The First Sale Principle and What it Means to You

Show of hands: If you had to pay the copyright holder when you decide to resell something, say that year-old laptop upon which you’ve been writing the Great American Novel, since your good Uncle Fester just gave you a new one, would you resell it? More to the point, would you have bought the thing in the first place?

That, my friends, is precisely what may happen, and soon. At the end of the month, the US Supreme Court is hearing Kirtsaeng v. John Wiley & Sons, which came to the Supreme Court from the US Second Circuit Court of Appeals. Kirtsaeng was a Thai student who was studying in the US. He discovered that he could get the text books he needed much cheaper in Thailand than here in the US, so he got his family to buy them there and ship them to him. When he was done he sold them all and made a mint. That, of course, ticked-off John Wiley & Sons, who sued Kirtsaeng for copyright infringment.

Kirtsaeng’s defense is the First Sale Doctrine, which was recognized in the High Court in 1908 as a part of American copyright law. The Doctrine says that you can resell whatever you own without considering the copyright holder because their rights were satisfied on the first sale. According to the Second Circuit, this applies only to products developed and manufactured in the US. In other words, since Kirtsaeng’s books were printed and bound in Asia, they are not covered under the First Sale Doctrine.

As writers, we use a lot of technology from overseas, computers, software, tablets; we use books, all sorts of things in pursuit of the perfect metaphor. It could mean hanging onto old technology or outdated software out of fear of paying royalties for selling the old stuff on eBay; it could mean buying all American, but are there any computers actually manufactured here anymore? It could mean stiff price hikes as the manufactures “compromise” by front-loading the resale royalties into the original sale price. One thing is certain, anyone who uses technology will be paying much more if the Supreme Court upholds the Second Circuit’s ruling. Of course if they do, then it will be up to Congress to change the law to include foreign-made items in the Doctrine, but how long will that take, if it happens at all? Let’s not forget those pesky lobbyists and how money speaks louder than either morality or common sense.

So, while we are waiting, let’s play a game. I know that you are all creative souls, so think a moment and see if you can come up with some of the ludicrous effects a Supreme Court affirmation of the Second Circuit’s ruling would have. Come to think of it, leave your idea as a response and let’s see just how ridiculous this can get.



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Out of the Shadows

OK, I admit it. I not on Team Edward. Come to think of it, the tortured vampire looking for immortal love tends to make me cringe. Sure, I make an exception for Barnabas Collins (the Jonathon Frid version, not the Johnny Depp version) because he brings so much more to the table with the ongoing masquerade and all the cat and mouse games. I also cut Barnabas some slack because, unlike the vapid, tortured things with their wide, wet eyes and emo poses that seem to dominate the popular media these days (and no, I am not talking about the democrats this election year), there is something about Barnabas that harkens back to the granddaddy of them all, Dracula.

The story of Dracula is one, not of love or sex though both are elements, but of invasion. What makes him worse than an invader from another country or culture is his outsideness. He is inhuman, an otherworldly predator that not only kills, but toys with, seduces, and converts his victims. There is no romance about it, it is domination and submission. Forget the Victorian lace, we’re talking black leather here; master and slave. Invasion, occupation, dominion. Those who willingly submit are no different from the Vichy French in World War II, except in their mode of collaboration.

In the series, Barnabas invades the world of Collinsport, takes territory, the Old House, and begins to work his influence, enslaving Willie Loomis and capturing Maggie Evans, trying to bend her mind to his own purposes; his ultimate goal to turn her into his lost Josette and make her an immortal vampire like himself. In the recent movie, Barnabas is rendered as a troubled antihero, whose devotion to his family must be balanced by the killings he commits to slack his thirst. Note, I do not refer to them as murders. As a vampire, the relationship Barnabas, or Dracula, have to their victims is the same one we human beings have to beef cattle. It may not be very flattering but it is the basis of much of the horror inspired by the vampire.

It is also the basis of much of his power. The terror of confronting the vampire is the terror of knowing that we cannot save ourselves, that we are totally under the otherworldly monster’s control and that our fate will be one of its choosing, one that serves its purpose alone. Anything less can be had for a fee from some professional dominatrix, or for free at a S&M club. This is not to say that the vampire must be a villain. The undead can be heroic, but they have to be who and what they are. Depp manages to bring that out of Barnabas Collins, which tells us it can be done. Come to think of it, there are plenty of monstrous heroes out there that are heroic and yet stay true to who and what they are. Marvel’s Incredible Hulk comes to mind, Gamera, the giant flying turtle from Japan likewise. Being a monster is not a choice. The choice is whether you use your monstrous powers for good or evil.

Which brings me back to Edward, and all of the others developed along those lines. What is the point? Where is the horror? Where is the feeling of touching something not of this world? It isn’t there, and maybe that is the point; the desire to make us understand the plight of the poor vampire, to give us a window into his tortured soul, to let us know that he really isn’t so bad, that he is, in fact, just like the rest of us. That turns the once noble bloodsucker into an emo poster child for moral relativism.

Rubbish. The vampire is a monster, and must always remain a monster, distinct and apart from humanity. Any attempt to bring him down to the level of humanity can only result in a tawdry caricature of his true nature.

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Lies, Damned Lies, and Statistics

Whenever we write to persuade, we usually like to cite evidence. In fact, anyone who has gone through an English Comp class will recall that their professor insisted upon it. In our deeply polarized society, there are many strident voices making arguments from both sides of the political divide, and most people rely on their preconceived notions and “guts” to determine which side is right. That means that both sides are essentially preaching to their respective choirs and to people too lazy to think about what they are hearing.

Take a good, long, hard look at this nation, the problems we face, the leadership we have, and tell me that this thoughtless attitude by the public, an attitude fostered by our media and the political class, has done us any good whatsoever. So take that look, I’ll wait…

Still waiting…

Stepped out to have a Coke…

Now I am back…

Nothing? Didn’t think so. Let’s face it, we cannot afford to be this lazy or ignorant any longer, we cannot take things at face value any longer. We have to begin to think for ourselves again. For example, let us take a look at the hot-button issue of gun control.

If you were confronted with a statistic that told you that in a given year, almost 100,000 people are shot or killed with a gun (, your visceral reaction as a typical human being would be something like “That is terrible! Something must be done!” No argument there, it is terrible, something must be done. That is the reaction that the Brady Campaign would like you to have. Then they would like you to give them money to support their anti-gun efforts. If we were talking about 100,000 innocent people, then Brady would have a good argument. The problem is that we are not talking about 100,000 innocents.

According to the FBI, which does like to break down the big numbers into demographic components, we learn that the vast (and by vast, I mean overwhelming) majority of these shootings are related to drug crimes and gang activity among young males. In other words, it is bad guys shooting other bad guys, or cops shooting bad guys. Are there tragic shootings that fall outside any youthful drug or gang activity? Absolutely. There are accidents, suicides, there are other crimes, but if the gang and drug crime are eliminated from the statistics, the remaining shootings barely amount to anything (Bureau of Justice Statistics, U.S. Dept. of Justice,

The problem is that both sides of this debate use the same statistics from the same sources and, depending on the emphasis they place on certain data, or fail to put onto other data, they can make the statistic demonstrate anything they want, whatever happens to coincide with their own position.

Mark Twain was right. When it comes to deceit, there indeed lies, damned lies, and statistics. If you rely on those—any of those—then you are lost. There is, however, a solution.

Do the unthinkable: Open your own eyes and look for yourself.

If you want to know which candidate has a better plan for your life, forget what they are saying to explain your current situation and use your own common sense. You pay too much for gasoline, so ask yourself what would most easily and simply lower those costs? Here is a hint, oil is a commodity, so the more there is, the less it costs. You want to know whether or not private gun ownership is a good idea or not, then look at places (stick to Western cultures where the issues are similar to your own unless you enjoy comparing apples to oranges) where guns are banned and see what happened. Great Britain and Australia come to mind at once, and both saw violent crime—rape, armed robbery, home invasion, etc.—rise dramatically.

Sure, it is all anecdotal, but it does get you thinking, it does make you question, and this day and age, those are two very good things to do!

Let me know what you think.


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Romney and the Joy of the Simple Message

There has been a lot of chatter today about last night’s debate. From the left the reactions range of excuses and good reasons for Obama’s performance to outrage over it. From the right, grins and gloating. The one thing that all and sundry agree on is that Romney won the debate. Why?

Consider Ockham’s Razor, the maxim that teaches us that when faced with differing and conflicting hypotheses, the truth will come from the one with the fewest assumptions. Last night, Romney’s performance was predicated on one—yes, one—assumption: The American people need jobs and it is the role of the government to foster an environment where jobs can be created. That was it. That was Romney’s message. Obama’s, on the other hand, was based on a variety of assumptions ranging from the old chestnut, “It’s Bush’s fault” to “taxes promote economic growth” to “Obamacare is identical to what Romney installed in Massachusetts” to “coal is evil and green energy is the way to go regardless of cost” to “the rich need to pay more in the name of fairness.” These are merely the ones that come to mind, but you get the idea. One assumption informs Romney’s economic views; many assumptions inform Obama’s.

I will leave it to you to choose which one is right, but the reactions this morning tell me that hitting that single, basic idea of job growth, and making that idea the centerpiece of his economic plan gave Romney an edge that Obama could not beat.

Trust in Ockham and his razor, it hasn’t let us down in over 660 years.

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Your Programs Failed: Some Thoughts on Tonight’s Debate

I was having a fairly animated conversation with a friend of mine who is so far to the right he makes me seem almost liberal. He was smug about how Obama’s policies have entirely failed and how that is all he has to run on. I asked him, “What makes you think his policies failed?”

After a moment of sputtering, he answered, “Look at gas prices! Look at the unemployment rate! You know the only reason it’s so low is that so many people dropped off the unemployment lines. Look at the taxes, the way businesses are going down the tubes, Government Motors….” he went on like this for a while and eventually wound down, finally asking me how I could find even a little achievement, a little victory, in anything this man has done since taking the presidency.

At the heart of this issue is the fuzzy, imprecise language that Orwell was railing against. People keep talking about Obama’s policies as if they actually know what those policies are. They assume that what they hear in the media is the truth, rather than propaganda, that Obama is trying and that his hands are tied by Republicans and the problems he inherited from Bush are so much worse than anyone could have imagined. They accept all this and fail to ask the one question that would explain everything we have seen since 2008. That question is, simply put, “What are the actual policies that has Obama been pursuing since his election in 2008?”

If we assume the man is not stupid, which he clearly is not; and we assume that he had a plan for the nation, which he did (remember Joe the Plumber and “spread the wealth” or “energy prices would skyrocket under my plan” from the last election?) then it has to be assumed that what we are seeing is part of an overall vision that Obama has for the country. I will leave it to you to decide what that vision is, but tonight I will be listening for Romney to ask the right question, and to demand the honest answer.

I hope he does, but I have my doubts. After all, isn’t he a politician, too?


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Legalese: A Crime Against Language

There is plenty of bad writing in the world. Sometimes it comes from sloppy thought being put to paper, and sometimes it is simply good, honest, illiteracy. It is always good to find out why the writing is bad, because then you can offer a solution. I think that I have answered one of the great “why” questions of bad writing, because after graduating law school, and spending some time in the profession, I have developed a very good grasp of legalese. You know what I am talking about, that atrociously obtuse verbiage volcanically spewed out by lawyers. It shows up in legislation, it shows up in contracts, briefs, complaints – anywhere the stained digits of a lawyer have intruded – and I understand it, and with that understanding comes the answer to why it exists in the first place.

Ready? Sitting down? There are two reasons for this onslaught of verbal refuse. Here they are…

The first is an attempt to balance precise meaning with the need to maintain argumentative wiggle room. For example: “This contract shall be construed under the laws of the state in which the contract was executed.” Seems pretty clear and first blush, but it isn’t. Shall be construed by who? Both parties? The party to be charged? Who? What if it is signed by one party and mailed out of state to the other party for their signature? Which state law controls? We can make reasonable assumptions that both parties shall construe the contract in this way, but what if evidence of an agreement to the contrary arises? Why not just say “This contract is governed by the laws of State X”? There is no construing involved, no question; just a simple, basic statement.

This brings us to the second reason: Billable hours. While there are many good and caring people in the legal profession, people who work hard and fight valiantly for their clients; in my humble opinion most lawyers seem to care more about billable hours than they do about putting out a good product, that is written documents. A dry, stuffy, complex document rife with archaic words and phrases takes longer to produce than a simple one, it causes more misunderstandings, which are more opportunities for legal action including litigation. All of that equals more billable hours, which equals more money.

 So, when you enter into a contract, make sure the document is written to your advantage, not to the advantage of the lawyer who drafts it. Keep is simple, with one idea in each paragraph, with the parties clearly identified throughout either by name or by their role in the agreement (Landlord, Tenant), with bullet-point lists where necessary that are easy to read, and language that declares the contract expresses the entire agreement and that if one part of it is struck down in court, the rest of the contract will stand and remain enforceable.

Good writing, especially legal writing, is simple and concise. Simple, concise legal documents are fair and equitable to all concerned. Tell me, especially in this day and age, don’t we all deserve a little fairness?

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Some Advice from George Orwell for this Political Season

As we wind down to Election Day, we have to parse the language the candidates use to find their real meanings, and thanks to the dismal state of the English language, it is now easier than ever for our politicians to say one thing and mean something else.

George Orwell was worried about this when he wrote:

Most people who bother with the matter at all would admit that the English language is in a bad way, but it is generally assumed that we cannot by conscious action do anything about it. Our civilization is decadent and our language — so the argument runs — must inevitably share in the general collapse. It follows that any struggle against the abuse of language is a sentimental archaism, like preferring candles to electric light or hansom cabs to aeroplanes. Underneath this lies the half-conscious belief that language is a natural growth and not an instrument which we shape for our own purposes.

Now, it is clear that the decline of a language must ultimately have political and economic causes: it is not due simply to the bad influence of this or that individual writer. But an effect can become a cause, reinforcing the original cause and producing the same effect in an intensified form, and so on indefinitely. A man may take to drink because he feels himself to be a failure, and then fail all the more completely because he drinks. It is rather the same thing that is happening to the English language. It becomes ugly and inaccurate because our thoughts are foolish, but the slovenliness of our language makes it easier for us to have foolish thoughts. The point is that the process is reversible. Modern English, especially written English, is full of bad habits which spread by imitation and which can be avoided if one is willing to take the necessary trouble. If one gets rid of these habits one can think more clearly, and to think clearly is a necessary first step toward political regeneration: so that the fight against bad English is not frivolous and is not the exclusive concern of professional writers.

Click here for the rest of Orwell’s discourse on the political effects of the deterioration of English.


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