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02 February 2001
Multiple Choice

As those of my readers with exceptionally fine taste may be aware, this site includes an "affiliate bookstore." At the moment, that bookstore is through Amazon.com. At the moment.

Amazon recently decided that it knows what its affiliate members want to sell better than they do. Without any announcement, it changed its internal linking system to take people not to the page for specific recommended books, but to a page that lists "similar" books. This is, in technical terms, deceptive bullshit. Pardon me, but some of us give a flying fornication about what else we appear to be recommending; frankly, Mr. Bezos, it's my goddamned bookstore, and you're just the goddamned ordering agent. Fortunately, there's a workaround—this time. Instead of the traditional link (try it and see):
 
The Sparrow, coded as
http://www.amazon.com/exec/obidos/ASIN/0449912558/johnsavagenamech
 
one must add another parameter to the link, like this (try this one, too):
 
The Sparrow, coded as
http://www.amazon.com/exec/obidos/ASIN/0449912558/ref=ase_johnsavagenamech
(After a four-day delay, Amazon said to use
http://www.amazon.com/exec/obidos/ASIN/0449912558/ref=nosim/johnsavagenamech
but this does not consistently work. The first option is what comes up when clicking through from the "similar items" link.)

Amazon's "similar" recommendations are usually just inept and inapt for my eclectic, literary-oriented taste. However, for someone who is concentrating in, say, children's literature, there is a substantial risk that Amazon's predetermination of "what is similar" is not just actively misleading, but downright offensive. Thus, I have nearly 400 links to change on this website. Fortunately, I know how to grep (which has nothing to do with Heinlein's overblown Stranger in a Strange Land, a book so bad that I won't even provide a link).

So, then, why don't I just change allegiances? Largely because the alternatives aren't much better:

• Powell's, in Portland, does not do a good job with international shipments, and is in the midst of an entirely justified labor action by its employees. Sorry, management; they're right and you're wrong. I would not have chosen the particular union umbrella that they wish to use, but it was entirely within your power to prevent unionization by treating them better, both financially and otherwise.
• Barnes & Noble is much, much worse. Even if B&N didn't have a well-earned reputation for sloppy fulfillment—in accuracy, timeliness, and condition of shipments—B&N's relatively limited stock, poor terms offered to associates, and (most importantly) ongoing violations of the FTC Act through its deceptive management of iUniverse would keep me from voluntarily associating with B&N. (The fact that upper management compares unfavorably with a proctologist's working area doesn't help.)
• The other alternatives all fail to offer at least five books that I've already recommended on this site, and/or do not compensate me at all. (I'm not greedy, but it does take a little bit to keep this site going.)

In any event, this entire site will be moving before the end of the month. Don't worry, though; I'll maintain referral links for at least a couple of months before closing down Crosswinds (which appears to have decided that the annoying and malfunctioning popups will remain permanently). I'll become a subdomain through a professional connection. More to come….

04 February 2001
Counting on Fingers

My current profession is not widely known for its compassion, its honesty, or its integrity. Rather the opposite, in fact. Some of this reputation seems to come from the circumstances in which most people meet lawyers.

Perhaps an analogy will make this clearer. Unless the dentist in question is Oren Scrivellum, DDS, dentists do not enjoy inflicting pain. However, dentists have a reputation for nonetheless inflicting pain. Much of this reputation stems from a simple fact: Very few people seek a dentist's care unless already in pain. Unfortunately, a dentist's methods often involve inflicting short-term pain in the interest of reducing long-term pain. Although I've never had a cavity, and thus cannot speak to the pain of having a tooth drilled and filled, I've had enough dental surgery to have some conception.

Similarly, very few people seek a lawyer's counsel unless already in legal difficulties. (There are a few legal Bill Murrays out there, too, but we'll just ignore them for the moment.) One major difference between dentists and lawyers compounds this difficulty: A dentist's only active opposition is the physiological situation he finds. A lawyer, however, is usually working against at least one other lawyer. And thus the imprecation to count one's fingers after shaking hands with a lawyer.

On the other hand, the law seems to attract an unusually high proportion of sleazebags and assholes, who tend to give Vince Lombardi a bad name ("Winning is not the most important thing—it's the only thing"). Jaws (above) is one example. Interestingly, the sleazebags gravitate toward working for guilty, or at least culpable, clients. Not always, but often enough that one wonders if Oscar Wilde's original title was The Lawyer of Dorian Gray…

08 February 2001
The Letterbag

Two real winners here. These letters have been modified for the Web: They have been reformatted to fit your screen. It should become apparent pretty quickly just why they're in columns.
 

Date: Tue, 6 Feb 2001 17:03:16 -0800 Subject: An Open Letter to iUniverse.com Authors from Steven Riggio, Vice Chairman, Barnes & Noble, Inc.		Date: Tue, 6 Feb 2001
Dear iUniverse.com Authors:    As you may know, Barnes & Noble acquired a significant equity stake in iUniverse.com in an effort to open up the world of publishing by leveraging the reach and tremendous economies of the Internet. Since we’ve joined forces, we’ve provided the opportunity for thousands of authors to be published.    We are proud of our achievements and are dedicated to improving still further the publishing and distribution services we provide to you and other aspiring authors. But we also recognize our current limits and wish to be clear and realistic in setting expectations.    iUniverse.com is a remarkable advance in the democratization of publishing. Its digital publishing platform, combined with print-on-demand technology, offer efficiencies that the traditional publishing process cannot achieve. This new model for publishing is not meant to replace traditional publishing but to exist alongside it, serving authors whose works have been declared out of print and new writers who desire to self publish and market their own books.    Publishing with iUniverse.com does ensure that your book can be ordered through any Barnes & Noble store or from Barnes & Noble.com (www.bn.com), as well as through thousands of independent and most online booksellers. It does not, however, guarantee that your book is physically stocked at any Barnes & Noble store. With over one million titles already in print and another 50,000 or more published each year, we obviously cannot carry every book that is published. Indeed, the key to print-on-demand technology is that it enables us to keep a vast number of titles in print and available without physically stocking inventory.    Just as Barnes & Noble stores cannot possibly stock every new book published on its shelves, iUniverse and Barnes & Noble cannot guarantee authors an appearance at a B&N store. This reality also applies to authors from all publishers, large and small.    We do, however, recognize the vibrant new writing community that iUniverse.com is fostering and because of Barnes & Noble’s investment in the company we have jointly created a new program designed to showcase iUniverse.com authors. Participating Barnes & Noble stores will regularly host New Writer’s Nights events, where new and aspiring authors will have the chance to discuss their work with each other and the reading public. This program is now in its final stages of development, and you will be hearing from us within the next 30-45 days regarding program details and your opportunity to participate.    Clearly, we have a lot of work ahead of us, but we are very pleased at the strides we’ve already made in partnership with you. We thank you for choosing iUniverse.com as your publisher and will continue to do what we can to enhance the efficiency and effectiveness of our working relationship.    Best wishes for continued literary success, Steve Riggio Vice Chairman Barnes & Noble, Inc.		Barnes & Noble has been reviewing its business relationships with all print-on-demand publishers, and has made the following decisions. Barnes & Noble, Inc. will no longer stock titles from any print-on-demand publisher in any of its stores, and the stores have been asked not to schedule any events for any print-on-demand titles.    While you may have copies of your title which you may wish to offer to our stores for sale or for an event, please understand that our standard operating procedures in the stores do not permit stores to purchase books directly from authors. Therefore, we ask you not to approach the stores with copies of your books for direct sale to the store.    The very nature of print-on-demand technology suggests that a title does not need to be kept in inventory by either the publisher or the reseller, but can be ordered upon request for fulfillment as needed. Print-on-demand titles will continue to be featured on the Barnes & Noble.com website, and available for customer orders in our stores. Please supply your publisher with any reviews your title receives so it can be relayed to Barnes & Noble.com (www.bn.com) and added to the presentation of your title on our website.

And here you thought that politicians had a monopoly on reneging on campaign promises! That first letter should be addressed "Dear Suckers," and definitively shows what I've been saying all along: iUniverse is nothing but a vanity publisher, without even the dubious satisfaction of seeing one's work on paper. The second letter just screams "breach of contract," regardless of any language in the iUniverse agreement to the contrary.

10 February 2001
Don't Judge a Book by Its Imprint

When I read this weekend's New York Times Book Review, I got a serious shock. Fortunately, my heart is one of the few fit organs in my body (salacious snickerers can go to hell), so I didn't keel over on the spot.

In the main section of the book review, a book got a full-length, respectful, perceptive review as a work of fiction. Yes, it does happen occasionally, despite the general decline in the quality of the reviews in the Sunday section. That was slightly surprising in itself, but no matter. The shock is that Jonathan Carroll's novel The Wooden Sea is from Tor. OK, that's not the real shock. Tor does publish some pretty good books, even if it is also the publisher of R____t J____n's insults to dead trees. The real shock is that the review (free registration required) does not condescend to "mere fantasy" or "mere science fiction." In fact, the review does not note that Tor—an imprint unlikely to be familiar to the artsy-fartsy literary crowd that, with its dubious intellectual honesty and pretentious haberdashery, seems to dominate the "respectable" publishing world—is a speculative fiction imprint. Mr. Cheuse doesn't even mention the terms "genre" (that misused word again!), or "science fiction," or "fantasy," until the last paragraph, and then only in noting that the book does not comfortably fit within those categories.

Carroll's book was judged for its inherent worth. That's all too rare these days, except among two or three regular reviewers whose work seldom appears in the weekend Book Review. Mutter what you will about Michiko Kakutani's ire, it's usually justified, and it's based on shortcomings within the works themselves. I don't always agree with her opinions, but she's right often enough that I can respect her reviews.

Here's hoping for a surge in sales for Carroll's daring work. Carroll has always been on the edge of speculative fiction, because he cares more about what the work requires than about how to market it. Maybe—not bloody likely, but maybe—this will lead to another review in the main section of a good book from a category publisher this year. And maybe three or four next year (ok, we both know that that's not going to happen).

12 February 2001
Die, Napster, Die!

The Ninth Circuit issued its long-awaited opinion in RIAA v. Napster today. Although Napster will try to spin the decision to emphasize the portions that the Court of Appeals sent back to the District Court, on balance this opinion is a deathblow to Napster. And rightfully so.

The Ninth Circuit proceeded in detailed, direct fashion to trash all of the substantive arguments raised by Napster's counsel, David Boies (he who prosecuted Microsoft, and has a pretty poor record of getting reversed on appeal). On the evidence presented, Napster:

• Knew, both actually and constructively, that its service was overwhelmingly used to violate copyrights
• Was a contributory infringer of copyrights
• Was a vicarious infringer of copyrights
• Did not have a fair use defense to the accusations of infringement
• Did not have a First Amendment defense to the accusations of infringement
• Did not have the right to force a retroactive licensing scheme

Napster's only "victory" was that the Ninth Circuit found that the injunction's scope was too broad, because on the facts presented the plaintiffs have some responsibility to police their copyrights. However, this is a point of civil procedure, because the injuction was a preliminary injunction. By definition, a preliminary injunction is held on an incomplete record, before trial. A final injunction would not have the same problems procedurally as would a preliminary injunction. Specifically, it's a lot harder to argue that a final injunction was too broad, against the trial record and the findings of fact, than that a preliminary injunction was too broad. Further, the actual remand did not deny any injunction against Napster's violations at all; it only said that complete shutdown was too broad.

Issue letters of marque and reprisal immediately to all privateers! Sink the pirates! Argggh!

This is not, of course, over. I expect an appeal to the Supreme Court, which (due to the procedure, again), will delay things at least until October 1, 2001, when the Court would return from its summer recess—and longer if the Court decides to take the case.

16 February 2001
Run Screaming Into the Night

Based on what I have seen thus far, electronic publishing must appear to be a small rural community greatly in need of musical instruments. The many members of the class of '05 have descended upon this isolated town, clearly hoping to make their fortunes. Many, if not most, of these pseudopublishers use the "Think" Method for selecting manuscripts—and, for that matter, artwork—for publication. Rather than paying attention to the 76 trombones announcing of the big parade of publishing opportunities, writers should keep in mind the most important instruction provided to any great con artist:

"You've got to know the territory!"

This is the single piece of knowledge least available to inexperienced writers. Even if the available self-help materials were, in fact, helpful—and, as I have implied on many previous occasions, that it is far from the case—inexperienced writers have no real method of determining the veracity and soundness of the advice offered to them. Or, in the worst case, terms imposed upon them.

Sometimes con artists lie.

I cannot (yet) prove that the following statement made by a "new" market for fiction and nonfiction material meets the technical definition of "lie:" that it was knowingly false and made for the purpose of deceiving the listener. Nonetheless, the statement at best reflects an unprofessional attitude and sheer laziness in fact-checking. From this "publisher's" online FAQ:

Q: Why aren't you using the SFWA contract?
A: We have contacted SFWA several times and have attempted to obtain a sample of their contract from various members of SFWA without success. Therefore, we generated our own contract, which we will continue to use.

I had to read this statement several times to be certain that it said what I thought it did. SFWA has posted its model contracts for several years on its website (http://www.sfwa.org), along with disclaimers indicating that the model contracts are intended only for informational purposes. They are not intended to serve as fill-in-the-blanks forms for authors, agents, or publishers. (Any moron who would use a book contract that refers to "Rhodesian rights" deserves exactly what he or she will get.) All SFWA officials are, to my knowledge, aware of the limitations of the model contracts, and certainly aware of where to find them.

It should come as no surprise that the contract actually imposed by this publisher is remarkably author-hostile. For example, the contract requires authors to pay the sum of $25 or the actual processing costs for replacing lost checks. The FAQ explains that this is because the publisher believes, in essence, that authors as a group are dishonest and will claim to have lost checks when they have in fact received them, cashed them, and decided that they wanted more money than they had gotten. (At least the required payment is down from $75, as in an earlier draft.)

Another irony involves the dispute resolution mechanisms specified in the contract. The FAQ goes to great lengths in describing the costs and involvement of attorneys in drafting the contract. And yet, in that contract, one finds the following clause:

The laws of the Commonwealth of Pennsylvania shall govern the validity and construction of this agreement, without regard to the principles of conflict of laws. Jurisdiction of litigation of any dispute, controversy or claim arising out of or in connection with this agreement, shall be only in a federal or state court having subject matter jurisdiction located in Montgomery County, Pennsylvania. No provision of this Agreement shall be construed against any party on the basis of that party's being the drafter. Each party to this agreement waives its or his right to a jury trial with respect to any action, suit or counterclaim brought under or in connection with this agreement.

This clause was clearly lifted verbatim from another contract, which most probably concerned interstate shipment of tangible goods. No licensed attorney would use the phrase "subject matter jurisdiction located in Montgomery County, Pennsylvania." A court's location governs its personal jurisdiction, not its subject matter jurisdiction. Even if one takes the unnatural reading as the intended one—a court located in Montgomery County that also has by its own nature subject matter jurisdiction over the action—the phrase is completely redundant. A court that does not have subject matter jurisdiction can't hear the action at all. Also, the attempt to eliminate construal against the drafter fails under Pennsylvania law.

That this "market" is merely an adjunct to a porn site should, I suppose, have served as adequate warning in and of itself.

22 February 2001
Look for the Union Label…

Norman Spinrad, in his recent (annual) announcement that he's willing to be drafted as President of SFWA, explicitly mentioned that he's willing to help SFWA become a full-fledged union. If, of course, all three members who actually pay attention to anything the Board is doing before publicity of a catfight… well, in recent years, that's constant, but you know what I mean. Anyway, if the membership approves, he's willing to use "family connections" (his term, not mine) to get SFWA organized under the AFL-CIO.

I can only think of about 57 things wrong with that particular affiliation. In no particular order, here are a few:

• "Family" connections is still about right. Although organized labor is no longer completely controlled by organized crime (which, ironically enough, is usually devoted to the concept of preventing the need for an honest day's work by any of its members), it's still infected by it, both directly and indirectly. In the dictionary under "democratic election," it says "don't see 'union'."
• In general, the AFL-CIO is about the last way for a group of alleged professionals to get organized to protect their interests. Every single element of the AFL-CIO that purports to deal with professionals is, at best, a complete disaster, and usually far worse. (Unless, of course, SFWA is prepared to admit that its membership is more a group of craftsmen than of professionals. Nothing necessarily wrong with that; they're just not the same thing.)
• Most importantly, it would involve getting in bed with Jonathan Tasini. Tasini and his lawyer are doing their best to lose a case that should be a slam-dunk winner with their shortsightedness, egotism, and sheer obduracy, at least on the basis of the first third of their brief. Tasini is also the dictator president-for-life "elected" leader of the National Writers' Union. If SFWA was to organize, how long do you think it would take the much-larger NWU to absorb it?

When I said "union" last month, I didn't mean joining up with a bunch of losers constantly under (justifiable) federal investigation—when not under indictment. Further, it simply can't be done on a specialized basis. To be effective, any union would have to be both as pervasive as WGA(w) in its control of screenwriting and operating in a much more union-friendly environment than the publishing industry does today.

27 February 2001
A Delayed Continuation

posting delayed by back spasms

Last time, I mentioned some of the fifty-odd reasons that SFWA shouldn't consider unionizing under AFL-CIO auspices. I didn't mention the most compelling reason of all:

It can't.

This is the catch-22 of the Labor-Management Relations Act, or at least the 1976 revision: that the people who most desperately need to organize—freelancers—cannot do so. New unions must now include a majority of permanent employees (not necessarily of a single employer, but in a defined bargaining unit). Older organizations, including the NWU, have been left alone, but not necessarily grandfathered. That the Department of Labor has bigger fish to fry than an insignificant mob of disorderly freelance writers does not mean that the NWU necessarily is safe.

Even if it was a good idea, it's not possible. Unionization under the current LMRA is a mirage that will, at best, expend considerable time and effort that would be better spent on other organizational aspects, such as improved ties with other writers' organizations, better education of the membership on publisher shenanigans, and the "l" word. The stuff I do. Litigation.

Certain kinds of breaches of contract are, despite the protests of the insurance defense bar, eminently suitable for class certification. It might be very interesting to go through the class discovery process against one of the major media conglomerates, with a few forensic accountants in tow. Rule one of any investigation: There is always a paper trail; the trick is finding it.

Food for thought.

Keep in mind that the enemy is not the editors. It's not even the marketing dorks (for this purpose, anyway). It's the New York Stock Exchange. But that's for another time.

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