Internet Link Sausages Made From Bleeding Hearts

And I do not mean "bleeding-heart liberals," either...

• If it really was the tax code and not pure greed, Apple (and Google, and Amazon, and every other major corporation that has whinged about excessive taxes in the last week... or last millennium) wouldn't be pulling the same crap in other jurisdictions. Stop kidding yourselves: This has nothing whatsoever to do with the actual burden of taxation. It has everything to do with upon whom that burden falls... and the right answer is almost always "somebody else," no matter who is speaking. Indeed, that's the only reason that progressive taxation can ever be imposed — there are more voters whose relative burden is reduced by progressive, as opposed to flat-rate, taxes. These corporate interests are whinging about "double taxation" while forgetting to note that that "double" taxation is on their profits — not, as for individuals, on their revenues. The effective comparable-accounting-standard rate of taxation on a corporation seldom exceeds the US sales tax rate... which is still too much for some of these greedy bastards.

  As has been noted before by more-eminent speakers than I, taxes are the price one pays for civilization. I, for one, want more civilization... and as corporations (unlike natural persons) literally cannot exist without such silly civilized accessories as effective policing and courts and statutes and the rule of law, I find their complaints rather less than credible. My cartilaginous-ichtyhoidy heart bleeds for corporations that want all of the privileges of free speech and lobbying without paying for them; that seems almost socialist. It certainly doesn't make much economic sense; neither does it acknowledge that there's a word before "self-interest" in all non-internally-destructive conceptions of economics: "enlightened."

• I can say only one thing about the Kindle Litter/SandboxWorlds program to "monetize" fanfic: OMFG is this ever going to lead to, like, totally extreme overstatements by, like, everybody in Encino! At least they appear to be smart enough to avoid improperly claiming that the fanfic is work-for-hire — although, not having seen the actual contract, that's not certain, either. Of course, I'm not the right person to ask about this sort of thing, given that I actually know something about the business practices of some of the companies involved and appear to have conflicts of interest...
• Meanwhile, the Bibliothèque Nationale de France really does want that torch-and-pitchfork party at its gates; its most-recent arrogance is to require some rather ridiculous documentation to remove works it has stolen, and (as is usual for the French) it refuses to acknowledge that a substantial proportion of the authors in question are not native speakers of French. One might wonder whether the World Trade Organization would hear a complaint that this constituted unlawful nationalization of the intellectual property assets of non-nationals in violation of about six different treaties to which France is a signatory. Of course, one must also remember that only nations, not individual property owners, have standing before the WTO. Governments are too busy trying to collect taxes at the moment!
• I have only two words to say about exactly why things are so f*cked up regarding GITMO, drones, the CIA, etc.: Posse Comitatus. And if you can't see how that little provision — one virtually unique to the US — makes it that much harder to extricate ourselves from the mess in question, you haven't been paying attention to who is doing what (and not doing what else). Nor, for that matter, paying attention to the loophole in the law that is big enough to pilot an aircraft carrier through, and explains a helluva lot about why it was a SEAL team that visited Abbottabad a while back (not to mention provides the sole operational justification for the continued existence of the Marine Corps).

Smoked Internet Link Sausage Platter

A weekend of professional obligations began early, so I never did get around to pulling these from the smoker at the recommended time.

• Neoconservative economics descends almost entirely from the so-called "Austrian school," epitomized by Friedrich Hayek's political economy... which, as it turns out, is not the pure economics that Hayek's many neocon disciples proclaim.
• Meanwhile, New York City is vanishing — at least as a place for young artists. Indeed, I suspect that it is vanishing as a place for individualism in the arts at all, based on the continuing encroachment of "production values" achievable only through great flipping wads of ca$h. That said, I'm not sure the story is much better elsewhere.
• It's certainly not any better in traditionally-produced-and-financed-and-distributed film. If anything, the studios don't really care if anyone likes it enough to see it a second time.
• But that's a better attitude than the industrial food combine has. Now, as it happens, I eat an organic diet, leavened only with a little bit of inorganic salt. All food is "organic" — it's one of the true idiocies of marketing to proclaim a truisim as a value judgment. Food that we can actually digest is organic in that it is composed almost entirely of carbon, hydrogen, and oxygen... and almost all of the remainder is water.
• Last, and far from least, I need to vehemently disagree with The Perfesser. This time, he has gone much too far with mislabelling, and I'm afraid it's hurting his position and argument. On his blawg today, he rejects Judge Richard Posner as never having been a conservative, all the while throwing in rather snide remarks about liberals.

  Enough. Perhaps Judge Posner does not meet The Perfesser's criterea for "real" conservatism. (I think he does, having practiced before him and seen how his opinions are actually viewed by other judges, but reasonable minds may differ.) But, as I'm not myself a conservative, I'll defer... for the moment. The problem here is not the "false attribution" problem, but a different failure of privilege: Does an outsider have the privilege of labelling others? As a specific counterexample, consider the FauxNoose label of "liberal" being applied to people who, according to those of us who call ourselves "liberals," are not liberals at all. President Obama is a moderate, and not even a consistenly left-of-center moderate. Hilary Clinton is a straight-down-the-middle moderate, with the single exception — perhaps, and due to its economic basis only perhaps — healthcare. More to the point, John Newton — the individual whose opinion led to The Perfesser's screed — is not a liberal, in either the American or European sense of the term. (I'd also disagree that Solis is a "hard-core liberal" — she's much closer to Labour than to any internally coherent variety of liberalism.)

  I'm sick to death of this kind of resort throughout the American polity to the tribal magic of the Rule of Names, in which one obtains power over something by attaching a label to it — usually a label that would be relatively neutral but for the special meaning ascribed in this context. I welcome actual engagement with conservative thought; I do not welcome yet more engagement with labels, as in the days of the Evil Empire and Iron Curtain and all of those other rhetorical devices used to make enemies out of those whose opinions are different (sometimes inimically so, far more often not).

Why Do We Never Get an AnswerWhen We're Knocking at the Door?

Sometimes it really is more important to ask the question than to find "the" answer; after all, those answers are often fixed in time and avoidance.

• There is — at long last — increasing controversy about the "right way" to treat mental health issues. There's an incredibly simple and obvious answer, but it's not one that the various constituencies are going to like: There is no one right way, and any attempt to remove judgment from the art of determining (and implementing) an appropriate treatment protocol for a particular individual and his/her circumstances is doomed to being an incomplete answer. This is not just because we don't know how to separate cause from effect in neurology and psychiatry (example: it's easy to say that there are genetic linkages between schizophrenia and certain chemical imbalances in the neural cortex, but we can't say what makes those genetic predispositions express themselves with any degree of accuracy... and since that is a historical event that we can't unwind in any case, it doesn't tell us what to do about it).

  There's a more fundamental problem lurking underneath, though: The presumption that some set of social norms accurately implies the acceptable underlying individual thought- and personality processes... and that having a distinct, describable, nonnormative condition is somehow defective and must be corrected. A number of years ago one of my clients was going through a divorce proceeding (I wasn't counsel in that proceeding). In the course of the proceeding, the spouse and the spouse's lawyer kept shrieking "hypergraphia!" as some kind of evidence that my client would be an unfit parent and therefore must not be allowed custody of any kind. They neglected to put any context on their claims, though... such as noting that my client was a multiple-bestseller author whose working process involved writing summaries of research to ensure understanding of the material before writing the science-based books for which my client was known.

• Perhaps the most important thing that astronauts do during their rest periods is the ultimate human activity: create art (and explain what the hell they're doing).
• Just as there's no such thing as a free lunch, there's no such thing as a free market (or at least not the kind of free market that's at the core of first- and second-year college microeconomics).
• The Supreme Court issued a unanimous decision yesterday in a patent matter that has some important implications for digital copyright. In Bowman v. Monsanto, No. [20]11–796 (PDF), Justice Kagan wrote that:

  Bowman principally argues that exhaustion should apply here because seeds are meant to be planted. The exhaustion doctrine, he reminds us, typically prevents a patentee from controlling the use of a patented product following an authorized sale. And in planting Roundup Ready seeds, Bowman continues, he is merely using them in the normal way farmers do. Bowman thus concludes that allowing Monsanto to interfere with that use would “creat[e] an impermissible exception to the exhaustion doctrine” for patented seeds and other “self-replicating technologies.”

  But it is really Bowman who is asking for an unprecedented exception—to what he concedes is the “well settled” rule that “the exhaustion doctrine does not extend to the right to ‘make’ a new product.” Reproducing a patented article no doubt “uses” it after a fashion. But as already explained, we have always drawn the boundaries of the exhaustion doctrine to exclude that activity, so that the patentee retains an undiminished right to prohibit others from making the thing his patent protects. That is because, once again, if simple copying were a protected use, a patent would plummet in value after the first sale of the first item containing the invention. The undiluted patent monopoly, it might be said, would extend not for 20 years (as the Patent Act promises), but for only one transaction. And that would result in less incentive for innovation than Congress wanted. Hence our repeated insistence that exhaustion applies only to the particular item sold, and not to reproductions.

  Slip op. at 7–8 (citations omitted).

  This is not, as it might at first seem, inconsistent with the recent decision in Kirtsaeng. To begin with, copyright is (a) fundamentally about copies in the first place, as opposed to right to "practice" an invention, and (b) unfortunate in using "exhaustion" to mean something analogous to, but still quite different from, what "exhaustion" means in patent law. The key distinction is this: In Kirtsaeng, the only "violation" alleged was a purely commercial one: Mr Kirtsaeng's scheme only acted to (perhaps) reduce the publisher's income from its book (although given the different cost bases, etc., it's entirely possible that the overseas editions are actually more profitable to Wiley), not to increase the actual supply of the copyrighted articles. Mr Bowman, however, engaged in conduct fundamental to the patent: He increased the supply of a patented article without a license to do so.

  And, thus, the implications for e-books and other digital copyrighted works. Bowman reinforces that one may not sell (or otherwise dispose of) copies made of an electronic copy purchased/licensed by an end-user. (We'll leave aside the epistomological question of when one makes a "copy," given the technology involved.) Kirtsaeng reinforces that one may dispose of one's own lawfully purchased copy as one sees fit. The middle case, though, is troubling: Is one entitled to repurpose a lawfully purchased copy for a different use, such as translating a non-DRMed epub into a mobi file that can be read on an older Kindle? What if DRM is involved (see 17 U.S.C. ch. 12, which appears at first glance to prohibit breaking the DRM... even though each lawfully purchased device arguably breaks DRM)? What if there's patented software involved? And, most crucially, what if one's policy preferences in the answers to these question are not clearly the way the law is written — particularly if the law was written decades before any of the actual "violations" became possible, let alone widespread and socially acceptable (among a subset of the populace, anyway)?

• This blog's only feline friend the IPKat notes that making legitimate products of desired quality at a reasonable price available to consumers is a good way to fight counterfeiting, as this blawg has been proclaiming since before it was born. Indeed, the historical record back to the seventeenth century shows that every successful anticounterfeiting/antipiracy campaign has involved precisely that... and that a high proportion of the unsuccessful campaigns did not. Now combine this with a publishing industry that sets its price based not on the distinctive qualities of the content it sells, but on the packaging in which that content is provided, and I think you'll see some interesting implications for e-books — and precisely why the so-called "agency model" is per se unlawful price-fixing.
• Carrie Vaughn disses Gatsby for not engaging with reality, among other flaws. Now, I've not seen this most-recent film (and won't until it's available for me to view at my leisure at home), but I have seen prior filmings and have read the book. Frankly, I think Ms Vaughn was unduly generous... because from her description, the film actually did a better job of teasing out ill-handled themes from the first half of the book than did the book itself. The Great American Novel is the ether of literature; the primary problem is that nobody has done the literary equivalent of the Michelson-Morley experiment, and indeed never will (because publicizing the results of that experiment would not be politically or socially acceptable, if nothing else).
• Last, and far from least, there's data privacy in Europe to consider. This has a disturbing implication for current US software trends toward putting everything in the cloud instead of on individual machines. It also has interesting implications for "how the hell do we pay for the 'net anyway?" But implications are all I can offer at the moment; anyone who pretends to have answers is probably selling something. It is possibly new and improved... but it is no doubt being offered to you as a targeted advertisement.

The Downside of Branding

Just some miscellaneous notes in passing —

• Here's an irritated note to the fashion industry — especially that portion of the fashion industry that "serves" men:

  Your customers are not your bloody billboards.

  Especially not those of us who have worn a uniform. I do not want, and will not wear, your logo or brand identification on my casual clothing (or, indeed, any clothing). It's especially ridiculous for not just casual clothing, but inexpensive casual clothing, to be "forced" to show where I shop. A simple, solid mesh polo shirt should not tell everyone that I shop at Target, or at Kohl's, or wherever. You should be paying me to be your bloody billboard... and it should be strictly my choice, not mandated by everything in the store bearing somebody's external logo. The only such logo I've ever tolerated is the shiny metal "U.S." on each side of my lapel, so you can keep your bloody polo ponies. I'm not about the clothes; I'm about me.

• A long, fascinating decision from the Federal Circuit yesterday on patent eligibility has some important implications for a wide variety of issues. In CLS Bank Int'l v. Alice Corp., No. 2011–1301 (PDF), the Court of Appeals sitting en banc held — across half a dozen opinions filling 135 pages — that merely converting an existing, noncomputing process to a computer is not, without more, eligible for a US patent. In a sense, this opinion is about the disjuncture between legal words and scientific thought, as implied by Chief Judge Rader's closing "additional reflections." This is a particular problem for computer science because the relevant words were written by lawyers in the 1950s.

  The implications of CLS Bank for the Internet are many and varied. For one thing, seven, or perhaps eight, of the judges imply that merely creating an algorithm and embedding it in a computer system can never be eligible for a patent. This obviously implicates Amazon's "one click" patents; it also implicates the very data on (and off) the 'net, particularly compressed graphics (.gif), video (.mpeg), and audio (.mp3) files — all of which are or have been subject to patents, licensing transactions, and litigation over the years. Perhaps this is merely a long-overdue recognition that computers are no more fundamentally different from "ordinary" processing (and worthy of a patent) than is a specification that a banking transaction must take place in an artificially-lit space on the thirtieth floor of a skyscraper. Perhaps this is merely a long-overdue recognition that an awful lot of things that lack an "inventive concept" (see slip op. at 27) are nonetheless being patented because the examination process has historically neglected subject-matter eligibility, particularly in the face of "process" patents. Perhaps there's even more going on.

  And perhaps the entire apple cart is going to be overturned yet again in the next few weeks when the Supreme Court decides, in Myriad, whether or not isolated human genes are patentable subject matter; CLS Bank implies not. The most important implication, though, is that patentability is often a sufficient motivation to do basic research, but not a necessary one... because not all scientists, engineers, and innovators are in it solely for the money.

• So the Infernal Revenue Service has been criticized for selectively giving greater scrutiny to certain 501(c)(4) applicants. Leaving aside the "sauce-goose-gander" schadenfreude for a moment, recalling treatment of the NAACP during my lifetime, because two wrongs don't make a right, there's something subtler at work here, too. If I'm a police officer, I'm going to be skeptical of new businesses with "Pawn" in their names — not because all pawn shops are illegitimate, but because some are (and most draw other problems to them). As Klein notes, the problem is that there wasn't enough skepticism directed to the entire universe of 501(c)(4)s as much it was the misuse of discretion in choosing which 501(c)(4)s got extra attention.

A Dizzying Platter of Internet Link Sausages

Whether these induce vertigo or are induced by vertigo is for another time.

• PW has finally deigned to notice that the Borders bankruptcy is still in progress, including avoidance of payments to creditors — including publishers and individual sellers — during the period starting three months before the filing. The key point, though, is that this is going to be a horribly uneven and unfair process... exactly as contemplated in the Bankruptcy Code, which most emphatically was not intended to deal with consignment processes!
• The head of the USAF task force that's supposed to deal with sexual harassment has been relieved of duty for allegedly committing sexual harassment. I'm shocked — shocked, I say — to find a ringbanger (US Air Force Academy graduate) engaging in inappropriate harassment and/or sexual misconduct. Back in the day, I refused to enforce the "homosexual status" administrative-discharge provisions (this was before DADT): Until the USAF dealt adequately with its problems with nonconsensual heterosexual misconduct, hammering on consensual homosexual "status" would have been an egregious misuse of resources and would have prejudiced the good order and discipline of my squadrons, whether concerned with the victims or the perpetrators... or just the whole attitude. (This is not the same thing as outlawing dirty jokes in on the flightline; so-called "political correctness" wasn't/isn't a priority, either.)

  This is just another data point on the "close the bloody monasteries!" chart; the military academies no longer serve a unique purpose, and their disadvantages outweight their advantages both culturally and substantively. Hell, the "leadership lessons" of the first year at each Academy are nothing but training in harassment... by the fourth-year students! The Academies manage to graduate a fair number of outstanding officers — but not distinctly different from ROTC and/or OTS/OCS since the early-1970s reforms in those programs. Bluntly, there is no place any longer for officers produced by locking eighteen-year-olds away for four years completely away from the context of those they will be expected to lead at the end of that period.

• Politics and literature are never far apart, as St George could attest. They're particularly never far apart in the purported "canon" of literature. I wish that Ms Schulz had gone a little bit deeper into that canon, which largely exists to make "American Exceptionalism" seem self-justifying; frankly, the "Lost Generation" should have stayed lost... or, perhaps, Lost. It's sort of ironic that the one character in That Overrated Book (as a small coterie of us proclaimed it in our youthful overconfidence) who absolutely, positively must be the most "American" of all — Daisy — is being portrayed by a foreigner...
• Be careful if you're doing loud "street performance art" outside a theater — the Queen might tell you to f*** off. Which, in the end, points out perhaps more about the mistaken concepts of "publicity" in the arts (as distinct from "traditional" commerce) than one might otherwise wish: Not all publicity is good publicity. That this piece appeared in the T is just that much more delicious.
• Sometimes the best book review is a single photograph of a reader.
• If you really want to understand the entertainment industry — every segment of it — follow the money. And that's not just because "industry" is in the name, either.

Exotic Alloy of Ferrous Oxide Man

... or, in Sherlock Holmes terms, "The Case of the Egregiously Misallocated Budget."

This particular filmgoing experience was a rollercoaster ride... and not necessarily in a good way. It started badly, stalled thanks to the bad start, got a bit more comfortable, and then ran through the puke-inducing part of the ride — all before the feature. And the feature was a severe disappointment after the first third, thanks to that egregiously misallocated budget.

Things started off badly with incompetent theater management. The first "early bird" showing was supposed to be at 0900, followed by another at 0930 and a third at 1000. I showed up at 0855... and the box office was not open; neither was the entry to the concourse for the fools who bought their tickets online and swallowed the 15% "service fee." And so it rolled past 0900. And it rolled out to 0915... at which time the janitor unlocked the outer door (this is a mall location) to allow the box office personnel in, who promptly unlocked things in precisely the reverse order necessary to allow the crowd of approximately 30 people who clearly already had tickets for one of those early-bird shows to get into the theaters. Then, on top of everything else, one of the two ticket-sellers was clearly in training on the first summer blockbuster weekend. It's not her fault: It's management's.

So I ended up with a ticket to the 1000 show, and wandered around the food court (this mall's stores don't open until 1000, even on weekends) with my overpriced coffee. I then went into the theater and found that — unlike virtually every theater I've sat in in this country — the seats actually had decent back support and were clean. (Well, they bloody well should be clean for the first showing of the day, but they usually aren't.) Things were looking up! Until I looked up and saw the trailers. I've never before sat through seven trailers for tent-pole films and had each one make me less likely to see the films being advertised... thus, the puke-inducing part of the ride. These trailers were desperate; I predict that Disney is in for a disappointing summer... or I would if film quality above the level of Gigli and Batman & Robin made a credible, predictable difference to box-office receipts.

And now, it's time for Sherlock Holmes Tony Stark to make his entrance. If you're looking for spoilers, this isn't the place — this is a meta- and process-oriented review. From the meta perspective, the frame sort of works... for a different film entirely. The first third of the film actually sets up a decent situation, at which point the budget misallocation takes over. All scripts were confiscated at the Tennessee border, and were not returned for the remainder of the shoot. Hell, I don't think anyone was even looking for them: All the money that should have gone into continuity and the script went into a forty-second special effects sequence. Just pick one — virtually every special-effects sequence in the last two thirds of the film is entirely disposable, even for a comic-book-superhero film! Then, too, a little continuity would be nice, such as deciding whether Rhodes is a lieutenant colonel or a colonel, or whether the car windows are up or down. It's also entirely possible that some emergency response units would have begun converging on the big explosions beginning about twenty minutes before the end of the film; oops, there's that real world intruding again. Finally, it was a huge narrative error to try to return to the initial frame for the post-credits sequence... especially considering what was left out of that post-credits sequence. It was overobvious sketch comedy and nothing more, unlike the other corresponding sequences in Avengers-related films over the past few years.

A deeper, script-related problem was that the psychological and character setup of the first third of the film was thrown away at the Tennessee border. It had no bloody consequences; instead, we were stuck with Evil Supergenius Plot #2 Variant C, accompanied by credulousness entirely inconsistent with Tony Stark's and James Rhodes's characters and previous (that is, previous to this film) uses of technology, recordings, surveillance, etc. The internal-betrayal-in-politics variant undermined anything else that could have been done, particularly after its endgame was telegraphed so stereotypically (and so early).

And thus, the egregious budgetary misallocation. The filmmakers should have cut $2.5 million from the special effects budget, added $200k to the budget for continuity checkers, and added $2.3 million to the script budget... for a single scriptwriter, not a team or sequential polishing effort. It also would have helped if, instead of just having the idea to confront post-event wobblies (which is the closest I'm going to get to a spoiler), the script had actually done so; it's not like there's a shortage of real people who know something about this. Oh, there's my problem: I expected H'wood, the world of superhero comics, and most especially Disney to reach outside of themselves to bloody learn something, and then apply it to the bloody product.

The cast generally did what it could with the crap it was handed, but there were too many noticeable moments that were a beat off as the actors waited for the director's promised off-set event to happen. Iron Man 3 is not as bad as X-Men Origins: Wolverine... but it's not inappropriate to mention them in the same sentence, and for many of the same reasons.

Oswald Cobblepot Was Here

As Writer Beware notes (and if you're not reading Writer Beware and you're an author, you're seriously harming your own interests), Penguin's newly acquired Author Solutions unit has been sued for fraud in a class action. I won't say I have nothing but praise for the complaint — I think it's less clear on a couple of nuances than it could be — but it's so vastly better than the usual complaint in publishing that it should be studied fairly carefully. (It's also a lot better than most commercial-transaction-based class-action complaints.) Victoria includes a link to the complaint in her WB announcement.

The James complaint, of course, is not entirely complete; it can't be. For one thing, it has to limit itself to the specific causes of action for which the plaintiffs have standing. That means that, for example, this set of plaintiffs can't point out the appearance of collusion in setting authors' share of e-book royalties as a standard, essentially nonnegotiable 25% of net.

But...

Presuming the truthfulness of the complaint (and I've got plenty of documentation indicating that it is, if anything, an understatement), the James complaint does have implications for the settlement in the e-book antitrust matter that the corporate parent signed. Given the immense market share of Author Solutions (and, hence, of its corporate parent) in the egregiously misnamed "self-publishing service bureau" market, anything that Author Solutions does that restricts price competition or availability of goods — that is, implicates the Sherman or Clayton Antitrust Acts — may breach Penguin's settlement agreement with the United States. That settlement agreement requires the settling publishers to refrain from antitrust violations. The allegations in the James complaint at least raise the question, and are probably sufficiently detailed to survive a motion to dismiss even without further investigation.

No physically deformed orphans were harmed in the writing of this post.

Yes, We Are All Individuals

I'm glad Jason Collins can self-identify himself to his own identity in public. Good for him. Of course, a couple of generations ago — maybe as little as a generation ago — his skin color would have been an equally significant barrier. Then, in some parts of the country it would have been a problem last week.

The real problem is fear of difference. That could be skin color, or sexual orientation, or religion, or anti-intellectualism, or even just political opinion. I acknowledge Collins's courage in proclaiming himself Other. It pisses me off that his simple statement is considered an act of courage... and that's not his fault, because it really is an act of courage, even though it should take no more courage than stating one's name. It's our fault, collectively, more than his courage. More particularly, it's the fault of those who would divide and conquer for their own advantage — especially, but not only, religious fundamentalists of all religions (and that includes everyone, not just reprobate Yanks). It's rather ironic that the military and Congress have been more open about sexual preferences than US professional team sport... but really not that surprising.

I've got your pictureI'd like a million of you all round my cell

A fascinating case today out of the Second Circuit struggles mightily to make sense of appropriation art, and to categorize and analyze it within the framework afforded by the Copyright Act's fair use provisions in § 107. In the end, it fails, indicating that the Supreme Court was right over a century ago when it proclaimed judicial incompetence at evaluating art.

It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge. Yet if they command the interest of any public, they have a commercial value — it would be bold to say that they have not an aesthetic and educational value — and the taste of any public is not to be treated with contempt. It is an ultimate fact for the moment, whatever may be our hopes for a change.

Bleistein v. Donaldson Litho. Co., 188 U.S. 239, 251–52 (1903). Apparently the Second Circuit did not catch the irony that Bleistein is the case in which the copyrightability of photographs was confirmed... and today's case involved appropriation of photographic portraiture. (So, for that matter, does the song lyric quoted in the title of this blawg entry... if a somewhat private appropriation and transformation!)

Today's decision in Cariou v. Prince, No. [20]11–1197 (2d Cir. 25 Apr 2013) (PDF), arose from an artist (Prince) appropriating published images in a book by a photographer (Cariou) for his own purposes. This was a collage-and-partially-transform effort; one representative example, discussed and reproduced in the opinion, involved cutting out the people from Cariou's book, then creating a collage with some alterations of both the background/context and cutouts and coloring on the photographs themselves (slip op. at 6). The District Court had found that Prince's uses were not fair use under § 107. The Second Circuit... well, that's a complicated story.

First of all, one must note the dubious continued worship of its own past in the Second Circuit's opinion. Not only is Judge Leval's 1990 article cited as the theoretical foundation for fair use (instead of, say, the statute, or the Constitution, or the Supreme Court decisions reifying the legislative path to § 107, or indeed the extensive discussion in other Supreme Court decisions since Judge Leval's article was published), but it provides the foundation for the artistic judgments that lead to its decision today. This would be difficult enough for a more-clearly-human-origin work such as a set of watercolors; it is rather overconfident when dealing with photography, which has historically had significant difficulty in demonstrating sufficient originality to sustain a copyright in the first place. Imagine, for a moment, that Cariou's photographs were not carefully posed portraits, but snapshots taken with a high-end camera of scenes he just happened to come across on a tour of Jamaica; or, conversely, that rather than mere portraits they were heavily costumed, posed works involving avant gardeish lighting and themes.

This leads to the real problem with Judge Parker's majority decision: It does, and tries to do, far too much. Rather than send the matter back for reconsideration under the proper legal standard, allowing the parties to restate their evidence and explain it under the proper legal standard, for 25 out of 30 of Prince's works it reverses the trier of fact and substitutes its own factual conclusions... requiring entry of final judgment on those 25 items. Further — in the kind of overconfident prose all too common throughout copyright litigation from both the parties and the judges, and distressingly so in the Second Circuit — the rhetoric of the opinion goes much too far in apparent pursuit of establishing a definitive legal framework based upon a very limited and specialized set of facts. Of particular note, Prince (admirably, IMNSHO) did not blather forth with an extensive post hoc legal rationale for his artistic decisions during his deposition... but that actually cuts both ways, and exposes one of the principle errors in contemporary fair use analysis. The artistic intent and process matter only before a work is created under the fair-use analysis; this leads precisely to the problem presented by Dr. Seuss Enters. L.P. v. Penguin Books USA, Inc., 104 F.3d 1394 (9th Cir. 1997), in which a parody defense failed primarily because, when one reads between the lines, the panel of judges found "making fun" of a difficult and controversial judicial proceeding (the OJ trial) inappropriate — perhaps under some subconscious "there but for grace go I" rubric. Conversely, it also leaves decisions like that in Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687 (7th Cir. 2012) — a decision cited with approval in Cariou — almost inexplicable precisely because intent was not at issue in Brownmark. In Brownmark the Seventh Circuit (rightly) found that a visual comparison of two works led to an inescapable conclusion of "parody" on the pleadings without any other evidence.

Ironically, the result in Cariou is predictable from the fifth, nonstatutory fair use factor. From Prince's perspective, it would not have been administratively practicable for him to request, obtain, and presumably pay for permission to do what he did, regardless of anything else, for the forseeable market for his works. Although the Second Circuit seldom acknowledges the primacy of this fifth factor in its decisions, it has underpinned its fair-use jurisprudence in the visual arts since before the 1976 Act was passed. (Whether it should is a different question.) In this particular instance, Prince would have been required to go through a publisher for the permissions... and I'm afraid that the art-book publishing niche has a, shall we say, exaggerated idea of both its own entitlement to be the permissions gatekeeper and the market value of those permissions (while sending far too little of those proceeds on to the artists).

As usual, the real fun is going to begin when lawyers — the very ones not competent to be "final judges of the worth of pictorial illustrations" — begin to overinterpret Cariou for their own nefarious purposes. On one tentacle, you're going to see claims that Cariou means that cut-and-paste collages that do more than minimal changing of the images taken in the collage are somehow inherently fair use. On another tentacle, you're going to see claims that Cariou means that cut-and-paste jobs with a one-to-one correspondence can never be determined to be fair use on summary judgment. On yet another tentacle, you're going to see immense confusion when trying to apply Cariou outside the context of photography and of the visual arts in general, such as a verse-level medley of songs not previously recorded or of plain verses rather than song lyrics. In short, Cariou does not advance the state of the law; while it rejects one particular judicial resolution in the trial court below (rather, 25 out of 30, with 5 to be reconsidered), it does not provide a replicable framework. And that is precisely the point of the reservations in Bleistein quoted at the top of this blawg entry... and exposes that doing much with Cariou as "precedent" is going to be transformative appropriation art in itself.

Unicorn Droppings

I'm still recovering after the big opening Saturday, so this collection of link sausages is probably going to seem rather sparse.

• Over across the Pond, England is lurching its way heavily into the mid-twentieth century with the passage of a libel reform bill in the House of Lords. Procedurally, this readies the bill for an up-or-down (no amendments allowed) vote in the House of Commons tomorrow (Thursday), meaning that it could be law by tomorrow evening. It's too late for Rachel Ehrenfeld, but not too late for other authors.

  Congratulations, England! Now your libel law will be up to the US standard. In 1953. Even under the reforms, the UK equivalents of Jerry Falwell in the outhouse, civil-rights-opposing government officials (although there may be a loophole), and the John Birch Society can still munge up the UK courts with inappropriate claims to shut up their critics... and it will still be the burden of the speaker to prove truth.

• The preceding sausage implicates the continuing rationale for libel law: Control over one's privacy and reputation. Social media and silent data collection make things worse, especially when there are monopolies involved.
• Speaking of Big Media, one must always follow the money, which almost never has a clear route (n.b. this ingredient seems to be based as much on the should-have-been-long-discredited "Thursday night" myth as anything else). I will somewhat sarcastically ponder how closely the routing problem is related to the unwillingness of financial backers to share one penny more than they can fraudulently withhold have to on the talent, and in particular on the scripts...
• I suppose that beats wondering about the H'wood Mass String Theorem (that anything sounds better with a bunch of horsehair drawn across catgut in the background, and often in the foreground) and superhero movie soundtracks. It's particularly jarring to hear industrial/postindustrial orchestration in and around most preindustrial rural settings... if, that is, one is paying attention in the first place.
• If you need any more proof that PW is completely captured and cannot be relied upon to accurately discuss publishing issues, consider the latest ingenuity on "digital backlists" and what it leaves out: The underlying assumption that the publishers have the necessary rights to do any of this, let alone are actually (let alone accurately) paying the authors for those rights. It would have taken half a sentence to note that some works haven't been digitized because the publishers don't control the electronic rights... but noooooooooooooo, that would seem disloyal to the publishers that buy the ads that pay for PW.

You've Gotta Have a Sick Sense of Humor to be a LitiGator

... and sometimes it bleeds into other things in unexpected ways.

I saw an interesting summary of news on mortgage foreclosure litigation this morning that impinges on the Authors' Guild's proposed settlement of the Google Books case... and reflects even more badly on the AG's failure to pay attention. As y'all might be aware, there was a huge settlement on behalf of people harmed ("defrauded" would have been the finding had it gone to a verdict) during the mortgage crisis by improper foreclosures. People have finally started getting checks, four years and more after they were harmed, as a result of the settlement.

Which bounced.

I only wish I was making this up. The explanation being offered/inferred is that the settlement processor, Rust Consulting, didn't move the money into the account those checks were written on. Of course, that begs the question of why the money hadn't been paid directly into a segregated, for-this-purpose-only account upon its initial receipt... but the finance industry's obsession with "short-term floats" is an adequate, if repulsive, explanation. <SARCASM> I'm nonetheless completely confident that this is an isolated incident. </SARCASM>

Care to guess who the Authors' Guild and its counsel had contracted with to manage the proposed Google Books settlement? That's right, Rust Consulting... whose "opt-out list" wasn't even alphabetized in a coherent fashion. Since it was an "image" PDF, it wasn't searchable, either... and the Federal Rules of Civil Procedure, not to mention the local rules of the U.S. District Court for the Southern District of New York, require the maximum possible use of searchable PDFs. That comes closer to "disdain for absent class members' rights" than anyone should be comfortable with, since the only way to be certain that one's opt-out had been received was to find it on that list!

Just another data point for your day that doesn't involve a dysfunctional, nonproportionally-constituted legislative body being held hostage by its own rules.

Somewhat Repulsed and Sadly Familiar

And I'm not referring just to any one thing.

• Bruce Schneier offers a sound, rational, and ultimately unsatisfying response to yesterday's bombing in Boston. The contrast between Schneier's reasonability and the fundamental unreasonability of the bombings discloses the real problem with dealing with terrorist acts: They are, as Toby was told in the aftermath of the attempt to assassinate President Bartlet, "an act of madmen." It's not necessarily the objective that is insane — fundamentally, the Boston Tea Party was a casualty-free act of terrorism — it's the disjuncture among the objective, the justification, and the means chosen to express the justification and achieve the objective. In that light, the Boston Tea Party was a perfectly rational event: It was directly focused on both the objective and the justification; it did no more damage, destroyed no more property, and harmed no more persons than were minimally necessary to express that outrage within that focus; and it matched a symbolic harm with a symbolic act. We would remember things much less fondly if the colonials had, in that harbor a handful of kilometers from yesterday's bombings, blown up the ships in the harbor (killing the sleeping crew, among others) rather than sneaked aboard and dumped the cargo over the rail.

  Ultimately, we're stuck coming to terms with an act of madmen (and this looks to my somewhat-out-of-practice eye like a group effort, although nothing can be ruled out) from a rational perspective. That seldom ends satisfactorily... and never neatly, or quickly, or rationally, or replicably.

• I suppose it beats figuring out what one could have had for the cost of the Iron Pyrite Lady's funeral. I'm not saying "political figures should never receive public funerals" — only that, in Thatcher's own tradition of austerity, a little more austerity would be appropriate; £10m is an awful pile of quid for fool's gold.
• Turning to publishing for a moment, contrast Canadian universities opting out of the "official" copyright-fee-collection service with the EU courts embracing such services, despite the same objections. The most-defensible conclusion one can draw is that — as usual — the authors are getting screwed either way.
• So the Pulitzer Prize folks have followed up last year's refusal to award a prize for fiction (shades of 1974) with awarding it to this. I'm not certain which is stranger... but it does point out that prizes that purport to be about choosing the "best" works should have both juried and nonjuried stages. The Oscars, the Nebulas, and the Hugos all demonstrate what happens when there is no stage under a jury's control; the Pulitzers demonstrate what happens when all stages are under a jury's control. The short answer is that the prize awards simply do not stand up over time, and often fail immediately, as I witnessed for the 2001 Hugo for novel (which, in turn, has tainted the satisfaction others should have had from winning that same night).

Only My Dorsal Fin Above Water

I've been very busy preparing for an event next Saturday, ranging from paperwork to other stuff to cabinetry (really). There have been several important legal developments regarding publishing, but what they mean individually — and together — is going to depend a great deal on the e-book antitrust trial against Apple coming up shortly. In particular, there's been a lot of stuff happening in Europe that is giong to have some significant effects on the US publishing industry.

And, naturally, there's a lot I'd like to say that I can't. For example, I can't really comment on the Night Shade situation; I extricated my clients from Night Shade a couple of years back, but some nonpublic information that has come to me in the current fiasco is making me gnash my teeth. (That's a lot of teeth for a shark.) I suppose you can read between the lines on this one, but ultimately there's no way for the authors to win (or even come close to breaking even) under these circumstances.

That's all for the moment — perhaps more later in the week.

Dietary Interruption

Just a short post-trip platter of baby seal link sausages here... unfortunately, LA's baby seals have upset my digestive tract a bit, so I'm back on a Bay Area fish diet for a few days.

• Scott Turow pretty definitively demonstrates his, and the Authors' Guild's, permanent blind spot regarding publishing: Their layered assumptions culminating in the unstated premise that the publishing model of the mid-major and Big {insert number here} general publishers for their nondifferentiated lines is both the actual default (you've got to be kidding) and proper (no — just no). I'm going to just note one major defect for now; I could easily spend three or four thousand words and just touch the surface.

  Perhaps the most important reason for authors to welcome Kirtsaeng is a practical one relating to accounting. Turow's article presumes that publishers' accounting is accurate, honest, and timely regarding those "lower priced" foreign editions and how they relate to authors income. Leave aside for the moment that those "lower priced" foreign editions are either or both of (a) price-controlled with limited print runs, so there simply isn't a flood available for the US market (more like a trickle) and (b) specialty works way the hell outside the experience and expertise of the Authors' Guild (such as the college-level textbooks at issue in Kirtsaeng itself... whose author-publisher contracts do not resemble those for trade books at all, starting with their work-for-hire nature and going downhill from there). I don't know of an author who has published more than three books who has not personally questioned the accuracy of publisher accounting at one point or another, even if it never rose to a formal complaint. My ultimate literary ambition remains getting a royalty statement from a Big Five publisher onto the final Hugo or Nebula ballot for Best Science Fiction or Fantasy Short Story (under 7,500 words). And it's even worse with subsidiary rights than it is for straight domestic trade publication. Instead, Kirtsaeng represents an opportunity to go to unified accounting... where it's a lot harder to hide things, and it's a lot harder to claim deductions for nonexistent VAT payments that were instead made by the author's overseas agent, and so on.

  Proclaiming and acting as if one's own experiences (for example, never having been in the slush pile) are universal does little for one's credibility. I expect better from a former Assistant US Attorney and current specialist (when practicing law) in white-collar crime. Hell, I expect better from any lawyer under any circumstances. It appears that I'm expecting too much.

• Of course, I also expect courts to be places of justice and not places of confusion, obfuscation, and terror.
• Then, too, I expect journalists — even those purportedly covering publishing — to be just a little bit less credulous and a little more careful in what they're reporting as "news." The latest failure of journalistic standards at PW concerns the Julie of the Wolves fiasco, being reported with wide-eyed amazement that it's finally clear that this is about e-book royalty rates. That was obvious from the initial public statements and the initial filings in the matter... but the article betrays no sense of having looked at either of those sources even when preparing this article, let alone at the time they actually might have qualified as "news."

Not Gonna Study Studyin' No More

Before heading off to LaLaLand, so that the baby seal population around here can recover a bit:

• Bill Gates makes an important point about education when he decries measurement of everything in K–12 education. He's absolutely right, of course, but he doesn't do a good job of explaining why other than "it looks ridiculous and produces bad results." There is, instead, a fundamental scientific reason to eschew the measurement of everything that can be measured: It confuses precision with accuracy (and ignores replicability, but that's for another time). Consider one of the classic freshman physics labs for a moment: Pendulum velocity and dynamics. One does not get more-meaningful (or replicable, for that matter) results using a laser-actuated electronic stopwatch with six decimal places of readout past the decimal point than one does with a simple tenth-of-a-second or hundredth-of-a-second handheld stopwatch. The twofold solution is (a) repeated trials (that replicability problem again... and what it says about the law-school exam process, let alone the bar exam, should be obvious) and (b) recognition that the lower precision of some standards used will eliminate the meaningfulness of excessive measure precision — in particular, if one is using only the three digits of the most-commonly expressed gravitational constant on Earth at sea level (9.81ms^-2), having more than three digits of precision in the other data is not going to be meaningful.

  The fundamental flaw in Gates's piece is that he is focused on the quality of the measurements as inherently reflecting the quality of the measurers, without engaging with the abysmally low standards in place for the measurers themselves. If we don't expect much achievement of teachers, we're not going to get much achievement from their students; if we want more scholars and great thinkers coming out of our schools, we need to put a few more into them, if only as role models (and so that freshman English students don't have a better grasp of the subjunctive than do their Ed.D.-bearing teachers, to mention one problem I've encountered... more than once).

• The NYRB gushes over the prospective opening of the so-called Digital Public Library of America without ever engaging with the elephant(s) in the room: The rights of the authors whose works have been (largely involuntarily, and definitely without compensation) digitized to form the core of the collection. There is a fundamental difference between information and expression... but there's not one word in Mr Darnton's puff piece that comes even close to acknowledging it. I'm all for libraries; I'm all for information and research. I'm also all for compensating the actual creators of original expression. Sometimes there's some tension there (much less often than the publishing industry would have one believe, but that's a different issue). When there is tension, I come down on the side of the authors, despite my support of the public-library concept: Without the authors, there isn't anything — or, at least, there isn't any dissent — in the libraries in the first place.
• Which leads directly in to the Harlequin decision by Judge Baer, throwing out a particularly ill-conceived-on-these-facts lawsuit claiming that Harlequin's use of intracorporate-subsidiary transfers to limit e-rights payments breached the authors' contracts. The decision (sorry, I haven't been able to find the text without having to pierce a paywall — and the contrast with that preceding item is pretty stark and very telling) somewhat glosses over the effect of the various unique foreign-ownership regimes in question — Swiss law, in particular, is notoriously formalistic and anti-veil-piercing, and by itself may (I don't know, I only suspect) have required this result — and definitely presumes that the reader understands something that is not specifically stated in the opinion: That these are, under the law of the State of New York, contracts negotiated at arms' length between sophisticated businesses that fully understood each others' business models, and that therefore the standard for proving a material breach is quite high. I'm not criticizing Judge Baer here; I'm criticizing the law, with its assumption that there are never any unfair aspects of a business deal when the law declares that the two sides in the deal are equal. Neither am I necessarily criticizing counsel here, because the facts to establish a better complaint probably were not available to them within the statute of limitations. If there is criticism to be had, it is of Ed Meese for gutting the antitrust laws — and preventing development of law of monopsony, as opposed to monopoly — that would have been relevant here.

  The key point is this: Unlike what the General Counsel of a Big Five publisher claimed in a letter yesterday, the Harlequin decision is not precedent that demonstrates that what any publishing company does in passing rights around to its different divisions is permissible. It is not even a precedent regarding the particular corporate games at that conglomerate... because that conglomerate does not have a Swiss-control pass-through, and would be prevented from obtaining one by the particular corporate organization of its ultimate parent. And the contract terms in question, but that's for another time.

• "Johnson" makes the overwhelmingly persuasive case for replacing French with Spanish as an official international-relations language. Leaving aside the justice (and schadenfreude) of knocking French linguistic arrogance back a few pegs, there's a psychological reason, too: Most native Francophones outside of France, Switzerland, and Canada are from nations that revolted against France and colonialism in the past century; that's simply not true for Spanish.
• Last, but not least: If anyone needed further demonstration that the Hugo Award nomination process is broken and beyond repair, one just needs to look at this year's ongoing fiasco. (None of which is to criticize the nominees, who aren't part of the fiasco and are due congratulations.) I strongly suspect that the World Science Fiction Society and its hierarchy of SMOFs-without-whose-approval-nothing-can-be-done wants to be the Academy of Motion Picture Arts and Sciences; if so, it's well on its way to making the Hugos just as valid and reputable an indicator of quality as are the Oscars (exhibit A: 1979, in which the Academy managed to be objectively wrong, in both nominations and "winners" from among the nominated, in all six major-award categories). I'd pronounce a pox on all of them, but then someone would come along and claim that by using archaic language I'm somehow supporting an Austenian model for fiction (I'm not) or that by comparing it to a disease I'm suggesting that we should just cure the disease using handwaving in a hypothetical lab (I'm not) or that by referencing a sexual-misconduct-charged disease I'm suggesting a particular position in the gender/orientation "wars" (I'm not). Instead, I would impose Dorian Grey's portrait on all of them... and require its display: The hidden (and not-so-hidden) agendas of most of these combatants deserve nothing less.

  Repeat after me: The work is not the author, else Ezra Pound disappears from the canon... and so, for that matter, might Shakespeare. The battle should not be over whether LMB or RAH is more "deserving" of having the most rocketships on their respective mantels (aside: to my taste, and in most instances objectively, the majority of the winning works from both of those authors did not/do not "deserve" the corresponding Hugos), but over the most-deserving work. Fandom, too damned often, fails to look one bloody millimeter beyond "traditional"/"fen-friendly" sources — not one of those works was even nominated, and none of them was exactly obscurely published... yet all are objectively and substantially superior to the works that did win for the respective eligibility periods.