Surreality Check
A Savage Writer's Journal
March 2000
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Last Month (February)

03 March 2000
Whine, Whine, Whine

My productivity in February sucked rotten lemons. Illness on top of recovery from surgery just did not make for a lot of writing time or energy. It was also a bit of a lull in my "traditional" legal practice, in that there wasn't a lot of briefing or motion practice required. That resulted in:
 

  • 10,000 words of legal writing
  • 1 client kept out of jail
  • 2,500 words of nonfiction outside of legal writing
  • 7,500 words of fiction, of which perhaps 1,000 are useable
  • 14 vivid hallucinations
  • 7 different medications
  • 23 visits to the porcelain altar
  • 6 cleanups from unsuccessful attempts to reach the porcelain altar

Icky, icky, icky.


You will have another opportunity to play "spot the lawyer" at WindyCon this year. This time, though, WindyCon is WorldCon. I'm on two panels thus far, and we'll see what else is going on. RumorMillians and NAW participants (readers or otherwise) are welcome to drop by, especially if you're female and nubile. Perhaps "spot the dirty old man" might be a more interesting contest . . .

Which, of course, brings us to the question of awards. {Insert unsolicited plug for Speculations as best semi-pro 'zine here.} Yes, I will be voting. But not by secret ballot. I fully intend to place my ballot on line before the convention begins. Since I'm continually making such a big stink about stinky awards, I can't do less. I challenge all reviewers who vote to do the same—even for the Nebulas.

I do not vote for the Nebulas, as I am not a member of SFWA (and there may be a conflict of interest that would make membership inappropriate). But my Australian ballot would look like this:

  • Novel— Butler, Stewart, Vinge, Martin, McHugh, Macleod
  • Novella— Chiang, Duchamp, Marusek, no award
  • Novelette— Sterling, Friesner, Hopkins, Eisenstein, no award
  • Short Story— Rogers, Sherwood, Swanwick ("Ancient Engines"), Ash, no award
  • Scriptno award

08 March 2000
Midlife Crises

Stephen Leigh's little attack of musical Viagra lust (puns intended) is perhaps funnier than he intended. His instrument of choice, though, is a little more portable than mine: a 9' Yamaha or Boosendorfer grand piano. No wimpy 14-lb. Steinway action for me. Give me that 17-lb. Yamaha action with its corresponding greater control over quiet passages any time. The extra octave at the bottom on the B is nice, too—sort of like the extra strings on a bass guitar—but of much less utility. I like the Boosendorfer's sound better than a Steinway, too.

Unfortunately, I'm stuck with a much smaller Yamaha now. And no orchestra or band to go with it. Waaaaaah!


Finally, I'm going to pick up the thread I dropped on 23 February about the recent prediliction for Earth-bound science fiction. I think there are two internal-to-SF causes of this unintentional change in the emphasis of written science fiction: Star Wars and Star Trek. Extrasolar science fiction must compete with the two big media franchises for attention, rack space, etc. The more recent addition of Babylon 5 fiction has just added to the problem. But the most important causes are external to SF.

Name for me an extrasolar society that shows much, if any, respect for native ecologies. I can think of only two or three. But, since Apollo, environmental consciousness has worked its way into just about everyone's consciousness (if not into value systems). The continued information technology revolution has opened other planet-bound stories to general consciousness. And so on.

Reality is catching up with a lot of "science fiction." I suspect that we're just taking a breather from deep space—until we get a large-scale program in place sending human beings outside Earth orbit again. The huge cost of Apollo is now (rightfully) seen as only a tiny fraction of what it would take to get to Mars and back, let alone the stars—and people are wrapped up in costly Earthbound problems (which, one must admit, often provide even better grist for the storyteller's mill than yet another Galactic Empire with stark contrast between good and evil).

10 March 2000
Why Agents Should Be Licensed—Lesson One

We don't even have to go as far as scams, or even unauthorized practice of law, for this one. I just reviewed an agent-negotiated contract that is probably going to end up in litigation. I'll try my darndest, but the agent sank his (and my) client, because he didn't know enough about the law to do the job correctly.

The clause in question concerns mandatory arbitration of disputes. There are, in fact, certain advantages to arbitration over litigation—in the right context. But this arbitration clause has two insidious traps hidden inside it. A lawyer would know these traps; so would a properly educated agent. Here's the sneaky part of the clause:

All disputes arising under or related to this contract will be resolved through arbitration through the International Chamber of Commerce . . .

Sounds pretty innocuous. All it does say that contract disputes will be arbitrated, right?

Bzzzzt! Thank you for playing! The first trap is the "arising under or related to" language. That means that anything conceivably related to this contract must be arbitrated—even if it is from a future contract, perhaps one entered into through an option clause in this contract. Anything. If the author gets mad at the editor and names his pet skunk "Pencileater [editor's name]," the resulting action for intentional infliction of emotional distress is "related to" this contract (since the author would have had no relationship with the editor absent the contract). The most anyone should ever agree to in a one-off transaction, such as the sale of a book, is "arising under."

But that's not the juicy part. The juicy part is the reference to the International Chamber of Commerce. There's nothing inherently wrong with the ICC; its arbitration system is very good—for multimillion-dollar shipping disputes between multinational corporations. However, it is very biased against an individual attempting to use the system. The filing fees are very steep; the available arbitrators are all commercial-law specialists who don't know squat about "industry practices" in publishing; and so on.

So my client is now stuck. It's going to cost $3,000.00 (filing fee), plus my fee, to arbitrate a dispute over $2,200 in unpaid royalties. Unfortunately, the law is on the publisher's side in this one, thanks to two boneheaded decisions by the Seventh Circuit's most doctrinaire judge (and I still can't believe he got the other two on the panel to vote with him on the later case). See the cases reported at 105 F.3d 1147 and 86 F.3d 1447.

Had the agent been licensed and had knowledge of the scope of arbitration clauses, or been obliged by an enforceable professional ethics code to consult an attorney on unfamiliar clauses, this problem would either (a) never have arisen because the clause would have been properly struck out or limited, or (b) been understood as a serious barrier to fairness. The publisher in question is not large, but it is a subsidiary of a multinational (not a media company) that certainly knew exactly what it was doing.

14 March 2000
It Ate My Eyeballs

I'll start with a few initial comments on Stephen King's e-book-only release of today.

  • Can you spell "Americans With Disabilities Act"? The printing lockout is, to say the least, insensitive to those of us who can't read on screen for extended periods.
  • For those of you who don't know, virtually all of the e-book outlets are sources for this piece. Except Fatbrain—whose control people have strong personal connections to Stephen King. The public posturing is that Fatbrain's normal policy of allowing two-use downloads (one for home, one for the office/the road) is "fundamentally incompatible" with Simon & Schuster's desire to limit to single downloads. Bullfeathers. Fatbrain indicated a willingness to change its policy, but S&S still won't budge. This is about S&S trying to squish a potential competitor. That an established trade publisher sees the need to do this to an e-book-only outlet says some interesting—and not altogether complimentary—things about the major trade publishers in general and their approaches to e-books, and more particularly about Viacom and monopoly power and tactics. Hey, FTC, are you listening, or asleep at the switch again? Did you use up all of your cojones on B&N/Ingram?
  • To be excessively nice to Mr. King, this is not his strongest work. We'll leave it at that, except to note that most of the weaknesses I noted in the first third (at which point my eyeballs gave out) are the editor's fault. Sorry, guys, but just because it's not on paper doesn't mean that the editor has nothing left to do.
  • The most interesting thing about this release is that the bestseller lists are completely useless. I'll leave the details as an exercise for the reader.


Yo, Julius. Watch your homies, baby. And chill out, Antonius. This ain't Spain, and we don't give out no f*&@!*$!' ears here.

The Ides to beware of, though, are a month from now. Beware the Ides of April! For all of you writers out there who had writing income last year, make sure that you fill out your Schedule Cs and declare the income. Tax evasion is not pretty, and there are signs that the Infernal Revenue Service is getting ready to crack down on self-employment income again. Just a word to the wise, and even to the foolish.

15 March 2000
Tasini Update

This is a "good news—bad news" sort of update. For a general description, see today's article on Law News Network (a relatively reliable source of legal news). If you've forgotten the details, you may want to go back to the initial discussion.

The good news:

  • The panel that originally heard the case has made it even more "pro-author" by clarifying some unfortunate language in the initial opinion that implied that the publishers might have an absolute privilege to reissue. This clarification is probably not pointed at Tasini itself, but at the pending National Geographic litigation Although NG's counsel claims that the cases are not comparable, this issue is critical to NG's position.
  • The clarification makes en banc review by all of the active Second Circuit judges (except Judge Sotomayer, who [wrongly] decided the case below and thus may not hear it) considerably less likely, but for a reason that nonlawyers won't see. Let's assume for a moment that Tasini is heard by the Supreme Court. The Court may decide that whether reissue is a right or a qualified privilege is critical, and send it right back to the Second Circuit with "guidance" to reconsider its opinion. This is called a remand. Judges hate avoidable remands, because a judge with too many remands starts getting a reputation as sloppy or incomplete in his or her work. There's an old lawyer joke that explains this:

    A virtuous man in Heaven found St. Peter one afternoon and asked about a threatening figure in black that he had seen. St. Peter looked in the direction indicated and smiled. "Oh, don't worry. That's just God. Sometimes he likes to pretend that he's a federal judge."

    This revision closes a possible loophole, making remand that much less likely. The revised opinion makes reissues more a matter of contract than of copyright. That's attractive because it gets the cases out of federal court, into the state courts.
    <CYNICISM> There's nothing federal judges like more than reducing their own caseload, which admittedly is far from light. But shoving the problem into somebody else's lap is not a very honorable way of doing so. </CYNICISM>

  • The clarification may deter a Certain West-Coast Publisher from certain disreputable "reissues." Note that I said "may."

The bad news:

  • Unfortunately, making Tasini more pro-author and anti-big-publisher is going to:
    • Somewhat increase the probability that the Supreme Court will grant certiorari and hear the case. Of late, obvious long-term commercial implications of a circuit opinion have increased the probability of cert from slightly less than 1% to about 1.5%.
    • Substantially increase the probability that the publishing industry will lobby, and lobby hard, for legislative changes to the Copyright Act (specifically 17 U.S.C. § 201-203) that will specifically overturn Tasini. Since the Berne Convention's treatment is even more muddled than the American, and the WIPO treaty essentially omitted consideration as "not ripe," Congress may well cave in. Possible slimy, underhanded counterattack: some cynical cretin may point out how much of the US publishing industry is owned by them damned furriners.
  • The revision itself will further delay final resolution. The new panel opinion restarts all of the "clocks" in the case, including both the request for en banc review within the Second Circuit (which does have internal guidelines for granting or denying these requests) and the forthcoming petition for certiorari. In other words, my previous estimate is now off by six months to a year—the wrong way. We're looking at 2004 or 2005 before this finally gets resolved, guys.

16 March 2000
Legal Weirdness and Outrage

In an opinion issued a few days ago by the US Court of Appeals for the Seventh Circuit, the Artist Formerly Known as Prince earned the right to damages for infringement of his name. In the early 1990s, Prince adopted "the symbol" as his name. The copyright in "the symbol" was not registered at that time, and was transferred to Warner (presumably for cover art). As around that time, Pickett created a guitar shaped like "the symbol" and showed it to Prince. In 1994, Prince started appearing in public with a guitar shaped like "the symbol." So Pickett sued Prince, alleging copyright infringement. Following the usual procedural shenanigans, Prince reacquired the copyright in "the symbol," registered it, and filed a counterclaim for copyright infringement against Pickett. In simpler terms, the unauthorized creator of a derivative work (Pickett) claimed that a similar derivative work by the creator of the source work (Prince) was itself a violation of the derivative copyright enjoyed by Pickett—and that the source creator could not claim infringement by the unauthorized derivative. The Seventh Circuit saw right through this one: Prince won. Chief Judge Posner ("The Poz" to those of us who have argued cases before him) wrote a not quite scathing opinion—about as close as he gets to "Counsel, did you get your law license in a cereal box?"

OK. That was heavy going. How about something a little lighter?

Is S&M sex?

In a case in Canada, Terri-Jean Bedford, a dominatrix with some, shall we say, interesting toys in her house, was convicted of running a prostitution business. She appealed the conviction, arguing that S&M is not sex, and that therefore she is not a prostitute. I'm sure that the appeals judges had an interesting time with this one. You can get a few more details to satisfy your prurient interests, you naughty children, in this article.

And now, the outrage. Some readers may recall my rant against Nancy Stouffer—or, rather, the greedy bastards advising her—and her misapprehension of trademark law. Further research has confirmed that, in the Second Circuit (which includes New York), her position is dead meat. So, what does she do?

Well, if Dad denied you the use of the car, you went and asked Mom, right? First, she filed a motion in the declaratory judgment action in New York, brought by the publishers to have the court rule that J.K. Rowling's muggles don't infringe Nancy Stouffer's muggles (see Scholastic, Inc., et al. v. Stouffer, No. 99-CV-11480 (S.D.N.Y., pending)), to have that action thrown out because the New York court doesn't have personal jurisdiction over her. What's irritating is that an objection to personal jurisdiction is supposed to be the first formal filing made by a party—and Stouffer's lawyers waited until six days before the pretrial conference, three months after the declaratory judgment action was filed, to file their motion.

Stouffer then turned around and filed her own infringement action in Philadelphia (Philadelphia being in the Third Circuit, which hasn't ruled on the issue at hand before), while the New York case was still pending. That's a no-no akin to asking Mom about the car while Dad is still in the room. In theory, the Phildelphia case should be immediately transferred to New York and consolidated; if Judge Schwartz in New York rules that the New York court does not have personal jurisdiction over Stouffer, which is actually possible (although probably inappropriate), the case would then be transferred back to Philadelphia. The interesting issue is whose law would apply—a far from trivial question. In theory, the law applicable to the first-filed case (Second Circuit) should apply under the transfer statute. Nonetheless, there's an argument that since that first-filed action was dismissed under Rule 12, it's not really consolidated anymore.

Of course, this is only a thumbnail sketch; procedurally, it's a lot more complicated. But it appears to be an unanswered (or at least not clearly answered) question in choice of law. It would be much plainer in a diversity suit where state law applies, because there's Supreme Court precedent on the issue. But there's also Supreme Court precedent saying that the rule is different in purely federal cases—but not specifying what the rule is. Thus, Harry Potter may end up meaning more to legal history than a footnote in some judge's opinion when he or she is trying to be cute.

19 March 2000
Tilting at Windmills

Bertelsman GmBH has announced an intention to sell its stake in AOL Europe. On an investment of $50 million a few years back, it will realize somewhere in the neighborhood of $8.25 billion-with-a-b. Bertelsman has previously—repeatedly—stated that it wants to continue penetration of the American publishing industry. This may be good news for me personally—I'm salivating over the potential attorney's fees for the inevitable antitrust lawsuit—but is very bad news for authors, the reading public, and editors who retain an ounce of independence.

One of the unfortunate problems with Bertelsman's corporate culture is an unwillingness to take risks. One can infer this from the fiction (and, for that matter, nonfiction) lists for Spring 2000 from the various Knopf imprints, including Del Rey. While the lists are not complete pablum, I've been unable to find much, if anything, that looks like it's very daring. Sure, there's some avant-gardeish fiction, but it's "safe" avant garde. Perhaps this is just another symptom of the publishing industry's relentless wallowing toward the marshmallow center, as epitomized by the Modern Library's "100 Best" lists (see my previous comments). Of course, this leaves more room for the small press to establish survival niches on the radical right, the radical left, and even in the radical center (and there is one; those of you familiar with contemporary British politics need only recall the Steele-and-Owen show of the mid- to late 1980s).


The first shoe has dropped. Virginia has passed the Uniform Computer Information Transactions Act, the greatest threat to authors' rights since the civilianization of ArpaNet (which, in turn, became the internet). Virginia is, of course, the home of AOL. UCITA should probably be called the "Unregulated Commercial Interests' Terrorism of Authors." It provides many default ways to "contract around" copyright law, particularly concerning derivative rights—although it is claimed, by the software industry, that the changes are necessary to ensure the continued viability of software extortionsales. Unfortunately, the UCITA by its own terms relates to any "transaction" concerning "information"—and the definition of "information" specifically contemplates textual material.

Write your state legislators and governors now and tell them that you oppose UCITA. If you're in the process of negotiating a contract, don't let the other side impose Virginia as the choice of law. And, if that doesn't work, bomb their houses. When they run screaming into the streets, mow them down with machine guns. Then release the vultures.


Next time, I'll ramble on a little more about writing. That leaves one serious question, though: Is that a promise . . . or a threat?

24 March 2000
Unscheduled Program Change

Management at Radio Free Albemuth has "suggested" a change in today's programming due to a family emergency. Since RFA has not been able to acquire an episode of Skywalker's Island on such short notice, you'll have to put up with the following drivel. But don't touch that dial!

I'm going to apply a more lawyerly spin to Tamela's comments on censorship. I think she reached the right result—that censorship is unjustified—but I must differ with the reasoning. You may wish to review my comments on the notorious NAW fat controversy and Tamela's previous remarks on the wifebeater shirt; if you're really ambitious, you should probably review United States v. Snepp, and recall that it has been a major influence on my adult life and writing career.

Externally imposed censorship is evil. Nonetheless, words can—and do—hurt, and can be misused for precisely that purpose. A reasonable adult will not purposely engage in such misbehavior. Too bad so few of us qualify as "reasonable," and all too often as "adults."

This, in the end, is the real problem. Recognizing the evils of censorship is the result of calm, ordered, rational reflection on the cost of censorship. The anger and hurt resulting from words, whether namecalling in school or vicious defamation, is the result of upset, disordered, irrational reaction to the words themselves. The difficulty lies in choosing the appropriate response. Attempting to apply an irrational, personal, impassioned response to all communication is itself hurtful. Attempting to deny that words hurt is an error closely related to the evils of censorship.

Don't get the idea that I'm a wishy-washy centrist. I'm not. I'm fairly radical on free speech. "Make no law" means "make no law." I've seen the results of censorship, both inside and outside this nation. Those results are far worse than even the results of bigoted, ingrained diatribe, whether against individuals or a perceived minority. (Aside: The radical feminists should stop and reflect that, absent disapproval of censorship, we would never have reached the point at which we could even consider the value of pornography and whether it should be suppressed, because speech by women about sex would be suppressed under the Comstock Act—or worse.)

Thus, I disagree with "zero tolerance anti-hate-speech" provisions such as those outlawed not so long ago at the University of Wisconsin. By suppressing speech—however hateful, however valueless from "our" perspective—at the source through coercion, we accomplish nothing in the long run. Suppressing the speech does not change the underlying attitude or impulse to say those naughty words, whether they are "hippy-type pinko fag," "Jewboy," "uppity dyke," or "damned heathen"; whether they are based on stereotype or personal animosity; whether they are explicitly political or just explicitly stupid. Yet that is the real goal of the PC movement (and, equally, its fundamentalist counterpart, which is at least as unforgiving of disagreement). In many cases, the thrill of saying something "forbidden" is reinforcement for that attitude; there are, of course, even darker aspects involving positive and negative feedback loops, creation of resentment, and so on. Think about Columbine High School for a moment; then look at Northern Ireland. It's not just the kids, folks.

Censorship, even that intended to suppress objectively harmful and unreasonable speech, is counterproductive. Nonetheless, that does not mean I have no compassion for the urban teenager "of color=" who has never heard a positive word about her race (even from others of her race). I'm not entirely certain what the appropriate remedy or prophylactic measure is; I am more than entirely certain that it is not censorship, whether overt or disguised as some campus "feelgoodabouteachotherandyourselvesorelse" code of conduct that is supposed to suppress only worthless speech. Recall that for most of post-Elizabethan history, sex and discussions of sex have been politically regulated as political speech everywhere in Euroamerican society; thus, even mentioning the evils of pornography would get one thrown in Reading Gaol.

So, where does this leave us? Still scrounging for the "right" answer to hateful speech. I still believe that the answer is somewhere in common courtesy, which, alas, is not very common at all.


Congratulations to Deputy Diana for her outstanding performance in her law-enforcement-officer's course. As a bonus, crossing this hurdle will leave more time for Diana to finish that next novel (hint, hint).

29 March 2000
Girls Just Want to Have Fun

Nikki might have been quite at home in my college environment. Back in those days of "free love" (or at least cheap), long before HIV became known outside specialized medical circles. Back when I was only in training to become the dirty old man I am today. Back when Jerry Falwell was just a local jerk, instead of one with a nationwide following of neoPuritans whose ultimate fear appears to be that someone, somewhere, is having fun.

There is a point here. As usual, though, it's not very straightforward. The argument in Santa Fe Independent School District v. Doe, which I mentioned on November 18th, was today. This is almost the flip side of Nikki's well-taken thoughts. The point of contact is the coercion of values. Just as the post-Renaissance West has imposed stuffy, abstract values on generations of women (and, for that matter, men, albeit somewhat less consistently and successfully) that deny any positive value to non-"romantic" sex, American Protestantism imposes a frightening urge to demonstrate that one is holier-than-thou through extravagent displays of piety that all too often mask a rather nasty bigotry. Just ask Lillian Gobitis.

The real problem, though, is something that Nikki doesn't mention explicitly: hypocrisy. How someone who lies to him or herself about his or her motives, behavior, and values is holier than anyone escapes me.


Friday should be a cheery day in the annals of literary scams. The Deering sentencing hearing is going forward before Judge Forester in Lexington, Kentucky. One interesting facet of federal law is the nature of plea bargains. In almost all states, a plea bargain between the prosecutor and the defendants can create a binding agreement on the sentence; the judge can't go above or below the sentence agreed upon. Not so in the federal system, which is constrained by the United States Sentencing Guidelines. Although the prosecution may argue strenuously that a particular defendant has been so cooperative that he or she should serve no jail time (the defendant, silly, not the Assistant United States Attorney), the judge can still reject the "agreed" sentence. Will that happen this time? We won't know until next week—the US Attorney's office cannot reveal or comment upon its sentence recommendation until after Friday's hearing.

I don't bet on criminal sentences—not even potato chips. But Judge Forester is known for having little sympathy for white-collar criminals . . .

31 March 2000
Club Fed, Here They Come!

I did pretty darned well on January 4 in predicting two out of four sentences in the Deering case, based just on publicly available information. I predicted (for those of you who'd rather not follow the link) that Dorothy, Bill, and Daniel would receive sentences between 57 and 71 months, while Charles would receive a sentence of between 51 and 63 months, based on (1) a scheme set between $1.5 and $2.5 million, (2) application of the two-level enhancement of USSG §3B1.3 for abusing a special position of trust, and (3) that all four had control roles in the scheme.

Judge Forester passed sentence today. The scheme was set at $1.1 million, he appears to have rejected the §3B1.3 enhancement (probably because a literary agent's trust is not "special" enough), and distinguished Bill and Daniel's roles. So, without further ado, here's what the guilty buggers got:

  • Dorothy Deering got 46 months of confinement, followed by 36 months of supervised release. She was also ordered to pay restitution and barred from employment in any aspect of the publishing industry.
  • Charles Deering got 41 months of confinement, followed by 36 months of supervised release. He was also ordered to pay restitution and barred from employment in any aspect of the publishing industry.
  • William Paul Watson, aka Bill Richardson, got 12 months of confinement, followed by 36 months of supervised release. He was also ordered to pay restitution and barred from employment in any aspect of the publishing industry.
  • Daniel Craig Deering got 60 months of probation and supervised release. He was also ordered to pay restitution and barred from employment in any aspect of the publishing industry.

The United States Attorney's office has established a toll-free victim's hotline with a recorded message and instructions for further contact at (877) 863-0360. This number is only for victims, not for people looking for more information on the case. Victims should also contact Mr. Eric Evans at (606) 231-8161 for information on the civil suit that is still proceeding against the Deering scheme in state court.

This is an occasion for the honest among us to do a little jig. The only disquieting area is the restitution order. Under the federal system, all assets acquired and income earned before the end of the period of supervised release above a level slightly above the poverty line is supposed to go to restitution to the victims. The best possible case that I can see is that Daniel and Bill will get well-paying jobs in the insurance industry and pay in a total of around $125,000. That might be hard with federal felony convictions for fraud, even in the insurance industry. That's only ten cents on the dollar of the scheme specified in the sentencing report, which is probably less than half of the entire scheme (which is why victims should contact Mr. Evans). That's the best case. I'll guesstimate that victims might receive between four and five cents on the dollar. A return of $700 is better than a poke in the eye with a sharp stick, but it doesn't seem much compared to a $15,000 investment and the emotional loss.


Writing productivity hasn't been great this month. I've put out about 25,000 words of nonfiction, most of which seems to be reasonably good. I've also done galleys and page proofs of two law journal articles, and I'm starting on the page proofs for a book due out in August. Which left not a lot of time or energy for fiction. Next month should be better.

I think I said that last month, too.

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