link to: 11:12 [GMT-6]

Which, disturbingly, also leads directly into the first sausage on the platter.

• This is why elected judiciaries are such a bad idea. Fortunately, in this instance, they're not dealing with an elected judiciary; but if it had been, say, the Illinois Supreme Court in question — after that last, awful campaign for judge from the Fifth District — and not the UK Court of Appeal, things would have been even dicier. And lurking in the background here in Illinois are the recent decision regarding George Ryan's pension (PDF), in which the dissenting justice gave a failing answer (on general principles, on statutory analysis, and on precedent), and any future decision regarding Rod Blagojevich's pension... those being just obvious examples.
• The last couple of days have been very big days regarding copyright piracy.
  • One of the most arrogant of the pirated-works repositories has been smacked hard by the German courts. Rapid$hare is (allegedly) a Swiss corporation with most operations (allegedly) based in Germany, but past investigation and experience demonstrates that... it's not. In any event, a group of publishers successfully obtained an injunction against pirated e-books... a number of which have no realistic market outside the US, although the purported Swiss/German nature of Rapid$hare allows it to claim with a straight face that it's not subject to the DMCA (which is a part of US copyright law, but not — yet — applicable to purely EU operations).

    What is most amusing about Rapid$hare's response to the injunction, quoted in part at the bottom of the linked article, is that it precisely parallels the losing defense offered in Grokster... and the underlying copyright law in Germany and EU is (or would be, but for Grokster itself) more open to indirect infringement, misleadingly mislabelled "inducing infringement" by Justice Souter's law clerks, claims than is the corresponding statutory framework in the US. Bluntly, I expect Rapid$hare to be trying desperately to negotiate behind the scenes so it can continue to be not just "'by far' the single biggest threat to higher education publishing as far pirating sites," but the biggest threat to pornographers making a living.¹

  • Meanwhile, in the less-bad-actors segment of filesharing, Scribd intends to optimize parts of its interface for mobile devices.² Yeah, I'm thoroughly convinced that this is not going to run into problems. For one thing, just like the GBS, it completely ignores file compatibility.
  • Sometimes, though, the bad actor may be a US-government-chartered corporation, like the Postal Service (PDF). Next up: The appeal to the Supreme Court that will argue that it's adequately transformative to constitute fair use... at which point somebody might just point out that § 107 does not use the term "transformative," or even any synonym or parallel construction, anywhere in the statutory text.
  • And sometimes ignorance isn't innocence. The Fifth Circuit has published its opinion in Maverick Record Co. v. Harper, No. 08–51194 (5th Cir. 25 Feb 2010) (PDF), rejecting a then-seventeen-year-old's "innocent infringement" defense for music files shared over the 'net. In an unusually coherent and cohesive opinion (particularly since the Fifth Circuit — Texas, Louisiana, and Mississippi — isn't exactly the top of the heap in copyright litigation), Judge Clement noted:

    These arguments are insufficient to defeat the interposition of the § 402(d) limitation on the innocent infringer defense. [The defendant's] reliance on her own understanding of copyright law—or lack thereof—is irrelevant in the context of § 402(d). The plain language of the statute shows that the infringer's knowledge or intent does not affect its application. Lack of legal sophistication cannot overcome a properly asserted § 402(d) limitation to the innocent infringer defense.

    (slip op. at 10; footnote omitted) I now await the gnashing, wailing, and rending of shirts from the 'net, as the IWTBF³ crowd (and those who despise the record companies, with some reason) try to explain that one simply must allow an "ignorant" teenager who installed "anonymizing" filesharing software after the Supreme Court decided Grokster to declare a lack of sophistication as a partial defense to a "crime" that does not require either intent or sophistication. I'll have a good time over the next few days reading the overblown rhetoric; but then, I'm a nerd... which leads to today's second snerched cartoon, this time from XKCD.

    

• From the Department of False Dilemmas (Cultural Unawareness Division), Will Self demonstrates that he doesn't understand the foundations of "art" by proposing that atheists should give up the arts for Lent and see how empty their lives would be if forced to "stride out into the world protected only by the flimsy raiment of your own reason, guided solely by the light of your own conscience, and warmed by your own imagination alone." Note that this assumes that the nonfaithful have no right or ability to draw inspiration from others, whether or not those others share reason, conscience, or imagination — instead, only Christians can do that. One word suffices in response: Gilgamesh.
• Randy Newman was so right: it's money that matters. Not just individually, but in the aggregate — and more, perhaps, than mere "poverty" itself. I've not yet read the book, but I suspect this still slightly misstates the problem (although it's closer); I don't see it the problem as "inequality" so much as "unfairly achieved/perpetuated inequality." Not too many "impoverished" activists resent Bill Gates as much as they do Paris Hilton; ok, so the activists don't know that much about Gates' own background, but he's perceived as having done something himself to become rich... not just inherit it.
• Many people don't like Maxine Waters. She's long been an "inconvenient woman of color": Imperfect, loud, critical, and unwilling to refer to bullshit as "cowpatties." Thus, it shouldn't have surprised Jeff Zucker (the top clown at NBC... at the moment) when Congresscreature Waters ripped Zucker a new asshole over the lack of diversity on NBC. Racism (conscious or not) in entertainment? Racism (conscious or not) from a French media conglomerate? I'm shocked. Now hand me my damned winnings!
• Zombies are protected from unreasonable search and seizure under the Fourth Amendment (PDF). <SARCASM> Maybe they'll extend those rights to "men driving expensive cars while being melaninically enhanced" or "women wearing hijabs," too. </SARCASM>

1. I long ago made a conscious decision that I would never turn away a client on "artistic merit" or "social value" grounds, and probably not even on "unlawful expression" grounds. And after my former career, my "ewwwwwww" factor is pretty darned high, so that doesn't enter into it either (right, Richard? remember that trademark consultation for one of your clients?).
2. n.b. Although I was not counsel of record in either suit, I was definitely heavily involved in two copyright infringement suits against Scribd... and in both instances, Scribd properly conceded when the smoking guns were waved in its face, and attempted to engage in not just retrospective, but proactive, means to resolve the disputes. Those efforts were nowhere near what I would have preferred, but the contrast with America Online (to name one bad actor I've smacked around on filesharing in the past) was so great that one would never know that — at the core — the complaints were virtually identical...
3. Information Wants to Be Free. Of course, entertainment is not congruent with, equivalent to, or even a subset of information.

Labels: arts, copyright, intellectual property, jurisprudence, mass media, miscellany, politics

link to: 11:59 [GMT-6]

• From the department of "Hello darkness, my old friend," some musings on the meaning of silence and removal... How the brain manages silence (well, maybe, because this study concerns how the brain handles the sensory data called silence... not how it handles the intellectual concept). Sometimes even the LAT gets something right, like decrying NBC's Olympic egotism in not letting the athletic performances speak for themselves, but then in the same issue refuses to extol silence as an alternative to this (my objection is to the particular works covered, combined with the fanboyish overenthusiasm for Ms Fleming's declining skills — not to the concept of opera singers recording/performing indie music).
• Finally! Someone has explained the Heffalump Party in clear, unambiguous terms!

  

  Note carefully that I am distinguishing among the Party (whether Inner Party or Outer Party is, for the purpose, irrelevant; they're equally indefensible), movement conservatism (ditto), and conservative political thought (although usually and objectively wrong — like just about any other ideology; I'm a liberal because liberalism is less wrong and less often — it's a necessary part of political thought).

• As a corollary to the currently ongoing musings on packaging, here's a great big raspberry to CBS. I wanted to point to the successful experiment Craig Ferguson engaged in on Tuesday night: An hour of conversation with Stephen Fry. No audience. No sidekicks. Just conversation between two of the more intellectually inquisitive and erudite entertainers around today (yes, Craig, it's ok to be an intellectual even if you did drop out of high school to make fulltime drinking more convenient). However, I can't. When searching for the material, one doesn't get to an authorized repository until about fifteen entries down the list — those above it on the list are almost all pirates. Going to CBS's own site is doubly frustrating. For one thing, it's apparently "too soon" to have the whole episode available on the site, even though it was an out-of-the-norm episode. For another, I can't see it... because CBS's site uses not one, but three untrustworthy ad vendors that are blocked by my routine use of a simple, popular, privacy-oriented ad-on for Firefox.

  So thanks, CBS executives. You've just demonstrated that you're just as stupid and shortsighted as anyone in publishing. Like that's a surprise...

Labels: culture, intellectual property, internet, mass media, politics, publishing

link to: 16:07 [GMT-6]

Part 1 (21 Feb 2010)
The Essay Form

Turning away from the Copyright Act for a moment, it becomes substantially clearer what we mean by "package" by looking at the commercial reality of publishing. As an example, Tad Williams's doorstop novel¹¹ To Green Angel Tower (New York: DAW, 1993) illustrates the package problem rather clearly. A quick look at the entries at Powell's discloses:

• A casebound edition, used, for the bargain price of $7.95 (original price on publication was either $25 from the publisher or $12.95 from the Science Fiction Book Club; this edition is no longer in print) — 1104 pages
• A trade paper edition, used (2005), for $12.95 (original price on publication was $16.95, now $18.95) — 1104 pages
• A mass-market paperback edition (1994), divided into two volumes; volume I, used for $4.50 (original price on publication was $5.99, now $8.98), and volume II, used for $4.95 (original price on publication was $5.99, now $8.98) — total of 816 + 816 = 1632 pages
• An Adobe electronic edition, divided into two volumes; volume I for $7.98, and volume II for $7.98 — total of 816 + 816 = 1632 pages, or 49 + 32 = 81mb

And that's just the U.S. editions... and neglects the real problem: That To Green Angel Tower is not a stand-alone novel, or even the third book in a trilogy that can be read on its own, but the third publishing increment of a single work — Memory, Sorrow, and Thorn. It's also quite enlightening to look at the choice for the basis of an electronic edition, which chops up the novel into the mass market paperback form and pagination, rather than the trade paperback form and pagination. There might be a good production reason for dividing the mass market edition into two subvolumes¹² — but that reasoning simply does not apply to e-books.

This really is about packaging. I chose Williams' novel because there is an unusual degree of fidelity — if you want to call it that — among the editions that I've personally examined over the years. Even though the mass-market paperback had to be reflowed for production, it maintains many of the same typographical and production errors that appear in the casebound edition (such as doubled commas), and contains no "new and improved author afterword" or anything like that. Although I've not put my grubby little fins on the electronic edition or the trade paperback edition for long enough to look, I strongly suspect the same — if only due to page-count identity, which is awfully hard to maintain for a book that long if one is doing actual changes and corrections between editions.

But the copyrightable expression is identical. As a Gedankenexperiment, let's put the copyrightable expression of To Green Angel Tower into Schrödinger's box.¹³ When the photon gets emitted, the copyrightable expression gets divided into either one volume, or two; on paper, or as electronic files; maybe even an audiobook edition or Braille edition. Now, without opening the box:

• How many dead trees are involved?
• How much does it cost Joe Consumer to purchase a new copy at list price?
• Most difficult of all, if the book had been scanned and placed online — whether by Google or by some kid in his parents' garage — which edition has been infringed, and what does that mean for measuring damages if statutory damages are not available?¹⁴

Now imagine that perhaps — just perhaps — this was a reissue of a work that had been published, then went out of print, had the rights revert to the author, and then got reprinted by a different publisher just in time for the author's next novel to win the National Book Award.¹⁵

One other variable that goes into the packaging problem comes from the timing/pricing/returns problem endemic in the Western and Japanese publishing industry today.¹⁶ Although there are huge variations, a trade book-length widget typically comes out on date x for approximately price y in a casebound edition, followed on approximately x+360 by a mass market paperback edition priced at approximately 0.3y; there may be a trade paper edition, too, priced at approximately 0.7y in that mass-market paperback time slot, pushing the mass market paperback edition back about 300 days. On average. With huge variations. Further complicating efforts to determine real pricing, casebound and trade paperback editions are (ordinarily) fully returnable — that is, what you see in the store is not owned by the store, but is on consignment at the store, and is still owned by the publisher. For the purposes of this discussion, though, keep in mind that it is rare — not unheard of, by any means, but rare — for the copyrightable expression to be altered between any of those editions in any but the most minor ways. Thus, we don't pay for the words; we pay for the package in which we obtain those words.

To say the least, John Locke never imagined this potential problem when he worked toward what became the Statute of Anne.¹⁷ Similarly, the drafters of the Berne Convention, the US Copyright Act, and the various copyright-related WIPO treaties didn't consider it either. Next time, we'll start to see the real price being paid for that failure of imagination.

11. This is most emphatically not a judgment of the book's merit from either a literary or a fanboy perspective. It's actually quite a good book, and integrates its thematic material much more deeply into the plot, the characters, and the prose than almost anything else from that imprint in the early 1990s. It is, instead, a description of its sheer heft.
12. Or maybe not; the layout and production quality of the mass market paperback editions somehow manages to combine wasteful and execreble. That's not a smackdown of all mass market paperbacks, by any means; William Gaddis's longer-by-wordcount unappreciated masterpiece The Recognitions clocks in under 1000 pages and yet is (physically, anyway!) more readable. It's not even a smackdown of all DAW, or all Penguin USA, mass market paperbacks.
13. The cat is, in fact, dead already, because we've already done this experiment — so long ago that the cat died, and it doesn't really matter whether or not it was in the box when it did so. All of this points out a critical error in Schrödinger's frame: It does not control for time elapsed between the event and observation of the event's effects.
14. In this particular instance, they would be, as the casebound edition was registered... albeit not timely (see No. TX0003857430). Like I said — Gedankenexperiment. Of course, this also brings up the question of whether Mr Williams might have a claim against DAW... and any professors out there perusing this have my gleeful permission to include precisely such a fact pattern on their exams. It brings up further questions regarding other registration problems, too...
15. This is not a hypothetical; see the work listed in note 12 supra for one example.
16. I simply don't have enough data to make either a similar or a dissimilar inference for China and other emerging print-publishing markets, or even for established print-publishing markets like Latin America. There's even more chaos than one usually finds in publishing!
17. Happy 300th birthday in about six weeks! See 8 Anne, ch. 19 (10 Apr 1710).

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

link to: 10:20 [GMT-6]

• The ten-rules-for-writers meme is starting to infect the 'net. They're all missing the single most important rule for writers:

  Read. Voraciously. Continuously. Good and bad (and learn to tell the difference). Old and new (and learn to tell the difference). Fiction and nonfiction (and learn to tell the difference — and when there isn't one: One of the writers quoted in the article is Jonathan Franzen...). Short works and serial novels and everything in-between. You'll never be able to read everything; you won't even be able to read everything relevant to the particular project(s) you're working on; but — unlike, say, three of the individuals quoted in the article, who are all notorious for slumming in "genre fiction" without knowing what that "genre" is — reading what is out there is the only opportunity you have to limit the mistakes you'll make writing to your own mistakes, instead of endlessly repeating the avoidable mistakes others have made.

  Besides, if you're going to be so nerdy as to be a writer, you might as well immerse yourself in others' nerdism. Of course, I think being a nerd is a good thing...

• There's now a call to limit Hollywood films to one violation of the laws of science each. Will they apply that meme to fight scenes? Or their own bloody accounting (which does not comport with the law)? Or, more to the point, to the "laws" of good — or even passable — writing? I think not.
• Conversely, Robert McCrum demonstrates, with this piece extolling increased connection of authors to society, yet another of the 57 damned good reasons that he wasn't selected as EIC of the NYTBR the last time around. If you look at what he's actually saying, what he really means is that authors will be better connected to the commercial expectations of society... and that's really not an undiluted good thing.
• Steven Strogatz tries to explain division to the innumerate, but doesn't deal with the division by zero problem... which is a shame. That would have given him an opportunity to explain both the concept of a "limit"... and why one often cannot cancel out a division by zero in an intermediate term and pretend it's not there.
• I suppose it's time for the obligatory denegration of the Olympics coverage. Leaving aside NBC's decision to show alpine skiing — again, on tape delay — instead of the US v. Canada hockey game, the coverage at this Olympics has been the dumbest in quite some time... and that's up against some pretty stiff competition. Reporters' questions have been even more inane than one finds in small-town local newscasts ("What does winning this medal mean to you?" when the athlete is still trying to breathe normally...). And, to steal shamelessly from Kris Smith, who summarized last Thursday night's program as:

  Olympics. Women's Super Combined. Women's Half-Pipe. Then, Men in Tights.

  which says far, far more about NBC's coverage than I'm going to overanalyze at the moment.

• I'm loathe to ever link to io9.com, as it appears to be the refuge of people who really don't follow that rule listed in the first item above, but I must give a tip of the hat to science fiction heroes who gave more-convincing apologies than did Tiger Woods, including my favorite (which was my immediate thought as soon as the press conference was scheduled). Of course, that assumes that anyone should give a rat's ass about Tiger's affairs in the face of Newt Gingrich's when he was a member of Congress — et cetera, et cetera, et cetera — or, indeed give a rat's ass about anyone else's affairs at all.
• I will not be covering the (proper, however much I disagree with it) exercise of prosecutorial discretion regarding Professor Yoo and Judge Bybee, except to note that it demonstrates that the legal profession's ethics rules aren't nearly as strict as they need to be... nor comparable to those that bind military officers. The irony that Yoo and Bybee were discussing matters intimately intertwined with the ethics of military officers is particularly delicious (if, that is, your mouth is like mine on Monday mornings: unable to actually taste anything).

Labels: arts, culture, intellectual property, mass media, military, miscellany, politics

link to: 13:22 [GMT-6]

Lemma: The dominant factor in determining the outcome of any dispute over creative IP rights is the package in which those rights are presented to end-users, regardless of distinctions found (or not found) within the legal framework that creates and protects those rights.

This is, perhaps, most apparent in the way that written works have been treated in litigation in the last fifteen years.

First, there was the ineptly handled Tasini matter,⁵ which concerned only copyrighted/copyrightable textual works that appeared in periodicals. As Tasini was not a class action, it ran into a two-element buzzsaw of bad civil procedure decisions in the Second Circuit, before the Supreme Court "clarified" matters. Muchnick⁶ is an attempt to expand the Tasini cause of action to include a class settlement; unfortunately, Muchnick is at least in part governed by the Second Circuit's ill-reasoned decision in Morris,⁷ one of the poster children for agency capture and self-interest by bureaucrats overwhelming the underlying legal authority.

At the opposite extreme, we've got the GBS litigation,⁸ which concerns only works published in nonperiodical text-on-paper form. Ironically, many individual works that appeared in periodicals at one time also appeared in books at another, which leads to some interesting fact patterns and maneuvering over remedies.

One example of the publishing package problem appeared in Ellison,⁹ which concerned unauthorized electronic display of Mr Ellison's copyrighted works as they had appeared in bound collections. Most of the individual stories concerned had been previously published — and individually registered, I might add — in periodicals. One package-related question that this raises, but that (due to the settlement reached after the Ninth Circuit decision) was not actually litigated: Is the collection Deathbird Stories — one of the infringed collections (and in that edition) — one unit (the book), 19 units (the individually registered stories), or 20 units (the stories plus the new material added to the book)? Then, too, there's the currently unanswered question of how Deathbird Stories is properly treated under the proposed GBS settlement, and indeed under the lawsuit itself. Consider, for example, whether Mr Ellison would be required to prove the provenance of an infringing copy of the story "The Deathbird" that appears somewhere on Google's servers (not just via index pointers). On the one hand, if it could be proven that it was from the book version — and that it was the version scanned by Google itself under the Google Library Project — it might be covered under the GBS settlement, and therefore liability had been already released (assuming Mr Ellison was both a proper and in fact member of the settlement class, which is another issue entirely). Conversely, one might question whether the provenance of the infringing copy was a different book edition of Deathbird Stories that was not included in the Google scanning, or to any of many other anthologies containing the story, or indeed to original publication in The Magazine of Fantasy & Science Fiction (which might — at least in theory — fall under Muchnick!). None of those possibilities, though, concerns the fact of infringement or the nature of the work itself — they concern only the delivery package, and subsequently the infringement package.

Another example, although perhaps a bit less obvious, is the Harry Potter Lexicon matter.¹⁰ In the Lexicon matter, nothing was filed until the proprietor of the Lexicon attempted to convert it from a diffuse set of webpages to a printed volume. Warner then interceded and brought Joanne Rowling along as a public face, considering (rightly) that people would be even more likely to direct their ire at a greedy film producer than at a greedy author. As I remarked at the time, though, the giveaway of what is really going on can be found in the copyright notices printed in the more-recent US editions of the novels:

Text copyright 2007 by J.K. Rowling
Illustrations by Mary GrandPre copyright 2007 by Warner Bros.
HARRY POTTER & all related characters and elements are TM of and copyright WBEI
Harry Potter Publishing Rights copyright J.K. Rowling
All rights reserved.

This makes excrutiatingly clear that we're really concerned, in the Lexicon lawsuit, with the form of the original works compared to the form of the alleged infringement. In short, all anyone really cares about is the package... and that is a consideration that is not relevant to the Copyright Act, which — except for works made for hire — does not distinguish among packages for textual works. The Copyright Act does distinguish among packages for certain types of nontextual works, such as phonorecordings; but we'll burn that bridge when we get to it.

That's all for today; I need another footnote, and I've self-imposed a limit of ten footnotes per entry.

1. U.S. Const. Art. I, § 8, cl. 8 ("[The Congress shall have power to] promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries").
2. Berne Convention for the Protection of Literary and Artistic Works.
3. See, e.g., the WIPO Copyright Treaty.
4. 17 U.S.C. § 1 et seq.
5. New York Times, Inc. v. Tasini, 533 U.S. 483 (2001).
6. Reed Elsevier, Inc., et al., v. Muchnick, No. 08–103 (argued (U.S.) 07 Oct 2009; decision pending at this writing).
7. Morris v. Business Concepts, Inc., 259 F.3d 65 (2d Cir. 2001), abrogated and replaced by 283 F.3d 502 (2d Cir. 2002).

   The agency capture lurking behind this decision was reflected in the Register of Copyrights' support for the defendant's position that each individual copyrightable element of a periodical must be separately registered; under that reasoning, the publisher's registration of the entire issue of a periodical does not cover the individual works appearing therein, unless the copyright of those works belonged to the publisher at the time of registration (as was required under the 1909 Act). Leaving aside the inconsistency between this analysis and the Berne Convention's derogation of formalities — and leaving aside the illogic of it all — the Register's position reflects an attempt to protect the Copyright Office's income stream from registrations. Cf. generally Conrad Peter Schmidt, Changing Bureaucratic Behavior: Acquisition Reform in the United States Army (2000) (esp. ch. 3) (PDF); John Hendry, Beyond Self-Interest: Agency Theory and the Board in a Satisficing World, 16 Brit. J. Mgt. S55 (Spr. 2005); Dan Kahan, Democracy Schmemocracy, 20 Cardozo L. Rev. 795 (1999).

8. The Author's [sic] Guild, et. al. v. Google, Inc., No. 2005–8136 (filed 20 Sep 2005), class settlement proposed. n.b. If you're reading this essay on my blawg, I probably don't have to tell you that I've harshly criticized both the underlying lawsuit and the proposed settlement from the beginning.
9. See, e.g., Ellison v. Robertson, et al., 189 F. Supp. 2d 1051 (C.D. Cal. 2002), rev'd in part and remanded sub nom. Ellison v. America Online, Inc., 357 F.3d 1072 (9th Cir. 2004). n.b. I was lead counsel for plaintiff Harlan Ellison in the matter; the caption in the Google scan of the West reporter for the appellate decision is wrong, as the Ninth Circuit itself had redesignated the matter Ellison v. AOL for all purposes.
10. Warner Bros. Entertainment, Inc. v. RDR Books, Inc., 575 F. Supp. 2d 513 (S.D.N.Y. 2008). This was less a copyright suit than a trademark suit that borrows copyright remedies... which reinforces the point of this already extended essay.

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

link to: 10:02 [GMT-6]

• Andrew Albanese at PW asserted that "For his part, Chin gave only slight clues to his thinking, telling the parties at the outset of the hearing he had both 'an open mind' and, at the end of the hearing, that he had 'a lot to think about.' While engaged, curious, and at times humorous, he firmly moved the hearing along and gave little clue to which side he may be leaning." Yeah, that's a big surprise — Judge Chin never gives away how he's going to rule, even when he rules from the bench.
• Philip Jones at The Bookseller appears to have relied almost entirely upon Albanese's report, with an occasional nod to other reports. Ironically, most of Jones' citations to other sources go behind paywalls...
• Cecilia Kang at WaPo concentrated her summary on the DoJ's objections. As a reminder, the DoJ's objections were not on behalf of the Register of Copyright... since the DoJ is in the executive branch, while the Copyright Office is part of the Library of Congress, which in turn is in the legislative branch, this isn't surprising.

What I find most frustrating about these accounts is that it is quite apparent that none of the reporters have the foggiest idea of what a "normal" fairness hearing looks like. (Well, neither did counsel for the Authors' Guild before they put forth this monstrosity...) Although Judge Chin quite properly maintained public disengagement from the merits — it's a hearing, not oral argument on appeal — comments made by others inside the courthouse who have participated in fairness hearings before indicate that he was not very happy with the minimal scope of changes in the amended settlement. Ordinarily, when the parties ask to defer the fairness hearing in the face of objections, the amendment — and briefs supporting the settlement — at least deals with the subject matter of the objections. This amendment (and the supporting briefs) did not.

Further, it is quite apparent that many of the objectors and supporters just summarized their own briefs; that's not just bad rhetoric, it's improper. See Man. Complex Litig. (4th) at §§ 21.634, 21.643; see also In re “Agent Orange” Prod. Liab. Litig., 597 F. Supp. 740 (E.D.N.Y. 1984), aff’d, 818 F.2d 226 (2d Cir. 1987).³⁵ Instead, those objectors and supporters should have taken the five minutes afforded them to discuss the replies to their written submissions... such as the egregious misrepresentations (so egregious that they implicate, and perhaps violate, R. Prof. Cond. 3.3(a)(1)) of the objections, the facts, and the relevant authority found in the AG's and Google's reply papers.

I have quite a bit of sympathy for Judge Chin. He's fighting a monster, but provided only a pocket-knife from too many of the parties, objectors, and supporters to deal with it. One of the rules of thumb of good brief-writing is that the judge should not have to engage in further legal research just to figure out what the issues are. Both the papers themselves and the progress of this hearing demonstrate pretty conclusively that Judge Chin will have to do so.

35. This represents the proper use of a book-scanning system... as federal opinions are, by definition, in the public domain (no matter what West whines about otherwise). It thus gives me some evil pleasure to cite this way against the GBS...

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

link to: 16:55 [GMT-6]

At the library, on the new books shelf, I spotted The Sexually Transmitted Disease Sourcebook right next to Living With AIDS, and was tempted to see if the former might have a condom on it.

Illinois has joined the list of desperate states participating in MegaPowerBall. How do I know? Because I've been incessantly bombarded by a commercial of a guy falling joyfully, in slow motion, into a pile of PowerBalls... set to some of the music of my misspent youth: Boston's "More Than a Feeling." Yeah, the lottery — the ultimate popular exercise in ignoring basic math — being advertised via a band formed around a guy with a master's degree from MIT.

And there's more snow in DC than at the site of the Winter Olympics... even excluding the snow jobs in DC. Which isn't too surprising, really.

Sarah Palin and her daughter are busy demonstrating that not only do they just not get satire over The Family Guy's (frankly inept) references to Down Syndrome, but that the stereotypical Down Syndrome baby is a lot smarter than they are.

As Jay Lake points out, the Mad Tea Partiers are a bit oversensitive about the label applied to them. In the grand tradition of the word analogies section of the SAT — a sadly defunct artifact, I've been told — I offer the following:

conservative political theory is to "movement" conservatism
as
the theory of democracy is to People's Democratic Republic

Labels: culture, life, mass media

link to: 12:49 [GMT-6]

• It looks like Southwest Airlines has decided that Amazon is the model of appropriate public relations. It's not just that Southwest threw Kevin Smith off a flight for taking up too much space... it's the reaction (or lack thereof).
• Robert McCrum writes well out of character in The Observer by acknowledging that the GBS battle is not exactly a new and unique one. Now if he'll just bring more understanding of historical context to his regular commentary...
• Hillary Clinton claims that Iran is in danger of becoming a military dictatorship. <SARCASM> And that is different from a theocratic dictatorship, or a CIA/MI5-sponsored military dictatorship, or outright colonialism, or two thousand years of absolute monarchism, in what way? </SARCASM> Persia/Iran doesn't have a history of anything except totalitarianism.
• In yet more fallout of AmazonFail 3.21, Google appears to be in the process of allowing publishers to set prices for its Google Editions service. <SARCASM> And there's no connection whatsoever to the GBS settlement and its projected profit stream, as Google still believes the settlement should (and will) be approved substantially as it now exists. </SARCASM>
• Meanwhile, PW continues to demonstrate that it can't be bothered to ask for assistance from the thousand (no, that's not much of an exaggeration) lawyers elsewhere in the Reed empire with this incredibly imperceptive reading of Google's "brief" supporting the GBS settlement. The scare quotes are there because it barely qualifies as a brief — which is supposed to bear at least some resemblance to reality, and instead takes more than a few liberties with both the facts and the law.

Labels: copyright, culture, intellectual property, mass media, military, politics, publishing

link to: 12:05 [GMT-6]

 
karaoke-sung, slightly off-key, to the tune of
Dire Straits, "Money for Nothing"
 
[sotto voce] I want my, I want my e-books free
I want my, I want my e-books free
I want my, I want my e-books free
 
[air-guitar solo]
 
Now look at them yoyos
That's the way they do it
They read my novel on their Kindles — free!
That ain't stealin'?
That's the way they do it
Info ain't for nothin' and e-books are free
Now that ain't stealin'?
That's the way they do it
Lemme tell ya them guys ain't dumb
Maybe get a blister on a mouse-wheel finger
Maybe get papercuts on a thumb
 
They gotta work in Microsoft Windows
Custom software deliveries
They wanna upload your bestsellers
They wanna download e-books free
 
That little hacker
With the file-share startup
No buddy his school don't care
That little hacker
Got his own jet airplane
That little hacker
He's a millionaire
 
They gotta work in Microsoft Windows
Custom software deliveries
They wanna upload your bestsellers
They wanna download e-books free
 
I shoulda learned to burn some software
I gotta learn to like them bums
Look at that mama!
She got it stickin' in the scanner, man
She'll share some fun
And he's searchin',
What's that? Indexin' noises?
Bangin' on the keyboard like a chimpanzee
That ain't stealin'?
That's the way they do it
Info for nothin' and e-books for free
 
They gotta work in Microsoft Windows
Custom software deliveries
They wanna upload your bestsellers
They wanna download e-books free
 
[air-guitar solo]
 
I want my e-books free
I want my e-books free
I want my e-books free
 
That ain't stealin'?
That's the way they do it
Info ain't for nothin'; e-books for free
 
[sotto voce] I want my, I want my e-books free
I want my, I want my e-books free
I want my, I want my e-books free
 

All trademarks property of their respective owners. Yeah, right.

Labels: copyright, culture, intellectual property, internet, mass media, publishing

link to: 11:30 [GMT-6]

• Here's a fascinating look at one author's collaborative process that is even more interesting for what it notes about a "behavior v. speech" issue in publishing.

  [The] comment that my bigger byline on The Big Bang may indicate a bigger contribution by me is at odds with the truth of publishing. Often times, the bigger name of a dual byline did the least amount of work. You Can't Stop Me is very much a fifty-fifty novel by Matt and me, but my name is much larger, because I am the bigger name (at the moment). But usually with such a situation, you could safely guess that the smaller name did more or even most of the writing.

  (typography corrected) Now compare the size of author names to the size of imprint names and logos, and ask yourself whether the dominant brand in publishing is the publisher's or the authors... then compare the answer to recent publisher (and even bookstore, such as Amazon's in the Amazon/Macmillan kerfluffle) rhetoric. Even more directly, ask yourself whether this kind of behavior discloses anything behind Amazon's accusations of monopolization against Macmillan... particularly given examples like Charlie Stross.

• Stanley Fish demonstrates, yet again, the dangers of providing a public forum for analyzing "freedom of expression" to anyone exposed to Jacques Derrida without a reality-based 2x4 to the head following closely thereafter (the 2x4 that whacked me was dealing with the "speech act" problem in national security... with my own butt, among others, on the line). His most-recent commentary on Citizens United — the recent 5–4 reification of "money talks" — falls apart on so many levels that it's almost impossible to deconstruct (!) it without taking up five times its word count. I'll just satisfy myself with one critical remark: His analysis is entirely remedy-free, which in turn means that it can't be applied in the real world in which remedies drive actions just like whether an objective can be achieved through military means drives use of the military. Fish's entire position falls apart at that point, even without demonstrating his polemical misrepresentations of doctrine and the holdings of the specific cases he cites.
• At least Fish doesn't cite The Simpsons for anything, though... even if a prominent French "public intellectual" does the equivalent. One might think that a "school" of philosophy named after a toxin most-frequently encountered in improperly stored food would cause a true intellectual to dig a bit deeper before relying upon it.

Labels: civil rights, culture, intellectual property, jurisprudence, miscellany, publishing

link to: 10:28 [GMT-6]

Anybody left? (Around here, that probably means "everybody is leftist," as my few conservative readers tend to ignore anything I say is complicated...) These musings are incomplete, at least as of yet; it's hard to have complete musings when events are still evolving. In any event, the general subject — disintermediation — deserves quite a bit more attention than it's going to get otherwise... because, in a bit of infinite reflexiveness that would make any late-1980s artiste squee with fanboy/fangrrl joy, the word changes meaning based upon the immediate personal interests of the speaker, without regard to context.

Although there is a technical, purely economic definition, "disintermediation" most often refers to removing intermediate links between a producer and an end-user of a commodity; in contemporary discourse, that is usually an information-based commodity. For example, the moronic "long-tail theory" espoused by ignoramuses like Chris Anderson at Wired (see the second-to-last sausage on this platter for a beginning point) asserts that all artists would be better off by following a model that applies to at most a little over 2% of all artists, in reality applies to far less than that... and is balanced by corresponding abject economic failures. In this model, artists get rid of everyone between them and the end-users: No recording studios, record labels, concert promoters, and/or record stores; no editors, cover artists, printing plants, warehouse/distributors, or retail outlets. The underlying assumption here — and it's easily refuted by saying "Van Gogh" — is that the intermediate roles require nothing but the will to fulfill them.

Nothing. No expenditure of resources; no independent motivation; no opportunity costs; no product improvement prior to market through feedback.

And so, we end up comparing the Macmillan/Amazon kerfluffle with the Google Book Search settlement. Wait a minute... how did he end up there? They're both about just how much intermediation we're willing to tolerate... and they expose substantial doublethink in redefining terms for the moment.

On the one hand, a not-insignificant portion of (potential, mostly) e-book consumers (who won't buy from Amazon at any price... because they're pirates) applaud Amazon for standing up to the big bad bully Macmillan that is trying to raise the prices of some e-books. That crowd is rallying around "$9.99 or fight" (echoes of "54-40 or fight" and its attendant hypocrisy purely intended), accusing Macmillan of undermining truth, justice, apple pie, and free e-books, and often invoking the disintermediation meme as a purportedly nonnormative justification. The real problem is that this actually reinforces inserting an additional intermediary in the long term: If the model Amazon has demanded (Amazon sets all pricing and compensation terms) becomes dominant, it entrenches Amazon as an additional intermediary and discourages publishers from developing direct-sales systems that — if one accepts the pollyannish enthusiasm of the long-tail advocates — will eventually be adopted directly by writers, thereby cutting out both stages of intermediation. Hugs and puppies for everyone, right?

Conversely, one could look at the problem through the publisher's lens for a moment, and come to equally disturbing conclusions about antitrust and publishing (in particular, the commercial-fiction segment). From this perspective, Amazon is attempting to use oligopsony power to force a particular set of economic terms upon the publishers as the sellers of the goods in question, in a market that already has nearly crippling customs in favor of the downstream actors. From the returns system to net-90 and net-180 payments, from paid-for endcaps to complete noncommunication between chain buyers and floor salescreatures, there is an almost incomprehensible set of barriers — worse even than in automobile sales (and that's really saying something). And here is one of those oligopsonists, demanding terms that further restrict the publisher's flexibility and ability to adapt to changing conditions... No hugs or puppies for anyone.

It gets worse when one looks at how the Google Book Search settlement would operate... because functionally it represents massive new intermediation, in multiple steps. The first step is the most obvious: Google itself as a 500kg gorilla sitting on top of the distribution of out-of-print works in electronic form. And it won't be free: Google is a business, and is going to find a way to stick someone else with the bill — ads (that consumers pay for in the increased price of the advertised goods and services), access fees from libraries (that consumers pay for through increased taxes and user fees), whatever. A little profit would be nice, too, eh? The second new intermediation step, though, is less obvious: The "trust" to handle orphan works, which will (based on historical experience) suck any revenue stream dry with "administrative costs", at least for the first few years... and also represents a disturbing potential for censorship.

What these two contemporary examples tell us about disintermediation is that we're not really talking about disintermediation. We are, instead, talking about rents extracted as a price for adding value. This is, indeed, where it becomes apparent that both Amazon and the GBS settlement mechanisms deserve further scrutiny as potentially wasteful intermediaries... and the publishers deserve scrutiny, but not as intermediaries. Neither Amazon nor the GBS settlement system concerns the actual addition of value to a product or service; instead, they represent purported marketplace efficiencies. In the strict, neoclassical view that economics is only about the efficient allocation of goods and services while minimizing transaction costs, a rent extracted for facilitating a marketplace is justified if, and only if, that rent is less than the increased efficiency actually achieved through that facilitation. Anyone who knows anything whatsoever about the arts — let alone publishing — can recognize that there are multiple, unmeasurable assumptions in there, and that instead we just assume that centralized distribution is more efficient in the arts because it is often more efficient for fungible commodities.

So, in the end, "disintermediation" turns out to be a rather useless meme in this context; we are, instead, considering the identity and nature of the intermediaries we are willing to accept. And that is not a nonnormative argument... which, in turn, demonstrates that — even without acknowledging that both the Amazon/Macmillan and GBS settlement transaction frames are between intermediaries and do not include either the actual producers or the actual consumers — economics, and in particular neoclassical economics, cannot help us find an answer. An economic analysis only shows us exactly what kind of tango we're really dancing.

Labels: arts, copyright, intellectual property, internet, mass media, publishing

link to: 10:55 [GMT-6]

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

The Department of Justice has filed an objection to the Amended Settlement (Doc. 922, 04 Feb 2010). Before jumping into that objection, I'd like to reemphasize something that it is not: The opinion of the Register of Copyright. Her objections on substantive copyright grounds — not antitrust and procedural grounds — were very much lost within the DoJ's initial objection (Doc. 720, 18 Sep 2009), and haven't been completely unearthed here (but see 9–10).

That said, the DoJ's objection is quite damning, arguing that:

• The named representatives don't have the authority to do what the settlement does;
• The named representatives are, in any event, inadequate;
• The notice provided has been inadequate;
• Tasini,³⁴ not the purported "dispute resolution structure," controls disputes over who has the electronic rights in the first place;
• The structure continues to be inadequate under antitrust law; and
• Even if approved in principle, the court needs to impose significant additional safeguards.

I suspect that this will strongly influence Judge Chin.

Procedurally, the next step is the Fairness Hearing before Judge Chin on 18 February. This will consist of a string of lawyers, spiced with a couple of laypersons, making speeches to Judge Chin and getting interrupted by him. The Fairness Hearing will not involve witnesses, cross-examination, presentation of evidence, or anything along those lines; it is, instead, a hearing "in equity" (not "in law") before the court. Judge Chin may ask questions of the presenters... but they don't get to talk to each other. Judge Chin will then go away and think about the matter for a while — if he's thoroughly convinced by an objection, maybe as little as a day, but more likely between two and six months — and then issue an order and opinion. That order and opinion may accept, modify, or reject class certification and the settlement independently of each other. IMNSHO, it should also concern itself with whether the two underlying cases can continue to be consolidated... but no party has specifically raised that as an issue, and it's unclear under Second Circuit law whether the only submission that comes close to raising that specifically (the DoJ's!) does so clearly enough to justify it, let alone with standing to do so.

Judge Chin's eventual Order and Opinion may do one or more of:

• Reject class certification vel non;
• Redefine the class, including subclassing within the author and/or publisher classes;
• As I believe he should, but has been largely ignored, deconsolidate the author and publisher cases and force resubmission of separate settlements;
• Force redesignation of class representatives;
• Direct modifications to the settlement, and conditionally accept it;
• Suggest modifications to the settlement, and conditionally reject it;
• Reject the entire settlement, including class certification;
• Reject the settlement, but certify the class(es);
• Approve the settlement without modification (although I don't think this has a snowball's chance in a DC summer of happening).

And anything else that happens depends on what is in his order and opinion. Note that there could well be some overlap.

The next stage may, or may not, be in front of Judge Chin. Some of those possibilities would allow an immediate appeal to the United States Court of Appeals for the Second Circuit, as a matter of right; some of those possibilities might allow an interlocutory appeal immediately to the Second Circuit, if they involve "a controlling question of law, the answer to which will materially advance the litigation" (see 28 U.S.C. § 1292, although that quotation is from a classic opinion interpreting the general question of interlocutory appeals and not from the statute); and some of them will not allow an appeal until a final judgment has been issued (of course, if he approves the settlement in its entirety without modification, that will lead fairly shortly to a final judgment...).

So, in many ways, the fun is just beginning.

34. Ironically — and indicating that this brief was drafted by the Antitrust Division, and not the Civil Litigation Division — the DoJ's brief never cites Tasini itself, and particularly not footnote 6

    More to the point, even if the dissent is correct that some authors, in the long run, are helped, not hurt, by Database reproductions, the fact remains that the Authors who brought the case now before us have asserted their rights under § 201(c). We may not invoke our conception of their interests to diminish those rights.(New York Times, Inc. v. Tasini, 533 U.S. 483, 498 n.6 (2001))

    which pretty definitively answers the question.

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

link to: 11:12 [GMT-6]

Today is National Signing Day for football players. It's a tremendously offensive day, particularly to those of us who are parents of disabled children. There is not one mention — anywhere — of whether these athletes have been admitted to the colleges of their choice(s). Nothing. As it happens, I enjoy watching college sports. I also enjoy watching a Labrador Retriever's wagging tail clean off a coffee table, because it's amusing. The tail, however, is just an appendage... and that's what college athletics is supposed to be, in theory, if you listen to the pious mumblings from those who justify so-called "athletic scholarships."

My modest proposal is that National Signing Day should be deferred until the fifth business day after the national admissions deadline (currently 15 April)... and that candidates may only sign to schools that have actually admitted them. OK, so maybe that's just going to make some schools continue to admit marginal (and worse) candidates at the expense of better ones. It might, however, actually start a conversation, and perhaps some questioning like "Why does the university give 95 need-blind full scholarships to football players and a total of 6 need-blind full scholarships to engineers (and none to English majors)?" (Yes, U___ of ___, that is exactly what happened last year.)

Here in Illinois, there were primary elections yesterday — the only elections in which I don't vote, because Illinois has closed primaries and I refuse to dirty my name by associating with either corrupt faction of conservative-to-moderate morons (and the Greens are, in most cases, worse... being right-wing nutcases around here who modify their cryptolibertarian principles to be sensitive to hedgehogs). The races in both parties for the nomination to be the elected successor to George Ryan and Rod Blagojevich's hair are, at this writing, still quite close, and subject to Daleyesque/Strattonesque revisions in the vote tallies. (What? You thought the Democratic Party had a monopoly on voting fraud in this state?) That said, it appears at least that the Republicans did not agree to put forth the candidate running for dictator.

Andy McKenna — a man with corruption problems of his own — has been running a series of commercials in which he promises to be a "businessman" (hey, doesn't that mean Mafioso in some parts of the country?) and not just work to prevent tax hikes, but absolutely and positively prevent them... and so on, running down a list of movement-conservative memes that ultimately constitute a tale told by an idiot — sound and fury, signifying nothing. Pardon me, Mr Candidate, but the Governor does not have the authority to absolutely block a tax hike (or, indeed, any other measure passed by the Legislature... there's this little thing called a "veto override"), or — in this state filled with political dynasties on both sides of the aisle — even the power without authority. Winning the election for governor would not give you dictatorial powers to decree by fiat. A couple of hundred years ago, the First War of American Secession was fought over that issue, and the pro-dictatorship forces lost. Get over it, and get the hell out of "leadership" contests until you accept it.

And while you're at it, take the so-called "Committee for Truth in Politics" with you... although, I suppose, the Supreme Court's decision last week in Citizens United has made it not just possible or inevitable, but routine, that even the state that gave rise to Madigan would be inundated with ads that engage in misrepresentations that would — in the commercial speech context — get a justified preliminary injunction from the FTC so fast that the air would crackle. The irony that the current CTP campaign concerns a banking bill in this new era of "money talks" seems to have escaped most commentators.

Labels: culture, life, miscellany, politics

link to: 13:23 [GMT-6]

Meanwhile, the Amazon/Macmillan kerfluffle continues to generate lots and lots of ire on teh internets without anyone coming any closer to reaching a conclusion, let alone a resolution. As almost-certain-President-elect-of-SFWA John Scalzi notes (without being explicit about it), the corporate egos are going to lead to a lot of collateral damage. Ego continues to rule everthing in Hollywood, even the news... or, given that the nominees for the little gold men were announced this morning, perhaps that should be especially the news. And meanwhile, the world continues to turn (as does my stomach as a result of the preceding paragraph).

The Grammys, as usual, continued their decades-long tradition of not actually listening to the nominated performances; at least, that's the only inference I can make when more than one winning piece included significant off-pitch singing...4CPAWDTTUGSS

Labels: culture, internet, mass media, publishing

link to: 11:39 [GMT-6]

• After AmazonFail 3.21 this past weekend, I can't resist yet another update. There has been some misunderstanding of "reseller" and "consignment" floating around the net; one of the more-rational examples occurs in the comments following a post on Charlie Stross's blog. The problem is that Amazon is not a reseller of dead-tree books in the first place: That requires that Amazon has full legal title to the books, and since they're returnable Amazon does not (by definition) have full legal title to its stock. You want some proof? Look at the fiascos resulting from the iBooks bankruptcy followed by the PGW bankruptcy!

  There is one business model in which the consignee sets both the commission rate and the basis for the commission (with full authority to discount that basis in individual transactions), which is what Amazon has functionally asserted for the Kindle program: The bugfuck-crazy world of art galleries. There's just one tiny little distinction between fine art and dead-tree books, let alone e-books, that makes the comparison even more bugfuck crazy: Pieces of art available through a gallery are individual, unique items; although book titles also fit that rubric, book copies do not. Then, too, there's the thriving individually commissioned work of art market existing right alongside the galleries...

• Sometimes some of the best legal analysis comes from non-legal sources. Sometimes some of the best news reporting comes from satire. And sometimes we've got both at once. Thanks, Stephen: I needed that.
• When I saw the Trib proclaim that it "will become a little narrower starting Feb. 8", I wondered how its viewpoint could get any narrower than it already is... and then realized that they're just going metric. That's right: Even though you don't see any acknowledgement of it anywhere in the article, the "real" cause is that paper suppliers and printer manufacturers have — for years! — been going metric. As our paper supplies are increasingly coming from Canada, which managed a conversion to metric for most purposes (specifically including paper sizes) long ago, someone realized that adopting instead of fighting the standard just might save some cash... but far be it from that right-wing piece of crap to acknowledge that them damned furriners made them do it.
• New math at the NYT: A new column in the Opinions section will try to teach math to the math-averse adult. Fortunately, the NYT gets delivered to just about every Congresscreature's office; unfortunately, there's just not a lot we can do to make them actually read it... presuming that, after growing up the American education system, they can read it. As long as "nerds" are culturally treated as inferior to "jocks" (and even the Yearbook staff) by both the students and the faculty/administration in high schools, nothing that top-down education "reform" tries is going to work.
• The enthusiastically innumerate Chris Anderson, though, continues to act like an AIG or Enron executive (circa 2001) with his ridiculous claim that the so-called "long tail" shows how manufacturing can succeed. There's just one problem with this meme: By definition, the "long tail" at the top end — the Pollyannish part extolled by Anderson and his ignorant horde — consists of around (100 – 95.45)/2 = 2.28%... and is balanced by a corresponding 2.28% at the bottom. It's one thing to point to the top end of the long tail for examples of practices; it's another thing to expect successful adoption of those practices by the rest of the dog, and particularly that cold wet nose at the other end of the creature. That's not quite as irrational as using the lottery as a retirement savings plan, or relying on "best-seller" status without attaching any numbers, but it's close (mathematically, too).
• Jay Lake all too accurately notes "Wow, I sure wanted a trillion dollar Iraq War more a whole lot more than I wanted a moon shot" in response to Obama's rumored (and essentially forced by what he inherited) intent to eliminate the manned return-to-the-moon program.

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