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.
Buying the Buick
It's definitely still winter around here, influenza and all. Bleah. Herewith, therefore, a Bought the Buick special edition of the Monday Miscellany.
Joanne Rowling is finally speaking out on her lawsuit seeking to halt a fan-created "lexicon" on Harry Potter.
Rowling said she was especially irked that the site's owner and the lexicon's would-be publisher, RDR Books, continued to insist that her acceptance of free, fan-based Web sites justified the efforts. "I am deeply troubled by the portrayal of my efforts to protect and preserve the copyrights I have been granted in the Harry Potter books," she wrote in court papers filed Wednesday in a lawsuit she brought against the small Muskegon, Mich., publisher. She said she intends to publish her own definitive Harry Potter encyclopedia.
Larry Neumeister, "Rowling Bashes 'Harry Potter Lexicon'," Washington Post (28 Feb 2008) (fake paragraphing omitted for clarity). Of course, had Mr Neumeister read the rest of the papers — they're not sealed, and they're available online through PACER — he wouldn't have taken this statement out of context. As it is, it's not completely unfair; it's just that the papers reveal that this is really an unfair competition and trademark suit more than it is a copyright suit... as I've asserted from the beginning. This isn't the time or place for a long commentary, particularly not on a matter that is currently before the trial court.
Publisher's don't worry about just copyright lawsuits. They also worry about libel lawsuits, particularly in the UK (where the loser pays for everything), as noted in passing in this article in The Bookseller. Yes, that really does say £1200 (just shy of $2400) per hour. Other personal rights are at issue, too, particularly the so-called "personal rights." Germany presents an obvious problem, but we have the same problem over here. Or, as the case may be, authors over here have the same problem when dragged into court over there, in a practice called "libel tourism." The Second Circuit, following up a less-than-salutory certified question to the New York Court of Appeals, has ruled that a US-based author cannot get a declaratory judgment forbidding enforcement of a (putatively defective) foreign libel judgment. In this instance, the rule of decision is in civil procedure; that it involves libel is almost irrelevant (but only almost). What is interesting about this decision — whether from the Second Circuit or the New York Court of Appeals — is that it is, at a deep level, inconsistent with the very concept of jurisdiction in declaratory judgment actions... and at a fairly apparent level, inconsistent with other circuits' approaches, thus implying a reasonable (not large, but reasonable) chance that the Supreme Court will hear the matter on petition.
Of course, publishers also have to worry about selling their products. Nobody has figured out a fair and equitable system for doing so yet. Bluntly, if someone is going to get gored, it should be the distributors, who do not perform a substantive function in the supply chain; that's an argument for another time, though, and even then it won't happen (either the authors, or the bookstores, or both, will be donating blood and organs). It's hard enough trying to figure out contemporary commercial print-publishing contracts; throw in some digital curves through a non-Euclidean business space and we're all in for a good time. Not quite as good a time, perhaps, as the music industry, given Wal-Mart's advocacy of multitiered CD pricing. Schade.
Last, and probably least (given the recent relative success of Michael Clayton), there's a we-can't-figure-this-out article online at law.com asking why law-firm associates are leaving. Of course, there's a much simpler answer — but it's not one that the megafirms, and in particular insurance companies that end up paying the megafirms, want to consider. In law school, students are taught to see both sides of the question. The problem is that in firm practice, nobody wants to hear the other side of the question; partners and clients only want to hear how they can win, not whether the other side has a better position. You think that might be driving some associates out?
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.
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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.
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?)
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:
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.
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Scrivener's Error
at 1024x768.