22 May 2014

A Better Grade of... Tinfoil?

If I can't put on the Ritz (I'm not in the mood for oversalted crackers in the morning anyway), I'll put on my tinfoil hat. Just because you're paranoid doesn't mean they're not out to get you.

  • A Salon regular has "quit" Amazon alleging "monopolistic tactics". Gee, didn't we just have an antitrust case finding that Amazon's "opponents" — Apple and the big New York-based commercial publishers — were liable for monopolistic tactics? How about monopsonistic tactics regarding author compensation, and rights, and the subject-matter actually being published? Or monopolies elsewhere in publishing, such as the distributor system (in which there are even fewer players than major commercial trade publishers) and chain bookstores? My point here is not that the Big Brazilian River is an unsullied good; I have a lot of problems with Amazon's conduct and its very business model. It is not, however, appropriate to single out Amazon as the sole bad actor in this Ed Wood-directed farce. Such an approach by private critics isn't just arrogant and ignorant — it's self-defeating. Ms Miller is merely evading an Amazonian crocodile while the piranhas nibble at her literary toes.
  • The IPKat notes that the European Advocate-General (equivalent to, but more influential/powerful than, our Solicitor General) has advised the Court of Justice of the European Union that most parodies are not copyright infringements, but some particularly offensive ones are. At the doctrinal level, this isn't that surprising an opinion — not because copyright law is so different in Europe and the US (at this level of abstraction, it isn't), but because Europe lacks a critical contextual brake on copyright law present in the US: The First Amendment. The idea/expression dichotomy is so much more important here (and the "line," such as it is, is drawn where it is here when the matter is even discussed) due to the freedom-of-speech paradigm that has superior legal standing to the Copyright Act... and, indeed, arguably to the Intellectual Property Power that enables the Copyright Act. At the practical level, this isn't that surprising an opinion, either, because US courts screw it up when they're sufficiently offended by a parody: don't mock the judiciary (which, although it's good practical advice, is utterly inconsistent with the then-recent binding Supreme Court precedent)!

    At the doctrinal level, the Advocate-General's opinion appears to reject the inept, and largely indefensible, distinction made in 2Live Crew between "satire" and "parody," but the writing of the Advocate-General's opinion is a bit less clear than desirable and the rejection appears to be by implication. The opinion (¶¶ 59–88, and especially ¶¶ 61–64 and 84, auf Deutsch) appears to reject Justice Souter's difficult-to-defend a priori proclamation that a parody must target certain limited aspects of the original work from which the parody is taken to have any protection from a claim of copyright infringement. Instead, the Advocate-General sees "parody" as protectible with a much broader range of acceptable targets, including — as in the work that is at issue — the political/free-speech-even-under-European-conceptions humor and serious commentary inherent in certain radical changes in context.

    Procedurally, the Advocate-General's opinion is just a guide for the Court; it must engage with, but not necessarily agree with, the Advocate-General's opinion. This is the equivalent of the Solicitor General's brief as submitted to the Supreme Court (and it should be called that, but European legal procedure — especially when importing a lot of civil-law aspects — tends to be both ambiguous and intellectually dishonest in what it calls different parts of the process), and is therefore no more than pretty reputable, persuasive authority. It doesn't bind anyone. It is, however, a pretty good indication of which direction the whoopee cushion is blowing.

  • In an even more intellectually challenging vein, I recommend that authors strongly consider reading Professor Levitin's review essay of six books on the 2008 financial crisis and its fallout (PDF, free download). Unlike most law journal articles, it's written in clear English without resort to a lot of jargon or extensive, eye-glazing as-we-all-know recitatives on basic principles. This essay is important to authors — indeed, to all content creators whose work is in any fashion considered under copyright — for two reasons. First, understanding the substance of Professor Levitin's discussion is important for everyday life. Authors have mortgages too... or, if they're renting or living with relatives, they're affected by someone else's mortgage. Authors have to consider cash-flow problems, and timing-of-payments problems, more than do most entrepreneurs. Don't kid yourselves: Both legally and practically, authors are entrepreneurs, engaging in long-gestating efforts to refine and exploit their intellectual property. That they don't have the attention of venture capitalists, or the Small Business Administration (which is barred by law from supporting anything in/related to publishing), or the small-business specialist at the local bank, or worker's compensation insurance (and OSHA standards), just indicates the blindness of those folks to the reality that authorship is a business as much as it is art. It may be a special category of business (with no employees, little opportunity for shrinkage, and a very informal dress code), but it's not insulated from those realities.

    Second, the discussion of "regulatory capture" beginning on page 2041 of the issue is extremely enlightening by analogy regarding copyright and other intellectual property regulation. Professor Levitin's explanation of regulatory capture, and how it affected the banking system during the last two decades, is admirably clear and accessible to anyone with a college degree (and probably a lot of folks who haven't made it that far yet, either). Further, the reasoning is directly on point concerning what has happened to the Copyright Office — and, for that matter, to the United States Trade Representative, the Patent and Trademark Office, and the House and Senate Judiciary Committees — over the last couple of decades. If one follows the employment history of senior (and even not so senior) personnel at the Copyright Office, one discovers that they end up working for Big Media and/or Big Internet. All of them, even when they decamp for purportedly "independent" law firms (whose client lists are entirely on the exploiter side) or trade associations masquerading as think tanks. It's even worse with the USTR and the PTO... and after the last few electoral cycles and the biased witness lists assembled by the Congressional committees, do I really need to say anything? When the only voices being heard are those with a vested interest in screwing the authors, the most-probable outcome is pretty predictable. I keep invoking the nearly-a-decade-ago experience I had at the first Orphan Works Roundtable, in which I was (literally) the only representative of the actual, natural-person creators of copyrightable works, drowned out by eighteen voices of exploiters and distributors and reusers who had no interest (or at best lip service for "transformative uses") in actual creative work. Things have not gotten better... and Professor Levitin's review essay exposes the machinery that explains why.

    If this all sounds like I have my tinfoil hat on, remember: I know these people. It's not paranoia when they really are out to get you, especially when you've been thrown to the Wolves by your own agent (who was busily engaging in legal malpractice... or would have been, if he'd been a lawyer). The underlying assumption of Judge Buchwald's decision is that the author and the publisher, in 1971, had both (a) the same understanding of what they were agreeing to and (b) reasonably equal information and bargaining power. Indeed, that's the fundamental assumption of every small-business-to-large-business contract dispute. Given that the last such contract was signed some time in the 1890s in southern Idaho, I don't think it's a good model — especially since it plays directly into the narrative of regulatory capture. (And, for the moment, I'll leave aside the irony of one of the "new" publisher's principals being a former bigwig at the "old" publisher... and was personally responsible for laying the groundwork of the very nonnegotiable e-book royalty policy that led to this dispute in the first place.)