July 12th, 2003

rivka as ww

(no subject)

Four books about, generally, law and the new economy, and, at the bottom behind cut-tags, a spoilerific chat about Pirates of the Carribean.

Anita Miller, Uncollecting Cheever: The Family of John Cheever vs. Academy Chicago Publishers: This book is about a small press and the trouble it got into when it tried to publish the uncollected stories of the late John Cheever; the original thought seems to have been that there would be 15-20 stories, but as the bibliography grew, so did the proposed book. Eventually, the press and Cheever's heirs came to a parting of the ways on the scope of the book, and Cheever's heirs sued for copyright and trademark infringement. The book, by one of the press's principals after the heirs prevailed in two separate courts, is less interesting for its content than what it teaches about litigation, reminding me of things I knew from practice.

The author has become obsessed with small details, tiny errors in the other side's presentation of the facts used to show that side's idiocy and bad faith. (I have no independent knowledge about whether Miller in fact identifies errors in the facts as found by the two trial courts involved.) It's very easy for litigants, and their lawyers, to get hung up on perceived errors in fact. Unfortunately, once a court finds facts, it's rare that an appellate court will reverse those findings, so better strategy for an appellant tends to be less emotionally satisfying because it doesn't "disprove" the errors and misstatements of the other side. Better strategy may be contrary to an appellant's desire to get her side of the story heard; I've read interesting work on why people litigate and appeal which shows that they want to be heard more than they want to win (and they mistakenly believe that, if they're heard, they'll win, even though focus on facts is ordinarily the best way to bore a court of appeals), which explains some otherwise puzzling strategic choices.

The other lesson of which this book reminded me is that no contract is written well. When a dispute arises, it's almost definitionally the case that the contract wasn't clear enough to control the situation. There are always exceptions, but usually the situations in which litigation threatens are ones nobody thought about and the contract therefore doesn't deal with them head-on. The press and the heirs signed a fuzzy contract, which from all descriptions was slightly less professional than most publishing contracts, but not a lot so. When the number of stories included changed radically and the heirs paid more attention to the project, the contract wasn't clear enough to help anybody. (The ordinary addendum would be "except the lawyers," but even the lawyers clearly had no fun earning their $1 million in legal fees; the heirs' lawyer characterized his relations with the press's lawyer as "matrimonial," and he didn't mean honeymoon.) Fair warning: if you work in publishing, your contracts are likely to be vague on certain points, and those points might turn out to be key ones, as Random House found out when it tried to stop some of its authors from selling e-book rights to another publisher. You'd think "in book form" would be a plain contract term, but you'd be wrong.

Todd D. Rakoff, A Time for Every Purpose: Law and the Balance of Life: This book is full of interesting facts about the role of law in regulating time, but I'm not quite sure what the payoff is. I hadn't known the story of how time became standardized – it was important to railroad schedules – or how school years became standardized – long story, involving compromise between northern urban areas and southern rural areas in setting a minimum that, for various reasons, quickly became the maximum school year. There's no real evidence for the "planting season" theory about why there's one big summer vacation, according to Rakoff; it doesn't even fit the agricultural season all that well nationwide. Rakoff's main point is that the regulation of time affects communities as well as individuals; having communally designated days and times of rest is fundamentally different than having individually designated days and times, because the latter makes it a lot harder to have a Boy Scouts meeting, a neighborhood watch group, or even a family dinner. Thus, Rakoff is suspicious of things like flextime and comp time, which gives employers more control over the scheduling of employee time without regard to the consequences to other areas of life that also require scheduling. I learned neat trivia, including the facts of two wonderful cases about whether insurance contracts set to expire at noon on a certain day meant standard, railroad time or "common time," both of which existed alongside one another before standardization won out entirely, so clocks at the railroad station could be sixteen minutes off of clocks at city hall. Still, Rakoff took too long to make his big point.

Adam Wishart & Regula Bochsler, Leaving Reality Behind: etoy vs. eToys.com and Other Battles to Control Cyberspace: Another case study, interesting more for its broader implications than its specific content. etoy was a sort-of collective of five German guys trying to become famous, Warhol-style, through outrageous acts they labelled "art." eToys was an Internet startup with an unbelievable burn rate. You can guess what happened next: eToys sued etoy for trademark infringement. Wishart and Bochsler are best at conveying the ways in which both groups of people "left reality behind," an etoy slogan. The Germans, little more than kids, really thought that they'd be famous for what were essentially pranks, seen by very few people and thought about by even fewer (they manipulated search engine algorithms to divert people to their page, for example, back when that was easier to do). The eToys people really thought that they could make billions with a domain name and a concept, even though they didn't have an order-fulfillment system that made any sense – when orders started to rise, everybody in the company, including the executives, trudged across town to work in the warehouse, but unfortunately they didn't do all that good a job, not being trained to do that. Whether the form is cult-like, as the individuality-denying etoy was, or mainstream, as eToys was, people are infinitely more likely to delude themselves if they aren't doing it on their own.

Joseph Menn, All the Rave: The Rise and Fall of Shawn Fanning's Napster: In this well-written book, Menn's basic thesis is that Shawn Fanning's ne'er-do-well uncle John Fanning, who'd destroyed a bunch of businesses and left many frustrated creditors and former employees in his wake, was a direct cause of Napster's downfall. Fanning repeatedly refused offers that would have saved Napster and even possibly made it legal; he thought he could scare the music industry into submission and become a multimillionaire. He never cared that what Napster was doing was illegal, and ought to be illegal under any rational system of copyright law. The book makes everybody else involved more or less sympathetic, even Eileen Richardson, the embattled office-romancing CEO, but it's still hard to explain why anybody thought that Napster could figure out a viable business model, and indeed the book makes clear that it was always very difficult for Napster to get funding, and quickly got harder as Napster's scale increased. Salon's review of the book suggests that John Fanning, not the music industry, was the cause, but it's hard to imagine how a legitimate businessperson could have saved Napster in anything like the form we knew. The music industry is now, it is true, experimenting with digital downloads and streams (yay, Apple and Launch) it would never have countenanced before Napster, but Napster doesn't get to share in any of that bounty. Like America, the RIAA doesn't treat with pirates or, in this case, the makers of pirate ships.

And speaking of pirates ... Collapse )