19 October 2018

Unreviewable Circuit Split(s)

Today, the Eleventh Circuit issued its second opinion (and, by my count, the eleventh substantive opinion overall) in the nearly-decade-old Cambridge Univ. Press v. Georgia State Univ. matter — the "electronic coursepack" case. You can find the opinion on the Court's website (PDF download). Unfortunately, the opinion is opaque, a bit oblivious, and fails to disclose the circuit split(s) at all.

The core of the opinion — and, ironically enough, the part that discloses the circuit splits to those of us who actually read both the Copyright Act and opinions interpreting it, instead of relying on half-assed/less-than-a-quarter-considered self-interested bullshit spewing forth from various "advocacy" organizations that never actually represent the full scope of those they claim to be speaking for — is, naturally enough, at the end.

We affirm the order denying the publishers’ request to reopen the record, but we vacate the judgment entered on remand. The district court must reinstate its earlier findings that factor four strongly disfavors fair use [under 17 U.S.C. § 107's framework] for 31 of the 48 excerpts. The district court must eschew a quantitative approach to the weighing and balancing of the fair-use factors and give each excerpt the holistic, qualitative, and individual analysis that the Act demands. And the district court must omit any consideration of price from its analysis of the third factor. Because the district court’s award of attorney’s fees and costs was based on its erroneous fair-use analysis, we also VACATE that award and the underlying determination that the University is the prevailing party.

Cambridge Univ. Press v. Albert, No. [20]16–15726 (11th Cir. 19 Oct 2018) ("Coursepack XI"), slip op. at 24–25. This is a smackdown for the "reuse" community that will entail substantial howling and claims that the decision eviscerates the Internet.

In no particular order, here are the circuit splits that I see Coursepack XI either creating or confirming. All deserve Supreme Court review, because all influence both individual conduct and specific litigation. I am… doubtful on whether there are even three votes on a petition for certiorari from the members of this Court now that Justice Kavanaugh has taken his seat.

  • At a fundamental level — one never acknowledged by this court, nor virtually ever by any other — this is a rejection of the fifth fair use factor. Section 107 provides for four factors to be considered "among others" in determining whether a specific use qualifies as a fair use: Character of the (re)use; the nature of the source work; the amount of the source work that has been reused; and the effect of the (re)use on the market value of the source work. Missing from this list is the pragmatic factor that usually dominates the decision to sue, the process of discovery, and the weights accorded the four factors: The administrative burden of obtaining permission for (re)use. This is the general class into which the "orphan works" problem falls. Here, the Eleventh Circuit has elsewhere in the opinion (pages 22–23 in particular) indicated that a substantial part of that administrative burden — the cost to the (re)user — is irrelevant. This is inconsistent with the Second Circuit's approach in the Google Books fiascos.
  • My mantra for two decades now has been that most copyright cases concern civil procedure and burdens of proof at least as much as they concern the details of copyright doctrine or the minutiae of originality determinations. Cf., e.g., Ellison v. America On-Line, Inc., 357 F.3d 1072, 1080 (reversing because the trial court improperly granted summary judgment by not considering a fact found elsewhere in the trial court's opinion). Coursepack XI is much the same. Today, the Eleventh Circuit rejects "mechanical" class-wide determinations of fair use. This, again, directly conflicts with the Google Books fiascos… which are not cited anywhere in Coursepack XI, and never characterize what was done by the trial judges in those matters as "mechanical" (although it undoubtedly was but for use of that word). Indeed, the closest the Eleventh Circuit comes to Second Circuit caselaw is citing a fragment from a marginally relevant opinion that doesn't quite mean what it says when considered "in light of the facts of [the] given case."
  • Coursepack XI also depends upon — but does not discuss — treating fair use as an affirmative defense that must be proven by a preponderence of the evidence by the party asserting fair use. This conflicts with the underlying assumptions in some mass-notification DMCA cases, such as Lenz v. Universal Music Corp., 801 F.3d 1126, later op., 815 F.3d 1145 (9th Cir. 2015) (holding that a DMCA notice may not be proper if the issuer of the notice fails to consider whether the complained-of (re)use constitutes fair use). And it sure as hell conflicts with the mantra of the internet "industry" and "reuse" community, both of which believe (without ever saying so) that there needs to be a bright-line rule that immunizes them from scrutiny by rapacious copyright owners who are seeking only to profiteer from culture. Or something like that.
  • Finally for the nonce, there's also an unstated circuit split with the Fifth Circuit regarding sovereign immunity of state actors. Georgia State University more probably than not qualifies as an "arm of the state" of Georgia, meaning that anything done specifically by it (or those standing in its shoes) is immune from copyright liability. Chavez v. Arte Publico Press, 204 F.3d 601 (5th Cir. 2000) (concerning a university press that is part of the University of Houston). To say the least, this area of jurisprudence is a mess; it also conflicts with substantial parts of the Google Books fiascos.

That's enough for now. If nothing else, this brouhaha is another exemplar for shifting all copyright matters to the Federal Circuit rather than leaving them in the regional circuits — if nothing else, at least the incorrect doctrine would be uniform, and consistent with the constitutional grant of power under Art. I § 8 cl. 8, which does not distinguish between "inventions" and "writings" except by acknowledging their respective existence. Too, that would be consistent with the internet "industry"'s call for broad, uniform protection for itself. But it would get things in front of judges with more knowledge of, or at least exposure to, both the limits and capabilities of science and engineering than is found in the regional circuits… funny how the internet "industry" isn't also calling for nonregionalized copyright appeals, isn't it?

Oh, you wanted to know the result? How pragmatic of you! The Eleventh Circuit basically held — although resubmitting on remand — that despite the inept presentation of the matter by counsel for the various publishers, the majority of the works (and perhaps virtually all of the works) that were taken for "coursepacks" had proper copyright claims, and that the fair use defense had not been established on its face but required reweighing. For a third time.

15 October 2018

Dear Tax Preparation Software Vendors

Bite me.

Really. I say this on 15 October because I've been forced to assist three different taxpayers panicking on the last day of their "normal" extensions because your software sucks so enthusiastically. In each instance, it was software design error, not what you so blithely assert is "user error." Here's just one example. A user of the program that sounds like it might begin with a fish — if only because it produces such fishy results — had done all of the work necessary to get her return ready to file. Over the weekend, even, so it's not purely last minute (one of the 1099s had to be reissued to her because it was sent to an old address). But your fishy program found a fishy error… and gave an incomprehensible error message, demanding that she go back to an "untitled" 1099 and enter the state in which it was issued. "Untitled" 1099? Well, there wasn't a 1099 captioned "untitled" in the list of 1099s. Instead, one had to go back into the list and review each one, and find that one was untitled: Untitled due to your stupid entry routine, in which if a user hits "enter" by accident twice (really easy to do on a tablet!) it closes the current entry form and starts a new blank one.

One would think that the resulting error message when the user does what comes naturally — backs out of that phantom form (whether a 1099 of some kind or a W-2 or anything else doesn't seem to matter) and assumes that the program is smart enough to see that since there's no data of any kind on the entry form, it should be ignored — would at minimum say "You started a {name of data form} but didn't enter any data. Delete that entire form?" But nooooooooooooooooooo, you vomit up the error message noted in the previous paragraph. Requiring the user to find someone who knows your fishy program's quirks that aren't in the bloody help (in-program or online) and can, with a couple of minutes' sleuthing, find the offending blank form and delete it. On tax deadline day while that user is caring for a family member in chemotherapy.

This leaves aside the inaccurate assumption that your programs and accounting paradigms — especially from that vendor with a parallel family of bookkeeping products whose name tries to imply speed — are accurate in the first place. For any author, creator, or anyone else who receives payments from exploitation of intellectual property on which they neither did labor nor took any legal action (such as signing a contract) during that year, not so much. And so on; all one need say is "Uber" to make things really interesting. Let's just say that the accounting models in your software are so conservative that Barry Goldwater would look like a flaming leftist.

If only to starve you assholes of more revenue from confused taxpayers trying to do the right thing and not engage in massive multimillion-dollar tax schemes that appear to cross the line from "planning" into "avoidance" and further into "evasion," I hope for a simplified system that makes people realize that even the IRS's screwed-up fill-in PDFs are good and simple enough to use. (How screwed up? On the 1040, the SSAN doesn't get printed in the right place… and one cannot actually put the date onto the 1040 for one's record copy, because that's a non-fill-in part of the form!)

01 October 2018

First Monday

It's the first Monday in October, and the Supreme Court issued its order list after the "Long Conference" today. Buried in the middle is one of the weirdest orders I've seen:

17-8910 JOHNSON, JOSEPH V. UNITED STATES

Because the Court lacks a quorum, 28 U.S.C. § 1, and since the only qualified Justice is of the opinion that the case cannot be heard and determined at the next Term of the Court, the judgment is affirmed under 28 U.S.C. § 2109, which provides that under these circumstances “the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court.” The Chief Justice, Justice Thomas, Justice Ginsburg, Justice Breyer, Justice Alito, Justice Sotomayor, and Justice Kagan took no part in the consideration or decision of this petition.

Order List, 01 Oct 2018 at 62 (PDF) (typography corrected).

So the junior justice, sitting alone, decides for the Court… presumably, he didn't need to answer the conference room door to do so.

23 September 2018

Living in the Past

Without claiming to be a victim or to speak for victims, I think I have some insight into why victims of sexual misconduct find it difficult to come forward at any time, let alone immediately. I don't claim this is definitive; I do think it a useful starting point in evaluating claims, both of guilt and innocence.

I spent the better part of a decade as a commanding officer in units ranging from about 300 total personnel on up. Several incidents during that period — years before law school — shaped my approach to these matters. Twice, I was the CO of a victim reporting a sexual assault; once, of the alleged perpetrator. Two of the reports were within two days of the alleged event; one was substantially later. (I also investigated a few incidents at the direction of higher authority.) None of the incidents, however, involved significant physical evidence that either supported or undermined the initial report. Trying to get truthful, accurate statements out of anyone involved, and out of any witness to the incident or its context, was incredibly difficult, and no doubt was quite difficult for the individuals being interviewed.

Those being interviewed know full well that the interviewer is going to be ripping off whatever bandages have been applied, whatever stitches were put in, and probe the wounds. Without anesthesia. With probably unclean fingers, in a very official setting and certainly not one's own space... especially when those fingers connect to bars or oak leaves on the shoulder instead of stripes on the sleeves, because power dynamics sure as hell enter into this. If you really don't think there are power dynamics involved — even for civilians — you've never raised a kid… and probably never been one.

It's incredibly hard to just listen. Not interrupt to ask for clarification on what matters to the interviewer's perspective. Not judge. Not bring in external perceptions of credibility, especially when those perceptions are at best second-hand and relate to things like "job performance" instead of what matters. Not improperly prompt a subject toward what the subject thinks the interviewer wants to hear. Not reject "I don't know" and "I don't remember" as valid responses. And, simultaneously, not ignore all of the problems with human perception and memory from even those with the best of intentions and no impairments.

And that's not as hard as volunteering to have those wounds probed, especially when expecting to not be believed, and when they haven't healed.

10 September 2018

The Price is (Alt-) Right

Professor Warren (I'm using the title she's earned that should get more respect than "Senator" after Thurmond and McCarthy and so many other miscreants) properly called for the "Resistance" to follow the bloody law: If they believe Trump is unfit for office, invoke the 25th Amendment. I'm actually rather pissed off that I had to go down eleven items in my search list before finding one with a non-misleading headline that doesn't miss the point entirely.

What this reflects, more than anything else, is the ahistoricity of the American media/conversation. From the 1950s until Watergate, there was a thread of fictional works that emphasized the duty of subordinate officials to follow the directives of the executive — even when they disagreed with them as policy matters — unless and until willing to pay the personal price for disobedience. Wallace's The R Document, Knebel & Fletcher's Seven Days in May (later adapted for a Kirk Douglas film), even Burdick & Wheeler's horribly mischaracterized (and overblown) Fail-Safe (either the unsatisfactory novel or the unsatisfactory film) were all part of the "national conversation" prior to Watergate, but disappeared. So, too, has the thread, as implicated in Seven Days in May itself: Now, the narrative almost always includes an immediate reward for "resistance." No one spends time in a Birmingham jail any more…

Instead, "resistance" — from the mildest speaking truth to power through active resistance up to whistleblowing — has lost the element that makes it appropriate: Perception of personal risk and the balancing act that prevents descent into anarchy. It's now as much a part of the playbook for personal aggrandizement as anything else; the rats leaving the sinking ship are demanding their fifteen minutes of fame (hoping to parlay that into a continuing slot as a pundit, which has much less risk of failure because it doesn't require the effort and expertise of actually making something happen and dealing with the unanticipated consequences) instead of doing anything to plug the leak… or prevent the next one. It's 20/200 hindsight from ignoramuses who espoused an ideologically correct policy and then discovered that policy didn't fit anything resembling facts (or even alt-facts). It's refusal to accept that Mark Felt neither sought nor obtained glory, riches, higher office, or that fifteen minutes through his acts of "resistance."

That's what Professor Warren is getting at, which you'll understand if you actually read/listen to her tweet (not linked; this blawg never links to that social media platform, but you can find it in Ms Martinez's article) or website instead of the misbegotten headlines and soundbites. Actions have consequences, and they're often mixed. That's perhaps too, umm, professorial a view for one to expect from a Senator elected in our broken two-party binary-merit system that forces us to choose the lesser evil all time because the choices we are presented are almost always evil; and, therefore, that's not what the media heard or continues to spin. The irony that so many of the commentators criticizing the oversimplistic soundbite view of Professor Warren's comment are (or at least portray themselves as) "resisters" who used that "resistance" as a stepping stone to a larger platform has escaped just about everyone.

disclosure: As a newly minted lawyer in the mid-1990s, I represented consumers in a number of class actions that were related to or going through the bankruptcy courts, and more generally in consumer finance. Professor Warren was a leading authority and provided valuable consultation on some of those matters… including, on more than one occasion, pointing out that one of the firm's dearly-loved positions was not defensible in law, but required a legislative fix if that was even possible.

27 August 2018

Overcomplicated Link Sausage Platter

Also overdue, overaged, and over the 'net.

  • As I've been arguing for decades, the courts by their very nature are not equipped to deal with disputes that even moderately approach science. The ABA's recent misguided "ethics" opinion on judges attempting to self-educate themselves is revealing; so, too, is the hoary old chestnut Palsgraf v. Long Is. R.R. Co., 162 N.E. 99 (N.Y. 1928), which reaches fundamental principles of tort law and responsibility by getting both the facts and accepted practices flagrantly wrong. (For starters, no one who handled fireworks or other explosives even occasionally would have accepted the handling of the stuff that went boom, even under 1920s norms, and it goes downhill from there.)

    But those are generic problems not tied to anything in front of any court at the moment, or at least not obviously so. Let's take a step back to methodology instead of factual or doctrinal sophistication, though, and see the impending problem facing the Supreme Court in multiple matters on its 2018 docket. Hint: What is the mathematics requirement for acceptance to Harvard Law School… both now and when the present justices were law-school applicants? <SARCASM>It's the same mathematics requirement for any other federal constitutional office, which explains a lot.</SARCASM>

  • Those problems are, however, tied to the various conceptual flaws in economic policy decisions. It's bad enough that there's criticism of the basis for behavioral economics (criticism, I should add, that appears at first glance to have corresponding flaws of its own, beginning with the distinction between designed-laboratory conditions and the messiness of the real world — and descending from there into the distinctions between means and medians, the very definition of the behavior in question, mixed motives…).

    Reaction profile diagram from Michigan State University, Chemistry 251–53 (Organic Chemistry)Time is also a problem. So are multiple pathways, multiple reactants, multiple products, activation energy, and most particularly capture of energy released. Economists don't ever ask the questions about capture, or even ask why long-distance runners don't just light a match and burn pure glucose to more "efficiently" release more profitenergy. Or, for that matter, ask what it takes to get that match in the first place, or how much "activation energy" it takes to light it… <SARCASM>Surely if it was as simple as mainstream economic thought implies — especially, but not only, various "trickle down" theories — nature and evolution would have gravitated that way. Instead, though, more complex organisms have more complex energy storage and usage systems.</SARCASM>

  • A more-recent piece in The Speculatator displays the usual problems with that publication's engagement with complexity. Mr Coville asks what we know about Shakespeare's wife, using that as a jumping-off place for…

    A third option is to try to glimpse him through the people he interacted with. Drawing on old biographies, novels and plays, Katherine West Scheil documents how for more than 200 years Anne Hathaway has been used as a keyhole through which to spy on the playwright as husband and lover. Her review of these varying interpretations demonstrate that Anne has been distorted to fit the Shakespeare each writer or era wanted to see.

    Alex Coville, How do we envisage Shakespeare’s wife?, The Spectator (18 Aug 2018, online ed.). Which rather assumes its conclusion: That there is complete unity between the individual William Shakespeare and the playwright known to us now as "William Shakespeare." I've long held that rather than looking for "the" Shakespeare — particularly since there are no writings at all, but only after-the-fact transcripts of what the oft-illiterate actors said their lines were, sometimes months or years after playing the parts — we should be looking for a Renaissance-era Edward Stratemeyer (or, perhaps, Franklin W. Dixon or Carolyn Keene … or, just because I like picking on him for deceptive sales practices, former marketing executive James Patterson). It's not like there aren't any precedents, even in the late sixteenth century; just take a look at the "authorship" of Amadis of Gaul, even as recounted in the famous library scene in Don Quixote! More to the point, take a look at what the "publishing industries" actually looked like under the 1566 Licensing Act.

  • Personally, I'm of the devil's party, too. Like that's a surprise. But at least it beats learning useless foreign languages; the foreign languages I've studied are useful (in contrast to most Americans who don't even try).

18 August 2018

Lying About "Security" Is Evil

… and that's totally inappropriate for a company with an alleged directive to its employees to "not be evil," Googleminions. Especially when the purported "security advice" is sent in a multi-level insecure form. In no particular order:

  • When you send me an e-mail imploring me to improve my security practices, do not send it as an HTML-formatted e-mail with both embedded graphics and a bunch of links, some of which do not match the display because there are session cookies embedded in the code. Including a direct link to log in to the account… which is exactly how phishing schemes work.
  • Do not generically classify a POP e-mail reader — that enables me to read e-mail as plain text (so that the code differences are startlingly visible, as in the free Thunderbird e-mail client) — as a "less-secure app." It may well be a "less-remunerative app because POP users don't see all of our ads or get all of our tracking cookies," but that is not the same thing as — or even closely related to — "less secure." (And the less said about the number of phishing schemes, malware-infested/pointing messages, and just plain spam that my client filters out that your own system doesn't, the better.)
  • As a bonus, using POP means one does not stay logged in to the central server constantly, so no penetration of the central server will necessarily enable access to anything of mine. Unjustifiably arrogant about your own security practices much? (Hint: I've hacked your system testing my own security.)
  • While we're on the subject of "inherently less secure," I've turned off every location-tracker on my phone, including half a dozen that aren't documented. I'm increasingly pissed off at your imprecations that I enable what you misleadingly and incorrectly call two-factor authentication for my Google accounts that would decrease security both by disclosing an unlisted number to you (the phone's Android activation is via a throw-away account accessed only fleetingly via a VPN) and requiring me to turn that location-tracking back on, because your purported two-factor authentication doesn't work if location-tracking is disabled.
  • When I wipe cookies off my system during an OS reinstall, or use a VPN on a public network when away from home (spoofing the IP address to look like one of your business partners!), don't block access to my more-secure-than-your-system-presumes POP reader (see the second and third bullet points above) on the ground that my device is "unrecognized" (even though retrieving the MAC address is trivial, and don't pretend otherwise)… especially when I've routed the VPN connection through, say, Dallas to hide my actual location as an additional security measure. Needless to say, I'm at least 1000km from Dallas at all relevant times.

Googleminions, your credibility on "security" is just about as good as the TSA's. Stop pretending that the "security advice" you're offering is anything other than "improved data collection validation." And the less said about any other aspect of your "security" systems — such as not enabling comments on websites through Google account verification if location data is turned off, and your continued unwillingness to mention the terms "EEFI" and "traffic analysis" (PDF) anywhere because their provenance as intelligence-gathering and covert-surveillance tools just might tip people off to what's really going on — the better. I'm less worried about the "surveillance state" than the "surveillance industry"… and, sadly, Google is actually a relatively good citizen in that industry. Or at least somewhat less evil than the default.

The irony of posting this screed through a Google-controlled system is purely intentional.

17 August 2018

#takemyclearanceplease

It's not current. I have no need for a security clearance at this time, let alone the one I used to hold.

I will nonetheless — for the rest of my life — support and defend the Constitution of the United States against all enemies, foreign and domestic. I therefore stand with John Brennan and a collection of other distinguished past servants of the Constitution (however much I disagree with some of them in detail) and present servants like Mr Ohr. I will not be cowed by your inability to accept criticism, Mr Drumpf, and implore that you consider in the bowels of Christ — or, given your more-probable object of worship, of Mammon — that you might be wrong. Fortunately, I'm no longer subject to Article 88, so I won't have to improve my attitude to mere contempt.

And remember that Henrik Ibsen's An Enemy of the People also spoke out against the powerful and their economic interests. Ironically enough, concerning pollution and environmental degradation. Dr Stockmann (not David Stockman) is the hero, however flawed he may be, however selfish he may be, for his allegiance to uncomfortable truths. (Admittedly, the Arthur Miller adaptation is a bit too pointedly influenced by McCarthyism to be fully "faithful" to Ibsen's original.)

16 August 2018

A Biblical Imperative

n.b. This is not my preferred — or an adequately scholarly — translation, but it's close enough for government work and available free online.

[…] The child will not share the guilt of the parent, nor will the parent share the guilt of the child. The righteousness of the righteous will be credited to them, and the wickedness of the wicked will be charged against them.

Ezekiel 18:20.

So much for the sins: They shall not be held against descendants. Accord Deuteronomy 24:16. (At least not here; many other verses in That Inimical Book hold otherwise, see, e.g., Exodus 20:5 and 34:7, Deuteronomy 5:9, Isaiah 14:21; cf., e.g., Matthew 18:21.) That is not our concern today, and certainly not regarding government or business or the arts or damned near anything else. Instead, we should flip the coin (that coin which embodies all that is Caesar's) and ask: When may we presume the merits of the fathers (or mothers, Loretta) in their sons or daughters (or daughters), let alone their sons-in-law?

I would ordinarily answer "never." But that would merely demonstrate that I am not fit to be a Daley, or Pendergast, or Kennedy… or a Rockefeller, or Paul, or Trump. That I am not fit to be an Amis, or Wainwright, or Sinatra, or Winslow. That I cannot be comfortable with the inherited wealth of a Pritzker or Walton or Redstone. To which I reply: That is, indeed, my bloody point — no one is, or at least should be.

Application of the above to the current government — and commerce and property ownership — in this nation at every level is left as an exercise in frustration for the voter in less than three months.


One of the dubious benefits of a classical education — aside, that is, from knowing when one might well have no more worlds to conquer — is having actually bloody read That Inimical Book from cover to cover, in multiple translations and including consideration of alternate/discredited textual components, as part of understanding both literary works and cultural imperatives. More than once, as a serious student of literature; it's nigh unto impossible to understand major figures in Western literature from Chaucer through Shakespeare to Faulkner and beyond (and that's just those writing in some form of English!) without doing so. But then, so many commentators and pundits and barfly-philosophers demonstrate that they haven't done so on a daily basis, even for much shorter foundational documents, that I shouldn't be surprised that being a nerd about things like this is so rare.

And here things get dubiously interesting: That last foundational document says nothing about nepotism but prohibits attainder — a contrast that I find quite disturbing and revealing in a document purportedly founded on rejecting any right of rulership through descent. (And the less said about the Adams Family the better.)

01 August 2018

I Don't Think It Means What You Think It Does

Two seemingly unrelated items from widely — or maybe not so widely — separated areas of public discourse reveal something rather discouraging about "honesty" in public discourse.

The one that most people probably know about is Faceplant's takedown of a few pages for "coordinated[] inauthentic behavior" — that is, that they're fronts for unlawful, unethical, and/or excessively sleazy behavior (beyond even the standards of Faceplant). Leaving aside for the moment that this never would have happened if Faceplant weren't already under scrutiny from multiple directions for election-related deception, it's fascinating that Faceplant's own business model falls equally well inside the phrase "coordinated[] inauthentic behavior." I've seldom encountered self-aggrandizing marketing-speak that scores an own goal quite so readily outside of breakfast in Paradise Lost — not even during the Cold War; unfortunately, Faceplant keeps the scoreboard secret.

Somewhat more obscure — actually, a helluva lot more obscure, but bear with me for a moment — there's an item at PW that is at least as disingenuous regarding what's really going on. A children's book editor and author with an ironically appropriate name shares "truths" that editors want authors to know and vice versa but without getting anywhere near the critical truths most central to author-editor miscommunication. Absent from Ms Sales's list are:

  • Author, you should understand that almost nothing that I say as an editor that isn't a text correction — and even many of those — is actually my decision. I'm not just talking about lawyers getting concerned about libel or copyright infringement, either! In particular, when we're negotiating the contract I have virtually no control whatsoever, and not much more than that when dealing with things that the publishing industry says fall outside of editorial… including the title under which your work will actually be published. If I say "we," I usually mean "don't shoot the messenger, it wasn't me."
  • Editor, you should understand that I don't know enough about the other things you're doing — individually, as a department or imprint, as a company as a whole, as a subindustry — to intelligently participate in problem-solving that's not directly related to the text of the manuscript as I submitted it. (And that's assuming that I'm neither a savant whose skills are limited to the writing itself nor an artiste who just can't be bothered.) Some of this is your own damned fault, since publishing operates inside a culture of secrecy and even senior editors are often firewalled away from significant things that matter to authors, like bad-faith self-dealing to depress royalties and how reserves against returns are actually set. But you don't communicate enough with me, or with enough relevant information to actually participate in a conversation until after the train wreck is inevitable. And I don't like being blamed for the train wreck; it's going to come back to bite you next time in an unpredictable way that will hurt both of us.

Those are just two exceptionally obvious examples. Ms Sales's list includes some helpful information, but it's deceptive by omission.

My real point here is simple: Trying to change the nature of a problem to please other masters — investors as to Faceplant, the rest of the company as to editors — just leads to more problems.

29 July 2018

Fire Up the Grill

… for a summer internet link sausage barbecue platter (with the obligatory flare-ups and singed weenies).

  • Speaking of singed weenies: Can anyone really be surprised that yet more power players in show business are having their personal — very personal — shortcomings aired in public? I thought not. I've always thought that overemphasizing the size of one's box office was sort of compensating for something else… and it turns out it's not just intellectual challenges, but ethics and basic humanity. Given the yuuuuuugely great example being set in DC, though, it's difficult to get too aroused.
  • But it could be worse. It will be worse, as more and more politicians — especially the most potentially tyrannical — succumb to their historical fates.
  • From the Department of Schadenfreude Pie comes "news" that Facepalm's stock price is undergoing a deserved correction. Naturally (given the source of that second item), there's a "we'll be back" spin to it. How'd that work out for MySpace and AOL, anyway?
  • And then there's the open question of "just what the hell is an emolument, anyway?" It's not that easy a question; it's obviously more than "direct payment" (even the Founding Fathers knew how to say "bribe," and did in their letters, so the earlier New York decision seems off). It's at least open enough to question that the facts will matter and the Maryland suit will proceed (PDF), if slightly more narrowly.

    Frankly, this lawsuit is the iceberg heading for the overconfident captain of the Titanic: Revelations here are much more likely to cause mutiny among the crew (and passengers) than electoral shenanigans or people-who-don't-look-like-us repression (even involving kids seeking asylum) or that singed weenie noted above. And just like in 1912, California won't be around to save anyone this time, either. How appropriate during Shark Week.

16 July 2018

None Dare Call It Treason

… because it isn't (quite).

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

U.S. Const. Art. III § 3. Russia may be a hostile foreign power, but it is not — either under international law or by declaration of either Congress or the proper part of the Executive — an "Enem[y]."

That said:

The very best evidence that Putin would have wanted Drumpf to win in 2016 is that — after, at minimum, indictments implicating Putin's government (and, reading between the lines, personal involvement at some significant level) prepared/supported by people Drumpf on the same day declared he had "great confidence" in — Drumpf can't think of a reason that Putin would have wanted him to win in 2016. The parallel to the repeated victim of fraud not being able to understand why con artists would target him is rather apparent… and disturbing… especially given the glee with which con artists pass around lists of marks based upon their past successes.