link to: 07:42 [GMT-6]

Remora in the Sea of Marmara

 

By this time tomorrow, anyway. The preparations for that little reconnaissance mission have eaten up a lot of time this past month!

• The Economist offers an off-the-wall vision of Martin Luther as a precursor to the Arab Spring... which makes sense if, and only if, one can distinguish between "church" and "state" in the Islamic world. On the other hand, the thus-far-successful movements have done precisely that, in states that had been struggling to do so for decades, so maybe it's not such a bad analogy after all. I seriously doubt that anyone will be nailing 93 objections to abuses of theocracy — like this one — to any door anywhere in the Islamic world in the near future, though!
• Much as I hate to even acknowledge THR's current "journalistic standards," here's an interesting piece on the dispute over the origins of The Last Samurai that only hints at a couple of things that I know a lot more about than does Mr Gardner. Let's just say that he's understating the endemic disrespect for intellectual property at That Studio... which is, after all, related to this former opponent of mine (in fact, they had common ownership at the time) and is a really sore loser.
• My colleague Professor Phillips offers some historical context for IP (and copyright in particular) through his unusually accessible academic writing. Authors, in particular, should consider the issue of common-law copyright (PDF) and how it relates to publisher overreaching on electronic rights in older books (note to Harper's PR flacks — you should consider talking to competent litigation counsel before you state legal conclusions like "grants us the exclusive digital rights to the book" that seem inconsistent with the actual wording in the contract... and with the result of previous litigation over similar language). But perhaps that's just me noting that we're fighting the same centuries-old battle again...
• John Scalzi tries to engage with a blogger about whether publishers treat readers as "customers" and falls into the Warden's trap when dealing with Luke (and damned near everyone else): A failure to communicate. The problem is not with publisher failures or successess; it is not with idiosyncratic views by segments of the readership or profound common beliefs; it is with the definition of "customer"... and whether readers view the publisher or the author as the vendor. This is not an easy question for anyone, but it is perhaps clearest in a certain subspecies of reader: The professoriate seeking textbooks. Without naming any names, I recall a law-school class for which the professor chose a book for a class he was teaching for the first time based solely upon his respect for the author's academic work... and swore to never again read anything longer than a law journal article from that author because the publisher screwed up the order so that the book wasn't available until two weeks into the class and edited and printed it incompetently on top of the lateness (admittedly, I have no idea whether the author's possible lateness/noncooperation might have contributed to this). He blamed the author, not the publisher... and ordered a different book from the same publisher the next time he taught that class (at another school).

  This is actually closely related to the publisher-overreaching in the last link of the preceding item. Publishers — particularly for category fiction — are becoming increasingly hostile to authors' control of the author's own name, primarily through noncompetition clauses that are becoming broader and less negotiable. Returning to the issue of "customer," recognizing that there's a competing concept of "vendor" illuminates most of the disagreement between Mr Scalzi and that other (semipseudonymous) blogger. The logical antecedent of "customer" is "of what" — and there's a considerable difference between the fulfillment aspects of being a publisher and the editorial aspects of being a publisher. If you can't agree on who/what the vendor is, you can't agree on what responsibilities that vendor has to a customer, let alone who the customer is (and is not). Then there's the monopoly/monopsony problem on top of that!

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

link to: 13:18 [GMT-6]

Prof Larry Ribstein

 

Condolences to family, friends, and colleagues for the untimely death of Professor Ribstein, a (if not the) leading theorist on business entity structures that are not corporations. We were at most academic acquaintances who had met a couple of times in passing. Our politics did not match well, but our shared interest in the interface between individuals and their business interests led to some interesting exchanges over the years... and helped sharpen my thoughts on how authors and other creators of intellectual property should arrange their own business affairs.

This leaves a considerable hole in the theoretical and practical landscape of "uncorporations" — and leaving aside the personal issues, that's a bad thing in this day of proliferating llcs as the purported "solution" for everything.

Labels: jurisprudence, miscellany, publishing

link to: 14:02 [GMT-6]

I See Dead People (and Lawsuits)

 

I've been spending the last week-plus surrounded by various types of dead bodies. (And the house sure stinks because of it... although one should also recall that the term for the back files of a periodical is a "morgue".) Zombies, however, don't make for great blogging. At least not for me.

• The first notable death in question is Christopher Hitchens. This is the loss of an interesting voice in the church-versus-state realm that will be missed... but I'm not going to insult what he stood for by wishing that he "rest in peace," because he is (everybody is). I may not have agreed with everything he said — in particular, his support for the amoebic-dysyntery-like spread of "intervention" in Iraq and Afghanistan — but he was always entertaining, if nothing else.
• The second notable death in question is one of the true tyrants of the world, Menta Lee-Il's uncle Kim Jong-Il. Mr(?) Kim has been more responsible for destabilization in nuclear proliferation in particular and in East Asia in general than any other single individual in the last two decades. Interesting, given the history of his treatment by Jon Stewart, that he "chose" to die right before a holiday week at The Daily Show so that it won't be fresh news by the time they're back...
• Now turning to someone who probably wishes he was dead — or would if he had any shame, which I cannot guarantee based on his other writings — consider the ignorance about Amazon and local bookstores spewed forth by not-famous-author Farhad Manjoo. I'm not going to spend time on how the author blogosphere has responded; instead, I'll try to educate y'all on a much more subtle way that Amazon is not as good for authors as local bookstores are: Royalties. In short, particularly for older works, Amazon sales often pay less to the authors.

  Do I have your attention now?

  This involves some simple math and complex contract interpretation, so please digest this whole sausage first. When authors review contracts to see what they should be getting for royalties, they tend to focus on the obvious stuff: x% of list price. That is, indeed, the default royalty calculation for printed books (at least at present; more and more publishers are pushing toward a y% of net model, but even those contracts follow the rest of this paragraph...). The kicker, though, is the "high discount" clause, which cuts the royalty in half for copies "sold"¹ at a "high discount." As y'all may well be aware — and is the factual context even if you're not — books are sent to bookstores, including Amazon, at a discount from the list price. The ordinary terms are called the "long" or "trade" discount. Historically — that is, from the late 1960s to about 2003 or so — this was a fairly iron-clad 40%. Sometimes, though, there were "special deals" offered at higher discounts, which the publisher then demanded be treated differently. If you're cynical, you can probably spot what's coming...

  The high-discount clauses typically kick in at a 50% discount from list, at least for contracts negotiated before mid-2004 or so (and even for the vast majority of contracts negotiated after that time). The problem here is that Amazon as its standard term demands a discount of greater than that from many publishers, particularly independent small presses (which, BTW, one is most likely to encounter at an independent bookstore); as of early 2010, the standard terms demanded of Publishers Z₁, Z₂, Z₃, and Z₄, for example, was 52%. That would trigger the high-discount clause in older contracts (and I've confirmed that Z₂ and Z₃ have invoked that clause) for calculating author compensation for every sale through Amazon. What makes this worse is what will happen when Z₄ is acquired by a conglomerate and becomes, at most, a brand subset — like Buick — because the existing distribution agreements will continue until renegotiated...

  Now, this does not hold true for all publishers, or all books, or all of anything, sold through or via Amazon; one of the ways that the Big Brazilian River has thus far avoided being dammed by the antitrust authorities is that it maintains the pretense of negotiating contracts with vendors. Similarly, not all authors have been so foolish as to accede to a 50% trigger for the high discount clause (although, to be honest, I've yet to meet an agent or author who had considered this issue until I pointed it out). Nonetheless, there's a substantial chance that when someone buys a book from Amazon that was printed by a publisher that is not one of the Big Six (and even if it was), the author is getting a lot less money from that transaction than if that same book were purchased via the (now, lamentably, closed) Pages for All Ages here in Chambanana, or the Elliott Bay Book Company in Seattle, or the Tattered Cover in Denver, or any other independent bookstore.

• Speaking of price manipulation and how that affects authors, Michael Chabon is rightly bitching about e-book royalty rates, and the antitrust lawsuits concerning the misnamed "agency model" have been moved to New York, consolidated there, and left under the care of the lawyer who filed the first one. For some reason, nobody has asked me to be an expert witness on this stuff. Yet. (Or, given who some of the other counsel are on this, ever...)

---

1. This is not the time or place for spending a lot of time on the returns system, or the distinction between consignment and sales, or anything else like that. They're all critically important, but for the purposes of this paragraph they're red herrings. Stinky, rotting red herrings that are poisoning the rest of the fish barrel, but still...

Labels: intellectual property, internet, politics, publishing, science

link to: 12:21 [GMT-6]

From the Illinois Governors' Wing of the Federal Penitentiary:

 

The flu is so much more fun at one remove with remoras also going through end-of-semester panic...

• So EyeOfNewt doesn't think that "Palestinian" is a "real" ethnicity worthy of political recognition, eh? I was always taught that glib generalizations should have at least some basis in fact, unless they're being used solely for comic relief. This one must have been for comic relief.

  The most obvious, relatively nearby counterexamples to EyeOfNewt's lie only a few hundred kilometers due north of Palestine: Kurds and Armenians. Of course, the implicit comparison of Israel to the atrocities committed by the decaying Ottoman empire as it sank into a two-class society consisting of a decadent, "religiously correct" ruling class determined solely by ancestry and a randomly oppressed peasantry isn't exactly what EyeOfNewt intended, now, is it? One could also point to the "former Yugoslavia" (or, if one is feeling particularly whimsical, the "former Austro-Hungarian/eastern Hapsburg domain") for exactly the same problems with self-designation of ethnic groups seeking political independence. Gavrilo Princip, anyone?

  More to the point — especially if one likes one's political rhetoric like Turkish coffee (which is to say strong, black, and bitter) — EyeOfNewt's denigration of Palestinians as an "invented people" exactly matches Georgia during the civil rights era (and I mean EyeOfNewt's home state, not the former Soviet Republic — although come to think of it...). It also exactly matches the idea of "Americans" as a distinct "people." More to the point, it also matches the idea of consolidating all of the various tribal factions on the eastern seaboard of North America into "Native American" or "Indian", and then adding to the designation by later conquest so that it includes tribes that would have slaughtered each other on sight. Somehow, I don't think that EyeOfNewt has ever considered the kinds of animosities between pre-Balfour Declaration "native residents" of Galilee and the Negev... or, for that matter, considered the friction between Ashkenazim and Sephards, or the undercurrents in the story of "the Good Samaritan." No, it's all just another version of manifest destiny, because the implicit presumption is that arch-Zionist dominance of the region and displacement of its population is right... and has no exceptions or limitations.

  EyeOfNewt's position would have been more defensible if he had extended it to its extreme: All "ethnicity" is an invented psychosocial construct that changes substantially over time and geography. That's a position I could, and do, agree with... but it contradicts "American exceptionalism," and in particular "white christian American exceptionalism," so you're just not going to see it considered seriously in American political debate. From or by anyone.

• On a lighter note, how about invented languages to go along with the invented ethnicity?
• One of the downsides of patronage as a model for supporting the arts is that sometimes it's a choice between starving and sleazebuckets. At least in the marketplace one can pretend that it's just the handing over of greasy currency — or, these days, electronic banking transfers — in an arms'-length transaction. I, too, though, have seen PBS acknowledgements of Koch "charitable foundations" on science shows that skewed away from discussing climate change...
• Of course, that also brings up the problem of the buggy-whip industry — that is, the existing publishing apparatus, and in particular that devoted to scholarly works. The problem here is not transition to different models while retaining the (imperfect, but better than the alternatives) peer-review system, such as SSRN and arXiv and PLOS, but the destructive effects on some of Schumpeterian creative economic destruction — that is, the casualties/collateral damage of change. For some reason, those whose personal interests are most directly intertwined with the status quo always seem to be most strongly set against changing it... even, or perhaps especially, when change is inevitable.

  Conversely, it also implicates antitrust problems in the existing industry subsegment, and the fact that no matter where one comes down on the question, the answer isn't going to be quick. Or cheap. Or casualty-free.

• Professor Bambauer describes one response to Facebook's facial-recognition software in startlingly clear terms:

  One proposal raised was to provide people with copyright in their faceprints or facial features. This idea has two demerits: it is unconstitutional, and it is insane. Otherwise, it seems fine.

  More than anything else, this points out just how difficult it is to adapt the common-law model to rapid change in context.

• On another lighter note, smoking may make your nipples fall off. That I'm calling that a "lighter note" may tell you more about my sense of humor and prediliction for multilayered puns than you really want to know.

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

link to: 22:49 [GMT-6]

Forest, Trees, and Underbrush

 

So, if they're "student-athletes," perhaps a little bit of the "student" aspect needs to go into college football "standings." I therefore present the Bowl Standings for Collegiate Athletic Commercial Advantage, or BS-CACA. I'll weight the BS-CACA equally between "football performance" and "academic performance," which in turn is equally weighted between the NCAA's most-recent academic progress report for the football team and the university's median freshman standardized-test score. And thus, we get:

School	BCS Score	BCS Rank	NCAA APR		ACT		Academic	Final Score	Final Rank
LSU	1.0000	1	966	.7541	25.5	.4167	.5854	.7927	1
Alabama	.9419	2	963	.7049	26.5	.4722	.5886	.7653	3
Oklahoma State	.9333	3	942	.3607	25.0	.3889	.3748	.6451	6
Stanford	.8476	4	977	.9344	31.0	1.0000	.7222	.7849	2
Oregon	.7901	5	941	.3443	24.0	.3333	.3388	.5645	9
Arkansas	.7687	6	937	.2787	25.0	.3889	.3338	.5513	11
Boise State	.7408	7	981	1.0000	22.5	.2500	.6250	.6829	4
Kansas State	.6827	8	940	.3279	24.0	.3333	.3306	.5067	13
South Carolina	.6553	9	954	.5574	26.5	.4722	.5148	.5851	7
Wisconsin	.6374	10	967	.7705	28.0	.5556	.6631	.6503	5
Virginia Tech	.5190	11	955	.5738	27.0	.5000	.5369	.5280	12
Baylor	.4977	12	951	.5082	26.5	.4722	.4902	.4940	15
Michigan	.4794	13	928	.1311	29.0	.6111	.3711	.4252	16
Oklahoma	.4603	14	960	.6557	26.0	.4444	.5501	.5052	14
Clemson	.4218	15	977	.9344	27.5	.5278	.7311	.5765	8
Georgia	.4119	16	976	.9180	27.0	.5000	.7090	.5604	10

It would look even more... interesting if we could substitute in the ACT score median for the respective teams instead of the entire freshman class.

Labels: culture, politics, sport

link to: 10:41 [GMT-6]

Predator-Prey Relationships

 

Just remember: A tree's natural enemy is not some woodland creature, but a lawyer. Unless, that is, you're talking about a lawyer who is also a woodland creature, like a weasel who passes the bar exam.

• GBS Update: Yes, I know I'm late on describing the legal theory of the HathiTrust complaint, and its flaws. Literally as I was getting ready to post the first entry, I got an outside consult on the matter, so I delayed the post to finish up the consult. And in the meantime:
  • The Open Book Alliance (a Google Book System "competitor" partially led by Micro$oft) has used the Copyright Office's triennial review of "technological protection measures" (required under chapter 12 of the Copyright Act) to object to Google's system for keeping non-Google-affiliates (like OBA members) from accessing even public-domain works that are otherwise available to libraries under the GBS.
  • The HathiTrust defendants have answered the complaint with a badly-conceived laundry list of alleged "defenses" and "defects" (pages 22–24) that will eventually kill off a small forest, but largely hides the strategy (and sheds little light on the copyright issues involved). Frankly, the best defenses available and pled were all based upon the procedural and constitutional jungle already discussed...
  • Google has announced its intention to file a motion to dismiss later this month in the GBS matter itself. This will presumably rely largely upon allegations of fair use under § 107... which is an inherently flawed strategy, and procedurally improper. Section 107 — however badly worded — is not properly decided on a motion to dismiss; it is, instead, a fact-based defense that could be decided "on the pleadings" (Fed. R. Civ. P. 12(c)), on summary judgment (Fed. R. Civ. P. 56), or at trial... but not, as a matter of law, based solely upon the complaint's failure to state a claim (Fed. R. Civ. P. 12(b)(6)). That's because all allegations in the complaint must be taken in the light most favorable to the plaintiff, even under various heightened pleading standards — and there are no allegations of fact in the complaint sufficient to resolve the four-factor test required by the § 107 defense.

    So, then, why would Google move to dismiss the complaint when it can't win? Well, for one thing, because judges in the Second Circuit (albeit not Judge Chin) have a long history of treating class-action motions to dismiss as motions for judgment on the pleadings... even though Rule 12(c) explicitly says judgment on the pleadings is appropriate only after the pleadings have been closed. For another, this is part of the process of educating the judge on the issues, in a general sense; that's not really necessary in this matter, though, given the extensive ruling that Judge Chin has already made. Most importantly, though, it delays things — considerably. (Not to mention runs up law firm billings.)

• The European Commission has announced a formal antitrust investigation of European e-book sales and pricing. Given that somewhere between 80 and 85% of these formal investigations result in formal charges by the Commission — and that well over 90% of the ones that become formal result in changes in behavior designed to blunt any such charges — I expect things to get more... interesting on the e-book arena in Europe very, very shortly. That will spill over to the US at some point, too.
• No profits to be found in H'wood, right? Is anybody really surprised? Those who've been paying attention to publishing contracts imposing net-receipts royalties for e-books (see the previous item!) will start wondering if a movement of bookkeepers from Los Angeles to New York, within the entertainment conglomerates, might be in the offing. Or has already happened.

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

link to: 12:26 [GMT-6]

Meet the New Boss, Same as the Old Boss

 

When I first started dealing with the publishing industry as a prospective author and sometime journalist (and underground newspaper publisher) over three decades ago, things were somewhat simpler, primarily in the sense that "quantity has a quality of its own." No less bizarre; no less irrational; no less downright dishonest; no less dominated by myths with no foundation at all, let alone a foundation in the present; no less arrogant in disdain for authors; just simpler.

• If one believes a midmajor figure in US children's publishing, "We consider digital editions to be simply another format." If that's true, why does that publisher (among others) insist on compensating authors solely upon a nonauditable "net profit" basis for contributions to works that do not have per-copy costs? And that's just the start. The key point is to recognize that digital editions are — legally, economically, physically, and above all substantively — much more than "simply another format."
• The Grauniad really disappointed me with an article proclaiming the newness of musicians doing orchestral-pop fusion and such by ignoring history. It has a long and honorable history, well beyond mere "quotation" (e.g., Liszt's Hungarian Rhapsodies and, in the other direction, the opening bars of many Beatles tunes) and "restylings" (e.g., Jethro Tull's "Bouree," a blues-rockish reworking of a Bach lute prelude). Just listen to Philip Glass, John Adams, a number of pieces commissioned for Kronos Quartet, Rick Wakeman (particularly in the early and mid 1970s) and Yes, Renaissance... the list goes on. In short, this isn't new; only its formalization (in the Soviet literary criticism sense of formál) appears new. I mean, really: A 1978 album on which the drummer for a "rock band" is wearing a t-shirt that proclaims "Prokofiev Rules" isn't enough evidence of cross-influence... particularly after listening to the album itself?
• Professor Ribstein and Professor Bainbridge do not agree on Congressional insider trading. I suspect that this is an honest disagreement; I agree with the professor. <vbeg> With due respect to Professor Ribstein (and Professor Henderson), neither of them has ever had to deal with a system that had either no rules regarding conflicts of interest for government officers or no enforcement of those rules. I have. On that basis, I still believe in, and follow, the military officer rule:

  If it looks like a conflict of interest, it is a conflict of interest.

  As federal officers, members of Congress should be equally subject to the same rules as every other federal officer. I would even favor a rule requiring that all investments for federal officers with decisionmaking authority — anyone at protocol DV6 level (one-star flag officer equivalent) or above — be explicitly run through and managed by a separate indexed agency, excepting only one personal residence. This isn't about libertarian paradises; it's about basic trust — and if there's one principle that libertarians should agree on it's "trust, but verify" (especially for governments). Right now, we have neither.

• Let's hear it for universal (un)translators and recall that communication requires context... some of which is linguistic baggage (or, more often, a U-haul trailer) dragged along for the trip. The gender-theoretical specter raised by women being neuter (or, at least, "not feminine") until they are married in German (das Fräulein, das Mädchen, but die Frau) is just the tip of the uncircumcised iceberg.
• For my fellow civil procedure geeks out there, Congrass has passed H.R. 394, the Federal Courts Jurisdiction and Venue Clarification Act of 2011, ably and clearly summarized by Professor Wasserman.

Labels: arts, culture, jurisprudence, politics, publishing