24 August 2014

The Health Department Recommends You Avoid This Platter of Internet Sausages

... because it was prepared by a "chef" who spent the last week sick.

  • And getting a little bit shaken up. That was an interesting 10-15 seconds in the middle of the night, but the Shark Nest is about 60km from the epicenter of that tremor. That was also considerably less annoying than the second Saturday night power outage in a week several hours previously.
  • The local monopolist BigBookBoxStore chain continues to get more disturbingly unconscious about its racism. The counts yesterday:

    Hillsdale StoreNew Teen RomanceNew Teen Science Fiction & Fantasy
    Titles in Endcaps5987
    Humans Depicted on Covers6384
    Noncaucasian Humans Depicted on Covers01
    Book-Inferred Noncaucasian Demographic0%1%
    San Mateo County Actual Demographic (2013 Census Estimates)36.7%
    Not acceptable.
  • What utter moron at the NFL Network approved a campaign song associated with an utterly spoiled 1% brat (video) as being appropriate for "mere" popular fandom? If you don't remember it, here's the original (video).

17 August 2014

In London So Fair

... I was not. At least not this past weekend for WorldCon. I might not have been all that welcome, anyway.

That said, congratulations to the recipients of the Hugos. They don't deserve to be tarred with the brush of corruption, but they probably will be.

And further, grudging congratulations to the paying electorate for gettings its collective head out of its collective rectal orifice for at least long enough to reject the attempted partisan/ideological manipulation of the awards. Being competitive with — and, more appropriately yet for the most repulsively bigoted of the authors, losing to — "No Award" seems just about right (see pages 1 and especially 3). Of course, the nomination statistics are revealing, too...

11 August 2014

The More Things (Appear to) Change...

Once upon a time, I remarked on the disturbing tendency of advocates of self-publishing ("boosters") to, well, lie about the track record of self-publishing. As it's now been a decade, it's time to revisit that posting... unfortunately.

For printed books, nothing has changed for the better; if anything, boosters of POD-only self- and vanity publishing have gotten even more deceptive in their disturbingly generic approach. Probably the worst offender — and now nearly a monopolist — is Author Extortion$olution$, which is now a wholly owned division of one of the Big Howevermanythereareleftbythetimeyoureadthis commercial publishers in NYC: Penguin. (Which is, sad to say, essentially a wholly owned division of another media conglomerate itself.) In a sense, A$$ is the reductio ad absurdum of almost everything that is wrong with the business model of commercial publishing in the twenty-first century... combined with almost everything that is now and has been wrong with the business model of vanity publishing since the early eighteenth century. The considered advice that I have is to stay away. Stay away for original works; stay away for "affiliate" programs through purported "writers' organizations" that are making more money from your "publishing agreement" than you are; stay away from A$$'s competitors, who are merely slightly less bad deals. It's actually unfair to compare these vanity publishing con artists with actual self-publishing vendors (key test: if the publisher/vendor has legal title to the individual copies as they come off the press — whenever they actually do — it's not self-publishing). Unfortunately, thanks to the rapacious venture-capital approach that took over in about 2006, that's really all that's left...

...except, that is, for the boosters, who sound more and more like convicted felon Kevin Trudeau every time I see one of their pitches for their "self-help" conferences and "self-published" books (that, with only one meaningful exception, are actually distributed through commercial publishing channels, which should tell you everything you really need to know). I continue to stand by my 2004 analysis, which was remarkably generous to the purported "self-publishing success stories" debunked there. For example, I didn't point out that three of the purported "success stories" were successful only through commercial publishing... and went through bankruptcy with their self-publishing efforts. I didn't point out that two of the other purported "success stories" later repudiated both self-publishing in general and their own experiences with it (and one of them even repudiated the work in question). I didn't point out that one of the other purported "success stories" has long run a bookstore stocked almost entirely with commercially-published books — even in the noncommercial category of his "success story."

Things are slightly different, however, concerning electronic self-publishing. I'm going to pause for a moment while you consider Victoria Strauss's restrained, eminently reasonable, absolutely essential evaluation of electronic self-publishing in mid-2014. OK, you're back? You've actually read Victoria's piece (instead of just bookmarking it for "later," which usually means "never"), and in particular carefully determined that you're not kidding yourself? The key thing to remember about electronic self-publishing is disturbingly simple:

Some grade-school phenoms get rich in the NBA, but that doesn't make the expectation of future NBA riches a good business plan for even a highly talented seventh-grader.

Indeed, if one really wants to understand this entire phenomenon, one can do worse — much worse — than spend four hours watching one of the ten best films of the 1990s and thinking about its shocking parallels to publishing, and especially to publishing fiction. There quite possibly are (and almost certainly in the future will be) some exceptions... but the existence of such exceptions does not make them valid models for a business plan, any more than that of Arthur Agee and William Gates, Jr. in sixth grade.

Commercial publishing is even more insane than it was a decade ago. The up-front cash requirements are now vastly lower for electronic self-publishing than they ever were (or will be) at any stage of print self-publishing. The hidden vanity publishing deal remains just as dangerous (and, sad to say, prevalent), and the perfidy of commercial publishers is better known. Electronic self-publishing boosters provide a much higher proportion of well-meaning, but not well-considered or -taken, advice, from people who think that somehow pasting some statistical language on top of invalid data sets will provide meaningful guidance for persons who are — almost by definition — not inside those data sets; perhaps that even outnumbers outright con artists. So far — and once upon a time (the 1980s and early 1990s), there was less spam in my inbox for snake oil internet p0rn dubious pharmaceuticals, too.

This leads to the most-important question that any not previously commercially published author who is considering electronic self-publishing should ask... and honestly answer:

Do I have one or more follow-on e-books or ancillary products of comparable nature and quality that will be ready for publication/exploitation within three to six months after I make this one available for sale to the public?

If you can't answer that "yes," that should be a big hint that you're not ready to make a planned financial success out of electronic self-publishing. Almost without exception, the non-deceptive "successes" in electronic self-publishing have come from authors with multiple, comparable products all made available within a short period of time. Some of these are republication of back catalogs by commercially published authors; others are first publications in electronic form, but at tight intervals to satisfy internet-paced memes and fandom; still others are tied to non-publishing events and circumstances (such as personal appearances). Indeed, I've been unable to verify any exceptions, although I'm still withholding judgment on several candidates.

If there's a short version of this post, it is this: Don't quit the day job until you've already proven that you actually can quit the day job. That's the same advice that authors should have heard (but too often have not heard) since the early eighteenth century; the context and details have changed, but the conclusion has not. Similarly, my conclusions regarding unethical boosterism of self-publishing haven't changed in the last decade, either — a few of the details have changed, but the primary question still needs to be "What's in it for the person offering me this advice?" On occasion, one really will find an altruist. More often, one will find a misguided booster... or outright con artist... and distinguishing among the three is a matter of degree, intent, and the dark arts of certain professions that tend to make for complete disjuncture from the writing life.

04 August 2014

The Windmills Won (Fortunately)

If you have a dubious copyright claim, don't assert it in the Seventh Circuit... and ensure that your position does not "border[] on the quixotic" or "the frivolous." In particular, you should seriously rethink your strategy if the following sounds anything like you:

The Doyle estate’s business strategy is plain: charge a modest license fee for which there is no legal basis, in the hope that the “rational” writer or publisher asked for the fee will pay it rather than incur a greater cost, in legal expenses, in challenging the legality of the demand. The strategy had worked with Random House; Pegasus was ready to knuckle under; only Klinger (so far as we know) resisted. In effect he was a private attorney general, combating a disreputable business practice—a form of extortion—and he is seeking by the present motion not to obtain a reward but merely to avoid a loss. He has performed a public service—and with substantial risk to himself, for had he lost he would have been out of pocket for the $69,803.37 in fees and costs incurred at the trial and appellate levels ($30,679.93 + $39,123.44). The willingness of someone in Klinger’s position to sue rather than pay Doyle’s estate a modest license fee is important because it injects risk into the estate’s business model. As a result of losing the suit, the estate has lost its claim to own copyrights in characters in the Sherlock Holmes stories published by Arthur Conan Doyle before 1923. For exposing the estate’s unlawful business strategy, Klinger deserves a reward but asks only to break even.

We note finally that the estate was playing with fire in asking Amazon and other booksellers to cooperate with it in enforcing its nonexistent copyright claims against Klinger. For it was enlisting those sellers in a boycott of a competitor of the estate, and boycotts of competitors violate the antitrust laws. The usual boycott is of a purchaser by his suppliers, induced by a competitor of the purchaser in order to eliminate competition from that purchaser, as in the leading case (old as it is) of Eastern States Retail Lumber Dealers’ Ass’n v. United States, 234 U.S. 600 (1914); see also JTC Petroleum Co. v. Piasa Motor Fuels, Inc., 190 F.3d 775, 777–79 (7th Cir. 1999). This case is different, in its facts but not in economic substance or legal relevance, because the boycotters enlisted by the Doyle estate were buyers from the victim, rather than sellers to it. But functionally they were suppliers—suppliers of essential distribution services to Klinger.

It’s time the estate, in its own self-interest, changed its business model.

Klinger v. Conan Doyle Estate, Ltd., No. [20]14–1128 (PDF) (7th Cir. 04 Aug 2014), slip op. at 6—7 (op. on fees) (citations in original, hypertext added).

I think Judge Posner is actually too nice to the Doyle Estate's business model: Depending upon the degree of force used, it's better known as either a "shakedown" or a "protection racket." This sort of nonsense actually makes enforcement on behalf of those who have legitimate claims significantly more difficult: Demand letters get roundfiled along with the frivolous claims... and the frivolous defenses. One corollary — the invalid assertion of work-for-hire status — may get a Supreme Court hearing in the near future, and will hopefully be treated with equal disdain (leaving aside the constitutional question of whether Congress — or even a court — has to power to redefine the term "author" as it appears in the Constitution (Art. I, § 8, cl. 8) to mean "someone who is definitely not the author," as that issue appears not to have been raised thus far).

Counsel is not obligated to pursue every claim that a client believes it has regardless of merit. Counsel is obligated, as an officer of the court, to pursue only meritorious claims or defenses... and is supposed to tell the client when a claim or defense has no legal merit and refuse to present the nonsense. Even if a claim or defense has "merit" as a negotiating position, it doesn't belong in court. Any "bordering" on the quixotic in this case was on the wrong side of the border, and after Dastar the border was a couple of counties the other way.

03 August 2014

Timeline

Forty years ago, the US got its only unelected President (thus far, anyway) when Nixon resigned rather than be convicted at his impending trial on impeachment. Too many people forget that Nixon probably had better ethics than had his elected Vice President, Spiro T. Agnew; and too many people take the peaceful transfer of power for granted. Unfortunately, we're still paying for everything in, around, and related to Watergate: Our current difficulties with the NSA are just a really bad hangover.

Fifty years ago, the US got itself inextricably committed to a really bizarre and indefensible variant on the "domino theory" through the Tonkin Gulf fiasco, in which nobody really wanted to know the truth. But that's nothing compared to...

...the ultimately suicidal arguments of Europe's upper classes, just about a century ago. Unfortunately, those upper classes insisted on taking the rest of the continent (and some of the rest of the world) with it.

On the whole, I think this validates the idea that early August is for vacations, and not much else.

01 August 2014

The Popguns of August

Blawgging is a much lower priority than recovering from back spasms, I'm afraid... especially when it takes three days to present this particular platter.

  • I'm shocked — shocked, I say — to find further efforts by the music industry to screw the artists. Mark this date in your mental calendar; some time between six and eleven years from now, you'll see a similar issue arise with print publishing.
  • Many large cities have "arts districts" — usually former industrial or heavy-commercial districts filled with somewhat rundown buildings and attractive to artists because (a) the rents are something approaching affordable and (b) there aren't a lot of skyscrapers or traffic jams, two of the big distractions. Sometimes, though, landlord and speculator greed gets in the way of the community, and things begin to fall apart.
  • Nature walks are probably more appropriate in rural Germany than just off the Baltimore-Washington Parkway, or in semirural McLean, Virginia... although these nature buffs would probably have more success near the latter. If this didn't sound like the setup for a classic Python sketch, though, it might be taken a bit more seriously.
  • The UK's copyright system is moving toward something resembling reality, with new privileges for private copying, parody, and quotations that take effect on 01 October 2014. The "private copying" privilege (what they call an "exception" in the UK) is essentially the right to make a backup copy of something that you own, and explicitly does not extend to anything you don't own, without adding a private-copying levy to the price of either the copyrighted material or to blank media. The parody privilege remains extremely problematic, as the UK's lack of a sufficient embodiment of the US's First Amendment rather seriously undermines the scope of its parody privilege; the particular example cited by the IPKat, for example, would contradict our 2Live Crew doctrine (and, further, improperly conflates the performance-copyright aspects with the songwriting-copyright aspects, but that's a quagmire in any event). There's a similar, but less egregious, problem with the fix for quotations.
  • The Amazon v. Hachette fiasco consists largely of arguing over which entity gets what proportion of the angels found on the head of a pin, assuming all the while that there are (a) a pin, (b) angels, and (c) a means of counting angels that leads to a viable result. I can't do anything about (a) or (b), but I strongly suggest that the implications of this fine thought-piece on valuing the commercial contribution of design to a product should inform (c) much more than it does. The entire pricing structure of publishing is based upon assumptions from the 1960s (which, themselves, had shaky foundations) regarding the "right" price for books that have never been confirmed by actual data. "List price must be ten times the printing cost" my (surgically removed) left big toenail!

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...