... for the next few months. It's the first monday in October, so the US Supreme Court is back in session, rudely interrupting my post-migraine recovery.
- And one of the first things that it did was turn away appeals from states in a mob-rule-based controversy. By refusing to hear the appeals at all from several states that want to ban gay marriage but were rudely smacked down by courts below, the Court allows the lower-court rulings to stand without ruling itself. On one hand, this means that the restrictive laws in those states are immediately ineffective, because the Court's ruling allows the particular rulings below — all of which rejected restrictions on gay marriage — to stand. No need to wait up to nine months for briefing and argument and a decision! On the other hand, it's not a uniform, nationwide ruling, either; there are other pending disputes on similar laws, and a refusal to hear a case has no formal precedential value.
- Meanwhile, the Nobel Prize Committee has begun announcing the 2014 honorees, starting with a three-way sharing of the prize in Medicine and Biology.
- The so-called "Public Editor" at the NYT has pontificated with a mansplanation about the NYT's coverage of the latest Amazon-versus-publishers "dispute." She asserts:
It’s important to remember that this is a tale of digital disruption, not good and evil. The establishment figures The Times has quoted on this issue, respected and renowned though they are, should have their statements subjected to critical analysis, just as Amazon’s actions should be. The Times has given a lot of ink to one side and — in story choice, tone and display — helped to portray the retailer as a literature-killing bully instead of a hard-nosed business.
"Publishing Battle Should Be Covered, Not Joined" (04 Oct 2014).
This is fundamentally wrong, and reflects a blindered, self-interested misunderstanding of a century of copyright law. Three developments before Europe went up in flames — the player-piano cases, the 1909 Copyright Act, and the Townsend Amendment — turned US copyright law from a law of creator's rights into a law of transferee's exploitation. Just look at who the actual litigants have been in most of the major copyright decisions since the rise of the recorded-music industry and the film industry put some real money at issue — President Ford didn't assert his rights, the publisher did; Dashiel Hammett didn't litigate over "ownership" of Sam Spade, the studios (and publisher) did; neither Professor Tolkein nor Sir Arthur Conan Doyle has asserted a damned thing about their respective creations since their deaths, but estates composed of the purported economic interests of their heirs did; it wasn't Roy Orbison, nor even his heirs, but his "publisher" (actually the equivalent of a vulture-capital takeover firm), who sued 2Live Crew; and so on. It has actually been quite rare to see a "human-creator versus alleged-infringer-and-not-distributor" battle actually reach a decision, let alone set precedent.
That's what is actually happening between Amazon and the publishers: A struggle between transferees over how much of the pie each transferee gets to claim, with increasing disdain for those who bake the damned pie in the first place. This time, some of the bakers spoke up, which counts as "news" in a rather disturbing way. The Streitfeld piece was itself woefully incomplete... by failing to point out that the authors in question had all, long before this dispute arose, transferred their rights to third parties in a largely forced transaction involving multiple layers of oligopoly and other unfair trade practices, and so were dependent upon not being crushed by the rocks thrown by giants at each other while running around at the feet of those giants. None of the coverage in the NYT has come even close to acknowledging that there's either a transference of or imbalance in power at issue here, nor even that the interests of the publishers are not fully aligned with the interests of the authors. Neither has there been any acknowledgement that this kind of "disruption" has occurred at least half a dozen times in the last century, but that this time everyone has access to uncontrolled "news outlets" and so-called "modern" publicity mechanisms in a way that they haven't previously. Consider, for example, the 1990s consolidation of distributors that simultaneously laid the groundwork for the Crown and Borders bankruptcies and the demise of the true generalist bookstore; had the predecessor of Ms Sullivan (or anyone else at the NYT) been paying attention to the actual creator communities at the time, they would have seen quite a bit of distress... on CompuServe and GEnie semiclosed bulletin boards. Now, though, it's "all over the 'net," and so it constitutes "news" that is somehow worthy of notice.
For the moment, we'll leave aside the irony that this is all coming from a representative of the company that screwed up electronic rights forever, leading to the Tasini matter and bullying of writers later by imposing "if you ever want to work for us again, you have to sign away the electronic rights to all of your past works" contracts on freelancers after it lost; that is, the playground bully still persisted in stealing lunch money after a trip to the principal's office. We'll also leave aside the irony that without its century-long misuse of the work-for-hire doctrine, the NYT would not — and probably could not — exist in its present form. Failing to acknowledge these critical pieces of context rather thoroughly undermines any opinion coming from the NYT... even before we get to the "civilization ends at the Hudson" problem underlying all of the NYT's coverage of "publishing" and "literature" issues, which only begins with its supercilious treatment of even elements like the University of Iowa's renowned MFA program like they're short breaks from the necessary life in NYC. For all that I value the attempts by many NYT writers (both employees and freelancers) to cover problems of national scope, that perspective all too often results in egregious misunderstanding resulting in a positive-feedback loop of diminishing credibility outside the NYC echobox.
Then, too, there's a critical unstated normative assumption: That "the end of the world as we know it" would not "feel fine" — the next line in that old REM song that Ms Sullivan cites at the beginning of her mansplanation. This normative assumption parallels the NYT's failure to acknowledge context, either in general or its own. To put not too fine a point on it, this is the perspective of the buggywhip industry — interestingly enough, from just about a century ago, too. The arts would definitely be better off without [names of the guilty withheld for the nonce] acting as economically empowered gatekeepers (with really bad taste and little or no critical acumen or distance) and controlling literature not just for that island and its surrounding burroughs, but the nation — and perhaps the English-speaking world — as a whole. Not that other competing potential power centers, such as Nashville and Los Angeles and London, would be all that much better...
Try again. And this time, begin by admitting that the NYT itself has a distinct stake in whatever results from this dispute; better yet, take that into account in your statement, Ms Sullivan, because that's what your job title implies you're supposed to do. But I suspect that you won't: To self-appointed arbiters of what is "news," their own self-interest never matters (and that's not just the NYT).