link to: 12:03 [GMT-6]

• There's some evidence that the 'net is suppressing sales of celebrity tell-alls, but you'd never know it by what publishers are actually putting out... or acquiring. Leaving aside that a celebrity tell-all requires a celebrity with some stamina as a celebrity — for the 100-meter equivalents, the 'net is more appropriate — the real problem here is hidden: It's that marketing efforts are disproportionately expended on those celebrity books because the publishing industry (rightly or wrongly) believes that celebrity egos require it, even when the book itself doesn't. Unfortunately, the proof of this is too often buried in confidential discovery materials.
• The preceding sausage implicates the problem with this one. An item in PW's online update proclaims "Tinkers Sells 100,000 Copies" (typography corrected), noting that BookScan and Constellation (two electronic point-of-sale trackers — that is, sales recorded via BookScan and Constellation are essentially nonreturnable, unlike figures for shipment to distributers and bookstores). That sounds like great news, right? The problem is that these figures are absolutely meaningless... because they're going to be folded into a royalty statement that won't be issued for a minimum of 90 days (and that's only if the reporting period ends on 31 July), and perhaps as much as nine months. By that time, the sales reported via BookScan and Constellation will be buried inside the returnables, and thus will be both subject to royalty-payment shenanigans and irrelevant to any ongoing effort to either correct problems or exploit successes.

  Perhaps one of the other reforms authors and agents should be demanding on e-books, along with more-realistic royalty rates, is more-realistic accounting methods and timeframes. It would actually be good for both the publisher and the author to have monthly, or at least quarterly, immediate reporting of nonreturnable sales... since it's quite apparent that the publishers are doing that anyway, so they can't exactly claim that it would cost them extra. That would allow everyone to adjust marketing strategies to reality in time to make a difference.

• And further along on e-books, consider a UK perspective on e-reader competition, penetration, and pricing that bears scrutiny here in the US, too.
• Inevitably, someone will defend any corporate malefactor with the cry "It's not all Amazon's fault!" And it's not. I do not believe that any single actor has caused the publishing industry's deepseated problems, however possibly fatal (or at least requiring major surgery) they are. Instead, the problem is one of attitude: That "bigger" is necessarily "better," and must be measured against noncomparable "competitors," and that every negotiation has a loser who brings shame and disgrace upon his/her family for a generation. Leaving antitrust aside, it didn't seem to help the dinosaurs a whole lot, did it? And it's sort of ironic that this kind of hypercompetitiveness leads to antitrust problems...

  To top off the problems with that article, it presumes that "earning back the advance" is a measure of publisher profitability, when almost nothing in this business could be more false. For one thing, the data "suggesting" that 70% of books don't earn back their advances is both overstated and highly unreliable, based as it is in a small part of the publishing industry. For example, well in excess of 95% of books in the educational market earn back their advances based on sales before the official publication date. For another, the meme that the amount of the author advance represents the publisher's breakeven point bears absolutely no scrutiny at all, either from a process standpoint or by examining the cold, hard numbers. From a process standpoint, if that represented the breakeven point, publishers would never negotiate over advances; instead, the management methods instilled in MBA programs across the nation would make the advance a nonnegotiable quantity, and only the payment dates would get altered in negotiation.

  From a numbers standpoint, both my own experience and the experience of others I trust with audited¹ financials — and, particularly, audited financials based on actual expenditures and not hypothetical cost-sales sheet (aka profit-loss sheet) projections — indicate that the median breakeven point on a trade book appears to be between 74% and 78% of the publisher's maximum advance as reflected on the acquisition papers... which usually (not always) exceeds the advance actually paid. And then, lurking behind all of this, there's the counterexample of advanceless books and their experiences to demonstrate that the advance is not a meaningful measure of publisher profitability.

  It really doesn't help an argument's credibility when it's based on numbers pulled out of one's ass. When even those numbers don't say what they seem to, the argument starts to resemble religion or politics... and, in particular, the dubious evidence offered on all sides of the gun control argument.

• Cheryl Morgan blogged some intelligent, and long overdue, musings on the "genre" of "literary fiction" and its distorting effects on awards and, well, everything related to publishing fiction. I say this as a refugee of sorts from high-end literary study who never abandoned speculative fiction in the meantime; whether you call it "magical realism" (Marquez et al.), "satire" (Voltaire, Cervantes), or whatever, the setting is just one of the four approximately equal legs of a work of fiction (along with character, plot, and theme; "style" is the tabletop, not a separate consideration). These considerations go back to the dawn of the modern publishing "industry" in the 1870s. And remember that for every literary lion arising out of so-called "literary fiction," there are dozens of literary failures; in short, Sturgeon was an optimist. I'll put The Sparrow and The Left Hand of Darkness and A Canticle for Leibowitz up against any set of Booker prize winners; there's nothing about being "speculative fiction" that makes them inherently superior or inferior to each other.

1. Which is not to say "therefore true." It is only to say "closer to truth than what routinely appears on royalty statements." The dubious honesty and integrity of royalty statements is a cultural problem in publishing, just as severe as the "bigger is better" meme. Even with the best intentions, the very "standards" for royalty reporting — not to mention the data-collection methods — result in significant inaccuracies... almost always to the publisher's advantage.

Labels: arts, culture, miscellany, publishing

link to: 13:45 [GMT-6]

• Sometimes damages claims have to be excessive to get noticed, like a recent shocking case from Russia. First, it's shocking because an infringer actually lost — Russian courts are notoriously prone to throwing claimants out on their ears, or at best awarding nominal damages and shaking a finger in the face of the infringer (before going out for drinks with the infringer, but that's another issue not limited to IP). On the other hand, calculating damages for infringing a book based on a £2,400 leather-bound edition when there's a casebound £84 edition also in the marketplace seems a bit excessive, particularly when the infringing edition sold for £3.40.
• And at the opposite end of the spectrum, in US litigation one must provide (too early in the process) an estimate of damages... and then back it up, usually with an expert opinion. It helps if the expert actually calculates damages, or you might lose your entire claim.
• As a big surprise — that is, just as surprising as gambling at Rick's Café Americaine — the record companies have filed an appeal against the Tenenbaum remittitur (reduction in damages ordered by the judge after trial). As much as I dislike the RIAA's tactics in general, I think this is as close to a slam-dunk appeal as possible, for two reasons. First, regardless of the characterization as such by some people, statutory damages — and, in particular, copyright statutory damages — are not punitive damages; they are much more akin to liquidated damages. More to the point, there is an unclear standard for determining when liquidated damages are unconstitutional... and copyright statutory damages are not even close to that standard, despite its lack of clarity. So, instead, the underlying rationale must have been that the damages awarded in Tenenbaum were so excessive as to "shock the conscience" on the record; that, however, is not what was done. Instead, this was one of the very, very few clear instances of judicial activism that I've seen in IP litigation; Judge Gertner substituted her judgment for Congress's judgment on the appropriate limit of statutory damages. However foolish Congress may be — and however much I wish the standard reflected the reality of what passes for "legislative factfinding" better than it does — she doesn't have that power, so long as Congress made some findings of fact based on "substantial" evidence (that is, evidence good enough to persuade a sixth-grader in the absence of any opposing evidence)... and the text and legislative history of the 1976 Act pass that test. "Stupid" and "arbitrary wild-ass guess" and "prone to distortion" and "counterproductive" do not equate to "unconstitutional."
• On the patent front, Professor Crouch notes Abbott Labs' brief on "inquitable conduct" as a ground for revoking a patent. This bears considerable thought, especially if one compares the work for hire analog in the Patent Act (35 U.S.C. § 118) with the draconian work for hire provision in the Copyright Act (17 U.S.C. § 201(b))... and with the text of the enablishing constitutional provision (Art. I, § 8, cl. 8).
• Enforceability of electronic signatures is back in the news. The interesting thing about this is that I'm not at all certain that even the most generous interpretation of e-SIGN gets around the Copyright Act's signed writing requirement... because the Register of Copyright has not issued a regulation or interpretation that clearly so allows.
• First, zombies and Jane Austen. Now, media-conglomerate zombies in your computer. Sort of. This is as much about Adobe's reprehensibly insecure Flash system as it is about anything else... but it also, arguably, relates to the actions earlier this week on exemptions from Chapter 12 of the Copyright Act, because these "zombie cookies" are at least arguably related to preventing unlawful copying and access... since you can't see the video unless you accept the cookie first. Hmm.

Labels: copyright, intellectual property, jurisprudence

link to: 12:57 [GMT-6]

• Publisher overdiversification, like that at Pearson (corporate parent of Penguin), has some interesting, odd, and on the whole negative effects. The critical point is this: Advancement to management at the top level of the company will be determined, at least in part, by comparative performance, and there's no way for contemporary accounting practices to compare the actual performance at a publisher to anything else without driving the publisher toward just-in-time inventory and short-term cost minimization. Since long-term profit in publishing requires the opposite by definition, this kind of bad comparison attracts fewer great (or even competent) CEOs than short-term profit maximizers who are incapable of dealing with adversity — or even invite adversity. That's not just apples and oranges; it's apples and orangutans.
• The long list (semifinalists) for the Man Booker Prize has just been announced. This £50k annual prize for a book-length work of fiction published in the UK in English is also, amusingly enough, a fairly popular subject of wagering every year, and I'd bet that less than 5% of the wagers come from people who've read more than a third of the books on the longlist. On the other hand, there aren't a lot of bets on the Kentucky Derby from people who've ever been on a horse, let alone raced one...

  ... which leads, in a particularly sick and twisted way (not, on this blawg, unexpectedly so), to Cat Rambo's musings on the future of publishing, which are both plausible and implausible. They are plausible within one relatively narrow portion of publishing: Category fiction (sometimes called "commercial fiction," but that's both too broad and too narrow due to that outlier "literary fiction"). That's the tail, however. In prestige terms, it's a Labrador's tail, fully capable of sweeping everything — the TV remote, the wineglasses, the scattering of magazines and books — off the virtual coffee table onto the carpet. In economic terms, though, it's a Rottweiler's tail, fully capable of annoying the owner without having one damned thing to do with the rest of the dog; all of book-length fiction is (in purely publishing terms) less than 15% of the publishing industry, whether by titles published or revenues. Rambo's musings bear some consideration, and point out a possible path; I suspect, however, that reality will prove far stranger.

• The horror of copyediting can be avoided by choosing copyeditors with more than a modicum of educational attainment... which, of course, means that they probably don't play nicely enough with others to get off the bottom rung in publishing. And that's a really low rung, one that these days is probably poorly paid freelance work to boot.
• The libel law problems in the UK continue in front of its (still new) Supreme Court. Just like in criminal law, though, the real problem with many of the cases that actually make law (and anyone who says that judges just "clarify" or "discover" existing law probably believes that the internet is just a series of tubes, too) is that so often, that defendant whose rights a just must ultimately decide to uphold is at best an utter sleazebag. Taking one's revenge on one's former client on one's blog is more than a little bit sleazy, Mr Spiller — no matter how valid your feelings, the way you went about it was inappropriate (and unEnglish), even if it should be outside of libel liability.
• Speaking of developments in UK law, a current case discussed by my prolific colleague Dr Phillips at the 1709 Blog reveals that the UK may (or may not) be edging closer to embracing the formal distinction between copyrightable expression and uncopyrightable recitation of facts in a case about reverse-engineering a programming language and programs. OK, I'm an IP nerd; I find these things inherently of interest by themselves. But they're also relevant to authors... and, potentially, to the so-called "hot news" doctrine that provides quasicopyright protection to facts that are not otherwise protectable as sufficiently original to merit copyright.
• An interesting procedural side note in another matter indicates I may have been too hasty in assuming that "normal practice" would be following in the Google Book Search matter. "Normal practice" is that when a federal judge is elevated from the district court to the circuit court of appeals, that judge leaves all of his/her district court cases behind for reassignment — particularly when the circuit court is short on judges even after his/her arrival. Ordinarily, circuit court judges do not handle trial matters by designation for at least two years after their arrival at the circuit court. Judge Chin, however, just issued an internet-related opinion (discussed by Professor Grimmelmann) by designation. What is puzzling to me is that neither a reassignment nor a designation order has yet been issued in the GBS matter, so we just don't know. Perhaps the parties "know," or at least have been told, what is planned.

  That longwinded preface aside, we're now getting into the most-probable period for Judge Chin to issue a decision on the class settlement, if he's going to be the one to do so. There's a strong impetus to have one's current clerks finalize everything possible, and particularly everything possible that is based on a large record, before the semiofficial changeover in late September/early October. That's why there's always a flurry of long opinions from federal district and appellate courts beginning in early August and running up through mid-September. I won't say "watch this space," but still...

• Worry less about free (or even expensive) broadband for everyone and more about library access... if only because any decent reference librarian has access to, and knows how to get at, material that is not now (and probably never will be) in a queriable database.

Labels: civil rights, copyright, culture, internet, miscellany, politics, publishing

link to: 11:59 [GMT-6]

Just slouching out of the weekend, here...

• Given that ComiCon was this past weekend, one might think that there would be jokey magazine covers with pictures of supervillains on them, and that superheroes would be ready to respond. Unfortunately, the cover to the right is no joke; and those aren't fictional or comic supervillains... they're all too real. And Foreign Policy doesn't have a sense of humor to start with.

  Conversely, ComiCon didn't cover Darth Vader's second career, probably because it was on the opposite coast.

• At the Sun-Times, a rather shortsighted piece by Andy Ihnatko extols a forthcoming effort to impose "reasonable" digital rights management. Even if it works, it will be a bad thing... because it will establish a hackable/crackable/subpoeanable/purposefully accessible central registry of what content one owns. I shudder to think about what that means in terms of "targeted advertising opportunities," even if it doesn't contain printed matter (and, eventually, it will — the economics of the situation basically demands it). The less thought about being labelled a subversive due to the contents of one's library, the better; do you really believe that registering a copy of the (hypothetical) Anarchist's Cookbook Video Companion won't result in a van parked up the street filled with surveillance gear (and that's just the semilegitimate version... in East Central Redneckistan, The Last Temptation of Christ might trigger scrutiny from some of the nutcases we've got)?

  Then, too, it will positively kill the used-media/books marketplace — a "benefit" that I'm sure the proprietors have thought about, but that completely escaped Mr Ihnatko. Unless, of course, the DRM itself is so pathetically easy to crack that a teenager can do it in 48 hours, including creating the stripping code... just like DeCSS, or for that matter the Kindle "encryption" system. This is a consequence of the availability of the known-plaintext attack on multiple versions of the coded message; today's laptops have more computing power in their operating systems than it required to break Enigma, and if they can play that media, they've also got enough power to attack it.

  The real problem, as usual with counterfeiting and piracy, is an economic one, not a technological one. If you make it unprofitable to engage in piracy by keeping quality of products/services high, useability unrestricted, and prices low, piracy/counterfeiting becomes an occasional nuisance. Only when your ego — and the purported value of your brand, whether it be Members Only or Viagra — gets out of control does DRM (etc.) begin to look attractive. It's an offshoot of the mercantilism versus comparative advantage problem, but that's too theoretical for even this blawg.

  Mr Ihnatko's headline indirectly assumes that "reasonable DRM management" exists. It doesn't (and Members Only's experience in the 1980s is more than adequate proof). Get over it.

• Extending from the preceding sausage, the Copyright Office insulted Hollywood today. Schade. Chapter 12 of the Copyright Act prohibits circumventing anticopying technology; that's why it's unlawful, for example, to circumvent the anticopying code on DVDs, even for legitimate academic and fair-use purposes. The Copyright Office, however, may exempt some categories of content from the anticircumvention provisions, and has done so this morning, ruling that the following uses do not violate Chapter 12:
  • making small extracts from DVDs for educational purposes, documentaries, comment and criticism, or noncommercial use
  • hacking phones and phone applications so they'll work on other phones and networks
  • reverse-engineering video games for security and testing
  • computer programs with dongle-based security when the dongle is damaged
  • eBook editions that block read-aloud functions

  I expect to hear the screams from Hollywood in about 45 seconds, and for a lawsuit to be filed by Friday.

• Just when you thought it was safe to improperly classify documents because they would cause political embarassment, not serious or grave and forseeable damage to national security: Ellsberg II. And further than that, my excessively harsh and inclusive NDA will not allow me to say what I want to about this (arguably, I've already violated it once on this platter)... except that I would remind everyone that the oath of office is to protect the Constitution (not the presidency, not any political grouping, not any ideology, not any specific cause) against all enemies, foreign and domestic.
• Paul Krugman tastefully understates the reason that there hasn't been, and probably won't be, effective action on climate change: greed and cowardice. Not to mention ignorance, but since the ignorant won't even read his column...

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

link to: 08:25 [GMT-6]

The first, and perhaps most obvious, issue is whether Random House is in a position to object at all. Those with long memories — and in the entertainment industry, a decade certainly qualifies as "long" — may recall who the opposing parties were in Rosetta Books. Now, admittedly, that case was confidentially settled in the end... but there's this tiny little procedural device called "offensive collateral estoppel" that seems to eviscerate Random House's claim (as stated by Mr Applebaum in the press release quoted in that link above) that Random House owns those rights. The non-judgment ruling in Rosetta Books — that Random House's contracts, from the same era as many of the works cited by Mr Wylie (and, indeed, there's some overlap in authors!), do not transfer electronic rights to the publisher — has only been reinforced by Tasini, which made a virtually identical holding as to periodical contracts that did not specifically mention electronic and/or database rights. "Offensive collateral estoppel" prevents a party that has lost an issue after a full and fair hearing from relitigating the same issue in another case. For example, once a court has found that transaction x was fraudulent, the con artist doesn't get to claim (in the next lawsuit, by a different victim of the same con) that it wasn't; all that victim n+1 need do to win that issue is present the finding in the previous matter. The rules for exactly when offensive collateral estoppel applies are rather complex, but Rosetta Books seems to satisfy them... so Random House is not in a position to claim that it has any legal rights based on the form of contracts it used in the 1960s. And even absent offensive collateral estoppel, I see no way for Random House to overcome Tasini.

The "exclusivity" issue raised by some publishers cuts both ways, against both sides. On the one hand, Mr Sargent (of Macmillan USA) is right to be disturbed by the exclusivity with a "single retailer" — particularly one with a long history of activity that won't bear much scrutiny under antitrust law by itself. The problem, though, is that this particular objection is coming from a monopsonist; under even the ridiculously lax, Reagan/Bush I-ideologically-suspect DoJ antitrust guidelines, the market in "serious literary fiction" is already overconcentrated. That is, this is very much an instance of the pot and the kettle arguing over how much light we get out of all this heated rhetoric... while ignoring the heat, the boiling away of the contents, and potentially the cracking of the vessels.

The antitrust issues get even more disturbing — and I'm going to pick on Macmillan again, but it is far from alone — when one considers the publishing industry's negotiating tactics on e-rights. Suffice it to say that recent correspondence with ignorant¹ Macmillan representatives has demonstrated to my satisfaction that the company does not, in fact, have any idea of what constitute commercially reasonable terms for electronic rights; instead, it demands them, on its terms, essentially non-negotiably, because it can. The key point is that the particular terms imposed by publishers on electronic rights are, themselves, grossly unfair to the authors... and represent a windfall to the publishers.

Most disturbing of all, though, I have huge problems with the way that Mr Wylie has gone about this. The appearance of a conflict of interest must be treated as an actual conflict of interest, and even more so when that conflict is in a fiduciary... such as an agent, in both the literary and the legal sense. There are quite a few circumstances in which one can later clear up the appearance of a conflict of interest and demonstrate that there isn't an actual conflict; none of those circumstances apply to fiduciaries. That is, Mr Wylie — and, indeed, any individual agent/agency — is absolutely the wrong person to be simultaneously the publisher and the literary agent for authors... particularly in an instance such as this, in which Mr Wylie's legal interests will be on both sides of the v. in any later lawsuit concerning these electronic rights, however indirectly. Sure, there may be the fiction of another corporate entity actually doing the e-rights — but fiduciaries don't get to take advantage of that kind of fiction. The key point is this, Mr Wylie: You'd better be sending 85% of the revenues received from Amazon along to your authors, because your agreement with the authors allows you to keep only a 15% agency commission; keep a penny more and the fiduciary duty issue becomes a live one.

Ironically, all of this implicates the inadequate information being offered, combined with the lag in that information. Publishers simply refuse to provide adequate information on the costs and revenues of e-books (and when they do, they ignore sunk costs and duplicative accounting), and what information they do provide is verifiable only a year or more later when the royalty statements actually get issued. Retailers (like Amazon, which is particularly relevant in this instance) do no better, relying on grandiose generalizations and statistical methods that would be rejected as a sample solution during the first month of college-level statistics. And authors... authors (and, as particularly relevant here, their estates) generally don't know anything about the business interests and implications of their writings in the first place; that's one reason that they have agents.

So that's a pretty disturbing set of trees, most of which would be more at home in Mirkwood than in the Hundred Acre Wood. What about the forest? Even leaving aside the antitrust issues — which are more than disturbing enough all around — it's a pretty gnarled, dank forest. In Tasini, the Supreme Court ruled that authors may dispose of rights they did not explicitly transfer to publishers as they choose. The problem with that optimistic meme is that it assumes that authors have realistic choices for doing so. We can't forever ignore the monopoly/monopsony problems and the conflicts of interest, but the utter lack of standardization in electronic formats and devices makes many of the purported choices available to authors unrealistic at best.

   This all reflects back into the package problem (which I will return to... once my own little conflicts get resolved).² Basically, the argument is over how to move the actual property to the actual end-user; and the argument is between various middlecreatures in modern America's favorite game show, Who Wants to Be an Arbitrageur?,³ with very little consideration of the distinct (and disparate, and inconsistent) concerns of the authors, or of the constitutionally mandated purpose of US copyright ("Progress... in the Useful Arts"). We need to find a way to "pay the writer" that doesn't treat writers like production-line drones... even those writers who are production-line drones. I don't know what that method might actually end up being; I'm just reasonably certain that the status is not quo, and that Mr Wylie's "solution" isn't either (quo, that is).

1. I'm being perhaps unduly generous here. At least as to Macmillan, I do not (at this time) have satisfactory evidence of bad faith or discrete antitrust violations (such as overt collusion among publishers). I cannot say the same for another media conglomerate on this issue.
2. When a conflict comes up related to something that I'd ordinarily blawg about — even if it's in the middle of a series — I halt. Sometimes I say something; sometimes I don't. In this instance, several licensing consultations hit in the week following Part II of "You're Staring at My Story's Package" that have made it necessary to place that series on hiatus. That is, I apply those same rules about "conflicts of interest" here... even though arguably there isn't one, as this blawg is just general commentary. The appearance is enough. I'd advise Mr Wylie (et al.) to think seriously about that.
3. More of this problem is driven by the linguistic errors of management theory than one might expect. An "arbitrageur" is supposedly engaging in a low-risk transaction to take advantage of an inefficiency in the marketplace; and arbitrage supposedly improves marketplace efficiency by, over time, eliminating those inefficiencies as more and more arbitrageurs flock to particular inefficiencies and, through the magic of market forces, crumple them to fairy dust. The definition of "risk" in modern investment theory is based not on any actual probability of loss, but on the estimated time-sliced variability of return. That is, "risk" (usually termed "beta") has come to assume a positive return as the norm (not merely the objective), ignores long-term effects and replicability, and — as a purely scalar measure — tries to make all considerations of "risk" contextless. This is a flawed enough representation generally, but it is definitely inappropriate regarding intellectual property whose price is set at a blind, non-equilibrium auction without immediate feedback.

Labels: copyright, intellectual property, jurisprudence, publishing

link to: 17:48 [GMT-6]

More to the point, there are people whose "day jobs" relate peripherally, or even directly, to their creative ambitions who want to stop being mere employees. Even fashion designers. Even fashion designers for dolls. And, thus, our tale for today.

Once upon a time, a designer of doll fashion accessories wanted more. So at home, at night and on weekends, he designed not just fashion accessories, but the entire bloody doll. Another company became interested in the dolls; he left the employer; the new dolls came out, and — with a lot of attitude — hurt the feelings of the first company. (Whether they actually cut into the sales of the first company's product line remains a rather elusive inquiry.) The first company found out that its ex-employee had conceived of the dolls while he was still employed there, and did what anyone in the entertainment industry would do: It hired a bunch of very expensive corporate litigators from a white-shoe firm and sued. And thus, we end up with the question that Judge Kozinski asked this morning:

Who owns Bratz?

Mattel, Inc. v. MGA Enter., Inc., No. 09–55673 (9th Cir. Jul. 22, 2010) (PDF), slip op. at 10529. And his answer, as implied by the title of this post, was "It's not certain — a jury must decide."

Mattel, as is common, imposed a "we pwn yr IP" clause in its employment handbook and agreements:

A constructive trust would be appropriate only if Bryant assigned his ideas for “Bratz” and “Jade” to Mattel in the first place. Whether he did turns on the interpretation of Bryant’s 1999 employment agreement, which provides: “I agree to communicate to the Company as promptly and fully as practicable all inventions (as defined below) conceived or reduced to practice by me (alone or jointly by others) at any time during my employment by the Company. I hereby assign to the Company . . . all my right, title and interest in such inventions, and all my right, title and interest in any patents, copyrights, patent applications or copyright applications based thereon.” (Emphasis added.) The contract specifies that “the term ‘inventions’ includes, but is not limited to, all discoveries, improvements, processes, developments, designs, know-how, data computer programs and formulae, whether patentable or unpatentable.”

Id., slip op. at 10532–33 (footnote omitted; emphasis and ellipses as in opinion). The District Court granted Mattel (mostly) summary judgment (and partly the benefit of a jury trial), but the Ninth Circuit overturned on two separate grounds that will be of interest to authors.¹

First, the court held that the definition of "invention" is ambiguous enough that a jury should have been allowed to determine whether the copyrights at issue — which are not ordinarily granted for useful inventions! — fell within the scope of that clause. For example, other Mattel employees had contracts that explicitly covered both "ideas" and "inventions." The court also held that the injunction issued by the trial court was too broad, and included both the value of what was properly at issue (two of the Bratz dolls) and what was not (everything else MGA did, including additional Bratz dolls, non-doll accessories, etc.).

Of greater interest to writers than even the subject matter, though, is time. Based on both this opinion and what I've read of the case elsewhere, there didn't seem to be one of the old "He did it at work with the company computer" issues; instead, it seems fairly clear that Bryant did his work off-site outside of "duty hours." Mattel claimed that "at any time during my employment by the Company" means "24/7 while this employment agreement is in effect." However, the court held that

The phrase “at any time during my employment” is ambiguous. It could easily refer to the entire calendar period Bryant worked for Mattel, including nights and weekends. But it can also be read more narrowly to encompass only those inventions created during work hours (“during my employment”), possibly including lunch and coffee breaks (“at any time”).⁷ Extrinsic evidence doesn’t resolve the ambiguity. For example, an employee testified that it was “common knowledge that a lot of people were moonlighting and doing other work,” which wasn’t a problem so long as it was done on “their own time,” and at “their own house.” She agreed when asked, “Was it your understanding that if you designed dolls when you were at home at night that you owned them?” However, another employee testified, “Everything I did for Mattel belonged to Mattel. Actually, everything I did while I was working for Mattel belonged to Mattel.”

Because the agreement’s language is ambiguous and some extrinsic evidence supports each party’s reading, the district court erred by granting summary judgment to Mattel on this issue and holding that the agreement clearly assigned works made outside the scope of Bryant’s employment. The issue should have been submitted to the jury, which could then have been instructed to determine (1) whether Bryant’s agreement assigned works created outside the scope of his employment at Mattel, and (2) whether Bryant’s creation of the Bratz sketches and sculpt was outside the scope of his employment.

⁷ Mattel argues that because employers are already considered the authors of works made for hire under the Copyright Act, 17 U.S.C. § 201(b), the agreement must cover works made outside the scope of employment. Otherwise, employees would be assigning to Mattel works the company already owns. But the contract provides Mattel additional rights by covering more than just copyrightable works. The contract can also be enforced in state court, whereas Copyright Act claims must be heard in federal court.

Id., slip op. at 10538–39 (citations omitted). Although the court claims not to be making a definitive finding — instead, sending it back to the trial court for proper proceedings — the close of the opinion is rather ominous for Mattel:

America thrives on competition; Barbie, the all-American girl, will too.

Id., slip op. at 10549. That doesn't quite answer Judge Kozinski's initial question... but it seems awfully close to the answer that Mattel didn't want to hear.

So, what does this mean to authors? At the moment, keep in mind that it is limited to the particular language in this particular employment agreement, and to an employee whose freelance work was very close to (perhaps too close to, and more than arguably competitive with) his "day job"... but that even under those circumstances, the court seems quite skeptical that Mattel pwnd Bratz. For authors doing freelance work, the first step — obviously — needs to be looking at employment agreements (or employee handbooks). This will get really, really interesting, though, in H'wood and among editors in the publishing (and journalism) segments of the entertainment industry who are trying to write their own freelance works... because the language in the Mattel-Bryant agreement is quite common, and seems to have been so unsatisfactory here. It will also be relevant to college and university employees, most of whom have² far-more-draconian provisions in their employment agreements; there's more than one assistant-professor-denied-tenure out there who wrote a novel at night and on weekends, and was later confronted with a demand to turn over the copyright to the novel.

1. For the moment, we're leaving aside the question of whether such an agreement is appropriate in the first place... and, in particular, whether it can reach material that is not, by its subject matter, related to an employee's duties.
2. [Edited, 25 Jul 2010] As a correspondent pointed out, this may no longer be correct as stated. My documentation of such practices at universities, and the two instances I refer to later in the sentence, arise from 1990s-era contracts. That said, there are still considerable questions raised by university and college contracts over copyright control of teaching materials — that is, if one records a lecture, is it the college/university or the instructor whose permission matters? — that also arise from the same types of agreements... and leave open the question of how later written works by a professor that are derived from classroom discussions will be treated.

   In any event, this language is overinclusive. It's probably not contemporary, and possibly not even correct as to "most" at that time... although that's merely a negative inference, as five out of six of the contracts I ran across from that era fell into the class of "overinclusive" on their faces, modified (perhaps) by later agreements between faculty senates and the respective institutions.

   In short, I let the rhetoric get away from the small data set, a mistake I try to avoid. That doesn't mean "don't worry, be happy" about educational-institution ownership of employee IP; it just means, in this instance, "look before you leap."

Labels: copyright, intellectual property, jurisprudence

link to: 12:02 [GMT-6]

• In the 1990s, "Serbia" (an odd, ahistorical concept if there ever was one, in this century or the last) reinvaded Kosovo, its own territory of mostly "ethnic Albanians" with an "ethnically Serbian" minority. (You may recall the invasion of Vietnam by the People's Republic of China in the late 1970s, supposedly to protect the "ethnically Chinese" population... and remember that the PRC was the greatest support of the Albanian government under protocommunist rule.) This led to all kinds of nastiness — UN intervention, discovery of mass graves and genocidal acts, Hilary Clinton's notorious claim of having been under gunfire — and eventually, in 2008, to a Kosovoan declaration of independence from Serbia. Serbia, of course, opposed the declaration of independence; so did the historical "pan-Slavic" nations, with one exception.

  A few hours ago, the International Court of Justice declaimed that the declaration of independence was "not unlawful" under customary international law.¹ Unfortunately, this kind of ruling does not lead to final results; it only allows both further proceedings and further diplomacy... and if those efforts don't lead to final results, further bloodshed. Anyone remember Biafra?

• In a development that would have been familiar to, if not necessarily approved by, Josef K., an Israeli judge overseeing a family-law dispute has ruled that Kafka's papers must, at least in part, be made public, and not kept private by the descendants of his best friend. As the Grauniad also properly points out, this also intersects with the reprehensible concept of a statist monopoly on Jewish heritage as asserted by ignorant self-interested cultural pirates in Israel. As should be apparent from that last phrase, I'm not a fan of anyone claiming another — and particularly not someone who is dead — as their own cultural property, and then wielding that claim like a sword against others (particularly if there's money involved, as there is here). This is precisely why even that egotistical moron Victor Hugo conceded that there had to be a limit to copyright terms. Frankly, both the two sisters and the State of Israel are acting just as badly as is the Leopoldmuseum on the opposite side of a corresponding question.
• And now, the ever-publicity-seeking (and occasional-author-poaching) "power agent" Andrew Wylie is starting up an e-book imprint for works by his own authors. This isn't exactly a new thing; Richard Curtis has had his eReads imprint going on for some time,² and the underlying theory exactly echoes that in Rosetta Books. On the other hand, publishers are (again) up in arms, loudly proclaiming their continuing rights... to something that it has been fairly definitively determined that they never had, and simultaneously claiming that their pathetic royalty rates for e-books are fair and just.

  And meanwhile, the Google Book Search litigation continues in the background, whether or not it ever settles. Of course, this will get even more sardonically amusing if/when any of those authors ever leave Wylie...

1. This doesn't have a damned thing to do with the American declaration of independence, because in the 1770s there wasn't any "customary international law." The closest thing we had was two treatises by de Groot (usually Latinized as "Grotius") on the law of war and the law of the sea. These, however, were hardly definitive — and, in fact, generated vociferous opposition similar in tone and content to the Tea Party today from such self-interested idiots as Gentili, Bogerman, and Welwood — and were at least as polemical and proscriptive as they were descriptive. (The poor quality of the opposition, it must be said, does not mean that Grotius was necessarily right.) There's an alternate history/science fiction story waiting in there...
2. Disclosure: I have acted as a consultant to Mr Curtis on unrelated matters.

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

link to: 15:25 [GMT-6]

I'd like to think, as a longtime Illinois resident, that I know something about political corruption. Remember, half of our last eight governors have served jail time, and based on what I've seen (and comments from trustworthy direct observers) of the trial, they're about to get more company. These are just the ones who were stupid enough to get caught. Then, too, there's the blatant misuse of public office by leaders in both major parties (and of all political ideologies) that seems to be not just a good idea in Illinois politics: It's the law. I'm lookin' at you, Mr Madigan and Mr Philip, to name just a couple of you miscreants...

The problem with the Sherrod situation is that it was all too plausible... and therefore an easy target... and is therefore going to make it that much more difficult to deal with a real racist abuser of office. They are out there; and one can say that just relying on statistical probability, not even specific knowledge. And some of them are elected sleazebuckets, so there's not a lot we can do to get rid of them (see previous paragraph).

So, congratulations, you arrogant, egotistical, self-serving sons of bitches like Br3itbart. Your eagerness to score quick points by distorting facts has just made it that much more difficult to deal either with the particular problem in question... or with the broader sense of abuse of power and corruption. In short, this is a self-inflicted wound on the forces in favor of good government. Unless, that is, that's not what you want.

If you think I'm ever going to believe any "video evidence" you present in the future, Mr Br3itbart, you've got another thing coming; this incident has permanently self-impeached your credibility. Of course, that assumes that the facts matter in the first place, which seems to be a concept well beyond your tiny little mind's capacity. That, too, though, may be what you want: You can now claim honorable martyrdom in the furtherance of righteousness. Or something like that. Or maybe go down flaming in a libel suit that would be successful (if Ms Sherrod is so inclined).

I thoroughly expect that there will be a comment from Michelle Ba(hmann (R-Planet P) or another of the loonier Mad Tea Partiers in the next 48 hours that tries to slide around how they got it wrong this time and instead focuses on how Shirley Sherrod is a symbol of everything that is wrong in government. And so the news cycle (and stomachs) will churn...

Labels: life, mass media, politics

link to: 13:26 [GMT-6]

• Two seemingly unrelated pieces that actually concern the same thing: the increasing ease of making copies, b/w Disney now demands merchandiseability as a condition of filmmaking. Ultimately, these concern the continued viability of the IP Clause as a foundation for creativity:

  To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

  The problem is not with "individual profit motive for the creators," but with the barriers between an individual creator realizing profit and with the dominance of investment return over return to the creator. In this instance, the dominance of large players with specific investment objectives can act to suppress art; under the purported new Disney policy, can you imagine Disney giving a green light to Inception — despite its financial success? How about Apocalypse Now... or Guess Who's Coming to Dinner? And let's not even think about applying this conception to books... It's one thing to demand a return on one's investment; it's another, entirely, to block creation of art because outside investors might not be satisfied with the particular, unpredictable return. After all, Guess Who's Coming to Dinner? had bankable stars attached; consider an even-farther-down-the-investment-food-chain work by a first-time writer... like Juno. Yeah, I can just see WalMart carrying the amazing Juno action figure with user-adjustable state of pregnancy.

  Maybe — just maybe — that means that investment return is only "supposed" to be part of the decisionmaking in the arts. Maybe the arts are part of what serves the nonmonetary values inherent in the First Amendment. And maybe I'm just a radical idealist. OK, strike all of those "maybes." Instead, consider this: The meme that all investment opportunities must have reasonably comparable returns assumes both that all investment objectives are comparable and that investment capital requirements vastly outweigh investment capital availability. Neither is true, but intermediaries — those who are responsible for making particular decisions and act simultaneously as both sources and consumers of investment capital — act as if it is. I hate to break the news to you, guys, but this is no longer a preindustrial economy with substantial mercantilist elements that is dominated by direct short-term, partially renewable exploitation of landownership: That is, our economy is not the one that gave rise to Adam Smith and the First Amendment (at about the same time, for many of the same reasons).

• Amazon is now claiming that Kindle "sales" are greater than casebound books... but this means much, much less than the headlines. For one thing, the "Kindle sales" in question were not limited to comparable titles — that is, titles only available otherwise in a casebound format. Similarly, the round figures quoted in the various articles (I've chosen to link to the NYT version just because the alternatives with the same data are harder to link to) hide the nature of what a casebound book is... because they don't engage with the price differential at all. It would be very interesting indeed to see a comparison of revenue (asking for profit margin is, of course, right out!) on these items.

  On the other hand, this does point out one aspect of publishing that has been broken since the early 1980s: The pricing model and insistance on setting price based solely upon the package in which the words are made available to the reader. Now compare that problem to the preceding sausage...

• Speaking of pricing problems, consider the numeric value of a brand... and remember that the best legal framework for a lot of franchises is either branding or its next-door-neighbor unfair competition. So, then, Star Trek is worth how much?
• Professor Crouch hosts a three part series on "Patenting by Entrepreneurs." Leaving aside everything else, this represents a fun-house-mirror reflection of the first sausage above... especially after taking into account some of the procedural differences between patent and copyright practice.

Labels: copyright, intellectual property, miscellany, publishing

link to: 14:09 [GMT-6]

• From the department of "Really? I Never Would Have Guessed!": The WaPo has a major investigative report on growth of the intelligence community since 9/11... and has the temerity to somehow act surprised. This has been happening for hundreds of years. To name just a few obvious examples, consider the growth patterns of the Cheka following every labor protest in nineteenth-century Russia; the growth in Walsingham's secret services in England after every threat to Elizabeth I; and on, and on, and on. The surprise would have been if there had not been a (verifiable) increase of between 40% and 60% in personnel strength of the official agencies, with a corresponding explosion in private contractors, after an "intelligence failure" like 9/11; after all, that's what happened after Sputnik.

  Note that I'm not saying it's justified, or nothing to worry about. I'm only saying it's expected. The more-worrisome aspect is this: What are people going to do with their skills and expectations if/when somebody starts shrinking this monster? At least if excessive "spying" is being done by the government, it's more subject to legal control! Besides, the problem with 9/11 was at least as much an analysis deficit as an intelligence-gathering deficit, and we've done nothing to improve that (in fact, we've arguably made it worse).

• There's a fascinating blog-debate going on at ArtsJournal right now on "Creative Rights and Artists", focusing (at least initially!) on the relationship between the creative and the business aspects of the arts in the internet age. Sadly, too many of the participants have axes to grind, and there isn't a great deal of questioning of received wisdom (example: there's not one word concerning the antitrust implications of media consolidation, let alone how those antitrust implications compare to the inability of artists to unionize in response).
• Professor Goldman points out why ya gotta timely register yer copyrights with our hillbillyish registration system that represents the epitome of regulatory capture: If you wait, you might lose your most effective remedies. Leaving aside that this is not consistent with either the Berne Convention or the 1996 WIPO treaty, it also demonstrates that the Copyright Office is little more than a self-perpetuating bureaucracy... because a copyright certificate is not proof of present ownership of the rights. Unlike, say, a car, a purchaser is not obligated to report a change in ownership to the Copyright Office for recordation... and neither is a recorded document more than hearsay as to any actual change in the ownership of a right.

  Contrast that problem to filmmakers' rights in the European Union, and you'll begin to see that what US copyright law grants in substance it tends to take away in procedure (except, that is, if you're not a starving artist, but the rich patron thereof) — especially when improperly imposing work-for-hire agreements.

• And now, from an Apple-hostile tech-savvy guy who has soldering burns from building computers before there even was an Apple, a sarcastic comment on the iPhone 4 antenna problem. (Those of you who worship Steve Jobs can go get another cup of coffee now.) Bluntly, this reflects over thirty years of a fundamental problem: Steve Jobs can learn only from the obvious mistakes that others make, but is incapable of learning from his own mistakes. Apple has never figured out that one of the major barriers to adoption of its products and memes over time has been its mandating of standards inconsistent with existing standards; to name a few, the 140kb 5.25" floppy, the spiral-formatted 3.5" floppy (with no hardware eject button), the single-button mouse, QuickTime, and on and on and on. Conversely, every improvement that one can really point to has resulted from taking advantage of somebody else's mistakes; the 8088 (instead of 8086) fiasco, which led directly to the "graphic friendliness" of early Macintoshes because Apple chose to use a processor that had a full-width bus, is just one example.

  In this instance, the mistake that Apple is making — and has been a hallmark of the iPhone from the beginning — is emphasizing design (by arrogant SOBs with no visual difficulties) over function. Yes, Apple products have tended to be "more attractive" (if you're not a steampunk fan) than corresponding *nix and Windoze products; sometimes that design has actually led to better usability. I can't deny that the iPod Shuffle has significantly better usability than my non-Apple-equivalent Philips MP3 player of otherwise similar capability. But in this instance, the design came first, requiring a kludge with the antenna in the first place. What does it really say when your product works better out of the box with duct tape, Steve?

  Whether this is a true inability to learn or mere ego is beside the point; the effect is the same. And it's one of the reasons that there are no Apple products in this household. You can pry my command line from my cold, dead keyboard... and then I'll just reboot back to the command line anyway, so give up. Hell, I'm typing this on a straight-text processor with no WYSIWYG features other than line-wrapping, and my margins aren't even set like the blawg's are — and I don't have to remove my fingers from the keyboard to do anything.

Labels: arts, copyright, culture, internet, military, politics

link to: 12:04 [GMT-6]

• But I suppose that's better than the antics of some of the people who aren't in Congress, but think they should be. Not much, though: Insanity isn't much of an improvement over willful blindness. Ultimately, the real problem is that the Mad Tea Partiers are each individual King Canutes, demanding that the tide selectively cease to overwhelm their own personal sandcastles. (That those sandcastles were made with tools that, in turn, were made possible only by the various bits of progress of the past few centuries seems to have escaped them entirely; there's that willful blindness again...) They don't particularly care if someone else's sandcastle gets sloshed; they're paying no attention at all to who owns the damned beach; and, most ironically, they're spending their time and effort protecting something that they can't even live in for the long term anyway... because while they're busy holding back the tide, their castles are crumbling as they dry out in the sun (or from washed-up tarballs).
• So Goldman Sachs is going to pay a half-billion-dollar fine to the SEC for its deceptions in CDO marketing — the largest ever fine against a brokerage. On one hand, this is a good thing: It is certain; it condemns behavior that many have claimed was just "being smarter and getting caught up by circumstances"; and it allows the SEC to move on to others. On the other hand, though, the amount is grossly inadequate, as it does not appear to represent even the entire firm profit from related trading and market-making, let along revenues (the proper measure for a fine)... and as the proportionality of the fine ossifies over time, as they always do, it will end up being treated as a mere cost of doing business, structured into the risk calculations on Wall Street. That last point seems to me to be critical, and I predict that this sausage will turn around to bite us all in the butt within a decade, as that cost of doing business gets factored in to even riskier behavior ("the net present value of our potential SEC fine is calculated as follows:") — despite the insufficient controls in the financial regulation bill, which is still better than nothing.
• And then there's the former governer of this fine state (of confusion, of insanity, of affairs — take your pick). The more that comes out about this, the more I'm reminded of the opening cartoon above. I did not put my butt on the line all those years ago to protect politics as usual; and the soldiers, sailors, and airmen over in Southwest Asia deserve quite a bit better than that. In short, corrupt politicians are insulting our war dead, wounded, and survivors. At least the obscenity ruling, striking down the FCC's "fleeting expletives" rule, might allow broadcast of the wiretaps... eventually. (And notice that this is an equal-opportunity sausage, with material from both of the major unprofessional, self-interestedly-biased insults to journalistic integrity in Chicago!)
• You can find me at the library (HT: The Puppetmistress). But then, you've always been able to find me at the library. Now look at your grades... OK, look at your law school grades... OK, I'll admit to not studying in the library much at any time... Nor ever looking like a male model...

Labels: culture, jurisprudence, politics

link to: 13:18 [GMT-6]

• Sigh. Yet another "plagiarism"/"copyright infringement" suit involving Harry Potter has been filed, this time in the UK. Leaving aside statute of limitations problems — the allegedly infringing book was published a decade ago — this reflects yet again the difference between "idea" and "expression." This is one of those times that I suspect that Bloomsbury UK wishes that Feist was the law in the UK...
• Here at the U of I, there's a roiling controversy over the "firing" (technically, nonrenewal of an adjunct professor) for alleged "hate speech" stated in the course of a class on Catholic religious doctrine. Leaving aside academic freedom issues for a moment, just what kind of speech do you expect to find in a class on religious doctrine? Anybody with two brain cells to rub together — a purported requirement for entry at the U of I, even in ACES and the B-school — has to know that the one thing that all religious doctrine has in common is that it's flawed, idiosyncratic, cranky, and hostile to the Other. Even purported "religions of peace" have disturbingly bigoted aspects of their doctrine. In short, it goes with the territory; and studying religious doctrine fairly means being exposed to some pretty despicable source materials, too. Try actually reading Leviticus 25:44 and not finding hate speech in it. And since Leviticus is part of the sacred text of all Abrahamic religions, there's hate speech in all of them. Inherently. You can't avoid it.

  Then there's dogma itself. Bluntly, all religious dogma serves a critical secular purpose: Ensuring the continued power of the priestly caste. Historically, the most common means of doing so is the condemnation of non-adherents of the dogma... which usually constitutes hate speech. That is not to say that studying religious dogma and doctrine is useless; indeed, it's a critical step toward understanding the way others think. One of the classic examples of how this can lead to bloodshed is not Hiroshima, but Nagasaki — which occurred because those who received the Japanese surrender offer after Hiroshima did not understand that the Emperor's person was sacred in Japanese religious doctrine, and therefore did not understand that the Japanese were — within the bounds possible for Japanese negotiating in English at the time — offering their unconditional surrender.

  So the U of I screwed up. The instructor probably screwed up, too, because he probably should have learned to preface every damned remark — even in e-mails — with "Catholic doctrine/dogma holds that" instead of ever leaving a statement from dogma unadorned as if it was true. And the oversensitive student(s) screwed up; if dogma is hate speech, don't take it out, out of context, on the individual trying to explain dogma, but on the origin. That's right, Ratzy: You propound hatred. Just like every other theocrat and would-be theocrat.

• I find myself agreeing with a Frenchman about French when he proclaims, "French is a 'fossilised language,' which is uncool, associated in the global mind with an aristocratic elite and defended by ageing bureaucrats terrified of linguistic evolution." He neglected to note that it's associated with losing to the speakers of my native tongue, but I guess that's OK this close to the seventieth anniversary of the fall of Paris and this year's World Cup debacle. Schade.
• This headline says it all:

  Emergency Motion: Lawyer's Wife Unwilling to Accommodate Request to Give Birth After Deposition

  I particularly like the judge's order, playing along with the straight presentation.

Labels: censorship, civil rights, copyright, law practice, politics, publishing

link to: 13:36 [GMT-6]

• Nikki Finke writes at Deadline Hollywood:

  Both [new Hollywood/TV/media] editors are veterans of The New York Times but have zero showbiz expertise. Because we all know that it takes no special knowledge to cover Hollywood, right?

  <SARCASM> Right you are, Nikki. Just like it takes no special knowledge to describe legal developments in and around Hollywood. </SARCASM> Like not misstating the scope or effect of a British Columbia court's preliminary determination of a "poison pill"'s validity on the takeover battle for a studio; or not misconstruing the ridiculous, unethical complaint filed against Mark Toberoff by Warner (et al.) over the Superman rights battle; or any of the other pervasive errors of legal meaning that you, and your colleagues — and they are your colleagues, however much you try to pretend that you're different — at Variety and THR and the LA Times and TMZ, continuously commit... and thereby mislead both your readers and yourselves.

  I'd snidely mutter "grow up" or something like that under my breath, but we are talking about H'wood here.

• I'm also going to pick a bit on an agent for a misstatement... or, rather, the failure to include a definition. Rachel Gardner, in trying to help authors understand that not every rejection is, well, a rejection, says:

  If I get, say, 400 to 500 queries a month, and I can only say yes to a couple of them, there's a really good chance that there are perhaps dozens of amazing, worthwhile projects in there. I still can’t take them all on. The numbers don’t work.

  It's a supply and demand issue. The supply of good writers outweighs the demand for them.

  (emphasis in original) Well, no. It doesn't... unless one is constricting the definitions of "supply" and "demand" and "good writers" inside the horribly cramped, unrealistic frame of "as perceived by the actual decisionmakers — including S&M, accounting, etc. — at publishers, most of whom do not actually read the works in question." If one accepts that frame, then the statement begins to make some sense.

  The problem with Ms Gardner's failure of definitions is twofold. First, and most obvious, it equates the demand at this step in the process — demand by publishers for works by authors — with demand for the writing itself, which must necessarily include the demand by the reading public (and all of the other intermediaries, like H'wood, and bookstore distributors, etc.). If this was an actual equivalence, there wouldn't ever be such a thing as a surprise bestseller or surprise bomb.

  Second, and more subtly, it assumes perfect competition with perfect information... because that is the fundamental requirement for supply and demand to be at equilibrium. One of the seldom-acknowledged corollaries of the equilibrium assumption in neoclassical economics is that the farther away from equilibrium a given transaction occurs, the greater the probability that nonreplicable, nonrational factors are acting to influence the price and quantity (or even existence) of that transaction. Whether there is anything in publishing — let alone an entire transaction, and not even trying to imagine publishing as a whole — that comes even close to qualifying for equilibrium is an open question at best. Publishers certainly do their best to prevent authors (and agents) from having adequate, let alone perfect, information; when's the last time a royalty statement showed even as much information about actual marketing expenses as appears in a net-points reconciliation out of H'wood?

  My point here is that the good writing is the only thing in the author's control. If good writing was all that mattered, we wouldn't have "James Patterson" and Dan Brown et al. and Stephanie Meyer leading bestseller lists, and Thomas Harris wouldn't have been allowed the shenanigans he got away with for the most recent Hannibal Lecter novel, etc., etc., etc. That said, the author simply cannot afford to worry about those factors not in her control: Instead, as Don Maass implies (but, sadly, doesn't explicitly say), the solution to having problems with getting published is to write a better book.

• Much as it pains me to support anything from the empire of Evil (and its battalions of Stromtrüppen¹), sometimes they do something good for freedom... like challenge the prudery of the FCC on so-called "fleeting expletives." The Second Circuit ruled today that:

  As these examples illustrate, the absence of reliable guidance in the FCC’s standards chills a vast amount of protected speech dealing with some of the most important and universal themes in art and literature. Sex and the magnetic power of sexual attraction are surely among the most predominant themes in the study of humanity since the Trojan War. The digestive system and excretion are also important areas of human attention. By prohibiting all “patently offensive” references to sex, sexual organs, and excretion without giving adequate guidance as to what “patently offensive” means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive. To place any discussion of these vast topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment.

  Fox Television Stations, Inc. v. FCC, No. 06–1760 (2d Cir. 13 Jul 2010) (PDF), slip op. at 32. This does not mean that, on the upcoming anniversary of his death, George Carlin's notorious seven words routine can be broadcast in prime time. It damned well should; Pacifica Foundation was wrong even when it was decided, cf. Cohen v. California, 403 U.S. 15, 16–18, 22–26 (1971), and — as the panel points out while saying that it can't overturn it — it is even less applicable now, see Fox TV, slip op. at 15–18.

  So maybe we can let Janet Jackson's boob rest for 0.6sec now. Which leads one to wonder a great deal about exactly what the FCC should have been doing with its time and money... such as some actual bloody oversight of self-dealing and other abusive practices by media magnates.

1. As in Strom Thurmond. And the multilingual puns. What's scary is that it took less than two seconds to go from typing "empire of Evil" to that thought...

Labels: censorship, civil rights, jurisprudence, mass media, publishing

link to: 14:30 [GMT-6]

• More news on the UK libel front:

  The new Conservative-Liberal Democrat coalition government has jumped on the bandwagon, promising a new bill by early 2011. Procedurally, this would take precedence over Lord Lester's bill in the House of Lords, which has just survived its second reading (equivalent, roughly, to getting scheduled for hearings in committee in the Senate). On one hand, it's good to have the government join in, because a sponsored bill would have considerably greater chance of passing, and would pass more quickly. On the other hand, nobody knows what the government would actually put into the bill... and as the Tory backbenchers (and their shadowy financial benefactors) have historically, and even recently, been the biggest personal beneficiaries of the crazy libel system in the UK, I remain uncertain how much reform will actually be in the government's bill.

  This will matter a great deal to authors. It will concern not just those who publish in the UK, but those who publish in the US (like Rachel Ehrenfeld. Bluntly, if your work can be accessed from the UK — on the web, via overseas purchase, even (arguably) via piracy! — your work potentially implicates the insane UK libel system. And it implicates you.

• OK, girls, stay out of the hottub if a Hollywood director offers you champagne and quaaludes: Swiss refuse to extradite Polanski. There is no good here. The continued extradition attempts and refusal to dismiss — at the request of the victim, no less — reflect a rather disgusting institutional failure of the LA District Attorney, and (IMNSHO) violate ethical guidelines that apply to prosecutors. Conversely, what Polansky did was wrong, and I make no excuses. I'd proclaim "a pox on them both," but I know what that's actually referring to, and it's inappropriate given the context of a sexual assault on a thirteen-year-old girl.
• Analogy of the day: Mel Gibson is to Hollywood today as Ezra Pound was to publishing in the middle of the last century. Discuss.
• General Kagan's responses to goofy written "follow-up" questions demonstrate to my satisfaction that she's no Harold Carswell.
• More dragon diary entries. Mmmm. Tasty.
• Judge Gertner has drastically reduced the Tenenbaum piracy verdict, from $675,000 to a tenth of that. Plus costs, which were probably around $15,000, give or take. Plus the inevitable motion for attorney's fees, but that will fail under the Fogerty analysis as interpreted in the First Circuit (which puts inordinate weight on the deterrent-effect factor). Now, before y'all on either side of the situation get your panties in a twist, consider this meme that is underlying the reasoning of Judge Gertner's decision:

  No noncommercial copyright infringer should be effectively bankrupted by engaging in socially accepted piracy.

  which I don't buy. This is, in a sense, a "too big to fail" argument flipped on its head. If there had been a mere error of judgment as to right involved, that might be relevant in this instance; instead, though, Judge Gertner substituted her own judgment of what is an appropriate measure of statutory damages for Congress's. That I think she still reached a close-to-right result — on a tabula rasa, I think $30k all in would have been about right — just demonstrates that the statutory scheme adopted in 1976 and modified (upward, always upward) a couple of times since then needs a substantial, zero-based reconsideration. Her opinion isn't a "bad" opinion, in the sense of being lawless, or anything like that; it is just an opinion that wilfully ignores a premise, and that's a bad thing for the next case that comes along that has to consider similar — but not identical — circumstances.

  Professor Goldman makes some further sensible comments on the underlying assumptions, and points out that this is as much a matter for civil procedure geeks as it is for intellectual property nerds. As it happens, I'm sort of both (only sort of, because I don't have "Professor" in front of my name... which seems to be a preliminary qualification). And on those grounds, I think Judge Gertner's opinion is a perfect example of reaching a defensible result, in this particular instance, with dubious reasoning that will itself be misapplied in every other attempt to do so. The short version is that she looked far too hard at Fed. R. Civ. P. 1:

  These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.

  and forgot that "the way to justice" is through application of the rule of law... because justice is imperfect, particularly when both parties objectively and subjectively believe that they're in the right. I make the following three predictions:

  1. The ruling will be overturned in substantial part on appeal, either by the First Circuit or the Supreme Court;
  2. Congress will abrogate its responsibility to pay attention to the flaws in the system that the ruling does, correctly, point out; and
  3. During the appellate life of this matter, Judge Gertner's ruling will be miscited and misconstrued in at least 5,000 distinct instances, at least 100 of which will be in court filings and/or decisions, and at least 100 of which will not concern copyright in any event.

  which, I think, fits well with Professor Goldman's well-considered conclusion:

  Given its questionable doctrinal analysis, I think this opinion is best viewed as a judicial nullification (the analogue to jury nullification, but done by a judge). The judge essentially concludes that copyright law goes too far, and the judge decides not to countenance that. Nullification isn’t normally within a judge’s toolkit, but I can understand the judge’s sentiment. The bad brew of an aggressive copyright lobby and pliable politicians have created a copyright legal scheme that often conflicts with mainstream norms about fairness. It’s not surprising to see some smart folks balk at this scheme, no matter how clear the statute is.

Labels: arts, censorship, civil rights, copyright, intellectual property, jurisprudence, mass media, politics

link to: 12:06 [GMT-6]

It's not just scientists who get mad this way, though: Consider authors — who start out mad — being told that they should be satisfied with the "honor" of being published in venues that nobody has ever heard of...

• The Atlantic offers eight theories on why college students study fewer hours each week. Some of the theories make sense, in particular the lower language requirements and the ability to find information more quickly via the 'net than in libraries. However, the list just plain missed the four most relevant reasons:
  • More students are in non-latinate bachelor's degree programs, which are more "practically" than academically oriented (and therefore require less study time and rigor). At the U of I, that's reflected in the obscene growth of the business school's enrollment (proportionally) compared to arts & sciences, while engineering has proportionally held constant. Bluntly, there's simply less study required for classes in marketing than for classes in political science, or chemistry, or literature at the same "level," because the nature of the subject matter considers fact and method more than it does analysis — and you get the former from the professor's lectures and class discussion, not from deeper outside reading.
  • The rise of the so-called "objective" examination means that, for classes intended for non-majors in any event, the depth of understanding and preparation to get an acceptable grade (whatever that is) is less than when one expects to be confronted with essays... and required to justify those glib answers.
  • Professors tend to assign fewer primary sources and more secondary sources. In some ways, this is a good thing: A lot of primary sources are polemical pieces of crap, even more so than secondary sources — particularly in anything related to examining cultural imperatives. For example, one can adequately discern and discuss Hitler's antipathy toward Jews without reading (badly translated) rants from Mein Kampf; and many of the scholars producing such secondary works actually do a better job than do most commercial translations (I'm thinking, in particular, of two recent "translations" of Clausewitz that utterly miss the point, because neither translator knew didly-squat about the imperatives of military leadership). In many ways, though, this is a bad thing, because it overemphasizes reliance on unverifiable expertise. Whether it's good or bad, it's different.
  • But the most obvious reason is the rise of advanced placement. Back in the day, I invented the AP biology syllabus and course for my school; I was the first-ever AP biology test-taker not just at my school, but in my school district (or, for that matter, in three of the four surrounding districts... and there had been exactly one, the year before, in the fourth). I also took two other AP exams (chemistry and calculus) — which, according to someone who studied that sort of thing, made me a severe outlier among public-school students. These days, though, even farming-community high schools here in East Central Redneckistan offer three to five different AP courses at minimum, accompanied by commercial study aids that did not exist in the 1970s, and virtually all college-bound students take at least a couple of them. This matters to the subject of the article in The Atlantic because many of the most "study-intensive" courses are those that are now eligible for AP treatment, and in fact fairly routinely managed through the AP process rather than in college.
• If you, or someone you know, needs to consume medical marijuana, the City of San Francisco wants to help you get a regularized therapeutic dose of mind-blowing (not to mention nausea-suppressing and pain-ameliorating) tetrahydocannabinol efficiently, safely, and without attracting kids to your medication-delivery systems... via the time-honored tradition of issuing regulations on how to make "therapeutic" brownies.
• And now, some publishing follies. I'm purposely burying this sausage deep in the platter, because it's going to result in some ire and accusations of ire. As a preliminary disclosure, I do have personal knowledge of some of the problems in question, having been consulted by victims.

  Night Shade Books, one of the bigger small presses in speculative fiction publishing, is in trouble for being noncommunicative and screwing authors. This is not news; I have records going back four years demonstrating similar (if less pervasive) conduct, regardless of the self-serving bullshit served up by the publisher as an excuse. The key problem is this: Night Shade, regarding its business practices, appears to have long operated in a "we can do no wrong" world of its own; that ranges from contract negotiations to royalty payments to refusal to play the distribution games demanded these days to poor quality control of the physical merchandise. This brouhaha represents a competence and attitude problem on the business aspects of being a publisher (not ill will, not editorial incompetence, not sheer stupidity... problems endemic enough in publishing, which Night Shade has mostly — but not entirely — escaped) combined with an abject refusal to acknowledge valid criticisms (definitely a problem endemic to the entire entertainment industry). That Night Shade has even gone so far as to issue that self-serving bullshit press release puts it above its peers... but that is still not acceptable.

  Ultimately, the source of the problem is inadvertently revealed early in that bullshit press release:

  While we’ve faced the same difficulties every small and independent press has suffered in this age of sales downturns, higher-than-expected returns, and other challenges, what has caused us the most trouble have been our successes. Night Shade has grown faster and more uncontrollably than we had any idea how to handle. What started as two guys shipping books out of a garage now consists of a full staff working out of an office in San Francisco. We’ve shuffled around a lot of our responsibilities, but in many ways, we’re still figuring this out as we go.

  Really? How can any level of returns be called "higher-than-expected" these days?¹ How can one excuse problems caused by adding the nth staff member by ignoring the problems caused by adding the (n–1)th one? In this age of downsizing in New York publishing, how can anyone implicitly claim that there's no pool of expertise available to help with the "figuring this out as we go"? No, this is just arrogant PR bullshit; and it fails to acknowledge other deeper, longstanding problems with publishing in general, with Night Shade's own business practices in less general, and with those who've consulted me over the years in particular. Who still haven't been paid, I might add.

• Meanwhile, we're paying man-children playing a game invented to keep active during Massachusetts winters more than the entire publishing category's take for speculative fiction authors.

  Also from the world of sport, though, an Englishman has made the World Cup final — the farthest any Englishman has gone at the World Cup since 1990 (a problem that bears disturbing similarity to the attitude of Notre Dame toward championships in college football). This is particularly appropriate for another reason: Spain v. Netherlands may need a lot of policing, given the temper tantrums of players on both teams and the history between the nations.

1. I won't bore you excessively by repeating all of my objections to the returns system. I will note, however, that the continued shrinkage of the "independent" bookstore segment — I remain immensely pissed off at the loss of Pages for All Ages in this area — combined with increasing ability to use the 'net to find materials directly, makes the continued existence of the big distributors even less justifiable, whether from an antitrust perspective or in mercantilist economic terms. (Comparative advantage doesn't enter into the picture here, because books are not fungible, or at least not purely fungible.) The root of the economic problem is not publishing itself, but how books make their way from the publisher to the actual purchaser; and it is absolutely certain that Night Shade's operations have been adversely impacted by a broken system. The loss of those independent stores means that the casualties of a wholesale change (pun intended) — the big distributors — will be those who deserve to be casualties, because they're either causing the problems or are mere arbitrageurs.

Labels: culture, intellectual property, miscellany, publishing, sport