23 April 2015

Guess Who's Coming to Story Hour?

Carrie Vaughn expresses some real frustration (and wisdom) about franchise-centric art that indirectly shines some light on some of the cockroaches busy scuttling under the sink in post-Battle-of-New-York Hell's Kitchen. As many problems as there are with poor writing in franchise-centric art — and that's not just H'wood, and sure as hell not just Marvel/Disney; comics themselves are a problem, and other forms too if one looks — they are not the principle source of the problem. Writers, after all, frequently get overruled; it may be by editorial, but it's usually by Corporate. And that discloses the underlying narrative source of the problem:

Marketing personnel demand — impose — an easy, unambiguous hook as part of their sales strategies. This implicates a necessary third-person-omniscient viewpoint. To say the least, a third-person-omniscient viewpoint is inconsistent with an awful lot of serial art being produced today, and especially the best serial art of the last half-century or more in all forms and media.

This inherently rejects the fundamental marketing/branding approach itself, which inverts the entire intellectual property/trademark process. Instead of allowing a secondary meaning to develop over time in the perception of actual consumers, consistent with the Lanham Act (and corresponding European and Japanese trademark concepts), there's a Plan that must be followed slavishly in which the brand managers do everything they can to direct what that secondary meaning might be. On one tentacle, there's some reason to follow a top-down plan for certain goods; the horrible example of the Edsel still lingers in every marketing curriculum in the US, and there are equivalents overseas. The other waving tentacles, though, demonstrate that this doesn't work in the arts, as epitomized by Jar-Jar, unplanned spinoffs, and the general artistic and marketplace success of character-development-oriented serial art.

Contrary to received doctrine, brand identification in the arts is not a chicken-and-egg problem... and, more to the point, cannot be managed through any risk-avoidance strategy comfortable to quantitatively trained investors. What works for cars, at least in the short run, does not appear to work in the arts at all, or at least not in any term beyond immediate release. If it did, virtually every new and prominent recording artist would emerge via an American Idiot-type process, because that's the epitome of brand-before-substance development. If it did, there would be no Harry Potter (or, somewhat more sleazily, Twilight... or Fifty Shades). If it did, the most-popular precinematic X Man among the target audience would be just about any character except Kitty Pryde, and the subtext of race-, gender-, sexual-orientation-, and religious-minority acceptance would be absent from all serial forms of storytelling.

Explicitly including those last themes which have been hiding in Agents of S.H.I.E.L.D., and keep getting suppressed every time there's a new main-sequence film. That's really what has been going on with both Skye and Deathlok: Coulson has accepted those with gifts/powers as not just potential allies or outside resources, but as potential team-members. The marketing department isn't all that comfortable with that kind of, umm, integration, and so is constantly imposing its version of "all deliberate speed" on change — on a form of storytelling that by its very nature is inherently about unpredictable longterm development. That's not just plot development; it is most especially character development. And that's what people really care about in serial form: Not the particular events at an ambitious ad agency, but how those events relate to Don and Peggy (and Sally...); not whether S.H.I.E.L.D. can defeat a particular threat (whether one calls it "supernatural" or "Clarke's Law magic" is irrelevant), but whether female Peggy Carter and mixed-race Daisy Johnson and black cyborg Mike Peters can be accepted and have their own stories on their own terms. That sort of ambiguity frightens marketing dorks who Have a Plan... and thus we're back to Ms Vaughn's ire, all the while wondering whether this thin veneer of integration is going to lead to Problems with story hour because it doesn't fit the nonnarrative exploitation plan.

19 April 2015

Canine Education

Gary Larson, 1985Perhaps the real problem with the Hugos this year is that they're being argued from ignorance. I suggest some education. Some tutoring. And if one thinks about it, the Anglocentric linguistic gender bias in there fits, too.

Ironically, the yapping curs have also exposed a serious conceptual problem with one subset of representative democracy. The foundation of representative democracy is that one expresses one's policy preferences not by a direct vote on the policies themselves, but by supporting a proxy-holder — an elected representative. In 1980, for example, one did not vote "give a raise to every military member" or "keep military compensation the same, but raise military spending by buying more and better hardware"; one chose between Presidental candidates who appeared to stand for those positions, among others. One had to trust that the greater access to information of the elected officials would allow them to make detailed decisions that would most closely match achievable policy preferences: If there aren't enough chickens in the nation to have one in every pot for every Sunday dinner, a chicken-breeding program is sort of implied, but the representatives have to figure out how to fund it, distribute it, etc.... and deal with the resulting chicken manure.

But there's one class of government official whom we absolutely, positively don't want to be mere proxies for preexisting popular policy choices — especially when those choices arise from ignorance: Those in law enforcement. Not just, but especially, judges. That's because unlike the chicken-breeding program, a judge's role (and a prosecutor's role, and a sherriff's role) inherently encompasses the fringe cases in a way that policy-preference-by-proxy does not. For the latter, we can't know in advance that in a few months' time, suspicion of some ghastly crime or tort or other legal wrong will fall on our friendly neighbors Annie or Marko, much less on ourselves, and they desperately need and fundamentally deserve not to be, umm, prejudged. We can't pretend that judges (and prosecutors and law enforcement officials in general) will have no policy preferences, as they're human. But that shouldn't be the basis of their selection; it should, at most, be a side effect of selecting their capabilities.

And lest you think this is all too speculative, consider that this issue has been a problem, and has been chewed over at length, for centuries... and for at least three centuries explicitly, since the time of Fran├žois-Marie Arouet. (Whose greatest works, one might add, would have been eligible for the Hugo had the awards then existed — at least once translated into English.) Conversely, anyone who tries to pretend that Hugo finalists and nominees don't form "precedent" — in the common-law sense, and perhaps even in the slightly perverse Blackstone/Coke received-wisdom variant on that sense — hasn't been paying attention. Or, perhaps, just wasn't at Philcon to hear booing from the audience when the winning novel was announced, as it wasn't considered sufficiently canonical by a particularly loud, yapping, rabid portion of tradition-bound fandom.

13 April 2015

Beware the Ides of April

Still in moving hell, and with lots of other deadlines.

06 April 2015

No Award

Still in the midst of moving hell for others... my turn before too long.

  • So, the Hugo ballot was announced over the weekend. I commented last year, and nothing much has changed (which is rather ironic for the literature of change). Same song, second verse; twice as loud, twice as worse.

    Well, I will say one additional thing, about the particular faction that has been most visible. It's not about "conservative thought" at all — that's merely a convenient rallying cry, a post hoc rationalization. This is, instead, about an attempt to change who is recognized as one of the "kewl kids," with all the subtle dynamics of elementary school recess, using certain overt thematic memes as a proxy. But then, I'm a Social Justice Warrior (literally — unlike virtually all of the militaristic yapping curs, I actually served in the military, and in a leadership role, and for more than a single "enlistment"), so my opinion obviously doesn't matter to those, umm, entitled few.

    Perhaps, on the internet, nobody knows if you're a dog. At award time, though, it appears that everyone knows if you're a yapping cur.

  • This item has some equal-treatment-of-women cooties, though: Thoughts by women about whether (and how) one should become a full-time writer from my more-than-mere-acquaintances Mary Robinette Kowal and Kristine Rusch.
  • Or you could just watch Orphan Black (which has exposed another award system — the Emmys — for the inside-baseball idiocy that it is).
  • And meanwhile, across the Pond, the European courts are steadily demonstrating that American hegemony in copyright is a fleeting thing indeed. I wonder what the yapping curs (one of whom is now based in Europe) think of this? Or maybe not...

02 April 2015

Counterpoint

One of today's online local papers here in the Bay Area has a wretchedly ill-programmed slide show on "20 things you miss when you move from the Bay Area." Since I'm leaving the Bay Area shortly, here's a bit of counterpoint — 20 things, plus bonus points, I hate about the Bay Area that are driving me away. Some of them are idiosyncratic, admittedly; some of them, I think, less so.

  • Traffic/driving/transportation is among the worst in the developed urban world. The BART system itself is pretty good, but it doesn't extend to where it needs to go and has suffered from years of "no more taxes!" neglect. Even when it gets extended, it still won't go where it needs to go!

    What makes it worse is that Californians are so arrogantly convinced that they're good drivers to go along with it. Umm, no: There are safety and traffic-flow reasons for the "two-second rule," you dweebs, and people can get through red lights and stop signs and drive-throughs if you pull up to one-third-carlength-or-less of the car in front of you. Then, when you finally get somewhere, you can't park legally — there isn't a legal parking space, and even if there is it will be partially blocked by an incompetent parking job or needless orange cones for some self-righteous renovation work.

  • NIMBY forever. In particular, the arrogance of those who are "natives" and who have become "old money" through ownership of real property is absolutely astounding. "Old money" need not be "big money" for this, either; just try changing the purported "charm" of a facade on Russian Hill — perhaps so that it's wheelchair-accessible — and see what happens.
  • The weather sucks. More to the point, locals' whingeing about how "cold" it gets in San Francisco is constantly annoying to anyone who has ever spent a winter damned near anywhere else (except SoCal). Combine the lack of precipitation with salt air and it's no wonder that everybody is always getting a new car.
  • Restaurant accessibility and pricing sucks. Once one gets away from a few designated neighborhoods and the downtown area, dining out (even from a taco truck... and they're a lot better in Portland) is simultaneously anti-family and anti-unplanned. And expensive. And generally bland. One can't make up for it at home easily, either — whether the (unearned) reputation for restaurants or the crappy kitchens and kitchenware availability came first is open to debate.
  • Jeans everywhere is a bit excessive... largely because jeans pockets are almost useless and one cannot run in them. I don't object to casual so much as the way it's implemented — more cowbell, more Hawaiian-print shirts (with pockets, in cotton).
  • Fast food is, as noted above, marginal at best. And particularly once one gets south of the Mission District or across the Bay, McZorgle's is ridiculously dominant. (There's nothing that anyone can do to make me defend shoestring fries under any circumstances.) Then throw in the limited hours; perhaps I was spoiled by the default 0500-0100 schedules in a college town, but...
  • Rolling up the sidewalks at 2100 — except if there's booze involved — is pretty annoying, especially when almost nothing opens until 1000 the next morning. Even local restaurants away from downtown Berzerkeley do this; I recently had an instance in which it took five tries to find a reasonably convenient, non-fast-food/chain-diner restaurant for a casual business meal within five miles of the bloody airport at 9pm on a weeknight.
  • Obsession with bad agricultural practices in the face of drought — drought which has been predictable, in at least some sense, for two decades — at the expense of taste, of preparation, of affordability. It's all organic GMO food, guys... and the subtle "our food was not handled by migrant workers" vibe does you no credit. That said, I will miss supermarket-sized-and-priced Asian food stores after I move. Many of them are cleaner, better-stocked, and much less expensive than their 'murikan-style counterparts — and all of them have friendlier, more competent, more helpful staffs (even with broken English).
  • Doughnuts are not the only worthwhile baked good, and most areas of the country have many good alternatives to Dunkin' Donuts. Forget about Krispy Kreme or local doughnut shops for the moment; go to a decent supermarket and get some of the offerings from local bakeries. Oh, I forgot: San Francisco, in particular, dosn't have decent supermarkets.
  • I will be overjoyed to get away from the stupidity of lane-splitting, especially when I may be forced to swerve inside my lane to avoid one of the numerous potholes, or bicyclists... or another lane-splitter.
  • So much stuff to do, huh? Almost no bookstores, no art, no non-alcohol-soaked-club music of dubious quality and no acoustics (presuming, that is, that one can get close enough to park if one doesn't live in walking distance, especially since public transportation essentially closes down at about the time the clubs do) — and the less said about the overt hostility of the audiences and classical music venues/organizations themselves to newcomers who aren't writing five- and six-figure donations, the better — and what there is is so overpriced that no kids will ever see it.
  • Every city in America has its own purported "special" sweet treat. Get over it's it.
  • I'll take the Cascades and the Olympics over the Sierras in a heartbeat. If nothing else, there's less litter.
  • Nobody can afford a backyard in San Francisco (or the rest of the Bay Area), so having the outdoors in it is beside the point. And if you mean "nearby that you can drive to," there's that traffic issue again.
  • Avocados are nice, but not by themselves; a nice, fresh, crisp apple is a helluva lot more portable (and healthy, if it's not one of the so-called "delicious" varieties). And you won't find such an apple at the local farmer's markets.
  • Politics? Really? San Francisco's politics are nowhere near as amusing as Chicago's. Or DC's. Or St. Louis's. Or Seattle's. They're not even overtly corrupt enough to compete...
  • Local wines that don't suck are easily available in, for example, the Pacific Northwest... and given that wine is one of the earliest packaged foods, emphasizing "local" is more than a bit arrogant and self-contradictory in itself. Then there's the mismatch between "drought" and "local wine."
  • Dungeness crabs are nice, but they're mishandled and miscooked by just about everyone after they come off the boat... and, frankly, not as good as colder-water crabs from farther up the coast.
  • Acceptance of diversity extends only to race and to social/sexual orientation. The Bay Area is relentlessly conformist in its politics and demographics, being built around mind-numbingly uniform neighborhoods. Just try being the "different" one in one of those neighborhoods unless you're with a date who fits the expected demographic! And the less said about the archly, almost violently, antiintellectual/antiscience bias of this area, the better — it's rather telling that, for a city with no workshop space available to renters, everything celebrated as culture requires a workshop and fulltime-job orientation.
  • The bike lanes everywhere were designed for clowns on bicycles... and are not kept clear enough to be used by bicyclists who are moving at speed, so they're forced out into traffic to everyone's peril and annoyance. This is a particular problem outside of San Francisco and Palo Alto proper.
  • Fog with no rain, no snow, no rainbows, no mountain sunrises or sunsets... and no street layout or signage or driving skills accommodating the realities of the fog.

And a few more that don't correspond to that slide show:

  • The libraries and museums suck on their good days. When they're open, that is. And when there's any parking near them, because none of them are convenient to public transportation.
  • Bookstore availability is almost zero, except if you think a B&N with even-less-diverse-than-normal stock is a "bookstore."
  • Pricing — largely driven by the arrogance of real-estate investment and "my family was here first" inheritance — is utterly insane. And this is a relatively new big-city area that is (or at least should) be better laid out for earthquake tolerance... which would also keep prices down.
  • One-party dominance drives local politics to the right, with the narrow exceptions of a subset of environmental policy and a subset of social-grouping tolerance. Need proof? Even local malls will be closed all day this coming Sunday for Easter... it wasn't that severe even in Bible-belt Oklahoma City in the mid-1980s. If one removes the label and name from elected local officials and looks just at their voting behavior, every single one who is prominent is center to center-right; there are some voices elsewhere, but they're so mired in hyperlocal "constituent services" (and corruption) that they have no real power. And in that way, it's just like Chicago and DC, which have similarly unmerited reputations for being "liberal."
  • Beer and pizza. There's one word that uniformly describes them: Weak. Even national-chain pizza is weaker out here!
  • Cured meats. When decent — not great, let alone "artisanal" — sausages cost more then sirloin steak per pound, something is seriously wrong. And the less said about what passes for "bacon" and "ham" around here, the better.

I came here for work. I'm leaving in the next few months due to work. I'm not sorry... and I felt more welcome in East Central Redneckistan, despite my disdain for its local "culture" (which seldom exceeded the culture in a 6-ounce tub of commercial yogurt), because it wasn't so relentlessly "there isn't anywhere else that matters." And if you know anything about small- to mid-sized-town America, that should give you substantial pause — and remind you of the worst aspects of New York.

26 March 2015

Contenxt ⇌ Contexnt

"Past performance does not necessarily predict future results."

—United States Securities Exchange Commission

So why does the entertainment industry in general — and the publishing industries and their distributors in particular — act as if it not only necessarily does predict future results, but that it is the only way to predict future results? I suppose I could be cynical <SARCASM> (what? me cynical?) </SARCASM> and blame it on greed and deception, and in one sense I wouldn't be far off. I suppose I could also blame it on a revolt against securities law by other management memes... but then, recalling the purpose of the SEC's mandatory-disclosure model of securities regulation, we'd just be back to greed and deception.

No, the best explanation is a particular kind of magic — one closely related to counting angels on the head (or point) of a pin. Which, with its origin in Western medieval theology, is in the end all too apt...

Believe it or not, what actually set me off on this particular path was the recent announcement that Heinz and Kraft Foods intend to merge. More than anything else, this proposed merger represents a desperate attempt by existing entrenched capital to avoid the consequences of changing market characteristics by getting bigger, and therefore being able to take more advantage of economies of scale (usually by unfairly squeezing compensation offered to suppliers and its own workforce, thereby justifying increased executive compensation). As should be obvious from reading this blawg going back a number of years, I'm no fan of conglomeration or consolidation for the sake of purported advantages in efficiency, and not just on an ideological basis. There's a very specific reason for that skepticism: I have seen even less evidence that markets — especially markets in or related to the arts — will be constant (or even predictable) than I have for chorus lines of angels in my sewing kit.

Exhibit A: Sixty years ago, what music there was in popular awareness was largely instrumental, jazz/big-band (don't get me started on that corruption, we'll be here for hours) with possibly appended vocals, static-location, and passive. Thirty years ago, what music there was in popular awareness had shattered into a mixture of vocal and instrumental works in multiple purported "genres" (which, in reality, do not have the coherence demanded of a genre; they are better termed "performance and marketing styles" than anything else, and even that conceals more than it reveals), moderately mobile but on dedicated devices, and with an increasing sense of user participation (not limited to dancing!). Now... it's impossible to tell, except that the dedicated playback device is a steadily (and rapidly) decreasing means for people to "consume" music.

Exhibit B: Sixty years ago, there was still effective censorship of literary works in many markets, requiring a trip to an out-of-state bookstore for many residents to get a copy of Ullyses. Admittedly, this was no longer directly governmental censorship... but writers like Joyce and Roth and even Orwell were not kept where impressionable kids could find them without a diligent search. Thirty years ago, the raging idiocy of subject-matter censorship had moved down in age groups, primarily focusing on teen-and-younger-market works — not by encouraging parental involvement in what kids were reading, but by trying to restrict what was available for kids to read in the first place. Now... manga on every internet-connected device, not excluding tentacle porn.

Exhibit C: Sixty years ago, a diligent fiction writer publishing four pieces a year in the top periodical markets would be middle class. Thirty years ago, that same writer would be around the poverty line. Now... I'm not sure that there are as many as four top periodical markets for fiction, regardless of genre or style or even language.

I think I've made my point here: Just as past performance does not necessarily predict future results in finance, past context (content) in the arts does not necessarily predict future content (context) in the arts. It's long past time for industrial actors to stop pretending that:

  • The branding applied after the work of art is made complete has anything whatsoever to do with its success, commercially or artistically (this is a hint to, among others, publishers who try to proclaim that there is such a thing among a discernable segment of its end-users as affiliation with anything except the author... with one huge exception in romance fiction that got that way through a combination of unfair trade/commercial practices and focusing on specific aspects of the content)
  • The past bombing of an author's work under a given authorial name accurately predicts future sales of that author's works if the future works are of comparable (or better) quality and are given the same marketplace opportunity
  • There is such a thing as "the same marketplace opportunity" for distributed copies of works in the arts in the first place, let alone one with any predictability
  • That — just as in medieval protomercantilism and in medieval theocracies — the lion's share of the compensation rightly belongs to the intermediaries
  • That ketchup belongs in the same package (or accounting statement) as macaroni and cheese

OK, that last one may be a bit, umm, outside the box...

22 March 2015

No Lines Here

These are so serious-minded that I obviously haven't had enough caffeine.

  • This is why I shall no longer tinker with the machinery of death... and advocate isolating not just the courts themselves, but the machinery of justice, from electoral politics. Especially in the aftermath of Willie Horton, we should have learned this by now.
  • The "Blurred Lines" verdict continues to be both over- and underinterpreted pretty much everywhere. There's a much more interesting question that it potentially raises, though. Assuming arguendo that a jury verdict in a single matter could be treated as creating precedent, or even a default business condition — as I noted earlier, not even close — is there a missing defendant in the Gaye-family-versus-hiphopish-conglomerate group?

    Yeah. And his identity and ordinary business practices rather blow up the entire argument.

    To start with, Mr Yankovic is famous for asking permission. He does it even when he doesn't need to; he's an excrutiatingly polite humorist. But in this instance, my suspicion is that he asked permission only of the more-recent of the two potential sources, particularly given the vocal inflections he used. Under the basic property-law principle that one cannot give binding permission without actual authority to do so — and the copyright principle that every infringer is potentially liable, regardless of purported "best practices" or invalid "permissions" (getting permission only influences the remedy, not the liability) — if the "Blurred Lines" verdict has real force, Mr Yankovic is infringing the Gaye copyright. The particular elements in "Word Crimes" that are drawn from "Blurred Lines" are precisely those that a rational jury would have found improperly copy from "Got to Give It Up." Mr Yankovic is, therefore, a second-order copyright infringer.

    But parody protects Yankovic, right? Not so fast. Under the insanely self-referential, ill-considered, almost-completely-without-foundation distinction between "parody" and "satire" in US copyright law, "Word Crimes" is not a parody. Its object is not mockery of "Blurred Lines"; and since the parody theory requires a pretty close linkage between the new work and its target, one would need to find mockery of "Got to Give It Up" in "Word Crimes" for the reasoning in 2Live Crew to provide much of a shield. And this is because satire is explicitly excluded from the parody defense, since it can "stand on its own two feet." I'm afraid that this particular matter demonstrates that they're both left feet, and that one of them may be a peg leg... because the practical and literary-theoretical reality is that both parody and satire are at least as much about the reputation of the target work(s) as they are about the work(s).

    I'm not at all certain that any part of this particular controversy advances the progress in the useful arts... but that's primarily because those who are asserting superior rights are not, themselves, creators of the useful arts. They are transferees only. This is not to say that transferees should have no rights — that would lead to some really perverse incentives — but only that transferees cannot be trusted to comport their conduct with the underlying purpose. And that is a ripe subject indeed for parody and satire...

  • Speaking of objectives, ponder for a moment the intellectually dishonest disjuncture between the purpose of "museums" and the way they are actually run. And we don't even need to invoke museums' peculiar variety of the endowment effect regarding stolen property.
  • And all three of these items relate to kleptocracy by using public goods as private property: Jobs in the justice system; works created by others; and... works created by others.

17 March 2015

Blurred Yellow Lines in the Snow

Or, the Law of Unintended Consequences of Law

So, in yet another example of the simultaneous over- and under-inclusive reach of copyright law, the eminently forgettable "Blurred Lines" has been found by a jury to infringe the copyright in a Marvin Gaye song (that passed into near-oblivion before most of Mr Thicke's and Mr Williams' listeners were born). There are a lot of problems with the verdict, beginning with the fact that it's far from final — it's not even the judgment of the trial court, as motions for judgment as a matter of law (formerly called "judgment notwithstanding the verdict," and that's what it's called in the half-dozen or so most-relevant historical decisions in similar postures) aren't even due yet! These motions essentially say "Hey, Judge, you heard all the evidence, too, and you gotta agree with us that no rational juristy could have come to that verdict, so throw it out already." The fun would truly be complete if handled by the notorious R.B.G. — perhaps in an opinion of trochaic rhymes, like so much other (c)rap.

What the hell? This is a jury's verdict on music. Why bring in bad classificational memes from the philological study of poetry, memes that ignore substance in favor of form and try to force interpretation to fit the form? Next thing we know, you'll be citing arrogant, ideologically driven high-falutin' literary theory from the seventies in an effort to make us think the entire proceeding was a farce.

Indeed.

This entire case is a more-subtle-than-it-seems demonstration that process and product are two different things, especially in the arts, and that measures that are intended to encourage or regulate one of the two seldom do so predictably in the other. In short, what we have here is failure to ruminate.

Thread the First: Copyright doesn't care about process. Really. There are a few outlier matters out there that claim to look at drafts of final works in order to determine infringement; however, the real dispute in almost all of those cases is not truly a copyright dispute, but an authorship and/or compensation dispute that has been shoehorned into copyright due to copyright's procedural advantages (federal court, readily available injunctions, possible recovery of attorney's fees, and so on). The ill-founded Calliou opinion from the Second Circuit is an excellent (and somewhat less emotionally charged) example. Not once in that case do the judges (no jury, it was decided on summary judgment and not-quite-entirely reversed on appeal) express anything about artistic process that is not an inference of pure mechanics. This is the equivalent of describing Picasso's Guernica solely in terms of brush-stroke technique.

But this may be necessary, as both a matter of law and a matter of reality. Judges (and lawyers more generally) are poor judges of the arts, as Justice Holmes recognized over a century ago in Bleistein. Further, due to the peculiar worship-of-the-past nature of legal writing — after all, the best way to win a legal argument is to demonstrate that someone has said exactly the same thing before in the most-closely-analogous circumstances possible — judges and lawyers are inherently ill-suited to evaluate "influence," and particularly to determine how much "influence" is too much.

Thread the Second: The arts — especially music, especially commercial music, and extra-especially collaborative efforts in commercial music — are at least as much about process as they are about product. Indeed, in this particular instance the process of creating "Blurred Lines" is probably far more important than the song itself... if not entirely in accord with the mythology of the inspired artist creating something from nothing. I can count on the fingers of one finger the number of federal judges with substantial, long-term exposure to the entire process of creating music (even interpretive efforts like turning a nineteenth-century orchestral score into a concert performance) prior to having their minds forever warped by law school; there are three times that many among legal academics, but one is no longer involved with law teaching. I don't think things are even that generous for either the visual arts or film or substantial works of fiction (that is, more than a few very short stories in mimeographed/photocopied student "literary magazines").

But this may be necessary, as both a matter of law and a matter of reality. Just think for a moment: As an evidentiary matter, are we going to require an honest, verifiable, contemporaneous record of how every work in the arts is created, just so we can later determine influences if there's a later dispute? Worse, doesn't that assume both that all influence is conscious and that all such records are, umm, honest (e.g., Calliou, as noted above)? And, more to the point, doesn't this problem overtly — and overly — reify "the Arts are Special" into an excuse for a wide variety of commercially cynical unfair competition?

Thread the Third: Release the huskies and make some yellow lines in the snow (and my choice of that link is with multiple layers of malice aforethought). The real problem with the "Blurred Lines" jury verdict is precisely that: It is a mere jury verdict. It has no reasoning or explanation. It cannot be used to predict what will happen in the next dispute... except that defense attorneys will desperately attempt to get into a different district with a different jury pool! Dammit, there's a reason that even the most-extreme vision of the common law does not defer to jury verdicts in explaining what the law is. That, however, is precisely what almost everyone who is commenting on this unreviewed verdict is doing.

But this may be necessary, as both a matter of law and a matter of reality. It assumes that whatever juridical gloss might be put on this verdict is superior in right to the verdict itself: There's no more guarantee than there is in neoabsurdist drama, or perhaps something a bit older. Conversely, the verdict is no more (and no less) than a single experimental run performed by untrained students... which is not, of itself, sufficient to either confirm or challenge a theory, all self-interested bloviation to the contrary.

The entire dispute demonstrates that the combination of hurt feelings, commercial pie-slicing, and disparate views of what qualifies as a copy and what qualifies as an homage make for the byproduct of huskies in the snow: Blurred, yellow, ephemeral lines that will be obliterated by the following sled and completely obscured by the next snowfall.

15 March 2015

It's Only an Approximation, Anyway

I didn't celebrate Pi Day yesterday. For one thing, Jaws is not fond of the all-organic-and-natural crusts found on the pies in this area from stores with little or no chance of insect accompaniment (and my kitchen doesn't allow me to bake anyway). For another, yesterday wasn't really Pi Day unless you're an ignorant, self-centered American with no military background, or perhaps a resident of Belize; the date yesterday was either 15.03.14 or 14.03.15 everywhere else. The eldest remora had a good time trying to explain this where he is now...

  • The NYT today managed to print two articles at opposite ends of the intelligence spectrum on non-NYC-related issues.

    (note the poor journalistic-convention paragraphing?)

    On the one hand, there's a decent discussion of the not-at-all-surprisingly poor record of mutual fund managers against the market, which is an inevitable consequence of the Second Law of Thermodynamics and the exploding, insane compensation structure of the securities/investment industry. The article fails to take the next step — the irresistable pressure on fund managers (from low to high levels) to do something to justify their pay, combined with a transaction-cost structure right out of seventeenth-century mercantilism — but that step is just sitting there to be taken. The article also fails to mention that its conclusions are inevitable consequences of Szilard's work from the 1920s to the 1940s — work that is studied by every advanced chemistry undergraduate and chemical engineering student, and most physics (and some life-sciences) undergraduates.

  • And then there's another example of Frank Bruni's ignorance, this time concerning "elite" (that is, selective-admission) colleges and their alleged lack of value (n.b. Bruni himself is a graduate of the University of North Carolina in journalism...). What I find most telling about his shriek is that not one of the examples he lists is a student from engineering or the sciences, or who went into government or other public service. His examples are all entrepreneurs — even the "teacher" actually just runs a charter school, not a classroom in southeast Chicago (and nonetheless went to an undergraduate institution that — in the sciences — is considered selective). Indeed, his "money shot" measures an undergraduate institution's success level by how many of its graduates successfully managed to make a tech start-up take off in the opinion of one venture-fund Ivy-League sleazebucket manager, in a startling example of the manner of the question predetermining the answer.

    Perhaps Mr Bruni's article has some psychological value, and it's just the evidence (and his own perspective as a non-elite!) that's flawed. Perhaps he's right to implicitly neglect that "highly selective" extends all the way across the curriculum at only a dozen or so undergraduate institutions (and, I should add, that means only three, or perhaps four, of the Ivies). Neither failure supports his conclusion... and that's supposed to be a characteristic of good, or even competent, journalism.

    One wonders just how much decades-old savor of sour grapes there is in Mr Bruni's screed... or perhaps just unself-aware sympathy for outraged bacteria.

  • And then there's the issue of baronial accretion as a cause of inequality. Wait, "baronial"? Just follow the history and the money... and remember that it wasn't a popular revolt that forced John to sign That Document at Runnymede in 1215, but grumblings among the barons he relied upon to finance (and enforce) his lifestyle.
  • And if you need further proof that both the legal profession and the delegation of justice to elected officials has become unworkable, consider the violation-of-legal-ethics-rules attempts to shun an elected Orange County judge for doing his job in a different case. If the California Bar was doing its job, it would immediately open an ethics investigation of every Cal. Code Civ. Proc. § 170.6 petition filed in Orange County against Judge Goethals. Some of them might be legitimate... but "papering" as an unwritten policy is unethical, although an inevitable consequence when — at the behest of elected officials like their bloody boss — prosecutors forget that their only acceptable goal is justice and not convictions.

09 March 2015

Dead-From-Daylight-Savings-Time-Hand Control

Why, indeed.

  • Long overdue: Credit-reporting agencies begin to impose accountability in their systems. I emphasize "begin": The new program still does not include a true post-bankruptcy fresh start. It's not that the fact of a bankruptcy and discharge shouldn't appear on a credit report — it's that everything that was discharged should be expunged. This is one of the ways people are pushed into subprime lending for the rest of their lives over, say, a medical bill...
  • Perhaps the most important element of a book's cover has been the forename(s) of the author: Names that sound "unsuitably" ethnic, or of the "wrong" gender, have been poison in commercial (and even academic and professional) publishing for at least a couple of centuries. Perhaps the e-self-publishing trend will soften that, but it won't go far enough as long as book marketers, book distributors, and booksellers continue to categorize books without reading them first... as Kazuo Ishiguro appears to have found out the hard way.
  • ...which is even worse in the world of fine art, where value (monetary and otherwise) depends on attribution more than on execution. Let's be honest: Not every piece by Picasso is a masterpiece; not every piece by Picasso objectively is inherently suprior to any piece by, say, Georgia O'Keefe; and that's without getting into non-paintings!

    This connects to the preceding item in a darker, less-examined way, too. I purposely cited "Picasso" in the preceding paragraph precisely because he was not an upper-middle-class Northwest European man. John Constable as the exemplar of all that is great and good? Really? Next thing you know, somebody will note the rampant antisemitism (all Semites, not just the Jerusalem quarter of the family) in the fine-art world and we'll never actually discuss or appreciate the actual works ever again! As a specific instance, ask yourself, linguistically, where the name "Alhambra" comes from...

  • One problem with the distributive arts is that it often involves choosing sides based on the distribution, not the arts. Case in point: Film, Netflix, and cinema owners. The ultimate problem here is that both Netflix and the cinema owners are seeking efficiency in distribution... and that's not all that consistent with "art" in the first place, let alone with the actual needs of the audiences. I've ranted here before on the miserable experience of attending a film in the US with even moderate visual impairments, let alone a desire (or need) for better back support than found on a bus-stop bench for a two-hour-plus event in which we're expected to remain in our seats. Netflix has its own problems and insensitivities; but this particular fight is particularly stupid, and strongly resembles two-bit gang leaders facing off over a rubber chicken.
  • As of this morning, approximately one-third of what I learned about administrative law is wrong: The Supreme Court has overturned the Paralyzed Veterans requirement that if an agency wants to change an existing interpretation, it must engage in the full notice-and-comment procedure.

    Wow. And Perez (PDF) is 9–0 (ok, there are two concurring opinions, but still).

    It sounds hypertechnical, doesn't it? But it matters. Consider, for a moment, the analogous effect on legislation: That any change to the filibuster rules in the Senate requires a full bill passage and either signature by the President or veto override. (And ponder the corresponding change in the House: Removal of the Speaker's power to block bills from coming to the floor for a vote, and the subordinate powers of the Rules Committee, might also require the same.)

    More to the point, this represents a conflict locus between property-like and contract-like visions of government. In property law, there's grudging acknowledgement of so-called "dead-hand control" as embedded in property law — especially real-property law — but it's generally considered a bad thing, both at a theoretical level and in the courts. In contract law, however, the exact corollary of "settled expectations of the parties" is reified as the only acceptable means of commerce under written agreements. The Court has just decided that administrative dead-hand control is not necessarily a good thing, despite the settled expectations of parties affected... who probably were dealing with a captured agency in the first place.

    And that's the real crux of the problem. The rise of the administrative state in the US was a response to both lack of technical expertise and gridlock, combined with a recognition that in the 1930s things were changing too fast for some critical elements of "law" to be embedded in statutes. Eighty years later it's worse.