- This is more than slightly annoying, and demonstrates — in some combination — the idiocy of New York commercial publishers; the idiocy of best-of-year lists based on advance (that is, before national availability) reviews; and the inordinate strictures imposed on libraries (especially for electronic editions): Of the NYT's "ten best books of 2012", only seven are available at the San Francisco Public Library, and of these only two are available in electronic formats. Not acceptable... and it's hard, but not impossible, to blame the library. If nearly three-quarters of the "best of the year" books that are available at a library are available only in print, what does that do to the motivation to create pirated editions? Answer: All of those books (that have been released as of 30 November) are available as pirated e-books, and it took me under four minutes to confirm that.
- Meanwhile, some in publishing are starting to question DRM (and its utter ineffectiveness, at both practical and theoretical levels). Combine this with B&N's latest shenanigans treating purchases of e-books as limited-time licenses tied to credit cards, not to customers — my Visa doesn't read much, so I don't have this problem, and I'd strip DRM from any e-books it purchased anyway — and I'm starting to think that maybe I was too generous to publishing in the preceding item.
This brings up some disturbing echoes of the "we want your library records" provision of the PATRIOT Act; if B&N is deleting books from records, there's only a very small step — technologically, no real change at all — to reporting who purchases which book to the Geheinstaatssicherheitsbüro. That's not something I'm too pleased with. Can you understand why that concerns me? Anybody? Anybody? Montag?
- At least publishing hasn't yet achieved the silliness of the art world... although I've seen some signs at the edges.
- In the most obvious civil-procedure-nerd bit of news from Friday, SCOTUS will review the gay-marriage decisions from the 2d and 9th Circuits. The nerd-joy comes from the standing and procedural questions that the Court added to the list of things that the lawyers must discuss.
Standing? What the hell is that, and why should I care?
In US constitutional law (and, to a lesser extent, all of the common law), the most significant restriction on courts' power is that they can only decide actual matters before them. In US constitutional parlance, that means a "case or controversy." The problem in both Windsor (2d Circuit, on the constitutionality of DOMA) and Hollingsworth (9th Circuit, on the constitutionality of Proposition 8) is that the executive branch that would otherwise have been responsible for defending the law refused to do so. In Windsor, a group of Heffalump legislators intervened when the Obama administration (correctly, in substance) refused to defend DOMA; in Hollingsworth, a group of proponents of Proposition 8 intervened when the California Attorney General (correctly, in substance) refused to defend Proposition 8. And therein lies the problem. It's hard enough when one is on the plaintiff's side asserting rights one does not directly have, under the theory of the private attorney general (see, e.g. Cal. Bus. & Profs. Code § 17204; or, indeed, any representative action, such as Brown). It's much harder indeed when the proper defendant concedes, but someone else who is not the defendant objects that the defendant should not have conceded.
If there is a real "split decision" in this matter, it could arise through the Court deciding that the coalition of Heffalumps had standing to defend DOMA (there's some Vietnam-era precedent supporting this posture), and proceeding to the merits, but that the proponents of Proposition 8 did not have standing to defend, and vacating all of the court opinions below. That leads to a bit of circularity in the Hollingsworth action: The California Supreme Court determined that under its rules, the proponents of Proposition 8 had standing in California courts... but since this is a suit based on federal rights, any defendants have the right to have the dispute heard in federal court. That this can happen at all calls into question the definition of "case or controversy" more than it does anything else... but that's not going to be revisited; the Court has punted on examining the fundamental nature of "case or controversy" at every opportunity since the 1930s.
I've got to get more regular about posting. Perhaps this blawg needs some 'net prunes...