governments working on algorithmic transparency.

The irony is that, in adopting these modernized systems, communities are resurfacing debates from the past, when the biases and motivations of human decision makers were called into question. Ms. Richardson says panels that determine the bias of computers should include not only data scientists and technologists, but also legal experts familiar with the rich history of laws and cases dealing with identifying and remedying bias, as in employment and housing law.

Link to the rest at The Wall Street Journal

Should Government Criminalize Violent Artistic Expression?

From Clannco:

Think of an artwork, song, film, video, poster, or photograph. In fact, with the omnipresence of social media, think of expression that any person—layperson or self-proclaimed artist—may disseminate into public space and which may be perceived as threatening to a group or individual. The creator of this expression may believe that her expression is just a “passive” and aesthetic expression of her thoughts and feelings and not an expression with intent to cause actual harm to a person or group. However, that person or group may believe, right or wrongly, that the expression constitutes a true threat against them. How then do we assess whether this threatening expression is in fact “true”?

In November 2013, a Pennsylvania trial court convicted a young, black rap artist, Jamal Knox, aka “Mayhem Mal,” for terroristic threats, witness intimidation, and conspiracy to commit terroristic threats. Knox appealed his conviction but the Pennsylvania Supreme Court affirmed the trial court. The conviction was based solely on the content of a song created in 2012 by Knox and Rashee Beasley, aka “Soldier Beaz,” that was uploaded to Facebook and Youtube. Knox’s song, “Fuck tha Police”—an obvious homage to NWA’s seminal 1988 release—contains lyrics about police generally as well as two Pittsburgh police officers who were involved in arresting Knox in 2012. The song lyrics expressed, in part, “I’ma jam this rusty knife all in his guts and chop his feet,” “artillery to shake the mother fucking’ streets,” and in relation to a police officer’s “shift over at three and I’m gonna fuck up where you sleep.” A Pittsburgh police officer who had been monitoring Knox and Beasley’s online presence discovered the song three days later, leading to the criminal charges against Knox and Beasley.

Can we objectively believe that Knox’s song constitutes a true threat? I don’t think so. In fact, Knox’s song presents us with a long standing tradition not only in rap but also other music genres (think heavy metal, punk, country) of including what some individuals deem to be violent and threatening lyrics.

. . . .

There is widespread disagreement among federal and state courts as to how to assess whether a statement is a “true threat” and thus unprotected by the First Amendment. Most courts apply what is called an objective standard, where the government is required to show that a reasonable person would regard the statement as a sincere threat. A minority of courts apply the subjective standard, which requires the government to show only the speaker’s intent to threaten. The U.S. Supreme Court had provided us with an answer to this question before, holding, in Watts v. United States (1969) that the First Amendment protects statements that a reasonable person would not regard as threatening. However, as often happens in Supreme Court jurisprudence, in a 2003 case, Virginia v. Black, concerning the constitutionality of a Virginia statute that criminalized the burning of a cross in public view “with the intent of intimidating any person,” the U.S. Supreme Court confused years of precedent by holding that true threats were “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” This confusion led some courts to read Black to mean that the standard now is purely subjective, and thus the government must show only the speaker’s subjective intent to threaten. Both Pennsylvania courts applied the “subjective” test in convicting Knox.

. . . .

Allowing the government to regulate expression that is in fact threatening to a person or group is reasonable. However, and as with any form of government action, this permission to regulate must be narrowly tailored. Allowing the government to convict and incarcerate individuals for expression that is not objectively threatening will restrain artistic speech and is contrary to First Amendment principles. In fact, the U.S. Supreme Court itself agreed, stating in Virginia v. Black that a ’hallmark’ of the constitutional right to free speech is “to allow ‘free trade in ideas’—even ideas that the overwhelming majority of people might find distasteful or discomforting.”

Link to the rest at Clannco

 

Seven Negotiation Lessons from Amazon’s Hq Disaster in Queens

From Working Knowledge, The Harvard Business School:

As Amazon’s stunning pullout from New York fades into the news archives, its potent lessons for business negotiators risk being lost. Highly promising deals in diffuse multiparty settings with many potential spoilers, like Amazon’s planned headquarters in Queens, often collapse as a result of negotiating too narrowly with those who have formal power and authority. Negotiation experts have a patriarchal name for a version of this classic—and avoidable—mistake: Decide-Announce-Defend or DAD.

Along with gaining the full-throated support of New York Mayor Bill de Blasio and Governor Andrew Cuomo, Amazon officials understandably figured that the prize it offered New Yorkers would sell itself: 25,000+ jobs paying in excess of $100,000 each with all the ancillary economic benefits. Decide (on Long Island City, Queens), Announce (the choice), and Defend (from attacks) … and, if you’re still standing, you win.

Except, Amazon decided, announced, defended, lost, and abruptly pulled out, blindsiding virtually everyone involved. As New York’s chief negotiator for the deal mourned, this “was supposed to have been a coronation but instead was more like a coronary.”

. . . .

This surprisingly common result is why an “A” is often appended to DAD: “DADA” means Decide-Announce-Defend-Abandon. An apparently irresistible deal blessed by the top authorities runs aground on unanticipated opposition. The trail of such failed deals is long;

. . . .

For instance, consider the award of the 2024 Olympics to Boston over Los Angeles, San Francisco, and Washington DC. Boston’s successful bid was driven by the support of the state’s governor, Boston’s mayor, and many of its most influential citizens. Yet a small group of opponents catalyzed a local movement that, despite being outspent 1,500 to one by the bid’s boosters, ultimately caused the city to back out in 2015.

. . . .

The frequent failures of DAD-style negotiation have led some project advocates to seek consensus among all stakeholders. In a city like Queens, riven with many factions and political agendas, Amazon would never have reached full consensus and didn’t try. Requiring full consensus in a multiparty deal makes you hostage to the most extreme or reluctant party. When you can anticipate unconditional opponents, or skeptics with diverse agendas who may opportunistically band together, don’t hand them blocking power.

So let’s assume that, with many contenders, Amazon had powerful reasons to choose New York. Comparative advantages presumably ranged from a large and highly educated employee pool to big incentives and to local entertainment options galore—not to mention that, once Amazon’s new headquarters were built, much of New York’s congressional delegation could be counted on for political support . . . in addition to that from Washington State and elected officials from its other new headquarters in Virginia. Apart from avoiding the DAD and full consensus traps, what could Amazon have done to retain these New York advantages? What are the broader lessons for those facing similarly challenging negotiations?

. . . .

The goal should be to build “sufficient consensus” for a “winning coalition” in spite of potential blockers. This means earning enough support among enough of the right parties to gain agreement on your proposal and ensure successful implementation. Building such a sustainable winning coalition involves systematic steps that my colleague David Lax and I call a “negotiation campaign”.

  • In a complex, multiparty setting, don’t take victory for granted, ever. Today, social media can quickly amplify the views of even a few vocal opponents, giving voice to latent negative concerns of many otherwise passive groups. As Amazon learned, an apparent “movement” can seemingly spring up from nowhere. It can rapidly gain traction, surprising and thwarting the confident protagonists of an apparently popular project.

. . . .

  • Identify and nurture potential allies before you need them. To Amazon, the supporters seemed self-evident; after all, more than 200 cities desperately vied for the prize it bestowed on New York. Yet well-organized opponents overcame the unorganized supporters of the deal. Old-school reliance on the mayor and governor, powerful power brokers, proved unable to mobilize sufficient backing. Beyond cultivating elite support, a project sponsor should systematically work with community groups and local leaders so they feel intense personal and tangible stakes in the proposal. Detailed preliminary discussions with construction trades should make the huge amount of new work crystal clear. Early “job fairs” with sample applications could help persuade lower-skilled groups that thousands of new support jobs and training opportunities would be forthcoming along with the $100,000+ job bonanza for high-skilled workers. Community groups looking for improved parks, sidewalks, and local amenities could be nurtured at relatively low cost with “good neighbor” credible commitments. Failing to send CEO Jeff Bezos to New York to stroke the egos of local supportive politicians and learn firsthand of any qualms was a missed opportunity. Having identified and nurtured supporters, they can be activated in favor of your project if and as needed.

. . . .

  • Remember that negotiation does not end with a “yes,” but requires enough ongoing support for implementation and sustainability. The kind of negotiation campaign that I’ve sketched is designed to build a sufficient, sustainable “winning coalition” on behalf of an initiative like Amazon’s. But as this experience shows, an initial “yes” is only the entry point to a successful project, which requires sustained support for long-term success.

Link to the rest at Working Knowledge

At a recent lunch with a group of attorney friends, the discussion turned to negotiation successes and failures.

PG was reminded of an interest in Negotiations Studies from several years ago and did some online research to follow up with his lunch companions on a couple of discussion points.

Negotiation Studies is a serious field for academic research. The topic often overlaps both business and law schools since graduates of both will be involved in negotiations during their careers.

All business people, including authors, are likely to be involved in more than one business negotiation in connection with their work, so PG will drop a negotiation item into TPV from time to time. Publishing contracts immediately leap to mind. However, negotiated agreements with cover artists, editors and book designers are also possibilities for indie authors.

One of the basic ideas in Negotiation Studies is that a successful negotiation leads to a successful conclusion for both parties and, where applicable, a mutually-beneficial long-term business relationship. Seeking a win-win resolution is the optimum result for the large majority of business negotiations. The disastrous end of the Amazon/New York HQ2 negotiations results, as the OP indicates, at least in part, a failure to apply good negotiation practices and principles to putting the deal together.

One example of a poor negotiation outcome, at least in the United States, often involves negotiating the price and terms for buying a new or used automobile.

Shoppers worry about being subjected to high-pressure negotiation tactics, paying more than they should have paid for the vehicle, etc., etc. There are certainly enough short-sighted auto salespersons to provide some basis for that fear.

However, if the auto dealer or salesperson considers the lifetime value of a satisfied customer, it’s clear that being on the winning side of a zero-sum psychological manipulation sales session is not the best outcome.

One of the largest expense items for a great many businesses, including auto dealers, is attracting customers. Billboards, television commercials, radio ads, direct mail, the cost of an attractive dealership facility in a good location, etc., etc., are an enormous expenditure focused on having individuals who are interested in purchasing an automobile come to the dealership (and not go to a competing dealership).

If a customer has a positive car-buying experience, all sorts of additional benefits accrue to the dealership. When the time comes for the customer to purchase another automobile, are they more likely to return to a dealer (and individual salesperson) that provided them with a good acquisition experience than they are to take a chance on having a poor experience by patronizing an unknown dealer?

When it’s time to service their vehicle, is a satisfied customer more or less likely to bring the vehicle back to the dealership that treated them fairly (and, with a smart dealer, provides a positive service experience)?

If a friend or relative mentions they would like to buy a new car, is the satisfied customer more likely to recommend the dealer and salesperson who provided a good purchase experience and sold the vehicle at a fair price? Other than the purchase of a home, an automobile is likely to be the most expensive purchase a resident of the US (and perhaps other countries as well) will make during their lifetime. An auto dealer that makes the purchase process feel fair and easy is providing a service to the customer by reducing the anxiety that might otherwise accompany the expenditure of so much money.

Bringing the discussion back to authors and books, PG suggests the negative experiences that accompany some of the take-it-or-leave-it negotiation tactics many publishers employ do not redound to the publishers’ benefit over the long term. Effectively requiring that an author who feels competent to negotiate her/his own publishing contract to retain and pay for a literary agent is another poor business practice in the field.

Amazon, Draft2Digital, Smashwords, etc., are a delightful change for many authors who were previously published traditionally. Choosing their own editor and cover designer is another relief for authors who experienced revolving door editors and cover designs that were obviously created by the lowest bidder.

Viewpoint Discrimination

As some visitors to TPV will already understand, the First Amendment to the United States Constitution reads as follows:

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.

This amendment protects four fundamental rights of US citizens:

  1. Freedom to exercise their religious beliefs and prohibition against the creation of a government-approved religion
  2. Freedom of individual and collective speech and of the press
  3. The right to peaceably assemble for political and other purposes
  4. The right to communicate with government entities and individuals within the government regarding the improper operation of government

Among the elements of the First Amendment, freedom of speech and of the press – a means of disseminating speech beyond an individual or small group to a broader audience – has often been described as the most fundamental of the rights of a free people and the most necessary if government oppression and overreach is to be avoided.

First Amendment law is a wide-ranging and extensive field that has evolved and expanded over time. At the time of its passage, the “press” was based upon the printing press and generally comprised the printing of newspapers, books, pamphlets and posters.

Broadcast media of various types, including satellite broadcasting (which media are subject to government licensing and, in some cases, international treaties, due to the limits to the usability of various portions of the spectrum and the potential for interference with signal reception without some sort of system for allocating exclusive use of slices of spectrum bandwidth) and the Internet are also subject to First Amendment protection in the US.

The prohibition against unreasonable restrictions on freedom of speech generally affects restrictions by government, not by private individuals or organizations. A private homeowner can prohibit an individual or group of people from loudly protesting on the front lawn of the lot on which the home is built with virtually no restrictions. However, if the protest is held on a public sidewalk in front of the homeowner’s property, the circumstances under which the local government may prohibit or restrict such a protest fall under the ambit of the First Amendment’s speech protections.

One element of First Amendment law is Content Discrimination by government, described as:

[G]overnment has no power to restrict expression because of its message, its ideas, its subject matter, or its content. . . To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control. Any restriction on expressive activity because of its content would completely undercut the ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open. (Wikipedia)

An especially-protected sub-part of Content Discrimination is Viewpoint Discrimination. Restrictions that apply to certain viewpoints but not others are usually overturned by courts when challenged.

Viewpoint discrimination is a form of content discrimination particularly disfavored by the courts. When the government engages in content discrimination, it is restricting speech on a given subject matter. When it engages in viewpoint discrimination, it is singling out a particular opinion or perspective on that subject matter for treatment unlike that given to other viewpoints.

For example, if an ordinance banned all speech on the Iraq War, it would be a content-based regulation. But if the ordinance banned only speech that criticized the war, it would be a viewpoint-based regulation. (The First Amendment Encyclopedia)

In the United States, particularly in some colleges and universities, some specific terms have come to be regarded as beyond the pale. The use of terms that are deemed disparaging to certain ethnic groups have fallen into that category, regardless of whether they were historically used as a neutral description of individuals of a certain race.

From Forbes:

Imagine that a group of musicians called themselves The N-Words. The uproar would be loud and swift, but should government deny them the right to use that name? As abhorrent as we might find that name, the answer is no. Government should be neutral on art, not judge it.

Censorship should not be wielded as a tool to suppress creativity in the marketplace , but it has been at the U.S. Patent and Trademark Office (PTO) until earlier this summer.

The Slants, an Asian-American band which adopted the slur against Asian people in hopes of turning it into something “beautiful or a point of pride,” were denied when they applied for a trademark by the PTO to protect their band’s name. Trademarks, a type of intellectual property, prevent other businesses from using similar marks or names that could cause confusion. They also allow the PTO to police against copycats and bring legal action against those who infringe.

The Slants’s application was denied on the grounds that the name violated the “disparagement clause” of federal trademark law. This clause prohibits the government from granting trademarks that insult any group of people. The Slants successfully appealed their case in various courts, but the PTO held firm and took the case to the Supreme Court, where The Slants won on free speech grounds (Matal v. Tam).

The Supreme Court unanimously struck down the disparagement clause as unconstitutional. Justice Samuel Alito Jr., who wrote the opinion, affirmed a “bedrock” principle of the First Amendment: speech cannot be banned because it offends. Alito noted, “We have said time and again that ‘the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.’”

. . . .

Government does not have license to shut down art that offends or messages they disapprove of – even those that others might find offensive, distasteful, and hurtful. The proper role of government is to provide and protect intellectual property rights — no more.

This case came at a critical moment. From college campuses to the entertainment industry, speech police are trying to ban any speech that offends their sensibilities. The Supreme Court has affirmed that every American has a right to express his or her thoughts – even if they offend others. The First Amendment precisely protects minority and dissenting views such as using a slur as the name of a band.

Link to the rest at Forbes

PG realized that the term “beyond the pale” has also fallen into disuse, although he is not aware of anyone describing it as “The BTP-Words”.

From The Phrase Finder:

‘[P]ale’ is the noun meaning ‘a stake or pointed piece of wood’, a meaning now virtually obsolete except as used in this phrase, but still in use in the associated words ‘paling’ (as in paling fence) and ‘impale’ (as in Dracula movies).

The paling fence is significant as the term ‘pale’ came to mean the area enclosed by such a fence and later just figuratively ‘the area that is enclosed and safe’. So to be ‘beyond the pale’ was to be outside the area accepted as ‘home’.

Catherine the Great created the Pale of Settlement in Russia in 1791. This was the name given to the western border region of the country, in which Jews were allowed to live. The motivation behind this was to restrict trade between Jews and native Russians. Some Jews were allowed to live, as a concession, ‘beyond the pale’.

Pales were enforced in various other European countries for similar political reasons, notably in Ireland (the Pale of Dublin) and France (the Pale of Calais, which was formed as early as 1360).

The phrase itself originated later than that. The first printed reference comes from 1657 in John Harington’s lyric poem The History of Polindor and Flostella. In that work, the character Ortheris withdraws with his beloved to a country lodge for ‘quiet, calm and ease’, but they later venture further:

“Both Dove-like roved forth beyond the pale to planted Myrtle-walk”.

Such recklessness rarely meets with a good end in 17th century verse and before long the lovers are attacked by armed men with ‘many a dire killing thrust’. The message is clear – ‘if there is a pale, decent people stay inside it’, which conveys exactly the figurative meaning of the phrase as it is used today.

Link to the rest at The Phrase Finder

Business Musings: Ghostwriting, Plagiarism, and the Latest Scandal

From Kristine Kathryn Rusch:

Recently, I’ve been getting a lot of questions from interviewers that I have never gotten before. They ask, “Are you going to join the latest trend and hire ghostwriters to put out more books in your series?”

So far, I have managed to refrain (at least on podcasts) from responding, “Are you fucking kidding me?” and simply say, “No, I’m too much of a control freak.”

But I have a longer answer in my head. The answer is complicated. Let me see if I can break it down for you.

Readers don’t buy plots. They buy a writer’s point of view, her style, and the way she tells a story. Some idiot whose name I will not repeat and whose blog I will not link to wrote in response to the latest scandal (which I will discuss below): “What constitutes plagiarism in a genre in which formulaic storylines and themes are the norm?”

If the idiot understood copyright, she would know the answer to that question: What gets copyrighted is the form the work takes, not tropes or the formula.

Readers like tropes and formulas. They like familiar stories well told. They also like familiar stories with twists that take the familiar and make it something new.

Readers follow writers, as a brand, and readers are very smart. Readers know that a book by James Patterson will have one voice, but a book by James Patterson and Maxine Paetro will have a completely different voice. Readers will often say (even in the reviews) that they might like Patterson by himself, but refuse to read the books he’s written in collaboration with someone else.

The voice changes when someone else writes a book in the same series. Ian Fleming’s James Bond is not the same as Jeffrey Deaver’s, no matter how hard Deaver (whose work I love) tried to catch Fleming’s Bond.

If I want to remain true to my characters and my readers, I will never bring in a ghostwriter. Never.

If I worked with another writer, that writer would get credit in a shared byline.

. . . .

I’m also aware of the fact that writing in someone else’s universe is a skill that not every writer has. I’ve played in other people’s universes. I’ve written more tie-in novels than I want to think about. My favorites were Star Trek novels, but I have written a Star Wars novel, and X-Men, and several others, often in collaboration with my husband Dean. Note that these are media properties that already have more than one writer on board. In fact, they have an entire team of people putting the properties together, because media properties are, by definition, assembled collaboratively.

And still, people oversee these novelizations. The licensors review them with a fine-tooth comb. They make sure that nothing violates the rules of the universe and that the characters are consistent and that everything fits into what the fans expect.

. . . .

Because fans get angry when someone writes something that doesn’t fit in an established universe. Some established universes bring in lawyers. And all involve contracts state in unequivocal terms that the writer is writing original material in a particular universe, and that the words and writings are the writer’s own, not cribbed from other sources.

Here’s the thing about contracts: the lawyers who write them try to see every eventuality, but sometimes they miss. And when they miss, they rectify that miss in the next contract. So the fact that there are long clauses about originality and plagiarism and libel and all of those things in traditional publishing work-for-hire contracts means that somewhere, somewhen, someone plagiarized or libeled someone in a work-for-hire project.

. . . .

When I watched the collaboration start in the indie world—and when one big selling KDP author told me that he doesn’t have contracts with his collaborators because they all trust each other, well, I just about had a fit. I tried to talk him into contracts, but no, that’s a trust thing, apparently. And it’ll bite him one day, in a very bad way.

Then, shortly thereafter, I learned that dozens of big selling indie authors can’t produce books fast enough to game the Amazon algorithms, so those writers started hiring ghostwriters to produce more books, so the writer had time to write more books too.

I remembered thinking: that’s not how it works. A writer with a dozen ghostwriters would be spending all her time overseeing those writers, not writing more. She’d have less time not more.

Unless she hired someone to oversee them. And then she’d have to trust that person implicitly. I thought about the infrastructure it would take to maintain that, the readers and the lawyers for the contracts and thought, well that’s a blog post one day, warning writers away from doing this.

. . . .

In the last twenty-four hours, things got even more complicated. A few people Serruya had hired as ghostwriters –and who quit when they saw what they had to work with—claim that Serruya cobbled the books together from random quotes from various novels, and had the ghostwriters polish the damn things.

. . . .

[W]hat’s to stop the ghostwriters from plagiarizing? It’s not their name on the manuscript. And I know some of the writers who are hiring ghostwriters. Those writers aren’t vetting the books. They’re not doing the kind of due diligence that college professors and high school teachers do to see if the writing is plagiarized.

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.

PG will add a note to the description of standard legal contracts in the OP.

Standard contracts that a large organization uses never get shorter. Over time, they grow. When a situation arises that hasn’t been clearly addressed in the contract, a new contract provision is drafted and inserted. If a new court decision comes down relating to the subject of the contract, a clarifying paragraph is added. If a lawyer for the company sees a similar contract from another company that includes a provision the lawyer hasn’t seen before, the new provision will be dropped into the standard contract.

If the contract is used over a period of several years, it grows and grows and grows. A ten-page contract becomes a twenty-page contract on its way to becoming a thirty-page contract.

If counsel is not paying attention to a long contract, a new provision might conflict with or create an ambiguity in the meaning of a prior provision in the contract, so the careful lawyer will do at least a quick review of the entire document to avoid this problem.

On the question of copyright protection for contracts, technically, there is nothing in the U.S. copyright laws that precludes registering a contract for copyright protection. Undoubtedly, it has happened at some time, but PG hasn’t heard of any litigation filed by one lawyer successfully asserting infringement of a copyright on a contract by another lawyer. (He would be happy to learn about such litigation in the comments if anyone knows of such happening.)

Law books containing form contracts of various types are available for purchase through major legal publishers. As far as copyright for individual contracts in such a book, the purpose for which attorneys purchase such publications is to use them as a basis for drafting contracts for their own clients. One might argue an implied license to do so accompanies each such book.

Back to a copyright claim for an individual contract, PG suggests it might be difficult for the author to establish he/she had not utilized material created by others in the creation of the contract and to demonstrate the contract as a whole was the result of original creative work by the author.

PG will note that an interesting lawsuit was filed several years ago by an insurance company which had labored to create a plain-English version of its previous policies and related documents which were definitely-not-plain-English. Another insurance company copied the plain-English versions verbatim and was sued by the first company. In that case, the court found the first company had a valid copyright to its documents and the second company had infringed those copyrights.

In the fraternity/sorority of lawyers, PG suspects any attorney who claimed a copyright in a contract form would certainly be regarded as a jerk. Again, lawyers copy from the legal work of other lawyers all the time, in part, as a way of saving clients the expense of paying a lawyer to create a contract from a blank screen.

Yes, Retailers Are Colluding to Inflate Prices Online

From Fast Company:

Have you ever searched for a product online in the morning and gone back to look at it again in the evening only to find the price has changed? In which case you may have been subject to the retailer’s pricing algorithm.

Traditionally when deciding the price of a product, marketers consider its value to the buyer and how much similar products cost, and establish if potential buyers are sensitive to changes in price. But in today’s technologically driven marketplace, things have changed. Pricing algorithms are most often conducting these activities and setting the price of products within the digital environment. What’s more, these algorithms may effectively be colluding in a way that’s bad for consumers.

Originally, online shopping was hailed as a benefit to consumers because it allowed them to easily compare prices. The increase in competition this would cause (along with the growing number of retailers) would also force prices down. But what are known as revenue management pricing systems have allowed online retailers to use market data to predict demand and set prices accordingly to maximize profit.

These systems have been exceptionally popular within the hospitality and tourism industry, particularly because hotels have fixed costs, perishable inventory (food that needs to be eaten before it goes off), and fluctuating levels of demand. In most cases, revenue management systems allow hotels to quickly and accurately calculate ideal room rates using sophisticated algorithms, past performance data and current market data. Room rates can then be easily adjusted everywhere they’re advertised.

. . . .

These revenue management systems have led to the term “dynamic pricing.” This refers to online providers’ ability to instantly alter the price of goods or services in response to the slightest shifts in supply and demand, whether it’s an unpopular product in a full warehouse or an Uber ride during a late-night surge.

. . . .

However, new algorithmic pricing programs are becoming far more sophisticated than the original revenue management systems because of developments in artificial intelligence. Humans still played an important role in revenue management systems by analyzing the collected data and making the final decision about prices. But algorithmic pricing systems largely work by themselves.

. . . .

The algorithms study the activity of online shops to learn the economic dynamics of the marketplace (how products are priced, normal consumption patterns, levels of supply and demand). But they can also unintentionally “talk” to other pricing programs by constantly watching the price points of other sellers in order to learn what works in the marketplace.

These algorithms are not necessarily programmed to monitor other algorithms in this way. But they learn that it’s the best thing to do to reach their goal of maximizing profit. This results in an unintended collusion of pricing, where prices are set within a very close boundary of each other. If one firm raises prices, competitor systems will immediately respond by raising theirs, creating a colluded non-competitive market.

Monitoring the prices of competitors and reacting to price changes is normal and legal activity for businesses. But algorithmic pricing systems can take things a step further by setting prices above where they would otherwise be in a competitive market because they are all operating in the same way to maximize profits.

This might be good from the perspective of companies, but is a problem for consumers who have to pay the same everywhere they go, even if prices could be lower. Non-competitive markets also result in less innovation, lower productivity and, ultimately, less economic growth.

. . . .

The European Commission has warned that the widespread use of pricing algorithms in e-commerce could result in artificially high prices throughout the marketplace, and the software should be built in a way that doesn’t allow it to collude.

Link to the rest at Fast Company

In the US, price-fixing is illegal under U.S. antitrust laws.

From The Federal Trade Commission:

Price fixing is an agreement (written, verbal, or inferred from conduct) among competitors that raises, lowers, or stabilizes prices or competitive terms. Generally, the antitrust laws require that each company establish prices and other terms on its own, without agreeing with a competitor. When consumers make choices about what products and services to buy, they expect that the price has been determined freely on the basis of supply and demand, not by an agreement among competitors. When competitors agree to restrict competition, the result is often higher prices. Accordingly, price fixing is a major concern of government antitrust enforcement.

A plain agreement among competitors to fix prices is almost always illegal, whether prices are fixed at a minimum, maximum, or within some range. Illegal price fixing occurs whenever two or more competitors agree to take actions that have the effect of raising, lowering or stabilizing the price of any product or service without any legitimate justification. Price-fixing schemes are often worked out in secret and can be hard to uncover, but an agreement can be discovered from “circumstantial” evidence. For example, if direct competitors have a pattern of unexplained identical contract terms or price behavior together with other factors (such as the lack of legitimate business explanation), unlawful price fixing may be the reason. Invitations to coordinate prices also can raise concerns, as when one competitor announces publicly that it is willing to end a price war if its rival is willing to do the same, and the terms are so specific that competitors may view this as an offer to set prices jointly.

Not all price similarities, or price changes that occur at the same time, are the result of price fixing. On the contrary, they often result from normal market conditions. For example, prices of commodities such as wheat are often identical because the products are virtually identical, and the prices that farmers charge all rise and fall together without any agreement among them. If a drought causes the supply of wheat to decline, the price to all affected farmers will increase. An increase in consumer demand can also cause uniformly high prices for a product in limited supply.

. . . .

Antitrust scrutiny may occur when competitors discuss the following topics:

  • Present or future prices
  • Pricing policies
  • Promotions
  • Bids
  • Costs
  • Capacity
  • Terms or conditions of sale, including credit terms
  • Discounts
  • Identity of customers
  • Allocation of customers or sales areas
  • Production quotas
  • R&D plans

A defendant is allowed to argue that there was no agreement, but if the government or a private party proves a plain price-fixing agreement, there is no defense to it. Defendants may not justify their behavior by arguing that the prices were reasonable to consumers, were necessary to avoid cut-throat competition, or stimulated competition.

. . . .

Q: The gasoline stations in my area have increased their prices the same amount and at the same time. Is that price fixing?

A: A uniform, simultaneous price change could be the result of price fixing, but it could also be the result of independent business responses to the same market conditions. For example, if conditions in the international oil market cause an increase in the price of crude oil, this could lead to an increase in the wholesale price of gasoline. Local gasoline stations may respond to higher wholesale gasoline prices by increasing their prices to cover these higher costs. Other market forces, such as publicly posting current prices (as is common with most gasoline stations), encourages suppliers to adjust their own prices quickly in order not to lose sales. If there is evidence that the gasoline station operators talked to each other about increasing prices and agreed on a common pricing plan, however, that may be an antitrust violation.

Q: Our company monitors competitors’ ads, and we sometimes offer to match special discounts or sales incentives for consumers. Is this a problem?

A: No. Matching competitors’ pricing may be good business, and occurs often in highly competitive markets. Each company is free to set its own prices, and it may charge the same price as its competitors as long as the decision was not based on any agreement or coordination with a competitor.

Link to the rest at The Federal Trade Commission

Price fixing is illegal whether competitors set minimum or maximum prices or establish a range of prices within which they will price their goods.

One of the key elements of illegal price-fixing is an agreement (written, verbal, or inferred from conduct) among competitors. A third party that mediates, organizes or facilitates price-fixing among competitors is also guilty of price fixing. (See, for example, Apple and a group of major publishers agreeing to fix prices on ebooks and force Amazon to increase its ebook prices, in PG’s indescribably humble opinion, one of the more inept attempts at price fixing in the hundred-plus years that the practice has been outlawed in the U.S.).

The OP raises an interesting question about whether pricing systems executed by computers using artificial intelligence constitute illegal price fixing.

Under present law, it is clear that price-fixing agreements established among competitors through a third party are illegal and, per Apple and other cases, the third party is also chargeable with price-fixing. If each competitor appoints a third party and the third parties agree to fix prices or set up a system for establishing uniform prices, PG believes that’s also a slam-dunk price-fixing violation.

The issue of whether artificial intelligence systems that look at the same market data and set prices in a similar manner are engaged in price-fixing is very interesting.

Competitors who each look at market, pricing and available competitor data without using artificial intelligence and set the same prices are not guilty of price-fixing so long as there is no agreement between them to fix prices. Competitor A can look at the prices being charged by Competitor B and use that information to adjust its prices. As described in the OP, that’s how many gas stations typically set prices within a given geographic area.

In the gas station illustration, each station is sending pricing signals to the general public, including other gas stations.

If gas station A reduces its price, other gas stations may respond by matching the price cut, cutting prices below those of A as a competitive move, or leaving prices higher than A and banking on other competitive advantages – a more convenient location or better prices on Diet Coke, for example – to offset A’s pricing advantages.

Not matching a price cut represents a temporary strategy, however, because, based on its own decision factors, a competing station can adjust its prices at any time if it perceives its pricing strategy is less than optimum.

Going back to the OP, PG doesn’t see that AI systems watching the prices other AI systems are setting constitutes illegal collusion. If the AI systems somehow communicated with each other and simultaneously increased or dropped prices, the owners of those systems might be guilty of price-fixing.

However, in the absence of some sort of connection beyond closely watching the public pricing activities of competitors, PG doesn’t see any sort of illegal collusion or conspiracy to fix prices. Setting prices to maximize profits is not, by itself, a violation of any law of which PG is aware. It’s a fundamental principle of capitalist economies.

Back to the gas station example – If two gas stations are located across the street from each other and each station assigns an employee to watch the posted prices of the other station and immediately change prices whenever the station across the street changes its prices, that’s not an illegal price-fixing agreement between the two stations.

 

 

How Can Museums Copyright the Works of Old Masters?

From Artrepreneur:

Go to any art museum in the world and you’ll find hundreds of visitors with cameras in hand, snapping photos of their favorite, well-known works. Many of these great pieces no longer have copyright protection yet, these institutions often sell merchandise such as posters that claim the Museum has copyright ownership. As a copyright holder, that institution would have the exclusive right to reproduce the work, make derivatives of it, publicly display it, and distribute it. Conversely, that also means the copyright holder can stop anyone else from doing those things. Take the Monet poster of The Four Trees from the Metropolitan Museum of Art in New York City, shown here. This poster includes a copyright notice:  © 2010 MMA.

If the Monet is in the public domain, meaning free from copyright protection, then how can the Met Museum claim copyright on such an old work? If The Four Trees is really copyright free, then can someone sell an image of the work? Can the Met Museum stop someone from taking a photo of the painting and selling that photo or creating posters from it?  For that matter, who would hold a copyright on a photo of a copyright-free work?

. . . .

Let’s start with some basic tenets of copyright protection. First, the Copyright Act says that copyright protection is available for “original works of authorship fixed in any tangible medium of expression . . . ”  That’s just a fancy way of saying that the work is new and unique. It isn’t a copy or based on someone else’s work and the work has been produced onto something tangible that enables it to be perfectly reproduced and shown to others, such as a work on paper, photos from a digital camera, or a .jpg image file.

. . . .

In addition, the courts have said that for a work to be copyrightable, it must have some level of creativity. Admittedly, this is somewhat subjective and there is no “bright line” from which we know must be crossed to determine the level of creativity required. However, in general, the required level of creativity is very low.

So, if a work fits these criteria; original, tangible and creative, then copyright is automatic and immediate. For example, if you take a photo of your friends with your iPhone camera, the photo is automatically copyrighted because 1) the composition of the photo such as the placement and position of your friends and the setting is unique and original; 2) the choices you made when taking the photo, such as the angle  and distance is considered creative; 3) the photo is captured by the camera sensor so it is fixed in a tangible medium. All three criteria are therefore met.

. . . .

Now that we know the basic factors for copyright eligibility, let’s use these concepts to analyze whether the Met Museum can claim a copyright for the Monet poster. First, we know the poster is fixed in a tangible medium. In this case, it is the paper the poster is printed so that part is fine.

What about originality? One could argue that the Met Museum has merely reproduced Monet’s work so from that perspective it is just a copy and therefore, not original. In addition, Monet’s The Four Trees was created in 1893, and as discussed, any work created prior to 1924 is in the Public Domain. Reproducing artwork that is in the Public Domain cannot extend copyright protection; otherwise, every time a creative work had reached the end of its copyrightable life, the author could just take a picture of it to renew its copyright. The requirement for a limited time would essentially be meaningless.

If the Monet Poster is merely reproducing the Monet, then it cannot claim copyright protection.

. . . .

Well, the copyright isn’t in the Monet painting but in the poster itself.  If the creator of a work incorporates preexisting material from another creator, such as public domain or other copyrighted works, into his or her new work, the new work can receive a copyright if 1) the creator disclaims the preexisting material and 2) the remaining part of the work is copyrightable (i.e. original, in a tangible medium) and has some creativity.

. . . .

The Monet poster is no different. Monet’s The Four Trees is not the sole element on the poster but includes text that is not haphazard but designed, even if the design is a simple one. The position of the text on the page, the font, and size, as well as the choice of color (or lack thereof), are all creative choices and are unique to this poster. So, the Met Museum is claiming copyright protection for the layout of the poster, not the Monet itself, which it would have to disclaim.

. . . .

While taking a photo of a Public Domain work is free to sell from a copyright perspective, there are other legal issues to consider. One of these issues is contract law. When you buy your ticket to enter a museum, even if the museum is free to enter, there are usually Terms of Service that you agree to in exchange for entering the museum. The terms dictate behavior and rules of the museum and can be far-reaching, including expected behavior, age limits, use of certain equipment or even what size bag you are allowed to bring into the museum.

You automatically agree to the Terms of Service when you step onto the museum grounds. An explicit agreement, acknowledgment, or even knowing where to find them is not required. The Terms of Service are unique to each museum and can vary widely, especially between private, public or government-subsidized institutions. Most will include a section related to photography.

The Met Museum’s photography policy states:

“Still photography is permitted for private, noncommercial use only in the Museum’s galleries devoted to the permanent collection. Photographs cannot be published, sold, reproduced, transferred, distributed, or otherwise commercially exploited in any manner whatsoever. Photography is not permitted in special exhibitions or areas designated as “No Photography”; works of art on loan from private collections or other institutions may not be photographed. The use of flash is prohibited at all times and in all galleries. Movie and video cameras are prohibited. Tripods are allowed Wednesday through Friday, and only with a permit issued by the Information Desk in the Great Hall. “

According to these terms, despite the copyright issues discussed earlier, selling photos taken within the museum is prohibited and override any issues of copyright. So even though the work is in the Public Domain and the only place to take a true photo is at the Met Museum, you would still be unable to sell the photo taken there.

. . . .

So how can museums copyright paintings from old masters? As we have seen, they can’t. What they can do, though, is copyright the poster and place the copyright notice in such a way that it misleads people into thinking that they have this right.

Link to the rest at Artrepreneur

PG suggests that a wise museum director would think twice before attempting to enforce a “contract” printed in mouse type on the back of a ticket. (As a point of clarification, prior to the existence of computer mice, “mouse type” referred to tiny, almost unreadable type sizes used for disclaimers of various sorts).

A couple of litigation strategies and some other thoughts come to mind:

  1. One might argue that the form of the contract was inherently deceptive and unenforceable in that it was purposely designed to discourage reading.
    1. One might interview a random sample of museum patrons to ask them what agreements they made with the museum when they entered the museum and whether they had even noticed the existence of a contract on the back of their ticket.
    2. In such case, PG posits that one would be lucky to find one patron out of one thousand who knew anything about the terms of the “binding contract.” Is this a species of consumer fraud perpetrated by the Met?
  2. Since young persons frequently come to art museums, is the museum attempting to bind them to a contract when they are too young to enter into contracts under state law?
    1. As can be attested by large numbers of parents and grandparents, any child can take a photo with an iPhone.
    2. If a child takes a photo of a Monet on a school outing, can the child’s parent who was at work and didn’t go to the museum (and thus, was not bound by the “contract” on the back of the child’s ticket) exploit it commercially?
    3. In fact, if a group arranges a visit to the Met, does each member of the group actually receive a ticket with the “contract” language on the back? If the group is comprised of school children, does each parent sign a document that includes the terms of the Met’s contract, agreeing to be bound by that contract?
  3. PG has not entered the Met Museum for many years, but he doubts mouse type on the back of the Met’s tickets meets legal requirements necessary to accommodate those with vision impairment or other disabling conditions under various federal and state laws.
  4. One might argue that the Met’s photography policy is a poorly-disguised attempt to circumvent the copyright laws of the United States and France (and the various international copyright treaties entered into by each country over the years since Monet made his painting) by effectively extending copyright protections far beyond the terms permitted under the laws of the United States and such treaties.
    1. As the OP describes, the US Constitution permits Congress to enact copyright laws for the purpose of “securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”.
    2. Whatever copyright protections Oscar-Claude Monet, the creator of the work, may have held have long expired, but the Met still deceptively attempts to treat the painting as somehow protected from unauthorized copying and reproduction in a manner equivalent to copyright protection.
    3. The Met helpfully provides the provenance of the painting:
      1. [Knoedler, New York, until 1893; stock no. 7287; their sale, American Art Association, New York, April 14, 1893, no. 362, as “The Four Trees (Poplar Series),” for $1,175 to Durand-Ruel]; [Durand-Ruel, New York, 1893–95; stock no. 1063; sold on January 12, 1895 to Havemeyer]; Mr. and Mrs. H. O. Havemeyer, New York (1895–his d. 1907); Mrs. H. O. (Louisine W.) Havemeyer, New York (1907–d. 1929; cat., 1931, p. 160, ill., as “Landscape—Les Quatre arbres”)
      2. In each of the transfers of the painting, beginning with its sale by Monet, was copyright to the painting explicitly transferred or, in the absence of an explicit copyright transfer, did Monet retain copyright and merely transfer the painting itself? Where’s the proof?

PG has blathered for too long. As an amateur photographer, he has always been annoyed by museums’ attempts to force patrons to purchase an often second-rate photograph of an artwork from the museum instead of permitting PG to take a more pleasing (at least for him) photo of his own for his personal enjoyment.

GTA V Cheat Maker Has to Pay $150,000 in Copyright Damages

From TorrentFreak:

Over the past two years, there’s been a wave of copyright infringement lawsuits against alleged cheaters or cheat makers.

Take-Two Interactive Software, the company behind ‘Grand Theft Auto V’ (GTA V), is one of the major players involved. The company has filed several lawsuits in the US and abroad, targeting alleged cheaters.

Last August the company filed a case against Florida resident Jhonny Perez, accusing him of copyright infringement by creating and distributing a cheating tool. The software, known as “Elusive,” could be used to cheat and grief, interfering with the gameplay of others.

The “Elusive” cheat was previously sold online at prices ranging from $10 to $30, depending on the package. Before filing the lawsuit, Take-Two attempted to find out exactly how much money was made in the process, but Perez failed to hand over detailed financial records.

. . . .

According to the company, it’s clear that the cheat maker is guilty of both direct and contributory copyright infringement. As such, it asked the New York federal court for the maximum statutory damages amount of $150,000, plus $69,686 in attorney’s fees.

Take-Two argued that these damages are warranted because the cheating activity resulted in severe losses. According to an estimate provided by the company, the harm is at least $500,000. In addition, the maximum in damages should also act as a deterrent against other cheat developers.

. . . .

“Mr. Perez’s Elusive program creates new features and elements in Grand Theft Auto which can be used to harm legitimate players, causing Take-Two to lose control over its carefully balanced plan for how its video game is designed to be played,” he writes.

In addition, the Judge notes that the cheat discouraged users from future purchases and gameplay and that the unlimited currency cheat undermined Take-Two’s pricing and sales of legitimate virtual currency.

. . . .

In addition to the monetary damages, the Court also issued a permanent injunction prohibiting the cheat maker from continuing infringing activities moving forward.

Elusive hasn’t been available for sale since last year. It was taken offline after Perez was contacted by Take-Two.

“After discussions with Take-Two Interactive, we are immediately ceasing all maintenance, development, and distribution of our cheat menu services,” a public announcement read at the time.

At the time, the cheat maker informed its users that it would donate the proceeds to a charity which Take-Two could pick. However, the default judgment makes it clear that this money should go directly to the game company instead.

Link to the rest at TorrentFreak

PG says that, unsurprisingly, the author of the OP doesn’t seem to understand the difference between obtaining a court judgment against an individual defendant and actually collecting money from that defendant.

PG will make a few comments about collecting debts under the US federal and state court systems below. Different states have different laws and practices concerning the collection of a civil judgment against an individual or corporation, so, if anyone visiting TPV is trying to collect such a judgment, he/she will have to contact an attorney in the jurisdiction that issued the judgment.

As a general proposition, in the United States, an individual is not going to be sent to jail for failing to pay a civil court judgment such as the one which appears to be involved in the OP. While a great many states used to have debtor’s prisons, imprisonment for an unpaid civil debt is, for all intents and purposes, unconstitutional in the US unless it is clear the individual has the money to pay the debt.

If an individual fails to pay a criminal fine and a court determines that the individual has the means to do so, after being warned to pay the fine or work out a payment plan with the district attorney/state’s attorney/city attorney/etc., such an individual may be subject to imprisonment for contempt of court and would typically be held in jail until he/she paid the fine. After all, it would not be unusual for a violation of a criminal law to carry the threat of being sent to a local jail or imprisoned in a state or federal penitentiary as potential punishment. “Pay the fine or do the time,” is often a short-hand summary for criminal punishment.

Similarly, payment of court-ordered child support is treated as a special case and the failure to pay support when the individual has the means to do so may result in jail confinement for contempt of court. In this type of case, the court will often require that the non-custodial spouse pay a lump sum toward back child support and promise to continue regular child support payments thereafter as a condition of release.

Suffice to say, if an individual is unable to work, he/she is unlikely to continue to receive the fruits of his/her labor for very long, so those who are entitled to receive child support and family law courts will often try other means of pressuring an individual to make payments in lieu of incarceration.

For example, if the individual with the child support obligation is self-employed and works Monday-Friday, a court might order the individual jailed on Saturday and Sunday for contempt, then released on Monday morning to go back to work.

If an individual is employed by a third party, at least a portion of the money the third party owes that individual as salary may be garnished by the court so the employer pays part of the salary to the individual and part of the salary to the court to be turned over to the person who has a judgment against the employee.

Bank accounts, real estate, automobiles, etc., are also subject to seizure and, in the case of real estate and automobiles, for sale at an auction or some other public method of turning things into cash for payment of an individual’s civil debts.

Court records in most cases are public documents, so a judgment issued against an individual will almost certainly be discovered by various credit bureaus and be added to an individual’s credit report to that individual’s detriment. Ditto for judgment issued against a company.

The process of collecting most judgments in the United States will vary from state to state and between different courts operating within the same state. The disappointing bottom line for some people who win a court case in which the loser is ordered to pay the winner some money is that the winner will have to retain counsel for additional assistance in collecting the money. The court will usually not provide much in the way of affirmative assistance to help an individual collect the money the court has just awarded the individual.

PG’s general suggestion, one he has provided to countless clients over the years, is, “Don’t do business with crooks.” The chances of enjoying a profitable and hassle-free business relationship with a crook are not very good.

A corollary in the world of romance is “Don’t marry a crook” and, married or not, “Don’t have children with a crook.”

PG’s practical advice about avoiding crooks applies to the publishing world just like it does everywhere else. While a great many people are honest, at least some crooks infest every line of business. If a publisher fails to faithfully honor its obligations to other authors, including its obligations to calculate royalties fairly and pay them promptly, the chances that publisher will make an exception to its normal dishonest business practices for any particular new author are remote.

PG will repeat his standard disclaimer once again:

Nothing PG posts on TPV should be understood or relied upon as legal advice. You obtain legal advice by retaining a lawyer, not by reading a blog. PG only provides an overview of various legal topics on TPV for the general information of authors and others, not to assist anyone in understanding or resolving a particular legal issue.

PG is a lawyer, but he is not your lawyer unless and until you and he have a conversation about your legal issues and both of you signs a written retainer agreement under which PG is to provide legal services to you.

 

Musicians Attempt Class Actions Against UMG, Sony to Reclaim Rights to Recordings

From The Hollywood Reporter:

For the past decade, a number of prominent musicians including Tom Petty and Bob Dylan have quietly attempted to reclaim rights to songs by serving notices of termination to publishers and record labels. Often, like in the case of Prince, these notices become invitations to renegotiate deals for more favorable royalty arrangements. But according to lawsuits filed Tuesday in New York federal court, in the face of hundreds of termination notices, UMG Recordings and Sony Music have “routinely and systematically refused to honor them.”

The named plaintiffs in the UMG case are John Waite, a solo artist and former lead singer of the 1970s group The Babys, and Joe Ely, who has recorded 18 solo albums and also was a performer on works by The Clash and Rosie Flores. In the Sony case, David Johansen of The New York Dolls, John Lyon (known as Southside Johnny) and Paul Collins of The Beat are hoping to lead the charge.

They are looking towards the Copyright Act of 1976, which extended the term but also gave artists who bargained away rights during the early part of their careers a second bite at the apple by allowing them to terminate copyright grants during the latter portion of the copyright term.

. . . .

The newest lawsuits state that UMG and Sony are regularly taking the position in response to termination notices that recordings are “works made for hire” because of contractual language in recording agreements.

“As a result of UMG’s policy, UMG has refused to acknowledge that any recording artist has the right to take over control of the sound recordings, or enter into an agreement with a different label for the exploitation of recordings, after the effective date of termination,” states the complaint. “In many instances, UMG has continued to exploit the recordings after the effective date, thereby engaging in willful copyright infringement of the United States copyright in those recordings.”

. . . .

Not only are UMG and Sony being sued for infringing the copyrights of many of the songs in their respective catalogs, but the plaintiffs seek declaratory relief that sound recordings can’t ever be considered “works made for hire” under the law, that release of sound recordings in album format doesn’t constitute a “contribution of a collective work” or “compilation” (other exceptions to termination), that foreign choice of law provisions in contracts don’t have any effect on U.S. copyright law with respect to the termination powers, that sound recordings aren’t “commissioned works,” and that recording artists aren’t barred from terminating based on the use of loan-out companies.

Link to the rest at The Hollywood Reporter

Attentive readers will note the term, “loan-out companies” in the OP and wonder what those are.

From Forbes:

Entertainers such as actors and musicians often set up loan out corporations as a way to protect their assets and obtain certain tax benefits. The basic way a loan out corporation works is that the entertainer – an actor, for instance – is an “employee” of the loan out corporation. The corporation then enters into contracts with other businesses such as a production company. Then the loan out corporation “loans out” the services of the actor to the production company.

How does it work? The loan out corporation receives monies from contracts with other businesses and pays a salary to the entertainer for services performed. Meanwhile, the loan out corporation provides essential services to the entertainer, from accounting and legal, to coaching and agency fees. All business expenses incurred are deductible because the entertainer is officially an employee of the loan out company. 

“Wealthy celebrity clients are increasingly approaching advisors about the benefits of loan out corporations. The structures are easy to establish and maintain while offering a wide array of tax mitigating possibilities,” explains Evan Jehle, a partner at LVW/Flynn. “Loan out corporations are also being utilized as vital components of asset protections strategies for high-profile ultra-wealthy families. Wealth and fame make athletes and entertainers particularly attractive targets for financial predators and frivolous lawsuits. Because loan out corporations are separate legal entities, the personal wealth of the entertainers is protected from liability connected to the corporation.”

Link to the rest at Forbes

The Growing Importance of Intellectual Property

From Kristine Kathryn Rusch:

I need to be clear as I start this post. We writers create intellectual property. We license our copyrights. We do not sell stories. In fact, the stories we tell, along with their titles, are often not copyrightable. The form in which we tell that story—the order of the events, the order of the words we use,—those things are copyrightable, but the basic boy meets girl, boy loses girl, girl discovers she’s fine on her own storyline can and does fuel a thousand books and movies. (That’s why so many memes over the holiday season made fun of the romance movies on Hallmark. Because the movies—all copyrighted in their own right, all different in the copyright sense—share a lot in common.)

If you don’t understand copyright and you consider yourself a professional writer, then you do not understand the business you are in. If you have published a novel, traditionally or indie, and you do not understand copyright, you are volunteering to get screwed over and over and over again. I say this often, and I’m saying it loudly again, because the trend for 2019 and beyond is that every organization you do business with will try to take a piece (if not all) of your copyright on each and every one of your projects.

Your job is to protect that copyright.

. . . .

Forbes actually published an article in fall of 2018 titled “What Authors Should Do When Their Publisher Closes.” You can click over there if you want. The advice isn’t good, because as someone in the article says, what an author should do varies based on the author’s contract. And if the author has an agent, then they’re probably screwed. If the author doesn’t understand copyright, then they’re definitely screwed.

. . . .

I recommend publishing indie, because that’s the best way to protect yourself and your writing income. You’ll have a career if you do that. Your career might vanish on you if you try to remain traditional. Or, rather, you will write as a “hobby” while you make your living doing something else.

Yes, I’m being harsh, but that’s because the intellectual property apocalypse that I’ve been warning you about is upon us. The trends are there, and the signs that traditional publishing (and all of the other big entertainment organizations) know about the value of intellectual property are becoming clearer and clearer.

. . . .

For years now, the Big 5 traditional publishers have had contracts that essentially transfer the entire copyright of a novel from the author to them. The contracts don’t say that explicitly, but when you read the contract as a complete document (which is how you should read it), you realize that the sum total of what the clauses mean is that the writer retains no part of the copyright, and is only entitled to a tiny percentage of the money that copyright earns.

The reason these contracts changed about a decade ago had nothing to do with publishing and everything to do with mergers. As these publishing companies became part of big international conglomerates, many of them entertainmentconglomerates, the legal teams redrafted the contracts to do the copyright grabs.

Most writers had no idea what they were signing, and most of their agents didn’t either. Agents are not trained lawyers. A handful of the big agencies have lawyers on staff, but most of those agencies are concerned with making the agency money, not with making the writer money. So a lot of the contracts are structured to pay and protect the agent, while bilking the writer.

. . . .

Up until a year or so ago, most of the Big Five continued to operate like traditional publishing companies have since the 1990s—a focus on publishing a lot of titles, hoping that some will stick and become bestsellers. But that strategy isn’t working, and sales are down precipitously.

. . . .

[Simon & Schuster] has been in a media conglomerate since the 1980s. I’m not going to go through its tortured history, which runs from Paramount to Viacom and beyond, but realize this: It became part of the CBS Corporation officially in 2005. Around then, it became impossible to get book rights reverted, which is one of the tricks that is recommended for writers in the Forbes article I cited above. (How 1995. Sigh.)

S&S has experimented with electronic books since the 1990s. Dean and I personally made a lot of money in the early 2000s when S&S realized they hadn’t licensed e-rights for Star Trek books. (Dean and I wrote a bunch of them in the 1990s). S&S has tried to have a self-publishing arm since 2012, and they’re doing a lot of things that require writers to pay for services that publishers used to provide.

. . . .

The more IP a company acquires, the more its value goes up. Even if they don’t create anything from that IP. Acquiring a novel’s copyright—with all its potential spinoffs, TV shows, toys, comics—increases a company’s value tremendously.

Read that paragraph again, because the information therein is the key to this whole piece.

The more IP a company acquires, the more its value goes up. Your novel is IP. If they acquire it, their bottom line goes up, even if they never do anything with that IP. Got that?

That’s why S&S stopped, in 2000 or so, reverting the rights to the novels they acquired. Those novels equal more earnings potential—and they allow the company to maintain a value that it wouldn’t have otherwise.

I’ve been warning writers about this copyright grab by corporations for some time, but it was easy to ignore me because the Big 5 have not been (for the most part) exploiting (the legal term for developing or making use of) that copyright.

S&S finally is. That’s what Simon & Schuster’s CEO Carolyn Reidy’s heady year-end report was really all about. She called 2018 “the most successful year in Simon & Schuster’s history,” and yet she didn’t cite a single print bestseller as something that caused the success.

Instead, she touted the rise in audio . . . as well as a mention that sent a little shiver through me.

She wrote:

…[backlist sales now] comprise a higher portion of our revenue than at any time in memory…while readers wanting the tried and true is an industry-wide phenomenon, our concerted effort during the last few years to acquire books with the potential for long-term backlist sales has yielded dividends.

This article does not specify what exactly she means by “backlist sales.” Does she mean actual ebook and print sales, or other licensing, such as foreign rights and so on? Clearly S&S is exploiting the audio rights clauses in their contracts.

What is clear, however, is that a big traditional publisher has finally figured out that not only does their backlist have value in raising the company’s worth, but it also has earnings potential that can be exploited in 2019.

Why does this send a chill through me? Because if one traditional publisher learns it, the others will learn it as well. And the ability of writers who have sold their work into traditional publishers to get the rights reverted will go down to almost nil.

Big traditional publishers will finally join their counterparts in the entertainment industry—the movie/TV companies, the music studios, the game companies—in demanding control of every aspect of the copyright from the original author.

Which means that if an author signs one of those agreements, the author will get pennies on the dollar (if that) for any rights—audio, movie, TV—rather than the kind of earnings writers could have gotten as recently as 10 years ago.

. . . .

And those of you who licensed mass market rights a few years ago, thinking you’d get your ebooks into stores, you probably already signed away most of the copyright, particularly if you went with Harlequin or Simon & Schuster.

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.

As usual, Kris incorporates a lot of intelligent business thought and advice into the OP (and her other posts in this series).

As PG has mentioned before, he has negotiated, drafted and/or reviewed a great many contracts during his legal career, including some large technology copyright and patent licensing agreements. As he has also mentioned before, the typical contracts between authors and traditional publishers are some of the most unfair and one-sided agreements he has seen.

In a prior era during which it was impossible for an author’s works to reach any sort of meaningful audience without a publisher to cover the costs of printing books and provide meaningful access to buyers for large numbers of physical bookstores, perhaps the value of a publisher’s services was an extremely large portion of the income generated by sales of a book.

However, in an age in which:

  • Amazon is the largest English language bookseller in the world; and
  • Opens its electronic doors to self published authors on terms substantially equivalent to those it provides commercial publishers; and
  • Ebooks have the highest profit margin of any edition of a book a publisher sells; and
  • Ebook editing, formatting and cover design of a quality comparable to that provided by a commercial publisher can be had for a few hundred to a few thousand dollars;

the real value of a publisher for a typical author compared to the effective cost of a publisher to that author has declined precipitously.

PG was about to discuss the value of branding for either an ebook or a printed book, but he will be uncharacteristically brief.

Does anyone go to an online or offline bookstore seeking out a Random House book? Of course not. They’re looking for an author, a genre, etc.

With respect to promoting and selling books, which brand name is most valuable, James Patterson’s or Little, Brown and Company’s?

Without singling out any particular literary agent or agency, PG will say, as a general observation, that agents famous and obscure don’t do anything significant to improve the contract terms for publishing contracts other than increasing the amount of the advance on some occasions. In particular, agents rarely if ever do anything to address the issues Kris discusses in the OP.

In some types of contracts — consumer loans, for example — federal and/or state legislatures have passed laws that prevent commercial lenders from including some contract provisions that are unfair or harmful to borrowers. Compared to the number of individuals who take out loans to purchase a house, automobile or dishwasher, however, authors are a tiny constituency and elected officials have much bigger fish to fry than commercial publishers.

However, perhaps as a result of such consumer protections, some authors may believe they are somehow protected from  unfair provisions in publishing contracts between themselves and large publishers. That belief is incorrect.

Some of the most unfair provisions in a typical publishing contract are presented in the most innocuous manner imaginable.

 

 

Finally, there is nurturing. Publishers don’t just produce books. They nurture. Literary agents also provide nurturing in case publishers fall short in any way.

Like a baby duckling, a baby author needs to be nurtured and petted and encouraged and gently guided if she/he is to grow into a beautiful swan.

Who better to nurture such a delicate creature than a Kommanditgesellschaft auf Aktien headquartered in Gütersloh?

Off the top of his head, other than publishing, PG can’t ever remember ever having a business discussion that included the word nurture or any of its variants.

PG is reminded of a quote attributed to former president Harry S. Truman, “If you want a friend in Washington, buy a dog.”

PG suggests that if you want someone to watch over you, steer clear of the publishing business.

.



Copyright Strategies for Start-Up Companies

From Trademark and Copyright Law:

As a leader of a start-up company, you are probably aware of the importance of protecting your company’s innovative products, services and technologies through patent filings.

. . . .

Most start-up companies overlook copyright issues, however, and this can create problems down the road.  In this article, we identify the most common traps that we see start-up companies fall into, and provide recommendations for how to avoid them.

Trap for the Unwary #1: Paying Someone to Create Content Does Not Mean That You Own It

One of the most common mistakes companies make in the early stages is to fail to shore up — in writing — ownership rights to content created for the company.  Many companies think that, by hiring someone to write content such as website text, software programs, or training manuals, the company automatically owns that content.  Not true!

The term “work for hire” is one of the most misunderstood terms in copyright law, and it seldom covers anyone but a true employee (i.e., someone who gets a W2 tax form from the employer, as opposed to an independent contractor).

As a general matter, an individual who creates content, by putting an original work of authorship into a tangible medium of expression, owns the copyright in that content at the moment of its creation unless (1) the individual is an employee who creates the work in the scope of his or her employment; or (2) the individual previously signed a written contract acknowledging that the work is a “work for hire” and the work is one of a few categories narrowly defined in the Copyright Act under the definition of “work for hire” (i.e., “a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas”).

Thus, very few non-employees will fall into the “work for hire” category.  It is therefore crucially important that such individuals execute written assignments so that the copyrights are transferred to the company.  To the extent that a non-employee content creator is working for the company pursuant to a written contract, that contract can impose upon the independent contractor the obligation to execute copyright assignments, and even give the company the power of attorney to execute such assignments on his or her behalf.

As copyrights can only be transferred in writing, it is important for start-up companies to obtain the necessary written assignments before its independent contractors move on or disappear.

. . . .

Copyright Registration and Notice Strategy

If your start-up company is in the business of content creation, in addition to following the guidelines above, it is important to implement a copyright registration strategy at the outset.  Copyright registrations are relatively inexpensive to obtain, and allow the company to seek statutory damages and attorneys’ fees for any infringement commencing after the registration date.

Copyright registrations are also useful because they put your competitors on notice of your intellectual property rights.  This can be valuable if you are seeking copyright protection for documents or materials that your competitors might not otherwise consider proprietary, such as customized forms or user interfaces.

You do not need to obtain a copyright registration to include a copyright notice on your materials, and it is a good idea to use such a notice wherever possible.  The proper form of the notice is the symbol © or the word “Copyright,” the year of first publication of the work, and the name of the copyright owner or an abbreviation by which the name can be recognized.

For example: © 2015 Foley Hoag LLP

You should also consider adding whatever other proprietary language may be appropriate, particularly if the distribution of the materials is restricted.

For example:  For use by customers of [company name] only.  Further copying or distribution is strictly prohibited.  For permissions, contact [legal@companyname.com].

Link to the rest at Trademark and Copyright Law

Inside a ‘Making a Murderer’ Lawsuit and the Hidden Dangers of TV’s True-Crime Craze

From The Hollywood Reporter:

Andrew Colborn was leading a quiet life as a police officer in the Manitowoc County, Wisconsin, Sheriff’s Department when his face first flashed across millions of screens around the world. It was December 2015 and the docuseries Making a Murderer had just premiered on Netflix, becoming one of its first genuine unscripted hits.

Making a Murderer helped establish Netflix as a destination for bingeable non-fiction programming, earned its makers Moira Demos and Laura Ricciardi four Emmys and turned tens of millions of viewers into avid armchair detectives. The docuseries also turned Colborn’s life upside down, along with those of his wife, Barb, a retired pediatric nurse, and their five grown children, ages 26 to 35.

“Barb and I … have always strived to lead a quiet and private life,” Colborn says. “[Making a Murderer] destroyed that for both of us and for our family. … I live in a state of constant vigilance very similar to combat or constantly being on duty as a law enforcement officer.”

Colborn, 59, has not given an interview since the premiere of Making a Murderer, which examines whether Steven Avery and his nephew Brendan Dassey were framed for the 2005 murder of 25-year-old photographer Teresa Halbach. A second season of the show arrived in October, tracking new attorneys’ efforts to secure the release of Avery and Dassey, who remain in prison, and reinvigorating discussions about the case in the press, on social media and on Reddit message boards with subjects like “Colborn Lies! Proof!” In December, Colborn filed a defamation suit against Netflix and the filmmakers, alleging that they omitted and distorted material in an effort to portray him as a corrupt officer who planted evidence to frame an innocent man.

. . . .

Colborn’s is one of several recent lawsuits sparked by such shows — earlier in January, JonBenet Ramsey’s family settled a defamation suit with CBS over 2016’s The Case of: JonBenet Ramsey. The four-hour doc suggested that Ramsey’s brother, Burke, who was 9 when his sister died, fatally hit JonBenet with a flashlight and that her parents covered up the 1996 murder (neither party would discuss the terms of settlement). There have been multiple lawsuits associated with NBCUniversal-owned Oxygen’s battery of true-crime shows, including a case that an Alabama judge allowed to proceed this month over the 2017 miniseries The Disappearance of Natalee Holloway. Holloway vanished in 2005 while on a high school graduation trip to Aruba, and the six-part series includes the discovery of what supposedly were her remains. Holloway’s mother, Beth, sued Oxygen and the show’s producers for intentional infliction of emotional distress — she provided a DNA sample to an investigator for the testing of the bones, unaware that the sample would be part of a television series that followed her ex-husband’s quest to solve Natalee’s disappearance. Beth alleges that the producers knew all along the bones were from animal remains — a pig’s head.

. . . .

“The folks doing these true-crime series need to adhere to the first word: true,” says L. Lin Wood, the Atlanta attorney whose firm represented both the Ramseys and Beth Holloway. “If they want to suggest conclusions or make accusations, then they better damn well be sure they’ve got facts, not exaggerations.”

Colborn, who retired from the Manitowoc County Sheriff’s Department as a lieutenant in February 2018, answered THR‘s questions about what his life is like now by email. He says Avery sympathizers have confronted him in public, threatened to kidnap and sodomize him and gang rape his wife, and have posted pictures of his children online. Colborn has frozen his credit, after he and two other members of his family suffered identity theft. He has built a safe room in his home where family members can hide, and he and his wife no longer travel or dine out. They have collected 28 CDs worth of recorded telephone threats.

. . . .

Colborn’s lawsuit alleges that the Making a Murderer filmmakers destroyed his reputation and livelihood by heavily editing his testimony in Avery’s trial in order to convince viewers that he planted Halbach’s Toyota RAV4 at Avery’s family’s salvage yard and placed its key in Avery’s bedroom. The suit claims the filmmakers removed Colborn’s answer to one question at trial and inserted his answer to another, giving the opposite impression; that they strategically spliced reaction shots of him appearing nervous and apprehensive; and that they omitted key photographs, including one showing a crack in a bookcase that explained why Colborn did not find the car key on his first search of Avery’s home. The suit seeks damages for “loss of wages and other expenses incurred to protect his family’s safety,” though Wisconsin law prohibits plaintiffs from requesting a specific monetary amount.

The sense of unraveling a dense mystery is what makes true-crime shows like Making a Murderer so addictive for viewers. But the very storytelling techniques that accomplish those aims — identifying new motives and new offenders — can lead to lawsuits. “The film industry is callously using people as pawns to make a point and to garner public interest to sell their product,” says Michael Griesbach, Colborn’s attorney and a former prosecutor who wrote the book Indefensible: The Missing Truth About Steven Avery, Teresa Halbach, and Making a Murderer. “A cottage industry of conspiracy theorists has been spawned that has turned lives upside down. My client is the main target, but there are others, including several members of the public now widely considered murder suspects or accomplices in the framing of an innocent man. Who’s falsely accusing who now?”

. . . .

But the insinuations made in true-crime shows have consequences far more grave than making subjects look dumb, and the genre’s boom has inevitably led to more litigation, say experts. “You’re not doing shows about kittens, you’re doing shows about crimes,” says attorney Lincoln Bandlow, who clears A&E’s investigative series Leah Remini: Scientology and the Aftermath. “So you’re going to see an uptick in defamation claims. We’re fortunate that in this country we have a strong level of protection to make these kinds of shows.” In the case of a police officer like Colborn, whom courts typically view as a public figure, the bar is high, Bandlow says. “Our law says certain public people have to put up with not nice things being said about them,” he says. “It’s going to take a pretty egregious case [for a police officer to win a defamation suit].” Even when a plaintiff does have a strong argument, these types of cases rarely make it to trial, as media companies are inclined to settle before entering the intrusive discovery phase.

Link to the rest at The Hollywood Reporter

Publishing’s Fact-Checking Problem

From Vox:

Book publishing has a fact-checking problem, and that problem might have just caught up with former New York Times executive editor Jill Abramson.

Abramson’s highly anticipated new book, Merchants of Truth: The Business of News and the Fight for Facts, is scheduled to publish at the beginning of February, but advance copies have begun to circulate through the media. And more than one of the people featured in the book have disputed the facts and truth of Abramson’s writing about facts and truth.

In a lengthy Twitter thread, journalist Arielle Duhaime-Ross cites a paragraph of Merchants of Truth pertaining to her work at Vice and says it contains six errors, including about her gender identity and her journalism background.

“I met Jill Abramson in June ’17 in the VICE office,” Duhaime-Ross wrote. “We chatted for less than 40 minutes. She took handwritten notes. I have not heard from her since, by which I mean she did not contact me for a fact-check.”

. . . .

Duhaime-Ross’s critique was echoed by many of her current and former colleagues at Vice, who focused on a portion of Abramson’s book that characterizes the site as a salacious and irresponsible news outlet more focused on curating a certain image than on reporting the truth.

Danny Gold, a video journalist who is now at PBS Newshour and who previously worked at Vice, writes that Abramson misrepresented his decision not to wear protective clothing while covering an Ebola clinic in Africa. Abramson portrays Gold’s decision as dangerously reckless — in contrast to safer decisions made by reporters for the New York Times while covering the same story, who she says wore protective clothing the whole time — but Gold says that’s inaccurate.

“Like every other reporter there, i was told by experts not to walk around with a PPE [personal protective equipment] unless you were in the ICU. I also worked alongside Times reporters, who a. Gave me that advice and b. Did the same,” he tweeted. Gold added that he explained as much both to Abramson and on camera, in the published version of the Vice documentary The Fight Against Ebola.

Also on Twitter, Jay Caspian Kang (formerly of Vice, now at the New York Times Magazine) noted that Abramson says Charlottesville is in North Carolina (it is in Virginia; North Carolina is the home of the city of Charlotte), and Vice’s Elle Reeve notes that a figure Abramson describes as a “southern white nationalist” is in fact from Long Island.

. . . .

The portions of Abramson’s finished book that have circulated online suggest that some but not all of the errors people identified in the galley have been corrected in the finished book. Either way, it is unusual for major factual errors to linger this far into the book production process, only to be corrected later. By the time galleys are released, it’s more typical for a publisher to be correcting proofreading errors on the level of spelling and grammar than is it to be correcting the facts. It’s certainly possible that Abramson did a good-faith fact check of her book very late into production, but that would be unusual.

Moreover, it’s worth noting that all the people disputing Abramson’s claims say they were never contacted by a fact-checker. So if the book was fact-checked, that process didn’t include a conversation with Abramson’s subjects.

. . . .

I wrote about book publishing’s fact-checking problem for Vox in 2018. As I wrote then:

In general, fact-checking is not a standard part of the workflow in book publishing, even in nonfiction book publishing. What usually happens is this: Authors submit their manuscripts, the manuscripts go to editors who help to refine them and shape them, and from there the book goes into production and copy editing.

The copy editor will look for grammatical errors, and sometimes the publisher’s lawyer will check the book to make sure there’s nothing libelous in there, but fact-checking is not part of the standard publisher’s process. […]

So how do publishers generally handle it if factual errors creep into a book? Basically, the same way they handle plagiarism: They make it the author’s problem.

One of the standard parts of any book contract is the warranty and indemnity clause. By signing on to that clause, an author is guaranteeing that their book is their own, original project, not plagiarism, that it doesn’t infringe on anyone else’s rights, and — if the book is nonfiction — that its facts are accurate. And if it turns out that any of these claims are untrue, the liability is all on the author. They’re the ones who pay up if someone decides to sue.

So the facts are all up to the author. And different authors handle that liability differently. Some might want to hire a freelance fact-checker, but that can get expensive: Vulture cites flat prices of between $5,000 and $25,000, and the Editorial Freelancers Association quotes a rate of about $30 to $40 per hour. The money for fact-checker fees would have to come from the author. And since most nonfiction book authors aren’t exactly rolling in spare cash, it’s a tempting corner to cut. Many authors decide to just fact-check themselves or to skip that step entirely.

Either way, we’re left with an industry in which a lot of nonfiction books don’t get looked over by a professional fact-checker.

So Abramson was going from the New York Times, an institution with a team of dedicated fact-checkers, to a medium that left the fact-checking entirely up to her. And judging from the disputes we’ve seen so far, she may have been ill-equipped to handle that transition.

Link to the rest at Vox

PG suggests if the former executive editor of The New York Times doesn’t receive quality service from her publisher, nobody does.

He was reminded of an embarrassing collection of errors in the Times itself in a high-profile article following the death of well-known television journalist, Walter Cronkite, in 2009:

The Times published an especially embarrassing correction on July 22, fixing seven errors in a single article — an appraisal of Walter Cronkite, the CBS anchorman famed for his meticulous reporting. The newspaper had wrong dates for historic events; gave incorrect information about Cronkite’s work, his colleagues and his program’s ratings; misstated the name of a news agency, and misspelled the name of a satellite.

“Wow,” said Arthur Cooper, a reader from Manhattan. “How did this happen?”

The short answer is that a television critic with a history of errors wrote hastily and failed to double-check her work, and editors who should have been vigilant were not.

But a more nuanced answer is that even a newspaper like The Times, with layers of editing to ensure accuracy, can go off the rails when communication is poor, individuals do not bear down hard enough, and they make assumptions about what others have done. Five editors read the article at different times, but none subjected it to rigorous fact-checking, even after catching two other errors in it. And three editors combined to cause one of the errors themselves.

Seemingly little mistakes, when they come in such big clusters, undermine the authority of a newspaper, and senior editors say they are determined to find fixes.

. . . .

What Sam Sifton, the culture editor, ruefully called “a disaster, the equivalent of a car crash,” started nearly a month before Cronkite died, when news began circulating that he was gravely ill. On June 19, Alessandra Stanley, a prolific writer much admired by editors for the intellectual heft of her coverage of television, wrote a sum-up of the Cronkite career, to be published after his death.

Stanley said she was writing another article on deadline at the same time and hurriedly produced the appraisal, sending it to her editor with the intention of fact-checking it later. She never did.

“This is my fault,” she said. “There are no excuses.”

In her haste, she said, she looked up the dates for two big stories that Cronkite covered — the assassination of Martin Luther King and the moment Neil Armstrong set foot on the moon — and copied them incorrectly. She wrote that Cronkite stormed the beaches on D-Day when he actually covered the invasion from a B-17 bomber. She never meant that literally, she said. “I didn’t reread it carefully enough to see people would think he was on the sands of Omaha Beach.”

. . . .

Lorne Manly, Stanley’s editor, read the article but did not catch the mistakes; worse, he made a change that led to another error. Where Stanley had said correctly that Cronkite once worked for United Press, Manly changed it to United Press International, with a note to copy editors to check the name. In the end, it came out United Press and United Press International in the same sentence.

Though the correct date of the moon landing was fresh in his mind, Manly said, he read right over that mistake. Catching it might have flagged the need for more careful vetting. For all her skills as a critic, Stanley was the cause of so many corrections in 2005 that she was assigned a single copy editor responsible for checking her facts. Her error rate dropped precipitously and stayed down after the editor was promoted and the arrangement was discontinued. Until the Cronkite errors, she was not even in the top 20 among reporters and editors most responsible for corrections this year. Now, she has jumped to No. 4 and will again get special editing attention.

. . . .

Janet Higbie, a copy editor, said she started reading the article that Friday and caught the misspelling of the Telstar satellite and the two incorrect dates, but fixes she thought she made didn’t make it into the paper. “I don’t know what happened,” she said. Higbie said she had to drop the story and jump to deadline work, and she assumed that someone else would pick up the editing later. No one did — for four weeks, until Cronkite died late on another busy Friday. “It fell through the cracks,” Higbie said.

. . . .

Two days before his father died, Chip Cronkite sent me an e-mail message labeled, “pre-emptive correction.” He said that CBS, in reviewing its obituary material, had found inaccuracies. “As a life-long admirer of your newspaper,” he said, “may I suggest that you have someone double-check ahead of time?”

Douglas Martin, who had written an advance obit of Cronkite several years earlier, phoned Chip Cronkite. They went over spellings, discussed the cause of death and the like. No one thought to forward Chip Cronkite’s message to the culture department, where Stanley’s appraisal sat.

Link to the rest at The New York Times

Vox is correct in observing that publishing contracts between large (and small) traditional publishers and authors place the responsibility for ensuring the accuracy of all statements of fact contained in the book on the author. If the book includes an error that leads to litigation, again, it’s all on the author, including the publisher’s legal fees.

An attitude common among traditional publishing insiders and their camp followers is that traditionally-published books are simply better than books written and published by indie authors. The publisher’s name on the book is an assurance of quality, hence the higher price of the book, its placement in physical bookstores, etc.

One cannot spend much time speaking and corresponding with traditionally-published authors without hearing tales of slapdashery and ineptitude on the part of their publishers.

For example, one would think that traditional publishers would manifest their most meticulous standards in the contracts between publishers and authors in which the author grants rights to publish a book to a publisher. Such a contract is, of course, the basis upon which the publisher prints and publishes the book, collects money the book generates and passes some of that money on to the author, keeping the large majority for itself.

One would be wrong in such assumptions.

Of course another possibility might be that “most meticulous” is a relative standard for publishers. There is always the question, “Compared to what?”

In the words of one long-ago client of PG’s, “Even his best is none too good.”

As DIY Litigants Crowd The Docket, Courts Step In To Help

Not necessarily about authors and books, but an illustration of a problem that has been around as long as PG has been a lawyer.

From Law360:

Tarikul Khan turned around and whispered, “I’m scared now.”

Waiting in a wood-paneled Brooklyn courtroom for the first hearing in his lawsuit, Khan was watching U.S. Magistrate Judge Lois Bloom grill a plaintiff also representing himself, in an unrelated matter, about his failure to hand over evidence.

When he eventually stepped before Judge Bloom, though, the judge’s first remark was about how Khan’s complaint for disability benefits was unexpectedly shipshape.

Khan, 68, wouldn’t have been able to create that document without behind-the-scenes help from a key consultant.

“Ms. Cat made this. She did help, everything,” Khan told Law360 in the court cafeteria before the Nov. 8 hearing. “I can’t make this thing myself. I finished high school only, no college — a little bit of college. I have nothing like this.”

“Ms. Cat” is Cat Itaya, the director of the Eastern District of New York’s legal assistance clinic for “pro se,” or self-represented, litigants; it lives inside the courthouse and is run by the City Bar Justice Center. Khan visited Itaya beginning four months before his first hearing, and over six or eight visits — a couple with volunteer lawyers, but most with Itaya — she digested his story and put together a complaint in language the court could parse.

While they remain rare for now, clinics like the one in the Eastern District of New York appear to be catching on in federal court as a way to aid self-represented litigants, for whom putting together a legally coherent complaint can be an insurmountable barrier.

Link to the rest at Law360

PG says there is plenty of blame to go around.

– Laws are made by legislatures. Federal laws are made by the Congress of the United States. State laws are made by the legislatures of each state.

Most legislators are not attorneys. Theoretically, legislatures have access to attorneys who may help in drafting the language of the laws the legislatures pass. In practice, political or business advocacy groups may draft language that friendly legislators then submit for passage.

The legislative process involves a lot of negotiations and the results of those negotiations can be various provisions of the statutes that aren’t consistent with each other or that carve out exceptions to the general application of the statutes. Amendments to the statutes to solve perceived problems may generate additional problems.

It is very unusual for a legislature to simply eliminate laws that prior legislatures have passed without providing replacements. The net result of this behavior is a collection of laws that grows larger and larger over time. The first Congress of the United States met from March 4, 1789, to March 4, 1791 and subsequent congresses have been passing laws ever since.

– Many laws authorize federal or state agencies to write regulations to implement the laws. These regulations typically have the effect of laws. Once passed, regulations may be amended by the agencies without going back to Congress for approval.

Every working day, The Federal Register, publishes agency rules, proposed rules and public notices regarding agency rules and practices. During the past several years, The Federal Register has released 70,000-90,000 pages of new federal regulations each year.

To remain current on every regulation released by The Federal Register, an individual attorney would have to read 200-250 pages of new federal regulations per day every day of the year with no time off for weekends, vacations, holidays, etc.

– A popular idea for providing legal assistance for indigent individuals is to require attorneys to provide free pro bono (from the Latin pro bono publico,”for the public good”) services for such individuals.

For reasons that may already be obvious, no attorney is competent to handle every type of legal matter that may arise under state or federal law. The finest patent attorney in the United States would almost certainly have no idea how to handle Mr. Kahn’s disability claim described in the OP.

Speaking from past professional experience, PG can say that indigent individuals have different legal problems and requirements than school teachers, doctors, and bankers. The types of legal issues that indigent individuals face are within the realm of expertise of a very small number of attorneys. The reasons for this will be obvious – If you wish to earn your living as a lawyer, representing bankers is a better professional decision than representing indigents is.

– Can’t U.S. Magistrate Judge Lois Bloom help out Mr. Kahn with his problems as described in the OP?

A magistrate judge or “magistrate” is what amounts to an assistant judge operating under the direction of one or more US District Federal Judges. (A US district judge is one who conducts trials in cases that fall under federal laws. State trial judges do the same things for cases arising under state laws. In the US, there are many more trials conducted by state judges than federal judges.)

Under US law, judges are supposed to be neutral arbiters of the disputes that come before them, favoring neither side.

The OP doesn’t go into detail, but PG suspects Mr. Kahn’s claim for disability insurance was being pursued because the US Social Security Administration had denied Mr. Kahn’s claim for disability benefits for one reason or another. The SSA is the adverse party and Magistrate Judge Bloom is supposed to decide the dispute between Mr. Kahn and the SSA on the basis of the law and facts as she finds them without unduly favoring either side. If she coaches Mr. Kahn, she compromises her obligation to be a neutral arbiter.

Additionally, most Magistrate Judges are enormously busy handling a flood of various cases, including criminal cases in which the constitutional rights of the accused require speedy trials.

– Legal Aid or other legal assistance organizations as described in the OP can be a very good solution to the challenges PG has described. Essentially, such organizations include groups of lawyers who specialize in representing poor people in the types of legal matters in which poor people are commonly involved.

Unfortunately, funding for such organizations is always a problem. Most are funded by state legislatures. In some cases, the state bar association kicks in some money. In large and wealthy cities like New York City, city government and/or the city bar association may also help provide funding.

Whatever the sources of funding, there are always more indigent people with problems than there are salaried lawyers at a legal assistance organization to provide competent legal assistance.

A significant number of private attorneys provide voluntary legal assistance to indigents, either directly or through legal assistance organizations as described above.

Attorneys who specialize in the more remunerative areas of the law are often not of much use in assisting indigents because of their lack of knowledge about the law outside of their specialties. Attorneys in general practice, who, as a group, earn less than legal specialists, are of the most use to legal assistance organizations because of the general practitioner’s broader and more general scope of legal knowledge.

In a former life, PG was an attorney in general practice in a small town located in an area not known for its wealthy residents and represented a lot of poor people, either through the local legal assistance organization or on his own. He was also a member of the board of directors for that organization for several years.

Although he won’t go into detail, PG will say that some of the most personally-satisfying cases he handled in his former practice were for some of the indigent clients referred to him by that legal assistance organization. The term, “deserving poor,” has most definitely fallen out of favor, but some of PG’s former clients were excellent exemplars of that term.

As he said at the outset, this post is not necessarily about books and authors, but more for the general education of US visitors to TPV. PG knows little about similar problems and solutions in other countries other than to know they exist to a greater or lesser extent.

TPV receives visits from more than a few attorneys and they, along with everyone else, are invited to comment.

 

Amicus Brief of Scholars of Corpus Linguistics

While more than a little of what attorneys do when they write legal documents is dull craftsmanship, every once in a while, they’ll do something enormously interesting (at least for PG).

The following OP refers to an Amicus Brief filed in the United States Supreme Court. Amicus is short for amicus curiae, Latin for “Friend of the Court.”  Amicus briefs are legal documents filed in appellate court cases by non-litigants (thus, “friends” of the court, not those involved in the court fight) with a strong interest and special expertise in the subject matter which is part of the litigation. The briefs advise the court of relevant additional information or arguments that the court might wish to consider.

This particular amicus brief relates to a large software copyright infringement case, Rimini Street, Inc. v. Oracle USA Inc. Oracle sued Rimini for copyright infringement and ultimately received a damages award of $124 million.

Under a provision of the Copyright Act, a prevailing litigant is entitled to “full costs” in addition to actual damages incurred as a result of the copyright infringement.

Litigation “Costs” in US federal courts definitely include what are called, “taxable costs” – Statutory fees for the court clerk and marshall, attendance fees for witnesses under subpoena as set by statute ($40.00 per day and $.57½ per mile, round trip from the witness’ residence to where they must appear), etc.

However, actual costs in major litigation are much greater than the taxable costs described in various statutes.

Expert witnesses can charge the litigants tens or hundreds of thousands of dollars (depending on how rare their particular brand of expertise is) to help the litigants craft the technical elements of legal documents, answer interrogatories (written questions from the opposing parties that must be answered in writing and accurately) participate in depositions, testify at trial, etc.

Some prior court decisions have held that “full costs” only refer to taxable costs while others have held that taxable costs are only one part of “full costs” and the statutory language means the prevailing party is entitled to recover other necessary costs arising from the litigation.

The question that the parties want the US Supreme Court to decide is whether the “full costs” provision in the Copyright Act means “taxable costs” or the actual litigation costs of Oracle, the prevailing party at trial.

With that somewhat dull background, the Amicus Brief referenced in the OP is filed on behalf of eleven “scholars of a methodology for answering questions of interpretation in a systematic, rigorous manner—a methodology known as “corpus linguistics.”

[C]orpus linguistics is an empirical approach to the study of language that involves large, electronic databases,” which are used to “draw inferences about language from data gleaned from real-world language in its natural habitat―in books, magazines, newspapers, and even transcripts of spoken language. Because judges―like linguists and lexicographers―are interested in the “original public meaning” of historic texts and the “ordinary meaning” of modern texts, amici believe these databases can be invaluable in resolving difficult questions of constitutional and statutory interpretation.

So, how do the corpus linguistics scholars summarize their findings about the meaning of “full costs?”

The meaning of adjectives is determined by the nouns they modify, not the other way around. That is why we judge a “tall seven year old” by a different standard of tallness than a “tall NBA player” and why the word “long” means one thing when modifying “story” and something else entirely when modifying “table.” Furthermore, the linguistic evidence shows that “full” in Section 505 should be considered a “delexicalized” adjective — meaning its purpose is to draw attention to and underline an attribute that is already fundamental to and embedded in the nature of the noun. “Full” often serves to emphasize the completeness of an object that is already presumed to be complete, like “full deck of cards,” “full set of teeth,” and “full costs. As applied here, then, “full costs” merely means all the costs that are otherwise authorized by the relevant law—not all costs that might be imagined. “

Now that he has come to the end of his pontifications, PG is having second thoughts about how universal his reaction to this matter as “enormously interesting” might be.

Nonetheless, here’s the Amicus Brief.

[documentcloud url=”http://www.documentcloud.org/documents/5663497-Amicus-Brief-of-Scholars-of-Corpus-Linguistics.html” responsive=true sidebar=false]

Donadio & Olson Files for Bankruptcy

From Publishers Weekly:

The Donadio & Olson literary agency filed for Chapter 7 bankruptcy December 3 following years of embezzlement by its former bookkeeper, Darin Webb, who was sentenced December 17 to two years in jail for his crimes.

The agency filed for Chapter 7 in the U.S. Bankruptcy Court for the Southern District of New York, listing assets of $47,241.90 and liabilities of $186,613.90. The agency’s authors are owed a total of $2.7 million in royalty payments. The firm has already begun liquidation proceedings.

The two principals in the firm, Edward Hibbert and Neil Olson, explained how the embezzlement led to the downfall of D&O in separate letters to the judge made public at the time of Webb’s sentencing. Olson provided the more complete explanation of what took place, saying that Webb had been the agency’s bookkeeper for about 20 years and, during that time, had taken over most of the agency’s back office functions. What looked like dedication to the job, Olson wrote, was really part of Webb’s scheme to steal $3.4 million.

According to Olson, Webb, over time, stole an “ever larger portion of our and our client’s money. His means of doing this were complex—hidden bank accounts, fraudulent reports, gently squeezing out a part-time assistant who asked too many questions.”

When Webb confessed to the theft, it became clear, Olson wrote, that he did not “have the means to repair what he has ruined, and we do not have the means to continue.” As a result, Olson wrote, the agency “will cease to exist within weeks.” (The letter was dated October 21, 2018.)

Link to the rest at Publishers Weekly and thanks to Kris for the tip.

PG wonders how much money the principals of the agency, including Edward Hibbert and Neil Olson, have received from the agency during the last year or so.

He asks because US bankruptcy laws include what are sometimes called “clawback” rights of creditors for any Preferential Transfers by the bankrupt entity or person.

Here’s one description of preferential transfers:

A preferential transfer occurs when a debtor, prior to filing for Chapter 7 bankruptcy, pays off a particular creditor or group of creditors and by doing so, causes other creditors to get less in the bankruptcy. For example, a debtor may wish to repay a debt to a friend or family member, to make sure that person gets paid in full (and shield the money used to repay the debt, which would instead be divided among all of the debtor’s creditors).

. . . .

Only transfers made within a certain amount of time before you file for bankruptcy count as preferences. The rules depend on your relationship to the creditor:

  • During the year before you file for bankruptcy, any payment of more than $600 to an “insider” creditor — typically, a friend, family member, or business associate — counts as a preference, subject to the clawback.
  • During the 90-day days before you file, any aggregate payment of more than $600 to a regular creditor (someone other than an insider).

The problem with preferential transfers (also called preferences) is that it benefits one creditor at the expense of the rest. Rather than having their debts tossed into the bankruptcy hopper and receiving pennies on the dollar from the bankruptcy trustee (if that), creditors who receive preference payments are paid in full (which leaves that much less money to be distributed to other creditors).

If the agency is a corporation (the Donadio & Olson website identifies the entity as “Donadio & Olson, Inc.”) and the corporation has filed the Chapter 7 petition, it is possible that payments to corporate officers, directors, shareholders or other insiders during the year prior to the bankruptcy filing date or during the 90 days prior to the filing date could be subject to clawback proceedings as described above.

It has been a very long time since PG has worked on any bankruptcy matters, so he’s not current on bankruptcy law, but authors who haven’t received royalty payments the agency collected and spent on salaries and bonuses (if any) for corporate insiders may wish to consult competent bankruptcy counsel to see if they might be able to collect at least some of that money.

It would not be unusual for a single attorney or law firm to represent a class of creditors who are similarly situated rather than each creditor hiring his/her own counsel.

Antitrust, the App Store, and Apple

From Stratechery:

Yesterday the Supreme Court held a hearing in the case Apple Inc. v. Pepper. “Pepper” is Robert Pepper, an Apple customer who, along with three other plaintiffs, filed a class action lawsuit alleging that App Store customers have been overcharged for iOS apps, thanks to Apple’s 30% commission that Pepper alleges derives from Apple’s monopolistic control of the App Store.

There are three points to make about this case, and they are captured in the title:

  • First, the specific antitrust doctrine at question
  • Second, the question of whether the App Store is a monopoly
  • Third, what the very existence of these questions say about Apple

In my estimation, these three points move from less certain to more certain, and from less important to more important. In other words, whatever the Supreme Court decides matters less than what the very existence of this case says about the state of Apple and its future.

Antitrust and Standing

The question before the Supreme Court is whether or not Pepper et al. have standing to sue Apple for antitrust violations at all; in other words, the case — which was launched in 2011 — hasn’t even started yet. The Clayton Antitrust Act of 1914 stated that “any person who shall be injured in his business or property by reasons of anything forbidden in the antitrust laws” can bring an antitrust action, but in the 1977 case Illinois Brick Co. v. Illinois, the Supreme Court held that only direct purchasers of illegally priced goods had standing to sue.

The specifics of the Illinois Brick case are helpful in parsing out what makes the Apple case complex; specifically, the Illinois Brick value chain was very straightforward: concrete block makers (including the eponymous Illinois Brick Company) were accused of colluding to fix prices for concrete blocks, which were bought by masonry contractors; masonry contractors in turn submitted bids to general contractors for construction projects, which were ultimately paid for by the State of Illinois. The State of Illinois sued for damages, alleging that the higher prices resulting from the price fixing had been passed through to the State of Illinois.

. . . .

In this value chain it is obvious who the direct purchasers were: masonry contractors; to the extent the State of Illinois suffered harm it was indirect pass-through harm. Thus, the Supreme Court ruled that the State of Illinois did not have standing; if every party in the value chain were to sue, the infringing party could be subject to duplicative recovery for damages (and parsing out the share of damages would be extremely difficult).

Apple vs Pepper

The question in Apple vs. Pepper, then, is who is directly harmed by Apple’s alleged monopolistic practices. According to the plaintiffs, the value chain looks the same as the concrete block manufacturers:

In this case Apple is in between developers and customers; the plaintiffs explain in their petition:

Apple charges apps purchasers a 30% commission on each app sale (unless it is a free app). The price paid by purchasers for an app is the amount set by the apps developer, plus Apple’s own supra-competitive 30% markup, both of which are paid directly to Apple, the alleged monopolist, every time an app is purchased. Apple keeps the entire supra-competitive portion of the purchase price for itself and remits the balance to the apps developers. The apps developers do not sell their apps to iPhone customers or collect any payment from iPhone customers, and iPhone customers are the only purchasers in the entire chain of distribution.

The plaintiffs argue that this makes consumers “direct purchasers”, giving them standing to sue:

Since Illinois Brick was decided 40 years ago, courts throughout the nation have had no trouble applying its “direct purchaser” standing requirement to various factual settings, including cases in which some form of payment is made to an alleged monopolist prior to the monopolist’s sale of a product.

Apple’s argument is that this misrepresents the transaction; the company wrote in its petition:

There is no basis for Respondents’ argument that pass-through damages claims are permitted whenever there is direct interaction between the plaintiff and alleged antitrust violator. This argument openly exalts form over substance by turning entirely on the formal identification of a “direct purchaser” and prohibiting any “further inquiry into the specifics of a case.”

Rather, Apple argues that the value chain looks like this:

Specifically, the company argues that “Apple does not buy and resell apps”:

Respondents suggest for the first time that Apple “has adopted the role of a retailer functionally buying from developers as wholesalers and selling to iPhone owners as consumers.” But their complaint does not allege that. And Respondents have repeatedly acknowledged that only consumers buy apps; Apple does not. The Apple developer agreements cited by Respondents confirm this: developers “do[] not give Apple any ownership interest in [their] [a]pplications.” So Apple is fundamentally unlike a traditional retail store.

Rather, Apple acts as an “agent” for developers:

As Respondents note, [the Developer] Agreement confirms that “Apple acts as an agent for App Providers in providing the App Store and is not a party to the sales contract or user agreement between [the user] and the App Provider.” Thus, Respondents concede that the direct sale is actually between developers and consumers, facilitated by Apple as an agent and conduit.

Along those lines, Apple argues that developers set the price of their apps, which determines Apple’s 30% cut, and to the extent developers set prices higher to compensate for that cut they are passing on alleged harm to consumers — which means consumers don’t have standing to sue.

Link to the rest at Stratechery

PG says there’s nothing more bracing in the morning than a bracing dose of antitrust law. It tones up the mind and prepares it for broad gauge analytical work in any field.

Attorneys for Parneros, Barnes & Noble Meet in Court

From Publishers Weekly:

At a 20-minute initial conference, lawyers for Demos Parneros portrayed the fired CEO as a respected executive who is now “unhirable” after being wrongly dismissed for alleged sexual harassment. Lawyers for Barnes & Noble said they have “a different view of the facts.”

. . . .

In the brief opening conference, [Judge] Koeltl asked attorneys for each side if they’d be willing to at least confer about a settlement with the help of a magistrate judge. And while neither side sounded optimistic about a deal (Parneros’ attorney Anne L. Clark told the court that settlement discussions had been broached at one point but “didn’t get far”) neither side offered “an unequivocal no,” Koeltl observed, prompting him to say he would refer the parties to U.S. Magistrate judge Gabriel Gorenstein for a settlement conference. The signed scheduling order gives the parties until December 3 to notify the court “if such a referral would be useful for purposes of a settlement.”

Koeltl also suggested the two sides consider waiving the jury waiver clause in Parneros’s employment contract, and proceed with a jury. The litigation is currently proceeding as a non-jury case.

. . . .

In today’s 20-minute hearing, Clark portrayed Parneros as a respected, once heavily recruited executive who is now “unhirable” after being wrongly dismissed for alleged sexual harassment. Clark reiterated Parneros’s claim that he did not sexually harass anyone, and said that an incident with an executive assistant cited as the basis for his firing had been “resolved” in-house prior to his dismissal. Parneros, Clark said, also denies being abusive toward other members of the Barnes & Noble’s executive team.

Link to the rest at Publishers Weekly

Social Media and E-Discovery

For a little introduction, in US civil litigation, following the filing of a lawsuit, each of the parties will virtually always engage in discovery.

In this context, discovery means discovering what information the other side has that will support its case or provide a defense against your claims.

In much civil litagation, there are three classes of discovery:

  1. Document discovery – letters, notes taken during meetings, tape recordings, emails, contracts, promissory notes, etc., etc. that may be used as evidence at trial or lead to the discovery of evidence are produced for the other side to examine, usually in the form of copies. This type of discovery may also apply to things that may be placed into evidence – a defective device that caused harm to one of the parties, for example.
  2. Interrogatories – Written questions that one side serves on the other for which written answers will be provided, attested to be true under oath.
  3. Depositions – The parties (usually) and their lawyers (always) meet in somebody’s conference room Generally speaking, a court recorder or a technician who minds a digital will also be present to make a record of the deposition. The lawyer for one side asks quesitons which the opposing party or a fact witness who may be testifying for the opposing party or an expert (physician, engineer) who may be testifying on behalf of the other party. The witness is placed under oath and is required to answer truthfully to the best of her/his knowledge.

Once a legal fight begins or is imminent, all parties are supposed to take reasonable steps to preserve evidence or likely evidence that is likely to be needed at trial. If a party destroys evidence, the court may be able to treat such destruction as an indication that the evidence would be harmful to that party’s case, impose sanctions, etc.

The OP below talks about issues involved in gathering and preserving Electronically Stored Information (ESI) that is or may become evidence in litigation.

From Legaltech News:

Of the 7.5 billion people in the world, a staggering 3 billion are using social media. Suffice to say, this trendy method of communication stopped being a fad long ago, but the world of law is really just catching up. Woven into our global society, social media provides easy access to groups of like-minded people. These platforms give us the ability to share personal details with our extended circles and be informed in “real-time” of events traditionally reserved for the nightly news. From the lens of the law, the question then becomes, how does social media play a role in current and future litigation?

Based on our normal interaction with third-party platforms like Facebook, Instagram, Twitter and the like, most of us believe our online information to be private and secure. Right? Not really, not at all.

Third Party Doctrine

To be clear, the courts have stated that the Third Party Doctrine is dispositive. Meaning, once an individual provides a third party (like social media) with information, and voluntarily agrees to share that information with someone else (like the newsfeed or followers), that person loses any reasonable expectation of privacy.

Stated in the Yale Journal of Law and Technology, “…If the third-party doctrine governs social media behavior, then published content voluntarily shared among connections within a private social network loses all reasonable expectation of privacy, including any reasonable expectation that a user’s connections will not turn over their social data to investigative authorities.”

Now, how is this doctrine applied within the courtroom? The jury is out on that.

Court Opinions Vary

The court has been inconsistent in how to fall regarding social media discovery. The way the law was applied in these two contrasting cases best characterizes this discrepancy.

Romano vs. Steelcase Inc.

Backstory: Kathleen Romano fell at work. She claimed to be permanently injured due to the fall and brought a case again her employer, Steelcase.

The Role of Social Media: During the proceedings, Steelcase subpoenaed her Facebook and Myspace pages. The request wasn’t immediately granted. However, Steelcase pushed the envelope and moved to compel, stating that public information seen online indicated a lifestyle different than what the plaintiff was asserting in court (traveling, being very active, etc.). The court then decided that her social media presence “didn’t come with a reasonable expectation of privacy.” It granted the motion to compel and gave the defendant full access to the plaintiff’s current and historical Facebook and Myspace pages.

Tompkins v. Detroit Metropolitan

Backstory: Tompkins filed suit with Detroit Metro after slipping and falling at the airport. The plaintiff refused to voluntarily give the defendant unrestricted access to her Facebook information, including items that she has labeled as “private” or unavailable for public viewing.

The Role of Social Media: The defendant moved to compel (similarly to Steelcase) arguing that Tompkins’ publicly available photos of herself brought into question the severity of her injuries. The court made clear that social media was discoverable, even things that were designated as private, but that there were limits to that discoverability. They ruled that the defendant did not, “have a generalized right to rummage at will through information that plaintiff has limited from public view.”

The court ruled that the defendant must make a threshold showing that publicly available information on social networking sites undermines the plaintiff’s claims, and that searching through the entire account was considered overboard. As such, the defendant did not obtain the plaintiff’s private Facebook information.

Link to the rest at Legaltech News

At the end of this post is a link to a court order in a class action suit filed on behalf of a large number of cancer patients who claim they were harmed by taking an anti-cancer chemotherapy drug called Taxotere.

In this order, the trial court is laying out the kinds of electronic documents the plaintiff cancer patients must provide to the defendant drug company.

In this case, the obligation to produce such electronic documents includes the obligation for each plaintiff to diligently search of all the places that ESI may exist because emails, text messages, Facebook posts, blog posts, etc., etc., may contain information concerning the harm the plaintiffs are claiming they suffered during chemotherapy because of Taxotere.

If a chemotherapy patient was texting smiley faces to everyone during and after treatments, maybe he/she wasn’t really hurting all that much.

If PG were required to do the type of search into his electronic past as described in the court order, he would think about whether the court-mandated digging through the enormous mass of his digital detritus was worse than the cancer.

Here’s a link to the court order.

.

Medallion Press Files for Chapter 7 Bankruptcy

From Publishers Weekly:

Medallion Press filed for Chapter 7 bankruptcy October 18, in the U.S. Bankruptcy Court of Northern District of Illinois. In its filing, the publisher listed assets of $100,001 to $500,000 and liabilities in the same range. It cited between 200 to 999 creditors.

Under a Chapter 7 filing, a trustee will liquidate a company’s assets in order to earn as much money as it can to pay creditors.

. . . .

Medallion was founded in 2003 by Helen Rosburg, a published romance author and great-granddaughter of Wrigley Co. founder William Wrigley. The house initially focused on publishing mass market paperbacks in the categories of general fiction, romance, fantasy, paranormal, science fiction, mystery and thrillers.

After growing steadily from its launch to 2010, Medallion formed with Medallion Media Group and put an eye towards entering the movie and music business.

. . . .

Since word of the bankruptcy started to spread, agents have been working to retrieve the publishing rights of their authors from the company.

Link to the rest at Publishers Weekly

Several lifetimes ago, as a volunteer lawyer working with Legal Aid (an organization that provides legal assistance to poor people in the US), PG filed a lot of Chapter 7 bankruptcy petitions. That said, he has not remained current on bankruptcy law and does not provide any legal advice for those involved in bankruptcy proceedings. He especially doesn’t provide legal advice via blog posts on TPV.

For business organizations, a typical bankruptcy will be filed under Chapter 7 (the business can’t pay its debts and its assets will be liquidated and the proceeds divided among its creditors) or Chapter 11 (if the bankruptcy court will hold the creditors at bay, the business can reorganize itself, stretch out some payments, get out of some contracts and once again become a viable business entity).

The OP says Medallion has filed for a Chapter 7 bankruptcy. If the legal process is carried through to conclusion, Medallion will cease to exist after a period of time during which its assets are sold and, under the supervision of a court-appointed bankruptcy trustee, the proceeds divided among its creditors according to priorities set in the bankruptcy laws. Any current or future lawsuits against the company get rolled into the bankruptcy process along with the claims of all creditors, including authors who haven’t been paid their royalties.

The OP says literary agents have been working to retrieve the publishing rights of their authors from Medallion. Unless the agents have retained competent bankruptcy counsel, that isn’t going to happen. Medallion no longer controls the publishing rights. Upon the filing of the Chapter 7 petition, which has already occurred, the bankruptcy court controls the publishing rights and all other assets owned by Medallion. Whoever may answer the phone at Medallion can’t do anything with publishing rights, regardless of how persuasive a literary agent may be.

PG is not aware of any special provisions of the bankruptcy laws that place authors in a privileged position in a Chapter 7 bankruptcy of a publisher (although he would be very happy to learn such provisions exist).

Absent such provisions, the publishing agreements between Medallion and its authors are assets that the bankruptcy trustee will try to sell for the best price possible to whoever will pay that price. Any claims for unpaid royalties owed to authors will likely be rolled into the pile of unpaid debts of Medallion and cash resulting from sales of assets will be divided among the printer, the utility companies, UPS, the bookstores that have returned Medallion books for a refund and not been paid, etc., etc., etc., and the authors.

Absent unusually valuable assets, PG suspects the authors will receive a small fraction of their unpaid royalties.

But what about the publishing rights the agents are apparently attempting to retrieve?

In a variety of different business contracts, somewhere back in the boilerplate provisions, there is a bankruptcy clause that is worded something like the following:

In the event that either Party files for protection under bankruptcy laws, makes an assignment for the benefit of creditors, appoints or suffers appointment of a receiver or trustee over its property, files a petition under any bankruptcy or insolvency act or has any such petition filed against it which is not discharged within sixty (60) days of the filing thereof, then the other Party may terminate this Agreement effective immediately upon written notice to such Party.

Unfortunately, upon the filing of a bankruptcy petition, this contract provision becomes unenforceable.

The bankruptcy court determines what happens under the contracts that are held by the individual or company filing for relief under US bankruptcy law. As stated above, generally speaking, under Chapter 7, the bankruptcy trustee tries to sell the assets owned by the person or company filing for bankruptcy relief to whoever offers to pay the highest price.

As an uninvolved observer (and not as an attorney), PG expects the publishing contracts between Medallion and its authors will be sold to an individual or company and (voilà!) – all the Medallion authors will have a new publisher!

The new publisher might be Random House or it might be Kevin the Krusher, New Jersey junkyard magnate, who buys the publishing contracts as a gift for his spoiled son, Digby, who has always wanted to be a member of the literary set.

If the Medallion publishing agreements include the most unfortunate, but quite common provision by which the author granted Medallion the right to publish his/her books for the full term of the copyright the author owns for the book (typically, the rest of the author’s life plus 70 years in the US), each of the Medallion authors can look forward to receiving royalty statements (or not) from Digby every once in awhile accompanied by royalty checks (or not).

After Digby retires, Digby, Jr., may become the publisher followed by Digby III (or not).

Or, if the circle of life applies to publishing contracts, perhaps Digby will burn through all his father’s money and file a petition for relief under Chapter 7 of the Bankruptcy Code.

EFF calls for reforms – – to the reforms!

From The 1709 Blog:

As the CopyKat reported earlier this week, the technology sectors are continuing their assault on planned reforms to EU Copyright law, and now the Electronic Frontiers Foundation has joined the likes of Google, YouTube and Facebook in criticising the planned copyright law reforms. In a letter the EFF say has been sent to everyone involved in the upcoming “Trilogues”, the meetings held between representatives from European national governments, the European Commission, and the European Parliament, Cory Doctorow argues that the reforms contained in Articles 11 and 13 of the Copyright Directive are “ill considered and have no place in the Directive”, concluding that instead of effecting some “piecemeal fixes to the most glaring problems”, the Trilogue takes a simpler approach, and removes them from the Directive altogether.

Having previously opined that the vote in the European Parliament that passed the draft Directive “brought the EU much closer to a system of universal mass censorship and surveillance, in the name of defending copyright” and that Articles 13 and 11 would create “upload filters” and the “link tax”, the EFF’s views are perhaps unsurprising – you can make of the points raised as you will, as the letter is set out in full is below:

The Electronic Frontier Foundation is the leading nonprofit organization defending civil liberties in the digital world. 

. . . .

 We believe that Articles 11 and 13 are ill-considered and should not be EU law, but even stipulating that systems like the ones contemplated by Articles 11 and 13 are desirable, the proposed text of the articles in both the Parliament and Council texts contain significant deficiencies that will subvert their stated purpose while endangering the fundamental human rights of Europeans to free expression, due process, and privacy.

. . . .

 Article 13: False copyright claims proliferate in the absence of clear evidentiary standards or consequences for inaccurate claims.

Based on EFF’s decades-long experience with notice-and-takedown regimes in the United States, and private copyright filters such as YouTube’s ContentID, we know that the low evidentiary standards required for copyright complaints, coupled with the lack of consequences for false copyright claims, are a form of moral hazard that results in illegitimate acts of censorship from both knowing and inadvertent false copyright claims.

For example, rightsholders with access to YouTube’s ContentID system systematically overclaim copyrights that they do not own. For instance, the workflow of news broadcasters will often include the automatic upload of each night’s newscast to copyright filters without any human oversight, despite the fact that newscasts often include audiovisual materials whose copyrights do not belong to the broadcaster – public domain footage, material used under a limitation or exception to copyright, or material that is licensed from third parties. This carelessness has predictable consequences: others — including bona fide rightsholders — who are entitled to upload the materials claimed by the newscasters are blocked by YouTube and have a copyright strike recorded against them by the system, and can face removal of all of their materials. To pick one example, NASA’s own Mars lander footage was broadcast by newscasters who carelessly claimed copyright on the video by dint of having included NASA’s livestream in their newscasts which were then added to the ContentID database of copyrighted works. When NASA itself subsequently tried to upload its footage, YouTube blocked the upload and recorded a strike against NASA.

In other instances, rightsholders neglect the limitations and exceptions to copyright when seeking to remove content. For example, Universal Music Group insisted on removing a video uploaded by one of our clients, Stephanie Lenz, which featured incidental audio of a Prince song in the background. Even during the YouTube appeals process, UMG refused to acknowledge that Ms. Lenz’s incidental inclusion of the music was fair use – though this analysis was eventually confirmed by a US federal judge. Lenz’s case took more than ten years to adjudicate, largely due to Universal’s intransigence, and elements of the case still linger in the courts.

Finally, the low evidentiary standards for takedown and the lack of penalties for abuse have given rise to utterly predictable abuses. False copyright claims have been used to suppress whistleblower memos detailing flaws in election security, evidence of police brutality, and disputes over scientific publication.

Article 13 contemplates that platforms will create systems to allow for thousands of copyright claims at once, by all comers, without penalty for errors or false claims. This is a recipe for mischief and must be addressed.

Article 13 Recommendations

To limit abuse, Article 13 must, at a minimum, require strong proof of identity from those who seek to add works to an online service provider’s database of claimed copyrighted works and make ongoing access to Article 13’s liability regime contingent on maintaining a clean record regarding false copyright claims.

Rightsholders who wish to make copyright claims to online service providers should have to meet a high identification bar that establishes who they are and where they or their agent for service can be reached. This information should be available to people whose works are removed so that they can seek legal redress if they believe they have been wronged.

In the event that rightsholders repeatedly make false copyright claims, online service providers should be permitted to strike them off of their list of trusted claimants, such that these rightsholders must fall back to seeking court orders – with their higher evidentiary standard – to effect removal of materials.

This would require that online service providers be immunised from Article 13’s liability regime for claims from struck off claimants. A rightsholder who abuses the system should not expect to be able to invoke it later to have their rights policed. This striking-off should pierce the veil of third parties deputised to effect takedowns on behalf of rightsholders (“rights enforcement companies”), with both the third party and the rightsholder on whose behalf they act being excluded from Article 13’s privileges in the event that they are found to repeatedly abuse the system. Otherwise, bad actors (“copyright trolls”) could hop from one rights enforcement company to another, using them as shields for repeated acts of bad-faith censorship.

Online service providers should be able to pre-emptively strike off a rightsholder who has been found to be abusive of Article 13 by another provider.

Statistics about Article 13 takedowns should be a matter of public record: who claimed which copyrights, who was found to have falsely claimed copyright, and how many times each copyright claim was used to remove a work.

Article 11: Links are not defined with sufficient granularity, and should contain harmonised limitations and exceptions.

The existing Article 11 language does not define when quotation amounts to a use that must be licensed, though proponents have argued that quoting more than a single word requires a license.

The final text must resolve that ambiguity by carving out a clear safe-harbor for users, and ensure that there’s a consistent set of Europe-wide exceptions and limitations to news media’s new pseudo-copyright that ensure they don’t overreach with their power.

Additionally, the text should safeguard against dominant players (Google, Facebook, the news giants) creating licensing agreements that exclude everyone else.

News sites should be permitted to opt out of requiring a license for inbound links (so that other services could confidently link to them without fear of being sued), but these opt-outs must be all-or-nothing, applying to all services, so that the law doesn’t add to Google or Facebook’s market power by allowing them to negotiate an exclusive exemption from the link tax, while smaller competitors are saddled with license fees.

As part of the current negotiations, the text must be clarified to establish a clear definition of “noncommercial, personal linking,” clarifying whether making links in a personal capacity from a for-profit blogging or social media platform requires a license, and establishing that (for example) a personal blog with ads or affiliate links to recoup hosting costs is “noncommercial.”

Link to the rest at The 1709 Blog

Regarding Article 11, PG suggests that the overwhelming majority of websites currently published on the internet are anxious for others to link to them. Placing any legal or regulatory barriers, hurdles or speed bumps in the path of such longstanding linking practices is an attack on the very nature of the internet. Hypertext and hyperlinks are foundational to both the logical and technical bases of the internet.

A link tax is a regulatory structure that may benefit a minuscule number of online information providers, a drop in the vast ocean of internet sites and the information they offer, by creating a regulation that threatens the entire ecosystem of that ocean.

A far better approach would be to require those who desire to protect their online information from standard internet protections to establish their own shared protocols and technology that will clearly differentiate the online information for which they wish to charge license fees from the vastly larger and more varied open internet. Browsers and other internet access devices can be redesigned to reject connections to sites operating with such protocols, presumably enforcing a paywall or other limitation on use absent a token provided by such sites that permits the browser to accept connections to that site.

Putting the onus on the small group of profit-seeking information providers to develop a common standard that can be recognized by widely used browsers and other means of accessing online information places the costs of such a new system upon those who wish to use it and intend to profit by it in some respect or otherwise achieve a purpose which is served by isolating such information and services from universal online access.

If such a protocol is properly designed, the potential for innocent or unintended violation of the rights of owners of such protected information will be greatly reduced, if not eliminated. In addition to protecting the greater mass of less-sophisticated users from inadvertent violations of the property rights of those protected by this protocol, it will allow such owners and enforcement authorities to focus on the small group of individuals who wish to improperly steal such information or expose it to wider audiences of viewers who have not paid the required license fee.