09 January 2013


It's not that these are Portuguese internet link sausages — it's merely that they're linguistic to one degree or another.

  • Language is not static; over time, and for that matter over distance, it changes. German is notorious for the grammatical differences between the formal and informal second person — verbs and tenses are different (subtly so, but it's not just conjugation). And now it's changing further before our eyes... or at least on our tongues.
  • Apropos of the preceding item (and, in fact, the preceding platter), there appears to be gang warfare over writing and documentation style, with real casualties. Or as real as the fiscal cliff and debt ceiling, anyway.
  • Professor Madison confronts the tip of the iceberg in questioning the relationship between containers and content. I suggest that they're inextricably intertwined. On the one hand, pricing of copies of creative works is almost entirely based upon content-independent (or at least largely independent) aspects of the container, and those copies seldom vary more than a single order of magnitude. For example, in trade publishing, there's less than a single order of magnitude between a mass-market paperback (currently around $8) and a limited-print-run deluxe-but-not-handmade, leather-bound casebound edition (currently around $65 on average); in between, one finds the trade paperback, the "standard" casebound, the film tie-in special cover edition, and so on. One can make similar assertions across the range of creative works that are distributed in statistically significant numbers of copies, and one won't be far wrong.

    Conversely, though, let's look at types of art that are not distributed in copies. Ticket prices for live musical and dramatic performances vary by one helluva lot more than a single order of magnitude, even among "artists" of similar critical reputation, and depend almost entirely upon the characteristics of not the "container" (stage dimensions, room acoustics, etc.), but upon location and seating capacity. Similarly, prices for "originals" in the visual arts vary by multiple orders of magnitude — seemingly by whim — even within the same artist's output, let alone across artists, or eras, or cultures, and without regard to the intrinsic (materials-based) value of the pieces being compared.

    The real fun comes when one considers the interplay between container and content. For example, why is a "novel" the length it is? Why aren't short stories released individually? Why are feature films the length they are? What effect do these container boundaries have on the content of the works? Exhibit A: compare the so-called "director's cuts" of Brazil and Apocalypse Now! to their respective theatrical/commercial releases; one of the director's cuts is vastly superior to the theatrical release, but conversely for the other work; in each case, the shorter version was dicated entirely by container-centric considerations. The fundamental difference, as implied by puppeteer/author Mary Robinette Kowal, is the simultaneous overlap and distinction between "audience" and "market" for a reproducible work.

    The real fun begins when one takes works that were not reproducible at the time they were created and enables reproduction later. Logic is more consistent and easier to follow in Wonderland than in those circumstances...

  • A fascinating decision — at least, as a civ-pro nerd and IP geek I find it fascinating! — on athletic shoes may have some really important implications for fan fiction... and the so-called Creative Commons License. Today's unanimous (5-0-4 — there was a four-justice concurrence) decision in Already, LLC v. Nike, Inc., No. [20]11–982 (09 Jan 2012) (PDF), holds that certain covenants not to sue are "good enough" to make a counterclaim for trademark invalidity moot, and force dismissal of that counterclaim (albeit without prejudice). In this particular instance, Nike had sued Already for infringement trademarks arising from its "Air Force 1" line of shoes; Already counterclaimed that the trademark was invalid. Nike then created a covenant (written promise) that it wouldn't sue for existing infringements of that line by "small" shoe companies like Already, and filed that covenant with the court dismissing its own claims. That left Already's counterclaim against the mark's validity... but Nike also moved to dismiss them on grounds of mootness. The decision this morning says that Nike did enough in this case to truly moot Already's counterclaim, meaning that the entire case is dismissed. Since it's substantially more difficult (procedurally) to file a purely offensive action to invalidate an existing trademark, that may well completely eliminate the challenge.

    So what does that mean for fan fiction? Or for the CCL?

    The key in both instances is going to be whether the covenant not to sue — whether from the author, or the CCL (because it is not a license, but merely a covenant not to sue) — goes as far as Nike did in its specific covenant. This is the "voluntary cessation doctrine": The party asserting that a voluntary cessation moots a pending matter must demonstrate, pretty convincingly, that it cannot merely "return to its old ways." Slip op. at 5–9. And that's where fan fiction and the CCL get... interesting. An author's statement of approval of fan fiction, or limits on what might be approved, fails the Deakins test in almost every respect, and simply cannot be relied upon. (Those of you who argue that this is "about" trademark law, and fan fiction is purely "about" copyright law, are wrong at both levels — this is "about" civil procedure and constitutional standing, and fan fiction absolutely implicates trademark law depending upon how it is distributed and whether it tarnishes the original.) The CCL is only marginally better, because it's not binding on heirs and can't survive bankruptcy (and certain other kinds of business reorganizations). So, under Already, an author's promise concerning fan fiction (of the type typically offered), or the CCL, would appear not to be available as offensive tools, but only as defenses once a holder asserts an infringement claim. And that is inconsistent with the stated purposes of the CCL, if nothing else.