link to: 11:04 [GMT-6]

• DC performances of Hamlet should be interesting. Especially in the original Klingon.
• Here's yet another attempt to revisit the Whorf hypothesis that fails, utterly, on two counts. First, it never acknowledges Whorf's own revisions of his theory; instead, it relies on the "strong" form presented in that notorious, largely preliminary MIT Review article (PDF), let alone revisions and fine-tuning by others. Second, it focuses solely upon the exclusionary aspect of the weak form of the hypothesis ("Language characteristics strongly influence perceptions of reality"), while ignoring the inclusionary and presumptive aspects: It's not so much that the absence of a generic concept of "snow" (allegedly) in Inuit prevents its native speakers from accepting that there such a thing as plain old "snow," but that repurposing of terms within communities prevents both consideration and communication. For example, consider "patriot"... particularly in the wake of 9/11. Or consider whether OMG, leetspeak/txting is ruining the language... or is even "new" (a century ago, cryptographers kept different frequency tables for the telegraphic and ordinary written forms of most European languages!).
• There's one type of work that should appear only in electronic form, not in print, and it appears that the editors of that kind of work just may have caught on. The third edition of the OED may appear only electronically. Multivolume, nonnarrative reference works have never belonged in printed volumes constrained by the physical limits of contemporary printing technology and layout memes; for example, many definitions in the OED itself should be in multicolumn form to follow the parallel threads, but the work is already printed in multiple columns, so that's viewed as inappropriate.
• The president of the RIAA laments that copyright isn't working. Umm, maybe his perspective is just a little bit warped... by the patron/author problem. Note the sense of ownership behind everything Sherman says? The problem is that the RIAA is not the owner: It is a mere transferee/rightsholder, not the author of the recordings. For that reason alone, one must discount Mr Sherman's remarks. In terms usually applied to debates on race and discrimination, Mr Sherman — and the RIAA — lack authenticity for their viewpoint. Which, now that I think about both the historical and present treatment of "black music" by the industry, may be a little bit too close to the bone.

Labels: arts, copyright, culture, miscellany, publishing, science

link to: 11:16 [GMT-6]

• Sometimes people defending the rightness of their parasitism should just shut up in their own self-interest. The item I noted a couple of days ago on PW's new pay-to-play review program for self-published writers (see Writer Beware's blog entry) has resulted in a response from a proponent of pay-to-play... and it reads even more like a defense of selling snake oil than one might expect. As quoted at GalleyCat,

  In the literary world, free (poverty) seems to have been the only criteria for integrity. Yet, people happily pay doctors and lawyers for a diagnosis — plenty of conflict there to enourage clients to come back for more. What critics of our pay for service miss is what they accept about lawyers and doctors — namely that reputation means a lot to a professional — and the path to your door will grow weeds fast when you prove to be a sellout.

  In a way, this is a slick comparison. But it fails at a fundamental point: Neither marketers nor publishers are professionals. Unlike for doctors and lawyers, there's no regulation; no ability to exclude for ethical violations, and indeed no enforceable code of ethics; no measurement of acceptable result independent of revenue streams; etc., etc., etc. Once again, this is not just apples and oranges, but apples and orangutans... and this time the orangutan is giving the visitors at the zoo the finger by redefining "professional" to mean "someone who gets paid to do x" while simultaneously importing the reputational benefits of "professionalism" without any of the long-period-of-training-and-regulated-conduct baggage. OK, it's not baggage: It's the entire game, because it causes "professionalism."

  The less said about the focus on "branding" in preceding quoted paragraphs, the better. Remember that the modern concept of "branding" is, at its root, an outgrowth of anticounterfeiting law arising among silversmiths in the East End of London, and of the concept of authorship and artisanship that arose before mass production. Ms Sutherland's concept of ethics seems at least as divorced from reality; or maybe she just needs to watch Mad Men more often and pay attention to the products that Don Draper and colleagues are pushing.

• As a related issue, just fining companies for Astroturfing reviews is probably not going to be good enough, but it's a start. With a mere fine, and particularly a fine reached in a settlement, the amount of the fine is just a cost of doing business... for both the marketing company that gets fined and its clients. It seems to me that we've been here before... and maybe Mr Trudeau didn't learn anything from being prosecuted.

  My point here is that the economic meme that "enlightened self-interest leads to improved economic activity" silently assumes that (a) all self-interest is enlightened, not criminal; (b) "more transactions" is necessarily an "improvement"; and (c) only economic mechanisms are appropriate for dealing with economic failings. Since not one of those assumptions is either sound or valid, maybe that's just one of those religious imprecations we can do without. After all, as the next item implies, not all economic self-interest expresses itself in the profit motive anyway...

• Here's a shocking, shocking revelation: Relief efforts after Hurrican Katrina devastated New Orleans were disproportionately focused on already affluent areas, not on those requiring the most effort to bring them up to that same standard. And here I thought our aspirations were for "life, liberty, and property," not "life and liberty as expressed in property."
• Just like law — and publishing and entertainment; "&" is not the same thing as "and"! — economics twists standard-English terms into technical terms. As one example, consider "efficiency"... or, better yet, don't, because the economic concept of efficiency is merely a time-independent, closed-system-only, entropy-free variation on the Carnot efficiency calculation that necessarily bears little resemblance to real economic systems. At least in thermodynamics, one admits that there will be heat loss...

Oh, did I forget to mention that sawdust — pardon me, powdered arboreal cellulose — is insoluble fiber useful in maintaining regular gastrointestinal function? It's a feature, not a bug (although consuming chitin probably has hidden health benefits that Mr Trudeau, as linked above, could expound upon).

Labels: intellectual property, mass media, politics, publishing, science

link to: 10:28 [GMT-6]

• First up, the "It's Money That Matters" aspect of copyright and intellectual property. Here, one finds yet another in the long list of laments on how are musicians going to get paid, anyway? It's got several graphics that violate just about every rule of good graphic design in general and are candidates for Edward Tufte's hall of shame: the false 3-D perspective, the excessive use of gridlines implying data precision where there is none, and the very existence of multiple data sets in Figure 2. And the analysis is nothing to cheer about, either, as it focuses solely upon recorded (as opposed to live) music; fails to distinguish between performer and writer; uses a radio-based measurement metric; and, perhaps most egregiously, draws its data set from the 1990s, what the article characterizes as "a simpler time" (which, in non-music-industry language, means "absent long-term viability of independent labels"). This essay gets a C- on the second day of school.

  But that's better than the other offering. To begin with, consider this quotation from the opening of the article, which represents both the article itself and its source all too well:

  The struggle to control and monetize intellectual property is hardly a new one for publishers and other content creators, but it is one that is constantly evolving. With an ever-changing set of technologies for creating and distributing content, users tend to create new norms and come up with new ways to circumvent intellectual property law faster than publishers can find ways to stop them.

  Michael Baumann, "A Copyright Battle for the 2010s" (01 Jul 2010). Given the source — a trade rag/'netization from Dun & Bradstreet — it shouldn't be too surprising that the article already has dropped itself to the C- category by conflating "publisher" and "content creator." It relies upon the CCC as a source on user perceptions (not even remotely valid)... and then, instead of actually discussing methods of "monetizing" content, as implied by the article title, it turns to a stealth endorsement of weak DRM plus an education campaign. The battle is not about copyright; it is about copying and getting paid for it, a second-order inquiry well beyond the scope of any of the sources cited in the article. This is a D paper, although since it was over summer vacation maybe the author expected to get an easier grader.

• Have a few back-to-school annoyances:
  • This is a college town. Why, then, does practically nobody — and I'm including the two big-box office supply stores — stock college- or narrow-ruled paper products? There are about seven times as many college students (not to mention all of the adults) as third-graders-and-below around here. Even the campus bookstores do a poor job... and the less said about the dearth of quadrille (graph) paper available for notetaking and lab use, near one of the leading engineering schools, the better.
  • The Pilot Razor Point has disappeared from stores. Sharpies don't cut it for note-taking — the ink takes too long to dry, it soaks into the paper too much, and the pens run out too quickly — and the alternatives are worse.
  • I'd rather share a parking lot with Asian students just learning how to drive in the US than with the local version of soccer moms. Or, for that matter, with the idiot who designed the traffic signalling and sightlines on North Prospect (hint: not everyone drives a suburban assault vehicle or 4x4 pickup, so setting up stop lines and government-owned greenery and signage to create blind spots for sedans isn't too bright).
  • There are worse things than Wal-Mart. Many, if not most, of them are so-called "main street" stores. That's not to say that Wal-Mart, and other big box retailers, have no problems; it's only to say that they're not replacing paradise... and that's before getting into the whole Peyton Place problem with knowing too much about one's customers (such as the pharmacist who casually mentions the teenage daughter's birth-control prescription/supplies over the back fence, not realizing — or caring — that said daughter got that prescription because she's smarter and more responsible than her seventeen-years-older-than-her parents).

    The relevant inquiry is not whether Wal-Mart is better/worse for the customers and business environment than some hypothetical, never-attained vision of Rockwellian paradise; it is whether it is better/worse than reality. Or has nobody ever thought about the base/post exchange and commissary system and its relation to the surrounding communities? I thought not.

  • Laptop/notebook makers need to pay a great deal more attention to battery life and keyboard usability than they do to offering 5.1 surround sound or internal BluRay discs, particularly for machines aimed at students.
• Random House and Wylie appear to have settled their e-book rights dispute. As I mentioned at the beginning of the tempest in a teacup, I'm quite displeased with both of them; I don't view this as a victory for either side, except insofar as it enables both of them to move on to other issues. Contrary to the spin being placed on things by RH and its apologists, this is nowhere near definitive.
• Meanwhile, PW's new ownership has demonstrated that it has no more journalistic (or other!) integrity than did its predecessor media conglomerate with the new pay-to-play quarterly "special edition" coverage available to self-published authors. If it's a "processing fee," as characterized by PW itself, $150 seems very, very high — it costs a maximum of £75 to enter a feature film at Cannes (in a timely fashion), and most major film festivals cost less or nothing, in a situation in which there is real "processing" to undertake.
• Peter Schaffer perhaps unjustly "accused" Salieri of complicity in Mozart's death. It's still a great play/film... and more psychologically and culturally plausible than physicians arguing over a two-centuries-gone corpse.

And now, off to see Dr Oren Scrivellum — DDS. If I were a real shark, I'd ignore it; let the damned thing fall out; and wait for its replacement to slot in. I'm not.

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

link to: 11:45 [GMT-6]

Today's sausages are exceptionally chunky on this first day of school for both remoras. Now I have the house back during the day! But these chunky sausages come with more than the usual disclaimers.

Surprised?

• Several disparate stories on internet rights have some implications for 'netizens that may escape a quick glance. First, an Argentinian court has denied a libel claim based on search results... which marks a considerable change from ordinary practice in Latin America. It may also be a recognition of reality under the SPEECH Act, which would prevent a successful claimant from enforcing a judgment in the US against the search engines, because under First Amendment principles truthfully pointing someone to x does not vicariously import the content of x for libel purposes. (It may for other purposes, such as copyright infringement, or unauthorized disclosure of classified information, to name two live issues.) Of course, this still turns on defining the meaning of "true" and "false" in context in a defamation action.

  Next up, the fight at recess over 'net neutrality is turning into a Sharks v. Jets encounter, but without the musical score. Some groups (like the Creature That Devoured Nashville) are urging special treatment, not neutrality, for music... while they're still not equitably distributing their fees to captive artists. Meanwhile, competitors are filing objections to the NBCU-Comcast transaction. This is much more an instance of "the enemy of my enemy acts like my friend" than anything else — Earthlink's notorious silent censorship (and origin) make it not a friend of free speech and/or open competition.

• The second chunky sausage revolves around the availability of written works. One of the more-seemingly inane bits of gristle arises from Stieg Larsson's lover's refusal to turn over the fourth Millennium Saga manuscript on the grounds that Stieg would have been displeased with the way the world has treated the first three books. As crazy as that sounds, it reflects a certain sense of ownership well beyond that of copyright law, which certainly doesn't have universal acclaim... even after considering the source of that piece (both directly and indirectly).

  But just making the haystack available for searching with a magnet doesn't mean that you'll find a useful needle — just that you'll find some piece of ferric or otherwise-magnetized metal in there. That's what Google Book Search does, and some scholars are quite displeased. There's a fundamental reason that this matters: The limits of language-based searching. Even more than in scientific inquiries (let alone the social sciences and humanities!), the quality of the question determines — not just influences — the quality of the response in a natural-language search. For example, compare the search results for a common misquotation of 1984 with those for the correct quotation:

  • "He who controls the present controls the past" (wrong)
  • "Who controls the present controls the past" (right)

  and note that even many of the responses to the correct quotation refer to the incorrect version!

• And the third chunky sausage — and the chunks are even more dubious than usual — turns on copy distribution. Over across the Pond, there's a price war going on over e-books; authors, now do you understand why a "net receipts" basis is just another way to avoid paying you? Meanwhile, two collections of egotistical tyrants continue to fight to control B&N while the underlying business model continues to fail, if not for the reasons that the publishing press would have you believe: Changes in law and communications (especially, but not just, the 'net and FedEx) have made consignment operations in nonlocal markets legally dubious and economically untenable. In short, it's the returns system that's killing bookstores... even though it's supposed to operate to their benefit.

  Combine this with the loss of economies of scale in the distribution of copyrighted material and things get really, really interesting. One implication — and it's on balance a good thing — is that "management consultants" will no longer be in a position to come in and either asset-strip (as Burkle wants to do formally at B&N, in opposition to the more-subtle effort that the Riggio family has been engaged in for years) or apply nonjudgmental, numerical-predictor models as the only criterion for successful management in the entertainment industry. That's not to say that the profit motive is going to go away; it's just that the entertainment industry (even more than the automobile industry!) will demonstrate that it requires actual judgment to maintain long-term success, not numeric models drawn from dubious datasets by B-school denizens with no knowledge of the underlying math. (Hint: Leaving aside the GIGO problem, divide-by-zero is still undefined, even if your spreadsheet implies that you can cancel it out against something else most of the time.)

  I suppose that's better than trusting art dealers, though, which exposes the next level of inquiry: What kind of judgment matters? Unfortunately, I don't have a good answer for that one... which is precisely the impetus for the numerical methods that try to take judgment out of the decision-making process.

• Zombies have more civil rights and protection from unlawful arrest than do Canadian teenagers. And more (or at least better-written) academic interest, too. Discuss.

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

link to: 10:47 [GMT-6]

This is a surprise?

• Now here's a copyright/trademark lawsuit about Harry Potter that actually makes some sense: A Swiss company's "Harry Popper" condoms have drawn the ire of Warner Brothers.
• In an English-language piece bearing remarkably few translation artifacts, Der Spiegel discusses a book asserting that perhaps the nineteenth-century industrialization of Germany arose from a lack of copyright, and thus failure to pay the authors. That, however, makes little sense; at that time, the author's typical share of proceeds was much the same as it is now — about one eighth of the purported selling price — and Heinrich Heine's comment illuminates what is really going on:

  Heinrich Heine, for example, wrote to his publisher Julius Campe on October 24, 1854, in a rather acerbic mood: "Due to the tremendously high prices you have established, I will hardly see a second edition of the book anytime soon. But you must set lower prices, dear Campe, for otherwise I really don't see why I was so lenient with my material interests."

  That is, line-item maximization was alive and well in 1850s Germany... as was the problem of fighting the last war, which was a critical element of Clausewitz's Vom Kriege published during that period.

• But then, sometimes writers get some measure of vengeance. It's not just limited to TV, either; the Tuckerization of real persons (named after speculative fiction fan Wilson Tucker) occurs apace, oft without prior notice... as when both the remoras and I got blown up on page twenty, which sort of balances the acknowledgement in a rather sick way.
• Speaking of author compensation, some authors seem to be doing reasonably well... which is a fascinating counterpoint to the median first-novel commercial fiction advance of about $6k.
• What's more disturbing: That someone registered "Delicious" as a trademark for shoes, or that it's going to require a trial to determine whether the "unsophisticated consumer" would find Victoria's Secret's freebie shirt-thingies confusing (PDF)?

Labels: copyright, intellectual property, miscellany, publishing

link to: 11:32 [GMT-6]

• It's not about art (most of the time). It's not about censorship (well, most of the time). It's about H'wood's antiquated business model, which has remarkable parallels with the problems facing print publishing (periodicals and otherwise) and music.

  The publicly traded companies that have the economic power to change models are not interested in doing so... and therefore continue to grasp the existing model. That's true whether we're talking about butts-in-seats cinema box office receipts or consignments (the returns system). The publicly traded companies continue to have that market power because they're (improperly) involved in both distribution and creation... particularly for display devices (not just e-readers, but the iPod/MP3 player, etc.). Oh, for the days of antitrust enforcement against excessive vertical integration that went out with the Reagan administration...

• Just as there is no single, unified, overarching "publishing industry" or "film industry," though, there may be no single, overarching "economy". Economics is an example of the classic logical conundrum: a necessary condition that is not, in itself, sufficient... which leads directly back into Mr Kay's piece.
• Lost behind all of the shenanigans in HP's boardroom over the last few years is something much more pleasant: HP's research group in Palo Alto has been well on its way to becoming the 21st century equivalent of mid-20th-century Bell Labs, doing critical basic research that will — in a few years — become parts of systems we can't do without. One of those areas is, naturally, mathematics. (You're surprised, given HP's venerable history with scientific instrumentation?) Now an HP lab researcher claims that P ≠ NP ... which, if his proof is validated, is going to have immense effects on digital communications, face- and object-recognition software design, and other implications I can't even begin to focus on (and not just due to my NDA, either).
• Perhaps Lord Acton should have been a psychologist (if they'd had them then), rather than a witty politician: According to an item in the WSJ, power does corrupt. I will pause to allow laughter at and examination of the breathtaking irony of this piece appearing in a publication affiliated with Fox News.
• From the department of "lawyers with too many unbillable hours on their hand still trying to make partner," there's the lawsuit filed by Buy More Best Buy against a priest over his "God Squad" sticker... which highlights one of the more idiotic parts of trademark law. Unlike copyright, trademark is a defend-it-or-lose-it right; that is, failure to defend a trademark against every potential infringement can lead not just to ridicule around the edges, but loss of the mark itself. The problem here is that some lawyers seeking to seem useful interpreted "defend" in an expansive manner when a letter to the priest congratulating him on his sense of humor and asking him to change the color scheme of the sticker to avoid any confusion would have been good enough. OK, I think I've just found the other problem: It assumes a sense of humor... both at Best Buy's management and in the legal profession. At least one of those assumptions is really, really dubious — even more than sausages generally are.

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

link to: 12:25 [GMT-6]

• In the name of trying to reconcile incompatible viewpoints, op-ed columnist Ross Douthat only adds to the xenophobia surrounding the proposed mosque near Ground Zero. His basic position appears to be that the origin-blind, "constitutionalist" (his word) view of America and the English-first, ancestry-matters "cultural" (again, his word) view both have valid concerns regarding the proposed mosque; he eventually takes a left turn toward the Twilight Zone, but eventually stops just short:

  Too often, American Muslim institutions have turned out to be entangled with ideas and groups that most Americans rightly consider beyond the pale. Too often, American Muslim leaders strike ambiguous notes when asked to disassociate themselves completely from illiberal causes. By global standards, Rauf may be the model of a “moderate Muslim.” But global standards and American standards are different. For Muslim Americans to integrate fully into our national life, they’ll need leaders who don’t describe America as “an accessory to the crime” of 9/11 (as Rauf did shortly after the 2001 attacks), or duck questions about whether groups like Hamas count as terrorist organizations (as Rauf did in a radio interview in June). And they’ll need leaders whose antennas are sensitive enough to recognize that the quest for inter-religious dialogue is ill served by throwing up a high-profile mosque two blocks from the site of a mass murder committed in the name of Islam.

  (fake paragraphing corrected) Of course, that ignores the context in which Rauf — who would be the administrative and spiritual leader at the proposed mosque — made those statements and/or ducked questions. Worse, it makes the fundamental error of lumping all of Islam together; in doctrinal and cultural terms, that's the equivalent of lumping all of Judaism and Christianity together — and I mean all, both "religiously" and otherwise — in the course of explaining "religions of the Bible" to an adherent of the Greek religion. And that is the problem here: A mosque in that location — regardless of the leadership's views — is no more or less an imposition on the legacy of the victims of a political incident of terrorism than would be a Reformed synagogue near Golgotha. Instead, it degrades the memories of the victims of 9/11 to be so inaccurately bigoted... or have we forgotten so quickly that centuries of anti-Semitism in Europe (and Arabs are also Semitic) used the same damned arguments?

  Admittedly, I'm one of the more radical assimilationists: I believe that time and the Constitution do a more than adequate job of assimilation into a society that is founded on the concept of dissent and difference as a strength, not an obstacle to the rule of kings. If we no longer accept the inscription on that statue in New York harbor, we should just send the damned thing back. Too, all of this debate assumes that so-called "places of worship" should have any privilege of any kind; I'd be much more concerned with, say, a new BP management complex on the shores of the Gulf of Mexico as being an insult than I would with a mosque I'll never attend a few blocks from the World Trade Center site.

• Branding matters in the arts. Just try valuing previously unknown negatives attributed — or not — to Ansel Adams. Or, better yet, try finding someone to authenticate those same negatives.
• In something that shouldn't surprise anyone in this workout-crazed culture, here's some anecdotal support for the idea that hard books are good for your brain. Actually, any book that makes you think at all is good for your brain; there's plenty of evidence that reflective engagement is one of the best ways to delay, or fully avoid, senility and other late-life loss of cognitive function. Whether Jonathan Franzen's book qualifies is yet to be seen; Michiko Kakutani thinks so, but her track record on what she likes has been somewhat less reliable of late than her dislikes.
• The mind boggles at the implications of a disturbing security breach at Universal Studios. Only in H'wood would this happen... and/or be a story if/when it did. Hint: Before comparing this to Homeland Security, perhaps you should remember a few episodes of The West Wing, or maybe ask a few questions on how twelve-step programs get handled on and near military bases.
• A few musings on female heroes and their physical representation that would definitely not pass muster at an RWA convention... which is, on balance, a good thing.
• I've always thought that "tax-bracket creep" referred to particularly loathesome IRS agents, but here's a postmodern spin on how tax brackets should be calculated.

  I have a somewhat more-radical solution: Eliminate the concepts of brackets, but not for a "flat tax" — for a tax based on a relatively simple function between limits. That opinion piece criticizes the number of tax brackets as being from the nineteenth century, without acknowledging that a tax system that appears more like a nineteenth-century table of logarithms has deeper problems than the number of digits shown in the mantissa. Further, a disturbingly high proportion of eventually disallowed deductions and other dubious tax-avoidance (which is legal; tax evasion is illegal) behavior occurs at the bracket boundaries. Eliminating the concept of brackets — except at the extreme limits — would eliminate this peculiarity. And in this day of umpty-eleven different tax-preparation programs and even a working IRS system that "calculates your tax for you" online, we don't need to rely upon tables to determine taxes anymore in the first place.

  But I'm in favor of greater progressivity in taxation anyway, including eliminating most nonprogressive taxes such as "sales taxes" and imposing asset taxes at times other than death. Taxes are the price of civilization, and I don't think anyone can legitimately claim that we've got an excess of civilization... particularly since it takes civilization to make externalities possible in the first place.

• If you think determining the contours of an author's rights under US copyright law is a frustrating process with no clear answer, just be glad that droit morale (moral rights) are seldom at issue Over Here. What this really points out is that copyright is not an all-encompassing legal rubric for the rights (and, to an extent, responsibilities) of creators of expressive works.

Labels: arts, civil rights, copyright, intellectual property, miscellany, politics, publishing, science

link to: 13:22 [GMT-6]

• Ownership of art stolen during wartime — whether via "expropriation" by governments or retail theft by soldiers — is an emotional issue with immense implications for copyright law, cultural validity... and civil procedure (PDF). My bottom line is simple: This particular manner of corrupting the chain of title is seldom, if ever, completely hidden from the so-called "bona fide purchaser for value" — art collectors and museums either do considerable prepurchase/postpurchase investigation or refuse to do so because they're afraid of what they'll find — and even so, replevin (return of the actual physical item) is still the appropriate remedy for stolen unique property against a bfpv. And where the piece was literally taken as unlawful loot by soldiers, there's even less excuse. However, foreign courts simply will not accept that (exhaustion requirements are excusable when exhaustion would be futile); and, therefore, I think Judge Gould (and Chief Judge Kozinski) are wrong in their dissent pragmatically, on a policy basis, and on the text (and contextual meaning) of the statute.
• A story in WaPo on selecting pseudonyms completely neglects one of the most common (and most disturbing) reasons that authors publish under a pen name: Tracking software makes an existing author name no longer commercially viable...
• ...at chain stores like Barnes & Noble. I'm no fan of the Riggio family's management of B&N, but the alternative being offered by investor Ron Burkle is worse. And that leads into the dubious land of takeover fights, poison pills, and management's "duty" to consider offers for a company, where short-term shareholder valuation too often seems to be the only measure of a business's viability.
• Two opposing reactions out of H'wood disclose something rather disquieting, but not at all surprising. The WGA wants the 'net regulated by the FCC and strictly neutral, while most of the other trade organizations and guilds oppose FCC guarantees of 'net neutrality through regulation. This isn't just a fight over "regulation," or even over "'net neutrality," though; it reflects the medieval/renaissance patronage structure of H'wood far more than anything else.
• On the international law front, it's becoming easier to learn about international law of human rights, thanks to an online summary of sources, while at the same time, overdue indictments for the Srbenica massacre have finally issued. John Yoo will not be pleased.
• Also on the human rights front, there have been some questions raised about how standing works (or doesn't) in the Proposition 8 case. Judge Walker's well-structured denial of the motion to stay by the proponents (PDF) properly points out that the proponents may have a lot of difficulty showing appellate standing in front of the Ninth Circuit. That leads to an obvious question, though: If they don't have appellate standing, why would they have standing in the trial court? Basically, that comes down to a longstanding (as in several centuries!) preference in the common law:
  • Whenever possible, matters are to be tried on their merits. Had the intervenors not come forward, there would have been a default judgment against Proposition 8, which would be bad for everyone. This way, Proposition 8 got a defense. However,
  • The judgment that issued was not against the intervenors, but against the State of California. Thus, the intervenors are not legally aggrieved by any aspect of that judgment... and therefore don't have appellate standing.

  I would have argued against the intervenors' standing in the trial court, too, but that's as much a policy and court-relationship-to-other-branches issue as anything else; it's messy; and if Judge Walker had denied standing only to be overturned, he would have had to do the trial anyway. And, naturally enough, those proponents have had time to file a 75-page "emergency motion for stay" in the Ninth Circuit... which doesn't sound like much of an emergency to me.

  Ironically, much of the law on appellate standing in this area comes from lawsuits that found that "mere taxpayers" did not have standing to challenge government actions that, in the eyes of those taxpayers, violated the Establishment Clause (or, in a couple of instances, the Free Exercise Clause). Hoist by their own petard; it couldn't happen to a more-deserving example of odious bigotry.

Labels: arts, culture, internet, jurisprudence, politics, publishing

link to: 12:01 [GMT-6]

• One of the major debates on Government concerns the independence of subordinate units. In the US's federal system, states have considerable autonomy, but are not truly independent. Some advocates of "states' rights" mistakenly cling to 17th-century notions of "sovereignty" (from a time when the concept of nationalism and sovereignty was still being worked out, later imported into the 18th-century Articles of Confederation and Constitution without adequate consideration of the preceding century) and advocated far greater independence for the independent states, with only a very loose supervision at the next-higher level. That sounds positively feudal; or, perhaps, positively European.

  Why should writers and artists care about this? For starters, writers and artists are citizens, so they bloody well should care what their own governments look like. Too, historically freedom of expression has been more likely to be enforceable under a stronger central government, rather than a loose confederation (which is not to say always, or even most of the time!). But the key aspect is for their works, particularly for anyone whose writings/creations have any aspect of governance at even the periphery: All of those pseudomedieval/pseudofeudal secondary-world fantasies; all of those spy thrillers in postcolonial/postwar nations; all of those space empires; etc., etc., etc., need to both maintain some sense of plausibility and take advantage of what the real world offers. Adding a little consideration of why new nations choose presidential or parliamentary systems of representative democracy (PDF) (for some value of "democracy"... and, for that matter, of "representative") might help, too.

  And for isolationist Yanks, even the extreme right's screeds against non-US sources of law cannot prevent those sources of law from existing, and influencing expectations. I suppose, though, that's the point of isolationism... presuming it has one.

• Not all isolationism is bad, though. In particular, isolationism regarding foreign attempts to suppress speech is a good thing... and that's one way to look at The SPEECH Act, which was signed into law by President Obama (H.R. 2765, Pub. L. No. 111–223, codified at 28 U.S.C. §§ 4101–05). The contrast with the previous sausage is purely intentional, since many of those worst-offending nations could learn from the US experience — especially the parliamentary nations, which almost uniformly put undue limits on free speech.
• Lee Goldberg makes a cogent point about H'wood hitmaking that applies equally to publishing:

  So The Glades has more viewers than Entourage, Hung, and Mad Men... and yet isn't drawing anywhere near the same amount of media attention or adoration. Which, I suppose, may prove it's not how many viewers are actually watching your show that makes you a hit... it's how many people in the media say that you are one.

  (typography corrected) A cynic might ask the same question about books, such as whether there's any correlation whatsoever between a certain Big Six publisher's radio ads for contemporary suspense novels and sales thereof; or conversely, whether we should treat Tolkein with more commercial respect than "James Patterson" (as some unaudited numbers seem to indicate...). However, unlike H'wood (and even the music industry), publishing doesn't publish its sales figures... not even unaudited.

• A contrast in lists of authors from odious, non-inclusive sources: A blog at the antiscience (and antispeculative fiction) HuffPo lists 15 "overrated" writers, while a blog at the antireality PW lists 15 (and then 60) "underrated" writers; and both lists are drawn from the same basic marketing category: Contemporary realist quasiliterary fiction, with only a couple of items outside that limitation. It is quite apparent that neither blogger has much knowledge of books that would not ordinarily be considered publishable by FS&G. And that's not a slap at FS&G; it's only to note that FS&G is probably the one publisher whose reputation — justly or otherwise, as it also publishes this guy's novels — is that of a "post-MFA literary novel" house. Wait a minute, though: "That guy" taught fictionwriting at Stanford before going to law school... even if his novels are as much alternate-history Chicago as they are anything else, with the most memorable repeating character being Kindle County itself.

Labels: arts, civil rights, culture, miscellany, politics, publishing

link to: 15:16 [GMT-6]

• In yet further proof that he doesn't know anything of which he writes, Professor Fish op-eds at the NYT on plagiarism, claiming that "Plagiarism is not a philosophical issue." In this, he's flat wrong... and he reaches this conclusion via an argument from inadequate exemplar. The example Fish chose to purportedly illustrate all plagiarism is the copying of a passage in an academic work of nonfiction, which he characterizes as a purely professional offense (and, therefore, not a "philosophical," by which he means "moral," issue). Leaving aside that violating professional standards is a philosophical issue, there's an obvious problem here: He chose the least-likely-to-illuminate exemplar, because one of the other coordinate professional standards is that academics are not supposed to self-identify with their work. Conversely, however, most nonacademic creators — whether we're talking about Fish's own op-ed, the dubious creativity of schlockbuster romance novels or cookie-cutter teen lit, or of a creative work closer to some core of creativity — plagiarism involves a form of identity theft. Identity theft is a moral issue, not just a professional transgression.
• From the department of "means less than it seems to mean," Dorchester announces a shift away from returnable mass-market publishing for its line of originals, going to an e-book first/POD trade-paperback later model. Leaving aside for the moment whether its contracts allow this, it does make some sense for a niche publisher (and perhaps for other niche projects/publishers, too). However, it is as much a reflection of the financial reality and payment delays in publishing as anything else; basically, Dorchester's finances have gotten precarious enough over the last three years that it can't pay the printer for 5,000 copies and then get paid for 2,000 by bookstores a year later, along with the returns. In short, this isn't about e-books; it's about the returns system.
• From Bob's Country Bunker, we've got both kinds here: An unrepentant wrongdoer and a politically motivated prosecution thereof. Two wrongs don't make a right. Lerach's conduct was unacceptable. It was also unexceptional, particularly among the insurance-defense bar. Meanwhile, a Harvard professor tried to scare an ABA meeting by proclaiming that "Clients are beginning to consider the quality of the work product delivered, rather than being satisfied simply because a named partner with an impressive pedigree promises that he's 'on top of it.'" Yeah, that's going to go away just as soon as the corporate clients are satisfied with an Avalon instead of a Lexus.
• On the basis of this dubious trademark case (PDF), perhaps the People's Front of Judea might have a case against the Popular Front of Judea...
• Thanks to squabbling among the children and alleged attempts (denied, of course) by some of the bullies to gang up on everyone else, the FCC has ended facilitated negotiations on network neutrality. So, I suspect that what the children are going to get instead is more playground monitors — the exact thing that these talks were "supposed" to avoid in the first place. Well done, everyone! Those short-term interests sure look a lot better now, don't they? And, as Professor Grimmelmann notes, this isn't exactly isolated behavior.

Labels: culture, intellectual property, law practice, miscellany, politics, publishing

link to: 12:08 [GMT-6]

• I'm a little bit late in noting this, but Professor Baron's fascinating blog Language Log has an interesting article that actually documents the history of the futile attempts to impose a gender-neutral singular pronoun on English. I would add that I'm aware of a few other attempts... several of which, due to the philological ignorance of their proponents, actually traced back to strongly gendered constructs in other European languages (such as "hir"), thereby undercutting their own points. Such as they were: If females can be genderless before marriage and gendered afterward in German (das Fräulein, die Frau) without preventing a woman from being prime minister, perhaps — just perhaps — there are other linguistic battles that would be worthier of attention... such as the distinction between accident (no fault) and mishap (fault not yet determined) that too much coverage of BP's recent adventures in the Gulf of Mexico seems to have missed.
• Two contrasting items on art and culture from The Grauniad: There's an impending auction of Lehman Bros. art scheduled for the end of next month (one wonders just how many motions to enjoin are going to be filed...), while the paper also notes a festival of steampunk and steampunk art to take place in Lincoln.
• The value of the Enlightenment remains somewhat uncertain. As Mr Mokyr notes, it didn't result in brotherhood or equality; it only set the stage for freedom; instead, it just made Western society rich. One could argue, though, that it was a legal and economic perception that led to that last point, not the Enlightenment itself: Prior to the mid-seventeenth century, individual wealth was measured almost entirely by the amount of land one's family owned, and it was virtually impossible to transfer land to anyone who did not already own substantial amounts thereof. A century later, however, wealth was measured as much in cash flow and bank accounts as in land, and land transfers to the previously unlanded were, while not precisely routine, largely unremarkable. Although land ownership remained a prerequisite to voting in much of Europe, that concept was crumbling in England and the Germanies, leading in turn to a politically active and powerful urban population to counterbalance the rural landowning families... and eventually to such family entertainment as the storming of the Bastille.
• In sort of a converse to the previous sausage, the IP Finance Blog muses on university logos, low-wage (overseas) manufacture, and brand identification. I sort of doubt that purveyors of children's books will even read the piece... but they should.
• Over at IPKat, intrepid correspondent Neil Wilkof ponders if BePress just might have a better subscription model for academic journals. I have to give that one a resounding "no", for a very simple reason: Not everyone who might benefit from material in academic journals — and, in particular, law journals and history journals — even has an "institutional affiliation," which is an essential prerequisite to using the BePress system... which, if anything, reinforces the ivory-tower problem.
• Uh oh. Jim Hines is trying to make a nuanced appreciation of the e-book v. self-publishing v. commercial publishing quagmire. Break out the torches and pitchforks, everyone: There's heresy in there, no matter what your views might be! And on top of it, he's demanding some context for statistics! Get him!

  This sausage sponsored by the same people who proclaim that 12% of net will result in greater royalties for authors than 12% of list... for the same damned book.

• All telemarketers must die. Or, perhaps, cold-call this guy. (HT: Professor Froomkin)

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

link to: 11:29 [GMT-6]

• The New York Times Magazine has posted a long — probably too long, as there's quite a bit of repetition and fluff in it — article on BMI's system for extracting licensing fees from recorded music venues like bars, restaurants, strip clubs, etc. It's not a bad article, but it does completely ignore the elephant in the room: The black box that is used to allocate the billion dollars coming in to BMI annually to the individual songwriters and/or recording artists. Instead, the article merely notes that "The songs and compositions written by BMI signatories number some seven million tunes — about half the music in America — and bring in close to a billion dollars per year, which is distributed to its artists in quarterly royalty checks" — and that's it.

  The real problem is that the sliding-scale for artist fees actually creates a conflict of interest for BMI, in favor of paying larger proportions of the incoming revenue to "bigger" artists... and BMI (and ASCAP, it's "competitor" — but that's for another time) uses methods more appropriate to the 1960s in determining allocations. And by "more appropriate to the 1960s," I mean both in terms of methodology and preferences... and law, particularly given that BMI is in the (dysfunctional) Sixth Circuit.

  Here's an example of the problem: Consider Bob's Country Bunker, which pays a hypothetical $800 PRO license fee to both ASCAP and BMI. In the space of one week, The Blues Brothers and The Good Old Boys both have shows there. Although both bands play an exactly equal mix of ASCAP and BMI music — and each plays two pieces from songwriters who are with neither PRO — the allocation of fees for those shows would be identical... and probably not one dime would reach several of the songwriters, particularly for works that have been in the respective PRO catalogs for less than three years or so and/or get no radio airplay. For that is one of several dirty little secrets: Radio playlists and sampling (with a considerable delay, too) still dominate the allocation formula, whereas many clubs and restaurants that do something other than "just tune to a radio station" make an effort to choose thematically consistent pieces that do not get much (if any) airplay, and particularly material from local bands. In publishing terms, it's as if a publisher formally used a formula based on the New York Times bestseller list to determine how to allocate royalties to authors... and the less said about the accuracy and national validity of that piece of garbage the better.

• Here's something to frighten xenophobic antiimmigration activists (who are pretending that the vast majority of their own ancestors were something other than illegal immigrants... without warrant): They're acting just like the French, including lace ruffles, stinky cologne to cover their collective failure to bathe, and snooty accents.
• There's a fascinating piece on the Vatican's inept, probably in violation of international law handling of the priest-abuse situation at The Economist, but it does not go nearly far enough. Just like with any other theocratic institution, I would offer the Catholic Church a choice: You are either a religious institution, with all of the attendant First Amendment and cultural rights (and responsibilities and limitations) associated with religious institutions, or you are a foreign power, with all of the attendant diplomatic and cultural rights (and responsibilities and limitations) associated with foreign governments and their officials; you may not be both. Choose now and thereafter act consistently with that choice.

  Of course, I wouldn't limit it to the Catholic Church; I would offer the same choice to the Church of Jesus Christ of Latter Day Saints, etc. And the Church of Scientology can choose between for-profit corporation and church, just so it doesn't have to choose something inconsistent with its purported doctrine. My position is that religious institutions must interact with the polity in an internally consistent way; they don't get to play by their own rules when their actions (and omissions) end up as the proper interest of the polity. My actual preference is to do away with any special treatment for organized religion at all, but that argument (at least in the US) was lost over a century and a half before I was born; I accept those rules, but demand that everyone play by them if they're the rules.

• Sarah Weinman offers a clear, intelligent analysis of the Richard Price rebranding situation, typical of her usual thoughtful work. Contrariwise — and also typical of his work — Taylor Antrim blathers forth on the purported renaissance of the novella without once citing a work outside his preferred publishing category of "literary fiction"... and thereby ignoring the continued health and vitality of the novella in other publishing categories, many of which (such as the one cited at the top of this sausage platter, or any of these three older pieces, of similar subject matter) are considerably and objectively superior to any of the works listed by Antrim.

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

link to: 16:18 [GMT-6]

• Equality is always supposed to be good, right? How about debates concerning a book that advocates greater economic equality as a foundation for a stable society — shouldn't access to those debates also be equal? That's the fundamental problem with what the authors of that book propose: Access to peer-reviewed journals (both for authors who want to publish in them, and for readers who want to follow the debate) is most emphatically not equal. Many of those journals are, essentially, vanity presses — that's exactly what a "page fee" is. Too, few peer-reviewed journals in any field, and particularly not in the social sciences, have online presences... meaning, in turn, that a reader who wants to follow the debate must ordinarily have access to a decent university library, because those journals sure as hell aren't going to be on the shelves at a public library or at B&N or Borders.
• You may have heard of "patent trolls" before — companies that buy up patents for the specific purpose of suing on the basis of the patent. One notorious example has been the "SCO rights to *nix" litigation covered at Groklaw. Now, in an entirely predictable development, meet the copyright trolls!
• Congratulations General Justice Kagan. That beeping sound you hear is a truck backing up to your office with approximately 1100 open petitions for certiorari (requests for cases to be heard by the Court) that you will need to read, be familiar with, and vote upon in about six weeks... and more will be coming in tomorrow. Then there's preparation for oral arguments in early October. And your impending duties as the supervising justice for a Circuit Court of Appeals, which will be assigned by Chief Justice Roberts in the next few days (if you're lucky, you'll get the First and/or Federal Circuit... if you're not, you'll get the Sixth).

  Plus all those rumors about you will, no doubt, interact with the appeals of Perry coming toward you with the inevitability of a glacier. A glacier with fangs and automatic weapons.

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

link to: 16:13 [GMT-6]

There is going to be a lot of analysis forthcoming on why the result is or is not right, and does or does not signal the end of Western civilization. There will be lots of sound and fury in tales told by idiots, ultimately signifying nothing... on all sides of the issue. It's not going to be pleasant. So, instead, I'm going to point out why this decision probably cannot be overturned without severe judicial activism — because Judge Walker is a smart judge who knows how to craft his findings of fact.

That's right: The key insulation for Judge Walker's conclusions is not his legal analysis, but his findings of fact — and, specifically, his findings on credibility of the evidence offered by proponents of Proposition 8 (the "one-man-one-woman-only" amendment to the California state constitution at issue). Here's a sample:

As explained in the credibility determinations, section I below, the court finds the testimony of Cott, Peplau and Badgett to support findings on the definition and purpose of civil marriage; the testimony of Blankenhorn is unreliable. The trial evidence provides no basis for establishing that California has an interest in refusing to recognize marriage between two people because of their sex.

Perry v. Schwarzenegger, No. 09-2292 (PDF) (N.D. Cal. 04 Aug 2010), slip op. at 15. Similar passages appear throughout the findings of fact (e.g., at 20, 24, 49, 53)... and the standard to overturn the trial judge's credibility determinations in a bench trial is so high that it's going to be even tougher than one might otherwise expect to overturn this one.

Judge Walker does not stop there, though. His rather thorough evisceration of the qualifications and analysis offered by the two "experts" called by proponents of Proposition 8 is closely tied not to personal preferences, but to core case law and the rules of evidence. The amusingly dry discussion of Blankenhorn's purported "expertise" and "analysis" sort of made my day... but I always like seeing self-righteous bigots disassembled in print. Then he follows his credibility analysis with an exemplary set of findings of fact, with direct citations to specific parts of the record to enable later reviewing courts to see that he did his job — which will only make it harder than usual to overturn his factual findings.

Of course, all the facts in the world will not help in the trial court if the law says otherwise. This is actually the most difficult part of the opinion to read, beginning at page 109 of the slip opinion. The critical part begins on page 116, under the following inflammatory — but justified by the findings of fact — heading:

PROPOSITION 8 IS UNCONSTITUTIONAL BECAUSE IT DENIES PLAINTIFFS A FUNDAMENTAL RIGHT WITHOUT A LEGITIMATE (MUCH LESS COMPELLING) REASON

At this point, any punches that Judge Walker had pulled through polite legal language began to land anyway... because he waded squarely into the Barnette/Gobitis morass on the side of Barnette, by citing Barnette for the proposition that fundamental rights are not subject to a vote,¹ and concluding that

As explained in detail in the equal protection analysis, Proposition 8 cannot withstand rational basis review. Still less can Proposition 8 survive the strict scrutiny required by plaintiffs’ due process claim. The minimal evidentiary presentation made by proponents does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest. Proposition 8 cannot, therefore, withstand strict scrutiny.

Slip op. at 117. Judge Walker rather subtly shifts the blame for any horrifying results onto the lawyers for the proponents of Proposition 8. Although this won't protect his own career prospects, it adds another layer of insulation to the opinion itself.

What I like in particular in this opinion, though, is a subtle passage that — while simultaneously respecting the law as it has developed — also attacks one of the problems with the various standards for review of statutes.

Proponents’ purported rationales are nothing more than post-hoc justifications. While the Equal Protection Clause does not prohibit post-hoc rationales, they must connect to the classification drawn. Here, the purported state interests fit so poorly with Proposition 8 that they are irrational, as explained above. What is left is evidence that Proposition 8 enacts a moral view that there is something “wrong” with same-sex couples.

Slip op. at 133. This states the logical problem with the entire structure of rational-basis review. Unfortunately, it is a problem that the Supreme Court has refused to grapple with since the mid-1960s, choosing every time when presented with a challenge to the logical basis for this standard of review to sidestep it out of excessive respect for the alleged good will of the elected branches of government and/or electorate.

In the end, Judge Walker's opinion went where the evidence led him... and although he wasn't so blunt and insulting, the evidence led him to believe that Proposition 8 is nothing more than bigotry as in Loving (the ironically named case in which the Supreme Court struck down Virginia's prohibition on interracial marriage... only about forty years ago). Sheer bigotry not being a rational basis for legislation — let alone valid under any stricter standard of review — his opinion (slip op. at 136) strikes down Proposition 8 entirely.

However, Judge Walker has stayed the effect of this remedy for at least two days, until the plaintiffs can present their rationale against a stay during appeal. Given the strength of the factual record in this matter, I doubt that Judge Walker will himself grant a stay during appeal... particularly as the language of Proposition 8 itself allows for recognition of same-sex marriages that took place in California prior to Proposition 8, it's pretty clear that any "harm" to the proponents of Proposition 8 simply does not meet the standard for staying the striking down of Proposition 8 while Perry is on appeal. And it will be on appeal for a loooooong time: I doubt that there is much possibility of an accelerated schedule in the Ninth Circuit, meaning that the earliest we could reasonably expect an opinion in the first round of appeals is June or July of 2011, and it is more likely to be early 2012.

1. This is an interesting inversion of Barnette. That case held that West Virginia could not, consistent with the First Amendment, punish schoolchildren and their families for refusing to salute the flag and recite the pledge of allegiance, when the families in question were Jehovah's Witnesses (whose doctrine treats the flag as a graven image that may not be acknowledged in that manner). By citing Barnette for the "fundamental rights are not voted upon" issue — and not Lawrence, or Loving, or any of a variety of racial discrimination in schools cases, let alone search and seizure cases with which he is no doubt intimately familiar — he manages to bring in an inversion of the rationale offered by the religious proponents of Proposition 8. If he had upheld Proposition 8, that would have validated imposing a religious value-set through state action... precisely what several of those same religious groups were subjected to in Barnette itself.

   That only a true law nerd would have cared about this in the first place, let alone caught it on first reading of a 138-page opinion, should tell you more than you really want to know. But then, you've read this far already...

Labels: civil rights, culture, jurisprudence, politics

link to: 11:08 [GMT-6]

• Long overdue: a state Attorney General's antitrust investigation of e-book pricing appears to be underway. Now, just maybe they'll do the same for general trade book pricing... or, given this time of year, textbook pricing. I just got a look at the elder remora's probable textbook list for this fall. Gulp.
• Here's one of many stories on the potential/pending sale of Barnes & Noble. Whichever story discusses this matter, you should note that it is based not on publishing, but on two counterfactual assumptions of modern investing:
  • That the proper measure of a company's value to each potential investor is fully and adequately reflected in the price of publicly traded shares; and
  • That the price of publicly traded shares, and consequent differential from initial investment, does not reflect non-specific concerns not relevant to the particular corporation.

  First, let me restate something that should be much more obvious: Securities markets are most emphatically not all-knowing, instantaneously adjusting measures of the objective, real value of a security or what that security represents. If the relatively recent (and repeated!) problems with market valuation don't demonstrate that, just say "Enron" three times fast. More importantly, though, the misuse of market price as a proxy for valuation, with the assumption that the correlation between the two is 1.0 (or even close), fails at a fundamental mathematical level; leaving aside the obvious problem of differing investment objectives, and the corollary problem of entrenching incompetent/backward-looking management, it represents reducing everything to a dimensionless scalar value — and that's bad math, bad physics, bad chemistry, bad economics, bad anything... except, apparantly, it's not considered bad finance.

  This is not a harangue against private ownership, or public distribution of private ownership; it's a harangue against the pernicious effects of treating individual market issues as if they are merely miniature markets in themselves. In short, I'm just pointing out that the parallel distinction between Newtonian physics and quantum mechanics seems to operate in securities markets, too, so we should act like it. Whether that means that B&N shareholders should vote "no" on any particular (and, at this time, hypothetical) merger/buyout offer is a different question entirely; it does mean, though, that the purported "maximize shareholder value" meme is not sufficient justification for any action apparently being contemplated... and, in particular, any action that has potential First Amendment implications. Perhaps markets do a good job in aggregate, but basing management decisions on individual share prices assumes that all things are equal — and as soon as nonfinancial implications like the First Amendment, artistic freedom, etc. come into the picture, nothing is equal.

• The SFWA website has a good article on tools for tracking submissions, an underappreciated part of the business end of publishing for writers. I've been using something like the OpenOffice version for this purpose, and other nefarious ones, for years. And, as a coordinate point, SFWA Treasurer Amy Sterling muses on some other business-of-publishing stuff for writers.
• Even more disturbing than usual sausage-making: the creation and definition of dialects. I don't endorse everything in the piece, but it's an interesting starting point...

Labels: culture, miscellany, politics, publishing

link to: 12:07 [GMT-6]

• Publishers love their protected revenue streams. One of the dirty little secrets of scientific, technical, and professional nonfiction publishing (STP) is the way that publishers profit at both ends: Extraordinarily high per-copy prices for the work, combined with a partly-vanity-press/partly-almost-no-author-compensation model at the other — for work that has largely already been paid for by research grants. Publishers whinge about how expensive it is to produce journals like Science, Nature, Cell, and other thousands-of-dollars-a-year journals; or about how expensive it is to produce single-subject monographs, such as a book on, say, Carbon-13 nuclear magnetic resonance spectrography; and then proclaim that cutting off that revenue stream would hurt scholarly publishing and copyright, without noting that — for the journals, anyway — the fixed and sunk costs are almost entirely paid for out of advertising, sponsorship, and other subsidies.
• It's not much better in trade publishing, where Random House is expecting increasing e-book revenues but won't share them with the authors. If one does all of the math, things are even worse than the AG's claim that the 25% e-book royalty RH is putting on the table (nonnegotiable) is only half the normal equal revenue split, because the AG's calculations are based on assuming that the numbers on cost-sales sheets (aka profit-loss projections) accurately represent the publisher's costs, when they ordinarily overstate costs by anywhere from 10% on up. This is, in part, due to the very nature of a cost-sales sheet: It is supposed to virtually ensure line-item profitability, so estimated costs are biased high. More subtly, though, many of the costs estimated on a cost-sales sheet simply don't exist, thanks to the distinction between mean value (what appears on the sheet — the arithmetic, or simple, mean estimated by taking the sum of all of the last year's marketing expenses and dividing it by the number of line items in that competitive category) and median value (the amount actually spent by the 50th percentile line item). And all of that assumes that the accounting is honest in the first place...
• Conversely, the WSJ offers a history of publishing and intellectual life that, for all its pollyannish perspective and rose-tinted hindsight, does offer a core of truth: publishing is good for economic growth, and it's part of a positive feedback loop.
• Of course, it could be worse. We could be stuck entirely with patron-based funding for the arts (and nonartistic publishing), and end up in Ravinia Saturday night, with a shortened program so the big donors could get dinner on time. That this is taking place in a public facility just makes it worse.

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