Last Month (February)

04 March 2002
Fat Camp

Upon walking into a bookstore fifty years ago, and taking a look at the shelves, one would come to the conclusion that a novel runs ordinarily from 180 to 216 pages, and that anything longer than that is cause for comment. The same exercise today comes to the opposite conclusion: It's not really a novel much shorter than 288 pages, and "average" seems to be around 352 pages; the shorter works cause comment even more than does series bloat.

Why the difference? Did writing really change that much? Or did something else happen?

Part of the difference must be attributed to simple publishing and printing economics. Binding and typesetting technology went through an evolution between 1948 and 1965 nearly as profound as the development of the mechanized printing press two hundred years earlier. The economics shifted so that setup costs for a work, which are quite similar regardless of the length of the work, became a larger proportion of the total production cost. In turn, this encouraged longer manuscripts. The beginnings of word processing, electric typewriters, and xerography presaged a further explosion. Basically, it became more costly to edit than to unquestioningly do a spelling and punctuation check on a manuscript and throw it at the typesetters. Max Eastman's disciples had no place to go; instead, we ended up with editors of celebrity instead of celebrity editors. The average author began to be able to write more during the "ideal" 15–18 month publication gap, just due to technological advances.

As I've remarked at length elsewhere, too, misinterpretations of Joyce's long works by people who largely had not read them—and thus had no idea of what they were talking about—had a role. The twin lessons these idiots took away from Joyce (and Ulysses in particular, as virtually nobody not on the tenure track in an English department will admit to finishing, let alone enjoying, Finnegans Wake) were that "postmodern" (an oxymoron) fiction paradoxically requires both immensely more detail and a much smaller frame of reference than did the Moderns. This, in turn, led to increasingly detailed manuscripts attempting to recreate for the reader the cinematic experience on the page—at much greater length, ordinarily, but with a great deal less happening.

Then, too, the illusion of guaranteed success through college began to cause a great deal of disillusionment. Increasing demands on college graduates once they reached the workplace began to erode the time engaged not in leisure as a whole, but in thoughtful leisure. The Milken scams were only a symptom, if a telling one: One of the insiders continually expressed a desire to spend his leisure time with the "great books," but the pressures of his law practice prevented him from learning anything from them, and eventually from even reading them. The legions of college graduates now selling used cars instead of heading their own businesses and giving the orders certainly did not help as perceptions of college changed to "career preparation" instead of an education. These could not help affecting the kind of work being written by people who either observed or lived through those changes.

And thus, we end up with the "blockbuster"—or, more properly, "scalebuster"—novel. When I see authors crowing about how polished their first drafts are (and, if what is showing up on the shelves has been extensively revised and edited… well, let's not go there), I am reminded of Ben Jonson, although hopefully with a little bit better a choice of target:

The players often mention it as an honor to Shakespeare that in his writing, whatsoever he penned, he never blotted out a line. My answer hath been, "Would he had blotted a thousand."

The irony of this is that far more than a thousand lines in all of Shakespeare could stand elimination, including a few entire works. Yet Shakespeare is perhaps best loved for his economy of expression.

Yes, this does link up, in more than one way, with my attack on "fiction formulae" (which, at least in theory, is entirely different from "formula fiction") last month. For the moment, I'll leave this as an exercise for the student. At least until the next journal entry.

08 March 2002
Architecture

A Quonset hut beats camping in the mud, but not much else. (I've lived in one for a month.) Similarly, fiction written to a formula beats a sharp stick in the eye. Most of the time, anyway.

The major difficulty with the "fictional structure" models is that they have little to do with the end product. At best—which is pretty damned poor—they might provide some scaffolding for erecting a story structure. However, the scaffolding must be taken down before occupancy. Further, not every building (and, with modern technology, not even most buildings) use complete (or even any) scaffolding during construction. This is why it is so easy to find counterexamples to anyone's "perfect story structure": a completed building shouldn't show where the scaffolding used to erect it (if any) was.

This also ties into the bloating problems noted last time. Many of them can be traced to efforts to hide the scaffolding in the completed building, instead of taking it down once its purpose is done. Instead of making the structure stand on its own, these works try to turn the scaffolding into a part of the building. However, it's an ugly part, so one needs to add all kinds of roccoco ornamentation that, in the end, does little or nothing for the building (or "structure") itself. In other words, a story may initially start off with some kind of structure ("boy meets girl; boy and girl fall in love; boy and girl must overcome family disapproval to reach happiness"), but the end product will not always reflect that structure. In literature, unlike in architecture, the final product usually bears little resemblance to the initial sketches—keeping in mind that the initial sketches seldom make their way to paper.

Lastly, keep in mind that scaffolding itself comes in many different varieties; there is no "one size fits all," or even "one type is appropriate for all purposes," nonsense in the building trades. Neither should there be in the literary trades.

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There have been a few queries about the various internet piracy actions going on at the moment, including perhaps the biggest one: Why hasn't the book industry taken this as seriously as the movie and music industries have? There's a very simple answer:

It can't (at least as a matter of copyright).

The Copyright Act allows only the holder of a copyright to sue for infringement. Movies, for example, are always copyrighted by either the production company or the studio; for copyright purposes, the production company or studio is considered the "author." Thus, Mel Gibson cannot sue someone for copyright infringement through piracy of some kind of Detective Sergeant Martin Riggs—he has no standing to do so. Music is a slightly harder case, as there are ordinarily two copyrights involved in piracy of music: the copyright of an individual song, which belongs to the composer, and the copyright on the performance, which belongs to the record company (or occasionally the band or performer). See see Chambers v. Time Warner, Inc., et al., No. 01-7010 (2d Cir. Feb. 21, 2002). The Tasini matter demonstrates that publishers of text materials, however, do not ordinarily hold such copyrights. Looking at the copyright page of a typical (non-tie-in) book will show that the author is the copyright holder. Given the relative impecunity of most authors, it should surprise nobody that few authors have the wherewithal to support a major suit against copyright infringers, particularly if the infringers are corporate. Yes, in fact I do have a particular circumstance in mind…

The Copyright Act is also structured to prevent "interested parties," such as author's organizations, from taking direct part in a lawsuit. One cannot get into court without a registration certificate that names one as the copyright holder. Thus, SFWA cannot sue on behalf of all science fiction writers, unless it has a representative work in its own name and otherwise meets the standards for class certification. Similarly with RWA, HWA, MWA, Sisters in Crime, NWU, the Authors' Guild, etc. Judge Patel is currently engaging in a similar inquiry in the Napster matter, in that she has required the RIAA plaintiffs to cough up the certificates of registration for the works at issue. (This should have occurred much earlier in the action; that's not a tactical decision by Napster's counsel, but an outright mistake.)

This just reinforces the need for authors and other creators to assiduously register their copyrights at the appropriate time—and hope to hell that they don't run into a Morris situation, in which a magazine's compilation copyright was held to not allow the author of individual articles (to which she held the copyright) to sue. That the Second Circuit had to misconstrue the Act and its purpose is irrelevant; that is what it did, and that will allow a defendant to delay matters almost interminably.

12 March 2002
Stoned Rosetta

On Friday, the Second Circuit Court of Appeals did as I expected: in a short per curiam order, it affirmed the denial of a preliminary injunction in Random House, Inc. v. Rosetta Books LLC. I don't agree with the court's half-hand-up to Random House—the implication that maybe Random House's position has some merit—because I think that argument foreclosed by Tasini. And, as much as it pains me to say anything nice about someone who owns that agency (notice I didn't say "is an agent at that agency"), this is the right decision on a policy basis.

However, it does bring some rather unsavoury thoughts to mind. Frankly, the appeal was frivolous. It was an interlocutory (legalese for "we aren't done yet") appeal against a refusal to issue an injunction. This is difficult enough to win under any circumstances, because the standard on appeal is "abuse of discretion"—that is, the decision to issue or not issue an injunction must be affirmed unless the judge abused his/her discretion in ruling as he/she did. (No, smartass, that doesn't mean that I think judges are Frankenfurter.) This was an even clearer case, because the judge found that triable issues of material fact prevented an injunction from issuing. In other words, there wasn't even any exercise of discretion!

Given the identity of the counsel for Random House, I can't say I'm entirely surprised. Taking that appeal was, at a minimum, inconsistent with Fed. R. Civ. P. 1, Fed. R. Civ. P. 11, and Fed. R. App. P. 38. All it did was drive up costs and delay matters. Care to take a guess who benefits from higher costs and a longer case? Hint: It's almost always the party that starts out with more money. Further, as the Court of Appeals quite properly noted, if Random House wins, it has an adequate remedy at law: damages in the form of disgorgement and lost profits.

Far be it from me to question the motives of either publishing conglomerates or Certain Large Law Firms. Actually, I'm not questioning them at all. I am making and out and out statement that I believe the motives to be less than acceptable. Shame on the counsel who agreed to take this appeal. Wait. That won't do any good; by definition they're shameless.

15 March 2002
The Death Penalty

Ohdearohdearodear. <CrocodileTears>Poor Arthur Anderson, LLP. And LLC. And Consulting.</CrocodileTears> It looks like this Big Five accounting firm, which largely got to be a Big Five firm by acquiring competitors, may be broken up. The UK offices are in the process of trying to buy back their independence; rumblings are that other overseas offices are doing much the same. It couldn't happen to a nicer group of overpaid pseudoprofessional assholes. Well, maybe Congress. And most of Hollywood. And… OK, I take it back. It could. But that doesn't mean it's either ultimately appropriate or ultimately inappropriate.

The "death penalty" in question is a little-known SEC provision. If an auditing firm is convicted criminally of certain kinds of auditing misconduct, the SEC prohibits it from auditing any "public corporation" for two years. That means that Arthur Andersen would not be allowed to audit any company that has listed stock, or even unlisted stock that doesn't qualify for one of the small-company exceptions, for that entire time. Given that a large accounting firm cannot survive without doing so, this is a serious threat.

What this really points to, though, is the ethical and ideological bankruptcy of the "megapartnership." Partnerships are supposed to be among people who actually work together, or who cooperate and place their trust knowingly in a manager but nonetheless know each other and intend to cooperate. A small law firm, accounting practice, or medical practice, with six or seven partners, perhaps several nonpartner professionals, and perhaps a few employees, works as a partnership. If any partner can walk down the hall and talk to all of his coowners, that's fine. But these massive partnerships should not be allowed. A partnership has a very simple advantage over a corporation: It gets essentially no financial regulation. A corporation's tax returns are public documents. A corporation's quarterly statements are public documents. A corporation is required to disclose all litigation that it's involved in. A partnership… none of the above. Further, a partnership does not even need to have a clear management structure so that an outsider can determine who can really make a critical decision. In a corporation, one can always go to the Board of Directors and/or CEO and/or Chairman.

Thus, whether Arthur Andersen gets the SEC's "death penalty" (which, on what has been made public thus far, is probably too light, as most of the managing partners are in no jeopardy of professional discipline—including the lawyers, and Arthur Andersen has a lot of them—but far from exclusive to Arthur Andersen) or not, it and the other behemoth partnerships should be forced to reorganize. The SEC should establish jurisdiction with a rulemaking, which it can, that defines a so-called "partnership share" as a security when there are either more than 75 persons with such "shares," whether voting or otherwise, or the total value of the "shares" exceeds $10 million. (These are not random numbers; they are drawn from the Securities Act's definitions.) The shares need not be publicly traded, but a business that large should not be able to keep itself completely under wraps merely by adopting a business structure that traditionally—for some good reasons and some bad ones—has no public disclosure requirements.

As a side note, what this particular tragedy points to is the idiocy of the "partnership track." I am reasonably certain that several associates would have said something to regulators, or been more forceful in making internal protests, had they not feared for their futures in doing so. It is difficult enough to be a semimanagement employee of a corporation. Partnerships, however, as a rule, have only "at will" employees, who can be fired for coming in to work wearing mismatched socks. This creates an inordinate fear of rocking the boat, particularly among young doctors, accountants, and lawyers staring at six figures in student loans that need to be repaid.

Of course, aggressive and preventive action by professional regulators would be an even better alternative. That's about as likely as finding Phyllis Schlafly and Alan Dershowitz dancing cheek to cheek#151;particularly in accounting, which has resisted efforts to impose any real standards at all for thirty years. Sorry, guys, but the GAAP and the GAAS are worse than a joke, because everybody knows that a joke isn't serious.

22 March 2002
Slamming

As should not surprise anyone who knows me, I am irritated by a mailing that I got from VeriSign yesterday. It is captioned "Domain Name Expiration Notice" "Reply by April 19, 2002; Renewal Rate: $29 annually per domain name." I'm not fooled by this bullshit. I manage my own domains (and just renewed them in February for less than half the cost cited). However, the nicest thing I can say about this campaign is that it's a deceptive business practice. We won't say mail fraud; I can't, because I wasn't fooled and didn't rely upon it. But then, I'm far from the only person to receive this mailing…

If you get anything related to a domain name renewal, from anyone, run away. If you own a domain name, you should instead use the online renewal facility of the company through which you purchased your domain name. This is even worse than the usual "AT&T $40 check" campaign, because it implies that you will lose a piece of property if you don't follow their instructions for putting their hands in your pockets. (And yes, I am informing the appropriate authorities and bitching to the General Counsel's office at VeriSign.)

In other words, this is nothing more than "slamming" of domain name registrations. Which is just slightly illegal (see, e.g., 815 ILCS 505/2).

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As the media has botchingly indicated, Judge Cooper ruled against us in Ellison v. Robertson, et al. last week. The ruling is not a complete judgment, and thus we're still considering our options. I honor the judge for attempting to make her way through a very unclear statute and confusing set of facts; that I think she came to the wrong conclusion does not diminish her efforts in doing this for the very first time anywhere, and she did ask most of the right questions (even if we disagree with her answers). If you really want to work through the opinion, you can find an RTF file here: Ellison v. Robertson, et al., 189 F. Supp.2d 1051 (C.D. Cal. 2002).

26 March 2002
In Like a Lamb…

With the weather over the last week, one must reject the reality of global warming.º On the first day of Spring, we got snow. Yesterday, we had an ice storm. Today, we've got six inches of snow (and counting). Tomorrow, I have to drive 130 miles to go teach practicing lawyers about copyright and the internet. At the beginning of the month, we had a string of days with highs over 20C.

In the meantime, glancing at yesterday's hot sheets, I see the following:

• The injunction against Napster was affirmed by the Ninth Circuit. The opinion is largely procedural gobbledegook, and really turns not on the underlying matter, but whether Judge Patel abused her discretion in shaping the injunction and in enforcing it the way she did. The Ninth Circuit said "not only no, but hell no!"
• There is a recently introduced bill by Senator Hollings that would essentially allow Disney to control your computer for the foreseeable future. I'm in favor of protecting copyright, but not by letting an abusive holder control anything of mine. Anything. Write your Senators and Representative now and tell them to vote against the Consumer Broadband and Digital Television Act (a typically deceptive title that would merit FTC action for false advertising in a commercial context). Remind them that the Copyright Clause does not authorize such actions, and that the bill is not narrowly tailored to support an important state interest so that it passes First Amendment muster. Hint: The best way to combat piracy of intellectual property, and historically the only way that has had any lasting effect, is to make the underlying property both cheap enough and high enough quality that it's not cost-effective to steal it.
• Space aliens have recently begun congregating near Washington, in anticipation of larger and more rectums to probe inside the Beltway. Apparently, some of the broadcasts of Sunday morning news-interview programs (such as Meet the Press) have created great concern on observation stations in the Kuiper Belt. A reliable source reports crash remodelling of probes, claiming that the leadership was skeptical as to whether then-current equipment could reliably probe rectal orifices that large.

To some extent, all three items are true. If you watched this last Sunday's prancing performances, you'll understand why the third item is not entirely in jest.

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• This is supposed to be humor. I know damned well that "today's weather" has little to do with "climate change."

28 March 2002
Oxymorons (Part LVIII)

Tomorrow—today, or maybe sometime in the past, by the time you read this—is one of the greatest oxymorons in English. Christianity will celebrate the death of a man (or more than that, depending upon your fate) at the hands of a lynch mob and/or tyrannical government on a day called "Good Friday." At least the Friday part appears to be consistent with the modern calendar. "Good"? At best, one might say "Necessary" if one accepts certain theological suppositions that JC had to die to be the Savior/Messiah/All-Around-Good-Guyº that organized Christianity professes him to be.

Which leads to some rather disjointed musings on scapegoats (see, e.g., "The Ones Who Walk Away From Omelas," "The Deathbird," and Candide), martyrdom (see, e.g., Sacco and Vanzetti), and delusion. One can reach Messianic motivation only with a really sick combination of all three. First, there must be a monolithic opponent of some kind for the sacrifice. The Biblical story says that this was Man's irredeemable sinfulness (Occam's Razor says otherwise; it would have been much simpler to take other actions, and actually more in keeping with Jehovah's character expressed in the Old Testament in general and Torah in particular). Martyrdom can only happen in the face of unified implacable opposition.

More importantly, though, martyrs tend to be stupid pessimists. Really. Anyone who is important enough to truly attain status as a martyr (except through outright lying and manipulation in historical revision, which may well be the majority case!) must have more to do. There is virtually always an acceptable way out short of doing the "far, far better thing." Very, very few martyrs have much historical basis in being struck down while engaged in active opposition; the most recent example is probably Martin Luther King, Jr., but I'm not entirely certain that being on the balcony of a hotel counts as immediate engagement with the enemy. Instead, martyrs are almost always "made" in a passive situation.

There is one important exception to the passivity imperative: suicide missions. (One could argue that this just ratifies the "stupid pessimists" analysis, with some validity.) This is delusional at best. Policy and conditions don't get changed through terrorism and suicide. I'm not aware of a single such incident in the last couple thousand years that, in the cold light of reason and examination of the complete context, is not dismissable as either historical revisionism or a coincidence ultimately unrelated to the change. Consider, for example, the supposed importance of Gavrilo Princip's assassination of Archduke Francis. The analysis that everyone learns in high school history—that is, if one learns anything in high school history—is that this started World War I. Bullshit. World War I would most probably have started all by itself by October 1914, as all of the major parties were just looking for excuses. There were plenty of other excuses to be had. Thus, neither the Archduke nor Princip's purported "sacrifice" really means a damned thing.

How much more valuable it might be to celebrate "Mob Violence Friday," or "Political Expediency Friday." But that would require careful analysis and acceptance of reality and error—precisely those things that are the most consistent enemies of organized religion (as distinct from individual faith, which is entirely another question).

One last point: I am not, by definition, a heretic. Heresy can be pronounced only by believers. I'm not even an apostate.

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• Or, more darkly, the focal point for so much misguided antiintellectualism, bigotry, and bloodshed.

30 March 2002
Kipling

At this time of year, for some reason or another, the writing community seems to get wound up in the age-old argument about whether it's the quality of the work or the name on the manuscript that results in serious consideration and sale of the work. To mangle Kipling only slightly,

There are nine and sixty ways
Of selling tribal lays
And every single one of them is right.

This argument always irritates me. First, it presumes that there can only be one answer to the question. My own experience shows otherwise. I have never failed to sell a nonfiction book proposal, without relying upon an agent; they have all sold to one of the first three markets attempted. (And yes, they're real sales, to advance-and-royalty-paying publishers.) But would that work with fiction? I like to think I'm a fairly good writer, but I'm not that optimistic. On the other hand, Thomas Harris could probably sell his grocery list just because he wrote it; come to think of it, that's uncomfortably close to describing Hannibal, so we'll leave well enough alone. Besides, I'm not particularly fond of either fava beans or Chianti.

What is most dangerous, though, is that the argument presumes that there must be something other than merely writing a good book that a writer can do to sell his books. The wish-fulfillment fantasies that this implies are much more like the dreams of playground basketball players of making it in the NBA with anything short of extraordinary talent, extraordinarily hard work, and a hefty dose of luck than I find comfortable. Of course I'd like to have the talent, industry, and good fortune to pull off The Sparrow as my first novel. (I may have a pretty powerful ego, but I also know a lot more about the inside of the publishing industry than does the average bear, which severely tempers both my optimism and aforementioned ego.)

Don Maass's most recent book makes pretty clear what he (as the president of the AAR) believes must happen, particularly in this market, and particularly with first novelists:

1. Write the best novel possible.
2. While working on the next novel, using all the lessons learned while writing the first novel,
3. Adopt a persistent professional approach to selling that novel using means with which one is comfortable.

There isn't any secret formula, kids. There's no one right way. Those peddling the secret formulae ("Go to XYZ Writer's Conference and speak to exactly six editors. Shove your entire manuscript at every editor you come across in the lobby, too.") are almost never prominent authors. Prominent authors are too busy exploiting their own personal formulae to waste time and energy pontificating to a group of would-be authors that majority of whom have not yet, and never will, produce publishable work.

The flip side—that the publishing industry both puts out a lot of dreck and misses some gems—goes without saying. It is a human enterprise; therefore, it is imperfect. It could sure as hell stand a lot of reform. But even with reform, it won't look all that much different from the way it looks now, at least not in the long term, because the inertia and censorship of the marketplace will eventually swing back toward the commidification currently dominant in publishing. Just like it did in the early 1960s and early 1980s.

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