Buying the Buick

It's definitely still winter around here, influenza and all. Bleah. Herewith, therefore, a Bought the Buick special edition of the Monday Miscellany.

• Joanne Rowling is finally speaking out on her lawsuit seeking to halt a fan-created "lexicon" on Harry Potter.

  Rowling said she was especially irked that the site's owner and the lexicon's would-be publisher, RDR Books, continued to insist that her acceptance of free, fan-based Web sites justified the efforts. "I am deeply troubled by the portrayal of my efforts to protect and preserve the copyrights I have been granted in the Harry Potter books," she wrote in court papers filed Wednesday in a lawsuit she brought against the small Muskegon, Mich., publisher. She said she intends to publish her own definitive Harry Potter encyclopedia.

  Larry Neumeister, "Rowling Bashes 'Harry Potter Lexicon'," Washington Post (28 Feb 2008) (fake paragraphing omitted for clarity). Of course, had Mr Neumeister read the rest of the papers — they're not sealed, and they're available online through PACER — he wouldn't have taken this statement out of context. As it is, it's not completely unfair; it's just that the papers reveal that this is really an unfair competition and trademark suit more than it is a copyright suit... as I've asserted from the beginning. This isn't the time or place for a long commentary, particularly not on a matter that is currently before the trial court.

• Publisher's don't worry about just copyright lawsuits. They also worry about libel lawsuits, particularly in the UK (where the loser pays for everything), as noted in passing in this article in The Bookseller. Yes, that really does say £1200 (just shy of $2400) per hour. Other personal rights are at issue, too, particularly the so-called "personal rights." Germany presents an obvious problem, but we have the same problem over here. Or, as the case may be, authors over here have the same problem when dragged into court over there, in a practice called "libel tourism." The Second Circuit, following up a less-than-salutory certified question to the New York Court of Appeals, has ruled that a US-based author cannot get a declaratory judgment forbidding enforcement of a (putatively defective) foreign libel judgment. In this instance, the rule of decision is in civil procedure; that it involves libel is almost irrelevant (but only almost). What is interesting about this decision — whether from the Second Circuit or the New York Court of Appeals — is that it is, at a deep level, inconsistent with the very concept of jurisdiction in declaratory judgment actions... and at a fairly apparent level, inconsistent with other circuits' approaches, thus implying a reasonable (not large, but reasonable) chance that the Supreme Court will hear the matter on petition.
• Of course, publishers also have to worry about selling their products. Nobody has figured out a fair and equitable system for doing so yet. Bluntly, if someone is going to get gored, it should be the distributors, who do not perform a substantive function in the supply chain; that's an argument for another time, though, and even then it won't happen (either the authors, or the bookstores, or both, will be donating blood and organs). It's hard enough trying to figure out contemporary commercial print-publishing contracts; throw in some digital curves through a non-Euclidean business space and we're all in for a good time. Not quite as good a time, perhaps, as the music industry, given Wal-Mart's advocacy of multitiered CD pricing. Schade.
• Last, and probably least (given the recent relative success of Michael Clayton), there's a we-can't-figure-this-out article online at law.com asking why law-firm associates are leaving. Of course, there's a much simpler answer — but it's not one that the megafirms, and in particular insurance companies that end up paying the megafirms, want to consider. In law school, students are taught to see both sides of the question. The problem is that in firm practice, nobody wants to hear the other side of the question; partners and clients only want to hear how they can win, not whether the other side has a better position. You think that might be driving some associates out?