link to: 10:37 [GMT-6]

As a public service announcement and on behalf of limiting the spread of communicable disease, please carefully watch the embedded video for some serious medical instruction.

• An interesting piece in The Economist discusses the problem (if it is one) of anonymous corporate ownership. This is analogous to the problem of Super-PACs in politics. It is one thing to want one's business to remain private; it is another entirely to exert anonymous, unaccountable power. Unfortunately, in a modern economy distinguishing between the two is virtually impossible.
• Congratulations to this year's finalists for the National Book Critics' Circle awards. Leaving aside its arrogant disregard of anything that marketing dorks might label "genre" (better called "category," but I've lost that argument to the marketing dorks long ago), it's an interesting list that is simultaneously diverse and narrow.

  Simultaneously, congratulations to the winners of the Newbury and Caldecott medals and honors.

• If you really need proof that the publishing subindustry is anything but a free and fair market, consider the pot calling the kettle black — publishers calling for antitrust investigation of Amazon. As anyone who has read this blawg at all in the past will understand, I am not defending Amazon here! Consider what publishers do with their monopsony power: They impose startlingly uniform terms on writers, such that there is price competition for less than 1% of accepted works of fiction; they impose electronic book terms based on a H'woodesque "net receipts" calculation; and then they establish a few titles as loss leaders without consulting (and often without notifying) the authors... who are, in turn, stuck accepting the publishers' accounting of what happened.
• Nick Mamatas offers some potentially useful advice for writers — by noting some advice that should not be given. I'm particularly fond of "show don't tell" as a universal piece of advice from people who don't have the faintest idea of why; it's sort of like taking advice on how to build a bridge from someone who still counts on his/her fingers and thinks "trigonometry" has something to do with how one looses the quarrel from a crossbow (ok, it does, but not in the way that you'd think).

If the speaker in that video at the top of this entry seems vaguely familiar, it's tough guy Vinnie Jones — a star of recent British action films, and before that the hardest of the "hard men" in football. That's him on the left. Perhaps he should be selling little blue pills or doing a PSA for prostate cancer instead of for heart attacks...

No, the ref didn't see it.

Labels: arts, politics, publishing, science, sport

link to: 12:21 [GMT-6]

I have a few thoughts about takedown of M3gaUp10ad and (entirely expected and predictable) juvenile (at best) response from An0nym0u5. As an actual exercise of free speech under the First Amendment based upon actual facts instead of just ideology, and in no particular order:

• The takedown of M3gaUp10ad in this instance demonstrates precisely why there is no need for SOPA, for PIPA, or for any of the other content-distributor-proposed "enhancements". It also demonstrates why the overemphasis on distributors as a proxy for the actual creators of copyrighted material is so silly.

  In particular, I note that none of the public statements have acknowledged M3gaUp10ad's prominence in storing and distributing pirated audiobooks and pirated texts. That's probably because the actual holders of those copyrights can't afford to own (or rent) sufficiently-highly-placed gummint officials... and because H'wood and N'ville have been so much more vocal in their misuse of foundationless numbers to convince people that the problem is serious.

• Arrrrrrrrrgh! Polly wanna finger!

  Parrotting someone else's original expression has almost nothing to do with free speech. Those who care about free speech will engage in their own original expression... and thereby avoid copyright piracy in the first place. Whether a particular "reuse" is "transformative enough" is an issue of fact that must be decided "reuse" by "reuse" — but that's not what we're dealing with here. It may be what SOPA/PIPA wants to deal with, though.

• This is not my first notice of one or more of the founders of M3gaUp10ad as pirates and enablers of pirates. Let's just say that I'm satisfied now (and was satisfied then) with admissible evidence — that later events made unnecessary due to other legal maneuvering — that one or more of the persons indicted was/is a pirate regarding text copyrights I've been involved in protecting over the years.
• This is a preemptive counternotification against any attempt to shut down this blawg on the basis of any of the above: I've got documentation supporting each and every statement. And the blawg is hosted on a Google subsidiary. And Google is one of the major opponents of SOPA and PIPA.

  Of course, if this preemptive counternotification doesn't work, that is perhaps the best evidence that SOPA and PIPA and their ilk constitute an abuse of power!

Labels: copyright, intellectual property, internet, mass media, publishing

link to: 09:40 [GMT-6]

For once, I'm going to skip over the complex procedural history of how this matter reached the court. Although that history is very interesting to civil procedure geeks (like me), this time it does not affect the outcome or the factual record on which that outcome is based.

In any event, in the early 1990s Congress got whacked upside the head by the World Trade Organization for not properly complying with the Berne Convention — specifically Article 18 — when the US joined the Berne Convention in the late 1980s. The WTO reminded Congress that the formalities of registration did not, and could not, be used to deny copyright protection for foreign works. This resulted in legislation, because Congress really didn't want to be subject to WTO sanctions for copyright violations, and eventually in the Uruguary Round Agreements Act § 514 (codified at 17 U.S.C. § 104A).

The seeming result of this change was to bring a lot of works back into copyright that had been "relied upon" as being in the public domain. Needless to say, some people — especially, but not only, in classical music, for complicated statutory and cultural reasons that could easily occupy a 10,000-word article — objected to this restriction on their ability to freely perform/exploit works that they had relied upon as being in the public domain. (Also needless to say, these people generally ignored all of the compromise protection offered them in § 514/§ 104A in making their arguments...) They therefore filed suit, claiming that Congress did not have the authority to do what it did.

At a fundamental level, the challenge must fail. Absent a valid First Amendment or Fifth Amendment issue, Congress has an absolute right to take a property interest that is inchoately held by the public. The Supreme Court has previously disposed of the various First and Fifth Amendment challenges here. But notice what the plaintiffs' position really is: It is not a First Amendment challenge at all. It is a Fifth Amendment challenge that what Congress did was a taking... because it presumes that the public domain is property in which potential exploiters have a sufficient and personal property interest. In short, this is an internal logical inversion — they would claim a private right from public property, and further claim that their private right is superior to the private right that Congress intends to "restore" to the original owners.

But let's leave sheer logic out of it: We're talking about cultural appropriation here, and logic is never a winning (or sufficient) strategy in arguments over culture. This particularly monstrosity ended up in the Supreme Court with this formal statement of the issues:

Section 514 of the Uruguay Round Agreements Act of 1994 granted copyright protection to millions of works that the Copyright Act had placed in the public domain of the United States, where they had remained for years as the common property of all Americans and free to use without restriction. The questions presented here are:

1. Does the Copyright Clause of the United States Constitution prohibit Congress from taking works out of the public domain?

2. Does Section 514 violate the First Amendment of the United States Constitution?

The Court answered both of these in the negative.

1. First, the Court rejected the "impenetrable barrier to restoration" argument (slip op. at 13), finding no constitutional barrier to restoration. Largely relying upon the previous decision in Eldred (as noted above, also written by Justice Ginsburg), the Court notes that the actual extension offered is a limited time, and therefore literally within Congress's power under the Act. The interesting rhetorical exercise here is that the Court entirely skates on a different question: Might the Treaty Power (Article II, § 2, cl. 2) authorize Congress and the President to fill interstices in the Constitution (slip op. at 15–16)? That said, the Court rejects the "personal interest in the public domain" theory put forth by the plaintiffs in objecting to restoring foreign copyrights (slip op. at 16–19, citing previous examples of bringing works "back" into protection), and specifically holds that Congress may consider international effectiveness in fashioning domestic law:

Considered against this backdrop, § 514 falls comfortably within Congress’[s] authority under the Copyright Clause. Congress rationally could have concluded that adherence to Berne "promotes the diffusion of knowledge." A well-functioning international copyright system would likely encourage the dissemination of exist-ing and future works. Full compliance with Berne, Congress had reason to believe, would expand the foreign markets available to U.S. authors and invigorate protection against piracy of U.S. works abroad,

(slip op. at 22, internal citations omitted, some typography corrected) Justice Ginsburg concludes for the Court that protection of existing works in an international system is an important motivation entirely consistent with the IP Clause (Article I, § 8, cl. 8) and the imperative to promote progress through creation of new works. Compliance with international norms is, therefore, a rational exercise of Congress's power under the IP Clause.

2. The First Amendment question should have been disposed of by noting that the question had already been settled, and indeed never should have been granted. That said, Justice Ginsburg fairly gently points out two things that make the First Amendment essentially irrelevant to this particular question:

• The plaintiffs are not concerned with the First Amendment's protection of their own ideas, but with a purported right to parrot someone else's expression of ideas (with which they may agree or disagree). The idea/expression dichotomy is firmly established as consistent with the First Amendment (slip op. at 23–25).
• It's not a prohibition by any means; it only requires that plaintiffs, and others, must access the marketplace on the same basis as they would for American contemporaries. Justice Ginsburg's comparison of Prokofiev to Bernstein and Copland (slip op. at 29) is particularly apt in light of some factors that she does not explain — such as successful US efforts to force Russians to pay royalties on Bernstein's and Copland's works for exploitation during the Soviet period of renouncing the Berne Convention. The "orphan works" problem invoked by the dissent is dismissed as non-unique and largely illusory (slip op. at 30–32)... and, in particular, outside the scope of the questions presented for review, and not presented by a party with standing.

The iceberg lurking here is whether the formalities of registration, and particularly of renewal, are so inconsistent with Berne that the underlying legislation is, itself, insufficient... and therefore subject to much-more-profound reinterpretation in light of the First Amendment. Fortunately for the Court, this petition did not squarely present that question, because it doesn't have a good or easy answer.

Of course, there was a dissent. It is not a badly reasoned dissent, but it is somewhat disingenuous in one respect: It does not adequately acknowledge the distinction between constitutional restriction and policy-level second-guessing. For example, Justice Breyer claims that:

Still, I cannot find this argument sufficient to save the statute. For one thing, this is a dilemma of the Govern­ment’s own making. The United States obtained the benefits of Berne for many years despite its failure to enact a statute implementing Article 18. But in 1994, the United States and other nations signed the Agreement on Trade-Related Aspects of Intellectual Property Rights, which enabled signatories to use World Trade Organiza­tion dispute resolution mechanisms to complain about other members’ Berne Convention violations. But at that time the Government, although it successfully secured reservations protecting other special features of American copyright law, made no effort to secure a reservation permitting the United States to keep some or all restored works in the American public domain. And it made no effort to do so despite the fact that Article 18 explicitly authorizes countries to negotiate exceptions to the Arti­cle’s retroactivity principle.

(slip op. at 22–23 lit./67–68 log., internal citations omitted) That is, Justice Breyer's dissent is founded on the failure to negotiate the treaty accession and Uruguay Round amendments as he would have preferred, with 20/20 hindsight, and then elevating that disagreement to constitutional dimension. Sometimes that is valid; in this instance, however, Justice Breyer's rejection of treatment of past works as providing adequate incentive for creation of new works (see, e.g., slip op. at 17 lit./62 log.) is a policy, and not constitutional, preference. As a policy preference, it fails the test for overturning acts of Congress; at the extreme, not everything that is stupid is unconstitutional.

So, then, why should authors care? Primarily, authors should care because it reinforces what were/have been "best practices" for a long time — ask permission, and then rely on fair use only after careful consideration if that permission is refused or too expensive — are legally required for a relatively small universe of foreign works. At oral argument, Chief Justice Roberts asked a semiilluminating question that would have been relevant — whether Jimi Hendrix's version of the "Star Spangled Banner" would have fallen afoul of § 514 if the original music had fallen inside of the foreign rights restored — but never pointed out that factually, Hendrix's interpretation would have qualified as fair use in a way that a literal "mere" quotation would not. That, however, requires actual application of brain to problem instead of mere reference to ideological predispositions; even if information wants to be free, entertainers want to be paid. Secondarily, authors should care because validation of § 514 also validates the converse — efforts to control infringement of their works in foreign jurisdictions that haven't always respected copyright. This is where Justice Ginsburg's silent nudge on Soviet treatment of US works, such as Bernstein and Copland, is most important.

And last, but far from least, a snarky comment about Wikipedia. For those who haven't noticed, Wikipedia is dark today, voluntarily, as a "protest" against SOPA. I share the ire against SOPA (and the various alternatives that have thus far been floated). The snark is twofold: That this points out exactly why voluntarily going dark as a news source misinterprets the First Amendment and is ultimately self-defeating; and that now, at least until midnight today, people trying to understand what Golan means (those who don't stop here first, that is <vbeg>) will not be deceived by the almost-inevitably wrong bullshit that appears on Wikipedia for new intellectual-property opinions. (Aside: No, Mike, it's not you; it's the various "editors" who are more interested in their versions of reality than the ones shared by everyone else, and fail to distinguish between "should be" and "is".) Instead, they'll have a chance of getting something that approaches accuracy... on a copyright matter, during a voluntary darkness in "protest" of a copyright matter.

Labels: copyright, culture, intellectual property, internet, jurisprudence

link to: 12:28 [GMT-6]

• There's an interesting piece in yesterday's Observer/Grauniad that discusses some of the prices of the UK's libel law... not surprisingly, in a very cursory and opinionated matter, since there's no question at all that something published in the Grauniad would be subject to jurisdiction in the London courts (and it wouldn't even require libel tourism to sue!).

  In Britain, money buys silence. The cost of libel actions in England and Wales is 140 times higher than the European average. If you lose a case, lawyers operating on a no-win, no-fee contract force you to pay damages, your costs, your assailant's costs, a "success fee" for the victorious lawyers– which doubles their real costs – and a payment to cover insurance bills. In 2010, Lord Justice Jackson added these together and estimated that the costs of civil litigation in England could amount to 10 times the damages the court awarded.

  Nick Cohen, "You Can't Read This Book" (book extract). The obvious counterargument is that this is no more than the scandalous liar deserves. Even assuming that to be true, though, the peculiar British institution of requiring the defendant speaker to prove the truth of what he said (instead of, as in the US and arguably as required by the Universal Declaration of Human Rights, the plaintiff subject to prove the falsity of what the defendant said) only magnifies the problem... and hides the problem of determining who, exactly, is the liar.

• Which, in turn, leads to SauronRupert Murdoch's twitter complaint that President Obama's (well-considered) rejection of SOPA means that President Obama is merely following the directions of his tech-industry "paymasters" in declaring that he will not elevate antipiracy efforts above the First Amendment. Sauron has apparently forgotten that his "fortune" depends almost entirely for its base on the First Amendment, not to mention the right to hack celebrities' and crime victims' phones because he thinks the public will pay to know the results. Pot, meet kettle...
• As a strange aside, consider the way that many libraries and video rental outlets (stores and online) attempt to subdivide entertainment films by some notion of genre or type. I suppose it's easy enough to say "musical," or "animated feature"... but sometimes, as at the library across town, things get a little bit surreal. Does Atlas Shrugged (Part I) really belong in "Action/Adventure Films"? And then there are tougher calls, like whether Dr Strangelove belongs in comedy, drama, or military action/adventure.
• Across the Pond (returning again to the Grauniad), there are two contrasting items on how academic publishers are betraying both the public and their authors and a proposal, or perhaps just question, concerning whether declining advances offered to authors would justify a tax subsidy for authors. What both issues demonstrate is a fundamental problem with the economics of scale and distribution of written expression — a problem that was not well understood in the eighteenth century when the IP Clause was worded the way that it is. The short explanation is that the distribution system extracts rents from its control of time and its superior original capital position, and that those rents are imposed both monopolistically (on the public, as exemplified by the high prices for academic publications) and monopsonistically (on the suppliers/writers, as exemplified by the declining — or, in the case of academic authors, even increasingly negative! — compensation for authors spread out over an increasing period of time). That is, one must question the validity of the existing business model(s).

  Yes, this does relate directly to each of the three preceding link sausages on this platter. Each of them concerns an improper, self-interested classification that is imposed upon an entire antitrust market by coordinated interests that dominate a significant subsegment of that antitrust market — and thereby manage to extract rents from not just that subsegment, but from the entire antitrust market. If one accepts the theory behind the Rule of Reason, the HHI Index, and non-Schumpeterian modern antitrust doctrine, that shouldn't happen. That it does, in fact, happen (NewsCorp's very existence is proof) indicates that modern antitrust economics, at least as it relates to intellectual property, undervalues the endowment effect of intellectual property and underestimates the situational elasticity of the Coase Theorem, among other issues. In short, it's bad, ideologically driven economic theory that is not satisfactorily congruent with real human behavior, if only because economics and ideology are inherently valid for large systems and considerations in the arts and innovation are inherently valid for small systems... but both have much-greater than predicted by analogy to quantum mechanics echoes in the other.

• Then there's the question of what economists would probably (if they thought about it at all, that is) label "second-order creative efforts" or something like that. Professor Pasquale calls it the remix culture, but what it really does is act as a snarling refutation of the dominant economic meme: That the profit motive is not only a necessary explanation for human activity, but a sufficient one.
• Along the same lines, this blawg's only feline friend the IPKat notes two recent European studies on parasitic copying that, unfortunately, restrict themselves far too much by limiting what is being examined as copying, but nonetheless invite application to areas outside the scope of the studies.

Last for today, I want to comment on a successor to Dr King's concern about skin color. I am not implying that that battle is over, or even necessarily won; there are several towns in this county where one risks being pulled over for driving while melaninically enhanced. Instead, there's a move toward proxies, like religion, that are (in employment-law terms) of disparate impact rather than intentionally and universally discriminatory.

The case of Jessica Ahlquist is an excellent example, unfortunately. It also points out the defects in the Supreme Court's decision in Santa Fe School District, which did not go nearly far enough in rejecting prayer as a formal part of school athletic events. The obvious question is whether the sauce for the goose is also sauce for the gander. If one actually reads the attacks on Jessica Ahlquist, one sees a lot of accusations that she's not thinking for herself — that this is actually her parents using her as a proxy. Perhaps; but if that's valid, why not apply the same inquiry to the schools in Santa Fe that essentially directed a protestant, evangelical point of view as the only acceptable basis for that school-sponsored prayer/address?

Then there's the proxy issue for race and ethnicity. Take a look at that photograph of Ms Ahlquist that's on Ms McCreight's blog, linked above. It doesn't look very stereotypically Scandanavian, does it? Is there perhaps — just perhaps — some mixed ethnicity in Ms Ahlquist's background? And how, one might ask, does that compare to the much-more-homogeneous-than-average demographics of Cranston, Rhode Island (about 1.6σ off the US mean, and somewhere around 1σ off the Rhode Island mean, so far as I can determine quickly)? Disturbingly, I run across this all too often here in East Central Redneckistan, and ran across it all too often in the military worldwide and in dealing with legal and publishing issues.

If I were definitively judging Ms Ahlquist by the apparent content of her character — and I'm not; no sixteen-year-old girl deserves that, any more than sixteen-year-old girls acting as a clique as they so often do should be judging the worth of anyone else — I'd be a lot more impressed by her than I am by the Cranston community at large... assuming, of course, that the attacks on her Ms McCreight refers to were not largely made by carpetbaggers. (Yes, that inversion of the Southern Complaint during Reconstruction is intentional.) Not to mention that, at a fundamental level, she's right: It is discriminatory, and inappropriate, for an archly christian (and subliminally protestant) prayer to appear on the wall of a public high school in any context, let alone in isolation. It's wrong constitutionally under Santa Fe School District and Lemon and Larson and more other lines of precendent than I can name conveniently, let alone under any fair reading of the First Amendment itself; it's wrong fundamentally; it's wrong ethically; ... and it's wrong as a matter of religious doctrine, at least if one actually reads the later epistles. Most importantly for a day celebrating Dr King, it's wrong demographically as implicitly excluding all non-christians (and implicitly criticizing catholics).

Dr King's dream was not of contemporary Iran, nor of 1960s Belfast, nor of 1620s Germany. That does not mean, however, that it is anything less than the minimum aspiration required both by the constitution and basic human decency.

Labels: censorship, civil rights, culture, internet, mass media, politics, publishing

link to: 11:24 [GMT-6]

• Without further comment due to multiple conflicts, consider a coherent piece on scams and bad deals aimed at authors who self-publish.
• Here's a side effect of the Borders bankruptcy: externally imposed, ideologically driven changes in product mix. This is not a good thing, nor an excusable one, nor one consistent with the "efficiency" meme ordinarily used to justify overconsolidation in defiance of antitrust law.

  Ironically, this is exactly parallel to a minor tempest-in-a-teabag controversy brewing over across the Pond. The UK's Tory prime minister wants subsidies to focus on "bigger" films, which I suppose makes sense from a purely efficiency-oriented point of view (which I reject when it impinges on freedom of expression, but that's for another time). Needless to say, filmmakers are not in agreement, with each other or Mr Cameron. Meanwhile, neither of those parties is noting that the efficiency question has nothing whatsoever to do with filmmaking, and everything to do with distribution to the public... an entirely separate issue. If it was a question of efficiency, more than the occasional exception would be profitable under even H'wood's definitions (because practices would adjust to account for that — pun intended), and we'd have no superbombs like this one or supersuccesses like this one.

• Over at a pseudonmyous philosophy blog, there's the unexceptional statement that Adam Smith's works on economics were equally works on moral philosophy — an almost inevitable conclusion if one actually reads An Inquiry Into the Nature and Causes of the Wealth of Nations, instead of some half-baked ideologically filtered "summary" prepared for undergraduates who have neither the experience nor the skills (let alone the motivation) to seek beyond that summary for reality.
• Speaking of which, what is an efficient business model? You might be surprised: A focus on intellectual property seems to correlate with both well-run companies and high market-value-to-assets ratios.

Labels: culture, intellectual property, mass media, politics, publishing

link to: 12:06 [GMT-6]

• The day of the New Hampshire "primary," the manufacturer (miner?) of Twinkies and other wholesome snacks declares bankruptcy. Coincidence? I think not...
• The fallout from excessive copyright terms is tone-deaf, otherwise-disinherited nephews determining what's on Broadway (besides jazz hands). The problem here is that the Copyright Act overrides wills in two respects: revocation/termination rights (§ 304(c), § 203) and renewal rights (§ 304(a)(1)(C)) descend according to legal directive, not what is in the will or other succession-of-interest plan (such as a trust). I understand why Congress wanted to do this — it was a reaction to the combination of overreaching by publishers (primarily music publishers) in the 1940s and 1950s and the indeterminacy of what happens to renewal rights if the publisher takes the whole copyright — as was required under the 1909 Act, even if fleeting — and then goes out of business without returning the copyright to the creator (even if that was the intent, and was reflected in the publishing contract that way). That Congress still got it egregiously wrong shouldn't surprise anyone, though... because in the mid-1970s, it wasn't just Nimmer-worship; it was worship of the first edition of Nimmer.
• In 2011, paid digital downloads of music (by some measures) exceeded CD sales. Leaving aside the reliability (or not) of the data and conclusions, it points to an interesting psychological and marketing issue: Redefinition of what is "the Work" in which the public is interested. This is perhaps most obvious in classical music; few people, after all, download just the second movement of Beethoven's Ninth Symphony. The almost-iconic status of the Fourth Movement (with the "Ode to Joy") is truly exceptional in classical music; instead, the Work is the Ninth Symphony as a whole, which (until relatively recently) required not just a whole CD, but two vinyl discs. Conversely, in "popular" music, since the late 1970s the integrated (or "concept") album has gone out of style. People just don't refer to The White Album's marketplace successors as the Work any more. In turn, that makes the relatively small, discrete subunits of popular music that are collected together on a single CD each individual Works under the measures of the marketplace... and this is particularly so for albums coming out of the Nashville-based labels, because album construction is even more marketing-dork dominated in that subset than elsewhere (where it's still endemic).

  Implications of this shift as they concern electronic, and even printed, works of fiction are left as an exercise for the increasingly frustrated reader.

• Jig the Goblin's sugar daddy poses for fantasy covers. Your eyes will not thank me, but the manufacturers of BrainBleach™ will. It also reminds me of a client's dismay at having a tramp stamp thrown onto her protagonist without any prior notice; the perceptive may have noted that since then, in that bestselling series, the protagonist has been posed so that any hypothetical tramp stamp would not be visible...

I'm going to close today with something that is not a sausage; consider this the real meat of the meal. The United States Court of Appeals for the Tenth Circuit yesterday upheld an injunction granted against Oklahoma's voter-approved "anti-Sharia" referendum, remarking near the end:

Appellants argue that the preliminary injunction interferes with Oklahomans' fundamental right to vote, prevents enactment of the voters' will, and "discourages the voters from participating in the election process."

Federal courts should be wary of interfering with the voting process, but we agree with the district court and the Sixth Circuit that "'it is always in the public interest to prevent the violation of a party’s constitutional rights.'" "While the public has an interest in the will of the voters being carried out … the public has a more profound and long-term interest in upholding an individual's constitutional rights." [S]ee also Cate v. Oldham, 707 F.2d 1176, 1190 (10th Cir. 1983) (noting "[t]he strong public interest in protecting First Amendment values").

Awad v. Ziriax, No. 2010–06273 (10th Cir. 10 Jan 2012), slip op. at 36 (PDF) (ellipses in original, some internal citations omitted).

Leaving aside that, from a policy perspective — indeed, from many policy perspectives — this is the correct outcome, it also points out the real difference between a representative democracy founded on the rule of law and pure populist direct democracy: In the former, there are limits on what the body politic is allowed to do to subsets of the body politic (however vague and inconsistent); in the latter, there are not. That, however, is just the starter course, because the actual meat (I'm not sure whether it's a roast, a stew, or a steak) comes from the Supreme Court's hearings yesterday on the FCC's ban on so-called 'fleeting indecent speech' (and, specifically, the seven words you can't say on radio/television). I have a challenge for the majority in Citizens United, and for those who support the concept that "money is [political] speech:" Make a principled distinction that justifies treating money not as a mere enabler of speech, but of actual speech that necessarily invokes First Amendment protection... that simultaneously justifies treating so-called "four-letter words" and depictions of "naughty bits" as nonspeech that is outside the scope of First Amendment protection while not overturning Cohen v. California, 403 U.S. 15 (1971), which held that a student protestor could wear a jacket proclaiming "Fuck the Draft" without unlawfully denigrating the dignity of a court.

In short, I challenge the Supreme Court to demonstrate in a principled way that even though money is speech, broadcasting the word "fuck" is not. "Because a bunch of white guys in black dresses said so" is not a principled way!

Labels: censorship, civil rights, copyright, intellectual property, jurisprudence, mass media, politics, publishing

link to: 16:12 [GMT-6]

I'm not at all pleased by anything I'm seeing in the Heffalump primaries. It says something quite unsatisfactory that the party is in the thrall of its Know-Nothings, its Klansmen, its Lower-Upper-Middles — its dwarves, now that Snow Reallyreallywhite has gone to sleep (hopefully for a few hundred years).

In particular:

• Ron Paul wants a return to the gold standard along with his crown. I say we should give him both — they're all he's ever wanted.
• Mitt Romney's idea of increased productivity in American business probably includes the AMC Pacer and Gremlin — just like his daddy. Of course, he could probably learn a bit more from his daddy's support of the civil rights movement, support of organized labor, and rearguard action against the Goldwater wing of the Heffalumps, too... although I doubt that he'll ever admit to being brainwashed over Vietnam Afghanistan and Iraq.
• EyeofNewt would like us to forget entirely about his baggage. I guess that means he'll fly Southwest from now on...
• Rick Santorum's particular bigotry merely reinforces the reasons that the Crusades were genocidal acts, if not genocide (because true "genocide" requires an intent to kill, not to kill or convert...). Besides, we've got plenty of frothy mixtures in DC as it is.
• Rick Perry is from Texas, which is disqualification enough (given the last few Texans who've been in or around that building at 1600 Pennsylvania Avenue). And he's a creationist whose ROTC grades during his Texas A&M career (cumulative GPA: C+, at a time of rampant grade inflation at A&M) indicate that his instructors questioned his leadership capability. I suspect that he's continuing to run to keep his profile high for the vice-presidency or a cabinet post.
• John Huntsman, the semistealth candidate, seems to specialize even more in what he does not stand for than do his opponents. It's clear, though, that he and his opponents understand — and stand for — the one thing that Emmanuel Goldstein's incendiary little book identified as common to everyone in the Party:

  The object of power is power.

Labels: politics

link to: 16:10 [GMT-6]

The obvious problem here is a jurisdictional one: The DMCA (17 U.S.C. § 512) simply does not apply outside the United States... and many United States-based pirates use RIM/Blackberry formalisms to evade jurisdiction in the United States. Then, too, a large proportion of the pirate clientele is in the United States, making this all the more frustrating for US-based holders of copyrights. Worse yet — and largely through dubious attempts at administrative convenience and efficiency (the fifth, nonstatutory, but usually controlling fair-use factor) — BigMedia has undermined the credibility of the DMCA system in the first place. Worst of all, too damned many providers are getting too damned much revenue from traffic (whether clicks on advertisements or whatever) to be very interested in actually complying with proper DMCA notices¹... even if they were predisposed to comply with the law as it is instead of with the law as they believe it should be.

The real problem with bending over for the SOPA, though, is that it is founded upon fundamental misunderstandings of both creative activity and the power relationships involved. I'm not going to delve into the dubious enforcement mechanisms or anything else; I propose, instead, that any such power, authority, standing, and right must be limited to the actual creator — not to a mere licensee (publisher, record company) or patron (multimedia). I do not claim that the following changes will completely fix SOPA — but I think they will enable an actual, meaningful conversation concerning its merits that very well may result in something that works without too much collateral damage.

PROPOSED AMENDMENT TO H.R. 3261

H.R. 3261 is amended by adding the following new Section 3:

"3. Limitations on Standing. Notwithstanding the provisions of 17 U.S.C. § 201(b) or any transfer of copyright inconsistent with the succession of interest established in 17 U.S.C. § 203 or 17 U.S.C. § 304(c) as would apply to the work in question, only the Creator of a work as defined in this Act has standing to request any action under § 102 or § 201 of this Act, or to take any action under § 103 of this Act. This limitation on standing under this Act does not act to diminish the rights of any copyright holder or licensee under 17 U.S.C. § 106, 17 U.S.C. § 106A, or 17 U.S.C. §§ 501–513, but applies only to this Act."

H.R. 3261 is further amended by adding the following new Section § 101(25):

"CREATOR — The term 'Creator' means:

   "(a) For audio recordings without visual component, the natural person writer (or majority of multiple natural person writers) plus natural person performer (or majority of multiple natural person performers) of the audio recording at issue;

   "(b) For audiovisual or purely visual recordings, the natural person writer (or majority of multiple natural person writers) plus natural person director (or majority of multiple natural person directors) of the audiovisual or visual recording at issue;

   "(c) For all other works, the natural person writer (or majority of multiple natural person writers).

"For the purposes of this definition only, 'natural person writer' means an individual who contributed discernable original content otherwise protected under the Copyright Act and consistent with Feist Publications, Inc. v. Rural Telephone Services Co., Inc., 499 U.S. 340 (1991), and explicitly excluding any person or entity who might claim 'authorship' pursuant to 17 U.S.C. § 201(b)."

The intended — and, to at least a first order approximation, actual — effect of this language is to remove mere licensees and BigMedia distributors from decisionmaking authority over SOPA incidents. Admittedly, there are some "problem children" among Creators, such as the descendants of James Joyce and Margaret Mitchell, but they are the exception, rather than the rule... and would still have to comply with everything else in SOPA to have any influence. This also prevents mere licensees and distributors from overreaching into rights that were not at issue at the time they acquired whatever rights they were initially granted, and avoids a serious constitutional and international-law problem with forcing foreign actors to recognize the constitutionally dubious work-for-hire doctrine that redefines the "author" of a work to be what the rest of the world — and, in particular, the English-speaking world in the 1780s — would have called the "patron." This is a fundamental problem with the US conception of copyright, particularly measured against both the English common law and the Statute of Anne (1710). It is also the means by which BigMedia stuck its nose into the copyright tent in the first place, inconsistent with the purposes of the Intellectual Property Clause (to "promote progress in the useful arts and sciences", in modern capitalization).

The proposed amendment is just plain more fair to everyone involved, as it allows the actual author to laugh off trivial infringements... and puts pressure on licensees and distributors to actually and effectively exploit their rights in a way that defeats piracy by providing a high-quality product at a reasonable price.

1. I'm going to blow my own horn here a bit. We succeeded with an attack against this last problem in Ellison, in which the Ninth Circuit made clear that § 512(i) — requiring both an effective policy for dealing with infringements (especially repeat infringements/infringers) and reasonable implementation of that policy — is not mere surplus verbiage. We were prepared to go well beyond the defect relied upon by the Ninth Circuit at trial and demonstrate that the ISP had not "reasonably implemented" the defective policy that it did have.

   I suppose that it's possible that virtually every ISP that has been confronted with a credible, fact-based § 512(i) attack has immediately settled thereafter... which would explain why there are virtually no opinions after Ellison that focus on that aspect of the DMCA. Well, actually, it's not: I have personal knowledge that some of the big cases out there should have (on the basis of documentation in my possession and my personal experience interacting with specific ISPs) included a § 512(i) attack on the ISP's eligibility for the safe harbor, but did not. That explicitly includes the now-completed Grokster action; the various assaults on LimeWire; and the current brouhahas regarding YouTube and HotFile. It is not, however, limited to those examples.

   <SARCASM>Of course, that would require relying upon actual facts and performing a prefiling investigation adequate under Fed. R. Civ. P. 11(b)(3), which is inconsistent with the policy stance of BigMedia and too much of BigLaw. Further, it would diminish the motion practice, meaning that BigLaw personnel would have to become familiar with the facts in their cases instead of quotemining from Westlaw/Lexis. Yeah, that's gonna happen Real Soon Now.</SARCASM>

Labels: censorship, copyright, intellectual property, internet, mass media, politics, publishing

link to: 12:56 [GMT-6]

• An alternate explanation for the banking crisis: Banking leaders are psychopaths, and are hired because they're psychopaths. This sheds some rather disturbing light on Montana's rejection of Citizens United (see the next sausage) but ultimately says nothing new... nor anything unique to finance. Have you taken a look at the top leadership of energy companies (both the awl bidness and utilities, in the US) in the last thirty years? How about among defense contractors since the dawn of time?
• I'm still trying to come up with a coherent explanation for Citizens United — not necessarily a convincing one, but a coherent one. The Montana Supreme Court's rejection of Citizens United (PDF) seems, on its surface, to be ideological; indeed, reading the dissents (which are on the basis of stare decisis and the Supremacy Clause), it's a 7–0 rejection of unrestricted corporate personhood (with all of the echoes of Frankenstein — or is that Frahnkensteen? — both intended and accidental). There's something much more disturbing floating in there, though, and it reflects an experiential distinction between the U.S. Supreme Court and the Supreme Court of the State of Montana. If I am reading the various biographies correctly:
  • Of the justices who voted for corporate personhood and against finding that there was a factual basis for concern that corporations actually do unduly distort election results in Citizens United on the U.S. Supreme Court (a total of five), none had extensive experience as either a trial judge or a nonmotions trial-level litigator. However, of the four justices who voted against that position, three did have that experience.
  • Conversely, all of the judges on the Montana Supreme Court had that experience... plus some legislative experience along with it.

  I therefore tentatively put forth the following null hypothesis for testing — and I have neither the time nor the data set to test it:

  H₀: Inexperience with the process of data gathering, data assimilation, and/or conversion of data to valid legal statements of fact — for either judicial or legislative statements of fact — does not influence the weight accorded to statements of fact in reaching judicial decisions.

  This is a non-normative statement and hypothesis — that is, I'm not saying whether it should or should not. For one thing, note that I said "valid" and not "sound".... Regardless, I think it both an interesting academic inquiry and a critical ideological/jurisprudential one.

• Australian sharks are hybridizing, perhaps responding to climate change. One might say the same about their cousins lawyers and legislators, as the climate of legislation has become more legalistic (compare the backgrounds of the U.S. House of Representatives a century ago with those today). Can a hybrid barrister/solicitor in England be far behind? And would he/she wear a powdered wig around the office, or just refuse to wear one to court?
• Professor Madison suggests that his copyright classes are going to be learning about the limits and context of copyright... and, more particularly, about how US copyright interacts with other intellectual property (e.g., trademark), with non-US copyright (e.g., droit morale and droit d'auteur), with non-intellectual-property law (e.g., consumer protection statutes regarding false labelling), and with cultural assumptions (e.g., the limits of "ownership" of cultural intangibles). Sounds like a fun class to me; but then, I'm an IP nerd whose own approach to IP questions — regardless of whether they directly concern authors and other creators — isn't exactly mainstream.

Labels: copyright, culture, intellectual property, jurisprudence, politics, science

link to: 10:42 [GMT-6]

• Stephen Hawking nears 70 and is still more productive trapped inside of an ALS-ravaged body than any politician or business leader.
• Sauron Rupert Murdoch joins Twitter. How's that MySpace purchase working out again?
• Another lament about resale price maintenance agreements for e-books (misleadingly mislabelled the "agency model" by its conglomerate-publisher advocates) and their negative effects on everyone involved. When you come right down to it, the real justification for RPMAs in book sales is to prevent unpredictable sales shifts between products in the same conglomerate more than anything else. This upsets all of the pseudomathematical models from accurately predicting cash flow, royalty obligations, etc.,¹ and therefore upsets all of the MBAs now running the show.
• The almost incomparably wise Ursula K. Le Guin objects to the award culture and its underlying assumptions. She's a lot more generous than I would have been: The primary objection that I have to awards is that too often, they're made too soon. To draw on an example from her piece, right now is about the soonest that anyone should really, really be considering what were the "best" works in category x of the last half of the twentieth century under any criterea — the shininess of the new should have worn off by now so that we can realistically expect to compare, say, JR (National Book Award, 1976) to Sabbath's Theater (National Book Award, 1995) and come up with a reasoned answer. It won't be a definitive answer, by any means — if only because taste really does enter into the discussion — but it will be reasoned. And the less said about the way H'wood establishes eligibility for awards based on when a work is in limited release in two cities, instead of generally, the better...

1. Two observations:
   • Just because it's got numbers associated with it doesn't make it mathematically sound. If you want a classic example, consider net-present-value calculations, which are no better than the multiple assumptions built into them about interest rates, uniform time-value, opportunity cost, etc.
   • Then, too, there's the issue of royalty obligations and predictability. If one believes publisher accounting, or even the stark evidence of publisher royalty statements and the absence of checks attached thereto, the "vast majority" of books never end up paying royalties to authors; instead, royalty earnings chew away at the advance, which all too often remains as out of reach as the tree is to Xeno's arrow. For example, if one accepts the industry meme that 80% of books never earn out their advances, a particular sales cannibalization within an imprint — or even across imprints within the same conglomerate — has a (0.80)² = 64% chance of not increasing the actual publisher outlay to any author. Only when sales aggregate do they result in such payments... and that demonstrates the quantum effect of royalty calculations. (Unfortunately, my HTML-fu is not good enough to accurately represent the underlying math.)

Labels: arts, mass media, publishing, science

link to: 07:42 [GMT-6]

By this time tomorrow, anyway. The preparations for that little reconnaissance mission have eaten up a lot of time this past month!

• The Economist offers an off-the-wall vision of Martin Luther as a precursor to the Arab Spring... which makes sense if, and only if, one can distinguish between "church" and "state" in the Islamic world. On the other hand, the thus-far-successful movements have done precisely that, in states that had been struggling to do so for decades, so maybe it's not such a bad analogy after all. I seriously doubt that anyone will be nailing 93 objections to abuses of theocracy — like this one — to any door anywhere in the Islamic world in the near future, though!
• Much as I hate to even acknowledge THR's current "journalistic standards," here's an interesting piece on the dispute over the origins of The Last Samurai that only hints at a couple of things that I know a lot more about than does Mr Gardner. Let's just say that he's understating the endemic disrespect for intellectual property at That Studio... which is, after all, related to this former opponent of mine (in fact, they had common ownership at the time) and is a really sore loser.
• My colleague Professor Phillips offers some historical context for IP (and copyright in particular) through his unusually accessible academic writing. Authors, in particular, should consider the issue of common-law copyright (PDF) and how it relates to publisher overreaching on electronic rights in older books (note to Harper's PR flacks — you should consider talking to competent litigation counsel before you state legal conclusions like "grants us the exclusive digital rights to the book" that seem inconsistent with the actual wording in the contract... and with the result of previous litigation over similar language). But perhaps that's just me noting that we're fighting the same centuries-old battle again...
• John Scalzi tries to engage with a blogger about whether publishers treat readers as "customers" and falls into the Warden's trap when dealing with Luke (and damned near everyone else): A failure to communicate. The problem is not with publisher failures or successess; it is not with idiosyncratic views by segments of the readership or profound common beliefs; it is with the definition of "customer"... and whether readers view the publisher or the author as the vendor. This is not an easy question for anyone, but it is perhaps clearest in a certain subspecies of reader: The professoriate seeking textbooks. Without naming any names, I recall a law-school class for which the professor chose a book for a class he was teaching for the first time based solely upon his respect for the author's academic work... and swore to never again read anything longer than a law journal article from that author because the publisher screwed up the order so that the book wasn't available until two weeks into the class and edited and printed it incompetently on top of the lateness (admittedly, I have no idea whether the author's possible lateness/noncooperation might have contributed to this). He blamed the author, not the publisher... and ordered a different book from the same publisher the next time he taught that class (at another school).

  This is actually closely related to the publisher-overreaching in the last link of the preceding item. Publishers — particularly for category fiction — are becoming increasingly hostile to authors' control of the author's own name, primarily through noncompetition clauses that are becoming broader and less negotiable. Returning to the issue of "customer," recognizing that there's a competing concept of "vendor" illuminates most of the disagreement between Mr Scalzi and that other (semipseudonymous) blogger. The logical antecedent of "customer" is "of what" — and there's a considerable difference between the fulfillment aspects of being a publisher and the editorial aspects of being a publisher. If you can't agree on who/what the vendor is, you can't agree on what responsibilities that vendor has to a customer, let alone who the customer is (and is not). Then there's the monopoly/monopsony problem on top of that!

Labels: copyright, intellectual property, life, mass media, politics, publishing

link to: 13:18 [GMT-6]

This leaves a considerable hole in the theoretical and practical landscape of "uncorporations" — and leaving aside the personal issues, that's a bad thing in this day of proliferating llcs as the purported "solution" for everything.

Labels: jurisprudence, miscellany, publishing

link to: 14:02 [GMT-6]

• The first notable death in question is Christopher Hitchens. This is the loss of an interesting voice in the church-versus-state realm that will be missed... but I'm not going to insult what he stood for by wishing that he "rest in peace," because he is (everybody is). I may not have agreed with everything he said — in particular, his support for the amoebic-dysyntery-like spread of "intervention" in Iraq and Afghanistan — but he was always entertaining, if nothing else.
• The second notable death in question is one of the true tyrants of the world, Menta Lee-Il's uncle Kim Jong-Il. Mr(?) Kim has been more responsible for destabilization in nuclear proliferation in particular and in East Asia in general than any other single individual in the last two decades. Interesting, given the history of his treatment by Jon Stewart, that he "chose" to die right before a holiday week at The Daily Show so that it won't be fresh news by the time they're back...
• Now turning to someone who probably wishes he was dead — or would if he had any shame, which I cannot guarantee based on his other writings — consider the ignorance about Amazon and local bookstores spewed forth by not-famous-author Farhad Manjoo. I'm not going to spend time on how the author blogosphere has responded; instead, I'll try to educate y'all on a much more subtle way that Amazon is not as good for authors as local bookstores are: Royalties. In short, particularly for older works, Amazon sales often pay less to the authors.

  Do I have your attention now?

  This involves some simple math and complex contract interpretation, so please digest this whole sausage first. When authors review contracts to see what they should be getting for royalties, they tend to focus on the obvious stuff: x% of list price. That is, indeed, the default royalty calculation for printed books (at least at present; more and more publishers are pushing toward a y% of net model, but even those contracts follow the rest of this paragraph...). The kicker, though, is the "high discount" clause, which cuts the royalty in half for copies "sold"¹ at a "high discount." As y'all may well be aware — and is the factual context even if you're not — books are sent to bookstores, including Amazon, at a discount from the list price. The ordinary terms are called the "long" or "trade" discount. Historically — that is, from the late 1960s to about 2003 or so — this was a fairly iron-clad 40%. Sometimes, though, there were "special deals" offered at higher discounts, which the publisher then demanded be treated differently. If you're cynical, you can probably spot what's coming...

  The high-discount clauses typically kick in at a 50% discount from list, at least for contracts negotiated before mid-2004 or so (and even for the vast majority of contracts negotiated after that time). The problem here is that Amazon as its standard term demands a discount of greater than that from many publishers, particularly independent small presses (which, BTW, one is most likely to encounter at an independent bookstore); as of early 2010, the standard terms demanded of Publishers Z₁, Z₂, Z₃, and Z₄, for example, was 52%. That would trigger the high-discount clause in older contracts (and I've confirmed that Z₂ and Z₃ have invoked that clause) for calculating author compensation for every sale through Amazon. What makes this worse is what will happen when Z₄ is acquired by a conglomerate and becomes, at most, a brand subset — like Buick — because the existing distribution agreements will continue until renegotiated...

  Now, this does not hold true for all publishers, or all books, or all of anything, sold through or via Amazon; one of the ways that the Big Brazilian River has thus far avoided being dammed by the antitrust authorities is that it maintains the pretense of negotiating contracts with vendors. Similarly, not all authors have been so foolish as to accede to a 50% trigger for the high discount clause (although, to be honest, I've yet to meet an agent or author who had considered this issue until I pointed it out). Nonetheless, there's a substantial chance that when someone buys a book from Amazon that was printed by a publisher that is not one of the Big Six (and even if it was), the author is getting a lot less money from that transaction than if that same book were purchased via the (now, lamentably, closed) Pages for All Ages here in Chambanana, or the Elliott Bay Book Company in Seattle, or the Tattered Cover in Denver, or any other independent bookstore.

• Speaking of price manipulation and how that affects authors, Michael Chabon is rightly bitching about e-book royalty rates, and the antitrust lawsuits concerning the misnamed "agency model" have been moved to New York, consolidated there, and left under the care of the lawyer who filed the first one. For some reason, nobody has asked me to be an expert witness on this stuff. Yet. (Or, given who some of the other counsel are on this, ever...)

1. This is not the time or place for spending a lot of time on the returns system, or the distinction between consignment and sales, or anything else like that. They're all critically important, but for the purposes of this paragraph they're red herrings. Stinky, rotting red herrings that are poisoning the rest of the fish barrel, but still...

Labels: intellectual property, internet, politics, publishing, science

link to: 12:21 [GMT-6]

• So EyeOfNewt doesn't think that "Palestinian" is a "real" ethnicity worthy of political recognition, eh? I was always taught that glib generalizations should have at least some basis in fact, unless they're being used solely for comic relief. This one must have been for comic relief.

  The most obvious, relatively nearby counterexamples to EyeOfNewt's lie only a few hundred kilometers due north of Palestine: Kurds and Armenians. Of course, the implicit comparison of Israel to the atrocities committed by the decaying Ottoman empire as it sank into a two-class society consisting of a decadent, "religiously correct" ruling class determined solely by ancestry and a randomly oppressed peasantry isn't exactly what EyeOfNewt intended, now, is it? One could also point to the "former Yugoslavia" (or, if one is feeling particularly whimsical, the "former Austro-Hungarian/eastern Hapsburg domain") for exactly the same problems with self-designation of ethnic groups seeking political independence. Gavrilo Princip, anyone?

  More to the point — especially if one likes one's political rhetoric like Turkish coffee (which is to say strong, black, and bitter) — EyeOfNewt's denigration of Palestinians as an "invented people" exactly matches Georgia during the civil rights era (and I mean EyeOfNewt's home state, not the former Soviet Republic — although come to think of it...). It also exactly matches the idea of "Americans" as a distinct "people." More to the point, it also matches the idea of consolidating all of the various tribal factions on the eastern seaboard of North America into "Native American" or "Indian", and then adding to the designation by later conquest so that it includes tribes that would have slaughtered each other on sight. Somehow, I don't think that EyeOfNewt has ever considered the kinds of animosities between pre-Balfour Declaration "native residents" of Galilee and the Negev... or, for that matter, considered the friction between Ashkenazim and Sephards, or the undercurrents in the story of "the Good Samaritan." No, it's all just another version of manifest destiny, because the implicit presumption is that arch-Zionist dominance of the region and displacement of its population is right... and has no exceptions or limitations.

  EyeOfNewt's position would have been more defensible if he had extended it to its extreme: All "ethnicity" is an invented psychosocial construct that changes substantially over time and geography. That's a position I could, and do, agree with... but it contradicts "American exceptionalism," and in particular "white christian American exceptionalism," so you're just not going to see it considered seriously in American political debate. From or by anyone.

• On a lighter note, how about invented languages to go along with the invented ethnicity?
• One of the downsides of patronage as a model for supporting the arts is that sometimes it's a choice between starving and sleazebuckets. At least in the marketplace one can pretend that it's just the handing over of greasy currency — or, these days, electronic banking transfers — in an arms'-length transaction. I, too, though, have seen PBS acknowledgements of Koch "charitable foundations" on science shows that skewed away from discussing climate change...
• Of course, that also brings up the problem of the buggy-whip industry — that is, the existing publishing apparatus, and in particular that devoted to scholarly works. The problem here is not transition to different models while retaining the (imperfect, but better than the alternatives) peer-review system, such as SSRN and arXiv and PLOS, but the destructive effects on some of Schumpeterian creative economic destruction — that is, the casualties/collateral damage of change. For some reason, those whose personal interests are most directly intertwined with the status quo always seem to be most strongly set against changing it... even, or perhaps especially, when change is inevitable.

  Conversely, it also implicates antitrust problems in the existing industry subsegment, and the fact that no matter where one comes down on the question, the answer isn't going to be quick. Or cheap. Or casualty-free.

• Professor Bambauer describes one response to Facebook's facial-recognition software in startlingly clear terms:

  One proposal raised was to provide people with copyright in their faceprints or facial features. This idea has two demerits: it is unconstitutional, and it is insane. Otherwise, it seems fine.

  More than anything else, this points out just how difficult it is to adapt the common-law model to rapid change in context.

• On another lighter note, smoking may make your nipples fall off. That I'm calling that a "lighter note" may tell you more about my sense of humor and prediliction for multilayered puns than you really want to know.

Labels: copyright, culture, intellectual property, politics, publishing, science

link to: 22:49 [GMT-6]

It would look even more... interesting if we could substitute in the ACT score median for the respective teams instead of the entire freshman class.

Labels: culture, politics, sport

link to: 10:41 [GMT-6]

• GBS Update: Yes, I know I'm late on describing the legal theory of the HathiTrust complaint, and its flaws. Literally as I was getting ready to post the first entry, I got an outside consult on the matter, so I delayed the post to finish up the consult. And in the meantime:
  • The Open Book Alliance (a Google Book System "competitor" partially led by Micro$oft) has used the Copyright Office's triennial review of "technological protection measures" (required under chapter 12 of the Copyright Act) to object to Google's system for keeping non-Google-affiliates (like OBA members) from accessing even public-domain works that are otherwise available to libraries under the GBS.
  • The HathiTrust defendants have answered the complaint with a badly-conceived laundry list of alleged "defenses" and "defects" (pages 22–24) that will eventually kill off a small forest, but largely hides the strategy (and sheds little light on the copyright issues involved). Frankly, the best defenses available and pled were all based upon the procedural and constitutional jungle already discussed...
  • Google has announced its intention to file a motion to dismiss later this month in the GBS matter itself. This will presumably rely largely upon allegations of fair use under § 107... which is an inherently flawed strategy, and procedurally improper. Section 107 — however badly worded — is not properly decided on a motion to dismiss; it is, instead, a fact-based defense that could be decided "on the pleadings" (Fed. R. Civ. P. 12(c)), on summary judgment (Fed. R. Civ. P. 56), or at trial... but not, as a matter of law, based solely upon the complaint's failure to state a claim (Fed. R. Civ. P. 12(b)(6)). That's because all allegations in the complaint must be taken in the light most favorable to the plaintiff, even under various heightened pleading standards — and there are no allegations of fact in the complaint sufficient to resolve the four-factor test required by the § 107 defense.

    So, then, why would Google move to dismiss the complaint when it can't win? Well, for one thing, because judges in the Second Circuit (albeit not Judge Chin) have a long history of treating class-action motions to dismiss as motions for judgment on the pleadings... even though Rule 12(c) explicitly says judgment on the pleadings is appropriate only after the pleadings have been closed. For another, this is part of the process of educating the judge on the issues, in a general sense; that's not really necessary in this matter, though, given the extensive ruling that Judge Chin has already made. Most importantly, though, it delays things — considerably. (Not to mention runs up law firm billings.)

• The European Commission has announced a formal antitrust investigation of European e-book sales and pricing. Given that somewhere between 80 and 85% of these formal investigations result in formal charges by the Commission — and that well over 90% of the ones that become formal result in changes in behavior designed to blunt any such charges — I expect things to get more... interesting on the e-book arena in Europe very, very shortly. That will spill over to the US at some point, too.
• No profits to be found in H'wood, right? Is anybody really surprised? Those who've been paying attention to publishing contracts imposing net-receipts royalties for e-books (see the previous item!) will start wondering if a movement of bookkeepers from Los Angeles to New York, within the entertainment conglomerates, might be in the offing. Or has already happened.

Labels: copyright, intellectual property, internet, jurisprudence, mass media, publishing