|Scrivener's Error||Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.|
link to: 09:54 [GMT-8]
Sometimes it really is more important to ask the question than to find "the" answer; after all, those answers are often fixed in time and avoidance.
There's a more fundamental problem lurking underneath, though: The presumption that some set of social norms accurately implies the acceptable underlying individual thought- and personality processes... and that having a distinct, describable, nonnormative condition is somehow defective and must be corrected. A number of years ago one of my clients was going through a divorce proceeding (I wasn't counsel in that proceeding). In the course of the proceeding, the spouse and the spouse's lawyer kept shrieking "hypergraphia!" as some kind of evidence that my client would be an unfit parent and therefore must not be allowed custody of any kind. They neglected to put any context on their claims, though... such as noting that my client was a multiple-bestseller author whose working process involved writing summaries of research to ensure understanding of the material before writing the science-based books for which my client was known.
Bowman principally argues that exhaustion should apply here because seeds are meant to be planted. The exhaustion doctrine, he reminds us, typically prevents a patentee from controlling the use of a patented product following an authorized sale. And in planting Roundup Ready seeds, Bowman continues, he is merely using them in the normal way farmers do. Bowman thus concludes that allowing Monsanto to interfere with that use would “creat[e] an impermissible exception to the exhaustion doctrine” for patented seeds and other “self-replicating technologies.”
But it is really Bowman who is asking for an unprecedented exception—to what he concedes is the “well settled” rule that “the exhaustion doctrine does not extend to the right to ‘make’ a new product.” Reproducing a patented article no doubt “uses” it after a fashion. But as already explained, we have always drawn the boundaries of the exhaustion doctrine to exclude that activity, so that the patentee retains an undiminished right to prohibit others from making the thing his patent protects. That is because, once again, if simple copying were a protected use, a patent would plummet in value after the first sale of the first item containing the invention. The undiluted patent monopoly, it might be said, would extend not for 20 years (as the Patent Act promises), but for only one transaction. And that would result in less incentive for innovation than Congress wanted. Hence our repeated insistence that exhaustion applies only to the particular item sold, and not to reproductions.
Slip op. at 78 (citations omitted).
This is not, as it might at first seem, inconsistent with the recent decision in Kirtsaeng. To begin with, copyright is (a) fundamentally about copies in the first place, as opposed to right to "practice" an invention, and (b) unfortunate in using "exhaustion" to mean something analogous to, but still quite different from, what "exhaustion" means in patent law. The key distinction is this: In Kirtsaeng, the only "violation" alleged was a purely commercial one: Mr Kirtsaeng's scheme only acted to (perhaps) reduce the publisher's income from its book (although given the different cost bases, etc., it's entirely possible that the overseas editions are actually more profitable to Wiley), not to increase the actual supply of the copyrighted articles. Mr Bowman, however, engaged in conduct fundamental to the patent: He increased the supply of a patented article without a license to do so.
And, thus, the implications for e-books and other digital copyrighted works. Bowman reinforces that one may not sell (or otherwise dispose of) copies made of an electronic copy purchased/licensed by an end-user. (We'll leave aside the epistomological question of when one makes a "copy," given the technology involved.) Kirtsaeng reinforces that one may dispose of one's own lawfully purchased copy as one sees fit. The middle case, though, is troubling: Is one entitled to repurpose a lawfully purchased copy for a different use, such as translating a non-DRMed epub into a mobi file that can be read on an older Kindle? What if DRM is involved (see 17 U.S.C. ch. 12, which appears at first glance to prohibit breaking the DRM... even though each lawfully purchased device arguably breaks DRM)? What if there's patented software involved? And, most crucially, what if one's policy preferences in the answers to these question are not clearly the way the law is written — particularly if the law was written decades before any of the actual "violations" became possible, let alone widespread and socially acceptable (among a subset of the populace, anyway)?
link to: 15:12 [GMT-8]
Just some miscellaneous notes in passing —
Your customers are not your bloody billboards.
Especially not those of us who have worn a uniform. I do not want, and will not wear, your logo or brand identification on my casual clothing (or, indeed, any clothing). It's especially ridiculous for not just casual clothing, but inexpensive casual clothing, to be "forced" to show where I shop. A simple, solid mesh polo shirt should not tell everyone that I shop at Target, or at Kohl's, or wherever. You should be paying me to be your bloody billboard... and it should be strictly my choice, not mandated by everything in the store bearing somebody's external logo. The only such logo I've ever tolerated is the shiny metal "U.S." on each side of my lapel, so you can keep your bloody polo ponies. I'm not about the clothes; I'm about me.
The implications of CLS Bank for the Internet are many and varied. For one thing, seven, or perhaps eight, of the judges imply that merely creating an algorithm and embedding it in a computer system can never be eligible for a patent. This obviously implicates Amazon's "one click" patents; it also implicates the very data on (and off) the 'net, particularly compressed graphics (.gif), video (.mpeg), and audio (.mp3) files — all of which are or have been subject to patents, licensing transactions, and litigation over the years. Perhaps this is merely a long-overdue recognition that computers are no more fundamentally different from "ordinary" processing (and worthy of a patent) than is a specification that a banking transaction must take place in an artificially-lit space on the thirtieth floor of a skyscraper. Perhaps this is merely a long-overdue recognition that an awful lot of things that lack an "inventive concept" (see slip op. at 27) are nonetheless being patented because the examination process has historically neglected subject-matter eligibility, particularly in the face of "process" patents. Perhaps there's even more going on.
And perhaps the entire apple cart is going to be overturned yet again in the next few weeks when the Supreme Court decides, in Myriad, whether or not isolated human genes are patentable subject matter; CLS Bank implies not. The most important implication, though, is that patentability is often a sufficient motivation to do basic research, but not a necessary one... because not all scientists, engineers, and innovators are in it solely for the money.
link to: 10:49 [GMT-8]
Whether these induce vertigo or are induced by vertigo is for another time.
This is just another data point on the "close the bloody monasteries!" chart; the military academies no longer serve a unique purpose, and their disadvantages outweight their advantages both culturally and substantively. Hell, the "leadership lessons" of the first year at each Academy are nothing but training in harassment... by the fourth-year students! The Academies manage to graduate a fair number of outstanding officers — but not distinctly different from ROTC and/or OTS/OCS since the early-1970s reforms in those programs. Bluntly, there is no place any longer for officers produced by locking eighteen-year-olds away for four years completely away from the context of those they will be expected to lead at the end of that period.
link to: 15:40 [GMT-8]
... or, in Sherlock Holmes terms, "The Case of the Egregiously Misallocated Budget."
This particular filmgoing experience was a rollercoaster ride... and not necessarily in a good way. It started badly, stalled thanks to the bad start, got a bit more comfortable, and then ran through the puke-inducing part of the ride — all before the feature. And the feature was a severe disappointment after the first third, thanks to that egregiously misallocated budget.
Things started off badly with incompetent theater management. The first "early bird" showing was supposed to be at 0900, followed by another at 0930 and a third at 1000. I showed up at 0855... and the box office was not open; neither was the entry to the concourse for the fools who bought their tickets online and swallowed the 15% "service fee." And so it rolled past 0900. And it rolled out to 0915... at which time the janitor unlocked the outer door (this is a mall location) to allow the box office personnel in, who promptly unlocked things in precisely the reverse order necessary to allow the crowd of approximately 30 people who clearly already had tickets for one of those early-bird shows to get into the theaters. Then, on top of everything else, one of the two ticket-sellers was clearly in training on the first summer blockbuster weekend. It's not her fault: It's management's.
So I ended up with a ticket to the 1000 show, and wandered around the food court (this mall's stores don't open until 1000, even on weekends) with my overpriced coffee. I then went into the theater and found that — unlike virtually every theater I've sat in in this country — the seats actually had decent back support and were clean. (Well, they bloody well should be clean for the first showing of the day, but they usually aren't.) Things were looking up! Until I looked up and saw the trailers. I've never before sat through seven trailers for tent-pole films and had each one make me less likely to see the films being advertised... thus, the puke-inducing part of the ride. These trailers were desperate; I predict that Disney is in for a disappointing summer... or I would if film quality above the level of Gigli and Batman & Robin made a credible, predictable difference to box-office receipts.
And now, it's time for
Sherlock Holmes Tony Stark to make his entrance. If you're looking for spoilers, this isn't the place — this is a meta- and process-oriented review. From the meta perspective, the frame sort of works... for a different film entirely. The first third of the film actually sets up a decent situation, at which point the budget misallocation takes over. All scripts were confiscated at the Tennessee border, and were not returned for the remainder of the shoot. Hell, I don't think anyone was even looking for them: All the money that should have gone into continuity and the script went into a forty-second special effects sequence. Just pick one — virtually every special-effects sequence in the last two thirds of the film is entirely disposable, even for a comic-book-superhero film! Then, too, a little continuity would be nice, such as deciding whether Rhodes is a lieutenant colonel or a colonel, or whether the car windows are up or down. It's also entirely possible that some emergency response units would have begun converging on the big explosions beginning about twenty minutes before the end of the film; oops, there's that real world intruding again. Finally, it was a huge narrative error to try to return to the initial frame for the post-credits sequence... especially considering what was left out of that post-credits sequence. It was overobvious sketch comedy and nothing more, unlike the other corresponding sequences in Avengers-related films over the past few years.
A deeper, script-related problem was that the psychological and character setup of the first third of the film was thrown away at the Tennessee border. It had no bloody consequences; instead, we were stuck with Evil Supergenius Plot #2 Variant C, accompanied by credulousness entirely inconsistent with Tony Stark's and James Rhodes's characters and previous (that is, previous to this film) uses of technology, recordings, surveillance, etc. The internal-betrayal-in-politics variant undermined anything else that could have been done, particularly after its endgame was telegraphed so stereotypically (and so early).
And thus, the egregious budgetary misallocation. The filmmakers should have cut $2.5 million from the special effects budget, added $200k to the budget for continuity checkers, and added $2.3 million to the script budget... for a single scriptwriter, not a team or sequential polishing effort. It also would have helped if, instead of just having the idea to confront post-event wobblies (which is the closest I'm going to get to a spoiler), the script had actually done so; it's not like there's a shortage of real people who know something about this. Oh, there's my problem: I expected H'wood, the world of superhero comics, and most especially Disney to reach outside of themselves to bloody learn something, and then apply it to the bloody product.
The cast generally did what it could with the crap it was handed, but there were too many noticeable moments that were a beat off as the actors waited for the director's promised off-set event to happen. Iron Man 3 is not as bad as X-Men Origins: Wolverine... but it's not inappropriate to mention them in the same sentence, and for many of the same reasons.
link to: 09:06 [GMT-8]
As Writer Beware notes (and if you're not reading Writer Beware and you're an author, you're seriously harming your own interests), Penguin's newly acquired Author Solutions unit has been sued for fraud in a class action. I won't say I have nothing but praise for the complaint — I think it's less clear on a couple of nuances than it could be — but it's so vastly better than the usual complaint in publishing that it should be studied fairly carefully. (It's also a lot better than most commercial-transaction-based class-action complaints.) Victoria includes a link to the complaint in her WB announcement.
The James complaint, of course, is not entirely complete; it can't be. For one thing, it has to limit itself to the specific causes of action for which the plaintiffs have standing. That means that, for example, this set of plaintiffs can't point out the appearance of collusion in setting authors' share of e-book royalties as a standard, essentially nonnegotiable 25% of net.
Presuming the truthfulness of the complaint (and I've got plenty of documentation indicating that it is, if anything, an understatement), the James complaint does have implications for the settlement in the e-book antitrust matter that the corporate parent signed. Given the immense market share of Author Solutions (and, hence, of its corporate parent) in the egregiously misnamed "self-publishing service bureau" market, anything that Author Solutions does that restricts price competition or availability of goods — that is, implicates the Sherman or Clayton Antitrust Acts — may breach Penguin's settlement agreement with the United States. That settlement agreement requires the settling publishers to refrain from antitrust violations. The allegations in the James complaint at least raise the question, and are probably sufficiently detailed to survive a motion to dismiss even without further investigation.
No physically deformed orphans were harmed in the writing of this post.
link to: 14:40 [GMT-8]
I'm glad Jason Collins can self-identify himself to his own identity in public. Good for him. Of course, a couple of generations ago — maybe as little as a generation ago — his skin color would have been an equally significant barrier. Then, in some parts of the country it would have been a problem last week.
The real problem is fear of difference. That could be skin color, or sexual orientation, or religion, or anti-intellectualism, or even just political opinion. I acknowledge Collins's courage in proclaiming himself Other. It pisses me off that his simple statement is considered an act of courage... and that's not his fault, because it really is an act of courage, even though it should take no more courage than stating one's name. It's our fault, collectively, more than his courage. More particularly, it's the fault of those who would divide and conquer for their own advantage — especially, but not only, religious fundamentalists of all religions (and that includes everyone, not just reprobate Yanks). It's rather ironic that the military and Congress have been more open about sexual preferences than US professional team sport... but really not that surprising.
link to: 14:29 [GMT-8]
A fascinating case today out of the Second Circuit struggles mightily to make sense of appropriation art, and to categorize and analyze it within the framework afforded by the Copyright Act's fair use provisions in § 107. In the end, it fails, indicating that the Supreme Court was right over a century ago when it proclaimed judicial incompetence at evaluating art.
It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge. Yet if they command the interest of any public, they have a commercial value — it would be bold to say that they have not an aesthetic and educational value — and the taste of any public is not to be treated with contempt. It is an ultimate fact for the moment, whatever may be our hopes for a change.
Bleistein v. Donaldson Litho. Co., 188 U.S. 239, 25152 (1903). Apparently the Second Circuit did not catch the irony that Bleistein is the case in which the copyrightability of photographs was confirmed... and today's case involved appropriation of photographic portraiture. (So, for that matter, does the song lyric quoted in the title of this blawg entry... if a somewhat private appropriation and transformation!)
Today's decision in Cariou v. Prince, No. 111197 (2d Cir. 25 Apr 2013) (PDF), arose from an artist (Prince) appropriating published images in a book by a photographer (Cariou) for his own purposes. This was a collage-and-partially-transform effort; one representative example, discussed and reproduced in the opinion, involved cutting out the people from Cariou's book, then creating a collage with some alterations of both the background/context and cutouts and coloring on the photographs themselves (slip op. at 6). The District Court had found that Prince's uses were not fair use under § 107. The Second Circuit... well, that's a complicated story.
First of all, one must note the dubious continued worship of its own past in the Second Circuit's opinion. Not only is Judge Leval's 1990 article cited as the theoretical foundation for fair use (instead of, say, the statute, or the Constitution, or the Supreme Court decisions reifying the legislative path to § 107, or indeed the extensive discussion in other Supreme Court decisions since Judge Leval's article was published), but it provides the foundation for the artistic judgments that lead to its decision today. This would be difficult enough for a more-clearly-human-origin work such as a set of watercolors; it is rather overconfident when dealing with photography, which has historically had significant difficulty in demonstrating sufficient originality to sustain a copyright in the first place. Imagine, for a moment, that Cariou's photographs were not carefully posed portraits, but snapshots taken with a high-end camera of scenes he just happened to come across on a tour of Jamaica; or, conversely, that rather than mere portraits they were heavily costumed, posed works involving avant gardeish lighting and themes.
This leads to the real problem with Judge Parker's majority decision: It does, and tries to do, far too much. Rather than send the matter back for reconsideration under the proper legal standard, allowing the parties to restate their evidence and explain it under the proper legal standard, for 25 out of 30 of Prince's works it reverses the trier of fact and substitutes its own factual conclusions... requiring entry of final judgment on those 25 items. Further — in the kind of overconfident prose all too common throughout copyright litigation from both the parties and the judges, and distressingly so in the Second Circuit — the rhetoric of the opinion goes much too far in apparent pursuit of establishing a definitive legal framework based upon a very limited and specialized set of facts. Of particular note, Prince (admirably, IMNSHO) did not blather forth with an extensive post hoc legal rationale for his artistic decisions during his deposition... but that actually cuts both ways, and exposes one of the principle errors in contemporary fair use analysis. The artistic intent and process matter only before a work is created under the fair-use analysis; this leads precisely to the problem presented by Dr. Seuss Enters. L.P. v. Penguin Books USA, Inc., 104 F.3d 1394 (9th Cir. 1997), in which a parody defense failed primarily because, when one reads between the lines, the panel of judges found "making fun" of a difficult and controversial judicial proceeding (the OJ trial) inappropriate — perhaps under some subconscious "there but for grace go I" rubric. Conversely, it also leaves decisions like that in Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687 (7th Cir. 2012) — a decision cited with approval in Cariou — almost inexplicable precisely because intent was not at issue in Brownmark. In Brownmark the Seventh Circuit (rightly) found that a visual comparison of two works led to an inescapable conclusion of "parody" on the pleadings without any other evidence.
Ironically, the result in Cariou is predictable from the fifth, nonstatutory fair use factor. From Prince's perspective, it would not have been administratively practicable for him to request, obtain, and presumably pay for permission to do what he did, regardless of anything else, for the forseeable market for his works. Although the Second Circuit seldom acknowledges the primacy of this fifth factor in its decisions, it has underpinned its fair-use jurisprudence in the visual arts since before the 1976 Act was passed. (Whether it should is a different question.) In this particular instance, Prince would have been required to go through a publisher for the permissions... and I'm afraid that the art-book publishing niche has a, shall we say, exaggerated idea of both its own entitlement to be the permissions gatekeeper and the market value of those permissions (while sending far too little of those proceeds on to the artists).
As usual, the real fun is going to begin when lawyers — the very ones not competent to be "final judges of the worth of pictorial illustrations" — begin to overinterpret Cariou for their own nefarious purposes. On one tentacle, you're going to see claims that Cariou means that cut-and-paste collages that do more than minimal changing of the images taken in the collage are somehow inherently fair use. On another tentacle, you're going to see claims that Cariou means that cut-and-paste jobs with a one-to-one correspondence can never be determined to be fair use on summary judgment. On yet another tentacle, you're going to see immense confusion when trying to apply Cariou outside the context of photography and of the visual arts in general, such as a verse-level medley of songs not previously recorded or of plain verses rather than song lyrics. In short, Cariou does not advance the state of the law; while it rejects one particular judicial resolution in the trial court below (rather, 25 out of 30, with 5 to be reconsidered), it does not provide a replicable framework. And that is precisely the point of the reservations in Bleistein quoted at the top of this blawg entry... and exposes that doing much with Cariou as "precedent" is going to be transformative appropriation art in itself.
link to: 15:23 [GMT-8]
I'm still recovering after the big opening Saturday, so this collection of link sausages is probably going to seem rather sparse.
Congratulations, England! Now your libel law will be up to the US standard. In 1953. Even under the reforms, the UK equivalents of Jerry Falwell in the outhouse, civil-rights-opposing government officials (although there may be a loophole), and the John Birch Society can still munge up the UK courts with inappropriate claims to shut up their critics... and it will still be the burden of the speaker to prove truth.
link to: 14:05 [GMT-8]
... and sometimes it bleeds into other things in unexpected ways.
I saw an interesting summary of news on mortgage foreclosure litigation this morning that impinges on the Authors' Guild's proposed settlement of the Google Books case... and reflects even more badly on the AG's failure to pay attention. As y'all might be aware, there was a huge settlement on behalf of people harmed ("defrauded" would have been the finding had it gone to a verdict) during the mortgage crisis by improper foreclosures. People have finally started getting checks, four years and more after they were harmed, as a result of the settlement.
I only wish I was making this up. The explanation being offered/inferred is that the settlement processor, Rust Consulting, didn't move the money into the account those checks were written on. Of course, that begs the question of why the money hadn't been paid directly into a segregated, for-this-purpose-only account upon its initial receipt... but the finance industry's obsession with "short-term floats" is an adequate, if repulsive, explanation. <SARCASM> I'm nonetheless completely confident that this is an isolated incident. </SARCASM>
Care to guess who the Authors' Guild and its counsel had contracted with to manage the proposed Google Books settlement? That's right, Rust Consulting... whose "opt-out list" wasn't even alphabetized in a coherent fashion. Since it was an "image" PDF, it wasn't searchable, either... and the Federal Rules of Civil Procedure, not to mention the local rules of the U.S. District Court for the Southern District of New York, require the maximum possible use of searchable PDFs. That comes closer to "disdain for absent class members' rights" than anyone should be comfortable with, since the only way to be certain that one's opt-out had been received was to find it on that list!
Just another data point for your day that doesn't involve a dysfunctional, nonproportionally-constituted legislative body being held hostage by its own rules.
link to: 09:26 [GMT-8]
And I'm not referring just to any one thing.
Ultimately, we're stuck coming to terms with an act of madmen (and this looks to my somewhat-out-of-practice eye like a group effort, although nothing can be ruled out) from a rational perspective. That seldom ends satisfactorily... and never neatly, or quickly, or rationally, or replicably.
link to: 14:01 [GMT-8]
I've been very busy preparing for an event next Saturday, ranging from paperwork to other stuff to cabinetry (really). There have been several important legal developments regarding publishing, but what they mean individually — and together — is going to depend a great deal on the e-book antitrust trial against Apple coming up shortly. In particular, there's been a lot of stuff happening in Europe that is giong to have some significant effects on the US publishing industry.
And, naturally, there's a lot I'd like to say that I can't. For example, I can't really comment on the Night Shade situation; I extricated my clients from Night Shade a couple of years back, but some nonpublic information that has come to me in the current fiasco is making me gnash my teeth. (That's a lot of teeth for a shark.) I suppose you can read between the lines on this one, but ultimately there's no way for the authors to win (or even come close to breaking even) under these circumstances.
That's all for the moment — perhaps more later in the week.
link to: 14:11 [GMT-8]
Just a short post-trip platter of baby seal link sausages here... unfortunately, LA's baby seals have upset my digestive tract a bit, so I'm back on a Bay Area fish diet for a few days.
Perhaps the most important reason for authors to welcome Kirtsaeng is a practical one relating to accounting. Turow's article presumes that publishers' accounting is accurate, honest, and timely regarding those "lower priced" foreign editions and how they relate to authors income. Leave aside for the moment that those "lower priced" foreign editions are either or both of (a) price-controlled with limited print runs, so there simply isn't a flood available for the US market (more like a trickle) and (b) specialty works way the hell outside the experience and expertise of the Authors' Guild (such as the college-level textbooks at issue in Kirtsaeng itself... whose author-publisher contracts do not resemble those for trade books at all, starting with their work-for-hire nature and going downhill from there). I don't know of an author who has published more than three books who has not personally questioned the accuracy of publisher accounting at one point or another, even if it never rose to a formal complaint. My ultimate literary ambition remains getting a royalty statement from a Big Five publisher onto the final Hugo or Nebula ballot for Best Science Fiction or Fantasy Short Story (under 7,500 words). And it's even worse with subsidiary rights than it is for straight domestic trade publication. Instead, Kirtsaeng represents an opportunity to go to unified accounting... where it's a lot harder to hide things, and it's a lot harder to claim deductions for nonexistent VAT payments that were instead made by the author's overseas agent, and so on.
Proclaiming and acting as if one's own experiences (for example, never having been in the slush pile) are universal does little for one's credibility. I expect better from a former Assistant US Attorney and current specialist (when practicing law) in white-collar crime. Hell, I expect better from any lawyer under any circumstances. It appears that I'm expecting too much.
link to: 13:02 [GMT-8]
Before heading off to LaLaLand, so that the baby seal population around here can recover a bit:
The fundamental flaw in Gates's piece is that he is focused on the quality of the measurements as inherently reflecting the quality of the measurers, without engaging with the abysmally low standards in place for the measurers themselves. If we don't expect much achievement of teachers, we're not going to get much achievement from their students; if we want more scholars and great thinkers coming out of our schools, we need to put a few more into them, if only as role models (and so that freshman English students don't have a better grasp of the subjunctive than do their Ed.D.-bearing teachers, to mention one problem I've encountered... more than once).
The key point is this: Unlike what the General Counsel of a Big Five publisher claimed in a letter yesterday, the Harlequin decision is not precedent that demonstrates that what any publishing company does in passing rights around to its different divisions is permissible. It is not even a precedent regarding the particular corporate games at that conglomerate... because that conglomerate does not have a Swiss-control pass-through, and would be prevented from obtaining one by the particular corporate organization of its ultimate parent. And the contract terms in question, but that's for another time.
Repeat after me: The work is not the author, else Ezra Pound disappears from the canon... and so, for that matter, might Shakespeare. The battle should not be over whether LMB or RAH is more "deserving" of having the most rocketships on their respective mantels (aside: to my taste, and in most instances objectively, the majority of the winning works from both of those authors did not/do not "deserve" the corresponding Hugos), but over the most-deserving work. Fandom, too damned often, fails to look one bloody millimeter beyond "traditional"/"fen-friendly" sources — not one of those works was even nominated, and none of them was exactly obscurely published... yet all are objectively and substantially superior to the works that did win for the respective eligibility periods.
link to: 08:49 [GMT-8]
Not just California; if you're a media owner, you probably think this platter of internet link sausages is about you. You might be right.
I'm more interested in a side issue, and it's one that is not foreclosed by existing law. US copyright law is unusually specific — as a result of a two-decade-old Supreme Court decision — in restricting copyright protection to original expression. Consider, for the moment, a national declaration that a retelling of that nation's own folklore does not qualify as original expression, and therefore falls outside of both national copyright law and the Berne Convention. (I'm afraid that this is a defensible position, due to the poor writing and arrogance behind the Convention itself; it's not the best interpretation, but neither is it the worst.) Let's now hypothesize, in a marginal Berne nation like, say, Indonesia, that a major blockbuster film is treated the same way as Novartis's drug, on the basis that the blockbuster is merely a retelling of an Indonesian folktale...
That's all for now — back to the baby-seal mines for this shark...
link to: 14:37 [GMT-8]
I'm irritated because I came to the Bay Area, in part, to get away from xtian control over businesses, only to find that "Good" Friday through Easter is more restrictive here than in East Central Redneckistan — even the bloody mall was closed today. I therefore propose the following festive meal:
Six hard-boiled eggs, chilled and peeled (ensure that you wash away the colored shell bits)
1 tsp good prepared mustard (stone-ground, Dijon, or horseradish-laced)
1 Tbs unflavored Greek yogurt
1/4 tsp or to taste ground Aleppo pepper
1/8 tsp demerara or turbinado sugar
1 clove garlic, minced
1/2 tsp minced chives
salt and pepper to taste
Carefully halve the eggs lengthwise and scoop the yolks into a small bowl. Mash the yolks with a fork, then add the remaining ingredients and mix thoroughly to a smooth paste, then divide and mound in the egg whites. Divide two per serving.
|Spwing Bwoilled Wabbit|
1 rabbit, cleaned and cut into serving pieces
2 cloves garlic, minced
1/2 medium onion, minced
1 small kiwi, peeled and chopped
1/2 cup good-quality soy sauce
2 Tbs dry sherry (not "cooking sherry")
1/2 Tbs sesame oil
1/2 Tbs freshly ground pepper
1 star anise
Rinse the rabbit and set in a glass or ceramic bowl or dish. Mix the remaining ingredients and pour over the rabbit; allow to marinate at room temperature for two hours, or in the refrigerator overnight. Preheat a broiler, shake the excess marinade off the rabbit, and broil, turning and basting once.
Serve with steamed rice and either coleslaw or shredded seaweed kimche. And don't tell the kids
whowhat they're eating...
Ritual disclaimer: This blog contains legal commentary, but it is only general commentary. It does not constitute legal advice for your situation. It does not create an attorney-client relationship or any other expectation of confidentiality, nor is it an offer of representation.
All material © 200313 except where otherwise indicated. All rights reserved. This blawg does not use the Creative Commons License, although I'm usually pretty good-natured about permissions for attributed reuse.
I approve of no advertising appearing on or through syndication for anything other than the syndication itself; any such advertising violates the limited reuse license implied by voluntarily including syndication code on this blawg, and I do not approve aggregators and syndicators whose page design reflects only an intent to use the reference(s) to this blawg without actually providing the content from this blawg.
Internet link sausages, as frequently appear here, are gathered from uninspected meaty internet products and byproducts via processes you really, really don't want to observe; spiced with my own secret, snarky, sarcastic blend; quite possibly extended with sawdust or other indigestibles; and stuffed into your monitor (instead of either real or artificial casings). They're sort of like "link salad" or "pot pourri" or "miscellaneous musings" (or, for that matter, "making law"), but far more disturbing.
I am not responsible for any changes to your lipid counts or blood pressure from consuming these sausages... nor for your monitor if you insist on covering them with mash or sauce.
Now live at the new site. I have arranged some of
infamous threads that have appeared here
by unravelling them from the blawg tapestry (and hopefully eliminating some
of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.
Links of Interest
Links open in a new window.
Other Blawgs, Blogs, and Journals
These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.
A blawg is sort of like a blog on legal issues, but usually has a lot more links to outside resources (other than other blogs) than does a typical blog. Scrivener's Error is a blawg, not just a blog. You can find other blawgs at < ? law blogs # >.