Moving slowly into the twenty-first century…

Reed-Elsevier, the 500kg gorilla of academic publishing known all too fondly to lawyers and law students for its involvement in legal research (Lexis-Nexis and Matthew Bender, among other sources), apparently has decided to all authors of academic journals to post their articles in plain-text form online. Gasp! Shock! Horror!

What this really points out, more than anything else, is the unfairness of Reed-Elsevier's policy of taking the copyright for works published in its journals. In the US, this is often done with a (legally indefensible but very expensive to challenge) WFH claim; overseas, R-E and its competitors require a transfer of the copyright. There are a few exceptions to this; but exceptions they are. Even law professors fall prey to the same thing: If you look in the front of the Harvard Law Review, or virtually any other law journal, you'll see only a notice of copyright to the publisher; and copyright notices actually on the article are almost always to the publisher, too.

To say the least, this is an unfair practice, and a needless one. What the journals really need is an unlimited nonexclusive reprint right—not the copyright itself. R-E's claim that its journals are so expensive because it costs so much to prepare articles—admittedly, including the peer-review process—for such a limited audience both misstates the obvious and presents a chicken-and-egg problem. The obvious: That the production costs of these journals are more than recouped with the advertisements. The chicken: The limited audience. The egg: The price, frequently thousands of dollars a year. It need not be so expensive; JAMA is still overpriced at $165, but it's weekly, and postage adds up; ditto for the New England Journal of Medicine at $149. On the other hand, Cell from R-E costs $1,068 per year—and it is a journal that few cell biologists can do without, whether in academia or industry.

Perhaps nowhere else in the pantheon of copyrightable materials is the primacy of information over expression so obvious as in scientific papers. As Bill Clinton might have said if he understood science, "It's the data and conclusions, stupid!" The misuse of WFH and mandatory copyright assignments only locks knowledge up in a way that greatly exceeds any conceivable need for doing so is unacceptable. Oops. I just realized the conceivable need: Because they can, and according to one set of accountants increases their revenues.

As a certain fictional character once said, one can make more money by selling to everyone cheaply than to a few at an exhorbitant price. But then, she was a whore who enjoyed her work. Any disreputable inferences from this based on the preceding discussion are probably intentional.

The Perfesser rightly wonders about the revived-for-the-fiftieth-time hearings on censoring cable TV now making their way through Congress. I wasn't even old enough to vote when I had to deal with censorship for the first time, in a relatively small school district that has had the dubious distinction of being intimately involved in three Supreme Court cases on the first Amendment. One brownie point if anyone can name the school district, and another if anyone can correctly name all three cases.

In any event, one school board member—we'll call her Mary, which in fact was her real name, but she's a public figure so this can't possibly be defamatory—managed to get elected through strategic voting in at-large elections. (That alone should give away that this was some time ago.) Mary was very concerned about the disrespectful, unruly, and downright immoral behavior rampant in the middle and high schools at the time. She introduced a number of resolutions proposing school prayer and what amounted to religious and "moral" standards for faculty, which fortunately were often voted down. Of more interest, Mary supported the efforts of an even-more-obnoxiously bigoted fundamentalist group, all of whom lived in one neighborhood near the border of another school district, to restrict access to some books as inappropriate for impressionable teenagers. This "restricted access" would have included removing the books from any syllabi on which they appeared and placing them on closed shelves in the school libraries.

One of the books explicitly named was science fiction. The rationale for restricting access was that it encouraged disrespect for authority and extramarital affairs, and particularly those involving young women. Those of you with a sense of irony can probably guess which book was at issue.

All of which leads me to ask a question: Would a broadcast of Nixon's tapes be an "inappropriate" program without substantial beeping, and even outright censorship? Then there's the core question: what exactly is "inappropriate" or "indecent" or "obscene"? If blowing someone's head off is not a reasonable thing for "children" to see—in terms of the intellectual honesty, I'd include about 400 members of Congress in that group—do we need to censor Fox News, and CNN, and MSNBC, for showing anything relating to Mr. Berg's demise?

The difficulty with all of this is who gets to define the terms—especially if it's some fundamentalist preacher too busy being indicted for tax evasion to pay any attention to his flock. Potter Stewart's thoughts are not helpful, especially if the apocryphal story that he responded "Once, off the coast of Tangier" when asked by his clerks whether he had ever seen any obscene films happens to be true. The "community standard" approach is perhaps a bit softer; but then we still end up with Memphis judging Times Square. Then there's the "hidden agenda" question. Consider, for example, Native Son, which in the end is about the consequences of an "obscene" act. Do we allow a group with a hidden agenda to censor Native Son because there is some material in it that might be "obscene"? Be careful how you answer… because this is not a hypothetical. I had to deal with this in the last few years as a concerned parent on behalf of my children. In this school district, which includes both the University of Illinois and the National Council of Teachers of English.

I'm not a fan of "slippery slope" arguments; but censorship is one area in which the slope is indeed so slippery that they have some credibility.

Yet more proof of just how corrupt (or at least dishonest) the music business is: How much has the artist who created the cover of Sgt. Pepper's Lonely Hearts Club Band made from that album since it was first released?

1. £147,519
2. £19,500
3. £2,700, plus some really, really good grass
4. £200
5. £2.80

Answer here.

A follow-up for the Perfesser:

Virtually all multibook contracts—regardless of their nature, and even including fiction!—include "completion by another author" clauses. From the publisher's perspective, this is to guard against precisely what happened to Manchester's multivolume biography of Churchill: partial publication of early volumes, followed by noncompletion of later volumes. From the author's perspective, it essentially allows publishers to give their children plastic surgery so extensive that they end up a different species. (No matter how professional the writer, every book is in some sense the writer's offspring.)

As a rule, these clauses are non-negotiable. The best case for the author is restricting noncompletion to literal noncompletion (that is, the manuscript is not turned in within five years of the due date); but only a handful of authors have the kind of clout necessary for such a change. However, what is essential is to make sure that only the publisher's editorial judgment may be used to determine whether the manuscript is "satisfactory"—or you'll end up in court, with no good solution for anyone. Unfortunately, it is becoming more and more common for publishers to struggle to find an editorial justification for rejecting or modifying a manuscript because the publisher discovers that it may have made a "bad bargain." (Yes, I have several matters running behind the scenes right now with exactly this problem.) When the publisher's general discretion is an acceptable reasons, one must turn to Chodos and expensive litigation. It's actually simpler and cheaper for everyone to leave all of the discretion to the editors, and not allow the S&M folks to stick their noses in—especially when, as in Chodos and perhaps most similar disputes, the editor who acquired the book is out of the picture at the publisher.

All of which is a roundabout way of saying "It depends (but probably so)."

Just a quick note: There are some archive problems right now that will require manual editing of the blawg. Links to archives will not work. I'll fix the system Real Soon Now.

OK, they're fixed. I think.

An Exam Question

The US military (and Army in particular) have no "clear, overarching policy" to deal with sexual assaults. On the other hand, there is such a policy for dealing with individuals who more than one engage in consensual homosexual activity (under the services' definitions, one need not even go so far as trying to pull a Clinton distinction of "sex"!). Discuss.

Less Than a Third of the Story—and Not Fit to Print

For a really poorly researched article on e-book piracy, try today's NYT. The article doesn't even mention Certain Ongoing Litigation, or author involvement. Of course, this shouldn't surprise one too much, given the NYT's posture in Tasini: the reactions and rights of copyright holders for printed material don't seem to get a lot of respect.

The Perfesser invokes John Yoo's memo asserting roughly that "terrorists have no Geneva Convention rights" in his objection to the "law professor letter" on Abu Ghraib. With due respect to the Perfesser, the law professor have by far the better of the argument, but perhaps not for the reasons one might expect.

It appears that the military legal establishment, which includes experts with years of study of not just the text of the various conventions (don't forget the Hague Convention!) on treatment of prisoners and noncombatants but the military context, was completely excluded from the drafting and decision process. This is not the first time we've seen this in this administration; or, for that matter, in any previous administration since the beginning of the Cold War. If there is one thing that we should all have learned over the nearly four centuries since Gustavus Adolphus established the modern court-martial, it is that military law is meaningless when not in context. Regardless of any abstract attraction of Yoo's position, it is curiously contextless. It reflects only the abstract policy concerns of this administration. (It is also bad rhetoric in that it pays insufficient attention to alternative theories and courses of action, which is not appropriate in a document provided for the purpose of advising political decisionmakers.) It does not make a satisfactory effort to encompass the context of current interpretations of international law, such as the Balkan situation of the 1990s; of the history of US/Persian Gulf/Islamic/Arabic relations; or, most critically, of the history of US armed forces in asymmetric warfare (which is spotty at best).

Functionally, this is nothing more than the old technique of dehumanizing the opponent to justify extreme measures against him or her. Leaving aside the disreputable history of the technique, it is just plain bad strategy when attempting to employ military forces. There are certainly flaws in the "law professor letter;" but at least the policies it implies are not inherently counterproductive. If there is a "suicide pact" in this disgusting mess, it is the Yoo memorandum (or at least the policies it supports). Suicide is something one does to oneself. Failing to use all defenses may be exceptionally dangerous; but it is not suicide.

Update: Phil Carter's comments, although perhaps not so disdaining of the DoJ's position, indicate that I'm not the only officer who later went to law school who questions both the constitutionality and the wisdom of this administration's approach to interrogating alleged terrorists.

It looks like Michael Moore has found a way to release his latest film. Regardless of the merits of the film—I have not seen it, and do not mean to imply any assessment of its merits—Disney was wrong, wrong, wrong to breach its distribution agreement, particularly for the reasons that have been discussed in public: possible jeopardization of tax breaks on unrelated projects in Florida. This recalls NewsCorp's pulling of Christopher Patten's book on Hong Kong and the PRC takeover in 1999, again for fear of jeopardizing other unrelated transactions with the PRC. If anything, this points out that antitrust scrutiny of organizations that have substantial involvement in First Amendment-related activities should be more searching than those that do not.

<SARCASM> Yeah, that's going to happen Real Soon Now. </SARCASM>

The whole "partial birth abortion" controversy sheds considerable light on so-called "judicial activism." In a decision issued today, Judge Phyllis Hamilton noted that "activism" isn't limited just to judges:

Nevertheless, while recognizing the importance of the issue, this court need not articulate the precise degree of deference to be accorded the congressional findings in this case. That is because, even if this court were to assume that the findings are entitled to the most stringent standard of deference advocated by the government and Congress: that of substantial deference, the court concludes for the reasons set forth below, that Congress has not drawn reasonable inferences based on substantial evidence, and its findings are therefore not entitled to substantial deference.

Planned Parenthood v. Ashcroft, No. 03-4872 (N.D. Cal. Jun. 1, 2004), slip op. at 84 (PDF, 527kb). This far from the most damning passage in Judge Hamilton's opinion.

As noted, some of the "findings" made by Congress include legal interpretations of Stenberg and other Supreme Court jurisprudence. There is no dispute that this court reviews issues of constitutional law de novo. Accordingly, Congress' [sic] legal conclusions and its characterization of the Supreme Court's holding in Stenberg, and any additional legal analysis, is not entitled to deference by this court. Nor are any of Congress' [sic] legal conclusions, which may be disguised as factual findings, entitled to deference by this court. However, to the extent that such interpretations provided Congress with a framework for its factual findings, the Court discusses those findings below and notes that many of Congress' [sic] legal interpretations are inaccurate and mischaracterize Supreme Court precedent.

Id., slip op. at 68. It seems, then, that "activism" cuts both ways, if any way at all. One cannot argue that a court's actions in carving out a new right are "activist" when Congress's actions in defying the "judicial power" of the Supreme Court on a constitutional issue are not. At least, not with simultaneously intellectual honesty and a straight face. In other words, "activism" is action not in accordance with one's ideological goals.

Teresa Nielsen-Hayden—a senior editor at Tor—was much too nice to a vanity press today, whether on general grounds or for that particular operation. I wouldn't even give them the benefit of the doubt as being possibly well-meaning but incredibly naïve. But then, I'm a suspicious SOB who actually reads contracts and marketing bullshit for fun and profit. Or, at least, attorney's fees.

This leads to a note on printing costs. At the back end, I have a slightly-out-of-date estimator on the main site. (I'm in the process of updating it now; but that involves getting a total of 750 or so quotes from ten different printers and brokers.) This is intended only to give slightly-high ballpark figures to help people see just what the profit margin is for vanity presses.

But that is the back end only. The front end is much more complex: Just how does one know how many pages a manuscript will occupy? In my copious spare time, perhaps I'll convert my stable, well-tested castoff spreadsheet to JavaScript and put it on the main site. For those scratching their heads, the casting off is the process of making that estimate, including allowances for different page sizes, typefaces, leading, paragraph length, footnotes, illustrations, chapter breaks, callouts, forewords, afterwords, author bios, etc. It can be fairly simple for fiction and other simple, pure-running-text books; for fun, try doing a physiology textbook…

Although it's a bit late—several weeks, in fact—the Chicago Tribune has an interesting article this morning on adhesive arbitration clauses. (Disclosure: I have already argued this one—with the same defendant. And I lost (Easterbrook, J.) on appeal after winning in the district court (Conlon, J.).) This gets back to the old chestnut from first-year contract law: When is a term unconscionable because it relies upon one side's vastly superior knowledge and bargaining position, particularly when it is a term of legal art not otherwise related to the substance of the transaction?

Authors, this does matter to you, even if you're not worried just about whether your purchase of A Certain Brand of Cow-Spotted Personal Computer™ may turn out to be a bad one. More and more publishing contracts are imposing arbitration without willingness to negotiate. Although a publishing contract is supposed to be "negotiated," the publishers who impose an arbitration clause do so with no willingness to negotiate it, except perhaps by allowing the parties to agree on an alternate location.

Leaving aside for the moment whether these clauses are fair—as a rule, they are not; the Tribune article demonstrates four unfair aspects of that particular arbitration clause, although it never comes out and says so—an arbitration clause in a publishing contract includes several provisions of which the author must beware.

• Forum: The clause should specify the arbitration authority and rules. The most even-handed of the major forums available in the publishing context is the American Arbitration Association. Designation of the International Chamber of Commerce, for example, is not acceptable in this context; the ICC does a good job with multimillion-dollar international shipping disputes, but not IMHO with intellectual property or under-$100k disputes.
• Venue: Usually, the clause will designate one particular location—the publisher's hometown—for the arbitration. Particularly for smaller publishers, this clause should allow the parties to agree upon an alternate location. This is important if the publisher moves, goes out of business, is sold to another company, and sometimes just because all of the necessary records and witnesses might be somewhere else. Too, it is important outside of New York, Los Angeles, and Chicago, because the pool of arbitrators qualified to deal with publishing-law disputes outside those areas is vanishingly small—and, contrary to the claims of arbitration advocates, at least some familiarity with typical industry practices really is necessary for an arbitrator to be even-handed.
• Cost: Arbitration is not free. One of the dirty little secrets of arbitration is that it is ordinarily vastly more expensive than a small-claims-court action; in the case described in the Tribune article, for example, the fees the two sides would have had to pay the arbitrator exceeded the value of the computer at issue. At minimum, these fees and costs should be borne equally, with the winner recovering from the loser; this is still unfair, but better than silence, because some arbitration fora require that the party demanding arbitration of a particular dispute Better still, the party that requires arbitration should pay up front for the privilege, especially if there is a cost-and-fee-shifting provision.
• Binding: If one is going to the inconvenience of arbitration—make no mistake, these clauses are not imposed for the author's convenience—one at least should expect the result to hold up. If the magic word "binding" is not in the clause, take it to a lawyer who understands these things. Sometimes other language can substitute for that word; sometimes, however, it's an illusion. Yes, Virginia, there are publishers (and others) who impose egregious one-way arbitration clauses.