24 July 2014

Mulish Internet Link Sausages

Non Sequitur, 24 Jul 2014

Not that the last panel isn't my default anyway...

In any event, there has been a lot of copyright/IP news of late from the courts, and authors and other creators should pay some attention.

  • From across the Pond, a case demonstrates rather definitively that one of the main problems with copyright law is that it doesn't offer the remedies that some creators want... and, conversely, that some of those creators need to understand that bringing their emotional needs into a court that can't fulfill them is unlikely to favorably impress the judge. Lord of IPKats Professor Phillips provides an admirably clear summary of what the court actually said (along with a link to the decision in Lilley v. Euromoney Institutional Investor plc, et al.) that I'm going to simultaneously oversimplify and expand upon. An author's printed (print-only) articles were snatched, scanned, and put onto the 'net without his permission. The author eventually traced down the putters-onto-the-internet (there are technical reasons I'm not calling them "pirates" or "republishers" or "providers" that are buried in the actual opinion) and sued them in UK courts... for a sum of nearly £600 million. As Professor Phillips explains, this was mostly rejected — not because there was no piracy, but because the statute of limitations had run and/or the amount of the author's demand was not supportable in law.

    This exposes a critical lacuna in legal remedies for copyright, and it's a lacuna that is worse Over There: The available remedies do not include a mandated apology (not even a mealymouthed "I didn't do anything wrong, but I won't do it again"), nor an effective injunction against future misconduct that is anything but identical. I strongly suspect that at least some of the author's ire came from stonewalling — real or perceived — by one or more of the putters-onto-the-internet, which in turn was probably driven by draconian insurance-policy corporate restrictions upon admitting any wrongdoing. All of that said, it drove the author to unreasonability: He demanded outrageous sums of money because he thought that was the value of his distress, and what was necessary to punish/deter the wrongdoers. This is as much a failure of law (not of the judge) as it is of the author... which leads to the next link sausage, presenting an equal, if not greater, failure of the law and not the judge.

  • Back on this side of the Pond, Professor Tushnet notes a trademark dispute that has gotten rather out of hand because trademark law is an ass. In this instance, a candidate with the actual given name of a famous candy manufacturer (I'm not stating it here so as to avoid errant search results) used a somewhat suggestive color scheme in his campaign ads, after previous litigation had resulted in an "I won't do that sort of thing any more" settlement. But the law really is an ass here. Leaving aside for the moment the name-appropriation issue (one that I think trademark law has gotten absolutely wrong, although I'm admittedly in a minority on this), the real problem is that the candy manufacturer was not allowed to laugh it off; had it done so, figuring that this was a de minimus infringement in a context that nobody could reasonably claim was actual "competition" by a potential or actual "competitor," it would have risked the value of its mark against everyone. Trademark, unlike copyright, is a defend-against-every-possible-infringement right, in which failure to defend once provides a partial — and sometimes complete — defense for later/other infringers.

    The "real" solution here is for that candy manufacturer to fire its lawyers, fire its insurance company, fire its insurance company's lawyers, and hire the lawyers for a famous Kentucky distillery (JPG). But that's precisely the kind of big-picture solution that having IP and IP-related disputes kept in regional courts of appeals discourages... and lack of "enforced remorse" encourages, for that matter.

  • It's also what happens when transferees are given not just a license, but control beyond their creative competence. Were I the god-emperor of IP, I would mandate that part of the cause of action for any IP-related lawsuit includes a formal, written approval for that particular suit (naming both the defendant and the alleged infringement) by the natural-person creator(s) of the infringed property (or the legal, natural-person successor(s) in interest to the creator(s) after death or incapacity). But that's not the law at present... and it would be so, so sad to so thoroughly undermine the work-for-hire doctrine with such a requirement. Schade. My underlying point is this: If the transferee can't convince the actual creator that it's in the creator's best interest to stomp on the alleged infringement/infringer, the transferee needs to radically rethink what it's doing... or it's merely another bully. As y'all may have figured out by now, I don't like bullies — especially bullies whose ground for doing so is that they have more money to start with and thereby forced an economic transaction in their favor (and took more in that transaction than they could actually exploit, just because they could).
  • Finally, Professor Goldman notes the need for better paperwork everywhere. This is a cautionary tale for self-publishing authors (and small presses, and even large presses, not to mention the entire bloody "indie" music and film "movements") who persist in thinking "I found it on the 'net, therefore I can use it for anything I damned well please!" One of his preliminary points is worth quoting in full:

    If these allegations were true, it highlights the toxicity of photos used in commercial settings. In many circumstances, republication of a DVD cover or album cover should be excused by 17 USC [§] 113(c) or possibly other doctrines. Still, shame on whoever used the plaintiff’s photo for the song and DVD without obtaining ownership or a strong enough license to protect downstream republications. Distributing a song that became a cultural icon with an insufficiently exhausted copyright license for its cover creates the potential for lots of other folks to become unintended potential defendants. The result is actually quite chilling to ordinary social discourse, as it makes sense that many people would want to show the album cover or DVD cover in discussing or critiquing the song.

    (hyperlink added) As it happens, I think the "fair use" analysis (both the court's and Professor Goldman's) should be a much closer question than either the underlying opinion or Professor Goldman's discussion imply. I'm not especially fond of or persuaded by the sort of hand-waving invocations of "transformative use" usually applied in this context; Evan Brown's invocation of "newsworthiness" is a helluva lot more convincing — especially in the context of a newslike use by a blogger — and has the bonus of not allowing judges and lawyers to impose their generally defective and frequently insane conceptions of the creative process on the actual creative process.

    Judges and lawyers, in both common-law systems and elsewhere, are trained specifically that creativity is a bad thing: Instead, the lawlike objective is to prove that someone else has said before precisely what is necessary to decide the dispute in question. Even — perhaps especially — when courts have the temerity to admit that they're resolving a novel question, the resulting analysis (and the analysis of the lawyers before them) is inextricably intertwined with the language of precedents invoked in that analysis. They're not perfect at recognizing the difference between "news" and "not news," but they're a lot less error-prone than they are when trying to distinguish between "creative" and "not creative" (let alone "creative process" and "anything else"). The reflexiveness and irony of those citations are inextricably intertwined with my point...

23 July 2014

Artisan Mustard for the Link Sausages

... because It's Always Better With Snark™... or at least some analysis.

  • Congratulations to the nominees for the Man Booker Prize, awarded (after a rule change) to the best English-language novel published in the UK, without regard to the nationality of the author. Unlike US-based prizes, speculative fiction doesn't have enough cooties to be excluded from this archly literary competition... but the converse, sad to say, is not true; this nomination almost certainly kills the chances of the four works of speculative fiction at any of the speculative fiction prizes. At least, it's four works of speculative fiction among the eight (out of thirteen) that I've read thus far!
  • Just once, I'd like to see a serious (and seriously popular) comic/graphic novel and/or H'wood adaptation thereof that did not rely upon application of extreme physical force outside the boundaries of law by the purported hero/heroine as the only real solution to abuse of power and/or force by the villains. Unfortunately, I don't see it happening any time soon; when the closest one gets is Life With Archie, something is extremely wrong with the entire industry segment. That it explains why so many of us who have literary chops are perhaps unduly skeptical of graphic novels — but only perhaps — links back rather disturbingly to the preceding sausage on the platter. Those of us who are paying attention might instead quote a fictional Florida governor, "Crime. Boy, I don't know."... and thoroughly enjoy Bartlet's ripostes, both immediately and several episodes later. Which, one should add, did not involve wreaking bloody vengeance upon the miscreant (either one), but instead applied intellect and moral force.
  • And, as a corollary, RIP Dan Markel and condolences to his family.
  • Meanwhile, various legislative bodies have decided to deliberate incompletely on copyright. Over There, certain public responses have been compiled into a "report" that will not influence the final legislation... because, just like Over Here, the actual hearings will exclude those whose interests are most at issue.
  • Here's an interesting look at DRM for e-books (article links to the actual piece) that, unfortunately, neglects a full historical analysis, which would reveal that:
  • ... the ultimate problem with e-books, with personal film libraries, and with music is not copyright; it is not technology; it is a distribution system/industry structured around mercantilism (including the neofeodality and warfare!) at a time when capital returns — and, for that matter, the daily lives of the actual content providers — are judged, and even ruled, by the incompatible comparative advantage rubric. That this resembles the struggle between "artistic impression" and "technical proficiency" in competitive ice-skating is more than purely coincidental, and leads to a decade and a half of utter bollocks from people who don't understand basic math but pretend to apply conclusions drawn from bad statistical models.

20 July 2014

One Giant Internet Link Sausage Platter for Mankind

Forty-five years ago today...

16 July 2014

AmazonFail 5.1

Still not ready to do internet link sausages — whether it's PTSD from the entirely-predictable end-of-Term nonsense inflicted on us by the Supreme Court, or the side effects of the pig shortage, is rather beside the point — but I do have one more thing to say about the Amazon v. CommercialPublisheroftheWeek (currently Hachette) pricing and availability dispute.

You're all getting it wrong. Just like there is no universally correct solution to the problem of determining greatness in the arts (for example — and this resulted in a great deal of incredulity in the halls of academy, since as a Yank my hero-worship is rather presumed — I find both Moby-Dick and virtually all of Hemingway so fundamentally flawed that they're unreadable), there is no universally correct solution to the problem of determining appropriate pricing and/or distribution methods of personal copies of works in the arts. And the less said about extending the tip of the tail/tale of fiction to the mangy, flea-ridden, undernourished dog of all of publishing, the better.

On the one hand — from a strictly efficiency-is-good economic point of view — having a uniform structure makes sense. Too, a uniform structure and paradigm also reduces (or at least cabins) opportunities for outright fraud.1 But "uniform structure" does not mean "uniform terms," especially in a day of easy-to-manipulate parameters in computerized accounting systems. Just because e-books might be sold to endusers2 does not mean that every e-book needs to be, or should be, on the same terms. Hell, even the most rigid proponents of pricing admit that sometimes there are "special sales," and sometimes Novel A will have a different list price/selling price than Reference Book B (or even Novel C or Short Story D)! Maybe — just maybe — we should admit that more than just the selling price varies for noncomparable works.

The entire argument works as an argument (not even as a lemma, let alone a demonstrable theorem) if, and only if, one assumes that the characteristics of Amazon's market exactly match the corresponding characteristics of CommercialPUblisheroftheWeek's offerings into that market. Any variance at all between them indicates that a rigid, uniform method is inappropriate... except, that is, if one buys the Coase Theorem in its entirety: Not just the assumption of zero transaction costs, but the neglect of translation costs (the cost of converting one form of capital, such as intellectual property, into a different form, such as copies of books) and efficiency as a normative (and not merely descriptive) value. And the less said about the collective-action problem, the better.3

In short, this is the wrong argument. It has little or nothing to do with the future of e-books. It has everything to do with the time-sliced financial reporting (not even fundamental economics) of existing distribution methods. And for that reason, both Amazon and CommercialPublisheroftheWeek should lose... because a victory for either is a loss for both their suppliers and their customers. It's just game theory and the math of stochastic processes, guys (even if HTML doesn't lend itself well to "showing my work").


  1. If you think that the concept of "net receipts," with its rather vague definition, as found in current publishers' contracts concerning e-books is never going to lead to fraud, I could point you to several active disputes regarding precisely that. "Net" is in the eye of the beholder... or stockholder.... Plus, that would be going against three centuries of tradition regarding royalty statements!
  2. And it's a sale. Even if Vernor and similar cases had been correctly decided, and even if the terms of transfer were enforceable — neither is correct — those are for tools directly used in the creation of other works and material, not for static content. If nothing else, an e-book sale (or, for that matter, an MP3 sale) is a sale to the end-user, notwithstanding the economic-terms fight between musicians and music labels (which is about contract language, not statutory interpretation).
  3. I should also note that Professor Solum's numbers in his railroad hypothetical don't work correctly; the equilibrium point for the farmer's contribution is $25, not $50, because at $25 both parties will be avoiding $75 in potential costs. But that's for another time; sadly, his illustration of the Coase Theorem is exactly how neoconservatives and tort-reformers think about the problem...

13 July 2014

AmazonFail 5.04 RC3

It's been a busy week, among all of the stuff I can't talk about and the heartbreak of remoras, so no sausage platter today. Instead, I want to reflect a bit on the rhetoric of the Amazon v. Hachette saga, and its context, and together what they reveal... and attempt to hide.

There is a common assumption — rhetorically, psychologically, propagandistically — shared in almost all of the rhetoric surrounding this particular dispute, even among author groups. The rhetoric is one of ownership-and-sales, and it assumes that either Amazon owns the unfettered right to do what it damned well pleases with its property, or the publisher (Hachette, in this instance, but the Wormyfruit settlement with the publishers will give the other children a turn at the top of the slide) owns the unfettered right to do what it damned well pleases with its property. Guess what? It's not their property... or at least it is not their property as to trade books.1

They're arguing about other peoples' property, and how to earn money for themselves from it while giving as little as possible to the actual owners. It's the cannibals arguing over who gets to put the authors in the boiling pot for dinner, and who gets the biggest share afterward.

Meanwhile, the authors generally have let them do so. The Authors' Guild (to name only one of the problems) has actually hurt its own position — let alone what its position should be — every time it has opened its mouth. The Authors' Guild, being based in New York and drawing its staff from locals in New York, has become at least in part coopted by the culture of its adversary: Commercial publishing, also based in New York.2 It's one thing to be cautious because the exact terms being discussed by Amazon and Hachette are not public knowledge; it's another thing entirely to refuse to give both misbehaving children a time out to calm down. And I think I'm insulting a lot of children on the playground by comparing this particular set of corporate officers to children: After all, children do learn, they're generally quite forgiving, and they're generally acting on impulse instead of as part of a long-thought-out plan for personal benefit at the expense of others. The exceptions become the centerpieces of horror novels.

Ultimately, the issue is going to be resolved without regard to long-term consequences. Like that's a surprise.


  1. Do not get me started this morning on work-for-hire in trade publishing. Most WFH agreements in trade publishing — and I'm explicitly including graphic novels/comics in that category — are not really works for hire. The Copyright Act allows only a very narrow subset of works to qualify as freelancers' works for hire... and "book-length work of fiction" cannot be shoved into any of those categories, nor can almost any trade nonfiction.
  2. That commercial publishing should be a partner and not an adversary is an issue for another time, I'm afraid — and it's an ugly descent in the actual history of commercial publishing.

06 July 2014

Breaching the Boundary Conditions

Once again, too busy to make sausages, so these may be of even-dodgier-than-usual ingredients...

  • Just as there's something wrong with publishing cookbooks deep-fried in testosterone and endorsed by poor losers (hello, Food Network!), tech isn't going to become more gender-inclusive with sparkly pink brochures "aimed" at geeks who don't have a Y chromosome. This is what happens when you let marketing dorks apply their general principles that (supposedly) work on everyone to specialized markets — and even not-so-specialized markets. The less said about how successful the dorks actually are, the better...
  • Power — economic, political, cultural — is merely another form of gravitational force, with perhaps some different constants ("perhaps" because nobody has really figured out how to measure it yet). This leads one to wonder whether the EU's latest response to Google and Amazon has as much chance of success as King Canute ranting against the tides. All the monopolist ventures are trying to do is emulate government monopolies... right? (<SARCASM> tag omitted as redundant.)
  • And that leads to the current kerfluffle between Amazon and Hachette over e-book pricing availability, etc. In many ways, it's a struggle I really want to see both of them lose. Unfortunately, there's a lot of rhetoric out there that takes one side (PDF) or the other, often to the long-term disadvantage of those taking sides (who usually don't think things through well enough).

    • Amazon is in the wrong by punishing both the captive, ultimate vendors (the authors) and its own customers, by focusing its conduct on a fellow oligopolist and that fellow oligopolist's visible pricing practices without regard to ripple effects. Whether it has a conscious intention of doing so or not, it is engaging in practices perilously similar to predatory pricing. The legal definition of predatory pricing has ossified into requiring an actual loss to make a transaction potentially predatory. That's insupportable as theory, and assumes equilibrium (the math is there, economists: it's called "quantum thermodynamics" and "reaction profile analysis"). It's easier to go after the whole herd at once if you weaken it by drastically limiting its moneyfood supply... and that's why predators in the wild never do so, because they know that they're actually dependent upon the herd. Only mindless, malfunctioning parasitic microorganisms that can't recognize codependence act like that. The rejoinder that "But Amazon is developing its own internal replacement food supply content providers through its self-publishing programs" isn't going to cut it in the long run, because the measures of success remain tied to those of commercial publishers.
    • Hachette is in the wrong because it is false-flagging the controversy over its visible pricing practices as making it the "victim" here, while ignoring its own perfidy farther up the chain as a monopsonist engaging in exactly the same price-fixing behavior against its authors. As I've remarked before, it seems astounding that with the diversity of product lines, financial and managerial structures, and age cohorts in commercial publishing, everyone converged within two years on a nonnegotiable 25%-of-net share to authors for e-books... astounding, that is, if one assumes competent and noncorrupt management in the publishing industry. The less said about the typical compensation paid on print titles, the better — the problem is not the lack of evidence of unlawful collusion, but the statute of limitations and the egregious cooperation of the agent community. And that's just one aspect of Hachette's (and its "competitors'") hypocrisy in this particular controversy.

    This is, ultimately, an inevitable result of an investment system that (a) substitutes the Β statistic (a measure of variability of return that works only when all returns are positive) for actual considerations of "risk" (that is, the possibility that returns might be negative — a loss, and possibly total — for specific transactions), (b) promotes both inside and outside of corporations based upon how well middle managers adapt to and massage the appearance of their responsibility for favorable Β (whether or not they're consciously doing so), and (c) accepts — even celebrates — the unproven lemma of linear scalability, aka universal economies of scale. Remember the American automobile industry in the 1960s and 1970s? Like that.

    Sometimes high-falutin' theory does have clear application to current matters. This is one of them: I reject "efficiency" as a normative, as opposed to merely descriptive, value in financial and economic systems, based on a theoretical examination of nonequilibrium systems. And I dare anyone who actually looks at data to characterize any part of publishing — let alone retail distribution of trade works — as even resembling equilibrium; indeed, the whole point of publishing is to exploit, and even celebrate, informational and expressional disequilibrium! Commercial publishing is the ultimate expression of Maxwell's Daemon as not just theory, but a method of doing business.

    Taking sides in this particular controversy resembles cracking down on the Bloods while leaving the Crips, the Latin Kings, the Outlaws, and so on to go on with their own thuggery, merely because one recent member of the public caught in the crossfire was "obviously" the victim of a Blood-fired bullet. These gangs aren't the "friendly" Sharks and Jets of West Side Story.

If there's a unifying theme here, it's the mistaken — and frequently self-defeating — application of purported "laws" beyond their boundary conditions. Virtually everything has a boundary condition beyond which the basic statement of the "law" does not apply, even by its own terms: Division by zero, "thou shalt not kill," "treat others as you would wish to be treated," and negative externalities are only excrutiatingly obvious examples. We need to pay better attention to this problem.

01 July 2014

How to Survive in a Legalist-SciFi Universe

I'm not going to spend a lot of time on Hobby Lobby (PDF) itself. It is a profoundly flawed decision based upon a profoundly flawed statute, both of which desperately attempt to evade examination of their scifi foundations (and that's "scifi" as in "bad 1950s B-movie directed by Ed Wood," not "breathtaking work of imaginative fiction by Ursula K. LeGuin"; it's not a compliment)... and perhaps even their common foundations in the history of slavery in the United States.

On one hand, we have a reification worthy of Frankenstein: The corporation — or, at present, certain kinds of corporations, via a distinction unsupported in the corporation law of the relevant states — is now capable not just of suing and being sued, but of forming and holding religious beliefs sufficiently conduct-related to invoke the Free Exercise Clause of the First Amendment. Leaving the meaning of "free" for the past (and carefully ignoring my own history with that corporation in the 1980s when I was stationed in its hometown), Hobby Lobby has two legalistic-scifi implications that should disturb everyone.

Justice Alito's decision essentially amounts to reverse veil-piercing. The corporate formalities that justify limited liability for the shareholders have been reduced to the equivalent of an osmotic membrane, because now the corporation in question has taken on the very human characteristics of its controllers/owners — characteristics utterly irrelevant to its legal status, except as declared in this matter. The key question is this: Is there a principled reason that this must be a one way osmotic membrane, thereby restricting the limited liability of the owners? Consider, for a moment, that such a "Christian" corporation operates at full tilt on Fridays and Saturdays, but not at all on Sundays... and what that implies about its treatment of potential Seventh Day Adventist (sabbath is Saturday), Orthodox Jewish (sabbath is sundown Friday to sundown Saturday), and Muslim (sabbath is Friday) employees — and customers. More to the point, if the veil has been pierced to the corporation's benefit in allowing it frei und kostenlos anwendungen of its owners' religious beliefs — however firmly held — does that not expose the owners to personal scrutiny, and even liability, in the opposite direction? If so, it seems to me that the purpose of corporations (pooling of capital to enhance economic activity, incentivized by limiting risk via liability to the amount of the investment) has been rather thoroughly, and probably fatally, undermined. One must also ponder whether Hobby Lobby might apply to a hypothetical closely held foreign corporation that expresses firmly held religious beliefs.

And there one finds the far more disturbing implication: Not so much "personhood" as "citizenship." That's right: Paper people have more rights under the reasoning and rubric of Hobby Lobby than do brown people not born in the US. Hobby Lobby, after all, has free access to the courts to enforce its religious beliefs against the State. It can't be deported, have its assets confiscated, or be subjected to the whims of the Sheriff of MaricopaNottingham primarily related to its state of incorporation nation of birth. Again, I'm looking for a principled distinction that does not reduce to "but that's different;" the colors "blue" and "red" are different, but not so much to the colorblind. Unfortunately, I can't find it anywhere in Justice Alito's reasoning... or in the corresponding reasoning of those who oppose immigration reform. It all revolves around defining who is entitled to fundamental respect as a human and citizen, and may exercise the privileges or immunities of citizens of the United States... or be free of ownership by other persons.

In that respect, I think Hobby Lobby tries desperately to pretend that over two centuries of American history simply haven't happened, for the benefit of a set of very, very Caucasian citizens indeed. That this was not a conscious aspect of the Court's decision (or, indeed, of the litigation itself) merely takes it out of Jim Crow territory... and says that although the government-agency bus service can't discriminate, if the bus system gets completely privatized the answer might be different. For those who claim it couldn't go that far, I again ask for a principled distinction beyond "it's different."

26 June 2014

Smoked Link Sausages

I've really struggled to refrain from "Somebody is wrong in the 'net, and I must correct them!" regarding a couple of recent issues that have hit the speculative fiction community in the last week. Hint: No matter your purported authenticity or academic-in-an-unrelated-field qualifications, you should carefully read someone's comments before spewing outrage, ideology, and absolutismus, and consider that maybe — just maybe — the qualifiers in those comments were intentional and meaningful. Especially when you're playing in that someone else's area of professional expertise and/or denying the authenticity/applicability of that other individual's personal experiences... an irony that seems to escape most commenters in those areas.

  • Speaking of the need to refrain from speaking without paying attention to context, I offer the following quotation from this morning's Supreme Court decisions without further comment:

    Of course we do not hold that “[s]peech restrictions favoring one viewpoint over another are not content based unless it can be shown that the favored viewpoint has actually been expressed.” We instead apply an uncontroversial principle of constitutional adjudi­cation: that a plaintiff generally cannot prevail on an as-applied chal­lenge without showing that the law has in fact been (or is sufficiently likely to be) unconstitutionally applied to him. Specifically, when someone challenges a law as viewpoint discriminatory but it is not clear from the face of the law which speakers will be allowed to speak, he must show that he was prevented from speaking while someone espous­ing another viewpoint was permitted to do so. Justice Scalia can decry this analysis as “astonishing” only by quoting a sentence that is explicitly limited to as-applied challenges and treating it as relevant to facial challenges.

    McCullen v. Coakley, No. [20]12–1168, slip op. at 18 n.4 (26 Jun 2014) (Roberts, C.J.) (citations omitted).

  • There has been a lot of other copyright news in the last couple of weeks aside from the HathiTrust fiasco. (That HathiTrust is a fiasco is the fault of multiple players — Congress, the parties, the bar and judiciary of the Second Circuit, and outside commentators and activists all share some blame.) I'll be delving into several of these in more detail as I see fit; for now, just consider Sherlock Holmes, copying levies in Europe, attacks on misuse of the work-for-hire doctrine that do not go nearly far enough (IMNSHO the doctrine is unconstitutional as applied to freelancers... and if not unconstitutional, it is inconsistent with treaty obligations), and last but not least Aereo. And that's aside from some interesting activity in other courts and elsewhere, not to mention the curious decision in Alice Corp. I'm not behind on my reading so much as behind on my blawgging.
  • Meanwhile, the AmazonFail 5.04 continues to provide endless amusement if your sense of humor is as sick as is mine and you're sufficiently cynical. Bluntly, this is a fight they should both lose... except that the fallout will be unacceptable. It's actually a result of the 1566 Licensing Act, which improperly conflated the editorial, the reproduction, and the distribution functions, largely in the name of censorship, and has also resulted in blatant plans to violate antitrust law that will get precisely no attention from the relevant enforcement agencies.

22 June 2014

HathiTrust
V. Trees

 

D. Nobody Here to Hear the Deadfall

Suing HathiTrust (in essay form)
Proposed Settlement With Google (in essay form)
Suing Google (in essay form)

 

The most-important aspect of the Second Circuit's opinion — and one for which there is no real counter — is its refusal to decide the fate of orphan works. On the way there, the Court takes a very short detour into the preservation argument and rightly notes that the entire argument is not amenable to decision; it is neither ripe (having come to pass) nor imbued with either immediacy or standing.

The record before the district court does not reflect whether the plaintiffs own copyrights in any works that would be effectively irreplaceable at a fair price by the Libraries and, thus, would be potentially subject to being copied by the Libraries in case of the loss or destruction of an original. The Authors are not entitled to make this argument on behalf of others, because § 501 of “the Copyright Act does not permit copyright holders to choose third parties to bring suits on their behalf.”

Because the record before us does not reflect the existence of a non-speculative risk that the HDL might create replacement copies of the plaintiffs’ copyrighted work, we do not believe plaintiffs have standing to bring this claim, and this concern does not present a live controversy for adjudication. Accordingly, we vacate the district court’s judgment insofar as it adjudicated this issue without first considering whether plaintiffs have standing to challenge the preservation use of the HDL, and we remand for the district court to so determine.74

That's just foreshadowing of the orphan-works abstention. The Court offers two independent reasons for refusing to decide anything relating to orphan works: The absence of standing, as already discussed, and a lack of ripeness. Here, though, the Court subtly undermines both this decision and most others related to ripeness with its analysis.

As indicated above, it is far from clear that the University of Michigan or HathiTrust will reinstitute the OWP in a manner that would infringe the copyrights of any proper plaintiffs. If that occurs, the Authors may always return to court. Suffice it to say that “[t]he mere possibility of future injury, unless it is the cause of some present detriment, does not constitute hardship.”75

With due respect, this is incorrect, because it leaves off a critical qualifier... and it's a critical qualifier that applies to this matter. The critical qualifier is whether the resumption might, or might not, result in either criminal prosecution or an infringement of civil rights that would independently justify injunctive relief (not mere damages). There are more voting-rights and freedom-to-assemble cases than one can shake a stick at illustrating this — some quite recently, and some arising in the same city as the Second Circuit sits.76 Whether assertion of copyrights, with its potential criminal penalties77 and inherent First Amendment implications, falls within this is a much closer question than it might seem. The Court would have done better never reaching ripeness and instead relying only upon standing. The Second Circuit did correctly evade the question, but this part of its rationale for doing so fails.

As a policy matter, though, these are the two areas at issue that most require a decision. As Judge Chin (now on the Second Circuit) remarked in the corresponding case against the publishers, that's a matter for Congress.78 And pardon my cynicism, but that's not going to result in a quick, a workable, or a fair resolution. As I have remarked before in other contexts, actual creators' interests — presuming that they are at all uniform — will be drowned out by lobbyists and other corporate interests. Don't kid yourselves: The 'netizen movement is much better organized (and much better funded) than even discrete subsets of creators that actually have uniform interests. Combine this with the agency capture of the Copyright Office and I find little reason for optimism that there will be a nuanced solution... or possibly even one that passes constitutional muster.

In the end, the deadfall and pulped trees may or may not have generated a sound, because there was no court with jurisdiction to hear it. Any sound generated is far from final and is being caused by lumber poachers and parties with only a dubious and partial title to the forest in the first place.


  1. Slip op. at 31–32 (citations omitted).
  2. Slip op. at 34 (citation omitted).
  3. See, e.g., Irish & Lesbian Gay Org. v. Giuliani, 143 F.3d 638 (2d Cir. 1998); see also, e.g., Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, Inc., 515 U.S. 557 (1995); Forsyth Cty. v. Nationalist Movement, 505 U.S. 123 (1992); United for Peace & Justice v. City of New York 243 F. Supp. 2d 19 (SDNY 2003).
  4. 17 U.S.C. § 506(a)(1)(B), (C).
  5. Author[']s Guild, Inc. v. Google, Inc., 770 F. Supp. 2d 666, 675 (SDNY 2001) ("The questions of who should be entrusted with guardianship over orphan books, under what terms, and with what safeguards are matters more appropriately decided by Congress than through an agreement among private, self-interested parties.")

17 June 2014

HathiTrust
V. Trees

 

C. The Underbrush

Suing HathiTrust (in essay form)
Proposed Settlement With Google (in essay form)
Suing Google (in essay form)

 

The Second Circuit also dealt with two other theories of fair use in the HathiTrust opinion. One of them it got outright incorrect, but to no effect: There was an alternate, specific, statutory privilege. The other one... not so much. Of anything.

The easy discard is the Second Circuit's analysis of "access to the print-disabled" as a fair use. The Court makes the following admission of an "oopsie" right up front: "In light of our holding, we need not consider whether the disability-access use is protected under the Chafee Amendment, 17 U.S.C. § 121."71 Unfortunately, this error opens the door for further review, because the Court (and the parties) ignore the legal interpretation lemma that a specific term overrides general ones — that the specific privilege accorded by the Chafee Amendment would have been relevant, and thus needed to be considered, regardless of the fair use decision. Indeed, this decision would have been more helpful to everyone had this aspect been founded on the specific statutory provision regarding blind and disabled access. Unfortunately, the parties — probably because they were afraid of diving into the seldom-interpreted waters of the Chafee Amendment, an area seriously undermined because nowhere does the Copyright Act define what, or who, qualifies as a "library" — blew it and never squarely presented the issue below, meaning that it wasn't directly ruled upon by the trial court.

Then, on top of that, the Second Circuit's fair-use analysis of access to the print disabled is rather dodgy... and I say that even though I think that it (narrowly) reaches a the right result. The primary problem appears in its analysis of the first fair use factor, in which it backs away from "transformative use" as the paradigmatic instance of fair use.72 The analysis essentially skips the second and third factors and discounts potential markets for the fourth factor without examining why the market appears so limited: Primarily problems with the distribution system, not with anything else. And lurking behind is the fifth fair-use factor. As the Court of Appeals acknowledges, the problem is not with whether the authors make the material available; it is whether the publishers do... and if the experience this century with electronic books demonstrates nothing else, it is that publishers are remarkably poor at anticipating and filling actual market needs.73

Turning to the last area, the Second Circuit quite rightly punts the "preservation of works" argument as not ripe. Bluntly, the parties did such a poor job of investigating this issue — let alone presenting admissible evidence on this issue — that even if it was ready for decision and not merely speculative, it would not justify summary judgment. We'll leave aside, for the moment, that it's a bad theory to start with: There is no realistic probability, given print runs for the works at issue, that a library will neither have in its own collection nor be unable to borrow from another library copies of these works for the span of their copyrights. There are editions of these works either still in print now, or having been printed since the advent of low-acid papers, that will outlast their copyright terms; indeed, even those printed on older paper will still last until expiration of US copyright (at latest, approximately 2055 thanks to the changes in printing technology and practices).


  1. Slip op. at 31 n.7 (hypertext added).
  2. Slip op. at 27–28.

    We'll leave aside for the moment that if this analysis were to be applied to the text-search issue discussed in the slip opinion at 18–19 (and part B above), one would reach a different result: Not a result that rejects fair use, but one that denies summary judgment on fair use for an ill-defined, nonrepresentative subset of all literary works. That is, we're back to civil procedure again. Summary judgment may be granted only if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law". Fed. R. Civ. Proc. 56; see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317 (1986); see generally Suja A. Thomas, Summary Judgment and the Reasonable Jury Standard: A Proxy for a Judge's Own View of the Sufficiency of the Evidence? 97 Judicature 222 (2014). Indeed, Professor Thomas's analysis exposes the reality of what appears to be going on here: A group of judges — and lawyers — evaluating evidence and imposing their own preferences without first-hand knowledge of how the creative process for broad categories of copyrightable works actually works, consistent with any of the Constitutional mandate, treaty duty under the Berne Convention, or implementing statute. In short, while charged with (perhaps) deciding, they're not competent to do so. Bleistein v. Donaldson Litho. Co., 188 U.S. 239, 251 (1903) ("It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits").

  3. Then, too, the publishers are not parties for this suit. We have no idea whether the reason that the publishers have not made more works available for the visually disabled relates to the market for those works... or internal publisher evaluation of the profitability of its particular means of meeting that market. (Well, we do, but it's not in the record.) Then, too, the parties and Court do a remarkably poor job of determining whether the 78 works at issue are so available from the publishers (hint: a substantial proportion are), relying upon grandiose general statements made with little factual backup... or acknowledgement of the Library of Congress's own parallel programs.