Soft-Shelled Crabby Americans

Phil Carter has an interesting piece on "soft" and "hard" assertions of American power and culture. In his conclusion, he remarks:

[O]ur soft power ambassadors — those bastions of American capitalism such as MTV and Pepsi and Jerry Bruckheimer — often sow deep seeds of cultural resentment which may come back to haunt us in decades to come. We're locked in a deadly struggle with a fundamentalist Sunni Islamic terror network that believes in God's law over man's law — and finds abhorrent every aspect of U.S. popular culture. Arguably, our perpetual beaming of our soft power around the world does a great deal to stoke their fires of hatred. We might be wise to consider ways that we can limit the amount of U.S. soft power we send abroad, in favor of the kinds of hard power on display this month in Indonesia and Sri Lanka.

"The Benevolent Face of American Power, cont." (31 Jan 05). The problem with this view is that it implies that there really is a dividing line between "hard" and "soft" power, and even more dangerously that the two are somehow independent. When that NCO quite properly develops a relationship with the people he's supposed to be protecting, he necessarily brings in the "soft" cultural artifacts of his speech patterns, if nothing else; and usually much more than that. Conversely, the "soft" cultural artifacts try increasingly for "realistic" presentation of US military hardware and appearance, and of other aspects too.

The problem isn't "soft" or "hard" methods; it's "soft" or "hard" objectives. The ends and means are inextricably intertwined. When US interests enter a culture with the objective of grabbing market share, that is a "hard" objective, as it is a form of conquering and assimilating the target culture. It doesn't matter whether it was done with guns or with soft drinks or with music that celebrates values foreign to that culture; it is still a form of imperialism. Admittedly, it's a form of imperialism that is a lot easier to reject—but one must recognize the need to do so. Conversely, coming in with aid in the face of a disaster is the kind of ephemeral intervention that minimizes the impression of imperialism—so long as the aid forces are invited to do so, and leave when the locals decide their assistance is no longer needed. Consistently. Under those circumstances, the objective is nonimperialistic.

The particular debate going on in policy circles is considering only part of the question, as it focusses almost exclusively upon means. The "detainee" issues only reinforce this tunnel vision. Means and ends influence each other; choosing to press the envelope on means will necessarily influence the ends to which those means can be applied. That's not to say that it is possible, or adviseable if possible, to completely eliminate all odor of "imperialism" from US foreign activity. It's rather silly, though, to pretend that such objectives don't exist in the minds of those outside of American culture. Our perception that when we allow our businesses to enter a foreign market, that's not imperialism necessarily assumes the conclusion that business interests are distinct from government interests—and this is outside the experience of much of the rest of the world.

Framing the Question

According to the BBC (thanks to the IPKat), the trial court in Norway finally ruled on remand on the Bruvik matter. Frank Bruvik ran a website that posted a list of publicly accessible MP3 files. Entries on the list were submitted by others; none of the files were hosted there. The court has now held that Bruvik's list of links was an illegal aid to copyright infringement and fined him Kr100,000 (about $16,000US).

It's a good thing for the BBC that it is not itself subject to jurisdiction in Norway for its English-language website. Or, at least, one hopes so—because, on the BBC's page for this story, it includes a link to the Wayback Machine's archive of the infringing site. The BBC might be saved from liability because its intent is not to facilitate infringement—facilitating infringement would be an accident of a legitimate journalistic function. After all, the BBC includes links of that nature on virtually every news page. (Let's just ignore for the moment the BBC's hubris in claiming perpetual reuse rights for anything it has ever purchased while aggressively seeking to suppress others' copying of material from its website and archives, ok?) Even as pro-content-creator as I am, I couldn't credit such a suit against the BBC.

The Wayback Machine, however, is a much closer question. Frankly, it is itself a massive copyright violation that makes no pretenses otherwise. That's not to denigrate its usefulness and value as an archive per se; that's only to note that the parent organization is remarkably cavalier about the copyrights of individuals and organizations whose sites it archives. The Wayback Machine is an "opt-out" system that does not work as it so states (for example, it disrespects certain meta flags on websites, and when it encounters one that it will respect does not go into the past to even see if it has already "violated" that flag). The conceptual problem with this is that copyright is an "opt-in" statute. Period. I have far too much experience with class actions to ignore the difference!

In any event, this would be a fascinating lawschool exam question, reaching issues of personal jurisdiction, attenuation of effect, intent, and the philosophy of personal responsibility—not to mention conflicts of law. Maybe I'll have to spring it sometime… and, again, any student enterprising enough to spot this entry (since I maintain my own archive, they won't have to use the Wayback Machine!) probably deserves whatever dubious advantage they'll get. Issue-spotting is important; but the, I'm one of those whackos who also grades writing quality on exams, so you can guess just how far the I in IRAC will get you (that is, a solid B-).

Once people have been deprived of their humanity it is much easier to kill them. (All modern dictatorships have known this.) The Jews who were shunted to Auschwitz in cattle trucks were so degraded by their journey that they were no longer considered Menschen — human beings — but animals to slaughter. Typically, Auschwitz personnel ensured that their awareness of this horror was confined to their own special competence (the punctual departure of trains, the registration of arrivals). It was this willed ignorance that enabled them to ignore the moral consequences of their work.

Ian Thomson, "Horror of Horrors," Guardian Books (29 Jan 2005).

(25% of your final grade) Compare and contrast this passage with treatment of individuals at the Abu Ghraib and Guantanamo Bay facilities. Be sure that you discuss implications for operational security and for moral authority. Recommended time: 45 minutes.

An article in yesterday's Book Standard discusses the relationship between bestseller status and actual unit sales without ever getting to the real issue. The article concludes that the top 200 books in 2004 (according to BookScan's figures, which probably slightly understate the dominance of bestsellers) accounted for 10.8% of all book sales. That means that the remaining 149,000 or so titles divided up the remaining 89.2%. Well, not really; BookScan only tracks books that actually make it into bookstore distribution through one or more reporting store, so it probably tracks under 90,000 titles (60% of published titles). (Unfortunately, access to BookScan's data is very expensive, so I can't confirm that.)

This data can, as with any set of data, be interpreted more than one way. Some publishers will use it to justify continued low payment of authors on the ground that a few home runs are the only way the industry survives. Other publishers (and maybe some of the same ones!) will delve into the figures to try to discern what will sell well in 2005 and 2006, and adjust their offerings accordingly. Some will even try to divine other patterns, such as the dominance of multiple-title properties and authors; maybe we can sacrifice a goat and read its entrails to see what that really means.

One useful feature of this data, though, is that it concerns actual sales to readers. It isn't fogged by returns, or tied shipments ("If you want more than 25 copies of Dark Tower VI, you have to accept at least 5 copies of each preceding book in the series"—and those of you howling "antitrust" are far more trusting than you should be). It isn't fogged by self-reported estimates by bookstore owners. Unfortunately, neither is it fogged by figures from nonbookstores—not just Wal-Mart and Costco, but books sold in hobby shops, or at airport news stands other than WH Smith, or in grocery and drug stores or hospital gift shops, or ordered direct from the publisher, and so on. In other words, it's a useful set of data based on actual sales, but it's far from a complete picture of bookbuying in 2004—and that's before getting to those of us who buy remainders and used books, and wouldn't touch a bestseller in a bookstore (but would borrow it from the library).

Fan Fiction (part 3)

Caveat: From here on, I'm going to be discussing general principles relating to several broad areas of law. I'm just sketching out some context here. I don't pretend that this is definitive, or that there are no exceptions or loopholes, or anything else that might be construed as binding. (This caveat is as much for the benefit of people who somehow manage to read this away from the blawg and miss the disclaimer in the upper-right corner.)

The real problem created by fan fiction is that, at its core, it is not copying of the work. At most, it involves detailed allusions to parts of the work. The copyright concept of "derivative works" is sometimes relevant here, but I question whether it applies (let alone should) in the context of telling new stories in somebody else's sandbox. (Aside: Many experienced writers refer to works that are based on someone else's material for more than just inspiration as "playing in somebody else's sandbox." I can't tell you the parameters of a sandbox—but I know one when I see it.) These are sometimes treated as more than just "fan efforts"; consider the controversy a few years back over Lo's Diary, and The Wind Done Gone. The real problem is that the Copyright Act does not establish standards for how much one can take, or who judges it, or when, or anything else. Instead, we're stuck with dubious judicial determinations, often overlapping the 1909 Act and the 1976 Act and based upon behemoths who can afford to litigate to death and their various interests—interests seldom consistent with those of smaller creators, or their fans.

Fan fiction functions through allusion. The allusions need to be detailed and "authentic"; giving Captain Kirk a propensity for Black Power salutes, a half-open shirt showing a gold medallion and lots of chest hair, and a fondness for early funk isn't going very far—and that's clear before considering good taste! Fan fiction can also create converse problems. There has been more than one instance in which a later-published work by an "authorized" creator was accused of infringing upon material from fan fiction. Some creators and authors dislike fan fiction for precisely that reason: They fear that their own work will be cabinned by what the fans do, including potentially closing off already-contemplated developments. (Remember, a great deal of fan fiction is inspired by ongoing serial works.)

More importantly, though, the allusions must be recognizable. Even when not understood as doing so by the authors, fan fiction must invoke a sense of being in that other person's sandbox, or at least containing a couple buckets of sand from that sandbox. Some fan fiction tries to make clear that it is not authorized by the creator; most is not so considerate. The real problem is not confusion by those who write fan fiction, though; most of them know perfectly well that anything appearing in their usual haunts—whether the hectographed fanzines of the sixties or the massive website repositories of today—is not "official," or the real (Dr) McCoy. The problem becomes most apparent when dealing with new fans who have had little or no prior exposure to the world of fan fiction, and don't know its cultural idiosyncracies (or even the idiosyncracies of their own little area).

So, then, is there an area of law that is tailored to allusions to specific sources? Can I write obvious rhetorical questions?

Little Orphans and Larry

(Hey, no insult intended, Professor.) The Copyright Office is finally starting to get off its behind and realize that its regulatory authority—indeed, duty—extends beyond allocating royalties for broadcasts of music. In a years-overdue announcement in the Federal Register, it has called for comments on so-called "orphan" works. You can bet I'll be commenting formally; you can also bet that Kahle et al. will be commenting formally.

The Copyright Office seeks to examine the issues raised by "orphan works," i.e., copyrighted works whose owners are difficult or even impossible to locate. Concerns have been raised that the uncertainty surrounding ownership of such works might needlessly discourage subsequent creators and users from incorporating such works in new creative efforts or making such works available to the public. This notice requests written comments from all interested parties. Specifically, the Office is seeking comments on whether there are compelling concerns raised by orphan works that merit a legislative, regulatory or other solution, and what type of solution could effectively address these concerns without conflicting with the legitimate interests of authors and right holders.

I'll certainly be discussing this matter in the blawg, but I think I'm sort of obligated to work through fan fiction first. I do have a couple of initial thoughts, though, that I think should be considered by commenters.

• I find it both curious and revealing that virtually every instance cited in the Register concerns nontextual materials. This may well be a simple practicality issue: It's far easier to search for textual material using databases and the Internet, which both deters abuse and makes it a lot easier to track down potential owners. I suspect, however, that this is mostly due to the differing natures of "average ownership". A far higher proportion of registered nontextual works is WFH than is true for text. In turn, this implicates business dissolution practices as much as anything else. The key question is this: What happens to ownership of the copyright upon the "death" of the business-entity patron? The answer is not as clear as one might expect. Business sometimes just quietly collapse with a whimper; sometimes they get sloppily absorbed by another business; sometimes absorbtion is neater; and sometimes the Bankruptcy Code comes into play. Even in that last instance, though, very few trustees (or, for that matter, debtors, since the trustee largely relies upon the debtor for information) understand enough to even ensure that the materials are mentioned.

  For discussion's sake, I propose that the Register of Copyright issue an interpretive regulation regarding the ownership of WFH. If a business entity owning WFH copyright fails to take explicit steps to clarify the ownership, a successor in interest has two copyright years to take those same steps (all copyright issues are measured to midnight on 31 December). After that period, ownership reverts to the person(s) who would have been the "authors" but for the WFH doctrine, and such reversion is irrevocable. If that cannot be unambiguously determined, then—and only then—is the work an "orphan" subject to whatever provisions are finally adopted.

• No matter what happens, I strongly oppose any kind of mandatory renewal of copyright, however that may be termed. The arguments that have been put forth in favor of this are specious at best, and self-serving at worst. More on this another time.
• The Canadian approach has a great deal to recommend it, although it definitely needs more thought to be adapted to US practices. Under Canadian law, if one cannot locate the holder of a work after reasonable effort, one can apply to the Canadian government for a license to use. The government then sets a fee, and the fee is held in trust for any later-discovered holder of the rights. The obvious hole is what happens when the second user incorrectly decides that his/her use is "fair" and does not apply for the license; but that is far too complex an issue for here and now!
• No matter what procedure is adopted, at minimum it should include a searchable public list of requests/attempts to treat works as orphans, with copies of applications to be specifically provided to the major organizations that represent actual creators. The Copyright Office needs to ensure that no fee is charged for access to these materials; if access is fee-based, all this will do is create another opportunity for fraud and holding rights hostage. Like the publishing, film, TV, and music industries need another excuse for that!

The next fan fiction entry should be up tomorrow (Thursday) morning.

In the meantime, I'll be diving into a novel that just came in today. I'm sure that the timing is on purpose: A book concerning Jewish refugees in Italy during WWII coming out the same week as the sixtieth "anniversary" of the liberation of Auschwitz.

Fringed Carpet

Well, I suppose it's literally true that I'm a "fringe lawyer," given that my office isn't in a major city. Snort. If that's the worst PA can say about me (I will not give them the satisfaction of a trackable link), I'll just blow it off. I'm actually more concerned for the author of the article in the Washington Post Book World, as PA has engaged in slander per se by calling her "less than truthful."

Ah, the joys of the ad hominem attack—the favorite of guilty defendants everywhere. Or, to put it another way: When the facts are against you, argue the law; when the law and the facts are against you, pound on the table. I think PA's staff will be eating off the floor until they can get some new (figurative) furniture.
 

PS Guys, before you claim that your contract says something, try reading your own *)&^*@)^)! contract. It doesn't say what you claim it does—in fact, it says exactly the opposite. And what it implies that you let a "junior staff member" respond to a lawyer's communication—and not to that lawyer—is more enlightening than you might wish.

Just a quick note: The next part of the longwinded exploration of fan fiction should appear either late tomorrow (Wednesday, 26 January) or early Thursday. I'm preparing to judge the ABA Client Counselling Competition this evening, so that means I don't have time to crosscheck all of my citations for 'net availability today.

Never Again Means Never

This week marks the sixtieth anniversary of the liberation of Auschwitz. This has been largely swept under the carpet in the American media; there was a more-subtle-than-one-might-expect tribute on the BBC World News yesterday, but the print media in particular has ignored the matter.

The real issue is whether the amply justified slogan "Never Again" remains anything more than a slogan. While Hitler's minions certainly concentrated on the Jews, other ethnic groups were also unwillingÂ… participants. If "Never Again" has any moral force to it—and it should—it can't be limited to any particular group. That's why intervening in Bosnia and Serbia was justified; and why nonintervention in Rwanda was (and, at the moment, remains, although that's not an above-the-fold news item) unjustified. Genocide is not something for which anyone has the right to pick and choose which particular ethnic, religious, or whatever nonbehavioral group deserves more protection than another. The main difficulty with the entire issue is that the slogan over the gates at Auschwitz is unintentionally but ironically correct. Freedom isn't something that one can just "create" once: one must work at it forever.

On the other hand, one must wonder just how many senior administration officials in just about any Western government have actually read Hugo de Groot (better known by his Latinized name) (HTML, 1.1mb, public domain), or even a nontechnical introduction to the foundations of international law written by one of their own. Sure, it's easier to pontificate upon short passages taken out of context; Jerry Falwell, Pat Robertson, Pat Buchanan, Rush Limbaugh, and virtually every other political demogogue (regardless of ideology; I'm just picking on those four because they're such easy targets) have made their respective livings reputations out of doing so. That, however, is not government; it is abrogation of moral and personal responsibility.

Sanitation Engineering

or Why Calling Something a "Traditional Publisher" Doesn't Change Its Nature as a Vanity Press.

I guess I'm in a somewhat eighteenth-century mood today. As I noted in passing on Friday, the Washington Post Book World has outed one of the current generation of vanity-press operations. I wish to expand a bit on some of my remarks concerning Publi5hAm3rica that Ms. Span quoted (and believe me, I said a lot more than she had space to mention!).

The bottom line is that a "vanity press" is a business model. It has little (or nothing) to do with the technology used, or the acquisition system, or the amount of editing provided, or the marketing support provided, by the publisher. Those are all important considerations in evaluating printing services (note the change in terminology, of which more anon); none of them, however, are absolute markers for the nature of the operation. As I've tried to pound into the heads of people before, there are only two absolute markers, both of which are measured objectively at the moment the first copy comes off the press:

• Does the author have legal title to the first copy as it comes off the press? If yes, then we're dealing with self-publishing (and we don't have to consider the other prong). This is not to say that payment might be due before possession of that copy can be passed to the author; we're worried strictly about who owns the book presuming all terms of whatever contract was used to print the beastie have, in fact, been fulfilled.
• Is the direction of guaranteed capital flow toward the author? If yes, then we're dealing with commercial publishing; if not, we're dealing with vanity publishing. Keep in mind that certain responsibilities of publishing must be included in here, such as permission fees, cover art, copyright registration, etc. Thus, in the instance of PA, the "$1 advance" (that is, the consideration paid) must be balanced against the $30 registration fee, leaving guaranteed capital flow of $29 away from the author—and proper characterization as a vanity press.

All of that said, vanity presses are not inherently fraudulent or evil. In some circumstances, they are in fact an appropriate option. For example, a family history written by someone without word-processing skills may well be an appropriate project for a vanity press. It has an extraordinarily limited potential market; it is primarily of value just for being printed; and it is unrealistic to expect any return based upon the purposes of the Intellectual Property Clause.

The least-sophisticated consumer—and even highly sophisticated individuals not familiar with publishing industry traditions, practices, terminology, and self-deception—would tend to believe that a claim that one is a "traditional publisher" indicates that one's practices are similar to those of, say, Random House. That means all of the following (among other characteristics), none of which PA provides:

• An acquisition process that considers the quality of the manuscript, which necessarily requires reading it;
• An editorial process consisting of consideration of manuscript content, propriety, and a wide variety of other considerations, to a greater or lesser degree as appropriate to the individual book and its anticipated market;
• Access to bookstores without requiring special orders;
• Adequate attention to the physical quality of the product;
• A reasonable expectation for the author to obtain a positive return on his/her intellectual property, at however tiny a rate per hour;
• At least some effective, targetted marketing support;
• For all authors

For the morbidly curious, I have adequate documentation to support both these assertions of legal characteristics and the factual foundation for claiming that PA does not meet them. Don' t'row me in dat dere courtroom, Br'er Fox!

One problem, though, is that the knee-jerk reaction of authors to contact consumer-protection agencies does no good, because this is not a consumer transaction. Even though authors are in the same power and knowledge relationship as a consumer, this will be treated as a business-to-business transaction. In most states, the UDAP (consumer-fraud) laws do not apply to business-to-business transactions. False advertising law, though, does; it is only a question of the standard of proof that applies. And, unfortunately, who may apply it: Most false advertising law that would apply cannot be effectively asserted by individuals, as there are either legal or extreme practical barriers. That, in turn, means getting a bureaucrat to take an interest in it… too many of whom wouldn't know good English if it slid up their legs and bit them on the ass and don't read books in any event, and virtually all of whom have other priorities for their admittedly limited resources.

Students of the history of fraud will recognize the typical vanity press operation in the old "tin siding scheme." But the details of that are for another time. The point is that PA's claim that it is a "traditional publisher"—a phrase that appears in many places on its site, has appeared in many communications from it, and is probably ingrained in its principals' speech habits by now—bears as much relationship to reality as calling the guy who picks up the garbage a "sanitation engineer," or calling a used car a "pre-owned vehicle," or calling a headlong retreat "retrograde motion." The label does not change the nature of the underlying referent when the label is intended to deceive; that's why we don't refer to crooked politicans as "ethically challenged" without intending substantial negative connotations.

That I've built this entry around a metaphor of garbage is not a coincidence.

Fan Fiction (part 2)

{First, a minor correction: Recalling only the comment about blue balls, I incorrectly lumped the Perfesser's request in with slash fan fiction, rather than the semisubspecies snuff (involving death of that character, albeit often after sexual misadventures). My error—not that it makes any difference to the IP aspects!}

Before one goes into alternative theories to manage fan fiction, though, there's another beast that needs to be discounted: parody and fair use. Frankly, I think the Ninth Circuit has gotten this wrong. It is responsible for the two "anti-parody" decisions that remain the most cited justifications for finding parodic (or arguably parodic) works to be infringements of copyrights: the relatively recent Dr Seuss matter (No. 96–55619) and the notorious Air Pirates (581 F.2d 751 (1978)). Of these two, Air Pirates is probably no longer good law, even though it is frequently cited for restrictions on fan-fiction-style parodies. Air Pirates has a number of problems without getting into its questionable analysis of substance. First of all, it was decided under the 1909 Act, which treated fair use rather differently than does the 1978 Act. Second, the Supreme Court undercut a major part of the rationale actually stated in Air Pirates in Campbell (the case involving 2Live Crew, Roy Orbison, hairy women, and one of the most insipid love songs in the oldies arsenal).

The real problem with the parody-as-fair-use doctrine is that it is, in practice, a post hoc rationalization for a particular derivative work. That seems to be the Ninth Circuit's difficulty in Dr Seuss: Although the opinion never comes right out and so states, the rhetoric of the opinion implies that the court just didn't believe the rationale offered for the particular work. Judge O'Scannlain described the situation like this:

These stanzas and the illustrations simply retell the Simpson tale. Although The Cat NOT in the Hat! does broadly mimic Dr. Seuss' characteristic style, it does not hold his style up to ridicule. The stanzas have "no critical bearing on the substance or style of" The Cat in the Hat, Katz and Wrinn merely use the Cat's stove-pipe hat, the narrator ("Dr. Juice), and the title (The Cat NOT in the Hat!) "to get attention" or maybe even "to avoid the drudgery in working up something fresh." While Simpson is depicted 13 times in the Cat's distinctively scrunched and somewhat shabby red and white stove-pipe hat, the substance and content of The Cat in the Hat is not conjured up by the focus on the Brown-Goldman murders or the O.J. Simpson trial. Because there is no effort to create a transformative work with "new expression, meaning, or message," the infringing work's commercial use further cuts against the fair use defense.

(citations and footnote omitted). What this actually reflects, more than anything else, is some poor statutory drafting and misunderstanding of Campbell. The statute is drafted poorly because it puts first the nonobjective factor ("purpose and character"), and actually partially repeats itself in the fourth factor (effect on market). This usually causes the market niche of a work to have dominating effect on fair use analysis, even though Campbell explicitly denies that analysis, see 510 U.S. at 584–85. More disturbingly, Judge O'Scannlain's rhetoric betrays that he just didn't find Katz and Wrinn's work funny, a subtextual problem specifically warned against in Campbell, see 510 U.S. at 582–83. Air Pirates holds up even less well under the Campbell analysis.

This is not to say that parodies are always (or, on the other hand, never) fair uses. Instead, though, a wise jurist will give much greater emphasis to the second and third factors, or at least analyze them first, due to the conflation of issues in the first and fourth factors. Too often, opinions on "parody" actually come down to perceptions of "how good" the parody was, regardless of judicial protests to the contrary. "Nature of the work" has come to mean "market category" more than it has "is this work standing alone in the universe, or is it related in some fashion to the source work for its own meaning?" Analyses of parodies that emphasize its commercial nature actually undermine the terms of § 107 by making one of its four factors almost a subset of another. Under the hoary old theory that statutes are to be interpreted to give independent effect to every provision, this is untenable.

Where does that get us with fan fiction, then? One can easily rationalize a lot of fan fiction as parody; one can stretch and rationalize even more as parody; but an awful lot of fan fiction is mere homage and pastiche. My point here is that the parody doctrine is not terribly helpful (and, frankly, should be revisited by the Supreme Court), particularly when the parody operates upon a work that does not itself stand alone. Keep in mind that most fan fiction is based upon serial works (serial, that is, in the literary sense, not the commercial sense). Even when the "second installment" has not yet been released—there was a substantial body of fan fiction created between Star Wars and The Empire Strikes Back—that doesn't change the initial object work's character as a serial work.

Yes, there is a specific rhetorical purpose to using the simultaneously dry and ambiguous term "serial work." No, I'm not going to explain it yet. This constitutes a "cliffhanger" ending, although probably not one rising to the level of parody.

It's the Context, Stupid!

Getting completely away for a moment… Philip Pullman has an interesting piece that reaches part of the problem with teaching writing in today's Guardian. (Even if you don't like its politics—which have moved considerably toward the centre since its days as the Manchester Guardian, and even since the early 1990s—you should be reading the Guardian's materials on books and the arts if you're at all interested in a broader perspective than the captured "publishing press" in this country.) He concludes that:

What does work, the York study maintains, is writing in a meaningful context: writing as a practical hands-on craft activity. One of the implications of this is that teachers have to be confident about writing - about play, about delight. Too many are not, because they haven't had to be; and the result is the dismal misery of the "creative writing" drills tested in the Sats, where children are instructed to plan, draft, edit, revise, rewrite, always in the same order, always in the same proportions, always in the same way. If teachers knew something about the joy of fooling about with words, their pupils would write with much greater fluency and effectiveness. Teachers and pupils alike would see that the only reason for writing is to produce something true and beautiful; that they were on the same side, with the teacher as mentor, as editor, not as instructor and measurer, critic and judge.

And they'd see when they looked at a piece of work together that some passages were so good already that they didn't need rewriting, that some parts needed clarifying, others needed to be cut down, others would be more effective in a different order, and so on. They'd see the point of the proofreading, at last; and they'd be ready, because they were interested, to know about subordinate clauses and conjunctions and the rest. The study of grammar is intensely fascinating: but only when we're ready for it.

"Common Sense Has Much to Learn From Moonshine" (22 Jan 2005). Even as badly as math and foreign languages are generally taught in this country, those curricula do not make the same errors. Sure, there's a lot of drill in both of them; but, on the other hand, there is constant reference to real (or at least quasireal) contexts in other problems introduced at the same time as drill. Similarly, a chemist must do more than memorize the periodic table. What too many instructors fail to realize is that the written version of a language, with its greater formality and fewer opportunities for corrective feedback cycles, can be almost as foreign as a different oral language. Law school is a sad demonstration of this; it's not "learning to think like a lawyer" that is the barrier, but "learning to talk like a lawyer."

Whether one accepts a strong or weak version of semiotics, or even no semiotics at all, it is fairly apparent that one uses different tools to manipulate the symbols, words, sounds, etc. of a language orally than one does on paper (or papyrus, stone tablet, whatever). We should stop pretending that an "English class" is talking about only one subject, one language.

Caviar or Nine Lives?

(This entry is another that, although not directly connected to the "fan fiction" thread, is indirectly related, because it deals with branding and publishing.) Today's Guardian has a couple of pieces that touch on the author's role in marketing of books, and expose some of the industry's tricks for exploiting authors. A short item in "The Bookseller" notes that

Lavish dinners where retailers meet star authors are now an integral part of most book marketing campaigns. In theory the guests will be wooed and their positive impressions will filter through to support from shops; in practice such evenings can be hit and miss. Random House held the first big dinner of the year for Jane Fonda, whose autobiography My Life So Far is due in May. At the Mirabelle in London, Fonda was engaging company for the heads of Waterstone's, WH Smith, Amazon, Ottakar's, Borders and Tesco. She talked freely about her films, working with Vietnam veterans to shed the "Hanoi Jane" tag, and the lack of intimacy in her marriage to Ted Turner. Most promisingly, she pledged to work hard to sell the story of her "spiritual journey," with 10 days of signings and interviews on publication. The retailers fell in love, and pre-orders were quickly doubled.

Note that the only people buying on this basis were the bookstores, and they're only ordering returnable copies. Although this is certainly an important step—very, very few impulse buys, and probably less than a majority of not-planned-by-title buys by those looking for a book, are made without putting one's fingers on a physical copy of the book—it is not at all the same thing as actually selling the books.

As one reaches beyond the lavish publishers' parties that are restricted essentially to celebrities and those with previous bestsellers under their belts—that is, those least likely to need extensive publisher marketing support—one finds less happy circumstances. Robert McCrum notes that

[A] McEwan or an Ishiguro will devote almost as many months promoting his latest work as he spent writing it. This is the condition of the writer today, as itinerant as a medieval troubadour, with air miles. If, for example, you are fortunate enough to win a big prize — Booker, say, or Whitbread — you can easily spend as much as a year on the grey brick road of book promotion. This has absolutely nothing to do with good writing and almost certainly inhibits its free, mature expression.

Now, more than ever, the book-promotion machine is working against the interests of the writers it has been set up to promote. Now, as never before, the marketplace is devouring the hand, the arm and the head that feed it. Authors of all shapes and sizes have become either the dupes or accomplices of a publishing industry that is exploiting its writers as its unpaid representatives. A publishing house that sends an author to a 'book event' is selling books of course. It is also bolstering its place in a cut-throat market at virtually no cost. In the process, the odd, lonely business of putting one word in front of another in a small, white room gets neglected.

"Writing a Book Is One Thing…" (reparagraphed for clarity). Consider how other segments of the "entertainment industry" work. Sure, musicians tour in support of albums, recordings, etc.—and they usually get paid. Paid more than from the recordings for all but a select few. Actors who appear in support of a film are doing so on a contractual basis. Sport figures (coaches and athletes) get appearance money.

So, then, what makes publishing different? Is it that the artists really are starving, and therefore can't be trusted to behave properly in public? Is it something different? Is this author just reaching for cheap foreshadowing effects?

I guess I'm getting better at soundbites (scroll to the end).

Swingin' From a Vine Near Hollywood

This is a corollary to the discussion of fan fiction that I started a couple of days ago. Tarzan is losing his grip on the law of character use and infringement; that guy swinging around is now wearing blue-and-red tights, or at least he and his buddies from the same publisher. That's right—it's Marvel Entertainment.

A couple of years ago, we had Marvel Characters v. Simon, involving retroactive works for hire and control thereafter of characters created in those works, and Fox Entertainment v. Marvel Enterprises, involving a TV series bearing an uncomfortably close resemblance to Marvel's X-Men franchise. Now we have a "contract dispute" that implicates both of those matters: Lee v. Marvel Enterprises, No. 02–8945 (S.D.N.Y. Jan. 17, 2005) (Sweet, J.) (PDF, 113kb).

Stan Lee created a number of famous Marvel characters, most particularly Spider-Man. Judge Sweet describes the dispute this way:

The plaintiff Stan Lee ("Lee") has cross-moved for partial summary judgment declaring that he is entitled to 10% participation in profits derived by Marvel from television or movie productions, not limited by so-called "Hollywood Accounting," including film/television merchandising when the profits do not result from a fee for licensing.

Slip op. at 2. As noted throughout the opinion, Judge Sweet has difficulty believing that "profit" really means what Hollywood tradition says it does. In the end, he holds that the contract between Lee and Marvel means "profit" as real people would define the term, not as Hollywood might. On the other hand, he's really not too pleased by the disingenuousness of the lawyers (I bet the briefs make fascinating reading and are filled with either near-invective or supercilious condescension toward "learned counsel's error"):

Skilled counsel for both sides praise the clarity of the language of paragraph 4(f) to reach directly contrary results. What follows is an effort to clarify and determine the terms of the contractual language under the applicable principles of procedure and construction. This determination has the potential to affect substantially the financial fortunes of the parties.

Slip op. at 4–5. I'm sorry, guys, but your arguments that the language was "clear" border on the frivolous if it takes the judge thirty pages to declare otherwise.

In any event, what this represents more than anything else is unsuccessful lawyering at the time the agreement was drafted. The terms "profits" and "profit participation" have dictionary meanings that are distinct from the "technical" meanings that are used, inconsistently, in various parts of the entertainment industry. If the parties might have intended those technical meanings, they were obligated to include (or at least reference) them; otherwise, even a first-year law student knows that the judge will resort to Webster's. Of course, if lawyers would just get out of the habit of taking terms that have reasonably clear everyday meanings and redefining the hell out of them—in an all-too-often-successful attempt to deceive someone—this wouldn't be a problem, would it?

And that, in the end, is also one of the problems with fan fiction and the whole character/environment protection struggle. I do not see this primarily as a copyright issue. I see it primarily as a trademark issue. And, over the next few irregular entries, I'll back up and try to show why the line of cases that tries to apply copyright to allusions is inconsistent with advising creators on how to comport their conduct to the law. It's not that the theory is "wrong"; it's that it can only be applied post hoc, and therefore is logically incomplete.

Weapons of the American Inquisition

As someone who spent most of his adult life-before-the-law dealing up close, personal, and very messily with theocracies, I advocate an extremely high, strong, and thick wall between church and state. A few exhibits for your consideration, limited only to the last half of the twentieth century so you don't have to research too hard (in alphabetical order): Afghanistan; Croatia; Iran; Ireland/Northern Ireland; Israel (take a look at parliamentary factions); Serbia. As you can probably tell, this is far from an exhaustive list! Note that this is not about questions of faith, of personal belief, of "religion" with a small "r," of local congregations of people who gather together to worship; it is not about any particular religious doctrine; it is not even about moral or "natural" foundations for law. It is instead about the inherent incompatibility of theocracy with democracy, republicanism, and individualismus.

The so-called "Design Institute" is nothing more than an attempt to convert the US to a theocracy, or at minimum the first few steps on that road. Whether each individual member of the DI demonstrates bad faith toward the Constitution is improbable; in any religious hierarchy, one will find true believers, usually trotted out for credibility's sake when the underlying beliefs are attacked as inhumane (Exhibit A: C.S. Lewis). On the other hand, the institution itself, and its top leadership, do have a bad-faith relationship with the Constitution. I suggest reading the AAUP's explanatory page on how "Inscrutable Design" is being used as a wedge for precisely that purpose. One need not delve into the tension between the Establishment Clause and the Free Exercise Clause to discern this; one need only read the Preamble, and the Religious Test Clause.

Trying to pretend that the false dilemma at the heart of Inscrutable Design is "scientific" represents at best a gross misunderstanding of what "science" is, and more probably something much darker. ID depends upon this syllogism:

• Current evolutionary theory does not perfectly explain every aspect of life (and geology).
• Any complete scientific theory must perfectly explain every aspect of its field to be valid.
• Therefore, life is the result of intelligent design.

Let's take the individual items apart for the moment.

• No, it doesn't. Neither does it pretend to. This depends upon a misuse of the term "theory." In scientific terms, a theory is a conceptual structure that (a) explains the subject material in light of known, verifiable facts and (b) has predictive power toward additional facts, whether those facts are post hoc discoveries or of future natural or laboratory events. ID and the DI instead redefine "theory" to mean an unproven conjecture based on a few observations. As Judge Cooper pointed out, this is not what "scientific theory" means.
• The problem here is that, at least in a high-school science textbook, we aren't teaching the entire scope of evolutionary theory. Consider an analogy to mathematics. We don't start off the tenth- or eleventh-grade course in geometry with non-Euclidian geometry; we don't try to relate hyperbolic trigonometric functions to any real phenomena, such as solid-state physics and electron tunneling; we start by assuming the parallel postulate, because that material provides a foundation for understanding things when we deny the parallel postulate. Similarly, we don't throw Finnegans Wake at ESL students on the first day of their exposure to English.
• The problem here is that the conclusion excludes intermediate cases, and denies that there exist any alternatives other than evolutionary-theory-as-now-understood (in other words, a static theory that does not itself evolve to consider more and different evidence) and "intelligent design." (The designer had to be pretty stupid if he/she/it/they/whatever included an appendix and toenails.) This is a false dilemma; there are, in fact, more than two possibilities. Evolutionary theory, by its nature, evolves. Then, too, there are small-scope microtheories; and the assertion that for purposes of understanding proximate cause, students generally don't need to comprehend first cause.

Then, too, there's an unstated pedagogical assumption that goes into the ID movement: That ID belongs as a consideration in every subject in the curriculum. Science classes are just a wedge, too; the next target will be either literature—remember all those anti-intelligent-designer books that are so commonly opposed by the same individuals who make up the membership of the DI?—or basic social sciences. The wedge isn't just into science; it is into education as a whole, and into power.

That's what this is really about: an attempt to seize power outside of the ballot box. Since the courts and schools seem to be encouraging people to question the right of the theocrats to do so, they need to be the first targets for change. If you can't get what you want in the current system, change the current system. That sounds a lot like a revolution to me; but then, there's an excellent case to be made, as Stephen Stills once remarked at a concert, that "Jesus Christ was a nonviolent revolutionary." (Hmm. Is there enough reflexiveness there?) Frankly, I have more respect for "young-Earth creationists" than for the DI; at least the YECs are honest about the source of their beliefs and the objectives of their objections. Of course, "more" doesn't mean "a statistically significant difference."

The DI needs to spend more time remembering that our constitutional evolutionary forbearers either themselves, or farther back in the political evolutionary chain, had plenty of experience with and escaping from theocracies. Unless, of course, we're going to take not just selected parts, but all, of the Old Testament as literal truth; in which case, almost none of them are of God's People in any event. But they still have sticker shock.

Fan Fiction (part 1 of however many it takes)

Not so long ago, an eminent blawgger almost got himself in trouble by advocating some slash fiction involving destroying another author's character. Fortunately, he came to his senses after legal advice from more than one place. He quoted another law professor as saying:

The fan fiction would use enough of the Moorcock and Hamilton material—enough character attributes and allusions—to constitute "copying" for copyright purposes (even if the only things that they literally copy are the names).

The more I think about this problem, the more I think the right conclusion was reached for the wrong reason(s). Or at least neglecting what should be the dominant reason(s). I'm picking on the Perfesser just because he's so good-natured about the whole thing—and because his specific request would make a fabulous exam question (don't think I haven't kept a copy… and any student who is perspicacious enough to find this blawg entry probably deserves the slight advantage it would give him/her).

In any event, let's start with a couple of definitions. "Fan Fiction" is fiction written by fans (recalling that the word "fan" is an elision of "fanatic" is not out of place!) and set in the universe of their fanaticism. Some of these stories are mere "continuations" or "prequels" or whatever based very closely indeed upon the object of their desires, such as a story of Lord Greystoke's journey to Africa as a boy set just before the first Tarzan novel, or a story about Jabba the Hutt's successful attempt to cut himself out of the belly of that nasty beast on Tatooine and the vengeance he wreaks upon the entire Hutt family. Then there is the "Mary Sue" story and its (almost incestuously) close relatives, which give the writer an avatar with a central place in the story; all of those teenaged (and not so teenaged) girls who wrote themselves in as Captain Kirk's love interest know exactly what I'm talking about. We can't forget slash fiction, either; "traditionally," this involves explicit sexual relations, often of dubious biological possibility, between characters who are not otherwise "involved." One of the most notorious examples is a line of "Spock/McCoy" stories extending back into the 1960s; I suspect that there are three or four sociology dissertations lurking in just that line of stories! Of course, there are other varieties, too; but these are by far the most common.

Copyright concerns the right to control duplication of both exact original expression and derivative works based on previously existing exact original expression. It does not involve "ideas" per se. California law has a variety of "idea protection" particularly relevant to the entertainment industry, but it is based on common law principles better understood as analogous to unjust enrichment and breach of contract than to copyright. The leading case, and progenitor, is still Desny v. Wilder, although the case report is rather too sterile to really expose what is going on. If you're not already familiar with the way movies "work," I recommend reading Pierce O'Donnell's Fatal Subtraction. In any event, some things are so short or minimal that they cannot be copyrighted. Titles, for example, are explicitly excluded from copyright. Similarly, so would be character names; and invented place names; and other single characteristics.

The problem, at least in copyright law, is "allusions." A series of badly reasoned cases under the 1909 Act continues to dominate thinking. Many of them reached the "right" result despite the poor reasoning; but a lacuna in federal law may have contributed to the tortured reasoning that has made Tarzan, Sam Spade, and H.R. Puf'n'stuf dominant, in their inconsistent way, in "character copyrights." Although some of these violations clearly rise to the level of copyright infringement—for example, lifting an entire speech by a character—and leaving aside any other copyright defenses, we're instead left with a struggle under the fair use defense and the problems with parody. Hint: There is another legal theory, one that was essentially undeveloped during most of the tenure of the 1909 Act, that is a better fit for "improper allusions to a third party's work." But you'll have to wait for the next entry; unless, that is, you've been reading all along and can guess.

A Busy Morning

It's a busy morning in the news today. Very busy indeed, touching on many of my legal interests. And nonlegal interests. YOu may find out more about me than you're comfortable knowing after reading this…

• I cannot approve enough of Professor Ribstein's recommendation of Hoop Dreams. This is particularly relevant for authors, songwriters, artists, and others who are the "direct creators" of copyrightable materials—except that the odds against William and Arthur are probably less than those against direct creators.
• Over at Patently Obvious, Dennis Crouch muses on the Blackberry fiasco. I don't quite agree with him—I think the principle of "rights imply a remedy" might save the original opinion from the Federal Circuit—but it's a very, very close question, and his summary of Canada's argument is cogent. What? A whole nation intervening in a domestic patent dispute? Read his summary; I can't do better.
• Speaking of international IP issues, the IPKat again wonders why the EU's head is up and locked (if you have to ask what it is up, you don't have a military background). And then, too, there's the IPKat's courteous inclusion of a blawg entry that actually translates and explains, in a remarkably clear fashion, a recent French decision on the French equivalent of the DMCA (§ 512, not the anticircumvention part). Since I have to use a dictionary to even read a French newspaper—badly—I really appreciate this commentary. To close the loop: This appears to be very consistent with the most-recent US-based decisions on "DMCA subpoenas"—subpoenas issued to ISPs to discover the identity of various account holders. Imagine that: A French court reached the same conclusion as a US court, for what I infer is approximately the same reason! I'll be blawging on these decisions in more detail in the next couple of days or so; for now, though, the issues as laid out by Jean-Baptiste bear considerable thought.
• Apparently, not all is doom and gloom in publishing. At least, not in Japan, where bookstores reported higher profits in 2004… without any assistance from Harry Potter. The numbers for 2005, then, should be still better, particularly those on and after 16 July (when HP VI comes out).

  The one disturbing aspect of this story is buried in the middle of the article:

  According to the Yomiuri Shimbun (Nov. 24), pairing an unknown manga artist with a popular novel is now seen as a way to develop new manga talent. Many of the new generation of novelists share an affinity with manga writers and the stigma attached to having their novels published as manga is fading.

  Can you say "work for hire" three times fast? I knew you could.

• Then there's the world of athlete doping control. Since the weather is so much nicer in Australia right now than in San Francisco, that's where today's action is. I'm still not entirely sure that ephedrine is truly a performance-enhancing substance for high-level tennis; but then, my argument all along has been that the context in which an athlete performs is at least as important as the substance in question. While ephedrine may act as a stimulant, tennis (at high levels) involves more control than it does strength, and a substantial risk of dehydration that will only be made worse by ephedrine and similar substances. But that would be calling for a rational doping-control policy, something that's just not going to happen in this political environment. And don't kid yourselves: The history of doping control reflects nothing more nor less than politicians attempting to protect the image of sport, regardless of the interests of the athletes or the integrity of competition.
• Last for now, but far from least, President Bush asserted that he's not preparing to invade Iran. As Frankfurter Rundschau noted:

  US-Präsidentenberater Dan Bartlett meinte in einem CNN-Interview, der Beitrag von Hersh sei "voller Ungenauigkeiten". Er bezweifle, dass die von Hersh gezogenen Schlüsse auf Tatsachen basierten.

  "Natürlich sehen wir Iran mit Sorge", sagte Bartlett. Die USA setzten aber auch in der Frage des umstrittenen iranischen Atomprogramms auf Diplomatie sowie die Anstrengungen der Europäer und die Internationale Atomenergiebehörde. Militärisches Vorgehen der USA könne man allerdings nicht grundsätzlich ausschließen.

  "Bush schließt Krieg gegen Iran nicht aus" (18 Jan 2005). I can't say it better than that, so I won't try.

Bloglines

Martin Schwimmer, of the useful and amusing Trademark Blog, has withdrawn himself from BlogLines, a free web-based aggregator service. His stated grounds (not trying to imply that they're not accurate!) are that he is concerned about reframing and imposition of third-party advertising upon his materials.

This is precisely why "author choice" needs to be the principle control on reuse of material: Unforeseen problems with the context of the reuse. I choose to continue allowing BlogLines to aggregate my material. For the present. That is not because I would deny Mr Schwimmer the right to control reuse of his stuff; it is because I choose not to exercise that same control. I simply do not have the same concerns as he does, or at least not to the extent that he does. That may change; in which case, I will simply remove the Atom feed from this blawg. It's all-or-nothing for me: most of the offline aggregators are, IMNSHO, at least as prone to the problems that would cause me to withdraw from aggregation as is BlogLines.

The perceptive will notice that this same argument applies to file-sharing: That it's fine with the approval of the copyright holder, and not without that approval. The real fight is, or should be, who has that copyright and the right to approve or disapprove reuses of material, carefully avoiding the thicket of "creating derivative works from the material." See Ellison v. Robertson, 357 F.3d 1072 (9th Cir. 2004). The "free advertising" theory has been repeatedly debunked in Napster (among other decisions). Mr Schwimmer has, as his right, determined not to authorize reuses of his material by BlogLines. So I'll continue reading his useful blawg via a direct link.

See Spot Litigate. Litigate, Spot, Litigate!

In an entirely unsurprising development, Pearson Education—a unit of Penguin USA—has sued the Little, Brown unit of Warner Books for a parody. That happens all the time… but a parody of Dick and Jane in Yiddish? If nothing else, this lawsuit will do three things:

1. It will prove to anybody who had any remaining doubts whatsoever that neither lawyers nor publishing executives have anything remotely resembling a sense of humor;
2. It demonstrates the truly ridiculous lengths to which those humorless lawyers must advise their clients to go because the Lanham Act is a "rabid Rottweiler" statute (you either use it to protect your turf, or the animal-control authorities come around and take it away); and, last but not least,
3. It will be settled at some point so that the publishers don't risk setting an adverse precedent… in either direction.

There are a couple of points to consider, though. For the morbidly curious, the case is captioned Pearson Education Inc. v. Little Brown and Company et al., No. 2:05-cv-00033-CBM-JWJ (C.D. Cal.) (03 Jan. 2005) (before Conseulo B. Marshall, J.). That's right: a New York publisher suing a Boston publisher in LA. Why? Because it can; the Boston publisher's "supervisor" in the corporate food chain is in LA. And because the Ninth Circuit is the home of that stupid Cat-in-the-Hat/OJ doctrine of the "target parody."

The second thing to consider, though, is that a settlement of this case would probably not be in the public interest. There is a significant public interest in having uniform national law regarding copyrightability of various aspects of literary works. There is an even more significant public interest in getting some coherent law on that murky, grey overlap between trademark and copyright for characters and settings. As it stands, there is a serious, but iceberg-like, three-way circuit split presented by this case. Details are obviously for a law review article with too many footnotes, too many "on the one hand…" explanations, and too few declarative sentences; and I don't have the time to do the research and writing with everything else I have going on (including a closely related piece); but some enterprising student looking for a law review note topic is welcome to it! If you e-mail me politely, I'll even point you toward the eleven cases that delineate that three-way split. I'm patient, too; I know that the current round of topics has already been selected, and that the next round isn't until August or September.

More Copyright Wierdness

Hot off the virtual press, the DC Circuit has affirmed the Library of Congress's setting of rates for 'net-based music broadcasters. In Beethoven.com LLC v. Librarian of Congress, No. 02–1244 (D.C. Cir. 14 Jan. 2005) (PDF, 80kb), the DC Circuit lays out a sordid tale in which most of the participants with financial interests come off as schmucks interested only in creating a distorted factual record. That's not to say that one always brings one's dirty laundry into the court; but the particular manipulation described seems to implicate the duty of candor to a tribunal. Basically, what both sides did was begin negotiations to set "benchmark" agreements proving their point, then abandon the negotiations that were not going to result in the kind of rates they wanted to see.

No doubt the "small 'net rebroadcasters" will whine and moan that they'll be driven out of business by "excessive" rates. If one does the math, though, one will see that the artists might, if they're lucky, see $0.00007 per performance credited to them under typical industry terms—before agent fees, "unpaid recording studio rentals," taxes, and the plethora of other fees charges to a performer. To put it another way, for the artist to get $1 in royalty credit, not quite 15,000 people have to listen to a particular performance from a particular outlet. That same audience costs the 'net broadcaster about $10. Somehow, I'm having a great deal of difficulty generating any sympathy. For anybody except the unpaid artists.

Incoherent Further Musings

The Cobb County decision will have some interesting ripple effects. Some of these are obvious, some are not; some are trivial, some are not. In no particular order, so as to maintain the pretense of incoherence trumpeted in the title of this entry and thereby avoid committing an unfair or deceptive act or practice—if you think that's a thinly veiled attack on people who select misleading titles and brand names, you're onto something—

• Judge Cooper has just eliminated his chances to advance to the Eleventh Circuit Court of Appeals or elsewhere. He will never be forgiven for the opinion. A look at the later track-record of judges who made pro-civil-rights findings in the 1950s and 1960s is sobering enough, before considering that judicial nominations are now far more factionalized and partisan than they were then. No good deed goes unpunished.
• The publishing industry needs to pay attention to the implications of Judge Cooper's analysis. The bread-and-butter for most mid-major and major publishers is somehow related, directly or indirectly, to the educational market. This means more than just the elementary social science text sort of thing; it includes public and school libraries, and college (and the occasional high school) supplemental and non-text-book readings (remember all of those copies of The Grapes of Wrath that showed up for three weeks in February among the sophomores?). One can anticipate two effects. The first, and most obvious, is going to be redoubled efforts to force publishers to not even publish "objectionable" material. I suppose that means removing Shakespeare from libraries, since there's all that extramarital sex, and smut, and cannibalism, and… never mind. More subtly, though, you're going to see efforts to get publishers to include disclaimers such as the rejected sticker in the front of their textbooks from the very beginning. Some of the publishers out there—I won't name any in particular, but their initials are [censored]—will cave in readily. That, in turn, is going to result in nonsense like Texas refusing to adopt books that do not have such a disclaimer; which, in a cycle driven by the only verifiable faster-than-light communication system, will cause virtually all publishers to do so.
• Of course, there's a solution that is readily available. Perhaps some enterprising print shop can make sheets of these stickers available for parents to place on their own students' textbooks. Better make sure they're removable, though. The problem with this approach is that it doesn't meet the real objective of the parents in question. They're not worried about their own children. They're worried about everyone else's children. And, unless they can meddle in provide righteous correction of The Other Guys' Kids, it does no good to protect their own children. (The attentive can probably figure out that this objection works both ways.)
• At least nobody had to be convicted of a criminal offense to reach this result. Remember, kids—John Scopes lost.

More Thoughts on Selman

My rather long post of yesterday on the Cobb County textbook sticker concentrated on the substance of the opinion. No doubt, that will continue to get the lion's share of coverage. In another sense, though, Judge Cooper's opinion provides an excellent example of the struggle with interpretive methods that must underly retail—that is, instance by instance—justice and government.

Judge Cooper's opinion rests upon an interpretive paradigm that seems rather different from the typical opinion on these matters. This matter was decided after a full trial; no "construing all facts in favor of the nonmoving party" or "assuming, as we must, that all allegations in the complaint are true" here! That, however, is not all that Judge Cooper did that breaks with "legal tradition": He took notice of reality beyond the parties' attempts to confine it. The weakest part of the opinion—rhetorically, structurally, factually, and logically—is his examination of the first prong of the Lemon test. Although he didn't say it this bluntly, because he is at least marginally constrained by the need to maintain the dignity of the bench, the dozen or so pages devoted to that analysis boil down to this (as I might have written it in a particularly charitable mood):

The School Board was careful to avoid any overt statement of religious purpose. So long as a rational person who knew nothing of preexisting conditions, personalities, political pressures, election results, or virtually anything else of substance related to the matter's context could believe that the School Board's pointed silences and post hoc non-religious rationalizations for the Sticker indicate that there was, in this specific instance, a nonsectarian purpose, I am constrained to find that there was one. Adler v. Duval Cty. Sch. Bd., 206 F.3d 1070 (11th Cir. 2000), reinstated on remand, 250 F.3d 1330 (11th Cir. 2001); Bown v. Gwinnett Cty. Sch. Dist., 112 F.3d 1464, 1469 (11th Cir. 1997). The context indicating that this merely evades reality cannot be considered when analyzing the purpose behind actions of the political branches of government; we assume that all legislators, executives, and administrators have only constitutional motives, regardless of what we might infer of those motives from other actions, evidence, and statements outside the scope of the particular matter. Only a clearly "sham" secular purpose can overcome this presumption, and the evidence in this matter does not reach that exceptionally stringent standard. Edwards v. Aguillar, 482 U.S. 578, 586–87 (1987); Wallace v Jaffree, 472 U.S. 38, 75–76 (1985) (O'Connor, J., concurring) ("Even if the text and official history of a [statement] express no secular purpose, the [statement] should be held to have an improper purpose only if it is beyond purview that endorsement of religion or a religious belief 'was and is the… reason for the statement's existence.'") (emphasis added).

(Note, again, this is not an actual quotation, but a hypothetical passage.)

This does not mean that reality was completely on vacation in Selman. Bluntly, it is clear from the evidence that at minimum advancement of a religious point of view under political pressure was the sticker's purpose; Judge Cooper couldn't make that finding, though, because precedent restricts him from being properly skeptical of stated motivations. Instead, he reserved reality for the part of the case in which he was explicitly allowed to consider it: the result of the policy, however laudable (or at least not-unlaudable) its purpose may have been. In remarkably temperate language, Judge Cooper found that the sticker advanced the political agenda of Christian fundamentalists in Cobb County at the expense of those residents of Cobb County who do not share that set of beliefs; this is enough to invalidate the sticker, and the underlying policy. He did so principally by relying upon context, and not literal language and findings. The irony that his legal interpretive method itself contradicts the particular religious interpretive method at issue will no doubt escape virtually every media representative, and too many legal pundits and scholars. Most will instead argue on the wisdom of the policy, and the supposedly conflicting needs to educate children in both science and "proper" belief, when Judge Cooper properly saw that the question in this matter is quite different.

Too often, a legal proceeding is treated as if it is a laboratory experiment. That is, no outside variables are allowed to impinge on the experiment (although any competent scientist could tell you that no such experiment has ever been done; if nothing else, the quality and cleanliness of one's lab equipment matter). Judge Cooper recognized that in the "laboratory" of representative politics, there are always outside variables, and that they are particularly relevant when the argument is over what may be in the laboratory in the first place. The reflexive irony of this recognition is far too subtle for ordinary public discourse; which, I suppose, puts it well within the bounds of the blawgosphere.

I Am Not an Animal a Specialist!

<WinkWinkNudgeNudgeSayNoMore> I must gently correct a misimpression that may have been left by Mr Gaiman's post that I didn't even notice the first time around, primarily because I'm so tired of dealing with the issue. I was referred to as a "specialist in law for writers" in that post. I am not. My practice concentrates on representing and advising writers on legal issues; but I am not a specialist. The Bar says so. </WinkWinkNudgeNudgeSayNoMore>

And some lawyers wonder why the legal profession has such a poor reputation for splitting hairs. It's ok for me to say "I'm a copyright attorney," or "I practice copyright law;" but it's not ok for me to say "I specialize in copyright law." (Not true, but used for the sake of illustration.) On the other hand, the much deeper divide involving "I'm a litigator", which actually expresses a real distinction, gets no attention whatsoever.

As I see things, intellectual honesty compels bar regulators to do one of two things. Option one is to embrace the medical profession's idea of "specialization," including specialty exams and certifications—hopefully at the expense of the bar exam, which really tests almost nothing of value to practicing (or teaching) attorneys. Option two is to continue denying the reality of shifting meaning in language and maintain the status quo. I almost cringed last weekend at one football broadcast that properly referred to kickers, punters, and kick returners as "specialist positions" because these are "professional athletes" who don't have any particular additional certification.

Care to take a guess which way I think the profession will lumber?

A Faith-Based Initiative

… that clearly violates the constitution, according to the Hon. Clarence Cooper (Northern District of Georgia). In an opinion released earlier today (PDF image file, 2.5mb), Judge Cooper essentially held that Cobb County, Georgia may not constitutionally require schools to put a sticker proclaiming that evolution is only a theory and not a fact in science textbooks.

Since this is an image file, I'll convert some of the more salient language to searchable text later in this posting. The key thing to remember is that this opinion is the judge's equivalent of a jury finding after a full trial. Ordinarily, opinions on this kind of issue are at preliminary stages of cases. The distinction is crucially important in this matter, because on appeal a court must give pretty extreme deference to the judge's findings of fact. In order to overturn the findings of fact, an appellate court must find that they are wrong under a "clear and convincing" standard based only on the record in the trial (not, as Inscrutable Design advocates will no doubt attempt, on further "expert testimony" brought in specifically to "refute" the judge's findings). This is therefore almost a unique instance in the law of the Establishment Clause: virtually every other case was decided based upon findings of fact not entitled to this level of deference. That, in turn, is going to mean some pretty fascinating gyrations in attempts to overturn or otherwise modify the judgment.

All of that said, Judge Cooper does an exemplary job setting the stage for the matter, telling us what the case is not about and then its actual limits.

Due to the various challenges that arise in this area, the Court believes it prudent to state from the outset what this case is not about. First, the Court is not resolving in this case whether science and religion are mutually exclusive, and the Court takes no position on the origin of the human species. Second, the issue before the Court is not whether it is constitutionally permissible for public school teachers to teach intelligent design, the theory that only an intelligent or supernatural cause could be responsible for life, living things, and the complexity of the universe. Third, this case does not resolve the ongoing debate regarding whether evolution is a fact or theory[,] or whether evolution should be taught as fact or theory.

To be clear, this opinion resolves only a legal dispute. Specifically, the narrow issue raised by this facial challenge is whether the sticker placed in certain Cobb County School District science textbooks violates the Establishment Clause of the First Amendment of the United States Constitution and/or Article I, Section II, Paragraph VII of the Constitution of the State of Georgia.

Slip op. at 2 (italics in original). The court next descended into the quagmire of "sham" purposes and the Lemon test. Leaving aside the psychological reality here—that every single one of these purported "justifications" is merely a post hoc rationalization for accommodation of religion, which is itself not necessarily inconsistent with the Establishment Clause but does/should more seriously question it, as the Supreme Court recognized in Santa Fe—the court was essentially constrained by Eleventh Circuit precedent to find that the sticker and accompanying policy had an "adequate" secular basis to pass the extremely deferential standard of review. In other words, one prong of the three-part Lemon test down; one or two to go.

At this point, I could go off onto an extremely theoretical tangent about the justification for the Eleventh Circuit's melding of the two remaining prongs of Lemon into a single-prong "effects" text (see slip op. at 19–21). But I won't, because that would deflect attention from the most critical part of Judge Cooper's opinion: the analysis of the evidence before him on whether, regardless of the logical path used to reach it, the sticker results in advancing religion in a manner inconsistent with the Establishment Clause. Note that this is not the same thing as accommodating religion, such as establishing a school holiday schedule based around Christmas to accommodate the family schedules of the majority of its students (so long, that is, as students from other religions receive at least equivalent consideration in terms of "excused absences" for their own "high holy days").

The critical remaining language occurs near the beginning of the section on the resulting impression left by the sticker. This is good writing practice, because it places the following discussion in a pretty complete context.

In this case, the Court believes that an informed, reasonable observer would interpret the Sticker to contain a message of endorsement of religion. That is, the Sticker sends a message to those who oppose evolution for religious reasons that they are favored members of the political community, while the Sticker sends a message to those who believe in evolution that they are political outsiders. This is particularly so in a case such as this one involving impressionable public school students who are likely to view the Sticker as a union of church and state. Given that courts should be "particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools," the Court is of the opinion that the Sticker must be declared unconstitutional.

Slip op. at 31–32 (internal citations omitted). Only a page or so later, Judge Cooper admirably summarizes the evidence for the religiously charged political environment of the school board's decision. This summary is admirable for its relative even-handedness, despite the accusations that will later come that it implies wrongfulness (which, although true, are themselves wrongful… but there's plenty of reflexiveness to go around in Establishment Clause cases!).

[T]he informed, reasonable observer would know that a significant number of Cobb County citizens had voiced opposition to the teaching of evolution for religious reasons. The informed, reasonable observer would also know that despite this opposition, the Cobb County School District was in the process of revising its policy and regulation[s] regarding theories of origin to reflect that evolution would be taught in Cobb County schools. Further, the informed, reasonable observer would be aware that citizens and parents largely motivated by religion put pressure on the School Board to implement certain measures that would nevertheless dilute the teaching of evolution, including placing a disclaimer in the front of certain textbooks that distinguished evolution as a theory, not a fact. Finally, the informed, reasonable observer would be aware that the language of the Sticker essentially mirrors the viewpoint of these religiously-motivated [sic] citizens.

Slip op. at 33. The real knife in the back, though, comes a few pages later, when Judge Cooper notes that "the Sticker targets only evolution to be approached with an open mind, carefully studied, and critically considered without explaining why it is the only theory being isolated as such." Slip op. at 36 (emphasis added). Judge Cooper doesn't neglect the dishonest misuse of the technical term "theory" in a context implying that a nontechnical meaning should be applied. Slip op. at 38–39. OK, he doesn't go so far as to say that the intentional "meaning slippage" is dishonest; he does emphasize, though, that the modifier that would have made clear that we were talking about a technical meaning—"scientific"—was omitted with malice aforethought by somebody, making the sticker an inappropriate statement.

Overall, Judge Cooper has managed to strike a nice balance between "blind justice" that would ignore context and an opinion subject to excoriation as being actively hostile to deeply held beliefs. "[T]he Sticker here disavows the endorsement of evolution, a scientific theory, and contains an implicit religious message advanced by Christian fundamentalists and creationists, which is discernable after one considers the historical context of the statement that evolution is a theory and not a fact." Slip op. at 41. From a rhetorical perspective, Judge Cooper has successfully managed to ground his opinion in reality—the real motivations, as virtually mandated by Santa Fe—without disrespecting the beliefs expressed by persons with constitutionally improper motives.

An Inside Job

The publishing industry operates in a culture of secrecy. And I'm not just talking about its internals (try deciphering a royalty statement sometime); I'm talking about the way it presents itself to the public. Or, as the case may be, allows itself to be presented to the public.

If you don't believe me, ask Neil Gaiman, an award-winning author who knows of what he speaks. His journal includes an article today on Everything You Wanted To Know About Literary Agents… (but didn't know you needed to ask). I suppose I need to enter a couple of caveats on his information sources: Jim Fisher, the author of Ten Percent of Nothing, is a client of mine whom I've defended from SLAPP-type actions initiated by various scam publishers and agents; Teresa Nielsen-Hayden and I have enjoyed a healthy correspondence on the industry over the years, and have independently reached many of the same conclusions (although mine are, admittedly, somewhat more cynical); I work closely with Victoria Strauss and Ann Crispin; I work with Jim Macdonald; I work closely with Kent Brewster; and two of the other references on the list will eventually lead back here. So, perhaps, there's a flavor of multiple people saying the same thing, who all talk to each other. Critics will claim we're a cabal of unsuccessful and marginally successful writers venting our spleen on the industry. How anyone could call Jim Fisher, for example, "unsuccessful" in the publishing industry is beyond me; but there it is. What is interesting is that so many of us with such a variety of backgrounds and methods could come to the same basic conclusions, and even some of the same detailed conclusions; in the best of all possible worlds, this would give some pause to the apologists for vanity presses and literary fraud out there. This is not the best of all possible worlds.

And now, an unsolicited editorial on a self-defeating industry practice. More and more publishers are going to an "agented submissions only" policy. Admittedly, there's a lot of unpublishable crap coming over the transom, and it is a real burden to deal with it. However, those policies practically beg for agents like Dorothy Deering to set up shop, because it would be a massive antitrust violation to say "AAR-member-sponsored submissions only." (Then, too, the AAR is itself no panacaea; it has a few bad apples as members.) Leaving aside the public interest aspect of this, keep in mind that groundbreaking works often have difficulty reaching agents in the first place; and becoming known as a publisher friendly to groundbreaking works can't hurt in attracting them. Then, too, there's the question of how much of one's acquisition policy one wants determined by people outside not just the Editorial Department, but outside of the company entirely. In the end, that's what an agented-submissions-only policy does: It delegates to the agents the proper acquisition function of editors, resulting in a fast-acting feedback loop. Examples: Look at all of the "wizards at school" books now flooding submissions in response to the success of Harry Potter (most of which don't acknowledge Jane Yolen, among others, who preceded J.K. Rowling); look at the spate of "secret histories" now straining mailbags in the wake of Dan Brown's unimpressive-but-bestselling screed; and so on. Then stop to think about what has been excluded from the literary marketplace by this kind of inaccurate prejudgment—or, rather, about what publishers never even see that has been so excluded.

I've run some numbers; it would require hitting a within-category bestseller out of the slush pile only once every thirty months or so to pay for a full-time flunky at typical publishing industry wages and benefits who sat with a checklist and winnowed a 2,000-manuscript-a-month slush pile down to those manuscripts worth further review. That is what is being "saved" by agented-submissions-only policies. And then maybe more-experienced editors could be released from marketing meetings (at which they won't be heard anyway) to evaluate the ten or twenty manuscripts that make it through that process—in other words, to be editors.

Naaaaah. Ain't gonna happen.

Verification

Anne Applebaum's essay this morning in the Washington Post on terror is, if anything, a bit too optimistic about the possible value of torture in interrogation—and it's not very optimistic.

Given the overwhelmingly negative evidence, the really interesting question is not whether torture works but why so many people in our society want to believe that it works. At the moment, there is a myth in circulation, a fable that goes something like this: Radical terrorists will take advantage of our fussy legality, so we may have to suspend it to beat them. Radical terrorists mock our namby-pamby prisons, so we must make them tougher. Radical terrorists are nasty, so to defeat them we have to be nastier.

Perhaps it's reassuring to tell ourselves tales about the new forms of "toughness" we need, or to talk about the special rules we will create to defeat this special enemy. Unfortunately, that toughness is self-deceptive and self-destructive. Ultimately it will be self-defeating as well.

"The Torture Myth" (12 Jan 05).

One of the collateral effects that Ms. Applebaum does not discuss in her essay is danger of relying upon unverified testimony extracted by torture. Torture doesn't make people tell the truth; it makes them say something—anything—to get the pain to stop. The problem is that too many people without experience or knowledge of various interrogation techniques, such as people who've watched too many spy thrillers, will unquestioningly accept what comes out of a torture session as true and act upon it without verification. Leaving aside the "one can only tell what one knows" problem—it's very rare to have the people who really know all of the operational details in one's custody before the operation—there remains a very real threat of misleading "confessions" that somehow get greater imprimatur than they deserve because they were extracted under torture.

So, without even going into the moral, ethical, and legal issues, we can (and should) reject torture as an authorized interrogation method because it doesn't do what it's reputed (among the ignorant) to do. It's one thing to break a man (or woman); it's another thing entirely to turn that break into useful, verifiable information, or even to find such information among the revelations one will get concerning cheating on that third-grade spelling quiz; even that presumes that the subject actually knows (and knows he/she knows) the sought-for information in the first place.

Rather a wild trip around the news this morning. Really wild, ranging across three continents.

To begin with, let's consider software patents. Bill Gates seems to have a wild hair up his butt about software patents, while IBM may be adopting a more-relaxed attitude. Although dedicating 500 patents for public use is a good step, it's less than it sounds (at least at present), as it represents a little over 15% of the patents (admittedly, for all purposes) that IBM was granted in 2004 alone. Perhaps the most-perceptive comment offered in the media thus far has been this one (from that same article in the Guardian):

Copyrighting allows people to benefit from their labours, but software patents allow the companies with the largest legal departments to benefit from everyone else's work. For the moment, the folly stops at the borders of Europe. An attempt to allow software patenting within the EU was halted last month by a Polish veto, which shows that a post-communist country understands the demands of a market capitalism better than the world's richest capitalist.

Actually, just reading the IP Clause (Art. I, § 8, cl. 8) should show the real problem.

The Congress shall have Power… To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries…

I'm afraid that's sort of like the Militia Clause (which, of course, might be some interesting guidance for those who would read the Second Amendment without it): The precatory language indicates that any conduct that tends to stifle innovation is outside the intent of the IP clause. Of course, that's an awfully fine distinction, and leaves open the question of whether the Necessary and Proper Clause (Art. I, § 8, cl. 18) authorizes Congress to go beyond pure "pro-innovation" efforts, or whether this is a foreseeable consequence. In any event, though, what it clearly does not contemplate is offensive use of copyright and patent as part of static "portfolios" not in active exploitation—taking out a software patent and sitting on it without either exploiting it or licensing others to do so. Of course, solving this is not trivial without causing other problems; but Gates's attitude will no doubt be ascribed to everyone else who wants to protect his/her IP, including authors, illustrators, photographers, etc.

Then there's the Wild World of Sports. Frequent readers of this blawg will know that I'm a fan neither of draconian antidoping efforts nor of the shamateurism of college "student-athletes". Perhaps this seems odd for someone from a hard-core science background, but I believe in a certain kind of magic. Frazier's Rule of Names is important psychologically, philosophically, and substantively: Naming has a powerful influence on behavior and even reality. (In a more rigorous sense, this is a weak form of the Whorf hypothesis.) By choosing to call its efforts against abuse of performance-enhancing substances "antidoping," the various athletic authorities have tried to paint their position as being against cheating and stupidity. This is inconsistent with (a) advertisements for sport drinks of dubious healthfulness and bedroom performance-"enhancers" at athletic events; (b) judging and refereeing "standards"; and/or (c) athletes like Randy Moss.

Well, maybe not with Randy Moss, after all; at least we don't have the NCAA trying to convince us that he's a scholar of some kind. That's not to say that some "student-athletes" aren't; just that, with exceptions notable precisely by their rarity, those on scholarship in revenue sports generally aren't. I would be perhaps a bit more draconian than the NCAA: Students should not be eligible for athletic scholarships unless their numeric indicators at the time of admission place them in the top 75% of the class that actually enters, not curable with summer school or less than two years of 50th-percentile academic performance at the same school. OK, maybe this is going to hurt Stanford a lot more than, say, Fresno State; I'm not sure that would be a bad thing. It can, however, be done; the soccer team my sophomore year in college started nine National Merit Scholars and finished third nationally. OK, so it was Division III—but at that time, there really wasn't a helluva lot of difference between Division I and Division III play.

And, for a really warped vision of reality, take a look at this Guardian article on FOIA, issued in anticipation of the UK's own new equivalent. I only wish that things were as simple as implied—and Ms Left properly does not imply they are simple.