28 February 2005

Domino Theory

Another media-conglomerate domino is falling. Lord Stevenson, the chair of Pearson (and hence Overlord of Penguin, Viking, et al.), has "unexpectedly" announced his resignation. After the teething problems Penguin has had in the last fifteen months with its new warehousing system in England, I'm not sure that "unexpected" is the right characterization. What I find "unexpected" about the matter is that the warehousing problems, which according to bookstores led to at least a 10% fulfillment failure, got none of the blame for lower results; instead, everything was blamed on advertising revenue shortfalls, "poor performance from Penguin and the weak dollar." And, of course, the "publishing press" lets them get away with it; the story in the weekend's Times (London) wasn't a helluva lot more comprehensive.

Let's see, now. First Bertelsmann, then Vivendi, now Pearson. Who's next—Holtzbrinck?

*  *  *

On to another matter. The Register has a fascinating diatribe on the Creative Commons movement. Or, more specifically, on Garry Trudeau's satiric reaction to it in Doonesberry. The really sad thing is that, as telling as that reaction is, it's only sliding around the periphery of the whole issue, because the Creative Commons is really an attempt to evade the IP Clause, not just choose otherwise. Under the IP Clause, authors shall have an "exclusive right". The Creative Commons attempts to police this with a mere contract—one with unstated loopholes, as I've noted previously—not to enforce that right. Leaving aside revocation and termination, that means that the Creative Commons license is subject to every other attack on enforceability of a particular contract.

Let's look at the example cited in the Register: an attempt to use a CC-licensed cartoon as part of a membership campaign for the National Party (a group of loons who make Jerry Falwell and Pat Robertson look downright tolerant of gays). What defenses against enforcement of the CCL does one have? There's the hoary old "lack of consideration," for starters. (Remember, there must be consideration to both sides under classical contract theory, and there is no apparent consideration to the author under the CCL.) And that's just for starters.

Maybe I'm a "weirdo" among American copyright scholars and lawyers in advocating a much stronger version of moral rights than we now have (if not, perhaps, as draconian as the French version, which essentially never expires). If so, then I'll gladly stay a "weirdo" against the likes of Disney. After all, under French law it's just possible that there might be a cause of action by Charles Perrault's heir for the Disney version of Cinderella… <vbeg> although in reality the only winners would be the lawyers.