link to: 11:28 [GMT-6]

Most "premier" universities — and, sadly, for many of its undergraduate programs the University of Illinois probably does not qualify as such — have this little thing called a "letter of recommendation" in each candidate's admissions file, and often more than one; the University of Illinois does not. One might plausibly view the "pressure" being applied as the equivalent. And, for those of you who've been to/currently attend a university (or selective liberal arts college), honestly think about your classmates: You surely knew/know at least one who didn't belong... and I'm not excluding Ivy League schools, with their "legacy admissions" (such as a recent President who didn't get into Yale based on merit!).

This points toward the far-more-serious problem with university admissions: athletic scholarships. The data that has thus far come out from the current contretemps at the University of Illinois indicates that as many as thirteen (13) students benefitted from "political pressure" in the admissions process at a state university² over a period of several years, out of at least 30,000 acceptances (not just candidates). At any Division I school — including the U of I — there are more than that every year just on the bloody football teams. Throw in men's and women's basketball, baseball, etc., and there's a much more significant problem. <SARCASM> Of course, as an undergraduate I went to a Division III school (no athletic scholarships) that did not have a racially offensive mascot for its athletic programs to shame the university as a whole, so what the hell do I know about it (aside from actually participating in sport)? <SARCASM> Don't get me wrong — I enjoy college sports, and I think that in many circumstances they add to the university's value and experience — but the almost complete absence of athletes from the "revenue sports" in premier graduate programs, and particularly those who completed their undergraduate programs in only four years from a premier university, should tell you all you need to know about whether there's undue pressure being applied for admissions. It's even statistically significant among well-run Division III programs at premier universities like Washington University, the University of Chicago, and Johns Hopkins, and premier liberal arts colleges like Macalester, Bryn Mawr, and Swarthmore.

And there are other admissions problems out there that dwarf the problem of state legislators (and other political figures) putting pressure on the overworked admissions staff at the University of Illinois. Consider, for example, the problem of noncomparable GPAs and use of class rank as a proxy, whether we're considering high school or college; the utter failure of the education system to deal effectively with students who are simultaneously gifted and disabled; the continuing prejudice against real-world experience as a component of graduate admissions, let alone getting a job afterward; legacy admissions; paying for a university education once admitted; the absence of tenured faculty from undergraduate classrooms at many colleges and universities because they're spending their time filling out grant applications instead of researching and teaching; I could go on for a while longer, if you'd like.

Finally, consider this: Do you really think that the only state school in this state that has problems with political pressure being applied to influence admission is the University of Illinois? One of this state's medical schools is associated with Southern Illinois University, and I'd be absolutely shocked if there were fewer than thirteen applicants for that program every year who were the subject of "political pressure" of this nature. Similarly, there is no undergraduate nursing (RN) program on the Urbana-Champaign campus of the University of Illinois, so pressure of this nature gets applied elsewhere. And that's just the medical professions!

In the end, though, I'm less shocked to find political pressure influencing admission to any public university than Captain Renault was to find gambling in Rick's saloon. Get over it and look at the whole picture; don't focus on patching the crack in the bedroom's plaster while ignoring the hole in the roof and rotting foundation.

Two last notes: There's a reason that I titled this post with the ideal gas law — no pressure occurs in a vacuum. And I can't imagine any of this taking place under John Cribbet... or at least not once he knew of it; off to the memorial service.

1. It is not at all a coincidence that it's Illinois's right-wing papers that are continuing to "report" this "story" today; the center/moderate papers have moved on to other crises after covering it yesterday, like the inability of the state to pass a budget, the legislative gridlock over increasing the state's income tax from 3% to 4.5%, the collapse of the US auto industry, and North Korea's nuclear program.
2. The less said about "honorary degrees" and selection of commencement speakers on political grounds, the better; the maroon who spoke at my law-school graduation did so, while receiving his honorary Doctor of Laws degree, because he was a politician with substantial clout... and then proceeded to demonstrate, both in the speech and immediately afterward on the job, that he had no concept of the "rule of law."

Labels: culture, life, mass media, politics

link to: 11:49 [GMT-6]

• Professor Tushnet points out something important about the new Star Trek movie: it ignores the difference between individuals and institutions. And, not incidentally, ignores science... but that's another story entirely; or, perhaps, just a story — or at least back story — that should have been in the movie.
• This sausage may cause indigestion. People, that paragon of journalistic excellence (do I really need to use the <SARCASM> </SARCASM> tags?), put the American right's favorite unwed teen mother on the cover for the issue now on newsstands (and supermarkets, where it stared me in the face this evening while I was replenishing our supply of Purina^tm Student Chow With Real Pizza Bits). Of course, the student in question was busy making snide — and accurate — remarks about "family values" and wingnuts.¹ Even reading the first couple of sentences of the article on the People website invokes all the fascination of watching a slow-motion train wreck... narrated breathlessly by Daffy Duck.
• In any event, sitting across the checkout aisle I saw the item on the left. Which, in the end, is merely another segue into a continuation of my diatribe against Tina "She's Not Really Evil, Just Horribly Misguided" Brown and her latest rant and rave on what she thinks is wrong with publishing.

  On one tentacle, Ms Brown isn't exactly the most credible source one could have, as she presided over/caused the twin quality and circulation "crises" at The New Yorker a decade ago and presided over/caused the failure of Talk... and those are both in periodicals anyway, not books, so whether anything she (didn't) learn while "managing" those periodicals applies to books — let alone e-books — is at best open to question. On a second tentacle, her target is an apt one, but not for the reason(s) she thinks: Resale price agreements — functionally what Amazon is doing — are at least questionable under antitrust law.² On a third tentacle, she never actually states what the real conflict is: The continuing struggle over discount rates and how that alters existing publishing contracts... and, in turn, how that alteration relates to the quantity and quality of material provided under those contracts (and, indeed, their very nature).

  Which, in a sad way, leads back to those two magazine covers, which reflect the true difference between mass-market periodicals — at least those making money these days — and e-books for the Kindle: Nobody is going to read the former for their content, but the only reason for the latter to exist is their content. That similar antiquated distribution systems and a legacy of appearing on paper are shared between periodicals and e-books has little to do with their real similarities, just as Barack Obama and Felix Frankfurter aren't all that similar despite their shared presidency of the Harvard Law Review. I continue to be befuddled by "businesspeople"'s efforts to make everything similar...

• All of which leads into an astounding confluence of idiocy: A claim that "evangelical rationalists" are just another religious movement, leading into more illogical blather from Nicholas Kristof alleging that liberals and conservatives have inherently different means of moral reasoning, not just results (even though ignorant reporters who don't understand scientific reasoning might claim that mammals are "hardwired for morality"). To end this astounding display of inept forced similarities and analogies, there's an attempt to model the irrational (in this instance, "love affairs") with differential equations, when even a mathematician should think to invoke Heisenberg's dilemma. Umm, guys — and, in particular, Mr Love Math — have any of you ever heard of a "field boundary condition"? Or, more to the point, "Fourier transform near an asymptote"?
• The Teach for America popularity/controversy actually masks a much more serious question, parallel to the reliance on "Wall Street wizards" over the last couple of decades: Are the purported experts really experts? I strongly question whether the teacher unions, education hierarchy, etc. know a damned thing about dealing with either gifted students or students who are simultaneously gifted and disabled... partially because almost no members of the teaching profession were, themselves, gifted and/or disabled, but primarily because almost none of the leadership in the teaching profession has an education at the college level and beyond that is worth a damn.

  I'd argue that anyone teaching high-school-level subjects to students who might potentially go on to get a bachelor's degree in that subject should, him or herself, have a bachelor's degree in that subject... not a watered-down education degree backed up by little, if any, rigor in the subject area. Those teaching literature need to understand what will be expected of their students in college, and one doesn't get that with a B.A.Ed., and so on down the line. In short, the vast majority of our high school teachers are underqualified for the subjects that they're teaching... which leads to disrespect for academic accomplishment, diminished academic accomplishment, lower horizons for everyone, cats and dogs marrying each other, and just generally chaos. Bluntly, too many teachers were themselves marginal students, at least at the college level, and therefore can't even recognize academic gifts, let alone nurture them.

  Of course, my definition of "marginal student" is probably a bit different than Joe Sixpack (or Joe the Plumber) would acknowledge as having any validity. My hope is that American students can succeed in pushing the boundaries of knowledge and technology because of their educational preparation in public schools — not in spite of it. In short, I'm a nerd; I value nerds; and the jocks, stoners, etc. can have their places... but not at the expense of the nerds.

1. Of course, it's really quite difficult to follow Bristol Palin's career path, as not all that many of us have failed major-party candidates for Vice President of the United States for parents. That should be food for thought, especially in conjunction with the last sausage on today's platter.
2. And, but for a recent misguided Supreme Court opinion that engaged in excessive rhetorical flights of fancy and conclusion-jumping in extending a possible exception to the entire field, per se antitrust violations...

Labels: arts, culture, intellectual property, mass media, miscellany, politics, publishing

link to: 11:21 [GMT-6]

• At least for IP nerds like me (that's right: I'm a civil procedure geek, but an IP nerd), there's a fascinating piece at the IP Financing blawg that asks how much should be spent on anticounterfeiting measures. It's a difficult question that is extremely subject-bound: There isn't a "right" answer, as it obviously depends upon a whole variety of factors. They are factors that the publishing industry isn't paying any attention to, though, so...
• The California Supreme Court's decision in Strauss (this round of the Proposition 8/gay marriage dispute) demonstrates something that is both disturbing and true: Not everything that is stupid, bigoted, and an intrusion of explicitly theological doctrine on government rises to the level of "unconstitutional enough to overturn." I disagree with the soundness of this particular lemma; but then, I've spent enough time studying and in nation-states that do not have a truly independent judiciary to have a far more intensive (and nuanced) appreciation for the countermajoritarian duty of courts than seems common in the American mainstream. I can't, however, criticize that lemma as an inaccurate statement of American law as it descends from stagnans stare decisis — the reification of precedent as (virtually) Holy Writ.
• Except, of course, that sometimes ideology — and ideology alone, without regard to any evidence or logic — results in overturning of precedent... by that supposed paragon of judicial restraint Justice Scalia. In Montejo v. Louisiana No. 07–1529 (PDF) (26 May 2009), Justice Scalia, writing for a 5–4 majority, overturned a 20-year-old precedent on the ground that

  We do not think that stare decisis requires us to expand significantly the holding of a prior decision — fundamentally revising its theoretical basis in the process — in order to cure its practical deficiencies. To the contrary, the fact that a decision has proved "unworkable" is a traditional ground for overruling it.

  (slip op. at 13; citation to inapposite opinion omitted). As the dissent points out, though, "the evidence is overwhelming that Jackson's simple, bright-line rule has done more to advance effective law enforcement than to undermine it." (slip op. at 8). Indeed, how is a bright-line test of this nature logically within the realm of "difficult-to-apply" or otherwise impracticable? No, the problem is that the temptation to continue interrogation is difficult to resist; once upon a time, so was the temptation to lynch civil-rights workers.

  I think what Justice Scalia understands stare decisis to mean is that one must absolutely respect precedent that is "right"... but that precedent that is "wrong" or "goes too far" is subject to constant revision and even rejection. Would someone please explain to me how this is not "judicial activism"?

• In the meantime, though, Iqbal is going to come back to bite everyone who practices civil litigation in which "intent" ever becomes an issue. This gets off into civil-procedure-geek territory very quickly, so I'll just outline the problem here, and mention a couple of implications.

  Ashcroft v. Iqbal, No. 07–1015 (PDF) (18 May 2009), concerned lawsuits filed by post-9/11 detainees who were taken into custody in the US and wished redress for the manner, means, and conditions of their confinement. Justice Kennedy took the opportunity of this hard case to make bad law on both the substance... and the procedure. Ignoring seventy years of practice and the text of the Federal Rules of Civil Procedure themselves, Justice Kennedy imposes an irrational heightened pleading standard on plaintiffs whose complaints implicate any question of the intent of a federal official:

  It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks [on September 11, 2001] would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims. On the facts respon­dent alleges the arrests Mueller oversaw were likely law­ful and justified by his nondiscriminatory intent to detain aliens who were illegally present in the United States and who had potential connections to those who committed terrorist acts.

  (slip op. at 18). The logic problem with rejecting as sufficient allegations that FBI Director Mueller and Attorney General Ashcroft's conduct was discriminatory, though, is that the underlying cause of action does not require proof of intent: Discrimination by government officials on racial, ethnic, religious, gender, and/or national origin grounds is unlawful. Period. That there may also have been a "justification" available for the discrimination goes properly to the question of remedy — not to liability. This is where Justice Kennedy goes so very wrong, because the decision he relies upon — Twombly — concerned conduct that by definition leads to liability only when it is intentional: conspiracy to commit antitrust violations. And even then, under the heightened pleading standards for fraud provided by Fed. R. Civ. P. 9(b), "Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally" (in English, one is allowed to merely plead the legal conclusion that an act actually committed was knowing and/or intended).

  The only logic behind Justice Kennedy's application of a heightened pleading standard is the longstanding refusal to extend "implied rights of action" such as this one to personal actions against supervisors merely because they were supervisors (slip op. at 11–13). That, however, is not what was at issue in this matter, despite the attempts to so characterize the complaint (which I have read). And here, a plea for some logical consistency in the way opinions get presented: When one is assessing whether a complaint (or other pleading, such as a counterclaim) makes sufficient "factual" allegations or is merely "conclusory," one should quote the material being examined — not just spout forth conclusory summaries of what is allegedly conclusory. The allegedly deficient pleadings are only a few pages long in typescript, and would not be out of place as an appendix to this opinion.

  Ultimately, this is going to prove a considerable problem in the next few years as plaintiffs try to plead undue influence, intentional infringement of IP rights, and other aspects of matters that would otherwise go to the remedy, not to core liability. Iqbal improperly moves such matters from "notice pleading" under Fed. R. Civ. P. 8 to "quasi-fact pleading" under Fed. R. Civ. P. 9(b), by making any question of intent one that must be plead "with particularity" — and that's awfully hard to do as to a corporate or government actor, let alone when suing John Does because one doesn't know exactly what persons in an organization personally did particular things! I've come to expect this kind of shortsightedness (and allegiance to holding the center on substance through use of dubious procedural mechanics) when Justice Kennedy veers into civil procedure; I'm disappointed that he fully met my expectations in Iqbal.

Labels: intellectual property, jurisprudence, miscellany, politics, publishing

link to: 08:11 [GMT-6]

• RIP Professor/Dean/Chancellor Cribbet. Although the Cribbet & Johnson property casebook is not considered the most "rigorous," in many senses it is: It pays attention to language, time, and context in a way that its competitors don't, and it provides a solid foundation for learning more about property law. Not to mention that Professor Cribbet was a great guy, excellent teacher, and good administrator.
• If this story is accurate, President Obama plans to elevate Judge Sotomayor to the Supreme Court, and will announce that in about an hour. (I'll update later today, including comments on other Supreme Court activity, which will also be in about an hour.) This is not a good thing for authors and creative people: Judge Sotomayor's track record is very pro-licensee on intellectual property, specifically including screwing up the Tasini matter both substantively and procedurally when she was a trial-court judge at the Southern District of New York. Admittedly, she's had a lot of help from dubious lawyering in front of her, but that won't change all that much at the Supreme Court...

  I suppose that beats worrying about what's on the walls at the White House. I'd be just fine with "cowboy art" and falsely idyllic views of the American West... in somebody else's house. But selecting works for who created them, instead of on their own merits, is a losing game for everyone; and, sadly, that feeds right back into the preceding paragraph, which is essentially forced by the political gamesmanship that goes into selecting judges.

• I'm not going to comment much — if at all — on the opinion on the gay marriage issue that the California Supreme Court is scheduled to release later today. The whole situation is a procedural mess caused by a combination of excessive intrusion of religious belief into civil affairs, an inept means of amending the California state Constitution, a nearly ossified court system in the state, and failure to take courts' countermajoritarian mission seriously (too often by calling it "activist"). There's no win there for anyone.
• Robert McCrum muses on shortlists for literary prizes and what they mean for "categorizing" fiction and misses the point entirely (which is not all that surprising, given the source). Taxonomy is not about making distinctions; taxonomy is about exploring relationships.
• Meanwhile, also across the Pond, The Bookseller lists its perceived "100 most powerful/influential/ people in UK publishing" — alphabetically, so it's difficult to see exactly where the eight authors and single editor fall on the "list"... which is particularly disturbing compared to the number of s&m dorks and bookstore owners appearing on it.
• YAMOTIE (Yet Another Music-on-the-Internet Essay).

Labels: arts, internet, law practice, mass media, miscellany, politics, publishing

link to: 00:30 [GMT-6]

• The vegetarian intended for our holiday-weekend vegetarian barbecue crawled out of the marinade. We'll just have to substitute lamb for beef (both are vegetarians... usually, anyway; ok, it was a really bad movie, but you get the point). On the other hand, we had a good laugh at the library while passing the new books shelves; I nudged the elder remora and told him that "The Complete Vegetarian is a cookbook." Just like To Serve Man...
• Cottonseed oil. In peanut butter. It's bad enough that cottonseed oil is toxic before refining (toxic enough that unrefined cottonseed oil is a moderately effective pesticide that also contains a lot of pesticide residue), that it's a major irritant for anyone with a skin condition (whether chronic or just sunburn) or who is subject to migraines, and that it's really not that much cheaper than anything else. But drawing peanut oil off from peanuts being processed into peanut butter and replacing it with cottonseed oil? That seems quite extreme... and so does using it in essential nutrients for law-enforcement professionals.
• Note to the local newspaper: You don't have to boast about the region's melanin deficiency. This is East Central Redneckistan: We already know that your idea of "news" is neofascist wingnuttery, that this region as a whole doesn't reflect much about national demographics (although the two cities in which you're based come a lot closer... which is not reflected in that story, is it?), and that you'd rather deny all recognition and voting status to anyone who doesn't fit your preconceived notions of 'murikanism. Maybe I should stop referring to your insult to dead trees (and your online insult to dead dinosaurs and ferns) as the News-Kazoo and call you the Nazi-Zeitung instead.
• Keeping local, what's Wolfram Alpha good for? Clearly not much in the biological sciences.
• And, speaking of local annoyances, what's up with the sudden glut of suburban assault vehicles (carrying only the driver) speeding in parking lots to get to a handicapped parking space? If it requires a stepladder to get into the driver's seat, is it really an appropriate vehicle for that?

Labels: culture, internet, life, miscellany, politics

link to: 14:03 [GMT-6]

• An interesting article discloses some practical flaws in long-tail theory. That leaves aside the obvious mathematical flaws in the long-tail theory... such as its disdain for data, its ignorance of field conditions and boundaries, and its neglect of stochastic reality.
• Star Trek is only five years away (just like when IBM announced it over a half-century ago): activate the universal translator. Of course, "translation" is a lot more than vocabulary and syntax.
• Suprise! Torture is torture! In the spirit of this entry's title: "Mancow, you ignorant slut!"
• Homework for writers: What actually happens after a "nuclear event"? It's a lot of talking heads (who actually know what they're talking about) and video presentations... but worth one's time.

Labels: intellectual property, internet, mass media, military, miscellany, politics, science

link to: 11:32 [GMT-6]

• Don't try this one at home: ER doctor saves patient with standard household drill... under telephone guidance from a neurosurgeon.
• GBS "news": Google agrees to give some libraries that provide books for scanning a say on price. Noticeably absent: Any consideration whatsoever of the provenance of the copies to be scanned.
• J.D. Salinger's lawyers are considering whether to sue over the continued existential angst generated by a "sequel" to that book not explicitly authorized by Salinger. Which raises a question that goes to the heart of Justice Souter's misguided parody/satire distinction in 2Live Crew: Does a work that is a virtual self-parody — not to mention invites further parody — have any greater or lesser protection from satire, or on fair use? Not having read the sequel, I'm not in a position to suggest an answer on these facts... but, in principle, if one accepts the parody/satire distinction at all (let alone as incorrectly/indefensibly stated in 2Live Crew), a self-parodying work necessarily must accept a greater risk of ridicule as fair use.
• Now that the Kindle provides access to blogs, some bloggers are finally objecting. It's sadly amusing to see this kind of post hoc reasoning being used to cover the substance of the dispute... if, that is, it rises to the level of a "dispute" in the first place, and not just horse-has-left-the-burning-barn posturing. Meanwhile, nobody is saying the "a" word ("antitrust", as the proposed license constitutes price-fixing per se), or connecting this to the Google Library Project.
• Thank Cthulhu A___ I___ is over for the year now! Just as the popularity of a book is only minimally related to its cover design (unless it's really, really bad), the popularity of a musical act is only minimally related to its... cover. There's a helluva lot more that goes into popularity — let alone quality or sustainability — than the untrained, barely rehearsed, one-off performance of a lead singer not allowed to choose a coherent set of material. If nothing else, there's always the band to consider! Frankly, one has a better shot at finding great performances at a karaoke bar (remember "Bad, Bad Leroy Brown” from Sneakers?).
• Snurched from Neil Gaiman: It appears that Iowa is not as uniformly progressive as the gay marriage decree from its state Supreme Court implies, as a manga collector has pleaded guilty to "possessing obscene visual representations of the sexual abuse of children and mailing obscene material". Meanwhile, GITMO appears on the news, and some of the inmates there are children.
• Rick Reilly — an always entertaining writer — makes a start on reforming baseball to be a real sport. I particularly like point 9, although I think most toe lint would be insulted by the comparison. It could be worse, though: It could be cricket.
• Sometimes, even the WSJ — which is notoriously obtuse (at best) on military affairs — gets something right, such as publishing this opinion piece advocating an end to "Don't Ask, Don't Tell". My own position — with the better part of a decade of command experience — is quite a bit snarkier: When the military successfully deals with its persistent problems involving nonconsensual heterosexual behaviors and bigotry, it will be in a position to begin considering how to deal with consensual homosexual behaviors... and the less said about nonbehavioral “preferences” the better.

Labels: arts, censorship, copyright, intellectual property, mass media, military, miscellany, politics, science

link to: 11:30 [GMT-6]

• Sublieutenant Ogilvy is as alive as ever and living near Kaluga. Ironic that post-Stalinist Russia is adopting Stalinist Soviet tactics satirized by Orwell...
• I'm not sure which is more disturbing: The Poz's new book on the financial crisis that rejects a pure-market, laissez-faire solution for everything... or Jonathan Rauch's misguided, Anglo-American-centric review.
• Would you like to play a nice game of global thermonuclear war?
• I'm saving my ire about yesterday's Supreme Court actions (and inactions — see the next paragraph) for further consideration. The key point is that the closer of the two opinions released — Iqbal — is at best dubious on both the substance of the opinion and (as is all too typical when Justice Kennedy attempts to hold the center) several aspects of civil procedure. Remember, Justice Kennedy, the decision not to take sides is, itself, a decision.

  Noted without comment: Supreme Court rejects challenge to cutting off authors' heirs' termination rights.

• A dispute from Sweden illustrates why writers need wills.
• "Reforming" the arts by paying performers/creators less isn't a new business model, as anyone who has dealt with the publishing industry over the last thirty years (and compared median — not outlier — compensation for authors on an inflation-adjusted basis) could attest. Then, on another tentacle, consider Radiohead v. Mothra.
• More "woe is me" in Hollyweed: DVD sales are down — at least in part because they're largely releasing worse crap than usual on DVDs this year. That said:

  The problem is that studios have invested years in obfuscating their DVD profits, fearful that A-list actors and filmmakers would get wind of how much money was pouring in and want a bigger piece of the action. By Sunday, everyone knows what movies made in theaters — it's a carefully monitored cash business.

  DVD has little of that transparency, especially with some DVDs being rentals while others are sell-through purchases, making the numbers more difficult to quantify. When studios announce their opening-day DVD numbers, they aren't actual sales figures — the numbers represent the amount of DVDs shipped to stores. The DVDs that don't sell get shipped back to the studio. The industry abounds with stories of studios who have warehouses full to the ceiling with DVDs that went unsold and were shipped back, left to rot in storage.

  That sounds an awful lot like the publishing industry...

• Category (sometimes) matters; denialism doesn't. It's really not very far from "it's a good book, so it can't be science fiction" to "he/she's brilliant, so he/she can't be [insert favorite 'inferior' ethnicity here]."
• Some thoughts on best practices in fair use. I'm still chewing my way through the source documents, but thus far my disagreements have been at the detail level... and I don't claim infallibility.
• The copyright registration backlog is growing in the face of the new electronic system. Maybe the solution is to scrap registration in the first place and pretermit Muchnick.

Labels: arts, copyright, intellectual property, jurisprudence, miscellany, politics, publishing

link to: 15:54 [GMT-6]

There's a longrunning dispute over the name and logo of the Washington Redskins, including several back-and-forth trips between the US District Court for the District of Columbia and the US Court of Appeals for the District of Columbia. This has resulted in reaffirmation of the name "Redskins" as not unlawful (not at all the same thing as "good idea"), and — of interest today — denial of claims requiring cancellation of the logo. Today's Court of Appeals opinion describes the situation thus:

At bottom, this case concerns whether various trademarks related to the Washington Redskins football team disparage Native Americans within the meaning of the Lanham Trademark Act. But that question has since been overshadowed by the defense of laches, the basis on which the district court first entered judgment for the Redskins six years ago. We reversed that decision, finding that the district court had misapplied the law of laches to the particular facts of the case. On remand, the district court reconsidered the evidence in light of our instructions and again ruled for the team. Now appealing that decision, plaintiffs argue only that the district court improperly assessed evidence of prejudice in applying laches to the facts at issue. Limited to that question, we see no error and affirm.

Pro Football, Inc. v. Harjo, No. 03–7162 (D.C. Cir., 15 May 2009) (PDF), slip op. at 2 (Tatel, J.) (citations omitted).

Of course Judge Tatel could "see no error": He's legally blind. (Sarcastic remarks about "race-blindness" are encouraged.) But this is not a question of fact; it is, instead, a legal question not requiring any familiarity with the trademark/logo at issue, and Judge Tatel has one of the most-nuanced records on the arcana of civil procedure of any federal appellate judge.

Labels: civil rights, intellectual property, jurisprudence, law practice

link to: 10:44 [GMT-6]

• "News" that Amazon wants to be a publisher, starting with "reprinting" self-published books... that is, the most-desperate market of authors least likely (and able) to negotiate terms. Combine this with some disturbing news out of Penguin USA about quasi-in-house authors (unfortunately, the sausages available for linking on this one appear to be undercured and full of rat hairs) and contrast the whole mess with General Varney's repudiation of Bush administration antitrust guidelines that would have insulated these efforts from review, and one gets the feeling that either the publishing industry thinks that its purported unprofitability means nobody will ever scrutinize it for antitrust problems, or that the publishing industry somehow thinks it's exempt. Or, perhaps, both... it wouldn't be the first time that arrogance of that nature had led to such problems in the distributed-IP segment of the economy (PDF).

  All intellectual property is, fundamentally, a state-sanctioned monopoly. What the IP-distribution industries too often forget is that the creators — not the middlecreatures — have constitutional imprimatur for that monopoly.

• Neil Gaiman politely, and accurately, tells overenthusiastic fen impatient for the next Song of Fire and Ice novel that George R.R. Martin is not your bitch. It's parallel to the difference between the generic presliced "white bread" in the white plastic bag (with the multicolored dots) found in too many stores across the nation and a decent crusty (but not fetishly so) loaf of whole-grain bread, possibly baked up from a biga or poolish. One of these options is available right now, cheap, and is good for making PB&Js with the crust cut off... and not much else (one can't even make decent toast from it); the other can be the centerpiece of a meal. A Song of Fire and Ice is not intended for PB&Js.
• Professor Tushnet notes a fascinating case involving implied endorsement. At least, I find it fascinating! "Famous" authors beware, because most people wouldn't recognize you... even your biggest fans.
• A long post worth pondering from Professor Goldman tries to tear apart a Ninth Circuit opinion on the § 230 defense (in its most basic form, an ISP is not liable for what its customers say). It's certainly worth pondering, and points out the main problem with the way § 230 was conceived and constructed: That there aren't any bright lines on the 'net.
• An academic at Columbia has some interesting — in the good sense of the word — thoughts on reinvigorating ROTC, but doesn't look at the other half of the equation. So long as academy graduates have advantages at promotion time provided solely by that class ring, ROTC officers are going to be second-class citizens within the officer corps... and will know it (Colin Powell notwithstanding). Further, nobody is really asking the hard question about whether the academies continue to serve a purpose that is not better served by having officer candidates mix with others who do not share the same backgrounds and goals.

  Secretary Gates seems more than willing to look at force structure and a lot of hardware acquisition problems, but not at the acquisition process for the most critical military weapons system of all: The people in charge. If you really want some empirical evidence of the problem, consider the "unsatisfactory performance termination" rate of academy-graduate flag officers in Southwest Asia since 9/11 with that for ROTC flag officers. It proves nothing, if only because the data samples are so small and the actual reasons for termination are seldom apparent to those without extensive experience in the military personnel system. However, the rates are sufficiently different that one cannot reject the null hypothesis (that there isn't a difference between the two commissioning sources once the officers reach flag rank) at any level of confidence — indicating that the matter deserves further examination.

Labels: arts, censorship, civil rights, copyright, intellectual property, internet, mass media, military, miscellany, publishing

link to: 10:57 [GMT-6]

• In the "when not to call a joker the ace of spades" department, Writer Beware and Lee Goldberg have an unplanned dialogue on efforts to make vanity publishing, and to a lesser extent self-publishing, sound more respectable. Victoria Strauss starts things off musing about "independent" as a new label for publishers that aren't commercial publishers, and for authors who aren't being commercially published. Goldberg points his crowd toward that discussion and follows up with some useful commentary on when one should consider self-publishing.

  The bottom line is fairly simple: If you've noticed that nobody sells used cars anymore — just pre-owned, pre-driven, off-lease, or recertified — you already understand the game being played by vanity "publishing services" (and here's an objective way to know if it's a vanity press that is not subject to either advertising or contracting games).

• Then there's non-trivial nitpickery that is accurate as far as it goes... but neglects to note that the initial article wasn't about publishing lice (or cooties), but about publishing melanomas. It's sort of sad, actually, to see such hearty miscommunication on a topic that deserves better. Primarily, the topic of "what ails publishing" deserves better data, not better punditry and one-size-fits-all prescriptions; but far be it from me — as a sometime publishing "pundit"¹ — to criticize the very nature of and basis for punditry and prescriptive rants. As Judge Kozinski said, "The parties are advised to chill." Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 908 (9th Cir. 2002).
• Robert McCrum spouts forth on the purported genesis of 1984. I suppose that it's possible that McCrum has gotten access to primary materials first made available since I was working on Orwell, but his account looks much more like a couple of notoriously polemical secondary-source accounts than what shows up in Orwell's own letters of the mid-1980s (for one thing, the sequence of events in title selection is... different). That said, it's a useful article — or, at least, it will be if it gets people to go back and read the book, and more importantly read it together with Animal Farm (the first book of the uncompleted trilogy, of which 1984 is the second).
• The LA Times has a piece on Hulu, and what it might mean for TV stations and networks.

  Hulu illustrates the quandary that media executives face as they weigh the potential of the Internet against their dependable, old-line businesses. If the television industry does not find a way to preserve its two pillars of revenue — advertising and subscription fees — the consequences could be dire.

  I can't think of a more-deserving group of short-sighted, ignorant, arrogant assholes who need the experience of worrying about their futures in this economy and era of technological change (and that's up against some pretty stiff competition, such as "politicians"). Not content with sucking the life out of the people who actually create their shoddy products (and inventing an accounting system that "proves" that nothing is ever profitable), now they're whingeing about somebody else preventing them from getting blood from a turnip. Schade. These are, after all, the people who cancelled Firefly but then picked up Prison Break, American [False] Idol, Til Death, and Cops... and that's just one network! (That's not to say that Firefly had no flaws — only that it was objectively and substantially superior to each of the other items listed, and actually less expensive to produce than half of them.)

  Hey, here's an idea: How about affordable a la carte cable TV channel lineups, for which each consumer can choose his/her own package? It's not like the technology doesn't already exist to make it a one-time matter of about $1.50 in employee time! Even better, how about the ability to subscribe to, say, a given six-hour block of a given channel, one day a week? Oops, there's that "pillars of revenue" model in the way again...

  Sometimes I really miss paying the TV license fee in the UK. Plenty of whingeing still goes on, but at least it's not from idiots on expense accounts interviewed during their £100 lunches about their ability to survive tough economic times.

• The International Herald-Tribune — I suppose I should now say New York Times Global Edition — has an interesting, if shallow, article on Secretary Gates's force-structure initiatives. The shallowness is, naturally enough, critical to understanding both why Gates is simultaneously right and wrong and why his proposals are so vehemently opposed. Bluntly, the biggest problem that the US military has had since the beginning of Reagan's second term has been a blithe insistance on upgrading its weapons systems at the expense of maintaining — let alone upgrading — its logistics. Modern warfare is about logistics: Getting the right forces to the battlefield, with the right intelligence and orders, keeping them supplied, and getting them out when necessary. We're smart enough to see this when we plan operations (such as the air assault on infrastructure during Gulf War I that did far more to force surrender of Iraqi forces than did the admittedly devastating bombardment of combat elements), but not when we're building our own forces.

  It's not that we need more light armored vehicles than heavy tanks; those are both combat units. It's that we're desperately behind in replacing our aging aerial-refueling fleet, and in adapting vehicles for combat supply missions, and (as pointed out in the article, although without adequate context) medical evacuation capability. Simultaneously, I'd really like to see the military experience and expertise of the "keep my district's expensive combat-systems contracts alive or I'll make you sorry!" senators and congresscreatures brought out into view; it would be a pretty short article...

  Meanwhile, the military tries to simulate hacker attacks with wargames at the academies... which, of course, is precisely the wrong environment for developing the skills and mindset to deal with real information attacks. (One of the things that Gates should be reviewing is the continuing need for military academies, which do a decent job of teaching how to fight the last war and a crappy job of teaching how to fight the current one or lead soldiers who do not share the academy background.) The best hacker attack on a military system, of course, will be subtle, and will be part of a relatively coordinated system of distractors and brute-force methods that tie up defensive resources. Hmm, that sounds just like Liddell Hart's theory of the indirect approach, doesn't it?

1. See Fed. R. Evid. 702.

Labels: intellectual property, internet, mass media, military, miscellany, politics, publishing

link to: 13:51 [GMT-6]

The Settlement (in essay form)
The Lawsuit (in essay form)

One of the major problems with the Google Library Project settlement is buried in the field definition: It is limited to books for which there is a valid, and renewed, copyright registration. This limitation comes from a long, misguided series of opinions — largely from the Second Circuit, and adopted without all that much independent analysis elsewhere — holding that § 411(a) of the Copyright Act of 1976 is a jurisdictional gatekeeper; that is, the certificate of registration is the sine qua non of federal jurisdiction over copyright claims.

This is clearly wrong, but understanding why requires both reading the whole statute and having some understanding of what subject-matter jurisdiction really is. It is, instead, a historical-continuity argument, because it continues the jurisprudence of what was properly before a court under the 1909 Act. I have always been under the apparently mistaken impression that one looks at the statute that applies now first.¹³ Instead, this line of cases from the Second Circuit — stretching back to the 1940s and an incoherent set of both district and appellate decisions regarding photographs, during the period when ownership of the master negative was considered ownership of the copyright itself — actually relies upon the appellate courts' collective merging of the certificate of registration and the copyright itself under the 1909 Act.

As I've mentioned before, this matters to the GLP settlement: A court cannot enforce a settlement over which it has no jurisdiction, but can enforce a settlement for incomplete claims over which it does/would have jurisdiction. Justice Thomas's unanimous decision for the Court earlier this week in Carlsbad Technology, Inc. v. HIF Bio, Inc., 556 U.S. ___ (04 May 2009) comes at this particular question rather sideways, but nonetheless instructively... because it implies that the Court is well along the path of not calling a statutory requirement "jurisdictional" unless the statute explicitly says it's jurisdictional.¹⁴ Although this does represent a slight retreat from the purportedly federalism-respecting trend of the early and middle Rehnquist Court, keep in mind that most of those decisions revolved around a subset of federal jurisdiction: State immunity.¹⁵

Although there is little doubt that the jurisdictional interpretation of § 411(a) represents the accepted wisdom, it does not represent a clear paradigm distinct from "that's the way it's always been". (It is well beyond the scope of this forum, but that is a valid criticism of much of the Second Circuit's copyright jurisprudence since adoption of the 1976 Act: That the past is to be followed, even in the face of both legislative and treaty changes since.) That jurisdictional interpretation is a fatal defect in the GLP settlement, which fails on procedure, on substance, and on simple fairness. Carlsbad Technology makes clear that "accepted wisdom" is not good enough for this Supreme Court on defining the jurisdiction of the courts... because the accepted wisdom (at least in the Second and Ninth Circuits, where a disproportionate amount of copyright litigation occurs) was that a remand of nondiverse state-law claims once all federal-question and diverse state-law claims had been dismissed (or otherwise resolved) was a "jurisdictional" decision insulated from appellate review (for reasons that we don't need to go into here).¹⁶ Carlsbad Technology, however, holds that it is an exercise of judicial discretion and not a question of jurisdiction per se.

So, then, what do all of those technicalities mean for the GLP settlement, given the grant of certiorari in Muchnick (the Post-Tasini parallel case on periodicals) to decide whether § 411(a) is jurisdictional? First, there's the timing issue. Since it is known to the judge — or, at minimum, known to all counsel who represent parties to the matter, who in turn have an ethical obligation to inform the judge — that the Supreme Court intends to rule by a date (relatively) certain on a critical limitation in the definition of the field for the GLP settlement, it would border on an abuse of discretion to continue proceedings that depend upon the Supreme Court ruling a certain way.

Second, there's the substantive question of how this matters to the settlement itself... which, as I've indicated previously, is not nearly clear enough to justify certifying any class, let alone an opt-out class with the inadequate notice being provided. It also brings in the spectre of cross-claims between members of the respective classes when a publisher did not register a work that was scanned; despite the three hundred pages of obfuscation in the settlement documents, there is no consideration of this problem whatsoever, even though it is clearly implied by Morris (the decision that "justifies" the restriction to registered works), and for that matter Tasini itself.

Third, we need to preemptively ignore anything that the Register of Copyrights has to say on the matter. This is a matter of institutional conflict of interest: The Copyright Office's main income source is registration and other service fees it charges, and this financial interest in encouraging a formality that is at minimum in tension with US treaty obligations under the Berne Convention should at least give one pause when considering the Register's position. (That the Register has, since the mid-1950s "studies" supporting changes to copyright law that would eventually become the basis for the 1976 Act, virtually always acted consistent with that financial interest should not surprise anyone.) I have no doubt at all that the Register's position in front of the Supreme Court will/would be that § 411(a) is jurisdictional; Ms Peters and her staff have made that all too clear in past presentations, including amicus briefs to other courts. Ms Peters and her staff may well honestly believe that interpretation correct, but rejecting the views of a captured agency does not require imputing knowledge or bad faith.

Fourth, and last for now, we need to start by interpreting what § 411(a) says without relying on tradition, instead of the other way around. Reading the actual language at issue — and comparing it to § 301 — calls the intellectual basis of the GLP field definition into severe doubt, and therefore the viability of the entire settlement... if only because none of the proposed representatives has interests typical of or in common with authors whose books were not registered (for whatever reason).

12. This is a common explanation:

    Federal courts treat registration as a rigid jurisdictional prerequisite — even when the defendant's fault is otherwise incontestable. Defendants' conduct in reproducing the Articles, verbatim or nearly verbatim, is both abject and reprehensible. Nevertheless, plaintiff has failed to protect her own rights because she failed to obtain valid copyright registrations in the Articles. Although Morris had the foresight to contractually protect her ability to exploit her work for profit, she neglected to protect her ability to prevent others from doing the same. Because plaintiff has failed to show a genuine issue of material fact for trial, defendants' motion for summary judgment is granted with respect to her first claim for copyright infringement.

    Morris v. Business Concepts, Inc., 54 U.S.P.Q.2d 1561, 1563 (S.D.N.Y. 2000), aff'd, 259 F.3d 65 (2d. Cir.), later op., 283 F.3d 502 (2d Cir. 2001). But cf. Arbaugh v. Y&H Corp., 546 U.S. 500 (2006) (number of employees is a substantive element of the claim, not a jurisdictional prerequisite); Carlsbad Technology, Inc. v. HIF Bio, Inc., 556 U.S. ___ (04 May 2009) (a district court’s order remanding a case to state court after declining to exercise supplemental jurisdiction over state-law claims under 28 U.S.C. § 1367(c) is not a remand for lack of subject-matter jurisdiction).

13. This is far from the only similar problem in copyright law. For example, consider the problem of the parody/satire/fair use morass created by the Ninth Circuit's continued reliance on Air Pirates as good law... even though Air Pirates itself says that it's based in the 1909 Act, when fair use was a judge-made doctrine and not codified as it is now in § 107 of the 1976 Act, and that the Supreme Court had not yet explicitly held parody (for some meaning of "parody") as potential fair use in 2Live Crew. Cf. C.E. Petit, Cost Allocation and Copyright Orphans at notes 38–42 and accompanying text.
14. I can almost hear the whingeing now that Congress can't be expected to predict that the word "jurisdiction" is a magic one that must be included in any provision regarding jurisdiction. That argument ignores that Congress knew how to do precisely that in taking jurisdiction over copyright actions away from the state courts when it drafted the 1976 Act. See 17 U.S.C. § 301, 28 U.S.C. § 1338(a). These are not only proof of institutional competence... they were drafted at the same time, and in one instance in the same part of the same bill, as 17 U.S.C. § 411.
15. Which, in the GLP settlement, leads civil procedure geeks — like me — into the interesting, if hypertechnical, side issue of whether scanning at the University of Michigan libraries was somehow exempt from challenge... if, that is, the University of Michigan is an "arm of the state" of Michigan, a question left unanswered by the desegregation cases because they fall under the Fourteenth Amendment, not the Eleventh Amendment, for determining jurisdiction.
16. I'd like to think I know a little bit about this, as I've been grappling with it since a few days after I took the bar exam. Channell v. Citicorp National Services, Inc., 89 F.3d 379 (7th Cir.1996) (the one time I've won anything in front of Judge Easterbrook...). The Second Circuit is still sidling up to this question. Itar-Tass Russian News Agency v. Russian Kurier, Inc., 140 F.3d 442, 445–47 (2d Cir.1998) (explicitly distinguishing its jurisprudence from the Seventh Circuit's). Ironically, at least three judges on the Second Circuit can sometimes recognize when a statutory change "has displaced, rather than codified, whatever validity inhered in the earlier view." Jones v. Ford Motor Credit Co., 358 F.3d 205, 208 (2004).

Labels: arts, copyright, intellectual property, internet, jurisprudence, publishing

link to: 13:48 [GMT-6]

The chum is in the water for potential successors to Justice Souter. I'm not all that thrilled with the publicly mooted candidates thus far, because I think they're largely missing the point: The Court has some severe holes in its base of expertise that, in a period of increasingly rapid contextual change, have already resulted in some bad decisions. In no particular order:

• No sitting Justice, nor indeed any of the leading contenders, has a satisfactory background in mathematics or the basic sciences. I'm not demanding a cutting-edge researcher — just someone with at least a minor in physics, chemistry, or biology, and math beyond first-year calculus.
• None of the mooted candidates are well known for the thoughtfulness of their writings (opinions or otherwise) on civil procedure.
• Only one of the mooted candidates has much background at all in intellectual property... and hers is much, much less than satisfactory.
• None of the mooted candidates has any adult life experience not shaped by a career in law. Even a couple of years in the Peace Corps would be better than what we're being thrown! Of course, part of that is the Harvard/Yale effect (on which I'll rant, at length, another time), combined with the silliness of post-law-school hiring practices.

I am not encouraged. I didn't really expect to be, but it's frustrating to see my expectations met.

   Then there's the ongoing shell game involving who is "entitled" to what financial capital. I really wish that commentators on the banking mess, and on the budget, and on just about everything else related to the economy, would get beyond basic microeconomics and consider — just for a moment — basic macroeconomics. I don't expect that to happen any time soon, though. Even if it does, the only macroeconomics most of the maroons trusted by the media moguls as "commentators" understand is the increasingly discredited neo-Chicago school... which has, as its foundational assumption, a zero-arbitrage economy. (Look at the math; it's not that hard to see.)

Labels: culture, intellectual property, jurisprudence, politics

link to: 16:53 [GMT-6]

Labels: arts, internet, mass media

link to: 10:15 [GMT-6]

• An extremely important opinion implicating both In re Electronic Database Litigation (which I've referred to as Post-Tasini and is currently better known as Muchnick) and the Google Book Search settlement came out about an hour ago. Writing for a unanimous Supreme Court in Carlsbad Technology, Inc. v. HIF Bio, Inc., No. 07–1437, Justice Thomas held that a statutory provision regarding pendant claims is not jurisdictional, but at the judge's discretion. This is important because the language he cites as nonjurisdictional is quite similar to the language of 17 U.S.C. § 411(a)... which would definitely torpedo the restriction of the settlement classes to only registered copyrights.
• Continuing on that general topic, German authors speak against the GBS (and UK booksellers are also against it).
• A religion professor proposes reforming the university and assumes — wrongly, as anyone who actually engages with science and engineering faculty knows — that the problems he sees in the humanities with unemployability of doctoral students extends across the university to the same extent. Further, it assumes that taking away the admitted overspecialization will still allow faculty members to develop the specialized knowledge necessary for his proposal! One would have hoped for better logic from someone whose department is ordinarily so closely allied to the philosophy department... where one of the specialties is logic.
• The "two cultures" meme is now eligible for AARP membership, and it's just as oversimplified and poorly analyzed now as it was then. To start with, it's a two-step distinction, not a one-step distinction: It's not "science" v. "everyone else," but it's "math" and "replicability" and "human language" in an ugly unrefereed brawl that makes a WWE tag-team event look well-structured. Second, it's not about the subjects at all; it's about how people who are not in those communities view, and communicate about, the people who are. For example, there is no fundamental fight between Chemistry and Literature — just between MBAs who really understand neither field when it comes time to structure educational funds or free-enterprise zones.
• What will be the fate of fiction in this recession, and does it have anything to do with the future of bookselling?
• The neofascisti Glenn Beck has signed a supposedly "better" book deal that a WSJ columnist touts as a model to be followed. Unfortunately, Mr Trachtenberg clearly doesn't understand his subject. If we really wanted to "reform" the publishing relationship to make it work in today's legal and economic environment, we'd start by explicitly making it a licensing agreement without any of the boilerplate language and assumptions inherited from the 1909 Copyright Act and 1898 Bankruptcy Act, both of which are 31 years out of date... and it would get much different from there. Payment schedules are the least of the problems; just "fixing" them won't last, nor solve the other problems that drive many of the payment problems. For example, I seriously doubt that Mr Beck's deal does anything about reserves against returns!
• At least Beck isn't stuck with a music-industry contract, which would be worse. There's always been trouble earning money from music; compared to the push for performers to get money from radio play, authors' troubles sound trivial... but they aren't.
• Here's a thoughtful piece on how intellectual property might change in the largest English-speaking nation in the world as we proceed into the twenty-first century. It has some interesting implications for publishing that reinforce my skepticism of Mr Trachtenberg's ignorant rant (see the previous item).
• The 2009 Special 301 report is out, naming all the foreign nations that don't do enough to enforce 'murikan views of intellectual property... including that notorious scofflaw to the north of us. Nowhere in the Special 301 report, or any of the accompanying documents, is there any acknowledgement of the US's historical status as a haven for IP scofflaws, and in particular copyright pirates... especially in music. (Ask the heirs of Béla Bartók.)

Last for now — I'll be breaking down Carlsbad Tech. in more detail later today, specifically how it relates to § 411(a) of the Copyright Act and why that torpedoes the two database settlements — best wishes to Justice Souter on his impending retirement. It irritates me that he's what passes for a "liberal" on this Court. One might almost call his movement to the left of Attila the Hun — parallel to that of Justice Blackmun — as cosmic karma for Justice Frankfurter. In any event, this summer won't be dull in front of the Senate Judiciary Committee!

Labels: arts, copyright, culture, intellectual property, internet, jurisprudence, mass media, miscellany, politics, publishing