21 June 2010

Fat, Bursting Link Sausages

  • The Economist offers an interesting perspective on the future of BigMusic, in an environment of increasing dominance of digital sales in highly digitally connected nations.
  • Yet more Wiley shenanigans: Wiley claims that its new deal with Apple for e-books is "confidential" and won't disclose whether it's following the "agency model"... which, of course, is completely inconsistent with dealing with its own authors in good faith (and with fair dealing), as this prevents those authors from knowing enough to accurately determine the appropriateness of demanding an audit for e-book royalties. <SARCASM> But no publisher would ever short an author royalties, and especially not on a net-receipts basis, would it? </SARCASM>

    Wiley's position is wrong as a matter of law. Remember, unless a publishing agreement is WFH, it is not a sale: It is a licensing transaction, and licensors are entitled to know the terms of downstream transactions regarding their licensed products to ensure proper accounting and proper treatment of their marks and other license rights.

  • Speaking of "wrong"... Here's an answer to the age-old "How do I keep publishers from stealing my ideas?" from a NY-based publishing attorney that completely misses the mark. The answer provided (numbers added for later reference):

    Q: I read online that this particular publisher is accept[ing] unagented manuscripts. But I'm worried. They're such a big company, what's to stop them from stealing my idea?

    [1]If you are worried about copyright infringement, register your unpublished manuscript with the U.S. Copyright Office. However, the prevailing view is that copyright does not protect basic plots or unadorned ideas. To prove copyright infringement, a copyright owner must prove that the infringer copied protected material. [2]When courts are asked to determine whether infringement has occurred, they must disregard non-copyrightable elements (such as ideas and facts) and compare the copyrightable elements in the works. Unfortunately, no simple rule exists for distinguishing non-copyrightable ideas from their copyrightable expression. [3]If you feel your work has been infringed, contact a copyright attorney. [4]In addition, certain valuable ideas can be protected contractually. However, don't even think about asking a publisher to sign a non-disclosure or confidentiality agreement. Unless you are a major celebrity or political figure, no publisher will sign one.

    Really now. A licensed attorney and "former publishing executive" should bloody well know better, even in an informal answer in an informal forum.

    1. No, do not register an unpublished manuscript barring exceptional circumstances — and a "great idea" does not create those circumstances. Realistically, most editors react badly to pre-registered manuscripts if they see a copyright notice... and the earlier registration can create some difficult problems later if the work changes substantially in the editorial process that will only run up attorney's fees (without, I might add, actually reaching a resolution).

      At least he didn't advocate the so-called "poor-man's copyright" (mailing a copy to one's self) — which is borrowed from patent law, ignores changes in evidence law, and has been useless for copyright purposes for a century.

    2. This is a considerable overstatement, although it does point at the "correct" idea. What courts must do is disregard unoriginal elements. Sometimes "non-copyrightable ideas" in combination create originality — that is, context matters. For example, consider the RSC productions of Hamlet (culminating in Mark Rylance's stage and Kenneth Branagh's film portrayals) — a strikingly "original" production that did not include anything other than "ideas," "facts," and public-domain works. Or, for that matter, consider Pride and Prejudice and Zombies: How much of it consists of "ideas" and "facts"?

      This is a C+ answer at best.

    3. This is actually the second step. The first step is to sit down and actually compare the infringing work to your own... and ask yourself whether calling it "copyright" is really the right thing in any event. Most author belief in infringement does not concern copyright, but unfair competition. The sooner publishers get their heads out of their rectal orifices and admit this, the better.
    4. This is a excessively pessimistic view... and I've been involved with a fair number of transactions that this guy claims would not happen. To name just a few exceptions, consider the whistleblower; the former employee of "a major celebrity or political figure"; the crime victim, or family member of a crime victim; the private instructor in technique; I could go on for quite a while, but for confidentiality issues (and I've been on the Dark Side of the Editorial Desk, heavily involved in the acquisitions process, myself).

      Once again, this results from a too-narrow view of what it takes to "protect" an idea. Many of the "ideas" that authors have arise from invasion of privacy/right of publicity issues; from trade secrets (in the legal sense); and from aspects of unfair competition. In this particular instance, I think the answering lawyer is so focused on the 1909 Copyright Act concepts of "idea" and "scenes à faire" that have (wrongly) been extended to today by the Second Circuit that he has lost sight of what working authors think "ideas" are.

    In short, this is a nearly useless answer.

    Of course, the question wasn't a whole lot better. Part of a lawyer's job — even when answering a "general inquiry" or explaining a "general principle" — is to ensure that the issue(s) are accurately framed and stated. Here's a quick draft of a better (by no means perfect!) response:

    Q: I read online that this particular publisher is accept[ing] unagented manuscripts. But I'm worried. They're such a big company, what's to stop them from stealing my idea?

    Nothing. Publishers don't license (and then sell) "ideas"; they thrive on the expression of ideas. The idea itself, unless it is protectable under a specific legal theory or contract, is fair game for anyone in publishing. I think what you're really asking is this:

    Q: How can I keep a publisher from just taking the good idea(s) out of my manuscript and assigning it/them to another writer without paying me?

    It's really not in your power, or responsibility. Instead, publishing economics will generally do this: It will cost the publisher more to "assign" your idea to another author, in both time and money. (If you don't have substantial previous publishing credits or a really significant platform, the publisher isn't going to be paying you Stephen King/"James Patterson" money in the first place.) Further, publishers have long ago learned that relying upon ideas alone to sell books is a losing bet: The occasional outlying success story is outweighed in the long run by the failures.

    The best protection for your "ideas" is to put them into the best possible manuscript. The closer your manuscript is to "ready for final edit," the less incentive a publisher has to "steal" the ideas. That means that the primary thing you can do to protect your ideas is learn to be a better writer. That also indirectly acts to protect your expression under the Copyright Act: It is in copyright at the moment you put it on paper (or has been since 1978 in the US, anyway), so the closer your manuscript is to "ready to publish," the more risk any publisher would be taking by just stealing the manuscript, editing it, and publishing it under another person's name.

    That said, there are some kinds of "ideas" that will require additional protection... but registering your work in manuscript form with the Copyright Office will probably not provide that protection in the first place. If the manuscript involves original research of factual issues, or a living person's "life story," or the personal perspective of a participant in significant events (such as, but not only, being a "whistleblower"), there's a good chance that the facts themselves are protectable... and that you, as an author, are going to need appropriate advice, preferably from an attorney who specializes in the area or a highly experienced agent, on how to handle any confidentiality issues. If, however, the manuscript merely involves an original juxtaposition of existing ideas, such as Pride and Prejudice and Zombies, the only way to protect the "idea" is to do it so well that the publisher has no incentive to go elsewhere: Any later lawsuit will revolve not around copyright, but around unfair competition, and the only winner(s) will be the lawyer(s).

    One last note: This advice (which is not legal advice for your particular situation; look at the disclaimer in the upper-right corner of the blawg) applies to print publishing. It does not apply to music publishing, or to dramatic work publishing (whether for screen or for stage); although many of the principles remain parallel, there are enough differences that those areas require both different procedures and different advice (same disclaimer).

  • "Serious" composer John Adams discusses the interplay between serious and popular music, among other things. The piece makes excrutiatingly clear that Adams is no ivory-tower musicologist.
  • It's Junk Science Week at the Financial Times. Too bad these proponents of the Dismal Science don't know more science themselves... as some of the items are amusing, but some of them reflect a misunderstanding of the process of scientific research. At least they recognized the problems with some denialist "research" on global warming that consisted of nothing but metastudies by people who don't understand what a metastudy is. Overall, the real problem is the following fallacy:

    X has a science degree/credential

    X is a scientist

    X's conclusions are based upon the scientific method

    to which one need merely say "Lysenko" to refute the entire chain of reasoning: Scientists are people, and therefore fall prone to every human failing.

  • The Supreme Court was busy this morning, as it's June. Still no opinion in Bilski, though. Today's opinions were technical, and indeed procedural, matters.

    Some of that technical/procedural stuff is quite important. For example, in a 6–3 decision, the Court decided that on the facts in the specific matter the "material support for terrorism" statute does not violate the First Amendment (Holder v. Humanitarian Law Project, No. 08–1498). I think this is (narrowly) wrong, and relies far too much on trusting the government to apply it appropriately and fairly. The area, though, is a morass, and a blanket prohibition either way isn't so much unconsitutional as it is unsound policy; there are circumstances in which "material support for terrorism" without engaging in terrorism per se so attacks the foundation of the State that the State is virtually obligated to criminalize it. I would not have worded the underlying statute in that way — but then, neither would any experienced CT/CI analyst who also knows anything about the First Amendment... or about Eugene Debs. That, however, does not make the statute unconstitutional, and I'm not in a position to judge the factual circumstances of this matter. All around, this is a frustrating case that demonstrates the problems with relying upon ideology to answer hard questions: The reasoning in the majority opinion is less than thoroughly convincing.

    Another technical issue — this one much more disturbing — appears in another hypertechnical opinion on arbitration. In Rent-a-Center, West, Inc. v. Jackson, No. 09–497, the Court held (5–4) that victims of unfair arbitration agreements are screwed, procedurally: They must challenge the arbitration clause directly to defeat unfair procedures within the arbitration clause... but other decisions by this Court have made clear that under those circumstances the decision on whether the procedures are, in fact, fair will almost always belong to the arbitrator, so nobody does that. The hint that something is awry here is that Justice Stevens wrote the dissent in an opinion concerning civil procedure: When Justice Stevens has written the dissent on a civil procedure question (not just voted to dissent), he has thus far invariably been right. A careful reading of Justice Scalia's opinion demonstrates that he still believes that there is no such thing as a "contract of adhesion."

    Then there are the civil procedure chestnuts of "standing" and "scope of injunctions." Fortunately, this was probably the easiest case of the day for the Court. In Monsanto v. Geertson Seed Farms, No. 09–475, the Court decided 7–1 (Justice Breyer recused) that (1) both sides did have standing concerning regulatory action regarding certain genetically modified crops, and (2) the District Court screwed up in determining what kind of injunction it could (or could not) issue. The first issue is fairly apparent, and resolves a circuit split in favor of the Ninth Circuit's approach. The second issue is also fairly apparent, and reverses the Ninth Circuit... but looking at the timeline in the matter, the District Court was following circuit guidance that was overturned in the interim, so I'm not sure this counts as even "half a loss" for the Ninth Circuit. For whatever value that judgment has.

    Finally, there's the enforceability of a choice of forum clause in the face of a statute that may, or may not, apply. In another 6–3 opinion, the Court held that the Carmack Amendment does not overrule a choice-of-forum clause found in a mixed-transportation-mode bill of lading signed in Japan and selecting Japan to hear disputes (Kawasaki v. Regal-Beloit Corp., No. 08–1553). In a 6–3 decision by Justice Kennedy (Justice Sotomayor wrote for herself and Justices Ginsburg and Stevens in dissent), the Court reached a predictable result: That a clause keeping a matter out of the US courts was enforceable. I think the dissent has slightly the better of the argument here, particularly as the underlying insurance memes in the matter (maritime v. rail transport) are completely incompatible and will eventually result in the "victim" getting thrown out of court (in Japan) on its ear... but if one accepts that the Court has been desperately trying to close the door the courthouse for about thirty years now, in the face of waves of litigation that the federal court system just can't handle due to quantity alone, this is the result consistent with that movement. It may not be correct, but it was predictable (especially since Justice Kennedy has been one of the most polite — but nonetheless staunch — advocates of the docket-control meme)!