Copyright Social Media

Mobs 2.0 and the AP

I’ve withheld writing before on the AP fooflah, primarily because writing counter to the Mob is about the same as throwing a sandbag on a levee that’s already broken. Now the Mob is descending on the Media Bloggers Association because Rogers contacted that organization for legal advice, and the organization’s lead knows the AP folks.

The noise is that the Media Bloggers Association doesn’t represent the webloggers, which is something that the MBA has never claimed. What’s really at stake, though, is discovering that, as I thought and wrote in comments to some of last week’s posts, there is more to this story than first appeared with Rogers’ initial posting. The concept of waiting to hear all the facts, though, seems to be anathema in this environment now. Report first and maybe fact check some other time seems to be the credo of a disappointing large number of A listers who actually call themselves “journalists”.

What’s particularly sad about this recent variation of the AP fooflah, isn’t so much that the MBA is representing “all” bloggers so much, but that people like Jeff Jarvis, Michael Arrington, Matthew Ingram, and Teresa Nielsen Hayden, at Making Light, seem to be offended that Robert Cox is getting attention, which we assume, should be directed at Jeff Jarvis, Michael Arrington, Matthew Ingram, and Teresa Nielsen Hayden. This following digging up an old AP form, set up for businesses who want to incorporate AP content into their material, and making a breathless and astonishing leap of judgment that this is what the AP’s answer to webloggers is going to be. Talk about manufacturing facts out of whole cloth— this, this is our newest form of journalism?

How much of this is really based on outrage and how much is based on wanting to generate attention is a difficult to separate at this time— a fact that should give us serious pause. The outrage is disproportionate to the event, until such time as the AP comes out with more information about what they feel is, or is not, fair use. Remember, it doesn’t make the organization evil because it wants to provide clarification as to its interpretation of fair use. Also remember that just because you’re a blogger doesn’t mean you get to set all the rules. We’re not six year olds, demanding our lollies.

Scott Rosenberg has a good point in that it is important to hear the AP’s guidelines and interpretation of fair use, because both could have far reaching impact on how we write in these spaces. However, Rosenberg has not joined the “burn ’em first, ask questions later” war path; deciding to join with others, including Denise Howell at Lawgarithms, and the New York Time’s Saul Hansell, in wanting to find out the facts, first, before taking match to the current effigy du jour.

What’s chilling about this event is Michael Arrington’s post deriding Hansell for his coverage of this event. Hansell’s coverage has presented both sides of this issue, in a manner that is both thoughtful and level headed. In particular, he deplored the over the top reactions among some webloggers, including demands for AP boycotts, the benefit of which will only increase the exposure of a few at the expense of the many. To chastise him for what is nothing more than decent reporting is to chastise anyone daring to have a differing opinion from The Mob.

What I’m seeing with Arrington and the others is a demand for group think; an it’s their way or the highway implicit directive that, to me, is a greater threat to truly free and open communication within weblogging than anything the AP can or will do.

Copyright Web Writing

Something for nothing

Recovered from the Wayback Machine.

I like Andrew Orlowski, though he offered me a writing job once and then yanked it. I don’t always agree with him, and I don’t always agree with how he phrases some of his material, but he typically has a good point.

Take the recent Nine Inch Nails album release. Several songs for free, and the rest of the album costs $5.00. What happens? It’s immediately dumped on Pirate Bay. Bandwidth issues aside, as Radiohead found out, people won’t pay.

The anti-copyright crowd kicked at the music business, because it was complacent, wasteful and reactionary, and no digital download services were available. Then they kicked at DRM-locked music, because DRM was there. Then DRM died, and they’d indiscriminately kick at the music business – indie or major – simply because there was a middleman. But now, with no middleman, they just kick the creator directly. They can’t stop kicking. These zombies are unstoppable. Are they incurable, too?

This goes beyond copyright. Too many people expect immediate access to anything on the Net, or anything that could possibly be put on the Net. They want something for nothing. This isn’t free speech, this isn’t Free the Mouse, this isn’t anything to do with not stifling creativity: people assume a privilege for themselves they, frankly, don’t deserve. Their cry is, “gimme gimme gimme”, existing in a state of selfishness to bring down the band. And by their selfishness, they’ll probably screw things up for the rest of us. After all, DRM doesn’t exist so you can’t copy a song on to your iPod.

Excuse me, while I go put my DRM locked movie into the DVD player.

Legal, Laws, and Regs

Those poor Exxon executives

I don’t hide the fact that I hold today’s sitting Supreme Court justices in disdain. There’s no reason to look further for my reasons than what was reported by Dana Milbank in the Washington Post; about the Exxon Valdez, and the Supreme Court’s concerns about the poor Exxon executives, and what is becoming known as the Supreme Court Corporate Two-Step.

The notion of the justices pulling a number out of thin air seemed a bit too neat for an oil spill that spoiled 1,200 miles of Alaska’s coastline. But then the argument had less to do with the dead marine animals and ruined fishermen than with an obscure maritime law case from 1818 called The Amiable Nancy– or, as Scalia put it, the ” Amiable Whatever It Is.”

As the justices probed the intricacies of the laws of the sea, Ginsburg discussed Rule 50. Kennedy invoked Instruction 30, Instruction 33 and Instruction 36. Spectators showed evidence of drowsiness. Reporters yawned — at least until they were jolted awake by an alarming prospect raised by Ginsburg, who spoke about “a new trial” and the “next time around.”

A new trial? After 19 years of legal fighting? Out on the plaza after the argument, Brian O’Neill, one of the Alaska victims’ lawyers, conceded that, whatever the Supreme Court’s ruling, Exxon had already won. “I guess the lesson you learn,” he said, “is that if you’re big and powerful enough, you can bring the system to a halt.”

Thank you Tortdeform.

Legal, Laws, and Regs

Arbitration update

Recovered from the Wayback Machine.

I need to write an update on arbitration and what’s happening with the Arbitration Fairness Act of 2007. In a way, I’d almost rather we wait on a vote until after we have a Democratic president, because anything that doesn’t support corporations over the people will be vetoed by President Bush. At least with a Democratic president, we’ll have someone who cares about consumers, employees, and regular people like you and me.

In the meantime, you can compare how various sides debate this issue. Kia from Tortdeform has three recent items. Huffington Post has a story about more women abused by KBR employees in Iraq and forced into arbitration.

Then there’s Ted at Overlawyered. Ted works for one of the conservative think tanks. I wouldn’t want it said that I didn’t point out the opposition. Here’s a couple of recent posts from Ted. Personally, I think Ted does more to sell the Arbitration Fairness act of 2007 than almost anyone I know, and he’s against it. Do be sure to check out the comments.

This is my favorite from a recent exchange:

Me: The only choice I know of with arbitration clauses in employment contracts is not to take the jobs. That doesn’t strike me as a true choice. Does that strike you as a true choice?

TF: KBR employees have that option. They don’t have to work for KBR if they would rather have lower wages with an employer that does not have a mandatory arbitration agreement. It’s just one of the terms and conditions of employment, like free parking, a free gym, and how many weeks of vacation are offered.

Yes, I typically equate the loss of constitutional rights with free parking and a gym pass.

Legal, Laws, and Regs

Monetary damages and cellphone contracts

Recovered from the Wayback Machine.

AKMA writes on a situation too many people still face: unreasonably long cellphone contracts and outrageous termination fees. I wrote of my own experiences with cellphone termination fees last year. After reading AKMA’s post, I thought now would be a good time to provide an update to the story.

First, I paid the outrageous early termination fee bill. Regardless of whatever action I would or would not take, not paying this bill puts the account into collections and that way lies a whole other nightmare. If you don’t pay the fee, you’ll get a late payment mark in your credit report, and the cellphone companies almost immediately turn the account over for collection.

Once in collection, you’ll be hounded day and night, as mystery charges get tacked on until the final bill is so bloated, it’s like a minnow has suddenly been transformed into a whale. You’ll also most likely get sued–unpaid cellphone bills account for a significant proportion of the collection law suits filed in state courts–which gives the collection company and/or the cellphone company the edge, legally. So, not paying the fee was not an option.

I then went to town, researching the laws surrounding cellphone termination fees, how to file a small claim case in Missouri, as well as people’s experiences with termination fees (usually detailed in weblogs or forums). It was when reading through weblogs that I discovered an interesting fact.

Did you know that in many states, you can’t be charged a termination fee above and beyond the actual monetary damages suffered by the party with whom you’re terminating said contract? Even if the contract includes a clause that specifies a given amount to terminate the contract early, that amount has to bear some relationship to actual, real damages suffered by the other party.

In contract law, a provision specifying termination damages is called a liquidated damages provision. The purpose of such a provision is to state what damages would be in cases where actual damages might be difficult to assess. However, when challenged the entity behind the contract must be able to defend such a provision, either by demonstrating the difficulty or impossibility of proving such damages, or by demonstrating that the charge closely matches the actual damages suffered. From the FreeAdvice site:

Sometimes business contracts contain a “liquidated damages” provision, providing for payment of a certain fixed amount in the event of a breach. These provisions typically are upheld if the actual damages would have been extremely difficult to ascertain and the amount of the liquidated damages is reasonable. Courts generally do not enforce liquidated damages that are intended to serve as a penalty or are far in excess of the amount of damages the parties may reasonably forecast.

In all my personal investigations into consumer law, one thing I’ve discovered over the years is that contracts are not ironclad or immutable. In other words, a company can write a contract and you can sign it, but that doesn’t mean the contract or any part of it is enforceable, or that you’re forced to comply with the provisions without any other recourse.

A great disservice has been done to the American people in the last hundred or so years. We have been brought up to believe that contracts are law, as well as acts of honor, a belief reinforced by companies such as Verizon and Sprint. After all, one only has to call customer service of either of the aforementioned company to hear how the how enforceable is the company’s contract, how defenseless we are to debate or quibble with any part of it.

However, it is up to the courts to truly determine the enforceability of the contracts (a right, I want to add, which companies have been attempting to erode by adding arbitration clauses). If a contract or any part of it is not enforceable, and we research our case and come to court prepared, the courts are just as likely to side with us as the companies.

As for the indoctrinated sense of “honor” when it comes to contracts, tell me how honorable is it to charge a $500.00 fee for two cellphones, 3 and 8 years old, and failing? Or to arbitrarily change contract terms? Or force a renewal of a contract, just because you want a cellphone that works? To corporations, there is no honor in contracts, only corporate benefit and enforceability.

I digress. Returning to the concept of “liquidated damages”, the reason that cellphone companies ostensibly give for the cellphone termination fee is that the cellphone company is subsidizing the cost of the equipment, i.e. the cellphones. However, as the current spate of class action lawsuits against most cellphone providers are stating, if this is true then the termination fee should prorate, reflecting the prorated value of the equipment so provided, over time.

It is ludicrous to assume that the monetary costs to the cellphone company based on them giving you a cellphone would suddenly accrue the last month you have your contract. No, the value of the equipment, and their investment in it, would depreciate over time. The termination fee should reflect this depreciation.

(Perhaps what I should have done is offer Sprint $1.83 to cover any perceived value for two cellphones. I imagine this would be more than adequate to cover any income derived from scrapping both phones.)

Armed with anecdotal accounts and actual examination of Missouri state law, I was ready to take my case against Sprint to Small Claims court. First, though, I did a look up using Missouri’s own Case Net to see how successful people were against Sprint. Lo and behold, I found that everyone who had filed against Sprint–and there weren’t many–had won a default judgement. Why? Because it costs Sprint more to defend against the case in small claims court than to just pay the judgement.

Now, I imagine that buried in all of the agreements Sprint had sent out over the years was a clause insisting on the use of arbitration rather than the courts if people like you and me want to sue the company. However, there’s another fact about arbitration that comes into play with companies like Sprint: if I initiate a suit in small claims court, Sprint would have to send in a lawyer and file a response to have the case removed to arbitration. Then, Sprint and I would go, back and forth, about arbitration law and applicability–not to mention whether Sprint’s arbitration clause was conscionable (equally fair) and so on–until the courts either sided with me, or with Sprint.

While all this back and forth is going on, Sprint is paying for the services of a lawyer who would probably charge in the first two hours the same amount as my claim–and I can guarantee taking up more than two hours. Just because the Supreme Court has bent over backwards to kiss corporate butt in favor of arbitration doesn’t mean we have to roll over and play dead. There are arguments and defenses one can make against arbitration. Nor, since the suit originated in small claims court and according to Missouri law, can I be forced to pay the lawyer’s fees even if I lose the case. I would only lose the filing fee: $35.00.

In fact, it is the cost of the attorney as compared to the possible value of an award that leads many companies, and most likely Sprint, too, to *add a provision to their arbitration clauses that would allow small claims actions. Telecommunication, manufacturing, and most other companies outside of the finance industry add arbitration clauses to prevent class action lawsuits, not “nickel and dime” small claims cases like mine. Well, not nickel and dime to me, definitely nickel and dime to Sprint.

With all this in mind, I decided I would give Sprint another chance before going to court. I submitted a claim to the Better Business Bureau, detailing not only the problem, but also the course I would be forced to take if resolution could not be satisfied via intervention by the BBB. The important aspect of all of this is that the course I would take was one I would follow. I was not bluffing, and it was important to communicate the sincerity of my intent.

Sprint did respond just before the BBB deadline, denying my claim. The BBB asked if I would be willing to compromise. I responded back that at one point in time I was willing to compromise but Sprint was unwilling. Now, there would be no compromise: I wanted a refund of the entire termination fee and state and local taxes or I would have no recourse but to take this to court.

This week I received a check from Sprint for a full refund. I’d like to think that the reason I got the check is that Sprint is beginning to realize that it would be a more successful company working with customers, rather than “trapping” us into untenable contracts enforced with unreasonable fees. Verizon was the first cellphone company to make this determination, prorating termination fees based on how far into the contract the customer is. Other companies have followed suit, including Sprint, though its prorate program came after my termination.

I’d like to think the company saw the light, but I don’t think Sprint, or any of the cellphone companies, is there yet. Until they are, challenging the contract terms and termination fees via the BBB and small claims court, though not the ideal path, did work, at least in this instance.

I’m not advising AKMA to take the same course I did. I won’t give out legal advice, as I’m not a lawyer and I’m not qualified. Hopefully though, AKMA and others with similar cellphone termination fee problems will discover some ideas in regards to their own situations from this recounting.

*I found a copy of the most recent Sprint agreement. It does allow for small claims court cases.