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.
Just a couple of random sausages today (although not much whine, actually); this blawg will return in 2011, two days from now, unless something Really Really Blawgworthy happens in the interim. In short, that juris doctor degree indicates that you really should trust me...
Marcelo Gleiser blew it in an essay at NPR, with a claim that religion is merely an outgrowth of religare, and that a sense of wonder in nature's beauty is therefore religious in nature. Leaving aside, for the moment, the cramped and linguistically imperialistic equation between the etymology of a single word and its application to worldwide phenomena, Gleiser's statement is factually inaccurate. By way of analogy, it elevates the germ theory of disease to the default perspective through which all human frailty must be examined — meaning that trauma, genetic defect, nonbiological physiochemical reactions, and unknown causes must first be filtered through a perspective of virii and protists. That won't prove much help in setting a broken bone, or diagnosing phenylketonuria (which, by the way, is covered in all of the basic first-year biochemistry textbooks), or treating/preventing radiation sickness, or recognizing Ted Bundy. In short, it assumes its conclusion, and then uses that assumption as the only warrant in the argument. Since it's just after that time of year in which professors are turning in grades, I'm giving this essay a C-... and it gets a grade that high only because it did, in a way, spot part of the issue.
Here's a way in which classical musicians are better off than are authors: At least some bankruptcy judges require orchestras to continue paying the musicians, even in bankruptcy. Contrast this with the mistreatment of authors when publishers go bankrupt. As it happens, the particular result in the Louisville Orchestra matter is virtually demanded by the Bankruptcy Code, which gives an extremely high priority to claims by employees. As authors are (ordinarily) merely independent contractors with contract claims (under the Bankruptcy Code), it is not surprising that they'd be behind sales drones who couldn't sell books, but are owed salary and benefits, in recovering from the debtor... merely frustrating.
This points out a serious perceptual gap in the Bankruptcy Code, and indeed in general economic policy. Both parties — and most economicsts — are extraordinarily fond of proclaiming that "small businesses are what create jobs and growth." However, that also means one must allow for the failure of businesses, small and large, in the system... and the system is disturbingly tilted against the small business that provides essential services and property to a larger one, especially as a result of that larger one choosing to use more "independent contractors" than "employees." I am not certain where the appropriate balance lies; I am only certain that it's not being discussed or considered, but instead just gets swept under the "freedom of contract" rug (leaving a coffee-table-sized pile of dust slightly off center).
Light news, so light sausages — and unlike many other sausage sources, I don't use (excessive) fillers!
The fabulous Sarah Weinman pours a well-deserved bucket of cold water on boosterism for e-books. Not on enthusiasm, or recognition that they have a complementary role — on boosterism. The blatherings of people like S3th G0din that e-books will destroy print publishing remind me of the proclamation that punk will destroy rock (just how are your royalties these days, Sir Mick?), that cable will destroy network TV and the movies (care to take a guess who owns 2/3 of cable and two major film studios?), and that word-processing will destroy elegant prose (there would have had to be a preponderance of elegant prose in the first place... and I've actually read Dickens, Hawthorne, Hemingway, et al.).
The key point is that "success" does not have a uniform definition — not for authors, not for publishers, not for retailers/distributors. The idiocy of G0din and his ilk is that they impose their personal definitions of "success" on everyone else; any historian could tell you that's a sure path to "everyone else"'s ruin.
The NYT swings at H'wood again... and misses. While asserting that film executives are now emphasizing quality, the article fails to note that with one exception (James Cameron) every single point of emphasis by the studios cited is on filmmakers under 45. Yet again, H'wood's alarming emphasis on youth and enthusiasm (over old age and treachery) raises its ugly head. That's not to say that fresh blood is unnecessary, or that youth is never brilliant (Welles's early work behind the camera, to maintain parallelism with the NYT piece); it's only to say that the treachery of old age can lead to the subtly timeless All That Jazz instead of the bombastic, youth-oriented Transformers. Besides, young talent works cheaper...
...we're about to find out, as I pick on the NYT for telling only part of the news that's fit to print.
The NYT editorial page exposes yet more ignorance about IP and cultural imperatives with a seemingly contemplative criticism of Chinese attitudes toward IP enforcement. The problem is the unstated assumption in the article: That China must adopt purely post-Enlightenment Western attitudes toward foreign intellectual property in all respects, without any acknowledgement of its own cultural imperatives. For a couple thousand years, Chinese culture has been one that not only approved the borrowing/theft of the creative work of others (and, implicitly, "noncreative" innovation), but celebrated a Mandarin's (or other intellectual's) ability to silently do so... and expected the audience to recognize and applaud the borrowing as a sign of erudition and deep analysis. What we, in the post-Enlightenment West, might call "plagiarism" was instead an accepted means of communication.
The real problem with the editorial is not that the goal is unworthy; there is a legitimate culture clash here, and the Western interests are in fact being directly harmed. The real problem is that the editorial considers only policy and WTO compliance issues without even questioning whether there might be something deeper... and the same would go for the Islamic world if that were considered, as Sharia (under at least some interpretations) disfavors — and under some more-extreme interpretations actually prohibits — private ownership of intangibles like intellectual property. In short, this is a culturally imperialistic editorial that fails to acknowledge its cultural imperialism... and I therefore disagree with it, even though I think its purpose does make some sense (as, arguably, a "pro-Chinese" approach to this issue would be equally culturally imperialistic!).
In summary, context matters — and forcing one's idiosyncratic context on someone else seldom leads to defensible results (that's a hint for the Mad Tea Partiers, too).
Clarisse's ribcage was delicious. So was her leg.
Wheelchair Lamb
2kg boneless leg of lamb, butterflied
juice of 2 tangerines
1 Tbs ginger paste
8 marinated, garlic-stuffed olives
1 Tbs black cardamom seed, ground
1 Tbs cumin, ground
1 tsp chipotle pepper, ground
1 tsp black pepper, coarsely ground
4 tsp coarse sea/kosher salt
2 Tbs extra-virgin olive oil
1 large onion, sliced into 1cm rounds
Put the tangerine juice, ginger paste, and olives in a blender or food processor; process until fairly uniform loose paste. Open out the leg of lamb and rub the paste all over the lamb, and let sit on the counter in a nonreactive dish (a glass pie dish is ideal) for about 45 minutes.
Tip any liquid in the marinating dish back into the blender/food processor. Add the rest of the spices and the olive oil to the blender/food processor and process quickly until mixed. Pour this over the lamb and rub in thoroughly, then let sit on the counter for about two hours.
Preheat the oven to 325F/160C. Lightly spray or oil a roasting pan, and make a single-layer bed with the onions. Put the roasting pan in the oven for five minutes. Meanwhile, drain any remaining marinade off the lamb, then give it a quick pat with a paper towel to remove excess surface moisture. Pull the roasting pan from the oven, quickly lay the lamb on the onions (whether you leave it butterflied or re-roll it is up to you), and return to the oven to roast for about an hour — until it is just short of the desired doneness (we go for quite rare around here). Turn the oven up to 425F/220C for the last five minutes or so.
Remove the lamb from the roasting pan and allow to rest, covered, for 15–20 minutes. Slice thinly across the grain and serve with those onions, which should now be nicely softened and tasty.
Just picked up some lamb chops for dinner, which shall be served extra rare.
For real people, we have life sentences (or the death penalty, which is essentially meaningless and even pragmatically a bad idea). For unnatural persons, we don't... and rehabilitation just doesn't seem to work for them. <SARCASM> "Limited liability" really means "limited liability." Maybe we should try treating their "parents" — passive investor funds and third-generation plutocrats — as sociopaths instead. </SARCASM>
The uniform of business (except on tropical archipelagoes) seems unlikely to survive if we ever get off this planet... which might lead to some interesting speculation about red velour shirts and black polyester trousers with no pockets, but that's for another time.
Marijuana, abortion, taxation, and e-books — let's try to discuss one of them rationally. (I should add that Mr Cornell's first point fails when one considers the rising tide of paperback originals, but it's still an interesting list.)
Thanks to remora duty and other TMI, this will be a minimalist sausage plate, not even qualifying as a platter — even though it's rather chewy and filling.
Here's an interesting jurisprudence issue regarding the so-called "agency model" (which is actually a "resale price maintenance agreement") for e-books. After the Supreme Court's ill-considered opinion in Leegin Leather Products, it is no longer a per se violation of federal antitrust law for a manufacturer to require a retailer to maintain a minimum price level. (It may still be a violation of federal antitrust law... but that must be judged under the so-called "rule of reason," which basically means that the lawyers win.) But what about state antitrust law? And, in particular, what if the purchaser is in Maryland (which formally prohibits all minimum-price agreements), the manufacturer is in New York (which may, or may not, do so), and the retailer is incorporated in Delaware (no prohibition) and headquartered in Washington state (no prohibition)? Do we then have a "dormant Commerce Clause" problem that prevents Maryland from enforcing its statute, in favor of its own consumers, against the out-of-state Big Brazilian River? Might this be a good question for an exam in either Antitrust or Federal Courts? Are these questions too rhetorical for early mornings?
The following thirty-one US Senators, who were the "no" votes yesterday on repealing "Don't Ask, Don't Tell, Don't Keep Patriots in the Military" (Senate Roll Call Vote 111–281):
They're all Republicans. Abraham Lincoln would be so proud of what has become of his party. So would John D. Rockefeller.
They're all Christians who appear to be unfamiliar with "love the sinner, hate the sin" — which is particularly ironic in that military personnel, by the very nature of the military, must be prepared to kill.
They all represent states in which the balance of political power resides in rural, and specifically in agricultural, areas (and that is partially due to gerrymandering).
With only one exception — and my colleagues knew him to be an arrogant self-selecting "exception" in an awful lot of ways — none of them have command experience (that is, were actually responsible for ensuring the trust, teamwork, morale, and unit effectiveness) with a significant number enlisted personnel in the all-volunteer military. I do have that experience (the better part of a decade, in fact); in my judgment and experience, the fastest and surest way to undermine trust, teamwork, morale, and unit effectiveness is to encourage witch-hunts within the unit, (edit/clarification:) since I had to pick up the pieces from a predecessor's attitude more than once.
Hell, only a handful have any military experience at all, and particularly not with the all-volunteer military. Senator McCain's experience, for example, was as a squid fighter pilot during the draft era... and literally all of his supervisory experience was with other graduates of Annapolis.
They're all whiter than a Klansman's bedsheet.
With only one exception — and she's from Texas — they're all men. Of course, that all-too-accurately represents the Senate as a whole, but still...
In short, their votes are either cynical appeals to bigotry or "principled" votes in support of "principles" of which they have no experience, let alone understanding.
Congratulations, gentlemen (and you too, Senator Hutchinson). You're exactly what I've come to expect from years of political maneuvering based upon the politics of divide-and-conquer... and the best bloody legislature that money can buy. The oath of office requires protecting the Constitution against all enemies, foreign and domestic; you're now all on that enemies list.
Still finals week... therefore, still distracted...
On the effectiveness (or not) of Mystery Security Theater 3000, as implemented by your friendly neighborhood sexual molester TSA. There are so many exceptions to the system that it doesn't even make sense under the rubric of "something must be done; this is something; therefore, this must be done."
Paul Krugman on another triumph for ideology over facts: The "government is always bad" meme and the banking crisis. Apparently, the Republican party never learned anything about the tulip bulb bubble... or about corporatism (which, being French in origin, should have been suspicious).
It's finals week for the elder remora, and I am therefore distracted.
A critically important decision on authors' and musicians' rights came from England yesterday, via the only feline worth listening to, the IPKat. This time, Pink Floyd managed to hold EMI to its contract terms: Since the contract didn't authorize sale of individual songs or of electronic downloads, EMI can't do so.
Rupert Murdoch's empire doesn't just approve of the TRAITOR Act1 — it tries to act like the government and implement it for private gain against dastardly enemies of the state... or at least dastardly enemies of higher circulation figures of newspapers too wretched for the bottom of a birdcage. This is the real danger of the TRAITOR Act and its kin: That, by making such behavior acceptable for governments when someone in the government says it's necessary (or, at least, convenient), it will become possible (or even acceptable) for private interests to do the same.
The draft is ending... im Deutschland (as a matter of pity for American monolingualists, auf Englisch).
At least in the 1960s — in contrast to that pesky draft — they had decent protest music. Where is it now?
Maybe smart independent bookstores can survive while the big brick-and-mortar chains are dying by being smart about technology. Of course, it would help if the independent bookstores weren't simultaneously stuck with both the returns system (which actually costs them money, net, when everything is extended) and oligopolistic distributors... In short, it's not just the part of publishing that is visible to Joe Book-consumer that needs reform.
Professor Chiang clearly explains why patents are incomprehensible, and it's not the cutting-edge science: It's the bad writing. One might also question how scientists, engineers, and businesspeople — who are not responsible for the bad writing in question — are supposed to tell whether they're infringing an existing patent... or maybe that's just another aspect of ensuring continuing employment for lawyers.
The USA Totalitarian Regime Activity Incitement To Obscure Reality Act, Pub. L. No. 107–56: they had to destroy representative democracy to save it.
Another iteration of the "two cultures" debate: commercial- v. university-supported literature. The ultimate problem with this comparison is, in the end, quite simple: The two really are not in opposition; they are, instead, amorophous symbiotes, a yin-yang symbol made with amoebae. The article in question is more interested in finding opposition than in accuracy... perhaps because its author appears to have so little knowledge of ecology and biological relationships, leading back to the "real" two-cultures debate between science and the arts. And, in any event, it's even more amusing to consider all of the excluded areas, like "avant garde art colony work" and "politics" and...
In an interesting bit of self-reference, consider the detective novels by "Richard Castle," the lead character in ABC's Castle. At first glance, this is just an amusing conceit. However, it also illuminates a significant trademark problem in the way the publishing industry handles ghostwriting: Does the brand designation "by Richard Castle" designate a discernable, unique origin of the goods in question? Perhaps... but only if all "Richard Castle" fiction is written by the same author. If it's by multiple authors — and, especially, by multiple authors who do not work together — it's rather like labelling some blue-veined cheese made in Wisconsin as "Roquefort," (an appellation d’origine protégée), even if the particular Wisconsin cheese in question is equally tasty. It's also an interesting contrast with the fashion industry's rabid foaming at the mouth over auctioning of counterfeit jewelry and dog toys that moderately resemble designer purses. Finally, it also calls into question the dubious practice of market-demanded pseudonyms: Is labelling those books by Megan Lindholm as by "Robin Hobb" deceptive as to their origin, quality, and nature? More to the point, what about more-identity-sensitive decisions like holding out Primary Colors as by "Anonymous"?
And things will remain grey in the grey market for copyrighted imports for a while longer, as the Supreme Court punted this morning. Because it was unable to generate a majority — with Justice Kagan recused, the vote was 4–4 — the Court affirmed the Ninth Circuit's Costco decision by an equally divided court. That is not the same thing as an affirmance by a majority vote; it means only that the Ninth Circuit decision continues to hold in the Ninth Circuit and nowhere else. So for the present, importing copyrighted goods into the Ninth Circuit from outside the US without a license to do so violates the law... but not into, say, New York. This might have some interesting litigation issues, particularly for computer programs. For example, Microsoft has licensed crippleware versions of both Windows 7 and Office to third-world nations; importation of legitimately purchased copies from Nairobi to Los Angeles would have copyright problems, but perhaps not to Chicago. (All that leaves aside the enforceability of the EULA, or the stickier question of what to do with the laptop of a student who legitimately purchased the Microsoft software in Cairo as an undergraduate and then comes to the US for grad school... and then tries to sell it to another student when he upgrades.)
... and these are link sausages of very suspicious origin indeed.
According to the NYT — which, in this context, means it's based on highly questionable assumptions about sales figures based on an undisclosed survey method — romance, not speculative fiction, is leading the charge to e-books. The most interesting thing about the article, though, is its emphasis on covers... and the shame they cause some readers, a problem not restricted to romance (remember the "adult cover" editions of the Harry Potter books in England?). This is a great big hint concerning the conventional wisdom about cover design that nobody in the New York commercial publishing enclaves is going to get, let alone use to change self-destructive behavior: That the conventional wisdom regarding the relationship between cover design and sales needs to be reexamined based on verifiable, replicable evidence.
Meanwhile, the NYT also provides a perspective on the American attitude toward translated fiction, which is really no better or worse than anyone else's... at least in commercial publishing. Translation simply isn't easy, especially with linguistically-tied metaphors — how else to explain the common, English-language misunderstandings of, say, Death in Venice? The problem commercially, though, appears to be that works in translation require a champion with the power to drive sales. Although that's helpful for every book, it seems an absolute prerequisite — compare the experiences of Laura Esquivel and Jose Saramago... or Mario Vargas Llosa.
Which is more likely (or frightening): Living with wolves... or with Sarah Palin "snuff films"? Hey, I know: Let's combine them, with equal firepower! Since the wolves can't actually operate semiautomatic rifles, I think that means taking away all non-natural weaponry.
Meanwhile, China is getting ever-more hysterical in its anti-Nobel rhetoric, while forgetting that there are more than a few precedents that did not provoke similarly childish reactions from their own governments, such as Dr Martin Luther King, Jr and Archibishop Desmond Tutu. Sounds to me like the bully is afraid...
There's quite a bit of controversy right now about the WikiLeaks founder's arrest for some sort of sex crime. On the one hand, it's virtually impossible to avoid suspicion of the timing (and probably fact) of the exercise of prosecutorial discretion; after all, not every sex crime (of any nature) gets prosecuted at all, let alone referred to Interpol. On the other hand — crediting arguendo the complaints — it's also virtually impossible to defend the underlying alleged behavior. This is, perhaps, an excellent example of the Ezra Pound problem: How does one deal with the character flaws of someone who is better known for an unrelated social and public good (in the economic sense of "good", not the normative one)? There really isn't a very good answer... and bringing it into the even-murkier world of sexual politics and expectations guarantees that "truth" is not objectively verifiable in any event.
def(market) = new, fully returnable trade bookstores for face-to-face sales with less than 5% sales of nontrade books (e.g., textbooks) by unit, across the nation
is about 2100 on unit sales, and about 2050 on revenues... and antitrust scrutiny (of various kinds) is supposed to be triggered when the HHI exceeds 1600.
Jim Macdonald reveals the secret formula to becoming a commercially published author of a novel... and it has nothing to do with an MFA, with expensive workshops, or with battles with/for Art led by the undereducated; neither does it have anything to do with getting "noticed" through overpriced vanity presses and/or jumping to self-publication without submitting to commercial publishers. OK, it's one secret formula, with one too many unguided rewrites for my taste. But then, I'm not undereducated, so my battles with/for Art are a little bit different from those Bohemian artistes — the ones more interested in being Artists than in producing Art — and for many writers one more unguided rewrite than Mr Macdonald recommends would be a really good idea. And that definitely included you, Ghost of Mr Heinlein, because most of your later work — after you and your second wife starting believing your own press releases — is/was utter crap.
There's been lots going on, but not a lot that's blawgable; it's been a combination of too small for a blawg entry, too large for a blawg entry, or too personal for a blawg entry (e.g., TMI on migraines and remoras). That said, here are a couple of items to chew on, but they're both heavy going:
I'm not exactly late for the party, but this piece on Amazon's disrespect for what it is selling has been making the rounds. At a deeper, theoretical level, though, it indirectly exposes a question about publishing as it exists. Put as baldly as I can: Is it appropriate to expect the same purely financial returns in a business that is built upon preexisting, specific government protection for something of cultural value, or should/must one allow for a hidden "tax" on returns in exchange for the protection of the First Amendment?
Amazon is not subject to an equivalent of "dram-shop laws" if it sells a copy of The Pr0t0c0ls of the Eld3rs of Zi0n to a larval antisemite who then goes out and blows up a synagogue; nor is Amazon liable if someone buys a used copy of Hitman through its affiliate-seller store and kills an ex-spouse. Similarly, Bertelsmann is not liable if someone buys a copy of The Autobiography of Malcolm X, decides that The Man must die, and engages in a killing spree on the Washington Mall. Although we're still fighting over whether the person/party who sells actual weapons is liable — it's a much more difficult question, both procedurally and substantively, than it seems — the First Amendment pretty well insulates the publishers and sellers of written material from liability (short of purposeful facilitation of direct confrontation on some misbegotten daytime talk show, and even that is dubious at best).
Nonetheless, investors and managers expect to free-ride on the First Amendment, obtaining the same returns with the "free insurance" of First Amendment protection as they do from any other kind of business (such as selling soap). I'm not arguing that publishing should therefore be nonprofit, by any means; I'm arguing, instead, for some recognition that the appropriate median return from distributing First-Amendment-favored materials must acknowledge the subsidy that it gets from the First Amendment, and therefore will be discernably lower than that in a true commodity industry. And, in turn, that goes for distributors. Hypothetically, if the First Amendment is worth a 3% premium, investors should be satisfied with a 5% return in publishing if they would otherwise be satisfied with an 8% return. (Those numbers are just for illustration.) However, they're not; and neither are managers, particularly those imported from other areas of the entertainment industry that are somewhat farther from core First Amendment concerns.
In any event, what one is selling does matter to the appropriate means of selling, whether "appropriate" is measured by "profits accounting for all externalities and subsidies" or any other means. Mr Bezos, for one, clearly does not understand that.
Ritual disclaimer: This blog contains legal commentary, but it is only general commentary. It does not
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.
I approve of no advertising appearing on or through
syndication for anything other than the syndication itself; any such advertising violates the limited
reuse license implied by voluntarily including syndication code on this blawg, and I do not approve
aggregators and syndicators whose page design reflects only an intent to use the reference(s)
to this blawg without actually providing the content from this blawg.
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.