Scrivener's Error

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Scrivener's Error	Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

11 January 2012

link to: 12:06 [GMT-6]

Link Sausages With a Meat Course to Follow

Those of you who've been complaining about how little meat there is in the link sausages can skip to the bottom of this entry.

The day of the New Hampshire "primary," the manufacturer (miner?) of Twinkies and other wholesome snacks declares bankruptcy. Coincidence? I think not...
The fallout from excessive copyright terms is tone-deaf, otherwise-disinherited nephews determining what's on Broadway (besides jazz hands). The problem here is that the Copyright Act overrides wills in two respects: revocation/termination rights (§ 304(c), § 203) and renewal rights (§ 304(a)(1)(C)) descend according to legal directive, not what is in the will or other succession-of-interest plan (such as a trust). I understand why Congress wanted to do this — it was a reaction to the combination of overreaching by publishers (primarily music publishers) in the 1940s and 1950s and the indeterminacy of what happens to renewal rights if the publisher takes the whole copyright — as was required under the 1909 Act, even if fleeting — and then goes out of business without returning the copyright to the creator (even if that was the intent, and was reflected in the publishing contract that way). That Congress still got it egregiously wrong shouldn't surprise anyone, though... because in the mid-1970s, it wasn't just Nimmer-worship; it was worship of the first edition of Nimmer.
In 2011, paid digital downloads of music (by some measures) exceeded CD sales. Leaving aside the reliability (or not) of the data and conclusions, it points to an interesting psychological and marketing issue: Redefinition of what is "the Work" in which the public is interested. This is perhaps most obvious in classical music; few people, after all, download just the second movement of Beethoven's Ninth Symphony. The almost-iconic status of the Fourth Movement (with the "Ode to Joy") is truly exceptional in classical music; instead, the Work is the Ninth Symphony as a whole, which (until relatively recently) required not just a whole CD, but two vinyl discs. Conversely, in "popular" music, since the late 1970s the integrated (or "concept") album has gone out of style. People just don't refer to The White Album's marketplace successors as the Work any more. In turn, that makes the relatively small, discrete subunits of popular music that are collected together on a single CD each individual Works under the measures of the marketplace... and this is particularly so for albums coming out of the Nashville-based labels, because album construction is even more marketing-dork dominated in that subset than elsewhere (where it's still endemic).

Implications of this shift as they concern electronic, and even printed, works of fiction are left as an exercise for the increasingly frustrated reader.
Jig the Goblin's sugar daddy poses for fantasy covers. Your eyes will not thank me, but the manufacturers of BrainBleach™ will. It also reminds me of a client's dismay at having a tramp stamp thrown onto her protagonist without any prior notice; the perceptive may have noted that since then, in that bestselling series, the protagonist has been posed so that any hypothetical tramp stamp would not be visible...

I'm going to close today with something that is not a sausage; consider this the real meat of the meal. The United States Court of Appeals for the Tenth Circuit yesterday upheld an injunction granted against Oklahoma's voter-approved "anti-Sharia" referendum, remarking near the end:

Appellants argue that the preliminary injunction interferes with Oklahomans' fundamental right to vote, prevents enactment of the voters' will, and "discourages the voters from participating in the election process."

Federal courts should be wary of interfering with the voting process, but we agree with the district court and the Sixth Circuit that "'it is always in the public interest to prevent the violation of a party’s constitutional rights.'" "While the public has an interest in the will of the voters being carried out … the public has a more profound and long-term interest in upholding an individual's constitutional rights." [S]ee also Cate v. Oldham, 707 F.2d 1176, 1190 (10th Cir. 1983) (noting "[t]he strong public interest in protecting First Amendment values").

Awad v. Ziriax, No. 2010–06273 (10th Cir. 10 Jan 2012), slip op. at 36 (PDF) (ellipses in original, some internal citations omitted).

Leaving aside that, from a policy perspective — indeed, from many policy perspectives — this is the correct outcome, it also points out the real difference between a representative democracy founded on the rule of law and pure populist direct democracy: In the former, there are limits on what the body politic is allowed to do to subsets of the body politic (however vague and inconsistent); in the latter, there are not. That, however, is just the starter course, because the actual meat (I'm not sure whether it's a roast, a stew, or a steak) comes from the Supreme Court's hearings yesterday on the FCC's ban on so-called 'fleeting indecent speech' (and, specifically, the seven words you can't say on radio/television). I have a challenge for the majority in Citizens United, and for those who support the concept that "money is [political] speech:" Make a principled distinction that justifies treating money not as a mere enabler of speech, but of actual speech that necessarily invokes First Amendment protection... that simultaneously justifies treating so-called "four-letter words" and depictions of "naughty bits" as nonspeech that is outside the scope of First Amendment protection while not overturning Cohen v. California, 403 U.S. 15 (1971), which held that a student protestor could wear a jacket proclaiming "Fuck the Draft" without unlawfully denigrating the dignity of a court.

In short, I challenge the Supreme Court to demonstrate in a principled way that even though money is speech, broadcasting the word "fuck" is not. "Because a bunch of white guys in black dresses said so" is not a principled way!

Labels: censorship, civil rights, copyright, intellectual property, jurisprudence, mass media, politics, publishing

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Sausages?

Internet link sausages, as frequently appear here, are gathered from uninspected meaty internet products and byproducts via processes you really, really don't want to observe; spiced with my own secret, snarky, sarcastic blend; quite possibly extended with sawdust or other indigestibles; and stuffed into your monitor (instead of either real or artificial casings). They're sort of like "link salad" or "pot pourri" or "miscellaneous musings" (or, for that matter, "making law"), but far more disturbing.

I am not responsible for any changes to your lipid counts or blood pressure from consuming these sausages... nor for your monitor if you insist on covering them with mash or sauce.

Archives

Warped Weft

Now live at the new site. I have arranged some of the more infamous threads that have appeared here by unravelling them from the blawg tapestry (and hopefully eliminating some of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.

Links of Interest

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Writer Beware and the Writer Beware Blog provide essential knowledge for writers who don't want to be ripped off
Writing-World.com published by the former managing editor of the now-defunct Inklings
Agent Research & Evaluation provides both free and paid analyses of literary agents
US Copyright Office, including both registration forms and records and quite a bit of other helpful information
Trademark Electronic Search System (TESS) allows searches of granted, pending, and some rejected trademark registrations
US Supreme Court Opinions from the current and past couple of terms
Law Library of Congress includes statutes for free
The Public Library of Law can help you find the law... but not use it in court, as many of its resources are not in proper form and do not provide all of the citation information needed in court papers
Legal, free e-books are available through Online Books (University of Pennsylvania) and Shakespeare (MIT)
Legal, free music is available through
- ClassicCat.net (what kind of music do you think you'll find here?)
- Music.Download.com (long-awaited successor to MP3.com)
- Janis Ian (artist)
- John McCutcheon (artist)

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

A blawg is sort of like a blog on legal issues, but usually has a lot more links to outside resources (other than other blogs) than does a typical blog. Scrivener's Error is a blawg, not just a blog. You can find other blawgs at < ? law blogs # >.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the Supreme Court, don't forget SCOTUSBlog.
Some academics' blawgs with a variety of political (and doctrinal) viewpoints:
- Professor Anthony Arend (Georgetown Law)
- Professor Stephen Bainbridge (UCLA Law) (aka "The Perfesser")
- Professor Jack Balkin (Yale Law)
- Professor Dennis Crouch (Missouri Law) (better known as Patently-O)
- Professor Michael Froomkin (University of Miami Law)
- Professor Eric Goldman (Santa Clara University Law)
- Professor Rick Hasen (Loyola-LA Law)
- Professor Brian Leiter (U of Chicago Law/Philosophy)
- Professor Lawrence Lessig (Stanford Law)
- Professor Michael Madison (Pitt Law)
- Professor Rebecca Tushnet (Georgetown Law)
BoingBoing, by speculative fiction writer (and 'net activist) Cory Doctorow, is quite hostile to copyright enforcement efforts, particularly regarding file-sharing
The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance
Cyberlaw (Stanford) has its agenda grounded firmly in the so-called "digital commons," which might make a bit more sense if any of the advocates of that viewpoint understood diddly-squat about population ecology
The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

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