Feb 21 2013
Thursday News: I’m running away to join the circus (and the indie bookstores who are suing Amazon should come with me)
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.
- The petition refers to DRM as DRMs.
- It alleges that iTunes moved away from DRM because of lawsuits.
- 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.
- “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.
- “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″
- “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.
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