18 April 2014

The Door

XKCD, 18 Apr 2014Or, to put it another way, "Those asserting First Amendment rights should RTFM."

  • RIP Gabriel García Márquez, the most-significant Spanish-language writer since Cervantes. That is not a slam at Llosa or Allende or anyone else, but a recognition that the increasingly dodgy Nobel Literature committee got it right.
  • Here's an alternate view on the (utter lack of) diversity in the publishing hierarchy that bears some careful consideration. The main difficulty with the article is that it presumes that commercial publishing is a uniform-density power monolith — that is, that the power within the monolith is equally distributed, and that therefore pockets of even less diversity (such as the ranks of senior buyers at bookstore chains, or of heads of sales and marketing) don't have disproportionate malign influence. Quite the contrary — if one looks at the junior editorial ranks, one finds the most-diverse aspects of commercial publishing... among those with the least power, and the least prospects for gaining power.

    It's a not-too-comfortable reminder of the way things were in the military officer corps in the 1970s through early 1990s: The paucity of women, of melaninically-enhanced men or women, of non-xtians not among the enlisted, nor even among the junior officers, but among the most-senior NCOs and the field- and flag-grade officers made dealing with discrimination issues rather futile. Those in a position to take action just couldn't see it (as a group). One of the reasons that a certain famous/infamous (and largely ineffective, but that's another story) element of the National Security Council went so far off the rails in the mid-1980s is that every single person with any influence was a white xtian (and all but one protestant) male from military families and/or upper-middle-class backgrounds, and just had no capability of seeing "true difference" as anything but "hostile." Publishing in particular, and the entertainment industry in general, is in serious danger of making the same errors. Hell, it already makes the same errors on a daily basis. It's not going to get an awful lot better if the only women (or blacks or Hispanics or gays or atheists) who manage to get promoted to positions of influence are those who "got along to get along."

  • One of my authors is a very dangerous man, at least according to someone who sees danger everywhere except in his own bigotry. (A couple of decades ago, I edited one of Professor Sunstein's pieces for the Law Review... a tenured white man then at the University of Chicago writing about, among other things, Malcolm X.)
  • One of my acquaintances has had her life saved by Obamacare. This points out one of the ironies of modern Heffalump ideology: Ms Hand has been a small-business owner for decades, as a writer. Remember, small businesses are supposedly the engines of the economy, where we grow jobs and innovation and ideas (and Mom and apple pie and Judeo-Christian values... although if one actually reads Ms Hand's works, perhaps not so much on that last one). However, the private-insurance system — with its peculiar, and unsupported by data, presumption of lower costs and greater efficiency for "groups" and for "large companies" that masks primarily "easier accounting for and collection of premiums" — has made it increasingly difficult for innovators and job-creators to strike out on their own without taking serious, unanticipated risks entirely unrelated to their innovation and job-creation... unless they come from privilege or get rich in parasitic industries like investment banking beforehand.
  • Link3dIn will never reach its goal, if only because I will remain a holdout against its history of ill will, hidden agendas, disdain for privacy and security, and general foolishness forever.
  • I hereby adopt Professor Levitin's arbitration clause rejection as my own, and functionally embed a reference to and incorporate that term in each and every signature of mine, whether digital or manual, for every purpose.

    The problem is rather simple: The arbitration system in the United States is corrupt. There are individual arbitrators who proceed in good faith, and do actually provide service to the disputants before them. The system, however, is biased; it proceeds upon untenable assumptions regarding recording of and availability of facts; its overall selection of arbitrators makes the Cook County (Illinois) judicial system look diverse, expert, evenhanded, and accessible; and its procedural quirks make it more, not less, necessary to have counsel in a contested proceeding. And that's for the least-dysfunctional of the major systems, the AAA.

  • There's a hint of a fascinating controversy on Professor Crouch's blawg concerning who has the "right" to be considered an expert on patent law. With due respect to Mr Wegner, he has a grievously flawed understanding of "authority" exposed by substituting "medicine" for "patent law." Under his rubric, only physicians who actually see individual patients as the bulk of their practice (and who went to a top medical school — based on their undergraduate records — and had a top-level residency) have any true expertise on healthcare. We can ignore non-physician clinical psychologists, social workers, and other licensed counsellors; we can ignore nurses and respiratory therapists and occupational/physical therapists and physician's assistants and midwives and hospital administrators; more to the point, we can ignore scientists (physicians and otherwise) who engage in substantial research... and teach everybody else. <SARCASM> Maybe we should prohibit mere consumers and distributors of copyrighted material from commenting on copyright matters, and we should definitely prohibit professors of literature who haven't published works of fiction/poetry/drama in their own fields (including periods!) of expertise from comment, too. </SARCASM>
  • As a bookend for the first sausage on the platter today, consider the problem of "genre" for fiction, especially for how it is marketed as opposed to its own content. Remember, too, that many of the decisions on what "genre" a work falls into are independent of the work itself... and that "magical realism" can easily be explained as a way of making something otherwise highly similar to "urban fantasy" seem respectable to the nondiverse executive ranks in publishing and the arts.

16 April 2014

Nice Day for a Red Wedding

Shoe, 16 Apr 2014

Not much of a surprise, is it?

  • The king is dead, and good riddance. There's been a Red Wedding, now a Purple Wedding. What's next: A White Wedding?
  • From the Bureau for Ahabian Affairs, one learns that elements of the Japanese parliament want to defy an international-court-imposed whaling ban. The irony that the court ruling rejected a facially untenable claim that the whaling was for "research purposes" seems to have escaped just about everyone. This is, bluntly, another example of tradition (specifically including traditional privilege, in this instance with strong religious overtones) v. science... and you can probably guess which side of that debate I support, at least by default, even without considering that holding a feast on whale meat sort of undercuts the stated rationale that it was scientific research.
  • That sort of argument, though, is centuries old... and for some people, it was more fun in the past. As it happens, I'm not a huge fan of Cosmos, and wasn't in its prior incarnation either: Too much dumbing down and not enough math (or experimental technique). But then, even as an undergrad when the Sagan version came out my scientific background was well beyond that of the target audience. I'm even less of a fan of the particular kind of "journalism" epitomized in that article, though — the kind that applies a predetermined, outcome-determinative ideological-political framework to every difference of opinion. I know a fair number of socially conservative, "faithful" scientists who reject creationism and its variants for reasons utterly incompatible with Mr O'Hehir's assertion that such rejection comes from "liberal hysteria."
  • The Economist offers a fascinating piece on language and migration. Deutsch, natürlich; und Arabisch für mein Remora. Neither of us intends to park a two-metric-tonne trailer in your neighborhood overnight, however...
  • The IPKat notes a lament that one should not blame treaties for bad domestic IP law. It's sort of ironic, too, that we have a built-in conflict lurking in US law: Unlike the fundamental law of virtually any other nation, the US Constitution proclaims that it — an instrument of domestic law — always trumps any treaty (or, presumably, other international law). Or, at least, that's been the interpretation our Supreme Court adopted (consistent with the notes of the Constitutional Convention, which were not available at the time that line of precedent began). All of which is a roundabout poke at copyright registration, and particularly at § 411's blatant inconsistency with Art. 5 § 2 of the Berne Convention on Copyright, which — under that same line of precedent — overrules registration, because a treaty requirement overrules a mere domestic statute (but not the Constitution).

13 April 2014

Frei ≠ Kostenlos

Before too long, the Supreme Court will issue an opinion in Hobby Lobby relating to exercise of religion. Unfortunately, the decision will inevitably be wrong, due to two layers of linguistic confusion on the issue.

The first, and most obvious, is the religion/person interaction. The First Amendment allows neither the establishment of religion, nor impediments to the free exercise of religion. But what is "religion" and, more to the point, which "persons" may exercise "religion"? It seems to me that the only reasonable definitions of both "religion" and "persons" — in Hobby Lobby, a close-hold corporation's unwillingness to pay for contraception for all of its female employees, as required by the Affordable Care Act — entirely exclude Hobby Lobby's position.1 If there is one thing that the artificial person known as a corporation cannot have, it is faith in a supernatural being or philosophy. Its shareholders may do so; its officers and directors may do so; but because the corporation is even less capable of "belief" than it is of being labelled as a "woman-owned" or "racial-minority-owned" entity, this shouldn't even be an issue. In this sense, religion is special: It is so special that it can be a consideration only for natural persons and organizations made up of natural persons specifically and exclusively for religious purposes. Once the profit motive (and related taxation and regulation and everything else) comes into play — and there's no question that Hobby Lobby is a profit-making enterprise, and was conceived for profit and not for religious exercise — the corporation must, of necessity, be an agnostic.

By itself, that first layer should get the entire dispute thrown out of court, with a resounding declaration that religion is not an excuse for violating otherwise-neutral law... and especially not when it is a mere pay-the-same-as-everyone-else-does law. That, however, is not going to happen; this Court is unwilling to imply at even the barest whisper that some litigants use religion as a pretext for warping law, for personal economic advantage, indeed even for corruption. That may not be the case with the principals of Hobby Lobby themselves — I don't know them personally — but it is sure as hell the case with a lot of their supporters.

The second layer of linguistic confusion comes from the word "free." In English — and particularly in American English — we use the same word for "unrestricted" as for "not having any economic cost." Hobby Lobby's advocates desperately want "free" to mean both at the same time, because that's the foundation of their position in this particular suit: Not only should they be allowed unrestricted exercise of their religion (that is, that they should not have to support a female employee's access to contraceptives), but there should be no economic consequences to that exercise (that is, that they should not have to pay for a female employee's access to contraceptives just as every other comparable corporation not sharing their beliefs must do). German distinguishes between frei and kostenlos in a way that I wish the First Amendment did, at least on this issue. The First Amendment must mean only the former, not the latter... and the Supreme Court's previous decisions on "taxpayer standing" concerning taxpayers who — usually for religious reasons — objected to their tax dollars going to military spending supports this interpretation. Because the First Amendment uses a word that has an ordinary English meaning, too many readers try to import all possible ordinary English meanings of that word into First Amendment jurisprudence, instead of admitting that the common usage of the word has changed over time. There just weren't a lot of "buy one, get one free" sales at eighteenth-century general stores... or advertising.

The "right" decision in Hobby Lobby would note that "free exercise" does not mean "free of cost," but "free of non-safety-related restrictions"... and would stop right there after noting the Hobby Lobby itself is not made unsafe by paying for its employees — many of whom do not share the religious beliefs of its insiders — to have certain healthcare in furtherance of their own, individual rights and personal safety. The "right" decision would not even wade into the quagmire of corporation-versus-individual rights, or the nature of what the Perfesser calls "reverse veil-piercing" in this context. It would, instead, note that this is a decision relating to something that this Court has already determined is primarily a tax issue, and therefore a corporation may not properly do more than lobby for an exception; since there's no exception in the law, the corporation is stuck. Just like religiously-owned corporations with pacificism as central tenets must continue to pay taxes that support the military.

  1. I'm also going to note that the nature of the particular dispute is, itself, sophistry. Not too long ago, an entire nation founded apartheid upon specific religious guidance. Parallel guidance had a strong influence on the inhumane racial environment in the former Confederate States, too... and too often continues to do so. Indeed, definitions of what constitutes "acceptable" religious belief and behavior continue to cause trouble throughout the nation; consider the problems raised by zoning ordinances excluding Santeria churches, by labelling laws intended to prevent fraudulent labels of "kosher" and "halal" on food, by child-"marrying"-and-raping cults.

07 April 2014

Two Weeks of Spring and Winter Is Here Again???

Official HoC feed, 07 Apr 2014

Well, at least somebody thinks the political maneuvering is fun...

  • You know that a H'wood presumption is under serious attack when the hometown rag gives criticism of it even-handed consideration. This time, it's unpaid "internships" that are really entry-level jobs (and indirectly screen to ensure that applicants are middle-class-or-better, because they can afford — usually through family resources — to take the time off of paid work). This is actually a serious problem throughout the entertainment industry, ranging from sport to publishing to music to museums and art galleries. Upper management just doesn't seem to comprehend that the people who are "supposed" to be "getting rich" in the arts are the creators, not the facilitators; if the latter are successful, that should be a happy accident, not an expectation. In turn, that leads to beancounting and costcutting in rather inimical ways... and the mindset established by not paying entry-level facilitators leads to a mindset of similar treatment for entry-level creators.
  • It's not that photochemistry is inherently racist, it's that standardization in photochemistry is silently racist... which is one of the reasons that Fuji film was more respected than Kodak for, umm, certain kinds of photography outside of North America and Western Europe in the 1980s, but that's a hypertechnical and boring story that eventually goes nowhere in this age of digital image capture.
  • Professor Risch, over at Madisonian, presents his view of why Alice Corp. really is a trip into Wonderland. I must disagree, because he (and the patent bar as a whole) is myopically focusing on Patent Act § 101 as the source for patentability... and neglecting the constitutional context. A couple of decades ago, the Court held that originality is a constitution-level requirement for copyight. On the one hand, copyright is a lot closer to core First Amendment concerns than is patent law in general (although, I would argue, the particular patented material in Alice Corp. is disturbingly like "expression"!), so perhaps there's some ground for saying that the standard of originality for copyright — however low it may be — is still higher than that for patents. On the other hand, both copyright and patent obtain their constitutional authorization from the same clause... and it's an intertwined thing that really does not distinguish between the two. Then, too, the various treaties that the US has signed concerning patent have superior precedence to a "mere" Act of Congress.

    The problem in Alice Corp. is that the patent holder really wants to have it both ways: Can't copy the exact source code (clear copyright issue), and can't copy the scenes à faire elements of the actual work. The latter assertion has been roundly rejected in a copyright context; that we're fighting the fight anew in the patent context seems at minimum disingenuous. I'm not in favor of software and software-based patents at all in the first place, and Alice Corp. stands as an excellent example of why.

  • I'm going to close with a frightening implication of McCutcheon that is a necessary consequence of the position underlying its ancestor Buckley: That those who enter the political arena, and who wish to speak on political matters, do so with a pre-existing allocation of political speech available to them – not an aliquot based upon the content or merit of the speech they would put forth, but upon the size of their war chests. This implication becomes disturbingly apparent when one attempts to put names to the differing allocations: Paris Hilton's inherited wealth, under the McCutchen/Buckley framework in which speech is exactly equivalent to money (and vice versa) has a greater constitutional entitlement to political speech than does either Senator Elizabeth Warren... or Associate Justice Sonya Sotomayór. Donald Trump has a greater constitutional entitlement to political speech than would Dr. Martin Luther King, Jr. if he were alive today. More directly to the point, under the McCutcheon/Buckley framework President Obama had a substantially smaller right to political speech than did Governor Romney.

    This cannot be correct... or, at least, it cannot be correct in a democracy that is more than mere window-dressing for ancestry- and class-based stagnation. Fundamentally, this is the same thing as governance via primogeniture-based landed aristocracy; it merely substitutes "liquid capital" for "landed title." I seem to recall that this nation fought a fourteen-year-long conflict (the first seven as a guerrilla war) against our rightful aristocratic overlords to get to the point of having a First Amendment (ok, that took an additional decade thereafter) that can be twisted into this kind of reification.

    One need not go quite so far as pointing at specific individuals to be disturbed by these implications. The same reasoning applies to coherent interest groups, racial and ethnic (and even religious!) demographics, even regional aggregations. Indeed, even differing real estate values across regions might grant greater entitlement to political speech for the homeowner in San Francisco (with its insane real estate values allowing a substantial home-equity loan that can be devoted to political speech) than for the owner of an otherwise identical dwelling in Oakland... or Ukiah. The contrast with the Baker principle of "one person, one vote" could not be greater. That becomes much less surprising, however, when one realizes exactly who the appellant in Buckley was: Yes, it was indeed that Buckley, a scion of inherited wealth and privilege.

04 April 2014

Slightly Past the Sell-By Date

These sausage leavings — all based on invalid economic assumptions — are a bit ripe, so I'm clearing out the cooler before heading off to parts unknown...

  • An article at Der Spiegel gets the e-book/library "problem" horribly wrong because it assumes the publishers own the rights (trans. Der Spiegel). The assumption underlying the entire article is that the publisher's interest and the author's interest are completely and fully aligned, and that the publisher's decision is identical to that the author would/does make. Wrong, especially in the instance of academic publishers.
  • Or, for that matter, Canadian magazines that don't pay essential workers masquerading as "interns". This is a serious problem throughout the entertainment industry, ranging from "big agencies" to publishers to film to music to theatre to fine arts: The presumption that entry-level labor must, in essence pay to work instead of be paid to work.
  • Then there's the (alleged) value of various college degrees, an "analysis" with more unstated and invalid assumptions than one can conveniently count. Perhaps the most insidious one is the hidden time-value methodology behind creating a single "economic value" for careers; a second one is that the job market in even five years will be so similar to that of today that the predictions are at all meaningful (and that leaves aside the strong tendency of entrepreneurs — who, after all, don't have "jobs" as tracked by these kinds of studies — to work outside, but nonetheless inspired by, their formal degree fields). Even the math is wrong! The less said about presuming that an average (median, mode, mean of some kind) experience is actually representative without discerning the range and variance, the better. Finally for now — I could go on for quite some time — there's an unstated assumption that one's undergraduate degree is terminal. Yeah, right, says the holder of a couple of graduate degrees (one of which is in a field far removed from one of his undergraduate degrees). This piece gets a D- ... on a US grading scale, of course.

03 April 2014

Wrong When Decided. Even More Wrong Now.

Yesterday's decision on campaign finance is wrong (PDF), and wrong rather in the way that all of the decisions approving of "separate but equal" were wrong (and that is not at all an irrelevant comparison): The foundational decision — Plessy for "separate but equal" — was wrong when decided, and building further doctrine on top of that is unlikely to lead to truth or justice... even when it leads to the common law.

The foundational decision in this instance is Buckley v. Valeo, 424 U.S. 1 (1976). (In an irony that will go all too appreciated by those who are suspicious of anonymous political contributions, Buckley is one of the rare longstanding Supreme Court precedents that is per curiam — that is, "by the Court" with no justice claiming authorship.) Buckley declares by effect, if not in so many words (thanks to rather masterly obfuscation apparent throughout the opinion, which avoids confronting the fact of political corruption by characterizing everything relating to corruption as a "concern"), that expenditure of money doesn't just enable speech... it is speech in and of itself. It is not mere conduct, or expression of support, or anything else; spending money is, at its core, speech.

A constitutional amendment sufficient to overturn McCutcheon could be very simple and comprehensible:

Expenditure of money or application of other economic capital does not constitute speech under the First Amendment to this Constitution, and may be regulated in electoral and related contexts upon good cause shown.

That's not to say that there are neither loopholes nor potential for abuses in there; it might be theoretically possible, for example, to regulate campaigns out of existence under that language. Presumably, courts would eventually get around to dealing with the quality of cause shown for those regulations... but then, it took six decades to get around to dealing with the utter absence of cause in Plessy, so perhaps I'm too optimistic.

It's a difficult problem, in some senses. I am not saying that The Rich don't have a right to have input into the political process; we all do. The problem is when non-merits-based measures — such as how much money one can afford to expend on politics seeking a particular result — act to drown out the voices of those who cannot compete with those same non-merits-based measures. One need not go so far as "hate speech" and "political correctness" doctrine at their worst to recognize that a coordinated cacophany from a well-funded brass band can thoroughly drown out two violists playing Bartok in the corner of the public square. Chief Justice Roberts' opinion utterly fails to confront what speech is.

30 March 2014

Honey Badger Internet Link Sausages

... because I don't care. And I'm filled with unreasoning rage and an urge to bite things. Wait a minute — that's normal for me, isn't it?

  • There are better ways to leave work early than setting fire to your worksite and causing $450 million in damage... and that's almost certainly an underestimate, because any major reconstruction of any major weapons system always finds more things that need to be fixed (and sometimes causes them!).
  • Contrary to the breathless blithering of US-based media, there is actually an internet outside the US; that internet actually has copyright concerns that don't fall under US law, even when regarding US-originated content; and other nations are struggling to deal with the problems while refusing to follow the H'wood/Nashville party line. There really isn't a good solution, for the simple reason that the concept of a "red flag" hasn't yet been adequately explored, let alone put into enforceable terms.

    I've long felt that the "red flag" framework is the wrong one to apply to file transfers and storage. If one must reason from analogy, it seems to me that the pawn shop is a better analogy. Virtually every pawn shop contains some stolen merchandise (or, if not formally "stolen," at least pawned without full knowledge and authorization of the actual owner). The real question is not whether Bert Bailee (the pawnshop owner) is aware that a particular engagement ring in the display case is stolen; it is whether Bert knowingly operates a fencing operation as opposed to a "legitimate" pawn shop (for some value of "legitimate" given the ordinary financing fees... and Bert's typical hostility to outsiders who try to extricate his customers from those fees). At what level of fencing/stolen and unauthorized merchandise has the pawn shop become a front for a fence... or even an outright fencing operation? And must that determination be sensitive to the context of what kind of merchandise predominates among that shop's wares (or warez) — family jewelry (e-books) or home electronics (TV episodes and "socially acceptable" porn) or assault rifles (non-"socially acceptable" porn) or appliances (feature films and executable files)? I don't have answers; I do think this is a better analytic framework, with a better acceptance of legitimate-if-disreputable-and-my-social-class-doesn't-do-that operations than the binary-valued "red flag" that concerns only specific items, such as a ring with the Wayne family crest (or a shelf labelled "alt.binaries.e-books").

  • Terry Hart has recently raised two important points about the "utility of copyright" debate that feed directly back into the preceding link sausage. There has been a lot of "research" about the purported "benefits" and "costs" of filesharing that turns out to be bad research and, further, fundamentally flawed because it doesn't measure costs/benefits to the creators, but only to the commercial rightsholders... assuming without warrant that they are the same.

    Last week, Hart valiantly attempted to resolve the "purpose of copyright" argument, but I'm afraid the explanation offered doesn't do so. The IP clause is almost unique in the eighteenth-century text of the US Constitution in that it specifies a power/right, a purpose for that power/right, and a mechanism for exercising that power/right all in the same clause. As obvious counterparts, the purpose of the Free Exercise clause of the First Amendment must be inferred, while the required mechanism for establishing post roads must also be inferred. Conversely, the IP Clause (Article I, § 8, cl. 8) states its power (legislative action to implement), purpose ("To promote the Progress of Science and useful Arts"), and mechanism ("by securing for limited Times to Authors and Inventors the exclusive Right") together. That makes reflexively using interpretive/constructional methods applied to other powers/rights rather... dubious, and similar to using planar trigonometry to navigate on the surface of a sphere, in that one can reasonably find one's way on a short trip but definitely not across oceans.

  • Then there's the difficult side issue of parody/fair use/comment/transformation, as the UK's government is struggling to acknowledge (let alone resolve). C'mon, man — just adopt the First Amendment and all else follows <vbeg>. Well, not so much "follows" as "inevitably converges in a manner that parallel lines don't." The irony that semiconductor architecture — which enabled the 'net — is founded on a non-Euclidean geometry in which parallel lines do converge may be apparent only to nerds like me... which is rather the point I'm dancing around.
  • Judge Cote has granted class certification in the consumer attack on the Wormyfruit RPMA ("agency model") for e-books. That is not at all the same thing as a final judgment, although in this particular controversy there is already a parallel judgment upon which to rely for the substance. I expect the usual torrent of criticism from various quarters, ranging from those who would attack the Big Brazilian River by any means available to those who don't give a shit about anything except shareholder wealth maximization and see this litigation as an attack on that.
  • Professor Humphreys explains the difference between politicians and academics who study policy as an is/ought gap... which, in practice, all too often involves both politicians and academics in decrying a mineshaft gap.
  • As a proud Division III graduate, I applaud the NLRB recognition that Division I's so-called "student-athletes" are primarily employees and therefore eligible to unionize. The named plaintiff in the matter wanted to be a premed student... but had to drop that because required laboratory science classes would conflict with practice sessions, and practice sessions took priority: "Student-athlete" my ass (and that's at an institution that graduates an unusually high proportion of its "student-athletes"). <SARCASM> Maybe the NLRB, some time in the future, will recognize that when writing to contract, freelance authors/musicians/artists are primarily employees (and therefore eligible to unionize, and exempt from antitrust restrictions when trying to impose minimum fair contracts) when the contracts uniformly offered take too much for limited pay and restrict competition... </SARCASM> Naaah.

25 March 2014

Ketsup for Not-So-Linky Sausages

Just a couple of quick notes to catch up on the backlog as that bout with the 'flu tapers away:

This morning, the Supremes decided the (fourth or fifth iteration of) Lexmark Int'l, Inc. v. Static Control Components, Inc., No. [20]12–873 (PDF) (25 Mar 2014), yet again smacking down Lexmark's ethically unsustainable and probably unlawful tying attempts for printer cartridges. Basically, Lexmark put a chip into printer cartridges that has to be "renewed" at its factory — and its factory only — for a recycled or other aftermarket cartridge to work. This is roughly the equivalent of chipping the wheels on your car so that only genuine tires of the same brand as installed at the factory will work; not because they are superior tires, but because the car manufacturer gets more money that way by forcing you to use its brand. Static Control reverse engineered Lexmark's chip — so that the chip it sells to cartridge remanufacturers, which is not a literal copy of Lexmark's chip, produces equivalent signals so that the Lexmark printer will accept it — and thereby enables the remanufacturers to undercut Lexmark's price on printer cartridges. Substantially undercuts Lexmark's exhorbitant, consumer-gouging rent. Naturally, Lexmark sued Static Control. Previous decisions have rejected Lexmark's attempts to claim that the Static Control chip infringed patents, and/or Lexmark's copyrights. This decision, however, concerns whether Static Control could file a counterclaim against Lexmark for false advertising and similar violations of the Lanham Act arising from Lexmark's assertions that only Lexmark-branded cartridges would "work properly" (to quote a press release from a number of years ago), among other claims (both explicit and implicit).

The Supremes unanimously (Justice Kegan recused) ruled that Static Control did state a claim against Lexmark for false advertising and unfair competition under the Lanham Act. But this is all computer geekery, isn't it? It doesn't matter to authors and musicians and filmmakers, does it? Not so fast: Lexmark's system is merely DRM-embedded-in-a-useful-object. Indeed, one of the previous decisions rejected Lexmark's claim that its chip qualified as pure DRM and that Static Control therefore didn't just infringe Lexmark's copyright, but unlawfully defeated a DRM system protected by the misbegotten chapter 12 of the Copyright Act! It's one thing entirely for a DRM system to be hardware-agnostic — that is, so long as there's a lawfully acquired copy and lawfully operating decoder, it doesn't matter whether one is using a Samsung or an Apple or an ASUS tablet to read an e-book, listen to a music file, or watch a movie. So far, so good. That, however, is not what Apple in particular (and Amazon too, but less obviously) really wants. Apple wants brand lock-in; that's one reason that the Windows version of iTunes is so bug-infested (even if Apple's intentions were pure as the driven snow — they're not, but it's beside the point — there would be a substantial subconscious barrier to making things work on devices that Apple does not itself sell), especially regarding e-books. Seeing if Static Control actually succeeds with its claim against Lexmark on remand will be very interesting indeed...

But not quite as much fun as watching certain "archivists" (you know who you are) forced to eat their words by the Ninth Circuit. There's a meme going around among the "information wants to be free" folk who masquerade as "protectors/preservers of culture" — the ones who scan whole issues of magazines and claim that's fair use if there was any copyright protection anyway — that "copyrights on magazines never extend to freelancers' content, so if the freelancer doesn't register each story individually we can eat the carrion of their rights." Not so fast. In Alaska Stock, LLC v. Houghton Mifflin Harcourt Ltd., No. [20]10–36010 (PDF) (9th Cir. 18 Mar 2014), the Ninth Circuit seriously undercut that argument. Alaska Stock concerned not periodicals, but group registration of photographs. This case turnes on whether the group registration covered the individual freelance photographs, or just the group catalog as a whole. Following the regulations of the Copyright Office in effect at the time of the registration (and on advice from the Copyright Office), Alaska Stock had taken temporary ownership of the copyrights in the photographs for the sole purpose of registering them, then returned ownership of the copyrights to the various freelancers. The Ninth Circuit held that this satisfied the registration requirements as to the individual photos; the critical fact was that the registrant was the owner at the time of registration, consistent with the stated requirements for registration.

Those with only moderately long memories (and any real knowledge of publishing practices prior to 1978) should recognize this as being virtually identical to the way that periodicals used to work. Under the 1909 Act, copyright was "indivisible" — the entire copyright had to be owned to exploit any part of it; any restrictions on use were purely matters of contract, and not of copyright ownership. The 1976 Act (effective in 1978) allowed copyright to be divided, so that individual rights and privileges could simultaneously be owned by multiple parties. The key point is that periodical publication under the 1909 Act required ownership, however temporarily, of the copyright in each freelancer's contribution appearing in that periodical. That's the source of the language concerning "return of copyright 90 days after publication" found in so many periodical contracts from the 1930s on; that 90-day period matches up with the then-paramount requirement for prompt registration or forfeiture of the copyright. Indeed, if you look at reprint anthologies of material from the Pulp Era, you'll see nary an original copyright to Isaac Asimov or whomever; you'll see original copyrights credited to Street & Smith Publications... because Street & Smith owned the copyright at the time of registration.

Unfortunately, this still leaves a very tangled mess behind. Since Alaska Stock is (at least on its surface) dealing only with post-1964 photographs, it does not delve into who had the right to renew those original group registrations... or whether a renewal of the group registration by Alaska Stock would count for the freelancers, or even whether renewal would require ownership of the copyright (the better, but not compelling, view is that ownership is not required for renewal, because who may renew is specified in a different section of the 1909 Act and does not refer to ownership at all). Second, there remains the Morris conundrum (259 F.3d 65 (2d Cir. 2001), 283 F.3d 502 (2d Cir. 2002)), IMNSHO wrongly decided: That because freelancers under the 1976 Act need not transfer their copyrights to the publishers, the publisher's registration certificate for a periodical does not cover the freelance contributions. The Copyright Office agrees with Morris, but then it's to the financial advantage of the Copyright Office to do so: It would obtain registration fees (which greatly exceed the actual processing costs associated with registration) several times for each issue under the Morris rationale, one for each issue plus one for each freelancer's contribution. The rationale of Morris was seriously undercut by Muchnick in any event, albeit not explicitly rejected. Nonetheless, Alaska Stock does seriously undercut the "vulture archivist" argument that freelance contributions to pulp-era periodicals failed of initial registration.

20 March 2014

Yes, I Washed My Hands

... but since I have the 'flu (or at least a stomach virus), these internet link sausages may still upset your intellectual digestive system. Surely you've heard of an "internet virus"? It might be contagious.

  • Just as there is no single publishing industry, there is no single music industry, as demonstrated by Japan. Anyone who prescribes a universal success formula without taking the fragmentation into account is, well, Kevin Trudeau (but without the prison time... yet).
  • ... and may preview a much broader problem with the arts in general. The subtext here (sadly unengaged with by Dr Hadley) is that different forms of art are, well, fundamentally different, and cannot be judged by the same standards. The hard part is drawing lines between them; how much "different" are bluegrass, country, country & western, and Americana folk, for example? All one can say, really, is "more different than the Nashville commercial establishment would like to admit, and less different than mandated by Library of Congress cataloging procedures."
  • And then there's the ne plus ultra of "don't conflate the artist with his/her art": Not Leni Reifenstahl, not Roman Polanski, but Paul de Man (whose "critical" and "theoretical" works are better understood as performance art).
  • The problem with our general consideration of lab-engineered genetic modification of crops is not actual safety reviews; arguably, we don't do enough of them, which would be an adequate explanation for excrutiatingly slow official approval. The problem is that we don't treat different methodologies equally, despite no evidence at all that selective breeding is safer — or less likely to create unintended side effects (although I'm also considering the source) — than conscious gene insertion. There's a stench of antiintellectualism in there (Farmer John is no less and no more likely to be fully successful than is PhD Jane, but gets a lot less criticism)... but that's not the only problem: Just look at health statistics for "breed standard" German Shepherds.
  • Which leads to different questions concerning diversity. Diversity is more than just demographic changes over relatively large areas; it requires actual frequent contact. The Bay Area is a horrific example. If one considers Oakland's population of African descent side-by-side with San Jose's population of Hispanic descent and the Peninsula's population of Asian descent, everything looks very diverse... but unemployed residents of East Oakland don't do their grocery shopping in Daly City. That's apparent every time I skateboard down the hill to the local mall (and farmer's market), where one can find lots of white skins, brown skins, and yellow skins... but fewer black skins than even the most-local demographics suggest. And it's not just about race, either: The word "ghetto" comes to us from a religious community exclusion.

17 March 2014

No Green Beer Here

Beer shall contain water, barley (malted or otherwise), and hops — not green food coloring of dubious origin. Five centuries of German law says so, and to hell with you postmodern whippersnappers!

  • Here's a cranky author I can support (even if his books aren't particularly to my taste): Down With (Urban) Genrefication in Bookstores! Keep in mind that genre selection is almost always done by people who haven't read the book(s) in question: sales-and-marketing dorks, corporate-chain buyers, etc. Those stores where the staff has read all of the stuff — or even a significant portion of the stuff — tend to be specialist stores with a wide selection inside one or two accepted categories, a smattering of several other allied categories, and almost nothing else... and it's to everyone's disadvantage. Is The Sparrow "science fiction," "religious fiction," or "literary fiction"? Does the Pern series belong with "high fantasy" or "postapocalyptic science fiction"? And the less said about Don Quixote and the problems created by authors who don't confine themselves to specific categories the better.

    Alphabetical by author name, with hypertext-like tags to multiauthor series, is a far better option; that will shelve (as Ursula K. Le Guin put it several decades ago) Philip K. Dick where he belongs — right near Charles Dickens. And, frankly, the plot twists in a Dick novel are often more believable than those in Dickens...

  • Over at The Economist, "Prospero" offers a profoundly wrongheaded defense of studying foreign languages that fails to acknowledge the single most-important reason to do so: Temporal compression. The languages that are hot now are not those that will be hot in a decade (when current college graduates are in their early 30s), let alone in three (when current college graduates are senior management and most need to understand the cultures they're actually dealing with). In the 1970s, everyone was predicting Japanese (and maybe "Chinese") as the most-important language of future commerce; nobody cared about Spanish, and nobody had even bloody heard of Farsi or Arabic, as commercial powerhouses. Then, too, it's just a lot easier to pick up a language above the newspaper level if one starts studying it earlier.

    This is a classic example of economic GIGO. The data in the various studies all assume not just predictability of use and trainability in the future, but that the present market accurately discounts future value... when nobody can know what future value looks like. Better, instead, to concern oneself with the divide between "learn for now" and "learn for the future" — a division that also goes a long way toward explaining why those pesky, unproductive literature, history, and art history degrees (and classes) continue to matter as much as the latest web-wizardry in a variant that will be obsolete in three years. The model of "college as extended job training so Company X doesn't have to do that training" works only if Company X has a three-year-or-shorter horizon... and all of its obsolete workers can be easily fired and sent back for more training elsewhere, at someone else's expense.

  • A couple of millenia ago, Sun Tzu wrote (broadly paraphrased) that the best, and indeed probably the only, way to win a conflict is to destroy not the opponent's population or resources or military, but his will to fight. Maybe — just maybe — that has something to do with the preceding link sausage on this platter... or with YouTube. It's a lot easier to influence behavior if one is speaking the same language... or has the genius of Harold Lloyd or Buster Keaton and uses no words at all.
  • I was entirely unsurprised by this California driver moment — not because I've ever seen the charming Ms Brennan drive, but because the fifteen-klick span between us is filled with dragons drivers who are not paying attention...
  • From the law-and-justice-nerd point of view, the problem of disagreement on constitutional limits is one of the more fascinating — and frustrating — problems raised by separation of powers. Then, the very existence of this problem points out, none too subtly, the problem with unified powers (and particularly as implied by the "executive supremacy" theory): That opposing views will not get aired, except by nongovernmental parties. Had that been the case, there would not have been a civil rights movement in this nation... among other things.
  • The IPKat notes strange goings-on regarding photography — in France. What a surprise: The nation that imposed life-plus-70 on everyone, through a multistep manipulation of the Treaty of Rome's cross-border-within-Europe enforceability clause, is also overextending itself otherwise. Soon the French Dictionary Police will get cross-border enforcement powers in Luxembourg, and then in Quebec... Just kidding. I hope.