link to: 11:40 [GMT-6]

Leftover Delight

 

Slowly emerging from tryptophan hangover...

• There's a fascinating list at Foreign Policy (yes, the descendant of that cold-war journal) purporting to identify the world's 100 most influential thinkers. The list is entirely consistent with FP's twin biases against science and the arts... by largely ignoring them. Of course, competing such "lists" have their own blind spots — but it says nothing complimentary about the education of FP's staff and editors that the only scientist represented on the list for anything resembling science is Stephen Pinker, and that there is no representation on the list at all from the arts. It almost makes one wonder how George Orwell might have been treated!
• Example: They missed out on probing the relationship between, umm, side effects of antiseizure medication and bodily functions (NSFW if you're a fundamentalist; hysterically funny — pun intended — for everyone else).
• Seth Godin unwittingly explains why his approach to literature and publishing won't work as he announces the end of his new imprint's frontlist:

  By most of the measures I set out at the beginning, the project has been a success. So why stop? Mostly because it was a project, not a lifelong commitment to being a publisher of books. Projects are fun to start, but part of the deal is that they don’t last forever. The goal was to explore what could be done in a fast-changing environment.

  (emphasis in original) That is, releasing an individual work, or even a handful of somewhat related works, can be an exercise in branding awareness... but being a publisher is about boring long-term logistics far more than it's about branding. Since Godin (in particular, but not alone) has shown a blithe disregard for logistics all along in his particular criticisms of publishing, that shouldn't come as much of a surprise (if at all).

  None of this is to say that small, independent publishers/self-publishers can't be successful in the long term; it is only to say that there's a lot of boring administrative stuff to face after the first flush of enthusiasm over the newest of the new pales beside the recognition that there's work to follow. Neither is this to say that commercial publishers do that work competently on the whole now!

• One of those logistics things: Intracorporate politics leading to stupid decisions about DRM. If it didn't work for Lotus 123, what makes you think it will work for something that contains not executable code that must be bit-perfect, but letters and numbers and punctuation? In less-formal terms, remember CopyIIPC and DeCSS; in more-formal terms, this is a necessary consequence of known-plaintext cryptanalysis.

Meanwhile, plans for world domination inch forward, even as the link sausages on this platter are presented for your virtual gustatory perusal with a flourish! Bwahahahahahaha!

Labels: arts, internet, politics, publishing, science

link to: 11:23 [GMT-6]

The 2011 Turkey Awards

 

An annual tradition for over a decade! This is my list of ridiculous people from 2011 (so far). Pass me one of those rolls, please:

• The Greasy Gravy Award for oily publicity that makes the main dish inedible goes to MordorNewsCorp and the Murdoch family for both the activities involved and the coverup. It almost makes one consider "Remember the Maine" as a paragon of journalistic and corporate virtue... almost.
• The Red-Tide Oyster Stuffing Award for carelessly poisoning an otherwise tasty dish goes to the greedy landlords and MBA-think that killed Borders. If the landlords had not insisted on premium returns, and on getting premium returns even in bankruptcy, Borders would have survived to present a reorganization plan. That plan would have failed, though, due to the idiocy of management (both historically and recently).
• The Broken Wishbone Award for shattering dreams goes to Grover Norquist and "Americans for Tax Reform" for failing to understand basic economics, such as public goods, club goods, and negative externalities... not to mention original position. As Justice Holmes said, taxes are the price one pays for civilization. Looking at the nonsense in the Middle East, I'd prefer a little more civilization than a lot less.
• The Golden Gristle Award for assertions far too difficult to digest (and usually stuck in one's teeth) goes to Snow Reallyreallywhite and the Seven Dweebs — the Heffalump "candidates" for President — for a baffling combination of ideology, bigotry, ignorance, and chutzpah (oops, I can't say that about Heffalumps, it's not christian) sheer gall. The closest any of these morons gets to economics is being economical with truth.
• The Crabapple Pie Award for marketing something sour as something sweet goes to the Powers That Be who find the Occupy Wall Street movement so offensive that they resort to pepper spray on a college campus (really, now, is anyone surprised at protests on a college campus? In California?) and destroying the property of protesters... especially a library. This sounds an awful lot more like Tahrir Square in Cairo than Zuccotti Park in New York City, but it's not. Alles is verboten, dass nicht verbinden sind.
• The Brussels Sprout Award for stinky, slimy, overcooked, gentrified little cabbages goes to dictators of the world, and particularly theocrats... most of whom have been very busy indeed bringing back the worst features of feodality to the twenty-first century.
• The Dried-Out Breastmeat Award for overcooking the books goes to commercial publishing for its combination of antitrust violations and refusal to properly and fairly account for e-publishing profits to the content providers. Admittedly, this is nothing new.
• The Rancid Drumstick Award for something that should be edible, but isn't, goes to the NCAA and the big business — and big business corruption — of college athletics. Dammit, it's a university, not a minor-league feeder for "professional" sport!

Labels: censorship, civil rights, culture, politics, publishing

link to: 11:35 [GMT-6]

Goose and Gander for Thanksgiving

 

Holiday preparations go really well with migraines.

• David Segal, in another item in the NYT, hops again on the "law schools don't create lawyers" bandwagon. Leaving aside that there is not one educational program — in any field — that adequately prepares someone to step into "practice" in the "real world" without some additional training, if only in the administrivia of particular positions; and leaving aside that the other major learned profession (medicine) requires far more extensive and intensive supervision of new graduates (MDs, RNs, and registered therapists alike) than does law; and leaving aside that there's a fundamental difference between "education" and "training," and that any profession requires both...

  Well, leaving aside all of that, let's share the blame with those who deserve it. And right now I'm going to pick on the Chief Justice of the United States of America for his contribution to the "problem" Segal complains of. Chief Justice Roberts is notorious for attacking legal academics as being out of touch, and proclaiming that law journal articles are meaningless to judges in practice and unhelpful. Goose, meet gander: Justice Roberts, your Court's legal opinions are insufficient to guide either lawyers in practice or students. As a specific example, consider the massive changes in pleading practice wrought by Twombly and Iqbal in the last few years, which changed half a century of pleading practice. Throughout those opinions — and the dissents — the various justices argued extensively about whether a particular complaint adequately suggested, to a level of probability that was the subject of the argument, a theory of potential liability. That was fine, in a sense; the problem is that nobody — not the Supreme Court, not the Courts of Appeals, not the District Courts — quoted the actual data at issue: The allegations in the complaint. This would have been trivial; the critical section of the complaint in Iqbal, for example, is only four double-spaced-typed pages long. We would not then be wondering what data set led to the high-minded principles used to dismiss those complaints... nor would there remain the ideological/"results-oriented jurisprudence"/"docket control" issues, or at least not so overtly due to the courts' success in suppressing the data from general accessibility. (Yes, I know how to use PACER to get those complaints; but there's no equivalent in most state courts... or for older cases...)

  Twombly and Iqbal give us the Science News version instead of the Journal of the American Chemical Society version. Nobody treats Science News as a primary source for scientific principles, and yet we're expected to treat the equivalent as a primary source for legal principles. In turn, that means that the complaints don't make their way into casebooks, and thus in front of students. Yet many complain that law journals have the very same defects, because they are not grounded in the realities of practice. Admittedly, there is crap in law journals; there's crap in scientific journals, too (and the less said about garbage like the Harvard Business Review, the better). That's no excuse, however, for tolerating crap in judicial opinions that would not pass muster at even a mid-level scientific journal because the opinions expect the reader to take the data on faith.

  None of this is to say that everything in the legal academy is perfect. It is only to say that the problems are not at all what Segal (et al., as it has become quite a popular meme) says they are, let alone what the cause of any of those problems is... let alone what a solution to any of those problems might be (hint: whatever such a solution might be, it is not teaching civil litigation administrivia to someone whose first job is reviewing M&A documents for a fairness opinion). <SARCASM> Or maybe the legal profession could just jettison its animus toward second-career lawyers, both in practice and in legal academia, since much of the "administrivia" aspect of learning to practice gets learned in those first careers that lead to law school. Yeah, that's gonna happen Real Soon Now. </SARCASM>

• Speaking of data, scientific journals, and worthwhile publishing, consider Springer Verlag's generally well-considered efforts to digitize its backlist of scientific works. If you walk into the office of any chemist, mathematician, geologist, physicist, or (only almost any) researcher in the life sciences, you'll find at least one Springer publication... and it probably has marginal notes, and dogeared pages, and bookmarks (unless you've found a brand-new edition or a brand-new researcher!). I am most encouraged by Springer's apparent care for what it has the rights to do. I may not agree that Springer in fact has those rights in each specific instance... but unlike most digitizing efforts, it has integrated that inquiry into the system at the beginning point. In short, this is how the Google Books System should have been done, especially considering that there's an at least credible argument against publishers profiting from academic works in the first place (that has substantial flaws, but it's a lot more credible than the equivalent argument for trade fiction or anything else in which expression is more important than the facts conveyed).
• Perhaps there's a place for a liberal in American politics. We don't have one in the Half-White House at present — Obama is a moderate, not a liberal. Maybe Massachusetts can do better than a model for Cosmo as a US Senator. Or maybe not; there's that whole "antiintellectualizm rulez" thread in the Tea Party and among "social conservatives" (I guess one shouldn't think too hard about whether something really is moral, eh?) to fight against. BTW, how did abject stupidity and overt rejection of conscious thought work out with the economy from 2004 through 2008?
• Or maybe this is all just another failure of Rawls's test for the original position that pops up in unexpected places like determining who gets to be a professor... or, more properly, can afford to be a professor. Like, for example, Professor Warren herself...

Labels: copyright, intellectual property, jurisprudence, law practice, politics, publishing

link to: 13:03 [GMT-6]

There Is No ConteNt Without ConteXt

 

... even for link sausages. Yes, sausages have context, too: They're ways to keep animal products (relatively) safe to eat for longer after slaughter, and to increase the proportion of a given dead animal that is consumed as a protein source in the first place by using otherwise difficult-to-prepare bits and pieces. McZorgle's "all meat patties" have nothing on the ingenuity of sausage-makers who use even the facial and tail muscles. And my deeply disturbed looks across the net are probably better left undescribed!

• Sometimes even libertarians and economists admit that "context matters" — especially when, as in this instance, the "context" is created by badly-written, response-directive survey questions designed to highlight purported lack of economic knowledge in ideologically pure liberal social positions. This is an excellent example of the nonideological bias of the scientific method: Test your hypotheses against the evidence... and if more evidence comes along that contradicts the hypothesis, change the hypothesis to match the evidence instead of denying that the evidence has anything to do with the hypothesis. After enough testing, the hypothesis can become a theory — but every theory, such as high-school-chemistry favorite Boyle's Law (pV={constant}), has boundary conditions outside of which it does not hold. Further evidence may not contradict the theory, but instead define those boundary conditions. Boyle's Law is a subset of the Ideal Gas Law, which adds in considerations of temperature and quantity... and implies that real gasses are not ideal.
• And then, sometimes, even the new theories run up against boundary conditions and have unintended consequences and unanticipated mechanisms (and interactions). This is, ironically enough, related directly to the analogy that I used in the preceding item — just as real gases are not ideal, real people (and populations) aren't, either.
• Let's hear one more great big raspberry for further consolidation in the media industry, as EMI will probably get bought by somebody or other. And I say "somebody or other" because, under any rational view of antitrust law either here or in Europe, this is an anticompetitive purchase that will harm both competitors and the public... not to mention the suppliers, who seldom get much attention from anyone considering the antitrust implications of a given proposed transaction. All of that without considering the context of original position as it relates to freedom of expression and artistic integrity (note, carefully, the identity of the conglomerate).
• If we understand cooking (and food preparation) in space, maybe we will remember when to corral the meatballs. And not to hire the Swedish Chef for an interplanetary voyage.
• Last, a rather distressing link sausage. This is an explanation, not an excuse, about why a 2m-tall former football player did not stop a rape. There's a one-word answer: Panic.

  One of the reasons that the military spends so much time training soldiers on responding to combat situations is to prevent panic from inhibiting their reactions under fire. And still, a disturbingly high proportion of soldiers do not fire their weapons in a firefight — even in all-volunteer armies — or, worse, fire indiscriminately, against their training. Similarly, highly trained rescue workers sometimes neglect their training and run back into collapsing buildings against orders only to become casualties themselves, or conversely do nothing. Consider that Mr McQueary probably had nowhere near the training for how to deal with a (hopefully) incomprehensibly unlikely situation that would have required him to assert force against an authority figure. Anybody who claims that "of course you should stop it in progress!" has failed to distinguish between should, must, and does.

  This is not to say that I think McQueary is or should be off the hook for his failure to respond; sometimes, after all, a panic reaction can be (and is) properly construed as "cowardice under fire." But it happens... and I'm not sure that high-minded rhetoric about "moral responsibility" is appropriate from any elected official in this country, given the dubious "morals" of electoral politics. Neither am I sure that the university is off the hook for failing to teach its responsible employees how to either (a) effectively speak truth to power or (b) effectively and properly intervene in an authority figure's misconduct without making matters worse. My point is that I can understand what might have happened (and, based on what we "know" at this time, most probably — but not certainly — did). My secondary point is that the governor's rhetoric is not only unlikely to be helpful, but is implicitly a disclaimer of all responsibility... and that is definitely not morally defensible, because leaders — even those who come to leadership after an event — have some moral and actual responsiblity for everything.

Labels: culture, intellectual property, mass media, politics, science

link to: 13:54 [GMT-6]

I Thought You Got Five Years?

 

If there's a theme for today's platter of link sausages — aside from the dubious ingredients common to sausage-making — it is the Blues Brothers, and in particular the film. (We do not speak the name of its progeny in this household.)

• Is James Murdoch the twisted, privileged next life of Jake Blues? After his "performance art" piece today in front of Parliament blaming everyone else for his lies bullshit during his previous sworn testimony, I wouldn't be too surprised if he shows up for dinner at a relatively nice restaurant in the West end and tries to put a price on little girls. At least Chicago is relatively safe from him — that's Conrad Black's territory.
• The BBC's latest version of "penny wise, pound foolish" is its refusal to pay an additional £5,000 to a rightsholder to rebroadcast a classic series. Sadly, this is entirely consistent with the BBC's attitude toward rightsholders, ranging from claims of electronic download rights in old radio programs produced entirely by freelancers in their own flats to obstinate refusal to pay as much as 60% of the going market rate for the right to turn its old tapes of an author reading his work on the air into an audio book. (N.B. I have personal knowledge of multiple incidents in both categories.) The BBC appears to believe that its status as the BBC lends such prestige that no rightholder/creator/artist should question its valuations, let alone try to negotiate terms close to the market value. Any relationship to the preceding item is purely coincidental (yeah, right).
• Julie Taymor may not look all that much like Carrie Fisher, but she's got her rocket launcher aimed right at the dubious "residency hotel" abode of one Elwood Blues of the producers of the Spidey Broadway musical. In law school, one of the first things that one learns is the image of law being a "seamless web." Leaving aside that later on (and certainly by the time of the bar exam), one learns that it's a seamy web indeed, Ms Taymor's demands might use law to bring down the webspinner... and, frankly, rightly so, regardless of the artistic merits of the production. Spinning off into another part of the web: If I'm building a Manhattan skyscraper, I have to expect to pay the subcontractor who excavates and pours the foundation. More to the point, I have to expect to pay the architect who designs the building, especially if the building is in the form of a unique sculpture. And it's my own damned fault if I was too cheap to get all of the necessary clearances and permissions during the initial construction and/or conception to do the things I suddenly decide to do later.
• Another territorial rights claim begins to crumble — this time, Australia. Combine this with legislation introduced to allow states to more-easily collect sales taxes on internet sales, and there's a clear trend: For commercial purposes, anyway, borders will matter less and less. I suppose this means that in Australia, you'll be able to get both the in-country and the Western-languages editions more easily...

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

link to: 23:03 [GMT-6]

Google Book Scan

 

Authors' Guild v. HathiTrust
II(c) The Imaginary Component of Complex Litigation

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

There is one other purely civil-procedure aspect of this mess that remains underappreciated... and is going to turn around and bite somebody on the butt (my money is on Google as the bitee, for reasons that I will explain in detail after we've plowed through the merits). If nothing else, the Google Book Scan litigation, with its multiple suits and failed attempts at class certification, constitutes complex litigation.¹⁸ Just look at what we have:

• The original Authors' Guild v. Google suit, which was consolidated with
• A publishers' counterpart (McGraw-Hill v. Google) in the hopes of settlement, which has now failed
• A parallel suit involving illustrations in scanned books from the American Society of Media Photographers, which is not consolidated with the two preceding suits

And that's just in the Southern District of New York, which I have maintained from the beginning is the wrong venue. It does not consider any of two dozen or so (that I have found without doing an expensive customized search) individual suits that disclaimed class status that have been filed against one or more of the guilty parties — including publishers that improperly approved scanning when they did not have the authority to do so. Neither does it consider potential suits that might be filed against other guilty parties, such as cooperating libraries outside of the HathiTrust structure (and you know who you are). Perhaps most disturbingly, it fails to consider the web of conflicts among those appearing across the v. from Google. The obvious author-publisher (and illustrator-publisher) conflicts are bad enough... but as Judge Chin pointed out in his 22 March 2011 rejection of the proposed class settlement, the conflicts within the classes of plaintiffs are so severe that it was inappropriate to accept the settlement as fair.¹⁹

Managing discovery in this kind of a nightmare is going to be a challenge in itself. That will be a particular problem when dealing with orphan works and with fair-use defenses. A little farther down the road, both sides will undoubtedly be filing motions for summary judgment. Unfortunately, the Southern District of New York does not have rules as clean as those in the Northern District of Illinois for handling the way the parties present the facts and evidence, so we're going to have inconsistent presentations there on the same side of the v., which will in turn make things very interesting indeed for the judge.

Finally for now, there's the potential estoppel arguments... for each significant issue. Let's consider just a fair use defense for a moment. Ordinarily, if Google were to lose the fair use defense against any of these defendants, the other defendants would (and could) hold that finding against Google in their own proceedings.²⁰ The problem is that the four statutory fair-use factors²¹ (not to mention that overriding fifth fair-use factor, administrative convenience) are claimant-specific, because the third and fourth factors are substantially different for the intermediate licensee-distributor (the publisher) than they are for the licensor-creator (the author, or the photographer).

Last, though, there's the converse problem. Judge Chin properly called for legislative action, particularly in dealing with the orphan works problem. That, however, can only concern itself with future conduct; it is improper for Congress to insert itself so far into a pending matter that it directs the outcome of that matter. Thus, the longer that Congress waits to do something, the less it can actually do (which is not much of a surprise, is it?). In the meantime, the judiciary is stuck with not just the possibility, but the high probability, of inconsistent judgments and results in these actions. If nothing else, this points out an aspect of antitrust doctrine that was carefully neglected in the various public discussions of the proposed settlement.

---

18. See, e.g., Federal Judicial Center, Manual for Complex Litig. (4th) (2004) (PDF). Ironically, the MCL is just about due for a decennial revision...
19. There's one conflict that was not discussed in that opinion that is not quite an elephant in the room — perhaps it is only a hippopotamus, or a very angry rhinoceros. And that is the Bankruptcy Code. All it would take to torpedo this entire litigation is for one of the many named plaintiffs to enter bankruptcy; given the ill health of the publishing world, that's a more than trivial possibility. Hell, all it would take would be for one of the named-plaintiff authors to become seriously ill outside of his/her health insurance coverage! Or, worse yet, for one of the named plaintiffs to be a successor in interest to a debtor that had been discharged in bankruptcy.
20. See Parklane Hosiery v. Shore, 439 U.S. 322 (1979).
21. 17 U.S.C. § 107.

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

link to: 12:12 [GMT-6]

His Molluscan Majesty Presents...

 

Just a quick note here...

Life does throw up its interesting distractions from important things like blawgging at times, like preparing a consultation client for a hearing on a complex litigation matter of a nature new to him. Like dealing with remoras. Like back spasms. And so on.

In any event, I've now finally cleared all of the conflicts on the HathiTrust stuff, and the next installment will go up tonight. In the meantime:

Labels: life, politics

link to: 11:33 [GMT-6]

Subterranean Link Sausage Blues

 

Back to the music of my misspent youth today...

• Herman Cain has a secret fondness for John Lennon, apparent long ago, when he was running Godfather's Pizza. Nobody ever notes that the chain's franchise headquarters avoided bankruptcy on his watch by trickling debt down to its franchise operators — many of whom then went through bankruptcy — meanwhile asking those same franchisees to "imagine there's no pizza." Leaving aside for the moment the question of whether he cleared the copyrights for creating a derivative work that fails the bizarre legal tests for determining whether it's a parody, it's far less disturbing than his more-recent ode to John Lennon: Tax Revolution Number 9 (Number 9... Number 9). I won't be surprised if Cain's incoherent policy initiatives start reflecting more-overt connections to Lennon's songs. The capital punishment debate will not be enlightened by "Maxwell's Silver Hammer," nor will military procurement benefit from "Yellow Submarine." And the less said about "Helter Skelter" as inspiration for foreign policy, the better...
• From the Department of It Could Be Worse: At least Occupy Wall Street doesn't have to contend with a legitimized shadow government (the shadow government on Wall Street is illegitimate) with the right by ancient royal perogative to ignore the civil authorities (power to do so, yes; royally granted right, not so much)... or an official, established religion that sues to remove protesters from an ordinarily public forum (over here it's usually the "cultier" religions that go after nonviolent protesters — usually).
• The Copyright Office has released a voluminous report on mass digitization of existing textual works that, unfortunately, falls into the same trap as most of its other pronouncements: Despite some interesting and worthwhile analysis, it completely neglects the agency-capture problem inherent in its reliance on registration and recordation fees. I'll have more to say on the substance later on, particularly as it relates to the merits of the HathiTrust lawsuit.
• Antitrust alert: Speaking of franchising, MordorCorp NewsCorp unit HarperCollins announced a plan to purchase Thomas Nelson, the largest "christian publisher"... to go along with its existing ownership of Zondervan (both the imprint and the bookstores). <SARCASM> Yeah, that presents no antitrust issues at all, or any conflicts with the seventies image of a whiny-voiced Jesus going Chuck Norris in the temple (or on Wall Street). </SARCASM> At least Occupy Wall Street has not gone that far; instead, it seems that Wall Street may have hired the Hell's Angels for security. Apparently, the right to peaceably assemble and present grievances to those who own (or at least rent) the government must be infringed in favor of the right to quiet while counting one's money.

     I was sorely tempted, as a counterpoint to the first sausage on this platter, to make the obvious cheap-shot reference to a piece from the Beatles' biggest competition, but I chose a more directly related cheap shot instead. (Oh, okay, I'll take that one, too.) Remember, though, that corporations don't cause foreclosures and bankruptcies — people do.

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