The Rule of Law

In a not entirely unexpected development, the International Court of Justice has ruled that the US violated the Vienna Convention in fifty death-penalty cases involving Mexican nationals (note: this is the ICJ's page on the whole case, which consists of several levels of links to PDF files). What this reflects more than anything else is true stupidity.

The point of any criminal justice system must be to obtain a just result. If the procedural rules designed to ensure justice are "inconvenient" to a local or state official's political ambitions to be "tough on crime," so be it; that's the price of the system. Further, given the huge delays that everybody already knows exist in the capital punishment system, there is no justice-based motivation to attempt to evade those rules and just add more possibilities for delay. Of course, that's not how all too many prosecutors see it: They see the system as one intended to result in convictions, not in justice, and resent anything that gets in their way.

The corollary is a simple one. Prosecutors who do not follow Vienna Convention requirements—they really aren't that hard, and require only some really routine cross-checking—must not have much confidence in their cases or their skills. If they did, they wouldn't mind touching second base. Cutting straight from first to third, though, is right out.

Frege (Again)

In honor of one of the most reflexive definitions in philosophy, today's class will try to determine the number of things in the class "copyrighted materials" by comparing it to the class of all classes similar to the class of copyrighted materials. Which, I'm afraid, is just as ultimately revealing as the so-called "orphan works lawsuit" (Kahle v. Ashcroft). I'm afraid that the plaintiff archives have made the serious error of reasoning from particular problems to general solutions, without consideration of the unique characteristics of other members of the class affected by that general solution.

The lawsuit asserts that "copyright restrictions on orphaned works—works whose copyright has not expired but which are no longer available—violate[] the [C]onstitution." This sounds a bit bizarre to start with; but an extended quotation from a press release demonstrates the real problem:

"Orphaned films are trapped in legal limbo, where they may disintegrate before anyone gets a chance to see them again," said Rick Prelinger, president of Prelinger Archives. "Automatic copyright extension that nobody asked for prevents archives and collectors from showing them or putting them online for everyone to use. Film is fragile and often doesn't last as long as a 95-year copyright term. Let's find a way to get these abandoned works into the hands of educators, students, filmmakers, and the public."

"Libraries traditionally have made out-of-print books available to the public. Now, students and others look online for works and are denied access to out-of-print materials because the laws have not been updated to enable them to be posted on the Internet. If we want to continue to have libraries serve the vital function they always have, we have to find ways to allow them to post orphaned works online," said Brewster Kahle, chairman of the Internet Archive. "The Internet Archive would love to be able to scan in all orphan books so that people everywhere can access and read them. But under current law, it is too expensive, and sometimes impossible to find their authors and clear their rights-even when we know that for most of these books, the author would gladly agree to our posting them."

Taking these problems one at a time:

• The concern about the loss of older films is a legitimate one. However, the proposed remedy goes far, far beyond simple preservation. Preservation requires only the making of an archival-quality copy; it does not require distribution of the material, for fee or for free, over the Internet. Further, note that well over 99% of the works in question are works for hire, not the work of individual creators. In other words, the actual creators probably benefit only minimally, if at all, from further exploitation of the work.
• The concern about the loss of older textual works is much, much harder to fathom. There are probably a few works that remain in copyright at this time that need preservation because the only available originals were printed on high-acid paper. However, not only does this ignore the archive/distribution distinction, but it puts a non-copyright rationale for unavailability—that it would not be economical to bring the works back into print, because the cost of the distribution system makes it unbusinesslike—into play as the unstated, but real, rationale for changing the rules on copyright.

We'll leave aside the "corporate v. actual author" ownership of copyright for the moment; even though that is the real cause of the controversy (as I've noted previously, almost all of the citeable instances of "abuse" of a copyright to inhibit further creativity involve works whose copyright is not controlled by the natural person(s) who created them), the apparent problem is that Kahle et al. don't want to pay for individual copies. By no means am I defending the pricing practices of the publishing and entertainment industries; I am merely noting that the lawsuit essentially seeks to swap one extreme for the other, without ever asking if there is a systemic, non-copyright problem that needs attention either prior to or simultaneously with "reforming" copyright.

Let's look for a moment at a few alternatives to allowing free copying and distribution of "orphaned" materials. Certainly, there is a significant effort ongoing now—not sufficient, but significant—to preserve "classic" films with deteriorating prints and negatives. The only apparent justification for the archives' position is that they can only afford to engage in a similar effort for works not yet recognized as "classic" if they are allowed to distribute the results of their efforts, without regard to the existing rights of copyright holders. One can only wonder whether the copyright holders might actually grant permission for a preservation effort, because on the face of the lawsuit there appears to have been little attempt to obtain such permission. There is certainly something to be said for wanting to retain for one's own use a copy of that preserved record that one created; but that's not at all the same thing as making it freely available to others.

At the other extreme, I have yet to see a realistic consideration of the economic realities and motivations of the publishing industry in any of these types of criticisms. This cuts both ways, of course; one can argue that private, profit-motivated publishing inhibits the development of the public domain. (That this argument is foreclosed by the language of the IP Clause doesn't seem to bother these critics: The Constitution justifies the limited monopoly right it empowers Congress to grant with the precatory "To promote Progress" language that implies that profit from exploiting that monopoly is sufficient motivation to create more works than might be created without such a monopoly.) What the various "archival" arguments boil down to is that the publishing industry doesn't properly select works that have such importance that they must be continuously available to the public. The nicest thing that I can say about this argument is that it ignores the most critical factor in the catalog life of a book: That the author does not have the ability to keep the work in print. The entry costs to individual authors have historically been too high, and remain too high; and free copies do have some effect—impossible to calculate, but anecdotal evidence indicates that for works that are not otherwise "bestsellers" it is a negative effect—on the author's ability to realize continued income from the work during the "monopoly period."

In other words, this really isn't about the content of the public domain at all. It's about money. And, as such, a "solution" that ignores economic causes of the particular distribution of distributions is at best disingenuous. It attempts to impose values that might be applicable to a relatively small subclass of works on the entire class of works at issue. That this mode of reasoning also seems to underly a lot of bigotry and prejudice does not make me any more comfortable with either the reasoning or the result. I am not saying that those who advocate broader use of copyright materials are Klansmen—only that the method of reasoning used is uncomfortably similar, and for that reason alone bears very careful scrutiny on its real, and not its asserted, bases.

Just Ducky

Since virtually everyone else in the blawgosphere has weighed in, I suppose I should too. Despite my personal preferences—the last thing that anyone needs in interpreting grey areas in FOIA is an avowed formalist, regardless of political inclinations!—I do not think Justice Scalia is obligated to recuse himself. Far from it; as his order points out at excessive length with excessive pedantry, and as Professor Ron Rotunda points out much more cogently in the Washington Times (difficult as that may be to believe, given the usual turgidity one finds there) (N.B. Professor Rotunda was as close to a "mentor" as I had in law school), neither the text of the statute nor applicable precedent requires Justice Scalia to recuse himself. It is a decision within Justice Scalia's discretion.

That said, I believe that it is appropriate for Justice Scalia to recuse himself. I advocate the military officer's rule (an appearance of a conflict of interest must be treated as one absent either compelling immediate circumstances or a disinterested determination that there is no actual conflict) for all lawyers, let alone for judges. Were I in Justice Scalia's position, I would recuse myself. But I am not. Justice Scalia no doubt has more personal knowledge of the situation than any outsider does, and I suspect that he consulted others whose judgment he trusts—probably informally, and not necessarily lawyers—before making his final decision. So long as his belief that he can be impartial is honest—which I am not questioning—and he has actually thought through the issues, we must be satisfied with the result. <SARCASM> In any event, I would probably regret not getting to read the vitriol of whatever opinion Scalia writes in this matter if he did recuse himself. </SARCASM>

Here's someone who understands what "protect the Constitution against all enemies, foreign and domestic" means. And he's a Marine, no less.

Joe Friday Wasn't Here

One of the more difficult issues in journalism and publishing—not to mention defamation law—revolves around the distinction between "fact" and "opinion." At the extremes, they're pretty clear: "Bill Clinton had at least one extramarital affair" is not in the same class as "Bill Clinton is a wonk". In the middle, though, particularly on issues of interpretation (such as those inherent in political debate), the distinction is unclear to start with, and usually made even more difficult by rhetoric that skirts the edge of intellectual dishonesty.

Although it doesn't go nearly far enough in its actual implementation of a realistic process, the New York Times at least acknowledges the issue—but not the cause. In an article today, the "Public Editor" (would be called "Ombudsman" if the job title was supposed to communicate responsibility and role, but that clearly is not a priority) discusses the NYT policy on corrections on the Op-Ed page. It's an interesting explanation, as far as it goes; but it doesn't go nearly far enough, because it doesn't discuss prevention—or retribution.

It's more than just a question of legal liability, or of abstract intellectual honesty. An effective program to prevent misstatements of fact in the context of stating opinions is also a critical component of credibility, even if it is not specifically identified as such. Exhibit A: The raging controversy over Van Dyke's deceptive—even mendacious—"book note", which has probably resulted in serious harm to the credibility of not just the Harvard Law Review, but of student contributions to law reviews across the country. Mr. Okrent describes the NYT's attitude on columnists' histories of distortion as "subject only to the limits of legality, decency and publisher Arthur O. Sulzberger Jr.'s patience" at the time he began in the position, without much indication of change in the policy.

So, then, how does the NYT handle a columnist with a history of verified factual misstatements? Is there a "one strike" rule (one mistake is allowable, but the second results in removal)? Is it possible that the NYT would remove a columnist who persistently makes factual misstatements in support of opinions (leaving aside whether that has actually happened)? Without a standard, or even apparent consideration of this specifically, I am left with the disquieting conclusion that nobody really cares, so long as Mr. Sulzberger's patience has not yet been exhausted. Given the opacity of the process, the likely delays, and everything else that contributes to this situation, I can only conclude that the NYT's correction policy is designed to deflect criticism, not to deal with the underlying problem—or at least that such is its effect.

My patience would have been exhausted quite some time ago by more than a dozen very prominent Op-Ed columnists, several of whom appear regularly on the NYT's Op-Ed pages. Without naming names, there is one somewhat extreme social conservative—by no means the most extreme—who has (by my count) made seventeen verifiable factual misstatements in the last couple of years, most of which would have severely undercut the opinions if corrected (or, better yet, not made in the first place). I don't mean misstatements based upon political interpretation, either. I mean misstatements like continuing to attribute a view to a public figure three years after said figure publicly repudiated the view; like continuing to quote discredited statistics no longer cited by the original proponents; like using only a politically motivated English-language translation of material from a philosophical work—based upon an incomplete text of that work—in the course of attacking the original author's integrity. This is not unique to social conservatism by any means; but the holier-than-thou attitude so often associated with this particular columnist (and I mean more than just a purely religious "holy") becomes merely hypocrisy in this context. And the less said about Rush Limbaugh and his "research" the better.

I am not proposing a numerical standard for dumping columnists; sometimes—although not in the case of the columnist described in the previous paragraph—an opinion based upon inaccurate assertions of fact has value in advancing public debate, if only because the inaccurate assertion of fact is plausible enough that it must be considered as a possibility. I do think, however, that the "exhaustion of patience" standard tries my patience far too much. I am also concerned that the NYT has not, until now, seen fit to even acknowledge that a policy for correction of factual errors by Op-Ed columnists even exists; but then, that would be a truly liberal (in the European sense) thing to do, so I'm not all that surprised. "Liberal media" my ass.

Clarification, 1400/28 Mar: My remark concerning the harm to credibility of student-contributed materials in law reviews reflects what I believe will actually happen, not what should happen. Professor Leiter is correct; a single instance, or even a single journal, should not result in lower credibility being attached to student work (if that is possible!). The irony that the "fellow traveller" approach is a dominant mode of what passes for argumentation in contemporary Op-Ed columns is not lost upon me; I doubt that it is lost upon Professor Leiter; but I suspect that it is lost upon Van Dyke, the current HLR board, and Messrs. Okrent and Sulzberger.

It's Raining [on the] Frogs

The Perfesser has a "no comment necessary" link on frog-bashing this morning. Far be it from me to object—my surname is courtesy of Ellis Island, not an indication of my ancestry.

In any event, if anything the article understates the problems with the French approach to foreign affairs and the Arab/Muslim world. Ordinarily, one need only say "Algeria" and be done with it. What I find more annoying, though, is the continued assumption that France has a right to dictate policy to other nations, on the ground that during the 17th and 18th centuries diplomats adopted French as the language of diplomacy. For example, not too long ago France threatened to veto any candidate for Secretary-General of the UN who did not speak French. We ended up with an unmitigated disaster. Of course, recognizing irony is not a strength of the French government, and hasn't been since the days of Petain. This is a nation that is so culturally imperialistic that dictionaries must have quasigovernmental approval to ensure that they are not allowing foreign words to encroach on French, but doesn't see anything wrong with French-oriented patois in Africa stemming from France's history of colonization there.

More to the point, they eat snails swimming in so much butter and garlic that one might question whether anyone can tell what they really taste like. But the pretensions of French cookery are for another time.

On the Other Hand…

The Perfesser wonders what might happen to Mr. Newdow's daughter if she becomes known as "the kid who took God out of the Pledge." It's a perfectly reasonable question, because the "singling out" does indeed work both ways. The Perfesser cites William Murray, the child of atheist Madeleine Murray O'Hair, as an example of "inverting" the parent's intended result. Perhaps; but then again, one might go on to become mayor of the town that was so grievously harmed by removal of religion from school funding. The Perfesser might well remember this one: the individual in question is Daniel McCollum, who served as mayor of Champaign, Illinois for several terms after having been the "affected child" in the linked case.

The real problem is that, while these incidents are certainly significant in shaping the adult from the child, the resulting shape depends upon so many other factors that I think the Perfesser's concern is vastly overstated. It seems to me more important that the parent ensures that the child understands that the parent is looking out for what he or she believes is the child's best interests (McCollum), not using the child to make a point (Murray O'Hair). I think that the Court reached the right legal result in both cases; I also think that family function, and sometimes dysfunction, greatly overshadows anything that might have "resulted from" the litigation, even assuming that one can show causation. After all, I think it highly likely that, even if Murray O'Hair had lost, she would have continued with similar courses of conduct, possibly resulting in the shunning that supposedly resulted from the lawsuit.

Clarification, 2200/24 Mar: My point is not a lack of sympathy for the Newdow girl. It is only that parent who treat their children like tools for litigation tend to treat them like tools in other contexts, resulting in a screwed-up kid either way.

Snooze

This is not an excessively exciting day in the news. In fact, it hasn't been a very exciting week.

• Dept. of Good Riddance Jack Valenti, the myopic head of the MPAA, is making even firmer noises about retirement. From everything that I've seen, it can't come too soon. The MPAA has had an opportunity to be proactive on so many things, but has instead chosen to be an ostrich. This ranges from industry accounting practices to piracy to shareholder rights to… never mind.
• First Barbie, now GI Joe. Leaving aside the dubious artistic merit—more years ago than I care to admit to, a university classmate tried to do something similar, and it was truly awful—one must question whether it's the dolls/action figures themselves, or the marketing machinery, or the people who purchase them, that are the target of these sorts of parodies. Only the first of the three targets could even conceivably support a trademark or copyright infringement action. Ralph Nader's recent lawsuit demonstrates the futility of the second theory, and the advertiser would have no standing to contest the third.
• Poor computer security design and implementation doesn't cause loss of privacy. Overenthustiastic teenagers cause loss of privacy. Just ask Kevin Mitnick.
• In a development that should not surprise even a tadpole, a British publisher has cancelled a book detailing the purported (I have to say "purported" because I do not have first-hand knowledge or supporting documentation) links between the Bush family and the House of Saud. It should not surprise anyone that the publisher in question is a division of Random House UK, which is in turn a subsidiary of Bertelsmann, the closely held German media conglomerate that has its own historical skeletons no longer in the closet and greatly desires even less vigorous antitrust enforcement.
• Disney's latest example of sheer stupidity involves its "feature film" The Alamo. Assume for the moment that the Alamo had been settlers in the Western US holding out against an onslaught of angry Native Americans. Could (or should) that film be made? And, if not, why does perpetuating racist revisionist history that targets an even larger ethnic group (Mexicans) as the "bad guys" in even more dubious circumstances (there wasn't even a US government decree allowing the Texians to claim territory within the US) fare any better, from either an ethics/intellectual honesty or artistic point of view?

Publishing? Reality? Sarcasm? You can get them places other than here, although in very few places other than here can you get them all at once, all the time. Although I can't speak for the "all the time," John Scalzi offers a few pithy comments on the realities of the publishing industry.

For those of us who've been the law-school route, it might remind you of the bizarre clerkship decisions made by judges: The middle-of-the-class famous college athlete who got a Court of Appeals clerkship, and the law review editors who couldn't even get interviews. (I was neither—soccer players weren't famous in the 1970s and 1980s, especially in Division III; and I did have interviews… but that's a very, very long story indeed.) In other words, there's a more-than-sneaking suspicion that "pure merit"—whatever that might be, given the subjective nature of "merit" in letters and the arts—has not all that much to do with publishing success. Of course, that begs the question of what does. It sure as hell isn't publishers' marketing efforts, at least not once gets outside of niche markets!

It was rather interesting watching Mr. Clarke's presentation on Sixty Minutes yesterday. At least he had the guts to admit, on camera, that a more-than-trivial part of the blame for 9/11 goes on his shoulders. (That's something I don't ever expect to see an SES-level civil servant or political appointee do—it's just not in their nature. That's why Janet Reno's assumption of responsibility for Waco stood out so much.) Regardless of his personal blameworthiness goes, though, what he really pointed out is that communications in the Administration, and probably not just this one, depend as much on whether the message that is to be passed on fits the preconceived notions of what the President's handlers think will be an acceptable conversation.

This is not unique to George III; or to Republican administrations; or to the US; or to democratic republics. It is a natural, and perhaps unavoidable, result of the desire to accrete and maintain political power in what is perceived as a zero-sum game. Whether Mr. Clarke was or was not correct, it was the duty of George III's handlers to let the actual policymaker(s) make that determination, not to censor it because it might be "unpopular." They clearly failed, whoever they actually are. One is reminded, in a rather sick sort of way, of the machinations in a typical episode of Yes, Minister: because although, as one bumper sticker I've seen recently puts it, "Regime Change Begins at Home—Replace Cheney & Rove," I have little confidence that things will be that much better under Kerry, if only because of the personality flaws inherent in the toadies who attach themselves to Presidential candidates. Remember Griffin Bell? How about Ed Meese? How about John Mitchell? And that's just the Attorney General, who as a lawyer is supposed to be an advocate by training…

Enough reality for this morning. Neeeeed coooofffffeeeeeee.

A couple of opinions of note—

In re Sunterra Corp. (4th Cir. Mar. 18, 2004) is a bankruptcy case with some interesting implications for authors—especially because it creates a clear circuit split with the First Circuit. A software company had retained its copyright in programs and granted Sunterra a nonexclusive license to use the software. Sunterra declared bankruptcy under Chapter 11 (reorganization of a business). The software company claimed that the software license was an executory contract, which could not be assumed (that is, continued) by the reorganized company with the consent of the other party. Of course, the software company had no intention of consenting (or there would be no dispute!). The Fourth Circuit held that 11 U.S.C. § 365(c), in combination with provisions of the Copyright Act, gave the software company the right to consent (or not) to assumption of the license agreement. Contra Institut Pasteur v. Cambridge Biotech Corp., 104 F.3d 489, 493 (1st Cir. 1997). In this day and age of publishers going bankrupt—remember Carol Publishing and Dove Audio?—this creates some interesting questions and possibilities for manipulating the bankruptcy proceedings, especially since the bankruptcy court in Delaware appears to have sided with the First Circuit.

Murray Hill Publ'ns, Inc. v. 20th Century Fox Film Corp. (6th Cir. Mar. 19, 2004) is a copyright infringement action that clarifies the distinction between "prior conception" and the final work, when prior conception constitutes only part of the final work. Murray Hill accused Fox of infringing on its script "Could This Be Christmas" with the (truly wretched) film Jingle All the Way. As the facts played out, though, Fox demonstrated that substantial parts of the film as actually produced were conceived and scripted before it received the script from Murray Hill. The Sixth Circuit held that these circumstances require a two-step analysis. First, the previously-conceived elements (and the corresponding elements in the allegedly infringed work) must be filtered out, just as would be nonprotectable elements. Second, the remaining potentially-infringed elements are analyzed for substantial similarity. In this case, the court found that "no reasonable jury could have found substantial similarity solely on the basis of the six minor elements not so filtered."

Target Selection

Teresa Nielsen Hayden, a senior editor at Tor books, described some really abominable behavior last night that demonstrates ignorance about the publishing industry and publishing process. Of course, the industry has gone out of its way to ensure that reality remains a secret—try deciphering a royalty statement sometime, not just for accuracy, but to see if it even complies with the contract!—so this shouldn't be entirely surprising. That's no excuse for this level of ignorance, though.

Editors are busy people. They would probably love to keep their slush piles down to, say, a two-week reply time. As painful as reading slush is, it's at worst comparable to YAMM (Yet Another Marketing Meeting). The realities of the modern publishing process, though, mean that most successful editors simply don't have enough time to subject themselves to slush—especially since most editors can't make the decision to acquire by themselves, but must convince at least two or three other people that the book is worth publishing and fits the publisher's plans. Since too many publishers don't really have a discernable, internally consistent plan, the latter can be a real bear.

In turn, this means that editors don't have the time for nonsense. Ms. Nielsen Hayden takes a lot more time for nonsense than do most editors (how many other editors at commercial publishers have their own websites that do anything other than discuss their cats?). Sometimes that nonsense gets a result that others might object to. <SARCASM> Of course, no author even engages in similar behavior. </SARCASM> Attacking the editor in question is not a way to either get ahead in the publishing world or even change behavior; so don't bother. Ms. Nielsen Hayden's correspondent would have been much better advised to work on his (I assume his) own material—whether that's writing fiction or whatever—than worry about one editor's opinion of an author whom she does not publish.

Those of us who lived through the 1980s remember Dress for Success all too well. (I almost always wore a dark-blue suit in those days. With four buttons and a whole lot of salad over the left breast, and lapel pins on both sides, and epaulets with shiny things on them, and… but I digress. Like that's a surprise.) Manuscript submission is the ultimate extrapolation of "dressing for success"—but, unlike the world of job interviews and salesmanship, there is almost no opportunity to overcome an unfavorable first impression. Sometimes that first impression can come from the signature block on the cover letter; and don't think that editors don't talk to each other about difficult-to-work-with authors. I know of one absolutely brilliant—not just my opinion, folks, but that of his/her professional society—scholar who writes wonderfully well, even in early drafts, but probably will never again get a contract from a major commercial publisher because he/she is impossible to work with, both in personality and in substance. That author's signature on a cover letter for an unsolicited manuscript (in the particular field in question, probably half the manuscripts published are unagented) is a near-kiss-of-death experience.

Publishers publish books. Editors work with authors and want to publish books. There is a difference; and failing to recognize and understand that difference makes an already-difficult buyer's market that much more difficult.

Today's amusement begins with an anthropological look inside the Beltway (via Professor Froomkin. We then jump to a related item: Justice Scalia says that he will not recuse himself in the Cheney case because he "do[es] not believe [his] impartiality can reasonably be questioned." Considering that the Sierra Club's lawyers are not known as "unreasonable," whether or not one agrees with the Sierra Club's substantive positions, this seems sort of odd—especially in light of the first item today and the trip on Air Force Two.

Finally for the moment, consider a recent ridiculous—but nonetheless required by law—suit filed over potential confusion that beer might be coffee. The real problem here is the lack of creativity by the coffeemaker's lawyers: If they had been smart, they would have found a way to respond to the beer name without filing suit while still protecting their mark. This is actually a problem with trademark law as much as it is with overaggressive markholders. Unlike copyright, trademark is a "protect it or lose it" cause of action: failure to aggressively protect the mark against even a trivial, and perhaps even a parodic, potentially confusing use can result in the markholder's loss of the right to protect the mark against egregious and actively misleading misuse. From a "legal creativity" perspective, the coffee maker would have been better off giving a license to the beer company for a very nominal fee (like $10) for the specific use. That would probably suffice to demonstrate that the coffee maker had defended its mark, even if the license is worded so that it concerns "avoid[ing] the later possibility of expensive litigation, without admitting actual confusion or intent to infringe upon trademark rights." The coffee maker's later response to an accusation that it has allowed an infringing use, and therefore must forfeit all of its rights, is "We didn't ignore it; we licensed it." Since the actual terms of the license agreement can probably be redacted as trade secrets, opposing counsel only gets to see the affirmation of license—and that assumes that a court would inquire into the exact terms of an arms'-length contract in any event, so long as it has the result of acknowledging the possibility of later confusion or infringement.

Yesterday

Many people will today be celebrating St. Patrick's Day. (I always wear some particularly ugly orange-and-green-striped socks, so that I've got all bases covered.) I noted very, very little coverage of a legally significant and shameful anniversary that passed yesterday.

16 March 1968. A complex of three villages in Vietnam. A platoon leader who had about one year of college and worked as a unit clerk before going to OCS. Civilians.

My Lai.

I find it curious—and more than a little bit disturbing, given the events in Southwest Asia for the past couple of years—that the legacy of My Lai has gotten so little attention. I would like to think that it can't happen again. That's about as likely as "It Can't Happen Here!" Combat zones do funny things to orders and perceptions.

Part of the price of warfare, particularly when it is asymmetric, is the occasional atrocity. It's not an acceptable price; but trying to pretend that they won't happen because one side (or the other) is Inherently Virtuous is rather foolish. On the other hand, failure to take reasonable steps to minimize them isn't acceptable, either.

A large part of the problem is that too many of our civilian leaders micromanage that which they don't understand. Desert One comes to mind, but that is far from the only example. In our system, the military must be subordinate to the civilian leadership, and that's a good idea even without Clemenceau's aphorism. That does not mean, though, that merely because modern command, control, communications, and intelligence (C³I) enables the White House to micromanage tactical and operational actions makes such management a good idea.

In the slow process of moving toward the appearance of respectability, I've now added a counter to this page. However, as of the moment it appears to have internal malfunctions.

He Thinks, Therefore He Is

In a marvelous display of ignorance, Francis Beckwith (author of the book that was the subject of the review quite properly excoriated by Professor Leiter), has attempted snidely to proclaim that

Although this means that none of us may actually exist, there is an upside: Brian Leiter may not exist either! "The problem of evil," to quote the possibly non-existent Leiter, is "solved at last." God, I understand, is pleased with the solution. Nietzsche, however, could not be reached for comment.

Poor philosophers. They rely only upon Nietzsche (who does not actually support Beckwith's position, at least not as a 19th-century reader of German would have understood the argument, but that just validates Leiter's suspicions, and Professor Solum's indirect rejoinder) and others who don't try to understand the implications of their musings as applied to people and their behavior. They haven't bothered to read enough science fiction.

I'm dead serious.

The concept of "alternate histories" has been extensively explored in science fiction, often to far greater depth than in formal philosophy, for a very simple reason: Formal philosophy fails to connect from the abstract and theoretical to the personal, whereas good fiction does precisely that. Frankly, some of the science fiction writers who have explored the topic are/were probably smarter and more rigorous in their thinking than some of the faux-intellectual "philosophers" who have pontificated on the matter; many of the latter display little familiarity with Heisenberg's conjecture or its implications. Consider the careful constructions of Philip K. Dick's The Man in the High Castle, L. Sprague de Camp's Lest Darkness Fall, Harry Turtledove's alternate histories of Rome and of the American Civil War, and even lower-brow fare like Eric Flint's alternate Thirty Years' War. Sometimes serious academic historians give it a try (although seldom with that much success as fiction).

Beckwith ignores the "law of unintended consequences." Perhaps Brian Leiter does not "exist"—or, as Professor Solum points out, is not the "same person"—only because Beckwith and his ilk do not either. Alternate histories and universes are not causation-free, by any means. And, if not Leiter, does that mean that nobody will step in to fill Leiter's rhetorical role in debate over Idiosyncratic Idiotic Intransigient Ineffable Inscrutable Intelligent Design/creationism (for, as Robert Pennock points out, they are merely rhetorical reframings of the same core hypotheses)? I think not. Perhaps Beckwith "himself" would be filling Leiter's role…

The trademark-infringement action by a French author accusing Disney of stealing Nemo appears to have ended in Disney's favor. There remains a probable copyright action (for a general description, see IPKAT). Unlike the esteemed kitten, I do not believe that the copyright suit has a chance, because (unlike in trademark) independent creation is a complete defense to a copyright infringement claim, despite some domestic claims in France that such is not the case. However, the dancing around will be interesting nonetheless.

New Math

Tom Lehrer understated the complexity of understanding publishers' royalty statements. It's more than just the possibility that some of the numbers are in base 8 (which tracks the typical understatement of royalties fairly well, leading perhaps to more questions than it answers!). Instead, there are other problems that only doing the math will allow one to see—and the math necessary is far from self-evident.

Consider, for example, the trade fiction casebound (hardback) publishing agreement. For a midlist author, the royalty basis will boil down to something like this, if the author's agent has negotiated better than would my dog:

10% of the cover price on the first 5,000 copies, then
12% of the cover price on the next 5,000 copies, then
15% of the cover price for each copy thereafter,
for copies sold in the ordinary course of business

Time for the math lesson, keeping in mind the objections raised here two days ago to a foreseeable trend that already has precedent in electronic rights: pegging the royalty to the "publisher's net proceeds." We'll leave aside for the moment the problems with defining "net proceeds" and only shudder at the possibility that Hollywood's fifty-page definition might be imposed (and also leave aside the antitrust implications). For the moment only, though.

From an author's perspective, alteration of the "standard" contract terms needs to maintain author income (in reality, author credits toward advances, since most books in this class do not earn out their advances) at the current level. Since the vast majority of fiction sales are at a "long discount"—currently 55%, but there is pressure from some retailers to raise it to 60%—equivalent income-producing terms, assuming for simplicity that the "net proceeds" are the amount the publisher receives for each book at long discount, would look something like this:

10%/(net) = 10%/45% = 22.22% of the net proceeds on the first 5,000 copies, then
12%/(net) = 26.67% of the net proceeds on the next 5,000 copies, then
15%/(net) = 33.33% of the net proceeds for each copy thereafter,
for copies sold at long discount

Things get even more interesting if the "long discount" is set at 60%:

10%/(net) = 10%/40% = 25% of the net proceeds on the first 5,000 copies, then
12%/(net) = 30% of the net proceeds on the next 5,000 copies, then
15%/(net) = 37.5% of the net proceeds for each copy thereafter,
for copies sold at long discount

It should surprise nobody that publishers have been imposing nonnegotiable alternative contracts and modifications to existing contracts that look substantially less favorable to the authors. This is more typical of what I have seen:

20% of the net proceeds on the first 5,000 copies, then
24% of the net proceeds on the next 5,000 copies, then
30% of the net proceeds for each copy thereafter,
for copies sold in the ordinary course of business

On average, this represents an income loss to the authors of well over 10%. The publishers typically claim that short-discount and direct sales justify the lower per-copy percentage, but sales figures for a typical work of fiction or serious trade nonfiction do not bear that out. Considering the accounting efficiency that can be had by no longer working on a "number of copies" basis for returns, that is an even greater savings for the publisher. Since the base royalty rates for trade paperbacks and mass-market paperbacks tend to be quite a bit lower than those for casebounds, there is even more opportunity for shenanigans in those contracts.

Yes, this is going somewhere. Probably to hell in a handbasket, but we'll just have to see.

Article 88

The Guardian has started what looks to be an important new series of articles on politics in the Middle East. In the first article, Brian Whitaker discusses some of the problems with imposing democracy on Middle Eastern (or, in more-accurate terms, Southwest Asian, which avoids the Anglo-American biases inherent in "Middle East" in favor of a relatively neutral geographical designation) nations from above, from a purely Western perspective.

The American working paper [justifying G-8 imposition of democracy] also gives the game away by saying that the Greater Middle East initiative will address "conditions that threaten the national interests of all G-8 members… extremism, terrorism, international crime, and illegal migration." In other words, the motive is not altruism but the self-interest of the G-8. While it is always possible that what is good for the G-8 can be good for the Middle East too, constructing a reform programme around the fears of outsiders rather than the needs of the people involved is a bad way to start.

Essentially, what the working paper does is to take some of the desirable attributes of successful democracies — press freedom, transparent government, women's rights, etc. — and look for ways to replicate them (or at least promote them) in the Middle East. The trouble with this is that it ignores the underlying problems: why is press freedom restricted, why is government not transparent, why do women lack rights?

On the crucial issue of democratisation, it fails to ask the most basic and obvious question of all: what are the obstacles? Why has democracy in the Middle East not progressed further than it has? In the minds of President Bush and the neo-conservatives, with their Cold War fixations, there is no need to ask the question, let alone try to answer it. The Middle East's problem, as they see it, is tyranny; "bad guys" like Saddam Hussein or fanatical Iranian clerics trample over people's freedom, but once they have gone everything will be fine. That, of course, is where it all went wrong in Iraq. The American planners focused on Saddam and didn't consider what to do about the can of worms he had been sitting on.

There is, however, another reason why the question, "What are the obstacles to democracy in the Middle East?" tends not to be asked. It's too embarrassing — both for the western powers and for governments in the Middle East. Beyond the embarrassment of asking the question, there's the even greater embarrassment of looking for solutions. If there is ever to be real democracy in the Middle East, a lot of people will have to change their ways drastically — not just in the region but in Washington too.

"Beware Instant Democracy" (15 Mar 2004) (ellipses in original).

Although he never comes right out and says so explicitly, what Whitaker seems to be getting at is the "means shape the ends" problem that has haunted US foreign policy since Roosevelt. The first one. Consider the converse case for a moment. Assume that the power relations are inverted—that some monolithic image of fundamentalist Islam has the military, cultural, and economic power to impose its systems and beliefs on the West. Only a moron would claim that the same mechanisms "necessary" to create a fundamentalist Islamic "republic" in Germany would suffice, or even be appropriate, in the US. Or France. Or England. Or Italy. Or anywhere in Latin America. Or Australia. The varying degrees of historical acceptance of theocracy and aristocracy counsel radically different approaches. Then consider the likely results if a single Master Plan would be imposed. Returning to "reality," only a moron would claim that the same changes need to be made in Saudi Arabia as in Kuwait, or Iran, or Syria, or Lebanon, to accomplish the stated goals of the working paper (even without questioning those goals). However, it appears based on recent history—the last quarter century or so—that the morons are in ascendancy in Washington.

This posting does not violate UCMJ Article 88. Not only am I no longer subject to the Code, but I do not hold the government officials in question in contempt—for their arrogance and ignorance places them beneath contempt.

It appears that Amazon is doing something right this time, although for self-interested reasons. There have been moves afoot for a while, spearheaded by Borders (the most-influential brick-and-mortar bookstore chain), to get publishers to remove cover prices from books. Allegedly, printing the cover price on books makes it harder to engage in differential discounting—that is, discount bestsellers more and nonbestsellers less (or, perhaps, not at all or even charge a premium). <SARCASM> Obviously, the people at Borders aren't as smart as car dealers: They've managed to discount based on demand, both locally and nationally, for fifty years in the face of a "Manufacturer's Suggested Retail Price" that is public knowledge. </SARCASM>

Leaving aside the practical and consumer-protection issues involved, there's a much more important reason to squelch this move: it interferes with existing contracts between authors and publishers. The vast majority of all publishing contracts—and even more in the past—base their royalty rates and advances on the "cover price" of a book. To comply with the Borders proposal, the publishers must either renegotiate the entire royalty basis—which, as it would be an excuse to lower royalty rates, would be vigorously and properly resisted by authors and probably deserve extensive antitrust scrutiny—or change a definition in the contract. However, changing that definition probably requires modifying the contract anyway; and, under UCC 2-207, that requires a written agreement between the parties, because it relates to a critical term in the contract (the price in the transaction between the author and the publisher). One might argue that as a "term of art," it will evolve as industry practice evolves. Perhaps that is true for new contracts; it is not true for older ones, particularly contracts entered into before 1989. Changing the definition sub rosa would destroy compliance with the "meeting of minds" between the parties, which is measured by the parties' expectations at the time the contract was signed. In other words, it would be a breach of the contracts.

The underlying problem is that in the mid-1990s, Borders was owned by K-Mart; it appears that some of those executives have gained power in the company. K-Mart has attempted to engage in differential discounting for decades. Of course, given that K-Mart is in bankruptcy, the likelihood of success in an inherently noncommodity market, such as that for books, seems rather slim. It sure sounds good when making presentations to market analysts and bankers, though, because it points out that (by the illusory methods used by market analysts and bankers) Borders, or whomever, retains substantial ability to improve profitability via price adjustments. All of this assumes a high degree of demand elasticity in the trade-book market; and, if sales figures over the last decade have shown nothing else, it is that there is essentially no such elasticity.

On the one hand, we have bad economics and bad logic leading to bad business practices. On the other, a monopolist (or at best oligopolist). You figure out the probable result.

The NYTBR has finally designated its new editor: Stanley Tanenhaus, currently a contributing editor at Vanity Fair (and a former Times assistant editor). He is best known in publishing for his biography of Whittaker Chambers—a highly controversial book, largely on partisan grounds. I am reserving judgment at the moment; but things can't get much worse than they have been under McGrath. Can they? (Of course they can—but it's nice rhetoric.)

Professor Leiter has some interesting thoughts on fact-checking at the Harvard Law Review—or, rather, the absence thereof. It was clearly improper for the HLR to publish that particular book review. I would have been much, much harsher than was Professor Leiter—not only is the review substantively indefensible, but the writing is precisely that sort of writing that gives lawyers a well-earned reputation for inability to write. But I do have one quibble—with Professor Leiter's terminology.

What Professor Leiter quite properly criticizes is a failure to cite check. Part of cite checking is doing precisely what Professor Leiter does in his comments: pointing out places in a work that require either support (which, as he notes, doesn't seem to exist) or a disclaimer that the statement is the writer's opinion. That is not the same thing as fact-checking, which involves not the support cited, but the facts underlying that support. Here's an example:

3,4'-dimethyl diazoamino benzene has a molecular weight of 287.24, melts at 391K, and is water-soluble.[note]
[note]CRC Handbook of Chemistry and Physics, 62d ed. (1981) at C-301.

A cite-check would correct the page number to C-264, correct the molecular weight to 225.30, and note that the source does not provide any data on solubility. A fact-check would go to another source and question the accuracy of the stated melting point. Some math will show that in this instance it is just transposed down a couple of lines on the page, but the point is that this is a different process.

OK, I've split that hair finely enough for today. Why? Because one of the two errors could form the basis for a defamation claim, and the other could not. An article that is properly cite-checked, within "reasonability" standards, does nothing for or against a defamation claim except perhaps help a jury believe that there was no intent and thus reduce damages. Attempting to confirm the truthfulness of factual statements, though, does, at least when done competently. The book review Professor Leiter excoriates did neither; but proper cite-checking (which, as noted above, is more than just checking page numbers) would have pointed to the underlying problems. As he notes, "A footnote adducing the empirical evidence on behalf of [intelligent design] would have been welcome, but there is none to be found, and for an obvious reason: none exists."

Perhaps some of my urge to split hairs here comes from the different perspectives and vocabularies in the publishing industry and academia; in the end, perhaps it is only another example of how the publishing and entertainment industries thrive on doing things differently from everyone else.

Yet more Martha Stewart news on the indirect effects of her convictions. Then there's the question of control of infectious diseases like the bucolic plague.

B. rusticus, also known as "bucolic plague," recently has been recognized as a serious public health risk. This bacterium secretes a psychoactive toxin that causes behavior-specific cognitive realm obsessive-compulsive disorder (axis I). Symptomology includes compulsive creation of ill-conceived craft projects from common household objects, obsessive thoughts of redecoration in a "country style" that bears little or no resemblance to historical or current rural and agricultural fixtures, obsessive claims of credit for the work (however dubious) of others, obsessive fascination with small wooden placques of marginally representational cows (often in a chaotic mixture of art nouveau and art deco styles, methods, and color schemes), and secondary intoxication from spray lacquer fumes. Incidence is gender-selective (M_f > 85%).

You'll just have to find the source of that quotation yourself.

As I've mentioned more than one time before—including while I was on active duty—the military has a much more serious problem with differing-sex rape than any potential problem with consenting same-sex activity or orientation. This includes not just the Air Force Academy, but the entire active duty force, as a recent study in PACAF shows. What I find curious is that only the USAF appears to be looking at the issue. Perhaps this reflects the higher proportion of female senior line officers in the USAF, compared to the Army, Navy, and Marines; perhaps it is the shock factor of the USAFA scandal; perhaps it is a difference in the openness of service cultures. As closed as the USAF's culture is, it is positively cosmopolitan compared to the Army, Navy, and Marines.

The Witness's Dilemma

The Perfesser notes some problems with the "false official statements" prohibition in 18 U.S.C. § 1001. In "After Martha," he basically agrees with the assessment that witnesses should remain silent and force the government to use the subpoena power to obtain testimony. Perhaps, in the abstract, that is an alternative; ironically, however, it runs right into another prong of § 1001.

…whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title or imprisoned not more than 5 years, or both.

18 U.S.C. § 1001(a).

Martha's problem was violation of (a)(2), in that the jury found that she made a false statement or representation (and probably implicated (a)(3) as well with the phony logs). However, remaining completely silent in the face of otherwise reasonable questions may, in the hands of an enthusiastic prosecutor, cross the line on (a)(1). Certainly not in all circumstances; but consider this possibility:

Government Investigator X is attempting to determine whether Megacorporation M had engaged in fraudulent accounting practices. X asks administrative assistant A whether she knows of any documents that might tend to prove or disprove such practices. Although A does not know the contents of the documents and is not privy to the actual details (we'll assume for the moment that M was guilty), she does know that her supervisor, Vice President V, has directed a massive shredding operation that is to begin within the next few minutes. Fearful for her job, but not wanting to lie, A refuses to answer the question and demands that X obtain a subpoena before she will answer. While X is obtaining the subpoena, V's shredding operation eliminates all of the admissible evidence of M's wrongdoing.

Although it's hardly fair, this appears to violate the "conceals… by any trick" the material fact of the shredding under circumstances in which the shredding itself results in the destruction of evidence.

What this really points out is that § 1001 is badly drafted. Compare it to the clarity of Article 107 of the UCMJ (10 U.S.C. § 907):

Any person subject to this chapter who, with intent to deceive, signs any false record, return, regulation, order, or other official document, knowing it to be false, or makes any other false official statement knowing it to be false, shall be punished as a court-martial may direct.

Typical. In the military, we're told to ensure that orders (and directives) can be understood by the people who might actually have to follow them. Apparently, the wisdom of that approach has not reached Capitol Hill.

As an interesting exercise in captive nation-building, consider the interim Iraqi constitution (HTML, badly translated from Macintosh). The most important stuff is, as usual with controversial documents, buried at the end and in the middle. The end (Articles 61 and 62) establishes deadlines for a new permanent constitution. It allows one failure-to-ratify rewrite, but is silent on the procedures to be followed if the second attempt also fails. Presumably, that means more UN troops.

Then there are interesting provisions like this one:

Article 16.
(A) Public property is sacrosanct, and its protection is the duty of every citizen.
(B) The right to private property shall be protected, and no one may be prevented from disposing of his property except within the limits of law. No one shall be deprived of his property except by eminent domain, in circumstances and in the manner set forth in law, and on condition that he is paid just and timely compensation.
(C) Each Iraqi citizen shall have the full and unfettered right to own real property in all parts of Iraq without restriction.

What do we call this—the Halliburton Clause? Or maybe just the "ignorance clause"—because nowhere does it define "real property." In the West, we mean land and fixtures on the land; depending upon which interpretation one follows, though, that's not necessarily congruent with Islam.

Grenāda, Grenăda

Professor Balkin provides a lucid explanation of judicial activism and how it is ideologically neutral, rather than a creature of "liberalism." Basically, Professor Balkin notes that calling a decision in the 1850s a "mainstream" position because conservatives today would not object to it is at best disingenuous. Instead, judging whether a particular "activist" decision is "conservative" or "liberal" must be based upon the standards of "conservatism" and "liberalism" current at the time the decision was made.

Professor Balkin's position becomes even more clearly correct when one applies the corollary of the opposite argument to recent "activist" decisions. Under that rule, we cannot judge whether recent decisions are "conservative" or "liberal" now; we have to wait years, decades, centuries until there is a need to reevaluate them, because only the definitions of "conservative" and "liberal" current in, say, 2025 (a short wait indeed!)—or, more properly, the policy preferences identified with "conservative" and "liberals" in 2025—can tell us whether a decision in 2003 is "conservative" or "liberal" in nature. If, of course, we assume that "activist" is objectively definable and not just an attempt to turn a descriptive term into a smear.

Consider, for example, the Michigan affirmative action decisions from this last term. One simply cannot call these decisions "activist," because they are founded on a seasoned (if not entirely defensible, as the Court admitted sub rosa by relying mainly on a concurrence) precedent: Bakke. Calling decisions "activist" because they attempt to delineate an extremely fine boundary—to make a distinction of degree, rather than of kind—only confirms that "activist" means "something of which I disapprove." What if the Michigan admissions programs had adopted an "economic background" test instead of one based explicitly on race? That would largely function as a proxy for race and ethnicity, as African-Americans and Latinos make up a disproportionately large segment of the lowest economic quintile (and the converse), but could be attacked as "irrational" only by using "disparate impact" analysis similar to that found in employment discrimination law. Routinely applying disparate impact reasoning to basic civil rights (other than voting) without a clear reason to believe in pretext would be a radical change in approach, as that approach has been repeatedly rejected—not to mention being so fact-intensive that one would be hard-pressed, even years later, to draw internally consistent rationales from decisions using such an approach.

What I find most interesting is that the examples cited by Professor Balkin and the others involved in this debate never reach obscenity and limitations on noncommercial speech. The farthest they seem willing to go is consideration of the "commercial speech" doctrine, which is admittedly a mess. Far more interesting than whether Central Hudson is a "conservative" or "liberal" decision is the question of whether Miller v. California and Roth v. US are "conservative" or "liberal" in their approaches. Of course, that gets into the question of what truly "liberal" means; I would exclude from "liberal" the extreme protofeminist position of Andrea Dworkin that all pornography is wrong because it exploits and demeans women, and therefore must be censored, but some others would not. Perhaps more important, the failure to grapple with the problems presented in Snepp v. US—which applies principles of contract law to suppress political speech—reveals a great deal more than the particular controversies cited by Balkin, Buck, and others.

More Disney Imitation

As further proof of its loss of the ability to innovate, Disney has just announced that it will coproduce a (potential) series of films based on C.S. Lewis's The Chronicles of Narnia, beginning with The Lion, the Witch, and the Wardrobe. In New Zealand, for $100 million.

The sudden enthusiasm for Narnia and all things fantasy—later this year, the Sci-Fi Channel will be presenting a four-hour-long made-for-TV film of Ursula LeGuin's A Wizard of Earthsea—reflects yet more of the herd instinct in Hollywood. The Lord of the Rings and the two (so far) Harry Potter films have demonstrated to a particularly unimaginative generation of Hollywood executives—quite a considerable achievement in itself—that fantasy reaches beyond the pseudopolitical thriller of James Bond, Tom Clancy, and Mission Impossible to works with a greater relationship to reality. So, in the usual fashion, Hollywood has rushed to acquire preexisting "franchises" based upon their popularity as books; based on this latest from Disney, adaptability to film is not a significant issue.

As difficult as it was to adapt The Lord of the Rings in any sort of fashion to film, it is nonetheless a linear narrative (well, actually two linear narratives wound together that fell apart in the last two films, but that's just quibbling) based largely in a humanoid-dominated, preindustrial-Europe-style nonallegorical universe. A Wizard of Earthsea is a much more subtle work, in some ways, being based on a seagoing culture with a lot of critical internal monologue. Whether the Narnia books, being dominated by non-humanoid characters, can be filmed without gutting them—particularly given the allegorical basis, some of which is rather racist—remains open to doubt. A $100 million budget, given the necessary amount of even-more-complex-than-Gollum CGI work, indicates a serious attempt to cut corners. In the end, all that will do is poison the well.

Hollywood is going through its decade-long cycle of emphasizing preexisting works as the source for its films, as opposed to original scripts. Instead of sticking to more-filmable works, though, and trying to learn from that process, it is attempting to replicate a single achievement that was done outside the Hollywood system. That sounds like desperate me-tooism to me. What a surprise.

Schadenfreude

So Martha may now have an opportunity to teach prison-cell decorating using US government issue blankets for hangings. I am somewhat surprised that she was convicted of all four charges. Although I certainly didn't sit in the courtroom and hear all the evidence, I believe that one of the four charges is properly a lesser included offense of something else of which she was convicted, so it will not affect her sentence and in fact should be thrown out.

The reporters I've heard on the radio haven't had any [insert favorite expletive here for deletion] idea of how the Federal Sentencing Guidelines work. I've consistently heard claims that her probable sentence (to be handed down on 17 June) will probably be about one year for each charge of which she was convicted. Hogwash. No matter how many charges of that nature she was convicted of, they'd be grouped for sentencing purposes. If one actually does the interminable cross-referencing in the current edition of the Guidelines, it seems that the apparent guideline range is 10-16 months before applying any mitigating factors or allowing for downward departure. Stewart is very fortunate that the insider trading count was thrown out, because in that event the guideline range would have started at 15-21 months. Why does that matter? Because full prison time is mandatory, absent a downward departure, when the bottom end of the guideline range is 12 months or more; otherwise, the "term" can be filled partially by prison and partially by community confinement and/or home detention, or even entirely by probation.

"Maximum of twenty years on each count" my left big toe. I doubt that she'll actually see the inside of a prison unless something really surprising comes up on the sentencing report or she pisses off the judge.

POD Blues

Well, technically one doesn't get blues with POD, one gets a laser proof, but who's counting? Most good printers do a laser proof these days anyway for non-color books!

In any event, the POD vanity presses took a massive hit from a St. Louis jury yesterday, which determined that three of the largest vendors had infringed a 1995 patent on the POD process. You can find images of the jury verdict form at Bookmachine.com. Damages were fixed by the jury at $15 million— and the jury also determined that infringement was willful, which requires the judge to consider two even more expensive issues: whether to award attorney's fees to the prevailing plaintiff (the successor in interest to the late Harold Ross who obtained the patent), and whether to multiply the damages by a factor of up to three. Thus, the exposure is probably a round $50 million from this verdict, presuming that it stands.

That, however, is not a good assumption. The defending POD vanity presses—Ingram, LightningSource, and Amazon—will undoubtedly file a whole bunch of post-trial motions to have the verdict thrown out as against the weight of the evidence, as excessive, as insufficient in its finding of willful infringement, and then appeal any remaining adverse result to the Federal Circuit. I've read the judge's previous 46-page opinion that interprets the patent (patent interpretation is a matter of law for the judge; the jury decides whether the facts presented fall within that interpretation). I'm not entirely convinced; I expect that the Federal Circuit will knock out one significant part of the opinion and send it back for reconsideration and possible retrial. I doubt that the Federal Circuit will reverse and direct a finding of patent invalidity or noninfringement; but that is also a possible result.

The upshot of all this is that one can expect POD vanity presses to be raising their rates in the near future to compensate for their exposure.

A few news items of interest:

• For years, I've been whining and moaning about how poorly lawyers write. Now, a "Judge Finds a Typo-Prone Lawyer Guilty of Bad Writing"—and reduces his fees.
• The increasingly popular voice-stress analysis device appears to be no better at detecting deception—generating both significant false positives and significant false negatives—than is flipping a coin. Now there's a surprise—we can't teach machines to do something that we don't understand how to do ourselves.
• Judges do change on the bench. Justice Blackmun is perhaps the prime example, evolving from a conservative "Minnesota Twin" of Chief Justice Burger to a man who would lament "Poor Joshua!" at the law's insensitivity to an abused disabled student and finally conclude that he could "no longer… tinker with the machinery of death."
• I'd remark "Ding Dong the Witch Is Dead!" at Michael Eisner's ouster as Chairman of the Board of Directors of Disney, but that invokes the wrong studio. For more detailed analysis, you can do far worse than read The Perfesser's outraged yet remarkably even-handed and scholarly discussion of corporate governance over the last couple of months. I thoroughly expect that by this time next year the Disney CEO suite will be in the midst of a serious redecorating binge. Not to mention some long-overdue firings, and possibly desperate attempts to get Pixar to change its mind.

Mostly just maintenance today. I've updated the blawg template, and I've got Warped Weft about 90% debugged. Unfortunately, I can't make it work in Lynx or Opera, so something is clearly wrong with the code.

On a more serious note, I'm now officially suffering library withdrawal. The Urbana Free Library, which is consistently ranked among the top 1% of non-university libraries in the nation, is in the midst of a major building upgrade. For the month of March, the stacks will be inaccessible while they're being moved from the preexisting part of the building to the expansion. Once that's done, the library will fully "reopen" in the expansion so the preexisting part can be remodelled. That doesn't mean I can't get anything from the library; but it does mean that thousands of my close personal friends are locked away from me, and I must specifically call their parents and ask that they come out and play.

Some kids are gym rats. I was, and remain, a library rat—the operative word being rat, of course.

In the News

This is a rather boring Monday. The "news" was last night.

Although I'm pleased that Peter Jackson & Co. were finally honored by the Academy for the quality of their work, the way in which it was done was rather annoying. ROTK is by no means a bad film; it is not as strong as either FOTR or TT. It's particularly ironic that this, the by-far-of-the-three weakest script (largely hidden by the sheer grandeur of the images), garnered an Academy Award. ROTK was certainly worthy of nomination; I narrowly preferred Master & Commander, particularly because the script of that movie never seemed to lose its sense of direction as the middle third of ROTK did.

The first boring item is yet another mistaken rehash of the Creative Commons license at the San Francisco Bay Guardian (a weekly newspaper). The article relies far too much on hyperbole and anecdotal evidence for its points, without ever coming to grips with the very real flaws in the CC license. (For example, the CC license does not—and cannot—inhibit an heir from asserting revocation rights under § 203.)

The second boring item is yet another misuse of terminology concerning POD publishing by the New York Times. Contrary to the assertions in this article, it concerns "POD vanity publishing." POD is a printing technology that changes particular price points for print runs and break-evens; it may support other business models, but it is not a business model itself, and aside from the specific numbers it is no different from the more-traditional definitions of "vanity publishing" and "self-publishing." As I've remarked before, it all comes down to two questions: Who is paying, and who owns the product? The technology used in the middle only changes the magnitude of the first answer, not its nature, and does not change the second answer.