Surreality Check

A Savage Writer's Journal

January 2003
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Last Month (December 2002)

01 January 2003
Ersatz

Again, the roman à clef aspects of this month's headnote are left to the vivid, misguided imagination of the reader. If you're reading this online journal, it's certainly misguided…

In any event, there's not a lot to be said for anything going on in the news right now. With very few exceptions, just about anything you might hear about the publishing industry at this time will be reported by second- or third-stringers who have little knowledge of the industry (admittedly, sometimes this is an advantage, as the first-stringers are all too prone to accepting the bullshit shovelled out of media-conglomerate PR offices as something resembling truth—whereas it is at least thrice removed therefrom). So, if you're waiting on a publishing contract, or an agent's evaluation, or your editor's response, sit back and relax. And if you're waiting on anything of real substance, such as a contract or royalty statement, don't hold your breath.

Well, that's not completely true. One of my books earned out its advance in twelve months, so I guess I can't be too upset. One of the keys is to match the book with the publisher; this was an educational book, done with one of the premier educational-market nonfiction publishers. So it can happen. Of course, there was an accidental aspect to its timing that I wish had not occurred. It was published in August 2001, and covers the development of a major doctrine in criminal evidence law by looking at the progenitor case and its aftermath. The events of 11 September 2001 made it, unfortunately, all too timely. (And the earn-out wasn't much, either—enough for a decent dinner.)

04 January 2003
The Indirect Approach

One of the most important elements of military strategy, or any other kind of strategy, is selecting the means of attack. Unless one is Mike Tyson—sad to say, I've met politicians that stupid, but fortunately no generals or admirals that stupid—one does not win a campaign by repeated bludgeoning and frontal assaults. Exhibit A: trench warfare from 1914 to 1918. That is not to say that no frontal assault is ever appropriate; it is only to say that an entire campaign cannot be based upon it.

The Allied ground war during the Persian Gulf "War" in 1990–91 is an excellent example of balancing the necessary frontal assault to reclaim Kuwait with what Basil Liddell-Hart calls the "indirect approach." Although to the unsophisticated the entry into Kuwait was the most important aspect of the ground campaign, in reality it was important only in pinning substantial portions of the Iraqi forces in unfavorable defensive positions. This allowed the flank attack—Liddell-Hart's "indirect approach"—from the west by the 24th Mechanized and other Allied forces to be decisive.

Of course, this journal entry is itself an indirect approach. Have you spotted the target yet?

07 January 2003
Interlude: A Frontal Assault

Finally coming to its senses about fifteen years too fucking late, SFWA named Ursula K. Le Guin as its next Grandmaster, to be awarded officially during the Nebulas Weekend 18–20 April. Now the old boys'dinosaurs' club will include two icky girls.

The current Board of Directors deserves credit for finally pulling its collective head out of its collective rectal orifice and recognizing that Ursula Le Guin is a major figure in American letters whose body of work dwarfs all but a few of the recognizable "big names"—whether in speculative fiction or not. Conversely, the preceding administrations who named Grandmasters primarily recognizable for their importance to fans of long ago—or, properly, preceding SFWA Presidents, since the Board had until recently only a minimal influence on the award—need to take their medicine. A cat-o-nine-tails dipped in salt, I think.

What this points out is that there isn't really a good definition of a Grandmaster. The list includes two kinds of authors. A few truly are masters of the art and craft of literature in the speculative mode. The majority, however, are not. They deserve no less respect for being "only" pioneers—but their work does not hold up today at all, and any award to these authors should be on the basis of their trailblazing, not their artistic achievement. It is extremely deceptive to try to group these two disparate types of respected authors in a single award. In fact, it disrespects one of the groups: the true masters.

Works by true masters tend to be hard. They're not the sort of thing that one in Asimov's golden age of science fiction (twelve) can ordinarily pick up and appreciate. Knock off the arrogance. When you were twelve, could you have appreciated Lear and Hamlet and The Left Hand of Darkness and Gravity's Rainbow and The Sound and the Fury? Would you have? And these are some of the easier-to-follow works I would point to as evidencing true mastery. Conversely, would your appreciation for literature have been whetted as a twelve-year-old more with an exciting story told with craft, with perhaps an idea or two to chew on? OK, I'll admit it: I couldn't stomach works by some of the previous grandmasters when I was twelve because I found them simplistic and unsophisticated—but that's for another time.

The pioneers are important in developing the discipline. Even when they're wrong, they deserve recognition. One cannot deny Nils Bohr a place of eminence in chemical physics because he conceived of electrons in fixed orbits around atoms, which we now know to a scientific certainty is wrong. Bohr's work is an essential stepping stone in reaching an understanding of basic chemistry; but even high school chemistry moves quickly past Bohr's fixed orbits to (greatly simplified) notions of shells, orbitals, and Heisenberg uncertainty. Even my 1970s AP chemistry textbook (which I still have) did! To equate scientists who find the "right" answers with those who laid the groundwork to do so is something we would find ridiculous. Although literature by its nature denies the possibility of "right" answers, there are "better" and "worse" answers—and that critical groundwork. Even a failed experiment can prove to be the critical groundwork, whether in science or in the arts (and C.P. Snow be damned). Sometimes the failed experiment is what attracts others to the field in the first place. Those who had the guts and skill to do the (failed) experiments deserve recognition—but not the kind of recognition that leads to imitation.

None of this is to say that story and craft don't matter; they do. If I didn't think they mattered, I could go hang out with the Tama Janowitzes and Ann Beatties and other overrated snobs. I have the credentials; I also have much better taste than that.

So congratulations to the Board for showing that its apparent age is somewhat older than twelve. I greatly fear, however, that this is going to prove an anomaly, and some other writer deserving recognition as a pioneer is going to get labelled a Grandmaster next year—and that one or more of the true masters will thereby miss out. If the Board really wants to fix the problem, it need only create an award strictly for the pioneers, perhaps the SFWA Grand Explorers, and adopt some fucking intellectual honesty at the expense of the fucking dinosaurs whose tastes in literature (as opposed to sex, drugs, and violence) haven't advanced beyond the Golden Age. Trying to recognize all of the qualities in a single award is about as appropriate as an Academy Award for Best Acting Performance (regardless of role, gender, whatever).

And long overdue congratulations to Ursula K. Le Guin, whose works that I read when I was twelve went a long way toward convincing me that that crazy science fiction stuff could be, and deserved to aspire to be, literature. So, I suppose, you can blame George Orwell (Animal Farm and 1984), Ursula Le Guin (The Left Hand of Darkness and the first three Earthsea books), and Harlan Ellison (DV and ADV) for these rants, in a twisted sort of way. That reading list should show just how little parental supervision I had that summer…

13 January 2003
Excuses

Fortunately, this story is merely amusing. All has been successfully dealt with. But nobody would believe it in a work of fiction.

Last Thursday evening, I got a sheepish call from the Clerk of the Court [name of court suppressed to protect the embarrassed]. The Clerk's office couldn't find a motion I had filed. They could find the filing I had moved to strike; they could find the response to my motion to strike; they could find my reply in support of my motion to strike. The Clerk asked me to FedEx another copy directly to her attention, which I explained I could not do as last pickup was in only 20 minutes. Thus, I tried faxing the motion. I'm pretty concise—the motion, including all the argument in support, was only seven pages plus cover and certificate of service—so we thought this would work. There was only one problem:

The fax machine at her end was broken.

The next morning, we did get it cleared up, and I successfully faxed the motion and the FedEx tracking form that showed it had been delivered. This is why I never dispose of anything related to shipping legal documents until the case is over. Ironically, the Post Office owes me a refund for not delivering the reply on the promised date… fortunately, I was able to clear this up at the same time.

But Your Honor, the Clerk really did eat my homework! Well, mislaid, anyway.

15 January 2003
An Interruption for the Mouse

The Supreme Court today issued an important opinion in copyright law that is much less about copyright law than about the limits of judicial review. In Eldred v. Ashcroft, several e-book publishers challenged the constitutionality of the Sonny Bono Copyright Term Extension Act of 1998, which extended all existing and future copyrights for twenty years. As a matter of disclosure, I have serious doubts personally about the constitutionality of that act, and no doubt whatsoever that it was inadvisable and poor policy. Justice Ginsburg and six of her colleagues disagreed and upheld the Act's constitutionality.

Justice Ginsburg's opinion is thoughtful, well-written, and defensible. I think that on balance it is unpersuasive to me, but that is primarily because I look at who will actually benefit from the extensions of existing copyrights versus the purposes of the Copyright Act ("to promote progress in the useful arts", U.S. Const. Art. I, § 8, cl. 8) and weigh various factors differently. Had I been writing the opinion, I would have split the baby and held that, for the reasons explained by Justice Stevens in his dissent, it was unconstitutional to extend the terms of existing copyrights—and certainly existing copyrights not held by the natural-person authors—but constitutional to extend the copyright term prospectively. However, it is narrow. I believe that the petitioners against the Act only narrowly have the better of the argument on existing copyrights, and do not have a good constitutional law argument on future copyrights.

What Justice Ginsburg's opinion only implies, however, is that judicial review is limited. So long as the power exercised was within the scope of the Constitution, the Supreme Court may not overturn an executive or legislative act merely because its judgment as to the wisdom of that act is different. I wish that she had been more explicit in stating that the Court does not, and cannot, review the wisdom of that legislative act, and note the limits of the Court's powers in language that would be clearer to laypeople. The real question at issue in this matter—primarily due to some overreaching by the petitioners—is this:

Under what circumstances may the Supreme Court substitute its judgment of the economic and other results of a given legislative act for that of the legislature?

Justice Ginsburg's opinion implies that the answer to this question is "virtually never, except when it facially violates the Constitution." Because a term of 95 years, or life plus 70 years, is literally a "limit," the practical arguments advanced in Justice Breyer's dissent are, under her reasoning, irrelevant. This is a defensible, if somewhat dangerous, view, as noted in Justice Breyer's dissent itself. Justice Stevens puts it somewhat more bluntly, noting that "Because the majority’s contrary conclusion rests on the mistaken premise that this Court has virtually no role in reviewing congressional grants of monopoly privileges to authors, inventors and their successors, I respectfully dissent."

This is an incredibly difficult line that for good and sufficient reasons must remain amorphous. That I lean on Justice Breyer's and Justice Stevens's side on this issue does not blind me to the potential abuses that a decision the other way could provoke. For example, an extreme reading of Justice Stevens's decision might return us to the concept of the absolute sanctity of contracts; it is not as far as I might wish from his rationale to preventing legislation to undo racially discriminatory covenants in real property titles on the ground that it would involve changing an existing contract right, for however compelling a reason the State may present.

It seems somewhat ironic to boil this opinion down to a question of who has the power to take or rescind an action, when the passage of the Mickey Mouse Copyright Term Extension Act—the correct title, based on the legislative history—was itself the result of a naked abuse of power by its unelected corporate proponents. In the future, what will be interesting is comparing Eldred to the forthcoming decision(s) on the McCain-Feingold campaign finance reform laws, which could come this term but most likely will come next term (that is, by the end of June 2004). Particularly if there has been a significant change in the Court's membership, the comparison will be quite instructive.

19 January 2003
Target Selection

The Supreme Court's decision in Eldred will, of course, not be the last word in the battle over the propriety of intellectual property protection. Professor Lawrence Lessig of Stanford Law School has already made a "reform" proposal to deal with what he sees as the problems with his loss on Wednesday. As is usual, though, this myopic proposal reflects a cartoonish misunderstanding of the realities of publishing and other aspects of authorship that do not relate to his obsession with The Mouse.

Basically, Lessig proposes that copyright holders who wish to hold properties over a set length of time—he proposes 50 years, which again reflects complete ignorance of the realities of print publishing—pay an additional fee to do so. Buried in his proposal seems to be an unclear intention that this be an annual tax, not just a "reregistration" fee.

Assuming for the moment that Lessig is as usual pissed off about motion pictures—particularly those, such as Disney's, that are so often founded on other material already in the public domain—his proposal still makes no sense. For a corporate interest that holds a copyright, this is merely another cost of doing business. For an individual author who holds a copyright in a poem, or short story, or essay—each of which should be registered either together or as part of an author-held collection, see Morris v. Business Concepts, Inc.—this burden would be intolerable. More individuals make a living above the poverty level as professional athletes in this country than make a living above the poverty level solely from writing books. There aren't that many more freelancers out there who make a living above the poverty level solely from their writings. Thus, purely on economic grounds, this is mistargetted; it is more likely to impact the poet whose work inspires a filmmaker than the filmmaker's bloated production company.

There is a much better solution to the problem that Lessig sees. And it is a problem; it is just not caused by what he thinks it is. The difficulty with unavailability of materials for the public domain is caused not by an excessive copyright term, but by misidentification of the author. The Copyright Clause (Art. I, § 8, cl. 8) declares that giving authors the exclusive right to their writings for a limited period of time will benefit the public. Whether that is right or wrong, it is the Constitutional imperative.

Who, then, is the author of a movie? Or sound recording? Or magazine? Or newspaper?

US law—almost uniquely—has modified the definition of the author of these kinds of works to be the party that first pays for them. The "work for hire" (sometimes called "work made for hire") doctine, see 17 U.S.C. 101, is the culprit.

The "real" solution to Lessig's problem is to eliminate the WFH doctrine except as to clause 1, employees within the scope of their duties. A movie, for example, has an immense number of creative items in it, many of which are (except for the WFH doctrine) independently copyrightable works. The script, the score, the cinematography, the editing, the costume and set design, improvisation by actors, and so on create some interesting problems. But these problems should be solved by competent administration, not fiat that denigrates all of those contributions in favor of the "producer."

Why does this matter? Why would it help with the problems that Lessig sees? Because any holder of a copyright can authorize a derivative work. Thus, the scriptwriter for Rocky XXVII can authorize a derivative work, whether the "producer" likes it or not. Unless, of course, said scriptwriter has been adequately paid and signed a contract otherwise…

I will not be leaving this as an exercise for the student. It will connect up with concerns expressed earlier in this journal.

22 January 2003
Not to Reason Why

Mine is just to shoot the guy. Or at least tie him up in litigation so thoroughly that he'll wish he'd been shot.

For me, anyway, litigation is a last resort. It's sort of like nuclear deterrence: The other side has got to believe that you've got both the capability and the will to use it if they won't resolve (or prevent) the dispute using another method. The end result can certainly be mutually assured destruction, just like real thermonuclear war. Toe to toe with the Russkies. Yeeee-ha! Hopefully without the mineshaft gap… because in litigation, burying the documents deep underground is the best way to avoid having to say you're sorry.

Occasionally, however—for me, more than occasionally, because I'm the hired gun from out of town called in after the Sherriff discovers that the outlaws are too powerful or unusual for him—one must make clear to the Honorable Jurist that one's opponent must be made to say "I'm sorry" in open court. I do very little criminal work, and all of that is adjunct to civil work. (No smartass remarks about how "criminal lawyer" is redundant; I'm perfectly aware that it's generally true.) Sometimes, however, a lawyer engages in conduct so egregious that the lawyer needs to suffer along with, or instead of, the client.

A few examples (all drawn from past, closed matters):

Unfortunately, I run into at least one of these creatures every week or so, even in the part-time practice that I have. That does not make me very happpy about my profession—particularly since, even though such behavior clearly violates all of the ethics codes (even California's!), it's impossible to actually get a lawyer disciplined or disbarred for these problems. And that's even without considering outright dishonesty, such as stealing from the clients.

On more than one occasion, I've been sorely tempted to engage in bar discipline assisted by my good friend Wüsthof. Unfortunately, that might have ruined a very nice John Phillips suit. I have only one of them myself.

26 January 2003
And Then There Were…

The Department of Justice and Federal Trade Commission have an opportunity to be proactive and protect both authors and readers at the same time. As should be no surprise to anyone who has followed the news over the last year or so, AOL TimeWarnerº is desperately attempting to unload divisions to reduce the massive debt incurred in AOL's purchase of TimeWarner, which itself should have been rejected on antitrust grounds for excessive vertical integration.

AOL is now shopping Warner Books around. This should raise grave questions about horizontal integration if it is purchased by another publishing concern. Everything depends upon the arcane art of "market definition"—a concept in antitrust law that allows almost unfettered judicial discretion and usually determines the outcome of an antitrust case.

It's not illegal to be big. It's not illegal to get big by innovation or just plain doing a better job. However, it is illegal to become a market dominator by using anticompetitive means, such as pricing below cost—or buying up all of the competition. In an attempt to disguise the fact that this is purely a gut call by the judge, the Department of Justice has issued a directive that tries to figure out how concentrated a market is through a formula based on market share. The formula adds the square of the market share (out of 100) of each firm in the market. This Herfindahl-Hirschman Index (HHI) is considered "suspicious" if the HHI after the proposed merger would be more than 1800, and presumptively anticompetitive if it exceeds 2000.

OK. Enough mumbo-jumbo for now, except to note that the HHI is more sensitive to uneven market shares. This is a consequence of using the square of the market share, because for x >1, ((x+1)2 + (x-1)2) > (x2 + x2).

Consider, for example, the market in general trade publishing. The top five publishing conglomerates (Bertelsmann, NewsCorp, Penguin, Viacom, and AOL TimeWarner, to name the ultimate owners) account for around 80% of the general trade market. If this 80% was shared evenly among these five conglomerates, the HHI would be 5*162=1280, without considering the remaining 20% of the market at all. Of course, the shares are not equal. That only two of these five companies are US companies, and none of them separately report trade results in a verifiable form, makes things more difficult. The best estimate that one can make based solely upon press-release dollar-market-share—which is startlingly unlikely to be accurate—is an HHI of around 1600 from this 80% of the market alone. That would make the present HHI around 1825, before considering the effects of a competitor purchasing Warner.

Remember, though, that defining the market is critical. There is another way to look at this that makes the overconcentration even clearer—even before allowing Warner Books to be sold to any of its major "competitors."

27 January 2003
…Less (or Is That "Fewer"?)

Most antitrust litigation involving mergers comes from farther down the food chain than the merger itself. The "rule of reason" developed in United States v. Columbia Steel Co., 334 U.S. 495 (1948), was applied from the view of the market for sales of steel. The authority for this rule is § 7 of the Clayton Act, which prohibits mergers that "substantially lessen[] competition." In Columbia Steel, the acquirer's market share would have increased from slightly over 21% to about 24%.

But, to borrow at least some perspective from Reaganomics, what about the supply side? Let's look at a much smaller closed universe: the market to purchase new works of speculative fiction from authors. Leaving aside consideration of "blockbusters" as "different" for the moment, the current supply-side market in commercial speculative fiction books looks like this (from the February 2002 Locus):

Publisher Originals Share HHI
Tor/St. Martin's 135 20.0 400.00
Ace/Roc 132 18.5 342.25
Pocket 114 16.0 256.00
Del Rey/Bantam 87 12.2 148.84
Eos 81 11.4 129.96
WOTC 39 5.5 30.25
DAW 37 5.1 26.01
Baen 36 5.1 26.01
Warner Aspect 26 3.7 13.69
all others 25 3.5 12.25
      1385.26

This table assumes that DAW is counted separately from Penguin; if not, the current HHI would jump to 1578.69. This is an unusually generous-to-the-conglomerates table, in that it includes "captive properties" that are not realistically opportunities for freelance authors to place their original works.

If Warner were to be acquired by Bertelsmann, thus being added to the Del Rey/Bantam component, the HHI increases by 100 points or so. So far, there doesn't appear to be a problem. <CLIFFHANGER> So far. </CLIFFHANGER>

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