link to: 14:43 [GMT-6]

• Not with amusement, but with vast cynicism begun at a briefing at USAFE headquarters in the 1980s "suggesting" that US servicemembers and family members be whisked back to the US after any confrontation with the Italian criminal justice system due to systemic bias against foreigners (and particularly non-Europeans), I must ask whether Amanda Knox might be a witch. At least over here we don't propose to burn criminal defendants because they weigh less than a duck, and therefore float, and therefore are made out of wood, and therefore burn like witches, and therefore are witches. Except in Georgia and Texas, that is.

  All seriousness aside, this is a disturbing example of what happens when the State's pursuit of and right to "justice" becomes corrupted by the pursuit of vengeance. There's no excuse for the murder of Meredith Kercher. Neither is there any excuse for dragging furriners off the street, investigating incompetently, and convicting them for heinous crimes largely because they're furriners. Yes, we do it over here, too; that does not excuse the practice. Neither is it to say that Ms Knox is necessarily entirely innocent; sometimes the cops do frame the guilty, but the State has an obligation to be better than than Captain Queeg. I can't pass judgment on the substance, but the procedure followed by the prosecution in Italy (including the police) was not conducive to obtaining a truthful result.

• Maybe Simon Cowell should participate in the next Heffalump debate among the presidential candidates. At least according to some foreign journalists, it's entirely possible that no one would know that anything had changed.
• I remain completely underwhelmed by e-readers, including the apparently orgasm-inducing Fire. I'll consider getting interested with at least three times the battery life (ten hours is nowhere near sufficient for a must-recharge-instead-of-swap-batteries unit), native PDF-with-layout support, at least another 65% drop in price... and some assurance that I can permanently disable whatever wireless is built in and run it solely through SD-card loading, and in particular do so without breaching any purported EUL. It's not the ads that I object to so much as the potential tracking. And even then, it will be just some normal level of interest.
• Algis Valiunas asks, in a sideways fashion, why do literati show so much disdain about business in their works? Speaking from what I observed in a public (state-financed, for those of you across the Pond) school — and a much higher proportion of our literati have public-school backgrounds than you might think — at least part of it is the scorn heaped upon them by their classmates, parents, and most of the education-system apparatchiks. There are only so many times that a budding literatus/literata can be expected to put up with being told to change focus and do something worthwhile with the future, usually involving traditional business activity... while simultaneously observing, even if not consciously, that the jocks of both genders seldom get the same disdain for their ambitions. Put another way, when one's formative years involved concerted attacks upon one's still-fragile-and-forming self-identity, it's not too surprising that years later one might lash out at the perceived source of the attack.

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

link to: 14:05 [GMT-6]

Authors' Guild v. HathiTrust:
II. Entering the Procedural Jungle

Suing HathiTrust (in essay form)
Proposed Settlement With Google (in essay form)
Suing Google (in essay form)

By the time we're through here, and finally reach all of the nerdy policy stuff relating to the merits that everyone has been debating without considering how the procedural jungle shapes that debate, we'll definitely be agreeing with Captain Willard after encountering a tiger while looking for mangoes:

'Never get out of the boat.' Absolutely god-damned right.

This really is a jungle, and unfortunately I don't see much chance for Clean and Chef and the Chief to survive this little trip up the Nung River to a place where there is no method — only insanity — and accusing someone of infringing nebulous, unclear, or unclearly owned rights is all too much like handing out speeding tickets at the Indy 500. If all of that seems a bit too surreal for you, I suggest that you withhold judgment until you've spent a little bit of time in the jungle with me.

I'm going to start by considering how some of the civil procedure issues — in particular, the remedies and the parties' limited representativeness ‐ shape the complaint, the litigation, and the debate on the merits. (I'll try to withhold discussing the merits themselves until we reach Part III, but that's going to prove exceedingly difficult.) I will then describe some of the civil procedure issues raised by the complaint as filed that are somewhat more specific to the complaint. I will close this preliminary trip through the jungle by suggesting some procedural alternatives that avoid some of these problems... and describing some of the additional problems that those alternatives reveal themselves.

(a) Potential Remedies as Overriding Limits

I hinted in Part I that the potential remedies have a constitutional dimension to them concerning the jurisdiction of the federal courts over this lawsuit. The complaint itself is more than a bit vague on what it is requesting:

WHEREFORE Plaintiffs demand that:

(a) Pursuant to 28 U.S.C. § 2201, this Court declare that:

   (i) Defendants' systematic digitization and distribution of copyrighted materials without authorization constitutes unlawful copyright infringement in violation of Sections 106 and 108 of the Copyright Act; and

   (ii) Defendants' distribution and display of copyrighted works through the HathiTrust Orphan Works Project will infringe the copyrights of Plaintiffs and others likely to be affected;

(b) Pursuant to 17 U.S.C. § 502, this Court issue an injunction enjoining Defendants from:

   (i) systematically reproducing, distributing and/or displaying Plaintiffs' or any other copyrighted works without authorization except as specifically provided by 17 U.S.C. § 108;

   (ii) providing to Google for digitization copyrighted works without authorization;

   (iii) proceeding with the HathiTrust Orphan Works Project, including without limitation, from displaying, distributing or otherwise making available any so-called orphan work protected by copyright.

(c) Pursuant to 17 U.S.C. § 503, this Court order the impoundment of all unauthorized digital copies of works protected by copyright within the Defendants' possession, custody or control, including works whose copyrights are held by Plaintiffs, to be held in escrow under commercial grade security, with any computer system storing the digital copies powered down and disconnected from any network, pending an appropriate act of Congress.

(d) Pursuant to 17 U.S.C. § 505 this Court award Plaintiffs their attorneys' fees and other costs; and

(e) Plaintiffs be granted such other relief as may be deemed just and equitable.⁷

Then, a vague prayer for relief is both traditional and expected at this stage of a lawsuit. No discovery has been taken; no defendant has asserted any specific defense; and on this issue in particular, the underlying law is about as clear as the mud at the bottom of the Nung River. But how does this shape the lawsuit?

First, note that the request for declaratory relief in (a) is inconsistent with the request for injunctive relief in (b) and the request for impoundment in (c). This complaint is plainly trying to have things both ways by getting both a forward-looking declaration of who has what rights and a backward-looking remedy to stop infringement both permanently in (b) and during the pendancy of the suit in (c). At least it avoided the more-obvious Eleventh Amendment trap of requesting damages that I discussed before; the problem is that the request for attorneys' fees might also constitute a federal-court-ordered expenditure by an arm of the state that implicates the Eleventh Amendment.⁸

Leaving the inconsistencies aside, though, the remedies requested also will shape this litigation because they are founded on largely incompatible interpretations of potential evidence and potential legal arguments. The declaratory judgment requested in (a) essentially asks the court to determine whether under the particular evidence eventually entered into the record the HathTrust program constitutes an infringement of these plaintiffs' copyright rights. That kind of declaration is very fact-specific and fact-bound. The impoundment requested in (c) is also fact-specific and fact-bound to the particular program in question. The injunction requested in (b), however, is not; in fact, by its very terms it inverts the evidentiary considerations by concerning itself not with actual behavior, but potential future behavior engaged in "without authorization". At this point, it is worth recalling footnote 6 of Tasini — a comment that for copyright matters in the digital age may end up being the equivalent of footnote 4 in Carolene Products:

The dissenting opinion suggests that a ruling for the Publishers today would maintain, even enhance, authors' "valuable copyright protection." We are not so certain. When the reader of an article in a periodical wishes to obtain other works by the article's author, the Databases enable that reader simply to print out the author's articles, without buying a "new anthology … or other collective work." In years past, books compiling stories by journalists such as Janet Flanner and Ernie Pyle might have sold less well had the individual articles been freely and permanently available on line. In the present, print collections of reviews, commentaries, and reportage may prove less popular because of the Databases. The Register of Copyrights reports that "freelance authors have experienced significant economic loss" due to a "digital revolution that has given publishers [new] opportunities to exploit authors' works."

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 [17 U.S.C.] § 201(c). We may not invoke our conception of their interests to diminish those rights.⁹

The "without authorization" language in the HathiTrust complaint's request for relief part (b) is a mirror of Justice Ginsburg's language in Tasini note 6. The complaint appears to contemplate a positive prior authorization by the authors, while Justice Ginsburg was primarily concerned with a positive objection to prior conduct. This is where it becomes impossible to separate the merits from the civil procedure issues, because some of the "authorization" (or, from the opposite perspective, limitations on rights to object) for activities depends not on the ordinary rights of copyright holders found in § 106, but on the particular privileges accorded to libraries in § 108.¹⁰

The remedies requested — and not requested — will also shape the litigation in two other respects. For one thing, the requested injunction in (b) does not necessarily reach either collective and collaborative action — hypothetically, each of several libraries providing enough of a work to fall inside of the fair use defense provided by § 107, but that collectively exceed whatever limit there may be to fair use¹¹ — or the propriety of authorizing a third party such as Google to engage in conduct that the "libraries and archives" could do themselves, but could not otherwise be done by that third party because the third party itself does not fall under § 108(a)(1) or (2). For another, by limiting itself to nonmonetary remedies (excepting my musings on (d)'s request for attorney's fees as it may relate to the Eleventh Amendment), the request for relief essentially bars inquiry into the arrangements between HathiTrust and its members, and between the libraries (collectively and individually) and third parties like Google that actually created the digitized versions in question. These are both, however, inquiries that are critical to the policies and practices implicit in determining the merits of the action.

Finally for now, there is an implicit definition of "infringement" in the remedies that is inconsistent with the rights provided to copyright holders in § 106 of the Copyright Act. The remedies requested imply that an infringement is not complete until a copy is distributed to a third party. As I have noted before, this is an unduly restricted description of infringement, because making the copy in the first place — digitizing the works — is an infringement all by itself. This is a fundamental error by plaintiffs' counsel that is perhaps required by the Authors' Guild's prior errors in the litigation against Google... that reflects the Authors' Guild's unsuitability as a representative/associational plaintiff in this action. At least this lawsuit avoids mucking that problem up further with considerations of suitability as a class representative; however, it also fails to extend the statute of limitations as a class complaint would (echoing precisely the problems raised by Tasini itself!).¹²

Next time: Mangoes... and the civil-procedure theory of the complaint

7. Complaint (Doc. 1) at 22–23 (hyperlinks added).

   As an aside, this prayer for relief is simultaneously unusually clear for copyright and other intellectual property litigation and incredibly sloppy for high-stakes litigation of any kind. It is unusually clear in that the prayer for relief itself cites the authority authorizing the court to grant such relief. It is incredibly sloppy in that it was not adequately proofread for either grammar and typography or parallelism (consider, for example, the inconsistent use of end-of-clause punctuation). As we will also see, it is also sloppy in that the relief requested in (a) is fundamentally incompatible with the relief requested in (b) based on the parties' status and character.

8. Just to make things perfectly clear, I'm no fan of Eleventh Amendment jurisprudence on realpolitik, theoretical, practical, or ideological grounds. The Amendment is what it is, regardless of my dislike for the premises behind it. However, existing jurisprudence has failed to interpret it narrowly enough in light of the Fourteenth Amendment's Due Process and Privilege and Immunities clauses in particular and in the context of the Supremacy Clause in general. That, however, is an argument for another time; for the present, I will just continue thinking dark thoughts about the slaveholding origins of the Eleventh Amendment as essentially counting three-fifths of all other claims...
9. New York Times, Inc. v. Tasini, 533 U.S. 483, 498–99 n.6 (2001) (internal citations omitted, hyperlink added); see also U.S. v. Carolene Products, Inc., 304 U.S. 144, 152–53 n.4 (1938) (concerning the scope and interaction of legislation, presumptions of constitutionality, and later-enacted restrictions). That note in Carolene Products has probably been dissected and written upon, by both scholars and practitioners, more than all other elements in that opinion combined... seldom reaching any defensible conclusion that is not subject to further hedging.
10. Unfortunately, this also points out a fairly serious drafting error in the Copyright Act: There is no satisfactory definition — in § 108 or elsewhere — of "library or archives." In particular, it is unclear whether the "open to the public" language in § 108(a)(2) requires "without charge or other payment required for access," "without restriction," and/or "with anonymity." Further, § 108(a) is concerned with access to works... and silent regarding provision of (relatively) permanent copies of particular works that enlarges the number of copies, except by implication under § 108(g). There's no real question that this is something that Congress, and not the courts, must fix.
11. See, e.g., Harper & Row, Pubs., Inc. v. Nation Enters., Inc., 471 U.S. 539 (1985) (holding that an extract from a book of less than 800 words exceeded fair use for that book... but explicitly refusing to establish a bright-line or proportionate test).
12. See, e.g., Crown Cork & Seal Co. v. Parker, 462 U.S. 345 (1983); American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974) (together, holding that the statute of limitations is extended for unnamed classmembers during the pendency of an otherwise-timely-filed class complaint concerning the same legal theory and operative facts or transaction).

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

link to: 08:06 [GMT-6]

Authors' Guild v. HathiTrust:
Just When You Thought It Was Safe to Go Back to the Library

Suing HathiTrust (in essay form)
Proposed Settlement With Google (in essay form)
Suing Google (in essay form)

This is an initial review only of the third segment of the Google BookScan lawsuits, generally known as the "HathiTrust suit" and formally known as Authors' Guild, Inc. v. HathiTrust, No. 11–6351 (S.D.N.Y.) (Baer, J.). (As a side note, this matter was referred to Judge Chin for consolidation with the existing GBS suits, but was rejected as not sufficiently related... and inconsistent with Judge Chin's elevation to the Second Circuit, although the rejection did not emphasize that issue.)

Because I have a lot of gall, I am dividing this discussion into three parts. It is an unfortunate division caused, at least in major part, by a combination of bad drafting in Congress and ideologically directed docket-control measures by the Supreme Court... that, were the same cases being decided today, would probably be decided differently. Thus, this first part and entry will deal with the high-falutin' intellectualness of significant constitutional barriers under existing law to the suit proceeding in this form at all. The next part (which will probably require more than one entry) will deal with the geekiness of civil procedure and the challenges it presents. The third part (again, probably more than one entry) will deal with the nerdiness of the merits of the action, both in theory and as pled.

I. Constitutional Aspects

Constitutionally, this lawsuit is a mess. Part of that is as it should be; part of that... not so much, and resembling Catch-22 more than it probably should. It's actually easier to see the difficulties — as is all too often true in such policy-laden matters — by moving from the back to the front. In this instance, that means considering problems with hauling the defendants into court first, and then the problems with the plaintiffs.

The first, and perhaps most obvious, question is whether a United States District Court located in New York City has the power to hear a suit against the HathiTrust defendants in the first place. This breaks down into two subquestions: Personal jurisdiction and sovereign immunity. The personal jurisdiction question is not nearly as clear as one might think. The complaint names HathiTrust itself and the various regents and boards of the University of Michigan, the University of California, the University of Wisconsin, Indiana University, and Cornell University.¹ Although there is a longstanding doctrine of asserting personal jurisdiction in copyright matters where the harm would be felt,² this doctrine appears only to be asserted against non-governmental actors. Whether HathiTrust or some of its members qualify as non-governmental actors is an open question.³

The personal jurisdiction question, though, would be rather easily dealt with by either a transfer of venue to the Eastern District of Michigan or an original filing there. The fun part is the ability to sue these "arm of the state" defendants in federal court at all. Professor Grimmelmann provides a useful introduction to this morass at a general level. In summary, under the Eleventh Amendment, states (and arms of the state government) cannot be sued for damages in federal court. Under a misbegotten legal fiction known as Ex parte Young,⁴ one instead sues the particular officers of the state agency who have responsibility for performing an "unlawful act" for injunctive relief, but not damages. (This is why Mr. Gideon sued Mr. Wainwright, the warden of the Florida prison in which he was being held, and not the state of Florida itself.) The Authors' Guild did not, however, do so; suing the various boards is not the same thing as suing the officers who make up those boards (I did warn you that this was a legal fiction...).

Ultimately, this all comes down to whether Congress had the power, and appropriately exercised the power if it did, to take away the states' sovereign immunity. Unfortunately for everyone, the Supreme Court has decided that it did not.⁵ Further, this goes well beyond the Ex parte Young loophole; the Courts of Appeals have interpreted the Supreme Court's holdings to bar not just monetary relief, but all relief, against the states under the Copyright Act.⁶

Things don't get much better on the left side of the v., when considering the standing of the Authors' Guild and the various individuals also named as plaintiffs in the complaint. Standing to represent "orphan works" is, as Judge Chin noted when rejecting the GBS settlement, lacking and not even arguable, even though he didn't use the term "standing". The Authors' Guild (and its foreign counterparts) asserts "associational standing" for itself as a representative of interests, but this does not help much. First, associational standing is virtually never proper against private actors... and if HathiTrust and its members are not private actors, they're probably state actors, which just reinforces the sovereign immunity problems. Second, Judge Chin's decision holding that the Authors' Guild cannot represent authors of orphan works as a class representative — and is an inadequate representative for non-orphan works — cuts strongly against its associational standing in a parallel lawsuit based on the same transactions and operative facts.

In short, at a constitutional level there are so many questionable aspects of this case's very posture that I doubt it can, or will, get very far. Judge Chin's closing remarks — indicating that he believes this is properly a matter for Congress — are well-taken.

But is there a way to revise the posture so that it can proceed? Perhaps, and perhaps not. The obvious first attempt would be to file a deprivation-of-property-rights claim in the Michigan courts against the University of Michigan and HathiTrust. Leaving aside the whack-a-mole aspect of this "solution" — Michigan isn't the only U.S. state with a university library system, after all! — this does nothing for the problems with standing on the left side of the v.... and, perhaps more importantly, runs up against a collective-action-of-several-states problem that the Supreme Court has yet to resolve (having punted every time it had the opportunity to squarely confront it). Basically, that problem concerns whether the Eleventh Amendment applies against states acting in concert, or even in parallel without actual intent. It is as much a problem with the drafting of the Eleventh Amendment as anything else; such "interstate compacts" as defendants just were not considered, let alone when it's more a matter of "conscious parallelism" than anything else.

In any event, this is just the swamp. I disagree with Professor Grimmelmann on one thing: The civil procedure is not a mere swamp, but a jungle.

1. See Complaint (Doc. 1), ¶¶ 25–30.
2. See, e.g., MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) (copyright suit against non-US corporation allowed to proceed in California).
3. Ironically, Cornell University is arguably an arm of the state of New York, as it is the land-grant college of New York. Really. Thus, all five of the named universities are state actors...
4. 209 U.S. 123 (1908).
5. College Sav. Bank, Inc. v. Florida Prepaid Postsecondary Education Expense Bd., 527 U.S. 666 (1999); Florida Prepaid Postsecondary Education Expense Bd. v. College Sav. Bank, Inc., 527 U.S. 627 (1999).

   These decisions are arguably part of the Rehnquist Court's long effort to shrink the ever-expanding federal court docket in the face of Congressional intransigience in providing the resources (primarily judges) to handle that docket. This realpolitik view of the "federalist resurgence" was as much ideological as anything else... with all of the attendant unintended consequences.

6. See, e.g., Chavez v. Arte Publico Press, 204 F.3d 601 (5th Cir. 2000) (explicitly considering the State Street Bank decisions cited in note 5). It is not a coincidence that the leading cases concerning this theory, at all levels of courts, arise from the Confederacy; one of the problems with the CSA was that it did not accept the concept of intellectual property rights, and certainly not when asserted against its even-more-sovereign-than-the-present-US states.

Labels: copyright, intellectual property, jurisprudence, publishing

link to: 11:10 [GMT-6]

• The fun and games of figuring out politics in Southwest Asia just got even more fun as King Abdullah — in a speech borrowing more from his religious than his secular authority — proclaimed that women will be able to vote and run for office in Saudi Arabia. In 2015. How they're going to get to the polls in the first place, though, is another question, as there was no sign (and is no sign) that the ban on women driving will be relaxed or lifted. There's a further problem hidden in there, too: Some extreme interpretations of shari'a within the Wahhab tradition would require a woman's male guardian to give her explicit permission to vote... and tell her how to vote... and accompany her into the voting booth to ensure that she does so "correctly" if at all. And that explains why King Abdullah chose to rely upon his religious authority as much as his power as a secular ruler: He knows full well that the right to vote must also be accompanied by the opportunity to vote... as several of his many relatives were educated Over Here and can tell him all about our own civil rights movement. Juan Cole explains more from a purely realpolitik perspective.

  It's an advance, but must also be balanced against the silliness in Qumar Yemen, with its autocratic "president" who is now calling for elections (without promising to abide by them or stepping down to make them meaningful). Meanwhile, in the tradition of dictators-for-life everywhere (and Russian leadership for a thousand years), Putin is going to switch titles (again) next year. Hopefully, this time he'll at least make sure he switches his stationery at the same time... and anyone who thinks this isn't an element of the Southwest Asia nightmare hasn't been paying attention. Since the 1960s.

• On the one hand, Espresso's agreement to handle HarperCollins's backlist with its on-demand machines sounds like a neat way to keep things in print, doesn't it? On the other hand, it very well may (and, based on review of several particular instances, certainly does for those contracts) exceed the powers granted to HC under its license agreements with the respective authors. And then there's the antitrust aspect of the tying arrangement requiring stores to carry substantial amounts of the HC backlist in order to qualify... which will force material from smaller presses out of those stores for want of space and capital. Of course, PW isn't even hinting at that part of the story.
• The EU has now mandated that copyright in the EU in musical performances will be extended from 50 to 70 years. As this Grauniad article notes, there's not much benefit for the vast majority of artists whose copyrights have been extended... because the directive completely ignores the business realities of the recorded-music segment of the entertainment industry. Just like almost all other aspects of European copyright theory.
• An internet feline wonders about the viability of e-book libraries at the IPKat. This is, of course, the inquiry HathiTrust should have made before it started asserting that non-orphan works were orphans and therefore ripe for its own exploitation... leading to the interesting question of whether asserting that a non-orphan work is an orphan constitutes any kind of unfair trade practice or trademark dilution/disparagement, in addition to the ethical dimension of calling into question the research capabilities of an organization of research libraries.
• Last for today, but far from least, I'm giving you a homework assignment: Go read a banned book for Banned Books Week. You'll be glad you did... and it'll piss off someone who needs to be pissed off, somewhere.

Labels: civil rights, copyright, culture, internet, life, politics, publishing

link to: 15:00 [GMT-6]

• There's a purported list of those who influence what gets read in England on the Grauniad's website. The substance is quite simple: Only a very small minority — about 22 or 23 by my count — are people who see books in manuscript form as submitted by the authors. Instead, the vast majority of these people are in the sales-and-distribution chain, and do not see the raw material input (or, all too often, the finished products) for themselves, but that's for another time.

  Somewhat ironically, for a list pertaining directly to the written word, the list is not in written-word form; it is, instead, a purportedly interactive display of photographs from which one can draw further data with a mouse. This says more about what "influence" appears to mean than does the makeup of the list itself... particularly as the design chosen does nothing whatsoever to illustrate actual relationships among the underlying data, presuming that there are any that don't properly belong on the society page.

• Still clearing that conflict on the HathiTrust/Google Bookscan lawsuit analysis, but I expect to clear it today or tomorrow. This is part of the problem with being a "hired gun" type — one can never tell when a consultation is going to get in the way of the news. Or, for that matter, vice versa. Let alone a blawg.
• Professor Pollack makes some extremely interesting and perceptive comments concerning the NCAA and "student-athletes" that I believe do not go nearly far enough. I was a college athlete myself... at a Division III school. My oldest son was/is a college athlete below varsity level at a Division I school (but with pretty significant interaction with the varsity), and I was a graduate assistant at that same university (right across the street from the football stadium). The treatment of "student-athletes" and of graduate student assistants/fellows is closely related, and it is not in the immediate unenlightened financial self-interest of the American university system to do a damned thing about it. (N.B. Anyone who says that American universities are inherently and uniformly "liberal" has never examined their labor-relations records...)

  This is strongly related to the collective-action problem for "independent contractors" — not just authors, artists, etc. who might read this blawg, but the small consultancies and businesses that (according to Heffalump ideology) drive "job growth" in the postindustrial economy — and their inability to equalize bargaining power with behemoths like health insurers, courier services, etc. Of course, that's not something that the current holders of political and economic power want examined too closely, either.

• Leave aside substantive guilt for the moment, or the ethics of having any kind of death penalty. The execution of Troy Davis demonstrates why I — as a former commanding officer, dammit — "shall tinker no longer with the machinery of death." This nation (which has a far better record than most) has demonstrated that it cannot establish a system of imposing state-sanctioned death upon an individual without fucking up in either fact or appearance more often than acceptable. Leaving aside the racial/bigotry/class warfare components of the problem, which one really cannot do, the fact that too damned many of the people involved in the system are subject to popular elections for one of the two decisions a government must make that must under no circumstances be committed to populism/mass hysteria/electioneering/whatever you wish to call it makes our administration of the death penalty inherently unsafe at any speed... or with all deliberate speed. It is not a coincidence that the states with the most-significant known problems with death-penalty administration are all majority-agrarian.

  Ultimately, actually "doing justice" is not enough. The State must be seen to do justice. Regardless of whether Davis was "actually innocent" or not; or whether he was guilty and got the chair substantively due to skin color/social class/whatever; nobody who has been paying any attention at all can really claim that the State of Georgia has been seen to do justice in his case. And that's just not good enough.

• And closely related to those issues, Bruce Schneier offers three concerns for present and future information security. One may well disagree with how to answer the questions implicated in those three concerns; one cannot, however, evade answering those questions in the first place.
• Marginally sane ideologue Krauthammer claims that Obama is returning from "phony centrism" to (purported) social-democratic roots. Snort. Krauthammer is one of those whose ideology labels anyone not in the archneoconservative camp as a "liberal," and in particular has conveniently forgotten (or never considered) all of the parts of Adam Smith and John Stuart Mill and John Locke that draw a line between individual transactions and acceptable systemic behavior. Obama's centrism is far from phony; any increase in purported social-democratic flavor in a few of his initiatives and/or his rhetoric merely changes his default position by about four points on a one-hundred-point scale. Of course, to Krauthammer and his ilk, any change at all away from hard right is unacceptable and a significant threat to baseball and apple pie; but then, I believe that a threat to baseball is a good thing. The key distinction, though, is this: Krauthammer and his ilk uniformly have no real experience of immersion in or around the human cost of unenlightened self-interest. Obama has at least some of that experience... and "some" is enough to move him to the center.

Labels: civil rights, copyright, intellectual property, jurisprudence, military, politics, publishing

link to: 12:23 [GMT-6]

• Congratulations to this year's MacArthur Fellows. It's always somewhat amusing to try to tease out a theme from the "genius grant" panels each year — it's almost as much fun as trying to figure out what the pluralities that elect political figures in this country (thanks to our poor voter turnout) really want. This year, one thing does jump out: Michigan. For whatever it's worth, Michigan was tied for Harvard for most affiliations (three) among the twenty-two recipients...
• Is shifting relative tax burdens from the poor to the rich "class warfare" or, as the President puts it, "math"? Arguably, it's both; every tax system is inherently about some aspect of class warfare, and in this instance it's really the difference between "freedom fighter" and "terrorist." Perhaps the real question is whether — as the then-President and then-First Lady proclaimed — the rich are Contras too... with all the baggage that implies.
• "Don't Ask, Don't Tell" has now died a long overdue death. Like a parade of zombies, though, this kind of religious bigotry will keep shambling through the US military. One of the worst decisions that the military made in the twentieth century was to put the US Air Force Academy in Colorado Springs, then already a hotbed of fundamentalist nonsense (but with really, really attractive real estate prices), because even when the zoomies manage to get off-post they run a fundamentalist gantlet just to go shopping. But then, the military academies really had no continued justification after at latest the Vietnam era, and in reality the GI Bill that sent a generation to college and created an expectation that the next generation would go, too.
• And so the Tenenbaum dispute heads back to the trial court... on civil procedure grounds, as expected. This is the "but I'm a poor grad student and can't afford to pay statutory damages to the mean record companies for my copyright piracy" case. The twist in this opinion is that the Court of Appeals essentially said "well, Congress did it, so Congress is gonna have to fix it — not the courts, unless the courts determine under traditional common-law approaches that it was improper."

  Tenenbaum's position was doomed from the start, because the Court of Appeals is correct. So long as the damages model permits (not mandates) a result that is not constitutionally excessive, the law of remedies (a subset, in most ways, of civil procedure) does not permit an attack on that model; instead, that's a matter for Congress, which established the model in the first place. Existing law does allow the aggrieved miscreant to attack the particular award for the particular way it was created... under a standard of whether that particular award "shocks the conscience" in a manner that exceeds what the Constitution permits as applied to the particular facts of the particular case. This allowable attack, however, is not what was at issue here; the parties below screwed up, and led the judge to screw up, by making a facial attack without an adequately considered as-applied attack. Thus, they get to litigate it. Again. When they should have done so the first time.

• Over at the grievously underappreciated IP Finance blog, Mr Wilkof ponders how to price e-books. He reaches the same conclusion I have: Nobody knows because the underlying data is so screwed up... and any proclamations otherwise, by anyone, are fallacious attempts to create an all-encompassing model based upon (at best) anecdotal instances over extremely limited timeframes.

I'll have specific comments on the latest Googlescan shenanigans once I clear a conflict. I had them all written up to post over the weekend and then got a phone call with a consult request...

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

link to: 14:10 [GMT-6]

Evil, that is — if you're Google.

Thanks to yet another complaint by the Authors' Guild claiming to represent authors who cannot qualify for membership in the Authors' Guild under its own rules — this time, against HathiTrust — and the results of this morning's status conference in the GBS matters before Judge Chin, there's a lot to chew over. Rather than do a formal update to the GBS thread, I'm just going to offer a few observations here, as there's more news expected in the next few court days which may well require me to reorganize my GoogleScan presentation. In no particular order:

• OK, I've read the summary by Professor Grimmelmann's students. What does it mean? That we're all in for a good time watching the lawyers pontificate endlessly and largely meaninglessly... and that Google has succeeded in the primary goal of all class-action defendants: Splintering the opposing class so that the small groups can be defeated in detail. Basically, what I expect to happen will look something like this, although not necessarily in this order:
  • The publisher-plaintiffs will reach a partial settlement with Google, and will file their own class-certification motion. That motion will, of course, ignore the Rosetta Books issues (whether the publishers have any claim to electronic rights in the books they published for which they did not obtain and retain the entire copyright), because it's not in the publishers' or Google's interest to litigate that issue or have any agreed precedent on it.
  • The Authors' Guild will continue to pretend that it represents all authors, and will file another class certification motion... which, in turn, will require more opt-outs and/or opt-ins, even if it is not related to a settlement. It seems highly doubtful that they'll be able to reach a settlement. That, by the way, is a good thing; this litigation has been misconceived and mismanaged from the start, beginning with the selection of counsel and going rapidly downhill from there.
  • I suspect that the publishers will continue to rely upon their existing complaint. It's about 50-50 as to whether the Authors' Guild gets its collective head out of its collective post-digestive orifice and issues a new complaint at all... and even if it does, I believe that there's less than a 10% chance that such a complaint would start over and establish a coherent, comprehensive basis for a coherent, comprehensive resolution.
  • All of the parties are going to mischaracterize legal arguments as "expert opinions." Sad to say, this is a given, particularly due to who has been identified previously in papers in this matter as appearing as an "expert witness." This is also an explicit and egregious violation of the Federal Rules of Civil Procedure that is not well considered in front of Judge Chin; I've seen judges smack down counsel who tried to use an "expert report" as a way to get a brief longer than allowed by the rules in front of them. Based upon the writing qualities of the proposed settlement agreement, brevity is not one of counsels' greater failings...
  • The next truly significant "deadline" for those playing along at home is in early January. There will be things happening before then, but nothing that will require absent authors with claims to do anything before then.
• What's this about suing libraries? No, not all libraries; just a consortium of research libraries. I'll have more to say specifically on this over the weekend. For now, what authors need to know is that the Authors' Guild has, yet again, proclaimed that it represents all authors, and this time has attacked the library-partners of Google from the Google scanning program for their plan to make some of the scanned works available through the library system.

  Legally, this is much more complicated and nuanced than it seems. To begin with, libraries are "special" under § 108 of the Copyright Act (now, if the Copyright Act only provided a definition of "library"...). Then there's the specter of State Street Bank that may prevent the suit from being heard at all, along with questions of running of statutes of limitations, proper scope of potential relief, and all kinds of purely civil-procedure stuff that really gets my civil-procedure-geek heart racing. If, that is, I have a heart. Only then can we even begin to consider the merits of the copyright theories, the complaint, etc. In short, this is not going to be simple.

  Authors do not need to worry about this particular suit now. It certainly establishes no relevant deadlines — not even relevant deadlines for intervention, as there has as yet been no responsive pleading or motion for class certification. At least this is not the same lawyers as are running the GBS action for the AG... or not on the caption, anyway.

• What's up with this "orphan books" thingy and the Authors' Guild's "refutation" of it? In the end, the HathiTrust (anti-library-consortium) suit is about the fifth fair-use factor — the one that is not in the statute. It's not about the purpose of the use, nature of the works, the amount of copying, or the effect on the market; it's about administrative convenience. The unstated case in favor of HathiTrust's action is that there is a limit x to how much investigation a republisher has to do. Although the Copyright Act is founded on strict liability, one must remember that "fair use" — even in the statute — is an equitable doctrine that developed over time as judges determined what seemed a fair/unfair result for particular kinds of "copying", particularly in light of the fact/expression dichotomy and the First Amendment. That's basically a longwinded way of saying that the very nature of the "fair use" defense is at odds with the absolute protection at the core of the Copyright Act.

  And it gets better. This is why Rosetta Books matters. In this particular context, the libraries do not want to search down individual authors; they want to search down print publishers, at most. Finding the print publisher provides protection to the electronic republisher, though, if and only if the print publisher had the right to deal with an electronic republication at all. And, thus, Rosetta Books... in which the trial court found that the word "book" in pre-1992 Random House contracts did not include electronic texts. (Admittedly, there was a later settlement that Random House will no doubt claim wiped this off the books as precedent of any kind, puns intended.)

  Authors who have fought e-piranhas on the Big Brazilian River — pirate e-editions of their works — will recognize this problem. Amazon has a policy — which they will not admit to in their statutorily required takedown policy, but becomes both very apparent and explicit when one actually issues a takedown notice — of dealing with publishers in preference to (and often to the exclusion of) the actual copyright holders in the works. Once again, "administrative convenience": Dealing the the publisher provides an administratively convenient single point of contact for a larger basket of works, and further allows Amazon to point to that publisher as the source of any damages/revenues due for an infringing edition. It's the equivalent of the pawnshop owner saying that he need not turn the proceeds he got for grandmother's wedding ring over to the rightful owner of the wedding ring, because Amazon was supposedly a bona fide purchaser for value; instead, one must find the thief and get the money back from him/her.

  What this all implies is that the only administrative convenience that matters is that of the exploiter(s), whether or not they is/are infringing. Again, this is inconsistent with the entire basis of the Copyright Act. On the other hand, so are contemporary publishing contracts that try to treat an author's agreement for a particular work as a sale of rights, and not a mere license that transfers a right and not an ownership interest.

Labels: copyright, culture, intellectual property, internet, law practice, publishing

link to: 18:30 [GMT-6]

Here's a thought for everyone who doesn't need a physical memorial, or care whether there's a mosque within a kilometer of the World Trade Center, or need to see some field in Pennsylvania... and worked the piles (and files) anyway.

Labels: culture, military, politics

link to: 15:44 [GMT-6]

• Virginia v. Sibelius, No. 2011–1047 (33pp, 15 of which are caption material)

  Holding: Virginia does not have a sufficient interest in its state law providing that no one "shall require" individual purchases to have standing; vacated with directions to dismiss for lack of SMJ.

  Comment: This one is a bruised-or-no-brainer, which is all too appropriate to too much football these days...

• Liberty University v. Geithner, No. 2010–2347 (140pp)

  Holding: The Anti-Injunction Act, 26 U.S.C. § 7421(a), "strips [the federal courts] of jurisdiction" to hear a pre-enforcement action seeking an injunction against an "assessable payment" required by 26 U.S.C. § 4980H and potentially imposed on "large employers" whose employees need further assistance with health care than provided by the employer. Vacated with directions to dismiss for lack of SMJ.

  Comment: This one is much more dangerous, because the reasoning is not quite consistent with some associational-standing decisions. Although it seems to be limited to pre-enforcement actions against a required payment to the Treasury for a hypothetical future condition precedent, I think this is a slightly overbroad reading of the AIA's prohibition on injunctions against tax collections... and I'm still to be convinced that the AIA is itself sound policy or fully constitutional itself (admittedly, it's a close call not well presented on these facts).

  The theoretical problem with the AIA is that it runs headlong into a long line of cases requiring a government actor to offer a predeprivation hearing before taking the right/property of a private citizen. The distinction made in the AIA is that it is purportedly limited to "taxes." This distinction, however, raises more questions than it answers. First, why are "taxes" special in this sense? One might argue that they are so central to the function of government that they must be treated differently from other ways that the government might take a right or property. That may, in fact, be the "right" result; it is not, however, so self-evident that it can (or should) be accepted without examination. More importantly in this case — and the reason that it's so damned long and generated a dissent — is the question of whether calling this "assessable payment" a "tax" because it appears in the Internal Revenue Code and is administered by the Treasury seems nearly the height of formalism, in the manner of defining "glory" as "a good knock-down battle." On the other hand, it also seems inane to pick on this particular bit of formalism in the Internal Revenue Code as somehow too much; consider, for example, the definition of "capital gain" (§ 1221) is less than crystal clear, less than reflexive, and less than logical; it seems to largely work, though.

  All of that said, if this panel had reached the merits, there are two clear votes (the dissent and the concurrence) to uphold § 4980H as a proper exercise of either the Commerce Clause (dissent) or tax-and-general-welfare (concurrence) powers of Congress. The plaintiffs would make a big deal about this concerning an involuntary market transaction, but they didn't think very far ahead when they raised that issue... because it applies at least equally to any objections made by taxpayers to government payments to religious groups and institutions like the lead plaintiff itself.

The next stop is going to be the Supreme Court. I think there is a high probability that the Court will sit on the petitions in these matters until a Court of Appeals fully rules on the merits (the Sixth and Eleventh Circuit rulings were only partial)... unless the rest all punt on jurisdictional grounds, which is a distinct possibility (but somewhat unlikely, particularly given the Tenth Circuit's history of pushing the envelope on subject-matter jurisdiction).

The political meaning of these decisions, taken together — in the broadest sense of "political" — is that private actors, and even subordinate political subdivisions, must be discouraged from using the courts to undo legislative acts with which they disagree, except in the most egregious circumstances. For something that is merely a matter of policy, that is, the place to fight the battle is the legislature. That the plaintiffs in the respective cases would recast a policy disagreement as an infringement of rights says a lot of very unfavorable things about them as "sore losers." Face it: Nobody is going to be 100% satisfied all the time in a democratic or other representative system that is more than mere window-dressing for oligarchy. In short, there will always be "losers" in policy battles. I'll say little more about the wretched record of the particular lead plaintiffs in these actions regarding noneconomic rights that greatly exceed any non-self-serving definition of "policy"... but I could throw out a couple of hundred citations to their respective litigation histories, beginning with Loving v. Virginia and going downhill from there.

Why does this matter to writers? Well, gee, how about writers' need for healthcare? More directly, the "assessable payment" scheme in § 4980H just might have an effect on medium- and larger packaging mills, because it's arguable that authors who are otherwise freelancers but are doing only work for hire for those packaging mills are "employees" under the prevailing fifteen-factor test. (I have three packaging mills specifically in mind here.) And it's not just writers, either; consider the production line that produces Thomas Kinkade's dreck...

In any event, it matters. It's too bad that I think this punt is going to be called back for illegal procedure without a ruling on the merits to compare it to...

Labels: civil rights, culture, jurisprudence, politics

link to: 10:46 [GMT-6]

• Congratulations to the finalists for this year's Booker Prize for best UK-citizen-authored novel. It's an interesting group... and, unlike over here, there's actually "controversy" at "omissions" from the slate. OK, it's a pretty pathetic excuse for "controversy," but it's more than happens over here, even for popular-vote-nomination awards with pay-to-play voter pools.
• Pharyngula notes the dubious relationship between elected-official piety and drought.
• Some interesting musings on the local influence of IP piracy point out, however indirectly, how insane the continuing emphasis on territorial rights in the arts is in an era in which the entire world is physically less than a day away. This is an example of the downside of "settled expectations of the parties" in contract law: The context has changed so radically from the early twentieth century (when the terms of publishing contracts and publisher weltanschauung — for print, for music, for film, for everything — became etched in stone) that continued reliance on ephemeral physical borders as control points for the arts is counterproductive.
• Last week, Dean Wesley Smith had two rather interesting posts on topics of interest to writers. The first is an homage to Heinlein's "rules" for writers. I'm going to focus on the two of the five rules that are excrutiatingly wrong, except in the tiny little universe of Heinlein's own preexisting success: Numbers 3 ("You must refrain from rewriting except to editorial order") and 5 ("You must keep it on the market until sold"). These rules are wrong because they ignore the conflict among artistic vision, commercial acceptability, and authorly ego. They might work for that extraordinarily rare author whose artistic vision, commercial acceptability, and authorly ego form a single circle of 100% overlap from all perspectives. Heinlein himself was not that writer, no matter his ego nor his inflated reputation among a certain subset of fandom (Exhibit A: every novel he had published, all of which — specifically including the two best, Double Star and The Moon Is a Harsh Mistress — would have benefitted from substantial further rewriting). The key assumption that Heinlein makes — and it alters the meaning of each of the five rules, but these two more than most — is that "You, as a writer, must already have a commercially valued, consistent brand and identity before you can effectively apply the following rules." That is, the rules work only for writers whose shopping lists scribbled on napkins have commercial value due to their authorship. That's not to say that there's no value at all in these rules, even for beginning writers; only that they require application of some artistic sense and literary and commercial analysis. At some point, when too many readers are expressing the same sort of problem with your manuscript, it needs to be rewritten. At some point, it makes no commercial sense to continue circulating a manuscript that is not getting licensure offers.

  I'm much more enthusiastic about debunking the myth of the "hot topic"; if anything, Smith does not go nearly far enough. Not only is every writer unique, but so is every reader... and the quick-buck attitude of publishing conglomerates (both for books and for periodicals) does not accurately reflect reality. Consider, for example, the income-stream history of The Hobbit and The Lord of the Rings, or the cyclical sales- and library-circulation history of Slaughterhouse-Five and of military science fiction. Then remember that if you begin writing today, your manuscript will not be complete for t... and fashion can change in that era. Now, if you're focusing on commercial publication for that manuscript, add a minimum of 14 months to t for the publishing cycle — and it'll be that little if, and only if, the first editor who is sent the manuscript snaps it up and fast-tracks it; 36 months is much more likely, unless you're already under contract for "untitled manuscript in field x" as part of an option agreement. We can't even predict the median length of skirt hemlines or the "hot" colors for interior decoration that far ahead, let alone something as diverse as the arts... and then someone like Joanne Rowling comes along and makes something ice-cold into something red hot.

• Finally, after a thoroughly dispiriting summer, a short thought on democracy.

  Democracy does not merely tolerate dissent; democracy is founded upon, and celebrates, dissent.

  Both major parties in this country — and political parties throughout the world — don't get this. The objective of a democratic government is not to crush your enemies, see them driven before you, and to hear the lamentation of their women. It is, first and foremost, to govern — not merely to attain power... because in a democracy, change is coming, and those driven before you now will be driving you before them at some point in the future. Doing unto others before they do unto you might work for Macchiavelli's princes, but one must remember that governance at that time was a matter of proper ancestry alone.

  So, I caution voters: Always consider that the electoral alternative being offered to something that is less than satisfactory — and today, it's almost always a binary alternative and not a nuanced consideration — might actually be worse. I'm very unhappy with the centrist Obama administration; I'm even more unhappy with the prior administration (and, for that matter, a legislature and judiciary) that is/was to the right of center, and largely focused on careerism and cronyism instead of governance or service. The obvious rejoinder that "well, we should just shrink government instead!" fails if one knows anything at all about company towns, because for all of the faults of democracy — and, in particular, all of the faults of our implementation of it — government, even when less formally accountable than a democracy of any sort, is more accountable for missteps than is anything based either solely upon the market or upon highly advantaged initial capital positions, such as any "libertarian paradise."

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