Copyright Maximalists Can't Help But Inject Bogus 'Copyright Wins!' Argument Into Google/Publisher Settlement

from the seriously? dept

In the wake of the settlement concerning book scanning by Google and a variety of book publishers, the Copyright Clearance Center issued one of the more ridiculous statements concerning the situation, in which they basically read into the agreement something that was never there:

"Today's news not only further establishes the value of copyright, but also points to the importance of working with rightsholders when undertaking mass digitization. Collaboration is key when it comes to copyright."

First of all, nothing in the seven-year fight or the settlement helped to "establish the value of copyright." Quite the contrary. It seemed to show what a disaster copyright is today in that it could be used to delay the creation of an amazing resource for the world through highly questionable copyright claims. As for the argument that it's important to "work with" rightsholders when doing things like this, that too is misleading. All it showed is how those rightsholders can hold up the useful creation of such a resource -- and highlight why "permission society" is holding back innovation and better tools for learning and education.

Filed Under: book scanning, copyright, settlement
Companies: copyright clearance center, google, publishers association

Judge Quickly Approves Ebook Pricing Settlement; Says It's In The Public Interest To Stop Price Fixing

from the will-prices-drop? dept

Judge Denise Cote wasted no time at all in approving the DOJ's settlement with three book publishers in its antitrust lawsuit over ebook pricing. While there had been some concerns about the settlement, the judge saw no problem with it at all, and very quickly issued an order approving the settlement (pdf) between the government and HarperCollins, Simon & Schuster and Hachette (the case against others, and Apple continues). The terms of the settlement are straightforward:

1. They must terminate their Agency Agreements with Apple within seven days after entry of the proposed Final Judgment.
2. They must terminate those contracts with e-book retailers that contain either a) a restriction on the e-book retailer’s ability to set the retail price of any e-book, or b) a “Price MFN,” as defined in the proposed Final Judgment, as soon as each contract permits starting thirty days after entry of the proposed Final Judgment.
3. For at least two years, they may not agree to any new contract with an e-book retailer that restricts the retailer’s discretion over e-book pricing.
4. For at least five years, they may not enter into an agreement with an e-book retailer that includes a Price MFN.

Cote basically said that this is a perfectly straightforward price fixing case, and the settlement directly counteracts the price fixing issues, so there's no reason not to just move forward with it.

The Complaint and CIS provide a sufficient factual foundation as to the existence of a conspiracy to raise, fix, and stabilize the retail price for newly-released and bestselling trade e-books, to end retail price competition among trade e-books retailers, and to limit retail price competition among the Publisher Defendants. Although the Government did not submit any economic studies to support its allegations, such studies are unnecessary. The Complaint alleges a straightforward, horizontal price-fixing conspiracy, which is per se unlawful under the Sherman Act.... The Complaint also details the defendants’ public statements, conversations, and meetings as evidence of the existence of the conspiracy. The decree is directed narrowly towards undoing the price-fixing conspiracy, ensuring that price-fixing does not immediately reemerge, and ensuring compliance. Based on the factual allegations in the Complaint and CIS, it is reasonable to conclude that these remedies will result in a return to the pre-conspiracy status quo. In this straightforward price-fixing case, no further showing is required.

Because of this, Cote rejects the idea of any evidentiary hearing and just approves the deal. She notes that due to tons and tons of public comments that were allowed in the case, she is quite well informed of the issues and sees no additional benefit from such a hearing:

It is not necessary to hold an evidentiary hearing before approving the decree. Given the voluminous submissions from the public and the non-settling parties, which describe and debate the nature of the alleged collusion and the wisdom and likely impact of settlement terms in great detail, as well as the detailed factual allegations in the Complaint, the Court is well-equipped to rule on these matters. A hearing would serve only to delay the proceedings unnecessarily.

She does try to summarize the comments against the settlement into four broad categories: (1) that the settlement would harm third party players like indie book stores, indie ebook retailers, indie publishers and authors, (2) that the settlement is "unworkable," (3) that there weren't enough facts to support the price fixing claim, (4) that the impact of such price fixing was actually pro-competition, in that it broke up Amazon's market dominance. She then breaks down each of these arguments to show why none of them apply and the settlement should move forward.

I won't go through all four issues, but I would like to focus on the two that get the most attention, the first and the last. On the first issue, she points out that antitrust law is not designed to protect businesses from the working of the market, but to protect the public from the failure of the market. If the settlement causes some businesses to suffer, but it's in the public interest, there is no problem there.

If unfettered e-books retail competition will add substantially to the competitive pressures on physical bookstores, or if smaller e-book retailers are unable to compete with Amazon on price, these are not reasons to decline to enter the proposed Final Judgment.

As for the last issue (breaking up Amazon's dominance), she notes that it was "perhaps the most forceful species of criticism" but still does not find it persuasive here. The court more or less notes that Amazon's market position isn't on trial, and its use of wholesale pricing does not equal price fixing, as some have alleged. Nor does it show "predatory" pricing, which was a key complaint. The problem there: the evidence showed that Amazon was "consistently profitable." And, to show predatory pricing, "one must prove more than simply pricing below an appropriate measure of cost" but also that the company will jack up prices down the road. And all of the comments failed to do that:

None of the comments demonstrate that either condition for predatory pricing by Amazon existed or will likely exist. Indeed, while the comments complain that Amazon’s $9.99 price for newly-released and bestselling e-books was “predatory,” none of them attempts to show that Amazon’s e-book prices as a whole were below its marginal costs.

Oh, and finally, the court points out that swinging back the blame to Amazon is meaningless for the purpose of this case, anyway, because even if the court accepted that Amazon was price fixing too, that doesn't make it okay for the publishers to price fix themselves. Think of it as the "two wrongs don't make a right" rule.

Third, even if Amazon was engaged in predatory pricing, this is no excuse for unlawful price-fixing. Congress “has not permitted the age-old cry of ruinous competition and competitive evils to be a defense to price-fixing conspiracies.” ... The familiar mantra regarding “two wrongs” would seem to offer guidance in these circumstances.

This probably does not bode well for the other publishers and Apple who are fighting the whole thing...

Filed Under: antitrust, doj, ebooks, price fixing, pricing, settlement
Companies: amazon, apple, hachette, harper collins, simon & schuster

First Round Of Ebook Price Fixing Settlements Are Announced

from the when-crime-does-eventual-pay dept

When the Department of Justice decided to sue Apple and five of the major book publishers for price fixing ebooks, we were glad to see some justice coming to purchasers of overpriced ebooks. Shortly after filing the suit, three of those publishers, HarperCollins, Hachette and Simon & Schuster, decided to settle rather than fight. Now, the first round of settlements have been reached between these three companies and 49 states (sorry Minnesota) and 5 US territories. The settlement totals to around $69 million to be split among the states and territories.

In a press release on this settlement, Connecticut AG George Jepson states that while it is fine for companies to seek profit, they shouldn't harm the public in the process.

While publishers are entitled to their profits, consumers are equally entitled to a fair and open marketplace. This settlement will provide restitution to those customers who were harmed by this price-fixing scheme, but it also will restore competition in the eBook market for consumers’ long-term benefit.

By restoring competition in the market, these publishers agree to allow retailers pricing control of ebooks in the future. This could bring us back to $10 and below new releases that we have sorely missed.

While this settlement is getting underway, the settlement between these companies and the DOJ is still being reviewed. That may take a while as District Court Judge Denise Cote has 868 public comment letters to sift through. Hopefully, she can ignore the ignorant pleas of those opposed to the current settlement proposal and agree to a positive result. All that would be left is that actual lawsuit against Apple, Macmillan and Penguin which are all holding their ground that they did nothing wrong. 

Filed Under: ebooks, price fixing, settlement
Companies: hachette, harpercollins, simon & schuster

DailyDirt: Simulations For Living On Mars

from the urls-we-dig-up dept

Manned missions to Mars aren't going to happen for decades (if ever?), but in the mean time, we have awesome robots roaming the surface of Mars for us. We also have some simulations of living on Mars -- like the Mars500 project -- and the unforgettable original Total Recall movie. Here are just a few more Martian simulations if you need some help escaping from the realities of Earth.

• Will Wright, the creator of SimCity, has imagined what the first Mars settlement might look like in 2047. A Martian town with a population of 8,000 inhabitants sounds somewhat unlikely in less than 50 years, but it might happen someday. [url]
• An open source Mars Simulator built in Java has been around since 1998. SimMars was never commercially released, so this open source project was the only game in town -- until the mod for SimCity 4. [url]
• FMARS is a simulated Mars habitat project, located near an impact crater on Devon Island. The Flashline Mars Arctic Research Station was created by the non-profit Mars Society in 2000 -- and it would be cool if they rented it out on AirBnB... [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post.

Filed Under: colony, fmars, mars, mars500, settlement, simcity, simulation, space

Perfect 10 Case Against Google Dismissed (With Prejudice) After Court Asks Perfect 10 To Open Its Books

from the a-perfect-0 dept

In the same week that Perfect 10 sued Tumblr for alleged copyright infringement, it effectively lost one of its other key lawsuits: agreeing to a dismissal, with prejudice, in its quixotic case against Google that had so far resulted in a string of losses (and useful precedents). Part of the stipulated settlement is that Perfect 10 will never again sue Google over such claims in the past (going forward is another story).

As the TorrentFreak article linked above notes, Perfect 10 was so desperate to find some sort of evidence to use against Google, it offered $25,000 to anyone who could provide evidence that Google "aided or condoned copyright infringement." Considering how often we see people (especially in our own comments) insist that Google does this all the time, it sure seems like when it was time to present evidence no one could come up with a damn thing. And that's not surprising, because if you know anything about anything, you'd know that Google is actually pretty aggressive against infringement (sometimes over-aggressive) -- and contrary to the claims of people who seem to know nothing about online advertising, there's little money made in any advertising around infringement anyway.

What's more interesting is that, as TorrentFreak notes again, this sudden agreement to dismiss the case with prejudice comes after the court had ordered that Perfect 10 open up its books and "provide full insight into all internal communications regarding the court case." Given the accusations concerning Perfect 10's business practices (i.e., supposedly relying on such lawsuits as its business model), perhaps they felt it was better to keep that stuff from being revealed publicly.

Filed Under: copyright infringement, settlement
Companies: google, perfect 10

Final Stats On Heartland Payment Systems Class Action: $1,925 To 11 People, $600k To Lawyers

from the class-action-system-is-broken dept

We've been discussing for years just how broken the "class action" lawsuit system is in the US. The idea behind it sounds like it makes sense: if a company wrongs a bunch of people, the ability to bundle them all into a class, and get recompense via a single lawsuit seems like a good idea. But, in practice, class action lawsuits have basically just become a feeding trough for lawyers to become rich, with very little done to help those wronged. In some cases, the end results of class action lawsuits are completely laughable. Years ago, for example, we highlighted how Netflix "settled" a class action lawsuit by giving everyone a free one-month "upgrade," but if you failed to downgrade by the end of the month, you were kept on the higher plan and charged for it. As I said at the time, that wasn't a "settlement" so much as a marketing program. And, oh yeah, the lawyers who brought the lawsuit against Netflix got $2.5 million.

Law professor Eric Goldman, who's spoken out about the broken class action system in the past, has another ridiculous example, this time involving Heartland Payment Systems. You may recall Heartland as being the company that had the largest security breach ever (at the time), losing data on over 100 million credit cards. A class action lawsuit (of course) followed, and Heartland agreed to pay up to anyone who could show that they were a victim of fraud from the loss. The company didn't have cardholder addresses, so it spent $1.5 million to advertise the settlement, and estimated that over 80% of the potential class saw an ad at least 2.5 times. Either way, not too many claims came in. A total of 290 claims were made, but only 11 were found to be valid.

Heartland had to pay a maximum of $175 to those individuals. Assuming it did pay the maximum, that means the "victims" of the breach got a grand total of $1925 (perhaps less). According to the settlement agreement, Heartland was supposed to pay out at least $1 million to victims (and up to $2.4 million). If less than $1 million worth of victims were found, the rest would go to non-profit organizations focused on protecting consumer privacy rights. That leaves $998,075 for those non-profits.

So, let's summarize:

• Actual victims got: $1925
• Heartland spent $1.5 million to find the people to give out that $1925.
• Somewhere around $998,075 goes to non-profits
• The lawyers who brought the lawsuit? They got $606,192.50. For helping 11 people get less than $200 each. Nice work if you can get it.

That $600k is actually a "discount." The court recognizes the absurdity of using the full $1 million in calculating the "settlement," so it knocks down the "value" (but not the payment) of the money going to the nonprofits, and then uses a bunch of random magic to award the attorneys that $600+k. And, of course, Heartland also ended up paying its own lawyers a ton. In the end, this system involved Heartland paying many millions of dollars... to benefit a "class" of 11 people and giving them less than $2,000.

As Goldman notes, the whole thing seems bizarre:

Thus, it appears they spent over $130,000 to generate each legitimate claim. Surprisingly, the court blithely treats the $1.5M expenditure as a cost of doing business, but I can't wrap my head around it. What an obscene waste of money! Add in the $270k spent on claims administration, and it appears that the parties spent $160k per legitimate claimant. The court isn't bothered by the $270k expenses either, even though that cost about $1k per tendered claim (remember, there were 290 total claims).

Something is broken with the system.

Filed Under: broken, class action, lawyers, settlement
Companies: heartland payment systems

Entertainment Industry Now Shaking Down People At $10 Per Infringement

from the price-is-dropping,-but-it's-automated dept

A few months back, I met with the CEO of a rather successful indie label, talking about business models and strategy. His label had already done a number of really creative and innovative things with its artists, and had found a fair bit of success that way. The label was trying out a number of cool technologies, and I was pretty impressed at the overall strategy. However, he was also debating if he wanted to sign up with a company called Digital Rights Corp, which he said had done a really compelling presentation to him recently, in which it claimed that it would hit up everyone filesharing unauthorized copies of his label's music... and ask them to pay $10 per infringement. He claimed that the company was successful in getting most ISPs to pass on such a monetary request. At the time I hadn't heard of the company, and in looking into it, many of the claims seemed pretty unbelievable.

However, now it appears the company is getting some press coverage, and indeed claims that lots of ISPs have been passing on its "pay up" letters. The company says it has no plans to sue at all. It's sort of a new tactic in copyright trolling: just send a bill and get the ISP to pass it along. The $10 per infringement is certainly a hell of a lot cheaper than what copyright trolls have asked for in the past. And, of course, the reason this system works is it's mostly automated. They put together a list of IP addresses that they assume are infringing, send it to the ISP, and get the ISP to pass along the demands for cash. Two ISPs who have refused have been taken to court (but no individuals have been taken to court).

I do wonder how many people actually pay up when receiving such a letter -- probably a pretty good number, even if there's no legal basis for them to do so. Either way, it seems like the latest evolution in copyright trolling. Don't file lawsuits, but automate, and keep the amounts low to try to make it up in volume.

Filed Under: $10, copyright, settlement, shakedown
Companies: digital rights corp

Major Labels Shamed Into Promising To Give Some Of $105 Million Limewire Settlement To Artists

from the but-how-much? dept

After Limewire settled with the major labels last week, many of us questioned how much of that money would go to actual artists. Many people, quite reasonably, pointed to a quote from a few years ago from the RIAA's Jonathan Lamy saying, "Any funds recouped are re-invested into our ongoing education and anti-piracy programs." That line got a lot of attention, and I wondered if the labels would be forced to actually give some money to artists, and it appears that may be happening. Lamy came out and said that his quote was about something else -- the RIAA's lawsuits against individuals (hurray for suing fans!), rather than this lawsuit against Limewire. Now, the major labels are starting to step forward and say that yes, yes, yes, they'll give some of the money to artists. I'm guessing, at this point, that it's purely a crisis management type situation, where the labels are realizing they need to show that they're giving some of the money to artists (in part because all these stories mean that the artists themselves have started asking). So now that the labels promise to give some of the money to artists, let's see if they ever say how much actually goes to artists...

Filed Under: artists, labels, music, settlement
Companies: limewire, riaa

Limewire Settles For $105 Million; How Much Of That Will Go To Artists?

from the you-get-three-guesses dept

In a move that's hardly a surprise to anyone, Limewire and the RIAA have settled their lawsuit, with Limewire's Mark Groton agreeing to pay $105 million to the labels. This particular trial was only about how much he should have to pay, and a settlement was inevitable, because Groton was already found to be guilty, and the judge had already declared that he, personally, was liable, rather than just the corporation (corporate veil? pierced!). So, at that point, you knew he had to settle. Limewire had already settled with the music publishers, who freaked out when Limewire sought to dig deep into records the publishers did not want public. Either way, as we noted when Limewire lost, this sort of result was inevitable. Limewire really did act quite like Grokster, and it's really bizarre that Groton thought he could keep the site going without this result.

Of course, $105 million is significantly less than what the RIAA had been asking for -- with the judge practically mocking the labels at one point for suggesting that Limewire was on the hook for $75 trillion -- or "more money than the entire music recording industry has made since Edison's invention of the phonograph in 1877." $105 million is also significantly less than the $1 billion that was the whisper number making the rounds that the labels were demanding.

The real question, though, is what will happen to the money, and how much of it (if any) will actually go to any of the artists signed to those labels. If any RIAA label artists receive a check from this lawsuit, please let us know. I expect we'll be waiting a long, long time. In the meantime, we're still curious if this shutdown of Limewire has resulted in any increased sales. A couple months ago, we had an interesting discussion on the topic, and looked at some evidence on both sides. I think it may be too early to tell, but it'll be worth watching to see what the eventual evidence shows.

Filed Under: money, settlement
Companies: limewire, riaa

Leaked Documents Show How The RIAA Plans To Spend The Limewire Settlement

from the it's-not-75-trillion-but-it's-a-start dept

The RIAA believes it is on the cusp of victory in its lawsuit against Limewire, thanks mainly to its large selection of damaging charts. However, it seems to be expecting the worst, if these leaked documents are any indication. All evidence below indicates that the RIAA will be willing to settle for only $15 billion (out of a possible $55 billion). Not only that, but it already has plans in place for the dispersal of the Limewire settlement.

Explanatory Notes

First and foremost, the legal war chest must be refilled. It never sleeps and it is always hungry. Copyright won't protect itself and every battle to secure these rights has become long, uphill and against the wind.

A $15 billion payout doesn't come around every day and our executives are justly entitled to a large chunk of that ($3.15 bil.). As an added bonus (to the bonuses), all executives will be treated to a celebratory blimp ride ($2.25 bil.). This dollar amount seems high until you consider that each executive will be requiring their own blimp. Previously, the executives had shared one blimp, but in the post-Napster environment, "sharing" is obviously no longer a legal option.

Other line items include the ongoing efforts in Washington to impose the RIAA's will on the internet, research and development and the opaquely-named "Other Expenditures."

 

(1) Other Expenditures
Having run the "Stealing a Song = Stealing a Car" analogy into the ground, we need a new "go to" catchphrase. Hence, $1.05 billion should be earmarked for development of a new anti-piracy metaphor. Suggestions include:

• Stealing a song is like stealing a yacht.
• You wouldn't steal popcorn, would you?
• There's no such thing as a free lunch, free song or an infinite good.
• File sharing is as un-American as immigration, outsourcing and opium production.
• You wouldn't steal a blimp, would you?
• Stealing a song is like kidnapping an artist's children and is punishable by a sentence of 25 years to life.

Other incidental expenditures include a much-needed re-upholstering of the executive suites and a celebratory hot tub full of money to splash around in with various members of the escort community, each of whom will be paid in full for their services, including any fees due for public performance.

 

(2) Research and Development
A lion's share of the payout will go towards the ongoing development of a time machine/wormhole to 1991 ($450 million). Many recent efforts have come close but the RIAA has yet to reach the pre-Napster days and develop a parallel timeline in which CD sales increase forever. On the plus side, it did manage to get our mom to hook up with our dad, thus ensuring our continued existence.

Other products/services on the way:

• A computer-unfriendly music delivery system, much needed in this time of digital theft. Wax cylinders have been discussed as well as a partnership with RealPlayer, whose clumsy, bug-ridden software would likely prevent music from being enjoyed on a wide variety of operating systems.
• "Lost Sales" calculation improvements, which should allow the RIAA to seek even larger damages from various file sharing services. It is hoped that we will finally reach the trillion dollar mark within the next decade. In addition, breakthroughs should also be sought in the "Shocking Graph" field, what with the recent success of the "Napster Ruined Everything" line graphs.
• A partnership with the developers of The Club to prevent music from being stolen. A possible route would be some sort of clamp that could be tightened around an ethernet cable to prevent uploading. In other words, not so much "throttling" as "strangling."
• Domain seizure technology, via the RIAA's partnership with ICE, which has already proven its ability to take thousands of sites offline despite lack of evidence or proper investigative techniques. On the front burner: cooperating with ICE's takedown of many large pharmaceutical companies who continue to make themselves rich off various anti-seizure remedies, including the weirdly-named Antivan and Dilantin.

Royalty Payments

Royalty disbursements, as expected, will be delivered in a "top down" fashion. Those artists with the most sales will receive a disproportionately large share of the proceeds. After the "Big 3" are taken care of (and a chunk of money thrown towards Paul McGuiness in hopes that some of it lands in his mouth), the remaining funds will be dispersed to yet more lawyers and an appreciable amount ($300,000 ) put towards the ongoing health of Jon Bon Jovi's remaining hair. It is hoped that he will be able to put off his eventual "Trump Hair" for another 7-10 years, thus ensuring his continued success in the field of "fairly attractive frontmen." See footnotes for royalty dispersals.

*Charting Artists

$300,000 will be divided evenly among those artists currently in the Top 40 at the point of dispersal. If said artist happen to include any of the "Big 3," well, I suppose the rest of you should just write better hits, right? There's no crying in the music industry, especially if you're unrecouped.

*Non-Charting Artists

The remainder of the RIAA's roster will split $150,000. To qualify for payment, bands/musicians must have a viable Wikipedia page (stubs and pages slated for deletion do not count) and a web presence that includes more than just a long-abandoned MySpace page. (Try Facebook.)

Filed Under: leaks, satire, settlement, spending
Companies: limewire, riaa