11 November 2009

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.