If you came here expecting to see me to rip into the AAR today, you'll have to wait one more day. Besides, that'll give you a chance to cover your keyboard with an acid-and-flame-retardant sheet, because I expect the acid to drip off your monitor as it smolders.
- Professor Grimmelmann reads 350 pages of a critically important opinion on state-university-library "electronic reserve systems" so you don't have to. (I did, but my analysis tracks his except for one very minor point that I'm in the process of turning into a law journal article and previewed in the comments on his website.) The two critical points are these... and they have important implications for the GBS litigation, for the Hathitrust litigation, and for that matter for the Wormyfruit litigation:
- Just like in mortgage servicing litigation (or, indeed, attempts to collect on credit-card debt), documentation of the chain of title and entitlements matters. The publishers lost most of their claims because they couldn't produce copyright registrations, or contracts showing rights to copyright and/or permissions control and/or anything else. This does not surprise me at all: I've had many, many dealings over the years with one of the publishers for permissions, and only once out of all of those contacts did that publisher have documentation... and the documentation reserved permissions rights to the author!
This leads to an obvious corollary — and it's one that authors who are going the self-publishing route must be careful to avoid, particularly since it's entirely within their control. Although the number-one cause of small-business failure remains inadequate capitalization, the number-one cause of litigation in business bankruptcy remains inadequate recordkeeping... and in my experience (which is rapidly approaching statistical significance, although it remains at present anecdotal and subject to sampling variance attacks), it's even worse with intellectual property rights than with financial records.
- Fair use, by its nature, is not amenable to "as a matter of law" resolution, but is instead a work-and-circumstances-specific inquiry. Anyone who did not comprehend this after Nation Enterprises simply was not paying attention to the decision... and probably had an ideological axe to grind. That implies the obvious solution to the problem: Rewrite the damned statute to make sense, preferably from a zero basis (rather than a mere amendment). Yeah, that's gonna happen.
As usual for anything related to the legal context, of publishing, PW and its headline writers get this almost completely wrong. The decision was "mixed" just like seawater is "mixed": It's almost entirely H2O. And contrary to Mr Albanese's inept analysis, that this was an arm of the state library matters a great deal to every aspect of the ruling; he did not even mention that factor, which strongly informs the court's purported "bright line" test... and further resolves any surface conflict with Nation Enterprises (less than one chapter, approximately 670 words = an infringement on those facts).
- Just like in mortgage servicing litigation (or, indeed, attempts to collect on credit-card debt), documentation of the chain of title and entitlements matters. The publishers lost most of their claims because they couldn't produce copyright registrations, or contracts showing rights to copyright and/or permissions control and/or anything else. This does not surprise me at all: I've had many, many dealings over the years with one of the publishers for permissions, and only once out of all of those contacts did that publisher have documentation... and the documentation reserved permissions rights to the author!
- If you've ever struggled with discrimination of any kind Over Here, be glad you're not in India. Other "markers" for greater discrimination problems than the US are left as an exercise for the student (and that includes you, recent graduates — you're still students). My point is not that the US is paradise; it's that some circles of hell are worse — much worse.
- Don't bother with blurbs on your books, especially e-books; no customer believes them anyway, and they're really only useful as adjuncts in actual advertisements (as opposed to on the product itself) anyway.
I've actually run some numbers on this, although they're not from a broad enough base to be anything other than anecdotal. The three case studies I've looked at, for alternate editions of serious nonfiction and trade nonfiction, show virtually no difference in sales rates for works bearing blurbs and works not bearing blurbs. The difference, such as it was, concerned placement rates at a certain now-bankrupt-and-gone bookstore chain; placement rates at a continues-to-plague-our-existence bookstore chain; and stockage levels at both of them (as proxied by the proportion of "special orders" versus "satisfied from store stock").
- But I suppose that's less futile than struggling over who is the "rightful heir" of a dead Frenchman's symbolic memory... presuming that one understands his ideology in the first place, and that it remains applicable in current contexts in the second.
- Rob Deemer struggles with a question that also should matter to authors and MFA/creative writing programs: the difference between teaching composition and teaching the student to be a composer. It's not just attitude, or business sense, or the basics of accounting/self-promotion/distinguishing between private and public life — it's about a combination of them, and the best teaching is by example. That's one of the things that's so frustrating about MFA/creative writing programs: So few of the instructors are, themselves, successful authors (as opposed to writers).
- Tom Christensen implicates some other work-for-hire issues in his (rightful) praise for museums that donate images of works in their collections for general use without a license fee. The real question is who would own the copyright in the images in the first place: The museum that "owns" the work... or the photographer who creates the image? If one actually reads the text of the Copyright Act, one will not assume that it's the museum, unless the photographer was statutorily an employee of the museum — because photographs of three-dimensional (or two-dimensional) objets d'art do not fall within the scope of works eligible for treatment as work-for-hire by a freelancer.
- From the department of "well, duuuuh," a "scientific" study confirms that literary style is more influenced by contemporary discourse than "classic" literature. This is not exactly a new phenomenon; despite both being in verse, Shakespeare doesn't resemble Beowulf very much...