13 April 2010


Some interrelated musings this morning, mostly inspired by not-quite-breaking news:

  • Pirated goods shock horror: It's not as simple as anyone claims. Gee, you mean that conclusions that a sixth-grader could have drawn from the history of counterfeit silverware in London's East End in the eighteenth century might continue to have some validity for the internet piracy debate? And that antitrust considerations are not irrelevant (see pages 11–12, 14–15, and 22 of the full report, albeit without the "a" word)? The key point, though, is that the data that has been thrown about is unreliable.

    For example, if a consumer pays the full retail price for a fake movie thinking that it is the genuine good, an assumption can be made that a legitimate copy would have been bought in the absence of the fake product, representing a one-to-one substitution rate. However, this one-to-one substitution rate requires three important conditions: (1) the fake good is almost identical in quality to the genuine one; (2) the consumer is paying full retail price for the fake product; and (3) the consumer is not aware he is purchasing a counterfeit product. When some of these conditions are not met (e.g., the consumer paid a significantly lower price for the counterfeit), the likelihood that the consumer would have purchased the genuine product at full price is not clear.

    Intellectual Property: Observations on Efforts to Quantify the Economic Effects of Counterfeit and Pirated Goods (GAO Report 10-423) at 17. <SARCASM> But nobody would ever attempt to manipulate public debate by making untenable, unprovable assumptions and then asserting them as fact. That would be like, well, Lehman Brothers. But surely those problems — which seem tailored to physical goods like sneakers and automobile parts — don't influence our trustworthy and reliable film industry, do they? </SARCASM>

    Another example of the use of surveys is the study by the Motion Picture Association, which relied on a consumer survey conducted in several countries. This study found that U.S. motion picture studios lost $6.1 billion to piracy in 2005. It is difficult, based on the information provided in the study, to determine how the authors handled key assumptions such as substitution rates and extrapolation from the survey sample to the broader population.

    Id. at 21–22 (note omitted). I guess not.

    My point is that we can't have a non-self-determined debate on this — and ask ourselves just how much corruption is a tolerable amount of corruption — when even the data that we're using as a foundation for the debate cannot be trusted because the data-gathering method was skewed to make a point, not to understand. In a way, this is just like modern partisan politics... which shouldn't really surprise anyone, as modern partisan politics is a really, really big business.

  • If TV is a cultural wasteland filled with inappropriate metaphors and intellectual nonsense, what does it say that TV might be better than film now... or that the article so proclaiming came from a publication that is part of a media empire that includes a cable-TV station, but no film studio? Or that there are two competing Big Six publishers that own both?
  • Oh, by the way, the Pulitzer Prizes were announced. Congratulations to the honorees. But: Y'all might consider that in the context of the two preceding items... and puzzle over the strange absence of a Pulitzer Prize for Fiction in 1974... or even which work won for drama this year. The contrast with the shortlist (finalists) for the Orange Prize is hard to miss. If you're going to have a juried award, you simply don't give a board of directors the power to issue a judgment notwithstanding the jury's verdict: For that way lies madness.

    Of course, I'm making connections between awards of "single best" in the arts that are made far, far too soon after the close of the "eligibility period," so I'm already wallowing in madness.

  • Fortunately, the Third Circuit has agreed to rehear en banc (sitting as an entire court, not in panels of three judges) the inconsistent opinions in Layshock and J.S.. These decisions went opposite directions on whether an off-campus parody/criticism of a school administrator by a student via social networking sites is properly a matter for school discipline. Unfortunately, neither opinion grapples with the underlying question, nor — due to the limited jurisdiction in question — can they. Ultimately, both cases come down to whether a student can question the acts and character of a person appointed as an authority over that student with no realistic input into that decision by either the student or his/her parents. That is, this is as much about the legitimacy and reach of authority as it is about criticism of that authority. That should sound more than a little bit like the current problems with the chain of authority within the Catholic Church (and particularly for its female members); and, for that matter, more than a little bit like the historical problems with the chain of authority in Tinker, Gobitis, and Barnette. I don't pretend that I have the answer; I can state, though, that the answers typically offered are bogus.

    And yes, this should matter a great deal to authors... especially those with, say, jobs in education; or children in education; or who give a rat's ass about censorship of their work, and in particular about courtesy imposed by authority and how that relates to the First Amendment.

  • Jay Lake is having trouble deciding what he believes about the not-so-great e-book pricing debate. That's not surprising: As a math major, he sort of expects arguments to have an underlying logic and evidentiary basis, and there's none of that there (see, e.g., the first bullet point above...). The money quote, though, is this:

    Note, please, before you comment, that I am not making an argument for any particular price point on ebooks. I am also increasingly coming to favor the idea of bundle pricing, which is in line with my view of books as licenses rather than products. I think ebooks should be cheap, and possibly free if promotional considerations indicate. But that’s a decision for my publishers to make as part of their marketing process, not a natural law of information, nor an entitlement of the reader.

    I hate to break the news to the publishing industries (note the plural), but Jay is vastly in advance of you in this struggle, and you have no excuse: A third of a century ago, the legal authority behind your business changed inherently and irrevocably to a license from a sale, and you haven't managed to figure that out yet. The "sale" meme pervades your author-publisher contracts, your publisher-to-reader distribution channels, and your treatment of both authors and readers. That New York law treats purchasers better than it does licensees probably explains a great deal of your reluctance to change your meme to correspond with something approaching reality.