link to: 13:38 [GMT-6]

• The Force is not with George Lucas. It is, instead, with Brainerd Currie. And now, US-based fen trying to get authentic (as in "cast from the original mould") Imperial Stormtrooper helmets will have to go to England to get them. Maybe.

  The Supreme Court of the United Kingdom issued its ruling in Lucasfilm Ltd. v. Ainsworth, 2011 UKSC 39 (27 Jul 2011) (PDF), this morning. Lucasfilm sought to enjoin the UK-based craftsman who created the original Stormtrooper helmet design and mould for the film from various descriptions and drawings (and took the mould with him at the conclusion of principal photography) from making replicas using that mould and selling them without a license from Lucasfilm. Lucasfilm pointed to a US-court copyright decision holding that the helmet design was a protected, copyrightable aspect of the films as a whole, and enjoining sale in the US. The UK Supreme Court held, though, that under the UK's 1988 Act, the useful ("utiliarian") aspect of the helmets, together with the numbers of them created for the film (which only emphasized the utilitarian purpose), overcame any UK law copyright claim. Id., ¶¶ 42–49.

  But that is where Brainerd Currie, the Sith Lord of Choice of Law, comes into play. The more-interesting question is whether the UK courts should, instead, have used US law... and merely applied the fully litigated US result against the UK-resident Ainsworth. OK, it's more interesting to civil procedure geeks like me, anyway... even though it should be more interesting to authors, too, for many of the same reasons that US-based authors need to be concerned with UK-based libel law, as I've discussed here ad nauseum. Here, the UK Supreme Court reached what is probably the right result, but for very much the wrong reasons (and reasons that will ultimately only add to the confusion). It held that the UK court could, and perhaps should, have heard Lucasfilm's claim for enforcement of the US copyright (and presumably domesticated the judgment). Id., ¶¶ 105–09. It did so, however, by a rather tortured expedition through precedent without a theoretical basis — the theoretical basis that would be provided by the powers of the Force, or at least of Currie's interest analysis. The ultimate problem with the UK Supreme Court's decision is that it leaves far too much open, even in this case; the judgment does not tell the litigants what the effect of its split decision is on the litigation in question, let alone on broader issues!

  So, where does that leave us? Waiting, I'm afraid, for a Jedi Knight wielding a working lightsaber to cut a rather Gordian knot. The only winners here — as usual — are the lawyers; it remains unclear whether, for example, whether a UK artist who created arms and armor for the Knight of Flowers (The Game of Thrones) solely from the text of the book, without reference to the TV production, could be correctly sued in a UK court for violating either US or UK copyright law in creating a derivative work. And that's before one considers remedies such as damages as a remaining issue. In short, just like the first Star Wars film, this ultimately decided nothing; there will be at least two sequels, and — given the appallingly poor writing endemic in law and reflected in this morning's decision — the dark menace of a potential prequel trilogy. In 3D.

• Netflix is demonstrating what I've argued for a couple of decades now: That the best way to deal with piracy of copyrighted materials is to offer them cheaply, conveniently, individually, and in better quality than the pirates, so that the premium for the quality seems a bargain. Bluntly, this is also the best argument against "tiered" cable TV plans that force someone who wants, say, ESPN, ESPN2, AMC, USA, TNT, and Comedy Central only to also "buy" Fox News, CBN, MTV, CMTV, and a host of other channels that are never, ever watched (and even locked out of one's own remote...). Not that that's a hypothetical or anything like that. In short, "bundling" needs to be for artistic reasons (such as the foolishness of buying individual songs from a fully integrated concept album), not for commercial advantage (such as the "bonus tracks" on the reissue of that particular concept album).
• And that's especially relevant if the products in question are distinguished only by their packaging, not their content. The publishing industry needs a 2x4 to the head on its pricing, availability, and format decisions, and the marketplace is the only possible source of that 2x4. Perhaps the industry should just go to a few public libraries west of the Hudson for a hint of what it is missing...

  And bribing African nations to adopt your textbooks is no solution, either.

• If you're going to write a book review in England, get your facts straight... or you might lose a libel suit. For a book review. There are no winners here...
• And in the most important purely literary news of the day (with a nod, again, across the Pond to the original), I point to the "winners" of the 2011 Bulwer-Lytton contest, which are "winners" like Charlie Sheen is. And, perhaps fortunately, the contest is open only to "fiction"; otherwise, the winners would all be from legal documents, and even judicial orders!

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

link to: 12:54 [GMT-6]

• Borders Bankruptcy Update: Books-a-Million has pulled out of its partial purchase arrangement and option. This is not entirely surprising, although it is somewhat disappointing. What this means is that those thirty-odd Borders locations that appeared to have been granted a reprieve are going to close after all. What this means for proposed purchase(s) of Barnes & Noble is another thing entirely, especially since people are talking about "synergy this" and "synergy that" regarding potential purchasers... and those of us with medium-term memories have some idea of the pitfalls that raises.
• The 1709 Blog deserves a far-wider readership than it gets, because it provides excellent analysis of copyright issues from a European perspective that Americans just usually don't consider or comprehend. For example, consider this cogent analysis of trademark versus copyright protection for characters and settings, or a report on a colloquy with an actual creator of intellectual property about piracy. And unlike most lawyers, Dr Phillips does not consider the English language merely a platform for pontification. Recommended for authors, even those without law degrees.
• I am not at all amazed by the fight between the center and the right over the US debt ceiling and government spending. I've known from the beginning that Obama is no liberal; he's a centrist with some liberal impulses. So it looks like we'll have a bad alternative imposed on us by an unelected dictator... because I sure as hell had no say over who the next Speaker would be in the last election, given that I live in a rotten borough.

Labels: culture, internet, politics, publishing

link to: 11:09 [GMT-6]

The demise of Borders is far from unexpected. The initial bankruptcy filing demonstrated all of the seeds of it — including, but not limited to, well-above-average-interest-rate terms offered for debtor-in-possession financing. There remain a few issues to consider, as lessons learned in general and for authors/publishers/those who give a rat's ass about books, that are sneaking under the radar.

The first, and perhaps most obvious, is that books are not boxes of macaroni and cheese... and that whatever "brand loyalty" exists in publishing is not to the publisher(s), but to authors. This is the real problem with management in both publishing and in distribution today. If one actually looks at the data and mathematical models behind everything that gets taught in American business schools; and that gets taught to and imposed upon financiers; and that underlies virtually every successful derivative securities lawsuit — it is the struggle over fungibility. Because dealing with fungibility is something that can be mathematically modelled, and therefore is (at least somewhat) reproducible, that's what gets published, and taught, and imposed as internal standards, and imposed as "behavior of a prudent investor or author." And, of course, that is the very opposite of the definition of "art" or "culture" or "literature" or "authorship"... or, in a more general sense, "intellectual property." The entire point of "intellectual property" as a meme is that individual pieces of IP are not fungible, and that copies of those individual pieces of IP are only partially fungible in that the pieces must maintain an identical fit. In short, the Borders failure is almost entirely the fault of "efficiency" as a measure of managerial competence, acceptability... and access to finance and markets.

A second issue is the unstated presumptions built into the bankruptcy system in favor of interests in real property over just about everyone else. The impact of the landlords on this mess is obvious when comparing the anticipated return from sale of inventory and the amount that would return to the vendors (my back-of-the-envelope calculations indicate it would be between 70 and 80 percent), even after allowing for payment of nonmanagerial employees, and the estimated total return of around 22 percent to all creditors. And, sadly, this isn't just the physical-property landlords; it also includes landlocked tax authorities, utilities, etc. Lurking behind all of this is the assumption that returns from ownership of real property interests must always increase over time, even in declining economic circumstances. Once again, exploring the data sets and the math actually used to manipulate those data sets becomes extremely interesting, particularly in light of "too big to fail" presumptions (more formally, diseconomies of scale).

Geography also plays a side role in this, strongly related to (but independent from) the role of real-property interests. The physical distance between Ann Arbor, Michigan (Borders' longtime headquarters) and Dallas, Texas, is greater than that between Paris and Moscow physically, and about the same culturally. There's a reason that Books-a-Million is being so careful about not expanding too far beyond its southeastern-US base for those stores it is buying/considering buying, with a couple of exceptions as possible brand-name footholds: BAMM's management is smart enough to know that it doesn't know market conditions (or landlord assumptions, or damned near anything else) more than a comfortable day's drive from its headquarters... that is, the distance from Paris to Berlin.¹ When Borders was a successful chain, its locations were within a day's drive of its headquarters in Ann Arbor; indeed, few of its locations were more than a day's drive from each other. That compactness led to certain distributional efficiencies that management assumed would continue as the chain expanded beyond that, for lack of a better term, event horizon... so that management really did need to be worried about whether what "played in Peoria" would make for the appropriate stocking decisions in New York. Or Los Angeles. Or Seattle.²

Last, for now, and far from least, is the cultural disjuncture between decisionmakers inside of publishing and its distribution arms and its potential/actual customer base. This is epitomized by the whitewashing problem that I've discussed here several times before. Put as baldly as I can, it really doesn't matter how much interest one can generate among one's culturally-homogeneous peers inside the industry and inside the distribution channels; what matters is interest among the people actually putting their money on the line for it. An example from Borders' history might help understand this. In the early 1990s, I was stationed in Washington, DC, and frequently shopped at a Borders on Rockville Pike. This particular store was staffed with intelligent book people who not only knew their stock, but had at least some familiarity with what was not in stock but otherwise available. I visited the same store again a few years later, after the Kmart takeover, and noted the severe changes. The military affairs section had shrunk (in DC!) in favor of a considerably larger generic-romance section, and similarly for politics/current events giving space away to celebrity/memoirs; the staff seemed as if it would have been more comfortable asking if I wanted fries with my order; and so on. In short, it had become an outlet, not a store. And I, with my personal library and general book acquisitiveness, am precisely the customer that a bookstore should want to appeal to. Borders didn't; and their loss became... their loss.

1. Or, as is historically more common, the other direction, with tanks/cavalry.
2. Management — particularly management installed by Kmart and later by those from that culture — didn't worry about these things. Once again, the fate of Kmart itself made this entirely predictable... as does the saga of Martha Stewart, cobranding, outsourcing, and so on, but that's for another time (however applicable it is to publishing with the J___ P_____n phenomenon, since the industry learned nothing from F____ W. D___n.).

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

link to: 15:39 [GMT-6]

• My favorite from this list of "medical benefits" is Harry Potter Casts a Spell on Accident-Prone Children. I think someone at the Trib spent too much time surfing on the 'net yesterday to avoid going outside during the heat wave... not that I'd ever do anything like that.
• The grievously underconsidered IP Finance Blog offers this fascinating perspective on handling US IP licensees in bankruptcy. I can't imagine what current news item makes me think that's relevant right now...
• I will be reacting to the Borders situation tomorrow, after the judge rules on pending conversion motions. It is entirely possible — indeed, it is more probable than not — that certain aspects of the proposed "liquidation sale" that have thus far been publicized will change, and change significantly. For one thing, the docket (as of this morning) still showed this case as a Chapter 11 (reorganization) case, not a Chapter 7 (liquidation) case... and the sale cannot go forward for "all or substantially all assets of the debtor" without judicial approval and conversion.
• Similarly, I'm not going to proclaim much about the rather abortive status hearing in the Google Books matter; there just isn't enough data. The parties claim to be working on an opt-in class settlement proposal... but that's not likely to proceed without other significant changes that have been punted by the various parties. Admittedly, they're still negotiating, so there's at least a tiny excuse for keeping quiet. However, it wasn't just opt-out that Judge Chin objected to; he merely said that would have been enough by itself for him to reject the settlement. As I've noted previously, the failure of adequate representation was also enough, even though he didn't emphasize it; the antitrust objections would probably have been enough, although his discussion of them was more an outline of undecided issues than anything else; and so on.

  The key point is that if the parties put another settlement proposal on the table, there will be another round of solicitation of authors (and estates, etc.)... and it's going to confuse the hell out of a lot of people. I'll do my best to help people ask intelligently for advice concerning their individual situations, but that's not a solicitation — not the least due to potential conflicts of interest!

• A Harvard student studying ethics has been indicted for hacking into, then massively pirating, JSTOR's academic journal database. Leaving aside the multilevel irony of "Harvard," "ethics," and "piracy," there's another issue here: The presumption that the journals that are on JSTOR are, in fact, the proper permission-granting parties under Tasini. Now, as it happens, I generally like JSTOR; the fact that its downloads are image files that preserve pagination helps those of us in anally-retentive fields that demand excrutiatingly precise pinpoint citation, even it if does require a quick trip through OCR for extended quotations and makes the individual articles nonsearchable. I also strongly suspect that the limited range of JSTOR itself largely means that the authors really do want the continuing availability of/publicity for their works, and are generally not seeking further compensation. That, however, is only a default assumption... and, as footnote 6 of Tasini tells us:

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

  New York Times Co., Inc. v. Tasini, 533 U.S. 483, 497–98 n.6 (2001).

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

link to: 13:24 [GMT-6]

• I'm meaner than Andrew Wylie. And I'm going to prove it.

  An article at The Bookseller recounts, sans details of any kind, what HarperCollins — the bound-volume-publishing outpost of Mordor NewsCorp — claims is a "crude attempt to link a business disagreement with more serious matters." Well, I'm not as circumspect as is Mr Wylie for a very simple reason: My involvement with HC of late has been as a consultant to people trying to bridge the gap between a sale in principle and a contract, not as a sales agent implicitly dependent upon HC as a substantial part of the market (an oligopsonist, if you will). And, therefore, I will name two (of several) issues in HC's more-recent trade fiction contract offers and negotiation postures that justify a substantial inquiry into HC:

  1. Inferable collusion in electronic publishing demands and terms. It's absolutely amazing that the major trade publishers — and even the minor trade publishers — have all rushed toward a nice-round-number 25% royalty based on net for e-books (which are now an essentially non-negotiable part of a print publication offer). Given the vastly different cost structures, distribution strengths, subject matter involved, etc., it defies belief that there has been such a rapid convergence — not to mention refusal to compete on price — among publishers absent collusion beyond mere "conscious parallelism" (except, perhaps, the kind of competition that Harlequin is offering). That's ordinarily a per se antitrust violation. Combine this with refusal to even respond to inquiries and demands for reversion for books signed before electronic rights were explicitly included in contracts, and there's sufficient justification in hand for an antitrust inquiry.
  2. Strong-arm demands for turnover of authors' intellectual property. In substance, one of HC's increasingly restrictive demands of late has been that authors not publish under their own names (or other choices of marks) with other publishers during the term of any contract with HC. This essentially forces turnover of the goodwill in the author's mark (his/her authorial name) to HC for no additional compensation. Further, it also acts to unfairly and unduly restrict competition for an author's services in a way reminiscent of, albeit not so formal as, the old H'wood "studio system" for actors and screenwriters. Given that the operative features of the "studio system" were ruled a per se antitrust violation, my perspective on this being transferred to the inherently less-collaboration-necessary print publishing industry shouldn't surprise anyone.

  Over to you, minions of Sauron.

• In some news from publishing that brings me substantial schadenfreude, there are more than hypothetical rumblings that textbook publishing as we know it is under threat. The only surprise is that this is coming from a unit of Holtzbrinck (the ultimate parent of Nature)... given the malign influence of the entrenched textbook-publishing management there upon trade contracts offered by other units of Holtzbrinck.
• Here's an alternate view of A Dance With Dragons. Don't blame me for your keyboard or screen damage. Or hiccuping fits.
• The UK casualties of NewsCorp keep increasing (see item 1): The Superintendent of Scotland Yard and a senior assistant; the arrest of Rebekah Brooks; a dead reporter; probably a lot more that we haven't heard about. It's rather ironic, though, that the Murdoch family seems to be entitled to so much power without having demonstrated the capability to wield it at all — let alone appropriately — given Rupert Murdoch's own continuous lashings-out against inherited privilege, particularly during his early days (again, see item 1).

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

link to: 11:19 [GMT-6]

• The forces of Sauron Murdoch's falangista media empire subsidiaries have withdrawn their bid for the UK's largest satellite-TV vendor under continued pressure from the wiretapping scandal at the for-now-defunct News of the World. There's no word yet, though, whether the nepotism/dynasticism of Murdoch's son running the UK things, or for that matter Rebekah Brooks running things for Murdoch's son (and it's still unclear as to why... particularly based upon performance of her responsibilities earlier), will be rejected unless criminal charges get filed at least naming James Murdoch as an unindicted coconspirator. Of course, this also short-circuits the referral to the antitrust authorities, which was probably the main intent.
• Here's further proof that marketing dorks just don't get it... or perhaps they do, and this is just a marketing effort to keep people from realizing it. A blog linked from the almost-always-ignorant PW homepage claims that there are five essential steps to marketing revealed by the success of the Harry Potter books:
  1. Develop a Strategic Approach
  2. Viral Marketing
  3. Multi-Channel Approach
  4. Play Off Your Audience's Personality
  5. Create a Distinct Brand

  Rachel Sprung, "5 Marketing Lessons from Harry Potter," Hubspot (12 Jul 2011). This is utter bullshit. For one thing, the Harry Potter work that began it all (HP and the Philosopher's Stone) predates all of these "efforts"... and was an astounding success, by the standards of mid- to late-1990s YA/children's fiction, well before any of these purported principles was "applied" to it. More importantly, though, there's a critical element entirely missing from the list that is far more important than any marketingspeak bullshit:

  0. Create a Distinctive (and Preferably High Quality) Product for an Underserved Market... and Know What You're Selling

  It's not too difficult to see that the HP imitators — almost all of which have followed some variation on Ms Sprung's advice — have failed to dislodge HP from its primacy (and, indeed, made rather few inroads against its dominance) primarily because, well, they're largely garbage. Harry Potter is not Shakespearean in some timeless highbrow manner... but it's not competing in the market for Shakespeare, either, and it might as well be when compared to some of its successors (and you know who you are; and, conversely, you know who you aren't, too). Further, it didn't need to be Shakespeare in the vast wasteland of YA/children's fiction in the 1990s; it only needed to not be Edward Bulwer-Lytton or James Fenimore Cooper.

  The problem with the meme that "selling iceboxes to Eskimos" is the mark of a great salescreature is that it neglects the necessary judgment on what to sell in the first place. I'd choose to sell high-quality portable heaters to that market; Ms Sprung, however — and those of her ilk — would rather pretend that what one orders for one's inventory should, or does, have little to no effect on the means one uses to sell it. This is even more important when one is dealing with creative works rather than commodities; but then, unlike marketing dorks, I understand basic thermodynamics, so I do not see marketing efforts as frictionless/costless to the system.

• The UK Supreme Court has ruled that there is no common-law extension available to intelligence agencies to keep their devious doings out of court proceedings — they are instead limited to what Parliament provides. Al Rawi v. Security Service, No. 2010–107 (13 Jul 2011) (PDF). On the one hand, this is a good thing, particularly for those claiming compensation for mistreatment (particularly, but not only, at Gitmo under George III). On the other hand, it does not have a constitutional backup in the same way that an equivalent ruling would have been written in the US... meaning, in turn, that the dark and devious methods of Parliament can silently, thoroughly, and permanently undercut this reaffirmation of some pretty basic rights.
• There's a call for papers for a special issue of the Journal of Hate Studies. I'm sure it's a serious academic enterprise; to begin with, consider all of the "hate crime statutes" and the problems of "hate speech" and so on. But, returning to the first sausage on the platter, wouldn't it just be easier to have a special issue on Fox News ("We bleach, starch, and press your brain — you decide") and/or the Tea Party and/or the currently declared GOP candidates for President? So far as I've been able to determine, "hate" is all any of them have to offer... and a special academic issue dissecting that hatred would be more than a little bit entertaining.

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

link to: 10:42 [GMT-6]

• In something that sounds like it's from an actual episode, a Doctor Who LARPer caused a bomb scare in downtown Chicago with a LARP (that is, fake) bomb. On the one hand, in this era of Mystery Security Theater 2001, just how stupid do you have to be to use a semirealistic looking mockup of a bomb as a game prop? On the other hand, it was Mystery Security Theater 2001...
• The legitimacy (or not) of fan faction has nothing whatsoever to do with pregnancy... that is, in the sense of logic. I am sick to death of both "sides" on the issue failing the part of Philosophy 101 that covers the fallacy of the false dilemma. One of the latest to do so is Lev Grossman:

  You can see both sides of the issue. Do characters belong to the person who created them? Or to the fans who love them so passionately that they spend their nights and weekends laboring to extend those characters' lives, for free? There's a division here, a geological fault line, that looks small on the surface but runs deep into our culture, and the tectonic plates are only moving farther apart. Is art about making up new things or about transforming the raw material that's out there? Cutting, pasting, sampling, remixing and mashing up have become mainstream modes of cultural expression, and fan fiction is part of that. It challenges just about everything we thought we knew about art and creativity.

  "The Boy Who Lived Forever," Time (07 Jul 2011).

  This is a remarkably ignorant piece of bullshit from someone who did graduate work in English at Yale. Leaving aside the logic problems — not just the false dilemma, but the presumption that "ownership" means "inviolable" — doesn't he recall any truly basic literary theory?¹ Just because our courts have (mistakenly) conflated so much into "property" as part of the centuries-long trend rejecting equity as a foundational aspect of law doesn't mean that literature and the arts must make the same error! Ultimately, the problem with fan fiction is not "ownership" or "infringement," but "undue interference" — an explicitly equitable concept that requires applying judgment to particular (and changing) factual circumstances. This, however, does not lend itself well to creating bright-line rules... which is precisely why the concept has been rejected by most of the players in this little immorality play. Hint: Easy cases (and rules) make more bad law (and behavior) than do hard ones.

• Without further comment, consider "Johnson"'s evaluation of the NSA's style guide and what it implies about the miscommunications coming from the appointive parts of the Executive Branch, particularly when trying to deflect attention from mistakes.
• The IP Finance Blog has carried a number of interesting pieces of late that focus on patent law, but have interesting/disturbing implications for copyright. In particular, authors should read this nontechnical discussion of royalty capping and ponder whether it works based on what has happened with electronic display rights...
• For those of you who think that any solution to the Google Books problem will necessarily involve a collecting agency, which (in turn) will benefit authors, one need not delve into the dubious accounting at ASCAP, and BMI, and the CCC, and their excessive agency costs; instead, just look at Spain for the most-likely result.

1. In alphabetical order by author, the following truly basic book-length works each — in their own ways — pretty definitively refute Grossman's glib assertions: Erich Auerbach, Mimesis: The Representation of Reality in Western Literature (1953); Harold Bloom, The Anxiety of Influence: A Theory of Poetry (1973); Wayne C. Booth, A Rhetoric of Irony (1975). Particularly given the overt (and largely malign) influence of Professor Bloom on the entire graduate literature program at the institution Grossman attended, I find this more than a bit troubling... without even considering all of the much-shorter articles that make the same point(s) even more, well, pointedly.

Labels: copyright, culture, intellectual property

link to: 13:08 [GMT-6]

• One of the problems of public discourse in the US is declarations that a particular proposed or actual government action (or even inaction) is "unconstitutional" as a means of shaming its advocates. Part of the problem is simply the nature of political struggle among various interest groups whose only weapon is rhetoric. However, there's a more fundamental problem caused by the lack of civics education, as Justice O'Connor has decried since long before her "retirement" from the Supreme Court. In its simplest terms:

  "Unconstitutional" means "prohibited means or goal for the government," not "stupid or self-defeating."

  Unfortunately, very few commentators — including several leading constitutional scholars — are making the distinction between "stupid and self-defeating because it's paralyzing" and "unconstitutional because it's a prohibited means or goal for government" in the rhetorical wars over the debt ceiling. The debt ceiling falls closely enough within a combination of the Commerce Clause and the Necessary and Proper Clause that — regardless of negative-spaces arguments based on the Fourteenth Amendment — it is not unconstitutional. It is, instead, stupid, self-defeating, and polemical self-aggrandizement for a mathematically- and evidentially-refuted version of Maxwell's Daemon applied to macroeconomics and partisan electioneering.

• Perhaps the ultimate in journalistic and cultural schadenfreude comes from watching the cynical closure of the Voice of Sauron Rupert Murdoch's leading instrument of class and partisan warfare, the so-called News of the World (which makes the US version that used to be sold at grocery-store checkouts, published by the National Enquirer, look a paragon of journalism even without considering the wiretapping problems). My sick and twisted mind wonders just what Rebekah Brooks has on some member of the Murdoch family that keeps her from being fired (audio); but then, I lived Over There for a number of years, so perhaps I'm not entirely off-base with those musings...
• If Xeno were formulating his paradox today, instead of worrying about reaching a tree, he'd be worrying about reaching an objectively verifiable, and clear, accounting statement. Leaving aside H'wood redefinitions of terms like "net profits" that, essentially, mean there won't be any, we can't even agree on basic accounting rules. This is more than mere technicality of interest only to those with green eyeshades; any difference in rules presents an opportunity for arbitrage... or, more to the point, claim inflation in bankruptcy.
• Like, for example, the Borders bankruptcy.

  There is a bid on the table to "S[ell] Substantially All of the Debtors' Assets Free and Clear of All Liens, Claims, Encumbrances and Interests and the Assumption and Assignment of Executory Contracts and Unexpired Leases" (Doc. 1130 (PDF), hearing set for 21 Jul 2011). In short, there's a deal on the table — which requires approval by the Bankruptcy Judge — to sell Borders as a going concern to an investor group, along with its stores, etc.

  Yay, stores! No more closings, right?

  Not so fast. A little bit of math will show that this is a very, very bad deal for authors and publishers... and, nonetheless, about the best that they can expect to get. At the proposed initial-bid sale price of $215 million, the new operator is proposing to acquire (Doc. 1130 at 12; all ellipses added and relate to technical identification of the purchaser):

  ... to acquire all assets of Debtors (other than Excluded Assets) including (i) real property leases and contracts to be designated ... for assumption and assignment, (ii) equipment and improvements in transferred stores and distribution centers, (iii) intellectual property, (iv) inventory other than inventory in stores for which the leases are not being assumed and assigned ... (the “Store Closing Locations”), (v) accounts receivable from sales of inventory, (vi) Debtors' equity interest in Kobo, Inc., (vii) goodwill of the Debtors, (viii) books, records, files, including customer lists, (ix) cash, (x) rights to direct the disposition of inventory at Store Closing Locations and receive the proceeds thereof and (xi) foreign franchisor rights.

  which becomes more comprehensible when compared to what is being excluded (id. at 12–13):

  Specifically excluded from Acquired Assets are...: (i) corporate and tax records of the Debtors, (ii) claims of Debtors relating to Excluded Assets or Excluded Liabilities, (iii) tax refunds, pre-payments, net operating losses and claims for the period prior to closing, (iv) capital stock of the Debtors and their subsidiaries (other than the Debtors' interest in Kobo, Inc.), (v) claims ... related to the Purchase Agreement; (vi) real property leases and contracts not assumed and assigned ...; (vii) equipment and leasehold improvements in Store Closing Locations, (viii) inventory located at Store Closing Locations, (ix) business licenses and permits that relate exclusively to the Debtors' headquarters building or to any Store Closing Location, (x) certain designated deposits, (xi) confidential personnel and medical records of employees who do not become employees ..., (xii) assets relating to Debtors' employee benefit plans, (xiii) avoidance actions, (xiv) assets sold or disposed of between the date of the Agreement through the Closing Date and (xv) certain other specified assets.

  The bad news for publishers — and therefore for authors — is that accounts payable are not directly disposed of. This means, in turn, that that $215 million (or whatever final sales price is actually approved by the Bankruptcy Court) would go into the common pool of money available to compensate everyone who has claims. That's not just the publishers, but the landlords, the utility companies, the employees, the tax authorities... and the professionals who are facilitating the bankruptcy process, who are actually in line before any of those other claimants. And, in some magical math that always seems (under either US or European accounting) to be validated at the final tally in multistate-retail-sector bankruptcies, over 80% of any increase in the amount received over $215 million (the initial bid) will go to those professionals for their roles in increasing the total value of the sale. Based on everything that has thus far been declared, back-of-the-envelope calculations indicate that publishers eventually will be receiving between 20 and 25% of what Borders owed them on the date of the bankruptcy filing. <SARCASM> But authors don't need to worry at all; there's no way that publishers would even consider trying to pass the loss of income on to authors, no matter what the authors' contracts say. </SARCASM>

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

link to: 10:57 [GMT-6]

• I'm simultaneously cringing and giving one of my famous gleeful about-to-eat-a-helpless-swimmer toothy smiles at the NotW wiretapping scandal in England — and its implications for doctrinaire libertarianism. I'm cringing because nobody deserves the kind of treatment that Rupert Murdoch's Sauron's pet and protege at least tolerated, and more probably encouraged — and, at minimum, was responsible for (like any senior leader) — that was given to potential "news items." The glee comes because this sort of thing demonstrates that the "enemy" that libertarianism should be focusing on is unaccountable accretions of power of any kind, not just government — and yet the doctrinaire libertarian forces are being silent on Sauron's empire because it doesn't bear the label of "government," while simultaneously ignoring both reality and the problem of the "company town."
• The Economist ponders the future of brick-and-mortar bookstores — oddly enough, without considering the economics of brick-and-mortar bookstores. Most people do not realize that, per square foot of retail space, new bookstores have more invested in inventory than any other retail sector except perhaps (and only perhaps) jewelry stores. In turn, that implies that a bookstore cannot rely upon commodity turnover as a long-term profit-making model; yet that is precisely what the "superstore" meme requires at its root. Whether Michael Dirda's (im)modest proposal regarding "bestseller lists" would have any effect is a question for another time.
• If you really want to know why TV and film have gotten less adventurous of late, just consider what they're not paying the writers. Unfortunately, if one delves into the depths of the figures, writers of comedy-through-stupidity works like typical TV sitcoms, though, seem to be doing just fine...
• When even Fortune expresses some disdain for monopsonists, however well hidden, perhaps there's hope. Naaah.
• One of the felines at the IPKat seems somewhat surprised at the impact of territoriality on e-reading devices (and may I suggest a good, free proxy anonymizer as a workaround?). Those who've discussed this with me know that I've advocated for over a dozen years now that in the long run, it's in an author's best interest to license world rights in each language, rather than territory-by-territory rights in each language... so long as the publisher is also obligated to report, account for, and pay for all sales worldwide as if they're in the home territory. Mr Wilkof's experience demonstrates why (and, not incidentally, links back to the first sausage on this platter, although it might take a bit of thought to see why).

Labels: internet, mass media, politics, publishing

link to: 11:50 [GMT-6]

(Continued from yesterday; the Monday link sausages are all destined for the barbecue as my kids do the Caucasian-American rain dance, since the vegetarian crawled out of the marinade again this year.)

Reflexiveness. Reflections (and refractions). Optical delusions and illusions and "Real America" and marketing wisdom. Yes, there is a reflected image still in that fun-house mirror that goes a long way toward explaining how this all fits together. It's not just the ends and means that have been improperly conflated by the intermediary classes; more damagingly, those intermediary classes really believe that their images in the fun-house mirrors represent not just themselves — that is, the intermediary classes — but the entire public, whether considered as a body politic or a body literate.⁷

One of the best examples of this phenomenon began bubbling up from the depths almost exactly forty years ago. Admittedly, things were a little bit different in mid-1971: The campaign for President of the United States was just beginning to get underway among the intermediary classes; nobody knew (yet) about Nixon's dirty tricks; and nobody had yet identified that the political wing of the intermediary class was no longer exclusively fifty-to-seventy-year-old white Protestant men. In short order, this resulted in the "Canuck letter" that knocked the candidate with the best chance of unseating Nixon out of the race... primarily due to an expansion of the intermediary class to include a younger demographic, which exploded at the 1972 Democratic National Convention and resulted in the extreme arrogance of the disastrous McGovern campaign and a subclass of intermediaries that still doesn't believe it lost the election.⁸

The Democratic Party leadership in 1972 became the model for today's intermediary class. Ironically in some ways — but entirely predictably to anyone who looks at actual voting and policy patterns in nation-states that suddenly change from nonrepresentative to representative governments, in particular those of Europe during the Age of Revolution (roughly 1785–1853) — the change from "smoke-filled back rooms" to "party primary elections" as the means of selecting candidates for major office has resulted in less-representative candidates for those major offices, particularly in linked tickets (usually President/Vice President and Governor/Lieutenant Governor, but sometimes extending to legislative posts, too). How else to explain Geraldine Ferraro, Dan Quayle, and Sarah Palin, and more other "ticket-balancing candidates" with little obvious qualification for the respective offices than I can count? This occurs largely because the intermediary class — for this purpose, party leadership and activists — honestly believes not just that the body politic should accept intermediary-class leadership and policy preferences... but that it already does, and just needs a little bit of sales to help it understand that it does. That is, the intermediary class believes that what it sees in the fun-house mirror isn't just the intermediary class, but "Real America."

Also in the 1970s. we began seeing much the same thing happening in various parts of the entertainment industry. In 1973, a major popular-music record label selected a new president from its marketing staff who had only a few months working in A&R (the then-equivalent of the editorial department at a publisher), and the news was all over the industry rags. Today, it's news when a label president is not either a marketing expert, the founder of the label (usually a "renegade" recording artist), or a manager for a recording artist. Similarly, in the early 1970s virtually all film- and TV-studio heads had substantial experience themselves as producers and executive producers; today, that is extremely rare. The publishing segment has certainly not escaped this trend, with both conglomerate presidents and those with the title of Publisher predominantly coming from the sales-and-marketing part of the business (PDF).

Of course, none of this is limited to party politics, nor the entertainment industry; recognition that "banking" is inherently not productive, but an intermediary, seems to have escaped most commentators who decry the loss of American manufacturing capacity and "good jobs for Real Americans." Where party politics and the entertainment make excessive influence of intermediaries even more dangerous, though, is in the outsourcing of the intermediaries. In politics, this is toward powerful private citizens outside of government, who are not accountable to either government or the citizenry, but nonetheless have inordinate influence over both policy and who gets to take up the banner as a "policymaker."⁹ In the entertainment industry — and in particular the publishing segment — this is toward the increasingly powerful indirect distribution segments. The big distributors and chain stores have inordinate power now... and, ultimately, are at the root of the whitewashing problem,¹⁰ and arguably at the root of the glass ceiling for editors.¹¹

Just like "the map is not the territory," "the intermediary is not the market" — whether it's a market of ideas or whatever. Too bad the intermediary class seems unable, or at least unwilling, to acknowledge that; it explains far too much about the Mad Tea Party, and about James Patterson, and about Danielle Steele, and...

7. Cf. Luigi Pirandello, Così è (se vi pare) (1917), sub. nom. Right You Are (If You Say You Are).
8. Id.; see also Benjamin Whorf, The Relation of Habitual Thought and Behavior to Language (1939).
9. See, e.g., Linda McQuaig & Neil Brooks, The Trouble with Billionaires (2010); The road to plutocracy, The Economist (blog entry 13 May 2011).
10. See C.E. Petit, CoverFail Revisited, Scrivener's Error (blog entry 10 May 2010).
11. Use of the gender-discrimination-charged term "glass ceiling" is with malice aforethought, particularly when comparing the demographics both (a) within editorial departments to the publisher as a whole, and (b) now and in 1975.

Labels: culture, politics, publishing

link to: 10:06 [GMT-6]

So, then: How are contemporary American politics and contemporary American commercial entertainment (and, in particular, publishing) merely slightly distorted reflections of each other... and the closer one looks, the less the reflections are distortions?

Perhaps the most obvious relationship between the two seemingly disparate fields is their use — indeed, overuse and reliance upon, to the exclusion of all else — of theatrical overacting as the sole means of appealing to their respective audiences. This isn't always literally acting, either; just look at the blurbs accompanying the Next! Bestselling! Thriller! from any New York commercial publisher, or the Next! Summer! Blockbuster! from any H'wood studio, or the Next! Last! Hope! of the Endangered! American! Middle! Class! emerging from some semi-obscure portion of Real! America! More to the point, look at all of the extended campaign speeches masquerading as political memoirs that have hit bestseller lists over the years, particularly since Ford's memoir¹ made them (somewhat) sexy. I can hardly wait for Monica Goodling's²...

That, however, is only a surface reflection; it concerns methods far more than substance. Instead, there's a far more fundamental, and structural, similarity that explains why both are broken, perhaps beyond mere repair: The audience of intermediaries no longer has sufficient congruence with the audience of the public at large, because the very purposes of those audiences has become not just disparate, but inconsistent. American idealism proposes that government is a mechanism for enabling both individuals and the collective "We, the People" to pursue a better good, for disparate, crankily individualistic, and truly strange definitions of both "better" and "good." Perhaps the best example of this is the twisting of the Intellectual Property Clause:

The Congress shall have Power... [t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;³

which tells us that copyright, and patents, and distribution of individual copies of writings (and other works of art) and inventions, have a purpose of "promot[ing] the progress of science and useful arts" through a mechanism of a limited economic monopoly — a grant of power over the particular writing/invention by the state for the benefit of all, whatever that benefit might turn out to be.

That is all well and good. It is imperfect; but then, it is human, and therefore will be imperfect no matter what. It is certainly an improvement upon every system for encouraging innovation on a broad level that had been tried before.⁴ I should not need to remind a nation of cranky individualists of the dangers of patronage as the filter for all progress and public discourse (although it appears that such a reminder is, indeed, necessary⁵). The problem is that the respective intermediaries have forgotten that "ends shape means," and "means shape ends," but that the ends are not the same thing as the means. Instead, they've accepted the Gravitational Accretion Maxim of Life:

The object of power is power.⁶

Understanding that the sole purpose of the intermediaries — whether we're talking about partisan apparatchiks or sales-and-marketing dorks who have been promoted to management positions within an entertainment-industry business really doesn't matter — is to consolidate their personal positions by increasing what got them those personal positions explains an awful lot about the entertainment industry... and American politics. The key distinction, though, isn't that the intermediaries are in fact different from their respective audiences; it's that they perceive themselves as different from their respective audiences, and rely upon "divide and conquer" tactics in consolidating that position. That distinction is both a necessary and a sufficient explanation for

• Whitewashing, in substance, in marketing, and in political speeches
• Dynasticism, in entertainment management, in entertainment performance, and in politics
• Win-lose negotiating tactics, combined with an unwillingness to either compromise or look beyond one's own immediate power interests, in entertainment and in politics
• Outright bigotry, which is inconsistent with virtually everything behind the Declaration of Independence (even if many of the Founding Fathers hadn't realized that yet)

and more other problems common to both the entertainment industry and politics than I can count. Certainly, there will be some overlap between any two major segments of a society; this, however, is more than a bit ridiculous.

There is a certain self-reference, a certain reflexiveness, in this that is all too appropriate to the American celebration of a "declaration of independence" instead of either the victory in the following war or the inception of America as a united entity. So, for that matter, is the concept that American distrust of monopolies and monopsonies should be discounted for monopolies and monopsonies that have, even once in the distant past, been part of "innovation"... whether we're talking about financial or political markets. And that's just the way it is.

I'm not proposing a violent revolution of any kind; can you just imagine trying to get gathering of authors, or of artists, or of musicians, to agree on anything? I am, instead, suggesting that individual authors — and individuals concerned with politics — embrace Margaret Mead's aphorism that one should not doubt that a few strong and enlightened individuals can make a difference... because that's the only thing that ever has. That is also the principle underlying the Intellectual Property Clause: That given appropriate incentive, creative individuals will, through their efforts, create and thereby promote progress. The irony of emphasizing "enlightened" and a document written during the Enlightenment, compared to what actually happens on the Fourth of July here in East Central Redneckistan (which is definitely part of what Palin and Bachmann would call "Real America" — we know damned well what plays in Peoria, which is only a two-hour drive away), is just too much before caffeine. Or, as Ben Franklin himself might have preferred, real ale/beer brewed under Reinheitsgebot (1516) (the German beer purity law).

1. See Harper & Row, Pubs., Inc. v. Nation Enters., 471 U.S. 539 (1985).
2. See In re Monica Marie Goodling, No. 07–042–070763 (Va. Bar 4th Dist., 05 May 2011) (concerning unlawful partisan influence on DoJ hiring and promotion). One might wonder how she got away with merely a reprimand for a blatant violation of her oath of office... but that would require the bar to actually have balls in the first place, and to really be self-regulating.
3. U.S. Const. Art. I, § 8, cl. 8.
4. See, e.g., Elizabeth Armstrong, Before Copyright: The French Book-Privilege System 1498–1526 (1990); Christopher L.C.E. Witcombe, Copyright in the Renaissance: Prints and the Privilegio in Sixteenth-Century Venice and Rome (2004).
5. Cf., e.g.,, Walter Isaacson, Benjamin Franklin: An American Life (2003).
6. Emmanuel Goldstein, Principles of Collective Oligarchy (date unknown), quoted in George Orwell, 1984: A Novel (1949).

Labels: arts, culture, intellectual property, politics, publishing, sport