![[self-portrait]](http://1.bp.blogspot.com/_aph-FWKPAtw/Sb7dbBwgg0I/AAAAAAAAAAU/xefH94KcXQA/S220/LawShark5204a.jpg)
Scrivener's Error| null | |
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Scrivener's Error |
Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting. |
link to: 18:04 [GMT-6]
These link sausages are mostly of the "biter bit" variety... which has nothing whatsoever to do with long pig. I think.
We're no longer in Alexandria, and it might behoove Mr Kahle (et al.) to recall that the Library of Alexandria obtained many of the works in its collection by force and involuntarily from the owners... just like he's doing.
Labels: arts, copyright, culture, intellectual property, internet, jurisprudence, politics, publishing
link to: 12:37 [GMT-6]
Lots of remora and personal duty today — so much that there won't even be a World Cup update later (I'm writing this in a waiting room, and missing major portions of both matches).
Authors are not employees, and therefore may not collectively bargain, without running afoul of the Sherman and Clayton antitrust acts. Conversely, due to the evisceration of enforcement concepts based on size and market position starting with the Reagan administration, the publishers (effectively) can, because "conscious parallelism" among a limited monopsony market no longer (effectively) violates antitrust law.
Thus, in the long run, I expect that the industry is going to deal with Wylie (and his clients) by calling his bluff; and, sadly, it is only a bluff, based on contemporary accounting memes as they apply to the publishing activities of publicly held media conglomerates. Wylie represents a number of prominent authors that publishers would love to keep their grubby little mitts on, but there are more where they came from... and, in the crazy world of publishing accounting, it's starting to make more sense to cut off authors than to negotiate with them.
[T]he “freedom” of the press really means that it depends on vested interests and largely (through its advertisements) on the luxury trades. Newspapers which would resist direct treachery can’t take a strong line about cutting down luxuries when they live by advertising chocolates and silk stockings.
That this is a better situation than overt government and/or religious censorship, or direct capture by vested interests (usually those who own the luxury trades!), does not make it good enough.
Labels: censorship, civil rights, politics, publishing
link to: 15:30 [GMT-6]
Once again, I missed good parts of these matches with remora duty. But they did have a common theme: A confident, well-organized, high-skill team toying with an opponent without quite enough justification. In the first match (Netherlands 2:1 Slovakia), the vastly superior Netherlands tried playing with its food and could, on a different day, have suffered an embarassing draw leading to extra time. The Dutch 'keeper bailed out some sloppy defending more than once.
In the evening (afternoon, CDT) match, Brazil never really got out of second gear... but that was sufficient to reach a 3:0 result over Chile. At least Chile came out and tried to take the game to Brazil for the first fifteen minutes or so, but Chile never looked as dangerous as Slovakia had earlier, while the Brazilians just brought too much offensive swagger and extravagent individual skill. Once Chile stopped to take a breath, the Brazilians were mercilous for a few moments in killing off the match.
The one interesting thing about these two matches today is that both of the winning sides revealed virtually identical tactical flaws: They are prone to leaving their outside defenders isolated. It will be interesting to see how that plays out in the delicious Netherlands v. Brazil quarterfinal coming up... because Brazil's outside defenders are better attackers than are the Dutch, but conversely the Dutch outside defenders are individually better at defense. Both teams play a very similar 2-7-1 system, with two out of the midfield mob freely playing all across the front just behind that single striker. And, in a way, that system betrays national stereotypes for each team that have been out of date for at least a decade: The Dutch haven't played a flat back four since the early 1990s, and the famed "attacking fullbacks" disappeared from the Brazilian national team after the 1994 World Cup (and their defensively suspect successors were viciously exploited by the French in 1998... and the US last year at the Confederations Cup).
It should be a fascinating match. If it ends up in penalties, my Euro is on the Dutch: I have not been as impressed by Júlio César in the Brazilian goal as the commentators have, and particularly not on the basis of today's matches.
link to: 11:00 [GMT-6]
Before going face-first onto the sausage platter, this last scheduled day of the October 2009 Term, two deaths to note: Martin Ginsburg, husband of Supreme Court Justice Ruth Bader Ginsburg; and Senator Robert Byrd (D-WV), one of the primary reasons that the Senate should have a mandatory retirement age (due to his abuse of the system, regardless of my occasional agreement with his ideology).
As a matter of principle, I think the Court's dismissal of the militia clause two years ago in Heller leads almost inevitably to this result... and is wrong procedurally, historically, linguistically, and in substance. That said, this was a predictable result, despite the furor. It took the Court over 200 pages (!), including the dissents, to reach this result, which demonstrates all too well the principle weakness of stare decisis when it becomes stagnant and depends upon wrenching principles from their contexts. I think Justice Stevens implicitly points out this difficulty at the beginning of his dissent:
In District of Columbia v. Heller, 554 U. S. ___, ___ (2008) (slip op., at 1), the Court answered the question whether a federal enclave’s “prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution.” The question we should be answering in this case is whether the Constitution “guarantees individuals a fundamental right,” enforceable against the States, “to possess a functional, personal firearm, including a handgun, within the home.” Complaint ¶34, App. 23. That is a different — and more difficult — inquiry than asking if the Fourteenth Amendment “incorporates” the Second Amendment. The so-called incorporation question was squarely and, in my view, correctly resolved in the late 19th century.
And so it goes.
And so mob rule is safe until Monday, 04 October 2010, unless the Court does something odd based on its conference later today (the results of which will be announced tomorrow). I sort of doubt that, with an impending vacancy and no opportunity for the new justice (presumably General Kagan, but not guaranteed) to participate in deciding whether to decide.
Labels: civil rights, intellectual property, internet, jurisprudence, politics, publishing
link to: 16:24 [GMT-6]
Not much to say today — due to remora duty, I only got to see the second half of Germany's crushing of England (although I did see the replay, and Lampard's goal should have been given... and would have completely changed the way the game progressed) and the first half hour of Argentina's mauling of Mexico (and yeah, the first goal was clearly offside). Really not a good day for referees and assistants, from what I did see...
Which leads back into my long-held belief that if FIFA wants to avoid officials screwing things up, it needs to both provide them with available technical support (such as, say, a goal-line camera or sensor, similar to what professional tennis has been using for line calls for over a decade) and upgrade them by plowing some of that money that FIFA is making on the world cup into developing officials. The referee runs more than do any of the players... and gets paid less than their personal assistants. Not only does that invite corruption, but it drives many potential referees away from the game, especially since they know they won't get the help they need. The one-referee system was established in the nineteenth century, guys. Even the restricted basketball court has gone from two to three referees!
link to: 12:53 [GMT-6]
Last week, Judge Stanton issued a summary judgment opinion in the Viacom v. YouTube case1 that gave YouTube the benefit of the DMCA's safe harbor. This opinion means both more and less than it seems to, and it's taken several days of thought (and a little bit of rereading of materials from Ellison) for me to be able to explain what I think is going on. The short version is that Judge Stanton screwed up some of his analysis... but that on these facts as presented it was a harmless error, because the safe harbor should probably have applied. I reserve my right to change my opinion, though, after the sealed parts of the record are released over the next few weeks!
First, though, a few notes on what the opinion does not do:
This seems to beg the question a bit, though: What does Judge Stanton hold?
The background for Judge Stanton's ruling comes from the DMCA's safe-harbor provision, 17 U.S.C. § 512(c). (Unlike in Ellison, there was little controversy over whether these were "stored" or "transient" communications.) Judge Stanton framed the issue that he was actually deciding like this:
[A] jury could find that the defendants not only were generally aware of, but welcomed, copyright-infringing material being placed on their website. Such material was attractive to users, whose increased usage enhanced defendants’ income from advertisements displayed on certain pages of the website, with no discrimination between infringing and non-infringing content.
* * *
However, defendants designated an agent, and when they received specific notice that a particular item infringed a copyright, they swiftly removed it. It is uncontroverted that all the clips in suit are off the YouTube website, most having been removed in response to DMCA takedown notices.
Thus, the critical question is whether the statutory phrases “actual knowledge that the material or an activity using the material on the system or network is infringing,” and “facts or circumstances from which infringing activity is apparent” in § 512(c)(1)(A)(i) and (ii) mean a general awareness that there are infringements (here, claimed to be widespread and common), or rather mean actual or constructive knowledge of specific and identifiable infringements of individual items.
Slip op. at 6–7. (The failure to properly designate an agent was AOL's downfall in Ellison.) In a metaphysical sense, Judge Stanton has framed the inquiry as "What does it take to be 'aware' of infringing material on one's own system?"
And now, we're off to legislative-history land. Judge Stanton does make what is probably a harmless error... but, as this opinion is going to be cited repeatedly by people (including, unfortunately, judges) who have not read every word of the voluminous legislative history of the DMCA, I'm throwing up a reference here to point it out. Very simply, the error is this: Judge Stanton draws the wrong conclusion from the "red flag" language in the committee reports2 by failing to note the coordinate language concerning "sophisticated pirate directories" found slightly later in the House report, and by failing to reconcile that with the "holders need not monitor" counterpart of "ISPs need not monitor." In short, he makes a too-broad general statement that will no doubt be cited for particular propositions that are not what he is considering on this record.
That said, this case really comes down to distinguishing away Grokster and Napster, and in particular distinguishing between "significant infringing activity" and "rampant, dominating, intentional infringing activity." That's what Judge Stanton's opinion really does:
[] I make no findings of fact as between the parties, but I note that plaintiff Viacom’s General Counsel said in a 2006 e-mail that “… the difference between YouTube’s behavior and Grokster’s is staggering.” Defendants asserted in their brief supporting their motion and Viacom’s response does not controvert that:
It is not remotely the case that YouTube exists “solely to provide the site and facilities for copyright infringement.” … Even the plaintiffs do not (and could not) suggest as much. Indeed, they have repeatedly acknowledged the contrary.
The Grokster model does not comport with that of a service provider who furnishes a platform on which its users post and access all sorts of materials as they wish, while the provider is unaware of its content, but identifies an agent to receive complaints of infringement, and removes identified material when he learns it infringes. To such a provider, the DMCA gives a safe harbor, even if otherwise he would be held as a contributory infringer under the general law. In this case, it is uncontroverted that when YouTube was given the notices, it removed the material. It is thus protected “from liability for all monetary relief for direct, vicarious and contributory infringement” subject to the specific provisions of the DMCA.
Slip op. at 22–23 (citations omitted).
This is consistent with the "pawn shop" model that I've been pushing as the appropriate framework since the bill was first drafted. In the real world, there is probably no pawn shop in the nation that does not have a piece of stolen merchandise somewhere in it. Conversely, there are some pawn shops that are little more (if that) than fencing operations, knowing that virtually everything in the shop is stolen merchandise... even if the pawn shop owner carefully avoids ever learning from whom, or asking questions about particular pieces. On the facts of Grokster, Napster, Aimster, etc., those pawn shops were fencing operations. On the facts presented to Judge Stanton in this matter, YouTube is not, and a simple examination of virtually any search on YouTube demonstrates that that is a tenable conclusion... if only because so many of the clips on YouTube have arguable fair-use defenses to the particular clip. In the realm of "pawn shops," this is closer to determining whether the penurious son was really authorized to pawn his grandmother's silver candlesticks than to whether the known thief walking in with fine jewelry probably stole it in order to pawn it... and remembering that the question at issue concerns not the bailor's potential liability, but the pawn shop's.
Too, there's another reason that YouTube is different — for most purposes — from the music-infringers: Even at its highest quality, YouTube's material generally is not a complete, commercial substitute for the original... and those instances in which it is often seem to be those with the best fair-use claim. Consider, for example, the piece I've linked with this paragraph (using a custom link that doesn't pull in a lot of other BS). This is a relatively high-technical-quality audiovisual interpretation (sort of Ken Burnsish) of a relatively high-technical-quality audio recording. Whether it would have a winning fair use defense or not, it certainly has a tenable one... particularly given the result earlier this morning in the Germany v. England match at the World Cup <vbeg>. Judge Stanton's decision implies that when a high-enough proportion of material hosted by an ISP has a colorable fair-use defense, and that ISP has otherwise followed the DMCA's rules, the ISP is not a mere fencing operation, but an actual pawn shop operating a legitimate business in a dubious business environment...3 and that on these facts, YouTube was such a pawn shop, and therefore entitled to the DMCA's safe harbor.
The bottom line of Judge Stanton's opinion is that the pawn shop isn't liable for the sins of the son, however upset granny is about the candlesticks. That says nothing, however, about whether Inspector Lestrade might not haul said son off for "rigorous interrogation"... and it provides no protection at all for Jack the Fence's operation two streets over.
On this factual record, that does not appear to be a significant error. On most factual records, though — and Ellison was an example — it would be.
Labels: copyright, intellectual property, internet, jurisprudence, mass media, publishing
link to: 16:31 [GMT-6]
Another zombie day at the World Cup: All of the critical incidents (and most of the goals) came through a lack of braaaaaaaains.
Uruguay 2:1 Republic of [South] Korea — This game became a problem for South Korea as soon as they went behind; they have a significant tendency to overdo things trying to catch up (they're impatient), and that leads to later letdowns. That's exactly what happened in this match. There were three mental errors on the way to that first goal from Uruguay: Bad positioning by a lazy midfielder (one of the Parks, I couldn't quite see which one) left an open entry pass down the flank; the goalkeeper committed low too early when Forlan had no way to shoot, allowing a lofted ball over him; and no defender followed Suarez through to the line, allowing him an uncontested clean look for a rather simple (if not necessarily easy) finish. South Korea's answering goal came when Muslera foolishly attempted to punch away a looping ball that was a defender's responsibility, leaving Lee an open goal for his header. Uruguay's winning score had an element of luck to it, rather than mental failure. The referee maintained control throughout the match; fortunately, both teams were more interested in demonstrating their superiority at the game than anything else, so he was never really challenged. B/B/A-
US 1:2 Ghana — This time, the US was the zombie squad... and, unusually, one of the zombies was Bob Bradley. He made an ill-considered change to the side, putting Ricardo Clark back in in central midfield after his rather brainless performance against England... and paid the price, as Clark met expectations to allow the first goal. Howard should, perhaps, have done better with Boateng's shot, but he had been left completely exposed by Clark's failure to mark up (after a foolish, unnecessary pass in the first place). The US did well to fight back into the match; there was no question about the penalty, and a fussy referee might have awarded another one later. But the US fell asleep again at the beginning of extra time, and another of the usual suspects (Bornstein) was at fault for the eventual winning goal. The referee did a decent job being even-handed, but was too lax with timewasting; that said, the US had only itself to blame for being behind in the first place. B-/B/B
That sets up the first quarterfinal matchup: Uruguay will play Ghana on Friday.
link to: 15:23 [GMT-6]
The last pair of groups finishes today.
Group G:
| Brazil | 5 | +2 |
| Portugal | 5 | 0 |
| Ivory Coast | 3 | 0 |
| People's Republic of [North] Korea | 0 | –2 |
after Brazil 0:0 Portugal and Ivory Coast 3:0 North Korea. This group was virtually locked in place before the matches; the only possible changes would have required either Portugal to defeat Brazil (which would only have changed seeding order for the round of sixteen) or a 9-goal differential swing between Ivory Coast defeating North Korea and Brazil defeating Portugal. That just wasn't going to happen. And the Brazil-Portugal match reflected it: Although neither team played particularly negatively, they both played safety-first and to avoid self-injury. That led to a few moments of individual skill, but little teamwork... and I don't find that all that entertaining. The referee remained largely anonymous, although he did a nice job on that early dive to keep things from getting out of control. B-/B-/A-
Group H:
| Spain | 6 | +2 |
| Chile | 6 | +1 |
| Switzerland | 4 | 0 |
| Honduras | 1 | –3 |
after Chile 1:2 Spain and Honduras 0:0 Switzerland. I switched back and forth between these matches, so no grades. And it's a good thing: The "pragmatism" in the Chile : Spain match over the last ten minutes had some echoes of the 1982 Germany : Austria fiasco. Conversely, Switzerland's pathetic impotency in front of the Honduras goal meant that it was possible for Chile and Spain to just kick the ball around in midfield, as both were going through.
This leads to these round-of-sixteen matchups:
Brazil : Chile (28 June)
Spain : Portugal (29 June)
and a full single-elimination bracket that looks like this (pre-tournament FIFA rank in parentheses):
| 16 | 8 | 4 | final | 4 | 8 | 16 |
| Uruguay (16) South Korea (47) |
Argentina (7) Mexico (17) |
|||||
| (14) US Ghana (32) |
Germany (6) England (8) |
|||||
| Netherlands (4) Slovakia (34) |
Paraguay (31) Japan (45) |
|||||
| Brazil (1) Chile (18) |
Spain (2) Portugal (3) |
which exposes the FIFA rankings for the charade they are. Here's what happened by confederation:
| Confederation | Qualified | Round of 16 |
|---|---|---|
| Europe | 13 | 6 |
| South America | 5 | 5 |
| Africa | 6 | 1 |
| Asia | 4 | 2 |
| North/Central America | 3 | 2 |
| Oceania | 1 | 0 |
So much for the inherent superiority of European national teams.
link to: 15:24 [GMT-6]
Another pair of groups finish today.
Group F:
| Paraguay | 5 | +2 |
| Slovakia | 5 | 0 |
| New Zealand | 3 | 0 |
| Italy | 2 | –2 |
after Slovakia 3:2 Italy and Slovenia 0:1 England. I watched the Slovakia : Italy match, and I was appalled. Italy deserved this result... or worse. The side showed no energy, no imagination, no fire for the first seventy minutes, but needed to win. This is at least as much a coaching failure as a player failure, although the players certainly did a poor job. Conversely, Slovakia looked focused, played focused, and put away its chances. The referee had an uneven match, but largely got things right and did a decent job of keeping tempers from flaring too badly at the end of the match; the fourth official, though, was rather negligent on the sideline regarding both added time (in both halves, for that matter) and bench management. B+/C/B+
So the two finalists from the last World Cup in 2006 not only failed to go through to the round of sixteen, but were on the bottoms of their respective groups (and by a substantial, if subjective, margin, were the worst teams in their groups). This will have no effect on FIFA's Eurocentrism, but it bloody well should. On to Group E:
Group E:
| Netherlands | 9 | +4 |
| Japan | 6 | +2 |
| Denmark | 3 | –3 |
| Cameroon | 0 | –3 |
after Cameroon 1:2 Netherlands and Japan 3:1 Denmark. I watched the critical Japan : Denmark match, which never looked much in doubt. Japan came out playing well, Denmark came out playing enthusiastically but not with intelligence. And that was enough, particularly after two well-struck free kick goals from Japan (neither against the run of play). The Danes didn't improve much as the match wore on; even their good chances were somewhat dodgy and the Japanese defensive system was never in danger of breaking down. The referee made a lot of small mistakes, but nothing major — the penalty in favor of the Danes was a soft call, but within the law. A/C+/B-
This leads to these round-of-sixteen matchups:
Netherlands : Slovakia (28 June)
Paraguay : Japan (29 June)
link to: 11:37 [GMT-6]
I don't even have time for publishing news today, nor enough time to really take apart the significant copyright decision (Viacom v. YouTube, which — on first reading — was wrong at a fundamental level on the one hand, but reached a possibly defensible result on the particular facts... given that the only real access to the facts that we have is the formal submissions of the parties and the judge's resolution of their conflicting statements of facts). That said, here are two big, fat, hairy internet link sausages (even bigger, fatter, and hairier than yesterday's):
Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, or the Governor or legislature of any State, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.
Of course, this also applies to all of the other US officers who were interviewed, presuming they were accurately quoted (and, although Rolling Stone isn't exactly a paragon of journalistic virtue, it has a much better track record in that regard than virtually any US-based unit of NewsCorp — Fox News, the New York Post, etc.). And even if the statements actually made (if what appears in the RS article is either sufficiently out of context or misquoted or misattributed) aren't quite "contemptuous words," the underlying attitude violates Article 133
Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct.
because the oath of commissioning requires an officer to
I, (state your full name), having been appointed a second lieutenant, in the United States (branch of service), do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office upon which I am about to enter, so help me God.
Far be it from me to criticize an unrestricted press for seeking to understand what is going on. And far be it from me to say that officers should be reluctant to hold their own opinions; or to discuss actual, criminal conduct in a lawful manner. But you do not criticize the civilian leadership because its policies or practices are not those you would prefer. As an officer, you either put up with the differences and follow orders, remembering that the entire purpose of a representative democracy celebrates reaching a course of action after vigorous debate... or you resign your commission. And that goes for "gays in the military," and for "political indoctrination in the military," and for "we should invade China instead of stopping at the Yalu River," and for any other policy disagreement. If the civilian leadership gives you an unlawful order, you're entitled to disobey it... but you'd better be right. When it got to the point that I could no longer maintain confidence in the senior uniformed and civilian leadership during the 1990s (primarily over overt political and other discrimination, not over policy differences), I resigned my commission. If McChrystal really held the views attributed to him, and felt strongly enough about them that he was willing to speak to a reporter about them, he should have resigned. The same goes for his chief of staff and the other senior staff members quoted/paraphrased in that article.
There's another aspect of this sordid state of affairs that has not gotten adequate attention: Why did McChrystal (et alia) think that they were entitled to state these decisions? Bluntly, because they were trained to do so by unprofessional officers in the post-Vietnam era. If nothing else, one of the subsidiary effects of the McChrystal situation needs to be a truly searching reexamination of the military academies. I contend they should be abolished, but I doubt that my views will get any attention. Short of that, at minimum the academies (and, for that matter, the professional military education schools — "officer grad school") need both personnel and curricular housecleaning. I'd start by eliminating the unjust veneration of MacArthur at West Point (Korea wasn't the first, or even most-disturbing, indication that he was unfit for high command) and proceed from there.
The Skilling matter also involved questions about fair jury selection, while the Black matter also involved questions about the form of jury verdicts. These are highly technical and fact-specific issues that seem to me less meaningful than the core question of whether the crime(s) with which they were charged passed constitutional muster... and they were resolved against the respective corporate-officer sleazebags in any event. Being a corporate-officer sleazebag, though, is not a criminal offense; the problem here is that the civil side has been so procedurally eviscerated over the last thirty years that criminal charges are often actually easier to prove, which just reinforces my belief that this area needs zero-based rethinking.
The key distinction here is that this was a petition process, requiring actual identification of petitioners as registered voters. It was not an attempt to invade the ballot box and the secret ballot. The "privacy advocates" tried desperately to imply that the two are inherently linked; the Court held otherwise (slip op. at 10–13) at this stage of the litigation. As Chief Justice Roberts notes near the end:
The problem for plaintiffs is that their argument rests almost entirely on the specific harm they say would attend disclosure of the information on the R–71 petition, or on similarly controversial ones. But typical referendum petitions “concern tax policy, revenue, budget, or other state law issues.” Voters care about such issues, some quite deeply — but there is no reason to assume that any burdens imposed by disclosure of typical referendum petitions would be remotely like the burdens plaintiffs fear in this case.
Plaintiffs have offered little in response. They have provided us scant evidence or argument beyond the burdens they assert disclosure would impose on R–71 petition signers or the signers of other similarly controversial petitions. Indeed, what little plaintiffs do offer with respect to typical petitions in Washington hurts, not helps: Several other petitions in the State “have been subject to release in recent years,” plaintiffs tell us, but apparently that release has come without incident.
Slip op. at 11–12 (citations omitted). What is important in Doe is that the case is not over; it is being returned to the District Court to allow the plaintiffs to develop a record that would meet Justice Roberts' objections. This is the distinction between a "facial challenge" (that a given statute/regulation/whatever always violates the constitution) and an "as-applied challenge" (that, in the specific context of the specific case, the given statute/regulation/whatever violates those plaintiffs' constitutional rights, but not necessarily the rights of anyone else or plaintiffs in different contexts). It also points out the subtle distinctions among standards of review... but there's no way that I can possibly condense a fundamental meme that it takes about a year and a half of law school to beat into the heads of even the brightest students for this blawg, so I won't screw it up by trying. See slip op. at 10 n.2.
Labels: civil rights, jurisprudence, military, politics
link to: 15:33 [GMT-6]
Another pair of groups finish today.
Group C:
| US | 5 | +1 |
| England | 5 | +1 |
| Slovenia | 4 | 0 |
| Algeria | 1 | –2 |
after US 1:0 Algeria and Slovenia 0:1 England.
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This hasn't been a great tournament thus far for England, as indicated by this wonderful rendition of England's team. As my only feline friend the IPKat notes:
The big questions for IP fans are whether (i) the owner and any licensees of the rights in the characters featured in The Muppets may have grounds of action based on tarnishment of the reputation of these splendid creatures and (ii) Fifa will consider this to be an egregious act of ambush marketing in respect of which they will, given their well-known sense of humour, invoke the full range of criminal and civil sanctions as well as United Nations intervention.
I didn't watch the England game at all, and could give only half of my attention to the US match (due to other deadlines, etc.). That said, I spoke too soon about the referee's excellent reputation and track record: He and his assistants very nearly cost the US advancement to the round of sixteen with not one, but four dodgy decisions that essentially denied US goals. Dempsey's first-half goal was not offside; the elbow incident should have resulted in a red card and a penalty (and he and the assistant both had a clear line of sight); the wall was maybe eight yards away on that venomous free kick from Bradley, and I suspect that a full-distance wall would have frozen the keeper due to more ground to cover; and he missed a clear penalty against Altidore. Then there was the phantom handball/yellow card against Beasley... Two matches dropping four points due solely to officiating would have been too much!
At least this time, the US's early-in-the-match defensive frailty resulted only in a shot against the bar, and not a goal. Bob Bradley deserves a lot of credit for making appropriate lineup and tactical changes, although I still think the US would have been better off pushing the left back all the way into midfield; virtually all of Algeria's dangerous attacks came from midfield, not directly against the back line. Both teams deserve credit for trying to actually play football: Despite the defensive bias of Algeria's squad, the players really did try to score when they did have the ball. Conversely, the US played with urgency, but not desperation, throughout the match. Donovan's goal in stoppage time was just desserts, and the US kept a clean sheet at the World Cup for the first time in well over a decade. B+/B-/C+
Group D:
| Germany | 6 | +4 |
| Ghana | 4 | 0 |
| Australia | 4 | –3 |
| Serbia | 3 | –1 |
after Ghana 0:1 Germany and Serbia 1:2 Australia. I watched the Ghana match, between weather-related 'net outages. I think the commentators on ESPN3 were looking to create some controversy more than anything else... or else I was watching a slightly different match. Certainly in the first half, and for most of the second half, Germany was much more dangerous on offense than was Ghana. Although Ghana was able to play the ball around the outside of the German defense and get some decent chances on goal, the German defense (until about the 65th minute) never got into the desperate-tackle mode that we saw in Ghana's box as the German attack probed. That said, the German attack did look a little bit less potent without Klose. The officiating was quite good, largely because the teams were both more interested in winning through playing than winning through intimidation. In the end, Ghana's inability to control the center of the field came back to bite them at both ends. B-/B/A
So that leaves us with the following round-of-sixteen matches:
US : Ghana (26 June)
Germany : England (27 June)
Vengeance is the theme here — Ghana knocked the US out at the group stage the last time around, and England has been beaten by Germany quite a few times in tournaments.
link to: 10:11 [GMT-6]
This is a platter of monster-sized legal sausages.
The most significant changes actually contained in the bill, though, appear in §§ 11 through 13. Section 11 requires corporations that would sue for libel to demonstrate that the statement itself caused/is likely to cause "substantial financial loss" to the corporation. That is, it's not going to be enough to (hypothetically) claim that criticism that MacAdder's Fish Fingers actually contain Mrs Miggins' leftover muffins will "forseeably harm the standing of the MacAdder's brand in the marketplace"; instead, the corporation would have to show financial loss. Section 12 parallels § 11, but for individuals; and because of that, it requires merely "substantial harm" instead of "substantial financial loss." The key provision, though, is § 13, which will limit (but by no means end) "libel tourism" by requiring that claimants demonstrate harm "in the jurisdiction" (the UK) under the standards of §§ 11 and 12 for foreign publications.
Unfortunately, the bill — as Lord Lester admits is probably necessary for passage — does not make the single obvious reform that would make it make sense: It does not place the burden of proving that the statement in question was false on the claimant; instead, it maintains the illogical and insupportable "defendant must prove truth" system that distinguishes the UK from the US. This reflects class concerns as much as anything else. It is perhaps too much to expect that the UK's legal system would join the rest of the civilized world in recognizing that the balance between freedom of speech and personal reputation needs to be tilted in favor of speech and not of reputation.
This matters to US-based authors for three reasons. First, many "US" publishers are actually subsidiaries of UK-based media conglomerates, and continue to think about libel as if they're in the UK... which unduly restricts expression. Second, most warranty-and-indemnity clauses arguably make a US-based author the patsy for any libel claim in the UK; this can be a serious matter, as Rachel Ehrenfeld can attest. Third, and perhaps most important, US-based authors need to stop thinking about national borders as barriers; they are instead opportunities... except when local conditions across a border are unfair. In this context, a US-based author writing even a fictional account of, say, the current conflicts in Southwest Asia — perhaps another Clancyesque politco-hardware-store thriller — cannot stray too close to "real" persons in England, for fear of a crippling lawsuit. The additional protections provided in §§ 11–13 will help, if Lord Lester's bill becomes law.
US copyright law used to have "marking" requirements — one could lose the copyright in a work if it were published/performed without the proper copyright notice. Those with any experience at all in publishing or performance will recognize that this requires creators to trust parties who, themselves, have little incentive to do so... and all too often did not. This was a particular burden for foreign creators, as the US was almost unique in that marking requirement. Similarly, the creator could do everything proper in the country of origin and then a third- or fourth-hand licensee in the US could, through simple carelessness, lose the US copyright through improper marking or screwing up on registration and/or renewal.
In the course of acceding to the Berne Convention in 1988, the US was supposed to fix this; it didn't. Instead, it took a few more years, until the Uruguary Round agreement implemented in 1995 (and some elements of the Mickey MouseSonny Bono Copyright Term Extension Act of 1998) acted to provide restoration of copyrights on notice and with a limited safe harbor for non-US works that had fallen into these traps. Certain parties, such as Golan, who had "relied" on the public-domain status of these works filed suit claiming (among other things) that restoring these copyrights violating their (the "reliance parties") First Amendment rights to free speech.
The Tenth Circuit said that it doesn't. (Of course, I expect a petition for rehearing en banc almost immediately, followed by a petition to the Supreme Court.) In a carefully noninflammatory opinion, Chief Judge Briscoe disposed of each element of the constitutional argument raised by the reliance parties. The particular legislation dealt with a matter within Congress's discretion; it did so in a reasonably well-tailored manner; and that is all that is required, particularly since the reliance parties' claims that alternative methods might have been better tailored misstates the standard required: Congress's work is not required to be perfect, but merely good enough (slip op. at 29–31)... and, in any event, the "evidence" offered by the reliance parties did not persuade that their preferred alternative was, in fact, better.
In this particular instance, the reliance parties are being intellectually dishonest at best. They have failed to recognize that their perceptions of their own rights do not control here against the rights of others (in this instance, both US creators being harmed by foreign mistreatment of US copyright interests in retaliation against US hyperformality — and believe me, it's rampant — and the foreign creators directly at issue). Instead, they rely upon a version of "settled expectations," similar to the arguments made by slaveholders that their property could not be taken from them by a change in the law regarding ownership of human beings. Chief Judge Briscoe never reached this point; as I mentioned, his opinion is carefully noninflammatory.
But there's something more insidious involved in this dispute, too: It is disingenuous, intellectually dishonest, and downright deceptive to implicitly claim on the one hand that the reliance parties are entitled to continued commercial exploitation — that is, getting paid for their reuse-speech, directly or indirectly — while denying commercial exploitation to the originators of that which they would copy. "Free speech" does not always mean there is no financial cost for speech: It means that the government does not restrict it per se. The reliance parties' argument, however, assumes that "free speech" under the First Amendment instead requires that the government take positive steps to reduce the costs to them explicitly, in preference to other parties, instead of looking at total costs... if, that is, the government is obligated to look at private-party transactions concerning speech at all. Nothing in the underlying legislation prevents the reliance parties from negotiating license agreements with parties whose own speech is now being recognized as valid and protectable. In short, "information wants to be free" has little or nothing to do with "free speech," regardless of how one defines "free"; and in this instance, the disingenuous attempt to equate "free" under the First Amendment (that is, unrestricted) with "free" financial terms rightly failed.2
That said, there's something to be said for consistency, as it seems rather unfair to allow lawyer tricks in characterizing the cause of action to determine whether a jury is available.
Informationen möchten frei sein
≠
Informationen möchten nichts kosten
This should, perhaps, be obvious, because the First Amendment allows for "freedom of speech"; eliding that to "free speech" is itself a bit sloppy and misleading.
Labels: civil rights, copyright, culture, intellectual property, jurisprudence, mass media, politics, publishing
link to: 15:28 [GMT-6]
Groups A and B completed round-robin play today.
Group A:
| Uruguay | 7 | +3 |
| Mexico | 4 | +1 |
| South Africa | 4 | –1 |
| France | 1 | –2 |
after Uruguay 1:0 Mexico and France 1:2 South Africa. I switched back and forth between the two matches without watching either one in full, so no grades. France got more than they deserved: a goal. South Africa looked good, both before and after Gourcuff was rightly ejected, but ran out of steam and ideas early in the second half and never looked like pulling back two more goals, even before France pulled one back out of the blue. Conversely, the other match was just boring, but for the goal itself; neither side took many chances at all, knowing that a draw (or low-scoring win) would be sufficient to see both sides through to the knockout phase.
Group B:
| Argentina | 9 | +6 |
| Republic of [South] Korea | 4 | –1 |
| Greece | 3 | –3 |
| Nigeria | 1 | –2 |
after Argentina 2:0 Greece and Nigeria 2:2 South Korea. I mostly watched the Argentina match in the first half, thanks to glitches with ESPN3 with the English and German feeds in the other match, but not consistently enough to grade anything fairly. The Argentina match never looked like anything except an Argentinian win; the other was more entertaining, but also highly mistake-prone.
So that leaves us with the following octofinal matches:
Uruguay : South Korea (26 June)
Argentina ; Mexico (27 June)
Tomorrow, I'll be watching the US:Algeria match all the way through. Fortunately, they've assigned a very good referee.
link to: 15:20 [GMT-6]
At an unreasonably early hour — for the last time! — Group G finished up.
Portugal 7:0 People's Republic of [North] Korea — The first real blowout of the cup, with North Korea reverting to its FIFA ranking. A somewhat slow, tentative start by Portugal (not that they weren't trying to attack, but they didn't have much verve about themselves) and North Korea actually tried to play some football instead of laying back. That proved a severe error starting about 25 minutes in, when Portugal woke up and just crushed the Koreans. Even before Meireles actually scored, he had clearly decided he was going to do so... and then things were quiet until halftime. The other six goals came in the second half, the equivalent of scoring 42 points in an NFL game in a half — and it should have been at least two more, I can't understand how Coentrao missed that sitter (68th minute) or how Ronaldo didn't put away that glorious chance from 18m just after halftime. Credit to the referee for not letting the match get out of control... but he really had little to do, particularly in the second half, other than look to the assistant referee to see whether Portugal had beaten the offside trap or not. Overall, North Korea's tactical plan played right into Portugal's well-known tendencies. A/D/B+
So that leaves Group G looking like this, with one match remaining for each team:
| Brazil | 6 | +3 |
| Portugal | 4 | +7 |
| Ivory Coast | 1 | –2 |
| People's Republic of [North] Korea | 0 | –8 |
which creates a very simple situation:
Now on to Group H's second matches.
Switzerland 0:1 Chile — A dire match, particularly after the excessively harsh red card against Switzerland's Behrami; it was then just a question of tightening the grip on the match and waiting for a Swiss defender to slip at the wrong moment... which is exactly how South African-born Mark Gonzalez got his goal for Chile. No real credit to anyone here. B-/B-/C+
Spain 2:0 Honduras — Villa broke Spain's scoring drought in South Africa (remember, their last competitive match in South Africa was an 0:2 loss to the US that wasn't that close) with a nice individual effort, but tactically Del Bosque's side began the match far too statically... and then evolved into a side in which nobody was willing to do that hard work of marking up and ball-winning; I don't recall a successful Spanish tackle against a man in clear possession in the second half. Honduras really didn't make that an issue, though; a defense that just waited for an error in possession or errant pass was more than sufficient. The referee had a good match. B+/C/A-
So that leaves Group H looking like this, with one match remaining for each team:
| Chile | 6 | +2 |
| Spain | 3 | +1 |
| Switzerland | 3 | 0 |
| Honduras | 0 | –1 |
which creates a very complex situation with three teams still alive:
link to: 11:57 [GMT-6]
Wiley's position is wrong as a matter of law. Remember, unless a publishing agreement is WFH, it is not a sale: It is a licensing transaction, and licensors are entitled to know the terms of downstream transactions regarding their licensed products to ensure proper accounting and proper treatment of their marks and other license rights.
Q: I read online that this particular publisher is accept[ing] unagented manuscripts. But I'm worried. They're such a big company, what's to stop them from stealing my idea?
[1]If you are worried about copyright infringement, register your unpublished manuscript with the U.S. Copyright Office. However, the prevailing view is that copyright does not protect basic plots or unadorned ideas. To prove copyright infringement, a copyright owner must prove that the infringer copied protected material. [2]When courts are asked to determine whether infringement has occurred, they must disregard non-copyrightable elements (such as ideas and facts) and compare the copyrightable elements in the works. Unfortunately, no simple rule exists for distinguishing non-copyrightable ideas from their copyrightable expression. [3]If you feel your work has been infringed, contact a copyright attorney. [4]In addition, certain valuable ideas can be protected contractually. However, don't even think about asking a publisher to sign a non-disclosure or confidentiality agreement. Unless you are a major celebrity or political figure, no publisher will sign one.
Really now. A licensed attorney and "former publishing executive" should bloody well know better, even in an informal answer in an informal forum.
At least he didn't advocate the so-called "poor-man's copyright" (mailing a copy to one's self) — which is borrowed from patent law, ignores changes in evidence law, and has been useless for copyright purposes for a century.
This is a C+ answer at best.
Once again, this results from a too-narrow view of what it takes to "protect" an idea. Many of the "ideas" that authors have arise from invasion of privacy/right of publicity issues; from trade secrets (in the legal sense); and from aspects of unfair competition. In this particular instance, I think the answering lawyer is so focused on the 1909 Copyright Act concepts of "idea" and "scenes à faire" that have (wrongly) been extended to today by the Second Circuit that he has lost sight of what working authors think "ideas" are.
In short, this is a nearly useless answer.
Of course, the question wasn't a whole lot better. Part of a lawyer's job — even when answering a "general inquiry" or explaining a "general principle" — is to ensure that the issue(s) are accurately framed and stated. Here's a quick draft of a better (by no means perfect!) response:
Q: I read online that this particular publisher is accept[ing] unagented manuscripts. But I'm worried. They're such a big company, what's to stop them from stealing my idea?
Nothing. Publishers don't license (and then sell) "ideas"; they thrive on the expression of ideas. The idea itself, unless it is protectable under a specific legal theory or contract, is fair game for anyone in publishing. I think what you're really asking is this:
Q: How can I keep a publisher from just taking the good idea(s) out of my manuscript and assigning it/them to another writer without paying me?
It's really not in your power, or responsibility. Instead, publishing economics will generally do this: It will cost the publisher more to "assign" your idea to another author, in both time and money. (If you don't have substantial previous publishing credits or a really significant platform, the publisher isn't going to be paying you Stephen King/"James Patterson" money in the first place.) Further, publishers have long ago learned that relying upon ideas alone to sell books is a losing bet: The occasional outlying success story is outweighed in the long run by the failures.
The best protection for your "ideas" is to put them into the best possible manuscript. The closer your manuscript is to "ready for final edit," the less incentive a publisher has to "steal" the ideas. That means that the primary thing you can do to protect your ideas is learn to be a better writer. That also indirectly acts to protect your expression under the Copyright Act: It is in copyright at the moment you put it on paper (or has been since 1978 in the US, anyway), so the closer your manuscript is to "ready to publish," the more risk any publisher would be taking by just stealing the manuscript, editing it, and publishing it under another person's name.
That said, there are some kinds of "ideas" that will require additional protection... but registering your work in manuscript form with the Copyright Office will probably not provide that protection in the first place. If the manuscript involves original research of factual issues, or a living person's "life story," or the personal perspective of a participant in significant events (such as, but not only, being a "whistleblower"), there's a good chance that the facts themselves are protectable... and that you, as an author, are going to need appropriate advice, preferably from an attorney who specializes in the area or a highly experienced agent, on how to handle any confidentiality issues. If, however, the manuscript merely involves an original juxtaposition of existing ideas, such as Pride and Prejudice and Zombies, the only way to protect the "idea" is to do it so well that the publisher has no incentive to go elsewhere: Any later lawsuit will revolve not around copyright, but around unfair competition, and the only winner(s) will be the lawyer(s).
One last note: This advice (which is not legal advice for your particular situation; look at the disclaimer in the upper-right corner of the blawg) applies to print publishing. It does not apply to music publishing, or to dramatic work publishing (whether for screen or for stage); although many of the principles remain parallel, there are enough differences that those areas require both different procedures and different advice (same disclaimer).
X has a science degree/credential
∴
X is a scientist
∴
X's conclusions are based upon the scientific method
to which one need merely say "Lysenko" to refute the entire chain of reasoning: Scientists are people, and therefore fall prone to every human failing.
Some of that technical/procedural stuff is quite important. For example, in a 6–3 decision, the Court decided that on the facts in the specific matter the "material support for terrorism" statute does not violate the First Amendment (Holder v. Humanitarian Law Project, No. 08–1498). I think this is (narrowly) wrong, and relies far too much on trusting the government to apply it appropriately and fairly. The area, though, is a morass, and a blanket prohibition either way isn't so much unconsitutional as it is unsound policy; there are circumstances in which "material support for terrorism" without engaging in terrorism per se so attacks the foundation of the State that the State is virtually obligated to criminalize it. I would not have worded the underlying statute in that way — but then, neither would any experienced CT/CI analyst who also knows anything about the First Amendment... or about Eugene Debs. That, however, does not make the statute unconstitutional, and I'm not in a position to judge the factual circumstances of this matter. All around, this is a frustrating case that demonstrates the problems with relying upon ideology to answer hard questions: The reasoning in the majority opinion is less than thoroughly convincing.
Another technical issue — this one much more disturbing — appears in another hypertechnical opinion on arbitration. In Rent-a-Center, West, Inc. v. Jackson, No. 09–497, the Court held (5–4) that victims of unfair arbitration agreements are screwed, procedurally: They must challenge the arbitration clause directly to defeat unfair procedures within the arbitration clause... but other decisions by this Court have made clear that under those circumstances the decision on whether the procedures are, in fact, fair will almost always belong to the arbitrator, so nobody does that. The hint that something is awry here is that Justice Stevens wrote the dissent in an opinion concerning civil procedure: When Justice Stevens has written the dissent on a civil procedure question (not just voted to dissent), he has thus far invariably been right. A careful reading of Justice Scalia's opinion demonstrates that he still believes that there is no such thing as a "contract of adhesion."
Then there are the civil procedure chestnuts of "standing" and "scope of injunctions." Fortunately, this was probably the easiest case of the day for the Court. In Monsanto v. Geertson Seed Farms, No. 09–475, the Court decided 7–1 (Justice Breyer recused) that (1) both sides did have standing concerning regulatory action regarding certain genetically modified crops, and (2) the District Court screwed up in determining what kind of injunction it could (or could not) issue. The first issue is fairly apparent, and resolves a circuit split in favor of the Ninth Circuit's approach. The second issue is also fairly apparent, and reverses the Ninth Circuit... but looking at the timeline in the matter, the District Court was following circuit guidance that was overturned in the interim, so I'm not sure this counts as even "half a loss" for the Ninth Circuit. For whatever value that judgment has.
Finally, there's the enforceability of a choice of forum clause in the face of a statute that may, or may not, apply. In another 6–3 opinion, the Court held that the Carmack Amendment does not overrule a choice-of-forum clause found in a mixed-transportation-mode bill of lading signed in Japan and selecting Japan to hear disputes (Kawasaki v. Regal-Beloit Corp., No. 08–1553). In a 6–3 decision by Justice Kennedy (Justice Sotomayor wrote for herself and Justices Ginsburg and Stevens in dissent), the Court reached a predictable result: That a clause keeping a matter out of the US courts was enforceable. I think the dissent has slightly the better of the argument here, particularly as the underlying insurance memes in the matter (maritime v. rail transport) are completely incompatible and will eventually result in the "victim" getting thrown out of court (in Japan) on its ear... but if one accepts that the Court has been desperately trying to close the door the courthouse for about thirty years now, in the face of waves of litigation that the federal court system just can't handle due to quantity alone, this is the result consistent with that movement. It may not be correct, but it was predictable (especially since Justice Kennedy has been one of the most polite — but nonetheless staunch — advocates of the docket-control meme)!
Labels: arts, civil rights, copyright, culture, intellectual property, jurisprudence, mass media, politics, publishing, science
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Sausages?
Internet link sausages, as frequently appear here, are gathered from uninspected meaty internet products and byproducts via processes you really, really don't want to observe; spiced with my own secret, snarky, sarcastic blend; quite possibly extended with sawdust or other indigestibles; and stuffed into your monitor (instead of either real or artificial casings). They're sort of like "link salad" or "pot pourri" or "miscellaneous musings" (or, for that matter, "making law"), but far more disturbing.
I am not responsible for any changes to your lipid counts or blood pressure from consuming these sausages... nor for your monitor if you insist on covering them with mash or sauce.
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