Last Month (May)

02 June 2001
Anarchists of the World, Unite!

Just a few random musings on politics and current trends in speculative fiction. Very random, I'm afraid, as the muscle relaxants for my back are not entirely conducive to lucid thought.

I find the recent resurgance of pseudoArthurian fantasy somewhat amusing, and quite puzzling. It's amusing in the same way as the growth of the Society for Creative Anachronism, Renaissance fair(e)s, and even the popularity of truly serious "recreations" such as Williamsburg, Virginia. Even the most serious of the "recreations" rely extensively upon modern conveniences—the metals made using modern processes, the indoor plumbing, the refrigeration for all of those overpriced "authentic" tasty morsels.

What I find puzzling is the affinity of middle-class Americans for societies with rigid social classes dominated by aristocracies built upon some form of primogeniture. Actually, it might well be sheer laziness, for there is one thing about these aristocracies that does seem naturally attractive: the heroes and heroines never go hungry. Again. They're born to their stations in life. They have no worries about what to do before their various acts of preordained heroism (or, as the case may be, villainy—it takes both sides to make even the usual appalling excuses for plots of these works).

And it's the same story—over, and over, and over. It almost makes one believe that the idiots who claim that "there are only six plots" might have a point… for a moment, anyway. There are no crises of conscience; no conflicts between religious hierarchies, which always seem to get along just fine; no cowardice; no realization that the plot is so thin that even W might complain.

Arthurani ite domum

04 June 2001
Honesty | It's Such a Lonely Word

It's almost never heard…"^† And I thought I couldn't get any more disgusted with the entertainment and advertising cultures in this country. OK, "culture" may be too strong a word, as most 6oz yogurt containers have more culture than an entire advertising department. The "good blurbs for bad products" problem isn't going to go away; but did Sony really have to resort to The Reviewer Who Wasn't There?

Well, perhaps it did. But it's the industry's own damned fault. The industry could…

•  Have someone from outside the advertising department review stuff for accuracy, including checking credentials of everyone not known to that checker. This is somewhat difficult, however, because even when credentials check, and quotes are strictly accurate, it doesn't get to the core of the problem: that the entire marketing system is designed to sell sizzle, not steak. That's bad enough when there is a steak. Far too often, though, we're offered at best yesterday's ground meat, and more often an empty plate.

•  Reduce its reliance on soundbite blurbs that nobody believes anyway. This won't work all that well, either. Those of you with long memories will probably recall my previous rant on untruthful blurbs, or the discussion in context of a review. I've yet to see any controlled studies that demonstrate that the "soundbite" sales technique is any better than more narrative or creative methods with either (a) repeat customers, the lifeblood of most entertainment businesses, or (b) actual decisionmakers likely to buy a similar product in the first place.

•  Just concentrate on making better movies. This, however, would require paying a good (not friendly) writer to write a good (not market-happy) script, and spending more money on script and real (not People-favorite) actors than on special effects. That's about as likely as W tearfully admitting that his entire family has an alcohol problem, and probably not even that likely.

Not that any of this is going to happen, but I'd bet the second option gets tried for a few months until some bean counter decides that it's an expensive luxury. Let's see, now—$42,000 a year, including benefits, versus corporate credibility. Yup. The bean counters win.

In the end, this will be viewed askance by a number of executives. The honest ones will admit that they think it's a great idea, but that getting caught was a big problem. If, that is, there are any honest entertainment-industry executives any more.

«««««««« notes »»»»»»»»»

^†   No apologies to Billy Joel^®. That Mr. Joel is a Columbia-contracted recording artist, and that Columbia is owned by Sony, should give one pause.

08 June 2001
But He's a Professional!

What kind of professional rides a motorbike and wears a black leather jacket? Certainly not me. I don't ride motorcycles, having far too much respect for my own life and having spent too much time in ERs during my misspent youth, and my leather jacket is "bomber brown" (according to the label). I don't use nitrous oxide, either.

Unfortunately, I've had to spend much of this week dealing with a lawyer who makes me long for the dubious behavior of the ethically challenged lawyers I used to go up against—representatives of used car dealers, mortgage brokers, and collection agencies. In Chicago. One simply does not try to turn every conversation with a grieving parent while making funeral arrangements into an assertion of one's supposed rights in intellectual property that was created after the dissolution of the marriage. But I suppose I should expect that from family law practitioners, who generally are completely clueless about IP—even more so than most lawyers—and thrive on being assholes.

But I won't take it out on this turkey by making him a character in a work of fiction. For one thing, fiction has to be believable; nobody who's not a lawyer would believe it. For another, most of the legal profession would shrug its shoulders and say "so what?"

Most of the day was taken up with legal argy-bargy between counsel and the judge, almost all of it “in camera”, as they say. It might be possible to explain what the arguments were about, but as a new millennium begins, it becomes increasingly clear that what the legal profession needs is not explanation but a stick of dynamite up its obiter dicta….

It was announced that we were all to be sent away. Some sort of procedural cock-up had occurred. There would be a big delay. Lawyers sat there like so many ticking taxi-meters, clocking up the bucks.

Back in court I watched an attendant carry in a bundle of papers, plus an envelope, and present both to a bewigged lawyer. She opened the envelope and took a little peek. It contained a cheque. She slipped it quickly into her bag.

—Matthew Parris, "An Author Riveted by His Own Drama"

The Times (London), 31 May 2001

On to cheerier matters. In a manner of speaking.

I sympathize with Linda Dunn about a couple of things. Believe me, I know what it's like to be "below" the normal size range. (Do you have any concept of how hard it is to find men's dress shoes in less than size 8D—especially for high arches?) Mostly, though, I understand what it feels like to keep tearing more and more material out of a novel. I'm in the process of squishing two novels (already written) into one, because they're really different aspects of the same thing. In the process, the final work needs to shrink quite a bit. It's not just adding them together and checking for order and continuity. The total of 230,000 words is going to have to drop. By around half. But it needs to be the right 100,000 words that come out… grrrrr.

It's enough to make one wonder whether such a downer is even worth finishing. This will not be a cheery book when it's done. (Neither will it be the beginning of a long series, either, which is an even greater drag on its potential marketability.) I suspect it could take up to a year to get it ready for market. Or more, perhaps.

14 June 2001
It's the Context, Stupid

This month's Locus has an ad on the back cover that is quite possibly the most deceptive and egregious ad in the history of speculative fiction, including the ads for Battlefield Earth. It's from some of our old friends at iPublish.¹ We'll leave aside the contract that, in my judgment, is inconsistent with the Uniform Deceptive Acts and Practices Act (adopted in one form or another in virtually every state) and the Federal Trade Commission Act and concentrate just on the ad.

The ad shows a "mock" manuscript of Don Quixote, marked as if unread by some nameless commercial publisher.² Some edigeek has criticized the name as "Too difficult to pronounce." In no particular order, here are a few problems with the ad—and these are just the most obvious.

•  Is it just barely possible that people of Hispanic (or other non-Anglo-American) backgrounds are entitled to use of their own tongues, particularly in titles? To pick just a few random recent commercial publications that have "hard to pronounce" names, consider Shadow of the Hegemon, The Shadow of Ararat, Chocolat, Dune: House Atreides, Endymion—and these are just commercially published books I've reviewed elsewhere on the site. Then there are works like Herzog, Neuromancer, Doctor Zhivago. One must also recall the long tradition of naming a work after its main character (Daniel Deronda, Orlando Furioso and Inammorata, Tom Jones). It's not much of an exaggeration to call this one aspect of the ad racist. (Not to mention that, since author's titles get changed over 60% of the time even for those books accepted by commercial publishers, it's not really relevant.)³

•  The manuscript was not in a normal, professional format. That itself may have resulted in rejection. However, it's such an easy lesson to learn the "right way" to do things that this is actually a criticism of the author's professionalism. (That the format chosen is actually somewhat easier to read than the "standard," however, says something else about publishing. Something not very nice, whether it's commercial publishing or otherwise.)

•  Pardon me, but wasn't de Cervantes Saavedra's book published a few years before there was anything we would recognize as a commercial publisher? Oranges and apples are a difficult enough comparison, let alone oranges and orangutans.

•  The fatal irony, though, requires some knowledge of Don Quixote and its literary context—something that marketing dorks know nothing of anyway. The book is intensely satiric and parodic. Its target is a particularly excessive branch of series dreck that brings to mind the current fashion with pseudo-Arthuriana. Thus, iPublish is subtextually saying something like this: "A commercial publisher refused to publish this work that attacks the very basis of series-oriented books. But if you come to us, we'll do so, and add to the mass of long, involved, series-oriented books. And your book can get happily lost in among all of the other long, involved, series-oriented books that we do."

I'll stop there. I think I'm going to puke.

This publishing environment desperately needs a Don Quixote of its own, but for reasons entirely unrelated to those of iPublish. We need more and better selectivity, not less. Keep in mind that the publication of Don Quixote incited the end, within only a few years, of those long, involved, series-oriented books about mythical knights and their fantastic adventures. I don't think that would hurt in the least. True, there are many new and valuable voices out there who are shut out by the commercial publishing establishment. The knee-jerk "We'll make it possible to publish more dreck than ever!" is not the solution.

Publishers are, for the most part, profit-oriented. However, in this country at least, publishers have an additional, social duty imposed upon them by the First Amendment. The true literature of dissent—that which at the least upsets a common pattern, whether in subject (Naked Lunch), narrative method (Ulysses), style (Riddley Walker), or more fundamental issues—is the lifeblood of any society, and must be encouraged. But an unfiltered flood of dreck is just as effective at submerging such works as is the willful abrogation of publishers' collective duty to present a wide spectrum of viewpoints.

«««««««« notes »»»»»»»»»

1.  Yes, the absence of a hyperlink is purposeful. I will not be party to sending even one potential sucker—even a potential sucker educated by material that has appeared on this site—to these differently ethiced sleazebags.

2.  We'll leave aside the sheer hypocrisy of this assertion in light of the policy of the "commercial" publishing arm of iPublish's corporate parent (Warner Books) of doing precisely what was illustrated with unagented manuscripts, and usually even unagented queries. Although Warner is far from the most prestigious or best-paying publisher in the industry, it has a reputation for hostility to unagented authors and manuscripts second to none.

3.  Again, we'll leave aside the fact that the book is not formally titled Don Quixote—a substantially snappier title than The Ingenious Gentleman, Don Quixote de la Mancha.

20 June 2001
Calling All Vampires

Just when you thought it was safe to go back to the blood bank… It's bad enough that I don't normally cast a shadow, reflect in mirrors, or show up on film. (Although, contrary to common belief, it's only raw garlic that causes any trouble, and that's just because my stomach reacts poorly to it.) But the tooth is on the other mouth this time. Or is that the shoe on the other foot?

Word to the wise, and even to the foolish: If a doctor ever says "we're going to have to titrate you twice a week for a month to make sure your blood levels are ok while we're changing medications," think very seriously about getting a second opinion. What makes it even worse is that it's not even my blood they're drawing.

«««««««« notes »»»»»»»»»

There are times, though, that I'm really irritated that I'm a lawyer. Or, rather, that many other individuals are lawyers. It's not the number of lawyers. It's who they are.

Q. What do lawyers use for birth control?
A. Their personalities.

Three of Five was particularly difficult this week, as was Four of Five. And I didn't even have to be in the same room with either of them! Even second-hand, though, I'm exhausted from being on edge since early Monday morning, waiting for frantic phone calls from the midst of depositions. This is all part of the litigation process. It's not necessarily a pleasant one. But some commonfuckingcourtesy would be nice.

The real irony is that the district in which the case is being heard has separate rules on "civility" for counsel. The defense counsel who actually have an office in the district, however, act as if those rules are strictly for lesser beings—those who have not yet been assimilated.

24 June 2001
Monkey See…

My kids, fortunately (or, depending upon what they get into when they become teenagers, maybe not…) are not dummies. Although he hasn't seen the movie, and thinks that it looks pretty bad based on the advertisements, the younger one (eight) has figured things out pretty quickly: He says that the proper title is Atlantis: The Lost Merchandise.^†

Maybe he is just becoming cynical at an early age (I wonder where that might be coming from?). Maybe, though, there is something more insidious at work here. It's not the end of the world; it's merely some musing as to influences. What we all—and particularly children—see is a social system in which one becomes rich through the slickest advertising possible, regardless of the quality of the underlying material. Beer commercials and campaign ads usually lead to discussions around here that end up with someone ROFLing. As long as we're aware of it in the foreground, it's ok, right?

Aren't we really saying, though, that the way to get ahead is to lie the best and not get caught until it's too late? That thought, cynical as it may be, provides some very uncomfortable answers to questions about business and corporate ethics. A few examples:

•  The tobacco industry. Yeah, there's insufficient scientific evidence to believe that smoking causes cancer, even though the only scientists who would so state after the early 1960s were on the industry's payroll (directly or otherwise). Ironically, though, this made Ken Starr the best possible candidate to investigate Slick Willie, once one assumes that there was in fact a coverup. In private practice, Starr represented tobacco companies in antismoking litigation—which probably makes him overqualified to spot a coverup, since he knows what it looks like from the inside.

•  Random House. The firm's position in the current electronic rights litigation leaves much to be desired from an ethics points of view. Although I really feel uncomfortable supporting Rosetta Books for reasons unrelated to the rights at issue (the principal, Arthur Klebanoff, owns the Scott Meredith Agency—a fee-charging agency with little record of new sales in the last few years), the more discovery comes to light the clearer it is that Random House is engaging in nothing less than extortion. Its own conduct, its former executives, and its former editors have uniformly said that, during the relevant periods, its contract did not cover e-books. The only ones claiming otherwise are current employees, many of whom were not associated with Random House at the time the original contracts were signed. The definitional games remind me very much of the iPublish definition of "digital media"; I doubt that it's a coincidence.

•  The major "writers' magazines" (and their affiliated book-publishing arms). These yoyos imply that all one needs to do to be a successful writer is be persistent and follow certain magic formulae. Perhaps more importantly, there's a subtext that the only valid measurement of a work's worth is the amount of money that it brings in. Really, now. By that standard, Borges should be replaced in the literary curriculum by someone more relevant, such as Judith Krantz or Danielle Steel.

That's enough for now. Remember, though, that good fiction and storytelling are, at their core, the use of lies to tell the Truth. Which perhaps explains why so many outrageous things that "really happen" don't work in fiction, because by its very nature fiction requires more plausibility than life.

«««««««« notes »»»»»»»»»

^†   Well, he's right. It is a bad movie, with poor storytelling, overreliance on stereotypes as the source of characterization (even when supposedly making fun of stereotypes), and a really crummy soundtrack. Fortunately, I didn't have to pay to see it—a colleague in town reviews movies, and occasionally I tag along to do the MST3K thing (which actually works even better with mainstream crap than old scifi!).

26 June 2001
Ding, Dong, the Witch Is Dead

The Supremes—two old ladies and seven guys in drag—decided Tasini on 25 June 2001, by a 7-2 vote. Justice Ginsburg wrote the majority opinion; Justice Stevens wrote a dissent, joined by Justice Breyer. The opinion is not what I'd hoped for.

It's much better.

You can download the entire report [173k] (or, if you prefer, just the syllabus [30k], a summary prepared for the public by the Reporter of Decisions—this is not an official part of the report, but it's always a good introduction). If you're a serious writer, I recommend that you download the full opinion, as it will bear considerable study.

Over the next few days, we'll step through the opinion and its implications. First, we'll look at the general meaning of the opinion. After that's clear—and it's not quite as easy as the public posturing by either set of litigants is making it—we'll look at some of the more subtle aspects, and the implications of the opinion for other pending litigation and for contract negotiations. Finally, I'll have some acerbic comments concerning the parties to this suit, as both sides are (and have been) acting like rectal orifices for years on this matter.

◊        ◊        ◊

Tasini is a resounding victory for writers. The Court held that a searchable electronic databse is not merely a "revision" or "reissue" of a prior collective work. This is consistent with the Second Circuit's opinion in the case, which was affirmed, and with decisions of other federal courts—except, virtually standing alone, the initial decision by the District Court in Tasini itself. More crucially, though, this is consistent with the evolving international practice. Footnote 13 requires some scrutiny (citations omitted for clarity):

Courts in other nations, applying their domestic copyright laws, have also concluded that Internet or CD–ROM reproduction and distribution of freelancers’ works violate the copyrights of freelancers. After the French Plurimédia decision, the journalists’ union and the newspaper-defendant entered into an agreement compensating authors for the continued electronic reproduction of their works. In Norway, it has been reported, a similar agreement was reached.

In other words, this isn't something unique to the US, which would create tremendous problems given the international reach of most electronic databases, specifically including several of the defendants. Instead, as Justice Ginsburg implies, we're behind the international community—and Tasini is a big step toward catching up.

More generally, Tasini stands for two principles of great importance to writers:

1. A publishing contract means what it says, regardless of later attempts to redefine terms. Most of the opinion turns on the definition of the word "revision":

The crucial fact is that the Databases, like the hypothetical library, store and retrieve articles separately within a vast domain of diverse texts. Such a storage and retrieval system effectively overrides the Authors' exclusive right to control the individual reproduction and distribution of each Article.

Slip op. at 18, citations omitted. Thus, if a term is not defined to include a specific concept when the contract is signed, later changes in technology do not automatically enlarge the publisher's rights at the expense of the author. Justice Ginsberg repeatedly noted that the purpose of the 1976 revisions to the Copyright Act was to enlarge author rights, not shrink them.

2. This decision is final. Most cases are merely remanded to the court from which they last came—the US Court of Appeals for the Second Circuit, in Tasini—for further proceedings "consistent with this opinion" (or, if it's from a state court, "not inconsistent with this opinion"—means the same thing, but it's a little bit more polite out of concern for federalism and states' rights). Here, though, the Court said the liability question is closed; all that remains is for the District Court to fashion a remedy.

Next time: Remedies.

28 June 2001
Take Two and Call Me in the Morning

Perhaps the most important part of Tasini concerns what it says is not required under copyright law: a specific remedy. A concern for remedies is what really separates a lawyer from a publishing executive, or a writer, or a political scientist, or a computer scientist. Most people—quite rightly—are concerned primarily with the question of "What is the correct behavior?" Even when correct behavior is clear, though, there's insufficient concern with "What can I do when I've been wronged?" It's all well and good to prove infringement, but that's not why most people file copyright suits.

The Copyright Act provides for several varieties of remedies, and it is in the court's discretion to choose one or more of them:

•  Damages, either statutory or actual

•  Disgorgement of proceeds

•  An injunction prohibiting further infringement

•  In certain egregious cases, punitive damages

•  In criminal cases—and yes, there is a criminal component to the Copyright Act—criminal penalties including fines and imprisonment

•  Costs and reasonable attorney's fees

But it is the judge's choice to fashion a remedy. As Justice Ginsburg emphasized,

[I]t hardly follows from today’s decision that an injunction against the inclusion of these Articles in the Databases (much less all freelance articles in any databases) must issue. The parties (Authors and Publishers) may enter into an agreement allowing continued electronic reproduction of the Authors’ works; they, and if necessary the courts and Congress, may draw on numerous models for distributing copyrighted works and remunerating authors for their distribution.

Slip op. at 20 (citations omitted).

In other words, the Court explicitly states that the publishers' principle policy argument against finding infringement is incorrect. The materials need not be withdrawn from databases unless and until the trial court imposes such an injunction as a remedy. There will be no gaps in the historical record, unless the publishers refuse to pay for use of the articles. It's their choice. They've been offered an out, in the form of a strong suggestion from the Court that the parties look to compulsory licensing for music.

The phrase "bad faith" comes to mind in this context. But then, given the law firms involved, one shouldn't be too surprised. On one side, we find a labor lawyer trying an IP case of more than ordinary complexity—and screwing it up at the start. ^† On the other side, we find a law firm widely known for its "millions for defense, not a dime for tribute" approach to litigation. The new trial judge, whoever he or she may be (the initial trial judge was elevated to the Court of Appeals), may wish to consider this in fashioning a remedy. Flouting the legal process needs to be discouraged, even if only by refusing to credit any of the inevitible challenges to the plaintiff's attorney's fees, and perhaps even applying a success-and-complexity multiplier.

Of course, the court can get around that complex calculation by making a finding of willful misconduct by the publishers and database providers. Such a finding may be justified by the fact that the publishers changed their contracts to explicitly include database rights shortly after the suit was filed in the first place—an admission against interest by conduct.

«««««««« notes »»»»»»»»»

^†   As noted in the last entry, the plaintiffs in this matter are not exactly paragons of virtue. Their posturing is almost as misleading as that of the publishers.

30 June 2001
I Have a Subtle Plan

After the time I spent in the Executive Branch, I definitely would know a subtle plan if it was painted purple, dancing naked on a harpsichord, singing "Subtle Plans Are Here Again." I can't say the same for the media: Even the law-oriented media (such as Law.com, FindLaw {although, given that it's now owned by the West Group, one of the major database operators that will be affected, that's not a complete surprise}, and GigaLaw.com) have missed the subtleties of the Tasini decision. Completely. Quite possibly because none of them really cares a whole helluva lot (or knows a whole helluva lot) about the publishing industry and its quaint practices, let alone the author's perspective thereon.

The least subtle of these subtleties is the implication for the concept of "derivative works." Time for some statutory construction, folks. Don't say I didn't warn you…

A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a "derivative work."

17 U.S.C. § 101. The examples are nice, but far from all-inclusive. Consider, for example, that a popular videogame might be based on a work of fiction. The key is the end of the first sentence: any "form in which a work may be recast, transformed, or adapted." That's very broad indeed. Compare this to the publishers' defence:

Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.

17 U.S.C. § 201(c). Quite a contrast.

Although the Court didn't say so explicitly, its reasoning is based upon a fairly simple premise:

The content creator owns every single right
not explicitly transferred in writing to a third party.

Tasini also implies a corollary:

All rights of such a third party are to be construed as narrowly as possible so as to maintain consistency with Article I, § 8, cl. 8 and its purposes.

Thus, the Court decided that a putative revision that takes a work from its explicitly authorized context and transforms the way one views (or hears) the work to a different medium actually "recast[s or] transform[s]" the work. The new version is thus a derivative work, not a revision, and therefore falls within the content creator's control unless rights to that derivative have been transferred in writing.

As a practical matter, this is far easier to administer than the opposite conclusion. By drawing a fairly easy to see line in the sand, the Court reduces the burdens on future judges and not incidentally enables content creators and their distributors (publishers, in this instance) to understand their rights and responsibilities without having an expensive lawyer review every single angle… and then be wrong, because said lawyer is being paid by one side or the other, and will slant his or her opinion in his or her client's favor. But I've seen virtually no commentary that notes that just maybe administrative simplicity—an explicit goal of Justices Scalia, Thomas, Rehnquist, and Kennedy, as shown throughout their respective jurisprudence—is another argument in favor of the result in Tasini.

Here is what I believe is the proper test for determining whether a "revision" is a revision:

A reuse of a work forming part of a collective work is not a revision with privileges under § 201(c) unless:

•  The reuse maintains the work's context, including pagination, placement, typography, graphics, and surrounding material; and

•  The reuse does not allow or include indexing and/or direct retrieval methods substantially different from those included in the collective work as first issued that will retrieve the substance of the work, except as minimally required by otherwise qualifying media changes in the reissue; and

•  The reuse is issued in the normal course of business, and not pursuant to any agreement with a third party; and

•  The reuse is not editorially or otherwise revised except to eliminate objectively clear typographical or other reproductional errors;

or the specific reuse is specifically authorized in writing by the content creator.

This is truly media-neutral—in contrast to the publishers' position, which is merely revenue-neutral as to the author (although revenue-enhancing as to them). Thus, it also meets Justice Stevens's main objection, as expressed in his dissenting opinion.

<<<Last Month (May) — Next Month (July)>>>

• the fine print first (you'll need to replace "{at}" with "@" on the address line). Please come back soon.
• Return to
• Return to Surreality Check