31 December 2003

Another Brick in the Wall???
At Slate today, Stewart Baker (former general counsel to the NSA, so he should in theory know something about what he's talking about) properly notes that there were structural reasons that impeded (not necessarily, as he implies, prevented) the apprehension of two or more of the 9/11 terrorists.

The country and its leaders have had more than two years to consider the failures of August 2001 and what should be done. In that time, libertarian Republicans have joined with civil- liberties Democrats to teach the law enforcement and intelligence communities the lesson that FBI headquarters taught its hamstrung New York agent: You won't lose your job for failing to protect Americans, but you will if you run afoul of the privacy lobby. So the effort to build information technology tools to find terrorists has stalled. Worse, the wall is back; doubts about legal authority are denying CIA analysts access to law enforcement information in our new Terrorist Threat Integration Center. Bit by bit we are recreating the political and legal climate of August 2001.

"Wall Nuts." With all due respect, Mr. Baker, you've identified the wrong problem.

[Carefully speaking around the restrictions in my NDA…] The difficulty is not with walls inside the FBI. The difficulty is that the culture of the FBI is simply not adaptable to preventive measures. The FBI is pretty good at dealing with matters after the fact—that is, catching criminals after the crimes have occurred. But its training, its leadership, its culture, and its capabilities are simply not appropriate to preventing serious actions, whether petty crimes or terrorism.

Unlike every other Western democracy, the US has no nonblack agency that is staffed with intelligence personnel that is also allowed (and indeed encouraged) to run domestic operations. (Aside: This is one of the most outlandish inventions of Fox's 24.) The problem is not the wall between criminal and counterintelligence investigations. The problem is that we don't have both an MI5 and an MI6. The CIA, the NSA, and the DIA are all chartered for foreign operations only. The wall is necessary precisely because when they do have information relevant to work inside the US, they have the mirror image of the FBI's problem: they have little or no training, culture, or capability to work within the civil rights accorded within the US.

To put it another way, the problem is not that the information didn't get to the right people; it's that we don't have the right people. Our structure omits an agency to handle domestic counterterrorism that does not report principally to a law enforcement agency, and then to the Attorney General. This is the wrong command structure; and, if nothing else, the problems at Desert One and in Grenada and in the Beirut barracks should act as obvious, harsh, unclassified lessons in the consequences of improper command structures.

My gut instinct is that Mr. Baker might have liked to comment on this issue, but that his NDA is even more restrictive in that aspect than is mine. If one looks at his rhetoric, he carefully does not say that the wall must be torn down within the FBI. The irony is that a separate agency would actually be easier to control and train in terms of respect for civil liberties—the fact that it might fill the same role as the Okhrana (the Czar's secret police) does not mean that it must behave the same way.

30 December 2003

The Return of the Historian
I'm afraid that I'm more of a history geek, particularly about military history, than is Professor Bainbridge. For the moment, leave aside that the strategy and tactics of The Lord of the Rings (book or Jackson's film, for different reasons) reflect considerable ignorance of what it takes to actually support a warfighting force, even for a short campaign. For example, if one does the math, based upon preindustrial North European agricultural productivity, and allows for the losses at Helm's Deep, Rohan's population must have been somewhere between that of England and France in the 12th century to send forth 6,000 mounted warriors with hope for more who didn't show—and neither the books nor the films support that great a population density. We'll also leave aside the tactical and strategic ineptness of the leaders on both sides—because, with very few exceptions, that is realistic. If Sauron or Saruman had any sophistication at all, they would have just beseiged their targets instead of storming them; Theoden would not have charged downhill into a force that had clearly already broken into the city; and so on.

I think the most logical antecedant for Rohan, though, is the pre-Muscovite Finns and Swedes. One of the great virtues of Eisenstein's Aleksandr Nevsky—aside from what is quite possibly the greatest score ever purpose-written for a film—is that there is substantial historical evidence behind it. The Battle on the Ice most probably did occur very much the way it was filmed; the "Viking" invaders were Finns and Swedes, historically; and virtually everything else fits the Rohirrim culture, except the numbers involved.

As a lesson in numbers, consider this: The English army at Agincourt (St. Crispin's Day, 1415) numbered between 4,500 and 5,500 total, with less than a thousand "men at arms" (think Gondor's footsoldiers). It was opposed by a French force of between 8,500 and 14,000 (some estimates go much higher, but the records of the baggage trains don't support them), about one-third mounted and virtually all foot close to the "man at arms" standard. Those two forces represented respectively 60-70% of the field military forces of those nations at that time.

To quote another of my favorite (underappreciated) movies:

You've got another scene. I'll write you another scene. It won't make a damned bit of difference. The studio'll cut 'em all out like they do everything else. All you'll have left is a bunch of swell battle scenes—which, when I was back there last time, they said looked just terrific.

In a nutshell, that's what's wrong with Jackson's The Return of the King, which I found a disappointment. Given the competition, it's still a comparatively very good film—but it's not nearly what it could have been.

…Don't Have to Be Like a Refugee
Ah, the follies of the MLA—whose conventions are "like a prom for geeks, except nobody gets laid." (Nobody is a bit of an overstatement—but not much.)

   I left the MLA in disgust in the early 1990s after one too many presumptive attacks on me—variously, for the sins of having a Y chromosome; for having a Y chromosome without being gay and still making an effort to understand GLB perspectives; for having the appearance of a Caucasian-American; and (perhaps worst) for having the haircut, civilized manners, and uniform of a military officer. Those, plus my attempts to treat speculative fiction from a serious literary perspective, were a few too many instances of allowing books to be judged by their covers—by people who had no intention of reading the books to see if their initial impressions were correct.

   So I am a refugee. I never did finish that dissertation; but that was for good and sufficient reason related to Uncle Sam's requirements. The problem is not with literary studies; it is with the ridiculous tenure process in academia, which requires "significant" advances to the field and considerable publication (all too often before the whole piece has been adequately thought through). Because the canon of acceptable subjects for publication in literature is relatively closed (at least, it grows nowhere nearly as quickly as the amount of literature worth studying grows), that forces untenured faculty members to take more and more outrageous positions—even when they don't really believe them—to satisfy the "publication" requirements, and it gets even worse when trying for promotion after achieving tenure.

   Some of this is the academic equivalent of penis envy, of the natural and social sciences. The advances in understanding (even with the undoubted errors on the path) in the natural and social sciences over the last century have comparatively so far outstripped the humanities that scholars in the humanities feel a need to do something—anything—to look like they're also advancing at a comparable rate. An individual with a fresh bachelor's degree in chemistry today knows more chemistry, and knows how to do more chemistry, than all but a handful of PhDs from 100 years ago. The same goes even for that most dismal of sciences (economics). One cannot say that for the humanities. I believe this is because we're lower on the learning curve for the humanities; many cynics (including too damned many university chancellors who should know better) believe that we're too far along the learning curve, and there isn't enough more to discover, so we should just cut out the English department and hire adjuncts to teach freshman composition (at substantially lower salaries and with no job security).

   In any event, thanks for this trip down amnesia lane. As much as I enjoy fine literature and its study—even more than Professor Bainbridge enjoys fine wine—I'm still trying to forget the MLA, because it has been coopted. Not because it is inherently ridiculous or worthless.

Now, if the asshole who runs "Bookman Marketing" will just follow the new anti-spam statute… wait a minute. It's unnecessary. All that would be required is for the laws already on the books concerning deceptive advertising to actually be enforced—over 95% of the spam out there, including Bookman Marketing, appears to violate the FTC Act and state UDAP statutes. However, the authorities seem too busy chasing down destitute junkies to enforce the other laws already on the books.
More Mergermania
There have been signs of this one for some time: FedEx is buying Kinko's. According to today's New York Times,

"The FedEx and Kinko's combination will substantially increase our retail presence worldwide and will enable both companies to take advantage of growth opportunities in the fast-moving digital economy,'' said FedEx Chairman and Chief Executive Frederick Smith in a statement.… FedEx, which has been Kinko's shipping provider since 1988, now operates counters in 134 Kinko's stores. It said Kinko's plans to significantly expand its international presence, where it has about 110 locations.

[Reuters] "FedEx to Buy Kinko's" (Dec. 30, 2003) (fake paragraphing removed for clarity).

   Considering Kinko's past history of assisting in copyright violations and the unsettled state of international copyright law on fair use ("fair dealing"), this may be of some concern; but we'll just have to see.

29 December 2003

More Barbie news: It's been a bad couple of weeks for Mattel. Today, the Ninth Circuit released its decision in Mattel, Inc. v. Walking Mt. Prods., Inc., No. 01-56695 (9th Cir. Dec. 29, 2003) (Pregerson, J.). The case concerns the limits of parody. As the court describes the dispute,

In the action before us, Plaintiff Mattel Corporation asks us to prohibit Defendant artist Thomas Forsythe from producing and selling photographs containing Mattel’s “Barbie” doll. Most of Forsythe’s photos portray a nude Barbie in danger of being attacked by vintage household appliances. Mattel argues that his photos infringe on their copyrights, trademarks, and trade dress.

Id. at 18170-71. (N.B. This case was argued immediately before Ellison v. Robertson; the oral argument was, to say the least, chaotic.)

   The most critical "new" issue decided is the scope of "parody."

   We decline to consider Mattel’s survey in assessing whether Forsythe’s work can be reasonably perceived as a parody. Parody is an objectively defined rhetorical device. Further, because parody is “a form of social and literary criticism,” it has “socially significant value as free speech under the First Amendment.” Dr. Suess, 109 F.3d at 1400. While individuals may disagree on the success or extent of a parody, parodic elements in a work will often justify fair use protection. See, e.g., Yankee Publ’g, Inc. v. News Am. Publ’g, Inc., 809 F. Supp. 267, 280 (S.D.N.Y. 1992) (“First Amendment protections do not apply only to those who speak clearly, whose jokes are funny, and whose parodies succeed.”). Use of surveys in assessing parody would allow majorities to determine the parodic nature of a work and possibly silence artistic creativity. Allowing majorities to determine whether a work is a parody would be greatly at odds with the purpose of the fair use exception and the Copyright Act. See generally Campbell, 510 U.S. at 583.

Id. at 18180 (italics in original, boldface emphasis added). This is important to authors for a very simple reason: those surveys are damned expensive, and deposing the experts who took them can be even more expensive. Thus, by making clear that whether a work is parodic (at least in the Ninth Circuit) is a matter of law for the judge, not subject to survey evidence, the creator of a parody that has been attacked as a copyright infringement just might be able to afford defending the parody as fair use.

   The decision also reinforces the use of trademarks as exemplars (sometimes misleadingly termed "nominative use"), particularly when the marks have become common coin.

[W]hen marks “transcend their identifying purpose” and “enter public discourse and become an integral part of our vocabulary,” they “assume[ ] a role outside the bounds of trademark law.” Where a mark assumes such cultural significance, First Amendment protections come into play. In these situations, “the trademark owner does not have the right to control public discourse whenever the public imbues his mark with a meaning beyond its source-identifying function.”

Id. at 18190 (citations omitted for clarity). As another example, consider Paul Simon's song "Kodachrome," in which he uses the term as a symbol for the relationship between actual events and photographic and other recall of the events. Although not a parody, the use of the Kodachrome mark in that context falls within this same reasoning—particularly as there is no disparagement of the mark or the product.

   As I mused last Monday, the scales tip ever closer to the lawyers getting the most income from Barbie.

27 December 2003

And the droit morale of This Story Is…
The European Commission has recently compiled a report on trade barriers with the US (PDF, 485k). One of the most prominent concerns is authors' "moral rights":

Despite the unequivocal obligation contained in Article 6bis of the Berne Convention, to which the US acceded in 1989, to make “moral rights” available for authors, the US has never introduced such rights and has repeatedly announced that it has no intention to do so in the future. It is clear that while US authors benefit fully from moral rights in the EU, the converse is not true, which leads to an imbalance of benefits from Berne Convention membership to the detriment of the European side.

Id. at 63. Leaving aside what "moral rights" are, I am afraid that this criticism misunderstands what an "author" is under US copyright law. (That the misunderstanding is justified and correct is beside the point.)

   The "real" moral rights problem is that in the European conception, moral rights extend only to natural persons. However, the majority (at least in terms of dollar value) of copyrighted works in this country are not copyrighted by the natural person(s) who actually created them; they are instead works for hire. Congress, in its dubious wisdom and doubtful constitutionality, has defined the investor in a WFH as the author. 17 U.S.C. § 101. Thus, the European Commission and US copyright law are actually talking about two incompatible things.

   Gee. What a surprise.

Where is Diogenes When You Need Him?
I seldom stick my nose into the debates between the established big-name ideologues. This time, though, I cannot resist, because it is an excellent example of taking material out of context and argument by redefinition—and it concerns the rationale for putting my butt out where it could be (and was) shot at during my first career.

   Kevin Drum at CalPundit argued that myopic "conservative" concentration on Communism as the ultimate evil and supporting any anti-Communist polity as better than any Communist polity was counterproductive and led to "the rise of an even bigger problem." Stuart Buck, on the other hand, takes two of Mr. Drum's sentences from the middle of his article and argues that Mr. Drum really means:

What makes Kevin Drum think that Islamic fundamentalism is an "even bigger problem" than Communism? Does he simply mean a bigger problem for us Americans? (Communists never killed anyone on American soil, after all.) Or is it that he thinks Islamic fundamentalism will kill many more people in the future before it is played out?

Neocons and Communism, 24 Dec. 03 (italics and footnote omitted for clarity).

   This is one of the most egregious examples of intellectual dishonesty that I've seen in the blogosphere in a long time. Well, three weeks, anyway—which is forever in the blogosphere.

  • Mr. Drum was not using "number of deaths caused" as a proxy for evil. As he specifically stated,

    Wolfowitz and the neocons seem to truly believe that they're motivated by an idealistic devotion to democracy, but at the same time they're willfully blind to the fact that their own Cold War history makes a shambles of that supposed devotion.

    That is, the evil in question is opposition to democracy, not death. If, that is, one can see any evil other than death; and I think that the whole point of the Constitution.

  • Mr. Buck also assumes that the only "anti-Communist-caused deaths" that may be used to balance those "caused by" Communism are those "caused by" Islamic fundamentalist regimes. Even accepting his figures—that Communism killed 100 million people, and that Islamic fundamentalism kills "only" 500 per year through terrorism—one can only shake one's head. First of all, the "fair" comparison is between terrorist deaths caused by Communist regimes and terrorist deaths caused by Islamic fundamentalist regimes, and I seriously doubt that 100 million can be so attributed to Communism without doing great violence to the common understanding of "terrorism." Or, on the other hand, if one insists on that 100 million figure as somehow sacrosanct, one must also look at non-terrorism deaths caused by Islamic fundamentalism. I have no hard figures to contribute; neither does anyone else; that number surely exceeds 500 per year worldwide. Now add in all the other "anti-Communist" deaths caused by non-Islamic fundamentalist regimes, such as Chile under Pinochet and Argentina and Brazil under the generals; the Khmer Rouge; Sukarno; need I go on? Further, that "100 million" figure seems to include a lot of deaths under Stalin, which precede the time period (1970s and 1980s) invoked by Mr. Drum.
  • All of the above assumes that one accepts the figures in the State Department's reports as a basis for "measuring" deaths caused by terrorism. I don't; the specific reasons for that fall within my NDA; but even cursory analysis of the actual material (as opposed to a summary table in a secondary source) should raise grave doubts in anyone's mind. This is a minor criticism; it is, however, interesting foreshadowing of…    
  • Mr. Buck also cites as authoritative as passage from Adam Smith's Theory of Moral Sentiments that criticizes the "European mindset" as purportedly caring more about losing the tip of one European's finger than the entire population of China. Leaving aside the obvious hyperbole—not a valid basis for argument—one might also question whether Smith's invocation of a purported 18th-century European attitude has all that much to do with Mr. Drum's concerns with a late-20th-century American attitude. Even if it does, Smith's example is only an explanation of attitude, not authority on the relative values of death and antidemocratic governments as evils; it is instead merely inflammatory. The irony that Mr. Drum notes that "The old hatred of Europe is back too, this time even more virulent than before" is particularly delicious.

   I don't ordinarily go in for deconstruction as a method of analysis. Most of the time, it is only a means to prove that the analyst is more clever than the text in question (this is not a very high standard, as the text can't talk back). That, however, seems to be exactly what Mr. Buck is doing in his "deconstruction" of Mr. Drum's post: first changing it to something that he (Mr. Buck) wanted to argue about, then marshalling everything he could to defeat the straw man created thereby. If there is one thing that deconstruction teaches, if only by implication, it is that there is no content without context. One need not be an absolutist to see that. Or, instead, is this yet another attempt to advance the logically insupportable "all politics and morals are absolute, not relative" position that acts as the curtain hiding the little men who operate Oz? In any event:

   Shame on you, Mr. Buck. You had an opportunity to actually try to advance a debate; instead, you chose to twist another's words to make the ideological point that you wanted to in an effort to make your "opponent" look foolish. In the end, you only discredited your own position. At least, to anyone who actually thinks about what was said instead of merely looking at the labels and saying "Buck is better than CalPundit, therefore Buck must be right" (pun intended).

26 December 2003

'Twas the day after Christmas, and all through the mall
Not a creature was stirring: The lines were too long.
The shoppers all hung by the shoeracks with care,
In hopes that some salesperson soon would be there;
The children were crowded all snug on their beds,
While villains from Playstations danced in their heads;
And mom read the boxtop, while I spliced the wires,
As we struggled with presents—"Some assembly required."
Then up in the attic arose too much clatter,
I sprang from the floor feeling something the matter.
Away to the window I flew eyes agog,
Tore open the shutters and threw up eggnog.

Merry day-after-commerce-appropriated-winter-solstice-celebration to all!

25 December 2003

Not related to Simonize, although my forehead may prove an advertisement therefore.

   Our text today is chapter 4, verses 3 and 4:

The food was great, the tree plugged in,
   the meal had gone without a hitch,
Till Timmy turned to Amber and said,
   "Is it true that you're a witch?"
His mom jumped up and said, "The pies are burning,"
   and she hit the kitchen,
And it was Jane who spoke, she said,
   "It's true, your cousin's not a Christian,"
"But we love trees, we love the snow,
   the friends we have, the world we share,
And you find magic from your God,
   and we find magic everywhere,"
So the Christians and the Pagans
   sat together at the table,
Finding faith and common ground
   the best that they were able,
And where does magic come from?
   I think magic's in the learning,
'Cause now when Christians sit with Pagans
   only pumpkin pies are burning.

Dar Williams, Mortal City (1995).

23 December 2003

Being somewhat (!) to the left of the Perfesser (OK, OK, I am an unabashed fan of the late Jeff MacNelly's Shoe, and it was just too easy a smartass remark to let go, particularly given all of the election follies discussed over the years in Shoe), I have a slightly "rosier"—if the prospect of a centrist instead of a conservative in office justifies "rosier"—view of Nader's noncandidacy for the Greens. Sure, the Greens will get someone on the ballot everywhere. But unless they can come up with someone with equal name recognition, they won't get the protest and crossover votes they did in 2000.

   I was especially displeased with all of the candidates in 2000. My displeasure with Buchanan should be obvious; my grandparents were immigrants, and that's just the starting point. My displeasure with Nader is a little more difficult to explain. The greatest societal value for people like Nader is as a gadfly. We need more gadflies and fewer "yes men," regardless of the ideology involved. Becoming the "Establishment" would greatly diminish that value.

   That left us with proof that the South won the War Between the States. We had, on the one hand, the Southern son of a member of the US Congress, born to power and wealth, with little ability to understand the concerns of the majority of his constituents and a tendency toward grandiose overstatement, surrounded by some really, really scary advisors and family members and underhanded runningmates. Actually, that's what we had on the other hand, too. It has turned out that Bush's advisors, cronies, etc. were even scarier than I remembered them being; but that didn't make me any happier about Tipper Gore's inability to find the First Amendment (remember PMRC? "It's an act, lady!").

   This time, no such finagling. Cthulu for President—why settle for the lesser evil?

Storm Warning
Border's, the most-influential brick-and-mortar (that is, "real" as opposed to "online") bookstore chain, has asserted variously that publishers don't know what their books are worth and that publishers harm the market by printing prices on books (one of the few non-subscription sources to reprint the critical paragraph). Leaving aside the ridiculous claim that books are the "only" class of goods so marked—been to a toystore lately?—Border's position creates both logical and legal difficulties that I suspect nobody is really paying any attention to.
  • Logic problem: This supposed problem assumes—without any proof, and in fact counterintuitively—that books are widgets and thus fungible. Even within one author's oeuvre, one cannot determine the "value" in advance—and certainly cannot do so on a national or even regional basis. The possibilities for arbitrage alone should discourage this kind of nonsense—all the "liberals" in university districts will no longer shop there, but instead at the more "conservative" bookstores in their areas, and vice versa, because greater "demand" for "liberal" books in university districts will (supposedly) drive up the price of those books there. In the long run, this will lead only to equilibrium, and thus to the demise of even more bookstores that try to be "different." Wait a minute… maybe this is what is intended…
  • Logic problem: This supposed problem also assumes that the cost of gathering and analyzing the data will be enough less than the potential additional profit to the bookstore that it will work across the complete field of trade books. (What this would do with academic titles is anybody's guess, because supply and demand is extremely artificial and not driven by consumer preference.) Perhaps it might work with heavy-selling titles; but then there will be two classes of goods within the same field—classes which are not fungible—creating more management problems and potentials for outright fraud than I can shake a stick at.
  • Logic problem: This also assumes that the current insane system of returns and consignment sales (sorry, guys, but any passing of title to the books to the bookstore is at best illusory because it is reversible at the bookstore's discretion) will continue. If nothing else, the continued pressures in opposite directions exerted by both discount stores and online bookselling make this an uncomfortably speculative assumption.    
  • Legal problem: The vast majority of royalty-paying contracts at this time set the author's compensation as a percentage of the publisher's list price for the work. So, then, what happens when the publisher is no longer setting a list price for the work? Seems like a breach of contract to me—or perhaps an invitation to go to so-called "net receipts" royalties. (In practice, the percentages are pretty much the same, meaning that the author gets less.) I don't even want to think about the potentials for fraud that this raises, not to mention abusive "mandatory" renegotiation of contracts to account for "changing business practices."

   As usual, the [offensive expletive deleted] marketing dorks are using their [another offensive expletive deleted] tunnel vision and inordinate influence in the more-corporate aspects of publishing to try to commoditize publishing. Given that the point of publishing is to meet the individual needs of consumers with developed tastes that are seldom completely congruent, the self-defeating nature of the proposed changes (which, in the end, would result in potential demand-based adjustments to the selling price of less than 5% of the titles released each year) is a nice little lump of coal for their stockings.

   Oops. They don't wear stockings? Well, I can think of somewhere else to put their lumps of coal…

22 December 2003

She's Not a Barbie Grrrrl
One must wonder which generates more income: sales of Barbie and associated merchandise, or legal fees on both sides of the v. related to Barbie. As the Ninth Circuit noted today,

Barbie, the ubiquitous doll produced by Mattel, has been a regular visitor to our court.1 This time she brings with her an issue of personal jurisdiction—not over her, but over a German toy company which has questioned her ancestry by asserting that Barbie was a copy of its doll and that Mattel had infringed its patent and other intellectual property rights. The German company, Greiner & Haußer GmbH (“G&H”), previously asserted claims to that effect in a lawsuit filed in federal district court in Los Angeles in 1961, more than 40 years ago. That lawsuit was resolved by a dismissal with prejudice of those and other claims. Today, Barbie generates over $2 billion in wholesale revenues each year, a sum which helps to explain why Barbie comes to visit us so frequently. It presumably also helps to explain why a lawsuit was filed in Germany in May 2001 by G&H, claiming that it had been defrauded by Mattel when it entered into a set of related agreements with Mattel in 1964, shortly after the dismissal of the previous California litigation, and seeking damages in the form of a royalty on every Barbie doll sold since that time.

Mattel, Inc. v. Greiner & Haußer GmbH, No. 02-56272 (9th Cir. Dec. 22, 2003) slip op. at 17979 (footnote omitted).

   And, of course, the opinion sends the matter back to the District Court for more proceedings… as meanwhile a somewhat parallel lawsuit proceeds in Germany…

For amusement value only, I think I may have spotted the first opinion mentioning the Governator:

*The Honorable Arnold Schwarzenegger is substituted for his predecessor, Gray Davis, as Governor of California. Fed. R. App. P. 43(c)(2).

Artichoke Joe's, et al., v. Norton, et al., No. 02-16508 (9th Cir. Dec. 22, 2003) slip op. at 17849.

<SARCASM> Yeah, there's a wide-ranging left-wing bias in the media. All those liberal reporters and columnists and editors</SARCASM> Actually, it's not so much an ideological bias (in any direction) as an anti-intellectual bias; but that's for another time.

21 December 2003

But this blawg wouldn't be as much fun without some occasional spleen spattered on the screen, would it? This time, though, I'm really pissed off and insulted.

   By Writer's Digest, naturally enough. WD has begun a pretty-much-monthly "Ask the Lawyer" column. The difficulty begins with the author; it claims that she is "an attorney and literary agent." Her agency proclaims that it doesn't handle fiction—yet most of the questions relate directly or indirectly to fiction.

   Then there's the accuracy—or, rather, lack thereof—of the answers. Consider these examples:

  • "Derivative works may be copyrighted, but only the portions that are your original contributions." Bzzzt! Although a suit for infringement will lie only for the parts that are original contributions, the entire derivative work is copyrighted at the moment it is fixed. That entire derivative work may also be registered with the Copyright Office, and the copyright registration number assigned will cover the entire work; it is just that when it comes time to either file a lawsuit or sublicense, only the "new" parts belong to the author of the derivative.
  • "Even if you don't hold the copyright to the screenplay, it doesn't sound like you're crossing any legal barriers by allowing one person to read the work with the intent, presumably, to get her on your side." Bzzzt! See, e.g., Desny v. Wilder, 46 Cal. 2d 715 (1956) (presuming a confidential relationship between a hired/commissioned screenwriter and the provider of the underlying "idea").
  • "It needn't be a formal contract, a letter concisely describing your business agreement will suffice." Umm, that is a formal contract, unless the Statute of Frauds intervenes—and, on the facts of the question (not stated here), it would of necessity intervene, because the term of copyright would exceed one year. Thus, that letter is not sufficient.

   It's bad enough that the publishing industry as a whole, and the agent community as a whole, are so [string of unbelievably foul and offensive expletives deleted] ignorant of the legal consequences and implications of their business practices, such as the unauthorized practice of law engaged in by literary agents when they negotiate contract terms other than price and quantity. When someone who is "an attorney and literary agent" adds her imprimatur to that ignorance…

The Grinch Was a Great Guy
…at least until his heart grew three sizes. For those of us in solo practice, particularly in fields in which our clients can only discuss matters after they get home from their day jobs (on average, even a well-known writer's earnings solely from writing are around or below the poverty line; thus, the day job), there aren't any real holidays. Statutes of limitations continue to run; interest continues to accrue; and disdain for cheap ornaments remains undiminished.

   Bah, humbug.

   In any event, off to do what's left of my Christmas shopping. At an independent bookstore, of course. More acerbic comments will just have to wait until this evening or tomorrow morning. At least the Supreme Court is in recess until after the New Year, so there won't be more opinions from there to consider. Which means I'll have time to finish up that ethics complaint as my other Christmas present—a present for the profession and hopefully the public at large.

19 December 2003

DMCA Subpoenas
The DC Circuit has blocked enforceability of a subpoena issued to Verizon Communications by the RIAA in an attempt to force Verizon to disclose the identity of certain P2P "music pirates." The ruling was strictly a matter of statutory interpretation.

[W]e agree with the RIAA that Verizon overreaches by claiming the notification described in § 512(c)(3)(A) applies only to the functions identified in § 512(c). As Verizon correctly notes, however, the ISP activities described in §§ 512(b) and (d) are storage functions. As such, they are, like the ISP activities described in § 512(c) and unlike the transmission functions listed in § 512(a), susceptible to the notice and take down regime of §§ 512(b)-(d), of which the subpoena power of § 512(h) is an integral part. We think it clear, therefore, that the cross-references to § 512(c)(3) in §§ 512(b)-(d) demonstrate that § 512(h) applies to an ISP storing infringing material on its servers in any capacity—whether as a temporary cache of a web page created by the ISP per § 512(b), as a web site stored on the ISP's server per § 512(c), or as an information locating tool hosted by the ISP per § 512(d)—and does not apply to an ISP routing infringing material to or from a personal computer owned and used by a subscriber.

RIAA v. Verizon Internet Servs., Inc., No. 03-7053 (D.C. Cir. Dec. 19, 2003) (slip op.) at 13 (PDF, 55kb).

   This is not an entirely unsurprising opinion. The problem is not with the "justice" of Verizon's concern for privacy on the Internet, or with the "justice" of the RIAA's attempts to protect the copyrights of its members. It is instead, as the subtext of the opinion indicates, a problem with a badly conceived and drafted statute. Next time, guys, ask individual copyright holders—many of whom are technically far more sophisticated than any of the major distributors, whether in publishing, music, or movies—how to structure the statute. If it had been structured from the user's perspective (in other words, the user complains based upon what/how he sees the infringement) instead of the ISP's perspective in a world of constantly changing technology, the whole issue would have been covered and this decision would not have been necessary.

   N.B. This opinion has no relevance to Ellison v. Robertson, which concerns liability of the service provider itself for infringing material. We contend that it was stored on AOL's servers, and that AOL was in any event ineligible for any DMCA safe harbor because it did not comply with § 512(i). AOL contends that the infringing material was only in transition, and that therefore it can claim protection under § 512(a); contra ALS-Scan, Inc., v. RemarQ Communities, Inc., 239 F.3d 619 (4th Cir. 2001) (identical type of communications at issue are stored, not transitory). No decision has yet been issued by the Ninth Circuit. This is a purposeful invocation of Murphy's Law—by mentioning that no opinion has yet issued, I'm hoping that the perversity of the universe will result in issuing it today.

I think I'll leave the detainees issues to others from here on. My biting rejoinders, based on the fact that most of the commentators don't know what the [choose favorite expletive here] they're talking about in intelligence gathering—including, sad to say, the DOJ's representatives—would fall inside my NDA. So my silence is enforced by the government. The irony is a bit much.

   Sometimes, the publishing industry has some really interesting excuses for its breaches of contract. Last year, for example, Chodos (out of the Ninth Circuit) criticized West Publishing—the 800–lb gorilla of legal publishing—for breaching a contract to publish "a treatise on the intriguing subject of the law of fiduciary duty." The court found that West's decision not to publish the book, even though the manuscript was completely conforming to the quality expectations of the parties and was timely delivered, was an improper breach of contract.

After Chodos had spent a number of years fulfilling his part of the bargain and had submitted a completed manuscript,… the West Publishing Company[] came to a contrary conclusion. It declined to publish the treatise, citing solely sales and marketing reasons.… The district court held that under the terms of the contract West’s decision not to publish was within its discretion, and granted summary judgment in West’s favor. Chodos appeals, and we reverse.

Slip op. at 1.

   West has gotten into the news at the opposite end of the country for another refusal to publish, this time in a much more tangled case concerning a "trial consultant" database. Regardless of my opinion of "trial consultants"—in my experience and opinion, they are largely an attempt to subvert the jury process by a side with a weaker case and vastly greater resources than the opposition, and therefore border on improper attempts to influence an actual seated jury—the publishing contract as described seems clear enough. West's decision to back out seems to have been influenced by "changing market conditions" in a fashion disturbingly reminiscent of Chodos.

   It's bad enough that the publishing industry often treats contracts to publish manuscripts that have not yet been completed as of the contract date with supercilious disdain (often arising to bad faith in exercise of "discretionary" functions) once disputes arise. The delicious irony that a monopolistic legal publisher has been called to account for the same practices just sort of makes my day. In the same sense as Clint's.

18 December 2003

It's Not Painless

With all due respect, Professor Bainbridge, I cannot agree at all with your invocation of the "suicide pact" argument. (Besides, I beat you to the punch on Gharebi by a couple of hours—I posted at 1:18 Central time. Phhht!) Although it is certainly arguable that Justice Jackson used the phrase "suicide pact" first, the most common invocation is of Justice Goldberg:

The powers of Congress to require military service for the common defense are broad and far-reaching, for while the Constitution protects against invasions of individual rights, it is not a suicide pact.

Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963) (Goldberg, J.).

Mendoza-Martinez is a draft-dodging case—at least, on its face. The defendant was a naturalized US citizen who evaded the draft in 1942 by going to Mexico until 1946 (according to the colloquy in his guilty plea). After his conviction, the government stripped him of his citizenship and deported him. The case is really about the concept of estoppel—that is, one cannot argue against the result in a prior case that went against one, so long as the issue was (or could have been) fully and fairly tried in the prior case. Yes, that's a mouthful. Consider it in the context of a teenager trying to borrow the car. If the teenager asks Mom to borrow the car, and she says "No," the principle of estoppel would prevent said teenager from walking into the next room and asking Dad to borrow the car. He would be estopped from arguing against the result when he asked his mother (assuming, of course, that Mom and Dad have equal authority over the car). But what if he wanted to use the car to go take a college admissions test, and his mother just said "no" without listening to the substance of the request? Wouldn't that justify asking Dad to consider it anew? Probably not, because he could have at least gotten his reasons before Mom for her to reconsider her decision. Mendoza-Martinez is not really about civil liberties, but about civil procedure. Citing this language in support of deprivation of civil liberties is at a minimum removing it from context. (And the context in which Justice Jackson was using it—another case turning on civil procedure, not civil liberties.)

So just what is a "suicide pact?" Compare Hirabayashi v. United States, 320 U.S. 81 (1943) (upholding curfew imposed on Japanese-Americans due to their ancestry without regard to their citizenship) with Korematsu v. United States, 323 U.S. 214, 233–42 (1944) (Murphy, J., dissenting) (ethnicity is not a valid ground for restrictions on individual freedom of U.S. citizens). The oath taken by federal officers, particularly those in the military, requires them to "protect the Constitution against all enemies, foreign and domestic." If the nation is so changed by overreaction to extreme circumstances that the Constitution is thoroughly undermined, is not that as much a "suicide pact" as failing to defend it against foreign invaders? I wish this was only a rhetorical question. Instead, it implicates the basis of the Constitution itself: a government designed to prevent the tyranny of unlimited royal and Parliamentary power perceived in the American Colonies in the 1750s through 1770s.

This is a question of means and ends. Preserving the nation against terrorism is a satisfactory end, without question. The real controversy is the acceptable means to do so—keeping in mind that the means actually used will shape the ends actually achieved. Our collective memory appears so short that the "Red Raids" of the 1920s (that usually ended up as exercises in union-busting), HUAC, McCarthyism, Orville Faubus, Ernest Medina, William Calley, Daniel Ellsberg, and the sound of J. Edgar Hoover sucking civil liberties out of the nation at large are completely forgotten. Those who do not know history are doomed to repeat it. We've had repression of dissent before, and repression of supposed durned furriners and alien seditionists before; each of those major periods was followed by significant civil unrest against the power structure.

Ironically, the unstated assumptions that "justify" keeping the detainees from talking to lawyers do not hold up under even casual scrutiny. This goes far beyond the sub rosa assertion that lawyers are disloyal to US security. It instead assumes that the detainees will be less likely to provide valuable and timely intelligence if they're talking to their lawyers. Bullshit. In what I can discuss even cursorily of my experience, it's easier to get someone to repeat something already "confessed" to someone else, even in confidence, than to get them to say it the first time. At least, it's easier without going beyond the third degree into 1980s South African police practices. In other words, denying the detainees access to counsel may well be counterproductive; and had experienced interrogators familiar with Islamic culture been consulted and listened to in the first place, this divisive argument may never have become ripe. One might also say the same about even the necessity for the argument; but the tangled world of intelligence gathering, analysis, filtering, and selective use in making practical and policy decisions is both beyond the scope of this blawg and within the scope of my NDA.

… Now It's a Headlong Rout
The Ninth Circuit has, a few minutes ago, posted a decision on the Guantanamo Bay detainees consistent with the Second Circuit's decision this morning in Padilla. In Gharebi v. Bush, a panel consisting of Circuit Judges Reinhardt and Graber, and Senior District Judge Shadur (Northern District of Illinois), held only that the courts are open to challenges, not necessarily that the detentions are unlawful.

   We hold that the district court erred in concluding, based on Johnson v. Eisentrager, that no district court would have jurisdiction over Gherebi’s habeas petition. We also hold that the Central District may exercise jurisdiction in this case because the Secretary of Defense is subject to service of process under the California long-arm statute. Finally, we remand to the district court for consideration of the question whether transfer to a different district than the Central District of California would be appropriate.

Slip op. at 58. Judge Graber dissented, holding that the situation was controlled by an existing adverse precedent.

The second sentence of its opinion contains the key to the majority’s errors here: "The issues we are required to confront are new, important, and difficult." Maj. op. at 2. Although the issues that we confront are important and difficult, they are not new. Because the issues are not new, we are bound by existing Supreme Court precedent, which the majority misreads. Because the issues are important and difficult, the Supreme Court has decided to revisit them, and we should await the Supreme Court’s imminent decision.

Id. at 59. Thus, although it is a dissent, it does not express much support for George III's suspension of habeas corpus. At least Lincoln had the good sense to formally declare it…

Ashcroft's Army: Advance Toward the Rear!
The Second Circuit has just released a 2-1 decision in Padilla holding that the President may not indefinitely detain "terrorists" seized on US soil who are US citizens while blocking access to the courts. Somewhat unusually, the opinions are not in a single file; the majority opinion can be browsed (HTML converted from PDF) or downloaded (PDF, 185kb), while the partial dissent can be separately browsed (HTML converted from PDF) or downloaded (PDF, 77kb). The majority holding appears to dismiss Article II powers of the President as overruling Article III powers of the courts over US citizens seized and detained in the US.

Where, as here, the President's power as Commander-in-Chief of the armed forces and the domestic rule of law intersect, we conclude that clear congressional authorization is required for detentions of American citizens on American soil because 18 U. S. C. § 4001(a) (2000) (the "Non-Detention Act") prohibits such detentions absent specific congressional authorization. Congress's Authorization for Use of Military Force Joint Resolution, Pub. L. No. 107-40, 115 Stat. 224 (2001) ("Joint Resolution"), passed shortly after the attacks of September 11, 2001, is not such an authorization, and no exception to section 4001(a) otherwise exists. In light of this express prohibition, the government must undertake to show that Padilla's detention can nonetheless be grounded in the President's inherent constitutional powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637-38 (Jackson, J., concurring). We conclude that it has not made this showing.

(Noted at Howard Bashman's excellent How Appealing.)

   Given the uncomfortable "political prisoner" subtext and the frequency with which authors are so treated, the expected outraged pleas for reversal either en banc from the Second Circuit or through certiorari from the Supreme Court should be somewhat disturbing, even given the "hard" facts. Perhaps more as this relates to freedom of speech and writers after I think through both opinions.

If you think we have fun over here with our mess of state and federal laws, which are all too often contradictory, consider the problem in Europe over what we here consider an exclusively federal matter: copyright law. The European Commission has just announced its intent to sue Belgium, Spain, France, Luxembourg, the Netherlands, Portugal, Finland, Sweden, and the UK for failing to fully implement the 2001 Directive on copyright harmonization by 22 December 2002, and Ireland for continued failure to properly implement the Berne Convention's provisions allowing foreign rightsholders to assert their rights.

   I find this more than somewhat comical. With all the snooty assertions of droit morale and disdain for the US's failure to implement them (on balance, I support certain forms of droit morale, such as a nonexpiring right to accurate attribution of authorship and indication of revisions or other alterations in a textual work) coming from the French-speaking nations in the EU, we've got yet another instance of pots and kettles arguing over who is black. And all of the racial ironies in that cliché are fully intended, particularly considering the current controversies over use of folk materials.

At Least He Won't Face the Death Penalty
Here's more information on the indictment of former Governor George Ryan:
  • A story in the Chicago Tribune (which, incidentally, opposed the blanket clemency he granted on his last day in office, so keep that in mind when reading the story—it is not a model of journalistic neutrality).
  • The indictment itself (PDF, 242kb), which seems somewhat—but not excessively—excessive. Really, now: income tax evasion for a practice committed (intentionally or inadvertantly) by at least half the elected officials in this country who even have campaign funds? Or is this perhaps just the Chicago tradition of using the Infernal Revenue Service to ensure jail time for miscreants, like Al Capone?

   I find one aspect of this case disturbing, but there may well be an innocent explanation for it: There is no statute of limitations problem or sentencing hearing of witnesses problem with waiting until after the holiday season for anything in the indictment. It seems to me that the timing of the announcement is a bit of grandstanding, as there are a couple of other matters in the Federal courts in Chicago that will probably break in the next few days that may well place the US Attorney's office in a negative light. There may well be an innocent explanation such as ensuring that the indictment was returned within a certain amount of time after the grand jury met. Ordinarily, however, public figures are accorded the courtesy this close to the holidays of waiting until after the New Year—unless there is personal animosity or a pressing legal reason to indict during the holiday season.

   As I said, there may well be an innocent explanation, but that would not be normal in Chicago politics. I would be unsurprised to find out that ultimately, this timing was driven by far-right Republicans (locally or nationally) anxious to punish Ryan for betraying their vision of appropriate criminal punishment for the innocent dregs of society convicted killers who populated on Death Row. Perhaps Governor Ryan no longer tinkers with the machinery of death; but the timing of the indictment suggests that the machinery of death perhaps continues to tinker with him.

   None of which is to excuse corruption in public office. That may be the official state sport, but then I despise the so-called "national pasttime" as a Communist conspiracy to sap the physical fitness of American youth and prevent understanding of true teamwork, so there.

17 December 2003

Former Governor George S. Ryan has been indicted in the Northern District of Illinois (Chicago federal court) this afternoon on 22 counts related to corruption while he was Secretary of State, just before he became Governor. I admire his fortitude in dealing with the capital punishment issues in this state; I do not admire anything in those charges, should they prove true. Corruption, even for a "good end," tarnishes the result.
Justice and VA Hospitals
If you thought that the last entry vented some spleen, you haven't seen anything yet. I'm really, really offended by the implications of an article in this morning's New York Times that demonstrates quite clearly that the New York bar disciplinary authorities are not asleep at the switch; they've bloody well disconnected the power source.

   Those of us who are veterans dread VA hospitals. They have a well-earned reputation for substandard medical care, and most particularly for continuing to employ physicians after repeated instances of malpractice with little if any discipline, let alone suspension or removal of medical licenses. The medical profession, however, while it does have mandatory reporting, gives government agencies a free pass on those requirements: it does not discipline government employees for failure to report misconduct. The legal profession is worse, because our mandatory reporting requirements (and even permissive reporting requirements) are much stiffer—at least on their face.

   A review of appellate decisions showed that judges had cited prosecutors for misconduct in 72 cases over a 21-year period, ranging from a prosecutor who invoked the Bible in closing arguments to a prosecutor who knowingly let the sole witness in a murder case lie to the jury, said the lawyer, Joel B. Rudin. While the misconduct was often egregious and contributed to the reversal of 62 of the cases, only one prosecutor involved was disciplined by the district attorney's office, said Mr. Rudin, who examined personnel records that the city turned over to him. All the other prosecutors continued to get merit raises and bonuses, according to the records. Officials in the district attorney's office denied that prosecutorial misconduct was frequent or went unpunished. They said that in the 72 cases that Mr. Rudin highlighted, sanctions might have been issued that were not reflected in the prosecutors' personnel records.

*  *  *

   Others in the legal profession said that misconduct was sometimes a necessary part of the learning curve. "Everybody makes mistakes—if we have a zero-tolerance policy in the legal profession, everyone is going to get disbarred," said Joshua K. Marquis, district attorney of Astoria, Ore., and a member of the board of directors of the National District Attorneys Association.

Andrea Elliott, "Prosecutors Not Penalized, Lawyer Says" (17 Dec 03) (fake paragraphing removed for clarity). The point is that personnel records are not the only place that should show records of misconduct and sanctions—keeping in mind that the 62 cases in which the misconduct was serious enough to require reversal are only the tip of the iceberg, given the standards for reversal of a criminal conviction due to prosecutorial misconduct—and that Mr. Marquis is an ignorant git if he wants to characterize blatant misconduct as a "mistake." Further, even if it is a "mistake," it demonstrates a serious problem with attorney preparation for practice that requires immediate attention from the profession, both prior to admission to the bar and in appropriate supervision of young attorneys. (For what it's worth, most attorneys are shitty managers and supervisors, and wouldn't know effective mentoring and supervision if it slid up their tails and bit them on the pectoral fins.)

   Whether Mr. Marquis's statement itself (presuming it was accurately quoted) might implicate Model Rule of Professional Conduct 8.3 is a question for another time. Defending the profession against what is essentially a charge that it is refusing to regulate itself is not just stupid, even if all too typical, in the face of this kind of evidence, but just might call said defender's fitness to practice law into some question. This is not a accusation of any particular attorney; it is an accusation that the disciplinary authorities are not just wearing no clothes—they are naked, painted purple, dancing on top of a harpsichord, and singing "Happy Days Are Here Again." Off key.

First I'm Just Amused…
Back in the 1980s, my then-wife and I had simple rules about going to movies (remember, we were in Oklahoma, so the local reviews were inept, politicized, and worthless): If Gene thought the movie was great and Roger was lukewarm, it was probably a very good movie; the converse was not worth the effort. I'm afraid that Roger has again proved that we were right, independently of the worth of The Return of the King, because his review in today's Sun-Times demonstrates some real ignorance about literature and storytelling that is inexcusable in a "reviewer."

It is a melancholy fact that while the visionaries of a generation ago, like Coppola with Apocalypse Now, tried frankly to make films of great consequence, an equally ambitious director like Peter Jackson is aiming more for popular success. The epic fantasy has displaced real contemporary concerns, and audiences are much more interested in Middle Earth than in the world they inhabit.

Roger, I know that you know perfectly well that the "visionaries of a generation ago" had a lot more freedom from financial-management oversight than do those today; Coppola's then-recent successes with The Godfather (which I think is decent, but very much overrated by movie buffs who know little of literature) would have allowed him to make a big-budget epic of his daughter's high school graduation. Conversely, Peter Jackson's films have "only" critical acclaim behind them (the otherwordly Heavenly Creatures, for example), necessarily forcing more-conscious appeal to audience dollars. It's the last sentence that really reveals Roger's ignorance, though. Epic fantasy is merely another way to talk about contemporary concerns, as demonstrated by Cervantes, Voltaire, and even Rabelais, not to mention more-recent practitioners like Cabell. Conversely, anyone who claims that such "contemporary concern-oriented" trash as that printed in The New Yorker under Tina Brown, or tiresome series of novels by Updike, are inherently superior to anything in "epic fantasy" (which, by the way, is a redundancy—but then, Roger, you've already demonstrated that you know little of literary theory) is merely clinging to form over substance.

   Then there's this gem, later in the review:

There is little enough psychological depth anywhere in the films, actually, and they exist mostly as surface, gesture, archetype and spectacle. They do that magnificently well, but one feels at the end that nothing actual and human has been at stake; cartoon characters in a fantasy world have been brought along about as far as it is possible for them to come, and while we applaud the achievement, the trilogy is more a work for adolescents (of all ages) than for those hungering for truthful emotion thoughtfully paid for.

(emphasis added) I had to read this three times to make sure that it really means what it appears to say. Given that the whole point of all of the journeys in The Lord of the Rings is to define what is at stake when one chooses the hard road over ease and immediate emotional gratification, I can only conclude that Roger doesn't know what he's talking about. Gene would have smacked him down; just compare their reactions to Apocalypse Now at the time it was first released. Then, Roger has a great fondness for Star Wars as great film, so…

Aircraft Built on Sand
One hundred years ago, man could not use a powered vehicle to leave the surface of this planet. Since then, man has successfully used powered vehicles to take instruments to other planets (Mars Surveyor) and people to the Moon. In historical terms, this is the equivalent between the first seagoing dhows and Magellan's voyage; in one hundred years we accomplished the equivalent of two thousand years' development. Change continues to accelerate; and, in every era of rapid technological change in human history, reactionary elements have attempted to seize social and governmental control and slow things the heck down. (Exhibit A: the Renaissance and Reformation.) This has nothing—or at least very little—to do with "liberal" and "conservative," both of which are abstract, values-based descriptors. There are reactionary liberals just as there are radical conservatives.

   So, perhaps, the sands at Kitty Hawk bear some of the weight of recent politics. Just as well as sand ever does.

Joining the Coffee Achievers
I grew up in Seattle, and remember the way Starbucks started out in the 1970s with one outlet near three of the major movie theaters. As a wine connoissuer, I'm sure that Professor Bainbridge has strong opinions on the results of inadequate quality control: nobody really enjoys it when bottle A from Vineyard X is substantially different from (let alone inferior to) bottle B (of the same basic style) from Vineyard X. One factor that probably influences the differences between the Starbucks central-ownership model and the Subway franchise model is the nature and extent of quality control required for the particular product. Making good coffee is, compared to making sandwiches, much the same way. It's a lot harder to screw up a sandwich than it is a cup/pot of coffee. Further, standardization of equipment is a lot more important in coffeemaking than in sandwichmaking. For example, it really doesn't matter what brand of utility knife one uses to cut bread for making a sub sandwich; a 4-5" blade with moderate serrations is all that matters. One can't say the same for coffee machines, or the cleanliness of the machines. Further, because the taste of coffee is so much stronger and more individualized than a sub sandwich, it's harder to replicate one's preference at O'Hare and Hartsfield without close central supervision than with it.

   This requires more control than just "how hard the employees work." I infer that in Starbucks' opinion, the nature of its product requires central supervision of quality control efforts, including equipment maintenance and supplies purchase, to a much greater extent than Subway's opinion of how the nature of its product requires central supervision of quality control. Believe it or not, this opinion arises not from economics, but from military aircraft maintenance procedures. Certain kinds of aircraft maintenance functions are centralized, while others are done at local units. However, the complete nature of the aircraft mission strongly influences how much of each there is. Even since SAC and TAC merged to form Air Combat Command, nuclear-capable and stealth aircraft have continued to "enjoy" much more rigid central control over the tiniest aspects of maintenance than fighters, whether air superiority or otherwise. (Just ask anyone who's been there about "no-lone zones".) The centralized command structure of the former—using nuclear-capable or stealth aircraft requires a much higher level of command authority, by law, even when not used in a nuclear mode—certainly encourages it. In other words, the nature of the "product" influences how much autonomy the "franchise" (individual unit) has.

16 December 2003

What Has It Got In Its Pocketses?
Being essentially in the middle of nowhere, there are no 0001 (that's 12:01am to civilians) screenings of The Return of the King within 100 miles of here. Thus, I will be waiting for the weekend (or possibly even next week, if I end up getting the same bug that has evaded the flu vaccine and hit both kids and the ex). Fortunately, I don't have to worry about "spoilers," as it has been over three decades since I first read The Return of the King. Well over.

   That said, I hope that Peter Jackson will not make the narrative mistake in this movie that he did with The Two Towers. Contrary to popular opinion, a three-hour movie can readily support multiple climaxes. The Two Towers, and the early parts of The Return of the King, do not hop among viewpoints; instead, we see the entire sweep of Rohan in one "book," and Frodo and Sam's journey in the other "book" (The Return of the King has a similar, if not so formal, structure). As an experiment, I programmed the DVD player on the computer to rethread those two stories in The Two Towers; despite the moderate continuity errors this introduces, it was much more satisfying literarily and structurally. Besides, the different natures of emotional investment in the storylines force one to view the climax of each story thread separately, so there were two climaxes anyway.

   One of the first "rules" that young fiction writers are taught is that "head-hopping is bad;" that is, one should not rapidly change viewpoints. Marking such changes with "Chapter 17" (or whatever), however, is merely a formalistic device to disguise the problem. Fiction is inherently linear; trying to falsely create simultaneity by inching forward multiple plotlines ends up causing more problems than it might otherwise solve.

   Yet more proof that I got too far along with that dissertation, even if I never finished it (and thus am entitled only to "JD," not "JD PhD," on my CV).

15 December 2003

There seems to be an emerging consensus overseas that, whatever the actual composition of the court that eventually tries Saddam Hussein, it must:
  • Be located in Iraq;
  • Have a significant Iraqi/Pan-Arabic judicial presence;
  • and    
  • Not even consider the death penalty.
See, e.g., "Now the Difficult Bit," The Guardian (16 Dec 03); "Konvention bietet Schutz," Frankfurter Rundschau (16 Dec 03) (implied); David Sanger, "Bush will let Iraqis decide fate of Saddam," International Herald Tribune (16 Dec 03) (contextual comments).

   With all due respect to the individual integrity of the individuals involved (or even considered), I have a great deal of difficulty with having more than a single "local" representative on such a tribunal, whether specially constituted or otherwise. Bluntly, the justice systems in Southwest Asia—not excluding Israel—are so thoroughly coopted by (totalitarian) governmental and other special interests that even a trial that is in fact perfectly fair will remain open to question. Also, in the long run, this will make "local" jurists targets for retaliation, whatever their judgments may be—and what would it say to residents of the region if the judges were forced to flee for their lives after rending a verdict?

   The real problem is that the Bush administration (and, for that matter, the UN, once it became clear that the US would act unilaterally) made no plans in advance, or certainly not sufficient plans to announce them. The major credibility problem with the Nuremberg proceedings was precisely their newness: nonspecialists (including, sad to say, some prominent historians who to this day misstate the scope of the proceedings) had no comparable context. At least in Germany there had been a realistic judicial system prior to Hitler's rise to power. No one can say that about Iraq.

A Horse's Ass
(Those of you who recall George II's pronunciation of the former Iraqi dictator's forename and also have much understanding of Arabic will understand the title.) Well, since everybody else in the blawgosphere seems to have an opinion, I'll express mine.

   The only acceptable trial will be before an international tribunal. Even if we take excrutiating efforts to ensure fairness—and, all lip service to the contrary, we won't, it's not in the nature of the kind of people who are actually placed in charge of these things—all we're going to end up with is a show trial. Just like in Cambodia. Just like in post-Revolutionary Russia. This points out one of the weird contradictions in my own character: I was a commissioned officer, still believe in those values, and yet I'm an antistatist. The lesson to be taken from Africa and the Balkans is not that all minorities (ethnic, religious, whatever) must be self-determinative to have value. It is instead that all minorities (ethnic, religious, whatever) must have a voice. That voice should be in the context of the largest administratively feasible unit.

   We are not yet to the point that a world government is administratively feasible; we're getting closer. (If we could just do something about Gallic arrogance, such as insistance that UN Presidents speak French, we might be able to get somewhere.) I certainly do not profess an American hegemony as appropriate for all the world: We have too many problems at home as of yet with intolerance, among other things.

   Although the Nuremberg trials were far from flawless, they present the best model available for dealing with former heads of state and high government officials who were violently removed from office. The "reforms" and "modifications" offered by the World Court are actually steps backward. My one bit of "Anglo-American hegemony" that I would offer is that the common law tradition is vastly and objectively superior to the civil code tradition (which nonetheless does have some things to "teach" the common law). Putting judges with little or no personal experience with common-law criminal matters, such as the majority of those currently on the World Court, may well prove counterproductive. The whole point of atrocities, genocide, repression, etc. is the creativity of tyrants in pursuit of power. Civil code systems are ill-equipped (literally and psychologically) to deal with that creativity.

   Saddam Hussein is not particularly intelligent. He does have a streak of creativity and cunning that push his particular actions outside the civil-code preconceptions at the World Court. The alternatives to using the World Court are worse, though. An Iraqi tribunal will look like something out of Haing Ngor's nightmares (that he was shot and killed in south LA in a dispute over a parking spot is proof that any Supreme Being has a really sick sense of humor). Even the best of intentions will be strongly influenced by the immediate political context. A US tribunal, given the way we've handled our "Afghani POWs" (in contravention of international, US, and military law), would be worse. So, as unsatisfactory as the World Court or a Nuremberg (specially constituted) tribunal would be, they represent the only realistic alternatives.

   No system of justice is perfect; if one takes away nothing else from Plato and the long line of serious writers on utopianism, culminating in the second-to-last story in The Wind's Twelve Quarters, it is that the greatest good for the greatest number is not conducive to individual justice. That does not mean we can stop striving for justice; it means only that we cannot point to an ideal system that will produce it.

12 December 2003

This law-school exam question (and, umm, model answer) is really, really sick. And, sadly, a lot more plausible than most law-school exam questions.

   One property question that always seems to pop up concerns "virtually certain" events and the Rule Against Perpetuities. For example, the testamentary disposition "I deed Blackacre to George, except if the Cubs win the World Series to Sammy" is a void clause, because it is not certain that the Cubs will win the World Series within a life in being plus 21 years. Not certain in either the real world or for the law—admittedly, that congruence is unusual.

The really sad thing about these "winners" in a contest to create the setting of a law-based sitcom is that they're all better than anything Hollywood has put out since Night Court. They also have more potential for the real drama of the law than virtually any of the so-called "law dramas," specifically including Law and [Dis]Order and The [Mal]Practice.
Are We Not Nerds? We Are Devo!
Even aside from the nerdishness of blogging (let alone blawging). (We'll ignore the fact that I was a hacker back when that was a good thing, because it meant my horizons were larger than making free long-distance phone calls using a blue box.) As today's Guardian notes,

   Out in the wider world, the revolution is already underway. Over the past decade, those cultural phenomena that we once filed as geeky minority pursuits have become our masters. The internet now boasts a global community numbering 679 million. Video gaming pulls in more annual revenue than Hollywood. For its part, the film industry seems increasingly in thrall to the comic-book movie (Spider-Man, Hulk), the sci-fi epic (The Matrix, Star Wars) and the wizard fantasy (Harry Potter). Next week sees the release of the final instalment in Peter Jackson's Lord of the Rings trilogy, awash with elves and hobbits and surely the most monumental nerd-fest of the lot.
   All of which raises some frightening implications. Could it be that there are more nerds today than there were before? If so, shouldn't we attempt to make friends with them sharp-ish, before they start bludgeoning us with plastic light-sabres or introducing viruses into our PCs? And then there is a further, more troubling possibility. Just what constitutes a nerd these days anyway? Might you conceivably qualify as one? Perish the thought, might I?

Xan Brooks, "We Are All Nerds Now" (12 Dec 03).

   The most on-point observation in the article, though, is the last one, because it apparently understands the distinction between a "nerd" and a "geek" (that, unfortunately, the rest of the article did not):

Back in Forbidden Planet [a famous London speculative-fiction-oriented book-and-gift shop], I run across Debra, a trainee barrister [!!] who is scrutinising the Living Dead Dolls in the Gothic section (£23.99 for the regular model, £47.99 for the deluxe porcelain edition). Debra is in her late 20s, articulate, well-turned-out, and obviously affluent. "Who cares if I'm a nerd?" she shrugs. "I'm a nerd and you're a nerd and most people you meet out on the streets have a bit of the nerd about them. We are all nerds now."

Lawyer nerds. Scary though. Especially if it wasn't self-evidently true…

11 December 2003

I went in to the doctor's office this morning. As part of the usual routine, an LPN took my temperature and blood pressure. She next was to take my pulse.

   She couldn't find it. Either wrist. She was getting rather tense, so I explained that I'm a lawyer, and therefore don't have a heart; that seemed a satisfactory conclusion. We eventually did a carotid pulse, but even that was difficult.

10 December 2003

More on the McConnell opinion, and the outline of why authors should care…

   Professor Rick Hasen's comments on the opinion bear considerable scrutiny. Professor Hasen knows more about election law than do I, and does a nice job putting things in the election context. The real problem, though—one that the Court today evaded—is the continuing vitality of Buckley v. Valeo. (I have not linked to the opinion because both of the ones available online without charge that I have found have substantial errors in them.)

   In two words, the holding of Buckley is that "money talks." Its reasoning is quite simple, if a more than a bit strained. Buckley concerned restrictions on "soft money" contributions and expenditures, just as did McConnell (today's decision). In Buckley, the Court said that some restrictions on "soft money" (general donations to political parties) could stand, but that restrictions on expenditures could not. Essentially, this treats money actually expended on a campaign as the equivalent of symbolic speech. If wearing a jacket that says "fuck the draft" in a courtroom is acceptable as symbolic speech (Cohen v. California, 403 U.S. 15, 16 (1971)), and if burning the US flag is acceptable as symbolic speech (Texas v. Johnson, 491 U.S. 397 (1989)), then this seems logical, doesn't it?

   Well, no. The distinction between these acts of symbolic speech and expenditure or contribution of money for political campaigns is simple: money doesn't talk. That is, the money by itself does not have any message, while the jacket and the burnt flag do. (Aside: I think both Cohen and Johnson were correctly decided.) This is consistent with the "government need not pay for speech with which it disagrees, even speech on constitutional rights" cases, such as NEA v. Finley, 524 U.S. 569 (1998) and the notorious Rust v. Sullivan, 500 U.S. 173 (1991), although religion seems to get a free pass (Rosenberger v. University of Virginia, 515 U.S. 819 (1995). But we're getting a bit far afield here.

   So, then, why does this matter to authors? Two reasons are obvious. First, how would we treat an exhorbitant advance paid to a political candidate (such as, say, $6 million to a candidate for Senator in New York)? Is an advance that is well above the reasonable market value of the work—or payment for an article that is well above the reasonable market value for the article—possibly a "soft money" contribution that might run afoul of some regulation? Quite possibly; and when it's not just to a candidate, but to a pundit acting as a one-person PAC, things get even more tangled. Second, does the upholding of restrictions against "attack ads" during the two weeks prior to the election mean that a book on an important issue cannot be published during that window, even if the book had been written and entered the editorial process before the most "vulnerable" candidate had even declared for office? This latter question is quite troubling; and I think that the answer is yes, such a publication schedule would at least invite scrutiny under McConnell—and, given that book publishers are often controlled by some of the same parties that Congress was seeking to control as potential corrupting influences…

Money Gets Laryngitis
The Supreme Court has just issued an opinion (PDF, 2.17mb) largely upholding the McCain-Feingold restrictions on campaign finance. If all you want to do is read the "official" summary—the Syllabus, which although prepared by the Clerk of the Court is not the law and is not precedential—you can find it in HTML format at Cornell's Legal Information Institute.

   I need to read the opinion first (it's 300 pages, perhaps proving that we lawyers never use one word when twenty-five will do); although the connection may not be immediately obvious, the reasoning behind the opinion should be of interest to authors. In fact, based upon an AP news report describing the opinion, it may have some interesting indirect effects. The real issue, in the end, is whether donations of money are speech. More discussion later, after I read the opinion.

We Don't Need No Stinkin' Frogs. Or Krauts. Or…
Or so says Paul Wolfowitz. Well, ok, we'll let them participate, but they can't be in charge of anything; they must have supervision from us or one of our friends.

   What's really saddest about this is that it isn't really aimed at punishing France, Germany, and Russia for opposing us in Iraq. That's not the way Wolfowitz thinks: he's a deterrance guy. He's trying to deter nations—particularly smaller and Third World nations who have rotating seats on the UN Security Council—from opposing US proposals for military action in the future. The French, German, and Russian economies are big enough to survive this with barely more than gnashing of teeth, particularly since companies from those nations are allowed to continue as subcontractors. Many other economies are not.

   Can you say "playground bully"? See? I knew you could.

   On a less polemic note, compare Europe after the punitive Treaty of Versailles, and the results over the next quarter of a century, with Europe under the Marshall Plan, and results over the next quarter of a century. <SARCASM> Or is nothing that we've learned in European history applicable to the Third World, because the Third World starts out less civilized? </SARCASM> It's not just spite; it's stupidity. But then, I suppose I shouldn't be too surprised (artist-authorized MP3, 2.3mb).

Company of the Damned (Almost)
The National Coaliton to Abolish the Death Penalty notes that 112 people under the death penalty have been released from prison as not just undeserving of the ultimate sanction, but substantively innocent, since 1972. That is roughly the equivalent of randomly ordering that one company—let's just say Company C, 100th Battalion, 442d Regimental Combat Team—be shot. Supposedly, this will improve discipline in the rest of the army.

   The problem is not the death penalty per se; the problem is that our system of justice is not good enough to always convict only the guilty, let alone assess the death penalty only to those who "deserve" it, even leaving aside the issue of the criteria for "deserve." Although intellectually I'd like to believe that one could construct such a system, I no longer do. I do not believe that even the best-case adversarial system, with an absolutely level playing field between prosecution and defense counsel, with a police force consisting only of absolutely unbiased and truthful and perfect judges, with definitive and absolutely reliable forensic evidence—in short, Plato's Republic (remembering that in his search for justice, he never found it…)—would be accurate enough. It is not just the difficulty of adequate maintenance for the machinery of death; it is that we can only find out about errors retrospectively, and can do little or nothing for the defendant with a death wish.

09 December 2003

That's Some Pig!
Not just the Charlotte's Web variety, but the kind that is more equal than others.

   Vanessa Blum has a remarkably even-handed article at Law.com today regarding the so-called war on terrorism, and prosecutorial tactics therein. Precisely because the article avoids much in the way of its own polemic, merely quoting the participants for its points, it pretty thoroughly undermines the Justice Department's position (at least from my perspective as a former military officer who gets really annoyed when civilians who know nothing of warfare stick their noses in too far). There are a few minor mistakes, such as the assertion that "involv[ing] defense counsel [for an Australian detainee] before official charges have been brought suggests that lawyers may be working out a plea bargain," whereas it means only that an Article 32 proceeding has been requested or initiated (the military equivalent of a grand jury, involving no jury whatsoever), but it's generally a sound article.

   The Justice Department essentially convicts itself.

   There was the same hearty cheering as before, and the mugs were emptied to the dregs. But as the animals outside gazed at the scene, it seemed to them that some strange thing was happening. What was it that had altered in the faces of the pigs? Clover's old dim eyes flitted from one face to another. Some of them had five chins, some have four, some had three. But what was it that seemed to be melting and changing?…
   [] There were shoutings, bangings on the table, sharp suspicious glances, furious denials. The source of the trouble appeared to be that Napoleon and Mr. Pilkington had each played an ace of spades simultaneously.
   Twelve voices were shouting in anger, and they were all alike. No question, now, what had happened to the faces of the pigs. The creatures outside looked from pig to man, and from man to pig, and from pig to man again; but already it was impossible to say which was which.

George Orwell, Animal Farm (1944).

Reading Raw Sewage
As Yog (Jim MacDonald) has noted (this is pretty close to an exact quote), "POD publishing means that everyone can now read raw slush!" For every purported success story of POD publishing, there are thousands of failures—because getting a book printed through a POD printer is not publishing. It is at most a vanity press operation. That the publishing industry is seriously screwed up is not really open to argument. Sturgeon was an optimist: more than 90% of everything is crap—and that's just for the published stuff. In the slush pile of unsolicited (and even of solicited) manuscripts, it's probably well over 99%.

   So ignore that Xerox commercial—still running after two years—in which the professor at the front of the class proclaims that "everyone has the right to be published," but that not everyone can—followed by a student disagreeing with him because Xerox's neato technology indeed makes it possible to be published quickly and easily. (I'll ignore the deceptive misuse of the term "published" in comparison to "commercially published" for the nonce.) Freedom of speech is one thing; freedom of intellectual pollution and meaningless treekilling is another. I have to read enough raw sewage as it is from other lawyers. I really, really don't need more from wannabe authors who not only are not ready for prime time, but haven't even bothered to get themselves ready for the late-late-late show by learning something about publishing before trying to get published.

   It is a harsh reality that writing—whether fiction or otherwise—is hard work. It can be extremely rewarding work; but it is work nonetheless. Those who won't put in the work merely generate another form of solid waste, even if all too often it manages to get consideration for publication. While I represent authors in the publishing world, I believe that more transparency in the process and greater intellectual honesty from everyone involved is in the authors' best interest, both individually and as a group. Ironically, the greatest transparency is probably in speculative fiction, one of the least-respected commercial publishing categories. The cautionary tale of Myrtle the Manuscript is a funny, but all-too-accurate, description of the process for short fiction. It's quite similar for book-length works, whether fiction or nonfiction—it's just that the manuscripts are longer, and therefore cause more back problems among mailroom staff. Even in academic nonfiction…

   And now for something completely different: a short bit of irrelevance from the depths of my nonfaulty memory (I've got notes!)… Not long enough ago, at a top-twentyish Law Review not so far away (two-and-a-half miles, in fact, but that's beside the point), I was an Articles Editor. The Articles Editor who was sticking around in town over the summer, unlike my two colleagues. Which meant I was in charge of the slush pile. Said Law Review publishes, on average, twelve articles per year; due to an anniversary commemoration, we were doing an extra issue, so we had sixteen slots for articles of ordinary length. Keep that number in mind.

   We received 947 submissions for those 16 slots. They averaged 70 manuscript pages—plus notes. All three of us had classes. I had a family (two small children) and a graduate assistantship; my two colleagues had summer clerkships. In other words, we had very little time. Thus, triage of this forest of wounded and dying trees became necessary.

   Fortunately, we had some mechanical guidelines that winnowed the pile down considerably. Keep in mind that these are professionals, who aspire to academia; that means there is no excuse for most of these problems. Of those 947 submissions, six were on the blacklist (from authors who would never be published by that journal due to past misconduct of some nature, usually involving mistreatment of the technical staff) (aside: any editor/publication/publisher who claims not to have a blacklist of some kind is lying; some are formal, some are not, but they all exist). Of the remaining 941, 86—an ironically appropriate number—blatantly violated the guidelines printed in the front of each issue of the Law Review. They might have been book reviews; they might have been case comments. (I may have been excrutiating in my recordkeeping, but there was/is a limit.)

   Of the remaining 855, 317 were not in editable English. At the beginning of the process, the three of us had agreed that this was an objective criterion on which we could agree: that we would not rewrite articles. Our general rule was that if we could not understand what the argument of the article would be after reading the introductory section and conclusion, particularly if the prose was awful, the article went bye-bye. Considering that lawyers make our living in and around the written word, there's not much excuse for this, either.

   Let's see, we're down to 538. We arbitrarily rejected everything that did not meet the substantiality standard for student notes—thirty manuscript pages, or about 5000 words. We figured that if law students had to write that much to fulfill minimum requirements (and most wrote far more), those trying to get into the more-prestigious "articles" part of the journal had to at least meet the same requirements. Thirty-two more out the window, leaving 506.

   Although we didn't have anchovy-pizza slush parties, we did dispose of a lot of the other articles pretty darned quickly. Unlike some law reviews (particularly those from other top-twentyish schools and conversely those toward the "bottom"), we didn't note the institutional affiliation of authors during this review. That varies from editorial board to editorial board; since the three of us, unusually for a board, all had substantial life experience between undergraduate education and law school, we were perhaps less impressed/influenced by institutional affiliation than others might be. Articles were rejected for reasons ranging from balance ("we've already got two other articles on bankruptcy, and they're both better") to poor reasoning ("if we, as supposedly ignorant law students, can spot the basic logical flaws underlying this argument, we're not going to publish it!") to the whimsical ("this article is 300 pages long, has 900 footnotes, weighs six pounds, and ultimately concerns management of forest products"—a sense of irony is apparently not required to get onto a law school's faculty). In about seven instances, ideology came into play. I'd be lying if I said that ideology never influences anything! That is, ideology influenced the outright rejection of about seven almost-seriously considered articles that were otherwise flawed; so far as I remember, we rejected no "good" articles on an ideological basis, but of course that's a subjective assessment.

   We eventually issued 27 acceptance letters and phone calls to yield 16 articles. (Unlike the world of commercial publishing, academics are extremely aggressive in their simultaneous submission of manuscripts.) So perhaps Myrtle had it easy. Only the details change in commercial publishing; the publisher at which I was formerly employed went through a similar process with unsolicited manuscripts, although a much higher proportion of manuscripts at that particular publisher were directly solicited.

   Raw sewage—and, as noted, there's no excuse for much of it coming from purported professionals with the written word. Now imagine that process at a commercial publisher considering unsolicited manuscripts from authors without even as much skill in English (on average) as lawyers (on average). But don't do so alone, at night, in a bad neighborhood; very few horror movies could possibly be that frightening. I can almost hear the creepy music as the mail is delivered to the overworked editorial assistant… especially the POD-printed-and-bound manuscript arrogantly masquerading as ready for publication as is… it's picking up the chainsaw… No! Don't look under the desk!