PG’s Thoughts (such as they are)

‘In Chocolate We Trust’ Review: A Man, a Brand, a School, a Town

26 March 2018

From The Wall Street Journal:

In the early 20th century, Milton Hershey transformed chocolate from a luxury good to a working-class staple. It made him a fortune, which he used to establish Hershey, Pa.—a model company town 100 miles west of Philadelphia and the self-proclaimed “sweetest place on earth.” He also established an orphanage, the Milton Hershey School, to provide housing and education primarily for children from the area.

Hershey and his wife supported the school through a trust, which they established in 1905. By 1918, when he donated his full stake in his chocolate company to the trust, the trust was valued at $60 million. Today it is worth more than $14 billion—ranking it among the largest nonprofit endowments in the nation, on a par with MIT’s—and has maintained a profound commitment to its locale.

Peter Kurie’s “In Chocolate We Trust: The Hershey Company Town Unwrapped” is a study of the town and of its residents’ shifting attitudes toward its institutional trinity of trust, company and school. As Mr. Kurie notes, one of the trust’s most striking characteristics is its controlling interest in Hershey Co. Remarkably, this is not a stipulation of the trust’s official documents; the Milton Hershey School Trust has always been free to sell its shares in the chocolate maker. But as several failed takeover bids over the years have demonstrated, this ownership arrangement has proved surprisingly durable, producing a dense institutional tangle with the trust at its center.

. . . .

Mr. Kurie’s account shows how the town’s dominant institutions both guarantee a shared civic identity and produce tensions that threaten to undermine it. The trust’s imperative to generate more revenue for the school, for instance, has long strained the bonds of the broader Hershey community. Milton Hershey invoked the high costs of the school as justification for why he couldn’t afford a union at his company (his workers formed one anyway). In the 1960s, the trust received permission from a local probate court to expand its mandate and spend $50 million on a medical research and teaching center in partnership with Penn State University. It drew a new cohort of professional families into the community that were less deferential to the authority of the trust and company.

In the 1970s, after struggling to attract enough “true orphans” to the school, the trust opened admittance to “social orphans,” or those deemed to be receiving inadequate parenting at home. These students, many of them African-American, now make up the majority of those enrolled at the school. In reaction, a nostalgia-laced resentment has grown among townsfolk toward the students, who they charge treat the school less as a home than as a “welfare agency” to be exploited.

. . . .

Despite the hopes of some nonprofit leaders that place-based giving might insulate locally rooted philanthropic institutions from the antagonisms that have roiled the rest of the country, Mr. Kurie’s book makes it clear that Hershey is less a refuge from those broader conflicts than a microcosm of them, a fractal of grievances that replicates those of the larger system. Like so many other Americans, Hershey’s residents have been split over suspicions of an out-of-touch elite (the trust’s board, whose members have been accused of extracting outsize compensation from the trust) and over the incursion of outsiders who some feel don’t have the community’s legacy and interest at heart, be they African-American “social orphans” from inner-city Philadelphia or the former Hershey Co. CEO who arrived in town after a stint at Nabisco.

Link to the rest at The Wall Street Journal

PG suggests that, despite the best intentions and the undoubted genius of many of those who have amassed large fortunes, the establishment of a trust or other organization that will perpetually do good in anything close to the way the founder imagined is very difficult, if not impossible.

The OP says that the trustees have expanded the mission of The Milton Hershey School Trust well beyond the bounds originally established by Milton Hershey.

As the OP mentions, in the United States, legal matters relating to trusts typically fall under the jurisdiction of a local probate judge. Probate is the process of processing the estates of deceased persons to make certain any valid debts the decedent incurred while alive (plus funeral expenses) are paid and the remaining proceeds of their estates are properly distributed to their heirs. If the decedent had a will, the probate judge ensures that the assets are distributed according to the decedent’s expressed wishes. In the absence of a will, state law determines how those assets are distributed.

PG is not an expert on probate matters in the State of Pennsylvania, but the office of probate judge typically attracts individuals who enjoy a quiet life with minimal conflicts (no nasty divorce proceedings or criminals) making decisions that are consistent with state laws governing the probate of estates. These laws seldom change.

In some states, probate judges are elected to serve for a set term and may run for reelection. In other states, they may be appointed by the governor for a set term, subject to reappointment on the expiration of that term. There may also be other methods of designating probate judges of which PG is not aware.

Unlike other judges (Federal District Judges, for example), members of the probate judiciary are generally not inclined to throw their weight around or make headlines with their decisions. They are typically conscientious men and women who labor in relative obscurity as far as the larger community is concerned.

As the OP describes, in Hershey, Pennsylvania, The Milton Hershey School Trust is a really big deal. The trustees of the Trust will similarly be major figures of influence in the community. Hershey employs a great many people in the city. While it is part of a larger metropolitan area, the population of Hershey itself was 14,257 in the 2010 census. PG hasn’t been to Hershey for a very long time, but on his only visit, the smell of chocolate was literally in the air everywhere he traveled in or near the city.

PG will bring this long digression to an end by tying it to a mention in the OP that the trustees of the Hershey Trust petitioned the probate court for permission to expand the scope of the trust and the institutions it created and governed beyond the terms of the original trust documents.

While the probate court is theoretically the guardian of the Hershey Trust and the trustees’ obligations to carry out Mr. Hershey’s intentions as set forth in the trust documents he signed, faced with the power and influence of the Trust and its trustees, a great many probate judges would be inclined not to question the reasons presented by counsel for the trustees that an expansion of the Trust’s work into areas Milton Hershey didn’t expect or intend when he created the trust in the first place.

Successful authors who have created or wish to create trusts for charitable purposes may well wish to consider the lessons the OP provides.


Facebook’s Short-Term PR Has Longer-Term Consequences

23 March 2018

From Medium:

In her eye-opening piece this week, The Guardian’s SF reporter Olivia Solon opens the curtain on the draconian efforts by Google, Facebook and others to muzzle their employees from speaking publicly about their company’s doings.

Aptly titled “‘They’ll squash you like a bug’: how Silicon Valley keeps a lid on leakers,” Ms. Solon opens with one employee’s tale of his performance review meeting when he was ushered into a room and ambushed by Facebook’s security team armed with incriminating evidence of private correspondences he had had with a journalist he knew.

“It’s horrifying how much they know,” he told the Guardian, on the condition of anonymity. “You go into Facebook and it has this warm, fuzzy feeling of ‘we’re changing the world’ and ‘we care about things’. But you get on their bad side and all of a sudden you are face to face with [Facebook CEO] Mark Zuckerberg’s secret police.”

As with any publicly traded company, the importance of controlling material information is crucial. Virtually all centralize their external communications through their PR and IR departments, working alongside legal and the C-suite. On top of that, nearly all have clear employee policies dictating what’s acceptable and what’s not on social media. The New York Times, whose reportorial staff is not shy about weighing in on Twitter, just made news by updating its guidelines:

“In social media posts, our journalists must not express partisan opinions, promote political views, endorse candidates, make offensive comments or do anything else that undercuts The Times’s journalistic reputation.”

. . . .

Over the weekend, Facebook’s security guy Alex Stamos thought it was a good idea to opine on Facebook’s latest dilemma wherein a conservative billionaire-funded company Cambridge Analytica hired a Russian professor in the UK to abscond with the personal data of 50 million (!) Facebook users and weaponize it to denigrate one and elevate the other Presidential candidate.

. . . .

I therefore would have to wager that Mr. Zuckerberg and Ms. Sandberg not only had advance knowledge these initiatives, but purposely dispatched Messrs. Goldman and Stamos — the company’s ad and security leads, respectively — to tweet about them in a well-intentioned, but ill-conceived effort to set the record straight.

And therein lies Facebook’s PR problem. Rather than get out ahead of this potentially reputation-damaging news, the company waited until the news was upon them before taking remedial action. The lede from Axios sums it up:

“Facebook was caught flat-footed again Saturday as it scrambled to deal…”

You can see this short-sighted PR approach again with the company’s decisionto suspend Cambridge Analytica from its platform. Good move, right?

Link to the rest at Medium

PG says it’s an unwritten article of faith in Silicon Valley that the founders and early participants in major tech companies are the smartest people in the world. The chief evidence of this intelligence is the success of the companies they started.

Of course, this is silly. Very smart people can make stupid mistakes and do so all the time. In addition to intelligence, luck may also be involved, particularly in the early success of a company that has experienced rapid growth.

The other problem is that a great deal of intelligence is domain-specific. The genius programmer with no social skills is not hard to locate in any tech company ghetto. The genius programmer with some social skills has risen to the top of more than one successful enterprise.

The recent Facebook/Cambridge Analytica disaster certainly came out of left field for Facebook’s management. However, competently-managed large and valuable companies understand that left field exists and that preparation for an intelligent response to surprises is one of management’s responsibilities.

Facebook has over 25,000 employees. Starbucks has over 250,000 employees. Each of these companies is going to have employees who leak company secrets. The difference is that nobody cares very much about Starbucks’ secrets.

Despite all the non-disclosure agreements in the world, some current and former employees of Facebook are going to talk about what happens inside the company. Trying to discover who these people are is a reasonable response, but it’s far from the most important response to leakers. (And if Facebook employed the smartest people in the world, corporate security would never be able to track down who the inside leaker was.)

The most important response is to be prepared with an honest and proactive explanation of whatever the subject of the leak is. Plus actively working with any press organization that is covering the story. Pulling up the drawbridge is pretty much the worst thing a company can do. It’s an indication of management failure.

By now, regular visitors to TPV are wondering how this relates to books and authors.

One of the ways in which Amazon is an extraordinary company is that it has never experienced the type of negative media storm that Facebook is having and that is something a great many large companies experience.

The Seattle Times and others have tried to create some exposés, but they haven’t really gained much traction in terms of having any real impact on Amazon’s finances. A great many people are currently deleting their Facebook accounts or vowing to stop posting, but PG is not aware of any big bumps in Amazon’s revenue growth arising from stories about exhausting work in Amazon’s warehouses.

Amazon was ranked #2 in Fortune magazine’s 2018 list of the world’s most admired companies (Apple was #1).

Amazon had the same #2 rank in the 2017 list. It was ranked #3 in 2016, #4 in 2015, #2 in 2014 and #3 in 2013.

Facebook did not rank in the top 10 during any of those years despite having one of the highest market capitalizations of any company in the world and close to 100% name recognition.

Although Amazon has impressive technical chops (Amazon Web Services; what is almost certainly the best product recommendation system in the world), Bezos isn’t much like a typical tech CEO. After college, he worked at a telecommunications startup, a bank and a hedge fund before starting Amazon.

Amazon also avoids at least some Silicon Valley groupthink because it’s not located in Silicon Valley. PG understands Bezos initially funded the company out of his own pocket and from friends and family and turned down a venture capital investment, a decision which permitted him to personally control the company’s early business decisions.

It wasn’t until Amazon’s first book-sales website was up and generating increasing profitable sales each month that he accepted a small no-strings investment from a venture fund. PG thinks Bezos’ financial smarts helped keep Amazon away from the types of unwise management decisions that VC’s can force on a small tech company.

None of this guarantees that Amazon won’t someday make a Facebook-style screwup, but PG would bet against it.



50 million Facebook profiles harvested for Cambridge Analytica in major data breach

19 March 2018

From The Guardian:

The data analytics firm that worked with Donald Trump’s election team and the winning Brexit campaign harvested millions of Facebook profiles of US voters, in one of the tech giant’s biggest ever data breaches, and used them to build a powerful software program to predict and influence choices at the ballot box.

A whistleblower has revealed to the Observer how Cambridge Analytica . . . used personal information taken without authorisation in early 2014 to build a system that could profile individual US voters, in order to target them with personalised political advertisements.

Christopher Wylie, who worked with a Cambridge University academic to obtain the data, told the Observer: “We exploited Facebook to harvest millions of people’s profiles. And built models to exploit what we knew about them and target their inner demons. That was the basis the entire company was built on.”

. . . .

The data was collected through an app called thisisyourdigitallife, built by academic Aleksandr Kogan, separately from his work at Cambridge University. Through his company Global Science Research (GSR), in collaboration with Cambridge Analytica, hundreds of thousands of users were paid to take a personality test and agreed to have their data collected for academic use.

However, the app also collected the information of the test-takers’ Facebook friends, leading to the accumulation of a data pool tens of millions-strong. Facebook’s “platform policy” allowed only collection of friends’ data to improve user experience in the app and barred it being sold on or used for advertising. The discovery of the unprecedented data harvesting, and the use to which it was put, raises urgent new questions about Facebook’s role in targeting voters in the US presidential election. It comes only weeks after indictments of 13 Russians by the special counsel Robert Mueller which stated they had used the platform to perpetrate “information warfare” against the US.

Link to the rest at The Guardian

PG is interested in these stories, which blossomed over the weekend not for the political angle (he suspects someone associated with either presidential campaign would have purchased the information from Cambridge Analytica given the opportunity), but as an example of a 21st century quandary over the ownership and control over a sort-of property right to intangible information about individuals.

As a predicate, if you have ever clicked on an “I accept” button in the process of using a website or other online information resource, you have almost certainly agreed that the proprietors of the website can do all sorts of things with the information you provide them in the form of clicks, comments, etc., etc. as you examine this or that on the site.

PG and his ilk are the only people who ever read these Terms and Conditions and then only for ideas that may be helpful in drafting additional Terms and Conditions documents for clients of the ilk. PG speculates that no one reads Terms and Conditions documents unless someone is paying them money to do so.

The ownership and use of the information left by millions of Facebook visitors who post cat photos for their friends is also interesting. Facebook, based upon its Terms and Conditions which cat lovers do not read, asserts that it owns and controls this online information because people came to Facebook and Facebook collected that information from them. Nobody else is supposed to collect personal information that people voluntarily disclose online except Facebook.

If PG understands the OP and related stories correctly, someone created an app and placed it on Facebook per Facebook’s Terms and Conditions for app developers. (Facebook has Terms and Conditions for every commercial occasion.) People who used the app could receive something of value to them if they provided information via some sort of online quiz or test. Those who received this information used it derive more information (which happens trillions of times per day everywhere on the internet).

Then, Russians!

Of course, everyone knows that Russians have superpowers when it comes to US elections. It’s almost as if Supreme Leader Putin himself is marking the ballots of millions of Americans who are too dense (because they don’t live in the New York-Washington corridor) to understand what is happening to them when Vlad’s voice comes into their heads and commands them to vote Trump.

Facebook is bad because it did something it’s done a million times before (including, almost certainly, for Russians and Dr. Evil).

PG says Facebook is innocent because Subparagraph 43.Z.(19) of its Terms and Conditions for app developers says, “No bad people allowed on Facebook. This includes you, Vlad!”

A couple of final thoughts:

  1. Facebook is in the business of making profits from the personal information it collects from each of its millions of users. It induces visitors to disclose various bits of information (I like cat pictures! Give me more!), then sells access to large packets of those visitors to advertisers, political hacks, etc., without regard to the race, religion, political orientation or the hidden evilness of the purchasers.
  2. Nobody cares if Facebook sells a packet of 10 million lovers of cat pictures with all their personal information to an advertiser (Click here for more cat pictures!) so long as Facebook won’t sell anything to people of which the commentariat disapproves. Glasnost and Gorbachev were fine. Vlad is bad.
  3. Regardless of politics, most of the major media organizations in the US (and maybe The Guardian, too) appear to have misplaced their sense of proportion as they dive down one rathole or another in search of a conspiracy theory to explain why some people voted in an unexpected manner. Their collective reasoning abilities seem to have devolved into: Vlad is bad. Trump is bad. Ergo, they must be working together.

Information is amoral and apolitical.

Despite whatever agreements Facebook’s able attorneys can devise, information in electronic form is the slipperiest collection of electrons in the universe. It goes all over the place and you can never track it all down. While it can disappear in an instant, it will still be on someone’s hard drive fifty years from now.

Generally speaking, Terms and Conditions are a sort of legal kabuki dance.

Nobody reads them. Everybody knows that nobody reads them. If, by some accident, a layperson were to read them, he/she would not understand them and could not be certain that he/she was acting in accordance with them.

However, we’ll pretend they’re legally binding and subject to respect and meticulous obedience under the full majesty of the law.

Whenever something embarrassing happens online, attorneys throughout the tech world review the Terms and Conditions of their clients. Since there are no perfect Terms and Conditions, counsel will tweak some provisions, adding several hundred more words.

The new Terms and Conditions will appear. Nobody will read those either. But everybody will pretend the latest problem is solved.


What’s the Best Way to Promote Literature in Translation?

26 February 2018

From The Omnivore:

You may have heard that the National Book Foundation is launching a new annual award for best work of translated fiction or non-fiction. It’s welcome recognition for an area of publishing that’s exploded in recent years, and a return to form, since the NBA gave out a translation for sixteen years, before stopping in 1984.

. . . .

How much has changed for the fortunes of international writers since 1984! For one thing, in the US, there are a lot more translations, by a lot more translators. That writers from all over the world are finding audiences is due in no small part to their craft, as well as the indefatigable publishers, periodicals, and university programs that give literature in translation consideration and focus.

Still, translations play the underdog, because America’s reading habits, compared with those of other countries, are notoriously provincial. An often-cited statistic is that, while in most countries between thirty and sixty percent of books published are translations, here it’s only three percent. This is popularly known among translation advocates as the “Three Percent Problem.”

. . . .

To get a handle on the issue, we reached out to Esther Allen, a professor, writer, and the translator of many books, including Antonio di Benedetto’s Zama. “The three percent figure was drawn from a fairly impressionistic 1999 NEA study that covered only literary fiction and poetry — roughly 3% of which (300 books out of roughly 10,000 literary titles that year) was translated from another language,” she said in an email. Allen was part of the research team. But that sampling, she suggests, can hardly have been representative, since literature and poetry make up a sizeable majority of translations. “It was never accurate as a total percentage of all books published, but that has been what it’s taken to mean. If you just look at all books published in 1999 (roughly 100,000) the figure should be more like .03%.”

. . . .

So what about a challenge to address what I’ll call the Zero Percent Problem — that is, finding, translating, and accounting for literature from countries that have otherwise been overlooked by translators, and totally inaccessible to English-language readers?

Three notable examples (and believe me, there are more): Honduras, Thailand, and Vanuatu. Honduran literature, despite being written primarily in Spanish, a language that is well-translated, remains untranslated. Thailand because its language isn’t widely spoken or studied outside of the country — in fact, the first Thai work of literature by a living writer to appear in an English translation officially only did so last year, despite all signs indicating a thriving Thai literary culture. Vanuatu because reportedly only one novel has ever been published by a native Vanuatan, a work that only appeared a decade ago, meaning if you’ve read it, you’ve read all of Vanuatan literature. Crazy.

Link to the rest at The Omnivore

PG cannot resist pointing out that, in the United States, the publishers that make decisions about which books in translation to publish are virtually all located in New York City and mostly staffed by people who grew up and/or went to college within 300 miles or so from New York City.

Thus, the statement made in the OP, “America’s reading habits, compared with those of other countries, are notoriously provincial,” is definitely reflective of parts of NYC, and NYC’s opinions (often based on rumors and stereotypes) of the rest of the United States.

PG suggests that if a person grew up near NYC, went to college in Massachusetts or Connecticut and has taken a couple of trips to the West Coast, he/she is less than an expert on the United States and its reading tastes.

PG has been interested in the East Coast reactions to Hillbilly Elegy: A Memoir of a Family and Culture in Crisis by J.D. Vance, an author whose family (per the cover description on the book) lived poor in the Appalachian parts of Kentucky, then moved north to Ohio, but were never able to fully escape “the legacy of abuse, alcoholism, poverty, and trauma so characteristic of their part of America.”

Here are a collection of excerpts from reviews written by people from pretty much the same background as those who staff New York publishers:

“[A] compassionate, discerning sociological analysis…Combining thoughtful inquiry with firsthand experience, Mr. Vance has inadvertently provided a civilized reference guide for an uncivilized election, and he’s done so in a vocabulary intelligible to both Democrats and Republicans. Imagine that.” (Jennifer Senior, New York Times)

“[Hillbilly Elegy] is a beautiful memoir but it is equally a work of cultural criticism about white working-class America….[Vance] offers a compelling explanation for why it’s so hard for someone who grew up the way he did to make it…a riveting book.” (Wall Street Journal)

“[Vance’s] description of the culture he grew up in is essential reading for this moment in history.” (David Brooks, New York Times)

“[Hillbilly Elegy] couldn’t have been better timed…a harrowing portrait of much that has gone wrong in America over the past two generations…an honest look at the dysfunction that afflicts too many working-class Americans.” (National Review)

[A]n American classic, an extraordinary testimony to the brokenness of the white working class, but also its strengths. It’s one of the best books I’ve ever read… [T]he most important book of 2016. You cannot understand what’s happening now without first reading J.D. Vance. (Rod Dreher,The American Conservative)

“J.D. Vance’s memoir, “Hillbilly Elegy”, offers a starkly honest look at what that shattering of faith feels like for a family who lived through it. You will not read a more important book about America this year.” (The Economist)

“[A] frank, unsentimental, harrowing memoir…a superb book…” (New York Post)

PG is substantially less startled and amazed by Vance’s story, because variations of that story can be found in hundreds of different parts of the United States of which the reviewers were apparently unaware prior to reading Vance’s book. He suggests a visitor to a welfare services or public defender or Legal Aid office in virtually every state would encounter people with the same sort of problems Vance describes.

On the other hand, should a visitor to the middle-class neighborhoods in the same communities where those welfare services, offices were located would find successful and intelligent people with successes, experiences and aspirations equally alien and unknown to the publishing class.

PG suggests that part of the success of many indie authors and their books arises from the substantially deeper and more nuanced understanding those authors have of enormous swaths of readers and their communities that are terra incognita for the acquisition editors working for publishers in New York City who regard themselves as taste-makers for American readers.

Is arbitration the answer to settling disputes in the art world?

25 February 2018
Comments Off on Is arbitration the answer to settling disputes in the art world?

From Apollo:

Privacy has long been of utmost importance in the art world. But in the context of the recent global move towards transparency in business and finance, the art market has increasingly been the subject of criticism for its perceived opacity. A great deal of publicity has been generated by exceptional cases in which criminal investigations have been launched against people alleged to have laundered money through art transactions: take, for example, an embezzlement case being investigated by the US Department of Justice in which Christie’s appears to have been used by the Malaysian sovereign wealth fund 1MDB to purchase art worth millions of dollars.

However, most collectors, dealers and galleries wish to preserve their privacy not because their behaviour is untoward, but because individuals’ collections are personal and part of their private affairs. Sometimes collectors are compelled to sell artworks due to financial problems that they wish to keep secret; in other cases, privacy can add to the allure of artworks that have been held in an exclusive collection. Obviously, businesses operating in the art market always need to remain vigilant, and be mindful that they do not become vehicles to facilitate money laundering or any other criminal or fraudulent activity; it is only if they are vigilant from within, by keeping strict checks and balances in place and reporting anything that looks wrong, that the market may be able to maintain and preserve the level of privacy at which it often prefers to operate.

Art-related disputes between collectors and dealers, or between buyers and sellers and/or auction houses arise all the time. Such parties often find themselves the subject of court proceedings that are entirely public, and often include the details of private affairs and finances relating to the dispute. The threat of publicity can be such that parties with good claims may abandon them without recompense because they simply do not wish to go through with court proceedings.

If the dispute relates to the authenticity of an artwork, court proceedings can have disastrous implications for that work’s value: where authenticity has been called into question, however weak the arguments, any future prospective buyer is bound to hesitate, and certainly not offer the price they might have done prior to public court hearings.

. . . .

Arbitration, particularly in London (which has a well-developed arbitration jurisdiction), can provide a suitable forum for resolving art disputes in private. Importantly, at this point it is also a good way to make sure that any decision granted can be enforced in most countries around the world, irrespective of the result of Brexit negotiations – which, until there is greater clarity in the negotiations, cannot be said of cases heard in the British courts in respect of other countries in the EU.

In arbitration, disputes are resolved with binding effect by a person or persons acting in a judicial manner in private, rather than by a national court of law that would have jurisdiction unless the parties have prior agreement to exclude it. It requires a decision by the parties, at the time of making their agreement, to take any dispute outside of the court system and have it settled in private by an arbitrator jointly funded by the parties. Such an arbitrator, usually an experienced lawyer, would have the role of a judge, and their decision would be entirely binding and enforceable in most countries under the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards (1958).

. . . .

Professionals in the art world increasingly prefer to put paperwork in place rather than operating, as in the past, on the basis of handshake agreements.

Link to the rest at Apollo

PG says arbitration has application to the publishing world as well.

Under a typical Big Publishing contract, if there is a dispute, it will be handled in New York City. If the author lives anywhere but the state of New York, either party can file or ask for removal to the US District Court in the Southern District of New York.

This means that a US District Judge will be in charge of trying the case. District Judges are usually well-qualified for their work, but their work is not specialized. They’ll handle criminal and civil cases, including a great many drug cases. It is unlikely that a typical Federal Judge has ever seen a publishing contract before. Since criminal cases take precedence for constitutional reasons, civil cases, such as a dispute between an author and publisher, get bumped to pretty close to the bottom of the priorities list.

The District Judge may also assign the case to a Federal Magistrate who works with the District Judge. While some magistrates are well-qualified, others are less-qualified than a typical District Judge. The magistrates are also overwhelmed with criminal cases.

Most criminal cases are settled via plea bargain or dismissal for errors on the part of law enforcement. Many civil cases are settled by the parties while awaiting trial, sometimes because one party runs out of money. Others are dismissed on pre-trial motions because of defects in pleadings, etc. Only a relatively small number of cases are typically taken to trial before a magistrate and even fewer before a District Judge.

Contested civil cases like a dispute between an author and a publisher which are not dismissed during preliminary jousting between the parties can take 2-3 years, sometimes longer, (and sometimes much, much longer) to actually reach a trial.

By comparison, arbitration is handled by an experienced attorney who is knowledgeable about the subject matter in dispute. The Arbitrator (it can also be a retired judge with similar qualifications) is typically more active during the earlier parts of the arbitration, looking for shortcuts, pressuring the parties to pare away peripheral matters, etc.

The arbitrator is chosen by the arbitration agency (often the American Arbitration Association) based upon his/her expertise and evaluations of prior arbitrations conducted by the arbitrator. However, if either party objects to a particular arbitrator due to something like potential bias, another arbitrator may be appointed.

The arbitrator is paid a fee for arbitration services. Generally speaking, each party posts 1/2 of the anticipated fee. Depending upon the terms of the underlying contract and/or arbitration agreement, the arbitrator may require that the losing party pay arbitration costs and/or attorney’s fees of the winning party. Generally speaking, it’s probably a good idea for each party to assume he/she/it will pay their own attorneys fees and half the arbitration fees.

After the arbitration is complete, each party (or their attorney) is asked to evaluate the arbitrator’s performance, including how quickly the arbitrator moved the case to conclusion. The arbitrator may or may not receive future arbitration appointments based upon the evaluations of the parties.

It is common for the arbitrator to schedule some time for the parties to discuss settlement prior to the hearing. The arbitrator may participate in these discussions to help reach a settlement. Unless the parties and their attorneys are within a relatively short distance of the arbitrator, settlement conferences are often handled by phone.

The arbitration is set for a specific time and place and is very unlikely to be postponed or rescheduled absent serious illness or some similar reason. One of the ways the arbitrator is evaluated is by how long it takes the arbitrator to move a matter to hearing and to deliver a final verdict.

If both parties agree, either in the original contract between them or otherwise, the arbitration can be confidential. By contrast, federal court records are generally open to the public for examination.

In an earlier day, before PG stopped handling litigation matters, he represented clients in both litigation and arbitration matters. The arbitrations were generally faster and the qualifications and subject matter knowledge of an arbitrator with respect to nature of the dispute were better than a typical trial judge, who is a generalist due to the wide range of cases that come into his/her court.

What about costs? Each dispute is unique in some ways, so there are no hard and fast rules. A judge-tried case is overseen by a judge who receives a salary paid by the government. As mentioned before, an arbitrator is paid by the parties. On the other hand, in both a trial and arbitration, typically the parties are each paying their own attorney. If there are a couple of years between filing a civil court case and trial, the attorneys won’t sit around doing nothing during that period and fees will mount up as discovery matters, including depositions, examination of documents and records, etc., happen.

If the losing party is unhappy with the court’s decision, he/she/it may file post-trial motions that require a response from the winning party, through the attorney. If the losing party files an appeal, the winning party has a lot more attorneys fees to look forward to.

In an arbitration of a contract dispute, an arbitrator may be able to take a matter to a final decision within a matter of a few months. Typically, arbitrator’s decisions are not subject to appeal.

In PG’s litigation experience, a drawn-out court matter is a definite drain on the emotions of both parties, to say nothing of their bank accounts. If a case is set for trial, then postponed, that’s an additional drain.

As far as cost differences between arbitration and a civil trial, it depends. If the civil trial is a drawn-out matter, arbitration is probably cheaper, even if the parties are required to pay the arbitrator. A good arbitrator is also a good and active case manager, working with the parties to resolve the case and discouraging or denying permission to either party to try to slow the case down. Since the arbitrator is already an expert in the subject of the dispute, it is not necessary for the parties to educate the arbitrator about the legal background in which the case takes place, unlike the parties would do with a judge.

As usual, PG is a lawyer, but he is not your lawyer unless you hire him to be your attorney. PG’s comments are a general discussion of the topic, so don’t take any of this as legal advice. You obtain legal advice by hiring an attorney.


From Watchmen to Catch-22: can TV tackle ‘unfilmable’ books?

21 February 2018

From The Guardian:

In recent months, a spate of books has been adapted for TV, with Joseph Heller’s Catch-22, Ray Bradbury’s Fahrenheit 451 and Dave Gibbons and Alan Moore’s Watchmen in varying stages of production. They share something in common: all have been made into films – none of which have worked. The film versions had prestige directors Mike Nichols (Catch-22) and François Truffaut (Fahrenheit 451), while Zach Snyder took on Watchmen with a $120m budget. But despite the big names with big budgets, they couldn’t quite pull it off.

Early attempts at TV adaptations of notoriously unwieldy literary creations haven’t been straightforward. Amazon had an ill-advised crack at F Scott Fitzgerald’s unfinished novel The Last Tycoon, the second Fitzgerald project it had taken on after its original series (Z: The Beginning of Everything) about his relationship with his wife Zelda. Widely felt to misfire (“there’s none of the chemistry, the fire and thunder of the great writer” wrote Sam Wollaston), The Last Tycoon went the way of Elia Kazan’s equally soporific 1976 movie, which – despite a cast that included Robert De Niro, Jack Nicholson and Jeanne Moreau, and a Harold Pinter screenplay – fell flat and would be the director’s last film.

TV, with its capacity for long-form storytelling, can suit these “unfilmable” projects. Turning movie adaptations of novels into TV shows has worked in varying degrees. Hannibal, Bates Motel and The Exorcist were huge successes, while others, such as the Stephen King adaptation The Mist, and the woeful Rosemary’s Baby failed dismally. It was clear that material ideally suited to the film format was stretched too thinly to justify a series.

. . . .

So with scorn from authors, and scepticism from fans, what prompts these attempts at the unfilmable? Ego is a consideration, and a desire to succeed where others have failed. With the advance of special effects, previously challenging books are now within the realm of possibility. Tolkien’s Lord of the Rings trilogy is the best example of this, with Amazon’s eye-wateringly expensive take on the books currently in development. The need for streaming sites to seek their answer to huge hits such as Game of Thrones may also be a factor. Adaptations of ambitious books make headlines, fuel interest and – if done correctly – can be spun out into decades-long franchises.

Another unfilmable project that fits into the epic lineage is Martin Freeman’s planned series version of John Milton’s 17th-century poem Paradise Lost, which producer Laurence Bowen has described as a “biblical Game of Thrones”.

Link to the rest at The Guardian

PG suggests that John Milton is turning over in his grave.

Milton was buried at St Giles-without-Cripplegate church in London in 1674. Here’s a photo of Milton’s memorial inside the church.



Milton dictated Paradise Lost, consisting of ten books with over ten thousand lines of blank verse, to a series of scribes, including his daughters, because he was blind.

He lived in a turbulent era which included the English Civil Wars between the Royalists and the Parliamentarians, during which King Charles I was tried and executed for treason and his son was exiled.

Religious upheaval was a constant condition during Milton’s life. The establishment of the Church of England as the official religion of the realm and persecution of British Catholics had occurred less than 100 years prior to Milton’s birth. The bishops of the Church of England actively participated in the English Civil Wars.

The Protestant Reformation led to a significant religious and political contention in Europe that carried over into England as Calvinist and other religious dissenters from the Church of England were severely persecuted by the government. Milton lived during the latter stages of the Thirty Years War, fought between Protestant and Catholic European states, and one of the most destructive in European history. For Americans, Milton lived and wrote during a time when English religious minorities, Pilgrims and Puritans, migrated to what would become the United States to escape persecution in Britain.

Paradise Lost was a deeply religious work created during a time when religion played a central role in personal and political life and has had a profound influence on authors and other artists in the centuries following its publication.

Bringing Paradise Lost down to more recent era, in 1942, C.S. Lewis wrote a preface of about 150 pages to a new publication of the epic poem.

Reflecting the times in which it was written, among other things, Paradise Lost is the story of a civil war between heaven and earth, God and Satan.

Milton was also a staunch advocate of freedom of speech during a time when any publication in England required a government license before it could be printed and sold. Such licensing laws first appeared during the Catholic inquisition. In 1644, Milton wrote Areopagitica in support of unlicensed printing.

Areopagitica continues to influence thought about freedom of expression. The United States Supreme Court has referenced Areopagitica in its case opinions interpreting the First Amendment of the United States Constitution.

From Wikipedia (citations omitted):

Most notably, the Court cited Areopagitica in the landmark case New York Times Co. v. Sullivan to explain the inherent value of false statements. The Court cited Milton to explain the dangers of prior restraint in Times Film Corp. v. City of Chicago et al. Later, Justice Douglas concurred in Eisenstadt, Sheriff v. Baird, citing the pamphlet to support striking down restrictions on lecturing about birth control. Finally, Justice Black cited Areopagitica when he dissented from the Court’s upholding of restrictions on the Communist Party of the United States against a free speech and free association challenge in Communist Party of the United States v. Subversive Activities Control Board. In each instance, Milton is cited by the Court’s members to support a broad and expansive protection of free speech and association.

Quotes from Areopagitica:

Books are not absolutely dead things, but do contain a potency of life in them to be as active as that soul was whose progeny they are; nay, they do preserve as in a vial the purest efficacy and extraction of that living intellect that bred them.

. . . .

And yet, on the other hand, unless wariness be used, as good almost kill a man as kill a good book. Who kills a man kills a reasonable creature, God’s image; but he who destroys a good book, kills reason itself, kills the image of God, as it were in the eye. Many a man lives a burden to the earth; but a good book is the precious life-blood of a master spirit, embalmed and treasured up on purpose to a life beyond life. ‘Tis true, no age can restore a life, whereof perhaps there is no great loss; and revolutions of ages do not oft recover the loss of a rejected truth, for the want of which whole nations fare the worse.

. . . .

We should be wary therefore what persecution we raise against the living labours of public men, how we spill that seasoned life of man, preserved and stored up in books; since we see a kind of homicide may be thus committed, sometimes a martyrdom, and if it extend to the whole impression, a kind of massacre; whereof the execution ends not in the slaying of an elemental life, but strikes at that ethereal and fifth essence, the breath of reason itself, slays an immortality rather than a life.

. . . .

Where there is much desire to learn, here of necessity will be much arguing, much writing, many opinions; for opinion in good men is but knowledge in the making.

. . . .

Though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously, by licensing and prohibiting, to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter?

. . . .

It is not possible for man to sever the wheat from the tares, the good fish from the other fry; that must be the Angels’ ministry at the end of mortal things. Yet if all cannot be of one mind — as who looks they should be? — this doubtless is more wholesome, more prudent, and more Christian, that many be tolerated, rather than all compelled.

. . . .

Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.

PG is concerned about the treatment of Paradise Lost, the masterwork of a true literary and moral genius, by 21st century Hollywood movie producers.

Thoughts on Apple Books

25 January 2018

From Digital Book World:

The news of Apple rebranding the iBooks Store to Apple Books, and preparing a fresh new entry in the digital publishing landscape, is welcome.

Apple’s bookstore, much like many other parts of the company these days, has suffered from neglect. The store, as it is currently, evokes a vision of tumbleweed blowing through an empty desert: nobody’s home, nobody cares, and it’s quite clear there is no larger strategy present.

Apple did the right thing by going outside the company and hiring Kashif Zafar, by all appearances an accomplished publishing business mind, originating out of an engineering background. That is, frankly, exactly what Apple needs, as their digital book store needs to be re-engineered from the ground up.

. . . .

1) Deploy iBooks Author anew

Apple, believe it or not, comes right out of the gate with one strong competitive advantage: they have a relatively-easy-to-use, vertically-integrated, HTML5-based authoring tool that has grown an international user base since it was introduced in 2012.

When iBooks Author was first released, it was ahead of its time. And like everything that is ahead of its time, it was poorly understood and not nearly as well utilized as it should have been.

Fast forward six years later, and digital book readers are clamoring for new types of experiences.

The biggest problem with iBooks Author has always been the mediocrity of the iBooks Store. Publishers producing phenomenal content using iBooks Author have met poor sales, thanks to poor searchability and poor discoverability, over and over and over again.

. . . .

3) Apple Books needs to match Amazon on key criteria

The Apple Books Store needs to be as searchable as Amazon. Historically, the search function within the iBooks Store has been flat-out broken.

The Apple Books Store needs to be creative in how it makes books discoverable.  Undoubtedly, this will be a combination of algorithmic competency and human curation.

With both searchability and discoverability, Siri needs to play a role as Apple ramps up their voice-first computing efforts. Intelligent voice integration needs to be part of the fabric of the Apple Books experience.

The Apple Books Store needs to be author and publisher-friendly. This means giving authors and publishers deep flexibility with pricing (including bundling / discounting), deep flexibility in how their books are represented within the store (control over author-specific landing pages would be a good place to start), and deep flexibility in marketing (including ability to have hosted video book trailers, deep control over sample content, and more).

There is plenty of opportunity for Apple to compete here. Every single product page on looks precisely the same way, in exactly the same format. Amazon’s practical blandness can be bested by a highly-functional, colorful and vibrant, individualistic approach that holds serve in key areas while innovating beyond what Amazon offers in others.

. . . .

5) Go cross-platform anywhere and everywhere

Apple’s walled-garden approach is not compatible with the interests of readers, who want to be able to read their purchased books on whatever device they choose.

. . . .

The publishing industry – the ENTIRE publishing industry, which goes far, far beyond just traditional publishers obviously – desperately needs a viable competitor to Amazon.

Link to the rest at Digital Book World

PG says competition is always good.

Apple used to be a fierce competitor and achieved dominant success in the iPhone/iPad markets.

Apple also did a phenomenal job of linking its products to a cool personal style/lifestyle image. You might be working a temp job for minimum wage and living in a sub-basement closet, but when you hit the street, your iPhone instantly improved your image so much you took a selfie.

Because of high product quality and that image thing, Apple managed to price its products higher than its competitors and still maintain a dominant sales position.

In some categories.

In personal computers, Apple had a 7% share worldwide in 2016 compared to Lenovo at 21%, HP at 20% and Dell at 16%. Apple makes great computer hardware, but it’s dominant only in some niche markets in a Windows world. iPhone and Windows desktop/laptop is a typical tech combination.

For a growing number of small web startups, Chromebooks are the thing for everybody who is not a programmer. Marketing doesn’t need Macs to run the blog, build a presence on Twitter and Instagram and check out what competitors are doing online.

Apple is really a phone company. It doesn’t dominate any other significant markets. (And Apple is definitely not dominant in major Asian phone markets.)

PG isn’t the only one who suspects that Steve Jobs was the head magician who made all the sub-magicians at Apple work right and not do ordinary things.

The most important post-Jobs product launch happened with the iPhoneX in September.

Apple-watchers more expert than PG think the Apple magic that usually accompanies a major iPhone launch just wasn’t there. Apple fanboys and fangirls all stood in line and jumped in right away, but the far bigger wave that usually follows may not have been so large. Apple’s first post-iPhoneX earnings report is anxiously awaited.

Back to the main point, PG thinks the ebookstore ship has sailed – from Seattle. As the old saying goes, you only get one chance to make a good first impression and Apple blew that chance with its first store. From an author standpoint, PG marked it as undesirable right after its opening when it appeared that Apple hardware was necessary to prepare books for the store.

The Amazon bookstore is 100% platform agnostic and Amazon doesn’t care if you access it from an iPhone or a homebrew Linux computer. Amazon works hard to create a single great customer experience without spending any time or money on enhanced Apple-only features.

Plus Amazon has a huge cache of data about how to sell books and what the world’s largest collection of online customers buys – both inside and outside of the bookstore. In the US, in France, in Canada, in Scotland, in Chicago, in Dayton, in Boulder, in Bel Air, in Steamboat Springs, in Rocky Comfort and Rhyolite.

PG doesn’t see many people talk about the huge value for prospective customers that lives in Amazon’s product reviews, including the millions of book reviews it has collected.

It’s easy to make snide comments about the intelligence, education and motivation of some of the reviewers, but most book buyers have developed a pretty good filter to distinguish quality Amazon reviews from those that originated in a packed room in India.

PG suggests that large numbers of reviews and the metadata Amazon presents when a book has received a large number of reviews – Top Customer Reviews, Most Recent Customer Reviews, Also Boughts and Rated by Customers Interested In, which shows how the customers interested in specific topics rated the book PG is considering, are valuable assets for shoppers of all tastes.

Even if Apple copies all of Amazon’s bookstore features, the lack of this giant pile of data from previous buyers will produce an inferior experience.

As far as indie authors are concerned, the key indicator for PG will be whether Apple is willing to meet or beat Amazon royalty rates.

He noted that the latest (and last?) version of the Nook Store has a top indie royalty rate of 65%. That the big brains at Barnes & Noble couldn’t bring themselves to go all the way to 70% is one of the many reasons why the company is circling the drain.

When the big brains at Apple hit speed dial to call PG about their new bookstore, he’s going to say, “75%. 80% for bestsellers.”

PRH Buys Rodale Books Assets

10 January 2018

From Publishers Weekly:

After completing its purchase of Rodale Inc. last week, the Hearst Corp., which announced the deal in October, quickly turned around and sold Rodale’s trade book publishing assets to Penguin Random House. Terms of the acquisition, which involves more than 2,000 backlist titles and 100 frontlist books, were not disclosed.

With the purchase, Rodale Books’ adult nonfiction titles will be released under the Rodale Books imprint. It will become part of the Crown Publishing Group, and will be an imprint of its Illustrated and Lifestyle division, comprised of the Harmony, Ten Speed Press, and Clarkson Potter publishing programs, overseen by Aaron Wehner, senior v-p of the unit’s imprints.

. . . .

It wasn’t clear if any Rodale employees will be making the move to Crown. A PRH spokesperson said the company’s priority is to publish Rodale’s frontlist and backlist books “with care and enthusiasm.”

. . . .

For an interim period, Rodale’s staff will assist with the transition.

Link to the rest at Publishers Weekly

The release of this news is a good time for PG to remind Rodale authors and other authors who have signed publishing contracts that did not include written versions of the promises, proposals, etc., that were discussed prior to signing that those promises are almost certainly not enforceable against PRH.

As indicated in the OP, it sounds like some or all of the Rodale people will be fired, so any moral obligation to do something for an author that the original Rodale editor might feel is also out the window. The new PRH editor may or may not care as much about your book as the departed Rodale editor did.

Since the typical publishing contract with a traditional publisher ties up an author’s book for the full term of the copyright (the rest of the author’s life plus 70 years), PRH may sit on an author’s book for a long time or issue a quick and dirty ebook only version with no promotion if the publishing agreement requires “publication” within a certain period of time, etc.

The OP is also a reminder that the typical publishing contract can be sold or transferred to another publisher, including a publisher the author specifically did not want to work with.

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