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Comment Ah, Trespassing (Score 5, Interesting) 225

For those who haven't taken property or tort law classes, it's worth noting that $1 damages is not an uncommon award in trespassing cases. Punitive damages are unlikely if there is not a showing of disregarded warnings, maliciousness, or similar. Actual damages are more common but in many cases, there aren't any actual damages. Nominative damages are awarded in order to acknowledge the owners' property rights were indeed violated; depending on attorney's fees, this can be an extremely pyrrhic victory.

I'm intrigued by the court's treatment of the privacy issues, though. In particular, we occasionally see stories around here where trespass law--and sometimes copyright law--is used to shut down and even jail photographers taking pictures in public places... but here we have the opposite, photography taking place in a private (if not entirely "private") space and the response is nominative damages against a wealthy corporation. It's a frustrating disconnect.

(Yes, I am a lawyer, but of course none of this should be construed as legal advice.)

Comment Context... (Score 5, Interesting) 267

That line alone shows that they basically see suing people as a way to stop free speech - and that it should be allowed, even if the law isn't technically on their side. Basically, abusing the system to get people to stop saying things you don't like is considered legal.

Read that again. The court didn't say you could prevail. Only that suing--that is, filing suit--to stop the spread of negative information is not per se an abuse of process. Were it otherwise, you couldn't sue someone for libel or slander. Notice that this is a different thing than prevailing at trial.

Can you imagine how many people have been in a situation like Chris, but haven't had the money to go into a legal battle with them?

This is by far the more troubling consideration. The expense of legal process makes every one of us a potential corporate serf, and it would be nice if we could find an effective way to prevent people with money from wielding the legal system like a club. But if we called that "abuse of process," then it would be impossible for the rich to seek justice against the poor--which makes no more sense and arguably less. It would be nice if we could just say, "well, obviously this corporation could not possible have believed it would prevail on the merits, and was just throwing money at the problem, so that's clearly abuse of process," but the standard of proof for intent is yet another obstacle that brings with it a host of other problems.

Comment Tough Call (Score 5, Interesting) 267

Right, so... I'm a lawyer. Without knowing more about the case it would be hard to say "they got it right" or "they got it wrong," but (while I often mistrust my profession that much more for seeing it from the inside) it's important for people to understand the tensions at play here.

American lawyers are often put in a bind by professional responsibility. On the one hand, we have a duty to the court--of candor, honesty, and to assist in reaching justice without placing endue burden on the judicial system. On the other, we have duties to our clients--from confidentiality and competence to doing as the client asks.

Fulfilling both duties simultaneously can be very difficult. We have some leeway; for example, trial strategy is often something a lawyer can override a client's wishes on. But if you agree to represent someone, you have to zealously represent their cause. And if we are too quick to hold lawyers personally responsible for client overreaching, then lawyers become reluctant to advocate zealously for a cause. Sometimes it's easy to look back and say, "that lawyer should have known better than to bring this to court," but more often it is difficult and courts have strong reasons to give lawyers the benefit of the doubt--some good, some bad.

In the end, lawyers are held responsible for their--and even their clients'--actions all the time. We get fined, suspended, disbarred, held liable, and otherwise disciplined on a regular basis. Does it happen often enough? Sometimes I doubt that. But chalking decisions like this up to "professional courtesy" or a broken legal system is overhasty.

Comment Re:Here's Hoping for Some Gridlock (Score 1) 1530

...seriously? You honestly believe that apocalyptic soothsaying? Sorry, I'm too old for that tripe. Every freaking election, somebody has to trot out the end of civilization as we know it. That kind of hyperbole is just plain stupid. Don't be so credulous.

Buried in your semi-psychotic doomsaying are grains of serious, meaningful concerns. China is no joke. Neither is corporatism, or statism. But shrinking the government means enlarging America.

Not that it matters, but I work for my wife. She writes books, I'm a lawyer. Her books sell worldwide, so our fortune is not tied to any one country's success. We're doing what we can to be prepared for every economic eventuality. The most important thing being, relying on the government for as little as possible.

Comment Re:Here's Hoping for Some Gridlock (Score 1) 1530

Citation? Well, it's been attributed to Jefferson and Thoreau at various times, but no one really knows for sure where it originated...

Oh, sorry, were you asking for some kind of empirical proof-of-concept that small government is "better?" No, surely not--since it's an ideological assertion rather than a scientific one, that kind of request would be completely asinine and demonstrate a basic lack of understanding regarding qualitative hierarchies. I'll assume you're smart enough to know that, and give you the benefit of the doubt.

Less smarmily: if the "best" government is the one with the most control over certain civic variables, it would tautologically be true that the best government would be the most powerful, most overarching one. But those of us who believe that governments should exist in order to facilitate, rather than dictate, human interaction and existence obviously have different ideas about "best" than the one you've presented here.

In short: your condescending "citation needed" suggests you're more interested in quips than careful reflection, but I warmly invite you to demonstrate otherwise.

Comment Leadership (Score 2, Insightful) 1530

I guess that depends on whether you vote for your representatives because they closely represent your views, or because you find them to be wise, virtuous people--the very best of your community--and trust them to make the best possible decisions whether those are the decisions you personally have made or not. The whole point of representative democracy is to reap the benefits of rule-of-law while suppressing the excesses of mob rule. We even see that in action today--a sentiment sweeping the nation could not command a majority in the senate. The system resists sudden change.

What's that? Are you laughing at the proposition that politicians of any stripe are wise or virtuous? Well, the Founding Fathers believed that democracy could not function any other way...

Comment Here's Hoping for Some Gridlock (Score 2, Insightful) 1530

I'd really appreciate it if the federal gears ground to a halt for a while. That government is best which governs least. Is is too much to hope? I still remember the bipartisan bailouts and I'm still mad about them.

Oh well, it's probably progress... so to speak. Now if we could just find a way to convince the beast to govern less on purpose...

Comment It Went Away Before, It Will Do So Again (Score 4, Informative) 381

A friend of mine who is among the thousands of "Vice Presidents" in one of the big studio's TV sections suggested to me that most filmmakers hate 3D, however, TV manufacturers are having a hard time convincing households that they need a second flatscreen television. Large CRTs are being moved into master bedrooms as big flatscreens take their place in living rooms, but while market penetration of HDTV is finally significant (at least in the U.S.) people aren't buying two.

The market idea is that purchase of a large new 3D TV will drive the old HDTV into bedrooms, ideally creating a keep-up-with-the-Joneses mentality regarding bigscreen flat HDTVs in bedrooms.

He acknowledged that this is only one of many forces in the current push to 3D, but his perception was that the studios were under industry pressure to generate content for this new push (especially at Sony, where the consumer electronics department often dictates strategy in other areas). He expressed a mixture of hope and expectation that the current 3D fad would fade, too; your argument about "making extra money" only applies to blockbusters. Many movies don't make money at all, and I'm not just talking Hollyood accounting here--which means you want to produce them as cheaply as possible, to the extent it is possible to do so without completely alienating your audience.

Comment How So? (Score 1) 146

Please, elaborate. Which part of my comment inspired you to level a generic accusation of "ignorant" without offering the slightest explanation? If I'm truly wrong, by all means, enlighten me.

Or, you know, troll away I guess.

Comment Getting Modded into the Ground (Score 4, Insightful) 146

So, I would mod this up but we all know you're going to get modded straight to hell, no reason to waste the point.

Thing is, Obama would like that. Maybe not that specifically, but control over the media is something virtually all people in power would like to have, on the left or the right.

Of course they don't call it that. They call it fairness doctrine, or hate speech, or a matter of national security. They use words like obscene, or disingenuous, or simply "misleading." They get at the media through taxes, or through tax breaks, through limited access to key political figures or rules about campaign finance. They all want control! And to a certain extent, they have it, in a million tiny ways, for a million seemingly-innocuous reasons.

Stating the truth as boldly as you have brings out the partisan beast in people, but you're not far wrong. A neat little governmentally-mandated subsidy for the news media is a terrible idea, but the powers-that-be would likely eat it up.

Comment Re:Well, FWIW... (Score 1) 184

Generally only 1 out of 5 books earns out advance payment to authors and start earning royalties, so publishers are mostly shooting in dark.

Publishers always do something called "profit/loss" sheets on a deal. They usually make money even if the book doesn't earn out. Furthermore, large advances are often given to awards contenders or celebrity authors and are never expected to "earn out."

Rejecting authors like Rowling or Meyer is not a mark of shame. If someone doesn't think they are the right agent or editor for your book, or if they fail to predict which way the market is going, you get a rejection. That doesn't mean they're taking shots in the dark. It means they're human.

And before we counter that publishers provided better support for authors then there is a fact that only 1 out 100 published authors earn living exclusively with writing.

And how many self-published authors earn a living exclusively with writing? If it is 1 out of 1,000,000 I'd be surprised.

Comment Re:Well, FWIW... (Score 1) 184

Self publishing is only really viable the last 2 or so years, so there's going to be ZERO stats on the subject, but I wonder if that's actually true at all?

Actually, unlike self-publishing music (which used to require significant investment in instruments and recording equipment or studio rental and now requires little more than a computer), affordably self-publishing your books has been possible for a long, long time. What's more, an occasional smash hit has in fact risen from that level of publishing. But those are the anecdotes--the stories told by struggling amateurs while the vast majority of successful authors warn them that the odds are against it.

It's true that distribution and marketing logistics are dramatically simplified by the internet, and that is obviously worth further examination. But I'd submit that without the editorial process, something very important is still missing. Let's take your experiment:

Take 100 starting out authors today (50 self publishing, 50 submitting drafts to big publishing houses). Check their average earnings from books in 2, 5, and 10 years. You really think the ones just starting submitting, as opposed to publishing NOW (and for cheap), will wind up better on average? Do you actually think that a single author out of those 50 just starting submitting manuscripts will make it at all in the standard writing game? (by make it I mean earn a living family wage from books alone)

I wouldn't be surprised if 1 in 50 really did make a living wage ten years out (assuming they stuck with it), though others have told me that the number is more like 1 in 1000--it may be that I have just met too many successful authors to make a reasonable guess.

However, something your thought-experiment is missing is process--editorial, market, and (perhaps most importantly of all) writing. Editorial: How much would the authors in each group improve? Which authors would be more likely to write something notable? Assuming I'm wrong and epubbing became the norm, what impact would that have on our literary sophistication as a community? Market: What would be their chances at stardom? Let's say a published author becomes so successful, she hires a personal assistant. She becomes so prolific, her friends can't keep up, and she contracts out her editing. She becomes so popular in the ebook realm that Barnes & Noble wants her, so she she goes and pays for a printer. Pretty soon she's going to realize that her profit margin is shrinking (though her income continues to rise) and so she forms a co-op with other authors to diffuse costs like paying a publicist or a lawyer to examine those self-pub contracts she so gleefully inked. See where this is going?

While e-pubbing has definitely loosened the control of the big publishers a little, it hasn't been the disruption everyone keeps saying it's going to be, any day now. I don't know what the true, final implications will be--if dead-tree publishing will ever go away, etc. However, I have one guess that no one ever wants to talk about:

Writing: The digital world moves fast. Writing is often slow.

My wife writes about 3 books every two years. Some of her colleagues put out 3 a year by themselves. Some put out more by hiring assistant authors.

And some of them write one book ever 5 to 10 years.

These books are different. I don't know that they're better, but they do tend to appeal to a different kind of reader. The only way to make money on these books is to make a lot of money, to last you from one book to the next.

Most of the semi-successful e-published authors I've seen, by comparison, churn out books the way lawyers churn out paperwork. They write, and write, and write. And it is often painfully bad stuff, because even the best of them have the book edited by their friend who is an English professor or something. And wide distribution combined with high profit margins means that if they can get a couple hundred sales by pricing their book so low that statistically, that many people will just throw money at it to see what's new...

Yeah, they'll make some cash.

But you've got to realize how quickly that market is going to become glutted.

If you really want to understand where e-publishing is headed, check out XBox Live Marketplace, or even the Apple App Store. Everything is flash-in-the-pan. Companies rise and fall over the course of weeks, sometimes days. Most of the stuff they're churning out is like appetizers compared to the AAA titles that still sell in Wal*Mart. And the folks in control--the hardware companies--are already involved in quality control, and looking for ways to do more there rather than less of that.

As epublishing grows increasingly mainstream, the demand for intervention--from traditional publishers, from "booksellers" (the people who decide whether B&N will carry your title), from someone--is only going to increase. And you might be inclined to suggest user moderation a la reviews, but this strikes me as even more likely to create a handful of superstars and a whole lot of losers than the current state of affairs.

So I guess to the extent that Konrath is at all correct, it is--at best--a limited-time offer. We're not going back to the patron system, where a greater number of artists can make a living by fragmenting the market and doing away with "superstars" like J.K. Rowling or John Grisham. Which may be a shame--I think it would be nice if more people could make a living doing art.

But then again... quality stuff is already often hard to come by. I don't think opening the floodgates and amping the signal-to-noise ratio ever toward infinity is going to improve that. I'm not a big fan of corporations generally, and I have certainly been known to rail against "the man" keeping "art" and "authors" down in my day. But viewing the process from the other side, I have to admit--it's more complicated than I was led to believe.

Comment Re:Konrath Fails to Give Credit Where Credit is Du (Score 2, Insightful) 184

No, this is exactly wrong. He's not giving credit in those points--he's dismissing the publishers' past contributions to his present ability to profitably self-publish. He's saying, point by point, "we don't need no stinkin' publisher," but the only reason he's in a position to make those claims is because he had a publisher in the first place.

Furthermore, I'm skeptical of a bunch of authors getting together to edit their own work. Writing and editing are different skills. I know a couple of big-time authors who got into the editing business most of them are, by most accounts, lousy editors.

That's not to say you can't have both skills, or make the transition smoothly from one role to the other, but to take both roles for a single work strikes me as a bad idea.

Comment Re:Konrath Fails to Give Credit Where Credit is Du (Score 4, Informative) 184

There's nothing about it which requires an editor, some people are just naturally gifted for telling stories and really only need to know how it's coming across.

Is there a polite way to say "you clearly have no idea what you're talking about?"

The book industry really doesn't work the way that you think it does.

Seeing as how my wife is a New York Times best-selling author, and I am the lawyer who stays at home to handle the boring business end portions of her career... I'm going to go out on a limb and claim that I actually do know a little bit about the process.

They invest in order to get a product out of it, and if you're not relatively close already they probably won't sign you. If you're already that close, then there's no reason why a few neutral friends or acquaintances couldn't do the same thing.

Well, I can't speak for publishing generally, but in the children's market, most purchases are between 40% and 60% done. That's not to say the books aren't written from beginning to end--that's to say 1/3 to 2/3 of the original text will be replaced or altered before publication.

What's more, I've seen how different editors edit, and I can assure you that it is as much a skill as writing a book in the first place. A good editor can turn a good story into a great one--or, more often, a mediocre story into something at least worth printing. Your book-loving cousin who once read slush for the community college's sci-fi magazine will not make your book better the way a skilled editor can.

Of course, every author's process is different and your assumptions about publishing are basically reasonable--you've clearly given the issue a good five or ten minutes' thought. But you are simply mistaken about what goes into creating a marketable book.

Comment Well, FWIW... (Score 1) 184

My wife is 29. She is an author and she makes a modest living for our family of five (soon six!). Although I am a lawyer, my only employment at present is handling the "family business," both because there is plenty for me to do and because it is more rewarding than typical lawyer-work. Now, my wife is a New York Times best-selling children's author, so she's doing better than most writers. And while she made it there faster than most writers, you're correct that it takes some time--often, a long time.

What I'm saying is that self-publishing is most likely to add more years to an already typically long process.

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