Threat Gap

It's been a while since I complained about the Homeland Security Advisory System, but I just learned today that it is basically copied from the French Vigipirate system.

Now, that doesn't bother me. You never caught me ordering "Freedom Fries," or pouring Champagne into anything but a glass bound for a table. What bothers me is that the French have more threat than we do! Yes, ladies and gentleman, there is a Threat Gap, and the French are winning! As you can see from the helpful graphic here, the French have dispensed with the useless peacenik levels of Green and Blue, but have developed a greater Threat Capacity through the deployment of the the color scarlet. (It's not pink, it's scarlet, y'hear?) "Menace certaine," they say. What threat can we possibly field against such a menace?

In fact, I fear that the epistemological sophistication of the French system (or, as they say, "systeme") allows for development even beyond what our system is capable of deploying without radical readjustment. Our system, as you can observe, while having a significant hue element, is, in fact, based on altitude. Low, general, elevated…The problem is that if we develop another threat level, the only place we can get any higher is in orbit. And, quite frankly, if we put the terrorists in orbit, I'm quite happy to leave them there.

A brief aside: I don’t have the stomach today to confront the appalling knowledge that while we have "threats", the French are armed with "menaces." When I think on such a prima facie difference in fear, I feel like a cop in a blue uniform, when the criminals get to wear black.

The French, on the other hand, have merely to develop NEW COLORS, because their system is based on ACTUAL METHOD. Yes, six years ago, it seemed that political expedience was a serious threat to our freedoms (I recall that right, right?), but, as Donald Rumsfeld knew quite well, the upper limit to what you can know is the facts at hand; the French acknowledge this with their first level, "No indications of threat." When they get to yellow, it is an "imprecise threat"--the dawning knowledge that we're not sure what we know. Red is a "probable threat"--the point at which, scarily, we know what we don't know. And red is "Certain threat"--when we know what we know, and it ain't pretty.

What you may not realize is that this leaves French Threat Engineers only at the mercy of their painters in developing at least two more threat levels: The point at which a threat is being actualized for one, and the point at which an actualized thread is being analyzed. And, I'm realizing with horror that the French academy has already been enlisted as a skunkworks for yet another level: the point at which discourse analyzing an actualized menace is in turn analyzed! It is possible that certain scientists from institutions such as The University of Chicago may be ready to confront this future level of Threat, but who knows if we can close the Threat Gap by that point?

Call your congressman today! We demand a Scarlet Menace, and won't feel properly unsafe until we have it!

Sale or license? (with a dash of California vs. New York!)

That nice boy from the midwest, Marshall Mathers, just won his case, F.B.T. Productions v. Aftermath Records in the Ninth Circuit Court of Appeals. This is, for lack of a better term, a pretty Big Effing Deal for electronic publishing in any medium. Here's why.

When authors or musicians (and other kinds of talented and creative individuals) sign a contract with a publisher, it's usually structured in the following way. Every time the publisher sells a copy of the work, the author (I'm going to say author, though the artist here is a musician) gets a cut, anywhere from, oh, four percent up to maybe twenty or twenty-five percent. (The more copies that the publisher thinks will sell, the bigger a percentage they'll pay to the author, since fixed costs for the work—editing, design, mastering, preparation of "plates" [digital or metal], and the like—become a smaller percentage over a bigger print run.)

However, if the publisher licenses subsidiary rights in the work to someone else, then the author and publisher usually split the proceeds fifty-fifty. This is because the publisher is doing work to negotiate these deals—they wouldn't happen without the publisher making them happen in most cases—but not, usually, investing much, if anything, in these subsidiary-rights ventures. What sorts of things are we talking about? Translations, abridged editions, adaptations into another medium (movie versions of books! comic book versions of movies!), licensed merchandise and apparel, coursepacks, magazine excerpts... you get the idea.

Now, here's why I think that the Ninth Circuit made a good decision: The [music] publishers were trying to have it both ways. They were claiming, when it came to their talent, that they were selling copies of the works to distributors, who were in turn selling copies to their customers. They were therefore accounting for any money that came in on these deals as Sales, and paying the authors a Royalty on these sales, as their authors were due in their contracts, maybe 5, 10, 15, 20 percent. However, the publishers were turning around and treating their "distributors" on these deals very much as licensees: the publishers made them all sign license agreements, which were only in force for limited times; the publishers retained the right—and the material/electronic capacity—to withdraw access to the work; the publishers only allowed very specific in short, they called it a license, they structured it like a license, and it quacked like a license.

The court said, "Nuh uh uh! You want this to be a license because you want to keep lots of control over the work itself. You can't go paying the author like you've sold copies of the work and don't have any control over where they go from here." Calling BS on any entity trying to own both sides of an argument is a good thing in my book.

Where will things go from here? Well, the article I kicked off with does a pretty good job of summarizing things: Fretting and complaining from publishers of all stripes, then someone will take a position "for the author" and "against the industry" and bang, higher royalties for authors on electronic editions (succumbing to what will surely be an increasingly loud plaint from authors and agents for such a raise). The ways that these institutions respond is quite familiar.

To give a little background for what's going on in the last paragraphs of the article: First, there is a broad sense that the Ninth Circuit is "more liberal" than the Supreme Court (see Newdow), but that may be more of an image than the substance warrants (I do have a day job, or I'd check stats for Supreme Court reversals of 9th Circuit decisions), and this isn't a straightforward liberal/conservative issue anyhow. Within the realm of publishing, things get even more complicated; while the Ninth circuit encompasses California, and, within it, a whole squadron of film and music companies, the biggest players in the publishing of words are located in New York, in the Second Circuit, and the Second Circuit has never felt the need to bow to Ninth Circuit precedent (I suspect that the Second and Ninth Circuits might even take a tiny breath of pleasure in taking a contrary position to what the other has staked out).

Third, no one wants to take this to the Supremes, since a broad decision is an awful big gamble and this court isn't knee-jerk predictable on these issues. So we're unlikely to get a firm, nation-wide binding system to establish the lines between sales and licenses, but we are likely to see more clarity about such things in contracts.

And last, the prospect of more direct-from-publisher-to-consumer sales of electronic editions is growing. In selling such editions, publishers can maintain the control they would have to use a license to maintain in an environment of distributors and retailers.

“Justice?—you get justice in the next world, in this world, you have the law.”—Wm. Gaddis, A Frolic of His Own