Publishing News: Tech patent wars spill into the book world

B&N takes issue with Microsoft's patents, Congress held a SOPA hearing, and authors decry Amazon's Lending Library.

Here are a few stories that caught my eye this week in the publishing space.

Patent wars heat up as B&N’s position against Microsoft goes public

Barnes & Noble’s presentation and accompanying exhibits outlining its position against Microsoft’s patent licensing fees for Android devices were made public this week (see the lawsuit here and some background here). Groklaw summed up the situation succinctly, saying, “In effect, Barnes & Noble says Microsoft is doing what’s it’s done in the past against Netscape and Java, only now the target is Android and the weapon of choice is patents.” A later Groklaw post excerpted one of the letters Barnes & Noble gave to the Justice Department:

Simply put, Microsoft is attempting to monopolize the mobile operating systems market and suppress competition by Android and other open source operating systems by, inter alia, demanding oppressive licensing terms directed to the entirety of Android, asserting this dominant position over Android on the basis of patents covering only trivial design choices and entering into a horizontal offensive patent agreement with Nokia …

Instead of focusing on innovation and the development of new products for consumers, Microsoft has decided to invest its efforts into driving open source developers from the mobile operating systems market. Through the use of offensive licensing agreements and the demand for unreasonable licensing fees, Microsoft is hindering creativity in the mobile operating systems market … Through the use of oppressive licensing terms that amount to a veto power over a wide variety of innovative features in Android devices of all kinds, as well as its prohibitively expensive licensing fees, Microsoft is attempting to push open source software developers out of the market altogether.

The summary slide from the presentation highlights B&N’s main assertions of Microsoft’s anti-competitive offenses:

Slide from Barnes & Noble presentation for the Justice Department

Geekwire posted the entire presentation, and Groklaw has a nice presentation and analysis of the other five exhibits Barnes & Noble presented with the slides.

Anti-SOPA equals pro-pirate?

Congress was busy this week with the Stop Online Piracy Act (SOPA) hearing, in which Google boldly stood against, well, pretty much everyone else at the hearing. A post at Ars Technica reported that “Google’s lawyer was the only one of the six to object to the bill in a meaningful way,” and that “[t]his wasn’t a hearing designed to elicit complex thoughts about complex issues of free speech, censorship, and online piracy … the hearing was designed to shove the legislation forward and to brand companies who object as siding with ‘the pirates’.”

The controversial act (nicely explained here) looks to establish legislation to punish companies and websites that allow pirated content. Opponents of the act, including Google, Yahoo and Facebook, say it goes too far and would give the government too much power (Ars Technica outlines the major issues here). The Washington Post explains:

SOPA protects artists’ intellectual property, enabling them to pursue a profit — which, in the case of record labels and movie companies, cuts off consumers’ paths to free downloads and pushes them toward purchasing the work. But the types of content that would be prohibited under SOPA would also include amateur remix works, like YouTube covers of songs or mash-ups of movies. These works would be considered copyright violations, and not only could the creator of the work be legally vulnerable, but also could the host of the content.

The Washington Post also quoted Michael O’Leary, who represents the Motion Picture Association of America (which supports the Act), as saying, “Fundamentally, this is about jobs.” In a tongue-in-cheek post, Edward J. Black at HuffPo agreed the Act will create jobs … for lawyers, judicial employees, cyber security engineers, government, Internet monitors/censors, and pornographers. Senator Ron Wyden (D-OR) — who, as Ars Technica points out, “helped author the key Internet safe harbors that keep sites like Google, Yahoo, and eBay from being sued into oblivion for the actions of others” had a succinct, level-headed comment on the situation:

We took the opportunity to pass a law that said that neutral parties on the net are not liable for the actions of bad actors. So now, as we again debate web censorship, let’s ask ourselves: what next generation of innovations won’t be realized if we backtrack on that principal now? Yes, the Internet needs reasonable laws and bad actors need to be pursued, but the freedoms of billions of individual Internet users should not be sacrificed in the interest of easing that pursuit.

Authors now cry foul on Amazon’s Kindle Owner’s Lending Library

The Kindle Owner’s Lending Library took a hit this week from the Authors Guild. When Amazon launched its new lending service a couple weeks ago, publishers — including O’Reilly’s GM Joe Wikert — were the first to voice concerns. Now, the Authors Guild is arguing the program is a breach of contract. A post on the Guild’s site asks, “Are any of the books in Amazon’s new e-book subscription/lending program properly there?” The post purports that the Big Six refused to participate in Amazon’s program, but “[n]o matter. Amazon simply disregarded these publishers’ wishes, and enrolled many of their titles in the program anyway.”


The Authors Guild post also points out that the smaller publishing houses that agreed to participate in the Lending Library program might not have the right to:

While these publishers generally have the right to license e-book uses for many of their authors’ titles (just as most trade publishers do), our reading of the standard terms of these contracts is that they do not have the right to do so without the prior approval of the books’ authors.

The Guild concludes with instructions on how authors can get their books removed from the program and says:

Under most (perhaps all) publishing contracts, a license to Amazon’s Lending Library is outside the bounds of the publisher’s licensing authority. This isn’t a minor matter — in order to protect the author’s interests, all publishers should be asking permission before entering into such a bulk licensing agreement, and most would need to seek a contract amendment to do so.

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