Aug 23 2011
Tuesday midday links: lawsuits, lawsuits, lawsuits
Booklamp.org is up and running. Booklamp professes to be a Pandora for books. It does not have much content for romances. It looks to be publisher specific. Random House and Simon & Schuster have books and authors present but Penguin, HarperCollins, and Hachette do not. Harlequin also seems absent. Searching Nora Roberts pulls up four books. J.D. Robb does not exist in the database nor do authors like Nalini Singh, Larissa Ione, or Julia Quinn. When I searched Ballantine author Gaelen Foley, Booklamp helpfully suggested other Gaelen Foley books. Let’s just call Booklamp a work in progress.
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A Federal District Court judge in the United States District Court, Southern District of New York, handed down a ruling in the Capital Records, Inc. v. MP3 Tunes lawsuit. A number of music companies and artists had sued MP3 tunes for copyright infringement. They moved for summary judgment and while the judge found that MP3 tunes had infringed by refusing to comply with D M C A takedown notices, the ruling was a win for MP3 tunes and other cloud-based storage services.
MP3Tunes allows for users to upload their music into an online locker. They can also enter URLs or web addresses that contain music files and the MP3Tunes service called Sideload.com loads the music into the locker. MP3Tunes checks the files uploaded and only saves one file for every user, so long as the file is identical. MP3Tunes does this by checking the MD5 hash of the uploaded file. MD5 hash is a very long number assigned to one file. The music industry said that MP3Tunes was facilitating piracy by allowing users to upload music and to sideload music via a URL. The industry also wanted MP3Tunes to store a separate copy of each song for each user which would be more costly for MP3Tunes. (The industry wanted other stuff but I am condensing here).
The court said that so long as the files uploaded were identical, MP3Tunes and by extension any other cloud service would only need to keep one file and that one file could be served to any user who had uploaded the file.
How does that translate for books? It means that Amazon would only need to keep one file for its ebook to serve to every one of its readers who purchased it. Further, I think Amazon wouldn’t even need to require the readers to upload the file because the purchases are tracked by Amazon. This would be the same for Kobo, BN, and Google books.
The sideloading portion of the decision was interesting but seemed contrary to other rulings on Grokster and Napster and the like. The court said that sideloading via a URL is perfectly fine and that MP3Tunes was only responsible for removing content if a DMCA notice had been issued. The DMCA notice had to be specific citing the offending URL. A general DMCA notice pertaining to one artist or one record label was not sufficient.
For books, that would mean you could enter the URL of your purchases at AllRomanceeBooks, for example, and have it stored in your Amazon locker to read in the cloud. If Amazon developed an epub wrapper, complete with DRM, it could also allow you to send over your BN books.
DRM and books complicates things a bit. MP3s no longer have DRM and thus it is not possible for the seller to control the term of license on a song like it can for DRM’ed ebook. However, the court’s decision does not rest on DRM v. non DRM. It rests on the identical nature of the files. If the MD5 hash of the file uploaded by User A matches the MD5 has of the file uploaded by User B then the cloud server only needs to store one file to serve to both users, simultaneously even.
Apple has signed deals with the major labels and this allows it to provide you with a higher quality audio version of a song you may already own. Or, if Barnes and Noble were to sign such a deal with all the publishers, it could provide you a DRM’ed epub for every Kindle book you purchased. If publishers wanted to really hurt Amazon, that would be one step they could take.
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Texas Department of Transportation is suing Hachette, Barnes and Noble, and author, Christie Craig, for her use of the trademarked slogan ”Don’t Mess With Texas”. The Texas DOT maintains that it has won suits like this before and given that it is the motto that is trademarked, I can see it being successful in other cases. The question is whether this book title would cause consumer confusion regarding the “Don’t Mess With Texas” slogan. I wouldn’t doubt that Vegas would sue if some book was titled “What Goes On in Vegas, Stays in Vegas.” Trademarks are a different IP animal. The holder of the trademark has to sue to protect its mark or it can stand the chance of losing the right to the mark. Texas is arguing that the brand is being diluted or confused by Hachette’s usage.
Mutual of Omaha won a suit against an artist who was attempting to parody the slogans and names Mutual of Omaha had trademarked. MofO argued that the artist’s parody could create confusion and lead people to think that it was supporting nuclear holocaust. The Eight Circuit sided with MoO. Decision here.
I found this article about past attempts by Texas to prevent unauthorized use of the slogan. The slogan was developed in concert with Texas’ anti littering campaign and Texas has been dogged in its protection of the mark.
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PW notes that there are four new copycat lawsuits over the Agency pricing situation. The real fun will be if the States’ attorneys general (who all hate the Leegin decision) decide to file suit on behalf of each individual state. PW sugests that the case might be dismissed before discovery, but I think that is unlikely.
The filings so far include no proof of any collusion .
The filings don’t need proof of collusion to overcome a motion to dismiss. In a motion to dismiss (called a 12(b)(6) motion), the facts alleged are assumed true and all reasonable inferences from the alleged facts are read in a light most favorable to the non moving party (or the plaintiffs in this case). All the petitions need are allegations of collusion which Steve Job conveniently provided.
The fact that Apple brokered the simultaneous switch to the Agency model, and the Publisher Defendants agreed to standardize higher eBook prices, is amply demonstrated by a January 2010 interview in which Apple CEO Steve Jobs told Walt Mossberg of the Wall Street Journal that Amazon’s $9.99 pricing for eBooks was about to end:
Mossberg: Why should [a consumer] buy a book for $14.99 on your device when she can buy one for $9.99 from
Amazon or Barnes & Noble? Jobs: That won’t be the case.
Mossberg: You won’t be $14.99 or they won’t be $9.99?
Jobs: The prices will be the same . . . Publishers are actually withholding their books from Amazon because they’re not happy. (Emphasis added.)
From the original petition.
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Aug 23, 2011 @ 10:56:12
Yeah, I tried out BookLamp a bit ago, and it was a TOTAL bust for my favorite authors.
Aug 23, 2011 @ 11:04:04
I’m wondering if TX DOT has already lost the right to protect the mark, seeing as they allow its use on non-DOT souvenirs (sold all over TX) and by the US Navy? Plus, they’ve already lost at least one cease and desist case. Hope it gets the author a lot of sales though (and wondering who I can piss off and get sued by? What’s the motto of the National Trust?).
Aug 23, 2011 @ 11:07:26
@Isobel Carr Who do you think has a greater appetite for a suit? Hachette or Texas?
Aug 23, 2011 @ 11:09:18
Harlequin published an anthology of erotica called “What Happens in Vegas” a few years ago. I’d think that books such as that would enhance rather dilute the slogan however, as it suggests fun/illicit activity.
Aug 23, 2011 @ 11:20:15
Loved how the article by the Houston Press scratched out “Porn” and replaced it with “steamy romance.” Yeah, thanks for helping us out, Houston Press. Put us in “Hairballs” and criticize romance writers for writing about something as natural and wonderful as sex. Hey, at least Craig had them practicing safe sex. Score one for sexual responsibility in romance writing.
Aug 23, 2011 @ 11:32:24
Wow, so many lawsuits!
Re: Agency model lawsuit — why sue Amazon and BN? Apple started it, no?
Aug 23, 2011 @ 11:59:37
The holder of a trademark does NOT have to sue to protect it’s mark. In the first place, the title of a romance book and the Texas Department of Transportation are not in the same area of trade at all. In the second place, if they are really worried about trademark dilution, all that is really needed is to hand out a free license.
Reply
Aug 23, 2011 @ 12:35:13
Let’s see, the first (of the ebook pricing) lawsuit originates out of Seattle. Coincidence? I think not.
I read the 45 page Hagens filing and this is what I came away with:
So basically, to gain market dominance with their proprietary device “the kindle,” Amazon devalued the content for said device. Publishers should be suing Amazon.
I love the so-called “pro-consumer” stance. Amazon sold books for more that $9.99 even before agency terms came about. They were willing to take the loss on eBooks to sell the kindle.
Just take a look at their Lady Gaga $.99 promotion:
Here’s my favorite bit from the filing:
I wonder what Amazon suggests that publishers do in the future–oh, wait… Amazon has entered the publishing business.
Aug 23, 2011 @ 13:12:48
I find it bizarre that the book was named after an anti-littering slogan. Seriously?
Aug 23, 2011 @ 14:27:33
Thanks for posting this! I have been waiting forever for Christie Craig’s new book to come out. I had it pre-order as an ebook which comes out on September 1st. After reading this I canceled my order and sent my hubby down to our local B&N to pick up a copy seeing it’s released today in paperback. He sure got some looks from folks because he is a guy buying a romance book and said it was kind of awkward but I now have my book. :D
I hope Texas let’s this go. It’s a silly way to spend the people’s tax dollars. Christie Craig is a wonderful writer who books make me laugh and I fully support her and any romance author who’d be targeted like this.
Aug 23, 2011 @ 15:14:12
@adele: I take it you’re pro-agency/price fixing?
Looks like publishers have finally gone too far with the cutesy, pop culture titles. And, you know, if I saw that book in a Texas bookstore, I probably would think, “She wrote a book for a Texas governmental department?”
Aug 23, 2011 @ 15:25:05
@Liz Talley: I don’t know. Aside from the “bodice-ripper” comment, I read that article as poking fun at TxDOT for getting all uptight about sex scenes and for exaggerating their “graphic” content. But maybe I’m reading too much into it.
Aug 23, 2011 @ 15:43:28
@adele: Hagens Berman is a law firm that is looking for a big pay out in a class action case. Here’s their web site: http://www.hbsslaw.com/cases-and-investigations/ As you can see they have a lot of irons in the fire besides the ebook case.
ETA, if they win then the lead plaintiff also do pretty well.
I would also think that Amazon’s legal department would be far too intelligent to have a finger in that pie considering the ellegations involved.
Aug 23, 2011 @ 16:19:18
Maybe so, Mary K. I don’t think the blogger’s tone was necessarily antagonistic toward romance…just didn’t care for the title. I’m probably way too prickly about it because I’ve had too many personal friends confront me about what I write being porn for women, so maybe it was knee-jerk reactionary.
Aug 23, 2011 @ 17:16:44
@Jill Myles: Do people outside of Texas know that “Don’t Mess With Texas” is an anti-littering slogan? I remember the TV ads in the 1980s and 1990s (it was a tremendously successful ad campaign), but outside of Texas, most people are surprised when I tell them where the slogan originated.
Aug 23, 2011 @ 18:00:48
@Stacia:
Yeah, I don’t know. I’ve been in TX almost all my life, so when I hear people throwing it around, I’m all “You DO know what that’s in reference to, right? Right?”
Aug 23, 2011 @ 18:06:31
@Jill Myles:
I’ve never lived in Texas. I think vaguely, once upon a time, I knew it was an anti-littering slogan, but I pretty much only know it as the entire state’s rallying cry in honor of its self-proclaimed bad-assedness.
Aug 23, 2011 @ 19:50:42
I had NO idea Don’t Mess with Texas was an anti littering campaign. In my head it seems somehow related to Chuck Norris and bar fights.
Aug 23, 2011 @ 20:06:05
@Jill Myles: That’s me too. The comments above this one seem to reflect what I’ve seen out of the state: it’s become a part of pop culture but the original meaning is lost.
Aug 23, 2011 @ 20:30:28
I really do not see why they worry about stupid stuff like the slogan. Should be worried about the jobs leaving Dell 3MM all the people being laid off.If the slogan was so good Austin streets would not look like a big garbage can.What a burger bags walmart bags hanging from the ceder trees.The slogans so old does does not work anyways other then if you live in Barton Springd area.So why waste money texas does not have and help bring companys into the state.So many big bussiness have left Texas in the last couple years .Stop wasting money after all the this time most people think when hearing it oh yea texas.
Aug 23, 2011 @ 21:30:39
@Stacia: It got Xeroxed and Kleenexed.
Aug 23, 2011 @ 22:31:05
I’m from Houston and tend to think of ‘Don’t Mess With Texas’ similar to how I think of ‘Houston we’ve got a problem.’ Both have gone beyond their origins and been used for comic effect often enough that I now tend to associate them more with the latter than with the original intent. The Texas phrase thankfully not as over used as the Houston phrase.
Aug 23, 2011 @ 22:58:32
@Jill Myles: I stopped thinking of it seriously as an anti-litter slogan when Matthew McConaughey started popping up in PSA ads for them.
Aug 24, 2011 @ 13:42:08
I never knew ‘Don’t Mess with Texas’ was an anti-littering campaign slogan either. I’ve always just associated it with Texas in general. But I’m from Wisconsin, where I still need to explain to quite a few people (around the country) that there is a state between Illinois and Canada :P
Mar 05, 2012 @ 15:49:18
Hi all, BookLamp employee here. We’ve updated with a bunch more titles. Sorry you couldn’t find them before. Here’s hoping we’ve got your favorites now. :)