31 January 2010

GBS Musings

Tangent: AmazonFail (version 3.21)

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

Depending on how one counts, this is either the second or third major AmazonFail arising from egotistical — and ultimately stupid and self-defeating — mass delistings of material by Amazon. A pox on all their houses; although Amazon bears the most blame for this, Macmillan is hardly blame-free.

Let's get the Macmillan problem out of the way first, because understanding it sheds an awful lot of light on other issues. Andrew Wheeler offers a useful introduction that, unfortunately, doesn't go far enough in assigning responsibility. First, one should note that Macmillan is willfully and misleadingly mislabelling its "new model"; leaving aside that it isn't at all new, it is not an agency model. It is, instead, a fewer-layers version of the present book retailing model, which is not a sales model: Instead, the "new" model is a single-layer consignment instead of a multilayer consignment. This does have some significant legal implications, particularly for taxation purposes and timing of payments... but, as important as those are, they are ultimately less important than the industry's refusal to accept that the Copyright Act of 1976 and the Bankruptcy Code of 1978 operating together fundamentally changed the legal nature of the author-publisher relationship.

Under the older law (the 1909 Copyright Act and 1898 Bankruptcy Act, respectively), an author-publisher arrangement was inherently a sale: Publication required ownership — even if fleeting — of the entire copyright. This language continues to pervade author-publisher agreements and arrangements, even though the fundamental change from unitary copyright to separable subrights should have resulted in a fundamental rethinking of contracts, economics, and virtually everything else. Combined with the formalized pro-creditor and pro-secured-interest provisions in the Bankruptcy Code, one would expect things to look rather differently, at least by now, thirty-two years after the enabling legal landscape changed irrevocably. Instead, Macmillan's position depends fundamentally on assuming full ownership and control of not just the rights actually transferred in publishing agreements with the authors, but of a full, unrestricted ownership interest in Macmillan's packaging of the author's intellectual property for market. Crucially, Macmillan could not maintain this position without having oligopoly power to exert — and we'll be returning to that shortly.

Nonetheless, most of the blame here goes to Amazon.30 It's actually fallout from a bad Supreme Court decision from a couple of years ago regarding ladies' leather accessories. (Sadly, this is about the closest we're going to get to "leather" in this whole discussion.) In Leegin,31 the Supreme Court overturned a 95-year-old decision holding that resale price maintenance agreements represent a per se antitrust violation, holding instead that they must be judged under the antitrust "rule of reason" doctrine. In practical terms, that means that a plaintiff complaining that a resale price maintenance agreement violates antitrust law can win if, and only if, the plaintiff hires outrageously expensive lawyers, and has a smoking gun, while the defendant hires a bottom-of-the-class graduate of a bottom-of-the-heap law school who never took antitrust law and has never handled an antitrust matter before.32 It doesn't matter for antitrust purposes that Leegin directly concerned only agreements to maintain a minimum price; antitrust law may be a tangled briar patch indeed, but the restriction is on agreements concerning any fashion of price restrictions.

I suppose that's all suitably theoretical and eyeglazing. Just what does it have to do with the Google Book Search settlement? In the simplest possible terms — so that even the legal staff and management at Amazon can understand — it demonstrates the direct antitrust-violating consequences of precisely the same arrangement as the settlement establishes for orphan works and other unclaimed works. Prettying that arrangement up with an illusory trusteeship concerns only the cosmetics and exact mechanism; it does not change the substance. This particular incident (that will, no doubt, be cleared up in a week or less, even if it takes longer than that for a public announcement) demonstrates that oligopoly power over distribution harms consumer choice. That is all that is necessary to state an antitrust claim, Leegin notwithstanding.

Too, this dispute also makes all too clear the oligopoly problem with putting the publisher class and the author class sharing from the same pot of rights. Bluntly, under the 1976 Copyright Act, there is no real question that the publishers' rights are subordinate to those of the authors (excepting, of course, works made for hire... in which the patron/publisher is wrongly defined as the author). If Amazon's and Macmillan's missteps since Friday result in Judge Chin seeing that even more clearly, and therefore severing the two improperly joined lawsuits and torpedoeing the GBS settlement as failing under Rule 23, then perhaps some overriding good can come of this fiasco. Even if all he does is reject the purported dispute resolution mechanism — a mechanism that fails under the Federal Arbitration Act, but that's another story entirely — that will at least slow things down enough for some wiser heads to speak up.

Update, early evening Amazon "blinked" and has backed down. Sort of. The statement that it made both reinforces my disdain for Amazon's legal staff and bats the shuttlecock of knowing and misleading mislabellings back over the net;33 it's Macmillan's turn again. To point at the most obvious example, Macmillan does not have a monopoly — economically or legally — on the particular products in question; its oligopoly power arises from overall market participation, not from the particular products. (As an aside, that's why it's legally suspect.) The only "monopoly" in question is the monopoly granted to the authors through the Copyright Act — and they weren't even consulted. Then Amazon committed yet another antitrust violation by turning this into a boycott action against nonparties to the dispute.

As Laura Anne Gilman (a knowledgeable former editor at Penguin) notes, Amazon's retreat is carefully hidden away, requiring one to actually be paying attention... and persistently misuses many terms with both legal and economic/business meanings. It is just inconceivable that nobody there at Amazon knows what "monopoly" means. OK, maybe not.

  1. I suppose Amazon's legal staff might argue that it's a power relationship with management that's the real problem... but that violates the old rule "do not ascribe to malice that which can be explained by ignorance or stupidity." Jason Stackhouse would probably be the smartest guy on Amazon's legal staff.

    ANDY BELLEFLEUR: It's interestin', because ... um ... this's the only videotape we found in Maudette's apartment.
    JASON STACKHOUSE: Well, I guess that means somebody took 'em all, right? Somebody didn't want you to see them?
    ANDY: Or somebody only wanted us to find this one? Because it supposedly clears him of a crime that maybe he came back later to commit?
    JASON (at first nods — then laughs softly): Aw ... come on, Andy. I'm not that smart!

    True Blood 1.02 ("First Taste") I hold Amazon's in-house legal staff in lower than minimal high professional regard; I've had too many dealings with them. And remember, y'all, if you decide this is defamatory, I can defend with the contents of those past dealings... and that might prove far, far more damaging.

  2. Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877 (2007), overruling Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373 (1911).
  3. I do need to dispose of one comparison that some others are making. This may bear some superficial resemblance to disputes between cable companies and content providers, but one must recall that those are regulated monopolies... and there's nothing "regulated" about publishing whatsoever. Further, the regulation extends to actual pricing terms to customers.
  4. See note 30. Someone might try to excuse the legal staff by claiming that Amazon's over-the-weekend statement was made by the PR staff without vetting by the legal staff, so the legal staff shouldn't be blamed for legal inaccuracies contained in the statement. It's one thing to make such a claim for outside counsel; it's another entirely for in-house counsel, and it reflects poorly upon their performance of their professional duties in-house when this sort of thing appears to be routine — because it demonstrates pretty conclusively that the legal staff is not engaging with management.

29 January 2010

GBS Update

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

Just a quick update on the fun and games: Yesterday (28 January) was the deadline for objecting to or opting out of the GBS Amended Settlement. I've had endless microseconds of amusement reading the submissions this morning, which largely track what I've been complaining about since the lawsuit was first filed.

The essential problem underlying this entire mess can be summed up in one word: Ego.

  • Google's egotistical assumption that — contrary to two thousand years of history in the West — it could ask forgiveness rather than get permission for a misuse of someone else's intellectual property, and expect to get away with it.
  • Google's egotistical assumption that because its motto is "Don't Be Evil," it isn't... neglecting that villains almost never consider themselves evil outside of Bond films and bad comic books.
  • The Authors['] Guild's egotistical assumption that it represents all authors.
  • The Authors['] Guild's egotistical assumption that it even understood copyright law.
  • The University of Michigan's egotistical assumption that, as a "library," it has the right to do anything it wants with copies that are in its collection... presuming that it gets a piece of the action.
  • The participating publishing companies' egotistical assumption that they control any of the rights at issue for orphan works, for works that have gone out of print, and/or for works under old contracts that don't explicitly transfer electronic rights.
  • The settling lawyers' egotistical assumption that they understood the mechanics of class-action settlements.
  • Just about every commercial participant's egotistical assumption that it's about money.
  • Just about every submitter's egotistical assumption that he/she/they could write as well, or as clearly, on these complex issues as did Ursula Le Guin.

There's Too Much Confusion Here

Well, I can't get no relief (streaming audio)

  • Sarah Weinman offers a most cogent — and interesting — comment on Salinger's demise (which also applies to that of Howard Zinn, let alone that of Louis Auchinloss... remember, although you can't libel the dead, the dead can commit libel). Of course, we have only the family's word that Salinger actually died yesterday; for all we know, he died a year and a half ago, and his body has just been propped up in the front parlor while they waited for 2010 to roll around for precisely the reasons outlined in Weinman's piece!
  • Professor Lessig offers his thoughts on the "revised" GBS settlement, objections and opt-outs to which were due yesterday. As usual, Professor Lessig misunderstands the economics of individual creators involved... but at least he's trying. Meanwhile, the objections are pouring into the overwhelmed court; I'll have an update over the weekend as they start getting posted to official (and unofficial, but more-usable!) repositories. Once again, my silence has been by choice due to possible/perceived conflicts of interest... not because I have nothing to say!
  • Will Anheuser-Busch abandon the Bud Clydesdales? It makes no sense to do so: Transportation and product production in one not-so-neat package! And feeding the monstrous horses barley and water is as close as Bud gets to the Reinheitsgebot.
  • A colleague across the pond wrestles with the problem of form contracts without/with context. Now if only the publishing industry would pay some attention...

27 January 2010

Read Some Gawdawful Rubbish Like You Always Do

Here's a tidy cover for this untidy sausage platter. Consider the potential evil of librarians (HT: Ann Bartow at Madisonian):

And now, lifting the lid:

  • If you speak three languages, you're trilingual; if you speak two languages, you're bilingual; if you speak only one language, you're an American, and "neurally disadvantaged" compared to much of the world. And I say this as one local school district has dropped all languages but English and Spanish... and would drop Spanish if the state didn't require offering a foreign language for accreditation. In this house, between the elder remora and I we can comfortably read newspapers in three different languages and puzzle our way through them in another six or seven with the aid of a dictionary; three of the languages in question are non-Indo-European. I guess, then, that we're "neurally advantaged"... that is, we're nerds, and proud of it. We also avoid making an error warned against by Twain ("The man who does not read good books has no advantage over the man who cannot read them").
  • The UK's new Supreme Court has hit the ground running, and is demonstrating that the war on terrorism does not justify a suicide pact: the suicide bombing of civil liberties in the name of (ineffectively, I might add from professional experience) preventing "support" of terrorist activities by private citizens and organizations. As one judge said, "Even in the face of the threat of international terrorism, the safety of the people is not the supreme law." Now if only our Supreme Court — upon which the UK's version is modelled! — would join the party...

    Meanwhile, the President of Israel addressed the Bundestag (auf deutsch).

  • Meanwhile, back on this side of the pond, the Obama administration is more and more resembling the first season of The West Wing, as Obama is about to give a State of the Union address... hopefully leading up to a "Let Barack Be Barack" moment. Politics may be "the art of the possible"; it may require compromise to actually get something constructive done; but it does not require compromise before one even gets to the bargaining table... especially when, on the evidence of this past year, the "Loyal Opposition" is loyal only to their electoral chances and not to the Constitutition that gives them the opportunity for those electoral chances.
  • The Copyright Office is finally recognizing that some works are published only online, and is changing the deposit rules for online-only publications (PDF). As of 24 February 2010, deposit will not be required at time of registration — only "when requested" by the Register. This will simplify using the eCO online registration system, but may lead to some recordkeeping lapses; copyright holders will need to keep a complete, verifiable record of how the work appeared online.
  • In a shocking, shocking development — even more shocking than finding gambling in Rick's casino — the NYT has discovered that banks are paying their managerial employees at the expense of their shareholders. This is very much a "the devil you know" problem: The only devil that most of the top managers (even the well-intentioned ones!) know is the particular subculture of hedge-enhanced "quant" investing that has become popular since the early 1980s, and they fear that if they don't pay the next management layer down as that layer has come to expect, they'll leave. Then top management will be dealing with two unknowns, not just one: A possibly new paradigm, and implementing that possibly new paradigm with new middle management.

    That should sound a great deal like the problems that the military faced in the 1970s and 1980s with the all-volunteer force. Unfortunately, it also had the effect that we had some pretty damned incompetent top management during the first Gulf War, particularly on the civilian side; middle management (both commissioned and enlisted) took up the slack, but nobody learned that lesson... and the more-extended occupation of Iraq after Gulf War II certainly chewed up things unnecessarily from 2003 to 2006 as the reinstated incompetent civilian managers, and holdover incompetent military managers (many fewer, fortunately), got themselves weeded out — at a much higher price than merely an inflated salary.

  • Speaking of problems with "the devil you know," here's a seemingly unrelated string of stories on the devil of numericizing expression: The OC Register wonders how to make the arts matter in an era of required monetization; the editor of the Grauniad ponders online paywells for news; an author who actually went through the slush pile on the way to agenthood and commercial publication trashes Author Solutions' concept of monetizing the slushpile (HT: GalleyCat); NPR ponders the possible advantages to publishers of competition in e-book distribution platforms (while, of course, there's not one word of the possible advantages to authors); the LA Times continues the "Avatar is only the box-office champ due to inflation" meme, without acknowledging that prior champs didn't have to compete as hard against non-film alternatives (or even other films!); Salon throws a bucket of cold water over the enthusiasm for (author-financed, naturally) book trailers; and PW, in an all-too-typically slanted report, discusses a speech calling for "new business models" at Digital Book World... by the president of Macmillan, of all people (given that Macmillan has just tried to impose a horrendous and ridiculous new erights clause on authors in a new "form contract"). All of these stories concern the same problem that underlies the "excessive pay at banks" item: The impetus to put numbers on the unmeasurable, or at least the not-reliably-and-replicably measured... such as the number of angels that can dance on the head of a pin.
  • Speaking of inept monetization, the DoJ has approved the proposed LiveNation/TicketMaster merger; it's pretty apparent that nobody at the DoJ attends concerts (at least not on their own money)! Meanwhile, there's an impending proxy battle brewing within management of the combined behemoth, which takes me back to the Gulf and Kissinger's lament about the Iran-Iraq war, wondering why they couldn't both lose. Well, in reality, they did: At least the citizens of those nation-states did; the shareholders of the combined LiveNation/TicketMaster entity will; and the public does, too.
  • It's ok to bar prisoners from playing D&D (PDF) but continue to allow them access to the Left Behind books and the bigotry of the 700 Club. <SARCASM> Yeah, I'm thoroughly convinced that there's a legitimate penological interest behind this decision </SARCASM>... although, admittedly, the real question is probably not one that the courts are equipped to handle (and certainly not when Chief Judge Easterbrook is on the panel, if only due to his even-more-restricted-than-one-would-otherwise-believe view of the proper role of courts). It does, however, reflect the anti-nerding-out prejudices of the American public nearly as well as the first sausage on the platter this morning does.

25 January 2010

Lazy Monday Afternoon Sausages

Well, not lazy, precisely; I've actually been doing other stuff while these rotted aged...

  • Late-breaking news bulletin from across the pond: bean-counting managers are ruining the music industry, while at the same time artists/writers/musicians are stacking shelves at the corner store. This isn't exactly a new problem — one of the most-successful members of the Company of Stationers couldn't spell, even by the relaxed standards of the 1630s, and the image of the "starving artist" is a cliché for a reason.
  • A story about authors about a non-author: James Patterson. The reality is that under the "original expression found in the finished work" standard for determining whether Patterson is the author, under the Copyright Act, of those "coauthored" books, he probably isn't (I can't determine that definitively without reviewing working documents; I'm basing that solely upon multiple, agreeing statements of the work method). As ironic as this is, it matches Hollywood perfectly...
  • More of the nonsense of film ratings. Sigh.
  • In order to make a nice MLT sandwich, when the mutton is really lean, it helps to have some macon.
  • GBS Those who have not opted out have only three days to make that decision: the drop-dead date is 28 January 2010. Decide now... or allow Google's shareholder-employed managers to decide for you. Although Google's guiding principle is supposedly "Don't be evil," one must also remember that virtually no villains ever consider themselves evil... and that determining what constitutes evil requires a moral/ethical system in the first place. And meanwhile, Google still hasn't answered or otherwise plead to the Third Amended Complaint (Docket number 782), which is technically a default...

22 January 2010


One large internet sausage link (with bite-sized nuggets in it!) and a few others...

  • One of the main principles of debate is that you need to state the name of your opponent correctly. Apparently, that news has not filtered through to Kevin Weiss, the CEO of Author Solutions (the vanity press operation)... because he'd like to engage in a dialog with the Science Fiction Writers Association regarding purported "publishing" opportunities. I'm sure that he means the Science Fiction and Fantasy Writers of America, Inc. and its (jointly operated with MWA) anti-scam committee Writer Beware.

    Then, too, he might want to try getting his facts straight before he engages in a debate with commercial writers. In no particular order, the video in which he calls for "a direct conversation" with organizations that have objected to his company's deceptive acts and practices makes more than a few verifiable factual errors:

    • Amazon is not "the world's largest book distribution company," and did not "create" the purported $9.99 ceiling for e-books.
    • If you're going to quote the US president of Harper-Collins, try quoting the entire statement. And then stop to think about whether even that soundbite is an accurate representation of anything; after all, there are a helluva lot of mass-market-paperback originals out there that seem quite successful for both authors and publishers that never reach as high as that $9.99 "ceiling." Of course, that also assumes that Harper-Collins takes "a chance" on new writers in hardcover publishing in the first place... and the statistics over the last decade have shown overwhelmingly that it does not, has not, and will not in fact significantly change its practices regarding putting "new writers" into initial hardcover editions anyway.
    • A "traditional" publisher is a vanity press. That's what John Locke and his colleagues were fighting against to create the first modern copyright statute, the Statute of Anne, in 1710. The contemporary commercial publishing industry did not really begin until after the American Revolution, as the courts in the UK struggled over the statutory v. natural-right meme for copyright; and commercial publishing as we know it did not become the dominant model — in the UK, the US, or in Europe; the rest of the world is such a mess that it (arguably) still is not dominant — until the 1870s. So we're comparing a little over a century against a little over a millennium... I'll vote for the millennium as marking "traditional."
    • Regardless of Mr Weiss's own lack of knowledge of the history of his own industry, he engages in another little bit of deception by grouping vanity publishing with commercial publishing and calling that chimera "publishing." The irony that the word "publish" comes to us from Renaissance-era defamation law, and not from any description of books or commercial activity, is beside the point... for the moment. If what he means is that he wants everyone to have equal opportunity to libel anyone else, that's what we've got the Internet to do!
    • Similarly, calling we'll-vanity-publish-your-rejected-slush arrangements between Author Solutions and commercial publishers "partnerships" stretches the meaning of "partnership" well beyond what any reasonable person might expect... or, for that matter, any reasonable lawyer (despite looking, I've found no documentation that these relationships are legally partnerships).

    OK, I hear you. That all sounds rather nitpicky — it's not, but someone will no doubt claim so through failure to understand that context matters — so I'll turn to substance.

    • Author Solutions does nothing to "advance the cause of the[] members" of SFWA, RWA, and MWA "on a daily basis," for the simple reason that Author Solutions is a vanity press... and the membership of SFWA, RWA, and MWA is restricted to commercially published authors. That is, the contribution of a commercial author is limited to intellectual property; it does not include monetary capital, which is a core requirement of the Author Solutions "business model." Mr Weiss, you don't get to repaint reality like that without criticism; I've seen more-honest appeals from televangelists.
    • Claiming that the December 2009 discounting "contest" among Amazon, Wal-Mart, and Target for what even Mr Weiss admits was a "handful" of bestselling hardcovers constitutes an "attack" on "traditional publishing" is more than a bit disingenuous. For one thing, "handful" is probably an overstatement of the number of titles; for another, most of those titles had an extended unit cost to the publishers of around $1.75, and author compensation from sales (which, by the way, appear to have been nonreturnable, so there isn't even a returns issue!) would have been around $2.50, so that "contest" represents at worst a squeeze on margins... for books that were already assured of being profitable. Then, too, there's the myth of "cover price" as having much — if any — relationship to reality...
    • My jaw really hit the floor when Weiss asserted that traditional publishing companies need to change so "they can get back in the mode of thriving as companies and not shrinking." Umm, no. With the two exceptions of Tyndale Press (via Left Behind) and the UK's Bloomsbury (via Harry Potter), virtually all company growth in publishing since the 1950s has been via either mergers and acquisitions or expansion into new subject areas (e.g., computer books). Conversely, the history of publishing companies since the rise of the commercial publishing model in the 1870s has been dominated by failure, not thriving; only during the dominance of the vanity press — and, in particular, the period prior to the final victory of statutory author's copyright in 1789 — did the industry as a whole "thrive as companies" rather than shrink... particularly on a literate-population-adjusted basis.

    Don't try to convince me of your rectitude with deception, half-truths (or ten-percent-truths), and self-serving misstatements; or, to quote Judge Judy, "Don't pee on me and tell me that it's raining."

  • Antisemitism is alive and well in the US, and there's something that all Caucasian-Americans need to remember: Both Jews and Arabs are Semites.
  • As much as I enjoy watching college football, I'm offended by SI's summary of one of the "top 100 high school recruits" lists, as much for what it doesn't contain as anything else. Not one candidate on this list has data concerning:
    • ACT or SAT scores, even in a general sense ("45th-55th percentile")
    • Anticipated program in college (just how many PE and "broadcast communications" majors are not scholarship athletes these days?)
    • Whether they're qualified for admission to the colleges on their respective "wish lists," even generously measured against the 25th percentile
    • Whether they're even going to graduate from high school on time (not a trivial issue for at least a couple of these "blue-chippers" every year)

    And all this in an era in which leading universities are being forced to give faculty members furloughs... yeah, they've really got their priorities straight.

  • Beer as the foundation for agriculture and civilization? Perhaps if they're talking about German beer; not if they mean Bud, or Miller, or anything like that.

21 January 2010

It Really Is Money That Matters

There was a reason that I put that particular video into yesterday's entry: Anticipation of this morning's opinion from the Supreme Court in Citizens United. The Court held (in a 5–4, archly partisan decision) that:

Distinguishing wealthy individuals from corporations based on the latter's special advantages of, e.g., limited liability, does not suffice to allow laws prohibiting speech. It is irrelevant for First Amendment purposes that corporate funds may "have little or no correlation to the public's support for the corporation's political ideas." All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech, and the First Amendment protects the resulting speech. Under the antidistortion rationale, Congress could also ban political speech of media corporations. Although currently exempt from §441b, they accumulate wealth with the help of their corporate form, may have aggregations of wealth, and may express views "hav[ing] little or no correlation to the public's support" for those views. Differential treatment of media corporations and other corporations cannot be squared with the First Amendment, and there is no support for the view that the Amendment's original meaning would permit suppressing media corporations' political speech. Austin interferes with the "open marketplace" of ideas protected by the First Amendment. Its censorship is vast in its reach, suppressing the speech of both for-profit and nonprofit, both small and large, corporations.

Citizens United v. Federal Elections Commission, No. 08–205 (21 Jan 2010) (PDF), slip op. (syllabus at 5; internal citations omitted).

Although much of this summary of the reasoning seems perfectly reasonable, and indeed compelled, it nonetheless depends upon an unstated assumption that itself does not bear much scrutiny. The Court did not ask for the correct reconsideration of precedent; it's not Austin that creates the problem here, but Buckley. As I mentioned a while back, the supplementary question that they should have asked was this:

<hypothetical-question> For the disposition of this case, should the Court overrule Buckley v. Valeo insofar as it holds that expenditures and contribution of money and other resources constitute expressive speech protected by the First Amendment that may not be severely regulated for the express purpose of ensuring free and fair elections? </hypothetical-question>

It makes no difference to the "marketplace of ideas" whether the privileged, largely hereditary position of some market participants comes as a result of land grants from the king or differential wealth-accumulation grants from the elected sovereign; it's still a reification of a hereditary privilege, and therefore equally subject to scrutiny regarding what constitutes free exchange of ideas. It's not the expression that is at issue, but the means to communicate that expression. Although McLuhan may have claimed that "the medium is the massage" (later changed by many to "the medium is the message"), that statement of equivalence fails to acknowledge that context and content are a dynamic equilibrium; so does Buckley, and thus so did the Court this morning in Citizens United.

What I find most disturbing is that this particular error favors nonvoters: Corporations are not "citizens" for purposes of voting (except, perhaps, in Chicago... and the reality of modern campaign finance). Neither, for that matter, are unions. Instead, corporations and unions represent a broad delegation of authority by investors to managers (capital in corporations, labor in unions) who, in turn, are supposed to represent the limited best interests of that delegation. Whether one accepts the "nexus of contracts" model of corporations or uses some other model (and similarly for unions), the key point is that it is a delegation related to a limited interest; and in that sense, the real problem is not the "forced speech" meme that dominates the 180ish pages of opinions in this matter, but the Rawlsian problem of the initial position. In this instance, corporations (and unions) have a preferred initial position, and Citizens United fails to acknowledge that governmental preference for an initial position constitutes an intensely ideological prejudgment... which, in turn, is inconsistent with the values of free speech both explicitly and implicitly at the core of the First Amendment.

I do not claim that this means that one must disfavor corporate/union speech; I only deny that mere expenditure constitutes expressive speech, when mere expenditure (and the accumulation of resources to engage in mere expenditure) has been granted a favored initial position. And, in turn, that's why the artificial distinction requiring use of PACs and other artificial devices to separate expenditures on political speech from general treasuries (of artificial "persons") makes a great deal more sense than does the Court's action this morning. It's not a perfect solution, but it is the least-intrusive means... unless, of course, one denies that the favored initial position has even the capability of distorting the marketplace of ideas. In short, unless one would apply neoclassical microeconomics to a postmodern macroeconomic context without any regard for the problems created by monopoly and oligopoly pricing. To paraphrase Ursula Le Guin, free speech does not consist of handing one party a bullhorn and open venue in a public park while simultaneously allowing a party with inconsistent views to hold forth in a public lavatory near that park... without a bullhorn.

It really is money that matters, and Justice Kennedy could not possibly have made that more explicit without saying so in so many words. Authors — and, in particular, fiction-writers seeking commercial publication — should keep this in mind.

20 January 2010

Frosty's Fate

Our six inches of snow (of course, down on Frat Row they're insisting that it was eight inches) is finally melting off here.

  • Is the false lure of "professionalism" attributable to a truth explained by a professional musician and composer? It's more than money that matters... as my colleagues Charlie Stross and Rich White note: That when immediate monetized return is the only measure, "professionalism" suffers. Want more proof? Tune in at 2335 (2235 Central).
  • The New Yawkah profiles Neil Gaiman without enough acknowledgement of his fiancé... not so much because she's essential to his work (she's rather too recent in his life for that), but because the "story" followed through Gaiman's blog entries says a great deal about both the man and his work.
  • At the meatier end of things — if, that is, "brains" count as "meat" — here's a thought-provoking piece on collaboration and IP rights (that, unfortunately, concentrates far too much on corporate-corporate collaboration problems and far less on the more-common author-author collaboration problems). Then there's the danger of copying yourself (or, worse yet, pirating music online).
  • Over on the literary theory end of things, Jonathan Zasloff properly takes a reviewer to task for misusing "deconstruction"... and doesn't go quite far enough in condemning the particular method properly called "deconstruction" by pointing out its roots in the overinterpretation of certain reactions to logical positivism.
  • More bad news, favoring the source of all a helluva lot of evil in college football: USC defeats USC in trademark battle. I'm waiting now for accusations of dodgy officiating to surface...

19 January 2010

Monday Sans Caffeine

It's still Monday; at least it sure feels like Monday.

  • I'm shocked — shocked, I say — to find credible documentation (and admissions) that the FBI broke even the TRAITOR Act with wiretap requests based on phony terrorism "threats". It almost makes one long for the Hoover era, when at least everybody admitted what was going on... and why. I suppose it beats expiring under "rigorous interrogation" at GITMO, but not by a lot...
  • Also in criminal justice news, we've got a brewing controversy over civil commitment of sex offenders after they complete their criminal sentences. As a thought experiment, ask yourself a parallel question: If we do it for sex offenders, why don't we do it for con artists — a class of criminal for which there is a much richer (and more internally consistent) literature and data set regarding the probability of a given con artist's "persistent inability to conform [his] conduct to social or legal norms"? Snide remarks that the 'net makes it possible for con artists to continue their offenses from inside are not completely irrelevant... nor are these:

    Non Sequitur, 16 Jan 2009

  • A mystery that perhaps only Sherlock Holmes himself could unravel: assertions that the character is (allegedly) still in copyright in the US. It's actually much, much more complex than the article even hints at... and the entire article is founded on theories from cases that may no longer be good law (and haven't been for thirty years).
  • Jo Walton started an interesting thread on the ill-supported concept of "reading protocols" for speculative fiction. Purely by coincidence, my comment (the first one) is merely a recapitulation of a graduate seminar paper. The concept of "reading protocols" is essentially fifteenth-century theology that doesn't stand up to further examination based on what we've since learned — both in the fiction itself and in reading it. Going through the phase of "protocols" (or, as Ms Walton puts — with greater validity, but still missing soundness and a compelling warrant — "reading skillsets") was critically important in developing the basic structure of evaluating speculative fiction. The concept of a "protocol", however, bears even less resemblance to reality than did that of the ether by the time of the Michaelson-Morley experiment.

    The main difficulty with the concept of a "protocol" for reading is that it fails so spectacularly in boundary conditions that it becomes a self-fulfilling prophecy. One of those failures — Le Guin's The Dispossessed — gets some treatment in both the main entry and several of the comments. Others of those failures are, perhaps, more obvious: 1984, The Yiddish Policeman's Union, Galatea 2.2, The Sparrow, and the Hyperion quartet come to mind immediately. To put it another way: Particle physics may be quantized, but literature is not... and understanding and appreciating literature requires use of the full "skillset" (or the full panoply of "protocols") for every work. Some particular skills/protocols can be discarded as unhelpful for particular works... but only after reading them.

    It's long past time to consign the concept of restrictive reading (or writing) protocols to the same dustbin in which chemists have placed the Bohr atom, with its rigid concentric orbits. In both instances, we've developed and assimilated much better descriptions of reality that work at both the boundary conditions and in "simpler" cases, so there really isn't a good reason to continue restricting our view of reality with descriptions that don't work. None of this, of course, is really the "fault" (if "fault" is part of the right metaphor) of nonscholars who continue to use the restrictive reading metaphor; it is, instead, the fault of two groups of really, really bad writers: The literary scholars of the mid-1950s through the early 1990s who were unable to communicate the worthwhile parts of the theories being developed at that time (and successfully communicated the worthless parts to people who twisted them to irrelevant purposes, but that's another story entirely), and education policymakers who imposed numeric measurability upon literature without ever explaining that the only proper measure was a binary skilled/unskilled distinction, and not relative worth within the skilled group. (One look at the stochastic math behind standardized-test scoring scales demonstrates that it's merely a shifting set of binary comparisons.)

    I'm not proposing that Damon Knight and/or Samuel R. Delany be consigned to the dustbin of history — just those particular aspects of their theoretical constructs that have not withstood testing. After all, there's a lot of chemistry that still depends upon, and is well illustrated at the basic level in the laboratory through, the Bohr atom. That the Bohr atom does not work in the real world does not mean it should be discarded as a developmental teaching device. As one scholar explained a quarter of a century ago:

    The rigidity of the monists, however, is as unacceptable as the nihilism of the radical relativists. Neither position can account for the paradox that characterizes the actual practice of [literary scholarship and criticism]: we have legitimate disagreements about what literary works mean, but we are also able to say that some readings are wrong, not simply different.

    Paul B. Armstrong, The Conflict of Interpretations and the Limits of Pluralism, 98 PMLA 341 (1983). The "protocols"/"skillsets" metaphor/interpretation/model is recursively wrong: It produces a great many "wrong" readings (particularly in boundary works) and its rigidity prevents recognition of its very flaws.

15 January 2010

These Sausages Still Quite Grumpy

Surprised? You shouldn't be.

  • Some advance notes on human rights for Dr Martin Luther King's birthday, officially celebrated on Monday 18 January:

    • In his monologue last night, Craig Ferguson smacked Rush Limbaugh — always a soft target on human rights issues — around pretty well... and suggested an eminently reasonable "solution" to the problem Rush has himself created for himself (again). Now if someone would just do the same for Pat Robertson...
    • There's a spat over "privacy" for advocates of restrictions on gay marriage brewing out west that reflects — perhaps more than anything else — the inability of the culturally conservative judiciary to adapt its own culture to that of the society it helps to shape and govern. Linda Greenhouse of the NYT gives her take on the closet sought by gay-marriage opponents, but the implications remind me more of the aphorism about sunlight being the best disinfectant of government than anything else.
    • Russia has ended its opposition to reforms that would extend the reach of the European Court of Human Rights, in a rather surprising and underappreciated shift. Now let's see if the next step — enabling actual and effective enforcement of that court's rulings — goes anywhere...
    • Although this doesn't sound at first like a human rights issue, William Zinsser actually makes some sense (for a change) when he discusses what makes good writing, particularly in non-English-speaking nations. Would that his textbook On Writing Well — of which I have many foul memories from high school and being forced to teach from it at the college level — had itself done a better job of selecting examples of good writing... that remained culturally aware and did not fall into the Anglo-Saxon superiority trap, and did not err in embracing the "there's only one kind of good prose" meme.
  • Publishing piracy shock horror: Another flawed study finds pervasive e-book piracy on the internet (and uses absolutely meaningless methodology in assigning a dollar value... just like the BSA and RIAA have). Like I'm surprised by any of this.
  • If you really want to understand the lunacy involved in the "late-night wars" (referred to by Ferguson in his monologue above), all your really need to do is look at the management structure of NBC — or, more directly, the fact that the management structure was put in place to satisfy French masters at the French media conglomerate partner of General Electric (NBC's actual owner and operator). It's not just about Zucker's patent-pending implementation of "narcissism as corporate management philosophy"; it's about religion, and we all know exactly how far anyone is going to get in resolving that.
  • Being a commercially published author is more than a bit like prostitution: First you've got to be solicited, then you have to put up with the indignity of only being remembered for immediate gratification. And then you get stiffed by the "customer" and ripped off by your pimp, but that's hardly unique to that "profession."
  • An interesting, largely "here's the data, think about it" post on the finances of college athletics at PrawfsBlawg nonetheless fails to grapple with either of the elephants in the room. On one tentacle, many of the highest-demand "supporters" of college athletics do not, in fact, have a distinct connection to the college sports team of their choice (Exhibit A: Supporters of "the Chief" at the University of Illinois are/were by, a distinct majority, neither themselves former athletes at the University of Illinois nor even actual graduates of the University). On another tentacle, the entire meme of intercollegiate competition does not grapple with how its purported benefits trickle down to nonparticipants in intercollegiate athletics. And the less said about the so-called "amateurism" of college athletics (at least in Divisions I and II), the better! (N.B. I'm a proud Division III graduate myself... who also holds a graduate degree from a Division I school.)

12 January 2010

A Very, Very Angry Sausage

  • Professor Ribstein, through no fault or intent of his own (he was making a valid — probably unsound, but valid — point about the relative merit of different pay levels within the legal profession), has really, really pissed me off... through an uncritical quotation from an ignoramus named Erin Smith, who in turn bloviates:

    Until you've done it, you can't underestimate the toll it takes to repeatedly miss your best friend's birthday party, to tell your significant other that you will not be making that flight to visit their parents tomorrow or that you'll need to put off having children until you make partner. They pay you that much money because they expect you to answer every call and email — there's no such thing as a break.

    "Young Associates Are Way Overpaid And Paid Just Right, All At The Same Time" (06 Jan 2010).

    What a load of crap. In the broader context, this is so obviously self-serving that it doesn't deserve much credit... especially from anyone who has ever been a butterbar. Most military officers would be ecstatic if the "toll" of their jobs was limited to missing birthday parties, delaying children, and/or not seeing their in-laws as scheduled (which may, in fact, be a fringe benefit!); and the less said about a true 24/7 responsibility (technically, an officer is always on duty... even when on leave) the better. And for this, a military officer gets the additional privileges of having his/her butt shot at, delivering death notifications to people they knew personally, responding to domestic violence incidents, visiting mangled airmen/soldiers/sailors in the hospital, and sending people into harm's way every day for slightly under $33k1... admittedly, supplemented by "socialized medicine" and the dubious benefits of lots of fashionable high-polyester-content clothing, living in base housing or cheap quasislum apartments near the crappiest schoolbuildings for miles, and shopping per force at stores with all the charm and quality stock of a 1960s-era Piggly Wiggly.

    Keep in mind, too, that Ms Smith's salary "data" — if you'll excuse the gross overstatement of its validity — concerns lawyers whose only concern is commercial: At the big firms, young associates aren't going to be doing civil rights litigation or criminal work, but reviewing documents in commercial transactions and litigation. That's not to say that those tasks are meaningless or worthless; it's only to point out the differing stakes. OK, so the lawyer necessarily has a doctoral degree (these days), while the lieutenant/ensign necessarily has only a bachelor's degree (plus more jobskill-based training than most lawyers get in their first three years of practice, but that's an argument for another time), although that lieutenant or ensign will almost certainly earn the equivalent of an MBA (or, occasionally, a real master's degree) before the six-year point. If "education level" mattered, nurses would make more than plumbers... or, more to the point, at least earn equivalent to first-year stock traders. My point isn't that "education level" doesn't matter; it is that it does not explain anything in this context.

    Maybe, though, this is inevitable for a profession that actively discourages real-world experience, and in particular public service, with the structure of its training and admissions programs and the collective identity of its instructors and leaders (name an ABA President or endowed faculty chair who did not go directly, or almost directly, from high school to undergrad to law school to civilian practice). That doesn't mean I have to like it; in that sense, I suppose I might as well shut up and get on with it, having known what I was getting into. (Yep, I was an officer first, who happened to have Certain Assigned Tasks — not a flyboy wearing a uniform.) Shutting up and soldiering will not reduce the insult... or the offense at sheer ignorance.

    Pay parity for military officers with their purely commercial counterparts isn't going to happen (and there are solid, historical reasons that such parity would be a bad idea for a representative democracy anyway). The self-aggrandizing bullshit spewed forth in support of some aspects of the differential, though, reflects a kind of ignorance of reality that we'd reject instantly in a bad sitcom. Every job — and, in particular, every profession — has a human toll that is not immediately apparent from the job/profession title. But don't point at your stubbed toe receiving gold-plated private treatment (at your convenience) while some beneath-your-notice platoon leader is in triage awaiting the word on whether her IED-mangled leg is going to need amputation, then expect me to sympathize when you make five times the lieutenant's salary for doing less.

  • Big Brother is going to need to subvert the EU judiciary first. How ironic that the inchoate right in Europe that is a watered-down version of our Fourth Amendment gets more respect from a non-supreme judiciary than ours did from the USA TRAITOR Act.2
  • Literary feuds, in France. Your ancestors smell of elderberries, you English kanigget!
  • Professor Patry points out another bit of tension between the content industries and copyright law: He's dropping Netflix over its agreement to delay rentals.
  • Professor Tushnet comments on inscrutable, insurer-driven restrictions on fair use. The reality is that publisher policies on these matters are driven not by the individual consideration of the four factors in § 107, but by blanket provisions in errors-and-omissions policies written by people who do not understand even the basics of copyright law.

  1. At that, it's better than my first paycheck, all those years ago; thanks to President Carter's largest-ever-as-a-percentage military pay bump, I made almost as much as my girlfriend-the-Catholic-school-teacher. And speaking of grossly underpaid professions...
  2. To quote myself, from a little over a year ago:

    The USA Totalitarian Regime Activity Incitement To Obscure Reality Act, Pub. L. No. 107–56. They had to destroy civil liberties and representative democracy to save them. Riiiiiiight. What part of "protect and defend the Constitution of the United States against all enemies, foreign and domestic" did they not understand... aside from "all of it"?

    "Too Many Sausages, Not Enough Caffeine" (06 Oct 2008) (emphasis in original).

11 January 2010

Sausages Seasoned With Scare Quotes

Another binary day (the six-digit date is all 0s and 1s). That said, it's Monday.
  • Two fascinating, sideways-like comments on today's NYT editorial page: Paul Krugman comments on the "fact" that Europe's "socialist" economies are substantially worse off than the US's "archly capitalist" one, while the editorial board comments on "privatization" of war efforts as if it's somehow a new phenomenon (the East India Company is merely one example). As an exercise for the student, how are these two items related?
  • And a rejoinder to the nutcases commenting on The Perfesser's blawg: I may read the editorial page at the NYT, but I agree with what's printed there less than half the time. I don't blame the Perfessor for attracting a crowd that doesn't know the difference between "not conservative" and "liberal" (especially given that — in reality — there is virtually no mainstream liberalism in the US; there is at most frightened center-leftism). Professor Bainbridge knows the difference (I've actually had him in class); too bad y'all didn't stop to actually think about my comment:

    I actually find this whole meme [the academy is dominated by liberals] rather strange, because the academy is most emphatically not liberal. I should know: I am one. Instead, this is an argument about centrists v. rightists-who-consider-the-center-liberal.

    Ultimately, the problem is the one created by Roger Ailes et al.: Defining anyone who disagrees with any aspect of the "favored" conservative viewpoint as "liberal," when doing so inherently falls prey to the Aristotelian fallacy (the false dilemma). Too, there are more than just "conservative, centrist, and liberal" positions; Ailes and company got away with making "not conservative" into "liberal", but that's not a good reason for those of us who know better to reinforce that error.

    I'll grant that the academy is dominated by not-conservatives. I won't grant that it's dominated by liberals — at least in the US — because it isn't. Just because someone is to the left of Attila the Hun (or Rush, or whatever other rightist commentator or other ideological icon you're using as your touchpoint) does not make that person a "liberal". Liberalism is a specific set of ideologies that is much more nuanced than just "doesn't worship Russell Kirk"... even if it's some "compared to the population at large" polling system.

  • But all of that still beats the orthodoxy demanded in the world's most populous Muslim nation. Although, come to think of it, "orthodoxy" is definitely the wrong word to use in that context...
  • Professor Kleiman remarks on President Obama's somewhat ambivalent attitude toward gay marriage without reaching the underlying issue. I am, admittedly, much more radical on this issue than most: I believe in patrolling the wall between church and state with armed guards and rabid attack dogs, with air support available to deal with mass incursions. There is no excuse whatsoever for religious organizations exceeding their religious mandate and getting into politics (just as there is no excuse for government getting into matters of pure faith). To put it another way: The Vatican can be a church or a nation... but not both. And the same goes for the Southern Baptist Convention, whatever passes for an organization of Orthodox Judaism, etc., etc., etc. If you call yourself "Reverend," or "Minister," or "Bishop," stay the hell out of politics; and if you call yourself "Senator," or "Undersecretary," stay the hell out of religion.

    And so, on this question: Marriage as recognized by the state doesn't have a damned thing to do with individual faith — and certainly not with the individual faith of persons who don't share the doctrine/faith/ancestry of the loudest complainers — and therefore is outside the proper scope of organized religion's concern. Unless and until, that is, those religious hierarchies start applying their own purported rules to themselves with the same enthusiasm and vindictiveness as they would demand of others not of their faith, whether government or otherwise.

    Of course, this is not a realistic attitude, particularly in this nation; I don't expect too many to agree with it, let alone adopt it — and I can live with that. Those who advocate democratic governments and the rule of law have to accept that sometimes they're going to "lose" in the short run as the price of winning in the long run by having a democratic government and the rule of law. But I've been to Belfast, and Jerusalem, and Auschwitz, and Magdeburg, and Birmingham (UK and Alabama), among other places; very, very few of those who advocate the continued intertwining of church and state have.

04 January 2010

Post-Holiday Sausage Platter

Somewhat overdue post-holiday sausages... and, as much as nobody really wants to watch any sausage being made, you really don't want to understand how these were made. And stored. And shipped to you.

02 January 2010

Meet the New Censors, Same As the Old Censors

Today's entry from the Department of Misplaced Priorities concerns The Who and the Super Bowl. And one-issue politics. And idiots who cannot manage to distinguish between "artist" and "artwork," or "performer" and "performance."

One supposed child-advocacy organization in Pompano Beach, near where the Super Bowl will be played next month, requested that the NFL disinvite The Who due to Pete Townsend's expired registration as a sex offender... which was imposed on him for the horrible, horrible crime of accessing a site that also hosted child pornography in the course of researching background material (some of which is implicit in Endless Wire, so it doesn't appear to have been just an excuse). In any event, Townsend's "sentence" of appearing on the registry expired a while back.

Meanwhile, halfway across the country, we've got some real abuse going on at Texas Tech. Even if you credited the most innocuous-sounding of Mr Leach's descriptions of his treatment of a college sophomore suffering from post-concussion syndrome, that treatment was medically inappropriate. There's a huge difference between the medically indicated "avoid sharp, loud sounds and bright lights" and shutting someone — alone — in a dark (not darkened) room. And if you've got someone who could suffer an unpredictable seizure or relapse, you simply do not shut them away from supervision in the first place!

Besides, we're talking about a bloody football game. Even if one credited the censors of Pompano Beach — which I do not — it's not exactly a stretch to question whether this is just a publicity stunt. We'd be much better off barring Michael Vick from football for abusing dogs (and actually serving time); or Ray Lewis from football for his conviction for obstruction of justice in a homicide investigation (and actually serving time); or any of at least a dozen others within the NFL... if, that is, one is going to assert "once a miscreant, always a miscreant and danger." The whole point of limited terms of punishment (or, in Townsend's case, a limited term of registration) is the anticipation that the punishment will change the behavior in question for the better. That this doesn't always work is beside the point.

Besides, after the Springsteen debacle last year and the 0.56sec of a middle-aged black woman's breast before that, does anyone really look to the Super Bowl's halftime show as an "endorsement" of anything?

01 January 2010

Only Three of Them?

The 02 January Grauniad contains an absolutely wonderful, meaty slugline in the books section:

George W Bush, Dick Cheney, Donald Rumsfeld and Karl Rove have all chosen to publish their memoirs in 2010, thereby ensuring that at least three of them will be on the remainder piles by Christmas. The problem is that we already know what we are going to get: a badly written piece of fiction about how nothing went wrong and how if it did it was nothing to do with me.

John Crace, "The Books We Would Like" (emphasis added). Which leads, with more than a bit of glee, toward Clive James's classic of schadenfreude.

The book of my enemy has been remaindered
And I am pleased.
In vast quantities it has been remaindered
Like a van-load of counterfeit that has been seized
And sits in piles in a police warehouse,
My enemy’s much-prized effort sits in piles
In the kind of bookshop where remaindering occurs.

Clive James, "The Book of My Enemy Has Been Remaindered" (originally published in The London Review of Books in 1983).

Mathematically Challenged

John Darkow, Columbia (MO) Daily Tribune, 31 Dec 2009 (resized)This is really a losing argument: The decade isn't over yet. I don't begin counting with "zero" (except, of course, my checking account...); hell, I don't really like counting from the inaccurately calculated birthdate of a mythological figure, whether starting with zero or one. Maybe it's just that I don't have a problem with reading from right to left. It's one of those arguments that isn't really worth winning, either.

In any event, I don't do annual review entries, or anything like that; the closest I come is the Turkey Awards, but — as ridiculous as reality tends to be — that's hardly a complete review. The only new resolution I have has to do with resolving to get the dishes done before dinner tonight; it's also the only one I could keep that doesn't involve sarcasm.