Book reviewing is really no more honest than book publishing—especially since some of the same conglomerates that own major and mid-major publishers own many of the major sources of book reviews. The New York Times Book Review is an obvious one. But, at least according to Slate, things are not entirely bad…

One thing the trades maintain—and an informal survey of freelancers bears out—is that reviewers are not directed to take a position on the books they're writing about; instances in which a reviewer's judgments are overwritten by editors are rare. Which means this: For better or worse, a motley assortment of underpaid and often anonymous reviewers using their own unfettered judgment have a great deal of influence over the books you are most likely to come across in your neighborhood bookstore and, if you are shopping online, buy.

Adelle Waldman, "Book Report: How four magazines you've probably never read help determine what books you buy," Slate (15 Sep 03). The anonymity is a problem. So is the warrant for the assertion that "instances in which a reviewer's judgments are overwritten by editors is rare." There is instead the subtle pressure of future assignments; editorial expectations are usually at least implied to reviewers with each assignment.

   On the other hand, it's probably better than the obscene sycophancy of movie reviews. Nothing to aspire to, but not as bad.

Sometimes one simply must scratch one's head in wonder at the posing and idiocy in the publishing industry. Today's example (probably only the first) concerns the National Book Awards and complete misunderstanding of the nature of both literature and awards. An article in the New York Times notes that Stephen King (!) has been selected to receive an award [free registration required] for "distinguished contribution to American letters." The article notes that

Mr. King's selection is the first time that the organization, the National Book Foundation, has awarded its medal to an author best known for writing in popular genres like horror stories, science fiction or thrillers. Very little of Mr. King's work would qualify as literary fiction.

And thereby hangs a tale. Hopefully, a few editors and publishing-industry figures, too.

Postulate: Authors and their works are not coextensive. On one level, nobody should even blink an eye at this award. The award is for a "distinguished contribution to American letters." The last time I checked, writers need libraries, schools, promotion, and most particularly audiences. There is little question that Mr. King has fulfilled each of these criteria—certainly moreso than has, say, Philip Roth (a past winner). This is not a "book of the year" award; the NBA Awards, which are, remain distinct from the medal under discussion.

At a broader level, nobody with any brains really believes that authors and their works are identical. Consider, for example, Ezra Pound, particularly his earlier poetry. Ezra Pound was a traitor, a fascist, a bigot, and a miserable excuse for a human being. He was also a skilled poet. Reading his early poetry under contest conditions (that is, identified only as "Author 719" or some such) reveals very little of his intensely flawed nature. That is as it should be. Consider the opposite phenomenon—authors with extreme desires for privacy like Thomas Pynchon. If one were required to use (and limited to using) the same interpretive tools as are used to make Pound's poetry unfashionable and virtually outside the canon in reading Pynchon's works, allowing for the differences in genre (of which more anon), Pynchon's reputation would be vastly lesser and different than it is now—simply because he and his personality are not writ so large.

Postulate: The nature of her readership does not determine an author's contribution to letters. Mr. King is not one of my favorite authors. I find his work shallow, overlong, and unambitious, and his plots are often extremely predictable. I do not share the common (and currently fashionable) "appreciation" for his purported "storytelling skills," because his writing often removes me from participating in his story. His audience is largely of unsophisticated readers who read as much to pass time as anything else.

And none of that matters.

"American letters" had better not mean "only the stuff we'd be comfortable with college students reading," because there are a lot of college students from every discipline reading Stephen King. When I was in college, he was barely a blip on the literary radar screen, principally because most people were familiar with him only through Brian de Palma's screen version of Carrie. American letters, however, exists far outside the academy, or wine-and-cheese parties on the Upper East Side, where barbarism rules (frankly, one is less likely to find civilization east of the Hudson than west of it). In my day, we were reading Tolkein and Bradbury (Ray, not Malcolm) and Clarke between classes covering contemporary literature that included Updike and Coover and Cheever. Toni Morrison was not yet fashionable in the core of literature; her works might be found in Women's Studies (my university was one of the pioneers) or as a particular freshman composition instructor's supplemental text. However, I seriously doubt that as many literature students and future writers—not by any means the same thing—were as influenced by Updike and Coover and Cheever combined as were influenced by Ray Bradbury, let alone Clarke or Tolkein.

A few hundred years ago, William Shakespeare (I refuse to argue over the "real" author of his plays—see the preceding postulate) was a hack and Samuel Johnson was the leading figure in English letters. Shakespeare was considered common and vulgar; the educated elite preferred Johnson's sarcasm and wit. Today, Shakespeare is a central part of the English-language canon and Johnson might be encountered as part of an advanced survey of seventeenth-century literature, and probably would not consume more than a class session or two in total.

Postulate: Virtually everything considered to be "letters" is in the same genre. This arises from the publishing industry's historical misuse of the term "genre." There are only four genres: poetry, drama, rhetoric, and fiction. What the publishing industry likes to call "genre fiction" is instead just often irrelevant marketing categories, and not very accurate at that. By publishing industry standards, Le Guin is a despised "genre writer," while Atwood makes a valiant effort to avoid that label and is generally accepted as "mainstream." Leaving nationality aside, the substance of their works does not justify this distinction. Oryx and Crake and The Handmaid's Tale are farther inside the industry's perception of "genre literature" than are Malafrena or Orsinian Tales (or, to bring in the even-more-despised "young adult" category, Very Far Away From Anywhere Else). On the other hand, there is almost no principled distinction in subject matter between Oryx and Crake and Le Guin's corresponding The Dispossessed—except that the latter is a far superior work in both "storytelling" and "literary" quality.

What instead this reflects is a regrettable tendency on the part of the industry to both determine the quality of a book by whether it has a rocket ship (or dragon or detective) on the cover and contradict itself by treating books within a given category as fungible items. If there is one thing that can be said for literature, it is that books are not commodities to the reader. A given reader cannot replace Turow's Pleading Guilty with Grisham's awful The Firm, despite the fact that both books revolve around the protagonist's efforts to leave a corrupt law firm. However, if "Turow" and "Grisham" were closer together alphabetically, they might well be shelved side-by-side in a bookstore.

In the end, then, Stephen King's services to American letters justify awarding him a medal for a "distinguished contribution" more than do those of several of the previous recipients. That marketing considerations (not to mention outright snobbery from people who don't actually read that which they disdain) have been until now outcome-determinative is the real story, and the real problem. Remember, taste in subject matter is not really relevant; after all, some literary lionesses write whole books about boxing, which is about as lowbrow as one can get.

As someone who unabashedly reads speculative fiction for its literary merits, I often feel like one of the three-fifths of "all others" who outnumber the respectable full citizens of the literary world, with just as much justification for such a distinction.

Cause and Effect

An article in today's New York Times notes the disjuncture between the record labels and many musicians (and similarly between directors and screenwriters on the one hand and film producers on the other) on the whole file-sharing issue. Sadly, this is not just a matter of abusive contracts, or questionable accounting practices, or inept sales efforts, or any other behavioral aspect of the music business. It's not just a bad idea—it's the law. Even if all of these industry practices were changed today, retroactively, there would remain a serious problem to overcome: a definition in the Copyright Act.

The Copyright Act defines a "work made for hire" in part as

a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work… if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

17 U.S.C. § 101. Things would have been even worse under § 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, which would have defined "phonorecordings" as works made for hire regardless of the contractual terms.

In any event, there is an "impairment of contracts" problem with changing music industry practices. At the moment, the work made for hire clause allows a definitional clause to effect the transfer of the copyright from the actual creator to a commissioning party. That gives the commissioning party a property interest. If the work made for hire clause were to be retroactively corrected so that it did not automatically give the commissioning party such an interest, regardless of contractual language that was intended to make such a transfer, it would "impair" the contracts that depend upon those clauses. That is a no-no. See, e.g., Trustees of Dartmouth College v. Woodword, 17 U.S. 518 (1819). Prospective relief, however, will not solve the file-sharing problem, because it would not influence any existing recording (and quite possibly not some recordings that do not yet exist but have already been contracted). That would leave an immense proportion of material under the current system, which rewards not the creator—as intended by the Intellectual Property Clause—but investors.

The intellectually dishonest aspect of US "work made for hire" law is that it defines the "author" as the commissioning (investing) party. In other words, for legal purposes the author of Galaxy Quest is DreamWorks LLC, not David Howard and Robert Gordon (the scriptwriters) or Dean Parisot (the director) or any other natural person. Similarly, the legal author of Bridge Over Troubled Waters (the album) is Columbia, not Simon & Garfunkel (the performers) or Paul Simon (the songwriter). This is all very much like Humpty Dumpty's definition of "glory" as "a good knock-down battle." Whether Congress has the power to redefine common language used in the Constitution in a fashion that undermines the stated rationale is open to question; whether it was intellectually honest to do so is not.

But why define the author from the beginning? Can't there just be a transfer of copyright? Well, yes. But it is a transfer that could be time-limited (17 U.S.C. §§ 203, 304), and would be subject to the vagaries of state contract law. Then there's that whole awful droits morale ("moral rights") thing to which the Europeans, and particularly the French, pay so much attention. A WFH's actual creator, not being the legal author, cannot claim any droit morale when, say, the studio cuts a scene from a film at the last moment to avoid an NC–17 rating, over the protests of the director, screenwriter, actors, and every other creative person involved with the film. <SARCASM> But that never happens. </SARCASM>

There are several simple ways out of this morass. However, all of them would result in some harm to large corporate interests in exchange for enhancing creators' rights and the purposes of the Intellectual Property Clause. In this era of political action committees, outright purchase (or at least long-term lease) of elected officials, and campaign finance "reform" that does nothing of the sort, I doubt that any of these reforms could be adopted. I can dream, though.

Rivals for Affectation

Professor Solum has some further thoughts on the concept of "intellectual property", in response to some musing by Professor Volokh on the subject. You may recall an extended discussion that Professor Solum and I had on the subject in July; I think, in the end, that we implicitly agreed to disagree.

In any event, the "rivalrousness" debate continues, this time between Professor Volokh and Professor Solum. Professor Volokh notes that

But that makes sense only if you see property law as focused solely on securing the rights to use. If property law—in land and in goods—also legitimately protects the right to exclude, not just as a way of protecting the right to use but also as a way to give people enough incentive to invest time and effort, then intellectual property law does make sense even if such property is nonrivalrous.

(Emphasis in original.) This is much more elegantly stated than my version. Professor Solum's response is illuminating, although perhaps not in the way that he intended:

Intellectual property is not a club good…. [T]he "intellectual property," the information that constitutes the MP3 file, is not a pure private good, because consumption is nonrivalrous. (Consumption of the CD is rivalrous. Consumption of the internet connection is rivalrous. But these are not the intellectual property.)…. Moreover, the intellectual property is not a club good. Why not? Because there is no optimal size of the club. Unlike wells and movie theaters, there is no net social welfare gain that derives from limiting the number of consumers through pricing. If too many people crowd into a theater or too many people attempt to use a well, there is a net loss of social welfare. If everyone who wants to do so listens to a song, there is a net gain of social welfare.

(Bold emphasis in original; italics and ellipses added.)

This is an interesting position that fails to persuade, for three reasons. First, it relies upon another a priori definition of an economic property for its force. That definition may well have some value; however, it was conceived in the absence of significant concepts of intellectual property (as I understand it, the concept of a "club good" goes back at least to Mill, and is at least implicit in both the "tragedy of the commons" and in Malthus). Second, it continues to elevate rivalrousness to the single most critical element in determining whether something is (or is not) "property." But we've already agreed to disagree on these two issues.

Third, and perhaps most important, a critical factual predicate (the italicized phrase) appears to be incorrect. The Framers of the Constitution—whoever they may be; in this context, I suppose that I mean the delegates who voted to approve the initial text that was adopted, collectively—said otherwise. The Intellectual Property Clause (Article I, § 8, cl. 8), gives Congress the power

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

While this does not explicitly state that price may be used as a means of securing that "exclusive Right," it does demonstrate that there is—or at least could be—a "net social welfare gain that derives from limiting the number of consumers through pricing." Under the classical theory of supply and demand, a reduction in supply of a good (or service, in more recent theory) without a change in demand will increase the unit price of that good (or service). That the Framers were familiar with at least this abstract description of classical economic theory is pretty much incontrovertible, as it both underlies the text they adopted and appears with some frequency in Madison's notes of the debates at the Constitutional Convention. Granting authors and inventors an "exclusive Right," in those terms, necessarily gives authors and inventors the right to limit the supply of "their respective Writings and Discoveries." Congress's concern in the Intellecual Property Clause was to create a net social good (promoting progress in science and "useful Arts"). Thus, a price restriction could—and perhaps even clearly does—result in a social good, however indirectly.

In the end, what this really points out is that economics is not, despite the protestations of some of its more radical proponents, a value-free method of reasoning. The key qualifier in all of the above is "net." If one looks at the entire system of intellectual property, the answer that one might arrive at may well be different than when looking at a subset of that system, let alone a single piece. This is one of the problems with the emphasis on "rivalrousness" (which, in clearer English, might well be termed "end-user reproducibility") as a measure of the propriety of treating a large class as property: by its nature, an inquiry into end-user reproducibility is both fleeting—it depends upon technical means and skills available at the moment of measure—and limited to homogeneous economic goods/services. At an extreme, the logical structure of such an argument might be stated like this:

P: RGB 999966 is an unpleasant color.

p: RGB 999966 is a shade of green.

C: Therefore, shades of green are unpleasant colors.

What end-user reproducibility does implicate is the efficient unit price for a specific identifiable economic good/service, not whether the (or a?) class of economic goods/services that includes that specific identifiable economic good/service is or is not property. This again depends upon an a priori definition and syllogism:

P: "Property" is all rivalrous.

p: "Intellectual property" is not rivalrous.

C: Therefore, "intellectual property" is not a proper subset of "property."

So why should authors and other creators care? Well, leaving aside their bank accounts—starving artists do not create art; starving artists push up daisies—it demonstrates the tension among the "marketplace of ideas" model of First Amendment law and the "marketplace of ideas" implicit in the Intellectual Property Clause. The distinctions and similarities belong in a law review article, not a blawg. The existence of some similarities and distinctions, however, needs to at least be in the autonomic hindbrain of authors and other creators of intellectual property.

Most important, though, it does not answer the question that plagues the politics of the Left: if not the status quo, then what? It is all well and good to criticize intellectual property in an abstract sense; it clearly does have significant flaws, and does create some unfortunate inefficiencies caused by translation. Intellectual property is also subject to serious abuse. I am open to suggested alternatives, but they need to be demonstrably superior as a complete system than reliance upon the metaphor of intellectual property.

Ghosts of Feist Present

Note for the humor-impaired: The following letter is a humorous attempt at some education. If you don't find it amusing, keep in mind that I don't find the underlying problems amusing.
 

Dear Angela:

I am the ghost of Feist Pubs., Inc. v. Rural Tel. Servs. Co., Inc. present. I have come to haunt you on an error of copyright law that you made in this week's Writer's Weekly newsletter that originates on your website.

WritersWeekly.com's paying markets are original market listings, created after interviewing editors at each publication. We pay our managing editor to conduct this exhausting work. We do this for OUR readers, not for our competitors' readers. When someone steals our markets, it hurts OUR readers because YOU then have to compete with the copyright thieves' readers for these writing assignments. Theft of our copyrighted material lessens the value of our content and makes it more difficult for OUR readers to get work.

There is just one small problem with this assertion: Under Feist, the work your managing editor puts into creating the market listings does not make them copyrightable. Here is an example of one such listing from this week's newsletter:

CPA Online
Current Needs: "Articles for our monthly e-newsletter and possible future publications."
Payment: Is "flexible" and depends on difficulty of article and experience of writer.
http://www.writersweekly.com/markets/091003-04.html

The listing is an alphabetical compilation of facts divided by date of first appearance in the listing. The individual online listings are slightly more extensive than is the one quoted above, but nonetheless remain factual compilations with virtually no original expression or creative arrangement of entries.

On these facts, the market listings are not copyrightable material. This does not excuse the unfair trade practice of wholesale copying and claim of origination by third parties. The stripping of the Writer's Weekly mark from the material may create a cause of action under the Lanham Act or other trademark law. However, what appears to be at issue does not include copyright infringement.

This leads to another question: whether the listings have been registered. I hope that I need not remind you that you won't be able to sue on a copyright theory until you receive the registration back from the Copyright Office, and that you won't be able to obtain attorney's fees or statutory damages unless the registration was timely (within 90 days of original publication—leaving aside, for the nonce, that the Copyright Act does not define "publication" for textual materials). But I am sure that you're aware of this.

Misuse of copyright is itself a violation of the Copyright Act. Although your assertion of copyright in the market-listing material is incorrect, it does not rise to the level of misuse. What it does do is undermine respect for copyright, which is exactly the opposite of what you should be doing in a pro-author's newsletter. While the name-calling in your post does not rise to the level of defamation, it is close, as you specifically accuse several publications of "theft" without a proper legal basis for characterizing their actions as "theft."

 
Noncorporeally yours,
The Ghost
 

P.S. Nice drapes.

Bob's Country Courthouse

The LitiGator has some interesting thoughts on the Fox v. Franken controversy. He concludes that

The fault in the Fox News case lay with the client, not its lawyer.

I must respectfully disagree with the LitiGator. We have instead the Bob's Country Bunker of litigation problems ("We've got both kinds—client's fault and lawyer's fault!"). In my effort to be fair and balanced, I believe that we need to pillory both of them. The LitiGator certainly raises a valid concern about the "public shunning" approach recommended at RealityChecker: that others who disagree with the fundamental objectives of a litigant will use the same tactics to pillory that litigant's lawyers, even when the litigant in question is controverting an undecided issue of public import. <SARCASM> But that never happens now. AOLTimeWarner would hire me to handle internet piracy litigation in a heartbeat. Lawyers who intern at the ACLU or Amnesty International have no problem making partner at white-shoe law firms. </SARCASM>

The converse, however—not criticizing or sanctioning lawyers who seek to reach a client's improper strategic goals with improper tactics—is a rather subtle, but at the same time foreclosed, difficulty with the Nuremberg Problem. In this particular instance, it essentially allows the firm in question and the three named attorneys (I will not give them the satisfaction of providing more indexable entries to their names, as that is free advertising—just like they provided to Al Franken) to justify tactics that are sanctionable regardless of the nature of the underlying litigation to escape with "I vas only folloving orders." Rule of Professional Conduct 1.2 denies this dubious defense:

A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to paragraph[]… (e), and shall consult with the client as to the means by which they are to be pursued.
   (e) When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct.

Official Comment 1: …[A] lawyer is not required to pursue objectives or employ means simply because a client may wish that the lawyer do so…. In questions of means, the lawyer should assume responsibility for technical and legal tactical issues, but should defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected.

Cf. NYDR 2–110(C)(1)(c), 7–101(A)(1) (a lawyer "shall not intentionally fail to seek the lawful objectives of his client through reasonably available means permitted by law…. A lawyer does not violate this Disciplinary Rule, however, by… avoiding offensive tactics…"), 9–101(C).

Thus, in the Fox v. Franken litigation, we have both improper ends, which justify pillorying the client, and improper means, which justify pillorying the lawyers. The improper end was use of litigation to silence an adverse opinion founded on critical First Amendment concerns, particularly by a purported "news organization." The improper means were the particular allegations in the complaint, especially the scurrilous and unnecessary ¶ 77 that consisted of nothing more nor less than a personal attack on Al Franken that did not relate to the actual causes of action alleged in the complaint (which were frivolous in any event).

I agree that Fox should bear substantial responsibility for this mess, and should be pilloried for it. I propose that Roger Ailes (chairman of Fox News) (disclosure: I had some contact with Mr. Ailes in an official capacity while an active-duty officer during the reign of George II) be required to walk around Times Square for six hours wearing nothing but a Speedo and a billboard emblazoned with the text of the First Amendment and a large, red letter "F." Perhaps he should be joined by his three lawyers, too; but I think that internal discipline within the legal community should be plenty of disparagement for them. The irony that Fox News is one of the few media conglomerates to unabashedly support the most radical form of "victim's rights" amendments has not escaped me. However, the real victim in this mess is not Al Franken. To some extent, it was the American public; but the individual who suffered the most harm was whoever's case was not able to be heard in a timely fashion because Judge Chin was forced to deal with this nonsense. Or, perhaps, even Judge Chin himself; at least he had the satisfaction, though, of smacking both lawyer and client on the public record.

On the Margins
Unfortunately, lawyers as a group have a well-deserved reputation for impenetrable prose, sloppy logic, and elevating form over substance. Lawyers in academia have a bad reputation among lawyers for all of the above. On the margins, though, there are exceptions. One of them is Professor Jack Balkin of Yale Law School. His comments on dissent over Gulf War II bear careful study by para-McCarthyists everywhere, and even by others who just wish to understand the rush to suppress dissent.

   I always thought that the whole point of democracy is to acknowledge the legitimacy of dissent (at least in principle). The arts are even more dependent upon difference. Without dissent, there is no room for literature. Literature, whether pulp fiction or "high church" literary fiction, whether serious nonfiction or Dave Barry column, works only when there is at least an implicit acknowledgement that things might be or become different than they are. It is not very far from recognizing that things might be different to the difficult distinction between should and could. My point is not that every work of literature necessarily examines that distinction; it is that even literature that explicitly disavows that distinction has acknowledged its importance. As George Orwell perceptively noted half a century ago, "[N]o book is completely free from political bias. The opinion that art should have nothing to do with politics is itself a political attitude."

   To put it another way, removing politics and dissent from the text and subtext of a work requires an immense effort and knowledge of political implications, which is certainly subject to revisionism later; consider all the Marxist interpretations in the 1980s of, say, Madame Bovary that turned a personal tale into a political screed on supression of personality in class distinctions (and worse).

   I would go even farther than do Orwell and Professor Balkin: the act of even reading literature is an act of dissent in this society, because literature is not valued by the Powers That Be. And writing is even worse—even worthless garbage like Ann Coulter's intellectually dishonest parroting of positions held dear by some of the Powers That Be. She would be just so proud to be considered a participant in the process of dissent! Of course, some of those who are more overtly dissenters would be offended.

   That our adversarial legal system (and its unfortunate corollary, the two-party system) implicitly holds that truth best emerges from the process of criticizing and attacking ideas seems to have escaped most of our political leaders.

Not Your Father's Disco
Or maybe it is. I'm going to be a bit scarce for a couple of days due to disco—of the spinal kind. L4L5 and L5S1 decided that I'm not supposed to sit at the computer for a few days. Thus, I am; but only for a few minutes. Besides, Vicadin does not make for coherent posts. Presuming that you expect to find any here…

Returning to the "price of books" thread after yet another hiatus—

   This morning's New York Times includes an article indicating that Vivendi Universal intends to cut the list price of CDs for the first time in two decades. According to the article, the wholesale price will be cut from $12 to $9, resulting in an anticipated cut of list prices from $19 to as low as $13. This appears to be a belated reaction to the music piracy issues; had the step been taken proactively (and more aggressively) instead of reactively, however, there is at least a decent chance that piracy might have been controllable.

   What this leaves unanswered is how the price is set in the first place. This leads into the question of how books are priced. There are two traditional formulae for determining the list price of a book.

   
1. Ten times the estimated per-copy printing cost. For a 480-page casebound book, printed on 50lb natural house stock (440 pages per inch), in a print run of 20,000, per-copy costs (August 2003) hover around $1.97, leading to an estimated list price of $20 or so. At the ordinary "long discount," this implies a "wholesale cost" (remember, the books legally are on consignment, not wholesaled) of about $12.
   
2. Six times the per-copy fixed cost. This includes not just the printing (and warehousing) cost for the entire run, but the per-copy cost of editorial, overhead, advertising and marketing, publicity, production, fulfillment for the anticipated sell-through, and the author's advance. For that same 480-page casebound book, editorial costs (which, these days, is largely a joke), overhead, typical advertising/marketing/publicity for a commercial book of this print run, etc., can vary a great deal depending just upon manipulation of the cost-sales worksheet used to price the book (some publishers call it a "profit-loss worksheet," but that is a misleading name). My seat-of-the-pants guess is that total per-copy costs would probably run not more than $3.50, assuming relatively "average" treatment of the book and no manipulation of the numbers. This implies an estimated list price of $21.50 or slightly less. The long-discount price would still be under $13.

So why do the current list prices on casebound fiction as described run closer to $27? At least as implied for CDs in the NYT article, there is a lot of room for cutting while maintaining profitability. <SARCASM> Is it possible that the formulae are being manipulated to justify prices that do not correspond with costs? </SARCASM>

According to the New York Times, NBC and Vivendi Universal have reached at least an agreement in principle to merge. I'd like to give a special thanks to Ed Meese, Reagan's Attorney General, for making this kind of agreement possible. (My "special thanks" is a big raspberry and some hard questions about personal finances, personal interests, and the rule of law.) The Reagan Administration gutted much of antitrust law, and made it substantially harder for antitrust interests that cannot be numerically defined to even be heard.

   The really sad aspect of this "merger" is that on its face it violates the Justice Department's guidelines for determining whether a merger is "questionable," as it depending upon the market definitions the Herfindahl-Hirshman Index even pre-merger ranges from 1780 to over 2300. Under the DoJ's guidelines, an Index value (which is calculated by squaring the market shares out of 100 of each of the comparable market players) over 1800 is to be viewed with skepticism, while a value over 2000 is presumptively suspicious. And that's before getting into the "vertical integration" aspects of the merger, which are actually far more troubling.

   Admittedly, this has less direct effect on publishing than on TV and film; but that is assuming that the HHI levels set in the guidelines are appropriate in the first place. Harcourt is not a market-dominant unit, except perhaps in K–12 education. The qualitative aspects of vertical integration in providing content counsel against looking at just the numbers. In reality, I do not expect that to happen; General Electric is too big a gorilla for the DoJ to want to fight against, especially after its experiences with IBM (which still resonate in the department's culture a quarter of a century later).

Ernie the Attorney has some interesting thoughts on sanctions in the Fox case. I disagree that Fox's attorneys should not themselves be sanctioned, as I think I made clear just after the proceedings in question.

I Don't See Any Method… Sir
Kelly Talcott of Pennie & Edmonds recently posted some interesting thoughts on software and business method patents. Of particular interest, he said:

Let's not, however, ignore the role that practicing patent attorneys have played in this. We all have an obligation to disclose relevant prior art to the PTO as part of the patent application process. For Internet and software patents, our clients are frequently the best sources for that art. Are we really doing our clients a favor when we file applications without making sure that someone has performed a diligent prior art search (commensurate with client resources) as part of the patent application process? Are we helping a client when we secure a patent upon which the client then relies, only to see it invalidated when tested in the fires of a patent infringement lawsuit?

Unfortunately, Mr. Talcott's musings are all too relevant in intellectual property as a whole. His underlying point is valid, too—that the whole concept of "business method" and software patents is open to question.

   I do not know where Mr. Talcott comes down on the concept. In the context of intellectual property as a whole—something that is seldom given enough thought—neither business methods nor software are most appropriately treated as patentable material. Business methods deal with a concept that can be reduced to practice in multiple ways. The key is the concept; and the "right" way to analyze a pure concept is as a trade secret. Software, on the other hand, actually has two components, and looking at those components separately helps illuminate the issue. At least, it is a slightly less charcoal shade of grey.

   Software includes both executable object code—the binary instructions that a computer can actually follow—and some higher-level abstraction of instructions to create that code. It remains possible to write programs directly in machine code. I've done it; and I still bear the scars from that experience. The closest analogy in existing intellectual property law is to the concept of a derivative property in copyright. Consider, for example, Gone With the Wind. (Or, if you have good taste in literature, something else.) The film is a derivative property from the novel. The film is an independent expression based upon the source code. More than one different version of a film could have been made from that same source code; one can even argue that merely adapting it for the 4:3 aspect ratio of the television screen is the same thing, analogous to porting a program from Windows to Linux. The difference, though, is that the exact "expression" of object code for a computer does not matter. The key is still the source code, whether in assembly language, Java, or whatever.

   The farther one's exact expression gets from the source code, the less protection that source code can/should have. A core algorithm is not really expressed in the object code; it is expressed in the source code. The Quiksort algorithm is an excellent (and all-too-current, due to SCO's questionable litigation over rights to Unix source code) example. There are a limited number of ways to express the algorithm. Under copyright law, that greatly weakens the protection given a particular expression. That is exactly what should happen.

   Of course, the intricate intertwining of copyright and patent law, as in the DVDCCA case, presents a Gordian knot. I propose to unravel that knot the same way as Alexander did: by cutting right through it. Patent is just not the right reference frame for analyzing protectability for software. The law of "how much different X must be from Y to avoid infringement" is so much clearer, and better developed, in copyright law that only those who wish to obstruct the progress of science and useful arts have an interest in treating software as part of the patent field.