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.

09 January 2013

link to: 12:16 [GMT-8]

Linguica

It's not that these are Portuguese internet link sausages — it's merely that they're linguistic to one degree or another.

Language is not static; over time, and for that matter over distance, it changes. German is notorious for the grammatical differences between the formal and informal second person — verbs and tenses are different (subtly so, but it's not just conjugation). And now it's changing further before our eyes... or at least on our tongues.
Apropos of the preceding item (and, in fact, the preceding platter), there appears to be gang warfare over writing and documentation style, with real casualties. Or as real as the fiscal cliff and debt ceiling, anyway.
Professor Madison confronts the tip of the iceberg in questioning the relationship between containers and content. I suggest that they're inextricably intertwined. On the one hand, pricing of copies of creative works is almost entirely based upon content-independent (or at least largely independent) aspects of the container, and those copies seldom vary more than a single order of magnitude. For example, in trade publishing, there's less than a single order of magnitude between a mass-market paperback (currently around $8) and a limited-print-run deluxe-but-not-handmade, leather-bound casebound edition (currently around $65 on average); in between, one finds the trade paperback, the "standard" casebound, the film tie-in special cover edition, and so on. One can make similar assertions across the range of creative works that are distributed in statistically significant numbers of copies, and one won't be far wrong.

Conversely, though, let's look at types of art that are not distributed in copies. Ticket prices for live musical and dramatic performances vary by one helluva lot more than a single order of magnitude, even among "artists" of similar critical reputation, and depend almost entirely upon the characteristics of not the "container" (stage dimensions, room acoustics, etc.), but upon location and seating capacity. Similarly, prices for "originals" in the visual arts vary by multiple orders of magnitude — seemingly by whim — even within the same artist's output, let alone across artists, or eras, or cultures, and without regard to the intrinsic (materials-based) value of the pieces being compared.

The real fun comes when one considers the interplay between container and content. For example, why is a "novel" the length it is? Why aren't short stories released individually? Why are feature films the length they are? What effect do these container boundaries have on the content of the works? Exhibit A: compare the so-called "director's cuts" of Brazil and Apocalypse Now! to their respective theatrical/commercial releases; one of the director's cuts is vastly superior to the theatrical release, but conversely for the other work; in each case, the shorter version was dicated entirely by container-centric considerations. The fundamental difference, as implied by puppeteer/author Mary Robinette Kowal, is the simultaneous overlap and distinction between "audience" and "market" for a reproducible work.

The real fun begins when one takes works that were not reproducible at the time they were created and enables reproduction later. Logic is more consistent and easier to follow in Wonderland than in those circumstances...
A fascinating decision — at least, as a civ-pro nerd and IP geek I find it fascinating! — on athletic shoes may have some really important implications for fan fiction... and the so-called Creative Commons License. Today's unanimous (5-0-4 — there was a four-justice concurrence) decision in Already, LLC v. Nike, Inc., No. [20]11–982 (09 Jan 2012) (PDF), holds that certain covenants not to sue are "good enough" to make a counterclaim for trademark invalidity moot, and force dismissal of that counterclaim (albeit without prejudice). In this particular instance, Nike had sued Already for infringement trademarks arising from its "Air Force 1" line of shoes; Already counterclaimed that the trademark was invalid. Nike then created a covenant (written promise) that it wouldn't sue for existing infringements of that line by "small" shoe companies like Already, and filed that covenant with the court dismissing its own claims. That left Already's counterclaim against the mark's validity... but Nike also moved to dismiss them on grounds of mootness. The decision this morning says that Nike did enough in this case to truly moot Already's counterclaim, meaning that the entire case is dismissed. Since it's substantially more difficult (procedurally) to file a purely offensive action to invalidate an existing trademark, that may well completely eliminate the challenge.

So what does that mean for fan fiction? Or for the CCL?

The key in both instances is going to be whether the covenant not to sue — whether from the author, or the CCL (because it is not a license, but merely a covenant not to sue) — goes as far as Nike did in its specific covenant. This is the "voluntary cessation doctrine": The party asserting that a voluntary cessation moots a pending matter must demonstrate, pretty convincingly, that it cannot merely "return to its old ways." Slip op. at 5–9. And that's where fan fiction and the CCL get... interesting. An author's statement of approval of fan fiction, or limits on what might be approved, fails the Deakins test in almost every respect, and simply cannot be relied upon. (Those of you who argue that this is "about" trademark law, and fan fiction is purely "about" copyright law, are wrong at both levels — this is "about" civil procedure and constitutional standing, and fan fiction absolutely implicates trademark law depending upon how it is distributed and whether it tarnishes the original.) The CCL is only marginally better, because it's not binding on heirs and can't survive bankruptcy (and certain other kinds of business reorganizations). So, under Already, an author's promise concerning fan fiction (of the type typically offered), or the CCL, would appear not to be available as offensive tools, but only as defenses once a holder asserts an infringement claim. And that is inconsistent with the stated purposes of the CCL, if nothing else.

Labels: arts, copyright, culture, intellectual property, jurisprudence

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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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