link to: 11:47 [GMT-6]

And, for you right-wing nutcases from south of the Manson-Nixon line who continue to have a grossly disproportionate representation among the US military leadership (and are the biggest single bloc resisting the elimination of DADT), remember that Memorial Day was established to honor soldiers who died in the Second War of American Secession (1861–65). Or you could just remember this:

It's about more than the official start of barbecue season.

Labels: civil rights, culture, military, politics

link to: 10:59 [GMT-6]

Then (HT: Making Light) there's the opposite problem: "Proponents" of fanfic who redefine the term "fanfic" to include "good" derivative works. It's a lot easier to argue that the only color you need for your new car is "black" when you redefine "black" to mean "anything except pure white"... just as it is a lot easier to argue that "self-publishing is always a sensible business plan for unpublished novelists" when you redefine "self-publishing" to include a lot of works/authors that, well, weren't involved with self-publishing as that term is understood today.

So, turning to this particular bit of hypocrisy, and assuming arguendo the characterization of the "source work" for each example is accurate (at least three of them are not or are literally correct but misleading), organized by group:

1. The first group:
   • Smiley (A Thousand Acres), Brooks (March), Larsen (Rent), and Corigliano (Ghosts of Versailles) are based on works that were long in the public domain under every conceivable measure of "public domain." Even under the French concept of droit morale, the heirs of Pierre Beaumarchais would have no claim.
   • Rodgers and Hammerstein (South Pacific) was done with authority from the creator.
   • Sondheim (Sunday in the Park With George) is a bad example legally: At the time that Sondheim did his work, New York recognized "rights of publicity" and "rights of privacy" in commercial works of fiction even less than it does now... and today, still, it does so less than virtually every other state, let alone the European Union. Then there are questions of authorization; of dealing with the dead; etc., etc., etc. In many ways, this more resembles "The Girl From Ipanema" than anything else.

   In the first innings, all six wickets are down.

2. The second group:
   • Rhys (Wide Sargasso Sea), Bernstein (West Side Story), "literally hundreds of published Jane Austen fan fiction," Gardner (Grendel), "[o]ther drastically varying fanfictions of The Phantom of the Opera," the various derivatives of Arthurian legand, the Homerian fanfic, the Aeneid, and virtually every other example in this group (except those I'm going to discuss below), are based on works that were long in the public domain under every conceivable measure of "public domain."
   • Greed (1924) was done at a time that motion pictures were not clearly separate works; the Townsend Amendment (1912), which brought film into the realm of copyright issues, was still being interpreted by the courts, as the example of the original film of The Wizard of Oz demonstrates all too clearly, and the entire concept of "derivative works" was still being developed in the crazy courts of 1920s New York.
   • Ah, Murnau (Nosferatu). That's actually a lawyer's wet dream, in many ways: There are so many arguments on both sides that it all comes down to ill-considered (and ill-translated!) statements made concerning not the conception of the film, but the financing for its production. Maybe a good example; maybe not; but it is so parallel to Stoker's Dracula that it's not fanfic. Leg before wicket.
   • Guare (Six Degrees of Separation), Zelazny (A Night in the Lonesome October), and Marlowe (The Lighthouse at the End of the World) are bad examples for much the same reason as is the Sondheim.
   • Lerner (My Fair Lady) is a much tougher case. There are elements of piracy, with echoes of the problems of Gilbert and Sullivan, in its ancestry; there are elements of multiple-source ancestry; and there is a variety of other factual and legal reasons that this isn't a good example of anything like "fanfic." Leg before wicket.
   • OK, maybe here's one: Whether it qualifies as "fanfic" or not, The Magnificent Seven raises at least arguable issues concerning authorization from Kurosawa. Damn, it's not a clean sweep.

   Through two innings, all but one (or arguably two) wickets are down.

3. The third group:
   • Parody is not fanfic. They are completely separate considerations. And whether or not one agrees with how "parody" is constrained in copyright, trademark, and publicity law, that's the law. This excludes Tina Fey's portrayals of Sarah Palin.
   • The obsession with treating "The Girl From Ipanema" and other RPF as "fanfic" continues to run rampant here, this time including Malkovich (who authorized it anyway!) and Brite (Plastic Jesus).
   • Flint (the 1632 universe), Scorsese (The Depahted), and Strange New Worlds are all authorized by the creator/rightsholder.
   • Cleolinda Jones's works are both parodies and legitimate critical commentary... and, above all, they're more nonfictional than fictional in any event.

   The final score is harder to calculate, as the second group (in particular) tried to refer to entire classes of works as if they are examples of fanfic without being very specific on what it takes to qualify for that class. One thing that I can say, though: Out of the entire list, there are only one, or possibly two, runs scored. That's just not cricket.

This only undermines arguments in favor of fanfic. Dammit, there are some arguments in favor of fanfic, and inspiration, and crossover works, and parody. But advocates don't do themselves any favors by being intellectually dishonest in redefining the terms for "debate" to their advantage. Instead, they should stick to the most-commonly-understood meaning of "fanfic" if they want to advocate it: Derivative fictional works based upon in-copyright fictional settings and characters without explicit authorization (either per-work or in general) from the creator. Arguing that an outlier demonstrates the validity of the entire core is just... stupid.

RPF (real-person fiction) is parallel to, but not the same as, fanfic. Rights of publicity and privacy sound, to the unsophisticated, as if they are direct analogs of copyright and trademark/unfair competition. They are not; historically, they don't even come close to having the same origin, either factually or doctrinally. And, on top of that, there's a huge distinction between "the real person is now dead, and therefore fair game" (but not in California or Tennessee!) and "the source work continues to exist, and may even have a continuing commercial life, but it's out of copyright and can therefore be directly exploited by others." They just aren't the same argument, and conflating them (as was done in Aja's LJ post) does nobody any good.

General references to "remixing" as supporting the "fanfic" argument are, similarly, no more helpful. For one thing, "remixing" in fictional works is a vastly different effort and enterprise from "remixing" in music; care to take a guess where most of the legal doctrine about "remixing" comes from (hint: 2Live Crew might have something to do with it)? Too, the very methods are so distinct that I don't think "remixing" of fictional works should even be called "remixing"... because the term "remix" essentially originates in the musical world and is based upon understandings of quotation, allusion, and influence that are on the one hand unique to music and on the other actually inconsistent with those understandings in fiction. "Art" is not "art" any more than "parts is parts."

Redefining the terms of debate to allude to something that can't be argued against is one of the oldest, and least reputable, fallacies:

• The following works are objectively "art" of independent merit, or at least commercial success.
• Each of those following works has substantial inspiration — sometimes being derivative works — from some other work.
• Artists should never have to obtain authorization — whether in advance or not — for unfairly competing with other artists or for drawing their inspiration from anything that comes to their attention.
• Therefore, fanfic is inherently a good thing, because fanfic also has substantial inspiration — sometimes being derivative works — from some other work, and authorization is irrelevant.

Convincing me that fanfic is inherently, and without exception, a "good thing," is going to require facts and arguments that won't be spotted as fallacious by first graders. Stomping around and saying "but that's what I want it to mean!" doesn't change reality.

Does that mean that I think fanfic is inherently evil? Not at all; as I've pointed out fairly recently, some "original works" cry so desperately for fanfic-like parodies that it seems criminal not to do so. But not all parody is fanfic; neither is it really "fanfic" for purposes of the argument over unauthorized fanfic once it has been authorized, even if it was not authorized at the time it was written.

In a literary-theoretical sense, the fanfic argument reflects the continuing battle over the definitions of "author" and "authorship" even more than it reflects intellectual property and unfair competition law. To choose the example that's raising the most ire at this moment, "Diana Gabaldon" the person is not the same thing as "Diana Gabaldon" the author (although there's considerable overlap), and "Diana Gabaldon's Outlander works" are not the same thing as either the person or the author (although there's arguably some overlap and lots of sense of ownership). And, of course, both the law and the financial aspects of the entertainment industry simply don't care about either cultural or artistic imperatives; that's not their purpose, and trying to pretend otherwise just leads to... fanfic wank. When, that is, the wankers (of both preferences) can find something to sustain themselves; I find most of the arguments (of both preferences) quite limp and incapable of arousing anyone else. They might all consider starting by erecting their arguments based on reality instead of surreality. I do my best not to let such general futility keep me from seeing exceptions, but sometimes my patience gets exhausted.

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

link to: 11:13 [GMT-6]

• Sigh. Once again, Cory Doctorow makes the mistake of assuming that what works for him necessarily works for everyone. Mr Doctorow is famous for publishing free copies of his books online as part of his publicity/promotional strategy. And that is why it can (not does, but can) work for him: It's part of a specific strategy... in a specific context. It is not, however, a universal strategy, nor does it apply to every context. For example, there's no need whatsoever for a textbook publisher to publish a free copy online as an inducement to students! (Whether textbook publishers should be doing something different with their entire model is another question indeed; but that's part of my point.)

  Another aspect of this point — one that Mr Doctorow has, seemingly, refused to acknowledge — is that the subject matter and tone of the books he releases for free on the 'net are closely related indeed to his day job. That is, he is not relying upon money earned from sales of those books for his living, and further can count on them to enhance his money-making platform. Consider, on the other hand, Scott Turow: I seriously, seriously doubt that he has ever gotten a client for his white-collar-crime defense practice (and he's a lucky man, being a partner at a BigLaw firm on a part-time basis for years) based upon his novels of Kindle County. Consider, too, Ursula K. Le Guin: Her income is almost entirely from the sales of her copyrighted works. The point is that the author's own context matters, too; and that Tim O'Reilly is full of himself when he proclaims that "the big problem [for authors/artists] isn't piracy, it's obscurity," since he has no apparent perception of the author/artist whose economic circumstances are marginal and/or slow and over time. The types of books released by O'Reilly's own firm epitomize that error: They are factual compilations with short shelf lives (useful as they often are, although I'll be happy to never see another copy/version of Designing With JavaScript), and thus least likely to be e-pirate-bait in the first place... particularly since, as they tend to involve lots and lots of source code, typographical errors typically introduced by e-pirates cannot be ignored/glided past by the reader!

  In short: The idea is not the expression; the expression is not the idea; and conflating the two leads to insupportable conclusions outside of the specific context.

• ClimateGate is an example of information warfare in action. In strategic terms, ClimateGate was an offensive use of the fog of war by combatants (the denialists, in case my sympathies are not clear) who did not have the capability (the facts, scientific doctrine, etc.) to wage a straight-up, "conventional" political fight. Authors of political thrillers — and I include people who aspire to write the next 24 in there — should keep that in mind: An out-of-power and/or "wrong" group that presents a credible threat probably isn't going to be stupid enough to engage in a frontal assault against prepared defenses, even in information-intense warfare. At least ClimateGate was over e-mails, and not waged in the pages of color-illustrated children's books, which would have been an actual climate problem. Or, as at Harvard's library system, a climate-controlled problem (that sort of links back to the preceding item).
• It's been a century since your actual death, Mr Clemens. May we publish your memoirs now? The reference to a UK-based paper for the first true giant of American letters is, by the way, entirely on purpose... and directed at the creators and perpetuators of the canon of American literature who refused/refuse to accept the mediocrity of what came before him, and too much of what came after him until the 1930s. <SARCASM> Maybe one of the reasons that high school students hate English classes so much — leaving aside the endless drill forms for Mrs Grundy's version of "proper grammar" — is that out of some sense of developing a national(istic) identity we make them read utter crap like Hawthorne (instead of Austen) and lesser crap like Whitman (instead of Tennyson). After all, if it's American, it must be more appropriate for American student to read than other stuff from across the pond... except as it relates to our Confederate legacy. Or frighteningly plausible hypothetical Judy Blume novels (damn you Scalzi, my eyes are bleeding). </SARCASM>
• A syncopated counterpoint to yesterday's item on James Frey as a class-action defendant for his memoir-fiction-thingy: fact-checking literary fiction can, indeed, be made to work... at least in theory; we'll see how it works in practice. And whether it leads to yet more author feuds, or at least more visible author feuds, when unfriends fact-check each others' works. I still think fact-checking is best done before publication.
• The Economist — a somewhat conservative magazine, but in a European sense (which means that it's not entirely about fact-free ideology) — has an interesting article comparing internet access to common carriage at sea. It's interesting as far as it goes... but it neglects a critical problem. Common carriage at sea is a relic of mercantilist economics, and only makes sense in a mercantilist context. Intellectual property resembles mercantilism more than it does post-Adam-Smith comparative advantage (I really, really will get that essay finished and posted on my SSRN page Really Soon Now). However, the telecomm companies that are making all of the complaints are creatures of post-Adam-Smith comparative advantage economics that answer to investors who know nothing but comparative advantage (and that's despite the regulated nature of their business due to the natural monopoly problem). So, in the end, that article leaves us with more questions than before we read it... although that's not necessarily a bad thing!

Labels: copyright, intellectual property, miscellany, politics, publishing

link to: 19:28 [GMT-6]

• It appears that Lord Lester — a well-known barrister who was partly responsible for fashioning the so-called "Reynolds defence" of fair comment by media — has been serious enough about reforming England's reprehensible libel law to introduce a private member's bill doing so... which, since the matter is due to be mentioned in the Queen's speech tomorrow, just might have a snowball's chance in hell of getting passed. Exactly a snowball's chance in hell.

  The problem is that it's a Private Member's Bill introduced in the House of Lords, which remains the single greatest monument to the value of reputation (and against the value of free speech) in England. That's why I give the bill as introduced a snowball's chance in hell: Regardless of party allegiance, it can — and almost certainly will — be killed by the personal interests of those who've been stung (justifiably or not) by England's press, or who fear such. It's fascinating to me that the press is more intrusive and more outlandish in nations where there is less guarantee of freedom of the press — even if often on behalf of the authorities, it's still intrusive and outlandish. One might think that if the esteemed members of that House really did value their reputations, they'd be in favor of relaxing libel laws on that basis... unless, that is, they're afraid of the results when truth becomes a complete defense.

• James Frey: First a literary "con artist" (so to speak... although I personally put most of the blame on the publisher and its S&M department), then a class-action defendant. Sometimes law professors really do try to grapple with reality. Or at least literature. Well, maybe not: The author of that piece is Canadian...

  Then, on the other hand, sometimes law professors go out on a limb with hypotheticals. (Yeah, that never happens.) I suppose there's always the chance that a law professor might write a journal article that essentially proposes creating slave AIs instead of independent ones like HAL. And that always turns out so well.

• Remember in high school when you were studying the US Constitution (if you weren't, you should still pay attention), and you tried to figure out what a "bill of attainder" was? Well, here it is. And it does matter, because ultimately what got ACORN in trouble was pissing off the Tea Partiers with its message that all is not well in America. Leaving aside the validity (or not) of the charges against ACORN regarding voter registration drives, petition drives, etc., it is impossible to foresee Congressional action being taken during the reign of George III, and under a Heffalump majority, against a pro-Tea-Party group that expended similar efforts and used similar tactics to (a) prevent them newcomers from registering to vote and/or (b) did the same thing in Appalachia... among folk of Northwest European descent.
• Professor Dorf has made some rather understated, if all too accurate, comments concerning the "real" meaning (and symbology) of "libertarianism"... and it's not a pretty picture.

  The answer, I think, is that libertarianism, like other ideologies, provides a single ready answer to all questions: Government is the problem. Communists (real communists) believe that poverty and other social ills are all the product of the exploitation of the poor by the rich; Nazis say everything is the fault of the Jews; and radical Islamists blame the social and economic problems of most Islamic societies on the ruling elite's corruption by Western culture. Of course, in 21st century America, one can hardly found a viable political movement on communism, Nazism, or radical Islam. By contrast, libertarianism is a kind of extreme form of core American values themselves. Goldwater was tapping into something authentic when he said that "extremism in the defense of liberty is no vice." Authentic but nonetheless wrong in its zeal to oversimplify.

  (emphasis in original) But then, I have a much harsher view of libertarianism, and fascism, and communism, and virtually every other political movement in history that has relied upon demonization of an Other. I could call it "simple-minded bigotry," but that, I think, understates its power and misleads as to its origin. It is, instead, magic — pure, simple, simplistic, visceral, ideological, and free of all context (and most thought). But the Mad Tea Partiers ("In This Style, 10/6") couldn't possibly be doing anything like that, since they're all from xtian 'murica, right? Well, speaking of mythological origins unsupported by facts... like "liberal" as even existing in modern US political thought...

Labels: civil rights, culture, jurisprudence, mass media, miscellany, politics

link to: 11:39 [GMT-6]

• Here's a thought: If your conglomerate has been having trouble actually selling its product at local stores under central inventory management, why not try letting local management have more control over inventory? Waterstone's — the UK chain — intends to try that. This is a hint to you, B&N and (to a slightly lesser extent) Borders: The way out of your cycle of ever-dropping same-store sales might require letting store managers do more than manage the hours of the employees... and much, much less of letting your centralized "buyers" determine what's on the shelves in every store (especially when they're careless, or not — themselves — readers of the kinds of works they're "buying").
• RIP Martin Gardner, who demonstrated once a month for many years that math is more than just something for textbooks, accountants, and structural engineers. My decade-long loss of interest in Scientific American began pretty much at the time the magazine was unable to replace him upon his retirement: Unfortunately, cloning hadn't advanced to the point where a younger version could take over.
• Instead, we ended up with Andrew Wakefield and his campaign against vaccines (fortunately, not in SciAm!), based upon dubious science and even more dubious statistical analysis. Martin Gardner's columns in the 1970s taught me enough about statistics to interest me in going further in college... which enabled me to spot problems with Wakefield's conclusions when they were first published in Lancet. They've since been withdrawn; and now Wakefield himself has been removed from the rolls of licensed physicians for the serious research misconduct behind that article. That's not going to stop the ignoramuses of the antivaccine movement, who haven't yet figured out that statistics can never prove causation... or consider that there's a good reason that post hoc, ergo propter hoc is a fallacy.
• Late-breaking news story: The NYT editorial page has finally figure out that the military academies are no longer about academic excellence. About sixty years too late, actually: Academic excellence stopped being achievable in the mid-1950s, when the words "pointy-headed" started getting put in front of "intellectual"; when the academies' strange variation on "tenure" drove away the best qualified potential instructors; when the academies' emphasis on tradition (including, but not limited to, the family tradition of attendance, generation after generation) pushed away the best and brightest of the generation; when, under DOPMA (early 1980s, responding to abuses from the Vietnam era), the academies managed to get hidden promotion advantages built into a purportedly up-or-out system; when... I won't go on.

  I no longer see a purpose for military academies as undergraduate institutions. Once upon a time — the early and mid-nineteenth century — there simply weren't enough college graduates from which to draw an officer pool in the first place... and there simply wasn't enough exposure to military history and issues outside of the specialized military community to serve that purpose, either. No more; at least since the explosion of studenthood with the GI Bill, there have been enough college graduates to create an effective officer corps for all three/four/five services. Instead, the academies should become a postgraduate system: A six- to nine-month course for officers (who have earned real degrees in real subjects from real schools prior to their commissions... not to mention having had real contact as adults with the kinds of people they'll need to be ready to lead during their college years) as their first active-duty assignments, and perhaps some recentralization of later professional military education to those campuses. Sort of like real research universities — the one aspect of American education that really does work, and work well (OK, there are some ways it could be improved, but I don't think anyone proposes throwing out the research university model and starting over).

• This just in: The Supreme Court has unanimously held, in American Needle, Inc. v. National Football League, No. 08–661, that the NFL's claim that it is a "single entity" — instead of a collective of thirty-two teams with an appended administrative apparatus — does not exempt the NFL from antitrust scrutiny under the Sherman Act for conspiring to restrain trade. In this instance, American Needle was a former nonexclusive licensee for NFL/team-logo-containing products whose license was not renewed when the NFL went to an exclusive-licensee system in 2000. As the Court puts it:

  Football teams that need to cooperate are not trapped by antitrust law. "[T]he special characteristics of this industry may provide a justification" for many kinds of agreements. The fact that NFL teams share an interest in making the entire league successful and profitable, and that they must cooperate in the production and scheduling of games, provides a perfectly sensible justification for making a host of collective decisions. But the conduct at issue in this case is still concerted activity under the Sherman Act that is subject to § 1 analysis.

  When "restraints on competition are essential if the product is to be available at all," per se rules of illegality are inapplicable, and instead the restraint must be judged according to the flexible Rule of Reason. In such instances, the agreement is likely to survive the Rule of Reason. "Joint ventures and other cooperative arrangements are also not usually unlawful… where the agreement … is necessary to market the product at all." And depending upon the concerted activity in question, the Rule of Reason may not require a detailed analysis; it "can sometimes be applied in the twinkling of an eye."

  slip op. at 18–19 (citations and footnote omitted). I'll have more on this later on, but it's a sensible interpretation of both antitrust law and the reality of the competitive market... insofar as "sensible" has a damned thing to do with exclusive sport licensing agreements, particularly after NCAA v. Board of Regents of Univ. of Okla., 468 U.S. 85 (1984).

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

link to: 12:49 [GMT-6]

• Education shock horror: the American education system doesn't teach even the "best and brightest" how to write. I look at this from the opposite point of view: The difficulty is not with grading and/or feedback; it's that the curriculum doesn't have students reading the good stuff, largely because the good stuff is politically controversial. For example, high school students encounter Orwell's essays — if at all — in college prep classes their senior year, or perhaps the junior year in honors classes. If you want to learn how to write an essay, you can't go far wrong by dissecting "Shooting an Elephant," or "A Hanging," or "My Country Right or Left." But Orwell was a socialist, a furriner, and not an evangelical xtian... so his work doesn't make it into the standard curriculum. Instead, we get second- and third-rate stuff used as exemplars. That's like trying to teach piano using Carl Czerny's teaching exercises as the only example of what the final product is supposed to look/sound like.

  Of course, it doesn't help that we won't send good writers to work in high schools, or keep them there. Too often, the teachers doing the grading are not really competent to do so... especially if there isn't a publisher-provided answer key.

• Here's an interesting counterpoint on the purported "liberalism" and "radicalism" of law school faculties, arguing that law professors tend to be more conservative than the rest of the university. This is at least in part because tenure requirements are different: Synthesis — including new synthesis of existing material — is an acceptable foundation for writings leading to tenure at a law school, but not in the engineering or arts and sciences faculties (which require "original research," whatever the hell that is in, for example, literature!). In turn, that distortion in the tenure system has led a great many faculty in the rest of the university to engage in hyperbole and experimental criticism, because it qualified as "original."

  Then, too, the reputation of universities as "radical institutions" has always been overblown. But that's for another time... or at least another forum.

• From the department of bureaucrats with nothing better to do: New Jersey rejects biochemist's BIOCH license plate as "obscene" while still allowing specialty plates for encouraging violations of the U.S. Constitution.
• Another law professor advocates abolishing A Uniform System of Citation (17th ed.) (aka the Blue Book) in favor of a simplified system. Professor Somin doesn't go nearly far enough, though: Even the "simplified" Maroon Book continues to use the same, inefficient, misleading meme: volume-source-page (maybe date).
• Professor Picker muses on marking, razor blades, catalogs, and the public domain. That I find this stuff interesting says more about me than you probably want to know.
• The IP Finance blog discusses the impact of the endowment effect on valuing intellectual property... and vastly, vastly understates its conclusion. All that one needs to do to understand the impact of the endowment effect on the valuation of intellectual property is look at the inflated valuation (and ego) apparent in tax deductions taken for creating depositories of "papers"... and the willingness of repositories to play their part in the game. And perhaps — just perhaps — actually represent an individual infringement plaintiff and do a client-screening interview or three. Ironically, in this particular instance anecdotal evidence is more persuasive (and valid) than statistical manipulations!

Labels: copyright, culture, intellectual property, miscellany, politics

link to: 11:23 [GMT-6]

• Such a sad, sad story: Megan Fox will not be appearing in Transformers 3 because she couldn't keep her mouth shut about how much it sucked, both as a film and as a working environment. Ms Finke continues on to excoriate Shia LaBouef for much the same thing (but regarding a different film) without ever noting the ultimate problem: Actors do bad jobs with bad scripts. When even as unskilled an actor as Megan Fox complains about it, somebody should consider replacing the screenwriter first — perhaps along with the actor, but certainly at the same time. Getting a competent director might not hurt, either... even for material as mindless as Transformers. And sometimes, even directors who are competent at one type of film have to recognize their limitations; over the years, Spielberg has demonstrated that his ability to control pacing and perspective fits slower-paced films much better than faster-paced ones.

  Yeah, they're all egotistical and overly impressed with their own roles in the process... and not willing to look at the foundation for their roles. Although there are a very, very few instances of a silk purse made out of a sow's ear, and a disturbingly large number of instances of making a patchwork leather pouch (with lots of holes in it) starting from fine silk, the probability of getting a silk purse goes up quite a bit when one uses silk as one's basic material. That's news in Hollywood, right?

• In an effort to avoid cultural irrelevance (and a terminal "Th-th-th-th-th-that's all, folks!"), Warner is producing new Looney Toons material for Cartoon Network. Do I sense the possibility of Acme Internet Search Engine and an official Facebook page for Bugs Bunny? Or will Elmer Fudd become an official 'net spokesperson for the NRA (as if he isn't already)? Foghorn Leghorn Meets Don Tyson?
• Jay Lake muses on monocultures and unintended consequences as flaws in worldbuilding. I agree with him, and think that he goes not nearly far enough; for example, what does imposing a Napoleonic naval command structure on "space navies" say about the ability of Able Spaceman Spiff to actually repair his high-tech yardarms? These flaws, however, reflect a more fundamental misunderstanding of the scientific method and how to solve algebraic equations... especially in fantasy.

  There is no situation in which life's lack of controls, impure reagents, and inconsistent lab technique does not produce unexpected — indeed, dominant — results. To put it another way, the real world — and, in particular, the real world that is wide enough to produce setting, character, and motivation for a story — is not a nice, clean set of just enough equations to isolate each variable in turn. The command structures of wooden ships and iron men just doesn't work so well when the ships are made out of iron... let alone out of unobtanium alloys. And, conversely, one cannot impose such a command structure on a society that posits that even the drones stoking the space-cannon are well-educated and -trained enough to survive in space (the second-most-hostile environment yet encountered by humanity¹), let alone do highly technical jobs in space; the drones aren't going to put up with rum, sodomy, and the lash as their basic social structure while stuffed in their various tin cans. Hell, all anyone needed to do was take a look at the distinctive disciplinary problems of the all-volunteer force after the end of the draft... and then consider who ended up being drafted in the first place.

  In many ways, it gets even worse with fantasy. If magic (in whatever form it takes) is powerful enough to influence society, it is going to influence society; and if it is not powerful enough to influence society, its mere possibility will still do so. Remember, among his contemporaries, Newton was first (and perhaps best) known for his inquiries into alchemy, not into mechanics, and his fame among his contemporaries never really reached the level of John Dee's. So, if there's a means of violating the fundamental laws of thermodynamics and applying energy to human problems without apparent input of such energy, there will be social consequences... perhaps a draft, followed by working in fields to support preindustrial food production, rather than a William Morrisish stint at an unspeakably luxurious wizard's school.

• Professor Boyden muses a little more on fan fiction, unfortunately undercutting his point a bit by concentrating solely upon copyright law in his legal analysis... but using the language of allusion in his descriptions, which in turn is more like an entirely different kind of misbegotten fantasy "retelling" that would be a vast improvement over most fanfic. (Hell, it would be a vast improvement over way too much commercially published fiction, but that's an argument for another time.)

  My point is not that fan fiction has nothing whatsoever to do with copyright, nor that trademark/unfair competition analysis (e.g., Restatement (3d) of the Law of Unfair Competition § 25 — unfortunately, there's no online version that I've found satisfactory that is not behind a paywall) must predominate. Instead, it's somewhere in the middle... but unfair competition probably provides a better, or at least more coherent, starting point than does copyright law.

• As a Yank, I didn't get to vote in the recent UK elections. (Well, duuuuuh.) As a Yank, though, I'm going to see a heavy impact from the UK elections. The biggest danger of an outright Tory victory would have been the shelving of any realistic chance of reforming England's repulsive libel law, as too many public school old boys (and those who want their children to be public school old boys, regardless of gender) view the UK's libel law as the only means they have of restraining the less salubrious elements of England's press. (Curious how the US doesn't really have those same elements, despite our less-favorable-to-plaintiffs libel laws...) Fortunately, it appears that the Liberal-Democrat influence on the governing coalition will produce at least some efforts toward libel reform... by keeping the bill as a private members' bill, not an official government effort.

  As of yet, there are frustratingly few specifics. And they matter to those outside the UK, due to the UK courts' historical willingness to assert jurisdiction over imported publications (such as 23 copies bought over the 'net)... and the unwillingness of US courts to raise the bullshit flag over it, despite the dubious choice of law issues involved that appear to violate both international norms and the European Union's own fundamental law — both of which allow a nation to have legal frameworks to protect reputation, but only as exceptions to a general freedom of expression. Unfortunately, UK libel law, as it stands now is exactly backwards: Freedom of expression is an exception to protection of reputation.

• Laura Anne Gilman describes some of the numbers that go along with charge cards when one pays on credit. Of course, there's another issue lurking behind all of this: The tyranny of quantized units of billing and time, which doesn't match up all that well with the nonquantized version that freelancers (and solo practitioners!) live under. Her general advice, though — pay it off as soon as you can, or you'll be foregoing more opportunities later — makes a great deal of sense for most people.

1. The most hostile being, of course, high school.

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

link to: 11:33 [GMT-6]

• There's an aphorism that the reason clichés exist is that they have a basis in truth. It would be interesting to run that aphorism through the same analysis as this consideration of misunderstood sayings... particularly as the principle example is based on a bad, out-of-context translation (the quoted discussion does not go nearly far enough).
• It's bad enough to have investments in film futures hanging around; it's a good thing that nobody does the same for books... primarily because there isn't enough capitalization per issue.
• B&N has announced availability of a "new" self-publishing platform this summer. There really isn't very much new about it: It appears to be just a slicker interface for converting documents to the ePub format, combined with a secondary interface to make those documents available for sale to others. One wonders how quickly the pirates are going to try to use this platform to make some money from their pirated copies... or, more importantly, if PutIt will respect territorial rights, or allow those whose rights are infringed by material made available through PubIt to block the material (n.b. it does not appear that PubIt will qualify for a DMCA safe harbor...).
• Songwriters in Canada have been seeking compensation for clips from their works. Not so fast, said Canada's Federal Court of Appeal. Keep in mind, though, that this has nothing to do with Canadian works played in the US, or US works played in Canada, or anything outside of Canada, or — and this is where the blogosphere and IWTBF crowd is going to screw up — fair use under US copyright law. Instead, this concerns "fair dealing" under Canadian law, which is analogous to fair use... but isn't really all that close in substance once one begins unpacking the terms.
• SFWA President-elect Scalzi, aka "The Baconator", muses on why "punishing the publisher" doesn't work. And, of course, it works even less for other distributed forms of entertainment — film, music, TV. Applying this principle to other commercial boycotts is left as an exercise for the student... and for antitrust specialists.

  What Scalzi never reaches, though, is a more-important question: Should "punishing the publisher" work? If so, why? And, if not, what method(s) may the public use to control abusive economic behavior by publishers (and film studios, and record companies, and TV networks)?

Labels: copyright, culture, internet, mass media, miscellany, publishing

link to: 18:18 [GMT-6]

• From the department of goofy search engine results: Google considers "cougar dating" inconsistent with "family safe search results".
• Meanwhile, in a bit of offhand commentary that will make any scientist cringe, a Grauniad style writer claims that

  There is much that one can hope for from this alliance: a new way of politics, non-primary coloured ties. But so far, those ties remain decidedly primary-coloured and the compromises just seem to put everyone in a bad mood. Do blue and yellow even go together well?

  Where to start: Nicholas Clegg's tie is gold, not yellow, if one can trust the accompanying photo. More importantly, though, yellow is not a primary color. Yellow is a primary pigment; the primary colors are (as anyone who has looked at the basic settings on their monitors or taken high-school biology knows) red, blue, and green. Color is refractive; pigment is reflective; and they aren't the same... even in the fashion world.

• Congratulations to the recipients of the Nebula Awards for best science fiction/fantasy works published in 2009, selected and awarded by vote of the members of the Science Fiction and Fantasy Writers of America, Inc.:
  • Novel (over 40k words): Paolo Bacigalupi, The Windup Girl
  • Novella (17.5k-40k words): (the late) Kage Baker, The Women of Nell Gwynne's
  • Novelette (7.5k-17.5k words): Eugie Foster, "Sinner, Baker, Fabulist, Priest; Red Mask, Black Mask, Gentleman, Beast"
  • Short Story (under 7.5k words): Kij Johnson, "Spar"
  • Bradbury (dramatic presentation): Neill Blomkamp et al., District 9
  • Norton (book-length fiction for children/teen/YA audience): Catherynne M. Valente, The Girl Who Circumnavigated Fairyland In A Ship Of Her Own Making

  Of some interest, not one of the winning works was published by a media conglomerate (or, in the case of the dramatic presentation, produced "in Hollywood").

  And further congratulations to the new elected officers, whose sentences begin who will take office on 01 July:

  • President: John Scalzi
  • Vice President: Mary Robinette Kowal
  • Secretary: Robert J. Howe
  • Treasurer: Amy Casil Sterling
  • Overseas Regional Director: Sean Williams
  • South-Central Regional Director: Lee Martindale

  For anyone wondering, the contest for Canadian Regional Director ended in a tie and is still being resolved.

• Professor Buchanan offers another pithy indictment of of a group known to take advantage of authors (and everyone else).

Labels: arts, internet, miscellany, politics, publishing

link to: 10:38 [GMT-6]

That's not exactly breaking news anymore; I'm sure that /. has ten thousand or so rants claiming that this will be the end of civilization because Judge Wood wants to keep the peeps from gettin' their free tunes. Finding liability isn't too hard — it's almost compelled after Grokster. Note to filesharers: Post hoc rationalizations that there really, really was a legitimate use for that set of lockpicks aren't very convincing. Instead, the legitimate use needs to be contemplated and designed in from the start; and you need to operate your business from day one as if that's your expectation. Even then, you might not get anywhere, but you've got a better chance than if you dare people to sue you.²

The interesting part, though, is buried late in the opinion (PDF), where Judge Wood finds the founder/proprietor personally liable despite his attempts to weave in multiple layers and means of corporate structures to shield himself.

Gorton is the sole Director of LW. From 2000 to the end of 2006, Gorton was LW's CEO. Gorton is also the CEO and sole Director of Lime Group. Gorton owns 100% of Lime Group. Until June 2005, Lime Group owned an 87% share of LW.

The Court has already found that LW is liable for inducement of infringement, common law copyright infringement, and unfair competition. The evidence establishes that Gorton directed and benefited from many of the activities that gave rise to LW’s liability. In his deposition, Gorton testified that, as CEO, he "ran" LW. LW's former Chief Operating Officer stated that Gorton was the company’s "ultimate decisionmaker," and that his approval was required for "any major strategic and design decisions." Another LW employee stated that Gorton had the authority to "veto" decisions regarding the development of LimeWire.

Gorton directed and approved many aspects of LimeWire’s design and development. Gorton admits that he conceived of LimeWire and decided that the program should be decentralized and should use P2P technology. Gorton oversaw the development of LimeWire’s filtering system, and decided that the filter should be turned "off" by default. Gorton conceived of and was heavily involved in developing the Conversion Plan. He represented LW in negotiations with the recording industry over the Conversion Plan and over plans that the industry proposed for filtering infringing content. Gorton made decisions regarding LW’s public relations and advertising efforts, and was involved in discussions about marketing LimeWire to Napster users. This evidence, taken together, also establishes that Gorton knew about the infringement being committed through LimeWire.

The evidence further shows that Lime Group was intimately involved in LW's operations. Gorton was CEO of both LW and Lime Group. While LW and Lime Group are formally separate companies, the evidence establishes that Gorton operated them "as a single company." Lime Group and LW share offices, computer services, and support staff. Employees moved between Lime Group and LW without changing titles or job responsibilities. Lime Group employees developed much of LimeWire's original technology, and then provided systems administration support for LimeWire and developed user guides, FAQ guides, and merchandising for the program. Lime Group provides numerous services to LW, including managing LW's financial operations and employee benefits; hiring LW employees; and performing investor relations, public relations, and customer support functions for LW.

As the majority owner of LW until 2005, Lime Group directly benefited from LW's inducement of infringement through LimeWire, which drove the company’s success. Because he owned 100% of Lime Group, Gorton indirectly owned a majority share of LW, and thus also benefited from LW's infringing conduct.

As a result of the actions and benefits described above, Lime Group and Gorton are liable for LW’s inducement of infringement.

Arista Records, llc v. Lime Group, llc, No. 06 CV 5936 (KMW) (10 May 2010), slip op. at 53–55 (citations and footnote omitted). In other words, the mere fact of incorporation isn't enough to insulate you from personal liability; you must act like a corporation, too, including respecting corporate formalities. You can't run your pirate operation as the captain of the ship and then expect your ship's flag-of-convenience registration to shield you from all personal responsibility.

Arrrrrrrrrgh!

This litigation has also led to two other, perhaps more disquieting, notions. First of all, it might be slightly unfair to Gorton (and his company) to use the "pirate" images for them, as there doesn't seem to be much (if any) evidence that they personally pirated music. Instead, it appears that Gorton was, perhaps, more the mayor/chief proprietor of Port Royal. Nonetheless, I can't help it; the community itself invites the pirate ship comparison...

Second, the WSJ has started/perpetuated some disquieting interpretations concerning advice that an EFF counsel may (or may not) have provided concerning document retention (see also pages 13 to 16 of the slip opinion — context matters). I seriously doubt that Mr von Lohman exceeded the (loose) limits of what legal ethics allowed — perhaps required — him to do. I have a great deal of disdain for the substance of some (not all!) of the EFF's positions; I also think that EFF's public statements, and even legal filings, on occasion distort both the facts and legal authority (but certainly no more than EFF's BigLaw opponents tend to do), and usually succumb to a distressing tendency to treat any regulation of anything having to do with electronic communications as the beginning of the end of civilization (reading position papers and briefs will reveal that that characterization is not hyperbole... even if the position papers and briefs are). However, my interactions with Mr von Lohman over the years do not provide any support for implications that he acted improperly. Perhaps advising a pirate operation on document retention was unwise... but none of us were in the room, so

• we don't actually know what was asked of him in the first place
• nor its context
• nor what he actually advised
• let alone what the defendant(s) actually did with any advice he provided
• or whether (as seems more likely based on the passage quoted above) the defendant(s) asked a question on a legitimate concern and then applied the answer in a different way in furtherance of unlawful purposes.

Further, the WSJ blog post completely neglects that users (and the defendants) had some legitimate privacy concerns — even duties — that would have resulted in discussing "document retention policies" at some point. This, I think, is more an instance of a corporate-sponsored blogger unconsciously (or perhaps even consciously) choosing to emphasize a possible smear against an anticorporate activist. Bluntly, Judge Wood's opinion simply does not support the interpretation that the blogger put on it; it does not refute it, either, but then Mr von Lohman is at best a peripheral figure in this entire matter.

1. As an interesting aside, Judge Wood also sentenced Michael Milken and rejected most of his pleas for leniency. I suspect she has little sympathy for the captain of a pirate ship...
2. Yes, I knew about this. Hell, I've got one of the "sue me" responses to a DMCA notice. You just don't go swimming in shark-infested waters after dumping a gallon of blood in, ya know?

Labels: copyright, intellectual property, internet, jurisprudence

link to: 13:38 [GMT-6]

• The lovely and talented Sarah Weinman implicates some of the problems with the "publishing press" in her usual polite style. I would not be so polite: I would, instead, argue that at least half of the "reporters" on her list (by name, no less) are victims/willing participants/perpetrators of "private-sector agency capture" no different in effect from securities-rating agencies, if admittedly with less catastrophic consequences for the economy as a whole. Of course, this is far from new in entertainment reporting: There are some reviewer-whores willing to give positive blurbs for imaginary works, just to ensure continued access to the shrimp appetizers at prerelease parties. (You know who you are... if you have any shame, that is, which now that I think about it seems quite unlikely.)
• If you really want to save money in school systems, I guess you need to cut the heart out of the one aspect of elementary-school academics that benefits all students. No, they're not going to get rid of organized sports in high schools (or cheerleading), or do anything to improve the competence of teachers, or get rid of administrative bloat; they're going to do everything in their power to reinforce the possibility of graduating (if the Chicago schools can ordinarily be said to "graduate" anyone) classes full of Ugly Americans. Epic Education Fail.
• The US isn't the only nation with manufacturing-clause problems in publishing (or, for that matter, in TV). It seems to me that an aggressive reading of NAFTA should already have solved this problem, and reflects rather unfavorably on the preceding item. But then, I worked pretty extensively with (and commanded) Canadian NORAD personnel in the 1980s, so I know more than a bit about reserved-for-Francophone promotions and the resentment they cause...
• In a fascinating example of what happens when you ask the question of the wrong person while ignoring the elephant in the room, a litigation conference at Duke demonstrates that the conference organizers didn't invite a necessary speaker. A plaintiff's counsel indicated that a lot of discovery and other litigation costs were the result of corporate-defendant intransigience, and actually cost less than the corporate defense bar claims. Conversely, a representative of corporate general counsel denied those claims. A federal judge said that both sides are sometimes right and sometimes wrong.

  The insurance bar was, apparently, not represented. And, bluntly, it's not in-house corporate counsel who are the problem with discovery requests (well, at least not all that often, outside of employment discrimination suits); it's outside counsel paid for and directed by insurers who cause the discovery problems at least 90% of the time. There's a very simple reason for that: Insurance defense counsel's interest is in prolonging and driving up the costs of litigation, because (due to the accounting rules surrounding insurance) delays and costs are fully deductible costs of doing business... and the loss reserve previously established is so seldom exceeded that the interest and investment income earned through delay often equals or exceeds the costs to the insurer. If you really want to see what effect that has on major litigation, just compare the pathways of asbestos litigation for post-bankruptcy firms (who could not obtain insurance covering many pre-bankruptcy events) and firms that did not go through bankruptcy (who were covered by insurance).

  Insurance — that is, the risk-spreading function of insurance — is necessary, both economically and ethically. The insurance industry as it has developed, however, is another issue entirely.

• There has been a wide range of critical reactions to Iron Man 2 that largely reflects critical ignorance. Almost all of them are treating Iron Man 2 as if it is a natural "sequel" to Iron Man... and that's true only insofar as there are quite a few characters in common between the films. Structurally, though, Iron Man is an origin story; Iron Man 2 is the first in a sequence that occurs after the origin story, and not a "sequel" to the origin story. That is, Iron Man is The Hobbit (or Silmarilion) to Iron Man 2's The Fellowship of the Ring; and so one needs to look at Iron Man 2 as the first in a series/trilogy, not the second. Were critics willing (and able!) to do so, I think the reviews of Iron Man 2 would have been more popular. That, however, would require some actual education in literary and artistic criticism that does not view film as the be-all and end-all of film.

  Perhaps the biggest mistake was the title. In this age, putting a numeral behind a title brings along not baggage, but a bloody rented trailer.

• Neil Gaiman tries to do right by libraries and gets pilloried for it by people who don't understand how government budgets work. Hell, I went through this all the time in August and September in the 1980s and 1990s: Conversion of O&M funds (which disappeared at the end of the fiscal year on 30 September) to capital improvement funds (which didn't) for things like painting the barracks, adding a barbecue pit out back of the barracks to discourage the teenagers from trying to grill in their rooms, and so on. And, of course, Mr Gaiman is too modest to discuss in detail all of the things he's done for no fee (and, often, no expense reimbursement, either) for libraries over the years: This particular "speaking fee" isn't even particularly large for a single event, let alone for his years of support.

Labels: arts, culture, law practice, mass media, miscellany, politics, publishing

link to: 11:05 [GMT-6]

• Remember the old aphorism "don't judge a book by its cover"? In a shocking, shocking bit of news, The Observer (London) has discovered that whatever one does discern from a book's cover doesn't even cross borders, let alone editions.

  I snorted some coffee as the various designers offered up their rationalizations. There's actually a historical-legal reason for the differences, based on the dark days of the 1909 Copyright Act (for distinguishing the US from everyone else) and the copyright doctrine of translator ownership for the rest. Under the 1909 Act, books needed to be printed in the US, or the copyright would be forfeited (§ 16); a different cover was a helpful tool. And keep in mind that most alternate editions of books in Europe required translation, meaning that there was another copyright added. Conversely, recorded music is almost never "dubbed", and recorded film has been dubbed much less often since sales of copies to individual consumers became a commercial routine.

• There are lots of stories intertwined around a single theme over the last several days: What is the appropriate means for an individual musician/filmmaker/author/artist to get his/her/their/its work to the listener/reader/viewer... and get paid? Charlie Stross continues his incredibly useful Common Misconceptions About Publishing series with a look at e-books, while some musicians are engaging in capital disintermediation (which sounds like an increasingly good idea in the face of live music ticket surcharges... until one accepts that such surcharges are coming to a webstore near you...). The film industry doesn't have it much better, as it is also in the midst of yet another format transition for consumer copies at the same time as supposedly 3D TVs are on their way to market. Meanwhile, yet another newspaper has discovered that "the arts wallow in unoriginality all the time."
• Yet more historicolinguistic originalism proclaims that English has become a global language by erasing its roots. Guys, this isn't the first time this has happened: Morse Code and telegraphic English similarly simplified structures and spellings a century and a half ago at the same time as non-English-speaking Europe was busy ensuring that whatever financial benefits it was obtaining from its colonies were not going toward developing coherent domestic economies. Letter- and digraph-frequency tables employed by cryptanalysts distinguished between "telegraphic" and "written" (or sometimes "standard") English, and to a lesser extent German and French. In contemporary terms, I suspect that the hyperpostmodern computerized equivalents have "twitter" settings.

  The author then spends the remaining two-thirds of the article backing away from the implications. That backing away, though, is at least a worthwhile retreat — toward a more-tenable position. Sadly, the path of that retreat was eminently predictable in the 1970s; all you needed to do was read some science fiction from the 1960s. But at least it isn't some flavor of C (which is a virus).

• There's an informative view of the ownership and control of copyrights, patents, and other intellectual property at the IPKat, divided (like Gaul... or, perhaps, gall) into three parts: 1 2 3. Those of you who have been paying attention over the years should note that there's a conflict of laws issue here for copyright law, thanks to the inept work for hire doctrine in the US: Who owns the copyright in a work created in the UK by a UK citizen, "for" a US employer, when there is no written employment agreement (or the written employment agreement does not clearly place ownership with one party or the other)?
• Congratulations to General Kagan on her nomination to the Supreme Court. She would not have been my first choice; but she's probably a confirmable choice, and she's certainly not a GWB nominee. Then again, I'm not the President, so who the hell cares who my first choice would have been?

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

link to: 13:05 [GMT-6]

• Professor Bainbridge proves that there's at least one true conservative out there who understands that torture isn't a good policy for dealing with terrorists.

  I am unaware of any experienced, highly competent frontline interrogator who thinks torture is a viable policy option — for any detainee, let alone American citizens arrested on US soil. Instead, advocates of torture are almost uniformly end-users of sanitized information — if even that. I can ignore the moral side of the argument (which only reinforces my conclusion), because torture doesn't get people to tell the truth: It gets people to say what they believe will stop the pain. (Disturbing side issue: Think, for a moment, about the terminally ill in pain who request assistance in ending the pain.) Sometimes that includes giving up the information that the interrogator seems to want… but it has little, if any, reliability attached to it. Indeed, the more valuable the information a torture victim likely has, the more likely that torture victim is to know how to make the result of torture (the talking) meaningless by lying, or by submitting to compartmentalization of information (highly restricted "need to know")… or to be a tool for misinformation by sleazeballs who care more for ideology than for the people under their leadership.

  I won't deny that torture can be a useful operant conditioning tool to influence the future behavior of an individual; even that, though, takes considerable time and skill, and has a far-from-certain result. (Remember, I'm ignoring the moral issue for the moment; not all "useful tools" should ever get used.) Instead, though, we've got centuries of proof that torture doesn't work to get accurate information — witch trials and other forms of Inquisition are only the tip of a very large, jagged iceberg. Now, what was that aphorism about the definition of "insanity" being "doing the same thing repeatedly and expecting a different result"?

• Professor Buchanan seriously understates the problems with being an expensive American. It's a short, pithy blawg entry.
• Plundering cultural objects from conquered and other foreign territories: it's tradition (so it must be ok, right?), or just another cause for controversy and historical revisionism? Now throw in the problem that many of the purported current custodians of some dead cultures were actually sworn enemies of the producers of those cultural artifacts, or even conquerors and interlopers themselves (to name three: Greece/Macedonia, Tehran/southern Persia, tribal North Africa/Carthage).

  And, of course, it gets even worse when considering cultural appropriation of intellectual property. Consider the layers of conflict in "Wimoweh," from tribal chant to conquering tribal chant to colonial appropriation and resettlement to Western folk adaptation to Disney film... to postcolonial injunction by a government led (primarily) by descendants of the traditional enemies of the originating tribe(s). Consider the layers of misrepresentation around "Spartan," from dippy high-school (and college — it's a Big Ten team, I can make fun of them if I want!) mascots to 300; or, for that matter, the evolution of Trojans from sheltering Paris to college mascot to bits of latex. The less said about fashion (e.g., the "African" fashion and "tribal dress" adopted by some of the quasinativist-whateverthehelltheyare movements and epitomized by Kwanzaa "decorations"), the better.

• Low stakes leading to vicious fights is no surprise, particularly among literati and intellectuals.

  In this instance, though, the book reviewer himself blew it and demonstrated that he doesn't know what he's talking about on a rather critical point (as did the author of the book in question). Dammit, there's reason that it's improper to refer to Ramadan's totalitarian-Islamic philosophical/cultural constructs as fascist: Fascism is by definition a nationalist, nonsectarian political philosophy… and Ramadan's drivel is anything but either nationalist or nonsectarian! Then, too, Ramadan explicitly relies upon using formal, parallel religious and political power structures to ensure compliance with his philosophical imperatives, and fascism does not accept that there is any legitimate source of power but the state. This feeds back into the preceding item, too, because much of the criticism depends upon drawing boundaries, and claiming not just that standing on a piece of land lying, say, 15.8km due west of the center of Maastricht is not only in Belgium now, but always has been in Belgium (which is itself an interesting agglomeration of Flemish, Walloon, etc. — especially in the area west of Maastricht); nobody with any thoughts of "Burgundy" need apply.

  On the other hand, the reviewer correctly characterizes fascism as "the f-word" in modern political discourse, particularly among those who don't know what it is. Anyone who remembers the US's misadventures in Central America in the 1970s and 1980s might recall another f-word: Falangista (or, academicized, phalangist/falangist). The entire argument closely resembles "the Jewish state" and "the Christian west" and "greater Islam," by pretending that the generic label necessarily encompasses all of the philosophies of the subsets. Yeah, I can see Mr Ramadan getting along with Messrs Tamerlane and Saladin really well; can't you?

• It's really too bad that this item is only satire from The Onion. I guess I'll have to satisfy my evil proclivities by quoting the opening of Cohen v. California, 403 U.S. 15, 16–17 (1971) (footnote omitted):

  Appellant Paul Robert Cohen was convicted in the Los Angeles Municipal Court of violating that part of California Penal Code § 415 which prohibits "maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person … by … offensive conduct…." He was given 30 days' imprisonment. The facts upon which his conviction rests are detailed in the opinion of the Court of Appeal of California, Second Appellate District, as follows:

  "On April 26, 1968, the defendant was observed in the Los Angeles County Courthouse in the corridor outside of division 20 of the municipal court wearing a jacket bearing the words 'Fuck the Draft' which were plainly visible. There were women and children present in the corridor. The defendant was arrested. The defendant testified that he wore the jacket knowing that the words were on the jacket as a means of informing the public of the depth of his feelings against the Vietnam War and the draft."

  "The defendant did not engage in, nor threaten to engage in, nor did anyone as the result of his conduct in fact commit or threaten to commit any act of violence. The defendant did not make any loud or unusual noise, nor was there any evidence that he uttered any sound prior to his arrest."

• Kristine Katherine Rusch closes out her musings on online networking for freelance writers with a sort-of bang:

  That's how we all dream online networking should work. We make our presence known and we get a positive response, one that will help our business in good ways. Often, however, we have no idea whether or not the networking helped at all.

  As writer Patrick Alan writes, "That’s the thing about networking. Sometimes you use it, but have no idea if it does anything. It's like pressing the sidewalk button. You press it, but then wait. And you don’t know if it’s still on the same cycle and would have turned to 'walk' anyway or if pushing the button sped anything up."

  It's only a sort-of bang, to me, because it doesn't grasp at an aspect of networking and the internet that is of interest to me. In an only slight twist on an old internet meme, it is this:

  On the internet, nobody knows you're anything; even more than print publishing, there is no "monopolizing local pub" on the internet.

  The key point is that people do make enemies, both in person and on the 'net. On the 'net, though, even the most poisonous and dishonest of personalities can find an accessible community in which they are accepted — at least for a while — without having to move. It's not even anonymity/pseudonymity that matters (although some 'netizens do maintain such, even if only for a while or only for professional reasons); it's the lack of a there there. Having grown up on a poisonously antiintellectual island of lower-middle-class hate surrounded by unreachable opportunities, I can appreciate that. For every school atrocity caused by disaffected kids who met up only over the 'net, there are probably at least a dozen atrocities averted by the ability of disaffected kids to have some safe social interaction via the 'net. And it's not just the kids who are stuck living with their parents, either; sometimes parental mobility is equally inhibited by the kids, or by the availability of healthcare, or by a hated day job that nonetheless pays the bills, or by disability.

  And that doesn't even begin to touch on the relationship between online networking and online research, especially for those writers who don't have access to local public libraries as excellent as the one I have. Research is about more than finding data; it's about putting that data in some kind of context, and there's no better way to find elusive context answers than via online networking. Perhaps if we'd had the equivalent of online networking, Hiroshima and Nagasaki might have been spared… but that's for another time.

Labels: civil rights, culture, internet, jurisprudence, politics

link to: 12:38 [GMT-6]

1. Almost everything spewed forth in public about the legal status of fanfic — on both sides — is wrong.

There is no one legal theory that covers this area¹; there is no one set of national laws that covers this area; there is no perfect defense that covers this area; there is no bloody moral or legal high ground anywhere in this fetid swamp. There isn't even a resort to "common courtesy" as a default condition that somehow occupies the moral high ground, because some works so desperately deserve vicious parody via fanfic (I'm thinking specifically, but not only, of a certain notorious, pseudonymous "creation" and purported gedankenexperiment that I will resort to Wikipedia to identify) that even if a piece of fanfic "crossed the line" it would still, nonetheless, be morally — and perhaps even legally, if the lawyers were good enough! — justified.

Part of the problem is that the law is incredibly unclear on this. Copyright law may, or may not, cover it; trademark and unfair competition law may, or may not, cover it; and the ultimate problem is that everyone wants a proscriptive rule to argue about, when the inquiry is inherently fact-and-circumstance specific. The better (but not compelling and not universal) position is that fanfic that is "close enough" to be recognizable fanfic potentially infringes the original under both copyright and trademark/unfair competition rubrics, but may have some significant defenses available. The better (and probably compelling, but certainly not universal) position is that the parody/satire of works needs to have a completely new theoretical and actual rubric created for it that is not susceptible to post hoc rationalizations... or, at least, not as susceptible.²

For those of you who resort to "it's fair use!" as your default argument concerning fanfic, remember one simple thing about fair use: This particular castle rests on the sand (or, rather, swamp) of law developed around nonfictional works. Even the decisions that seemed to come closest to approval of fair use as a foundation for fan fiction — such as the analogous, but not directly on point, contrast between the Winter brothers on the one hand and Tony Twist on the other — have substantial connections to nonfictional elements, such as the identity and reputation of real persons depicted (or allegedly depicted) in the respective fictional works. Most fanfic, however, is based on much "purer" fictional referents... which changes the nature of and justification for fair use rather significantly. And far be it for me to suggest that the entire inquiry is flawed at the outset.

2. No matter how good their arguments or benevolent their intentions, fanfic writers do not get to decide what is in the creator's best interests and rely upon that decision as a post hoc rationalization for their own conduct.

This has both strong legal and strong moral components. The moral component is, perhaps, easier to see and explain: Unless the creator is literally incapable of deciding his/her/its (in the case of estates) best interests, that kind of paternalism has no proper place in private decisionmaking. It's one thing for parents to decide that going to a Catholic school is in an eight-year-old child's best interests; it's entirely another for an adult to decide that another adult must perforce attend Sunday Mass... even if that other adult was a lifelong Muslim/Jew/atheist; perhaps even more if that other adult just didn't care.

Legally, it gets even more complex, because authors of fan fiction (and, most of the time, the creators of works being fanficced) at minimum do not understand the legal context of what constitutes the creator's "best interests." There may be substantial tax consequences, particularly if there's an estate (bankruptcy, too) involved; some of the "rights" at issue may be subject to other legal claims, or result in diminished chances for the creator to do exploit those rights him/her/itself; it might result in independent harm to a third party that tarnishes the creator (ask Carol Burnett); it might be any of a million other things with legal consequences. Further, you don't get to decide what aspects of a creator's oeuvre getting "free publicity" from your fanfic efforts — however whimsical, or better than the original, or whatever — are in the creator's best interests. If the creator has decided to abandon that particular aspect — perhaps even is legally compelled to abandon that particular aspect — you, as a fanfic writer/consumer, don't get to second-guess that decision; you don't even get to make that decision in the first place if it's the result of neglect rather than a conscious decision.

For me, the key point is this:

The old meme that "it's easier to get forgiveness than permission" doesn't work anywhere with intellectual property of any kind; the more creative the nature of the intellectual property, the more one must resort to permission as the default. Of course, defaults have exceptions...

And if that hurts your feelings, all I can do is point out that it's an imperfect universe and that you're just going to have to live with it. If the object of your affections says "no fanfic," don't do it... unless, that is, you're an experienced scholar and really are engaging in critical commentary and/or protected parody, and in any event you're prepared to accept the consequences (especially, but not only, if you're wrong). If you, as a creator, say "no fanfic," be prepared for the opprobrium that will be coming your way (whether you see it or not). If you, as a third-party exploiter (such as, say, a certain somewhat disreputable social-networking nexus that places ads on viewed pages), think that you can shove all responsibility off on third parties when you're explicitly contemplating (and even encouraging) this kind of thing, you need to be prepared for some consequences, too. And if you, as a fanfic reader, want to pretend that you're not encouraging some pretty ugly stuff along with the "better stuff" that you no doubt believe you're restricting your reading to, there's not a lot I can do to stop you; all I can do is tell you to grow up.³

<SARCASM> Of course, if the various arms of the entertainment industry would just stop putting out such a load of crap in the first place, maybe that would cut down on fanfic... because an even lower proportion of the fanfic would be of comparable (or even superior) quality to its inspiration. </SARCASM>

1. For a barely-scratches-the-surface introduction to some of the legal framework, see my incomplete, still being revised essay on fanfiction.
2. For example, the "transformative use" meme flowing from the 2Live Crew case has pretty clearly demonstrated the intellectual dishonesty and bankruptcy of many of its proponents, precisely because it is a post hoc rationalization. It's an unfortunate turn of phrase that too often masks behavior more common to first-grade recess than anything else... and even the more levelheaded proponents of transformative use seldom understand that transformation in this sense is both tautological and solipsistic, which in turn means that determining that a particular use is (or is not) transformative provides no logical foundation for evaluating a different instance.

   I'm not claiming that I have the solution; I'm claiming that there is no general solution, just as there is (almost certainly) no general solution to the n-body problem. That's part of what makes creativity possible and fun in the first place.

3. And you won't, particularly not if you're elected to public office; some of the right-wing retellings of US history that are floating around right now are more childish than the worst fanfic, and the left has (historically) played that game, too. Sadly, this only demonstrates the problems with determining fair use in mixed fictional/nonfictional accounts even more clearly...

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

link to: 00:04 [GMT-6]

Labels: civil rights, culture, military, politics

link to: 15:58 [GMT-6]

The US Liar cover went through many different versions. An early one, which I loved, had the word Liar written in human hair. Sales & Marketing [at the publisher] did not think it would sell. Bloomsbury has had a lot of success with photos of girls on their covers and that’s what they wanted. Although not all of the early girl face covers were white, none showed girls who looked remotely like Micah.

I strongly objected to all of them. I lost.

Then, a little farther down:

Since I’ve told publishing friends how upset I am with my Liar cover, I have been hearing anecdotes from every single house about how hard it is to push through covers with people of colour on them. Editors have told me that their sales departments say black covers don’t sell. Sales reps have told me that many of their accounts won’t take books with black covers. Booksellers have told me that they can’t give away YAs with black covers. Authors have told me that their books with black covers are frequently not shelved in the same part of the library as other YA — they’re exiled to the Urban Fiction section — and many bookshops simply don’t stock them at all. How welcome is a black teen going to feel in the YA section when all the covers are white? Why would she pick up Liar when it has a cover that so explicitly excludes her?

The notion that "black books" don’t sell is pervasive at every level of publishing. Yet I have found few examples of books with a person of colour on the cover that have had the full weight of a publishing house behind them. Until that happens more often we can’t know if it’s true that white people won’t buy books about people of colour. All we can say is that poorly publicised books with "black covers" don’t sell. The same is usually true of poorly publicised books with "white covers."

(some typography corrected to US standard, footnote omitted, bold emphasis added) Go read the whole entry.

Being an inquisitive SOB myself, I decided to look into this problem to see if there's a discernable source. And there is, and it's fixable. Of course, how I get to that conclusion is, itself, an interesting journey. I'll start with data that has been pulled from several major retailers. Datagathering involved going to the "feature table" in the YA/teen section of the store, visually inspecting what was on offer, and doing a little bit of math. Here are the results for three stores (the dataset is considerably larger):

Keep in mind two other data points: The overall US population was approximately 20% noncaucasian (allowing for half of multiracial identifiers as being not visibly distinct for this purpose) in July 2008, with the proportion of teenagers who are noncaucasian almost certainly higher; and that the data summarized above is both statistically consistent with the larger (multicity) dataset² and statistically distinct from the overall US population data.

Enforcing antitrust law would probably (not certainly) have prevented this after the demise of Jim Crow. But what does this have to do with antitrust? First, you must understand that antitrust concerns not overall firm size — or, at least, it doesn't under modern US antitrust law; your results will vary in Europe! — but concentration in a market. Those who were paying attention in either a basic logical reasoning course in college, or during the part of high school chemistry in which you learned about the ideal gas law, should immediately spot the problem here:

A measure of market concentration, and therefore a judgment made about when that market concentration is "too high," is only as valid as the definition of the market.

And here's where things get really interesting... in the Chinese-curse sense of "interesting." In each of the last seven major "publishing industry" transactions that were subjected to initial antitrust scrutiny by the FTC and DOJ, the definition of market that was adopted was "book publishing," with no attempt to discern if there was more than one coherent market within that market that required closer examination. That is, YA fiction was lumped in with self-help and "inspirational" books, and cookbooks, and murder mysteries, and GED preparation guides, and celebrity pet memoirs, and everything else that one would expect to find in a "general bookstore." This is invalid, both historically and economically, whether comparing numbers of titles or numbers of volumes sold. There is no monolithic publishing industry — there is the bastard offspring of a three-century-long orgy among thirteen³ incompatible business lines that have only resource-based fungibility (that is, substitution of supposedly like products is encouraged primarily by the resources available for production and consumption — not by consumer preference).

It gets better, too; further inquiry has satisfied me that the cause of Bloomsbury's position, as expressed to Ms Larbalestier, was an almost-offhand remark by one buyer for a Major Book Retailer⁴ combined with unfocused efforts at sales by both publishers and book distributors and sellers. I suspect that this would qualify more as "disparate impact" than it would as "intentional discrimination," but the result is the same. Of course, if the FTC and DOJ had not had their heads up and locked for the last two decades on scrutiny of mergers, perhaps this wouldn't be such an issue: No one buyer could have had that pervasive an effect, absent actual conspiracy; a greater number of decisionmakers of equal standing makes consensus (helpful and harmful) much more difficult. It doesn't help that the publishing industry as a whole doesn't look like America, either; but that's for another time.

The irony, as Ms Larbalestier notes in closing, is that this nonsensical meme rests on mere assumptions, and not on controlled data (or even equivalency of effort, let alone of product!). Too often, the publishing industry puts its marginal marketing dollar behind books that don't need all that much support, and lets the hard ones languish. The opposite extreme would be no better in the end; but surely there's some space for some risk-taking combined with actual support. Ms Larbalestier's post indicates that she's been happy with Bloomsbury overall, and that she's gotten promotional support that she hadn't elsewhere. That's great; it's not, however, good enough.

1. Allowing for artistic style and giving as much benefit of the doubt as possible. It's not time to even try to unravel the Hispanic subset, or try to ethnographically narrow things down to Northwest European — leaving aside that about half of the samples were artist's interpretive renderings (and not photographs or photograph-like paintings).
2. Sure, the individual stores bear some blame here, but — particularly as members of chains — they can only put out on the table what the buyers in New York buy for the stores.
3. Or perhaps as few as eleven. There's room to quibble over whether, for example, nonprofessional educational materials (like those GED guides mentioned above, or books on writing for publication) belong with "trade nonfiction," "educational," or in a category by themselves. There's no room for argument, though, over the core categories of nonadult nonfiction; trade nonfiction; academic and serious nonfiction; professional; educational; noneducational instructional; adult fiction; children's fiction; ancillary materials; serials and periodicals; and reference works — each of which has distinct economic, and indeed legal, characteristics that require consideration as entirely separate markets.
4. Without ascribing intent, this Major Bookstore Retailer is well beyond the "excessively concentrated" level for at least five of the publishing markets described in note 3.

Labels: culture, jurisprudence, politics, publishing