The keenest sorrow

25 April 2018

The keenest sorrow is to recognize ourselves as the sole cause of all our adversities.

Sophocles

Great Literature That Nobody Likes

25 April 2018

Inspired by a comment on another post, PG is moved to ask for nominations for a list titled, “Great Literature That Nobody Likes”.

He’s posted before concerning Amazon’s revelations about bestsellers that nobody reads, but this list may be a bit different because it might include school or college assignments for which students are required to write a paper.

The list might include discarded children’s books. PG remembers seeing an item that says nobody reads, Little Men anymore. He remembers liking Little Men, but liking Little Women better.

(Perhaps that set a pattern. He also liked College Women better than College Men.)

What about Les Miserables or Ulysses or The Mayor of Casterbridge?

Frankenstein, Mrs. Dalloway, or Ethan Frome?

The works of Aristophanes, Sophocles, Virgil, Cicero or Pliny the Elder or Younger?

Us Animals

25 April 2018

From The Millions:

There are so many ways for a nest to fail. So many ways for a sentence to fail. In my years as a field biologist I watched how the natural world dealt with the inevitability of failure—in life, mating, reproduction, predation. Unaware, I began to translate what I observed directly into my writing style.

One day on the Gila River I saw a bright green-blue snake slide through a willow with a flycatcher egg in its mouth. Endorphins flooding my body, I wrote about it right away, taking a seat on the sandy shore and jotting down a few winding versions of the event in my notebook. But nothing that I wrote rang quite right. I was too close to it, too amped up. It would only be later in the calm of my tent that I could process what I’d seen, reflect on it, and write. A little distance goes a long way.

The monsoons came fairly early that year I worked surveying breeding willow flycatchers via kayak on the Gila River in southeastern Arizona. After a particularly strong downpour I found three nestlings drowned in their own nest. When I tried to write about it, I found my syntax to be choppy and blunt. I wrote in the margins of my notebook, simply, they are gone. All dead. Again, I needed time to process what I’d seen.

The survival rate for songbird offspring is only about 30 percent, with large ranges within that statistic, of course. While doing nest monitoring on the Gila River, our crew monitored some 50-plus Southwestern willow flycatcher nests. At the time, this was a stronghold population for an ever-dwindling, federally endangered subspecies. Over and over in the course of just one field season we watched this struggling population build, lose offspring, rebuild, and try all over again. I wasn’t fully conscious of it at the time, but this kind of constant reminder of life’s fragility crept its way into my perspective and prose.

. . . .

When a nest fails, birds waste no time. They pick the pieces up and move on. A nest is repaired, a new clutch is laid, and they are on to the next plot point of their narrative. It is in this way that I began to write stories about loss—and then survival—with the particular lens of a biologist. The people in my novel began to share traits with some of the animals I observed. My characters knew how to pick up the pieces and march on into the future. They didn’t make a big deal of it when their whole life fell apart, but moved on because they had to. These people in my writing, you might say they were channeling their inner animal. And then all of a sudden I was one of them.

Link to the rest at The Millions

Do Romance Authors Receive Worse Treatment from Publishers Than Anyone Else?

25 April 2018

PG is trying to extricate a client from a nasty publishing contract with a large romance publisher. Both the client and the publisher shall remain nameless.

PG is frustrated. The client is frustrated.

PG has conducted extrications from enough publishers to have come to a conclusion.

Across the broad range of different types of books and different varieties of publishers with which PG has dealt, as a group romance publishers are the worst. Worst contracts, worst behavior, worst attitude towards writers.

A public event PG can talk about began in 2012 when a class action was filed against the company on behalf of Harlequin authors who signed book contracts with Harlequin between 1990 and 2004. The suit was filed in 2012 and settled in 2016. You can find information about the settlement of the class action at Harlequin Class Action Settlement.

The lawsuit was based on Harlequin’s practice of sublicensing e-book rights through a Swiss subsidiary, which resulted in authors receiving 3% to 4% of net profits from their works rather than the 50% Harlequin agreed to pay in its publishing contracts.

PG has previously blogged about this case. You can see prior posts, including some court documents, by Clicking Here

Basically, the story was that HQ didn’t mention ebook royalties in its publishing contracts. Those contracts included a catch-all clause which essentially said HQ could license other rights and split the proceeds on a 50/50 basis with the author. The contracts also included a provision which said if HQ licensed the other rights to an affiliated entity, the royalties paid to the author had to be equivalent to market rates for licensing those other rights to a company not affiliated with HQ.

When ebooks appeared on the scene, rather than asking its authors to sign new contracts or ebook addenda to their existing contracts, HQ decided to license ebooks to a related Swiss company for a royalty of 6% of the cover price. The Swiss company then sublicensed each book to HQ print and ebook companies to distribute, so HQ-Switzerland kept 94% of the ebook proceeds and paid 6% to HQ-SorrySucker.

Under the “other rights” clause in the publishing contract, the author would be paid 50% of the amount of the license fees received by HQ-SorrySucker. HQ-SorrySucker paid the authors 50% of 6%. Even English majors know that results in a royalty paid to the author of 3% of the cover price each ebook.

This was at a time when Amazon would license ebooks from authors under KDP for royalties of 70% of the cover price. If HQ-SorrySucker had taken the normal route taken by other publishers, HQ authors would have received royalties at the rate of 35% of the cover price.

The following is from an Amici (the plural of Amicus or Friend of Court) Brief filed in the case by Romance Writers of America and the Authors Guild:

In the spring of 2011, Amicus The Authors Guild began receiving reports from its members that their e-book royalties from Harlequin were extremely low. These members believed Harlequin was self-dealing by licensing e-book rights to one of its corporate affiliates for 6% of the cover price (i.e. suggested retail price). Because the royalty payable to the author under the “all other rights” clause is 50% of the amount received by the publisher, a 6% royalty to the publisher results in a royalty to the author of only 3% of the cover price – far below the customary range for sales in secondary media. The Authors Guild contacted Harlequin to voice these concerns and to request a copy of Harlequin’s inter-affiliate license agreement. Harlequin declined to provide the document on the ground that it was proprietary.

During the same timeframe, Amicus RWA was also in communication with Harlequin regarding e-book royalty issues. Harlequin  provided to its authors, RWA, and other industry participants the following explanation of Harlequin’s inter-affiliate licensing practice:

Our authors contract with Harlequin Books SA (“HBSA”), our related Swiss company.  HBSA licenses  the right to publish an author’s work in print and digital to our operating companies and to third-party publishers, which then bring books to market in their country (incurring costs of translation, production, distribution, marketing, branding, etc.). In return, HBSA receives a license fee.

The NAR [net amount received by the Publisher] is the license fee. For editions where the author is to be paid 50% of NAR, the author’s royalty is therefore 50% of the license fee received by HBSA. The license fees are expressed as a percentage of cover price. Historically they ranged from 6% to 8%. The author’s 50% share of that fee would then equal 3% to 4% of the cover  price.

As noted, the publishing contracts at issue require that in any affiliate licensing arrangement the “Publisher” must receive license proceeds that are “equivalent to the amount reasonably obtainable by Publisher from an Unrelated Licensee for the license or sale of the said rights.” Based on their considerable reservoirs of knowledge and industry data sources regarding royalty rates in the publishing industry, the Amici confidently represent  to this Court  that  the  6% to 8% royalty that Harlequin Enterprises elects to pay to  its Swiss “Publisher” subsidiary is a small fraction of the proceeds that the “Publisher” could obtain from an unaffiliated licensee in the open market for e-books.

. . . .

Generally speaking, a book publisher makes money by exercising the rights that it has licensed from the author of a given work, through the sales of books or sub-licenses of publication rights in various sales and distribution channels.

Historically, the primary sales channel for print book publishers was through retail book stores. In the modern era of e-books, publishers sub-license their digital copyright rights to online “e-tailers.” The most well-known e-tailers of e-books are Amazon, Barnes & Noble, and Apple, but there are many others in the field.

There is no hard and fast rule or convention in the publishing industry on the royalty rates or license fees paid by e-tailers to publishers for e-books. There are, however, numerous sources ofdata on the market’s behavior. In the experience and collective knowledge of the Amici, publishers are almost universally able to extract from an e-tailer at least 50% of the cover price of an e-book. A 70% split for the publisher is quite common and can be obtained even from industry power­ houses such as Amazon and Apple.

It is clear to the Amici that if the Harlequin’s Swiss “Publisher” subsidiary operated as a normal market participant, it could readily license the new e-book versions of its backlist for license fees of 50% to 70% of the cover price of each work sold. In this scenario, the 50% royalty payable to authors under the 1990 to 2004 publishing agreements would be 25% to 35% of the cover price of each work sold. Instead, however, the Swiss “Publisher” licenses the e-books to its parent, Harlequin Enterprises, for 6% to 8% of the cover price, and the authors’ 50% royalty is thus only 3% to 4% of the cover price. From the perspective of the Amici, it appears that Harlequin Enterprises has simply siphoned off 42% to 64% of the cover price before the money reaches the Swiss “Publisher” subsidiary, so this amount will not have to be split with the authors.

PG has calmed down now, but he still wonders whether romance authors are treated worse than other authors by the publishing establishment.

PG does know Amazon loves romance authors and it shows its love by paying them money.

PG has never had a client ask him whether he thinks the author can make more money from HQ than from Amazon.

PG was not a math major, but he could probably figure out his answer to that question without a spreadsheet.

Margaret Atwood on How She Came to Write The Handmaid’s Tale

25 April 2018

From Margaret Atwood via The Literary Hub:

Some books haunt the reader. Others haunt the writer. The Handmaid’s Tale has done both.

The Handmaid’s Tale has not been out of print since it was first published, back in 1985. It has sold millions of copies worldwide and has appeared in a bewildering number of translations and editions. It has become a sort of tag for those writing about shifts towards policies aimed at controlling women, and especially women’s bodies and reproductive functions: “Like something out of The Handmaid’s Tale” and “Here comes The Handmaid’s Tale” have become familiar phrases. It has been expelled from high schools, and has inspired odd website blogs discussing its descriptions of the repression of women as if they were recipes. People—not only women—have sent me photographs of their bodies with phrases from The Handmaid’s Tale tattooed upon them, Nolite te bastardes carborundorum and Are there any questions? being the most frequent.

The book has had several dramatic incarnations, a film (with screenplay by Harold Pinter and direction by Volker Schlöndorff) and an opera (by Poul Ruders) among them. Revelers dress up as Handmaids on Halloween and also for protest marches—these two uses of its costumes mirroring its doubleness. Is it entertainment or dire political prophecy? Can it be both?

I did not anticipate any of this when I was writing the book.

I began this book almost 30 years ago, in the spring of 1984, while living in West Berlin—still encircled, at that time, by the infamous Berlin Wall. The book was not called The Handmaid’s Tale at first—it was called Offred—but I note in my journal that its name changed on January 3, 1985, when almost 150 pages had been written.

. . . .

I recall that I was writing by hand, then transcribing with the aid of a typewriter, then scribbling on the typed pages, then giving these to a professional typist: personal computers were in their infancy in 1985. I see that I left Berlin in June of 1984, returned to Canada, spent a month on Galiano Island in British Columbia, wrote through the fall, then spent four months in early 1985 in Tuscaloosa, Alabama, where I held an MFA Chair. I finished the book there; the first person to read it was fellow writer Valerie Martin, who was also there at that time. I recall her saying, “I think you’ve got something here.” She herself remembers more enthusiasm.

. . . .

The book came out in the UK in February of 1986, and in the United States at the same time. In the UK, which had had its Oliver Cromwell moment some centuries ago and was in no mood to repeat it, the reaction was along the lines of, Jolly good yarn. In the United States, however—and despite a dismissive review in the New York Times by Mary McCarthy—it was more likely to be, How long have we got?

. . . .

Nations never build apparently radical forms of government on foundations that aren’t there already.

Link to the rest at The Literary Hub

Patents are like fertilizer

24 April 2018

Patents are like fertilizer. Applied wisely and sparingly, they can increase growth. But if you apply too many chemicals, or make patents too strong, then you can leach the land, making growth more difficult.

Alex Tabarrok

Huddleston Deluxe Files Lawsuit Against Bass Pro

24 April 2018

An interesting case that demonstrates the potential reach of copyright.

From Scout:

According to a press release issued by Huddleston Deluxe, Inc., the famed bass fishing swimbait company filed a patent infringement, copyright infringement, and unfair competition lawsuit April 10, 2018 in the U.S. District Court for the Northern District of California against Bass Pro Shops.

Huddleston Deluxe has asserted U.S. Patent No. 7,627,979 (“the ‘979 Patent”) titled “Fish Lure with Vortex Tail,” against the XPS brand “SLO-MO” swimmer product of Bass Pro Shops.

. . . .

(Continuing with the Huddleston press release)

The lawsuit alleges that certain Bass Pro products sold under the XPS brand, which are distributed online and in Bass Pro Shops retail stores throughout the nation, incorporate Huddleston’s patented swimbait invention and copy Huddleston’s distinctive design, which was made from a hand-carved fish prototype.

. . . .

Huddleston Deluxe has also asserted claims for copyright infringement and unfair competition in violation of California Business and Professional Code §§ 17200, et seq.  Huddleston is seeking a preliminary and permanent injunction, damages, including treble damages, and attorney’s fees in the litigation.

Huddleston’s CEO, and the inventor of the ‘979 Patent, Samuel “Ken” Huddleston, expressed disappointment with the situation:

“Bass Pro Shops once sold Huddleston swimbaits in their stores. It is unfortunate to see that they now appear to be infringing my patent and even copying the unique, detailed shape of our lures.  We attempted to address our concerns without litigation, but received no response. Unfortunately, that left us no option but to take legal action to enforce our rights. We respect and value intellectual property rights, and expect the same of others. We remain disappointed that Bass Pro Shops has failed to respect our legal rights, and we plan to vigorously defend our rights and to succeed in our claims against Bass Pro Shops.” 

Link to the rest at Scout

The two fishing lures in question

Without having read the complaint, PG has significant concerns about the copyright claims. If you make a lure that looks like a small bait fish, isn’t it going to look like lures that everyone else makes that mimic the appearance of a small bait fish.

Additionally, patents, not copyrights are typically used to protect devices.

From The United States Patent Office, Circular 1:

Copyright is a form of protection provided by the laws of the United Statesto the authors of “original works of  authorship” that are fixed in a tangible form of expression.

. . . .

What Works Are Protected?

Examples of copyrightable works include

• Literary works
• Musical works, including any accompanying words
• Dramatic works, including any accompanying music
• Pantomimes and choreographic works
• Pictorial, graphic, and sculptural works
• Motion pictures and other audiovisual works
• Sound recordings, which are works that result from the
fixation of a series of musical, spoken, or other sounds
• Architectural works

These categories should be viewed broadly for the purpose of registering your work. For example, computer programs and certain “compilations” can be registered as “literary works”; maps and technical drawings can be registered as “pictorial, graphic, and sculptural works.”

. . . .

Copyright does not protect

• Ideas, procedures, methods, systems, processes, concepts, principles, or discoveries
• Works that are not fixed in a tangible form (such as a choreographic work that has not been
notated or recorded or an improvisational speech that has not been written down)
• Titles, names, short phrases, and slogans
• Familiar symbols or designs
• Mere variations of typographic ornamentation, lettering, or coloring
• Mere listings of ingredients or contents

Link to the rest at The United States Patent Office

For further information on what cannot be protected by copyright, see Circular 33 from the USPTO

With respect to the practical aspects of protecting the design of fishing lures, here is a discussion from Alabama.com:

In 27 years of outdoors writing for The News, I’ve probably been approached no fewer than 50 times by fishermen who are convinced that they invented a lure that will revolutionize fishing.

A couple of those lures were indeed impressive but most were anything but revolutionary. Some were even contraptions that made me wonder what in the world was going on in that person’s head.

I was fishing a few weeks ago with Lee Sisson, the long-time lure designer for Bagley Baits. I was laughing and telling him about a lure a man had once shown me that was made from a small carbon dioxide cannister. It spewed air bubbles when retrieved and weighed way too much to be a lure. I tried not to laugh when the man assured me it was good for at least two or three casts before the canister ran out of air and had to be replaced. And, oh, yeah, you had to carry a small device that would drill the perfect-sized hole in the canister to make it work properly.

I asked Sisson what the options would be if some basement inventor actually come up with a great, marketable lure. His answer surprised me.

“There’s not really anything they can do,” he said.

I asked for an explanation.

He said none of the major lures companies will even talk to outside lure inventors these days. When he gets a call from someone who says he has invented a lure, Sisson stops the caller in mid-sentence and tells him to say no more. He tells the caller that the company is not interested.

What happens, he explained, is that lure companies are always working on lures that they may introduce someday. If the inventor’s lure idea is credible, a lure company has probably been working on something similar. If the lure company introduces that lure one day, the inventor is always convinced that he showed the company his idea and the lure company stole it. Troublesome lawsuits can follow.

Sisson said most basement lure inventors wrongly believe the first step once they have come up with an idea for a fishing lure is to have it patented. Patents on fishing lures are pretty much a joke, he said.

First, it is near impossible to get a patent on a lure unless it has an extraordinary design. Second, patents are expensive and pretty much worthless when it comes to fishing lures. Should the lure be a hit with fishermen, the typical inventor doesn’t have the time or the money to fight lawsuits against every small lure-maker that might copy it and sell it.

. . . .

The reality is that the vast majority of lures have a short life span. Sales may last only a year until interest wanes. The inventor may invest his life savings to have the lure produced and by the time it finally hits the market, the fishermen who at first were so excited about it have found something else. Sisson said he has seen cases where amateur lure inventors who believe they are going to get wealthy invest their life savings and eventually lose most everything else they own.

Link to the rest at Alabama.com

In this case, the patent was actually issued in 2009 which provides the invention with the rebuttable presumption of validity.

Additionally, the validity of the patent was challenged by another fishing lure manufacturer in a lawsuit filed in the Eastern District of Texas.

PG has quickly reviewed the docket entries from this lawsuit. As background, during this time period, the Eastern District of Texas attracted a lot of patent litigation. Part of the attraction was the District’s adoption of “rocket docket” rules which had the effect of moving suits to trial or other disposition substantially faster than in many other district courts.

A second part of the attraction was that, due in part to the rocket docket, the Eastern District judges developed a reputation for expertise in handling patent lawsuits because lots of patent infringement cases were filed there. Federal District judges tend to be generalists because they handle a wide range of litigation ranging from criminal drug cases to auto accident claims. These judges can complete a long career without ever taking a patent infringement case to trial.

The docket in the earlier case reflected quite a bit of churn among counsel for both sides. PG also found a number of entries that may have reflected a lack of understanding on the part of some counsel about how the rocket docket worked in Texas and the necessity of moving fast. Based on this third-hand evidence, PG suspects attorneys on each side may have made a few non-prejudicial errors in their filings.

Eventually, the case was dismissed at a preliminary stage with no resolution. So, the fishing lure patent and copyright claims of Huddleston Deluxe were never tested.

Huddleston, a self-described “small fish lure manufacturer located in Las Vegas Nevada” may find its suit against Bass Pro is a different experience than its earlier suit.

Bass Pro is privately held and had estimated revenues of over $4 billion in 2016. In late 2017, Bass Pro acquired its largest rival, Cabellas, another $4 billion sporting goods giant.

Suffice to say, Bass Pro has the money to hire excellent patent litigation counsel. This case is filed in the Northern District of California, San Jose Division, within easy driving distance from the offices of some of the best intellectual property trial lawyers on the planet.

Huddleston has hired a medium-sized law firm which has several practice areas other than intellectual property law and has, according to its website, a unique firm structure with few associates, which may or may not work well in patent litigation against a much larger company.

Spotify’s Big Lie, Streaming Habits Mirror Purchasing Habits

24 April 2018

From Trichordist:

One of the biggest lies told by Spotify is that streaming will provide more revenue over the life of a record because every play will be monetized. This as opposed to the one time payment earned from a transactional purchase where all the revenue from the purchase of the record is paid at once. There is however, a very big problem with this theory, which is that the consumption curves of streaming match the consumption curves of transactional sales.

So, what about that so called long tail? Well, it doesn’t exist. Not for music consumption. Or we should say, it doesn’t exist any different for streaming than it did has for transactional sales. What do you think is more profitable in generating revenue? Is it the album sales of artists catalogs, or is streams?

Keep in mind, streaming is a fixed cap market. So it does not matter how much the market grows in actual consumption, the revenue is capped by the amount of revenue earned by the hosting provider. If consumption doubles, but revenues stay flat, every stream is worth half of what it was previously.

. . . .

We’re already seeing this trend as we noted earlier this year that Spotify per stream rates appear to be dropping steadily by about 8% per year.

Link to the rest at Trichordist

Women Intellectuals and the Art of the Withering Quip

24 April 2018

From The Paris Review:

“If one is a woman writer there are certain things one must do,” the British writer and journalist Rebecca West writes to a friend in 1952. “First, not be too good; second, die young, what an edge Katherine Mansfield has on all of us; third, commit suicide like Virginia Woolf. To go on writing and writing well just can’t be forgiven.” West, ignoring her own advice, neither died prematurely nor blunted the fineness of her writing. As a young woman, she made her name with witty, digressive book reviews that were often wonderfully cutting. (On Henry James: “He splits hairs until there are no longer any hairs to split, and the mental gesture becomes merely the making of agitated passes over a complete and disconcerting baldness.”) She also wrote several novels and covered world events for prestigious magazines, including the trial of the English fascist William Joyce and the 1947 lynching of Willie Earle.

. . . .

The literary critic Michelle Dean’s new book of the same name, a cultural history-cum-group biography, examines the lives and careers of ten sharp women, among them Susan Sontag, Joan Didion, Dorothy Parker, Renata Adler, Hannah Arendt, and Zora Neale Hurston. What unites this disparate group, Dean claims, is the ability “to write unforgettably.”

. . . .

“The longer I looked at the work these women laid out before me,” Dean writes, “the more puzzling I found it that anyone could look at the literary and intellectual history of the twentieth century and not center women in it.” 

Dean’s centering, or recentering, is both deeply researched and uncommonly engrossing. Indeed, Sharp’s pacing and wealth of anecdote compel one to consume the book like a novel. Many of the book’s satisfactions arise from the depictions of the incestuous, fiercely competitive beau monde these women inhabited. There is a delicious pleasure in reading about the stars and bit players of the fabled “New York intellectuals” of the 1940s—men and women alike—and their petty spats and rivalries that lasted for days or for decades.

Link to the rest at The Paris Review and here’s a link to Sharp by Michelle Dean

How These 4 Different Personality Types Find Motivation

24 April 2018

Re: Character Development

From Fast Company:

People fall into one of four distinct tendencies: obliger, questioner, rebel, and upholder. Each impacts how you become motivated to accomplish things.

. . . .

If you’ve ever wondered why some people get more things done, it may not have anything to do with their supply of willpower. They’re probably tapping into inner tendencies that motivate them to act, says Gretchen Rubin, author of The Four Tendencies: The Indispensable Personality Profiles That Reveal How to Make Your Life Better (and Other People’s Lives Better, Too).

. . . .

OBLIGER

Obligers easily meet outer expectations. They deliver projects on time when someone else is counting on them, but they struggle with inner expectations, such as setting personal resolutions. They become discouraged when trying to adopt new habits because they’ve tried and failed in the past.

“Obligers need outer accountability to meet inner expectations,” says Rubin. “They do well with deadlines and team supervision. Workplaces have that all over the place.”

Link to the rest at Fast Company

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