Surreality Check

A Savage Writer's Journal

August 2003
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Last Month (July)

01 August 2003
Ostrichburgers

One of the things that I resent the most about the way legal ethics have come to be practiced is the lawyer who acts as an ostrich-like mouthpiece for clients whose behavior would have to improve radically to justify the title of "flaming asshole." The dearth of postings over here in the last week is the result of not one, not two, but three cases I'm handling in which that is an issue, along with an 800-mile drive on Monday and Tuesday to get one of my kids to summer camp. If anybody knows anyone in charge of the highways in Indianapolis, my back and left knee have some serious complaints about the allegedly finished repaving of I–70 through town…

The real problem is that too many lawyers—for some reason, most often lawyers working in medium and large firms, with eight or more lawyers—seem unable to say "no, I can't do that, and neither can any other lawyer." Model Rule of Professional Conduct 1.2(e) says that

When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct.

See also Model Code DR 2–110(C)(1)(c), DR 9–101(C); Cal. R. Prof. Conduct 1–120. One of those limitations involves telling the truth to the other side.

In the course of representing a client a lawyer shall not knowingly (a) make a false statement of material fact or law to a third party; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by rule 1.6 [attorney-client privilege].

See also Model Code DR 7–102(A); Cal R. Prof. Conduct 3–200.

I have been struggling since early last week with lawyers playing ostrich—doing everything within their power to not "know" the information that would make their actions clearly in violation of the relevant ethics rules. As I did not wish to damage the Internet with the venom that inspired, I sort of stayed off-line.

When I'm dealing with the badly written fiction that I received from opposing counsel, I have no time or energy to deal with other fiction. Thus, my promised July reviews will just have to wait, let alone my own writing.

06 August 2003
Marque and Reprisal

The current controversy and practices over peer-to-peer file downloading are sadly amusing, and bear more than passing resemblance to the way high-seas pirates were treated in the 18th and 19th centuries. The DMCA essentially gives copyright holders letters of marque and reprisal (well, the Copyright Act itself does this to some extent, but the procedural barriers act as a check on the issue).

There is plenty of blame to go around here. First, the recording industry does not really benefit the artists; the income skew is actually even greater than that in publishing. At least authors aren't stuck with seven-year "personal services" contracts! Second, the distribution system is broken, and broken badly; it is largely responsible for CDs costing $18 instead of a third of that. Third, those who steal—and it is stealing—by making music files publicly available are making it impossible for serious copyright concerns to be heard. Just as concentration on the evils of high-seas piracy took attention away from mistreatment of crews, concentration on the evils of high-bandwidth piracy is taking attention away from mistreatment of creators.

Which leads to the main question: Is the "work for hire" doctrine consistent with the Copyright Clause? Yes and no; but more no than yes. And this has a huge effect on the whole piracy issue, although that effect is not clear on the surface.

◊        ◊        ◊

Sorry I've been scarce; in addition to the legal stuff, I've been installing a new computer here. Not a good time, but not nearly as hard as the horror stories.

09 August 2003
Unexcused Absence

As I have thrown my back out again, anything you see here over the next few days is going to be even less coherent than usual. As if anyone will be able to tell!

There was an interesting article in today's Washington Post Book World on the questionable business of remainders. One of the dirty little secrets of the publishing industry is that a substantial proportion of the actual printing cost of a run of books gets recouped—without paying royalties to the author—through remainder sales. (Yes, I can back that up with hard numbers.) However, because for tax purposes remainder sales show as a loss, not a gain, that major cashflow center stays below the radar.

Here are some numbers taken from contemporary cost figures that show how this works. They are focussed on a small-press print quantity, but the reasoning holds for larger quantities, up to around 100,000 copies (the margins are just slightly thinner).
 
Print run Per-copy cost Job cost Volume Differential
from base
3000 $1.61 $4830 67 cartons $0
5000 $1.28 $6400 112 cartons $1570
7500 $1.08 $8100 167 cartons $3270
6x9 trade paperback, 240 pages, 4-color laminated cover, packed in cartons, printed on house-stock paper

The key figure is the one in the far-right column. That is the difference in actual printing cost between the selected print run and the baseline of 3000 copies (which is actually a bit high for a speciality small press). Manipulating those numbers and comparing them to the prices one can see on remainders at the local chain bookstore should lead to some interesting speculations on the economics of the publishing industry.

13 August 2003
Vacation My Ass

The idiot who called it "summer vacation" was not a single parent, and most particularly not a single parent who works from home. Then there are the two most horrible issues left to contemplate: "disability" and "teenager."

No, as a matter of fact, I have not had enough caffeine. Nor enough Flexoril.

◊        ◊        ◊

I think I've finally gotten this new machine shaken into shape, with one exception—and it's not the computer's fault. That exception is the scanner. The scanner's drivers and access programs will not operate under Windows XP. The manufacturer has specifically stated that it will not update its drivers. The scanner isn't very old, and updating the drivers would be a matter of changing a few lines in the interface section of the code, unless the drivers are particularly badly written. Thus, I am officially disrecommending Visioneer; operating systems change too often, and scanners should last too long.

All is not completely lost, however; I can still sneaker-net materials (I certainly didn't throw the old machine out) until I get an Ethernet setup here in the house and get the Windows 98 machine back easily online. No, I'm not going wireless; not only am I too cheap, but I keep privileged information on my system, and there is no way in hell that I'm leaving that open. In fact, my internet connection won't even be on the main machine, but surrounded on both sides by two different firewalls (one hardware, one software).

At the moment, I have three working desktops, one partly working desktop, one laptop, and a PDA hanging around the house. Like I said above, "teenager." It's about time to start teaching the kids some rudimentary self-protection, including both skills and security—and I can do that best if I'm sitting on their connection.

15 August 2003
Rosebush

Rose fertilizer by any other name would smell as… sweet. Whatever. In any event, SFWA has finally gotten around to releasing a new version of its membership criteria.

The criteria are better, at least in that they are clearer. They do nothing, however, to deal with the fundamental problem: SFWA is not a professional organization. It is a trade group. There is nothing whatsoever wrong with trade groups; it is, however, intellectually dishonest to call something "professional" when it fails to meet the definition of "profession." By analogy, a Catholic elementary school teacher is not a "professional teacher" because he or she is not getting the equivalent of $0.03US per word. On the other hand, a writer does not have to go through a licensing process, and is certainly not judged admissible by only those who are already members of the "profession." There is no provision for removing writers from the practice of the "profession" of writing for publication. And so on.

Or perhaps SFWA understands Luigi Pirandello all too well. Which, given the third scene in that play, is probably the case, come to think of it. The irony of an organization of writers falling into this sophistry has not escaped me. Whether it escaped those who came up with the original scheme is best left to the imagination.

17 August 2003
Essential

Change is essential
And believe me, it's long overdue
Most of the time I'm so helpless
Won't you tell me Lord—What can I do?

Oblivion Express, "Change"

I finally did it. I have dumped Amazon for Powell's Books. (The link in the last entry should be a hint.) If you spot any remaining links to Amazon for books, let me know, willya?

The cause of the change is not some protest against Amazon itself. It is strictly a protest against the stupidity of its associate link system. One has two choices of methods for links under Amazon's program: a direct link to the single page on which the item in question is sold, which does not reliably result in credit to one's account, or a "preferred" link to a page that just lists the target item at the top of a group of what Amazon considers to be comparable items. Dammit, it's my bookstore. I will not have someone else telling my "customers" what is a comparable item, especially since often Amazon's idea of "comparable" includes works I specifically criticize in my reviews!

Powell's Books has another advantage. When one does a search on an ISBN, a convenient segment of the result page (but off to the side, where it doesn't get in the way) shows other editions and availability of used copies. The Amazon system is much less satisfactory, not to mention in pitifully small type.

So, at least as far as books are concerned, I've moved from my hometown down I–5 a couple hundred miles to Portland.

22 August 2003
There Are Only Three Lawyer Jokes…

the rest are all true. Such as, for example, the Fox v. Franken nonsense. Judge Chin issued an opinion today that will probably slip right past Franken's/Penguin's counsel, because he's too much of a gentleman. The judge denied Fox's motion for a preliminary injunction against the publication of Franken's book, on the ground that there was no factual or legal merit to the motion. I have only two words in response to that:

Rule 11

Rule 11 is supposed to deal with this sort of nonsense. Not with merely novel legal theories, or theories advanced in good faith that later become untenable (and are in fact withdrawn), but with bullshit coming from lawyers in court intended to harass an opposing party. Fox's lawyers—not named here because I will not give that firm the satisfaction of a searchable entry on my webpage—need to be slapped. Hard. And in public.

This kind of nonsense, far more than the "hot coffee at McDonald's" case (which was actually a good claim, as even McDonald's representative admitted he couldn't drink coffee at the temperature at which it was served), is what drives up costs in litigation and down respect for lawyers and the law. However, the big firms almost never get tagged for it; instead, it's the small firm or solo practitioner. This is not to excuse misconduct by anyone; it is to question what appears to be selective enforcement.

Sometimes I hate being a lawyer. It means I share a profession with sleazeballs like the ones who prepared the complaint and filed the motion for a preliminary injunction. That's as charming as having an uncle who served time for bank fraud and then changed to selling patent remedies.

28 August 2003
Not the Worldcon News

For the first time in three years, I am skipping WorldCon this year. Not only did I not need a border crossing with everything going on in the world, but health and family issues got in the way. Then there's the money. Just when you thought it was safe, though, I'll get to Boston one way or another. I'll also get to a con in Chicago and one in Seattle before then… hopefully smiling with news about Harlan's case. That is, there's no news yet; but I won't get any advance notice.

In any event, while doped up over the last couple of weeks, I came up with some interesting program items for conventions.

Look, I said "interesting," not "good."

31 August 2003
Affirmative Action, or, The Annual Hugo Rant

Hugo results came out last night. Just like the Oscars, nobody cares about every category; some don't care about fan writer, while others don't care about related book, etc. However, the six "majors" (one of which is "not a Hugo") have generally been agreed to be Novel; Novella; Novelette; Short Story; Dramatic Presentation; and Campbell (best new writer). This year, that has increased to seven, with the split in dramatic presentations to roughly "novels" and "short fiction".

As usual, the voting and nomination results demonstrate the desperate need for a jury to handle the nominations. This year, we ended up with some "affirmative action" that unfairly reflects poorly on one individual… and resulted in a winner that should not have been in the top ten nominees. The cause is simple: membership in the convention tends to be concentrated within a couple hundred miles of where the convention will be held, and "regional pride" has an effect on the nominating process. Well, duuuuuh.

Now, before this is taken too much as sour grapes or personal criticism, congratulations to all of the nominees and winners for making it through an arduous process. Although the Hugos are by no means what they could be, they are certainly not chopped liver. For simplicity's sake, the number of "votes" listed is the number of votes at elimination in the first-place bracket; thus, the "placing" is slightly different below first place in a couple of categories from the "official" results.
 
Work Votes Noms
Short Story (up to 7,500 words)
Landis, "Falling Onto Mars"
Swanwick, "The Little Cat Laughed to See Such Sport"
Swanwick, "'Hello,' Said the Stick"
Ford, "Creation"
Gloss, "Lambing Season"
Sterling, "In Paradise"
Fowler, "What I Didn’t See"
Arnason, "Knapsack Poems"
Resnick & Burstein, "Reflections in Black Granite"
Wolfe, "The Waif" 		227
195
133
103
83 		26
29
30
31
22
21
21
20
20
20
There really isn't much to say about this category. Given that it took only 22 nominating votes to make the final ballot, this says something extremely uncomplimentary about the Hugo nominating readers. None of the five on the final ballot were on my nominating ballot.
Novelette (7,501-17,500 words)
Swanwick, "Slow Life"
Le Guin, "The Wild Girls"
Stross, "Halo"
McHugh, "Presence"
Frost, "Madonna of the Maquilladora"
Chiang, "Liking What You See: A Documentary"
Stross, "Tourist"
Baxter & Bradshaw, "First to the Moon"
Doctorow, "Ownz0red" by Cory Doctorow
Burns, "Look Away"
McAuley, "The Passenger" 		237
223
140
108
62 		29
32
60
34
28
33
27
25
24
23
23
(Ted Chiang declined the nomination that would have been his for "Liking What You See" for unstated reasons.) This was a particularly odd set of nominees. Literarily, the Le Guin, Chiang, and McHugh works are substantially better than their erstwhile competitors. The only voting "interest" is that the top nominee, which had nearly twice as many nominations as the next-most-popular nominee, finished third by a considerable margin.
Dramatic Presentation, Short (under 90 minutes)
Conversations With Dead People (Buffy)
Serenity (Firefly)
A Night in Sickbay (Enterprise)
Carbon Creek (Enterprise)
Waiting in the Wings (Angel) 		263
200
132
78
39 		62
24
33
72
22
As this is a new category, I suppose some shakeout problems might be expected. The fifth-place presentation was considerably behind "no award," and the order of nominations bears little resemblance to the final voting. This award clearly did not reward writing (except, perhaps, that "Carbon Creek" got what it deserved in the final voting), but fannish qualities. The common thread here was the laziness of using temporal paradoxes as the critical plot-driving device in four of the five nominees.
Novella (17,501-40,000 words)
Gaiman, Coraline
Chwedyk, "Bronte’s Egg"
Forde, "In Spirit"
MacLeod, "Breathmoss"
Finlay, "The Political Officer"
Di Filippo, A Year in the Linear City
Arnason, "The Potter of Bones" 		255
126
107
96
61
54 		85
48
47
45
41
41
40
Two interesting factors appear here. First, and somewhat unusually, a Campbell nominee actually had a work on the final Hugo ballot. This says something rather unflattering, although I'm not sure what, about the nominating process. Second, the "short novel" is starting to make a publishing comeback; two of the nominees were published under their own covers, not as parts of collections, anthologies, or periodicals.
Campbell ("best new writer")
Wen Spencer
Charles Coleman Finley
Karin Lowachee
Ken Wharton
David D. Levine
Benjamin Rosenbaum
Jacqueline Carey
Tim Pratt
Cecelia Dart-Thornton 		163
149
86
80
52 		60
51
43
40
36
35
32
29
28
As usual, this category rewarded "safe" debut works, although perhaps less so than in the past. Finley and Wharton are slightly the best of this group, primarily because their works take more risks than those of the others. The actual voting was quite a bit closer than usual.
Dramatic Presentation, Long (over 90 minutes)
The Two Towers
Spirited Away
Minority Report
Harry Potter and the Chamber of Secrets
Spider-Man
Lilo and Stitch 		388
180
109
41
26 		428
130
191
183
164
126
Not much of a surprise here, and the winner is deservedly so (on the first ballot no less, which is increasingly rare). What I found so appalling is that Star Trek: Nemesis, Star Wars II: Attack of the ClownsClones, and Men in Black II garnered nearly 100 nominations among them. But then, I almost always find this category appalling. Of some interest, half of the top six nominees were either animated or based on graphic works.
Novel (over 40,000 words)
Sawyer, Hominids
Miéville, The Scar
Brin, Kiln People
Robinson, The Years of Rice and Salt
Swanwick, The Bones of the Earth
 293
266
176
16
85 		97
91
69
88
72
The voting totals are, in this instance, an artifact of the way Hugo ballots are tabulated. This category has our affirmative action candidate, this time for Canadians. Hominids does not belong on this ballot. There was a considerable drop from the least-nominated work on the final ballot to the next work; the very best work of the year didn't even make the top 15 nominees. On the other hand, on merit neither should Hominids.

Some day, somebody is going to explain the distinction between "popular" and "good" to the people who actually control the process. I suspect, however, that such a difference is beyond their capacity to understand. The whole point of having a jury render the nominations is that a jury is less likely to overlook true merit (or, when run with some integrity, commend the meritless).

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