Unnews Good News?

The "news" over the last couple of days has been full of unnews—stories that seem late-breaking only to people who haven't been paying attention, often for years.

• On 17 August, Barry Turner complained in The Times that more books are being published yet new authors are being left out in the cold. Leaving aside that the phenomenon of commercial publishers preferring to contract sight-unseen celebrity crap over slightly offbeat material from previously unknown authors goes back to before Mr Turner began the first edition of his Writer's Handbook, nobody who knows anything about the publishing business should be surprised. I suppose that the only real consolation is that sometimes the celebrity has the last laugh (Collins won). Some day, the publishing industry is going to wake up to the concept of "sunk costs" and how they relate to the timing of both costs and income. It won't be any time soon… but it will be amusing.
• At Inside Higher Education, an article explores the shocking phenomenon of the demand for PhD programs that do not assume that the students are 20ish kids with no real experience attending school on daddy's dime. Even more shocking, that some institutions actually admit that they can't support some worthwhile PhD programs without collaborating with a "rival" institution. I don't think this is going to be invading law teaching any time soon, though.
• And, as usual, an "arts magazine" manages to completely screw up its descriptions and concepts of copyright law, which get even further skewed by the headline-writer. This time, it's the notoriously squirrelly LA Weekly, which sips deeply of the "information-wants-to-be-free" Kool-aid:

  These parallel dogmas — free speech and intellectual-property rights — through corporate intervention and governmental abdication, are now on a collision course, and may in fact collide next month with the theatrical release of Kirby Dick?s incendiary This Film Is Not Yet Rated. A jihad against the Motion Picture Association of America, movie studios and the corporations that own them, Dick?s documentary plans to get around the prohibitive costs of copyright licensing by employing a "fair use" defense — a safeguard built into the Constitution but largely untested in the courts. Like the last time a foreign body slammed into the earth?s surface, disrupting gravitational orthodoxy, watch for sea changes, atmospheric gloom and toppling dinosaurs.

  (startlingly, no need to correct typography or paragraphing) Let's see how many misrepresentations we can find in that passage without trying, ok?

  • Free speech and IP are not parallel by any stretch of either semantics or imagination. In fact, they are normal to each other… in the mathematical sense.
  • Free speech and IP have been "on a collision course" for several centuries.
  • A film is not, and cannot be, a "jihad." And no filmmaker in Hollywood can even declare jihad.
  • Fair use is not a "safeguard." Neither is it "largely untested in the courts."
  • Since "fair use" originated as a judge-made doctrine and has since (under the 1976 Copyright Act, 17 U.S.C. § 107) been codified, saying it is "built into the Constitution" is a bit disingenuous.

  I don't think I really need to parse the last sentence, do I?

  What I find saddest is that the subject matter of the article deserves a much-more-searching examination—even in that forum—than it got. For example, there should have been some consideration to the distinction between "ordinary" works and works for hire… and the cultural (and economic) chasm between the two in permissions. But who cares, in the end, when one can end with the non sequitur contrast of William Morris and Rupert Murdoch?

• In a truly unstartling development, the First Circuit issued another copyright-based opinion that ignored both the statutory text and administrative gloss on a relatively new type of copyright protection, let alone the development of the area in other circuits. Professor Patry elucidates, and provides more grist—perhaps unintentionally—for the "put all IP Clause litigation in one (the Federal) circuit" mill. I say this based more on the idea of "be consistent" (an achievable goal) than "get it right" (an unachievable goal, given that IP law is as subject to doctrine and fashion as any other area of law—and probably more than most). On the other hand, moving the First Circuit's copyright cases to virtually any other circuit will result in both more consistent and more "correct" opinions.
• Speaking of unnews, I will not be commenting upon Judge Taylor's decision on the wiretapping/interception programs. As much as I would like to comment, the subject falls well inside my NDA. For a good overview of what is at stake, I recommend looking through Professor Balkin's blawg. The perhaps-not-originally-intended irony of applying the term "Balkinization" to the intelligence/counterintelligence community is worth a visit all by itself.
• Last, and not least, Professor Solum presents the quasi-Swiftian story of "The Battle of the Theories " (perhaps better titled "A Full and True Account of the Battle Fought Last Semester Between the Rationalized and Psychoanalyzed Theories of Law in the Jenner Library"). I remain amused that anyone could believe that a single "unified behavioral/legal theory" could possibly exist, given that the vastly simpler behavior of particles with no volition of their own can't be explained with a unified theory. And what this says about originalism in legal interpretation… is far too complex for this blawg. Especially on a Monday morning.