link to: 11:49 [GMT-6]

   Here's hoping they can come home soon — and that "world leaders" find an appropriate way short of war to resolve their differences that does not involve either isolationism or totalitarianism (and yes, that includes you, religious hierarchies; regardless of your purported supernatural mission, you're stuck living in the world with the rest of us). Unfortunately, hope is not a strategy...

Labels: culture, military, politics

link to: 12:39 [GMT-6]

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

Technical difficulties (with my back) have really cut into my blawgging time this past week. In any event, I leave you with this, umm, "dialog":

• In her usual, understated fashion, Ursula K. Le Guin — a giant of American letters who gets less respect than she should because some of her books are marketed as YA, and others as science fiction/fantasy — publicly resigns from the Authors['] Guild in protest over the GBS settlement.
• The AG then turns around and tries to justify its position. Recognizing the realities that "one might lose" in litigation is a good thing; as I've pointed out since the inception of the lawsuit, though, one's chances of winning are a lot better when one adopts a sensible legal theory from the outset. And, even so, after Grokster and Tasini, there is actually quite little chance of losing a properly constructed case (rats, there's that problem again). Of course, all of that presumes the validity of the economic "analysis" found in the AG's rejoinder... and it's trivial to demonstrate that it makes no sense either mathematically or in the real world. (Hint: When your conclusion requires ignoring multiple divide-by-zero errors through handwaving — or is that Invisible Hand-waving? — it's not valid. And when your conclusion requires ignoring the majority of the verifiable data available, it's not sound.)

And I really will — after an unanticipated month-long break — return to the tangent I started on 19 November about antitrust and the GBS settlement. Really. I promise. Then I'll have to get around to filing my own objection...

So happy holidays. I think.

Labels: copyright, intellectual property, internet, publishing

link to: 09:33 [GMT-6]

I have minions to do that sort of thing for me when it's necessary. Or just plain fun.

• Stanley Fish doesn't understand himself. This will come as no surprise to anyone who has actually read his theoretical writings with, well, a theoretical eye; but his defense of Sarah Palin's "autobiography", leading to a further defense of his defense, bears more than a little resemblance to the imprecations of Professor Harold Hill.

  This does not mean that I "endorse the idea that lying is acceptable in an autobiography" or that I am urging that we take what Sarah Palin "says at face value" or that I regard “deliberate factual inaccuracies” as “higher truths” or that I don't "think that facts matter at all." I am just observing that the truth or falsity of an autobiographer’s assertions is not the main focus of a reader's interest because the autobiographer’s claim on our attention resides elsewhere — in the vividness and energy with which a significant life is being recalled. (If it were discovered that St. Augustine never stole those pears, would we throw his Confessions away or downgrade the book?) The fact that others would recall the life differently and accuse the writer of "factual inaccuracies" is certainly to be noted, but we do not expect an autobiographer to respond by pleading guilty and confessing that her ex-husband or his opponent in the primary had it right.

  (citations omitted) Really? Let's apply that same reasoning to Fish's views of the First Amendment... or literary theory... or society...

• In an unusual venue, Sarah Weinman notes that publishers aren't paying attention to the business they're actually in. I have no problem with publishers earning a profit; I have no problem with most businesses earning a profit. I do have a problem with businesses focussing exclusively on short-term measures of profitability, without regard to what they're doing to earn it... such as actually publishing books.
• "People who haven't read [European fairy tales] since they were children themselves will scarcely believe that such shocking, gruesome stories are permitted in the hands of the young." The irony that this line appears in the LAT, given what's on the nightly news and/or elsewhere in the pages of that steadily declining newspaper, apparently escaped the reviewer...
• ... but at least it wasn't tentacle porn. <SARCASM> I mean, violence is bad enough — but something to do with sex? We can't have kids exposed to that! <SARCASM>
• Neither chaplains nor healthcare professionals belong in the military; it's not just disrespectful, but counterproductive, to put people whose "job" is to ensure proper care (biophysical and/or "spiritual") in the military chain of command. What part of "First, do no harm" is compatible with military service? I have no problem with a separate uniformed service for healthcare professionals... but there should never be an issue of a squadron commander trying to intimidate a physician (or, for that matter, vice versa). And chaplains are right out. Unlike most who argue on this issue, I have quite a bit of command experience myself.
• Professor Madison remarks on the hidden costs of counterfeiting, but the underlying study neglects one important corollary: The distinction between ownership per se and display. I strongly suspect that the results of the "experiment" would be radically different if the counterfeiting involved nondisplayble items... like music downloads.
• Free speech v. expectations of confidentiality. In Europe. Concerning cheap European beer (which beats the hell out of almost all American beer, but that's an argument for another time). The point of this item, though, is that it has some interesting implications for authors who want to write — even fictionally — about European movers and shakers (business, culture, politics, whatever)...
• Just in time for the Random House resurrection of e-book rights problems, we can consider resale rights and thank our lucky stars that on this side of the pond, we've got the first sale doctrine.

Labels: arts, censorship, civil rights, copyright, culture, intellectual property, military, miscellany, politics, publishing

link to: 11:21 [GMT-6]

Labels: law practice, politics, publishing

link to: 11:04 [GMT-6]

• A warning for the government guardians of French linguistic purity: The history of English linguistic purity.
• Some lament the end of Kirkus; some don't.
• In a long-overdue change in business structures dictated by fundamental economic realities that were apparent by 1998, Nielsen Business Publications has sold three and is closing two entertainment-industry trade publications. The sale includes Adweek, Mediaweek, Brandweek, Film Journal International, Backstage, The Hollywood Reporter, and Billboard; the two terminations are Kirkus Reviews and Editor & Publisher. The irony that the first three of the surviving publications are explicitly focussed on repurposing the same damned material, and the remaining four are only slightly differing perspectives on a different set of the same damned material (and an increasingly interdependent set of those perspectives), should be more than adequate warning for book publishers struggling to maintain the casebound package as the default product.
• Random House has decided that it isn't bound by settlements it doesn't like anymore (or, for that matter, by U.S. Supreme Court opinions). It will be interesting to see exactly how long it takes someone to find one of the two procedural means of making it pay...
• Mark Ingram was awarded the Heisman Trophy as the best college football player... without one mention of the substance of the "college" part. No note of whether he met Alabama's ordinary (rather low) admissions standards; no note of his progress toward graduation, his GPA, or his major; no mention of the extra tutoring available to "scholarship" athletes employees of the athletic department.
• Multicategory novelist Laura Resnick ponders vanity press scams. She does not go nearly far enough... but that's probably because she's never actually met any vanity-press owners. ("She'll never agree to marry the Prince." "Why not?" "She's met him.")
• I've often thought our banking policies were on drugs, but Charlie Stross is somewhat more literal about it.

Labels: culture, intellectual property, internet, jurisprudence, politics, publishing

link to: 11:49 [GMT-6]

• The Times proposes a list of the strangest books ever published (in English) that doesn't even begin to scratch the surface.
• One of the dirty little secrets of visa applications: Bureaucrats use their personal taste to determine cultural value and uniqueness. That makes just as much sense as having lawyers determine whether expression is "original enough" to deserve copyright protection. Wait a minute...
• Professor Lipton makes a short, sharp, and all too accurate assessment of "no infringement intended" disclaimers, which is all too appropriate in the wake of Tenenbaum (a file-sharing case claiming "fair use" because the copying was allegedly "noncommercial in nature").
• Professor Rebecca Tushnet remarks upon copyright preemption and the "special protection" state laws on copying recordings.
• Professor Crouch describes a patent infringement suit alleging that a fictional film portrayal infringed a method patent. Stopping Nicholas Cage is one thing; can we, instead, stop Michael Bay?
• Here's a Canadian preview of what's going to happen to those GBS dollars that will allegedly flow in. Remember, these are some of the same companies... and this isn't exactly news; it's not about copyright, but about business models.
• A somewhat overcautious — but not too overcautious — comment on the foolishness of trusting legal analysis that doesn't link to the underlying documents. Of course, that goes for all legal writing, in one sense; keep in mind that a substantial proportion of the necessary legal documents sit behind paywalls, and don't have persistent links and/or references.

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

link to: 12:38 [GMT-6]

A quick summary, for those coming late to the party: Earlier this year, Harlequin began a paid-critique service for submissions. Apparently, despite serious questions raised about the service (such as whether, as the initial announcement implied but carefully did not state, the critiques would come from the same editors who had otherwise rejected the manuscripts), this wasn't successful enough... so Harlequin has allegedly dropped it for a worse problem. In November 2009, Harlequin announced that it was forming a new vanity-press imprint; this was followed by various vociferous objections, a mealymouthed change in the name of the new imprint, and removal of Harlequin as a "professional"² credit by the MWA, SFWA, and RWA — the three trade groups that cover the vast majority of Harlequin's actually commercially published author pool. In turn, this has led to various apologetics by proponents of vanity publishing that vary between merely missing the mark and lying, such as some of the comments on the Writer Beware blog.

Initially, the underlying question is simple:

What part of "conflict of interest" does corporate management not understand?

The sarcastic answer is "Obviously, all of it." Sadly, based on a communication from Harlequin posted on Lee Goldberg's blog,³ that sarcastic answer appears to understate management's obtuseness. It's pretty damned obvious that nobody consulted competent, thoughtful counsel before starting either of these programs.

Internal to Harlequin, this black eye constitutes self-dilution of the Harlequin mark (and all associated marks). As a voluntary adoption of practices that are inconsistent with the perceived value of the mark ("leading publisher of series romances" has more than a trivial impact on booksellers' and libraries' perception of, treatment of, and willingness to carry/purchase its products), Harlequin's management is actually wiping "goodwill" value off its own books. This is both counterintuitive and inconsistent with the purpose of enhancing the company's own revenue streams; since any future financing — not to mention equity-market valuation — depends in part upon the value of that goodwill (at least if you believe Graham and Dodd), this will have an effect on future net profits. It also depends upon a hidden assumption: That of the captive market. Unfortunately, that's much too complex (both doctrinally and in reality) to examine in a blawg post — even one as overextended as is this one.

More subtly, Harlequin is also diluting marks that belong to others. An auctorial identity is best thought of as a mark, or at minimum a brand, regardless of the ridiculous formalism in trademark registration systems (that were put in place through the influence of publishing interests without regard to the authors' interests). Given Harlequin's cavalier attitude toward its own marks — the imprints — one can infer some (unpredictable in scale, but not in sign) effect upon the value of a particular author's name as a "quality of goods" identifier on a work that also bears one of Harlequin's marks. At this stage, it is not an actionable dilution; if nothing else, it would be virtually impossible to establish either damages or causality to sufficient legal probability without significant passage of time... and that, in turn, might allow Harlequin to interpose certain other defenses. It is, nonetheless, a dilution in the law-school-exam-question sense,⁴ and one no less wrongful for its lack of an effective remedy.

Finally, Harlequin's attempts to grab at apparently available immediate income streams reflect the dominance of short-term accounting over longer-term asset development. Some of this is an inevitable result of the short-term reporting requirements imposed by the securities laws; under the performance-measurement rubric of contemporary accounting, a profit in the next quarter is worth a helluva lot more than even predictable, substantially larger-quantity effects on the asset base several accounting periods in the future.⁵ It is more a reflection of the investment (and management) culture's understanding of the Lake Woebegone Pragma: When all of the children are "above average," the only acceptable immediate return on capital is one that is "above average." And what that says — rather unfavorably — about many of the underlying themes in Harlequin's series romances bears a disturbing resemblance to some of Lucifer's speeches before the Fall in Paradise Lost, and perhaps a bit more about self-fulfilling prophecies.

So I call on Harlequin to repent. Not just to change the name to protect the guilty, but to actually repent.

1. You won't find a link to a free electronic copy of my client's award-winning story here, because there are no authorized free versions on the web. You could, of course, try paying for an authorized copy. Indeed, this is a rather unsubtle dig at the premises behind Harlequin's recent actions...
2. It's not professional. Writing is not a profession. Writers per se are not professionals. Publishers per se are not professionals. Neither is it about "tradition"... since, if one actually looks at the "traditions" of the English-language press — particularly those of the late seventeenth century up to the end of the eighteenth century — the "tradition" is what we now call a "vanity press." See, e.g., John Feather, A History of British Publishing (2005); Robin Myers & Michael Harris, A Genius for Letters: Booksellers and Bookselling From the 16th to the 20th Century (1995). Instead, it is about commerce; and the only intellectually honest description is "commercial publisher." And this is not a bad thing at all; "commercial" merely means "in the stream of ordinary commerce."
3. Goldberg is a member of the Board of Directors of the MWA, and thus was in a position to see the entire correspondence file on this matter.
4. The irony that this dilution occurs because, on one tentacle, authors are treated as "independent contractors" and not employees by law, but on another tentacle the "series romance" is subject to an extraordinary degree of publisher control over the author's writing and even brand, just twists this particular set of panties farther into a knot.
5. This is not an attack on the securities laws; as badly flawed as they are, short-term reporting requirements are the least-intrusive and most-effective means to combat outright fraud. It is, instead, an attack on the mistaken "profit is nonscale-bound" assumption that is at the heart of neoclassical and Chicago-school economics. Once again, that is well beyond what can be examined in a blawg entry.

Labels: culture, intellectual property, jurisprudence, publishing

link to: 11:10 [GMT-6]

• In another instance of "follow the money," the WSJ has a story on ghostwriters for celebrities. Let's see, now... the WSJ is a unit of the Evil Empire NewsCorp (Rupert Murdoch's plaything), which in turn owns HarperCollins in both the US and the UK... which in the last year has published some truly execreble celebrity book-like products — one imprint of which is notorious for acquiring celebrity-based book-like products and then farming the actual writing out to independent "contractors" largely kept busy by that same imprint. That is, they're employees in all but name — a union-busting tactic, which is not much of a surprise coming from a corporate affiliate of the WSJ.
• GE has agreed to buy the 20% of NBC Universal that it doesn't own from Vivendi, in preparation for selling a significant part of NBC Universal to Comcast. Hello, DoJ Antitrust Division? In the academic work that purportedly supports the use of the HHI as a measure of industry concentration, don't the authors explicitly say (although I'm paraphrasing so that it's in English) that the HHI substantially understates potential and actual anticompetitive effects if there is a natural monopoly or other government-granted monopoly anywhere in the market definition? So why so silent? (More on this in Part 2 of my summary of antitrust tangent on the GBS, coming soon.)
• Harmony and tuning aren't universal constants of physics, as one gets taught in the "heat, sound, and light" portion of first-year calculus-based physics; they are, instead, cultural constructs often expressed in physics and enshrined in the construction of musical instruments.
• "Don't be evil," for some value of evil, doesn't begin to cover amorality from just being big... let alone evil side-effects from even the most well-intentioned expansions. After all, the sun is not "evil" when it destroys things sucked into its gravity well, but it's still immensely destructive and dangerous!
• Tactical Nuclear Penguin beer: 64 proof.

Labels: culture, internet, jurisprudence, mass media, miscellany, publishing, science