Earlier this week, we posted about eBay seller "Med Express" suing a customer for leaving accurate, but negative, feedback on eBay. We found the story from Paul Levy's original post on the Public Citizen website, and a bunch of other sites picked up on the story, including our friends at Popehat and Ars Technica.

Yesterday, Richard Radey, the President of Med Express made the rounds on all of those sites, including ours, issuing what may appear to be a heartfelt apology, saying that he never intended the customer to be a target, that the company fully supports any and all feedback, and that he had not read the actual lawsuit until the issue got attention. He also claims that he was trying to deal with a separate, but related issue in getting eBay to remove a "Detailed Seller Rating" which impacts how much Med Express has to pay. He claims that the "low ratings caused us to lose our Top Rated Seller Plus" standings, which could lead to "a potential fee increase of tends of thousands of dollars over the course of the year." And, he claims, the only way to remove those "is by court order" and he "was told that such court orders were not uncommon." He concludes:

The only person to blame here is me. You have spoken and I have listened. A terrible wrong needs to be righted. I am instructing our attorneys to drop the lawsuit. I want to assure everyone that you may feel free to leave any feedback on our company without fear of reprisal. I have learned my lesson.

That certainly sounds sincere. But is it? The first thing that struck me was that he said low ratings, plural -- not the single low rating we had heard about. And, indeed, Paul Levy has presented a compelling argument that Radey's apology raises more questions than it answers. First off, he discovered that Med Express has been filing similar lawsuits for years, all against customers who leave ratings that Med Express does not like. In one, quite incredible, case, they even sued a guy who left an accurate neutral review. Yes, it wasn't even negative. And the company still sued.

Of the current crop of lawsuits, the suit against Nicholls isn’t even the worst.  I haven’t yet been able to see the original documents from the transaction on which Med Express’ lawsuit against Guam resident Tan Jan Chen is based, but the lawsuit against Scranton-area resident Dennis Rogan is over a two-word “neutral” buyer feedback stating “Order retracted.”   Apparently, Rogan bought a piece of equipment on eBay but Med Express had to refund his money because, as it explained in a message accompanying the PayPal refund, “This should not have been still listed—we removed this item a few weeks back-it broke.”   As in Nicholls’ case, the statement over which Med Express sued for libel was true, but even worse than in Nicholls’ case, Rogan had not even left “negative” feedback. 

Rogan could have suggested that the advertising and sale of an item that the seller knew it could not deliver violated FTC rules for mail-order merchants, but he gave the company the benefit of the doubt while concluding, at the same time, that other customers ought to learn that Med Express cannot always be trusted to have the goods that it is advertising.  His generosity did not prevent Radey from signing an affidavit averring that the neutral feedback and negative statement were “false,” attempting to get an injunction requiring that the feedback be taken down, and demanding an award of compensatory and punitive damages as well as attorney fees—not the $1.00 in nominal damages that Radey claims are all that he wanted his lawyer to seek against Nicholls.

Yeah, also, that signing an affidavit thing is a problem. Radey suggests in his apology that he didn't know what was going on, and seems to imply that this was a one off thing. But based on Levy's research, we see a long list of similar lawsuits -- and they include affidavits signed by Radey. So for him to claim he was unaware of what was going on seems quite questionable.

In the meantime, it appears that the customer who was at the center of the original lawsuit, Amy Nicholls, has found highly qualified pro bono help in the form of Tom Haren and Jeffrey Nye, and they've already filed a response and counterclaims. That also means that, even if Radey wants to dismiss this lawsuit, he can no longer do so unilaterally. If Nicholls, represented by Haren and Nye decide to pursue this, Radey may really regret trying to silence customers.

Many of us are still waiting for a Maxis mea culpa following the horrible release of their always-online SimCity game. When last we checked in with Maxis, they were busy pretending that all of the backlash surrounding this complete mess of a release didn't exist and that tons (tons!) of people just loved all the features in the game that didn't work. Well, they're back to blogging again, and while it is only an apology in the barest sense of the word, they are offering up some freebies for their throngs of pissed off fans.

Our SimCity Mayors are incredibly important to the team at Maxis. We sincerely apologize for the difficulties at launch and hope to make it up to you with a free PC game download from Origin.

This, of course, falls short of the full apology they should be making, which would be to say that lying their faces off about why the game always needed to be online (since it didn't) was wrong, as was their presumption that their fans needed to be treated like criminals. But, hey, baby steps, I guess. So what games are you offering up for free?

-Battlefield 3 (Standard Edition)
-Bejeweled 3
-Dead Space 3 (Standard Edition)
-Mass Effect 3 (Standard Edition)
-Medal of Honor Warfighter (Standard Edition)
-Need For Speed Most Wanted (Standard Edition)
-Plants vs. Zombies
-SimCity 4 Deluxe Edition

...Really? As an apology for selling a game with an always-online requirement for a city building simulation, which we now know doesn't actually need to be online at all, you're offering up the previous version of the game which didn't have that requirement? And, based on what I can see from the general reviews, received far superior reviews? Why bother releasing the new SimCity at all, if the result is pointing people to the last iteration, a better overall product? Have we gotten to the point where you guys are just trying to make us laugh?

Oh, Apple. As someone who (as yet) has no children, it's been an educational experience watching the company's reaction to a UK judge ordering them to put a public apology on their website over false claims that Samsung copied them. From the very beginning, it felt like Apple had gone out of its way to prepare me for raising children. It all started with a little "But, Daaaaad! He's copying me!" Then, once parental admonishment is administered, Apple went into what child psychologists call "pouty-pants mode," with the kind of apology statement that was almost literally playing one parent/country off of another, by which I refer to their referring to the fact that all of the other countries' judges that had ruled opposite of the UK courts. And when the UK courts were less than thrilled with that petulance, they issued another apology, with a link buried at the bottom of the page -- using a little javascript magic to ensure that you wouldn't see it unless you were specifically looking for it. If this isn't a perfect analogy for a young child mumbling a half-hearted apology to his little brother for kicking him, I don't know what is, but I thank Apple for all the lessons in child-rearing they've given me. I feel, having watched the judge in this case, I have a good understanding on how to handle a petulant child.
"Cry all you want, no dessert until you issue your mother a web-based apology, you little poop-machine"
Image source: CC BY 2.0 The good news is that Apple has quietly removed this digital monument to foot-stomping, but only after Hacker News and Reddit blew up about it. Apparently, at some point since Monday, amidst the kind of backlash normally reserved for US Senators discussing women's health issues, Apple pretended like the whole thing never happened.

As pointed out by CNET, the Javascript code in question is still on Apple's site, but it just isn't being used any more. The code ensured that the iPad mini advertisement would take up the whole page; regardless of your resolution, you would't be able to see the statement without scrolling down the page.

While the code's main purpose wasn't necessarily to hide the apology (Apple has been pushing a more vertically-responsive design on its international sites for a while now), it's very likely that putting the text in question at the bottom of its UK site, where the code would hide it, was on purpose. Apple's decision to stop using the code, in fact, points to this being the case.

Way to go, Apple. You managed to get to the place you should have been all along in the most petulant, drawn out way possible. Exactly what I would have done...back when I was six years old.

Apparently Apple didn't need two weeks to put up a new "apology" statement on its UK website after the first obnoxious one was deemed not good enough by the UK courts. As you may recall, Apple was told by the court that it had to tell the world that Samsung didn't copy Apple's design on some of its devices, after a judge ruled that Apple's devices were simply much cooler.

Apple has now put up its new statement and linked to it from its UK home page in a large font. The full statement is a lot shorter and doesn't include anything about how "cool" Apple's products are or the other court cases around the world. It has also admitted that the first statement was "inaccurate and did not comply" with the original court order: Of course, it appears that Apple couldn't resist an attempt to continue to be slightly petulant in doing this, though it did so in a way that it hoped the judge wouldn't notice, by hiding it in the javascript. However, as the eagle eyes at Hacker News and Reddit quickly pointed out, Apple had added a bit of javascript to make sure that, no matter how big you enlarged the browser window, the link to the apology and the statement about it were below the fold. That is, there is no way to view that statement without first having to scroll down on the Apple page.

To be honest, I find it a little silly that the judge is requiring this statement at all. It seems to be going beyond what's reasonable already (and it seems wrong to require Apple to put a statement on its own website). Anyone who really cares about this stuff will see the news. That said, I find Apple's response to this ridiculous and that much more perplexing. Each attempt to somehow not fully comply with the judge's demand just calls that much more attention to the situation and the fact that Apple lost and Samsung didn't copy it. If Apple had just complied normally, this story would already be over.

Last week we noted that Apple had put up a rather petulant non-apology apology in response to the UK court order requiring it to advertise to the world that Samsung didn't copy Apple in making its devices. Many people wondered how the court would react to Apple's attempt... and the answer is that the court is not pleased (and is further displeased by Apple's claim that it needs two weeks to come up with something better):

At a hearing in the court in London on Thursday morning, the judge told Apple that it had to change the wording of the statement within 48 hours, carry it on its home page, and use at least 11-point font.

Apple tried to argue that it would take at least 14 days to put a corrective statement on the site – a claim that one judge said he "cannot believe".

The full quote from the judge was, apparently:

“I would like to see the head of Apple make an affidavit setting out the technical difficulties which means Apple can’t put this on. I just can’t believe the instructions you’ve been given. This is Apple. They cannot put something on their website?”

Another report shows that the judge reviewing this made his views of Apple's notice abundantly clear:

“I’m at a loss that a company such as Apple would do this,” Judge Robin Jacob said today. “That is a plain breach of the order.”

Apparently, the London appeals courts have some sort of antidote to the standard Apple reality distortion field.

As a UK court recently ruled, Apple's UK website is required to post a notice about the court ruling that Samsung didn't copy Apple's design with its devices. Apple has now complied with a tiny link in the page footer: The notice itself is amusing in its somewhat passive aggressive tone. It first notes the court ruling, and then explains:

In the ruling, the judge made several important points comparing the designs of the Apple and Samsung products:

What kind of important points? Well, all the ones about how Apple's products are awesome, while Samsung's... not so much.

"The extreme simplicity of the Apple design is striking. Overall it has undecorated flat surfaces with a plate of glass on the front all the way out to a very thin rim and a blank back. There is a crisp edge around the rim and a combination of curves, both at the corners and the sides. The design looks like an object the informed user would want to pick up and hold. It is an understated, smooth and simple product. It is a cool design."

"The informed user's overall impression of each of the Samsung Galaxy Tablets is the following. From the front they belong to the family which includes the Apple design; but the Samsung products are very thin, almost insubstantial members of that family with unusual details on the back. They do not have the same understated and extreme simplicity which is possessed by the Apple design. They are not as cool."

And then... it reminds you that other countries have ruled completely otherwise:

However, in a case tried in Germany regarding the same patent, the court found that Samsung engaged in unfair competition by copying the iPad design. A U.S. jury also found Samsung guilty of infringing on Apple's design and utility patents, awarding over one billion U.S. dollars in damages to Apple Inc. So while the U.K. court did not find Samsung guilty of infringement, other courts have recognized that in the course of creating its Galaxy tablet, Samsung willfully copied Apple's far more popular iPad.

In other words, it's the petulant Apple "complying" with the UK judge, while at the same time making sure to add a "but, but, but... the judge is really wrong -- other than the part where he likes our design."

Yesterday, we wrote about the Slovenian ambassador to Japan, Helena Drnovsek Zorko, apologizing for signing ACTA last week in Japan. We later updated the post with a link to a Google translation of her apology that was a bit confusing. However, she's also posted a version in English, in which she admits that she signed it because her government told her to, and "out of civic carelessness" in not bothering to understand what ACTA meant before signing it. She talks about being overworked, and apologizing to her children for signing ACTA. She also expresses exasperation at the fact that the hatred of many people has been directed at her, rather than at her government and others who actually created ACTA. The whole thing is worth a read, so we are posting it in its entirety below:

On Thursday, 26^th January, 2012, I signed the Anti-Counterfeiting Trade Agreement (ACTA) on behalf of the Republic of Slovenia, following the directive and authorisation of the Slovenian government. A somewhat longer clarification of the signature can be found on the Media section of the Ministry of Foreign Affairs website, which explains the role of the Ministry and my role as the Slovenian Ambassador to Japan.  This explanation states that I signed the agreement because I was instructed to do so by the government, and because it is a part of my job.

And yet, why did I sign ACTA. Every day there is a barrage of questions in my inbox and on Facebook from mostly kind and somewhat baffled people, who cannot understand how it occurred to me to sign an agreement so damaging to the state and citizens. With this reply, which is of a purely personal nature and expresses only my personal views, I wish to respond to all those people, all my friends and acquaintances who have remained quiet, all Anonymous, and not least also to myself and to my children.

I signed ACTA out of civic carelessness, because I did not pay enough attention. Quite simply, I did not clearly connect the agreement I had been instructed to sign with the agreement that, according to my own civic conviction, limits and withholds the freedom of engagement on the largest and most significant network in human history, and thus limits particularly the future of our children. I allowed myself a period of civic complacency, for a short time I unplugged myself from media reports from Slovenia, I took a break from Avaaz and its inflation of petitions, quite simply I allowed myself a rest. In my defence, I want to add that I very much needed this rest and that I am still having trouble gaining enough energy for the upcoming dragon year. At the same time, I am tackling a workload that increased, not lessened, with the advent of the current year. All in line with a motto that has become familiar to us all, likely not only diplomats: less for more. Less money and fewer people for more work. And then you overlook the significance of what you are signing. And you wake up the following morning with the weight of the unbearable lightness of some signature.

First I apologised to my children. Then I tried to reply to those acquaintances and strangers who expressed their surprise and horror. Because there are more and more of them, I am responding to them publicly. I want to apologise because I carried out my official duty, but not my civic duty. I don’t know how many options I had with regard to not signing, but I could have tried. I did not. I missed an opportunity to fight for the right of conscientious objection on the part of us bureaucrats.

But there is a second, very important reason why I am writing this. There has been a demonization of “some sneak”, that is me, who in far-off Tokyo secretly signed something on her own initiative.  This was heard in the Slovenian parliament and in the Slovenian media, and it is spreading on the web. It is dangerous particularly because it conceals the responsibility of those who had the power to decide, and did in fact decide, that Slovenia would be a signatory of ACTA. This was decided by the Slovenian government and by the parliamentary committee for EU matters, and before that, Slovenia was for quite some time involved in coordinating the agreement. All this was done with too little transparency, judging by the outraged responses that have appeared following the signing. Back then, the Slovenian media did not demonise this decision to the same extent as they now demonise my signature. This I consider very dangerous for the continuous (non-)development of democracy in Slovenia. At the same time, this means that I was not the only one whose attention slipped, that we, as Slovenian citizens, neglected our civic duty. And that there may be a little known party in the Slovenian political space that missed an excellent opportunity to gain votes in the recently concluded electoral struggle.

On Saturday, 4^th February, a protest is planned in Ljubljana for those who object to the ratification of ACTA. The true concern and determination of those Slovenian citizens who feel that the agreement must be stopped will be reflected in the number of people who attend this protest. I would like to ask for somebody to please attend in my name. One of my concerned correspondents asked me what my brother, the late Dr. Janez Drnovsek , would have thought of my signature. The struggle to protect civic freedoms is most certainly in the spirit of his heritage, much more so than the removal or non-removal of some statue. Let my example be a cautionary tale of how swiftly we can make mistakes if we allow ourselves to slip. And if nothing else, we then sleep very badly.

 

Helena Drnovsek Zorko

That's quite a statement... I'm still curious if Slovenia can now take back the signature?

You may remember that back in December, CD Projekt (the developers of The Witcher 2) had been sending out legal shake down letters to suspected copyright infringers. This move was not received very well by the gaming press and more importantly CD Projekt's very fans. The major concern over this was that it is nearly impossible to prove that a person illegally downloaded the game based off just an IP address. We now learn that CD Projekt has listened to its fans' concerns and has ended its shake down program. In a letter sent to the gaming press, CD Projekt states:

Being part of a community is a give-and-take process. We only succeed because you have faith in us, and we have worked hard over the years to build up that trust. We were sorry to see that many gamers felt that our actions didn't respect the faith that they have put into CD Projekt RED. Our fans always have been and remain our greatest concern, and we pride ourselves on the fact that you all know that we listen to you and take your opinions to heart. While we are confident that no one who legally owns one of our games has been required to compensate us for copyright infringement, we value our fans, our supporters, and our community too highly to take the chance that we might ever falsely accuse even one individual.

So we've decided that we will immediately cease identifying and contacting pirates.

Too many entertainment, and in this case gaming, companies, get so caught up in fighting piracy that they ignore the concerns of their fans. As of December, it had looked as if CD Projekt, the poster boys of DRM-free gaming, were headed down that path as well. Based on this letter, they have seen the folly of that path and have decided to put their fans first. I am so glad to hear this news. You will never win fans for life by brushing aside their concerns. I am also glad to see that CD Projekt has recognized the damage that false positives can have on a community.

While the concerns of copyright infringement are a very real thing, and CD Projekt has some idea of its scope, it has never resorted to DRM in order to handle the problem. It stands by that business decision. This promise to stop pursuing suspected copyright infringers is the next step toward building on the good will of its fans. While it may take time for some former fans to forgive, they will be happy with this change. However, CD Projekt wants to make sure it is clear. This move does not mean that it condones copyright infringement:

Let's make this clear: we don't support piracy. It hurts us, the developers. It hurts the industry as a whole. Though we are staunch opponents of DRM because we don't believe it has any effect on reducing piracy, we still do not condone copying games illegally. We're doing our part to keep our relationship with you, our gaming audience, a positive one. We've heard your concerns, listened to your voices, and we're responding to them. But you need to help us and do your part: don't be indifferent to piracy. If you see a friend playing an illegal copy of a game--any game--tell your friend that they're undermining the possible success of the developer who created the very game that they are enjoying. Unless you support the developers who make the games you play, unless you pay for those games, we won't be able to produce new excellent titles for you.

I think that is a positive message to express. This is a human response to the problem of copyright infringement. We have seen such pleas succeed in turning a pirate into a paying customer, and there is no doubt that this honest plea for support will garner CD Projekt more sales and more fans. This honest apology and plea for support has certainly made a fan for life out of me.