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03 April 2002
Probability of Suntan: 80%

That is, I expect to spend a lot more time reading in a lounge chair this summer than with my butt in a threadbare chair in an airconditioned multiplex this summer. (Around here, that is literally the only choice; the "Art Theater" in town differs only in not having multiple screens.) This summer's forthcoming crop of films looks unusually grim.

The most obvious anticipated failure is Killer Clones From Outer Space. Oops. Star Wars: Episode II. I have a very simple cure for this nonsense: Next time, George, hire the f&*)^*)^g writer before you commit to production, and make it a good, professional writer who knows both story and film production, and can stick with all x movies in the series. Somebody like William Goldman, but who also knows speculative fiction. Sure, it's a tall order. With the haul of Republic credits you expect to make from this one, you could afford to pay for the dedicated attention for a couple of years of a high-class writer. Doing it right from the start would, in the end, be cheaper, create a better product, and perhaps quiet some of the laughter from critics. Some credulous reviewers are hoping for a strong middle piece, similar to their warped perceptions of The Empire Strikes Back. Given their track record, I wouldn't count on it.

The Bourne Identity is based on a novel by Robert Ludlum. Enough said: the ending will be obvious by the end of the first twenty minutes, and the rest will just depend upon stringing the audience along just enough to keep them from walking out.

Men in Black II sounds like it might be fun, or might be just another attempt to make a franchise out of something that actually had some decent closure, or both. Because the editing is so critical to films that try to combine verbal humor, physical humor, and sight gags, I'm withholding judgment.

Another Austin Powers flick? Yes, spy movies need parody. This isn't it. The first movie worked until about halfway through; the second didn't work at all; and this is a motherf&*)^&)!@g prequel?

The sad thing is that these are the most promising of the summer crop. Urgggggh. I think the DVD player is going to get a workout until The Two Towers hits theaters.

05 April 2002
Just What Had She Been Smoking?

Apparently, the drug-culture scene in San Francisco, the home of Salon, must still be flourishing. Both from a writing and from an editorial standpoint, Jean Tang's purported comparison "Lord of the Rings" vs. "Star Wars" makes me believe that they have a very large and fully loaded bong in the office. To list just a few problems with the "essay," in no particular order:

• Nowhere does Tang admit that Star Wars in fact owes a huge debt to LOTR, both acknowledged and unacknowledged. Absent LOTR, the extended-saga form purportedly at work would probably not have had marketability in the early 1970s, when commitments had to be made for Star Wars.
• More importantly, Tang fails to understand that she is comparing a part to a whole, and finding the part wanting. Although there is possibly an "end" to The Fellowship of the Ring (which, as I've remarked in my review of the film, is clearly the weakest of the three volumes of the single novel LOTR), it is not a resolution. Conversely, although Star Wars clearly plants a hint or three that there's more to come, it ends with a resolution. This doesn't mean that one can never compare a part of one thing to a part of something else; merely that this particular comparison is both inapt and inept.
• These errors are only compounded by failing to consider the differing forms. LOTR is an adaptation of a novel; Star Wars is, at best, an adaptation of an ego inspired by Saturday-morning serials, and did not have a fixed form prior to filming. Most of Tang's criticisms of LOTR are, at their core, caused by the textual origin of LOTR.
• Some of the items that Tang points to as flaws are actually the converse: they illuminate the richness of LOTR when compared to Star Wars. For example, Tang complains that Gandalf is at one moment a sort of warm-and-fuzzy friend to the halflings, who changes into a gruff taskmaster who virtually pushes Frodo out the door. What is left out is what happens in between: Gandalf sees the end of the world in the palm of his hand. Frankly, maintaining the warm-and-fuzzy mien would undermine the seriousness of the situation, and make one believe that Gandalf is either stupid or uncaring. Conversely, a gruff-at-all-times persona would not be consistent with longtime friendship with the hobbits. On the other hand, Tang never complains about the inordinately simplistic motivations and behavior of the characters in Star Wars. Applying the same standard to both films is the only acceptable grounds for comparing them directly. Those standards apply to every film.º

Frankly, I expect better analysis from freshman composition students. Unless, of course, there is a different polemical purpose at work here. One should be somewhat at sea at the end of The Fellowship of the Ring. The examples Tang cites with approval, however, have one thing in common: They are at the end of a story, both in terms of plot and character and thematic development. The Fellowship of the Ring isn't the first novel in a trilogy (or, perhaps, tetralogy, once one includes The Hobbit). It is the first third of a single long novel; there is a long way to go yet. There was also a long way to go before Tang's essay was of publishable quality.

Of course, LOTR is not a perfect movie, as I hope the review noted above makes clear. Neither is Star Wars completely irrelevant in the development of cinema. However, after reading Tang's review, one can infer some lingering bitterness at the poor reviews earned by The Phantom Menace (which is the proper structural counterpart of The Fellowship of the Ring). One can also infer some sour grapes that LOTR is getting both a big box office and critical acclaim, whereas the various Star Wars films will get only the box office—certainly as long as Lucas is taking any responsibility for the underlying story or dialog!

Overall, Tang's "essay" belongs on some Star Wars fanboy's website, probably along with the slash fiction that explains the initial distrust Han has for his old friend Lando as the remnant of a lover's spat in the Solo/Chewbacca/Calrissian free-love triangle, and then proceeds to describe that triangle in nauseating detail. Or perhaps it should just be illustrated with typically inept not-good-enough-for-serious-art-students drawings of the unproduced Episode VII… with the author as the hero.

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• With all due respect to those who complain that one must apply the appropriate "reading protocols" (or some other misnamed preconceived evaluative framework) to speculative fiction, including some fairly prominent people in speculative fiction who should know better, that's wrong and inexcusably obtuse. "Separate but equal" isn't. In any event, the same "reading protocols" should apply to what are, at their core, heroic/epic fantasies. This is precisely what Tang does not do.

08 April 2002
Solitary Birds

Anne Lamott tells the story of her brother, who had procrastinated on writing a grammar-school report on birds and visibly panicked. Their father told him that the only way he could expect to finish the report was to take it bird by bird.

This is a good method for any writing, or indeed any creative effort. With exceptions so rare that one can only shake one's head (and seldom replicated by any artist with any degree of success), the completion of a work requires some kind of organization of the task into discrete subtasks, segments, elements. This is more than just having a nice outline. For some writers, the size of the element depends as much on the amount of time one has available in a given session. Writing fiction for one hour per day is not going to allow one to finish a novel in a week! On the other hand, biting off too much for each segment can be just as stifling, when the size of the element at hand proves overwhelming.

The major difficult for some of us is the proportion of our writing that is not, in any real sense, for us. For example, I typically write between 20,000 and 40,000 words each week (not counting this journal). Of course, much of that is routine lawyerly crap—declinations of representation, demand letters, responses to client questions, briefs, contracts and agreements, etc. Of late, it has been extremely difficult to do much else. This is not just because I've been busier with legal work over the last nine months than any time in the last five years, although that's certainly an issue. Instead, the difficulty is with the size of the birds I'm faced with. Virtually all of my other writing (that has been started, anyway; one never really runs out of ideas when one is as… unbalanced as I am) is facing a significatn bird at the moment. Not just a nice, convenient sparrow or hummingbird. No, they're mostly motherf&*)(^)!g eagles. Tolkeinish eagles, large enough to carry away a small car (not to mention a manuscript).

For example, one nonfiction project that I'm involved in right now is a nonfiction book on a relatively recent Supreme Court case. The major difficulty is that, in reading the record, I've discovered that the Court may have based a major part of its rationale on evidence that appears to be tainted by potential perjury. As the lawyers and litigants are still alive at this writing, this creates a significant bird. Similarly, my works of fiction are a bit stalled for various reasons. The dystopian novel has been set aside for a while; the bird there is my NDA, which is a rather difficult beast to overcome. The fantastic novels that need to become a single work are just too complex; I've lost sight of where they're going. Even my short fiction has a big bird: the other projects demanding my time and attention.

So much for that complaint. Quitcherbitchin' and get back to the salt mines! Thank you, Jaws, for stating the obvious.

11 April 2002
Joe Isuzu

Remember Joe Isuzu? The original version, in which Joe is extolling the virtues of Isuzus in typical advertising terms while a set of subtitles at the bottom of the screen ridicule him? Caroline reminded me of him with her comments about the "reviews" at Amazon.

Contrary to the public's perception, it is in fact illegal to lie in an advertisement. The FTC Act (§ 5) specifically prohibits false and misleading advertising. The difficulty is twofold: that the definition of false and misleading is extremely narrow, being restricted to material that is both objectively and subjectively counterfactual and something that a reasonable consumer would be likely to rely upon; and that proving any of the above is an expensive, long-drawn-out undertaking.

I can almost hear the marketing community whine "but nobody is really hurt!" F&*)^k off, you ignorant morons. Even a minimal education in basic economics demonstrates otherwise. False advertising (as shorthand, referring to the FTC Act concept) harms clearly anyone who believes it. There is an opportunity cost: it created a misallocation of financial capital, because the capital would ordinarily have been expended on something that is (presumably) better suited to the consumer's needs. Caveat emptor is not an excuse here. More subtly, false advertising harms both competitors and the entire economic system. For most purposes, consumer spending is zero-sum: when a consumer buys an appalling book for $17.95, he or she can't buy a presumably higher-quality competing book with that same $17.95. This certainly harms the publisher and author of that higher-quality book. It also drives down the overall quality of the material offered, because the incremental cost of increasing quality is ordinarily several orders of magnitude greater than the incremental cost of increasing marketing efforts (at least in commercial publishing). An economic system with a disincentive to maximizing the cost-quality tradeoff is an inefficient economic system. Exhibit A: US automobile manufacturing in the 1970s and 1980s.

So what is false about these ads? Since Caroline hasn't cited them specifically, I'll just go choose an example or three of my own. Even leaving my disgust for intellectual dishonesty out, there is a serious accuracy problem: "is better than" is not the same thing as "I liked it better than." The former is an implied statement of fact. The latter is a statement of opinion that appears to be founded upon fact. Those of you who recognized these as drawn from defamation law may place a gold star on your report cards and skip the next pop quiz. However, you now get to write a 200-word explanation of why defamation law is relevant to considerations of false advertising. Hint: remember what a libel suit is supposed to provide a remedy against.

So, then, why does this matter? What if Ignatius Dorkwriter's friends all really do believe that his novel The Cockroach That Ate Cincinnati (leaving aside the intellectual property problems that novelizing that particular song would create) is better than anything Stephen King, et al. have ever written? <SARCASM> (Of course, that's not setting the bar very high.) </SARCASM> Look at it another way: if some stranger on the street gives you a hot stock tip, wouldn't you want to know his/her track record? Wouldn't you want to know that said stranger is the best friend of the company's founder, and even though he doesn't own stock himself wants to help his friend succeed? Sure, the stakes appear to be less in buying a book than buying a share of Flybynightdotcom, Inc. That, however, is a matter of tradition; many people end up buying a lot more bad books based on bad recommendations in their lifetimes than bad investments based on bad recommendations. It's just easier to trace the consequences of the latter—which is not to say that there are no consequences to the former, such as Grisham's Law.

I'd implore these turkeys to shame, except that it's abundantly obvious that they're shameless.

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Here's a strong warning for "trailermongers" who think that just making extracts of their favorite movies is only "helping to publicize them," and is legal. A recent decision in New Jersey explicitly found otherwise. In Video Pipeline, Inc., v. Buena Vista Home Entertainment, Inc., No. 00cv5236 (D.N.J., Mar. 2002), the Hon. Jerome Simandle, in a carefully reasoned opinion, held that creation of advertising materials from someone else's products is an infringement of copyright. Video Pipeline was in the business of providing preview/trailer videos to various video outlets. Due to what appear to be business disputes with Buena Vista (such as whether the license granted to Video Pipeline gave it the right to digitize and distribute trailers over the internet), Video Pipeline began assembling its own trailers from videotapes of the films. These trailers included two or more scenes from the film, possibly reedited, and some identifying material at the beginning and end. Judge Simandle held that this was sufficient to create a derivative work, and thereby violate the copyrights in the films.

This should be food for thought for anyone who thinks that all fanwise activities are acceptable as long as they provide publicity for the object of fandom, whether it be Star Wars or something else. Basically, what this opinion says is that the right to determine the kinds of publicity and marketing created using material extracted from a property belongs to the owner of the property's copyright, not to someone who merely has a copy of it. In other words, copyright is not just about ensuring compensation to creators; it is also about enabling creators to control the uses to which their creations are put. (It sure as hell isn't about "compensation to creators" if it involves Disney!)

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Tax season coming up. Between that and litigation responsibilities, I'm going to be somewhat scarce for the next week or so. I'll try to post some updates, but don't count on much.

17 April 2002
The Infernal Revenue Service

There are times that I wish the IRS would just adopt the following simplified tax form:

1. How much money did you make last year?	$_________.__
2. How much money did you spend on political contributions?	$_________.__
3. Tax (subtract line 2 from line 1)	$_________.__

At least it's more honest.

This year has been somewhat less stressful at tax time than years past. My clients all managed to panic by Saturday, so I had two whole days to fix things before their returns were due. Last year, I had one client panic on the evening returns had to be filed. That is not my idea of a good time.

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The Supreme Court got one right yesterday by ruling that the Child Pornography Prevention Act of 1996, 18 U.S.C. § 2556, is unconstitutionally vague and overbroad. Sorry, guys, but this isn't even a close call. General Ashcroft and his allies were not being intellectually honest in their continued defense of that sorry piece of right-wing fundamentalist political censorship masquerading as something to protect the welfare of the children. (If you really want to protect child welfare, eliminate corporate welfare first, and give all that money to those under the poverty line.)

There is a procedure known as "confessing error," in which the United States admits that a position that it prevailed upon in a lower court was incorrect. In this case, the government was essentially obligated to request a writ of certiorari (permission to appeal) from the Supreme Court, or the original ruling striking down the CPPA would have held only in the Eastern District of Pennsylvania. However, the vigorous—one might well say histrionic—defense of the Act once that write was granted defies logic, reason, and the rule of law.

For that is what this is about: the imposition of politicoreligious doctrine upon the nation in the guise of squelching something that is rather distasteful (although, as the Court correctly noted, never proven to actually cause any harm, as there is no reason to believe that the worst abuses would not occur in the absence of pornography). Methinks we fought a war against England over strikingly similar issues in the 1770s and 1780s. The Act is so vague that it would encompass not just Romeo and Juliet and Traffic, as noted by the Court. It would also prohibit Our Bodies, Ourselves (which, no doubt, was part of the unspoken agenda); Ordinary People; Lolita (with the irony here being that the adult who engages in sexual relations with a "child" in Lolita is eventually destroyed by them); Ordinary People; and more other works than I can shake a stick at.

Shame on you, General Ashcroft.

21 April 2002
Cures and Diseases

The assertion that descendants of African American slaves deserve substantial financial reparations has raised its profile again. My ire has been further provoked by a racist asshole who is attempting to pollute The Rumor Mill with his "honkies are evil racist bigots who all deserve to be impoverished and humiliated due to the color of their skins" bullshit. I'll leave aside the fact that neither I nor my ancestors could possibly have had anything to do with slavery in this country (as I'm only a third-generation American) for the moment—but, as will become apparent shortly, only for the moment, because it's highly relevant.

Don't get the idea that I'm defending either slavery or the status quo. I am not. However, "reparations" and other forms of nonuniversal entitlements are cures worse than the disease, roughly equivalent to treating a mild case of food poisoning with chemotherapy, and just as likely to be effective at dealing with the root causes.

Actually, the Constitution has an answer for all of this nonsense. It's not a perfect document (the phrase "three-fifths of all others" comes to mind), but it's a helluva lot better than any coherent alternative anyone has ever advanced, and even with all its faults is a better choice than anything else in current use. Article I, § 9, cl. 3 reads, "No Bill of Attainder or ex post facto law shall be passed." This provision, all by itself, stops the reparations movement in its tracks. And rightfully so. A Bill of Attainder punishes other members of an offender's family for criminal misconduct by "tainting" their rights—forfeiting property, status, etc. For example, a Bill of Attainder (either legislatively or judicially) would deny citizenship to me on the basis of criminal acts committed by my grandfather. Similarly, an ex post facto law is passed to make something illegal retroactively. Thus, that slaveholding was legal in the early nineteenth century, to this nation's everlasting shame, is a complete defense against punishing those slaveholders for illegally owning slaves by changing the law to make slaveholding retroactively illegal.

A little bit of thought (and reference to Marbury v. Madison) should show how this stops the reparations movement in its tracks (despite the recently filed grandstanding lawsuit attempting to seize the assets of several major banks on the grounds that those assets are merely benefits of supporting slavery). Whether we like it or not, slavery was legal in the United States (or at least parts of the United States) prior to 1868. We can and should engage in positive efforts to attempt to ameliorate the impact, but cannot seize property from erstwhile political opponents because they lost.

Let's assume for the moment that I owned stock in one of the banks that has been recently sued (I don't, but that's for entirely different reasons related to my law practice). If the bank is forced to disgorge assets for behavior 150 years ago, so am I, because as a stockholder I am a part-owner of the bank. This is also why corporate directors should be held personally responsible for misconduct that occurs on their watch that was detectable or preventable with reasonable diligence… but I digress.

Of more importance, neither I nor any of my ancestors had any ownership interest in any slaveholding organization at any time. (Since I can trace my ancestry back to the 1560s, I can be fairly certain of this.) Thus, why should I be punished to make up for something that other people did to somebody else's ancestors? That's the whole point of the Ex Post Facto Clause cited above: the matter shouldn't even be on the table for discussion.

As a matter of logic, one can short-circuit this whole issue by noting that replacing one set of institutionalized rules for legalized bigotry with another set, such as swapping the "owner-slave" relationship so that the former slaves are now the owners, is both self-defeating and self-refuting. <SARCASM>However, logic is not a strong point in this whole ugly issue, so I am forced to rely upon the Rule of Law.</SARCASM>

None of this means that I think opportunity has been made fair or equal, or that the vestiges of slaveownership don't continue to haunt this nation. However, one must match the remedy to the ill. The reparations movement doesn't even attempt to do so. If the reparations advocates were serious about benefitting everyone, they would also have to include everyone who has ever suffered institutionalized discrimination (such as, say, anti-Semitism) in the recovering class. That would, in essence, require the complete abrogation of all laws regarding inheritance, so that when someone dies all of his or her property is returned to the State for redistribution. I may be in favor of more-enlightened uses of capital, but I am not a collectivist! Note that I do not say "Communist" or "Socialist," because—contrary to what you may have learned in McCarthy-influenced civics classes—neither Communism nor Socialism goes that far.

26 April 2002
Ethics

Of late, the ethical standards—or, more properly, absence thereof—of professionals have been muttered about in public. A major accounting firm is again in the public's mind over Enron (and this is not the first offense by Andersen—or, for that matter, any of the other members of the Big Five). At least two large law firms are similarly under scrutiny (not for their first offenses, nor uniquely among similar firms).

Why? One reason is that the ethics standards are just too bloody complex. The ethics standards should really be very simple:

1. A professional shall not lie, cheat, steal, or tolerate other professionals who do.
2. A professional shall always be loyal to her client within the bounds of rule 1, disregarding her own personal or firm interests, and shall immediately disengage from any perceived conflict of interest.
3. A professional's judgment shall not be questioned on grounds of economic or other advantage for her firm. A firm's only acceptable response, within the bounds of rule 1 and rule 2, to professional judgment that is seriously at odds with the firm's business viability is to resign from service to that client or in that matter.
4. A professional has a constant and continuing obligation to mentor and advise other professionals with less experience or lesser capacity, within the bounds of rules 1, 2, and 3.
5. A professional shall treat an appearance of impropriety as a real impropriety absent conclusive evidence otherwise, and has a constant and continuing obligation to ensure the fitness to practice of all fellow professionals, within the bounds of rules 1, 2, 3, and 4.

That's not too difficult, is it? Well, actually, it is. This is because some of the leaders of the professions have forgotten that they are in professions, not manufacturing. There is nothing wrong with making money. For a professional, however, profit is only one of several criterea for measuring success, and can never be the dominant one. Unfortunately, I am in a minority here.

Short of adopting such standards, the professions could choose to enforce the rules that they have. That, however, would still radically change the face of the profession. Properly enforcing even the lawyers' Code of Professional Responsibility (the looser of the two major systems) would prevent abusive billing and a variety of other practices. In my judgment, after a couple of decades of watching the legal and accounting professions in action (or, as the case may be, inaction), approximately 20% of each profession needs serious remedial training to come up to the minimum standards of task competency. With some overlap, about a third of each profession needs at minimum a two year suspension from practice with required reeducation on basic ethics. Instead, no bar ethics commission ever disciplines as many as 0.5% of the lawyers admitted to practice in that jurisdiction, and continuing education is all too often an excuse to take a nice vacation and write the damned thing off as a professional expense.

I suspect that it's clear by now that I'm pretty disgusted with my profession.

29 April 2002
A Different Kind of Slavery

One of the most draconian aspects of copyright and publishing law is the so-called "work made for hire" ("WFH"). Treating something as WFH means that the author, for all purposes, is the "employer"—not the person(s) who actually produced the work. Sometimes this makes sense; for example, a newspaper report on local high school sport written by an employee of the newspaper in the course of his ordinary duties should belong to the newspaper, as it's his job to do that writing. However, many freelance contracts claim that works are WFH when the statute does not authorize that treatment. A WFH may only be:

A "work made for hire" is—
(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use [A] as a contribution to a collective work, [B] as a part of a motion picture or other audiovisual work, [C] as a translation, [D] as a supplementary work, [E] as a compilation, [F] as an instructional text, [G] as a test, [H] as answer material for a test, [I] or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

17 U.S.C. § 101.

There are, therefore, ten different kinds of works that can be works for hire. The example in the first paragraph falls under (1) ("a work prepared by an employee within the scope of his or her employment"). The nine categories listed in (2) (I have provided the letters for convenience) are exclusive—that is, they are the only other ways that a work may be considered a WFH. Let's look at them one by one:

1. Periodicals (newspapers, magazines, and academic journals) are the most common collective works. This also includes anthologies, collections, book-length studies with chapter authors, and so on.
2. Unfortunately, material on the Web may or may not be an "audiovisual work."
3. Translation here means only translation to another language, not translation to a different form (e.g., from book to cinema).
4. Supplementary works are restricted by the rest of the definition (not reproduced here) to works that are part of a planned and systematic set of instructional materials. The answer key for a college chemistry test is a supplementary work; however, a prepared outline keyed to a particular leading law textbook, but not produced by the publisher of that textbook, is not.
5. This allows an edited book, such as Year's Best Fantasy and Horror, to qualify.
6. This is fairly self-explanatory.
7. This is intended primarily to deal with large-market standardized tests, such as the SAT.
8. This corresponds directly to the tests themselves.
9. For copyright purposes, an "atlas" is a book that consists primarily of maps and supporting data and useability materials. Whether it would include a "historical atlas" that includes a few maps, but is primarily commentary, is an open issue.

One major area that is not included in the definition of a WFH is a book-length work of fiction. This is a big hint to authors (and publishers) of media tie-in fiction: it isn't a WFH, even if the contract says it is, unless produced by someone who meets the definition of an "employee." Very, very few true freelancers will meet that definition.

Why does this matter?

A detailed explanation would bore you probably as much as it would bore me, but the two most obvious issues are the term of copyright and the potential for revocation. The term of copyright for a work by a natural author is tied to the natural author's lifetime (currently life + 70 years), but the term of copyright for any other work is a flat number of years from creation (currently 95). Revocation under § 203 presents a much more difficult problem. The details are beyond us here, but revocation allows the actual author to revoke licenses to exploit works 35 years after publication. Since the Act defines the actual author of a WFH as the hiring party, this is not much of an issue. However, if it is not properly a work for hire, the actual author would be the natural person who wrote the work. In the next five years, this will start being of some significance, as the first media tie-in books that remain in print will start reaching this point. In 2012, all hell will break loose at Skywalker Ranch, because the first Star Warts tie-in books were published in 1977. And this doesn't even reach the juicy question of whether a core novelization could qualify as a WFH.

That does not really answer the question, though. Why does even this matter? (Yes, that is my pitiful attempt at a cliffhanger.)

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