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.

23 January 2013

link to: 08:03 [GMT-8]

Internet House of International Link Sausages

So as to avoid any accusations of being US-centric (yeah, right, with the unusually-high-if-not-entirely-satisfactory proportion of links to overseas and non-English-language stories here), I am explicitly declaring this an international link sausage platter. And it's at least as valid a declaration as that for a certain diner chain being "nternational" because it has some Yankeefied toppings inspired by foreign toppings for entirely different (but similarly shaped and cooked) hotcakes...

This blawg's only feline friend the IPKat notes two complex, technical, and extraordinarily-important-to-authors cases from the Court of Justice of the European Union. First up, the CJEU moves closer and closer to the information/expression divide as a fundamental principle of law — although it does not use those terms — in declaring that facts and highlights of football (soccer) matches are mere news for which the original broadcaster is not entitled to compensation when reused in a news broadcast. Unfortunately, the decision itself is not yet available on the official website — and probably won't be in English anyway! — but the nice kitty provides a summary of the convoluted European style of rulings that is as commendably clear as possible, specifically including links to the underlying provisions (something that, sad to say, is seldom present in the opinions themselves...). This is important to writers in all media because it tends to establish that the first provider of a statement of fact has only minimal rights to control use of that statement by others, or demand compensation for that statement from others. This is not (quite) akin to the so-called "hot news" doctrine (and there really, really isn't a good link I could provide, because by the time anyone goes to the link there will be changes at the margin — it really is evolving that rapidly, both in law and in practice) in the US. More critically, it is important to writers who rely upon third parties' accounts of factual events for the facts... especially in Europe, and by "in Europe" I mean both writers in Europe and events in Europe.

But I'll raise a pint of ale to the beginning of the end of the Bud wars. I'm less optimistic than is the nice kitty that Anheuser-Busch, Inc. v. Budejovický Budvar, T–225/06 renv, really marks the end of this dispute; it is almost inevitable that it will be appealed back to the Court of Justice, and the ruling is — in typical European style — nondispositive. This is a longstanding dispute over who has the right to the mark "Bud" associated with beer, but not necessarily just for beer, in the EU — a relatively small brewery in Austria that puts out a pathetic lager, or an international conglomerate (now, ironically enough, an "EU citizen" from Belgium) famous for rebottling the urine from its "iconic" Clydesdales and selling it as beer. The key point seems to be that "use in commerce" must be purposeful and significant to maintain a priority claim to a mark... and the equivalent of a few dozen cases of beer in a particular territory out of a sea of beer does not suffice. The unclear implication is that a later user can, in fact, gazump a trademark claim of the "senior user" if the "senior user"'s use is essentially noncommercial — merely placing material into the stream of commerce is not enough by itself, there must be some kind of discernable and substantial use of the stream of commerce. The downside of this is that, by implication, an unsuccessful marketing campaign can lead to loss of rights in the mark; by US analogy, perhaps Edsel would not be protectable. I need a few pints of decent ale to really assimilate this decision. And it's nearly Miller Time over across the pond... oops.
Those of us who don't use Ticketbastard because we don't like scalpers — and believe that Ticketbastard's methods are merely semilegalized-through-semirespectability disguises for scalping — got some support from the Court of Appeals of Maryland, which ruled that the particular methods used fall within an antiscalping ordinance in Baltimore. This now goes back to the US District Court for the District of Maryland, but it's a considerable blow to Ticketbastard's business model of hiding "fees" beyond the face value of every ticket sold. Certain e-book retailers should be wary...
The Iowa Supreme Court embraced a concept of federal law in extending libel protection to online news sources, if not all the way to individual online postings. That this is a necessary consequence of 47 U.S.C. § 230 isn't even mentioned, because it was decided entirely under state law (for some incomprehensible reason not mentioned in the article). The key point is that the Iowa Supreme Court formally recognized that a change in context means that it must change its interpretation of its state constitution to reflect that context. Now, if we could just get the U.S. Supreme Court to do the same...
Anecdotes aren't enough proof of anything, and never have been. Data-mining, by itself, isn't either; one must ensure that the date one mines actually applies to the question at issue, and that the data is not biased by underinclusion or overinclusion. Drawing conclusions requires actual education — not just training in particular lab techniques. (Of course, proper training in lab techniques includes understanding why a particular technique works, or doesn't work... but that's for another time.)
There's an interesting quasidebate over reading writers one cannot stand that, as implied in one of the relatively respectful responses I've found online, flounders primarily because its choice of examples is so inappropriate. Evelyn Waugh and Edmund Burke are hardly the best examples of either miserable people or miserable substance expressed through admirable writing; to stick to the letter E for the moment, Ezra Pound is a much better example. Pound was much more extreme than either Waugh or Burke at both ends: a miserable human being who expended much effort as an antisemitic fascist propagandist in elevated prose, founded on his truly elevated poetry. This is one of the few times that something that appears to be an anecdote really is data; in this particular instance, the "debaters" did not fully examine the validity of their data, because the single data point/anecdote of Pound calls their reasoning into question. The real issue isn't how much repulsiveness (a moderate amount, in the instances of Waugh and Burke) it takes to undermine esthetic appreciation (as to their works, again a moderate amount); it is whether the extreme case — and, in the twentieth century, Pound approaches the extreme case, and is probably the paradigmatic extreme case — indicates that there is still a "quantitative" inquiry to undertake. By limiting their arguments to data that ultimately doesn't either prove or disprove their respective points, these debaters failed to advance their respective arguments.

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

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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 (UC-Irvine)
- Professor Brian Leiter (U of Chicago Law/Philosophy)
- 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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