link to: 16:15 [GMT-6]

• Here is yet another example of why I do not use the Nimmer treatise on copyright. As Professor Bartow notes, the current Nimmer has (yet again) changed his "authoritative" opinion to match his clients' immediate interests in a live dispute — and one should remember that neither the current Nimmer nor his father (who originated the treatise) represent actual creators, but only exploiters and middlemen. There's nothing wrong with practitioners being involved in writing treatises; many treatises could definitely do with some input from the "real world" (I'm thinking, in particular, of the notoriously-disjointed-from-reality old chestnut Wigmore on Evidence). There's quite a bit wrong, though, when the practitioner-slash-treatise-author-slash-authority changes his/her opinion not of what the law should be, but of what the law is, to match his/her own clients' immediate preferences in a live dispute.

  Perhaps Professor Bartow herself is too polite to note it; perhaps she is a bit too removed from practice to have noticed it; but I found yet another ridiculous aspect of Professor Nimmer's change of opinion: It's in an improper document that the court should never have allowed to be filed. An expert opinion may only "assist the trier of fact to understand the evidence or to determine a fact in issue" (Fed. R. Evid 702, emphasis added). Arguments about the law are for the lawyers and to the judge only; if one wishes to bring in material from a "legal expert," the proper method to do so is via citation to legal authority. There's nothing wrong with that citation being to a yet-to-be-published work — so long as one provides copies to both the judge and the other side — but putting an interpretation of legal doctrine in as an "expert opinion" is flat wrong. Another big LA law firm tried this BS in the Ellison matter to no avail. You'd think they'd learn that if they're going to tell the judge what the law is, they should do so in the context of telling the judge what the law is.

• Late-breaking news bulletins: FIFA is corrupt and won't police itself. The IMF is corrupt and won't police itself.
• And another war criminal heads to trial at the ICC in the Hague. It's not going to bring back the dead of Srebrenica (or anywhere else); but then, the ICC should function more like a truth-and-reconciliation commission than anything else, if only because then its purported infringements upon sovereignty would not be at issue (or, at least, not as much), and governments that oppose it would lose one of the rationales for that opposition.
• Professor Rebecca Tushnet notes roundabout limits on Dastar in the context of a big circuit split and some really, really incoherent doctrine and writing at the Supreme Court (and in the Courts of Appeals). Basically, Dastar is the "solution" to the problem of recharacterizing a copyright suit as a trademark suit after the copyright has expired... and it's a pretty poor solution all around. There's a difference, though, between exemplary use (also called "referential use" and "nominative use" at times, but I prefer the foreign term because it doesn't have the doctrinal baggage attached to those terms in the US) and actual exploitation of the mark as content itself. As Professor Tushnet describes things, this is pretty clearly a noninfringing exemplary use, and the court reached the theoretically defensible "right" result. One must ask, however, whether the mark owner's purpose was at least in part colored by the rigidity of the "must defend" aspect of trademark law, rather than even a throw-everything-at-the-wall-and-hope-something-sticks litigation posture of so many large law firms (I don't have personal experience with the mark-holder's counsel, so perhaps that's just a coincidence in this matter).

  This opinion, and the underlying doctrine, may matter to authors who use the names of real firms and products (and/or slogans, etc.) as marks of versimilitude in their fiction. The details must await another time...

Back to the fun stuff. For some value of "fun" exceeding what I'm having now, I hope...

Labels: copyright, intellectual property, jurisprudence, law practice, politics, sport

link to: 11:58 [GMT-6]

• Sometimes a "special relationship" isn't as special as it should be. Prosecutors have a special duty to disclose everything they know, at least to the other party; one can never tell when the seemingly irrelevant, mildly exculpatory bit of trivia will lead to the critical evidence of actual innocence (right, Mr Cruz?). All lawyers owe a "duty of candor" to every court... and no lawyer more than the Solicitor General. The Acting Solicitor General, General Professor Neal Katyal (as he would be called in neoclassical German style), now confesses error seventy years late in the execreble Hirabayashi/Korematsu matter of Japanese detainment. Not only are those cases objectively indefensible racism (as Justice Murphy called them at the time in dissent), but now it has been admitted that they were based upon distorting the record in front of the Court.
• Civil rights violators should be very, very afraid when a case bearing the name "Brown" gets to the Supreme Court. This time, Brown v. Plata, No. 09–1233 (23 May 2011) (PDF), won't be named Brown in its short form, both to avoid confusion and because the Brown in this instance is the governor of California; it will instead be called Plata. This is the California prison overcrowding case; in a 5–4 decision, Justice Kennedy wrote that a mandated reduction in prison population was a reasonable, narrowly tailored remedy for the constitutional violations (such as lack of healthcare) caused by a prison system with twice its designed population.

  My interest today, though, is not with the majority opinion, but with the shoddy legal analysis and nigh-incomprehensible historical ignorance appearing in dissent. Justice Scalia penned the first dissent, joined by Justice Thomas; in it, he claims that

  Today the Court affirms what is perhaps the most radical injunction issued by a court in our Nation’s history: an order requiring California to release the staggering number of 46,000 convicted criminals.

  (slip op. at 59), which neglects the earlier Brown matter entirely involving millions of melaninically enhanced schoolchildren... whose legal status had been legislatively established, not judicially. It neglects the obvious impact of injunctive relief implied and actually imposed for "staggering numbers" of "convicted criminals" in Miranda, in Gideon, in Mapp, and in Katz (to name just a few favorites). Further, virtually none of the authority that he cites in support of his longterm disdain for "structural injunctions" either (a) acknowledges their use by the Supreme Court in other civil rights matters in the face of legislative and executive disregard, or (b) constitutes a majority opinion (the judicial opinions are almost all concurrences, and the less said about the other sources the less character however-justified assassination I'll be engaging in online). The second dissent is, if anything, worse. Justice Alito, joined by Chief Justice Roberts, asserts that Congress, through its legislative authority, could prevent courts from providing a remedy for constitutional violations. Again, the dissent completely neglects the past, and even past opinions by Justice Alito himself; the more-than-faint sound of whinging from that opinion is more than troubling from the highest court in the land.

  The obvious link between the two dissents is their treatment of the 46,000 as all equally undeserving of relief, and thereby making two bad assumptions. The first, and most obvious, is that every prisoner to be released is both substantively and procedurally guilty. Hmm. Didn't the Court — with those four dissenters here in Plata in the respective majorities at least once — recently hold that a couple of federal white-collar prisoners had been improperly convicted, indicating that not all prisoners have exhausted all of their potential remedies? Second, the dissents implicitly deny that a legislative or executive policy decision can have unconstitutional consequences that — as the last resort — the courts must rememdy, however distasteful they find that remedy. In essence, sometimes governing requires a branch of government to step in to another branch's area of competence when that other branch refuses to fulfill its responsibilities. Separation of powers, however strict, is not separation of responsibility to the Constitution as a whole.

Well, that's enough pontificating for now. Maybe later, maybe tomorrow, I'll have some comments on UK privacy legislation and "superinjunctions," Google, e-book piracy, and so on.

Labels: arts, civil rights, culture, jurisprudence, military, politics

link to: 12:42 [GMT-6]

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

  Remember, "fan" is a elision of "fanatic" — and that shows the actual source of the problem. Trufen simply don't have enough diversity in their fanaticism. Perhaps the best example is stereotypical Trekkies who rearrange their lives around one particular fictional construct. However, even in my own Trekkie phase — yes, I Was a Teenage Trekkie could well be semiautobiographical pastiche, bad grammar and all — my own fandom was quite diverse, in that it went far, far outside of slavish devotion to one oeuvre (which I could spell correctly even then). This isn't restricted to visual-media scifi, or even speculative fiction in general: There have been disturbingly similar followings for other properties, beginning not later than Sherlock Holmes. In any event, I slaked my thirst for more by discovering more; that is, the best solution to ire at George Lucas for the "prequel trilogy" is not fanfic, but a library card.

• The 'net's only worthwhile feline the IPKat offers a useful summary of the Hargreaves Report (with an embedded link to the report itself) with a "top ten" list of recommendations. I'm still digesting the whole thing, but I have a few sideways reactions to the report based on reality:
  • Lord Hargreaves (and/or his staff) need(s) to learn how to write declarative sentences when making a declaration; convoluted sentences when describing something convoluted that is not amenable to simplification; and know the difference between the two. This is not a matter of "it's an academic treatment; what did you expect?"; it's a matter of "the writing style is ill-adapted to the material."
  • I am sick to death of the copyright system being blamed for inadequacies in other parts of the law; in particular, for inadequacies in the law of insolvency and of estates. If those two areas of law — in both the UK and the US — required accurate records of copyrights held, transferred, and forfeited, at least 80% of the "orphan problem" that takes up so much space in Hargreaves' report would never exist... and those in a position to prevent it from recurring would be on notice to do so. Don't blame copyright for solicitors'/lawyers' carelessness.
  • The most disturbing aspect of the report is its rejection of the US concept of "fair use" as a possible reform to UK law. Leaving aside the diffuse nature of "fair use", this reflects a parochialism that fails to consider free expression issues, whether those free expression issues arise from the First Amendment, from the UN Declaration on Human Rights, or from various EU proclamations on freedom of expression. That's not to say that "fair use" is, by any means, perfect — just that it is better than "fair dealing", even if one considers only the law that is definitively binding on the UK. I'm afraid I must give Lord Hargreaves at best a C+ for his discussion of the context in which fair use/fair dealing arise... and, sadly, this is the best-written part of the report.
  • On the whole, the report demonstrates little understanding of the creative process and how diverse sources of inspiration lead to new works. Instead, it focuses on the pseudoeconomic concept of "efficiency" as an overriding objective. This is also reflected in the blithe dismissal of relationship between form and content when discussing digitization of existing materials — something that a century and a half of battles over whether photography (and, in particular, photography of existing works of art) is itself creative and/or infringing should have cautioned against.
  • I think also that the economic context of "innovation" has overwhelmed all other contexts of "innovation" — particularly in the large section of the report concerned with patents, in which virtually every concern and conclusion is based upon enhancing the economic side effects of invention, and not the advancement of the underlying "useful Arts and Sciences" (to import the American term). This is a peculiar inversion of "hindsight bias": A "foresight bias" in which all future value is measured against direct profit potential.

  On the whole, I'm not encouraged.

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

link to: 11:07 [GMT-6]

• The correct answer, obviously, is "beatniks" — many of the Beat Poets have collections available:

  

• Licensing. Lawyers are licensed and regulated, however ineptly and idiotically. So are architects, accountants, engineers, real estate agents, doctors, nurses, plumbers, hairdressers, and interior designers. So are talent agents in California... but only insofar as they are dealing with music, television, and film; "managers" aren't licensed, and those same "agents" are subject to no licensing or regulation for dealing with anything outside of those areas.

  If we license interior designers, we should bloody well be licensing and regulating literary agents. We don't — not in any state. Anyone who objects that this has First Amendment implications needs to overcome the same hurdles that California did regarding licensing of music, television, and film agents (and, for that matter, licensing of the very people who make First Amendment rights possible — lawyers). Transactions so rife with incomprehensible practices, rights grabs that last over a century, and the occasional multimillion-dollar deal sound more like real estate than anything else.

• The International Criminal Court's prosecutor is seeking an arrest warrant for Q'daffy Duck, alleging crimes against humanity. That's all well and good, but I'd like to know if the nearness of Libya and its oil supplies to Europe means that it is fundamentally different from Rwanda, or Somalia, or Zimbabwe, or Iran, or North Korea, or the Congo (take your pick of them, or all of them in their various incarnations), or Burma/Myanmar, or any of a dozen other nations filled with those not of the Caucasian persuasion in an internally consistent, rational, logical way. Now, admittedly, there is the problem/issue of "prosecutorial discretion" — but even discretion must have some basis. And note, too, that I'm not suggesting, let alone expecting, any consistency in dealing with similar (or identical, or worse) problems among the elites of Western Europe and North America...
• Professor Madison offers an interesting summary of yet another instance of bad facts inevitably leading to bizarre legal reasoning. Distribution of course reserve and classroom materials in part from bound volumes is now, and probably always will be, a difficult and problematic issue. The critical bad fact in this morass — one that would make it a morass regardless of anything else — is the soto voce participation by the Copyright Clearance Center, which is one of the clearest examples anywhere of agency capture (and bureaucratic self-interested dominance) of nongovernmental agencies... along with ASCAP and BMI.

Labels: copyright, intellectual property, jurisprudence, life, politics, publishing

link to: 09:29 [GMT-6]

• An interesting story on the recorded music industry presages nothing less than the return of the Duke of Milan... as an untitled commoner: In short, a return to the patronage model rejected in the Statute of Anne (1709), the first modern copyright statute. The most-telling comment is this one:

  [W]hen Cohen justified 360 deals—the new contract standard in which labels take a cut of touring and merchandising revenue in addition to recordings—as, essentially, a replacement for lost recording revenue, necessary to maintain executive salaries, then admitted that, even in such partnerships, the label still maintained sole ownership of master recordings, one could only marvel that even a digitally-diluted siren song of fame remained a strong enough to keep such models going.

  (emphasis added) It wasn't that the "replacement for lost [] revenue" was necessary to maintain corporate profits; the replacement was, instead, necessary to keep the younger sons of the Duke in the lifestyles to which they had become accustomed. The executive salaries are seen not as a reward for hard and successful work, but a continuing property right that is the rightful possession of anyone who weasels his/her way into the class of persons whose original position includes that property right in the first place. For those of you with a more-than-trivial background in political economy, this is indeed a rent-seeking behavior.

  Ultimately, that's the real problem with patronage as the default alternative to individual market-based compensation of creators (which is far from perfect itself): The self-perpetuating nature of the patron class, including its narrow worldview. It's bad enough when the sins of the parents are visited on their children... but not enough people are looking at the Crusades and the First Thirty Years' War and the Three Kingdoms eras and questioning whether presuming that the virtues of the parents being visited on their children is, on balance, a good thing — let alone the narrower question of visiting the virtues of the past upon one's own future, particularly in anything related to "expression," "creativity," and the arts.

• Ursula Le Guin is wise (as usual; I don't think she can help it) on the difference between "slumming literati" and "writers of science fiction" (emphasis in original):

  Some authors fill a novel with futuristic scenery and jargon and then strenuously, even stertorously, deny that it's science fiction. No, no, they don't write that nasty stuff, never touch it. They write literature. Though curiously familiar with the tropes and conventions of the despised genre, they so blithely ignore the meaning of terms, they reinvent the wheel with such cries of self-admiration, that their endeavours seem a doomed effort to prove that one can write a novel without learning how.

  That means you, M___ A___ and M___ A___ (among many, many others): No matter how hard you try, the tentacles of your talking space-squids have their suckers all over your books... which could have been vastly better as literature if you'd had any idea of either the ontogeny or phylogeny of tentacles.

• Well, of course radium'll kill ya.

  

  That's right, validation-seekers and attention-whores and lazy-ass-parents-looking-for-easy-parenting-memes: Acclaim is a consequence of what you do, not the objective itself — and ya'll might want to be a little bit more discerning on who you choose as a role model. After all, Marie Curie was French...

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

link to: 12:47 [GMT-6]

• Monica Goodling did not get what she deserves. She got more than I expected the Virginia bar to give her for her partisanization of, and ideological purity tests for, hiring at the Department of Justice under George III, though: she's been reprimanded. Nice slap on the wrist, there, even if it's more than I expected (which was nothing). <SARCASM> Yeah, the legal profession does such a good job of self-regulation, state by state, that there's no need for any changes to bring a system established in the nineteenth century into the twentieth, let alone the twenty-first. </SARCASM>
• This can't be a good sign: Switzerland is joining the French e-book-price-fixing party. All they're doing is guaranteeing pirate markets... and I do not think it entirely coincidental that it virtually guarantees the continued existence (and profitability) of one of the largest file-sharers, which (although actually controlled elsewhere) is formally organized in Switzerland.
• Borders bankruptcy update: Nothing to see here. The routine objection to the purportedly inadequately detailed invoices for professional fees has been filed, and responded to by more detailed (but not, in any sense for those without enough background to read between the lines, enough) revised invoices. Otherwise, things proceed apace in a billion-dollar retail-sector bankruptcy — that is, with no respect whatsoever for anyone whose interest in the orderly disposition of assets had not been reduced to a sum carried on the books of the debtor with a specific name attached to it (even an inaccurate or improperly attributed entry). That means you, authors. That also means you, customers.

Labels: intellectual property, law practice, politics, publishing

link to: 14:01 [GMT-6]

• Cultural arrogance plus lingering communism (not Marxism) among the governing elite equals... price uniformity imposed on e-book sales in (and to) France by the French government. In a unanimous vote. This, if nothing else, justifies kicking France not just out of one of the five veto-power seats on the UN Security Council, but entirely off the Security Council.
• Juan Cole valiantly attempts to debunk the (fear, uncertainty, and doubt)^-1 surrounding that little incident in Abbottabad. He'll fail, because the arrogant certainty of the positions he's trying to debunk makes for better news and soundbites... but it's a worthy effort nonetheless.
• A fairly important copyright-related decision from the Ninth Circuit came down today: The en banc opinion in Montz v. Pilgrim Films & Television, Inc., No. 08–56954 (9th Cir. en banc 04 May 2011) (Schroeder, J., 7–4). The majority held that a Desny claim is not preempted by the Copyright Act; the four dissenters would have held otherwise.

  I have very mixed feelings about this decision. On one tentacle, I'm in favor of uniformity on copyright matters, and this decision not only entrenches an implicit circuit split with the Second, Sixth, Seventh, and Eleventh circuits, but it continues the American "scripts and teleplays are special" meme that is entirely inconsistent with international copyright law (cf., e.g., the treatment per force of scripts as works for hire) and any internally consistent understanding of creativity and the creative process. On another tentacle, a Desny claim operates as an important check on one rampant aspect of unethical (and arguably criminal) behavior in the entertainment industry: Use of others' material without compensation. On yet another tentacle, though, we have another aspect of the idea/expression dichotomy that would have formed a much better foundation for reaching the same result in this matter.

  A Desny claim arises when a freelance writer sends material — it could be as little as a two-page proposed summary, a formal treatment, or a full script — to a producer. That producer then "rejects" the material, either explicitly or (more commonly) silently (by not starting negotiations with the writer)... but then, some time later, essential parts of that material appear in something produced by the producer. Because the material was submitted to the producer with an expectation of mutual financial advantage through producing it — the writer gets paid his/her fee, and the producer profits from the film/TV production — the California Supreme Court decided in Desny v. Wilder, 299 P.2d 257 (Cal. 1956) that the producer has breached an implied-in-fact contract with the writer... not by using the ideas in the submitted material, but by not paying for the ideas. Of course, studios and producers don't like Desny actions, and try desperately to get them recharacterized as copyright actions (since they have a lot more defenses then, such as failure to register, the scenes à faire doctrine, substantiality of use, etc.). That's precisely what happened here.

  I would have reached the pro-writer result in Montz by a rather different route — by way of Feist Publ. Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991). Under the US Supreme Court's doctrine in that matter (which is now two decades old), the Copyright Act protects original expression, not facts... or abstract ideas. Feist, 499 U.S. at 348–50. Since a Desny action is ordinarily (and, in Montz, explicitly) concerned with taking of ideas without compensation, I would have held that "preemption" and technical rules of pleading were irrelevant; I would, instead, have held that the subject matter of a Desny claim (or, in any event, Montz's claim against Pilgrim) is outside the Constitutional scope of the Copyright Act, and that therefore we don't have to worry about either preemption or pleading practice. Instead, though, Judge Schroeder and her six colleagues in the majority focus on pleading practice and the availability of certain remedies under the Copyright Act, which rather puts the cart before the horse's embryo. One might even argue that the federal courts didn't even have subject-matter jurisdiction to make this decision because it's a state-law claim between nondiverse parties...

Labels: copyright, intellectual property, mass media, military, politics, publishing

link to: 11:33 [GMT-6]

• License or sale? The recorded music industry is struggling with that now, and it makes a huge difference to recording artists (not so much to songwriters, but that's for another time). The publishing industry's "version" of this is its pathetic, misguided attempt to impose a 25%-of-net flat rate on e-book "sales"... a model that's going to fail, if only on antitrust/unfair competition grounds if somebody challenges it under the proper circumstances. In this instance, though, the traditional decade lag between the economic problems/solutions/paradigm of recorded music and those of print publishing is going to be somewhat less; and that's a good thing, from both the rigid law-and-economics/classical-contract-theory perspective of "ensuring certainty over time" and those of us who believe in active enforcement of unfair competition law. It will be good under the former theories because in this instance it will provide some certainty where now there is none — and where there is no certainty, holders of existing capital refuse to take risks that The System demands that they take. It will be good under the latter theories because it will make clear exactly what kind of collusion is going on, and that all too often the choice of publishing model/empire is a choice of exactly which con artist one wishes to be fleeced by.
• Speaking of being fleeced by con artists, there's an incredibly misguided essay in yesterday's NYTBR that tries to analogize the process of book publicity and marketing to "[p]eddling my work like a V_____ salesman". Mr Perrottet doesn't know what he's talking about... because the market for V_____ doesn't resemble the market for books in any relevant characteristic. Of course, that may be why publisher marketing and publicity efforts — which too often resemble those for "limpness" pills, but without the disclaimers — don't work too well. Just imagine a similar disclaimer for this book:

  Do not read To Kill a Mockingbird if you wear white bedsheets, often prescribed for self-identity pain, as this may cause a sudden, unsafe jump in blood pressure. Discuss your general intellectual status with your instructor to ensure that you are educated enough to engage in intellectual activity. If you experience moral pain, nausea, or any other discomforts during reading, seek immediate intellectual help. In the rare event of introspection lasting more than 4 hours, seek immediate intellectual help to avoid long-term injury.

  If you experience sudden decrease or loss of trust in the criminal justice system, stop reading moderately challenging books, including To Kill a Mockingbird, and call a preacher right away. Sudden decrease or loss of trust in established social orders has been rarely reported in people reading literature, including To Kill a Mockingbird. It is not possible to determine whether these events are related directly to reading or to other factors. If you experience sudden decrease or loss of trust in established social orders, stop reading and contact a community leader right away.

  The most common side effects of reading are headache, facial flushing, and upset stomach. Less commonly, bluish vision, blurred vision, or sensitivity to light may briefly occur.

  in the usual style one sees on TV, perhaps intoned with glazed-over eyes by an unduly attractive (gender irrelevant) fake grad student to a fake quiz section for a fake university's fake English 107 (Introduction to Literature) course. Especially since that author has, for half a century, refused requests for press interviews, without seeming to hurt sales much (if at all). I don't even want to think what the disclaimers for 1984, or The Left Hand of Darkness, or A Theory of Justice, or even Molecular and Cell Biology for Dummies might look like!

  The rest of the essay is wrong, too; detailed analysis will have to wait for another time. This is, after all, only a link sausage.

• Speaking of writers who would need extensive disclaimers to get past the morons: RIP Joanna Russ.

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