link to: 12:30 [GMT-6]

• If you're busy bitching about your tax bill, perhaps you should learn how other "taxpayers" deal with the "problem" (PDF). If corporations are so intent on being treated as "persons" with the right to influence Congress (even though they're not voters, or eligible for jury duty), and to sue and be sued, and everything else of that nature, perhaps they should be taxed the same way that other people are... with the same penalties for noncompliance.

  The cognitive dissonance with today's lead editorial in the NYT is astounding, disturbing, and not at all surprising. Anyone who complains that the NYT is "liberal" has never either read its business section or noted its typical editorial page as a whole, and thinks "liberal" means "to the left of Ayn Rand." "Liberal" is a specific description of a political philosophy that, through the magic of Roger Ailes et al., has become a sort of inverse shibboleth for the current political right: If you can pronounce words like disestablishmentarianism, genocidal act, and monopsony, you must be Other and therefore evil.

• Over in the UK — where the news media pays attention to European and worldwide corporate reports, not just those originating Over Here — someone has finally noticed the profitability of academic-publishing oligopolies. Too bad the facts recited will be lost behind the identity of the person making the comment... because George Monbiot is perhaps the epitome of the ideologically blindered commenter on the left. On the one hand, one must pay a premium (a "rent", in economic terms) for otherwise-unprofitable conduct to encourage nongovernmental actors to engage in it on a consistent basis. On the other hand, I seriously doubt that a defensible rent would raise publisher operating profit margins, under equivalent accounting rules, from the nearly four percent claimed by trade-publishing conglomerates to nearly forty percent... especially given that the actual risk of loss for academic publishing is nearly zero.

  This is just another data point supporting my longtime assertion that there is no "publishing industry" — there is, instead, the bastard offspring of a three-century-long orgy among thirteen distinct business models all calling themselves the "publishing industry." (I used to think it might be as few as eleven participants, but delving deeper into nineteenth-century records has convinced me that it's more probably thirteen.)

• The Department of Justice has grown a pair of big brass ones (choose your favorite external genitalia) and sued to block the proposed acquisition of T-Mobile by AT&T. The math sort of made this inevitable under the I-can't-possibly-criticize-it-enough-as-mathematically-inept-and-factually-inapplicable HHI that forms the core of the pro-merger (and pro-finance-industry) Merger Guidelines. Even without the math, the merger is a Bad Idea unless AT&T believes it will reduce competition and enable charging of a rent, as described in the previous link sausage. The irony that this suit is possible only because the Department of Justice sued the old Ma Bell and forced its breakup — and necessary only because the Department of Justice then failed to challenge the rebirth of monopoly power through the merger of various parts of broken-up Ma Bell — seems to have escaped just about everyone.

  Now, if the DoJ will just apply the same sort of scrutiny to publishing and other elements of the entertainment industry...

Labels: internet, mass media, politics, publishing

link to: 11:17 [GMT-6]

Life beats the alternatives, but it sure does get in the way of blawgging. Too, with this being the end of August, the publishing industry has been rather moribund for a couple of weeks.

• I just love it when people propose legal reforms without looking at the substance of either what they're doing or what others have done with the same situation. This proposal/concern expressed by Rep. Conyers is an excellent example... because it does not grapple with the underlying cause of the commercial problem: The probably unconstitutional work-for-hire doctrine, combined with economically enforced-and-enforceable easy transfers of the underlying copyright.

  They don't have those problems in Germany (they've got other ones), which has a vibrant copyright-based "industry." In Germany, there's no equivalent to work-for-hire for freelance works — certain (but not all) employee works belong to the employer, but that's it. And transferring the copyright itself happens only by will or force of law. However, nobody is even willing to raise this as a model for discussion in reforming US copyright to deal with chaos that was entirely predictable based upon not one, but four historical copy-making shifts — the player piano, film and television, phonorecordings, and home recordings — that occurred long before the 'net rose and changed not copy-making technology, but distribution systems.

  On the other hand, what Rep. Conyers is trying to do does have more than minimal value; §§ 203 and 304(c) of the Copyright Act are among the worst-written pieces of garbage in that entire badly-written piece of dreck, and the inconsistency of application by the different circuits has not helped (yet another reason to bring copyright matters into the Federal Circuit). I mainly object to putting a bandage on a bleeding skin lesion without first determining whether to cut the damned thing off.

• Meanwhile, those durned furriners are mucking things up by considering security interests in intellectual property, which would have been a huge benefit for any author caught up in a publisher bankruptcy... or even the Borders bankruptcy. If, that is, they applied to copyrighted works without implicating the First Amendment. Yes, sometimes theorists run into problem with not just the real world, but with other theorists.
• Here's a thoroughly entertaining diatribe against H'wood that ultimately misses out on one of the main causes. The problem with stupid movies is not just Michael Bay — there was much the same problem in the heydays of the Western half a century ago and of the Broadway musical before that. It is, instead, with the decoupling of "profit" from "means to achieving profit"... and the consequent rise of numbercrunchers from being the advisors to being the advisees. In short, it's the same problem as in publishing, writ larger because the sample sizes are so much smaller.

  That said, I seriously doubt that Michael Bay is shakin' in his boots at a broadside from some limey critic. That would require a conscience even more than it requires self-awareness. Remember, villains do not believe that they are, in fact, villains...

• Alex Wild doesn't quite go far enough in criticizing the (mis)use of the Creative Commons license. The real problem is that it is not a license, and is therefore misnamed; it is, instead, a revocable covenant not to sue:

  If you limit your use of {this CCL work} to {insert particular subspecies}

  then the current holder of the rights to {this CCL work} promises not to enforce his/her/its exclusive rights to {insert particular subspecies}

  else the current holder of the rights to {this CCL work} makes no promises whatsoever and you are subject to his/her/its whims under the full range of copyright, trademark, and other relevant law
  end;

  And that's it. Note, too, that the CCL does not bar artistic-integrity claims when those would otherwise stand... nor claims for plagiarism (which is essentially a trademark-like, or at least unfair-competition-like, claim outside of copyright law).

• In yet another attack from the pages of the WSJ on the presumably leftist predilictions of academé, the oft-ill-informed Joseph Epstein opines that it's jargon and jingoism that causes the problems with teaching literature. In a way, he's right; the problem is that he's criticizing the wrong subset of jargon and jingoism. If there is a clear, underlying problem with "instructors not having passion for the books they are teaching," it is that they're teaching the wrong books — and, in particular, they're teaching illusory courses that ignore historical reality, and fail to distinguish "should" from "is" and from "was."

  Consider, for example, the standard survey course in American literature. For political reasons, it begins in the early nineteenth century; it shouldn't. There wasn't an "American literature" at the time of Cooper, or even by the time of Hawthorne, Poe, and Melville. For political reasons, though, American departments are unwilling/unable to start American literature with Twain; they must, instead, be consistent with the nationalism, egotism, and manifest destiny view of American Exceptionalism From the Beginning. Frankly, I think an awful lot of readers — both serious students of literature and otherwise — would be better off not encountering the marginal cases like Hawthorne and Melville (let alone pre-Reconstruction poetry) until after they've fully assimilated that survey course; they'd be much better off and would not have had quite so much substandard dreck pounded into their skulls as exemplars of excellence.

  Then there's the whole "x views/experiences in literature" movement that is so ill suited to survey and nonspecialist courses. Studying "gay themes in nineteenth-century literature" while neglecting Wilde's little stint in Reading Gaol is more than a bit shortsighted. It's not that the themes are not worth discussing; it's that they need to be discussed in context, and most of the time that context is "This is not the mainstream; it was either disfavored or outright criminalized; and it sure as hell isn't the whole of the field." Unfortunately, the PhD and tenure processes strongly discourage scholars from admitting that anything they are doing is less than universal and earthshaking — and encourage obscurantist research. They can be reformed/corrected, but that would require doing the same across academia (by doing things like admitting that "lab hours" should be worth the same number of credits as anything else, for one thing).

  I say all of this as a holder of a degree in English who successfully avoided taking any survey course in American literature by taking advanced courses in subsets of American literature... and then specializing afterward (afterword?) in British politically-oriented literature and speculative fiction, then ending up over here in law.

Labels: arts, copyright, culture, intellectual property, mass media, politics

link to: 11:44 [GMT-6]

• Congratulations to the nominees for and recipients of the Hugo Awards for "best" science fiction and fantasy works (and various support/fannish activities), announced Saturday night at the World Science Fiction Convention. The recipients were:
  • Novel: Connie Willis, Blackout/All Clear (single work published in two volumes)
  • Novella: Ted Chiang, The Lifecycle of Software Objects
  • Novelette: Allen M. Steele, "The Emperor of Mars"
  • Short Story: Mary Robinette Kowal, "For Want of a Nail"
  • Long-form Dramatic Presentation: Christopher Nolan et al., Inception
  • Short-form Dramatic Presentation: Steven Moffat et al., "The Pandorica Opens/The Big Bang", Doctor Who

  The real problem with the Hugos is that the voting process is even less rational and more likely to produce illogical results than is the US presidential primary system (or, indeed, any other primary system in the US!). For example, this year one of the finalists for "best" novel this year and "best" short story last year was also eligible for the Campbell Award ("best" new writer, but technically "not a Hugo")... but didn't make the final ballot with substantially more nominations for her novel than would have been required to make the final ballot for the Campbell. None of those who did make the Campbell final ballot were finalists for individual works either this year or last. That's not to diminish anyone's achievement... except, perhaps, that of the World Science Fiction Society itself.

• Meanwhile, H'wood executives are rending their designer garments over the "failure" of the Conan the Barbarian remake at the box office. Perhaps the lack of any discernable story or decent script had more to do with it than the executives would like to believe...
• Over at this blawg's only feline friend, the IPKat, there's an interesting discussion of a decision last week — another Second Circuit opinion that is essentially living in the past. The AmeriKat has a two-part summary of John Wiley & Sons, Inc. v. Kirtsaeng, No. 09–4896 (2d Cir. 15 Aug 2011). Do read the AmeriKat's summary; the short version is that in this opinion, the Second Circuit acted as if the Manufacturing Clause of the 1909 Act (§ 15, (PDF)) was still in effect, despite its utter absence from the 1976 Act and its inconsistency with our treaty obligations under the Berne Convention, WIPO agreements, NAFTA, etc.

  Kirtsaeng imported textbooks published by Wiley for foreign markets into the US and sold them on eBay... for considerably less than the US-market version of the same textbooks. (I should add that one need not scour eBay to find bargains like this — while helping my remoras purchase their textbooks, I found several more-formally-organized online textbook vendors who do the same.) The Second Circuit held that this is a copyright infringement, and it is not protected by the first-sale doctrine in § 109 of the 1976 Act. This time, the dissent has by far the better of the argument, but for an entirely different reason: That it would have been a clear violation under the 1909 Act, but Congress removed the statutory authority for asserting that violation in the 1976 Act. That said, both opinions are correct to criticize the ambiguous, inelegant prose in question!

  Kirtsaeng masks the real reason that the books are cheaper outside the US. The parties claim that it's due to cheaper binding and printing, thinner paper, etc.; however, I've examined several recent Wiley textbooks, and we're talking about a difference of much less than a dollar per copy on hundred-dollar-plus textbooks, especially since there's a decent chance with many textbook publishers that the bloody things were printed overseas anyway (thanks to the rejection of § 15's protectionist impulses by the 1976 Act!). The real difference is that typical US-publisher contracts — and I've seen enough Wiley textbook contracts to presume it's true for the particular textbooks at issue in this matter — give the authors a much lower royalty on books sold outside the US. It's in Wiley's best interest to protect this distinction, so that authors don't start questioning Wiley's accounting of which sales were "in" and which sales were "outside" the US. <SARCASM> But then, we should always trust publishers' accounting anyway, right? </SARCASM>

  Finally, Kirtsaeng still represents an intermediate case to the concerns Justice Ginsberg expressed in Costco last year... because the works at issue are merely less-costly packagings of copyrighted material otherwise available in the US. The true extreme case is for a work for which no authorized US edition presently exists, but is imported (even in large quantities) from foreign editions in advance of planned US publication. Consider, for example, a hypothetical Harry Potter book published only in England, with the US edition to be several months (or even weeks) later. That is the true test cast for the first sale doctrine — not a grey-market transaction in which the ultimate victims are not the publishers, but the authors.

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

link to: 18:33 [GMT-6]

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

So why am I so dismissive of the dissent in Muchnick IV (and yes, the comparison to a bad series of horror films is both traditional in law and intentionally ridiculous for this matter)? It's a very simple reason, but its bound up in the complex institutional dynamics of the Second Circuit and, more generally, in excessive stare decisis.

Any first-year law student would tell you that the common law is a system founded on precedent, in which senior courts bind more-junior courts with "definitive" statements of what the law is. This makes a great deal of sense when the underlying source of law is not changing rapidly; we don't really want whiplash and uncertainty. It makes particular sense (and in a way that those who've only ever experienced civil law seldom discern) when interpreting slow-changing foundational documents like constitutions.

However...

Sometimes the underlying source of law changes. Sometimes it's the sheer pace or constancy of change; sometimes, however, it is a long-ago change in fundamental concepts that is not made explicit in the source of law, so it doesn't obviously make all of the precedent established under the old sources invalid. An excellent example of this is the resistance of the Courts of Appeals to the implications of 2Live Crew for parody/satire in particular, and fair use in general... because the Courts of Appeals continue to rely upon case law based upon the judge-made equitable doctrine of fair use as it developed under the 1909 Act, not the statutory interpretation of the statutory affirmative defense of fair use found in § 107 of the 1976 Act. The Ninth Circuit's continuing reliance on Air Pirates and Krofft as accurate, current interpretations of law is just one example; the Second Circuit's reliance on its own old precedent has been even more disturbing, as in Castle Rock.

And now, after this longwinded introduction, I must point to what I perceive as two fundamental errors in Judge Straub's partial dissent. Either one of these errors would probably have caused his partial dissent; together, they appear to have proven irresistible.

The first of the two errors concerns the nature of copyright itself, as defined in the statute... however inelegantly and unclearly. Under the 1909 Act, copyright was unitary — that is, it could not be subdivided, and a party exploiting a copyright needed to actually own the whole copyright at the moment of publication. This is why so many older articles and works of short fiction that were published in magazines have copyrights credited to the publisher (e.g., "Copyright © 1942, Street & Smith Publications; copyright renewed 1970, Nightfall, Inc."). Although the text of the 1976 Act is not exceptionally clear about it, the 1976 Act fundamentally changed the presumptive author-publisher relationship from a sale to a mere license of a limited right in two ways. First, the rights for copyright were made divisible; second, the termination/revocation provisions indicate that the author of a work is to be treated as its ultimate master, even when the publisher's market power enabled it to force a sale (rather than a license) upon the author. With all due respect to Judge Straub, I think his rejection of the fundamental conflict found by the majority (slip op. at 38–44 sub nom. 3–9) is infected by a presumption that the publishers inherently had the right to do what they did with the electronic databases but for the Supreme Court's decision in Tasini. This is incorrect; Tasini is a necessary, logical consequence of both the 1976 Act and a careful consideration of the IP Clause of the Constitution.

The second dubious assumption that I see Judge Straub making is a more subtle one, because the "source of law" that changed was not a statute created by Congress, but the judge-made rules of procedure. Most of the authority cited by Judge Straub (and, for that matter, the majority, if less obviously so) supporting his analysis of adequate representation comes from a time when Rule 23 did not explicitly and separately consider the suitability of counsel. Instead, the suitability of counsel was folded into considerations of adequacy of representation under Rule 23(a)(4) — as if the named plaintiffs were more alter egos of the lawyers controlling the litigation's process than anything else. However, a few years back these considerations were explicitly separated; Rule 23(a)(4) now concerns only the adequacy of the proposed class representatives, while adequacy of counsel is considered under Rule 23(g). This is much more of a problem in a settlement class than in a fully litigated class; indeed, the increasing use of settlement classes in the 1980s and 1990s provided much of the impetus for the revision of Rule 23.

I find this latter problem particularly troubling due to the way this litigation arose... combined with the conduct of the various parties. The post-Tasini litigation for periodicals (and, too, the anti-Google Book Search litigation lurking on Judge Chin's docket) was begun by lawyers hired by a subclass of plaintiffs who did not share the personal interests of the disfavored subclasses. Bluntly, the Author's Guild does not adequately represent "authors", or even "authors of material published in commercial periodicals" — its own membership criteria make that impossible, and the particular AG members nominated as named plaintiffs are egregiously nonrepresentative. The settling parties made no effort whatsoever to ensure that the disfavored subclasses were represented at the bargaining table, either in the person of named plaintiffs or by counsel; indeed, the AG and its lawyers have been obstinately hostile to anyone else providing substantive input.

I think that the lesson we should take from this is that neither civilization nor litigation ends at the Hudson... and that stare decisis is a valid consideration only so long as the context remains comparable. IMNSHO, Judge Straub's dissent is unpersuasive when this is considered; the settlement under consideration in Muchnick IV is inappropriate and improper under the Federal Rules of Civil Procedure, not to mention under both antitrust and copyright law; and the proposed settlement in the GBS litigation is worse.

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

link to: 11:20 [GMT-6]

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

... and that's a good thing.

This morning, the Second Circuit decided In re Literary Works in Elect. Databases Copyright Litig., No. 05–5943 (PDF), on remand from the Supreme Court's opinion in Muchnick. The Second Circuit decided (2–1) that:

We agree with objectors that the interests of class members who hold only Category C claims [for unregistered works] fundamentally conflict with those of class members who hold Category A and B claims. Although all class members share an interest in maximizing the collective recovery, their interests diverge as to the distribution of that recovery because each category of claim is of different strength and therefore commands a different settlement value. Named plaintiffs who hold other combinations of claims had no incentive to maximize the recovery for Category C-only plaintiffs, whose claims were lowest in settlement value but eclipsed all others in quantity. The interests of Category C-only plaintiffs could be protected only by the formation of a subclass and the advocacy of independent counsel. We therefore hold that the district court abused its discretion in certifying the class based on its finding that class representation was adequate. (slip op. at 27–28, footnote omitted)

In short, there cannot be a global settlement in which all distinct classes do not have adequate representation at the bargaining table. Well, duuuuuuh: As the Second Circuit pointed out here — and Judge Chin pointed out in rejecting the GBS settlement the first time around — this is a fundamental requirement of Fed. R. Civ. P. 23(a).

This ultimately destroys any realistic chance of settlement of the GBS as the parties have structured their settlement discussions on two independent grounds, both of which Judge Chin noted as conflicts that would have required denial of class certification for failure of adequate representation. First, there's the precise issue stated in this remand decision — treatment of unregistered works. Although publishing contracts typically require the publisher to register book-length works with the Copyright Office, authors have little (if any) remedy for the publisher's failure to do so... because, as discussion elsewhere in the remand decision implies (slip op. at 23–25), a court's immediate tendency to say that the cost of registration is the proper measure of discount is not an accurate measure of the difference in value, even after Muchnick.

Second, and of perhaps more import, is the "orphan works" issue. This is where most of the attention concerning Judge Chin's opinion has gone, at least in public. Under the same reasoning as in the Second Circuit's remand decision noted above, "orphan works" even when registered constitute a distinct subclass with unique claims — and it's a subclass trying to share in a limited settlement fund. That subclass must be explicitly represented at the bargaining table if the GBS settlement is to encompass "orphan works," but the parties have obstinately refused to allow anyone else at the table. This behavior sinks both subclasses, and therefore will limit any GBS settlement proposal to non-orphaned, registered works at most — and Google won't buy that, or at least would have to fundamentally change its longstanding business model and public statements to even consider it.

I've argued from the beginning that the inept (at best) complaint represented such a fundamental flaw in the GBS litigation that it should, as a matter of justice, fail for procedural reasons that will not bar authors from a better assertion of their rights. One of the primary concerns that I expressed at that time was that the errors of Morris and the Second Circuit's refusal to revisit its misreading of the 1976 Act (so that it wouldn't have to declare its 1909 Act decisions no longer good law) made the matter essentially impossible to litigate.

More in the next couple of days, including an analysis of why the dissent in today's opinion isn't just wrong — it fundamentally misconstrues the nature of the publisher-author relationship in a way that warps its view of the database-author conflict.

Labels: copyright, intellectual property, internet, publishing

link to: 10:39 [GMT-6]

• One of the tradeoffs adopted in the Copyright Act of 1976 was the "termination rights" in § 203. I don't expect anyone to try to untangle that badly drafted section, which is probably the most convoluted and least clear in the entire Act (except, that is, for its counterpart for older works, § 304(c)) — and that's up against some pretty stiff competition, such as § 512. In any event, It's That Time Now... and the record companies are complaining. Schade.

  The way this is supposed to work — and I emphasize supposed to for reasons that will become increasingly unclear — is that the natural-person author, or certain designated blood relatives, files a conforming notice with both the publisher and the Copyright Office within a certain window that extends into the different specified window for termination of any transfer of a copyright interest. (We'll leave aside that the correct term is "revocation," not "termination"; if it was mere "termination," it would not have the desired effect on unexercised rights that had been transferred, and would not cut off rights to make further subsidiary rights licenses outside the US so long as those licenses were accounted to the copyright owner.) For musical compositions and recordings, this requires a multistep inquiry to determine who the "author" is... because under the US Copyright Act, authorship resides in the party who "fixes" a work, not necessarily in the performer of a musical composition. And if the party who "fixes" a work is not a natural person, but is instead a worker for hire, the termination provisions do not apply. Unless, that is, the "fixer" is an employee of the natural-person "real" author. In the instance of musical recordings, that means that it matters whom the sound engineer and producer were formally working for when they fixed the performance; and that is the primary argument of the recording companies. Of course, that argument has not been all that successful in publishing, but then printed works are already copyrightably fixed at the time of submission to the publisher...

  Stay tuned for another battle between millionaires and billionaires that will trickle down to the rest of us. After all, the only true trickle-down effect in economics is that post-lawsuit!

• The UK liability for a wrongfully negative book review appears to be about £65,000. Plus attorneys' fees. But don't be quite so quick: The actual foundation for the award was that the reviewer was reckless with a statement of fact. Absent that recklessness, the judge would never have tacked on the £15,000 assessed as part of the damages for being "malicious" (in the English sense of "mean and spiteful," not the artificial US sense of "reckless disregard for the truth concerning a public figure"). Thus, my advice to book reviewers — even those whose reviews will appear somehow in the UK — is not to tone down the negative comments; it is to check your factual statements, which you should have been doing anyway. If you don't think you were interviewed by the author, but have a bad memory, you're much better off saying "I don't recall any such interview, let alone what might have been said" than flatly claiming that the interview never took place. Then, trash the bad book as you will...
• I have long held (long for me, that is, meaning "since the mid-1970s") that preferences for different computer operating systems and environments are essentially religious in character. If you don't believe me, try looking at the actual code for passwd in Unix System V and determining exactly how much confidence one should have in its robustness... In any event, here's an amusing look at the slashdot commentariat as a pack of seventeenth-century counterreformationists that conveniently ignores the dynastic tendencies of seventeenth-century catholicism as dominating even internally consistent theological considerations (if, that is, "internally consistent theological considerations" isn't an oxymoron on the order of "civil war"). But the pointer moves...
• Speaking of seventeenth-century attitudes, and religious arguments, and theocracy — not to mention dynasticism — I offer you "Snow Whiiiiiiite and the Seven Dweebs":

  

  In the interest of greater geographical diversity, the Heffalump campaign has since replaced one theocratic protestant with another; apparently, two candidates from Minnesota was one too many, and Texas wasn't adequately represented. Intellectually, they're all dwarves, though... and in the most insulting possible meaning of that word. So far as I can tell, ethically they're not any taller.

• If you, like Rick Blaine, claim that your citizenship is "drunkard," you'll be amused by the AmeriKat's consideration of two rum results in the world of branding for, well, rum. N.B. This does relate to the brands under which authors license their works, and under which publishers sell copies of them. It's not just about unacknowledged ghostwriters, either, although that's certainly the obvious instance; it's also about dubious "collaborations" (J___ P____, anyone?) and publisher-forced adoption of pseudonyms by previously published authors.

Labels: censorship, civil rights, copyright, intellectual property, internet, politics, publishing

link to: 12:25 [GMT-6]

• Sometimes the best way to deal with extremism and racism is not through the ballot box, but through subversive t-shirt giveaways. Perhaps someone should try this sort of thing in Tehran, and then leave the country very very quickly... given that the current Iranian theocracy seems to think there's something worse than being an American.
• Remember AmazonFail 3.21, when I suggested that there were significant antitrust problems with the so-called "agency model," more properly called a resale price maintenance agreement... and blamed it on ladies' leather accessories and the Supreme Court's silly adoption of the view of economists who are not themselves market participants? On Tuesday, a class action filed in the Northern District of California essentially adopted a similar view, but this time claiming outright collusion. I have not yet been able to review the actual complaint in Petru v. Apple, Inc., No. 11–03892, as it is not yet available on PACER (or there's a digit/character mismatch somewhere); however, the description in the law firm's public statement sounds awfully familiar. The lawsuit, however, does not appear to be reflected in Apple's stock price — yet another indication that the Efficient Markets Hypothesis ("the price of a security immediately and accurately reflects all known information about that security") is about perceptions and not information.
• Michele Bachmann (the woman with the I'm-a-psycho eyes pictured to the right... and that is the cover as published) is no Renaissance woman. That shouldn't surprise anyone; many of the leading figures in Renaissance art and culture were Catholics, Jews, and Freethinkers, with the occasional atheist thrown in. That is, minions of Satan, as Dana Carvey's "Church Lady" might have said.

  This is, perhaps, the best evidence that the Heffalump Party has no connection to reality. Unlike the recent "Diana at 50ish" Newsweek altered photos, this one was apparently not altered at all. If the eyes are a window to the soul (ok, so it's Catholic theology, but has been adopted by many, many Protestant poets over the years), then what does it say about the Heffalumps that this narcissistic, sociopathic ignoramus is one of the two or three leading candidates to challenge Obama in 2012? Both parties have their shares of reality-challenged members, and even candidates; but this, in response to the first US President whom one can be absolutely certain has significant non-Protestant ancestry by just looking at him?

  On the other hand, I respectfully submit that Ta-Nehisi Coates and Jay Lake both have it wrong concerning this cover. Coates says, missing the point:

  But I do know that, as a writer, I really hate when editors pick an image that totally overshadows the story. The goal is to draw eyeballs, of course. The challenge, however, is drawing eyeballs to the actual story. I am speaking non-cynically, and assuming an editorship that really does think about more than making magazines fly off the stands. Even assuming that that's all they want, you don't want to be that writer. For the rest of your career, you'll be answering for that image. Not your editor. Not the photographer.

  This misses the point in a fundamental way directly related to the memes underlying the Mad Tea Party. The Mad Tea Party and its ideology are primarily about, and primarily concerned with, abnormal surface appearances and analysis as a wholesale substitute for nuance and reflection; about oversimplification of a complex world and complex people; about (when about anything except seizing and maintaining power) "self-interest" without that pesky adjective "enlightened" in a constructed world in which Rawls's veil of ignorance and the fundamental distinction between justice and advantage are not just irrelevant, but treated as actively evil. The reflexiveness of this cover is not irony, nor parody; it is, instead, satire in the mode of Voltaire and Carroll. It is not at all "stooping to the base tactics of one's opponent" for a very simple reason: Its purpose is to enlighten and to engage, not to obfuscate and to obliterate. (If it sells more copies of the magazine, so be it.) And since these considerations are products of Enlightenment philosophy and economics — an era no doubt more disturbing to Bachmann than the Renaissance, given its full-bore development of the concepts of "religious tolerance" and "separation of church and state" — we're back to the article that inspired this multiply reflexive link sausage.

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

link to: 10:26 [GMT-6]

• More evidence that bow ties are a symbol of the banality of evil, or something like that. What I find most fascinating about this is the implication for what a corporate entities investment in another, similarly prominent and capitalized corporate entity implies about the psychology of investment returns and risk... and that ultimate objective of neoclassical economics, "efficiency." Query for neoclassical economists: Under what conditions is an otherwise-identical Carnot engine most "efficient," and what does that correspond to for a socioeconomic Carnot engine?
• Today marks the sixty-sixth anniversary of the last time nuclear weapons were actually used, instead of merely "tested". This has nothing whatsoever to do with the consumption of another tulip bulb on Wall Street. Nothing. Mark Cuban's musings on patents merely confirm this, as the New HuffPo (parallel to the history of New Statesman entirely intentional) inadvertently published. It's inadvertent because it's inconsistent with the preestablished ideological convictions and personal economic interests of its ultimate owner — see preceding item.
• Sometimes there are weird consequences for one's dubious conduct. Really weird.
• This blawg's only feline friend the IPKat offers well considered mewsings on the recent UK governmental reaction to a major report on copyright reform... that won't work in the US, or in a system that must interface with the US system. The Hargreaves Report, for all of its depth, is a remarkably insular document in one critical respect: It entirely discounts the tension between the kinds of "freedom of expression" directly and indirectly allowed in/enabled by our First Amendment and the rights of creators to their creations (in the US, also of constitutional weight). By limiting itself to a Eurocentric perspective, it is as ultimately flawed as various big-content-industry proposals for "enhancing" enforcement of US copyrights.

  If there's one thing that we should have learned from the past twenty-five centuries or so of even moderately nonunique literacy, it is that the arts will always find a way to transcend and subvert national boundaries... even if only, like François-Marie d'Arouet and Aleksandr Iseyevich Solzhenitsyn, forcing creators to live in exile and send their creations back.

Aaaaand that's all the link sausages I managed to put into the smoker (I smoke link sausages before posting them so that they don't add to the rancidity of the 'net... at least not immediately). There's another batch being smoked right now, though.

Labels: arts, copyright, culture, intellectual property, internet, jurisprudence, mass media, military, politics, science

link to: 11:44 [GMT-6]

First, though, one needs to eliminate one purported problem from the discussion. I've heard rumblings — not quite silverback-gorilla chestbeating, but close — from several different perspectives on this issue to the effect that "commercial publishers will refuse to deal with authors/literary agents who are really competitors and not content providers." Hogwash. Leaving aside the antitrust problems that would/might create, an author/literary agent who has a literary property available to a publisher that appears likely to the publisher to be highly profitable is still going to get a commercial publishing offer. In marginal cases, it is perhaps possible that a particular commercial publisher would look askance at the author/literary agent "competitor"... but that can be solved through the contracting process itself, and if it can't that just might be a hint that the property was a poor fit for that publisher in the first place.

Second, there are essential preconditions on the relationship between the author and the literary-agent-acting-to-facilitate-e-books. To expand upon my comments at Dean Wesley Smith's blog, the minimum arrangement must include all of:

1. No commingling of funds at all. E-book revenues are completely separated from representation revenues, and preferably in a separate business structure to avoid liability spillover from one to the other. The obvious corollary is that the e-book is made available to the public under a separate written agreement, distinct from the author/literary agent agreement. This is protection for both the author and the literary agency, since e-books may end up in markets for which they were not originally intended, and thereby (under some legal systems) create liability for, say, blasphemy.
2. The agent’s compensation is no greater for the e-book than the agent would get from any other license transaction. This is essential to avoid both the fact and appearance of a conflict of interest. If the agent is taking, say, half the revenues from e-book sales, that may be a better deal than commercial publishers presently offer... but it also creates a disincentive to actively market the rights package as a whole, for which the agent's compensation would be only 15%.
3. The electronic publication concerns an already-printed work that has already reverted/never licensed electronic rights, especially on behalf of an estate, and for which the agent and author have agreed that existing (and actual) commercial offers have been inadequate. This may, under some circumstances, be a collection of an author's previously published shorter works, especially fiction. There are possible circumstances in which a related not-previously-published work could be published as an e-book — say, an orphaned-by-demise-of-magazine novelette that provides linking material between two commercially published novels — but those circumstances are very, very rare and require involving a sophisticated literary-rights attorney early on to ensure that the proposed publication is, indeed, appropriate.
4. The deal is for a limited term with opt-in renewal periodically — certainly terms not more than five years, and preferably shorter than that. This is an essential ethical and economic contrast with commercial publishing practices and attempts to grab "life of the copyright" licenses... not to mention deal appropriately with the "out of print" problem.
5. There is an appropriate way to terminate the agent’s e-book license for a particular work if the author gets a better, non-self-interested offer elsewhere (such as, but not only, a package deal with a print publisher that pays more and/or provides other revenue streams in the package). On the other hand, if the author dies, and the author's heir's niece's boyfriend says he can do everything cheaper than the agent does (which is unlikely if point 2 has been satisfied), that's not a non-self-interested offer, and is not sufficient grounds for termination.

Of course, these are the bare minimums to make a deal possible, not everything that should be there. No deal that violates any of those conditions passes even the laugh test (“Your Honor, our position is that {breaks down into laughter}” = EPIC FAIL), let alone is a good deal for an author. My point is only that under certain seemingly narrow conditions (that are disturbingly common given the abject idiocy and incompetence at the commercial publishers), it is possible to create an appropriate electronic publishing relationship between a copyright holder and an agent acting to facilitate electronic publishing.

Not every literary agency has the necessary technical and/or legal knowledge to facilitate placing electronic versions of its clients' works on the market. There are some significant tax issues, and legal issues, and technical issues, and vendor-compliance issues, that will not get simpler in the foreseeable future — rather the opposite — that will make many (and perhaps even most) literary agencies inappropriate partners for authors, and especially heirs of authors, seeking to bring out electronic versions of a backlist. Conversely, not every author's backlist is appropriate for this kind of structure; for example, coauthored works in which one or more authors is deceased or has a short life expectancy are completely inappropriate, if only due to the insanity of and delays imposed by probate proceedings and taxes (and you do have a current will designating how to handle your literary estate, right?).

On the other hand, the electronic publishing rights grabs being imposed adhesively by commercial publishers are inexcusable and — in any just world — prohibited by unfair trade practices law. This not being an exceptionally just world, I can only argue that publishers' present practices implicate unfair trade practices regulations, and jump up and down about it. (I'm smart enough not to hold my breath while doing so.) That is, an appropriate author/literary agency electronic publishing deal can be a win-win for the author and literary agency... and a win for the reader; any disadvantage to the media conglomerates is just schadenfreude.

Labels: intellectual property, internet, publishing

link to: 11:57 [GMT-6]

Progress, far from consisting in change, depends on retentiveness. When change is absolute there remains no being to improve and no direction is set for possible improvement: and when experience is not retained, as among savages, infancy is perpetual. Those who cannot remember the past are condemned to repeat it. In the first stage of life the mind is frivolous and easily distracted; it misses progress by failing in consecutiveness and persistence. This is the condition of children and barbarians, in whom instinct has learned nothing from experience. In a second stage men are docile to events, plastic to new habits and suggestions, yet able to graft them on original instincts, which they thus bring to fuller satisfaction. This is the plane of manhood and true progress. Last comes a stage when retentiveness is exhausted and all that happens is at once forgotten; a vain, because unpractical, repetition of the past takes the place of plasticity and fertile readaptation. In a moving world readaptation is the price of longevity. The hard shell, far from protecting the vital principle, condemns it to die down slowly and be gradually chilled; immortality in such a case must have been secured earlier, by giving birth to a generation plastic to the contemporary world and able to retain its lessons. Thus old age is as forgetful as youth, and more incorrigible; it displays the same inattentiveness to conditions; its memory becomes self-repeating and degenerates into an instinctive reaction, like a bird's chirp.

George Santayana, The Life of Reason (1905/1922; 2005 Gutenberg edition) (emphasis added; unconsciously sexist language retained from original).

• Once again, the Hollywood Reporter is about half a decade late... this time in remarking on a decade-long purported gap between the experiences of the music industry and the experiences of the film industry. In reality, the gap is in this instance — and, historically, has almost always been close to — half a dozen years rather than a decade. This time, HR declares that

  The move [toward packaging online digital copies along with physical disks], say studio insiders, is the most serious effort yet to wean consumers away from the DVD, which has dominated home entertainment for nearly 15 years. "The evolution from a physical disc-based business to a digitally based business is inevitable," says [Disney distribution executive] Chapek. "I think the only debate is the period of time over which that will happen."

  thereby demonstrating that it wasn't paying attention in 2006 through 2009, or even in 2005 when the issue became statistically significant and therefore apparent to those of us who actually look at data instead of just reprinting press releases, or that the problem in music began showing up in 1999, not 2002 as HR implicitly claims. At least this story doesn't completely ignore consumer perceptions of "format wars" as a significant barrier. BTW, I know someone with a working LaserDisc player who still swears by it...

  Slate provides a slightly more balanced view that still misses the point — and particularly the point as it relates to e-books, which continue to have a format war and continue to fight DRM issues strangely reminiscent of computer software in 1983: That consumers want content, not packaging, and will make choices based upon their perceptions of the permanence of the content; and that they ultimately will not respect inconveniences based solely upon protecting a vendor's revenue stream from pirates.

• The less said about yesterday afternoon's fun following the news from Foggy Bottom, the better. Perhaps the eminent philosopher Paul Simon (no, the one without the bow tie) provided the best aphoristic take:

  Sittin' on the sofa on a Sunday afternoon
  Gonna hear the candidates debate
  Laugh about it, shout about it, when you've got to choose
  Every way you look at it, you lose

  That this song was written for a film about seduction by an alcoholic is all too appropriate after the various declarations of doom, "victory," and exhaustion over the budget "deal" that will be respun (and reneged upon) at 33¹/₃ RPM — or, given the headnote and the faster pace of today's media, perhaps at 78 RPM — especially since this is the fifteenth time the debt limit has been debated and raised in the last sixty years. It is not a coincidence that averages out to once each presidential cycle... which brings us back to the specific debates in question in that 1967 film.

• Speaking of tax "deals": It's hard to escape Sauron's destruction of news-media values these days. The problem I with that particular screed have is that most Americans only began bitching about Sauron's malignant influence on all media during this century, or at earliest in the late 1990s. I had the dubious privilege of watching him destroy English media in the 1980s, as he tightened his grip on The Times, destroyed its independence and willingness to call "bullshit" on hypocrisy, and forced the mainstream media in England to fairly closely align with political parties... which then proceded to change right out from under the various mainstream media outlets. All one needed do is follow the Poll Tax riots of 1990 in more than one outlet after a little personal observation; all of them got it wrong, with Mark Knopfler's take (actually listen to the linked video) closer to reality than any of them. It is more than a little bit disturbing to me that the Grauniad (which, to undiscerning Americans — and particularly those who believe that civilization stops less than 100km from their doors — is "very liberal") seems to be the only English media outlet constantly calling out other media for abusing the public... and that faux-news programs on Comedy Central seem to be the only American media outlets doing so over here. I may be a liberal myself, but I know enough history to be very concerned when only one viewpoint is willing/able to call bullshit over nonideological failings.
• First it was commodity businesses moving offshore, making noises about "shareholder value" while really thinking about "tax advantages" and "lax white-collar-crime enforcement." Then defense contractors. Now it's IP licensing. And nobody is pointing out the historical parallels... or pitfalls.

Application of the head quotation to the link sausages above is left as an exercise for the student. It's sure as hell not going to be applied by either our media or our political "leadership"!

Labels: copyright, intellectual property, internet, mass media, politics