link to: 13:15 [GMT-6]

Boo!

 

I'm knife-down in the virtual jack-o-lantern at the moment dealing with deadlines. I really have done the next post on the HathiTrust matter, but it needs one more pass and paying clients come first...

In any event, I do need to put one rumor as reported to me from over the weekend at WFC out of my misery. Contrary to statements made by someone who should know better, it is simply untrue that most (for any reasonable value of "most") of the major book distributors (for any reasonable value of either "major" or "book distributors") in the US and UK are "operating in bankruptcy." Simply put, there have been no such bankruptcy filings in the US (or insolvency proceedings or requests for winding-up orders in the UK) regarding any of the top four in either jurisdiction. But:

• If the speaker meant "perilously close to bankruptcy and probably headed there," at least one of the four US "major book distributors" had its best year in the last decade last year, and another was close.
• If the speaker meant "operating under a 'bankrupt' business model," that speaker needs to learn not to misuse technical terms. It may not be defensible in isolation... but the problem is that the various barriers to entry will keep it operating long after its internal economic efficiency, absent oligopoly rents, would have sent it to bankruptcy proceedings in the cold eye of economic efficiency (but, one must note, did not).
• If the speaker meant "financially nonsustainable," then the speaker needs to somehow account for all of those oligopoly rents being imposed and retained by the distributors. We could begin with their rampant mistreatment of small accounts, like independent bookstores and authors buying for resale, combined with their frivolous filing of collection suits that often result in default judgments...
• On the other hand, if the speaker meant "morally bankrupt," that's no surprise at all... as to virtually the entire publishing segment of the entertainment industry.

Labels: publishing

link to: 10:20 [GMT-6]

Still Life With Link Sausages

 

The unlaid plans of mice (and men) aft gang awry, as in the last few days here at Casa de Lawshark. Two sleepless nights in the last four, an inquiry on HathiTrust that I have to finish up (hopefully today) before continuing to blawg on that monstrosity, and the usual variety of nonsense make for a particularly underdone platter of link sausages.

• A blog entry hosted at the LAT this morning discusses one of the many, many holes in the Copyright Act: droit de suite, the collection of fees from later sales of pieces of art for the benefit of the artist similar to royalties from the sale of copies of books or recorded music. Interestingly enough, the piece links to two law review articles... and commendably to the two most-relevant ones, not just two by random California law-and-culture vultures. (Yes, they do exist; in fact, there's a law school in the LA area with a near-plurality of faculty fitting that description!)

  I do beg to differ with one aspect of the prevailing analysis of droit de suite, though, and recorded music provides a hint of the problem. The Copyright Act concerns itself with the right to copy; everything else in and around it is (or, to the cynic, is peripherally related to) concerned with ensuring that such a right — but not obligation — remains with the creator of a covered work. Musical compositions are a special case, though; the statute recognizes that there's a difference between a performance of a piece of music — something that can be technically copied only for the ear — and the composition itself. Unfortunately, the cooptation of ASCAP and BMI by recording companies, or by "music publishers" with substantial recording interests, has too often led to improper conflation of these distinct interests. One might argue that book publishers are trying to do the same thing with e-book rights, but that's neither new (given publishers' insistence on controlling derivative works like audio rights) or quite the same thing (as arguing over the form of a reproduction is still an argument over the essentially-unaltered reproduction).

  In any event, it's a fascinating blog entry that fails to grapple with the "copy versus original" problem at the root of droit de suite... which is not surprising, as droit de suite itself fails to grapple with that problem, largely by assuming it away based upon technological copying capability at the time droit de suite (and related measures, such as the California provision being discussed in the blog entry) became committed to print. Then there's the philosophical question of the relationship between a copy of a work of visual art and the "original"... and whether that matters. As an obvious example, comparatively few people have ever visited the Museo Nacional Centro de Arte Reina Sofía in Madrid and actually seen Guernica; the "meaning" of the original, though, does not seem to relate all that closely to, or be limited to, a quarter of a square meter of canvas.

• There's a much deeper question of the relationship between money and the visual arts to consider, too — and the money-laundering aspect "Prospero" evokes is just a window into "patronage." Authors need to have at least some awareness of this, too, because many current publishing contracts with their excessive noncompete clauses and attempts to take ownership of the author's name come close to reestablishing patronage in a particularly vile form, as Kiana Davenport has discovered.
• Yesterday's NYT included a thought-provoking article against "simplification" as a universal lifestyle in response to mental health conditions that desperately needs consideration in the American education system. It is perhaps easier to consider in the context of a more-visible, physical disability. A world-class wheelchair rugby player is simultaneously disabled and gifted... but the American education system, even more so than the rest of the American politicoeconomic structure, denies that possibility, instead demanding that one be considered either exclusively disabled or exclusively gifted in order to obtain any of the benefits of/for that status. One might wonder if Jared Loughner's personal history contains any consequences of that false dichotomy (or "trilemma," as the "normal" region is also involved in the consideration); I simply do not know, but neither would I be surprised, as implied by a few passages concerning Ms Myrick's own situation and Ursula K. Le Guin's story "Vaster Than Empires and More Slow."

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

link to: 13:01 [GMT-6]

Dead Duck Link Sausages

 

Q'daffi Duck, that is...

• One of the more odious dictators in recent years — and that's up against some pretty stiff competition — has been "confirmed dead" with cellphone pictures published in close to real time at the Grauniad. Good riddance to Q'daffi Duck; I can now cancel my vacation plans for El Dorado Canyon. And, hopefully, we can put the Pan Am 103 "prosecution" to rest, too; if there's one thing that is certain, it's that we can't be certain.
• Meanwhile, some sore losers across the Pond continue to argue that the American Declaration of Independence was unlawful — ignoring both that history (and therefore legitimacy) is written by the winners, and that the British hegemony in North America was primarily a result of conquest (not just of the natives, but of Britain's erstwhile "allies" in the Netherlands). Too, there's that whole "taxation without representation" issue that masks the relationship among nepotistic political succession, dictatorship, and tyranny...
• ... but it sure beats arguing about Ireland. And potatoes.

  If there's a problem with potatoes — and, in particular, with potatoes in school lunches — it's with how they're prepared. Given enough stale hydrogenated oils and salt, anyone can turn a nice piece of fish or head of broccoli into a nutritional nightmare. I'll take dum aloo any time — in just about any variation — in preference to oversalted freedom fries.

• I have two responses to the dubious announcement by S&S that authors will have direct access to their sales figures.
  • The short one: GIGO.
  • The long one: In the past decade-plus, I have either directly handled or consulted on a number of S&S-based royalty reporting disputes, which are based (purportedly) on those very same sales figures — a population sample sufficient to support statistics-based inferences, whether measuring by individual works or by authors, and not confined to any single imprint of the S&S empire. In every single instance, I determined to my satisfaction that the royalty statements were misreporting sales to the author's substantial disadvantage... and this conclusion was eventually conceded by S&S in a significant minority of those instances, and implicitly conceded in another significant minority of those instances by changes in the course of dealing. The inference that I would invite is that it will do authors little good to have direct access to such flawed data — except, perhaps, as a floor of what the conglomerate is conceding.

  Authors deserve — and should demand — more R-E-S-P-E-C-T than this. (We'll leave aside that it's arguable — under the correct legal framework, treating a publisher-author transaction as a license and not a sale — that authors are already entitled to better under the most conservative interpretation of contract law.)

• I'm going to mildly object that the so-called Mississippi "Personhood Amendment" provides greater rights to fetuses than its proponents would — and in fact do — provide to
  • "illegal" immigrants (compare to the second link sausage on this platter, if you dare);
  • non-christians in general, and non-protestants in particular;
  • women, or in any event female fetuses;
  • the melaninically-enhanced; and
  • victims of sexual misconduct that result in pregnancy,

  although its proponents will no doubt claim that I'm distorting things. I also mildly object that the "personhood amendment" movement is entirely inconsistent with supporting capital punishment by an inherently flawed system, but I think that objection won't get much more attention.

Labels: culture, jurisprudence, military, politics, publishing

link to: 11:33 [GMT-6]

Drive-by Link Sausage Shooting

 

Life has again intervened, and these link sausages seem to be firing blanks during their drive-by shootings...

• GBS Update: The Authors' Guild filed a fourth amended complaint (PDF) last Friday that utterly fails to repair most of the problems with the existing complaint... and adds a few more of its own. Most notably, the AG has not changed its fundamentally flawed analysis of the copyright issues; has not added sufficient representation for adult trade fiction, and more particularly for commercial-category fiction; etc., etc., etc. It appears that the AG and its lawyers feel constrained by previous strategy and stated theories.

  Of more amusing interest, the complaint has now explicitly removed foreign authors and continues with its restriction to registered works, without explicitly disavowing purported representation of orphan works. So I guess they really were constrained by previous (mis)analysis...

• I'll have more on the HathiTrust matter in the next few days, after I work my way out from a pile of Stuff and deal with remora Stuff later this week.
• Meanwhile, one must laugh and groan simultaneously at the latest administrative glitch for the National Book Awards. This isn't the first time this has happened; it won't be the last; and, as in academia, the politics are so vicious primarily because the stakes are so low.
• Yet another missive from the Department of Mistaking the Artist for the Work: A misguided op-ed in the NYT claims that the latest H'wood conspiracy-theory film about Shakespeare somehow harms the plays and sonnets themselves. I'd say "hogwash," but that insults the process of cleaning pigs. Sure, if Anonymous somehow changes perceptions of the auctorial intent in Shakespeare's plays and poems, the beginning point for facile ninth-grade analyses of the lesser plays found in the high-school curriculum might move a few inches closer to Oxford than to Stratford. The play's the thing in which to find the conscience of the reader/audience — and although not all roses smell as sweet as any other, that beginning point matters far less than where we end up, as Mary Ann Evans and Eric Blair could tell us.

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

link to: 11:44 [GMT-6]

Link Sausages Take in Fluids

 

A lingering case of the 'flu can sure infect the link sausages. Don't worry, though — this batch was started afterward.

• I suppose I'll get this over with up front: I come not to praise Steve Jobs, but to bury him. And his cultural imperialism. (Remember, I was building computers before there was an Apple.)

  If there is one thing that Jobs should be known for — but is not — it is his championing of closed systems based upon his view of proper Design (and Control of the User). On the Macintosh, recall the sealed cases in an era of hobbyist homebuilds; the one-button mouse that persists to this day; the refusal to accept already-established standards, such as floppy-disk formatting and keyboard conventions (some of us, after all, are touch-typists); the file system that breaks files into multiple parts; and, perhaps most egregiously, the never-trust-a-user-to-know-what-the-user-wants nature of the Macintosh OS itself. Similarly, for the iGadgets, consider all of the new and incompatible media formats demanded by Apple devices, primarily to prevent people from accessing data not obtained through Apple itself... and the implicit disdain for literacy in way the interfaces denigrated word-orientation in use. Those techie gripes pale, though, compared to the sheer arrogance and self-serving nature of his quarter-century-long struggle to not just compete better, but avoid competition at all, through closed systems... which essentially denies the distinction among hardware, software, and data. Example: The public release of the trailer from The Avengers today in QuickTime format — the page for which, unlike releases in DIVX and Windows Media format, refuses to acknowledge the existence of compatible players and demands download of QuickTime (and the iTunes store, and oodles of crapware).

  I do not rejoice in the death of any human. I do, however, hope that Jobs's departure will — eventually — lead to less arrogance in Cupertino. The Lords of Redmond have, at least, demonstrated more (not nearly enough, but more) willingness to adapt to market demands and individuality than that.

• Amusingly, there's a running battle between two insular institutions about the viability of the "creative class" that by its existence demonstrates that they're both wrong. On the one hand, the white-elitist-techie Salon claims that "The creative class is a lie," only to be met with objections from Atlantic Monthly that "The creative class is alive." Of course, they're both missing the point entirely, which is not at all surprising given the cultural imperialism and arrogance of their respective urban locations (Salon believes there is no civilization east of the Cascades/Sierra Nevadas, while Atlantic denies that there is any west of the Hudson).

  The initial impulse of creativity is not economic in origin. Economic support certainly sustains creativity, but does not define or (pardon the pun) create it in the same way as it does merchant banking or farming; Lee Goldman wisely objects to putting the publishing cart before the storytelling horse, and he's in TV! It is entirely meaningless to speak of a "creative class" in the same terms as infected by Marxist (and neoclassical) appropriation of the term "class". This is, perhaps, most obvious among college undergraduates — the "creatives" are far more akin to particular sororities and fraternities than anything else, even though sororities and fraternities together were the real class definition. Walking through Malinckrodt on the way to class meant playing "spot the dancers" with their legwarmers and tights in the same way as one played "spot the Ape" with their AEΠ uniform t-shirts; but there was no cohesive origin to these groups. Trying to pretend that there is for the convenience of manipulating the group as a whole is about as likely to be successful as herding cats.

• Here's a missed irony: In the NYTBR Alexandra Horowitz wonders "Will the E-Book Kill the Footnote?" without grasping what the footnote is: Preelectronic hypertext. I'll leave aside her throwing away of the prevalence of footnotes in legal writing — if anything, there aren't enough footnotes in legal writing, as anyone who has struggled to get from one end of a sentence padded out with string cites could attest — and just object that her piece neglects the course of footnotes in seventeenth- through nineteenth-century works (Swift being an obvious example) and how that evolved into the narrative aside. Then there's the fact that most people these days read the NYBTR online in HTML...

Labels: arts, culture, internet, life, politics

link to: 11:10 [GMT-6]

Ring Bologna Is a Link Sausage

 

Just one great big ring sausage on the platter this morning: The European Union has destroyed the concept of territorial rights in copyrighted material, to which I say "good riddance."

And it's all thanks to a combination of football (the real kind), pubs, and Rupert Murdoch's greed. Schade.

Today's ruling in Football Association Premier League Ltd., et al., v. QC Leisure, et al., No. C–403/08 (ECJ 04 Oct 2011) arose from a pub owner's disdain for the high license fees charged for satellite broadcasts of English football matches — and particularly of the enormous surcharges for pubs, well above the still-extortionate sums paid in private homes. In the UK, those sums are paid to Sky Sport (Sauron Murdoch, through intermediaries, owns a de facto controlling minority interest), above and beyond the TV license fee, because Sky Sport has negotiated an exclusive contract with the Premier League to distribute English-language broadcasts of Premier League matches in the UK. Publican Karen Murphy got a far-less-expensive decoder for Greek broadcasts and used it instead, apparently turning down the volume and playing a radio simulcast for her patrons. Naturally enough, the Premier League and Sky sued.

Those who have been following this blawg over the years will recall that I've claimed for quite some time (relatively recent example) that territorial rights to identical goods are dead in the EU, based on otherwise-unremarkable decisions concerning construction equipment and purported "exclusive territories" for distributors within the EU. If I was right, the ECJ would rule in favor of the publican in this case... while managing to throw some kind of a bone to the rightsholders, perhaps by distinguishing between personal rights and performance rights. In the end, that is exactly what the ECJ did.

So, then, what should authors, and composers, and artists, and other creators of copyrightable works take away from this?

• First, and most obvious, is that an identical work can essentially only be licensed once for redistribution of copies in the EU. That is, if one licenses the English-language rights to one's novel (or album) to a publisher in England, one cannot relicense those same English-language rights elsewhere in the EU; the English publisher inherently has the right to sell copies of the English-language work throughout the EU. Thus, no additional licensing in Ireland, or wherever else. This is obviously far more significant in some other languages (e.g., French and German) than English, but it's still significant.
• However, this has nothing whatsoever to do with public performance rights, which the ECJ explicitly carved out (see ¶¶ 195–207). Those have been preserved. In this particular case, that means that a private person, in the privacy of his/her own home, could properly obtain and use the Greek decoder with impunity. Ms Murphy, the publican, could not, because showing the matches for her patrons — if, that is, there was enough other copyrighted content — was a public performance, which is a different right that remains subject to territorial exclusivity.
• Perhaps most important in the long term, though, breaking the DRM in the privacy of one's own home is allowable in the EU. This is in direct contrast to the U.S., in particular the ill-considered and -drafted Chapter 12 of the Copyright Act (which makes breaking the DRM itself a copyright infringement).
• For the future, authors should not concern themselves with territorial limits within the EU for rights negotiations; instead, they should concern themselves only with the identical form (primarily language).
• For existing contracts that do make territorial rights exclusions for otherwise identical copyrightable materials within the EU, we're in for a good time. We, that is, being everybody who argues about it... especially lawyers. One thing that today's decision does not make clear enough is whether the packaging of a book or album/EP/CD is "enough" independent copyrighted material to enforce some kind of territoriality for otherwise-identical copies; that is, if slapping a different cover and blurbs would be enough to protect a Belgian French-language edition from a French import. I suspect that the answer is "no," but that's a case yet to be presented.

If, however, you're just a sport fan, the Grauniad offers several worthwhile commentaries on where this might be going. Until, that is, further media consolidation means that the media monsters can demand all-languages transfers...

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

link to: 14:53 [GMT-6]

Google Book Scan

 

Authors' Guild v. HathiTrust
II(b) Litigation Without Representation

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

It's time for a (seeming) side trip to find some mangoes, make a nice mango cream pudding... and discover that this lawsuit, for purely civil procedure reasons, means far less than most commentators have been willing to accept; there's a missing party necessary to make the lawsuit ultimately meaningful.

Remedy requests (a)(ii) and (b)(iii) explicitly contemplate relief against HathiTrust related only to orphan works; remedy request (c) implicitly includes relief against HathiTrust related to orphan works. In order to obtain such relief, though, holders of rights in orphan works must either be directly before the court as parties, or adequately represented in the litigation by appropriate representatives. Obviously, the holders of rights in orphan works are not directly before the court; by definition,¹³ if the party claiming rights in a work is directly before a court as a party, we're not talking about an orphan work. Thus, we're reduced to having representation for the owners of rights in orphan works... and Judge Chin has already held that neither the Authors' Guild nor individual members would be an adequate representative for orphan works rightsholders.¹⁴ Instead, the only proper representative who could be found would be... the United States itself.

That's right: The paper tiger of copyright litigation is the only proper representative of orphan rights holders. And not only is the relevant agency (the Copyright Office) more-than-arguably agency-captured¹⁵ and saddled with an obvious conflict of interest regarding registration (and recordation) fees and the registration (and recordation) process, but the Department of Justice was pretty harshly critical of the Authors' Guild in its objections to the Google settlement. At least politically (in the broad, nonideological sense of "political"), this explains why the proper party to represent orphan works is not in front of the court.

This also reflects the converse of Justice Ginsburg's comment in note 6 of Tasini quoted above. The Copyright Act has a truly awful logical hole in it: It does not provide for "private attorney general"-type actions. If one pays attention to the entire text of the Intellectual Property Clause,¹⁶ one would assume that the enabling legislation would provide for private enforcement in "public interest"-type actions, similar to those for environmental protection and civil rights. The Declaratory Judgment Act¹⁷ comes closest, with its slightly relaxed concept of standing... but it does not provide for any remedy other than a declaration of rights — no injunctions, no impoundment of copies — and binds only the parties actually in front of the court.

Thus, one can be reasonably certain that the civil procedure theory of the complaint is seriously flawed, if only because the identity of whom the complaint brought in front of the court reflects serious flaws in procedural thinking. Next: Continued exploration of the civil procedure theory of this complaint.

---

13. Although not defined in the Copyright Act itself, "orphan works" are those for whom the present copyright holder cannot be located. Cf., e.g., U.S. Register of Copyrights, Report on Orphan Works 1 (Jan. 2006) (PDF) (defining an "orphan work" as "the situation where the owner of a copyrighted work cannot be identified and located by someone who wishes to make use of the work in a manner that requires permission of the copyright owner").
14. Technically, this is not preclusive against the Authors' Guild for two reasons. First, it concerned representative capacity in a class action, under Fed. R. Civ. Proc. 23; this lawsuit was filed not as a class action, but alleging associational representation. The rules for associational standing are different from those for class actions... but arguably much more restrictive. The key point is the difference for this purpose.

    Second, Judge Chin's decision does not operate as a final judgment on the merits in the Google lawsuit. Thus, it is at most persuasive authority, not binding precedent. However persuasive and understated his reasoning, and despite his elevation to the Court of Appeals overseeing the court in which the HathiTrust action is being heard, the Authors' Guild is not precluded from making the (IMNSHO futile) argument that it can be a representative for the actual rightsholders of orphan works. It passes the "nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law" scrutiny required by Fed. R. Civ. Proc. 23(b)(2), however wasteful and confusing to others it may be.

15. "Agency capture," also called "regulatory capture", occurs when the industry or activity that is supposed to be regulated by an administrative agency ends up actually controlling that agency's decisionmaking process. See, e.g., Rachel Barkow, Insulating Agencies: Avoiding Capture Through Institutional Design, 89 Tex. L. Rev. 1(2010) (PDF). In this instance, it is perhaps most helpful to follow the later employment of Copyright Office employees... almost all of whom end up working for copyright exploiters. In particular, some prior senior counsel are now employed in-house by scanning/digitizing companies like Microsoft... and Google.

    There's one additional irony involved here. Judge Chin and the Register of Copyright, among many others, called for Congressional action on orphan works. Unlike most administrative agencies, the Copyright Office is not either part of the executive branch or an "independent agency"; it is, instead, part of the Library of Congress.

16. U.S. Const. Art. I § 8 cl. 8 ("The Congress shall have Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries").
17. 28 U.S.C. § 2201.

Labels: copyright, intellectual property, jurisprudence, publishing