21 December 2013

Weekend Update Link Sausage Platter

My value of "weekend" is "two more workdays until Monday."

  • This sure beats "meaningless" hand-waving.
  • "The time for mere 'deliberate speed' has run out..." (Griffin v. School Bd. of Prince Edward Cty., 377 U.S. 218, 234 (1964)). One must remember that it takes a helluva lot more effort to desegregate a school system built on overt discrimination than it does to change marriage forms available through a county clerk, even in Utah (PDF)...
  • ...or to disclose enought data to see whether the bar exam is itself discriminatory or perpetuates racial disparities (PDF). The key failing of each of these three relics of discrimination is that they are all based upon unexamined assumptions. Although I don't share Professor Sander's politics, I do share his implicit goal: Basing policy and action on fact and not on ideology... and that's not possible (or well-served) when the facts are hidden behind bureaucracy.
  • Meanwhile, there's more-productive movement on the (probably unconstitutional) state-regulation-of-lawyers front. "Tradition" isn't good enough to make an exclusionary practice constitutional... especially in the face of the inherent powers of courts to regulate those who appear before them, regardless of formalities regarding "where" they are licensed. After all, it doesn't seem to stop drivers from Georgia from causing traffic problems near DC tourist attractions... or drivers from California from causing traffic problems just about anywhere. More to the point, state regulation of medical professionals has repeatedly proven inadequate — to the point that virtually all competency testing is now purely national in scope. Perhaps the key point demonstrating the problem is this: A plurality, and perhaps majority, of publishing contracts select New York law and a venue in New York for resolving any disputes; similarly, a plurality, and perhaps majority, of film/television contracts select California law and a venue in California for resolving any disputes. This holds true even when none of the parties are "from" those respective states — Delaware corporations, Nevada llcs, Oregon authors and authors' estates, Missouri playwrights, Connecticut actors... and, even more to the point, no counsel for either side in the transaction licensed (or maintaining an office in) New York or California respectively.

    This is strict protectionism along the lines of the Smoot-Hawley tariff, which only deepened the Great Depression. Even if it isn't unconstitutional, it's a dumb idea.

  • The irony that this piece on the need to establish and maintain a commercial/"professional" approach for musicians appears in a venue that frequently does not pay its contributors seems to have escaped just about everyone... but that does not actually undermine its argument.
  • Then there's Pandora being shoved back in the box: A judge has ruled that an intermediary's sublicensing agreement (in this instance, BMI's sublicensing of entire music catalogs to Pandora) does not prohibit a first-order licensor from from withdrawing the sublicensing right from the intermediary during the term of the sublicense... and thereby effectively terminating the sublicense. This is actually very good news for the true licensors — the songwriters — because, to be charitable, BMI is captured by those first-order licensors (the labels and "publishers") anyway, but provides a highly effective litigation shield against claims of misconduct and underpayment to the songwriters. There's a further implication in there, too: That the songwriters might have the right to withdraw their blanket transfers from the labels and "publishers". I emphasize "might" for a simple reason: The BMI licenses are, in part, structured the way they are due to an ongoing antitrust consent decree against BMI (and its partner-in-crime ASCAP), and the songwriter/label-or-"publisher" relationship is not.

    In first-year contract law, one of the principles studied (with an answer of "it depends, and even more than in any other aspect of contract law") is the effect of unforeseeable circumstances on a contract. There are at least two aspects of unforeseeability underlying Judge Stanton's reasoning: The technological developments and the business-model/structure developments that have occurred since the vast majority of the songwriter/label-or-"publisher" deals were made, and certainly since the antitrust consent decrees. Judge Stanton's ruling is functionally a rejection of a variety of "dead-hand control" (probably "dead-brain control," because to at least some of us outside of the music industry in the 1980s and later anticipated the fact — if not necessarily details — of forthcoming change; see, e.g.,, William Gibson, Neuromancer (1984)) over commercial transaction systems that were not foreseen by the parties at the time of contracting for related commercial transactions.