Last Month (September)

01 October 2000
Heads I Win …

Sorry if I've been a bit scarce lately. A more-than-minor medical emergency in the family has monopolized my time, my energy, and (undoubtedly) my money over the last couple of weeks. I may remain somewhat scarce for some time yet. Now, where were we?

Back in our elementary school days, we were all introduced to a little joke: someone would state, before flipping a coin, "Heads I win, tails you lose." Most of the time, we understood this to be a joke. In the publishing industry, however, it is not a joke—it is a reality. A reality with a subtle bite to it: a choice of law clause substitutes a two-headed coin; an arbitration clause, particularly when it refers to commercial or illusory arbitration services, pays off the referee in advance, too.

This is an example of an adversarial, or "win-lose," contract negotiation. That this is not in the author's best interest goes without saying; it also harms the interests of the publisher. Objectionable clauses—whether rights grabs or more subtle problems—increase the time and expense required to negotiate a particular contract. (They also increase the hours billed by the attorney who writes the clauses.) This time, money, effort, and attention could be better expended on selecting and publishing good works. This style of negotiation also needlessly makes an adversarial relationship out of one that should be a partnership. A successful book, or article, or story, is a team effort. The author and the editor must work together to produce the best possible text. The editorial and the production departments must work together to make that text an attractive product. The remainder of the publishing company must work with the author and the editor to take that attractive product from a warehouse and put it into a consumer's hands—a consumer who is willing to purchase it.

There is no I in "team". There are, however, an M and an E. The Me Generation that runs American business today, and has dominated American academia—at least in the business schools—since the late 1970s sees that "me" all too readily. Win-win negotiation is simply not done over on this side of the Atlantic. (Neither do our European friends need to worry very much about domestic choice of law.) There is little chance of escaping unfair choice of law and arbitration clauses from major publishers at any time in the foreseeable future; that smaller publishers are engaging in the same tactics, often without any understanding of those tactics, forces every author to be on his or her figurative toes.

07 October 2000
Just Checking In

A very unpleasant week, due almost entirely to outside factors. Very little that anyone did on purpose. Actually, I take that back; I'd classify the insensitivity to the victim as feeling so purposeful that it makes little or no difference. Someone else has said it much better, though.

… the pain of hearing these words, in the wrong context or the wrong tone, is sharp; the memory of insensitivity and prejudice lasts for a long time. No doubt, too, allowing such language to go unchecked or uncorrected leads not only to personal pain, but contributes both directly and indirectly to discrimination in jobs, insurance, and society at large.
   On the other hand, the assumption that rigidly rejecting words and phrases that have existed for centuries will have much impace on public attitudes is rather dubious. It gives an illusion of easy answers to impossibly difficult situations and ignores the powerful role of wit and irony as positive agents of self-notion and social change. Clearly there is a need for freedom, diversity, wit, and directness of language …. The issue, of course, is one of context and emphasis.

—Kay Redfield Jamison, An Unquiet Mind

As Dr. Jamison notes, context is critical. (There is no content absent context, and vice versa.) Although her direct subject is the language used to describe mental illness, this passage applies with equal, if not greater, force to pejorative terms used to describe the Other in general—and the so-called "political correctness" movement. Language is a powerful tool; like any tool, it is neither inherently good nor inherently evil.

George Carlin's list of the seven words one can't say on radio, or in public, would no longer be filled with profanities. I've heard "shit," "piss," and "fuck" on the radio in the last month—during the day. (The oddball case about the "seven words," which went to the Supreme Court, concerned not the words themselves, but whether FCC regulations that prohibited their use during hours when children might hear them were valid.) Instead, the list would probably include "homo," "kike," and a variety of other epithets that are at least as objectionable. Of course, that means that some of the speeches of Martin Luther King, Jr., would be restricted, because such restrictions pay no attention whatsoever to context.

So, if you're clinically depressed, or bipolar, or accursed with schizophrenia (a genetic disorder), it's okay to be offended by being called a "loony," or a "nutcase," or a "whacko" (like clinically depressed people need an excuse to feel offended). But one can't remove those words in the same way as Oceania tried to impose Newspeak, for that way lies madness.

Probably several more days before I can even think of posting again. We'll probably have a return to legal topics, perhaps some more measured responses to the Napster argument (which concerned something completely different from what has been spun in the various media).

12 October 2000
Intellectual Bankruptcy

Back to publishing contracts (for the last time, this round). Here's some verbiage that is absolutely, positively meaningless. It's been lifted from a real, no-kidding book contract—negotiated by an agent who should have known better.

In the event of the bankruptcy, insolvency, liquidation, or other involuntary dissolution of the Publisher as an ongoing business entity, this Agreement shall terminate, and all rights granted to the Publisher shall revert to Author immediately without the necessity of any demand, notification, or other process of law.

This clause is absolutely meaningless. An "other involuntary termination" would include, for example, forfeiture of an enterprise under the Racketeer Influenced and Corrupt Organizations Act (RICO, 18 U.S.C. § 1961 et seq.), a possibility only if a corrupt organization or individual took control of a publishing company using the proceeds of crime, and proceeded to operate it in a corrupt manner. No snickers from the peanut gallery, please. "Liquidation" would be either a voluntary decision to close down operations or involuntary termination due to failure to meet standards for a corporation (such as paying the franchise tax); in either case, the Copyright Act forces reversion. (Recall that publishing contracts are with the publisher, not an individual in control of the publisher.)

"Bankruptcy" and "insolvency" mean the same thing in American law: invocation of the Bankruptcy Code (Title 11 of the United States Code). The Code makes the rights at issue property of the bankruptcy estate, regardless of any provision in the contract. Just ask any author who had a contract with Carroll Publishing.

Well, what about making the rights a secured interest? That survives under the Bankruptcy Code, doesn't it? Yes, a secured interest will (generally) survive bankruptcy and revert to the secured party. However, securing an intangible is, as one of my math professors remarked about cryptography, a nontrivial problem. First, a security statement must unambiguously identify the item being secured; that's tough with a manuscript that is still to go through the editorial process, and probably won't have the same title when it's published. Second, timing is a serious issue, due to the bankruptcy concepts of an "avoidable preference" and "fraudulent conveyance" (which seldom has much to do with fraud). Third, it's somewhat doubtful that a bankruptcy judge would accept the security interest as legitimate.

So, authors, that clause has no positive effect for anyone. If the publisher (print or electronic—nudge nudge, wink wink, say no more) goes under, the bankruptcy trustee will—and, in fact, must—continue to hold those valuable publishing rights as an asset of the publisher's bankruptcy estate, and sell them to the highest-bidding party.

Can you say "I'm screwed"? See? I knew you could.

17 October 2000
Anodes and Cathodes

Sometimes life sucks. Right now, life could suck the chrome off an immaculately restored 1957 Chevy's bumper. We can all rise above such little trifles, right? Maybe. But consider this journal a very rude gesture (more emphatic than The Bird) in the direction of the insurance industry and discrimination against nonphysical handicaps. What I'd really like to do is grab a few insurance adjusters and executives—you know, the ones who second-guess physician judgments without holding any medical degree themselves, even though the physician wants to invest a dollar now to save twenty later—and force them to actually sit through a week's worth of a physician, psychiatrist, clinical psychologist, or clinical social worker's working time.

Life will suck even more on 7th November. Even if you can't decide which rich white Southern male of questionable ethics will become President, get your ass out and vote. That's an order, maggots. I don't subscribe—not entirely, anyway—to the imperative "if you didn't vote, don't bitch about it." A substantial proportion of the proper voting populace is not, for whatever reason, able to vote—some due to registration problems (Illinois Nazis and their attempts to prevent presumably Other populations from registering to vote), others to inability to reach the polling place, still others due to inappropriate registration requirements (such as a fixed address, reaching the age of 18, etc.). Think for a moment about, say, people who were too young to vote in 1968, or 1980, or whenever, but were then stuck with a winner in whom they had no say for the forseeable future due to the magic of incumbency. I do think people in this situation should feel free to bitch about the government. I'm more skeptical of those who just couldn't be bothered to vote.

I understand despair, though, at the choices we're offered in this election. It's not just the inability to distinguish between the substantive positions of the Presidential candidates (although, given my personal knowledge of three of the four members of the major-party tickets, I will not be voting to put an elephant in the White House). There are even worse problems in the local area, like the candidate for [office deleted] who is a lawyer, but can't be bothered to follow legal ethics rules applicable to holders of political offices.

Power corrupts. Absolute power corrupts absolutely. Political campaigns… well, absolute corruption doesn't begin to describe them.

In any event, the next journal entry will be a week from now or so, due to a deadline. Hopefully, things will calm down enough by then to do this journaling more frequently.

25 October 2000
The Lesser Evil

I think I'll write in Cthulu for President. Why should I settle for the lesser evil?

I cannot in good conscience endorse any of the five FEC-qualified tickets (Dems, GOP, Green, Reform, and the other Reform). I can, however, by a process of elimination, determine the least evil. It's still pretty darned evil, but also distinctly the least.

• One "Reform" ticket is out on the basis of ill-informed racism. Pat Buchanan wants to stop immigration. Too bad his own ancestors weren't turned away at Ellis Island. I'm the semisheepish bearer of an Ellis Island surname in my "real" identity, and only a third-generation American.
• The other "Reform" ticket is out on the basis of complete inattention to the issues. Go ahead. Name one of their actual, confirmed positions.
• Dubya and Dick the Knife are out on personal knowledge of character and pride in racism. As a commanding officer, I occasionally remarked that "mercy" is a dictionary word between "maim" and "mutilate"—but not a word in my job description. It is, however, in the President's, as he is the clemency authority. And that's the least of their problems.
• The Greens are out because, while Nader's heart is in the right place on many issues, he's just vindictive enough to be dangerous, and many of his advisors are even more so. He takes things personally. That's not a good trait for this job.
• My greatest fear about the Dems is, frankly, the potential First Lady. Tipper doesn't get the First Amendment, the second-most-important part of the Constitution (the Sixth is the most important, because without legal counsel, it's impossible to assert most of the other rights). Gore is a corrupt Southern politician, which is hardly unique in this set of losers; however, he can at least spell his own last name two out of three times.

No matter who is elected, though, I fear for the future, because getting around the Republican whacko-wing-dominated Senate with competent (let alone thoughtful) judicial nominees is going to be next to impossible. The Bork pigeons are home to roost. The next President will appoint from two to four members of the Supreme Court, quite possibly including the Chief Justice. Then there are all of the other Federal judgeships at issue, several of which have been vacant for five years while the Senate applies various litmus tests.

Finally, none of the candidates, nor their top advisors, seems to have a clue about intellectual property. For some reason, as an author that's important to me.

I've finally got that novel as shaped up as it's going to get. The query package is ready, and it's going in the mail tomorrow. My chances of getting this piece published are, realistically, not good. Although I think it's a good book, its commercial potential is slim to none, standing alone, and there's no way it could be part of a coherent serial novel or series—dystopian fiction must have an endpoint or it's just nihilism.

Thus, it's time for me to start my own "novel dare." I'm daring myself to write one chapter a month until it's done. That's more ambitious than it sounds; I'm not a "chapter book" author. The 105,000-word dystopian novel, for example, has only four chapters. As a rule, I only break chapters for viewpoint shifts and such—not every 12-20 manuscript pages (the "recommended length" according to a couple of "Write Your Novel" books). So, if a publisher's guidelines ask for "three chapters," I could send in almost the entire book… but what that really means is "the first 50-60 pages."

I've pulled out Denbigh and done the basic calculations. I've got my two-page outline and four pages of numbers and source notes. So, it's time to see how the Three Laws apply to fantasy:

1. You can't win.
2. You can't break even, except at absolute zero.
3. You can't get to absolute zero.

Not hard science fiction, but hard fantasy. Or, at least, sarcastic hard fantasy.

28 October 2000
Don't Judge a Book by Its Cover

Here's a proposal for a blind test of the (almost complete absence of) integrity in the incestuous, yet backstabbing world of paid book reviewers. A serious speculative fiction publisher should invent a new imprint, print up some dummy galleys of a good near-future thriller, and send them off from a dummy address to the Usual Reviewing Suspects. It would be very interesting to see exactly what comes back, and compare the results to the "regular" reviews of the "regular" version of the book. I anticipate a significant difference.

The adage "don't judge a book by its cover" clearly does not apply to book reviewers. As a rule, serious reviewers won't read even a serious novel of speculative fiction (such as Mary Doria Russell's The Sparrow, Ursula K. Le Guin's The Left Hand of Darkness, or Octavia Butler's The Parable of the Talents), but they'll fall all over themselves to praise the "fresh approach" for less-worthy efforts (such as Michel Chabon's decent enough, if nonetheless overrated, The Amazing Adventures of Kavalier and Clay [review forthcoming]). If they do condescend to read books packaged as "genre" efforts, their condescension is all too obvious. So is their cluelessness, with their proclamations of something as a "completely new approach" that has been chewed over inside the ghetto walls for years, even decades.

Of course, it would be interesting to put the usual lurid speculative fiction cover on some slipstream works that are accepted as mainstream, or by accepted mainstream authors, and perform the same experiment. And this time, we can include some of our ghetto reviewers, who would in turn demonstrate their own cluelessness even more thoroughly than they do in the ghetto publications.

Here's an ironic marker: Almost all speculative fiction novels, and indeed almost all "genre" novels, have a highly naturalistic, full-bleed cover painting. Conversely, most "serious literary novels" have much more abstract covers—seldom with full-bleed cover paintings, and often with nothing representational on them at all. Rather an interesting role reversal that says something not too complimentary about the marketing dorks who insist upon the differences. Further, the speculative fiction novels that do seem to get some respect, even though they are clearly core speculative fiction, masquerade in mainstream cover designs. For example, Russell's The Sparrow features a composite cover of 14th-century paintings, arranged so that the top two-thirds appears abstract at the edges.

31 October 2000
Deadlines

Deadlines. What an appropriate topic for Halloween, eh?

Well, I have a deadline staring me in the face Friday—a book chapter on legal aspects of the use of performance-enhancing drugs in competitive athletics. I get to trash the IOC pretty severely, so it's somewhat fun. So, instead of working on the chapter—which is basically written, but needs a couple of points polished—I'm writing a journal entry.

But not a long one. After this chapter is done, I have several writing projects in the next month:

• The first draft of a YA/teen book on Jaffee v. Redmond, 518 U.S. 1, which determined that communications between a patient and a social worker for counseling purposes are privileged, and may not be entered at trial—sort of like the Fifth Amendment, but not quite as strong. It gets to the core of an issue that teens struggle with: "Who can I trust?" Needs to run 18-20,000 words.
• Chapter 1 of Cold Steel (see the entry for 25th October). As I've outlined it, it should run about 30,000 words.
• An appellate brief on a significant issue of concern to writers that I cannot discuss. It's limited to 14,000 words.
• Probably starting on another appellate brief on an even more significant issue of concern to writers, limited to 14,000 words.
• More journal entries than this month.

And, the way things look right now, I'll be drinking heavily late on 7th November. Gore would be a bad President for the country; Bush will be far, far worse. He'll drag us kicking and screaming into the 18th century. Next thing we know there'll be a land-ownership requirement for voting (read the original draft of the Constitution in Madison's record of the debates, or look at British practice into the 19th century). The biggest electoral reform that we could make would be to eliminate the electoral college or, failing that, require proportional allocation of electors. But such reforms won't happen, as they would require a constitutional amendment not in the best interests of California, Texas, Florida, New York, Illinois, Ohio, or Pennsylvania—which, together, control enough votes in the House to defeat a proposed amendment.

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