Senators Renew Push for Shield Law; Say Bill Would Codify Justice Department’s New Protections for Journalists
The Senate Judiciary Committee is scheduled this week to consider legislation that would turn into law new Department of Justice guidelines putting greater restrictions on how the government collects journalists’ private information while investigating leaks.
The shield law legislation calls for courts to “apply a balancing test before compelling disclosure” of sources and other information from journalists. It also requires that courts arbitrate government media records requests and that journalists be notified within 90 days of their records being reviewed by the DOJ.
The Authors Guild, which has long backed the enactment of such a law, is part of a coalition of media organizations calling on Congress to use this as an opportunity to strengthen the First Amendment protection of press freedom.
Earlier this month, the DOJ drafted a new policy for investigating journalists in response to outrage over revelations that it secretly collected the phone records of Associated Press reporters and examined emails of Fox News reporter James Rosen in a search for the source of government leaks.
Judge in Apple Case Cites Publishers’ “Frequently Coordinated” Efforts to Upend Amazon’s $9.99 Ebook Pricing
In her ruling against Apple today, Judge Denise Cote cites witness testimony as well as documentary evidence including emails and other records of communication considered during the three-week price-fixing trial. She says circumstantial evidence also “compellingly” supports the idea that Apple gave publishers the means to pull off a pricing conspiracy they couldn’t accomplish on their own.
Here’s the sequence of events as detailed in Cote’s decision:
Late 2008-through 2009: Major publishers who would later be named as defendants along with Apple tried “frequently coordinated their efforts” to pressure Amazon to raise its $9.99 price point for digital books.
U.S. District Judge Denise Cote has ruled against Apple in the Justice Department’s ebook price-fixing case, saying the tech company coordinated a scheme involving five major publishers that were looking for a way to challenge Amazon’s ebook pricing strategy. In a decision issued today, Cote said:
“The plaintiffs have shown that the publisher defendants conspired with each other to eliminate retail price competition in order to raise e-book prices, and that Apple played a central role in facilitating and executing that conspiracy. Without Apple’s orchestration of this conspiracy, it would not have succeeded as it did in the spring of 2010.”
Apple released a statement saying it plans to appeal the decision.
“Apple did not conspire to fix e-book pricing,” Apple spokesman Tom Neumayr said. “When we introduced the iBookstore in 2010, we gave customers more choice, injecting much needed innovation and competition into the market, breaking Amazon’s monopolistic grip on the publishing industry. We’ve done nothing wrong.”
Cote also called for a trial on damages, noting that the conspiracy caused ebook prices to rise, resulting in some consumers paying more, buying a title other than the one they wanted or forgoing a purchase altogether.
The publishers named as defendants settled with the Justice Department long before the case went to court.
Having gained a dominant share of the market through deep price cutting, Amazon has begun reducing the amount it discounts some scholarly and small press titles, upsetting publishers and authors who worry the increased prices will hurt sales, David Streitfeld wrote in the New York Times on July 4th.
The piece pointed out that with Borders gone, Barnes & Noble shrinking and many independents shuttered, consumers often have no choice but to buy from Amazon. Stephen Blake Mettee, chairman of the board of the Independent Book Publishers Association, was quoted as saying that Amazon is following a tried and true strategy.
“You lower your prices until the competition is out of the picture, and then you raise your prices and get your money back,” he said.
An Amazon spokesperson said the company is actually lowering prices, but declined to comment on specific examples of titles for which the discounts have been reduced. The evidence of Amazon’s price increases, the article acknowledges, is “anecdotal and fragmentary,” but it cites several examples and a marketer for university and independent presses to make the case.
Streitfeld followed his article with a blog post about the subject in which he looked back to the days when “bookselling was a local activity” and major cities would have multiple independents. He also reminded us what’s a stake when we talk about a diverse literary marketplace.
The hippie, black and women’s movements of the 1960s would not have been so successful in challenging authority without the bookstores, which made their ideas widely available and sympathetic in a way that television, for instance, did not.
Noting that most publishers were reluctant to speak with him for the story, Streitfeld quoted Melville House’s Dennis Loy Johnson at length.
Class certification is premature in the Google mass books digitization case, says a federal appellate court. Fair use has to be decided first.
In the latest twist in the litigations over Google’s library-scanning project, The Second Circuit Court of Appeals yesterday vacated Judge Denny Chin’s class certification ruling* of last May in Authors Guild v. Google. The appellate court said that resolution of the fair use issues needed to come first since it would help determine whether “the commonality of plaintiffs’ injuries, the typicality of their claims, and the predominance of common questions of law or fact” merited treating the lawsuit as a class action.
In other words, if Google’s fair use defense requires a book-by-book analysis, then this would weigh against class certification. If a fair use ruling can be made more broadly, then judicial economy is more likely to weigh on the side of class certification.
Authors’ Orphan Works Reply: The Libraries and Google Have No Right to “Roll the Dice with the World’s Literary Property”
Authors’ groups from Australia, Canada, Norway, Sweden, the UK and the US (including the Authors Guild and the Authors League Fund) and eleven individual authors filed their reply brief in the HathiTrust mass book digitization and orphan works case late on Friday. It’s the final brief to be filed in the appeal of Judge Harold Baer’s ruling last October that questions regarding HathiTrust’s “orphan works” program were moot and that HathiTrust’s other uses of millions of copyrighted books were protected by copyright law’s fair use doctrine.
A summary of the litigation is here. Here’s a six-sentence version for the time pressed: Several university libraries worked with Google to digitize millions of copyright-protected library books. The universities then placed these digital books in an online repository known as HathiTrust and permitted Google to keep a copy of each of the digital books it created. Although HathiTrust does not generally make those ebooks available, in the summer of 2011 it announced an “orphan works” program that would have allowed the downloading of books that the universities deemed “orphans” (books for which the authors cannot be found after diligent search). Authors and authors’ groups sued to stop the program and quickly discovered that many of the so-called orphans were readily findable. HathiTrust suspended the program, promising to restart it after further review. Last October, Judge Baer ruled as above; the plaintiffs appealed the ruling.
Week two in the Apple fix-pricing trial began Monday with HarperCollins CEO Brian Murray and Macmillan CEO John Sargent testifying that they weren’t forced by Apple to revise their terms with Amazon–as the Justice Department’s claims–but simply engaged in tough negotiations with both e-tailers to get the best possible deal.
While all five major publishers originally named in the suit have settled with the DOJ, the government’s case hinges largely on their actions in 2010, when Apple allegedly acted as “ringmaster” compelling them to adopt the agency model.
Monday’s witnesses also included a Google executive who finished testimony that began last week, when the Apple’s lawyer aggressively grilled him about his contention that publishers had told him Apple forced them to adopt a model that would result in higher prices. CNET reported:
Apple started to pick away at the Department of Justice’s claim that the tech giant conspired to inflate e-book prices by repeatedly and rapidly firing questions at a key Google witness.
The tactic paid off for lead Apple attorney Orin Snyder, who began to wear down on Thomas Turvey, director of strategic relationships for Google. Turvey appeared increasingly frazzled and frustrated as the afternoon went on.
Asked to name a publisher who told him about Apple’s demands, Turvey could not.