I Have the Greatest Enthusiasm for This Mission

It's a very important day today. Not just April Fool's; this is not an April Fool's entry. Instead, look at the date, numerically, in proper order:

01.04.09

One four nine. The squares of the first three integers. Perfect to fifteen decimal places. That's right: It's

Monolith Day

   It is now time for Dawn of Man-strength coffee, then some very, very rare meat, right off the bone...

   I think it unlikely that I need do anything else to prove I'm a nerd. Although since my computers all speak with HAL's voice on startup and shutdown, I think that would definitely confirm it.

Chunky Sausages of Dubious Origin

• So, what's your major? Answer: It doesn't really matter; the real difference between a liberal-arts education and a trade-school education is that the liberal arts graduate knows something, in some depth, outside his/her major, by design... and the trade-school graduate does only by accident.
• Bobby Jindal Hates the Arts! Yeah, I'm surprised.
• It's a bad time to be up for sale, even if you're leading academic publisher Springer. What this really reflects is unrealistic expectations of purely financial returns on the part of both the owners and the potential buyers. Yes, publishing is about making a profit; it is not, however, about all publishers earning returns that are above average, like Lake Woebegon's children. Which, now that I think about it, is all too apt a comparison.
• Speaking of everyone being "above average," The Poz (the Hon. Richard J. Posner) tries to explain the housing bubble, irrationality, and being wrong in purely economic terms... and fails. That, however, is not surprising; it's similar to the failure to classical physics to explain nuclear interactions. Economics works as a dominant explanation only inside the "meat" of the bell curve of behavior (approximately ±1.5σ); once outside that frame, other factors dominate. Since, by definition, a "bubble" is outside that area, this shouldn't surprise anyone, and exposes the primary problem with economic explanations of human behavior: the neglected distinction between "necessary condition" and "sufficient explanation". Economic factors are always a necessary condition in an explanation, but they're seldom sufficient in themselves; for one thing, no purely economic model can explain either "altruism" or "artistic integrity" and remain internally consistent, and that's just the beginning (and the letter A).
• A new "optimization" site "for authors" called filedbyauthor.com (which I'll call "FBA" for obscure reasons, and to avoid repetition... a common SEO strategy) has started up. As this LAT article notes, it's not exactly author-friendly. The business model is quite curious: Everything is initially generated in-house by FBA, but authors are then "invited" to pay annual fees of about $100 — and up — to get control over the information and become "verified" members.

  This is much less surprising a business model than it might seem, given its origins. First of all, the site and corporation are based in Nashville. That, by itself, should send up a huge red flag to anyone who is actually concerned with creator control. One of the dirty little secrets of copyright law is the partial cooptation of the Sixth Circuit by corporate music interests from the early 1960s on — to the point that one can seldom rely upon Sixth Circuit opinions on copyright issues for an even-handed statement of the controlling facts, let alone the legal principles (and sometimes even the controlling precedent!). One of the key distinctions between the way the music business has established its contracts and the way the publishing business has established its contracts is that in music, the corporate interest always asserts trademark-like control over the creator's image, although it actually tries to enforce that assertion almost entirely with performers and not with writers, whereas publishers have seldom done that (although some — Hachette's US outpost being the largest — are starting to do so).

  Second, there's no apparent way to opt out. It's going to get awfully interesting to see how FBA handles objections from trademark holders... and I am no doubt going to be involved in that, if only as a consultant. It will also be interesting to see how it impinges upon existing communities built by authors, such as the Scalziverse and the Doctorow Continuum (which don't have much in the way of existing fan sites) and Hogwarts (which does).

  Bluntly, this is a misconceived attempt to hold authors' images — in the Nashville sense of the word — hostage. I'm strongly opposed to the business model, which clearly violates California law and probably violates a whole bunch of other law. The real question will be how to do anything about it... because, like Dracula, this sort of thing keeps coming back.

Random Bratwurst

This platter of sausages is particularly disorganized. It's Monday.

• Once in a while, the NYT does manage to get something right on publishing, recognizing that HP's MagCloud system for printing short-run magazines might — if everything goes well — turn into "vanity publishing’s equivalent of YouTube."
• Another kind of financial fraud: income-tax deniers. The real problem with the income-tax denial movement is that it is based upon "taxes for thee, but not for me." Income is merely one means of determining individual liability (the other obvious ones being per capita, consumption, and asset). There are many reasons that the American tax-denier movement is almost entirely melaninically deficient (as noted in that article). If, as Justices Holmes asserted, "taxes are the price we pay for civilization," one of them is pretty obvious: The leaders are those dissatisfied with current civilization... very much as Steve Buscemi's character (Gordon Pratt) in one very well-done arc on Homicide: Life on the Streets, they are those content to accept the benefits of civilization without themselves understanding them (in short, they're stupid, if sometimes all too clever). Which is not to say that I blindly support the income tax system as it stands (particularly not some of the exclusions for the ultrarich), but I'm not aware of a system as a whole that's better, and I'm not particularly fond of anarchy. "It can be improved" does not justify "therefore I'll bomb the whole thing."
• News that will surprise absolutely no one who is experienced with interrogations: "Detainee's Harsh Treatment Foiled No Plots; Waterboarding, Rough Interrogation of Abu Zubaida Produced False Leads, Officials Say" (WaPo, 29 Mar 2009). Well, duuuuuuh.
• Here's an interesting, if ironic, twist on "freedom of speech." A group of health-care data miners want to use the First Amendment to shield themselves from state regulation of their business of extracting prescription data and using it for advertising (among other commercial purposes). I find it hard to imagine a use farther from the core of the First Amendment; even "obscene" publications are closer to the core, particularly if one knows the origin of the laws regulating obscenity. On the other hand, since the Court has denied Virginia's attempt to reinstate its antispam law, who knows?
• When even the WSJ weighs in against a business-led class-action settlement as a bad deal, you know something's somewhat suspect. And that's exactly what happened Saturday, when a WSJ columnist actually read — and rejected — the Google Book Search settlement. Meanwhile, here's a thoughtful commentary on the decline of DRM and the rise of licensing restrictions that was entirely predictable from ProCD — but it's nice to see evenhanded (evententacled?) analysis.
• My jaw really hit the floor when I saw this bit of ignorant "theory" of contemporary science fiction from someone who obviously doesn't know an awful lot about literary theory or history. On one tentacle, speculative fiction has always employed allegory and symbolism; not just the obvious (Frankenstein) or explicit (Plato's Republic and the "allegory of the care"), but fundamentally (Asimov's robots). Speculative fiction is merely a mirror about ourselves, and we live in a society of more-overt Christianity now than we did in the 1930s and 1940s (if not necessarily greater). On another tentacle, the scope of "speculative fiction" chosen by Mr Plotinsky creates a self-fulfilling prophecy; he's simply not looking at a wide enough range of material, and instead is choosing supporting material for his preordained conclusion. On a third tentacle, the Bible is such a foundational document in Western literature that it's hard to avoid references (or seeming references) in any form of literature, which points out the most-egregious failing of Mr Plotinsky's analysis: If his point has any validity, speculative fiction must employ the allegories he seemingly decries to a greater extent than does other categories, but this is hardly the case. He certainly doesn't demonstrate it, and I can throw up equivalent quote-mined support from any other literary category for the same proposition.

Adulterated Sausages

...with 72% more sawdust and other fillers than usual!

• I'm no fan of book blurbs, but my disdain for them is nothing next to Alastair Harper's disgust. The real problem with book blurbs is not that they're out of context, or indeed anything else about the blurbs per se; it is their very existence. They reflect the worst aspects of S&M quasiacademia, as an offshoot of "brand awareness" studies on laundry detergent that have never been validated for noncommodities... and that's one of their good points.
• Here's an example of what is most wrong with the publishing industry... and it's not even the publishing industry itself. Ordinarily, payment from bookstores to publishers is net-60, net-90, or net-120 (depending upon the nature of the book and the store; most trade fiction, for example, is net-60, but it's not a book-by-book negotiation or anything like that). Now Amazon UK is offering to go to net-15... if publishers agree to accept a 2% additional discount. There are two, equally disgusting, things wrong with this — aside from the obvious antitrust problems and question of whether it's really an effective change in terms:
  1. In substance, this is a finance charge. And it's a finance charge of 2% for a 45-day "loan" (and remember, it's on returnable consignment goods!), or an effective interest rate of 16.2% at a time when central bank rates are near zero. And that's measured against the cover price; the actual "interest" is 4% for a 50% discount ((0.52/0.50)-1), or an annualized simple interest rate of over 32%.
  2. And here's the screw-the-author effect: There's a high probability that these sales will be treated as falling into deep-discount sales, halving the author's royalty... and resulting in a profit to the publisher. Consider, for example, a trade paperback paying a 6% royalty, but with a deep-discount clause halving the royalty for copies sold at a discount of more than 50% (a typical term; it does vary, but the large distributors are always riding the edge of it). Now, along comes Amazon UK, and it's buying those copies at 52% discount. Thus, the author's royalty is cut from 6% of cover price to 3% of cover price. Last time I checked, 3% > 2% for positive values. Thus, the authors would be the ones paying for this... unless their agents had negotiated some room into the deep-discount clause, which is disturbingly rare.
• Aaaaaand Bud loses another round of trademark disputes in Europe, which actually leads to a more-substantive question. The territories at issue are the Czech Republic, Germany, and Austria. What makes Anheuser-Busch think that its version of Budweiser would not be inherently self-tarnishing in those territories? If there's any part of Europe that can spot the actual difference among "lager," "pilsner," and "horse urine" in a blind, drunk taste test, it's there!

The Other White Meat

Contrast that with this self-aggrandizing whinge/protest from an AIG executive, which the NYT printed on its op-ed page. The real problem here is the underlying question, that Mr DeSantis never asks (and has probably never asked): What part of the "business of insurance" is it to be playing games with poorly understood derivative financial products? The "business of insurance" involves — at a deep economic level — the concept of risk-pooling. It's pretty damned obvious that AIG (among others) pooled risks it didn't understand... and then classified that pool as an "asset."

Yes, insurance companies need to invest the money that they get in premiums to help cover catastrophic losses in their risk pools; by the very nature of insurance, those catastrophic losses will happen, no matter how hard the insurance company tries to avoid paying the claims. However, putting a substantial portion of the assets that one is using as a reserve to pay those potential claims into yet another risk pool is just a bit disingenuous... and, frankly, stupid. Further, it's not just the credit-default swaps that are a problem for AIG; they're merely the claimants that can't be avoided any longer through overpriced insurance defense counsel. All of this is a problem before we get to "conflict of interest," which is something that AIG (and the rest of the insurance industry) clearly cannot spell without being beaten over the head with a few hundred lawsuits.

I can almost hear the "shareholder-primacy" crowd screeching in response that "an insurance company is just a business like any other, and it must be run to generate the maximum return to its shareholders." That's a nice argument, at least in theory; but it runs into two problems. First, one must define "maximum return" in a sensible manner; it does not necessarily mean "maximum return this quarter through accounting trickery without regard to long-term viability, asset growth, or indeed anything else." Second, though, an insurer is not "just a business like any other": It is a heavily regulated quasioligopoly in the ultimate business of being a pool, not a producer or facilitator. The insurance industry is one of the best possible examples of what Professor Bainbridge advocates as a "director-primacy" business, with the additional caveat that the directors have to understand the nature of their business.

I'll go with the "primitive aboriginals" on this one. Their argument is much more cogent... and at least it doesn't try to justify itself with dollar signs dancing on angels' heads.

Not Really Slam Dunks

After a weekend of watching really poor coverage of basketball — including, but not limited to, CBS's arrogance in deciding which game gets piped to which affiliate — the sausage selection is really quite, well, linked. Of course, the muscle relaxants probably worked into the equation somewhere...

• I really have only one gripe with Jon Karp's prescription for the publishing industry: He misstates Grisham's Law, which I've been proclaiming for over a decade as "bad fiction drives good fiction out of the bookstore" — a much closer parallel to the canonical Gresham's Law of management-speak than his proposed "any hit book should be imitated as soon and as often as possible". Otherwise, the comments summarized at GalleyCat are eminently sensible.

  However, he doesn't go nearly far enough in one respect: Pointing out the parallels between contemporary publishing and the US auto industry. If we take a time warp back to, say, 1977, the parallels become frightening. We've got a steadily consolidating industry constrained by a Depression-era distribution system totally outside of its control, struggling to adapt to alternatives to its preferred, high-profit products by throwing out the equivalent of subcompacts, that is steadily being overrun by MBAs who don't understand what it takes to produce its products in the first place. If insanity, as most addiction counsellors would have one believe, is doing the same thing over and over again and expecting a different result, the publishing industry is quite insane.

  Or, I suppose, we could just bail out the publishing industry, which would probably prove worse than doing nothing about it... for many of the same reasons that Soviet publishing produced virtually nothing worth saving.

• Here's an interesting proposal on testing systems. If you read this blawg regularly, there's a high probability that you did quite well on multiple-choice "aptitude tests"; my audience — such as it is — isn't exactly drawn from the stoner and jock cliques. That said, one thing that the real world reveals is that none of those tests measures either short-term or long-term cross-subject application and assimilation. For example, I'd love to see this article used as a "reading passage," along with this question (among others):

  If the survey cited in the article had a 32% response rate, approximately how many people did the survey takers contact if they received 174 responses in favor of bailing out the automobile industry?
  (a)   544
  (b)   972
  (c) 3,021
  (d) 5,370
  (e) cannot be determined from the information stated

  and have the response counted for both "reading" (or "verbal" or whatever other pseudocategory the educators have agreed to call it) and "quantitative reasoning" scores. (The "best" answer is (c)... but you all knew that, didn't you?)

• The real world of scholarship may be giving up on URLs, which indicates that the next edition of the Bluebook will include an even-more-convoluted rule, just so that legal scholarship can remain "different" (not to mention continue to be held hostage by a bunch of drunk/stoned/oblivious Ivy League law students). What effect this might have on term papers remains to be seen... especially since Kate Turabian and the even-more-arrogant-than-the-Bluebook University of Chicago Press haven't weighed in yet. If their decision is anything like the one they've made for legal citation, they'll decide that a URL is ok if it leaves off the TLD and file extension.

Extinction

Sometimes, a picture really is worth a thousand words. (Thus, I'll keep this screed short.) In any event, welcome to the modern version of baronial competition. But ask yourself a question, first: Which of our two political parties both is and has as its symbol a large, inflexible and slow-moving, land-dwelling animal with very thick skin?

Teh Internets Are For Ground-Up Links

Late sausages...

• For a change, instead of business rescuing the arts, artists could save business? Umm, right. As usual, the problem is def(success)... and that's where the law gets in the way. As long as the law requires — as part of a disturbing, despicable, inadequate, and yet utterly necessary prophylactic against certain varieties of securities fraud — quarterly reports and year-over-year comparisons, the arts culture and business culture won't even be speaking the same language. The ultimate problem will be convincing not just given segments, but the entire American polity, that there's a significant difference between "necessary" and "sufficient." "Man does not live by bread alone" seems to have been forgotten by just about everyone... even to the point of knowing neither its origin nor its meaning... and why that meaning matters even more to those of us who are not religious.
• On the piracy front, one of the "better" actors has now signed an agreement with some of the "bad" actors: the publishers. Query: Exactly what measures are the publishers taking to ensure that they even have the rights they're granting? I mean, aside from their collective arrogant assumption that they "own" the damned books? Bluntly, most trade publishing contracts don't give publishers this right.
• Predictable side effect(s) of the Google Book Search system and the relentless quest to ensure that every aspect of a business has an easily definable, quantizable return on "equity". The sarcastic might enjoy contrasting the legal and financial definitions of the term "equity." Or, of course, you could consider Jay Lake's dislike of the settlement and note that, but for never naming it, his discussion is entirely about the nonstatutory fifth fair use factor: administrative convenience.
• Football season starts tonight. Real football, where one puts one's foot to the ball, without resorting to a tea break every ten seconds and ten kilos of protective gear just to avoid meeting Mr Goalpost.

Holy Press Release, Batman!

One of the other reasons I've been somewhat less voluble of late can be inferred from the video embedded on the left. I'm a "mere consultant" in this one... primarily because I know not only where the relevant bodies are buried in New York, but their names, what they were wearing when they were buried, and exactly which of their bones are already broken (so we don't waste time during depositions on the already-broken ones). <VBEG> That said, y'all have fun on this lovely Monday, and don't spend too much time trying to figure out the strategy and tactics behind the press release in question; just be assured that its tone is not the inevitable outburst of a professional curmudgeon.

Or not only such a result. Hyperbole has its place, and its purpose...

"Look Behind You, Mr Caesar!"

Perhaps Mr Caesar should beware the Ides of March. Most Americans must beware the Ides of April (well, technically the day after the Ides of April)...

• Will new anti-Ponzi laws work, now that Cousin Bernie is in jail? Not as long as the authorities don't know how to use them and establish unrealistic guidelines for what they'll investigate, such as the $500k minimum attributable loss required by the FBI. And not as long as Harvard (and other) MBAs are in charge of the major economic actors. And not as long as we have to rely on the host of a "variety show" to make the media do its job.
• Then there's the question of capitalism beyond the crisis, and whether replacing MBAs with "real" intellectuals would produce anything other than another failure of the philosopher-kings.
• Freelancers always have it tough, but especially during a recession. I suppose that we could try teaching arts organizations to act like businesses... but given the recent track record of "businesses," I'm not sure that's a good thing!
• Meanwhile, there's the question of whether musicians should be directly paid for airplay. <SARCASM> Actually, it would pay the record companies; given record-company accounting, the musicians wouldn't see a dime, no matter how it was set up administratively. </SARCASM>
• Then there's the question of "manufactured fiction," such as C____ C____... who just can't seem to catch a break in his Hollywood "breach of contract" dispute.

Dolley Madison Fail Cakes

The internet isn't just for porn; it's for meaningless arguments about "authenticity" in depicting race in fiction. Let's turn the argument sideways for a moment, shake it, and see what falls out of the pockets of the pants it hastily put on to avoid being compared to Scalzi (who admits that he showed up for the argument not wearing any pants).

Assume that, instead of "race" — an involuntary personal characteristic that influences, but does not determine, one's personal experiences (just compare Clarence Thomas to Louis Farrakhan) — we're talking about nerds. Bookish nerds. Nerds whose personal experiences are influenced, and probably even determined, by their preference for books over the latest dance steps. By asking the question this way, it becomes a little bit clearer what's going on here. Nerds are, as a rule, more accepting of the authenticity of varied experiences of other nerds than members of visible minority x. If, for example, I told the (true) story about the substitute teacher who threw a chalkboard eraser at me in fifth grade because I pointed out the fallacy in the math story problem he was working out on the board, people would laugh, and accept that as an authentic element of the nerd experience... even if they were nerds themselves, and never themselves had had their glasses knocked off their collective faces by a teacher's errant throw, because it rings true enough by comparison to their own experiences.

The problem with a race-based argument is that race (or Catholicism in Utah, or Judiaism in rural Alabama, or anything else that is based upon a group identity) is as much a question of a Rawlsian initial position — and the absence of a veil of ignorance, if not the absence of real ignorance — as it is of anything else. A Rawlsian thought experiment pretty well trashes the distinction. Consider a hypothetical society that relegates to the Ghetto (in the sense of its origin in Eastern Europe) everyone whose father and mother were both born on an even minute between 1632 and 1638, and all of their descendants. Is their experience in the ghetto — and, of course, any fictional description of the experience — any less "authentic" because they're all fair-skinned? Or, for that matter, was Harold Abraham's experience at Cambridge (vastly different from the best-known film concerned with it) any less "authentically" Jewish? (If you think it was, his shade will probably come knee you in the groin and spit on you.)

What we have here is a misunderstanding of the difference between "correlation" and "causation," with a nod toward a theoretical problem with fiction. Race (or any other social factor) may have a strong correlation with certain experiences; in some instances, that correlation may — for a period of time — become so embedded in attitudes that it looks like causation. But it isn't, and that runs into the theoretical problem with fiction: With very, very, very rare exceptions, fiction is not about the truly average; it is about exception, whether exceptional experiences or exceptional people, that has been made plausible to the reader. This necessarily includes race. If Author X was writing a novel about American politics from the 1960s through the 1980s during the 1960s, I can guarantee you that every Supreme Court justice "of color" would look a lot more like Thurgood Marshall than like Clarence Thomas... and, in the end, that would be wrong, and seem racist of itself. Despite my vehement disagreement with most of his jurisprudence, Thomas's story — as an exception — is just plain interesting... and that's good enough for fiction. In fact, that's necessary for fiction. It is apparently, however, not necessary for teh internets.

None of this is to say that failure to do one's research is appropriate. That is never appropriate, whether one is Ralph Ellison writing about being black or Gabriel Garcia Marquez writing about a dictator. That one's research might lead to results that do not correlate perfectly to a particular reader's expectation, though — especially when viewed through the funhouse lens of fiction — does not justify vilification as Evil. Here's a non-race-based example that might make things a little bit clearer: The training, attitudes, and development of military officers in fiction. Not very many Americans are in a position to complain about this... because most of what Americans who haven't Been There know about military officers comes from fiction. There are so many bad examples out there — particularly in military science fiction — that I don't know where to begin. Compare any of those "Hornblower in Space" stories, though, to works by actual, real, no-kidding military officers like John Hemry ("Jack Campbell") — which go to great lengths to get "officership" and "leadership" right <SARCASM> even though they concern the Navy <SARCASM> — and then ask yourself whether the latest "space opera" bears any signs of "authenticity." If it doesn't, does it perhaps offend an identifiable group, and thereby justify heaping shame and disgrace upon the author for generations to come?

What this semitangent really points out is that what is at issue is not race, or ethnicity, or experience, or anything else; it is the question of group identity and belonging. That is a complex aspect of self that is often challenged by fiction, good or bad; and, in the end, it can be the creme filling that makes these Dolley Madison Fail Cakes marginally palatable. Or, at least, not Bad Logic Creme Filling^tm, although all too often the Bad Logic Creme Filling^tm oozes its way into other aspects of the fiction... and the conversation.

All trademarks in the above used without permission of their respective owners.

Google Library Project Settlement (tangent)

Suspended Animation?

The Settlement (in essay form)
The Lawsuit (in essay form)

This is a tangent from the long essay in progress on the suitability of the Google Book Search settlement. Recent events have not changed my opinion of its substantive justification (which is to say almost none); instead, I am digressing back into procedureland.

As I noted last week, the Supreme Court has agreed to consider, and determine once and for all, the following question:

Does 17 U.S.C. § 411(a) restrict the subject matter jurisdiction of the federal courts over copyright infringement actions?

For several purely procedural reasons, the Court's decision to finally decide this conundrum indicate that all process concerning the proposed settlement in the Google Book Search matter must be stopped, immediately, pending that decision. That means suspending the deadline for opting out; suspending the deadline for filing objections; and suspending the scheduled fairness hearing.¹⁰ All of these dates need to be suspended until at least 90 days after the Court issues its opinion in Post-Tasini. (Properly, I suppose it'll get called Muchnick, but I can't resist pointing to what it actually is — sort of like my continued references to 2Live Crew instead of to Campbell.) In no particular order:

• The result of the Court's decision will force reconsideration of the adequacy of representation (Fed. R. Civ. P. 23 requirement). If nonregistered books have a claim, the current class representatives are plainly inadequate, and in fact have a serious conflict with a substantial part of the class. If, however, nonregistered books do not have a claim, that creates a conflict with the publishers who were obligated — by either or both of the publishing contract and industry custom, which under New York law is also part of the contract — to register the books.
• The result of the Court's decision will force reconsideration of the superiority of a class action. I do not even want to think about trying to administer a class action settlement structured even recognizably close to the present proposal if nonregistered US works are within the jurisdiction of the federal courts. Conversely, I do not want to be counsel to any publishers who forfeited authors' rights to attorney's fees, or even participation in the settlement, through the all-too-common failure to register since registration became "optional."
• If the Court decides that registration is jurisdictional — IMNSHO, this would be inconsistent with the IP Clause¹¹ — that will still leave an unconsidered class that is outside the scope of the question the Court has agreed to review: Authors whose publishers were contractually obligated to register, but whose publishers breached that obligation. This is a much more difficult question than one might think, because it involves not indemnification but the power of any court to enforce indemnification. If registration is jurisdictional, a suit for damages against a publisher claiming failure to register cannot be heard in any court: Not in state court, because the subject matter is not a mere breach of contract, but a Federal right; and not in Federal court, because the absence of a registration blocks jurisdiction there. Or, at least, this question is complex enough that it will have to be resolved... and the proposed settlement is not just utterly silent, but utterly ignorant, on this nonhypothetical set of circumstances.
• Google has made quite clear that it intends to digitize all books. That is, no matter what, this settlement does not actually restrain the intent of a party to continue infringing unrepresented parties' rights. For example, there does not appear to be any representation of works that, under the Copyright Act, are "non-US works" among the plaintiffs, and the requirement for registration in the settlement make things rather dicey for them... particularly for mid-twentieth-century authors whose works were first published in foreign nations and then either not registered in the US or (if required) not renewed in the US.

Thus, without even going to the (dubious) merits of the settlement, there are compelling reasons for the actual counsel in the matter to file a deferment motion with the District Court in the Google Book Search settlement, along these lines:

In light of the Supreme Court's grant of certiorari in the matter styled Reed-Elsevier, Inc., et al. v. Muchnick, et al. ("Muchnick"), No. 08-103 (cert. granted, 02 Mar 2009), which implicates the class definitions and scope of settlement in this matter, Counsel respectfully requests that this Honorable Court order that:

1. All proceedings, filings, deadlines, and other process in this matter be suspended immediately until the ninety-first day following the Supreme Court's dispositive decision in Muchnick; and

2. No further communications shall be made by any party to this matter, or any person or entity acting on any party's behalf, with any actual or potential member of the classes; and

3. All notices of "opt-out" received prior to the date established in point 1 above shall be returned to those parties with a notation that further proceedings will be required; and

4. This Honorable Court shall set a scheduling hearing promptly after the date established in point 1 above to reconsider all deadlines and filings in this matter.

I seriously doubt that will happen, though, given the... reputation of some of the counsel involved. It's the right, and ethical, thing to do; it's actually in the best interests of the absent class members; but it's simply not the style of the particular law firms and litigators, few (if any) of whom have the faintest idea of the unsophistication of the majority of those absent class members, as they're largely used to dealing with securities. (That's not to say that all holders of securities are sophisticated; it's only to say that authors, and their heirs, aren't — as "sophisticated" is defined in litigation.)

---

10. Due to several considerations, not the least of which is that I have conflicts with the class and a party across the v. arising from past representation, I can't file such a motion myself. If I could, it would be in the judge's inbox by tomorrow morning (12 Mar 2009).
11. U.S. Const. Art. I, § 8, cl. 8. In recent jurisprudence, I am not aware of any purely administrative requirement imposed on a right arising through Congress's exercise of an enumerated power, other than those concerning passage of time (such as the time to file an appeal), that has withstood serious scrutiny as a jurisdictional prerequisite. This is yet another example of it mattering exactly how one loses...

Hope After Ignorance

There's a lot going on at the moment, including bronchitis (thus the recent silence here — frog has my throat, not cat had my tongue). Today's main story, though, is simple: We have a resident of the White House who can actually spell "scientific method." We haven't had that since 1980 (Clinton was a lot better at lip service than at allowing science to inform, let alone influence, his policy preferences), and that was at best a secondary effect from an engineer's passing acquaintance with science.

What's really disturbing, though, is that the various distillations of this ten-minute ceremony have been so inconsistent. The BBC (embedding forbidden) chose to include the bit about the scientific process; the AP, however, chose to include the bit about the false dichotomy between science and values. That says far too much about "news values."

Assorted Kielbasa

Polish sausages today.

• From the land of truly nerd-like sausages, the Supreme Court has just granted certiorari (agreed to hear) Reed Elsevier, et al., v. Muchnick, et al., petition No. 08–103 (from this misguided opinion from the Second Circuit). Here's the question for review, written by the Court itself (not unheard of, by any means, but not the normal practice, either):

  Does 17 U.S.C. § 411(a) restrict the subject matter jurisdiction of the federal courts over copyright infringement actions?

  This is the class-action lawsuit regarding electronic databases of magazine articles. The Second Circuit threw out the settlement, continuing to assert that § 411(a) of the 1976 Act goes to subject-matter jurisdiction of the federal courts, and that the proposed settlement was defective because it was outside the jurisdiction of the federal courts. Section 411(a) is the one that requires issuance of a certificate of registration by the Registrar of Copyrights before a lawsuit alleging infringement may "be instituted."

  Under the 1909 Act — and caselaw under the 1909 Act that the Second Circuit, and the Seventh Circuit by implication, have relied upon in deeming § 411 jurisdictional — registration and copyright were identical: There was no copyright without registration. Thus, it is clearly correct to say that the equivalent section of the 1909 Act was jurisdictional, as without a copyright there was no federal question. The 1976 Act changed that; now a certificate is merely an administrative formality, not the copyright itself. Is that enough to be "jurisdictional," though, particularly in the face of the US accession to the Berne Convention (which denigrates "formalities" as a prerequisite to "enjoying the benefits" of a copyright)?

  I think not, as I've made clear over time; I'm in the minority, however. At last, though, this will be heard. IMNSHO, registration is an element of the claim, not a jurisdictional prerequisite. That may not sound like a big difference, but it really is, for three reasons that I'm just going to soundbite at you. The first — and the reason it matters in this case — is that one can settle a claim that isn't complete, but one can't settle a claim over which the court has no jurisdiction. The second is that a correct interpretation insulates authors from the failure of their agents (the legal term, not literary agents) to perform an administrative formality (whether this might lead to a cause of action for the forfeited attorney's fees against a publisher is an interesting side issue...). The third is that by demoting the matter to an element of a claim, it actually supports the position of persons who do not wish to have particular works enforced under copyright law, and offers the equivalent of a disclaimer of copyright that is not possible when it is treated as a question of jurisdiction... because a failure of jurisdiction ordinarily implies that some other court has jurisdiction, not that the claim fails.

  My prediction is that this is actually going to turn on a series of ERISA cases and how they have delineated what is necessary to be "subject matter jurisdiction" more than it will on copyright law. That is, it's a matter for civil procedure nerds more than Hollywood/Nashville grandstanding. I predict that Justices Stevens and Ginsburg will find it nonjurisdictional; that Justice Breyer will find it jurisdictional; that Justice Kennedy will find a non-civil-procedure way to vote; and that the rest of the votes are up for grabs. In short, there is no clear majority going in on this one.

  It's too late for this Term's argument calendar, so expect a decision by the end of June 2010.

• Today's sausage variety comes from Casimir Pulaski. Illinois has a long history of enshrining Casimir Pulaski Day as a state holiday, in preference to (for a while) MLK day... quite probably because Casimir Pulaski not only has a major street named after him in Chicago (running near Midway Airport), but he has living descendants in the second-largest Polish city in the world.
• Here's a really foul-smelling-and-tasting sausage: Rush Limbaugh as the Beloved Leader of the GOP. Or you can just listen to the music (embedded on the right... as is appropriate).
• What part of "monopsony"¹ do the FTC and DOJ not understand? I'd guess all of it... as Random House is apparently being allowed to gobble up another competitor. And not exactly a pathetic one, either; the publishing-industry version of asset-stripping won't be far behind.
• Meanwhile, another player in the publishing monopsony wants to reevaluate the nature — not to mention price — of e-books. On a "new, improved" Kindle, no doubt... and assuming that publishers necessarily control the e-book rights. What was that about "monopsony" again? And the rents from restricted competition in the industry?² Of course, that actually represents (even in the UK, the source of the report) mostly figures from sales in late 2007 and early 2008, thanks to the slovenly pace of financial reporting (and payment) in publishing.
• Any zombie could have told you why your brain is not anything like a computer: Chips, wiring, and circuit boards are too difficult to chew with decaying teeth. Once computers go all organic, though, will they become zombie-fare again? Might this be a potential solution to the starvation problems in East Zombor? Might I need a lot more caffeine to be coherent?
• There really is an honest financial consultant out there — one who actually admits (in print) that he probably doesn't know what he's talking about.

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1. In technical terms, a "monopoly" largely concerns a concentrated seller with lots of central buyers, that therefore can control the price and nature of goods and services available to the public by restricting output, unfair pricing tactics, refusals to deal, and so on. A "monopsony" arises from the converse case: a concentrated buyer (or middleman) with lots of potential sellers, that therefore can control the price and nature of goods and services available to the public by restricting input, unfair pricing tactics, refusals to deal, and so on. See generally, e.g., Roger D. Blair & Jeffrey L. Harrison, Monopsony: Antitrust Law and Economics (1993). The regulatory authorities have a rather complex, formulaic system for determining whether a monopoly requires scrutiny under antitrust law, called the HHI. They simply assume that the HHI works equally for monopolies and monopsonies... but it's trivial to demonstrate that it doesn't, either mathematically or in practice. Cf. "New Yorker Fiction Editor Sees Recession Submission Boom" at GalleyCat from last Friday.
2. Remember, in economic terms a "rent" is not "the amount I pay the landlord on the first of the month for my apartment" — it is the excess profit earned through use (and ordinarily abuse) of a dominant market position. Sometimes it's merely "use," as technically any profit from a patent, copyright, or trademark — legally sanctioned monopolies — is a "rent."

   If you get the impression that I've been working on that article on the economic structure of IP exploitation again, you're right.

The More Sausages Change...

...the more they stay the same. Today's motley assortment is heavily spiced with Santayana's aphorism about repeating history if you don't know it.

• First up, there's this bit of idiocy, proposing how network television can adapt to the current environment:

  What's the answer then? NBC seems to have the right idea: acceptance. Starting next fall, they'll put Jay Leno on at 10 p.m., thus eliminating five hours of programming per week. Without having to create an abundance of new shows, the chances of NBC crafting just one hit show increases. The less-is-more philosophy could and should be the track that all of the major networks start to take. It isn't without risk obviously, but in the end, moving Jay Leno to the fringes of prime-time can save NBC costs both financial and creative.

  <SARCASM> All we'll publish is bestsellers! We'll just fill in the rest of the bookstore by publishing magazines, because they're cheaper to produce! And we'll continue to run everything through (and close the "day" with) a parade of middle-aged white guys doing identical publicity stunts, instead of some uppity woman or colored person! <SARCASM>

• Things aren't much better for newspapers. Not only is the newspaper business itself collapsing — something predictable in the late 1980s, with the rise of "joint operating agreements" that reduced two-paper towns like Seattle and San Francisco to one-paper towns publishing faintly different op-ed pages — but there's no replacement in sight.

  No more Rosebud (although there's still a chance for another Conrad Black)... and perhaps no more Pentagon Papers. That's the real problem with the newspaper industry going downhill: There won't be "reporters" who have the resources to stand up to the government, or for that matter private industry, when they print something outrageously insulting that is nonetheless the truth. It's one thing to celebrate the First Amendment freedoms one finds on the 'net; it's another thing entirely to look at the source of those freedoms and realize that the next New York Times v. Sullivan won't make it to the Supreme Court because the blogger in the NYT's place won't be able to afford competent counsel... or the distraction of the lawsuit in the first place. And for all the good that pro bono counsel can do — thank you, ACLU and NAACP, for making this blawg even possible — they are at best a supplement.

• From the Department of Incongruity, consider the caption of the photograph in the right on today's Chicago Sun-Times web front page:

  Among those products and services profoundly affected by the current recession are SPAM, cigarettes, wine and elective plastic surgery.

• If you really want to understand what's wrong with book publishing these days, just read and think about the headlines (and if you're really a sick bastard, the woeful excuses for "reporting" underneath) from Friday's PW website:
  • Schroeder to Be Succeeded at AAP by Former Congressman Tom Allen Just what we need — another former Congresscreature acting as a mouthpiece for the Fourth Estate.
  • Borders to Close Chicago Flagship Another monument to overprecise accounting; sure, a Michigan Avenue location is probably "less profitable per square foot" or some such meaningless measure, but your business is failing anyway, and that kind of visibility is awfully damned hard to replicate in the 'burbs...
  • Hachette, Strictly by the Book Exchange Charges, Lawsuits ...especially when the bowels of the distribution system (see? it's not just the US, although the configuration of the bowels is different elsewhere) get exposed to sunlight; as any surgeon will tell you, one simply does not expose the abdomen to direct sunlight.
  • Amazon Reverses Stance on Text-to-Speech Feature Yet another nifty piece of not-ready-for-prime-time technology gets inhibited by, well, reality. Keep in mind, too, that contemporary contracts seldom give the publisher the right to say a damned thing about audiobook sales; good agents reserve that right to the author.
  • St. Martin’s Expands KenKen Publishing Program, which is really just a lead-in to:
• Barbie is turning 50. I know it's rude to ask a woman's age, but Barbie (Mattel's "kept woman") has needed plastic surgery from day one. And who knows what she gets up to when not on the toystore shelf?
• One product that is apparently not affected by the recession is bad blockbuster books. Sarah Weinman is much, much too kind to one author's sobbing-on-the-way-to-the-bank lament:

  Jonathan Littell tells the WSJ that promoting The Kindly Ones in the US is not his job, but maybe his aversion to selling himself in America has more to do with the fact that reviewers here are (with some exceptions) discovering the book is an unmitigated turkey? And no, I haven't read it and likely won't, in part because I spent the bulk of my childhood having the Holocaust jammed down my throat with the kind of blunt force trauma jackhammer that makes a nearly 1000-page novel on the subject rather unpalatable.

  (typography corrected, links in original) <SARCASM> Come on, Sarah, tell us what you really think. <SARCASM> Compare this to the first bullet above... and note the irony of where the lament was printed, and who now owns that "news source". But Ms Weinman clearly has her fingers on the pulse of trends in American publishing:

  Barry Forshaw attempts to explain the enduring appeal of Agatha Christie. Though with the "refuse to die" tag, perhaps it's time to rewrite Hercule Poirot and Jane Marple with zombies?

  (link in original) Or non-pulse, I suppose. I think I'll just go have a pint at the Winchester.