Finally getting back to deceptive branding in publishing, consider the following situation:

Author X has written a number of bestselling books; the publishing category is immaterial. Author X has a lot more fun being wined and dined at writer's conferences than actually writing books, so he or she starts to let her deadlines get closer. In a panic, as the delivery date approaches and not one word has yet been written, Author X subcontracts with a ghostwriter to write the next book, with the publisher's knowledge and approval. The book is published listing only Author X as the author. As mediocre as previous books by Author X were, this one is truly wretched. Nonetheless, Author X's legion of fans line up three deep outside bookstores to buy the latest $30 blockbuster bestseller "by Author X."

I only wish this was a hypothetical; it has happened at least five times in the last three years, and those are just the instances for which I have documentation that gives me reasonable confidence.

   Author X's fans purchased the books on the strength of attribution to Author X. The books, however, were not written by Author X, and perhaps not even supervised by Author X. Remember Virgina Andrews? I bet she has a great deal of difficulty supervising from beyond the grave… even if "her" books are supernatural horror.

   This past term, the Supreme Court dismissed the writ of certiorari it had granted in the Nike case as "improvidently granted" ("Oops, we shouldn't have agreed to hear this case—our bad!"). However, in Illinois ex rel. Madigan v. Telemarketing Associates (PDF, 345kb), the Court did hold that even solicitors for charity do not have a First Amendment right to lie while seeking contributions that outweighs state deceptive practices statutes that are intended to neutrally protect consumers from deception. This kind of reasoning applies to book covers, too; the Keimer case of a few years back indicates that the cover is advertising material, and that known factual inaccuracies on the cover that have both a tendency to deceive as to the value of the contents and a tendency to encourage purchase can be treated as deceptive trade practices. (The New York courts disagreed with the California courts concerning the same book, but on grounds squarely refuted by Telemarketing Associates.)

   We are thus left with this: Is an attribution of authorship more like an AOC or more like a Big Mac? At least as to Author X's fans, the attribution is more like an AOC. For that reason, misstatements of authorship for previously published authors of the same general marketing category should at least be scrutinized as unfair or deceptive trade practices. Whether this extends to different kinds of books is a much harder question; consider, for example, Alan Dershowitz's recent forays into fiction, as compared to his scholarly and popular books on legal issues. The question is difficult enough, however, that it indicates that this all-too-common practice in the publishing industry is wrong.

   There remains one more, perhaps even more insidious, variation on this practice. It has less to do with Stephen King/Richard Bachman than with Megan Lindholm/Robin Hobb. Yet another pitiful attempt at a cliffhanger…

Professor Stephen Bainbridge (now at UCLA, but my professor for securities law when at his former institution) speculates on possible/perceived bias against conservative professors in his blawg. N.B. I have no doubt that Professor Bainbridge was, and is, a "conservative." I also have no doubt that, unlike some and perhaps many others of many political persuasions, he never allowed that to interfere with his teaching or grading.

   Part of the problem that Professor Bainbridge identifies—one that is far from unique to academia, and that the recent Franken/O'Reilly contretemps reveals all too clearly—comes from a combination of diversity and definitions. "Liberal" is a much more diverse group in this country than "conservative." One illustration in a followup comment to Professor Bainbridge's article demonstrates this more clearly than I might otherwise wish: the identification of certain radical theories (such as Critical Race Theory) as "liberal," even when those theories do not fit with many or most of the other tenets of "liberalism." Those who would treat CRT as "liberal" generally know little or nothing about it, except perhaps what they have gleaned from archconservative attacks upon it by the Ann Coulters of the academic world. And they do exist, regardless of ideology; unfortunately, intellectual honesty appears to have lost weight in the hiring process since the 1960s, both inside and outside academia.

   In any event, this is not to say that all conservatives are alike, but only that the views of various flavors of conservatives are more compatible than those of various flavors of liberals. For example, both Marxists and Critical Race Theorists are generally classified as "liberals," but in fact their views are incompatible with both each other and with much of the core of "liberalism"—especially "liberalism" as defined by finger-pointing from the right at anything that some of the more extreme rightists disagree with. (That true Marxists are mostly "social conservatives" seems to have escaped most notice, in any event.) I am reminded of Swift's "The Battle of the Books" by the sniping between the "academic left" and the "academic right" much more than makes me comfortable.

   One might also wonder, however, whether the "anticonservative bias" in academia has a counterpart in the "antiliberal bias" in "private industry." For all of the reputation of, say, the ABA as a "liberal" institution, the views of the membership and leadership—as reflected in its actions, such as refusal to make pro bono publico a requirement for lawyers and refusal to take steps to apply ethics rules equally to small-firm plaintiffs' lawyers and large-firm insurance-defense counsel—are far from "liberal." Presuming, again, that there even is such a thing as a single, coherent definition of any broad political class, one could speculate that there is a conscious or unconscious effort in the academy to provide an alternative for "liberals" who don't fit well in the "conservative" business world. And so on.

   In the end, this is all navel-gazing, because there really is no single, coherent definition of "liberal," any more than there is a single, coherent definition of "conservative." The fight more often appears to be over the degree of literal textualism espoused than anything else. Right now, the most literal textualists are often identified with "conservatism." That has been different, and it will be different, at other times in the future. We need only remember "three-fifths of all others" to see some of the problems.

Embedding Integrity
One of the major problems in publishing—whether in the so-called "news" (most of which is no longer "new" by the time it makes it into the mainstream press) or in longer works—is that neither reporters/authors nor their editors know diddly-squat about source authentication. This is most apparent in, but far from unique to, the weapons of mass destruction issue in Iraq.

   Part of this comes from peculiarities of the intelligence culture. Handlers and controllers—the "I'm not a spy, I just supervise them" people who are actually available as potential sources—always have at least two or three hidden agendas. This is natural, necessary, and nonetheless disturbing. After the West's pitiful performance at human-source intelligence during the Cold War, there is a somewhat justifiable paranoia in the intelligence community about releasing information in a way that might compromise an intelligence resource. (Yes, that is the official doublespeak euphemism.) The problem is that the method that has been chosen is ill-considered and actually encourages efforts that have even greater risks. Officially, information simply will not be released in a form that could be verified (or challenged) by outsider investigation. Unofficially, favored journalists and authors get leaks. Since very, very few of these journalists and authors would be able to recognize legitimate raw intelligence in the first place, their efforts at verification, if any, can be directed or sabotaged by, umm, internal editorial efforts (another official doublespeak euphemism).

   The kneejerk reaction is "well, let's hire some former intelligence community people as reporters and consultants." That is all well and good, but there is a serious catch-22: Those individuals who have sufficient knowledge of raw intelligence to interpret it for journalists/authors are either restricted from discussing the subject matter or not credible due to personal agendas (or worse)—or both. Those individuals who are available for comment do not have the expertise working with raw intelligence to guide journalists/authors in verification efforts that will not simultaneously jeopardize those at risk.

   Of course, there is an alternative. It is a difficult and expensive alternative, and one that could seriously jeopardize political ambitions of individuals both inside and connected to the intelligence community, which is why it has never been tried and never will be. In the long term, the key is to teach journalists and authors the methods used in gathering and evaluating raw intelligence from the perspective of the controllers and analysts. This creates two risks, one of which is potentially real and the other of which is the real "justification" for not doing so. The first is the risk that teaching methods to individuals who are not under control could lead to compromise of those methods, either accidentally or worse. Given that the whole point of gathering human intelligence is that perfect security is impossible, this cannot be discounted as a problem. The community is worried enough about cooptation of people in its own control, and is absolutely paranoid about those whom it cannot control. Just because they are paranoid, though, does not mean that there is nobody out to get them. The second is the risk that teaching the methods to outsiders will enable outsiders to authoritatively challenge official interpretations. This is a "one mistake" area: a journalist or author who makes the mistake even once of publicizing such a challenge will be frozen out by bureaucrats and politicians whose personal and political interests are tied to the official interpretation. Thus, authors and journalists do not have an interest in spending upward of two years learning how to interpret raw intelligence only to be frozen out in thirty seconds, and those with the knowledge to teach them the methods have no interest in doing so.

   All of this comes from the theory of EEFIs—essential items of friendly information. An EEFI is an unclassified (or otherwise not legally restricted) piece of information that, by itself, does not reveal any classified (or otherwise legally restricted) information but, in combination with other information, could do so. One example of an EEFI would be a phone book for NSA headquarters. Even if job titles were removed, it would then become possible to start building up a picture of who supervises whom at NSA headquarters. By itself, this is not necessarily bad. However, it does help target both weaknesses and high-value objectives. If one is interested only in whether the NSA has intercept information related to, say, Southwest Asia, it is very helpful to be able to exclude those who work on Latin American intercepts—and to know, if someone comes in offering intelligence, whether that individual would have access to what he or she is offering to sell.

   That the First Amendment and contemporary theories of intelligence gathering and analysis are in serious tension cannot be denied. The question, though, is exactly what constitutes a "suicide pact." While the Constitution may not be a "suicide pact," it is intellectually and morally dishonest to construe every potential compromise or criticism of official policy as an inevitable step onto that slippery slope. One must also remember that, as the military officer's oath implies, not all enemies of the Constitution are foreign. Refusal to deal with seemingly minor infections can lead to gangrene, in the body human or the body politic.

Owww. My eyeballs hurt, and my good taste has been perhaps mortally wounded, by viewing the results of the Worst Romance Covers Contest. Owwwwwww. Sadly, some of the winners (there are links at the bottom of the target page) are not much, if any, better.

As I noted on Saturday,

In my personal opinion as a veteran and former commanding officer, the military needs to clean up its act concerning nonconsensual heterosexual conduct that inherently impairs military order and discipline before expending any energy or resources on consensual homosexual conduct that does not otherwise impair military order and discipline. It could start by closing all of the military academies, which incubate improper attitudes and conduct in a self-perpetuating fashion.

The commission investigating the most-recent reports of rapes at the Air Force Academy (and, based on conversations with fellow officers while I was on active duty, Colorado Springs is not the worst offender among the three) issued its final report (PDF, 6.01mb) yesterday. Several newspapers have summarized the report, including The New York Times, the Washington Post, and the Denver Post. The articles and report indicate a serious failure of officership and officer training impacting my generation of officers—those of us who began training after Vietnam and before Beirut/Grenada.

I remain unconvinced of the continuing need for the military academies. The education offered there is now perhaps roughly equivalent to that at the average main state university campus, such as the University of Colorado, the University of Maryland, and the State University of New York at Binghampton. Perhaps only, because it does a very poor job of preparing graduates for rigorous graduate schools in the core disciplines; a majority of the instructors do not have a terminal degree, which is highly unusual for any four-year college program these days, and the curriculum is extremely rigid. In any event, unlike the early 19th century, there is no longer a shortage of college-educated 22-year-old men and women that justifies the academies strictly on educational grounds.

Instead, the justification must be on officership grounds. When I was on active duty, I didn't see it, and based on the buck-passing and obtuseness among the academy graduates in the senior leadership today (my contemporaries and slight seniors) see it even less. The real problem for ROTC and OTS graduates—leaving aside the snobbery, all too similar to that based on one's law school, with even less justification—has been adaptation to active duty while also trying to learn the substance of one's job. As an alternative to the academy system, commission officers only through ROTC and OTS. Then send the new O-1s (2d Lieutenants and Ensigns) to three months of additional readiness training at the now-available academy campuses. Include the training and education, ordinarily delayed until one has been on duty for about five years, provided through company-grade professional military education (a seven-to-nine-week course), such as Squadron Officer School. That would both give the new officers a chance to assimilate the skills and knowledge they supposedly get later on and allow the later schools to spend more time on academics and research (in which they are now seriously deficient).

<SARCASM> And, if political indoctrination is still considered necessary, that puts all of the new officers in one place for easy, umm, access by senior leadership. </SARCASM> Uh-oh—I may just have shot my program for liberalizing the officer corps in the foot…

What's the connection to publishing? How many books are published every year with important characters who are military officers? And how many of those characters bear more than passing resemblance to either the reality of or aspirations for the officer corps? (From what I've seen, less than ten percent.) If nothing else, the commission's report should indicate a serious lack of openness about officer preparation and education. That cannot be good for either literature or society as a whole, particularly when one considers that the closest that most civilians ever get to depiction of an officer is fictional portraits. On screen, these range from Lt Wolfe (Platoon) and Lt(jg) Roberts (Mister Roberts); to Maj Major and Capt Danby (Catch-22); to Lt Col Kilgore (Apocalypse Now); to Col Casey (Seven Days in May), Capt Queeg (The Caine Mutiny), and Col Trautman (Rambo); to BG Ripper and Gen Turgidson (Dr. Strangelove), LGs Bradley and Patton (Patton), and Gen Scott (Seven Days in May again). Things are not much better in print. In military-oriented fiction—whether set in the present day or not—it is difficult to find anything other than jingoism (Starship Troopers), irrelevance (The General's Daughter), or a morass of incompetence/venality, perhaps surrounding one hypercompetent officer (On Basilisk Station). Whether on screen or in print, these are not realistic, not believable, and most often not even well-suited to fiction. War is too important to be left to the marketing department.

I came across an interesting quote today that catches much of the attitude (and perhaps aspirations), if not the reality, of publishing.

   "You mean, you think this is a mob thing?"
   "Ain't it?"
   "Not exactly. It's a, ah, publishing thing."
   "Same difference. Meet me back here in a coupla hours. No, let's say midnight. Back here at midnight."
   "Come on, Danny, can't you simply give me a call?"
   Danny just looked at him. "Beter to do it in person. These guys, they don't like their names bandied about over a cell phone. Back here."

Martha Grimes, Foul Matter (2003). That the author is known principally for category fiction—a long series of mysteries—just adds a little spice.

Back to the salt mines. The converse of the "forced name change" problem can be equally disturbing. Consider, for example, the case of Virginia Andrews.

   Under the brand "V.C. Andrews"®, in the "horror" section of the bookstore, one can find a truly abominable series of pseudo-Gothic "family members in danger" horror novels, such as Flowers in the Attic. The problem is that the publisher has chosen to present the books and their covers as if Virginia Andrews is the actual author. (It would help if she was still alive.) Instead, with no cover credit (and often no title-page credit), the books are sharecropped—written as works-for-hire by other authors, most probably for a one-time fee instead of on the traditional advance-and-royalty basis. Even media fiction is not this egregious; if one looks at, say, a Star Wars® or Star Trek® book, the author's name is just as prominent on the front cover and title page as it would be on a non-media-fiction work. (That these are works for hire will come into consideration a little bit later on.) All of this leads to the following non-rhetorical question:

Does stating a brand name that the purveyor knows is false constitute a deceptive trade practice?

Well, not always, but in this instance, probably so. Under the law as it stands, a purveyor of goods or services is free to call his or her product anything he or she wants, so long as the name itself is not deceptive. That's how we end up with seventeen brands of laundry detergent from Proctor & Gamble, most of which one would be hard-pressed to identify with P&G. However, books are not laundry detergent; the reading public has come to expect that a designation of author is more like the designation of origin on a bottle of wine than the name on a detergent box. That is, just like a bottle of sparkling wine that says "AOC Champagne" on it, I am entitled to expect that the wine actually originated in the Champagne region of France, and is not just the synthetic attempt to create a likeness to that "style" of wine originating in a basement in Champaign, Illinois. In other words, under the law as it stands, the actual origin of wine matters to the consumer, and thus may not be labelled deceptively. This also includes fanciful statements of origin, such as "AOC Ernie's Vineyard" if Ernie's Vineyard is not an AOC.

   In turn, this leads to the following postulate:

{author | detergent brand} ≤ {author | AOC}

That is, the relationship between "author" and "detergent brand" is less similar than that between "author" and "AOC." And usually not as much fun, unless one really enjoys Mad Dog and similar abominations. I, however, have some taste—and it is not a taste for Tide® laundry detergent. In theory, any wine that follows the AOC rules is of decent quality; preference is a matter of taste. Some non-AOC wine is, at least to my taste, of higher quality than some AOC wine. I am not, however, deceived in my expectations; I know what I am getting in each case. The cavalier treatment of authorship and authorship credits by the publishing industry (let alone in Hollywood), however, is designed to deceive the reader (or viewer) into purchasing a product that does not meet the reader's specifications by making the reader think that it does. As a mild example, were I a Tom Clancy fan (I am definitely not), I would probably be distressed to find out that Mr. Clancy has so little input into the "Netforce" books that he probably would not qualify for credit under WGA rules for a screenplay—yet I had purchased a "Netforce" book in the expectation that I would be getting something substantially written by Mr. Clancy.

IP Good, Patronage Bad
(With no apologies whatsoever to Camp Chaos's profanity-laden "Napster Bad" SWF, 592k.) Taking a break for a moment from deceptive brand names in publishing…

   An article in today's New York Times indirectly points out the dangers of patronage.

[E]very accredited American law school has adopted policies that bar discrimination on the basis of sexual orientation, and that the schools have sought to apply these policies without making any exception for what the suit describes as "the military and its discriminatory policy regarding sexual orientation." …. In 1995, Congress passed the Solomon amendment, named for its sponsor, Representative Gerald B. H. Solomon of New York, barring disbursement of money from the Departments of Defense, Transportation, Health and Human Services, Education and some other federal agencies to any college or university that obstructed campus recruiting by the military.

Sam Dillon, "Law Schools Seek to Regain Ability to Bar Military Recruiters," New York Times (20 Sep. 2003). The Solomon Amendment is a descendant of the notorious abortion decision of Rust v. Sullivan, 500 U.S. 173 (1991). Rust allowed the federal government to prohibit clinics that receive federal funds under the Public Health Service Act for family planning to counsel patients on abortions. In other words, the federal government need not pay for exercise of a constitutional right with which the administration disagrees. The sneaky bit was the extension from "pay for" directly to "projects supported in part by." Leaving aside the value or correctness of Rust—there are many, many problems with the opinion, beginning with according Chevron deference to an administrative decision that necessarily construed not just a statute, but a constitutional right that was not within the agency's expertise—it is the law of the land.

   Seeing patronage systems in this mess over law schools' attempt to avoid discriminating on the basis of sexual orientation, whether directly or by implied support, should not be much of an extension. Whether one agrees with the military's disdain for homosexual conduct or not, this is an inherently political question. In my personal opinion as a veteran and former commanding officer, the military needs to clean up its act concerning nonconsensual heterosexual conduct that inherently impairs military order and discipline before expending any energy or resources on consensual homosexual conduct that does not otherwise impair military order and discipline. It could start by closing all of the military academies, which incubate improper attitudes and conduct in a self-perpetuating fashion. Although I do not get to establish military policy, I object to the silencing of expressive conduct in opposition to that policy by the federal government.

   And if I were an otherwise-starving artist and my patron was the federal government, just what kind of effect do you think that might have on my art? Or even if my patron was a private party? This is the point of the "vacuum" argument I have been making for some time: if not intellectual property, with what will we replace the IP regime that still ensures the survival of creators and particularly artists? That the system is open to abuse is not in question; that it is better than the alternatives of which I am aware is not, either.

Ernie the attorney sagaciously notes:

The practice of law is more art than science, and there is no algorithm that can be sweepingly applied to the difficult decisions faced by lawyers and judges. We are, after all, just people, and we feel as much as we think. Proper judgment incorporates both feeling and thinking, while poor judgment usually just uses rote assessments that can be applied to situations like butter to bread.

"Does it matter which law school you went to?" (19 September 2003) (emphasis in original). "Rote assessments" sounds an awful lot like traditional property law, the kind common before Shelley v. Kraemer.

These examples aren't so bad for a nonfictional memoir. The very subject of a memoir is "Brand X." Variations 4 and 5 are still deceptive, but probably not actionable. However, the farther one gets from autobiography, the greater the distinction there is (or, perhaps, just should be) between the text and the author.

   This leads to the truly disturbing "dirty little secret" of the publishing industry: the so-called "house name." Perhaps the most famous of these is "Franklin W. Dixon" (The Hardy Boys), which was actually half a dozen or so writers; "Carolyn Keane" (Nancy Drew) isn't quite as diverse, but had no more existence. This becomes deceptive when one realizes that publishers' treatment of the author as a "brand name" is not the only meaning of "author." To say that this lends itself to abuse and misuse is a serious understatement. Once upon a time, this involved prejudices in publishing against gender (George Eliot), religion, ethnicity, and so on. Ironically, the biggest culprit now is probably category-romance fiction, as a substantial proportion—perhaps even majority—of the men who write those works do so under a feminine or indeterminate pseudonym.

   The real fun starts when, purely for business reasons (that is, previous sales were disappointing to someone), an author is coerced into writing under a pseudonym. In that particular instance, the "brand name" chosen is deceptive, especially when it is not somehow disclosed to the potential purchaser. I know to check the copyright attribution; if you're serious about publishing, perhaps you knew to do so before making your way here; but the majority of the bookbuying public does not, let alone the occasional casual browser.

   The key is a question of intent. If the purpose of changing the author's name is to deceive potential buyers as to the identity of an author who has already published comparable works, it seems to me that one must question whether that constitutes a deceptive trade practice. Or, more strongly, not just question…

Continuing from last time, variation 3 is a correct set of attributions. So is variation 1 (the actual book), if X and A had the contract assumed in the hypothetical that made A's commissioned work a work for hire. Variation 2 is a very rare situation: the "professional celebrity" and the "professional author" (who is not a well-known author) agreed to split credit evenly, and convinced the publisher to do so.

   Variations 4 and 5—which are by far the most common situations—are much more troublesome. Variation 4 discloses that "Brand X" is not really 100% "Brand X" only in the copyright attribution; Variation 5 does not disclose it at all. Variation 4 is at least misleading under the FTC Act standard, and Variation 5 is an outright lie. Why? Because both of them fail to disclose in the marketing materials (the cover) or the inside packaging (the title page) that the work advertised as "Brand X" is not.

Over the next week or so, I will be blawging about yet another dirty little secret in the publishing industry—an outright deceptive practice. I will be working from the following examples, which are hypothetical descriptions of the same book. N.B. These are variations on a real book; the publisher, in my judgment, did it correctly. This time. It is a useful starting point, because that publisher does not always do it correctly.
 

No.	Cover Credit	Title Page Credit	Copyright
1	X with A	X with A	X
2	X and A	X and A	X and A
3	X	X with A	X and A
4	X	X	X and A
5	X	X	X

The starting point will be a nonfictional memoir of a public figure ("X") for which a substantial proportion of the writing was done by a professional ghostwriter ("A"). For the present, assume that there is a proper contract that makes A's contribution a work for hire by X.

Liberal media? What liberal media? Apparently, the BBC is too liberal for darling Rupert and his cronies.

   Just in case you hadn't figured it out yet, I despise Rupert Murdoch. I was living in England when he bough The Times, and watched that newspaper descend in about a year to the point that I had an impulse to turn immediately to Page Three—and would not have been excessively surprised to find what one finds on Page Three in The Sun. That has nothing to do with politics, either; the increased sloppiness in fact-checking, in writing, and even to some extent in production coincided almost exactly with NewsCorp's regime. It got to the point that some of the more conservative faculty in Politics stopped reading The Times. As you can well imagine, it wasn't due to a sudden liberal bias in the paper!

   All of which just continues to show how important dissent really is in a state that aspires to anything resembling democracy.

Sigh. An article in yesterday's Boston Globe further demonstrates just how blindered the so-called "publishing press" remains about publishing, particularly publishing categories. In telling a bit about one YA author, the Globe proclaims:

[Beverly] Horowitz[, vice president and publisher for Delacorte Press/Random House's young reader's division,] says the young-adult fiction market is not only growing but widening: "The readership is getting younger and older. We have readers as young as 11 and some as old as 17."…. While there seem to be no industry-wide figures that break out that category from the $1.8 billion juvenile publishing segment (according to the Association of American Publishers), there's no question that publishers are investing in it. The success of J. R. R. Tolkien's "Lord of the Rings" trilogy and J. K. Rowling's "Harry Potter" series has stoked young readers' and publishers' appetites for fiction, especially dreamlike tales about other worlds.

David Mehegan, "Young Adults Are Reading One of Their Own," Boston Globe (16 Sep 03).

   Kids don't give a rat's ass about the category, or category listings—or, at least, kids who select their own reading material don't. Unfortunately, the various "age" categories have, over the last decade, become highly correlated with the silly "age" categories established by the MPAA for movies. "YA" and "teen" appear to be code for "PG–13", but without the intellectual honesty to admit that that is what is going on. The Puritanical prejudices behind the MPAA rating system appear, based on what I am seeing in the chain stores, to be at least as strong in written "kidlit." Sex is right out, but healthy gore is fine. Glorification of drugs is right out, but so is questioning of plutocracy or American hegemony (even in those works that come even close to those subjects that somehow sneak into kidlit). Authority figures, however, are very black and white: they are either entirely good, and therefore to be completely trusted, or entirely evil, and therefore to be opposed by all means (usually involving any child-protagonists having to educate their parents or other adults about just how evil the authority figure really is). And overt questioning of Judeo-Christian values, doctrine, or religious hierarchy… are you out of your mind?

   The story in question concentrates on the semi-celebrity of one particular author without ever asking if there is anything else going on here. That is the problem; it's that whole "cult of the author" again. Of course, since author identity is treated more and more as a brand name, that should not really surprise anyone.

   There is a point here. It's a point related, believe it or not, to Nike. And telemarketers. And the tension among marketing strategies, the First Amendment, and fraud.

Yet More Law & Economics Even Still

Things are really getting out of hand with the L&E analyses of intellectual property. Professor Volokh and Professor Solum have continued their disagreement on end-user reproducibility/rivalrousness. This is turning out to be an argument over how many lawyers can dance on the text of an authority (such as the Intellectual Property Clause); nobody is addressing the "vacuum problem":

If not intellectual property, what?

This kind of dispute all too often devolves to a cousin of the straw-man fallacy. Those who do not wish to treat "intellectual property" as property seldom offer an alternative rationale for understanding and dealing with "intellectual property." Discounting the status quo's rationale does not discount the need for a rationale. The real world is not a null hypothesis that can be negated as a theoretical matter without any influence on the world itself. Consider for a moment the commonly offered alternatives offered to a property-based system of intellectual property. They all have significant, and perhaps overwhelming, disadvantages that are less prominent in the property-based system.

• Idea creation limited to an avocation by noneconomic means has an obvious problem: it does not maximize the output of ideas because it requires the "best" idea-producers to engage in other activities to meet basic (and even non-basic) needs. It has the further difficulty of skewing idea production toward any leisure class, which reduces total utility by reducing diversity (in either the economic or natural-selection sense). Historically, the closest analog to which I can point is eighteenth-century France. While I do not claim that this by itself caused the French Revolution, the relative absence of competition for aristocrat-driven ideas was a factor.
• Absolute free exchange of ideas is not a realistic alternative. This is, in effect, a price-control theory. It assumes that sufficient ideas will be created and disseminated to maximize social utility when the price is set to zero. Starving artists starve; I assume the same happens to starving inventors who are not busy inventing means of feeding themselves at no cost. Some intellectual property will continue to be created, but maximizing social utility is not a realistic possibility unless one believes that all worthwhile intellectual property has already been created.
• Free exchange of ideas supported by patronage has its own problems. This has two variations: patronage of the work and patronage of the individual. The former is merely a different payor in a property-based intellectual property system; the property at issue is the income stream that is tied to a given work, because it still requires proper credit for the production of a given work. Patronage of the individual has serious problems with suppressing dissent, whether that is dissent from a theocratic patron, a bureaucratic or government patron, or a plutocratic patron. Eighteenth-century France could, I suppose, instead be treated under this theory; the result is the same.
• Free exchange of ideas with no economic support presupposes that nobody needs to do much of anything to avoid starving. To say the least, the real world does not support this assumption! For a badly written example extolling such a utopian ideal, look at Edward Bellamy's Looking Backward, and think carefully through the gaping logical flaws, most of which stem from the assumption that all right-thinking people would agree with Bellamy's value system, and that completely discounting non-right-thinkers is both possible and acceptable.

Under both my personal value system and the value system implicit in the Intellectual Property Clause, the relative disadvantages of each of these alternatives to treating intellectual property as property greatly outweigh the relative advantages. In any event, nature and politics abhor a vacuum; something will rush in to fill the void created by removal of intellectual property from the realm of "property," and it is other than wise to pretend otherwise.

I challenge critics of the basic concept of intellectual property as property to present a rational alternative that is not clearly inferior. I am listening, and willing to be convinced; there is something disquieting about setting prices in this context.

Book reviewing is really no more honest than book publishing—especially since some of the same conglomerates that own major and mid-major publishers own many of the major sources of book reviews. The New York Times Book Review is an obvious one. But, at least according to Slate, things are not entirely bad…

One thing the trades maintain—and an informal survey of freelancers bears out—is that reviewers are not directed to take a position on the books they're writing about; instances in which a reviewer's judgments are overwritten by editors are rare. Which means this: For better or worse, a motley assortment of underpaid and often anonymous reviewers using their own unfettered judgment have a great deal of influence over the books you are most likely to come across in your neighborhood bookstore and, if you are shopping online, buy.

Adelle Waldman, "Book Report: How four magazines you've probably never read help determine what books you buy," Slate (15 Sep 03). The anonymity is a problem. So is the warrant for the assertion that "instances in which a reviewer's judgments are overwritten by editors is rare." There is instead the subtle pressure of future assignments; editorial expectations are usually at least implied to reviewers with each assignment.

   On the other hand, it's probably better than the obscene sycophancy of movie reviews. Nothing to aspire to, but not as bad.

Sometimes one simply must scratch one's head in wonder at the posing and idiocy in the publishing industry. Today's example (probably only the first) concerns the National Book Awards and complete misunderstanding of the nature of both literature and awards. An article in the New York Times notes that Stephen King (!) has been selected to receive an award [free registration required] for "distinguished contribution to American letters." The article notes that

Mr. King's selection is the first time that the organization, the National Book Foundation, has awarded its medal to an author best known for writing in popular genres like horror stories, science fiction or thrillers. Very little of Mr. King's work would qualify as literary fiction.

And thereby hangs a tale. Hopefully, a few editors and publishing-industry figures, too.

Postulate: Authors and their works are not coextensive. On one level, nobody should even blink an eye at this award. The award is for a "distinguished contribution to American letters." The last time I checked, writers need libraries, schools, promotion, and most particularly audiences. There is little question that Mr. King has fulfilled each of these criteria—certainly moreso than has, say, Philip Roth (a past winner). This is not a "book of the year" award; the NBA Awards, which are, remain distinct from the medal under discussion.

At a broader level, nobody with any brains really believes that authors and their works are identical. Consider, for example, Ezra Pound, particularly his earlier poetry. Ezra Pound was a traitor, a fascist, a bigot, and a miserable excuse for a human being. He was also a skilled poet. Reading his early poetry under contest conditions (that is, identified only as "Author 719" or some such) reveals very little of his intensely flawed nature. That is as it should be. Consider the opposite phenomenon—authors with extreme desires for privacy like Thomas Pynchon. If one were required to use (and limited to using) the same interpretive tools as are used to make Pound's poetry unfashionable and virtually outside the canon in reading Pynchon's works, allowing for the differences in genre (of which more anon), Pynchon's reputation would be vastly lesser and different than it is now—simply because he and his personality are not writ so large.

Postulate: The nature of her readership does not determine an author's contribution to letters. Mr. King is not one of my favorite authors. I find his work shallow, overlong, and unambitious, and his plots are often extremely predictable. I do not share the common (and currently fashionable) "appreciation" for his purported "storytelling skills," because his writing often removes me from participating in his story. His audience is largely of unsophisticated readers who read as much to pass time as anything else.

And none of that matters.

"American letters" had better not mean "only the stuff we'd be comfortable with college students reading," because there are a lot of college students from every discipline reading Stephen King. When I was in college, he was barely a blip on the literary radar screen, principally because most people were familiar with him only through Brian de Palma's screen version of Carrie. American letters, however, exists far outside the academy, or wine-and-cheese parties on the Upper East Side, where barbarism rules (frankly, one is less likely to find civilization east of the Hudson than west of it). In my day, we were reading Tolkein and Bradbury (Ray, not Malcolm) and Clarke between classes covering contemporary literature that included Updike and Coover and Cheever. Toni Morrison was not yet fashionable in the core of literature; her works might be found in Women's Studies (my university was one of the pioneers) or as a particular freshman composition instructor's supplemental text. However, I seriously doubt that as many literature students and future writers—not by any means the same thing—were as influenced by Updike and Coover and Cheever combined as were influenced by Ray Bradbury, let alone Clarke or Tolkein.

A few hundred years ago, William Shakespeare (I refuse to argue over the "real" author of his plays—see the preceding postulate) was a hack and Samuel Johnson was the leading figure in English letters. Shakespeare was considered common and vulgar; the educated elite preferred Johnson's sarcasm and wit. Today, Shakespeare is a central part of the English-language canon and Johnson might be encountered as part of an advanced survey of seventeenth-century literature, and probably would not consume more than a class session or two in total.

Postulate: Virtually everything considered to be "letters" is in the same genre. This arises from the publishing industry's historical misuse of the term "genre." There are only four genres: poetry, drama, rhetoric, and fiction. What the publishing industry likes to call "genre fiction" is instead just often irrelevant marketing categories, and not very accurate at that. By publishing industry standards, Le Guin is a despised "genre writer," while Atwood makes a valiant effort to avoid that label and is generally accepted as "mainstream." Leaving nationality aside, the substance of their works does not justify this distinction. Oryx and Crake and The Handmaid's Tale are farther inside the industry's perception of "genre literature" than are Malafrena or Orsinian Tales (or, to bring in the even-more-despised "young adult" category, Very Far Away From Anywhere Else). On the other hand, there is almost no principled distinction in subject matter between Oryx and Crake and Le Guin's corresponding The Dispossessed—except that the latter is a far superior work in both "storytelling" and "literary" quality.

What instead this reflects is a regrettable tendency on the part of the industry to both determine the quality of a book by whether it has a rocket ship (or dragon or detective) on the cover and contradict itself by treating books within a given category as fungible items. If there is one thing that can be said for literature, it is that books are not commodities to the reader. A given reader cannot replace Turow's Pleading Guilty with Grisham's awful The Firm, despite the fact that both books revolve around the protagonist's efforts to leave a corrupt law firm. However, if "Turow" and "Grisham" were closer together alphabetically, they might well be shelved side-by-side in a bookstore.

In the end, then, Stephen King's services to American letters justify awarding him a medal for a "distinguished contribution" more than do those of several of the previous recipients. That marketing considerations (not to mention outright snobbery from people who don't actually read that which they disdain) have been until now outcome-determinative is the real story, and the real problem. Remember, taste in subject matter is not really relevant; after all, some literary lionesses write whole books about boxing, which is about as lowbrow as one can get.

As someone who unabashedly reads speculative fiction for its literary merits, I often feel like one of the three-fifths of "all others" who outnumber the respectable full citizens of the literary world, with just as much justification for such a distinction.

Cause and Effect

An article in today's New York Times notes the disjuncture between the record labels and many musicians (and similarly between directors and screenwriters on the one hand and film producers on the other) on the whole file-sharing issue. Sadly, this is not just a matter of abusive contracts, or questionable accounting practices, or inept sales efforts, or any other behavioral aspect of the music business. It's not just a bad idea—it's the law. Even if all of these industry practices were changed today, retroactively, there would remain a serious problem to overcome: a definition in the Copyright Act.

The Copyright Act defines a "work made for hire" in part as

a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work… if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

17 U.S.C. § 101. Things would have been even worse under § 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, which would have defined "phonorecordings" as works made for hire regardless of the contractual terms.

In any event, there is an "impairment of contracts" problem with changing music industry practices. At the moment, the work made for hire clause allows a definitional clause to effect the transfer of the copyright from the actual creator to a commissioning party. That gives the commissioning party a property interest. If the work made for hire clause were to be retroactively corrected so that it did not automatically give the commissioning party such an interest, regardless of contractual language that was intended to make such a transfer, it would "impair" the contracts that depend upon those clauses. That is a no-no. See, e.g., Trustees of Dartmouth College v. Woodword, 17 U.S. 518 (1819). Prospective relief, however, will not solve the file-sharing problem, because it would not influence any existing recording (and quite possibly not some recordings that do not yet exist but have already been contracted). That would leave an immense proportion of material under the current system, which rewards not the creator—as intended by the Intellectual Property Clause—but investors.

The intellectually dishonest aspect of US "work made for hire" law is that it defines the "author" as the commissioning (investing) party. In other words, for legal purposes the author of Galaxy Quest is DreamWorks LLC, not David Howard and Robert Gordon (the scriptwriters) or Dean Parisot (the director) or any other natural person. Similarly, the legal author of Bridge Over Troubled Waters (the album) is Columbia, not Simon & Garfunkel (the performers) or Paul Simon (the songwriter). This is all very much like Humpty Dumpty's definition of "glory" as "a good knock-down battle." Whether Congress has the power to redefine common language used in the Constitution in a fashion that undermines the stated rationale is open to question; whether it was intellectually honest to do so is not.

But why define the author from the beginning? Can't there just be a transfer of copyright? Well, yes. But it is a transfer that could be time-limited (17 U.S.C. §§ 203, 304), and would be subject to the vagaries of state contract law. Then there's that whole awful droits morale ("moral rights") thing to which the Europeans, and particularly the French, pay so much attention. A WFH's actual creator, not being the legal author, cannot claim any droit morale when, say, the studio cuts a scene from a film at the last moment to avoid an NC–17 rating, over the protests of the director, screenwriter, actors, and every other creative person involved with the film. <SARCASM> But that never happens. </SARCASM>

There are several simple ways out of this morass. However, all of them would result in some harm to large corporate interests in exchange for enhancing creators' rights and the purposes of the Intellectual Property Clause. In this era of political action committees, outright purchase (or at least long-term lease) of elected officials, and campaign finance "reform" that does nothing of the sort, I doubt that any of these reforms could be adopted. I can dream, though.

Rivals for Affectation

Professor Solum has some further thoughts on the concept of "intellectual property", in response to some musing by Professor Volokh on the subject. You may recall an extended discussion that Professor Solum and I had on the subject in July; I think, in the end, that we implicitly agreed to disagree.

In any event, the "rivalrousness" debate continues, this time between Professor Volokh and Professor Solum. Professor Volokh notes that

But that makes sense only if you see property law as focused solely on securing the rights to use. If property law—in land and in goods—also legitimately protects the right to exclude, not just as a way of protecting the right to use but also as a way to give people enough incentive to invest time and effort, then intellectual property law does make sense even if such property is nonrivalrous.

(Emphasis in original.) This is much more elegantly stated than my version. Professor Solum's response is illuminating, although perhaps not in the way that he intended:

Intellectual property is not a club good…. [T]he "intellectual property," the information that constitutes the MP3 file, is not a pure private good, because consumption is nonrivalrous. (Consumption of the CD is rivalrous. Consumption of the internet connection is rivalrous. But these are not the intellectual property.)…. Moreover, the intellectual property is not a club good. Why not? Because there is no optimal size of the club. Unlike wells and movie theaters, there is no net social welfare gain that derives from limiting the number of consumers through pricing. If too many people crowd into a theater or too many people attempt to use a well, there is a net loss of social welfare. If everyone who wants to do so listens to a song, there is a net gain of social welfare.

(Bold emphasis in original; italics and ellipses added.)

This is an interesting position that fails to persuade, for three reasons. First, it relies upon another a priori definition of an economic property for its force. That definition may well have some value; however, it was conceived in the absence of significant concepts of intellectual property (as I understand it, the concept of a "club good" goes back at least to Mill, and is at least implicit in both the "tragedy of the commons" and in Malthus). Second, it continues to elevate rivalrousness to the single most critical element in determining whether something is (or is not) "property." But we've already agreed to disagree on these two issues.

Third, and perhaps most important, a critical factual predicate (the italicized phrase) appears to be incorrect. The Framers of the Constitution—whoever they may be; in this context, I suppose that I mean the delegates who voted to approve the initial text that was adopted, collectively—said otherwise. The Intellectual Property Clause (Article I, § 8, cl. 8), gives Congress the power

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

While this does not explicitly state that price may be used as a means of securing that "exclusive Right," it does demonstrate that there is—or at least could be—a "net social welfare gain that derives from limiting the number of consumers through pricing." Under the classical theory of supply and demand, a reduction in supply of a good (or service, in more recent theory) without a change in demand will increase the unit price of that good (or service). That the Framers were familiar with at least this abstract description of classical economic theory is pretty much incontrovertible, as it both underlies the text they adopted and appears with some frequency in Madison's notes of the debates at the Constitutional Convention. Granting authors and inventors an "exclusive Right," in those terms, necessarily gives authors and inventors the right to limit the supply of "their respective Writings and Discoveries." Congress's concern in the Intellecual Property Clause was to create a net social good (promoting progress in science and "useful Arts"). Thus, a price restriction could—and perhaps even clearly does—result in a social good, however indirectly.

In the end, what this really points out is that economics is not, despite the protestations of some of its more radical proponents, a value-free method of reasoning. The key qualifier in all of the above is "net." If one looks at the entire system of intellectual property, the answer that one might arrive at may well be different than when looking at a subset of that system, let alone a single piece. This is one of the problems with the emphasis on "rivalrousness" (which, in clearer English, might well be termed "end-user reproducibility") as a measure of the propriety of treating a large class as property: by its nature, an inquiry into end-user reproducibility is both fleeting—it depends upon technical means and skills available at the moment of measure—and limited to homogeneous economic goods/services. At an extreme, the logical structure of such an argument might be stated like this:

P: RGB 999966 is an unpleasant color.

p: RGB 999966 is a shade of green.

C: Therefore, shades of green are unpleasant colors.

What end-user reproducibility does implicate is the efficient unit price for a specific identifiable economic good/service, not whether the (or a?) class of economic goods/services that includes that specific identifiable economic good/service is or is not property. This again depends upon an a priori definition and syllogism:

P: "Property" is all rivalrous.

p: "Intellectual property" is not rivalrous.

C: Therefore, "intellectual property" is not a proper subset of "property."

So why should authors and other creators care? Well, leaving aside their bank accounts—starving artists do not create art; starving artists push up daisies—it demonstrates the tension among the "marketplace of ideas" model of First Amendment law and the "marketplace of ideas" implicit in the Intellectual Property Clause. The distinctions and similarities belong in a law review article, not a blawg. The existence of some similarities and distinctions, however, needs to at least be in the autonomic hindbrain of authors and other creators of intellectual property.

Most important, though, it does not answer the question that plagues the politics of the Left: if not the status quo, then what? It is all well and good to criticize intellectual property in an abstract sense; it clearly does have significant flaws, and does create some unfortunate inefficiencies caused by translation. Intellectual property is also subject to serious abuse. I am open to suggested alternatives, but they need to be demonstrably superior as a complete system than reliance upon the metaphor of intellectual property.

Ghosts of Feist Present

Note for the humor-impaired: The following letter is a humorous attempt at some education. If you don't find it amusing, keep in mind that I don't find the underlying problems amusing.
 

Dear Angela:

I am the ghost of Feist Pubs., Inc. v. Rural Tel. Servs. Co., Inc. present. I have come to haunt you on an error of copyright law that you made in this week's Writer's Weekly newsletter that originates on your website.

WritersWeekly.com's paying markets are original market listings, created after interviewing editors at each publication. We pay our managing editor to conduct this exhausting work. We do this for OUR readers, not for our competitors' readers. When someone steals our markets, it hurts OUR readers because YOU then have to compete with the copyright thieves' readers for these writing assignments. Theft of our copyrighted material lessens the value of our content and makes it more difficult for OUR readers to get work.

There is just one small problem with this assertion: Under Feist, the work your managing editor puts into creating the market listings does not make them copyrightable. Here is an example of one such listing from this week's newsletter:

CPA Online
Current Needs: "Articles for our monthly e-newsletter and possible future publications."
Payment: Is "flexible" and depends on difficulty of article and experience of writer.
http://www.writersweekly.com/markets/091003-04.html

The listing is an alphabetical compilation of facts divided by date of first appearance in the listing. The individual online listings are slightly more extensive than is the one quoted above, but nonetheless remain factual compilations with virtually no original expression or creative arrangement of entries.

On these facts, the market listings are not copyrightable material. This does not excuse the unfair trade practice of wholesale copying and claim of origination by third parties. The stripping of the Writer's Weekly mark from the material may create a cause of action under the Lanham Act or other trademark law. However, what appears to be at issue does not include copyright infringement.

This leads to another question: whether the listings have been registered. I hope that I need not remind you that you won't be able to sue on a copyright theory until you receive the registration back from the Copyright Office, and that you won't be able to obtain attorney's fees or statutory damages unless the registration was timely (within 90 days of original publication—leaving aside, for the nonce, that the Copyright Act does not define "publication" for textual materials). But I am sure that you're aware of this.

Misuse of copyright is itself a violation of the Copyright Act. Although your assertion of copyright in the market-listing material is incorrect, it does not rise to the level of misuse. What it does do is undermine respect for copyright, which is exactly the opposite of what you should be doing in a pro-author's newsletter. While the name-calling in your post does not rise to the level of defamation, it is close, as you specifically accuse several publications of "theft" without a proper legal basis for characterizing their actions as "theft."

 
Noncorporeally yours,
The Ghost
 

P.S. Nice drapes.

Bob's Country Courthouse

The LitiGator has some interesting thoughts on the Fox v. Franken controversy. He concludes that

The fault in the Fox News case lay with the client, not its lawyer.

I must respectfully disagree with the LitiGator. We have instead the Bob's Country Bunker of litigation problems ("We've got both kinds—client's fault and lawyer's fault!"). In my effort to be fair and balanced, I believe that we need to pillory both of them. The LitiGator certainly raises a valid concern about the "public shunning" approach recommended at RealityChecker: that others who disagree with the fundamental objectives of a litigant will use the same tactics to pillory that litigant's lawyers, even when the litigant in question is controverting an undecided issue of public import. <SARCASM> But that never happens now. AOLTimeWarner would hire me to handle internet piracy litigation in a heartbeat. Lawyers who intern at the ACLU or Amnesty International have no problem making partner at white-shoe law firms. </SARCASM>

The converse, however—not criticizing or sanctioning lawyers who seek to reach a client's improper strategic goals with improper tactics—is a rather subtle, but at the same time foreclosed, difficulty with the Nuremberg Problem. In this particular instance, it essentially allows the firm in question and the three named attorneys (I will not give them the satisfaction of providing more indexable entries to their names, as that is free advertising—just like they provided to Al Franken) to justify tactics that are sanctionable regardless of the nature of the underlying litigation to escape with "I vas only folloving orders." Rule of Professional Conduct 1.2 denies this dubious defense:

A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to paragraph[]… (e), and shall consult with the client as to the means by which they are to be pursued.
   (e) When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct.

Official Comment 1: …[A] lawyer is not required to pursue objectives or employ means simply because a client may wish that the lawyer do so…. In questions of means, the lawyer should assume responsibility for technical and legal tactical issues, but should defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected.

Cf. NYDR 2–110(C)(1)(c), 7–101(A)(1) (a lawyer "shall not intentionally fail to seek the lawful objectives of his client through reasonably available means permitted by law…. A lawyer does not violate this Disciplinary Rule, however, by… avoiding offensive tactics…"), 9–101(C).

Thus, in the Fox v. Franken litigation, we have both improper ends, which justify pillorying the client, and improper means, which justify pillorying the lawyers. The improper end was use of litigation to silence an adverse opinion founded on critical First Amendment concerns, particularly by a purported "news organization." The improper means were the particular allegations in the complaint, especially the scurrilous and unnecessary ¶ 77 that consisted of nothing more nor less than a personal attack on Al Franken that did not relate to the actual causes of action alleged in the complaint (which were frivolous in any event).

I agree that Fox should bear substantial responsibility for this mess, and should be pilloried for it. I propose that Roger Ailes (chairman of Fox News) (disclosure: I had some contact with Mr. Ailes in an official capacity while an active-duty officer during the reign of George II) be required to walk around Times Square for six hours wearing nothing but a Speedo and a billboard emblazoned with the text of the First Amendment and a large, red letter "F." Perhaps he should be joined by his three lawyers, too; but I think that internal discipline within the legal community should be plenty of disparagement for them. The irony that Fox News is one of the few media conglomerates to unabashedly support the most radical form of "victim's rights" amendments has not escaped me. However, the real victim in this mess is not Al Franken. To some extent, it was the American public; but the individual who suffered the most harm was whoever's case was not able to be heard in a timely fashion because Judge Chin was forced to deal with this nonsense. Or, perhaps, even Judge Chin himself; at least he had the satisfaction, though, of smacking both lawyer and client on the public record.

On the Margins
Unfortunately, lawyers as a group have a well-deserved reputation for impenetrable prose, sloppy logic, and elevating form over substance. Lawyers in academia have a bad reputation among lawyers for all of the above. On the margins, though, there are exceptions. One of them is Professor Jack Balkin of Yale Law School. His comments on dissent over Gulf War II bear careful study by para-McCarthyists everywhere, and even by others who just wish to understand the rush to suppress dissent.

   I always thought that the whole point of democracy is to acknowledge the legitimacy of dissent (at least in principle). The arts are even more dependent upon difference. Without dissent, there is no room for literature. Literature, whether pulp fiction or "high church" literary fiction, whether serious nonfiction or Dave Barry column, works only when there is at least an implicit acknowledgement that things might be or become different than they are. It is not very far from recognizing that things might be different to the difficult distinction between should and could. My point is not that every work of literature necessarily examines that distinction; it is that even literature that explicitly disavows that distinction has acknowledged its importance. As George Orwell perceptively noted half a century ago, "[N]o book is completely free from political bias. The opinion that art should have nothing to do with politics is itself a political attitude."

   To put it another way, removing politics and dissent from the text and subtext of a work requires an immense effort and knowledge of political implications, which is certainly subject to revisionism later; consider all the Marxist interpretations in the 1980s of, say, Madame Bovary that turned a personal tale into a political screed on supression of personality in class distinctions (and worse).

   I would go even farther than do Orwell and Professor Balkin: the act of even reading literature is an act of dissent in this society, because literature is not valued by the Powers That Be. And writing is even worse—even worthless garbage like Ann Coulter's intellectually dishonest parroting of positions held dear by some of the Powers That Be. She would be just so proud to be considered a participant in the process of dissent! Of course, some of those who are more overtly dissenters would be offended.

   That our adversarial legal system (and its unfortunate corollary, the two-party system) implicitly holds that truth best emerges from the process of criticizing and attacking ideas seems to have escaped most of our political leaders.

Not Your Father's Disco
Or maybe it is. I'm going to be a bit scarce for a couple of days due to disco—of the spinal kind. L4L5 and L5S1 decided that I'm not supposed to sit at the computer for a few days. Thus, I am; but only for a few minutes. Besides, Vicadin does not make for coherent posts. Presuming that you expect to find any here…

Returning to the "price of books" thread after yet another hiatus—

   This morning's New York Times includes an article indicating that Vivendi Universal intends to cut the list price of CDs for the first time in two decades. According to the article, the wholesale price will be cut from $12 to $9, resulting in an anticipated cut of list prices from $19 to as low as $13. This appears to be a belated reaction to the music piracy issues; had the step been taken proactively (and more aggressively) instead of reactively, however, there is at least a decent chance that piracy might have been controllable.

   What this leaves unanswered is how the price is set in the first place. This leads into the question of how books are priced. There are two traditional formulae for determining the list price of a book.

   
1. Ten times the estimated per-copy printing cost. For a 480-page casebound book, printed on 50lb natural house stock (440 pages per inch), in a print run of 20,000, per-copy costs (August 2003) hover around $1.97, leading to an estimated list price of $20 or so. At the ordinary "long discount," this implies a "wholesale cost" (remember, the books legally are on consignment, not wholesaled) of about $12.
   
2. Six times the per-copy fixed cost. This includes not just the printing (and warehousing) cost for the entire run, but the per-copy cost of editorial, overhead, advertising and marketing, publicity, production, fulfillment for the anticipated sell-through, and the author's advance. For that same 480-page casebound book, editorial costs (which, these days, is largely a joke), overhead, typical advertising/marketing/publicity for a commercial book of this print run, etc., can vary a great deal depending just upon manipulation of the cost-sales worksheet used to price the book (some publishers call it a "profit-loss worksheet," but that is a misleading name). My seat-of-the-pants guess is that total per-copy costs would probably run not more than $3.50, assuming relatively "average" treatment of the book and no manipulation of the numbers. This implies an estimated list price of $21.50 or slightly less. The long-discount price would still be under $13.

So why do the current list prices on casebound fiction as described run closer to $27? At least as implied for CDs in the NYT article, there is a lot of room for cutting while maintaining profitability. <SARCASM> Is it possible that the formulae are being manipulated to justify prices that do not correspond with costs? </SARCASM>

According to the New York Times, NBC and Vivendi Universal have reached at least an agreement in principle to merge. I'd like to give a special thanks to Ed Meese, Reagan's Attorney General, for making this kind of agreement possible. (My "special thanks" is a big raspberry and some hard questions about personal finances, personal interests, and the rule of law.) The Reagan Administration gutted much of antitrust law, and made it substantially harder for antitrust interests that cannot be numerically defined to even be heard.

   The really sad aspect of this "merger" is that on its face it violates the Justice Department's guidelines for determining whether a merger is "questionable," as it depending upon the market definitions the Herfindahl-Hirshman Index even pre-merger ranges from 1780 to over 2300. Under the DoJ's guidelines, an Index value (which is calculated by squaring the market shares out of 100 of each of the comparable market players) over 1800 is to be viewed with skepticism, while a value over 2000 is presumptively suspicious. And that's before getting into the "vertical integration" aspects of the merger, which are actually far more troubling.

   Admittedly, this has less direct effect on publishing than on TV and film; but that is assuming that the HHI levels set in the guidelines are appropriate in the first place. Harcourt is not a market-dominant unit, except perhaps in K–12 education. The qualitative aspects of vertical integration in providing content counsel against looking at just the numbers. In reality, I do not expect that to happen; General Electric is too big a gorilla for the DoJ to want to fight against, especially after its experiences with IBM (which still resonate in the department's culture a quarter of a century later).

Ernie the Attorney has some interesting thoughts on sanctions in the Fox case. I disagree that Fox's attorneys should not themselves be sanctioned, as I think I made clear just after the proceedings in question.

I Don't See Any Method… Sir
Kelly Talcott of Pennie & Edmonds recently posted some interesting thoughts on software and business method patents. Of particular interest, he said:

Let's not, however, ignore the role that practicing patent attorneys have played in this. We all have an obligation to disclose relevant prior art to the PTO as part of the patent application process. For Internet and software patents, our clients are frequently the best sources for that art. Are we really doing our clients a favor when we file applications without making sure that someone has performed a diligent prior art search (commensurate with client resources) as part of the patent application process? Are we helping a client when we secure a patent upon which the client then relies, only to see it invalidated when tested in the fires of a patent infringement lawsuit?

Unfortunately, Mr. Talcott's musings are all too relevant in intellectual property as a whole. His underlying point is valid, too—that the whole concept of "business method" and software patents is open to question.

   I do not know where Mr. Talcott comes down on the concept. In the context of intellectual property as a whole—something that is seldom given enough thought—neither business methods nor software are most appropriately treated as patentable material. Business methods deal with a concept that can be reduced to practice in multiple ways. The key is the concept; and the "right" way to analyze a pure concept is as a trade secret. Software, on the other hand, actually has two components, and looking at those components separately helps illuminate the issue. At least, it is a slightly less charcoal shade of grey.

   Software includes both executable object code—the binary instructions that a computer can actually follow—and some higher-level abstraction of instructions to create that code. It remains possible to write programs directly in machine code. I've done it; and I still bear the scars from that experience. The closest analogy in existing intellectual property law is to the concept of a derivative property in copyright. Consider, for example, Gone With the Wind. (Or, if you have good taste in literature, something else.) The film is a derivative property from the novel. The film is an independent expression based upon the source code. More than one different version of a film could have been made from that same source code; one can even argue that merely adapting it for the 4:3 aspect ratio of the television screen is the same thing, analogous to porting a program from Windows to Linux. The difference, though, is that the exact "expression" of object code for a computer does not matter. The key is still the source code, whether in assembly language, Java, or whatever.

   The farther one's exact expression gets from the source code, the less protection that source code can/should have. A core algorithm is not really expressed in the object code; it is expressed in the source code. The Quiksort algorithm is an excellent (and all-too-current, due to SCO's questionable litigation over rights to Unix source code) example. There are a limited number of ways to express the algorithm. Under copyright law, that greatly weakens the protection given a particular expression. That is exactly what should happen.

   Of course, the intricate intertwining of copyright and patent law, as in the DVDCCA case, presents a Gordian knot. I propose to unravel that knot the same way as Alexander did: by cutting right through it. Patent is just not the right reference frame for analyzing protectability for software. The law of "how much different X must be from Y to avoid infringement" is so much clearer, and better developed, in copyright law that only those who wish to obstruct the progress of science and useful arts have an interest in treating software as part of the patent field.