Surreality Check
A Savage Writer's Journal
September 2000
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29 August–04 September: at WorldCon

Last Month (August)

05 September 1999
Chicon 2k

Part I: The F%^*#$@()!*g Hyatt

I have seldom encountered as stupid an example of hotel design and function as the main con hotel, the Hyatt—which is no reflection at all upon the ConCom. The downtown Hyatt is one of the few Chicagoland (sounds like part of Disney World, doesn't it?) hotels that is centrally located around other hotels, has adequate (marginally) meeting space, and doesn't understand enough about fen to exclude them. But

  • The hotel registration desk is not at ground or taxi level, but on the second floor—forcing guests to either bagdrag up a single-wide escalator or find the partially obscured "luggage" elevator and get past Curious George the Monkey (who visually demands a tip for the privilege).
  • The hotel has 2500 rooms, party suites, etc., divided into two towers. As one might imagine, this would put a strain on any elevator system. To make things worse, though, the elevators don't go all the way down to the meeting rooms, which are below ground level. One must exit the elevators and get on to escalators (no straight shot, either; it's "around and down"), and to hell with the ADA. Did I mention that each tower is served by only 8 elevators, producing a wait of three to five minutes even when there's no line?
  • There is no ventilation control in individual rooms. There is minor temperature control, but surely someone thought that occasionally suites might be used for small receptions?
  • Security is laughable. The cardkey system for room doors is about three or four years out of date, and (foolishly) locks out multiple keys unless they are encoded within five minutes of each other, requiring a call to hotel security. (Not that defeating the lock takes more than 30 seconds or so.) This is not too useful when roommates often arrive from opposite coasts at different times. The con itself provided reasonably good security, given what it had to work with, but this was a bit ridiculous. The Fairmont and Swissotel are much better about this, but also much smaller and thus unsuitable as con headquarters.
  • Despite the presence of a major convention with many events beginning at 0830 (gakk!), the hotel did not serve more than stale crescent rolls on Saturday and Sunday, thereby forfeiting $25k or more of business ($15 * 2 days * 5500 fen * 10% breakfast eaters). Did I mention that the prices are high enough to gag a llama? Or that the other downtown breakfast locations are both relatively distant and also closed on weekends?
  • The suites are too tiny to be called "suites," merely "large divided rooms;" 500 square feet would be better, but these barely topped 300.

On the other hand, the con's own facilities, particularly the Green Room, were efficient, friendly, well-run (with the exception of the Con Suite, which was not the con's fault), and easy to find. There could have been more ice water in panel rooms, but that's a minor detail.

Advice to future WorldCon bids in Chicago: Don't use the downtown Hyatt, which will be even more tatty by the next time around.


II: Scam, Scam, Scam, Scam

My first panel was the Literary Scams Panel, which included the following luminaries:

  • The lovely and talented Brenda Clough, SFWA Scambuster and experienced author;
  • The charming, witty, and thoroughly ruthless M. Christine Valada, SFWA's General Counsel;
  • The lovely and talented highly esteemed Kent Brewster, Nebula-nominated author and multiple-Hugo-nominated (aside: but for unethical manipulation of magazine circulation figures that makes categorization meaningless, a probable winner) publisher of Speculations, the only writing-advice periodical worth reading;
  • HRH Don the First Maass, President of the Association of Authors' Representatives (the agents' trade association);
  • Ashley Grayson, President of the Ashley Grayson Literary Agency and a highly respected (and rationally aggressive) agent for both literary and dramatic properties;
  • Gordon Van Gelder, Fastest Pen in the East, Editor of the Magazine of Fantasy and Science Fiction and a book editor at St. Martin's Press;
  • "Jaws," the moderator, an intellectual property/publishing law, complex litigation, and appellate practice attorney with a remarkable resemblance to your less-than-humble journalist.

We were civil. We were not very nice. Remember:

Money flows toward the author

Cynthia Sterling, I hereby throw down the gauntlet to you. Go ahead. Sue me for defamation in a court with personal jurisdiction. Just remember, though, that I'll get to take discovery on your business practices and finances to both demonstrate that you cannot make a good-faith claim of untruthfulness and your reputation.

Go ahead. Make my day.

Don' throw me in that there courtroom, Bre'r Fox!


III: The Escape of the Human Sacrifice

On Saturday morning, I fully expected blood on the floor during the Copyright and the Internet panel. It wasn't going to be mine. Unfortunately, the prospective victim cowardly left early to go guide an art-show tour. So, instead, the remaining panelist, the moderator, and I spent the next forty minutes repairing the damage said idiot inflicted.

Strong, strong suggestion to all convention programming chairs, particularly for WorldCon, NASFIC, WFA, and other major events: Every panel that potentially touches on legal issues should include at least one licensed attorney who practices in that area of the law. If that is not possible, at least have the con's attorney review full curriculum vitae and preferably writings for all panelists on such panels. That would have excluded this particular panelist, and enabled us to possibly move forward on the issue for the full 75 minutes instead of just the last 20. Specific examples of said panelist's affirmative misstatements of law and fact:

  • "You get a copyright by sending a copy of your work to the Copyright Office." Wrong since 1978. Under the Copyright Act of 1976, a work is protected by copyright from the moment of fixation (final creation). Registration is required only to file suit, not to either own the copyright or protect the work short of litigation (such as sending cease-and-desist letters).
  • "You can't put your fan name on a work if you want it copyrighted." Wrong since 1909. Under even the 1909 Act, one can use a pseudonym, established or otherwise, on a work without any detriment to its copyright protection whatsoever. The Form TX that one now uses for registration (and its predecessors back to 1946, which is as far back as I'm willing to check unless paid to do so) even has specific blocks for pseudonyms. Although silly names like "Princess Mushroom Cloud" aren't professional, that's not relevant to copyright. (For example, every single journal entry, book review, etc. on this site is protected by copyright, even though this is a pseudonym.) Whether particular cirumstances make a particular marking adviseable is a matter of evidence, not of copyright, and is also a matter for an attorney's advice.
  • "If you don't mark 'Copyright [year] Realname' on the work, you'll lose your copyright." Wrong since 1988. While marking is often adviseable, it's not required; this, again, is a matter for advice of counsel.
  • [by implication] "The rules are the same for all kinds of materials." Wrong since 1702. Textual, visual, and audio materials have been treated differently for marking, for protection terms, for droit morale, and for many other copyright purposes since the first copyright statute, and clearly so since the Statute of Anne.

Oh, I give up. That's the first two minutes of her presentation. If the moderator, the remaining panelist, and I had not known that she would be leaving early, I would not have let her get the first incorrect statement out of her mouth without immediately stepping on her neck. By remaining civil—very firm, but civil—I hope we let the audience, the people who really needed to learn from the panel, learn the material without worrying about the bloodstains all over their clothes. At least I had had the foresight to sharpen the sacrificial knife and dragoon a couple of chalice-holders to prevent carpet stains.


IV: Wild Donkey Sex and Other Party Animals

What would a WorldCon report be without a discussion of parties? Well, aside from rather incomplete and deceptive, pretty short. I'm afraid that my reputation may never equal that of the highly esteemed exemplar of Dirty Old Manhood, Gardner Dozois—but not for lack of natural aptitude. A few random thoughts (and considering my average blood alcohol level after 6PM at the con, "random" is about all you're going to get):

  • James Hartley owes me two-and-a-half hours of my life. Next time he's in the US, he'd bloody well better bring his own solicitor, because I intend to get it back. As a result of this temporal displacement, though, all future space navies must include a new crew member: "Midshipman's Bitch Ho".
  • If you're going to wear a sticker on your name badge that says "Brazen Hussy Blimp Pilot," gorgeous, don't go into the SFWA Suite when Gardner is there. Sample conversation (reconstructed from a haze resulting partly from fatigue and mostly from Berghoff Dark):

    John Savage (noticing name tag): I'd like a demonstration, please.
    Brazen Hussy (somewhat confused): I don't have the blimp handy. I need the blimp.
    JS (leering): I meant the "Brazen Hussy" part.
    BH (blushing very prettily): I, umm
    Gardner Dozois: Yes, let's see that.
    BH (blushing yet more): But that's not what it means!
    JS: Only write what you mean.
    GD: [incredibly rude comment]
    Conversation degenerates from here.

  • It doesn't take alcohol to make lovely young ladies like Tamela Viglione, Lori White, Brazen Hussy, and too many others to count look maahvelous. This con was a dirty old man's paradise—one of the reasons that I enjoyed it so much.
  • In Warren Zevon's words, Bob Eggleton's "hair was perfect." But not the longest. Although I didn't get to ask Bob, Warren Lapine admitted to a teenaged appreciation of Kiss, and looks as though a little makeup would put him right alongside Gene Simmons. And I don't know who the gorgeous redhead with butt-length hair was, but if you're reading, you're welcome over here.
  • Expatriate Aussies don't even like Foster's. Which is not to say that they don't drink like fish.
  • Plastic cocktail forks—you know, those little things in the boxes that come in red, white, blue, and other fun colors—make excellent nipple clips, according to Someone Who'd Know. However, demonstrations are right out, as the color of the "clips" might clash, according to Someone Who Was There.
  • Piece of advice (which I always follow): Don't hit on married people. I watched one idiot do so and get "discouraged" by the spouse of the hittee when she noticed.

10 September 2000
Post-Convention Hysteria

I wrote almost all of the foregoing 'con report on the train back down from Chicago. I had an extra hour to do it, too, which is particularly annoying for a 2-hour journey. My dictionary defines "Amtrak" as "clueless"—although we sat on the tracks twice, nobody said a damned thing about either stop until we were almost ready to pull forward. Once was less than 300 meters from the Champaign station waiting 25 minutes for the northbound to come through; the southbound I was on would have cleared the station with a good 10 minutes to spare. Urghh. I did not have back spasms, because I could move around on the train. However, I was pretty sore (not in the right places, you filthy-minded little …) Tuesday.

But enough of this nonsense. I'm having an interesting time with a couple of cases I'm wrestling at the moment, which is why I've been somewhat absent over the last few days. Normally I'm just absent-minded. No, I take that back. I used to be, back in my misspent youth. And, of course, there's always Life. Yes, I do have something resembling one; however dissatisfying it may be, it's the only one I've got, so I've got to live it.

Speaking of interesting news, the U.S. government (specifically, the Department of Justice, the Copyright Office, and the Patent and Trademark Office) has weighed in on one aspect of the Napster appeal. Looking at their brief is quite instructive, and demonstrates why Napster is going to go down. What this really means, ultimately, is that if the Supreme Court grants certiorari after the appeal decision comes down, the Solicitor General will participate in the appeal (whether the parties like it or not).

The government brief focusses on one narrow aspect of the Napster controversy: § 1008. Napster claims that this section of the Copyright Code gives it a free ride—it cannot be sued for contributory or vicarious infringement. The government brief quite properly notes that the plain text of the statute denies this interpretation, that legislative history denies this interpretation, and that the policy decisions behind the exemption for manufacturers of digital media and devices absolutely exclude Napster from the section. The more interesting subtext of the brief, though, concerns Napster's general argument that the Copyright Act shouldn't be extended to new technologies by the Courts, but only by Congress. The brief points out, almost in passing, that Congress specifically considered future digital technologies during committee deliberations, and rejected the idea that merely creating a new technology would result in an exemption from copyright infringement suits (note that § 1008 only bars suit; it doesn't make the use noninfringing). Instead, the strict interpretation is in the opposite direction: that copyright protection must be assumed unless exempted. Food for thought for book pirates, too.

15 September 2000
… They Only Wish They Could

People don't die from seasickness very often—they only wish they could. Never having been seasick in my life, despite crewing some relatively small boats on Puget Sound in bad weather during my misspent youth, I wouldn't know. As of yesterday, though, when I had intended to put up an entry (I can't very well nag other NAW members if I'm not keeping up myself), I wish I could have died instead of suffering through post-'con crud.

Do you have any idea at all just how aggravating it is for a lawyer to lose his voice? Particularly with a client crisis, a couple of phone calls with the fedabodies (sort of like antibodies, but in the legal system, and equally capable of the occasional destruction of healthy tissue), etc.? Plus back stiffness leading to mild spasms, fever, and the other usual symptoms of influenza.

Dear Mr. Landshark:

Congratulations on developing your new resistance! Although it is no guarantee of immunity, your body has now developed antibodies to this particular strain of I. non carborundum. You will now be vulnerable to only 457 strains this season.

As always, we stand ready to confuse you further with meaningless questions and obfuscatory responses.

Sincerely,
x
The Rt. Hon. J. Kent, Chan.


There will be a Dumpster Diving entry in the next few days ("midmonth"), and several full reviews at the end of the month. In one of the full-length reviews, I will be taking serious issue with An Established Reviewer who completely blew it. Hint: Said Established Reviewer is a regular at Locus who will hopefully consider me an Esteemed Enemy (should the review cross the horizon) rather than merely contemptible.

So, ladies and germs, some homework before the next journal entry. Get a recent publication contract—there are plenty available on the web—and read it. This is a "get familiar with the contract" reading, not a "just what the hell did that mean?" reading.

19 September 2000
An Offer You Can Refuse

Starting today, a short treatment of choice of law, alternative dispute resolution, and why authors should care. We'll start with choice of law today. That might give you stragglers in the back of the room—yes, that does include you, Mr. Nazzario—a chance to get ready for the remainder of the lesson [to be delivered in the next couple of entries—ed.].

Mr. Karlin! Please explain what "choice of law" means.

Well, umm, I guess it's what it sounds like. I mean, sometimes a defendant and a plaintiff live in different places, and the law isn't always exactly the same.

You guess, Mr. Karlin. I didn't ask you to guess. Why wouldn't the plaintiff always get to choose which law applied by choosing where he files suit?

Umm, because you can only file suit in a court that has personal jurisdiction over the defendant, and that isn't always the plaintiff's first choice?

Mr. Karlin, I ask the questions; you give complete, concise answers. As this is not a class in civil procedure, but in contracts, someone will need to help Mr. Karlin. Mr. Cauley, why am I asking this question?

Because contracts sometimes [almost always in publishing contracts—ed.] include a clause in which the parties agree which jurisdiction's law will apply to interpreting the contract or resolving disputes.

Precisely. Miss Sondergard, why would a publisher want to choose Virginia or Maryland law, as opposed to that of any other state?

I don't exactly remember the name, but those are the two states that have passed the uniform act that covers computers and information. The one the Conference rejected for inclusion in the Uniform Commercial Code as Article 2B.

A judge will demand that you know the name and citation of the act, but that is in substance correct.

UCITA (the act Ms. Sondergard referred to) is evil. It is strongly favored by software publishers, because it makes shrinkwrap licenses completely enforceable and enshrines the assumption that all that is transferred is a "license." There are insidious provisions in UCITA, though, that could be greatly to an author's disadvantage, because by its terms UCITA applies to transfers of information and information technology.

Thus, if you see a choice of law pointing at Virginia or Maryland, object, or at least seek qualified counsel who can tell you what is really at risk.

To be continued …

22 September 2000
Short of Violence

I've never understood why arbitration and mediation are called "alternative dispute resolution." Courts are, themselves, an alternative means to resolve disputes—in modern civilization the last alternative to violence. But, anyway, more and more contracts these days, both inside and outside of publishing, are including arbitration clauses. The clauses always look innocuous; sometimes they actually are. The key questions one should ask before agreeing to the clauses are:

  1. Who arbitrates? This is a nontrivial question. Most arbitration systems are actually quite specialized; what the clause won't tell you is that most systems are not suitable for most purposes. For example, the International Chamber of Commerce uses exceptionally capable arbitrators and has an excellent record in appropriate hearings—which are always in Chicago, and are structured and intended for multimillion-dollar disputes over international movements of tangible goods. As a general rule, an author must be wary of an arbitration clause that either does not name the arbitration system or names a system other than the American Arbitration Association.
  2. Is it binding and mandatory? Unless the magic word "binding" is in the clause, an arbitral hearing can be for nought; a dissatisfied party will merely refuse to accept the result and go to court. If it's not two-way mandatory, that's even worse, because one side gets to pick and choose (and I wonder which side that will be?).
  3. What is the scope? This is perhaps the most deceptive and innocuous language in an arbitration clause. "Arising under" is not the same thing as either "related to" or "arising under or related to." An author should insist on "arising under," and consult counsel if the publisher refuses to budge. Why? Consider a contract with an option clause for a moment. Book A is moderately successful, and its contract contains both an option clause and an "arising under or related to" arbitration clause. Author then writes Book B, which is borderline for the option clause; let's say Book A was a quickie celebrity biography, while Book B is the first in a mammoth fantasy series. In the author's judgment, the publisher of Book A will not do justice to Book B, and it seems outside the option clause, so he puts it up for auction, which is successful. Publisher comes back and says "Wait just a moment, bud. I had the option. You owe me every dollar over what I would have paid as an advance. Oh, by the way, this is 'related to' our existing contract, since it comes from the option clause, so we'll arbitrate with no chance for discovery." No, I'm afraid this is not entirely hypothetical.
  4. Who pays? Again, a nontrivial question. If the clause is silent, as most are, each party bears its own costs—counsel, filing fees, etc. (Just as in a legal dispute, the person who represents him or herself in an arbitral hearing usually has a fool for a client.) The International Chamber of Commerce, for example, has filing fees (called something else, of course) of nearly $1,000. This is awfully steep for, say, a royalty dispute with a few thousand bucks at issue.

When used properly and in good faith, arbitration can indeed be an excellent means of resolving disputes over publishing contracts. However, one cannot assume that the editor who has become your best friend will be making decisions if there's a screwup in accounting three years from now; or that she will even be with the publisher; or, in the worst case, that the publisher hasn't been purchased by GrendelCorp, a giant international conglomerate that makes Genghis Khan look like a humanitarian.

To be continued …

26 September 2000
Late-Breaking News

The Supremes (what else should I call a song-and-dance group that's mostly guys in dresses?) have decided a couple of interesting things by motion today.

  1. Bill Gates got his wish from the Toothless Fairy. By an 8-1 vote, the Court decided that normal procedure—that is, intermediate appeal to the US Court of Appeals for the District of Columbia Circuit, instead of direct appeal to the Supreme Court—will apply to the Microsoft antitrust case. Frankly, this is the correct decision, in a strictly legal sense. Although the Court has occasionally taken antitrust matters on direct appeal, those have been matters involving complex questions of law. The Microsoft case, although complex, does not; at best, the complexity is in mixed questions of law and fact, and mostly in pure questions of fact. (That the judge outright missed two critical conclusions of law bodes well for the appeal in any event.) The Court is not there to deal with facts; it is there to deal with a sterile, pared-down, synthesized record and briefs on a few specific questions.
  2. The Court also took Martin v. PGA Tour, as it was essentially obligated to do. To refresh your memory, that case from California (and hence the Ninth Circuit) decided that, under the Americans With Disabilities Act, a golf course, even a competitive one, is a place of public accommodation subject to the ADA. Casey Martin, an undoubtedly skilled golfer with serious degenerative disease in his legs (he cannot walk more than a few yards without severe pain and risk of a fracture), is thus entitled to use a golf cart while on the course. The next day, the Seventh Circuit (based in Chicago) issued an opinion on the identical issue that went the opposite way. Removing all the hype about the traditions of golf ("traditions" that include, until recently, outright racial discrimination, which has merely gone underground), the question is simple: Is walking the course such an inherent part of the game that removing it for an otherwise qualified, but disabled in that aspect only, competitor "fundamentally changes" the nature of the game? I think the answer here is clearly "no." But then, I think that "golf" is a four-letter word, and that the constipated bigoted old white men in charge of the associations deserve to get smacked with a wet towel where it counts.

We'll return to the tutorial next entry.

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