link to: 10:45 [GMT-6]

The biggest "news" is that the jury finally ruled on one of the few remaining factual controversies in Novell v. SCO. Although there's still some way to go in that case, the ownership of copyrights in Un*x may finally be close to getting a judicial resolution. Although the writeup at Groklaw is slightly breathless, it does a vastly better job of looking at the gamut of responses from interested parties than any of the commercial media writeups even attempt. Authors should care about this case for several reasons:

• Many writers' tools are indirectly "at risk" if SCO wins its claim to the Un*x operating system. OpenOffice — my preferred formatted-word mangler — only appears to be a completely new project; one can trace its progeny, including its file-reading and file-writing subsystems (which are fairly important!), back to a strong family resemblance to Un*x variants and subsystems from Sun. (No, not Blue Sun... although sometimes one must wonder.) That was from just a quick look at the source code for OpenOffice, which as the name implies is an open-source project. And OpenOffice is far from the only open-source writer's tool out there; depending upon your system, you're probably reading this based upon some form of open-source and/or Un*x-descended software (Firefox, for example; or, if you're using an OS-X Mac, the entire bloody operating system).
• But enough of toolkits. How about the mechanics of the lawsuit? What was really at issue is what it takes to transfer a copyright (in fact, because it was decided on summary judgment, part of that question is pending certiorari right now). As is all too typical in publishing, the contracting was extraordinarily sloppy. The jury decided yesterday that, whatever documents SCO did have, they did not amount to a transfer of copyright from Novell. (OK, it's a little more complex than that, but most of the curlicues concern predecessors in interest... a not-inconsiderable issue in itself.) This links back into Tasini; the overly pedantic — like me — will recall that one of the publishers' theories in that case (rejected outright by then-District Judge Sotomayór) was that a back-of-the-check indorsement attempt by the publishers transferred copyright from the freelancers to the publishers.

  In the long run, this is the aspect of SCO v. Novell that is most directly relevant to writers. Too often — hypothetically in the world of "breaking news," but disturbingly often elsewhere in publishing — publishers proceed irrevocably to publication without a proper written agreement transferring the appropriate (or often any) copyright interest, which violates the Copyright Act. Section 204(a) provides that:

  A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.

  In this instance, the equivalent of the publisher (SCO) obtained only a broad, but nonetheless limited and nonexclusive, license to Un*x from Novell... and for the purposes of this lawsuit, it needed the whole copyright, not a limited nonexclusive license. Or, at least, that's what the jury agreed; and that's what Judge Kimball¹ (PDF at 42–63) and the Tenth Circuit (PDF at 11–35) earlier found on summary judgment motions, and what is at issue in that petition for certiorari I linked to a paragraph ago.

  If there is a moral to this story, it is that sometimes lawyers really are necessary in negotiating the scope of copyright licenses and transfers... if only to ensure that everybody understands what is being transferred. The various agreements bear considerable sign of having been thrown in front of an inexperienced attorney at the last moment for a mere sanity check, if any counsel was sought at all. The parties thus ran into the Fram Oil Filter problem: The legal fees they're incurring now are a whole new engine, not just an oil filter. If that sounds to you an awful lot like what small-press publishing contracts (and too many Big Six publishing contracts) end up being, you're right.

• And more subsidiary issues than I can shake a software end-user license agreement at. In no particular order, they include the validity of post hoc rationalizations of what "must" have been transferred in a copyright licensing agreement; the effect of intervening bankruptcies when assets were not properly, or not at all, scheduled in the bankruptcy proceeding; the effect of laches on copyright transfer interpretation; and enough other juicy bits to make for a dozen or so law review articles before they begin repeating each other.

Slightly less newsworthy — and slightly less obvious — there's the issue of whether gene patents are valid (PDF). Although that sounds a long way away from anything that might concern authors, its reasoning is parallel to what "originality" means in copyright law — at a constitutional level. In the Myriad lawsuit, the direct question was whether patents on two existing-in-nature-but-newly isolated human genes related to certain varieties of cancer were proper subject matter for a patent. The Patent Act excludes mere discoveries of material "found in nature" (35 U.S.C. § 101; see also Diamond v. Chakrabarty, 447 U.S. 303, 307–10 (1980))), however "inventive" the steps taken to that discovery. This parallels the "originality" requirement in copyright law, most-obviously stated in Feist Pubs., Inc. v. Rural Tel. Svc. Co., Inc., 499 U.S. 340 (1991).

Professor Crouch rightly notes that Myriad is going to be appealed to the Federal Circuit, and plausibly predicts that the Federal Circuit will reverse (finding that the genes were, in fact, patentable subject matter) — setting up a Supreme Court decision. I think, though, that the constitutional analysis behind Feist controls in Myriad, and that the Supreme Court will then reverse the Federal Circuit.

OK, that was probably sufficiently obscure. The key point is this: "originality" (and its patent analog "novelty") have not just statutory, but constitutional, dimensions. Any change in the constitutional analysis of one of them will necessarily have an effect on the constitutional analysis of the other. And that means that the copyright rights in "mash-ups," derivative works, commentary, etc. are all indirectly at issue in the patent litigation over human genes. It may sound like a bad science fiction movie (or, perhaps, good science fiction novel), but this object is much closer (and larger) than it appears in the mirror.

1. Judge Kimball has sinced recused himself; the matter is now being heard, including the recently concluded jury trial, by Judge Stewart.

Labels: copyright, intellectual property, jurisprudence, publishing

link to: 11:29 [GMT-6]

• From the department of point/counterpoint, we have a fascinating glimpse at what "arts funding" means to artists playing against the story of an artist who escaped starvation... and the ultimate form of censorship. All of this leads to a deeper question of political economy: What is the economic value of "leisure," and is that a necessary and/or productive part of society aside from any internal payments generated?
• Yet more nonsense about enriched e-books... which is going to be a moving target until there is real, category-specific feedback on both what readers want and what the dominant technological platform in that category can support. It reminds me a great deal of the 1980s/1990s "textbook profits are from ancillaries" meme. There aren't a whole lot of people in trade fiction who think they can learn a damned thing from the textbook market, and in a sense they're right: The data one gathers is noncomparable. The questions, though...
• Two different review essays on James Shapiro's latest book on the authorship of Shakespeare's works provide a fascinating glimpse into why the controversy continues by themselves. At The Economist, the review focuses on the controversy as just another conspiracy theory, followed by the traditional debunking. At The Chronicle of Higher Education, the review focuses on the controversy as a cultural phenomenon in which the various alternatives are more alike than different, particularly in their methods.
• Substitute a few names and the year, and this story about the arrests of the domestic funadmendalist christian terrorists in Michigan (auf Deutsch) reads eerily like one about the Red Army Faction at the height of its media powers.
• Trudeau is on a roll...

  

• Here's an excellent summary of the Newzbin decision from my colleague Dr Phillips. It's an interesting decision that — although under UK, not US, law — answers the question "What if Napster had only been an index?" with a resounding "the 'red flag' theory of inducing infringement applies to all of an ISP's safe harbors, if the evidence is sufficient." It's not put in terms of the DMCA safe harbors (remember, UK law), but it discusses the relevant DMCA categories in a way that makes plain that the High Court was thinking of exactly that.

  The bottom line is that US-based sites relying on the DMCA's indexing safe harbor (17 U.S.C. § 512(d)) need to show some awareness of "red flags," too; and that is definitely going to be a problem for some of the more-notorious pirates.

Labels: arts, copyright, culture, internet, miscellany, politics, publishing

link to: 14:28 [GMT-6]

• I guess I'm old... because I actually remember Yippies.

  

  So, too, does Mr Trudeau. The really sad thing about this strip is that I didn't think of it first... because both the dynamic of the groups' memberships and the dynamic of their respective monologues is virtually identical. Maybe this is just Sarah Palin's college-age rebellion, a quarter of a century late!

• Terrorism: It's not all fundamentalist Muslims. Sometimes it's fundamentalist separatists, like in the North Caucasus region of Russia. I wonder if Sarah Palin looked off her front porch and saw that one? She'll surely have seen — and taken part in instigating — some fundamentalists a little bit closer to home, although since it was the FBI taking precautionary action the Mad Teapartiers will no doubt find a way to blame the liberal elite Obama administration. There's a little problem with that, though: Obama is a centrist, and so is his administration. That may pass for leftist in American politics, but it isn't in reality... although reality orientation isn't exactly the highest priority for any kind of fundamentalists. Think of it as a different kind of color blind: Definitely not Red-Blue colorblind, though.
• But I suppose it beats office parties at strip clubs. Some permanent moral "majority."
• Meet the new publishing paradigm, same as the old publishing paradigm: Yet another rather tepid assertion that things will change in publishing contracts without accepting that a more fundamental change driven by legal requirements, rather than distribution technology, has yet to happen. The author-publisher relationship is now — since 01 January 1978 in the US, and earlier/later than that in the UK (it wasn't entirely clear in the pre-1988 statute) &mdash: a licensing transaction, not a sale... yet the contracts, and practices, continue to pretend that it's a sales transaction.
• Maybe English will become a true global language, but that won't make Americans any better off: It's not just that we (as a group) don't speak foreign languages, it's that we don't speak our own particularly well.
• Last, and probably least:

  

  Consistent with my experience back in the day of suing automobile finance companies, mortgage brokers and financiers, etc.

Labels: culture, politics, publishing

link to: 12:39 [GMT-6]

• In remarkably restrained language, Carrie Vaughn described why she left the publisher of her NYT-bestselling Kitty Norville series for another publisher. And it wasn't about money. As should be obvious, I was particularly (un)amused by the misstatements made in the comments by "A Publishing Insider."
• Starting in June, The Times and The Sunday Times will be erecting a paywall. And as of that time, no further material from those papers will appear here.

  I was forced to watch, up close and personal, as NewsCorp did the initial destruction of The Times in the late 1980s. As a matter of principle, I don't link to material behind paywalls (it's not that I think paywalls are inherently evil so much as that such links don't belong in a free-to-read blawg... not to mention that I'm too cheap to subscribe anyway).

• Copyrights extend to more than just the copies, even for tax purposes. This is one of those "well, duuuuh" decisions that it seems surprising to find today, because the "answer" is inherent in the underlying copyright law (not to mention the Berne Convention, at a higher level of abstraction). The snarky rejoinder that tax authorities tend not to pay a whole lot of attention to context is probably more than justified...
• And now, some tea leaves for Justice Stevens's departure — from an odd perspective. (If you're reading this, you probably appreciate odd perspectives anyway.) The decision issued a few days ago in United Student Aid Funds v. Espinosa, No. 08–1134 (23 Mar 2010) (PDF) doesn't seem to be much of a tea leaf, does it? The key is that it was a unanimous decision turning on a technical question of civil procedure... and it was authored by Justice Thomas, not by Justice Stevens. I was a bit surprised by it, but not a lot: The real question presented is not what was stated on the petition, but the more functionally aware

  Is failure to make the required undue hardship finding under § 528 of the Bankruptcy Code a jurisdictional defect that allows an aggrieved party to reopen the judgment as void under Fed. R. Civ. P. 60(b)(4)?

  The answer to this is pretty darned apparent, particularly in light of Muchnick: No. A finding not made in the course of litigation is not, and can never be, a jurisdictional defect.

  I thus find myself agreeing with Justice Thomas. Again. And remembering that Justice Stevens has had a long tendency to not just be in the majority, but to write, hard-core civ pro decisions.

• The Somali pirates' business model (HT: Ashley Grayson). Application to intellectual property pirates is left as an exercise for the student.

Labels: copyright, intellectual property, internet, jurisprudence, life, mass media, publishing

link to: 13:18 [GMT-6]

• Maybe things really could be worse at GITMO. We've destroyed our credibility with the world; we've destroyed our credibility with ourselves; we've relied on unreliable interrogation techniques; but at least we haven't done this:

  

  Yet.

• Now that I've enlivened your morning with some humor — not literally gallows humor, but close enough — here are a few thoughts on the Independent Contractor Survival Act of 2010 health care "reform" bill passed last night.
  • It really is about small business and independent contractor survivability. It's rather ironic that the Heffalumps' main examples in debate on the high cost have concerned companies like Caterpillar, with their large workforces and union contracts that already pay for healthcare. Conversely, Heffalump/conservative ideology is that it's small companies that create jobs... and now those small companies will have much more equal access to health care for themselves and their employees than before, creating an even greater competitive advantage.

    Authors, and others who are true independent contractors and who do not rely upon spousal coverage, are now at least on a less-unequal footing than before. Sure, there's still going to be a lot of difficulty getting, and affording, health coverage... but "a lot of difficulty" and "virtually impossible for those not independently wealthy" are two different things.

  • Let's see just how vigilant the government is on pre-existing conditions... especially conditions incident to, but not qualifying for benefits from, military service, or an injury, or whatever.
  • Gee. I wonder if anyone has run the numbers on how this might affect workplace-compensation litigation, and come to the conclusion that there's at least one legal specialty that is in trouble?
  • Almost unnoticed in the bill, there's also a significant student-loan reform. On the one hand, it's a good start; on the other, though, in the details it's probably going to really screw anyone going back to graduate or professional school several years after completing undergraduate degrees. Ironically, though, the Department of Education personnel are ordinarily a lot more professional, a lot more lucid and willing to work with borrowers, and a lot easier to contact than are representatives of private lenders in the current market... I've never had a DoE employee outright lie to me (about me or my clients), or send the wrong forms, or refuse to take an emergency request, or refuse to disclose alternative programs for which the borrower may be eligible, but I can't say that for private lenders (even state-chartered private lenders).

    And, in particular, here's to private lenders who insist on violating the ADA. Phhhhhhhht!

• And here's a big fat raspberry to "means testing" for benefit levels... because it's almost always to the severe disadvantage of those unable to advocate for themselves. It's really, really disturbing when I know the relevant law and regulations better than people who've been administering the programs for twenty years.

  That's a slap at bureaucrats and "cost-cutters" everywhere. It's actually much worse in profit-making organizations than it is with the government; I've been inside of both for long enough to know that first-hand, and litigated with both for long enough to know that with verifiable, replicable data.

Labels: miscellany, politics

link to: 11:57 [GMT-6]

• Justice Ginsburg presided at a trial of Henry V. Leaving aside that Professor Dinh was absolutely right when, on behalf of his French client, he proclaimed "The one thing we know as French is how to surrender," this trial would have been better treated as a bifurcated penalty phase. There really isn't a question as to whether Henry was criminally responsible for the slaughter of the French prisoners; the UCMJ (Articles 93, 133, and possibly 118) and US v. Yamashita, 327 U.S. 1 (1946) make it excrutiatingly clear that he bore command responsibility, and therefore was exposed to criminal liability. The only question is whether the penalty (or, in an exercise of prosecutorial discretion, the forum) should be limited by extenuating circumstances, and the poor quality of the evidence available for decision (as Shakespeare's version of the slaughter of the prisoners is, to say the least, somewhat inconsistent with the archeological/anthropological evidence exhumed since from the battlefield).

  Application to GITMO is left as an exercise for the student.

• Apparently having learned nothing from AmazonFail 3.21, Amazon is now demanding concessions on e-book terms from publishers. Apparently, the DoJ and FTC cannot say "antitrust"... because this particular threat to alter trade custom through use of a superior economic position falls squarely inside a century of law that even the Reagan administration was unable to disturb.

     Meanwhile, Amazon continues to sell books of dubious value, as indicated in the embedded book video. (I will laugh really, really hard if Turdblossom and/or his publisher get this taken down at YouTube as "objectionable content.")

• Today's goofy, cross-country compare-and-contrast on our irrevocably broken education system: "Reforming" admissions standards at selective public high schools v. "reforming" No Child Left EducatedBehind. As long as the heroes at schools are the varsity athletes and cheerleaders, this one ain't goin' nowhere. Not nohow.
• The headline is almost more informative than the story at times: "Crime novelist Ian Rankin defends his genre." Leaving aside its inaccuracy (he's not defending all of narrative prose, so he's not defending his genre), it's rather interesting that a German English-language paper feels a need to characterize it as "defending" in the first place...
• If you really want proof that building an entire society around religion doesn't work, consider the Arab world (and take Sarah Palin with you, please).

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

link to: 11:17 [GMT-6]

• Friday was spent in waiting rooms waiting for various results on the remoras' tender fins. Yesterday was spent listening to their complaints. Today is going to be spent listening to the older remora's whingeing about wearing an orthopedic boot.
• For an example of what bar regulators do instead of either getting bad attorneys help (or, if necessary, out of the profession) or fixing the idiocy of bar admissions, consider the evils of attorney advertising. Keep in mind, too, that if the ethics rules were clearer, it would be obvious that part of actually signing a client up includes preventive statements — perhaps even crafted by the bar, if it wasn't too lazy — explaining the reality of representation in a way that no ad can really do... or undermine, if the ad is done properly.

  And in the meantime, take a look at this bar record and (admittedly, it's a different state) and ask yourself if maybe — just maybe — there are a few priority problems here... (Note: The Articles of Impeachment were enough to mandate opening a file; opening an action wouldn't have any effect on the pending federal action.)

• I'm not picking on will.i.am or his "group"; I'm merely observing that the reporter in question has caught the default state of popular music performances (and I include "country" in that) all too accurately:

  Spend too much time alone with the Black Eyed Peas’ music and your frontal lobe would rot from neglect. This is music designed to be experienced en masse without a thought clouding your head, preferably over a kicking sound system in a club or an arena. And so it was at the sold-out United Center, lobotomy central Saturday night in Chicago. One of the biggest-selling pop bands of the new century strung together every hit from its last three albums and then some in a performance that was pitched visually and sonically somewhere between a shout and a scream.

  (fake paragraphing removed for clarity) Since my brain doesn't have an off switch, I think I'll pass. Forever.

• So, they're raising — again — the cry for national school standards. There are three obvious, simple reasons that just imposing national standards can never have a discernable impact on American education. First, and most obvious, is that you don't advance the top end by chopping off the bottom and pretending it doesn't exist. A major difficulty with American education is that the students we expect to be well above the minimum — those going to college for four-year nonterminal bachelor's degrees — are already well above where those standards would be set... but their collective lack of preparation, resulting in more and more remedial work in college at the expense of what they're supposed to be learning, won't be addressed by basic-competency standards. Second, and equally obvious, standards are meaningless without teachers (and textbooks!) able and willing to teach to those standards, and too many aren't... thanks in large part to the "easy" B.S.E. that kept a lot of marginal college students from having to go to Vietnam and/or in the hunt for a spouse in the 1960s and later. Third, setting standards assumes that they're measurable and will be met... without any cheating, pencil-whipping, or funding impediments.

  So bravo, education gurus, for taking yet another cosmetic approach that won't actually make the Frankenstein monster of American education look (or act) any better... because you're refusing to accept that you put Abby Normal's brain into it, or that your century-out-of-date plans were implemented by Dr. Frankensteen (with the assistance of Frau Blücher).

• However, the Public Editor at the NYT did a whole lot better in discussing shorthand labels... up to a point. The first, and most damaging, problem is that the piece silently assumes that the American-centric labels applied by the NYT — or, indeed, anyone else in American political discourse — bear any resemblance whatsoever to reality in the first place. For example, I'm a liberal. A European liberal. And on many, many issues, that places me so far to the left of the American polity that I can't see the center over my right shoulder... but in some others (such as national use-of-force imperatives, suspicion of unchecked law enforcement agendas and personnel, the proper role of government in the arts, etc.) I'm very much in the mainstream. I'm not a progressive; I'm a liberal.

  The second, and more disturbing if less damaging problem (because there's at least an implicit admission of it), is the whole Whorfian dilemma... or, perhaps, is that Frazer's Fallacy? In any event, the act of labelling an inchoate phenomenon is both enabling and limiting; it is both essential and dangerous; it is both rational and magical. I would like to see a little bit more acknowledgement of this; and you can try figuring out what genocide means, and why Rwanda wasn't genocide if you really want to hurt yourself.

• Meanwhile, elsewhere in the NYT, the selection of books for review in the Sunday Book Review continues to misrepresent either the needs/desires of the reading public or the best of what is being published... but accurately indeed represent the preferences of the S&M gurus at the Big Six. In that sense, it's neither worse nor better than any of the other major sources of informations on books available to the general reader.
• Jay Lake explains one reason that a public option is absolutely necessary in any reform of the healthcare system: Profit-motivated insurance executives have to pull their foreskins down over their ears to hear anything.

Yep, Daylight Savings Time sure puts me in a good mood, doesn't it?

Labels: arts, culture, life, mass media, miscellany, politics, publishing

link to: 16:03 [GMT-6]

I will not pretend that this is an easy decision under existing precedent, particularly under existing Supreme Court precedent. I do think that Judge Reinhardt's dissent has the better of the argument here, but not by so much that I think Judge Bea (and his silent partner Judge Nelson) are anything other than just mistaken. The problem, I think, is that the Supreme Court's precedent on the wall between Church and State gives too little historical context to the battle between "exercise" and "establishment" in the seventeenth and eighteenth centuries, and as a result allows too much establishment to occur when it is nonsectarian establishment.

This should matter a great deal to writers.

TOBY: But I'll tell you why it should be front and center. It's not the first amendment, it's not religious freedom, it's not church and state, it's not... abstract —
LEO: What is it?
TOBY: It's the fourth grader who gets his ass kicked at recess because he sat out the voluntary prayer in homeroom. It's another way of making kids different from other kids when they're required by law to be there. That's why you want it front and center. The fourth grader: That's the prize.
LEO: What did they do to you?

The West Wing, "Shibboleth" (Season 2, whole number 30; emphasis added). Despite his "prickly" nature, I don't think we can justify what Toby's classmates did to him at recess. Been there myself... much less than a decade later (hypothetically, anyway), on the opposite coast, for merely doubting the existence of any deity and expressing that doubt. The problem is not the affirmation of belief; it's the negation, the neglect, the scorning and shunning that Lillian Gobitis and her brother endured. Then I got to see it up close and personal dealing with Southwest Asia on a professional basis... with a selection of live munitions for spice.

Right now in Jerusalem; last century in Londonderry; 1631 in Magdeburg; I could name more examples than I wish to without ever getting into what was happening in Europe at the same time as Lillian Gobitis was shunned by her classmates and expelled from school. Take your pick: Ratification of religious differences and doctrine by the state always has the same result. The irony that insertion of the religious language into what was purportedly a purely civic and political context was for an explicitly political reason appears to have escaped Judge Bea (see slip op. at 3885–90) (and his overreliance upon "Congressional findings of fact", slip op. at 3902), but not Judge Reinhardt (see slip op. at 3976–89).

In any event, the matter is now ripe for rehearing and/or a petition to the Supreme Court. I think both opinions did the best job they could, within the constraints imposed by existing dogma, to present their cases; as I mentioned, Judge Reinhardt has the better of this particular argument, albeit not by much. The battle isn't over; it probably never will be over. What was that old, oft-misquoted and oft-misattributed line about the price of liberty being eternal vigilance... and what was its context?

Labels: civil rights, culture, jurisprudence, politics

link to: 11:46 [GMT-6]

• I've long grumbled about dead-hand control of one's social and economic potential... and it appears that the UK and the US reify such dead-hand control more than do other developed countries, as reflected in an OECD report on social mobility compared to parental income. In this instance, the dead-hand control picture in the US is almost certainly skewed on the bottom end by the considerably higher proportion of immigrants from non-developed countries, compared to the remainder of the developed world... and on the top end by the efforts by the Heffalumps since the 1980s to remove barriers to intergenerational wealth transfers (once you've seen Paris, etc.).

     There's another term for this sort of thing: non-real-property feodality; and it's inimical to the longterm health of representative forms of government. That, however, is an argument for another time...

• You know that meme "there's no such thing as bad publicity"? Here are some claims that Variety "duped" a film into an expensive Oscar campaign, then trashed the film in its review. BTW, Variety just finally canned another longtime reviewer's sorry ass, so I expect an employment discrimination suit out of that to arise... when perhaps — just perhaps — Mr McCarthy's three-decade-long demonstration of his lack of critical acumen and/or appreciation for facts and cultural artifacts that don't have a Hollywood or Century City zipcode thoroughly justified his dismissal. (Remember what my first language is, as noted at the top?) Actually, though, that would be a first at Variety — that is, paying attention to what is actually said, rather than who it makes happy/unhappy — so maybe McCarthy might have a valid claim for interference with settled business expectations... which would be ironically appropriate, as his reviews were simultaneously selectively praising based on how historically cooperative the producers had been with Variety and on the whole nowhere near negative enough.
• When you hear a bank robber object that closing a library is worse than robbing a bank, you expect to be at said robber's parole hearing... not at a public hearing on the future of the Boston public library system. What I found most disturbing is that nobody, apparently questioned why a public library needs to hold any antiquities; a public library is for circulating works and for publicly accessible reference works. Antiquities belong in museums, even when they're rare books; and the irony that one of the antiquities in question is a Gutenberg bible, in Boston, just boggles.
• Ken Fisher at Ars Technica makes the case against ad blockers. On one hand, he has a point. On the other, he's flat wrong on one aspect. The reason that I and so many others — basically, anyone who gives a rat's ass about their privacy or, in some instances, security — use ad blockers is not that we object to the ads per se. What we object to is hijacking our machines by the advertisers in a way that just doesn't happen with print ads, or even those stupid PUAs on DVDs. Ever tried to do a quick news update in an airport, with a dying laptop battery, while the page won't load solely due to an advertiser's kewl flash animation (and none of the rest of the page uses flash)? How about finding cookies three years later from a site you visited once, that the advertising aggregator put on your machine as "hidden/system," and discovering that other advertisers are still querying those cookies?

  Bluntly, Mr Fisher, the problem isn't advertising. It's the technology used to deliver and track it. For that reason alone, you're wrong... because the delivery and the content of internet-based advertising have been made inseparable. And don't get me started on how the most annoying, privacy-invading, insecure aspects of advertising are due solely to incompetent and/or lazy programmers at the aggregators who are freeriding on the system by offloading data collection onto the receiver, not the transmitter. I'm looking at you, notoriously-inept-and-invasive-subsidiary-of-Google. I expect a lot more sensitivity to tech issues from Ars Technica.

• Then there's the goofiness of the Filegate lawsuits (PDF) (the over/under on announcing an appeal by the losers is 11 days at my hypothetical Vegas bookie), which were ultimately dismissed when the judge agreed that over 400 FBI files of Reagan and Bush I appointees were requested by the Clinton administration due to "bureaucratic bungling" — after well over a decade of litigation and the spawning of several characters and B-plots on The West Wing.

Labels: internet, mass media, miscellany, politics, publishing

link to: 12:32 [GMT-6]

• I'll start out with the four chords. Shortly after I discovered the subtitled audio, Professor Pasquale at Madisonian connected it directly to a hazily remembered quotation that demonstrates exactly why we don't want judges ever (especially in the Second Circuit) making decisions on the creative process, let alone artistic merit... or, for that matter, on obscenity.

  It must be remembered that, while there are an enormous number of possible permutations of the musical notes of the scale, only a few are pleasing; and much fewer still suit the infantile demands of the popular ear. Recurrence is not therefore an inevitable badge of plagiarism.

  Darrell v. Joe Morris Music Co., 113 F.2d 80, 80 (2d Cir. 1940). Perhaps it says more about Blink 182, Journey, and Richard Marx (aside from the chronic talent deficit) that they were put together so easily in the subtitled audio than any of them would be happy with...

• I don't ordinarily rely upon the Daily Mail for anything — it combines journalistic standards that would envy The Sun with the absence of Page Three. That said, the contrast between the bidding war breaking out over Cheryl Cole's proposed celebrity memoir and Robert McCrum's tired old defense of publishing as it is as the best of all possible worlds — a defense that, for a publishing insider, inexcusably (but not surprisingly) ignores more than it reveals — certainly perked up my morning. But then, I'm a curmudgeon whose life benefits from a lot of schadenfreude.
• Last, and far from least, the truth. Or, rather, part of publishing's attempts to back away from taking responsibility for it, by claiming that "responsibility for errors and fabrications ultimately must lie with the author." Well, maybe that's what the publishers and their insurers would like to believe... but it contradicts the very nature of their name. "Publish" is a relic of Renaissance-era libel law; one of the elements of a claim for libel is that the false statement must have been published to a third party. (That use of the word "publish" predates the Statute of Anne by many years, which in turn predates the first use of "publishing" as describing "the selection, printing, and distribution of printed matter to the general public for per-copy compensation" by many more.) The various industry elements don't get to run away from that fundamental aspect of their own nature simply because it would be more economically convenient for them — and for their insurers — to do so. And, conversely, they don't get to claim benefits of being a publisher — such as the work-for-hire doctrine and the equal right to sue on a copyright and "freedom of the press" — without accepting the responsibilities.

  All of that said, what to say about The Last Train to Hiroshima? In my case, nothing: my mouth is duct-taped by a conflict plus a draconian government-service nondisclosure agreement. (The line for those who wish to personally apply the duct tape forms to the right.) I am merely pointing out that the general rule has always been, is now, and — as a compromise between far too many competing interests to upset quickly — in all probability must remain, that each publisher of a statement is liable for any legal harms arising from that statement... else we end up with variants on Hit Man: A Technical Manual for Independent Contractors dominating the bestseller lists during economic downturns. In short, as annoying for the publishers as it is when an author gives them something that later turns out to be harmful (and I'm explicitly not saying that's what happened with The Last Train to Hiroshima), the obvious alternatives are worse. As usual, the kneejerk reaction at the NYT has led to a sloppily reported article and preordained conclusions, although the NYT is far from alone, either on this particular subject or in general.

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

link to: 12:58 [GMT-6]

• Here's an obvious follow-up to yesterday's gripe: The Oscar broadcast is over for another year. Good riddance. If they gave out awards for "worst scriptwriting," "worst fleeting performance by an actor or actress, regardless of the nature of the role," "worst directing," "worst unoriginal score," etc., the Academy Awards broadcast would virtually always have at least two or three nominees in every category... and this was not even a mediocre year for the awards (either in presentation or, for that matter, in the substance of much of what was nominated or honored). This year's award are further proof that nobody who is a voting member of AMPAS is actually watching and then considering the material before voting.
• Grade inflation. Yes, it happens at even notoriously hard-grading institutions. Perhaps what this is really saying is that educators are recognizing that grades — certainly at the undergraduate level — are imperfect measures of student understanding of the particular material, let alone of integrating that class's material with other material, so we shouldn't penalize students by giving unduly harsh grades if their performance on our exams and papers appears imperfect. Yeah, there's that much humility in academia.
• The Sunday Times gets sucked in again, as "John LeCarré" promises to tell about the real-life inspirations in his "spy" novels — and instead suckers the reporter with a story of glimpsed images and chance encounters that turns out to be more revealing in what it doesn't say than in what it does.
• The Supreme Court decided this morning that it wants to hear about Fred Ph3lps and his cult's hateful picketing of soldiers' funerals, in particular whether Ph3lps et al. have a free-speech right to protest that trumps the families' right to privacy during a discrete mourning ceremony. As usual, though, the questions presented aren't questions, and fail to grasp the (in this instance two) nettle:

  (1) Whether the prohibition of awarding damages to public figures to compensate for the intentional infliction of emotional distress, under the Supreme Court’s First Amendment precedents, applies to a case involving two private persons regarding a private matter;
  (2) Whether the freedom of speech guaranteed by the First Amendment trumps its freedom of religion and peaceful assembly; and
  (3) Whether an individual attending a family member’s funeral constitutes a "captive audience" who is entitled to state protection from unwanted communication.

  Rewording these so that they're clear and meet the Jeopardy standard (that is, they're in the form of a question), we have:

  (1) Is a lawsuit between two private persons regarding a private matter governed by this Court's First Amendment precedents that prohibit awarding damages to public figures as compensation for intentional infliction of emotional distress?
  (2) Does the First Amendment's freedom-of-speech clause trump its freedom-of-religion and assembly clauses?
  (3) May an individual attending a family member's funeral claim damages under state law restricting unwanted communications?

  Actually wording these as questions reveals that the second "question" is a nonstarter, with this Court or with any other, or indeed with a fair reading the the First Amendment itself.

  Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

  "Peacable assembly" is for presentation of grievances to the government, so that's out; and there's no trumping possible between two equally weighted clauses. Turning to the first question, though, one begins to see the real problem with the way the petition was presented. The question is not narrow; it is not fact-specific; and, most importantly, it misses the real point of controversy that begs for clarification by the Court as a doctrinal matter. Instead, I propose:

  (1) Does the death of a soldier in a combat zone transform him and his survivors into "public figures" who may not claim damages for intentional infliction of emotional distress?
  (2) May a speaker professing views on a subject concerning membership in a group claim any shield against damages imposed for conduct relating to a particular individual who is facially a member of the target group, but who does not share the characteristic complained of by the speaker?

  And the third question is essentially nonsense, however one characterizes it... because by putting it in the context of a "funeral" it is no longer a true issue of unwanted communications, because a graveyard is a public accommodation (even a private graveyard), and the unwanted-communications doctrine has no place in public accommodations.

  So, who should win? Nobody. That's the wrong question; there are no winners here. And as a veteran myself, I'm in a better position to say that veterans were fighting for the very rights that despicable, hateful sleazebags like Ph3lps and his ilk so grievously misused; misuse of free speech rights cannot be allowed to lead to their forfeiture, else "misuse" enlarges to swallow the rights themselves. On the other hand, there's a much deeper question here of whether anything that Ph3lps et al. did, or do, actually constitutes the "free exercise" of "religion"; merely cloaking an irrational belief and hateful actions in the threadbare claim of "but it's religious doctrine!" doesn't make it so. The Klan found that out the hard way. One of the prices you pay for being dead is the inability to protect yourself against people holding you up as a symbol for that which you do not believe you were... and it's a price for which there is not, and cannot, be a legal remedy. Thus, I'd drag this whole undead dispute out of the graveyard and treat it as a pure matter of secular law... which seems rather ironic, given that the Western construct of a "graveyard" is itself a religious one, but that is just too much reflexive irony for a Monday anyway.

• As a shadow of potential changes to come in copyright, the Senate is now taking up the Patent Reform Act of 2010. Professor Crouch ably summarizes the bill as it compares to the present law. It's the procedural niceties that have parallels in the Copyright Act that interest me; in particular, damages, venue, and the partial denigration of later-interposed defenses (in the patent context, failure to dislose best mode; in the copyright context, the scope and form of derivative works, especially when parody and transformativeness are at issue) that interest me the most.
• Meanwhile, the clock is still ticking on several filings that are required of the settling parties in the GBS settlement, with no external sign of cognizance. Then I run into my own standing problems: The works I've done that have appeared in book form with my authority are WFH, so I have no standing in the GBS litigation (and, if the WFH doctrine is constitutional, under the Copyright Act itself) to complain directly.

Labels: arts, copyright, culture, intellectual property, internet, jurisprudence, mass media

link to: 15:44 [GMT-6]

In the meantime, though, I leave you with this thought:

Chuck Lorre Productions must be destroyed.

While under the weather and otherwise tied up, including some time sitting in waiting rooms, I was forced to watch two of the worst examples of antiintellectualism I've seen come out of H'wood in the last decade: the awful, hateful Big Bang Theory and the even more wretched Two and a Half Men. I'm really getting tired of the whole "math is scary" meme (such as that recent Mike Rowe/Ford commercial in which he runs away with his tail between his legs at a school when people are studying math), which when coupled with the "smart people are uniquely socially inept" meme really pisses me off. It's pretty obvious that Mr Lorre has never spent any time hanging around in the kind of bars that two of his main characters frequent and/or depend upon for their livelihood; if he had, he'd have a much larger pallet of the socially inept to draw upon. Hell, all he had to do was go upstairs on the CBS lot... and the executives there are a lot dumber — and more socially inept — than the typical Midwestern farmer or construction worker. It probably won't come as much of a surprise that Lorre himself dropped out of college before he probably took much in the way of serious math or research (nonlecture) science.

Couple that with bad acting, racial stereotyping, and even worse scripts, and I really don't need that. If I want my intelligence insulted, I'll just go check Turdblossom's memoir out from the library on Tuesday. Having this bullshit forced down my throat in a doctor's waiting room is way, way too much. At least I've so far managed to avoid Seinfeld. And Friends.

Labels: culture, life, mass media, politics

link to: 09:45 [GMT-6]

Section 411(a)’s registration requirement is a precondition to filing a copyright infringement claim. A copyright holder’s failure to comply with that requirement does not restrict a federal court’s sub ject-matter jurisdiction over infringement claims involving unregistered works.

In short, the class definitions in GBS are now, to use the technical term, f*cked... because they always distinguished between registered and unregistered copyrights as if those are substantive measures of the court's jurisdiction.

*  *  *

Update, 1415 n.b. This is going to be even snarkier than usual, as it's mostly being written in a waiting room and posted later.

I've been looking forward to being able to legitimately make this citation for a while now:

See Morris v. Business Concepts, Inc., 259 F.3d 65 (2d Cir. 2001), abrogated by Reed Elsevier, Inc. v. Muchnick, 559 U.S. ___ (02 Mar 2010).

Sometimes it's a pain in the butt to be right. This is not one of those times. I can take more than a little bit of schadenfreude on this one, as I watch the esteemed members of the NYC BigLaw bar get their heads handed to them for their cultural reliance on their predecessors in NYC BigLaw instead of reading the damned statute.

As a quick reminder, Muchnick is the post-Tasini consolidated class action concerning online databases of periodicals. A class settlement (grievously flawed) was reached, and approved by the trial judge (restricted, as he was, by some really inapposite Second Circuit precedent) as In re Electronic Database Ligitation. Objectors, including Irv Muchnick, appealed to the Second Circuit, which reversed... but not on the merits. Instead, the Second Circuit — relying on its own precedent in Morris and Well-Made Toys — held that the settlement was flawed because it was beyond the subject-matter jurisdiction of the federal courts; that is, that federal courts had no power to enforce large parts of the settlement, because the settlement included both properly registered and not properly registered works. See 17 U.S.C. § 411(a) ("no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title").

Nobody was happy with this, so the database-exploiters filed an appeal to the Supreme Court... which was in substance, albeit not in form, joined by the objectors and the plaintiffs. The Supreme Court appointed counsel to defend the Second Circuit's decision; she did what she could, but she failed.

The Court this morning did not go as far as I would have liked; I wish that Justice Thomas's decision had said "if you don't clearly say it's 'jurisdictional,' it isn't jurisdictional, but is instead an element of the claim (or, at most, a procedural claim-processing rule)." However, what he did say is close enough for government work in the general sense, and certainly in copyright actions, as it firmly rejects treating § 411(a) as jurisdictional.

The registration requirement in 17 U.S.C. § 411(a) fits in this mold. Section 411(a) imposes a precondition to filing a claim that is not clearly labeled jurisdictional, is not located in a jurisdiction-granting provision, and admits of congressionally authorized exceptions. See §§ 411(a)–(c). Section 411(a) thus imposes a type of precondition to suit that supports nonjurisdictional treatment under our precedents.

(slip op. at 13; citations altered for form only). More importantly, Justice Ginsburg's concurrance rejects the Second Circuit's reliance on "tradition" as sufficient to justify treating § 411(a) as jurisdiction-limiting, remarking that

[Court-appointed counsel defending the decision below], reading Bowles as I do, urges on its authority that we hold § 411(a) jurisdictional lest we disregard "'a century's worth of precedent.'" But in Bowles and John R. Sand & Gravel Co., as just explained, we relied on longstanding decisions of this Court typing the relevant prescriptions "jurisdictional." [Counsel] cites well over 200 opinions that characterize § 411(a) as jurisdictional, but not one is from this Court, and most are "'drive-by jurisdictional rulings' that should be accorded 'no precedential effect.'"

(slip op. at 21–22 (Ginsburg, J., concurring); citations omitted; emphasis in original). Thus my snark above about relying on "predecessors in NYC BigLaw."

OK, so the horse is now thoroughly dead, and occupying the bottle of glue being used to bind this volume of the United States Reports. What does this mean for authors? A multitude of things... but three that are of immediate importance.

1. The Muchnick matter will go back to the Second Circuit for decision, which must now decide the objections to the class settlement on their merits. This will necessarily inform the process in...
2. The GBS settlement, which IMNSHO is now legally untenable. The GBS settlement explicitly excludes unregistered works. The overly pedantic may recall my musings on whether a decision in Muchnick denying jurisdictional rank to § 411(a) just might create vastly more intraclass conflict, as some class members would then have legitimate causes of action against publishers for failure to register. Then, too, Google might wisely back away from the settlement as written because it doesn't eliminate all exposure for Google.

   I certainly hope that the counsel who have already appeared in this matter advocating the settlement fulfill their ethical duties and file a Notice of New Authority with Judge Chin. Hint, hint.

3. Project Gutenberg's current advocacy of the position that failure to renew pulp-era copyrights registered in the entire issues of pulp magazines drops each and every story in the issues into the public domain, no matter how those stories were later registered/renewed independently by the author, is now officially dead, instead of just mostly dead.

In summary, this opinion is essentially unassailable, for a very simple reason: It clarifies that subject-matter jurisdiction is a matter of statute and constitutional authority, and requires comparison of purported jurisdiction-limiting case law to the actual language of the relevant statutory or constitutional provision that allows the lawsuit in the first place. When the statute (or, much more rarely, constitutional provision) changes, courts cannot rely on "a century of precedent" to avoid actually reading the damned statute when they are presented with a question of subject-matter jurisdiction.

Next up: I slay the Colorado River doctrine. OK, I'd really have to be a superhero to pull off that one. So maybe my next foray will be into whether the distinctions made in the Copyright Act between "US works" and "non-US works" are even properly considered "claim-processing rules," or whether any such distinction is limited to determining available remedies. Or maybe I'll mount my "charger" and tilt at the dubious constitutionality of the work for hire doctrine. (I'd have to find Sancho first, though, because I can't get up on the bloody beast unaided.)

More in the future...

Labels: copyright, intellectual property, internet, jurisprudence

link to: 11:22 [GMT-6]

• Here's a step in the right direction. Maybe. Or at least a potential step in the right direction. The Sunday WaPo included an article that promised a great deal more than it delivered (but still delivered munitions on target) regarding how the USAF treats drone pilots. The next step involves one of the other two caste distinctions in the military: academy grad v. real education, and — as implied (but not actually discussed) in the article — distinctions among services. I always was a purple-suiter with a real education, which didn't help things enough with then-Lt Col Schwartz (a Zoomie).
• Also from the Department of AviationFail: How long does it take a stalled aircraft to fall from 11,000m to the ocean? About four minutes. As interesting and well-written as that article is — and it's originally auf Deutsch — it concentrates too much on the technology and not enough on the management error before the flight: The pressure on the lead pilot to both take on ten tons of cargo, on a passenger flight, and to fly too high to a destination short of his actual destination so he could evade minimum fuel reserve requirements. (I know more than a little bit about this from my time with AWACS.) Now add in that it was an Airbus, and the table is set for disaster. And, curiously, there's not a word in that long article on why he wasn't vectored away from a storm system visible by satellite... unless, that is, Air France was too cheap to equip its aircraft with a satellite weather feed.
• Over in the UK, The Observer is gingerly, and vaguely, pointing out that celebrity "novels" aren't even good for the celebrities or publishers on their own, let alone when they are the force behind Grisham's Law.¹
• Corollary: "Britain might not make steel anymore, or cars, or pop music worth listening to, but, boy, are we world-beaters when it comes to tyranny." Coming soon to a mall near you. Although maybe part of the problem is just that Mozart isn't as objectively good as he's cracked up to be...
• Let's see whether the sale of PW by the second-most-evil media conglomerate in the English-speaking world results in any improvement in that long-moribund insult to dead trees under new top management for the magazine. Until PW is willing to call bullshit on bullshit — or even just cowpatties on bullshit, which would be a vast improvement — nobody can really trust the (relentless) positive things it has to say about the top advertisers in print publishing. Maybe not even then; but it would be a start. Perhaps, too, they'll begin consulting a lawyer on occasion when writing about the convoluted legal issues that affect publishing.
• Meanwhile, the RWA looks like it's trying to be the Authors['] Guild: Knuckling under to publishers' interests shortly after the first sign of controversy, all the while giving lip service to being an advocacy organization for writers. (HT: shamefully late to Lee Goldberg, who displays more savvy on the border between writing and Hollywood than any of the commercial publications devoted to that topic)
• My UK-based colleague Jeremy Phillips gives a restrained peroration against kewl business concept; shame about the bad lawyering that should bloody well be required reading at Google and at Amazon... and that's just two out of several obvious examples in publishing from the past thirty days.
• Finally, consider your lobbying dollars at work: The International Intellectual Property Alliance is railing against some nations that encourage adoption of open-source software... and essentially demanding that the U.S. Trade Representative take steps toward eventual trade sanctions against those nations.

1. In economics, Gresham's Law describes — nonquantitatively — how people who know that their coinage is being debased will hoard coins believed to bear full value and spend only those believed to be debased. Why I call the publishing corollary of this Grisham's Law is left as an exercise for the student... an exercise perhaps best engaged in after comparing this novel to the corresponding screenplay, and noting that it's the rare Hollywood effort indeed in which the screenplay is substantially better as literature than its previously published source material. You'll then understand all too well why "debased" is too generous a term.

Labels: arts, censorship, copyright, intellectual property, mass media, military, miscellany, politics, publishing, science