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The French Connection
For most of the worst business decisions in history—think “new Coke,” “waterproofing the circus tent with gasoline and paraffin,” and “everything about the Edsel starting with the name”—the collective public reaction can often be best summed as “What were they thinking?”
Two previous dispatches, Dishonor, and Actions Speak Louder, describe the ongoing dispute with Hachette Filipacchi Media (HFM) for their admitted copyright infringement. Those dispatches are replete with HFM actions that provoke consternation. Last week two more decisions were heaped on the pile. One involves the form letters of two HFM executives, the editor of SHOCK magazine, Mike Hammer, and the CEO of HFM USA, Jack Kliger. The other involves a decision made by Borders to allow their bookstores to act as fences for HFM’s illegal material in SHOCK magazine.
Jack Kliger, the President and Chief Executive Officer of HFM US, came out swinging at me personally, in a letter circulated to media and retailers last week. In it Kliger makes almost as many accusations about me as he does misstatements of fact and law. It is important to note that he sent this missive after admitting that his company illegally took my work, and knowing that by virtue of continuing to promote and sell my work, his company is guilty of ongoing willful infringement. He doesn’t mention that part when he encourages retailers to stick with HFM, in effect making them his accomplices in selling stolen goods.
Jack is audacious, Jack is rich, and Jack is powerful. But Jack, who has enjoyed a long career of getting away with everything, has finally crawled through the wrong window in search of loot.
He and the editor of SHOCK have both issued written statements claiming that I broke the deal in order get publicity after they had complied with all the terms of the proposed deal. They are the ones who walked away from negotiations and if they dispute this I will publish the letter from their attorney.
These men are misrepresenting both the reasons for the breakdown in talks and the laws that govern copyrights in the United States, in particular the US Supreme Court Case Tasini vs. The New York Times. Their company’s illegal usage of my work in multiple formats is current and ongoing, as just a quick visit to their websites here and here proves.
Hachette’s henchmen can claim that I am only fighting them because I want publicity, but in fact it was a search for publicity that led them to illegally take my work when their search for advertisers had failed so miserably. The settlement with Polaris and the numerous cases of infringement I’ve resolved quietly and professionally without any public word show Kliger’s accusations to be false. The fact that Jack Kliger’s first tool is a smear, with insinuations based on falsehoods and bad research on his part, is another illustration of the underhanded way Hachette Filipacchi does business.
Jack is well enough acquainted with the law to know he is breaking it. Jack Kliger is neither nimble nor quick. How does someone like Jack get to run a $550 million company? And why is a company that smears our military in order to sell copies of their gross-out tabloid allowed to sell any magazines on our military bases?
Although Kliger’s letter failed to persuade the managers of 10,000 stores who responded to the e-mails and calls from outraged customers and pulled the magazine, it did manage to lure two distributors to cross the line into actionable turf. Last week we learned that two bookselling chains, Borders and Indigo/Charters (a largely Canadian enterprise) are joining Jack in breaking the law.
A concerned citizen wrote to Borders, and then forwarded Borders’s response to me. Unbeknownst to the citizen, my representatives had also sent Borders a second demand notice with a copy of the copyright registration attached. Despite this communication from my attorney, Borders cited the First Amendment as grounds for their decision to display and sell a magazine that by the publisher’s own admission is comprised of stolen goods.
Borders has a consistency problem when it comes to draping itself in the First Amendment. The last time this bookseller was in the news for pulling magazines from their shelves the First Amendment also came up, but in that case they stated publicly that concerns for the well-being of their Muslim customers outweighed any allegiance to the First Amendment. The decision caused some controversy which might explain their reluctance to extend the same concern to customers who are veterans, active duty military or the friends and families of both. This attempt to hide behind the First Amendment is so far off point as to provoke a What could they be thinking? Selling those magazines with my work is illegal, period.
This isn’t about free speech, it’s about copyright infringement. It’s about right and wrong. All of these retailers are vigorous in pursuit of shoplifters so they understand the impact of having property taken from them. A store owner can be an innocent infringer up until we inform the violator that the merchandise on his shelves violates US law. I intend to pursue any business, at any point in the chain of custody of my purloined property, who tried to profit from this violation. That includes those retailers who refuse pull the magazine from circulation.
Rite Aid agreed to do the right thing, including the permanent removal of the magazine, and so I personally told Rite Aid that I would not demand a dime from them, even though under the law I can because they sold some copies. But after Rite Aid became aware of the dispute, they were professional, courteous, and decisive. I will go out of my way to shop in Rite Aid stores.
Jack Kliger would likely not want the world to know that huge amounts of his other titles are sold through US military bases, and that if military members were to demand the removal of all HFM titles such as Car and Driver, Road & Track, Woman’s Day, Flying, Boating, and Elle, the impact would be utterly devastating, rippling through advertisers, and through to company shareholders. Jack Kliger, by doing business in deceptive and duplicitous ways, has literally picked a fight that could—if service members, veterans and their families get serious—hobble the HFM behemoth, and possibly even destroy it.
HFM’s many competitors must be gleeful at the real possibility that HFM could suffer catastrophic losses that will free up advertiser dollars. Service members have been complaining for years that they get a bad rap in the press. This is a moment of truth. Our service members, veterans and their families could topple a spin-staggered French mega-heavyweight that denigrates them with SHOCK, while seducing them with Car and Driver, Road and Track, Woman’s Day, Flying, Boating and others. If our people are willing to kick HFM off the bases, the world media is watching. US Military vs. French media—who will win?
