link to: 12:16 [GMT-6]

• Doonesberry's focus a while back on soldiers' playlists on iPods now has some academic respectability (or at least enough for a Monday morning).
• There's now a proposal for rating arbitrators floating about. Yeah, like that's going to do the victims other side — largely consumers — any good. It's not that arbitration is an inherently bad concept; it's that the system we have is self-interested and corrupted.
• Gee, what a concept: sites for individual cases as marketing tools. Something I've been doing for, oh, close to a decade.
• Two pieces of "news" in the publishing industry demonstrate that publishing executives aren't even smart enough to understand a hypothetical Publishing for Dummies. First, PW cites a survey proclaiming that 72% of publishers are trying to develop new business models; one wonders what the other 28% are doing (compare to this item from the Frankfurt Book Fair). Then, immediately to the right of that item on today's PW front page, there's an announcement that Sony has signed up a vanity press for its e-book reader. Anyone for a little cognitive dissonance?
• It appears that my approach to learning — learn everything, all the time — remains rather unpopular... which isn't too surprising in the face of allegations that Joanne Rowling was denied a medal by a notoriously even-more-hostile-to-intellectuals-than-usual White House¹ because the Harry Potter books allegedly encourage witchcraft (announced during Banned Books Week). Of course, a true polymath rejects the very premise of this article lauding Dickens as timeless: Not only are Dickens's characters closely bound to their times and circumstances, but they're not even the best examples from Victorian literature.
• Too much love for IP — or not enough?

1. I still think that Republicans should be forced to refer to it as the "Half-Black House" due to both its current resident... and the fact that it was built with slave labor.

Labels: arts, copyright, culture, intellectual property, internet, law practice, miscellany, politics, publishing

link to: 12:28 [GMT-6]

The application of this principle to antitrust regulation — and, in particular, to monopsony regulation — since early in the Reagan administration is left as an exercise for the student. Or the merely cynical. Whether that has any lessons for the steadily consolidating consumer finance "industry", the entertainment and publishing industry, and/or American Needle shouldn't really require any additional though.

The real problem with/impetus for agency capture, though, comes from the legal profession's refusal to acknowledge its internal specializations. Bluntly, the only place the profession's structure provides to develop the expertise necessary to regulate an industry is through working within that industry. Going "career government" simply isn't an option anymore; hiring practices, political accountability and acceptability, and the huge disparity in workload, working conditions, and compensation make the true career regulator an exception... and drive the exceptional ones into the arms of the industry. This is even more of a problem with lawyers than with financiers because lawyers are required — by both common sense and by the supposed ethics rules — to look at and consider all aspects of a question before making/recommending action (or, too often, inaction). The lawyers in the trenches continue to do so; they're the ones who can't get promoted to being decisionmakers any more.

Finally, there's also agency self-interest to consider. I'm afraid that one of the best examples of this is the Copyright Office, which would be substantially smaller, less expensive, and less powerful if the US would join the rest of the world and abandon the registration requirement for copyright. Some argue that registration serves a useful purpose akin to title registration for motor vehicles and real property: It shows who the owner is. However, that comparison falls apart very quickly when one notes that changing owners for motor vehicles and real property requires an entry in the register... while doing so for copyrights does not. Too, the optional basis of registration under the US's idiosyncratic interpretation of the Berne Convention (which, essentially, denies that registration is a "formality" necessary to "enjoy" copyright because it isn't required... but that one can't get into court without it; it seems to me that the ability to get a court to enforce a copyright is a critical, implicit part of "enjoying" that copyright) also eliminates this as a cause. That, then, leaves the acquisition of works for the Library of Congress... which is what happens to deposits in the best case.

And why does all of this matter to authors? Why indeed; more to come, when some news I expect to break in the next ten days or so does, in fact, break.

1. See Anthony D. Taibi, Banking, Finance, and Community Economic Empowerment: Structural Economic Theory, Procedural Civil Rights, And Substantive Racial Justice, 107 Harv. L. Rev. 1463 (1994). Professor Taibi had already reached the results stated in the article on principle and from anecdotal evidence; I merely analyzed the data, blind, and confirmed his suspicions. I was pretty creative in the data sources I consulted, but in the end I think that actually reinforced the article's conclusions.

Labels: arts, copyright, intellectual property, jurisprudence, politics

link to: 18:02 [GMT-6]

The hearing has been converted to a status conference. Judge Chin's order states that he will hear only from the actual parties at the status conference, and not from objectors, class members, etc. I've already had one contact indicating that the reader — who is not a lawyer — thought this means the judge isn't going to hear from objectors at all.

A status conference allows the parties to keep the judge up to date on what is going on in a case. The parties. At this time, the parties are the Authors Guild, the named publishers, Google, and the University of Michigan.²² Technically, not even the five inadequate representatives proposed by the Authors Guild are parties at this time, because the class has not yet been certified. Thus, it is entirely proper for Judge Chin to refuse to hear from nonparties during a status conference; I only wish that his order had not assumed a certain level of procedural sophistication.

That said, IMNSHO, and all other things being equal — they aren't: given the pending nomination of Judge Chin to the Second Circuit, it makes a great deal of pragmatic sense to leave a clean procedural record for his successor, and that means interfering as little as possible with the parties at this time — I would have ordered the fairness hearing to proceed limited to the question of adequacy of representation. Adequate representation will be an issue no matter how the present parties modify their settlement agreement to meet certain third-party objections (in particular, the antitrust objections), and it seems to me that abstract judicial economy would best be served by dealing with Rule 23(b) issues now and deferring consideration of the merits to a later hearing.

22. Clarification: The U of M is not named in the caption, but all of the elements of a cause of action against the U of M for inducing infringement are stated in the body of the complaint, and the complaint itself identifies the U of M as a potential party.

Labels: copyright, intellectual property, internet, jurisprudence, law practice, publishing

link to: 12:50 [GMT-6]

Plaintiffs also are uncertain, at this stage, whether any additional form of notice, however limited, might be required. They cannot address that issue until the scope and effect of the amended settlement agreement on class members is determined.

Mem. in Support at 3. As Homer Simpson might say, "Doh!"

I see this as a strategic attempt to keep other parties from horning in on the action. Many of the objections raised have concerned inadequate representation by the named plaintiffs — a far higher proportion than normal, and far more searching and detailed in scope. As David Niven might have said, were this the Academy Awards, "I wouldn't expose my shortcomings in public." Nonetheless, these children don't want to share with the others... so they're going to try and short-circuit the process.

If I were a particularly mean and nasty shark, already admitted in the Southern District of New York, with a particularly bloodthirsty client who provided better/more representation than the current named plaintiffs, I might file a motion that asked the judge to either hold the hearing as scheduled, limited to the adequacy of representation issue, or to reject the settlement and require appointment of new class representatives. However, I'm missing one of those qualifications... and it's not the "mean and nasty shark" one.

Any relationship of this post to the following cartoon is purely intended.

Labels: copyright, intellectual property, law practice, publishing

link to: 10:24 [GMT-6]

• Congratulations to the 2009 MacArthur Foundation Fellows — the recipients of the "genius grants." If there's a theme this year, it seems to be "what the eyes reveal": six of the grantees work in the visual arts. And a lawyer who deals with mental health issues... too bad she's at the Source of All That Is Evil in Los Angeles, but I suppose it's a start.
• An article in The Chronicle of Higher Education decries the rural brain-drain... as if that's a bad thing. Being stuck here in East Central Redneckistan, it's disturbing and astounding that ideas travel more slowly outside of urban Chambanana than do skateboards; and that is not a good thing, and explains more than perhaps it should about "red states" and "flyover country": Whether it's cause, effect, or somewhere in-between, small-town America's hostility to ideas and those who have ideas creates problems both personal and wider. Thus, calling it a "brain drain" implies that there are only outside forces at work, whereas reality indicates that there's at least as much push as there is pull.
• Such as creationism, which Professor Richard Dawkins is doing his best to combat. When even the Telegraph is giving a positive review to a book that brutally and effectively attacks religious doctrine...
• Britain's new Supreme Court prepares to open a "new age of openness and judicial accessibility" with secret hearings. Yeah, it's a bit ironic, but "openness and judicial accessibility" are relative... if this had involved the Law Lords, or the older House of Lords, system, we wouldn't even know about the hearings.

   To celebrate today as the first day of fall, here's Mostly Autumn. Any inference one might make concerning the relationship between this selection and the middle two sausages on the platter above is probably related to the intended implication.

Labels: arts, culture, jurisprudence, miscellany, politics

link to: 08:50 [GMT-6]

• Espresso signs up with Google to make two million "public domain" works available for cheap printing. "Public domain," that is, as Google defines the term. Hmm. Isn't there some ongoing litigation concerning that very subject? And how does the author get paid for the rights in question for books that aren't actually in the "public domain"... or, as a nonhypothetical example, prevent the reprinting of a book that was shut down by a court judgment? Would an author's failure to file suit against Google and Espresso for making the book available constitute contempt of court, if the judgment or settlement (which is not affected by copyright term) required permanent withdrawal?
• Your Monday-morning counterfactual appears in World Affairs Journal, where Ann Marlowe begins by asserting that the American officer corps knew more about counterinsurgency during Vietnam (has she ever actually talked to anyone who was on active duty then about it?) and goes downhill from there. The questions are worth asking; the assertion that we need to know more, particularly in the officer corps, is correct; but process matters, particularly in military-political affairs, and a process based upon a polemical, predetermined view of reality that is incongruent with reality is also going to be rather incongruent with reality. The bottom line is simple: Counterinsurgency (to use the accepted name for a horrifically complex intersection of unrelated problems) has a military component... but the military component isn't even the most important one, let alone a determinative one as Marlowe implies.
• Without ever mentioning the beautifully conceived and executed parody linked here (NSFW for language), the LAT perceives Ken Burns backlash in the face of a forthcoming new PBS series.
• From the department of unintended consequences, swine flu fears potentially cause plague... since one of the animals most likely to take over that ecological niche is — you guessed it — rattus rattus, which isn't halal either.
• The Patriot Act is up for renewal. I still say it should have been called the TRAITOR Act (Totalitarian Regime Activity Incitement To Obscure Reality); the whole point of the rule of law is that it concedes that government is imperfect, and can't please everyone.
• Meanwhile, without even going that far, the government continues to exclude visitors because their views make the government uncomfortable or cause diplomatic problems with touchy foreign regimes (like the UK, which continues to have conniption fits whenever anyone who could even spell "IRA" gets invited to give a speech at an academic conference). Maybe this sort of thing relates to the purported downturn in "cultural studies" scholarship.
• Thank you, Captain America: Jack Kirby's heirs file copyright claims against Marvel under 17 U.S.C. § 304(c), seeking to "terminate" licenses granted to Marvel. This is an excellent example of the flaws of the work-for-hire doctrine (unique to US copyright law), Marvel's history of poor record-keeping... and the problems created by bankruptcy counsel (today's Marvel is the result of complex proceedings a decade ago) who don't understand copyright law.
• Revisionist book titles — remember, as the publishing industry will tell you incessantly, the titles (ordinarily) belong to and/or are determined by the publisher (except series titles, even if the PTO hasn't figured that out yet).
• A leading expert on antitrust law criticizes the GBS settlement, but doesn't go nearly far enough. I'm afraid that Professor Picker has fallen into the Chicago School trap (which shouldn't surprise anyone, as he's on faculty at — you guessed it — the University of Chicago) and is considering only the purchaser-side antitrust problems — that is, neoclassical monopoly theory. Seller-side problems (monopsony) get no attention, at least in that posting, and neither does the economic conflict problem created when one actor in a chain acts as a monopsonist to some parties and oligopolist to others for the same class of goods or services.

   Don't worry, Doctor. Some day you'll be right. Of course, that will mean that the commercial content providers have found a different (and no doubt more insidious, annoying, and worthy of a supervillain's attention) way to make us pay. Other, that is, than through the relentless destruction of our good taste and minds through the very content in question...

Labels: arts, civil rights, copyright, culture, intellectual property, internet, mass media, military, miscellany, politics, publishing

link to: 10:43 [GMT-6]

The Settlement (in essay form)
The Lawsuit (in essay form)

The United States has filed a brief opposing the GBS settlement (PDF) that doesn't go nearly far enough... but it is probably sufficient to cause Judge Chin to reject the settlement as it is written. The most interesting thing about the objection is the silent spaces. It does not discuss copyright law or theory anywhere... and, in particular, does not discuss any of the implications of § 411's registration requirement as jurisdictional (the law in the Second Circuit, although IMNSHO it's wrong) and how the Supreme Court's opinion in Muchnick (PDF) (due in the next nine months or so) will affect that. Further, it does not discuss the mechanistic conflict between an opt-out class and the fundamental inability to opt out of copyright.

Somewhat more disturbingly — but not too surprisingly — the opposition does not extend its discussion of the adequacy of representation to intraclass conflicts in treatment of nonorphan works. This is an extremely technical, fact-intensive inquiry that is not really within the proper scope of inquiry for the United States in this matter. Similarly, the opposition brief does not discuss the interplay between antitrust law and the adequacy of representation issues... nor does it mention the elephant in the room, although that's not too surprising on a factual level; the US Attorney for the Southern District of New York probably doesn't care a whole lot about preliminary injunctions from a decade ago that have no criminal-law implications.

This is significant food for thought.

Labels: copyright, culture, intellectual property, jurisprudence, publishing

link to: 12:20 [GMT-6]

The Settlement (in essay form)
The Lawsuit (in essay form)

In an order issued yesterday, Judge Chin has established some parameters for the fairness hearing in the Google Book Search settlement brouhaha. In the order that y'all should care about:

• The hearing will go forward on 07 October 2009 at 10am, as previously scheduled. {Doc. 716 ¶ 2}
• Anyone who filed a timely objection must separately request the opportunity to speak, via e-mail to googlebookcase@nysd.uscourts.gov, to be received by close of business on 21 September 2009. The request must state the name(s) of the individual(s) to speak (not just the organization to be represented, although this is not entirely clear from the order) and state the interest in the matter (and should refer to the docket number of the objection/letter in support/amicus brief). The court plans to notify those selected to speak by 25 September. {Doc. 716 ¶ 3}
• The parties proposing the settlement must submit written responses to the objections and amicus briefs by 02 October. However, no "reply" has been allowed for; that means that any misunderstanding, distortion, or misstatement of what an objector said can be dealt with only at the fairness hearing itself. {Doc. 716 ¶ 1}
• All written submissions will be considered by the court, even from those persons and organizations not selected to speak at the fairness hearing. Depending upon the court's process, it may limit the time afforded to individual parties to speak... and, although it is not specifically stated in the order, it may not give the same amount of time to each speaker. {Doc. 716 ¶ 3}

Reading the tea leaves a little bit, I think Judge Chin underestimated the passion that would pour forth regarding the proposed settlement. His order specifically does not provide for a presentation of opt-out statistics or anything else relating to those who opted out... and that's a bad sign for the proponents of the settlement, as that more-often-than-not-but-no-guarantees indicates that the judge is contemplating imposing another opt-out period for a substantially altered settlement. (Usually, the fairness hearing for an opposed class settlement will specifically discuss opt outs as part of the risk of the settlement not adequately covering the class.)

Further down in the dregs of this particular teacup, things remain murky indeed. That is only all too fitting with this entire litigation, so I think we should be unsurprised. Were I Judge Chin, but not prepared to reject the settlement in toto, I would be making every effort to ensure that whoever gets stuck with this monstrosity after I (pretending to be Judge Chin) go through the confirmation process for elevation to the U.S. Court of Appeals for the Second Circuit has as clean a procedural posture as possible. The 16 September order is entirely consistent with that; by giving away as little as possible of the judge's thought process, it makes things that much easier for another judge to take over later.

Labels: copyright, culture, intellectual property, jurisprudence, law practice, publishing

link to: 12:25 [GMT-6]

• As if anyone needed further proof that mechanisms used to perpetuate upper-class privilege are even more dangerous in the hands of the nouveau bourgeosie, British libel law is being asserted against a rhetorical flight of fancy criticising extreme claims for chiropractic care — and it's harming science journalism. None of this is news to me, but it is news to many who haven't been paying attention. This is actually less about Simon Singh than about Rachel Ehrenfeld... but the article never makes that connection.

  Combine this with some of the side effects of the UK's Official Secrets Act, and one has greater respect for the foresight of the Founders in making the First Amendment as broadly worded as it is. Even our libel system is far from perfect, but that is at least as much a problem with courts being unwilling/unable to require specific acts and instead substitute money judgments for "damages." (Query: Now that the subject of Rachel Ehrenfeld's "libelous" book is dead, can his estate continue to pursue damages against her and her publisher... since one can't libel the dead?)

  Despite the First Amendment, our own intelligence agencies are far from blameless. Some of this, naturally, comes from the cynical (but not entirely unfounded) idea that we'd better do it to our own people before the Enemy does it. Some of this, naturally, comes from the inherent conflict between the blissful ignorance of the general population and the only-perfection-is-good-enough world of government skullduggery and "ungentlemanly activities." Most of the impetus to actually do something, though, can be traced back to the same motivations that underly the UK's libel system: Maintaining existing power structures, and most particularly the individuals currently in power. And if this tortured loop doesn't give you intellectual indigestion, just keep reading...

• ... probably past this short item, which pitted fungus against Old World craftsmanship — and the fungus won.
• Scalzi pwns entitled wannabe writers; so does the incomparable Duke of Los Angeles, Harlan Ellison (or, at least, he bloody well should be the Duke of Los Angeles, and the city would be better for it). OK, this one isn't intellectually indigestible — rather the opposite, as intellectual honesty is largely missing from the whole wannabe writer ethos. But putting a digestible sausage on this platter might just encourage you to read the others, which more than makes up for it.
• On the piracy front, we've got both historical questions on the economic model of piracy (which politely ignore the class-warfare issues raised by who became nautical pirates... and, for that matter, who becomes an IP pirate today) and immediate piracy of Dan Brown's latest dreck. Arrrrrrgh! Meanwhile, in a related development that will actually drive more piracy down the road, UK children's publishers are cutting advances and acquisitions. Of course, some of this piracy will be by vanity presses... such as those run/enabled by Robert Fletcher, who was recently sued by the Florida Attorney General for fraud. Just remember that a man with a briefcase (or scanner) can steal more money (certainly per capita!) than any crew of a sailing ship!

Labels: arts, civil rights, copyright, culture, intellectual property, internet, miscellany, politics

link to: 23:52 [GMT-6]

In this day of "commuter communities", where more than a few people live in district A, send their children to school in district B, work in district C, and do their routine shopping in district D, does it make any sense to pretend that only district A reflects their representative and political needs? In particular, the phenomenon of "enterprise zones" creates quite a bit of tension between C/D and A — and it's entirely needless, because the assumption that one's political interests are based on where one lays one's head at night (and, even then, only in terms of "legal residence") is tied to eighteenth-century transportation, business, and communication models. In case the news hasn't reached your community yet, this is no longer a preindustrial agrarian society in which 90+% of the population is born, lives, works, and dies within a forty-kilometer radius. It hasn't reached East Central Redneckistan yet, as the County Clerk's latest intolerant rant demonstrates.

Consider, for a moment, Chicago congressional districts, and especially the First, Fourth, Fifth, and Seventh districts. (It's not much, if any, better elsewhere, like Manhattan Island with its many districts that cross waterways). The key point is this: Substantial parts of those districts in particular are downtown business zones with few residents. So, then, does that mean that Kirkland & Ellis; Jenner & Block; the Chicago Board Options Exchange; et cetera, et cetera, et cetera, are represented there? Highly unlikely: Instead, most of the workers (and certainly the highest-paid ones) live elsewhere, are counted elsewhere... and end up with their interests, at least at the national level, being represented by people who do not represent their lives. The corporations themselves may not vote, but they've got a helluva lot of influence (Justice Sotomayór's first oral argument on the Court concerned exactly that topic last week); so, are they perhaps being counted twice, in that a Congresscreature from the district in which a major defense contractor is headquartered fights for that corporation's interests, even if the workers come from outside the district to the headquarters every day and have their own representatives?

If we insist on dividing districts geographically, shouldn't we instead be allowing each individual to choose which element matters most to him/her as a member of the body politic? Even so, does geographic districting continue to make sense (consider the "I've Been Moved" meaning of "IBM" in the 1960s and 1970s for a moment...)?

You may have noticed that this entry doesn't have a whole lot of answers in it. This is at least in part because the questions are very, very hard, and I don't have answers... if only because on top of "What would an ideal system look like?", we have to ask "How do we get from the status quo to/toward that ideal system without bloodshed?" It is also because, as I tried to indicate early on, I am not at all sure we're asking the right questions.

Labels: civil rights, jurisprudence, politics

link to: 12:02 [GMT-6]

• Sarah Weinstein muses on the 17-book deal just signed by James Patterson with Hachette... all for publication in the next two years' worth of production. As I've remarked before, this raises interesting issues of what it takes to be a coauthor — in the copyright sense, in the trademark sense, in the consumer-protection sense — and questions a great deal about publishing and entertainment industry's concepts of "branding." More to the point here, it also raises substantial questions about the propriety of some of Hachette's negotiation tactics and objectives for contracts with author/brands less prominent than Patterson. On another tentacle, consider whether bestselling authors really are "branded like a cow" (and whether that might be a good thing to have happen to, say, the initial meat-donor to this sausage... or to a cookbook).

  And meanwhile, The Independent demonstrates its inability to let facts or alternative views get in the way of a good ideological predisposition by whingeing about "unjustified" discounting of bestsellers, without reflecting on the substitution conundrum in entertainment and intellectual property: Fungibility can be measured only post hoc and with reference to actual, not theoretical, price points and availability.

• Industry rumors indicate that Amazon may "require" participation in Search Inside the Book — yet another one of those "kewl ideas" that falls apart when one looks at it. Leaving aside whether Amazon has the right — under the Copyright Act, or indeed any of a variety of other provisions... such as the Sherman and Clayton Acts — to demand the creation of derivative works as a condition of carrying those works, this is essentially a demand to enable e-piracy of texts. I suspect that it is more an internal effort to force publishers to take steps that will make it easier to force works onto the Kindle than it is an endorsement of SITB itself; unfortunately, that runs into the same problems, only more so.

  This is less a problem for new contracts going forward — since publishers have, in general, committed to a nonnegotiable "we will own the e-book rights" position — than for older contracts. That doesn't just mean older books; as the preceding sausage, and the dubious history of publishing, demonstrate, there's a not-insignificant delay between the contract for a trade book and its availability for public purchase. And so, we're going to end up with the same problem as in the GBS settlement: Distributors presuming that publishers have rights that the publishers don't have, and using strictly economic forces to make it impossible for authors to enforce their rights.

  Or perhaps this vision of the future is more a prediction than just fiction.

• Speaking of the Kindle, a piece at Slate asserts that the age of the single-use device is waning. I certainly hope so; the problem is that it may leave us with camels in our pockets ("horses designed by committee"). Consider, for example, the cell phone. If I want to replace my four-year-old phone, I will have no choice but to get one that sacrifices what matters to me (long battery life, clear communications) for power- (and money-) hogging features like built-in wireless 'net connectivity (that cannot be turned off), pathetic cameras, a music system that ties me to a particular vendor, etc. The problem isn't multifunction devices per se; it's the choice of what function belongs with what from the user's perspective (not the marketing dork's perspective that "we can sell this to suckers our customer base").
• Just because it's a fascinating reflection of problems of contemporary government — that ultimate "nonprofit" (except, of course, if you're a politician), here's a piece on the perils for nonprofits of ignorning infrastructure. Please note that, although not intentionally an attack on advocacy organizations that aren't, it certainly functions that way.

Labels: culture, miscellany, politics, publishing

link to: 12:19 [GMT-6]

The Settlement (in essay form)
The Lawsuit (in essay form)

Before getting into the substantive problems with the Google Books Search settlement, here are a few context updates:

• In an admirable attempt to make public documents truly public — that is, not behind the required-by-Congress ID-wall/paywall of the PACER system¹⁷ — one can find almost all of the filed documents in the lead case at The Public Index. It's too bad it's incomplete, but that's probably more due to the slow pace of scanning materials at the court than anything else.
• The Register of Copyright has, umm, registered strong disagreement with the proposed settlement:

  [A]llowing Google to continue to scan millions of books into the future, on a rolling schedule with no deadline, is tantamount to creating a private compulsory license through the judiciary. This is not to say that a compulsory license or collective license for book digitization projects may or may not be an interesting idea. Rather, our point is that such decisions are the domain of Congress and must be weighed openly and deliberately, and with a clear sense of both the beneficiaries and the public objective.

  [C]ertain provisions of the proposed settlement dramatically compromise the legal rights of authors, publishers and other persons who own out-of-print books. Under copyright law, out-of-print works enjoy the same legal protection as in-print works. To allow a commercial entity to sell such works without consent is an end-run around copyright law as we know it. Moreover, the settlement would inappropriately interfere with the on-going efforts of Congress to enact orphan works legislation in a manner that takes into account the concerns of all stakeholders as well as the United States' international obligations.

  [F]oreign rights holders and foreign governments have raised concerns about the potential impact of the proposed settlement on their exclusive rights and national, digitization projects. The settlement, in its present form, presents a possibility that the United States will be subjected to diplomatic stress.

  Statement of Marybeth Peters, Register of Copyright (House Jud. Comm. 10 Sep 2009) (footnote omitted).

• The fairness hearing is still scheduled before the Hon. Dennis Chin on 07 October 2009.

That noted, it's time to move back to the question of "adequacy of representation." Thus far, out of professional courtesy, I have focused on the inadequate representation offered by the named plaintiffs. Recent events — particularly those after the extension of the opt-out date — have tipped the balance against continued professional courtesy.

Adequate representation, as required by Fed. R. Civ. P. 23 (not to mention basic concepts of due process¹⁸), clearly includes the question of whether the proposed representative plaintiffs provide adequate representation of the class. This does not, contrary to what many defense counsel continue to assert despite clear Supreme Court precedent to the contrary,¹⁹ require that class representatives have extensive technical knowledge of the complaint, the defenses, or anything else; it requires only that the class representative be capable of protecting the interests of the absent members, primarily through the ability to make decisions. That, however, is no excuse for the Authors' Guild's prominent position in this litigation. Although the Authors' Guild's name remains in the caption, as a procedural matter it should not: The AG is not a named representative. Similarly, the Executive Director of the AG is not a named representative. Neither is the AG the counsel to the class. Thus, the AG should not be making public advocacy statements concerning the merits of this specific piece of litigation... and certainly should not be doing so "on behalf of" either the named plaintiffs or the absent class members.²⁰

The AG's behavior is troubling enough; plaintiffs' counsel's conduct has been downright disturbing. Without specifically questioning counsel's professional judgment in entering into the settlement in the first place — I wasn't in the room negotiating, so I do not know what the negotiating posture, the details of resources committed to litigation, or any of a myriad of other factual circumstances behind whatever advice offered to the actual, decisionmaking client included — the post-settlement procedures have indicated not just disdain for the rights of absent class members, but questionable professional advice, conduct, and competence. A nonexhaustive list of problems arising strictly from the administration of the settlement includes, in no particular order:

• Failure to advertise in periodicals or on websites aimed at writers and/or their successors in interest; instead, counsel has relied upon general media coverage. This might be cheaper; it sure as hell isn't reaching everyone it is required to. Of course, this is merely a subset of the fundamental problem with adequate notice to absent class members — which is counsel's job — that underpins the entire settlement structure.
• Failure by counsel to ensure that proposed class representatives actually represent the interests of absent class members. My initial discussion previously is, perhaps, overly technical; suffice it to say that nobody is representing the authors of orphan works... almost by definition.
• Failure by counsel to ensure that the web-based opt-out form provides anything close to an adequate record of opting out to the author. Merely printing the webpage doesn't work; and the "message" received back upon opting out doesn't even acknowledge the time, date, or name of the person(s) opting out, let alone the scope of claims, the pseudonyms used, or anything else!
• Failure by counsel to ensure that the web-based claim form provides anything close to an adequate record of the claims made to the author. This is, perhaps, even more important than the problems described for the opt-out page, because it concerns actual entitlement to money from the settlement.
• Failure to adequately police the list of materials potential subject to the settlement, which continues to grow long after the purported 09 January 2009 "cutoff" date.
• Lack of apparent experience as class plaintiff's counsel. As a former plaintiff's class-action counsel myself (involved in many, many settlements), one of the elements of the submission package was always an experience summary of each lawyer involved in the settlement, on both sides, and an experience summary for any outside administrator hired for the settlement. These were not full resumés, but they certainly identified the individuals to help determine representativeness and ability to assist the actual parties in resolving their disputes. Either I've managed to miss a tiny part of the extensive settlement papers, or nothing of that nature was submitted at all — and I've reviewed the papers several times looking for that material.
• Failure to counsel or advise, or (in the worst case) control, public misstatements of fact and law by the putative client (who is not the class plaintiff). Bluntly, the AG — particularly in response to public statements made by potential organizational objectors like the William Morris Agency²¹ — has continuously made public misstatements of fact and of law regarding both the foundation for, and provisions and implications of, the proposed settlement. Part of class counsel's job is to prevent such misstatements, or at minimum to ensure their correction in a timely fashion. And, although some of those misstatements might — in theory, by a particularly noninquisitive observer — be characterized as "mere disagreements," others are not: They are made from inexcusable ignorance... or worse.
• Failure to acknowledge Rosetta Books and the inherent, unresolvable conflicts between class members, both between the "author subclass" and the "publisher subclass" and within each subclass. It's not that the papers come to a different conclusion than I would, which would be bad enough considering that one member of the publisher subclass is still bound by the result of its settlement in Rosetta Books; it's the complete silence on the issue. That reflects not just incompetence, but improper motive.

Judge Chin is entitled to reject the proposed settlement on this ground alone, should the record actually before him support it. I fully recognize that there's a huge difference between "what I know" and "what Judge Chin has in front of him," and that Judge Chin must confine his grounds for decision to the record. I strongly suspect that there's enough in the record, though, to reject the proposed settlement on "inadequate representation" grounds just for these reasons... let alone the other defects, both substantive and procedural, that one can find without digging very deeply.

17. Don't blame the courts for this one: The enabling legislation requires both. Although I think PACER is one of the great bargains in American "cost-recovery" systems, it's still a minor annoyance. Congress should, instead, simply give the courts the money necessary to run PACER as a grant — in governmental terms, it would be chicken feed — and, more importantly, eliminate the sign-in-and-register requirement, which has some disturbing privacy implications.
18. No, I'm not going to put a typical legal-writing-style string citation to the two dozen or so leading opinions on the due process implications of "representation" here, especially since those relating to the professional aspects are even more couched in legalese and codewords than is typical for due process questions (and that's a pretty stiff standard). Instead, I'll just point to the reflexively ironic Hansberry v. Lee, 311 U.S. 32 (1940), which involved the author of A Raisin in the Sun and rejects the bindingness of litigation results reached without adequate representation. As an exercise for the student, consider the potential distinction in rights offered by the Google Book Search settlement based solely upon whether A Raisin in the Sun is, itself, in or out of print on the critical date.
19. Surowitz v. Hilton Hotels Corp., 383 U.S. 363 (1966) (a class representative is still adequate if he or she relies upon advice of counsel for technical matters related to the complaint).
20. See, e.g., Brown v. Board of Education of Topeka (I), 347 U.S. 483 (1954) — a class action in which the NAACP refrained from the public-comment tactics engaged in by the AG in this matter.
21. Disclosure of non-conflict: I am not a fan of the William Morris Agency, but that is on personal judgment grounds related to other aspects of the agency's business. I have no conflicts with the agency, and to my knowledge there is no "former client" issue going either direction, nor even an adverse-parties issue.

Labels: copyright, intellectual property, internet, jurisprudence, law practice, publishing

link to: 13:57 [GMT-6]

• Fanboys everywhere had mixed news yesterday. On the one hand, the Tolkein estate settled its long-running battle with Warner over money from the immensely successful Lord of the Rings films, clearing the way for The Hobbit to continue preproduction. On the other hand, the creator of the Halo games was swallowed by another bigger fish in the entertainment industry: Disney. The elder remora (a Halo fanatic) was appalled by that, although he allowed that a possible authorized overlay (WAD, in Doom terms) of Cinderella might make it worthwhile.

  All of which leads to this question: What part of "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal" is so hard to understand?

• At GalleyCat, there's a piece on book embargoes that references a publicist's self-aggrandizing excuses for the embargo system. The real problem with book embargoes, though, is that they are relics of the production and distribution system (and calendar) of the 1950s, and haven't been rethought since. But then, that would require publishers (and film and music distributors) to pay attention and adapt to their changing environment instead of imposing their "traditional" practices upon it... which isn't going to happen any time soon.
• Charlie Stross muses on the value of goodwill, with some nods toward IP valuation by companies. It's worth thinking about, particularly in regard to Annie Leibovitz's difficulties.
• And, remaining in theoryland for the moment, Professor Patry (at his new blawg) muses on the relationship between property and property rights, and how that in turn relates to copyright. I would step back one level of abstraction farther, and ask why property and property rights are the dominant memes in the first place. There's a simple and snide answer that has more than a bit of truth to it, but may represent a "least of all the evils" situation: The rise of "law" and the fall of "equity" in the mechanisms society has to resolve disputes short of bloodshed. When the means to resolve disputes (over, say, the right to use a poem) almost always come down to an exchange of money, instead of any result based on "equity" (e.g., a court ordering that the poet grant a license to a reuser, while the reuser must not only acknowledge the poem's source and pay the license fee but must also provide a direct link back to the poet's preferred text, which differs slightly from the version that was published in The New Yawkah a few years back), everything begins to look like "property" and "property rights." This is also consistent with the broad scope of standing theory in other legal contexts. So, Professor, I think the distinction you discuss does matter... but for much broader reasons than the distinction itself.

Labels: arts, copyright, culture, intellectual property, jurisprudence, mass media, miscellany, publishing

link to: 11:12 [GMT-6]

• Giving the excuse (if given at all, that is) of tough economic times, publishers are cancelling books... again. This should remind those who were paying attention a few years back — both of you — of the excuses offered by publishers in the face of the purported "crisis" allegedly caused by "excessive returns" after changes in inventory practices at the chain stores coincided with yet another wave of distributor consolidations and failures. In short, the offered excuse doesn't reflect reality; it reflects 20-20 hindsight on whether the particular books being rejected are now good business deals (I haven't noticed Dan Brown, to name one late-to-submit-an-overdue-manuscript author, getting pulled from the publication schedule).

  It would be interesting to see a bestselling author pull a contract for which he/she believes he/she was underpaid from a publisher because the editor's letter, or the copyedit, or some other aspect of the post-manuscript-submission publishing process, was late, and that lateness interfered with the author's schedule. Goose, meet gander...

• The three people who read this blawg regularly may have noticed that I frequently make comments on "the economics of x" when discussing x. That unfortunate phrase is really just a shorthand, partially imposed by common usage and partially a result of laziness, for "economic implications and complications related to x" without being quite so longwinded... like this introduction. I commend for your consideration Nobel Prize-winning "economist" Paul Krugman's comments on the history and state of economics and, from a couple of months farther back, a much longer piece in The Economist entitled "What Went Wrong With Economics" (and four diverse companion pieces in the same issue).

  And I leave you with this thought: Much of the difficulty with considering "economics" and "economic principles" comes from an indefensible, imposed-by-doctrine distinction between what economics calls its own field and the more-general field of power relations — as if, without any supporting data, someone had drawn a line and proclaimed that "smaller than this and it's all quantum mechanics; larger than this and quantum mechanics doesn't matter"; and meanwhile, entropy rules while Maxwell's Daemon drools! For extra credit, consider the relationship of this disturbing analogy to intellectual property generally and the publishing and entertainment industry specifically.

• In the world of law, the rule of law, and jurisprudence, the "right to trial by jury" meme as a means of checking potential abuse by judges — who are, however honorable, at minimum symbols of the status quo's power structure — may be somewhat less meaningful than one would think... if, that is, juries are no better than judges at discerning the "truth." At least in the UK, some scientific studies question whether juries understand "dishonest" in a way consistent enough to reach any result.
• Some time after 10am Eastern Daylight Time (GMT-4) tomorrow, I'll be lifting my self-imposed embargo on specific, substantive analysis of the Google Book Search settlement. It's not going to be pretty; and it's going to return to the ability of the representative plaintiffs and their representatives to adequately represent the author class's interests. Hint: There are substantial legal and ethical barriers to what has been done thus far being approved... and that's the least of the problems.

Labels: copyright, jurisprudence, miscellany, politics, publishing, science

link to: 09:48 [GMT-6]

• As the culmination of an investigation started nearly a decade ago by Writer Beware (the anti-literary-scam watchdog of SFWA, which was recently joined as sponsor by MWA), the Florida Attorney General has sued a scam literary agency/vanity press based in Boca Raton for fraud (for more details, see Jim Macdonald's restrained screed in five parts — the link goes to part five, which in turn links to the predecessors). It's a source of amusement to me that neither of the two purported "general representatives" of the author community — the Authors' Guild and the National Writers' Union — seem to give a rat's ass about this topic. Instead, they're expending their efforts on something they're not competent to do (and the mess created by the incompetent handling of Tasini should be all the proof necessary)...
• The Google Book Search opt-out deadline remains today, although (due to a glitch at the court itself) the objection deadline has been pushed back to next Tuesday morning (08 September). Once that last deadline has passed, I'll be able to continue my public snark without fear of causing conflict problems. Let's just say I'm not going to be too generous to anyone involved in this mess, which is being driven by who can afford to litigate — not by those who have a coherent set of interests on litigation.
• Surprise: Google Book Search doesn't meet scholarly standards. Actually, it's no surprise at all. Although I suspect their error rate is somewhat lower, one of the main objections in many of the e-book piracy suits (and, in particular, in Ellison v. Robertson) has been that the errors introduced in the scanning process harm the integrity of the works. This is more of an issue for poets, fiction writers, and data-heavy compilations, I suspect, than for many trade nonfiction writers... but, in a deteriorating library book that may have some long-gone student's doodles and underlining in it, it's not hard to imagine scanning errors changing meaning.
• First, the oft-misguided MJ Rose actually says something sensible: if publishers expect authors to do publicity, publishers need to pay authors for doing so. Then a publisher fires back with more self-serving drivel that carefully ignores the elephant in the room: the accounting standards and returns system that enables so much fun with numbers on royalty statements. Both sides in this quasidebate are arguing about how many angels fit on the head of a pin, without ever confronting the definition of "angels" or "head of a pin"... as implied in Hachette's chief deploring the pricing pressure caused by e-books. Schade.
• Nondisclosure agreements are common when the details of a transaction could give a competitor an edge. Sometimes, though, the urge to secrecy goes so far that even the MSM takes notice... such as the recent deal in the UK allowing music videos back on YouTube (a unit of Google). As the Grauniad notes,

  The increased use of [nondisclosure agreements] in pretty much every deal that is struck between music services and record labels (and the [Performers' Rights Society]) has become a huge thorn in the side of artists and songwriters — and their managers. They argue that these deals are being done on their behalf, since it's their product that is on offer, and so they have a right to know the details of any agreement. Many believe record labels are hiding behind NDAs, so as to not pay the artists the correct royalties. It's no surprise that artists and managers have a lack of trust towards labels, as the history of the record industry is littered with examples of artists getting shafted.

• Noam Chomsky complains that choosing between car brands/types isn't enough — he wants to choose public transportation as an alternative. So, for that matter, do I; but I'd like even more to have a realistic choice in the voting booth. Particularly here in East Central Redneckistan, there's seldom much discernable difference between the Republican and Democratic candidates who actually make it to an election-day ballot; with rare exceptions, it's a choice between right-center and right-wing candidates, both of dubious personal integrity. In Chomsky's terms, that's a choice between a Prius and an Insight, with no sign of either a bus or an all-electric car.
• Guy Gavriel Kay wonders whether the semifaddish use of famous people as viewpoint characters is a good thing. The answer, as usual, is that it's really all down to execution — but Kay makes some cogent points on the extra barriers this semifad raises.
• In some Supreme Court news that will definitely escape notice by those who haven't paid attention, Justice Sotomayór has recused herself from Muchnick (aka Post-Tasini, and yes this is a snarky snipe at the NWU for its incompetent handling of the matter the first time around). This makes the specter of a nondecision — a 4–4 division of the Supreme Court, which results in nonprecedential affirmance of the decision below — disturbingly likely. This is actually a civil procedure question that is indirectly related to the long-running battle to limit the workload of the federal courts by throwing out cases for "want of subject-matter jurisdiction" when, in fact, they're being thrown out for failing of proof. The real problem is that I see at least two solid votes for continuing the (incorrect and largely indefensible) reading of § 411 as jurisdictional, and a third vote probably leaning that way, just on that meme alone.

  IMNSHO, Justice Sotomayór was correct to recuse herself; fifteen years ago, she was the trial judge on the original Tasini matter, and bears some responsibility — although not nearly as much as do the lawyers on both sides — for the screwed-up mess that resulted in the Supreme Court's decision in Tasini itself. Further, she also voted to deny en banc (entire court) review of the Second Circuit decision in this iteration on the very issue before the Supreme Court in Muchnick.

Labels: copyright, intellectual property, internet, jurisprudence, mass media, miscellany, politics, publishing

link to: 17:12 [GMT-6]

Grossman isn't a dick. René Wellek was a dick, and Grossman just never learned better.

Let me explain. No, that will take too long; let me sum up.

René Wellek was a professor of comparative literature at Yale during the second half of the twentieth century. He was primarily a literary theorist with a foundation in nineteenth-century literature. He also had a firm grip on the curriculum of the comparative literature programs at Yale from the 1970s through at least the end of the 1980s, and his influence remains discernable in course descriptions even today. Above all, though, Wellek's primary failing as a critic and theorist was — as is all too common — a tendency toward self-reinforcing conclusions that extended to inferences about individual authors... particularly regarding the rise of modernism.¹

Ah. Here's the crux of the matter: Wellek — and, based on the comments Grossman has made in both places, Grossman — was wrong about modernism, and in particular the problems raised in balancing "plot", "character", "theme", and "environment".² The consequences of the fundamental error come through rather strongly in The Magicians — a decent enough book, but reflective of the common failing of literati "slumming" in category fiction (not recognizing that others have met and explored solutions to certain classes of writing problems found in that category, and are therefore worth learning from) and undeserving of the praise showered upon it from Certain Places — and in Wellek's own writing. This is an extremely complex issue, but the simplest (and least-misleading, but still at least somewhat misleading) statement of the issue is "The value and accomplishment of a work of literature depends more upon how its constituent parts are integrated into a whole than upon the care lavished upon those constituent parts."

It's quite ironic that Grossman spends so much time defending the inclusion of "plot" in the novel, when The Magicians has almost no real plotting in its first two hundred or so pages: There is but one "plot element" that is essential to "plot" of the concluding third of the book, in one ten-page section. Instead, Grossman spends his effort on character development and, to a much lesser extent, environment (with the occasional nod toward something resembling theme and plot). Thus, in its own way, "nothing happens" until the McGuffin comes along: the ability to actually (or, at least, potentially) reach Fillory.

At least Grossman has the good grace to admit to a couple of mistakes in his WSJ piece. Now if he'd just apply those lessons to his own fiction... and escape the baneful parts of his Yale comp. lit. background... he might write something really worthwhile, instead of just better-than-the-average-cookie-cutter-series-novel. Points for effort, but not that many for execution.

1. Although I had no personal experience with Professor Wellek at conferences or the like, I heard many tales from those who did have such experience of his intolerance for being challenged on the data supporting his theoretical constructs and overneat conclusions. This, too, fits all too well with what appears to be going on, in a reflexive sort of way; cf., e.g., James Hynes, The Lecturer's Tale.
2. Which are most emphatically not the things that one learns about writing sixth-grade book reports. I won't bore you with a long theoretical diatribe that, ultimately, doesn't answer the question; I did enough of that in grad school.

Labels: arts, culture, publishing

link to: 10:00 [GMT-6]

Invasion of Poland began this morning. Warsaw bombed. General mobilization proclaimed in England, ditto in France plus martial law.

This leads to two interesting bits of historical ignorance.

On one hand, most Americans think of Poland as a little country that was quickly and inevitably swallowed by Germany (or, if they know a little bit more, Germany and the Soviet Union together) as a prelude to the also-inevitable French surrender, the Battle of Britain, and the "real" beginning of the war when the Japanese bombed Pearl Harbor. Those same Americans forget that the area conquered in Poland (about 300,000km²) was comparable to the area conquered in France, Belgium, and the Netherlands eight months later (about 280,000km² prior to the surrender).

On the other hand, Europeans still think of immense distances like the 1616km between Berlin and Moscow as defining their continent... without realizing that those distances (and terrain!) pale next to those at issue eighty years earlier in the American civil war, when the battlefield axis from Gettysburg to New Orleans of 1600km was covered without either air transport or motor vehicles... in less time. And that Sherman's march through Georgia did everything without high explosives.

It was overcast in Berlin with a light 1m/s wind, but rather warm (up to 25°C); not yet a bright cold day in April, but perhaps Orwell's thoughts were already turning that way. And in any event, it was not a good day for history.

Labels: arts, culture, military, politics