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.
In no particular order, a few thoughts on events yesterday:
The James Bond wing of the Republican Party has a new enemy: S.P.E.C.T.E.R.. No doubt we'll be encouraged to think he's just as evil as Blofeld or any other Bond villain. I just want the Bond girl, myself; I'm not all that picky about which one.
The DoJ has demonstrated that it has actually read its own bloody files (and, perhaps, every single antitrust-law casebook and treatise on the market) by opening an antitrust inquiry into the proposed Google Book Search settlement. This is not exactly a tough call, given that ASCAP and BMI are still operating under a consent decree negotiated after years of litigation with the government over antitrust problems; that the government drove the Society of Authors' Representatives (the predecessor of the Association of Authors' Representatives) out of business over antitrust concerns; that the DoJ has an open file on Google itself; and that European authorities are even more interested. Even my dog figured this one out.
I'd say more about how the deafening silence on this issue in the proposed settlement papers implicates whether either class counsel or the named representatives are "adequate" under Fed. R. Civ. P. 23, but this isn't the right forum. I won't be remaining silent forever.
The determination dates in the Google Book Search settlement have been delayed by order of the court (Chin, J.) (Docket No. 89). The new critical dates are:
So I got a late start today. I'm still recovering from all the muscles I sprained on last Friday's item.
RIP J.G. Ballard, who never stopped writing speculative fiction even when commercial considerations demanded that he deny that he wrote speculative fiction. Or maybe he just didn't like the pointy ears... or idiot assumptions that all speculative fiction involves pointy ears?
Congratulations, Sir Cliff Richard: your inept pathetic warblings are now protected for seventy years, not fifty, under EU copyright. Should we call this the "Squeaky Mouse Copyright Extension Act", so that it parallels the US "Mickey Mouse Copyright Term Extension Act" that was put forth in Sonny Bono's name in 1998? It's probably going to just act like bamboo shoots under the Pirate Bay founders' fingernails.
Nicholas Clee comments on celebrity titles killing the book trade in the UK. On one tentacle, it is Clee, so one must take his pontificating with a ten-pound bag of salt. On another tentacle, he's right, for fundamental economic reasons. On yet another tentacle, it's not going to change behavior due to scaling effects... and that's predictable from basic macroeconomic principles. On a fourth tentacle, nobody is asking the real question: Why was the "celebrity book" adopted as a benchmark in the first place? And on a fifth tentacle, the fact that Nicholas Clee himself rose to prominence within what passes for publishing journalism by turning S&M dorks inside of publishing into quasicelebrities adds an interesting twist... or just indicates that he thinks we're all suckers.
As a sideways follow-on, some maroons are trying to blame Hollywood for Wall Street's ethics problems; their claim is that without Hollywood's depiction of Gordon Gekko, he wouldn't exist. Umm, right; "life imitates art"? Actually, there's a simultaneously more-complex and simpler explanation: Measuring success by short-term numbers that may, or may not, have any real significance... but, since they're numbers, they're easy to compare, and even easier to whinge about for archly political purposes (in, as Orwell suggests, the broadest possible meaning of "political").
UVa professor Mark Edmundson suggests giving up literary readings for reading the books in question. On one tentacle, this is a "well, duhhhh" suggestion: Of course one should look at the primary source materials in order to form an opinion! On another tentacle, though, it reflects a serious reasoning error; secondary sources should be viewed as a supplement, not a substitute, for the primary sources. Perhaps it's as much the tyranny of the three-credit-hour course as much as anything else, with contemporary student expectations of homework loads (which is to say "none"!) driving down the amount of reading that can be assigned. For example, I compared the expected reading load for the required Shakespeare class here at the U of I with the one I took mumblemumble years ago at Wash U and was shocked; not only did we read more plays and poems, but we also had some significant secondary reading in the syllabus... all for a three-credit class. And yes, as a matter of fact I did walk uphill to school both ways (there was a significant valley between my house and the school, 15m at the school end and 40m at the residence end).
Oh, dear. Oh, my. For the moment, we'll just start with a quotation from a new patent opinion.
The plaintiffs brought suit for patent infringement against the defendant, and prevailed in the district court, precipitating an appeal that, among other things, challenges the patent's validity. Dissatisfied with the amount of relief the court gave them, the plaintiffs cross-appeal; but on the view we take, the only issue we shall have to consider is whether the patented invention would have been "obvious" to persons
skilled in the relevant art, as that word is understood in patent law. 35 U.S.C. § 103(a).
The plaintiffs own a manufacturer, called Know Mind Enterprises, and the defendant, doing business under the name Topco Sales, is another manufacturer. Both firms produce what the parties call "sex aids" but are colloquially referred to as "sex toys." A more perspicuous term is "sexual devices," by analogy to “medical devices." The analogy lies in the fact that, like many medical devices (thermometers for example), what we are calling sexual devices are intended to be inserted into bodily orifices, albeit for a different purpose.
Ritchie v. Vast Resources, Inc., No. 08–1528, slip op. at 2–3 (Fed. Cir. 24 Apr 2009). Which leads to several questions:
What, precisely, is the relevant art?
Who, precisely, is "skilled" in that relevant art?
What would a bunch of elderly lawyers know about any of the above? Oh, wait; Posner wrote the opinion, sitting by designation...
I would have paid to see that oral argument. All puns intended.
I guess I just take my comedy and amusement where I can find it. Too bad the opinion wasn't released yesterday, which would have been literarily salubrious.
Just a short piece of miscellaneous drivel today, as I'm busy writing up papers on the Google Book Settlement (assisting counsel to several objectors) that are going to make me even more enemies in New York than I already have. The short version: Various silences in the proposed settlement demonstrate that both the proposed named plaintiffs and their counsel are inadequate representatives for the class, however it may end up being defined. After having served as class counsel in over sixty matters, I think I have some grasp of the "adequacy" standard for both the plaintiffs themselves and their counsel. <vbeg>
In any event, I came across a rather random and amusing bit of cultural cognitive dissonance this morning: Is Evanescence's "Good Enough" Amy Lee's homage to Spinal Tap's "Lick My Love Pump"? And if not, why not? (Note to fen: This is friendly teasing.) Go ahead and compare the two.
And I'm much too angry about the torture memos to say anything more than the following that won't melt your screen. Torture makes people talk; it doesn't make them give you timely, accurate information, especially if they don't have it to begin with. If, on the other hand, what you want to do is brainwash the subject — like the godless Commies did to Americans in Korea and Vietnam — or just punish someone who bears some physical resemblance to the "real enemy," go right ahead. Torture works just fine for that.
Happy Shakespeare's Birthday. Forsooth, therefore, I shall end this entry aright with appropriate comment upon the preceding.
"Bastard virtues"; that indeed know not their fathers, and therefore have no names.
It's Monday. I haven't had enough caffeine (and this is a surprise?). Thus, no guarantees on what went into the sausage grinder, let alone what came out. Maybe some of it was spoo.
Calling an entire nation "racist" at a summit on racism is virtually guaranteed to get the nations you need to join with to walk out. Of course, that's not surprising, is it? That speech was intended not for the conference, but for the clerics at home.
So, how is Google going to pay for the Google Book Search settlement? How about a £100 million tax avoidance scheme? Meanwhile, the Strange Bedfellows Department is recruiting a number of potential and actual objectors to the proposed settlement, including the Internet Archive, Professor Pamela Samuelson, and Cory Doctorow. Stay tuned as this gets even messier! I'll certainly be throwing a few mud pies of my own, in particular at the Authors' Guild's suitability as class representatives.
On the occasion of the fiftieth anniversary of its commercial publication (it's one of the few sort-of-true self-publishing success stories... and only sort-of-true because it was vastly changed when it went commercial), there's a mini-tempest brewing over whether Strunk & White's The Elements of Style is a good book. Some critics accurately criticize some of the grammatical analysis. Everyone is missing two salient points, though: That this little book (at least in the second edition; the third and later editions are a mess) is only a starting point, and that the alternatives that have been available have been much worse in most respects. One good example is the overpraised Zinsser book; the grammatical advice is, on the whole, not much (if any) better, and the examples are constrained by the author's (perceived, and incorrect) 300-word limit on fair use.
The Strunk & White Elements of Style — for all its faults — represented a change in pedagogical models as much as anything else. Writing instructors were no longer tied to an exhausting, and exhaustive, set of polemically chosen readings as source materials for their students. Instead, instructors could choose support readings appropriate to the needs and interests of their students — articles from Science for the biologists, from PMLA for the English majors, and from Orwell for everyone.
Then there's the price point. The primary problem with most "writing guides" is that they're too long, too ill-organized, and mostly too expensive. There's a lot less incentive to resell a $2.95 mass-market paperback at the end of the semester. Strunk & White isn't a perfect reference work; but the perfect is often the enemy of the good enough... as the Third and Fourth Editions of Strunk & White itself demonstrate by their very existence.
In the end, Strunk & White is a tool. Like any tool, it has its limitations. Unlike most of its competitors, however, it doesn't pretend to be any more than a starting point... and I, for one, would be reluctant to saddle a beginning woodworker with professional-grade chisels at the same time I expect him or her to make do with a hammer from the nearest discount hardware store and work with home-improvement-store lumber using a battered old carpenter's square as the only available measuring tool.
Before getting into the miscellany, a note on the Google Book Search settlement: There's a decision deadline coming up on 05 May 2009. Don't wait until the last moment to opt out or file an objection. And, although this is not legal advice for any particular situation, I am unable to discern any set of circumstances in which participating in the proposed settlement by doing nothing makes economic sense... and that's leaving aside the serious legal problems with the proposed settlement. Unfortunately, due to behind-the-scenes machinations and conflicts created by past representation, I can't go into much more detail (in a forum like this, anyway) on those legal issues until after the "deadline" passes.
On to the sausage platter:
Some thoughts on "wetbacks" in the Cabinet... with the caveat that one gets a lot wetter across the Pacific than across the Rio Grande. This is a nation of immigrants, and the sooner the bigots who proclaim otherwise will acknowledge that, as Mr Egan says, "from a Native American perspective, those Massachusetts Bay pilgrims were illegals," the better. Except, of course, that they'd claim that it wasn't illegal — it was just something that the Iroquois (et al.) had never considered. That, too, is revealing of something else: That history is written by the winners.
Overenthusiastic fanboys are involved in more than just piracy of bad emo: They're pirating your phone calls. This is a surprise, particularly after the USA Totalitarian Regime Activity Incitement To Obscure Reality Act, Pub. L. No. 107-56?
Here's an example of everything that is wrong with legal and professional publishing, starting with the identities of the parties and going rapidly downhill from there. The real problem is that this has some interesting implications for trade publications... interesting in the sense of "may you live in interesting times." Ask yourself whether, in this instance, professors from certain law schools get book contracts because they're what passes for celebrities, which is admittedly more than a little bit pathetic.
Yesterday, it was income taxes; today, it's sales taxes. I prefer the income taxes... especially since sales taxes are all too often imposed on transactions that shouldn't be taxed at all (like purchasing books).
Snakes on a plane. But these were cuddly ones — they just want to give everyone a hug.
Justice Holmes remarked that taxes are the price one pays for civilization. Given the last eight years in the White House,1 not to mention the 1980s, it's not ironic at all that the Heffalumps want to reduce taxes: They want (and achieved) less civilization.
This leads to another inquiry, though. It's really tough to object to "I need to keep more of the money I've earned and pay less taxes"... until one starts to consider the alternatives. The real problem is that the Heffalumps largely disbelieve in the economic concept of public goods, which include such silly things as roads, military expeditions to foreign nations, courts, and control of contagious diseases like tuberculosis. And, conversely, they refuse to acknowledge the free rider problem, such as Bernard Madoff. Leaving those problems aside, what is the realistic alternative to taxes, and in particular income taxes?
For those who think there's some real alternative, keep in mind that the "income tax" is a recent phenomenon, linked to increased diversity of capital ownership and the concept of labor economics. Eight hundred years ago in England, or for that matter in China, there was no income tax... primarily because the vast majority of the population had no income. Instead, the majority of the population lived as feudal tenants.2 If one has any conception of the veil of ignorance at all, this is simply not an acceptable alternative... unless, as the Right is, one is convinced that real ignorance is an adequate substitute.
The problem isn't with taxes per se; it is with "value for money." And that is not a structural problem, but an insoluble policy problem. The irony that the people who can most afford to devote their efforts to the policy debates while giving their (supposed) nineteen to the taxman are those who scream the loudest — and, conversely, get the most non-accountable benefit from public goods, and therefore are the free riders — points out that not all self-interest is very enlightened.
<SARCASM> Now, unofficially, the Half-Black House, or perhaps the Half-of-Three-Fifths-of-All-Others House. After all, the Right is fond of claiming that everthing said by Liberals is a euphemism intended to prevent communication, so we should call it like it is. Or look up "teabagger" before using it as a slogan... although that particular source is admittedly well outside the ability of the (dis)organized Right to consider. <SARCASM>
Yes, I know that the Chinese system was technically somewhat different, but economically it makes no difference.
As usual, my take on #amazonfail is orthogonal to normal considerations (in several senses of "normal"). In no particular order:
I seriously doubt that there is one, unified, conspiracy-theorist-satisfying explanation. Even if there is one, I seriously doubt that it will ever be aired in public to the satisfaction of conspiracy theorists everywhere.
To the first-time customer, it doesn't matter whether there was malice aforethought involved; he/she won't get an accurate search result. This really does two things: It points out the idiocy of reflexive, black-box "sales ranks" as the primary ordering algorithm for search results, and it points out that the customer is not always right.
Most importantly, though, there's a structural cause-and-effect relationship from the positive feedback loop. Ultimately, the problem is that Amazon dominates a certain aspect of book distribution — exacerbated by the holiday-weekend nonsense — to an extent that strongly implicates antitrust issues. This is a result of the overcorrection in antitrust doctrine imposed by the Reagan administration, which chose to eliminate false-positive accusations of monopolization... no matter how many false negatives that policy engendered. The simple fact is that book distribution is an oligopoly, and Amazon exercises actual and/or potential monopoly power (such as the power to unilaterally set payment terms).
Some of the antitrust conundrum comes from difficult problems of market definition; one reaches a drastically different result for every aspect of book distribution for "category trade fiction with at least 20% of sales through chain bookstores" than for "all casebound books published". More of the problem, though, comes from the application of economic theories tested only on initial-endpoint actors in relatively clean marketplaces to midpoint and terminal-endpoint actors in the very, very messy real world. In short, we're dealing with economic theories of antitrust with similar value to the Laffer Curve: They are aggregate-behavior models(PDF) of theoretical behavior that are essentially untested in the real world. More precisely, quasieconometric antitrust models implicitly discount the endowment effect and presume actual substitution — not just theoretical substitutability — of every purchase decision based upon the characteristics of fungible commodities. And there is nothing more endowed, or less like a commodity, than individual expression.
Martha Stewart has a new cookbook out, running half-a-kilopage. She — or, rather, her ghostwriter(s) — must be awfully verbose; her actual method is closer to "hire a bunch of recent graduates of hoity-toity 'culinary academies' and take credit for what they do... and abuse them mercilessly; that leaves more time for securities fraud, obstruction of justice, appearances on talk shows, and faux-country cow art" than to 500 pages of text and professional photographs.
Continuing the culinary theme, youngest remora believes that local drivers are a chunky paté of chicken livers and recycled teenagers, because they vary incredibly between overcautious and suicidal... sometimes in the same bite.
Moving on to another part of the platter — equally snarky, just different seasonings — Professor Leiter asks blawggers to give the forthcoming US Snooze rankings all the respect they deserve. For any prospective law students reading this blawg: The single most-important factor for law schools has exactly zero weight in the US Snooze rankings — the probability that students will emerge from those institutions with at least 90% of their ethics and humanity. There are two institutions traditionally in the top eight to ten US Snooze schools for which that is not only not a given, but it is positively difficult to arrange (even by emulating James Dean). You have been warned.
An agent responds to Agentfail without noting the real cause of the problem — "agented submissions only." That's called a negative externality, and leads to more consolidation in publishing. Meanwhile, a shaky grasp of math continues to plague the industry; 16%, even rounded, is closer to 1/6 than to 1/7, and USA Today's listings are nowhere near comprehensive enough to make such a sweeping claim for even trade publishing — and since the last quarter also included college winter term textbook purchases, which include a fair number of trade titles, I simply don't trust the reported numbers in the first place.
You legal scholars (and even those marginally interested in how scholarship does — and doesn't — work/eventually affect The Law itself) should carefully consider this piece on so-called "empirical legal scholarship" at PrawfsBlawg. I'll start out with the snarky observation that these are not empirical studies at all, but epidemiological... and not knowing that there is a difference, let alone what that difference is, is a serious failing at a scientific level.
Modern "Islamic fundamentalism" isn't conservative. Whether modern Christian (or, for that matter, Jewish) fundamentalism is conservative — that is, an attempt to return to previously held, time-tested values — is left as an exercise for the student... of history, of textual interpretation, and of government.
Here's a selection of cookbooks of a different kind: Not for gastronomes, but for thaumaturges. And there's a reason that I put this item immediately after the preceding one, but it requires actually reading and not just taking the word of someone else for what a written work says.
Professor Madison quite properly notes that "we shouldn’t forget what we’re really arguing about" when we're arguing about copyright "values," particularly those related to "originality" (which, despite the common root, is actually antithetical to "originalism"... but that's for another time). I would add that two insights from modern physics, and one from modern philosophy of language, demonstrate that the debate is really over the meaning of "glory." Consider Einstein's reference-frame metaphor, the actual (mathematically rigorous) Heisenberg dilemma, and the weak form of the Whorf hypothesis in trying to define "originality"; one will probably end up where Justice Stewart did in trying to define "obscene".
Why am I simultaneously depressed and exhilarated that this is from a f*cking comedy show? Which leads to an annoyance: The next time I walk into a bank and see the tellers and management all wearing little flag pins, while they allow the oversized US flag outside the building to look like a f*cking rag, I'm going to go home, pull on my BDUs, and return and rip a few new ventral orifices. Instead, the local American Legion and VFW are too busy protesting gay marriage proposals to pay attention to their own charters, which require them to educate the public on proper flag care.
It's a very important day today. Not just April Fool's; this is not an April Fool's entry. Instead, look at the date, numerically, in proper order:
01.04.09
One four nine. The squares of the first three integers. Perfect to fifteen decimal places. That's right: It's
Monolith Day
It is now time for Dawn of Man-strength coffee, then some very, very rare meat, right off the bone...
I think it unlikely that I need do anything else to prove I'm a nerd. Although since my computers all speak with HAL's voice on startup and shutdown, I think that would definitely confirm it.
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.
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, and I do not approve
aggregators and syndicators whose page design reflects only an intent to use the reference(s)
to this blawg without actually providing the content from this blawg.
Sausages?
Internet link sausages, as frequently appear here, are gathered from uninspected
meaty internet products and byproducts via processes you really, really don't want to observe; spiced with my own
secret, snarky, sarcastic blend; quite possibly extended with sawdust or other indigestibles; and stuffed
into your monitor (instead of either real or artificial casings). They're sort of like "link salad" or
"pot pourri" or "miscellaneous musings" (or, for that matter, "making law"), but far more disturbing.
I am not responsible for any changes to your lipid counts or blood pressure from consuming
these sausages... nor for your monitor if you insist on covering them with mash or sauce.
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.
![[self-portrait]](http://1.bp.blogspot.com/_aph-FWKPAtw/Sb7dbBwgg0I/AAAAAAAAAAU/xefH94KcXQA/S220/LawShark5204a.jpg)
Scrivener's Error
The James Bond wing of the Republican Party has a new enemy: S.P.E.C.T.E.R.. No doubt we'll be encouraged to think he's just as evil as Blofeld or any other Bond villain. I just want the Bond girl, myself; I'm not all that picky about which one.
It's Monday. I haven't had enough caffeine (and this is a surprise?). Thus, no guarantees on what went into the sausage grinder, let alone what came out. Maybe some of it was spoo.
Justice Holmes remarked that taxes are the price one pays for civilization. Given the last eight years in the White House,1 not to mention the 1980s, it's not ironic at all that the Heffalumps want to reduce taxes: They want (and achieved) less civilization.
at 1024x768.