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Thursday News: I’m running away to join the circus (and the...

There is a claim of monopoly that can be made against Amazon and the Kindle format, particularly with the rise of the exclusive books.  My best guess is that a claim of tying might be most successful.  A tying claim is the purchase of one good that requires the purchase of a second good. There are two famous modern tying cases.

The first is Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 461–62 (1992)  In Eastman Kodak Co., Kodak was accused of driving out non OEM repair companies and parts suppliers ensuring that everyone who had a Kodak photocopier had to use a Kodak repair person and official Kodak parts.  The Supreme Court found that one brand of a product can constitute a separate market (aka the Kindle).

In the early 2000s, the US (and virtually every state) brought an antitrust suit against Microsoft. One of the winning arguments was that Microsoft was illegally bundling Internet Explorer with its operating system, making it hard to remove and reducing the Windows operating system interaction with other web browsers like Netscape.

However, these are not the claims being brought by the independent bookstores and primarily I believe it is because the lawyers and their clients don’t have any understanding of ebooks, digital rights management, and the Amazon’s Kindle.  The petition is embedded in the link before and nearly every factual paragraph alleged contains a major inaccuracy.  As twitter user txvoodoo says, the Wikipedia entry has more accurate information than is contained in the petition.

  1. The petition refers to DRM as DRMs.
  2. It alleges that iTunes moved away from DRM because of lawsuits.
  3. It alleges that “DRMs can also be open-source, meaning that open-source DRM protected ebooks can be read on any open-source device regardless of whom the device and/or the ebook is purchased from.” O_o.  Poor grammar aside, this is not what open source means.  Open source is a specific technology term that refers to the free distribution of code.  What this paragraph means is that DRM that is not platform specific and can be read on any device, no matter where purchased.  Perhaps the lawyers and clients mean social DRM which is sort of what iTunes uses (and I’ve advocated for) which embeds purchasing information in a file so that if it is pirated it can be traced back to the individual purchaser.
  4. “But, the Kindle app works solely with e-books sold by AMAZON.”  No, Kindle Apps (as well as the devices) can read PDFs, TXT, Word, and non encrypted Mobipocket versions.
  5. “Plaintiffs are informed and believe that the Kindle fire holds a dominate position of well over 60% of the small media tablet market”  What defines the small media tablet market? This is like saying Kindle Fire holds the dominate position of the tablets that are only between 7 and 7.5″
  6. “None of the Big Six have entered into any agreements with any independent brick & mortar bookstores…to sell ebooks” The petition does not mention the ePub format which is produced by the publishers and widely available.  Nor does it mention that Kobo entered into an agreement with the American Booksellers Association to offer ebook selling services for independent bookstores.  Nor does it mention that there are independent ebook retailers like BooksonBoard or AllRomance that have developed their own agreements with the Big Six.  In other words, how many brick and mortar bookstores have asked to enter into an agreement to sell ebooks?

Not to mention both Avon and Tor sell ebooks without DRM.

There’s a suit to be made against Amazon, but this is not it.  When you file a suit, the goal is to strike fear in the heart of the recipient and not laughter.  Guess which emotion Amazon’s lawyers are going to experience upon reading this suit.

We are a notice pleading country which means that the facts alleged in a petition need only be sufficient to put the defendants on notice of the gist of a claim.  But the rank ignorance in the petition signals to me that the counsel wouldn’t be able to mount a cogent argument.

cique du soleil

In this news article we have a young man who left the Japanese equivalent of NASA to learn to jump rope well enough to join Cirque de Soleil’s La Nouba. Someone who has written about circuses is Susan Elizabeth Phillips in Kiss an Angel. Business Week

But the upshot (har har) of this article is that unless you are consuming semen in great quantities, ingestion will neither help nor hurt a woman. The spit or swallow dilemma will not be solved by this article. Greatist

In a study published online Feb. 20 in PLOS One, Cornell biomedical engineers and Weill Cornell Medical College physicians described how 3-D printing and injectable gels made of living cells can fashion ears that are practically identical to a human ear. Over a three-month period, these flexible ears grew cartilage to replace the collagen that was used to mold them.”

The bioengineered ear can help structural deformities but it cannot yet improve actual hearing. There are more efforts to create bioengineered human replacement parts for cartilage because cartilage does not need blood to survive. Science Daily

Jane Litte is the founder of Dear Author, a lawyer, and a lover of pencil skirts. She spends her downtime reading romances and writing about them. Her TBR pile is much larger than the one shown in the picture and not as pretty. You can reach Jane by email at jane @ dearauthor dot com

24 Comments

  1. Sarah Frantz
    Feb 21, 2013 @ 06:27:04

    It’s “dominaNT.” WHY is this word so difficult for people to write properly?! “Dominate” is the verb. “Dominant” is the adjective. Argh.

  2. Liz H.
    Feb 21, 2013 @ 07:36:41

    @Jane, I’d agree that the objective is to strike fear into the heart of the opposition, but in my experience, (frequently as the laughing opposition), it’s the Justices’ reactions to such idiocy (and their ability to overlook it) that causes the fear. I’m sure you’ve experienced the same.

  3. Courtney Milan
    Feb 21, 2013 @ 08:04:11

    One of the things that is obvious upon reading the complaint is that whoever wrote it has absolutely zero clue about antitrust except that they have read the statute.

    I recognize that this is not a legal brief, but someone who didn’t want to underimpress the court (and/or opposing counsel) would make it clear in Claim One whether they were alleging a vertical or a horizontal restraint of trade. Someone who had a freaking clue about antitrust would say somewhere in Claims Two and Three that Amazon’s monopoly (or attempted monopoly) was obtained through unlawful coercive power (something that’s a necessary element of the offense and that they fail to specifically allege). Someone who knew something about antitrust wouldn’t quote part of Section One of the Sherman Act when alleging a violation of Section Two.

    If you want to start your time with the court by making it clear that the court will have to spend its entire time babysitting you because you can’t be arsed to research law yourself, this is the way to write a complaint.

    This complaint looks like some poorly-prepared, poorly-supervised second-year associate banged it out in two hours.

  4. MaryK
    Feb 21, 2013 @ 10:19:06

    Speaking of Nicole Camden, did you find out whether the 3 part story is romance or erotic fiction?

  5. Jane
    Feb 21, 2013 @ 10:21:39

    @MaryK: It’s pretty much a mess. I ended up being really disappointed. I’ll review it on DA but it’s like S&S took a full length novel and randomly chopped it into three parts. I’m not sure if I had read it all together whether it would have flowed better, but it’s neither erotic fiction nor really romance. It’s like a mishmash of a bunch of ideas with no real direction. A suspense element is even tossed in toward the end.

  6. Sylvie
    Feb 21, 2013 @ 10:48:05

    Totally off topic, but I’m waiting patiently for Apple to be sued for tying with its iThings. To me it’s Microsoft redux, but no one seems as incensed.

  7. Tabs
    Feb 21, 2013 @ 10:55:31

    When I was in graduate school for physics, I knew a guy who left the program to go join the circus. He was a fully trained mime who had studied under Marcel Marceau in France.

  8. Janine
    Feb 21, 2013 @ 11:02:24

    In this AAR interview, author Kathleen Gilles Seidel once mentioned that she wrote a circus-set romance, but could not publish it:

    How interested are you in some of the vocations you’ve given your characters? Do you follow figure skating, country and rock music, soap operas, and beauty pageants?

    Very much, and yes. Although I didn’t start out to, I have written a series of books set in different aspects of popular culture, starting with the beauty pageant in Don’t Forget To Smile and ending with the circus in Dreamers, Poets, and Clowns.

    “Wait,” you cry, “I haven’t heard of that book.” Indeed you’ve not. I had always assumed that if I was interested in something, then a couple hundred thousand other American women would be too, but that assumption crashed and burned on the circus. Apparently circus books Do Not Sell and so I wasn’t able to get it published. It’s a shame. My mom really likes it.

    I still dream that someday she’ll self-publish it.

  9. Jackie Barbosa
    Feb 21, 2013 @ 11:20:54

    @Janine: Didn’t The Night Circus pretty well blow the idea that circus books can’t sell out the window?

  10. Janine
    Feb 21, 2013 @ 11:33:34

    @Jackie Barbosa: It must have, but Seidel isn’t writing romances anymore (the interview is from 2003, and I suspect her circus book was written in the 1990s) so it may be too late for her book to be published by a NY publisher.

  11. Laura Florand
    Feb 21, 2013 @ 11:57:21

    OK finally found it! I knew an author I liked had a circus story coming out: Marion Lennox, in April. Is Jayne going to review it? The RT Review says it’s reminiscent of Night Circus and Water for Elephants, which is pretty nice company to keep. And it’s an RT Top Pick. I’m really looking forward to it–Jayne’s reviews got me started on her, and I love her characters.

  12. Moriah Jovan
    Feb 21, 2013 @ 12:06:44

    @Janine:

    I had always assumed that if I was interested in something, then a couple hundred thousand other American women would be too, but that assumption crashed and burned on the circus

    Well, to be precise, she doesn’t know if her assumption is correct or not, because she wasn’t allowed to try.

    And it’s that “wasn’t allowed” part that always gets my back up. Thankfully, we are living in different times now…

  13. Janine
    Feb 21, 2013 @ 12:20:12

    @Moriah Jovan: Agreed. There’s really no way to know with certainty whether or not it would have sold. Given how good most of her other books are, it’s a shame that it wasn’t published.

  14. MaryK
    Feb 21, 2013 @ 12:39:04

    @Jane: Aww, that’s too bad. I’ve been waiting for her to publish something else ever since I read that first story.

  15. Moriah Jovan
    Feb 21, 2013 @ 12:51:41

    @Janine: Not to get on a philosophical rant (but I’m gonna anyway), it’s that “you’re not allowed to do that” mentality that really pissed me off and sent me on my self-pub quest. Who are YOU to tell me I CAN’T do something? (I’m on an anti-”can’t be done” kick today for some reason.) And it’s why I began to look at traditional publishing as a cult. All these writers so brainwashed as to think they CAN’T do something just because somebody tells them they can’t and threatens them with dire consequences of…what? Not publishing something they wouldn’t have published anyway?

    That hit a nerve, clearly.

  16. Estara
    Feb 21, 2013 @ 16:26:13

    @Laura Florand: Oooh lovely. Marion Lennox is practically an auto-buy among Harlequin authors for me. Thanks for the information.

  17. willaful
    Feb 21, 2013 @ 17:30:19

    Another circus romance — White Horses by Joan Wolf.

  18. Laura Florand
    Feb 21, 2013 @ 18:59:41

    Oh, if we’re collecting circus romances–why not? :)–let’s hear it for an old classic, Madeleine Brent’s Stranger at Wildings. I always loved Brent’s stories, growing up. Her characters did such fascinating things.

    @Estara: I really like Marion Lennox, too. Jayne got me hooked on her. :) I *love* the idea of a circus heroine, so I can’t wait.

  19. Anne V
    Feb 21, 2013 @ 19:04:46

    Annabel Joseph has a circus book – Cirque de Minuit…

  20. Wahoo Suze
    Feb 21, 2013 @ 19:14:50

    I love romance readers. What an awesome bunch of people, with such interesting taste in stories.

  21. Mzcue
    Feb 21, 2013 @ 23:32:57

    @Sarah Frantz:

    Mistaking “dominate” for “dominant” is bad enough in sloppy BDSM novels, but in a legal document? Good grief. Take the flogger to ‘em!

  22. Jayne
    Feb 22, 2013 @ 07:00:23

    @Laura Florand: I need to try Madeleine Brent. Everyone who mentions her books raves about them. Thanks for the info on the upcoming April Lennox book. Sunita and I will probably mudwrestle for it. ;)

  23. Janine
    Feb 22, 2013 @ 11:34:13

    @Jayne: I had the same thought about Brent. I really need to read her (him).

  24. Sunita
    Feb 22, 2013 @ 16:50:18

    @Jayne: We will both read it and then pistols at dawn! (I’ve just finished your Talisman Ring review, can you tell?)

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