Preliminary schedule for state and private class action eBook price-fixing trials

PaidContent reports that the parties to the state and private class action eBook price-fixing lawsuits have agreed to a deadline for final preliminary filings of October 2013. That's four months after the date that the Justice Department's lawsuit against Apple. Macmillan and Penguin is set to begin. It also means that the state and private lawsuits wouldn't begin until some time in 2014. The Justice Department and states will share transcripts of depositions and other findings related to their investigations with the class action lawyers. There are talks with a mediator scheduled for this fall to consider a settlement of all the cases, but for now, that looks like more of a formality than a sign that a settlement is in the works.

Google settles some French book scanning lawsuits

Bloomberg reports that Google has settled the remaining lawsuits with the Syndicat National de l'Edition (SNE, the French Publishers Association) and the SGDL Society of Authors (it previously settled with Hachette Livre and La Martiniere Group.) The settlements will allow Google to begin to sell out-of-print titles in France, although no financial terms were released. Google will also sponsor a school-reading program run by the SNE, and will financially support development of a database of book authors and rights-owners by the SGDL Society of Authors.

ivi TV could be "off the air" soon

Yesterday, a Federal judge in Seattle dismissed a suit filed by ivi TV, the company that sent programming from broadcast stations in New York, Seattle, Los Angeles, Chicago and other markets over the Internet without permission. The court ruled that ivi improperly filed the case in Seattle to avoid being sued by broadcasters and networks in New York.

FilmOn, which followed ivi into the U.S. market, was enjoined from retransmitting most U.S. broadcast networks last year. The Seattle lawsuit was the only thing preventing the broadcast stations and networks from demanding the same relief from ivi. Now that the way is clear for a trial in New York, ivi could be enjoined from broadcasting most of its stations and networks in as little as a week.

Ivi can still argue that the U.S. Copyright Office gives it the right to retransmit broadcast signals, but most of its subscribers will drop the service while the arguments go on. It's unlikely that ivi has the financial resources to fight a drawn-out court battle, so the Seattle court's decision is likely to be the beginning of the end for ivi.

What do Mark Zuckerberg and "The Producers" have in common?

I now direct your attention to the curious case of Paul Ceglia, who filed suit on June 30th in New York state Supreme Court against Mark Zuckerberg and Facebook, asking to be awarded 84% of Facebook. Ceglia submitted a copy of an agreement that he claimed he entered into in 2003 that required Zuckerberg to create a website for Ceglia's company. Tied together with that project was an agreement for Zuckerberg to sell Ceglia a 50% interest in "The Face Book". Ceglia paid Zuckerberg $1,000. In addition, a clause in the contract required Zuckerberg to give up an additional 1% ownership for every day after January 1, 2004 that "The Face Book" didn't go live. The website, at thefacebook.com, finally went live on February 4, 2004, and Ceglia claims that due to the delay, he's owed an additional 34% of the company. The entire lawsuit, including the contract, is viewable at Scribd.

Ceglia has his own problems; he's under investigation in New York state for fraud relating to his wood pellets business. Ceglia waited more than six years to file his lawsuit, and it was filed in a New York state court, not U.S. Federal court. The contract itself is a mess (I'm not an attorney, but I've read a few business contracts in my day, and this one could be an example of "Ten things not to do in a contract.")  The easy conclusion would be that Ceglia had faked the contract, faked Zuckerberg's signature, or otherwise engaged in some kind of fraud. However, that's not what appears to have happened.

Neither Facebook nor Zuckerberg's attorney have come out and said that the contract is a fake. When asked directly by the U.S. Federal Court judge who's taken over the case if Zuckerberg actually signed the contract, his lawyer said "Whether he signed this piece of paper, we’re unsure at this moment." That's a pretty startling statement by defense counsel. If Zuckerberg didn't enter into the contract, his statement to his counsel would be a straightforward "No", and that's what his attorney would have told the judge. However, it appears that Zuckerberg and Facebook are hoping that Ceglia can't produce an original copy of the contract. If not, and all that Ceglia can provide is a facsimile, it makes the case for the authenticity of the contract much weaker. In essence, what Zuckerberg's lawyer said is that they don't know if he signed that particular piece of paper, not that he signed a contract in general. In fact, Zuckerberg's attorney has admitted that Zuckerberg entered into a contract with Ceglia to build a separate website for him.

Facebook and Zuckerberg's counsel are also arguing that the statute of limitations has already run out on any claim that Ceglia could make. In addition, given the enormous amount of publicity that Facebook has had over the years, and the publicity that sales of equity holdings in Facebook have had, Ceglia had an obligation to take action to protect his interests and mitigate losses of other investors.

There's a good chance that Facebook and Zuckerberg will prevail on their arguments, even if Zuckerberg did enter into the contract...but if did he enter into the contract, why? Facebook has already had to pay a $65 million settlement to the Winklevoss brothers, who originally contracted with Zuckerberg to create the website that eventually became Facebook. If Paul Ceglia's contract is shown to be authentic, even if it can't be enforced, Zuckerberg sold him 50% of Facebook for $1,000. Why was Zuckerberg apparently selling Facebook to everyone he could find? It sounds like the plot from "The Producers"; perhaps he thought that "The Face Book" would fail, and he'd keep everyone's money, or perhaps he desperately needed the money for some reason.

In any event, would you like to have this man running your $20 billion dollar valuation business?

Adobe's rumored to be planning to sue Apple, but over what?

According to ITworld Daily, Adobe is gearing up to sue Apple over the new restrictions on cross-compilers in the latest version of the iPhone Developer Agreement. (Standard disclaimer here: I'm not a lawyer, this isn't legal advice, and your mileage may vary.) What I'm not sure about are the grounds under which Adobe will sue.

Apple isn't a monopoly; the iPhone isn't the most popular smartphone (RIM's BlackBerrys still hold that distinction.) The iPad just started shipping, and companies have built tablets for years. A company can't be a monopoly in its own products, and Apple has the right to put whatever restrictions it wants into its own agreements, so long as those restrictions aren't illegal. It doesn't appear that Apple induced Adobe to implement its Flash-to-iPhone cross-compiler; Adobe made that decision by itself, to get around Apple's previous restrictions on Flash. Apple had no legal obligation to inform Adobe of its decision to ban cross-compilers before it made the announcement. No developer is forced to sign Apple's new agreement unless they want early access to the iPhone 4.0 SDK.

So, I'm not sure what grounds Adobe is going to use to sue Apple, if it files suit at all. After all, for several years, Adobe either refused to release applications for OS X or released them later on the Mac platform than on Windows. Premiere Pro was unavailable for the Mac for several years. Adobe's actions definitely hurt Apple, but Apple never filed suit against Adobe to force the company to port its applications to OS X in a timely manner.

This may all be a PR scheme on Adobe's part to try to get Apple to change its policies. It doesn't seem as though Adobe has very strong grounds for a lawsuit.