link to: 10:57 [GMT-6]

• An interesting profile of Paul Krugman and his "liberal" writings has a fascinating lacuna in it, similar to the one at the heart of virtually all contemporary (and economic) discourse: It uses the word "liberal" without ever adopting/maintaining a consistent definition, let alone stating it. That's bad thinking, bad writing, and bad rhetoric — and perhaps is more than a little bit at the heart of the problem...
• ...with explaining (without too much excuse or excoriation) this nation's history of unconscious racism, which is also echoed in the preceding piece with the comment on the background of the economists at that Oval Office meeting...
• ...or what characterizes "poverty" in the undeveloped world, where "boredom" appears to be more of an enemy than "hunger" (if one follows that article to its ultimate conclusion). <SARCASM> What? You mean even uneducated dark-skinned poor people have brains that demand to be used? How... uncouth! </SARCASM>
• Speaking of "uncouth," sometimes labor activism seems futile. On the one hand, we've got the NFL dispute, in which a group of millionaire "laborers" playing an overgrown boys' game is locked in mortal venal combat with billionaire owners. It's hard to have a lot of sympathy for either side; I think they're too busy trying to see exactly how many wrongs it takes to make a right. Then, in other parts of the arts, one has unions that have been completely coopted by management and won't even challenge "Hollywood accounting." Meanwhile, Tea Party activists — most of whom wouldn't have an education or customer base for their entrepreneurial pardises but for the past and present efforts of unions in the US — try to destroy unions.

  Implicit comparisons to the relationship among Google, publishers, and the Authors Guild in the GBS litigation are intentional.

• Inappropriate consolidation in publishing isn't limited to Big Six publishers gobbling up competitors. Slightly below the DoJ/FTC's radar, one finds equally disturbing consolidation, such as F+W's plan to purchase a crime imprint. Although F+W is primarily known for its periodicals and nontrade imprints, this isn't exactly inconsistent with its (mis)conduct over that past fifteen years.

Labels: arts, culture, mass media, politics, publishing

link to: 10:17 [GMT-6]

• GBS Update: Nobody filed a timely notice of appeal from Judge Chin's 22 March 2011 ruling, so things will proceed in the District Court. The hearing that was set for yesterday has been delayed until 01 June 2011 (PDF), giving the [string of insults concerning egos and arrogance] organizations involved more time to come up with another flawed "proposed settlement" that concentrates more on administrative convenience and ensuring that the authors don't get individualized control and/or income than anything else.

  Meanwhile, Professor Samuelson demonstrates that she actually read the ruling and gives it some credence with a draft paper on what a legislative solution to the problems raised in the litigation might look like (PDF). I don't agree with everything in the paper, as it still fails to grasp that the default position of the various parties — that there is a valid means of avoiding direct contact with each author/copyright holder — cannot be mechanistically evaded without a fundamental alteration of copyright law. That said, it's a helluva lot closer to business-sense workability than anything else I've seen seriously proposed... which means, of course, that it has less than zero chance of getting through Congress.

• Borders Bankruptcy Update: Borders is now trying to put further pressure on its landlords (and utilities, suppliers, etc.) by keeping open the option to close twenty-odd more stores. Ordinarily, it would be required to accept or reject leases in the very near future, and that would then become part of the reorganization plan. Instead, Borders wants to delay a final decision on the leases until approval of a reorganization plan.

  In one sense, this is a chicken-and-egg situation in which the Bankruptcy Code (in the interest of creating a uniform law) tries to say "egg comes first unless the judge says otherwise." That is, it is not logically reasonable to require such a strongly plan-shaping measure so early in the process. On the other hand, it also allows the debtor to discriminate against certain landlords, which is — in effect — like allowing the debtor to determine which creditors to pay at a higher rate. In short, this is as much about juggling chainsaws as it is about bankruptcy law and practice. Notice, too, that the primary people who could be affected by this decision — authors and store patrons — have exactly zero say in any of this. Now that's respect for World Intellectual Property Day!

• Peter King tries to make sense of the ruling ending the NFL lockout yesterday and can't. He's a bright guy, but not a civil procedure geek (for which he, and his audience of football fans, are probably quite thankful).

  Basically, what happens next is this: First the District Court judge who just issued the ruling will rule whether to stay it pending appeal; then the Eighth Circuit Court of Appeals will rule whether to stay it pending appeal; then the appeal of this ruling will proceed in front of the Eighth Circuit and — unless the Eighth Circuit stays both the ruling below and all other proceedings, which would be highly unusual — the rest of the antitrust matter will continue in front of the District Court. In the ordinary course of things the various stay rulings will be issued within the next week, and almost certainly less than that.

  So, what is it going to take for the league to win and get the lockout reinstated? Well, it is Easter/Passover season, so perhaps a miracle will be forthcoming... but I wouldn't count on it. Many employment lawyers point to the Eighth Circuit as being pro-employer, and in that sense they're right; that, however, neglects the procedural context. In this instance, the standard of review makes it extraordinarily difficult to reverse the District Court. On one level, a judge's decision on whether to grant a preliminary injunction is always reviewed for "abuse of discretion." The most common "abuse of discretion" is using the wrong law; thus, if the Eighth Circuit determines that Judge Nelson's legal analysis was blatantly wrong, the owners win. The problem is that her legal analysis is not blatantly wrong; those areas where there's room to disagree are precisely those in which the other barrier to reversal comes into play: The balance of equities and irreparable harms, and her findings of fact. In both of those areas, there's an even higher standard of review: "Clear and convincing error," which is roughly the civil litigation equivalent of "beyond a reasonable doubt." Further, there's another procedural reason for a court to refuse to reverse this particular injunction: The injunction does not concern an ultimate remedy in the litigation, but merely preserves a previously bargained-for result pending outcome of the entire case (and American Needle, holding that the NFL is subject to antitrust scrutiny for its licensing arrangements, is a heavy hand on the scale there... and requires the Eighth Circuit to reconsider some of its prior pro-employer precedents).

  Thus, if the owners don't get a stay allowing them to continue the lockout during appeal, I don't see them winning this appeal. Procedurally, there's too much of a mess. Score a touchdown for the players' lawyers.

Labels: copyright, intellectual property, internet, law practice, mass media, politics, publishing, sport

link to: 13:30 [GMT-6]

On to the suspicious link sausages of dubious origin indeed!

• Whitewashing isn't restricted just to YA book covers: It's pervasive in H'wood. Of course, Mr Morris misses the common point of reference: It's not the whiteness of the audience, or the whiteness of the creators; it's the upper-middle-class whiteness (and maleness, and Protestantness) of the 1970s/1980s MBAs who are in charge of the corporate media entities involved... and/or the securities analysts who have such overt interest on those corporate media entities. Even the women who are involved in that chain tend to be either relegated to "womanly" niches or bigger dickheads than most men from having to act like they had penises to get into positions with power and authority in a male-dominated world in the first place.

  <SARCASM> Whether the antiintellectualism fostered by American "business education" has anything to do with the constant dumbing-down of entertainment and creative products is left as an exercise for the student. </SARCASM> It certainly appears to have blinded Mr Morris to the source of the point he was trying to make.

• The talented and lovely Sarah Weinman points out that we've had the "e-books will cannibalize the publishing industry to death" debate before. Santayana was an optimist: Before one can understand history (and thereby avoid repeating it), one must not only know some history — one must care about it.
• Ho hum. In Borders bankruptcy non-news — as I predicted — Judge Glenn approved an outrageous executive bonus plan... as a reduction from one that was exhorbitant.
• Meanwhile, another publishing bankruptcy looms: Dorchester. The unofficial committee of unsecured creditors — which almost completely ignores authors interests, as the stated value of their claims is so low (thanks in part to dubious accounting and thanks in greater part to Dorchester's managerial incompetence) — said:

  [T]he Unofficial Committee made a decision to disband and has advised Dorchester of this decision. The Unofficial Committee has taken this step because it has determined that Dorchester will be unable to propose any meaningful repayment plan to unsecured creditors in the foreseeable future. Thus, the forbearance period that commenced in August 2010 is no longer in effect and creditors of Dorchester are free to take any action or inaction they determine to be appropriate.

  Translating from Lawyer to English, that means:

  Congratulations, authors: In technical terms, you're f*cked. Your claims are so piddly and indistinct that you don't have a realistic voice in the impending dissolution — and you won't have any say in what happens to whatever rights of yours Dorchester either continues to hold or is exploiting without permission, either. Have a nice day.

  Just another day in paradise, eh?

• On a brighter note, congratulations to the Hugo and Campbell nominees, to the BSFA winners, and to the Philip K. Dick Award winner.

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

link to: 10:49 [GMT-6]

• Just a quick Borders bankruptcy update: In a move that would surprise absolutely nobody who has ever looked at the records of even a single retail-sector Chapter 11 case before, Borders is seeking to enhance its line of credit by another 10% ($50 million). Whether this should be routine is beside the point; it seems virtually mandatory for a retail-sector debtor that actually reorganizes successfully to increase its debtor-in-possession credit line by 15-20% in two stages starting just after the first contested court hearing. So, just like everything else filed thus far in the last week or so in the Borders matter, there's nothing to see here — move along, folks.
• The literary community is internally divisive and cannibalistic? Say it isn't so! Well, say it isn't so if you routinely lie, anyway. (No, "fiction" is not "respectable lying".) Ultimately, the problem arises not from university scholars — many of whom are much more open-minded than their reputation — but with what Orwell called the "guardians of the middlebrow" who determine what gets taught to ten- to fifteen-year-olds. As a group, these "guardians" tend to be solidly lower-middle to middle-middle class from economically mobile (direction irrelevant) families... with no history of creativity or participation in the arts, and with an outrageously high proportion of theocrats, regardless of the governing cultural norm.

  Except, perhaps when it comes to "nonfiction" with variable truthiness... a topic all too ironically appropriate given the rumor-slash-announcement that one of Oprah's last shows will feature James Frey.

• Amazon's cloud services crashed yesterday, taking down PW among many others (at this writing, they're still down). Schade, or at least "antitrust," right? Yeah, the DoJ is going to look at the harm to consumers from this one Real Soon Now and Real Seriously. And, ironically enough, this has a disturbing resonance with a Frontline story on airline MROs that aired recently (and that any military aircraft maintenance officer could have predicted): Penny wise, pound foolish.
• Dana Girard offers some thoughts on the difference between e-book conversion and e-book formatting that don't go nearly far enough, although they certainly point toward some useful considerations. Leaving aside the unstated premises (to pick one, that the previously published paper version was both (a) itself competently edited and (b) not harmed by reduction-to-paper considerations like a need to cut a signature to hit an internal price target), she focuses so narrowly on considerations restricted to purely linear narrative works that she masks other, at least equally important issues... such as the useability of any footnotes and/or bibliographies and/or references and/or indices, the substantive clarity of graphics at greyscale e-book reader resolution, and so on. It's nonetheless something to think about for authors when putting their own works on the e-market, either by themselves or with assistance.
• Deadline Hollywood lists its opinion of overpaid H'wood executives. Leaving aside that the list doesn't go nearly wide or deep enough, note the common factors — conglomerates, late-comers to the industry segment, and nepotism.
• Defy Yog's Law at your peril. It's not quite as imperative as the Second Law of Thermodynamics... but it's close.

Labels: arts, culture, internet, mass media, politics, publishing

link to: 14:46 [GMT-6]

• Fans of Bratz dolls can breathe easier — until the (next) inevitable appeal, that is. In what the LATimes calls a "stunning decision" (probably because the paper has previously demonstrated not just no, but negative, knowledge of intellectual property and unfair competition law), an Orange County jury found for MGA and against Mattel on virtually every important aspect of the Bratz v. Barbie dispute. Frankly, this is an entirely unsurprising result after the most recent Ninth Circuit decision in this matter.

  This particular case has several frustrating aspects. Leaving aside the ethical/moral dimension of the particular objectifying toys at issue — a problem on which there really can't be much, if any, agreement — this case represented an opportunity for courts to definitively rule on the propriety of "spare time creations belong to the employer" employment agreements/contracts/employee handbooks, as the Ninth Circuit found too many loopholes in Mattel's version; on whether the scenes à faire doctrine from the 1909 Act survives as an independent consideration for copyrightability under the 1976 Act, or whether (as I believe) is it properly considered as one of the § 107 fair-use factors and not an independent determination; and whether the appalling amount of money represented in both the toy lines themselves and the legal fees could, and should, have been allocated better to the benefit of the various shareholders in the respective corporations. As Mattel has already been told once when it overreached to "protect" Barbie's anatomically incorrect image, "The parties are advised to chill." Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 908 (9th Cir. 2002) (holding that the song "Barbie Girl" does not infringe Mattel's rights).

  Although explaining why is well beyond the scope of this blawg, this matter also has some interesting implications for Happy Days (may that misbegotten load of dreck be quickly and permanently forgotten). Let's just say that CBS sympathizes with Mattel's side in this particular dispute and leave it at that, ok?

• Instead of female dolls, we could just worry about effeminate memorabilia. Yee ha. I wonder if the chimpanzee is a named party? On second thought, I really don't want to know.
• Transitioning slightly to another aspect of fair use, one finds another bit of remarkably ignorant side commentary in the LA Times concerning the Weird Al/Lady Gaga brouhaha (or, rather, the dispute between Weird Al and Lady Gaga's overcontrolling, overambitious manager, as it turns out). The LAT's mistake is this statement:

  Yankovic didn't actually need Gaga's permission, but he extends the mutually beneficial proposition as a courtesy — his parodies have always fallen under "fair use" in matters of copyright law.

  (typography corrected) No, no, and yet again no. On the one hand, Weird Al's work almost always qualifies as fair use. However, "parody" has been a relevant consideration only since 1994, when the Supreme Court said that a parody could constitute fair use (not necessarily is fair use), and there are several Weird Al songs that — however much I love them — fall outside the bizarro definition of "parody" that holds in US copyright law, so they don't even have that much protection, although they should. And, amusingly enough, one of them just popped up at random on the playlist...

  Of course, Lady Gaga has other legal problems right now, so jettisoning this one makes good strategic sense, too. And how often can one say that about anything in the entertainment industry?

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

link to: 11:48 [GMT-6]

• I don't want to see Donald Trump's tax return. I want to see a birth certificate for his hair... and the full accounting statements (not just the summaries) for each of the three corporations he's managed into bankruptcy for both the time of bankruptcy and one year before that.
• Here's a thought on drug policy: Treat the cause, not the symptom... at least up until the point of "consequential criminal behavior" like DUIs. By analogy, compare the cost of all the vaccinations against whooping cough (pertussis) against the cost of treating one year's worth of pertussis cases, not to mention the mortality...
• Patronage may have gotten us Michelangelo, but we have no idea what it directly or indirectly suppressed. That's why there needs to be at least some government support for the arts and some market (as opposed to patron) support for the arts. In short, we need all three for diversity, or the next Guernica may remain forever locked in an artist's head.
• Some interesting thoughts on further extensions of copyright in sound recordings in Europe from a Pirate Party MEP... who actually sounds like an MEP and not a pirate (although the article does not make clear whether he had a pegleg and/or a parrot).
• Some interesting thoughts on passover propriety not based in scripture. Meanwhile, the first-born sons of Egypt continue to struggle against the legacy of another insane Egyptian tyrant.

Labels: arts, culture, politics

link to: 15:27 [GMT-6]

• Once dystopia week at Tor.com is actually over, I'll have some comments aside from my sniff of disdain. Mr de Vries's comments today, asserting that dystopias and utopias are entirely black/white propositions, merely reinforce that disdain. But then, this isn't a topic in which I'm an avid reader; it's a topic upon which I'm a scholar.

  Nonetheless, it's good to see at least some attention being paid to the area. Now if only any of the columnists knew what an eiron was...

• Judge Glenn orally rejected the initial attempt to get the executives of bankrupt Borders Group their exhorbitant bonuses. He directed renegotiation with the U.S. Trustee, after which the bonuses will be merely outrageous. Notably, he did not appear to give any credit to the argument being raised by some creditors that it is too early to pay bonuses because we don't know what will be recovered. Legally, I think that's the right call; in fact, timing of bonus payments in comparison to the proceeding is not supposed to be relevant in bankruptcy. Ethically, it's another story entirely, particularly when these bonus payments are being made to retain management so incompetent — and so prone to turnover — that a relatively healthy company got run into the ground through entirely foreseeable circumstances. However, Judge Glenn doesn't have the authority to reject bonus payments on principle on those grounds.
• In a remarkable bit of irony, earlier this week saw the fiftieth anniversary of man in space... and the 150th anniversary of shots fired in the Second War of American Secession, aka the American Civil War, aka the War Between the States. Professor Zasloff makes another comment on the irony of the South that I can't beat — especially after having been stationed in an unreconstructed portion thereof. Twice.

• Last, and far from least, it appears that President Obama has no regrets over calling the Heffalumps stupid. He shouldn't, particularly once one remembers that (a) that doesn't necessarily mean that the Jackasses are smart — just not quite so stupid on this particular issue, and (b) "conservative," "GOP," "activist member of GOP," and "Heffalump leadership" are not coextensive sets; in fact, there's disturbingly little overlap, very much like the disturbingly small overlap among "landowning voters," "Tory," "Tory MP," and "Tory leadership" in the 1750s through 1790s.

Back to the salt mines; I need to peer review an article on the GBS...

Labels: arts, culture, jurisprudence, publishing

link to: 11:45 [GMT-6]

• In what might be a truly ironic problem, I can't reach the American Library Association site to link to the announced list of most-challenged books of 2010... and it looks from the outside like it might be a DDoS attack (censorship of complaints about censorship), or conversely a simple system crash due to overloading (popularity of complaints about censorship). That said, GalleyCat (a usually accurate source) says that the list looks like this.
• An item in the B&N Review, reprinted at Salon, asks "Has Google turned evil?" I'm afraid that the esteemed philosopher A.C. Grayling largely misses the point here, because he has read neither enough fiction nor enough law (admittedly, it's often difficult to tell the difference). If he had read enough fiction, he would understand that villains do not think of themselves as "evil" outside — perhaps, and only perhaps — of James Bond novels and screenplays. If he had read enough law, he would understand that the left hand, by the nature of business organization control, really doesn't know what the right hand is doing with that Molotov cocktail; nor does it care; nor is it obligated to care, particularly in the face of potential profit. In short, Don Draper would be proud... and given the business model upon which Google was founded, that's rather important.

  I'm not advocating nationalization of Google or anything like that; I'm only advocating intelligent restraints on power, just as I advocate them on government. The evil is not "big government": it is unchecked accretions of power. At present, the social balance in the US places plenty of checks on government power and not nearly enough on private power... in a manner disturbingly reminiscent of the era of the great trade monopolies, with their private fleets and armies (and atrocities and centuries-later remnants of colonialism, bigotry, and genocide). I grew up in what was essentially a "company town" suburb of Seattle, where if one criticized Boeing or Paccar one could expect to be hauled in front of the Neighborhood Unamerican Activities Committee faster than one could draw one's next breath; in many ways, it's worse than government-sponsored totalitarianism, and it's yet worse in the "true" company towns found in Europe.

• A bit of amusement from the periodical publishing world: Thanks to the imperatives of deadlines, the April 2011 Conde Nast Traveller thinks Libya is a top vacation destination. One would think — wrongly, as it turns out — that modern communications and in-house typesetting would considerably shorten the production cycle from the 1950s when lead times became engraved in stone... an irony itself of another kind, but still...
• Not another lawsuit led by Jonathan Tasini! Please, no! Oh, well — at least this time it's a different company in his sights: AOL under the "content leadership" of Arianna Huffington. Wait a minute — one of the defendants in Tasini v. New York Times Co. was Time-Warner, later aquired by AOL... sort of.
• The inestimable Teresa Nielsen Hayden reveals all about publishing categories, with one exception: She neglects to point out that those short descriptions are summaries by someone in the S&M department who has not read the book — not even the author's elevator pitch.
• Tor.com is hosting "Dystopia Week"... and inadvertently demonstrating that none of its participants (thus far) have read enough utopian/dystopian works, let alone those posited just as "fiction." Contrary to popular belief — or at least those explicated there thus far — "dystopian fiction" did not begin in the 1920s and 1930s with Zamiatin, Huxley, and Orwell. Formally, it begins not later than H.G. Wells; functionally, it extends as far back as Swift, or Voltaire, or More, or even Plato. Just because many authors weren't quite as overt about not wanting to live on the islands of their creation as was Plato doesn't mean that they are not "dystopian" in character. Then there's More's whole misbegotten multilingual pun "utopia" in the first place ("utopia"/"eutopia") and its implications. Sniff! Such shallow analysis and grasp of literary history just will not do.

  This sausage brought to you by waaaaay too much time theorizing about utopian and dystopian literature in the course of post-baccalaureate studies in English literature. And if you don't stop me now, I probably — no, certainly — will theorize again! Perhaps it will be only over wine and cheese at some faculty gathering or lecture series, but it will happen... and yes, you should be afraid.

Labels: arts, censorship, culture, internet, mass media, politics, publishing

link to: 08:33 [GMT-6]

Last Thursday, there was an omnibus hearing covering a bunch of motions and administrative matters. Last Friday, Judge Glenn signed an order establishing deadlines (Doc. 580) (PDF). And, of course, the "publishing press" has had not one word to say on it.

The 08 April 2011 order establishes the "bar date" for filing proofs of claim in the Borders bankruptcy. For certain governmental entities, that date is 15 August 2011; for everyone else, that date is 01 June 2011. And, unlike most other deadlines in far-off cities with which Americans are familiar — like the IRS deadline this coming Friday — that is the date by which a proof of claim must be received in New York. This is most likely to affect small presses (and, indirectly, authors whose books are published by small presses), and especially those who dispute Borders' accounting... which, based on my experience with bankruptcies in general and accounting in the industry in particular, should exceed 100% of the claims on the various schedules (Docs. 491, 493, 495, 497, 499, 501, 503, 505).

Fortunately, the actual process of filing a proof of claim is relatively simple and does not require either a lawyer or a filing fee. The actual form is the last two pages of the 08 April 2011 order, and only one side of it requires filling things out. A claimant must include documentation proving the claim, but that's relatively easy in these circumstances — copies of shipping invoices and payment records would suffice.

Unfortunately, the consequences of not filing a proper proof of claim are rather draconian. Although both the Bankruptcy Rules and common law concerning bankruptcy filings say that those whose claims are properly scheduled need not file separate proofs of claim, that glosses over the key adverb: properly, which includes both the nature of the claim and the amount of the claim. Consider, for example, a hypothetical author who has essentially "self-published" with a vendor (not just Borders — I'm taking the opportunity to do a little general education). The schedules — if they list that author's claim at all, which is extraordinarily unlikely — will almost certainly list that claim on Schedule B (personal property) as an amount owed... which is only part of the claim. Instead, such claims should be listed on Schedule G (executory contracts) so that the publishing rights get returned, too — so as to avoid creating later doubt concerning those publishing rights. If this sounds disturbingly like the problems with the iBooks bankruptcy that resulted in transfer of publishing rights to a new entity without any notice to the authors whatsoever — even when the author-Preiss/iBooks contracts required author approval that was never sought, let alone obtained — it should.

Thus, anyone who has a direct claim against a Borders entity for anything other than a straight "I shipped them three cases of commemorative pencils on a nonreturnable basis for which they haven't yet paid me"-type vendor claim should (1) read the disclaimer in the upper-right-hand corner of your screen and (2) probably consult counsel. That may not be necessary to actually file the proof of claim... but it may well be necessary to determine whether to file a proof of claim, and for what.

Labels: copyright, intellectual property, law practice, publishing

link to: 12:17 [GMT-6]

• Here's an indirect demonstration that Borders will never be able to emerge successfully from bankruptcy: Even when talking about how tough it is to be a small publisher, publishers get the math wrong for their own businesses. Now this was in the Grauniad, so perhaps the math error in stating that £4 – £0.82 = £2.18 is a copyediting error at the newspaper (which is ironic enough on its own, given that the writer — the publisher of a small imprint — explicitly talks about paying more for an above-average copyeditor, else there would be "typos and a bad reputation"). That, however, only masks the equivalency claimed between the real costs and a £2.50 fulfillment (shipping and handling) charge... which implies (based on current Royal Mail rates) that Linen Press prints monster-sized books, which is inconsistent with their retail pricing, and for a small press with limited inventory like Linen Press handling costs should be lower anyway.
• And more directly, of course, one must consider the varied opinions on how the meeting of Borders' creditors went yesterday. Publishers' representatives are claiming that Borders' plans are unrealistic, while Borders' representatives are claiming that the talks were "constructive" and leading toward a profitable future. The landlords' representatives are, as a group, keeping quiet... because if there's one trade sector more prone to dodgy accounting than the entertainment sector, it's real estate, and the landlords would be winners no matter what (if, that is, the accounting is honest — and usually even when it isn't). The results of today's hearing should be interesting!
• Meanwhile, Kris Rusch indirectly states why the Kmart/Borders model of "category management" won't suffice to make Borders a profitable venture. The short version is that (ignoring, for the moment, the vast and overriding flaws in the data-gathering process) what data has been collected points most directly to author-specificity — not category-, publicity-method-, price-, or anything else — as actually driving book sales... and these days, there aren't a whole lot of true, bestselling authors who do not have works that are arguably in more than one category (and, in many instances, for single works!). Consider, for example, UnnamedClient, whose works include both overtly YA and overtly urban fantasy (and overtly adventure science fiction), but for which most of the individual works also would fit comfortably in other parts of the bookstore. In short, UnnamedClient is — all by her/himself — a "category" at least as coherent as "romance" or "horror" or "New Age and inspirational".

  It's not just the commercial publishing model in NYC that's broken, kids; it's the entire chain between author and reader, in a self-devouring festival of parasitism. Or zombies, as the case may be... except that there are few braaaaaaaaains to be found among those who continue trying to force old square pegs into 1990s round holes (let alone today's star-shaped ones).

• Here's another nonparticipant's view of the GBS settlement rejection, and what it might "mean." Of course, my own perspective is yet more different; to only slightly mangle Churchill's words, intellectual property regimes both formally and effectively controlled by democratic governments are the worst possible way of encouraging creativity and progress... except for all of the other systems that have been tried. (Which is not to say that that's what we actually have right now, but it's at least the ideal for what we have right now.) No real system can be perfect, or can anticipate perfectly its own evolution in response to changes in context. Trying to pretend that any system would not create negative externalities is complete BS. That premise is what is behind Ms Goodhand's remarks... and it's a premise that I thoroughly agree with.

Labels: copyright, intellectual property, publishing

link to: 13:03 [GMT-6]

• English philosopher A.C. Grayling discusses his book promoting atheism. The money quotes:

  "The truth is that the book is very modestly done. My wife did give me a card," he giggles, "that said, 'I used to be an atheist until I realised I am God'. And I know that on Monty Pythonesque grounds there's a good likelihood that in five centuries time I will be one, as a result of this."

  * * *

  "Well, firstly, I think the charges of militancy and fundamentalism of course come from our opponents, the theists. My rejoinder is to say when the boot was on their foot they burned us at the stake. All we're doing is speaking very frankly and bluntly and they don't like it. So we speak frankly and bluntly, and the respect agenda is now gone, they can no longer float behind the diaphanous veil &#mdash; 'Ooh, I have faith so you mustn't offend me'. So they don't like the blunt talking. But we're not burning them at the stake. They've got to remember that when it was the other way around it was a much more serious matter.["]

• This is not an April Fool's joke: The Governator will be available shortly.
• If you think that moral rights is a nightmare for fan fic, consider it for tatoos... which also leads to the question of how long intellectual property protection for magical spells lasts, and what kind Gandalf might rely upon... I can just imagine Gandalf v. Saruman, 477 Stew.Ct. 219 (3022) (Faramir, J.) (assessing punitive damages for misappropriation of copyright in Palantir activation spell for non-wizards).
• Just a quick Borders bankruptcy update, and then I'm off to medical stuff. Last week, the various Borders entities finally filed their schedules of assets and liabilities. They make fascinating reading. This delay from filing is a tolerated norm in large Chapter 11 proceedings... but it shouldn't be. The schedules are due on the date of filing, and only when the bankruptcy filing is either involuntary or unforseeable should a delay of more than ten days or so be tolerated. Frankly, I don't give a rat's hindquarters "how much work" it was to create these schedules; one simply cannot properly advise one's bankruptcy client — in this instance, the debtor — without having done at least 80% of the work necessary to preparing them before filing.

  I'm not a forensic accountant, but there are some disturbing discrepancies between various of the schedules among the entities. I may be an IP nerd and civil procedure geek, but I draw the line at chartered accountancy. Of course, it is related to the entertainment industry, so I suppose we must expect some dodgy accounting! The key point, though, is this: The dodgy entries I found are almost uniformly to the disadvantage of suppliers of material for sale at Borders stores and in favor of landlords and utility companies. Considering that this is the same problem that led to refiling of Kmart's schedules when that former parent of Borders went through Chapter 11 a few years back, I shouldn't be all that surprised... because if there's one thing that the American retail sector has proven over the past quarter of a century, it is that nobody with the ability to change anything is capable of learning from mistakes.

Labels: civil rights, culture, intellectual property, lolpol, politics, publishing

link to: 21:03 [GMT-6]

• Professor Leiter has struck a blow for intellectual honesty.
• And so has John Scalzi, if a bit less on the "intellectual" side, joined by Charlie Stross... and not joined by Jay Lake.
• The Cubs began their season with a loss to a team whose best player underwent an emergency appendectomy. It's already time to wait for next year, Cubfans: you're already cheering for a last-place team.
• A man has been "fasting" for Lent on every college student's idea of a liquid diet.
• In GBS news, there's been a change to the proposed settlement... but even the new one appears to be opt-out, so I think Judge Chin has already adequated expressed his distaste.

Labels: culture, internet, law practice, miscellany, politics, publishing