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Surreality Check A Savage Writer's Journal | ||||||||||||||||||||||||||||||||||||||||||
01 March 2001 The only tenable option for organizing writers to create collective bargaining power seems to be affiliation with an existing, recognized union. The NWU is not an appropriate choice for fiction writers; even if my comments over the last couple of years haven't convinced you, keep in mind that the current administration of NWU is actively hostile to fiction writers. The Author's Guild is a club more than anything else, and has (if anything) less ability to act as a bargaining agent than does the NWU. PEN is useless, being embroiled in various members' posturing to show who is more Marxist than whom. (Outside the US, it's a little different, but not much.) That leaves only one existing potential ally. Ironically enough, it's also the organization with the greatest natural affinity with fictionwriters: WGA(w), the screenwriters' union. Which, according to news reports, is about to go on strike, having just broken off talks with the various producers. (By the way, I lost a bet with myself by one day; I predicted 28 February for breakdown. I guess I'll have to pay for a beverage of my choice.) But WGA(w) is untenable, too, for another reason: It lives in a regulated field. Print authorship doesn't. For example, screenwriting agents must abide by California law concerning handling of client funds, registration, commissions, fees, etc. No such luck for print authors. Unless, of course, we start by demanding some minimal regulations. Such as my pet peeve: licensing and registration of literary agents. The most powerful reason to require licensing and registration of literary agents becomes clear when one compares literary agents to my profession. Literary agents are perilously close to practicing law without a license. Here's a representative state provision that defines the practice of law: [T]he "practice of law" means the preparation of a pleading or other document incident to an action or special proceeding or the management of the action or proceeding on behalf of a client before a judge in court as well as a service rendered out of court, including the giving of advice or the rendering of any service requiring the use of legal skill or knowledge, such as preparing a will, contract, or other instrument, the legal effect of which under the facts and conclusions involved must be carefully determined.
—Texas Govt. Code § 81.101(a) Admittedly, Texas is more aggressive in enforcing this than most states, but the definitions are comparable nationwide. If you have ever seen a publishing contract put out by a commercial publisher, you'll nod your head here. It's all well and good for an agent to do an excellent job negotiating with the editor. That's something that agents can offer that lawyers, who as a rule are actually lousy negotiators (unless one views negotiation as a win-lose process), simply cannot. Too often, however, any good achieved in the negotiation is given back in the contract language. Although there's some fairly standard language for many potential contract terms, the interaction among those terms is far from standard. I'm not suggesting that all agents be lawyers; that would be perhaps worse than the status quo, although for different reasons. Instead, I suggest mandatory prelicensing classroom work:
torts (3) (vicarious liability, defamation, privacy) That's about one semester of law school (in law school, although the work is at the graduate level, one is expected to have as many classroom contact hours as a college freshman). It won't get rid of all of the incompetents or crooks; three years can't do that for lawyers. It is, however, a start. Blackleg miner? Oh, yeah. The other reason unionization (at least in its traditional sense) won't work. On this side of the pond, we would call a "blackleg miner" a "scab." This trivial possibility is left as an exercise for the student. | ||||||||||||||||||||||||||||||||||||||||||
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04 March 2001 We're moving. Well, not right away, but in the next two weeks or so, you'll find us at http://savage.authorslawyer.com. With, I might add, no popups, no banners, no advertising at all. I've worked out an arrangement for hosting, and it's just a question of crunching through the technical details.
Side comment on internet piracy My position should be pretty damned obvious by
now. Frankly, I don't give a rat's ass or a tasty finger
Shut up, Jaws. Here—have a helpless swimmer.
[munch] how authors get compensated
for their efforts. I do, however, care that they do get satisfactorily compensated and
retain the control granted by their copyrights. If e-zines want to support themselves
with banner ads, that's their business. But the choice belongs to the author, not to
some snot-nosed kid who pirates the author's work and believes he's striking a blow
against the evil capitalists running the publishers.
(<SARCASM>Yeah, Gordon Van Gelder is a stinking rich capitalist
who must be destroyed. Riiiiight.</SARCASM>) The same goes for music.
If the band chooses to bypass music companies, that's fine with me—as long as
it's the band's choice, and the band gets compensated.
I'm sick and tired of the assertion that it's "good publicity" to put out the material
for people to sample for free. The key is that it's not anybody else's right to determine
how to publicize creative properties (leaving aside, for the moment, that posting an
entire work is not the same thing as an interview on Oprah, or a poster, or any
other publicity method). It's the author's. Or the band's.
Pirates who think books cost too much—they're right, but not for the reasons that they
think—should attack the publishers through writing polite, informative letters to their
Congresscreatures requesting antitrust investigations of the publishing industry. I've
already run the numbers based on SEC and ABA figures; there is a case to answer under the
Justice Department's guidelines, as the Herfindahl-Hirschman Index values for trade book
publishing and for trade book sales both exceed 2100 at the corporate level. More on why
at some later time.
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06 March 2001 The new Napster injunction came down today, and it will no doubt be appealed—because it is not what the media says it is, but instead is Napster's death knell. The f&*()&!%^^(%!g reporters didn't read the f&*()&!%^^(%!g order before they announced their extremely stupid interpretations that Napster is basically untouched. Here are the critical passages:
4. The Ninth Circuit held that the burden of ensuring that no copying, downloading,
uploading, transmitting or distributing of plaintiffs' copyrighted works occurs on
the system is shared between the parties…. [I]t
would be difficult for plaintiffs to identify all infringing files on the Napster system
given the transitory nature of its operation.2 The court anticipates that it may
be easier for Napster to search the files available on its system at any particular
time against lists of copyrighted recordings provided by plaintiffs. The court deems
that the results of such a search provide Napster with "reasonable knowledge of
specific infringing files" as required by the Ninth Circuit.
A&M Records, Inc., et al. v. Napster, Inc.,
No. C 99-05183 MHP (N.D. Cal.) What this means is that Napster can't hide behind users modifying file names to evade detection. This is important for authors, too. Judge Patel properly notes that what matters is the fact of infringement, not the label attached to the infringing material. She also quite properly shared the burden between the plaintiffs and Napster, as required by the Ninth Circuit's opinion. It's not reasonable to expect a service provider (ISP, indexing service, whatever) to know everything that's in copyright.† Once the service provider has been notified of the substance of an infringement, however, it's perfectly reasonable to expect policing of attempts to evade getting caught by changing the label, either in a minor or major way. As an exercise for the student, please complete the following problems. Papers are due Friday.
«««««««« notes »»»»»»»»» † Conversely, it is not reasonable to allow service providers an "ostrich defense." Once notified that there is rampant piracy in a discrete subsection of the offered service, the service provider is in the position of a bartender who continues serving patrons who are already visibly drunk: by continuing to enable the misbehavior, the bartender/service provider is liable for the consequences. Bartenders have "dram shop" laws providing a moderate safe harbor; service providers have the DMCA. | ||||||||||||||||||||||||||||||||||||||||||
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10 March 2001
I have mainly two words for the harshly potty-trained children who seem to make up the main part of the inhabitants of slashdot: Bite me. It's one thing to have inane opinions, refuse to accept other viewpoints (especially when they refute yours), refuse to even read the opinions you're attacking, and even flood a respected forum for serious discussion with utter crap. It's quite another to engage in a denial-of-service attack on that forum, merely because the people who live there won't agree with your nihilistic, illogical, self-serving bullshit. I'd call your parentage into question—but it's clear that, like all other pond scum, you don't have any. You're communist preverts, in conspiracy with other communist preverts like yourselves to sap the purity of our precious bodily fluids. We must not have a mineshaft gap! Jaws here. I've just had to give John another dose of tranquilizers. I'm afraid I'll have to finish up today, as the language was about to become more appropriate to the flight line than to the phone line. John is referring to the recent problems over at The Rumor Mill, which we both highly recommend despite the problems slashdotters and their dubious allies have caused. What, exactly, set this off? The highly esteemed Kent Brewster posted Harlan Ellison's plea for support and rant concerning electronic piracy on the Rumor Mill.1 Slashdot somehow got ahold of the URL and spread it to its members; reading the actual page at slashdot, it seems fairly clear (although the original annotation had scrolled off by the time I got there) that the idiot who posted the item had not read it, and proclaimed that Harlan wanted to do evil things to every person who had ever read his work in a pirated edition and intended to close down the entire internet. That may be a slight exaggeration—but if it is, it isn't much, based on the tenor and contents of the vitriol that followed.2 Basically, what followed was the usual "information wants to be free" and "how dare you try to regulate our playground" bullshit—with an even lower level of intellectual honesty than those advocates usually display. Suffice it to say that We Are Not Amused. Dammit, the Rumor Mill is a place for serious discussion and advice on writing issues. A few ironies that have apparently escaped the children:
As John said in one of his responses, "Recess is over now, children." He's right. This attack had all of the subtle dynamics of kindergarten recess—but this time it was the kids in hornrimmed glasses acting the part of the bullies, trying to beat up the Bohemian artists.3 In closing, I can do little better than did Bill Shatner on SNL those many years ago: Get a life. «««««««« notes »»»»»»»»» 1. Although he's pissed off now, John isn't quite as hot under the collar as is Harlan, and would not have said the substance of what Harlan said in the same way. On the other hand, it's not John's stuff that's been ripped off. 2.
By now, observant readers familiar with this journal
might be wondering why there's no link to slashdot provided. John is still foaming at the
mouth, so I decided it would be best to not provide a link, thus hopefully fooling
the 'bots cruising the net that don't follow convention and index everything in sight,
despite <META> directives not to do so. By an extremely contrived coincidence,
slashdot is believed to operate such 'bots. In any event, here's a textual link you can cut
and paste into your browser for the main part of the children's
playground: slashdot.org 3. Admittedly, that's not completely fair. The point is that most of the viewpoint results from refusal to look beyond surface characteristics. John was himself a Bohemian artist in hornrimmed glasses, even in kindergarten. I wasn't, but the kind of schools I was concerned with were usually just between-swimmer snacks. | ||||||||||||||||||||||||||||||||||||||||||
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12 March 2001 Q: What's the missing link between Australopithecus and Homo erectus? Today's lesson, boys, girls, and hermaphrodites, Uh oh. When John uses that opening, I know we're in for another lecture. is on evolution, science, religion, schools, unenlightened self-interest, and politics as usual. Although that looks like a long list, it's actually quite short. The Kansas School Board reentered the twentieth century from its vacation to the fourteenth—I'm almost surprised that they didn't kick the Jews out of Kansas, through spurious accusations of child sacrifice, so as to reduce their interest payments—here in the early twenty-first century. That's right: evolution is now not just allowed, but required in Kansas public schools. That this vote was taken sixteen months after the vote to (essentially) exclude evolution demonstrates, perhaps more clearly than any scientific lecture could, that the issue is entirely one of religion and politics. The fundamentalists aren't going to go away, though. They have a new theory: so-called "Intelligent Design Theory." That the arguments for IDT rely upon the same false dichotomy as the arguments for "scientific creationism" should come as no surprise. The argument tactic works something like this:
There are three false dichotomies in this reasoning. The first, and most obvious, is the placement of IDT/SC as the only alternative to evolution. The second, more subtle, is the extreme burden of proof placed upon evolutionary theory—a burden that neither Darwin nor his more thoughtful successors believe evolution could meet, precisely because there are gaps in our knowledge (both historical/paleological and scientific). Notice also that IDT/SC is not subjected to similar inquiry! The third—the one that the IDT/SCists will never, never admit to—is the assumption that the evolutionary explanation necessarily precludes faith in a supreme being. There is a difference between faith and science. One motivates; the other explains. While there is considerable cross-influence between the two concepts—Copernicus created the concentric solar system to explain observations in a manner consistent with religious dogma—they have different foundations and different modes of reasoning. Faith concerns first (sometimes called final) cause; science concerns proximate cause. There remains a science fictional explanation that the IDT/SC people can accept even less than evolution: that Clarke's fictional model at the beginning of 2001 is correct. Maybe "creation" was the creation of self-awareness by a greater power (aliens, god(s), whatever). After all, the world does not exist to us until we become aware of it. This explanation frightens fundamentalists more than does evolution, because it implies that the greater power is not supreme—after all, it relied upon complex life (or, perhaps, less-complex life) that it found on Earth. Unfortunately, I can't become unaware of politics. The politics in question involve a particularly nasty bigotry that, ironically enough, depends upon a strong social Darwinism: because Western Christianity has become dominant, and a certain subsegment of white males of Northwest European extraction has attained power in this country, that subsegment must be inherently superior, and deserves the right to impose its beliefs on others. This is similar to livestock breeding, which uses superior studs to improve the quality of the herd. OK, it's only an analogy, and we all know that reasoning from analogy depends upon the accuracy of the analogy.3 I believe that the analogy is strengthened, not weakened, by the linkage among the IDT/SC, neofascist/reactionary fundamentalists, and their stated belief that evolution is a dangerous theory because it undermines "morality." Just how moral were, to name a few examples, the eviction of Native Americans, the Glorious Revolution, the first Thirty Years' War (1618–48), the repression of the Boxer Rebellion, the failure to intervene in Rwanda (as compared to the enthusiastic intervention in Bosnia), and the internment of Japanese-Americans during the second Thirty Years' War (1914–45)? Are we really, really sure that we want this ethic to attain complete dominance, such that it eliminates all opposition? (Methinks the theory of species diversity might answer that question.) I'm afraid that this is, indeed, the missing link. It's one that I'd just as soon deny, as (on one side of my family) some of my Prussian ancestors were probably involved in the first Thirty Years' War. But, if evolution "isn't allowed" to deny any of its problems, neither can we allow hypercritics of evolution and their not-so-hidden agendas to deny any of the problems in their own theories. «««««««« notes »»»»»»»»» 1. This particular criticism is especially inapt (and inept). Although the illustrations in the books are staged, and there was one major study that criticized the methodology of the original study in the 1950s that tested the anecdotal assertion, that same critical study also concluded that, despite the problems with prior "proof" based on the moths, dark moths actually did have a lower death rate due to bird predation in polluted areas than did lighter moths, and vice versa. This part of the study, of course, is seldom acknowledged by fundamentalists. 2. Throughout this journal entry, I'm using the term "evolution" as shorthand for "weakly social, strongly structural Darwinian natural selection." This theory holds that natural selection provides a satisfactory explanation for structural changes, but that natural selection is not the only force operating to produce social changes, and that all changes are measured over long periods (usually at least 10–20 generations). 2. Well, I know it. You probably know it, unless you're reading this journal for the purpose of finding some way to criticize it. Even Phillip Johnson—the Stanford law professor who, during the mid-1990s, was the SC movement's major public spokesman, despite having no scientific background—knows it. I doubt, however, that Mark Edwards—the director of the major institute pushing IDT—does, at least based on some of the solid waste he has spewed forth. | ||||||||||||||||||||||||||||||||||||||||||
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16 March 2001 This is going to be a fairly random entry. Although there is great disdain, and even active hostility, between academic-oriented/accepted fiction and commercial fiction, there's a great deal that the two areas can learn from each other. The Ivory Tower (where Rapunzel lives) represents both the future and the past of fiction; commercial fiction represents the present. Sabbaticals Every few years, university professors take sabbaticals. They pack up and go visit somewhere—sometimes for scholarly research, sometimes as a visiting professor. They don't micromanage the courses being taught in their absence, even if those courses cover identical subject-matter to that they would teach, but from a radically different viewpoint. A similar system would do the world of commercial fiction, and particularly the periodicals, a world of good. First, it would help prevent editor burnout to edit only ten issues a year, leaving one for a selected guest editor. That additional month can be used for decompression, or even reading the slush more carefully. The most important benefit, though, is that it would inevitably introduce some new voices to that particular market—especially if, give proper publicity, unsolicited mss can be directed specifically to the guest editor. Gordon Van Gelder is still too new at the helm of F&SF to have completely ossified. Shawna McCarthy (Realms of Fantasy) and Gardner Dozois (Asimov's), however, have been in charge for quite a bit longer, and the content of those two magazines is becoming more predictable every year. (That's not to say that it's bad content—only to say that it lacks a certain diversity.) Stan Schmidt, Ghod bless him, has been at Analog for the longest of the four major short-fiction markets. And it shows. Of the four markets, one finds the fewest truly new authors at Analog, and many of them have been mentored by current members of the self-labelled Analog Mafia. That's not healthy, not even for right-of-center nuts-and-bolts science fiction. Paying Forward Conversely, the concept of mentoring and paying forward is something that the academy desperately needs to adopt. After earning that bachelor's degree, master's degree, or doctorate, writers get no further support, except if the writer has built an unusually close personal bond with one (and, in all probability, no more than one) faculty member. That's as if Clarion went on for two years or more, and the students never had future contact with their instructors or each other. One of these two methods is a lot healthier, both artistically and psychologically, and it's not the academic one. Theory Matters Bouncing back to what the academy can teach, there are two essential characteristics of good fiction (commercial or otherwise) that can be taught essentially only in the academy: thematic construction and analysis, and subtextual construction and analysis. These are both long-building topics, because understanding them takes substantial self-reflection of a kind not available in the few teaching environments available in commercial fiction. Without exception, commercial fiction that lasts has substantial themes and subtle subtexts, but commercial fiction bungles one or both of those aspects far more often than Ted Sturgeon would have believed possible: of the commercial fiction I've read over the last more-years-than-I-care-to-admit, around 99.5% has earned a C- or lower on those aspects. Although some literary theory is admittedly created solely for the purpose of demonstrating the theorist's own cleverness (and thereby gaining tenure)—radical deconstructionists who have warped Derrida's tentative conclusions into nihilism come to mind—much of it, and particularly the very diversity of it, is valuable in analyzing and writing any kind of fiction (not just archly literary works). So Does Storytelling Conversely, literary fiction has completely lost sight of fiction's need for storytelling. This variety of "relevance" is at least as important as any connection between the work and the "real world" (which usually means, in academic circles, a political view consistent with that of the critic). Fiction is not just a means to disguise political or personal venom. While Voltaire, and Swift, and Orwell were undoubted masters of political satire, the undoubted failures (to name a few of the worst culprits that have somehow been adopted as "acceptable," Bunyan, Spenser, Leo Tolstoy, and Genet) so greatly outnumber the successes that those successes are notable for displaying only average to above-average storytelling skills. All of which leads back to an oft-misquoted epigram from 1984: Who controls the past controls the future; Food for thought, given the relationship between commercial fiction and the academy I posited in the opening paragraph. | ||||||||||||||||||||||||||||||||||||||||||
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20 March 2001 Here, Jaws, have another helpless swimmer. Munch munch munch… OK, he's busy. Well, boys and girls, let me tell you about some two-headed coins out there in journalismland. Before we start the story, we need to practice our word for today. It's a hard one, but I bet you can do it. Can you say "intellectually dishonest"? See? I knew you could. Yesterday's New York Times carried a very slanted, dishonest, scaremongering story concerning Tasini, which will be argued before the Supreme Court next Wednesday at 10AM. Given that the full caption of the case is Tasini, et al., v. New Yorks Times, Inc., et al., the article's pro-newspaper, anti-freelancer slant should come as no surprise. Although I think the publishers' position is wrong and, as a matter of law, indefensible, I expected better of the Times. Disappointed again. The article quotes a number of attorneys. None of them represent the authors. Can you say "presents only one side of the story"? I knew you could! Op-ed pieces need not be balanced, but this was presented as a "news" story. It should either have been balanced or labelled as op-ed. The potential consequences of a victory for either side are completely distorted. Those claiming that a victory for the authors would result in the destruction of the historical record get a lot more space, and their position is accepted with no skepticism at all. Conversely, those claiming that a victory for the publishers would result in the death of freelancers are essentially brushed off with the note that the NYT and its fellow publishers now routinely demand the rights in question from freelancers. (This is called an "admission against interest," but I digress. Surprised?) The "historical record" argument goes something like this: If the authors win, the publishers will be forced to withdraw their publications from public databases (leaving aside the question of how much content really comes from freelancers in the first place). However, the authors (with few exceptions, usually due to independent legal action that would require withdrawal of the publication in the first place) only want to get paid. Would that cause the collapse of Western civilization (as claimed by the publishers and a few of the misguided historians who don't know squat about publishing)? I think not. Leaving aside the complete ignorance of costs betrayed by the "historical record" argument, let's flip it on its head and see where that takes us. If the historical record is that important, historians and libraries should be exempt from ever paying for any publication, because imposing costs on scholars and repositories limits the access of both scholars and the public at large to information necessary for the preservation of cultural identity. Somehow, I doubt that the NYT is suddenly going to give complimentary subscriptions to every library and social science professor/scholar in the country. | ||||||||||||||||||||||||||||||||||||||||||
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24 March 2001 Just by coincidence—actually, there's no coincidence at all—the Eleventh Circuit just released its opinion in Greenberg v. National Geographic Society et al., No. 00-10510 (11th Cir., Mar. 22, 2001). This is essentially "Tasini for photographers," or at least it will be portrayed as such. I'm spending extra time on Tasini because oral argument is next Wednesday. If anything, the Eleventh Circuit's opinion is even more dismissive of the "revision" theory of electronic republication than was the Second Circuit. I've extracted some of the most important language in the opinion in the next few paragraphs. Footnotes have been omitted for clarity. Most of the discussion will be in the next entry, though, as I'm fighting a very tight deadline on another project right now.
[T]he Society dispatched a letter to each person who had contributed to the Magazine. This letter informed the contributors about the CNG product and stated the Society's position that it would not provide the contributors with any additional compensation for the digital republication and use of their works. Greenberg contends that he responded to this notice through counsel and objected to the Society's use of his photographs in the CNG, but he received no response from the Society.
* * * [S]section [201(c)] constitutes the sole basis and defense of the Society's use of Greenberg's copyrighted photographs. In all cases involving copyright law, we understand that any interpretation and application of the statutory law must be consistent with the copyright clause of the United States Constitution; specifically, the eighth clause of the eighth section of Article I. That clause is a limitation, as well as a grant, of the copyright power. The copyright clause, consisting of twenty-four words crafted by our founding fathers, is the Rosetta Stone for all statutory interpretation and analysis….
* * * We conclude that the unauthorized use of the Greenberg photographs in the CNG compiled and authored by the Society constitutes copyright infringement that is not excused by the privilege afforded the Society under § 201(c). We also find that the unauthorized use of Greenberg's diver photograph in the derivative and collective work, the Sequence, compiled by the Society, constitutes copyright infringement, and that the proffered de minimis use defense is without merit. Upon remand, the court below is directed to enter judgment on these copyright claims in favor of Greenberg. Counsel for the appellant should submit its documented claims for attorneys fees relative to this appeal to the district court for review and approval. We find the appellant to be the prevailing party on this appeal and, therefore, is entitled to an award of costs and attorneys fees. Upon remand, the district court should ascertain the amount of damages and attorneys fees that are due as well as any injunctive relief that may be appropriate. In assessing the appropriateness of injunctive relief, we urge the court to consider alternatives, such as mandatory license fees, in lieu of foreclosing the public's computer-aided access to this educational and entertaining work. This last paragraph completely refutes the historical record argument noted last time. The Copyright Act already delegates to the courts the power to fashion an appropriate injunction. The Eleventh Circuit emphasized that it remains concerned with the historical record, and the public's access thereto—but not at the expense of the authors' rights. | ||||||||||||||||||||||||||||||||||||||||||
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27 March 2001 Although the general analysis in Greenberg is, by itself, sufficient to refute any intellectually honest argument that publishers are merely "revising" existing works through electronic "reissues," there is a much more subtle point made early in the opinion that, if anyone had been paying attention, should have prevented the whole dispute in the first place: [T]he statute's language contrasts the contributor's "copyright" and "any rights under it" with the publisher's "privilege." This is an important distinction that militates in favor of narrowly construing the publisher's privilege when balancing it against the constitutionally-secured rights of the author/contributor. Other, far more illustrous commentators have discussed "privilege v. right" in exhaustive (and often exhausting) detail. It seems pretty obvious that a "right" should trump a "privilege." But why? Is there a more principled distinction? There is.
So, what are the rights at issue here? There are a number of issues that appear to be rights in conflict, but careful analysis shows that most of them are only privileges.
We'll just have to see. 1 I am perfectly aware of the irony that I'm citing Professor Tribe on this position, when he will be arguing for the publishers in Tasini tomorrow. 2 Richard Stallman, in his more excessive moments (which of late seems to be most of them), and the other idiots who state that the only intellectual property that matters is theirs, and that everyone else is restricted to only what they would ask for their own intellectual property, are hereby invited to eat my shorts. 3 …notwithstanding the practical realities that virtually all contracts are imposed by a party with substantially greater bargaining power upon the other party. To paraphrase Doctor Johnson, the freedom to choose not to contract is the freedom to choose not to eat. What this really implicates is translational friction, or the systemic cost of translating an economic good or service from one form (such as labor) to another (such as the automobile produced by application of union labor)—an issue studiously ignored by contemporary economists and business leaders because it is virtually impossible to quantify, and therefore must not be worthy of study. Rather like literature. Conversely, there is little, if any, translational friction in using the leverage created by an already-owned economic good or service, such as financial capital, to create more of the same economic good or service. In any event, a party with substantially greater bargaining power has the ability not just to force general terms upon the other party—a practice often restricted by noncontract law and competitors—but to force the other party to eat all of the translational friction, a practice that is completely ignored by the law and competitors. | ||||||||||||||||||||||||||||||||||||||||||
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29 March 2001 The oral argument in Tasini was yesterday. I am not pleased. As noted in the online American Lawyer, "If the quality of oral advocacy were the only criterion for victory, Harvard Law School professor Laurence Tribe would be the clear winner Wednesday on behalf of The New York Times [sic] and major publishers in a high-stakes copyright infringement dispute with free-lance writers." In-f*()^&($**!ing-excusable. Particularly when (as quoted in the same article) Charles Sims, a straight-shooter even though he usually works for the wrong side, averred that "Larry did a great job for the publishers, no matter which Larry [Tribe for the publishers, Gold for the plaintiff writers] you are talking about." And just why was Mr. Gold making this oral argument? He's a labor lawyer, dammit! Experience in front of the Court matters a whole helluva lot less than knowledge of one's own case—and Gold clearly had little. However, it appears that egos were on the line here, and that (according to rumor, anyway) the decision as to who was going to argue for the plaintiffs may have come down to a coin toss. If that is true, shame on you, Jon Tasini, NWU, and the other named plaintiffs. That is your decision, not that of the lawyers. The identity of the arguer is a strategic decision properly within the client's domain. See Mod. R. Prof. Cond. 1.2(a) and coordinate provisions in the ethics codes of every state. Once again, if the rumor is true. If it's not, it was merely another bad decision in this matter. At least, however, it appears that five justices were highly predisposed against the publishers' position, even after an oral argument that would have been adversely commented upon in many United States Courts of Appeal. See, e.g., Emery v. American General Finance, Inc. ("Emery II") (7th Cir. 1995), cert. denied ("We were not reassured when at the oral argument American General Finance's lawyer was unable to tell us what it cost Verna Emery to obtain the $200 through a refinancing compared to what it would have cost her had the company simply made her a separate loan for that amount"). We'll just have to wait. A decision will be issued by the end of June; given who the five justices were who appeared to be in the majority, according to observers, the decision could well be ready in mid-May. "He who divides a house against itself shall inherit the wind[bag]." It may be worth pondering the Biblical, the American history, and the literary contexts of this statement in conjunction with the way the Tasini matter has turned out. And remembering that John Scopes lost. | ||||||||||||||||||||||||||||||||||||||||||
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Jaws and I are both looking forward to this. 