18 December 2012


If there is a theme to this platter of link sausages, it is King Canute commanding the tide to stop... or, conversely, just pretending that change isn't happening.

  • The publishing world continues to change, in both obvious and nonobvious ways, and it's bringing up the usual quotient of false nostalgia. In about 140 'net-years (which is to say some time in 2016 or so), someone is finally going to have enough perspective on this mess to take us to and through Don Quixote de la Mancha's electronic library, looking something like this:

    ‘What bundle is that?’ asked the curate.

    ‘This is,’ answered Master Nicholas, ‘Don Olivante of Doctor Laura.’

    ‘The author of that book,’ exclaimed the curate, ‘composed likewise The Garden of N-Words, and, in good sooth, I can scarce resolve which of the two works is truer, or, to speak better, is less false; only this much I can determine, that this must go to the yard to be burned, being a book foolish and arrogant.’

    ‘This that follows is O'Reilly of Hircania,’ said the barber.

    ‘Is O'Reilly there?’ asked the curate. ‘If so, in all honesty he must briefly rest in the bonfire, in despite of his wonderful birth and famous adventures; for his boring, harsh style deserves no greater favor. To the bonfire with him, and this other, good masters.’

    ‘With a very good will,’ agreed old Mumpsimus; and immediately commended O'Reilly of Hircania to the bonfire with great enthusiasm.

    ‘This next one is Buckley,’ said the barber.

    ‘It is an ancient book,’ replied the curate, ‘wherein I find nothing meriting pardon; let him, without any reply, keep company with the rest on the fire.’ Forthwith it was done.

    and build it beyond a single short, sharp scene that devolves to product placement instead of real satire — and preferably one not involving book-burning...

    Then, too, there's the problem of the effect of libraries on e-book sales — which is thus far unresolvable due to the absence of any replicable data whatsoever. Meanwhile, the "commercial-skipping" feature on Dish Network has raised the ire of broadcasters clinging on to their existing model of ads-at-every-opportunity, at least here in the US. I don't have any metrics to compare it to any even arguably similar markets... and that's going to get a lot harder anyway, given the proposed merger of Nielsen and Arbitron (presuming that passes antitrust scrutiny, which it damned well shouldn't). One can read between the lines here regarding the transition of magazines from newsstand to e-book reader... but that would be anticipating tomorrow's tide, which is cheating. Unless one can predict that the moon will be at approximately the same point in the sky a few minutes later tomorrow, and thereby predict the tides.

  • Perhaps, instead of ads, product placement and alliances are a better plan. Although the story never discusses it, the license fee must have been hefty... although one must question how much of it will end up on GRRM's pockets, as opposed to mere downstream exploiters... like Instagram. Which leads to an interesting conundrum: How will Instagram treat a photograph/image that is itself unauthorized, such as an "unlawful" screencap of The Hobbit taken on a cell phone in a crowded theater (while nobody is — yet — yelling "fire")?

    This exposes the complex crosscurrents of the First Amendment (and, overseas, less-salubrious free expression memes), artistic inspiration, branding (and its origin in consumer protection theory, not in economic exploitation), and the permission/enforcement system. But that's theory for another time... largely because explaining even the smallest part of it runs to 8,700 words in the most recent draft, and even that is incredibly shallow. It's simply not amenable to single-viewpoint allegory.

  • One thing that is not changing, though, is the tendency to force single-factor/single viewpoint allegory upon works of fiction (and, for that matter, life... as in Newtown). This is an unusually shrill piece for even The Atlantic, and reflects an abject failure to actually read the damned book before making up one's mind. Far be it for me to claim that a work of Western literature is completely devoid of influences from christianity — it's part of the background and can't be avoided, even in the negative spaces (cf., e.g., Rushdie's Midnight's Children) — but reducing a depiction of complex socioeconomic circumstances, individual ambition, and confrontation with the Other that follows the structural model of the Norse sagas to Pilgrim's Progress is more than a bit foolish. Bluntly, there is very little violence in Jackson's The Hobbit (at least the part thus far released) and The Lord of the Rings that is not at least implied in the respective books... and reactions to feelings of powerlessness are far from a proper basis for christian allegory.

    Maybe this is my fight against the tides — attempting to beat back the forces of ignorance and reductio ad absurdem. If so, so be it: We all need a little futility to keep us on our toes.

  • Allegorizing Tolkein (frankly, his works are too complex for mere allegory) is, in some ways, nearly as offensive as a certain "church"'s plans to disrupt the Newtown funerals and appropriate them for their own purposes. Now that I think about it, that sounds a great deal like Sauron's intended use of the various rings, doesn't it...
  • At times, like last Friday, "reality" is nearly as crazy as opera. The way the media covered the Sandy Hook Horrorfest, one might have expected Don Giovanni to emerge for an aria and seem more reasonable than any of the anchors in their incessant recitatives, before immolating himself (live on national TV) on a Twyla Tharp-inspired set. There needed to be some Verdi in there, too; perhaps Count Luna romancing his love, Leonora (a new vice president of the NRA). That still would have seemed more real than the media coverage.
  • Even — or perhaps especially — language changes... especially on teh internets. Which doesn't keep people from disagreeing on what those changes are, either. And is nothing at all like disagreements over the level of scientific verisimilitude required in science fiction. Nope — no relationship there at all.
  • One aspect of "tide" (probably closer to "red tide" than anything else) in intellectual property disputes concerns not so much the substance of the claim as which courts may hear the claim... and under what law. The Ninth Circuit issued an interesting and provacative opinion yesterday that greatly expands the scope of where a defendant in a copyright matter is subject to being sued. Although it seems at first blush that Grokster might already have led to the same result — if you aim your infringements at potential "customers" in jurisdiction x, you're subject to being sued there under jurisdiction x's law — the opinion yesterday in Washington Shoe, No. 11–35166 (PDF), goes well beyond Grokster and implicitly challenges the applicability of Asahi to the internet at all, let alone in intellectual property disputes. (Frankly, this is long overdue; Asahi was not all that well thought out when it was first issued, and concerned means of obtaining jurisdiction over a significantly-distant-from-the-harm defendant.)

    By implication, Washington Shoe challenges the notion that jurisdiction and procedure can be judged in a nice, clean laboratory setting in all contexts, rather than the messiness of the real world and the necessary use of field-testing kits by less-than-well-trained street techs. Regardless of which side one comes down on in the dispute (and this really is a binary dispute: Either everything is always lab-clean, or there are exceptions that must be dealt with), the legal system needs to do a much better job of confronting that dispute. Then, too, it calls into question the somewhat illusory "state sovereignty" notion in US law, and beyond that the viability of sovereignty of any kind as a jurisdictional shield in civil matters. I fully realize that there are a lot of riptides in this inquiry...

  • Much more disheartening is the undertow of laches being asserted against victims of government expropriations and their families. This morning, the Second Circuit affirmed dismissal under the state-action doctrine (with a significant laches undertow) of yet another family's claim against a museum, this time the Met. In Konowaloff (PDF), the Court held that despite lack of recognition of the Soviet regime at the time of confiscation by the US, and despite the dubious nature of the transaction, the Met could trace a chain of title to an act of state... and therefore Konowaloff is out of luck.

    This also presents an interesting copyright issue that is seldom confronted, probably because it relates (or seems to relate) only to extremely high-priced, one-of-a-kind works in the fine/visual arts. Put as simply as possible, who owns a Work? In this particular instance, there's no question that the Cezanné painting in question is not in copyright in the US, or indeed in France. Is that, then, the limit of "ownership" of the specific Work, as it is embodied only in a marginally reproducible original? What does that imply for ownership of older cultural artifacts... especially when the ownership is being asserted not for the purpose of preservation from harm, but for who may profit from it? There are deep cross-currents here just beneath the breakers; I don't pretend to know definitive answers, and anyone who claims they do has a hidden (or not-so-hidden) agenda of personal interest.