Last Month (June)

01 July 2000
The Austin (Minnesota) School for the Culinary Arts

Spam—it's not just for AOL anymore!

If information wants to be free, where does that leave spam? No, I do not mean the semicomestible "spiced pork and ham" from Hormel. (Yes, Virginia, there is generic Spam. Oh, no, not on my carpet!) I mean the semi-intelligible crap that ends up in our emailboxes every day.

Let's do a little math, shall we?

Figure that approximately 10% of non-internal email traffic is spam—a fairly conservative estimate. Multiply that by the average of about $22 a head for service, both individual and commercial, and we get a monthly cost of $2.20 per head, which must be reduced further by the amount of that service cost that's devoted to email. If it's only 45%, that leaves about a buck a month a head; multiplied by the 300 million distinct users in the US, Europe, and Japan, that's … free, right?

The June end-of-month book review will be late this month. Hey, it's the end of a fiscal quarter. Gotta get those invoices out. All three of them.

Actually, I'm just finding writing the damned thing difficult. I've made about six false starts on the review, each one substantively different. It's a book that deserves a lot more attention than it's going to get in the speculative fiction community, if only because it can only reignite the cyberpunk wars, in a rather bizarre way. The book has the potential to build a bridge from the "present" to cyberpunk. However, many of the detractors of cyberpunk don't want any bridges built to it. True, most of cyberpunk is crap. Show me a literary or artistic movement that isn't!

But, unlike the reviews that have appeared recently in some places, at least I'm trying to come to grips with the material. I've given up reading reviews by certain reviewers, because they're getting their plot summaries from the marketing blurbs, which are written by people who haven't read the books. A little intellectual honesty would be nice; it also appears to be too much to expect. The next time I catch this happening, with a specific book, I will name the reviewer and cite the review. I don't expect to be waiting very long …

04 July 2000
Literary Wet Firecrackers

The paramedics on duty today around here got a big break—it has rained, hard, most of the day. Thus, more fingers remain attached to hands and more eyeballs remain intact. If that seems too gruesome, tough; I worked the 4th in an ER three years in a row, back in my misspent youth.

But that's not kind of wet firecracker I mean. Instead, I'm referring to a later work that utterly fails to meet expectations established by earlier works. One example from the Savage Reviews is Robin Hobb's current "Liveship Traders" series. I had pretty high expectations, based on her previous work. The cover of the first book started to bother me, and my expectations were shattered within 50 pages. I'm picking on Ms. Lindholm only because the contrast is so great, and so recent; one could say the same about Walter M. Miller, Jr.'s two Leibowitz books. A Canticle for Leibowitz remains the essential postnuclear apocalypse novel; the semiposthumous successor doesn't even belong in the same bookstore. This is not, so far as I can tell, the fault of the posthumous collaborator; the material is just so deeply flawed at the conceptual level that I do not believe anyone could have salvaged it.

Why?

• Some authors simply don't have more stories left in them after their initial successes. Or, rather, they can't get them on paper. Mr. Miller appears to be a prime example.
• Some authors so crave the finer things in life—food, clothing, shelter—that they end up writing crap to make ends meet.
• Some authors lose their courage, either over lackluster sales of earlier material or just the courage to change. They end up trying to recreate the original book over, and over, and over—and failing miserably.
• Disturbingly, some authors don't get the competent, detailed editorial guidance they got earlier—and need it. The current NY publishing scene is not producing competent editors. In fact, it actively encourages irresponsible and incompetent editors by emphasizing marketing over everything else. Many individuals in charge of editors have little or no experience actually editing. This is self-defeating.

Yeah, but who is he to be saying this? Well, kids, I've been publishing stuff of my own for a couple of decades (not self-publishing, mind you), I've been in and out of the periodical and publishing industry over the same time span, I've been a pen-to-paper editor, I've been counsel at a trade publisher. I've seen all of the little games; sad to say, I've probably participated in some of them. And, although the examples I cited above were speculative fiction, it holds in any area of fiction (Thomas Pynchon, Patrick White), and seems to hold in much of nonfiction, too (Shelby Foote, Barbara S. Tuchman).

At least with books, though, the author can go back and start fresh on a new one. That's tough to do sans digits.

08 July 2000
We Want Information

So, information wants to be free, eh? Well, perhaps; it really all depends upon what one means by "information." Here are a few examples, of varying provenance.

1. The figures from the 2000 Census: The information itself will be available for free, and bloody well should be. It's already been paid for. The only charge by the government will be for the costs of transforming the data into specific media formats.
2. The opinions of the federal courts: In what is called "slip" form, these are already available for free, or for media cost only. However, the "slip" opinions (the opinions actually issued, stored in a slipcase until ready for final publication) are not ordinarily considered "citeable authority" more than a few weeks after release. Yes, the opinions have already been paid for. Certain monopolistic assholes in St. Paul, Minnesota continue to charge truly outrageous fees for these, and other, judicial opinions. I can accept cost of media; I can even accept the actual cost of copyediting for the occasional error. That accounts for about 5% of the list price. This is information that desperately wants to be free, but won't be until the DoJ gets its head out and realizes that West overcharges the public—both directly, through the book- and database-costs themselves, and indirectly, through the increased cost of legal research—an amount comparable to Microsoft. Except because it's required for accurate analysis, we really don't care about the exact expression.
3. The ceiling of the Sistine Chapel: Ah, here's an example from the opposite end. The content of the fresco is in its expression, not its overt "message." This, then, is one test for whether it's "information." (Whether a digitized representation can ever be "faithful" will be left for pure speculation; this rant is about theory.)
4. And now, the hard case: Music and literature. From the viewpoint of the radical "information wants to be free" camp, this is easy—if it can be digitized, it's "only" information, and thus wants to be free. In the end, though, this is a specious argument. The treatment of court opinions shows where it goes wrong. Remember the distinction between slip opinions and citeable authority? Where does that money go? That's right—not to the creator, but to a market-dominant middleman. This kind of "information" (whose ultimate value is in the expression and not its overt "message", and thus like the Sistine Chapel; this is purely arguendo) doesn't want to be free; it wants to be cheap. Just how much piracy would there be if the average CD was $4.95 instead of $17.95 (list)? Just how much piracy would there be if the average ebook was $1 instead of $12, or the average hardcover $8.50 instead of $25? In other words, we're not paying much for the information; we're mostly paying for marketing, distribution, and obscene (but hidden by the greatest speculative fiction of all, the generally accepted accounting principles or their even more-evil entertainment-industry cousins) profits. We're sure as hell not making very many authors or musicians rich.

The point? The arts pirates are attacking the wrong target—that is, if they really do want change. That would require that they funnel their efforts into private antitrust litigation against virtually every player in the publishing and entertainment industries, from the agents to the publishers to the distributors to the corner shop owners. Given that this is not happening, I leave the real (undisclosed, or perhaps even unconscious) motivation of the arts pirates as an exercise for the student.

And here's Pandora's box:

If information wants to be free, how (ethically) does Napster justify making its founders rich? Or is intellectual dishonesty and internally inconsistent behavior the goal? (None of which is to say that I don't think it wouldn't hurt to have the major record companies and publishers cut off at the knees.)

11 July 2000
The Blurb Police

(No, it's not a recent "discovery" from the vaults of some Rockford garage band.) Today I'm going to rant about one of the deep, dark, not-so-secrets of the commercial publishing industry—the equivalent of celebrity endorsements.

Once upon a time, not so long ago, a group of little old ladies formed an investment club (not very far from here, in fact). With some creative accounting—not intentionally, I don't think, just ignorantly—they calculated their annual return over a ten-year period as 23.5%. That is a helluva lot better than most investment advisors or publications; it's in the top 1% of all advisors over that period, according to the Hulbert Report (which tracks such things in a long-term attempt to test the so-called "random walk" theory).

So these little old ladies, from Beardstown, Illinois, wrote a book. A bestselling book from Buena Vista (the publishing arm of Disney). And it came time to start planning the paperback edition. At about that time—months before the book went to press, or cover flats were prepared—a cruddy, skeptical reporter looked again at the Ladies' accounting practices, and discovered that they'd been including their monthly dues in the return column (not the capital column), among other problems. Auditing their "book" resulted in a restated annual return of just under 10%—respectable, compared to investment advisors, but poorer than a buy-and-hold strategy on a risk-adjusted basis. Said reporter published said article in a nationally distributed magazine, which was subscribed to by Buena Vista.

The cover of the hardback edition had trumpeted the 23.5% return. The editors at Buena Vista decided to leave the cover alone and just put a small disclaimer inside the book, just after the title page, and issue the paperback without other modification. (Remember that this is still a couple months before press time.)

So, naturally, somebody sued. Two somebodies, one in California, one in New York. Each claimed that the continued, known, false claim on the cover of the book was not adequately disclaimed in the interior and constituted false advertising. The publisher claimed a First Amendment right to use an extract from the text as part of the advertising. And, the way of the law being what it is … the consumers won in California (Keimer v. Buena Vista Publ.), and the publisher in New York (Lacoff v. Buena Vista Publ.), although both decisions are on appeal.

Let's take the publisher's New York position (and the New York decision) on its face, and assume that there is such a First Amendment privilege. There doesn't appear to be, but, as we'll see, that's irrelevant. That means that the contents of a book's cover is privileged to be as objectively false as it can be, so long as that falsehood is drawn from the contents of the book. (The California decision says that when it's objectively false and known as such to the publisher, that the advertising function controls over the First Amendment and subjects the book cover to regulation for false advertising.)

Now we'll ask a not-hypothetical: What result when the publisher asks for "blurb endorsements" without allowing the prospective endorser to see the entire manuscript (even pre-galley)? (Let's assume that the publisher's excuse is "late revisions.") In that case, can the publisher claim the privilege outlined in Lacoff? I think not. An endorsement, unlike an extract, must (by its very nature) be evaluative. When the publisher knowingly withholds a significant part of what is to be endorsed from the endorser, the endorser's endorsement is not based upon the content of the book. That makes it pure commercial speech which, under even New York law, is subject to regulation for false or misleading advertising.

As I mentioned, this is a not-hypothetical. I have my beady little eyes, and beady little subpoenas, aimed at a certain major genre publisher. I'm just waiting for the first obvious not-hypothetical. You probably know exactly who you are; it's not the publisher that inspired this particular rant, which was set off precisely because the book in question was treated so differently from the way that publisher usually does its blurbs. (So, Confidential Informant #7, you can breathe easy.)

The really sad aspect is that this is avoidable. There are so many other ways to create jazz on a book cover without using outright falsehoods (even if it merely involves self-deception and/or deception of the endorsers) that the "cover blurb" need not be a critical element. If you're really determined to continue with blurbs, make sure that your company lawyer has each endorser sign a statement that he or she has read the entire manuscript, and that his or her opinion is based upon that complete reading. (You do have lawyers on staff to handle your contracts, don't you?) Even if it's just wink-wink, nudge-nudge, say-no-more, say-no-more, business as usual, this makes it virtually impossible for one of those nasty old plaintiff's attorneys to actually win a case when said documentation is in the file. Well, except (maybe) if you start having new novels come out with endorsements by MZB, L. Ron Hubbard, and Virginia Andrews… unless you've found a way to get them to do something while they're dead that they didn't do while they were alive: read before gushing.

14 July 2000
The Envelope Please …

Now, a little something on "closed" awards programs that claim "open" status. And cultural imperialism, and xenophobia.

What do the following 20th-century classics have in common?

• J.R.R. Tolkein, The Lord of the Rings
• Patrick White, Riders in the Chariot
• Kazuo Ishiguro, The Remains of the Day
• George Orwell, 1984: A Novel

They were all originally published in English; they were all arguably among the ten best books publishing in English during their respectives years of first publication; and none of them was even considered for the NBA, ABA, or Pulitzer Prize (and the Tolkein and Orwell would not have been eligible for Nebulas during their years of first publication under current rules). The reason is very simple: In each case, there was no American edition during the year of first publication. (There are similar issues in children's literature.)

This parochialism—in the age of Amazon.com and, more particularly, since the adoption of the Berne Convention—in the nation that prints the majority of the English-language original books in the world seems just a bit xenophobic. And, perhaps, a sign of a serious literary inferiority complex. Do we need to have "our" prizes protected from them damned Brits (and Aussies, and Canucks)? If so, what does that say about "our" books?

As a modest proposal, I suggest changing eligibility rules to reflect only the language of original publication. There is a reasoned basis for this distinction: the impossibility of perfect translation. As an exercise for the student, might I suggest reading the poetry at the end of Dr. Zhivago in English, Russian, and French, side-by-side? Do we really need to "reserve" the very top awards for stuff that originates in America? A specialized award (e.g., one based on regional fiction) is one thing; the top of the line is another.

In addition to the US Open (golf and chess, for that matter), there is also a US Closed tournament, open to only US citizens with US registrations and credentials who have lived in the country for at least 15 months. Care to guess which tournament has better play and more prestige?

This is particularly shameful in speculative fiction, as the vast majority of all books are published in the US, despite the increasing presence of Australian work and the continuing presence of British work.

18 July 2000
Lit Crit

(Written 18 July, posted 20 July due to technical difficulties) Well, I suppose it's time to get back to literature. I've been dancing around it for the last few entries. Time to strike for the core.

So, here's today's issue:

What's wrong with "just telling a story"—with "light entertainment"—with "escapist stuff"? It's easier to say "this is evil crap and should be destroyed" than to explain the rationale behind it. I think I finally have managed to put it into relatively nontechnical words. Yes, there is a technical language of criticism—the one in which there are only four genres: drama, verse, prose fiction, and prose nonfiction. And so on. It's mostly a load of crap that some assistant professor who was overimpressed by the 1960s Paris school invented as an excuse to write that tenure-giving book. It's really quite meaningless.

So, anyway, why do I object to "light entertainment"? Don't get me wrong; I don't demand that everything become Hamlet, or The Tempest, or The Recognitions. But, at the same time, we can't escape the fact that written literature requires a helluva lot of brainwork at any level above "See Spot. See Dick and Jane in the bushes. Dick is happy. See Spot run off with Jane's bra. Jane is sad." So, if one's brain is already engaged to an extent unimaginable to the general population 200 years ago, why stop in first gear? Isn't "light entertainment" a subtle insult—implying that such is the limit of the reader's intellect, or at least will to use it?

But there's a more important reason to reject "light entertainment:" Human beings are about stories. Virtually everything we do is, in some sense, "story;" why should our entertainment be different—unless that entertainment is supposed to deny our humanity? Not everything needs to be Shakespeare or Gaddis. But, conversely, descending below the level of story to subliterate crap like, say, Gor is not acceptable.

I can't describe where the line is. But I know it when I see it. (You may wish to ponder the context from which that statement is twisted.)

To be continued at a later date. Is that a promise or a threat?

21 July 2000
Celestial Accounting

… Let there be light
And there was light

Then there was a power bill.

At the moment of Creation (whether it "just was," was the Big Bang or some equivalent, or was a conscious act of some supernatural power), some energy became discrete enough to manifest itself as matter. Matter is just a special case of energy; recall that the mass of subatomic particles is not measured in ten-to-the-minus-whatever kilograms, but in electron volts. m = e/c² and all that.

Can you imagine, though, the superhuman equivalent of Illinois Power (and, by the way, I'm stuck paying the highest electricity rates in the country), and its attempts to collect for the bill? For there will be a bill. Everything we know about physics says that there is a cost to everything; we have yet to come across an exception.

What happens when the bill hasn't been paid in a timely fashion? Is there some cosmic collection agency out there that first makes annoying phone calls at dinner time, then breaks kneecaps, and finally sends deadbeats to sleep with the interstellar debris?

What currency does one use to pay a debt this enormous?

Just what drugs have I been taking, anyway?

22 July 2000
But I Drink Amstel Light, Doctor

A study … concludes that cheap beer leads to gonorrhea. The relation presumably results from the powers of beer to get young adults to engage in risky behaviors, such as driving or other things you can do in a car. The authors estimate that a 20-cent tax hike per six-pack should lower national rates of gonorrhea by almost 9 percent, apparently by forcing some people to keep their hands in their own, empty pockets.

—Steve Mirsky, "Alcohol, Tobacco, and Soy Alarms,"
Scientific American 283(1) (Jul. 2000): 112

Yeah, and next someone will study whether the decreased rate of gonorrhea is offset by increasing rates of blindness from too much pocket pool.

Actually, though, this item points out both a strength and a weakness of scientific research. It's fairly commonsensical to say that alcohol, through its weakening of inhibitions and usual party-atmosphere context, results in riskier sexual behavior, and thus in increased incidence of STDs. This would not be the first time, though, that common sense had proven wrong, particularly when attempting to link human behavior with both an outcome and an impetus. The work had to be done.

However, it also goes too far, and reflects a shocking naïveté about personal economics. The kind of extrapolation cited—whether as a result of mathematical modelling or attempts to study populations—simply has little relationship to reality. If scientists should have learned anything over the last century, it is that human behavior is not susceptible to treatment as if it has nice, clean, easily defineable variables that maintain their independence. This study is an excellent example. If the price of beer rises, why do these scientists assume that the kids already used to a price level of x for their buzz won't find a substitute, whether malt liquor or other substances? And wouldn't a campaign to include a pair of condoms with every sixpack have an even greater impact on public health, at an even lower cost? Or, perhaps, is there another agenda or three at work here?

For this study, and its stated conclusion, demonstrate the three-layered arrogance of scientists' policy recommendations:

1. That the objectively best (leaving aside for the moment the question of how that is to be determined, although it is far from trivial) policy option on any given issue is the one that must, perforce, be adopted;
2. That all collisions among policy options on different issues can, and will, be objectively resolved; and
3. That science and purely numeric methods are the only acceptable means of defining policy options.

Don't get me wrong. I'm not science-bashing. Science, including our inadequate and usually misguided efforts at "social science" (which is usually not a science, for a number of reasons including inability to reproduce conditions and results), is a necessary component of any internally consistent, intellectually honest, and stable policy system. Necessary, but not sufficient. Specific counterexample: Absent nonscientific inquiry, the only acceptable policy system is one that results in the greatest good for the greatest number.

"… three generations of imbeciles are enough."

24 July 2000
Show and Tell

 
Warning: What follows is a theoretical, somewhat circular literary argument. I'm going to throw a little sand in the face of the commercial fiction establishment. (The 500-pound rocks will be placed up in Theory Corner shortly.)

A Modest Proposal
For
Preventing the Interminable Fantasy Series (IFS) from Being a Burden to Its Readers or to Shelvers; and for making them Beneficial to the Readers

Writers have drawn the wrong lesson from the "show, don't tell" debate. Because they have not actually read the source material (e.g., Booth's long, but clear, The Rhetoric of Fiction), they don't understand the object (grammatically and logically) of "showing" and "telling". The advice is not about extensive description of surroundings as a substitute for character development, as the IFS has interpreted the issue. Instead, it is about the theme, and especially moral stance, of the work. In other words, one should show the actions (with appropriate context) that lead to the work's climax and resolution; how much else is shown or told is irrelevant.

There is a distinct contradiction in applying this concept to speculative fiction, and particularly to the IFS. The whole point of speculative fiction is that it depends upon imagination for its basis (significantly more than "mainstream" fiction does). But the endless descriptions of pseudomedieval fashion with their flowing brocade gowns and robes, lace imported from some organized cottage industry and described in enough detail to reproduce it exactly for convention Masquerades, and so on do not engage imagination: Instead, they limit it.

Thus, a proposal:

Editors, and conscientious writers, shall allow detailed descriptions to exist only as necessary to the underlying story, and shall eat the remainder of the manuscripts. Cellulose is a complex carbohydrate that, with proper preparation, can nourish the avid bookworm. I have been told by a traveller from Asia that soy-based inks add a delicious accent.

Unless, of course, we all want to continue paying too much for books. A leaner book costs less to produce. Even if the publishers won't reduce the list price (and anyone paying list price for anything other than a special order should be reeducated immediately), making the books leaner might very well delay the next round of price increases. Then there's the reduction in back and shoulder injuries suffered by bookstore clerks desperately attempting to squeeze the latest monstrosity onto the shelves, especially if there is a facing requirement due to copaid advertising.

We could just require novelists to read Booth. They don't have to agree with everything in the book; at least they might be thinking, even subconsciously, about those issues. Although it's an intimidating book, it is only 457 pages of relatively large print—about 60% of the length of the latest books by Jordan, Wurts, et al.

And so, the modest proposal:

Before being allowed to submit a manuscript to a commercial publisher, novelists shall certify that they have completed the reading in the prescribed pre-candidacy curriculum in literature (English, comparative, or another language) at a top-25 program.

I simply don't see any other means of getting authors exposed to this material. Think of the problem in terms of a craft—a traditional craft. Virtually all instruction and assistance available is in terms of applying the finish, or creating rococo carvings, or perhaps planning joinery. These are, indeed, important skills. But nobody, least of all the writing workshops and established "writer's assistance" publishers, is teaching anything about selecting the right wood for the right job, or deciding whether the bookcase needs to be a built-in or stand-alone based on both the projected use and the architecture of its surroundings.

So we end up with craftspersons with incomplete skills. And it shows.

27 July 2000
Stop! Thief!

In the last 48 hours, two methods of stealing intellectual property have been squelched.

1. In RIAA v. Napster (D.C. Cal.), Judge Marilyn Hall Patel—one of the strongest proponents of free speech currently sitting on any federal court, and also one of the more even-tempered jurists—trashed Napster's "First Amendment" defense. She granted a preliminary injunction that will shut down Napster at 0800Z29Jul00 (that's 3AM Saturday to you civilians). She also, at least according to news reports, was uncharacteristically blunt with Napster's counsel, David Boies. That's right; it's the guy who ran the Microsoft trial for the government.

   Napster's justifications for its conduct are ludicrous. This is not the "everyone has a right to make cassettes" issue again; that is the very existence of MP3. No, Napster is performing a key criminal function: it's the "fence" for stolen property (unauthorized MP3s). Whether it profits from the actual exchanges is immaterial; it is knowingly (and some would argue willfully) facilitating those exchanges.

   Why does this matter to authors? I can't give specifics, but there's internet piracy out there facilitated by Certain Business Organizations.

2. The CARL UnCover suit has apparently been settled. The media is reporting $7.5 million to be paid to authors as back royalties, with royalties going forward. On 31st July, a website for claims is supposed to go up at UnCoverSettlement.com. Details there.

   Basically, this is an acquiescence to Tasini. It gives some hints on the way the judgment in Tasini may finally—probably three years or more from now—be structured. More importantly, though, it stands for the proposition that if the rights weren't explicitly transferred, a republisher has to pay for them.

That's all for today. Gotta get writing those books …

30 July 2000
I'll Take Pot Pourri for $100

This entry will be even less organized than usual; just a rambling list.

• Congratulations to Chiara and Sunish Shah, and welcome to the world to Kiran Sunish Shah. Chiara, do you have a projected Clarion session lined up for him yet? How about an email address? His own, private domain name?
• The Diana mentions a subject near and dear to my heart, or at least to my bookshelf: the Fourth Amendment. How ironic that my general-reader book on Weeks v. United States, 232 U.S. 383 (1914), will be hitting the shelves Tuesday. Weeks is the case that gave us the Exclusionary Rule, although it was not called such, that makes getting those search warrants necessary. As Diana describes, there's a big difference between personally knowing x and being able to prove x in court with admissible evidence.
• The end-of-month review will be late again. Get those asbestos mice ready, folks. I'm following the Washington DC rule: If you don't have anything nice to say—let's hear it!
• Mosey on over to Jackhammer in the next few weeks to see it transform into a different model for electronic magazines that seems more in tune with the way the Web and search engines operate. Just when you thought it was safe to go back on the internet … Jackhammer II.
• Napster got a short stay of execution injunction, but only long enough for a full motions panel to consider the motion for stay pending appeal. The stay was issued without consideration of RIAA's opposition to the stay or the record below (which, since it was a oral hearing, had not yet been prepared). The standard for such a stay in the Ninth Circuit is whether the motion, on its face, raises a substantial issue of law (not of fact) that requires examination by a full motions panel of three judges. Correction, 01 Aug 00: Although the initial announcement by the court was for stay pending consideration, the order handed down was for an expedited appeal. Briefs from both sides are due in a little over a month, with argument and an opinion to follow quickly. The two expedited appeals in which I've participated have both been completed in under four months; the average is around sixteen months.

  As a matter of law, Napster's position fails. A preliminary injunction is to issue only when three conditions are fulfilled:

  1. The party requesting the injunction (usually the plaintiff) demonstrates a substantial likelihood of success at trial; and
  2. The party requesting the injunction will suffer irreparable harm in the absence of the injunction; and
  3. The balance of the equities, including consideration of harm to the enjoined party that will flow from the injunction (which is not, however, enough to force a decision), is in favor of the injunction.

  Let's step through these, and you'll see why Napster's stay motion just gives them a little more breathing room to discuss potential settlements.

  1. Since we do not have the record itself, this is difficult to judge. However, stays are virtually never issued on the basis of this factor, since the standard of review is "clear error"—the civil equivalent of "beyond a reasonable doubt." The fact-finder's determinations get a lot (perhaps too much in the abstract sense, but I don't make the law) of deference from an appellate panel, particularly on a preliminary injunction.
  2. RIAA members will suffer undetectable, and irremediable, harm through continued theft of their intellectual property enabled by Napster. Chasing the individual pirates will be virtually impossible, and many (if not most) of the pirates are either ignorant people who don't know they're participating in theft or judgment-proof (i.e., have essentially no assets with which to pay damages and attorney's fees).
  3. Here is where the illusory nature of Napster's arguments becomes most apparent. Napster cannot demonstrate irreparable harm; presuming that it prevails at trial, it will obtain the bond posted by RIAA as compensation, and the nature of its business and the attendant publicity of this case will enable it to almost invisibly pick up where it left off, presumably with new versions of its software, too. (The injunction does not, and cannot, reach development of software not released to the public.) Napster also argues that Judge Patel's findings somehow improperly extend existing copyright law to new technologies, something that only Congress is supposed to do. I have not seen the briefs, and Napster's public statements are less than clear. In all probability, Napster is trying to rely on an aside in Sony Corp. v. Universal City Studios, et al., 464 U.S. 417 (1984), which is going to get it nowhere. Novel theories such as this—which has no support that I've been able to find other than that comment—are to be tested during the full trial and appeals process, not on a motion for stay.

31 July 2000
Strangeness

Dorothy Rothschild asks:

The strangest part: why am I more scared to move to [Seattle,] Washington than I was to move to Romania???

Because, my dear …

• Moving to Romania was supposed to be an adventure in the great unknown; moving from Chicago to another big city ("small town" my ass; two million residents in the metropolitan area is not a "small town") is not.
• Moving to Romania was closed-end, temporary, lots of stuff left in storage in Chicago, while moving to Seattle is fairly permanent.
• Before moving to Romania, she probably knew few native Romanians herself (even in Chicago); before moving to Seattle, she knows me, a born-and-bred native of the Pacific Northwet (no, that is not a typo). Bwahahahahahaha! Be afraid. Be very afraid. Count your fingers after shaking hands.

And now, in honor of our "friends" at Napster, et al., and relying on the critical commentary defense:

Music for Nothing

I want my MP3s
I want my MP3s
I want my MP3s

Now look at them yoyos
That's the way you do it
You hear my guitar on your MP3
That ain't stealin'?
That's the way you do it
Music for nothin' and the books for free
Now that ain't stealin'?
That's the way you do it
Lemme tell ya them guys ain't dumb
Maybe get a blister on your scroll-wheel finger
Maybe get papercuts on your thumb

They gotta work in Microsoft Windows
Custom software deliveries
They wanna upload your bestsellers
They wanna upload more MP3s

See the little hacker
With the internet startup
No buddy his parents don't care
That little hacker
Got his own jet airplane
That little hacker
He's a millionaire

They gotta work in Microsoft Windows
Custom software deliveries
They wanna upload your bestsellers
They wanna upload more MP3s

I shoulda learned to write some software
I gotta learn to like them bums
Look at that mama!
She got it stickin' in the scanner
Man she thinks she'll have some fun
And he's dialin',
What's that? Connection noises?
Bangin' on the keyboard like a chimpanzee
That ain't stealin'?
That's the way you do it
Music for nothin' and the books for free

They gotta work in Microsoft Windows
Custom software deliveries
They wanna upload your bestsellers
They wanna upload more MP3s

I want my MP3s
I want my MP3s
I want my MP3s

That ain't stealin'?
That's the way you do it
Music for nothin' and the books for free

I want my MP3s
I want my MP3s
I want my MP3s

What's really frightening is that it took me longer to find the lyric sheet than it did to toss that off. All right, all right, it was last month after back surgery, and somewhat Percodan-assisted.

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