Watch Out For That Treeeeeeeee
Kerthunk. Yet again, Tarzan triumphs over the jungle of work for hire in the Second Circuit. Maybe it wasn't Spidey who was swinging between the buildings…

   All seriousness aside, the estate of Edgar Rice Burroughs (in the form of Edgar Rice Burroughs, Inc.) has had a major influence on the development of copyright law, particularly copyright law relating to derivative properties. The muddled opinion (not the judges' fault—the opinion is actually clearer than the statute they had to work with) in Burroughs v. Metro-Goldwyn-Mayer, Inc. (2d Cir. 1982) demonstrates exactly how ineptly the entertainment industry (and publishing industry) acted under the 1909 Copyright Act. But Tarzan really does rule the jungle of the 1909 Act. From 1996 through 2000, by my count over 40% of the appellate copyright opinions that concerned the 1909 Act referred directly or indirectly to litigation over Tarzan. Unfortunately, we cannot take refuge in the much simpler, if still muddled, provisions of the 1976 Copyright Act, particularly regarding derivative works.

   The Hogarth decision issued yesterday is a cautionary tale for creators of derivative works, particularly works that might conceivably be works for hire. Interestingly, the Court of Appeals seemed to be highly influenced by a presentation from the Register of Copyright. Such reliance bodes ill for certain other controversial practices in copyright law… such as "file sharing." The gory details are for another time, and another forum. In any event, the critical language actually concerns statutes of limitations:

Even if the filing of an application for registration by an adverse party could start a limitations period, a matter we do not decide, a party cannot be held to have started the limitations period for assertion of its copyright claims by filing its own applications for registration, no matter how erroneous. Recognizing that ERB's work-for-hire "claim" cannot accrue until it has suffered some injury, the Hogarths contended in the District Court that ERB suffered a "self-inflicted injury." Not surprisingly, there is no authority for such a contention.

Slip op. at 30–31 (citations and footnote omitted). Creators should not count upon this position, however, because it creates an implicit circuit split—and may not apply equally to the 1909 and 1976 Acts. Under the 1909 Act, registration was required to assert any aspect of copyright, and copyright was "indivisible." Under the 1976 Act, registration is required only to file suit, and copyrights can be divided. Thus, we're still stuck in the tangled undergrowth while ERB, Inc. swings elegantly through the treetops overhead.

Finally jumping back to the bookstores-as-consignment-shops issue, we need to think for a bit about the timing of the various payments.

   The initial credit necessary to stock a bookstore is pretty substantial, no matter how one looks at it. However, it is credit; seldom is there much actual cash put into initial stock, as actual cash ends up going for utilities, rent, salaries, and other necessities of trade. There is no "typical" repayment term for this kind of credit. There is, however, a typical repayment term between the bookstore and the publisher: 30 days net. In other words, actual payment is offset by credits that the bookstore has accrued through returns to that publisher (or, in rare cases, distributor). For example, returning 100 copies of East of Eden (publishing by Viking, a unit of Penguin USA, in turn a unit of Pearson) will not help pay for the 100 copies ordered of The Sparrow (published in comparable edition by Ballantine, a unit of Random House, in turn a unit of Bertelsmann). Or vice versa.

   In any event, the publisher eventually gets paid. However, the publisher does not then turn around and write a check for accrued royalties (or credit the author's account for advances against royalties earned). Instead, all of the results for a given "royalty period"—traditionally six months—get consolidated, usually four months or so after the end of the royalty period. The publisher also keeps a "reserve against returns" that is supposed to buffer against returns, but is all too often manipulated to maintain constant cash flow. So, then, let's look at the timeline:

• Bookstore places order for 100 copies on October 1, 2003, for a book to be published on November 1, 2003.
• Publisher accepts order and gets compensation (either by reducing a returns account in credit or taking money) on November 2, 2003.
• Books are shipped on October 28, 2003, and placed on sale on November 1, 2003.
• The store sells 37 copies by January 10, 2004. It returns 50 copies for credit, leaving 13 copies in stock.
• The royalty period ends on March 31, 2004. The bookstore hasn't sold any more of its 13 remaining copies.
• The publisher calculates royalties due on July 31, 2004.
• The publisher issues any check or makes any credit to the author on August 30, 2004.

Gee, I wonder who has been earning interest or otherwise investing that money for ten months? It is certainly not the author!

   And it gets better. <FORESHADOWING> Remember the reserves against returns? </FORESHADOWING>

   Foreshadowing—the mark of a superior blawg.

The Rule of… Law?
Professor Solum has an interesting post on the difficult distinction between sectarian and secular moral justifications for law. This is an interesting contrast with "natural law" theories—and most particularly with the intersection among law, science, and religious belief. The most obvious of these intersections is in abortion rights. There is no one right answer; there are, however, some clearly wrong answers, particularly at the extremes.

   One easy case is the assertion that no restrictions on abortion of any kind are justified. Leaving aside the religious issues for the moment, that position is scientifically untenable. At some point during pregnancy, the fetus becomes capable of living outside the womb; sometimes with medical assistance, sometimes without. If Shakespeare can untimely rip a central figure in MacBeth from the womb, no one can claim that this is a new discovery.

   The difficult cases, however, depend upon defining the beginning point of life. That is an inherently religious question based on current scientific knowledge. It is possible that some day science will be able to demonstrate to a scientific certainty that life begins at fertilization, or at the 32-cell stage, or at some later time. Our scientific knowledge is not at this time sufficient to answer these questions to scientific certainty. The questions can be answered to religious certainty; and that is the basis for most restrictive legislation concerning abortion.

   This gets into the nasty question of particular motivations for particular legislation. It is a question that the courts have largely washed their hands of, on the ground that it is a political question. However, this is at best solipsism; the labelling of a particular issue as a "political question" is in itself a political act.

   And this is where the concerns of authors and artists come in. Abortion is not the only area that includes an intersection among law, science, and religious belief. Obscenity is an obvious example, largely through what it excludes from its definition. A lurid description of sex between consenting adults—perhaps even a married couple consumating their marriage, which until relatively recently was a legal requirement!—can qualify as "obscene." A lurid, perhaps live, photograph of street-gang executions, however, does not. Obscenity is defined solely in terms of sex. (TV and cinema "ratings" aren't much better.) There is a strong, mixed political and religious motivation in obscenity laws and decisions.

   That some "art" can be "harmful" to minors is beyond question. Exactly what art is harmful to a given minor, however, is a matter for parental control. Unless, of course, the Song of Solomon is to be treated exactly as was Fanny Hill.

Outcome Determinative
In yesterday's decision in DVDCCA, the California Supreme Court held that while one must consider the First Amendment and free speech rights in determining whether computer source code is subject to an injunction, that posting the code to DeCSS did not improperly impinge those rights. The critical language—what in first-year civil procedure courses was referred to as "outcome determinative" in federal/state choice of law—occurs fairly early in the opinion:

In determining the appropriate level of scrutiny, the critical question is whether the injunction is content neutral or content based. Content-based injunctions are subject to “the level of heightened scrutiny set forth in Perry Ed. Assn. [v. Perry Local Educators Assn. (1983)] 460 U.S. [37,] 45].” By contrast, content-neutral injunctions are subject to the lesser level of scrutiny set forth in Madsen [v. Women's Health Center], 512 U.S. [753], 765 (1994). In this case, we conclude that the preliminary injunction issued by the trial court is content neutral and should be reviewed under the [lesser] standard articulated in Madsen.

DVDCCA, slip op. at 11–12 (citations omitted). This essentially determines that the injunction will be upheld. In constitutional law questions, it is very rare for an asserted constitutional right to be vindicated under the lowest levels of scrutiny. By denying heightened scrutiny in these circumstances, the California Supreme Court put a very large thumb on the scales of justice.

   Whether this was correct or not—I think it incorrect, but I'm not on the California Supreme Court—it does raise some disturbing issues for writers. The injunction was based upon the trial court's finding that Bunner knew, or should have known, that the source code to DeCSS infringed the trade secret rights in the CSS (Content Scrambling System) built into consumer DVD players. This clashes, unfortunately, with some issues that writers could well encounter.

• The detailed accounting statements and methods of a business could be characterized as a trade secret. The summary result is not, as the summary result would be necessary to pay taxes. Does that mean, then, that under California law publishing the details of Enron's bookkeeping could be enjoined as an infringement of Enron's trade secrets—even if the public interest is thereby served in disclosing a criminal act?
• The Coca-Cola Corporation has successfully kept the formula for Coke under wraps for a century. Anyone coming into possession of that formula, however innocently, "should know" that it is a trade secret. Although "reverse engineering" is explicitly excluded as a source of improper knowledge, the lack of success over the last century in performing such a task would make a "reverse engineering" defense dubious. So, then, would a magazine that published the formula be enjoinable?
• Perhaps the most disturbing possibility involves disclosure of a criminal act that has substantial and immediate consequences for the public. Screaming "Soylent Green is people!" seems to fall within this realm.

    There is a trick in here; it is the designation of the particular injunction as "content neutral" or "content based." This is sheer sophistry; any injunction against speech is at some level based upon the content of the speech, or it is instead a silencing of a speaker on all subjects. Can this really be what DVDCCA means?

The opinion in DVD Copy Control Association v. Bunner, which just issued from the California Supreme Court today, is on its face about the conflict between copyright and trade secrets on the one hand and the First Amendment on the other. That is a considerable overstatement. It is really about touching second base—and sends the case back to second base.

   The trial court granted a preliminary injunction against Bunner for posting the source code to DeCSS (a program that defeats the copy protection on DVDs) on a website. That's first base. The California Court of Appeals reversed, skipping directly to the question of whether the First Amendment prohibits such an injunction and ignoring the other factors that one ordinarily examines in determining the validity of a preliminary injunction, particularly the factual predicates that determine the probability of success. The California Supreme Court pointed out that failure, characterizing it as a failure to touch second base and sending the runner (case) back, while needlessly pointing out that the First Amendment does not inherently prohibit a preliminary injunction against revelation of a trade secret (that also happens to be regulated by copyright law).

   I am still chewing a bit on the opinion, but I am greatly troubled by the dearth of references to a parallel matter arising out of the Ninth Circuit: Bernstein. In Bernstein, the Ninth Circuit found that treating the source code for a computer-based encryption system as a "munition" under ITAR (the trade regulations regarding export of munitions) violated the First Amendment. The California Supreme Court was not bound by Bernstein; failure to explicitly consider it, however…

   I'll have more to say on this at a later date, and try to relate it more directly to authors' concerns—because it does bear directly on authors' concerns, particularly when writing upon controversial issues.

I'm taking a moment to express my displeasure at some members of the profession. Ernie the Attorney has provided a, ahem, fair and balanced summary of Judge Chin's ruling in the Fox-Franken dispute. I will not be so fair and balanced; I am pissed off.

   Rule 11(b) of the Federal Rules of Civil Procedure reads:

By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,—
   (1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
   (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
   (3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
   (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

Although the complaint (PDF, 960k) was filed in New York state court, it was removed to Federal court, probably on federal question grounds. Unfortunately for Fox, and perhaps fortunately for the integrity of the profession, it ended up in front of Judge Denny Chin. As Judge Chin said at the hearing, "This case is wholly without merit both factually and legally." He thus denied Fox's motion for a preliminary injunction.

   Rule 11 is not imposed often enough against large law firms with their "scorched earth" tactics. Were I in a position to do so, I would file a motion for sanctions against Hogan & Hartson collectively and Ms. Hanswirth, Tiska, and Bolger individually under Rule 11. The time do so so has not passed; Judge Chin made his comments in the context of a hearing on Fox's motion for a preliminary injunction without dismissing the complaint, practically inviting a filing. Thus, opposing counsel could still file a Rule 11 motion inside the 21-day "safe harbor" afforded by other parts of the rule, along with a motion to dismiss. There is no such "safe harbor," however, for violating 28 U.S.C. § 1927:

Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.

In my opinion, Fox itself should also be punished. This would require either a counterclaim or another lawsuit, as the rules do not provide for sanctioning a party that did not sign a pleading. More's the pity. It is possible that Judge Chin could choose to do so under his "inherent powers," but defending such a sanction might be more expensive than the sanction he could invoke. After all, the lawsuit backfired: Franken's book has gotten a lot more publicity than it otherwise would have—and Bill O'Reilly's reaction has implied that there may be some truth to a parody.

   This is an excellent, if sad, example of why lawyers are held in such low esteem. In this instance, that disdain is more than justified.

I'll be offline with this blawg until late Monday due to school stuff with the kids. And exhaustion from the summer. And just because I feel like it.

Books are not sold. They are on consignment to retail outlets (stores and internet).

   When a publisher ships, say, 120 copies of Bestsellingauthor's newest novel Cornfield Lust to Neighborhood Books, the invoices will all say that the books have been "sold." (The same is true if Neighborhood Books uses a distributor instead of direct publisher order.) That is an example of form over substance. The bookstore will "own" only the books it does not return to the publisher under the "returns" policy. Normally, that means that the bookstore can start cutting its stock around 90 days after the on-sale date. The bookstore is then issued a credit by the publisher for either the hardbacks and trade paperbacks returned to it in saleable condition or the covers stripped off the mass-market paperbacks returned to it. This is a "consignment," not a "sale." As we dig deeper into the finances of the publishing business, this seemingly technical distinction will begin to take on more importance—especially when we reach taxes and Thor Power Tools.

   The books are shipped to the bookstore one of three ways: at retail (such as a customer's special order), with a short discount (typical for academic and certain specialty books, averaging around 20%), or a long discount (typical for general trade books, ranging from 40% to 55%). Thus, a trade paperback priced at $17.95 could "cost" the bookstore $17.95 at retail (minus any story-by-store consideration), $14.36 at short, or as little as $8.08 at long. The difference, when sold, is supposed to be the bookstore's operating income, from which rent, employee salaries, utilities, etc. get subtracted to create the profit. <FORESHADOWING>The kicker is the timing of the flow of funds, which quite possibly inspired E.F. Hutton's scheme in the late 1980s.</FORESHADOWING>

   Confused yet? Don't worry; you will be.

Poor Joanne Rowling. By now she must be like everyone else… and hate lawyers.

   As noted at TheBookseller, she won her lawsuit to enjoin publication of an unauthorized translation of the Harry Potter novels. She thus fared considerably better in the Indian courts than did Barbara Taylor Bradford. I will haughtily refrain from making any judgment as to whether the comparative literary merits justified the results independently of the law. Oops. I just did. Haughtily.

   In any event, there is a clear distinction between the two cases. (Whether that distinction should matter is for another time.) Bradford's suit concerned allegations of infringement of her textual work by a many-part Bollywood-produced TV serial of a different title. In other words, whether infringement existed would have been a matter of fact (in the US, probably sufficiently unclear as to require a jury trial). Rowling's suit concerned direct translation of her works in the same form, without any transformation of content or medium not introduced as an artifact of the translation itself. Thus, the fact of infringement under Berne Convention standards was clear, leaving only the matter of any privilege that the publisher may have had under Indian law to make such a translation.

   This last point may be surprising at first blush, but perhaps not after consideration. For example, a Braille edition of a book, even in the same language, is for copyright purposes a derivative work. However, in the US (among other nations) producing an edition exclusively for the blind is privileged (17 U.S.C. § 121). The interesting question that this raises is a technological rather than a legal question: What kinds of editions fall within § 121? Similarly, some nations allow the "infringement" of publishing a foreign-language work in their native tongues under circumstances that make an authorized translation virtually unheard of.

   The moral of this little story? You expect a moral from a lawyer?

I feel like doing some sort of converse version of Alice Cooper. In two days, "School's in for winter." Dank sei Gott.

I seldom read The Volokh Conspiracy. First of all, as a lawyer who represents authors, I get conspiracy theories every day—and some of them are even true. ;-) Second, despite the number of participants in the Conspiracy, there is remarkably little diversity in views; perhaps this indicates only that it's a good conspiracy? As should be obvious by now, there isn't a lot of agreement from this end.

   Today there was a "well, duuuh!" moment from one of the conspirators. David Bernstein mused upon his recent experiences with academic publishing. That all of this is incredibly obvious to someone who has seriously studied the publishing industry is not the point. That it is not obvious to those who have not, and who do not have access to reputable sources (nor the ability to determine whether a particular source even is reputable), is closer.

   The real point, though, is that Mr. Bernstein did not mention the single factor that ordinarily separates an academic press from a corporate press (they are both, contrary to Mr. Bernstein's misuse of the term, "commercial" presses): that the academic press probably gave his book more than a spellcheck. When I worked for the academic division of a corporate press, the immediate and obvious difference was the level and kind of editing afforded to different works; given my employer's reputation in the publishing community, that in-house difference was pretty consistent with the outside.

   However, this leads to another question. My employer typically priced its books (even academic books) in the same price range, or perhaps marginally above that range, as comparable-form books from mainstream presses like Simon & Schuster. That is, a trade paperback for a book with a low print run would run not more than $24, and that for a reference book, at a time that the average original trade paperback ran $16 to $20. The differences in audience and print run account for that differential. It is the inverse inquiry that is interesting. If my employer, whose per-unit costs of production were higher than those of the bigger publishers, could price so close to the works coming from those bigger publishers, and still give significantly greater editorial attention to the books, precisely what is one paying the bigger publisher for in the first place?

   The appearance of Bernstein's article is purely coincidental, even though it fits in with yesterday afternoon's entry.

Follow the Money

If you ever really want to frighten yourself, educate yourself about the publishing industry, then read the ads in Writer's Digest (note the absence of a link; I cannot in good conscience recommend it), or most other "writers' magazines". With very few exceptions, the products and services advertised prey upon ignorance. There is, however one rule that will keep writers from being ripped off too often.

Yog's Law:
Money flows toward the author.

This does not mean that all services and products for which a writer is asked to pay are fraudulent. Instead, it is based on the "car mechanic" theory. The reason that one should take a used car to a mechanic before purchasing it is that very few people know enough, and have the tools available, to protect themselves from vehicle problems. Similarly, very few authors—and I do not exclude experienced authors, many of whom should know better—know enough about publishing-industry practices to protect themselves from the inappropriate (and worse).

Over the next few weeks, I will describe some of these inappropriate (and worse) practices, and try to relate them to the legal environment of the publishing industry. There is considerable tension among personal ambition, economics, and literary merit, whether one is looking at "high literary" fiction, weekly news features, or anywhere in between. As rather pleasant homework, I suggest reading Hoop Dreams, or seeing the film (usually available on videotape through a local rental store or library) first.

Capitalization
I see, according to various news reports, that there have been extensive rallies in support of Justice Moore. That there were extensive rallies in support of Sherriff Clark with other disturbing similarities seems to have escaped the notice of the press at large.

   What this sad episode really does is point out the differences among faith, religion, and Religion. Everyone has faith. The most militant agnostic has faith in the power of reason. I have faith in the rule of law (most of the time, anyway). Small-r religion results from a set of common beliefs among a subset of all members of a community that concern one or more superhuman beings and usually a creation myth. Christianity, Islam, Judaism, Hinduism, etc., in their general senses, are religions.

   Big-R religion is something different. Historically, organized religion has been about politics, not about faith or small-r religion. This is most apparent to most Americans in the West, because most Americans are startlingly ignorant of anything else. One need look only at the context of and rumblings behind the Crusades, or the founding of the Church of England, or the First Thirty Years' War (1618–48), or…

   Justice Moore's position is based upon big-R Religion. The expression of high political office—don't kid yourself; the judiciary is political, however much we try to deny it, in the sense that it is responsible for resolving disputes short of violence—in one particular dogma has little to do with faith or small-r religion. Instead, it is a naked expression of power. Justice Moore's display of the Ten Commandments includes a far from universally accepted text. The King James Bible is a political creation. It has certainly had immense impact upon English-speaking culture; but very, very few scholars who seriously study the source texts accept many of its detailed strictures. There is a big difference between "thou shalt not kill" and "do not murder."

   If this nonsense was outside of any historical context, perhaps one could accept the particular display as being what Justice Moore publicly claims it to be: a tribute to a source of law. Considering how seldom matters "governed" by the Ten Commandments are actually considered by a state Supreme Court, however—"coveting thy neighbor's wife" seeming now to be beyond the scope of law—and that nothing is outside of a historical context, it is not.

Now for another unfavorable comment about the profession.

The idiots who filed Fox v. Franken would, in Illinois, be required to turn themselves in to the Attorney Registration and Disciplinary Commission for filing a lawsuit without a good faith basis in fact or law for the purpose of harrassment (or another improper purpose). However, New York does not impose such a requirement on counsel. This may explain a great deal. It may explain nothing, too, as it is highly doubtful that the ARDC would act on such an action.

"Fair and balanced" was used in advertising as a description of news reporting during the Watergate era, long before there was a Fox News. On its face, then, the mark is not registrable. Given the various boycotts among politicians going around these days, it is not even an accurate descriptor (of any of the major news sources, print or media, let alone Fox), and thus cannot acquire secondary meaning.

Then there's the whole issue of exemplars. And the Victoria's Secret decision. It seems pretty clear that inadequate consideration was given to these issues; one might even question whether they were considered at all, but at the hourly rates no doubt paid to prepare the complaint somebody would have padded the bill by noting review of them.

Perhaps the law is an ass. What, then, does that make those who try to use (loop)holes?

If nothing else, Chief Justice Roy Moore (Alabama) has reminded us of the importance of separation between church and state. I, for one, cannot believe that his narrow, religiously founded moral views can (or at least would) be separated from his legal consideration of the merits of an action before him. Judge Moore's contempt for legal process—whether he agrees with it or not, there has been a judgment issued against his particular use of the Ten Commandments display by a court of competent jurisdiction—says volumes about the rule of law in Alabama.

   I should not be excessively surprised. Once upon a time, during the 1980s, I was sent to a military "graduate school" in Montgomery, Alabama. It just so happened to be in early Spring. This particular school was boring in the extreme, and filled with too many "hoo-rah" types. So I decided to see about attending Passover services. Nope, no listing for a synagogue in the phone book. Let's try the Chamber of Commerce. The nice middle-aged lady who answered the phone responded to my polite request for contact information for a synagogue near the base with "Go to hell you Christ-killer!" (I remember it as being all one word).

   If that ended up in a piece of fiction, nobody would believe it. Unfortunately, it is all too consistent with the attitude that "My religion is so right that it can be used in a way that disrespects others" apparent in Justice Moore's actions.

   Fortunately, I do not practice in Alabama state courts (although I have appeared in Alabama federal courts). Thus, I am not in contempt of the Supreme Court of Alabama. Frankly, Justice Moore's actions are beneath contempt.

Napster Bad

Ernie the Attorney quite properly suggests that Congressional hearings on the P2P ("Napsterlike file sharing") controversy may be necessary. However, as all too well illustrated over at Camp Chaos, there is much more to this problem than file sharing. As I remarked last month, "The rent-seekers are not the creators of intellectual property. The rent-seekers are distributors and other middle-men." Thus, those hearings should not be limited to P2P issues, but to the context in which they arise: an industry that looks an awful lot like the steel and utility industries did a century ago.

Treating a disease needs to look at more than one symptom. Sometimes amputation of an infected toe isn't the right solution; sometimes, instead, one uses debridement or an an antibiotic. Of course, being vaccinated beforehand would be even better.

Bluntly, accounting in the entertainment industry—publishing being more honest than most of the rest, but that's very much a relative term—makes Enron look honest. Since those accounting practices, among other tools, are used to raise significant entry barriers to competitors and to control prices charged by suppliers…

Timing Is Everything
Professor Solum quite reasonably and correctly points out that the converse of my observation that law and economics scholars are Marxists is also true: that Marxists also believe in law and economics.

   I think my comparison was funnier, and as muddled as I was that's all that was important. A true Marxist would say "So what? It's the same tools, but they're using the tools of economics improperly." That kind of response is usually a hint that the tools and results are completely irrelevant; that instead it is a matter of ideology, and occasionally of personal aggrandizement, not argument. I just find it funnier to find, say, Richard Epstein (far from the most radical law and economics scholar out there) sitting down with Karl over a few beers and finding out that they really don't disagree on as much as the Organized Right would expect them to disagree upon. The narcissism of the Left and of the Right often results in greater horror on the Right when it accepts a concept on the Left than vice versa.

   What I was trying to get at was the invalidity of the "necessary and sufficient" explanation. Economic self-interest is a necessary consideration; it is seldom sufficient. If it was, why would the ultrarich end up spending so much money on art (often art of questionable value, but that's beside the point)? Whether that art is a van Gogh—usually available as an excellent lithographed copy for a few hundred dollars, not the millions paid for originals—or the "rich Corinthian leather" Ricardo Montalban extolled as a virtue of high-trim-line Chrysler products (which, by the way, is actually less durable than less "luxurious" seat coverings, including other leathers), there must be a rationale that is not solely explainable by allocation of scarce resources. If there isn't, I'm going to start painting portraits of myself missing an ear.

Fast Work

Sometimes being quick off the mark is as important as anything else. About two hours ago, I was informed of a pirate side holding thousands of books. I confirmed that works by some of my clients were there. Without authorization.

As the site was outside the US (and it was well after business hours there to boot), I sent an e-mail to the webmaster@nastysite, the individual who appeared to operate the site, and some individuals farther up the food chain. Within an hour of sending the e-mail, the site was down, and I had a contrite apology in my inbox from the site operator. Hopefully, that will actually result in a lesson learned. (Actually, I kind of doubt it; the nation in question is a marginal copyright citizen.)

A Hazy Shade of Summer

Just the usual nonsense. Fighting with school systems that don't have a clue about IDEA, FAPE, the validity of existing IEPs… or that they have already set themselves up for serious failure.

   <RHETORIAL QUESTION> What is it about August that makes school systems decide to take leave of their senses? </RHETORICAL QUESTION>

Back to the salt mines.

   In the last few days, a matter that has come to me has dramatically reinforced the case for sending copyright questions to the Federal Circuit. I am now having to wrestle with an attorney in New York over potential copyright infringement of a film. That matters because, as I noted above, the law concerning exactly what features of a literary work are protected from later use in a film is substantially different in the Second Circuit than it is in the Ninth Circuit. Although most appellate circuits have gravitated toward the Ninth Circuit's view in the Krofft/McDonald's case, the Second Circuit has not taken the opportunity to revise its own precedent. Since the matter would almost certainly be heard in California, under Ninth Circuit law, I have had to begin the reeducation process.

   Of course, the same thing happens to me on issues foreign to me. In the Ellison appeal, for example, we had to deal with an improper (in timing, substance, and form) amicus filing that would possibly have been sanctioned for misconduct in the Seventh Circuit, my home base (see, for example, this recent example (PDF, 55kb). It is frustrating enough when the substantive law varies from state to state; as inefficient and downright nasty as that can be, there is at least a constitutional basis for the variation. When there is not, however…

Not much going on today other than muscle relaxants. I have a suggestions for all of you thrill seekers out there: never jump out of a perfectly good airplane—especially not wearing 30kg of gear. Thus, I am even less coherent than usual.

Every so often—particularly when my mind is so muddled by muscle relaxants that I can't "work," but can pontificate—I get an uncontrollable urge to point out amusing ironies in legal and publishing culture. Since this month has had a lot of reference to economic justifications for and consequences of copyright, that leads to a true irony:

   Do the often conservative and occasionally reactionary scholars and judges who subscribe to "law and economics" realize that they're Marxists?

   At least, they are Marxist in that they accept the underlying assumption of Das Kapital: that economic self-interest is the necessary and sufficient consideration in explaining human group behavior. This is not to say that economic self-interest is useless by any means; in all probability, it is necessary in explaining (almost) all human group behavior. That different schools of economics may well come to different answers as to the impact of that self-interest and its policy implications just adds to the fun. The problem is that economics is seldom a sufficient explanation for anything that is not by definition involved in the allocation of scarce resources. This leads to the real question, the one that economic analysis by itself cannot answer: Is creation of artistic works in that class?

   Provisionally, I would have to answer "no." While there are certainly economic factors involved in motivating the distribution of artistic works, and thus in some sense providing both motivation and exposure for other potential creators, there remain other rationales for creating works of art. The master of the middle-brow—a writer whose skill as a writer per se is almost completely neglected—had this to say:

Putting aside the need to earn a living, I think there are four great motives for writing, at any rate writing prose. They exist in different degrees in every writer, and in any one writer the proportions will vary from time to time, according to the atmosphere in which he is living. They are:

1. Sheer egoism. Desire to seem clever, to be talked about, to be remembered after death ….

2. Aesthetic enthusiasm. Perception of beauty in the external world, or, on the other hand, in words and their right arrangement.…

3. Historical impulse. Desire to see things as they are ….

4. Political purpose—using the word "political" in the widest possible sense. Desire to push the world in a certain direction, to alter other people's idea of the kind of society that they should strive after. Once again, no book is completely free from political bias. The opinion that art should have nothing to do with politics is itself a political attitude.

George Orwell, "Why I Write" (1946) (emphasis added). That Orwell was a staunch socialist, despite his clear-eyed rejected of communism, is often either glossed over by or unknown to those who would claim him for the Right. And, in a circle, we're back to Marx again. A very wobbly circle perhaps, but in any event a closed circuit.

More on the economic background for intellectual property law—muddled as it is by noneconomic considerations—from Marci Hamilton of the Benjamin Cardozo School of Law at Yeshiva University in New York City. Her take on the policy behind Article I, § 8, cl. 8 is:

In a culture without copyright, only the rich, or the government-sponsored, could be this culture's full-time creators. Poor artists like Loretta Lynn would have to flip burgers long into their music careers - and might even give up on music entirely.

For these reasons, imagining a world without copyright wouldn't just impoverish the musicians. It would also impoverish the museum, the culture, and music itself.

If the class of creators were winnowed down to the rich and the government-sponsored, and the free market were thus to be replaced by a patronage system, the ability of art to speak to the American people would dwindle precipitously. Artistic works would cater to elites; classical music might survive, but rock and country would encounter grave difficulties.

Whether society is richer for yet another whiny ballad about pickup trucks, whiskey, cigarettes, and/or lost girlfriends (or, for that matter, poor musicianship in service of disco-like anthems about stoned teenagers in lust) is open to debate. The point, though, is that society is richer for having such an argument in the first place. As Ron Rotunda, then at the University of Illinois College of Law, was fond of remarking, the solution to "bad speech" is "more speech."

   In any event, real starvation does not help artists create more art. They can't create art pushing up daisies.

First, a minor annoyance and comment on the poor design defaults in most blogging/blawging software:

   If you really expect me to read an entry in your blawg/blog that is linked from elsewhere, it's really helpful if the link points to the top of the entry. (That's why I put the timestamp before the beginning of the first paragraph—in Blogspot terminology, that puts the "permalink" at the beginning of the paragraph.) Since the timestamp is added automatically, I don't have to worry about checking my watch when I'm done posting.

   Fortunately, Neil Gaiman doesn't have this problem. If you care at all about artistic expression, you should go read his recent entries on the Jesus Castillo matter, in which a graphic novel—merely by being misfiled in among the girlie magazines—caused a serious problem for a bookstore, because (according to the prosecutor) "everyone knows that comics are for kids." <SARCASM> Yeah, that explains why Doonesberry has been awarded the Pulitzer Prize for editorial cartooning, given out by one of the most reactionary and least artistically aware juries in all of publishing. </SARCASM>

   What really saddens me the most about this matter is not the loss, or the poor grasp of First Amendment principles and law in Texas. I expect those. Any litigator who takes on high-risk matters—and First Amendment issues are practically the paradigm—must expect to lose 10-15% of the cases he or she should objectively win. What concerns me is the assumption by one of Mr. Gaiman's correspondants that Dallas is "less reactionary" (my words) than the rest of Texas. The single most controversial case decided since Earl Warren left the Supreme Court came out of Dallas: Roe v. Wade.

   On another point: Mr. Gaiman understates, if anything, just how good we have it in the US. There are indeed significant flaws in First Amendment doctrine, let alone practice. Mr. Gaiman rightly shudders when comparing it (I presume, based on his country of birth) to the UK, which does not have such a provision, and yet is unusually enlightened compared to the rest of the world. For example, during the last decade under the Shah and the first decade thereafter, there was essentially no culture of reproducible art in Iran. Anything that could be reproduced—musical recordings, books, paintings, film—either originated in the 1960s or earlier or was brought in from outside. It was simply too dangerous to practice art in a way that left behind a record…and all too dangerous in any event.

   To again mangle Winston Churchill only slightly, and in a way of which he would definitely disapprove: Censorship by the marketplace is the worst possible form of controlling expression—except for all the others. (Note that I didn't limit it to controlling "harmful" expression, which was the purported issue in the Castillo matter.)

Apparently, I'm not the only one who finds the epidemiological evidence of anticopyright bias from "cyberprofs" at least disturbing. See my previous discussion with Professor Solum, in which I argued that "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."

Regardless of our differences on economic theory—neither one of us is going to convince the other which theory of economics is "right" in this context!—economics does not and cannot fill the constitutional and logical vacuum. The constitutional vacuum is Article I, § 8, cl. 8, which explicitly states a noneconomic purpose as justification for copyright (and patent); the logical vacuum is the question of "if not property, what alternative means consistent with the constitution?" (Although the latter seems as if it is just an extension of the constitutional vacuum issue, it goes to the method rather than the substance of the argument.)

An interesting article in The Guardian:

Then the logic gets even more curious, because the AJKR famously received, I believe, a mere- to-average �2,000 for her first children's book. Her success came from people buying the book, not from publishers getting excited - very different things.

*  *  *

Apart from a simple-minded desire to be your own self rather than a new anyone else, the question remains: why would anyone want a New JK Rowling? The old one works perfectly well. I'm not sure another one is practical. Are there enough trees?

Louisa Young, "We are all the new J.K. Rowling now," The Guardian (05 August 2003). Go ahead—read the whole article. It's rather amusing, in a sad sort of way, because some of the bitterness hiding behind it seems genuine (and not unreasonable).

Sometimes my head hurts enough dealing with US copyright law. Just wait until international law raises its pointy little head!

   Not so very long ago, Cuba decided that it wanted to reclaim the rights to music that two Cubans had composed, then sold to a Los Angeles-based music company. <SARCASM> No, Virginia, there was nothing political involved in this at all. </SARCASM> Cuba simply used its own legal system to "take" those rights back, then resold the rights that had been transferred to a German music publisher. When the German company tried exploit its new rights in England, the Los Angeles publisher objected.

   I had been waiting to see the appellate opinion in this matter; thanks to IPKat for keeping on top of it (much easier for those in the UK!). In a very unsurprising unanimous decision, the British court decided that the Los Angeles company had the superior claim. This is unsurprising. Even though Cuba was not a member of the Berne Convention, both Germany and the US (and, for that matter, the UK) were at all relevant times. Basically, one cannot fence stolen property this way. Although the British court was too polite to say it in so many words, that seems to be the judges' opinion of what actually happened: outright theft.

   This bears some food for thought for Sharman Networks (the operator/provider of KaZAA, one of the largest music filesharing systems). Even though Sharman Networks claims to be headquartered on a Pacific island that probably has more corporations than actual residents, and that island-nation is not a member of the Berne Convention, the British court's reasoning indicates what will probably happen to it eventually. And not a moment too soon, either; subversion is almost always more successful in the long run than is armed revolution, and is a critical component in those armed revolutions that have been successful.

It's August. Therefore it must be boring.

   August is a terrible time for news in the publishing industry. It is largely "between seasons" as far as actual releases go. All of the academic books for fall course adoption had to be available by April, except perhaps updated editions, and those are to press by now. The "fall season" traditionally does not begin until 01 October, but has begun creeping a bit into September. (Publishing "seasons"—except perhaps for truly seasonal works, such as a guide to making Christmas decorations from common household packaging waste—are nonsense, but that's for another time.) Editorial staffs are pinging between trying to get the last of their summer vacations done while running around headless over last-minute errors in material for the "fall season," which means that submitted manuscripts are being read even more slowly than usual. Printing companies are going full-blast, often with extra shifts operating.

   And because there is so little leisure, there is correspondingly less time for publicizing mischief.

Although he's not yet in the race, I cannot resist:

   I'll be back.

   In any event, I've just migrated to a new Windows XP machine; I've had a few other priorities than blawging over the last few days. Silly things like getting my 100% legal collection of MP3s loaded. Serious things like dealing with new opposing counsel who were determined to make things even more unpleasant than they already were. And truly frivolous things like eating.

Clients are friends, not food.

At the moment, I am busy getting a new computer ready to put online here. That is going to slow down commentary here for a few days. Slow down, but not eliminate.

   The Senate has failed cloture votes (votes to end filibusters) on judicial nominees Miguel Estrada, Priscilla Owen, and William Pryor. Mr. Estrada does not have an extensive track record, and is being pilloried for refusing to turn over internal memoranda that he wrote while in the Solicitor General's office. As those memoranda are at least arguably privileged, and the remainder of Mr. Estrada's record reflects a thoughtful lawyer who is perhaps too often swayed by conservative assumptions. That, to my mind, is not enough to justify a continued filibuster, particularly in face of the candidates behind him in line.

   Confirming Priscilla Owen would be a disaster for authors. Ms. Owen's jurisprudence is extremely hostile to unpopular points of view and particularly to persons espousing those opinions. Her continuing diatribe on some hotbutton issues while she sits on an appellate court in Texas leads me to seriously doubt her ability to conform her opinions to the facts of the matters before her. Mr. Pryor's record in those same areas is, if anything, worse.

   But why a filibuster?

   In this instance, sauce for the goose is sauce for the gander. The Republican minority engaged in similar and occasionally identical tactics to block Clinton nominees whose ideology was a lot closer to center than the current controversial ones. Since the Judiciary Committee is now no longer respecting the "blue slip" process, in which disapproval by both senators from the state from which the judicial candidate will be appointed is supposed to block the nomination completely—a tradition extending back to the early part of the twentieth century—the children have been left with little alternative in dealing with the neighborhood bully.

   That is exactly what this reminds me of. Mean old Georgie is trying to make his friends members of the gang, but won't even let the kids ask their parents whether his friends would be good members of the gang. Meanwhile, the actual argument makes second-grade recess sound both morally and intellectually uplifting.

   Somebody voted for these turkeys. It wasn't me.