link to: 11:17 [GMT-6]

Life beats the alternatives, but it sure does get in the way of blawgging. Too, with this being the end of August, the publishing industry has been rather moribund for a couple of weeks.

• I just love it when people propose legal reforms without looking at the substance of either what they're doing or what others have done with the same situation. This proposal/concern expressed by Rep. Conyers is an excellent example... because it does not grapple with the underlying cause of the commercial problem: The probably unconstitutional work-for-hire doctrine, combined with economically enforced-and-enforceable easy transfers of the underlying copyright.

  They don't have those problems in Germany (they've got other ones), which has a vibrant copyright-based "industry." In Germany, there's no equivalent to work-for-hire for freelance works — certain (but not all) employee works belong to the employer, but that's it. And transferring the copyright itself happens only by will or force of law. However, nobody is even willing to raise this as a model for discussion in reforming US copyright to deal with chaos that was entirely predictable based upon not one, but four historical copy-making shifts — the player piano, film and television, phonorecordings, and home recordings — that occurred long before the 'net rose and changed not copy-making technology, but distribution systems.

  On the other hand, what Rep. Conyers is trying to do does have more than minimal value; §§ 203 and 304(c) of the Copyright Act are among the worst-written pieces of garbage in that entire badly-written piece of dreck, and the inconsistency of application by the different circuits has not helped (yet another reason to bring copyright matters into the Federal Circuit). I mainly object to putting a bandage on a bleeding skin lesion without first determining whether to cut the damned thing off.

• Meanwhile, those durned furriners are mucking things up by considering security interests in intellectual property, which would have been a huge benefit for any author caught up in a publisher bankruptcy... or even the Borders bankruptcy. If, that is, they applied to copyrighted works without implicating the First Amendment. Yes, sometimes theorists run into problem with not just the real world, but with other theorists.
• Here's a thoroughly entertaining diatribe against H'wood that ultimately misses out on one of the main causes. The problem with stupid movies is not just Michael Bay — there was much the same problem in the heydays of the Western half a century ago and of the Broadway musical before that. It is, instead, with the decoupling of "profit" from "means to achieving profit"... and the consequent rise of numbercrunchers from being the advisors to being the advisees. In short, it's the same problem as in publishing, writ larger because the sample sizes are so much smaller.

  That said, I seriously doubt that Michael Bay is shakin' in his boots at a broadside from some limey critic. That would require a conscience even more than it requires self-awareness. Remember, villains do not believe that they are, in fact, villains...

• Alex Wild doesn't quite go far enough in criticizing the (mis)use of the Creative Commons license. The real problem is that it is not a license, and is therefore misnamed; it is, instead, a revocable covenant not to sue:

  If you limit your use of {this CCL work} to {insert particular subspecies}

  then the current holder of the rights to {this CCL work} promises not to enforce his/her/its exclusive rights to {insert particular subspecies}

  else the current holder of the rights to {this CCL work} makes no promises whatsoever and you are subject to his/her/its whims under the full range of copyright, trademark, and other relevant law
  end;

  And that's it. Note, too, that the CCL does not bar artistic-integrity claims when those would otherwise stand... nor claims for plagiarism (which is essentially a trademark-like, or at least unfair-competition-like, claim outside of copyright law).

• In yet another attack from the pages of the WSJ on the presumably leftist predilictions of academé, the oft-ill-informed Joseph Epstein opines that it's jargon and jingoism that causes the problems with teaching literature. In a way, he's right; the problem is that he's criticizing the wrong subset of jargon and jingoism. If there is a clear, underlying problem with "instructors not having passion for the books they are teaching," it is that they're teaching the wrong books — and, in particular, they're teaching illusory courses that ignore historical reality, and fail to distinguish "should" from "is" and from "was."

  Consider, for example, the standard survey course in American literature. For political reasons, it begins in the early nineteenth century; it shouldn't. There wasn't an "American literature" at the time of Cooper, or even by the time of Hawthorne, Poe, and Melville. For political reasons, though, American departments are unwilling/unable to start American literature with Twain; they must, instead, be consistent with the nationalism, egotism, and manifest destiny view of American Exceptionalism From the Beginning. Frankly, I think an awful lot of readers — both serious students of literature and otherwise — would be better off not encountering the marginal cases like Hawthorne and Melville (let alone pre-Reconstruction poetry) until after they've fully assimilated that survey course; they'd be much better off and would not have had quite so much substandard dreck pounded into their skulls as exemplars of excellence.

  Then there's the whole "x views/experiences in literature" movement that is so ill suited to survey and nonspecialist courses. Studying "gay themes in nineteenth-century literature" while neglecting Wilde's little stint in Reading Gaol is more than a bit shortsighted. It's not that the themes are not worth discussing; it's that they need to be discussed in context, and most of the time that context is "This is not the mainstream; it was either disfavored or outright criminalized; and it sure as hell isn't the whole of the field." Unfortunately, the PhD and tenure processes strongly discourage scholars from admitting that anything they are doing is less than universal and earthshaking — and encourage obscurantist research. They can be reformed/corrected, but that would require doing the same across academia (by doing things like admitting that "lab hours" should be worth the same number of credits as anything else, for one thing).

  I say all of this as a holder of a degree in English who successfully avoided taking any survey course in American literature by taking advanced courses in subsets of American literature... and then specializing afterward (afterword?) in British politically-oriented literature and speculative fiction, then ending up over here in law.

Labels: arts, copyright, culture, intellectual property, mass media, politics