Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.
So, the EU has launched an antitrust investigation into Google. One wonders, though, if the EU has the balls to look into two much more disturbing antitrust problems in its own backyard: The anticompetitive and abusive behavior of Pearson (a UK-based conglomerate) and Wolters Kluwer (an Anglo-Dutch conglomerate) in scientific and academic journals. Or, for that matter, the behavior of other EU-based conglomerates in publishing.
And maybe, as Professor Crawford notes, US antitrust authorities should pay more attention to Comcast... particularly since that's how Google results get to a third of the country or so.
The always entertaining (in a "watch this replay of a train wreck" sort of way) bad sex in literature awards. Relatively SFW... after all, if it wasn't, it probably wouldn't qualify as bad sex writing...
So I took the weekend off from the sausage factory... that just gave the spices a chance to blend.
What a shame — the cofounders of the Pirate Bay lost their appeal and must now suffer the ignominy of being labelled "criminals." Worse, the Swedish appeals court increased their fine by almost a third. Schade. Also from Sweden, the difficult question of determining the tax basis for counterfeit goods (and, presumably, services).
Paul Krugman presents an immodest proposal for Ireland that isn't quite direct enough. The problem is a simple one: Investors no longer accept that investment has real risk — only variability of positive return, usually measured as Β as relative to the overall "inherently positive" return on "the market." In short, by having money to invest, investors believe that they are entitled to have even more money. If this sounds a great deal like the inherited nobility of Europe a few centuries past, it should... especially once one coordinates it with the attack on estate taxation (which does not have the "danger" of breaking up estates in land).
WikiLeaks. Again — this time, primarily diplomatic cables (Graudiad). Aside from demonstrating that convenience overruled security in the military and the State Department (again), there's not much surprising there. Arabs expressing distrust of Persia and asking sub rosa for outside help, of the "let's you and him fight" variety? Only a couple thousand years of precedents there. Diplomats spying on purported allies? Only a couple thousand years of precedents there. Contradictory gossip misclassified as causing discernable, serious damage to national security if disclosed? Only a few hundred years of precedents there. The UN as a hotbed of espionage and deceit? Only sixty years of precedents there. And so on.
The surprise would have been if the WikiLeaks cables did not disclose this pattern of behavior... because that would have indicated that diplomats, functionaries, and such had learned not to put their semi-deep secrets in writing (these cables reached only the Secret classification).
The Supreme Court issued its post-holiday orders list earlier this morning, and it included action and inaction in intellectual property cases of concern to authors. The obvious one was the denial of certiorari (refusal to hear) the teenage pirate's appeal in Harper v. Maverick Recording Co., which was accompanied by an interesting dissent from denial by Justice Alito that discloses yet another aspect of the bad writing underlying the Copyright Act. Justice Alito quite properly points out that two sections of the Act written in the 1970s don't anticipate the problems created by the lack of a physical good bearing a copyright notice... although even he does not acknowledge that anyone who was aware of concert bootleg recordings could have anticipated this very problem.
More subtly, the Court agreed to hear Microsoft's appeal in a patent case (Microsoft v. i4i lp) that concerns a technical question in patent law: What is the standard of proof to invalidate a patent as a defense to an accusation of infringement? This may be of interest to authors because of its side effects, and in particular the effects of the patent in question — which concerns a language for formatting electronic documents, and whether Microsoft's widely used .doc format (among others) infringes the patent bought by "patent troll" i4i... and, in particular, what Microsoft would have to prove to invalidate that patent. This will — as usual in patent decisions from the Supreme Court — be a highly technical matter with strong civil procedure elements. And, as usual, I have an opinion on it... for later.
Professor Madison exposes one of the problems with commercialization and assimilation of "traditional knowledge": who "owns" yoga in the first place? Of course, this is only the second question that needs to be asked; the first question, as implied in Professor Madison's piece, is "What are we really talking about, anyway?" Perhaps a Western literary example might make things clearer. Consider the tale of the prodigal son (Luke 15:11–32). Leaving aside the dubious ownership of this by "christianity" (there are various Semitic, and indeed pre-christian European and Chinese, tales along the same lines), what exactly is the tale at issue, and how does it relate to faith? Is it merely a prefigurement of the post-Freudian concept of "unconditional love for one's children"? Does the cross-cultural assimilation of yoga matter to this inquiry?
The Red-Tide Oyster Stuffing Award for carelessly poisoning an otherwise tasty dish goes to the majority opinion in Citizens United, which continues to accept that "money = speech" at the same time it denies "obscenity (for some value of 'obscene') is speech, too."
The Golden Gristle Award for assertions far too difficult to digest (and usually stuck in one's teeth) goes to Mystery Security Theater 3000 the Transportation Safety Administration. It's not sexual harassment — it's a Freedom Pat!
The Brussels Sprout Award for stinky, slimy, overcooked, gentrified little cabbages goes to Senate Rule 22, which governs defeating a filibuster... which is no longer a filibuster at all, as the members no longer need to remain standing and speaking.
A huge honkin' "copyright infringement" award for which the damages aren't based on the copying so much as on the nature of what was copied: Critical internal and business documents, which were then used improperly just like a stolen list of sales contacts.
Congress passed a technical correction to the Copyright Act (it is now on the President's desk for signature). The most important note is what is not in the bill: A proposal to allow an exclusive licensee to sublicense works without explicit permission from the copyright holder. In the Ninth Circuit, that's clearly the law (and rightly so, parallel to all other licensing law based on federal rights); other circuits, not so clear. This is an important issue for authors, because — in a technical sense — under the 1976 Act, any publishing contract that does not transfer the copyright (either formally or as a work for hire) is a license, not a sale... and so, arguably, Tasini forecloses the proposal in the first place, but that's an argument for another time.
In any event, this correction was apparently limited to corrections and clarifications; most of them merely apply common sense to the realities of electronic recordkeeping, or deal with ambiguities by putting the common understanding clearly into the statute.
If you don't understand the title today, look at the damned date.
James Frey doesn't know when to quit; he's added the million-and-second little lie (and several others) when defending his indefensible, unlawful exploitation of desperate wannabe authors. Bluntly, his assertions as reported in the article are at best untrue... and otherwise betray a disturbing combination of woeful ignorance and appalling arrogance. All quotations are from Mr Pilkington's piece (hopefully, he's never had a farm on which the animals revolted against his rule...).
Frey asserts that he's running something modeled after the art studios of Damien Hirst and Jeffrey Koons. Of course, he forgets that those art studios have an employer-employee relationship... which matters, a lot, for copyright purposes (and, indeed, everything else).
Frey asserts that "the contract is no more nor less 'brutal' than standard contracts you would find in the law or film world. 'I'm running a business in a highly litigious society. The contract is simply designed to protect Full Fathom Five and our partners like DreamWorks.'" Hogwash. The contract does not comply with WGA standards on just about anything, so the comparison to the film world is right out. The improper imposition of work-for-hire status and bogus claim of idea ownership are also well outside "standard contracts" (which don't exist, but we'll let that one slide for the moment) in publishing.
Thirty or forty percent of net, in a contract in which net is only partially defined, is well below the standard for a work of fiction... even a ghosted-for-a-celebrity work of fiction. So is a $250 advance for a book-length work.
And that's just what I'm willing to go into based on a second-hand account.
Where does 'net-based copyright infringement occur? And, more particularly, which court has jurisdiction over claims of 'net-based copyright infringement? The 1709 Blog notes another data point, this one a UK decision holding that infringement "occurs" where the site is hosted, not where it is viewed. I suppose that's all well and good, but what about torrent technology that divides hosting up among multiple servers that may be in multiple jurisdictions? More to the point, what about a three-point system in which a viewer accesses a mirror in jurisdiction A, but that mirror is merely a static copy of a source in jurisdiction B?
Yes, I'm a civil procedure geek. Get over it: Procedure matters.
Here's why you shouldn't even think about using the web to get legal advice (at least not directly): You'll (probably) forfeit attorney-client privilege. This is yet another "well, duuuuuuh" decision, but it's one that would come as a surprise to too many people. It's why I maintain that disclaimer in the upper-right-hand-corner of this blawg... and it's also one of the many reasons that there are no comments on this blawg.
At least according to some observers, my laments about the poor writing skills in the legal profession don't stop with practitioners, but include the Supreme Court. (As an aside, it's a good thing that study didn't attempt to deal with European courts... regardless of language barriers!) The study's focus on "faux unanimity" as a cause, though, masks a much more disturbing, underlying problem: The excessive reach of the "advisory opinion" doctrine caused by a too-narrow reading of the "case or controversy" basis for judicial review. Even when the next step is a logically necessary one, US courts simply will not take it if there is a tenable way to write around it and claim that next step is not part of the case or controversy before it. That's similar to refusing to solve a math problem because, for some particular set of data, there's a divide-by-zero error... when it's easy to add a limit to the data set to avoid the problem.
Given that the business side of music runs about a decade or so ahead of the business side of publishing, this piece in the San Francisco Classical Voice advocating that to make a living, "classical" musicians must diversify their output should create some interesting resonances for authors.
From the department of "rewards paying attention to high-falutin' theorizin'," the IPKat has summaries of four panels on Copying Without Infringing: 1234. Although these are almost exclusively from a European perspective, the diminishing importance of borders on the 'net (at least for commercial transactions) indicates that traditional American IP isolationism is no longer a tenable position.
A particularly disparate set of link sausages today, from many species (and that's not even counting the "other species" that get swept into sausages). This is positively the wurst of the week so far:
Seattle establishes a consumer right to reject home delivery of the old-fashioned, on-paper, kills-a-tree-each commercial phone directory — the part printed on yellow paper. Natürlich, the vendors of such have sued, alleging a constitutional violation. Yes, it is indeed a violation of the First Amendment for a consumer to say "I don't want your ad-ridden, noncomprehensive, foolishly contrived garbage dropped on my doorstep when I use the 'net to find vendors." We just can't have any restrictions on advertising! We can, however, have restrictions on who may voluntarily purchase videogames because they're "too violent" (compared to an evening news broadcast depicting southeast DC, the south side of Houston, or the mountains east of Kabul).
Make sure you look at both graphics in this story on trademarks, Greg Norman, great white sharks, and territoriality... because it has some disturbing implications for copyright, e-readers, supposedly public domain libraries, etc. Not to mention ACTA (as I mentioned yesterday, and gets more analysis at Patently-O). Plus, that first graphic is really cute; the second one, not so much.
It appears that some scholars are attempting to use digitized analysis and databases to understand artistic output, which is a worthy endeavour... to an extent. But art is as much a process as it is a thing, so I'm hoping for some caution on overstatements of what it all means.
It's in electronic gaming for now, but has interesting implications for fiction writers (and even nonfiction writers): How much control do athletes have over their images — and, in particular, when must someone who uses that image pay for the right? This is not an easy question, especially when applied to fiction. Consider, for example, a murder mystery set in DC in which Chandra Levy turns out to be only one victim of a serial killer-rapist. At what point does former Congresscreature Gary Condit (who can't be removed from the story, even if depicted as entirely innocent) have a right to control or compensation?
Hot off the (virtual) press, the apparent final draft of the Anti-Counterfeiting Trade Agreement ("subject to legal review", which is ordinarily meaningless) (PDF) promises to make life interesting for everyone. I'm going to wait a couple of days to say much of substance, but my first impression is that this is a bad bargain for just about everyone... which means that it just might have a chance of getting ratified.
The Economist offers some thoughts on where science gets done that bring a new twist to "outsourcing to cheap-labor nations." After acknowledging that artistic progress leads to scientific progress, perhaps someone will wonder why — in the wake of Arundati Roy, Salman Rushdie, et al. — this hasn't happened sooner... or maybe Harlequin is going to open an office in India to start sharecropping generic romances among the English-speaking author population there
And now, the dark underbelly of the long-overdue (if imperfect) financial reform legislation: The struggle over regulations to implement it. I was particularly amused by Ford's claim that automobile loans should explicitly be exempted from rules designed to deal with overly risky lending... because I used to litigate in that area. Extensively. And Ford was/is a bad actor, and not just by offering secured loans at 25.9% APR that, due to the high interest rates, were impossible to repay.
The Beast is back. Hasn't anyone figured out — from the disasters at The New Yorker and Talk under her direction — that Tina Brown can't actually implement all of her soundbites as a successful periodical?
This sort of thing makes me wonder if Murphy was one of the primary sponsors of the TRAITOR PATRIOT Act.
Professor Crawford notes that the proposed NBCU/Comcast merger will raise consumer prices. She doesn't note the other half of the famous (to nerds like me) antitrust standard, though: It will also reduce output, or at least has a substantial chance of doing so. Imagine, for a moment, that some group of upstarts from, say, MGM — a studio that has a lot of fantasy and science fiction films in its inventories — decides to start a non-premium channel devoted to science fiction, fantasy, and horror. Just what do you think the chances are of Comcast including such an upstart channel in its unlawfully-tied-but-nobody-is-paying-attention-to-that "basic cable" packages when it owns the ridiculous SyFy as a result of the merger? Yeah, about the same as me being named to the next vacancy on the Supreme Court.
An interesting discussion on the ethical dilemmas raised by a tire-slashing incident over at Pharyngula points out that more Americans need to pay attention to what happens elsewhere in the world. Belfast and Jerusalem pretty well cover it...
Just a short note today on James Frey's apparent inability to learn, especially regarding ethics... and how that affects authors, and particularly authors who have stars in their eyes regarding "new publishing paradigms."
Leaving aside whose fault the whole fiction or memoir? controversy was — it was at least partly the publisher's own damned fault — Frey has branched out into being a book packager at Full Fathom Five llc. There's a story on it in New York Magazine, but it doesn't even begin to get to the real perfidy: An author acting even worse as a publisher than commercial publishers. I couldn't even get more than halfway down the first page without wanting to strangle someone:
This agreement, dated as of June 17, 2010 (the "Agreement"), by and between Full Fathom Five, LLC ("Company")
and Suzanne Mozes ("Writer"), is in connection with Company's engagement of Writer on the writing of the initial book in a possible series of books based upon a story idea owned by Company currently entitled the "Untitled Magic Painting Project" (the "Book"). (The Book and any subsequent book in the series are collectively referred to as the "Series".) In consideration of the compensation set forth in Paragraph 4, Company's contribution of original creative material to the Book, Company's efforts to secure a publisher for the Book, the mutual promises hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of Company and Writer agree as follows:
1. Engagement / Services. Company hereby engages Writer on a work-for-hire basis, under the supervision of and in collaboration with Company, to write an outline of the Book (the "Outline") and an initial manuscript of the Book (the "Initial Draft") and any revisions to the Book as requested by Company.
[Proposed] Agreement of 27 Jun 2010(PDF) ("Mozes Proposal"). Let's start with the most-obvious problem: This contract violates the Copyright Act.
The work-for-hire doctrine is almost unique to American copyright law, at least for non-employees. Its limits are defined in 17 U.S.C. § 101. The particular definition is divided into two parts: Works by statutory employees, and works by freelancers. Work-for-hire by freelancers is restricted to:
a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
Let's see where Frey's effort fails:
The contract probably constitutes a special order or commission, although I'm skeptical as to whether the specific description actually constitutes a "commission" — without appending the other specifics, it's too vague
The contract certainly would be a written instrument designating the output as WFH, but
The work does not fall into any of the categories of works eligible for freelance WFH treatment. It is (at least based upon the description in the contract and accompanying article) clearly not part of a motion picture or other audiovisual work; or a translation; or a compilation; or a supplementary work; or an instructional text; or a test; or answer material for a test; or an atlas. That leaves only — possibly — a contribution to a collective work... and this particular example comes nowhere close. Book-length works of prose, or a series of book-length works of prose, are not within this scope.
But it gets better...
... because there's another highly dubious claim buried in that opening paragraph: The assertion that "a story idea owned by Company" is the basis for the contract. No, no, and yet again no. "Story ideas" are not subject to ownership under the Copyright Act. The only possible bases for such a claim of "ownership" are:
A trademark or trademark-like claim — which requires a preexisting commercial exploitation to be valid;
A trade-secret claim — which will be forfeited upon submission of the manuscript to a publisher (particularly since the confidentiality clause, ¶ 11, does not designate the "story idea" as confidential);
Some variety of unfair competition claim — and no such claim will survive under New York or California law. A Desny claim (under California law) would exist only for screenplays and teleplays, not for prose works.
Mr Frey needs an Atomic Wedgie; so does his lawyer. And authors should run away from Full Fathom Five until it, and its principal, grow up.
As a thought experiment, consider what would happen if every member of the federal government who has not completed at least one full term of military service recused him/herself from voting, or at least from making outrageous statements about how any change in any policy will affect military readiness. That wouldn't allow for a quorum in either the House or the Senate, and — perhaps more tellingly — would exclude the Commander in Chief, his deputy, and the Secretaries of Defense, the Army, and the Navy.
So, on behalf of veterans who care more about getting a thankless, underpaid job done — and done right — than about political posturing concerning who is doing it: If you haven't shared our foxholes, our barracks, our mess halls, and our memorial services, stop imposing your ignorant preconceptions of what "unit cohesion" and "military readiness" require upon those volunteering to put themselves in harm's way.
And while you're at it, change the Veterans' Day holiday to the first Tuesday after the first Monday in November — the day, enshrined in the Constitution, that is the real purpose of all this. There wasn't, and isn't going to be, a "war to end all wars" — so stop celebrating what was merely a cease-fire agreement in thirty years of total war as if it is more special than any other "end" of a declared conflict.
The real problem with the current generation of e-books is that — unlike a dead-tree edition — they're not yours. Instead, distributors are using "software licenses" as a model. The obvious problem is that when a legal preference meets an incompatible behavior-set, both get undermined, requiring changes in the underlying statutes. For example, many people don't realize that until fairly recently in the US, lending or renting sound recordings violated the Copyright Act... which didn't prevent anyone from doing so.
A Japanese economist compares obsessive bargain-hunting to self-cannibalism through a Stephen King analogy... and, of course, both understates and overstates everything. If nothing else, this interview illustrates the gap between theory and behavior — or, to use one of my own analogies, it illustrates that the existence of a single economic/financial Maxwell's Daemon implies the existence of a whole bunch of them working at cross-purposes.
It's really disturbing that getting a balanced, realistic description of an American copyright suit requires recourse to a UK newspaper, but, that said: Musical's producers sued for not properly crediting/acknowledging a factual biography as their source. The interesting thing for a nerd like me is the Feist question: How much of the musical copied original expression from the biography? Not having seen either, I'm unwilling to even venture a guess... because in biography, more than any other form of "historical"/"factual" work, the selection and arrangement of facts to tell a story resembles the narrative fiction-writer's art more than it does the uninventive chronicler's reportage.
At least according to the Grauniad, literary periodicals don't seem to be doing all that badly in this 'net-influenced publishing environment. Unfortunately, the article does not grapple with the underlying problem: How are the authors of works appearing in those publications doing?
A major UK-based literary agent almost gets it with a diatribe against the egregiously-misnamed "agency model" for e-book pricing. Ms Green properly compares the "agency model" to the UK's former Net Book Agreement, under which everyone agreed that list price was the selling price — that is, there was an industry agreement not to discount from list price. Being in the UK, she's probably just not familiar with the American antitrust term "resale price maintenance agreement"... or with the horribly mistranslated equivalents in EU law that led to the demise of the Net Book Agreement.
Realms of Fantasy tries — again — to rise from the dead. I predict no more success this time than under Mr Lapine without a zero-based rethinking of format, content, and editorial style... not to mention elimination of conflicts of interest. Major hint: This isn't the 1980s any more, and even People has moved away from the 1980s People look-and-feel that RoF (and Science Fiction Age) attempted to emulate in the 1990s. The remaining exponents of that meme are Vanity Fair and Vogue... and that says far, far more about contempt for the readership than anything else, on top of the problems with the particular mix of editorial content.
I'm setting the over-under on the next hiatus — absent such a significant reenvisioning — at seven issues: Just over a year for a bimonthly. I actually hope I'm wrong... but I have a pretty good track record on these sorts of predictions.
Some fascinating neo-Whorfism involving bilingual speakers. I would suggest that there needs to be another variable controlled: The subjects' perspective of the dominant language in the vicinity of the testing is a significant variable, as it partially controls whether they are immersing themselves in a given language or "just visiting."
For me, though, it's not just my inherent cheapness; it's battery life. I should not need to take yet another cable (or dedicated charger) with me on a one-week business trip or vacation and rely on having good power at the other end... and in transit at airports, on planes/busses/trains, etc. When these devices have ten-day standby with at least 100 hours active in that standby time, I'll start considering an e-reader... that also reads standard third-party formats (PDF, TXT, RTF, DOC, HTM) without requiring me to use a proprietary "store" for material that I already have and without reporting to the manufacturer/sponsor what is on the device or allowing any third party to delete or add content. (EPUB is not, contrary to its advocates, a "standard" format — at least not yet, thanks to inconsistent handling of graphics and notes.)
The Market Design Blog has a fascinating piece on market incentives for erroneous medical research that also has some disturbing implications for so-called "empirical legal studies" — you know, those "surveys" of court-case results that purport to tell us something about litigant motivation. Leaving aside for the moment that these are epidemiological, not empirical, studies (and anyone who has ever studied stochastics or public-health statistics knows why that's important), it is truly disturbing how many of the same biases and analytical weaknesses Dr Ioannidis describes in medical research appear in "empirical" legal (and, so far as I can tell, economic and financial) research studies... especially, one might add, in post hoc analyses of market failures. As Professor Roth emphasizes in his post, though, this is an inevitable consequence of the scientific method. The problem is not with science per se; it is with the incentives for exploiting scientific results in the marketplace (whether the financial marketplace or the reputational marketplace is irrelevant).
What I find most interesting, though, is the implications that Dr Ionnadis's work carries for the entertainment industry, and in particular for the publishing industry. As a specific example, consider whitewashing of covers. As I have noted, I'm satisfied that the source of the whitewashing phenomenon is misinterpretation of a chain buyer's offhand comment. Dr Ionnadis's work, though, points at a much more disturbing, second-order problem of causation: What data did that chain buyer use, and what was that chain buyer's analytic method, in coming to that conclusion? Similarly, what data do S&M dorks use, and what analytic process do they follow, in coming up with cover memes like "metallic-ink lettering sells more books," or the stereotypical H'wood "arrange the cast in a V around the highest-paid actor" publicity photo... especially when it is slapped on the cover of a periodical with a feature article about that H'wood property or a novelization? In short, is this bad data, bad analysis... or no analysis at all? I tend toward believing the last, particularly based upon the source of much of the received wisdom in sales (based on immensely flawed, nonreplicable, nonverifiable studies of fungible commodities being misapplied to nonfungible items and services being sold to a different population).
From the usual (which is to say undisclosed and definitely not USDA-inspected) meat-packing plants that make Upton Sinclair's descriptions seem clean and wholesome...
The UK fascist party has been done in by IP lawsuit after it poached from... Marmite. Which is owned and controlled, at least in part, by foreigners (Unilever is an Anglo-Dutch conglomerate). Just more proof of John Bull's irrelevance in the world today, and of the perfidy of lawyers. On the other hand, who needs proof of either, even on Monday morning?
President Obama has recognized reality and endorsed adding India as a permanent UN Security Council member, along with Japan. He's right to do so... especially if that means removing France (and possibly the UK) from such membership, as seven veto powers seems even more unwieldy than five. The key point is that certainly France, and probably the UK, simply do not deserve veto power based upon their actual political, economic, and cultural contributions to world politics and governance. That would be like giving a US Senator from Maine the ability to prevent the US Senate from even considering a bill or judicial nomination just because he/she was feeling grumpy. Wait a minute… but it beats the "elections" in Burma that are being boycotted by the opposition parties (probably rightly, in one of the very few examples of when it is proper to boycott an election).
As if one needs one more example of the problem with conglomerate publishing's reliance on bestsellers for profitability: When a bestselling series's sales decline, so does cash flow and profit — even in the face of unusual success for the remainder of the publisher's comparable works. We're not talking about Moneyball as much as about a hypothetical Moneybook... but nobody has written Moneybook, and even if they could get access to verifiable data as the basis for it, the data wouldn't be public. (Then, too, there's the problem with finding a publisher for Moneybook...)
The power of the Word is inferior to the power of suppressing the Word. By "the Word" I mean virtually anything but logos; in this context, it includes suppressing study of the Word: Words like republic, and misanthrope, and reiver, and war.
Sometimes even individual letters and sounds are enough for study and consideration. Remember, if there's one reality that the history of civilization discloses — both Western European and otherwise — it is that people have a strong tendency to live their lives in pursuit of and pursued by art (however vulgar it may be, in all senses of that word).
My colleague Victoria Strauss accurately notes that getting published is not a crap shoot. If it was really a crap shoot, the sample sizes of both published works and unpublished-but-submitted-to-publishers works are high enough to both (a) have roughly equivalent proportions of masterpieces in both data sets, and (b) have roughly equivalent proportions of utter dreck in both data sets. Neither is true; although Sturgeon was an optimist, I've dealt with both raw and raw-edited slush in several distinct publishing industries. The non-randomness of publishing is directly related to the preceding link sausage.
Not safe for workers: the continued problems with paying bankers (and, for that matter, everyone whose only economic role is one of matching, not of transformation). It's as much an ethics and political economy problem as an economic one... and since "political economy" has been a dirty word ever since Keynes demonstrated rather conclusively that all "economic policy" is inherently "the policy of political economy" — much to the dismay of Old Money —
Martha Grimes and the Case of the Missing Document
In 2009, Martha Grimes — a bestselling mystery/crime fiction writer — was sued by her former literary agent, Peter Lampack Associates,1 alleging that Grimes had breached her contract with Lampack by not paying commissions to Lampack for books licensed through Grimes's new agent on an option clause for an earlier book that had been licensed through Lampack.2PW has picked up on the story, and mangled it even more than usual... so I'm going back to the documents that exist to figure out what happened, what it means, and why the Case of the Missing Document is really the appropriate title for this brouhaha.
Lampack's complaint alleges a whole bunch of theories for why Grimes — and her publisher, as a purported matter of fiduciary duty3 — breached the contract. (n.b. the exact wording of the previous sentence both hides and reveals the Missing Document.) Lampack's theory basically boiled down to variations on the following theme:
Lampack represented Grimes, properly, in a 2005 licensing transaction with Penguin;
The 2005 licensing transaction established a right of Lampack to commissions on that license;
The 2005 licensing transaction included an option on next work, worded as follows:
[T]he Author hereby grants to the Publisher the exclusive right and option to publish … her next book-length work of fiction…. The Publisher shall have a period of thirty (30) days after receipt by the Publisher of the notification from the Author or her agent of the Author's desire to commence negotiation concerning such next book-length work of fiction within which to notify the Author whether it desires to publish such work and to negotiate the terms and conditions of such publication.
LampackDoc. 44 (08 Oct 2010)(PDF image) (Fried, J.), slip op. at 3 (redactions in original).
Therefore, the commission requirement extended to any work later licensed pursuant to that option — even if, as in this instance, Lampack had been fired by Grimes before submitting that option work.
Justice Fried of the Supreme Court of the State of New York for the County of New York rejected this chain of reasoning for three different reasons. First, the commission language itself was limited to the 2005 book, not to anything covered under the option clause. Justice Fried emphasized that for a commission to be earned by an agent (the legal variety of agent, not only "literary agent"), the agent must actually procure a benefit for the principal (in this instance, the author)... and since Lampack had nothing to do with procuring a benefit for Grimes, in the form of a license for the later book, the agent had no right to compensation for what it did not procure.4 Second, the contract between Penguin and Grimes did not create an interest for Lampack in the underlying property — the classic "coupled with an interest" language that, as Justice Fried also points out, is probably not sufficient to create such an interest in the first place.5 Third, Justice Fried rightly rejected the fiduciary-duty theories on the ground that whatever duties a principal owes to the agent, they are not fiduciary — they are merely matters of contract, which his earlier analysis showed did not apply here.
This decision means both less and more than it seems. It means less because it is a single decision by a single trial-court judge in New York County, and is not binding on any other party (or any other judge). It is certainly subject to appeal! Further, the particular language used for the option clause appears to have been specifically negotiated with Penguin — it is not the same as more-recent Penguin contracts I've seen, even allowing for the redactions — and would be irrelevant to other publishers' agreements. It means more than it seems, though, because it points out the Missing Document.
Nowhere in the exhibits available on line, nor referenced in Justice Fried's opinion, nor referenced in the motions and briefs on line, is there an agreement between Grimes and Lampack that covers this subject.
Nowhere.
And that is precisely where one would expect these matters to be spelled out. This reflects poorly upon the business and legal sophistication of both the author and her then-literary agent. There is no excuse for not spelling out, in a private agreement between the author and the agent that never need cross the publisher's desk (and thereby tend to reveal the author's private business affairs to the publisher), whether option books fall within commission rights; what the basis for commissions is on later-renegotiated contracts, as were also at issue in this case; how disputes will be resolved; etc., etc., etc. Lampack could, and indeed should, have prevented this entire case from arising by having an author-agent agreement that covered these easily forseeable circumstances. Instead, this Missing Document determined the result of everything else, because if there is one thing that a publisher's boilerplate license agreement is not going to do, it is enforceably obligate the publisher to compensate the literary agent for later transactions in which the literary agent has no involvement. (Hell, publishers try not to compensate anyone.)
So, in the end, this is the Case of the Missing Document... and yet another example of why literary agents need to be licensed and regulated: Under any competent licensing and regulation system, the Missing Document would not be missing.
Peter Lampack Associates, Inc. v. Martha Grimes et al., No. 603525/09 (Sup. Ct. N.Y. Cty.). You will need to accept a cookie and respond to a Captcha to actually see the docket; that link will take you to the case docket.
No, that language is not accidental. Under the Copyright Act of 1976, every publishing transaction that is not for a work made for hire or explicit transfer of the entire copyright interest from the author to the publisher is, by definition, a license... even though the Act never uses the term "license." I am sick of hearing purportedly knowledgeable people misusing the term "sale" as shorthand for these transactions. I understand why publishers continue to do so — it's in their best interest to mislead the author into thinking that she has "sold" something, with the implication of irrevocability and straitjacket of the common law of contracts. I also understand why the literary agent and author communities continue to do so — they have never truly inquired into the nature of what they're doing, plus they're really not sophisticated enough to recognize that the law of licensing is more favorable to the licensor than the law of sales is to the seller.
In any event, get used to seeing "license" in the rest of this entry.
This was handled in a separate motion; Justice Fried dismissed the claims against the various Penguin entities in an oral ruling on 01 November 2010 (Doc. 46), presumably relying on the same reasoning as in the last part of his decision concerning the author.
One might argue that the option clause was a detriment to the principal (author), not a benefit, because it prevented Grimes from freely auctioning her "next book-length work of fiction" on an open market to the highest (or at least most satisfactory) bidder. OTOH, I also believe that option clauses are generally a bad idea for everyone involved for much more fundamental reasons.
Interestingly, nobody reached the question of whether such language might violate the Copyright Act for a not-yet written work in any event. A book-length work of fiction is not one of the proper subjects of a work-for-hire agreement (see 17 U.S.C. § 101), and one cannot transfer a copyright interest in any work not yet fixed by any means except through the work for hire provision (see 17 U.S.C. § 201(b)). At most, one can transfer an interest in the income stream arising from such a to-be-created work... which leads us back to the first point made by Justice Fried.
But, on the other hand, I don't need elections to give me a migraine.
It's NaNoWriMo (National Novel Writing Month). That leads to two short pieces of homework: Evil Overlord's List, which applies to everyone (yes, there are lots and lots of evil overlords in even the most literary of fiction — it's just that their evil is often of the banal kind), and the Fantasy Novelist's Exam (which, again, applies to a lot more than just fantasy).
There's some interesting pricing news from the electronic publishing world, all adding up to the same thing: Publishers have no clue how much their wares are worth. You may recall that MordorCorp established a paywall for The Times (a newspaper that it had steadily made less relevant over the years anyway) earlier this year; now the first circulation figures are in, and 0.25% of Times readers pre-paywall are paying for a subscription. Meanwhile, Amazon readers are giving negative reviews based solely upon price (and the correct term is not "agency model", but "resale price maintenance agreement" — something that was unlawful until a couple of years ago when the Supreme Court reversed a century-old precedent), and another piece concerning the timing of editions that essentially gives away the whole show:
The publishing industry prices on container — not on content.
Interestingly enough, the industry doesn't even do a very good job of that. Compare the price differentials in commercial fiction among casebound, trade paperback, and mass-market paperback editions of the same book to the author's sales records; to the actual manufacturing cost per copy based on anticipated print run; to returns rates; to fixed costs for the work (primarily the author's advance payment, cover and typesetting cost, and the bare minimum of editorial attention, as all other costs are variable and not fixed); to any other way that any other industry sets prices... and you'll see the same problem that the music industry had with CD pricing in the 1990s. And, as implied by The Times's experience, that's not restricted to commercial fiction, either.
A scientific deconstruction (if that isn't too much of an oxymoron for anyone who has actually read Derrida) of the underlying premise of torture: that it works doesn't go nearly far enough. The bottom line on torture — even under the so-called "ticking time bomb" scenario — is that the interrogator already knows enough to know what questions to ask. If so, however, we're now into a somewhat more disturbing possibility — that the subject, since he/she allegedly knows the information sought by the interrogator, also knows when that information will become stale. That is, the subject has a finite resistance goal. Hmm. That reminds me of SEERS training more than a little bit... and demonstrates pretty conclusively that the "ticking time bomb" scenario is reflexively self-defeating.
Congratulations to the winners; and commiserations to the losers — mostly the American public that was forced (in Leo's words) to choose between the lesser of "Who cares?" yesterday, thanks to the dysfunctional "two-party system."
Unfortunately, that's not going to help the arts. At least in Canada, the arts community (now there's a contradiction in terms) is confronting the economic nature and future of the arts as a whole.
Now in electronic form, James Bond has a license to sell — and it's not from the UK print publisher, either. No official word on what's going to happen on this side of the Pond... or whether there will be a promotional introduction at £0.07 per copy for Casino Royale.
... which I suppose merits some celebration. But that won't change the fact that it's Monday.
Congratulations to the nominees for and winners of the World Fantasy Awards. Looking at the list of nominated book-length works, there is exactly zero chance of a positive sales effect... which is primarily the publishers' fault.
The NYT has discovered shocking, shocking news that I've known about for a quarter of a century: Debt collectors often have no documentation for what they're collecting. In that particular instance, a debt collector tried to repossess a car from one of my NCOs, but got stopped at the gate and asked my permission. A little paper research (all of twenty minutes) at my end demonstrated pretty conclusively that [name of Detroit Big Three finance company deleted, particularly since it has changed three times in the interim] hadn't bothered to record the out-of-cycle payment made before that NCO went on a three-month deployment to [classified], but for which his wife had the cancelled check. And the NYT is just now discovering what anyone who has held a command position has known for decades...
Or, if they wanted something a little bit more authoritative, the NYT could have turned to, say, the Hon. Terence T. Evans of the United States Court of Appeals for the Seventh Circuit:
Mr. Rubin reviews and approves the general form used on letters sent by Rubin & Associates. He does not, however, personally prepare, sign, or review any of the letters sent to targets, including Avila. This is understandable, for Rubin would probably be in the hospital with a severe case of writer's cramp if he did because some 270,000 such letters go out each year. That, by the way, comes out to 1,062 per working day, 133 per working hour.
The letters from attorney Rubin are actually the product of a nonattorney "legal assistant collector" who directs the computer to generate a letter on Rubin's attorney letterhead. Legal assistant collectors are provided with a training manual developed by Rubin to help them determine when an attorney debt collection letter is warranted. According to Rubin, the collectors use their "skill, judgment, and training" to determine when a letter should be sent.
Avila v. Van Ru Credit Corp., 84 F.3d 222, 225 (7th Cir. 1996).
Weird, trendy, unsupportable-by-documentation valuation isn't just for collection agencies, though; it's also the foundation of valuing entertainment-industry concerns. Of course, this isn't exactly news; taking a look at the financial press in the 1950s with the rise of Certain Television Networks would have found remarkably similar stories, albeit not remarkably similar headlines.
Another esoteric legal dispute at the boundary between patent law and ethics is slowly coming to the front burner: patenting of naturally occurring genes. This particular dispute is an echo of copyright law, and in fact is controlled by a twenty-year-old copyright law decision. In Feist, the Supreme Court held that copyright requires "originality," and explicitly rejected the "sweat of the brow" basis for copyrights; that is, no matter how much effort one put into sorting all of the records in a telephone book into accurate alphabetical order, that sorted directory could not be copyrighted because alphabetical ordering is not "original." In Myriad (the current patent dispute), the same reasoning holds, but for the patent concept of "novelty" instead of the copyright concept of "original."
Perhaps a sport analogy might help. There's an old aphorism that "speed kills," particularly for wide receivers in American football and wingers in real football. Time after time, though, reality proves that it's what one does with speed that kills — not the speed itself. One must know how to get to the ball at the right time, then what to do afterward, to actually use that speed. Just ask defenders whom they'd have more trouble defending: Cliff Branch or Dallas Clark in American football; John Barnes or Stanley Matthews in real football. With intellectual property, it's very much the same thing, but for "speed" insert "prior knowledge." All the prior knowledge in the world does not create originality or the novel inventive step (it just prevents you from reinventing the wheel if you already know about wheels, so to speak). Knowing about naturally occurring genes is just that prior knowledge; it's what one might do with that knowledge that might constitute a novel discovery justifying patent protection.
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constitute legal advice for your situation. It does not create an attorney-client relationship or any other
expectation of confidentiality, nor is it an offer of representation.
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Sausages?
Internet link sausages, as frequently appear here, are gathered from uninspected
meaty internet products and byproducts via processes you really, really don't want to observe; spiced with my own
secret, snarky, sarcastic blend; quite possibly extended with sawdust or other indigestibles; and stuffed
into your monitor (instead of either real or artificial casings). They're sort of like "link salad" or
"pot pourri" or "miscellaneous musings" (or, for that matter, "making law"), but far more disturbing.
I am not responsible for any changes to your lipid counts or blood pressure from consuming
these sausages... nor for your monitor if you insist on covering them with mash or sauce.
Archives
Warped Weft
Now live at the new site. I have arranged some of
the more infamous threads that have appeared here
by unravelling them from the blawg tapestry (and hopefully eliminating some
of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.
The Public Library of Law can help you
find the law... but not use it in court, as many of its resources are not in proper form and do not provide
all of the citation information needed in court papers
Legal, free e-books are available through
Online Books (University of Pennsylvania)
and Shakespeare (MIT)
Legal, free music is available through
ClassicCat.net
(what kind of music do you think you'll find here?)
These may be of interest; I do not necessarily agree
with opinions expressed in them, although the reasoning and writing are almost always first-rate (and
represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have
eclectic tastes, so don't expect a comprehensive listing.
A blawg is sort of like a blog on legal issues, but
usually has a lot more links to outside resources (other than other blogs) than does a typical blog.
Scrivener's Error is a blawg, not just a blog. You can find other blawgs at <?law blogs#>.
How Appealing
is aimed at appellate lawyers and legal
news in general. If you care about the state of the law, start here — Howard's commentary is far
better balanced, better informed, and better considered than any of the media outlets. To
concentrate on the Supreme Court, don't forget
SCOTUSBlog.
Some academics' blawgs with a variety of political (and doctrinal) viewpoints:
BoingBoing, by speculative fiction writer
(and 'net
activist) Cory Doctorow, is quite hostile to copyright enforcement efforts, particularly
regarding file-sharing
The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a
less Eurocentric view) at IPFinance
Cyberlaw (Stanford) has its agenda
grounded firmly in the so-called "digital commons," which might make a bit more sense if any of the
advocates of that viewpoint understood diddly-squat about population ecology
The American Constitution Society blawg
is a purportedly "liberal" counterweight to the so-called
"Federalist Society" (which, despite
its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe
that's all to the good.
![[self-portrait]](http://1.bp.blogspot.com/_aph-FWKPAtw/Sb7dbBwgg0I/AAAAAAAAAAU/xefH94KcXQA/S220/LawShark5204a.jpg)
Scrivener's Error
at 1024x768.