Spent the day dealing with import-export issues, so this is late. Not overdone, though, and the lateness in any event allows for the final, chunky, garlicky, heavily spiced link sausage on this platter.
- The irony of an article decrying the self-evident, rampant inaccuracy of wikithingies appearing where it did appears to have escaped everyone involved. That said, there's much to ponder there aside from the irony... such as the distinction between "reference source" and "reliable reference source" inherent in the uncurated wikithingy model. Put another way, relying upon anonymous dilletantes with undisclosed agendas to maintain credibility seems rather like relying upon sitting politicians to engage in effective campaign finance reform; there will be individual exceptions, but the vast majority will (at best) silently undermine the stated purpose in favor of their own interests. Perhaps I'm jaundiced because I've never had a satisfactory dealing with the "controlling" foundation, ranging from blatant refusal to even acknowledge that it had been sued and served with process (resulting in an inability of everyone else to force the case into the correct court, and ultimately costing about $75,000 in needless legal fees and forfeiture of the best counterclaim) to ardent refusal to acknowledge that an "editor" defaming one of my clients was, umm, lying for the purpose of advancing "his" (yes, I know exactly who you are) vendetta against my client. And that's just the stuff that's well-established and stale enough to disclose even that much. Perhaps I'm more jaundiced because "articles" concerning matters on which I have scholarly expertise are so overwhelmingly wrong, leading me to distrust everything else.
- As a specific example, consider Salman Rushdie. Better yet, consider Salman Rushdie from the point of view of someone who was in the UK at the time, and familiar with the demographics and politics of the subcontinental-expatriate community; was professionally concerned with that particular outside government; had actually read the bloody book before the fatwa issued; and had a scholarly interest in the literature of suppression of literature. But don't compare it to the wikithingies (at various wikisources), because you'll never come close to it.
- But perhaps better a wikithingy than a film critic. Of course, the irony that the measuring stick is the purported critical consensus — how much more favorable than the "average" critical perception one is — seems to have escaped the writer(s) of the article... and it's also rather disturbing that being "more critical than the norm" is faintly considered "too mean" for crap coming out of H'wood.
- The Second Circuit Court of Appeals has a serious problem: It's in New York, and covers New York, and frequently is bound by the arrogance and idiocy of New York law. I suppose that I should accept the half-a-loaf provided by its reversal of one aspect of a case involving a scheme to defraud under the cloak of "tax issues" and "business structures," but that's not nearly far enough.
Not so very long ago, a Canadian publishing behemoth with monopoly power over the industry segments in which it operates "reorganized" its structures so that it's "really" a Swiss SA. It even discloses — sort of — in its contract with authors who think they are contracting with a New York-based publisher that they're contracting with a Swiss SA that may choose to "delegate" certain things to the New York publisher... like everything that the author cares about except the money. Specifically, the Swiss SA treated all of the publishing arrangements as sublicenses... which, naturally enough, were at submarket rates. Care to guess who was getting screwed? That's right: The authors. <SARCASM> I'm shocked — shocked, I say — to find dodgy accounting and evasion of responsibility in the publishing industry. </SARCASM> In any event, some authors eventually sued, and the trial court judge dismissed their complaint. Today, the Second Circuit reversed in part.
The amended complaint identified the specific contractual provision at issue, and alleged how defendants breached that provision: “[t]he claimed 'license' from Harlequin Switzerland to Harlequin Enterprises, in the amount of 6% to 8% of the cover price of the works, is not equivalent to the amount reasonably obtainable by Publisher from an Unrelated Licensee for the license or sale of the said rights.” Further, the amended complaint alleged that “[t]he amount reasonably obtainable by a publisher from an unrelated licensee for the license or sale of the said rights is, upon information and belief, much higher than 6% to 8% of cover price and is at least 50% of net receipts.”
Keiler v. Harlequin Enters., No. 13–1753 (2d Cir. 01 May 2014) (PDF), slip op. at 11 (citations omitted, typography corrected). This was sufficient to send the case back to Judge Baer for further proceedings in the trial court.
What went unremarked upon — indeed, probably unnoticed — is that there's a grievously flawed fundamental assumption behind the support in New York law for dismissing the other three counts in the complaint, all of which are more-traditional "black letter" breach of contract claims. The author-publisher relationship is a business-to-business relationship. That means not just that consumer protection law doesn't apply; consumer protection law would arguably have voided this particular arrangement, even under the rather generous-to-businesses view of New York's consumer protection law, and at minimum would have required discovery and proceeding to summary judgment. No, the problem is that New York contract law is particularly obstinate, vicious, and unrealistic in formally presuming that all businesses are "sophisticated" in their contract negotiations, both as to business conditions and as to the legal implications of the document... and that it is virtually impossible, short of (and sometimes with!) a formal admission of intent to deceive, to overcome that assumption. This assumption is, functionally, the last gasp of mercantilist economics in the common law of contracts. Unfortunately, only the New York state courts and/or legislature can change it... and if they try, there will be so much lobbying and litigation that nothing will happen. Ever. In short, in this instance the law is indeed an ass. The Second Circuit ruled as it was probably bound to rule, because the burden of proof on fraudulent-inducement-like claims in business-to-business transactions is so high that judges cannot conceive of an actual set of facts that would support the claim — the test on a motion to dismiss.
That said, though, I look forward to the conniption fits that will be coming from the publishing industries... because the general principle announced here applies to a much wider variety of all-too-common publisher (mis)conduct than one might believe. Perhaps I'll have a slice of Schadenfreude Pie. A large one. I will also smile at the self-congratulatory backslapping from some of the plaintiffs'-side lawyers in Keiler (not, I should specifically note, the lead counsel, who generally cares and generally knows what he's doing), but not perhaps for obvious reasons. The nonobvious reasons are buried in settlement discussions and related documents from many years in the past... and will stay there. Forever.