A Savage Writer's Journal
The Suspense Is Terrific… I Hope It Lasts
As a confirmed liberalin the European sense I find both of the major-party candidates, and almost all of the minor-party candidates, much too far to the right for my preference, or even comfort. Regardless of their individual rhetoric, public posturing, and carefully developed images, both major-party candidates are rich white Preppies who are sons of rich white men who in turn earned their fortunes not with their own labor or intellects, but from the efforts of others. One's fortune comes from oil; the other's, politics. Neither option is particularly honorable, useful to society, or likely to prepare one to be an effective leader of the world's only remaining nuclear superpower.
Swallowing this bitter pill is made all the more difficult by the fact that the popular vote will not elect the President; instead, the President is actually elected by the Electoral College. This is even more insulated from a true majority than the pluralities formed from minimal voter turnout typical of American politics, for (with only two exceptions) our "first past the post" system applies equally to electing slates of Electoral College voters. This means that the candidate who receives the most votes in California earns all 51 of California's electoral votes. This creates the illusion of a clear winner in most Presidential elections (for example, Reagan received over 500 of the 538 electoral votes in 1984 with not much over 50% of the popular vote). Perhaps not this time.
The key state appears to be Florida. One would think that Dubya would be a clear winner there, as his brother is the relatively popular governor of that state. Gore, however, is making a surprisingly strong showing in Florida. This may make Tuesday, 7th November, rather more interestingand suspensefulthan ever seemed possible in high-school civics.
Writers should care about the outcome of this election. Not only will the next administration set the agenda for law on the Internet, through both its own direct efforts and its power to appoint the Commissioner of the Patent and Trademark Office, but the respective attitudes toward dissent and freedom of speech of the major party candidates are substantially different. However disturbing I find Tipper Gore's inability to understand that "make no law" means "make no law," the outright hostility to the First Amendment demonstrated by Cheney when he was Secretary of Defense; by daddy Bush as Director of the CIA, Vice President, and President; and by Dubya himself during his tenure as Governor of Texas, should send serious and thoughtful writers, and those who love good writing, in search of a competent elephant hunterregardless of their own political beliefs.
This contretemps makes me long for the chance to cast my ballot for Screaming Lord Sutch of the Loony Party.
I am not happy with my own fiction of late, either in substance or in quantity. Both have been lacking. My nonlegal nonfiction has been the both more productive and of better quality. Fortunately, it's the latter for which I am most likely to get paid.
Recently, there have been two hopeful developments for speculative fiction writers. The first, and most obvious, is another attempt to create a professional-standards fiction periodicalBlack Gate. The other is Gordon Van Gelder's purchase of The Magazine of Fantasy and Science Fiction. The latter is more likely to make a long-term difference for fiction writers than the former, but both are welcome initiatives.
05 November 2000
Cool Hand Luke
Quite possibly the best-conceived, if not necessarily best-written, episode of Star Trek: The Next Generation ("Darmok," episode 102 ) concerned communication with the Tamari (a somewhat unfortunate name, as it is one transliteration of a variety of soy sauce). The episode involved the Enterprise crew's desperate attempts to understand and communicate with a race whose language sounded like words, but was not. In Indo-European languages (such as English), the word is the basic unit of meaning. The Tamari, however, used allusions to mythological (and perhaps historical) events as their basic unit of meaning. "Darmok and Jalad at Tanagra" is not just a string of three proper nouns, but a reference to two isolated heroes who arrive at an island separately, fight a monster found there together, thereby form a bond of respect and companionship, and leave the island together.
Perhaps more lawyers need to see this episode, for the Tamarian language is exactly what we sound like to laymen. We communicate with each other by shorthand references to complex legal doctrines that are, without a fairly full explanation of context, misleading when reduced to a short summary. We even do it to ourselves, when discussing matters across practices. For example, other lawyers, and even other litigators, seldom understand what I mean when I allude to Surowitz, one of the paradigmatic cases in noncommercial complex litigation.
This is most dangerous when either the audience or the speaker is not a lawyer, but a politician, or businessperson (particularly one whose background is in marketing or accounting), or polisci/constitutional history type. The problem isn't that these people so seldom understand legal shorthand; it's that they so often think they do. This results in nonsense like pretending that the Militia Clause of the Second Amendment is a restriction on a fundamental right, instead of an enablement of a newly explicated civil liberty. This is far from the most serious misunderstanding of legal mythology common to contemporary political discourse.
Shaka, when the walls fell/Sokath, his eyes opened.
Or, alternately: Luke and the warden in the compound.
Get your asses out and vote Tuesday.
As I've mentioned before, I care more that you do vote than what your vote is.
07 November 2000
I will studiously ignore the election today. They're all lousy choices.
The Supreme Court granted certiorari in Tasini v. New York Times on Monday. Time for a short lesson in civil procedure. Just what the hell does that mean, and how did the case get there?
The Supreme Court, unlike other federal courts, can refuse to hear a case without giving a reason. With negligible exceptions, the Court takes only appellate cases. Around 6,000 requests to hear cases arrive at the Court each year. The Court typically must hear three to six of them as appeals "with jurisdiction noted." It accepts an increasingly smaller number of other cases, even though filings continue to increase. Last Term (October 1999September 2000), the Court only granted certiorari in around 70 cases.
But how does the Court decide to accept cases? What sets the lucky 1% apart?
Mechanically, a case is accepted for hearing after the Court considers a petition for certiorari and a response (plus briefs from amici curiae, who are supposed to bring other matters to the attention of the Court when the litigants will not "adequately represent all interested parties," but normally just attempt to reinforce one side or the other). The Court's internal procedures require four votes to hear a matter (although it has complete discretion to change the rules; some matters appear to require five votes). That is not to say that the four votes are preliminary votes to reverse; often, they are votes to resolve a circuit split or other matter that is so important it must have a single, national precedent.
This term offers an excellent example of a circuit split: the Casey Martin matter. The 9th Circuit decided that a physically disabled golfer was entitled to use a golf cart during competition; three days later, the 7th Circuit decided the oppositethus, a circuit split. The Court granted certiorari to resolve the split.
But Tasini does not represent a split. The only potential split currently at the appellate level is in the 11th Circuit, and creating a split would require the circuit to overturn some of its own precedent, which is unlikelyparticularly since the Circuit will now sit on its case until the Supreme Court rules in Tasini.
And so seven men and two women will decide whether splitting freelancers' work from its original context and placing it in a database is a new publication or merely a reissue. On that issue rides the life or death of Northern Lights, Nexis, and a number of other electronic database providers. Allegedly (as the economics are not nearly so dire as the services claim). Although I'm a big fan of searchable databases, I also believe that the Constitution's Copyright Clause means what it says:
Article I, § 8
<SARCASM> Of course, this is not an issue that authors need to worry much about any more. Contemporary publishing contracts are explicit about database rights; in fact, publishers usually take a "we get the database rights, and that's nonnegotiable" stance. So don't worry about it. </SARCASM>
Yeah, right. To be continued…
11 November 2000
At the Movies
11 November hasn't been as bad as usual. I only woke up sweating and ready to scream twice last night, and hopefully won't do any worse tonight. (Yes, that is a substantial improvement over what has been "normal" for the last decade or so.)
Sometimes I hate being right.
My remarkably sick mind came up with the following piece of nonsense. Your groanage may vary (and you should probably hope it does).
Two remaining observations:
Next time, I'll return to discussing the status of Tasini.
14 November 2000
Why should writers care about the result in Tasini? It's as much a matter of contract law as of copyright. Technology and usage will march on, and this situation will happen again. When most of the materials at issue in Tasini were published, virtually nobody had the thought of widespread electronic access, or exploitation of electronic rights. Thus, they were not discussed in publishing contracts.
So, the real meaning of Tasini does not really concern electronic rights, or at least not electronic rights per se. It's about allocation of rights in the face of silence in the contract. Yes, this battle has been fought before, over cinema adaptations, radio adaptations, and TV adaptations. That those rights are subject to negotiation at all is largely due to the estate of Edgar Rice Burroughs: Tarzan and John Carter of Mars are perhaps the most-litigated properties in copyright.
The two sides' positions are as follows:
On balance, what's the answer? In my not so humble opinion, it should come pretty close to the authors' position. Yes, there needs to be some flexibility in interpretation; for example, if a contract anticipates a particular use by saying "digital database rights," but the term of art later adopted is "electronic database rights," it seems clear that the parties meant to transfer (or, if in a disclaimer clause, not transfer) the right to full-text use of the material in machine-readable form. On the facts of Tasini, it's pretty clear that a right other than reissue was in question, because the material was not in fact reissued, but consolidated, indexed, and made available in a manner to allow retrieval of specific articles. I don't turn to the New York Times's op-ed page for a given date; I look for the author's name, or the title, or whatever else the search engine can use as a reference.
But this does require vigilence by authors. Read your contracts. Assume that the nice editor with whom you've developed a working relationship will be fired tomorrow when one of the media conglomerates takes over, or when there's a shakeup at the top if it's already part of a media conglomerate. If you don't understand a clause, go ahead and ask the editor… but remember that, even if the editor truly does want to be author-friendly, the editor is in all probability not a lawyer. If you still don't understand or you're not satisfied, get an attorney to look it over.
One last thought on this whole mess: by not creating a class action, the plaintiffs screwed a lot of other authors. The other authors whose works were initially placed in electronic databases between about 1987 and 1995 (filing of the suit) no longer have a legal remedy, as the three-year statute of limitations has run. One can argue that it's a continuing violation, or try to use the discovery rule, but the cause of action clearly accrued during the 198795 period. If, however, the case had been structured as a class action, the statute of limitations would have been suspended for all members of the potential class prior to judgment on the merits (or exclusion from the class by change in the class definition). Further, it's a lot easier to get attorney's fees in a class action than in a pure copyright matter. Most important, though, a class action creates some additional pressure to settle, even if only partially. The CARL UnCover suit is an excellent example. Yes, there are additional procedural hurdles, and sometimes class actions just make the defendants more obstinate; but, particularly in a case like this one with an easily defineable injury, uniform practice, and a large number of plaintiffs who have each suffered a relatively small legal injury, there's really no excuse. There are reasons, but they do not create an excuse. The plaintiffs and their attorneys are equally responsible. <Disclosure> I have a litigation history "across the v." with one of the plaintiffs' attorneys and her firm, and it's an extremely unpleasant history indeed. </Disclosure>
Just when I thought things were starting to stabilize around here, my 10?-year-old dog (the "sister" of my sons) had a stroke or seizure and died while I was catching up on some law reading around 0100 (I'm writing this at around 0400 on 15 November). Explaining it to my son when he wakes up in the morning is not going to be easy. Of course, I feel terribly guilty about it, too, thinking she was trying to tell me something was wrong by being extra silly and cuddly earlier in the evening. So she's on the back seat of the car, awaiting the opening of the vet to take care of the body (can't bury inside city limits, even if I could dig and the ground wasn't frozen). I did not think my son would be able to handle coming out of his room in the morning and seeing a dead dog in the living room. Lux aeterna, Cody.
17 November 2000
De Tocqueville Had It Easy
Publisher General's Warning: The following material may prove distressing to the humor- or intellectually impaired. All guarantees and warranties are hereby disclaimed, even where such disclaimers are prohibited by state law.
De Tocqueville observed that the unique characteristic of American government is the danger of tyranny by the majority. The majority of whom, though?
Not the majority of the populace. Neither candidate polled over 50% of those who actually voted, nor over 40% of the total eligibles, nor over 35% of the total adult population.
Not the majority of the jurists, as the judges don't seem to have any idea of what they're doing. (Hint: The Voting Rights Act of 1965, in its legislative history, does have an answer; see Aylon M. Schulte, Minority Aggregation Under § 2 of the Voting Rights Act: Toward Just Representation in Ethnically Diverse Communities, 1995 U. ILL. L. REV. 441.)
The majority of the Electoral College, an undemocratically chosen institution (the rationale for which was destroyed by the 17th Amendment in any event). Which means, in the end, that less than 300 rabid party activists will end up determining the President, the Vice President, every US Ambassador and cabinet officer, every United States Attorney and United States Marshall, two to four Justices of the Supreme Court (quite possibly including the Chief Justice), at least 150 other federal judges…
All of which makes me believe that we'd be better off without states. Remember, Big Business (and hence the Republican Party, which is entirely beholden to Big Business, and the Democratic Party, which isn't much better) is very fond of eliminating "middle management" in its efforts to boost profits by "promoting efficiency." In our scheme of government, that's the states. Ironically, the voting profile of the nationand, indeed, the identities of the candidates themselveswould be substantially different based on a straight popular vote. A straight popular vote would produce a rush toward the center-right, but not nearly so rapid as the status quo.
One of the few political insights Heinlein ever wrote of that has a shred of intellectual honesty and nonpartisanship was his skepticism that geographic residence defines cohesive political interests (see Double Star and, to a lesser extent, The Moon Is a Harsh Mistress). Absent the geographic imperative, we would not pay much attention to the concept of "gerrymandering" (again, see Ms. Schulte's article cited above). Both candidates are very fond of promoting "globalism" (although neither uses that term), but each is all too willing to Balkanize his own nation.
Election 2000 is America's only competitor to Prime Minister's Question Timeboth as civics lesson and as gallows humor. Next thing we know, we'll hear that trees cause pollution, that Poland was not under Soviet dominion in 1976, that nobody ever inhales (or snorts), and that the greatest aspiration of a sitting President is to become a jelly-filled doughnut.
See what I mean?
18 November 2000
The Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 196168, popularly known as "RICO," was originally conceived as a major weapon for attacking organized crime. While some sociologists and publicists claim that there is no such organization as the Mafia, and the organized crime leadership ordinarily denies the existence of the Mafia until either called before a Senate committee or killed in an "accidental" prison brawl with a homemade skiv, there is one group of organized criminals that revels in calling itself the Mafia. Members wear the name like a badge. And they are, indeed, criminals with no conscience, who insist on wearing ill-tailored clothing in public places, including aforesaid badges.
Public places like major SF conventions. For these are not just drugrunners and loan sharks, but the dreaded self-identified members of the Analog Mafia. While their individual acts are not crimes, the overall effect certainly is. That is not the fault of the soldiers, but of the Godfaddah. The Editah.
It is passably amusing that a magazine devoted to the Literature of Change is so relentless in its embrace of the 1947 crewcut white American male space mythology. Sure, there are exceptions; it's hard to imagine Catherine Asaro with a crewcut, and she's too charming to be a mere male. But there were exceptions to Campbell's iron hand then, too. It's the sheer bloodymindednessor perhaps just closedmindednessof the magazine as a whole that's disturbing. Sure, there's more sex now, more (graphic, anyway) violence now, more racial integration now; on the other hand, these aspects were excluded far more by controls external to the magazine than by editorial choice (with, sad to say, the possible exception of the last of them).
That's not to say that variety for variety's sake is necessarily good. Like any biological system, an excessive mutation rate is unhealthy for species survival. On the other hand, so in an insufficient mutation rate. I'm not certain what the optimal level is; I am certain that Granta is too extreme one direction, and Analog the other.
What makes RICO most interesting from a criminal-law perspective is one of its built-in remedies: forfeiture of not just the proceeds of the crime, but of the entire criminal enterprise (§ 1963(a)(2)). With that kind of "penalty" on the line, I'd be far from surprised to find lots of gold chains in evidence at the defense table. Personally, I think the enterprise oughta be forfeited to Gordon… </HUMOR>
So, wise guy, ya think that's not funny? Ya wanna wake up in the trunk of a cah? Or in a trunk fulla stawries previously submitted to every editah in the yewnivahs?
23 November 2000
The 2000 Turkey Awards
Just like last year's list, this is a preliminary list only. Your mileage, your sense of irony, and your cynicism may vary.
25 November 2000
You're a Monster…
Howard, Ron, and Brian Glazer (2000). Dr. Seuss' How the Grinch Stole Christmas. Los Angeles: Universal/Imagine.
Perhaps my fond memories of the Chuck Jones cartoon How the Grinch Stole Christmas spoiled me. <Aside>Go find the Time issue that announced the Man of the Year for 1993. My sonthen three years oldtook one look at it and asked "What's the Grinch doing on that magazine?" Given the particular photo, I have to agree with him.</Aside> But I'm less than enthused about the "new" version starring Jim Carrey.
To start with, Jim Carrey is just plain the wrong individual to be the Grinch, whether based on the book itself (and Geisel's wonderful illustrations) or respect for the predecessor cartoon. The role desperately calls for someone of much greater verbal bite; perhaps John Cleese for a "tall" Grinch, Rowan Atkinson for a "medium" one, or Danny DeVito for a "short" one. The Grinch is a long-suffering exile, whether he realizes it or not, whether by his choice or not; Carrey simply does not, and probably cannot, project that innate irritability. Strike one.
More grievously, the new, "beefed up" plot is a horridor, from a learning perspective, excellentexample of how not to adapt a screenplay. The book presents a short, spare narrative for a very good theoretical reason: the real story is in the interstices. By trying to fill those necessary gaps, the adaptation limits, and even damages, the story. That's not to say that an adaptation must slavishly follow the source material. For example, the two good movies based on Steven King's storiesStand By Me and The Running Mantook a lot of liberties with the materials. But the liberties were tied to the story line and the necessities of the visual medium, not to clever marketing gags and unintentional self-parody. The "back story" of Grinchy-poo's harsh rejection as a child is not only inapposite to the main story, but actually undercuts the narrative by limiting our ability to puzzle through with the Grinch. Strike two.
I suppose that there's the objection that a live-action version is sacrilege akin to Ted Turner's colorization of black-and-white classics in the late 1980s. Nobody would dream of colorizing, say, Citizen Kane. So why should someone dream of altering another icon of midcentury America? One with such a wonderfully unexpected narrator, with a truly memorable song, with animated exaggerations (such as the Grinch's anticipatory smile when he gets a "wonderful, awful idea") impossible to contemplate with "live" actors? Dropped foul tip.
The film's real problem, though, is pace. The cartoon is relentless in its progress; every cartoon "set piece" is integral to developing the character of the Grinch and the plot itself. One cannot say that for the live-action version, particularly since the producer chose to so greatly alter the fundamental storyline and preach from the beginning. Given the massive merchandising connected to the film, such as the badgering ads for toys at Wendy's, one can only conclude that the producer and distributor believe that irony is just like goldy and silvery, but made out of iron instead. That my children picked this up without prompting, even after begging to go see the film, is strike three.
Skip it. Go buy a book instead. The movie is only almost mediocre (1½ stars), and is not even as good as The Phantom Menace.
28 November 2000
The little contrétemps in Florida right now is possible for two reasons, each of which is complete and utter bullshit.
Inept voting systems encouraged by overreliance on 18th-century voting statistics and systems. This is something that the World Science Fiction Society does much better than our government: the Australian ballot, or instant runoff. Ballots are counted from the bottom up, as are the particular races. Thus, the candidate with the fewest votes is eliminated in each round, and the next choice on that particular ballot is now counted. Thus, my ballot (hypothetically) might have looked like this:
Screaming Lord Sutt
Screaming Lord Sutt was eliminated quite early. Thus, my "second place" vote for Nader would be added to Nader's total, just as if he had been the only choice on my ballot. Nader is then eliminated, putting my "third place" vote in Gore's total, just as if he had been the only choice on my ballot. There is now both a clear winner and a clear total of "alternative" votes, which would provide valuable information to both the populace and the government. (Note that the fourth choice is to abstain, rather than provide any impetus for a candidate I actively oppose.)
Of course, the major parties will never agree to this, because it creates the spectre of a viable third party, and allows views outside the narrow center to be expressed without fear of "wasting a vote" and ending up with someone of the opposite views (or morality, or whatever other reason one has for rejecting a particular candidate).
The "political question" doctrine prevents the courts from intervening to force a dispassionate resolution to the issue. This doctrine tells the courts to butt out of issues that have been delegated explicitly to the political branches of the government. Looking solely at the office titles, the Florida situation is suchan elected official (the Secretary of State) is supervising results, the actual counting being done by officials whose power is delegated by the Secretary of State. However, there are other complications; the Secretary of State is also required to comply with court orders concerning voting and voting rights.
The one time that the courts are essentially mandated to intervene in the political process is when that political process results in a violation of constitutional rights of the voters. The usual vehicle for such intervention is the Voting Rights Act of 1965, which in turn stems from the Fourteenth Amendment [PDF download through 1992, 1.7mb]; of late, this has concerned gerrymandering of electoral districts to ensure (or, in the bad old days and still too often in the present, deny) minority representation in the government. (This is yet another reason that geography is a poor indicator of coherent political interests that require representation.) But wait just a moment…
This is all political, too. It has to do with the structure and composition of the governmentthe paradigmatic example of "political." The law, and the courts, are merely extensions of the polity, and in this case it's not much of a leap at all. Given the subject matter at issue in most litigation, it's fair to say that law is politics by other means. The Voting Rights Act itself, for example, singles out certain jurisdictionsincluding Floridafor extra attention, given legislative findings that those jurisdictions have historically repressed minority groupings. The mechanism itself is inherently political, not of "fundamental rights." A mechanism based on fundamental rights would instead treat all jurisdictions equally and smack violaters on the hand with a claymore, wherever those violators might be.
The irony that the composition of the courts will be determined by this political process seems lost on the judicial system. That the courts have also refused to concern themselves with the so-called "political gerrymander" is exactly what de Tocqueville's "tyranny of the majority" implies. Or decries, depending upon one's interpretation.
And just what does all of this have to do with writing? Three critical issues come to mind immediately, even beyond the composition of the courts that will oversee resolution of disputes:
Steven King, Brian Lumley, et al. couldn't do better than this.
30 November 2000
i hate that mouse speshully sins he rites faster than me
Mr. Gordon, I'm afraid you haven't shown sufficient dedication to your fiction this month, and have become easily distracted. Dr. Nemur and I are both concerned that you failed to meet the target we agreed upon for fiction productivity this month. Our objective was for 15,000 words, but you've only managed 3,000, and that is far from ready even for the editorial process. We realize that the inkblots from the election have been fascinatingno, Mr. Gordon, we know that you didn't spill the inkbut we must insist that you rededicate yourself to your fiction.
Let's try to build up to that 15,000 words over the next two months, shall we? In the meantime, please feed Algernon and clean his mouse pad.
I had to give my more-in-sorrow-than-in-anger lecture on safe diskette to a couple of people in the last few days. The MTX 9244 virus (the one that tries to "look" like an MP3 file, but really both sends copies of itself out with every email and blocks access to virus update sites) has been a big pain for them. Fortunately, it only took a couple of hours to work through the problem. I recommend F-Prot over the commercial alternatives. The price is right, it runs in DOS mode (thus enabling it to wipe out a couple of nasty varieties that replace Windows .dll files), and it's updated at least as often as any of the commercial products.
The sad, but at the same time sardonically amusing, aspect of this virus is the way those "music files" get forwarded. They're in the neighborhood of 26k, for starters. What really betrays their origin among the highschool acne-ridden social reject brand of hackersthe ones who believe that producing the world's greatest virus will prove their worthis that they couldn't even bother to spell the names of the musicians correctly. Jimni Hendrix?
Maybe Bill Shatner should show up at Def Con and give the "Get a life!" speech.
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