|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.|
link to: 12:16 [GMT-8]
It's not that these are Portuguese internet link sausages — it's merely that they're linguistic to one degree or another.
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...
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 59. 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.
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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.
Now live at the new site. I have arranged some of
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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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 # >.