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.

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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.

Ten things you should know about Instagram’s terms of use

From Inforrm’s Blog:

1. The terms are confusing

Users must agree to the terms of use before they can have an Instagram account. The minimum age to sign up is 13. But the reading age for the terms are closer to university level. They are written using complicated language. For example, the licence granted is described as “a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of”.

2. You own your own photos, right?

Instagram claims it does not take ownership of its users’ content. But the terms state that the user grants Instagram a “non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use their content”. What this means is that Instagram has all the rights of the original owner of the content – aside from the fact that it is not an exclusive licence. It is important that photographers are aware of this because if they sell an image under an exclusive licence, posting the image on their Instagram would breach that licence.

3. Instagram can give away or sell your content

Instagram can sub-licence your content. This means that it could licence a user’s photograph or video to any third party, for free, without seeking permission, giving any notice or offering any payment to the user. It could also take a user’s content and let another company use that photo in exchange for a fee – which Instagram keeps.

. . . .

7. It’s a one-way street

The terms state that the same rules do not apply to Instagram’s content, which they specify is protected by Intellectual Property and cannot be copied, modified, edited, published, used or licenced. This restrictive approach is particularly problematic for other app developers, such as those who create apps to work in conjunction with Instagram to perform additional functions, such as analysing followers, unfollowers and boosting likes.

. . . .

10. Instagram should do better

Instagram’s user agreement gives it unnecessarily broad rights over its users’ content. It encourages sharing – for the benefit of advertising revenues – but leave users vulnerable to copyright infringement claims.

In my own research I have argued that Instagram should introduce an improved copyright policy that includes:

  • amending its user agreement so that it is clearer and fairer towards users and does not leave them vulnerable to copyright claims, or licence breaches.
  • adopting a “Notice and Takedown procedure” so users can request that infringing copies of their work are taken down by Instagram – similar to when content is blocked for copyright reasons on YouTube to enable copyright holders to enforce their rights, rather than taking court action.
  • the company should introduce a copyright education tool to provide information and awareness about the law to its users and inform copyright holders when another user has screen-grabbed their image (while at the same issuing a copyright notice to the person who has taken the grab).

If Instagram does not take these steps, the company might find itself in a spot of trouble. Just this month, the Paris Court of First Instance found that Twitter’s Terms of Use (not dissimilar to Instagram’s) were void and unenforceable because they were “abusive” towards users. Twitter, which could face fines of up to €30,000, will now have to remove terms and replace them with ones which are compliant.

Link to the rest at Inforrm’s Blog

Comicsgate leader is suing a Marvel/DC writer for defamation

From The Daily Dot:

Comicsgate figurehead Richard C. Meyer is taking DC/Marvel writer Mark Waid to court, suing him for “tortious interference with contract and defamation.” Meyer accuses Waid of ruining his career in comics; a bold move considering the reputation Meyer already created for himself.

Gaining notoriety as a conservative reactionary YouTuber, Meyer is best known for provoking harassment campaigns against women, people of color, and trans people in the comics industry. He’s the comics publishing equivalent of Milo Yiannopoulos, and his behavior is widely documented on social media and in mainstream outlets like the Guardian and Washington Post.

. . . .

The lawsuit relates to Jawbreakers, a comic written by Meyer and drawn by Jon Malin and Brett R. Smith. Jawbreakers is an action comic about a team of former superheroes, marketed as an “apolitical” response to a perceived progressive bias at Marvel and DC. It was initially meant to be published by Antarctic Press (a small indie publisher), but they dropped it following backlash from the comics community. Several retailers promised to boycott the comic if it came out, while prominent writers and artists criticized Antarctic Press for giving Comicsgate a platform.

. . . .

By this point, in May 2018, Meyer and Comicsgate were already infamous for stirring up trouble. Waid was one of the most high-profile people to speak out against Jawbreakers, posting on Facebook to say he’d personally informed Antarctic Press of Meyer’s behavior:

“I have a call in to Antarctic Press. Until I hear back, I’m (hesitantly) willing to give them the benefit of the doubt that they don’t really understand who or what they’re getting into business with, which – though it would seem a stretch – is a possibility. If I do hear back, I’ll report in. Curious as to how they feel about publishing creators whose marketing strategy is to allegedly (*koff*) encourage their fans to threaten the employees of stores, and/or harass and one-star-review-bob stores, that don’t order their product.”

Soon after, Antarctic dropped Jawbreakers. Meyer decided to self-publish on Indiegogo instead, successfully marketing the comic as a battlefield in the culture wars. Basically, he used this controversy to gin up further support—and characterize himself as an underdog rebel while Waid represented the comics establishment.

. . . .

Meyer’s lawsuit frames Waid as his nemesis, saying that he personally defamed Meyer’s character and irreperably damaged his career. It describes Antarctic Press as “frightened for its very survival by Waid’s threats,” with Waid as the sole reason Jawbreakers got cancelled – ignoring the widespread public outcry from numerous other creators and comic stores. Meyer also says that Waid falsely accused him of sharing a list of comic store owners (i.e. doxing them), and defamed Meyer by characterizing him as “racist, serial harasser of minorities, and as affiliated with white supremacists.” He demands a jury trial and $75,000 in damages.

Link to the rest at The Daily Dot

PG suspects he’s not alone in wondering why some people have the idea that litigation can effectively settle what amount to glorified cat fights.

He has no knowledge of the subject of this disagreement or the identity of the parties involved, but “mere insults, indignities, threats, annoyances, or petty oppressions” are not a basis for suing for emotional distress (Restatement (Second) of Torts § 46 cmt. d. (1965)), which is the gravamen of most of these types of disputes

 

The Inner Voice

From Aeon:

‘I think, therefore I am,’ the 17th-century philosopher René Descartes proclaimed as a first truth. That truth was rediscovered in 1887 by Helen Keller, a deaf and blind girl, then seven years of age: ‘I did not know that I am. I lived in a world that was a no world … When I learned the meaning of “I” and “me” and found that I was something,’ she later explained, ‘I began to think. Then consciousness first existed for me.’ As both these pioneers knew, a fundamental part of conscious experience is ‘inner speech’ – the experience of verbal thought, expressed in one’s ‘inner voice’. Your inner voice is you.

That voice isn’t the sound of anything. It’s not even physical – we can’t observe it or measure it in any direct way. If it’s not physical, then we can arguably only attempt to study it by contemplation or introspection; students of the inner voice are ‘thinking about thinking’, an act that feels vague. William James, the 19th-century philosopher who is often touted as the originator of American psychology, compared the act to ‘trying to turn up the gas quickly enough to see how the darkness looks’.

Yet through new methods of experimentation in the last few decades, the nature of inner speech is finally being revealed. In one set of studies, scans are allowing researchers to study the brain regions linked with inner speech. In other studies, researchers are investigating links between internal and external speech – that which we say aloud.

. . . .

William James had a complete disdain for the study of inner speech, because, to him, it was a ghost: impossible to observe. The French developmental psychologist Jean Piaget insisted that private speech signified simple inability – it was the babble of a child without capacity for social communication with no relation to cognitive functioning at all. Through much of the 20th century, Piaget seized the reigns of child development, insisting that children had to reach a developmental stage before learning could occur. Which came first: the chicken or the egg? Vygotsky said that learning occurred, then the brain developed. Piaget said the brain developed, then learning occurred.

Over years of meticulous experiment behind the Iron Curtain, Vygotsky continued to make his case. One thing he did was study children in the zone of proximal development as they worked with adults to accomplish tasks. In the experiments, the child would be presented with a challenge and a tool for overcoming it. In the zone, Vygotsky observed what he called ‘private speech’ – self-talk that children between the ages of two and eight often engage in. This intermediate stage, he held, was connected on one end to a prior period when we had no thread of memory (and no inner voice) and on the other end to true inner speech so crucial to self-reflection, narrative memory, and development of cognitive skills.

. . . .

By 1970, the push to validate Vygotsky’s ideas had picked up steam. A leader of that era was the American psychologist Laura Berk, professor emeritus at Illinois State University, an expert on childhood play. Berk observed children engage in imaginative, ‘make-believe’ play, and demonstrated that the substitution of objects – say a cup for a hat – requires internal thought (and self-talk) rather than impulse. Her studies show that during imaginative play, children’s self-talk helps them guide their own thoughts and behaviour and exert true self-control. She and many other child psychologists demonstrated the importance of the inner voice, beyond a doubt, elevating Vygotsky and burying Piaget for good.

. . . .

Do people in adulthood experience inner speech in the same way as children – or even as each other? Do most of us even have an inner voice – an internal commentator narrating our lives and experiences from one moment to the next?

These were deeply controversial and introspective questions in the 1970s, and they captured the imagination of Russell Hurlburt, an aeronautical engineer-turned-clinical-psychology graduate student at the University of South Dakota. Hurlburt had envisioned a way to accurately sample others’ random inner experiences. Today a professor of psychology at the University of Nevada, Las Vegas, he’s been honing the technique ever since.

Hurlburt calls his methodology Descriptive Experience Sampling (DES), and it works by sampling the inner thoughts of a given interviewee during those moments when a beeper randomly goes off. After extracting the contents of inner experience from countless interviews, Hurlburt has defined an array of phenomena typically shared by humans – auditory and visual imagery, emotion, awareness of real stimuli and a category of thoughts that occur without words, images or symbols of any kind. The main contribution here, though, is actually DES itself. Before its inception, introspective methods had been shunned for decades, if not centuries, as being too highly influenced by bias to be taken seriously. Now, with DES, Hurlburt believes in the possibility of obtaining unbiased, accurate snapshots of inner experience that includes inner speech.

Freed from the mundane confines of a laboratory, the data come from ‘the wild’, as Hurlburt puts it. A participant wears the beeper, which can go off at any moment throughout the day. They go about their daily activities and are likely to forget its presence. When the beeper does go off, the participant makes a careful note of exactly what their inner experience was immediately beforehand. Subsequently, they are questioned by Hurlburt about that experience in a thorough but open-ended interview.

The interview process itself requires an exacting, friendly yet trial-like probe of what occurred. In one unedited transcript in Hurlburt’s book Exploring Inner Experience (2006), a participant named Sandy is quoted following a beep: ‘I was reading. I was starting with the word “life”… and I had an image in my head – it was a black and white image, by the way – of… OK, I was staring at the word “life” and I had said to myself “life” in my own tone of voice.’

Sandy was referring to inner speech using the word ‘life’. For the next six minutes Hurlburt probed her about this experience. His questions eventually helped Sandy divulge that as she was inwardly speaking the word ‘life’ she simultaneously ‘saw an image of that word in an old-courier like font – black on a white background’ and a moving image of ‘sand pouring’ from a hand of unknown agency below her face.

. . . .

‘There are a lot of people who believe that you talk to yourself allof the time, so that’s a form of external pressure to say you were inner speaking when maybe you weren’t,’ he notes. For example, noted consciousness researcher Bernard Baars has asserted that ‘overt speech takes up perhaps a tenth of the waking day; but inner speech goes on all the time’. Hurlburt’s research shows this isn’t true; he finds that inner speech consumes about 25 per cent of an average person’s day, and thus, he is careful to not communicate any assumption about what type of inner experience a DES interviewee may have had at the time of the beep.

Thanks to the accuracy of DES, Hurlburt has found thought patterns associated with various clinical populations, including those with schizophrenia, bulimia nervosa, and autism. In a sample of bulimic participants, for instance, he’s found the propensity for multiple inner voices experienced at the same time. Take ‘Jessica’, a patient watching television when the DES beep occurred. In the front of her head, Hurlburt explains, she was inwardly saying ‘blond’, ‘skinny’, ‘guys’, and ‘stare’ in what was her own, unspoken voice. At the same time, in the back part of her head, she was saying, in another, quieter inner voice, still her own: ‘Why is it that movies and TV shows always have ‘girls for’, ‘to’, and ‘at’? Importantly, such experiences are not often perceived by the experiencers themselves, let alone revealed to anyone else.

. . . .

Fernyhough calls the most familiar level of inner speech ‘expanded’ because it is basically the same as external speech – grammatical and fully formed, but not vocal. He believes this kind of inner speech is most likely engaged when we are under stress or cognitive pressure. Imagine, for example, while travelling, that you are making an important phone call regarding a lost passport. While on hold there’s a good chance that you’ll mentally rehearse exactly what you are about to say to the official on the other end – your story about how your passport went missing – in language that is full and complete.

. . . .

The second broad category of inner speech defined by Fernyhough is considerably more mysterious and enigmatic. He calls it ‘condensed’ inner speech, borne out of Vygotsky’s belief that as speech becomes internalised it can undergo profound transformations that set it distinctly apart from the expanded version. Condensed inner speech is defined as a highly abbreviated and ungrammatical version of regular speech. Although possibly linguistic – comprised of words – it is not intended to be communicated or even understood by others. For example, as a habit in the winter since my younger days, I often think to myself, ‘passlockmoney’ before heading out the door to go snowboarding. For you to understand what I mean, I’m required to expand this term: Remember your ticket or pass if it is still valid, your snowboard lock, and cash or credit card for getting lunch (and après beer).

Link to the rest at Aeon

While PG was reading the OP, he realized that one of the instances in which he is most aware of his inner speech is when he is composing a legal document, often a contract.

His objective during such exercises is to be extremely precise with the words he uses and their operations in sentences and paragraphs. He actively seeks for possible alternative meanings and changes what he has written to avoid such alternatives and to create an expression that can only be interpreted to mean a single thing.

To this end, PG (and other lawyers) will sometimes insert a sentence that begins with something like, “For the avoidance of doubt”. The purpose of such sentences is to rule out a possible misinterpretation of a prior contract provision.

A greatly simplified use of this technique might be, “Author grants Publisher the exclusive right to publish the Work in hardcopy and paperback form. For the avoidance of doubt, Author retains all rights to publish the Work or derivative versions of the Work in the form of one or more comic books or graphic novels.”

If a single “For the avoidance of doubt” sentence doesn’t do the trick, another sentence beginning with, “For the further avoidance of doubt” can be employed.

The technique is used to state as precisely as possible what rights each party owns or controls and help deal with potential edge cases by describing what each party does not own or control.

PG’s inner voice is, to the best of his knowledge, always hard at work on such occasions and he is actively seeking to discover any ways in which the contract language might be misinterpreted or used to support a double meaning.