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.
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.
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.
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.