link to: 11:35 [GMT-6]

• Several items of late demonstrate that licensors don't necessarily win when they get judgments or settlements against infringers, or even contracts with licensees: There's still the problem of actually getting paid for patents and — especially — for copyrightable creative works like books, film, and music.

  This reflects a serious problem with the economic theory and foundation of IP transactions. Economic theory assumes that "capital is capital," and that the only costs that have to be accounted for in converting capital goods into finished products are labor and other capital actually expended in the transformation (such as energy used at a smelter). This theory, however, does not (and cannot) account for how capital with velocity greater than one — financial capital, representing investment by those seeking a return of the same nature as the investment — imposes its own translation costs into the process. Once again, this represents the missing t in economic theory.

  And all of this fits all too neatly into Charlie Stross's eighth essay on Common Misconceptions About Publishing (CMAP), which feeds directly back into the problem of nobody having a firm idea of pricing... and of the price on offer appearing, too often, to be the result of hostile negotiations between monopolistic middlecreatures whose actions are tied to that velocity/investment problem, if only because they only asset they actually contribute to the economic life of intellectual property is the power to market and distribute.

• As a foreshadowing of what's going to happen to ComicCon, DragonCon, etc. in about a decade or so, Cheryl Morgan ruminates on reforming WorldCon — the ancestral lifeform behind all of those huge media-related events. Much of what she says makes sense; however, she slides right over the biggest problem of all: The unpredictable bidding system for where conventions will be held. Not only does this bidding system (which bears a disturbing resemblance to the way the World Cup and the Olympics are awarded...) make advance planning difficult, but it results in an inexcusable skewing of the demographic of attendees away from anything that might result in building a true membership base. And she fails to grapple with the Hugo problem as inextricably intertwined, too; but then, that wasn't the purpose of her essay.

  Some might argue that I'm stretching quite a bit when I claim that this foreshadows the future of ComicCon and DragonCon. However, those conventions share one critical thing — ok, they're about a decade behind — with WorldCon: The aging demographics of the principle organizers, coupled with a complete absence of a succession plan. And therein lies two tales more convoluted and nasty than I can begin to explain, even if I were allowed to do so.

• Here's a brief essay on the politics of language acquisition that could have benefitted immensely from more second-language perspective itself, but is nonetheless an interesting gedankenexperiment. And, of course, one of the problems is a vicious cycle: We don't put teachers in our schools who are comfortable — let alone fluent — in any language other than American English (or, occasionally, Spanish)... so kids don't get exposed to other languages in a learning environment. (Well, they sure as hell did at this house, but that's another story entirely.) Thus, the kids miss out on the increased proficiency they'll get in English from simultaneously learning one or more other languages.

  That's right: The best way to learn more about one's "native" language at a structural level is to apply what one already knows about that native language to learning a different one. So those complaining that "Our kids already don't learn good enough Murikan, so we can't take the classroom time away from repetitive grammar exercises that were incorrect when they were developed fifty years ago but we haven't come up with anything better" can just go off into their own little pocket universes. Along with Mrs Grundy.

• PowerPoint is still evil. It shouldn't surprise anyone too much that slide-based presentations are often used to mask communication deficiencies and prevent the audience from grasping data that undermines the speaker's position or interests... even when (and perhaps especially when) that can get someone killed.
• I'm still not done digesting Salazar v. Buono, but my opinion on the fundamental weakness of the decision has not changed with rereading. This isn't just the parallel postulate, guys; it's assuming one's conclusion, even in the dissents. There's nothing whatsoever wrong with having critical postulates behind one's reasoning; it's just rather silly to pretend that those postulates — because they are postulates — necessarily reflect reality without exception. As Professor Hasen puts it, that leads to crushing democracy while saving kittens, which is exactly the opposite of what needs to be done: The body politic must protect the fragility of democracy quite vigorously, and trust to cultural pressure to save the kittens (or, more likely, puppies, but that's for another time).
• It appears that Holden Caufield is going to have to grow up. Or at least age. Both the underlying controversy and the decision itself demonstrate that lawyers (including judges) should not be allowed to make judgments about artistic merit.

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

link to: 13:14 [GMT-6]

In no particular order, on my first reading the Court simply did not consider (not even consider and reject):

• Does the initial sponsorship of the memorial by the VFW — with its long history of discrimination, both formally and informally, and in particular at the time the memorial was erected — undermines any later claim that the memorial is not, in fact, sectarian? I would argue that it does: And that post hoc rationalization that either conscious or unconscious speech has a secular purpose, when the speaker's contemporary speech exudes anything but a secular purpose, has no legitimate place in First Amendment jurisprudence.
• Does the meaning of speech change over time, and can the later meaning of that speech change what was once acceptable under the First Amendment into something that is not? The converse case, although it exists, is less troubling, because the government is not privileged to make speech violating the Establishment or Free Exercise subclauses that is presently inappropriate anyway. It might be more relevant in a pure-speech context; but this is not pure speech.
• Shall the meaning of speech by the government with a religious context be determined solely by adherents of the same religion and background as the natural-person individual speakers? That is, are we restricted to adopting a white-male-protestant understanding of that cross?

And in the meantime, the VFW is grossly failing in its charter-imposed duty to teach proper respect for and maintenance of the flag — an undoubtedly "proper" and "secular" purpose. (I also support flag-burning both as the proper way to dispose of worn or damaged flags and as expressive speech; but that's for another time.)

Labels: censorship, civil rights, jurisprudence, politics

link to: 11:36 [GMT-6]

• The Supreme Court has agreed to hear the state of California's appeal in Governator v. Violent Video Games (ok, the actual case is Schwarzenegger v. Entertainment Merchants Association, No. 08–1448 (cert. granted 26 Apr 2010)). This presents an interesting opportunity for the Court to make the First Amendment inconsistent yet again: It just ruled that the First Amendment prohibits broad, criminal prohibitions of depictions of animal cruelty, so it's now considering whether the First Amendment might allow broad regulation of depictions of "extreme violence" marketed to minors. Gee, ya think they'll consider whether that means the news can't show live footage of American soldiers from the Fertile Crescent? After all, if you look at the actual commercials being broadcast during the local-buy block on the national news, you'll almost always spot commercials for "family entertainment" (like that goofy pizza place with the video games) two or three times a week...
• Cory Doctorow praises (part of) SFWA and demonstrates why you must read publishing contracts before you sign them. Of course, if the UK (and Certain Other Jurisdictions) would get around to revising their libel laws to approach rationality, this would present less of a problem... for the particular contract that he was faced with... under these particular circumstances. But it wouldn't change the general advice: An author must always be prepared to say "no" and actually walk away. It's really hard to do when that's the money you were counting on to get those squealing brakes fixed, or to pay part of the overdue utility bills, but it's necessary to at least be prepared to do so nonetheless.

  And, as a hint to publishers: That list of awful things in the indemnity clause? That's what you've got media perils insurance for... or are you letting your insurer opt out of what you're paying them to insure you against and letting your insurer write your contracts? <SARCASM> Gee, that never happens in the commercial world. Insurance companies are always honest and always there for everyone. Even when one of the two leading providers of media perils insurance traces its ownership back to AIG. Or perhaps this means that you're throwing insurance premium dollars away for illusory coverage... I wonder what your shareholders will think of that? </SARCASM>

• PowerPoint is evil. I've known that for a long time: PowerPoint is merely a descendant of the slide system used in military briefings back in the day (the ones that usually resulted in somebody missing something important). But now even civilians are catching on. The more things change from the 1970s, the more they stay the same: We're still hypnotizing chickens instead of educating them. (The citation for one of my medals alludes to my prowess at hypnotizing civilian chickens... albeit not so explicitly.)

  Slides (and PowerPoint) are too often used as substitutes for actual, clear exposition on a topic, including such things as actually prioritizing what one's point is, and virtually always as means of preventing engagement with audience questions. The reflexive "that's covered on the next slide" response actually inhibits information retention and learning because it tells the audience that only the speaker's own analysis matters... and that had better not be the case in a military situation! (Or, for that matter, in a graduate-level course, given the increasing popularity of PowerPoint presentations in some law classes.) These problems are actually worse than the oversimplification and denigration of interconnection that comes from reducing speeches to expansion on a series of bullet points.

• A misleading and unfortunate title masks the value of an article exploring what academia offers to the popular arts that also deserves scrutiny by authors of print works... because, too often, what passes for reviews and criticism of popular-form literary works falls prey to the same problems as implied in the article (embarassingly often in the NYT and its Sunday Book Review itself!).

  As a case in point, consider this "review" of Orwell's Animal Farm by Christopher Hitchens... which successfully ignores a battle that was raging in the smaller, more-specialized literary criticism journals in the 1970s and 1980s (and in which I played a small part myself). There's an actual point to the "absence of a Lenin" in Animal Farm: Orwell was writing a fairy story (look at the bloody subtitle that he insisted upon), not an allegory. That is, the book is taking on a wider set of targets than the 1917 Russian Revolution; actually reading the book makes that fairly clear, and it's excrutiatingly obvious that it also invokes the French Revolution (and even, to an extent, the rise of Hitler) if one takes the time to think about it without having one's view of mid-twentieth-century history limited to "evil commies v virtuous capitalists"... and remembers that Orwell remained a committed socialist to the end. Of course, Hitchens's piece betrays not one iota of awareness of this context, whether from his own reading or from even glancing at the indices for Modern Fiction Studies, or Genre Studies, or even PMLA and ELH.

  All of which links right back into Ms Dargis's article. Hitchens would, of course, have been free to disagree with that interpretive chain (although I don't think he would); part of the point of interpretation is applying judgment. He's not, however, free to ignore evidence — discount after considering, perhaps, but not ignore. And what that, in turn, says about film criticism (particularly wrongheaded stuff like, to stay with the NYT, Janet Maslin's inattentive blathering).

• Today's sign of the apocalypse: Gay Boys at Riverdale High. I'm actually a bit surprised by this; I heard about it last week, but there hasn't been a lot of fulminating from the usual suspects yet. Maybe they've all been too busy doin' the "Minnesota Boogie" (MP3, authorized by artist). At least Salon has chimed in with a typical bit of windy pontification on the meaning of it all.
• From the department of smug, self-fulfilling prophecies: bad training for managers in arts organizations leads to bad management of arts organizations. This one goes wrong at the very beginning, though: It assumes that there is, in fact, an alternative... that is both reasonably available to managers (and potential managers) of arts organizations and will not drive away the people who need the training and works... or at least works better than the "training" we have been giving to financial/insurance-industry managers over the last quarter of a century. It's that last one that I find noncredible.

Labels: arts, censorship, culture, mass media, military, miscellany, publishing

link to: 13:37 [GMT-6]

• Stereotype begets stereotype...
• Like the stereotype that Certain Organized Religions are more likely than others to go bugfuck crazy when someone implicity (or explicitly) criticizes their dogma; there's always the cracker incident on the Western side of the divide to consider, too...
• Or, of course, one could just ponder porn not as free speech per se, but as an impetus for it. But that could never happen here... unless you actually think about what happened over at Comedy Central. Or, for that matter, the partisan political motivation for the Comstock Act.
• Didn't we just see something like this earlier this week (second bullet)?
• Anthems for intellectual property, proving yet again that doing what Weird Al Yankovic does is a lot harder than it looks...
• This is just too recursively interesting to ignore: An Untergang parody of the takedown notices for Untergang parodies (which is recursively interesting for reasons relating to its credited creator and his, umm, "interesting" views of fair use...). I still think the best ones were Cristiano Ronaldo and the law review article, but they're both down (and even if they weren't, the links would probably expire pretty damned quickly), and they're amusing as much for the snarky inside commentary under their surfaces as anything else. And, of course, the contrast between the "subtitles" and the actual speech is even more hilarious than usual.

Labels: censorship, civil rights, copyright, culture, internet, mass media, miscellany, politics

link to: 14:46 [GMT-6]

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

Judge Chin was just confirmed to the Second Circuit Court of Appeals this morning, and would ordinarily be expected to make the move (in this instance, just to a different floor in the same building) on the next scheduled argument day for that court — that is, next week.

So, what does this mean for the Google Book Search litigation, you might ask? And well you should.

Ordinarily, it means that the matter will be sent to another judge who remains on the District Court, who will then decide all outstanding motions (etc.) — including, in this instance, class certification and whether the proposed settlement may go forward. (Obviously, Judge Chin would recuse himself from any appeals, which would be taken to the Second Circuit.) I've sort of sarcastically suggested that poor Judge Daniels will get this case as a related matter to In re Literary Works in Electronic Databases Litigation — the formal title of the matter underlying Muchnick, which remains a live case (that may, or may not, be reassigned or have already been reassigned — since it's on appeal at the moment, it's still alive, but somewhat dormant, in the District Court). That, of course, would mean dealing with many of the same lawyers as in the GBS matter... What bothers me is that everyone I've mentioned this to who actually practices in New York agrees that this is the most likely circumstance.

It is theoretically possible for Judge Chin to retain the matter and "sit by designation" for GBS only. I discount that in this matter; ordinarily, when a federal appellate judge sits by designation, it is at the invitation of both Chief Judges and occurs only after the newly appointed appellate judge has had a couple of years as an appellate judge to get used to that workload. That's not to say that the workload is greater or lesser in either set of courts — just that its nature is so vastly different that there's a huge learning curve and culture shock, even for judges who have served as District Court judges for sixteen years (like Judge Chin) and served by designation on appellate panels (ditto).

So, in summary: If Judge Chin isn't pretty well already done writing his opinion(s), everything that is currently live in GBS is almost certainly going to be decided by somebody else, probably (but not certainly) Judge Daniels. And since Judge Chin still has some outstanding criminal matters requiring opinion — which, as a matter of law, come first — I don't see it happening. Of course, I've been wrong before on some of the details of this monster; this time, I really, really don't think I'm wrong.

Labels: copyright, intellectual property, internet, law practice

link to: 12:11 [GMT-6]

• I'm old enough to remember "conquering hearts and minds" as a principle of dealing with insurgency. We should just be glad that Guiding Light and General Hospital never became weapons of war in Saigon and the countryside... because that would almost certainly have violated some part of one of the Geneva Conventions. Or perhaps the Hague Convention prohibition on "dum-dum" bullets.
• Then, we bear some (not all, but some) responsibility for this incipient Lost Generation of Arabic letters, too. Hopefully, the expatriates in Beirut will turn out better than did our expatriates in Paris (a vastly overrated crowd).
• The McCarthy era isn't the only source of self-serving despicable blacklists.
• At least this Amazon brouhaha isn't an AmazonFail. It is, instead, an AmazonSuccess — and not just on civil liberties grounds, but on intelligent-governance and rational taxation grounds.
• On the legal front, the Supreme Court has granted certiorari in a grey-market-v.-first-sale case, which will hopefully clear up some confusion... by June of 2011, anyway. In Costco v. Omega Watch, No. 09–1423, the Court agreed to decide whether an authorized purchase in a foreign market of watches containing copyrighted material, followed by import into the US and resale at below the manufacturer's retail price policy, is nonetheless allowed under the "first sale doctrine" in 17 U.S.C. § 109. This should matter to authors (not to mention to musicians, screenwriters, and the industries that distribute copyrighted works) for a very simple reason: If the Court decides that what Costco did was allowed, there will be no more territorial rights (or, at least, they won't be recognizable). In the long run, that's a good thing; in the short run, "utter chaos" would be an improvement. Of course, this will also get into questions of whether the Supreme Court should pay any attention to foreign law, because the "right" (or, at least, "internationally consistent") answer requires considering a European decision on construction equipment, grey markets, and territorial exclusivity within the EU...

  Then, too, authors are frequently the targets/victims of collection lawyers... and the Court smacked the collection lawyer subindustry around a bit on Tuesday, ruling in Jerman v. Carlisle, No. 08–1200, that a "mistake of law" by a collection attorney is not the kind of bona fide error that insulates said attorney from a claim for wrongful collection activities under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.. Which means that if a collection lawyer misinterprets what he may legally do — such as ignore the Americans With Disabilities Act, 42 U.S.C. § 12101 et seq. because, as a collection attorney, he's somehow privileged to do so — he has no defense that he just made a mistake.

Labels: arts, copyright, intellectual property, miscellany

link to: 10:36 [GMT-6]

• First, in response to a couple of e-mails I've received over last Friday's comments on why "content" isn't an economic good of any kind, I see that I wasn't clear enough on one foundational aspect. If one looks at the precepts (and math!) behind classical/neoclassical economics — especially, but not exclusively, reactions to mercantilism by Adam Smith and others — one can discern one critical aspect of the definition of "goods" that usually just gets assumed away: That the transferror and the transferree agree on the nature of the transaction. They may not value it identically (that's the whole point of auctions, reverse auctions, elasticity of demand, etc.); they may have different Condorcet preferences that nonetheless result in a transaction; but they have to agree on the nature of the transaction. That's why "content" is not a good: At each step in the commercial-content-distribution process, the transferror and transferree believe different, and often incompatible, things about the nature of the transaction. That doesn't necessarily mean that there's no sale, or in a broader sense no transaction; it means that it's not a transaction in goods of any kind, but a transaction in something that — economically, anyway — is not a good. (That doesn't necessarily mean "services", either, because that's an accounting distinction and not an economic one.)

  And, in the meantime, go ponder this explanation of the distinction at the IPKat.

• On the free speech front, the Court just did the right thing and held that a federal law banning commercial filming of animal cruelty is unconstitutional, affirming the Third Circuit with an 8–1 vote. Frankly, this one shouldn't even have been that close; the law was ill-considered from the outset, and based upon reaction to something that's admittedly quite disgusting.

  Justice Alito is going to get some praise from the anti-animal-cruelty folks for his dissent, but it's a rather self-defeating bit of praise. The problem is this: If one is allowed to ban a certain kind of depiction — let's say physical abuse of children, not just to animals — regardless of context, as this law does, we will then be restricted to making policy concerning the subject matter based on anecdotal accounts. <SARCASM> And that always turns out so well... </SARCASM>

• Speaking of policies made concerning anecdotal accounts, Doonesbury is really on a roll right now with a series that demonstrates — anecdotally, but trust me when I say that (but for confidentiality concerns) I could describe real-world parallel circumstances going back three decades that I observed on active duty — why the military has no business prohibiting per se consensual homosexual orientation or conduct: It has a far more serious problem with its inability — indeed, cultural refusal — to deal with nonconsensual, abusive heterosexual orientation and conduct. I'm already cringing at where Trudeau might be going with this... because I've seen it and been unable to stop it before (due to lack of seniority).

  PTSD trigger

  Opportunity to be a REMF... and sort of promoted

  It's not what you thought

  The real context

  Looking for support... outside the chain of command

  Information limit

  Chaplain intervention

  

  Too bad the officer in question hadn't read Mel's bloody personnel jacket. Our civilian and uniformed military leadership should cringe, too... because it shouldn't require, or even invite, the intervention of someone who has no business being in the military in the first place.

  Any relationship between this item and the preceding one is purely... disgusting, but demonstrates why § 48 cannot be saved.

• Eighteen-century bloggers. Sort of. (HT: Making Light)

Labels: civil rights, culture, intellectual property, military, miscellany, politics

link to: 11:25 [GMT-6]

The piece starts off well enough, discussing the accepted definitions of rivalrousness, exclusion, and how they relate to the different types of goods.¹ In summary form, it looks something like this:

Although Ms Popova's piece doesn't go into the club/toll good distinction (it should, but it's not central to her argument) or much of the bizarre, almost non-Euclidean nonsense surrounding common pool goods, it does do a fairly good job of explaining one aspect of the economics of "content." Unfortunately, her argument falls apart entirely when one tries to discern an internally consistent definition of "content"... because, as for virtually all classical and neoclassical economic arguments, it founders on The Invisible Variable (t).

First, and perhaps most obvious, there's a huge distinction between "content" at the moment of its creation and "content" at the moment we judge rivalrousness and excludability, whatever "content" may be. This is perhaps most obvious with books: The "content" is both what the author wrought (ignoring, for the moment, editorial contributions, which ultimately make my point for me) and the physical package "containing" what the author wrought that can be grabbed from the shelves/e-book source. As I've begun discussing (and Mr Stross himself, in an incredibly useful set of posts such as this one made under the name "CMAP"), the package in which one finds the content is a nontrivial and intertwined aspect of the content. The key point that undermines Ms Popova's piece, though, is this one: It assumes that the same (both in quality and in relative magnitude, and probably in actual quantity) considerations and values apply to "content" at all times and in all potential markets, and that therefore the economic analysis is the same.²

Second, and more subtly, I'm afraid that Ms Popova's analysis of whether content is rivalrous assumes far, far too much. Perhaps the best (and most extreme) refutation of the analysis is implied by Borges's Pierre Menard — best because, in the classic tradition of reflexive refutation, the story itself defies the analysis it implies, and it's just plain fun (even translated into English). My point here is that the content is not a good of any kind for any fixed definition of content; it is only when we allow flux in that definition of content that we can begin to treat it as a good. And that, indeed, is the problem: The rivalrousness and excludability analyses assume that they are dealing with goods, just like Euclidean geometry assumes the Parallel Postulate's validity. Perhaps for most purposes that's a valid assumption; it is not, however, prescriptive or universal... and since you're reading this, and the design of semiconductors depends upon the validity of non-Euclidean geometry, you should be very wary indeed of leaping from "useful in many, or indeed most common, reference frames" to "is therefore a universal law applicable in all reference frames."

Applying the "rivalrous"/"excludable" rubric to "content" is a less-obviously useless exercise than attempting to determine the number of angels on the head of a pin... but it provides no more validity in any given reference frame, let alone the hypothetical objective reference frame assumed by classical/neoclassical economics as the foundation for proper policymaking. Neither does it acknowledge understanding of the distinction between enlightened and unenlightened self-interest that ultimately torpedoes most classical/neoclassical economic theory when it comes time to turn economic principles into policy.

In short, the problem is that "content" is not a good of any kind, and trying to force it into classical/neoclassical economic analysis of goods doesn't just assume a can opener: It assumes field and boundary conditions that are explicitly inapplicable.

1. Although my colleague Professor Solum and I disagree on what many of these things ultimately mean, and whether — as I'll argue below — any of this is even properly in the realm of economic analysis in the first place, his explanation of the orthdox view is admirably clear. So I'm stealing, albeit I've rotated the table for polemical purposes (and to match the discussion in Ms Popova's initial posting).
2. This leads into the more fundamental questions of whether content is, in fact, "scarce" (and therefore properly analyzed in a classical/neoclassical economic reference frame at all, because scarcity is the fundamental assumption of classical/neoclassical economics); whether content, if it is "scarce", is a "good"; and whether classical/neoclassical economics provides a valid model of anything that is nonrivalrous at all, much as one must question whether Newtonian physics applies to subatomic particles. And, of course, still lurking behind everything there is t, which remains unaccounted for.
3. I suppose that I could wade into the morass of behavioral economics; see, e.g., Cass R. Sunstein, Behavioral Law & Economics, for a useful introduction. One need not go quite so far, though; one need only note the failure of classical/neoclassical economics to either explain or develop adequate policies concerning bubbles. And given the recent fashionability of prestige investments in Hollywood, that one isn't far off from being directly applicable to "content"; perhaps, even, it's already there, given what has happened to a certain purveyor of alcoholic beverages that tried to become a big player in recorded music...

Labels: copyright, intellectual property, mass media, publishing

link to: 10:39 [GMT-6]

• A pox on Adobe. A necessary security update to Acrobat Reader is still causing trouble, due to Adobe's insufferable arrogance. Not only did a simply update to an auxiliary program require a reboot, but it reset all of my defaults to point to Adobe's reader (which I must use on occasion for legal documents) and added a bunch of extraneous programs to my startup routines. Hint to software providers: No matter how much you think your product is better, do not assume that users might not have very, very good reasons for their personal settings on their machines; and if you're not actually changing the operating system, there's no reason to require a reboot.

  That the Acrobat Reader update is necessary is especially ironic, given that the only reason the update is necessary at all comes from Adobe's overly enthusiastic attempts to make it nearly impossible to not use it. That is, the security flaws are all linked directly to programming shortcuts taken in the "fast loaders." (Which aren't so fast, but that's another story entirely.)

• It appears that the British Chiropractic Association is dropping its libel lawsuit against Dr Simon Singh. If true, this is good news... but still does not excuse the UK's overreaching libel laws. In particular, UK citizens should keep pressure on their MPs after the election, because — as the panel of judges itself indicated — the law would have to improve considerably to be only an ass.
• Don't think that death somehow gets you away from lawyers. And that's not just a reference to the pasty complexions and aversions to sunlight of young BigLaw associates.
• Using Twitter properly for telling stories.
• Some third-party musings on ASMP v. Google. Meanwhile, the Eleventh Circuit provides yet another reason to consolidate all copyright matters in a single circuit, ruling that the "implied license" of delivering a piece of visual art to a purchaser of the res of the art trumps the Copyright Act... even though the very existence of VARA (§ 106A) and the text of the Copyright Act state the opposite.

One final note: 15 April is a bad day in the American calendar because nobody likes paying taxes, particularly not to the federal government (which might spend them on a porkbarrel project like, say, a bridge to nowhere, or tobacco subsidies). It sure beats the alternative of daily extortion by a feudal lord or other source of authority. And for those of you who want to privatize everything, I commend you to the implications behind Marsh v. Alabama, 326 U.S. 501 (1946)... especially if you are, for any aspect of your life, not exactly like everyone else.

Labels: copyright, culture, internet, jurisprudence, politics

link to: 11:16 [GMT-6]

• Pirated goods shock horror: It's not as simple as anyone claims. Gee, you mean that conclusions that a sixth-grader could have drawn from the history of counterfeit silverware in London's East End in the eighteenth century might continue to have some validity for the internet piracy debate? And that antitrust considerations are not irrelevant (see pages 11–12, 14–15, and 22 of the full report, albeit without the "a" word)? The key point, though, is that the data that has been thrown about is unreliable.

  For example, if a consumer pays the full retail price for a fake movie thinking that it is the genuine good, an assumption can be made that a legitimate copy would have been bought in the absence of the fake product, representing a one-to-one substitution rate. However, this one-to-one substitution rate requires three important conditions: (1) the fake good is almost identical in quality to the genuine one; (2) the consumer is paying full retail price for the fake product; and (3) the consumer is not aware he is purchasing a counterfeit product. When some of these conditions are not met (e.g., the consumer paid a significantly lower price for the counterfeit), the likelihood that the consumer would have purchased the genuine product at full price is not clear.

  Intellectual Property: Observations on Efforts to Quantify the Economic Effects of Counterfeit and Pirated Goods (GAO Report 10-423) at 17. <SARCASM> But nobody would ever attempt to manipulate public debate by making untenable, unprovable assumptions and then asserting them as fact. That would be like, well, Lehman Brothers. But surely those problems — which seem tailored to physical goods like sneakers and automobile parts — don't influence our trustworthy and reliable film industry, do they? </SARCASM>

  Another example of the use of surveys is the study by the Motion Picture Association, which relied on a consumer survey conducted in several countries. This study found that U.S. motion picture studios lost $6.1 billion to piracy in 2005. It is difficult, based on the information provided in the study, to determine how the authors handled key assumptions such as substitution rates and extrapolation from the survey sample to the broader population.

  Id. at 21–22 (note omitted). I guess not.

  My point is that we can't have a non-self-determined debate on this — and ask ourselves just how much corruption is a tolerable amount of corruption — when even the data that we're using as a foundation for the debate cannot be trusted because the data-gathering method was skewed to make a point, not to understand. In a way, this is just like modern partisan politics... which shouldn't really surprise anyone, as modern partisan politics is a really, really big business.

• If TV is a cultural wasteland filled with inappropriate metaphors and intellectual nonsense, what does it say that TV might be better than film now... or that the article so proclaiming came from a publication that is part of a media empire that includes a cable-TV station, but no film studio? Or that there are two competing Big Six publishers that own both?
• Oh, by the way, the Pulitzer Prizes were announced. Congratulations to the honorees. But: Y'all might consider that in the context of the two preceding items... and puzzle over the strange absence of a Pulitzer Prize for Fiction in 1974... or even which work won for drama this year. The contrast with the shortlist (finalists) for the Orange Prize is hard to miss. If you're going to have a juried award, you simply don't give a board of directors the power to issue a judgment notwithstanding the jury's verdict: For that way lies madness.

  Of course, I'm making connections between awards of "single best" in the arts that are made far, far too soon after the close of the "eligibility period," so I'm already wallowing in madness.

• Fortunately, the Third Circuit has agreed to rehear en banc (sitting as an entire court, not in panels of three judges) the inconsistent opinions in Layshock and J.S.. These decisions went opposite directions on whether an off-campus parody/criticism of a school administrator by a student via social networking sites is properly a matter for school discipline. Unfortunately, neither opinion grapples with the underlying question, nor — due to the limited jurisdiction in question — can they. Ultimately, both cases come down to whether a student can question the acts and character of a person appointed as an authority over that student with no realistic input into that decision by either the student or his/her parents. That is, this is as much about the legitimacy and reach of authority as it is about criticism of that authority. That should sound more than a little bit like the current problems with the chain of authority within the Catholic Church (and particularly for its female members); and, for that matter, more than a little bit like the historical problems with the chain of authority in Tinker, Gobitis, and Barnette. I don't pretend that I have the answer; I can state, though, that the answers typically offered are bogus.

  And yes, this should matter a great deal to authors... especially those with, say, jobs in education; or children in education; or who give a rat's ass about censorship of their work, and in particular about courtesy imposed by authority and how that relates to the First Amendment.

• Jay Lake is having trouble deciding what he believes about the not-so-great e-book pricing debate. That's not surprising: As a math major, he sort of expects arguments to have an underlying logic and evidentiary basis, and there's none of that there (see, e.g., the first bullet point above...). The money quote, though, is this:

  Note, please, before you comment, that I am not making an argument for any particular price point on ebooks. I am also increasingly coming to favor the idea of bundle pricing, which is in line with my view of books as licenses rather than products. I think ebooks should be cheap, and possibly free if promotional considerations indicate. But that’s a decision for my publishers to make as part of their marketing process, not a natural law of information, nor an entitlement of the reader.

  I hate to break the news to the publishing industries (note the plural), but Jay is vastly in advance of you in this struggle, and you have no excuse: A third of a century ago, the legal authority behind your business changed inherently and irrevocably to a license from a sale, and you haven't managed to figure that out yet. The "sale" meme pervades your author-publisher contracts, your publisher-to-reader distribution channels, and your treatment of both authors and readers. That New York law treats purchasers better than it does licensees probably explains a great deal of your reluctance to change your meme to correspond with something approaching reality.

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

link to: 11:34 [GMT-6]

• This is so, so wrong that it can only be Monday. Someone has updated haggis to be more marketable.
• Here's another reason to avoid loud, clicky keyboards on laptops (even better than that I'll take a bloody sledgehammer to it if you're typing away on a redeye while I'm trying to sleep): they enable a listener to know what you're typing. Admittedly, this is not exactly a late-breaking news story... but the current fad for "chiclet" keyboards is just making things worse.
• Professor Kleiman laments that "[T]he only actual journalist left on TV works for the Comedy Channel." Of course, that assumes that the "press" was given its guarantee of "freedom" in the First Amendment for some reason other than, say, corporate profits flowing toward a furriner. How come immigration reform never considers Aussie "media barons" as a disfavored group of immigrants?
• Just the cognitive dissonance of these two items showing up in adjacent tabs on Monday morning is enough to make me wonder what the universe is up to: Ghandi as a sex-crazed maniac b/w premature sequelization (and that's the short link in the publication!). Then a major piece on art forgery show ups in the next tab over... at the same time I'm rereading The Recognitions, and pondering some of the goofy excesses of academic fashionability while the actual market for academics in the humanities sucks so much, is far too much. Or perhaps just typical for a Monday.
• The proper use of Twitter as a medium for fiction.
• Professor Crouch provides some insight into comparative patent reversal rates at the Federal Circuit. The short version is that reversal rates at the Federal Circuit are not substantially greater from reversal rates in any other complex litigation matter. The problem is that a patent case isn't supposed to be "complex litigation"... and therein lies a tale in itself. Bluntly, the only real solution is to get more scientists and engineers onto the federal bench in the first place, which is going to require lowering the hostility toward them at the top law schools (both in the admissions process and among the faculty when it comes time for recommendations for those all-important first jobs). And, in turn, that's going to require more law-school faculty — and, in particular, deans and chairs of hiring committees — who have been inside a working laboratory less than two or three decades ago. I don't see it happening.
• Professor Rebecca Tushnet notes that "real-person fiction" is a more-complex legal creature than one might expect. So, of course, is common courtesy... and, it seems to me, that's what should be considered in many RPF efforts: Whether the effort itself implies a courtesy to the RP; and, if so, whether that courtesy was followed. But, I emphasize, that's should be considered, not must be (or legally must be) determinative. It's not an easy issue; that's why it's fun.

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

link to: 10:16 [GMT-6]

That's right: Absent the Statute of Anne, we wouldn't have GBS litigation, or questions over who "owns" Superboy/man or Captain America, or who is entitled to what share of what revenue from the Spider-Man films, or even when cheesy ad campaigns infringe (or do not infringe) on Saturday-morning live-action cartoons. The Statute of Anne broke from tradition by assigning the initial, primary right in a work to the creator of that work — not to the patron of that work.

On one hand, this reflected technological change, specifically the printing press. Prior to Gutenberg's development of the press with movable type (and not-much-later importation of that development into England by William Caxton), reproduction of words was at the image level, and required hand-creation of either the pages themselves (with pen and ink, one at a time) or a woodcut image of the entire page for use on precessors of Gutenberg's press. The press with movable type changed the unit of reproduction from entire pages to individual letters, words, and sentences... and made quotation of others "in print" eminently possible. For a repressive government — and don't kid yourselves; perhaps only North Korea, Myanmar, and Iran are as repressive as the "average" European government of the sixteenth and seventeenth centuries — this led, of course, to serious musing on how to control dissent. The English solution was the Company of Stationers, which was formally chartered and granted a Crown monopoly in 1566 by the Star Chamber and had been in operation for some time previously.

The Company of Stationers served to control dissent reasonably well, but did less well with commercial efforts. This led, over the next century and a half, to a number of other statutory provisions that presumed — with greater and lesser degrees of both specificity and clarity — that the printer owned both the individual copies and the inchoate content of what he printed. These various statutes expired in 1694(ish), leading to a fifteen-year-long battle in Parliament — shortly after the Glorious Revolution. Many MPs of the 1690s and early 1700s had been personally insulted/imprisoned/etc. by one side or the other (and occasionally both) during and shortly after the reign of James II; this led to quite a bit of continued suspicion of the monopoly status of the Company of Stationers, with such recent examples of its "misuse". It certainly didn't hurt that one of the non-Parliamentary leaders of opposition to the Company of Stationers' monopoly was John Locke.

In turn, this led to a devolution of who had the monopoly. Instead of assigning the monopoly to the printer, it was assigned to the creator in the Statute of Anne. It took another sixty-odd years, until Donaldson v. Becket (4 Burr. 2408, 98 Eng. Rep. 257 (H.L. 1774)) to stamp out the remnants of patron control (although the modern work-for-hire doctrine is doing its best to revive it).

The key point of this hangover is this: Absent the Statute of Anne, there would be no non-upper-class freelance creators of intellectual property. The Statute of Anne's "creator-primacy" meme was later adopted in various patent statutes; even now, in the era of "big pharma" and "big industry" controlling patents, we can legitimately use "IBM's patent" as only a shorthand — the application is made in the name of the natural-person inventor(s). The greatest danger is that multiform and collaborative works are not so clearly and neatly treated... as the comic-book-character litigation noted a few paragraphs above epitomizes.

Nonetheless, open your bleary eyes and toast John Locke for making freelance creation of works economically (not to mention politically) possible. It's not always viable, but that's an argument for another time... and a warning that Millar has not disappeared from copyright law, or at least not as much as it should have.

Labels: arts, copyright, culture, intellectual property, publishing

link to: 11:14 [GMT-6]

• Justice Stevens is retiring. Thus, we have another summer of personal attacks on intelligent candidates to look forward to, and Republican use of "liberal" in the same way that they used "nigger" sixty years ago. At the moment, I'd say that Judge Diane P. Wood has a slight inside track, since (like Justice Stevens was) she's from the Seventh Circuit, and geographic diversity has a long history of playing an unpublicized role in selection of candidates for the Court. That's not what I'd prefer; I'd prefer someone who understands science from the inside, because that's the experience deficit most obvious on the Court. But then, I don't have any inside information or get to name the nominee... and Judge Wood isn't exactly chopped liver. In the slightly longer term, my concern is that the departure of Justice Stevens will leave Justice Thomas — at least for the first half of next Term — "in charge" of civil procedure decisions... and his batting average on getting those questions "right", or seeing that procedural questions control over the substance, is not very good. IMNSHO, of course.
• The American Society of Media Photographers has filed its own lawsuit against the Google Library Project/Google Book Search system (PDF). Strangely, the complaint looks an awful lot like the "better" complaint I described way back with the Authors['] Guild filed its version, including the multiple incidents of infringement, the request for injunction, and the revised class definitions.
• Barack Obama has begun to pay back (or, perhaps, forward) on that Nobel Peace Prize with the first significant nuclear disarmament treaty in far too long and substantial narrowing on potential uses for nukes. And as proof that the "traditional" media is too "liberal," the WaPo has provided the ignoramus Charles Krauthammer a continuing forum to spew his ignorant bullshit. Today, he bloviates:

  However, if the lawyers tell the president that the attacking state is NPT-noncompliant, we are free to blow the bastards to nuclear kingdom come. This is quite insane. It's like saying that if a terrorist deliberately uses his car to mow down a hundred people waiting at a bus stop, the decision as to whether he gets (a) hanged or (b) 100 hours of community service hinges entirely on whether his car had passed emissions inspections.

  Apart from being morally bizarre, the Obama policy is strategically loopy. Does anyone believe that North Korea or Iran will be more persuaded to abjure nuclear weapons because they could then carry out a biological or chemical attack on the United States without fear of nuclear retaliation? The naivete is stunning. Similarly the Obama pledge to forswear development of any new nuclear warheads, indeed, to permit no replacement of aging nuclear components without the authorization of the president himself. This under the theory that our moral example will move other countries to eschew nukes. On the contrary. The last quarter-century — the time of greatest superpower nuclear arms reduction — is precisely when Iran and North Korea went hellbent into the development of nuclear weapons (and India and Pakistan became declared nuclear powers).

  (fake paragraphing removed for clarity) Really, Mr Chickenhawk? Leave aside that deterrence doesn't work against nongovernmental entities, or against governments that celebrate martyrdom as proof of the rightness of their causes (I can only think of half a dozen of those that are striving to achieve nuclear capability). Leave aside that argument from analogy is only as good as the analogy itself... and that, unlike a nuclear weapon, a car has truly significant (and indeed primary) purposes that do not involve "mow[ing] down a hundred people." Leave aside that Iran and North Korea "went hellbent into the development of nuclear weapons" immediately upon gaining the technical and industrial capability to do so, regardless of what was happening in disarmament... and that the Iranian and North Korean efforts predate the first START talks by several years.

  No, instead you have to ask yourself a different question about deterrence: Does deterrence work when not just capabilities, but self-perceived risks, are asymmetric? There's a helluva lot of game-theory research (that, fortunately, has never been fully tested in the real world — fortunately, because the only way it could be tested is with real nuclear brinksmanship with real risk of the use of real weapons without any laboratory controls) that indicates otherwise. Every military officer who has attended a command-and-staff level school since the early 1970s (and that means virtually every line major and lieutenant commander) is at least marginally familiar with that research, Mr Chickenhawk; you're obviously not. But instead of actually asking questions about reality, you've substituted unquestioning and unquestioned ideology. That should sound a great deal more like the policy-development method of the Gang of Four, Kim Jong Il, et al. than of a freedom-loving American; and that's because it is.

  Obama's peace prize was, I contend, awarded for the promise of dialog and engagement as much as for anything else. Now he has followed through in a truly significant fashion. But that offends your sense of propriety, Mr Chickenhawk, because you believe that "peace" means "the other guys surrender to 'murikan hegemony over every aspect of their lives" — or, at least, if you have any internal consistency to your own ideology that's what you believe. And if you don't so believe, that makes your continuous accusations of hypocrisy against anyone who dares to disagree with you an instance of at best the pot calling the kettle black... and at worst something far less morally defensible. Sometimes it is appropriate for the pot to call the kettle black: Sometimes it is appropriate to assimilate part of the Other, and to admit that we each contain part of the Other. It's not appropriate, though, to deny that's what one is doing.

• For those of you who worship the memory of your slave-owning, traitorous CSA ancestors, perhaps you should consider a little bit of what they actually said they were in favor of before you continue that worship. That's sort of like "fundamentalist" religious bigots should consider reading the entirety of their holy books before they begin picking and choosing the parts with which to pillory Unbelievers. And, for that matter, that "fiscal conservatives" should look at the context of the Jeffersonian/Paineful/Thoreauvian Imperative and ask whether "because the government is doing it" constitutes "governing," parallel to "because the military is doing it" doesn't make it "militaristic." In short, context matters, even in ideology... or, perhaps, especially in ideology.
• From the mixed-ingredients-make-for-better-internet-sausage-links part of the recipe file, consider whether an author/artist's own character matters to his/her works, whether mathematicians ever forget that, and whether it's more important to be around books to build literacy than anything else... and whether that last note may indicate an unanticipated downside of the rush toward e-readers.

Labels: copyright, culture, internet, jurisprudence, mass media, military, miscellany, politics

link to: 10:14 [GMT-6]

• Please offer up some sympathy for the librarian. Now if only he preferred a workable (and, ironically enough for a Brit, less US-centric) classification system than Dewey, with its nineteenth-century flaws that put entire law libraries between 340 and 347, to name one obvious flaw... But the best line comes from a corresponding piece in the Times, in which he proclaims

  When you are growing up there are two institutional places that affect you most powerfully: the church, which belongs to God, and the public library, which belongs to you. The public library is a great equaliser.

  Or, as the case may be, refuge from the church.

• The Republican Party has more than one kind of moral bankruptcy, such as insufferable pride at the top. Like this is a surprise; or all that different from political parties everywhere... as anyone who has actually engaged any of them in conversation could attest, and they at least are elected-official versions. But being proud of only being able to say "no" without offering a constructive program of one's own is more than a bit much.

  Mr Steele, I don't hold you to a higher standard on the basis of your skin's melanin content. I hold you to a lower standard because you've chosen to be a politician... and you're still not meeting even that.

• Meanwhile, there's substantial handwringing over the FCC's loss to ComCast in front of the DC Circuit (PDF) that "strips" the FCC of the "power" to "regulate the internet." As much as I think the FCC should have that power — and over precisely the kind of things that Comcast has chosen to do, which are not bandwidth-controlling so much as they are content-controlling for a regulated monopoly — I long ago concluded that the enabling statute probably didn't reach that far. And even if it did, Messrs Powell's and Martin's ideological shenanigans as Chairmen under George III demonstrated that the FCC, more than most agencies, is subject to agency capture in an unusually blatant fashion. The statute definitely needed substantial revision anyway... and after the Janet Jackson case, this one ain't anywhere close to over.
• But the FCC's agency-capture problems aren't as bad as the Olympics... or figure skating. Just faaaaaaabulous! Yet another celebrity bio that we really don't need, don't want to read, and takes up the acquisition and marketing budgets for a dozen more-worthwhile (and, ultimately, more likely to be profitable in the long run) books. At least it's not just another needless Hollywood remake, although it's unlikely to be any more original.
• As a further demonstration that the named plaintiffs in the GBS litigation are inadequate to the task (both philosophically and, dare I say as an experienced plaintiff's side class action advocate, legally), the American Society of Media Photographers plans to file its own suit today... after the GBS named plaintiffs denied the ASMP a place at the bargaining table so they wouldn't lose control (and so their lawyers wouldn't have to share fees, but that's a sideshow present in every class action).

Labels: arts, culture, internet, jurisprudence, mass media, politics

link to: 11:02 [GMT-6]

• A study at the Center for Social Media concludes that copyright ignorance is harming scholarship in communications studies. This is not overly surprising. I've not read the whole report yet — just the executive summary on the webpage — but there appears to be one egregious omission from the potential copyright barriers to scholarship discussed in the report. That omission is best symbolized with one name: Stephen Joyce. The study appears to focus on "ignorance of the scope of fair use" without looking at the flip side: Active misuse of control not to protect income streams, or to protect the artistic integrity of works, but to squelch potential criticism of the source person or entity (not the source material). This is a fairly serious omission and, if reflected in the underlying study, undermines the validity of its data and conclusions. If it's there, though, one wonders why no mention of it appears in the executive summary.
• Today's math column is both important enough and simple enough for even a politician to understand: the concept of a "limit" as an actual definition. Financial-industry regulations, in particular, would benefit from this sort of thing — and I don't mean imposed by economists, who usually know quite a bit about mathematical tools and less about which tool fits which task.
• Here's how the Trib describes the Hair v. Hair confrontation:

  Former Illinois governor Rod Blagojevich was ejected from NBC's "Celebrity Apprentice" on Sunday, after yet another display of cluelessness, evasion and arrogance.

  Leaving aside for the moment that this equally well describes Trump, should anyone be surprised that a politician (let alone one impeached and removed from office for corruption in Illinois) is clueless, evasive, and arrogant? The real problem is that the Trib is unwilling to go back in time and examine whether the candidates that it supported for governor are any better (hint: they're not); instead, the wingnuts on the editorial board there are satisfied to imply that they were wiser, when instead their ideological predilictions enabled them to avoid public exposure this time only because their candidate lost (and, therefore, didn't get the same later examination).

• The real problem with criticism on the net — and particularly film criticism — is the continued failure of the critics to get their thumbs out. At least Roger Ebert seldom has that problem, because — unlike, say, the NYT's own critics — he's perfectly willing to say that Your Movie Sucks (not often enough, but still...). Too often, film reviews are a balance among finding something to praise, finding something to criticize, and finding something to demonstrate how much better a filmmaker the critic would be (if Hollywood would just give him the chance) or how much better a conversationalist the critic would be (if anyone really noticed her at release parties). (And yes, those gender-selective pronouns were chosen with malice aforethought.)
• Last, and probably least, a short editorial on the NCAA hoops tonight. On the one hand, it would be interesting to have the team that provided the gym for Hoosiers win the title, beating the "big" traditional power. On the other hand, Duke is at least a moderately accomplished university with above-average academic standards (even if examination of the athletes' performance appears somewhat different, or at least did five years ago); Butler... is not (despite the similar 2009 graduation rates). Of course, the sample size for these statistics is somewhat questionable for basketball, and perhaps one can question the entire methodology... because, after all, "student-athletes" are actually near-full-time employees who also attend class, at least in the revenue sports...

  I'm probably going to get pilloried, if anyone actually notices this comment, for being an elitist. So be it: I'm pro-education, and however much I enjoy watching (and enjoyed participating in) college sports, it's wrong to let that tail wag the damned dog. Further, colleges are not created equal; undergraduate programs within colleges are not created equal (e.g., the sociology program at Duke that attracts so many of its scholarship athletes); and although measuring "worth" of an individual on this basis would be foolish, one can at least make some inferences about what the various programs are encouraging in the aggregate.

  And I'm not impressed; then, I'm a Div III guy myself.

Labels: arts, copyright, culture, mass media, miscellany, politics

link to: 16:25 [GMT-6]

• Best Dramatic Presentation, Short Form (under 75 minutes)
  • Doctor Who, "The Next Doctor"; Written by Russell T Davies; Directed by Andy Goddard (BBC Wales)
  • Doctor Who, "Planet of the Dead"; Written by Russell T Davies & Gareth Roberts; Directed by James Strong (BBC Wales)
  • Doctor Who, "Waters of Mars"; Written by Russell T Davies & Phil Ford; Directed by Graeme Harper (BBC Wales)
  • Dollhouse, "Epitaph 1"; Story by Joss Whedon; Written by Maurissa Tancharoen & Jed Whedon; Directed by David Solomon (Mutant Enemy)
  • Flash Forward, "No More Good Days"; Written by Brannon Braga & David S. Goyer; Directed by David S. Goyer (ABC)
• Best Dramatic Presentation, Long Form (75 minutes and up)
  • Avatar; Screenplay and Directed by James Cameron (Twentieth Century Fox)
  • District 9; Screenplay by Neill Blomkamp & Terri Tatchell; Directed by Neill Blomkamp
  • Moon; Screenplay by Nathan Parker; Story & Directed by Duncan Jones (Liberty Films)
  • Star Trek; Screenplay by Robert Orci & Alex Kurtzman; Directed by J.J. Abrams (Paramount)
  • Up; Story by Bob Peterson, Pete Docter & Thomas McCarthy; Screenplay and Co-Directed by Bob Peterson & Pete Docter (Disney/Pixar)
• Best Short Story (under 7,500 words):
  • N.K. Jemisin, "Non-Zero Probabilities" (Clarkesworld 36 (9/09))
  • Kij Johnson, "Spar" (Clarkesworld 37 (10/09))
  • Will McIntosh, "Bridesicle" (Asimov’s 1/09)
  • Mike Resnick, "The Bride of Frankenstein" (Asimov's 12/09)
  • Lawrence M. Schoen, "The Moment" (Footprints)
• Best Novelette (7,500–17,500 words)
  • Paul Cornell, "One of Our Bastards Is Missing" (The Solaris Book of New Science Fiction: Volume Three)
  • Eugie Foster, "Sinner, Baker, Fabulist, Priest; Red Mask, Black Mask, Gentleman, Beast" (Interzone 2/09)
  • Nicola Griffith, "It Takes Two" (Eclipse Three)
  • Charles Stross, “Overtime” (Tor.com 12/09)
  • Rachel Swirsky, "Eros, Philia, Agape" (Tor.com 3/09)
  • Peter Watts, "The Island" (The New Space Opera 2)
• Best Novella (17,500–40,000 words)
  • Kage Baker, The Women of Nell Gwynne's
  • Nancy Kress, "Act One" (Asimov's 3/09)
  • Ian McDonald, "Vishnu at the Cat Circus" (Cyberabad Days)
  • James Morrow, Shambling Towards Hiroshima
  • John Scalzi, The God Engines
  • Charles Stross, "Palimpsest" (Wireless)
• Best Novel (over 40,000 words)
  • Paolo Bacigalupi, The Windup Girl
  • China Miéville, The City & The City
  • Cherie Priest, Boneshaker
  • Robert J. Sawyer, Wake
  • Catherynne M. Valente, Palimpsest
  • Robert Charles Wilson, Julian Comstock: A Story of 22nd-Century America
• John W. Campbell Award for Best New Writer (officially, not a Hugo; for all practical purposes, a Hugo)
  • Saladin Ahmed
  • Gail Carriger
  • Felix Gilman
  • Seanan McGuire
  • Lezli Robyn

Congratulations to all of the nominees. Once again this year, I'm neither a voter nor a nominator for these awards due to the WSFS's antiquated mechanisms and "qualifications." I also thoroughly expect — indeed, virtually know — that my personal preferences won't be reflected in the final voting. But it really is an honor to be nominated... and this year I see only three substantively inappropriate works nominated out of thirty-eight nominations, which is pretty damned good for a popular-vote award (hell, it's pretty damned good for a juried award — just look at last year's Pulitzers).

Labels: arts, culture, mass media, publishing

link to: 11:36 [GMT-6]

It's not about race, or nationality, or ethnicity. It's about Other. Today, I get to be Other, because here in East Central Redneckistan I can't go on with my life without associating with the Other. If a radiator hose blows, I can't get the part, or anyone to install it. If I need a prescription filled, almost all of the pharmacies in town that are ordinarily 24/7 are not for today, and/or understaffed; and there's no medical care available but for an ER.

So, instead, we're going to a Palestinian restaurant, followed by a trip to an Indian grocery. (But not the library, because that's closed.) Then we're going to sit around reading subversive literature and watching mildly subversive films (an annual event). And maybe, for the elder remora, doing some homework for a class devoted to understanding repression of the Other while we drink our tea.

Labels: culture, life, politics

link to: 11:14 [GMT-6]

The elder Abrahamic religion is spending the whole week denying itself leavening, overcooking tasty lamb, staying in after dark, and celebrating the death of the first-born sons of Egypt... except for their own, since (according to the legend) they were living in Egypt at the time. It's also an excuse to slow down work and payment if anyone in a given department is Jewish, although that's more a Western imposition of cultural constructs. Every bloody year, at this time of year, publishers refuse to make payments that are otherwise (over)due until after Passover if even one person in the accounting department is Jewish. And meanwhile, it's all schadenfreude: That no matter how bad their lot, others are dead (or merely dying of starvation after the tax authorities locusts destroy the harvest). On the whole, this isn't a very endearing holiday.

Neither is Easter. Although it doesn't always overlap so directly with Passover, Easter (and the timing of Easter) involves slaying someone else who isn't "us": A rabbinical figure who was purportedly the son of Jehovah (YSMV¹). Then, too, "Good Friday" is the day that the "human version" was killed; it seems to me that would be "Bad Friday," but what do I know? Worst of all, though, the religion(s)² — with the possible, but not entirely consistent, exception of some of the less-literal Mennonites — worship a centuries-later compilation of noncontemporaneous, incomplete, politically oriented and motivated anecdotes about the central character... and then further twist things. (It's as if Justice Scalia's disdain for legislative history was a central tenet of theology.³ Wait a minute: I think that's where he got it!)

In any event, things get really bizarre when considering the date of Easter this year: April 4. And that brings up the greatest martyr-figure in twentieth-century American history, whose very name is a reference to incredible religious corruption and bloodshed. Only if April 4 had been Good Friday could things have been more... interesting; but that happens considerably less often. But this year, Dr King's death falls on the celebrated date of a resurrection, at a time of increasing racial tension here in the US (caused/led by currently disfavored political "leaders" jockeying for positions of secular power who seek to portray themselves as entirely marginalized).

A bizarre few days however it's calculated here in the West. I won't even try to note that it's just as bad, if not worse, in other cultural contexts; as the census forms make clear, we're not supposed to acknowledge that anyway. The forms have no way to indicate "mixed race" (a social, not biological, construct), and require anyone whose ethnicity comes from the Fertile Crescent/Eastern Mediterranean to choose between "African" and "Asian." I'm sure that's immensely comforting to Egyptian Arabs, Persians, and Armenians. Given the current sociopolitical problems in that region, and the increasingly discredited "orientalist" meme (which still has a few insights to offer, so long as they're kept in context), this seems a pretty dumb decision... and feeds right back into the particular chain of deaths celebrated this week and snarkily referenced in this post.

1. Your spelling may vary.
2. I'm not entirely certain whether, given such demonstrations as the First Thirty Years' War and the treatment of Mormons, Seventh-Day Adventists, etc. by the so-called "mainstream," it makes sense to group all JC-worshippers as a single religion, or multiple ones. Now throw in subordinate worship of/respect for "saints," "prophets," and hierarchs (past and present) and it gets really interesting from a structuralist perspective.
3. One of my favorite examples is the imprecation that one must be prepared to forgive those who have sinned against one not once, but "seventy times seven" times (Matthew 18:22). One need not be a Kabbalist to decipher this: Just looking at what "seventy" means in the rest of the text — and applying a little understanding of figurative language — is enough to reject the extremist interpretations. This "legislative history" of seventy is also confirmed by other, non-Biblical documents of the three centuries each side of the numerical divide (0bc): It's a reference to "a lifetime." And yes, this is relevant in the next paragraph...

Labels: culture, politics

link to: 12:04 [GMT-6]

• The joke here is that it's such a surprise, and so long in coming: Simon Singh may actually present a defense of "opinion based on truth!" against libel charges in the UK. One of the absolute disgraces of the UK legal/social/communications system is that — unlike virtually every other cause of action — once a libel accusation is made, the burden of proof shifts to the defendant. It's a pretty serious problem when even the judges think it's a crock. It's as if some redneck could yell "you lie!" at a speaker and legitimately shift the legal burden onto the speaker to prove the absolute, literal truth of everything the speaker said and implied. Wait a minute...
• There's no joke here, though: Madisonville, Texas embraces ignorance as an educational model. This exposes the cultural meme underlying opposition to education in a rather interesting way. The wingnut embrace of "total local control of education" makes sense if, and only if, what those parents want for their children is exactly what those children already have... perhaps a bit more, but nothing different. In other words, it's a reification of the sixteenth century, when despite the legal freedom to move and to take up a different trade, over 95% of the population of England lived, worked, and died within ten miles of their place of birth. Just a hint, guys: This ain't your father's sixteenth century no more.

  Personally, I'd characterize this as institutionalized child abuse, but that all too accurately describes the entire pre-college education system in this country anyway...

• There's no joke here, either: DoJ loses on unlawful "antiterrorism" wiretaps... of lawyers. Sorry, guys, but that displays Elmer Fudd's tactical acumen in the first place. Not only was it not duck season, but you were actually shooting at Taz. And missed. Wiretapping lawyers is an incredibly stupid idea because even your own lawyers will at least subconsciously recoil... if they're worth a damn in the first place.
• Of course, the legal profession is simultaneously engaging in classic restraint of trade tactics in trying to perpetuate state regulation of attorneys in a national market for legal services. That way, the feds can't bust 'em for schemes that cross state lines... and the states won't care. Just like the present.
• On the health front, the Three Blind Mooses might be a health menace, as rumors abound that they're blind because they couldn't tell the difference between methanol and ethanol. Spokespeople at the big house attempted to comment, but their speech was so slurred that nobody understood.
• A bunch of stories about the misnamed "agency model" for e-book sales. The joke here is that the various idiots bloviating on this are serious... and don't understand that they're not talking about agency. At all.
• They might be talking about authors who are entirely zombie-like (and not just due to their irregular hours and inability to afford food).
• But not all is bad in the world of e-books: The upcoming Twilight novella, The Short Second Life of Bree Tanner, will be free on the 'net. Or maybe that is a bad thing... I can almost guarantee that the server at www.breetanner.com will be repeatedly crashed on 05 June, and probably well before then.
• And my colleague Charlie Stross's new career path isn't as far from a joke as one might think... and neither is this other possible next book.

Labels: jurisprudence, law practice, miscellany, politics, publishing