Once one gets past the lurid title and slightly condescending rhetoric born of "innate British superiority," the column in today's Guardian by Will Hutton on the Hollinger International controversy—which, given who that company controls in this country, should be of more than passing interest to serious nonfiction authors—provides some interesting perspective.

Companies were originally invented as a group of companions sharing risks in order to discharge a vital economic and social function from which they maximised profits. They would petition the crown for a licence to trade, promise that their intent and vocation was to do X and accept reciprocal obligations in return. The company thus accepted that society imposed obligations along with the right to trade and placed that above the quest for profits. For example, the East India Company in 1600 was granted a licence to trade with the proviso that it carried its cargoes in English vessels and paid duties to the crown. It then set out to maximise profits for its shareholders. It built a great business around a central vocation, accepted reciprocal obligations, and additionally made a lot of money.

This classic conception of the company, at the heart of Anglo Saxon capitalism at its best, has been wrecked by the pernicious notion, incubated by the American Right, that a company is no more than a network of contracts that maximises returns for its shareholders. The idea that it should have an organisational purpose, earn a licence to trade or accept obligations to the society of which it is part is "socialist." Yet a capitalism run along these allegedly purist principles soon loses its bearings and its companies degenerate. At their worst, like Black's Hollinger or Enron and WorldCom, they collapse under the weight of individual greed.

A company that owns newspapers thus has a choice. It can treat its assets as just another commodity to be bought, sold and sweated to enrich the shareholders. Or it can accept that it has a vocation to build and sustain the very precious thing that is a newspaper with all the obligations that implies — to readers, to journalists and to what the newspaper stands for — from which it will then aim to maximise profits. In this conception profitability results from being a great newspaper company, and it is that to which the company should be consecrated.

"Black Day for Capitalists" (29 Feb 04) (emphasis added).

Hutton's article never quite comes to grips with the underlying problem. Hutton's rhetoric is aimed squarely at what he calls "shareholder maximisation" as a target, but he left out a critical qualifier: "short-term." The real difficulty with the rules as they stand now is that they actually do recognize the difficulty of predicting the future! They have gone too far the other direction, by relying upon current and immediately past stock prices in a positive-feedback loop. Perhaps the most obvious example of this is the business-school method of using the beta statistic, which measures relative variability of return, as a proxy for "risk" when it is nothing of the kind. But the disjunctures between reality and theory are far deeper even than that. The tyranny of the quarterly report is only a symptom of other problems, most particularly the assumption that immediate gratification is the only thing that is in investors' best interests.

More Questions of Character

Paul Myers, over at Pharyngula, offers an interesting perspective on the purported "left-wing bias" in university faculty. He concludes that

The reason that you won't find many Republicans in biology classrooms is that this current crop [of Republicans] has successfully alienated anyone who knows anything about the subject. It's really that simple. And short of fielding Republican candidates who actually support preserving and studying the biological world, you aren't going to find a majority of biologists voting Republican.

"This Is Never Going to End… But Once More Into the Breach" (22 Feb 04). As someone with a foot in all four academic regions—an AB in chemistry for the Natural Sciences, an AB (and a whole lot more) in English for the Humanities, a JD for the Social Sciences, and a minor in CS and substantial professional experience for Applied Technology (aka Engineering)—I think there is a more fundamental reason that universities will, as a population, always seem more "liberal" than perhaps society as a whole.

By definition, universities and their faculty are devoted to the advance of knowledge. This certainly includes providing a base of existing knowledge to students, and studying that existing knowledge itself for further insights; but it is not limited to intensive navel-gazing in the modern university (cf., e.g., Jonathan Swift, "The Battle of the Books"). By its nature, this selects a population—not all individuals by any means; just as with evolution, these factors don't operate to transform individuals, but to transform population characteristics over time—that shares three general traits.

1. Devotion to evidence over doctrine. Although this is obviously true in the Natural Sciences (at least since the formal development of the scientific method) and in Applied Technology, it is also true for the other two regions. The key is what we mean by "evidence." In the Social Sciences—at least outside of economics—the current trend is to based theories upon intensive statistical analysis of populations. The "dismal science" still lags behind, because undergraduates learn exactly the gross national product of Upper Lower Slobbovia about evidence; but that is starting to change as "behavioral economics" begins to get a foothold in the undergraduate curriculum. In the Humanities, the problem is that what scholars consider "evidence" is not what laypeople tend to think of as "evidence." Nonetheless, the mindset is there. Almost by definition, and certainly by inclination, political conservatism tends to value doctrine over individual circumstances.
2. Recognition of outliers as legitimate. Conservatism, by its nature, deemphasizes individualismus for "social stability." (This is really a chicken-and-egg problem; walls can be undermined by insufficient attention to the quality of the bricks as easily as insufficient attention to how they interlock.) On the other hand, almost all academic work involves either inductive or deductive consideration of instances that are at the margin of present knowledge. Both the development of quantum physics and the development of postmodern approaches to literature stem from precisely such inquiries. In academic life, one cannot dismiss an outlier; one must either explain the outlier or justify excluding it from the field. Either approach, though, accepts the existence, and hence legitimacy, of the outlier. Now look at politics, and consider just how many things outside the field of immediate vision get ignored on a daily basis—and particularly so when principles such as "least acceptable excursion" are applied at the system, and not individual, level.
3. Acceptance of the possibility of error. By its nature, academic approaches beseech themselves to consider the possibility that they may be wrong. (No, smartass, the egotism of many academics themselves is not a counterexample; even when bowing down to doctrine about the orbit of young academics around academic monoliths, the monoliths still move over time.) The fact that every single academic field as taught to undergraduates in 2004 is different from that in 1904—and probably even than in 1954—demonstrates that. It is not just "changes in fashion"; a significant part of academic work beyond the freshman year in college involves implicit and ofter explicit contrast of the instructor's approach with historical approaches to the same or similar material. This also links back to the first point. Even in the most hidebound, authority-ridden fields (such as law and pre-20th-century English literature), argument from authority declines in force over time after the authority is no longer current.

There is certainly a place for conservatives in academia. In an evolutionary sense, they are actually necessary, as new "doctrine" that cannot withstand a conservative attack is mere hypothesis, not theory or fact. However, the mindset necessary to advance knowledge is population-skewed toward what we now, in this country anyway, call "liberal."

Character Defects

Judge Posner of the Seventh Circuit penned a fascinating copyright decision yesterday. In Gaiman v. McFarlane (PDF, 78kb), he made two obvious holdings, and one not-so-obvious one. On the whole, this is a victory for authors' rights, even if it does contain a small potential landmine.

The first, and perhaps most important in the light of Morris and its progeny, holding concerns when the statute of limitations on copyright infringements begins to run. Although not entirely ruling out the concept of "constructive notice," the opinion explicitly holds that none of the following, individually or collectively, constitutes "constructive notice" to the author that there has been an infringement, and therefore starts the running of the three-year statute of limitations:

• The printing of a compilation copyright notice to the compiler in the original edition, with or without notice of copyright of any contributor to the work.

  The function of copyright notice is to warn off copiers, not to start the statute of limitations running. There may be situations in which the notice just happens to put a copyright owner on notice that someone is acting in derogation of his rights. Remember that a claim inconsistent with the copyright holder's interest sets the statute running, and in particular circumstances a notice indicating that the defendant was the sole copyright holder might amount to such a claim. But not when the work is a compilation, as Spawn No. 9 plainly is. For it contains, besides [author] Gaiman's contributions and goodness knows who else's, a letter-to-the-editors column containing a number of signed letters from fans plus art work contributed by fans. As [artist/publisher] McFarlane concedes, the copyrights on those letters and on the art work are owned by the fans and his copyrighting the issue is not a claim to own their copyrights.

  Slip op. at 11-12 (citations omitted).

• The printing of a compilation copyright notice to the compiler in a later revision or reprint incorporating substantially all of the original edition, even in combination with other works ("unless there is a duty of authors to read the copyright pages of works containing their copyrighted materials—and there is not—then… the notice can affect the accrual of the cause of action only if the victim [actually] reads it").
• The copyright registration filed by a compiler in the compilation. Presumably, this would hold true even if the compiler improperly claimed not a compilation, but a total, copyright.

  In addition to the copyright notices, McFarlane registered copyright on the issues and the books. But to suppose that by doing so he provided notice to Gaiman of his exclusive claim to the characters is again untenable. Authors don't consult the records of the Copyright Office to see whether someone has asserted copyright in their works; and anyway McFarlane's registrations no more revealed an intent to claim copyright in Gaiman's contributions, as distinct from McFarlane's own contributions as compiler and illustrator, than the copyright notices did. The significance of registration is that it is a prerequisite to a suit to enforce a copyright. More precisely, an application to register must be filed, and either granted or refused, before suit can be brought…. All that is important in this case is that it is no more the purpose of registration to start statutes of limitations running than it is the purpose of the copyright notice itself to do so.

  Slip op. at 14 (citations omitted).

• Negotiations over compensation occurring after publication of the original edition, at least until such negotiations show that the compiler is claiming the original (not just compilation) copyright in a way that would place a prudent author on notice that his or her copyright was being claimed by the compiler. In Gaiman, this involved an explicit statement ("The statement 'all rights to Medieval Spawn and Cogliostro shall continue to be owned by Todd McFarlane Productions' was an unambiguous denial of Gaiman's copyright interest and therefore is the last date on which his claim could have accrued and the three-year copyright statute of limitations thus have begun to run" (citation omitted)). There are probably other ways of doing this; they just didn't appear in this matter.

In this matter, McFarlane's statement that placed Gaiman on notice of the copyright claim was in early 1999. Gaiman filed suit one month short of three years later. Judge Posner ruled that Gaiman therefore filed suit inside the statute of limitations. (This result was obvious after listening to the oral argument in the matter, at which time Judge Posner granted McFarlane's lawyer extra time and then spent it eviscerating McFarlane's lawyer.)

The second holding concerns what is necessary for copyrightability of characters.

[W]here two or more people set out to create a character jointly in such mixed media as comic books and motion pictures and succeed in creating a copyrightable character, it would be paradoxical if though the result of their joint labors had more than enough originality and creativity to be copyrightable, no one could claim copyright. That would be peeling the onion until it disappeared. The decisions that say, rightly in the generality of cases, that each contributor to a joint work must make a contribution that if it stood alone would be copyrightable weren't thinking of the case in which it couldn't stand alone because of the nature of the particular creative process that had produced it.

Slip op. at 21-22.

This does not extend to mere contribution of an idea; it requires at least some originality, albeit not enough originality to justify a copyright in the abstract, standing alone.

The minor landmine is for another time.

The Rule of Law

As usual, a Slate columnist has gone too far. I don't know what it is about Slate that encourages extreme positions. This is not to say that they shouldn't be published, because they add to the value of public discourse. It is only to wonder about the willingness of the editorial staff to question illogic. Richard Ford asserts that "[u]ntil a court decides otherwise, then, local officials are bound to uphold state law." Professor Solum rebuts this persuasively:

City officials, like judges, are obligated by the law itself. This means that when the responsible city official believes that an ordinance or is unconstitutional, she should not enforce it. Ford takes the position that the rule of law is virtually identical with the rule of judges—a proposition that is unsound as a matter of political and legal theory. The rule of law requires that we adhere to the law—and not only to what judges have already pronounced the law to be.

"Ford on the Duty to Obey the Constitution" (23 Feb 2004).

To borrow an approach from Slate, let's look at the extreme case. A military officer is even more bound to follow directives than is a "local official." Local officials, after all, aren't subject to court martial for failure to obey an order. Consider an order to raze a village in north-central Iraq. The order itself doesn't say so, but the superior officer—let's say the battalion commander, a lieutenant colonel—indicates to the company commander who will be charged with the task that this means killing civilians because they're almost all al Q'aida members, or at least sympathizers. In turn, the company commander (a captain) parrots this to the platoon leader, a second lieutenant barely out of Annapolis (we'll pretend these are Marines, not Army). The lieutenant blindly follows the order, resulting in the deaths of approximately 125 civilians.

Under Ford's theory, the lieutenant did the right thing. Those with long memories may recall something similar in the 1960s. As Lt William Calley and Capt Ernest Medina found out, their defense that they were "only following orders" was improper both on factual grounds—they didn't present much evidence that such orders had actually been given, although later investigation indicates that they most probably were—and legal grounds. The military judge ruled that even if such orders had been given, they were so clearly unlawful that an officer under the pressure of a combat zone was still required to disobey them. This ruling was undisturbed on appeal. Under Ford's theory, though, the lieutenant (and captain) would not be guilty of war crimes, but would be guilty of disobeying an order.

I'll freely admit that I have stacked the deck here a bit. The military provision actually pertains to "lawful written" orders and "dereliction of duty." In other words, even in the rigid environment of the military, one is required to at least make a surface inquiry into whether an order is lawful. This points out the reality of what military officers, and local officials, must do: they must use their judgment to apply potentially conflicting directives from higher authorities to particular factual circumstances. Whether the local officials in San Francisco are correct in their conclusions is irrelevant; Ford would make them incorrect in their inquiry. Nobody has presented evidence that the San Francisco officials have made their stand in bad faith—quite the opposite: they have pointed to a conflicting authority even higher than the statute itself. That is the opposite of what the lieutenants described above did. Ford's invocation of John Hart Ely is unavailing, because it is precisely opposed to the particular examples Ely used in forming his theory. Remember, "Jim Crow" wasn't just a practice—it was state law.

The local officials in San Francisco have been put in an untenable position by conflict between two provisions from higher authority. They have made an explicit choice of which one controls, and then adapted their actions to that choice. Whether one agrees with their interpretation is a separate question; they did their duty as local officials. If their choice proves to be egregiously wrong, there are retrospective remedies for the particular choice they made (the marriage licenses can be retroactively revoked and the officials removed from office). But criticizing them for having the temerity to act without judicial guidance when there is no judicial guidance on the particular issue is not just unrealistic; Ford's position arguably violates both the US and California constitutions. It sure as hell violates common sense. That's why we have local officials and not automatons.

Antidisestablishmentarianism,

one of the favorite "spelling bee" words in the 1960s, would be a clear and easy concept compared to the Shelby bill to "restore the Constitution" that was recently introduced. As Professor Balkin notes, the bill

is designed to pander to the far right by stripping the federal courts of jurisdiction to hear certain Establishment Clause cases, requiring that in deciding constitutional cases federal courts may not look at the law of any other nation but "English common law," and threatening impeachment and removal of any judge who defies its provisions.

"The Unconstitutional Restoration Act" (24 Feb 04). He concludes that

Although the bill's sponsors claim that they are trying to restore the Constitution in the face of judges who have disregarded the basis of American constitutional government, in fact it is this statute itself which is blatantly unconstitutional and which shows utter disrespect for our constitutional system. The Senators and Congressmen who sponsored this bill should be ashamed of themselves. They swore an oath to uphold the Constitution of the United States. They are obviously unwilling to live up to that oath and therefore they should resign.

Id.

The real problem is that the sponsors of the bill are unwilling to admit that what they want to do involves constitutional change, regardless of whether that is "restoration" or not. The Constitution, as the Judicial Power (Article III, § 2) has developed, has come to include a great deal more than the mere text of the constitution; the text is the starting point for interpretation, but not always the endpoint. The problem with the Shelby bill will be a little clearer when it is placed in a less-emotional context. Consider, for example, some recent calls to return to Lochner, which was overturned in the 1930s. Under Lochner, it would be virtually impossible to regulate working conditions, because such regulations would impair the "freedom of contract" of the individual laborers. Let's hypothesize a bill that, perhaps without naming Lochner itself, in practice reverses almost seventy years of doctrine. The logical question here is whether that would represent "constitutional change." If it does, then the proper means of accomplishing it is by amending the Constitution. The concept of "supremacy within respective spheres of action" governs here. Congress cannot by statute overrule a provision in the Constitution. If the Judicial Power means anything at all, Congress cannot by statute overrule a Supreme Court decision interpreting the Constitution.

The real point is that Shelby et al. would rather have the Judicial Power mean nothing at all. They instead want the Constitution to be interpreted solely through (their vision of) the current majority rule. To them, that this contradicts virtually everything in Article III that is designed to keep the courts from becoming playthings of mob rule is irrelevant; to me, it is the point.

Shelby and his cronies did not have the intellectual honesty to admit that they want to change the Constitution. If they did, they would have introduced an amendment to accomplish the same purposes. That this would have been politically inexpedient, because it admits that change is required (regardless of whether the change is to "correct" misinterpretation), and their position is that change simply shouldn't happen. Which, of course, leaves the question of why the Constitution has provisions built into it regarding amendment.

Pigs in Pokes

There was a fascinating article in today's Observer on the practice of buying books on spare synopses. Whether the British numbers are slightly ahead of or slightly behind the American numbers is irrelevant; the practice is very similar indeed.

A truly surreal moment on the radio today: right after a news report mentioning the Martha Stewart trial, there was a Martha Stewart commercial beginning something like "Have you ever had one of those annoying moments when you can't leave somewhere?" I'm afraid that the new color of the dashboard is coffee.

Over at FindLaw, Professor Vik Amar (Hastings) completed a provocative two-part series on jury reform. The articles (part 1) (part 2) are well worth a look.

I have considerable personal experience with peremptory challenges—as a juror. Or, rather, potential juror. I have never been called to a civilian court (and, absent a medical situation, I would welcome the opportunity). I was selected for the initial panel of courts-martial over forty times. I was peremptorily challenged off those panels thirty-seven times, generally for a single reason: during that time, I was on command orders. In the community of military defense counsel, there is a perception that commanding officers will always vote to convict and throw the book, just on the word of their counterparts in other units. Silly me—I thought I was supposed to listen to the evidence and decide based on the evidence alone. (I also note that one of the four panels I did serve on acquitted the defendant—and the conviction rate in peacetime courts-martial is well over 90%.) At least in a court martial each side gets only a single peremptory challenge. That is one too many, for many reasons other than those noted by Professor Amar.

Judicial Activism

<SARCASM> Yeah, the gay marriage issue is all the fault of activist liberal judges. </SARCASM> So, then, does that make Bull Connor an activist reactionary elected official? Or Richard M. Daley an activist anything?

What I find most disturbing about the whole "gay marriage" argument is what it reveals about the priorities of those who are up in arms about it. On the one hand, those most adamantly opposed want to waste the government's time and effort on opposing perhaps the most victimless of imaginable victimless crimes: the marriage of individuals not involving themselves (or even, necessarily, their families). Leaving aside the obvious parallels to miscegenation, the torrent of sound and fury on gay marriage contrasts rather starkly with the silence on, for example, the greatly increased propensity to commit (or at least be convicted of committing) violent crime associated with grossly inadequate inner-city school systems. The irony that many educators think that family involvement is the single greatest determinant of educational success, and the Disloyal Opposition is trying to prevent family formation while simultaneously blocking every effective effort at reform and improvement because it would cost too much, itself points to a problem with priorities. What that crowd really seems to want is not respect for, but universal conformity with, their preconceived notions of morality. If that really is their priority, that's their business; but trying to pretend that the priority itself is content-neutral is not.

On the other hand, the most rabid pro-gay-marriage forces can be just as bigoted as their opponents. Again, this is most apparent in an absence of respect for alternative viewpoints. A strongly held moral belief that gay marriage is wrong is not a sure indicator of someone who supports summary execution of gays—but that is the rhetoric one hears all too often. Similarly, "marriage" is hardly the most critical issue confronting the GLB community, even in the narrower sense of civil rights.

I think I am expecting far too much honesty from politicians again. For that is what this is about: it is not religion, or morality, or concern for future generations of children; it is about raw, naked power. That some of the individuals on each side are operating from any of those concerns does not change the nature of the entire debate, nor the reprehensible bigotry (on both sides) of most of the major public leaders.

I'm going to be a bit scarce for the next few days; I slipped on some ice and sprained my wrist catching myself. Voice recognition only goes so far…

Treating the Symptom

I'm going to pull a random CD out of my collection (not completely random, as it will be so-called "popular music" from the last 15 years) to show what the real problem with the music industry is. Don Henley alluded to it indirectly in his opinion piece in the Washington Post yesterday:

So whether they are fighting against media and radio consolidation, fighting for fair recording contracts and corporate responsibility, or demanding that labels treat artists as partners and not as employees, the core message is the same: The artist must be allowed to join with the labels and must be treated in a fair and respectful manner. If the labels are not willing to voluntarily implement these changes, then the artists have no choice but to seek legislative and judicial solutions. Simply put, artists must regain control, as much as possible, over their music.

"Killing the Music" (17 Feb. 2004).

I just pulled a copy of Suzanne Vega's 1990 CD Days of Open Hand from the shelf. It bears the following copyright notice, and only notices elsewhere in the packaging consistent with this notice printed on the CD itself:

Produced by Anton Lanko and Suzanne Vega (P) © 1990 A&M Records, Inc. All rights reserved. Made in the U.S.A.

By comparison, pulling a recent first-time novel off the shelf, we find this notice:

All rights reserved. © 2001 by Ken Wharton [the author].

In terms of power relationships, Suzanne Vega in 1990 had a great deal more relative power, following up on a critically acclaimed and commercially successful album (Solitude Standing), than did new writer Ken Wharton, whose novel was accepted for publication before his first professional sale of other fiction. So, what gives? Why are musicians treated like employees and authors like artists? And does Henley's well-presented and well-taken objection to continued consolidation in the music industry treat the cause or the symptom? Does the title of this posting give away my answer?

Can you guess that this is another pathetic cliffhanger, on a subject I've alluded to previously?

More Electioneering Over Sense

There was an interesting article today on the gays in the military issue today in, of all places, Newsday. The article discusses a number of flag officer who "came out" relatively recently. (Given the time lapse and Newsday's usual practices, for that paper it's "relatively recently.")

…Adm. John Hutson, 56, who was a judge advocate general — the top legal officer of any service — joined their open dissent. The former Navy officer, a heterosexual who has been married 35 years, asserted recently in an exclusive Newsday interview that "don't ask, don't tell" undermines core U.S. military values. "It exacts a huge cost in dignity and respect from gays, who are forced to conceal their true sexual identity," said Hutson, who ended a 28-year naval career several years ago to head the Franklin Pierce Law Center in Concord, N.H. "It also detracts greatly from the esteem in which our military has been held by the international community, many of whose members allow such people to serve."

Arnold Abrams, "Ex-Officers: Military's Gay Policy Outdated" (17 Feb. 2004) (emphasis added; fake paragraphing removed for clarity).

Now compare this to the clear misconduct going on at the Air Force Academy—heterosexual misconduct in the main—and ask yourself which kind of conduct is more harmful to the military: consensual sexual relations between adults or heterosexual rape? I spent the better part of a decade as a commanding officer, and never used the then-equivalent of AFI 36-3208 § 5G (enlisted, then known as AFR 39-10 ¶ 5-11(h)) or AFI 36-3207 § 1B (officers, then under AFR 36-12). I had too many problems with heterosexual misconduct in my units to waste effort on witch hunts.

Review of 10 U.S.C. § 654 is enlightening:

[(a)](2) There is no constitutional right to serve in the armed forces.

(3) Pursuant to the powers conferred by section 8 of article I of the Constitution of the United States, it lies within the discretion of the Congress to establish qualifications for and conditions of service in the armed forces.

(4) The primary purpose of the armed forces is to prepare for and to prevail in combat should the need arise.

(5) The conduct of military operations requires members of the armed forces to make extraordinary sacrifices, including the ultimate sacrifice, in order to provide for the common defense.

(6) Success in combat requires military units that are characterized by high morale, good order and discipline, and unit cohesion.

(7) One of the most critical elements in combat capability is unit cohesion, that is, the bonds of trust among individual service members that make the combat effectiveness of a military unit greater than the sum of the combat effectiveness of the individual unit members.

*  *  *

(15) The presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.

These statements are all in the "findings of fact" part of the statute, which is virtually unreviewable. These findings of fact were made by persons who had never served in combat after stacked hearings. They would be thrown out by a court of appeals had they been made by a lower court. But what is most enlightening is the structure: it takes fourteen findings of fact before getting to that crucial fifteenth one. In argumentation, a chain of inference that long is usually a sign that some or all of the intermediate facts are known to the speaker as being of dubious value. For example, item 5 is a non sequitur — remove it from the chain and you've lost nothing. It is clearly an element of item 4, since the word "combat" implies "possibility of death or maiming". Instead, what this structure does is bury the controversial assertion —it doesn't even qualify as a "legal fact" — in the hope that eyes will glaze over before reaching it.

Yep. That kind of disingenuousness really improved my morale, enabled me to ensure good order, discipline, and unit cohesion, and helped create bonds of trust among individual service members. We're supposed to protect the Constitution against all enemies, foreign and domestic. So, by the terms of this statute, we have to consider that some of ourselves are the enemy. Whether those enemies are the ungodly homosexuals in the service or the moronic legislators is above the pay grade of most service members — but not above mine. I was a commissioned officer, which requires me to always ensure the lawfulness of orders I gave or followed. That did not always mean a formal legal review; but it meant a much more searching inquiry than that performed by William Calley and Ernest Medina.

UPL, MJP, and Other Antitrust Nonsense

There was an interesting article at law.com today on Connecticut's latest antitrust violation concerning lawyers.

Since there's no wiggle room in the law that prohibits out-of-state lawyers from practicing in Connecticut, the New York and Washington, D.C., superstars just picked by Connecticut Gov. John G. Rowland and the legislative panel considering his impeachment may be in a bind. According to six Connecticut ethics experts, the state statute on the unauthorized practice of law is simple and unforgiving: Without a Connecticut license, anyone practicing law in the state is engaged in the unauthorized practice of law. Although misdemeanor criminal penalties were dropped for in-house lawyers, the harshly-worded statute presents a potential problem for others.

On Feb. 11, Rowland's office announced he had hired Seth P. Waxman, of Washington's Wilmer Cutler Pickering. Waxman, a former solicitor general with stellar credentials, is only admitted to practice in the District of Columbia. Later that day, the Connecticut General Assembly's Joint Committee on Inquiry chose Steven F. Reich, of Manatt, Phelps & Phillips in New York, who is admitted in New York and D.C. If either the legislative impeachment panel or the governor were involved in a court case, Reich or Waxman could doubtlessly be admitted pro hac vice, noted one Hartford-based ethics lawyer. "The problem is, there's no court case going on here. And it's not clear that [Waxman or Reich] are planning to meaningfully associate with Connecticut counsel in any way," he said, wishing to remain anonymous.

Thomas B. Scheffey, "Do UPL Restrictions Apply to Impeachment Lawyers?," Connecticut Law Tribune (17 Feb. 2004) (fake paragraphing removed for clarity).

The Connecticut bar is one of the worst offenders in terms of antitrust violations. The excuse that "this isn't antitrust, it's ensuring to the public that their lawyers are qualified" is disproven by the high concentration of a single industry (insurance) in the state and corresponding specialization in the bar. This really isn't about unauthorized practice of law; it is about multijurisdictional practice. Leaders in the Connecticut bar have explicitly opposed opening up the rules to allow out-of-state lawyers to perform legal functions precisely because they're afraid that their fees might be affected by out-of-state lawyers working for lower prices. Of course, if that specialization is really worth anything, they'll still be able to demand higher fees.

Leaving aside the "full faith and credit clause" issue, the Attorney General should go after the bar on antitrust grounds. Wait a minute—if there is one thing that lawyers do in absolute lockstep, it's protect their gravy trains. Nonetheless, this is one of the best arguments I've yet seen for licensing lawyers nationally instead of state by state—even though it's not put in those terms.

Micromanagement by Microbrains

Disney is a mess. As the Perfesser understates

First, Disney was a much smaller company when Walt ran it. Micromanagement rarely is a successful business model in any firm, but it has more of a fighting chance when the business is small enough for top management to dust the trees without losing sight of the forest. Second, Eisner isn't anywhere near as skilled at micromanagement as was Walt. In fact, Eisner may be one of the most overrated executives in recent history.… Eisner may yet prevail, but if he does it will once again be Disney shareholders who pay the price.

"Micromanagement as Business Model: Walt v. Eisner" (16 Feb 2004) (long block quotation removed).

It's not just that Disney was smaller; it's that Disney was essentially in only two industries during Walt's day: studio-produced audiovisual content provider and theme-park operator. Neither was a regulated field. Now Disney is in several regulated fields, in addition to that preexisting core. Live sport programming (ESPN, part of Capital Cities/ABC)—in fact, live anything programming—has some minor regulatory issues of its own, but now Disney must also cope with broadcast regulation (radio and TV), cable television franchising issues, substantially expanded international markets with all of the import/export regulations that implies… the list goes on. Micromanagement is bad enough in a concentrated organization; it's far, far worse when business/operational lines diverge. I've seen this in action in the military too damned many times to believe that micromanagement gets worse with diversity only in manufacturing environments (the most-common excuse I've heard for micromanagement in the modern economy).

That's leaving aside Eisner's, umm, personality. (Q: What do lawyers use for birth control? A: Their personalities.) I cannot think of a worse personality for someone who is supposed to be leading creative people. As badly as most of us respond to micromanagement, it's worse for artists and writers, who put substantially more of themselves into their work than most of us do (or, in a broader sense, perhaps they should…). Second-guessing of creative work isn't just criticism; it is distrust for the skills of the employee in a very personal and obvious sense. And, of course, management seldom will accept that it is to blame for the problem of not getting what it wanted. If it had clearly communicated expectations before the project began, the end product would be at least closer to its initial vision. On the other hand, as crappy as Disney's product has been for the last three decades, that may not be a good thing!

It's not just the stockholders who are losing. It's everyone in the entertainment industry, because Disney is big enough that its problems impact everyone. That's a lot of people who don't even have the voice that stockholders have.

Incomplete

Over at the Tech Law Advisor blawg, Mr. Heller made the following remarks:

[Another blawger] cites the very important Feist case wherein the Supreme Court "made clear that plain effort does not constitute the originality required by the Constitution's Copyright Clause. Rather, directories and databases must exhibit "some minimal degree of creativity" in order to qualify for copyright protection."

As [the other blawger] states, the Copyright Clause requires original expression and draws the line at protecting facts. Simply stated it is unconstitutional to protect databases that are merely collections of facts. Copyright Clause and Supreme Court cases dating back over a hundred years say so.

[The other blawger] also addresses those who cry that databases fall under the Commerce Clause stating that: "Databases do fall within the Copyright Clause — and that means that they must be protected to the extent — and only to the extent — as other writings." Moreover, no less a copyright scholar than my old Professor William Patry will tell you that: "[t]he public's constitutional right to copy unoriginal material is not limited to cases in which Congress legislates under the Copyright Clause… the Constitution guarantees the public to protect against any congressional effort to provide rights to creators of unoriginal materials."* He means facts people!

"Copyright and the Constitution" (11 Feb 2004).

With all due respect to Mr. Heller and those he quotes—and not proposing this as policy, because I think it bad policy!—the analysis of the Commerce Clause question is not sound. Article I, § 8 is a list of positive powers that Congress has. A number of these powers overlap; others do not. The Necessary and Proper Clause allows Congress to fill gaps. See, e.g., McCulloch v. Maryland, 17 U.S. 316 (1819), and discussion at 68-99 in this book. The powers in Article I, § 8 are disjunctive; that is, no power necessarily modifies any other power in that section. (The prohibitions are in § 9 and a few other places.) Clause 8 (the Intellectual Property Clause) does not specify protection for trademarks and trade secrets. This in no way has prevented Congress, under its Commerce Clause powers, from establishing such protection, and should not be so read.

There certainly are restrictions in the Constitution against "congressional effort[s] to provide rights to creators of unoriginal materials," but they are not in Article I, § 8. In other words, they relate to the Intellectual Property Clause only by implication and interaction with it. For example, the "prior restraint" doctrine in First Amendment law certainly applies to anything that Congress does. Thus, "prior restraint" must be extremely narrowly tailored to pass scrutiny; the complexity of litigation on prepublication injunctions in copyright infringement actions demonstrates this more than adequately. See, e.g., Suntrust Bank v. Houghton Mifflin, Inc., 268 F.3d 1257 (11th Cir. 2001) (unpaginated version) (rejecting preliminary injunction application against The Wind Done Gone). But that by no means indicates that no protection at all can be provided against "expression" that infringes a right found in the common law or established by Congress pursuant to its powers.

I wish I could conclude otherwise. I think that database protection is a very, very bad idea. But, except in those instances in which the First Amendment provides a legitimate bar, the interplay between different clauses in Article I, § 8 does not bar database protection. That section is positive empowerments; and, as "negative Commerce Clause" jurisprudence demonstrates, absence of specific authorization does not mean absence of power. The Copyright Clause does not authorize indefinite copyright terms, so "permanent copyright" as Her Majesty's government has accorded Peter Pan would be out of bounds. However, neither does the Copyright Clause imply that that only kinds of protection possible for written (or otherwise) expression are the "limited time" rights in the Copyright Clause.

We are then into the morass of exactly how far legislation may go in creating "copyright-like" protection for uncopyrightable works; but that is a different inquiry from the core question of whether Congress has the power to enact a hypothetical statute that in some way protects databases. <SARCASM> That doing so would be exceptionally stupid and would benefit only a few parties while harming a great many others only increases the probability of eventual passage. </SARCASM> As a specific example, under the Commerce Power Congress may step in to regulate the exact contents of software license agreements. It might, for example, increase the scope of the Federal Arbitration Act, 9 U.S.C. § 1 et seq., to specifically include databases. Whatever one might say about the silliness and other problems of ProCD v. Zeidenburg, this is not a valid ground for criticism!

The one place that Congress might be prohibited from acting is in providing copyright-like protection to material that Congress has otherwise disclaimed, such as official works of the U.S. government. But that is for another time. On the question of raw power to act, unfortunately, it seems fairly clear that Congress has it. The constitutionality of particular proposed statutes is also another question; but it does not implicate the power to consider action in the abstract.

Holiday Blahs

Well, not so much for me. With the kind of clientele I have—authors who mostly must have a day job—I can't keep normal "office hours." At least half of my client contacts are by phone during evenings and on weekends, and that's not even counting the handful of overseas clients I have who contact me during their business hours (when I'm probably working or available anyway).

What holidays do mean is extra days off from school for the kids. As a single parent, that's always fun and exciting, or at least exciting. At the moment, he's off communing with the dogs watching a movie (imagine two large dogs and one eleven-year-old in an armchair). It won't last.

The other blah is that I'm starting to get clerkship applications from law students again. The USPS holiday does not eliminate e-mails with attached resumes! Every year, I get six to ten of these things, usually from first-years who want exposure to IP stuff. Leaving aside that I'm a solo practitioner, the applications reflect some real ignorance in career-services offices. It is especially difficult to get clerkships in IP, for some good (and other not-so-good) reasons. Then there's the whole issue of whether solo practitioners would be interested in blind applications. So, guys, save yourselves at least one stamp or e-mail attachment: I'm not looking. I won't be looking this year. And, for confidentiality reasons, I doubt that I'll ever be looking—and even then, I will work through the College of Law (at least as long as I'm in this area) and will probably want assistance with a specific task only.

Marooned

And certainly not on Survivor Island. (As one of the three people in the Western world who has never seen an entire episode of Seinfeld or of Survivor, I can vouch for that.)

I have just a few sarcastic remarks on the intelligence (or lack thereof) of some major computer-information vendors. Consider, for example, the disdain for footnotes and their proper treatment. For example, Lexis pulls footnotes out into separate paragraphs, with the notes for each paragraph at the end of the paragraph and really funky margins. Nonetheless, Lexis insists on defaulting to "two-column" printing and file downloads whereever possible, even when downloading the documents in a word-processing format that includes native handling of footnotes! To say the least, this is very difficult to read, particularly on screen. The programming to correct this is trivial, but a serious annoyance, because determining which version of any program to run requires human intervention (there are too many inconsistencies in Lexis formatting). Sadly, WestLaw is worse, with its insertion of the usually inept keynotes into the document.

Continuing to rag on Lexis for a moment, the LexisOne service is worth exactly what one pays for it: nothing. There is no internal pagination in the documents, and about half the footnotes have missing text. Given that one of the mandatory rules of legal citation (BlueBook or otherwise) is that references must pinpoint at least the exact page number of the material, this is rather dumb—especially since LexisOne is merely a subset of the actual Lexis service, using the same databases with different transforms for display. In other words, the information is already in the files, and LexisOne merely takes more computer power to strip out useful information.

While we're at it, let's hear it for journals that tout their "full text online" features and don't include everything. It's one thing for Lexis and Westlaw to miss out on graphics; but there's been no excuse since the early 1990s for line graphics being absent on the journal's own website, if the journal is offering access to full text. If there's a copyright issue with a particular photograph, that's one thing; but universal absence implies that the graphic was meaningless in the first place. This is not limited to law journals by any means. The phrase "bait and switch" comes to mind.

Professor Jack Balkin has posted some very interesting material in the last day or so. In no particular order,

• If anything, his comments concerning Halliburton contracts in Occupied Iraq understate the problem, particularly in a historical context. Despite the fact that the Marshall Plan represented something that had never been done before, it was much more orderly and much more fair. It was not perfect; but it was better than no-bid. For an excellent contemporanous look at James Canan's The Superwarriors (out of print, but try ABEBookSearch).
• His reaction to the proposed Federal Marriage Amendment was much the same as mine: flunk the SOBs who drafted it. Leaving aside its inconsistency with half a dozen or so other Constitutional provisions and doctrines—some of which might really upset "government-minimalist social conservatives" if they even thought about them—it is so badly drafted, and internally inconsistent, that a court would be justified in throwing it out as impossible to implement, even under the doctrine that courts should try to find an interpretation that will allow enforcement.
• I can't improve on his concise statement of the future detention problem at GITMO. I can be louder, and I can possibly provide more detail; but I'm not very good at soundbites. This is as substantively good as a soundbite gets—and a marvelous contrast to the preceding item.

Boardinghouse Reach?

The reach of US litigants on antitrust grounds might be growing larger, although I thoroughly expect that a Third Circuit decision announced today will be reviewed by the Supreme Court. In In re Automotive Refinishing Paint Antitrust Litigation (PDF, 112kb) (3d Cir. Feb. 13, 2004), the US Court of Appeals for the Third Circuit in Philadelphia ruled that the reach of US courts for asserting antitrust jurisdiction and for obtaining discovery includes corporations in Germany. Why might this matter to authors? <SARCASM> Hint: Name two media conglomerates, both closely held German corporations, that between them control 40% of the trade publishing market. </SARCASM>

This is not for all lawsuits, but particularly applies to those lawsuits under the Clayton Act (one of the two major antitrust statutes). Without getting too technical—given the context, that means "skimming the surface only"—the most important consideration is the discovery provisions. German chemical giant BASF asserted that it was not subject to jurisdiction in Pennsylvania (although the case is actually a consolidation of 63 lawsuits from five different states, and was moved to Pennsylvania by court order), then stonewalled discovery requests attempting to prove that in fact jurisdiction did lie in Pennsylvania. BASF asserted that discovery in Germany is a judicial function—that is, it is done by judges, not parties—and that the requests for documents from Germany therefore would upset the "sovereign functions" of Germany. Instead, according to BASF, the parties should have gone through the (my characterization) excrutiatingly slow, horrendously expensive, and largely ineffective procedures offered by the Hague Convention to get their information. The Third Circuit rejected this position:

The appellants and their supporters argue generally that Germany is a civil law country where the gathering of evidence is a judicial function and that pursuing discovery without resort to the Convention may be deemed an affront to Germany's sovereignty.… [T]here is no reason to assume that discovery under the Federal Rules would inevitably offend Germany's sovereign interest because presumably Germany, like the United States, would prohibit the alleged price-fixing conspiracy and would welcome investigation of such antitrust violation to the fullest extent.

Id., slip opinion at 18.

This may, as noted above, have some potential cascading effects on the publishing industry. One of the major difficulties with evaluating Bertelsmann's extent of control is that it is a closely held corporation that need not make even the lax reports required of German publicly traded corporations. One can only wonder what this might mean during the next round of media-industry consolidations…

Pot—Kettle—Black

The Perfesser wonders, in a persuasive series of posts up to yesterday, what the point of criticizing Bush's military record might be. I am afraid, Perfesser, that your intellectual honesty is preventing you from understanding the deviousness behind this. It has, as usual with anything inside the Beltway, more to do with appearances than with substance.

The potential attacks on Bush's military record—and I remain amazed that nobody has gone after the single most-important set of records—might seem somewhat satisfying to Democrats still fuming at the attacks on Clinton's change of heart over becoming an officer. (Frankly, I think Clinton did the right thing, presuming the truthfulness of his change of heart; I didn't want as colleagues people who questioned their very purposes as officers.) As the Perfesser points out, no retroactivity is involved. It is, instead, a preemptive strike to keep the issue from being used against any Democratic candidate. The only reason that the attack on Clinton had any real legs at all is that he faced an individual (George II) who did not have problems with his own military record. The issue is not "youthful indiscretions"; again, as the Perfesser points out, what matters is current character. At worst, George III did something that a lot of children of privilege did during the Vietnam era; and that privilege goes down a lot farther from the top than one might think. The point of attacking Bush's military record is to prevent his campaign from doing the same to others by making plausible some same-brush tarring.

What I find much more disturbing (and, again, far from unique to this administration) is not the substance of the complaint, but the pretty clear dissimulation and pretty wishywashy possibilities of a "cover-up" by the staff. As Jack Balkin notes, George III is not exactly an idiot. The problem is that, somewhat like his father—and, more to the point, disturbingly like Emperor Ronald I—he gathers people around him of dubious trustworthiness and "leaves the details to them." It's not the delegation that's the problem, as proper delegation is essential to good leadership. It's the choice of to whom to delegate tasks. For example, the decision to delegate a major effort on forming energy policy to Vice President Cheney was remarkably unwise, because there was a clear appearance of a conflict of interest. It now appears that the issues surrounding the President's military records were also unwisely delegated. It's part of a pattern; it's far from unique to any administration of either party (anybody remember Bert Lance? I sure do); and it is nonetheless deeply, deeply disturbing.

I have no reason to believe that John Kerry, or whoever becomes the Democratic candidate, will necessarily be better than the last five administrations at proper delegation to the right people. On the evidence that is emerging, however, it is hard to believe that Kerry would be worse.

There was a fabulous interview in yesterday's Guardian with Ursula K. Le Guin. Highly recommended, particularly for iconoclasts.

Hard Cases Make Bad Law

Yesterday, the Ninth Circuit heard oral argument in US v. Cohen, No. 03-16319 (WMA, 6mb), concerning whether an entire book could be blocked from distribution because the book contains a fraudulent exposition of tax-evasion theories and schemes. As anti-fraud and pro-consumer-protection an approach I ordinarily take, there is a distinct difference between attacking the commercial elements of a book—claims used for marketing purposes that tend to deceive, such as misstatement of the author's identity or misstating the financial returns achieved using the investment strategy touted in the text—and censoring an entire book because it proposes an unlawful course of action that does not place any individual other than the person who engages in the activity at risk.

This is not an easy case. (I am not naming the infamous tax evader to keep antitax activists from getting the incorrect impression that this blawg contains antitax information.) There is no question that the book in question has no legal foundation whatsoever. Can the book therefore be censored by the US government on the grounds that it allegedly incites unlawful activity? I think the law is—rightly—pretty clearly against that position. However, there is an alternative avenue that I don't think anyone has looked at. Naturally enough, the particular factual context makes this even more difficult.

Unauthorized practice of law ("UPL") statutes are intended to protect the public from purported "legal advice" from nonlawyers. This can lead to overreaching, such as the Texas' UPL Committee's attempt to charge NOLO Press with UPL. However, there is a critical distinction between the NOLO Press matter and this one: the authors of NOLO Press books are, in fact lawyers; they merely are not licensed in Texas. The author of this particular tax guide, however, does not appear to be a lawyer licensed anywhere. On the other hand, there is a long tradition of nonlawyer tax professionals, such as CPAs, writing tax-advice books. (Some of them are even worthwhile!) So, then, merely saying that the book provides legal advice from a nonlawyer may be crossing the line to unreasonable extension of tax-collection efforts, particularly as the government has conceded that the majority of the book is political speech and the book apparently contains warnings that the author went to jail for filing returns as he advocates.

This is a troubling matter. I think that the best approach would be for the Nevada bar regulators (as everything appears to take place in Nevada) to look at the book from the UPL standpoint, and see whether it falls within that scope. The IRS, however, is absolutely the wrong party to try to suppress the book, particularly as the IRS's own reputation for accurate advice is somewhat suspect. Then there are the problems caused by the nonacquiesence doctrine… but that's for another time.

More Antitrust Follies

So, Comcast wants to buy Disney, eh? This is a perfect example of the insidious nature of media/entertainment mergers. It's bad enough that Capital Cities/ABC, a Disney division, also include ESPN and a number of other leading providers of cable programming; and that elsewhere in the empire there are substantial creators of properties. Disney itself is a walking antitrust violation. But now, adding yet another step in the distribution chain to the vertical integration seems too much even for the Justice Department.

Or, at least, it would be if I had anything to say about it. But at this stage, I don't. I will, however, make comment through the clearance system at the appropriate time.

This is what happened in Ellison:

• The Court of Appeals affirmed the District Court's ruling that we had presented enough evidence to go to trial on contributory infringement.
• The Court of Appeals affirmed the District Court's ruling that we had not presented enough evidence to go to trial on vicarious infringement, but substantially narrowed the District Court's reasoning.
• The Court of Appeals reversed the District Court's ruling that we had not presented enough evidence to go to trial on whether AOL can claim any DMCA safe harbor. We asserted that a jury could find that AOL's "black hole" for notification of infringements was not reasonable. In very strong language, without even reaching the other evidence, the Court of Appeals agreed.
• The Court of Appeals affirmed the District Court's ruling that USENET servers provide transitory communications under § 512(a), not stored communications under § 512(c). We believe this is incorrect, and are somewhat puzzled that both the District Court and Court of Appeals completely failed to acknowledge the Fourth Circuit's contrary holding. However, this matters only if we go to trial and lose point 3; if we win that, this issue will not even be reached.

On the whole, we're pretty pleased with the opinion, particularly since significant parts of the opinion essentially quote from our briefs. So, then, what comes next? Both sides now have ten days (that is, until 20 February) to file a request that the Ninth Circuit rehear the matter en banc, in a panel of eleven instead of three judges. If nobody makes such a filing, shortly after that the mandate will issue, which officially sends the case back to the District Court for further proceedings. There is also the possibility of a petition to the Supreme Court for certiorari, within ninety days. Thus, I expect no trial activity before the end of the summer, and depending upon other motions not even then; and there always remains the possibility of settlement.

Ellison v. AOL Decided Today

I am still reviewing the decision; but we won on one of the critical issues. You can get a copy of the slip opinion directly from the Ninth Circuit's website: Ellison v. AOL, Inc. (PDF, 85kb).

Waivers of Jury Trials By Contract

… appear to be unenforceable under the California constitution (PDF, 139kb). At least according to one California court of appeals. The interesting question that this raises is whether the California constitution can potentially overrule the Federal Arbitration Act, which is another form of "waiver" of a jury trial. Ordinarily, the knee-jerk reaction is to say "absolutely not under the Supremacy Clause in Article V." But… there is a long line of decisions that indicates that states may choose to provide greater rights to citizens than afforded in the US Constitution, particularly when those rights are essentially procedural in nature. Hmm. I smell a law review article here. How about it, Professor Gorman? See Robert A. Gorman, The Gilmer Decision and the Private Arbitration of Public-Law Disputes, 1995 U. Ill. L. Rev. 635 (edited by me).

Bad Writing

The Perfesser gave a short corporate law quiz yesterday. He asked what the following clause in an employment agreement means:

"Cause" shall be defined as Employee's conviction, by a court of competent jurisdiction, of a felony, theft of Company property, or a crime of moral turpitude, or gross negligence in the performance of Employee's duties.

"Contract Interpretation Quiz" (08 Feb 04)

As he noted, the Corporate Law Blawg provides a detailed justification for using clause identifiers. Although this is a perfectly valid solution, it still results in really bad writing. First, it assumes that a list must be a single sentence. It's certainly an easier-to-parse sentence; but it is the kind of sentence that will glaze over the eyes of the people who most need to read it. Lists are lists; treating them like sentences results in dependent patent clauses, which make the Perfesser's example seem like child's play.

Let's assume for the moment, though, that some quirk in local law requires that everything appear in one sentence. There is still a better way to handle it: invert the order of the list. Merely inverting the order removes all ambiguity:

"Cause" means either gross negligence in the performance of Employee's duties or Employee's conviction, by a court of competent jurisdiction, of a felony, theft of Company property, or crime of moral turpitude.

Although not elegant (even after substituting plain English for legalese), this revision is unambiguous. It is based on one of the rules of good writing: unless there is a causal or temporal need for a specific order of a listing that includes dependent or compound elements within a single sentence, put the longest one last. This is even more important when there are both conjunctive ("and") and disjunctive ("or" or "exclusive or") elements. Here's a D- in basic composition to the lawyer who drafted the clause (it's not an F, because it is still possible to make a pretty unarguable interpretation of the clause; one doesn't get "convicted" of "gross negligence," so the "gross negligence" must be a distinct condition from the three criminal convictions). Obviously a graduate of Harvard.

Boiling Blood

This item at TalkLeft made my blood boil. The records request reflects considerable incompetence by the counterintelligence people involved in the "investigation." Let's pretend for the moment that requesting a list of attendees at an academic conference, or even a nonacademic conference with an academic element sponsored by a recognized institution of higher education and/or scholarship (such as, say, the American Enterprise Institute), does not implicate civil rights of anyone involved. The participants' rights are not involved; the audience's rights are not involved; the institution's rights are not involved; the sponsoring organizations' rights are not involved. Thus, we don't enter the quagmire of interpretation that one finds in the NAACP cases, which are among the most poorly written in all of First Amendment associational-freedom jurisprudence. See Louisiana v. NAACP, 366 U.S. 293 (1961); NAACP v. Alabama, 357 U.S. 449 (1958).

As unrealistic as that assumption is, it allows us to look at the substance of what was requested, and ask what reasonable counterintelligence purpose that might serve. TalkLeft described the subpoena this way:

The subpoena asks Drake University for all records relating to the November 15 conference, as well as information about leaders of the Drake University chapter of the National Lawyers Guild and the location of Guild offices and any annual reports since 2002. In addition, it asks for "all records of Drake University campus security reflecting any observations made of the November 15, 2003 meeting, including any records of persons in charge or control of the meeting, and any records of attendees of the meeting."

The impetus for this request appears to have been a demonstration the day after the conference at headquarters of the Iowa National Guard involving a dozen arrests of protestors—for misdemeanors. Frankly, the fact that no felony arrests were made strongly indicates that no information useful in a counterintelligence context will be present in the kind of records requested. Any individual who appears for the first time in that data who might, even theoretically, present another justification for interest will be better delineated in other data. Further, the probability that unique information not available from other sources—such as, say, post-arrest interviews and surveillance tapes at the demonstration—is vanishingly small. Finally, and most importantly, attempting to treat the conference in the first place as a potential counterintelligence information source says volumes about the FBI's competence in doing counterintelligence work not directly related to nation v. nation conflicts. J. Edgar Tutu (no relation of Desmond) must be smiling up from where he is now.

There was an interesting essay in the Washington Post Book World yesterday on inconsistent and unrealistic expectations in the publishing industry. The most telling comment demonstrates exactly who is really in control of the editorial and acquisitions processes.

If publishing is to save itself from being a mere arm of the movie industry, executives must realize that they cannot divine a book's success through money tendered at contract time. Similarly, management consultants must appreciate that the way to ensure a publishing house's viability is not to cut a list in half. I have repeatedly learned that the American public likes to speak for itself and that it is an editor's responsibility to raise, if ever so slightly, the level of public discourse. I seriously doubt that Jessica Lynch's as-told-to memoir or Pete Rose's tell-all will become a staple among reading groups or will be assigned in literature courses, but this will not prevent overzealous publishers from feverishly bidding on Paris Hilton's adolescent confessional, should such a project appear. As dire as the situation may be, I disagree with industry consultants who maintain that quality publishing can no longer survive. I continue to stumble across dozens of projects each year -- from gifted stylists, devoted academics and, yes, a multitude of very dedicated agents -- that, when published, will garner fine reviews, attract wide audiences and actually make money. The neglected markets beyond the often rigid coastal sensibilities that guide many publishing professionals will surprise those houses that choose to look, as will the acknowledgment that there is a national literary sensibility that eagerly embraces Billy Collins's poetry and Patrick O'Brian's sea novels, to take just two recent examples.

Robert Weil, "Making Books" (08 Feb 04).

The essay is well worth reading; unlike most screeds against industry consolidation (or, for that matter, in favor of it), Mr. Weil provides hard numbers to support some of his most damning assertions. Legal ethics prevents me from doing so here, even if I thought it was the right forum; but I can certainly approve of Mr. Weil's essay.

Hollywood Nepotism Shock Horror

For some reason, a sense of reality has left the entertainment staff—both reporters and editors—at the New York Times. Today's paper expresses surprise at possible Hollywood nepotism. Anybody who is still surprised at that possibility need only look at Tori Spelling's long list of credits, then remember who her dad is.

What is most amusing about the article in question is the odd combination of wide-eyed innocence and dogged pursuit of the "ugly truth." In some ways, it is a possible twisted result of the "crack reporting" of High Society… which itself raises some further twisted possibilities. In any event, the tone of the article does its credibility no good at all.

Sometimes PornoSec Is Smarter… and Sometimes Not

Many people are probably going to jump all over an article in today's New York Times extolling the virtues of the porn industry's "more relaxed" approach to internet piracy.

Thousands of Web sites are putting Playboy magazine's pictures on the Internet — free. And Randy Nicolau, the president of Playboy.com, is loving it. "It's direct marketing at its finest," he said. Let the music industry sue those who share files, and let Hollywood push for tough laws and regulations to curb movie copying. Playboy, like many companies that provide access to virtual flesh and naughtiness, is turning online freeloaders into subscribers by giving away pictures to other sites that, in turn, drive visitors right back to Playboy.com. When Mr. Nicolau is asked whether he thinks that the entertainment industry is making a mistake by taking a different approach, he replies: "I haven't spent much time thinking about it. It's like asking Henry Ford, 'What were the buggy-whip guys doing wrong?'"

John Schwartz, "the Pornography Industy v. Digital Pirates" (08 Feb 04).

The key question—and, despite the flippant approach Mr. Nicolau takes, a difficult and perhaps unanswerable one—is whether the "traditional" entertainment industry really is comparable to the porn industry. (We'll leave aside the inaccurate characterization of the porn industry as "more enlightened" about the Internet than the RIAA, given that a near majority of the reported "online piracy" are over porn.) The sheer diversity of the audience argues that it is not; but, more importantly, so does form. Much of the porn industry's online content is not exactly what one takes onto the train to work anyway; those of you with overactive imaginations can just put them back in the gutter where they belong, thank you. Further, it is a "subset audience" even more than is that for popular music. We'll just have to see if, a year or so from now, iTunes is still a worthwhile endeavor—and if music.download.com succeeds as a replacement for mp3.com.

I'm afraid the jury is still out. Hopefully not in the bathroom with a recent Playboy centerfold downloaded off the 'net…

Weapons of Mass Disinformation

I am deeply concerned about the composition of George III's panel that is charged with looking at "intelligence failures" leading up to the 11 September atrocities and the yes-we-have-no-WMDs-in-Iraq fiasco. As the Perfesser notes, there is plenty of top-level experience on the panel. But that is precisely the problem. Not one panel member named thus far has any apparent experience dealing with raw signals or human intelligence data, with actual intelligence-gathering or analysis operations, or with any variety of fieldwork. My analysis of open sources indicates that any "intelligence failures" occurred at the raw-data or immediate-analysis levels—precisely those areas for which the designated committee members must rely upon outsiders for even basic context. Further, there appear to be a lot of policy failures resulting from policy-makers (appointed and otherwise, Republican and Democrat) coopting the analysis process; but, no doubt, these will be termed "intelligence failures" if there's no expendable fall guy at the policy level when the report comes out.

The media is right that this committee is unlikely to even ask the right questions so that it could obtain the necessary data, let alone reach a good conclusion. The media is completely off-base, both factually and doctrinally, in why this committee will be at best a whitewash, and at worst… let's not go there, ok?

The most interesting parts of the Washington Post's articles on the Australian raids on KaZaa are, as everyone should have learned to expect by now, buried at the end. That is bad writing, bad journalism, and bad editorial practice. First, we find this:

Speck said the raids are the culmination of a six-month investigation begun when the music industry "identified significant changes in the technical and physical infrastructure" of Kazaa's operations that made it enough of an Australian operation to subject it to that country's law. Kazaa is incorporated in Australia and Vanuatu, a group of South Pacific islands that advertises itself as a tax haven. Kazaa maintains that it is not responsible for the activities of its users and the Netherlands Supreme Court agreed in December. In the United States, the music industry is appealing an April federal court decision saying that the industry could not sue peer-to-peer services for alleged copyright violations. Shortly after, the U.S. music industry began its lawsuit campaign against individual file-swappers, which continues. The number of users of Kazaa has dropped by half since the music industry began its lawsuits.

Frank Ahrens, "Kazaa [sic] Offices Raided in Australia" (07 Feb 04) (emphasis added, fake paragraphing removed for clarity). Considering that where Sharman Networks (KaZaa's putative corporate parent) may be sued is one of the major issues in the entire controversy, one would not ordinarily expect to wade 2/3 of the way into the article to find that assertion. Further, one might ask whether Sharman was offered the opportunity to rebut the theory, or will have an opportunity to rebut the theory.

Next, we have this bit of nonsense:

The raids come during the same week that the Distributed Computing Industry Association — a trade group that includes Kazaa and Altnet — released a business plan it said could make peer-to-peer file sharing legal. The current plan, the third of three released in the past few months, involves copyright protection called "digital watermarking." Previous plans have called for peer-to-peer services to be converted into online music stores, with Internet service providers tracking purchases and billing customers.

Id. (that's lawyerese for "same source as the last one cited"). And the encryption on those watermarks will be broken within three to five weeks after initial use, and somebody will write and distribute the equivalent of DeCSS within a week after that. Then there's the simple work-around of intercepting the outgoing signal when playing the piece and reencoding it—something that one can do with about 40 lines of code (43, actually). This proposal is nothing more than a smokescreen intended to attach some legitimacy to piracy operations.

More on the Electoral College

Over at Nunc Pro Tunc, Yossarian remarks:

I've given the matter some thought, and the best I can come up with is this: the [Electoral College] system may help counter-balance the wholly undemocratic rule of equal suffrage in the Senate. Smaller states have been, and always will be, over-represented in the Senate. By giving larger states a disproportionate voice in choice of Executive, the Electoral College may check the Senate's own undemocratic nature. This only works if the "large" states allocate all of their electoral votes to the winning candidate in that state. But as Scrivener notes, all of the large states do use a "winner take all" system.

"Our Anti-Democratic Ways" (06 Feb 04). The Catch-22 to this analysis is fairly apparent; although, as I think about it, I'm starting to feel like the Spanish Inquisition…

Our main objection to Yossarian's analysis is that it assumes that the states elect the President, whereas the Constitution contemplates that the voters of the states elect the President. And…

Our two main objections to Yossarian's analysis are that it (1) assumes that the states elect the President, and (2) ignores that the method of selecting Senators has changed radically since the Constitution was ratified (Senators are now elected, not appointed by the state governments). And…

Our three main objections to Yossarian's analysis are that it (1) assumes that the states elect the President, (2) ignores that the method of selecting Senators has changed radically since the Constitution was ratified, and (3) fails to acknowledge that Senators are not bound to vote in any particular manner, and most especially not as a single bloc for each state, whereas Electors (at least in practice) are. And…

Our four main objections to Yossarians analysis are that it (1) assumes that the states elect the President, (2) ignores that the method of selecting Senators has changed radically since the Constitution was ratified, (3) fails to acknowledge that Senators are not bound to vote as a single bloc for each state, and (4) improperly assumes that the means of electing the President under Article II must somehow naturally correlate with the allocation of representation in the legislative branch under Article I (keeping in mind, too, that a fixed size of the House, and therefore virtually fixed size of the Electoral College, is a Constitutionally recent development), thereby undermining one of the most important checks-and-balances aspects of the federal system. And…

The comfy chair, an almost fanatical devotion to the Pope, and the soft cushions. And surprise.

The only internally consistent rationale that I've ever found is that the executive branch is a political branch, but it is supposed to be of intermediary representational value between the wholly elected legislature of Article I (under the fiction that we can use the contemporary election of Senators as a proxy for original intent!) and the wholly unelected judiciary of Article III. Internal consistency, however, is not enough; it is not consistent with the records of the Convention, with contemporary writings, with the "administrative state" model that has developed since sick chickens went off the menu, or with common sense.

Another !snort kersnuffle! note: Washington Post fails to timely renew its domain name. Rather interesting that a major publisher, with a major web presence, would be so… well, clueless is the nicest thing I can think of to say.

Between the Lines

Yesterday's Publisher's Lunch included a fascinating item on the realities of book inventories, fulfillment, print runs, etc. With apologies to Mr. Cader—I think his analysis is good, but doesn't go quite far enough—I'm going to quote a significant part of the story, along with my comments.

Perhaps Baker & Taylor senior vp of merchandising Jean Srnecz underscored the importance of the topic at hand the best, proclaiming, "Supply chain people are 'the new gods.' In some cases, power has shifted from sales to the supply chain people." In a climate of "shorter life cycles, higher consumer expectations, and technological changes," Srnecz believes "The operations part of the industry is what will take us to the next level."

Her plain-speaking advice underscored a host of simple inefficiencies in standard practices: "Many publishers have taught buyers to buy a lot of upfront because you won't get it later." But when print runs are oversubscribed they reduce all orders equally. "What a dumb strategy…. Unfortunately publishers have taught customers to play the game theory and lie, and they get a payoff."

Other advice include [sic] "Acquire what is saleable" and don't replicate titles that already exist. Slow turn-around time on orders is a real hazard, and "We [the industry] really suck at this." In particular, she urged children's book publishers to find "a way of turning reprints around quicker," suggesting more standardized trim sizes and North American suppliers. "If you can't reprint them, you can't sell them."

Comment: You can probably guess by now that the last paragraph is the nub of this argument. It all depends on what you mean by "what is saleable." If it means something like "something that we've already proven we can sell"—which, under "modern" American management theory, is the most-probable meaning—the shape of the industry is going to change pretty radically. The divide between the "big five" (or however many are left after the next wave of consolidations) and the rest of the industry will grow even greater, because the biggest publishers will no longer have an incentive to take risks on anything that doesn't look just like everything they already have in print. Innovation will be pushed down to smaller presses. For example, FSG would not publish Presumed Innocent; instead, that would have fallen to Grove Atlantic, or perhaps someone smaller. Come to think of it, that's not too far off discernable trends as is…

*  *  *

Mike Shatzkin of the Idea Logical Company gave concrete examples of his firm's analytic process for taking Barnes & Noble sales data compiled by Bookscan and revealing "very particular details in an actionable way." Echoing the theme of many participants—that "Context is everything; sales data without inventory data is hard to make sense out of"—Shatzkin's process reveals countless examples in which the numbers can show when the chain is undersupplied on backlist titles that are turning quickly (and oversupplied on backlist titles that are not). Notably, his analytics don't apply to the top of the list, which everyone is watching closely, but rather ones like "the eighty-ninth best performing title" from big company and its peers. He characterizes these "books underneath the very top layer" as "the band of opportunity."

Comment: The basic idea here is interesting and worthwhile; but, as someone with more than a bit of scientific background, I find the stated source for data downright offensive. A focus on B&N data from Bookscan is so underinclusive that one cannot draw a statistically valid inference from the results, unless one's target audience is exclusively B&N. By my count, that's less than 30% of the market in books, even throwing in B&N's online site, and much less so for fiction and serious nonfiction.

Between the Lines: The common thread in these two excerpts, and in the rest of the writeup, is a drive for prepublication certainty. This should not surprise anyone who has watched the industry over the last couple of decades. It is also extremely dangerous, because drawing conclusions from it depends upon one huge, easily disprovable assumption: that past purchasing and inventory records predict the future in a time of constant changes in media types, mixes, purchasing habits, and uses. For example, Joanne Rowling was not predictable. More to the point, the follow-on effects of her success would have had an insufficient statistical base for analysis for almost two years after publication of Philosopher's Stone (to hell with your dumbing-down of the book, Scholastic—the kids got it, even if you didn't). This then becomes a self-fulfilling prophecy.

I can understand the Perfesser hating the litigator he refers to here, but we're not all bad. By the same logic, I should hate all securities and corporate lawyers for their egregious misconduct over Enron, and perhaps all law professors on account of Professor Kingsfield. Wait a minute… that's gone a bit far…

What irritates me about the whole thing is the obvious political grandstanding by Mr. Ritchie and his client. I think it no coincidence that it was filed in Tennessee; back in the heyday of obscenity trials over porn films, Memphis was the favored location for filing such suits, presumably because the jury pool would be pro-prosecution. It's a much better argument for courts actually enforcing Rule 11, since the states have failed so miserably in regulating the profession.

How Squeaky Is That Wheel?

All across the blawgosphere (and blogosphere), one finds a raging debate on whether the Supreme Court is acting as an antidemocratic institution. Leaving aside for the moment that I think that essential—one need not even resort to invoking "mob rule" as a potential peril of "pure" democracy to realize this; one need only look at Sarajevo, or at least at what's left of it—I find the corresponding silence concerning the Electoral College far more troubling.

Although we all know better (or at least those of us who were paying attention in high school do), we continue to talk about Presidential elections as if the President is elected by the people. That isn't even a plausible fiction. Instead, the process looks something like this:

1. Each state (and the District of Columbia) is assigned a number of electoral votes equal to the number of members it has in both houses of Congress combined. Thus, the smallest state has three electoral votes: two for Senators by the virtue of statehood, and one for its population-allocated minimum of one Representative. (As an aside, it seems a bit bizarre that in a growing nation we've stuck with 435 Representatives, fixed by law, for so long, when it takes 640 MPs to govern England.)
2. At the Presidential election, the voters vote for slates of electors—one elector for each electoral vote. These electors have pledged their votes to specific candidates.
3. After the votes are counted, the state's electoral votes are allocated to the various slates. In all but (if I recall correctly) two states, this is "winner take all;" the other two are proportional, but are small states (Nebraska and one other). Thus, getting all of Illinois's electoral votes requires only a plurality in the state's popular vote.
4. In mid-December, the Electoral College meets and casts the actual votes to elect the President. If the College cannot do so (say, there's a tie due to a third-party candidate earning some electoral votes), the election is thrown into the House of Representatives—which continues to vote on a state-by-state basis.

The last election illustrates this. Al Gore had at least half a million more popular votes than did George III, but where those votes came from was his undoing: George III won most of the larger states. Without the Electoral College, there would not have been a Bush v. Gore. I do not see that it continues to serve any valid purpose, and is far more dangerous to "democracy" than our rather restrained judicial system.

The application of this to the publishing industry is left as an exercise for the reader, after close comparison with One Hundred Years of Solitude.

Some random notes from around the blogosphere:

• Professor Froomkin notes the essentially meaningless opportunity for Hamdi to consult his lawyer, or at least listen to his lawyer (since he wasn't allowed to answer questions).
• Noted without much comment, Phil Carter discusses a bit of the military records issue surrounding George III's service during 1972. I cannot comment because a couple of his remarks impinge on my NDA; but, whether I agree with everything said or not, the post should indicate that there is substantial evidence that could be obtained, if someone would bother to do it. I have even more questions that I would ask—but then, I was a CO in the USAF for much the better part of a decade, so I'm familiar with some USAF/ANG requirements (that would have generated records) that Carter is not.
• A very short followup on one of my earlier posts—the Perfesser notes that California Business and Professions Code § 17200 is a subject "near and dear to [his] heart." As a perhaps-irrelevant point of interest, there is no difference in the Sony case between the legal basis for suit under § 17200 and the correlate laws of 30-odd other states. These are generically referred to as "UDAP" (Uniform Deceptive Acts and Practices) statutes; prominent examples include CUTPA (Connecticut Unfair Trade Practices Act), the ICFA (Illinois Consumer Fraud Act), and three or four others. The distinction with § 17200 is that California allows a party without a traceable injury to act as a private attorney general. Since the "victims" in the Sony case include several who attended one of the referenced movies on the strength of the advertisements that included the phantom reviews from the phantom reviewers, that's not an issue in this case. Consumers in Illinois, Connecticut, or many other states would have the same ability to file a virtually identical lawsuit—and the "state of residence of the defendant" issue is not relevant; it is a false conflict. See, e.g., Perry v. Household Retail Servs., Inc., et al., 953 F. Supp. 1365, 953 F. Supp. 1371, 953 F. Supp. 1378 (M.D. Ala. 1996) (holding, among other things, that an Illinois corporation could be sued for violating the ICFA in Alabama because any conflict with Alabama law was a false conflict) (and yes, I was the principal counsel for the plaintiff, even if my name appears far down the seniority list; I did the work and developed the theories).