Lawsuit

Much has happened this tumultuous day, with several massive lawsuits being filed and multiple settlements announced. So much has happened that we don’t know if we’re coming or going.

But the story isn’t over with. Two of the proponents of agency pricing, Random House and Smashwords, were completely untouched by the lawsuit. No one knows how RH plans to respond to the shift in the market, but Smashwords has resolved to continue with their policy, according to Mark Coker, the CEO of Smashwords.

He had already decided on a new policy several weeks ago, and he’d iterated it in a recent blog post. Here’s what he told me today:

We intend to vigorously defend agency as a superior pricing model that’s in the best long term interests of authors, readers, retailers and publishers.  As my data demonstrates, ebook prices are dropping.  If a publisher prices their book too high, let the marketplace punish that author.  Our 40,000 authors and publishers at Smashwords price their books just barely over $3.00, and they collectively publish nearly 15,000 ebooks priced at FREE.  Agency has been a godsend to our authors and publishers, and it forces our retailers to compete on customer experience rather than the depth of their balance sheets.

Last month HarperCollins filed a lawsuit against digital publisher Open Road after they announced plans to release an eBook edition of Julie of the Wolves claiming that they have the rights to the eBook.

Open Road signed a deal with Jean Craighead George, but HarperCollins claims a 1971 contract with George makes it theirs.

It looks like the startup founded by the former CEO of HarperCollins might have stepped on someone’s toes. Lawyers for HarperCollins filed a lawsuit late last week, and they accused OpenRoad of publishing an eBook that HC had the rights to.

OpenRoad had recently signed a deal with Jean Craighead George. They were planning to release an eBook version of the award-winning children’s book Julie of the Wolves. Unfortunately for them, it looks  like George had already signed away the rights.

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Earlier this week the California and Seattle based law firm Hagens Berman, who was the first to file suit against the Price Fix 6, has been named the lead counsel in the action. After HB filed suite this summer, a total of 30 suits were also filed in CA and NY, and earlier this month judges in the southern district of New York ordered the case be combined into a single lawsuit which represented all the plantiffs. Cohen Milstein, another law firm involved in the suit, was chosen by U.S. District Judge Denise Cote to help HB pursue the case.

The judge has also told Hagens Berman and the other attorneys that they are required to file an amended complaint by Jan. 20, 2012. The judge wants to know exactly how Hagens Berman intends to consolidate the case. The lawsuit seeks damages for the purchase of eBooks, an injunction against using the Agency eBook Model, as well as forfeiture of the profits received by the defendants as a result of their anti-competitive conduct.

There’s no word yet on who will be called as a witness or what proof the plaintiffs have, but earlier this week a couple of the law firms indicated that they have inside sources willing to testify.

image by afagen

The long-running and doomed lawsuit Viacom v. Youtube was ended yesterday when the National Music Publishers Association settled with Google.

This was a copyright infringement lawsuit, and it’s a head-scratcher. A common-sense reading of the DMCA would indicate that Youtube didn’t have legal liability for the content that users uploaded (so long as Youtube met certain conditions). That is in fact why Youtube eventually won the suit.

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