Post-Sick Sharks

After a day out sick and at about 60% of capacity (I think I need a nap), I don't want to hear any comparisons between this platter of internet link sausages and sick chickens... however justified they may be.

• Thanks to three decades of partisan idiocy, the Department of Justice has refused to block Random Penguin. That's not the same as approval, nor is it any guarantee of anything; the European authorities are still looking at this deal, and actual behavior is going to remain an issue for further scrutiny. Ironically, this may benefit authors by forcing greater scrutiny of the monopsony issues in publishing, such as the uniform "25% of net" offered for e-book rights. That, however, requires sophistication in antitrust policy and analysis that is outside the weltanschauung of any political appointee...
• Of course, at the same time publishers — including the parent of Penguin USA — are trying desperately to make people pay twice to learn about science by opposing the wholly inadequate FASTR bill. Who said publishers can't have it both ways?
• Then, having the government's "help" in a publishing context is more likely to be a bureaucratic, nonsensical hindrance. Given that the majority of classified documents are not properly classified — and that the vast majority of classified documents are no longer properly classified — this is a real problem. Here are the official definitions of classification, from highest to lowest:

  The original classifier, again using reasoned judgment, must determine which level of classification is to be applied. If there is significant doubt about the appropriate level of classification, the information shall be classified at the lower level.

  a. Top Secret shall be applied to information the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security that the original classification authority is able to identify or describe.

  b. Secret shall be applied to information the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security that the original classification authority is able to identify or describe.

  c. Confidential shall be applied to information the unauthorized disclosure of which reasonably could be expected to cause damage to the national security that the original classification authority is able to identify or describe.

  DOD Directive 5200.1 § 2-304. Now it is entirely possible that some or all of the particular information that Schaffer wants to rely upon in his book falls inside these definitions. The odds, however, are against it; and the odds are heavily against all of the material being properly originally classified. Note that "might cause embarassment or commercial disadvantage to a patron, whether in or not in the government" is not a valid consideration for the classifying authority. Note, too, that the potential damage must be identifiable or describable at the time of classification... and "we think some bad people we can't identify at this time would want to know this and might use it for propaganda" doesn't seem to me to fall inside that definition.

• "Johnson" demonstrates, rather definitively, that the Flesch-Kinkaid statistic for measuring language complexity is dumber than it used to be. Consider, for example, that "internet" has replaced "remotely networked computerized data sharing" in official government documents between the early 1970s and now... but that "internet" is a vastly more complex concept. Care to guess which one triggers a "higher" Flesch-Kinkaid score?
• Across the pond, the grievously underread 1709 Blog (sure, it's primarily for lawyers, but it's refreshingly clear... especially compared to European judicial decisions) has had several recent items that deserve thought from authors and other creatives — even Americans. If you care about piracy, you also necessarily care about the means of preventing piracy and the means of finding pirated copies. Then there's the question of what is in copyright in Russia, which is a fairly significant market... and a fairly significant base for pirates, for that matter.
• Also from overseas, as Israeli court rules that a full-text blog/blawg feed is perforce a license to copy. Those of you who whinge at me about not providing a full-text feed should know that I suggested this to be the case over a decade ago... and it's why I provide only a limited feed.
• Over at Copyhype, Terry Hart offers a useful commentary on one aspect of the orphan works problem. The most important thing he says is at the end (footnotes omitted):

  When it comes to unpublished works, the Copyright Act of 1976 did not have the effect that groups mentioned at the beginning of this article say it had: all unpublished works were protected before the Act under common law copyright and protected after the Act under federal law. But more importantly, because of the differences between the two forms of copyright, the Act arguably opened the door for a lot more unpublished works to be made publicly accessible by libraries, museums, and archivists.

  Under the 1976 Act, unpublished works would eventually fall into the public domain, unlike under common law. And before the copyright term ends, other parties are now able to make fair use of them. This is especially important for libraries, a number of whom assert in their orphan works comments (erroneously, in my opinion) that the fair use doctrine shields the bulk of their uses of orphan works under mass digitization projects. Additionally, Brandeis and Warren suggest that so-called “non-expressive” uses of unpublished works under common law — e.g., indexing, computational linguistics, natural language processing — were previously not allowed. Under federal law, they are. Again, this is important since many mass digitization projects (as well as search engines like Google) have derived great benefit from these “non-expressive” uses of copyrighted works.

  Of course, this isn't the entire orphan works problem; on the other hand — unlike most of the submissions to the ongoing Orphan Works Inquiry at the Copyright Office — it doesn't pretend to be, either.

• IMNSHO, the primary cause of the orphan works problem is that copyright law and the copyright discussion have become the almost exclusive domain of transferees of various kinds, with little voice for the actual creators. Consider, for example, who holds the copyright interests in every reported decision on film and/or music piracy (hint: It's not the artists and/or composer-songwriters and/or screenwriters...). A recent lawsuit raises this question in parallel for patents, questioning whether Congress had the authority to redefine "inventor" in the recent patent reform statute. I've been asking the same question for a couple of decades concerning the work-for-hire doctrine in the Copyright Act... but I've not had a suitable case combined with suitable resources.
• The Passive Voice links through to the idiocy of allowing beancounters in publishing to confuse "sale" with "consignment" because they don't know what they're actually doing. Gee, that doesn't have anything whatsoever to do with that first sausage on the platter today, does it?
• Perhaps a few of those books were preordered by minimum wage retail workers. Of course, the world of the entitled neocon doesn't include too many people who actually have to live on the minimum wage.