The claims, set out in a new court filing, coincide with reports this weekend that the Justice Department is nearing a settlement in the e-book dispute.

The two-headed legal brouhaha is part of a long-running flap over publishers’ adoption of so-called agency pricing in 2010. Under this model, publishers set the price and retailers like Apple or Amazon take a commission.

So far, the plaintiffs haven’t been able to show hard evidence of a conspiracy — such as Apple and the publishing executives chomping cigars while poring over pricing charts.

But in the new filing, the plaintiffs say a 1939 Supreme Court case means that indirect evidence of price jumps and other “plus factors” is enough to establish a conspiracy. The case involved eight movie distributors found guilty of fixing screen prices.

In the e-book case, the new filing points to circumstantial evidence like:

• A series of four deals in twelve days between Apple and the publishers
• A trade association meeting at which senior executives from Hachette and Macmillan were seen together in a hotel bar
• Similar terms in the contracts between Apple and the five publishers

An agreement among competitors to set prices is “horizontal price fixing” and an automatic violation of the Sherman Act.

The publishers have argued that there was no conspiracy and that they adopted the agency model independently because it made business sense. At the time, Amazon was selling e-books at below market prices; publishers feared the practice would train consumers to expect unviable prices.

The new filing also revisits Apple’s role in the alleged conspiracy. The iPad maker has pushed back against the antitrust claims by pointing out that, at the time, it had no power in an e-book market that was 90 percent dominated by Amazon (NSDQ: AMZN). Apple’s lawyers have also said that plaintiffs have “mischaracterized” comments by Steve Jobs about his relationship with the publishers.

In response to Apple’s defense, the plaintiffs said the company had a motive to be the hub of a conspiracy because:

The “situation that existed” was that Apple was late to the eBook market, Amazon had a very large installed user base, a strong appetite for discount eBook pricing, and Apple wanted to knock out a reason to buy a Kindle versus an iPad – the price of eBooks. The scheme protected Apple from price competition from other retailers and increased Apple’s revenue per eBook unit sold compared to the wholesale model.

Finally, the filing recasts Barnes & Noble’s role in the affair. In a January complaint, the plaintiffs had implied that the bookseller may have supported the conspiracy because it wanted to protect the price of its hardcover books.

Now, the plaintiffs call attention to the fact that Barnes & Noble (NYSE: BKS) launched its Nook reader months before the iPad and that the publishers didn’t change their pricing system in response — the point appears to be that only Apple was big enough to broker a conspiracy. The new filing also repeatedly mentions reports that a Barnes & Noble executive has been deposed by the Justice Department. Earlier court filings stated that a publishing executive had tipped a law firm about the alleged conspiracy — it’s not known if that executive was from Barnes & Nobel.

If the reports of an impending Justice Department settlement are true, this would strengthen the hand of the class action plaintiffs and likely force a civil settlement. Under such settlements, lawyers typically pocket 25 percent of the payout while the rest is distributed in small amounts to consumers who claim it.

The e-book investigation is also before the European Commission and various state Attorneys General. The matter appears poised to come to a head in the next month.

eBooks Opposition to Dismiss Copy

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Hearst, which charges separately for its magazines’ digital editions instead of bundling them with print subscriptions, will immediately begin disclosing to advertisers the total number of paid iPad editions sold each month. “As soon as possible,” it will share further data about “total time spent per reader per issue and average number of sessions per issue.”

For now, Hearst is only releasing digital data about the iPad editions of its magazines, not about other digital editions sold on platforms like Kindle and Nook. Meanwhile, Condé Nast is providing advertisers with data for iPad, Kindle and Nook editions.

In a separate announcement today, the Association of Magazine Media (MPA) released a new set of “voluntary guidelines to drive growth of advertising on tablets.” To start, the MPA recommends that magazine publishers release five metrics:

1. Total consumer paid digital issues
2. The total number of tablet readers per issue
3. The total number of sessions per issue
4. The total time spent per reader per issue
5. The average number of sessions per reader per issue

The MPA recommends that those metrics be released 10 weeks after the newsstand on-sale date for monthlies and seven weeks for weeklies. “Our research tells us that magazine readers continue to engage with their tablet issues as long as a month or more after the on-sale date of the publication and we need data that reflect this engagement,” said MPA president Nina Link.

Hearst, Condé Nast and the MPA’s moves come ahead of expected changes to the Audit Bureau of Circulations’ reporting format for digital editions. If the new standards are approved in a vote this summer, large consumer magazine publishers will be required to break down digital magazine subscriptions and single-copy sales by platform starting in July 2013.

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In the two pieces, Amazon comes across as a highly secretive company — when it is viewed from the perspective of other businesses. Book publishers reading the philanthropy piece today will find new reasons to distrust the company. Consumers may not care as long as they are getting excellent customer service.

The first article, “Amazon a virtual no-show in hometown philanthropy,” says, “As Amazon prepares to turn 18 this summer, it cuts an astoundingly low profile in the civic life of its hometown.”

While Seattle companies like Microsoft (NSDQ: MSFT) and Boeing are actively involved in charitable giving, Seattle Times reporters Amy Martinez and Kristi Heim call Amazon a “giant, silent neighbor”:

Though Amazon is a Fortune 500 company, you won’t find the company’s name on the rosters of major donors to such venerable local nonprofits as the Alliance for Education, Seattle Art Museum and United Way.

The Seattle Times also found no record of significant Amazon donations to the Seattle Symphony, Washington’s Special Olympics, YMCA of Greater Seattle or Forterra, a prominent conservation group formerly called the Cascade Land Conservancy.

Amazon now “leases more office space downtown than any other private-sector employer,” but “won’t even acknowledge how many employees it has in the area.” A philanthropic consultant who worked with Microsoft calls the company a “black box.

Martinez and Heim note Amazon’s attitude may be changing:

In the past year – as The Seattle Times began looking into its charitable giving and shortly after [former City Council member Jan] Drago questioned Bezos at the company’s annual shareholder meeting – Amazon reached out to more than 30 local nonprofits, offering volunteers, in-kind donations and small, often unsolicited, cash contributions.

The second article, “Amazon.com trying to wring deep discounts from publishers,” written by Amy Martinez, examines Amazon’s increasingly important role in the world of book publishing as it becomes a book publisher itself.

Most of the piece doesn’t come as a surprise to anyone who’s been following the company closely, but Martinez interviewed two small book publishers who have been fighting with Amazon over the company’s demand for better terms.

“Publishers rarely criticize companies they do business with,” Martinez notes, but “some say they’re speaking out against Amazon partly because they’re offended by its tactics. They describe Amazon’s demands — made in e-mail, with no personal-contact information provided — as overly aggressive and leaving almost no room for discussion.”

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It is bringing TVCheck, its smartphone app for checking in to TV shows, from France to the UK.

TVCheck asks users to point their phone’s camera at TV screens to identify shows by cloud-based signal processing, so they can share their viewing habit to social networks and interact with shows on the phone.

The app has garnered nearly 100,000 downloads since release in France last year, Orange business development director David Nahmani told paidContent, declining to disclose remaining active users.

In France, Orange has both a popular IPTV service and a mobile network to which it could have allied TVCheck but hasn’t. Neither will the app be bundled with Orange UK handsets, Nahmani said.

The idea is to ensure all comers can use it. To that end, it will be available to non-Orange customers through both iOS and Android. But, minus, the carriage that Orange’s services could have given it, TVCheck may be challenged to compete with GetGlue and Zeebox in particular.

Nahmani told paidContent TVCheck’s USPs over rivals are in-buit gamification, simplicity and show recommendation features. The app can recognise TV ads so the door is open to potential commercial tie-ups – just as Zeebox recently launched – Nahmani added, but Orange wants to try gathering a user base before committing to a revenue plan.

“We can imagine premium=access content, premium voting, advertising – but all those activities will come later,” Nahmani said.

He is trying to strike partnerships with broadcasters which he hopes might want to include interactive features relating to their shows in the app – again, just like some others apps are doing.

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The company owns 100 percent of DirecTV Pan Americana, an operation with 4.1 million subscribers covering the West Coast of South America and including such countries as Columbia, Argentina, Venezuela, Chile and Ecuador. It’s a 93 percent stakeholder in SKY Brasil, which touts 3.8 million subscribers. And it owns 41 percent of SKY Mexico, which has another 4 million subscribers.

Bringing $5.1 billion in revenue in 2011, the entire Latin American region represents only a small portion of DirecTV’s $27.2 billion in total income, with the U.S. still supplying the lion’s share at $21.9 billion. But the LatAm revenue stream is growing, nearly doubling from $2.9 billion in 2009. Meanwhile, DirecTV added 590 million Latin American subscribers in the fourth quarter alone.

DirecTV’s infiltration into the region has provided enough of a model for other U.S. media companies that Netflix (NSDQ: NFLX) signaled it out as its poster child for its own expansion into the region during its fourth-quarter earnings report.

El Segundo, Calif.-based DirecTV sees key growth advantages in Latin America:

For one, the region does not have a lot of entrenched competition from technologically savvy cable companies, and DirecTV has an opportunity to be an industry leader in a pay TV industry that has room for development. In Brazil, for example, penetration of cable, satellite and telco TV is only around 22 percent. But with per-capita income rising — it was up 2 percent last year — the company projects the level of pay TV usage in the country to jump to 35 percent by 2015.

Another factor: Latin America also lacks what DirecTV officials call “programming choke points.” These include expensive carriage fees for regional sports channels, since many of region’s popular sporting events are on free-to-air television. The area is also free of broadcast network re-transmission negotiations.

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“Completely out of the blue, Amazon have told us they have decided to stop publishing any new newspapers on the Kindle indefinitely, worldwide,” says Gannett’s Herald & Times Group of Scotland, which was awaiting approval for its Kindle edition.

The Herald & Times says Amazon has suspended its approval of black-and-white editions submitted by publishers while it works through a backlog of submitted titles and reprioritises resources – a closure that is supposedly not permanent but which may be long-term.

But Amazon tells paidContent: “That’s not true — we are accepting newspapers on Kindle.

“However, we are not always able to immediately launch every publisher who contacts us using our more heavyweight integration method. For publishers that want to add their newspaper onto Kindle in self-service fashion, they can also do so via the Amazon Appstore for Android.”

Herald & Times Group, which publishes the Glasgow Herald, Sunday Herald, Evening Times and integrated HeraldScotland.com, submitted its edition two months ago and had since progressively tweaked it to Amazon’s requests. It is frustrated that, despite this back-and-forth, it received notice the edition will now not go live.

The Newspapers section of the Kindle Store currently carries nearly 200 newspapers.

Many publishers have come to operate a strategy of availability on multiple devices. Across those devices, Kindle is low in publishers’ priority list compared with iPad, but important compared with other platforms.

Somewhere between Herald & Times Group’s claim and Amazon’s statement may lay the truth. It sounds as though Amazon is facing some issues managing an influx of Kindle newspaper and magazines that include both content feeds and digital replicas. And publishers who want their papers to be available for sale immediately may have to publish them as colour Kindle Fire tablet editions for now.

Publishers have also become well used to dealing with Apple’s back-and-forth app approval process.

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In a joint message featured on the front page of Current.com, Gore, the network’s chairman, and Hyatt, who took over again as CEO in recent months, tell viewers:

We created Current to give voice to those Americans who refuse to rely on corporate-controlled media and are seeking an authentic progressive outlet. We are more committed to those goals today than ever before.

Current was also founded on the values of respect, openness, collegiality, and loyalty to our viewers. Unfortunately these values are no longer reflected in our relationship with Keith Olbermann and we have ended it.

We are moving ahead by honoring Current’s values. Current has a fundamental obligation to deliver news programming with a progressive perspective that our viewers can count on being available daily — especially now, during the presidential election campaign. Current exists because our audience desires the kind of perspective, insight and commentary that is not easily found elsewhere in this time of big media consolidation.

They also introduced his replacement, former New York Gov. Eliott Spitzer, and went on at length about the wonders of an election-year Current sans Olbermann. (Safe to say, after his performance with Sean Parker at SxSW, the former VP won’t be doing his own interview show any time soon.) What they don’t really address is their own role in a hiring that seemed like a stretch when you got beyond Olbermann’s liberal status and his following.

Olbermann’s reply via Twitter was swift, a series of 11 tweets summed up in one long statement promising legal action:

I’d like to apologize to my viewers and my staff for the failure of Current TV.

Editorially, Countdown had never been better. But for more than a year I have been imploring Al Gore and Joel Hyatt to resolve our issues internally, while I’ve been not publicizing my complaints, and keeping the show alive for the sake of its loyal viewers and even more loyal staff. Nevertheless, Mr. Gore and Mr. Hyatt, instead of abiding by their promises and obligations and investing in a quality news program, finally thought it was more economical to try to get out of my contract.

It goes almost without saying that the claims against me implied in Current’s statement are untrue and will be proved so in the legal actions I will be filing against them presently. To understand Mr. Hyatt’s ‘values of respect, openness, collegiality and loyalty,’ I encourage you to read of a previous occasion Mr. Hyatt found himself in court for having unjustly fired an employee. That employee’s name was Clarence B. Cain. http://nyti.ms/HueZsa

In due course, the truth of the ethics of Mr. Gore and Mr. Hyatt will come out. For now, it is important only to again acknowledge that joining them was a sincere and well-intentioned gesture on my part, but in retrospect a foolish one. That lack of judgment is mine and mine alone, and I apologize again for it.

Olbermann and Hyatt gave every appearance of a meeting of the minds when I interviewed them together at paidContent 2011. They were still in a honeymoon phase and Olbermann, who stayed off video for several months between MSNBC and Current, was months away from launching his show. That show involved rebuilding studios, hiring a New York staff and more.

It was an attention-getting move that caused some to think again about Current and certainly hiring Olbermann put the network, which has yet to have its real break through, in the spotlight. But it also put it on the hot seat. Building a network on ideals, worth a shot. Hinging it on one volatile personality, not so much. Olbermann is right when he points to a resume that show how long he’s worked with some people and when he challenges his labeling as peripatetic. He’s also charming, amusing, incredibly bright, knows his baseball, reads James Thurber stories out loud, and has seen the Book of Mormon an unfair number of times.

But he’s also had a series of confrontations and missteps that often make the story more about him, than about any network or its goals.

Al Gore and Joel Hyatt knew that when they courted him. Whatever the reasons for the ultimate split — and I doubt it’s as one-sided as either party wants it to appear — they had to know honeymoons end.

As for Olbermann, he may miss cable networks for a while but he always has the Net.

Olbermann and Hyatt spoke at our paidContent 2011 conference, where they explained how Olbermann joining Current was a match made in heaven.

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Emphasizing the creation of digital content based on writer Suzanne Collins’ popular source novel in lieu of more expensive ad buys, Lionsgate may have created a template for other studios to follow

“I can’t emphasize enough what they were able to accomplish with so little money,” said a marketing executive for a rival studio.

So what did Lionsgate do that was so impressive?

By now, every film studio in Hollywood has the basic tricks up their sleeve regarding use of social media. The game plan is essentially to buy promotion through Facebook and Twitter. And through those platforms, create and distribute inexpensively produced digital assets related to your film, like interactive games and still images, and get a core group of fans to start passing those elements around weeks or months before the movie comes out.

To amplify the impact of these campaigns, studios will pay the big social platforms — for Facebook, for example, they’ll often give up more than a doller per “like,” creating an illusion of social media buzz.

Lionsgate’s campaign differed from most movie campaigns because it created, well, actual social media buzz. The key: instead of paying for likes, the studio put its resources into creating rich-media elements that far outstrip the ambition of simple games and other movie collateral, such as an interactive tour of the source novel’s “Capital,” which was accessible through Facebook, Twitter and YouTube (NSDQ: GOOG). The tour wasn’t a movie ad — it was an interactive experience rendered from the book with painstaking detail.

“They simply appreciated the value of the book and fleshed out its world with a massive amount of content that’s designed to live on the web, well beyond what you see in the film itself,” the rival studio marketer said. “They activated the core fan base from day one, fired them up and let them carry the message to their friends, which in turn grew the fan base.”

In typical studio fashion, Lionsgate won’t reveal what it spent to create this premium content. But another rival studio executive told us it was a fraction of what a typical major-release digital campaign might entail.

Promotional costs for a big Hollywood movie typically exceed $100 million. But Lionsgate, a so-called mini-major, coming off a series of bombs, doesn’t have that kind of money. It had to make do with a marketing budget of around $45 million, with a typical allocation of 8 to 10 percent of that going to digital media spending.

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“No one forced the plaintiffs to give their work to The Huffington Post for publication and the plaintiffs candidly admit that they did not expect compensation,” wrote U.S. District Judge John Koeltl, adding that the bloggers were writing for exposure.

The lawsuit was filed last April and sought to force Arianna Huffington and other owners to share some of the $315 million they pocketed when AOL (NYSE: AOL) bought the site.

The plaintiffs claimed that the HuffPo’s use of unpaid bloggers amounted to unjust enrichment and unjust business practices.

The case was brought on behalf of 9,000 Huffington Post contributors by Jonathan Tasini, a writer who won a famous 2001 Supreme Court case that forced publishers to pay freelancers for digital works.

A Huffington Post spokesperson offered the following comment:

“This judgment removes any question about the merits of this case and we look forward to continuing the mutually beneficial relationship we share with our growing roster of interesting, dedicated and engaging
bloggers.”

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In three lawsuits filed this week, Unifi Scientific Batteries claims that Amazon (NSDQ: AMZN), Barnes & Noble (NYSE: BKS) and a group of phone and tablet makers violate US patent 6791298, “Monolithic battery charging device.”

The patent appears to relate to a process for recharging a battery:

A monolithically formed battery charger may be fabricated as an integral part of a multifunctional integrated circuit or as independent monolithically formed integrated circuit. The monolithically formed battery charger includes at least one step-down converter having a given duty ratio coupled to a battery-terminal interface that provides a stepped-down output voltage and current that may be used to charge a rechargeable battery.

The patent was issued in 2003 and has since passed through a series of shell companies until it was acquired by Unifi last October. Companies like Unifi, known as patent trolls, typically serve as alter-egos for lawyers and investors that make a business of collecting patents and suing companies that produce goods.

The other defendants and products named in the lawsuit are: Research In Motions’ Playbook and Storm 9530; Barnes & Noble’s Nook; Samsung; Texas Instruments; HTC; Nokia; (NYSE: NOK) Sony.

Apple (NSDQ: AAPL) and Microsoft (NSDQ: MSFT) were not named in the lawsuits.

The lawsuits were filed in the U.S. District Court for Eastern Texas which has long been a popular venue for patent trolls.

Here’s a copy of one of the complaints:

Unifi v RIM and Phone Industry

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