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.

24 October 2011

link to: 10:20 [GMT-6]

Still Life With Link Sausages

The unlaid plans of mice (and men) aft gang awry, as in the last few days here at Casa de Lawshark. Two sleepless nights in the last four, an inquiry on HathiTrust that I have to finish up (hopefully today) before continuing to blawg on that monstrosity, and the usual variety of nonsense make for a particularly underdone platter of link sausages.

A blog entry hosted at the LAT this morning discusses one of the many, many holes in the Copyright Act: droit de suite, the collection of fees from later sales of pieces of art for the benefit of the artist similar to royalties from the sale of copies of books or recorded music. Interestingly enough, the piece links to two law review articles... and commendably to the two most-relevant ones, not just two by random California law-and-culture vultures. (Yes, they do exist; in fact, there's a law school in the LA area with a near-plurality of faculty fitting that description!)

I do beg to differ with one aspect of the prevailing analysis of droit de suite, though, and recorded music provides a hint of the problem. The Copyright Act concerns itself with the right to copy; everything else in and around it is (or, to the cynic, is peripherally related to) concerned with ensuring that such a right — but not obligation — remains with the creator of a covered work. Musical compositions are a special case, though; the statute recognizes that there's a difference between a performance of a piece of music — something that can be technically copied only for the ear — and the composition itself. Unfortunately, the cooptation of ASCAP and BMI by recording companies, or by "music publishers" with substantial recording interests, has too often led to improper conflation of these distinct interests. One might argue that book publishers are trying to do the same thing with e-book rights, but that's neither new (given publishers' insistence on controlling derivative works like audio rights) or quite the same thing (as arguing over the form of a reproduction is still an argument over the essentially-unaltered reproduction).

In any event, it's a fascinating blog entry that fails to grapple with the "copy versus original" problem at the root of droit de suite... which is not surprising, as droit de suite itself fails to grapple with that problem, largely by assuming it away based upon technological copying capability at the time droit de suite (and related measures, such as the California provision being discussed in the blog entry) became committed to print. Then there's the philosophical question of the relationship between a copy of a work of visual art and the "original"... and whether that matters. As an obvious example, comparatively few people have ever visited the Museo Nacional Centro de Arte Reina Sofía in Madrid and actually seen Guernica; the "meaning" of the original, though, does not seem to relate all that closely to, or be limited to, a quarter of a square meter of canvas.
There's a much deeper question of the relationship between money and the visual arts to consider, too — and the money-laundering aspect "Prospero" evokes is just a window into "patronage." Authors need to have at least some awareness of this, too, because many current publishing contracts with their excessive noncompete clauses and attempts to take ownership of the author's name come close to reestablishing patronage in a particularly vile form, as Kiana Davenport has discovered.
Yesterday's NYT included a thought-provoking article against "simplification" as a universal lifestyle in response to mental health conditions that desperately needs consideration in the American education system. It is perhaps easier to consider in the context of a more-visible, physical disability. A world-class wheelchair rugby player is simultaneously disabled and gifted... but the American education system, even more so than the rest of the American politicoeconomic structure, denies that possibility, instead demanding that one be considered either exclusively disabled or exclusively gifted in order to obtain any of the benefits of/for that status. One might wonder if Jared Loughner's personal history contains any consequences of that false dichotomy (or "trilemma," as the "normal" region is also involved in the consideration); I simply do not know, but neither would I be surprised, as implied by a few passages concerning Ms Myrick's own situation and Ursula K. Le Guin's story "Vaster Than Empires and More Slow."

Labels: arts, copyright, culture, intellectual property, life, politics, publishing

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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.

Links of Interest

Links open in a new window.

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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