Transformation

One of the most difficult issues in fair use, particularly of visual works, is the question of "transformation." On the one hand, the more transformative a reuse is, the more original it is, and the less likely it is to replace the source work in the market. On the other hand, the more transformative a reuse is, the more derivatives from the source material's copyright owner will be crowded out of the market.

Perhaps a few examples will be helpful. Please put down your coffee (or other tasty beverage), swallow that microwaved burrito, and take a look at these gorgeous transformations. Let's assume that the process involves a photographic morph from two copyrighted images, and that the morph-artist has not obtained (or even requested) permission or a license to do so. Where does that leave the copyright holder, the morph-artist, and the public? And, just to make things fun, notice that each transformation in the set consists mostly of one picture, with features from another one morphed in (with a very high degree of skill). Are the answers any different if there's a permission/license problem with only one of the source photos? Does it matter which one?

The tangled answer to this question is one of the reasons that I think transformation has little value in actually evaluating whether a specific use is a fair one. It is instead a frequently misapplied bit of rhetoric used as a post hoc rationalization for reuse, and does not actually provide us with part of a principled, replicable framework for evaluating fair use. This is not just because transformation is not one of the statutory factors under § 107, but because the degree of transformation is a purely subjective test in the eye of the beholder. In short, it's the Jacobellis test for obscenity applied almost directly to copyright infringement—and, considering the mess in First Amendment law that descends from Jacobellis and similar decisions that "obscenity" is not "speech" for First Amendment purposes, that's not a result we should attempt to reach.

Caffeine Needed

By me. Probably by you. And definitely by the authors of the following tidbits. Fortunately, my substitute for Bob Newhart has more than three hours' air in his capsule.

• Hollywood's obsession with money—ok, it's not an entirely unreasonable concern for a profit-making enterprise, but the focus is on receipts and not on profits—comes through in a variety of amusing (and often incomprehensible to rational folk) ways. For example, today's NYT includes a story on the absence of a guarantee of profit through big stars. Then there's the question of whether anyone really cares anyway, or if this is just a "bragging rights' sort of thing.
• Speaking of box office, there's a fascinating "stock exchange" game where the public can trade "futures" on the box-office potential of films in production at Hollywood Stock Exchange. Several sources I've consulted offline indicate that HSX is at least as accurate as the "trades" (Variety and Hollywood Reporter) in its predictions, and that errors at HSX tend to be the magnitude of a flop or unexpected breakaway—not in the direction, as is so often the case in the trades.
• Of course, this focus on gross receipts runs throughout the entertainment "industry." Saturday's Times (London) includes a short "prediction" of the fall box-offices winners for books in the UK. Only two of the ten authors are not at least "B-list" equivalent.
• This all has to do with the industry's perceptions and egos—that is, the corporate megaliths (and even not so megaliths) of the industry, not the actual creators of entertainment content. For them, it's a lot dicier, and perhaps nowhere more obviously than in the music segment of the industry (sorry, registration with the Chicago Tribune required). <SOAPBOX> I know of no other segment of the entertainment industry that so routinely and automatically abuses the participants, for less actual benefit to the participants, than the recorded music segment. The contracts are uniformly abusive and uniformly breached by the distributors. Then there's the recent attempt to make phonorecordings works for hire… </SOAPBOX>

Award News

The World Science Fiction Convention (running through the end of "today"—ordinarily, about 0400 tomorrow—in Los Angeles) has announced various award winners. Congratulations to all of the nominees, more congratulations to the winners, and still more congratulations to my clients among the nominees and winners. In the order ordinarily listed:

• Hugo Awards
• Best Novel: Robert Charles Wilson, Spin
• Best Novella (17,500-40,000 words): Connie Willis, ":Inside Job" (Asimov's, Jan 2005)
• Best Novellette (7,500-17,500 words): Peter S. Beagle, "Two Hearts" (F&SF, Oct–Nov 2005)
• Best Short Story (< 7,500 words): David D. Levine, "Tk'Tk'Tk" (Asimov's, Mar 2005)
• Best Related Book: Kate Wilhelm, Storyteller: Writing Lessons and More from 27 Years of the Clarion Writers' Workshop
• Long-form Dramatic Presentation: Serenity
• Short-form Dramatic Presentation: "The Empty Child"/"The Doctor Dances", Doctor Who
• Professional Editor: David Hartwell (Tor)
• Professional Artist: Donato Giancola
• Semiprozine: Locus
• Fanzine: Plokta
• Fan Writer: David Langford (editor of the fanzine Ansible)
• Fan Artist: Frank Wu
• Not Hugo Awards, but also presented at the LACon IV Hugo Awards Ceremony
• John W. Campbell Award for Best New Writer: John Scalzi
• Special Committee Awards: Betty Ballantine and Harlan Ellison
• Seiun Award for Best Novel in Japanese Translation: Greg Egan, Diaspora (UK English-language edition; no US edition available)
• Seiun Award for Best Shorter Work in Japanese Translation: Ken MacLeod, "The Human Front"

The Hugo Awards are speculative fiction's equivalent of cinema's Academy Awards; this set concerns works first published in calendar year 2005. They are nominated and voted upon by members of the World Science Fiction Convention. Unfortunately, voting is far from universal, and all too often driven by fan politics (just as are the Oscars). That doesn't make them meaningless—winning a Hugo is a big deal—but neither are the Hugos an infallible guide to the best of speculative fiction from the preceding calendar year.

One can find some truly deserving absences from the nominees. For example, a certain egotistical producer's final bit of trash in his series didn't make the final ballot… unlike each preceding entry in the series. Although it's hard to tell for certain, it appears to have been knocked off the ballot by a claymation dog. Similarly, I'm only too pleased to note the absence of certain other egos from the ballot. How ironic that this is probably the least-ego-drenched Hugo ballot of the century thus far… and it took place in Los Angeles, the only city in this nation with egos to rival those inside the Beltway.

Still No Structure Here

Still more miscellaneous observations—

• Startlingly, there's an article of some value on the irrationality of the publishing industry in Poets' & Writers' Magazine.¹ Of course, it isn't exactly news, either; an author's exploitability via public appearances has been a critical factor in acquisition of self-help books for quite some time.
• Amusingly, this blawg has been cited in a law review article. Once one gets past the initial surprise, the particular point was not surprising: My reminders that publishers don't universally control all of the rights demanded by Amazon's Search Inside the Book program. The article itself appears in the Stanford Technology Law Review (PDF); I found out about it via 3L Epiphany's useful Law Review Articles Citing Legal Blogs (includes link to actual list). What I find interesting about the particular citation is that I pulled my punches in the cited blawg entry. It's not just that publisher's sometimes don't have the necessary rights; it's that they usually don't have the necessary rights, and that those publishers/distributors with little claim on those rights have tended to be more aggressive in asserting that claim, both in October 2003 and today.
• Ridiculous. Sublime. And maybe just plain weird. Stephen Colbert first took on absolutely nothing on his green screen; now he takes on the "Star Wars kid," bears, and other "space monsters." Unfortunately, someone has hacked the purported "official" site to collect all of these videos in one place; the best place to begin seems to be giving the "Star Wars kid" what he so richly deserves.
• Denise Howell's new blawg Lawgarithms looks promising, and would be more so without all of ZDNet's annoying Flash-animated ads.
• Phil Carter's group blawg Intel Dump has hosted several thoughtful posts on Middle East strategy of late, including good cop/non cop, Cassandra's self-examination, and an interesting take on (not) amending the War Crimes Act.
• Last, and not least, there's the entire Watada screwup. It's screwed up all around. To begin with, Watada is himself guilty of at least two UCMJ offenses (Article 92, failure to obey an order, and Article 133, conduct unbecoming an officer) for failing to deploy to Iraq when ordered to do so. Here's the problem: A deployment order is not, and cannot by itself, be unlawful when it is offered in support of the ill-considered—but still lawful—Authorization for Use of Military Force. That said, the military grievously overreacted by making this a court-martial situation. The Seattle Times seems to have the firmest grasp of the situation, which shouldn't be all that surprising as Watada was stationed less than 60km from Seattle. I have a great deal of sympathy for the politics informing Lt Watada's decision, but much less so for the decision itself. Officers don't refuse deployment orders. They may refuse orders to go destroy a complex of villages thought to harbor insurgents… but there is nothing inherently unlawful in a deployment of this nature.

  This reminds me of the ultimate problem with too many Fourth Amendment cases. As Professor Lafave remarked on the first day of Criminal Procedure, one needs to remember that the vast majority of cases involving the Fourth Amendment concern substantively guilty defendants. Sometimes the prosecution is selective; more rarely, they are not substantively guilty; but that makes things much more difficult litigation-wise. Imagine for a moment that Dolly Mapp's crime had been not possession of obscene material, but possession of a large arsenal of automatic weapons and explosives, combined with membership in a militia group. Is it just barely possible that the Supreme Court would have been more reluctant to extend the Fourth Amendment to the states on those facts?

  Besides which, there are a lot of other things that an officer—and particularly a junior officer—can and should do to resist unlawfulness in Iraq that one cannot do from inside the brig.

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1. It's startling because the magazine is typically over half filled with ads, and almost all of the articles are either "inspire the writer" or "this is how semicelebrity author x works" in nature. That this is akin to feeding the bears at a park should be pretty obvious.

Unnews Good News?

The "news" over the last couple of days has been full of unnews—stories that seem late-breaking only to people who haven't been paying attention, often for years.

• On 17 August, Barry Turner complained in The Times that more books are being published yet new authors are being left out in the cold. Leaving aside that the phenomenon of commercial publishers preferring to contract sight-unseen celebrity crap over slightly offbeat material from previously unknown authors goes back to before Mr Turner began the first edition of his Writer's Handbook, nobody who knows anything about the publishing business should be surprised. I suppose that the only real consolation is that sometimes the celebrity has the last laugh (Collins won). Some day, the publishing industry is going to wake up to the concept of "sunk costs" and how they relate to the timing of both costs and income. It won't be any time soon… but it will be amusing.
• At Inside Higher Education, an article explores the shocking phenomenon of the demand for PhD programs that do not assume that the students are 20ish kids with no real experience attending school on daddy's dime. Even more shocking, that some institutions actually admit that they can't support some worthwhile PhD programs without collaborating with a "rival" institution. I don't think this is going to be invading law teaching any time soon, though.
• And, as usual, an "arts magazine" manages to completely screw up its descriptions and concepts of copyright law, which get even further skewed by the headline-writer. This time, it's the notoriously squirrelly LA Weekly, which sips deeply of the "information-wants-to-be-free" Kool-aid:

  These parallel dogmas — free speech and intellectual-property rights — through corporate intervention and governmental abdication, are now on a collision course, and may in fact collide next month with the theatrical release of Kirby Dick?s incendiary This Film Is Not Yet Rated. A jihad against the Motion Picture Association of America, movie studios and the corporations that own them, Dick?s documentary plans to get around the prohibitive costs of copyright licensing by employing a "fair use" defense — a safeguard built into the Constitution but largely untested in the courts. Like the last time a foreign body slammed into the earth?s surface, disrupting gravitational orthodoxy, watch for sea changes, atmospheric gloom and toppling dinosaurs.

  (startlingly, no need to correct typography or paragraphing) Let's see how many misrepresentations we can find in that passage without trying, ok?

  • Free speech and IP are not parallel by any stretch of either semantics or imagination. In fact, they are normal to each other… in the mathematical sense.
  • Free speech and IP have been "on a collision course" for several centuries.
  • A film is not, and cannot be, a "jihad." And no filmmaker in Hollywood can even declare jihad.
  • Fair use is not a "safeguard." Neither is it "largely untested in the courts."
  • Since "fair use" originated as a judge-made doctrine and has since (under the 1976 Copyright Act, 17 U.S.C. § 107) been codified, saying it is "built into the Constitution" is a bit disingenuous.

  I don't think I really need to parse the last sentence, do I?

  What I find saddest is that the subject matter of the article deserves a much-more-searching examination—even in that forum—than it got. For example, there should have been some consideration to the distinction between "ordinary" works and works for hire… and the cultural (and economic) chasm between the two in permissions. But who cares, in the end, when one can end with the non sequitur contrast of William Morris and Rupert Murdoch?

• In a truly unstartling development, the First Circuit issued another copyright-based opinion that ignored both the statutory text and administrative gloss on a relatively new type of copyright protection, let alone the development of the area in other circuits. Professor Patry elucidates, and provides more grist—perhaps unintentionally—for the "put all IP Clause litigation in one (the Federal) circuit" mill. I say this based more on the idea of "be consistent" (an achievable goal) than "get it right" (an unachievable goal, given that IP law is as subject to doctrine and fashion as any other area of law—and probably more than most). On the other hand, moving the First Circuit's copyright cases to virtually any other circuit will result in both more consistent and more "correct" opinions.
• Speaking of unnews, I will not be commenting upon Judge Taylor's decision on the wiretapping/interception programs. As much as I would like to comment, the subject falls well inside my NDA. For a good overview of what is at stake, I recommend looking through Professor Balkin's blawg. The perhaps-not-originally-intended irony of applying the term "Balkinization" to the intelligence/counterintelligence community is worth a visit all by itself.
• Last, and not least, Professor Solum presents the quasi-Swiftian story of "The Battle of the Theories " (perhaps better titled "A Full and True Account of the Battle Fought Last Semester Between the Rationalized and Psychoanalyzed Theories of Law in the Jenner Library"). I remain amused that anyone could believe that a single "unified behavioral/legal theory" could possibly exist, given that the vastly simpler behavior of particles with no volition of their own can't be explained with a unified theory. And what this says about originalism in legal interpretation… is far too complex for this blawg. Especially on a Monday morning.

I'm afraid that John Sutherland's article "Acts of Possession" on novels, author identity, and copyright, which appears in today's Guardian, reflects inadequate research on copyright doctrine and the novel. In no particular order, he makes the following :

• Mr Sutherland's characterization of the Suntrust case ('The Wind Done Gone') is completely inaccurate. He asserts that "The Wind Done Gone was duly injuncted, and the injunction lifted after the novel's publishers, Houghton Mifflin, made an out-of-court settlement with the Mitchell estate." This is flat wrong. The injunction was lifted on appeal by the 11th Circuit Court of Appeals.¹ It appears from the remainder of the docket that the district court judge, when the case was returned to him, acquiesced in the Court of Appeals' assertion that a fair use defense would probably prevail; a confidential settlement followed quickly. In fact, the result of the case was so preordained that the biggest controversy over it in the community of intellectual property lawyers was how the District Court judge screwed up so badly as to issue an injunction in the first place.
• Mr Sutherland's characterization of pseudonyms is curiously incomplete. His contemporary example (King/Bachman) is from American publishing, and leaves the grossly inaccurate impression that this is the typical "cause" of the decision to use a pseudonym. Far more commonly, one finds that a pseudonym is essentially imposed on an author as a reaction to poor sales of a previous book. This can be a "prudent" imposition by an author being realistic about the market (Megan Lindholm becoming Robin Hobb) or one forced by a publisher's fiat.² Then there is the whole question of pseudonyms required by category conventions, such as the feminine (or at best indeterminate) auctorial brand-names commonly adopted by male romance novelists. In sum, Mr Sutherland's use of Stephen King as an example was not just ill-advised—it was actively misleading.
• The Statute of Anne³ was far from the first copyright-like statute.⁴ What he means to say is that it is the first statute that, by default, vested the copyright in the author and not in the patron. With that correction, the remainder of his introduction makes sense, even if the rest of the article does not.

Overall, I found this article a disappointingly glib and poorly researched piece. Perhaps its greatest error is in failing to acknowledge the differences between US and European copyright systems. One of those differences—authors' moral rights, or droit d'auteur—is central to both ongoing struggles over identification of works and to the particular examples Mr Sutherland cited in his article.

---

1. Suntrust v. Houghton Mifflin, 252 F.3d 1165 (11th Cir. 2001).
2. I have two current clients in this predicament. In both instances, the clients have come to regret acceding to the publisher's demand, albeit for entirely different reasons. In any event, the Nora Roberts/J.D. Robb situation is a far better example for Mr Sutherland's purpose than was the one he chose; I suspect, though, that Ms Roberts' work simply isn't well-enough known in the UK for that point to have sunk in.
3. 8 Anne ch. 19 (1710). Although often cited to 1709, the Act was first introduced in Parliament in January, at a time when the year "began" on 25 March. Just as Washington's birthday was retroactively moved forward, so was the "correct" year citation to the Act.
4. See generally Elizabeth Armstrong, Before Copyright: The French Book-Privilege System 1498–1526 (1990); Christopher L.C.E. Witcombe, Copyright in the Renaissance: Prints and the Privilegio in Sixteenth-Century Venice and Rome (2004).

In Toto

To open on a lighter note—especially if, like me, you despise people who can count billions for defense, but not for the age of the planet—here's a truly disturbing realization of the main cathedral of the Church of the Flying Spagetti Monster. Parents, don't let your kids see the last page of the cathedral tour without close supervision! It's even more disturbing than this short movie (QuickTime, 4mb) about an already-declared candidate for President in 2008.

The real problem with the Inscrutable Design movement is that ultimately it is not about science at all; it is about social control. More specifically, it is about importing a particularly obnoxious variety of bigotry into the science curriculum. Let's stop and think for a moment about this in something other than a biology classroom for a moment. Imagine for a moment that the Paracelsus Institute insists on teaching the controversy about alchemy in basic chemistry. Under pressure, the Kansas School Board agrees to alter its standards to require students to simultaneously question the Dalton-Boyle-Bohr model that forms the core of basic high school chemistry and accept Trismegistus's view of matter. After all, we can't describe the fine structure of subatomic particles in infinite, provable detail; therefore, we must be open to alternative views, and more importantly we must teach our students to accept be open to those views. And alchemy is a particularly apt replacement for chemistry, because we can't actually observe (at least, not yet) the interactions that create "protons." Thus, the existence of protons is only a theory. (Insert your own <sarcasm> tags where you think them appropriate.)

The obvious problem with this analogy is that chemistry is a descriptive science in which any event that can/does happen at t=0 happens identically at t=4,000,000,000. On the other hand, biology—at least as it has come to be understood—has a historical component to it; a biological imperative at t=0 is substantially different from that same imperative at t=4,000,000,000. That's what "evolution" really is: an acknowledgement of historical change in biological function and structure. And what that says about the DI's understanding of history is more than faintly disturbing.

Insert Title Here

• The Sunday WaPo has an interesting article on the GooglePrint controversy. Unfortunately, it completely misses one of the critical points: It assumes that, necessarily, the publishers are the parties with the right to grant permission. Perhaps this is true in the newspaper world; it's not true in the book world. What part of New York Times, Inc. v. Tasini, 533·U.S.·483 (2001) did you not understand?
• Today's NYT has the usual misguided focus on finding new-author big hits. Leaving aside for the moment the silliness of asserting that this model is how every publisher does business—that's not even true across imprints at a couple of conglomerates!—the real problem is the focus on the tail. Some day the NYT is going to wake up and realize that new trade fiction is a quarter of the market (more or less) and start considering widespread practices in nonfiction as the default. Probably not in my lifetime, though.
• Say what you will about the purported biases of the NYT (I consider the paper to be a liberal-leaning moderate, not a "liberal icon," but that's for another time), but at least it allows internal critics to criticize editorial policy and forthrightness. The same cannot be said for the reflexive subject: George III's "enhanced" surveillance programs and their dubious legal grounding. Programs? At least they'd better be plural; some of the players are not authorized or organized to engage in domestic covert operations… or, under most circumstances, surveillance of "US persons".
• As further demonstration that a certain Chicago-based fast food giant doesn't think rationally and thinks it owns other peoples' names, consider the case of Malcolm McBratney. Fortunately, the Australian government saw through the burger-franchisor's bluster and granted Mr McBratney the right to use his own name to designate a rugby team, and to register "McBrat" for that purpose. This is one of the dumber aspects of the trademark "defend it or lose it" requirement… and it's up against some pretty stiff competition.
• Last for the moment, there was a non-news article in the Chicago Tribune last week: America's youth thinks it has limited copying rights to music. The very existence of Napster, KaZaa, LimeWire, Gnutella, etc. should have made this pretty obvious. At least this time there is a survey purportedly measuring just how pervasive that attitude is. Of course, that the poll was conducted by the LAT does not exactly help its credibility; I have some fundamental problems with that paper's statistical analysis and data gathering methods, at least as reflected in its various "surveys" and "polls" on intellectual property issues over the last decade. That, however, is for another time; and at least the LAT tried to do more than rely on anecdotal evidence… unlike certain entertainment industry trade groups that persist in blowing up anecdotal evidence to astoundingly high "loss estimates." That this strategy is counterproductive should be obvious to anyone with any working brain cells, because it destroys their individual and collective credibility when they do have something important to say.

Annoyances

What these annoyances—in life and at work—say about me is probably not very complimentary, but…

• If you're checking out at the grocery store—particularly in the express lane—please don't stand in front of your cart after you've unloaded. That goes double if you're writing a check, and quadruple (notice the geometric progression?) if you're also going to handwrite the entry into your checkbook. Unload your cart, move it in front of you, and push it ahead so the next person can get to the unloading belt before his ice cream melts.
• If the idiot who decided that default directories would be called "My ___" ever comes in range, he/she had better be wearing body armor. Leaving aside that this is just begging for an intruder to exploit it—instead, the setup routine should ask you to name the directory the program/OS "needs" to create—it inordinately screws up alphabetical or alphanumeric filing systems.
• Would someone please have the U.S. Courts of Appeals adopt a uniform numbering format for appellate cases, and uniform naming for decisions? And if someone would do that for the District Courts, too, that would be great. I don't care if the court wants to subcode its numbers, but it drives me nuts to search slip opinions with differing lengths and naming conventions. Something like "A090255797P.pdf" is a lot more informative than the nonsense actually in use (just try finding a filename from the Sixth Circuit if your search program expects to find the court designation at the beginning of the filename!).
• While we're talking legal citation, I'd like to smack the Bluebook editors in the head and tell them "Follow Supreme Court practice instead of trying to impose your own preferences, you morons!" Different typefaces don't bother me as much as the distinctions in parallel citation requirements. Of course, this isn't exactly a new peeve for me, is it?
• Carefully reconsider the number of handicapped parking places near institutions that cater primarily (or extensively) to children. For example, one nearby library has six handicapped spaces immediately outside the entrance to the children's department (or, at least, did until it started construction), which meant that families with small children had to cross a partially blind alley. I don't recall ever seeing more than three of those spots occupied at once.
• Local governments: If you're going to bitch or otherwise pitch a fit over "student drunkenness," you should reconsider your zoning and parking policies that mean that literally the only "entertainment" near the campus is a group of pretty slimy bars. You drove away the only movie theater in Campustown a decade ago; you've driven out two video arcades on that same block in the last decade, and replaced them with bars; you've cut parking by a third and tripled the parking meter rates, which require feeding up to 9pm; and you're still whingeing about drunken students and underage drinking in Campustown?

Something Fishy on the Bicycle

I suppose that some day I'll regret raising my kids to enjoy playing games with language. But not today.

Recent events have led to a few minor arguments around the house, mostly about whether the Jedi in this little exchange should be Darth Zizou or Obi Floyd Kelandis:

Referee Let me see your urine sample.
Jedi You don't need to see my urine sample.
Referee We don't need to see your urine sample.
Jedi These aren't the 'roids you're looking for.
Referee These aren't the 'roids we're looking for.

Not too bad for an unplanned bit of nonsense.

The real problem is that the purportedly positive test results for Floyd Landis simply make no sense. To begin with, which moron decided that taking a urine sample after a dehydrating event such as an uphill stage in the Tour de Drugs would give a meaningful result? Then there's the chicken-and-egg question: Is it just perhaps marginally possible that world-class athletes might have abnormally "enhanced" levels of performance-enhancing substances just through genetics? (After all, they were probably well above average athletically even without training.)

No Truth or Beauty, Either

Yet more miscellany. (Given the nonsense going on around here, it's hard to put together more than 200 words on a given topic.)

• First we thought the Chihuly suit had settled, at least in part; now, we see that it hasn't. I'd make more snide remarks about "people who run businesses making glass houses shouldn't throw stones," but that's just too obvious, even for me. Although I seldom miss the front end of a one-and-one on purpose, that's one I'll pass up.
• It looks like the sextennial "excessive returns" cycle is starting up again. This time, the first hints are in England; Waterstone's (the new monopolist owner of Ottakar's) is claiming that it needs to return and replace 30% of Ottakar's stock before Christmas so the stores can be better focussed on carrying what customers want to buy. Of course, this is also a chicken-and-egg situation. As a serious bookbuyer, I can't count the number of times I went into a bookstore, browsed, found something interesting, and was inspired to instead buy something else (related or otherwise). The less said about managerial attempts to make the former management look bad and itself look exceptionally capable, the better. (And no, I won't ask for a pardon for my cynicism; a trip to any Waterstone's, even the US-airport-stall version, should disabuse you of any notion that Waterstone's understands anything other than the book-as-a-commodity model.)

  And, of course, this is going to lead to lots of whingeing from publishers about returns, further attempts to increase the reserve against returns, lower royalty payments, and more accounting shenanigans. Just peachy. The UK seems to lead the US market by about two royalty cycles with this nonsense (or, at least, it has since the mid-1970s), which shouldn't really surprise anyone given the Briticized ownership of US publishers.

• With more than usual speed, the Observer notes an academically oriented conference devoted to Harry Potter. Of course, the article writer can't resist a few digs at fan fiction; neither can she resist taking a few digs at conference attendees, however "respectful" her article is supposed to be. (Aside: Don't claim to have been an "English student" on the basis of "not-read[ing] Milton and not-read[ing] Spenser"; maybe at some schools one can get away with "not-reading" in a literature class, but certainly not in any English department I've studied in.) The "more than usual speed" comes because this sort of thing has been going on since, at latest, 2003; three years isn't too bad, is it?

Up, Down, and Strange, but Charmless

… and definitely missing Truth and Beauty. My quairky sense of humor has dredged up more miscellany—as usual, in no particular order:

• Further proof that the s&m dorks in publishing really don't understand irony: "Publishers Try to Sell Words With Moving Pictures." Nor, apparently, the publishing contracts, because there is an excellent chance that the authors reserved the right to make derivative works like films. Except, perhaps when they're ghostwritten.
• On the other hand, there's also the relatively recent innovation of mob-rule focus groups for TV shows. Hopefully, they include commercials (mock or otherwise) in these showings, or they're unrealistically raising the mock audience's expectations. Or is that "mocked audience"? Now, if only someone would subject the seating in most movie theaters to the same treatment…
• As happens periodically, someone in England objects to the UK's horrific libel laws. At least, they're horrific compared to ours (which, in some ways, are simultaneously too restrictive and too lax, but that's a consequence of flaws in the common-law system and thus an argument for another time).
• Then, on the other hand, an article in The New Statesman remarks upon the paucity of politically oriented theater in New York. This is rather ironic coming from a UK-based publication, particularly in light of the preceding item.
• From the Seattle Times, news that the Chihuly lawsuit appears to have reached a (partial) settlement. This mess is a perfect example of some of the inherent wrongness in the WFH doctrine—and, since it appears that it's not a complete settlement, it's not yet cleaned up.
• Last, and far from least, there's this interesting item in the WaPo. Leaving aside the shirt-rending among various Internet and gambling constituencies, there's this little bomb dropped in at the end (fake paragraphing omitted for clarity):

  The WTO cannot force a country to do anything. Even if found guilty, a country can refuse to change its trade practices. The WTO largely enforces its rulings by giving the victorious country the right to impose punitive duties on the loser's products. That enforcement mechanism works for big, rich countries such as the United States because other nations fear losing the vast U.S. market. But Antigua's economy is so tiny that few U.S. companies would notice.… So the Antiguans plan to ask the WTO for the right to impose sanctions that would hurt — namely, permission to copy and export U.S.-made DVDs, CDs and similar material. Hollywood is not amused.

  Yeah, that's going to be really successful. Just what we need: Hollywood against the gambling industry in a race to see who can get a stealth amendment in its favor tacked on to some otherwise-unrelated legislation. I'm entirely unsure which is more corrupting… or itself corrupt.

  And, of course, we'd have to pretend that WIPO and the WTO play nicely together in the first place. But my imagination isn't quite that good this morning… particularly since this "proposal" would contravene the Berne Convention, which has been a source of irritation to some WTO constituencies for a while now.