Defense Against Litigation Mill O+Z
I run a home business working as a bookscout for the handful of US textbook wholesalers. I have been in business since 2006, upon moving to the state of New Mexico for sake of climate to accomodate chronic health problems. This has never been an especially profitable business, particularly in the past two years, but disabled people have few choices and it was something that suited my abilities, let me climb out of the slow-death-spiral of SSI, and allowed me to rent a small adobe cottage on the outskirts of Santa Fe. I live alone and have no immediate family.
Last year I was contacted by the law firm Oppenheim + Zebrak in Washington DC, representing the college textbook publishers Cengage, McGraw-Hill, and Pearson. Initially contacting me by email, they accused me of distributing counterfeit books. At first, this was confusing as their letter referred to years of prior corresponse that had never happened. I replied asking if they were confusing me with somone else. Strangely, they simply told me to ignore those parts of the message but that the rest was directed at me.
They demanded I send them all remaining copies of several dozen books in a dozen or so titles I had sent several months previously to a few of my wholesale buyers. I had purchased these on-line from a well established vendor in Colorado who I had found on Amazon and who had a high rating. The books seemed perfectly normal, were in their original shrink-wrap (which I'm not supposed to tamper with), and I had recieved pre-approval to send some of them based on sample copies. I even contacted the publisher Pearson to confirm that they were indeed using what looked like a new kind of binding on some books. However, following a newly imposed policy by the publishers, one wholesaler sent some of my books to the publishers for evaluation--as I later learned, because they had appeared on a watchlist the publishers had started sending them. The others simply sent books back without explanation.
In late 2013 a counterfeit book scare began to develop in the book market with the supposed appearence of some extremely high quality fakes. Pirate books have long been a problem in the book industry, but convincing fakes were, until then, almost unheard of because they required production equipment of the same type and scale as used by the publishers themselves--an investment of millions of dollars for any would-be counterfeiter. These new books were purportedly indestinguishable. In fact, the wholesaler could never explain what, exactly, was wrong with these suspicious books and the publishers themselves required a couple of months to perform whatever examination process led to their determination. To date, neither O+Z or the publishers have provided me with documented evidence of what indicated these books were fake.
After providing my proof of purchase and sending the remaining books as demanded to a NJ warehouse owned by Pearson, they began insisting I was liable for fines for distribution even though no sales had taken place and all books purchased from the vendor had been accounted for. Sales to wholesalers are conditional. Books must pass inspection before payment is made. Bookscouts have been around since the 1920s and the industry has long had a simple process for dealing with pirate books. If a wholesaler determined books were fake, they would be immediately destroyed, their copyright info page torn out and sent as proof to the publishers. Only in 2014 did this change with this sudden counterfeit scare.
Eventually Mr. Oppenheim contacted me by phone to demand an impossible settlement of hundreds of thousands of dollars, claiming that, based on a theory he called 'indirect infringement', I was liable regardless of where or how I obtained these books, their quantity, whether or not I could distinguish them from legitimate books, or whether or not they were sold to anyone else. None of that mattered. According to him, any contact with a fake book, regardless of context, would make you liable.
This is an extremely dangerous concept. It's not possible to know the whole provenance of most products. By this reasoning everyone, college students especially, who buys books on-line from places like Amazon is in legal jeopardy. Even campus bookstores sell used books they don't know the whole history of. Everyone is a potential target at these people's whim. That is particularly disturbing for those students who have been active in the growing textbook price protest movement and who routinely advocate buying books on-line.
To top it off, Mr. Oppenheim also suggested that I should have known these books were suspicious simply because they were priced below market value. As any student who as sold his books after semester knows well, the value of textbooks varies greatly. With storage space expensive and books so frequently obsolesced, off and on semester values for books can vary by as much as several hundred percent. This fact is the entire basis of the independent textbook market.
Since there was no possible way for me to pay such a settlement, there was nothing I could do. No one at this law firm would discuss anything in a civil manner, dismissing all facts that didn't suit them. At great expense, I hired a local attorney to attempt to reason with them. They merely mocked and insulted him. Eventually, they fell silent, apparently moving on to fry bigger fish, then returned six months later to harass me again with more demands and allegations. Depleting my savings, I again hired an attorney to try and reason with them and, as before, they only mocked and insulted him. Again, I had no way to meet their impossible demands and they fell silent for a time.
A couple weeks ago I received a summons for a case filed against me in Massachusetts Federal Court. The details of the complaint are bizarre. Apparently the dubious accusation of indirect infringement was not sufficient to make this case seem worthy of trial. So they embelleshed things to include accusations never discussed in any previous communication, crafting a wild narrative suggesting I was behind some massive international book laundering operation like something from a James Bond film. They dragged in the names of two contract employees I had previously hired to help with book shipping--one I had not employed for a couple years. They even implicated a pack and ship service I had not used in many years, characterizing them as a 'textbook laundering front.' They seem to be counting on my inability to fight back to avoid any scrutiny of these bizarre self-contradictory claims.
Why O+Z persists with this case is unclear. My life is an open book. If they performed any due-dilligence they would have to know full well that they have been harassing a disabled person with no great savings. If the publishers intended to put me out of business, all they needed to do was demand the wholesalers I deal with ban me. To date none have, even though bookscouts are easily replaceable and most of them are fully aware of my case. Even making some kind of example of me make no sense the only other people in the industry aware of me are the managers of those few wholesale textbook companies. So what's the point? One can only speculate on these peoples' intentions, but O+Z is well known across the book industry as the textbook (pun intended) definition of a litigation mill and their efforts are vast and sytematic. If they have no problem going after people like me to prove this legal theory, it seems very likely the students are next.
Help me put a stop to this madness. I cannot afford a defense alone and any summary verdict in this case will destroy my only source of income, force me into bankruptcy, and leave me homeless. The attorney I have consulted with could find no one to take this case pro bono. My only hope of fighting back is to raise funds for a defence through this GoFundMe campaign. I am told this will require at least $80,000, and time is short. This is my last chance.
I am also calling out to the publishers represented in this suit; Cengage, McGraw-Hill, and Pearson. Do you think exploiting the legal system to railroad a disabled person is in any way good for your public image? If you sincerely believe the facts in this case and beleive you are right in this use of indirect infringement, then contribute to this campaign and see that this gets a full and honest hearing in court. Anything less makes you look like school-yard bullies shaking-down kids for lunch money. Your relationships with the wholesalers are already the worst they have ever been. None are following your demands any longer because of the disruption O+Z causes. Instead, books are being returned and sent back up the supply chain where they end up dispersed and into students hands, increasing their jeopardy. You are responsible for exacerbating the counterfeit problem and making a mess for all those other pubishers legitmately trying to stem the fake book tide. We bookscouts are who you should be cooperating with to intercept these books.
Note also that I am pledging all funds recieved in this campaign and not used for this defense to the non-profit organization ISKME (Institute for the Study of Knowledge Management in Education) and their OER Commons program for open educational resources. The ultimate solution to textbook price escalation is putting their publishing back into academic hands.
Thank you to all who have taken the time to read this.
I don't know what is supposed to happen now. There's no money for them to take. I still do not understand the point of this case or what these despicable people thought they were accomplishing. All they've done is railroad a randomly chosen disabled person with no money and drive them to homelessness. I only know that they've done this many times before, and they will just keep on doing it to others until someone steps up who can stop them. All I can do is hope that someone in authority somewhere questions what is going on here. But unless the news media picks this up and runs with it, I doubt that will happen. I've written to about two dozen newspapers, TV news networks, and blogs and no one seems to care.
As I pledged at the beginning, I have sent a donation to the Institute for the Study of Knowledge Management in Education and their OER Commons in the amount I collected on both GoFundMe and Funded Justice. Included with this post is a screenshot showing proof of my payment. It's not much, but if it does anything at all to advance the development of open source educational resources then I've at least succeeded in dragging something good out of this.
So I guess my life is done now. There's nothing else I can do. I hope this campaign has reached a few people who will think of this the next time they consider buying a book or investing in Cengage, McGraw-Hill, and Pearson. They, and their lawyers, are the cancer afflicting higher education in this country.
Today, Dec 23, I received a copy of a proposed verdict for this case drafted by O+Z awarding these publishers about two million dollars in damages. Of course, given how these things are written, it took me a bit to realize this was labeled a 'proposed' verdict with no dates or signature by any judge, ensuring I got the full emotional effect of Mr. Oppenheim's delightful holiday gift. I also noticed that, though the filing for default judgement was in October, this document had only been written and filed on Dec 21st. The timing was deliberate and the intent here plain. Unfortunately Mr. Oppenheim made one mistake. Krampus is supposed to do his diabolical work on the 5th of December, not Christmas Eve.
How these people have arrived at a two million dollars in damages is beyond me. They seem to have blamed me for every single supposedly fake book a couple wholesalers ever received in an entire year. Many hundreds of books I never dealt with. And while affidavits included boilerplate statements from the publishers, there were no statements from the wholesalers they claim to have received evidence from--wholesalers who are still buying books from me today. As usual, the details in this hopelessly sloppy case are a grand mess.
Still no news as to what's going on with this case. No one from the court has made any attempt to contact me and it's been a long time since the last mail from O+Z. Probably all part of their standard terrorism strategy.
Actually sounds to me as if O+Z doesn't actually HAVE a staff per-se or much of an office. Have you checked with someone in DC to see if it's actually a "legal" office and not just someone running a front? Yes they can say all the right words and make everything look legit but they could in fact NOT be a legal law firm or be able to actually pursue a case in court. Stranger things have happened.