Sep 13 2007

Brenna Lyons Hangs Up Her Bankruptcy Law Shingle

By Jane • Letters of Opinion • • Tags: ,

Brenna Lyons is way unhappy with me (Jane for those who don’t read the “stamped by” or for the bloggers (read me) who chose the incorrect author when posting guest columns)) and according to her supposedly are the Triskelion authors to whom I am doing a great disservice. Her first complaint with me was that I was somehow moderating her comments and preventing them to appear. This was a surprise to me since her epic long contributions appeared on the thread last week. But after I commented on her blog that we don’t moderate posts, she acknowledged that while it posted, it took a long time and I must have had a hand in it. I do have hands and they are places so perhaps they are doing something that they shouldn’t be doing. I’ll talk to my hands later.

Her second complaint, as far as I can tell, was that I suggested her “advice” to other authors about the bankruptcy law was inaccurate. This was wrong because Lyons claims to have done her research when she compares her contract with publishers similar to the contract between the lessee of a rental car.

I feel from the LARGE CAP POSTING IN THE TITLES and the long verbiage in the body of her posts that Lyons a) wants to be the authorial mouthpiece about bankruptcy law and b) isn’t quite getting the attention that she desires. Plus, it appears she enjoys flogging her upcoming seminar that she is “teaching” at RT 2008 about how to pick a good publisher. I felt it incumbent to reply to the plea for validity she is putting out. And to ensure all those allegedly pissed off Triskelion authors that they are totally safe in the hands of Brenna Lyons because in my experience, those people who haven’t gone to law school and who don’t practice always understand the nuances of law.

Lyons believes that there is no difference between property and intellectual property.

Personally, I do not find any difference in what I own, whether it be physical property or intellectual. The fact that the law has to state that IP is owned says a lot about the general population, though.

In my world, Copyright Act is a statutory creation meaning that without the US Legislature deciding to protect Intellectual Property, intellectual property wouldn’t be afforded the protections embodied in the Act. The Copyright Act is a delicate balance between consumer rights and inalienability of property and the encouragement of creativity (the goal behind the Copyright Act). Conversely, the real property right is a fundamental Constitutional right. The Constitution was based, in part, on the writings of John Locke and some purportedly argue that Thomas Jefferson initially drafted the Constitution to say “Life, Liberty and the Pursuit of Property.”

The Copyright Act actually contravenes the idea of the inalienability of property in that it allows Intellectual Property to be parceled out into tiny bundles and sold for a period of time. To strike the balance mentioned above, there are constraints on the rights to Intellectual Property. Those constraints involve time (a copyright is only valid for life of creator plus 70 years); first sale doctrine (once an item is sold, the purchaser has the right to do with it what she will including reselling at a profit without payment back to the original creator); fair use (the right to use the copyrighted work without permission or renumeration under certain circumstances).

Lyons asserts that the bankruptcy laws are trampling the rights of authors.

. The current bankruptcy laws allow the trustee and courts to override copyright laws, as well…which are federal laws and not even the state variety, as contracts are.

My understanding (which is contrary to Lyons and therefore not correct) is that current bankrupcty laws do not override copyright laws in anyway. Both laws are federal schemes although each state might have its own schemes. Lyons believes that because the bankruptcy court doesn’t honor the ipso facto clause that seems to mean that the bankruptcy court is overriding copyright law. The ipso facto clause is not a provision within the US Copyright Act. The ipso facto clause is an agreement between the author and the publisher and one that is unenforceable. You can agree to many things in a contract, but it doesn’t make it a legal right. A contract is merely an agreement between the parties. It creates no rights that do not already exist. If you write into a contract something that is unenforceable, it doesn’t create a legal right. But that is simply my understanding, which according to Lyons is apparently wrong.

Lyons goes on to say that a contract between the author and the publisher is essentially a rental agreement and that because it is so similar, it should not be considered the property of the estate, just as a rental car would not be considered the property of the estate. She reiterates how the bankruptcy court and trustee are allowed to disregard copyrights and contractual rights of authors.

The current bankruptcy laws allow the court and trustee to trample the copyrights and the contractual rights of authors, in the case of a publisher filing bankruptcy. This is a situation that is intolerable and must change

.

In my world, the bankruptcy laws rank creditors according to priority. Secured creditors, those people who obtain an item of value to hold against the money lent, get first priority. I.e., a bank who holds the house as security against the mortgage. Creditors who are not secured then get ranked according to legal status. There are senior classes of creditors, equity interest holders, junior classes. In the Enron bankruptcy, there were over 100 different classes of creditors. It’s the bankruptcy court’s job to determine the number and types of classes as well as who belongs where. Authors aren’t going to get special treatment because their creditor status arises out of an intellectual property claim rather than a real property claim. In my world, of course.

Any belief that these books should be thus constrained is idiotic, at best. THIS is why the bankruptcy laws must be changed and changed soon.

I probably wouldn’t use “books” and “rights” interchangeably because those two items have very different meanings. Books to the bankruptcy court are the on hand inventory which I believe was valued at 60K. Rights, on the other hand, refer to the bundle of rights that Triskelion owned at the time that it filed bankruptcy. Two completely separate assets under the law by which I operate.

Lyons goes on to “teach” more about bankrupcty law and how it interrelates with intellectual property rights and contractual interpretations. Her explanation doesn’t really match up with my understanding, but if it makes a person feel better, I guess where is the harm? Unless, of course, you are relying on the information she provides.

Oh, and one more thing. Lyons claims that I’ve been hostile to her in emails. I would be happy for Ms. Lyons to post our email exchanges. I’ve got nothing to hide. How about you, Ms. Lyons?

Send to Kindle

By • Letters of Opinion • 34 • Tags: ,