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02 July 2001
Interlude

Just a random interlude today. It's been a rather bizarre weekend. So bizarre that nobody would believe it if it appeared in a work of fiction; presuming it got published, virtually every reviewer would find some excuse to ridicule the scene. In I'll return to Tasini next time. Of course, if you're trusting promises from a lawyer, maybe I'll offer you some prime oceanfront property 90km east of Miami…

The brainless primary movie reviewer in the local "alternative" (around here, means "nonfascist") news weekly—you know, the kind of reviewer whose review consists of homage to one or two favorite directors, no matter how peripheral to the film under review, and wouldn't know a decent script if it slid up his leg and bit him (it's almost always him) on the ass—started off his review by demonstrating the contents of his cranial cavity: "I was beginning to fear that no one knew how to film a car chase anymore." Pardon me, but doesn't that statement assume that we need more car chases? Or even any? Or that there is a "right way" to film them? Said reviewer then decries the MTV shot-and-change approach without considering that long shots of car chases are equally interruptive of the story.

There was a quite interesting book essay in the Washington Post over the weekend, in which Michael Dirda quite rightly points out the hypocrisy of the literary establishment in its disdain for fantastic literature. (He also quite rightly points out the artistic bankruptcy of most fantastic literature—but then, as the Savage Reviews demonstrate, I believe that Sturgeon was an optimist.) Dirda recommends ten twentieth-century works of the fantastic that should, if they actually get read, satisfy even the most demanding member of the literati. Dirda's list is indeed a fine one, but in a sense is far too narrow: he restricts himself to "pure fantasy," with not even a nod at science fiction. So, for balance, here is a science fictional counterpart:

◊  Ray Bradbury, Fahrenheit 451

◊  Ken Grimwood, Replay

◊  Ursula K. Le Guin, The Left Hand of Darkness

◊  Walter M. Miller, Jr., A Canticle for Leibowitz

◊  George Orwell, 1984: A Novel

◊  Richard Powers, Galatea 2.2

◊  Thomas Pynchon, Gravity's Rainbow

◊  Keith Roberts, Pavane

◊  Mary Doria Russell, The Sparrow

◊  Gene Wolfe, The Book of the New Sun

This is not a "best of" listing, but a "subversively acceptable to literati" listing.

04 July 2001
Tea Leaves

Back to Tasini today. One subtle aspect of the opinion—critical for anyone interested in creators' rights, whether as a creator or a later user of rights—is the tea leaves left in the bottom of the cup for future disputes. We'll look at some specific examples over the next few entries, but a general understanding will be helpful.

So, what does the Court think about creators' rights?

In the 1976 revision, Congress acted to “clarify and improve [this] confused and frequently unfair legal situation with respect to rights in contributions.” The 1976 Act rejected the doctrine of indivisibility, recasting the copyright as a bundle of discrete “exclusive rights,” each of which “may be transferred… and owned separately.” Congress also provided, in § 404(a), that “a single notice applicable to the collective work as a whole is sufficient” to protect the rights of freelance contributors. And in § 201(c), Congress codified the discrete domains of “[c]opyright in each separate contribution to a collective work” and “copyright in the collective work as a whole.” Together, § 404(a) and § 201(c) “preserve the author’s copyright in a contribution even if the contribution does not bear a separate notice in the author’ s name, and without requiring any unqualified transfer of rights to the owner of the collective work.”

*  *  *

Essentially, § 201(c) adjusts a publisher’s copyright in its collective work to accommodate a freelancer’s copyright in her contribution. If there is demand for a freelance article standing alone or in a new collection, the Copyright Act allows the freelancer to benefit from that demand; after authorizing initial publication, the freelancer may also sell the article to others. It would scarcely “preserve the author’s copyright in a contribution” as contemplated by Congress if a newspaper or magazine publisher were permitted to reproduce or distribute copies of the author’ s contribution in isolation or within new collective works.

Slip op. at 9–12 (citations and footnotes omitted).

That's very nice. But what does it mean? What Justice Ginsburg and her six colleagues are saying is that the 1976 revision of the Copyright Act shifted the preexisting balance, that had been strongly in the publisher's favor, to the actual creator (or at least the party assigned as the creator by the Act). This is consistent with the core holding. It would make little sense to assert that the creator transfers only what he or she explicitly transfers in writing, and then reduce with the creator owned to transfer in the first place. Although there's no guarantee that any law will make sense—particularly in intellectual property—the devil is usually in the details. This is not a detail; it's a core principle. A little farther on, we'll see how this shift both predicts the results in other existing cases and points toward resolution of future inevitible controversies.

09 July 2001
Those Musty Old Magazines

The most obvious pending case to which Tasini provides much of the resolution is Greenberg v. National Geographic Society. The multi-CD-ROM set of National Geographics is an invaluable research tool, both for individuals and libraries. That it's useful, though, is not an excuse for theft—even when justified by what is at best a delusional rationalization.

Greenberg concerns the rights of freelance photographers, not authors. Similar to the publisher-defendants in Tasini, the National Geographic Society—a Congressionally chartered corporation—claims that the CD-ROM set is merely a revision of the existing magazines. To a point, the CD-ROMs are much more like a true revision than the databases in Tasini. The Society authorized only a true facsimile edition that includes all of the advertisements, typographical errors, and context of each article and illustration. In that sense, it's a much closer call than Tasini (although the indexing software, it seems to me, makes this at least an arguable claim). What the Society and its lawyers conveniently forget, though—despite the fact that both the trial court and the Eleventh Circuit discussed the issue extensively and granted judgment on that factor alone—is the use of copyrighted photographs in "value-added" enhancements to the CD-ROM set, including animated montages in the startup sequence. By no stretch of the English language short of calling "glory" a "nice knock-down argument" is that a "revision," "reissue," or continuation of the same series.

The saddest aspect of Greenberg is that the scope of the matter is such that it should have been settled at an early stage. There is clear actual misuse, under long-established case law, which should have convinced the Society and its counsel to settle at least the montage aspects of the matter. For somewhat less than its lawyers would have charged to evaluate the settlement (based on typical stock-photo fees), the Society could have purchased that specific additional right from those photographers whose work was in the montages, and perhaps even favored those photographers by explicitly purchasing reprint rights to their other work in the set, too.

There's something to be said for a good-faith admission of liability. Unfortunately, it's not said very often.

13 July 2001
Rosetta Stone

Judge Stein beat me to the decision in Random House, Inc. v. Rosetta Books LLC (S.D.N.Y. No. 01civ1728shs). This is the "is an e-book a book" case. Judge Stein emphasized that his decision was based upon "neutral principles of contract interpretation," not copyright law. The critical passage is as follows:

Manifestly, paragraph #1 of each contract—entitled either "grant of rights" or "exclusive publication right"—conveys certain rights from the author to the publisher. In that paragraph, separate grant language is used to convey the rights to publish book club editions, reprint editions, abridged forms, and editions in Braille. This language would not be necessary if the phrase "in book form" encompassed all types of books. That paragraph specifies exactly which rights were being granted by the author to the publisher. Indeed, many of the rights set forth in the publisher’s form contracts were in fact not granted to the publisher, but rather were reserved by the authors to themselves.

Slip op. (11 Jul. 2001) at 12 (record citations omitted)

On this basis, Judge Stein properly found that an e-book is not, as Random House claimed, a nondistinct subset of a book. It is, instead, a "new use" that is distinct. Random House's contract did not include such new uses, and therefore its motion to prevent Rosetta Books from publishing e-book versions of eight novels whose contracts dated from the 1960s through 1980s was denied.

So why does Tasini matter to this question? If it's just contract law, then a decision on copyright shouldn't matter, should it? It's not quite so simple. In the Second Circuit—which, because it includes the US publishing center of New York City, creates the most copyright law (followed by the Ninth Circuit, including Hollywood, and the Sixth Circuit, including Nashville)—there are several precedents for allowing nondistinguishable "new uses" of material under a previously granted license. See Boosey & Hawkes Music Publishers, Ltd v. Walt Disney Co., 145 F.3d 481 (2d Cir. 1998) (music license for use in a film includes use in a videotape); Bartsch v. Metro-Goldwyn-Mayer, Inc., 391 F.2d 150 (2d Cir. 1968) (derivative license for a film includes use in a television broadcast of the film). What Tasini does is make clear that an electronic text is a distinguishable "new use" as to a printed original. Judge Stein never cites any of the Tasini decisions, but it clearly casts a shadow. Once it is clear that an e-book is not the same as a book, the only question remaining is whether the grant of rights in the publishing contract for the book is so broad that an e-book would be included anyway. It is clear that the grant is not so broad, particularly as the authors reserved many of the other traditional derivative rights such as dramatic adaptations. Tasini further reinforces the concept that a publisher isn't allowed to retroactively redefine rights.

Thus, I can't claim that this is a "prediction" any more, although I did predict several weeks ago that Rosetta Books would turn on the contract language, and not on copyright law—even though the ultimate source of the cause of action is an allegation of copyright infringement. Judge Stein came to the right decision.

As I've mentioned before, I'm not so happy with the plaintiff for other reasons—the principal of Rosetta Books, Arthur Klebanoff, is also the principal of the Scott Meredith Literary Agency, which he purchased some years back. Aside from the obvious and insoluble conflict of interest (and that goes for you, too, Mr. Curtis), the Scott Meredith Literary Agency is notorious as the one fee-charging agency with any historical track record of actually placing works with commercial publishers. Historical only, though, as there's little evidence of new sales in the last few years—since Mr. Klebanoff purchased the agency. It's analogous to—and this is an unfortunate comparison made for clarity, and not as an accusation or implication of such reprehensible views—the ACLU's quite proper and necessary defense of various neoNazi groups' rights to free speech in the 1970s and 1980s. In other words, I can admire the result without admiring the litigant.

I'm in the process of resetting all journal links. If you find a bad link to a journal entry, please e-mail me.

16 July 2001
A Matter of Intent

Unfortunately, not all of the judges in the Southern District of New York appear to be as well-briefed or sagacious as Judge Stein. In Morris v. Business Concepts, Inc., et al., Judge Richard Conway Casey reached a startling conclusion: that the absence of a copyright registration certificate in the name of the author keeps the author from suing even to redress conduct "both abject and reprehensible" (slip op. at 9).^† The learned judge screwed up.

First of all, Judge Conway's rationale for the decision is just plain wrong. He granted summary judgment to the defendant because the infringed works had been registered only as part of the magazine's compilation copyright. That's all well and good, if docket control is the issue (the better method would have been to dismiss without prejudice with leave to amend upon production of the relevant certificate, which could have been obtained through standing procedures for expedited registration). However, since the defect is curable, it is not, by definition, a failure of subject-matter jurisdiction. There is no cure for failure of subject-matter jurisdiction. A complete explanation is far beyond the attention span of any reasonable individual; suffice it to say that failure to provide a certificate doesn't cut it.

More grievously, though, Judge Conway completely misconstrued the entire rationale of the 1976 Copyright Act. His opinion relies upon distinguishing authority that did allow authors to file under protection of another's registration certificate as being relevant only under the 1909 Act. This is the only way to reach the conclusion in the judgment, as it runs against otherwise-binding authority. The unstated assumption, though, is that the 1976 Act somehow made it more difficult for an author to assert his/her rights than did the 1909 Act. Justice Ginsburg's opinion in Tasini clearly states that the opposite is the case:

In the 1976 revision, Congress acted to "clarify and improve [this] confused and frequently unfair legal situation with respect to rights in contributions."³ The 1976 Act rejected the doctrine of indivisibility, recasting the copyright as a bundle of discrete "exclusive rights," each of which "may be transferred . . . and owned separately." Congress also provided, in §404(a), that "a single notice applicable to the collective work as a whole is sufficient" to protect the rights of freelance contributors.

Two Registers of Copyrights have observed that the 1976 revision of the Copyright Act represented "a break with the two-hundred-year-old tradition that has identified copyright more closely with the publisher than with the author." The intent to enhance the author’ s position vis-à-vis the patron is also evident in the 1976 Act’s work-for-hire provisions.

Tasini, slip op. at 9–10 (citations and two notes omitted)

I believe that Morris will be reversed upon appeal.

OK. Enough legal stuff for a while. At least until the next significant development…

«««««««« notes »»»»»»»»»

^†   Those familiar with my legal writing would probably question this citation. Ordinarily, I am meticulous in conforming to the obscure style demanded of legal citations through the tyranny of the Blue Book. That's not the issue here. What is the issue here is the legal profession's acquiescence in a rapacious monopoly that actively seeks to make federal decisions inaccessible to the public through specious copyright theories. Thus, particularly for decisions that are not truly final (Morris is, at this writing, on appeal), I am citing to easily-obtained materials from the court files. And, for anyone who wants a copy, I'll gladly provide one.

19 July 2001
Mirror, Mirror, on the Wall…

Who's the shadow in the hall? Just as Ged discovered, it's me. My own worst enemy. At times, supposed to be my own best friend. With friends like me, though…

A few days back would have been my sixteenth anniversary. I'm no saint, as anyone who knows me even casually can attest. I don't think I was that hard to live with, but that's looking in my own magic mirror. There was simply too much going on, though; my physical health problems, the worst of which was just being diagnosed at the time, certainly made me surly. Er. Whatever. I wish that things could have been otherwise, but wishing isn't getting.

As a matter of fact, though, my interest in the darker side of life and reality dates from long, long before there were any problems in the marriage; long, long before we had even met. What I observed growing up, both personally and politically, certainly predisposed me to cynicism. That cynicism sure as hell didn't help matters, and doesn't do so today. It has, however, on two occasions literally saved my life, so I guess it's not all bad. It's a matter of degree, I suppose.

That goes for virtually anything. Including politics. However much I disagree with the current administration—hell, I've had significant disgreements with every administration since Truman—I don't think that W is completely evil. There have been only a select few tyrants who have sunk to that depth—Hitler, Stalin, Pol Pot, Amin, and Saddam Hussein being the only examples in the last century. As bad as many others were, and some of them could act monstrous (Suharto, Pinochet, Samosa, Ciacescu, Mao, Marcos, Khomeni… the list is very, very long), only those five have a miasma of unremitting evil. Gore has/had his own scariness, particularly in the person of his wife—who, on the basis of her past behavior and recent statements, is completely incapable of understanding either the First Amendment or the distinction between entertainment and indoctrination—but the really scary thing about this administration is the vultures flocking to the corpse. There are some ugly brutes among W's friends.

The difficulty, though, is that none of them see themselves that way. I don't, either. And who's to say who's right?

I'm not entirely thrilled with the relatively recent redesign and shuffling of columnists at Scientific American, but at least it does give a forum for the inspired lunacy of Steve Mirsky. His "AntiGravity" column in the back is usually deft, amusing, and subtly biting. For example, one explanation that he offers this month for the recent dearth of UFO sightings is

The aliens are indeed gone, but the idea that they could complete their survey of Earth in a mere 50 years is both ludicrous and insulting. In fact, they ran out of alien government funding. Besides, a lot of the aliens back on their hom planet thought that the missions to Earth were just a big hoax anyway.

This paragraph manages to skewer about six different wacko beliefs. Definitely worth reading.

24 July 2001
Some Real Winners Here

The Bulwer-Lytton Literary Contest has announced its "winners." Below, I've reproduced some of them, with comments. Aside: I am reproducing these materials for scholarly and commentary purposes under 17 U.S.C. § 107 (fair use). Technically, since these are reproducing entire "works" in most cases, this journal entry could be construed as a copyright violation!

"I could tell you stories about this road we shall be traveling," the old man told his young companions as he leaned on his staff and stroked his silver beard, "of how it was built by Dwarves of the Barad-dur in the days of Thranduil the Great, numberless years before the Elves of the Ered Luin left their silver woods in Lindon, sailed their ships over the Western Sea, and passed from the knowledge of men, but what would you learn from these tales, except that I squandered my college years reading far too much Tolkien instead of meeting girls."

Preposterous! No wizard recognizes his own character flaws so overtly!

Kirk's mind raced as he quickly assessed his situation: the shields were down, the warp drive and impulse engines were dead, life support was failing fast, and the Enterprise was plummeting out of control toward the surface of Epsilon VI and, as Scotty and Spock searched frantically through the manuals trying to find a way to save them all, Kirk vowed, as he stared at the solid blue image filling the main view screen, that never again would he allow a Microsoft operating system to control his ship.

Oddly enough, I've seen some very, very similar fanfic novels…

Rodney knew that he was going to die a horrible, screaming, unspeakable death, when he arrived on the bridge in a uniform that did not match the others, was referred to only as "yeoman" and was to be sent planetside with Captain Kirk and the regular away team.

Sounds a lot like real stage direction to me.

When the mightily-hewn warrior-hero Glark One-Ear, fed up with paying the tribute demanded by the despotic wizard Jormed-the-Doubly-Soulless, set out to single-handedly unite the warring barbarian tribes of Verfot and lead them in bloodily overthrowing the evil mage's tyranny, he envisioned a progressive tax system based upon income brackets, yet allowing deductions for business expenses, dependents, and charitable donations.

Sadly, this is no more anachronistic than most Interminable Fantasy Series—it's just more plain-spoken and honest. I've yet to meet a "warrior" who gave a rat's ass about taxes, let alone could explain them.

But don't stop there! Go to the "winner" listing for 2001 and read the rest!

27 July 2001
Do I Have to Get a Life?

Maybe if I become virtuous my so-called "life" might seem worthwhile. <SARCASM> Yeah, right. A virtuous lawyer. Riiiiiiight. </SARCASM> So I'll plan on fannish stuff instead.

Well, not exactly.

I won't have much time for fannishness at WorldCon next month^† in Philadelphia, even if I hadn't left it essentially behind in the 70s. Seven hours of panels (including being a moderator), a few more hours of business meetings, about six other appointments, and maybe a couple of other panels to attend… and the obligatory parties. (I'll be easy to find. Just Spot the Lawyer.)

I've got the usual eclectic variety of panels: a couple of academic panels that will attract only other academics, a couple of legal-issues panels, and some miscellany. One of the latter should prove quite interesting: it includes (to my knowledge) five doctoral degrees among the panelists and, unusually for a science fiction convention, not one of them is in the natural sciences. So we'll all talk about history instead.

Sure beats the present.

^†   I wish it was next weekend. Hell, I wish it was now. With the way that "life" has gone over the last 24 hours, I'd rather not have a life. There are times that being a parent—especially a single parent—really sucks. Especially when it's not his fault, or even behavior, that's at issue.

31 July 2001
A Proctologist's Dream

Things are getting worse on the legal front. Today's title indicates my opinion of certain lawyers: walking rectal orifices. [You know who you are. And remember that truth is a complete defense to a charge of defamation—as is hyperbole. It's up to you to figure out which was meant.] The Morris decision went the wrong way, on some really strange reasoning; I'm still digesting it, because the Second Circuit reached much the same result as did the trial court, but with different reasoning. Overbroad laws aimed at child porn are taking all the attention from other, necessary legislation and litigation on communications privacy, security, and misuse. (Excuse me, but didn't we just litigate the CDA? Didn't you idiots learn anything?)

And that's all a helluva lot better than personal/family life of late.

It appears that I've just run out of steam. Perhaps paying the bills today did it. I feel much as did Blackadder III: "I feel like a pelican, because no matter which way I turn, there's an enormous bill in front of me."

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