Faced with a Five-Page Limit, Lawyer Files Cartoon Amicus Brief

http://www.abajournal.com/news/article/faced_with_a_five-page_limit_lawyer_files_cartoon_amicus_brief_with_proper_/

by bootload • 14 years ago

172 59 14 years ago

dlss• 14 years ago

Somehow I was expecting an ending where the author is awesome. Maybe he lifts a car, maybe the girl gives him a series of unreasonable compliments... just something

jethroalias97• 14 years ago

I don't know if Poe would be considered a novelist, but he can really blow you away in less than 5 pages.

1) http://www.online-literature.com/poe/335/

chrischen• 14 years ago

I don't think the comic format was legitimately for fitting more info in to 5 pages. Probably more of a publicity gimmick.

thedudemabry• 14 years ago

I agree. This isn't a space-saving brief. It's an attempt to inflame. But...

I think it's pretty cool that a new medium for legal discourse has been actually used. Several years after absorbing Scott McCloud's phenomenal book Understanding Comics (http://en.wikipedia.org/wiki/Understanding_Comics), I set out to argue for a very technical (programming) project at work through a goofy comic. It was surprisingly effective, and got more eyes on it than the more traditional internal wiki plea. I assume that the novelty and incongruence of the medium brings the audience out of whatever comfort zone they routinely occupy.

Steko• 14 years ago

Faulkner had the best quote here:

I'm a failed poet. Maybe every novelist wants to write poetry first, finds he can't and then tries the short story which is the most demanding form after poetry. And failing at that, only then does he take up novel writing.

mhd• 14 years ago

Maybe it's just the looks of the main character, but this reminded me a bit of Scott McCloud - although I would like how he would do things like this in a "Understanding Comics" style.

fpgeek• 14 years ago

For completeness, here's a non-cartoon summary of the other side of the story: http://www.courtneymilan.com/ramblings/2012/07/24/your-unspe...

aaplsux4• 14 years ago

Inexpensive books? This must be stopped! The last thing the country needs is educated citizens. Think of the job creators! They are special snowflakes.

TimGebhardt• 14 years ago

Did you actually read the story? It's not that the books were low priced. It's that they were priced predatorily. Preditory pricing is bad for consumers in the long run, and in every industry outside of software is seen as a bad thing. In the software business that seems to be the standard VC-backed-company model.

grabeh4• 14 years ago

I think in the case of professionals, supply to the market is regulated by professional standards boards which limit entry into the profession.

Due to this pre-existing restriction, I am not surprised the courts would hold that people within that sphere should be free to compete on price, as each doctor will (you would hope) have the same basic set of skills to an extent.

The above restriction is not in place with regards to e-book providers so I think this weakens the argument somewhat.

anigbrowl• 14 years ago

A bit gimmicky (since the argument could easily have been stated in a couple of pages), but he developed the argument cleverly.

grabeh4• 14 years ago

Although the argument relayed in the comic could be stated in a couple of pages, I believe the point of the comic is to mock the judge for imposing a 5-page limit as this is an insufficient amount of space in which to relay the full argument that the lawyer wanted to make.

The last section states 'it's impossible to tell a complex story in only five pages'.

bifrost• 14 years ago

this is excellent!

Tichy• 14 years ago

Not that we can see it in black and white, the case is settled. Pictures can't lie.

tankenmate• 14 years ago

The argument of the cartoon is great except for one thing, the marginal cost; for e-books the marginal cost is so close to zero it might as well be considered zero. This was also stated by another commenter on the OP discussion section.

aaplsux4• 14 years ago

Exactly. But this bonehead wants to argue that it's "presumed illegal" to sell them for what they cost: almost nothing.

biot3• 14 years ago

If you're paying a $3 royalty to the rightsholders per copy sold, then the marginal cost is at least that plus minor distribution and transactional costs. If you sell the e-book for $2.99, that's below marginal cost.

rprasad• 14 years ago

True, but publishers still need to recuperate the fixed costs of the ebook.

Marginal cost theory holds that the price of goods will trend toward their marginal costs over time. It does not hold that the price of goods will start at the marginal cost.

SCdF• 14 years ago

If someone is paid based on the number of books sold does that count as a marginal cost?

junto• 14 years ago

It is a pity that his argument is a load of bollocks.

As I understand it, he argues that an e-books price fixing cartel is in the interests of all, including the consumer, because otherwise, companies such as Amazon will lower the price to a point (whilst continuing making a loss), such that all others e-book sellers are unable to compete long term.

Or, have I misunderstood his five pages of cartoon genius?

quadhome• 14 years ago

Maybe.

But you haven't explained why it's a load of bollocks.

sageikosa2• 14 years ago

Because it is a non-sequitor. It uses hypothetical future bad behavior (which itself isn't proven) to justify an actual "bad" behavior to compensate before it occurs.

But, I am anti-anti-trust, so I don't have a problem with collusion of this sort; any inefficient collusion will eventually bloat and be disrupted (unless protected by the government as a sanctioned monopoly).

chalst• 14 years ago

Price competition that results in monopoly is not in the long-term interests of consumers. This is the same argument that lies behind anti-dumping legislation.

I'm not convinced by it either, but the lawyer does have a fair point that it is hard to demonstrate the seriousness of the danger without being allowed space to document his view of the economics of e-book competition.

jbrechtel• 14 years ago

Yes, that's exactly what he's saying. Though, in his cartoon he makes it clear that this is only OK as a one-time event to correct what Amazon is doing (i.e. selling below cost in an attempt to put competitors out of the market and thus preventing the market from being able to efficiently price eBooks).

sageikosa2• 14 years ago

Basically the one-time event is forcing Amazon into the cartel, so I don't see how that makes it any better.

aaplsux4• 14 years ago

This guy is your typical lawyer who has no life outside of his job. Just a tad bit overeager. "Look at me I'm an annoying laywer! I will argue the moon is made of cheese if you pay me." I can only imagine how long his brief would have been without the limit. The judge was wise; she obviously values her free time more than he does.

"Efficient" prices. Yeah right. In other words, Apple prices. We all know how they work.

Go Amazon!

dctoedt• 14 years ago

> This guy is your typical lawyer who has no life outside of his job.

Far from it. If the comic author is who I think it is [1] (and I'm pretty sure it is), he's not at all your typical lawyer. Way back in the day, he was the general counsel of Borland International [2], which published Turbo Pascal, Turbo C, Sidekick, etc. Bob's Christmas-card newsletters were always a blast to read, although I haven't been on his mailing list for a number of years now.

[1] http://en.wikipedia.org/wiki/Bob_Kohn

[2] http://en.wikipedia.org/wiki/Borland

aaplsux4• 14 years ago

You're right. I'm wrong. Apologies to Mr. Kohn.

He's not a bonehead either. But that is a boneheaded cartoon and he is making boneheaded arguments.

When you look at what he's doing now and who is clients are it makes perfect sense why he wants to submit an amicus brief.

As a consumer, Kohn is not looking out for my interests.

The internet makes publishing less expensive. We are getting things for free that we used to pay for. This aggravates lots of people. But technology has no moral sense. It is a means to an end. (The information in legal research databases, not to mention the dubious "copyright" status of court decisions that some "Legal Publishers" assert, are fine examples you should be familiar with. The internet does not benefit every business. Poor Lexis-Nexis. Poor Westlaw. Poor Martindale. They have to adapt and compete. What a tragedy.)

But the internet clearly benefits consumers. We get lower prices and better access to information. How is this a bad thing?

Amazon may be no angel but they have embraced the internet, openness and interoperability to a far greater degree than those who now oppose them, seeking the help of the courts to slow Amazon's progress.

Royalty rates are a matter of negotiation not actual production and distribution costs. It's interesting to see how some commenters seems to view what the publisher deems a reasonable rate as a "fixed cost".

The top post in this thread is spot on. There's nothing to stop anyone from offering low prices like Amazon. It's pretty obvious why they do not want to and why they would go so far as to suggest Amazon is breaking the law.

I don't want to see people's book collections turn into some ridiculous propreitary iTunes-like lock-in, denying people ownership or any reasonable amount of interoperability.

seanmcdirmid• 14 years ago

Related to Bret Victors work: http://news.ycombinator.com/item?id=4421235

I really want to try this in my next paper!

lucian1900• 14 years ago

So it boils down to "let collusion go unpunished this one time, because we did your job for you!". Right.

Not only would it create a precedent in letting collusion slide, but it would also misrepresent the problem: it's DRM that supports Amazon's monopsony, and only because publishers asked for it.

weekends• 14 years ago

If all legal briefs were like this I suspect more people would be able to understand the law

Swizec• 14 years ago

After reading the comic, I have no idea what the point is. Is he for or against whatever is going on? What's even going on?

I just feel so confused.

grabeh4• 14 years ago

Initially, Amazon set prices at whatever level they wanted because they had a distribution model with publishers. This means the publisher would charge a set price to Amazon and Amazon could then charge whatever it liked to end-consumers. Amazon engaged in low pricing to build market share.

Apple and publishers didn't like this because lower book prices meant lower revenues and sales for them.

Discussions were had and publishers then collectively went to Amazon to demand a switch to the agency model. In the agency model, the publisher sets the end retail price and the intermediary (Amazon) takes an agreed cut.

The lawyer argues that the above one-time step by the publishers against Amazon was necessary to correct the anti-competitive action of Amazon in engaging in pricing at a level which would reduce competition over time.

Effectively, the rise in prices resulting from the agency model was justified because without the reversion to the agency model, Amazon's continued low pricing would eventually lead to monopsony effects in terms of Amazon being able to control publishers.

The lawyer goes on to say that what is important is not the price level, but its effectiveness in terms of encouraging competition. In the short term, consumers benefit from a low price, but if one actor becomes the only provider, it is likely to have a detrimental effect on the ability of upstream providers to compete.

mtgx• 14 years ago

Which model ended up benefiting the consumer the most, though? I thought that's what antitrust is all about.

Sure, we could make theories all day long about how 10 years from now Amazon will increase their prices, but that's highly improbable, as I think Amazon would like to make book prices even lower if they could. That's why they are allowing self-published authors to sell books even for $2.99, and singles for $0.99. They are working in the same time to disrupt the traditional publishing model. And that's a good thing.

I was hoping Google would be the more innovative company with Google Books, and try to disrupt Amazon with new models of selling books (or free/ad-based, promote self-publishing more, etc), but they've disappointed me in doing that, and honestly I have no idea why they even bothered entering the book market, if they weren't going to be serious and do something radical and disruptive to gain market share from Amazon.

I'm not even a fan of Amazon, and I'll never forgive them for what they voluntarily did to Wikileaks, but so far Amazon has proven time and time again to be the most innovative company in the book industry.

kghose• 14 years ago

It looks novel (and obviously succeeded in getting attention) but I don't think he used the comic medium potential - it was all mostly bullet points, but instead of bullets, he put a comic frame around each point.

The question and answer format was OK, but really, it did not clarify any points for me or make them less dense.

But then, this was still meant for other lawyers, and not as a layman's explanation.

colinshark• 14 years ago

So Amazon is being bad because they might seize the market and raise prices. But the publishers want to raise prices right now.

Got it.

calinet6• 14 years ago

"The illustrator attends school with Kohn's daughter, Katie, who is pursuing a Ph.D. in film studies at Harvard."

"Attends school with." Mmmhmmm.

saurik• 14 years ago

I can't imagine that this was more efficient, or potentially even more enjoyable, than something that used the space more efficiently: between the handwritten and crowded text, the repetitive panels, and the irritating premise of a conversation that would never have happened, I found reading that document very difficult.

lukev• 14 years ago

So he's weighing two bad things against eachother:

- collusive price-fixing

- predatory pricing

These are both definitely bad things, and using one to justify the other is itself problematic.

But there's another dimension - are these allegations true? As I understand it, predatory pricing is when a large player throws its weight around, offering goods at below cost to edge out competitors.

But there's nothing stopping other retailers from offering similarly low prices. Ebooks have almost no marginal price. Just because someone else wants to sell ebooks for a higher price doesn't make prices lower than that predatory.

pedrocr2• 14 years ago

>Ebooks have almost no marginal price. Just because someone else wants to sell ebooks for a higher price doesn't make prices lower than that predatory.

To Amazon ebooks have a marginal price as they're paying the publisher a fixed value for every copy. They were charging customers less than that value so that's where the accusations came from.

eridius3• 14 years ago

Very true. And it's highly unlikely that another distribution channel could come along and convince the same publisher to sell the ebooks to them at a lower price, so they could compete with Amazon without selling below cost.

It seems a lot of people are fixated on the idea that digital goods have no cost, which is simply untrue. Even discounting the fact that the seller has to purchase the item from the publisher (under the traditional model), there's still a base cost associated with the good because of licensing issues. People need to get paid, and certainly some people do get paid on a royalty basis. As a trivial example, someone needs to pay the author, which is typically done through royalties. But the publisher also needs to get paid, as does anyone the publisher employs.

If you're self-publishing and selling on your own storefront, then no there's probably no marginal cost as you don't have any sort of license or royalty agreements with yourself. But as soon as multiple parties are involved, things change.

gunshor• 14 years ago

Who knew -- lawyers can be creative. Count me impressed.

tomrod• 14 years ago

ahem

Marginal costs on ebooks are essentially zero after factoring payment to authors/publishers. Fixed costs, even long-term variable costs, cannot be considered marginal costs here. The costs are hosting and delivery of content.

So unless Amazon is selling books at a price lower than what it paid to authors/publishers who distribute through them, I don't follow the inherent marginal cost pricing argument.

Perhaps the author means average costs?

Faced with a Five-Page Limit, Lawyer Files Cartoon Amicus Brief

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