Legal Stuff

B&N Press Now Offers Ebook Coupon Codes

30 March 2019

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

26 March 2019

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?

24 March 2019

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?

17 March 2019

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

16 March 2019

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

14 March 2019

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

26 February 2019

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

26 February 2019

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.

 

 

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