Scrivener's Error

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Scrivener's Error	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.

19 May 2011

link to: 12:42 [GMT-6]

Bitches (and Parts Thereof)

OK, you can pull them out from under the mattress: Playboy is putting its entire archive on digital readers. It's going to be very, very interesting to see how they handle the Tasini problem; back in the day when people would read Playboy for the articles (and fiction), the contract did not acquire electronic display rights for the pieces... so the only way the Bunnies can do this is via the reprint/reissue privilege in § 201(c) of the Copyright Act of 1976 (which applies here, even though the governing law at the time of initial publication was the 1909 Act). And technologically, the formats required by (and reader capabilities built into) digital readers — the iPad in particular — look somewhat more like what the majority in Tasini objected to than what they felt was allowable...
Ryan Britt offers an interesting, thought-provoking take on fan reaction when series creators don't meet fen expectations. This is much more than George R.R. Martin not being your bitch; it is also a rather reflexive piece that never acknowledges its reflexiveness.

Remember, "fan" is a elision of "fanatic" — and that shows the actual source of the problem. Trufen simply don't have enough diversity in their fanaticism. Perhaps the best example is stereotypical Trekkies who rearrange their lives around one particular fictional construct. However, even in my own Trekkie phase — yes, I Was a Teenage Trekkie could well be semiautobiographical pastiche, bad grammar and all — my own fandom was quite diverse, in that it went far, far outside of slavish devotion to one oeuvre (which I could spell correctly even then). This isn't restricted to visual-media scifi, or even speculative fiction in general: There have been disturbingly similar followings for other properties, beginning not later than Sherlock Holmes. In any event, I slaked my thirst for more by discovering more; that is, the best solution to ire at George Lucas for the "prequel trilogy" is not fanfic, but a library card.
The 'net's only worthwhile feline the IPKat offers a useful summary of the Hargreaves Report (with an embedded link to the report itself) with a "top ten" list of recommendations. I'm still digesting the whole thing, but I have a few sideways reactions to the report based on reality:
- Lord Hargreaves (and/or his staff) need(s) to learn how to write declarative sentences when making a declaration; convoluted sentences when describing something convoluted that is not amenable to simplification; and know the difference between the two. This is not a matter of "it's an academic treatment; what did you expect?"; it's a matter of "the writing style is ill-adapted to the material."
- I am sick to death of the copyright system being blamed for inadequacies in other parts of the law; in particular, for inadequacies in the law of insolvency and of estates. If those two areas of law — in both the UK and the US — required accurate records of copyrights held, transferred, and forfeited, at least 80% of the "orphan problem" that takes up so much space in Hargreaves' report would never exist... and those in a position to prevent it from recurring would be on notice to do so. Don't blame copyright for solicitors'/lawyers' carelessness.
- The most disturbing aspect of the report is its rejection of the US concept of "fair use" as a possible reform to UK law. Leaving aside the diffuse nature of "fair use", this reflects a parochialism that fails to consider free expression issues, whether those free expression issues arise from the First Amendment, from the UN Declaration on Human Rights, or from various EU proclamations on freedom of expression. That's not to say that "fair use" is, by any means, perfect — just that it is better than "fair dealing", even if one considers only the law that is definitively binding on the UK. I'm afraid I must give Lord Hargreaves at best a C+ for his discussion of the context in which fair use/fair dealing arise... and, sadly, this is the best-written part of the report.
- On the whole, the report demonstrates little understanding of the creative process and how diverse sources of inspiration lead to new works. Instead, it focuses on the pseudoeconomic concept of "efficiency" as an overriding objective. This is also reflected in the blithe dismissal of relationship between form and content when discussing digitization of existing materials — something that a century and a half of battles over whether photography (and, in particular, photography of existing works of art) is itself creative and/or infringing should have cautioned against.
- I think also that the economic context of "innovation" has overwhelmed all other contexts of "innovation" — particularly in the large section of the report concerned with patents, in which virtually every concern and conclusion is based upon enhancing the economic side effects of invention, and not the advancement of the underlying "useful Arts and Sciences" (to import the American term). This is a peculiar inversion of "hindsight bias": A "foresight bias" in which all future value is measured against direct profit potential.
On the whole, I'm not encouraged.

Labels: arts, copyright, intellectual property, internet, jurisprudence, mass media, politics, publishing

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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.

Links of Interest

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Writer Beware and the Writer Beware Blog provide essential knowledge for writers who don't want to be ripped off
Writing-World.com published by the former managing editor of the now-defunct Inklings
Agent Research & Evaluation provides both free and paid analyses of literary agents
US Copyright Office, including both registration forms and records and quite a bit of other helpful information
Trademark Electronic Search System (TESS) allows searches of granted, pending, and some rejected trademark registrations
US Supreme Court Opinions from the current and past couple of terms
Law Library of Congress includes statutes for free
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?)
- Music.Download.com (long-awaited successor to MP3.com)
- Janis Ian (artist)
- John McCutcheon (artist)

Other Blawgs, Blogs, and Journals

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:
- Professor Anthony Arend (Georgetown Law)
- Professor Stephen Bainbridge (UCLA Law) (aka "The Perfesser")
- Professor Jack Balkin (Yale Law)
- Professor Dennis Crouch (Missouri Law) (better known as Patently-O)
- Professor Michael Froomkin (University of Miami Law)
- Professor Eric Goldman (Santa Clara University Law)
- Professor Rick Hasen (Loyola-LA Law)
- Professor Brian Leiter (U of Chicago Law/Philosophy)
- Professor Lawrence Lessig (Stanford Law)
- Professor Michael Madison (Pitt Law)
- Professor Rebecca Tushnet (Georgetown Law)
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.

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