01 July 2005


  • I'm still digesting the end-of-term decisions. I was precommitted to commentary on Grokster, which has made it seem like that's all I care about (and I'm not done yet!). Nonetheless, in the long run I don't think Grokster will prove the most important decision that issued on Monday—whether concerning the Internet, concerning culture and copyright creators, or in the broadest sense. No, that dubious distinction probably will go to Brand X, and I commend you to Professor Crawford's comments. Both Grokster and Brand X will ultimately be overwhelmed by other events; they are strangely contextless decisions grounded in procedural technicalities, not the technologies in question (P2P file sharing in Grokster, non-telephone-line broadband Internet access in Brand X). Grokster will come in for less ridicule if only because it is forthright in clearly stating that it is not about the technology. Brand X is one of the most poorly written opinions of the Term—and I say that not just because there are three grammatical errors (those happen all the time, and are encouraged by the idiocy of legal-writing conventions), but because the writing masks the reasoning.

    The "short version" of Brand X is that federal agencies are now allowed to bootstrap their jurisdiction into areas never conceived of when Congress passed their enabling legislation, as long as there is a "rational" interpretation of that legislation that might conceivably and peripherally concern that subject. In a sense, Brand X has nothing to do with technology and everything to do with administrative procedure and the concept of the administrative state. As a successor to the excessive deference imposed by Chevron, it allows that deference to mask a question that the Court has refused to grapple with for decades: How far may Congress delegate its "necessary and proper" powers, and by what mechanism? It's one thing to delegate detailed administration of an enumerated power with little guidance. However, the FCC Act appears to rest more on the Necessary and Proper Clause than even an expansive interpretation of the Commerce Clause; and, if McCulloch teaches us nothing else, it is that the Necessary and Proper Clause isn't quite like the others. Brand X has now given the FCC the potential power to kill P2P at least as quickly as would have a different decision in Grokster—and given that the FCC has already been captured by those it purports to regulate, just how long do you think that will take?

  • Speaking indirectly of copyright infringement, though, there's an interesting article on Reuters about a matter that bears on "striking similarity." Book A (2005) contains a number of passages that are (allegedly—I haven't read it) disturbingly similar to those in Book B (1933), which is on the same general subject. The most telling aspect of the tale is in the implications of a statement by the book's editor:

    [Editor] wrote that [2005 author] was confused by her own notes and "lost sight of what was hers and what was not hers", and said the author was "horrified and upset" at what happened.

    There are three problems here. First: We've only been quoted some passages from two books on similar subjects—growing up in a convent boarding school. That is necessarily going to result in some parallel experiences, which in turn is going to make it difficult to ensure that all expressions of those problems are not strikingly similar. Second: If the editor's statement is true—it appears that nobody has heard directly from the author or her agent—then it reflects an editorial problem as much as an authorial problem. Part of an editor's job is precisely to prevent this sort of thing from happening. That's why a good editor talks to the author about sources, and gets copies of notes when suspicions (or concerns) get raised about overreliance on one source. Third: Haven't any authors learned anything from Stephen Ambrose's problems?

  • As some comic relief, one might turn to an article in The Times (London) on literary critics. The most-telling point is this:

    But then, opera, ballet, music or theatre critics generally aren't also moonlighting as singers, dancers, actors, violinists or playwrights. Nor do we hobnob socially with the likes of Placido Domingo or Harold Pinter. We try to maintain a healthy distance. That way, there are no ties of friendship, or favours to be returned. Can the literary world claim the same objectivity? When one sees Novelist A reviewing Novelist B, his old Oxford tutor, who is himself reviewing Novelist C, who happens to be A's lover… well, to an outsider it all seems jolly cosy if not downright corrupt. So when a literary critic dares to savage someone in the same mutual back-slapping club, the effect is akin to dropping a large boulder into a small pond.

    (paragraphing removed for clarity) Of course, the article concerns reaction to a critic who is not in that "club," because she's a full-time literary critic. Ms Kakutani isn't always "right"; her opinions aren't always even defensible; but they're always clear, and they're always based on a clear explication of what she actually read. One can't ask much more of a critic—even from the NYTBR, which has had the audacity to commission and print a Danielle Steel review of a competitor's romance novel, many Francis Fukuyama reviews of histories (almost always penned by what passes for opponents in the oddball community of academic historians), and so on, one suspects to avoid accusations that it only ever prints "good reviews." As A.N. Wilson is quoted as saying in the article, "Most critics will not tell you that the vast majority of books published are crap." What that says about the slush pile could frighten just about anyone; I'd like to see the graphic novel It Came From the Slush Pile as an ironic and self-aware work of postmodern horror, gore and slime included.