The law is self-policing. Riiiiiiight. The really sad thing is that one of the most recent efforts by outsiders to "police" the judiciary is worse than the conduct it was attacking.

Last week, I remarked in passing on problems in the US Court of Appeals for the Sixth Circuit. Today, the court issued an opinion on the controversy in question. In some really amazing spin doctoring, Judicial Watch—a purported public-interest group that purports to be a "watchdog" for the judiciary—continued its hysterical shrieking in a way that, unfortunately, gives away its complete lack of objectivity. The following phrase just leaped out at me:

In the death penalty case (In re Byrd Jr., [sic] 269 F.3d 578 (6th Cir. 2002)), Chief Judge Martin was found to have violated the rules when he issued a ruling without consulting his fellow judges and when he withheld an important pleading from them. The effect of the rules violations was to further delay the execution of a convicted murderer.

(Emphasis added.) Without defending Judge Martin's conduct, I think this little passage demonstrates Judicial Watch's prejudices. Based not just on this instance, but on other involvement by Judicial Watch, I somehow doubt that a judge whose conduct unduly hastened an execution would get the same treatment. I say that living in a state that has set more convicted murderers free as substantively innocent than it has executed since 1991.

Ironically, this kind of nonsense actually undermines efforts to force greater judicial accountability. If the loudest sniping at the judiciary comes from one clearly defined political segment and targets its "natural enemy" only, it will drown out other accusations and undermine their credibility. People will assume that the attack on the judge(s) is politically motivated, not based on objective serious misconduct.

Of course, this also fits into the copyright-term debate. But let's not go there this afternoon.

Continuing from the wee hours of this morning:

Myth 5: Since Publisher X isn't asking for a lot of money up front, I am doing self-publishing. Deep Throat was right: follow the money. The key isn't whether the author must write a large check detailed for printing costs to the publisher/printer before delivery of any of the goods; the key is whether the author is in a capital inflow or capital inflow position at the moment the books come off the press, and who owns those books. A decision matrix would look like this:

Ownership of books as they come off the press:	Author owns	Publisher owns
Guaranteed capital flow on publishing date is away from author	Self publishing	Vanity publishing
… is toward the author	Gift	Commercial publishing

The key issue here is not the author's hopes and dreams for bestsellerdom, but the cold hard figures that go into account books on the date of publication. Leaving aside for the moment the author's contribution of intellectual property—which, in the end, is the whole point of the exercise of publishing, but not really relevant at the moment—if the author has to pay for marketing; for cover design; for a specified number of copies; or for whatever, the net capital flow is away from the author. Similarly, if the author must provide any value other than the intellectual property represented by the manuscript, such as a list of 300 persons who might be willing to buy the book, the net capital flow is away from the author.

Given the rarity of true gifts in the business world, that lower-left box is not something to pay attention to right now. But that top line is, regardless of the ignorant propaganda coming from what I believe is one specific source that was swallowed whole by PC Magazine ("Self-publishing has gained respectability in the past few years (we don't say vanity publishing any more)…" (emphasis added)), the Washington Post (sorry, the article is about to move into the paid archives), the Chicago Tribune (ditto), and the Boston Globe. Those four publications bear a considerable portion of shame for being conned when they should have known better, or at least done some fact-checking. No, not just shame; moral responsibility for people who will be victimized on the basis of the inaccurate information now clothed in their credibility.

Now The Observer has gotten into the whole "become successful through self-publishing" urban legend business. Time for some debunking.

Myth 1: Since prominent authors including Mark Twain and Virginia Woolf engaged in self-publishing, self-publishing is a valid and reasonable means to develop a publishing career. This kind of logic is just as valid as noting that Isaiah Thomas came to organized basketball through Chicago street ball, then asserting that anyone who wants to become a professional basketball player needs to move to Chicago and start playing street ball. A large number of authors assertedly used self-publishing at some point or another. Careful examination of that list, however, shows that almost invariably their circumstances are not comparable to those of an author seeking to break into publishing today. For example, one of the reasons that Virgina Woolf "self-published" was that her work bordered on the then-current definition of obscenity in England, which acted as a significant barrier to publication. If American Psycho can find a publisher today—and by no means do I compare Ellis's drivel to Woolf's prose—that particular barrier must have fallen. Similarly, most of the so-called "self-publishing success stories" come from one of three circumstances that the starry-eyed unpublished author probably does not fit.

   First, many of the commonly cited success stories precede the development of the modern publishing system in following World War II, or at least the mid-1920s. Woolf's self-publishing did; so did Twain's; so did seven others on the "common list" of thirty or so.

   Second, most of the other commonly cited success stories are in specialty areas of publishing that are neither relevant to the "average" unpublished manuscript nor comparable to less-specialized publishing mechanics. This includes course- and seminar-adjunct materials, such as In Search of Excellence; "inspirational" works, especially but not exclusively Christian-based and found primarily in Christian bookstores; and "fad" books, including the notorious guide to Beanie Babies and cookbooks.

   Third, the commonly cited success stories are almost all the work of authors with extensive writing experience and publishing credentials that predate successful self-publication, or are compilations of materials drawn from such sources. Chicken Soup for the ____ Soul is an excellent example of the latter, while Twain and Peters are excellent examples of the former.

   The correct inquiry is this one: If the book that an unpublished author wants to self-publish is one that, but for lack of a publishing contract, one might find in a general bookstore, is self-publishing that book statistically more likely to create a publishing career for the author than is writing another book? Although there is no hard data available, the anecdotal data indicates that it is not, and in fact is less so.

Myth 2: Proper marketing alone is enough to create a self-publishing success. If this was correct, it would apply equally to commercial publishing. The hard data in my possession indicates a correlation coefficient of less than 0.20 between marketing expenditures and sales decile in the twelve months following publication. Since most successful self-published books are specialty works, comparable data is difficult to obtain. The dearth of successful self-published authors who later reject offers of commercial publishing contracts is instructive.

Myth 3: Print-on-demand (POD) is a new publishing model that breaks the barriers established by the commercial publishing industry. <SARCASM> Yeah, and the Saturday Night Special broke the barriers established by the handgun manufacturing industry. </SARCASM> POD is a printing technology, not a business model. No matter how the books are printed, one must still get them into the hands of potential buyers. That means one of two things: getting them into stores, meaning that one must use the existing distribution system (fully returnable books with long discounts), or direct sales, meaning who knows what. POD can be a useful printing choice for books that the author knows will not have a large audience, such as family histories. With rare exceptions, however, making money had better not be the primary objective.

   POD can certainly adjust price points, and can make it more possible for authors with little upfront cash to begin self-publishing. One can hardly complain excessively about the quality of POD books compared to the poor quality of too many commercially published books; however, POD books can be spotted easily by anyone familiar with printing technology or even just an observant reader. At least for the moment, POD has a questionable reputation. That reputation does not matter for low-print-run specialty books; but, since doing that print run is not for economic reasons, the attack on commercial publishing implied by the most strident advocates of POD is essentially meaningless.

Myth 4: My book is too dangerous for commercial publishing, so self-publishing is the only alternative. Except for books advocating illegal activity (as Paladin Press found out to its chagrin), this really does not hold up much anymore. Further, this statement is usually made by people who either have never submitted their books to commercial publishers or who have only ever written one book, and cannot stand criticism of their only child. Although a distressingly high proportion of the books published are garbage or worse, that proportion pales next to the slush pile. I have been a slush reader in several areas of publishing; better than 90% of the unsolicited submissions to a commercial publisher can be rejected as inappropriate or worse without reading past the first page, and at least 75% of the remainder rightly will not make it past the first three chapters. Too often, "unpublishable crap" gets translated into "too dangerous" in the mind of the inexperienced author. There very well may be a handful of counterexamples out there; statistically, they prove nothing.

On the theory that those who do not know history are truly doomed to repeat it, and that those who delude themselves about history won't be even that successful, I took a spin around a few of the major sources of book reviews lately. Was I ever sorry I did. I had hoped to see some of what books on history (and related serious nonfictional themse) are broadly available to a broad audience, but instead was treated to the usual nonsense that, with very few exceptions, allows virtually no dissent from previously established narrative forms and viewpoints.

   This is not really the fault of the book reviewers, or the book review publications. The Washington Post's Sunday Book World supplement—which in many sense has overtaken the Sunday New York Times Book Review in quality and breadth of coverage, if not in reputation—made a valiant effort this week to cover books on history. Well-considered reviews of Eric Hobsbawm's memoir of a leftist historian's experience, Donald Kelley's dense graduate-level disposition on the history of historiography, and the astoundingly ignorant Ann Coulter's treatment of American "liberals" as wearers of scarlet letters still fail to do two things that every book review should do.

   The first of these failures is most apparent in the last of the reviews. Given that Sturgeon was an optimist—more than 90% of everything is crap—a book review needs to tell the reader why he or she should care, particularly when the review is a negative one or of an unfamiliar area. It is easily understandable why Coulter's book, and perhaps to an even greater extent Bruce's book, are objectively "bad"; if nothing else, they are intellectually dishonest. The review makes this much clear, even if it never uses that term. The shortcoming of the review is in its failure to place its subjects in any context other than a fluffy comparison to a book from the "opposite" political wing, in a manner in which one cannot readily determine whether the reviewer even approves of that other book. This is not something that can be left to "showing," as the whole point of reviewing books should be to give readers guidance on how to spend their limited time and money, presumably from someone whose knowledge of the subject matter is greater than that of the average bear.

   The second failure is perhaps more subtle, and in the long run somewhat more dangerous. It is not really the reviewers' fault, though; it is the fault of the editors of the book review. Both Hobsbawm's and Kelley's books were reviewed by people clearly predisposed to like the books on the basis of more than passing familiarity with their works, their authors, or both. In serious nonfiction, it is becoming increasingly difficult to get more than three or four degress of separation away from any moderately prominent author when assigning reviews. The difficulty is that the editor did not insist upon disclosure of the relationship, or at least did not print it. In these particular instances, I do not believe that it harmed the reviews. Other times, such as the notorious incident in which another publication allowed a prominent romance novelist to review (or, rather, trash) romance novels penned by one of her competitors under several different names without disclosing that the two were presently involved in a lawsuit alleging plagiarism, it does.

   Together, these point out a major problem with book reviewing today. Unless one really can tell a book by its cover, even the most uncritical (and therefore least helpful) reviewer is going to come across a significant proportion of books that he or she cannot recommend positively. This issue of Book World is unusual in that it contains a significantly negative review. The "good news only here" source of book reviews is not worth much. If there is one thing that publishing does not need any more of, it is sycophancy.

I just took a very, very discouraging trip around various news sources today. Why I am discouraged, I do not know; I expected this.

   Is it just my imagination, or did Monty Python's Life of Brian accurately depict the situation of the pathetic left in this country? The right (Romans) is pretty unified, and although it certainly has its internal battles, those battles tend to be pretty much of personal aggrandizement. The left, however, forgets that its common enemy is the Romans, not the Judean People's Front. Or was that People's Front of Judea? In any event, the internecine squabbels on this side of the aisle both prevent disputation of ideas, instead of organizations, and force opinions toward the center. If this also sounds a great deal like the Spanish Civil War, and the complete inability of the socialists and left to unify against the fascists, I am afraid that is all too accurate.

   The reason that windbags like, say, Rush Limbaugh can get away with the illogic and sloppy research that is their trademark is that there is nobody of comparable views attacking them; the only attacks come from this side, which in turn generates counterattacks by all of Rush's (or whoever's) fellow travellers. Sadly, much the same can be said for the arts in general; artists and distributors are so busy attacking each other that nobody attacks artistic illiteracy or cooptation by commodities on the one hand and pretentious pseudoart on the other. Robert Altman was right.

A Single Parent's Lament

Teenagers. Can't live with 'em. Can't sell 'em cheap, 'cuz there ain't no takers.

Real authors are probably going to laugh at this—at least a little bit. A new edition of the excessively venerated Chicago Manual of Style is going to be out shortly, and a preliminary look indicates that it is even less satisfactory for lawyers than its predecessor. What this says about the relationship between "lawyers" and "writers" is not very complimentary, but probably all too accurate.

The real problem with CMS is that it originates at the University of Chicago. The University of Chicago, in a display of unbounded arrogance all too similar to Apple's decision to make the format of 3½" floppy disks in early versions of the Macintosh both physically and virtually incompatible with existing format standards, absolutely refuses to have anything to do with the Blue Book. Instead, the University of Chicago published its own Maroon Book—which, so far as I have been able to determine, has been adopted by nobody else. Although I do not defend the Blue Book as necessarily right in all (or even many) particulars, it is nonetheless the standard. I could do just as well with getting rid of the stupid volume-title-page-incomprehensible abbreviations format that the Blue Book uses for citations, and the typographical conventions that make a law review article appear almost as a book would in the rest of publishing. However, I cannot accept the particular alternatives offered by the Maroon Book and that were adopted in the 14th Edition of the CMS, such as not requiring an unambiguous designation of what court issued a decision or a citation of the codified (and thus official) form of a legislative act. The Blue Book's system is clunky and illogical; the Maroon Book/CMS system leaves out critical information.

At least CMS will begin paying some attention to electronic citation, as The Chronicle of Higher Education remarks. On the other hand, the blanket condemnation of footnotes is ridiculous, IMNSHO. I've done quite a bit of editing of academic texts. In those fields in which citation is important—such as, for example, legal writing, either academically or in practice—citation-only footnoting is much less intrusive than a string citation to four or five cases or other sources (particularly if it includes parallel citations) in the middle of a sentence, or even in the middle of a paragraph. It is all too easy to lose the train of thought in the middle of that string citation. Compare these two versions of the same paragraph:

In order to determine whether the Iowa guest statute should apply to this case, we must first examine its purposes as articulated by the Iowa courts…. These purposes are: "to cut down litigation arising from the commendable unselfish practice of sharing with others transportation in one's vehicle and protect the Good Samaritan from claims based on negligence by those invited to ride as a courtesy," Rainsbarger v. Shepherd, 254 Iowa 486, 492, 118 N.W.2d 41, 41, 1 A.L.R.3d 1074 (1962); to prevent ingratitude by guests, Knutson v. Lurie, 217 Iowa 192, 195, 251 N.W. 147, 149 (1933); to prevent suits by hitchhikers, id.; [and] "to prevent collusion suits by friends and relatives resulting in excessively high insurance rates," Hardwick v. Bublitz, 253 Iowa 49, 54, 111 N.W.2d 309, 312 (1961).

---

In order to determine whether the Iowa guest statute should apply to this case, we must first examine its purposes as articulated by the Iowa courts…. These purposes are: "to cut down litigation arising from the commendable unselfish practice of sharing with others transportation in one's vehicle and protect the Good Samaritan from claims based on negligence by those invited to ride as a courtesy,"¹ to prevent ingratitude by guests and to prevent suits by hitchhikers,² [and] "to prevent collusion suits by friends and relatives resulting in excessively high insurance rates."³

1. Rainsbarger v. Shepherd, 254 Iowa 486, 492, 118 N.W.2d 41, 41, 1 A.L.R.3d 1074 (1962).
2. Knutson v. Lurie, 217 Iowa 192, 195, 251 N.W. 147, 149 (1933).
3. Hardwick v. Bublitz, 253 Iowa 49, 54, 111 N.W.2d 309, 312 (1961)

Pfau v. Trent Aluminum Co., 55 N.J. 511, 263 A.2d 129 (1970). Leaving aside the inept writing, the second example is far clearer, both as to what it means and as to the sources relied upon for that meaning. The CMS invocation against footnotes, however, forces the first version (which is the version taken from the actual decision).

As authors, you should now begin to understand why lawyers seem so anal retentive about their (almost always bad) writing. Just wait until we try to tell you exactly how many spaces belong after a period!

I am not entirely certain what the various parties in the active controversies over appointment of certain candidates for the various United States Courts of Appeals expect to gain. Although I am pretty far left, I do not believe that the judiciary needs to be moved in any particular direction. Those who do misunderstand the nature of the common law.

   In the strictest sense, judges do make law. Translating poorly written or ambiguous statutes and constitutional clauses into the real world is, in any intellectually honest world, "making law." Frankly, the state of the law benefits from sharp confrontation between appellate judges. Say what you will about the reversal rate of the Ninth Circuit: Supreme Court opinions in cases that came from the Ninth Circuit are generally better written and clearer in their holdings than those coming from less diverse circuits such as the Fourth and Fifth. Leaving aside whether I think, in my arrogance (nothing not-so-humble about it), the Supreme Court gets things "right" when it reverses more "liberal" opinions coming out of the Ninth Circuit, the clarity of its opinions—even when it is affirming the Ninth—benefits from the controversy and give-and-take on that Court of Appeals.

   What distinguishes the Ninth Circuit from other relatively diverse circuits, such as the Sixth, is that personal animosity among the judges in that least-collegial (if only due to sheer numbers) of circuits is rather muted, and seldom reaches the public eye. Judges Reinhardt and Kosinski could hardly be farther apart politically, and each feels free to criticize the other's opinions; but there has been no apparent nonsense such as that in the Sixth Circuit, which at the moment is badly broken due to internal warfare among the judges stemming from the handling of the Gratz and Grutter cases (the two University of Michigan affirmative action cases).

   With that in mind, what to do about the actual nominations? As a litigator, and particularly one who spends a lot of time dealing directly or indirectly with appellate issues, I would much rather have a smart, intellectually honest judge whose politics do not match mine very well than I would a judge whose mind is politically closed—even if her politics and mine match. The kind of work I do requires a much longer view than that of many litigators. I don't often handle simple commercial matters, or simple application-of-bad-law-to-bad-facts matters related to ERISA. Thus, I am concerned not just with winning in the trial court, but in getting either a defensible opinion if I won or an attackable opinion if I did not. I then want a clear opinion from the appellate court, and preferably a well-reasoned one. Ironically, it is a lot easier to overturn a well-reasoned opinion through the legislative process than it is a poorly reasoned one—at least in my experience, which while not vast is considerable.

   Thus, even though I do not agree with Mr. Estrada's particular positions, I have no problem with allowing him to be confirmed as a federal judge. However, because Mr. Pryor's past raises grave doubt as to his ability to clearly express opinions, to be intellectually honest on the bench, and to work with colleagues with whom he disagrees, I would not at this time vote to confirm him, or even to move his nomination to the Senate floor. That the latter has happened is an excellent demonstration that I am not a Senator.

One of my cases is discussed today on the front page of the Wall Street Journal (subscription required).

Jumping back, one last time, to the copyright-term discussion—

I'm afraid that some others who have commented in different places have completely missed the point of the whole discussion. One of the critical mistakes that many people who wish to debate copyright make is the conflation of idea protection with expression protection. Copyright is about protecting expression, contrary to the underlying assumptions made by, for example, Mr. Vermillion. Throughout his response, which makes some interesting abstract arguments, he continues to assert that copyright protection and idea protection are somehow coterminous. (I will ignore his comments on economics, as they proceed from an incorrect reading of what was actually at issue.)

This actually points out a major area of abuse of copyrights that, from what I have seen, seriously distorts the entire debate. In theory, anyway, the debate should have been settled by Feist: original expression, not facts or ideas, is protected by copyright as a constitutional matter. This is why it is wrong, for example, to claim copyright in a human genome sequence; there is no original expression in it, only undirected operation of natural forces. The whole issue of "database protection" is all too frequently thrown into the same debate as "copyright protection." They are neither congruent nor directly related. The facts in a database are not protectable under copyright law. However, the specific expression of those facts in a book that draws upon that database (whether authorized to do so by some "license agreement" or not) is so protectable, so long as that expression is more than a mere mechanical recitation of the facts.

Admittedly, misuse of copyright law in protection of factual compilations is a significant problem for academics (among others), and no doubt colors perceptions. West v. Mead, which allowed West Publications to restrict access to case law on the theory that its pagination created a copyright interest, is an excellent example. When such nonsense is attempted in more inherently expressive forms, such as fiction, successful assertion of a copyright cause of action is quite rare. Consider, for example, the controversy over The Wind Done Gone (which, because it was tried in the Eleventh Circuit—a circuit that does little copyright work—raised a significant risk of an inconsistent result). Whether one thinks the decision was right or wrong, the courts made clear that they believed the attempt to prevent publication of a purported parody of Gone With the Wind—which certainly deserves parody—was wrongful and well outside the scope of the Copyright Act. That the Second and Ninth Circuits cannot agree on what aspects of a "character" are protectable under the Copyright Act points to a problem in administration, not necessarily with the scope of the Act.

In any event, fiction is different from factual compilations and theoretical interpretations of facts. Although it is not always true for particularly finely argued theories, and may be quite difficult to do, recasting a theory as a different expression does not ordinarily change the substance of the theory. However, recasting a character description, or a character's speeches, or any other fictional element does change the substance of the work of fiction. <SARCASM> Perhaps information wants to be free. Even if it does, novelists do not express information, and want to be paid. </SARCASM>

One of the major problems in litigation today concerns the United States Court of Appeals for the Ninth Circuit. Many people (lawyers, academics, politicians—ok, they're not strictly people, citizens) think that the Circuit is too large and has too many judges. Its size also has an unfortunate effect on copyright law, too. The Ninth Circuit covers Alaska, Hawaii, Washington, Oregon, Idaho, Montana, Nevada, California, Arizona, and all US territories and protectorates in the Pacific (like Guam). That is a lot of territory. That is a lot of people. Therefore, that is a lot of lawsuits.

   There have been a lot of proposals to split the Ninth Circuit, often driven by ideology more than by common sense. There is a sense that the Ninth Circuit is too "liberal" for many conservatives, and particularly for fundamentalist Christians. (That these groups will not accept the possibility that, say, the Fourth Circuit is too "conservative" for people like me bears some careful consideration, but for another time.) For example, some have proposed splitting Nevada and the five northern states off, leaving California, Arizona, and Hawaii as the Ninth Circuit and the remainder in the new Twelfth Circuit. However, California by itself is so big that this would not provide much relief. Splitting California so that part falls in one circuit and part in another is the only purely geographical method that could equalize workloads, but that would make California the only state sitting in multiple appellate circuits.

   Actually, that last concern is not strictly true, and points a way toward the beginnings of a solution. Every state is part of two federal Circuit Courts of Appeals: the territorial circuit and the Federal Circuit. The crucial distinction is that the Federal Circuit is not an "option"; instead, all appeals concerning certain subject matters go to the Federal Circuit, and it hears no other kinds of cases. Many of these appeals arise in DC, such as appeals arising from certain federal personnel actions. More to the point here, all appeals that require interpretation of the Patent Act or a patent go to the Federal Circuit, whether they were tried in Chicago, Los Angeles, Boston, or wherever.

   Since patents and copyrights have the same Constitutional source, this leads to a possibility that I have not seen considered elsewhere: Send copyright matters to the Federal Circuit, too. Copyright suits are exclusively under federal jurisdiction (28 U.S.C. § 1338), as are patent suits (ditto). Harmonization of copyright law would be a very good thing. At present, there are basically three tiers of appellate circuits in copyright law, based on the frequency of reported copyright decisions in those circuits. The top tier is the Second and Ninth Circuits. This is not surprising; the Second Circuit includes the center of the print publishing industry (New York), and the Ninth Circuit includes the center of film and television (Los Angeles). The second tier is the Sixth and Seventh Circuits. Again, this is not surprising; the music publishing center in Nashville (Sixth Circuit) and financial and information publishing activity in Chicago (Seventh Circuit) explains this well. The third tier is everyone else. (By "tier" I mean only frequency, not "rightness" or "quality" of decisions.)

   Unfortunately, there are some rather distressing inconsistencies among the circuits that are unlikely to be resolved by the Supreme Court. Most particularly, the Second and Ninth Circuits have greatly disparate law concerning copyright protection of fictional characters and settings. If a single circuit was responsible for all federal lawsuits arising under Article I, § 8, cl. 8 (the Copyright and Patent Clause), that would at least make the law consistent. The success of the Federal Circuit in resolving many disturbing contradictions in patent law bodes well for such a result. One could even throw trademark suits in, too, but that may be too much, as trademark is also a state-law theory that can be heard in state courts.

   Although this by itself would not solve the workload problems in the Ninth Circuit, it would take some of the thorniest problems away and begin to make a dent in the process that just might allow a geographical split to work. Of course, other types of lawsuits could also be assigned to the Federal Circuit; they should, however, probably be limited to lawsuits arising from the narrower of Congress's enumerated powers in Article I, § 8. In any event, this may provide some food for thought.

As an attorney, one unwritten professional responsibility that I have is to attempt to educate both attorneys who do not practice in my area of law and nonattorneys about the general structure and requirements relevant to that area of law. Contrary to the nonsensical propositions put forth by the various bar associations, lawyers are specialists—and far more so than physicians, despite the absence of a specialty-board certification (aside from patent practice before the PTO). For example, when is the last time that you heard an individual physician proclaim that he/she is ENT certified, true, but only works on problems from the left side of the throat?

This specialization can lead to both advantages and disadvantages. The obvious ones are the advantage of deeper and more detailed knowledge of an area under discussion and inexperience in other areas of law. In turn, this leads to improper analogization—a logical flaw that is shared pretty equally among practicing lawyers, academics concerned with legal issues (who may or may not be lawyers), and nonlawyers with vested interests in issues. More on this anon.

The other unwritten professional responsibility that I referred to previously concerns the propriety of argumentation. Basically, attorneys in most states are required to advocate for their clients; in some states, they are required to do so "zealously." The difficulty arises in general discussions on law that are not directly related to representing any particular client. All too often, lawyers—particularly those of us who start with a more theoretical bent, and I am not excluding myself—try to turn this grey area into a black-and-white test. It is not, and cannot be.

The exchange between myself and Professor Solum illustrates some of these difficulties—rather poorly, as the argument has been neither vituperous nor highly technical, which I consider fortunate—and how they are barriers to both communication and to advancing the state of the law. In a way, I had a hidden agenda in engaging in this exchange: I wanted to expose two basic logical flaws that infect all legal analysis, whether by practicing attorneys or otherwise.

A. The common law is, by its very nature, inductive. That is, it draws from one, or at most a few, specific instances to create a proposition of purported general nature. This can be a perfect valid method of logic. Unfortunately, it also leads to sequences of reasoning like this one:

A1. African American schoolchildren in Topeka, Kansas were segregated
A2. The segregated schooling was inferior
A3. No counterexamples of truly equal or superior segregated schooling were presented
A4. Therefore, segregated schooling violates equal protection
A5. Therefore, consideration of race in allocating educational resources violates equal protection
A6. Therefore, affirmative action plans, because they consider race in allocating educational resources, violate equal protection

The logic problem here arises between steps A4 and A5, and again between steps A5 and A6. The hidden proposition is this one:

A4.1. All means of creating segregated schooling that we have now agreed is improper necessarily involve an improper consideration of race

This proposition may well be true; however, it is true as a value judgment, not as a logical consequence. Cf., e.g., W. Brian Arthur, "Inductive Reasoning and Bounded Rationality".

B. Because all law (except the illusive "natural law") has at least a considerable inductive component to it, it is particularly vulnerable to the fallacy of the false dilemma, which arises from assuming that a bipolar policy statement contains the exclusive definition of all possible alternatives. One common—but neither compelled nor universal—statement of the false dilemma in this particular context is something like this:

B1. Some, or even many, copyright holders/controllers use copyright to inhibit free expression and the production of new works in the arts
B2. These Abusers constantly press for the extension of both temporal and other limitations on their ability to control direct and derivative use of their works
B3. Therefore, the scope of temporal and other control of copyright holders/controllers must be radically reduced

The difficulty is the jump between steps B2 and B3. Again, it may be true as a value judgment—I deny it, but those are my values—but it is not compelled by logic. That jump fails to account for alternative means of negating the circumstances stated in step B1 by looking at the behavior of only the abusive parties. As an alternative, I proposed greatly limiting membership in the class of those who abuse copyrights, by (for example) reforming the definition of "work for hire" in a way that allows the actual creator(s) to terminate the transfer at a later date, without altering the other aspects of copyright. Whether or not this is the best possible solution, it demonstrates that there is an alternative to chopping copyright terms back to "five or ten years" (or whatever) for everyone. Since there is an unconsidered alternative to the exclusive-or reasoning presented, that reasoning is not compelled by logic. (That this conclusion itself depends upon an exclusive-or lemma—something is either logically compelled or it is not—has not escaped my notice.)

In summary, not all legal reasoning—and particularly not all legal reasoning on "intellectual property"—has compelling logical antecedants. For some propositions, there very well may be compelling policy antecedants. However, by definition policy antecedants do not have universal application, while logical antecedants do. Recognizing that difference is an important first step toward helping authors understand other aspects of intellectual property, particularly those related to "fair use" (or "fair dealing"), "plagiarism," "attribution," and many other fact-specific issues.

I'll be out of touch doing lawyerly things over the next couple of days. I promise that I will explain why writers should care about the theoretical, intensely academic kind of discussion I've been having with Professor Solum some time after I get back. It has to do with two professional responsibilities that most lawyers neglect.

Continuing the discussion with Professor Solum:

We have a fundamental disagreement on the nature of property. Professor Solum said (emphasis added) that

Intellectual property is different from tangible property in a crucially important respect (rivalrousness). And because of that difference, the economic case for perpetual property rights in tangible things does not extend to intellectual property. In that sense, intellectual property is "inferior," and, in that sense, this is a well-established and uncontroversial fact.

No, it is not a "well-established and uncontroversial fact." It is not a fact of any kind. It is an a priori assumption, just like every other categorical or definitional distinction in economics. For many purposes, it is a valuable one; not, to my mind, for this purpose. Professor Solum's argument, at the extreme, essentially raises rivalrousness to the level of the single most critical aspect of property. I do not believe that he truly intends it to reach that far, but that is a valid conclusion. Perhaps as a theoretical matter there are some, or even many, circumstances under which this is a valid and sound conclusion. It is not, however a fact; and it is certainly not incontrovertible, as recent work from the "behavioral" school of economic thought demonstrates.

My unprovable a priori position is that classical and neoclassical economics, because they are founded upon the assumption that all resources are economically scarce, often produce answers of limited value when the resources are nonscarce (either within a given market or in general). Whether intellectual property would qualify as a "scarce" resource is far from obvious; in the context that we are discussing it, I believe that it might. As the whole point of this discussion is to try to build communication as the first step in building a bridge, I also believe that concentrating excessively on "solving" this aspect of the problem will only prove a barrier to any other aspect. I suspect that we're going to have to agree to disagree, and see where we can go from there in recognition of the disagreement.

It seems to me that part of the disjuncture between Professor Solum's approach and the approach I've tried to outline arises from incompatible definitions of "economics" and incompatible models within "economics." I cannot state any other solution than noting that, within those models, we both appear to be "right." Which model one accepts within the broad scope of "economics" is essentially an unstated assumption. Over the years, I have gotten into and/or observed so many arguments that eventually founder on this barrier to communication that I have given up trying to convince anyone else that the models I credit are better than the ones he or she does. It is just as valid to open one's soft-boiled egg at the big end as at the little end.

I feel compelled to respond somewhat more strongly to two other points Professor Solum raised concerning the "rents" issue. First, I cannot find a principled distinction between "excludability" and "rivalrousness" that would apply to intellectual property, even should I accept that "rivalrousness" has a meaning independent of "excludability" (not all schools of economics do). If there is such a principled distinction, all it does is, as noted above, raise rivalrousness to the most significant aspect of property. In any event, there is an a market-based analog to "rivalrousness" in intellectual property exploitation that unfortunately comes from something usually labelled "exclusive": that an exclusive right is in many circumstances worth more in the market than is a nonexclusive right to the same intellectual property. This is most apparent in patents, but does occur in copyright. Consider, for example, the market difference between the fee offered for the "average" exclusive anthologization right to previously published short fiction and the fee offered for a nonexclusive anthologization right for that same work. Or, perhaps more directly, consider the difference between the fee offered for first publication rights to a work of short fiction and that offered for reprint rights.

Second, and less cordially, I reject the application of the tragedy of the commons to our disagreement. I have not argued in favor of perpetual copyright, which could make analysis of the tragedy of the commons relevant. Should Congress continue to extend the terms every time "Steamboat Willie" gets close to entering the public domain, that argument may gain more validity. I advocated that the "right" copyright term is one that is both substantially longer than the "five to ten years" Professor Solum proposed and somewhat shorter than the 120 years accorded works for hire or life plus seventy years accorded natural persons under the current statute. This objection is thus inapplicable.

Professor Solum's response on the motivational biases in the academic's treatment of intellectual property is both well-taken in one sense and tends to demonstrate my point in another. Admittedly, I did not provide specific documentation on how much academics make from their intellectual property. It is incredibly difficult to do so, because much of the data is (rightfully) confidential. However, there are some general circumstances and statistics that one can use to demonstrate at least that Joe Academic does not make his or her living directly from the income he receives from intellectual property. First, keep in mind that 99% of the academic works published (and perhaps more) as articles in journals and periodicals do not result in direct income of any kind. A chemist's article in JACS garners no fee for the right to publish it. It may help obtain tenure, or promotion, or an endowed chair, or better research grants; but those are indirect effects that come from the use by others of the property itself, not from the chemist's initial placement of the property for availability to others.

The situation is not all that much better for books. The median royalty advance for serious nonfiction among university presses appeared to be around $3,500 during calendar year 2001, the latest for which I have a broad enough base of figures from which a conclusion might be drawn. Approximately 20% of those works earn out the royalty advance within three years after publication. On that basis, I do not believe that Joe Academic can expect to earn his or her living solely and directly from his or her intellectual property, unless Joe Academic can churn out ten books a year for year after year—and promptly sell publication rights for all of them to willing publishers.

Or can he/she? Isn't name recognition a form of intellectual property? Yes. It is. It is the designation of origin of certain expressions—which is more like a trademark than a copyright, and bears no apparent relationship to the copyright term. Instead, this is a matter of droit morale (moral rights). Consider, for example, the hypothetical instance in which the copyright term expires one day after publication. Since others can copy the material immediately, one can no longer exploit the material itself directly to make a living, except insofar as one can control the means of making those copies. However, the knock-on effects of properly attributed authorship—tenure, promotion, grants, endowed chairs—will continue to function for academic authors regardless of the copyright term.

Professor Solum wonders:

Where, for example, did Lessig engage in "inordinate discount[ing]"? Who else has done this? My previous reply asked for the evidence for Petit's claim of bias, and such evidence has not yet been produced.

It is not fair to Professor Lessig to try to dissect his books in such a manner. I can only point out a trend and negative inference in the examples cited in his books and the last four or five of his articles that I have read: that virtually every negative example (most of which were well-taken) concerning misuse of or harm arising from the copyright term related to a copyright that was neither owned by nor being abused by the actual creator. This misuse of/harm caused by the copyrights by a class of copyright holders was then used to justify restrictions upon all copyright holders. In some instances, I agree with Professor Lessig's particular suggestions; in most, however, those suggestions would harm a class of copyright holders for whom I have seen little evidence indicating habitual or widespread abuse of those copyrights, and who depend directly upon the income from those copyrights to allow them to further the progress in the sciences and useful arts.

Professor Solum's objection that I have not dealt with my purported "reversal" of the bias effect does do one thing, I think. I infer that Professor Solum is conceding that the degree to which academics and nonacademics rely for their basic living upon income received directly from exploitation of intellectual property, and copyrights in particular, is different. I believe that this difference is, on average, significant enough that it introduces a bias into the system. I made an inferential argument concerning what that bias was based upon a relatively broad correlation between the class of origin of the most extreme anticopyright statements and the apparent (non)reliance of that class upon income received directly from copyrighted materials. That is all I was trying to imply. If Professor Solum concedes that there is a degree of difference but believes that the degree is not sufficiently distinct to create a distinction in kind, that is his right, as there is very little hard evidence.

Professor Solum has responded to my comments of 10 July criticizing some of the basis for his position. His responses indicate that we have both genuine disagreements and failures to communicate. Rather than nitpick excessively (which I would ordinarily be perfectly happy to do as either an academic or a practitioner), I'm going to try to rectify the most serious communication problems.

Professor Solum believes that "Petit is actually arguing that only those who have an economic stake in IP protection can see the consequences of weakening IP protection." I don't think that's what I was saying. What I was trying to say is that those who do not have a critical stake in IP protection tend to inordinately discount the personal stakes of those who do. Professor Solum's citation of Professor Lessig's books is not persuasive. Admittedly, Professor Lessig has made quite a bit of money from his books, and deserves to; there is much of value in them. However, the books are not how he makes his living; his role as a professor is how he makes his living. Further, the vast majority of professors who have written books—even oft-adopted textbooks—do not earn enough from that activity to say that writing books is how they "make their living." My point, which obviously was not clear enough, is that IP protection is the mechanism that has been chosen to ensure the basic economic support of artists (in the broad sense) and inventors, and that those who most frequently advocate against strong IP protection do so without sharing or understanding—or all too often acknowledging—that there are two sides to the issue, and that strong IP protection for individual creators has some substantially different economic interests and effects than does strong IP protection for corporate owners of IP.

Look, for example, at the prevalence of various common types of internet piracy and how the "justifications" for that piracy relate to the ownership of the property. Although the attention on Kelly v. Arriba Soft might increase and admittedly acts as a partial counterpoint, virtually all of the attention paid to "piracy" concerns material that is primarily or exclusively owned by parties other than the actual creator of the work. Film copyrights are owned by the producer, and often transferred to the distributor. Music performance copyrights are owned by the recording company (distinct from the songwriter's copyright). On the other hand, until the last four or five months there has been virtually no public acknowledgement of the problems with piracy of written material on the Internet—and I can download the complete works of Joanne Rowling from any of a dozen places in less time than I can download an MP3 of a single song off of "Weird Al" Yankovic's latest album. There are technological reasons for this, of course; I suggest that the economic interests also distort the discussion.

Professor Solum also states that "Petit believes the opposite. He argues that self-interest reduces bias and a lack of interest increases bias." I still don't see this in what I wrote. I intended to indicate that self-interest (or its absence) creates a kind of bias that can inhibit communication and understanding. One of the other comments Professor Solum made implicitly acknowledges this: he noted that some academics make substantial money from their IP, but still consider the term too long. (As an aside, I agreed then and agree now that the term is too long; I disagree that the particular alternative proposed—five or ten years—is any better.) This feeds back into the difference between someone who makes a profit and someone who makes a living from IP, which was my point.

As far as the whole argument over "rent-seeking" goes, I think we had a case of two ships passing in the night, which was at least half my fault for not being clear. Let me try again.

The only way in this context to equate "rent-seeking" with "bad" is to treat intellectual property as somehow inherently "inferior" in the right to seek rents to personal or real property. Professor Solum quite properly points out that the act of making a copy does not directly create exclusion. The difficulty here is that there are two types of property at issue every time a copy is made: the physical copy itself, and the content of the copy. Making a copy does not physically (in most cases; consider a sculpture made of rare or unique materials) inhibit the making of another physical copy, true enough. However, that copy in some sense alters the value of the intellectual property. In some contexts, the greater number of copies may increase the value of the property; a single copy of a particular musical performance, for example, has less value to the creator of the musical performance than do fifty copies that allow others to share in the performance and compensate the creator for it. However, this does not justify rent-seeking in physical property in the abstract while denigrating it in intellectual property in the abstract.

Professor Solum concludes that "Because very long terms and retroactive term extensions create wealth transfers but do not create a corresponding social benefit, they are 'rent seeking pure and simple.' Perpetual property rights in physical resources do have wealth effects, but they create enormous social benefits." Of course, the premise cuts both ways. If one accepts the constitutional premise that an economic interest in intellectual property will function to increase the amount and availability of intellectual property for other uses—for some people, this is a big "if"!—there is a "corresponding social benefit" to intellectual property terms. The question is one of balancing the terms with the costs and benefits. The argument that one extreme's on-balance harms necessarily means that the other extreme is the correct position is the problem with the entire copyright-term debate. The mainstream approach is to reduce the current excessive term of 120 years to a vastly shorter term, such as Professor Solum's proposal of five to ten years. (That this latter proposal may itself seek a rent is a complex, and far from intuitive, proposition that requires further study.)

The main point of my commentary is that the proponents of eviscerating intellectual property rights, whether by abolition of copyright or some other means, seldom consider the effects of those changes upon the individual creators of the property. The cause is twofold. I explicitly noted that the effects of those changes are on the whole outside the experiential framework of the IP critics and thus are far too easily discounted. I implied, and should have made clearer, that the identity of the holder of the IP rights is a major factor in this argument that does not and should not be allowed to overwhelm the consideration of the actual creator's rights. The well-taken objections to the abuses committed by Disney in defense of Mickey Mouse (when, correspondingly, Disney does not respect the IP rights of others, even when those rights—e.g., Peter Pan—have been unreasonably extended to truly seek a rent) at best imply that similar objections must be considered on the facts for abuses by individual creators in order to determine whether individual creators' rights need to be reined in for the same reasons and in the same fashion.

A much simpler and less-disruptive means of dealing with the entire issue would be reform of the various definitions of "author" under the Copyright Act. This would allow US law to maintain harmony of term with the international consensus without simultaneously ratifying the abuses perpetrated by many "authors" who did not actually create the work, but only invested in it. Although there are a lot of details, I believe that most or all of this nonsense would slowly slide off into the mist if (among other things) the work for hire doctrine were to be limited to employees only. There would still be abuses, true; and this would also require a corresponding change in the termination (revocation) rights under § 203, by shortening the horizon; but I suspect that economic forces would be more capable of dealing with those abuses.

Once in a while, the legal system does manage to keep a bad lawyer from ever becoming a member of the bar. Such is the case of Matthew Hale. Hale's sordid tale is instructive for nonlawyers who wonder why the legal system acts the way it does—not because it happened, but because it's so [unbelievably foul and offensive expletives deleted] rare.

In an opinion released today, the Seventh Circuit described Mr. Hale's situation like this:

Matthew Hale is a public advocate of white supremacy and the leader of an organization (formerly called the World Church of the Creator [note 1]) dedicated to racism and anti-Semitism. He comes before us today because he seeks to be admitted to practice law in the state of Illinois. The Illinois State Bar [sic] requires applicants not only to demonstrate proficiency in the law on a written bar examination, but also to pass a character and fitness exam. Hale succeeded in satisfying the first of these hurdles, but not the second. His defeat came at the hands of the Committee on Character and Fitness (Committee) appointed by the Illinois Supreme Court, which found him unfit to practice law.

---

1. In TE-TA-MA Truth Foundation-Family of URI, Inc. v. World Church of the Creator, 297 F.3d 662 (7th Cir. 2002), we ordered Hale to rename the organization, formerly known as the World Church of the Creator, for infringing on another group’s trademark. Hale refused to comply. Earlier this year, Hale was arrested for conspiring to kill the district court judge presiding in the trademark infringement case, and is currently being held without bond. Jodi Wilgoren, White Supremacist is Held in Ordering Judge’s Death, N.Y. Times, Jan. 9, 2003, at A1. In light of these events, it is difficult to imagine that the Committee would vote positively today in favor of Hale’s character and fitness, though that is not the strict issue before us today.

Hale v. Committee on Character and Fitness for the State of Illinois, et al., No. 02–1716 (7th Cir. Jul. 14, 2003), slip op. at 1–2.

The case being heard by the Seventh Circuit was decided on a technical, procedural ground. What is most worrisome is that Mr. Hale's circumstances are so rare. So far as I have been able to determine, the Attorney Registration and Disciplinary Commission had refused no other applicant on character-and-fitness grounds since the late 1970s who did not have either a felony conviction (or civil liability finding for fraud) or current issues with mental health (including substance abuse). One can only wonder if the legal profession might be viewed more as a profession, and if it might better fulfill its societal role, if the ARDC and its counterparts in other states had been somewhat less of a rubberstamp on character and fitness. I will not claim that the profession has only a few bad apples—it has a lot of them, perhaps as much as a third of the active bar being disbarrable on ethical grounds if enforcement were at all vigorous—but keeping those virtually certain to cause ethics problems out of the profession is a good start.

I say this not just because I vehemently disagree with Mr. Hale's views, but because his actions and contempt for judicial process that does not go in his favor are all too common, both within and without the bar. The legal system has done a really poor job over the years in "self-policing," yet will not allow outside influences to help it reform. I still believe, and still follow, the officer's code of conduct, and believe it to be the minimum that those of us entrusted with ensuring the equal enforcement of the law should be expected to uphold.

•  Thou shalt not lie, cheat, steal, or tolerate others who do.

•  Any situation that presents even an appearance of a conflict of interest or of ethics must be treated as an actual conflict until a knowledgeable third party determines after adequate inquiry that no actual conflict exists and the party or parties potentially effected by the potential conflict have been informed.

Yes, everyone is entitled to vigorous representation. Nobody is entitled to subvert the rule of law through representation by counsel that has only contempt for the rule of law.

In Illinois ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. ____ (2003) (PDF, 345kb), the Supreme Court held that:

[W]hen nondisclosure is accompanied by intentionally misleading statements designed to deceive the listener, the First Amendment leaves room for a fraud claim.

Slip. op. at 2. Telemarketing Associates (it is traditional to choose a fairly unique short title, and by definition a state Attorney General—Lisa Madigan—does not have a "unique" name for litigation!) arose from specific misrepresentations made by telemarketers soliciting charitable donations. The telemarketers told potential contributors that "a significant amount" (often citing a figure of over 80%) of the funds raised would go to certain programs to benefit Vietnam veterans. However, Telemarketing Associaties knew that in fact less than 15% of the funds would benefit the charities, the remainder being eaten up by Telemarketing Associates' profits and "administrative costs." The Supreme Court held that the complaint's allegations of this activity could proceed to trial, and that Telemarketing Associates' First Amendment right to solicit charitable contributions did not shield it from potential liability for fraud.

Although this does not seem at first blush to apply to book covers and other book marketing materials, the hierarchy of First Amendment law indicates that it does. Solicitations for charities have more First Amendment rights than do either simple advertising or even more-protected commercial speech. Cf. Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781 (1988) (soliciting charitable contributions is protected First Amendment speech, and a restriction on the amount or proportion of overhead expenses is an unlawful prior restraint) with Donaldson v. Read Magazine, Inc., 333 U. S. 178 (1948) (the power "to protect people against fraud" has "always been recognized in this country and is firmly established," and fraudulent speech is not inside the First Amendment). Intentional misstatements of fact intended to induce purchase of a product or service are false advertising and may constitute fraud.

In the all-too-real cases noted previously, the trumpeting of the 23% return on the cover was an intentional misstatement of fact, as acknowledged by the disclaimer inside the book in very small type. Stating the rate of return produced by an investment strategy on the cover of a book that describes that strategy is intended to induce a buyer to purchase the book. The only question remaining is whether the cover of the book somehow has even greater First Amendment protection than does the statement over the telephone of a solicitor of charitable contributions. Other cases concerning commercial speech indicate that the cover does not enjoy such protection, although none state so outright.

What does this mean to authors? First of all, don't blurb a book without reading it! To use a couple of examples from speculative fiction, Marion Zimmer Bradley was believed to have given blurbs to books under circumstances indicating that she had not read the books. A publisher that knows this—and publishers were certainly aware of her failing health—or even suspects this has no business putting a blurb on the cover implying or stating that the endorsement is on the basis of having read the book. This is perhaps different from the more-common problem of a Famous Author proclaiming that the book is the greatest piece of literature since sliced bread, when even cursory examination of Famous Author's books would lead one to question whether Famous Author could recognize a great piece of literature (or, all too often, sliced bread). But only perhaps—I can imagine (no, I could actually cite except for the confidentiality provisions in a settlement) circumstances under which that could be an unacceptably misleading statement.

Second, authors have a responsibility to at least inform publishers that proposed cover designs are misleadingly inaccurate. Admittedly, the S&Ms very well may tell the author to sod off on the dubious ground that the author doesn't know how to sell books. <SARCASM> Whether the S&Ms do any better is left as an exercise for the reader. </SARCASM> At least the author, though, has fulfilled his or her ethical and legal responsibility to provide the information (and keeping a copy of the communication will keep him or her out of court). Unfortunately, this probably does not extend to objecting to the latest Frank Frazetta/Rowena clone cover painting of chicks in steel brassieres in subartic climes, but it's a start.

Jumping back to yesterday's first entry, I'll try to pull y'all back from the cliff.

The answer has, at least up until this spring, depended on whether one is suing in California or in New York. The New York court determined that the publisher was not liable for deceptive advertising on the facts described previously, holding that the First Amendment shielded the publisher. A different plaintiff suing in California for the same book, though, won a finding that the publisher was liable for deceptive advertising. Thus, it is definitely in authors' interests to ensure that there are no outright lies on their book covers. Admittedly, this can be somewhat difficult, as the publisher almost always has both title and cover control. To my mind, this reinforces that the California court understood more about the realities of publishing than did the New York court.

The Supreme Court had the opportunity to make this crystal clear, but chose to punt Nike v. Kasky back to the trial court for factfinding. Indirectly, though, the Court at least called the New York court's reasoning into question with a case about fraud in telemarketing. Unwinding that will take a bit more time than I have at the moment. Thus, another goofy cliffhanger.

While you're chewing on the previous entry—if you're chewing on the previous entry—I need to clarify and partly correct something that Neil Gaiman said in his blog this morning:

[A] writer whose article had been reprinted without her permission or any payment wasn't entitled to any restitution under copyright because copyrighting a magazine or anthology essentially only copyrights those articles in that sequence, it doesn't copyright that specific article, feature or story. That you should have filed a separate copyright notice on. And if you don't have a copyright notice filed, you may have moral copyright on your side, but you can't sue for damages, you can't make someone stop.…

[….] So unless Stephen King and Michael Crichton and Elmore Leonard and I have filed separate copyright notices on our individual stories (we might have done) they are now effectively in the public domain.

(Thanks for the note, Neil; those of us here in flyover country need to stick together!)

I will now prove that I am a lawyer by quibbling. There is a difference between failing to properly register the copyright, which is the "Morris problem," and losing the copyright. My explanation yesterday probably was not clear enough. Failing to properly register the copyright only bars one from filing suit (at least until registration is made properly and the registration certificate is in hand). It does not result in loss of the copyright; it does not drop the work into the public domain. As noted, it is still possible to register the copyright late; that just limits the available remedies, but does not make a suit impossible.

Part of the cause of this common mistake about copyright is that, until the 1976 Act came into effect on 01 January 1978, registration was required to assert a copyright, even out of court, and failure to register could drop a work into the public domain. And prior to 31 March 1989, failure to have the work properly marked ("© 1979 Arthur Author. All rights reserved.") could do the same. The point of Morris and its unfortunately growing progeny is that a single work, because it may be simultaneously part of multiple theories of infringement, must have a registration certificate covering the individual theory that one wishes to assert. For authors, this will most often involve the intersection between a periodical publisher's compilation copyright—protection for the selection, arrangement, and presentation of the periodical issue as a whole—and a freelance author's copyright in the specific work at issue. That is, in fact, exactly what was at issue in Morris.

One "copyrights" a work by setting it into a permanent form. This costs nothing. (And this should, as a rule, not be proclaimed on a work one is submitting for publication. If the publisher is honest, he or she already knows it; if not, he or she won't be deterred by a copyright notice.) Registration is a second step, one required to get into court. At $30 a pop, individual registration of magazine articles and short fiction will not be affordable. Fortunately, the Copyright Office has allowed for this circumstance with its group registration procedure, described in Form Letter 104, Contribution to Collective Works (HTML, 3k), Circular 1, Copyright Basics (PDF, 65k), and Forms TX (with instructions) (PDF, 141kb) and GR/CP (PDF, 46kb) (the two forms must be used together). Specific advice on filling these forms out is beyond the proper scope of a blawg; I highly recommend Stephen Fishman's excellent Copyright Handbook from NOLO Press (see also my no-punches-pulled evaluation of books for writers that discuss copyright—on the whole, a pretty sorry lot).

Consider the following not-hypothetical.

Famous Publisher puts out a book on investing ghostwritten for a small Illinois investment club. On its cover, the book trumpets that the investment club earned an annualized return of 23%—substantially over the market—to entice people to buy it. People do buy it. A few weeks after the book has been published, a nosy reporter starts looking at the actual hard numbers, and discovers a serious error: the 23% rate of return includes dues. Since investment club dues are actually part of capital and administrative expenses, they are not part of the return on an investment. The real rate of return was a hair over 9%, which is slightly below average for all investment advisors during that period. Nosy reporter publishes his findings in a newspaper with a large national circulation.

Several months later, Famous Publisher puts out a paperback edition of the book. The cover is identical to the cover of the casebound (hardback) edition, including the claim of a 23% rate of return. In small type on the reverse of the title page, the paperback edition notes that actual returns were 9%.

Naturally enough, lawsuits get filed, accusing Famous Publisher of false advertising for keeping the 23% return claim on the cover when it knew that figure to be grossly incorrect. What is/was the result? And was it right?

As usual, the answer is "it depends." But "it depends" in a way that should consider a recent Supreme Court decision that doesn't look like it has anything to do with book covers—only with telemarketers.

Thus, this pathetic attempt at a cliffhanger.

I'm afraid that last year's awful decision in Morris v. Business Concepts, Inc. has begun to bear fruit. One of the ordinarily more savvy judges in the Northern District of Illinois has just followed the reasoning in Morris and thrown out a copyright infringement suit on the ground that registration of the compilation copyright in the magazine is not sufficient registration to allow an individual whose work appeared in that magazine, but was not separately registered, to sue. (Registration is a prerequisite to suit, although not a prerequisite to all means of enforcing or protecting a copyright.)

The real problem here is that kicking the matter completely out of court is not the correct result. Sure, it helps clear the judge's docket. However, as registration is not a prerequisite to holding the copyright, the better approach would be to dismiss the matter without prejudice and allow the plaintiff the opportunity to obtain the registration. This is a curable defect that is not actually related to the copyright infringement or the cause of action. Once the registration has been proven up, it forms no part of actually proving infringement. Instead, it is a gatekeeping device. I also disagree with the substance of this burgeoning line of cases, which essentially requires multiple registrations for a single piece to ensure its protection and calls into question the validity of the Copyright Office's own procedure for group registration. That is an argument for another time.

All of that said, it is becoming more and more essential for authors to police their own copyrights and registrations. Given that one of the major purposes of the 1976 rewrite of the Copyright Act was to reduce the number and prevalence of formalisms acting as a barrier between creators and protection of their rights, these decisions seem rather unfortunate.

To slightly paraphrase Winston Churchill:

Intellectual property is the worst means possible to encourage progress in science and the useful arts—except for all the others.

The real difficulty with economic arguments against particular aspects of IP, such as the length of term accorded a copyright, is that they are arguments in a constitutional and logical vacuum. The vast majority of the individuals and organizations who argue against long copyright terms, for example, do not earn a living based directly upon income from their intellectual property. Richard Stallman, for example, is a tenured professor. Yes, professors do earn a living from IP, but only indirectly; the number of copies of a particular journal with one of Stallman's articles in it has at best an indirect effect on his income. This often results in a peculiar blindness toward the consequences of weakening IP protection, most especially for copyright. (In the postindustrial economy, the most valuable patents are on ideas, not mechanisms, and thus perhaps more akin to copyrights than to intermittant windshield-wiper control systems—which makes for some very interesting tangents.)

It is fine to argue against long copyright terms in the abstract. The unanswered, and all too often unconsidered, corollary issue is "What alternative means do you offer to promote progress in science and the useful arts as commanded by Article I, Section 8, clause 8?" Government subsidies for artists are not an acceptable answer; down that path one finds all those Soviet artists whose names no one knows, because their work was essentially censored. Patronage is no better, whether of wealthy individuals or of organizations; censorship without any means of objecting to it, even in the courts, is worse.

The problem, instead, is with who actually owns copyrights. That so many copyrights are not owned by the actual creators, but instead by middleman corporations, seriously distorts the entire debate. Simply prohibiting ownership of copyrights by business entities, however, does no good whatsoever, for then very little collaborative art (such as classical music recordings and cinema) would be possible. Can you imagine trying to get copyright clearance from each individual member of an orchestra and opera company to produce an edited version of Der Ring des Nibelungen?

Lawrence Solum's thoughtful, and sometimes even persuasive, blawg Legal Theory occasionally touches on matters of intellectual property. Today, for instance, he states the following, which IMNSHO completely misses the point of intellectual property:

It is very difficult to generate informal social support for laws that are unjust. The case for copyright is problematic at an abstract theoretical level, but there are virtually no intellectually respectable arguments for the copyright laws in their current form. A copyright term of 5–10 years is (in my opinion) justified; a term of 120 years is rent-seeking, pure and simple—not to mention retroactive extensions. The anti-circumvention provisions of the DMCA might be defended, if technological protections for fair use and use after expiration had been mandate, but in their current form, these provisions provoke a sense of outrage. IP practitioners frequently complain about the academy—the "copyleft" as they are found [sic] of saying. Some of this criticism is justified, but much of it is just plain silly. It is hardly surprising that rent[-]seeking legislation generates criticism.

(emphasis added)

At a policy level, there is certainly some attraction to Professor Solum's argument. The anticircumvention provisions of the DMCA are not, in fact, defensible under any circumstances as they are written, and 120 years is an excessive term for copyright. The problem, however, is his mistaken implication that "rent-seeking legislation"—in this context, long copyright terms—is always unjustified.

The fallacy here is a simple one: Note that seeking a rent from physical property, such as mineral rights in a piece of real property (note that "rent" has a specific economic meaning not related to the so-called "rent" on an apartment), does not receive similar condemnation (and, based on the remainder of his blawg, I would assert that such condemnation would be inconsistent, but that's for another time). Put another way, some properties are more equal than others.

I disagree with the other underlying assumption, too: That the excessive term limits are themselves a (or perhaps, by implication, the) major factor in public disdain for copyright. The problem is not excessive term limits per se, but abuse of those term limits by distributors. The reality is that very, very few actual creators ever engage in the kind of nonsense that corporate owners of intellectual property consider normal business practices. For example, very few people are aware that the real royalty rate on a book that earns out its entire advance (which is less than 20% of trade fiction) averages slightly over 6% of the book's cover price, before taxes. The real royalty rate on a CD full of popular music is actually slightly higher than that.

The rent-seekers are not the creators of intellectual property. The rent-seekers are distributors and other middle-men. Not very many physical items can justify a sixteen-fold increase in the cost of an almost-finished product for the market. An automobile, for example, is probably not even close to that in raw material costs, and a book or piece of music is more comparable to having all of the raw materials machined and put together into large subassemblies than to raw materials.

As you may have noted, the righthand column includes a segment for other journals and blogs (and blawgs) with this caption:

These may be of interest; I do not necessarily agree with opinions expressed in them!

So why do I put up links to material, such as that found today at CopyFight? Three reasons:

(1) Intellectual honesty. Even though I am a lawyer who practices in this area, and thus I have a considerably more than negligible ego, I am not arrogant enough to think that my views are the only views. At the same time, I am confident enough in my positions that I invite readers to look at the other side. Referring again to CopyFight, I think the logical, moral, and intellectual bankruptcy of positions like these is so apparent that I need not specifically defend mine. This in no way is intended to imply that everything at CopyFight is logically, morally, and/or intellectually bankrupt; just that positions with those characteristics are quoted, or sometimes stated, with disquieting frequency.

Well, just this time, I will: If the P2P proponents quoted really are both concerned with the artistic freedom implicit in their "free speech" position and intent on reducing the cost of art to themselves, they would concentrate on attacking the source of the problem—that is, they would learn about antitrust law, unfair competition law, and personal services contracts, and create or assist in a coordinated attack on the "evil corporate masters" through means that do not immediately and directly harm artists. What they really are concerned with because they have instead chosen theft is for another time. Regarding Mr. Clarke's point (that it is moral to manufacture guns, therefore it is moral to create P2P networks used almost exclusively for theft of copyrighted material), note that accepting this position requires accepting that all guns have equal moral bases behind them with no additional responsibility brought on by their individual natures. Manufacturing a small-gauge shotgun does not have moral justification similar to that for manufacturing an Uzi. The former has legitimate and realistic purposes—at least if you think squirrels are tasty—other than the military or unlawful killing of human beings; the latter does not.

(2) More intellectual honesty. Sometimes I learn something from my opponents, and we even discover that in reality we're on the same side but have been separated by language. I would like to think the same goes the other way, too, but it's a bit early in the life of this blawg to say that! Similarly, people who actually bother to read or use a blawg of this nature need to understand that the solution to "bad" or "harmful" speech (as opposed to theft) is not suppression, but more speech and more consideration of the consequences.

(3) One does not enhance communication and understanding by suppressing communication. That is not just consistent with the First Amendment (even when the First Amendment does not apply, such as deceptive communications) or with the general concept of creating, studying, and disseminating art. A significant proportion of art is dangerous to somebody or other in power; if it was not, censorship would not have its thousands of years of tradition. Even when that danger is "unjustified" in an individual piece, that is the price that we pay for the rest of the arts.

The Ninth Circuit confirmed a decision that at first blush concerns only photographers, but actually implicates concerns for all creators of copyrighted material. Kelly v. Arriba Soft Corp. (9th Cir., revised Jul. 8, 2003) (PDF, 43k). A photographer (Kelly) objected to the appearance of his copyrighted photographs grabbed from his website in Arriba Soft's search engine. The Ninth Circuit made two holdings:

(1)  Thumbnail images of the photographs appearing in the search engine results satisfied the requirements for fair use; but

(2)  Using those thumbnail images as links to the full-sized photographs did not, when the links displayed the full-sized photographs as if they were hosted on Arriba Soft's own website, thereby implying that the photographs were Arriba Soft's property.

It is not clear from the opinion whether it limits itself to the HTML concept of "framing" or uses the more-general artistic concept of "framing." For our purposes, it doesn't matter. By analogy, including an abstract or relatively short quotation from an article or webpage in a search engine or index would qualify as fair use, but linking to that material so that it appears as part of the search engine's or index's own content would not. One good practice is to set link targets to open new windows, like this:

<a href="[link]" target="_blank">[description]</a>

Some idiot over on Slashdot, however, has proclaimed that this means that keeping MP3s on a website therefore constitutes fair use. Not a chance. First of all, MP3s of entire songs are not comparable to "thumbnails," as thumbnails are perceptually of vastly inferior quality to the original, and no reasonable person would accept a thumbnail as a substitute for the original artwork. Conversely, the whole point of Napster, etc. is to "trade" files that many otherwise reasonable persons would accept as substitutes for the original (presumably CD) piece of music. Secondly, the underlying concern—admittedly, not very clearly expressed—is not the unfair trade practice of making the full-sized photographs appear as if Arriba Soft owned them; it is the copyright infringement of removing the correct attribution from the display of the full-sized photographs. Thus, the Ninth Circuit skates ever closer to finding that there is an implicit moral right (droit morale) to be named as the author/creator of a copyrighted work. <SARCASM> That this is common sense and good manners indicates why US copyright law does not consider it explicitly. </SARCASM> MP3s, when hosted in a searchable manner (whether on a webpage or through a P2P system), explicitly do not acknowledge the (legal, but not necessarily morally correct) copyright holder in the specific recordings: the record company.

A few items of interest this morning.

• An article on the futility of book embargoes (free registration required).
• An interview with a former editor at Pantheon who was forced out (characterized as a resignation, but more a case of jumping before he was pushed) in 1990 during the power struggle resulting from S.I. Newhouse's acquisition. The interview claims—wink wink nudge nudge—that said editor's new book is not a roman à clef.
• Last Thursday, Judge Winter issued an opinion in the Grokster case dismissing Grokster's antitrust counterclaims against the record industry (PDF, 70k). This is an interesting counterpoint to his previous opinions in the case, first denying Grokster's motion to dismiss for want of personal jurisdiction (PDF, 106k), then granting some of the defendants' motions for partial summary judgment on some copyright claims (PDF, 85k).

In yet another display of the ignorance of the marketing dorks in the publishing industry (and all too often those who report on it), Reuters reports that Rival Publishers Pray for Harry Potter "Halo" Effect (via the Washington Post Book World). Leaving aside the poor grammar in the title—it should read "Halo Effect"—the article begins by proclaiming that "Rather than envy U.S. Potter publisher Scholastic Corp's success, industry insiders are grateful that Rowling's magic touch has fired up interest in children's books."

Hogwash. Envy is the single emotional reaction shared by virtually all publishing "industry insiders," even when they won't admit it, at home-run balls hit by the opposition. Very few "industry insiders" are literature people; those who are generally jump from publisher to publisher every few years. This greatly diminishes their influence over the overall attitude and approach of any given publisher.

Instead, the sales-and-marketing types who actually constitute the vast bulk of "industry insiders"—as some of my more perceptive colleagues in the editorial department when I was in-house called them, "S&Ms"—make two critical errors. First, they believe that the market for books and literature is a zero-sum game. This can readily become a self-fulfilling prophecy when they put out crap in the interest of short-term market share. Their second error exacerbates the first. As the Reuters article says, "Fantasy series and serials are the rage and there is no shortage of titles." This is precisely the problem: imitation as the sincerest form of marketing. This is not the authors' fault, particularly given the overwhelming slush piles at the major publishers. It is certainly not Joanne Rowling's fault! The marketing aspects of imitation extend to putting books in single-category boxes. This ignores the characteristic most common to longterm successes, both critically and commercially, in publishing: transcendence of publishing "categories." Although they're loathe to admit it, searching examination of publishers' accounts under GAAP standards reveals something that they subconsciously know: the long-term health of a given publisher depends upon the strength of its backlist (books published more than two publishing seasons ago).

That the publishing insiders really have little idea of what they're doing in categorizing (and hence ghettoizing) books shouldn't come as much of a surprise, as so few of them actually read widely and deeply in what they're publishing.

I've gone vegetarian for the weekend of the Fourth. I've got one roasting on a spit in the back yard right now.

A few resources for writers who want to learn about law and publishing:

• My website, scrivenerserror.com (updated URL), has a number of links to relevant resources.
• The Copyright Office has recently revised Circular 92, the consolidated Copyright Act with amendments. I strongly recommend the PDF complete Act (1.4mb), as the individual chapters tend to be somewhat wonky in their formatting.
• The Supreme Court's opinion in Campbell v. Acuff-Rose Music, Inc. (HTML, 73kb) (the 2Live Crew case) defines how parody fits into the fair use privilege in the copyright act.
• The Supreme Court's opinion in New York Times, Inc. v. Tasini (PDF, 130kb)(usually referred to as Tasini) discusses the limits of the publisher's "reprint" privilege, and is the foundation for the retroactive contracts grabbing electronic rights to past articles and stories—without any additional payment—that periodical publishers now are attempting to force upon authors.

Another meaningless holiday in progress. Really, now: celebrate the semiformalistic declaration of a war that had been in progress for seven months and wouldn't be over for seven years? That's sort of like celebrating the filing of Brown v. Board of Education instead of the dates the decisions were issued—particularly since the Declaration of Independence is only modestly reflected in the Constitution. In fact, I'd propose replacing the Fourth of July with a date based upon the Constitution (either its signing or the date it came into effect), except that the barbecue weather is a helluva lot better in early July.

Which leads to a different, interesting sort of question: in terms of legal doctrines that have immediate impact upon writers, what two holidays might writers wish to add to the calendar? I have several candidates in mind, and we'll just have to see where that ends up.