06 December 2016

It's the Economics, Stupid?

Here's an interesting bit of cultural criticism from The Economist's arts column that — either ignorantly or ironically — completely ignores the two neoclassical-economics pink elephants dancing in the room.

Why do executives and viewers continue to fall into the trap of never-ending narratives?

The obvious reason is money, and to ignore the business side of this creative industry would be naive. It is likely that some die-hard Gilmore Girls fans subscribed to Netflix simply to catch up on the lives of Rory, Emily and Lorelai (pictured). Fantastic Beasts and Where to Find Them, the first of five Harry Potter spin-offs, took $75m at the American box office and £15.3m in Britain in its opening weekend. Star Wars: The Force Awakens (2015) has grossed more than $2bn worldwide. The DC and Marvel universes continue to spawn films regardless of how poorly conceived they are, simply because they make a profit. After all, Batman v Superman (2016) was dubbed “the most incoherent blockbuster in years” and still enjoyed the eighth-biggest opening weekend of all time.

Thanks to this flow of cash and viewers, networks seem unable to quit while they’re ahead. A fifth series of House of Cards is in the works, despite a clear decline in quality since season two and rumours that Kevin Spacey—the drama’s lynchpin—is planning to leave. Narcos, which had a natural ending with the death of Pablo Escobar, is instead continuing into a third season with a renewed focus on the Cali Cartel. There are whisperings that Game of Thrones, a show that HBO has said that it would happily keep on air forever, might get a prequel. Networks use declining viewing figures as the impetus to cancel a show, not the coming of a natural and logical conclusion.

"Is This Era One of “Peak TV” or Weak TV?" (05 Dec 2016; typography corrected). The two elephants are pretty easy to spot, though: Amortization of sunk costs and market definition.

Entertainment-industry figures are fond of whingeing about the increased costs of later seasons of serial works, pointing particularly at "outrageous" fees demanded by on-screen talent. They're quite a bit less public, however, about all of the costs foregone by these continuations, particularly since those costs are often buried in the parts of accounting statements that turn big successes into ventures that don't generate any "net profits" to be shared with "net profits" participants. It's not just the advertising/publicity/marketing, although that's far from insignificant; it's more mundane things like reuse of material and benefits for other products (e.g., all of those crossover episodes on the CW last week), infrastructure, stability of personnel (and, correspondingly, less need to invest in training those personnel for specific work), and — in the biggest grab of all — increasing use of "shares in the production" as means to maintain the loyalty of key personnel, both on-screen and off... remembering, all the while, that there won't be any net profits.

The second elephant is a bit harder to explain, at least as it's sort of hinted at in the article. One of the big fears in the entertainment industry is stated very simply: "Despite all of our experience, knowledge, research, and drunk-or-otherwise-intoxicated guesswork, we don't really know who is, or the size of, the audience for a new work." Exhibit A: Jupiter Ascending. Exhibit B: Firefly. Exhibit C: Buffy the Vampire Slayer (film or TV, take your pick). Exhibits D through ZZZZZZZ: fill in the blanks. A serial work, however, tremendously reduces that guesswork... and neoclassical economics as they have evolved today equate "uncertainty" with "risk." In a way, this makes sense, but only at the extremes: Spending $100M on a CGI-laden feature with appeal limited to half-a-dozen hard-core quantum physics nerds makes no more economic sense than does limiting the budget of a production pretty well guaranteed to outdraw the Super Bowl to $22M. The same goes for publishing: The beta statistic tells us that an $8M advance for a political memoir is stupid, but that so is a $5K advance for a wide-appeal novel (or, at least, one that would have wide appeal if not relegated to a ghetto). That is, the beta statistic is a valid decisional device only outside the bulk of the bell curve (something that business-school gurus and neoclassical economists who had actually studied stochastic processes and Markov chain analysis — instead of p-hacking — would have understood).

Then, too, there's the unstated assumption that economics is, in fact, the prime factor, with little acknowledgment of ego-feeding. <SARCASM> But no decisions are ever made in the entertainment industry that are driven by ego. Right, Mr West? Right, Mr Lucas? </SARCASM> Or, as in the instance of the article's nom de web, survival...

29 November 2016

Leftover Turkey Link Sausages

There may have been no Turkey Awards, but that doesn't mean I can't scrounge for leftover sausage makings...

  • In a fascinating bit of arrogance, some communities are advocating a tax on video streaming to make up for loss of tax revenue from cord-cutting. There are two unjustified layers of assumptions in here, both revealed in this passage:

    Public officials have argued that taxation rules need to be revised to account for changing technologies. It is unfair, some say, that people who get video through cable television are taxed while those who have shifted over to internet streaming services are not.

    The first — and most obvious — a priori assumption is that the existing administratively-convenient system is both "fair" and appropriate. A system of taxing specific consumption channels for necessities (more on that in a moment) is easy, but actually inherently unfair. Consider, for a moment, whether these cities impose a similar tax on those who rent DVDs (yes, some people still do, whether locally or by mail) or even borrow them from the library... and, more to the point, whether that "similar tax" is equivalent. No, this is instead the reification of current budgetary levels combined with general unwillingness of the public (usually instigated by heavy beneficiaries of indirect services who don't want to pay for them) to shift to an objectively-fairer system that is more difficult for the privileged to evade.

    More critically, these kinds of "taxes" — and those on telephone service, cable TV, etc. — raise First Amendment concerns, especially when revenues are not earmarked for support of First Amendment activities. That, however, is an inquiry that nobody is really willing to undertake.

  • This blawg's only feline friend the IPKat notes that the Court of Justice of the European Union has held that one may not resell a backup disk of a computer programme. In one sense, this seems a perfectly reasonable check on probable fraud: Purchase of a single copy, followed by a Fonovisa-like duplication effort. On the other, I think it also gives too much weight to claims that when one "buys" a program one is only obtaining a nontransferrable license. If the original was destroyed or damaged through no fault of the user, but the user had made an authorized backup copy, there's no good reason to prevent the user from substituting the perfectly valid backup copy in a later third-party transaction... except, that is, if one hasn't figured out that software "licensing" is a Ricardian rental scheme that is fundamentally inconsistent with freedom of information transfer (whether under American or European precepts). And the implications for the preceding link sausage are left as exercises for the student.
  • The Supreme Court issued its first signed opinion of the term before the end of November, on a criminal matter of seeming technicality that is actually much more foundational to Western notions of justice and finality. (And, frankly, to poor lawyering below.) In Bravo-Fernandez et al. v. US, No. [20]15–537 (29 Nov 2016) (PDF), the Court unanimously held that certain reversals of convictions for unrelated legal errors (that is, of procedure, not of insufficient evidence) cannot be bootstrapped into a double-jeopardy bar to reprosecution on the same charge.

    But what this really discloses is that both the advocates below and the judge below failed in their duty to properly guide the jury... through, at least as implied in this opinion, using a general-verdict form ("guilty/not guilty", charge by charge) instead of a findings-of-fact form ("did the defendants offer an unlawful bribe to X?" plus "was the bribe offered to X for the explicit purpose of influencing award of a government contract?"). This was fundamental error by both counsel and the judge, completely separate from what any of the appellate courts even bothered to review... but it is an error embedded in over three hundred years of common-law jury instructions, and longer than that in the civil law. It comes from the foundational assumption that the trier of fact is simultaneously applying law, in contrast to the scientific method. This is not to say that no "mercy" or "discretion" is to be applied to facts (there's no mercy in the Second Law of Thermodynamics!); it is to say that determining the data going into that application should not be mixed into the application itself, once one know what the significant data must consist of. That latter guidance is what the lawyers and judge — and the jury form — are supposed to provide to the lab techs (jurors). And remember, in a criminal trial the techs only get one run at the data... unlike scientific contexts which require replication (unless you're dealing with health supplements, apparently).

  • Finally, a side note on a sadly amusing issue in the entertainment world — an issue that recent family gatherings for post-election Thanksgiving meals should have put into the spotlight. The well-regarded quarterback of the Green Bay Packers has been extensively psychoanalyzed by amateurs regarding his purported "family estrangement" and how that might be affecting his play. The implication in all of these articles and soundbites is that Mr Rodgers is somehow unjustified in whatever "noncommunication" he has been engaged in. Leaving aside for the moment the dubious qualifications of those doing the "analysis" (if one may even associate that term with the drivel I've seen), nobody is considering the obvious inquiry: Maybe — just maybe — Rodgers is rightly avoiding one or more assholes. Far be it from any family member — ever, anywhere — to have expectations of being "taken care of" by successful athletes and entertainers. More darkly, far be it from any family — anywhere — to avoid including a never-shuts-up racist bigot who ruins every family gathering... a not-irrelevant hypothesis given that Mr Rodgers' significant other is mixed-race (and talented and a real threat to the purity of NeanderthalAnglo-Saxon values). And none of it is anyone else's business; it's not at all like letting one's gonads do the thinking on national security (and that miscreant is an involuntary member of my "family" — the family of commissioned line officers).

24 November 2016

No Turkey Awards for 2016

There are no Turkey Awards this year. For the first time in four decades, I'm not involved in cooking my meal (thanks to those life/health issues I noted a few months back). I have even less energy for Turkey Awards this year after one of the most astoundingly falsehood-filled election seasons in the post-war era, both Over Here and Over There... and that's actually less difficult and discouraging than the waves of incontinent bullshit in entertainment and the arts.

The platter is empty. See you here next year.

19 November 2016

Fertilizing the Rosebush

We're in for an interesting time. As an acquaintance of mine noted recently (quoted with permission, reparagraphing and ellipsis mine):

I can't quite shake off a sense of cowardice. The idea that when things get truly terrible I'll fall in line and trade self-care for selfishness.…

I don't despair, though. There is much good to do, now and over the next four years, even if one single person cannot possibly do enough. Donating money and calling Congressional representatives and protesting in the streets and subscribing to newspapers and answering calls to action all help. Making art and taking it in. Reading books and writing, too. None of those things may detract from the innate, awful, creeping cowardice, but at least they distract for a while. And then, in struggle and by sheer force of will, that cowering fear can be turned into something more meaningful. Because heroes don't set out to be heroic. They do what needs to be done.

This is precisely what democracy is supposed to do: promote nonviolent protest and working for change, and taking personal responsibility for both the actions and the consequences. It is, after all, exactly how the Founders attempted to conduct themselves prior to the First War of American Secession (from 1774 to 1783; the second one, from 1861 to 1865, was much less honorable in all respects). At least to date this time, there has not been insurrection even rising to the level of that expected after an "undeserved" loss at a college football game.

Especially, perhaps, when it is done nondisruptively — and respectfully — along with entertainment. Contrary to the bloviation I'm seeing from certain nutcase media sources, the cast of Hamilton did not insult, or even call out, the Vice President elect by stating the following after the end of the performance (and requesting that the audience refrain from booing, which was just about as successful as it would be at a Yankees game):

Vice President-elect Pence, we welcome you, and we truly thank you for joining us here at Hamilton: An American Musical. We really do. We, sir, we are the diverse America who are alarmed and anxious that your new administration will not protect us, our planet, our children, our parents, or defend us and uphold our inalienable rights, sir. But we truly hope this show has inspired you to uphold our American values and work on behalf of all of us. All of us. Again, we truly thank you truly for (sharing) this show, this wonderful American story told by a diverse group of men and women of different colors, creeds and orientations.

(typography corrected) It's far more "polite" than three Republican appointees were to Mr Pence on a related issue quite recently… Perhaps you should just allow some smooth piano music to accompany your protest; it's almost exactly as threatening (until, that is, you listen to the lyrics). And it's well-groomed white guys (ok, well-groomed allowing for the '80s hair).

It could, of course, be worse. We could continue to call centrists "liberals" just because they're not the right variety of arch-conservatives, very much as seventeenth-century Catholics denied that Calvinists were Christians... and vice versa. Or, in the present, like many Shi'a deny that Sufis are Muslim, and like even fully observant American Orthodox Jews are too secular to earn a hearing from perhaps 20% of the Knesset. We need not limit ourselves to religion, however; the echoes of the Army-McCarthy hearings, 1920s-40s Germany, and Edwardian/Georgian England in what passes for political discourse have become deafening to the point that nuance is no longer tolerated. There just isn't a lot of space between excoriating a position as "politically correct," "pinko," and "objectively fascist" — all too often, even in the positions themselves.

"Nuance" is acceptable only when subverting national politics for personal benefit. It is class-and-ancestry-selecting, for example, that "depletion allowances" are available only to owners of large tracts of real property, but not to owners or creators of intellectual property. Explaining why requires both nuance and math (not particularly complex math — just complex enough that it can't be represented in HTML very easily), and also connects back to the non-depletion-allowance-claiming authorship of Hamilton. That's just one example, but note the linguistic bias in calling land (particularly in light of how land ownership has evolved/devolved) the only kind of property that is "real."

And so I look forward to four years of minority government desperately proclaiming that it has a mandate, while simultaneously suppressing the hell out of opposing points of view. The best fertilizer for roses is ground-up bones, which sounds about right; those flowers have thorns for more than one reason.

16 November 2016

SOFIA's [Non]Choice Rejected

You may recall my outrage at the arrogance of the Bibliothèque Nationale's seizure of electronic rights for "out of print" books a while back. Earlier today, the Court of Justice of the European Union smacked down that arrogance, ruling that

43. It does not follow from the decision to refer that that [French] legislation offers a mechanism ensuring authors are actually and individually informed. Therefore, it is not inconceivable that some of the authors concerned are not, in reality, even aware of the envisaged use of their works and, therefore, that they are not able to adopt a position, one way or the other, on it. In those circumstances, a mere lack of opposition on their part cannot be regarded as the expression of their implicit consent to that use.

44. This is all the more true considering that such legislation is aimed at books which, while having been published and commercially distributed in the past, are so no longer. That particular context precludes the conclusion that it can reasonably be presumed that, without opposition on their part, every author of these ‘forgotten’ books is, however, in favour of the ‘resurrection’ of their works, in view of their commercial use in a digital format.

45. Admittedly, Directive 2001/29 does not preclude national legislation, such as that at issue in the main proceedings, from pursuing an objective such as the digital exploitation of out-of-print books in the cultural interest of consumers and of society as a whole. However, the pursuit of that objective and of that interest cannot justify a derogation not provided for by the EU legislature to the protection that authors are ensured by that directive.

* * *

52. Having regard to all of the foregoing considerations, the answer to the question is that Article 2(a) and Article 3(1) of Directive 2001/29 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, that gives an approved collecting society the right to authorise the reproduction and communication to the public in digital form of ‘out-of-print’ books, namely, books published in France before 1 January 2001 which are no longer commercially distributed by a publisher and are not currently published in print or in digital form, while allowing the authors of those books, or their successors in title, to oppose or put an end to that practice, on the conditions that that legislation lays down.

Soulier v. Ministre de la Culture et de la Communication [of France], No. C–301/15 (CJEU 16 Nov 2016).

Backtracking a bit and expanding on what the CJEU did not say, in 2012 the French legislature amended its intellectual property law to allow its designated authors-rights society, SOFIA (think of ASCAP or BMI), to authorize and accept rights payments for digital editions of out-of-print-in-France books. The mechanism was classic opt-out-with-obscurity, as so often proposed by the information-wants-to-be-free-and-everything-is-merely-information warriors. The Bibliothèque Nationale would publish a list of works proposed for unrestricted digitization on its website — without an index, without translation to the author's native tongue other than French — and, if six months later, there was no objection formally posed that included documentary proof that the objector had all rights, the work would be released for digitization. SOFIA would collect any rights fees generated on behalf of the authors, should they later make a separate claim to SOFIA (although to my admittedly imperfect knowledge, no such payments have been made to any non-EU author and virtually none outside of France).

Today's opinion basically says:

  • Your objective of making materials accessible despite commercial barriers imposed by parties other than the authors — publisher profitability, bookstore profitability, limited shelf space in bookstores and libraries, etc. — is acceptable. (¶ 45) But:
  • You cannot simultaneously take away authors' rights in doing so. (¶ 45) The authors' rights control over cultural and informational "imperatives," however important they are to the interests of the State. (¶¶ 29–34, 52)
  • You may designate a collecting society for administrative convenience, but such a society does not have authority to give permission for republication. (¶¶ 35, 48)
  • The publisher of a print edition does not inherently have the right to either approve or block a digital edition (¶¶ 47–49, 51), presumably (the Court is silent here) depending on specific contractual terms and not on assumptions embedded in general legislation.
  • You must give authors specific prior notice (¶¶ 38–39), act only upon formal approval (even if implicit) (¶¶ 35–37), and without needless formalities or artifical barriers (¶¶ 51) or requiring a non-author's acquiescence regarding this choice (id.).

Needless to say, this is a very pro-author decision. It is imperfect, as it fails to engage with the obvious problem of coauthors (for a work written by three individuals, how many must assent?), let alone who has the right to deal with a collective work (who can assent for, say, The Science Fiction Hall of Fame, Volume I, consisting of protectable works by 27 authors including the editorial matter) or a joint work published under a single authorial identity (e.g., Ellery Queen, James S.A. Corey). It will, no doubt, result in endless gnashing of teeth from those frustrated by books they "want right now" remaining out of print and not digitized, but the Court's answer to that is that the author's rights are paramount against the concerns of others (¶ 52).

What I expect to happen next, though, is another attempt to end-run around this problem. This is fundamentally the same problem as raised by the Google Books matters, if different enough in facts and law that the answers don't look all that compatible. And for some kinds of things, there's a legitimate claim of cultural priority over the resistance of authors' heirs (e.g., works that remain out of print because the authors' heirs — for whatever reason, but most-commonly religious — disagree with their content, such as those of John M. Ford). The mechanism will be important, and there's a gaping hole in the CJEU's reasoning: Voluntary membership in SOFIA might be construed as a delegation of the right to assent for this purpose, if that were part of the formal disclosures provided to an author upon joining. (Involuntary-membership circumstances such as the bumbling Copyright Clearance Center — which purportedly operates only for shorter works in periodicals anyway — seem excluded by the Court's reasoning.)

12 November 2016

No Mandate for Evil

To only slightly modify Mr Queen's objection:

Party leaders, you have failed this polity.

And that was the real problem with this election, from the top of the ticket all the way to the bottom.

There's a necessary generational shift in politics — it's a function of demographics. Each generation, however, tries too damned hard to hold onto power, refusing to relinquish it to the next one. Consider, for example, the problem with my generation — the Baby Boomers. The presidency passed to a 'boomer in 1992, and will remain in the hands of a 'boomer until at least 2020. Compare that twenty-eight-year duration to the eighteen-year-duration of the 'boom itself... and then remember that a substantial number of the power brokers among the 'boomer "generation" were born during its first half-dozen years (including both major-party presidential candidates!), so even within the generation the power brokers skew old. And that has led directly to an unwillingness — perhaps even inability — to either listen to or let go in favor of those uppity kids... many of whom are pushing fifty and have adult- or nearly-adult children of their own.

Thread One: Women's "issues" most relevant to a seventy-year-old white daughter of privilege and machine politics are not the same as those most relevant to a woman in her twenties or thirties, and therefore probably have different solutions and different priorities. There's some overlap, but not congruence. What passed for a strategy by the Jackasses pretended that there were no distinctions, and that Hillary could also "represent" immigrant communities, etc.

Thread Two: Business "issues" most relevant to a seventy-year-old slumlord/real-estate developer who inherited or was otherwise gifted substantial initial capital with no need for repayment (who has had virtually no longterm net success in anything not directly related to real estate, as reflected in the multiple bankruptcies) are not the same as those most relevant to a startup entrepreneur, regardless of that entrepreneur's business line or education or immigration status or anything else, and therefore probably have different solutions and different priorities. There's some overlap, but not congruence. What passed for a strategy by the Heffalumps pretended that there were no distinctions, and that The Donald could also "represent" high-school-educated labor being priced out of the only jobs they knew how to perform by cheaper foreign labor, etc.

Thread Three: The established "third parties" were no better. For example, the Greens pretended (having learned nothing from the Heffalumps) that an antiscience — and specifically antivaccine-friendly — "doctor" could represent views on things like defense policy and civil rights with any predictability. The Libertarians were, if anything, worse, putting forth an ignoramus on world affairs (that had already made its appearance in "debates" during primary season) for the most-important world affairs post anywhere.

The key point is that the grey-hair gatekeepers imposed their idea of gravitas... meaning members of my g-g-generation, or their close-in-age protegés. And more to the point, seldom listening to people who aren't in my g-g-generation — or to "class traitors" (like me) who are part of that g-g-generation and pleading with them to do so. (This is one of the many reasons that I will have nothing to do with the AARP. Ever.) Instead, all three threads ended up mired in factionalism. That's what the voting behavior represented. It's also the most compelling explanation for the continued state of politics below the national level: Just say "Daley" or "Madigan" or "Thompson" to anyone in Chicago with political awareness greater than that of the average snail darter (and Chicago is far from unique, just more overt).

Leaving aside for the moment whether our Constitution was imperfectly designed to denigrate factionalism (if nothing else, the Attainder Clause, Art. I § 9, should be a big hint that this was at least under consideration) — thereby making proponents of factionalism unfaithful to the designs of the founders — ask yourself a question that the parties clearly did not:

When the electorate cares more about issues than factions, but is offered only factions in the guise of identity politics, how will it behave?

Well, we just got our answer: The electorate will focus on soundbites from one or two of the issues plus the personality/reputation of the candidates, and hope for the best (or least-worst) on everything else... and split pretty much right down the middle. And anyone who claims there's a "mandate" for anything is lying just like they did about the purported "Bush mandate" in 2004. The Donald's ticket received 60.27 million votes, 47.3%, out of about 127.5 million votes cast — less than a majority, less than Hillary. (That's an argument for another time.) That's no mandate. And it's even less of a mandate as a percentage of registered voters (25.0% of 241 million), let alone population (18.6% of 324.6 million). The Donald may have won the election under our peculiar rules... but neither he nor "his" party have a "mandate".

The whole point of democracy and representative government is to not just tolerate, but embrace, dissent. (That doesn't include rioting before anything actually happens in one of the whitest major cities in America.) Unfortunately, the Heffalumps institutionally have a century-plus history of refusing to accept dissent as an essential part of governance and government, so I'm afraid we're in for a bad time. That's not to say that the Jackasses have been paragons of virtue — just that they're less evil. But when one chooses the lesser evil, it behooves one to remember that it was still a choice of evil.

09 November 2016

Surviving on the Dollar Menu

The dollar menu at McZorgle's never has tasty, nutritious menu choices. And when you force people to choose from only what is on the dollar menu, it's really difficult to predict their choices. Predicting the result — hypertension from excess salt, the occasional disease outbreak from improper handling, weight gain from poor nutrition profile — is much easier...

To put things another way, those who have skeletons in their closets need to avoid basing their electoral (or other selection... such as marketing) strategy on exposing the skeletons in the other candidates' closets. In particular, this means that gatekeepers themselves need to be not necessarily above reproach, but at least relatively clean. In this election, that goes for all four parties that made national ballots for the presidency; my own ballot1 involved choosing the least of the evils offered from among Chicken McMaggots, sleazeburgers, spraypainted-green side "salads," and similarly unappetizing choices. It also applies to the entertainment industry — if the gatekeepers for, say, "popular music" were both more competent and more honorable, both their suppliers and customers would be less restive.

Of course, the gatekeepers aren't going to blame themselves. They're not going to get out of the way and let others set the menu — they're just going to tweak things by providing a new dipping sauce for the McMaggots or adding sesame seeds to the bun of the sleazeburger. And that's because it's not in the personal, immediate, unenlightened self-interest of the individuals who act as gatekeepers to take any risk of diminishing their own personal power bases. This nation survived — in consecutive terms — Woodrow Wilson, Warren Harding, Calvin Coolidge, and Herbert Hoover. It was unpleasant (and racist, isolationist, antiimmigrant, and "pro-business" meaning "pro-fraud") but survivable. More recently, Italy survived Berlusconi. Times are a bit more dangerous now (a Trump presidency absolutely ensures we will not meet the climate-change challenge, instead of providing the 30% or so chance of doing so offered by two of his competitors), so survival will be dicier.


  1. For exit pollsters, et al.: What part of "secret ballot" did you not understand? With no even arguably liberal-and-sane candidate to choose from...

02 November 2016

The Sequel's Merits (and Procedure)

Only a few more days until I will be strapped down inside a very Bond-villainesque device and have my digestive tract flushed from both ends with barium contrast solution, as a necessary follow-up to a breadbasket of deplorables. That's what I get to do on 08 November — how about you? OK, I guess I have it easy, since out here we all vote early by mail.

Not really a sausage platter today; instead, I intend to tease a few interesting tidbits out of a copyright opinion. The Eighth Circuit — not normally a fount of copyright matters, but for the greeting-card industry centered in Kansas City — yesterday issued a decision in Warner Bros. Entm't, Inc. v. X One X Productions, et al., No. [20]15–3728 (8th Cir. 01 Nov 2016) ("AVELA II") (PDF). (IP nerds with relatively long memories for trivia may recall that this case has already generated an appellate opinion on many core issues, Warner Bros. Entm’t, Inc. v. X One X Productions, et al., 644 F.3d 584 (8th Cir. 2011) ("AVELA I").) Yesterday's decision is interesting more for what it rejects than for what it accepts... and its implications for Mickey Mouse. And Sherlock Holmes.

AVELA had, for its business model, a two-step process. First, it would restore and digitize old film publicity materials, especially posters. These had fallen into the public domain for a variety of reasons, the most common of which being that the posters (as distinct from the films) were not properly marked with copyright notices (AVELA I, 644 F.3d at 589–90) and, in any event, were frequently not timely registered or renewed (id., 644 F.3d at 590 n.2, although this understates the registration problems reflected in the record below). Neither of these is/would be a problem under the 1976 Act as amended... but they were fatal to the copyright claims in the respective publicity materials under the 1909 Act. So far, so good; doing this sort of restoration is fine under the 1909 Act (or even the 1976 Act) for materials that have fallen into the public domain. Even selling copies of the restored materials without substantial alteration would be fine — putting a reproduction of the film poster or postcard onto a coffee mug or t-shirt, for example. The second step of AVELA's process is where things got fun, however: AVELA would either further modify the publicity materials themselves, such as by adding a character's "catch phrase" or other dialogue, or would extract character images from the publicity material and completely repurpose them. AVELA II, slip op. at 2; AVELA I, 644 F.3d at 590, 602–04. This latter course of action was problematic — not because the publicity materials were themselves protected by copyright, but because the publicity materials were authorized reuses of material that was protected by copyright and therefore maintained a chain back to protected material.1 This case determined that that ownership chain was protectable under the law — both copyright and trademark.

AVELA raised several objections to the judgment eventually rendered on remand. In the order stated in AVELA II:

  • AVELA tried to evade 257 counts of statutory copyright damages at $10,000 each by claiming that the judge's imposition of those damages violated its Seventh Amendment right to a jury trial. However, AVELA didn't properly present this objection to the trial court and therefore waived it. Slip op. at 5.
  • AVELA also claimed that the copyright statutory damages imposed were disproportionate and violated its substantive due-process rights (slip op. at 5–7). The court took not much longer to trash this objection, particularly since "AVELA’s intransigence rendered calculating actual damages impossible due to missing or inaccurate records" (slip op. at 6) and that "AVELA did not cease the infringing activity at any time" during the decade-long suit (id.). There was therefore no clear error in the district court's calculation of statutory damages — which, under both the legislative history and the plain language of the Copyright Act, are intended to compensate copyright plaintiffs under these very circumstances.
  • AVELA tried to knock all trademark claims out by characterizing a hypothetical posed by counsel for Warner as a binding admission against interest. As is usual for these kinds of arguments, the court's discussion of why "not even close, bud" is the correct response to this assertion takes several pages (slip op. at 7–9), primarily by pointing out that a hypothetical of this nature isn't an admission of any kind and deserves exactly no weight under any legal theory.
  • AVELA's Dastar argument failed for a simple reason that even a judicial opinion could state concisely:

    Images of the film actors in character and signature phrases from the films are not communications, concepts, or ideas that the consumer goods embody as Dastar defines these terms. Products marketed under AVELA’s licenses employ iconic film characters’ pictures to associate the products with Warner’s films, not to copy the film itself. Accordingly, these are trademark claims, not disguised copyright claims, and Dastar does not bar them.

    That is, when what one is selling is itself a derivative work and not a copy (or edited copy, as in Dastar), one-to-one trademark-as-false-designation-of-origin claims will stand, independent of the copyright status of the "original" — especially when the "original" is, like here, itself a derivative work of something that remains in copyright.2

  • In another example of civil procedure errors below, AVELA forfeited its fair-use and functionality defenses under trademark law by not pleading them. Slip op. at 10–11. I do not know what the discovery below demonstrated, nor am I familiar with all of the potential products... but it seems to me that this was at least in the abstract AVELA's best possible line of defense, especially in light of White (9th Cir.) and TCI Cablevision (Mo., also in the 8th Circuit even if it's a state court).
  • AVELA's position on likelihood of confusion being inappropriate for summary judgment also foundered on erroneous assertions of civil procedure. It's not that the judge had the authority to weigh evidence on specific parts of the six-factor test, because he didn't; it's that the other factors were so overwhelmingly in Warner's favor, and the weighing of the six factors is a question of law committed to the judge's discretion and not a question of fact for the jury, that even if the evidence were truly equivocal on the contested factors an opposite finding by the jury wouldn't have made a difference (slip op. at 11–13, and esp. at 12 n.3).
  • AVELA's last two arguments — that the permanent injunction entered was too broad, and that the district court's grant of relief on trademark claims was inconsistent with the copyright rulings in AVELA I — also founder on civil procedure grounds. Yet again, the first one was not raised in the trial court; yet again, the second one concerned different legal structures that have some overlap but are nonetheless distinct.

So what does this mean for Mickey Mouse... and for Sherlock Holmes? One of the slippery-slope arguments presented in the 1990s when the term of copyright was extended (consistent with WTO requirements, however substantively unjustified) in the Mickey MouseSonny Bono Copyright Term Extension Act of 1998, was that Disney would just come around again — about now, in fact — and extend the term of copyright further so as to protect That Mouse's original appearance in "Steamboat Willie." AVELA II demonstrates that would be unnecessary to prevent others from repurposing the short film into trademark-infringing derivative products.3 Conversely, many of the trademarkesque visual cues for Sherlock Holmes arise from filmed productions, which remain in copyright; many of the underlying characteristics of Sherlock Holmes, however, arise from in-the-public-domain printed materials. This is going to create some interesting jockeying over the next few years, as the rest of the printed materials — and some of the filmed versions — fall into the public domain over the next decade... from multiple copyright holders.

And it's all less distressing than choosing among four deplorables for the highest office in the land. Or a barium enema.


  1. Mad Magazine 377 (Jan 1999), resizedAt this point, and at this time, I cannot resist an election reference to the two-decade-old "poster" reproduced here and ask how this court would end up dealing with this poster... keeping in mind that the 8th Circuit is stuck with the insanity of the "target of the parody" doctrine implied in 2Live Crew and ossified in the various Courts of Appeal, especially the Ninth Circuit (Air Pirates was bad law when decided and is worse law now). Perhaps Hillary seems a bit too robotic for comfort.
  2. This is also a subtle objection to the substantive-due-process problems with the "registration equals copyright" statutory regime of the 1909 Act. However, because the parties didn't raise that issue and the court didn't need to go there, it remains subtle indeed.
  3. The irony that some of the grousing about extending copyright terms strengthens the trademark claims under such circumstances seems to have escaped most copyright-term-limits activists. For that reason alone, I think AVELA II will have a rich citation future.

25 October 2016

Weekend Update

... the original one. As in, "Billboard, you ignorant slut." The suddenness — and apparent method — of Ms Pallante's removal from her role as Register of Copyright are, indeed, surprising. But the ignorant spin on whose interests are served is, I'm afraid, no surprise at all.

It’s not clear why Hayden removed Pallante, but media business lobbyists reacted with dismay and some politicians expressed concern. After Pallante resigned, Congressman Bob Goodlatte (R-Va.) and John Conyers, Jr. (D-Mich.), respectively the Chairman and Ranking Member of the House Judiciary Committee, which has responsibility for copyright issues, issued a statement that Pallante’s departure would be “a tremendous loss for the Copyright Office and for America’s creators, innovators, and users of copyrighted works.” They don’t mention Hayden, who informed members of Congress of her decision the day before the announcement, but their displeasure with her decision is implied.

Although Hayden spoke about the importance of copyright during her confirmation hearings, she is perceived to favor looser copyright laws, since she previously served as president of the American Library Association, an organization that lobbies for greater public access to creative works, sometimes as the expense of creators. The Obama Administration also has close ties to technology companies, which would like to see a Copyright Office that values fair use and other exceptions to copyright over the rights of creators and copyright owners.

The unstated assumption in this passage — which, sadly, reflects silently-assumed roles in public debate on copyright — is that the interests of the distribution industries that were well-protected by Ms Pallante and even more so by her predecessor Ms Peters (who is quoted earlier in the article as proclaiming that she is "very disturbed") actually do align with the interests of creators; that Rep. Goodlatte knows a bloody thing about the interests of individual creators, as opposed to the interests of corporate lobbyists for the content-distribution industries;... and that the interests of librarians in making things available to the public are inimical to creators. Umm, not so much.

One example of how this is untrue is the Morris fiasco, in which Ms Peters (and, later, Ms Pallante) came down on the side of distributors and reusers — and against the interests of nonemployee authors — with cramped interpretations of the scope of copyright registration and how registration of a periodical does (or does not) protect freelancer contributions. The subtext is that the freelancers must pay additional fees to the Copyright Office to register their works, subverting the very intent of providing a "serial registration" in the first place (not to mention making use of registration data to determine chain of title virtually impossible, creating multiple registration chains for the same work). Consider the current issue of The Magazine of Fantasy and Science Fiction. If one took the concept of registration at face value, this would garner a single $35 fee for the Copyright Office, protecting its entire content regardless of who owns it. Not so fast: Under the Morris doctrine, each freelance work must be separately registered to be protected. That means that sixteen of the eighteen items appearing in this table of contents will each require a registration, for a total of perhaps as much as $560 in fees (perhaps less if authors take advantage of various group registrations, at the potential risk of being "late" to register and thereby losing statutory-damages and attorney's fees in litigation against an infringer).

Then there's the failure of the Copyright Office to provide definitive, APA-compliant guidance on how to terminate (revoke) a license under § 304(c) (for works first published prior to 01 Jan 1978) and § 203 (for works first contracted on or after 01 Jan 1978). It's only been forty bloody years since the 1976 Act was passed, but this is still an open question: What form a termination notice must take, how it must be delivered and to whom, when it must be delivered, whether the termination letter is recordable and when, under what circumstances an intermediate agreement (say, for another edition) forfeits termination (revocation) rights, and so on. This particular failure to even act is anti-creator and pro-distributor, if only because it enables continued publisher quibbling that "the notice wasn't technically correct."

Then there's the substantive problem of actual conflict, epitomized by the mess that the music industry made of 2Live Crew. Remember, there were creators on both sides in that case, but it results from humor-impaired bullying by the major industry figure that valued an existing revenue stream that flowed not to the actual creator, but to a particularly difficult-to-negotiate-with "music publishing company," over the creativity of rap artists outside of the N'ville establishment. (Note: Neither version is to my taste or even all that "good" in an analytic sense.) Similarly, the problems arising from and around The Wind Done Gone and Sixty Years Later: Coming Through the Rye also reflect agency capture: The Copyright Office has failed to act, and by doing so has kept matters in practice imbalanced in favor of distributor/publisher interests.

None of this is to say that the way Ms Pallante's departure appears to have been accomplished represents best management practices. Indeed, I simply do not know what led to it, although in the Department of Defense "moving to a new position without prior notice and locking out of the computer/administrative systems" would be a sign that some non-performance-related matter required an immediate change of command. It could be health; it could be allegations of misconduct that will later prove unfounded, but have a serious appearance; it could be discovery of a conflict of interest so serious that no "unwinding" is possible, even one imputed from another family member; it could be real and serious misconduct. <SARCASM> Perhaps it's just an audition to take over for Mr Drumpf on The Apprentice. </SARCASM> It could, of course, just be heavy-handed bureaucracy at work, or even spin coming from one side that the official sources have chosen not to respond to. We don't know, we probably won't know in the near future, and we need to just move on... but we also need to watch for this methodology again. We should also ponder the irony that because Ms Pallante is a mere employee of Congress, she has less protection for her job than she would have had if the Copyright Office was in the Department of Commerce, along with its intellectual-property counterparts of patents and trademarks.

Nonetheless, Billboard's self-interested explication is ignorant bullshit. The establishment figures of the music-publishing and music-distribution industry simply do not represent the interests of songwriters/composers and performers, except incidentally. And of course I manipulated the time stamp on this entry by an hour or so (the 'net connection was dicey for a while). I just couldn't resist.

19 October 2016

Half a Century Ago

I'm busy watching Chris "Hardball" throw softballs at the candidates and then duck. Half a century ago, Paul Simon — not the late Senator — predicted this result.

Sitting on a sofa on a Sunday afternoon
Going to the candidates' debate
Laugh about it, shout about it
When you've got to choose
Every way you look at this you lose

OK, so he got the day of the week wrong. And it's an ode to an alcoholic...

Just like the other moderators, this one is doing an extremely poor job of actually ensuring that the candidates try to answer the question... and then quotes things out of context as his version of a "hardball" to candidates. We'd all be better served with either John Oliver or Jon Stewart as the moderator.

Bluntly, the Commission on Presidential Debates is not doing its bloody job. It is not structuring matters to encourage substance and discourage soundbites; it is not selecting moderators who will enforce the rules — not even the flawed ones it has; when it allows outside input on questions, it allows those questions to be distorted by pressure-group tactics (as only the latest example, the acknowledgement of NRA-sponsored pressure on gun rights, which is at best a side issue for a segment purportedly on the entirety of the Supreme Court); it doesn't have a coherent vision of what people want or need the debates to be. In short — and precisely because it is a bipartisan commission, not (as its co-chair claimed) a nonpartisan commission — this structure disserves both the candidates and the electorate.

When I've got to choose, every way I look at this I lose.

15 October 2016

Complexity Isn't a Vice

...despite the best efforts of the leadership of both major political parties in this nation to make everyone believe it is. And it's ironic and somewhat shameful that Hollywood can remind everyone of that. Hollywood — the center of an industry that thinks it appropriate and less risky than trying something new, something based on what's happening today (or even in the last decade), to revive 25- and 40-year-old ill-conceived serials for long runs now; that is desperately afraid to confront its own historical and too-often-continuing practices of rampant discrimination, whether on the basis of race or gender or religion or national origin or education or whatever; that is unable to create a poster-type ad for a TV series with more than two central characters that is more than kindergarten-cutout away from every other such ad. It's still more intelligent, more nuanced, and more real than just about anything coming out of the Heffalumps or the Jackasses, let alone out of individual candidates' mouths.

Even at that, the next ten words, and the next ten after that, are nowhere near enough. Don't give me a few words, or even a sentence or two strung disjointedly misspelled on some PowerPoint slide (that will probably bore the hell out of everyone and take their attention away from what is actually being said anyway). Give me a paragraph or three. Per issue. With facts and footnotes and citations to back them up, and the honesty to admit that ideological determinism guarantees that virtually every day includes body counts. Ideology can determine only where we start in answering the questions that reality puts to us. It can't answer those questions; it can't determine what order we answer those questions; it can't even illuminate what the next set of questions is going to be, when we've already committed to answering the first set — or the set before that, or even just trying to answer the questions put to us decades ago that we've never managed to acknowledge, let alone answer.

In the end, we don't have ideological parties in the US: We have almost purely factional parties, defined by the unenlightened self-interest of their leaders and influence-peddlars and eminences gris, virtually none of whom have actually read Adam Smith or the many other progenitors of the modern "market economy." They therefore failed to notice that those works were struggling with not immediately political or economic or financial, but profoundly moral and ethical, problems concerning not just how the great unwashed behave in aggregate, but on how individual members of the nobility are obligated — not merely advised — to conduct themselves. It matters not whether the "nobility" is composed of landowners through inheritance, or captains of commerce and industry, or conquerors of new vistas previously unimagined. So I will, very shortly now, be staring at an absentee ballot trying to choose between the lesser of "Who cares?" yet again.

Screw it. After Cthulhu turned down the Heffalump candidacy for Vice President because he thought the top of the ticket was too extreme and too evil...

09 October 2016

Appalling

I've turned off the "debate." Neither candidate has any bloody respect for the voters. Both candidates have egregiously failed to answer questions put to them... from the very first question. They were both asked by a black woman the entirely reasonable question of whether they were modelling appropriate behavior and language for the children assigned to watch these debates for school. One candidate spent 17-19 seconds of the two-minute answer addressing that, in very mealymouthed ways without admitting any fault. The other candidate spent even less time on the question. Both candidates had campaign speeches on BS economic and not-so-disguised class-warfare stuff that they wanted to lead off with, but got an easily anticipated question about their conduct. Both failed to answer the question actually put to them. Not just failed... refused. And the moderators are letting them get away with it.

Refusing to answer the question doesn't look very "Presidential."

My college gymnasium deserves better than this crap. Back to the bloody football game, where at least there's an attempt to play within the rules and the players get penalized for not doing so. Perhaps if the moderators had the ability to take speaking time away based on misconduct — and did so — some of this would stop. Instead, they're bloody 1980s regional-telly presenters on Anglia TV, unable to deviate from the script for fear of being fired... and the script was written months ago by some party hack (regardless of party).

The candidates get an F. The so-called "Debate Commission" gets an F. The moderators get an "Incomplete." And as of right now, I'm an "undecided voter" because I can't in good conscience vote in favor of any of the declared candidates... only against them. So the political apparatus also gets an F. That's an insult to every veteran, because we've put our butts on the line for the right to vote all the way back to the 1770s.