Almost Too Funny

Sometimes dubious businesses seriously outsmart themselves. In this particular instance, it's a group of questionable-to-fraudulent literary agents who have banded together. Sort of.

The so-called International Independent Literary Agents Association (I'm not going to dignify it with a link, nor correct the grammar) apparently consists of nine agencies. At least, one would assume so; the webpage says "ten top" agencies, but there are only nine listed. Among them, one finds a couple of names I don't recognize, several that I do and for which I have documentation of inappropriate practices… and an agency run by the former office assistant in an agency whose principals were convicted of fraud. Among the nine agencies, Agent Research and Evaluation has record of exactly zero verifiable sales to commercial publishers for eight of them, although most of the agencies have been in business for several years. Neither are there any verifiable sales by any of those agencies to commercial publishers on Publishers' Marketplace. Conversely, the one agent who does appear to have commercial sales was disciplined by the Association of Authors' Representatives for breaching its Canon [sic] of Ethics and is no longer a member.

For the moment, we'll leave aside the outright lies elsewhere on the site. (Outright lies riddled with grammatical and spelling errors—from a group of literary agents—but never mind the irony.) It's rather interesting that the purported "publishing myths" have nothing to do with publishing, but everything to do with the member agents' own business practices.

And, ironically enough, the server for the IILAA is located in San Angelo, Texas, along with that successor-to-the-convicted-felons agency. However, ownership is hidden behind GoDaddy's reprehensible Domains by Proxy service, so I can't confirm whether it's the successor who owns the domain and hosts the site… or her former employers.

Update note: Clarification due to name mismatch on sales.

Caffeination Required

This morning, I'll start with a few miscellaneous items, and then—when the double-Sumatran-mocha's caffeine hits my bloodstream—discuss a significant ruling from the European courts.

• The Pittsburgh Post-Gazette trots out the old chestnut about how interpretation of classical works—specifically citing Beethoven's Fifth Symphony—results in different works and impressions of the composition. It's a roasted chestnut, actually, because a musical score is more a recipe than a recitation. Just as one gets a different impression of roasted chestnuts depending upon how long they're roasted, in what kind of oven, etc., one gets a different impression of a symphony depending upon its preparation. That is as it should be; it is not an exception. Except, perhaps, in the minds of journalists who only communicate with the written word. (And badly at that.)
• Then there's the usual whine that newspapers aren't printing enough coverage of books. The problem with this argument is twofold: It assumes (1) that people seeking information on recently published books turn to newspapers for that information, and (2) that people then act on that information. Since neither is true, it shouldn't surprise anyone that newspapers are finding it unprofitable to act as if they are true together. That leaves aside the concerted refusal of most newspaper-based book reviews to actually evaluate books. One simply doesn't find a "zero to four/five star" system parallel to film (and some TV and recorded music) reviews; instead, one must wade through overwritten prose in an attempt to discern whether the reviewer is actually recommending purchase of the book, let alone how strongly. In short, even if people were looking to newspapers to make actual book-purchasing decisions, the information provided by the newspapers wouldn't help much.
• Surprise, surprise. Thomson may be seeking to sell off Thomson Learning (the educational division). If nothing else, this demonstrates that there is no "publishing industry" per se, but only an accretion of niche publishing ecologies. Thomson appears to have discovered that the highly regulated educational market is not a good fit with its other publishing activities (including the 500-lb gorilla of legal publishing). That this was a predictable result does not diminish the antitrust implications of the original acquisitions that created Thomson Learning. Ultimately, this is a tortoise-and-hare problem. The education niche in publishing is very much the tortoise: It's never going to move very fast, but it will move steadily. The problem is that venture capitalists want to catch hares, then eat profit from them, while discarding the slower tortoises scooped up along with those hares. Unfortunately, unrealistic expectations have never stopped anyone from making unwise and/or inappropriate investments...
• Last in the short takes, retailers now deny that HarperCollins (UK)'s distribution woes will harm holiday-season sales. Yeah, I'm convinced. Note that the only two "retailers" cited in the article are megachains, and draw your own conclusions.

And now, the significant bit. Earlier today, the European Court of Justice held that Spain (in No. C–36/05) and Italy (in No. C–198/05—sorry, so far available only in Italian and French) violated Articles 1 and 5 of Council Directive 92/100/EEC (19 Nov 1992) by exempting almost all establishments engaged in the "public lending of works"—that is, libraries—from the requirement to compensate authors for rental and lending rights. This will have huge implications for both authors and libraries.

On the one hand, I have some sympathy for libraries. (Actually, I have a great deal of sympathy for libraries, just a little bit less than usual on this issue.) This will essentially require setting aside a portion of already-inadequate budgets to both compensate authors and administer the compensation. Unfortunately, it's extremely difficult to get increased funding for libraries, just as it is extremely difficult to get increased funding for anything else in the arts. There is virtually no possibility that funding for libraries will be increased enough (at least in the long run) to compensate authors without requiring service or other cuts in the libraries. That's a bad thing for authors.

On the other hand, the lending/rental right in the European Union represents a sub rosa recognition that authors don't get adequate compensation from the publishing industry.

27. Exempting almost all, if not all, categories of establishments which engage in such lending from the obligation laid down in Article 5(1) of the Directive would deprive authors of remuneration allowing them to recoup their investments, with inevitable repercussions for the creation of new works (see Metronome Musik, paragraph 24, and Commission v Portugal, paragraph 25). In those circumstances, a transposition of the Directive that results, in practice, in such an exemption for almost all, if not all, categories of establishments goes against the main objective of that directive.

28. However, in that regard the Kingdom of Spain maintains that the cultural promotion objective takes precedence over guaranteeing that authors receive appropriate income. The freedom conferred on Member States by the Directive thus enables them to allow authors only very limited, symbolic remuneration, or even none. Furthermore, the 2002 report on the public lending right bears out that interpretation.

29. It is true that cultural promotion is an objective in the general interest which allows the exemption, under Article 5(3) of the Directive, of certain public lending establishments from the obligation to pay remuneration. However, the protection of rightholders in order to ensure that they receive appropriate income is also a specific objective of the Directive, as the seventh recital in the preamble clearly states. It was precisely to preserve that remuneration right that the Community legislature sought to limit the scope of the exemption by requiring that national authorities exempt only certain categories of establishments from that obligation.

(EC v. Spain) It's far from clear exactly what the rationale was for the 1992 directive, but its effect is to protect authors (at least a little bit) from having their popular works priced out of the marketplace for individual purchasers. Saying that the publishing establishment's pricing policies—here or overseas—are completely irrational gives them too much credit. Even the automobile industry does better! The directive also helps protect authors from premature diminishment or ending of print life... at least a little bit.

Move Along, Citizens

Nothing really to see here. Just a few miscellaneous items:

• Over the weekend, the NYT ran a sadly amusing essay on film authorship. The real problem is that egos, money, and copyright law each come to a different conclusion. A film includes critical expression and decisionmaking that is (with very rare exceptions) sufficiently original to be expressive from at least the screenwriter, the director, the actor(s), the provider(s) of soundtrack beyond the actors' voices, and the film editor. Of course, copyright law deals with this rather inelegantly through the WFH doctrine, which even makes the (often capable of standing alone) score part of the "film"'s copyright claim. There's never anything elegant about egos and money.
• Then there's this completely wrongheaded criticism of the University of Minnesota's purchase of poet Robert Bly's papers. On the one hand, I do have some sympathy for "Kevin-M"'s position; the University of Minnesota is, after all, a public institution, and he's a Minnesota resident. On the other hand, he's also guilty of both ascribing absolute priority to his own taste and an insidious bigotry. "Kevin-M" needs to remember that Sturgeon's Law ("... but then, 90% of everything is crap/dreck/worthless") applies to "serious" writing, too... and that Sturgeon was an optimist.

  I can sympathize with the assertion that the University of Minnesota overpaid for Bly's papers a lot more than I can with "Kevin-M"'s position that no American writer of serious literature merits paying anything for his/her papers. Off the top of my head, I can name at least a couple of dozen current authors whose papers are worth archiving at a university library.

• Last, and far from least, we have yet more fallout from the Reagan Revolution in antitrust law—that is to say its demise. An article in the LA Times laments the demise of Tower Records while makings some unintentionally hilarious misstatements. To begin with, the author doesn't understand bankruptcy law:

  Two weeks ago, Tower was auctioned off for $134.3 million to a liquidator, which is a tragedy for music and particularly for classical music. The gallingly named Great American Group will go down in infamy. It beat out Trans World Entertainment by $500,000. Trans World promised to keep many of the Tower stores open. Now all the stores will close in a few weeks, after the stock is sold off at discount. "Sometimes the highest bid is not the best bid," the attorney representing Towers' creditors argued unsuccessfully before the bankruptcy court. Instead, the court ruled that one measly increment in the bidding (less than half of 1% of the total) must be valued above the good of culture and society, to say nothing of music.

  Mark Swed, "For Audio Lovers, Yet Another Blow" (22 Oct 2006) (fake paragraphing removed for clarity). This passage simply does not accept that the Bankruptcy Trustee's role is to distribute the bankruptcy estate in the way that maximizes its value. Swed's key assumption is that Trans World Entertainment's bid had a reasonable probability of having greater value to the creditors (by continuing to operate) than did Great American Group's. Ironically enough, the rest of the article demonstrates why that is so unlikely.

  Swed does make the interesting observation that

  Once Apple marketed its cute players as objects of lust, the CDs became prehistoric media. Downloaded music isn't inherently bad. But in its quest to rule the world, or at least become another Microsoft-ish monopoly, Apple can be. Like Amazon, iTunes serves as a useful adjunct to retail CD stores. But with its insufficient catalog and its pop orientation, Apple's download service is a long way from being able to replace them.

  Id. (fake paragraphing removed for clarity). Of course, some of this is simple arrogance in the classical music community. Classical music has never done well at building the "next generation" (or even the current one!), preferring to let parents do that. It would rather have David Helfgott than Alexander DeLarge. (There's an argument to be made somewhere that the classical music hierarchy willingly draws new listeners only from performers, but that's for another time.) Another part of the picture is the historical refusal by the major classical labels to discount their recordings, regardless of format; yet another part is the poor standard of recording technique, combined with trying to project a "concert hall" sound into the small spaces in which most listeners will be.

  In any event, although I also regret the demise of Tower's classical-music sections, Tower hasn't had any real value to me for a quarter of a century: I haven't lived within 50 miles of an otherwise accessible non-mall Tower since 1980. And the mall outlets didn't carry classical music beyond the obligatory two dozen warhorses.

Even More Annoyances

A few more, from my never-ending supply:

• Reporters who insist on pontificating on The Way Things Are without any knowledge thereof, especially regarding the financial status of various elements of the entertainment industry. The WSJ is the latest to fall into this trap; fortunately, you don't have to take just my word for the reporter's ineptitude. Then there's further followup by Real Publishing Industry Insiders.
• Suburban uhhhhsault vehicles (SUVs). Need I say more?
• Urban/suburban planners who persist in marking the parking lots for subcompact and compact cars in the face of the prevalence of minivans, pickups, and those SUVs from the previous item in large parking lots. Unfortunately, I can't exactly tell Mallwort, Targét, Pierre Menard's, and the like to fix the vehicle-door-dings in my own car (which is a compact).
• Creditors (like utilities, phone companies, and the like) who send you those little windowed return envelopes with the window placed so that one of the USPS's standard portrait stamps (such as the Thurgood Marshall issue of a couple of years ago) overlaps the window... and then take two extra days to process your payment if you put it in a different envelope.
• Magazines that hide the date or volume/issue information a variable number of pages inside, instead of putting it on the cover away from where the address gets printed. Since that's the part of the cover most likely to get munged during delivery, one would think that identifying information would be placed away from it...
• Stubborn, old-school publishers, editors, agents, and authors who insist loudly that only Courier 12-point can ever appear anywhere in a book-length manuscript. And that a manuscript must use underlines instead of italics. (The less said about those who advocate for Times New Roman, the better. If only HP had chosen Century as the default proportionally spaced font in those early LaserJets...)

Obviously, some of these annoyances are more petty than others.

Filling the Holes in My Head

My sinus cavities, that is. Between that and sudden breakdown of matters for two clients caused by third parties, I'm a bit too busy to blawg much at the moment. So I'll just leave you with these miscellaneous thoughts:

• A recent article in the Chicago Tribune fits in nicely with my recent musings on the efficiency of business models in the distributed-entertainment industry. The money quote:

  More than 80 percent of the music that is released in America is made by independent artists who don't sell big enough numbers to attract major-label interest. Yet a handful of corporations continue to haul in the bulk of the shrinking industry's revenue. That's because they concentrate their marketing efforts on a few dozen mega-selling artists, while more than 90 percent of the artists who record for a major label never see a penny in royalties. That business model looks particularly rickety in the Internet era.

  A playing field once heavily tilted in favor of the major labels is now leveling off. The main incentives for artists to sign with a big label were to gain radio airplay and shelf space at retail stores, propositions that required lots of revenue. The Internet obliterates the need for both.

  Greg Kot, "In This Digital Music Age, the Listener Is King" (15 Oct 2006)

• Julie Bosman ponders the annual fall rush for name authors in the NYT, remarking that

  Publishers and retailers are hoping for an industrywide lift during this high season, when holiday gift giving pushes up bookstore traffic. It may also be a respite for booksellers, who have been grumbling for several years about sluggish sales and a dearth of dependable blockbuster fiction. "This is one of the best fall seasons for fiction that we've seen in a long, long time," said Stan Hynds, a book buyer at Northshire Bookstore, an independent bookseller in Manchester Center, Vt. "The category has been hurting for a few years because political books have been so dominant, so it's nice that it's going to bounce back this season." The lineup of writers this season includes many who have large and loyal fan bases, the kind of customers who will buy anything a favorite author writes. One of those authors, Mr. Albom, has a new book, For One More Day, to yank at his readers' heartstrings; it has sold roughly 319,000 copies, according to BookScan. The much-anticipated Thirteen Moons, Mr. Frazier's follow-up to his hit novel, Cold Mountain, has been closely watched since its debut on Oct. 3. So far, 74,000 copies have been sold, according to BookScan, a sizable number for a literary novel, but hardly Albom territory.

  "A Crowded Autumn Book Season Presents a Pileup of Name Authors" (19 Oct 2006) (typography and fake paragraphing corrected; emphasis added). As every bookseller and publishing-industry figure knows, though, there is almost nothing less dependable than a blockbuster.

• Armand Iannucci ponders the contrast between news and comedy in the Grauniad.

  It's what I suspect most of us who work in the creative arts occasionally feel: that what we're doing is interesting, it's fun, it's probably the only thing we can imagine ourselves doing. But is it a proper job? Is there a point to what anyone in the arts is doing? It's only recently that I've come to find out that it does - that spending one's life just imagining things, making things up, performs a crucial role today. It matters because it's an act of imagination, and imagination is one of the things that defines us as human beings rather than monkeys. It's an act of imagination that is just as valid, just as crucial, I think, as any serious competitor, like a drama or the novel. But I think we sometimes see comedy as an inferior art form.

  "Comedy to the Rescue" (19 Oct 2006). Unfortunately, Mr Iannucci missed the boat. The "modern" journalistic method makes the journalists, hosts, presenters, interviewers, etc. come across as if they're somewhere between "I have no opinion on this" and "I don't care about this, it's just a job." Comedy doesn't work if it's not presented with some passion, some point of view. (Neither does right-wing talk radio.)

  Or one could just sarcastically note that the writing is so much better on The Daily Show and Not the Nine o'Clock News than it is on their mainstream competitors that even those who don't know that they're looking for good writing flock to the comedic news sources. Perhaps we should assign Orwell's essay "Politics and the English Language" more often...

Tasini Moves North

The Supreme Court of Canada has, in a 5–4 decision, essentially adopted the rationale of New York Times v. Tasini, 533 U.S. 483 (2001) (PDF), in holding that newspapers (and, presumably, other periodicals and publications) do not have an inherent right to reproduce freelancers' works in online databases. That is, instead, a right that must be transferred by contract.

41.  We again agree with the Publishers that their right to reproduce a substantial part of the newspaper includes the right to reproduce the newspaper without advertisements, graphs and charts, or in a different layout and using different fonts. But it does not follow that the articles of the newspaper can be decontextualized to the point that they are no longer presented in a manner that maintains their intimate connection with the rest of that newspaper. In Info Globe Online and CPI.Q, articles from a given daily edition of the Globe are stored and presented in a database together with thousands of other articles from different periodicals and different dates. And, these databases are expanding and changing daily as more and more articles are added. These products are more akin to databases of individual articles rather than reproductions of the Globe. Thus, in our view, the originality of the freelance articles is reproduced; the originality of the newspapers is not.

42.  The Publishers argue that the connection with the original newspaper is not lost in the databases because the articles in Info Globe Online and CPI.Q contain references to the newspaper they were published in, the date they were published and the page number where the article appeared. We do not share this view. Rather, we agree with the United States Supreme Court's finding in Tasini where the same argument was canvassed and rejected.

Robertson et al. v. Thomson Corp., 2006 SCC 43 (PDF).

Of course, all this means is that the Globe and Mail (and every other Canadian periodical) can follow the example of the NYT (and its affiliates): For every future freelance contract, the freelancer must agree to transfer electronic database rights to the publisher for no fee—with no negotiation—retroactively for everything that freelancer has ever placed in that periodical. This is the famous ability to contract around statutory requirements so beloved of strong-contract theorists. Somehow, though, the practical reasons that individuals agree to adhesive terms never seems to get much consideration when defending those contracts.

Footprints

It appears that I've left some footprints behind me. Not enough, however.

YouTube was recently sued for copyright infringement, on the ground that it hosted the notorious video depicting the beating of Reginald Denny in Los Angeles after the (almost incomprehensible) verdict in the state-court case against Rodney King's attackers. YouTube recently answered the complaint. A large part of its defense depends upon the DMCA safe harbors.

In one sense, I think YouTube took the right lesson from Ellison v. AOL, Inc., 357 F.3d 1072 (9th Cir. 2004). Paragraph 38 of YouTube's answer notes that:

Further, YouTube has a registered DMCA agent and provides numerous links on its site to the agent so that allegedly infringing materials can be reported. YouTube also has implemented a policy under which it terminates the user accounts of repeat infringers.

This doesn't quite aver everything that is necessary to avoid the problem AOL had created for itself. Our appeal turned on an inaccurate designation of the registered DMCA agent. Although it is certainly implied, this paragraph does not explicitly state that a report sent to the address(es) found through the Copyright Office's registry of DMCA agents would reach the DMCA agent. It comes close, though.

Where YouTube's answer falls down, though, is in paragraph 41. It's a simple rhetorical slip. Unfortunately, it's the simple rhetorical slip that news services have picked up. The answer properly notes at the beginning of the paragraph that § 512(c) "limits liability". However, a few lines into the paragraph, the answer incorrectly claims that "Under § 512(c), a service provider is immune from liability for copyright infringement allegedly committed by its users where [sic] it meets the following three requirements" (emphasis added). Curiously, the answer then proceeds to quote the three conditions precedent, but does not quote the language immediately preceding those conditions.

A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider—

17 U.S.C. § 512(c)(1). Nope. It's not immunity; it's a limitation of liability. Of course, had § 512 been properly structured, this would have been clearer. As its stands, the statute really makes sense if, and only if, one starts at subsection (n) and works backward. All of the conditions, implementation requirements, definitions, and limitations appear at the end, and they are all necessary to understand what is going on in the five possible safe harbors.

It's rather ironic, in a way; good programming practice recommends putting the longest, most involuted parts of a branching pathway at the end, not the beginning, and requires one to declare constants and variables before using them. So, for that matter, does good writing. On the other hand, why am I expecting good writing in a statute?

UK Libel Reform?

I have not yet been able to confirm the substance of an article in today's Times reporting that the Law Lords have provided for a public interest defense in libel suits.

The British media won the freedom to publish allegations about public figures free from the threat of libel laws in a landmark House of Lords ruling today. In a ground-breaking unanimous judgment, the law lords ruled in favour of a public interest defence that brings English law more into line with the freedom enjoyed by the US media. In future, journalists will be free to publish material if they act responsibly and in the public interest and they will not be at risk of libel damages even if relevant allegations later prove to be untrue. The law lords, Britain's top judges, said that the media was entitled to publish defamatory allegations as part of its duty of neutral reporting of news, or if it believed them to be of substance and they raised matters of public interest.

Francis, Gibbs, "Landmark Ruling Heralds US-Style Libel Laws in Britain" (fake paragraphing removed for clarity).

Presuming that this description of the opinion is correct—and I have not yet obtained a copy of it—it is a huge step toward correcting some serious problems with UK law. However, the description leaves open a disquieting loophole: Who qualifies as "the British media" and/or "journalists"? Specifically, would this sort of protection extend to authors of books who are not professional "journalists" as one might ordinarily use that term?

Nonetheless, I congratulate the Law Lords for recognizing that things have changed substantially since the seventeenth century, and that seventeenth-century approaches to the law occasionally need to be revisited and rejected.

Update: The opinion in Jameel v. Wall Street Journal Europe SPRL can be found at 2006 UKHL 44 (11 Oct 2006). Although the opinion at first glance is not quite as sweeping as the Times article implies, it is still a good step toward reform. Now, if the UK would just go toward "claimant must prove falsity" instead of "publisher must prove truth"...

Package Deals

Many publishers and other content providers seem to believe that the piracy problem results from the public's lack of respect for copyright. Although that is certainly an element of the problem, I'd like to point out a much more serious failure—and it's the industry's fault, not the consumers.' It's very simple: An unconscionably high proportion of the end-user's cost of obtaining copyrighted material goes toward packaging.

Perhaps the case-bound novel presents the best example. Consider the novel priced at $26.95. In that instance, the author is effectively earning from $2.50 to $3 per copy sold in royalties, once one allows for the typical 25% reserve against returns (that, somehow, never seems to be released back to the author, even decades later). For a 10,000-copy print run of a 480-page mid-length novel, however, the publisher is paying around $3.35 per copy, plus shipping, to get the "package" into inventory. Admittedly, economies of scale will drop that by around $1 per book, and perhaps a bit more for truly huge print runs—but getting the printing cost for a book of that size under $2 per book requires both a huge print run and cutting corners on quality. Exhibit A: Harry Potter and the Goblet of Fire's first US edition tended to fall apart after two or three readings, because it was nothing more than 88lb boards slapped onto an exceptionally cheap trade-paperback binding rated for not more than 500 pages.

Unfortunately, things are not getting better for books with e-books. The real problem is that it's impossible to get a truly economical e-book reader. One can get a pretty good MP3 player for under $30 these days; Sony's just-announced e-book reader lists for $350. And then there's the bulk issue. And the battery issue. And... well, I don't think I need to go on. Thus, for the foreseeable future, the "package" for text in the mass market is going to remain bound to paper.

This leads back to the packaging problem. Not content with an expensive package for the words, publishers tend to gild the lily... or, at least, the cover. For whatever reason, the publishing industry still subscribes to "bright and shiny is good": One purported mark that a publisher is seriously supporting a book in the marketplace is use of metallic-foil inks on the dust jacket. Then there's the issue of embossed type on the cover for something that most people store edge-on on bookshelves. These two changes alone can add $0.40 to the per-copy cost of a book, and even at extraordinary print runs that figure doesn't go below $0.30.

Of course, part of the problem is that publishers don't actually sell to the end users. They "sell" to distributors, who in turn "sell" to bookstores.¹ And the buyers at distributors and bookstores are, with only the rare exception of niche bookstores, not in the target audience for the content. Thus, we've got two independent, overlapping marketing efforts going on:

• Publisher to middleman, who is impressed by the packaging and a few glowing reviews and blurbs, and
• Middleman to consumer, who is impressed by the content and word of mouth, and perhaps longer reviews

Does this sound like an efficient business model to you? It doesn't to me.

But how does it relate to copyright piracy? The historical way to beat piracy has been to provide substantial, real added value to the protectable content at what the consumer perceives as a minimal markup over the consumer's valuation of the content. In the publishing industry (and, for that matter, the audio and audiovisual industries, although to a slightly different extent), however, more money and effort has been sunk into the packaging than into the product. Pricing at iTunes and other online music stores is rather revealing: At least a third of the typical retail price of a full-length CD (ten to twelve songs, for the sake of comparison) has been chopped right off the top by not moving pieces in a package... and that's oligopoly pricing for pieces much smaller than the ordinary sales unit.

The publishing industry must face an even harsher reality. Music and film have a much broader market than books. That is, a much higher proportion of the total market for books is inside the top ten percent of purchasers than for recorded music or for film. That argues that content quality has a greater impact on books than on music and film (although in comparing the crap one finds at the local big-box bookstore to the crap that one finds at the local big-box media store doesn't really reveal that!). I won't pretend to have a complete, package-deal-like solution to this conundrum. However, eventually electronic and other nonpackage media will claim a more than trivial portion of the book market, even if the hardware ain't there yet. The publishing industry's recent trends toward ever more costly packaging, though, indicate that that change will be an even greater challenge for the publishing industry's practices than digital music has been for the music industry and digital video is starting to be for the film industry.

To slightly paraphrase a public figure: It's the content, stupid!

---

1. Those quotation marks aren't just sarcasm. Because books are fully returnable for full credit—by both distributors and bookstores—those particular transactions are not "sales." They are "consignments." Fortunately for the industry, the courts haven't quite caught up with this particular dodge... and neither has the tax system.

They Made a List...

...and counted it 0.38 times. Then they drew conclusions.

Robert McCrum and his literati-colleague/acquaintances at the Grauniad demonstrated that whatever the center-right literati affiliated with the Times (either one) can fuck up, they can fuck up too. And then draw equally invalid conclusions from their mistakes. Today's Guardian/Observer includes the results of a poll of "150 literary luminaries" asking them to name "the best novel (in English, excluding America) for the years 1980–2005," allowing that "how you define 'best' is up to you." I find it hard to think of a more-useless exercise in name-dropping.

To begin with, how can one possibly expect to get a coherent list by asking for the "best" without any guidance whatsoever? Looking at the list of "winners" and "other nominees", one finds some truly peculiar entries that were almost certainly encouraged by that (absence of) basis. For example, someone nominated Harry Potter and the Half-Blood Prince; to anyone who has actually read the Harry Potter books with any critical acumen, if one volume (and only one) was to be nominated one would expect it to be Harry Potter and the Prisoner of Azkaban (which can, with some difficulty, stand alone... while HBP cannot). Many of the nominees are thought by even the ardent advocates of those authors to be among the weaker books by that author; nominations for The Handmaid's Tale¹ in place of the vastly more-accomplished The Blind Assassin, or two different novels by Angela Carter instead of her masterful collections of short fiction, or Earthly Powers over virtually any of Burgess's other "eligible" novels (not to mention that Earthly Powers falls outside the period, because it was first published in 1979!), or anything at all by "John le Carré," reflect a certain mob mentality and absence of awareness in the survey population.

But that's not as much fun to criticize as is the very survey method itself. After all, a substantial part of the flaw in asking for a single "best" work from voluntary responses can be statistically ameliorated by asking for multiple nominations of three or five best, whether or not ranked within that group. Instead, one must ask why this particular population of literati has any more credibility than does any random sampling of citizens. The key question is this: Just how widely read are these literati? For example, only four of them write speculative fiction, one of whom writes "childrens' books," while two others have archly abandoned speculative fiction; a disturbingly high proportion of the "panel" consists of novelists first published after 1998; several of the "panelists" are essentially celebrity-authors who have written highly popular utter crap; and so on.

And people wonder why the publishing industry is so screwed up.

---

1. Which, I suppose, brings up another interesting point: Even though some of these works are not "by" Americans, several of them are about "America," such as The Handmaid's Tale itself. That is very troublesome in a xenophobia-inspired survey like this one.

On Voting and Candidacies

07 November of this year will involve every American citizen's second-most-important duty: Voting.¹ Those who have the right to vote and choose not to do so undermine the very concept of democracy; one can hardly complain that one's views aren't represented in the government if one doesn't participate in the selection process! Low voter turnout also results in improper claims of a "mandate" and the rush toward the center.

If you cannot find an acceptable candidate in a given race—or even every race—just write in a more-acceptable candidate. Including yourself, if necessary; or, if you're near or in Chicago, the Hon. Richard J. Daley. But no matter who you vote for, vote.

---

1. The most important duty is jury service; only after voting do we get to anything else.

Who Gets Copyright

Two stories in newspapers halfway around the world from each other illuminate the stickiest part of the copyright conundrum: Who gets protection, and who benefits? Both stories also include an undercurrent of schadenfreude uncommon in high-end MSM pieces.

Ignoring the irony inherent in the source for the moment—don't worry, we'll return to it!—a story in today's NYT practically begs for sad violins in the background as it describes the sad, sad plight of the individuals whose stories led to A Chorus Line. That particular play (which, although immensely profitable over the years, deserves at most "It is very good of its kind") is about to be revived. Again. The apparent problem is this: The 20 dancers who contributed to several taping sessions, later distilled and transmogrified to the skeleton of the play, sold their rights for $1. And now the survivors are a bit upset that they're not continuing to share in the play's financial success.

This particular controversy arises from the interplay of copyright law and New York state law. Under New York state law, there is no formal "right of publicity" as exists in most of the rest of the country; one must try to cram a publicity-like theory into another tort. The more-interesting aspect, though, concerns who would have been entitled to copyright in the first place. Under US copyright law, the person who fixes the material has the copyright (and it gets even more convoluted when one remembers that it wasn't quite the same under the 1909 Act… and these interviews took place in 1974). That is, copyright in a live performance belongs to the recorder, not to the performer. As counterintuitive as this sounds, though, it runs right into New York law on performers' rights—law implicated in the notorious Naxos decision that essentially extends permanent copyright-like protection to recordings under New York state law.

Returning to the irony—you don't really expect me to ignore any available irony, do you?—consider the source in which this article appeared. Not only was the NYT the named main defendant-malefactor in Tasini, but the NYT's policy since then has been positively rapacious. Contributors to the NYT are now expected to sign away their copyrights not just in the work being presented, but in all past works published by any unit of the New York Times Company, too. Throw in a few outrageously expansive interpretations of work for hire at the paper (and various units of the company, such as the Boston Globe), compare it to the "poor underprotected dancer" tone of the article, and we've got six times the US RDA of irony from a single article consumed with my morning caffeine!

Halfway around the world, the Japan Times tells of efforts to extend the copyright term in Japan. Japan largely adheres to a "life plus 50" copyright term, with a couple of twists: Corporate works are flat-50, while certain non-Japanese-origin works that were exploited in Japan between 1938 and 1951 get the benefit of longer terms under the Treaty of San Francisco, because during that time Japan denied foreign works copyright protection. (As usual, it's actually much more complicated than that.) One segment of the article is particularly illuminating:

Novelist Masahiro Mita, vice president of the Japan Writers Association, said behind the request is an increase in life expectancy and the idea that families depend on the money they get from copyrights even after the artists have died. "Especially in Japan, there are many 'I' novels, and authors have made subject matter of their family's private business," he said, indicating it is natural for relatives to receive royalties for a long time. At the Daiso-Sangyo Co. 100 yen shops, copies of famous novels by Osamu Dazai (1909-1948) and Natsume Soseki (1867-1916) are lined up. The company has published 30 of their works, with notes and commentaries. They are sold at 100 yen apiece because their copyrights have expired, but Mita said, "I suppose their families cannot endure that."

Aya Tamura, "Novelists, Others Want Copyright Protection Extended" (30 Sep. 2006) (fake paragraphing removed for clarity). This presents a fascinating resonance with the NYT article in today's paper. It also illuminates one of the economic paradoxes in copyright law: the balance among uncertainty, unexpected returns, and the translation problem. That, however, is for another time and another few hundred footnotes.