16 July 2017

Unreliable Narrators Making Sausages in The Jungle

This platter of uneven link sausages is about unreliable narrators — or, more likely, just the wrong narrators.

  • First up, there's yet another instance of an arrogant entitled asshole speaking primarily for interests that are not — and can never be — registered voters. Parts of his griping make sense on the surface, but one must look carefully at the undisclosed premise:

    "The United States of America has to start to focus on policy which is good for all Americans, and that is infrastructure, regulation, taxation, education," Dimon said. "Why you guys don’t write about it every day is completely beyond me. And, like, who cares about fixed-income trading in the last two weeks of June? I mean, seriously."

    Hugh Son, "Dimon Says Being an American Abroad Is 'Almost an Embarrassment'," Bloomberg (14 Jul 2017/0641EDT).

    Consider for a moment that at least according to public biographical sketches that don't appear to have been refuted anywhere, neither Dimon nor his immediate ancestors (nor, for that matter, any member of his immediate family) has ever stepped outside the world of investment banking in his lifetime. That is, his experience is entirely as a next-quarterly-report-oriented "steward" of other peoples' money. And this reveals at least part of that undisclosed premise: That the further passive accumulation of wealth and capital by and on behalf of those who've previously accumulated it — disproportionately, and perhaps primarily when considering who actually gives it voice, by inheritance founded on whose family got "there" first, lawfully or otherwise — leads inexorably to all that "is good for all Americans."


    Perhaps looking at the history of his own bank (and other banks at which he's worked) regarding the nineteenth-century slave trade, arms dealing, and so on might have been relevant to helping determine what "is good for all Americans." His list, though, displays an inherent bias in favor of capital accumulation without regard to the source of that capital, the methods of accumulation, or the later deployment of that capital. It's not that this is never a valid position (at least in consideration and the abstract), but that it's never the only valid position. It simply cannot be stated as fact.

    Some day, someone who has even a basic, nonmathematical understanding of thermodynamics is going to rise to a position to comment on Society from a perch endowed with the patina of economic success. And then maybe he or she will be able to understand — even if dimly and incompletely — an even moderately mathematically based (as in "basic undergraduate chemical engineering/physical chemistry/molecular biology") explanation of how the universe has long ago disproven that premise. Not this time, though: Apparently, rising to the top at a major bank, getting fired, and then rising to the top at another one is adequate understanding of things that banks "never get involved in" but that make post-Napoleonic banks possible in the first place. (And we'll leave the history of benefitting from unlawful monopolies in both chains of banks for this particular speaker for another time…)

  • And then there's the intersection between Dimon's drivel and the purported "tax reform" movement endorsed by the Drumpf administration (for whatever value the current proposal(s) on the table have). Dimon's speech — and so, so many speeches, papers, and other pontifications coming from both the Drumpf Administration and the Heffalumps in general — claims that the US tax burden on corporations is excessive. Consider for a moment that places where the "tax burden" is less all too often increases total "government costs" by
    (a) not providing realistic government services necessary to a corporation, such as a working law-enforcement-and-courts system that ends up requiring a corporation with significant assets to either pay through the nose for insurance or hire a private army (or at least battalion) for internal security and/or
    (b) increased bribes to government officials to make up for their lower salaries.

    The major "studies" being bandied about concerning comparative corporate tax burden at best minimize (a) and completely ignore (b)…

  • {written preannouncement} If any character in all of fiction is inherently gender- (and race-, and probably even species-!) fluid, it's Doctor Who. One cannot even argue that the character is inherently "dominated by the social mores of upbringing as a male," since "as a male" seems to have so little connection to "Timelord" in the first place… and is certainly attenuated by the thirteenth complete-body replacement (more realistically, if "male" has any relevance here despite being used by A Certain Bigoted Subset as a touchstone, at latest by the eighth complete-body replacement)! Those who are not gender-fluid, though, are management "responsible" for commercially exploiting the Doctor, virtually all of whom have a Y chromosome. And so… {written postannouncement} the male showrunners and male hierarchy approved as the new Doctor Who a female secondary-character actor brought over from the showrunner's prior (uneven) series. I predict internet shitstorms for a week, followed by occasional rumblings until the three weeks prior to the scheduled in-role unveiling at the end of the year. The shitstorms are going to come from all sides, because almost everyone involved thinks they own the whole thing, ranging from subsets of fandom to marketing dorks. And none of it will focus on gender or other measures of diversity in the writing rooms, or in production, or anywhere else offscreen… but we can safely ignore the man (it's almost always a man) behind the curtain.
  • Speaking of fictional characters, how 'bout those press briefings? Does anyone actually recognize any of the speakers (or even subjects) as being anything other than fictional characters? And would things be better otherwise?

10 July 2017

Unexpected Chunkiness

There's a piece of real meat in each link sausage on this platter. It's just not the piece (or often species) of meat that the respective wurstmeisters think is in there… which is one reason even the sausage-makers don't watch sausages being made.

  • I have to admire the rhetorical strategy of a piece at The Economist that manages to use a semiobscure literary referent in an attack on Labour's "bourgeois dream" but never confronts the fundamental economic failures of the English system (inherited wealth and real-property rights that depend upon factional conflicts in the fourteenth and fifteenth centuries), let alone the elephant in the room: the Rawlsian original position/veil of ignorance analysis. This seems short-sighted, given that the underlying currents in Lanchester's novel are of injustice more than of personal status per se (instead of as a complex second-order consequence underlying injustice)… or, perhaps, it's just another instance of the question — and the questioner's preconceptions — shaping the answer. The piece is an interesting sub-explanation that sustains some small measure of credibility and further thought, but once one gets outside of Islington (whether by Tube or by living elsewhere) it rather falls apart.
  • Another piece at The Economist also misses the point by failing to get inside the motivation — and Rawlsian subversion — of progressive rock as having continuing value by failing to note who were the leading exponents of progressive rock: Almost entirely musically-inclined public-school boys whose musical ambition was thwarted by the internal politics of the classical-music establishment of the 1960s and 1970s. Prog rock is as much a meritocratic reaction to the facile hypocrisy of "we say we want merit in our orchestras, but really it's merit from the right sort of families spiced with the occasional bit of upward mobility backed by something off-kilter" that one can see around the edges in such too-often-dismissed works as Hilary and Jackie: The prog rock musicians came from a social class in which there was actual place and freedom to practice, which didn't happen in American small-towns or ghettoes and/or European public housing. And the classical music world had its own markers for privilege, in-clubs, factionalism, and so on; the boys at the Charterhouse School sure as hell knew that, including the son of a captain in the Royal Navy (and noted industrialist) and a descendant of the Lord Mayor of London who formed Genesis as much because the acceptable careers mapped out for them by their families did not fit their own ambitions as anything else. And the less said about representativeness in the arts, the better.
  • It's really sad when it takes a columnist who focuses on the fashion industry to excoriate nepotism and celebrity-worship in print publishing, and especially in art-related print publishing. It is not, however, unexpected: The portions of the press that cover "the press" are, to say the least, just slightly handicapped by conflicts of interest, special-snowflakism for the print-based parts of the entertainment industry, the emperor's new clothes, and not-invented-here syndrome.
  • Artists are dangerous. Just ask any immigration lawyer… and, if you can get an honest one into an off-site location over a tasty beverage of choice with no witnesses, ask an immigration official about how foreign artists (and writers and musicians and actors) unjustly take jobs away from locals. Sadly, it doesn't matter much what nation(s)!
  • Renaissance-era memoirists are even more dangerous. Then there's the problem of Samuel Pepys, and of Jonathan Swift, and into the Enlightenment of John Locke, and the distinction between "memoir" and "journal" (let alone the issues raised by satire and parody).

04 July 2017

Feuerwerken (Rhetorical and Otherwise)

The US celebrates this date every year as a day for family and friends gathering, probably overcooking some meat on the barbecue and overindulging in watered-down "beer," and watching some "fireworks" either in person or badly broadcast from high-interest public places (usually hosted by fools). Politically, our current officeholders make it look like we got started on the DUIs and maimed hands months early.

The President-Who-Thinks-He's-King-George-II (and that's not just another bad H'wood sequel) doesn't really give a rat's ass about policies, except insofar as the dog-whistling he uses in support of what passes for an "agenda" can enhance the personal power of himself and his close friends. He's got plenty of time to watch cable news and then attack a woman for purportedly doing her purported job after alleged surgery of a nature significant only to misogynistic asshats. He does not, however, have enough time to offer any explanation of why his bigoted immigration executive orders actually have any more basis in legitimate national security issues than "trust me, it's about national security and not my unconstitutional animus against Muslims and those who might have Muslim family members."

Illinois is about to flirt ever more closely with (and perhaps actually sleep with!) junk-bond status, thanks to a history of nepotism in government that would have shamed the UK Parliament of two-and-a-half centuries ago. And that goes for both parties (even if the Jackasses are more nationally known and identifiable as such). Contrary to the bullshit showing up in some news sources, this isn't about "excessive union contracts" or about "pensions"; the structural problems with Illinois government have resulted from those parts of its "employment" practices that were not unionized and do not contribute significantly to the pension-fund deficit. This is, instead, more illusory subregional city-versus-commercial-agriculture bullshit that partially masks a disturbing racist legacy and regressive tax base. Note that the chief obstructionist is not a "career politician," but a purported "businessman" whose background is not really in business (actually producing or providing a single damned thing), but in the (Maxwell's) Demonology of so-called venture capitalism (which, in practice, too often descends into class-based private banking… particularly at the firms he was associated with). That should sound all too familiar regarding the first example above…

Then there's the Sherriff of NottinghamMaricopa, who is actually far more expert at dog-whistle politics than either of the two preceding examples (both of whom are in their respective first-ever-at-any-level terms in office). I'd propose requiring him to wear pink underwear and/or overalls, but I still subscribe to the laws of war and their prohibition on humiliating prisoners. I think I'll just settle for pointing out that he's a child of immigrants himself… from a region renowned at that time for immigration fraud; he's sort of a Dreamer, although his variety of dream is a nightmare for almost everyone else.

We've become a nation united — so to speak — under the rule of men. Particularly odious men, who are in power in large part because what passes for "opposition" and "alternatives" has the same damned flaws in the candidates it puts forth (the chief self-aggrandizing obstructionist in Illinois certainly isn't the only self-aggrandizing obstructionist in Illinois). Gender is an issue here, but certainly not the only one; take a look at just how few veterans, or non-Northwest-European-Caucasians, or individuals who've exceeded lower-class parental status, there are in actual positions of power, both absolutely and proportionally. Largely — but not always — the Jackasses one finds on the ballot just didn't inherit as much wealth or other sources of power as did the Heffalumps. Intense discussions of policy and nuance do not occur in soundbites except when paralleling — or parodying — Godwin's Law, whether intentionally or otherwise.

The contrast with this nation's tradition of celebrating giving the finger to the king — that is, declaring as "victory" the declaration itself instead of the hard-earned, still-evolving result — is a bit much for me every year, but especially this one. It might be just the calendar, as mid-September is historically harvest time in much of the nation (presuming that continued reification of eighteenth-century-model seasonal agriculture continues to make any sense). But if we actually gave a damn about the Rule of Law instead of the Rule of Men, none of the examples listed above would be more than outliers, horrible and exceptional examples of Murphy's Law in action. Lord Acton was wrong: It's not power that corrupts, or absolute power that corrupts absolutely; it's the striving for power from a sense of entitlement that corrupts. Of course, that first name ("Lord") is a big bloody hint of why he couldn't see his error: He was born to power. It took a century (and somewhat less inherited privilege) for another Englishman — using a fictional character as a mouthpiece — to come closer: The object of power is power. And that is not at all consistent with any part of the Declaration of Independence.

29 June 2017

Pre-Holiday-Barbecue Link Sausage Platter

To keep the vegetarian from crawling out of the marinade for my usual (last year, obviously, was an exception!) "vegetarian barbecue" on Give the King the Finger (Instead of Celebrating Actual Victory) Day, I've made up this tasty platter of link sausages.

OK, "tasty" might be false advertising. If, that is, this blawg counts as advertising, which leads directly into the first sausage:

  • This blawg's only feline friend the IPKat (no, cats are not ordinarily welcome at my barbecues; they tend to be trip hazards around the open flames) notes that "lack of borders" works both ways for Google search results, at least in Canada. And at least founded on a prior judgment and evidence of fraudulent intent. This has a couple of implications that nobody will really like… but they are perhaps-inevitable consequences of "the entire world is not the Internet, no matter what entrepreneurs would prefer."

    Perhaps most oozing-fatty-barbecueishly delicious, this is another instance of petard-hoisting. Google — not to mention its allies, both formal and otherwise — has long run a global business, obtaining revenue globally and funneling it (or not, depending upon the tax consequences!) to Itself, which is in turn a Frankenstein's jurisdictional monster. However, Google has also long attempted to evade the consequences of entering other markets; not just those taxes mentioned in the preceding sentence, either. Here, there's a specific court judgment (with, admittedly, the flaw that the defendant abandoned the defense, resulting in what US practice would call a "default judgment") regarding a specific misuse of information with a limited remedy that Google attempted to evade on purely territorial-jurisdiction grounds: That a judgment related to conduct in British Columbia — or even more broadly in Canada — could not justify a worldwide removal of search results. This isn't just a desire to have one's cake and eat it too; it is an arrogant claim that the baker is entitled to the flour without paying for it in the first place, in order to bake the damned cake without engaging in appropriate health practices (whether "required by regulations" or otherwise). In short, Google's position is that it's entitled to the benefits of a worldwide reach without any consequences whatsoever… except, perhaps, to its own market share.

    There is, of course, a significant danger here: the Ehrenfeld problem. It is not really raised in this case; although I am troubled by the fact that it's based upon undefended allegations, those allegations appear both prima facie and factually valid and sound, leaving only possible abstract defenses of "justification" and "improper claim of ownership." It is, nonetheless, an uninvited guest at the barbecue, because relying upon a final legal position presumes due process in a disturbing way… and, more to the point, presumes the practicalities (such as paying for counsel, let alone finding available counsel) implied by "final legal position," and not just for obvious circumstances like defamation and infringement of intellectual property.

    I'm not going to pretend that this is an easily evaded conundrum. The whole point is that it is a conundrum that doesn't have easy, entrepreneurially-friendly, ideologically-simple analysis or resolution. Life is nearly as hard as that bit of last summer's potato salad under the grill lid.

  • Which, in the broader sense, leads to the propriety of publishing depending on, well, something that's supposedly better when hard: a portion of the male anatomy. Of course, that region has no grey cells in it, so thinking with it is contraindicated in the first place…
  • … but is perhaps better than thinking solely with one's wallet concerning the most-profitable part of publishing. Leaving aside that anything associated with Robert Maxwell needs at least as much skepticism as anything associated with Sauron and his minions, it remains fascinating (and frustrating) to me that "publishing" continues to be treated as a single monolithic structure despite being composed of thirteen distinct industries. "Publishing" is no more monolithic than "self-propelled wheeled vehicles" (ranging from motorcycles and automobiles through carnival rides, construction equipment, and fire trucks, to armored cars) is, and almost certainly less so.

    One might ponder just how this sausage is connected to the preceding one:

  • But perhaps that might be too frustrating if one actually reads anything, let alone what is on offer from commercial publishers. Frankly, about two-thirds of the names in that graphic (across several categories) don't qualify as "intellectuals" in any sense of the term; "has done bachelor's degree" doesn't make one an intellectual! Neither does "has bachelor's (or even graduate) degree leading to Speaking From Authority on unrelated subjects," as is uniformly the case with the individuals identified in the graphic as "Right," "Explainers," and "newer lights from Silicon Valley."

    It's not that a bachelor's degree (or graduate degree) is a prerequisite to "clear thinking" — it's that the definition of "intellectual" implicit in the entire article is simultaneously both condescending (and sneering, not to mention argument from authority) and the worship of formal qualifications and/or entrepreneurial nonfailure rates, most of which are parental-social-class-selective in form (and too often in substance). Not to mention the irony of both the source of this article and the preceding link sausage as forms of the Argument From Authority in and of themselves.

22 June 2017

Coal in the Stocking Year-Round

Just a short note on a recent matter that epitomizes SLAPP (Strategic Lawsuits Against Public Participation):

On Sunday evening, John Oliver spent most of his Last Week Tonight broadcast on coal. The broadcast included both satirical and factual criticism of one particular coal magnate. Said magnate has now — as Oliver predicted he would, and consistent with his past (mis)conduct (and his attorneys' (mis)conduct, compare W. Va. R. Prof. Cond. 3.1 with New York Times v. Sullivan, 403 U.S. 713 (1971)) — filed a libel suit.

<SARCASM> There's an obvious factual problem with the claim that Oliver engaged in "ruthless character assassination" (Cmplt. ¶ 51): There was Ruth involved. Associate Justice Ruth Bader Ginsburg, that is, as one of the majority in Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009), a matter mentioned during Oliver's broadcast segment. Indeed, it's easy to argue that Oliver was cleary with that Ruth, because the gravamen of the Last Week Tonight segment was that self-aggrandizing, self-interested magnates in the coal industry have engaged in substantial conduct to the prejudice of good government… and that is precisely what was at issue in Caperton.

Besides, that plaintiff (who will not get the dubious privilege of being named on this fine blawg) might not need his oxygen tank to survive (Cmplt. ¶ 5) if there were fewer coal particulates in the air. </SARCASM>

Frankly, given the respective track records, I have more confidence that Oliver and his team of comedy-oriented writers accurately stated the facts, and more to the point refrained from distorting third-party documents like the Federal Mine Safety and Health Administrations investigation of the Crandall Canyon Mine collapse, than I do in the counsel who filed this SLAPP action.

19 June 2017

Presolstice Sausage Platter

No real theme here today, just a couple of semirandom sausages each more resembling a "rope" than a "link" sausage. Sort of; I think this metaphor is getting a wee bit overstretched.

  • I have to laugh at the earnestness and colossal ignorance found in a piece trying to explain Marvel's recent "cancellation" of its Black Panther comics:

    Quite simply, World of Wakanda wasn’t selling well enough — but the solution isn’t as simple as going to your local comic store and buying more copies of Gay’s books. That’s because, in Marvel’s eyes, the number of copies of World of Wakanda that were sold in comic book stores was decided months ago. Considering the numerous ways and formats in which we are now able consume different kinds of pop culture, from books to music to television shows to movies, the comic book industry is unique in that it still relies on an outdated method of distribution.

    Every major US comic book company — Marvel, DC, Image, etc. — relies on one company, Diamond Comic Distributors, to print and ship their books to independent retailers, a.k.a. the owners of comic book shops. Diamond sells comics to comic book shops as final sale, meaning owners aren’t allowed to return or exchange books that didn’t sell. This is in contrast to traditional book retailers, which can sell back the books they weren’t able to sell.

    "Marvel canceled Roxane Gay and Ta-Nehisi Coates’s Black Panther comics. The problem goes beyond Marvel" (16 Jun 2017) (italics in original, hyperlinks omitted, inept quasijournalistic paragraphing corrected).

    This particular screed — as reasonable-sounding and generally accurate as it is — misses reality by implicitly claiming that "books to music to television shows to movies" are all distributed so inherently differently from and superior to comics that it's just the distribution system at fault. Not so much; a nonexhaustive list, in no particular order—

    • Just try getting digital works into the library market (which is not exactly trivial, and especially so for teen/YA material like many digitized comics) without being on Overdrive. Just try. Better yet, go to your local library and request an e-book from a major university press that is not obviously a purely academic work and see what reason you're given for the library's refusal to acquire that work — say, any of Michael Klarman's well-written, accessible works on the history of the US Constitution, published by the Oxford University Press.
    • The later-in-the-piece description of "pre-ordering" still describes exactly how commercial publishers treat all works. The only distinction — and it's a narrowing distinction given the recent wave of reconsolidation — is that book distribution is oligopolistic, not monopolistic. Otherwise, the tyranny of pre-orders is exactly the same… and it's actually even worse in non-comic periodicals.
    • Holding up the returnability of books as a feature, not a bug, is more than slightly insane, especially for trade nonfiction… if only because the timing of "returns" and "returnability" was set in the 1930s, ignoring countless changes in both production and fulfillment technology/practices and financial systems that should have collapsed the timelines (but haven't because that would be to the publishers' disadvantage — the current system favors them because it delays and reduces payments to authors). And it's not only that.
    • It's really no better for music. Perhaps you might recall, a few years ago, that an antitrust consent decree was entered against the major distributors of CDs… and if you really think things are better in listenable/downloadable distribution, you haven't been paying attention. The details differ slightly, but that's about it.
    • Television is a laughable distinction, again being an oligopoly-with-conscious-parallelism instead of monopoly issue. Realistically, even "cord-cutters" are still stovepiped through a very small range of distributors, at remarkably similar prices when recalculated on a per-viewer-hour-expended basis.
    • Movies? Really? Does this writer understand a damned thing about film distribution, whether first-run or otherwise, whether archly-commercial-aspiring-blockbuster or anything else?

    Overall, this article gets a C-. It accurately notes problems in comic distribution (and that's leaving aside any particular perfidy at Diamond itself, which is nontrivial but difficult to demonstrate at article length). It stumbles, however, in trying to overdistinguish those problems from the rest of the distributed-copies-of-entertainment industry so as to make its own chosen subject seem unique and important. It ultimately founders in its ignorance of the nondistinctiveness of oligopolies (especially once conscious parallelism is considered) and monopolies, and particularly so in the distribution as opposed to manufacturing phase of an industry.

  • In an interesting decision this morning, the Supreme Court decided that if it's ok for Paul Cohen to wear a jacket proclaiming "Fuck the Draft" in a courthouse (despite posted rules demanding decorum), it's ok for a music group led by a man of East Asian ancestry to call itself "The Slants"… and register the trademark in the name. Frankly, Matal v. Tam is not a hard case: As the Court held (PDF slip op.), the Lanham Act's prohibition of registering marks that "disparage… or bring into contemp[t] or disrepute" anyone (whether alive or not) facially violates the First Amendment. (The court failed to note that sometimes this is more subtle, such as the Aunt Jemima mark, than "mere word marks" can easily communicate.) On this point, the court was 8–0; there was only a nominal plurality for part of the reasoning, but all eight judges (the matter was argued before Justice Gorsuch was even nominated) affirmed the Federal Circuit's judgment below rejecting § 1052(a).

    The key point (which is not all that clear in the opinion) is that although a mark and its registration by themselves constitute commercial speech, the government's actions in registering (or refusing to register) a mark are most emphatically not. The government's actions are, instead, intertwined with the First Amendment's prior-restraint-on-speech issues… because registering a mark is as much, itself, about the markholder's own speech as anything else. Tam obviously makes possible the registration of such marks as "Jailbird Hillary" or "Lying Donald" so long as they meet the other requirements of the Lanham Act (use in commerce, first use, etc.). On the other hand, there's something darker in here, too, given the intertwining of commercial, "moral," and political speech in things like branding and advertising of contraceptives… or the converse.

    Of course, the NFL and its intransigent Washington-DC-based franchise will welcome this decision as some kind of vindication. That ignores that whether something is constitutional (or not) often has very little to do with whether it is a good idea (or not)…

14 June 2017

Three Left Feet

The courts have been busy on intellectual property matters of late — not just Over There, but Over Here (and Over Yonder, too).

  • First, there's a two-part, two-decision, two-jurisdiction dance (in 13:8 time) concerning piracy and attempts to screw copyright holders in the name of "information access." By Google specifically, and "the internet means everything expressible digitally must be free" advocates in general.

    Part 1 is simple and directly concerns Google. Google has a long history of posting verbatim, unredacted takedown requests to Chilling Effects (now known as Lumen), which semiassiduous pirates (among others) then search to find interesting material for piracy (or, for takedowns related to defamation and/or invasion of privacy, blackmail/extortion/direct shaming). After all, if the URL is quoted in the takedown request — as is required by the takedown rules, whether for copyright, for trademark, or for other rights — the notice substitutes for a Google search result that is being challenged, doesn't it? Apparently, the German courts have caught on that Google is merely using the takedown request itself as both a shaming device (to deter takedown notices) and, more to the point here, an ersatz search result. Amusingly — to those of us with grim senses of humor — the injunction notice (PDF image file) does precisely what it demands Google do: It fully redacts the identifying information so that it is not itself an ersatz search result. The IPKat has a useful, plain-English summary… as far as it goes.

    But that just leads to Part 2, which also goes to ersatz piracy: Link-and-search sites that claim not to have any infringing material, just the links/metadata to find it elsewhere. The Court of Justice of the European Union didn't like this dance any better than did the Oberlandesgericht M√ľnchen from Part 1. I recommend the IPKat's useful, plain-English summary over the CJEU's infelicitous translated opinion, but the result is the same: "Link sites" induce copyright infringement and are therefore blockable (notwithstanding GS Media' notice concepts) under core European and Berne Convention doctrines. And the links offered in this sausage are with malice aforethought and an acute appreciation for the well-hoisted petard.

  • In Design Basics, LLC v. Lexington Homes, Inc., No. [20]16–3817 (7th Cir. 06 Jun 2017), Judge Hamilton attempts yet again to grapple with "the difficulty in finding protected creative expression in a crowded field, in this case, architectural design of single-family homes… [while] administering intellectual property law to discourage so-called intellectual property 'trolls' while protecting genuine creativity" (slip op. at 1). Judge Hamilton is not entirely successful, but that's not his fault at all: It is, if anything, the fault of the parties, their lawyers, and to a lesser extent the poor writing in the Copyright Act itself.

    The case actually turns on the fundamental distinction between copyright and patent law. In copyright law, there is no "copying" without actual access to the source work; put another way, "independent conception" is a complete defense. In patent law, however, the patent application itself is as a matter of law universally known, so "independent conception" is not a defense. But the court did not stop there, because it took the opportunity to smack down transferee misuse of enforcement actions as a "revenue model." Perhaps what this Design Basics matter (as Judge Hamilton's opinion notes, in the last decade Design Basics has been plaintiff in over 100 copyright-infringement actions) demonstrates more than anything else — particularly when read together with the Sherlock Holmes matters — is that if you're a troll, you need to stay away from the Seventh Circuit because the judges will turn you to stone. Gleefully.

    The policy-level matter that "troll" litigation exposes is one that the various affected industries, the various legislatures, and indeed damned near everyone else have evaded even mentioning: Transfer of ownership (not just rights) from those whose personal efforts led to "Progress in the useful Arts and sciences" to those whose personal efforts consist solely of exploiting that "Progress" for financial advantage, usually via a portfolio of similar increments of "Progress" originating from multiple creators. This is a problem across both copyright and patent law. It is also a problem with treating intellectual works as "mere" property, with the underlying assumption that they are therefore freely alienable because all property "must" be. I point this out precisely because applying fourteenth-century notions of the immutable characteristics of tangible property seems to be putting the cart before the breeding rights to the horse.

Over Yonder is going to have to wait for a better copy of the opinion...

12 June 2017

Of Lamps and Golden Doors

President Drumpf, you're descended from immigrants, and in particular on one side of the family from immigrants from a region that was historically hostile to the (then much-younger) United States at the time. It's bad enough that across the Pond, your allies in the ruling party are getting in bed with the Northern Ireland Unionist successors to Ian Paisley (a group that has committed more violent crimes and killed more Americans than have citizens of the Suspect Six Nations) after campaigning on a platform indicating that only they could fight terrorism. But:

Two United States Courts of Appeal have handed you — and your marginally competent and marginally ethical advisors, both attorneys and otherwise — your head on your "corrected" Executive Order, no thanks to Kathy Griffin. One court eviscerated your position primarily on constitutional grounds; the other, primarily on statutory authority and interpretation grounds. More to the point, the Fourth Circuit (the entire roll of active judges, in fact) rejected your unconstitutional animus, while the Ninth Circuit (a panel of three different judges than those who rejected your first Executive Order) engaged in a close reading of the relevant statute and rejected your sweeping policies as simultaneously unfounded in fact and unauthorized by statute (PDF). That is, the circuit ordinarily considered "most likely to be curmudgeonly, short-sightedly, and counterproductively anti-activist" reached to the Constitution, while the circuit ordinarily considered to be "most likely to be judicial activists" was restrained in its method… and both rejected you without giving you any unearned credit for having two intellectually honest brain cells to rub together. They weren't quite that vicious in their rhetoric — only in their fact-finding and reasoning.

The Ninth Circuit's opinion today is founded on exactly what a judicial opinion is supposed to be: A careful consideration of facts as they relate to the dispute in question, not to broad policy objectives. That's something that neither you nor your advisors did, since I don't think "policy" or "facts" were really at issue for you — only bigotry.

Two versions of a report from the Department of Homeland Security (“DHS”) surfaced after EO1 [the January Executive Order, previously enjoined] issued. First, a draft report from DHS, prepared about one month after EO1 issued and two weeks prior to EO2’s [the currently-at-issue Executive Order] issuance, concluded that citizenship “is unlikely to be a reliable indicator of potential terrorist activity” and that citizens of countries affected by EO1 are “[r]arely [i]mplicated in U.S.-[b]ased [t]errorism.” Specifically, the DHS report determined that since the spring of 2011, at least eighty-two individuals were inspired by a foreign terrorist group to carry out or attempt to carry out an attack in the United States. Slightly more than half were U.S. citizens born in the United States, and the remaining persons were from twenty-six different countries—with the most individuals originating from Pakistan, followed by Somalia, Bangladesh, Cuba, Ethiopia, Iraq, and Uzbekistan. Id. Of the six countries included in EO2, only Somalia was identified as being among the “top” countries-of-origin for the terrorists analyzed in the report. During the time period covered in the report, three offenders were from Somalia; one was from Iran, Sudan, and Yemen each; and none was from Syria or Libya. The final version of the report, issued five days prior to EO2, concluded “that most foreign-born, [U.S.]-based violent extremists likely radicalized several years after their entry to the United States, [thus] limiting the ability of screening and vetting officials to prevent their entry because of national security concerns” (emphasis added).

Hawaii v. Trump, No. [20]17–15589 (9th Cir. 12 Jun. 2017), slip op. at 10–11. That is, even your own hypersuspicious purported "experts" couldn't support the terms of the restrictions you would actually impose.

I'd suggest that you grow up, but telling a two year old who can't decide which temper tantrum to have next to "grow up" is both unrealistic and frankly counterproductive. And now that I think about it, that's insulting to the two-year-olds I raised — even at their worst they didn't act from the sense of entitlement you display every day.

05 June 2017

Harsh Language

<SARCASM> I think I may have figured out a tweet's real meaning. Sort of: It's that The Donald is a poor language student and can't even name the letters in his new language accurately, at least not when tired.

"covfefe" = "КОВВ"

which is my best guess for an American (that is, who really knows no other language) learning Russian so he can speak to his new masters, and slightly fumbling the letter names (it's actually fairly close, phonetically). That's a nonsense jumble, but might be an acronym for something in the Foreign Ministry… or ФСБ… </SARCASM>

04 June 2017

Head Cheese?

There is no head cheese on this platter of link sausages. <SARCASM> I would have fired her long ago just because I don't find her performances amusing, but as a fan of Richard Pryor I clearly don't understand contemporary stand-up and sketch comedy. </SARCASM>

  • The French courts have indirectly begun prying away at some really dubious publishing/entertainment industry practices through exercising the original purpose of trademark law. Trademark law originated not as an intellectual property right, but as a consumer protection statute. In Anglo-American law, the "trademark" was specifically a mark applied to silverware by silversmiths, often in London's East End, and it was the counterfeiting of that mark on "inferior" merchandise (often containing little or no silver at all, let alone with the "authentic" craftsmanship) that led to a criminal offense for "passing off." Enforcement was eventually privatized to the proper "owners" of the respective marks except in the most egregious circumstances (usually those involving evasion of import duties), and after another hundred years or so became an intellectual property right in "modern" trademark law.

    The French courts — without, so far as I can tell, ever making this comparison explicitly (one of the reasons that I rely upon the IPKat for goings-on in France is that the opinions are difficult to access, and not just due to the general language but to inconsistent legalisms) — have considered Renaissance-patronage interpretation of mark "ownership" regarding copyrighted works. A recording company registered marks related to two songs commercialized from a cartoon character. The French Supreme Court has now ruled that the recording company — the patron — had no right to claim ownership of those marks; it is not the "origin" of the related "goods," and therefore its claim of ownership in the marks deceives the public.

    This has some fascinating implications for various publishing and entertainment-industry practices, well outside of the obvious question of "Who gets to be Pink Floyd after Roger Waters leaves?" In no particular order:

    • Is a ghostwritten book that does not disclose the true, natural name of the ghostwriter now a deceptive designation of origin, at least in France?
    • How about a celebrity-coauthored book in which the celebrity — or, more to the point, packager (I'm thinking specifically of you, J___ P___) — provides nothing more than a marketing umbrella, at least in terms of actual expression that remains in the work as published?
    • Do film production companies have a right to claim a mark in character names from previously published novels, as Warner Brothers so blatantly has in the Potterverse (look at the copyright page of any American edition of the fourth and later novels)?
    • What about "house names," like "Franklin W. Dixon" and his "colleagues"?
    • What about publisher-forced pseudonyms for authors with existing track records (and, therefore, discernable "origins" known to the public)?

    These are not easy questions. They are seldom even being asked.

  • Then there's the potential mootness issue (that's just one example) concerning the racist/bigoted "travel ban." I'm a bit disturbed that the mootness analyses generally tend to confine themselves to literal mootness without looking at the most-important exception to mootness: capable of repetition but evading review. This isn't an easy question, either, but it exposes what is really at issue: May the Judicial Branch anticipate the possibility of future bad faith in fleeting actions founded on bad faith in the elected branches, and anticipatorily exercise its checks-and-balances powers on the elected branches by (essentially) stopping the clock? I would argue "yes, particularly when the purported basis is not a policy disagreement but the limits of the political branches' inherent authority," but that's not a popular opinion these days… because it can be made to seem in favor of so-called "judicial activism." Of course, that "activism" is almost always in response to someone else's action, so that's not an accurate label in the first place! And that is the point of the Rule of Law.

29 May 2017

The Last Monday in May

Most Americans think of Memorial Day as the beginning of summer barbecue season, which I suppose is all well and good. Too often they forget that Memorial Day was initially intended to recognize Union veterans. At least the Mayor of New Orleans seems to understand that mere bravery in That Conflict does not justify honoring bravery exerted for dishonorable causes. It's easy to cotton-pick self-aggrandizing (and at times even "honest," if self-deception qualifies as "honest") statements from the 1840s through 1860s that characterize the Second War of American Secession as concerning "state's rights." Of course, it's just as easy to do the same with Rhodesia and the Republic of South Africa in the 1960s through 1980s to characterize their regimes as having a religious foundation, and if we accept the Vatican and Sultanate of Brunei we have to accept that, right?

No. We don't. It has been a century and a half since we amended the Constitution to try to make all persons equal, however much we've screwed up in practice. Mayor Landrieu appears to understand that. Mr Christian — a name with a few historical issues — appears to be too self-centered and confident in his entitlement to even try to do so.

Sometimes it's harder than others to accept — even to understand — what passes for honoring veterans. This Memorial Day I'm adding Mr Meche, Mr Best, and Mr Fletcher to the list of those entitled to that Guinness. "Support and defend the Constitution of the United States against all enemies, foreign and domestic" is what soldiers do (and that "empty chair" has a longer and more intense meaning than civilians really comprehend). And they did.

28 May 2017

Rights Said, Fred

Context matters to meaning. Pretending otherwise leaves one no better off than Fred Korematsu… or Right Said Fred.

The Trump travel restrictions implicate a difficult — and historically ugly — aspect of jurisprudence that our appellate courts (and our Supreme Court in particular) have gotten wrong approximately 80% of the time that they have confronted it. It breaks down into two parts, both of which can create difficult decisions that appellate courts would just rather not deal with.

What part of the nonofficial context of an official action is admissible evidence, preserved for appeal, of the intent behind that action?
How much evidence (of any kind) does it take to overcome the presumption that policies adopted by elected officials were adopted in sufficiently good faith that the courts may reject the policies on rights-based grounds?

The Fourth Circuit's decision Thursday in IPAR just makes this two-step inquiry more obvious than most… if far from explicit. Or clear. Or easy.

There are several sources of this problem. One is that judges (and, more broadly, the legal profession) don't understand — or care — about the distinctions among "fact-gathering process," "fact," and "proof." I realize that's a pretty broad smackdown, and that there are a few exceptions… but it makes a difference even when "fundamental rights" are not directly at issue. The judiciary and the profession have so little personal experience with the process of rigorous fact-gathering that they overly discount lab technique, contaminated samples, poor recordkeeping, confirmation bias, and overt fraud — except, perhaps when some combination of the above rises to a level that would shame a Bond villain, such as overt insertion of religious doctrine into public schools in an overt effort to ensure conformity of thought. But these rare exceptions occur almost entirely at the trial-court level when they do at all. Even when it's excrutiatingly obvious — that there is no possible explanation but for Bondesque villainy — appellate courts just won't go there, such as Santa Fe Ind. Sch. Dist. v. Doe (<SARCASM> it was entirely the kids' decisions, untainted by any parental pressure to conform to majority religious belief in the community </SARCASM>) and darker self-inflicted wounds like Korematsu, Plessy, and Dred Scott.

The inquiry noted above is also one way to understand the late Justice Scalia's disdain for so-called "legislative history." He answered the first question "none" so that he never had to even ask the second question. The nicest thing that I can say about this is that it respects the limits on judicial review too much by presuming not just that elected officials tend to act in good faith and therefore should not be second-guessed, but by presuming that they always do so and therefore are never subject to second-guessing. (Except, that is, when the "elected officials" in question are state prosecutors — the one class of government actors Justice Scalia consistently did subject to substantive review for their good faith.) I reject this view because, thanks in part to that tour as a Protocol Officer, I know too many of Those People: Elected officials, appointed-and-confirmed-by-the-Senate officials, and apparatchiks. Far too many to accept a blind, or even broad, presumption of "good faith without improper pretext." And that's primarily because they're human (most of them, anyway), not just because I agree/disagree with the particular pretexts.

This refusal to examine legislative (or executive) motivation matters to authors and others in the arts in a very direct manner. Consider, for example, the foolishness and invidiousness of 17 U.S.C. § 201(b):

Works Made for Hire.— In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

Now combine this with the definition of WFH found in § 101, and the actual legislative history of this clause. The constitution grants Congress the power to protect authors (Art. I, § 8, cl. 8), but § 201(b) redefines "author" to mean something that no native speaker of English would recognize as an "author": The patron. We recognize "Leonardo da Vinci" instead of "Ludovico Sforza" for good reason. Congress chose to do otherwise — under immense pressure from, well, patrons — but its "good faith" in doing so has remained largely unquestioned.

What these disparate examples demonstrate is that these are hard questions. Unfortunately, since Justice Warren left the bench there has been an increasing tendency for the courts to evade hard questions, usually on the premise that those questions are for the elective branches. Sometimes, though, there really isn't an opportunity to discern elective anything. "True foreigners" were breathtakingly rare in the US of the 1860s more than a mile or two from a seaport or clearly delineated border. Just why, then, does the Fourteenth Amendment's Equal Protection Clause limit itself to United States citizens? It probably has at least somewhat to do with the occupants of this continent who preceded the Northwest Europeans… but one can't discern that from what passed for an official record in the mid-nineteenth century. And that's wrong, but by burying it elsewhere so it's harder to get into evidence, it's not a clear concern.