The Rule of Law

In a not entirely unexpected development, the International Court of Justice has ruled that the US violated the Vienna Convention in fifty death-penalty cases involving Mexican nationals (note: this is the ICJ's page on the whole case, which consists of several levels of links to PDF files). What this reflects more than anything else is true stupidity.

The point of any criminal justice system must be to obtain a just result. If the procedural rules designed to ensure justice are "inconvenient" to a local or state official's political ambitions to be "tough on crime," so be it; that's the price of the system. Further, given the huge delays that everybody already knows exist in the capital punishment system, there is no justice-based motivation to attempt to evade those rules and just add more possibilities for delay. Of course, that's not how all too many prosecutors see it: They see the system as one intended to result in convictions, not in justice, and resent anything that gets in their way.

The corollary is a simple one. Prosecutors who do not follow Vienna Convention requirements—they really aren't that hard, and require only some really routine cross-checking—must not have much confidence in their cases or their skills. If they did, they wouldn't mind touching second base. Cutting straight from first to third, though, is right out.

Frege (Again)

In honor of one of the most reflexive definitions in philosophy, today's class will try to determine the number of things in the class "copyrighted materials" by comparing it to the class of all classes similar to the class of copyrighted materials. Which, I'm afraid, is just as ultimately revealing as the so-called "orphan works lawsuit" (Kahle v. Ashcroft). I'm afraid that the plaintiff archives have made the serious error of reasoning from particular problems to general solutions, without consideration of the unique characteristics of other members of the class affected by that general solution.

The lawsuit asserts that "copyright restrictions on orphaned works—works whose copyright has not expired but which are no longer available—violate[] the [C]onstitution." This sounds a bit bizarre to start with; but an extended quotation from a press release demonstrates the real problem:

"Orphaned films are trapped in legal limbo, where they may disintegrate before anyone gets a chance to see them again," said Rick Prelinger, president of Prelinger Archives. "Automatic copyright extension that nobody asked for prevents archives and collectors from showing them or putting them online for everyone to use. Film is fragile and often doesn't last as long as a 95-year copyright term. Let's find a way to get these abandoned works into the hands of educators, students, filmmakers, and the public."

"Libraries traditionally have made out-of-print books available to the public. Now, students and others look online for works and are denied access to out-of-print materials because the laws have not been updated to enable them to be posted on the Internet. If we want to continue to have libraries serve the vital function they always have, we have to find ways to allow them to post orphaned works online," said Brewster Kahle, chairman of the Internet Archive. "The Internet Archive would love to be able to scan in all orphan books so that people everywhere can access and read them. But under current law, it is too expensive, and sometimes impossible to find their authors and clear their rights-even when we know that for most of these books, the author would gladly agree to our posting them."

Taking these problems one at a time:

• The concern about the loss of older films is a legitimate one. However, the proposed remedy goes far, far beyond simple preservation. Preservation requires only the making of an archival-quality copy; it does not require distribution of the material, for fee or for free, over the Internet. Further, note that well over 99% of the works in question are works for hire, not the work of individual creators. In other words, the actual creators probably benefit only minimally, if at all, from further exploitation of the work.
• The concern about the loss of older textual works is much, much harder to fathom. There are probably a few works that remain in copyright at this time that need preservation because the only available originals were printed on high-acid paper. However, not only does this ignore the archive/distribution distinction, but it puts a non-copyright rationale for unavailability—that it would not be economical to bring the works back into print, because the cost of the distribution system makes it unbusinesslike—into play as the unstated, but real, rationale for changing the rules on copyright.

We'll leave aside the "corporate v. actual author" ownership of copyright for the moment; even though that is the real cause of the controversy (as I've noted previously, almost all of the citeable instances of "abuse" of a copyright to inhibit further creativity involve works whose copyright is not controlled by the natural person(s) who created them), the apparent problem is that Kahle et al. don't want to pay for individual copies. By no means am I defending the pricing practices of the publishing and entertainment industries; I am merely noting that the lawsuit essentially seeks to swap one extreme for the other, without ever asking if there is a systemic, non-copyright problem that needs attention either prior to or simultaneously with "reforming" copyright.

Let's look for a moment at a few alternatives to allowing free copying and distribution of "orphaned" materials. Certainly, there is a significant effort ongoing now—not sufficient, but significant—to preserve "classic" films with deteriorating prints and negatives. The only apparent justification for the archives' position is that they can only afford to engage in a similar effort for works not yet recognized as "classic" if they are allowed to distribute the results of their efforts, without regard to the existing rights of copyright holders. One can only wonder whether the copyright holders might actually grant permission for a preservation effort, because on the face of the lawsuit there appears to have been little attempt to obtain such permission. There is certainly something to be said for wanting to retain for one's own use a copy of that preserved record that one created; but that's not at all the same thing as making it freely available to others.

At the other extreme, I have yet to see a realistic consideration of the economic realities and motivations of the publishing industry in any of these types of criticisms. This cuts both ways, of course; one can argue that private, profit-motivated publishing inhibits the development of the public domain. (That this argument is foreclosed by the language of the IP Clause doesn't seem to bother these critics: The Constitution justifies the limited monopoly right it empowers Congress to grant with the precatory "To promote Progress" language that implies that profit from exploiting that monopoly is sufficient motivation to create more works than might be created without such a monopoly.) What the various "archival" arguments boil down to is that the publishing industry doesn't properly select works that have such importance that they must be continuously available to the public. The nicest thing that I can say about this argument is that it ignores the most critical factor in the catalog life of a book: That the author does not have the ability to keep the work in print. The entry costs to individual authors have historically been too high, and remain too high; and free copies do have some effect—impossible to calculate, but anecdotal evidence indicates that for works that are not otherwise "bestsellers" it is a negative effect—on the author's ability to realize continued income from the work during the "monopoly period."

In other words, this really isn't about the content of the public domain at all. It's about money. And, as such, a "solution" that ignores economic causes of the particular distribution of distributions is at best disingenuous. It attempts to impose values that might be applicable to a relatively small subclass of works on the entire class of works at issue. That this mode of reasoning also seems to underly a lot of bigotry and prejudice does not make me any more comfortable with either the reasoning or the result. I am not saying that those who advocate broader use of copyright materials are Klansmen—only that the method of reasoning used is uncomfortably similar, and for that reason alone bears very careful scrutiny on its real, and not its asserted, bases.

Just Ducky

Since virtually everyone else in the blawgosphere has weighed in, I suppose I should too. Despite my personal preferences—the last thing that anyone needs in interpreting grey areas in FOIA is an avowed formalist, regardless of political inclinations!—I do not think Justice Scalia is obligated to recuse himself. Far from it; as his order points out at excessive length with excessive pedantry, and as Professor Ron Rotunda points out much more cogently in the Washington Times (difficult as that may be to believe, given the usual turgidity one finds there) (N.B. Professor Rotunda was as close to a "mentor" as I had in law school), neither the text of the statute nor applicable precedent requires Justice Scalia to recuse himself. It is a decision within Justice Scalia's discretion.

That said, I believe that it is appropriate for Justice Scalia to recuse himself. I advocate the military officer's rule (an appearance of a conflict of interest must be treated as one absent either compelling immediate circumstances or a disinterested determination that there is no actual conflict) for all lawyers, let alone for judges. Were I in Justice Scalia's position, I would recuse myself. But I am not. Justice Scalia no doubt has more personal knowledge of the situation than any outsider does, and I suspect that he consulted others whose judgment he trusts—probably informally, and not necessarily lawyers—before making his final decision. So long as his belief that he can be impartial is honest—which I am not questioning—and he has actually thought through the issues, we must be satisfied with the result. <SARCASM> In any event, I would probably regret not getting to read the vitriol of whatever opinion Scalia writes in this matter if he did recuse himself. </SARCASM>

Here's someone who understands what "protect the Constitution against all enemies, foreign and domestic" means. And he's a Marine, no less.

Joe Friday Wasn't Here

One of the more difficult issues in journalism and publishing—not to mention defamation law—revolves around the distinction between "fact" and "opinion." At the extremes, they're pretty clear: "Bill Clinton had at least one extramarital affair" is not in the same class as "Bill Clinton is a wonk". In the middle, though, particularly on issues of interpretation (such as those inherent in political debate), the distinction is unclear to start with, and usually made even more difficult by rhetoric that skirts the edge of intellectual dishonesty.

Although it doesn't go nearly far enough in its actual implementation of a realistic process, the New York Times at least acknowledges the issue—but not the cause. In an article today, the "Public Editor" (would be called "Ombudsman" if the job title was supposed to communicate responsibility and role, but that clearly is not a priority) discusses the NYT policy on corrections on the Op-Ed page. It's an interesting explanation, as far as it goes; but it doesn't go nearly far enough, because it doesn't discuss prevention—or retribution.

It's more than just a question of legal liability, or of abstract intellectual honesty. An effective program to prevent misstatements of fact in the context of stating opinions is also a critical component of credibility, even if it is not specifically identified as such. Exhibit A: The raging controversy over Van Dyke's deceptive—even mendacious—"book note", which has probably resulted in serious harm to the credibility of not just the Harvard Law Review, but of student contributions to law reviews across the country. Mr. Okrent describes the NYT's attitude on columnists' histories of distortion as "subject only to the limits of legality, decency and publisher Arthur O. Sulzberger Jr.'s patience" at the time he began in the position, without much indication of change in the policy.

So, then, how does the NYT handle a columnist with a history of verified factual misstatements? Is there a "one strike" rule (one mistake is allowable, but the second results in removal)? Is it possible that the NYT would remove a columnist who persistently makes factual misstatements in support of opinions (leaving aside whether that has actually happened)? Without a standard, or even apparent consideration of this specifically, I am left with the disquieting conclusion that nobody really cares, so long as Mr. Sulzberger's patience has not yet been exhausted. Given the opacity of the process, the likely delays, and everything else that contributes to this situation, I can only conclude that the NYT's correction policy is designed to deflect criticism, not to deal with the underlying problem—or at least that such is its effect.

My patience would have been exhausted quite some time ago by more than a dozen very prominent Op-Ed columnists, several of whom appear regularly on the NYT's Op-Ed pages. Without naming names, there is one somewhat extreme social conservative—by no means the most extreme—who has (by my count) made seventeen verifiable factual misstatements in the last couple of years, most of which would have severely undercut the opinions if corrected (or, better yet, not made in the first place). I don't mean misstatements based upon political interpretation, either. I mean misstatements like continuing to attribute a view to a public figure three years after said figure publicly repudiated the view; like continuing to quote discredited statistics no longer cited by the original proponents; like using only a politically motivated English-language translation of material from a philosophical work—based upon an incomplete text of that work—in the course of attacking the original author's integrity. This is not unique to social conservatism by any means; but the holier-than-thou attitude so often associated with this particular columnist (and I mean more than just a purely religious "holy") becomes merely hypocrisy in this context. And the less said about Rush Limbaugh and his "research" the better.

I am not proposing a numerical standard for dumping columnists; sometimes—although not in the case of the columnist described in the previous paragraph—an opinion based upon inaccurate assertions of fact has value in advancing public debate, if only because the inaccurate assertion of fact is plausible enough that it must be considered as a possibility. I do think, however, that the "exhaustion of patience" standard tries my patience far too much. I am also concerned that the NYT has not, until now, seen fit to even acknowledge that a policy for correction of factual errors by Op-Ed columnists even exists; but then, that would be a truly liberal (in the European sense) thing to do, so I'm not all that surprised. "Liberal media" my ass.

Clarification, 1400/28 Mar: My remark concerning the harm to credibility of student-contributed materials in law reviews reflects what I believe will actually happen, not what should happen. Professor Leiter is correct; a single instance, or even a single journal, should not result in lower credibility being attached to student work (if that is possible!). The irony that the "fellow traveller" approach is a dominant mode of what passes for argumentation in contemporary Op-Ed columns is not lost upon me; I doubt that it is lost upon Professor Leiter; but I suspect that it is lost upon Van Dyke, the current HLR board, and Messrs. Okrent and Sulzberger.

It's Raining [on the] Frogs

The Perfesser has a "no comment necessary" link on frog-bashing this morning. Far be it from me to object—my surname is courtesy of Ellis Island, not an indication of my ancestry.

In any event, if anything the article understates the problems with the French approach to foreign affairs and the Arab/Muslim world. Ordinarily, one need only say "Algeria" and be done with it. What I find more annoying, though, is the continued assumption that France has a right to dictate policy to other nations, on the ground that during the 17th and 18th centuries diplomats adopted French as the language of diplomacy. For example, not too long ago France threatened to veto any candidate for Secretary-General of the UN who did not speak French. We ended up with an unmitigated disaster. Of course, recognizing irony is not a strength of the French government, and hasn't been since the days of Petain. This is a nation that is so culturally imperialistic that dictionaries must have quasigovernmental approval to ensure that they are not allowing foreign words to encroach on French, but doesn't see anything wrong with French-oriented patois in Africa stemming from France's history of colonization there.

More to the point, they eat snails swimming in so much butter and garlic that one might question whether anyone can tell what they really taste like. But the pretensions of French cookery are for another time.

On the Other Hand…

The Perfesser wonders what might happen to Mr. Newdow's daughter if she becomes known as "the kid who took God out of the Pledge." It's a perfectly reasonable question, because the "singling out" does indeed work both ways. The Perfesser cites William Murray, the child of atheist Madeleine Murray O'Hair, as an example of "inverting" the parent's intended result. Perhaps; but then again, one might go on to become mayor of the town that was so grievously harmed by removal of religion from school funding. The Perfesser might well remember this one: the individual in question is Daniel McCollum, who served as mayor of Champaign, Illinois for several terms after having been the "affected child" in the linked case.

The real problem is that, while these incidents are certainly significant in shaping the adult from the child, the resulting shape depends upon so many other factors that I think the Perfesser's concern is vastly overstated. It seems to me more important that the parent ensures that the child understands that the parent is looking out for what he or she believes is the child's best interests (McCollum), not using the child to make a point (Murray O'Hair). I think that the Court reached the right legal result in both cases; I also think that family function, and sometimes dysfunction, greatly overshadows anything that might have "resulted from" the litigation, even assuming that one can show causation. After all, I think it highly likely that, even if Murray O'Hair had lost, she would have continued with similar courses of conduct, possibly resulting in the shunning that supposedly resulted from the lawsuit.

Clarification, 2200/24 Mar: My point is not a lack of sympathy for the Newdow girl. It is only that parent who treat their children like tools for litigation tend to treat them like tools in other contexts, resulting in a screwed-up kid either way.

Snooze

This is not an excessively exciting day in the news. In fact, it hasn't been a very exciting week.

• Dept. of Good Riddance Jack Valenti, the myopic head of the MPAA, is making even firmer noises about retirement. From everything that I've seen, it can't come too soon. The MPAA has had an opportunity to be proactive on so many things, but has instead chosen to be an ostrich. This ranges from industry accounting practices to piracy to shareholder rights to… never mind.
• First Barbie, now GI Joe. Leaving aside the dubious artistic merit—more years ago than I care to admit to, a university classmate tried to do something similar, and it was truly awful—one must question whether it's the dolls/action figures themselves, or the marketing machinery, or the people who purchase them, that are the target of these sorts of parodies. Only the first of the three targets could even conceivably support a trademark or copyright infringement action. Ralph Nader's recent lawsuit demonstrates the futility of the second theory, and the advertiser would have no standing to contest the third.
• Poor computer security design and implementation doesn't cause loss of privacy. Overenthustiastic teenagers cause loss of privacy. Just ask Kevin Mitnick.
• In a development that should not surprise even a tadpole, a British publisher has cancelled a book detailing the purported (I have to say "purported" because I do not have first-hand knowledge or supporting documentation) links between the Bush family and the House of Saud. It should not surprise anyone that the publisher in question is a division of Random House UK, which is in turn a subsidiary of Bertelsmann, the closely held German media conglomerate that has its own historical skeletons no longer in the closet and greatly desires even less vigorous antitrust enforcement.
• Disney's latest example of sheer stupidity involves its "feature film" The Alamo. Assume for the moment that the Alamo had been settlers in the Western US holding out against an onslaught of angry Native Americans. Could (or should) that film be made? And, if not, why does perpetuating racist revisionist history that targets an even larger ethnic group (Mexicans) as the "bad guys" in even more dubious circumstances (there wasn't even a US government decree allowing the Texians to claim territory within the US) fare any better, from either an ethics/intellectual honesty or artistic point of view?

Publishing? Reality? Sarcasm? You can get them places other than here, although in very few places other than here can you get them all at once, all the time. Although I can't speak for the "all the time," John Scalzi offers a few pithy comments on the realities of the publishing industry.

For those of us who've been the law-school route, it might remind you of the bizarre clerkship decisions made by judges: The middle-of-the-class famous college athlete who got a Court of Appeals clerkship, and the law review editors who couldn't even get interviews. (I was neither—soccer players weren't famous in the 1970s and 1980s, especially in Division III; and I did have interviews… but that's a very, very long story indeed.) In other words, there's a more-than-sneaking suspicion that "pure merit"—whatever that might be, given the subjective nature of "merit" in letters and the arts—has not all that much to do with publishing success. Of course, that begs the question of what does. It sure as hell isn't publishers' marketing efforts, at least not once gets outside of niche markets!

It was rather interesting watching Mr. Clarke's presentation on Sixty Minutes yesterday. At least he had the guts to admit, on camera, that a more-than-trivial part of the blame for 9/11 goes on his shoulders. (That's something I don't ever expect to see an SES-level civil servant or political appointee do—it's just not in their nature. That's why Janet Reno's assumption of responsibility for Waco stood out so much.) Regardless of his personal blameworthiness goes, though, what he really pointed out is that communications in the Administration, and probably not just this one, depend as much on whether the message that is to be passed on fits the preconceived notions of what the President's handlers think will be an acceptable conversation.

This is not unique to George III; or to Republican administrations; or to the US; or to democratic republics. It is a natural, and perhaps unavoidable, result of the desire to accrete and maintain political power in what is perceived as a zero-sum game. Whether Mr. Clarke was or was not correct, it was the duty of George III's handlers to let the actual policymaker(s) make that determination, not to censor it because it might be "unpopular." They clearly failed, whoever they actually are. One is reminded, in a rather sick sort of way, of the machinations in a typical episode of Yes, Minister: because although, as one bumper sticker I've seen recently puts it, "Regime Change Begins at Home—Replace Cheney & Rove," I have little confidence that things will be that much better under Kerry, if only because of the personality flaws inherent in the toadies who attach themselves to Presidential candidates. Remember Griffin Bell? How about Ed Meese? How about John Mitchell? And that's just the Attorney General, who as a lawyer is supposed to be an advocate by training…

Enough reality for this morning. Neeeeed coooofffffeeeeeee.

A couple of opinions of note—

In re Sunterra Corp. (4th Cir. Mar. 18, 2004) is a bankruptcy case with some interesting implications for authors—especially because it creates a clear circuit split with the First Circuit. A software company had retained its copyright in programs and granted Sunterra a nonexclusive license to use the software. Sunterra declared bankruptcy under Chapter 11 (reorganization of a business). The software company claimed that the software license was an executory contract, which could not be assumed (that is, continued) by the reorganized company with the consent of the other party. Of course, the software company had no intention of consenting (or there would be no dispute!). The Fourth Circuit held that 11 U.S.C. § 365(c), in combination with provisions of the Copyright Act, gave the software company the right to consent (or not) to assumption of the license agreement. Contra Institut Pasteur v. Cambridge Biotech Corp., 104 F.3d 489, 493 (1st Cir. 1997). In this day and age of publishers going bankrupt—remember Carol Publishing and Dove Audio?—this creates some interesting questions and possibilities for manipulating the bankruptcy proceedings, especially since the bankruptcy court in Delaware appears to have sided with the First Circuit.

Murray Hill Publ'ns, Inc. v. 20th Century Fox Film Corp. (6th Cir. Mar. 19, 2004) is a copyright infringement action that clarifies the distinction between "prior conception" and the final work, when prior conception constitutes only part of the final work. Murray Hill accused Fox of infringing on its script "Could This Be Christmas" with the (truly wretched) film Jingle All the Way. As the facts played out, though, Fox demonstrated that substantial parts of the film as actually produced were conceived and scripted before it received the script from Murray Hill. The Sixth Circuit held that these circumstances require a two-step analysis. First, the previously-conceived elements (and the corresponding elements in the allegedly infringed work) must be filtered out, just as would be nonprotectable elements. Second, the remaining potentially-infringed elements are analyzed for substantial similarity. In this case, the court found that "no reasonable jury could have found substantial similarity solely on the basis of the six minor elements not so filtered."

Target Selection

Teresa Nielsen Hayden, a senior editor at Tor books, described some really abominable behavior last night that demonstrates ignorance about the publishing industry and publishing process. Of course, the industry has gone out of its way to ensure that reality remains a secret—try deciphering a royalty statement sometime, not just for accuracy, but to see if it even complies with the contract!—so this shouldn't be entirely surprising. That's no excuse for this level of ignorance, though.

Editors are busy people. They would probably love to keep their slush piles down to, say, a two-week reply time. As painful as reading slush is, it's at worst comparable to YAMM (Yet Another Marketing Meeting). The realities of the modern publishing process, though, mean that most successful editors simply don't have enough time to subject themselves to slush—especially since most editors can't make the decision to acquire by themselves, but must convince at least two or three other people that the book is worth publishing and fits the publisher's plans. Since too many publishers don't really have a discernable, internally consistent plan, the latter can be a real bear.

In turn, this means that editors don't have the time for nonsense. Ms. Nielsen Hayden takes a lot more time for nonsense than do most editors (how many other editors at commercial publishers have their own websites that do anything other than discuss their cats?). Sometimes that nonsense gets a result that others might object to. <SARCASM> Of course, no author even engages in similar behavior. </SARCASM> Attacking the editor in question is not a way to either get ahead in the publishing world or even change behavior; so don't bother. Ms. Nielsen Hayden's correspondent would have been much better advised to work on his (I assume his) own material—whether that's writing fiction or whatever—than worry about one editor's opinion of an author whom she does not publish.

Those of us who lived through the 1980s remember Dress for Success all too well. (I almost always wore a dark-blue suit in those days. With four buttons and a whole lot of salad over the left breast, and lapel pins on both sides, and epaulets with shiny things on them, and… but I digress. Like that's a surprise.) Manuscript submission is the ultimate extrapolation of "dressing for success"—but, unlike the world of job interviews and salesmanship, there is almost no opportunity to overcome an unfavorable first impression. Sometimes that first impression can come from the signature block on the cover letter; and don't think that editors don't talk to each other about difficult-to-work-with authors. I know of one absolutely brilliant—not just my opinion, folks, but that of his/her professional society—scholar who writes wonderfully well, even in early drafts, but probably will never again get a contract from a major commercial publisher because he/she is impossible to work with, both in personality and in substance. That author's signature on a cover letter for an unsolicited manuscript (in the particular field in question, probably half the manuscripts published are unagented) is a near-kiss-of-death experience.

Publishers publish books. Editors work with authors and want to publish books. There is a difference; and failing to recognize and understand that difference makes an already-difficult buyer's market that much more difficult.