link to: 12:00 [GMT-6]

Die Grippe

 

Travel grippe finally caught up with me. Urggh. Thus, these sausages got some extra aging and "seasoning." Even more so than usual, you really don't want to know how these link sausages were made.

• William Shatner (and his hairpiece) have been up to interesting things lately. He's left a voicemail message for every HP employee decrying HP's breaking of a "promise" to stop using "dangerous" plastics in its computers.¹ And then there's this video, which is so wrong that it's right.
• The Louvre is going to admit that not everyone is in Paris or speaks French by putting its database online in English tomorrow. What's next? Will the French Dictionary Police turn in their badges? Meanwhile, the AP — as further proof that it has learned nothing about copyright and intellectual property, news, and marketing since it lost a seminal case a few decades back — is going the opposite direction, planning to "wrap" its online news in (unusually defective) DRM.
• This is complicated enough to make a truly excellent exam question for an upper-level law school class: a festival of GI Joe fan fiction, not coincidentally just before the release of a major motion picture. On a parallel track, the authorized evolution of fan fiction — properly published media tie-in fiction — issued its own "annual" awards at ComicCon. Discuss.
• I'm afraid I know a lot more about the tangled web of film rights to Tolkein's works than I can really say. Without further editorializing, let me just say that this account from School Library Journal vastly understates/underimplies the issue(s) involved, and that the lawsuit seeking equitable return of rights is merely the tip of Smaug's snout... while he's still asleep. The problem is not with Peter Jackson, or at least this problem is not with Peter Jackson.
• The major pop-music magazines appear to be dying. Schade — they deserve it, but for a reason untouched by the article in question: Their standards and content are so bad — and they have been that way for thirty years or more, before Spin itself was more than a concept — that they have long been mere carriers for advertising. Calling their recording reviews "drugola" (counterpart of "payola"; reflecting the actual medium of exchange) would have been too generous since about 1971. At least, based on the influence of musicianship upon review content, one can only infer that some serious drugs were involved...
• The New Yawkah "discusses" The Left Hand of Darkness (and other topics) with Ursula K. Le Guin.
• In the "I'm still chewing this sausage to see what it really means" department, an interesting (if somewhat misguided, because it's drawing in terminology from yet another technical realm: military theory) piece on IP in corporate communications with some as-yet-unclear implications concerning business plans. And from the same blawg and department, two other incompatible corporate issues meet: accounting (specifically, depreciation of assets) and trademark valuation, with some of the same implications.

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1. The implicit claim that there are "nondangerous" alternatives, by the way, reflects an egregious misunderstanding of the various chemical processes by which all plastics are made. In this instance, it's a question of balancing the risk of careless disposal of the endproduct causing damage against the manufacturing process almost certainly causing damage, albeit to a much smaller number of people.

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

link to: 13:39 [GMT-6]

Hollywood Sausages

 

Just like any other sausages, you really can't examine the ingredients of movies too carefully, or you'll be completely turned off.

• Like the trailers, which indicate pretty unmistakeably that the War on Drugs has not interdicted any of the hallucingens commonly consumed by the idiots who green-light this stuff. At screenings both last week and the week before, separated by half a continent, the only commonality is that the people who approved G-Force, Shorts, and half-a-dozen other forthcoming trainwrecks had dropped acid, followed by a variety of other illicit substances.
• The idiots who design the seats in cinemas should be treated by an expert neurosurgeon to create two or three bulging spinal disks each, then forced to sit in their creations for three hours. And the same goes, of course, for the idiots who design the seats in airliners. If my 1986 Chevy (from a 1985 Toyota design) could have adjustable back support, there's little reason that one can't have the same — or even just some back support — a quarter-century later.
• Squirrel! (made you look)

  Hypothesis: The primary difference between Pixar's films and other animations is that Pixar treats the animation as a method of telling a story, while the others treat the story as a method for assembling kewl visual set-pieces. Thus, the latter will be stuck wearing the Collar of Shame. That particularly includes the forthcoming Disney nightmare The Princess and the Frog, which includes a lot of stereotypical "kewl black guy" behavior in the frog... and just tints a stereotypical caucasian Disney princess brown, at least in the trailer.

• The latest Harry Potter film has taken a radical turn in its storytelling style: It no longer relies upon verbalizing all significant aspects of the story, even the throw-away devices in the visual and/or audio background. In many ways, this is an immense improvement, and represents possibly the only hope for condensing the (sadly overlong, primarily because they didn't get a hard-enough edit) last two novels. On the whole, HP&tHBP was a successful-enough placeholder, or more accurately rececitive in the series. The individual performances were more interesting, although Rupert Grint retains an unfortunate tendency toward predictable, broad, old-school-vaudeville overacting.

  Those comments aside, HP&tHBP is sort of a mid-grade imported dark chocolate bar: It has satisfying dark undertones, is just sweet enough to be noticed, and it doesn't melt in the hands. Emma Watson and Bonnie Wright did a nice job of restraining the impulse to go emo.

• On a distinctly sillier note, I took the younger remora to Burger King for lunch today. We sat down next to some of those clean-cut young men in white shirts and black pants (who probably ignored us thanks to the remora's t-shirt), and he then wondered which was worse: Kingons or Mormulans. I think I know how to deal with the latter, though (or, for that matter, any solicitors who come to my door and can't read the "no soliciting" sign).

Labels: culture, life, mass media, miscellany

link to: 12:58 [GMT-6]

Link Sausages of Unusual Size

 

Today's publishing/IP sausages probably don't belong on the same plate... if only because there's not much room left after the first one. And I apologize for the lateness of that particular sausage — I spent a lot of time toning down my own ire.

• Some YA critics feel cheated by the new Justine Larbalestier cover. As does the author herself. Frankly, I think they're missing the point... but not in their ire, which appears to be well founded.

  The real problem here is that the marketing dorks don't know what they're selling. They are not selling refrigerators. They are selling individual hand-crafted pieces of jewelry. And that, in turn, means that an effective marketing campaign must consider the individual characteristics of what they're selling. Add this to the fact that the marketing dorks aren't selling to the public — they're selling to chain-store bookbuyers, a white/middle-class audience.

  This is not a problem unique to YA fiction, by any means; it is just — perhaps — more evident on the surface. It exposes a much deeper difficulty, though, implied by this comment on Ms Larbalestier's blog:

  The US Liar cover went through many different versions. An early one, which I loved, had the word Liar written in human hair. Sales & Marketing did not think it would sell. Bloomsbury has had a lot of success with photos of girls on their covers and that’s what they wanted. Although not all of the early girl face covers were white, none showed girls who looked remotely like Micah.

  (Bold emphasis added) Really? Let me put on my scientist hat right now and ask several questions to which I know the answers, although I'm pretty sure that Bloomsbury itself does not... because it has never asked them:

  • How does Bloomsbury define "a lot of success"?
  • Is the population for which there has been "a lot of success" actually congruent with the population of books with "photos of girls on their covers"?
  • If so, is that population both comparable to and statistically distinct from the populations:
    • Books with photos of girls on their covers that did not have a lot of success?
    • Books without photos of girls on their covers that did not have a lot of success?
    • Books without photos of girls on their covers that did have a lot of success?
  • Have any of the above variables been controlled for time, for subject matter, for prior author experience and brand identification, for velocity as opposed to volume, or indeed for anything else?
  • Is there a statistically significant sample of acknowledged nonrepresentative covers to compare?

I could go on for a while longer, but I won't. Instead, just remember that the entire S&M mystique is built upon unverifiable gut instincts, and yet the S&M persuasive position relies upon not just "we know what works"... but "we've got numbers to prove it." Bluntly, no, they don't. They may have numbers, but pulling made-up statistics out of thin air isn't the same thing at all.

Instead, what we actually have here is not just a failure to communicate, but a failure to communicate based on an argument from authority — not from fact. And the authority is, at best, dubious, given the incomprehensibly random nature of book sales.

• New that Random House is holding a very stiff line on payment for e-book rights isn't exactly news, but the even moderately intelligent should think "monopsony pricing" and scurry off to the Sherman Antitrust Act.
• More appropriate for a Friday list, consider this copyright fight over a quasiiconic drinking song in Germany.
• Professor Rebecca Tushnet notes a case involving allegedly misleading labels on fruit juice. This just begs for a publishing, and perhaps film and music, corollary, revolving around the Copyright Office's determination of "how much expression must be contributed to be an 'author'" and the issue of books "by" James L. Patterson, films "by" Director X, and lip-synched cover songs "by" anyone from American Idiotol.

Labels: copyright, intellectual property, publishing

link to: 16:14 [GMT-6]

All-Natural Lean Meat Fillings

 

These sausages are a bit meatier than many of those of late — I've been saving up some musings while away, and several stories finally broke that were awaiting meaty treatment. (But not as meaty as the sausages at Brats Brothers Gourmet Sausage Grill in Sherman Oaks.) Plus, since I no longer have to be quite so careful concerning that appellate hearing last week...

• From the department of libel tourism, a UK judge has held that Google is not a "publisher" of material contained in search results, which is good news. In Metropolitan Schools Int'l, Ltd. v. Designtechnica Corp., [2009] EWHC 1765, a distance-learning company was aggrieved by an Oregon-based bulletin board system's use of the word "scam" in referring to a course — which showed up as a snippet in a Google search result. After a variety of questionable maneuvers to place the matter in a UK court, that court rejected treating Google as "publisher" (speaker) of the term "scam" as it appeared in the snippet. Interestingly, Judge Eady specifically referred to § 230 of the Communications Decency Act — the US law that would govern this matter — but (in ¶ 118 of his decision) rejected its application. Instead, he simply held that Google's search engine results are a mere conduit, not a knowing and willful repetition (see ¶¶ 48–64)... consistent with his own prior opinion in Bunt v. Tilley, [2006] EWHC 407.

  This decision means both more and less than it appears to mean. It means that purely passive display of information on a search engine does not subject the search engine to liability for defamation in the UK. More disturbingly, though, Judge Eady's rejection of non-UK law in determining the rights and obligations of non-UK parties reflects the bizarre arrogance and imperialism of the UK's defamation law epitomized in Ehrenfeld.

• The European Commission has set hearings on the Google Book Search settlement for 07 September 2009 — two days after the opt-out period closes. Meanwhile, the BBC reports that some pirate sites are going "legitimately" commercial... but does not remark that most of that "commercial" activity is done without rightsholder permission. Even through B&N's new "multireader e-books" program, which really isn't any better vetted than I noted yesterday concerning Amazon's screwups.
• Professor Rebecca Tushnet notes the continuing problem of parody, satire, and transformation, this time concerning The Family Guy, and places the blame where it belongs: The poorly written opinion in 2Live Crew, which firmly established the (untenable and incorrect) parody/satire distinction.
• Professor Pasquale notes that the debate over health care costs is enforcing silence concerning views that the proposed "reforms" don't go far enough. Part of this is just ignorant rhetorical misunderstanding in the media: The lemma that there are always two, and exactly two, valid points of view on any legislative agenda. Part of this is the old problem of the perfect being the enemy of the good enough; I support the health care reform bill in front of Congress as an achievable step toward a Rawls-efficient system, not as a utopian paradigm and balance for health care. Yet another part is the assumption that "health care reform" is necessarily a single package of some kind in the first place, which is just about as valid as claiming that "national security" is all about how many troops we've got on the ground in various trouble spots... and only that.
• Last, and far from least, Scalzi is hosting a (predictable) discussion on Roberts' rant against the Hugo ballot, in which he (Scalzi) calls it a "kvetch"... and misses the target by so much that a barn door would feel safe. I find it predictable and sad, and simultaneously immensely amusing, that the argument has devolved into "them hoity-toity perfessers don't know nothin' 'bout skiffy." Of course, if fen did not do their damndest to alienate (pun intended) any academics who tried to study speculative fiction; and if they could see the irony in calling "elitist" a group that is trying to study a relatively elitist activity (reading for pleasure); and if they had a modicum of education themselves, and could see that even though a trainwreck is "entertaining" it shouldn't win any awards for that "entertainment value"; and if this sentence ever comes to an end — they might all see that my ambition to place a royalty statement on the fiction ballot for a major award is less misplaced than their ire.

  That goes for you, too, Mr Scalzi, because this time around you're wrong. You misinterpreted Mr Roberts' rant, admittedly with some cause and justification; and you're feeding the trolls. I don't claim to know exactly what is "right," but I can spot "egregiously, perceptibly, verifiably wrong" in this context.

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

link to: 09:24 [GMT-6]

Goodbye, Uncle Walter

 

Back from Planet California. Opposing counsel in that appeal I was out there to help handle (I did the prep work; my colleague actually argued) blew it. There's an old aphorism that one cannot win an appeal at oral argument, but one can lose it. Although the court's remarks prior to beginning the argument indicated that we had won on the briefs, opposing counsel did not help her client, and her inaccurate "correction" to the judge's question about the record probably did lose the matter if we hadn't already won by then.

• The Grauniad offers an interesting, if somewhat shallow, profile of Ray Bradbury as part of a series on short fiction. Elsewhere, consider which words you love/hate.
• Adam Roberts offers a well-reasoned rant on why shortlists/finalists should be selected by juries. However, he's much too nice to fandom and "home-towning" in the process.
• Just before the fortieth anniversary of man leaving his footprints on another world, Professor Arend provides some thoughtful notes on a possible new outer-space treaty.
• Noted courtesy of SCOTUSblog: The oral argument in Muchnick (aka Post-Tasini... required, in part, because then-District Judge Sotomayór had a lot of help from incompetent lawyers in producing a virtually unintelligible mess in the trial court) is scheduled for Wednesday, 07 October 2009, at 11am.
• Now even the pro-theatre news is recognizing that uncomfortable theatres deter audiences. After spending over seven hours in airplane seating on Saturday, I can definitely relate.
• When The Economist points out that modern economic theory has failed us, you know something is seriously wrong... and that there's plenty of schadenfreude to be had.
• And now, a short rant on Amazon's Kindle fumble. This really was Amazon's own fault. For years, the company has had a policy of dealing only with the "publishers"... and accepting anything that publishers say at face value. The face value of this particular publisher, though, was less than zero; just compare the whois results for the imprint to the whois results of the purported parent. There is no excuse whatsoever for a commercial operation — like a publisher — using an anonymizing registrar. There's even less excuse for using a different one for the imprint than for the purported parent. It took all of fifteen seconds to spot this, and no money. Then add in the dubious origins of one of those anonymous registrars... and Amazon never should have allowed that publisher to sign up; it could even have rejected it via an automated script!

And that's the way it is, Monday, 20 July 2009. RIP Uncle Walter.

Labels: arts, copyright, culture, jurisprudence, mass media, miscellany, publishing, science

link to: 18:58 [GMT-6]

Road Sausages

 

I'm out on Planet California for a couple more days here, helping a colleague out on an appellate matter later in the week. Thus, this sausage collection is somewhat more organic¹ than usual.

• It is definitely another planet out here: Breakfast places don't open until 7am, and the major-chain pharmacy nearest to the hotel in LA didn't have the local paper (the much-maligned LAT) yet, because it was too early... for a morning paper. The hotel was very, very quiet, and very, very overpriced.

  But I did get a double-double animal style.

• Meanwhile, on the trip in the car up from LA, we discussed many things; cabbages and kings were not among them, but we did for a fair quantity of steamed clams afterward.
• I'm going to have to keep all sharp objects out of my colleague's reach before the oral argument tomorrow, given opposing counsel's proclivity for misrepresenting the record, the law, and reality. (I'm a little calmer; I wasn't the one who tried the case below... where, if the record and its various off-the-record sidebars mean anything, it was worse. Besides, I prefer garrottes.) It should prove interesting.

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1. Or not, being embedded in silicon, aluminum, copper, and a variety of other definitely inorganic ingredients.

   On the other hand, "organic" has always struck me as an awfully silly label for "human food" of any kind: It's all organic, as I'm not in the habit of eating either rocks or ore.

Labels: jurisprudence, life, miscellany

link to: 14:17 [GMT-6]

Uninspected Sausages

 

No USDA inspections... not that the government could competently inspect much of anything on the 'net anyway.

• Copyright Office fees are changing on 01 Aug 2009 — mostly up. Copyright registration is one of those self-perpetuating little annoyances: Once the system is in place, it's awfully hard to keep it from becoming more expensive over time, and there's really no longer a justification for it but for the government jobs it provides. Bluntly, it doesn't even serve the same purpose as a title registration system for either automobiles or real property, although you can read the more-formal notice in the Federal Register (PDF) and see if you can spot the difference.
• Electronic religion and pastopreneurship. It's not quite as honest as Richard Pryor was thirty years ago, though.
• Obama as philosopher in chief. The mind boggles.
• Some musings on the cultural construct called "freedom" that don't, unfortunately, reflect much thought about field and boundary conditions.
• Sleaze journalism isn't just limited to the celebrity-tabloids one finds at the supermarket checkout counter. Whether the UK equivalents have a better reputation is a murky question; they are, however, treated legally as "newspapers" more than as "entertainment" — which is going to have interesting repercussions for Rupert Murdoch, whose NewsCorp owns two of the worst of them. The story in the Grauniad, however, doesn't reach the most disturbing issue: Was there a parallel corporate policy in the US? That could be important because the UK statute establishes only civil liability (there's an additional "specific intent" element to reach criminal liability)... but the corresponding US (federal) statute establishes criminal liability without regard to specific intent.
• In the department of "It's called 'irony,' you morons," the RIAA is trying to stop a law professor — who teaches evidence law! — from posting recordings of depositions on the 'net... in a case about downloading of sound recordings off the 'net.

Labels: copyright, culture, internet, mass media, politics, publishing

link to: 09:39 [GMT-6]

Gambling in Chief Illiniwek's Admissions Offices

 

I think I've finally figured out why the Chicago Tribune is so bent on excoriating the "clout list" at the University of Illinois:

U of I undergraduate admissions standards — and, in particular, to (in order) the College of Engineering, the College of Business, and the College of Liberal Arts & Sciences — are now too high for any of the so-called "journalists" at the Tribune to meet... and they can't stand the idea that high school students smarter than they are must still sweat over admissions.

Just compare an open letter from College of Law faculty (gratefully referenced from Professor Ribstein's website) to the substance of this morning's inane, unsigned rant in the Trib. Anyone who has applied for admission at a truly competitive school will recognize the "highly qualified, but still waitlisted" phenomenon; I remember it from applying to law schools, and even my undergraduate days (despite my "numerical qualifications," I actually got rejected from one undergraduate school... that was toward the bottom of my list; it was hardly the end of the world). Anyone who has been to any even moderately competitive graduate school — let alone the dehumanizing professional school admissions process — will break out laughing.

Instead, the Trib wants to move Champaign two states to the east, to the undergraduate-academics black hole of the Big Ten: Columbus, Ohio. (Note: In physics, black holes are powerful indeed, and in fact a necessary consequence of — and necessary to — the universe; I just wouldn't want to be near one.) In Ohio, actual qualifications only affect whether one must wait a year or two, or perhaps get shuffled to a "satellite" campus elsewhere in the state only to receive the same bloody diploma, so long as one has fulfilled the (laughable and minimal) course prerequisites; completing two years with a 2.0 average at an Ohio community college allows transfer as of right (which is slightly less generous than it used to be in the 1970s). Comparing "popular majors" between Illinois and Ohio State tells a fascinating story in itself... as does the comparative academic qualifications. None of this is to say that there are no outstanding undergraduate students at Ohio State; it is only to say that things are... different, particularly in the undergraduate programs — and evidently more satisfactory to the themselves-non-nerd journalism majors at the Trib.

Either that, or they're still pissed off that the Board of Trustees at the U of I finally decided to relegate the racist athletic mascot to official irrelevance, despite the Alumni Association's continued dithering.

Or both.

In any event, I'm shocked — shocked, I tell you — to find politicians attempting to influence admissions at a state school. Captain Renault would be, too. If it happens at Ivy League schools, should anyone really be surprised that it happens at public universities that (for some of their programs, at least) try to be comparable? Except, of course, in the little quirk that U of I undergraduate admissions files do not contain letters of recommendation... which is precisely what those with "clout" are used to being asked for.

And this little manufactured controversy continues to take attention away from the problem of "athletic" scholarships... and admissions; and of journalistic integrity at the Trib (when some of those state officials are/were responsible for denying the Tribune Company's request for subsidies for the Cubs); and of other aspects of journalistic integrity when some of the Trib's political allies in Springfield — and, given the personalities, quite probably some of the more-frequent users of the "clout list" — are the ones responsible for the continued budgetary deadlock. But far be it from me to question the so-called "liberal bias" of the MSM. I guess that sometimes that "enlightened" self-interest really doesn't reflect Enlightenment: It's more like Counter-Reformation, and a cultural Thirty Years' War.

Labels: culture, mass media, politics

link to: 10:09 [GMT-6]

It Was a Dark and Stormy Link Sausage

 

... and the ingredients were blending their flavours as teh internets churned themselves from chopped striated muscle of castrated young steer, and of pig that had never seen daylight, and of turkey that was so stupid it wouldn't recognize daylight — and, not incidentally but not officially, the stray fingertips of illegal immigrants staffing the processing plant somewhere in Iowa — and stuffed themselves into the cleaned intestinal linings of Clarice Starling's pets, appropriately spiced and lovingly garnished with sawdust; and meanwhile, Dr Lector contemplated a self-drawn cityscape of Venice — a city that, if the government had its way, he would never see — while waiting for his dinner to walk in...

• The 2009 "winners" of the Bulwer–Lytton Fiction Contest have been announced. As usual, they're better written than the vast majority of legal writing... despite the objective being bad writing. Compare

  Towards the dragon's lair the fellowship marched — a noble human prince, a fair elf, a surly dwarf, and a disheveled copyright attorney who was frantically trying to find a way to differentiate this story from Lord of the Rings.

  (typography corrected) to

  Whether NFLPA, the NFL, and the teams functioned as a "single entity" when granting the company an exclusive headwear license and therefore could not violate Section 1 of the Sherman Act, 15 U.S.C. § 1, which requires proof of collective action involving "separate entities."

  and tell me which one is bad on purpose... and which one is just bad.

• What is bigger than a breadbox, but smaller than the gross national product of a reasonably sized underdeveloped nation? How about the amount lost through illegal downloading?
• An item in New Scientist is going to be taken as "proof" that some form of racial discrimination is hard-wired into our brains, but it means both more and less than that. First, this is a chicken-and-egg situation, and one not amenable to the simple experiment structure described there: Identifying someone as "Chinese" begs the question of whether they mean Han, or whatever... and whether the experimental subjects would agree with the experiment designers' identifications. (The less said about "Jewish noses", etc., the better.) Second, and more critically, response to someone else's pain is only one aspect; had it included response to someone else's apparent joy, or mere despair, or another nonextreme but discernable emotional state, it might be possible to draw other inferences... particularly since responding to pain is also a social construct.

  Contrast that with the weak form of the Whorf hypothesis: language strongly influences perceptions of reality. Remember, race and ethnicity are at least as much linguistic constructs as they are geno/phenotypical.

• In the department of defending Nazis' rights to free speech, the Fox reporter who reviewed Wolverine early off a pirated copy is suing Fox for being fired. There are multiple levels of ick! in this, but ultimately I have to come down on the reporter's side. As much as I disdain copyright piracy; as much as I disdain incompetent critics; hell, as much as I disdain "gossip columnists," let alone NewsCorp's corporate definition of "news" — one need only change the substance of what was "disclosed" to see why the firing was wrongful. Had it been a pirated audiotape of a conference between Bernie Madoff and his accountant(s) in 2002 — even better, a pirated unlawful wiretape recording — we'd be presenting Mr Friedman with the Pulitzer Prize... and anyone who thinks that the acquisition of information by Woodward and Bernstein was "more lawful" is more than a bit self-deceptive.

  No, the problem here is that NewsCorp also has an entertainment operation that is deathly afraid of the same thing happening to it. Imagine, if you will, the same thing happening not to a Warner/DC film, but to the astoundingly bad Alien v. Predator (a Fox film), and the reporter in question was Keith Olberman. I'm sure that Fox's executives had at least that much imagination: After all, they green-lit Alien v. Predator.

• In the department of unintentional irony, Sarah Jessica Parker will be "hosting" a "reality series" centered on contemporary fine art(ists). If I have to explain why this is ironic, it won't be ironic anymore, will it?
• Note to wingnuts: Please take a moment to remember that your hero was a fucking cigarette salesman before you begin bitching about an alumnus of SNL making the Senate a joke... or at least more of a joke than any purportedly deliberative body that proudly included Jesse Helms and Strom Thurmond as not just backbenchers, but members of the leadership, already is.

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