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PhRMA Consultant Threatens Court Order to Stop Publication of<em> The Karasik Conspiracy</em>

This isn't about the technicalities of copyright law, although Phoenix Books likely would prevail if it were. This is about whether big PhRMA can win simply because it is big and Phoenix is small.
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The Pharmaceutical Research and Manufacturers of America (PhRMA) just can't get out of its own way. Now, through its consultant Mark Barondess, PhRMA is threatening to seek a court order to recall every copy of The Karasik Conspiracy, a new thriller published to the influential lobbying group's great dismay. Barondess is also demanding that emails he wrote to the publisher and authors be removed from the book's web site. Core First Amendment protections are at risk as the dispute pits one of America's richest and most powerful lobbying groups against Phoenix Books, a small publisher with only a fraction of PhRMA's resources. The outcome could profoundly affect the rights of a free press.

PhRMA wants the public listening carefully as it distances itself from covert actions to influence legislation, but the words its representatives wrote in "real time" are off limits. If PhRMA wins, it will be a license for lobbyists to fabricate and spin on issues of vital public importance, free of the risk that the public might learn the facts. This effort to intimidate Phoenix Books, quash evidence, silence critics and legitimize a cover-up is of grave concern to those who believe that the activities of entrenched lobbyists must be subject to public review. If PhRMA or Barondess succeed at recalling The Karasik Conspiracy or obliterating the book's web site, the implications for the public's right to know are downright scary.

It all started last March when, through Barondess, PhRMA commissioned a novel to be published by Beverly Hills-based Phoenix Books. The story was to center around a terrorist attack using poisoned drugs purchased by unsuspecting Americans from Canadian web sites. The novel was to scare Americans into opposing relaxation of the Medicine Equity and Drug Safety Act in order to keep lower-priced Canadian drugs out of the United States.

After insisting that their principal target audience for the book, women, couldn't understand complicated plots, that the terrorists had to be ranting fundamentalist Muslims, their motive greed (not politics), and the U.S. government had to be shown as incapable of protecting the public, they got the book they asked for -- a nonexistent genre that could only appeal to a PhRMA PR hack.

Someone at PhRMA realized the book wasn't a terrific idea, and PhRMA withdrew, blaming its decision on the quality of the book and refusing to honor any agreements with the publisher.

My co-author and I rewrote the book to eliminate the ranting Muslims and condescending attitude toward women, among other things. The result has received excellent reviews and now movie offers. Cindy Adams proposed Nicole Kidman for the lead, while the Toronto Globe and Mail gushed that the book would "send a chill" down the spine of Americans.

Apparently, the book also sent a chill down spines at PhRMA. Even before the rewrite was complete or a single review available, the cover up and the attacks began.

PhRMA consultant Mark Barondess got the ball rolling on NPR, when he claimed that he alone had paid for the book, that it was so bad he needed Dramamine to read it, and that the publisher and authors had tried to blackmail him by threatening to go public with PhRMA's involvement, forcing him to offer them $100,000 to shut them up.

Now, if there is nothing wrong in what Barondess or PhRMA did, one wonders why it mattered to him that the publisher and authors might tattle. But, more later on the Barondess and PhRMA view of who has the right to spin and who has the right to shut up.

Within just a few weeks after Barondess' NPR appearance, PhRMA admitted that it had reimbursed Barondess for the payments to the publisher -- though Slate later reported that Barondess had personally pocketed 25% of the reimbursement. No news on whether PhRMA, or Barondess' law firm, Los Angeles powerhouse Christensen Miller Fink Jacobs Glaser Weil & Shapiro, knew about Barondess' "commission," or whether Barondess, who has also testified to Congress about drug policy, has ever registered as a lobbyist. Slate also reported on the ironclad contract Barondess tried to force on the publisher and authors, prohibiting them from ever again criticizing the pharmaceutical industry, PhRMA or Barondess.

PhRMA admitted that it pulled out of the project because it was a bad idea, not because of the book itself. Its communications director, senior vice president Ken Johnson. denied PhRMA higher-ups even knew about the project, never explaining emails showing approvals from a PhRMA deputy vice president and the PhRMA legal department.

Trying to stop the book, PhRMA's representatives hammered the theme that it was unreadable (though none of them had seen the rewritten book). The mainstream broadcast media understood that PhRMA wanted nothing to do with the book and stayed away for fear of losing pharmaceutical ad-dollars (CNN went so far as to order Larry King to avoid any mention of the dispute). Now, once again hiding behind Barondess, PhRMA is threatening to use the courts in a last ditch effort to force Phoenix to withdraw the book and to deprive the public of the facts.

The road to this appalling legal stratagem began in mid-December when Phoenix filed a million-dollar lawsuit against PhRMA in Los Angeles Superior Court. The lawsuit alleged that PhRMA had breached a March 2005 oral contract under which it agreed to fund the costs of creating and publishing the original novel. The lawsuit also cited Barondess' accusation of blackmail and the repeated efforts by PhRMA senior vice president Ken Johnson and Barondess to denigrate the book they had never seen.

With a few weeks to gear up, PhRMA came back swinging -- with an Orwellian defense that only Goebbels could love. On January 12, Barondess' "litigation counsel" Peter Anderson, a heavyweight intellectual-properties lawyer in Los Angeles, sent a scorching letter to Michael Viner, president of Phoenix Books. Anderson demanded that Phoenix immediately recall all copies of The Karasik Conspiracy and delete all Barondess emails from the book's website.

After mangling the issues pertaining to confidentiality, citing inapplicable cases, and disregarding the laws on "fair use" and the compelling public interest in knowing the truth about PhRMA's involvement in The Karasik Conspiracy and its efforts to secretly lobby the American public, Anderson asserted that Barondess' emails to Phoenix and the authors couldn't be quoted in The Karasik Conspiracy or on the book's web site. He demanded that within two days all copies of The Karasik Conspiracy be recalled and the emails be deleted from the web site, or "we will interpret any failure to timely and full [sic] comply with these demands as your unwillingness to cease and desist from the infringements and will accordingly seek injunctive relief and all other remedies available to Mr. Barondess." Anderson's letter and publisher Michael Viner's response are posted in the book web site's "aftermath" section.

This is the precise result that Barondess and PhRMA sought from the very start. Michael Viner advises that when he told Barondess that Phoenix would publish the rewritten version of The Karasik Conspiracy, Barondess threatened to use PhRMA's lawyers and PR machine to bring Phoenix down. When Viner held his ground, Barondess tried to impose a confidentiality agreement on Phoenix and the book's authors. When that failed, Barondess took successive steps to damage Phoenix, including getting CNN to require Phoenix to remove a Larry King quote from The Karasik Conspiracy's cover, withdrawing from the publicity efforts for his own book, urging at least one author to withdraw from a Phoenix project, and now -- true to his word -- using lawyers to threaten the very heart of a publisher's business -- the right to publish and promote its books.

It is truly frightening. On matters of utmost public interest -- drug prices and the practices of one of the most powerful registered lobbies -- Barondess and PhRMA want to be able to spin their yarns to the media, but then stop the public from seeing the emails and letters that prove what really happened. Why are Barondess and PhRMA so afraid of allowing the public to form its own opinions?

For the record, the most recent demands are supposedly being made for Barondess, not PhRMA. That's the same three-card monte Barondess and PhRMA have been playing for months. It strains credulity to think Barondess would go nuclear without the approval or direction of his "most important client" the loss of which, he wrote, would be "economically devastating" to his family. PhRMA's prior knowledge and direction of this chilling strategy may be opinion, but PhRMA's ability to control Barondess is clear.

As to the book's web site, given the newsworthy nature of the correspondence, Barondess' eagerness to talk to the media about The Karasik Conspiracy, and the utter lack of artistic or commercial value in his emails, there are compelling reasons to believe that Phoenix would prevail in court. Still, PhRMA has all the money in the world, while Phoenix does not. That's no doubt a key factor in the attack. Phoenix may fight, though even if it lost it could replace the emails with synopses. If it does so, then the public would have to rely on Phoenix's characterization of Barondess' emails. Nothing can -- or should - substitute for the actual emails. It is my hope that Phoenix will not allow the bully to win. If it decides otherwise, truth will be the loser, as well as every individual or small company a well-heeled lobbyist next terrorizes.

Of course, there can be no flexibility when it comes to the book. Central First Amendment protections are in play. This shouldn't be a fight between Phoenix, Barondess and PhRMA. Rather, this must be a fight between the rights of all publishers, journalists and the public against elite lobbyists and their corporate clients. Either the public has a right to know the truth, or there will be no truth.

This isn't about the technicalities of copyright law, although Phoenix likely would prevail if it is. This is about whether big PhRMA can win simply because it is big and Phoenix is small. Unlike what Barondess or Johnson would have the public believe, The Karasik Conspiracy has been well received. That frightens PhRMA. That PhRMA and its consultants would go to these lengths to keep the book and its web site from you should also frighten you.

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