04 May 2009

Undercaffeinated Monday

Bad week end. Bad weekend. Monday. Urghh.

  • An extremely important opinion implicating both In re Electronic Database Litigation (which I've referred to as Post-Tasini and is currently better known as Muchnick) and the Google Book Search settlement came out about an hour ago. Writing for a unanimous Supreme Court in Carlsbad Technology, Inc. v. HIF Bio, Inc., No. 07–1437, Justice Thomas held that a statutory provision regarding pendant claims is not jurisdictional, but at the judge's discretion. This is important because the language he cites as nonjurisdictional is quite similar to the language of 17 U.S.C. § 411(a)... which would definitely torpedo the restriction of the settlement classes to only registered copyrights.
  • Continuing on that general topic, German authors speak against the GBS (and UK booksellers are also against it).
  • A religion professor proposes reforming the university and assumes — wrongly, as anyone who actually engages with science and engineering faculty knows — that the problems he sees in the humanities with unemployability of doctoral students extends across the university to the same extent. Further, it assumes that taking away the admitted overspecialization will still allow faculty members to develop the specialized knowledge necessary for his proposal! One would have hoped for better logic from someone whose department is ordinarily so closely allied to the philosophy department... where one of the specialties is logic.
  • The "two cultures" meme is now eligible for AARP membership, and it's just as oversimplified and poorly analyzed now as it was then. To start with, it's a two-step distinction, not a one-step distinction: It's not "science" v. "everyone else," but it's "math" and "replicability" and "human language" in an ugly unrefereed brawl that makes a WWE tag-team event look well-structured. Second, it's not about the subjects at all; it's about how people who are not in those communities view, and communicate about, the people who are. For example, there is no fundamental fight between Chemistry and Literature — just between MBAs who really understand neither field when it comes time to structure educational funds or free-enterprise zones.
  • What will be the fate of fiction in this recession, and does it have anything to do with the future of bookselling?
  • The neofascisti Glenn Beck has signed a supposedly "better" book deal that a WSJ columnist touts as a model to be followed. Unfortunately, Mr Trachtenberg clearly doesn't understand his subject. If we really wanted to "reform" the publishing relationship to make it work in today's legal and economic environment, we'd start by explicitly making it a licensing agreement without any of the boilerplate language and assumptions inherited from the 1909 Copyright Act and 1898 Bankruptcy Act, both of which are 31 years out of date... and it would get much different from there. Payment schedules are the least of the problems; just "fixing" them won't last, nor solve the other problems that drive many of the payment problems. For example, I seriously doubt that Mr Beck's deal does anything about reserves against returns!
  • At least Beck isn't stuck with a music-industry contract, which would be worse. There's always been trouble earning money from music; compared to the push for performers to get money from radio play, authors' troubles sound trivial... but they aren't.
  • Here's a thoughtful piece on how intellectual property might change in the largest English-speaking nation in the world as we proceed into the twenty-first century. It has some interesting implications for publishing that reinforce my skepticism of Mr Trachtenberg's ignorant rant (see the previous item).
  • The 2009 Special 301 report is out, naming all the foreign nations that don't do enough to enforce 'murikan views of intellectual property... including that notorious scofflaw to the north of us. Nowhere in the Special 301 report, or any of the accompanying documents, is there any acknowledgement of the US's historical status as a haven for IP scofflaws, and in particular copyright pirates... especially in music. (Ask the heirs of Béla Bartók.)

Last for now — I'll be breaking down Carlsbad Tech. in more detail later today, specifically how it relates to § 411(a) of the Copyright Act and why that torpedoes the two database settlements — best wishes to Justice Souter on his impending retirement. It irritates me that he's what passes for a "liberal" on this Court. One might almost call his movement to the left of Attila the Hun — parallel to that of Justice Blackmun — as cosmic karma for Justice Frankfurter. In any event, this summer won't be dull in front of the Senate Judiciary Committee!