Unnews

It's been a slow news week in publishing and related legal areas — at least insofar as anything that is actually "news". Sure, there have been the usual manufactured publicity gags, like these complaints about lack of recognition by an illiterate's ghost writer; but the Frankfurt Book Fair has, as usual, delayed anything of real import for a couple of weeks. Thus, we turn to other areas.

For one semi-amusing moment, we had the whole "Chavez/Chomsky debate". Is Bush really the Devil? Some say not, with a much more apparent sense of both humor and irony than any of the participants in that debate. The biggest irony is that a book by a borderline-irrational-left-fringe academic is selling better as a result, yet again demonstrating the short attention-span (and memory) of the American public and publishing industry. Chomsky has been saying the same thing for a quarter of a century — I found almost nothing new in that book, whether in the sense of new content/insight or a new explanation that illuminates issues.

Sony has announced US availability of its DRM-crippled e-book reader using so-called "liquid paper" technology—with a list price of $350 and probable street price of $295. Contrast this with the increasing reliance on downloaded music by classical music listeners (of which I'm one, but all of my stuff is legal). At least part of this is pure economics. I have always been annoyed by the essential refusal to "discount" classical music physical media; even the big-box stores and Amazon sell it at list, and always have, without the excuse (at least most of the time) that they're paying mechanical royalties to the composer. And "size of unit" can't be much of an excuse when comparing a piano soloist or string quartet to midcentury American pop music! Part of the problem, too, is that the classical repetoire consists of a lot more differing lengths of works than does the popular repetoire. It's the very, very rare popular music work of greater than ten minutes or so in length that is viewed as a single whole; no serious listener downloads just one movement of even a relatively obscure (or, at least, unfamous) Beethoven piano sonata, while no serious listener downloads an entire Weird Al Yankovic album to listen to as a whole. OK, you can't be serious and download Weird Al in any form, but you know what I mean. (Ironically, the semiofficial animated video for that piece is available only in nondownloadable form.)

Last, we've got censorship. Censorship on TV, reminding me very much of a line from Apocalypse Now!:

KURTZ: We train young men to drop fire on people. But their commanders won't allow them to write "fuck" on their airplanes—because it's obscene!

Apparently, neither will the FCC. Nor can we even perform an "updated" 200-year-old opera¹ set in Turkey, because that might insult Muslims. That's sort of like insulting Turkey, but worse… because, however misguided the Turkish approach, at least it has a basis in (what passes for) law.

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1. I don't agree with the initial part of this article at all, which betrays more than a bit of both ignorance and Mozart snobbery. I've been struggling against both of those for years, and it's really disheartening to see them both demonstrated in a single paragraph. Too, that article misses an opportunity to point out that Idomeneo, like Figaro, was aimed at politics in Paris: A subject always ripe for satire, parody, and criticism.

The Chickens Come Home to Roost

Professor Patry notes the recent Magistrate Judge's recommendation¹ in the Perdue/Dan Brown tempest-in-a-thimble that Perdue should not be required to pay attorney's fees for losing his copyright counterclaims. Magistrate Judge Fox's recommendation (PDF) is commendably clear; it is written in English, it doesn't rely upon mulitiple citations for otherwise obvious points, and it rests upon the minimum level of legal jargon.

Unfortunately, it is also completely unrealistic, for reasons well beyond Magistrate Judge Fox's authority to reach. Here is one of several examples:

For their part, the movants maintain that the publicity campaign Perdue waged concerning his infringement allegations resulted in a resurgence of interest in one of his books, which was then not in print, but was reissued, and increased the number of sales his other book garnered. The movants contend that, owing to the publishing industry's typical customs and practices, the financial rewards they allege Perdue reaped, as a result of the instant controversy, would not be reflected in the income tax returns he disclosed to the Court, but likely would be reflected in the income tax return Perdue filed subsequent to making his 2004 income tax filing.

(slip op. at 10). Magistrate Judge Fox essentially accepts these assertions as correct.² They aren't even close to reality. First, and perhaps most important, they neglect to allow for reserves against returns (which, given Random House's rapacious history on reserves in the last decade, is rather disturbing). Any large increase in demand for a long-ago-published book typically results in a large increase in the reserve against returns. In this instance, a typical change might have increased the reserve from 25% to 35% of shipped books—which then, in a breathtaking bit of accounting chicanery that is also "the publishing industry's typical customs and practice[]," would be calculated based on total shipments over the life of the book — not just the new demand. It gets better, too; those reserves are typically not released for at least 36 months after they are established, if ever (and "if ever" is a very good description of what happens when an out-of-print book gets reissued).

So, then, is poor Random House going to be out $310,000 in attorney's fees? I think not. Two other aspects of "the publishing industry's typical customs and practices" indicate otherwise. The most obvious is that the defense was conducted by its insurer. For a smaller publisher, this could easily result in ruinous increases in its premiums when the policy is up for renewal, especially since the premium-setting system is nowhere more opaque than in E&O policies in all segments of the entertainment industry. For a publisher the size of Random House, or a film studio the size of Sony, there's a decent chance that such an increase — if it were even imposed — would amount to less than pocket change.

More disturbing, though, are the presumed contractual consequences. In the publishing contract, Dan Brown made a warranty to Random House that his work did not infringe on any copyrights, and indemnified Random House against "costs and attorney's fees" in defending against such claims—even successful defenses against frivolous claims.³ Thus — at least in theory — a party who did not join in the motion for fees against Lewis Perdue is on the hook for those fees. Given the UK infringement action,⁴ that may be a case of poetic justice — even without any rhyme, meter, or reason. It is not, however, a ground for accepting "the publishing industry's typical customs and practices" as deserving any acceptance or approval.

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1. That's "recommendation," not "decision" or "opinion." It is not precedent; it does not even bind the parties in the case unless/until the District Court judge confirms and/or modifies it in his own opinion. I'd make a bet that someone in the publishing "media" will mischaracterize the recommendation as somehow binding, but I've already lost that bet.
2. The timing issue is also a bit disingenuous, as either the parties or Magistrate Judge Fox could certainly call for Perdue's 2005 tax returns by this date, as all ordinarily available extensions for filing that return expired well over a month ago. More importantly, though, the most-important documents would have been not the tax returns, but the royalty statements… which would have been due before Random House's motion was filed.
3. Unless, that is, Random House negotiated with Dan Brown for a less-onerous-to-the-author warranty or indemnification. <SARCASM> But Random House's editorial staff and in-house counsel both claim that they never negotiate those terms. They say so repeatedly; perhaps "incessantly" is a better characterization. </SARCASM> You are free to draw your own conclusion concerning which bit reflects less favorably upon the publishing industry… or its insurers.
4. Let's just say that Dan Brown's reputation after that trial appears in cutting-edge dictionaries under "Pyrrhic victory."

   343. The Claimants say I should treat [Dan Brown's] evidence with caution. That is too high in my opinion. He started confidently enough but ultimately his confidence was gradually eroded by Mr Rayner James QCs protracted and carefully measured cross examination. In that cross examination Mr Rayner James QC established that in reality Mr Brown knew very little about how the historical background was researched. He in my view simply accepted Blythe Brown's research material when incorporating it in to the writing of part two of DVC. I do not believe for one minute he was analytical of it or critical of it; he simply accepted it.

   Baigent v. Random House Group, Ltd., 2006 EWHC 719 (Ch) (PDF) (concerning the very same book).

Extinction

Cory Doctorow criticizes the copyright system almost constantly. His latest thoughts appear at Locus Online. The copyright system does have significant problems. For example, the term of copyright is too long (a flat fifty years is probably about right), the work-for-hire doctrine undermines the very concept of author's copyright, and so on. People can disagree about this sort of thing. People should disagree about this sort of thing, because that's the best way to find problems and fix them.

The real problem, though, comes when one leaps from "the copyright system has significant problems" to "we must abolish copyright." This is Olympic-caliber conclusion-jumping. To only slightly paraphrase Winston Churchill, copyright is the worst way to "encourage Progress in the useful Arts"—except for all the others. Consider the alternatives:

• Direct government support for artists leads to government censorship and constant fighting over who is an "artist." Just ask Boris Pasternak, or Dmitri Shostakovich, or Natalia Gorbanevskaya, why this is a bad thing.¹
• Nongovernment patronage systems just shift the identity of the censors. The work-for-hire system (particularly the US version) provides an unfortunate window into this system; so does the second half of the seventeenth century in Europe.
• Last, and probably least plausible, there is the utopian, Bellamyesque² system: Everybody who wants to create art has enough leisure time to do so, and has so much other economic support (and leisure time) that creating art does not result in starvation for the artists.

At least in human history, that's it. There might be another possibility out there, but I haven't seen it or heard of it.

The key point that Cory makes—and it is one that really attacks the economics of distribution of copyrighted works, not copyright itself—is that "Apple has figured out how to compete well enough by offering a better service and a better experience to realize a good business" in competition with "free" P2P networks.³ In that sense, he is absolutely right. Historically, the only way that companies have ever successfully fought "piracy" is to provide distinct added value at a very low premium over the market price of the pirated goods. Remember all of those Korean, Taiwanese, and Chinese knockoffs of designer clothing in the late 1980s? Several high-end brands (and their corporate parents) failed by not changing either their quality or their pricing policies. The parallel between the dreck put out by media conglomerates—in all media forms—and the pricing for that dreck is striking.

The true substance of what Cory is complaining about—with some justification—comes from the interaction of copyright with other parts of the legal-economic system. In no particular order, these include antitrust (and selective enforcement), distribution inefficiencies, cultural imperialism and arrogance,⁴ informational inequality in contracting, censorship by government and other power centers, economies of scale (and occasional diseconomies of scale), inertia from sunk costs, and securities reporting requirements.⁵ None of that, though, says that the copyright system is broken; it says only that it needs to adjust and evolve, not become extinct.

1. If you don't know who all three of these individuals are—and can't infer why I chose each of them as an example—you really don't understand enough about either government censorship or its costs to argue that this is an acceptable alternative for the entire system.
2. Cf. Edward Bellamy, Looking Backward (1888).
3. They're not truly costless; it's just that the costs are buried in other fees gladly paid by users.
4. Yes, I mean you, French Dictionary Police.
5. Set aside for the moment the systemic biases toward short-term results, "profit" at the expense of "asset growth," and presumption that the securities of X Corp. bear the same relationship to those of Y Inc. as do their respective financial statuses. The publishing industry operates on a semiannual basis: It pays its suppliers (authors) every six months (when it pays them at all), typically in February/March and August/September. Why, then, should the publishing industry be reporting meaningless quarterly results half the time?

Corroded Boilerplate

Professor Wayne Schiess teaches legal writing at the University of Texas School of Law. This morning, he commented on a serious legal problem: Boilerplate language that is not understood by the drafter. Unfortunately, publishing contracts present paradigmatics examples. In an unscientific survey¹ performed by your (un)faithful correspondent over the past five years, one hundred percent of lawyers for US-based publishers—whether in-house or outside counsel—did not understand the following language, which appeared in each of the contracts at issue with only minor and immaterial variations:

If a petition in bankruptcy shall be filed by or against the Publisher, or if it shall be adjudged insolvent by any court, or if a Trustee or a Receiver of any property of the Publisher shall be appointed in any suit or proceeding by or against the Publisher, or if the Publisher shall make an assignment for the benefit of creditors or shall take the benefit of any bankruptcy or insolvency Act, or if the Publisher shall liquidate its business for any cause whatsoever, this agreement shall terminate automatically without notice, and such termination shall be effective as of date of the filing of such petition, adjudication, appointment, assignment or declaration or commencement of reorganization or liquidation proceedings, and all rights granted hereunder shall thereupon revert to the Author. The Author shall have the right, upon such termination, to purchase at his option the plates, remaining copies, and sheets.

Leaving aside the unenforceability of this clause under 11 U.S.C. § 362—meaning that it provides the author a false sense of security founded upon deception—note the convoluted prose and obsolete vocabulary. With very rare exceptions, trade books are no longer printed from plates that have any meaningful value (or, for that matter, are even owned by the publisher, since most book publishers now outsource their printing!). Similarly, modern practice frowns on the publisher retaining unbound sheets, for rather simple reasons relating to taxes and the demise of the manufacturing clause. In 1978.

Bankruptcy isn't exactly unheard of in publishing; consider the messes involving Carol, iBooks, and Lingua Franca. What makes this worse is the potential that an ipso facto clause of this nature creates for truly snarled litigation in bankruptcy, especially if an author ever attempted to invoke the rights at issue (or the publisher tried to follow this clause). Under those circumstances, the language in the contract itself indicates a mutual intent to evade the requirements of the Bankruptcy Code and favor one creditor or class of creditors over another inconsistent with the Code's requirements. This has more than a little flavor of bankruptcy fraud—and at least enough to make the proceedings needlessly complicated.

And if the lawyers didn't understand it, what makes you think that the editors and nonlawyer "contract specialists" most involved in author-publisher contract negotiations did?

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1. Because data-gathering was in an adversarial (or, at least, potentially adversarial) context, the data is not reliable enough for a statistically reliable conclusion (n=19).

A Dangerous Array of Weaponry

This item of a couple of days ago in the Grauniad is worth reading for the first sentence alone… and for what that sentence implies about a variety of things.

Despite a previous history of extreme violence involving giant serpents, faceless demons, dragons, and enraged willow trees, the boy wizard was finally allowed on to the translatlantic flight, and has landed safely in Britain.

"Harry Potter Runs Airline Gauntlet" (15 Sep 2006).

On the one hand, this is a fairly amusing story. Middle-aged female Caucasian celebrity pulled over for bearing a potentially dangerous weapon? Next we're going to hear that she tried to smuggle a sealed Evian bottle onto the plane, too! Really, now—how long could it possibly have taken the security people to riffle through even a full ream of paper and find that it contained no box-cutters, bottles of lighter fluid, or anything else of that nature? And what was she going to do with her manuscript that could have been a threat onboard the aircraft—scatter the pages on the floor in the hopes that an attendant would slip?

More disturbingly, though—at least at the symbolic level—there's the uneasy treatment of a literary work as a weapon. Perhaps that isn't surprising during this administration (either Over Here or Over There). Neither Bush nor Blair seems able to tolerate active dissent, and their henchcreatures can't even tolerate mild disagreement. Even Nixon and Johnson weren't quite so virulently opposed to Vietnam war protesters, still less writers of children's books.

One of the things that makes this incident even more vaguely disquieting is the combination of ignorance in the security staff and the subtext of Rowling's works. On the one hand, it's hard to imagine a literate security guard not knowing who Rowling was when she went through security. Surely that would have been enough to focus one's attention on the potential security threat presented by the next person in line! On the other hand, though, one must remember that Rowling's works are pretty anti-dogma, and contain pretty blatant subtexts against birthrights, racism, and abuse of government power. So, perhaps, in that sense she was an appropriate target of security-force scrutiny. What that says about security, though, is better left unsaid. (Of course, the point of this entry has been to say it.)

General Grumbling

I've made a few minor updates in the sidebar, mostly for offsite links.

In the process, I've discovered one minor annoyance at Blogspot: One cannot limit the front page to x days of posts if one is using a non-US-civilian date format. Like I said, minor annoyance; I can live with it, as I'll be doing more than one post a day on only very rare occasions. (That one of those is coming up in a couple of weeks—First Monday—is beside the point.)

On to matters of (dubious) substance…

• The publishing pond in the blogosphere has erupted with comments about the so-called "Sobol Literary Enterprises." The [insert favorite expletive concerning inbreeding here] editorial staff at PW Online needlessly gave the thing credence—and, as usual, did so without doing any of the math. The best advice on this dubious attempt to force the publishing industry to rush forward into the twentieth century: Don't. "Miss Snark" and my colleagues at Writer Beware say why at length. The math is just a bit shorter:
  • Each entry costs $85.
  • Total prize money is $142,000.
  • Thus, the breakeven point on sunk costs is less than 1700 entries.
  • Based on the number of known victims of clearly fraudulent fee-charging agents in the last four years, there are at least 50,000 potential victims out there.

  The real problem is that the underlying assumption for the contest—that the current system of selecting works for publication is broken beyond repair—is in fact correct. This, however, is not a viable way to fix it, especially when the potential authors will be bearing the cost.

• The September 2006 Atlantic has an interesting article by James Fallows (unfortunately, available online only with a subscription). The biggest problem with Fallows' approach is that it is not broad enough in its statement of strategic principles. The unusually accurate summary on the front of the magazine reads:

  Al-qaeda's [sic] mistakes, and our successes, have sharply reduced the terrorist network's ability to harm the United States. Its threat now rests less on what it can do itself than on what it can trick, tempt, or goad us into doing. Its destiny is no longer in its own hands…

  (emphasis added; ellipses in original) I could accept this if one substituted "has always rested" for "now rests", and "has never been" for "is no longer." Historically, every successful insurgency/revolutionary movement found success only when the status quo essentially committed suicide through an oxymoronic combination of overreaction, complacency, and nonassimilation.¹ Historically, the lowest-cost means of defeating a terrorist movement in the mid- and long-term has been to remove the surface reasonability of the movement's motivation. One does not do so by turning the movement's propaganda about the status quo's evil, repressive nature into prophecy!

• Chief Justice Roberts has begun making the Supreme Court's proceedings more transparent. Starting with this term, oral argument transcripts will now be available to the public, free of charge, on the day of argument. I applaud this move toward openness, but I think it less important in substance than as symbol. Oral argument of a fully briefed appellate matter can be terribly misleading to the uninitiated; most of the time, one can only lose at oral argument, because the crux of the case (and, in particular, the analysis of precedent) is in the briefs. Oral argument in front of a jury is ordinarily much more enlightening… precisely because the advocate is not being peppered with technical questions from judges who have already read the briefs, and frame their questions (and expect to get answers) in shorthand. Hopefully, the pages with the oral argument transcripts will include embedded links to the petitions for certiorari and the parties' (and amici's) briefs.

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1. There have been a few—very few—instances in which a prototerrorist revolutionary movement was successfully suppressed by brutal militaristic action… in the short term, anyway. One obvious example is Elizabeth I's campaign to keep Catholic dissenters from taking away her throne; another, even darker example is the hundred-year-long campaign waged by the Okhrana against anti-Tsarist forces in Russia. These are notable precisely because they are exceptions… and they both set the stage for truly terrible long-term prices. Misuse of Walsingham's apparatus was one of the causes of the English Civil War, and the Okhrana's excesses laid the groundwork for Iosef Stalin.

Bad Reasoning

One of the real problems in policy analysis concerns the misuse of sweeping generalizations. Here's an example, from the ordinarily better-conceived conservative magazine Commentary:

Even though [the book's author] has scant interest in the issues that preoccupy the most perceptive of the critics—a politicized faculty, threats to freedom of expression, the absence or the actual suppression of a balanced exchange of ideas—when it comes to "how much students are learning," and "what is actually being accomplished in college classrooms," he too sees trouble, and plenty of it, in the beautiful groves of academe:

Many seniors graduate without being able to write well enough to satisfy their employers. Many cannot reason clearly or perform competently in analyzing complex, non-technical problems, even though faculties rank critical thinking as the primary goal of a college education. Few undergraduates receiving a degree are able to speak or read a foreign language. Most have never taken a course in quantitative reasoning or acquired the knowledge needed to be a reasonably informed citizen in a democracy. And those are only some of the problems.

It seems, in short, that our colleges are "underachieving" after all—and that even their supposedly happy clients know it. Fewer than half of recent graduates, according to [the book's] ever-ready statistics, think they have made significant progress in learning to write, and some think they have actually regressed. Employers confirm this self-assessment, complaining that the college graduates they hire are inarticulate. As for critical thinking, "The vast majority of graduating students are still naïve relativists who 'do not show the ability to defensibly critique their own judgments' in analyzing the kinds of unstructured problems commonly encountered in real life." In the area of foreign languages, fewer than 10 percent of seniors believe they have substantially improved their skills and fewer than 15 percent have progressed to advanced classes. Nor are the results any better in general education, the great battleground of the critics. According to one study, only about a third of seniors report gains in the understanding or the enjoyment of literature, art, music, or theater. [the book's author] goes so far as to quote Daniel Bell's judgment of the typical curriculum as "a vast smorgasbord" amounting to "an admission of intellectual defeat."

Donald Kagan, "As Goes Harvard…" (emphasis added).

This passage—which is representative of Professor Kagan's comments as a whole—itself represents many of the problems being "diagnosed" in American university education.¹ Note, first, that some of the blame being heaped on the university is not the university's fault:

• "Few undergraduates receiving a degree are able to speak or read a foreign language"—perhaps for some value of "few." This, however, is an indictment of earlier schooling; college is too late to begin learning a second language. In fact, it doesn't apply at all to the better schools, which require several years of foreign language study in high school as an admission requirement.
• "Many seniors graduate without being able to write well enough to satisfy their employers"—and it doesn't improve after three more years of graduate school, whether in law or in most PhD programs. This is a problem with all of American society (including the employers, who—on the basis of who gets promoted and who does not—don't value this skill themselves), not just the university.
• "According to one study, only about a third of seniors report gains in the understanding or the enjoyment of literature, art, music, or theater"—I'd love to see that study, and smack its authors around a little bit, as it treats a self-perception of students as definitively true. Perhaps this is just a consequence of learning enough to realize how much one doesn't know. It sure as hell was for me, and for many of my classmates.² Then, too, this is rather at odds with the purported emphasis on pure critical thinking, isn't it?

The most damning self-indictment, though, comes through by considering Professor Kagan's juxtaposition of an unveiled assault on "naïve relativists" (just think "activist judges") and his invocation of "absence of quantitative reasoning." That last is an area I find particularly amusing, because both Professor Kagan and Professor Bok (the author of the book Professor Kagan is discussing) rely on invalid, or at best dubious and reflexive, statistics in support of their arguments. Statistics such as "ten percent of ___" are valid only when they are drawn from a statistically congruent population. There is almost no population less congruent than that of "American college seniors"; the only one I can think of off-hand is "American employers". One cannot draw conclusions about an "average" when one is studying self-responses from a group of students who variously graduated from Hahvahd, Surfboard Tech, and the University of Southern North Dakota at Hoople. Neither can one lump the engineers, nurses, physical therapists, elementary educators, B-school grads, and "general studies" majors in with purportedly "elite" liberal arts students and then draw conclusions on the inadequacy of a liberal arts education.

Then there's the quantitative reasoning issue lurking underneath this reliance on survey statistics: How much did the questions influence or determine the answers? Oops. I guess that's some "naïve relativism"³ showing there: I do not accept the premise that there is a certain, preordained, measurable educational objective/outcome that properly informs the university experience of every graduate. Maybe, though, that's just a consequence of my own training in quantitative reasoning. Or, more likely, it's the several years I've spent wrestling materials put out by JDs and PhDs who don't learn quantitative reasoning in graduate school, either. On the evidence of his essay, that may well include Professor Kagan (and Professor Bok). It certainly includes whoever selected its headline.

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1. As an aside, perhaps the perceptions stated in the book in question are skewed by the stupidity of allowing—indeed, encouraging—faculty members to treat undergraduate education as a chore instead of as part of their job at some "elite" universities. The "elite" university I attended had the opposite attitude: There were no undergraduate classes entirely taught by graduate students. That Hahvahd can't say the same is not an indictment of Johns Hopkins, or Washington University, or other prominent "elite" universities… no matter what the article title implies.
2. Perhaps, too, this conclusion follows from having some classics debunked by actually reading, seeing, or hearing them. For example, much of the canon of "American Literature" simply does not hold up under close examination—and those who don't study literature seriously will nonetheless treat those works as "classics." In that way, I enjoy Melville, and Hawthorne, and James (Henry, not William), and the so-called "Lost Generation," less now than I did in high school—which would fit the profile of that question. Just as I am not in a position to criticize an educator's choice of what constitutes a "classic" in the field of education…
3. How "relativism" is "naïve" after the US experience in Vietnam—or, more broadly, everyone's experience with unconventional warfare—escapes the military officer in me.

Happy Birthday

… to Capt Kirk, Cmdr Spock, Lt Cmdr Scott, Lt Cmdr McCoy, and the crew of the Enterprise. The first broadcast of Star Trek was forty years ago today. It's an event that changed television drama forever. (If you add up all five series, Star Trek to date has had more episodes than Law and Order.) It has also had immense influence across other forms of entertainment—and I don't mean Bill Shatner's waistline. Had Star Trek not demonstrated the viability of the market, we probably wouldn't have had Star Wars (20% of the top 20 grossing films of all time, adjusted for inflation, and the only multifilm franchise with more than one entry in the top 20), extensive merchandising from TV shows… ok, it hasn't been an entirely positive, or even benign, influence, but it's still pretty significant.

I find it rather unsurprising that most of the major "respectable" sources online appear to be ignoring this event. Nothing at NYT, Variety, Ebert, Box Office Mojo, or IMDB. Maybe they're afraid their employees will all come to work wearing Vulcan ears or something.

And the Connection Is...

...not quite random. In fact, not random at all.

An article in the (Toronto) Globe and Mail notes that artists are getting perturbed by small-scale reproductions of their works in auction catalogs. At present, artists (and, in fact, all copyright holders) don't participate in post-first-sale profits (see § 109 of the US Copyright Act for our codified version). Leaving aside the obvious financial pain that causes, I suspect that what is irritating the artists is that their one-of-a-kind pieces are being copied… for purposes of advertising those very pieces for a sale from which the artist's benefit is, at best, extremely attenuated… presuming that post-first-sale auctions have a traceable positive effect on the first-sale prices for later pieces, which is entirely speculative. And here is the tricky part: Does it make a difference whether the original piece is two- or three-dimensional? Further, under US law do catalog representations implicate VARA?

Speaking of questionable sales tactics, though, it appears that James Frey and his publisher have settled a bunch of lawsuits over Frey's fictional "memoir." The headline is perhaps the most entertaining part of this NYT article: James Frey and His Publisher Settle Suit Over Lies. It names the author, who certainly had a prime role in the incident—but not "his publisher", Random House, which bears at least equal responsibility. The spin control from Frey's lawyer is pretty amusing, too ("We worked with Random House on whether to resolve these lawsuits and the desire to move on became a powerful incentive to resolve what are otherwise very weak cases"), but it's so expected that I find the headline more interesting. <SARCASM> Of course they're weak cases. That's why they weren't dismissed out of hand. And, too, that's why over $2 million is being allocated for the payout (and don't forget to pay your own lawyers, RH and Frey—they won't forget to ask!). </SARCASM>

The Big Tent Still Can't Hold the Camel

The GooglePrint program has been back in the news again. The University of California system has signed up to provide more works for scanning. In one sense, this is much more appropriate than the University of Michigan; after all, Google's campus is less than 100 miles from three University of California libraries. Perhaps this is my old logistics bias showing: Why go across country to set up complex hardware when virtually equivalent "targets" are local? On the other hand, the broader scope of the Cal agreement is itself disturbing. I am less disturbed by the patron definition than Alan Adler is, if only because for a state-supported school, the most sensible definition of "patrons" is the general population of that state. The real problem, as I see it, is in § of the contract (PDF), which reads:

As between Google and University and subject to the provisions of this Section 4, Google shall own all rights, title, and interest in and to the Google Digital Copy.

So, then, Google expects its own intellectual property to be respected for a program that—at least on the face of it—presumes that library ownership of a work cuts off the rights of the publisher and author?

But then, if you listen to some commentators who should know better, GooglePrint is going to undermine libraries, too. That comment starts to make more sense, though, when it gets toward the end; its discussion of the economic incentives in publishing is unusually nuanced for a general publication.

Invasion of the Book Snatchers

I'll get back to longer pieces before long. Trust me—I'm a lawyer. This is the closest that you're going to find for a while, as I jump from one tidbit to the next in the chain.

As a follow-up on my snarky comments earlier this week concerning celebrity marketing, consider the distinction between "content" and "brand" implied here:

What's certain is that the absurdly steep cost of some of this autumn's celebrity yarns will far exceed the probable revenues. As a result, plenty of genuine books by genuine writers will never achieve the precious "positional good" of a place on the list of a major publisher with marketing clout. But if you dare suggest that the book trade should seek out and support literary ability rather than chucking suitcases of extra cash at already pampered millionaires, an assortment of wealthy populists will get very hot under their smartly tailored collars and call you an "elitist".

Boyd Tonkin, "A Week in Books," The Independent (01 Sep. 2006).

Mr Tonkin's concern is perhaps a bit overstated—but only a bit. Part of the problem is the relationship between total sales and velocity of sales. Since long-term sales of books tend to rely upon making substantial up-front investments in stock—not to mention the inequities of the returns system—publishers need/want to get a decent return soon instead of a somewhat higher (but uncertain) return later. (Sorry, POD-persons, POD is not yet an economically viable substitute for liquid-ink printers, particularly for casebound books.) More to the point, there's the inability of bean counters to even see over that next-quarterly-report horizon. But that's for another time; it's not like the rest of the entertainment industry lacks similar problems!

Speaking of POD-persons (does the title of this post make any more sense now?), there's yet another glowing infomercial article on how POD—which is a printing technology, not a publishing model—may influence (but not determine) publishing models at IBD. As proof that the article's author knows only enough about publishing to drink the POD Kool-aid (ostentatiously omitting the trademark symbol), consider this "paragraph":

O'Reilly and others have turned a number of blogs into books — or what some call blooks — for their authors, who rely on their niche Internet followings to sell the volumes. One recent blook is Hackoff.com: A Historic Murder Mystery Set in the Internet Bubble and Rubble. It's a fictional novel that grew out of a blog written by Tom Evslin, a former tech executive, about the dot-com boom and bust.

Jennie L. Phipps, "Book Publishing Turns The Page, Thanks To Technology" (31 Aug. 2006) (typography corrected). "Fictional novel"? The real problem with this article is that it completely fails to acknowledge that there are actually two distinct factors driving the current publishing model: The specific and critical scalar economies of the printing process, and the distribution system. This article—like almost all POD-person soliloquys—conflates the two.

Speaking of the problems with the distributions systems in entertainment, consider the poor Beatles ("poor" having nothing to do with economic status for the nonce). They've filed suit claiming that—like virtually every significant figure in twentieth-century distributive entertainment—they've been hosed by faulty and/or fraudulent accounting by their distributors. I'm shocked—just shocked—to find dishonorable accounting practices in an industry now run by marketing dorks (instead of even the purportedly honorable editors/publishers who came up with the system). Pardon me… I have a potential client calling…

Much of the way back around the wheel, consider the technology involved in musical instrumentation, particularly those instruments commonly used in popular music. A sadly amusing and somewhat interesting article on electric guitars in the Telegraph illustrates some of the simultaneous ignorance and innovation concerning these sorts of things. Leaving aside the many non sequiturs in the article,¹ it never mentions that the real distinction between the electric guitar and its predecessors is a materials basis and nothing else. Not the body: The strings. (And anyone who says one can't "bend" a piano's notes isn't skilled enough to trust in the first place.) One might even argue that the reason we think of "guitar heroes" and not "keyboard heroes" parallels the reason we think of "infantry heroes" and not "tank heroes": In ordinary use, one can see the face of the infantryman/guitarist, but often not that of the pianist/tanker.

And finally for the moment, remember that it's not enough to have a great product: One must distribute that product. And sometimes competitors put inappropriate roadblocks in the way, knowingly/intentionally or otherwise. The irony that Comcast is also the least responsive of the major ISPs to complaints of copyright infringement—even worse than was my most visible opponent—doesn't make it into the article on spam filtering… probably because that's too big a leap to make unless you're looking for it, and know that the same individuals usually determine the responsiveness of both policies.

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1. The picture of Roger Waters, a bassist, illustrating an article on electric guitars that quotes David Gilmour extensively, would be amusing enough without knowing much about the history of Pink Floyd. Not only do Waters and the remainder of Pink Floyd have some rough patches between them, but Waters started out as the rhythm guitarist to Syd Barrett and was later "demoted" to bassist at about the time Gilmour joined the band.