Link Sausage Platter: Criminal Intent

No, this isn't a spinoff for next season, but it might as well be for today...

• Compare and contrast:
  • Now Random House (Bertelsmann) is joining the Macmillan (von Holtzbrinck) agency model resale price maintenance agreement rush, while
  • EU antitrust authorities begin a skeptical look at e-book pricing with raids on e-book firms

  Yeah, this is going to end well, with a unified worldwide pricing system (and easy-to-understand, full royalty statements afterward!) for a nonterritorial good. Keep in mind that Leegin did not say that resale price maintenance agreements are now legal, and inherently not antitrust violations; it merely put impossible-in-practice-to-overcome procedural barriers in front of the claims, relegating them to the so-called "Rule of Reason" (which should be better known as the "Rule of Expensive Law Firms and Duelling Experts") instead of treating them as per se antitrust violations. That is, it only changed the way that one must attack a resale price maintenance agreement as unlawful under US antitrust law...

  The irony that Macmillan (with the RPMA) and Random House (with the recent restrictions on e-book lending by libraries imposed unilaterally by Random House) are acting like they're licensors, while the underlying law of the Copyright Act of 1976 makes them licensees but they continue to negotiate author contracts as if the author contracts are irrevocable sales, seems curiously unacknowledged. "Curiously" as in "curiouser and curiouser," not "unexpected"!

• With an 8–1 vote, the Supreme Court correctly confirmed that Fred Phelps has the right to be a bigoted asshole with no grasp of reality near military funerals. In Snyder v. Phelps, No. 09–751 (02 Mar 2011) (PDF), the Supreme Court held that based on the law as it stood at the time of the funeral (which has since changed, but was not before the Court — see slip op. at 10–11 — and, in any event, did not reach the specific facts in this matter), the Westboro Baptist Church had the right to picket the funeral of a soldier who died in a combat zone:

  Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder’s funeral, but did not itself disrupt that funeral, and Westboro’s choice to conduct its picketing at that time and place did not alter the nature of its speech.

  Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.

  Slip op. at 14–15.

     In one sense sadly, this particular case against WBC was undermined by some less-than-optimal lawyering, as implied by footnote 1 in the opinion (slip op. at 3). I think the Court was right, both prudentially and jurisprudentially, in avoiding the later 'net postings entirely... on the ground that Snyder's lawyers did not properly present that subissue to the Court in the briefs and petition for certiorari. That is a morass that could well have changed the result in this case, but not necessarily in a good way: It would no doubt have only confused the result. On these facts and this law, the Court reached the right decision... because just like the Illinois Nazis in The Blues Brothers, Phelps and his minions have the right to present their message of hatred and bigotry in public. The alternative is much, much worse — just ask the ghost of Aleksandr Solzhenitsyn (and that choice of source is, itself, with malice aforethought).

• More questionable activity in the entertainment world. In a story nearly as shocking as finding gambling in Rick's casino, Sports Illustrated and CBS have found significant arrest records among "scholarship athletes" in bigtime NCAA football programs. Ho hum. It's nowhere near as interesting as Charlie Sheen's antics. It's also slightly unfair, as it focuses on arrest records and not convictions (given the racial component involved, that's a substantial methodological flaw in the piece). The Duke lacrosse incident should have convinced these journalists not to rely upon mere arrests and accusations. That said, while one cannot rely upon the findings to determine probabilities or a particular player's characteristics, one can justifiably point to smoke and infer that there's fire in there. What a surprise.