More Sausages

Links. And you really, really don't want to know how many of these were made.

• Everyone loves book covers. Or, at least, loves to argue about them. Sometimes, though, there isn't any room for argument, as in this collection of inappropriate children's book covers. (May be NSFW.) Partly, though, that may depend upon what one's bookshelves reveal. Smartasses will probably assert that my bookshelves reveal a truly disordered mind and explain the strength of my glasses; I don't think either is much of a revelation.
• A BBC news story asserts that children's magazines are damaging the ability to write but probably not any more than journalistic "style," such as the one-sentence paragraphs in the story. Or maybe typical journalistic "style" is just proof that this damage is far from new.
• The Department of Schadenfreude — of late, it's the only fully-staffed department at the Scrivener's Error media conglomerate — notes Micro$oft's problems with the European union with more than a little glee. (Apple, you're next.) The latest fine is rather large and interesting, but given the extensive EU history with Micro$oft — including an extensive history of noncollection of previous fines — this story is far from over. I'll therefore assign two unpaid interns full-time to distort future developments out of recognition for Fox News keep me up to date.
• A UK-based psychiatrist claims that there is a good side of depression, or at least that it has unrecognized benefits. I dare him to watch a season or two of US TV, particularly if one accepts CBS's sweet grapes as anything other than a post hoc rationalization (question: if it really didn't hurt them, why didn't they say so during the strike, or act like it?), and continue to hold that view. Especially in light of a pending lawsuit on a Cops-like attitude that may have led to suicide. Now there's some must-see TV.
• Last, and far from least: Even if he wins, can McCain even take office? Since he was born in the Canal Zone, he may not be truly a "natural born citizen." My oldest son would be watching this development with some interest — England for him — but for his natural aversion to elective office. Meanwhile, the Republican National Committee doesn't seem to think that retrieving White House e-mails is important enough to actually do. And I just heard on the radio that more than one in 100 Americans is behind bars; that very same son remarked that those we don't convict, we elect.

A Day Late (Again)

I got tied up with the Voracious Teen's financial aid paperwork yesterday, so there wasn't any time for a Monday posting.

• In "celebration" of the Oscars, we should ask if there just might be 10 sure-fire steps to an Oscar. Or, perhaps, ask ourselves whether Hollywood is dead. (Creatively, yes; but that's a much, much longer and more-tangled story indeed.)
• It's cold here now. Not quite cold enough to freeze your computer's memory to break hard-disk encryption, but plenty cold enough to freeze my memory.
• G.B.H. Hornswoggler — the nom de blog of former Science Fiction Book Club editor Andrew Wheeler — cautions against overreliance on Bookscan. I'm actually a bit surprised that his piece does not point out yet another source of books that does not accurately and timely report sales through Bookscan: book clubs! Which leads to further questions about starving artists, and particularly whether they're even being paid the pittance that the entertainment industry offers to actual content creators. Unless, that is, you assemble large, mostly meaningless tomes from other people's work and call them novels. At the moment, the publishing industry is waiting for Dan Brown. But he said the manuscript is coming...
• Somehow, I think this article on J.S. Bach misses the point. I'm not an expert on Bach's life by any means, but from what I do know one couldn't do a Peter Shaffer treatment called Sebastian. Besides which, Bach is perhaps the paradigmatic example of a figure in the arts who is respected primarily as a pioneer, not as a master worthy of further emulation today. That isn't to say that we have nothing left to learn from Bach's music — only that what we learn must be applied in light of everything else we've learned since. One runs into the same problem in literature, of course; Jane Austen leaps to mind, but she is hardly the paradigmatic example (that would have to be Dickens).

ThREDbare Carpet

Tonight will mark the end of the Hollywood award season for 2007, with the Oscars. I'll certainly be watching, as my local cable is not a la carte and I therefore don't get Comedy Central; it's not worth $34 a month for Comedy Central and ESPN. Thus, this will be my first chance to really see Jon Stewart zing the political scene (and you know he's not going to restrict his comments to the film business!).

Tony Scott, the lead film critic at the NYT, wrote today with his opinion of what's wrong with the Oscars. For a relatively perceptive critic — "relatively" because, like virtually all film critics, his background is far too deep in film (tending toward worship of certain directors and stars) and far too shallow outside of it — Scott has a huge blind spot regarding the whole enterprise. Scott feels that the problems come from the commercial aspects of the film business, and the conflict between "art" and "business." That is certainly a defensible position, but it applies to the entire business, and does not explain the problems with the Oscars themselves. Instead, the weakness of the Oscars is more structural than anything else.

First, as I've mentioned here and elsewhere before, the Oscars are too damned soon after the close of the eligibility period. That, in turn, distorts both the results and the process. That the Oscars are determined less than 45 days after the close of the eligibility period only increases the emphasis on the last third of the year for release of "contenders" — one of the problems Scott points to — and, more importantly, eliminates any real chance for reflection on the year as a whole. Combine that with the distractions of many in film production, who are mired in late-stage filming and post production on the films planned for release in the next summer blockbuster season during the height of the award frenzy, and the Oscars (and Golden Globes, and every other award given during these first couple of months of the next year) are missing their most important voices — both cautionary (that might have prevented the Kramer v. Kramer multiple-award fiasco) and contemplative (that, that same years, might have recognized the enduring power of Apocalypse Now!, All That Jazz, and the huge range of outstanding leading-actor performances other than Hoffman's, including several that were not nominated).

Second, the public is under the (mistaken) impression that each Oscar represents the opinion of the entire Academy of Motion Picture Arts and Sciences. It doesn't, with the exception of Best Picture. Instead, the various branches vote for the various awards. On the one hand, this does act as a jury that is more likely to be familiar with the demands and qualities of the various roles, which makes it a good way to nominate for awards. However, an outstanding aspect of a film must serve the film as a whole, or it is worthless (imagine, for a moment, a National Book Award category for "Outstanding Use of Vocabulary in a Work of Nonfiction"), or at least worth far less than an award of some nature implies. For example, as much as I admire Al Pacino's performances in ...And Justice for All and Dog Day Afternoon, they were so dominant that they masked the dubious overall value of the films that came from substandard scripts.

Third, and perhaps most important (to me, living here in flyover country, anyway), it might break the NY/LA lock on nominations. The Academy's condescending dismissal of the rest of the country in its eligibility criteria seriously undermines the ultimate value of the awards, and in fact explains in part the Kramer v. Kramer fiasco... as that film was "released" in New York and LA a few days before the end of 1979, but didn't make it outside those areas until into 1980. That relatively ordinary film would not have stood much of a chance against the next year's contenders. Too, the isolationism and six-degrees-of-anyone-elseness of the NY/LA axis too often results in "sentimental choices" — Hoffman in Kramer v. Kramer is far from the only one; that same year, Melvyn Douglas got his Supporting Actor award in Being There on sentimental grounds, not defensible substantive ones — based as much on personal knowledge off screen as what makes it on screen.

Law School Barbie

I think Mattel should seriously consider marketing a "Law School Barbie," as Mattel's products seem to make up a third or so of the Ninth Circuit's trademark-with-copyright-claim docket. Barbie herself can't do all that much worse than Mattel has in front of the Ninth Circuit,¹ although this time around there will at least be another chance in the trial court.

The most-recent example is Jada Toys, Inc. v. Mattel, Inc., No. 05–55627 (9th Cir. 21 Feb 2008) (PDF). The court describes the core of the dispute this way:

Jada filed an action against Mattel, asserting claims for trademark infringement, false designation of origin, and unfair competition. Jadas allegations, however, were not related to its HOT RIGZ mark; rather, Jada claimed that Mattels advertising and sale of its OLD SCHOOL and NEW SCHOOL lines infringed on Jadas use of its registered trademark OLD SKOOL. Mattel asserted various affirmative defenses and counterclaims. Among the counterclaims were allegations that Jadas HOT RIGZ mark infringed on Mattels HOT WHEELS mark. Mattel also counterclaimed for copyright infringement and dilution.

Id., slip op. at 1568 (footnote omitted). The court then takes another eleven pages to explain why granting summary judgement in Jada's favor on both its own claims and on Mattel's counterclaims was improper, primarily because there remained material issues of fact (and the judge misconstrued the standard on Jada's own claims). Ultimately, the trial court's error was in noting the facial dissimilarity of the marks in question and treating that dissimilarity as virtually dispositive.

Turning from toys to where they get advertised — television: Will the Library of Congress's Performing Arts Encyclopedia be affected by the prospects of US television networks realizing that no, the year doesn't begin in September, as they (potentially) transition to a 52-week TV schedule? Probably... but perhaps not as we might anticipate.

Finally, without much further comment (except the sound of my teeth gnashing at the pathetic library catalog software in both the University of Illinois system and the regional public libraries), there's a burgeoning move toward open source for library systems. It can't come too soon... or be worse than either of the virtually undocumented systems I have to struggle with.

---

1. I actually observed the oral argument in one of the Mattel cases — the notorious Walking Mountain — while waiting to be called to argue in Ellison. Although one could not help being impressed by the vigor with which Mattel's counsel pressed its position, being impressed by the argument itself was another story entirely, as was reflected in the opinion.

Weekday Update

It's a day late. But, since yesterday was a holiday, I'll just call this a "virtual Monday Miscellany."

• Variety once again demonstrates that it simply cannot be trusted to report accurately on anything even remotely related to a legal issue. A story yesterday on supposed changes to Russia's copyright system asserts:

  The new law seeks to clarify Russia’s collective rights management system, which under the previous legislation was a confused and opaque tangle of overlapping authorities. Report author Golovanov explains that the new legislation divides rights management societies into two groups: those accredited by the government and authorized to represent the interests of authors and rights holders, and other societies who shall receive authorization only on the basis of agreements.

  Nick Holdsworth, "Russia improves copyright law" (18 Feb 2008) (fake paragraphing removed for clarity). Had Holdsworth even bothered to read the whole report, he would have found that it emphasizes that the literal legislation available is not the principle barrier to enforcing intellectual property rights in Russia, and has not been since the mid-1990s. It's not even the second- or third-most-important such barrier. The most frustrating barrier is, instead, the concerted refusal of Russian courts to issue enforceable judgments even under the law as it stands in favor of foreign copyright holders (and other rightsholders) against Russian citizens. Some of this is the home-court advantage; more of it, however, is a system of referrals and procedure that would have frustrated the most accomplished government functionary under Murad the Mad. The wholesale Soviet abrogation of foreign copyrights is another significant barrier that the "new" legislation simply ignores. And so on.

• Just because communicating in clear English is beyond the willpower (and perhaps ability) of the Hollyweed press does not mean that it should be beyond scientists. Jay "Turn Down The Volume on That Shirt" Lake ("90% Rayon! Verrry Nice!") points to an interesting article on English as the lingua franca of science. And yes, that is a purposeful, multilingual bit of sarcasm.
• Last week, it was film; this week, it's the music industry being accused of screwing creators out of royalties. There's a very simple reason that this sort of thing happens: Intellectual property is mercantilist; unfortunately, we all — especially modern corporations — live in a world whose accounting standards are firmly based on comparative advantage. These are incompatible conceptions; consider, for example, that applying "piracy" to improper copying is both technically correct... and reeks of mercantilism. In this context, though, the key issue is that comparative-advantage-based accounting assumes that the cost of goods sold is a constant that has been fully paid at the moment of sale, which is precisely what a "royalty" is not.
• Of course, that's not the only problem in publishing I could point out. Or that I will. Consider the issue of boosterism for purported self-publishing services by vanity presses, of which Lee Goldberg exposes one particularly obvious example. Or, for that matter, the supposedly new trend toward product placement in books, which has been around for quite some time, both admittedly and otherwise.

Ninety Miles Away

It looks like — and, given that it's Cuba, "looks like" is the best we're going to get — Fidel Castro is resigning as president and head of the Cuban military. One ignorant radio commentator ecstatically asserted that means that any peace with the US won't be signed by someone named Castro... without noting that Fidel's brother Raul is stepping into his place.

The US relationship with Cuba has, for over a century, been marred by the relics of colonialism and totalitarianism. Without defending the totalitarianism imposed by the Castro regime at all, it wasn't substantially better (or worse) than the dictatorship of his right-wing-nutcase predecessors, or for that matter of Spanish colonialism. Each set of dictators had different emphases in their respective brands of repression, and in how they shared power with "middle management" of that sad island's affairs.

Fidel Castro's resignation does not mark the beginning of democracy in Cuba. Cuba has never had a democratic tradition; it has a long way to go before it can create one. And watching the politics ninety miles north of the island surely cannot be very inspirational.

Ironically, Castro's resignation has pushed news of an equally dangerous dictator's potential demise below the fold. The election results in Pakistan are in, and Musharref and his allies lost decisively at the polls. This might lead to a non-military government; I give it 36 months at the outside before the military steps back in, presuming that the military even allows this government to take power. Remember: Unlike Cuba, Pakistan is a nuclear power.

Collaborations

Over at Neil Gaiman's fine blog (and if you're an author, and you have an interest in the realities of the writing world — or if you're interested in intermittent proof that authors can too be great parents with well-adjusted kids — you should immediately add it to your personal blogroll if you don't already read it), one of his readers asked, and he replied:

Help! I'm in need of legal advice regarding ownership rights in collaborations, particularly an artist and writer. Is there a trustworthy online resource about such matters, either for free advice or to locate reputable counsel? Thank you.
— Kay
 
Not that I know of, but I'll post this in case someone has any suggestions. (The Scrivener's Error blog, over at http://scrivenerserror.blogspot.com/ is very useful and smart. But it is a blog.)

(16 February 2008)

First of all, thanks for saying this blog is "very useful and smart." Note the other — subtle — caveat Mr Gaiman quite properly includes: This is not legal advice. No blog, or publicly available location on the 'net, or book, or anything else that is not specific to your situation, is legal advice. It is at most commentary that can be used to narrow things down for your own counsel, or more likely just narrow down your choice of counsel. Anyone who pretends otherwise is just a little bit misguided.

Second, reading between the lines, I infer that this person has already engaged in a collaboration between an artist and a writer. The first place to go in such circumstances is not to a local lawyer who does not know both the core law and the practices of the publishing (and, more broadly, entertainment) industry,¹ but to the Volunteer Lawyers for the Arts. Even if VLA cannot directly help with a situation, the VLA does have lots and lots of resources for people in the arts. If you're at all serious about publishing or displaying or even just appreciating art, bookmark these two pages:

• The main page for VLA, which is hosted by the New York office, and is the gateway into other resources such as
• This directory of local/regional offices.

Third, the first question that any lawyer is going to ask is "What does your contract say?" That's right: There really, really needs to be a written agreement, and it really, really should be entered into as soon as possible — and preferably before beginning any work. This is not just a matter of business prudence; it also implicates copyrights, wills and intestate succession, taxes, property settlement in divorce, and a wide range of other issues. Remember the old Fram Oil Filter commercials — "You can pay $5 for a new oil filter now, or you can pay hundreds for a new engine later"? That is, if anything a gross understatement when it comes to collaborations.

Fourth, there's a practical issue. It is extremely rare — even in comics and graphic novels — for commercial publishers to take an author-and-artist combination that comes in off the street. For a variety of reasons, both legal and historical, both good and (mostly, but not entirely) bad, publishers prefer to make that match themselves. Mr Gaiman is one of the obvious exceptions; he could walk in to a publisher with a collaborative work and get the collaboration examined on its own merits. Mr Gaiman also has well over two decades of commercial and artistic success in collaborating with artists in the publishing and entertainment industries, and works with artists who are equally aware of the practical and commercial limitations imposed by the industry's structure (for example, how to determine which pages of a partly color interior can be color for efficient press runs).

I hope this is helpful.

---

1. The reality of law practice is that lawyers are far more specialized than the medical profession. When is the last time you heard of an ear, nose, and throat doctor who works only on the left side of the throat? That is exactly what "personal injury" is, though; a lawyer who claims to do personal injury work almost certainly works only on the claimant's (plaintiff's) side, and very well may not handle either worker's compensation and Social Security disability claims (the nose) or medical malpractice (the ears) claims at all. The regulatory authorities, though, still believe that the word "specialist" is inappropriate for lawyers, because it might deceive the public into believing that there's some additional certification involved. Phhhht! I believe the opposite. Perhaps in the early 1970s, that might have been true; these days, however, the word "specialist" and the phrase "specializing in" are thrown around for so many things that it largely means "has more experience in x than the average bear." If an NFL punter is a "specialist"... you get the picture.

   The real point is this: Y'all may not need a "fancy New York entertainment lawyer." What you definitely do not need, though, is the "family lawyer" who did your real estate closing, or handled your last traffic matter, or dealt with that unfortunate situation involving the neighbors' yapping dog, offering an uninformed "generalist's" opinion on a highly specialized area of law. To begin with, there's a very high probability that a generalist won't even consider choice of law... which is very, very significant in this context.

Interlude

This is a short interim piece. Balancing among kids, the technical challenges of changing websites and supporting Mac users via long distance, kids, sheer laziness, and kids is taking up the time I'd otherwise use blathering these days. So I'll just leave you with these items:

• The only comment I'm going to make about this story concerning e-book royalties is simultaneously sarcastic and serious: Is so-called "publishing journalism" really as credulous as publishers think authors are? On the basis of the shallow analysis of this event — I'm picking on that particular story this time, but others have been similar — it's a very, very close call.
• Sometimes it doesn't pay to try to manipulate a jury. Especially not when the judge has a reputation for not putting up with nonsense, as these patent litigators have found out. Just because the substance of the underlying dispute is probably beyond the understanding of the judge and jury does not mean arrogance works very well...
• Finally, a bit of thought on the elections. It's a sad statement when every single one of these fictional candidates for the 2008 elections would be a better choice than anyone who is running. And that's before one gets into the Bob Russell/Matt Santos/Arnold Vinick end of things.

Surprise

Two seemingly unrelated items — combined with the ongoing WGA vote on ending the three-month-old writers' strike — help illuminate one of the real problems with the various parts of the entertainment industry. On the one hand, the Tolkein estate's suit against New Line cannot come as much of a surprise to anyone, particularly after the protracted Jackson/New Line matter over the same films. The film industry is not exactly a bastion of honest accounting; the question is really not whether New Line shortchanged the Tolkein estate, but how much it did so.

Then there's news from Harvard of a faculty vote to allow Harvard itself to place their work online for public access.¹ The money quote (literally, in this instance):

The publishing industry, as well as some scholarly groups, have opposed some forms of open access, contending that free distribution of scholarly articles would ultimately eat away at journals’ value and wreck the existing business model. Such a development would in turn damage the quality of research, they argue, by allowing articles that have not gone through a rigorous process of peer review to be broadcast on the Internet as easily as a video clip of Britney Spears’s latest hairdo. It would also cut into subsidies that some journals provide for educational training and professional meetings, they say.

One of the virtually infallible signs of an economic rent is that the recipient then spends a great deal of time and effort justifying the rent with noneconomic arguments. Two unstated assumptions hiding behind this argument fall apart on even cursory inspection.

• That peer review is critical, and can only be provided at great cost. First of all, peer review doesn't always work, as Professor Myers points out. There really isn't much reason to link payment for peer review to the quality of peer review; comparing, say, the lasting value of articles in the Supreme Court Review (a peer-reviewed journal) to the lasting value of articles on comparable topics in any of the top 10-15 student-edited journals calls this into question. This is the point of faculty colloquia and conferences. Which leads to the other assumption:
• That those purported "subsidies" are both significant and the result of voluntary action by the journals. Without breaching any confidences acquired over the years, naaaaaaaaah.

Professor Patry notes that a similar program at NIH has not led to the collapse of biomedical journals (nor, for that matter, to any perceptible change in the speed, availability, or quality of peer review).²

To be honest, academic journals really provide only three services that are outside the ordinary scope of the ivory-tower (or ivory-laboratory) professor and his/her research group: consistent formatting and presentation, which is becoming less of an issue with the increasing sophistication and transparency of basic layout software; blind review, which is usually not all that blind anyway (it certainly isn't in chemistry and sport physiology!); and language editing. Let's be honest: Academics, as a group, don't write very well. (Neither, unfortunately, do peer reviewers...)

So, then, what is the connection here? Leaving aside the nontransparency of journal finance (some of them even charge the authors for publication... that is, they're vanity presses!), the connection here is the different — and incompatible, as between provider and exploiter — valuation systems for intellectual property. The distinction should sound familiar to anyone with a detailed knowledge of Renaissance economics.

To be continued... (hey, as of the moment I'm writing this, the WGA is still on strike, so a crappy cliffhanger is probably par for the course)

---

1. The irony that the Harvard University Press and the various Harvard Law School journals have some of the most rapacious and confiscatory copyright policies in all of academia has apparently escaped the faculty.
2. As a former denizen of the hard sciences and editor at an academic press, in my experience the technical term for most peer reviews is "thoroughly random."

I Don't Like Mondays

A truly bizarre collection of material today. It's even bizarre for a Monday Miscellany.

• The NYT has a rather disturbingly shallow article on the JKR lexicon lawsuit (which, interestingly, notes that the defense made its first filing and then does nothing with the substance of that filing — not even a link). There's a much shorter, pithier, and more complete piece at Madisonian (and I'm not saying that just because it links back here).

  The major problem with the NYT piece is that it fails to consider that this is a live dispute between people who have both financial and emotional interests in the outcome. This is a failing common to law school instruction, too: Although the opinions are written in the abstract, to the participants the issues are anything but abstract. It's even worse when the real parties in interest, and the nature of their interests, get masked by procedural things. For example, this lawsuit is always going to be characterized as "Rowling v. fans," but just examining the counsel list on PACER (with some knowledge of who tends to do what) should disabuse one of that notion fairly quickly.

• The publishing industry continues to live in "digital denial" over e-books. Neil Gaiman's announcement that his US publisher will be giving away free copies of an e-book to be named later does not convince me otherwise; HarperCollins' e-book system is actually impossible to use and relies on users not patching known security holes and bugs for its DRM system. Tor's announcement might be better, if its signup system actually works (no sign in the last 72 hours that it does). And so on.

  Meanwhile, academia soldiers on by putting The Domesday Book online formatted for usability, including indices and database entries along with the text. Except, of course, when academics reach retirement age, at which point all hell tends to break loose.

• Critical advice for authors: Remember that you're in a business environment. Although I don't agree with everything he says (and certainly not with all the details), any author seriously thinking about that business environment needs to at least think about the issues John Scalzi raises about the freelance life.
• And if that isn't bizarre enough, consider that the WGA strike appears to be ending. Not, unfortunately, in time to kill off reality TV. Or baseball season.
• The entertainment industry is far from the only source of bizarre news at the moment. And I don't even have to descend into the depths of American electoral politics to note that... although that's not going to stop me from doing so. As Professor Patry notes from his virtual desk over at Google (no doubt while trying to ignore the initial rejection of Microsoft's bid for Yahoo!), nutjob Senator Spector has introduced an obviously unconstitutional bill to exempt churches from copyright so they can have Super Bowl parties. Pardon me, Senator, but what part of "Establishment Clause" do you not understand? Oh, that's right — you've long made it clear that you understand none of it. This is nothing more than pandering to xtian evangelicals, for a very simple reason: I seriously doubt that any Jewish or Muslim place of worship will be affected... and I seriously doubt that too many Greek Orthodox or Episcopalian congregations have big Super Bowl parties.
• Across the pond, the Archbishop of Canterbury has not just stuck his foot in his mouth — with his statement that UK law must necessarily import aspects of shari'a, he demonstrated the true value of the Establishment Clause in a democracy, republic, or for that matter any government. It will be quite interesting to see how the legal system manages a pending decision on arranged marriages involving parties unable to consent.
• So Hillary fired her campaign manager. What this really reflect is that the Democratic party might have to confront the difference between "the desires of the party leadership" and, well, the democratic will of its membership and supporters. I find it rather ironic that Hillary's best chance now lies with influencing the constipated old white men who form the core of the party's power structure.

Another One Bites... the Dust

Well, another Heffalump has dropped out — Romney drops out and (as the Perfesser noted) stops spending his kids' inheritance. Now if his party would only stop spending my kids' inheritance, that would be nice. Don't get the idea that I'm too happy with the Jackasses and the way they are spending my kids' inheritance, either; it's just a question of what part of the inheritance.

This campaign is looking more and more like the campaign to replace Bartlet that was spread over the last couple seasons of The West Wing. I'm going to need a serious reality check, though, if people start referring to the upcoming Jackass National Convention as a "pie fight."

More on Silent E

Sarah Weinman printed an edited version of an e-mail from the silent-e Inger Wolfe today that actually reinforces my comments from last Thursday on the need for more sophisticated analysis of pseudonyms... before they get chosen.

Weinman quotes "Inger Ash Wolfe" as saying:

[A]t the time I began writing The Calling, in the early fall of 2005, I did a search on the name and came up with nothing. (If you put "Inger Wolfe" — with the 'e' — into Google, no references to the Danish Inger Wolf, prior to the ones in your blog, come up at all). Later in the fall of 2005, I checked for similar names and different spellings just to be sure: Inger, Ingrid and Ingmar Woolf, Woolfe, and Wolf. And that's when I found the Danish Inger Wolf. When I discovered her, she had published one book in Danish — a literary novel entitled Sidespring — which had appeared in 2000. At that time, I consulted with my agent (The Calling was not finished yet and had not been sold), and we agreed that the work I was doing was significantly different from the work of the Danish author named Inger Wolf, as it was written in a different genre, as well as in a different language; it was not available, five years after its publication, in any other language than Danish, and also it seemed that this author might no longer be active as a published writer: nothing else had come out since her debut. As a result I continued with my plan to use the name with its spelling different from hers.

(bold emphasis supplied) Let's look at just a few of the problems this raises.

• The bold-faced language completely destroys any claim that silent-e Wolfe was unaware of the Class 16 (and probably Class 41) goods available from the Danish author, regardless of the earlier-in-the-paragraph reliance on Google as a sufficient search. Thus, we're probably into willfulness territory, absent an appropriate opinion from counsel after sufficient investigation.
• The statement of alternate spellings checked seems almost willfully ignorant of the most-common alternate surname spelling of "Wolf."
• Checking domain registrations shows that the Danish author grabbed that website name on 23 September 2003 — two full years before Canadian "Wolfe" allegedly chose that pseudonym.
• The bold-faced language also reflects complete ignorance of how trademark law works, either in the US or EU... let alone how other aspects of unfair competition law work. Nonetheless, the agent clearly gave advice on circumstances covered by that law (or, at least, "Inger Ash Wolfe" asserts that the agent gave such advice).

My point is not that this is an egregious attempt to trade on the Danish author's good name. It is that the parties who were not the senior users of the mark floundered. I sincerely hope that everyone comes to an appropriate agreement on the substance of this particular "conflict," and I suspect that won't be too difficult. The problem is that the process was — like so much else in publishing — inept, insufficient, and insane. Canadian Wolfe essentially took legal advice from his/her agent. His/her agent should take a very, very careful look at the unauthorized practice of law statute in his/her (the agent's) jurisdiction, and resolve never to cross that line again.

Unless, of course, he/she is a lawyer... which would lead to more, and more interesting, questions for which the legal community itself is even less prepared than the publishing community (if that's possible). Multijurisdictional practice is hard enough!

Two by Tuesday

I'm sitting in a coffee shop near campus, watching the cockroaches from a nearby fast-food place line up two by two in the face of this city's gross incompetence at providing drainage (a classic "free rider" problem, although "free swimmer" might be more accurate at the moment — and certainly is for those cockroaches). The streets are averaging about 30cm of water. Cars look like they're surfing on South Neil under the streetlights. And some diligent surfing of my own has uncovered...

• One of the purported themes of the Reagan Revolution was a "return" to the concept of "that government governs best that governs least." This is, at best, a vast oversimplification. I'd rather have a (relatively) accountable government to smack in the face when it oversteps its bounds in suppressing criticism than an uncontrollable corporate entity engaged in union-busting. I suspect that former Professor Blakey hasn't caught on to the irony that he is simultaneously emulating both Robert Kennedy (remember Jimmy Hoffa, et al.?) and various state Attorneys General (particularly in coal country prior to the Clayton Act) who tried to bust unions... but he's doing it as a private attorney general. Then, on the other hand, there's the sheer arrogance of the Bush Administration's attempts to evade the effects of a judicial ruling that the Navy must comply with environmental laws. There's no "national security emergency" here; as Judge Cooper said, "The Navy's current 'emergency' is simply a creature of its own making, i.e., its failure to prepare adequate environmental documents in a timely fashion..." This administration believes that nobody else can get in its business, in the face of Article III's requirement that "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." The last time I checked, this wasn't just advice...
• Speaking of "union busting," some elements of the corporate-owned media are trying to respin the WGA strike and claim that the industry, and everyone else, will now be "hostile" to the writers. Of course, as I've remarked previously, Michael Cieply isn't exactly the most objective reporter on the WGA strike. What's that? Liberal MSM? Riiiiiiight.
• On a somewhat lighter note, authors should learn how to avoid "truthiness" scandals. It's actually pretty easy: Verify. Document your sources (and that means you, too, Dan Brown). And tell the truth as you know it... and if you don't know the truth, get help from someone other than a publicist at a NewsCorp imprint.
• Speaking of accuracy, perhaps accurate attribution of authorship matters. Does the word "trademark" not mean anything to anyone? Or, perhaps, is this just another version of the Muskie "Canuck letter"?
• Wow. I have another opportunity to bash the work-for-hire doctrine in US copyright law, thanks to an article on comic-book IP rights litigation. What part of "author" means "patron, as Michelangelo — or Macchiavelli — would have understood the term"?
• Finally, without comment other than a note of amusement: At least some linguists and anthropologists seem to be adopting a punctuated-equilibrium model for language.

Practicing for Election Day

I did something I've never done before: I took a party ballot today. I'm ordinarily a staunch independent. However, there was a contested local primary — for State's Attorney, a position that should be appointed by the courts and not elected, but that's for another time — in which I have deep, deep misgivings about whether one of the two candidates is an appropriate choice for the office. I therefore left the rest of the partisan part of the ballot blank, voted in that race, and voted in the four nonpartisan referenda.

Oh, you want to know how I voted? Well, first of all, here in Chambanana, our issues don't really matter; one of the referenda requires a change in state law (that isn't going to happen) to become effective, and the other three were poorly written and conceived "advisory referenda" telling legislators to support position X (and Y, and Z). And second of all, as I told the pollster who asked me the same question outside, "What part of 'secret ballot' do you not understand?"

The most irritating part of voting today, though, was where I had to do so. The traditional polling place in this precinct was a boathouse at a nearby park (Crystal Lake, if you know Chambanana). The facility wasn't acceptable. Thus, about a week ago, I got a postcard in the mail from the local wingnut county official in charge of elections... changing it to the nearby new church building (it's as close to a "megachurch" as we have in this area, fortunately). The facility was fine; I just have a problem with mixing "church" and "election."

Post-Groundhog Monday Miscellany

It's Monday. I need caffeine.

• A couple of strange (that is, "normal" in this context) items from the world of commercialized music. On the one hand, Norman Lebrecht lets loose yet another misdirected broadside at arts organization governance, this time asserting that the problem is not that fans don't have a say on arts boards, but that nobody listens to the fans. Really, Norman, why do you think that many symphonies only play "warhorses," and it's so bloody hard for noncommissioned new work to get played after its debut? Is it because the purported insiders on the boards haven't ever heard any music from after the three Bs? And maybe, just maybe, you should think a bit about what is happening to the Grammys without blockbusters this year before you go too far the other direction.

  The real problem is that "arts" and "governance" are not so much mutually exclusive as orthogonal interests... and one of the two (guess which one?) simply defies measurement in the first place. Thus, expecting a board with a fiduciary duty of measurable impact to actively consider the immeasurable imponderables of a "representative" fan or three's input is just a little bit unrealistic. Not to mention silly, like so much in the world of music.

• WaPo has an interesting article on a feedback cycle between "entertainment production" and "law" revolving around GITMO hearings. Of course, the article raises far more questions than it answers... just like the hearings themselves.
• One of the real issues in any publishing-industry dispute — and it's a hard, and probably insoluble, one — is "What, exactly, is the truth here?" One one hand, there's the recent manufactured controversy over the truthiness (or not) of Beah's autobiographical account (N.B. this is a representative article, not one I hold out as, itself, a paragon of truthiness).

  On the other hand, there are the underplayed allegations of improper self-dealing by wingnut publisher Regnery to cut royalty payments, which is now going to arbitration. The real problem with arbitration — particularly in the publishing industry — is that it is a remarkably poor mechanism for resolving factual disputes. It can work reasonably well when everyone agrees on all, or almost all, of the relevant facts; for example, that the Kobayashi Maru was forced to jettison its cargo of gas-guzzling suburban assault vehicles by monster waves in the Pacific, leaving only the question of who bears the risk of loss. Arbitration does not work well, though, when there is any real possibility of incomplete data, let alone "innocent" deception or outright lying. I find it quite interesting that draft (and, for that matter, signed) publishing contracts I encounter are most likely to include mandatory arbitration in those contexts most likely to result in later disputes revolving around incomplete data.

• So, then, why does it take so long to publish a book when technology is streamlining so many aspects of the process? The traditional, academia-oriented answer is that the technology thus far applied to publishing does not do much for the critical path: the sales/marketing/publicity efforts. (Of course, that assumes both that there are any for most books, and that what efforts there are make a predictable — or, indeed, any — difference.) That's what this article concludes. However, the article is looking at the wrong critical path. Editing, revision, copyediting, and proofreading are still human-bound processes. (In fact, there's a rather nasty word for publishers that rely exclusively on technological "improvements" for these steps: vanity press.) So, then, if the publishing industry really wanted to get books out more quickly... it would stop putting noneditorial tasks on editors and let them edit. It doesn't; so, then, one can only conclude that faster publication isn't a priority. And untangling the many reasons that it isn't is far, far too complex for this blawg.
• Those familiar with the vastly overrated A Chorus Line are probably aware that many of the character studies that form its unstructured core came from "workshopping" with dancers. Those dancers have now reached a deal ensuring that they will get a cut of the profits. Leaving aside the definition of "profits" for the moment, New York law made this substantially harder than it really needed to be... in contrast to that of most other states. That, however, is an argument for another time.
• Last, and far from least (coffee-spew warning): My son proposes that the next time Hannity and Colmes need a vacation, Fox should replace them with this commentator and this one. He's not sure anyone will be able to tell the difference, given the reality orientation of the guys on vacation. Neither am I.

Strategic Thinking

Yesterday's unsolicited bid for Yahoo! by Micro$oft probably does not mean anything close to what the media would have everyone believe. Although this is not precisely a new possibility — rumors have floated of MS bids for Yahoo! for a couple of years now — the markets and the media are being forced to confront some possibilities... and are being perhaps willfully blind to others.

This probably isn't about a strategic partnership, or about integrated services. It's about media consolidation and antitrust... and it is primarily pointed at preventing something else.

The real hint here is this: Micro$oft already knows that it won't get European approval for any such purchase. What, then, is the target? One cannot be certain, of course, unless one was in the relevant board meetings (and I certainly was not!). One major candidate, though, has to be Google's pending purchase of DoubleClick. Unfortunately, the Justice Department is laying down on the job on Google/Doubleclick, probably because it misdefined the "relevant markets" (yet again). It's been just long enough since the last major DOJ clearance announcement — about a month — for all of the necessary consideration and behind-the-scenes setup.

Micro$oft may be hoping one or more of several things happens:

• Google, in its rush to oppose Micro$oft's purchase of Yahoo!, says things that will force the DOJ to reexamine its nonopposition to Google's own purchase
• The DOJ will reexamine that nonopposition on its own
• The EU will be tipped off on additional ways to question the Google/Doubleclick transaction
• Google will get tunnel vision and not notice that Micro$oft is up to something else — as a hypothetical example, a new "security feature" in an OS update that cripples GoogleDocs because "GoogleDocs is just another online program asking for OS-level access, and that's a biiiiiiig security risk"

Or there may be something else at work entirely. Or, of course, it may be a real bid, too. My point is just that a bid of this nature at this time seems plausible on its face... but less plausible for its own value than as a tool for other purposes.

Much to my nonsurprise, I've seen almost nothing in any media source either questioning or even speculating upon the purpose of this bid. If there's one thing that we should have learned in the last twenty years of media and computer-industry consolidations, it's that the stated or apparent purpose of a transaction that has the effect of increasing concentration in a relevant market is almost never the "real" reason... or a sufficient strategic justification for the money and effort put into the bid process itself (let alone the bid's "value").