Easier to Find Than an Honest Politician

I'm irritated because I came to the Bay Area, in part, to get away from xtian control over businesses, only to find that "Good" Friday through Easter is more restrictive here than in East Central Redneckistan — even the bloody mall was closed today. I therefore propose the following festive meal:

Devilish Eggs Six hard-boiled eggs, chilled and peeled (ensure that you wash away the colored shell bits) 1 tsp good prepared mustard (stone-ground, Dijon, or horseradish-laced) 1 Tbs unflavored Greek yogurt 1/4 tsp or to taste ground Aleppo pepper 1/8 tsp demerara or turbinado sugar 1 clove garlic, minced 1/2 tsp minced chives salt and pepper to taste   Carefully halve the eggs lengthwise and scoop the yolks into a small bowl. Mash the yolks with a fork, then add the remaining ingredients and mix thoroughly to a smooth paste, then divide and mound in the egg whites. Divide two per serving.

Spwing Bwoilled Wabbit 1 rabbit, cleaned and cut into serving pieces 2 cloves garlic, minced 1/2 medium onion, minced 1 small kiwi, peeled and chopped 1/2 cup good-quality soy sauce 2 Tbs dry sherry (not "cooking sherry") 1/2 Tbs sesame oil 1/2 Tbs freshly ground pepper 1 star anise   Rinse the rabbit and set in a glass or ceramic bowl or dish. Mix the remaining ingredients and pour over the rabbit; allow to marinate at room temperature for two hours, or in the refrigerator overnight. Preheat a broiler, shake the excess marinade off the rabbit, and broil, turning and basting once.

Serve with steamed rice and either coleslaw or shredded seaweed kimche. And don't tell the kids whowhat they're eating...

Visiting a Foreign Country Without a Passport

Today's theme music:

• Once in a while, a feline stops merely treating humans with disdain and expresses something that humans need to hear. (That's different, of course, from what the feline needs the human to hear.) This blawg's only feline friend the IPKat did just that today.

  And so the question—should we be rethinking our notions of employer-employee-contractor ownership of IP rights in light of these changes to labor market composition? After all, there is nothing cast in stone about our current arrangements regarding IP ownership, which can be seen as the product of the intersection of law and social policy in response to given historical circumstances. It has always been this Kat's understanding that the legal framework favoring employer ownership of employee works and inventions arose from the industrial model of organization that took hold in the 19th century. Whether those arrangements can be seen as benign or malign depends on your overall socio-economic view.

  Indeed, it seems reasonable to conclude that, if production had remained a matter of local cottage industries, the legal treatment of intellectual property ownership might well have been different. Nor is it inevitable that the employer will always have the permanent upper legal hand regarding IP ownership. It appears that the German system, which is particularly favorable to employees, derived from legal provisions enacted in the middle of World War II to encourage employee inventions. The upshot is that the status of employee/contractor/employer ownership of IP rights is a dynamic process, depending upon both time and place. Given this, what should we make of the decline in full-time employment and the concomitant rise in part-time and freelancing?

  "Is It Time to Rethink IP Ownership?" (IPKat, 29 Mar 2013).

  These are underasked questions. Let's leave aside, for the moment, the cognitive dissonance that arises from comparing the purpose of intellectual property — broadly, "innovation"; specific to US constitutional law, "promot[ing] progress in the useful arts and sciences" — and mandatory transfer of ownership of individual pieces of intellectual property to inherently noninnovative capital accretions (employers), whether by the work-for-hire doctrine or enforceable, customary assignments of rights enshrined in what passes for employment law. Let's also leave aside, for the moment, the incredulity that arises from a cold, harsh, context-sensitive appraisal of the terms of those transfers as they have become customary, both in expression-oriented and in idea-oriented intellectual property (generally, "copyright" and "patent" law, but it's not nearly that simple). That leaves a fundamental question that is even deeper than the two critical policy issues that this particular Kat's mewsings conclude with: Assume for the moment that the US Constitution's IP clause means what it says, says what it means, and accurately reflects the economic foundation of and justification for intellectual property... and that this economic foundation and justification are both necessary and sufficient conditions. Under that assumption, who is being incentivized, and what is being incentivized, when the default legal condition forces transfer of ownership of (or, at minimum, ownership of the most-critical aspects of) intellectual property to a noninnovative capital accretion? The obvious second-order question that arises, whatever the answer to that first question may be, is whether the answer to that first question is consistent with the statements of purpose.

  If your eyes are not sufficiently glazed over yet, perhaps a specific example will make sense. Consider the application of the American work-for-hire doctrine to the production of a film. Under the WFH doctrine, the patron is the author (17 U.S.C. § 201(b)); in this instance, it's an essentially mandatory transfer "as a part of a motion picture or other audiovisual work" because the industry — secure in the enforceability of its contracts — has made that an essentially nonnegotiable condition of obtaining compensation, aided and abetted by the abject failures of the unions purportedly representing the participant and especially the writers. So, that means that all innovation is incentivized only by the actual third-party-defined-in-advance terms offered to the actual innovators. Conversely, those third parties — the capital accretions, whether individual producers or production companies or the broader securities market or whatever — have budgets (and anyone who thinks H'wood is a land of excessive cost overruns should take a look at weapons procurement some time). Their incentive is to pay for no more innovation than is actually and absolutely necessary to their projection-from-past-experience income streams... and the farther the innovation gets from past projections, the less likely they are to compensate the innovators for that innovation based on mandated transfers of ownership. If one assumes perfectly rational actors, one ends up with an "innovation industry" dominated by barely distinguishable copies of other innovations; with stagnation; with a remarkably narrow definition of what constitutes an acceptable innovation; and, frankly, shock that there is as much innovation as there is. That sounds awfully close to H'wood as it is...

• If you need any proof that as a whole even the innovation industries are living in the past, just consider the ridiculous tale of Adria Richards.

  I don't know whether what she did was right or not. I wasn't there. I didn't hear the joke that the guys in question allegedly told. What I do know is that for a member of the minority out-group, there is frequently no action that will be accepted as "right" if it includes the assertion that the majority did something offensive.

  (emphasis in original) Just about everyone involved is letting the past rule their reactions, and I'm not excluding the participants in this little contretemps. I shouldn't need to point out the irony of this sort of 1960s-Birmingham-steel-factory nonsense occurring at an innovation-oriented industry conference, but I almost certainly do. It's rather sad that treating others with respect is "innovation"...

  The corallary that many of us — as the "smart kid" in the class — have been through a version of this ourselves should have taught us differently indicates that "learning through experience" is insufficient should also be obvious without being said. But it isn't and it does.

• Or connect everything to concepts of "the business of literature" based upon a past-worshipping restrictive definition of "literature" that excludes innovations in form and content. Don Quixote, 100 Years of Solitude, and The Lord of the Rings would be outside the "business of literature" as Mr Nash conceives it. That's not to say that his observations are invalid (often underinclusive, but at least he acknowledges that not all history of publishing is from/in the Anglo-American realm) — only that they are not universal.
• As a thought experiment, connect the preceding items and infer the socioeconomic/racial/gender/religious/whatever status of the actual decisionmakers for each instance. What does that say about incentivizing innovation?

Everything But the Squeal

Today's platter of internet link sausages is heavily seasoned with sarcasm (to help hide the chewiness of the cartilage and other connective tissues). What, you're surprised?

• The publishing industry is changing. So, naturally, what passes for "journalism" relating to the publishing industry focuses on people with a vested interest in minimizing that change... even in the face of French disrespect for everyone involved, especially the authors (at least if they're foreign authors).
• Then, watching the current dinosaurs, none of that is excessively surprising. On one tentacle, there's the "why can't they both lose?" struggle between S&S and B&N over product placement and terms (ignoring, of course, that the authors are neither being given any say over it, and will be the primary victims). On another tentacle, there's the misuse and misunderstanding of the roles of libraries by virtually everyone. On yet another tentacle, there's the misguided "boycott" of Amazon-published books by bookstores (sorry if that link seems stale, but most of the more-recent ones are behind paywalls, and I seldom link to paywalled material on this blawg). I'm nowhere near out of tentacles yet!
• A fascinating decision from the Supreme Court this morning holds that bringing a drug dog up to the front door is a search that requires a warrant (PDF). There are several interesting aspects of this opinion — such as the 5-judge, pro-defendant majority of Justices Scalia (wrote the opinion), Thomas, Ginsburg, Kagan, and Sotomayór — but they're just surface amusement. The beneath-the-surface interest is in the rationales for the various positions. The majority was a property-rights basis; Justice Kagan, for herself and Justices Ginsburg and Sotomayór, agreed and said she'd have been perfectly happy on a Katz/expectation of privacy basis; and the dissenters... allowed an inexperienced clerk to draft their opinion (I hope). The key point is that Justice Kagan's concurring opinion points toward reinvigorating the privacy issues involved in any other kind of search involving "enhanced tools" like drug dogs... or, one might hope, database-mining searches of electronic communications, as I suggested a couple of decades ago.
• Dean Wesley Smith grumps — not gripes, grumps — about doing corporate taxes as a small publisher. Gee, I wonder if any of the scam publishers out there ever did this? More to the point, whether they ever got competent tax advisors (CPAs and/or lawyers) to sign off on it?
• The UK is going farther along the "let's prevent orphan works" path than the US has been willing to even discuss, with a new partially funded "copyright hub" to make finding holders easier. Of course, the UK is not crippled by the insanity of the US's we-call-it-registration-but-it's-registration-in-name-only copyright system, so the copyright hub actually has a chance to work! And meanwhile, in a coda to Kirtsaeng, Scottish courts have further trampled on territorial rights; with Rangers mired in Division 3 (thanks to financial shenanigans more than poor play), though, I'm really not sure it's going to make much of a difference for a couple of years.

Licentiousness (and Kirtsaeng)

The Kirtsaeng decision is going to have some interesting effects on the transmittal of copies of copyrighted material in the next few years. Unfortunately, this time I really do mean "interesting" in the sense often used in graduate seminars when commenting upon a paper that seems more clever than thoughtful, more rhetorically elegant than analytically sound. It all revolves around the distinction between a license and a sale.

At the user level, this will have an obvious and immediate impact on e-book "sales"... or licenses. This has already been a problem, as when Amazon snatched back copies of 1984 that were paid for by its customers; it is only going to get worse. Then, too, there's the vendor-lock-in problem unique to media and electronic products: Vendors' assertion that transfer of a copy of noninteractive content is only a license, and that therefore it may not be moved to a different device (let alone a different type of device). These are both hard questions that I think — I'm willing to be convinced otherwise, but my research and reflection leads me here — narrowly reject treatment of noninteractive, nonalterable copies of content transmitted to the end-user as a mere license. The obvious problem with this position is that it does not present a bright-line rule that lawyers can't argue about... but then, neither did the Choose Your Own Adventure books, or indeed any user-directed work (such as certain "reinforce-the-concept" test manuals from the 1970s).

And now things get really interesting and technical, and split in multiple directions.

The first question that one must ask is a seemingly simple one: At what point in the copyright chain may (and, further, must) an IP transaction be treated as a license, and at what point a sale? Keep in mind that the Copyright Act of 1976 — without ever using the word — treats the creator-distributor (I'd say "author-publisher," but that's too narrow) transaction as a license by default with a sale possible through certain formalities (either treatment as work for hire or a formal transfer of the copyright itself and not just certain rights provided by copyright). This is bad writing and bad thinking, but that's only to be expected for the Copyright Act. One can hardly claim, though, that this is a unique-to-US-law problem, as it is also a problem in the national laws of the European nations, the Commonwealth, the former Soviet states, and Japan — and the Berne Convention, for that matter. This problem has been perpetuated by the less-than-sophisticated treatment and rhetoric of the literary-agent community, aided and abetted by publishers and what passes for a publishing press, in referring to author-publisher transactions as "sales" without regard to the particular transaction. The increasing imposition of book packagers into this process — and that's the best way, both legally and artistically, to characterize James Patterson et al. — further confuses the nature of the transaction.

What this means is that at some point in the chain between author and reader, a licensing transaction¹ must be converted to a sales transaction for the first sale doctrine (17 U.S.C. § 109) to apply. There's already pretty substantial case law in the Courts of Appeals indicating that copies of software, transferred under license, do not trigger a first sale,² and that the licensor can continue to control downstream transactions in those copies. The critical fact in these cases, though, is that they all relate not to static content, but to tool systems; the purported "license" found on VHS tapes and DVDs has already been found unenforceable in most circumstances. Chapter 12 of the Copyright Act — the undoubtedly bad part prohibiting removal of DRM — just confuses things further; it's arguable that the peculiar format of the AZW3 (Amazon e-book) file itself constitutes nonremovable DRM, therefore prohibiting transfer to a device or using a software reader that is not Amazon-approved. In any event, for the first-sale doctrine to apply, at some point the copyright license must be converted to a sale. The flip side of that transfer — what if an intermediary doesn't want it to be a sale? — casts some flickering, unreliable light on the problem.

A couple of examples might help illuminate (or, perhaps, merely confuse) the matter.

• First, consider used bookstores for old-fashioned (snort!) ink-on-dead-tree books. If one applies the license-is-not-a-sale meme, then all that should be necessary to entirely destroy used bookstores as a market is an enforceable declaration by the publisher that copies are transferred to readers only as licenses, not as sales. The hard part is making that declaration enforceable; I think there are a few hundred too many years of tradition in treating these as sales for this to be enforceable short of a statutory change, and that runs into First Amendment problems... especially for derivative works, and works commenting on other works as fair use.
• Second, consider a slightly narrower used bookstore problem: That for textbooks, which almost uniformly do not start off as licenses, but as actual sales (due to the formalities of industry custom). On the one hand, it seems abstractly "fairer" for the party that really does own, and always has owned, the entire bundle of rights in a textbook to be able to specify that it is transferring only a license with a copy rather than ownership of a copy. On the other hand, that "fairness" inquiry just brings us back to the question of who has the power to define a transaction's nature.
• Third, consider the terms of a license. Is a shrinkwrap license on noninteractive content enforceable in the first place?³ In particular, is such a license that alters the social assumptions and norms of what is being transferred, and how, enforceable? This is not an easy question, because I do not think there is an abstract rule that applies; at best, there are norms and standards, and that's precisely what we're trying to judge in the first place. Then, too, since the law of sales and the law of licensing are, in the US, almost exclusively matters of state law, one very well might get a different answer in Connecticut than in Pennsylvania, let alone California.
• Fourth, consider the implicit interplay between fair use and the first sale doctrine. With footnotes and at length (when I tried to outline a satisfactory introductory piece in the wake of Vernor on this, I couldn't get below 10-12,000 words). The key point is this: If one takes the wording of section 107 seriously, the nature of access to the source work should be a significant factor in any fair-use analysis; that is, it should matter a great deal whether the source work became available to the reuser (who is seeking fair use status for her purported derivative work) via a sale or via a license, because that should have significant implications under the first and fourth fair-use factors... and probably even more implications under the nonstatutory fifth fair-use factor (administrative convenience).

The second question that one must ask is seemingly far from copyright law, and instead arises from consumer protection law: How much notice must a consumer end-user have that he/she is receiving only a license, and not title to the copy in his/her hands? And does that matter when the transfer is a business-to-business transaction outside the scope of a particular state's consumer-protection laws, such as when a law office buys a copy of a treatise on copyright?⁴ Most particularly, how much notice must that consumer/end-user have when the vendor's status assertion is inconsistent with ordinary consumer/end-user expectations... and when? Kirtsaeng does not, and cannot, answer these questions, for a very simple reason: Mr Kirtsaeng, while he may have been offering goods for sale to the general public, is a second-order vendor; we can't figure out what his rights were without knowing the rights of the first-order vendor — in Bangkok.

Thus, however much we try to simplify the purported "principles" of Kirtsaeng, we're left with more questions than we started with regarding future transactions. That is, perhaps, as it should be — it points out rather emphatically that sometimes stare decesis presumes stagnation in the face of rapid change in context. For individual-access transactions, the rapidity of change is built in... and that's particularly ironic given Kirtsaeng's origin in the world of textbooks with commercially driven, artificially rapid edition changes intended largely to repress the market in used texts.

---

1. One of the subtle complications here is that some of these transactions — specifically including most or all of the textbooks actually at issue in Kirtsaeng — were arguably never licensed, due to the work-for-hire doctrine as it relates to textbooks. One can thus argue — with more than a little validity, if also more than a little hairsplitting — that trade books, and multimedia works, are factually distinguishable from Kirtsaeng's facts and therefore not entirely decided. Yet.
2. See, e.g., Vernor v. Autodesk, Inc., 555 F. Supp. 2d 1164 (W.D. Wash. 2008), rev'd, 621 F.3d 1102 (9th Cir. 2010), and the cases cited in those decisions. Of note, Vernor was a declaratory judgment case... meaning that the factual record was far less developed than that in Kirtsaeng. I'm not certain this would have made a difference; but then, "not certain" is the inherent nature of declaratory judgment fact patterns!
3. With all due respect to Judge Easterbrook — no, without a whole helluva lot of respect — ProCD, Inc. v. Zeidenburg, 86 F.3d 1447 (7th Cir. 1996) was wrong when it was first decided and it is even more wrong now. At its core, ProCD presumes that the owner of rights, whether by sale or by license, has an unfettered right to declare the nature of what it is transferring... without regard to any other legal restriction. Judge Easterbrook grievously micharacterizes the fact-expression dichotomy of Feist Pubs., Inc. v. Rural Tel. Servs. Co., 499 U.S. 340 (1991), which is wrongly dismissed as a restriction in and on ProCD with the blithe assertion that trade secret law allows protection of mere lists "licensed" outward (ProCD, 86 F.3d at 1454)... without any record that the other requirements of trade secret law, such as adequate safeguards, are also being followed.
4. Compare Md. Comm. Code § 13-101 et seq. (businesses excluded from protections afforded by consumer protection law) with Conn. Gen. Stat. § 42-110a et seq. (business included in protections afforded by consumer protection law). As an aside, the limitations of the Maryland law are part of what has kept notorious scam publisher P___A___ in business, because the author-publisher transaction is a business-to-business transaction... meaning that only common-law fraud, with its substantially higher burdens of proof, litigation expenses, and so on, applies.

Chew Before You Swallow

It's not that I've been withholding internet link sausages from the starving masses, it's that I've been away (and down with back problems). So remember to chew as you work your way through this platter!

• Some of the work I did over a decade ago is still coming back to haunt pirates and those who would sell them the tools of their "trade," as the Ninth Circuit ruled yesterday. In the IsoHunt case — formally, Columbia Pictures Indus. v. Fung, No. 10–55946 (21 Mar 2013) (PDF) — the Ellison matter is rather central to the panel's reasoning.

  As to the first prong of § 512(c)(1)(B), we have held, in the context of service providers who charge for their services, that a service provider receives a direct financial benefit from infringing activity where “there is a causal relationship between the infringing activity and any financial benefit a defendant reaps, regardless of how substantial the benefit is in proportion to a defendant’s overall profits.” Ellison, 357 F.3d at 1079; see also Napster, 239 F.3d at 1023; CCBill, 488 F.3d at 1117–18 (holding that the Ellison “direct financial benefit” vicarious liability standard applies under 17 U.S.C. § 512(c)(1)(B)). Thus, where a service provider obtains revenue from “subscribers,” the relevant inquiry is “‘whether the infringing activity constitutes a draw for subscribers, not just an added benefit.’” CCBill, 488 F.3d at 1117 (quoting Ellison, 357 F.3d at 1079).²¹

  * * *

  21. Our decisions interpreting the “financial benefit” prong of §512(c)(1)(B) derive almost entirely from our earlier decisions discussing “direct financial benefits” in the context of vicarious liability for copyright infringement. Those cases also involved defendants who derived their revenue from consumers. In particular, our decision in Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 263–64 (9th Cir. 1996), has been the starting point for our subsequent § 512(c)(1)(B) decisions. In Fonovisa, we held that swap meet operators “reap[ed] substantial financial benefits from admission fees, concession stand sales and parking fees, all of which flow[ed] directly from customers who want[ed] to buy the counterfeit recordings” available at the swap meets. 76 F.3d at 263. In doing so, we relied on district court decisions “imposing vicarious liability on the operator[s] of [dance hall] business[es] where infringing performances enhance[d] the attractiveness of the venue[s] to potential customers.” Id. (citing Polygram Int’l Publ’g, Inc. v. Nevada/TIG, Inc., 855 F. Supp. 1314, 1332 (D. Mass. 1994)).

  (slip op. at 48–49) Ten years is a long time for a decision on internet "stuff" to remain current... even considering that one of the three judges on this panel (Judge Pregerson) was also on the Ellison panel. Then, the copyright holders' counsel in IsoHunt were also our amici in Ellison.

  All of that said, the battle over internet piracy is beginning to resemble the gun-control debate rather too closely for comfort. Mr Fung's position was, essentially, that making tools and venues for pirated material available to the general public doesn't cause piracy — pirates cause piracy, and as the mere toolmaker/venue provider he's not responsible for that. The Ninth Circuit — properly, as it's bound by logic and by Grokster — rejected that position.

• Turning slightly less theoretical for a moment, an interesting attempt at gathering actual data concerning publishing issues — something that doesn't happen very often — has concluded that bookshop browsing is a vital component of even online book sales in the UK. I believe this is true for the US market, but of substantially lower magnitude, for a very simple reason: Our pervasive, current-works-oriented public library system fulfills browsing functions that the UK's vision of public libraries does not. Thus, I expect that the purported "one third of sales" effect has a different magnitude here — and, in particular, it is a substantially different magnitude away from major metropolitan areas. For the sake of illustration, assume that the "nonsubstitution" barrier is a two-hour drive/trip. A two-hour trip with no bookstore is a lot easier to plot on a map of Texas (or of California) than it is on a map of England...
• It's all about the business of literature... depending, of course, on the definition of "literature" at issue. For all of the insight in Mr Nash's piece, it is limited by its failure to display a coherent grasp of what it is ultimately concerned with — and an underinclusive incoherent grasp. Then, too, the portrayal of the history of the three-century-long orgy among thirteen distinct and independent "industries" that we now call "publishing" leaves a bit to be desired, but then so does everyone's; the problem here is that Mr Nash is making some sweeping generalizations based on other sweeping generalizations about the past that simply are not consistent with late-twentieth-century research into the Company of Stationers, let alone the continental experience. Despite these flaws, Mr Nash's piece provides some useful things to think about when trying to figure out pricing — and, in particular, when trying to figure out e-book pricing.
• If there's one thing constant in the arts, it's change. If there's one aspect of change that one can count on, it's counterintuitive shifts in segment dominance that aren't at all what they seem. That piece in the FT is a specific example, because of what it does not acknowledge: That the "Nashville music establishment" today is largely what the "LA music establishment" looked like in 1973. A substantial proportion of the "country" music culture emerging from/controlled in Nashville today would have been pop-rock controlled in LA in 1973. Country music still includes George Strait and Loretta Lynn... it's not limited to George Strait and Loretta Lynn. This should sound an awful lot like Dylan going electric!
• Healthy ecosystems require diversity, not monocultures. That's why there will remain a place for commercial publishing in the face of the self-publishing ideologues no matter what. Besides which, certain kinds of properties are just plain unsuited to self-publishing... and those kinds of properties form a substantial minority, at minimum, of sales. Even within fiction, it's hard to imagine an authorized media-tie-in novel being self-published!
• The Steubenville Shame — perhaps Intransigience? — has some obvious root causes. The most obvious of those causes is a thriving culture of bullying. As disgusting as the gender-based aspects of football-hero-worship in small-town America are, they are just the most obvious expression of bullying from a sense of privilege earned through noncentral means. Really: What does high-school football actually contribute to Steubenville, Ohio (or, more to the point, Cobb County, Georgia — where so many CNN personnel live)? And what are the future prospects of the heroes of Steubenville's High's team... and of the not-quite-heroes on the offensive line?

  One place we could start is by eliminating all interscholastic (and intercollegiate, for that matter) sporting competition. I'm not saying that we should get all organized physical activity out of the schools; I'm saying we should be more concerned with limiting us-versus-them unifying memes to those that do not involve the immediate imposition of physical dominance over others, if we care at all about limiting that sort of thing off the field. Of course, if we don't care about it — and we're willing to sink the money that should be going into classrooms and libraries and laboratories and textbooks for all of the students into locker rooms and stadia that will be actively used (as opposed to merely traversed) by a distinct minority of students — then go right ahead. Just don't bitch too much when the football coach at a research university makes as much money as the top five tenured professors on that campus. Combined. Or when "hazing" gets a little out of hand on the job...

• Copyright reform may, or may not, be in the wind. Admittedly, at least some change is long overdue... particularly since that Gerald Ford-era copyright law was itself over a decade old in its most important aspects when it was passed. My concern is that the Register's own comments to Congress reflect an even greater degree of agency capture by transferee interests — "big media" — than did the unsatisfactory blatherings of her predecessor, particularly concerning "orphan works" and related problems. To quote myself from last month:

  The current debate over copyright, especially as it is on the 'net, uncomfortably resembles the partition of a colony by colonial powers without a voice at the table for the indigenous peoples (or at least not one drowned out by moneyed interests like the East India Company). It seems to me that we've made that mistake a few times before with unsatisfactory results. We really, really shouldn't be repeating it.

  (emphasis in original). I'm not backing down at all from that statement; some of my colleagues thought it was too inflammatory, but I'm starting to think it too mild.

• Related to the copyright-reform issues — but not properly part of, despite its presence in the Copyright Act — there is deserved, increasing skepticism regarding DRM. The real problem with DRM is that it reifies the already broken and untenable sell-the-package meme in the entertainment industry — a meme kept around only by assertion of economic power in the distribution chain that should get a lot more antitrust scrutiny than it does. Print publishing is, perhaps, the best example of this, with the hardcover/trade paperback/mass-market paperback history overlaid with e-books restricted to specific e-readers. The public is being forced to pay for packaging; in fact, the packaging is both a necessary and a sufficient guide to pricing (to well inside a closed order of magnitude), so long as one is looking within the same industry segment. That is, fundamentally, incompatible with copyright, which is concerned with the content and not the packaging. Further, it is at a deep level incompatible with Kirtsaeng, which was concerned with publisher price points being maintained via other aspects of packaging.

On the Meaning of "Sale"

Thanks to a week-long trip to Texas, I'm a bit behind (it's really, really hard to update one's blawg, with citations and pictures with numbers and arrows and a paragraph on the back of each one driving through West Texas). That said, I have a few thoughts regarding Kirtsaeng that seem a bit outside of the general consideration of it.

Kirtsaeng involves cross-border arbitrage of textbooks. Wiley — the publisher — publishes textbooks (especially college-level textbooks for common courses like introductory calculus) in multiple international editions, and prices them accordingly. The guts of the books are identical across editions; the Thai edition of the Hughes-Hallett calculus textbook is essentially identical to the US edition, but is bound differently (sometimes books like this have different problem sets, but I've not examined this one in the most-recent edition). And costs a helluva lot less, which is the arbitrage opportunity. Enter an enterprising Thai student at Cornell, who had copies shipped in — purchased legitimately and for value by family members back home in Thailand — for resale to US students looking to reduce their textbook bills from $110 for the particular edition in question (it's more now) to a much more palatable, if still excessive, $60 (which, I should add, still provides a pretty significant profit margin over the price in Bangkok, for a new — rather than used — book). Naturally enough, Wiley objected, as it is far more interested in maintaining its preferred pricing structure than not.

Wiley's position is founded, at its core, on whether "lawfully made under" the US Copyright Act means lawfully made in the US or some close variant on it. The Court, in a 6–3 ruling, quite properly held that Wiley's position fails, because the Copyright Act is not about protecting price points set in different markets for the same works.

The “equal treatment” principle, however, is difficult to square with a geographical interpretation of the “first sale” clause that would grant the holder of an American copyright (perhaps a foreign national, see supra, at 10) permanent control over the American distribution chain (sales, resales, gifts, and other distribution) in respect to copies printed abroad but not in respect to copies printed in America. And it is particularly difficult to believe that Congress would have sought this unequal treatment while saying nothing about it and while, in a related clause (the manufacturing phase-out), seeking the opposite kind of policy goal. Cf. Golan v. Holder, 565 U. S. ___, ___ (2012) (slip op., at 30) (Congress has moved from a copyright regime that, prior to 1891, entirely excluded foreign works from U. S. copyright protection to a regime that now “ensure[s] that most works, whether foreign or domestic, would be governed by the same legal regime” (emphasis added)).

Kirtsaeng v. John Wiley & Sons, Inc., No. [20]11–697 (19 Mar 2013), slip op. at 15 (all emphases in original).

Rather than further dissect the opinion itself — done by Professor Grimmelmann elsewhere — I want to make a few points hanging around the outside of the opinion.

• Of greatest importance, Kirtsaeng brings US treatment in line with international treatment... and, in particular, with treatment of identical-goods-across-national-borders transactions in Europe. See, e.g., JCB Servs. v. European Commission, No. C-167/04 P (2006) (holding that a manufacturer of small-to-medium industrial equipment, such as forklifts, could not enforce exclusive territories within the EU for otherwise-identical goods and prevent an Irish distributor from providing those goods to customers in Spain, even in the face of an exclusive-territory agreement with a different distributor in Spain). Frankly, this is good law and good economics in any event; that it relates to copies of copyrighted goods is essentially irrelevant.
• In turn, this means that territorial rights are essentially dead; only language rights matter. Perhaps — just perhaps — territorial rights matter until the UK (and certain other countries) reform their libel law and so on, but that has little to do with the copyright aspects.

  Frankly, I think this a good thing for authors, and particularly for authors of commercial fiction. One of the easiest ways for publishers to mess with the accounting has long been through the mischaracterization of income into a different category... and if "foreign sales" are no longer a legitimate category for otherwise identical goods, then there's one less accounting loophole available. Authors would generally be better off forcing a publisher to buy worldwide Language X rights and account for all sales under those rights identically. If, for insurance/libel/blasphemy/whatever reasons, a publisher needs to release a version of a work that is not substantially identical in a particular market (but still in Language X), that should be explicitly negotiated based upon the particular characteristics of the underlying work — not left as an opportunity for import-edition games.

• Speaking of import-edition games, though, this is going to make it a bit easier for publishers to play games with out-of-print clauses. After all, if the publisher can import a cheap printed-in-India edition for its own warehouse and thereby keep the book "available for sale," why wouldn't it? Taxes, shipping, etc. on 50–100 copies won't be extensive, and that can (and has, and will) be used as part of a publisher's negotiating leverage to attempt to retain — or, more frequently, obtain — e-book rights to older works, particularly if the author has a newer work at issue. Holding rights hostage has a long history in the entertainment industry; since I've already seen precisely this strategy used, I expect it to become more widespread now that publishers don't have to worry about undermining their antiarbitrage position (since that position is now invalid as a matter of law, nothing they do will undermine it further).
• Keep in mind that the facts in this particular case relate to the work-for-hire nature of textbooks, and therefore may have some difficult implications in the freelance market. Wiley was in the position of having unitary copyright rights in the textbooks imported by Mr Kirtsaeng and at issue here; things would be rather different for, say, UK editions of the Harry Potter books.
• Together, these last three points make clear that as to copyright the market in e-books is now worldwide. Copyright law no longer provides a shield against a UK e-book vendor selling into the US market... including full-blown marketing campaigns, etc. Instead, any restrictions will be contractual (or, in the worst case, libel/blasphemy/etc.) in nature, and cannot be enforced against third parties without some real shenanigans. Of course, shenanigans are the entire basis of international trade in entertainment products, so this is not quite the same thing as immediately proclaiming a free market!

Later this week, more on the elephant in the room: Treatment of transfers as sales... or as licenses.

Erosion

Well, at least it wasn't worse.

Once upon a time, in the 1970s, there was a somewhat subversive sitcom concerning a rather bigoted factory worker named Archie Bunker, his dingbat wife, and his semiintellectual — but meatheaded — daughter and son-in-law. One particular episode involved a strike by Arch and the guys, at the end of which they got a small raise. After Arch left the room in the last scene proclaiming victory, said meatheaded son-in-law pointed out that even though they got a raise, the unionized workers would end up effectively earning less because the raise was less than inflation.

I feel like that's what just happened to authors regarding the awful contracts Random House tried to impose for its e-book imprints (warning: some four-letter words used... not enough of them). After considerable public pressure — and, for the benefit of those idiots who don't know the industry, it was necessary public pressure to get that particular publisher's hierarchy to agree to move, and it came only after more-than-reasonable attempts to do things quietly behind the scenes — RH has agreed to give authors their less-than-the-rate-of-inflation raise. (I'm linking to Mr Scalzi's blog not because it's definitive, but both because he's the president of SFWA — the writer's group that actually forced the change — and because the links within his various pieces will take you to a fairly full, documented account of the entire kerfluffle. Then, too, anyone going there from here will not even make a speedbump on his bandwidth.)

If I thought an organization as infused with Büroismus as is RHUSA could pull off something this Macchiavellian without leaving substantial evidence of the plot, though, I'd think of this as a big planned win for RH.

• If you believe the "all publicity is good publicity" meme, this was free publicity for RHUSA's new e-book-originals imprints. That publicity is going to long outlast the controversy.
• By climbing down under public pressure, RHUSA is going to leave the (false) impression that the underlying contract itself is largely negotiable. It is not; many of the worst terms in that contract, such as the overreaching warranty-and-indemnity clause that subjects authors to a claim of "breach" for mere assertions of foreign libel or religious blasphemy law, didn't even get mentioned.
• Note, too, that none of the decisionmakers at RHUSA came out of editorial. That's a really bad sign for the future; it's the equivalent of having two decades' worth of cars designed by the accounting and sales departments... and we know how well that turned out.
• Worst of all, this reifies "25% of net" as a "market reasonable" e-book royalty rate when an advance is offered... and 50% when it is not. These are not appropriate or fair rates, regardless of the purported "risk" borne by the publisher. Forget for the moment that the largest capital infusion in a publishing transaction is the value of the intellectual property provided by the author (I realize that Austrian-school economists don't accept that, but both the real world and most other economists do — and the accounting rules carry IP rights as capital assets, which should be a big hint), and that the author is engaging in a huge risk by creating that piece of property him/herself. The actual, properly-allocated cost bases indicate that the minimum rate of return to the author should be 50% of gross on an electronic publication. This set of rates is the equivalent of the bad union contract that Arch and the guys agreed to.
• Actually, that previous point may be optimistic in many ways, for a simple reason: It's not just the rates and advances, but the definition of "net" that is at issue. There was some movement, but only from the most egregious (and easily sacrificeable) extremes. The definition of "net" still bears a disturbing resemblance to "net profits" as conceived in Hollywood, and the initial proposal was in concept (not necessarily numerically, due to the different cost factors in publishing versus film/TV) uncomfortably close to that definition. It will be really interesting to see the documentation provided to back up deductions from gross the first time one of these deals gets challenged for inaccurate accounting a couple of years down the road...

And now, off to the fifteenth century for a week or so.

A Really Big Shew

The Ninth Circuit just set up a circuit split with the Sixth Circuit on a critically important matter in copyright law, and fair use specifically, regarding short "quotations" in other works. This is a matter that I hope the Supreme Court takes up... because even if it gets it wrong (for some value of "wrong"), there's substantial value in uniformity, and the only way to correct the statute is to correct it based upon a uniform mistake.

There's a commercial touring musical called Jersey Boys about Frankie Valli and the Four Seasons, and their emergence to national pop-music prominence during my misspent youth. Part of the show is a seven-second-long clip from The Ed Sullivan Show that is shown with purpose of establishing newsworthiness and a real-world contextual link to a specific point in the group's career — their status on 02 January 1966. This being the entertainment industry, the current rightsholder in The Ed Sullivan Show sued. The play's producers defended by claiming fair use. The district court granted summary judgment — and awarded attorney's fees — to the play's producers on their fair use defense. This being the Ninth Circuit, the result on appeal was always going to be interesting and unpredictable.

Congress’s guidance, however, has not always been helpful. Many fair use cases still manage to approach “‘the metaphysics of the law, where the distinctions are, or at least may be, very subtle and refined, and, sometimes, almost evanescent.’” Fortunately, this is not one of those cases. As our application of the statutory factors will confirm, Dodger’s use of the clip is undoubtably “fair.”

SOFA Entertainment, Inc. v. Dodger Prods., Inc., No. [20]10–56535 (9th Cir. 11 Mar 2012), slip op. at 7–8 (citations omitted).

The real dispute here is not over "transformativeness" — there is little question in the context of the musical that the clip is an informational touchstone that is referential more than anything else. That implicates the real cause of the dispute: The continuing problem with distinguishing quantitative use from qualitative use. This has been a problem ever since the Supreme Court, in some remarkably imperceptive rhetoric, discounted quantity as determinative in Harper & Row v. Nation Enters., 471 U.S. 539, 564–65 (1985):

Amount and Substantiality of the Portion Used. Next, the Act directs us to examine the amount and substantiality of the portion used in relation to the copyrighted work as a whole. In absolute terms, the words actually quoted were an insubstantial portion of "A Time to Heal." The District Court, however, found that "[T]he Nation took what was essentially the heart of the book." 557 F. Supp. [1067], at 1072. We believe the Court of Appeals erred in overruling the District Judge's evaluation of the qualitative nature of the taking. See, e.g., Roy Export Co. Establishment v. Columbia Broadcasting System, Inc., 503 F. Supp. [1137], at 1145 (taking of 55 seconds out of 1 hour and 29-minute film deemed qualitatively substantial). A Time editor described the chapters on the pardon as "the most interesting and moving parts of the entire manuscript." The portions actually quoted were selected by Mr. Navasky as among the most powerful passages in those chapters. He testified that he used verbatim excerpts because simply reciting the information could not adequately convey the "absolute certainty with which [Ford] expressed himself"; or show that "this comes from President Ford"; or carry the "definitive quality" of the original. In short, he quoted these passages precisely because they qualitatively embodied Ford's distinctive expression.

(italicized run-in heading in original; record citations omitted).

The Ninth Circuit's holding depends almost entirely upon the transformativeness issue, although it also tries (and ultimately fails, but that's largely because words are so unsuited to the task) to distinguish allusion from quotation:

Second, SOFA contorts the Supreme Court’s use of the phrase“distinctive expression” in [] Nation Enterprises to give the false impression that Mr. Sullivan’s “trademark gesticulation and style” is copyrightable. Copyright only attaches to an original work fixed in a tangible medium of expression, never in the underlying ideas or facts. The Court used the words “distinctive expression” to explain that defendant had copied sections of President Ford’s memoirs that contained Mr. Ford’s writing, as opposed to the events he was discussing.

It is Sullivan’s charismatic personality that SOFA seeks to protect. Charisma, however, is not copyrightable.

(slip op. at 10, citations omitted, paragraphing in original). This analysis, however, proves too much, particularly in the context of the earlier analysis of transformativeness.

Dodger references the Four Seasons’ performance on the January 2, 1966 episode of The Ed Sullivan Show to mark an important moment in the band’s career. At that point in rock & roll history, many American bands were pushed into obscurity by the weight of the “British Invasion,” which was kicked off by the Beatles’ performance on The Ed Sullivan Show. The Four Seasons, however, thrived. Being selected by Ed Sullivan to perform on his show was evidence of the band’s enduring prominence in American music. By using it as a biographical anchor, Dodger put the clip to its own transformative ends.

(slip op. at 8) That this analysis is entirely inconsistent with the misbegotten Dr. Juice opinion (Dr Seuss Enters. v. Penguin Books USA, 109 F.3d 1394 (1997)), which under circuit precedent should be controlling, is never acknowledged.

When the Ninth Circuit confirmed not merely the summary judgment, but the award of attorneys' fees under the Fogerty factors, in SOFA, it demonstrated an implicit conflict with the Sixth Circuit's varied, and ever-shrinking, holdings on sampling of musical recordings, such as that in Bridgeport Music, Inc. v. Dimension Films, 383 F.3d 390, 398–99 (6th Cir. 2003) (footnote omitted).

To begin with, there is ease of enforcement. Get a license or do not sample. We do not see this as stifling creativity in any significant way. It must be remembered that if an artist wants to incorporate a "riff" from another work in his or her recording, he is free to duplicate the sound of that "riff" in the studio. Second, the market will control the license price and keep it within bounds. The sound recording copyright holder cannot exact a license fee greater than what it would cost the person seeking the license to just duplicate the sample in the course of making the new recording. Third, sampling is never accidental. It is not like the case of a composer who has a melody in his head, perhaps not even realizing that the reason he hears this melody is that it is the work of another which he had heard before. When you sample a sound recording you know you are taking another's work product.

Of note, the Sixth Circuit opinion in Bridgeport Music (or, at least, this Bridgeport Music — it's a frequent litigant) never considers fair use at all. On the strength of the rhetoric, though, a fair use defense would have been unavailing (which is not surprising, considering the continuing ire at the Supreme Court in the Sixth Circuit bar over 2Live Crew and the undoubted filtering of that ire into the court itself).

So, what does this mean for authors? Really, at the moment, it's hard to say more than that SOFA implies — in a fashion that is not definitive — that:

• The ridiculous license fees and permissions regimes demanded by ASCAP, BMI, and that ilk for short quotations used in works of fiction (particularly as chapter headings) are in trouble, as they should be. This could get even more interesting, of course, if authors "sample" performances of the respective lines/verses in their e-books...
• Characterizing the purpose of the use is even more important than previously understood. It's approaching the import of market definition in antitrust law. My major concern here is with retconning and hindsight statements of purpose.
• There is no enforceable, explicit minimum threshold beyond which fair use is either always presumed or never available. This has interesting implications for the various aspects of the Google Book Search litigation, and the Hathitrust summary judgment currently on appeal in the Second Circuit.
• We'd all be better off enlarging the Federal Circuit and sending all copyright matters there, just like we already do with patent matters. This is an entirely needless circuit split, and given the Supreme Court's calendar and the briefing schedules on certiorari the earliest we could expect a decision is May or June of 2014... and that's unduly optimistic, assuming that all briefing schedules will be met and the Court issues a prompt decision to take the matter on cert. The October 2014 term is far more likely, meaning that a decision could come by June 2015.

Not USDA Approved

Tasty link sausages filled with indigestible chunks. Or, at least, they're indigestible unless you think about them.

• One of the major problems with intellectual property debates is the masking of who the speakers are, and what their interests are. One of the obvious examples is the substitution of the RIAA, and of ASCAP and BMI, as the primary voices concerning contemporary/popular music rights... when the former represents pure transferees, and the latter doesn't represent many of the artists (only the songwriters/composers at best, and de facto only the corporatized ones). Things are even worse in publishing, with most people listening to the publishers about the interests related to textual works; when authors' groups speak at all, they represent niches of the authorial ecosystem.

  That longwinded introduction, though, concerns just the obvious problem. The next-higher level of abstraction is even more disturbing, particularly when considering cultural values: Who actually owns the various corporate actors in our little immorality play? This is not to say that only 'murikans should be speaking on and/or have access to 'murikan markets related to intellectual property — far from it. It is only to say that it should be transparent.

• At a lower level of abstraction, there's the question of whose voices should matter. The Grauniad manages to screw up that portion of the conversation with an article proclaiming the demise of the "creative classes" that makes two fundamental errors. First, "creative" and "class" go together about as well as "honest" and "politician": Although there are exceptions, particularly regarding the amount of time that can be devoted to creative activity, creativity itself is not very strongly class-linked. Second, the article misidentifies "creative" to include the skilled craftsmen and tradesmen who form parts of creative teams producing large projects like major motion pictures... and bankers. Sorry, but creative bookkeeping is not the preserve of the creative classes.
• But that's better than certain assholes in the House of Lords who are trying to torpedo libel reform by attaching amendments to control some of the ickier activities of the British press... that is, subverting the very purpose of libel reform, probably because they're afraid of personally becoming targets of the tabloid press.
• Then there are the inexcusable, bad-for-everyone structural issues with distribution of books. Of course, hearing a publisher complain about this is a bit much... especially given Mr Dale's political record.
• President-and-Dictator-for-Life of SFWA John Scalzi (you don't really think you're getting off the hook by just refusing to run again, do you?) is far too nice and circumspect regarding the contract offered by a "new" Random House imprint. And I'm entirely serious when I say his screed is too nice. I would have mentioned things like "unfair trade practices," "intellectual dishonesty," and so on... but then I'm a high-falutin' intellectual who knows damned well that the antiintellectual S&M hierarchies, and the even-more-antiintellectual beancounter hierarchies, at the media-conglomerate publishers wouldn't listen — and wouldn't understand the objections if they did listen.

  Sam Goldwyn and Louis B. Mayer are not positive role models. This is the monopsony problem raising its ugly head again: That the media conglomerate publishers have sufficient market power to believe they can get away with this implicates antitrust law, but antitrust law enforcers have (for the last three-plus decades) restricted their visions to restriction of supply instead of restriction of demand.

From a Garret Near Holborn

• A columnist at The Economist offers his opinion on the future of bookstores against a backdrop showing the prior location of one of my favorite London hotspots. "Prospero" (a truly ironic pseudonym for this particular column) remarks that

  To survive and thrive, bookstores should celebrate the book in all its forms: rare, second-hand, digital, self-printed and so on. Digital and hybrid readers should have the option of buying e-books in-store, and budding authors should have access to self-printing book machines.

  amidst his concerns on "monetising" the store, including possible membership fees and/or admissions charges for doing things other than sheer browsing... and perhaps even for that. Of course, this neglects one of the main problems with bookstores — and the Foyles location on Charing Cross Road is far from immune to it: Difficult access. In the long run, the real advantage of Borders and Barnes & Noble and Books-a-Million in this country has been their separate parking lots. That's not much of a possibility in London, given the congestion tax and fees that keep real people from driving in the area. But books are heavy, and walking in the rain to the nearest Tube station with a flimsy plastic bag full of a hundred quid or more of books is not inviting... and neither is a walk back to Birkbeck, for that matter.

  In the end, the combination of "not being out of stock" and "don't have to schlepp the stuff home" is one of the major advantages of online retailers. Physical bookstores need to recognize that — particularly in less car-obsessed cultures — they can't compete with those advantages and should instead emphasize their own, like social interaction and actual shelves to browse.

• Then there are the perils of the midlist. This isn't supposed to happen to anyone. It's especially not supposed to happen to those who wrote one of the dozen or so best American novels of the 1990s, regardless of commercial category or commercial success. If it was going to happen, though, it's not much of a surprise that it's one of the media-conglomerate publishers screwing the pooch, especially in the face of cable-TV options (which, based on anecdotal data, do at least as much for sales as do theatrical releases). Dr Russell's books are all still in print... of course, publishers these days try desperately to avoid reverting rights, but that's a not-entirely-separate issue.

  The key point is this: At acquisition time, a publisher is attempting to predict what will actually sell at a given, kept-secret, acceptable velocity at least 18 months in the future. That might be theoretically possible, with about a 30% accuracy rate, in certain kinds of specialist nonfiction fields and/or for certain kinds of never-varying crap from certain highly branded authors (like J___ P___, N___ R___, and D___ S___). Applying memes from those areas to archly literary fiction is silly and stupid, and reflects all too much the lack of a science background among publishing management (and, for that matter, the lack of a scientific basis for their assertions and conclusions). It's similar to having the physics department do the tenure reviews for developmental biology... and it's that good only if one stays within the sciences; in this instance, given who the management at Random House actually is, it's more akin to teaching evaluations and tenure decisions being made for a promising developmental biologist by the theology and comparative religion faculty without even having read her papers.

• I'm shocked, shocked to see that the Sons of the Revolution literally are the sons of the revolution in the People's Republic of China. Who would have guessed that a culture with an even longer and stronger tradition of primogeniture than European nobility would revert to that default once its borders were secure?
• Meanwhile, a 0.03% tax on financial-instrument transactions has at least a chance with some of the saner Heffalumps. Of course, there aren't a lot of them; perhaps it can be recast as an "exchange enablement fee", since it's transaction-based instead of results-based? There's not much potential for a drag on the market (although seeing Wall Street in drag would be entertaining indeed)... and those claiming that it will be a competitive disadvantage should remember two things: That a similar fee is being adopted in major markets everywhere else in the near future, and that there are some markets in which the race to the bottom is literally a race to the bottom.
• Consider the problem of having a celebrity's name, or a dead author's name, as one's natural (given) name. Actor's Equity has a stupid rule that nobody may ever reuse a name once it has been used on a playbill, thus explaining some of the silly stage names adopted by people (well, almost as much as evading bigotry does, anyway). There's no such requirement for authors. Can someone who shares my forename, despises all dimunitives of it, has no middle name at all, and has the surname "Dickens" write under his own name, or must he choose a pseudonym? (We'll pretend for a moment that, after decades of bullying by both teachers and students, he hasn't gone through a name change voluntarily.) The IPKat notes an opinion that actually goes into the reasons why, and why not, that allows a corporate natural name to continue in trade against a trademark claim. Of course, this also goes into pseudonym selection...

The Arts Set

Rather a strange weekend around here, but that shouldn't surprise anyone.

• Diversity in the arts is a good thing. It's how we get To Kill a Mockingbird actually being read by those who need to read it; it's how District 9 can say anything at all, let alone how well; I could go on, but I won't. But diversity in the arts — especially the performing arts, and especially socioeconomic and not just racial/gender/religious identity — doesn't just happen; it requires both money and attention. And, too, it requires standards, not just approval because it's diverse. To say the least, we haven't learned how to do any of this yet... or at least not do it well.
• Then there's the translation problem. An awful lot of what would otherwise be "diverse" material is unavailable, or at least less available, because it's not in a language (or sensory envelope) that is accessible to its audience. On the one hand, one must shrug one's shoulders a bit and note that the arts are the arts, and that neither common language nor common sensory envelope is any guarantee that the audience will "get it" in any event. On the other hand, consider the course of late-twentieth-century literature if the Spanish-language magical realism movement had not been (selectively) translated into English, often with dubious fidelity. Or, for that matter, if a Czech playwright had not given English speculative fiction the word "robot"... by way of a Jewish Russian immigrant professor of biochemistry.
• A certain Harvard-and-Indiana-trained anthropologist of my acquaintance discusses why some Interminable Fantasy Series are train wrecks, such as the one she discusses; for that series, one could saw the spines off of every volume, lay the pages end to end, and never reach a conclusion. At the craft level, I think her analysis is highly sound. At the literary level, it's a necessary-but-not-sufficient description of the symptom... without going into the cause.

  The cause is the missing element in her essay. At various points in the essay, she discusses both character development and plot mechanics in some detail, and gives some passing attention to the influence of setting (as examples of setting's influence, consider The Left Hand of Darkness and 1984). But this is commercial fiction, so thematic material — especially thematic closure — can't possibly matter, right? Wrong. Ultimately, the difference between a great work and a lesser one is the integration of the four elements of fiction (character, plot, setting, theme); and the difference between a merely not-great work of fiction and a train wreck is usually the author's failure to match the thematic material — and, in particular, the pace of the thematic material's development — to the remainder of the work. "Pacing," after all, isn't just about plot; that's why we often criticize works for having "anticlimactic endings." All four elements need to develop throughout a work of fiction for it to be a successful work of fiction. That development won't necessarily be seriatim in equal increments... but at certain major points (e.g., the end of each volume of a multivolume work) they should be resynchronized, or pretty damned close to it.

  The objection I can almost hear from the crowd is that "commercial fiction only needs to entertain, and doesn't need thematic elements." Leaving aside that "only needs to entertain" is a thematic paradigm, this objection mistakes what high school English teachers, and too many undergraduate instructors (especially those who have no understanding of commercial fiction), call "theme": The arch, high-falutin' stuff that is accepted by the Establishment, ordinarily restricted to the literary masters and testing materials, that usually ends up just short of pontification in contemporary works. After all, defining one's audience for that entertainment is also thematic material... and one will end up with vastly different works to entertain seventeenth-century, largely illiterate London playgoers and to entertain mid-twentieth-century Broadway impresarios. That's (part of) the difference between Romeo & Juliet and West Side Story.

Diseconomies of Scale

If there's a theme today, it's how limited-purpose "efficiencies" usually aren't.

• Gee, biodiversity results in greater and less-expensive agricultural productivity. Who would have guessed that millions of years of evolution could produce a more-efficient outcome than three decades or so of human technology imposed on an environment we didn't understand in the first place? That's not to say that all aspects of modern agriculture are bad; it's only to say that — just like all other attempts to impose monocultures on nature have proven — turning entire counties into soybean/corn/wheatfields or lettuce plantations is in the long run a less-efficient (and more costly) means of maintaining agricultural productivity. Not to mention that it creates the "all of the eggies in one basket" problem that is lurking under this article, but never reached.

  Sadly, overconcentration has almost nothing to do with agricultural productivity, or even efficient processing at plants (grain elevators aren't more efficient when there are sixteen of them with the same grain than two). It's much more about the nonagricultural factors of "efficient" distribution based upon petroleum-product-powered product (and, for that matter, customer) movement. But that's for another time.

• This is a problem disturbingly similar to the relationship among authors, publishers, especially distributors, and readers (auf deutsch)... especially when reaching outside of core competencies to apply "efficiency" elsewhere. And that's efficiency from the end-user's viewpoint, too!
• One of the lessons that it took the nascent TV industry about a decade to learn — and then had to relearn for cable — is that the visuals on a full-sized movie screen don't work so well when reduced to the small screen (and that's aside from color-to-black-and-white issues, and resolution, and...). This is at least equally true when going from print to e-book packaging. Leaving aside for the moment the artistry and effort of high-end binding, just consider size for a moment. The standard thumbnail cover size at the Big Brazilian River is 160x160 pixels. To put that in perspective, that's less than 2cm x 2cm at standard commercial resolution, on a pixel-for-pixel basis. Even the very largest covers on Kindle books are smaller than a mass-market paperback on a pixel-for-pixel basis. E-book covers require different design concepts than print covers... although you'd never know it from developing e-cover design "standards."
• It would be really nice if the people shrieking over various e-book issues would get their facts straight before shrieking. It's as if election season never ended. Salon — as is distressingly common — manages to get almost all of its facts wrong when describing a recent lawsuit by independent booksellers to eliminate DRM from e-books. In no particular order, these include up-front claims that all "big six" e-books have DRM (which, as the author later acknowledges, is untrue concerning the Tor unit of Macmillan); that this was adopted solely through collusive agreements with Amazon initiated by the publishers; that it takes a "determined" reader to remove DRM, or even a "marginally competent" one; that DRM is about piracy; and so on.
• DRM isn't about piracy. DRM is about the same thing as the crappy packages full of unwanted channels that cable (and satellite) providers force down consumers' throats: Vendor lock-in. Cablevision — ironically, one of the pioneers of this misbegotten practice — is suing Viacom for allegedly "forcing" it to buy big packages of channels and give them directly back to consumers. Gee, this sounds like straightlining to me (and I'll gladly describe specific instances of that — and make specific accusations of fraud with names attached — over a tasty beverage some time; I've got the paper to prove it all, although the statute of limitations is long gone so nothing can be done about it).