13 August 2009

Costs and Benefits

Thought for the day:

Non Sequitur, 13 Aug 2009

  • The video on the right is also — unintentionally — a window into the fair use problem. Does Spinal Tap itself count as a parody, or is it a satire? If it is, in fact (or at least in law, since in fact it clearly is), a parody, how many levels of parody count as fair use? How about the dubious idea of "transformativeness"? Where does self-parody enter into this? Most important of all, how many law review articles can I get out of this?
  • William Morris has joined me in advising authors to opt out of the Google Book Search settlement. OK, that was a little bit tongue in cheek, but my opposition to the settlement has been pretty clear from the beginning. Here are the choices:

    • By staying in, an author allows Google to display the book. Forever. For $50 (or less for an "insert" — chapter or short story). This will also set the price if anyone else comes along wanting to do the same thing. And, arguably, if there are any trademark rights tied up in this (such as a unique character or setting), it will bar enforcement of the mark.
    • By opting out, an author prohibits Google from displaying the book. The author may then sue for a minimum of $750 in statutory damages — probably trebled for willful infringement — plus attorney's fees... and Google has admitted to the infringements. Google might try to claim "fair use," but copying an entire work almost never constitutes fair use (particularly without transformation of the content).

    Meanwhile, in Europe the deal is getting more and more scrutiny, with less and less approval (and that's just the publishers!).

    Of course, the Authors['] Guild is claiming that William Morris's concerns are bogus. I'd say that the AG's rejoinder is bogus... but it isn't that good, as it reflects considerable ignorance of copyright (and trademark) law, of civil procedure, of international law, and of publishing industry practices. Some "authoritative voice"!

  • Here's a thought on the whole health-care reform issue:

    Health-care reform is the first step toward real tort reform.

    Why? Because we already pay for the health problems of the uninsured: In increased costs for the insured, in taxes for government programs, in lower productivity from the sick, in public health problems. Assuming that "tort reform" isn't just code for "somebody else should pay, and I deserve to be a free rider" — that's a big assumption, admittedly, but I'll pretend to ascribe honorable intentions to the proponents of health reform; there are, after all, serious abuses in the tort system (just not always the ones the tort reformers point to) — aren't we all better off with knowing what the bill actually is? We can then engage in the cost-benefit analysis so fondly worshipped by accountants everywhere... the same style of cost-benefit analysis that brought us the Ford Pinto gas tank.

    Despite the sarcastic tone of the preceding paragraph, I'm perfectly serious. In economic terms, it's called "internalizing a negative externality." However, the whole point of modern management philosophy is to keep everything negative externalized, so it doesn't exactly fit what MBAs, securities analysts, and accountants propose. Nor does it fit the cartoon at the top of this entry.