Surreality Check

Stupid Lawyer Tricks, Episode 47

This one should end up on Letterman. It's almost a stereotypical lawyer joke. It's also dead serious, and demonstrates why lawyers should keep the hell out of the arts as much as possible.

We'll do this like an exposé. First, go to the Publisher's Weekly website and read about this trademark and copyright infringement action. OK, ready?

The politest thing I can think of to say about Messrs. Casey and Curtis and Ms. Stouffer is that they've filed a nuisance suit. Anything more that I say may run afoul of the Rules of Professional Conduct—which, if they had been followed in this case, would have resulted in a completely different sequence of events from that presented. If one reads the letter of the Lanham Act (the federal trademark statute) literally, there might be some chance of success. Minimal, but some, because the term "muggles" does not appear to qualify as a "strong mark." However, it also runs afoul of the Copyright Act, the Constitution, the realities of international trade, and common bloody sense.

Here's why:

The "muggles" of Ms. Stouffer's works are not, in any way, comparable to those in Ms. Rowling's. (Yes, I've read both sets of materials.) Except, perhaps, the (not quite) nonsense syllables in question. A trademark is valid only for comparable use or where there is a reasonable possibility of confusion. Not a chance that a jury would find for Ms. Stouffer here.

The Copyright Act starts to creep in when we realize that one cannot copyright a title. Leaving aside the issues of political comment, Ronald Reagan would have won any suit by George Lucas for misappropriation of the terms "Evil Empire" and "Star Wars" for his own little cold-war fantasies. Yet, by extension, that is exactly what has been attempted here, using the Lanham Act as a way to "copyright" something that is not copyrightable.

Then there's the international trade issue. Rowling's books use British slang extensively, and "muggle" has meant "complete loser" since the 19th century. So, then, is Stouffer et al.'s position that one must translate all slang into local vernacular? What about place names? Assume for the moment that a Russian detective novel is set in the Urals near a landmark that has been known as "Twin Peaks" for hundreds of years. Under Stouffer et al.'s theory, one must purposely mistranslate the place name to avoid infringing on David Lynch's trademark—a much stronger mark.

And then there's the money.

The motivation for filing this suit is nuisance—and somebody's hope that this is likely to result in a quick settlement to avoid potential problems with the movie release and release of future Harry Potter books. That, of course, has two problems.

1. Where's the beef? Or, more properly, where's the harm? How can Ms. Stouffer show that her books, which use the word "muggle" prominently in the title, have had their sales unfairly diminished by Ms. Rowling's, in which the word "muggle" is used like the adjective "green"? It is far more likely, in fact, that Ms. Stouffer's sales will have increased due to "positive confusion." No blood, no harm, no foul.
2. Just how the hell does Ms. Stouffer's side expect to handle the international aspects of this issue? Are they going to file suit in all of the other countries involved? A close reading of the Lanham Act appears to require such a course of action. Trademark, unlike copyright, is a "rabid Rottweiler" statute: If you don't use it, you lose it.

So, lawyers, keep out of the art stuff. It seems quite clear that the lawyer(s) who began this had no concept whatsoever of what a "muggle" is, in either author's works, or in British slang. I'm extremely displeased that there was even a demand to cease and desist made. Curious that it apparently wasn't made until after there were big profits on the table—which shouldn't matter for protection of a trademark. Ms. Stouffer's interests would have been much better served by an attempt to guarantee that the titles of Ms. Rowling's future products would not parallel her own, and that could have been done with a letter between agents.

04 December

I see you shiver with antici . . . pation
So I'll remove the cause, but not the symptom!

© 1975 Ode Records

Well, I've kept you in suspense for nearly a week now. Why, indeed, should writers care about what the WTO did (and did not do) in Seattle?

For a very simple reason:

The WTO is the world's greatest threat to intellectual property. That includes your writings. Why this is so is a bit convoluted.

At the moment, the People's Republic of China (among others) is not a member of the WTO. As a non-member of the WTO, it is also a non-member of WIPO and the Berne Convention. The Chinese have, for years, waved a "cultural imperialism" banner in the face of all who suggested that they should follow running-dog capitalist pig copyright, patent, and trademark practices. (Curiously, that doesn't seem to have mattered much to Taiwan. Or not so curiously, but for reasons that would take far too long to explain here.)

There is, in fact, a tradition in Han culture that raises "imitation is the sincerest form of flattery" to a cultural imperative. Certainly during the post-Three Kingdoms era, a scholar was virtually expected to learn by copying the ancient masters. Don't cite the authority, quote the authority. The educated audience should know who you're quoting.

But the PRC is not, in any real sense, a Han culture, or even a recognizeable descendent thereof. (For one thing, castration is no longer required of government officials.) Instead, this is a smokescreen. China wants significant other concessions from the WTO before it will participate in good faith. Intellectual property is nothing more than a bargaining chip, but one that has real meaning to the West. It is more than arguable that the West's economy is completely dependent upon intellectual property. The Mouse, Newscorp, Bertelsmann AG, Pearson, et al. are merely the tip of the iceberg. A trillion-dollar tip, but the tip nonetheless. Patents and trademarks are such critical elements of the post-industrial and industrial societies—and probably developing pre-industrial societies, if only because of the impact of agricultural patents—that everyone is stepping very carefully around the problem.

Frankly, the WTO is a horse with blinders. The blinders are there not to keep the horse from being distracted by the great unwashed, but from noticing that it is pulling the knacker's wagon. Denying the context of "trade" is like claiming that DDT was wholly good, because it was effective at controlling the anopheles mosquito (among other "pests").

07 December

The counter change on the Surreality Check page is, hopefully, temporary while LinkExchange gets its act together. It's at least as accurate as the recent readings.

Quite a frustrating week thus far. Not quite everything has gone wrong, but close enough. I had a major piece of work under consideration at the Yale Law Review, but was bumped by a "tenure piece" for one of their faculty members. (Naturally, it was under my "real" name.) Sixteen other rejections for the same article came in yesterday and today.

That's right. To get published in a law review, one must use simultaneous submissions. I usually send out batches of about 30 or so (ranked by prestige and, where appropriate, fit). This batch with this article is now just over halfway through at the top tier, which I'm hoping to crack. I've had four "nibbles" thus far, including Yale and three others that have not made final decisions yet.

Meanwhile, my hard disk crashed. I held a burial in the back yard—ok, I didn't, but it was gone. I was up and running in just under two hours (I had a spare, and a fresh backup, and floppy backups of work in progress). But not a great way to spend Sunday afternoon.

My teenaged car is starting to show signs of teenage rebellion. You know, the disreputable clothes and haircuts, the refusals to take out the garbage, and so on. Quite a pain in the butt, particularly since there's no competition for body-shop services in this town (thus inflating the prices). At least the power train is still sound (crossing all appendages).

We won't get into mood or personal life. You don't want to hear it. It doesn't belong on these pages. Some people can "hang it out." I can't—too many years of "lying" to my wife about where my office was, who my boss was, and what my actual job was by the mere fact of walking in the door every evening as if everything was ordinary. Suffice it to say that I'm sorely tempted to give a Colombian Necktie to the next artifically cheery person who tells me to "Have a nice day!" from behind eyes that say "vacancy inside."

08 December

This is a test of the emergency webpage system. It is only a test. Had this been a real or virtual webpage, you would have been redirected to another page.

No particular point today. I'll just wander around the halls in my head, occasionally stopping to comment on random bits of grafitti spraypainted by the previous resident.

I spent most of the afternoon chasing rabbits down their holes. That's my minimalist version of writer's block. I have to write; I just don't always make progress on what I'm supposed to be writing. Today, I was supposed to be drafting a complaint. Instead, I ended up working on character sketches for a novel in progress, editing the first draft of a novella, and taking calls from telemarketers and playing with their minds.

Playing tricks on telemarketers is like shooting fish in a barrel. Yes, some telemarketers are just students trying to earn beer money; but even they do their jobs without really listening. I led one long-distance service guy in, out, and around Roswell, New Mexico for a couple of minutes, then told him I wasn't interested and hung up. He's probably still trying to figure out just how the hell he got someone who needs intergalactic services at a discount rate so his new friend can phone home.

And he didn't seem to get it.

Oh, well. Maybe next time I should just pretend that I'm from France? "I am using communications device. Place striated muscle of castrated young steer in convection heating device for sixty Earth minutes at 500 Kelvin." "Unacceptable. Unacceptable."

Just remember: You're never alone when you've got multiple personality disorder.

11 December

United States v. Charles Deering, Dorothy Deering, Daniel Craig Deering, and William Paul Watson, No. 99cr0076 (E.D. Ky.) (Forester, J.)

My, my, my. Aren't we having fun. I don't think the Deering defendants are getting along very well right now. Especially since William Paul Watson (known as "Bill Richardson" to victims of the Deering Literary/Sovereign Publications/Appaloosa Press scam) has flipped.

On Friday, 10 December, Watson and his attorney appeared before Judge Forester. Watson changed his plea from the resounding "Not Guilty" of September to "Guilty," and indicated that he will cooperate fully with the government. But that's not even the most interesting facet of the case.

Over the last few weeks, I've watched the docket (which is a public document) with some amusement and some downright glee. There has been a fight brewing over whether the government could pierce the attorney-client privilege of Charles and Dorothy Deering and force their former attorneys to testify (Dock. 51, 54, 56, 57, 60,61, 65, 66). Judge Forester went so far as to conduct an interview in chambers outside the presence of the Deerings' current counsel (Dock. 65).

How, you may ask, is that possible? Aren't all communications for the purpose of obtaining legal advice between clients and their attorneys completely confidential? Almost. There is, however, one major exception: the "crime-fraud exception." Communications with an attorney for the purpose of obtaining legal advice in furtherance of a serious crime or fraud are not privileged. That doesn't mean that one can't ask an attorney's advice on how to conform one's plan to the law. Far from it; that's one of the major justifications for the privilege. It does mean, though, that one can't ask an attorney for help setting up an offshore corporation (such as one in the Caymen Islands) for laundering or holding the ill-gotten gains of a fraud.

This is, of course, only inference from trying to read between the lines of the docket. Nowhere does it mention the subject of the interview in chambers.

<SARCASM>
I'm just shocked—shocked to my toes—that fine, upstanding citizens like the Deerings would even dream of misusing an attorney's advice to hide their, umm, ill-gotten profits.
</SARCASM>

You've seen me mention it before. I'll mention it again. Like Deep Throat said, "Follow the money." Perhaps now you can see why the indictment includes one count of violating 18 U.S.C. § 371 (conspiracy to defraud the United States). I'd be quite surprised if all the taxe were paid . . .

13 December

The Millenium for the Numerically Challenged

So, is this New Year's Eve going to end the millenium? Well, there will be a "2" as the thousands digit in the Western calendar for the first time, so that's certainly a significant change. But wait—there was no Year 0, so the new millenium doesn't begin until 2001, right?

I actually lean toward the first view. The Western calendar is ridiculously arbitrary, so why not one more arbitrary factor? The year begins a week and a half after the nearest significant astronomical date, December 22 (Winter Solstice in the Northern Hemisphere). The whole idea of a "year" is supposed to be based on the planet's orbit, right? Even the January 1 start is due only to some political shenanigans to collect tithes a little earlier in one year. The English resisted for a long time, but finally gave in to the Papists. The calendar is supposed to date from the birth of Christ, which was, according to most scholars who've given it any real study, sometime during late March or April of 3 or 4 B.C. And what about all the other calendars? The Jewish calendar, the traditional Japanese and Chinese calendars, and so on have us in the fourth millenium, fifth millenium, etc. Then there's the silly, inconsistent "months," which don't even correspond to "moons" (the linguistic ancestor). Why not go with thirteen four-week months and one (or sometimes two) days of extreme partying at the end? Speaking of months, the names are a strange mixture of Latin numbers (off by two, naturally) and Roman mythology, while the days of the week refer to Norse mythology.

In a way, it's sort of like the common misuse of "kilo-" and "mega-" with computers. Linguistically a kilobyte is 1,000 bytes exactly, while a megabyte is 1,000,000 bytes exactly. They're actually 1,024 bytes and 1,048,576 bytes, respectively, because the quantities in question are based on exact powers of two. The next time I see an ad in the paper for a senior systems analyst paying $45-60k depending on experience, I'll ask if they really mean $46,080 to $61,440. It is, after all, a computing job . . .

So, if we're going to be arbitrary anyway, why not be arbitrary in an easily understandable, easily defineable way? Personally, I'd start the calendar with the beginning of "modern civilization": June 12, 1215 A.D. at Runnymede. Late morning; no crumpets. So the second millenium is still a couple hundred years off, and we're in the middle of Year 784. But then there's the Year 0 problem . . .

And shame on you if you can't figure out that reference without help.

16 December

Linda Dunn made some interesting comments in her journal for 16 December (titled "Vince Lombardi Was Right," if you see this entry after she shifts hers to her archive). If you've been reading this journal very long, you're all too aware that my attitude toward government work is "been there, seen that." Way back in 199x, when I worked in A Certain Building at Fort Meade, we had problems with workers using modems to do AOL, CompuServe, and Genie on Company time. It wasn't just wasted resources; it was a serious security risk.

I completely understand Linda's position. I just hope that "non-work related" was interpreted fairly liberally. Porn sites, shopping for lingerie, and stock trading (well, perhaps not on the lunch hour for stock trading, but that's because of the stupid market trading hours) are not appropriate. But all of those personal phone calls in place of email and the web add up. Let's be honest, folks: It's damned difficult to take care of all of one's responsibilities in even a moderately complex life without doing any of it between 8 and 5, Monday through Friday.

The real problem is not the workers themselves, but management policies that discourage flex schedules. There are a lot of jobs that need coverage during "business hours," true enough. There are very few jobs that simply must be covered by person X during "business hours" and would fall to pieces if person X and person Y cooperated to ensure coverage, but worked four ten-hour days (or some such). With more and more of us working from home, this will make even more sense. But then, making sense has never been a strength of the federal government.

One problem that I've noted recently is attempts by scam agents and scam publishers to gag authors—prohibit them from discussing the terms of the contract with anyone.

Any provision that attempts to prevent you from discussing a matter with your attorney, in search of legal advice, is unenforceable except in matters of national security.

Anyone who tells you otherwise is seriously misinformed (and probably not qualified to state an opinion in the first place), grossly inept . . . or a participant in or accessory to the scheme. There is an absolute right under American law to consult with counsel (once again, there is an exception for national security) on any matter at any time. That includes providing proprietary information from work, so long as there's a legitimate connection between the proprietary information and the legal advice sought. There may be later fights about how that proprietary information was used, particularly if there's an allegation of fraud by the employer (such as the Brown and Williamson morass). There may be extensive litigation; some companies take no prisoners (GM, for example). However, that doesn't prohibit the initial consultation.

Frankly, these clauses will, in the end, do no good at all. Once they appear in open court, they're public record. Judges will look very skeptically at them, particularly since the industry has a historical practice of treating only the exact amount of compensation as confidential. On the other hand, gag clauses are pretty good tools for perpetrating a fraud. Judges know this, and your counsel sure as hell should.

Here's the critical question: What legitimate business purpose is served by keeping the terms of a publishing contract or agent contract secret, except perhaps exact compensation? I've been in and around publishing for a couple of decades now, and I haven't come across such a purpose yet that did not prove to be a sham.

19 December

It's almost the end of the year. Thus it is time for a few random thoughts on The Ego Formerly Known as Prince's favorite party year. I'll reserve my thoughts on speculative fiction itself for the roundup on the reviews page. In no particular order:

• Judicial activism is alive and well and sitting on the Supreme Court. This time around, though, it's an attempt to drag the nation kicking and screaming into the 18th century, not the 21st. Back to the good old days, when the public interest was Protestant, male, propertied, and white. It's not intentional racism. But, if Justice Scalia et al. want to rely on originalist readings of the Constitution for everything, there's a wee bit of baggage that they need to consider.
• The legal environment for writers saw two major victories and several major defeats.
  • Tasini was a major victory for writers. The real victory may be far wider reaching than just electronic reuse. The Second Circuit's decision stands for the broad proposition that a writer or artist gives up only the rights explicitly transferred in an agreement. Unforeseen changes in publishing practice or technology cannot operate to divest the writer of rights that were not transferred.
  • The FTC quite properly rejected Barnes and Noble's attempt to swallow Ingram. Ingram itself was not the target, all protestations to the contrary. The only economically viable justification was to give B&N more control over distribution to independent bookstores. What B&N would choose to do with such control is not entirely clear. What is clear is that it would not be in the best interests of readers, authors, or literature as a whole.
  • On the other hand, the State Street Bank decisions allow state agencies and organizations (such as state-school university presses) to violate copyright with virtual impunity. Chavez shows exactly how this will work.
  • Congress appears to be on the verge of attempting to overrule Feist by allowing database vendors to claim copyright (or quasicopyright) protection. This overlooks the fact that Feist is not a statutory decision, but a constitutional one. It is also an improper and unnecessary step, since both state law and the Lanham Act give a database provider all the protection it needs against unfair use of databases.
  • Improper and unfair contract clauses are becoming more and more common. Recent efforts have included confidentiality clauses in scam agent/publisher contracts and broader warranty clauses that improperly make authors responsible for editorial screwups.
  • The agent "business" is becoming more reprehensible by the month. That's not to say that most agents are crooks. It is to say that the population of scam agents is increasing; some former editors and publishers who have become "agents" are now holding themselves out as "the author's friend"—which is completely at odds with their prior behavior.
    I hereby call for mandatory licensing for literary agents. If it's required for real estate agents and barbers, it should certainly be required for literary agents—aside from the question of unauthorized practice of law. Honest agents have little or nothing to fear from a licensing scheme that imposes minimum training, competence, and ethical standards.
• Harry Potter may mark the beginning of the end for territorial rights (such as "North American"). I certainly hope so. I will not bore you with the details, but the industry's continued reliance on concepts and practices developed to follow the 1909 Copyright Act is both a quarter-century out of date and facially inconsistent with the antitrust law of the US and EU.
• Politics is, despite the old adage, a dirty game. Between a politically motivated impeachment (and politically motivated response, and the politically motivated absence of response from the Arkansas Bar), the budget shenanigans, and everything else, I've come to the conclusion that we need to throw all of the bums out, and find a way to avoid replacing them with more bums. Suggestions, anyone?

22 December

Today, a lesson in obscure, unethical, but common legal tactics. Take notes for your own protection—and appropriate use in fiction. (Hint: This is one of the major problems in most legal thrillers. Or, rather, its absence is a problem.)

SLAPP, n., adj. Acronym for Strategic Litigation Against Public Participation. A lawsuit (or other litigation) filed against a complainant who opposes business interests of the filer. The most common opposition is environmental or public interest grounds. The lawsuit or other litigation usually alleges defamation and/or interference with a contract. The lawsuit or other litigation is not intended to provide a recovery for the filer; instead, the objective is to force the complainant to withdraw opposition out of fear of legal fees and/or a speculative, but possibly huge, recovery.

Probably the most common SLAPP scenario arises from an environmental or neighborhood group's opposition to some kind of development. This may be a new housing tract, an industrial zone, a prison . . . use your imagination. After the "public spirited" citizens voice their opposition, quite often in front of an administrative body (such as a zoning commission or the EPA), the developer files suit against those citizens in an oft-successful attempt to squelch them. As the citizens' defense fees begin mounting, the developer will offer to withdraw its lawsuit in exchange for the citizens' silence on the underlying dispute. (All too often, this offer is made directly to the citizens, ignoring their counsel.)

The critical test for whether a suit is SLAPP is the identity of the defendants (the citizens). If one or more of the defendants is a preexisting, recognized advocacy organization, such as the Sierra Club, the action is almost certainly not a SLAPP. SLAPP doesn't work against deep-pocketed advocates; it only works against disorganized individuals with insufficient resources to fight on two fronts. Aside: Some of these actions—perhaps even a bare majority—are legitimate, at least in the sense that the opposition to the development is not all that pure.

This is a reprehensible practice. IMNSHO, it violates both specific legal ethics provisions and the federal provisions that prohibit "needless and contumacious actions."

I've been struggling with a variant of this *%#*@!! all week. Which is why I'm in a particularly foul mood, and thus will not complete the four reviews and annual wrapup scheduled for Savage Reviews. I'm all for venting one's ire on literary crap, but I'm not going to do it unfairly.

For the ethically challenged—like attorneys who engage in SLAPP tactics—that's called "intellectual honesty."

23 December

News Flash — Deerings Plead Guilty

I'll admit it. I'm surprised by the timing on this one. I wasn't expecting any action until after the New Year.

From the Lexington Herald-Courier:

Deerings Plead Guilty

25 December

Happy Pagan Winter Solstice Celebration (Suitably Modified for the Post-Roman Population).

A short entry today. I'm just going to let John W. Aldridge speak for me on the question of whether book reviews should evaluate or market books. (You can probably guess the answer.)

[M]y position [in After the Lost Generation (1951)] and in the books I have since published was and has remained essentially adversarial, partly, I suppose, for reasons of innate perversity but also because I believe that that is a necessary position for a critic to take. Particularly in the early years of my career, when I was afire with rectitude, I took it as gospel that the first responsibility of the critic is to function as a monitor of taste, to challenge fashionable opinion, whether it is the opinion of the popular audience or of the literary establishment, simply on the ground that it is fashionable and therefore suspect. I also saw it as an essential if somewhat dangerous critical duty to perform a deflationary operation on certain writers when it seemed that their reputations had become unjustifiably enlarged.
   * * * But the curious fact about these writers, and one I discuss in some detail in the book, is that such reputations as they have acquired are mainly the products of book reviews, literary gossip, and publishers' advertising and have scarcely come under examination or been ratified by serious criticism. This has prompted me to attempt such an examination here, although it will become evident that I have only occasionally been minded to ratify.
    This, then is a study deliberately limited to the work of a selected few of the current younger writers who have received the largest amount of attention and praise. . . . If I have frequently questioned the size of that achievement, I have done so not only because I believe that some of these writers have been overrated but because the question has not been raised often enough, and that is clearly a bad thing for them and a worse thing for literature.

Talents and Technicians: Literary Chic and
the New Assembly-Line Fiction. New York:
Chas. Scribner (1992), pp. xii-xiii.

Some food for thought here. And, perhaps, some foreshadowing of my 1999 review essay, which I anticipate posting Friday.

28 December

The suspense is terrific. I hope it lasts.

— William Wonka

I couldn't maintain the suspense. I posted my 1999 In Review essay. It's just a summary of highlights and lowlights, with too few of the former and too many of the latter. You may also wish to look at the Turkey Awards. Or, if you prefer a bright and cheery outlook, maybe not.

Over the last couple of weeks, I've written almost 25,000 words of fiction; all but about 1,500 words is completely unusable. It's not bad writing, just that I discovered that the proper beginning of the novel comes at the end of chapter 2, which is just past the 23,000-word mark. It's been an interesting writing exercise, but what it has really done is gotten me ready to write the novel. I always use long chapters; I've long been irritated by adult novels that look like a "beginning reader" chapter book or nineteenth-century serialized novel, the parts of which could not exceed 2,500 words. Chapters that are too short break continuity. I prefer to break chapters only with POV shifts (and not always then), substantial off-stage time lapses, and introduction (or demise) of major characters. This is, admittedly, a matter of taste. (But not entirely; that's for another time.)

No, I will not be participating in the Novel Dare. That's not how I work. I write constantly; I just can't predict what I'm going to be writing. It's not efficient for me to impose artificial deadlines on creative work; I end up spinning wheels and worrying about meeting "mileposts" as much as doing the writing. I can churn out legal documents to deadline, but not fiction or creative nonfiction.

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