link to: 11:46 [GMT-6]

• So some government officials in both countries are advocating that the US/UK governments should sell arms to those who oppose Qaddafi Duck if he won't leave office. How'd that work in Afghanistan with the Mujaheddin, anyway? That's not to say that everyone must be bound by every possible historical analogy; it's only to say that historical analogies provide guidance, particularly in the absence of real, principled, fact-based rationales for why they don't apply to particular instances — and are not irrelevant to wish-fulfillment exercises like this one.
• An interesting look at the liquidators' business model at closing Borders locations indirectly discloses, yet again, that nobody is paying attention to the real legal and economic basis of the author-publisher transaction: A license. If they were, they'd be seeking licensor (author) approval first...
• As a contrast, congratulations to the finalists for the Man Booker International Prize... which actually pays the authors.
• Yahoo! has been has been held liable as a copyright infringer in Italy for enabling file sharing through its indexing system in a preliminary ruling. That always turns out well for everybody. Of course, one simple solution would be for the major general-purpose indices to simply exclude the known pirate havens from the default results, and require users to click a button that says something like "I want to see results that probably include infringements of copyright, too"... which would, as I understand the reasoning as explained both in that entry and elsewhere, have satisfied the court. (I'm afraid that my Italian is pretty much limited to avoiding crowd trouble at a Lazio-Roma match; it's not up to legal analysis.)
• Professor Buchanan politely eviscerates the Confidence Fairy — the dubious-sexual-orientation relative of the Confidence Man shunned by members of the Heffalump establishment, except in airport and bus-station bathrooms. And except where Confidence Fairy dust is really necessary to make investor returns fly...

Labels: arts, culture, internet, military, politics, publishing

link to: 13:41 [GMT-6]

• Time for another Borders bankruptcy update. Now things that actually matter to authors are starting to get filed...

  First up, Borders management has filed a motion (Doc. 457) to continue to pay high salaries and bonuses to "key employees." Although this is routine in bankruptcy — under the rationale that it will actually cost more to the bankruptcy estate, and make a confirmable reorganization plan less likely, to bring in outsiders and bring them up to date on the details of the debtor company — it shouldn't be... and it especially shouldn't be routine when it is clear that managerial deficiencies of many of these individuals contributed to the need for bankruptcy filings in the first place. Further, it seems rather ironic, in this particular instance, to implicitly claim that people unfamiliar with Borders can't help it emerge from bankruptcy given (a) the high degree of turnover in the past three years and (b) that that turnover almost uniformly brought outsiders unfamiliar with book retailing in. Nonetheless, I expect that this plan is going to be approved, after some posturing and gnashing of teeth; as these things go, it's not particularly outrageous. (Whether this provision of the Bankruptcy Code should even be available to retailers is a policy question for another time.)

  Second, Borders has now proposed specific deadlines for filing of proofs of claims (Doc. 475). Although this is not certain to be approved next Thursday (07 April), it is highly likely. Presuming such approval, proofs of claim (PDF) would be due on 01 June 2011 for nongovernmental entities and 15 August 2011 for governmental entities, using a slightly-customized proof of claim form. Now, one caution: This is not the procedure for authors, but for direct creditors like publishers. (If you're an author who self-published, put on your publisher hat — no, not the propeller beanie, the Homburg.) Publishers — particularly small publishers — who do not file by the date actually approved by the court will lose their claims. Fortunately, the form is pretty simple to fill out, and does not require a lawyer, a formal appearance, or any fee. That's not to say that some publishers won't screw it up; [name of midmajor publisher withheld to protect the guilty] screwed up and didn't file a complete proof of claim in [relatively recent distributor bankruptcy proceeding], resulting in a five-figure loss to the publisher.

• I'm also going to make a prediction about the Google Book Search settlement negotiations — a prediction that will be as difficult as shooting fish in a barrel.

  No matter the other details, the structure of the settlement will shift a significant portion — and perhaps all — of the administrative burden from the infringer (Google) to the copyright holder(s) (authors and, in a few instances, publishers).

  This is the broader version of Judge Chin's "opt-in/opt-out" concern. It is also consistent with the nonstatutory, but usually determinative, fifth fair-use factor: Administrative convenience. Unfortunately, the egregiously defective Authors Guild complaint in this matter gives this argument much more practical weight than it deserves. Were we not contrained by the inept and unclear statements of infringement theories in that complaint, we'd be on much stronger (or at least clearer) ground in rejecting Google's implicit claim that the administrative burden of policing copyrights must, as a matter of law and of policy, fall upon the copyright holders. Nonetheless, as Judge Chin points out, the proposed settlement goes so far beyond the complaint that those broader considerations are going to have a significant — and perhaps dominant — role in fashioning a remedy in this matter... whether by settlement or by the court.

  Let this be a lesson to you, young lawyers: The quality of writing in your complaints makes a difference. Remember, too, that quality of writing is more than just the number of typographical errors one avoids through anal-retentive proofreading skills; the quality of thought and analysis before putting fingers to keyboard matters even more. It's rather ironic, and telling, that Judge Chin did not refer to the considerably better (if not what I would have preferred) complaint filed by the publishers; if he had done so, and used that as the foundation for this matter, and (more importantly) the parties had agreed to do so, both the settlement and Judge Chin's opinion would have looked quite different.

• RIP Diana Wynne Jones. Joanne Rowling's success simply would not have been possible without Diana Wynne Jones's works (nor Jane Yolen's, but that's for another time indeed).
• The 1709 Blog offers an intriguing look at personal jurisdiction in copyright-infringement matters, discussing an opinion last week from the New York Court of Appeals (the highest court in that state... where its lowest general-jurisdiction court is called "Supreme"). The real problem with this opinion is that it is a "certified question" only, and answers only part of the question that the Second Circuit (which asked for guidance on New York state law) should have asked.

  As a quick review of civil procedure, a US court may only assert personal jurisdiction over a defendant who (a) can be found in that jurisdiction, or (b) has committed acts bringing it properly within that jurisdiction. In this instance, a company incorporated in Arizona and based in Oregon scanned a New York-based-publisher's book and put it on the 'net. Does that act bring it within the reach of New York courts? The New York Court of Appeals said "yes, because our long-arm statute allows reaching out to a wrongdoer who commits acts that cause injury in New York." There are two problems with this reasoning, though. First, it analogizes copyright actions to torts... and they are not: The tort theory of copyright assumes that copyright is a natural right, a view rejected two hundred years ago in favor of a statutory right/property theory. This matters because the considerations of what is "fair" regarding a property right are close to, but different from, those for a tort. Second, the Second Circuit's very certification of this question puts the cart before the horse... because copyright is an exclusively federal matter, the state's own personal jurisdiction law should be considered at most "advice." Then, too, the Second Circuit is not bound by the New York Court of Appeals' answer; it could find that in these circumstances hauling the Arizona/Oregon company into court in New York would "exceed traditional notions of fair play and substantial justice," International Shoe Co. v. Washington, 326 U.S. 310, 316, 315–19 (1945); but compare Keeton v. Hustler, 465 U.S. 770 (1984) (finding jurisdiction for libel, a tortious act, based on minimal distribution in New Hampshire) with Burnham v. Superior Court, 495 U.S. 604 (1990) (finding jurisdiction in a contested divorce by "tagging" the defendant with service when he arrived to pick up the children for visitation).

  In short, this one isn't over. The Second Circuit was probably hoping that the New York Court of Appeals would find that this matter exceeds the long-arm jurisdiction offered in New York state law to New York state courts, which would make rejecting jurisdiction much easier. Instead, though, it must go through the entire International Shoe/Shaffer/Keeton analysis — which is not easy, and is much more fact-bound than most first-year civil procedure texts make apparent.

Labels: arts, copyright, culture, internet, jurisprudence, politics, publishing

link to: 13:15 [GMT-6]

The Settlement (in essay form)
The Lawsuit (in essay form)

So, Judge Chin (properly, IMNSHO) rejected the Amended Settlement Agreement (ASA)...

Why Did He Reject It?

Unfortunately, Judge Chin's opinion is not a model of clarity on this issue. There is no conclusion that says "x, but in the alternative y", or "for the combination of the above reasons," or "x, and in addition I would also consider y but the record is not developed enough." On the other hand, we have to remember that Judge Chin's opinion has multiple audiences. It's not just for the lawyers, or even the parties, but for public consumption... and due to the conflicting interests and perceptions of those audiences, crystalline clarity on the actual rationale for rejection was just going to lead to outraged refusal to accept the opinion on the part of at least some of those distinct audiences.

That said, Professor Grimmelmann (see below) makes a persuasive case that the "real holding" is that the settlement improperly reaches too far, for a combination of procedural and substantive reasons — especially as the settlement concerns a release for Google's future conduct. Over time, I suspect that this will become the majority perception of the opinion. I think that shortsighted, because (as I mentioned yesterday and discuss in a bit more detail below) it neglects some critical procedural issues that make the opinion more robust than just a policy-based rejection would have been.

I also strongly suspect that the antitrust problems are going to play a much greater role in any future proceedings in this matter — whether through another round of negotiations resulted in a revised settlement, or through litigation — than most commentators have acknowledged. The landscape is substantially different now than it was at the time this settlement was proposed, let alone when the unacceptably defective complaint was filed. The EU's ongoing antitrust inquiry concerning Google; the Comcast-NBCU merger; the Borders bankruptcy and B&N proxy battle; continued consolidation in the publishing industry itself; the Harper-Collins attempt to treat e-book sales as mere "licenses"; the resale price maintenance agreement "agency model" for e-books; the explosion of e-reading devices and cell phones/netbooks able to read electronic texts; the development of Android by another part of Google, which powers many of those devices; the failure of three major attempts to unseat Google's search dominance; I could go on, but I won't. My point is that context matters in antitrust policy and enforcement, and I think these considerations will be even greater now that more of the deadwood in the DoJ's antitrust section has retired and/or transitioned to private practice. That Judge Chin mentioned antitrust at all is highly significant, as the initial settlement did not consider antitrust issues at all, and some recent rumblings from the Supreme Court in not-apparently-related matters indicate that maybe (only maybe, but that's enough) there are second thoughts on Leegin and the practical barriers to enforcement raised by the rule of reason.

Finally, Judge Chin's point that this probably requires a legislative solution is critical. It appears that — unlike the self-interested financiers who came up with the settlement's plan — he's actually read footnote 6 of Tasini, and figured out that Justice Ginsburg meant what she wrote.

The dissenting opinion suggests that a ruling for the Publishers today would maintain, even enhance, authors' "valuable copyright protection." We are not so certain. When the reader of an article in a periodical wishes to obtain other works by the article's author, the Databases enable that reader simply to print out the author's articles, without buying a "new anthology... or other collective work." In years past, books compiling stories by journalists such as Janet Flanner and Ernie Pyle might have sold less well had the individual articles been freely and permanently available on line. In the present, print collections of reviews, commentaries, and reportage may prove less popular because of the Databases. The Register of Copyrights reports that "freelance authors have experienced significant economic loss" due to a "digital revolution that has given publishers [new] opportunities to exploit authors' works."

More to the point, even if the dissent is correct that some authors, in the long run, are helped, not hurt, by Database reproductions, the fact remains that the Authors who brought the case now before us have asserted their rights under § 201(c). We may not invoke our conception of their interests to diminish those rights.

New York Times, Inc. v. Tasini, 533 U.S. 483, 497–98 n.6 (2001) (citations omitted). (Yes, quoting this from Google's own site against Google is itself a snarky comment on the proper kind of free e-books: Those that are public domain or released with the consent of the author.)

What Happens Next?

Because Judge Chin also rejected class certification in rejecting the class settlement under Fed. R. Civ. P. 23, his order is immediately appealable. Aggrieved parties may file an appeal within 30 calendar days — that is, on or before 21 April 2011. Technically, the potentially aggrieved parties are those who proposed the settlement only — that is, the Author's Guild, Google, and the other filing organizations. That does not include the US government (even though it was heard on the settlement, it's not "aggrieved" because it opposed), nor does it include the individual named plaintiffs... because the Authors Guild's lawyers never filed motions to intervene or to add them as plaintiffs, they would only have become "parties" if the settlement had been approved. Similarly, nonparties who supported the settlement have no standing to appeal, either, unless the Second Circuit grants them intervention — and after Muchnick, I think that unlikely at best.

An appeal has slightly (but only slightly) more than a snowball's chance in hell of being successful: The meat of Judge Chin's opinion is actually very early — the part where he objects that there are conflicts between the named representatives and the class, and among the named representatives. Findings of this nature are reviewed on appeal only for "abuse of discretion"... and the Second Circuit has not reversed a judge's rejection of a settlement after finding that conflicts of interest made representation inadequate in over two decades.³⁶ Everything after that is just strong guidance for the parties, and indicates how he would rule on those matters if he had to. The "purpose of copyright" issues; the opt-in/opt-out issue; the antitrust issues; adequacy of notice for orphan works; and so on all support Judge Chin's position. However, on appeal these would all be reviewed de novo, meaning that they're much more likely/possible to be reversed. This is where I disagree with Professor Grimmelmann (see below) and some other commentators, who focused on the "this exceeds the proper scope of Rule 23" issue raised by the release of future conduct, also in a short portion of the opinion. I agree that that's equally problematic... but, on appeal, that portion gets reviewed de novo — just like what happened in Muchnick, where the Supreme Court eventually reversed. So, for purposes of "figuring out what happens next," the issues relating to conflicts of the class representatives will prove the most important protection against reversal, even if for policy reasons the "exceeding the scope" issue is the most attractive one.

The status hearing on 25 April will tell us a lot more. It's not coincidental that that is more than 30 days after this ruling; that will allow Judge Chin to cancel it if someone does file a timely appeal. I anticipate that we're going back to the bargaining table, with the Authors Guild still trying to shut out all other authors' groups. I also suspect that whatever variety of "opt in" they discuss will be as narrow and difficult to avoid as possible; information that I have indicates that this was a dealbreaker for Google in the first place, although I strongly suspect that last year's ruling in Muchnick may force some rethinking.

What Do Others Think?

This is a non-exhaustive list of significant and perceptive comments thus far in the blawgosphere. I'm not going to cover the various blatherings of the putative parties to the settlement; neither am I going to cover the loons (and you know who you are; but just because you're not on the list below doesn't mean I think you're a loon). I'll freely admit that I don't agree with everything said below; keep in mind, though, that — unlike most of these commentators — I've actually litigated both copyright matters and class actions through the appellate stage, so don't just assume that I'm wrong if you don't agree with the above. In no particular order:

• Professor James Grimmelmann of the New York Law School comments extensively and usefully with real analysis, even if I think he missed some of the civil-procedure-type nuances
• Ray Dowd (Copyright Litigation Blog) offers his "benefits outweigh the problems" for one specific group perspective and ignores § 121
• Marvin Ammori (guest-posting at Balkinization) concentrates on three themes he perceives in Judge Chin's opinion
• If you're interested primarily in news/opinion pieces from the non-lawyer perspective, Professor Grimmelmann's Public Index offers this potpourri

36. Judge Chin is now himself on the Second Circuit, and should be referred to as Circuit Judge Chin, even when he's dealing with this matter in the District Court; collegiality indicates that the Second Circuit is unlikely to reverse one of its own, and the Supreme Court simply would not take this one so soon after Muchnick involving many of the same lawyers.

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

link to: 17:29 [GMT-6]

While the named plaintiffs and Google would argue that these authors can simply opt out, the comments underscore certain points. First, many authors of unclaimed works undoubtedly share similar concerns. Second, it is incongruous with the purpose of the copyright laws to place the onus on copyright owners to come forward to protect their rights when Google copied their works without first seeking their permission. Third, there are likely to be many authors -- including those whose works will not be scanned by Google until some years in the future -- who will simply not know to come forward.

Authors Guild v. Google, No. 05–8136 (SDNY 22 Mar 2011), Doc. 971, slip op. at 34–36 (citations and footnotes omitted). Judge Chin also spent considerably more time on the antitrust issues than the proponents of the settlement would have preferred, and noted that altering of substantive copyright rights is properly a matter for Congress, not the courts. Further, Judge Chin raised questions about the fairness and adequacy of representation — specifically, conflicts of interest — that the parties will need to address if they wish to go further, regardless of changes they make to the settlement documents themselves.

Judge Chin closes by rejecting the settlement as it stands; suggesting a mechanism to which he'd be more amenable; and setting a status hearing.

In the end, I conclude that the ASA is not fair, adequate, and reasonable. As the United States and other objectors have noted, many of the concerns raised in the objections would be ameliorated if the ASA were converted from an "opt-out" settlement to an "opt-in" settlement. I urge the parties to consider revising the ASA accordingly.

The motion for final approval of the ASA is denied, without prejudice to renewal in the event the parties negotiate a revised settlement agreement. The motion for an award of attorneys fees and costs is denied, without prejudice.

The Court will hold a status conference on April 25, 2011, at 4:30 p.m., in Courtroom 11A of the Daniel Patrick Moynihan Courthouse.

Id., slip op. at 45–46 (emphasis added; citations omitted).

More tomorrow...

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

link to: 12:03 [GMT-6]

In honor of the first day of spring, I offer a musical tribute to the season...

• Just a quick Borders bankruptcy update... The Economist has noticed — it's now officially An Event! Second, last week Judge Glenn signed a flurry of orders in the matter, uniformly rejecting the pro forma (and often substantively ridiculous) objections raised by various creditors, particularly the utilities and the landlords of properties being closed, to the debtor-in-possession plans. I estimate — conservatively — that those futile motions cost somewhere around a cool million, with about a third of that being the bankruptcy estate's own fees and expenses of responding to them... money that will not go to pay creditors (especially authors). That is, business as usual. Move along, netizens, nothing to see here.
• As a prelude to (and test of) ways to evade the NYT's ill-conceived forthcoming payhurdle, ponder the increasing use of digital resources to actually teach in the humanities, and ask yourself whether a few virtual trips to Regency England just might pour some cold, wet, Cotswolds rainwater on overheated Regency romances... and then whisper "William Morris."

  Meanwhile, the UK government continues to discriminate against actual visits by foreign performers. This has long been a problem in football, and in certain sectors of the arts; however, it raises one's eyebrows to read that customs officials "subjected [a cellist] to eight hours of questioning before [telling her] she was taking work away from UK musicians and sent home." Since when do customs officials give a rat's ass about how domestic classical musicians avoid starvation?

• Congratulations to this year's Tiptree Award winners and honor works (not all "books").
• Then there's the use of a breakup song by the Beatles as legal authority. The mind boggles; but then, the concept of "reasonable doubt" boggles in the first place...
• Finally, an almost-purely-editorial comment on the Eisler Sanction. If you're just returning from a well-earned vacation to Gleise 581g, you might not be aware that established "bestselling" author Barry Eisler turned down a $500k advance in favor of self-publishing his next book. As Scalzi's bingo card indicates, this incident is going to be blown even farther out of proportion than it already is... and ultimately validates a lot of the economic authority for copyright.

  First, note that Eisler isn't relying upon whatever he earns from that next book to pay the bills; almost nobody who is getting mid-six-figure-and-up advances is, because those people already have a significant track record and nest egg. That means that he can afford to wait for the absolutely uncertain amount of time that it will require for his anticipated better returns from self-publishing to come in. Again, this is the variable that most economic and financial analyses in the arts neglect: t.

  Second, he's doing so in relationship to an agency arrangement that — reading between the lines — just isn't working well (or at least well enough) for him. This might be perceived lack of value for the 15% agency commission; it might be nonfinancial issues with contracting; it might be miscommunication; it might be any number of things. The point, though, is that there is an existing agency relationship that led to the offer of the Big Advance; absent an existing agent (and, particularly, absent so prominent an existing agent), we wouldn't be hearing about this. At all.

  Third, one must remember that Eisler's work is — like Amanda Hocking's and Jon Konrath's — proven (not necessarily the same thing as "previously commercially published", as a couple of e-mails to me concerning my comments last week have misunderstood). That is, it is material with a clear marketplace niche; it is material with an existing brand; etc., etc., etc. The point here is that first-time-novelists by definition are not proven, and neither are their works (unless, perhaps, they're celebrities with really good ghostwriters).

  Fourth, and perhaps most important, is what Eisler and Konrath do not say in their online conversation: That commercial publishers are becoming increasingly difficult to deal with (and downright inept) on many contracting terms other than the financial ones. All I had to do was see who — both as "what imprint" and "which conglomerate" — made that rejected offer to know what some of those difficulties are. Of course, there's a slightly different, but significantly overlapping, set of those problems (increasingly converging through the antitrust/unfair competition issue of conscious parallelism (both PDFs)) with each media conglomerate — that's where having the right agent can be extraordinarily helpful. It can, of course, lead to authors leaving publishers despite satisfaction with most of the business relationship.

  In conclusion, the real reason to leave commercial publishing, for those whose Rawlsian original position allows them to do so without an unacceptable and clear adverse excursion, is less about the size of the advance than the size and nature of everything else that will be dragged into a commercial publishing transaction. And the less said about commercial publishing's insistance on using a "sale" model for author-publisher relationships while it tries to impose a "license" model on end-users of its product, the better! <SARCASM> No unfair competition issues like artificial creation of market-entry barriers involved here at all. Nope. Everyone in the entertainment industry (and in the commercial publishing niche of it) is completely trustworthy. </SARCASM>

Labels: arts, intellectual property, jurisprudence, mass media, miscellany, publishing

link to: 10:07 [GMT-6]

• The first vultures have come home to roost from the FCC's (improper, IMNSHO) approval of the Comcast-NBCU merger: AT&T proposes to buy T-Mobile. After the FCC approved the Comcast-NBCU transaction — which, by many measures,¹ was arguably more anticompetitive — it's going to have a much harder time justifying rejecting this deal. In turn, that's going to leave it to the courts and to Congress to police this mess; and leaving any mess to Congress to police just makes a bigger mess.
• SFWA President and all-around geek John Scalzi helps you play e-publishing bingo. Do put down that beverage before clicking through, though; I will not take any responsibility for your keyboard. (Of course, like most satire, it has more than a smidgen of truth to it...)
• Don't pick that beverage up quite yet. Toward the bottom of his Monday Miscellany, this cartilaginous ichthyoid's only feline colleague the IPKat muses on subscription prices for IP-based journals in the UK without (yet) complaining about the prices of e-books.
• Madisonian comments on genericide of trademarks... and that process bears some considerable thought. Authors should think about it when they're writing, obviously (and "realistic" dialog may never use "photocopied" again...). More critically, the foundation for "genericide" must, itself, come under some scrutiny, along with the "must defend" doctrine.
• Charlie Stross discusses deadly third-order effects of natural disasters, but doesn't get to the fourth-order effect yet: When electric power goes down, so does refrigeration; and when refrigeration goes down, the bacteria will play in the food and water supplies...

1. We'll leave aside, for the moment, the validity of those measures... almost all of which are based upon mercantilist commodities transactions shortly before and during the Second Thirty Years' War; are based upon egregiously flawed data; and did not involve effects on end-users. Sorry, econometricists, but drawing conclusions for tying arrangements from importation of iron ore in 1922 just may be invalid. In short, data sources matter.

Labels: culture, intellectual property, jurisprudence, politics, publishing, science

link to: 10:41 [GMT-6]

The first problem — a technical one, admittedly — concerns jurisdiction regarding foreign claimants (what we would call "plaintiffs") and publishers (remembering that in defamation law, the "publisher" is the person or entity who makes the allegedly defamatory statement... and yes, that is indeed where we get the term "publisher" as in "published my book"). Clause 7(2) of the draft bill limits the jurisdiction of UK courts to instances in which the court "is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement." Although this is a tremendous improvement over the current doctrine that has led to the UK being the forum of choice for English-language critical (but not necessarily truly defamatory!) statements, it does not go nearly far enough in one critical respect. By focusing solely upon "where" the statement was made (without, by the way, any consideration to how it was made — such as by importation of a foreign-published work by a UK-based retailer), it does not give adequate consideration to where the evidence that might otherwise support the statement is. Consider, for example, the underlying facts in Ehrenfeld v. Mahfouz, which concerned allegations of funding of terrorist and pro-terrorist activities. The evidence relied upon by Ehrenfeld was scattered across the globe, but appears to have been concentrated in Luxembourg, Switzerland, and Italy (or, at least, more concentrated there than anywhere other than the Arab world).

This leads, rather inexorably, to the principle problem with the bill — an unstated assumption. Clauses 2 through 4 largely replace the Minoan labyrinth of common-law "truth" defenses with a broader, more comprehensive combination of "fair comment and opinion, or it was in any event true" defenses. This does not go nearly far enough. In the remainder of tort law in the UK — and in defamation law in the US — the claimant (plaintiff) is responsible for proving that the alleged act was indeed committed with the requisite intent, usually negligence. Clause 3, however, leaves unaltered the main problem with the UK's libel law: At the moment that the claimant (plaintiff) identifies an allegedly defamatory statement in court, the court treats that statement as if it is false (and therefore wrongful) unless the defendant can actually prove it true (Clause 3(1)). The US practice is vastly superior: The identified statement is presumed true unless the plaintiff (claimant) proves it false. In layman's terms, this is the equivalent of "the tie goes to the runner (speaker)" in US practice being interpreted as "if it's a close play, the runner is out."

Finally, a word on some bad logic embedded in the executive summary. Paragraph 80 of the government's presentation is worth quoting at length (page 33):

In our discussions with interested parties, there were mixed views as to how far libel tourism is a real problem. Research which was conducted in the context of the consideration of this issue by the Ministry of Justice’s Libel Working Group did not show any significant number of actual cases involving foreign litigants in the High Court in 2009, and did not find any evidence of the type of libel tourism cases that are of most concern (those where both the claimant and defendant come from outside the EU). However, NGOs have indicated that a major problem arises from the threat of libel proceedings by wealthy foreigners and public figures which is used to stifle investigative journalism, regardless of whether actual cases are ultimately brought, and hence that the number of cases alone may not accurately reflect the extent of the problem. Certain of the other provisions which have been included in the draft Bill or on which we are consulting should assist in making this jurisidiction less attractive to defamation litigants (eg the substantial harm test). However, on balance we believe that there is also a need to take focused and proportionate action specifically to address this issue.

The obvious logic problem here is that defamation law acts more by chilling speech than by litigating over it... and not just as to NGOs (nongovernmental organizations, such as Amnesty International), but as to individual authors and even scientists and social scientists. I am personally aware of a double handful of books and academic research pieces that were not published at all this century — even in the US — because a legal review, signed by US-based counsel, convinced the publisher that statements made in those works would be protected/protectable under US defamation law and the First Amendment, but could result in protracted litigation under UK defamation law. That is, the actual incidence of cases in the High Court in the UK is certainly one factor in considering the importance of the libel tourism problem... but, contrary to the impression of paragraph 80 (which is not softened elsewhere), certainly does not indicate the upper limits of the problem (and certainly not when confined to a single-year snapshot that missed Mahfouz v. Ehrenfeld!) — only the lower bounds.

Overall, this is a decent start, but it requires some fundamental rethinking, too. If enacted as it stands, it would be better than nothing... but it still would not prevent the chilling effect from spilling over the Pond.

Labels: censorship, civil rights, internet, jurisprudence, publishing

link to: 11:17 [GMT-6]

• Borders bankruptcy update: The usual nonsense in these kinds of proceedings is accelerating. What a surprise. Yee ha.

  First up, there were lots of landlords and utilities filing various objections last week. Although from their perspective what they're trying to do is protect their own interests, from a system perspective what they're trying to do is cut in line — to evade the order otherwise required by the bankruptcy process. As usual, almost the only beneficiaries from this will be the lawyers, as they fritter away the bankruptcy estate's assets arguing over assertions that historically have less than a ten percent chance of success in a multistate retail-sector bankruptcy proceeding. The key point is that these arguments — and, if they succeed, bullying cutting in line — will ultimately hurt the creditors at the back of the line. That's right: The authors.

  Meanwhile, some publishers are starting to make reclamation claims on the stock held by Borders... which just validates the view of bookstores as consignees, not sellers. In particular, Source Interlink (PDF) and Thomas Nelson (PDF) are asking for their stock back. What this means for future shipments to the stores is still to be determined.

  Presuming, that is, that there are any. As I predicted back at the beginning, Borders Group is beginning the "don't kill the goose" dance with creditors by threatening to close up to 75 more stores — this time, all "superstores." Again, this is typical maneuvering from the Big Firm Bankruptcy Playbook... which should remind you all too much of the FBI all-purpose terrorist playbook from Die Hard, and we remember how well that turned out for Nakatomi, don't we?

• Meanwhile, the American Library Association has taken a public and semiofficial stance against HarperCollins' limitations on e-book lending. This particular brouhaha leads to two further questions that nobody appears to be asking... yet. First, what does this imply about the number of times a non-library purchaser can lend an e-book? Presuming, of course, that the "thou shalt not lend" EULAs in most e-books are enforceable in the first place (you did read the EULA, right?) — a dubious proposition at best — what mechanism will publishers use? Second, and more disturbing, does this imply a move toward a limited number of times that an e-book can be read in the first place, using parallel durability of physical copies as an excuse just as HarperCollins tried to this time? (And let's hope that H'wood doesn't get any bright ideas about putting use-counters on BluRay disks, which would be trivial...) In any event, that ALA's position statement is welcome, if somewhat overdue. I bet that they won't pay the fine, though.
• In the Great White North, the Glob and Male is concerned about two separate issues facing Canadian publishing. First, there's the periodic questioning of the protectionist "local owners only" crap that hasn't stopped one particular Canadian publishing group from becoming a 400kg gorilla in its market segment; category romance (small-r) readers know exactly whom I'm referring to. (Maybe it's just francophonia that's causing the problem, considering advice from the French government that publishers act like a cartel... against another cartel.) In the end, it's just more of the same old "all politics is local" bullshit offered in support of economic activities that can't compete, so they embrace protectionism and monopolization without recognizing the irony inherent in doing so.

  And pity the midlist author (as usual). Just because the midlist doesn't seem relevant to MBA/accountant perspectives doesn't mean that it's not the foundation of the business, though...

• Then, too, in a simultaneously disturbing and fascinating opinion, the Tenth Circuit Court of Appeals (which essentially covers that part of the West that remains "wild"... plus Utah) issued a horribly cramped and misguided opinion on whether Secret Service agents had qualified immunity for violating the First and Fourth Amendment rights of a man who expressed dismay at then-VP Cheney's statements on Iraq (PDF). Admittedly, there needs to be some immunity involved, and the protester did actually touch the Vice President. The opinion is, however, strangely devoid of context — such as recognition of George III's administration's records of suppressing dissent (in the Tenth Circuit in particular, no less) — which calls into question the validity, and even soundness, of the court's determination of what facts are relevant to determining qualified immunity in this particular circumstance.

  Not to mention the bizarre way that US jurisprudence requires suits to be against particular government officials "in their official capacity," instead of against "the gummint" — that's how we ended up with Gideon v. Wainwright, in which Gideon sued the warden by name and not "the system." It's also how we end up with the Bivens doctrine (Bivens v. Six Unknown Federal Narcotics Agents.

Enough for now. Back to the sickbed and to dealing with the remoras and their midterms and upcoming spring break and...

Labels: civil rights, jurisprudence, politics, publishing

link to: 18:33 [GMT-6]

• On behalf of the Westboro Baptist Church, Fred Phelps, to be questioned on the relationship between his religious beliefs and the personal and religious beliefs of the families of slain soldiers, sailors, and airmen;
• Scott Roeder and his victim's widow, Jeanne Tiller, to be questioned on religious justification for not civil disobedience against legal activities disapproved on sectarian grounds, but on violence and assassination;
• Warren Jeffs and a few of his cronies, to be questioned on the status of women and children in modern Christianity;
• Seán Patrick O'Malley and a few of his cohorts, to be questioned on screening and behavioral standards for church leaders and on washing one's hands of responsibility for one's subordinates' misconduct;
• Tim & Rebecca Wyland, Dale & Leilani Neumann, and Herbert & Catherine Schaible, to be questioned on health-care and child-care standards for parents and children;
• The ghost of Meir Kahane, to be questioned on the relationship among the arts, radical Zionism, and moderately effective high explosives... and on the price paid by bystanders

Rep. King, Islam is not the problem. Fundamentalism is the problem, regardless of religion; or, more broadly, the insertion of religion into politics... explicitly including your own use of the process of the House of Representatives in bad faith to advance your own personal agenda through bigotry.

Labels: civil rights, culture, politics

link to: 15:27 [GMT-6]

Of course, there are moral objections to the death penalty. That, however, can get mixed up with abortion rights; with the right of the state to declare war, or to use deadly force for enforcement of its laws; and it becomes an exercise in line-drawing. I am against the death penalty on moral grounds because I do not believe that it is the place of the State to exercise vengeance... and that is the only true distinction between a life-without-parole penalty and the death penalty. Neither is it the place of the State to step into the shoes of a victim or a victim's family; indeed, for every family member who achieves "closure" through the State-imposed death of the assailant, there are others for whom that either provides no closure or provides harm.

One can differ on the moral objections to the death penalty; it's very hard to differ on procedural objections. If the State expects to maintain the moral standing to kill individuals in its name as a penalty, the procedures leading up to that penalty had darned well better be perfect; there's no way to undue a lethal injection. The state of Illinois has a horrible record in that area, and at that it's better than most of the former Confederate states — and not just on racial grounds, either, although that's certainly a major problem. I cannot say it better than did a Supreme Court justice who initially supported the death penalty.

On February 23, 1994, at approximately 1:00 a.m., Bruce Edwin Callins will be executed by the State of Texas. Intravenous tubes attached to his arms will carry the instrument of death, a toxic fluid designed specifically for the purpose of killing human beings. The witnesses, standing a few feet away, will behold Callins, no longer a defendant, an appellant, or a petitioner, but a man, strapped to a gurney, and seconds away from extinction.

Within days, or perhaps hours, the memory of Callins will begin to fade. The wheels of justice will churn again, and somewhere, another jury or another judge will have the unenviable task of determining whether some human being is to live or die. We hope, of course, that the defendant whose life is at risk will be represented by competent counsel — someone who is inspired by the awareness that a less than vigorous defense truly could have fatal consequences for the defendant. We hope that the attorney will investigate all aspects of the case, follow all evidentiary and procedural rules, and appear before a judge who is still committed to the protection of defendants’ rights — even now, as the prospect of meaningful judicial oversight has diminished. In the same vein, we hope that the prosecution, in urging the penalty of death, will have exercised its discretion wisely, free from bias, prejudice, or political motive, and will be humbled, rather than emboldened, by the awesome authority conferred by the State.

But even if we can feel confident that these actors will fulfill their roles to the best of their human ability, our collective conscience will remain uneasy. Twenty years have passed since this Court declared that the death penalty must be imposed fairly, and with reasonable consistency, or not at all[;] and, despite the effort of the States and courts to devise legal formulas and procedural rules to meet this daunting challenge, the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake. This is not to say that the problems with the death penalty today are identical to those that were present 20 years ago. Rather, the problems that were pursued down one hole with procedural rules and verbal formulas have come to the surface somewhere else, just as virulent and pernicious as they were in their original form. Experience has taught us that the constitutional goal of eliminating arbitrariness and discrimination from the administration of death, can never be achieved without compromising an equally essential component of fundamental fairness — individualized sentencing.

It is tempting, when faced with conflicting constitutional commands, to sacrifice one for the other or to assume that an acceptable balance between them already has been struck. In the context of the death penalty, however, such jurisprudential maneuvers are wholly inappropriate. The death penalty must be imposed “fairly, and with reasonable consistency, or not at all.”

To be fair, a capital sentencing scheme must treat each person convicted of a capital offense with that “degree of respect due the uniqueness of the individual.” That means affording the sentencer the power and discretion to grant mercy in a particular case, and providing avenues for the consideration of any and all relevant mitigating evidence that would justify a sentence less than death. Reasonable consistency, on the other hand, requires that the death penalty be in?icted evenhandedly, in accordance with reason and objective standards, rather than by whim, caprice, or prejudice. Finally, because human error is inevitable, and because our criminal justice system is less than perfect, searching appellate review of death sentences and their underlying convictions is a prerequisite to a constitutional death penalty scheme.

On their face, these goals of individual fairness, reasonable consistency, and absence of error appear to be attainable: Courts are in the very business of erecting procedural devices from which fair, equitable, and reliable outcomes are presumed to flow. Yet, in the death penalty area, this Court, in my view, has engaged in a futile effort to balance these constitutional demands, and now is retreating not only from the Furman promise of consistency and rationality, but from the requirement of individualized sentencing as well. Having virtually conceded that both fairness and rationality cannot be achieved in the administration of the death penalty, the Court has chosen to deregulate the entire enterprise, replacing, it would seem, substantive constitutional requirements with mere esthetics, and abdicating its statutorily and constitutionally imposed duty to provide meaningful judicial oversight to the administration of death by the States.

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored — indeed, I have struggled — along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of proce- dural rules or substantive regulations ever can save the death penalty from its inherent constitutional de?ciencies. The basic question — does the system accurately and consistently determine which defendants “deserve” to die? — cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, relevant mitigating evidence to be disregarded, and vital judicial review to be blocked. The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.

* * *

The fact that we may not be capable of devising procedural or substantive rules to prevent the more subtle and often unconscious forms of racism from creeping into the system does not justify the wholesale abandonment of the Furman promise. To the contrary, where a morally irrelevant — indeed, a repugnant — consideration plays a major role in the determination of who shall live and who shall die, it suggests that the continued enforcement of the death penalty in light of its clear and admitted defects is deserving of a “sober second thought.”

* * *

[O]nly a bare majority of this Court could bring itself to state forthrightly that the execution of an actually innocent person violates the Eighth Amendment. This concession was made only in the course of erecting nearly insurmountable barriers to a defendant’s ability to get a hearing on a claim of actual innocence. Certainly there will be individuals who are actually innocent who will be unable to make a better showing than what was made by Herrera with out the benefit of an evidentiary hearing. The Court is unmoved by this dilemma, however; it prefers “finality” in death sentences to reliable determinations of a capital defendant’s guilt. Because I no longer can state with any confidence that this Court is able to reconcile the Eighth Amendment’s competing constitutional commands, or that the Federal Judiciary will provide meaningful oversight to the state courts as they exercise their authority to inflict the penalty of death, I believe that the death penalty, as currently administered, is unconstitutional.

Callins v. Collins, 510 U.S. 1141, 1143–59 (1994) (Blackmun, J., dissenting from denial of certiorari) (footnotes and citations omitted).

Not just as it was administered in 1994, Justice Blackmun; as it ever can be administered where:

• Jury duty is seen and treated as a burden instead of a privilege
• Judges are elected officials, and often have "tough on crime" platforms
• So are prosecutors
• Defense counsel are overworked, underpaid, inexperienced, and prohibited by law and policy from attacking the motivations of the prosecution (both in particular matters and in general)
• Investigative techniques focus on "the usual suspects" in virtually every capital-eligible matter... especially when the victim is somehow connected to either law enforcement or the local powers that be
• Race and class continue to play a role in the criminal justice system

I was a commanding officer for the better part of a decade, and have considerable personal experience with the struggles of those who have the discretion to determine how individual criminal matters get resolved. I did enough other investigations (both for the IG and... otherwise) to understand far too much about how process and preconception lead to prejudgment... the root word of prejudice. One demonstrably innocent person killed with malice aforethought by the State is too many; the less said about consistency, the better.

So thank you, Governor Quinn, for doing the right thing. Now get back to repairing other aspects of this state's government!

Labels: culture, jurisprudence, law practice, politics

link to: 12:04 [GMT-6]

• The American Association of University Presses has issued a report suggesting that the economic model of the university press depends on two false economic assumptions: That publishable "knowledge" is rare, and that the process for getting that rare knowledge to the peers and students of the producers is necessarily expensive and exclusive within a closed universe.
• The Grauniad points out one of the more-insane aspects of HarperCollins' recent attempts to protect its perceived library revenue stream: e-book durability is a feature, not a bug... and not just for the libraries and readers, but for the publishers, who no longer have to maintain stock of backlists and periodically inspect that stock for warehouse damage.
• Time — as usual — has a few good factual observations and completely loony analysis of why Borders went bankrupt and B&N hasn't (at least not yet) that ignores the single, salient, long-term difference: B&N is controlled by a family of booksellers, while Borders is controlled by MBA-trained discount-store back-room specialists who've never had a customer interaction in their lives...
• ... and are focused on replicating others' success. Lee Goldberg quotes latest-darling-of-the-self/vanity-publishing-apologists Amanda Hocking on this problem; she also discusses "replication" as an issue. Goldberg's blog also includes, from time to time, discussions of other successful self-publishing efforts, particularly of his own backlist and Joe Konrath. The key similarity is that Hocking, Goldberg, and Konrath all had extensive, proven, available and completely edited product lines before they began their electronic self-publishing efforts; this is not consistent with the bullshit spewed forth by S___ G____ (and similar gurus) proclaiming that new authors should avoid commercial publishing in the first place.
• Meanwhile, Scott Turow demonstrates a little bit more of his own tunnel vision by praising Macmillan's questionable-under-the-Sherman-Act resale price maintenance agreement "agency model" for e-books.

Where am I going with this? Antitrust — and the lack of enforcement thereof — as a primary cause of current distortions and dislocations for a critical aspect of the First Amendment. The problem is not the concept of commercial publishing; it is the implementation of commercial publishing, and in particular the highlight-reel-goals-only orientation of conglomerates. The problem isn't that the industry is "too big" (if anything, publishing as an industry segment is too small, but I won't bore you with the math... this time, anyway); it is that the individual actors are "too big to fail," and therefore desperately engage in inefficient overoptimistic delay externalities that push their failures into the future while making them more probable and more damaging when they do occur. Here are a few examples:

• Borders. Overexpansion on the Kmart model, followed by store management on the Kmart model, led to the Kmart result a decade later: A bankruptcy filing. Further, the within-store diversity at Borders has been getting steadily narrower since the mid-1990s, and faster than at B&N... meaning that when one in-store line's sales failed to meet expectations, Borders wasn't in a position to exploit alternatives by already stocking them.

  This is high-school-level ecology, guys.

• PGW. The focus on fast turnaround, dependent upon high-velocity cashflow to service relatively high debt payments supporting expansion, ran into the brick wall of 9/11 paralysis. Once again, there was no diversity in funding or cash flows, so the short-term interruption of cash flows resulted in refinancing of debt, several times, at ever-less-favorable terms. It then took only a small push in a neglected sector to topple the entire house of cards. The executives who developed the failed plan, however, did just fine.

  This is also high-school-level ecology, guys: The overspecialized predator and Malthus's Theorem.

• AOL's acquisition of Time-Warner. AOL had lots of "cash" in the form of inflated market valuation; Time-Warner was cashflow-deficient, thanks to a couple of decades of internal corporate raiding and increasing reliance on multimedia/print media forced synergies (as opposed to the health/management of either sector). How'd that work out, anyway? Well, the book publishing arm was sold to a French defense conglomerate's publishing subsidiary...

  This is basic college chemistry. Try looking up chemical kinetics.

• HarperCollins is an example waiting to happen, due largely to incompatible corporate structures and internal expectations. In the long run, the book-publishing segments of MordorNewscorp are going to suffer by comparison with the multimedia and periodical-publishing segments, because the comparisons are from incompatible systems. Thus far, it has been held together by SauronRupert Murdoch's personal force — but he's not going to live forever, even in a bad science-fiction novel that might get turned into a short-lived series on Fox (in a non-arms-length transaction that really, really screws all of the creative people involved).

  Basic cellular biology here, guys. That high-energy reaction that looks so attractive in the test tube doesn't seem so great when it has either an activation energy or side reactions that damage the rest of the cell... or inhibits another, necessary reaction by changing ion concentrations.

The burden is not on science to demonstrate how it applies to other system; the burden is on the other systems to demonstrate, in an internally consistent manner, how they can continue to violate scientific principles in the long run. And as velocity increases, the "long run" has a nearer and nearer horizon; just look at the mix of securities-market actors now versus 1948 for an example...

The best argument against "too big to fail" being imported to First Amendment activities, though, is in a relatively obscure lecture-turned-into-an-article on thermodynamics and the "cost" of Maxwell's Daemon by Leo Szilard. See Leo Szilard, On the Decrease of Entropy in a Thermodynamic System by the Intervention of Intelligent Beings, 53 Zeitschrift für Physik 840 (1929), translated and reprinted in 9 Behavioral Sci. 301 (1964). Szilard demonstrates that, assuming that the Second Law of Thermodynamics is valid (and we have yet to encounter, describe, or replicate an internally consistent system in the physical or biological world that violates the current understanding of it), Maxwell's Daemon has a nonzero energy/entropy cost for his intervention and cherry-picking of the high-energy particles. That implication, the very act of concentrating on those bestsellers has a negative long-term effect on the system... and implies that the Daemon will later have fewer high-energy particles (bestsellers) to cherry-pick, requiring a greater investment of energy by the Daemon; thus, we're into something that should look a lot more familiar — Carnot-cycle engines, like the internal combustion engine under the hood of your car (or, for that matter, the external-combustion Diesel engine in a bus). The key point is that to keep these engines running, they require constant inputs of fuel; constant extraction of considerable waste products and heat; and lots and lots of maintenance and lubrication. Further, they really aren't all that efficient, as plugging a few numbers in on that web page will demonstrate. But they work, and they're the foundation for so much of the rest of civilization that we have to forgive a little bit of inefficiency in one place to have efficiency elsewhere.

Thus, my Prescription for Publishing™ is increased diversity in all respects: Increased diversity of forms (if not necessarily formats!), of distribution systems, of selection systems, of actual works being published — for the very simple reason that we can't know in advance what will be a bestseller; just compare the ultimate profitability of John Kennedy O'Toole's most-prominent book to roughly contemporaneous (in publishing terms, anyway) overhyped bombs like Thomas Wolfe's 1998 stinkeroo. To use another sport analogy, every highlight-reel goal by [insert name of striker here] is supported by both ten other players on his own team and at least one mistake-in-20-20-hindsight by the opposition... and building an entire team out of strikers with proven highlight-reel quality doesn't work. Neither does it work for publishing, but that's what the conglomerates expect with idiocy like HarperCollins' attempts to overcapture library use of e-books.

Labels: culture, mass media, publishing, science

link to: 11:54 [GMT-6]

• There's one fascinating grant of certiorari this morning by the Supreme Court (to IP nerds and to civil procedure geeks, anyway): Golan v. Holder. This case concerns one of the consequences of the US dropping its protectionist stance as a historical copyright pirate and joining the Berne Convention: The "restoration" of copyright in certain foreign works under the Uruguay Round, which had fallen into the public domain solely due to failure to comply with US-unique formalities. The plaintiff is a musical director and conductor who wants to continue to select, among others, works by Stravinsky and Bartok... without payment of performance fees to the respective copyright holders.

  The two questions on which the Supreme Court granted certiorari were:

  (1) Does the Progress Clause of the United States Constitution, Article I, § 8, cl. 8, prohibit Congress from taking works out of the public domain?

  (2) Does Section 514 of the Uruguay Round Agreements Act violate the First Amendment of the United States Constitution?

  The Tenth Circuit Court of Appeals — which is not exactly a hotbed of copyright litigation, and issued an opinion (PDF) that is a paradigm for why copyright matters need to be centralized in the Federal Circuit, just like patent matters already are — held against the plaintiffs (and for the restored copyrights/copyright holders). However, this raises a fascinating civil procedure question that appears to have been avoided by everyone at every opportunity:

  (3) not granted, not before the Supreme Court What is the statute of limitations for filing an action asserting that legislation that implements an international treaty requirement violates a superior constitutional right?

  The legislation in question was passed, and signed into law, in 1994; the plaintiffs filed suit in 2001. The ordinary statute of limitations for copyright actions is three years, but one of the quirks of the 1994 legislation allowed later restorations (see 17 U.S.C. § 104A(h)(2), setting the effective date as either 01 Jan 1996 or a later notice date). The record is quite unclear on exactly when the particular pieces in question were restored, so... I sense an exam question in there!

  In any event, this matter will be heard in the term beginning on 03 October 2011, with a decision by the end of June 2012; Justice Kagan recused herself, leading to the possibility of a 4–4 split (which would affirm the Tenth Circuit's decision without establishing national precedent... a meaningless distinction in this particular matter, and yet further justification for consolidating copyright matters in the Federal Circuit). My initial prediction is that the Supreme Court is going to uphold the restoration using reasoning quite different from that of the Tenth Circuit, and possibly considerably narrower than that. Economically, it comes down to one very strange philosophical question: Does "Progress" mean the right to access, and thereby benefit from; or does it mean the right to access without paying compensation, and thereby benefit from, due solely to a failure of technicalities that would not apply to any other form of property?

• No real further news in the Borders bankruptcy; at the moment, it's still all preliminary maneuvering and routine orders and filing. There should be a little bit more movement next week, and a lot more the week following. I'm seeing the beginning of hints that another round of store closings is inevitable, with only the size of the round to be determined; however, since I'm looking for that, too, I may be overreading some of these preliminary filings.

  And meanwhile, the Delaware Supreme Court took about 24 hours to affirm Chancery's rejection of the Ron-Burkle-led proxy fight for control of Barnes & Noble, basically saying "what he said" (PDF). Same time next year...

• The Department of Source Irony provides us with GQ commenting on the foolishness that is the H'wood decision process — and doing so intelligently, if one step too far removed. It is, of course, a very complex situation; but the enabling problem with H'wood today, as opposed to purported golden ages in the past (pick your favorite, and I'll point out all the dreck it was spewing forth even then), is that decisionmakers are no longer filmmakers. It's very much the same problem as in publishing and in recorded music: The MBAs have convinced everyone that the products are just widgets, and all those things that they learn in MBA school on how to make identical things stand out in the marketplace are the only rational way to structure things. And, of course, that means that all of the high-paid decisionmakers have to be MBAs, who will then proceed to force anyone who doesn't do MBA-speak out of management. (I suffered through the same thing in the post-Vietnam military.) In short, the wrong people are making the decisions on what to make... just like Detroit automakers in the 1980s and 1990s.

Labels: arts, copyright, culture, intellectual property, jurisprudence, mass media, publishing

link to: 11:09 [GMT-6]

• Compare and contrast:
  • Now Random House (Bertelsmann) is joining the Macmillan (von Holtzbrinck) agency model resale price maintenance agreement rush, while
  • EU antitrust authorities begin a skeptical look at e-book pricing with raids on e-book firms

  Yeah, this is going to end well, with a unified worldwide pricing system (and easy-to-understand, full royalty statements afterward!) for a nonterritorial good. Keep in mind that Leegin did not say that resale price maintenance agreements are now legal, and inherently not antitrust violations; it merely put impossible-in-practice-to-overcome procedural barriers in front of the claims, relegating them to the so-called "Rule of Reason" (which should be better known as the "Rule of Expensive Law Firms and Duelling Experts") instead of treating them as per se antitrust violations. That is, it only changed the way that one must attack a resale price maintenance agreement as unlawful under US antitrust law...

  The irony that Macmillan (with the RPMA) and Random House (with the recent restrictions on e-book lending by libraries imposed unilaterally by Random House) are acting like they're licensors, while the underlying law of the Copyright Act of 1976 makes them licensees but they continue to negotiate author contracts as if the author contracts are irrevocable sales, seems curiously unacknowledged. "Curiously" as in "curiouser and curiouser," not "unexpected"!

• With an 8–1 vote, the Supreme Court correctly confirmed that Fred Phelps has the right to be a bigoted asshole with no grasp of reality near military funerals. In Snyder v. Phelps, No. 09–751 (02 Mar 2011) (PDF), the Supreme Court held that based on the law as it stood at the time of the funeral (which has since changed, but was not before the Court — see slip op. at 10–11 — and, in any event, did not reach the specific facts in this matter), the Westboro Baptist Church had the right to picket the funeral of a soldier who died in a combat zone:

  Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder’s funeral, but did not itself disrupt that funeral, and Westboro’s choice to conduct its picketing at that time and place did not alter the nature of its speech.

  Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.

  Slip op. at 14–15.

     In one sense sadly, this particular case against WBC was undermined by some less-than-optimal lawyering, as implied by footnote 1 in the opinion (slip op. at 3). I think the Court was right, both prudentially and jurisprudentially, in avoiding the later 'net postings entirely... on the ground that Snyder's lawyers did not properly present that subissue to the Court in the briefs and petition for certiorari. That is a morass that could well have changed the result in this case, but not necessarily in a good way: It would no doubt have only confused the result. On these facts and this law, the Court reached the right decision... because just like the Illinois Nazis in The Blues Brothers, Phelps and his minions have the right to present their message of hatred and bigotry in public. The alternative is much, much worse — just ask the ghost of Aleksandr Solzhenitsyn (and that choice of source is, itself, with malice aforethought).

• More questionable activity in the entertainment world. In a story nearly as shocking as finding gambling in Rick's casino, Sports Illustrated and CBS have found significant arrest records among "scholarship athletes" in bigtime NCAA football programs. Ho hum. It's nowhere near as interesting as Charlie Sheen's antics. It's also slightly unfair, as it focuses on arrest records and not convictions (given the racial component involved, that's a substantial methodological flaw in the piece). The Duke lacrosse incident should have convinced these journalists not to rely upon mere arrests and accusations. That said, while one cannot rely upon the findings to determine probabilities or a particular player's characteristics, one can justifiably point to smoke and infer that there's fire in there. What a surprise.

Labels: culture, jurisprudence, politics, publishing, sport