The most interesting parts of the Washington Post's articles on the Australian raids on KaZaa are, as everyone should have learned to expect by now, buried at the end. That is bad writing, bad journalism, and bad editorial practice. First, we find this:

Speck said the raids are the culmination of a six-month investigation begun when the music industry "identified significant changes in the technical and physical infrastructure" of Kazaa's operations that made it enough of an Australian operation to subject it to that country's law. Kazaa is incorporated in Australia and Vanuatu, a group of South Pacific islands that advertises itself as a tax haven. Kazaa maintains that it is not responsible for the activities of its users and the Netherlands Supreme Court agreed in December. In the United States, the music industry is appealing an April federal court decision saying that the industry could not sue peer-to-peer services for alleged copyright violations. Shortly after, the U.S. music industry began its lawsuit campaign against individual file-swappers, which continues. The number of users of Kazaa has dropped by half since the music industry began its lawsuits.

Frank Ahrens, "Kazaa [sic] Offices Raided in Australia" (07 Feb 04) (emphasis added, fake paragraphing removed for clarity). Considering that where Sharman Networks (KaZaa's putative corporate parent) may be sued is one of the major issues in the entire controversy, one would not ordinarily expect to wade 2/3 of the way into the article to find that assertion. Further, one might ask whether Sharman was offered the opportunity to rebut the theory, or will have an opportunity to rebut the theory.

Next, we have this bit of nonsense:

The raids come during the same week that the Distributed Computing Industry Association — a trade group that includes Kazaa and Altnet — released a business plan it said could make peer-to-peer file sharing legal. The current plan, the third of three released in the past few months, involves copyright protection called "digital watermarking." Previous plans have called for peer-to-peer services to be converted into online music stores, with Internet service providers tracking purchases and billing customers.

Id. (that's lawyerese for "same source as the last one cited"). And the encryption on those watermarks will be broken within three to five weeks after initial use, and somebody will write and distribute the equivalent of DeCSS within a week after that. Then there's the simple work-around of intercepting the outgoing signal when playing the piece and reencoding it—something that one can do with about 40 lines of code (43, actually). This proposal is nothing more than a smokescreen intended to attach some legitimacy to piracy operations.

More on the Electoral College

Over at Nunc Pro Tunc, Yossarian remarks:

I've given the matter some thought, and the best I can come up with is this: the [Electoral College] system may help counter-balance the wholly undemocratic rule of equal suffrage in the Senate. Smaller states have been, and always will be, over-represented in the Senate. By giving larger states a disproportionate voice in choice of Executive, the Electoral College may check the Senate's own undemocratic nature. This only works if the "large" states allocate all of their electoral votes to the winning candidate in that state. But as Scrivener notes, all of the large states do use a "winner take all" system.

"Our Anti-Democratic Ways" (06 Feb 04). The Catch-22 to this analysis is fairly apparent; although, as I think about it, I'm starting to feel like the Spanish Inquisition…

Our main objection to Yossarian's analysis is that it assumes that the states elect the President, whereas the Constitution contemplates that the voters of the states elect the President. And…

Our two main objections to Yossarian's analysis are that it (1) assumes that the states elect the President, and (2) ignores that the method of selecting Senators has changed radically since the Constitution was ratified (Senators are now elected, not appointed by the state governments). And…

Our three main objections to Yossarian's analysis are that it (1) assumes that the states elect the President, (2) ignores that the method of selecting Senators has changed radically since the Constitution was ratified, and (3) fails to acknowledge that Senators are not bound to vote in any particular manner, and most especially not as a single bloc for each state, whereas Electors (at least in practice) are. And…

Our four main objections to Yossarians analysis are that it (1) assumes that the states elect the President, (2) ignores that the method of selecting Senators has changed radically since the Constitution was ratified, (3) fails to acknowledge that Senators are not bound to vote as a single bloc for each state, and (4) improperly assumes that the means of electing the President under Article II must somehow naturally correlate with the allocation of representation in the legislative branch under Article I (keeping in mind, too, that a fixed size of the House, and therefore virtually fixed size of the Electoral College, is a Constitutionally recent development), thereby undermining one of the most important checks-and-balances aspects of the federal system. And…

The comfy chair, an almost fanatical devotion to the Pope, and the soft cushions. And surprise.

The only internally consistent rationale that I've ever found is that the executive branch is a political branch, but it is supposed to be of intermediary representational value between the wholly elected legislature of Article I (under the fiction that we can use the contemporary election of Senators as a proxy for original intent!) and the wholly unelected judiciary of Article III. Internal consistency, however, is not enough; it is not consistent with the records of the Convention, with contemporary writings, with the "administrative state" model that has developed since sick chickens went off the menu, or with common sense.

Another !snort kersnuffle! note: Washington Post fails to timely renew its domain name. Rather interesting that a major publisher, with a major web presence, would be so… well, clueless is the nicest thing I can think of to say.

Between the Lines

Yesterday's Publisher's Lunch included a fascinating item on the realities of book inventories, fulfillment, print runs, etc. With apologies to Mr. Cader—I think his analysis is good, but doesn't go quite far enough—I'm going to quote a significant part of the story, along with my comments.

Perhaps Baker & Taylor senior vp of merchandising Jean Srnecz underscored the importance of the topic at hand the best, proclaiming, "Supply chain people are 'the new gods.' In some cases, power has shifted from sales to the supply chain people." In a climate of "shorter life cycles, higher consumer expectations, and technological changes," Srnecz believes "The operations part of the industry is what will take us to the next level."

Her plain-speaking advice underscored a host of simple inefficiencies in standard practices: "Many publishers have taught buyers to buy a lot of upfront because you won't get it later." But when print runs are oversubscribed they reduce all orders equally. "What a dumb strategy…. Unfortunately publishers have taught customers to play the game theory and lie, and they get a payoff."

Other advice include [sic] "Acquire what is saleable" and don't replicate titles that already exist. Slow turn-around time on orders is a real hazard, and "We [the industry] really suck at this." In particular, she urged children's book publishers to find "a way of turning reprints around quicker," suggesting more standardized trim sizes and North American suppliers. "If you can't reprint them, you can't sell them."

Comment: You can probably guess by now that the last paragraph is the nub of this argument. It all depends on what you mean by "what is saleable." If it means something like "something that we've already proven we can sell"—which, under "modern" American management theory, is the most-probable meaning—the shape of the industry is going to change pretty radically. The divide between the "big five" (or however many are left after the next wave of consolidations) and the rest of the industry will grow even greater, because the biggest publishers will no longer have an incentive to take risks on anything that doesn't look just like everything they already have in print. Innovation will be pushed down to smaller presses. For example, FSG would not publish Presumed Innocent; instead, that would have fallen to Grove Atlantic, or perhaps someone smaller. Come to think of it, that's not too far off discernable trends as is…

*  *  *

Mike Shatzkin of the Idea Logical Company gave concrete examples of his firm's analytic process for taking Barnes & Noble sales data compiled by Bookscan and revealing "very particular details in an actionable way." Echoing the theme of many participants—that "Context is everything; sales data without inventory data is hard to make sense out of"—Shatzkin's process reveals countless examples in which the numbers can show when the chain is undersupplied on backlist titles that are turning quickly (and oversupplied on backlist titles that are not). Notably, his analytics don't apply to the top of the list, which everyone is watching closely, but rather ones like "the eighty-ninth best performing title" from big company and its peers. He characterizes these "books underneath the very top layer" as "the band of opportunity."

Comment: The basic idea here is interesting and worthwhile; but, as someone with more than a bit of scientific background, I find the stated source for data downright offensive. A focus on B&N data from Bookscan is so underinclusive that one cannot draw a statistically valid inference from the results, unless one's target audience is exclusively B&N. By my count, that's less than 30% of the market in books, even throwing in B&N's online site, and much less so for fiction and serious nonfiction.

Between the Lines: The common thread in these two excerpts, and in the rest of the writeup, is a drive for prepublication certainty. This should not surprise anyone who has watched the industry over the last couple of decades. It is also extremely dangerous, because drawing conclusions from it depends upon one huge, easily disprovable assumption: that past purchasing and inventory records predict the future in a time of constant changes in media types, mixes, purchasing habits, and uses. For example, Joanne Rowling was not predictable. More to the point, the follow-on effects of her success would have had an insufficient statistical base for analysis for almost two years after publication of Philosopher's Stone (to hell with your dumbing-down of the book, Scholastic—the kids got it, even if you didn't). This then becomes a self-fulfilling prophecy.

I can understand the Perfesser hating the litigator he refers to here, but we're not all bad. By the same logic, I should hate all securities and corporate lawyers for their egregious misconduct over Enron, and perhaps all law professors on account of Professor Kingsfield. Wait a minute… that's gone a bit far…

What irritates me about the whole thing is the obvious political grandstanding by Mr. Ritchie and his client. I think it no coincidence that it was filed in Tennessee; back in the heyday of obscenity trials over porn films, Memphis was the favored location for filing such suits, presumably because the jury pool would be pro-prosecution. It's a much better argument for courts actually enforcing Rule 11, since the states have failed so miserably in regulating the profession.

How Squeaky Is That Wheel?

All across the blawgosphere (and blogosphere), one finds a raging debate on whether the Supreme Court is acting as an antidemocratic institution. Leaving aside for the moment that I think that essential—one need not even resort to invoking "mob rule" as a potential peril of "pure" democracy to realize this; one need only look at Sarajevo, or at least at what's left of it—I find the corresponding silence concerning the Electoral College far more troubling.

Although we all know better (or at least those of us who were paying attention in high school do), we continue to talk about Presidential elections as if the President is elected by the people. That isn't even a plausible fiction. Instead, the process looks something like this:

1. Each state (and the District of Columbia) is assigned a number of electoral votes equal to the number of members it has in both houses of Congress combined. Thus, the smallest state has three electoral votes: two for Senators by the virtue of statehood, and one for its population-allocated minimum of one Representative. (As an aside, it seems a bit bizarre that in a growing nation we've stuck with 435 Representatives, fixed by law, for so long, when it takes 640 MPs to govern England.)
2. At the Presidential election, the voters vote for slates of electors—one elector for each electoral vote. These electors have pledged their votes to specific candidates.
3. After the votes are counted, the state's electoral votes are allocated to the various slates. In all but (if I recall correctly) two states, this is "winner take all;" the other two are proportional, but are small states (Nebraska and one other). Thus, getting all of Illinois's electoral votes requires only a plurality in the state's popular vote.
4. In mid-December, the Electoral College meets and casts the actual votes to elect the President. If the College cannot do so (say, there's a tie due to a third-party candidate earning some electoral votes), the election is thrown into the House of Representatives—which continues to vote on a state-by-state basis.

The last election illustrates this. Al Gore had at least half a million more popular votes than did George III, but where those votes came from was his undoing: George III won most of the larger states. Without the Electoral College, there would not have been a Bush v. Gore. I do not see that it continues to serve any valid purpose, and is far more dangerous to "democracy" than our rather restrained judicial system.

The application of this to the publishing industry is left as an exercise for the reader, after close comparison with One Hundred Years of Solitude.

Some random notes from around the blogosphere:

• Professor Froomkin notes the essentially meaningless opportunity for Hamdi to consult his lawyer, or at least listen to his lawyer (since he wasn't allowed to answer questions).
• Noted without much comment, Phil Carter discusses a bit of the military records issue surrounding George III's service during 1972. I cannot comment because a couple of his remarks impinge on my NDA; but, whether I agree with everything said or not, the post should indicate that there is substantial evidence that could be obtained, if someone would bother to do it. I have even more questions that I would ask—but then, I was a CO in the USAF for much the better part of a decade, so I'm familiar with some USAF/ANG requirements (that would have generated records) that Carter is not.
• A very short followup on one of my earlier posts—the Perfesser notes that California Business and Professions Code § 17200 is a subject "near and dear to [his] heart." As a perhaps-irrelevant point of interest, there is no difference in the Sony case between the legal basis for suit under § 17200 and the correlate laws of 30-odd other states. These are generically referred to as "UDAP" (Uniform Deceptive Acts and Practices) statutes; prominent examples include CUTPA (Connecticut Unfair Trade Practices Act), the ICFA (Illinois Consumer Fraud Act), and three or four others. The distinction with § 17200 is that California allows a party without a traceable injury to act as a private attorney general. Since the "victims" in the Sony case include several who attended one of the referenced movies on the strength of the advertisements that included the phantom reviews from the phantom reviewers, that's not an issue in this case. Consumers in Illinois, Connecticut, or many other states would have the same ability to file a virtually identical lawsuit—and the "state of residence of the defendant" issue is not relevant; it is a false conflict. See, e.g., Perry v. Household Retail Servs., Inc., et al., 953 F. Supp. 1365, 953 F. Supp. 1371, 953 F. Supp. 1378 (M.D. Ala. 1996) (holding, among other things, that an Illinois corporation could be sued for violating the ICFA in Alabama because any conflict with Alabama law was a false conflict) (and yes, I was the principal counsel for the plaintiff, even if my name appears far down the seniority list; I did the work and developed the theories).

Of Course They're on Drugs...

… it's Rolling Stone! The excessively venerated editorial staff at Rolling Stone—many of whom make Hunter S. Thompson look positively sober, based on their questionable judgment—has released its list of the top 500 albums of all time. Yeah, right. Unlike Jeralyn Merritt, I do not have 40 or so of the top 50 in my basement.

It's been clear virtually forever that musicianship is not one of the criteria used in the popular music press—RS being a repeat offender, but far from the worst recidivist—in determining the "value" or "greatness" of an album. Consider, for example, the number two album on the list, the Beach Boys' Pet Sounds. Sorry, guys, but one cannot call a studio album filled with off-pitch notes and inconsistent (and apparently accidental) syncopation "great," particularly given the opportunity to correct things present. Work of that quality at a dress rehearsal, or even a practice session, would get a classical musician fired from a middling-or-worse post-romantic orchestra. We'll leave the banality of the songwriting out of it.

At least a couple of RS's long-running obsessions seem to have much less influence than one might otherwise expect. The highest Springsteen—the overblown Born to Run—doesn't appear until number 18; the highest Lead Balloons Led Zeppelin—the waste-of-dead-dinosaurs eponymous album—holds off until number 29. On the other hand, very much as expected, the top 100 contains nothing from the Moody Blues, or Genesis (or, for that matter, Peter Gabriel), or Dire Straits (or, for that matter, Mark Knopfler), or Renaissance, or Jethro Tull, or Procol Harum, or Al Stewart (the highest placing for any of these artists is 187!); the first few Alan Parsons Project albums are notable by their absence; only one Simon & Garfunkel and one solo Paul Simon; and so on. On the other other hand, four of the top ten albums are from the Beatles, including two on which one can hear studio-producer bitching and moaning and dropped instruments in the background. My guess is that the reviewers were completely incapable of distinguishing performance from songwriting (which, come to think of it, explains a lot about Bob Dylan's prominence and Joan Baez's absence). True greatness requires both; they thought it only required one.

Either that, or I didn't do enough LDS back in the 70s.

More Snorting and Kersnuffling…

but this time about advances. It appears that Jack Welch, the former chairman of GE, has gotten himself another book contract. According to the story,

The book, which will be called Winning, did not quite fetch the advance of Jack: Straight From the Gut, which he sold in 2000 without any written proposal for an extraordinary advance of $7.1 million. But the $4 million HarperCollins is said to be paying is still a hefty sum for a business book, or any book for that matter.

*  *  *

When Mr. Welch got $7.1 million for his memoirs in 2000, with Time Warner Trade Publishing winning a frenzied bidding war with rivals including HarperCollins, the Doubleday unit of Bertelsmann and the Simon & Schuster unit of Viacom, the price was one of the highest for a work of nonfiction. Since then Bill Clinton and Hillary Rodham Clinton have each sold books for larger amounts. Sales of Straight From the Gut were, however, somewhat disappointing, industry executives said, partly because it went on sale on Sept. 11, 2001. (Time Warner executives have said the book was profitable.) Still, HarperCollins is willing to bet a hefty advance that Mr. Welch's imprimatur is powerful enough to propel sales of a business how-to book.

Hugo Lindgren, "Welch Makes Another Major Book Deal," New York Times (04 Feb 04) (typography corrected and fake paragraphing removed for clarity).

What I find most interesting about this is the implicit admission of deception and dodgy accounting practices behind Straight From the Gut. I know it's a bit early, with no caffeine and all, but let's do a little math. (Caveat: the following is based upon industry-standard practices, and the exact results might well be different—although I think not the conclusion.)

1. Under standard industry practices for a casebound book, royalties would have been around 12% of cover price up to 20,000 or so copies, then 15% of cover price beyond that. Because a lot more than 20,000 copies were sold, for simplicity we'll just treat this as a 15% royalty on the whole print run.
2. Publishers typically claim that earn-out of the advance represents the break-even point for both the author and the publisher. (As we'll see below, this assumption is hogwash.)
3. At a cover price of $29.95, each book earned $4.4925.
4. With an advance of $7.1 million, and excluding support for multi-city book tours and signings, earn-out of the advance would occur, if all books were sold at retail (because royalties on book-club books are significantly less, when they are even offered—most book-club deals are flat-rate payments, of which the author gets 25-50%), would be $7,100,000 / $4.4925 = a hair over 1.58 million copies.
5. Although it is impossible to state with any real certainty exactly how many copies were sold, sales were termed "disappointing." Analysis of those general figures available indicates sales in the 600,000-800,000 range (a range, one might ad, that would cause terminal mania for 99% or more of all published authors). Thus, at the high end, half the advance remained unearned, and probably more than that.
6. The publisher now claims that the book was "profitable."

Even a complete maroon would understand that the math leading to item 6 contradicts item 2. It in fact leads to the advance for this newest book of about $4 million—an achievable target on comparable sales with a slightly higher cover price, since it's highly doubtful that the book would be available this year and unlikely for next year. We're thus looking into 2006.

Now, with due respect to Mr. Welch, the last book deserved even fewer sales than it garnered. The advice in it was warmed over and obvious to anyone who even managed or commanded a logistics-based unit in the U.S. military, among other places. It was poorly written, self-aggrandizing, misleadingly organized, and overpromising. (No, I didn't buy a copy; I borrowed it from the library.) The conclusions that one can draw about this, when compared to the $5,000 advances offered to first novelists who are not themselves celebrities, should give one pause. And more than that.

More snow, anybody? We got an inch or so more last night. I think I saw some snowboarders out snorting from the neighborhood kids' fort, but I couldn't be sure. At least there was some sun today, so most of the roads are now bare. And wet. And icing up, but who's counting?

Snort. Kersnuffle. More nonsense about reviewers.

As far as the proportion of nonfiction reviews goes, I am less concerned about that than the proportion of less-than-happy reviews (since the NYTBR doesn't do vicious ones, except at specific editorial invitation—which it continues to deny). No matter how good one's evaluation of books based on the cover, whether author's name, cover art, whatever—I'm referring to extrinsic properties, as opposed to what is actually on the page—a certain proportion of what one reads is crap, or at least a severe disappointment. For example, I still recall my disappointment of two decades ago when Le Guin's Always Coming Home was published; it is a slightly-better-than-mediocre book, and simply not up to the standards of her preceding (or following, for that matter) work. The difficulty is a combination of reviewers' self-censorship, often refusing to finish a work and review it when it starts disappointingly, inexcusably low standards, and editorial/advertising department pressure for "happy" reviews.

But, if one needs more, and more-considered, nonfiction reviews, one can always go to the New York Review of Books. Outside of marketing-category magazines like Chronicle, Locus, and RT, there isn't very much in national-circulation reviews available to typical readers that emphasizes fiction. Thus, the NYTBR is filling a marketing niche, even with the relatively low proportion of fiction reviews that it now prints; and trying to go outside that niche to an area of greater competition is not the soundest business plan I've ever heard of. One cannot assume that one will maintain current dominance in the new market niche; look what has happened to Toyota in mid- and full-sized pickup trucks, to all of those children's imprints from successful editors that last about three years, and so on.

Marvin the Misunderstood Manuscript

Early this morning Making Light, the blog of Tor editor Teresa Nielsen Hayden, offered a fascinating and worthwhile discussion of the art of rejecting manuscripts. It's a very educational look at authors' complaints about rejection letters from the viewpoint of a leading speculative fiction editor. Keep that last in mind—as valuable as it is, being something that authors should read before they first submit a manuscript; I hope she will make it available in a more-permanent and more-visible form—because the perspective behind it is just a bit too narrow.

Nielsen Hayden offers the following list of reasons for rejecting a manuscript, presumably in some sort of hierarchical order:

1. Author is functionally illiterate.
2. Author has submitted some variety of literature we don't publish: poetry, religious revelation, political rant, illustrated fanfic, etc.
3. Author has a serious neurochemical disorder, puts all important words into capital letters, and would type out to the margins if MSWord would let him.
4. Author is on bad terms with the Muse of Language. Parts of speech are not what they should be. Confusion-of-motion problems inadvertently generate hideous images. Words are supplanted by their similar-sounding cousins: towed the line, deep-seeded, incentiary, reeking havoc, nearly penultimate, dire straights, viscous/vicious.
5. Author can write basic sentences, but not string them together in any way that adds up to paragraphs.
6. Author has a moderate neurochemical disorder and can't tell when he or she has changed the subject. This greatly facilitates composition, but is hard on comprehension.
7. Author can write passable paragraphs, and has a sufficiently functional plot that readers would notice if you shuffled the chapters into a different order. However, the story and the manner of its telling are alike hackneyed, dull, and pointless.
   (At this point, you have eliminated 60-75% of your submissions. Almost all the reading-and-thinking time will be spent on the remaining fraction.)
8. It's nice that the author is working on his/her problems, but the process would be better served by seeing a shrink than by writing novels.
9. Nobody but the author is ever going to care about this dull, flaccid, underperforming book.
10. The book has an engaging plot. Trouble is, it's not the author's, and everybody's already seen that movie/read that book/collected that comic.
    (You have now eliminated 95-99% of the submissions.)
11. Someone could publish this book, but we don't see why it should be us.
12. Author is talented, but has written the wrong book.
13. It's a good book, but the house isn't going to get behind it, so if you buy it, it'll just get lost in the shuffle.
14. Buy this book.

This is a useful list, but it leaves a lot of uncovered ground, particularly in nonfiction. I offer a few more reasons to put on the list:

0.9 The author has filled the cover letter with outrageous puffery (or worse, verifiable untruths) that the editor will surely spot.

1.1 The author has sent a syllabus and writing sample when we asked for the full manuscript (or vice versa).

1.2 The author has plastered the manuscript with copyright notices and constant assertions that the idea(s) is/are new/dangerous/valuable/unique.

1.3 The author is playing in somebody else's sandbox without permission. This ranges from media-fiction novels to workbooks based on bestselling self-help books—especially when submitted to a different publisher than the source or authorized licensee.

4.1 The author is on bad terms with the Muse of Logic. Although the sentences are in acceptable English, they substitute grandiosity for thought, being rife with non sequiturs, unstated assumptions, Olympic-caliber conclusion jumping, poor math skills, ad hominem arguments, straw-man attacks, and other grade-school-level fallacies.

4.2 The author is on bad terms with the Muse of Research. Although the subject is technical or controversial, the author has provided no reference material, perhaps not even a bibliography, and is not a recognized expert in the field.

5.1 The author's competent basic paragraphs are self-contained units that bear little relationship to each other. There is no there (or argument, or exposition, or story) there.

6.1 The author has a moderate (or worse) neurochemical disorder, and has submitted a book on a technical matter without any apparent qualifications or real familiarity with the matter.

6.2 The author has a moderate (or worse) neurochemical disorder, and has submitted a book based upon a conspiracy theory that one cannot follow from paragraph to paragraph.

7.1 Although the writing is technically adept, there isn't a character present who could stir up any reader involvement; the characters are all at best avatars of the author and the author's friends, but more likely are props for an idiot plot.

9.1 The author is filling a publish-or-perish requirement with little or no originality.

11.1 Someone could have published this book three years ago, but it will be entering a mature, cannibalistic marketing niche dominated by two or three other books without clear superiority.

11.2 We are already under contract with a more-established author for very similar material.

14 (replacement) Recommend to the acquisition committee that we buy this book (the reality is that a completed serious nonfiction manuscript ordinarily cannot be acquired by a single editor).

I would also quibble with the placement of item 13; it belongs at least a couple of considerations earlier, at least for nonfiction and mainstream fiction. Nonetheless, this is a useful list, and the remainder of the post is, umm, educational for those who do not know how the publishing industry really works.