U.S. Department of Lost and Found: Umbrellas and Sweaters

I’m wondering if this new ruling by the Supreme Court of the United States (SCOTUS) could be turned around and used against me? The new ruling states that agreements on minimum prices (price floors) are legal if they promote competition.

The original case had something to do with leather accessories, but lets turn this around. What would happen if every gas station in my neighborhood decided that the minimum price for gasoline was $4.00 a gallon? Well, in that example, nothing much, I’d be willing to drive a couple of miles out of my way to get filled up at a non-participating gas station.

But if the US Oil Companies themselves decided it would promote healthy competition to make the price floor $4.00 a gallon? Is there anything we could do about that? What is the possibility that someone could reverse engineer this law to their benefit? I’m afraid.

Justices End 96-Year-Old Ban on Price Floor

By THE ASSOCIATED PRESS

Published: June 28, 2007

 

WASHINGTON (AP) — The Supreme Court on Thursday abandoned a 96-year-old ban on manufacturers and retailers setting price floors for products.

In a 5-4 decision, the court said that agreements on minimum prices are legal if they promote competition.

The ruling means that accusations of minimum pricing pacts will be evaluated case by case.

The Supreme Court declared in 1911 that minimum pricing agreements violate federal antitrust law.

Supporters said that allowing minimum price floors would hurt upstart discounters and Internet resellers seeking to offer new, cheaper ways to distribute products.

The principle that past decisions should be left alone ”does not compel our continued adherence” in this instance, Justice Anthony Kennedy wrote.

Respected authorities in the economics literature suggest that the long-standing decision ”is inappropriate, and there is now widespread agreement” that price floors can help promote competition, Kennedy added.

”The only safe predictions to make about today’s decision are that it will likely raise the price of goods at retail,” Justice Stephen Breyer wrote in dissent.

It is the fourth antitrust ruling by the court in the last four months. In each instance, the court sided with defendants that were sued for anticompetitive conduct, including Wall Street investment banks and an international forest products company.

In recent decades, the Supreme Court has chipped away at what many economists traditionally regarded as vital consumer protections against anticompetitive conduct. For example, exclusive dealer territories and setting price ceilings are no longer automatically unlawful.

The current case involves Leegin Creative Leather Products Inc., based in City of Industry, Calif. The company entered agreements with retailers setting minimum prices for the Brighton brand of women’s fashion accessories.

Leegin said that by maintaining price consistency among niche retailers it sells to, businesses can offer improved customer service. This enables smaller stores to compete against rival brands sold by discounters, Leegin argues.

Several retailers in Dallas selling Leegin’s products lowered prices below the minimum. Family-operated Kay’s Kloset said it followed suit to stay competitive. Phil and Kay Smith say that when they refused to raise prices back up, Leegin cut off their supply.

Kay’s Kloset sued and the Smiths won a $3.6 million judgment following a trial that laid out details of the price floor arrangement between Leegin and many of its retailers. The 5th U.S. Circuit Court of Appeals upheld the lower court’s finding.

Joining Kennedy in the majority were Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito. With Breyer in dissent were Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg.

The case is Leegin v. PSKS, 06-480.

[Thanks, NYTimes]

The full complaint filed by Tanya Andersen against the RIAA is now available on-line as a PDF. [CLICK HERE] The initial response to this complaint is that this woman may have a chance at winning at least some of the specific issues listed in the complaint.

I’m very glad to see that someone has finally stepped up and said they were not going to take it any more.

I would love to see the judge rule in favor of Tanya on the extortion charge RICO charges.  The extortion charges were in Tanya’s original counter-suit filed in 2005.  Those charges may be combined with these ones, but currently this suit does not charge the RIAA specifically with extortion.  To me, that would be the most meaningful blow to the RIAA.

Here’s an article from TechDirt.

Are The RIAA’s Investigation Techniques Illegal?

from the put-to-the-test dept

Having victims of the RIAA’s shotgun legal approach fight back is certainly nothing new. In fact, having people charge the RIAA with racketeering for its actions has happened quite a few times at this point. However, this latest case against the RIAA is a little different. Filed by the same woman who charged the RIAA with racketeering two years ago, Tanya Andersen, the latest case doesn’t just focus on the legal strategy, but also on the technology strategy of spying on what users are uploading — again claiming it violates both racketeering laws and computer fraud and abuse laws. It notes that the process by which the company MediaSentry tries to figure out who is offering files isn’t just flimsy, it’s illegal.

Ray Beckerman has a link to the full complaint (warning: pdf file). It talks about how flimsy the evidence is, how it’s easily falsified, how MediaSentry knew that — and how it still claims that it offers positive identification on uploaders. The suit also points out that in Oregon (where the suit is filed), MediaSentry is not properly licensed as a private investigator, which breaks the law. Then, the suit goes in for the kill — focusing on how the RIAA proceeds to use this weak and flimsy evidence to bully and scare people into paying up, abusing their private information and not giving them nearly enough time (or information) to counter the claims. The filing also contains a rather detailed description of the specific actions the RIAA took to intimidate Andersen and her daughter — despite Andersen providing an awful lot of evidence that she was completely innocent of the charges. It’s quite a filing, and should make for an interesting case should it get anywhere. The RIAA will likely do as much as it can to get the case dismissed or buried (as they did with Andersen’s previous case), but so far Andersen has shown a very strong willingness to fight for what’s right.

[Thanks, TechDirt]

A quick search of “iPhone” on EBay returned “1696 items found for iPhone“. And iLaunch hasn’t even arrived yet. I can’t wait til’ Saturday when I’l lbe presented with the opportunity to buy an empty iPhone box or complete iPhone manual.

Greatest American Movie Quotes

1. Toto, I’ve got a feeling we’re not in Kansas
   anymore.

   (The Wizard of OZ, 1939)

2. What we’ve got here is failure to
   communicate.

   (Cool Hand Luke, 1967)

3. I love the smell of napalm in the morning.

   It’s the smell of victory.

   (Apocalypse Now, 1979)

lifehacker, my on line personal life coach, has compiled a list of 8 things you can do or make to keep cool as this sweltering heat settles in on much of the country.  There is even an article on how to make your own air conditioner for $30.00.

Click here .

It looks like June of 2007 will not be remembered with fondness in the slimy halls of the RIAA.

TGDaily has a great article about the Tayna, who after successfully defended herself against the RIAA and their minions and has now filed an Oh-So-Righteous counter-suit aimed not only at the RIAA, but the puppet masters behind the scenes.

It’s just a shame that Hillary Rosen isn’t still around to share equally in the burden. You may remember that Hillary was the chief executive of the RIAA from 1998 through 2003. She was the guiding force behind the eradication of Napster and Audiogalaxy. She was also at the helm while the US government passed worthwhile laws such as the controversial Digital Millennium Copyright Act, the Performance Rights Act, and the ever popular Record Rental Act.

But, I digress. Read below!

Former RIAA defendant wants payback
Business and Law
By Humphrey Cheung

Beaverton (OR) – Former RIAA defendant Tanya Andersen is now suing the major record labels and the RIAA for negligent and illegal investigation and prosecution. In a thirteen count civil suit filed in Oregon District Court, she alleges that record labels didn’t use properly licensed investigators and violated her privacy.

You may remember Andersen as the single mother who was accused of illegally downloaded music through peer to peer networks. After a two-year legal battle, she forced the RIAA to dismiss the case with prejudice. Now, with the help of the attorneys at Lybeck and Murphy, Andersen is turning this into a classic case of “hunter becoming the hunted” by suing for direct and punitive damages.

In addition to suing the RIAA, Andersen is targeting Atlantic Recording, Priority Records, Capital Records, UMG Recordings and BMG Music. She is also naming Media Sentry and RIAA’s Settlement Support Center as defendants. Andersen’s lawyers are hitting the defendants with the full power of the Computer Fraud and Abuse Act and federal and state RICO (Racketeer Influenced and Corruption Act), something that is often used against mafia and street gang members.

Andersen claims the defendants used a scheme of “threatening and intimidating” tactics to force alleged downloaders to pay thousands of dollars in settlement fees. The victims often cannot mount an effective defense because they are only given a “short” 10-day time period to answer, according to Andersen.

The lawsuit also claims that most of those targeted by the RIAA are probably innocent because Media Sentry, the company that tracks the downloaders, doesn’t fully investigate the matter. Andersen also says the company is acting like a private investigator, something that Media Sentry isn’t licensed for in the state of Oregon.

[Thanks, TGDaily]

OK, this is what I’ve been afraid of. The aggregate costs have been computed and here’s the hit to the bottom line for all of those waiting in line for the iLaunch. OK, so a very quick comparison: Family plan with Verizon; 2 Razrs $49.99 + $35 activation + $79.00/m = $1,981. Again, I think I’m going to stick with what I have.

iPhone Total Cost of Ownership: Up to $5,914.76

This quick and dirty spreadsheet indicates the total cost of iPhone ownership over a 24 month contract, excluding likely extras such as accessories and hidden charges.

I think the apparent lack of hidden charges is one of the things Apple scores big with: unlike so much in the cellphone game, you know what you’re getting. It’ll be interesting to see the first bills out from AT&T, so we can do an accounting of nickel and diming like the Federal Hogwash Fee and the New Mexico State Chump Charge.

Naturally, most owners won’t be wanting that crazy $220 monthy plan, as detailed at Apple.com when you click the "more minutes" link — you’d have to be on the phone about four hours a day to use up all your daytime minutes! But I can easily see myself racking a good two-and-a-half grand in the next two years.

[Thanks, Wired]

I lived in Italy for 13 years and during that time I saw a very large number of fatality accidents. For quite a few years the Italians did not have nor enforce seatbelt laws. I was one of the few people that I knew when I moved there in 1986 that consistently wore a seatbelt.

It was my father who got me in the habit, and he did so with a comment that he offered as a reminiscence rather than as a lesson. He was a Monroe County Florida Deputy Sheriff in the 60’s and had to respond to a large variety of calls during his tenure there. When talking about various accidents on the then deadly two lane US1 highway he said that he never had to cut a seatbelt off of a dead body. If a person was wearing a seatbelt they were invariably alive when he responded.

This commercial won 8 awards at the Cannes Film Festival.

A 72 year-old golfer in Devon, England sliced his first tee-off so badly that it soared 189 yards and landed in the cup on the 4th hole. The picture below shows the set-up that allowed this to happen.

I think I’d have been thrilled after the fact and mortified during the fact. Clive can now say that he’s gotten a hole-in-one, the holy grail of golfers. I’ll be willing to bet that the sympathy he gets is worth the embarrassment.

A Devon golfer got a hole-in-one – on the wrong hole.

Clive Seymour, 72, sliced his drive on the first hole at Hele Park in Newton Abbot, Devon, reports the Daily Mirror.

It swerved onto the green of the fourth hole – and dropped in the cup.

Three stunned golfers approaching the fourth green watched as his ball landed ahead of them.

Clive, who has a handicap of 24, said: "I’m afraid slicing is one of my problems.

"I really got hold of the drive but it went to the left, flew over some saplings and to the left of a big oak tree.

"I didn’t see where it disappeared but three lads on the fourth said it went straight in the hole.

"You could have knocked me down with a feather."

Retired carpenter Clive, of Paignton, added: "People are saying I’ve scored the world’s first hole-in-the-wrong-one."

Club director Duncan Arnold said: "It was unconventional, but still impressive. A hole in one – at any hole – is still a dream for many golfers."

[Thanks, Ananova]

A couple of months ago I stumbled across a site that made me say, ’Huh?’. Scott Ginsberg, that guy with the nametag, was recently featured on 20/20. In the interview Scott maintains that he is the luckiest guy he knows and it’s all due to the nametag. The nametag opens doors for him that might otherwise remain closed. Watch him explain it in the clip below.

What do you think? Do we make our own luck? Can introducing yourself to someone new make that much of a difference in your life? I’d say yes.

Scott’s Website

Scott’s Blog

Best Video Games (PC)

1. Grand Theft Auto – San Andreas
2. Command & Conquer III – Tiberium Wars
3. Hexen

Take Two Interactive, the video game publisher responsible for The Grand Theft Auto series and the more recent Bully, was slapped with an ’Adults Only’ rating for their upcoming title, Manhunt 2. This does not bode well for the future of the title. Neither Sony nor Nintendo will authorize release for titles bearing that rating for any of their consoles. Take two has suspended release of Manhunt 2 while they assess their option. Unless they reduce the amount of violence in the game, the only real option they have is to schedule a PC only release. This could severely reduce sales as the big money is in console and handheld gaming.

Take-Two delays plans to distribute ’Manhunt 2’

Video game publisher Take-Two Interactive Software said on Thursday it has suspended plans to sell Manhunt 2 after the title was slapped with restrictive ratings for its extreme violence.

The game, developed by the same Take-Two studio behind the controversial Grand Theft Auto and Bully titles, had originally been scheduled for a July 10 release.

Take-Two said it "temporarily suspended" distribution plans for the game while it reviewed its options following the banning of the game in Britain and a U.S. ratings body decision to give it an "Adults Only" rating.

The rating would prevent its release on game machines made by Sony and Nintendo.

"We continue to stand behind this extraordinary game. We believe in freedom of creative expression, as well as responsible marketing, both of which are essential to our business of making great entertainment," Take-Two said in a statement.

Manhunt 2 casts the player in the role of a psychotic man who escapes a mental institution and kills enemies with a variety of weapons and objects as he tries to find out what happened to his family.

Take-Two’s statement followed comments from Chairman Strauss Zelnick on Wednesday saying he fully backed the game and considered it a work of art.

The company’s options include canceling the game entirely, releasing it unchanged only for personal computers–a move that would drastically limit sales–or altering its content to achieve a less-restrictive rating.

Manhunt 2 was originally expected to bring in about $40 million in sales for Take-Two, which had just over $1 billion in total revenue last year, according to Wedbush Morgan research.

Take-Two shares fell 4 cents to $20.61 on Nasdaq on Thursday.

[Thanks, ZDNet]

As we inch ever closer to iLaunch, Bloomberg.com tells investors that they may be getting set up for a fall. As with many of their products, Apple would like to capture the market share but in a business that is four times larger than the PC market, this could be harder than most people think.

Apple IPhone Euphoria May Set Investors Up for Disappointment

By Connie Guglielmo

June 25 (Bloomberg) — Apple Inc., whose market value passed $100 billion in May as euphoria mounted over its iPhone, may be facing investor expectations that are too high.

Apple may sell as many as 200,000 iPhones in the product’s first two days on the market this week and as many as 3 million in the second half of the year, according to the most optimistic analyst estimates. Apple, in its only public forecast, says it plans to sell 10 million next year.

Sales at those levels would outdo the iPod, Apple’s best- selling product to date, for comparable periods. The danger is that Apple may fall short of projections for initial sales and damp investor enthusiasm for the product.

“There’s definitely a lot of buzz,’’ said Andy Hargreaves, an analyst at Pacific Crest Securities in Portland, Oregon. “If they only sell 100,000, that would be bad’’ and the stock will fall. Hargreaves is one of two analysts predicting two-day sales of 200,000.

[Thanks, Bloomberg]

In a not-so-surprising move, Ferrari has responded to the recent ’10 Commandments of Driving’ issued by the Vatican earlier this week. Ferrari, known for their super fast, super pricey sports cars implies that if you have to sin once in your life then the Ferrari is the way to go, although the general manager of the sports car division quickly noted that Ferrari owners have a love of driving, not an intention to evoke envy in their fellow man. I’d say the jury is out on that one. You can love driving a Fiat Uno…

Ferrari: It ain’t a sin to buy the car

MARANELLO, Italy (Reuters) – When it comes to luxury sports cars, Ferrari begs to differ with the Pope.

The Vatican issued a document listing its rules of the road, including one warning against using cars “as a means for outshining other people and arousing a feeling of envy.”

Ferrari’s general manager acknowledged the Vatican’s concern that some drivers could use the cars as status symbols, but he said most people bought Ferraris for the love of driving.

“Unless having fun has become a sin, I don’t believe it (to be wrong),” Amedeo Felisa told Reuters this week at an event celebrating Ferrari’s 60th anniversary in its hometown southeast of Milan.

A unit of Italy’s Fiat, Ferrari makes some of the world’s most exclusive cars, each worth more than 100,000 euros.

Felisa was convinced that buying a Ferrari was not a sin.

“I hope not — but you should commit at least one from time to time,” he said.

[Thanks, Reuters]

Greatest Foreign Actor

1. Roberto Benigni
2. Jurgen Procnow
3. Toshiro Mifune

What do you get when you mix a sharp entrepreneur, a misguided and bitter photographer, and a inept lawyer? You get a hilarious e-mail thread which excites, mystifies and saddens us in turn. It’s well worth spending 15 or 20 minutes and reading everything including the comments. Good stuff, better than fiction.

This post is for you, Robert Tourtelot

Welcome, Boing-Boing and Reddit readers!The saga continues beyond this post; make sure to read

• part 2
• part 3
• part 4
• part 5

…and two new posts on the topic, with more emails from Mr. Tourtelot, will go up soon, so make sure to sub to the RSS feed.

…and, of course, check out SmartFlix.com!

I recently ran into someone who was a bit confused about copyright law, and wasn’t happy.

I sent him a polite email, and gave him my phone number.

He called, and was very tightly strung.

I tried to calm him down.

He threatened to have his lawyer call me.

I said that that might be a good idea.

His lawyer called, and was very angry and curt.

The following is from memory:

Lawyer: You’re breaking the law by renting out videos with out my client’s permission!!

TJIC: What law, specifically, do you allege that I’m breaking?

Lawyer: It’s not my job to educate you, get your own attorney for that!

TJIC: So, I’m breaking a law, but you won’t tell me which one?

Lawyer: We’ve been looking forward to having a class action lawsuit on this issue!!

TJIC: OK, great, because you’ve got one.

Lawyer: What?

TJIC: You want a class action lawsuit. Go ahead, you’ve got one now.

Lawyer: I’ll see you in court!!

TJIC: Yes, that’s what I said.

I next sent an email to the lawyer, CC-ed to my lawyer:

Mr. Robert H. Tourtelot,

Thank you for returning my phone call just now regarding the matter of me renting out XXX’s DVDs.

For the record, I was somewhat surprised that you told me that renting out a DVD was “illegal”, but that you refused to specify what law you allege we are breaking. I’ve had dozens of interactions with lawyers, and I’ve never once had the experience of someone telling me that we were breaking a mystery law, which they were unwilling to cite.

With regards to your statement that you’ve been “looking forward for a class action lawsuit on a case like this”, I, too, would enjoy such a lawsuit. The publicity that we would derive from defeating your firm in court over a baseless allegation of copyright infringement, brought about by a law firm and a lawyer that does not understand the First Sale doctrine, and which are entirely ignorant of the Supreme Court case law on the topic, would be of incalculable value to us, and would be a very cost efficient way to further publicize our service.

As I have repeatedly assured Mr. XXX, we are 100% in compliance with the law, and I continue to hope that Mr. XXX will become convinced of the proven track record of rental markets increasing profits to content creators such as himself.

However, if Mr. XXX persists in believing that we are acting illegally, and you encourage his belief in some unexplained “mystery law” that somehow refutes 17 USC 109 and several Supreme Court cases, then we will see you in court. As I mentioned on the phone, we would also likely counter-sue both Mr. XXX and – potentially – your firm.

You can direct any legal documents about the lawsuit to the our firm’s lawyer (who is CC-ed on this message), at YYY

Thank you,

Travis J. I. Corcoran

The lawyer, after taking enough time to actually crack a law book and realize that he has no case at all, replied:

Mr. Corcoran: We understand more than you think about copyright law. What I was referring to and what you failed to mention in your e-mail concerned the copying of DVD’s. Enough said?

See the original pages here.

Well, I almost missed this article in Information Week. Reinforcing my claim that Not All That Glitters Is Gold.

iPhone Backlash Misses the Point
Posted by Richard Martin, Jun 20, 2007 06:50 PM

Fake Steve Jobs is not someone to suffer indignity lightly. And lately he’s had plenty to wax indignant about. We refer, natch, to the media backlash that has risen to a veritable tide of negativity in advance of the iPhone launch a mere 9 days away (and no, I am not blogging from a sleeping bag in front of my local AT&T Wireless store).

First there was this week’s cover story in New York magazine, in which John Heileman managed to make it clear what a megalomaniac Jobs (the real one) is while admitting that, yes, the iPhone is likely to be a monster hit. Then things got really nasty.

The Wall Street Journal yesterday quoted multiple business CTOs in concluding that, while employees are salivating over the hot new devices, most companies won’t support them: "Many businesses don’t plan to sync them with internal email systems that use technology from BlackBerry maker Research In Motion Ltd., Microsoft Corp. and Good Technology, owned by Motorola Inc."

London’s Daily Mail weighed in with a negative review, and Forbes called the iPhone "a hacker’s playground." ZDNet bloggers (who seem to multiply like rabbits) weighed in with no fewer than 50 less-than-glowing posts about Jobs’ latest creation. The blogger at Gravitational Pull had the nerve to compare the sleek new quasi-smartphone to a 1994 Saab. How’s that for a backhanded compliment?

[Thanks, Information Week]

As Clara Peller might have asked, Where’s the Beef?

In what must be a high level decision, AT&T announced it’s own video sharing service that will not work on the iPhone. Just what is up with that? We can only imagine that there has been enough lead time to either have Apple tweak the iPhone to play it’s hosts video or for Apple to tweak the video playback standard enough to view the content.

In my opinion, someone in this group is not playing nice and needs a reprimand. Considering the $175.00 service cancellation fee which AT&T is going to insist on charging, my guess is that it’s AT&T.

AT&T Launches Video Sharing Service, But Not For The iPhone

AT&T CEO Randall Stephenson yesterday at the NXTcomm conference showed off AT&T’s new video sharing service. The "first-ever service" in the U.S. allows users to share live video over their cell phones while talking. While this is cool, guess what, it won’t work on the iPhone. And this video service is way too expensive.

Let’s take a look at AT&T’s new video service:

It works only on the company’s 3G, or third-generation, wireless network and requires a Video Share-capable phone, AT&T said. The company said it will offer Video Share service packs for $4.99 and $9.99 a month, depending on included minutes. Without a plan, the service costs 35 cents a minute.

New AT&T Chairman and CEO Randall Stephenson told a telecommunications industry trade show in Chicago that the new service has the potential to expand rapidly beyond wireless-to-wireless.

So you have to buy a special handset — but it doesn’t work on the iPhone because the iPhone doesn’t have 3G. and you have to pay $4.99 a month of $9.99 a month (or $0.35 a minute) in addition to your normal 3G data plan. While the idea is cool, this thing is priced to fail.

During the same keynote where he launched this new video sharing service, Stephenson kept talking about how he sees video as the future of his company. I too share his enthusiasm, but AT&T needs to do a few things better. First, they need to launch new services like this at more reasonable prices. And, more importantly, they need better 3G coverage with cool new devices that take advantage of it.

[Thanks, Information Week]