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Surreality Check A Savage Writer's Journal | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Last Month (May)
01 June 2002
Not everyone who professes a position on electronic piracy knows what the hell they're talking about. Even those who represent organizations that have electronic communications as their focus. Or, perhaps, especially—and you know who you are.
Those of us who are trying to defeat electronic piracy are not interested in shutting down the internet. We are interested in shutting down a select few outlets whose only purpose is the sale of stolen property, and making the landlords who agreed to minimally regulate the use of their property live up to their agreement.
Typically, these so-called electronic freedom fighters assert that antipiracy efforts impinge on two aspects of their rights: their right to free information, and their First Amendment rights to free exchange of information. Even a cursory examination of the facts demonstrates that these objections are pure bullshit.
This is an important distinction. The Court held that "information" is not "original" by itself, and explicitly rejected the so-called "sweat of the brow" theory of copyright. One of the constant battles for solo practitioners is the extraordinary cost of legal research materials. This cost occurs primarily because two monopolists have, for years, used every trick in the book (and many that aren't) to claim copyright in so much as the page numbering of official reports of United States court opinions. The underlying opinions are exempt from copyright. However, in legal practice, we must cite to specific pages—and WestLaw and Lexis have created a stranglehold here. (Trying to use the actually creative material added by the publishers—the headnotes—is worse, because generally the headnotes are not as accurate as they need to be.) There is no expression in a page number.
In our haste to disseminate news, it should not be forgotten that the Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas.
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In view of the First Amendment protections already embodied in the Copyright Act's distinction between copyrightable expression and uncopyrightable facts and ideas, and the latitude for scholarship and comment traditionally afforded by fair use, we see no warrant for expanding the doctrine of fair use to create what amounts to a public figure exception to copyright.
Nation Enters. v. Harper & Row Pubs., Inc., 471 U.S. 539, 558, 560 (emphasis added). President Ford's memoirs are much closer to core First Amendment concerns than is even the most important piece of fiction.
Shutting down online pirates is not about the First Amendment any more than is shutting down a fencing operation that specializes in stolen books.
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02 June 2002
This is an open plea to all ConComs that have a writing workshop: Please have your workshop participants go to Writer Beware! I was unable to give personal attention at the small BayCon workshop this year, but would gladly have walked in to do a little transcendental meditation ("MoneyflowstowardtheauthorOMMMMMMM"). I'm worried about the WorldCon session, though; I know that some of the fresh meat at ChiCon was gobbled up by literary scam artists in fairly short order after the Con. But, in any case, the trip back was an adventure. I ended up with a migraine attack (since Jaws insisted on partying too late), and the aircraft I was scheduled to take back broke. Thus, after a 13-hour delay, I ended up getting back to the office midday on Tuesday instead of midevening on Monday. Ick. And double-ick for con crud. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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08 June 2002 School's out for summer. Tuesday was the last day. I've just had three days of childcare, during which I had to paraphrase Veruca Salt far too many times ("No, you can't do that, because I'm a mean old rotten father and I never let you do anything!"). Thank Big Juju that summer camp begins for one of them the week after next! I do not know how I'm going to get through next week, though. Here's what I mean: Number of hours in three business days: 36 Number of hours productive in three ordinary business days: 8–12 Number of hours productive from 05–07 June: 2.7 As exhausting as my kids are, they've given me a great deal of insight into the so-called "welfare mother," many of whom have children who are far more trying. (At least I don't have to keep bail money handy.) I suggest that a few of the people who claim that women on welfare with children at home are perfectly capable of doing a fulltime job while still caring for them try it with one moderately disabled child for a few weeks. Then, to increase the level of difficulty, we'll throw in a few deadlines, some other family issues, low income, and administrative bullshit. I don't entirely sympathize with the "I'll just sit on my butt and draw welfare" attitude that does exist in some, but I just really don't think that's the majority. Any sitting on the butt is from sheer exhaustion. So now, all I have to do is get through four more days, somehow getting all of my preparation done for next weekend's events, then travel. And leave them with their mom <vbeg>. Actually, though, there are worse things in life than to have two extraordinarily bright children who have figured out all by themselves that Field Marshal Montgomery was an idiot, just by looking at maps of Market-Garden. Nonetheless, it's exhausting. ◊ ◊ ◊ As a general note, this summer will be largely devoted to preparing the appellate brief in Ellison v. Robertson, et al., No. 02–55757 (9th Cir.) (pending). It's going to be largely my baby. My must-be-less-than-14,000-word baby explaining to the Court that the District Court judge stated the issues correctly, but misapplied the law and facts. Of course, I'll be working with other counsel—but it is mostly mine. So if I seem grumpy at times before 23 August, there is definitely a reason. And it might even be something other than you. ;-) | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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10 June 2002 The Apocalypse is now certain. It is coming soon. Just run this phrase past your lips, and you'll understand: Sir Mick Jagger We've already got Sir Paul McCartney (and, for that matter, Dame Joanne K. Rowling), so what's wrong with icons of popular culture taking over the Honors List? It sure beats Baronness Thatcher for propriety! The Apocalypse is due not to pop icons—if there was a more insipid choice than Paul McCartney, I'm unaware of it—but to this particular choice. Really, now: knighting a man whose entire career is built upon bawdiness, ego, PR, and venality is nothing new. But turning His Satanic Majesty into Sir Mick seems a bit excessive. Now we've got this to look forward to:
Ridiculous? Only if you've never lived Over There. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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16 June 2002 For the second time in three weeks, I've had to spend the weekend travelling on business. That's the price of actually giving a rat's ass about your client's schedule instead of relying solely upon your own "normal business practices." Of course, that's also the price of being able to be so flexible because one isn't answering to one's partners. But, in any case, I'm back. No thanks to typical Illinois drivers, but I am back. The weather in Chicago was surprisingly accommodating. The car was surprisingly accommodating. The events I was there for… let's just say I got through them and leave things at that. Then I had to take care of another piracy problem. Sigh. Hopefully, this will prove less intractable than the usual nonsense. Hope spring eternal, eh? ◊ ◊ ◊ Just a few comments on the World Cup so far. First, I can't say I'm entirely surprised that France did so poorly, although I must admit to surprise at the exact scorelines. France won the Cup in 1998 largely on the strength of two things: home field advantage and overachievement by Zinedine Zidane (a very fine player who carried the team on his back). Second, although I agree that it was an upset for the US to defeat Portugal in its opener, perhaps what it really proves is that the FIFA/Coca-Cola rankings are more accurate than the pundits' usual reliance on reputation. US over Portugal was 13 over 5. That's as in world 13 over world 5. In the context of NCAA seedings, this is the equivalent of a 6 beating a 3 in the second round of March Madness, or a 13th-ranked team beating a 5th-ranked team during the season—something that happens a lot. Third, the US performance shows just how much the game (and, for that matter, any game) at its highest level is purely mental. Against Portugal and Mexico—teams with longstanding reputations for better technical skill than US players, although one must wonder about that given the gaffes I saw in the games and those nations' history of underachievement—the US concentrated for 90 minutes. And won. Against Korea, the US concentrated for 88 minutes. That two-minute lapse turned a win into a draw. Against Poland, the US slept through the first ten minutes and went down two goals, then had another lapse in the second half and nearly gave up two more. That turned a draw into a loss. Fourth, if MLS doesn't selectively sell players (the soccer equivalent of "trades"—instead of illusory "draft picks" or "players of equal value," one sells the contracts, for fees ranging from a few thousand dollars at the lowest levels to in excess of $50 million for the very best), and avoid jingoistic "keep the American players in America to represent MLS," development is going to stagnate, for both those players and others inspired by their examples. There have been four stars of this tournament for the US: goalkeeper Brad Friedel, who already had a reputation as a top-ten-in-the-world keeper (as does his colleague Kasey Keller; for some reason, probably the fielding of grounders at shortstop, US keepers have historically been better players than their field contemporaries); John O'Brien, a midfielder who has played for Ajax Amsterdam for half a decade and continues to improve; DaMarcus Beasley, a slightly built 20-year-old who has always had blinding speed but has over the last five months suddenly blossomed defensively; and Landon Donovan, another unimposing 20-year-old who has started to develop defensive acumen. Selling Beasley and Donovan to European clubs will help their development as players in a more-competitive league than MLS (which, again in NCAA terms, is a Conference America, not an ACC), will open up roster spots and playing time in MLS for other players waiting in the wings, and balance MLS's books. Those two players combined should bring in around $10–12 million in transfer fees. Clint Mathis (who has underachieved in this Cup, apparently due to injury more than anything else) will go for another $3–4 million. Since MLS's entire player payroll is probably under $25 million, a cool $15 million (along with sending their relatively low, but still top-of-the-scale, salaries elsewhere) would certainly help. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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20 June 2002 Summer "vacation" my ass. Not only do I have childcare responsibilities all day (with no break for school), but my workload has suddenly increased. I got a manuscript back from the publisher with some comments by outside referees. One of the comments just makes my head spin, because it reflects an understanding of critical legal doctrine that is a few decades out of date. A major part of the point of the book was to refute that understanding, and the referee didn't get it. The referee cited a source in support of his/her (anonymous, for good and sufficient reason) analysis that was specifically criticized both by the more-recent sources cited in the manuscript and the text of the manuscript itself. This is immensely frustrating, but par for the course; every book-length manuscript I've ever had published has had a similar issue, which just took time and effort to resolve. In other news, Press-TIGE Publishing, Inc. has filed a bankruptcy petition (No. 02-14014) in the Northern District of New York. This Press-TIGE is a scam vanity press run by Martha Ivery, who is also Kelly O'Donnell, Martha (or Kelly) Reidda, Writers Information USAgency, the Kelly O'Donnell Literary Agency (and associated editorial "services" that make Edit Ink look honest and good value for money), and one of the New Millennium Publishing outfits. More details for filing claims will be forthcoming; however, by mid-August, Martha's victims need to have claims on file with the United States Trustee (who should be appointed this week). Martha is blaming Writer Beware for the necessity of filing bankruptcy. Apparently, the fine folks of Writer Beware have scared off too many potential victims. Let us pause for a moment while I shed crocodile tears for such behavior and results. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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22 June 2002 Back to the World Cup for a moment. It's pretty clear that injuries played a huge part in the demise of the US team at the hands of Germany. Although the US played better than did the Germans, it was missing a critical element on the left. DaMarcus Beasley's speed would have opened things up far better than did Eddie Lewis. Lewis hasn't played badly in this tournament. He's certainly been better than anybody that the England team put on the left, which is ironic in that he couldn't get off the bench of his mid-table English team last season until the very last match. However, he was at fault for both shots on goal given up by the US in the quarterfinal match. His marking error gave up the free kick that resulted in the goal, and his marking error later allowed Klose an almost-free header. Beasley, although he can be knocked around a bit (I remember being that thin; vaguely, and usually with the use of photographic assistance), doesn't make the kind of mental errors that Lewis did. And Beasley would have run directly at the German back line, which broke on several occasions and survived only because Oliver Kahn played an outstanding match in goal and saved their collective butts. The real advance, though, is that though Germany didn't play badly—they weren't at the top of their game, but they didn't play badly—the consensus among neutral observers (and even the German staff) is that the US "deserved" to win the match, and would have but for three bad bits of luck. The US staff and players, however, are taking the result professionally. No whinging, unlike England. Unlike France. Unlike Argentina. And sure as hell unlike Mexico and Italy, who have brought shame and disgrace upon kindergarten-age children of those nations for generations to come. Hats off to a professional, enthusiastic, gentlemanly display by the US staff and players. Although SI is trying to make this even more of an unexpected result than it was—possibly because SI still wishes that summer was reserved exclusively for golf and baseball as played by white men—the US men's soccer program right now is the equivalent of Gonzaga in NCAA men's basketball terms. (The women's program, on the other hand, is the equivalent of Connecticut or Tennessee in the women's game—it's a shock to not be playing for the championship.) ◊ ◊ ◊ I've examined the relevant parts of the Press-TIGE bankruptcy petition, and I am quite disturbed. Either Martha's lawyer is a dishonest incompetent—which I do not believe for a moment—or she lied to her own lawyer. A large number (measured in individuals or dollars) of creditors are simply not acknowledged. As an aside, I should clarify one thing. Ms. Ivery has never been very assiduous in respecting the intellectual property of others. This is not a surprise, as she sure as hell doesn't respect their personal property! There are other businesses who have senior rights to the trade names Press-Tige and New Millennium Publishing. They are not parties to this bankruptcy proceeding, and have not to my knowledge declared bankruptcy. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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25 June 2002 After a bit more than a month, I suppose I should complete the musings I began on selling books. Recently, the editor-in-chief of Simon & Schuster, Michael Korda, published a book on the bestseller phenomenon called Making the List. The book has some interesting, if all too obvious, comments to make, particularly in the chapters on the 1980s and 1990s, concerning the excessive attention paid to bestsellers by managers with no background in publishing. However, the book also fails miserably in several aspects of analyzing the bestsellers. The first problem, and one inherent in any time-based listing, is that it is a snapshot. However, literature requires a motion picture. Many, many works have far greater influence than their mere sales in a given reporting period. Some of this influence comes from academic acceptance; William Faulkner, for example, never wrote a bestseller, but he did win a Nobel Prize and one simply cannot seriously study American literature (even in high school) without at least a nod in his direction. Some of this influence comes from the nonbook aspects of a given literary property. As a current example, consider the cultural and literary influence of Edgar Rice Burroughs, who never had (nor deserved) a bestseller, but created through the movies an immense influence on Hollywood character development and an American cultural icon. However, the most egregious problem—one that is completely ignored by both Mr. Korda and his corporate counterparts—is the short reporting periods. For example, not once is L. Frank Baum mentioned in the book, even though The Wizard of Oz has outsold all of John Grishams works. Combined. The difference is that Baum's work has done so over the long term. It is a continuing moneymaker. No royalties are due the author (it is long out of copyright). Similarly, The Lord of the Rings has also outsold everything that Grisham has written, and quite probably rivals Stephen King (who, contrary to press, has not sold nearly as well in the long term as his reputation indicates). This would have been a more valuable book, and a more valuable look at the publishing industry, had Korda even stopped to consider the fundamental flaw in bestseller lists. A corporation is (or at least should) be far more interested in the lifetime return from an investment, particularly in this era of low interest rates and rapidly dropping inventory costs in publishing. The current distribution system doesn't make things easy, either. Whether one is looking at Amazon or Borders, Ingram/Baker & Taylor or magazines, nobody reports cumulative sales or returns over any period greater than one calendar quarter. One would think that Publisher's Weekly or something else would; but it's impossible, due to the f&*)(*^!d-up distribution system. It would be possible to report units shipped, but that is by no means the same thing as units sold. Returns, spoils, remainders, etc. are closely guarded secrets, and greatly influence the final sales figures. Further, one cannot extrapolate sell-through figures from one area—say, the sell-through in the six largest bookstores in Chicago—to any other, whether that be downstate Illinois, San Francisco, or even just other stores in the same area. <CLIFFHANGER> So, then, what is a bestseller? And how should it be measured? And, more importantly, how can it be best acquired by publishing companies? </CLIFFHANGER> | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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29 June 2002 Defining the bestseller is kind of a futile effort. The key, as noted last time, is the timeframe used to measure it. Under the theory that sometimes the tortoise does in fact defeat the hare, despite the SEC's shortsighted quarterly reporting requirements that require splitting hares, I suggest that "bestsellerdom" should be measured in one of two ways. Unfortunately, neither is going to happen.
All of this, of course, assumes accurate, honest, and timely reporting of actual sales. This is not going to happen as long as we have the current system for distributing books. I have no beef with individual bookstores marking prices up or down to marketability. I do, however, have a problem with the returns and reserves system, about which more anon. So, then, how can a publish acquire bestsellers? By reading the bloody manuscripts. Many, many publishers now have "agented manuscripts only" policies that have stunted the growth of their editorial staffs and closed the doors to a fair number of bestsellers. (However much I despise the business practices of the Chicken Soup proprietors, I cannot deny their bestseller status under current definitions. "Work for hire" my ass!) A little bit of math should demonstrate that this little bit of beancounting is idiotic, even before considering the probable migration of more and better works toward a publisher that shows it is more open to quality submissions. The average editorial assistant at a New York commercial publisher costs that publisher around $50,000 a year in salary, benefits, training costs, administrative support, etc. The average editorial assistant with a college degree in English, history, political science, or one of the other "writing-heavy" social sciences or humanities is smart enough to be a "slush reader" for a publisher, and reject the truly abyssmal—and, more importantly, accurately send manuscripts that make the first cut to a more-senior editor who both has the time and the inclination to consider that particular work. As awful as most slush is, it might require the equivalent of one fulltime editorial assistant, making for an expenditure of $50,000 a year. The publisher will break even, given the usual numbers, if that one position leads to acquiring a bestseller about every 5.5 years. The numbers are even more favorable for mid-size publishers than for the Big Names.
Of course, that requires the courage to take the risk in the first place. Courage in taking risks in corporate America these days seems to extend only to risky accounting practices. As this week's Doonesberrys have pointed out all too accurately, the business pages are beginning to look like the police blotter. But then, virtually nobody currently in business has even heard of Sinclair Lewis's Babbitt
Rather ironic that I expect publishing-industry executives to learn something by reading fiction (perhaps published by competitors), isn't it? And it's even a work that counts as a "bestseller" under alternate definition 1 above… going beyond to other works, such as William Gaddis's seldom-read masterpiece JR ◊ ◊ ◊ The annual Texas Textbook Follies (New York Times, free registration required) proves merely that de Tocqueville was overly optimistic when he stated that tyranny of the majority is the greatest danger in the American republic. The inordinate influence of Texas religious conservatives on the national market for school textbooks is a tyranny of the minority. And, with a little bit of thought, it's pretty clear how this discussion of "bestsellers" relates to the textbook market. Even though the students—the ones who actually must read them in detail—don't get to choose the books, somebody does—and it's somebody I want choosing books (directly or indirectly) for my disabled child of Jewish heritage. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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Intellectual Property Rights: © 2002 John Savage. All rights reserved. You may contact me concerning permissions via email. This copyright notice overrides, negates, and renders void any alleged copyright or license claimed by any person or entity, specifically including but not limited to any claim of right or license by any web hosting service or software provider, except when I have transferred such rights with a signed writing that complies with the requirements for transferring the entire copyright as specified in Title 17 of the United States Code. This includes, but is not limited to, translation or other creation of derivative works, use in advertising or other publicity materials without prior authorization in writing, or any other non-private use that falls outside the fair use exception specified in Title 17 of the United States Code. If you have any question about whether commercial use, publicity or advertising use, or republication in any form satisfies this notice, it probably does not. Violations of intellectual property rights in these pages will be dealt with swiftly using appropriate process of law, probably including a note to your mother telling her that you're a thief. "The Savage Beast", "Savage Reviews", "Surreality Check", and the dragon-and-book banner are trade and service marks of the website owner. Other marks appearing on these pages belong to third parties, and appear either with permission or as exemplary references. |
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(very good), let alone read it. Thinking about it and its implications would be far, far too much to expect of selfish sleazebags whose only concern is how to manipulate the numbers to increase the value of their stock options, and to hell with the longterm viability of the business or the needs of their coworkers.
(outstanding; NBA winner), is clearly too much to ask. Even a more-recent and perhaps more-accessible piece like Richard Powers's 
(excellent) is not on the radar screen.
