The 2009 Turkey Awards

An annual tradition for over a decade! This is my list of ridiculous persons — natural and unnatural — from 2009 (so far). Pass me one of those rolls, please:

• The Greasy Gravy Award for oily publicity that makes the main dish inedible goes to Amazon's PR department for its role in #amazonfail.
• The Red-Tide Oyster Stuffing Award for carelessly poisoning an otherwise tasty dish goes to the creators of Category I... and the maroons who publicized it without disclosing their own conflicts of interest.
• The Broken Wishbone Award for shattering dreams goes to Harlequin Enterprises for its inexcusably deceptive and conflict-of-interest-laden vanity press program, variously called Harlequin Horizons or Dellarte Press. Leaving aside various trademark problems that make this a delicious potential law-school exam question, one must wonder just how stupid Harlequin's corporate madames think authors are... and, sadly, conclude that they're probably right, at least in the aggregate.
• The Golden Gristle Award for assertions far too difficult to digest (and usually stuck in one's teeth) goes to Sergey Brin, one of the founders of Google, for his "defense" of the GBS settlement. He is apparently under the impression that the only people who should be allowed to profit from copyrightable materials are those who distribute them — not those who create them.
• The Crabapple Pie Award for marketing something sour as something sweet goes to the Washington Redskins for the corporation's intellectually dishonest position in litigation over its logo (and name).
• The Brussels Sprout Award for stinky, slimy, overcooked, gentrified little cabbages goes to the British Parliament for its continued refusal to reform its libel laws to conform to reality, to consistency with either the European Union's or "democracy"'s limited principles of free speech, or to avoid the class-hostility pretensions built into them.
• The Dried-Out Breastmeat Award for overcooking the books goes to the captured financial regulators who enabled the current economic mess (or, some might argue, made it inevitable).
• The Rancid Drumstick Award for something that should be edible, but isn't, goes to the class counsel in the Google Book Search settlement.

The Last of the Pre-Thanksgiving Link Sausages

Too many other things going on lately... like pondering the nature of 'murican politics in preparation for the Turkey Awards.

• Some kinds of books may be bad for literati (and for publishing in general). This isn't really the analogy I would have chosen: I might have mentioned tobacco or coca as an alternative to real agriculture. And it has nothing — nothing — to do with the difference between "what is published and when" and "how it's displayed for sale."
• But, if you insist, here's how to grow do them.
• Meanwhile, across the pond, the UK government's attempts to regulate the 'net may result in regulating literary agents (which, given the sheer incompetence displayed by too many agents, wouldn't be an entirely bad thing... but the price is too high).
• There appears to be a strong, negative correlation between "social prosperity" and "social pervasiveness of religion"... announced just in time for the 150th anniversary of On the Origin of Species.
• Against the forces of dumbness in Hollyweed, there's this refugee from near Cleveland.
• What's a link sausage platter without a little controversy on the proper reach of copyright? As my comment to that article indicates, though, there's also a cultural/"we don't have any other weapon!" problem buried in there... as my own experiences with the [Famous Dead Author X], [Famous Dead Author Y], and [Famous Dead Author Z] estates over the last quarter century demonstrate.

Canadian Madames

Apparently, the world's largest romance publisher — already notorious for short shelf-lives, miserly author compensation, and improper treatment of copyright — thinks that aspiring romance authors could learn from Velvet Jones. At least 'hos get paid, though.

Harlequin has announced that it is establishing a vanity press arm to go along with its commercial publishing business — where, for approximately the same as it would advance to a previously unpublished first-time author, authors can pay for seeing their names in print.

But wait — there's more!

Harlequin isn't even doing the work itself. It is, instead, partnering with the highly dubious Indiana-based Author Solutions (the current owner of AuthorHouse, Trafford, iUniverse, and xLibris) to make these hourly rentals available to prospective romance authors. Didn't PT Barnum say "There's an author born every minute," or something like that?

This is on top of the already-existing (equally unethical) eCritique "service" recently set up by Harlequin. Harlequin's excuse is that things are going to change in publishing, so writers just need to accept that Harlequin is going to take advantage of every potential income stream. That's more than a little bit like saying that a bank is entitled to embezzle from your account, merely because the banking system is the only game in town; or that a classic boiler-room operation is acceptable because the people it rips off really want success that much. In short, there's more than a faint odor of dead fish and fraud.

This time around, though, writers' trade associations are not accepting Harlequin's newest attempt to squeeze blood from a turnip. SFWA, MWA, and RWA have all issued public statements of disapproval. So far, Harlequin's response has been to change the name of the program.

My advice, for what it's worth: Run away and shun all Harlequin products (that you can clearly identify). Just because the corporation is in Canada does not give it license to avoid the consequences of its greed. If the corporate masters there think that aspiring authors are nothing more than 'hos, they're nothing more than madames (or, if male, pimps).

GBS: Settlement 2.0 Deadlines

Judge Chin has provided "preliminary approval" (PDF image) of Settlement 2.0. This does not mean he thinks it should/will be approved; it means, instead, that:

7. The Court has reviewed the Amended Settlement Agreement and determined it to be within the range of possible approval;

GBS Doc. 772 (19 Nov 2009) at 2. The critical dates and procedures established are:

• Supplemental notice shall commence on 14 December 2009 (Doc. 772 at 5 ¶ 17). This requires two types of contact:
  • For anyone who has previously filed anything — a claim form, an objection or statement, an opt-out — a mailed or e-mailed notice (Id. ¶ 20); or
  • Posting on the "official" settlement website (Id. ¶ 19).
• Previous opt-outs do not need to be refiled; neither do previous claims (Id. at 6 ¶ 24).
• Previous objections do not need to be refiled concerning portions of the agreement not changed (Id. at 5 ¶ 18).
• The new deadline for opting out or objecting to the Amended Settlement is 28 January 2010 (Id. ¶ 17).
• The fairness hearing is tentatively scheduled for 18 February 2010 at 10am (Id. at 4 ¶ 13).
• Persons wishing to be heard at the fairness hearing must file a Notice of Intent to Appear on or before 04 February 2010 (Id. at 8 ¶ 25).
• Implicitly, the deadline for those in either subclass to file claims has been extended to 31 March 2011 (Id. at 11). This is inconsistent with the official settlement administration website at the moment, which still says 05 June 2010.

More to come... later.

Google Book Search Settlement

Tangent: A Short Gloss on Antitrust (1)

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

While I was in the midst of expounding upon the antitrust implications of the GBS settlement proposals — and, indeed, whether any settlement could pass antitrust scrutiny absent legislative approval — I realized that I was using a great many technical terms and concepts. As mysterious as the technical terms and concepts of publishing and of copyright can get at times, they're an order of magnitude clearer than those common in antitrust law. Before I make anyone's head spin any faster than 33¹/₃ RPM, I suppose I should try to bridge that gap... particularly since storage devices these days tend to spin at 5400 or 7200 RPM...

Antitrust law is founded on the same principle as is the US Constitution: No one actor (or, as we'll see later on, group of actors acting together, intentionally or otherwise) should be allowed to obtain or maintain dominant power without challenge absent a specific grant and need to do so. In politics, we have the "three branch" system; in market economics, we have "antitrust and competition law." The political definition of "power" is parallel to the market economics definition of "power," but they're measured differently.²⁷

I'm now going to try, using cross-platform HTML code, to display a block diagram that will (hopefully) illuminate what is going on when one is dealing with intellectual property in an antitrust context. Keep in mind that this is a general-purpose diagram that I redrew from several sources over a decade ago, and not something for GBS or even print publishing in general.

IP Creator
⇓  ⇑
Product Differentiation and Packaging
⇓  ⇑
Product Distribution
⇓  ⇑
End User

In this horribly simplified block diagram, the downward arrows represent the (anticipated) flow of intellectual property²⁸ and the upward arrows represent the (anticipated) flow of compensation. In short, each pair of arrows represents an aggregation of binary market transactions. The key point is that each of the four blocks represents different perspectives on, and balances in, antitrust considerations.

The first thing to keep in mind, antitrust-wise, is that that lefthand arrow has been granted an exclusion from antitrust scrutiny unless it is "misused." Misuse is a shorthand term for a variety of sins, most of which concern attempts to exert power over rights not protected by the intellectual property using that intellectual property as a lever. This is most obvious in "tying" arrangements: "I will not allow you to buy or lease this protected-by-patent photocopier unless you also buy the paper, toner, and service contract from me, even though the paper, toner, and service contract are not protected by that or any other patent." In the entertainment/publishing end of intellectual property, this often appears as either unfair/excessive license fees for reuse (I'm talking to you, ASCAP/BMI!) or overassertion of rights (even louder), and sometimes as outright refusals to deal.²⁹

The second thing to keep in mind, antitrust-wise, is that each block has both monopolistic and monopsonistic aspects. I can see a big "huh?" already... in short:

• Although "monopoly" is often used to encompass the entire field of antitrust law, technically (and mathematically) a monopoly concerns only a one-providing-property-to-many situation. In the block diagram, the end user can never be a monopoly, because it doesn't provide property to many: It may receive property from many, but that is
• A "monopsony." However, antitrust theory requires more than merely reception of the property; it also requires that there be no rational alternate means of exploiting the property, which is one of the areas in which antitrust theory and intellectual property theory are inconsistent.

Keep in mind, too, that superior practices and products are not antitrust violations, so long as there are acceptably low entry barriers to another potential market participant who comes along with even more superior practices and products.

Those of you who actually paid attention in sixth-grade math will, very soon now, begin to understand why it makes a difference whether one is considering a monopoly or a monopsony as an antitrust issue. That very soon, however, will have to wait for the next entry... which will be much more tightly tied to the GBS settlement.

---

27. If you're wondering whether intellectual property laws somehow violate this principle, you get a gold star on your daily report. The distinction is that the US Constitution, with the IP Clause, gives a specific grant and states a specific need for allowing certain limited monopolies in intellectual property... and therefore falls outside of this objection for the initial owners (creators) of intellectual property. The problem, as we'll see down the road, is that the GBS does not concern the initial owners (creators) of intellectual property, but later market mechanisms for distribution of that intellectual property that largely ignore the interests of the initial owners; as Randy Newman says, "It's Money That Matters."
28. Or, in many circumstances, derivative works based upon that property, possibly combining other intellectual property to create a single product. Consider, for example, a book, which might include the copyrightable expression of the text; a copyrightable index; copyrightable design elements; copyrightable cover design and illustration; and so on (ignoring, for the moment, whether the editorial contribution is itself copyrightable!).
29. Although it's not relevant to the GBS situation, keep in mind that true transformation of the underlying expressive intellectual property (that is, copyright and/or trademark) is a completely different situation. That concerns not antitrust issues, but freedom-of-speech issues (see, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) — the 2Live Crew case) that make this even more of a headache.

Google Book Search Settlement

Settlement 2.0: The Discordant Melody Remains the Same

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

Version 2.0 of the settlement has arrived. It's as much of a monster as was its predecessor, and really does very little to actually address the concerns that purportedly led to the changes. If I was actually a member of the Authors['] Guild — I'm eligible, but have chosen not to join — <SARCASM> I'd seriously think of using my vast royalty earnings and endless free time <SARCASM> to start a recall movement against the officers and Executive Director for their selfish, self-centered, self-aggrandizing management of this matter that is, on its face and in depth, inconsistent with the stated purposes of the organization. And their little dogs, too.

Before diving too far into what the changes do, though, let's take a quick look at what has remained unchanged:

• Representation for both classes remains inadequate. Specific comments from the Executive Director of the AG and from a representative of the publishers have made very clear that they will not accept any additional proposed representatives or parties at the bargaining table.
• Contrary to binding procedural authority (Shutt and Hansberry, among others), this settlement purports to bind the copyright owners of orphan works... when, by definition of "orphan works," those parties cannot be found, so there is no way to ensure notice.
• Contrary to that same binding procedural authority, albeit less strongly, the "opt out" mechanism remains inimical to the Copyright Act, which contains no means of disclaiming a copyright. In short, this settlement seeks to accomplish by litigation a "solution" that has been explicitly rejected in the Copyright Act of 1976, and implicitly rejected in the 1909 Act.²³
• The revisions do little or nothing to actually deal with the antitrust problems.
• The revisions do nothing whatsoever to acknowledge the Rosetta Books problem, and in fact attempt to silently reverse Rosetta Books in slightly more-obvious fashion.
• The same proposed class counsel are operating under the same inept complaints — complaints that reflect both factual and legal misunderstanding of what the (as originally named) Google Library Project actually did.
• The settlement still accomplishes a shift of administrative burden from the reuser to the copyright holder.²⁴

There is, however, one significant change in Version 2.0. It's a change that I must admire for its chutzpah and subtle creation of an evil overlord: The imposition of a Trusteeship²⁵ on the Authors' Registry (Revised Settlement §§ 3.2–.3, 3.10, 4.2, 4.5, 4.7, and 6.2–.3). On the one hand, on its surface this would insulate decisions from self-interest by the Authors'-Guild-appointed Board of Directors; on the other hand — and the hand far more likely to become an issue in the event of any dispute — the structure of the law of fiduciaries, along with a few subtle wording changes, would essentially insulate any decision made by the Trustee from challenge by anyone. Ever.

Absent trustee status, decisions by the Authors' Registry would be reviewed for gross negligence ("should have known" or "reckless disregard of facts or duties"), which is a stiff standard that is difficult to prevail upon. Under trustee status, though, the same decisions would be reviewed under the "abuse of discretion" standard — a far more difficult standard to meet for someone who is objecting to a decision, and a particularly inappropriate standard for dealing with a situation that is making things up as it goes along by means of a captively appointed trustee. It's one thing to say that the person(s) stuck making decisions on disputed "unclaimed works" status shouldn't be personally liable; that can be covered with an appropriate, and quite probably inexpensive, insurance rider. It's another thing entirely to procedurally block an aggrieved complainant from any realistic avenue for relief. Now throw in the vaguely specified arbitration system — and whether an opt-out settlement can impose arbitration on silent nonobjectors is at best dubious²⁶ — and things get interesting. Not the good kind of interesting, either.

Next time: A dive into antitrust law.

---

23. One could argue that "failure to register or renew" was a way to disclaim the copyright under the 1909 Act. In a sense, that's true by effect; the problem is that once registered/renewed, the only way to formally "abandon" the copyright was the purposeful act of publishing without marking... and that was inconsistent with the Berne and Universal Copyright Conventions even then, and further was abrogated when the US acceded to the Berne Convention in 1988.
24. Not to be too much of a broken record, but my article (previously cited), which I have chosen to post for free access at SSRN (PDF), demonstrates the cost-shifting aspect.
25. The Revised Settlement calls this officer an "Unclaimed Works Fiduciary" (Rev. S. § 6.2(b)(iii)). That name, aside from being a mouthful, is actually inaccurate; the designated officer's role extends far beyond mere "fiduciary" responsibility for unclaimed works to actual representation of the owners of the "unclaimed works." Calling a rabbit a smeerp does not change the fact that it's a rabbit; this is a Trustee in all but name. And, for simplicity and accuracy, that's what I'm going to call this officer the rest of the way.
26. See, e.g., the Federal Arbitration Act, 9 U.S.C. § 2 (requiring written agreement to arbitrate that satisfies the law of contract). Even the grossly overreaching decisions that found hidden arbitration provisions enforceable (yes, I'm thinking of you, Chief Judge Easterbrook) were based upon a contract formed by voluntary action and commercial relationships; imposing arbitration through failure to object to the imposition of a new commercial relationship has not, to my knowledge, been upheld anywhere.

GBS: Rearranging the Deck Chairs on the Titanic

Just a quick status update: The parties-plaintiff did file their "revised" settlement documents this evening. I've got downloaded copies off of the filing system, and I'll point to them from a publicly accessible site when they're available and verified.

I'm not impressed. (In fact, I'm insulted... but that shouldn't be much of a surprise.) It took two months to change 3% of the settlement, and some of the changes made things worse. I'll blather on at greater length over the next few days.

The bottom line is that in concept, in detail, and in procedure the settlement remains unacceptable and reflects poorly upon the fulfillment of counsel's duties to the absent class members. And that's the nicest thing I've got to say about it...

It's a Job, Not an Adventure

In this time of job losses and economic hardship, it's especially frustrating to see people who have jobs not doing them.

• One of the biggest problems with so-called "tort reform" is that it's so one-sided: It focuses exclusively on "frivolous" claims without considering frivolous defenses and/or unfair defense tactics. One (and only one) recent counterexample from Connecticut is notable for the bar's absolute refusal to do its job:

  Mark Dubois, the state's chief disciplinary counsel, is familiar with the case, but said no grievance has been filed against [the defense counsel]. "Sometimes judges just like to handle these things themselves," Dubois said.

  Bluntly, that's exactly wrong. If the purpose of the ethics rules really is, or includes, protection of the public, the fact that a judge found it necessary to go on record in litigation involving actual parties with sanctions that the judge was not obligated to issue, for reasons that the judge was not obligated to cite, mandates at minimum a parallel proceeding by the regulatory authorities in order to protect the public (and the profession itself), even if the proceeding ultimately concludes that what that judge did was a sufficient response. What is worse is that this does not appear to be an isolated instance for that particular lawyer; it certainly isn't for that particular insurance carrier. Instead, just about the only way that defense counsel can get sanctioned by bar regulators is by mismanagement of client funds, or being stupid enough to get caught actually destroying evidence — in short, actual dishonesty; and that's not just in Connecticut, either.

• Sarah Weinman describes monopsonistic distortion of copyright's goals and how it is affecting at least one fictionwriter. The unstated, but key, point is this: So long as the distribution system remains monopsonistic (at multiple levels), there is no chance of breaking that cycle... and it presents "entry barriers" large enough to pass the DoJ's guidelines for antitrust scrutiny, if only the DoJ's grasp of fundamental mathematics was better. And the less smoke spread about technology making literary agents obsolete — when unfair business practices and monopolistic/monopsonistic behavior led to the development of the literary agent in the first place, and Amazon isn't exactly a paragon of fair business practices — the better. But what's a little antiintellectual protectionism between friends?

  Yes, those links really are connected. You shouldn't have to think too hard to see the connection: Mercantilism. It's little wonder that transactions in intellectual property based upon a mercantilist model have trouble dealing with a world that has embraced (PDF) comparative advantage...

• Over at Madisonian, Professor Desai attempts to wrestle with the concept of "out of print" in the context of the GBS. It's certainly a worthwhile piece to read... even if it doesn't wrestle with the deeper problem of determining when a work is out of print under publishing industry custom, let alone what that means for authors who have received reversions; or not received reversions for works that are nonetheless out of print; or whose publishers have gone out of business without formally reverting; or... you get the idea. And that's probably a good thing (I'll just whisper Rosetta Books (PDF) and let you ponder how that decision makes the inappropriateness of the GBS settlement even more obvious, because I have no shame and take vicarious glee in your impending headache).
• Oral argument before the Supreme Court on Monday in a patent case has some interesting implications for authors. In re Bilski concerns the patentability of "business methods," and presents an opportunity for the Supreme Court to reverse one or both of some bad decisions from a decade ago (the State Street Bank duology)... and, short of that, to at least limit patents to what patents are understood to cover. At a deeper level, though, Bilski asks a question in pure logic, based upon a premise we are not allowed to question: Given that we cannot rewrite the IP Clause of the Constitution, must all forms of intellectual property fall under the same rubric, the same reasoning, and the same evaluation of what will motivate "Progress"? If the Court does its job — and the oral argument indicates that it intends to do so — it will answer a resounding "not only no, but hell no!"

  One might formalistically say "But this is an illusory question, as some intellectual property is already outside of the IP Clause: Trademark arises under the Commerce Clause." In one sense, that's true, but it's a formalistic distinction without a difference. Both the IP Clause and trademark law are founded upon purely economic motivation as being both necessary and sufficient for "Progress in the Useful Arts and sciences" to occur. And, in a sense, this is where Bilski comes in: Does a business method pointed purely at an economic consequence constitute such progress? I think the answer is plainly "no," which in turn demonstrates why (without even parsing the statute) the proposed "plot patent" is fundamentally invalid. Parsing the statute and application, of course, makes that even more obvious.

  It is precisely this deep question, though, that is ultimately at issue in Bilski: What does "Progress" mean? Does delineating an opportunity for economic profit (in the mixed-up world of business litigation, remember that "avoiding a loss" constitutes a form of "profit") result in "Progress"... and if so, is that "Progress" in the "Useful Arts and sciences"? And if not, could Congress nonetheless determine, under its Commerce Clause powers, that tying such a specific opportunity/method into its implementation of the IP Clause is a good thing? Fortunately, Bilski does not need to answer this last question, because it's not before the Court: Reading the Patent Act (in particular § 100(b), as Professor Risch explains) demonstrates that Congress has not (at least not yet) so asserted. Someone will have to do this job eventually, and sooner would be better than later; however, Bilski itself is too soon, so (unlike the other items on this sausage platter) failing to state an answer will not reflect the Court not doing its job.

And happy Veterans' Day to my fellow veterans. I'm now off to harass local businesses about their inept flag display on Veterans' Day.

GBS: No Revised Settlement Today

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

As Gomer Pyle might have said, "Surprise! Surprise! Surprise!" The "parties" in the GBS litigation won't have their "revised" settlement ready for filing today (09 November 2009), and have asked permission to actually file it on Friday, 13 November 2009. Dammit, that destroys my little parody of the ode to the Guy. (It'll still result in "Pennies for the Author," though.)

Interestingly — or not, if you're not quite as much of a civil procedure geek as I am — the letter from the AG's counsel says that they met with the Department of Justice last Friday concerning the settlement. That they couldn't get it ready over the weekend implies that the DoJ wasn't yet satisfied...

On a more relieving note, the "parties" assert that they'll move to extend the claim period (for those who haven't opted out and want to claim particular works) from 05 January 2010 to 05 June 2010. There is no motion reflected in the docket yet, so you shouldn't absolutely count on this extension; however, I anticipate that any such motion would be granted, after Judge Chin looks at the revised settlement, and he may find that an even greater extension is appropriate.

Tearing Down Walls and Building New Ones

Another twentieth anniversary...

• As anyone who knows me has heard me complain about at length, I despise Apple. It's not that the technology is inherently bad, but that arrogance of "Steve knows best" that comes through the closed architecture, the inability to adapt products easily to one's own needs (e.g., the continued use of Safari as the default browser... when it is expressly incompatible with the major legal, banking, and government documents systems), and the pricing structure. But, that said, some of the products and accessories really are interesting, which leads to the ability to adapt one's iPhone to help your Klingon language proficiency (that sort of acts as a counterexample to my second gripe, but not in a good way!).
• Twenty years ago, I got to see this wall come down. The contrast with the nearly simultaneous rise of a different wall in the American consciousness bears more than a little bit of scrutiny, as does the real meaning (that is, considering its actual context) of Robert Frost's "good fences make good neighbors":

  Before I built a wall I'd ask to know
  What I was walling in or walling out,
  And to whom I was like to give offence.

• In a not-too-startling display of abject ignorance, James Surowiecki blathers at The New Yorker that Wal*Mart's price-cutting on certain books is not predatory pricing because "the company's entire history has been one of perpetual cost-cutting, even after it's become the country's dominant retailer" — incorrectly assuming, as do most commentators, that Wal*Mart represents a single market. If one looks over time at various aspects of Wal*Mart's pricing policies by store segment, one will discover that the entire history has not been one of "perpetual cost-cutting": Compare, for example, relative tire prices in 1986, 1996, and 2006 to its actual competitors, and then ponder the identity of those competitors. One can easily argue that Wal*Mart drove potential "one-stop shopping" competitors out of tires — and, indeed, largely out of automotive — in a predatory manner. The same analysis applies across the rest of the store, although perhaps not so obviously. It's just a different information firewall...
• Meanwhile, the UK's libel laws continue to build an information and perspective wall around that nation for the benefit of its entrenched uppper classes (who, as a structural matter, are the ultimate beneficiaries of the defamation wall). I suppose it could be worse: Sometimes even social theory — which can hardly be considered "defamatory" by anyone who understands the concept — is equally threatening to those in power, and gets excluded by much the same methods.
• Tearing down walls to the past may not benefit everyone, particularly "new and emerging" music acts. <SARCASM> This assumes, of course, that the "new and emerging" acts deserve to "emerge" in the first place if they can't compete with low-resolution/audio quality pieces from the past. And the putative author of that article sort of makes that point for me with his own musical past. <SARCASM>
• Later today, I'll be dealing with the Google Book Search wall, in more than one respect: Both the ineffable arrogance and idiocy of the designated parties and the silliness of the settlement structure they've chosen. (Update: I guess it'll be Friday the Thirteenth — see the item posted later today.) On the other hand, this afternoon the Supreme Court will be trying desperately to determine whether to erect another wall: What qualifies as proper subject matter for a patent? This is a vastly more important question than even the fundamental-definition-of-justice issues concerning juvenile life sentences being argued this morning, for a very simple reason: It requires, at a principled level, answering the question "Is there any kind of thought that is inherently not claimable as intellectual property? And, if so, is there a gate in the wall?"

  Bilski and its brethren directly concern the so-called "business method" patent — whether, that is, a business method (in this instance, a procedure for hedging risk against changing commodity prices that purportedly benefits businesses)¹ qualifies for patent protection. Ultimately, the problem is this: If the concept in question is indeed "Useful," does it require a grant of "exclusive Rights for limited Times" to motivate those who might personally benefit from the concept to "advance the Useful arts"? Or, more directly: If a "business method" can be practiced for profit, does exclusivity operate to the advantage of "business" as a whole, or only to the "inventors" who can exclude others from practicing that method? Those of us with particularly strange grasps of the concept of "intellectual property" will immediately think of a concept from copyright: The information/expression distinction. To my admittedly strange way of thinking, consistency across the realm of intellectual property counsels rejection of the Bilski patent because it is "mere information," and not a unique, objectively verifiable expression that retains value for the expression per se rather than some summary of it (in the way that Frost's poem linked above retains value beyond the out-of-context quotation of one line that most people know it for). Thus, the Court should reject the Bilski patent, both in particular and on principle; the hard part will be coming up with a coherent rationale for doing so that can withstand both intellectual and economic pressure. And that should sound very much like the Google Book Search problem...

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1. Of course, in a "process" sense this merely represents a patent on Maxwell's Demon... because the whole point of an orderly market in commodities is that it supposedly reaches equilibrium quickly, and hedging — by definition — is an attempt to avoid the consequences of market equilibrium. In short, one can argue that the Bilski patent is an attempt to defeat the laws of nature akin to a perpetual-motion device. Thus, this may turn out to be a less than optimal fact pattern for a sensible decision. There's nothing new in that; so was Brown v. Topeka Board of Education, and so was Gideon v. Wainwright. The Court doesn't operate in a laboratory-clean world of carefully designed experimental results... which is, itself, a rather ironic comment on the Bilski patent.

Feuerwerken

Next Monday, perhaps we'll be chanting

Remember, remember, the ninth of November
The Authors Guild/Google Books plot . . .

as we try to slog through a 350-plus-page "amended settlement agreement." But, for today, I'll just turn toward the AG's offices in New York and implore them to go Fawkes themselves.

• I can almost hear the ghosts of the buggy-whip manufacturers screaming now: Nikki Finke uncritically screams that "MPAA BETRAYS THEATERS: Asks FCC To Let Studios Transmit First-Run Films Directly To Consumers." After the miserable experiences I've had with theaters of late, they bloody well deserve counter-betrayal; they betrayed their customers years ago.
• Just seen at the library: The Veganomicon: The Ultimate Vegan Cookbook. I suppose it should be shelved near "To Serve Man" and The Soylent Green Companion...
• Cheebuggah, cheebuggah, Icanhascheezburger. Pepsi, no Coke. And trademark infringement. At least it's not a mislabelled motorized recliner. Or toy train (PDF) (yes, parents, you may run and hide now).
• I was going to summarize this in the context of the previous item, but Professor Rebecca Tushnet already did. And it's an important decision, even if it does concern one of the six sources of all that is evil in college football (the other five being Auburn, Notre Dame, Ohio State, Oklahoma, and USC).
• Professor (now Google's Chief Copyright Counsel) Patry remarks on writing the book some audience members claim they wanted, not the book the author actually wrote. There's quite a bit of food for thought in there for fiction writers, and particularly for literaturic artistes (and yes, that misbegotten phrase is just as sarcastic, just as condescending, and just as demeaning as it sounds). Of course, they'll pass it up because — since it relates to a reality not their own — it's not in their diet...

Bumper Bambi

Still on the road, so these are probably roadkill sausage links.

• Language learning, language diversity, and the difficult determination of whether the Tower of Babel is a good thing.
• Walter Laqueur argues that Russia's fate is struggle with imaginary demons, like Islam. It is perhaps easier to accuse a different culture of this problem; just think about the American "imaginary demon" of the vociferous, nonassimilated Other (whether immigrants, women, gays, whatever).
• Sorry, Herr Scalzi, but the problem isn't "winning" by the exceptional; by this logic, the near-canonization of Roberto Clemente ended all problems of acceptance for both the melaninically enhanced and Hispanic immigrants. The point that in purely commercial terms there seems to be less "prejudice" toward speculative fiction is, indeed valid; the problem is that ignoring the disdain of what Scalzi refers to as "acceptance... from other literature geeks, whom they feel have excluded them from their sekkrit lit geek clubs" leads not to "winning" and "losing", but to isolated populations... which, in the long run, is not "winning" by any rational measure.

  And then there's the problem that the other literature geeks are largely responsible to teaching all literature geeks. Perhaps taking it out of literature and putting it into engineering will be illuminating. Speaking from personal experience, it's as if chemical engineers and chemists studied chemical equilibrium and thermodynamics using completely different, largely incompatible paradigms — not just the idiosyncratic emphases of the instructors, but even the notation and coverage of foundational courses.^* Now mix in the increasing recognition by biologists that this chemical equilibrium stuff might have some important implications for cell biology, and ask if we'd have had different results in the study of the cell if the leading biologists had consulted chemical engineers in the mid-1980s than chemists...

• And, I suppose, it's time for a more substantive — and procedural! — note "inspired" by a semiheckler at the Google Book Search panel at WFC on Thursday. After a panelist (not me) stated that Google's intent in establishing the GBS/GLP scan-index-retrieve system was improper, an audience member — proclaiming himself to be a former Google employee — objected that the panelist could not possibly ascribe intent to the corporation. And there is the problem. As I pointed out in reply, the panelist was not accusing each employee at Google of ill intent; he was, instead, relying upon corporate statements entered in the record (and other public corporate statements) concerning the corporation's intent. Basically, the problem is this: Corporate intent is a one-way street. That is, statements of ill intent from a corporate officer can be imputed to the corporation; however, statements of ill intent by the corporation cannot — without more specific ratification — be imputed to individual employees, or often individual officers and directors.

  What I'm really saying here is this: Accusing "Google" of ill intent is not an accusation that each and every employee of Google (all the way down to the janitor) shares that intent. So my fellow geeks and nerds need to get over it; most of the ire of the creative community is aimed at the businesscreatures in control of the corporation, not at the infotechies. Most; there's some spillover, and some of that spillover is even deserved. But that's for another time.

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^* As anyone with a degree in either chemistry or chemical engineering knows, this is — unfortunately — not a hypothetical.