Class action lawyers had earlier demanded that Isaacson provide evidence, based on his interviews with Steve Jobs, about why Jobs asked publishers to sell books on Apple’s iPad device. Isaacson refused to hand over his notes and invoked a New York law that allows journalists to shield their sources in many situations.

The lawyers, who want Apple to pay for allegedly fixing book prices, had subpoenaed Isaacson and said the reporters’ shield did not apply. Last week, however, court documents show the parties agreed to drop Isaacson from the case.

The Isaacson dispute comes at a time when Apple’s antitrust showdown with the Department of Justice and class action lawyers is coming to a head. While the five publishers who were also named as defendants decided to settle, Apple is rejecting the accusations that it acted as the hub for an illegal conspiracy to raise book prices and thwart Amazon. Meanwhile, Amazon executives are poised to testify against Apple.

Even though the Isaacson biography is no longer part of the case, a court transcript shows Steve Jobs will remain a central figure. In response to a question about who decided to sign contracts with book publishers, Apple executive Keith Moerer said, “Ultimately, I would say it was — Steve. But working closely with — with Eddy, Mr. Cue.”

Meanwhile, other recently filed court documents identify one recipient of a highly publicized Jobs email about Amazon and pricing — the recipient was James Murdoch, a senior executive at News Corp, parent company of HarperCollins. The other recipient(s) are still redacted. You can see the email below:

Steve Jobs Emails by

Businesses or individuals that communicate regularly about their industries, local happenings, or public policy – or that take any sort of stand on any of these matters – can find themselves facing defamation lawsuits that are intended simply to intimidate and silence a voice. Such suits are common enough to have a moniker: “SLAPP” suits, or Strategic Lawsuits Against Public Participation.

Easy to file, and easier still to threaten, it’s difficult to get even the most frivolous case dismissed without incurring serious time, cost and stress.  And as each side bears its own costs in most civil litigation in the U.S., a deep-pocketed opponent can use the threat of financial ruin to get a less-well-heeled opponent to fold in the face of even a completely meritless defamation case. It’s time that the Federal government join states in taking action to protect individuals and businesses from this unnecessary threat.

A clear cut case

Veteran tech blogger Lauren Weinstein describes this risk well in a recent blog post, in which he calls what the government of France is doing “extortion,” and warns of the long-term risk of Google acceding to such demands that it pay for the simple act of linking and excerpting content:

“There is little evidence to suggest that ‘paying off’ a party making unreasonable demands will do much more than quiet them for the moment, and they’ll almost inevitably be back for more. And more. And more. Even worse, caving in such situations signals other parties that you may be susceptible to their making the same (or even more outrageous) demands, and this mindset can easily spread from attacking deep-pocketed firms to decimating much smaller companies, organizations, or even individuals.”

As my colleague Jeff Roberts noted in his post on the Google settlement, the French originally wanted the company to pay as much as $100 million, and wanted almost all of that to go into a fund that publishers could use for their own purposes, rather than into ad buying or other joint ventures. And he also noted that with the latest deal — which comes on the heels of a similar settlement with Belgium — Google is sending a very obvious message to other countries such as Germany that it is prepared to pay.

Google’s tactics set a dangerous precedent

This may make sense for Google, since it is trying to avoid as much litigation as possible, and wants to be on good terms with European countries (where it has already run into multiple roadblocks and barriers around services like Street View and privacy concerns). But I think Weinstein is right when he argues that this is only going to encourage countries like Germany — and plenty of others as well — to assume that if they push Google on the subject of linking, they will get cash.

Google wants these payments to be seen as a helping hand to publishers, which is why the fund is described as “supporting digital publishing initiatives,” and why it puts so much emphasis on the strategic partnership angle. But regardless of the picture it is trying to paint, the settlement is being described by many as a “pay for links” deal, and that perception is dangerous. As Weinstein puts it:

“France’s complaints regarding Google related to activities that are absolutely part and parcel of the fundamental and fully expected nature of the open Internet when dealing with publicly accessible Web sites [and its] success at obtaining financial and other concessions from Google associated with ordinary search and linking activities sends a loud, clear, and potentially disastrous message around the planet, a message that could doom the open Internet and Web that we’ve worked so long and hard to create.”

In other words, this issue is much bigger than just Google. While it may serve Google’s purposes to settle with France and Belgium, and perhaps other countries as well, all that does is encourage other governments and companies to see payment for links as an appropriate strategy. How long until U.S. newspapers and publishers start to argue the same thing? What about other companies? Director Harvey Weinstein (no relation to Lauren) said in a recent interview that the U.S. should have legislation to make this a reality — and Google is helping that kind of thinking gain momentum.

It’s cruelly ironic that the company spent so long arguing (correctly) that excerpts of books were fair use in its long-running legal battle with book publishers and authors — a battle in which at least one court has agreed with the company — and now here it is paying newspaper publishers for what is fundamentally the same practice. It’s a short-sighted appeasement strategy, and we could all be the worse for it.

Post and thumbnail images courtesy of Shutterstock / Alexander Santander and Flickr user Affiliate

There are elements of the Hathi Trust decision that make it different from the issues raised by the Google case, since it involves universities rather than a corporate entity, but the bottom line is that a federal court has decided scanning of books for search purposes is not an infringement of copyright — or rather that this activity is covered under the principle of “fair use,” and therefore should be allowed to continue. And in my opinion (and that of many others) the court was right to do so.

Some authors and publishers clearly don’t like the concept of fair use as it applies to books, because they believe it infringes on their rights as creators and owners of intellectual property — that is, the right to control whatever happens to their work, in any context. But the court reiterated that fair use exists for a crucial reason: namely, to allow others to transform and re-use parts of copyrighted works for artistic or other socially-beneficial purposes. And whether the Guild likes it or not, scanning books so that they can be indexed and searched clearly falls within that description.

The court accepted the fair-use case without a trial

One sign of how clearly the court believes this is that Judge Harold Baer’s decision was a summary judgement, meaning he didn’t think there was any point in even going to trial to argue the details of the case. As a post at the Copyright Librarian points out, “winning on summary judgment means the court agrees your arguments are a slam-dunk.” In his decision (which is embedded in full below), the judge says:

“Although I recognize that the facts here may on some levels be without precedent, I am convinced that they fall safely within the protection of fair use… I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ MDP and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts.”

The parts of the Hathi Trust case that make it distinct from Google’s battle with the Authors Guild have to do with the purposes for which the books were being scanned. For example, Judge Baer found that protecting old works from physical deterioration by scanning them was a “transformative use” (one of the four factors the courts take into account when deciding whether something should qualify as fair use), and that making digital books available for the use of visually impaired and other handicapped users was also an important element of the program.

Those kinds of arguments likely wouldn’t hold as much weight for Google itself, except as they apply to scholarly works that are provided to universities and projects like the Hathi Trust. A big part of the Authors Guild case rests on the fact that Google is a corporation with a profit motive, and therefore shouldn’t be allowed to scan copyrighted books without permission, even if its index makes them easier for buyers to find and purchase (Google also shows excerpts or “snippets” for all of the books that it scans, while the Hathi library only shows excerpts for public-domain books).

Indexing books for search is clearly fair use

But even here, the Hathi Trust case provides a substantial amount of ammunition for Google’s defence, because Judge Baer ruled that scanning books for the purpose of indexing them and making them searchable was an important transformative use — something that has also been found in other similar copyright-infringement cases against Google (such as the Perfect 10 lawsuit involving the use of thumbnail images). And that transformative use, he suggested, outweighs other factors such as the potential impact on the commercial market for the works in question.

Quoting from a previous court decision, Judge Baer said: “A copyright holder cannot pre-empt a transformative market.” And he dismissed the Authors Guild argument that scanning and indexing a book doesn’t qualify as a transformative use because it copies the entire book exactly, rather than making use of a part or adding something to the original work:

“The use to which the works in the HDL are put is transformative because the copies serve an entirely different purpose than the original works: the purpose is superior search capabilities rather than actual access to copyrighted material… Plaintiffs’ argument that the use is not transformative merely because defendants have not added anything ‘new’ misses the point.”

In the end, Judge Baer said that his decision was determined by the original goal of copyright law, which is to promote research and knowledge. As he put it: “The ultimate focus is the goal of copyright itself [and] whether ‘promoting the Progress of Science and useful Arts would be better served by allowing the use than by preventing it.’” His ruling makes it clear that the Hathi Trust project met that test, and based on his arguments there is every reason to believe that Google could win its case on similar grounds — and that would be in everyone’s best interests, as much as the Authors Guild would like to believe otherwise.

Post and thumbnail images courtesy of Flickr users Marcus Hansson and Marya

As my colleague Jeff Roberts has reported, this case was launched by Apple against Samsung last year, based on what Apple said was Samsung’s wilful infringement of software-related “utility” patents and four design-related patents it holds for the iPhone and iPad. According to Apple, the company’s smartphones — including the Nexus S, Epic 4G and Galaxy S 4G — copied elements of the design and functionality of Apple’s iPhone models, and the Samsung Galaxy Tab copied design and functional aspects of the iPad. In its statement of claim, which contained drawings that jurors relied on to decide the case, Apple said:

“Rather than innovate and develop its own technology and a unique Samsung style for its smart phone products and computer tablets, Samsung chose to copy Apple’s technology, user interface and innovative style in these infringing products.”

Did Apple really suffer because of another phone’s shape?

From a legal point of view, there appear to be a number of questionable factors involved in the jurors’ decision in this case, at least according to Groklaw, including a debate over whether the jury actually understood the specifics of what they were being asked to do, and whether they ignored certain aspects of the case in their desire to penalize Samsung. That could lead to the case being successfully appealed, but even if it isn’t, or if the appeal fails, the Apple-Samsung decision adds even more weight to the argument that software and design patents are evil and that the entire patent process is badly flawed — if not broken.

As part of the case, Apple obviously argued that it suffered irreparable harm from Samsung’s alleged copying of its design and functionality. But has it really suffered competitively? It’s hard to see how, considering the company is the world’s most valuable publicly-traded entity, with a market value of over $600 billion, and its mobile products are the market leaders in almost every category. How much more successful could it possibly be? And now, the legal ruling gives it even greater power to beat up on Google and Android — is that really a win for the technology industry or for society as a whole? It’s difficult to see how (and let’s not forget that Apple doesn’t need software patents to protect it from knock-offs — it has trademarks, trade dress and a series of other legal tools that will do that too).

Defenders of the case, and of patent laws in general, would likely argue that it doesn’t matter how large or successful Apple is: the point is that Samsung did something wrong. But what exactly do we mean by this statement? Two of the design patents involved in the case describe the way in which the iPhone is rounded at the corners and flat on the top, and another refers to the way that icons appear on the screen. Among the utility patents involved are those related to the “bounce back” or “rubber band” feature in some of Apple’s apps — in which the screen rebounds after the user pulls it in one direction or another — and to the “pinch to zoom” functionality used for images.

One designer said that the pinch-too-zoom gesture has become so ubiquitous for mobile devices and apps of all kinds that it is like claiming ownership over the idea of a circular steering wheel. Would we be better off if one company controlled the rights to the steering wheel and could charge huge sums to all manufacturers for using that design element? Probably not. But Apple could now do this with pinch-to-zoom, as well as other design and utility features, giving it an even bigger lock on the mobile device business than it already has — despite the fact that there is evidence that similar gestures existed before Apple patented them.

Update: Nilay Patel at The Verge notes that none of the patents in the Apple-Samsung case specifically refers to the pinch-to-zoom process, although several cover related multi-touch elements of the interface and one covers the tap-to-zoom gesture.

Software patents are nuclear weapons, not defences

Even if you accept that Apple did something unique and revolutionary with the zoom feature that deserves to be protected by the full force of the law, should it have the same rights to a series of icons that are lined up in a specific way on a mobile device? Or to the fact that its device has a rounded screen, or that a window which pops up on top of another window fades away automatically over time? Or the fact that one of its iPhone icons happens to look like a gear, and another looks like a pad of paper? These are the kinds of things software and design patents can refer to.

The fact that software patents can apply to such obvious-looking or even trivial applications of design and usability is why some have described them as evil, and “a cancer” on the economy and society in general. Others have warned for several years about the coming of a software patent “apocalypse” created by multibillion-dollar technology giants accumulating software patents. And in the end, these cases do little to promote any kind of useful innovation — instead, they just tie up the courts and give some companies a nuclear arsenal they can use to attack competitors.

Even some judges — such as the one who recently ended Apple’s patent lawsuit against Google-owned Motorola — have questioned whether certain industries that already experience plenty of innovation (such as the mobile phone business) need to be protected by patents at all, including software and design patents. And research by Harvard’s Berkman Center for Internet and Society has shown that software patents have provided little or no net social benefit over the past decade, despite billions in lawsuits and various legal victories.

In the end, the important question isn’t whether Apple was right to sue Samsung, or whether the Korean manufacturer directly copied elements of Apple’s design for its phones — the question should be what is gained by allowing companies to launch multibillion-dollar cases involving the shape of icons or the swiping motion that users employ to switch pages.

Post and thumbnail images courtesy of Flickr user Stefan

Last week, attorney Bob Kohn and the Authors Guild sought permission to act as “friends of the court” in the proposed settlement and filed amicus briefs. We have not yet seen a filing from Judge Cote granting their requests, but both parties are listed as “amicus” on the docket report, along with Barnes & Noble and the American Booksellers Association. However, the DOJ does not respond to Kohn or the Authors Guild in its response.

The DOJ shoots down the argument that ebooks are different from print books but doesn’t elaborate on why they are the same (and doesn’t respond to the criticism that it has failed to take interrelated markets, like those for e-readers, into account). Rather, it says, “Railroads, publishers, lawyers, construction engineers, health care providers, and oil companies are just some of the voices that have raised cries against ‘ruinous competition’ over the decades,” and publishers should not be granted special treatment.

Response to Apple

Last week, Apple argued that the DOJ’s proposed settlement, which it has not joined, affects its interests by forcing it to tear up existing contracts. As such, Apple says it’s entitled to a trial before the settlement is approved. The DOJ says Apple “is not entitled to preclude the United States and Apple’s co-defendants from obtaining the immediate benefits of their settlements, as it is well established that the United States ‘need not prove its underlying allegations in a Tunney Act proceeding.’” (The Tunney Act relates to anti-trust proceedings).

The DOJ claims that “in reality, what troubles Apple is that the decree returns pricing discretion not just to Apple, but also to its retail competitors.”

Response to Penguin

Last week, Penguin argued that the DOJ has not proven that ebook prices across the board rose under agency pricing. Penguin, which along with Macmillan is holding out against the settlement, also provided evidence showing that even prior to agency, Amazon priced many of its new titles above $9.99.

The DOJ does not respond to this specific point, but rather presents charts (chart 1-PDF, chart 2-PDF) showing that “Penguin did indeed raise its prices as soon as it gained power to do so. “In four weeks spanning the time when Penguin took retail pricing power from Amazon, the average price for a Penguin e-book sold through Amazon increased 17 percent, and the average price for a Penguin ‘new release’ e-book sold through Amazon increased 21 percent.” Here are the DOJ’s charts (1, 2) and accompanying methodology.

Penguin had argued that the DOJ should turn over all of its research on ebook pricing, since that research is apparently the basis for its conclusion that ebook prices rose across the board under agency pricing. The DOJ refuses, citing case law: “There is simply no basis for Penguin’s assertion that the United States must produce internal economic analyses to support its settlement.”

Response to Macmillan

Macmillan echoed Penguin’s demand for the DOJ’s research on ebook pricing and also asked the DOJ to show, as required by antitrust law, that the settlement would not result in Amazon gaining a monopoly. The DOJ responds by saying that there is no evidence that the settlement would result in Amazon gaining a monopoly because of “competition from established companies such as B&N, Google, Apple, and Sony.”

The DOJ says “the recently announced investment by Microsoft in B&N’s e-book business, and Sony’s release of a new e-reader, do not reflect any reluctance on the part of sophisticated companies to expand their sales of e-books.”

Response to the ABA and Barnes & Noble

In their amicus brief, the booksellers argued that the number of public comments against the proposed settlement vastly outweighed the number of comments in favor of the settlement. The DOJ responds that “it is not unprecedented for parties to oppose a settlement because they have a stake in an anticompetitive status quo,” and claims “the majority of the comments received opposing the decree did not come from those seeking to represent the public interest, but rather from those that benefited from the conspiracy and that have a vested interest in maintaining the status quo.”

To recap, Twitter suspended Adams’ account several days ago because he posted the email address of an NBC executive as part of a stream of tweets criticizing the broadcast network and its Olympics coverage. According to Twitter, doing so was a breach of its “trust and safety” guidelines because the address was considered to be private (even though it was the executive’s work address). After widespread criticism of Twitter’s decision, Adams’ account was eventually reinstated on Tuesday, and the company’s general counsel Alex MacGillivray later wrote a blog post about the incident, in which he described what happened and apologized for how Twitter handled it.

Twitter doesn’t want to be seen as a publisher

As Matt Buchanan at BuzzFeed noted, however, it’s interesting to look at what Twitter apologized for and what it didn’t: the company didn’t apologize for suspending Adams’ account in the first place, despite the fact that the email address doesn’t really meet most tests of the term “private.” What MacGillivray apologized for was that a Twitter staffer — a member of the media team working with NBC on the official Olympics hub that Twitter runs in partnership with the broadcaster — was the one who alerted the network to the offending tweet, and instructed the company in how to file a complaint and have the account suspended.

This is important because it means that Twitter itself detected the offensive content and took action, rather than waiting for a user to report the message through the usual channels, and MacGillivray’s post goes to great lengths to make it clear that the company does not do this kind of thing on a regular basis, and will never (or should never) do so, saying:

“The Trust and Safety team does not actively monitor users’ content… we do not proactively report or remove content on behalf of other users no matter who they are… we should not and cannot be in the business of proactively monitoring and flagging content, no matter who the user is.”

MacGillivray says that the company doesn’t want to do this because it “undermines the trust that our users have in us” — and there’s no doubt that what Twitter did brings up all kinds of questions about how much of what the network does in such cases will be determined by its corporate partnerships with giant entities like NBC, rather than its commitment to being a distributor of real-time information. That’s a real issue for the company in the future, as I tried to outline in a recent post.

But in addition to all of that, proactively monitoring content and removing it also raises some fundamental issues around Twitter’s potential liability for such behavior (which probably helps explain why the company had its general counsel respond about the Adams case instead of a PR person or even CEO Dick Costolo). To the extent that Twitter is manually curating and filtering content that flows through the network — and possibly flagging offensive messages for corporate partners — it is acting as a publisher rather than just a distributor, and therefore it could be on the hook in a legal sense.

Publishers are treated differently than networks

In the United States, there are laws that protect internet providers of various kinds (what the U.S. Communications Decency Act calls “interactive computer services”) from defamation lawsuits and other forms of legal action based on comments or message posted by third parties. That’s because these kinds of services are defined as “distributors” or carriers of information — much like a phone company — and the idea is that a carrier can’t possibly read or listen to every message and check it for potentially offensive or illegal content.

If the company is filtering and selecting messages, however, and possibly letting certain parties know when a legally questionable one shows up, that is much more like what publishers do — and in many jurisdictions, publishers like newspapers are held to a different standard. Twitter has already been the subject of at least one lawsuit based on that principle: in Australia, a TV personality sued the network earlier this year for publishing allegedly defamatory tweets about her, and at least one lawyer commenting on the case made a direct comparison between what Twitter does and what a newspaper does, saying:

There’s not a lot of difference conceptually between Twitter or other internet publishing and an airmail copy of a newspaper; it’s just quicker.

So far, these kinds of cases have been few and far between. But the Adams case, and MacGillivray’s response to it, makes the point that this could be a significant challenge for Twitter in the future. Not only does it have to find some way to navigate between the demands of its users and the necessity of catering to advertisers and/or corporate partners like NBC — while still upholding its self-declared status as the “free-speech wing of the free-speech party” — but it has to be careful not to become too much of a curator or publisher of content, or face the potential legal liabilities that all publishers face. Welcome to the realities of being a media entity, Twitter.

Post and thumbnail images courtesy of Flickr users Hank Ashby and George Kelly

The recusal, which was first reported in a tweet by Reuters reporter Dan Levine, was confirmed in a one-page court filing in which Koh stated that the case was referred to an assignment committee that would assign it to another judge.

Koh’s announcement is remarkable because she has been presiding over the case for more than a year and because the recusal comes just a day before a scheduled hearing in San Jose to discuss the proposed settlement.

Under the terms of the settlement, Facebook will pay a few thousand dollars to the lead plaintiffs in the case while lawyers and privacy advocacy groups will get the rest. (For more details, see “Facebook’s $10 million privacy payout: why you get nothing.”)

There have been no reports so far about why Koh stepped away from the case and court records do not show any request for recusal. The most common reason for judges to recuse themselves are when they are acquainted with one of the parties in the case or when they have a financial interest in the case’s outcome.

Here’s a copy of the recusal order:

Koh Recusal

But punch the cable programmer did just after midnight Eastern time, releasing a statement that doesn’t beat around the bush. The upshot: AMC Networks claims Dish’s decision to end carriage of AMC, IFC and WE TV has little to do with proposed carriage-rate increases and everything to do with an ongoing $2.5 billion breach-of-contract suit currently standing between the two companies.

Also read: Dish to replace AMC with Mark Cuban’s HDNet Movies

“Dish customers have lost some of their favorite shows because of an unrelated lawsuit which has nothing at all to do with our programming,” the AMC statement reads. “Dish customers will not be able to watch the new season of AMC’s Breaking Bad, premiering July 15, or upcoming seasons of The Walking Dead, Mad Men, or any of our other popular shows. We urge Dish customers who want to have access to our programming to call 1-855-KEEP-AMC or visit www.keepamc.com.”

In the same statement, AMC indicated that carriage talks continue with AT&T over carriage on U-Verse. Like Dish, the current agreement expires at midnight. But unlike Dish, there’s no indication that there’s any impasse beyond fee increases. And so far, there hasn’t been any U-Verse blackout of AMC.

Also read: Dish, America’s most over-the-top cable network, faces carriage crisis

Dish’s removal of AMC channels deprives the programmer of 14 million satellite homes — and the income from licensing fees that comes with them.

Dish, in its own statement Friday, said that AMC’s flagship channel doesn’t carry enough ratings weight with its subscribers to justify also paying for IFC and WE TV. (I don’t know about that. Mad Men is known to draw an elite but numerically finite audience. But as an AMC spokesperson reminded me Thursday, the season premiere of The Walking Dead set a basic cable ratings record in October with 11 million watchers.)

Dish also claims AMC has “devalued” its shows by letting them be streamed on over-the-top services like Netflix.

Another thought: Fox Networks also lets FX hits like Sons of Anarchy stream on Netflix. But 15 months ago, not only was it able to carve out its own carriage agreement for FX and various regional sports channels with Dish, it got the satellite service to also carry the lightly viewed National Geographic Channel.

Then again, News Corp. wasn’t suing Englewood, Colo. satellite company at the time.

Update: AT&T U-Verse and AMC announced a long-term deal Sunday, providing another option for some Dish customers who may choose to bolt over the program loss.

Now, Reuters reports that shareholders have filed a lawsuit in Manhattan federal court. The suit claims that Facebook and the banks wrongfully concealed weak growth forecasts, leading to shareholders over-paying for the stock when it debuted last Friday.

The Wall Street Journal described how Facebook’s Chief Financial Officer, David Ebersman, decided to increase the number of shares offered in the IPO by 25 percent. At the same time, Ebersman also chose to increase the opening price of the shares to $38.

As a result, the market was flooded with too many shares and the IPO quickly fizzled. Facebook shares have dipped on three consecutive days, hitting a low of $31 yesterday. The shares are up so far this morning.

More to come.