The Most Wonderful Time of the Year

It's the first day of school! I get to hang around the house without the clump-clump of remora feet today!

• Congratulations to the nominees for and recipients of the Hugo Awards for "best" science fiction and fantasy works (and various support/fannish activities), announced Saturday night at the World Science Fiction Convention. The recipients were:
  • Novel: Connie Willis, Blackout/All Clear (single work published in two volumes)
  • Novella: Ted Chiang, The Lifecycle of Software Objects
  • Novelette: Allen M. Steele, "The Emperor of Mars"
  • Short Story: Mary Robinette Kowal, "For Want of a Nail"
  • Long-form Dramatic Presentation: Christopher Nolan et al., Inception
  • Short-form Dramatic Presentation: Steven Moffat et al., "The Pandorica Opens/The Big Bang", Doctor Who

  The real problem with the Hugos is that the voting process is even less rational and more likely to produce illogical results than is the US presidential primary system (or, indeed, any other primary system in the US!). For example, this year one of the finalists for "best" novel this year and "best" short story last year was also eligible for the Campbell Award ("best" new writer, but technically "not a Hugo")... but didn't make the final ballot with substantially more nominations for her novel than would have been required to make the final ballot for the Campbell. None of those who did make the Campbell final ballot were finalists for individual works either this year or last. That's not to diminish anyone's achievement... except, perhaps, that of the World Science Fiction Society itself.

• Meanwhile, H'wood executives are rending their designer garments over the "failure" of the Conan the Barbarian remake at the box office. Perhaps the lack of any discernable story or decent script had more to do with it than the executives would like to believe...
• Over at this blawg's only feline friend, the IPKat, there's an interesting discussion of a decision last week — another Second Circuit opinion that is essentially living in the past. The AmeriKat has a two-part summary of John Wiley & Sons, Inc. v. Kirtsaeng, No. 09–4896 (2d Cir. 15 Aug 2011). Do read the AmeriKat's summary; the short version is that in this opinion, the Second Circuit acted as if the Manufacturing Clause of the 1909 Act (§ 15, (PDF)) was still in effect, despite its utter absence from the 1976 Act and its inconsistency with our treaty obligations under the Berne Convention, WIPO agreements, NAFTA, etc.

  Kirtsaeng imported textbooks published by Wiley for foreign markets into the US and sold them on eBay... for considerably less than the US-market version of the same textbooks. (I should add that one need not scour eBay to find bargains like this — while helping my remoras purchase their textbooks, I found several more-formally-organized online textbook vendors who do the same.) The Second Circuit held that this is a copyright infringement, and it is not protected by the first-sale doctrine in § 109 of the 1976 Act. This time, the dissent has by far the better of the argument, but for an entirely different reason: That it would have been a clear violation under the 1909 Act, but Congress removed the statutory authority for asserting that violation in the 1976 Act. That said, both opinions are correct to criticize the ambiguous, inelegant prose in question!

  Kirtsaeng masks the real reason that the books are cheaper outside the US. The parties claim that it's due to cheaper binding and printing, thinner paper, etc.; however, I've examined several recent Wiley textbooks, and we're talking about a difference of much less than a dollar per copy on hundred-dollar-plus textbooks, especially since there's a decent chance with many textbook publishers that the bloody things were printed overseas anyway (thanks to the rejection of § 15's protectionist impulses by the 1976 Act!). The real difference is that typical US-publisher contracts — and I've seen enough Wiley textbook contracts to presume it's true for the particular textbooks at issue in this matter — give the authors a much lower royalty on books sold outside the US. It's in Wiley's best interest to protect this distinction, so that authors don't start questioning Wiley's accounting of which sales were "in" and which sales were "outside" the US. <SARCASM> But then, we should always trust publishers' accounting anyway, right? </SARCASM>

  Finally, Kirtsaeng still represents an intermediate case to the concerns Justice Ginsberg expressed in Costco last year... because the works at issue are merely less-costly packagings of copyrighted material otherwise available in the US. The true extreme case is for a work for which no authorized US edition presently exists, but is imported (even in large quantities) from foreign editions in advance of planned US publication. Consider, for example, a hypothetical Harry Potter book published only in England, with the US edition to be several months (or even weeks) later. That is the true test cast for the first sale doctrine — not a grey-market transaction in which the ultimate victims are not the publishers, but the authors.