link to: 13:15 [GMT-6]

Nerdy Internet Link Sausages

 

Like you're surprised that I'm a nerd, especially concerning the 'net itself?

• Maybe bad scientific awareness is related to bad science reporting (and writing in general). It doesn't help that most "science reporters" are, themselves, barely science-literate (if at all); it doesn't help that their audience is barely science-literate (if at all); it doesn't help that most scientists are barely literarily literate (if at all); and combine these three factors, and one has a positive feedback loop that disproves the impossibility of a perpertual motion machine. Anybody remember "Trees cause pollution"?
• Danica Patrick might want to consider skipping any races in Illinois to help keep her sponsor GoDaddy out of court in Illinois... although after yesterday's opinion in uBid, Inc. v. GoDaddy, Inc., No. 09–3927 (7th Cir. 28 Sep. 2010) (PDF), even that probably isn't good enough. This is a decision on personal jurisdiction that warms my civil procedure nerd heart, both because it's a cautionary tale for the 'net and because the result was so damned obvious. And relies on porn.

  Quick refresher: Personal jurisdiction concerns whether a particular court has the authority to impose its judgment on a particular defendant in particular circumstances (the plaintiff assents to that jurisdiction by filing suit). That requires either two or three things: Either minimum contacts plus consistency with traditional notions of fair play if the contacts are so pervasive or of such a nature that any claim would be proper (general personal jurisdiction), or minimum contacts plus consistency with traditional notions of fair play and sufficient relationship between the contacts and the cause of action that it's appropriate to hear that cause of action (specific personal jurisdiction). Either general or specific personal jurisdiction is good enough, and specific is a subset of general: If one finds general personal jurisdiction, one need not consider specific.

  In any event, GoDaddy is incorporated in Arizona; maintains its administrative operations in Arizona; and, in its customer agreements, selects Arizona law and Arizona courts. (GoDaddy also claims that all of its servers are in Arizona, but this is not correct; it didn't help this time, in any event.) uBid is an Illinois-based 'net auction site that sued GoDaddy for cybersquatting on similar domain names, in Illinois federal court. GoDaddy challenged the personal jurisdiction of the Illinois courts over it, and won in the trial court. Under two similar, but parallel, rationales, the Seventh Circuit reversed, finding that there was specific personal jurisdiction in Illinois courts over GoDaddy.

  In addition to the granddaddy of personal jurisdiction decisions — International Shoe — the Seventh Circuit relied upon two more-recent lines of decisions. The majority (Judge Hamilton and Judge Flaum) relied on a porn feud between Hustler and Penthouse, which concerned whether a libel suit by a Penthouse officer against Hustler could be heard in a New Hampshire court (Keeton v. Hustler); the Supreme Court found in that case that the ten thousand (!) copies distributed in New Hampshire were enough to support personal jurisdiction. The concurrence (Judge Manion) relied on a slightly more general decision concerning actions in one state knowingly and purposefully directed into another state (Calder v. Jones), where the Supreme Court found that such purposeful direction was sufficient to support personal jurisdiction. I was a bit surprised that nobody cited Asahi Metal, the reasoning of which is directly on point and came from an Arizona-based justice (Justice O'Connor), but no matter: The court reached the right decision, finding that GoDaddy's pervasive presence advertising and providing its domain registration services to Illinois residents — including, at least purportedly (because GoDaddy does no verification of customer information), a number of Illinois typosquatters against uBid — was sufficient to support specific (but not general) personal jurisdiction over GoDaddy.

  Why does this matter to authors? Whether using the specific reasoning of Calder or the specific reasoning of Keeton, what we're left with is the conclusion that if one has reason to know that the target of one's expression is in state X, one can expect to defend against any lawsuit related to that expression in the courts of state X. On one hand, this is a fair result, at least in the abstract; it makes sense that if I were hypothetically to call Minnesota's Representative Bachmann an insane bigoted loon, I should expect to be hauled into a Minnesota court (although I have certain other defenses available to me, such as "hyperbole," "opinion," "actual malice," and "truth"). On the other hand, though, the purported "regulation" of the legal profession makes this result fundamentally unfair when applied to individuals: Protectionist "local counsel" rules will tend to screw individual defendants, both substantively and financially, when dragged into court halfway across the country (or even just over a river). Thus, as with all decisions on jurisdiction, there's both good and bad lurking here.

• Why the Comcast/NBCU merger? As Professor Crawford points out, it's the advertising dollars: Comcast's ad revenue last year was higher than the combined total of the top 100 only two decades ago. Don Draper must be smiling. Somewhere.
• Regression toward the mean: It may be a valuable explanatory scientific theory with no realistic alternative, but that doesn't make it a good thing all the time. Although later down the same page on the same blawg, one must wonder if we're regressing toward mean vegetables or merely indicting the way we prepare them...

Labels: internet, jurisprudence, mass media, politics, science

link to: 11:50 [GMT-6]

Very, Very Smart Internet Link Sausages

 

Some today; some looking forward to next week; some not so much smart for themselves as demonstrating commitment to it.

• First, the "genius sausages." Congratulations to the 2010 MacArthur Foundation Fellows — the "genius grants." A cool half million over a five year period, no strings attached, for those who've demonstrated "genius." This year, there's an unusually high emphasis on the arts; but that's all to the good.
• Sometimes small schools are best. Sometimes it's not logistically feasible to break up large schools into smaller ones, even in the same building; that does not necessarily mean failure. In particular, the truly exceptional — at both ends of the achievement spectrum — need a certain critical mass to achieve... except in the absence of others, which may well be worse. It's awfully damned hard to run an AP Chemistry or AP English class with three or four students, and the students simply won't learn as much as in a somewhat larger group.

  The key, though, is how the teacher workload gets managed. Although it's buried in the story, this particular school got turned around not by breaking the union, but by following union work rules... at least on its surface. It would be interesting to see how the workload of grading these longer assignment gets managed; perhaps — just perhaps — teachings assign fewer meaningless repetitive drills...

• On the stupid side of things, it's Banned Book Week. Again. And even them durned furriners have noticed, and not — quite — busted out laughing at the cognitive dissonance between "banned books" and "First Amendment."
• Atheists know more about religious doctrine than do the faithful... and if one digs into the data actually presented, that's true even when equalizing for education level, and especially at higher levels of educational attainment.
• Last for today, next week begins the announcement of the Nobel Prizes. You may be horribly misguided and earn one of these (particularly in Literature, Peace, and the parallel prize in Economics)... but you can't be stupid.

Labels: censorship, culture, politics, science

link to: 12:02 [GMT-6]

Unavoidably Delayed Sausages

 

Anybody want a couple of teenagers? Well, I guess technically I should say a teenager and a college student, since the elder remora is now twenty, and we really don't need to get into the parallel argument about whether the current millennium began in 2000 or 2001, and thus whether the "teenaged years" extend to nineteen or twenty...

• Here's yet another reason to avoid cloud computing, especially for writers: a government push for easier 'net wiretapping. Just stop and think for a moment about material contained in research notes, in the dialog attributed to fictional villains in early drafts... and the difficulty that humans have — let alone that datamining programs will have — interpreting sarcasm on the 'net. And, of course, that need not limit itself to apparent overt statements, either.

  Overall, I understand the organizational impulse to seek more, and more private, information on every person, and to do it as silently as possible. And it's not limited to governments by any means; just what do you think a tracking cookie is? That I understand it, though, does not mean that I defend it, and particularly that I defend its used without a warrant.

• As a more disturbing issue arising from "government efficiency," consider privatizing management of public libraries. Here's the money quote, from the CEO of the contractor in question:

  “There’s this American flag, apple pie thing about libraries,” said Frank A. Pezzanite, the outsourcing company’s chief executive. He has pledged to save $1 million a year in Santa Clarita, mainly by cutting overhead and replacing unionized employees. “Somehow they have been put in the category of a sacred organization.”

  Yeah, that's right: Unions are the cause of the problem, as is "overhead" — usually code in these situations for replacing full-time employees who get benefits with part-time employees who don't, regardless of unionization. Later in the article, the same moron claims that librarians "can go to a library for 35 years and never have to do anything and then have your retirement" — which, given the workload of librarians, is a shockingly ignorant conclusion. I could make the same observation about CEOs... only for them, it doesn't take 35 years to retirement; usually 18 months is enough to get a nice golden parachute with a far higher market value.

  Ultimately, this reflects a fundamental misunderstanding of libraries. By their nature, libraries are not supposed to be efficient; they are, instead, repositories of as much knowledge (and as much fiction!) as possible, not clones of chain suburban bookstores. That's not to say that there's no place for efficiency in libraries at all — in dealing with an increasingly consolidated publishing and distribution system, efficient and consolidated ordering is a necessary pushback — but that unlike many other governmental and quasigovernmental services, elevating efficiency to a high priority is inconsistent with the very nature of the enterprise... just as it is with the military. In particular, one wonders how corporatizing libraries will deal with banned books...

• Speaking of attacking unions, consider The Hobbit — now not filming in New Zealand, or at least potentially so. The problem here is most emphatically not Peter Jackson's treatment of cast and crew; it is New Line's, countered by a union that is trying to impose old-school work rules and terms on new-school production systems. The production companies, as a rule, don't want to share anything with the cast and crew, in the name of increasing shareholder profits by controlling costs. Conversely, the unions don't want to take anything on spec, given the historical probability (and, particularly for this combination of producer and distributor, actual incidence) of fraud to the detriment of everyone.

  The obvious problem is that when no film gets made, there are no profits to share — and not just no H'wood accounting profits. When there are no profits, there is no work for anyone. Ultimately, the existing financial/economic model — with denizens of the Mogul Vale on one side, opposed by a horde of selfish Sackville-Bagginses on the other — simply fails; it was imported from a second-best solution to abuses of factory laborers, and presumes good faith on both sides (and particularly on the part of the unions — since settled) without any evidence thereof.

• As if Harry Potter wasn't enough demonstration that publishing "winners" are built not through consistent, small profits spread across the entire list, but upon blockbusters, the publisher of Stieg Larsson's posthumous Millennium Trilogy reports big revenue gains. This is, in many ways, the industrial counterpart to the item above on libraries, and it reflects a critical fact that is too often ignored: Books are not fungible commodities. If a particular barrel of North Sea light crude, recently spot-priced at $78.14, doesn't satisfy me, I have two choices: Obtain a replacement barrel with the same specifications, or change the specification. The problem with books is that they don't have the same specifications; Morrison & Boyd's textbook on organic chemistry is not a satisfactory substitute for Gutsche's textbook on organic chemistry (the one I used... since Gutsche was my instructor), or vice versa, just as Larsson's trilogy and, say, the short novels of Dashiell Hammett cannot substitute for each other.
• A priceless headline from the BBC demonstrates more problems with economic presumptions: "France's Dati confuses inflation with oral sex." Perhaps this almost literally Freudian slip, though, demonstrates what economic leaders want more than we otherwise admit...
• SFWA's president, in his personal capacity, hones in on one aspect of the Henderson Moment of Madness: failure to admit ignorance. In a larger sense, this reflects a great deal of the problem with punditry in general — the incorrect transference of (relatively) intensive knowledge of one aspect of something into authority in a related, or unrelated, area.

  The Henderson instance is an excellent example, and relates specifically to one of the principle failings of legal ethics: Rule of Professional Conduct 7.4, which prohibits attorneys from claiming to be specialists absent a "certification." Even though they are — and, particular to this little internet brouhaha, there's no question that Professor Henderson is. Bluntly, Professor Henderson's problem is one that is extraordinarily common among both academics and lawyers: He personally identifies with the subjects of his study and with his clients. As a respected scholar on business organizations, Professor Henderson's subjects of study (and clients) are "rich" by most measures... and yet, because he's still himself a "wage slave" and not an entrepreneur, he does not completely share the characteristics of those he perceives as "rich" from his work.

  This is a human failing, and arises from the distinction between group self-identification and the perceptions of that group by nonmembers. Back in my long-ago undergraduate days, I was all too often called a "babykiller" on ROTC uniform days on my relatively liberal campus... it was, after all, only a couple of years after the Church Commission Report and the fall of Saigon. When living overseas, we had problems with the locals assuming that all military officers were Reaganites with one finger on The Button, coming from upper-class backgrounds and interested only in oppressing the masses. (OK, they got one out of three right.)

  In this particular instance, there's a two-way cycle of ignorance. On the one hand, Professor Henderson demonstrated ignorance of what "rich" means in a nontechnical sense (and some ignorance of good prose style and clear communication, but we all have that problem at times). One can argue that he demonstrated ignorance of what "rich" means in a technical sense — economists would classify anyone with his asset base and cash-flow base as inside the top five percent of the domestic economy, which definitely qualifies as "rich" for both general and technical purposes. One can even argue that he demonstrated some ignorance relevant to his professional work... but, again, we all do at times (I've made mistaken statements concerning copyright law at times; I'm a fallible human being). Unfortunately, Professor Henderson's own ignorance was reinforced by the converse cycle of those who do not understand that "rich" is as much a psychological state as a numerical one — just ask Elizabeth Bennet — and who then proceeded to overload the definition of "rich" in a positive feedback loop to his detriment. Much of this comes from the mistaken assumption that "rich" is congruent with "is The Boss and has Minions," but that's an argument for another time; when I was on active duty, I was The Boss and had Minions (hundreds of them), but I certainly wasn't "rich."

  My point here is that ignorance can be fixed, but it seldom gets fixed in the face of personal attacks. In this instance, there's a difference between shopping at Wal*Mart because it's convenient and because it's necessary... or the converse of shopping on Main Street because it's convenient or because one can't afford a car to get to the outlying discount stores, and the bus routes make getting large/refrigerated items home nearly impossible (presuming, of course, that one can afford the bus fare, which is usually more than the cost of a calorie infusion at McZorgle's these days). Thus, both sides lose, because by making things into personal attacks, they lost the ability to educate others on this issue.

• Psssst! If you want to finance a trip to Brazil with your new girlfriend through Ted Underhill's AmEx card number, you can probably purchase it on the web... using a "nontraceable" money transfer system.

I'm going to close with a semieditorial comment. This week marks the annual end of mob rule: The Supreme Court's "long conference", shortly before the Court returns to session on the first Monday in October. This promises to be one of the most fractured terms in memory, primarily because newly confirmed Justice Kagan is recusing herself in so many matters... which, in turn, substantially increases the chance of 4–4 (nonprecedential) splits and controlling plurality (as opposed to majority) opinions on a lot of issues that are less-ideologically-clear-than-usual, such as the minutiae of civil procedure. This may well undercut the Court's authority in the short term, but might actually prove a blessing in disguise in the long term.

The key problem here is that the Court is still not taking a lot of matters that have created circuit splits on matters of substance, primarily because the litigants just cannot get the matter clearly stated and in front of the Court on a reasonably replicable set of facts. For example, the continuing three-way split among the Sixth, Second, and Ninth Circuits on the proper way to determine whether two works are "substantially similar" will remain unresolved for the forseeable future; so, for that matter, will the question of whether the Sixth/Second Circuit approach to defining what a copyrightable interest continues to diverge from the Seventh/Ninth Circuit approach, particularly for derivative works. These are just issues that are obvious/important to me due to my own interests; I'm sure that others would have different lists.

I therefore call on the Court to take a broader view of what matters deserve its attention, particularly when the doctrine and facts are murky and call for real judgment and not just ideological pronouncements. That may be a futile call — nobody expects to return to the pace of calendar year 1946, when the Court issued 139 opinions despite Justice Jackson's participation in the Nuremberg trials, compared to the calendar year 2009 count of 86 matters with opinion, several of which were consolidated. However, the claim that there are fewer cases taken because the law is getting better and clearer is inconsistent with the number of cases filed in trial courts (federal and state) and appealed (ditto).

Labels: civil rights, culture, internet, law practice, mass media, politics, publishing

link to: 11:07 [GMT-6]

Toad in the Hole

 

• Some copyright trials resemble the trial of Josef K; some of them are (quite literally, or at least literarily) the trial of his creator's ghost. Which, I suppose, is a less disturbing possibility than a copyright suit arising from one of Spielberg's weakest efforts — and that's up against some pretty stiff competition.
• Death to the book. Long live the e-book. Or something like that, anyway. What I find most interesting about the whole "e-books will destroy printed books" meme is that it repeats the (lost) battles of the last two centuries — most recently the paperbacks-will-destroy-casebounds battle from the 1940s through early 1960s (which occurred, ironically enough, just before the xerography-will-destroy-periodicals battle of the 1960s and 1970s), and the slightly earlier battle resulting from the almost simultaneous introduction of high-speed web offset presses, automatic mechanical typesetting, and hands-free bindery.

  E-books will undoubtedly change publishing — in ways both predictable and unpredictable. For example, I anticipate that ten years from now, so-called "high-end word processors" will end up operating more like the current generation of DTP software than mere "word processors," at least under the hood... because they already do, if you look back a decade and compare the distinction between Word 2000 and PageMaker 6.5 to the distinction between Word 2010 and InDesign CS5. There will be market casualties — some of them will be deserving, some will not (and not everyone will agree on which is which). But there will be a viable volume-packaged print publishing industry for the forseeable future, for at least some value of "viable."

• An interesting post from across the pond, at the IPKat, considers dangerous intellectual property myths... many of which seem to be not just mythological, but cultural imperatives, for fan fiction. Compare this to Professor Madison's comments on moral rights, endowment effects, and things in copyright; the identity-defect problem underlying Professor Madison's comments also maps disturbingly well onto that discussion of IP myths.

  The identity defect problem is the distinction among what the creator defines as the creation; what actual or potential exploiters define as the creation; what potential owners of the res define as the creation; and what lawyers with no creativity in their tiny, shriveled souls define as the creation. Any defect of identity in this chain marks a point of potential conflict giving rise to myths and/or apparent endowment effects. Consider, for example, The Lord of the Rings, which evolved in its creator's mind from an execise in constructed linguistics and the stories that might have arisen from those constructive linguistics, to the vast array of IP rights claimed by later exploiters (including the creator post-creation), to the vast array of noninfringing homemade Halloween costumes and D&D characters, to... well, you get the idea. Then, too, there's a substantial hindsight bias involved in all of this. Now throw on top of this the independent-creation problem, and the common-source problem (e.g., Tolkein's reuse and recasting of so many character names from various Norse-family myths), and it becomes much easier to see both why and how the various game-theoretic studies referred to by Professor Madison are both illuminating and deeply flawed, and how the various IP myths described by Dr Pinto arise to take on lives of their own.

• Here's a glorious paean to gentrified junk food.

  One cold morning about two years ago, I sat in the window of a McDonald's tucking into a sausage-and-egg McMuffin. It was a bit like sinking my teeth into a small, soft woodland creature with a light dusting of flour; one which thoroughly enjoyed being eaten and responded to each bite by gently urinating warm oil down my chin.

  Now, where did I put that soft woodland creature...?

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

link to: 17:24 [GMT-6]

Disappointments

 

• You know that creative contracts are getting out of hand when opera — which, historically, has the least business sophistication of the collaborative-production arts — starts demanding non-negotiable copyright transfers from everyone. Of course, it could be worse: It could be in the US, in which case it wouldn't even be a matter of contract; instead, it would fall inside the dubious constitutionality of the work-for-hire doctrine. Or would it, since an opera production is not a motion picture <vbeg>?
• Powell's Books helped beat back the forces of darkness at the Ninth Circuit. Yesterday's ruling that an Oregon statute restricting provision of "sexually explicit" material to "minors" is unconstitutional (PDF) should serve as a reminder that the First Amendment means something... and, for the sarcastic, a reminder of lug wrenches (you'll have to search for "lug").

  Anyone for Lady Chatterly's Lover or other literary classics (deservedly so or otherwise) being made into felonies when provided to anyone under 18? How about the Song of Solomon? Or, to take it into the true "harmful to minors" and not just "sex" context that is purportedly behind the statute in question, Hotel Rwanda? My point is this: If one accepts that government has any limits at all, attempted thought control has to be the first on the list of those limits... because someone will always twist the most benign-seeming restriction into something truly obscene. Consider, for the moment, Martin Luther's probable fate under some of the current restrictions imposed by governments on free speech — and not just in places like Iran, either; most of the 93 theses (individually and collectively) constitute "hate speech" under contemporary standards.

• What do the following individuals have in common?

  Lamar Alexander; John Barasso; Robert Bennett; Christopher Bond; Richard Burr; Saxby Chambliss; Tom Coburn; Susan Collins; Bob Corker; John Cornyn; Mike Crapo; Jim DeMint; John Ensign; Mike Enzi; Chuck Grassley; Judd Gregg; Orrin Hatch; Kay Bailey Hutchison; Mike Johanns; Jon Kyl; George LeMieux; Blance Lincoln; Richard Lugar; Mitch McConnell; Mark Pryor; James Risch; Richard Shelby; Olympia Snowe; John Thune; David Vitter; George Voinovich

  Well, it's a pretty pathetic roll of bigotry. They are all United States Senators; none of them acknowledge military service in their official biographies; and they all voted against even hearing debate on the military appropriations bill... primarily, if not exclusively, because it contains a repeal of the wretched "don't ask, don't tell" policy. (And they're all Caucasians, and almost all of Northwest European ancestry, but that's a slightly different problem.)

  A few others also voted to disallow debate, but their experience deficit is not so inexcusable. Scott Brown and Lindsey Graham are least JAGs (not line officers with any idea of what "unit cohesion" means), so they get merely a frown. James Inhofe "served in the Army" and Pat Roberts did four years as a Marine, but their official bios offer no further details; they get frowns and some interservice disdain. John Isakson and Jeff Sessions did the W Plan: Air National Guard and Army National Guard respectively during the latter stages of Vietnam, in an unstated capacity; they get a frown and the directive to "why don't you try that one more time, son?" John McCain is a former line officer (if a pilot and squid, limiting his exposure to "unit cohesion"), so he merely gets the somewhat disdainful interservice rivalry I'd offer virtually all graduates of Annapolis. Richard Wicker was a career USAF officer, so he presumably knows something about "unit cohesion." The rest get water balloons filled with the cheapest, nastiest perfume I can find.

  I don't have a problem with disagreement; that's part of the nature of democracy. I have a problem with refusing to allow debate because you're afraid you're going to lose... on any issue, let alone one like this on which they're simply not qualified to decide in the first place. Yes, we must have "civilian control of the military," and I wouldn't have it any other way (as frustrating as that was at times for me on active duty). But DADT isn't "civilian control of the military"; it is meddling in the bedroom. Methinks they've forgotten the substance of their oath: To protect the Constitution of the United States against all enemies, foreign and domestic.

Labels: arts, civil rights, copyright, military, politics

link to: 11:41 [GMT-6]

Dumb Sausages

 

Today's theme, such as it is, is the stupidity arising from advocating for only part of a solution... especially when it's no solution at all.

• Yet another set of law school deans wrings its collective hands over law schools' failure to teach writing skills sufficient for lawyers to survive in practice. The problem is that it really is the deans' fault...
  • The one course most likely to be ungraded — and thereby blown off — is first-year legal writing. If the deans want to make legal writing count (not to mention make it harder for potential employers to improperly pigeon-hole law students based on the culture shock of the first semester and first year), they'll invert the present policy: Legal Writing and Research gets a letter grade, while the rest of the required curriculum is pass/fail. After all, that's exactly what the bar exam is.
  • Speaking of the bar exam, the deans should support eliminating it. The bar exam (and, for that matter, the end-of-course-100%-of-grade final exam) discourages good writing, and that's the paranoia rite-of-passage event at the end of those three years of law school (two years, optionally, at Northwestern, but that's illusory given the quarter system and the required summer classes).
  • Perhaps most important of all, the deans need to trash virtually every casebook currently in use. The biggest problem with legal writing is that law students see mostly examples of bad (or worse) legal writing in the bulk of their classwork, particularly in the common law courses. In Contracts, students study Sherwood v. Walker exhaustively, and still can't figure out what the holding is because the judge couldn't bloody write (even by nineteenth century standards in Michigan); in Property, even the casebooks try (ineptly, with one exception) to make head or tail of the actual ruling in Shelley's Case; in Torts, the string of double negatives (which can be helpful rhetorical devices when used sparingly, but not in a string) in the leading cases on product/strict liability causes more confusion than anything in the discussion over comparative/contributory negligence; and in Criminal Law, just try reading M'Naghten's Case. More casebooks need to follow the path that Professor LaFave did in Criminal Procedure: Clear, concise summaries, supplemented by extended quotations where helpful... and that California's Justice Mosk did in establishing the concept of comparative negligence by writing more simply and more clearly than did the advocates of the contributory negligence system.

  Instead, though, the deans appear to be looking at legal writing as somehow being taught separately from legal substance; the best example of this is the dean at DePaul, himself a former judge... on an appellate court not famed for the clarity of its writing, particularly on the arcana of Illinois civil procedure. All of the additional "training" in the world isn't going to matter if the students get exposed only to bad writing on the substance, and the concept of the Erie doctrine is difficult enough without trying to learn its limitations from the bad writing in Hanson and York.

  If you value, and want to teach, good writing, use good writing as your source material. While there's a lot to be said for being able to work with bad source material when that's what there is, trying to teach students to do that at the same time as they're learning the underlying substance is a recipe for disaster: The students will end up learning both the writing/communication standards and the substance far less well than they would have otherwise.

• From the strange world of e-books, I have two counterpredictions in response to B&N's latest. First, the Riggio family will not be able to treat B&N as a private fiefdom by this time next year, even if it somehow manages to beat back Ron Burkle's even-more-disastrous-than-the-status-quo attack on their board control. Second, the company's prediction of 2013 e-book sales will be off by more than 15% — either high or low, but it's hard to tell. Sadly, that would be unusually accurate for three-years-out revenue forecasts in print publishing... especially since the inaccurately named "agency model" is expanding and Amazon is daring someone to sue for predatory pricing.
• It's worth repeating a snarky comment here that I made elsewhere. Illinois is second only to California in its dysfunctional finances. The primary cause of this problem is that the state's income tax is non-graduated — a flat three percent rate. (Yes, that is a hint to flat-tax advocates of the most likely result of their preferences.) Professor Pollack notes one of the many problems with that policy: lack of services — whether or not provided by the state — for the intellectually disabled. I have a slightly different take on it, though:

  Professor Pollack:

  As an Illinois resident, I must take issue with one assertion you’ve made. Illinois cannot possibly be ranked as low as 51st in the nation in providing “community-based housing and services to intellectually disabled people.” We have one of the largest legislatures in the nation, so surely Springfield must be among the nation’s leaders in housing the intellectually disabled. Exhibit A: The leadership in the state House. For the last two decades.

  Oh, I’m sorry, you meant a different kind of “housing,” didn’t you?

  Don't get the idea that this is a partisan disagreement, either; the Heffalumps are at least as bad as the Jackasses, particularly downstate — as anyone watching the occasional political ad on Sunday Night Football last night could have inferred. Hell, those bloody idiots celebrate their intellectual disabilities as a qualification for office!

Labels: intellectual property, internet, jurisprudence, law practice, politics, publishing

link to: 15:17 [GMT-6]

Ms O'Donnell, Meet Mr McGovern's Ghost

 

It's sort of amusing right now watching the Heffalumps specifically, and American conservatism in general, mirroring what they most despise: The general history of liberal/progressive politics in America.

Stage One: A general rising of discontent at the existing political leadership. This is distinct from mere generational change; one of the best examples is the demise of Southern Jackass authority within the party from 1967 or so until 1974 (when, as is the nature of things, they went pear-shaped; and yes, there's a specific reason for this Briticism). This is usually exacerbated by the party leadership being in the hands of people who are seen as, well, apparatchiks who could not, themselves, be elected to a contested political office; the current HNC chairman is an excellent example.

Stage Two: Ideological purity begins to shift from long-standing party beliefs to newer, and usually moralistic, pass/fail tests that reject nuance. The Heffalumps are now shifting away from "strong on defense, lower taxes" issues toward "no government intervention at all, hyperconservative Protestant morality." I'm just waiting for the first time I hear one Heffalump call another Heffalump — probably a very conservative one, like John Cornyn — "objectively liberal." Damn, it looks like I'm much too late. Schade.

Stage Three: Opportunist fellow-travellers begin to use the new, extremist movement to get themselves into power, feeling free to ignore their own pasts and the "new" ideology they're supposedly supporting. For a time, the internal solidarity of the extremist movement will hold up, even to the point of getting some of its members elected to office and perhaps onto top-level ballots. Perhaps the most obvious example of this is the figure-headedness and shenanigans behind the 1972 Jackass Presidential ticket: As extreme as McGovern was portrayed, he was nowhere near as extreme (based on his actual voting record in the Senate) as many of his supporters... who were more than happy just to be done with the overt racism of the Southern Jackasses (while imposing an equally pervasive Model-T racism of their own), and thereby ignored everything else.

Stage Three is the most dangerous stage for the polity — not because it risks putting extremists in office so much as it risks getting extremists into essentially unreviewable management roles immediately below the elected/confirmed-by-the-Senate level. We recently had more than a glimpse of this in the Department of Justice, and nobody knows how much has remained below the surface. (No political party is exempt here.) We're somewhere in the middle of Stage Three now for the Heffalumps. I'd argue that that party entered Stage Three around 2003, meaning that — if the historical record in American politics is followed — we're getting close to, or perhaps are at, the saddle point (PDF). And since the implication of a saddle point (in mathematical physics, physical chemistry, and game theory) is that movement away from the saddle point is of unpredictable direction and magnitude, we're in for a good time....

Now, what was that line about those who don't know/understand history being doomed to repeat it? And what might that have to do with the antiintellectualism endemic in both parties' apparatchiks (and yes, the repetition of a pejorative term for Tsarist and Soviet government officials is with malice aforethought)?

The truly masochistic are invited to apply the above to the publishing industry.

Labels: culture, politics

link to: 10:24 [GMT-6]

Breakfast Sausages

 

More later today — running off to a post-op appointment —

• As proof that nobody really reads the classics and thinks about them any more, consider a book review of Mark Taylor's screed against university tenure. On the one hand, Taylor does identify some real problems with the tenure system as it has been implemented. Bluntly, there is no excuse for the kind of deadwood often maintained by the tenure system... and particularly not given the hostility of much of the wormiest deadwood to effective teaching of their inevitable successors (and even those who will not be their successors). On the other hand, Taylor's entire argument — and, in parallel, the argument against tenure for public school teachers — is a classic example of the Aristotelian fallacy. In good classical syllogistic form, the argument looks like this:
  • The tenure system as it actually exists has significant inefficiencies and has been abused. No argument here; it is, after all, the real world.
  • The only possible alternative to the tenure system as it actually exists is a free-market, at-will-employment system that will inevitably be operated by efficient, disinterested decisionmakers to the ultimate benefit of all. That's what they said at the beginning of the Industrial Revolution, too.
  • Therefore, tenure must be abolished.

  Based on that, I'm not sending my kids — or any kids I know — to study in the Department of Religion at Columbia. One could even argue that the existence of Professor Taylor's book is, itself, proof of flaws in the tenure system... because only through tenure could such an ignoramus rise to the department chairmanship at an Ivy League institution, even in a department of religion. To name just two of the problems with Taylor's implicit syllogism — and yes, I have read the underlying op-ed closely, although not the entire book yet — consider the converse straw-man approach. Ordinarily, a straw-man argument sets up its untenable hypothetical alternative as the negative outcome; this time, he has set it up as the positive outcome to be achieved. This, though, is as much a problem with the particular argumentation as with the premise itself. At the premise level, though, Taylor's proposals fail by ignoring the flaws inherent in every system that is implemented by human beings. If a corporation whose motto is "Don't Be Evil" so often acts so, by (for example) violating privacy and turning silently collected personal data over to totalitarian governments without regard to how that data will be used, perhaps — just perhaps — we should stop and think about the inevitability of abuses that will occur in an alternative to tenure... such as the firing of law professors at religiously affiliated universities for daring to suggest that the Jeffersonian wall between church and state might be a good thing not just for secularists, but for religion itself. (Not, I'm afraid, entirely hypothetical.)

  The irony that the American university system is based upon a competition of diverse ideas, and is here being opposed through refusal to accept any but the most doctrinaire, artificially defined alternatives, appears to have escaped Professor Taylor. (Snide aside: Of course it has; he's in a department of religion, although it appears that he actually wants to be a physicist as in the illustration.)

• As a conceptual follow-on to the preceding sausage, consider actors "teaching" medical subjects... and whether that just might describe Professor Taylor, who clearly has managed to convince some specialists of his personal authority: That's how he got tenure.
• As a second follow-on to the preceding sausage, ask yourself which holy book says x, let alone which one really means it... and ponder the gap between that and doctrine, let alone the behavior of the religious oligarchs in charge of that doctrine (and their secular acolytes).
• Speaking of mixed motive, consider motivations for arts patronage among the ultrarich... but not too closely, given the source. Or, in a less-obvious manner, consider airport libraries and how the nature of the collection can be warped to undermine a great idea.
• Eventually, robots will be as good as men: They will be able to lie. Perhaps sooner than we thought. Shortly thereafter, there will be a Robot Tea Party, which we won't be able to tell from the Human Tea Party. But their spelling probably won't be any better.

Labels: arts, culture, mass media, miscellany, politics, science

link to: 11:36 [GMT-6]

It Really Is Better With (In) Chunks

 

Three tremendously chunky sausages this morning, even after yesterday's essay...

• In breaking news, the U.S. Register of Copyrights is retiring at the end of the year, meaning that there's an upcoming vacancy. I greatly fear that this position will be filled by someone who has been "agency-captured": That is, whose allegiances and predispositions are entirely aligned with the most financially self-interested segments of the industries that depend upon copyright. I can virtually guarantee that authors and other actual creators of copyrighted material will be entirely shut out of consideration for the position; that best that they can hope for (and it's extraordinarily unlikely) is a seat at the table for preliminary consideration. Instead, we're going to get stuck with either a current member of the Copyright Office (not at all a good thing, as there are institutional interests there that are inimical to both copyright in general, at the abstract level, and the interests of those who create copyrighted material) or someone sponsored by Big Media. Neither would be good; in all probability, either will be a disaster.

  My radical proposal would be to do away with the Register of Copyright entirely, and to do away with copyright registration, and actually follow the bloody Berne Convention's denigration of bloody formalities... especially since registration of copyright is not definitive in demonstrating ownership — not even as much as registration of interests in real property is. That, however, is not going to happen. My modest proposal would be to explicitly appoint at least four author representatives; at least one artist representative; at least one musician/performer representative; and at least one "other" representative of actual creators of copyrighted works — explicitly excluding patrons of works for hire — to whatever screening committee gets established... and ensure that these people constitute at least a majority of that screening committee.

  Neither proposal is going to happen. And in the meantime, the Copyright Office will continue to fall farther and farther behind reality, concerning both technology and the generation of copyrighted works, while bureacratic inertia reexerts its primacy during the changeover.

• Over at Black Clock, here's a fascinating lament on the shrinking of the belles lettrist class as simultaneously a reason for and a result of "the death of literature." Unfortunately, Ms Hawe, I think, misses two critical points that change the meaning of her analysis. For one, she has missed the distinction between "has been created and survived" — the subject-matter of the professors of literature — and "is being, and will be, created" — the subject-matter of the less-prestigious professors of composition. This is another example of the reflexiveness in defining "literature" and "fiction" as two different sections of the chain bookstore that she (for good reason, if not always the reasons she states) laments early in the piece. To put it another way: I enjoy reading Jane Austen's work on occasion... but I wouldn't dream of writing like that, either stylistically or substantively, because we've learned so much since then. Unfortunately, we haven't figured out yet how to teach a lot of that difference, so instead we get stuck with the third (unacknowledged by Ms Hawe), and lowest, caste in English departments: The "creative writing" faculty.

  The other critical point Ms Hawe missed is the distinction between mastery of currently accepted technique (which has an inordinate effect on whether a work will survive to be gnawed on by later generations of scholars and the belles lettrist class) and mastery of substance (a far more hit-or-miss proposition). Literature and the arts are replete with such examples. One of my favorites is the distinction among Mozart's overrated Le nozze di Figaro, which displays considerable mastery of accepted operatic technique; the play by Beaumarchais upon which Mozart based his opera, which displays little mastery of anything other than pedantry (or, at least, not in the translation I've read), but is nonetheless a better "work of fiction" by all of the standards I learned from those gentleman-scholars of literature; and the fascinating complex of folktales and commonfolk tellings of similar stories in prerevolutionary France, which together scult a fascinating piece on the interplay between the political and the personal (if often in the negative spaces) superior to both.

  So, then, perhaps part of the problem that Ms Hawe has discovered comes not from the loss of the belles lettrist class — "gentlemen of letters" — but from increasingly common preservation of material outside the purview of that class... meaning that it has never been subjected to the same rigor. E___ V__ H____ is considered a guitar god, despite the wretched lack of substance in what he plays, while M___ K______ has largely slipped from view because his works balanced technique with substance instead of elevated technique over substance; conversely, I'll also put M___ K______ up against most of the overblown musing by a certain B__ D____, a "muse" whom nobody considers technically accomplished (in fact, virtually every one of his best-known pieces is known through covers by more-technically accomplished artists, whether J___ H____, T__ L___, or B___ M_____). In recently-produced fiction, we've got more similar comparisons available than I can shake my typewriter ribbons at.

  Ms Hawe has discerned yet another of the false dichotomies in the arts; The distinction between the commercially successful and the academically respectable. They need not be mutually exclusive; that they often are is as much a matter of tempo as anything else, and is not necessarily a measure of the true worth of either. But then, I'm a chess player and intellectual by nature... and even though it is a false dichotomy, it is one that cannot be ignored.

• On an official Grauniad blog, Jon Butterworth wonders if poor science advice is betraying UK science and engineering. There may well be something to that; but I think there's something much more fundamental: The utter absence of distribution ("general education") requirements in UK higher education means that the decisionmakers seldom have any knowledge of science beyond the high-school level — not even a rocks-for-jocks course — and so can't discern the difference between good and bad scientific advice in the first place.

  OK, that's too subtle. The problem is that in Europe, even more so than in the US, the governing class is not just scientifically unsophisticated, but scientifically illiterate... but nonetheless believes that it knows enough about "management" and "politics" to make decisions on and about science. Conversely, too many of the most brilliant scientists have never learned to communicate to anyone other than, well, other scientists within their own specialties. Stephen J. Gould, for example, was not a particularly original researcher; he was, however, particularly adept at putting research into a context that was meaningful for the nonspecialist. The same goes for Lewis Thomas, for Linus Pauling, and for a substantial proportion of those recognized by nonscientists as great scientists. A similar, even more disturbing parallel problem comes from the "fellow traveller" problem epitomized by the current head of the NIH... who is a not-so-closeted "accomodationist" between science and religion in a position that is supposed to be for an advocate of science over nonscientific obstacles. That's not to say that ethics, for one, should never intrude to guide and focus scientific research; it is to say that the religion-based ethical considerations should never be used to foreclose entire fields of study, but should instead go to the appropriate methods and safeguards.

  Yes, there is a connection between this chunky sausage and the preceding one. More than one connection, in fact; some of them are probably unintentional.

Labels: arts, copyright, culture, mass media, miscellany, politics, publishing, science

link to: 18:12 [GMT-6]

Suspended License

 

A couple of fascinating decisions in the last week on the extent of copyright protections — and purchaser/user privileges — expose a couple of holes in current publishing practices. Well, not holes, exactly; more like gaping breaches.

Over across the pond, a court in Switzerland ruled that, as interpreted by my only feline colleague the IPKat, an internet actor

may not search peer-to-peer networks for copyright infringing files, register the IP [internet protocol] addresses of the uploaders and forward them to the copyright owners, which then, based on the data, file criminal complaints against unknown (the prosecution, unlike private parties, can force the ISPs to hand over name and address of the person/entity behind the IP address).

(German-language judicial press release) (PDF) This is inconsistent with both German and Dutch rulings. The key point is not the interference with antipiracy efforts per se, though, but the primacy of data-protection law over copyright law.

Similarly, the Ninth Circuit has asserted the primacy of contract law over copyright law... and missed most of the anticompetitive implications of its reasoning. In Vernor v. Autodesk, Inc., No. 09–35969 (9th Cir. 10 Sep 2010) (PDF), an individual purchased AutoCAD disks and requested a declaration that he could resell them on eBay. Autodesk opposed, arguing that the disks were mere physical artifacts, and that a user who obtains a copy of AutoCAD obtains only a license; and since Mr Vernor was not an "authorized dealer," he did not have the right to transfer that license via eBay at a price and on terms of his own choosing. The Ninth Circuit agreed:

We hold today that a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions. Applying our holding to Autodesk’s [Software License Agreement], we conclude that [the eBay seller] was a licensee rather than an owner of copies of Release 14 and thus was not entitled to invoke the first sale doctrine or the essential step defense.

Slip op. at 13879–80 (footnote omitted). Notice, though, that this is based upon a unilateral declaration of license by the transferor (AutoDesk), which is inconsistent with ordinary custom for software. Although most software copies are transferred under a "license," those transfers are only so as to maintain control over the copyright in the software; they do not restrict later transfers of the copies of the software to third parties.¹

Together, these decisions raise some really, really interesting questions. In no particular order:

• Consider, for the moment, an individual who properly purchases AutoCAD software and then moves to Switzerland (EU law would disfavor enforcement of this kind of license). Now assume that this individual tries to sell his copy of the AutoCAD software on a Swiss equivalent of eBay, which is being probed by AutoCAD in the same way as the Swiss court prohibited Logistep AG from doing. No, this isn't just the civil procedure/conflicts of law nerd in me coming to play; it's a question that just sitting there, waiting to be asked on an exam. Or in practice.
• DVD and videotape distributors have, for years, asserted a "license-like" restriction on every DVD. Does that fall within Vernor? What about a more-restrictive version of the existing "license"?
• Can a publisher turn a printed book into a mere "license" by printing a license agreement on the copyright page of the book, and thereby restrict used sales of the book? (n.b. This is not a hypothetical.)
• Virtually all publishing contracts are written under the premise that an author is selling certain rights to the publisher, which the publisher may then reuse by publishing the book. Leaving work for hire aside, this is inconsistent with the premise of the Berne Convention and the US Copyright Act of 1976, which (as evidenced in the US by such terms as § 203 and § 304(c)) now treat the author-publisher transaction as a license rather than a sale. Does Vernor represent some kind of tacit acknowledgment that the party who is offering copyrighted material in the stream of commerce has the authority to unilaterally declare that the transaction is a license?
• More to the point, consider the way that e-book "libraries" are stored for most proprietary e-book readers, such as the Kindle. Under the reasoning of Vernor, the Big Brazilian River was in the right last summer when it deleted infringing copies of 1984 from Kindle-users' "libraries" without notice, because "license" implies "right to unilaterally terminate" in a way that "sale" does not.

In short, these opinions — especially when considered for possible conflicts-of-law issues — raise far, far more questions than they answered. Sarcastically, one might remark that that's the expected result in the common law; whether that enables citizens (and businesses) to comport their conduct to the law's requirements, though, is another question entirely. And the less said about how Vernor and Logistep might influence the pending ACTA negotiations, let alone the enforceability and/or reach of the GBS settlement, the better... as I have a football game to watch, and thinking about that sort of thing is going to inhibit my analysis of the battle in the trenches.

---

1. I'm leaving the question of OEM licenses and versions of software aside for the moment; that's a much closer question, because the initial license is not for general use, but as part of a tying agreement that may — or may not — raise antitrust implications of its own.

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

link to: 11:40 [GMT-6]

Amputees

 

This is, I suppose, one of those "da[tes] that will forever live in infamy." I vaguely knew a couple of people at the WTC, and more than a couple of people at the Pentagon, who were involved in one way or another; no relatives, close personal friends, etc., though. That doesn't prevent me from having a sense of outrage... at a bunch of religious fundamentalists who do not represent the mainstream of their faith, any more than Timothy McVeigh represents mainstream America (or even mainstream teapartyism). One could, I suppose, say the same thing about 20 May (1631), or 15 July (1099), or 21 September (1857), to name three similar dates with disturbing casualty counts caused by the mixing of extreme fundamentalist religious doctrine with political megalomania (that are outside the awareness of the typical American).

Then, yesterday evening, I saw the announcement of a living recipient of the Medal of Honor, a shockingly rare event — but, in retrospect and considering what it takes to become eligible for it, perhaps not so suprising after all.¹ This, at the same time that Garry Trudeau has returned to dealing with survivors' challenges.

(Do read the strips from earlier in the week... context matters.)

One must wonder, though, how much of the posturing that is not coldly calculated political gamesmanship results from some horrible societal equivalent of "phantom limb syndrome." I suspect that it's neither all nor none. Turning that posturing into vengeance, though, only reinforces dysfunctional fundamentalism, reminiscent of a different variety of MADness. Vengeance is the refuge of the powerless... and however powerless Americans as individuals may have felt in the aftermath of the cowardice displayed by the 9/11 terrorists, America as a whole is not. Distinguishing between the two, however, has never been a strength in America, or in the West as a whole; even acknowledging the distinction, in the face of civis Romanus sum and later extensions thereof.

Those who advocate societal vengeance on behalf of harm to individual members of that society by an offshoot of the Other too often forget that with rights come responsibilities; that with the ability to rain down destruction on one's enemies comes the responsibility to limit oneself to a proportional response focused on the (or at least an) appropriate target. Almost by definition, devastating the mainstream of a religious movement for the actions of fundamentalist nutcases is, at minimum, mistargetted.

---

1. I met one of the few from Vietnam in the late 1980s. Unfortunately for him and his service, he was promoted well beyond his leadership capability and placed into a post pending retirement where he couldn't do damage... and then proceeded to nonetheless damage the intellectual curiosity of a generation of young officers by encouraging an environment that rejected the questioning of perceived wisdom and Reaganesque political correctness. (Allowing/encouraging a faculty member to defend Oliver North's conduct as somehow enhancing national security... in front of officers intimately involved with that aspect of national security?) That's not a criticism of that man's heroism or worthiness for the Medal of Honor — only of the institutional reaction.

Labels: culture, military, politics

link to: 12:14 [GMT-6]

Politics Continued by Other Means

 

Happy New Year, and welcome to another year in which the lunatic fringe will put forth conspiracy theories against the Obama administration and other Semites... instead of the Jews. Of course, if you're truly an observant Orthodox Jew, you won't see this until after sunrise on Friday when you'll be able to use the 'net again...

In any event, this is a long rant today on lunacy and intolerance — mostly religious intolerance. On the "gentler" end of the spectrum, a nutcase wants to prevent release of the Medal of Honor game, alleging that the game is nothing more than a "killing simulator" that will give away secrets to the Taliban, that it is being indiscriminately sold to minors, and that it's improper because it "allows" players to play as members of the Taliban. That first objection is more than a little bit ridiculous, as anyone who has had any experience actually wielding weapons in anger could tell you; killing — especially repeatedly — is about a lot more than hitting targets with fake weapons that have no recoil. The second is no better: Leaving aside the unacknowledged constitutional problem with restricting "minors" from what they can see on the bloody evening news, calling for a ban because a manufacturer isn't participating in an ill-conceived, ineffective, voluntary sales restriction system is just a little bit hypocritical. By that standard, we should also ban the Bible (both testaments) for their various sins.

On the other hand, it's that last item that is most ridiculous. If Medal of Honor is, in fact, a reasonable killing simulator, it's not going to give away a damned thing to pro-Taliban users... because they still think like Americans; the rest of the simulation isn't that good. But if, somehow, it becomes that good in the hands of experienced players, that's all to the good for everyone... for only by understanding how one's opponent fights in asymmetric warfare does one have any chance whatsoever of long-term survival, let alone victory. Then, given the tone of the letter (which has been made largely available), a little bit of America First bigotry was to be expected, amplified by the antisemitism.¹

But special-forces-type idiocy isn't restricted to just violent video games... such as the burn the Q'ran proposal by a radical fundamentalist. As Jon Stewart said, "A Christian is an extremist by burning the Q'ran. A Muslim is an extremist by reading from it." OK, so he has a better grasp on what "news" means than the media moguls: Sometimes a "fair and balanced" news presentation requires calling someone who is bugfuck crazy a lunatic. And calling the "special forces" vet who claimed in a letter to the Rev. Jones² that "100% of the special forces are behind burning the Q'ran" innumerate in the face of the number of Muslim members of the special forces would be too generous...

This leads to a pretty clear conclusion:

Religious fundamentalism — regardless of the particular religion — is bugfuck crazy and leads only and inevitably to stupidity, bigotry, and bloodshed.

Is this really what we're supposed to be thinking about/celebrating this close to the Day of Atonement (the critical part of Judiaism that was not adopted by fourth-century politicians trying to use the cult of Christianity to overthrow Caesar)? It's not about religion as much as it's about politics expressed through warped quasi-patriotism. And you "nativists" out there better look back more than five hundred years or so to figure out what "native" means in these here parts... and maybe give back that that modern Colossus off Manhattan, especially after reading that damned inscription.

---

1. Jews, Palestinians, Arabs — all semites. Get over it.
2. Given the clear insanity, self-aggrandizing publicity seeking, and exclusionary tone, one wonders if he's a relative of another Rev. Jones in more than just rhetoric.

Labels: civil rights, culture, mass media, politics

link to: 11:26 [GMT-6]

Link Sausages of Unintended Consequences

 

Anyone who reads this blawg (or, indeed, pays attention to the history of publishing, or of intellectual property) knows the Law of Unintended Consequences: For every action or policy, there will be unintended consequences that undermine the purpose of the action or policy for a significant portion of persons affected by that action or policy. DRM is an excellent example; one of the reasons (besides price) that I won't use a dedicated e-book reader is that I actually remember CopyIIPC and related battles... and that leads into the first sausage on the platter...

• One of the downsides of the "e-book revolution" is that it is harder to buy e-books on a trip overseas, thanks to the same sort of digital nonsense as partly cripples DVDs: Region controls. And if you want the UK edition of the Harry Potter books, rather than the US version, a US-based buyer can't cough up the extra shipping to buy from a foreign online store.
• It's hard to determine what the biggest unintended consequence of the three-branch elective system established in the Constitution has been. There have been quite a few, ranging from abject inability to contest the War of 1812 (which the US "won" because England was not capable of logistical support Over Here, let alone while fighting that Corsican guy's mob nearer home) to the Second War of American Secession (better known as the American Civil War, or — in certain parts of the country — the War Between the States) to the peculiarity that the fifth-largest economy in the world is a single US state... and it's bankrupt. One candidate, though, has to be the "political class" phenomenon — which is familiar to anyone who has paid any attention at all to Europe in the last half of the nineteenth century, but that's yet another unintended consequence. I don't endorse Mr Codevilla's analysis without some severe reservations (such as whether identifying a "political class" is an evaluative or normative exercise in the first place), but it's definitely worth considering.
• "Samuel Johnson" at The Economist muses on one of the unintended consequences of bestsellerdom: the copies thrown out/donated to thrift shops (and, of course, lawsuits).
• Privacy, tracking, and datamining are not — as TV would have us believe — either universal or particularly fast and easy, especially when one is looking for particular kinds of data. It always helps to look in the right place... and the existence of the Atlantic provides yet another unintended consequence, this time of "Stasi-like" data gathering by European ISPs.
• Unintended consequence of media baronship: Wiretapping of political leaders... followed by those political leaders' refusal to adequately investigate when the wiretaps become known. To put it another way: A "free press" is not necessarily the same thing as an "Austrian free market press."

Labels: civil rights, internet, mass media, politics, publishing

link to: 11:32 [GMT-6]

2010 Hugo Winners

 

Congratulations to the recipients of the Hugo Awards. The literary award winners were:

• Novel (over 40k words): (tie) The City & The City, China Miéville; The Windup Girl, Paolo Bacigalupi
• Novella (17.5k-40k words): "Palimpsest", Charles Stross
• Novelette (7.5k-17.5k words): "The Island", Peter Watts (PDF)
• Short Story (up to 7.5k words): "Bridesicle", Will McIntosh
• Graphic Story: Girl Genius, Volume 9: Agatha Heterodyne and the Heirs of the Storm, written by Kaja and Phil Foglio; art by Phil Foglio; colours by Cheyenne Wright (Airship Entertainment)
• Dramatic Presentation (Long Form): Moon, screenplay by Nathan Parker; story by Duncan Jones; directed by Duncan Jones
• Dramatic Presentation (Short Form): Doctor Who, "The Waters of Mars", written by Russell T. Davies & Phil Ford; directed by Graeme Harper
• John W. Campbell Award for New Writer: Seanan McGuire

Congratulations to the winners. And to the nominees. Unusually for a WorldCon held outside the US, there seemed to be very little "home field advantage" in the literary awards, which is a good thing. I do wish that the results of two rounds of popular votes among a group of people who paid to be voters would not be called "best" — particularly as the nomination process is so screwed up and too soon after the end of the eligibility period. At least it's not the Emmys or Grammys, though...

Labels: arts, culture, publishing

link to: 13:00 [GMT-6]

Last of the Summer Barbecue Link Sausages

 

A very strange and busy week kept me from updating things. And the hydrocodone.

• First, a bit of "local color" amusement from the Department of Cognitive Dissonance. One of the local supermarket chains — a notoriously anti-union one — is advertising a special deal this weekend for M*ller Lite beer, brewed by a conglomerate that has always been anti-union... and is even more so after the merger with C00rs. Some Labor Day special, eh?
• If any author you know, or you yourself, has ever published a work with Dorchester Publishing (or if you're a librarian who purchases forthcoming works from Dorchester), you're no doubt aware of the financial problems Dorchester has been having. These have included as visible symptoms the "layoff" of its editorial staff, the decision to end its mass-market print program in favor of e-books, and royalty statements and payments even later than industry norms (and even more rife with errors in the publisher's favor).

  Well, it gets better. Dorchester is now, according to its counsel at a large New York law firm, operating as if it declared bankruptcy on or about 09 August 2010. It became increasingly clear at the "meeting of vendors" on Tuesday that — for undisclosed reasons — the principal(s) at Dorchester don't want to actually declare bankruptcy. There are both good and bad (and legitimate and illegitimate) reasons for this; they're not really relevant. What is relevant, though, is that management at Dorchester wants everyone to sign ridiculous nondisclosure agreements. Do not sign that agreement without seeking independent advice from your lawyer or agent, because — as part of the audit process — you're entitled to about 90% of the information that management claims is going to be provided to you as a matter of right under your contracts, even without that NDA.

  Further, you shouldn't assume that a reversion of rights in the past (or near future) has been fully effective or will be acknowledged. There are multiple layers of apparent conflicts of interest in this one, combined with publishing industry ignorance and intransigience on rights, that combine to make this an unclear situation. Again, get advice from your agent/lawyer now.

• Eminem stuck it to Da Man; or at least to the metrosexual record-company executives in charge of allocating royalties at Univeral Music Group, one of the big RIAA labels; or at least his management company/sponsor did. In any event, the Ninth Circuit decided that digital downloads via iTunes qualify as the transfer of "masters", which pursuant to that contract qualify for a vastly more-favorable 50% royalty on net proceeds (as opposed to 12-20% for physical-object recordings). See F.B.T. Prods., Inc. v. Universal Music Group, Inc., No. 09–55817 (9th Cir. 03 Sep 2010) (PDF).

  What I find surprising about this matter is not the ridiculous posturing of the parties (that's expected), or the purported ambiguity in a contract being interpreted by the distributor in its favor to screw the content provider (that's expected), but that anyone in the recorded music industry could possibly have failed to anticipate this problem at the time the contract was signed... and make it not just unambiguous to experienced litigators, as the Ninth Circuit found, but unambiguous to RIAA executives. On second thought, that might be an unduly harsh standard; too many of them seem unable to the word "No."

• Professor Crawford discusses the implications of net neutrality in the Great White North. Although this is heavy going, it's definitely relevant to authors and to anyone else who is concerned about access to works for sale... because one aspect of net nonneutrality that is lurking under/behind the US debate is the ability of ISPs to slow down traffic to vendors who don't pay a "placement fee" of some kind. Think of end caps at grocery stores writ large, but invisibly, across the net...

There'll be more later in the weekend. I don't respect Labor Day all that much, since — as an independent contractor — I'm defined as "management" and therefore cannot unionize.

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

link to: 15:02 [GMT-6]

Solid Sausages

 

After the first solid food since Sunday...

• Academia, business, and the government share one viewpoint: unstated disdain for individual voices in the arts. Even when honoring artists, academica, business, and government almost always look to the past, and seldom to the recent past, for those to honor. For example, Kennedy Center Honors are almost always for "distinguished careers" in the arts, not for individual (recently produced/published) masterworks. To say the least, this is inconsistent with the work-by-work premise of the IP Clause... and it's also inconsistent with just about everything else that academia, business, and government do, which is all based on RightHereRightNow as a meme.
• While Bertelsmann's US book-publishing unit was engaged in a war with Andrew Wylie over e-rights, it (Random House) was sitting on knowledge of "major increases" in revenues and profits. As Mr Spock might say: "Fascinating, Captain. I have never encountered this phenomenon before."
• In one of the sillier H'wood battles of late James Cameron and Mark Canton are battling over 3D films... while simultaneously ignoring the elephant in the room. For all of its technical wizardry, Avatar — much like Star Wars — is a rather mediocre film (not in the same class as its contemporaries District 9 and Moon, due primarily to problems with story/script/narrative, leading into the set-piece battle sequences. Even more so, horror films (especially splatter-based horror films) neglect story/script/narrative in favor of set-pieces. That's not to say that a film based upon a set-piece orientation is inherently an artistic failure; it is to say that other innovations in such a film may (and often do) have little to say about its overall quality, or impact, or translatability to different varieties of films and stories. So, my advice to Mr Cameron is to look at the state of his own narrative house before he objects to someone else using his toolkit to produce comparable (but to his mind "inferior") works.
• Professor Crawford explains why allowing Comcast to set (or even influence) internet access policy is a bad idea... and, incidentally, why the proposed NBCU/Comcast transaction should be rejected on antitrust grounds. And she does it without once noting that much of our current media-ownership mess is the fault of Austrian School economists who provided (incorrect) justifications for weakening antitrust law! And meanwhile you can ponder tennis.

Labels: arts, culture, internet, mass media, politics, publishing