Scrivener's Error

null
Scrivener's Error	Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

22 October 2005

12:54 [GMT-6]

Author's Guild v. Google (9): Of Chickens and Eggs

The entire dispute arises from a multidimensional culture clash among authors,²³ publishers, libraries, ordinary readers, and information entrepreneurs.²⁴ In no particular order, those dimensions include:

The historical difficulty and expense of printing books, which is entirely discounted by most information entrepreneurs. The key problem here is the assumption that conditions at t_{original publication} are comparable to those at t_{copyright renewal} and to those at t_now.
The refusal to recognize that the means and ends of the Copyright Clause are interdependent. On the one hand, we have overreaching by people like Margaret Mitchell's heirs, on the ground that "exclusive right" is unlimited in scope and purpose; on the other hand, we have "information wants to be free"²⁵ advocates who look only to "promoting Progress" and forget that the Constitution specifies the means to be used.
The frustration of ordinary readers in not being able to obtain the materials they want/need in a timely fashion because those materials are relatively rare physical items held somewhere other than their local libraries. That's not to say that libraries don't feel the same frustration; they've just learned to live with it better.
The conception that all information has approximately the same (minimal) value that seems to underly much of information entrepreneur culture.
The continuing struggle between authors and those who exploit their works over accurate accounting for their works.
The inability of publishers and ordinary readers to communicate—let alone agree—on what needs to be printed, how long to keep a work in print, and how to price or distribute that material.

The real problem here is inherent market failure at the boundaries of intellectual property, which itself has several dimensions. Most market theory is Coase-positive, in the sense that it assumes that most markets are—or, at least, ideally should be—compliant with the Coase theorem. Nowhere, however, is the endowment effect more apparent than in psychological, actual, and creative claims of authorship. Throw in grossly unbalanced initial power and economic resource allocations and information asymmetries that would be laughed off a law-school final exam as completely implausible, stir in the disjuncture between copyright (and, for that matter, patent and trademark) duration and both the perceived rate of Progress and lengthening lifespans,²⁶ and we have the ingredients for a swirling brew of conflicts troubled by hotspots no amount of stirring seems able to disspell.

No, I don't have a universal solution. Neither, however, do I have a whole lot of respect for either side in Author's Guild v. Google (and only a little bit more for the AAP version). Both sides are so focussed on short-term enlightened self-interest that they've forgotten that overriding purpose: encouraging Progress.

In the generic sense. Arriba Soft points out that it's not just wordsmiths who have copyright interests that are the subject of this kind of dispute.
This includes both the actual "information sellers" like Google and those who would acquire others' information for reuse for their own purposes. The latter group tends to attack both databases and copyrights. Ironically, it is often more dismissive of copyright claims than of "sweat of the brow" claims in databases—at least, I find it ironic in the face of Feist.
Conversely, entertainers want to eat.
And perhaps—or more than perhaps—the continuing expansion of leisure in absolute and relative terms (and, for that matter, in perceived value).

Ritual disclaimer: This blog contains legal commentary, but it is only general commentary. It does not constitute legal advice for your situation. It does not create an attorney-client relationship or any other expectation of confidentiality, nor is it an offer of representation.

All material © 2003–09 except where otherwise indicated. All rights reserved. N.B. This blawg does not use the Creative Commons License, although I'm usually pretty good-natured about permissions for attributed reuse.

Site Feed

I approve of no advertising appearing on or through syndication for anything other than the syndication itself; any such advertising violates the limited reuse license implied by voluntarily including syndication code on this blawg.

Current Poll

None at present.

Archives

Warped Weft

Now live at the new site. I have arranged some of the more infamous threads that have appeared here by unravelling them from the blawg tapestry (and hopefully eliminating some of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.

Links of Interest

Links open in a new window.

Writer Beware and the Writer Beware Blog provide essential knowledge for writers who don't want to be ripped off
Writing-World.com published by the former managing editor of the now-defunct Inklings
Agent Research & Evaluation provides both free and paid analyses of literary agents
US Copyright Office, including both registration forms and records and quite a bit of other helpful information
Trademark Electronic Search System (TESS) allows searches of granted, pending, and some rejected trademark registrations
US Supreme Court Opinions from the current and past couple of terms
Law Library of Congress includes statutes for free
The Public Library of Law can help you find the law... but not use it in court, as many of its resources are not in proper form and do not provide all of the citation information needed in court papers
Legal, free e-books are available through Online Books (University of Pennsylvania) and Shakespeare (MIT)
Legal, free music is available through
- ClassicCat.net (what kind of music do you think you'll find here?)
- Music.Download.com (long-awaited successor to MP3.com)
- Janis Ian (artist)
- John McCutcheon (artist)

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

A blawg is sort of like a blog on legal issues, but usually has a lot more links to outside resources (other than other blogs) than does a typical blog. Scrivener's Error is a blawg, not just a blog. You can find other blawgs at < ? law blogs # >.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the Supreme Court, don't forget SCOTUSBlog.
Some academics' blawgs with a variety of political (and doctrinal) viewpoints:
- Professor Anthony Arend (Georgetown Law)
- Professor Stephen Bainbridge (UCLA Law) (aka "The Perfesser")
- Professor Jack Balkin (Yale Law)
- Professor Dennis Crouch (Missouri Law) (better known as Patently-O)
- Professor Michael Froomkin (University of Miami Law)
- Professor Eric Goldman (Santa Clara University Law)
- Professor Rick Hasen (Loyola-LA Law)
- Professor Brian Leiter (U of Chicago Law/Philosophy)
- Professor Lawrence Lessig (Stanford Law)
- Professor Michael Madison (Pitt Law)
- Professor Larry Ribstein (University of Illinois Law)
- Professor Lawrence Solum (University of Illinois Law)
- Professor Rebecca Tushnet (Georgetown Law)
- Professor Tom Ulen (University of Illinois Law)
BoingBoing, by speculative fiction writer (and 'net activist) Cory Doctorow, is quite hostile to copyright enforcement efforts, particularly regarding file-sharing
The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance
Cyberlaw (Stanford) has its agenda grounded firmly in the so-called "digital commons," which might make a bit more sense if any of the advocates of that viewpoint understood diddly-squat about population ecology
The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

Searches

Optimized for at 1024x768.