Open Your Blue Exam Books, Please

... or, these days, fire up your word processor.

1. (60 min/30%) Consider the following passage:

Such phrases [as "Middle Ages"], obviously, are not self-contained; they are in fact incomprehensible unless we know some other facts. They designate something at first sight very vague, and need to be anchored in time (and, for that matter[,] in place) before we know what they mean. They refer to an unspecified number of centuries distinguished only by coming between others, and we are entitled to ask "between what? after what? in the middle of what?" Most people who read this book are likely to know the answers to such questions, approximately at least, before they open it, but only because the phrase "Middle Ages" has come to be taken for granted; has come to carry with it certain assumptions and presumptions — among them, that they apply to European history. But they were not there when men started to talk about medium aevum or media aetas, or coined other phrases as they cast about to express what they wanted to say. There was a time when the Middle Ages was a new idea, an invention, in fact.

J.M. Roberts, A History of Europe 162 (1996 U.S. ed.) (italics in original, punctuation corrected to US standard).

Discuss at least three of the following five items in light of this passage:

• Justice Scalia's assertion that the legislative record is irrelevant to statutory or constitutional interpretation, particularly as declaimed in his majority opinion in District of Columbia v. Heller, 554 U.S. 570 (2008) and in his concurring opinion in Citizens United v. Federal Election Comm'n, 558 U.S. ___, 130 S. Ct. 876 (2010)
• The set of Hirabayashi v. U.S., 320 U.S. 81 (1943) and Korematsu v. U.S., 323 U.S. 214 (1944), contrasted with U.S. v. Windsor, 570 U.S. ___, 133 S. Ct. 2675 (2013).
• The meaning of the word "author" in 17 U.S.C. § 201(b), contrasted with the meaning of the word "author" in the enabling constitutional provision (Art. I, § 8, cl. 8)
• The meaning of the word "parody" in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) as interpreted in Dr. Suess Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997).
• The general judicial refusal under "rational basis" review to consider only what a legislative or executive actually considered as reflected in the contemporaneous record, but instead consider what it might hypothetically have considered, as a valid rationale for an action or provision challenged as "unconstitutional"

Your response should include specific examples and counterexamples from both legal and nonlegal sources. Your answer may not exceed 1,250 words (approximately five double-spaced pages) excluding citations.

Astroturf™: A Modest Proposal

Well, I'm stuck in California, where there's a severe drought in progress that, in reality, shows little chance of abatement (despite hopes for potential relief this fall from El Niño). It's gone so far that even the California legislature has noticed and actually done something, even if it's very much a case of trying the close the barn door after the horses have left. And the barn has burned down.

But it's worth taking a closer look at a photograph I might have used to illustrate that story on the legislature taking some action. One would think it would be illustrated by farmland, perhaps a wasteful wide-cast irrigation system running in the heat of the day (when even more water will be wasted through simple evaporation... and the plants may be harmed through lens effects from water droplets). But as noted, the legislature has at least begun to address part of that issue. Without addressing another issue:

Why the hell don't we demand that golf courses convert to Astroturf™ and eliminate their "water hazards"?

Is it, perhaps, that golf is such a preserve of upper-class and upper-middle-class white men that we can't regulate their bloody leisure activities? And for those who would claim that golf courses are "parks" and/or "nature preserves," just try having a picnic on a fairway; or testing the runoff from a golf course; or finding a natural habitat that consists of bloody lawn cut to a uniform height without ever being allowed to go to seed. And if you've ever seen water-consumption figures for a golf course — such as, say, the course on Andrews AFB, DC, frequently played by Congresscritters and Presidents — you'll begin to wonder just how many of the purported 17,000 jobs that might be "lost" through California's groundwater regulation might be "saved" if the water expended on golf courses was reallocated to those lower-class and lower-middle-class agricultural activities in the Central and Imperial Valleys, with all the women and children and melanin-enhanced people who hold those jobs benefitting from the reallocation.

Besides, there's always Astroturf™ as an alternative for golf courses. It can even be Astroturf™ designed to retain more groundwater. There won't be issues with divots any more, either. Neither will anyone be able to whinge about inconsistent mowing... or the groundskeepers getting in the way of spoiling a good walk. Golf isn't exactly a high-impact-on-the-knees "sport," either, unlike (say) football of any variety. Given the heavily Heffalump-leaning demographic of golf "enthusiasts," it seems that imposing Astroturf™ on them would be fitting for other reasons, too...

So that's my modest proposal and modest contribution to the groundwater debate in California.

The Health Department Recommends You Avoid This Platter of Internet Sausages

... because it was prepared by a "chef" who spent the last week sick.

• And getting a little bit shaken up. That was an interesting 10-15 seconds in the middle of the night, but the Shark Nest is about 60km from the epicenter of that tremor. That was also considerably less annoying than the second Saturday night power outage in a week several hours previously.
• The local monopolist BigBookBoxStore chain continues to get more disturbingly unconscious about its racism. The counts yesterday:

  Hillsdale Store	New Teen Romance	New Teen Science Fiction & Fantasy
  Titles in Endcaps	59	87
  Humans Depicted on Covers	63	84
  Noncaucasian Humans Depicted on Covers	0	1
  Book-Inferred Noncaucasian Demographic	0%	1%
  San Mateo County Actual Demographic (2013 Census Estimates)	36.7%

  Not acceptable.
• What utter moron at the NFL Network approved a campaign song associated with an utterly spoiled 1% brat (video) as being appropriate for "mere" popular fandom? If you don't remember it, here's the original (video).

In London So Fair

... I was not. At least not this past weekend for WorldCon. I might not have been all that welcome, anyway.

That said, congratulations to the recipients of the Hugos. They don't deserve to be tarred with the brush of corruption, but they probably will be.

And further, grudging congratulations to the paying electorate for gettings its collective head out of its collective rectal orifice for at least long enough to reject the attempted partisan/ideological manipulation of the awards. Being competitive with — and, more appropriately yet for the most repulsively bigoted of the authors, losing to — "No Award" seems just about right (see pages 1 and especially 3). Of course, the nomination statistics are revealing, too...

The More Things (Appear to) Change...

Once upon a time, I remarked on the disturbing tendency of advocates of self-publishing ("boosters") to, well, lie about the track record of self-publishing. As it's now been a decade, it's time to revisit that posting... unfortunately.

For printed books, nothing has changed for the better; if anything, boosters of POD-only self- and vanity publishing have gotten even more deceptive in their disturbingly generic approach. Probably the worst offender — and now nearly a monopolist — is Author Extortion$olution$, which is now a wholly owned division of one of the Big Howevermanythereareleftbythetimeyoureadthis commercial publishers in NYC: Penguin. (Which is, sad to say, essentially a wholly owned division of another media conglomerate itself.) In a sense, A$$ is the reductio ad absurdum of almost everything that is wrong with the business model of commercial publishing in the twenty-first century... combined with almost everything that is now and has been wrong with the business model of vanity publishing since the early eighteenth century. The considered advice that I have is to stay away. Stay away for original works; stay away for "affiliate" programs through purported "writers' organizations" that are making more money from your "publishing agreement" than you are; stay away from A$$'s competitors, who are merely slightly less bad deals. It's actually unfair to compare these vanity publishing con artists with actual self-publishing vendors (key test: if the publisher/vendor has legal title to the individual copies as they come off the press — whenever they actually do — it's not self-publishing). Unfortunately, thanks to the rapacious venture-capital approach that took over in about 2006, that's really all that's left...

...except, that is, for the boosters, who sound more and more like convicted felon Kevin Trudeau every time I see one of their pitches for their "self-help" conferences and "self-published" books (that, with only one meaningful exception, are actually distributed through commercial publishing channels, which should tell you everything you really need to know). I continue to stand by my 2004 analysis, which was remarkably generous to the purported "self-publishing success stories" debunked there. For example, I didn't point out that three of the purported "success stories" were successful only through commercial publishing... and went through bankruptcy with their self-publishing efforts. I didn't point out that two of the other purported "success stories" later repudiated both self-publishing in general and their own experiences with it (and one of them even repudiated the work in question). I didn't point out that one of the other purported "success stories" has long run a bookstore stocked almost entirely with commercially-published books — even in the noncommercial category of his "success story."

Things are slightly different, however, concerning electronic self-publishing. I'm going to pause for a moment while you consider Victoria Strauss's restrained, eminently reasonable, absolutely essential evaluation of electronic self-publishing in mid-2014. OK, you're back? You've actually read Victoria's piece (instead of just bookmarking it for "later," which usually means "never"), and in particular carefully determined that you're not kidding yourself? The key thing to remember about electronic self-publishing is disturbingly simple:

Some grade-school phenoms get rich in the NBA, but that doesn't make the expectation of future NBA riches a good business plan for even a highly talented seventh-grader.

Indeed, if one really wants to understand this entire phenomenon, one can do worse — much worse — than spend four hours watching one of the ten best films of the 1990s and thinking about its shocking parallels to publishing, and especially to publishing fiction. There quite possibly are (and almost certainly in the future will be) some exceptions... but the existence of such exceptions does not make them valid models for a business plan, any more than that of Arthur Agee and William Gates, Jr. in sixth grade.

Commercial publishing is even more insane than it was a decade ago. The up-front cash requirements are now vastly lower for electronic self-publishing than they ever were (or will be) at any stage of print self-publishing. The hidden vanity publishing deal remains just as dangerous (and, sad to say, prevalent), and the perfidy of commercial publishers is better known. Electronic self-publishing boosters provide a much higher proportion of well-meaning, but not well-considered or -taken, advice, from people who think that somehow pasting some statistical language on top of invalid data sets will provide meaningful guidance for persons who are — almost by definition — not inside those data sets; perhaps that even outnumbers outright con artists. So far — and once upon a time (the 1980s and early 1990s), there was less spam in my inbox for snake oil internet p0rn dubious pharmaceuticals, too.

This leads to the most-important question that any not previously commercially published author who is considering electronic self-publishing should ask... and honestly answer:

Do I have one or more follow-on e-books or ancillary products of comparable nature and quality that will be ready for publication/exploitation within three to six months after I make this one available for sale to the public?

If you can't answer that "yes," that should be a big hint that you're not ready to make a planned financial success out of electronic self-publishing. Almost without exception, the non-deceptive "successes" in electronic self-publishing have come from authors with multiple, comparable products all made available within a short period of time. Some of these are republication of back catalogs by commercially published authors; others are first publications in electronic form, but at tight intervals to satisfy internet-paced memes and fandom; still others are tied to non-publishing events and circumstances (such as personal appearances). Indeed, I've been unable to verify any exceptions, although I'm still withholding judgment on several candidates.

If there's a short version of this post, it is this: Don't quit the day job until you've already proven that you actually can quit the day job. That's the same advice that authors should have heard (but too often have not heard) since the early eighteenth century; the context and details have changed, but the conclusion has not. Similarly, my conclusions regarding unethical boosterism of self-publishing haven't changed in the last decade, either — a few of the details have changed, but the primary question still needs to be "What's in it for the person offering me this advice?" On occasion, one really will find an altruist. More often, one will find a misguided booster... or outright con artist... and distinguishing among the three is a matter of degree, intent, and the dark arts of certain professions that tend to make for complete disjuncture from the writing life.

The Windmills Won (Fortunately)

If you have a dubious copyright claim, don't assert it in the Seventh Circuit... and ensure that your position does not "border[] on the quixotic" or "the frivolous." In particular, you should seriously rethink your strategy if the following sounds anything like you:

The Doyle estate’s business strategy is plain: charge a modest license fee for which there is no legal basis, in the hope that the “rational” writer or publisher asked for the fee will pay it rather than incur a greater cost, in legal expenses, in challenging the legality of the demand. The strategy had worked with Random House; Pegasus was ready to knuckle under; only Klinger (so far as we know) resisted. In effect he was a private attorney general, combating a disreputable business practice—a form of extortion—and he is seeking by the present motion not to obtain a reward but merely to avoid a loss. He has performed a public service—and with substantial risk to himself, for had he lost he would have been out of pocket for the $69,803.37 in fees and costs incurred at the trial and appellate levels ($30,679.93 + $39,123.44). The willingness of someone in Klinger’s position to sue rather than pay Doyle’s estate a modest license fee is important because it injects risk into the estate’s business model. As a result of losing the suit, the estate has lost its claim to own copyrights in characters in the Sherlock Holmes stories published by Arthur Conan Doyle before 1923. For exposing the estate’s unlawful business strategy, Klinger deserves a reward but asks only to break even.

We note finally that the estate was playing with fire in asking Amazon and other booksellers to cooperate with it in enforcing its nonexistent copyright claims against Klinger. For it was enlisting those sellers in a boycott of a competitor of the estate, and boycotts of competitors violate the antitrust laws. The usual boycott is of a purchaser by his suppliers, induced by a competitor of the purchaser in order to eliminate competition from that purchaser, as in the leading case (old as it is) of Eastern States Retail Lumber Dealers’ Ass’n v. United States, 234 U.S. 600 (1914); see also JTC Petroleum Co. v. Piasa Motor Fuels, Inc., 190 F.3d 775, 777–79 (7th Cir. 1999). This case is different, in its facts but not in economic substance or legal relevance, because the boycotters enlisted by the Doyle estate were buyers from the victim, rather than sellers to it. But functionally they were suppliers—suppliers of essential distribution services to Klinger.

It’s time the estate, in its own self-interest, changed its business model.

Klinger v. Conan Doyle Estate, Ltd., No. [20]14–1128 (PDF) (7th Cir. 04 Aug 2014), slip op. at 6—7 (op. on fees) (citations in original, hypertext added).

I think Judge Posner is actually too nice to the Doyle Estate's business model: Depending upon the degree of force used, it's better known as either a "shakedown" or a "protection racket." This sort of nonsense actually makes enforcement on behalf of those who have legitimate claims significantly more difficult: Demand letters get roundfiled along with the frivolous claims... and the frivolous defenses. One corollary — the invalid assertion of work-for-hire status — may get a Supreme Court hearing in the near future, and will hopefully be treated with equal disdain (leaving aside the constitutional question of whether Congress — or even a court — has to power to redefine the term "author" as it appears in the Constitution (Art. I, § 8, cl. 8) to mean "someone who is definitely not the author," as that issue appears not to have been raised thus far).

Counsel is not obligated to pursue every claim that a client believes it has regardless of merit. Counsel is obligated, as an officer of the court, to pursue only meritorious claims or defenses... and is supposed to tell the client when a claim or defense has no legal merit and refuse to present the nonsense. Even if a claim or defense has "merit" as a negotiating position, it doesn't belong in court. Any "bordering" on the quixotic in this case was on the wrong side of the border, and after Dastar the border was a couple of counties the other way.

Timeline

Forty years ago, the US got its only unelected President (thus far, anyway) when Nixon resigned rather than be convicted at his impending trial on impeachment. Too many people forget that Nixon probably had better ethics than had his elected Vice President, Spiro T. Agnew; and too many people take the peaceful transfer of power for granted. Unfortunately, we're still paying for everything in, around, and related to Watergate: Our current difficulties with the NSA are just a really bad hangover.

Fifty years ago, the US got itself inextricably committed to a really bizarre and indefensible variant on the "domino theory" through the Tonkin Gulf fiasco, in which nobody really wanted to know the truth. But that's nothing compared to...

...the ultimately suicidal arguments of Europe's upper classes, just about a century ago. Unfortunately, those upper classes insisted on taking the rest of the continent (and some of the rest of the world) with it.

On the whole, I think this validates the idea that early August is for vacations, and not much else.

The Popguns of August

Blawgging is a much lower priority than recovering from back spasms, I'm afraid... especially when it takes three days to present this particular platter.

• I'm shocked — shocked, I say — to find further efforts by the music industry to screw the artists. Mark this date in your mental calendar; some time between six and eleven years from now, you'll see a similar issue arise with print publishing.
• Many large cities have "arts districts" — usually former industrial or heavy-commercial districts filled with somewhat rundown buildings and attractive to artists because (a) the rents are something approaching affordable and (b) there aren't a lot of skyscrapers or traffic jams, two of the big distractions. Sometimes, though, landlord and speculator greed gets in the way of the community, and things begin to fall apart.
• Nature walks are probably more appropriate in rural Germany than just off the Baltimore-Washington Parkway, or in semirural McLean, Virginia... although these nature buffs would probably have more success near the latter. If this didn't sound like the setup for a classic Python sketch, though, it might be taken a bit more seriously.
• The UK's copyright system is moving toward something resembling reality, with new privileges for private copying, parody, and quotations that take effect on 01 October 2014. The "private copying" privilege (what they call an "exception" in the UK) is essentially the right to make a backup copy of something that you own, and explicitly does not extend to anything you don't own, without adding a private-copying levy to the price of either the copyrighted material or to blank media. The parody privilege remains extremely problematic, as the UK's lack of a sufficient embodiment of the US's First Amendment rather seriously undermines the scope of its parody privilege; the particular example cited by the IPKat, for example, would contradict our 2Live Crew doctrine (and, further, improperly conflates the performance-copyright aspects with the songwriting-copyright aspects, but that's a quagmire in any event). There's a similar, but less egregious, problem with the fix for quotations.
• The Amazon v. Hachette fiasco consists largely of arguing over which entity gets what proportion of the angels found on the head of a pin, assuming all the while that there are (a) a pin, (b) angels, and (c) a means of counting angels that leads to a viable result. I can't do anything about (a) or (b), but I strongly suggest that the implications of this fine thought-piece on valuing the commercial contribution of design to a product should inform (c) much more than it does. The entire pricing structure of publishing is based upon assumptions from the 1960s (which, themselves, had shaky foundations) regarding the "right" price for books that have never been confirmed by actual data. "List price must be ten times the printing cost" my (surgically removed) left big toenail!