Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.
Caffeine- and sleep-deprived. I think I'll poach the next batch of sausages in Turkish coffee.
In the "free speech for me, but not for thee" department, consider the forthcoming documentary film Some Speech Is More Free Than Others... which, if done correctly, couldn't be shown on broadcast television because it would necessarily include the routine in the clip on the right. Of course, since it's on HBO...
This is the last day of the term for the Supreme Court. The most interesting aspect is that Citizens United — which is also at the intersection of free speech, media, and politics — will not be decided, but will instead be held over for reargument. This is the case concerning whether a propaganda film attacking Hillary Clinton was so much a piece of campaign work that the FEC could prohibit its release too close to the election under provisions intended to prevent candidates from evading contribution, spending, and other purportedly ethical provisions. Citizens United will be reargued on 09 September, with the parties required to answer the following question:
For the disposition of this case, should the Court overrule either or both Austin v. Michigan Chamber of Commerce and a part of McConnell v. FEC, which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002?
which leads to a very, very interesting question indeed: What if Justice-designate Sotomayor has not been confirmed and sworn in by that date? What it unfortunately does not do, though, is direct the following — which I would prefer to see at least reexamined:
<hypothetical-question> For the disposition of this case, should the Court overrule Buckley v. Valeo insofar as it holds that expenditures and contribution of money and other resources constitute expressive speech protected by the First Amendment that may not be severely regulated for the express purpose of ensuring free and fair elections? </hypothetical-question>
I just don't see that happening. Unfortunately; even if the decision were to come out the same way, I think that changes circumstances in the last couple of decades require formal reaffirmation or rejection... just like "separate but equal." For what it's worth, I think that classing money as "expressive speech" is inconsistent with the Court's obscenity decisions; if one can restrict "obscenity," one can also restrict "mere expenditure." I can see arguments both for and against restriction, but not for restricting one type of "disfavored" speech while allowing another at a constitutional level.
Which leads into another decision this morning that trends perilously close to another First Amendment right: freedom of association. In Cuomo v. Clearing House Ass'n, llc, No. 08–453, the Court held that the nineteenth-century National Bank Act does not — contrary to the wishes of the banks and the position of the Bush Administration — keep states from inquiring into banks' compliance with state laws, and in particular requesting "nonpublic" information regarding the banks' lending practices. The key point, which is completely absent from the syllabus, is that the state Attorney General's office was seeking records that would support or refute allegations that various nationally chartered banks were engaging in racial or otherwise unlawful discrimination in their lending practices, in violation of state law that applies to everyone.
This opinion is a bit odd, because Justice Scalia wrote for a majority of himself and Justices Breyer, Ginsburg, Souter, and Stevens, which is a somewhat unusual coalition. It really turns on whether Congress was writing competently in 1864 when it passed the National Bank Act. You can probably guess my opinion of that! In logical terms, the decision asks whether {visitorial powers} is a union or an intersection with {sovereign police/law-enforcement powers}. The dissent says "union"; the majority says "intersection, and this particular inquiry was enforcement and not visitorial." Had Congress written the statute more competently a century and a half ago — at a time when other legislation was also distinguishing between what is now called the "police power" and what should now be called the "directive power" but really has no coherent name — this case would have been unnecessary. And it would not have had First Amendment implications... because the "free association" right has always been a potential problem with any antidiscrimination effort, as the other opinion this morning (Ricci v. DeStafano, No. 07–1428) fails to grasp... and, again, is a civil-proceduresque holding in which Justice Kennedy is in the majority, although it's a much closer and more-difficult question this time.
I'm still working my way through the grants/rejections list, but one grant for next Term pops out immediately: American Needle v. National Football League, No. 08–661(PDF) (petition for certiorari granted 29 Jun 2009). This case asks whether the NFL is "one" or "a collection of thirty-two" — and it makes a big difference in antitrust law, and potentially throughout the entertainment industry.
Speaking of football, yesterday's match demonstrated that the US men's team is becoming more tactically sophisticated... and that there's some advantage to having largely college-educated players when engaging in a sophisticated scheme. Brazil employed a battering-ram approach to the match, relying upon the technical ability of its players over time to come through with a few moments of individual brilliance (twice) and/or take advantage of mistakes (twice, one disallowed). Even in those circumstances, though, there was never a feeling of inevitability to the Brazilian win, which is not at all what one would have expected. To my mind, that's because Brazil didn't play very intelligently against a 2/4 sliding defensive scheme by quickly switching play from flank to flank. But then, I was always an undersized defender in the Michael Parkhurst mold (nowhere near that good!) — with perhaps more of a Nobby Stiles attitude — than a traditional hulk like John Terry.
In any event, I thank both teams for a thoroughly entertaining, hard-fought but fairly played match. The gamesmanship too common to cup finals was remarkably absent. Congratulations to both, and to Brazil for winning (again) the Confederations Cup.
The putative "king of pop" is dead. Long live the king, whoever he may be. I come here not to praise Jackson, but to bury him. Friends, literati, countrymen — lend me your pixels.
Being a grouchy SOB myself, I'm not going to spread praise where little or none is deserved. The biggest problem with Michael Jackson's career as a performer is that much of it that was worthwhile was not his work. Michael Jackson did not choreograph or shoot the "Thriller" or "Bad" videos; if one listens to them, one finds vapid nonsense with average-at-best vocal performances over inconsistent background instrumentals. The rest of his oeuvre is consistent only in its inconsistency. I suppose one could say the same for Miles Davis, or for Jimi Hendrix, but then that also reinforces my point.
The less said about his non-performance influence on popular culture, the better: The Beatles catalog; the ranch; the refusal to act like an adult human being in public; and on, and on, and on. This is not what popular culture needs in a king. On another tentacle, it's usually what popular culture gets in a king... but that does not make me any sorrier to see the departure of an inept sovereign, because at least there's some hope for the new one.
Perhaps it's just my lifelong aversion to "pop," which usually means "turn your brain off, now, nothing's going to happen for about three or four minutes." Or, perhaps, it's just my lifelong aversion to flash over substance. As to Michael Jackson the individual, I'm slightly saddened but largely indifferent; as to Michael Jackson the cultural figure, I'm actually somewhat pleased, although I would have preferred just a quiet fade into the background al fine to death — and in particular to death redolent of a previous "king"'s, that will no doubt result in similar worship, as satirized in the clip. For "Graceland," read "Neverland Ranch"... if, that is, it ever emerges from bankruptcy.
... because they just go around in a circle until they end up where they started, biting their own tails. And if that's not a mixed-enough metaphor, just consider that they're sausages...
In a particularly delicious bit of reflexive irony, Chris Anderson — one of the advocates of long-tail economics, and especially for creative works — has been accused of plagiarism by the Virginia Quarterly Review. The reflexive aspect comes into play when one makes the connection between Anderson's constant (if sometimes hidden) advocacy of "street cred" as a substitute for economic compensation for creators and the alleged source of the alleged plagiarism: Wikipedia. There have been various claims that it's a careless error rather than malicious... but motivation is not really that relevant to my particular point.
The real problem with the long-tail theory is that it is mathematically ignorant. Business and economics do not take place in Lake Woebegone: Not all of the children are above average. Similarly, only a small proportion of creators are going to be otherwise self-sufficient and blessed with enough "leisure time" that they're willing to devote to creating distributable works of art that they can afford to offer those works for free (or to a small, rabid, self-selective fan base with inelastic brand loyalty). That's going to result in "art" coming from three groups of people: The idle rich (and/or tenured faculty), prisoners, and drones with patronage. Welcome back to the Italian Renaissance, guys... and remember that everything you know about its arts comes from what actually survived, not what wasn't created/distributed, and that they had this little thing called an Inquisition...
Now that Buffy has staked Edward, maybe she should head back to California and stake a bigger vampire: Google. After all, there's only one letter different between "Sunnydale" and "Sunnyvale"... and they mean the same thing. Of course, the irony of that particular suggestion coming from the WSJ suggests that maybe someone has stopped all garlic deliveries to NewsCorp!
One of the best possible reasons to object to the Google Book Search settlement is this inept, incredibly obtuse statement supporting the proposed settlement from the President of the Authors' Guild. He begins by misstating what a "copyright orphan" is(PDF), then proceeds to ignore the underlying economics of orphan works(PDF), the issues relating to transformative works and the parody/satire distinction, and finally winds up eliding both the marketplace problems from the authors' perspectives (rather ironic for a purported representative of authors) and the legal and ethical problems raised by the opt-out structure of the settlement.
Ultimately, the problem — as I've pointed out repeatedly before — comes from a very simple failing: The Authors' Guild is not an adequate representative of the range of interests presented in this litigation. Mr Blount and the Authors' Guild represent a relatively small subset of the author "community" (which is a "community" in the same way that all of the cats in Manhattan form a "community"), and that subset has interests in inherent conflict with much, and probably most, of the rest of the community.
The Supreme Court was busy again this morning, releasing four of the remaining seven argued cases; Chief Justice Roberts indicated that the last three will be released on Monday and that the Term will end then. Mob rule will then be safe until Monday, 05 October 2009, when we'll (hopefully) have nine justices on the bench if the Senate gets off its collective butt and votes on confirmation.
The theme of today was "When is something so excrutiatingly clear that even we can't find a way to fuck with it?" Ironically, that clarity came in a set of 5–4 decisions, indicating that nothing was really that clear in the first place.
Eight justices agreed that strip-searching a thirteen-year-old girl on the unsupported word of another girl looking for drugs was unconstitutional(PDF); however, five of the justices held that it wasn't so obviously unconstitutional that the school principal who ordered the search should be liable for damages, even after failing to find anything during the constitutional search of the girl's backpack and outer clothing. The majority's reasoning turned on some confusion in the Courts of Appeals on just how far one can go in ordering searches at schools. This particular decision is probably good news for John Yoo, but going into why might take too long; the key point is that the majority appears to believe that potential confusion arising from a post hoc review in the comfort of judicial chambers, years after the incident, is an adequate proxy for whether someone who deals with the issue every day might be equally confused.
A different set of five justices held that a criminal defendant is entitled to cross-examine the lab tech who filed a report on chemical analysis; the prosecution can't just enter the report and be done with it(PDF). What is most interesting about the dissent — Alito, Breyer, Kennedy, and Roberts — is that the reasoning betrays no understanding that lab technique matters in obtaining verifiable results... let alone interpreting lab results. I hereby renew my call for a scientist on the Court!
A still different set of five justices held that a maritime statute that does not explicitly reject common-law rights does not cut off those common-law rights — in particular, the right to sue for punitive damages(PDF)for refusing to pay for medical care for an injured seaman continues to exist. This may not sound that significant, and it may turn out to be restricted... but it's one of the few blanket reaffirmances of the right to sue for punitive damages that the Court has issued in the last couple of decades. Most of the time, as soon as the phrase "punitive damages" has appeared somewhere in the syllabus, it has been followed by a restriction on punitive damages.
Finally for today, yet another different set of five justices held that Fed. R. Civ. P. 60(b)(5) requires a stringent, searching review of the basis for a prior judgment(PDF)when challenged by a state government. Following my usual pre-reading reaction, since Justice Kennedy is in a 5–4 majority on a civil procedure issue I had my doubts... which, unfortunately, were confirmed at pages 14–20 of Justice Alito's majority opinion.
I'm bleary eyed, not the link sausages — the grinder did a pretty good job with their eyes.
Here's an amusing thought: ROTC for spies proposed. I wonder if they'll be required to wear trenchcoats on campus uniform day? With the number of work-study and grad-school students who end up working in places at any decent college/university who will have access to the data necessary to figure out who is paying for Johnny's tuition — not to mention the general inability of teenagers to keep secrets from anyone except their own parents — proposals to keep the identity of RITC cadets secret are going to run into reality pretty damned fast.
All seriousness aside, this is both a good and a bad idea. It's a good idea because the intelligence community desperately needs intelligence officers (particularly analysts and operations supervisors) who have not come throught its "academies" to offset the tunnel vision imposed by those academies; and, more importantly, as a wedge for other federal service ROTC-like programs. It's a bad idea because — perhaps more than any other area of federal service, including military officers — the close observation afforded by the intelligence "academies" is (if performed competently) a necessary component of training candidates... and washing them out.
As is all too typical, everybody arguing about whether the RWA is stupid in excluding e-publishing from its convention panels is missing the point, because they're forgetting the purpose of that minimum-advance requirement. The requirement has been around for a lot longer than e-publishing has been around, and is drawn from SFWA's model (yes, there has been overlap between the two groups for a long time). It's not about e-publishers and their undercapitalization; it's about keeping vanity-press-only authors out, and reinforcing the idea that the organization is supposed to represent a commercial trade. The required advance is set at a level high enough to keep someone from paying their $5,000 (now closer to $20,000) to V_____ or D____ or P_____ A_____ while simultaneously preventing token illusory advances (like P____ A____'s) from masking the noncommercial nature of that publishing contract.
The treatment of e-publishers is just collateral damage... and all of the favorable and unfavorable implications of that accusation are specifically intended. It's not like I haven't been dealing with this particular issue for a few decades now.
Further proof that most publishing executives don't know what they're talking about: A publishing executive claims that "[Paper-over-board binding is] not very common in the United States," and that paper-over-board casebound books are innovative in America. This is pretty easy to refute, even against the particular examples he cites as the exceptions... because they're typically found in school libraries, where one will find a plethora of paper-over-board books. I think what this executive means is that paper-over-board binding is somewhat uncommon in general trade publishing in the US; that's not, though, what he said, nor what the people who wrote/published the article mean. In short, it's yet more proof that there's no publishing industry in the US — just the bastard offspring of a three-century-long orgy among thirteen distinct publishing business niches.
It's that time of year in the Supreme Court: The toughest decisions get issued. That said, there's surprisingly little real news today, despite the issuance of NAMUDNO — a case challenging the overall constitutionality of the Voting Rights Act's "preclearance system."
For those who don't know, Congress determined in the 1960s that some parts of the country were so pervasively discriminatory in their voting histories that changing anything about voting procedures there required preclearance from the Department of Justice. In this instance, a water-services district near Austin, Texas wanted to change its polling location from someone's garage to somewhere else. Since Texas is a "covered jurisdiction" under § 5 of the Voting Rights Act, someone objected, leading to this litigation. In an 8–1 decision, the Court held this morning that the water district — since it has no history itself of voting discrimination, but is merely a discrete subset of a jurisdiction (Texas) with an extensive history of voting discrimination — must be allowed to use the "bail out" provisions in the Voting Rights Act to bail out of the preclearance requirement for administrative changes that do not themselves, on their face, appear to discriminate.
That constitutional question has attracted ardent briefs from dozens of interested parties, but the importance of the question does not justify our rushing to decide it. Quite the contrary: Our usual practice is to avoid the unnecessary resolution of constitutional questions. We agree that the district is eligible under the Act to seek bailout. We therefore reverse, and do not reach the constitutionality of §5.
Northwest Austin Municipal Utility District No. 1 v. Holder, No. 08–322 (22 Jun 2009) (PDF), slip op. at 2. Interestingly, the only Justice who would have voted to kill off § 5 entirely as unconstitutional was... Clarence Thomas.
That said, one must begin to wonder whether the avoidance doctrine retains much objective validity. Much as I'd prefer to see § 5 actually expanded — there's plenty of actual discrimination in voting going on even outside of "covered jurisdictions," and the problems in Minnesota scream very loudly that state and local supervision of elections is structurally inadequate — I do not think that the rule of law is well served by evading the issue. Sometimes it's necessary for the courts to get things wrong in order to force the legislature to act; the Voting Rights Act is, itself, a good example of that.
Meanwhile, "Dick" Cheney and his henchcreatures will escape civil liability to Valerie Plame (and her husband) for outing her as a CIA covert operative, as the Court has refused to review a decision(PDF) denying her the ability to proceed (see page 2, denying certiorari in number 08–1043). And this on a day when the events in Iran recall questions of "legitimate elections" after Bush v. Gore, and Minnesota remains down a Senator...
Jay Lake points to some interesting, if ultimately incomplete (and therefore unlikely — but not impossible! — to be correct) comments on the dubious future of the publishing "industry". For one thing, Mr Stevens' article fails to acknowledge that there is no publishing industry; there are, instead, thirteen (or perhaps eleven) distinct publishing niches with various degrees of cross-niche consolidation, which in turn indicates pretty clearly that there is going to be more than one future to the "publishing industry".
Second, it continues to accept the long-tail meme without doing the discrete math. On the right, you'll find an example of the long-tail graphic as used in that article. It's vastly more realistic than most (but for the cringe-producing mislabelling of one data element that, ironically enough, torpedoes the article's later imprecation to leave proofreading to the authors), and looks pretty convincing, doesn't it? The problem is that it's a freehand drawing based on the typical curves found in a non-calculus-based statistics course. Things get much, much more interesting once one acknowledges a few real-world difficulties:
Nobody has verifiable data to determine any aspect of the plotted curve, which in my own experience (based largely on the closest thing to "verifiable data" that exists: responses to discovery requests) is neither as smooth as nor as flat as the one in the diagram;
There's a huge difference between retrospective and prospective use of distribution functions, often simplified in Heisenberg's Principle but perhaps best exemplified by attempting to solve simple things like the Bessel function for a single electron... and then figuring out crystal structure from that data;
But, most grievously, there's a variable that is completely unaccounted for: t.
Ultimately, all of these "long-tail" theories fail because they are retrospective, cumulative snapshots that account only for aggregate income/sales — they do not account at all for the rate of the relevant transactions. I refuse to further mislead by trying to create a two-dimensional, web-friendly graphical representation of a four- (or more) dimensional reality that unfolds over time.
That said, there is one vastly superior model: Cellular energy acquisition, storage, and use. In this model, publishers aren't gatekeepers: They're enzymes (or, outside of the cell, catalysts) that reduce the activation energy required to actually start a reaction — say, the extraction and storage of energy through
ATP ←→ ADP + P
without disrupting other cellular processes... and is achievable without substantial further energy input. Of course, this all assumes some knowledge of basic thermodynamics — a part of physics and chemistry that thus far seems to apply to every natural system, even if the social "sciences" (let alone academic management!) have yet to figure that out.
So, in the end, this is another misleading snapshot. I guess what I'm really calling for is Publishing: The Motion Picture before I'll accept any of this stuff... because even under the 1934 Securities Act — what is really driving all of this nonsense — there's a nonzero temporal reporting horizon for publicly held companies (quarterly reports). It's rather ironic that the last graphic in Mr Stephens' {typo intended} ultimately misguided analysis does acknowledge time... and that he's a physicist!
It may be Friday, but (as indicated by the last three items below) I have no objection to pork products. It's one thing to honor one's ancestry; it's another thing entirely to be bound by it (and what is the binder in these dubious internet sausage links, anyway... or does anyone really want to know?).
In the Department of Unintentional Irony, The Atlantic is running with a story on the "death" of the weekly newsmagazine... but for The Economist. This is just jawdroppingly, recursively goofy. To begin with, The Economist has never pretended to be a "weekly newsmagazine": it has always classed itself as a "newspaper," but one offering analysis more than breaking news; it has always priced itself for the upper middle class and upper class (running at least five times the going rate for its purported competition); and the article itself bears a more-than-faint patina of disdain for mass-market publications that change in response to changing market and technological conditions... which is particularly silly given the provenance of The Atlantic itself (and reminds me more than a bit of Pierre Menard). Perhaps the most delicious bit of reflexive irony, though, is buried in the author of the article's own history of adapting to the market, including his role as a modestly evolutionary editor of the modestly better than toiletpaper Spin (which aspires to be Rolling Stone when it grows sobers up).
Google, in a remarkably stupid move, has already started modifying the publicly available feature set of Google Books in a way that by itself calls the fairness and propriety of the GBS settlement into question. This reflects the principle problem with the technology industry: The tech geeks and law geeks don't communicate before doing all that cool stuff. There's plenty of blame on both ends: The tech geeks seldom even talk to the lawyers... at least in part, and probably mostly, because the lawyers don't respond coherently (or quickly) when they do.
Here's a fascinating look at how copyright "should" be treated in insolvency (UK equivalent of bankruptcy). I'd be very interested to know how often this ideal even gets acknowledged — let alone measurably approached — in practice... particularly since the UK doesn't have the WFH doctrine, which by its nature should (but seldom does) make things much more Interesting in US bankruptcy practice.
From the Department of A Pox on All Their Houses, Professor Madison comments on the recent multimillion-dollar filesharing verdict. Of course, if the "information wants to be free" advocates really believe that that meme applies, they'll take up a collection to at least cover the criminallosing defendant's legal expenses a(and probable liability for the RIAA's attorney's fees). But then the "information" wouldn't be free, would it? Or, I suppose, they could just start a food fight... which, come to think of it, reflects what's going on more than one might wish. Maybe they're really more concerned with responding to the Germans bombing Pearl Harbor.
Professor Froomkin offers an interesting (and understatedly correct, IMNSHO) comment on Judge (Justice-designate) Sonia Sotomayor's enemies and missteps. That includes you, Broad Universe: I've been excluded from a number of organizations through "invidious discrimination" in the past, and I don't tolerate it under any circumstances... particularly when the purported "subject" is as clearly distinct as the value of a copyrighted work and the gender of its creator (n.b. Exhibit A: James Tiptree, Jr., one of the "heroes" thereof...).
It's the end of the first week of summer school classes for the elder remora... which means he has his first midterm today, after the equivalent of four weeks of class. And in honor of that midterm being in a rather difficult language...
...which definitely beats the inept analysis of Ayotollah Khameini's Friday prayer speech today. Hint: In Persian/Farsi, one can (and Khameini seems to have based on that marginal-audio-quality recording, albeit not as clearly as he should have) make a distinction between an organization and a person who is a leader of/seeking to become a leader of that organization. None of which excuses any of the election fraud apparently involved: The secular election was inherently fraudulent by pretending that it was for a position of real power in a theocracy.
There's very little wry humor anywhere near the Salinger lawsuit. As I've remarked before, The Catcher in the Rye is virtually a self-parody to begin with — something that was apparent to me as a high-school sophomore more years ago than I care to admit. It's really not a very good idea to then file for an injunction against publication of a parody of that self-parody, particularly since the standard for granting the injunction includes proving "irreparable harm"... but then, Holden Caulfield is a self-parodying example of 1950s intellectual dishonesty, so I shouldn't be surprised that his creator (or his creator's lawyers) can't see that.
Did altruism arise from the pointy end of a spear? I suspect this says much more about dubious assumptions in the model than it does about anything else... because "altruism" appears in species (such as T. truncatus) with no comparable analog to intra-species warfare. What is more likely is that altruistic behavior only left archealogical artifacts identifiable as "altruistic" in correlation with the acheaological artifacts that are identifiable as "warlike" — which leads to far different conclusions.
When The Economist gives a positive review to a book claiming that maybe markets aren't "efficient" after all, it's worth taking notice. Market-based hypotheses form critical parts of so much modern policy — including bestseller lists and the Intellectual Property Clause — that questioning that orthodoxy requires some thought.
Professor Levinson muses on the continuing value of "the great experiment" — the quasisovereignty of the states in our federal system — over at the ironically appropriately named Balkinization (think about it for a moment). Whether or not one agrees with the conclusions, one can definitely say that it's not "efficient" (and think about that in relation to previous sausages). Now further contrast that with Professor Buchanan's comments on bad state governments... and stop to think for a moment about the purportedly inconsistent theories of "command authority" (and "span of control") and "voter rights". Then go get plastered, because the hangover will feel a lot better than your head does after that.
Staying in the academic blawgosphere for a while longer, Professor Goldman has an important note on how (not) to write contracts. And this isn't just related to the 'net, either; consider the unenforceable (and, in the worst case, possibly evidence of fraudulent intent) ipso facto clauses common on publishing contracts, that purport to return the rights to the author if the publisher files for bankruptcy. It's only been thirty-one years since this became facially unenforceable (see11 U.S.C. § 362), and about a quarter of a century since the courts made clear this applies to ipso facto clauses.
Why, then, do we continue to see them in publishing contracts? Probably because so few publishing contracts actually get read as a whole by competent counsel... on either side of the negotiating table.
...because they're just hoppin' off the grill, and they're not made from the usual mix of ingredients.
Here's an interesting piece in the NYT on bullying and how it (might) be prevented. The real problem with the article is that it doesn't go nearly far enough, as it's limited to children. How about including wingnut talk radio and Fox News in there? (And yes, Mr. Ailes, I do mean you; you're the gangleader and facilitator, not to mention having hired those nutjobs. But that shouldn't surprise anyone who observed you very closely a couple of decades ago when you made bullying the order of the day in the White House Communications Office.)
An interview with the "Jamie Oliver of kidlit" that doesn't quite get to the heart of the matter. It's not the issues per se that make the difference: It's embracing ambiguity.
Once again, an unnamed blogger at The Grauniad has discovered that 1984 was heavily influenced — structurally, at least — by We. Late-breaking news bulletin, guys: It's the perspective that matters in this context... or, for that matter, the entire context. The comments following the unattributed entry are hilarious in their collective ignorance.
The Internet: Twice the piracy and none of the scurvy (the irony that that link is from the UK shall be left only implied).
Here's an interesting idea: single-blind testing of search engines. There are some interesting results... such as the revelation that Yahoo! actually listened to customer complaints — and Google didn't — about removing purposeful punctuation (like the periods after initials) from search terms, resulting in gibberish.
If true, this lawsuit in which a media group (allegedly) retaliates against an artist wanting to get paid bears a truly disturbing resemblance to business-as-usual in the publishing industry. I am personally aware of four writers who are blacklisted at the Big Five conglomerates — despite being consistent bestsellers — because they filed complaints regarding publishers' accounting. (OK, one of them is a complete ass, too, but it was the complaint that instigated the blacklisting.) Any publisher that claims not to have a blacklist is lying about it; perhaps not every employee knows about it, or who is on it, but the lists exist... and get enforced.
Professor Leiter discusses the ethics of outing anonymous/pseudonymous writers on the 'net with some aplomb... even if I don't ultimately agree with exactly where he would draw the (squiggly) line in the sand, he cogently describes how to make that decision, and problems with the decisionmaking process.
Just some side thoughts — the paperwork snowstorm has not abated (if anything, it's worse).
Today, the Supreme Court decided that the title question of this post does, in fact, have an answer... and if it is "too much," then the judge may not hear certain cases. In this instance, it's referring to Chief Justice Benjamin of the Supreme Court of West Virginia, who was elected during the pendency of a large commercial lawsuit largely on the back of campaign contributions from one of the two companies (or, at least, its CEO and/or PACs and other actors beholden to him) involved in that lawsuit. He refused to take himself out of the lawsuit and cast the deciding vote. Care to guess which way he voted?
This is not to say that Justice Benjamin was, in fact, prejudiced in favor of either party; I simply have no knowledge of that. Today's US Supreme Court opinion treats actual prejudice as irrelevant; instead, what matters is the appearance of prejudice.
In other words, based on the facts presented by Caperton, Justice Benjamin conducted
a probing search into his actual motives and inclinations;
and he found none to be improper. We do not question his
subjective findings of impartiality and propriety. Nor do
we determine whether there was actual bias.
* * *
We turn to the influence at issue in this case. Not every
campaign contribution by a litigant or attorney creates a
probability of bias that requires a judge’s recusal, but this
is an exceptional case. We conclude that there is a serious risk of actual bias—based on
objective and reasonable perceptions—when a person with
a personal stake in a particular case had a significant and
disproportionate influence in placing the judge on the case
by raising funds or directing the judge’s election campaign
when the case was pending or imminent. The inquiry
centers on the contribution’s relative size in comparison to
the total amount of money contributed to the campaign,
the total amount spent in the election, and the apparent
effect such contribution had on the outcome of the election.
Applying this principle, we conclude that Blankenship’s
campaign efforts had a significant and disproportionate
influence in placing Justice Benjamin on the case.
Caperton v. A.T. Massey Coal Co., Inc., No. 08–22 (08 Jun 2009) (PDF), slip op. at 12–14 (internal citations omitted).
Bluntly, this standard is far too weak. I believe that the legal profession as a whole — let alone judges — must follow the military officer's code on conflicts of interest: The appearance of a conflict of interest shall be treated as an actual conflict of interest pending clearance after reasonable investigation by a disinterested party competent to both perform and evaluate the investigation. That leads implies another problem, though... and the Supreme Court has steadfastly refused to grapple with it.
I do not believe that elected judgeships fulfill the Republican Form of Government clause (U.S. Const. Art. IV, § 4). After all, the only "Republican Form of Government" that the Founders could have been pointing to that allowed for a separately elected executive was the one they were constructing for the federal government... which included appointed judges. Further, at that time judges in England and (as far as I've been able to determine) the rest of Western Europe were also appointed, not elected.
But even if judicial elections do fit within the minimum constitutional scheme, they are such a horrible idea that they inherently call the equal-handed administration of justice into question... to a greater extent than does any system involving nomination followed by confirmation, however imperfect that may become in practice. Not too long ago, it was Illinois — not West Virginia — that was the subject of handwringing over a nasty, expensive election campaign to our state Supreme Court... and since it was for a Justice from only a part of the state, it got even worse, because he gets to cast binding votes for the whole state. And not too long after I got out of law school, a local jurist ran for election on a "tough on crime" platform. That's right: His ads to become a judge in criminal cases flaunted that he'd have little, if any, sympathy for any accused wrongdoer. <SARCASM> Yeah, I'm sure he'll give anyone who can't afford private defense counsel a fair trial — just as fair as the trial he'll give anyone who can. Pro se defendants? You've got to be kidding me! </SARCASM> And regardless of the substance — for all I know, this judge actually does give everyone a fair trial — those attack ads with barely concealed glee/horror that the judge's opponent had let an accused murderer go free on a "technicality" and had refused to impose the death penalty on a different (convicted) murderer have certainly undermined the credibility of the criminal justice system in this community. I do keep my ears open in public around here, and you'd be surprised how well-remembered those ads are among some members of the public when they don't think anyone is listening...
A bit snowed under in paperwork for a few days here... at the moment, I'm just sticking my head out of the drifts for a moment to catch some air. Some humid, pollen-and-cropdust-filled Midwest farmbelt air, but it'll have to do.
Some PIs do shoot first.
In a startling bit of unintentional irony, GoDaddy is calling on the US to maintain oversight authority over ICANN so as to "push the organization to become more transparent and accountable to registrars and Internet users" (direct quotation from article, not from GoDaddy's counsel). Tell that to any copyright holder who is trying to find the infringer who registered his (it's almost always "his") domain using DomainsByProxy, though.
Here's a side note that combines education with the publishing industry and theocracy: The Governator has proposed using free-on-the-net electronic textbooks in California schools, but some are claiming that the total cost won't be any less. That, however, ignores the real benefit: No more dominance by Texas.
American primary and secondary education textbooks are virtually determined by the Texas School Board. That's because Texas buys all of the approved textbooks for the state. That board has been coopted for decades by theocrats, and it's only getting worse, with creationists (among others) pushing to keep books that display any hostility to theocracy whatsoever off the "approved" list. And since the flawed accounting in textbook publishing tells publishers that they either get on the approved list in Texas or they don't make a profit on the textbook... well, you can guess what one of the causes of watered-down textbooks is, right? The Governator's proposal, however, would open another conduit of textbooks for California students that is outside of that approval system. That's no guarantee of quality, but it at least removes one potential roadblock.
The principle problem with economics is that it knows the cost of everything and the value of nothing. When even the not-quite-wingnutty-but-still-doctrinairily-far-right Claremont Instutute acknowledges that, perhaps it's time for everyone to do so.
It's only a matter of time, now, Hollywood (and American TV producers trying to bust SAG/AFTRA): A French court says that reality show contestants are employees — and, therefore, may unionize. I'm having difficulty imagining a strike ballot on Survivor: Gilligan's Island this fall, though. For starters, who would supervise the election? And haven't they ever heard of a "secret ballot"?
Maybe Norm Coleman wants to be a spokeman for Viagra, but is a really bad speller:
If you experience an election lasting more than four hours — or even four months — seek medical attention immediately. Ask your physician if you are healthy enough for legal activity.
Appellants' briefs will be filed today in Post-Tasini (aka Muchnick). Amicus briefs supporting reversal are due in a week; the opposing brief is due on 07 August. Why should y'all care? This case will try to answer this question definitively:
Does 17 U.S.C. § 411(a) restrict the subject matter jurisdiction of the federal courts over copyright infringement actions?
[N]o action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.
Historically — largely in reliance upon judicial (not legislative) interpretations of the 1870 and 1909 Copyright Acts — courts have tended to say that this is a jurisdictional requirement. IMNSHO, it's nowhere near "jurisdictional"... particularly since the 1976 Act knows how to say "jurisdiction" (such as in 28 U.S.C. § 1338(a), which was created in the same bill), and the language used looks like "administrative exhaustion" language from many other statutes, such as those dealing with employment discrimination claims. As I've remarked repeatedly before, it matters how one loses.
Further, there's a troubling practical aspect to treating § 411 as a jurisdictional bar: It would place jurisdiction in the hands of a third party against whom the author has no practical remedy. A substantial majority of commercial publishing contracts for book-length works explicitly place the duty to register a work on the publisher. If the publisher fails in that duty, and § 411 is jurisdictional, the author has no copyright remedy against an infringer. If the publisher fails in that duty, and § 411 is a matter of administrative exhaustion, the author need only demonstrate that he or she has taken all the steps she is obligated to take under the contract to enable registration. (Of course, the actual doctrine of administrative exhaustion gets a lot more complicated than that, but that's my point.)
Then there's the whole "substantial justice" issue, since § 411 doesn't apply to "non-US" works, thanks to treaty obligations. And it gets even more complex then... but the better answer remains "administrative exhaustion," not "jurisdictional." Of course, the best answer is to eliminate the registration requirement in the first place, which is unique to US law.
Meanwhile, almost under the radar, Google put forth plans at Book Expo America to compete with Amazon by selling e-books, bringing the Google Book Search settlement much, much closer to the substance of Muchnick (in which the database aggregators and publishers sell access to articles) than anyone is really acknowledging.
Since so much of the debt load of these (and many other) manufacturers consists of contributions to union health-care funds, wouldn't we perhaps be better off going to a single-payer system where medical care is a matter of right, not commercial bargaining? Every commercial bargain has transaction costs... and anyone who even glances at our medical system can infer rather rapidly that those transaction costs are eating the system alive.
Do you think that maybe — just maybe — the (primarily) Japanese manufacturers of high-quality, smaller vehicles of the 1980s and 1990s knew something that Detroit didn't? And, if so, what does that tell us about the ability of publicly owned oligopolists that are "too big to fail" to effectively evaluate risks, let alone take them? And, more particularly, what does that tell us about the probable fate of the entertainment and publishing industry?
Can anybody involved in this fiasco spell "comparative advantage," despite proclaiming the ascendancy of "capitalism" as a result of the fall of the major communist powers?
Fortunately, the Supreme Court did something right this morning: It has agreed to determine if "business methods" are appropriate for patents. OK, the "question presented" isn't either that clear or that broad, but the Court will necessarily have to consider it... and it however it resolves the particular case in front of it, it will clarify a great deal of the borderland among copyright, patent, and trade secret law. Or, at least, clarify it enough for lawyers to fight over it!
My friend the IPKat notes an interesting perspective on the Pirate Bay criminal litigation: Should a Swedish court look to a quarter-century-old US opinion on a seemingly disjoint question of copyright law to inform its decision? Ah, the shoe is on the other foot now, isn't it, Justice Scalia (and others who think that US courts should never look to foreign law to inform their reasoning)? That said, I'm afraid that the argument doesn't persuade very much once one looks at the lower court proceedings in Sony; the "facts" of the matter were not well/clearly stated by the Supreme Court, and they are quite distinct from the admitted infringing intent in Pirate Bay. But one doesn't even reach that question without considering the foreign law, does one?
Will micropayment systems chop off the long-tail "model" for internet "success"? It's an interesting, and difficult question. Substantively, I suspect that a workable micropayment system will at least in practice make the long-tail argument nonviable... so long as price levels are set so that reading a whole issue of the WSJ under the micropayment system does not cost appreciably more than does the fully diluted subscription cost to the whole issue. (Given the identity of the publisher, though, don't f*cking count on that!) I'll just say one more word, though, and it should scare the hell out of those who blithely propose micropayment systems as a panacaea: Ticketmaster.
Ritual disclaimer: This blog contains legal commentary, but it is only general commentary. It does not
constitute legal advice for your situation. It does not create an attorney-client relationship or any other
expectation of confidentiality, nor is it an offer of representation.
I approve of no advertising appearing on or through
syndication for anything other than the syndication itself; any such advertising violates the limited
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to this blawg without actually providing the content from this blawg.
Sausages?
Internet link sausages, as frequently appear here, are gathered from uninspected
meaty internet products and byproducts via processes you really, really don't want to observe; spiced with my own
secret, snarky, sarcastic blend; quite possibly extended with sawdust or other indigestibles; and stuffed
into your monitor (instead of either real or artificial casings). They're sort of like "link salad" or
"pot pourri" or "miscellaneous musings" (or, for that matter, "making law"), but far more disturbing.
I am not responsible for any changes to your lipid counts or blood pressure from consuming
these sausages... nor for your monitor if you insist on covering them with mash or sauce.
Archives
Warped Weft
Now live at the new site. I have arranged some of
the more infamous threads that have appeared here
by unravelling them from the blawg tapestry (and hopefully eliminating some
of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.
The Public Library of Law can help you
find the law... but not use it in court, as many of its resources are not in proper form and do not provide
all of the citation information needed in court papers
Legal, free e-books are available through
Online Books (University of Pennsylvania)
and Shakespeare (MIT)
Legal, free music is available through
ClassicCat.net
(what kind of music do you think you'll find here?)
These may be of interest; I do not necessarily agree
with opinions expressed in them, although the reasoning and writing are almost always first-rate (and
represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have
eclectic tastes, so don't expect a comprehensive listing.
A blawg is sort of like a blog on legal issues, but
usually has a lot more links to outside resources (other than other blogs) than does a typical blog.
Scrivener's Error is a blawg, not just a blog. You can find other blawgs at <?law blogs#>.
How Appealing
is aimed at appellate lawyers and legal
news in general. If you care about the state of the law, start here — Howard's commentary is far
better balanced, better informed, and better considered than any of the media outlets. To
concentrate on the Supreme Court, don't forget
SCOTUSBlog.
Some academics' blawgs with a variety of political (and doctrinal) viewpoints:
BoingBoing, by speculative fiction writer
(and 'net
activist) Cory Doctorow, is quite hostile to copyright enforcement efforts, particularly
regarding file-sharing
The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a
less Eurocentric view) at IPFinance
Cyberlaw (Stanford) has its agenda
grounded firmly in the so-called "digital commons," which might make a bit more sense if any of the
advocates of that viewpoint understood diddly-squat about population ecology
The American Constitution Society blawg
is a purportedly "liberal" counterweight to the so-called
"Federalist Society" (which, despite
its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe
that's all to the good.
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at 1024x768.