link to: 15:22 [GMT-6]

Very Few Real Experts Are Talking Heads and Spokescreatures

 

... and vice versa.

• Further evidence that we're underusing a critical, highly cost effective medical instrument.
• My response to those "My Kid Can Beat Up Your Honor Student" bumper stickers popular in the late 1990s was to ask those parents to guess who might be the judge in their little thug's divorce/domestic violence proceeding in a couple of decades... or who his boss might turn out to be. Thus, my own parenting objectives...
• The bookshelf at the Hannibal Lecter School of Cooking:

  

  Yes, I am suggesting that the cookbook segment needs to take just a little bit more care with its titles...

Life has gotten in the way of doing anything more extensive, but over the next couple of days you can look forward to an attempt to describe the civil procedure highlights of the Supreme Court's decisions earlier this week, and earlier in the term (and what they mean for authors), and how the obviously broken nature of American politics exactly reflects what is most wrong with the entertainment industry in general and the publishing segment in particular.

Labels: culture, life, politics, publishing, science

link to: 12:23 [GMT-6]

The Video Game's Not for Burning

 

Since I often feel like the publishing industry wouldn't just be glad if I was burned at the stake — it would sell pseudocelebrity personal reflections on the otherwise-unheard-of incident...

• Just what educational publishing needs: One of the imprints most prone to reinterpretation of contracts in its own favor in American educational publishing is being purchased by a unit of one of the most rapacious publishers out there. We've got both kinds here: Country and Western.
• The Atlantic has a fascinating article on Weird Al and the changing acceptability of "parody" that rather emphatically, if nonspecifically, cuts the definitional legs out from under Justice Souter's ill-considered distinction between parody and satire in 2Live Crew.
• From the department of buggy-whip manufacturers' complaints: Oh, my, J.K. Rowling's turning of the tables on chain bookstores has resulted in a tempest in a teacup (and outraged bloviation) from established chains... but, interestingly enough, very little open and public reaction from either specialist stores or true independents, whether over here or across the Pond. And the irony that her print publishers will be depending upon her to accurately account for and timely pay their shares of e-book royalties is just far too delicious for words...

  In this instance, the main interest is in defining what the buggywhip is... and who the buggywhip manufacturers are, and how they got into the business. As the lovely and talented Sarah Weinman implies in the first link in the preceding paragraph, the "problems" are not with either all bookstores or even all kinds of books; they are, instead, with a submarket: Event-laden, brand-driven bestsellers (and cheap knockoffs thereof). Haven't we seen this relatively recently in American retail? Perhaps in the demise of Montgomery Ward; the bankruptcy of K-mart; the transmogrification of Sears, including the sordid subtales of Dean Witter and the Discover card; even the bankruptcy of Borders (which, not at all coincidentally, was driven by the expectations and corporate culture forced upon it after K-mart bought the chain in the early 1990s)... My point is that the "marketplace," such as it is, is changing at a substantially greater velocity than the expectations, perceptions, and abilities of land-based-wealth investors, including both shopping-center landlords and the gentleman-farmer-and-mine-owner investors who control so much of publishing itself (specifically, the foundations for the fortunes that created von Holtzbrinck, Bertelsmann, Pearson, and Lagardere). That is, the "proper place" for bookstores is for noncommodity publishing — which requires treatment almost from beginning to end that is at odds with the notions of efficiency taught (however ineptly and however incorrectly) in business schools across the globe.

• From the department of not-judging-a-book-by-its-cover, there's a fascinating piece on the Comic Book Legal Defense Fund's efforts on behalf of an American who was "caught" with manga on his computer when crossing the Canadian border. This leads to a meta-inquiry that is being largely ignored: Without actually reading the material, how was this individual supposed to know that it was contraband? And the implications of that lead to...
• This morning's haul from the Supreme Court. No, really.

  Although not the first decision announced, I'll deal first with the one that authors (among others) are waiting for: Brown v. Entertainment Merchants' Ass'n, No. [20]08–1448 (PDF). By a 7–2 count, led by Justice Scalia, the Court held that California's attempt to prohibit sale and/or rental of "violent video games" to minors violates the First Amendment... if nothing else, because it failed to include so much else in the prohibition that is at least equally questionable:

  Even taking for granted Dr. Anderson’s conclusions that violent video games produce some effect on children’s feelings of aggression, those effects are both small and indistinguishable from effects produced by other media. In his testimony in a similar lawsuit, Dr. Anderson admitted that the “effect sizes” of children’s exposure to violent video games are “about the same” as that produced by their exposure to violence on television. And he admits that the same effects have been found when children watch cartoons starring Bugs Bunny or the Road Runner, or when they play video games like Sonic the Hedgehog that are rated “E” (appropriate for all ages), or even when they “vie[w] a picture of a gun.”

  Slip op. at 13 (citations and footnote omitted). And this, of course, is the other meta-inquiry that the preceding item implicates: Would it be equally inappropriate for an individual to cross into Canada with a copy of the novel Lolita? How about a copy of either the Kubrick (1962) or Lyne (1997) films? How about a graphic-novel adaptation thereof? Worse yet, how about that individual's sketchbook for a graphic novel thereof? As Neil Gaiman says in the second of the two videos from him linked today, we (fortunately) have a first amendment to deal with things like this; unfortunately, Canada does not. The ultimate point is that we do not want governments (in theory) or low-paid government employees actually encountering this stuff without adequate supervision (in practice) making these decisions... any more than we want lawyers deciding artistic similarity (third bullet point).

More later today, or perhaps tomorrow; for the moment, Life calls.

Labels: arts, censorship, civil rights, culture, mass media, politics, publishing

link to: 12:44 [GMT-6]

Almost Summer Vacation

 

... for the Supreme Court. There was a big dump of cases today, two of which concern writers — albeit somewhat indirectly. There will be more decisions next week, but as there are only four remaining cases it is entirely possible that they could all be issued on Monday — including the long-pending decision in the violent videogames case, which was argued in early November and is the longest-outstanding decision. There will also be an orders list indicating any new grants for hearing in the next term beginning on 03 October 2011.

First up, there's a case involving a clash among commercial interests, privacy rights, and the First Amendment. In Sorrell v. IMS Health, Inc., No. 10–779 (23 Jun 2011) (PDF), the Court held 6–3 that Vermont's prohibition on pharmacies selling drug prescription data that identifies prescribers (doctors) to drug-marketing consultants

(1) implicates the First Amendment so directly that it is subject to heightened scrutiny, and

(2) fails heightened scrutiny as a content- and speaker-based restriction on speech.

Admittedly, this doesn't initially seem to have an awful lot to do with writers. What it does, though, is call into question some of the more outrageous nondisclosure agreements that apply to former government employees (remember, the First Amendment concerns governmental restrictions on speech, not private ones... such as KFC making executives sign an NDA that they won't reveal the "secret herbs and spices" at any time). Leaving aside sensationalist issues like WikiLeaks, this nonetheless presents some interesting possibilities for attacking overreaching NDAs — in particular an NDA asserted against a whistleblower.

That was suitably abstruse, wasn't it? The other case of indirect concern to writers just warms my civil procedure geek heart... and relates back to the pending Borders bankruptcy. This is going to take a little bit more initial explanation; the short version is that the Supreme Court stripped Anna Nicole Smith of her bankruptcy-court victory. (No, I do not ask any pardon whatsoever for that pun.)

Bankruptcy courts are courts of limited jurisdiction. This is primarily because bankruptcy judges are not true federal judges. Article III of the Constitution requires that all federal judges have lifetime tenure and serve on good behavior. Instead, bankruptcy judges serve for limited terms of time, and are usually called "Article I" judges (because they sit on courts established by Congress, not by the Constitution). Indeed, under the 1898 Bankruptcy Act there were no "bankruptcy judges", but there were "bankruptcy referees" with even more limited powers. A few other "courts" have similar problems; for example, "immigration judges" are Article I judges with a specific statutory grant of limited jurisdiction from Congress. In bankruptcy, that specific grant of authority is 28 U.S.C. § 157, which gives bankruptcy judges the power to hear cases that are "core proceedings" (§ 157(b)) or "otherwise related to" (§ 157(c)) a bankruptcy case, after some highly formalist maneuvers that don't matter to anyone but the lawyers actually involved.

Anna Nicole Smith was involved in a long-running dispute with her 88-year-old-husband-of-less-than-a-year's son over her husband's estate plans. Ms Smith (known by her legal name Vickie Lynn Marshall) asserted that the son (E. Pierce Marshall III) interfered with her husband's intent to establish an $88 million trust for her. While that dispute was being heard in a Texas probate court, said husband died; Ms Smith then filed for bankruptcy in California. The California bankruptcy judge determined that the probate matter was a "related" case, heard the matter, and decided in Ms Smith's favor; meanwhile, the Texas probate court (ironically enough, also a court of limited jurisdiction) decided the matter in the son's favor; and further meanwhile, both Ms Smith and her opponent died, so the litigation continued in the names of their estates... and Ms Smith had remarried, so her legal name was now Stern.

This is not the first time this matter has been at the Supreme Court, either.

In any event, there are conflicting rulings in the same matter between a federal court and a state court. Under Article VI, cl. 2 of the Constitution, a federal decision should override a state decision... if, that is, the federal decision was granted by a court that had the jurisdiction to do so. One of the overriding principles of Article III is that federal courts have limited jurisdiction. And thus, this dispute.

The Court first turned to the statute to see if that supplied the answer, but all nine justices agreed that the statutory language of § 157 gives the bankruptcy court the authority to hear the Stern v. Marshall dispute as a core proceding. That, however, does not end the inquiry; just because Congress said so does not mean that the Constitution authorized Congress to say so. And that is where the majority, led by Chief Justice Roberts, differed... by holding that the Constitution does not authorized Congress to bring so-called "core proceedings" — let alone "related cases" — directly within the jurisdiction of non-Article III judges to issue a final judgment. Therefore, the bankruptcy judge's final judgment in favor of Anna Nicole Smith on her interference claim was not merely flawed, but entirely void, because it was issued without jurisdiction... and, therefore, the son's estate gets to rely on the Texas probate decision and claim victory — and the $88 million on top of several hundred million dollars' worth of other assets. Stern v. Marshall, No. 10–179 (23 Jun 2011) (PDF)

Now, then, how might this affect authors? The Borders bankruptcy is one possibility; I emphasize, however, that nobody has (yet, anyway) filed a claim or action in the Borders proceedings that raise this question. Consider, for the moment, Arthur Author's royalties due from BigPublisherInc. AA's royalties are calculated based on the number of copies sold, not on monies received. BPI establishes a special reserve for all royalties due to Borders sales, and does not pay them to AA. AA insists that his contract allows only a "reasonable" reserve against "returns," and that once the books have been sold by Borders outlets they can no longer be "returned" — and that, therefore, BPI's special reserve is unlawful and BPI must pay up right now under the strict terms of the contract. Before today, this would have fallen under § 157; it is, however, a purely state-law dispute between AA and BPI without another basis for federal jurisdiction (unless it exceeds $75,000), so it falls into the constitutional gap identified in Stern. Thus, AA need not consent to having the bankruptcy judge hear this claim as part of the bankruptcy matter, even if BPI tries to remove it from a state court on that basis. Whether it is a good idea for AA to make such a claim is for another time, and depends too much on the particular needs of the parties; the point is that it can/will no longer be involuntarily swept into the bankruptcy proceeding. (Arguably, it would have been tough to do so anyway, as neither AA nor BPI is formally "part of" the Borders bankruptcy proceeding, see Stern, slip op. at 29–34. That wouldn't prevent BPI from trying to do so, nor three circuits from having previously held that such a maneuver would be proper.)

Labels: censorship, civil rights, jurisprudence, publishing

link to: 13:19 [GMT-6]

The Cloud Gets in My Eyes

 

I got tied up yesterday, so things got delayed.

• A NYT music critic admits to being a "special needs" person (his words) in a piece on migrating music to the cloud that has more at the margins than I think the critic realizes.

  The obvious problem is with artistic integrity. This is already a minor problem with random-play systems; for example, the Moody Blues' "Timothy Leary" means something completely different — both musically and thematically — when separated from the surrounding "House of Four Doors" pieces on A Question of Balance. Similarly, the three preceding movements of Beethoven's last completed symphony form a musical (and, at times, thematic-echo) prelude to the fourth movement and its chorale from Schiller's "Ode to Joy," and it's difficult to imagine even trying to listen to just part of Keith Jarrett's Köln Concert. (The less said about opera, the better...) There is already far too great a tendency for music listening habits to focus on "greatest hits"; whether it's about attention spans or something else, putting one's "library" into a single, cross-indexed bitbucket online, without regard for context, has its dangers.

  The secondary problem is one of privacy. If it's in the cloud, it's accessible to others (regardless of any touted security mechanisms)... both in terms of what is in the collection and the listening habits within it. It's not just fear of Big Brother that makes this of concern; imagine, for a moment, the glee (or Glee) when a jury consultant in an organized-crime trial discovers that one prospective juror listens to gangsta rap about a third of the time!

• So Bristol Palin has published a memoir — undoubtedly a self-serving piece of nearly incoherent garbage that has what little coherence it can claim only through the efforts of a ghostwriter. Does anyone really need any more epidemiological¹ evidence for the validity of Rawls's concept of the original position as a foundation of justice? After all, but for an accident of birth, virtually nobody outside of a suburb in Alaska would know who Bristol Palin is, let alone care!
• Some experts just aren't expert enough, I suppose. Leaving aside my significant and longterm disagreements with David Nimmer on copyright law and its meaning — not to mention the impropriety of presenting a legal argument as an "expert declaration" — he's not an expert on everything related to copyright. Nobody is. In particular, as both the Central District of California and Ninth Circuit have recently recognized, he is not an expert on the literary analysis necessary to determine whether two works are extrinsically substantially similar. Gable v. Nat'l Bdcast Co., Inc., 727 F. Supp.2d 815, 832–37 (C.D. Cal. 2010), aff'd, No. 10–55420 at 4 (9th Cir. 16 Jun 2011, mem. op.) (PDF).

  Or, to put it both more sarcastically and more succinctly: Lawyers, given their poor skills with writing, are certainly not experts on whether two specific pieces of written work are artistically similar; they are, at best, lay witnesses to that question of fact, and their opinions on that question carry no more weight than that of any other marginally literate adult, absent a particular lawyer's qualifications in literary analysis (as distinct from, and usually opposed to, law).

• Last for today, and far from least, here's a rather bloated link sausage on the limits of copyright; the limits of noncopyright; institutional arrogance; and the interface between writing and the real world.

  In a long-awaited opinion, the Second Circuit decided on Monday that certain parts of the "hot news" doctrine are preempted by the Copyright Act... and nonetheless failed to ground its opinion in the correct part of copyright doctrine, but instead continued its institutional arrogance of citing to a dubious line of its own opinions that does its best to pretend that there is no Supreme Court of the United States. In Barclays Capital Inc. v. Theflyonthewall.com, Inc., No. [20]10–1372 (2d Cir. 20 Jun 2011) (PDF), the Second Circuit determined that New York state law's "hot news" doctrine — which has steadily worked its way into federal law as an equitable sideshow in copyright law — does not allow an investment bank to sue a "news aggregator" who reports the fact that a bank has made a specific investment recommendation for violating the bank's copyright in the fact of that recommendation as "hot news." In an 88-page disquisition that includes an outraged dissent, the Second Circuit almost entirely relies upon a line of cases regarding the "hot news" exception, most prominently National Basketball Ass'n v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997).

  There's just one tiny problem with the reasoning of the Court and of the dissent: The continued reliance on Second Circuit law that was arguably overturned — or at least severely questioned — by either, or both, of the Copyright Act of 1976 and Feist Publications, Inc. v. Rural Tel. Servs. Co., 499 U.S. 340 (1991). In particular, Feist explicitly rejects the "sweat of the brow" theory of ownership of factual information, and implicitly rejects state-law causes of action based on "sweat of the brow" for discovery and statement of facts as preempted by the Copyright Act. And that is all that was needed to decide Fly on the Wall II. Instead, the institutional arrogance of the Second Circuit led it to rely on its own convoluted reasoning.

  Of course, there remains a big distinction between these two possibilities:

  Barclays downgraded its recommendation for International Widgets this morning...

  and

  Barclays downgraded its recommendation for International Widgets this morning, citing significant increases in accounts receivable from the Greek government. According to the lead analyst, "..."

  However, the defendant conceded that the second one — which extensively quotes copyrightable expression, or is at minimum a derivative work based upon copyrightable expression of the analysis — is a copyright infringement. The Second Circuit should have stuck to Feist as the sole necessary ground for decision.

  Also on Monday, I noted a decision from the Third Circuit on the copyright-law consequences of removing a credit from a photograph. This leads to the intermediate case that we really want to understand:

  Does citing the fact of "hot news" without attribution of the source violate § 1202 of the Copyright Act?

  OK, maybe "we" is a bit excessive unless it is limited to intellectual property nerds like me. Nonetheless, it is an important question for writers, and particularly for newsletter writers (especially those who are a little bit too attached to their scribblings). There's a big difference between "is not a good practice" and "unlawful"; however, following good practices — that is, properly attributing sources — avoids the question in a good way.

---

1. Yes, I know the difference between "empirical" and "epidemiological" evidence. Too bad most proponents of so-called "empirical legal studies" don't... and thereby undermine their statistical analyses and evidence gathering. Sometimes having a background in laboratory technique and experimental design can be useful when there are no test tubes or Ehrenmeyer flasks in sight.

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

link to: 13:52 [GMT-6]

I Don't Like Mondays (Third Verse)

 

• Borders Bankruptcy Update: Things are proceeding apace, although it's starting to look more and more like the remaining parts of the chain will be sold en masse to a third party, which will then (either immediately or over time) shed the parts it doesn't really want. What is most interesting is something that news reports like this one are not commenting upon: That the majority of the chain's difficulty is related not to its business, or its business model, but to the arrogance and privilege of real property owners who continue to expect ever-increasing returns on their "location, location, location." <SARCASM> No, of course this has nothing to do with the "housing bubble" or the advisability of renting versus owning. Why would you think that? After all, Mark Twain said we should buy land because they're not making any more (of course, he went through bankruptcy — twice — making his financial advice at least subject to question...). Tulip bulb, anyone? Bueller? Bueller? </SARCASM>
• As more and more authors design e-book covers without the (often dubious) guidance of commercial-publisher art directors, questions like this one are going to become more common. Of course, it's not just the intellectual property questions that need to be answered; it's the unfair competition questions, in particular the quasitrademark concept revolving around passing off... particularly when compared to the strength of the publisher's own brand identification. It would have been nice if we could have seen the spines on Professor Lipton's examples; remember the orange spines on all of those Penguin "classics" edition paperbacks you had to buy in college?
• Several interesting items from the 1709 Blog demonstrate greater flexibility in the users v. holders v. creators brawl across the Pond. Or is that just greater chaos? In any event, I've missed a fascinating conference last week, giggled over hackers straying into pirate territory and ending up walking the plank, and pondered the potential of levy systems to compensate artists... or at least collecting societies.
• In an interesting decision, the Third Circuit held that removing photographer credits from a photograph violates § 1202 of the Copyright Act. Murphy v. Millennium Radio Group, No. [20]10–2163 (3d Cir. 14 Jun 2011) (PDF). This leads to an interesting side question, and one that is unwittingly exposed by the Third Circuit's treatment of a credit as "digital rights management measure" under § 1202: Is plagiarism now an infringement of § 1202, as it involves essentially the same conduct (removal of the proper credit from a published work)? If so, do "unsigned notes" (like continue to be the idiotic practice at Certain Self-Important Law Journals — and you know who you are) fail to have sufficient indicia to fall within a "plagiarism infringes § 1202" theory?
• The Supreme Court decided Wal-Mart today. The dissenters have it right on the law — that is, that the failure under Rule 23(b)(2) is fatal to this particular legal theory in this particular case (thus requiring reversal, as the majority does for broader reasons), but that the plaintiffs should be allowed to recast their motion for certification under a different legal theory. The majority (which agreed with the dissenters as to this case) went too far, in a way, in conflating "commonality" with "predominance" and essentially deciding that a discrimination class action requires proof not of mere effect, but of policy... which, one should note, is inconsistent with the underlying statutes, which (under both statutory language and judicial interpretations left untouched by Justice Scalia's overreaching today) allow "disparate impact" claims.

  That said, the problem is as much with the wording and structure of Rule 23 (which covers class actions) as it is with this particular case, or even the broader class of cases that concern pervasive corporate cultures. The problem is that predominance (Rule 23(b)(3)), commonality (Rule 23(a)), and typicality (also Rule 23(a)) tend to be proven, or disproven, by looking at the same evidentiary materials through slightly different lenses; that is, when one is indexing the documents and depositions for a class certification motion or defense, one ends up referring to the same documents/depositions for all three issues. Perhaps, then, this needs to be reformed to a single, distinct consideration with a single standard... but that would make far too much sense to have a chance of getting through the Judicial Conference as it stands, let alone past Congress for final approval.

  I'll have other injudicious thoughts on judicial stuff tomorrow, such as commentary on the "hot news" opinion from the Second Circuit that is, well, hot news... and what it implies for authors, and in particular for newsletter authors.

Labels: copyright, culture, jurisprudence, mass media, publishing

link to: 12:30 [GMT-6]

Paging Doctor Szell...

 

• Here's a fascinating story at the intersection of intellectual property, legislative agendas, and greed: Senator Schumer's pro-banking-industry contribution to patent reform that actually makes objective sense, at least if expanded to all method patents.

  One might well ask whether similar measures are appropriate to deal copyright trolls like Righthaven, without requiring a judge to consider sanctions... or perhaps to deal with Bratz dolls and overreaching employment contracts, or even improper use of work-for-hire contracts. That, however, seems to be expecting far too much rationality.

• Yawn — another fundamentally flawed "best 100 books" list, this time for "nonfiction", fails to recognize the fundamental problem with all collaborative lists of this nature: They are intensely personal, so the very collaboration is self-defeating. For example, there's not one book on the list that provides more than a cursory discussion of the foundations of post-classical government; surely there was room for John Rawls and/or John Locke in place of, say, even so nicely rounded a work as the Praise of Folly (which requires a fairly substantial background in details of sixteenth-century Catholic practices to understand). A book — and, in particular, a work of serious nonfiction — cannot qualify as "best" to an audience that lacks the existing knowledge to begin to understand it. So, perhaps this list says more about the collective ignorance of those who collaborated to produce it than anything else...
• The lovely and talented Sarah Weinman profiles a literary agency. Be careful: You might learn something, especially between the lines.

And now, off to the dentist...

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

link to: 15:10 [GMT-6]

They've Gone Back to Metric Without Telling Us!

 

This is being posted late because I've been struggling with plumbing most of the day...

• I've heard that the real reason that Anthony Weiner is taking a leave of absence is to upgrade from Oscar Mayer to Nathan's. "It was either that or publicly choose a brand of mustard to endorse, and that's just too difficult a choice," said a hypothetical nonspokesperson. Calls to the Beenie-Weenie Rights Action League were not returned by press time, probably because the operator was too busy snickering to tell us that he couldn't find the number in the phone directory.
• The United States Court of Appeals for the Third Circuit almost got it right on student satires of school officials. In two decisions released today on reconsideration after they were inconsistent the first time around — J.S. v. Blue Mountain Sch. Dist., No. 08–4138 (en banc 3d Cir. 13 Jun 2011) (PDF), and Layshock v. Hermitage Sch. Dist., No. 07–4465 (en banc 3d Cir. 13 Jun 2011) (PDF) — the Court held in each instance that students have a First Amendment right to create parodic/satiric profiles of school administrators off-site (that is, using computers and networks not located on school property) that "did not disturb the school environment and was not related to any school[-]sponsored event" (Layshock II, slip op. at 4). Under those circumstances, the school may not discipline the students.

  The situation was a little bit more tangled at Hogwarts the Blue Mountain Middle School, where Deputy Headmaster Principal McGonigle (really!) disciplined the student in question (twice) for unspecified "dress code violations" resulting in a mock MySpace profile with what the Court characterizes as "adult language and sexually explicit content" that "was so outrageous that no one took its content seriously" (Blue Mt. Sch. Dist II, slip op. at 3, 4). There, the First Amendment claim was validated, but the attendant due process claims were not — leaving the school district free to screw up a student's life for years and then "gracefully" concede when called on it. That is almost exactly what the dissent suggests is the appropriate way to keep control over the school environment. Of course, at least three of the dissenters attended private (not public) high schools... and I seriously doubt that any of them were ever "disruptive influences" themselves, and the same goes for their clerks.

  <SARCASM> Those of us who ran off-campus-produced underground newspapers during our own misspent teen years can stop shakin' in our boots now. </SARCASM> Policies like these are going to continue as long as school administrators overreact to student dissatisfaction and expressions thereof — that is, until some time after the heat-death of the universe. Of course, if the school administrators would avoid arbitrary and capricious policies, not to mention arbitrary and capricious enforcement of those policies, things would be much simpler for everyone! It might help, too, if more school administrators were drawn from the upper ten percent of their own high school classes; but that's an argument for another time.

• The Supreme Court continued its march toward the end of the term today, with four more opinions and a few other items. I'll have more to say on them in the context of the whole month later; suffice it to say, for now, that the emphasis on collegiality promised by Chief Justice Roberts at his confirmation hearings is steadily receding.
• Professor Goldman discusses an interesting DMCA-misuse case on his blawg, and states one reason that I never use the online forms provided by some ISPs (under the DMCA's definition of ISP) for filing infringement complaints: As the defendant/copyright holder noted, the ISP's form didn't allow for anything other than assertion of copyright as a reason for takedown. I also disdain those forms because they are never set to send a copy of what one sends in back — the minimum possible recordkeeping requirement. Under § 512(i) and the reasoning of Ellison, that might not be a "reasonable" policy...

Labels: civil rights, copyright, internet, jurisprudence, politics

link to: 12:45 [GMT-6]

Grading the Papers

 

It's that time of year again: The Supreme Court is in its annual rush to get all the papers graded so it can go on summer break. (Hey, I've spent summers in DC; nobody can really get any work done there anyway, so why not?)

• But first, this important commercial message. There's a flip side to authors going all indy-press: pushing marketing considerations too far toward the writing process. After all, how many times have authors heard "I love it! But I have no idea how to market it." as the basis for a rejection from commercial publishers? Let's leave aside for the moment the lack of imagination and constrained definitions implicit in that rationale (for example, that a successful marketing effort necessarily results in the same temporal distribution of sales as everything else in that category). The key problem is this: If authors start thinking about marketability before they write, there won't be new Harry Potters.
• If you don't want to be classed as an armed career criminal (and thereby subject to a minimum fifteen-year sentence for a later federal conviction), don't use a car as part of a getaway in Indiana. After going through some amazingly bizarre verbal contortions, the Court (6–3) decided that using a car to flee from the police is a violent crime in and of itself. Sykes v. United States, No. 09–11311 (09 Jun 2011) (PDF). Meanwhile, the IMF gets off scot-free for raping and looting two and a half continents, even if its leader has finally been at least slowed down a little bit by a hotel maid with the guts to complain. (Note: That latter story doesn't come from a bastion of the left wing press — rather the opposite.)
• The big (economic) news of the day, though, is that the Supreme Court actually affirmed the Federal Circuit. Contrary to the whinging from doctrinaire conservatives, the federal circuit with the highest reversal rate this century is not the Ninth Circuit, with its purported liberal bias, but the Federal Circuit. This time, though, the Federal Circuit appears to have gotten it right... and even did so with a judge-made doctrine. Poor Bill Gates!

  Under the Patent Act, a patent is presumed valid unless challenged with sufficient evidence. The question that the Act does not answer, though, is fairly important: How much evidence is sufficient to invalidate a patent that has been granted? The Federal Circuit decided some time back that § 282 requires a challenger to present "clear and convincing" evidence of invalidity, not just a "preponderence" (the normal civil standard of proof, "more probable than not"). Micro$oft got sued for a conceptually ridiculous patent that had nonetheless been granted for

  an improved method for editing computer documents, which stores a document’s content separately from the metacodes asso ciated with the document’s structure

  Microsoft Corp. v. i4i LP, No. 10–290 (09 Jun 2011), slip op. at 4 — that is, a patent that covers editing XML files. The Supreme Court held that the Federal Circuit's importation of a century of judge-made doctrine regarding the proper standard of proof necessary to invalidate an issued patent was correct.

  Of course, this does not go to the propriety of the patent in the first place... but that issue was not before the Court. This is an excellent example of why most software patents are conceptually inappropriate. Micro$oft's alternative argument (that the evidence it presented that was not made available to the Patent and Trademark Office when the patent was issued should have been used at a lower standard of proof) does not quite grapple with that problem. Then, Micro$oft holds more than a few software patents itself, and winning this particular lawsuit at the cost of invalidating its own patent portfolio would have been a Pyrrhic victory at best.

• In contrast to my griping of a couple days ago about the GBS panel, the IPKat has announced a panel with a broad spectrum of views and constituencies to debate Do We Come to Bury Copyright or to Praise It? Unfortunately, that presentation will be taking place across the Pond at a time that I'm tied up even if I was willing (and able) to travel, so we'll have to rely upon feline reports.

Labels: intellectual property, jurisprudence, politics, publishing

link to: 19:01 [GMT-6]

GBS: A "Fair and Balanced" Discussion...

 

...well, not really.

On 15 June, George Washington University School of Law is hosting a panel entitled "Can the Google Book Settlement Be Fixed?". Leaving aside that the title fails to ask a fundamental prerequisite question — should it be fixed? — I feel compelled to point out the ridiculous construction of the panel. In alphabetical order:

• Jonathan Band (Jonathan Band, PLLC) — an adjunct professor at Georgetown University Law Center, whose "clients include Internet companies, providers of information technology, universities, and library associations" (but not, apparently, creators of copyrighted works or other individuals).
• William Cavanaugh (Patterson Belknap, formerly with the U.S. Department of Justice) — "directly supervised" the Antitrust Division's work on its objection to the GBS, but has no experience with individual creators and now works for a firm that represents antitrust defendants (many in the medical area)
• Michael Guzman (Kellogg, Huber) — a litigator whose focus appears to be on the constitutional limits of government action; his firm represents major telecommunications providers
• Hadrian Katz (Arnold & Porter) — a patent/computer law litigator who almost always represents large computer companies
• Daphne Keller (Google) — represents a party, and has no verifiable experience representing individual creators of copyrighted works
• Lateef Mtima (Howard University) — a respected scholar on some of the ugly economic underside of intellectual property... as it affects end-users
• Marybeth Peters (formerly Register of Copyrights) — has no experience representing, and precious little working with, individual creators
• Randal Picker (University of Chicago Law School) — a respected scholar in antitrust and bankruptcy matters who also works around the technology end of intellectual property law (which, admittedly, fits in well with antitrust and bankruptcy!)
• Richard Pierce (George Washington University Law School) — a scholar on administrative law and the limits of government intervention, and I have no idea why he's on this panel except (perhaps) as a moderator
• Jule Sigall (Microsoft) — formerly the Associate Register of Copyright and now represents a corporate objector to the settlement; has no experience with individual creators, and was one of the principal drafters of the narrow-minded, largely anti-creator Orphan Works Report; long an advocate of "one size fits all" solutions, and to hell with the consequences for anyone at the boundaries
• Charles S. Sims (Proskauer Rose) — a former ACLU litigator whose client list includes the motion-picture and recording industries, Lexis-Nexis, the Association of American Publishers (a not-quite-party in the GBS litigation), and the petitioners in the Muchnick matter
• Roger Trangsrud (George Washington University Law School) — a respected civil litigation scholar (with whom I have a few disagreements on some obscure doctrine) who practiced at Hogan & Hartson before going to academia... a large firm that probably has represented as many as a dozen individuals (outside of white-collar-crime defense) in the last two decades
• Brian Wolfman (Georgetown University Law Center) — a civil litigation scholar (I'm not that familiar with his work) with a preacademic career working primarily for Public Citizen and similar organizations

The closest thing that the people who actually create copyrightable works — that is, individual authors — have on this panel is perhaps Mr Sims (although he has an actual conflict for this matter) or perhaps Professor Mtima (although his scholarship hints at a user-oriented focus). Perhaps someone will surprise us all, but my initial impression remains: Fair and balanced presentation my ass. That's not to say that nobody should have an opinion on the GBS, or that nobody should support anything approaching a wide-scope resolution; it is only to say that having nobody there to speak for the individual creators seriously undercuts the panel's credibility.

Bluntly, there's a huge difference between the interests of the various organizations involved in this dispute and the interests of the individual creators. For example, the antitrust scrutiny has almost entirely concentrated on price-discrimination potential concerning end-users of the works in question; in fact, the DoJ's brief never got outside of that particular antitrust box. There's a huge question of monopsony that has gone unremarked-upon, though: The effect of an artificially limited market on a large population of suppliers. It's fairly easy to demonstrate (ok, easy after following a few Markov chains) that this leads to homogenized output and commodity pricing... which is entirely inconsistent with the Constitutional imprecation for "Progress in the useful Arts and Sciences."

And that initial question — whether the settlement should be "fixed" — is a fairly important one. Further, the reasoning justifying it would tell us a lot about how (and how not) to do so.

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

link to: 11:50 [GMT-6]

Just Another Monday Batch of Link Sausages

 

• The biggest barrier to ebookstores truly replacing brick-and-mortar bookstores is a simple one: "If it's on the 'net, it must be free", which isn't unique to music at all.
• Chicken or egg? Cable news or collapse of newspapers? Public disdain or ideological propaganda? The key concern is this: Does knowing "which came first" matter, either in understanding the result or preventing similar results in the future? Or, to put it another way: Bread or circuses?
• The Supreme Court is getting into its busy season, releasing end-of-term opinions. None of today's opinions will be particularly earth-shaking... except for one, and that only by implication. In Stanford v. Roche Pharmaceuticals, No. 09–1159 (06 June 2011) (PDF), six justices agreed that the Bayh-Dole Act does not automatically assign patents arising from US-government-funded research to the US government, regardless of what other agreements might (or might not) say. This seems a relatively uncontroversial proposition... until one delves into the who, the what, the why, and the how of the case. There are two critical reasons that the dissent has by far the better of the argument, particularly since it is dissenting due to an incomplete record. First, if one looks at the factual context, a maker of a tool demanded a patent assignment for anyone who didn't just improve that tool (which would be proper), but for anyone who used that tool in achieving another purpose (which is questionable under both the Patent Act itself and the Intellectual Property Clause). To say the least, that's inconsistent with the concept of fair use in copyright, with the research exception in patent law, and with the expression/idea dichotomy at the core of the Intellectual Property Clause. Second, there's a personnel issue... because the only two Justices with any real pre-judiciary expertise in intellectual property were the dissenters.

  Stanford is far from the end of the world doctrinally; it is, admittedly, very much at the edge. I do approve of one aspect of the majority's decision, though: The implicit disdain for Congressional drafting skills (slip op. at 8–9). I would have been much more explicit in that criticism; but then, I have much less problem with imagining that such criticism would not lead to a crisis between two branches of government, as it never has before.

• Two descendants of Plessy and Ferguson can join to promote racial equality. Perhaps there's hope for humanity yet.

Labels: civil rights, intellectual property, jurisprudence, mass media, politics, publishing

link to: 14:36 [GMT-6]

Just-Before-the-Weekend Update

 

Our top story this afternoon: Generalissimo Francisco Franco is still dead. In other news of concern to writers:

• Borders bankruptcy hearing: To nobody's surprise at all, Judge Glenn agreed at yesterday's hearing to grant Borders a 120-day extension of its exclusive right to present a reorganization plan (order, Doc. 966; opinion, Doc. 969, both PDF). What is most disturbing about this proceeding — as is increasingly clear from the tenor of Judge Glenn's various rulings and opinions, and is required by the Bankruptcy Code (so don't get the idea that I'm criticizing his judgment or anything like that) — is that the parties who are most held hostage by this situation have exactly zero representation on the Creditors' Committee. That's right: There is no author/artist/musician/etc. representation on the Committee, because the direct creditors are the publishers/distributors/record labels/etc. In more high-falutin' terms, licensors have no right to speak, because it is presumed that the licensees will adequately protect the licensors' interests.

  Now that you're finished laughing, let's go on to another bit of non-news...

• GBS proceedings: Nothing happened at Wednesday's hearing. The parties asked for more time; Judge Chin granted more time; and the smoke-filled rooms will be abuzz with dealmaking until the next hearing, currently scheduled for 1000 on 19 July 2011.
• I'm still mulling over some indirectly important decisions, such as the patent decision from the Supreme Court earlier this week that will have a large potential effect on both copyright piracy and fair-use determinations. However, that's definitely for another time and forum; a blawg is ill-suited to sophisticated legal argument, and each of these cases is going to get into questions of cross-statute borrowing of reasoning.
• Finally, literary agents are still neither licensed nor regulated. If they had been, a current brouhaha would not be occurring (and SFWA members, among others, know exactly what I'm talking about).

This just in: Osama bin Laden is still dead.

Labels: copyright, intellectual property, internet, publishing

link to: 12:16 [GMT-6]

I Can't Make "Link Sausages" Rhyme With "June"

 

• Congratulations to Maria Pallante, the new Register of Copyrights of the United States.
• I wonder if they get airline miles? Not too bad for a camel, all things considered. (Yes, I'm thinking dark thoughts about how the demands of the defense and intelligence communities — which generally remain unrevealed and undiscussed — affected the shuttle's design in ways that possibly led to one of the two fatal mishaps.)
• A quick Borders bankruptcy update, of the nothing-to-see-here-citizens-back-to-your-lives variety: In a shocking, shocking development (which is to say that it occurs in over 90% of non-prepackaged Chapter 11 proceedings involving more than $50 million in debts, indicating that there's something wrong with the Bankruptcy Code and Rules), Borders has asked for more time to submit its reorganization plan (Doc. 864, 19 May 2011 (PDF)). Naturally enough, the committee of creditors — on which, as a reminder, the publishers (the raison d'etre for a bookstore) are distinctly minority interests — objected (Doc. 920, 26 May 2011 (PDF)), and Borders has filed an almost pro forma/mass-produced reply (Doc. 944, 31 May 2011 (PDF)) supporting its request. This, among a number of other pending motions, will be heard tomorrow (Thursday, 02 June)... and for all of the excitement and breathlessness, none of these motions really matters.

  The fundamental problem with Borders — and, indeed, almost all retail-sector bankruptcies, whether they're selling books or boots and damned near anything else — remains the legacy of managerial incompetence that got the respective retailer into bankruptcy in the first place. That this legacy is only reinforced by the idiocy of American "business degree" distortions and financial-market speculation shouldn't really surprise anyone. That it occurs related to the publishing/entertainment industry (for which what is "taught", when it is taught at all, is even less based on replicable data) should be even less of a surprise. In short, these convoluted proceedings are an almost inevitable result of:

  Data(garbage) ∩ Analysis(garbage) ≡ Garbage

  not just "garbage in, garbage out," but "garbage data fed through garbage analysis is exactly equivalent to garbage. Since we're dealing with publishing, substitute the digestive biproduct of male cattle for mere "garbage," and we're getting somewhere...

• A profile of one of my favorite streets entirely neglects its character and appearance after dark... especially during the 1970s and 1980s <vbeg>.
• Football of most kinds is in strife world-wide at the moment. Rugby can't even agree on rules of the game, and I don't mean just whether it takes one foot inbounds or two feet inbounds to complete a forward pass. Speaking of forward passes, consider the NFL labor dispute and the schadenfreude of watching the arrogance of The Ohio State University reap what it has sowed. And real football — that is, the only form of the game in which playing the ball with the feet is the primary means of everything (well, except for Australian Rules, but even that mostly resembles rugby) — is nearly as corrupt as Chicago politics. I'd advise Herr Blatter, who has proclaimed himself the captain of the S.S. Minnow Good Ship FIFA, to become familiar with a world-wide concept exemplified in U.S. law in Article 110 of the UCMJ:

  Improper Hazarding of a Vessel (codified at 10 U.S.C. § 910)

  (a) Any person subject to this chapter who willfully and wrongfully hazards or suffers to be hazarded any vessel of the armed forces shall suffer death or such other punishment as a court-martial may direct.

  (b) Any person subject to this chapter who negligently hazards or suffers to be hazarded any vessel of the armed forces shall be punished as a court-martial may direct.

  If, that is, I was forced to give him advice; I wouldn't do so voluntarily, and I think Article 110(a) prescribes too good a fate for him (and, for that matter, for the entire damned FIFA Executive Committee).

  Football-governing authorities worldwide appear to have neglected placing the foot to the ball in favor of placing the foot in the mouth.

Labels: copyright, culture, jurisprudence, politics, publishing, sport