17 September 2014

A Midweek Snack

Just a couple quick bites of sausage.

  • Congratulations to this year's new MacArthur Foundation Fellows. At last: The Bechdel Test has imprimatur from the wine-and-cheese class! All seriousness aside, this is an eclectic group to watch.
  • Meanwhile, over across the Pond, Scotland votes tomorrow on full devolution — unwinding the union between Scotland and the other three members of the United Kingdom. Naturally, The Economist weighs in with a ridiculous and relentlessly upper-middle-class-oriented assertion that Scots will be "better off" staying in the UK. I hate to imagine what the corresponding item might have looked like in 1775 in Philadelphia as opposed to Edinburgh. The key problem is that the poll is inherently unfair and inaccurate: It asks only "Continue with the UK or do something else?" without specifying in any form what that "something else" might be. A binary decision of the specific against the aspirational is never accurate... or fair to either alternative, let alone to the people who have one particular vision of that aspiration but will be closed out of it, and would in the end have preferred Union to what actually emerges.

    That said, I do think there's a significant risk of Balkanization, driven — as usual — by centuries-old tribal rivalries cloaked in religion. And I don't just mean financial or even civil chaos, either.

  • There has been a lot of interesting copyright litigation activity in the courts in the last couple of weeks, but a fuller update awaits two more pieces of the puzzle in Europe. On this side of the Pond, though, Judge Easterbrook has rather expressly created a circuit split with the Second Circuit on the value — and perhaps even propriety — of the "transformative use" meme in fair use. In Kienitz v. Sconnie Nation, LLC, No. [20]13–3004 (7th Cir. 15 Sep 2014), he criticizes the Second Circuit's nonstatutory revision of the Copyright Act in Cariou (discussed here a while back).

    Fair use is a statutory defense to infringement. The Copyright Act sets out four non-exclusive factors for a court to consider. 17 U.S.C. § 107. The district court and the parties have debated whether the t-shirts are a “transformative use” of the photo—and, if so, just how “transformative” the use must be. That’s not one of the statutory factors, though the Supreme Court mentioned it in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994). The Second Circuit has run with the suggestion and concluded that “transformative use” is enough to bring a modified copy within the scope of §107. See, e.g., Cariou v. Prince, 714 F.3d 694, 706 (2d Cir. 2013). Cariou applied this to an example of “appropriation art,” in which some of the supposed value comes from the very fact that the work was created by someone else.

    We’re skeptical of Cariou’s approach, because asking exclusively whether something is “transformative” not only replaces the list in § 107 but also could override 17 U.S.C. § 106(2), which protects derivative works. To say that a new use transforms the work is precisely to say that it is derivative and thus, one might suppose, protected under § 106(2). Cariou and its predecessors in the Second Circuit do not explain how every “transformative use” can be “fair use” without extinguishing the author’s rights under § 106(2).

    Slip op. at 3–4 (hyperlinks added).

    Despite the rather understated rhetoric, this exposes a serious problem with current copyright litigation and theory. Once upon a time, fair use was a purely judge-made doctrine — a doctrine that was not consistent across the country, and especially not regarding the visual arts. Then along came the 1976 Act, which included a specific statutory framework for fair use. Unfortunately, there are also inconsistent statements in the legislative history of the 1976 Act claiming that this wasn't actually a substantive change, but merely codified the case law. Of course, that would have been sensible if, and only if, the case law had been consistent. There are several competing theoretical frameworks for fair use, which have varying relationships to the statute. Of course, fair use isn't just a matter of copyright law; as the Supreme Court pointed out in Campbell, there are constitutional dimensions to fair use... and similar, difficult constitutional dimensions to derivative works.

14 September 2014

Oversmoked Internet Link Sausages

Lots of travel-related distractions in the last week or so have kept these internet link sausages getting all hot and smoky in the smokehouse. Of course, some of the smoke is coming out of my ears...

  • Dame Judi Dench touches on an issue extending all the way across the arts in the Grauniad with her lament that the current system of developing acting talent in the UK preventably, and unreasonably, inhibits those from lower- and lower-middle-class backgrounds (fake paragraphing removed for clarity, typography corrected, and presumably declaimed in M's slightly exasperated tones).

    [Dench], who won an Academy award for her performance as Elizabeth I in Shakespeare in Love, believes it is vital for young actors to watch professionals on stage. "I always say to young students, 'Go and see as much as you possibly can', which is what we used to do. But then we paid a pittance for sitting in the gods," she said. Ideally, she said, she would reinstate rep[ertory theatre]s all over the country, but knows this is impractical, though she does not believe that government has to choose between hospitals and theatre: "In a civilised country, there's money for both." She accepts that talented aspiring actors can make it without going to drama school. "But it's a hard and rocky road," she added.

    And at that, actors have it better than do authors, artists, and musicians. Ignore, for the moment, that the skill set and feedback obtained from drama school is much, much more closely related to the actual demands of being a working actor than what is obtained from any form of training offered for authors, artists, or musicians. Completing that Royal Academy of Dramatic Arts program is simply a much bigger foot in the door toward a career as either a working actor or in the drama-support areas than is a writing degree from even a top-notch program (Over Here or Over There), or time in one of the few artist-apprentice programs or non-architectural art programs that does not funnel artists into the commercial horrors of "graphic design" (which I will excoriate another time; for the moment, just try using any of the "wonderful graphic design" smart phones out there wearing bifocals), or even a full degree from any of the leading undergraduate-level music programs.

    Then, too, there's the problem of how those from the must-work-as-a-teen-for-personal/family-support/survival cohort can even come to the interest of the prawn-sandwich-munching "patrons" of performance arts. The only potential solution to the problem is one that blends patronage, market incentives, and basic human decency... in a way that nobody has tried, let alone made work administratively.

  • Which leads directly to the question of exploitation of publicly purchased and displayed works and who benefits from them. Mr Rushton is, to put it bluntly, full of manure on this one. His position depends upon two critical assumptions, both of which are blatantly false (or at least are blatantly false if you're not East of the Hudson... or an economist like Mr Rushton). First, it assumes that all of the proceeds and other benefits must necessarily flow to either the patron or the artist — that there's no way to share those benefits. Just because Michelangelo never benefited further from the Sistine Chapel once he put down his brush does not make that either "right" or "the proper default"... and neither does the converse case in which the municipal context of, say, that Picasso in front of the Daley Center does not become part of the work itself and therefore subject to overruling by the artist. Second, it assumes that any negotiation between artist and patron is one between equally informed and empowered parties; I have yet to see one in all the time I've been dealing with commercial exploitation of the arts.

    Instead, Mr Rushton is seeking to apply that fifth fair-use factor — administrative convenience — in yet another aspect of the ownership of copyright/ownership of copy struggle.

  • Congratulations to Ursula K. Le Guin, who will be receiving long-overdue recognition from the National Book Foundation for her Distinguished Contribution to American Letters. The Foundation's Executive Director notes that "She has shown how great writing will obliterate the antiquated—and never really valid—line between popular and literary art" — that is, that the literary judgment of the people who haven't read her works but nonetheless persist in categorizing them for commercial and administrative convenience isn't worth very much.

08 September 2014

Quoted — But Not "Scare" Quoted — Internet Link Sausages

Don't worry, it's just an ingredient forming less than 2% of the content of these link sausages.

  • A NYT quasi-dialog asks "who owns fashion?" without ever coming to grips with the two essential predicate questions: "what is 'fashion,' as distinct from 'clothing'?" and "what does it mean to 'own' a fashion design/trend?" Of course, that's not surprising: None of the participants in the dialog live outside the echobox of the NYC-based garment industry (very much like proclamations concerning books from east of the Hudson), and none of the participants appear to value function as much as form. In short, this is a marketing exercise in which the value of that being debated is assumed without examination; it parallels whether Frank Lloyd Wright "owns" Falling Water (no — leaving aside that he's dead — he didn't/doesn't) and whether Bob Dylan "owns" the Jimi Hendrix rendition of "All Along the Watchtower," but without even the pathetically inadequate rigor applied to those questions.

    The fashion industry (or at least some of its exponents) needs its jockstrap pulled up over its head anyway, for its rejection of function (e.g., the loss of the chest pocket on men's shirts, just when it has become increasingly necessary for reasonably-sized cell phones) and its celebration of crappy branding and logos on everything. Dammit, the only logos/branding I've ever voluntarily worn on my clothing — at least where visible to others — is a matching silver "U.S." on the lapels of my uniform. That was enough of being a billboard to last me a lifetime.

  • Further proof that "conservative" does not mean "protective of and derived from the honorable elements of our past": conservatives are objecting to minor revisions to history curricula that don't meet their preconceived notions of truthiness. Excuse me, but when further research into documents of the time discloses that, say, the so-called "states' rights" movement of the late 18th century was founded on the presumed property rights in human beings, it makes sense to disclose that at least as much as it does to criticize the hypocrisy and excesses of Marx and Engels half a century later. And when the purported changes are criticised not concerning their factual basis, or even their discussion of contemporaneous doctrine, but how we look at both of them today through the eyes of our contemporaneous doctrine — that is, we look at basic-level historical analysis like we'd look at anything else — the "movement conservative" doctrine begins to look more than a little bit hypocritical and self-interested without the "enlightened" part that is an essential and critical part of both this nation's founding and any realistic chance at avoiding genocide. Although, to tell you the truth, I'm a lot more interested in the purported Howard Zinn "version," which is a rather unnuanced characterization of Zinn's own writings... and in a couple of hundred years, it'll be the same damned thing all over again.

    Tom Tomorrow, 08 Sep 2014

  • An Australian rants against a short-term-economics worldview and gets accused of being an "economist". Remember, enlightened self-interest...
  • The IPKat mewses about "harmonisation" of moral rights. Which, of course, would require some kind of agreement on what moral rights are — across nations, across art forms, across cultures (I can already anticipate the hard-core Confucian response!).

05 September 2014

I Suppose Weenies Are Link Sausages, Too

Non Sequitur, 02 Sep 2014

  • I'm shocked — shocked, I say — that the former governor of Virginia has been found guilty on eleven counts of political corruption. Not the corruption; I did, after all, spend two decades living in a state in which half the former governors were convicted felons. No, I'm shocked that in Virginia they'd bother prosecuting.
  • I usually find the Melville House blog replete with shortsightedness and conventional wisdom... but not this time. Sal Robinson rightly notes that translated works sell a lot better than the S&M mythology/predisposition alleges. The problem is that publishers still have a 1960s-imbued notion of what the actual costs of publishing a work are — and can't, or won't, get their heads into relevant contemporary data, insisting on continuing to analyze both costs and revenues under 1970s automobile-industry accounting paradigms.
  • I suppose that beats the problems with academic publishing, which on either a return-on-investment/equity basis or a gross-profit-margin basis is by far the most-profitable publishing industry. Gross margins at Pearson's academic imprints (book and periodical) and at Springer have exceeded 30% for years, and frequently exceed 40%. Naturally, this distorts the expectations for trade imprints/industries at the same conglomerates... as implied by the previous item.

  • This reflects the problem of intellectuals refusing/failing to adequately challenge stupidity/ignorance/shortsightedness of those in power. Of course, it might help if more of those in power — especially across the Pond, and I don't mean just in the UK — actually had real educations... and therefore could see some of the criticisms for themselves and/or understand them when expressed using words of more than two syllables, even if they didn't act on them. It might help even more if those in power did true public service, such as military or the equivalent, before going into politics and the upper reaches of business. It's really disturbing that, at around 3%, our Congress, federal judiciary, and cabinet-level executive is an order of magnitude more "experienced" in that sense than any in Western Europe (except Germany, due to the mandatory national service up to the early 1990s).

    Sadly, the same goes for the intellectuals, and it contributes rather disturbingly to the blind spots. No one set of backgrounds has a monopoly on either good or bad perspectives, ideas, or abilities. After all, Eric Blair (George Orwell) didn't really unleash his own prowess until after his little trip to Catalonia.

31 August 2014

Open Your Blue Exam Books, Please

... or, these days, fire up your word processor.

1. (60 min/30%) Consider the following passage:

Such phrases [as "Middle Ages"], obviously, are not self-contained; they are in fact incomprehensible unless we know some other facts. They designate something at first sight very vague, and need to be anchored in time (and, for that matter[,] in place) before we know what they mean. They refer to an unspecified number of centuries distinguished only by coming between others, and we are entitled to ask "between what? after what? in the middle of what?" Most people who read this book are likely to know the answers to such questions, approximately at least, before they open it, but only because the phrase "Middle Ages" has come to be taken for granted; has come to carry with it certain assumptions and presumptions — among them, that they apply to European history. But they were not there when men started to talk about medium aevum or media aetas, or coined other phrases as they cast about to express what they wanted to say. There was a time when the Middle Ages was a new idea, an invention, in fact.

J.M. Roberts, A History of Europe 162 (1996 U.S. ed.) (italics in original, punctuation corrected to US standard).

Discuss at least three of the following five items in light of this passage:

  • Justice Scalia's assertion that the legislative record is irrelevant to statutory or constitutional interpretation, particularly as declaimed in his majority opinion in District of Columbia v. Heller, 554 U.S. 570 (2008) and in his concurring opinion in Citizens United v. Federal Election Comm'n, 558 U.S. ___, 130 S. Ct. 876 (2010)
  • The set of Hirabayashi v. U.S., 320 U.S. 81 (1943) and Korematsu v. U.S., 323 U.S. 214 (1944), contrasted with U.S. v. Windsor, 570 U.S. ___, 133 S. Ct. 2675 (2013).
  • The meaning of the word "author" in 17 U.S.C. § 201(b), contrasted with the meaning of the word "author" in the enabling constitutional provision (Art. I, § 8cl. 8)
  • The meaning of the word "parody" in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) as interpreted in Dr. Suess Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997).
  • The general judicial refusal under "rational basis" review to consider only what a legislative or executive actually considered as reflected in the contemporaneous record, but instead consider what it might hypothetically have considered, as a valid rationale for an action or provision challenged as "unconstitutional"

Your response should include specific examples and counterexamples from both legal and nonlegal sources. Your answer may not exceed 1,250 words (approximately five double-spaced pages) excluding citations.

30 August 2014

Astroturf™: A Modest Proposal

Well, I'm stuck in California, where there's a severe drought in progress that, in reality, shows little chance of abatement (despite hopes for potential relief this fall from El NiƱo). It's gone so far that even the California legislature has noticed and actually done something, even if it's very much a case of trying the close the barn door after the horses have left. And the barn has burned down.

Indian Wells, California, golf courseBut it's worth taking a closer look at a photograph I might have used to illustrate that story on the legislature taking some action. One would think it would be illustrated by farmland, perhaps a wasteful wide-cast irrigation system running in the heat of the day (when even more water will be wasted through simple evaporation... and the plants may be harmed through lens effects from water droplets). But as noted, the legislature has at least begun to address part of that issue. Without addressing another issue:

Why the hell don't we demand that golf courses convert to Astroturf™ and eliminate their "water hazards"?

Is it, perhaps, that golf is such a preserve of upper-class and upper-middle-class white men that we can't regulate their bloody leisure activities? And for those who would claim that golf courses are "parks" and/or "nature preserves," just try having a picnic on a fairway; or testing the runoff from a golf course; or finding a natural habitat that consists of bloody lawn cut to a uniform height without ever being allowed to go to seed. And if you've ever seen water-consumption figures for a golf course — such as, say, the course on Andrews AFB, DC, frequently played by Congresscritters and Presidents — you'll begin to wonder just how many of the purported 17,000 jobs that might be "lost" through California's groundwater regulation might be "saved" if the water expended on golf courses was reallocated to those lower-class and lower-middle-class agricultural activities in the Central and Imperial Valleys, with all the women and children and melanin-enhanced people who hold those jobs benefitting from the reallocation.

Besides, there's always Astroturf™ as an alternative for golf courses. It can even be Astroturf™ designed to retain more groundwater. There won't be issues with divots any more, either. Neither will anyone be able to whinge about inconsistent mowing... or the groundskeepers getting in the way of spoiling a good walk. Golf isn't exactly a high-impact-on-the-knees "sport," either, unlike (say) football of any variety. Given the heavily Heffalump-leaning demographic of golf "enthusiasts," it seems that imposing Astroturf™ on them would be fitting for other reasons, too...

So that's my modest proposal and modest contribution to the groundwater debate in California.

24 August 2014

The Health Department Recommends You Avoid This Platter of Internet Sausages

... because it was prepared by a "chef" who spent the last week sick.

  • And getting a little bit shaken up. That was an interesting 10-15 seconds in the middle of the night, but the Shark Nest is about 60km from the epicenter of that tremor. That was also considerably less annoying than the second Saturday night power outage in a week several hours previously.
  • The local monopolist BigBookBoxStore chain continues to get more disturbingly unconscious about its racism. The counts yesterday:

    Hillsdale StoreNew Teen RomanceNew Teen Science Fiction & Fantasy
    Titles in Endcaps5987
    Humans Depicted on Covers6384
    Noncaucasian Humans Depicted on Covers01
    Book-Inferred Noncaucasian Demographic0%1%
    San Mateo County Actual Demographic (2013 Census Estimates)36.7%
    Not acceptable.
  • What utter moron at the NFL Network approved a campaign song associated with an utterly spoiled 1% brat (video) as being appropriate for "mere" popular fandom? If you don't remember it, here's the original (video).

17 August 2014

In London So Fair

... I was not. At least not this past weekend for WorldCon. I might not have been all that welcome, anyway.

That said, congratulations to the recipients of the Hugos. They don't deserve to be tarred with the brush of corruption, but they probably will be.

And further, grudging congratulations to the paying electorate for gettings its collective head out of its collective rectal orifice for at least long enough to reject the attempted partisan/ideological manipulation of the awards. Being competitive with — and, more appropriately yet for the most repulsively bigoted of the authors, losing to — "No Award" seems just about right (see pages 1 and especially 3). Of course, the nomination statistics are revealing, too...

11 August 2014

The More Things (Appear to) Change...

Once upon a time, I remarked on the disturbing tendency of advocates of self-publishing ("boosters") to, well, lie about the track record of self-publishing. As it's now been a decade, it's time to revisit that posting... unfortunately.

For printed books, nothing has changed for the better; if anything, boosters of POD-only self- and vanity publishing have gotten even more deceptive in their disturbingly generic approach. Probably the worst offender — and now nearly a monopolist — is Author Extortion$olution$, which is now a wholly owned division of one of the Big Howevermanythereareleftbythetimeyoureadthis commercial publishers in NYC: Penguin. (Which is, sad to say, essentially a wholly owned division of another media conglomerate itself.) In a sense, A$$ is the reductio ad absurdum of almost everything that is wrong with the business model of commercial publishing in the twenty-first century... combined with almost everything that is now and has been wrong with the business model of vanity publishing since the early eighteenth century. The considered advice that I have is to stay away. Stay away for original works; stay away for "affiliate" programs through purported "writers' organizations" that are making more money from your "publishing agreement" than you are; stay away from A$$'s competitors, who are merely slightly less bad deals. It's actually unfair to compare these vanity publishing con artists with actual self-publishing vendors (key test: if the publisher/vendor has legal title to the individual copies as they come off the press — whenever they actually do — it's not self-publishing). Unfortunately, thanks to the rapacious venture-capital approach that took over in about 2006, that's really all that's left...

...except, that is, for the boosters, who sound more and more like convicted felon Kevin Trudeau every time I see one of their pitches for their "self-help" conferences and "self-published" books (that, with only one meaningful exception, are actually distributed through commercial publishing channels, which should tell you everything you really need to know). I continue to stand by my 2004 analysis, which was remarkably generous to the purported "self-publishing success stories" debunked there. For example, I didn't point out that three of the purported "success stories" were successful only through commercial publishing... and went through bankruptcy with their self-publishing efforts. I didn't point out that two of the other purported "success stories" later repudiated both self-publishing in general and their own experiences with it (and one of them even repudiated the work in question). I didn't point out that one of the other purported "success stories" has long run a bookstore stocked almost entirely with commercially-published books — even in the noncommercial category of his "success story."

Things are slightly different, however, concerning electronic self-publishing. I'm going to pause for a moment while you consider Victoria Strauss's restrained, eminently reasonable, absolutely essential evaluation of electronic self-publishing in mid-2014. OK, you're back? You've actually read Victoria's piece (instead of just bookmarking it for "later," which usually means "never"), and in particular carefully determined that you're not kidding yourself? The key thing to remember about electronic self-publishing is disturbingly simple:

Some grade-school phenoms get rich in the NBA, but that doesn't make the expectation of future NBA riches a good business plan for even a highly talented seventh-grader.

Indeed, if one really wants to understand this entire phenomenon, one can do worse — much worse — than spend four hours watching one of the ten best films of the 1990s and thinking about its shocking parallels to publishing, and especially to publishing fiction. There quite possibly are (and almost certainly in the future will be) some exceptions... but the existence of such exceptions does not make them valid models for a business plan, any more than that of Arthur Agee and William Gates, Jr. in sixth grade.

Commercial publishing is even more insane than it was a decade ago. The up-front cash requirements are now vastly lower for electronic self-publishing than they ever were (or will be) at any stage of print self-publishing. The hidden vanity publishing deal remains just as dangerous (and, sad to say, prevalent), and the perfidy of commercial publishers is better known. Electronic self-publishing boosters provide a much higher proportion of well-meaning, but not well-considered or -taken, advice, from people who think that somehow pasting some statistical language on top of invalid data sets will provide meaningful guidance for persons who are — almost by definition — not inside those data sets; perhaps that even outnumbers outright con artists. So far — and once upon a time (the 1980s and early 1990s), there was less spam in my inbox for snake oil internet p0rn dubious pharmaceuticals, too.

This leads to the most-important question that any not previously commercially published author who is considering electronic self-publishing should ask... and honestly answer:

Do I have one or more follow-on e-books or ancillary products of comparable nature and quality that will be ready for publication/exploitation within three to six months after I make this one available for sale to the public?

If you can't answer that "yes," that should be a big hint that you're not ready to make a planned financial success out of electronic self-publishing. Almost without exception, the non-deceptive "successes" in electronic self-publishing have come from authors with multiple, comparable products all made available within a short period of time. Some of these are republication of back catalogs by commercially published authors; others are first publications in electronic form, but at tight intervals to satisfy internet-paced memes and fandom; still others are tied to non-publishing events and circumstances (such as personal appearances). Indeed, I've been unable to verify any exceptions, although I'm still withholding judgment on several candidates.

If there's a short version of this post, it is this: Don't quit the day job until you've already proven that you actually can quit the day job. That's the same advice that authors should have heard (but too often have not heard) since the early eighteenth century; the context and details have changed, but the conclusion has not. Similarly, my conclusions regarding unethical boosterism of self-publishing haven't changed in the last decade, either — a few of the details have changed, but the primary question still needs to be "What's in it for the person offering me this advice?" On occasion, one really will find an altruist. More often, one will find a misguided booster... or outright con artist... and distinguishing among the three is a matter of degree, intent, and the dark arts of certain professions that tend to make for complete disjuncture from the writing life.

04 August 2014

The Windmills Won (Fortunately)

If you have a dubious copyright claim, don't assert it in the Seventh Circuit... and ensure that your position does not "border[] on the quixotic" or "the frivolous." In particular, you should seriously rethink your strategy if the following sounds anything like you:

The Doyle estate’s business strategy is plain: charge a modest license fee for which there is no legal basis, in the hope that the “rational” writer or publisher asked for the fee will pay it rather than incur a greater cost, in legal expenses, in challenging the legality of the demand. The strategy had worked with Random House; Pegasus was ready to knuckle under; only Klinger (so far as we know) resisted. In effect he was a private attorney general, combating a disreputable business practice—a form of extortion—and he is seeking by the present motion not to obtain a reward but merely to avoid a loss. He has performed a public service—and with substantial risk to himself, for had he lost he would have been out of pocket for the $69,803.37 in fees and costs incurred at the trial and appellate levels ($30,679.93 + $39,123.44). The willingness of someone in Klinger’s position to sue rather than pay Doyle’s estate a modest license fee is important because it injects risk into the estate’s business model. As a result of losing the suit, the estate has lost its claim to own copyrights in characters in the Sherlock Holmes stories published by Arthur Conan Doyle before 1923. For exposing the estate’s unlawful business strategy, Klinger deserves a reward but asks only to break even.

We note finally that the estate was playing with fire in asking Amazon and other booksellers to cooperate with it in enforcing its nonexistent copyright claims against Klinger. For it was enlisting those sellers in a boycott of a competitor of the estate, and boycotts of competitors violate the antitrust laws. The usual boycott is of a purchaser by his suppliers, induced by a competitor of the purchaser in order to eliminate competition from that purchaser, as in the leading case (old as it is) of Eastern States Retail Lumber Dealers’ Ass’n v. United States, 234 U.S. 600 (1914); see also JTC Petroleum Co. v. Piasa Motor Fuels, Inc., 190 F.3d 775, 777–79 (7th Cir. 1999). This case is different, in its facts but not in economic substance or legal relevance, because the boycotters enlisted by the Doyle estate were buyers from the victim, rather than sellers to it. But functionally they were suppliers—suppliers of essential distribution services to Klinger.

It’s time the estate, in its own self-interest, changed its business model.

Klinger v. Conan Doyle Estate, Ltd., No. [20]14–1128 (PDF) (7th Cir. 04 Aug 2014), slip op. at 6—7 (op. on fees) (citations in original, hypertext added).

I think Judge Posner is actually too nice to the Doyle Estate's business model: Depending upon the degree of force used, it's better known as either a "shakedown" or a "protection racket." This sort of nonsense actually makes enforcement on behalf of those who have legitimate claims significantly more difficult: Demand letters get roundfiled along with the frivolous claims... and the frivolous defenses. One corollary — the invalid assertion of work-for-hire status — may get a Supreme Court hearing in the near future, and will hopefully be treated with equal disdain (leaving aside the constitutional question of whether Congress — or even a court — has to power to redefine the term "author" as it appears in the Constitution (Art. I, § 8, cl. 8) to mean "someone who is definitely not the author," as that issue appears not to have been raised thus far).

Counsel is not obligated to pursue every claim that a client believes it has regardless of merit. Counsel is obligated, as an officer of the court, to pursue only meritorious claims or defenses... and is supposed to tell the client when a claim or defense has no legal merit and refuse to present the nonsense. Even if a claim or defense has "merit" as a negotiating position, it doesn't belong in court. Any "bordering" on the quixotic in this case was on the wrong side of the border, and after Dastar the border was a couple of counties the other way.