Amazon PR Bullshit
This is starting to look like a bad, bad 1980s movie about corporate greed. Possibly one starring Pauley Shore. Yes, that bad.

   We'll start with this gem, as reported on Publisher's Lunch (a newsletter on the publishing industry):

Despite all the ink given to those authors who have qualms about the program, Amazon’s vp of the North American media group says only 15 authors have asked to have their books removed program. As indicated informally in our previous report, Kessel says, "We're definitely cooperating with that."

Let's just hope that this quotation came from Monday. If it came as late as Tuesday, it's an outright lie, in two respects. First, I am personally aware of more than 15 authors who had asked for removal by the close of business on Tuesday, and I'm certain there are others I don't know about. Second, the "definite cooperation" involves violating 17 U.S.C. § 512(c)(2), among other problems. Amazon is basically insisting that authors go through their publishers to get material removed; cutting through such bullshit is exactly what § 512 was supposed to do.

   Next, we'll go into the realm of scientific implausibility. Again quoting from Publisher's Lunch, although I've seen variants of this particular assertion in several other sources:

Amazon dropped a press release yesterday saying that in the first five days of their Search Inside the Book program, titles in the program showed sales growth of 9 percent versus non-participating titles. The e- tailer says that another 37 publishers have contacted them asking to participate in the program. Jeff Bezos says, "We're truly excited by the positive response from customers."

Can you say "inadequate statistical sample?" See? I knew you could. Even if the sample was adequate, it does not account for multiple alternative explanations—such as the spike effect that any new feature at any Internet retailer has on sales. Look at a full month's sales in, say, February, By then, the statistical sample will be scientifically valid, and the newness variable will no longer complicate analysis. If at that time there is a difference—given that participation in the program is self-selecting in a way that skews the analysis to start with—I suspect that comparative sales growth will be under 3%, or in other words less than or equal to the inherent margin of error from this kind of analysis! The math isn't all that hard to do, particularly computer-assisted; it's just so seldom done by people who should know better.

   Of course, the real problem is that trumpeting the purported successes of the program does nothing to address the needless harms or the authors' individual rights. Some proponents made the same assertions that Napster et al. would result in increased sales of recorded music. As it happens, I do not trust recording industry accounting any more than I trust GAO contract analysis (which is to say not at all). However, there is little or no evidence of an overall increase in sales for any artist who did not specifically authorize release of MP3s.

More Theory
At Professor Solum's blawg on Legal Theory, he has a long posting on the theory of conflicts in class litigation. N.B. Not so long ago, I was a plaintiff's-side class action attorney; I think I still remember quite a bit about it. In any event, Professor Solum's basic conclusion is this:

It is now obvious that something has gone dreadfully wrong with our application of the veil of ignorance to the problem of hypothetical consent to intraclass conflicts…. Putting the class members behind a veil of ignorance that excludes knowledge of position in the class is an inappropriate way of representing deliberation by a reasonable party deciding whether to consent to a conflict, because “position in the class” is what is at stake…. Our problem was conflicts of interest. You can’t reason about conflicts of interest by imagining that they don’t exist and then asking, “If there were no conflict, would you consent to it.” In other words, Miller’s idea is incoherent at a deep level. (emphasis in original)

An even simpler statement of why the "veil of ignorance" is not a useful tool in evaluating potential intraclass conflicts comes from recognizing that a conflict has both a quantitative and a qualitative dimension. That is, evaluating a conflict requires understanding both its prevalence and its seriousness. The burden of proof in a criminal prosecution is a good example of a balancing to limit the "value" of intraclass conflicts. Behind the veil of ignorance, one must assume that one might be a member of the class of wrongly accused individuals at some time. The "qualitative" dimension of a wrongful conviction is considered so great that the burden to convict is set high enough to limit the "quantitative" dimension of that wrongful conviction—that is, limit its prevalence to an "acceptable" level.

   The "veil of ignorance" conflates these two dimensions. It asks a single, binary question: is the intraclass conflict "serious enough" that a representative action is inappropriate? However, since the very nature of a conflict is not binary, but multivalued, it is asking an unanswerable question—because the "high quality and high quantity" quadrant of the truth table (in our example above, letting the guilty go free) can easily be construed to overwhelm the actual conflict. Without the direct data on both the qualitative and quantitative dimensions, no answer to the question is sound, because it relies upon incomplete data.

   Now look at Amazon's "search inside the book" feature. For those who do not object, there is no possible conflict. For authors of book-length works who do object, the initial resolution must be with the publisher, because typical publishing contracts give the publisher the right to put out excerpts as publicity. Those who do object, and write shorter works that are collected in longer works, must resolve their problems with multiple actors: Amazon and the publisher (see Tasini). This creates a clear conflict; but using a "veil of ignorance" analysis would hide it, because it is not possible to balance the interests without knowledge of the initial position. The question then becomes this: does that last quadrant indicate that Amazon's program should/must be opt-out (that is, include everything unless objected to) or opt-in (include nothing without adequate permission)? The follow-up question is who may make that decision?

On the Way to Sesame Street S&L
<JINGLE> One of these things doesn't belong with the others… </JINGLE>

   
• Teenager
   
• Orthodontist
   
• Savings account

Kids. Can't sell 'em. Can't work 'em hard enough to pay off.

More on Amazon's "Search Inside"

I have had marginally satisfactory communications with Amazon in the last couple of days. Although this is not legal advice for your situation, I have posted a suggested general course of action on the main website, with a sample letter consistent with that suggested general course of action.

My conversations imply that the legal department at either Amazon or the various publishers was consulted—if at all—at only the last moment. Score another one for the marketing dorks running the publishing industry. Amazon's intransigience over the situation—denying applicability of the DMCA and stating that it wants to hear only from the publisher, due to "contractual obligations"—indicates the need for careful watching. To slightly paraphrase one of our founding fathers, "eternal vigilence is the price of copyright."

In fact, as I write this, Google appears to be spinning up its own version; and given Google's piss-poor past attitude and compliance in responding to DMCA notifications, I am not especially pleased to hear this.

It now appears that Amazon has decided to put the search feature back online. It is now substantially slower than it had been, but that's not much of a virtue.

Sometimes it pays to be an aggressive plaintiff's-side lawyer. As of this morning, Amazon.com's "search inside the book" feature appears to be (at least temporarily) disabled. One gets the following message when actually entering text to search:

Looking for something?
We're sorry. The Web address you entered is not a functioning page on our site

Maybe that DMCA letter with suggestions as to their whole program did some good—the Authors' Guild's previous announcements didn't seem to get much of a result.

Amazon and Retrograde Motion
There have been a lot of electrons (and even some ink) wasted on facile considerations of the new Amazon "search inside the book[s]" feature. It is a "feature" that is so ill-conceived and bug-ridden that it should never have been released—and it presents major copyright problems for a large class of authors who have largely been silent thus far.

   For those just returning from a short fall break on Alpha Centauri who don't know what I'm talking about, Amazon now allows one to search for text inside a book. What pops up in return is a purported "image" of the page on which that text occurs, along with "forward" and "back" arrows that allow one to go a few pages in each direction. Supposedly, one cannot print these image pages; defeating that "protection" is so trivial that it is actually available by changing a default setting in IE6, if one knows what to look for, and can be done manually in any browser.

   Well, that doesn't sound so bad, does it? Get a few pages out of a book, see if it has the information one needs, then go out and buy the book? I'm afraid not. This feature was implemented without any real thought by the programmers or the legal staff at Amazon, for a very simple reason:

Not all books are single, complete manuscripts.

   It is trivial to retrieve individual stories, essays, and poems in their entirety from collections and anthologies. Particularly as many of these works will be less than the apparent nine-page limit on retrievals embedded in the engine (that is easily circumvented by reinitialization of the search, and I'm not going to describe how—it would take longer to describe it than it would for a reasonably perspicacious third-grader to figure it out), that results in a copyright violation. And the release of an easily-convertible-to-plain-text version of that independent work into the wild. Without the author's authorization or even knowledge. <SARCASM> Except for my clients, of course. </SARCASM>

   As Professor Bainbridge points out, this is also a significant concern for authors of reference works. In his posting, Professor Bainbridge indicates that at least one publisher—the University of California Press—has given at least cursory thought to the issue by excluding "some" reference books and books of poetry. But that's not good enough. Using a 56k dialup connection, it took me less than six minutes to get a "free" copy of a 9,000-word article in investigating one of my clients' collections of academic works. It's an important, indeed seminal, work in that field; and it took less than five minutes thereafter to run the result through OCR software and get a compact, editable version that could easily have been posted on the Internet through any of the various pirate sources. Needless to say, my client was not very pleased.

   On top of all of the above, consider the problems caused for smaller publishers. Based on conversations with people at Amazon in the course of trying to get some of the above resolved, Amazon approached the place from which they get books for their "permission" (realistically, it was probably pretty close to the unstated blackmail of "your competitors have already confessed, so why don't you make it easy on yourself…" used by experienced interrogators) to post the material. There is just one tiny problem: that source, even though it may be a publisher, often is not the publisher with the right to make that decision. A substantial number of smaller publishers, particularly those specializing in reprint collections and anothologies of both fiction and nonfiction, do not act as their own distributors. Instead, they contract out to another publisher to act as the distributor. (If you have any idea what it takes to run a book warehouse, you understand why.) On the initial evidence, Amazon did not contact actual publishers if there was a distribution agreement. Distributors do not have the authority under standard publishing contracts, or under the specific contracts that I have reviewed, to make this decision for either the actual publisher or the author.

   Some of this accounts for the rather tepid response of the Authors' Guild to the situation. This is completely understandable, if a bit short-sighted: the Authors' Guild (yes, I have corrected the punctuation in the organization's name; it's a pet peeve of mine, because one doesn't create a collective organization from a single author) consists almost entirely of authors of book-length manuscripts, even though the eligibility requirements indicate that freelance writers of shorter works are also eligible. Thus, the problem with "extraction" is just not on the Authors' Guild's radar screen, because "extraction" of significant portions of a larger work is not very easy.

   In technical terms, some of my clients and I are really pissed off by the highhandedness with which Amazon's new "feature" has been implemented. Even if the publishers did have the rights in question, Amazon didn't even provide the common courtesy of advance notice to individual authors to allow them to opt out before any damage might have been done. Neither did the publishers. And the arrogant assertions that this cannot result in a copyright violation clearly result from keeping various heads six feet under some very dense beach sand, waiting for the tide to come in.

   Amazon has already been notified with the polite version of The Letter. I expect things will be much less polite by the end of the week if there is no significant and verifiable action. Dammit, this should have been done on an opt-in basis, not an opt-out basis. The publishing contracts and copyright law demand nothing less.

John Hart Ely, one of the giants of legal theory (and in particular of free speech, and indirectly defamation, at the constitutional level) died Saturday. Although I think his position does not go far enough in some respects, the most important aspect is that Democracy and Distrust firmly establishes a theory of judicial review that explicitly decouples judging from transient popular majorities. Some might argue that this is merely following in the footsteps of de Tocqueville. There is no shame, however, in making the curmudgeonly leaders of the legal profession—who in the 1970s were overwhelmingly old, upper-middle and upper class, white men—see that.

   Whether one agrees with Ely or not, one must at least acknowledge and engage with his theories on judicial review, in the same way as one must acknowledge and engage with Wayne LaFave on search and seizure, Harry Krause on family law, and Ron Rotunda and Geoffrey Hazard on legal ethics. Aside from the thoroughness of their scholarship, these influential legal scholars have another common virtue: writing that is as clear, concise, and direct as one can find in legal scholarship. That itself should be a hint to the legal profession.

<RhetoricalQuestion> I wonder if Judge Moore would continue to push for a closer bond between church and state if the church in question was Matthew Hale's (see next/previous item). Or the Catholic Church. Or, indeed, any church other than his own. </RhetoricalQuestion>

   Judge Moore's continued misbehavior—which is conduct unbecoming a member of the legal profession, let alone a member of the judiciary—is some of the best nonprecedential evidence in favor of upholding Newdow (substantive opinion below) (PDF, 65k)—not so much because the words "under God" in the Pledge of Allegiance are always offensive or directly lead to excessive church-state entanglement as because they imply that result. Which would be bad for authors; we do not need an American Index Liborum Prohibitorum. With the enthusiastic bookburnings of Harry Potter going on, and (real, I'm not joking) attempts to have Fahrenheit 451 banned from school classrooms and libraries—some people just don't get "irony," although they'd have a better chance if they'd read the books they want banned first—it would only be a matter of time. Probably, in fact, a reasonably countable number of Planck time units; my guess would be about five, but I could be off a couple either way. The fact that several versions of such documents "adapted" for contemporary America already exist is scary enough.

A news item on lying scum. (I can say that because there's a court judgment that says so. Nyaah nyaah nyaah.)

The odious Matthew Hale won't become a lawyer any time soon—most probably because he's sitting in jail for trying to get a subordinate to murder a judge who rules against him in a trademark dispute over his former "church," the "World Church of the Creator." That "church" would have given the Sonderkommando element of the Schutzstaffel some serious competition for "most militant bigots in the history of the planet."

As a result of trial misconduct—Judge Lefkow is pretty fair, and has a pretty thick (but not bullet-proof) skin — Hale and his "church" were just ordered to pay $200,000 in sanctions for "repeatedly thumbing their noses at a court order". He probably got off light from this one; his criminal trial for soliciting the murder of a federal official starts on 03 November.

A nasty review of a nasty bookreviewer today. Dale Peck is even less liked in the publishing community than Michiko Kakutani. Peck's main virtue is not his prose style or poison pen—there are half a dozen reviewers whose styles are more prolix or pens more venomous than his—but the honesty of his reactions. Sometimes that honesty betrays a lack of sophistication in literary manners and taste bound to values similar to those of Henry James, such as his trashing of Gaddis. But at least he has something to say that cannot easily be anticipated by the publishing community. The tone can; but the substance is at least unique to Peck.

   The pseudoprofile of Peck seems more calculated to find personal flaws in Peck than engage with the substantive problems with his reviews. Having opinions on books is a good thing; making them defensible is another. James Atlas does not succeed in making defensible his portrait of Peck any more than Peck often succeeds in making defensible his excoriation of contemporary authors. Pointing out that the emperor has no clothes is a valuable service, but if one makes the claim too often without justification it will not be believed when it is true. There is an insight in there for the publishing community (and recording and TV/movie communities as well), but it is one that only those who already share it will recognize.

Watch Out For That [Dead] Treeeeeeeee!
The recent dispute between Disney and Caterpillar over the appearance of Cat's trademark on construction equipment that appears in George of the Jungle 2 is a bit ridiculous—on both sides. On the one hand, Disney's position that it is entitled to use the equipment with the marks showing in an arguably derogatory manner on First Amendment grounds (among others) is not consistent with the Mickey MouseSonny Bono Copyright Term Extension Act of 1998 that formed the basis for the opinion earlier this year in Eldred. On the other hand, if Disney had covered up or altered the Caterpillar mark on the construction equipment, it could have been at fault in trademark law for falsely designating the origin; and Caterpillar isn't exactly a company well-known for its proactive environmental concerns in the first place, given its longstanding efforts to ensure that construction machinery is exempt from clean air standards.

   Laura Hodes, a columnist at Findlaw, closes her analysis with the following:

The law should not let Disney and other creators and disseminators of mass entertainment carelessly use trademarks in which companies have invested. (After all, Disney itself is quick to litigate against a company that harms one of its trademarks and to work to get Congress to extend the duration of its copyrights.) To do so is to begin on a slippery slope to a world in which trademark owners have no control over the use of their trademarks in mass media—and in which the trademarks therefore lose their distinctiveness and value.

"Caterpillar v. Disney" (23 Oct 03). I must beg to differ with Ms. Hodes. To begin with, her analysis depends upon a line of wrongly decided cases out of the Ninth Circuit that give excessive control to celebrities (Vanna White) in exemplary depiction, and to authors (Theodore Geiskel, aka Dr. Seuss) for imitation of their style. Even if this line of cases is correctly decided, Judge Kozinski of the Ninth Circuit had a much more cogent response to the issue.

   After Mattel filed suit, Mattel and MCA employees traded barbs in the press. When an MCA spokeswoman noted that each album included a disclaimer saying that ["]Barbie Girl["] was a “social commentary [that was] not created or approved by the makers of the doll,” a Mattel representative responded by saying, “That’s unacceptable…. It’s akin to a bank robber handing a note of apology to a teller during a heist. [It n]either diminishes the severity of the crime, nor does it make it legal.” He later characterized the song as a “theft” of “another company’s property.”
   MCA filed a counterclaim for defamation based on the Mattel representative’s use of the words “bank robber,” “heist,” “crime” and “theft.” But all of these are variants of the invective most often hurled at accused infringers, namely “piracy.” No one hearing this accusation understands intellectual property owners to be saying that infringers are nautical cutthroats with eyepatches and peg legs who board galleons to plunder cargo. In context, all these terms are nonactionable “rhetorical hyperbole,” Gilbrook v. City of Westminster, 177 F.3d 839, 863 (9th Cir. 1999). The parties are advised to chill.

Mattel, Inc. v. MCA Records, Inc. (9th Cir. 2002) (emphasis added). However, I suppose that asking Disney to grow up when the underlying dispute is over a putative children's film depends upon an excessively generous evaluation of Disney's capacity for learning and maturation. Asking Caterpillar to do so, given the way it treats its employees, is probably equally futile. The irony that this litigation has undoubtedly killed a few trees all by itself seems lost on both parties—they can't seem to see the deforestation for the dead trees.

   I really dislike seeing the courts resemble elementary-school recess. Judge Kozinski's advice is quite sound. Since the film in question is a sequel to a film loosely based upon a 1960s satiric animated TV series—a film that largely missed whatever point there was to the TV series—I shouldn't be surprised. I'm not angry; I'm just terribly, terribly hurt.

With Friends Like These…
Amicus curiae ("friend of the court") briefs are supposed to allow parties who will be seriously effected by the decision in a live controversy to make their views known to a court, usually an appeals court, to assist the court in reaching the correct legal decision. Supposed to, that is; and they are supposed to be used "only when the court is in danger of making an incorrect decision because a party's position does not adequately represent the vital interests of the amicus." All too often, amicus briefs are tools to either evade the page/volume limits on appellate briefs or mere repetition of the party's arguments.

   The most despicable practice, though—one that I have personally seen attempted, and counseled the prospective amicus against signing on to the brief—is filing that amicus brief in coordination with the party, largely (if not entirely) written by the party's counsel. That is not just morally wrong; it is a clear violation of the legal ethics rules. See Rules of Professional Conduct 1.7(b), 1.8(f)–(h). And when this is attempted under a fee-shifting statute—which could, in theory, force the losing side to pay both the winner's own attorney's fees and the attorney's fees run up by the winner's attorneys in representing the amicus—it is even worse. This matters to authors because the Copyright Act includes a fee-shifting provision; it is discretionary, not mandatory like civil rights laws, but nonetheless a substantial possibility. Similarly, the Lanham Act and some state trademark statutes have discretionary fee-shifting provisions, as does the Patent Act. The Eleventh Circuit just noted this problem in Glassroth (the Ten Commandments monument in the Alabama Supreme Court case) and established circuit law that the time an attorney spends on amicus matters may not be shifted to the losing party as part of the basis for attorney's fees.

   None of this is to say that there is never a valid purpose for an amicus. For example, there are multiple amici in Ellison, most of whom are proper amici. In my judgment, two of the submissions for the other side were not proper, but they were nonetheless allowed (one by the court, one because we did not consider it worth our while to oppose it). That is not to say that amici and parties can never cooperate; it is only to say that an amicus needs to demonstrate a distinct interest from a party. The courts appear to be slowly moving in this direction, if only to avoid being buried under even more dead trees; four circuits in the past twelve months have specifically questioned wheter certain amicus briefs were merely attempts to evade the page limitation in the Federal Rules of Appellate Procedure. <SARCASM> But there oughta be a law… </SARCASM> or at least a clear rule on the subject, not just rather neglectful judicial discretion as there is now.

The Emperor's New Jacket
Michiko Kakutani is not beloved of the publishing industry. A leading "weekday" reviewer for the New York Times (that is, her work ordinarily appears in regular editions, not the Sunday Book Review), she is renowned for her poison-pen reviews. Think Mikey in the old Life Cereal commercials—according to many publishing industry insiders, she doesn't like anything. While I do not agree with all of her evaluations, her positions are always at least clear, cogent, and defensible, which is more than I can say for PW or Kirkus or Hornbook or NYRB or even the Sunday NYTBR.

   So I am waiting for the whispering campaign against her to become a shouting campaign after she pointed out in today's New York Times that "celebrity-written" books for children are not usually very good. This is yet another instance of brand ruling over substance, which is particularly ironic in children's literature. The cold hard numbers indicate that children's literature, more than any other market segment, survives based on the strength of sales after the ordinary 18-month life of a book in active distribution. That should encourage publishers to look for the characteristics that tend to allow a book to exceed that 18-month life: good writing, grappling with difficult issues (at least "age-appropriate" difficult issues) without preaching, a sly sense of humor, and characters with whom the reader can empathize (if not always sympathize).

   In the current market, though, publishers are looking for "the next J.K. Rowling." Ms. Kakutani's article lists a number of celebrity "authors" of children's books—and at least three on her list were ghostwritten. What that says for publisher judgment… As Ms. Kakutani closes her essay, "So far Joanne Kathleen Rowling-never mind the Grimm brothers and Dr. Seuss-faces little serious competition in the children's book business, at least not from the celebrities who covet her celebrity and underestimate the difficulty of her art."

Oh dear. Another misunderstanding that needs to be cleared up, from someone who should (and usually does) know better. At Slate today, in commenting on Muhammed's last-minute self-representation at his criminal trial, Dahlia Lithwick reaches the right conclusion—that misguided precedent essentially allows capital defendants a state-assisted suicide. However, in the middle of her otherwise cogent analysis, she says this:

It is a myth that trials are about "telling your story"; that, as Muhammad seems to believe, if you can just get up and babble at the jurors, they'll eventually believe you. Trials are about managing a complex system of filters that allows some evidence to be heard and some to be suppressed. Trials are about subtle cross-examinations that diminish the credibility of a key witness. Trials are about the introduction of mitigating evidence at the sentencing phase. Managing your defense without command of these skills is like performing a heart transplant without surgical training... something else we do not, by the way, generally permit.

"Court-Assisted Suicide: Why Only Serial Killers Have a Right to Die".

Aside from that first clause, this is a cogent description of trial work. But that first clause is, I am afraid, absolutely incorrect. Any attorney who goes into a trial, let alone an appeal, without having a story to tell is asking to lose a possibly winnable case. Further, the specific skills Ms. Lithwick describes as necessary to managing a trial are equally necessary to telling a coherent story. Not every detail makes its way into a story; whether one believes Chekhov's admonition that seeing a gun in the first act requires its use by the third or not, even Finnegans Wake, Ulysses, and Proust are selective in their presentation of details. Subtle details and omissions in dialog and character description enhance or diminish the credibility of every character. I have lost count of the number of novels that attempted to change their actual meaning post-climax; one infamous example is Hawthorne's baldfaced attempt to put some "deeper meaning" into The Scarlet Letter at its close.

My objection is not to the analysis, but to the implicit distinction between "telling a story" and "presenting a good case" (whether defendant or prosecution/plaintiff). The reality is that just as a jury won't believe a sob story without evidence, a jury won't draw the desired conclusion from a morass of exhibits and testimony that is not shaped around a conclusion that supports a verdict. The latter is telling a story.

I think Ms. Lithwick really meant something like "It is a myth that trials are about 'telling one specific story: that your actions, whatever they were, are justified by your life experience'" — for, based upon the opening statement made today, that is exactly what Muhammed is doing.

Clear, Cold, Beady Little Eyes

Professor Bainbridge notes today that Disney isn't, umm, a good creative citizen.

…Disney's relentless left-liberal/PC propagandizing is an equally severe problem in its recent films. Terry Teachout aptly criticized "the Little Mermaid/Beauty and the Beast Disney school of filmmaking, in which beloved children’s stories of the benighted past are updated by a political-correctness committee and fitted out with insipid soft-rock ballads." Indeed, it's not just recent films. The latest restoration of Fantasia, for example, cropped the "Pastorale" sequence to eliminate a female black centaur.

"Today's Links." Once again, I think Professor Bainbridge is right that Disney's output is crap, but not for the right reasons. It has nothing to do with ideology, and everything to do with disrespect for the source material. Three examples should suffice.

• Snow White had a sister, Rose Red. At least in three of the four major fairy-tale sources, she did; and the relationship between Snow White and Rose Red is actually the core of the tale, albeit in slightly different ways in each. At the core, the tension between the sisters depends upon sexual competition. One thing that all four agree upon, however, is that Snow White does not just wake up in the arms of Prince Charming and dance off happily ever after into the sunset. Instead, the Queen gets to dance—to her death, in magic shoes that won't come off (they either force her to dance to exhaustion or become red-hot and burn her to a pile of ashes as she begins dancing, depending upon the source).
• Hans Christian Anderson's "Little Mermaid" dies. This is in fact necessary, whether from the standpoint of a psychological/mythological archetype or merely the internal logic of the story.
• The less said about the purported resemblance between Disney's abominable animated Alice in Wonderland and Carroll's darkly humorous but played absolutely straight satire the better.

There is a common thread here, and it is far from unique to Disney: the filmmakers don't trust their audiences. Ursula Le Guin's description of writing for children is priceless.

All you do is take the sex out, and use little short words, and little dumb ideas, and don't be too scary, and be sure there's a happy ending. Right? Nothing to it. Write down. Right on.

If you do all that, you might even write Jonathan Livingston Seagull and make twenty billion dollars and have every adult in America reading your book!

But you won't have every kid in America reading your book. They will look at it, and they will see straight through it, with their clear, cold, beady little eyes, and they will put it down, and they will go away. Kids will devour vast amounts of garbage (and it is good for them) but they are not like adults: They have not yet learned to eat plastic.

"Dreams Must Explain Themselves" (1973). Then keep in mind that Le Guin is talking about a higher-end audience: kids (and adults) who actually read, instead of just allow the one-eyed babysitter to rule their lives. H.L. Mencken was right; but never forget that the purveyors of "entertainment" are also members of the American public.

Adults simply do not understand that children already understand a disturbing truth about the world: it is ambiguous. It is not hard, clean-edged cartoon-panel animation, but murky shades of greys and earthtones. The Harry Potter books have succeeded largely because actions and individuals are ambiguous. Children are smart enough to see this. Perhaps that explains why R.L. Stine's little empire collapsed, while Tom Clancy's continues to roll onward (onword?): The children aren't eating the plastic.

Warning: This is yet another overly theoretical post.

   Professor Solum posted a solid summary of the "veil of ignorance" problem yesterday at his Legal Theory Blog.

How do parties behind the veil of ignorance deliberate? For the most part, legal theorists will want to leave the deliberative processes relatively untouched. Huh? By that I mean that unlike Rawls, legal theorists do not need to specify that the parties pursue some particular goal (maximimizing their share of the primary goods) but can leave the parties with the interests they have before the veil descends. Rawls specified a particular decision rule for the parties—the maximin rule—which required the parties to maximize the share of the primary goods that would be held by the worst-off group. Again, legal theorists may not need this very strong assumption about how the parties deliberate.

(emphasis removed for clarity). The hidden inquiry here—one that underlies a lot of law and economics interpretations, and one that I have a great deal of difficulty ignoring—is "how does one measure maximum utility?" The maximin rule is useful only in choosing between results within the same boundary conditions. There is another condition, however, that is best illustrated in gambling and theories of military deterrence, that may or should enter into the rule: the greatest-negative-excursion rule. This turns on "what is the minimally acceptable worst result?" For those not willing to reject Luttwak—which requires reading Luttwak in the first place, a burden I would not wish upon most of my enemies, because his writing is somewhat dubious in its integrity—an example from blackjack might be helpful.

Gambler A has an initial stake of $2500. He is sitting at a $5000-limit table with a $250 minimum. In order to pay for his hotel room for the night, he must walk away from the table with a minimum of $250 at then end of a multihand session, and does not know before a given bet whether he may quit after the succeeding hand. What is the maximum bet that he can afford to place on a given hand?

The immediate impulse is to think that the maximum bet must be either (current stake-$250) or (current stake-(2*$250)). But that is not correct, because the length of the game is unpredictable. The maximum bet that he can make is the table minimum ($250), because in an unpredictable-length game, he must assume that he could enter a string of losing transactions without an allowable exit. So long as the player cannot predict that his exit point will allow him to leave with better than his minimally acceptable result, he must act to "not play" to the greatest extent possible—unless he truly is a gambler, and therefore not a "rational actor" in the economic sense. The most-probable result is not the issue here; the issue is survival. Thus, the social justification for the billions spent on nuclear deterrence: the result of "failed deterrence" was considered so awful that the actual cost of maintaining "deterrence" became an almost irrelevant consideration, mineshaft gaps and all.

   Life insurance premiums are another example, because they are merely a bet that the particular individual's circumstances make it more favorable to purchase a grossly overpriced protection against an unpredictable event. Statistically, if one assumes that the actuarial tables define each individual's final circumstances, one cannot justify paying for life insurance; the pricing set based on those tables results in a hefty profit for the insurer. The key, though, is that the exit point cannot be predicted, and the worst acceptable outcome requires a greater payoff at death than the prospective purchaser can guarantee from current funds.

   It is also directly relevant to the veil of ignorance problem. So long as maximum utility is measured as a collective function, whether the rule of decision is maximin or otherwise, the result is going to be different than if maximum utility includes a minimum acceptable excursion as a boundary condition, or if maximum utility is measured as a sum of individual results rather than a field equation. In more symbolic terms, the minimum-acceptable excursion condition states that a discontinuity (exceeding of the boundary condition) in a single instance from 0 to i results in an invalid summation. That must then plug back in to the share of primary goods that decisionmakers purportedly strive for—because the decisionmaker must assume, at some level, that he or she might end up on the "short end of the stick" and therefore must have some idea of just how short that stick can be and still be acceptable. In real legal theory—if that is not an oxymoron—this is often clearest when considering burdens of proof: the shortest acceptable stick is a lot shorter under a "preponderance of evidence" standard than under a "beyond a reasonable doubt" standard, let alone a "scientifically proven" or "morally certain" standard.

   All of which is a roundabout way of saying that an unrestricted English Rule (in Solum's description, choice 4) is not a valid solution if one accepts nontrivial legal fees as the minimum bet in the dispute-resolution game, because it cannot adequately account for the minimum acceptable excursion. This is related to copyright law, because under the Copyright Act there is a modified English Rule in effect (see Fogerty v. Fantasy, Inc. and a practical application of the rule in Ellison), and somewhat less so under the Lanham Act (trademark law) and Patent Act.

   I clearly need more caffeine this morning.

I think the following says more than enough.

But if my time on the Commission taught me one lesson, it was that I was approaching the question of capital punishment the wrong way. There will always be cases that cry out to me for ultimate punishment. That is not the true issue. The pivotal question instead is whether a system of justice can be constructed that reaches only the rare, right cases, without also occasionally condemning the innocent or the undeserving.

Scott Turow, Ultimate Punishment: A Lawyer's Reflections on Dealing With the Death Penalty (2003).

   To put it more baldly, and perhaps less favorably to the status quo (ok, so it wasn't more than enough): Constructing a judicial system that executes exactly the right people, with no mistakes (particularly "false positives"), may well be theoretically possible. But it is not a system in which most judges are elected, prosecutors are either themselves or supervised by elected officials or political appointees, jury duty is seen as something to evade, pretrial publicity—without even considering the First Amendment issues—taints jury pools, peremptory challenges to individual venirepersons are used to shape juries, defense attorneys are ill-funded and obstructed at every turn by the "tough on crime" mentality of law-enforcement officials everywhere, and nobody can agree upon (let alone really knows) the root causes of terminal violence. Although I think the substance of the explanation offered is wrong, Peter Gabriel's chilling portrait of the Kennedy Assassination ("Family Snapshot," from Peter Gabriel [3, "Melt"] should at least give one pause.

   I have perhaps been closer to this than most. As a professional manager of violence, I was daily in the position of potentially ordering people to their deaths. Too few of my colleagues ever asked themselves "why?" for me to be entirely comfortable. I do believe that some such orders would/could have been justified; consider, for example, ordering a UXB (unexploded ordnance) specialist in to attempt to disarm a stack of WWII-era bombs discovered next to a school. But it's not an easy question, and that's even with the force of law and special circumstances in the context.

More Hollywood Follies
An interesting article in today's Guardian (UK) concerns a struggle for creative control over a movie. The author of the source novel(s) is willing to accept substantially less money to ensure that the movie does not ridiculously misrepresent her work.

"What for me is most important, and what disturbs especially the Americans, is that I don't talk about money. I could do a bidding war, but I don't want to, because the only thing that interests me is creative control, and they don't like that.

"When I got the first suggestions for who would play my two main characters in Inkheart I really got scared. The three movies will depend on the two male characters. It makes you really nervous if they suddenly suggest actors who are completely different from the ones you imagine. You know about the power of the screen: as soon as it's on the screen, children will imagine those people and not the ones you imagine."

   Gee, what a unique concept: ask the author what would be faithful to the book. Almost without exception, the "bankable stars" rose to prominence on original scripts, not derivative properties. Does this mean that none of them are ever suitable for a derivative property? Of course not. But it does point something out that Hollywood does not seem to understand: that the draw for derivative properties is often the property, not the stars; and that the extra money spent on the most bankable stars would be better spent on other aspects of the production, or just plain in reducing the budget.

   Then, many authors do not know the positive best way to make films of their books. They tend to be pretty good, though, at knowing how not to do the job.

Finally back to defining authors, one can find a lot of other support for the idea that an author is a "natural person" scattered throughout the Copyright Act. The pitiful droit d'auteur in US law extends only to "authors" of visual works, who are referred to as "his or her" (§ 106A(a)). Revocation (termination) rights under § 203 and § 304 assume that authors are natural persons. The tricky bit appears in § 201(b):

In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

   This is a Congressional definition of a term used in the Constitution. The Intellectual Property Clause (Art. I, § 8, cl. 8) authorizes Congress to protect "authors and inventors." If one accepts "originalism" as the foundation for interpretation, the key question is this: Would the Founding Fathers have understood a corporation or other collective group to be an "author"? Unfortunately, I have not found any illumination in Madison's notes, nor in the Federalist or Antifederalist papers, that leads me to believe that they might have so believed. Even if one does not accept "originalism" as the foundation for interpretation, this redefinition of who the "author" is reminds one of a good knock-down battle being called "glory" by Humpty-Dumpty. To put the question more baldly: Does Congress have the power to redefine an otherwise nontechnical term to mean something substantially different, when that otherwise nontechnical term is in the Constitution and not just a statute?

   Can you tell that this is another pathetic cliffhanger?

It's Not Painless
Over at TalkLeft, Jeralyn Merritt remarks on soldier suicides in Iraq. During my military career, I spent close to a decade as a commanding officer; I had to deal with seven suicide attempts as the CO (fortunately, none were successful, so I must not have been that mean). One resulted from a drug-induced psychosis. There was a common thread to the other six: a perception of mistreatment by the faceless military personnel bureaucracy system.

   Under the so-called "modern" system, assignments to units don't last forever, and it doesn't take a disgruntled platoon sergeant to force a soldier's transfer elsewhere. Assignments are instead for between one year (certain "remote" assignments that do not allow family members, such as radar stations in northern Alaska; use your imagination) and five years (certain DC-based staff assignments), with an average of two to three years. Allegedly, everyone gets a lot of input into the system. Of course, certain bases and assignments are more popular than others. Just about everybody interested in England, for example, wanted RAF Upper Heyford (near Oxford) or RAF Lakenheath/Mildenhall (pretty close to Cambridge, and with the best facilities); RAF Bentwaters/Woodbridge (pretty close to Ipswich) was not nearly as popular, and RAF Alconbury (near Peterborough) was right out. Similarly, within the US, nobody really wanted Minot AFB, North Dakota ("Why not Minot? Freezin's the reason!"), but Tyndall AFB, Florida was a popular choice.

   Each service, of course, has its own method for actually allocating troops around, officer and enlisted. And they're all fucked up. They're all based on a planning staff's idea of what appropriate strength at each grade and each military specialty needs to be at a given location that is at least six years out of date by the time it even gets used, and never takes into account truly unique local conditions. For example, RAF Bentwaters/Woodbridge was seriously short on both Security Police and aircraft maintenance billets, because the idiots at AFMPC didn't consider the effect of having a major "black operations" unit on support requirements. This led to SP burnout and misbehavior and some potentially serious security breaches. Meanwhile, Alconbury always had a surplus of SP billets to actually do the mission, because the local terrain and compact layout enabled patrols to cover much more territory.

   Then there is the "matching" system for assignments. The different services, for different purposes, gave vastly different amounts of lip service to the idea of keeping military families together. Combine this with the fact that one had to choose an assignment without any knowledge of the personalities in the command structure, which rotated every two or three years anyway, and you have a recipe for disaster—even before considering deployment to combat zones.

   Knowing what I know about the personnel system, I am shocked that as few as 13 suicides have been identified among the "noncombat deaths" in Iraq. One would expect slightly over half that number in a civilian population that size in a comparable period, according to the statistical data I've seen. Just adding the stress of combat-zone conditions and the military lifestyle more than accounts for the rest. Add in the constant misleading of troops by the national command authority regarding their mission and tour of duty… and consider the effect on family members back at base… and one gets a very ugly picture. One that reflects very poorly on a whole bunch of senior people.

Yet Another Interlude
I hate arrogant lawyers. (Yeah, so I'm a lawyer, and sometimes I'm arrogant. So sue me.)

   I especially hate arrogant lawyers who try to turn their personal disagreements with former associates into lawsuits. Most especially of all, when the grounds for the suit are directly barred by both the Rules of Professional Conduct and an on-point state Supreme Court opinion. In fact, it would be hard to find an opinion closer to being "on all fours" with the facts in this matter outside of a first-year law school hypothetical. This matter, however, is not a law-school hypothetical. It is instead an excellent opportunity to demonstrate Illinois's relatively harsh enforcement of Rule 8.4 (the "must rat on your buddy" rule). I will, of course, fulfill my ethical responsibilities under that rule.

   Fortunately, I get to be an unforgiving SOB on this one. I have been hauled into it precisely because I have no litigation practice in the local courts. Thus, I don't have to be nice to potential cocounsel. Or even the judge (well, respectful, but not nice).

   As a hint to all new lawyers (and prospective lawyers, and even—as in this case—lawyers who have been practicing for years): If you're going to apply for equitable relief, don't present a proposed order that exceeds the statutory limits for that kind of relief. In three respects. In an ex parte hearing. Maybe you'll get away with it. Maybe, though, you'll run into a second-career lawyer whose first career was the management of violence. Like me. (This is just the tip of the iceberg in this matter; the rest will be revealed in due course in the pleadings.)

   Yes, as a matter of fact I am pissed off. Not at my client, who did some things differently than I would have, but by no means incorrectly. But at the profession, because my state has no CLE requirement, let alone one in ethics. Sure, the Bar stood up to the abhorrent Matthew Hale. But that is not the only kind of sleazebag who brings shame and disgrace on the profession for generations to come.

I don't think I'm going to get enough caffeine today. So, although it's perhaps a bit early for law school exam questions, I couldn't resist this one:

[T]he federal judiciary, from the Supreme Court itself down to the federal district court in Guam, may, and indeed must, treat Congress the way courts would treat an administrative agency, whose work will be set aside on appeal if the court finds the record made by the agency not substantial enough to justify the agency's rulings. Rigorous in itself, this criterion has been made more rigorous by the Supreme Court's dismissal of what it has styled "anecdotal evidence," with the implication that stories testifed to by witnesses before congressional committees are not enough to justify legislation. In this way an act of Congress is subjected to stringent judicial scrutiny to determine the nationwide extent of the evil against which the act is directed. In contrast, the Supreme Court's own announcement of constitutional law, binding on the whole country, is based on the record compiled in a single case.

Hon. John T. Noonan, Jr., Narrowing the Nation's Power: The Supreme Court Sides With the States (2002).

   Discuss (25%). Since this is an intellectual property blawg, your answer should consider both College Savings Bank and Arte Publico Press. Suggested time: 45 minutes.

Caffeine Deficiency

Lots to comment on this morning before getting back to the thread I started yesterday, which won't happen until blood caffeine levels have risen to 0.10%:

   
• Randy Barnett questions the distinction between peer-reviewed and student-edited law journals, particularly the snide remarks by some academics that peer-reviewed journals are always "better." This should sound remarkably like awards ceremonies in the arts, such as D.J. Taylor's description of judging the Booker Prize. Not to completely defend the excesses of the law reviews, one paragraph in Taylor's article resonates strongly with the general stance of the legal profession:

  There were the columnists who accused the judging panel… of being elitist, and there were the columnists who accused us of not being elitist enough. There was the novelist who begged us in the most manly and responsible fashion to select for our shortlist the kind of books people "wanted to read"—as opposed, presumably, to the kind of books that we the judges wanted to read. There was the character in Tribune who diagnosed a capitalist plot, hatched under the auspices of the "faceless" Man Group by a cabal of literary insiders with the deliberate aim of excluding anything of merit. And finally there were those innocent journalists, bidden to write Booker pieces by their harassed editors, who in other circumstances would clearly not have been able to identify a novel had it fallen on their heads from a great height.

  Perhaps my own prejudices for law review articles were formed by the highly unusual selecting board for my year as an Articles Editor: not one of the four of us was a snot-nosed kid just out of undergraduate work attending law school on daddy's dime. Two of us were well into our thirties, and about to become second-career lawyers. All of us had substantial graduate study before law school. Three of us had extensive scientific and technological backgrounds, which led us to reject a number of "fashionable" articles from "name professors" on intellectual property that made little sense. None of us had a business degree, which led to a great deal of skepticism about purely economic explanations for anything. And so on. It wasn't perfect; we had our disagreements; we made one mistake (we published one piece out of sixteen that, in retrospect, we should not have published); but I'll put the quality of material we published that year up against any of the peer-reviewed journals.

   
• For a few giggles, Robert McCrum of The Observer (UK) has put together, presumably with some uncredited help from flunkiesresearch assistants, a list of "The 100 Greatest Novels of All Time". Leaving aside for the moment the language problems—less than one in six were not written in English—the list reflects a rather peculiar blindness toward irony and satire once one gets past the first work on the list. More tellingly, with only three exceptions every single work listed is in the "mainstream" of its day, and one of those three (1984) partly created a new mainstream by itself.
   
• Today's Washington Post comments on a kind of gerrymandering that falls beneath public notice, precisely because the Supreme Court has stated that political gerrymandering is ok (it's just racial gerrymandering that's suspect). Given that I do not accept the so-called "political question doctrine" as anything more than sheer sophistry—law is merely a somewhat limited form of politics—my amusement at this controversy should not be surprising.
   
• It appears that law firms have finally gotten around to blaming each other, instead of each other's clients, for some recent nastiness in patent litigation. Gee. What a surprise. Yet another way to put the blame on someone other than one's self. I have two words for the members of the law firms in question: Grow up. You are supposed to be members of a profession, not combatants at recess during fourth grade. Or, perhaps, is the public right about the legal profession—that there are only three lawyer jokes, because the rest are all true?
   
• Today's Washington Post also notes that the Infternal Revenue Service is starting to scrutinize "non-profit" credit counseling services. This is only about eight years after my then-firm filed a lawsuit making similar allegations. I suppose an eight-year lag isn't too bad. It's only 20% of the average working lifetime.

   Much of my other ire will have to wait for more caffeine.

Interlude

One of the (many) things that pisses me off about the so-called "writer's magazines" is their tendency to provide incomplete or outright incorrect answers to leading questions on legal issues affecting writers. The Cincinnati Behemoth's columnist recently answered a question concerning a novel whose title derived from the last line of a Lord Byron poem. I cannot entirely blame the lawyer who wrote the answer for this; the editorial policies and all too often incompetence at these magazines quite possibly mangled the answer. But the answer provided is wrong.

   First of all, the initial consideration should have been "is copyright the appropriate theory?" It is the only legal theory considered in the answer. However, we're dealing with a title here; and one of the first principles of copyright law is that titles are not copyrightable (and the case law basically says the converse). Instead, the answer should have at least touched on the possibility of trademark infringement or unfair competition.

   Second, assuming arguendo that copyright is the most relevant legal theory (or even a relevant legal theory), the columnist failed to note that the amount taken is a critical factor in copyright actions. The question posed states that the title is a single line of a poem, and that line does not include either the title of the poem or a proper name. I have found no reported or unreported case in which that amount of copying—even of recent material that was clearly in copyright—was found to be an infringement.

   Third, the columnist mixes her copyright-term definitions. She correctly notes that, since Lord Byron died in 1824, a work published in his lifetime is in the public domain in the US. (The columnist cannot be blamed for editorial ineptitude here in creating a minor misstatement.) However, in the very next sentence she jumps from the "measured by lifetime-plus-years" system to the "95 years after first publication" system (that in any event could not apply in this context because first publication of Byron's poetry was not in the US) without any explanation.

   That the columnist came to the correct conclusion—the stated use does not created a copyright problem—does not excuse the incorrect and misleading analysis. The whole point of a column of this nature is to enable authors to at least ask the right questions concerning their own works. This one did neither.

What is an author? A name by any other legal definition…

The Copyright Act is remarkably obtuse in defining terms. For example, "published" is defined only as to phonorecordings, despite being used 117 times in other contexts. Most critical definitions are in § 101 of the Copyright Act; good writing practices would put all definitions in one place, except those few definitions that are unique to a subsection. Good writing practices being far more than we can reasonably expect from our elected representatives, we are stuck with trying to define "author" by negative inference. At various places in § 101, we find these definitions (all boldface emphasis added):

A "joint work" is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.

A work is "fixed" in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.

An "anonymous work" is a work on the copies or phonorecords of which no natural person is identified as author.

A "compilation" is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term "compilation" includes collective works.

A "pseudonymous work" is a work on the copies or phonorecords of which the author is identified under a fictitious name.

[A] work is a "United States work" only if…
in the case of an unpublished work, all the authors of the work are nationals, domiciliaries, or habitual residents of the United States, or, in the case of an unpublished audiovisual work, all the authors are legal entities with headquarters in the United States

The author's ''widow'' or ''widower'' is the author's surviving spouse under the law of the author's domicile at the time of his or her death, whether or not the spouse has later remarried.

Most, and arguably all, of these imply that an "author" is what the law calls a "natural person"—that is, not a business organization, which I suppose makes corporations "unnatural persons" (which certainly fits with the Latin origin of the word). Of course, there is a significant exception; an exception perhaps so significant in terms of actual creation of copyrightable works that it may swallow the whole. Those familiar with the Act and its Byzantine structure (however unfair that comparison may be to the government of Byzantium) will note that I have omitted one critical definition from this list. My excuse is that it does not use the word "author" in it. (Really pathetic what I will try to create suspense, isn't it?)

"Three day weekends" were not invented by parents. And I can't even get any yardwork out of slave boy!

One of the interesting issues in governance—whether of corporations, of media conglomerates, or elected and appointed government officials—is their compensation. Once upon a time, when I was a lieutenant (that's a looooong time ago), a reputable survey organization put out a study comparing total military officer compensation with total compensation for a variety of equivalent jobs in industry. The survey was smart enough not to just say "major = department head," but described the kinds of duties. My sarcastic remark (which caused painful levity from my boss, a lieutenant colonel on the colonel's list) was that I took a 60% pay cut for the privilege of having my ass shot at.

   Of course, those who go into government with the idea of "getting rich"—like it or not, a military officer is "in government"—are not exactly in the mainstream. The comparison to the private sector, however, is rather distressing, particularly when comparing what a federal judge makes to an associate counsel at a Fortune-1000 corporation. Part of this is the "experience phenomenon"—that you can't do the job until you've already proven that you can do the job. Not only does this artificially restrict the market of available executives (or executive-level government workers), but it forces all of those workers into the same mold.

   Professor Bainbridge is correct that making excessive executive compensation illegal, as it is in Germany (and Austria, if I am reading the statute correctly), is not a valid solution. Instead, we'll end up with interlocking directorates that make zaibatsu look positively open and clear, as executives take nominal, but heavily compensated, "consulting" jobs with related/friendly companies. As a modest proposal (in the Swiftian sense), however, we could continue to misuse the tax system for achieving nonrevenue objectives, by establishing a Heath/Wilson tax bracket above a certain relationship to the top government compensation. If, for example, we determine that the President's total compensation is $1 million (considering his salary, housing, and other in-kind compensation), and that a fair "pay enhancement" for private industy is four times that amount, we would impose a very high (80% or so) tax rate on marginal income about $4 million.

   The hidden agenda here is that executives will want to keep increasing their pay without throwing it all back at the government. The solution is simple: raise the government pay base. If the President's total compensation rises to $2 million, using the same calculation means that executive pay can be up to $8 million without falling into the top bracket. With the President's pay that much higher, there is now sufficient room to increase judicial, Congressional, and senior executive branch pay without remark—especially if the baseline is not the President's compensation alone, but some averaging of the top three pay rates in each branch of government.

   Like I said, this is a Swiftian proposal. I do not actually believe that private-industry figures deserve exhorbitant compensation merely because they play with money instead of with lives. However, executives can still brag about their $35 million pay packages; it's just that a hefty portion of that bracket goes back to compensate for the corporate welfare they're getting.

I skipped yesterday compressing the day before judging the ABA Negotiation Competition over at the law school. This year's problem involved college athletic-department compliance—the usual payoffs, academic fraud, asshole coach, etc. What I found a little bit disturbing was the imbalance between the two sides. In the "real world," there often is an imbalance; but this was supposed to be a training exercise, open to 1Ls. In training where both sides may well be complete novices, the training opportunities are maximized by giving both sides substantial strengths and substantial weaknesses. Further, the very nature of this kind of dispute does not lend itself to single-session negotiation and compromise; more typically, self-reported infractions take 8–10 weeks to reach a resolution.

   Nonetheless, the students did pretty well in most respects. Nobody turned into a hard-ass macho idiot unwilling to compromise on anything after drawing a line in the sand. However, there was one problem that four of the six teams I observed had that was preventable: failure to (internally) state a clear objective. This is not just a management issue; it is a classic problem in military strategy—which, as a career military officer before I became a lawyer and student of history for longer than that, influences my thinking extensively. The linkage is not very subtle; warfare is the high-spectrum means for resolving disputes between states, while law is the low-spectrum means for resolving disputes between individuals and organizations that are not states. I have even used the "spectrum of conflict" in teaching ROTC cadets the relationships among different parts of the disciplinary system, because the spectrum of conflict was something that they already understood—and, the deeper I look into it, the better the analogy becomes.

   A hint for negotiators, whether in "competitions" or the real world: Walk in with a clear, comprehensive list of your client's "worst case" acceptable position for every element that might come up in the negotiation. As you reach an agreement (or agree to disagree) on an element, annotate that right on the list. Take the time to review your list before any time constraint (artificial or real) ends negotiations to ensure that you have at least discussed every element, except in the rare case that it is in your client's best interest for negotiations to be silent on that element. The two teams that appear to have done this stood head and shoulders above the other four last night.

In a typically thoughtful post, Ernie the Attorney proposes that we tree-killers (litigators) need to establish uniform rules for electronic filing. Personally, I'd love it, if the rules could be made to work. In particular, I'd love not having to retype a complaint or counterclaim in order to respond to it; not having to retype opponents' discovery requests in order to respond to them; and, perhaps most important, having a better shot at getting accurate quotations.

   One huge hole in these rules as proposed, though, concerns filings partially or completely under seal. It is not reasonable to expect clerks' offices and staffs to catch every possible improper crossreference to sealed electronic materials. <SARCASM> Neither is it reasonable to expect counsel to do so without being overinclusive, either. </SARCASM> In some complex litigation, there is a lot of sealed material. For example, in Ellison, about 75% of the discovery materials have been designated as "confidential," and therefore can be used only under seal. This proved a minor headache when preparing the appellate materials; we had to go so far as citing to the District Court's thoughtful, if not quite correct (in our eyes), opinion for the statement of facts to avoid citing to sealed documents. That is certainly not normal for the appellant!

   Another huge hole concerns proprietary formats. I favor use of Rich Text Format, which is the best cross-platform editable file format that maintains paper-formatting features. Admittedly, it's a poor "best," but it's certainly better than, say, some version of Word; it also has the added bonus that converting to RTF destroys almost all potentially harmful macros that may be embedded in a document (like the one I caught coming in about two years ago from a Very Large Law Firm whose IT department was not on the ball). PDF is great for "finished documents," but makes quotation from them rather difficult.

   I'll just be happy to kill fewer trees.

Another doh! copyright decision that somehow comes as a surprise to the infringer—an infringer that should bloody well know better. Today's Baltimore Sun (H.L. Mencken's once-upon-a-time haunt) carries an announcement of the jury's verdict in the Legg-Mason interoffice copying scandal. After American Geophysical Union and Michigan Document Services, Legg-Mason really should not be surprised.

   What happened is something like this, according to the jury's findings: Legg-Mason, a major brokerage and mutual fund company, subscribed to a single copy of a stock research newsletter from Lowry's Reports. Using its internal e-mail system, Legg-Mason systematically copied the newsletter to around 1300 of its employees. As bad as this sounds, it gets worse: Legg-Mason received and acknowledged a cease-and-desist letter from Lowry's, but nonetheless continued the practice.

   Not too surprisingly, the jury found this conduct willful, and smacked Legg-Mason with $50,000 per infringed newsletter before the C&D letter, and $100,000 per each infringed newsletter thereafter. (The jury could have assessed $150,000 per infringed newsletter once it found willful infringement.)

   This is a no-brainer. That's a pretty good description of the kind of counsel Legg-Mason got, if it got any at all, regarding this practice. In American Geophysical Union v. Texaco, 60 F.3d 913 (2d Cir. 1994), and Princeton University Press v. Michigan Document Svcs., 99 F.3d 1381 (6th Cir. 1996) (en banc), the courts made it pretty clear that wholesale redistribution—even for academic purposes, as alleged in Michigan Document Services—of copyrighted material is an infringement unless specifically licensed. However, since neither of those opinions comes from the Fourth Circuit (which includes Maryland), attorneys whose practice does not focus on copyright very well might not be familiar with them. (Giving advice in an area in which one is not qualified is a no-brainer of a different kind, and usually requires notifying one's malpractice carrier.) Or, of course, management might well have decided that whatever advice it got from counsel did not require it to conform to pretty obvious law.

   There are so many bits of irony in here that I don't know where to begin… except, perhaps, to note that Legg-Mason itself puts out copyrighted market research materials…

What is it about lighting fixtures that makes them such popular subjects for intellectual property litigation? First, we had Sears Roebuck & Co. v. Stiffel Co., 376 U.S. 225 (1964), holding that the copying of an unpatented/unpatentable lamp is not barred by state unfair competition law, except perhaps as to designation of origin and labelling. Today, the Ninth Circuit decided another IP case involving lamp designs. In Lamps Plus, Inc., v. Dolan, 2003 USCA(9) 14785 (Oct. 6, 2003) (PDF 71kb), the court threw out an attempted copyright on a lamp design as invalid. The copyright failed because the lamp was not copyrightable in the first place.

   The copyright application did not disclose that the lamp consisted of four preexisting parts from other manufacturers cobbled together with "utilitarian" hardware. Although the defendants invited the court to rule that this failure alone invalidated the copyright, the court refused. A closer look at the substance of the object, though, disclosed to the court that

Lamps Plus’s mechanical combination of four preexisting ceiling-lamp elements with a preexisting table-lamp base did not result in the expression of an original work of authorship as required by § 101. Lamps Plus did not create any of the “design… features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects” of any of the lamp’s component parts.

Lamps Plus at 14800–01. More interestingly, the court went on to require the case to go back to the trial court to determine whether to award attorney's fees to the defendant. Under the governing cases, faithfulness to the purposes of the copyright act is an important factor. The trial judge found for the defendants on a factual ground (that the defendant's lamp was not sufficiently similar to the "copyrighted" lamp). Since the ground now is that no copyright ever existed in the first place, the trial judge is going to have to revisit the fees issue.

   Moral: Don't apply for a copyright without ensuring that what you have is eligible for copyright in the first place, and make sure that you fill out the forms completely, truthfully, and correctly. Had the forms been filled out properly in the first place, disclosing the compilation, this litigation would either never have occurred (if the copyright was refused) or would have terminated much more quickly and cheaply for everyone.

Tomorrow, registered voters in California (who probably do not outnumber registered voters in Chicago—Chicago has a lot more graveyards) can demonstrate to the rest of the country that its opinion of California is correct. "Governor [Ben] Richards," anyone? "Governor Terminator" is just too obvious, and "Governor Conan" treads a little bit too close to the various accusations that have been made concerning Ahnold's conduct.

   Sorry, Ahnold, but I still have ethical qualms about someone who ostentatiously continued to smoke cigars while chairman of the President's Council on Physical Fitness. You didn't even claim you were trying to quit…

Just a quick note on the links section:

   Mr. Doctorow e-mailed me last night wondering why I had characterized BoingBoing as "hostile to copyright." Perhaps I was going too far into the past, when BoingBoing did include some pretty hostile remarks on copyright as a whole. Further review and reflection, though, makes me think that it is more accurate to say the BoingBoing (and CopyFight) are hostile to current copyright enforcement efforts than to copyright as a whole. Thus, the change. I still think it was accurate originally; but Mr. Doctorow's comment made me realize that there is a better way to characterize BoingBoing today.

   See? Occasionally I do listen.

The Index
Fair use and the Internet frequently clash. One common practice on the web—one that I engage in, for reasons that will become apparent—is so-called "deep linking." By linking directly to material that is not on a website's front page, one enables a reader to jump directly to the content he or she is interested in. Some content providers really, really don't like this. The purported excuse is that it keeps readers from seeing the oh-so-valuable advertisements that some of these sites are convinced provide their ultimate revenue stream. (They don't, but that is for another time.) The purported rationale is that deep-linking creates a derivative work, and thus cannot be fair use. The Online Journalism Review has gone so far as to print a seven-page article on its website. However, the whole argument misses the point.

   Instead, the problem is not with creation of unauthorized indices or copies. It is the difficult distinction among direct, contributory, and vicarious infringement. If I copied an entire article verbatim from the Los Angeles Times, or linked to the article inside a frame that made the article appear as if it was on my own site, I would be directly infringing the article. (We'll leave aside fair use for the moment, since it is a defense that becomes relevant only after one finds an infringement.) The copy on my website, or that I feed to the user through the frame, is a direct infringement because I, the website operator, have made the copy. If I limit my activities to, say, a centralized index of authorized MP3s, I have not directly infringed the copyright (at least not if I have not downloaded all of them myself!). I have, however, contributorily infringed the copyright, "[L]iability exists if the defendant engages in personal conduct that encourages or assists the infringement." A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1019 (2001). A contributory infringer must also know of the infringements that take place using his or her system. Id. at 1020. Where knowledge is absent, though, one might still be liable for vicarious infringement when "a defendant 'has the right and ability to supervise the infringing activity and also has a direct financial interest in such activities.'" Id. at 1022.

   So, then, what is deep linking? There remains one key issue, and to my mind it is a critical one. Individual MP3s are individual, stand-alone copyrighted works. A link to such a file, when used, creates a complete copy. A deep link, however, may not. The deep link may be to, say, a sidebar within an article; it may be to quotations from a government document; it may be to any number of things. Functionally, though, deep-linking is just an instantaneous index. So long as deep linking does not retrieve a stand-alone copyrighted work, it is merely a technological advance on the card catalog, or the Reader's Guide to Periodical Literature. It must instead be analyzed under the (rewritten) Sony standard—whether the particular instance of deep linking has a substantial defensible use. (The language in the case law is "noninfringing," but that is not entirely accurate; fair use, for example, is a defense relevant only after finding a prima facie case for infringement.)

   With few exceptions, the purpose of deep linking is to enable commentary on the linked material. That was my purpose in, for example, linking to the OJR article in the first paragraph. This is functionally no different than if I had provided a search that would pull up the article, or mentioned it in footnote 217 of a law review article on fair use. This question really isn't even a close one. So long as the pointer is to an authorized source, deep linking is nothing more than a hyperefficient index. If the pointer is to infringing material, though, it is at minimum vicarious infringement.

Computer Viruses Don't Harm Computers…
Careless users do. Over at Denise Howell's always-entertaining Bag & Baggage blawg, she makes the following priceless observation:

Craig posits a defense [to a lawsuit accusing Microsoft of unfair business practices for failing to secure its software against viruses] that would liken software to firearms, which is both insightful and, in my twisted little brain, funny. (I can just see the t-shirt: Windows Doesn't Kill People, 2600 K1Ll5 p30PlE.)

California's Legal Swiss Army Knife Sprouts A New Blade, Takes A Swipe At Microsoft (03 Oct 03) (link omitted). This, combined with a not-entirely unexpected item from Kelly Talcott's Infringing Actions noting that (gasp! shock! horror!) some P2P software contains malware—bringing to mind the aphorism concerning honor among thieves—actually highlights a problem with binary logic more than anything else.

   Our legal system has only two verdicts: guilty or not guilty (or, on the civil side, liable or not liable). As any prosecutor, plaintiff's attorney, or investigator knows, this makes dealing with instances of shared responsibility especially difficult. By its nature, the legal system reduces a complex web of interrelationships to the single question of whether one particular set of actors in those interrelationships is responsible for the harms that have befallen another. The "guns don't kill people, people kill people" argument advanced by the gun industry is an excellent example. Under that reasoning, the fact that a tool has a conceivable legitimate use means that the toolmaker is completely absolved of responsibility for misuses. Cf. Sony v. Universal Pictures, 464 U.S. 417 (1984) (because VCRs may be used for the fair-use activity of "time shifting" TV programs, they are not unlawful devices that inherently infringe copyright).

   Consider, however, the instance of the "Saturday Night Special." Sure, someone could buy a Saturday Night Special with the avowed purpose of legal target shooting. (Whether a trained rangemaster would even allow such a nutcase onto a target range is beside the point under this argument.) Wink wink nudge nudge. It is undeniable, however, that the principle—and perhaps only conceivable—purpose of the Saturday Night Special was the unlawful killing of people. Self-defense is a justification that prevents or mitigates assignment of blame; it does not make the killing itself lawful. Conversely, however, a trained combat firearms instructor will laugh at someone who shows up for combat training carrying a brand-spanking-new shotgun loaded with birdshot; in theory, and perhaps sometimes even in practice, such a weapon could be used to kill people, but it is optimized for killing pheasants. The gun industry seizes upon the latter weapon, arguing that its characteristics swallow the characteristics of firearms that are optimized for killing people; gun prohibitionists do the reverse.

   This is exactly what chapter 12 of the Copyright Act does with "copyright circumvention devices." Frankly, this part of the DMCA is largely indefensible. Cf. Bernstein v. Dept. of Justice, aff'd en banc. Under the reasoning of Sony, since DeCSS does have the lawful use of allowing consumers to play DVDs on Linux machines—which, unlike Windows and Macintosh machines, ordinarily do not have drivers available to play CSS-encrypted disks—reinforced by the reasoning in Bernstein as to publishing specifications for cryptosystems, this part of the DMCA cannot stand. What the courts have instead done is rewrite Sony, which admittedly is an extremely poorly written and obtuse opinion, to require that a device or system have not just any, but some significant lawful purpose. This explains why Napster could, in the face of Sony and Bernstein, hold that Napster's system was unlawful. Although there was a legitimate use offered—recipe sharing—the evidence established that Napster was overwhelmingly used for an unlawful purpose.

   Perhaps, then, what this all means is that "software doesn't infringe copyrights; copynorms infringe copyrights." Or perhaps it is just a monument to the difficulties with inductive reasoning and unconsidered cases.

Proving once again that Orwell was right—the decision to remove politics from writing is itself a political decision—E.J. Dionne, Jr., remarks on Rush Limbaugh's forced departure from ESPN's football team in this morning's Washington Post. Dionne's obtuseness becomes clear in the following passage (mock paragraphing removed for clarity):

Most of us who love sports want to forget about politics when we watch games. Sports, like so many other voluntary activities, creates connections across political lines. All Americans who are rooting for the Red Sox in the playoffs are my friends this month, no matter what their ideology. Politicizing everything from literature to music to painting and sports was once a habit of the left. The Communist Party's now-defunct newspaper once had a sports column called "Out in Left Field." Now, it's the turn of the right to politicize everything. Limbaugh simply could not resist using a black quarterback as a vehicle to criticize "social concern"—I guess he thinks "social concern" is just an awful thing—and make a racial point. Imagine the grief a liberal sports commentator would rightly get for saying that because of his race or his politics, a white conservative Republican quarterback "got a lot of credit for the performance of this team that he didn't deserve."

<SnideAside> I will note only in passing the inconsistent treatment of "sports" as sometimes singular, sometimes plural, and concentrate on substance. For good reason, academics who write about sport history use the term "sport" as the generic. </SnideAside>

   Dionne's error is in assuming that sport is not already politically meaningful, whether through participation, through commentary, or through mere fandom, before the ideologues get ahold of it. Looking just at commentary for a moment, I have a challenge for you: name a prominent basketball commentator who personally experienced the hoped-for "rise from the ghetto" without having played either in the NBA or as a scholarship athlete at one of the major college programs. Then look at the backgrounds of prominent basketball commentators. Very, very few of them fall below "upper lower middle." The less said about golf (which technically is a game, not a sport) and tennis, the better.

   Organized sport requires two essential commodities: time and competition. Children of the unemployed have lots of both, as do children of Veblen's "leisure class." Commentating on organized sport has the same prerequisites, on the part of both the commentator and the commentator's audience. Sport itself can hardly avoid politics when it tries, let alone when it does not. Hiring Rush Limbaugh is a clear example of not even trying. But then, follow the money and that should not surprise anyone (rhetorical question: who owns ESPN?).

Judicial Activism and Intellectual Property
Is that a sufficiently academic and off-putting title? I hope so; I suppose I could do better, but I would probably end up with something like "A Modest Proposal for Preventing the Poor Artists of America From Being a Burden to Their Parents or Country; and for Making Them Beneficial to the Public."

   There is an interesting colloquium over at Commentary's website querying a number of relatively prominent thinkers—skewed a bit toward the right, but given Commentary's own bias that is no surprise—on the general question of judicial activism. Or, at least, purporting to be on the general question of judicial activism; the questions asked are rather outcome-determinative:

1. Have recent rulings by the Supreme Court subverted fundamental elements of our constitutional order? If so, exactly how grave is the situation, and is responsibility to be laid equally at the feet of liberal and conservative Justices?
2. Controversial court decisions have been rationalized by appeals to an “emerging” democratic consensus or (as in Lawrence) to human-rights norms elsewhere in the world. Is there any legitimacy to this development? In deciding constitutional questions, are there circumstances in which the Supreme Court is justified in reaching beyond its own precedents and the Constitution itself?
3. Do you see any merit in proposals to limit the power of the Court? More broadly, what (if anything) should be done to contain or roll back the imperial judiciary?

As any good scientist knows, the question asked often determines the answer. The unasked question—one that Alan Dershowitz sidled up to in his answer but nonetheless evaded—is deceptively simple.

Should American government attempt to create a homogeneous society, and what mechanisms may it legitimately use to accomplish its aim?

This question has its own assumptions; for example, it assumes that American society is not now homogeneous. Although I think the answer to that is pretty clear, I cannot deny that it underlies the question posed.

   One can argue that the Intellectual Property Clause (Article I, § 8, cl. 8) points the way. It authorizes Congress to enact legislation

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries[.]

One assumption necessary to accept this as a valid aim is that progress of science and useful arts is best assured by maximizing the creation of writings and discoveries. However, there is no orthodoxy test, or "must be considered valuable by rigorous peer review" requirement; maximizing total volume, and hence diversity, is the goal. This is consistent with the First Amendment's broad scope.

   The next link is a little bit harder, and proceeds from an unprovable postulate. I firmly believe that diversity of ideas (whether writings, discoveries, or something else) depends upon diversity of underlying subcultures. Consider, for example, a relatively narrow subarea in music: nineteenth-century romanticism. (The operative word is "relatively.") Chopin's mazurkas and other dance music are intensely grounded in Polish folk tradition. Liszt borrowed Hungarian and Romanian folk tradition, in both rhapsodies and other works. Wagner… well, better left unsaid. And so on. The richness of the music of nineteenth-century romanticism (aside: yes, that is an awkward phrase, but it avoids "romantic"—a term that has been so grievously misused that I avoid it entirely) comes directly from its diversity. Even those unschooled in classical music can quickly distinguish among works by Chopin, Liszt, and Wagner.

   If one accepts that link, then the corollary becomes a bit clearer: that government must act to protect diversity, and therefore may not act to create a homogeneous society. The role of the courts within this conception then becomes much closer to John Hart Ely's "countermajoritarian principle"—that the role of the courts is to protect disempowered minorities from excesses perpetrated by empowered majorities, while still allowing empowered majorities to govern effectively—than to measurement of "judicial activism" or "judicial restraint." There will be times, such as the civil rights movement of the 1940s through 1970s, when a court must take steps that look "activist" in order to achieve this goal. Similarly, there will be times when a court must take steps that look "restrained" to achieve this goal, such as protection of a right established through judicial interpretation or other nonelective means against encroachment by an empowered majority; Lawrence v. Texas is an example of this function. (I think Lawrence was correctly decided, but the point is that "gay rights" have become established by means other than election of representatives who form an empowered majority, not the correctness of the decision.)

   This is not to say that I accept Posner's so-called "pragmatism" as a justification, either. Instead, the courts must be prepared to be unpopular, because their role is to act as a counterweight against de Tocqueville's aptly named "tyranny of the majority." At least in our conception of government they are. "Pragmatism" too often boils down to "the greatest good for the greatest number," which is precisely the opposite.

   One more step, and we are back to intellectual property again. A silenced, but otherwise protected, disempowered minority will remain a silenced, but otherwise protected, disempowered minority. Throughout human history, the arts have led politics; sometimes by years, sometimes by centuries. Even when contemporaneous, the arts are a necessary means of political communication. The dangers of nonideological totalitarianism, for example, did not become widely known to Americans until 1984 was published. Thus, a court system willing to be activist or restrained, as required by the facts in the dispute before it, is the best protection for societal diversity.

   I encourage those who believe that societal diversity is not a positive value to learn about Malthus and the concept of the "ecological niche." Or they, too, may well go the way of the dinosaur—which proved unable to adapt to changing environmental conditions not of their own creation. (Some creationists may hold that there never were any dinosaurs; if that includes you, just look at the carrier pigeon.) The one constant in the universe is change. Unless change becomes utterly predictable, diversity is the best way to ensure that at least part of a population survives change.